**Exhibit 10.30**

**PBSJ EMPLOYEE PROFIT SHARING AND**

**STOCK OWNERSHIP PLAN AND TRUST AGREEMENT**

**PBSJ EMPLOYEE PROFIT SHARING AND**

**STOCK OWNERSHIP PLAN AND TRUST AGREEMENT**

**TABLE OF CONTENTS**

 

ARTICLE I
 DEFINITIONS  1
ARTICLE II
 ADMINISTRATION  16
    2.1
 POWERS AND RESPONSIBILITIES OF THE EMPLOYER  16
    2.2
 DESIGNATION OF ADMINISTRATIVE AUTHORITY  17
    2.3
 ALLOCATION AND DELEGATION OF RESPONSIBILITIES  17
    2.4
 POWERS AND DUTIES OF THE ADMINISTRATOR  17
    2.5
 RECORDS AND REPORTS  19
    2.6
 APPOINTMENT OF ADVISERS  19
    2.7
 PAYMENT OF EXPENSES  19
    2.8
 CLAIMS PROCEDURE  19
    2.9
 CLAIMS REVIEW PROCEDURE  20
ARTICLE III
 ELIGIBILITY  20
    3.1
 CONDITIONS OF ELIGIBILITY  20
    3.2
 EFFECTIVE DATE OF PARTICIPATION  21
    3.3
 DETERMINATION OF ELIGIBILITY  21
    3.4
 TERMINATION OF ELIGIBILITY  21
    3.5
 OMISSION OF ELIGIBLE EMPLOYEE  21
    3.6
 INCLUSION OF INELIGIBLE EMPLOYEE  22
    3.7
 REHIRED EMPLOYEES AND BREAKS IN SERVICE  22
    3.8
 ELECTION NOT TO PARTICIPATE  23
ARTICLE IV
 CONTRIBUTION AND ALLOCATION  23
    4.1
 FORMULA FOR DETERMINING EMPLOYER CONTRIBUTION  23
    4.2
 PARTICIPANT’S SALARY REDUCTION ELECTION  24
    4.3
 TIME OF PAYMENT OF EMPLOYER CONTRIBUTION  28
    4.4
 ALLOCATION OF CONTRIBUTION, FORFEITURES AND EARNINGS  28
    4.5
 ACTUAL DEFERRAL PERCENTAGE TESTS  34
    4.6
 ADJUSTMENT TO ACTUAL DEFERRAL PERCENTAGE TESTS  38
    4.7
 ACTUAL CONTRIBUTION PERCENTAGE TESTS  42
    4.8
 ADJUSTMENT TO ACTUAL CONTRIBUTION PERCENTAGE TESTS  46
    4.9
 MAXIMUM ANNUAL ADDITIONS  49
    4.10
 ADJUSTMENT FOR EXCESSIVE ANNUAL ADDITIONS  51
    4.11
 PLAN-TO-PLAN TRANSFERS FROM QUALIFIED PLANS  53
 

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    4.12
 ROLLOVERS FROM OTHER PLANS  54
    4.13
 DIRECTED INVESTMENT ACCOUNT  55
    4.14
 QUALIFIED MILITARY SERVICE  56
    4.15
 SPECIAL LIMITATION FOR COMMONWEALTH OF PUERTO RICO  56
ARTICLE V
 FUNDING AND INVESTMENT POLICY  56
    5.1
 INVESTMENT POLICY  56
    5.2
 APPLICATION OF CASH  57
    5.3
 LOANS TO THE TRUST  57
ARTICLE VI
 VALUATIONS  58
    6.1
 VALUATION OF THE TRUST FUND  58
    6.2
 METHOD OF VALUATION  59
ARTICLE VII
 DETERMINATION AND DISTRIBUTION OF BENEFITS  59
    7.1
 DETERMINATION OF BENEFITS UPON RETIREMENT  59
    7.2
 DETERMINATION OF BENEFITS UPON DEATH  59
    7.3.
 DETERMINATION OF BENEFITS IN EVENT OF DISABILITY  61
    7.4
 DETERMINATION OF BENEFITS UPON TERMINATION  61
    7.5
 DISTRIBUTION OF BENEFITS  63
    7.6
 HOW PLAN BENEFIT WILL BE DISTRIBUTED  68
    7.7
 DISTRIBUTION FOR MINOR OR INCOMPETENT BENEFICIARY  69
    7.8
 LOCATION OF PARTICIPANT OR BENEFICIARY UNKNOWN  69
    7.9
 RIGHT OF FIRST REFUSALS  70
    7.10
 STOCK CERTIFICATE LEGEND  71
    7.11
 PUT OPTION  71
    7.12
 NONTERMINABLE PROTECTIONS AND RIGHTS  73
    7.13
 PRE-RETIREMENT DISTRIBUTION  73
    7.14
 QUALIFIED DOMESTIC RELATIONS ORDER DISTRIBUTION  73
ARTICLE VIII
 TRUSTEE  74
    8.1
 BASIC RESPONSIBILITIES OF THE TRUSTEE  74
    8.2
 INVESTMENT POWERS AND DUTIES OF THE TRUSTEE  74
    8.3
 OTHER POWERS OF THE TRUSTEE  75
    8.4
 LOANS TO PARTICIPANTS  77
    8.5
 VOTING COMPANY STOCK  79
    8.6
 DUTIES OF THE TRUSTEE REGARDING PAYMENTS  79
    8.7
 TRUSTEE’S COMPENSATION AND EXPENSES AND TAXES  79
    8.8
 ANNUAL REPORT OF THE TRUSTEE  79
 

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    8.9
 AUDIT  80
    8.10
 RESIGNATION, REMOVAL AND SUCCESSION OF TRUSTEE  81
    8.11
 TRANSFER OF INTEREST  81
    8.12
 TRUSTEE INDEMNIFICATION  82
    8.13
 DIRECT ROLLOVER  82
ARTICLE IX
 AMENDMENT, TERMINATION AND MERGERS  83
    9.1
 AMENDMENT  83
    9.2
 TERMINATION  84
    9.3
 MERGER, CONSOLIDATION OR TRANSFER OF ASSETS  84
ARTICLE X
 TOP HEAVY  85
    10.1
 TOP HEAVY PLAN REQUIREMENTS  85
    10.2
 DETERMINATION OF TOP HEAVY STATUS  85
ARTICLE XI
 MISCELLANEOUS  88
    11.1
 PARTICIPANT’S RIGHTS  88
    11.2
 ALIENATION  88
    11.3
 CONSTRUCTION OF PLAN  89
    11.4
 GENDER AND NUMBER  89
    11.5
 LEGAL ACTION  89
    11.6
 PROHIBITION AGAINST DIVERSION OF FUNDS  89
    11.7
 EMPLOYER’S AND TRUSTEE’S PROTECTIVE CLAUSE  90
    11.8
 INSURER’S PROTECTIVE CLAUSE  90
    11.9
 RECEIPT AND RELEASE FOR PAYMENTS  90
    11.10
 ACTION BY THE EMPLOYER  90
    11.11
 NAMED FIDUCIARIES AND ALLOCATION OF RESPONSIBILITY  90
    11.12
 HEADINGS  91
    11.13
 APPROVAL BY INTERNAL REVENUE SERVICE  91
    11.14
 UNIFORMITY  92
    11.15
 SECURITIES AND EXCHANGE COMMISSION APPROVAL  92
ARTICLE XII
 PARTICIPATING EMPLOYERS  92
    12.1
 ADOPTION BY OTHER EMPLOYERS  92
    12.2
 REQUIREMENTS OF PARTICIPATING EMPLOYERS  92
    12.3
 DESIGNATION OF AGENT  92
    12.4
 EMPLOYEE TRANSFERS  93
    12.5
 PARTICIPATING EMPLOYER CONTRIBUTION AND FORFEITURES  93
    12.6
 AMENDMENT  93
    12.7
 DISCONTINUANCE OF PARTICIPATION  93
    12.8
 ADMINISTRATOR’S AUTHORITY  94
 

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**PBSJ EMPLOYEE PROFIT SHARING AND**

**STOCK OWNERSHIP PLAN AND TRUST AGREEMENT**

THIS AGREEMENT, hereby made andentered into this      day of                     , 200   by and between Post, Buckley,Schuh & Jernigan, Inc. (herein referred to as the “Employer”) and Michael E. Dozzi, Mark A. Ramseur, Sara Maples, Wayne J. Overman, Reynaldo A. Cortez, Charles D. Nostra, Donald R. Vogt, Wade C. Kelly, Sharon M. Phillips, CharlesR. Redding, III and Barry J. Schulz (herein referred to as the “Trustees”). 

**WITNESSETH:**

WHEREAS, the Employer heretofore established this plan effective January 1, 1985, (hereinafter called the “Effective Date”) as a profitsharing plan, and as employee stock ownership plan , effective October 1, 1994 in recognition of the contribution made to its successful operation by its employees and for the exclusive benefit of its eligible employees; and 

WHEREAS, this plan known as PBSJ Employee Profit Sharing and Stock Ownership Plan and Trust Agreement (hereafter referred to as the “Plan”) waspreviously amended and restated effective January 1, 1997; and 

WHEREAS, the Employer has adopted the following amendments to the PBSJEmployee Profit Sharing And Stock Ownership Plan and Trust: Amendment No. 1 on September 18, 2002; Amendment No. 2 on March 25, 2003; Amendment No. 3 on March 30, 2004; Amendment No. 4 on May 25, 2004;Amendment No. 5 on January 19, 2004; Amendment No. 6 on January 26, 2005; Amendment No. 7 on March 29, 2005; and the Mandatory Distribution Amendment on March 28, 2005. 

WHEREAS, under the terms of the Plan, the Employer has the ability to amend the Plan, provided the Trustee joins in such amendment if the provisions ofthe Plan affecting the Trustee are amended; and 

WHEREAS, contributions to the Plan will be made by the Employer and such contributionsmade to the trust will be invested primarily in the capital stock of the Employer; 

NOW, THEREFORE, effective January 1, 2007, exceptas otherwise provided, the Employer and the Trustee in accordance with the provisions of the Plan pertaining to amendments thereof, hereby amend the Plan in its entirety and restate the Plan to provide as follows: 

**ARTICLE I**

**DEFINITIONS**

1.1 “Act” means the Employee Retirement Income Security Act of 1974, as it may be amended from time to time. 

 

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1.2 “Administrator” means the Employer unless another person or entity has been designated bythe Employer pursuant to Section 2.2 to administer the Plan on behalf of the Employer. 

1.3 “Affiliated Employer” means anycorporation which is a member of a controlled group of corporations (as defined in Code Section 414(b)) which includes the Employer; any trade or business (whether or not incorporated) which is under common control (as defined in CodeSection 414(c)) with the Employer; any organization (whether or not incorporated) which is a member of an affiliated service group (as defined in Code Section 414(m)) which includes the Employer; and any other entity required to beaggregated with the Employer pursuant to Regulations under Code Section 414(o). 

1.4 “Aggregate Account” means, with respectto each Participant, the value of all accounts maintained on behalf of a Participant, whether attributable to Employer or Employee contributions, subject to the provisions of Section 10.2. 

1.5 “Anniversary Date” means the last day of the Plan Year. 

1.6 “Beneficiary” means the person (or entity) to whom the share of a deceased Participant’s total account is payable, subject to the restrictions of Sections 7.2 and 7.5. For purposes of Sections7.5(f) and 7.5(g), “designated Beneficiary” is the person designated under Code Section 401(a)(9) and Regulation 1.401(a)(9)-4. 

1.7 “Catch-Up Contribution” means Deferred Compensation made by a Catch-Up Eligible Participant that exceeds, during any taxable year of such Participant: 

(a) a statutory limit on Deferred Compensation or “annual additions” provided in Code Sections 401(a)(30), 402(h), 403(b), 408, 415(c), or457(b)(2) (without regard to Code Section 457(b)(3), as applicable; or 

(b) a Plan limit on Deferred Compensation which is not a limitprovided in (a) above. 

1.8 “Catch-Up Eligible Participant” means an Employee who: 

(a) is eligible to defer Compensation pursuant to Section 4.2; and 

(b) will attain age 50 or higher before the end of the Employee’s taxable year. 

1.9 “Code”means the Internal Revenue Code of 1986, as amended or replaced from time to time. 

1.10 “Company Stock” means common stockissued by the Employer (or by a corporation which is a member of the controlled group of corporations of which the Employer is a member) which is readily tradeable on an established securities market. If there is no common stock which meets theforegoing requirement, the term “Company Stock” means common stock issued by the Employer (or by a corporation which is a member of the same controlled group) having a combination of voting power and dividend rights 

 

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equal to or in excess of: (A) that class of common stock of the Employer (or of any other such corporation) having the greatest voting power, and(B) that class of common stock of the Employer (or of any other such corporation) having the greatest dividend rights. Noncallable preferred stock shall be deemed to be “Company Stock” if such stock is convertible at any time intostock which constitutes “Company Stock” hereunder and if such conversion is at a conversion price which (as of the date of the acquisition by the Trust) is reasonable. For purposes of the preceding sentence, pursuant to Regulations,preferred stock shall be treated as noncallable if after the call there will be a reasonable opportunity for a conversion which meets the requirements of the preceding sentence. 

1.11 “Company Stock Account” means the account of a Participant which is credited with the shares of Company Stock purchased and paid for bythe Trust Fund or contributed to the Trust Fund. 

A separate accounting shall be maintained with respect to that portion of the CompanyStock Account attributable to Elective Contributions and Non-Elective Contributions. 

1.12 “Compensation” means the total amountpaid by the Employer to the Employee in the course of Employer’s trade or business and 

(a) excluding (even if includible in grossincome) reimbursements or other expense allowances, fringe benefits (cash or noncash), moving expenses, deferred compensation, and welfare benefits. 

(b) excluding overtime. 

(c) excluding commissions. 

(d) excluding bonuses. 

(e) excludingCompensation in excess of $150,000 or such larger amount as the Commissioner of Internal Revenue may prescribe. 

(f) including amountswhich are contributed by the Employer pursuant to a salary reduction agreement and which are not includible in the gross income of the Participant under Code Sections 125, 132(0(4), 402(e)(3), 402(h)(l)(B), 403(b) or 457(b), and Employeecontributions described in Code Section 414(h)(2) that are treated as Employer contributions For purposes of Code Section 125, amounts under Code Section 125 include any amounts not available to a Participant in cash in lieu of grouphealth coverage because the Participant is unable to certify that the Participant has other health coverage. An amount will be treated as an amount under Code Section 125 only if the Employer does not request or collect information regardingthe Participant’s other health coverage as part of the enrollment process for the health plan. 

 

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For a Participant’s initial year of participation, Compensation shall be recognized as of suchEmployee’s effective date of participation pursuant to Section 3.2. 

If any class of Employees is excluded from the Plan, thenCompensation for any Employee who becomes eligible or ceases to be eligible to participate during a Plan Year shall only include Compensation while the Employee is an Eligible Employee. 

For purposes of this Section, if the Plan is a plan described in Code Section 413(c) or 414(f) (a plan maintained by more than one Employer), thelimitation applies separately with respect to the Compensation of any Participant from each Employer maintaining the Plan. 

1.13“Contract” or “Policy” means any life insurance policy, retirement income policy or annuity policy (group or individual) issued pursuant to the terms of the Plan. In the event of any conflict between the terms of this Plan andthe terms of any contract purchased hereunder, the Plan provisions shall control. 

1.14 “Current Obligations” means Trustobligations arising from extension of credit to the Trust and payable in cash within (1) year from the date an Employer contribution is due. 

1.15 “Deferred Compensation” with respect to any Participant means the amount of the Participant’s total Compensation which has been contributed to the Plan in accordance with the Participant’s deferral election pursuantto Section 4.2 excluding any such amounts distributed as excess “annual additions” pursuant to Section 4.10. Deferred Compensation (including Catch-Up Contributions) shall not exceed “415 Compensation.” 

1.16 “Distribution Calendar Year” means a calendar year for which a minimum distribution pursuant to Sections 7.5(f) and 7.5(g) is required.For distributions beginning before the Participant’s death, the first Distribution Calendar Year is the calendar year immediately preceding the calendar year which contains the Participant’s required beginning date underSection 7.5(f). For distributions beginning after the Participant’s death, the first Distribution Calendar Year is the calendar year in which distributions are required to begin under Section 7.5(g)(2). The required minimumdistribution for the Participant’s first Distribution Calendar Year will be made on or before the Participant’s required beginning date. The required minimum distribution for other Distribution Calendar Years, including the requiredminimum distribution for the Distribution Calendar Year in which the Participant’s required beginning date occurs, will be made on or before December 31st of that Distribution Calendar Year. 

1.17 “Early Retirement Date.” This Plan does not provide for a retirement date prior to Normal Retirement Date. 

1.18 “Elective Contribution” means the Employer contributions to the Plan of Deferred Compensation excluding any such amounts distributed asexcess “annual additions” pursuant to Section 4.10. In addition, the Employer matching contribution made pursuant to Section 4.1(b) which is used to satisfy the “Actual Deferral Percentage” tests and any EmployerQualified Non-Elective Contribution made pursuant to Section 4.1(c) and Section 4.6(b) which is used to satisfy the “Actual Deferral Percentage” tests shall 

 

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be considered an Elective Contribution for purposes of the Plan. Any contributions deemed to be Elective Contributions (whether or not used to satisfy the“Actual Deferral Percentage” (“ADP”) tests or the “Actual Contribution Percentage” (“ACP”) tests) shall be subject to the requirements of Sections 4.2(b) and 4.2(c) and shall further be required to satisfy thenondiscrimination requirements of Regulation 1.401(k)-1(b)(5) and Regulation 1.401(m)-1(b)(5), the provisions of which are specifically incorporated herein by reference. 

1.19 “Eligible Employee” means any Employee. 

Employees who are Leased Employees within themeaning of Code Sections 414(n)(2) and 414(o)(2) shall not be eligible to participate in this Plan. 

Employees who are non-resident alienswho receive no earned income from sources within the United States shall not be eligible to participate in this Plan. 

Employees whoseemployment is governed by the terms of a collective bargaining agreement between Employee representatives (within the meaning of Code Section 7701(a)(46)) and the Employer under which retirement benefits were the subject of good faithbargaining between the parties will not be eligible to participate in this Plan unless such agreement expressly provides for coverage in this Plan. 

Employees of Affiliated Employers shall not be eligible to participate in this Plan unless such Affiliated Employers have specifically adopted this Plan in writing. Effective for Plan Years beginning on or after January 1, 2007,PBS&J Caribe Engineering, C.S.P. shall not be a participating Affiliated Employer and none of its Employees shall be eligible to participate or receive a contribution on or after such date. 

Individuals classified by the Employer as independent contractors or employees otherwise excludable from the Plan who are subsequently determined by theInternal Revenue Service or by other binding determination that such an individual is an Employee or Lease Employee shall not be an Eligible Employee and shall not be eligible to participate in this Plan. 

1.20 “Employee” means any person who is employed by the Employer or Affiliated Employer, and excludes any person who is employed as anindependent contractor. Employee shall include Leased Employees within the meaning of Code Sections 414(n)(2) and 414(o)(2) unless such Leased Employees are covered by a plan described in Code Section 414(n)(5) and such Leased Employees do notconstitute more than 20% of the recipient’s non-highly compensated work force. 

1.21 “Employer” means Post, Buckley,Schuh & Jernigan, Inc. and, after January 1, 2007, means The PBSJ Corporation and any successor which shall maintain this Plan; and any predecessor which has maintained this Plan. The Employer is a corporation with principal offices inthe State of Florida. In addition, where appropriate, the term Employer shall include any Participating Employer (as defined in Section 12.1) which shall adopt this Plan. 

 

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1.22 “Excess Aggregate Contributions” means, with respect to any Plan Year, the excess of theaggregate amount of the Employer matching contributions made pursuant to Section 4.1(b) and any qualified non-elective contributions or elective deferrals taken into account pursuant to Section 4.7(c) on behalf of Highly CompensatedParticipants for such Plan Year, over the maximum amount of such contributions permitted under the limitations of Section 4.7(a) (determined by hypothetically reducing contributions made on behalf of Highly Compensated Participants in order ofthe actual contribution ratios beginning with the highest of such ratios). Such determination shall be made after first taking into account corrections of any Excess Deferred Compensation pursuant to Section 4.2 and taking into account anyadjustments of any Excess Contributions pursuant to Section 4.6. 

1.23 “Excess Contributions” means, with respect to a PlanYear, the excess of Elective Contributions used to satisfy the “Actual Deferral Percentage” tests made on behalf of Highly Compensated Participants for the Plan Year over the maximum amount of such contributions permitted underSection 4.5(a) (determined by hypothetically reducing contributions made on behalf of Highly Compensated Participants in order of the actual deferral ratios beginning with the highest of such ratios). Excess Contributions shall be treated as an“annual addition” pursuant to Section 4.9(b). 

1.24 “Excess Deferred Compensation” means, with respect to anytaxable year of a Participant, the excess of the aggregate amount of such Participant’s Deferred Compensation and the elective deferrals pursuant to Section 4.2(e) actually made on behalf of such Participant for such taxable year, over thedollar limitation provided for in Code Section 402(g), which is incorporated herein by reference. Excess Deferred Compensation shall be treated as an “annual addition” pursuant to Section 4.9(b) when contributed to the Planunless distributed to the affected Participant not later than the first April 15th following the close of the Participant’s taxable year. Additionally, for purposes of Sections 10.2 and 4.4(i), Excess Deferred Compensation shall continueto be treated as Employer contributions even if distributed pursuant to Section 4.2(e). However, Excess Deferred Compensation of Non-Highly Compensated Participants is not taken into account for purposes of Section 4.5(a) to the extentsuch Excess Deferred Compensation occurs pursuant to Section 4.2(d). 

1.25 “ESOP” means an employee stock ownership planthat meets the requirements of Code Section 4975(e)(7) and Regulation 54.4975-11. 

1.26 “Exempt Loan” means a loan made tothe Plan by a disqualified person or a loan to the Plan which is guaranteed by a disqualified person and which satisfies the requirements of Section 2550.408b-3 of the Department of Labor Regulations, Section 54.4975-7(b) of the TreasuryRegulations and Section 5.3 hereof. 

1.27 “Fiduciary” means any person who (a) exercises any discretionary authority ordiscretionary control respecting management of the Plan or exercises any authority or control respecting management or disposition of its assets, (b) renders investment advice for a fee or other compensation, direct or indirect, with respect toany monies or other property of the Plan or has any authority or responsibility to do so, or (c) has any discretionary authority or discretionary responsibility in the administration of the Plan. 

 

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1.28 “Fiscal Year” means the Employer’s accounting year of 12 months commencing onOctober 1 of each year and ending the following September 30. 

1.29 “Forfeiture” means that portion of aParticipant’s Account that is not Vested, and occurs on the earlier of: 

(a) the distribution of the entire Vested portion of theParticipant’s Account of a Former Participant who has severed employment with the Employer, or 

(b) the last day of the Plan Year inwhich a Former Participant who has severed employment with the Employer incurs five (5) consecutive 1-Year Breaks in Service. 

Regardless of the preceding provisions, if a Former Participant is eligible to share in the allocation of Employer contributions or Forfeitures in the year in which the Forfeiture would otherwise occur, then the Forfeiture will not occuruntil the end of the first Plan Year for which the Former Participant is not eligible to share in the allocation of Employer contributions or Forfeitures. Furthermore, the term “Forfeiture” shall also include amounts deemed to beForfeitures pursuant to any other provision of this Plan. 

1.30 “Former Participant” means a person who has been a Participant,but who has ceased to be a Participant for any reason. 

1.31 “414(s) Compensation” means any definition of compensation thatsatisfies the nondiscrimination requirements of Code Section 414(s) and the Regulations thereunder. The period for determining 414(s) Compensation must be either the Plan Year or the calendar year ending with or within the Plan Year. AnEmployer may further limit the period taken into account to that part of the Plan Year or calendar year in which an Employee was a Participant in the component of the Plan being tested. The period used to determine 414(s) Compensation must beapplied uniformly to all Participants for the Plan Year. 

1.32 “Highly Compensated Employee” or “HCE” means an Employeedescribed in Code Section 414(q) and the Regulations thereunder, and generally means any Employee who: 

(a) was a “five percentowner” as defined in Section 1.36(b) at any time during the “determination year” or the “look-back year”; or 

(b) for the “look-back year” had “415 Compensation” from the Employer in excess of $80,000 and were in the Top Paid Group of Employees for the Plan Year. The $80,000 amount is adjusted at the same time and in the samemanner as under Code Section 415(d), except that the base period is the calendar quarter ending September 30, 1996. 

 

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The “determination year” means the Plan Year for which testing is being performed, and the“look back year” means the immediately preceding twelve (12) month period. 

A highly compensated former Employee is based onthe rules applicable to determining Highly Compensated Employee status as in effect for the “determination year,” in accordance with Regulation 1.414(q)-1T, A-4 and IRS Notice 97-45 (or any superseding guidance). 

In determining who is a Highly Compensated Employee, Employees who are non-resident aliens and who received no earned income (within the meaning of CodeSection 911(d)(2)) from the Employer constituting United States source income within the meaning of Code Section 861(a)(3) shall not be treated as Employees. Additionally, all Affiliated Employers shall be taken into account as a singleemployer and Leased Employees within the meaning of Code Sections 414(n)(2) and 414(o)(2) shall be considered Employees unless such Leased Employees are covered by a plan described in Code Section 414(n)(5) and are not covered in any qualifiedplan maintained by the Employer. The exclusion of Leased Employees for this purpose shall be applied on a uniform and consistent basis for all of the Employer’s retirement plans. Highly Compensated Former Employees shall be treated as HighlyCompensated Employees without regard to whether they performed services during the “determination year.” 

1.33 “HighlyCompensated Participant” means any Highly Compensated Employee who is eligible to participate in the component of the Plan being tested. 

1.34 “Hour of Service” means, for purposes of vesting and benefit accrual, (1) each hour for which an Employee is directly or indirectly compensated or entitled to compensation by the Employer for the performance of duties(these hours will be credited to the Employee for the computation period in which the duties are performed); (2) each hour for which an Employee is directly or indirectly compensated or entitled to compensation by the Employer (irrespective ofwhether the employment relationship has terminated) for reasons other than performance of duties (such as vacation, holidays, sickness, jury duty, disability, lay-off, military duty or leave of absence) during the applicable computation period(these hours will be calculated and credited pursuant to Department of Labor regulation 2530.200b-2 which is incorporated herein by reference); (3) each hour for which back pay is awarded or agreed to by the Employer without regard tomitigation of damages (these hours will be credited to the Employee for the computation period or periods to which the award or agreement pertains rather than the computation period in which the award, agreement or payment is made). The same Hoursof Service shall not be credited both under (1) or (2), as the case may be, and under (3). 

Hours of Service will be based on actualhours for Employees for whom actual hours are recorded or maintained and will be based on the weekly equivalency method (45 hours per week) for Employees for whom actual hours are not determinable or recorded. 

 

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Notwithstanding (2) above, (i) no more than 501 Hours of Service are required to be credited toan 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); (ii) an hour for which an Employee is directly or indirectly paid, orentitled to payment, on account of a period during which no duties are performed is not required to be credited to the Employee if such payment is made or due under a plan maintained solely for the purpose of complying with applicable worker’scompensation, or unemployment compensation or disability insurance laws; and (iii) Hours of Service are not required to be credited for a payment which solely reimburses an Employee for medical or medically related expenses incurred by theEmployee. 

For purposes of (2) above, a payment shall be deemed to be made by or due from the Employer regardless of whether suchpayment is made by or due from the Employer directly, or indirectly through, among others, a trust fund, or insurer, to which the Employer contributes or pays premiums and regardless of whether contributions made or due to the trust fund, insurer,or other entity are for the benefit of particular Employees or are on behalf of a group of Employees in the aggregate. 

For purposes ofthis Section, Hours of Service will be credited for employment with other Affiliated Employers. The provisions of Department of Labor regulations 2530.200b-2(b) and (c) are incorporated herein by reference. 

1.35 “Income” means the income or losses allocable to Excess Deferred Compensation, Excess Contributions or Excess Aggregate Contributionswhich amount shall be allocated in the same manner as income or losses are allocated pursuant to Section 4.4(d). 

1.36“Investment Manager” means an entity that (a) has the power to manage, acquire, or dispose of Plan assets and (b) acknowledges nonfiduciary responsibility to the Plan in writing. Such entity must be a person, firm, or corporationregistered as an investment adviser under the Investment Advisers Act of 1940, a bank, or an insurance company. 

1.37 “KeyEmployee” means an Employee as defined in Code Section 416(i) and the Regulations thereunder. Generally, any Employee or former Employee (as well as each of the Employee’s or former Employee’s Beneficiaries) is considered a KeyEmployee if the Employee’s or former Employee’s, at any time during the Plan Year that contains the “determination date,” has been included in one of the following categories: 

(a) an officer of the Employer (as that term is defined within the meaning of the Regulations under Code Section 416) having annual “415Compensation” greater than $130,000 adjusted at the same time and in the same manner as under Code Section 415(d). 

(b) a“five percent owner” of the Employer. “Five percent owner” means any person who owns (or is considered as owning within the meaning of Code Section 318) more than five percent (5%) of the outstanding stock of theEmployer or stock possessing 

 

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more than five percent (5%) of the total combined voting power of all stock of the Employer or, in the case of an unincorporated business, any personwho owns more than five percent (5%) of the capital or profits interest in the Employer. In determining percentage ownership hereunder, employers that would otherwise be aggregated under Code Sections 414(b), (c), (m) and (o) shall betreated as separate employers. 

(c) a “one percent owner” of the Employer having an annual “415 Compensation” from theEmployer of more than $150,000. “One percent owner” means any person who owns (or is considered as owning within the meaning of Code Section 318) more than one percent (1%) of the outstanding stock of the Employer or stockpossessing more than one percent (1%) of the total combined voting power of all stock of the Employer or, in the case of an unincorporated business, any person who owns more than one percent (1%) of the capital or profits interest in theEmployer. In determining percentage ownership hereunder, employers that would otherwise be aggregated under Code Sections 414(b), (c), (m) and (o) shall be treated as separate employers. However, in determining whether an individual has“415 Compensation” of more than $150,000, “415 Compensation” from each employer required to be aggregated under Code Sections 414(b), (c), (m) and (o) shall be taken into account. 

For purposes of this Section, the determination of “415 Compensation” shall be made by including amounts which are contributed by the Employerpursuant to a salary reduction agreement and which are not includible in the gross income of the Participant under Code Sections 125, 132(0(4), 402(e)(3), 402(h)(1)(B), 403(b) or 457(b), and Employee contributions described in CodeSection 414(h)(2) that are treated as Employer contributions. 

1.38 “Late Retirement Date” means the Anniversary Datecoinciding with or next following a Participant’s actual Retirement Date after having reached Normal Retirement Date. 

1.39“Leased Employee” means any person (other than an Employee of the recipient Employer) who pursuant to an agreement between the recipient Employer and any other person or entity (“leasing organization”) has performed services forthe recipient (or for the recipient and related persons determined in accordance with Code Section 414(n)(6)) on a substantially full time basis for a period of at least one year, and such services are performed under primary direction orcontrol by the recipient Employer. Contributions or benefits provided a Leased Employee by the leasing organization which are attributable to services performed for the recipient Employer shall be treated as provided by the recipient Employer.Furthermore, Compensation for a Leased Employee shall only include Compensation from the leasing organization that is attributable to services performed for the recipient Employer. A Leased Employee shall not be considered an Employee of therecipient Employer: 

(a) if such employee is covered by a money purchase pension plan providing: 

(1) a nonintegrated employer contribution rate of at least 10% of compensation, as defined in Code Section 415(c)(3); 

 

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(2) immediate participation; 

(3) full and immediate vesting; and 

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

1.40 “LifeExpectancy” computed, for purposes of Sections 7.5(0 and 7.5(g), using the Single Life Table in Regulation 1.401(a)(9)-9. 

1.41“Non-Elective Contribution” means the Employer contributions to the Plan excluding, however, contributions made pursuant to the Participant’s deferral election provided for in Section 4.2 and any Qualified Non-ElectiveContribution used in the “Actual Deferral Percentage” tests. 

1.42 “Non-Highly Compensated Participant” means anyParticipant who is not a Highly Compensated Employee. However, for purposes of Section 4.5 and Section 4.7, if the prior year testing method is used, a Non-Highly Compensated Participant shall be determined using the definition of HighlyCompensated Employee in effect for the preceding Plan Year. 

1.43 “Non-Key Employee” means any Employee or former Employee (andsuch Employee’s or former Employee’s Beneficiaries) who is not a Key Employee. 

1.44 “Normal Retirement Age” means theParticipant’s 65 birthday. A Participant shall become fully Vested in the Participant’s Account upon attaining Normal Retirement Age. 

1.45 “Normal Retirement Date” means the Anniversary Date nearest the Participant’s Normal Retirement Age. 

1.46“1-Year Break in Service” means, for purposes of vesting, the applicable computation period during which an Employee has not completed more than 500 Hours of Service with the Employer. Further, solely for the purpose of determining whethera Participant has incurred a 1-Year Break in Service, Hours of Service shall be recognized for “authorized leaves of absence” and “maternity and paternity leaves of absence.” Years of Service and 1-Year Breaks in Service shall bemeasured on the same computation period. 

“Authorized leave of absence” means an unpaid, temporary cessation from activeemployment with the Employer pursuant to an established nondiscriminatory policy, whether occasioned by illness, military service, or any other reason. 

A “maternity or paternity leave of absence” means an absence from work for any period by reason of the Employee’s pregnancy, birth of the Employee’s child, placement of a child with the Employee inconnection with the adoption of such child, or any absence for the purpose of caring for such child for a period immediately following such birth or placement. For this purpose, Hours of Service shall be credited for the computation period in whichthe absence from work begins, only if credit therefore is necessary to 

 

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prevent the Employee from incurring a 1-Year Break in Service, or, in any other case, in the immediately following computation period. The Hours of Servicecredited for a “maternity or paternity leave of absence” shall be those which would normally have been credited but for such absence, or, in any case in which the Administrator is unable to determine such hours normally credited, eight(8) Hours of Service per day. The total Hours of Service required to be credited for a “maternity or paternity leave of absence” shall not exceed the number of Hours of Service needed to prevent the Employee from incurring a 1-YearBreak in Service. 

1.47 “Other Investments Account” means the account of a Participant which is credited with suchParticipant’s share of the net gain (or loss) of the Plan, Forfeitures and Employer contributions in other than Company Stock and which is debited with payments made to pay for Company Stock. 

A separate accounting shall be maintained with respect to that portion of the Other Investments Account attributable to Elective Contributions andNon-Elective Contributions. 

1.48 “Participant” means any Eligible Employee who participates in the Plan and has not for anyreason become ineligible to participate further in the Plan. 

1.49 “Participant’s Account” means the account established andmaintained by the Administrator for each Participant with respect to such Participant’s total interest in the Plan and Trust resulting from the Employer Non-Elective Contributions. 

A separate accounting shall be maintained with respect to that portion of the Participant’s Account attributable to Employer matching contributionsmade pursuant to Section 4.1(b), Employer discretionary contributions made pursuant to Section 4.1(d) and any Employer Qualified Non-Elective Contributions. 

1.50 “Participant’s Account Balance” means the account balance as of the last Valuation Date in the calendar year immediately preceding the Distribution Calendar Year (valuation calendar year) increasedby 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 theValuation Date. The account balance for the valuation calendar year includes any amounts rolled over or transferred to the Plan either in the valuation calendar year or in the Distribution Calendar Year if distributed or transferred in the valuationcalendar year. 

1.51 “Participant’s Combined Account” means the total aggregate amount of each Participant’s ElectiveAccount and Participant’s Account. 

1.52 “Participant’s Elective Account” means the account established and maintainedby the Administrator for each Participant with respect to the Participant’s total interest in the Plan and Trust resulting from the Employer Elective Contributions used to satisfy the “Actual Deferral Percentage” tests. A separateaccounting shall be maintained with respect to that portion of the Participant’s 

 

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Elective Account attributable to such Elective Contributions pursuant to Section 4.2 (including a separate accounting for Catch-Up Contributions) andany Employer Qualified Non-Elective Contributions. 

For Plan Year beginning on or after January 1, 2007, the Participant’sElective Account shall be comprised of Pre-Tax Elective Deferrals and Roth Elective Deferrals. 

“Pre-Tax Elective Deferrals”means a Participant’s Elective Deferrals, made pursuant to a salary reduction election designating such deferrals as pre-tax, which are not includable in the Participant’s gross income at the time deferred. 

“Roth Elective Deferrals” means a Participant’s Roth Elective Deferrals, made pursuant to a salary reduction election, designating suchdeferrals as Roth Elective Deferrals includable in the Participant’s income at the time the Participant would have received that amount in cash if the Participant had not made a salary reduction election. Roth contributions are not consideredemployee contributions for nay purpose under the plan. 

Pre-Tax Elective Deferrals and Roth Elective Deferrals are designated irrevocablyby the Participant at the time of the salary reduction election as either a Pre-Tax Elective Deferral or Roth Elective Deferral. Pre-Tax Elective Deferrals and Roth Elective Deferrals are each subject to a separate accounting that shall bemaintained with respect to that portion of the Participant’s Elective Account attributable to such Pre-Tax Elective Deferrals or Roth Elective Deferrals pursuant to Section 4.2 (including a separate accounting for Catch-Up Contributions)and any gains or losses attributed to each and any Employer Qualified Non-Elective Contributions. 

1.53 “Participant’s RolloverAccount” means the account established and maintained by the Administrator for each Participant with respect to such Participant’s interest in the Plan resulting from amounts transferred from another plan or “conduit” IndividualRetirement Account in accordance with Section 4.12. 

A separate accounting shall be maintained with respect to that portion of theParticipant’s Rollover Account attributable to after-tax Employee contributions. 

1.54 “Participant’s Transfer Account”means the account established and maintained by the Administrator for each Participant with respect to the Participant’s total interest in the Plan resulting from amounts transferred to this Plan from a direct plan-to-plan transfer and/or withrespect to such Participant’s interest in the Plan resulting from amounts transferred from another qualified plan or “conduit” Individual Retirement Account in accordance with Section 4.11. 

1.55 “Plan” means this instrument, including all amendments thereto. 

1.56 “Plan Year” means the Plan’s accounting year of twelve (12) months commencing on January 1 of each year and ending thefollowing December 31. 

 

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1.57 “Qualified Non-Elective Contribution” means any Employer contributions made pursuant toSection 4.1(c) and Section 4.6(b) and Section 4.8(f). Such contributions shall be considered an Elective Contribution for the purposes of the Plan and may be used to satisfy the “Actual Deferral Percentage” tests or the“Actual Contribution Percentage” tests. 

1.58 “Regulation” means the Income Tax Regulations as promulgated by theSecretary of the Treasury or a delegate of the Secretary of the Treasury, and as amended from time to time. 

1.59 “RetiredParticipant” means a person who has been a Participant, but who has become entitled to retirement benefits under the Plan. 

1.60“Retirement Date” means the date as of which a Participant retires for reasons other than Total and Permanent Disability, whether such retirement occurs on a Participant’s Normal Retirement Date or Late Retirement Date (seeSection 7.1). 

1.61 “Terminated Participant” means a person who has been a Participant, but whose employment has beenterminated other than by death, Total and Permanent Disability or retirement. 

1.62 “Top Heavy Plan” means a plan described inSection 10.2(a). 

1.63 “Top Heavy Plan Year” means a Plan Year during which the Plan is a Top Heavy Plan. 

1.64 “Top-Paid Group” means the top 20 percent of Employees who performed services for the Employer during the applicable year, rankedaccording to the amount of “415 Compensation” received from the Employer during such year. All Affiliated Employers shall be taken into account as a single employer, and Leased Employees within the meaning of Code Sections 414(n)(2) and414(o)(2) shall be considered Employees unless such Leased Employees are covered by a plan described in Code Section 414(n)(5) and are not covered in any qualified plan maintained by the Employer. Employees who are non-resident aliens and whoreceived no earned income (within the meaning of Code Section 911(d)(2)) from the Employer constituting United States source income within the meaning of Code Section 861(a)(3) shall not be treated as Employees. Furthermore, for thepurpose of determining the number of active Employees in any year, the following additional Employees shall also be excluded, however, such Employees shall still be considered for the purpose of identifying the particular Employees in the Top-PaidGroup: 

(a) Employees with less than six (6) months of service; 

(b) Employees who normally work less than 17 1/2 hours per week; 

(c) Employees who normally work less than six (6) months during a year; and 

(d) Employees who havenot yet attained age twenty-one (21). 

 

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In addition, if 90 percent or more of the Employees of the Employer are covered under agreements theSecretary of Labor finds to be collective bargaining agreements between Employee representatives and the Employer, and the Plan covers only Employees who are not covered under such agreements, then Employees covered by such agreements shall beexcluded from both the total number of active Employees as well as from the identification of particular Employees in the Top-Paid Group. 

The foregoing exclusions set forth in this Section shall be applied on a uniform and consistent basis for all purposes for which the Code Section 414(q) definition is applicable. 

1.65 “Total and Permanent Disability” means a physical or mental condition of a Participant resulting from bodily injury, disease, or mentaldisorder which renders such Participant incapable of continuing usual and customary employment with the Employer. The disability of a Participant shall be determined by a licensed physician chosen by the Administrator. The determination shall beapplied uniformly to all Participants. 

1.66 “Trustees” means the persons or entities named as trustees herein or in any separatetrust forming a part of this Plan, and any successors. From time to time Trustees shall be collectively referred to as “Trustee”. 

1.67 “Trust Fund” means the assets of the Plan and Trust as the same shall exist from time to time. 

1.68“Unallocated Company Stock Suspense Account” means an account containing Company Stock acquired with the proceeds of an Exempt Loan and which has not been released from such account and allocated to the Participants’ Company StockAccounts. 

1.69 “Valuation Date” means the Anniversary Date and may include any other date or dates deemed necessary orappropriate by the Administrator for the valuation of the Participant’s accounts during the Plan Year, which may include any day that the Trustee, any transfer agent appointed by the Trustee or the Employer or any stock exchange used by suchagent, are open for business. 

1.70 “Vested” means the no forfeitable portion of any account maintained on behalf of aParticipant. 

1.71 “Year of Service” means the computation period of twelve (12) consecutive months, herein set forth,during which an Employee has at least 1,000 Hours of Service. 

For vesting purposes, the computation periods shall be the Plan Year,including periods prior to the Effective Date of the Plan. 

The computation period shall be the Plan Year if not otherwise set forthherein. 

 

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Notwithstanding the foregoing, for any short Plan Year, the determination of whether an Employee hascompleted a Year of Service shall be made in accordance with Department of Labor regulation 2530.203-2(c). However, in determining whether an Employee has completed a Year of Service for benefit accrual purposes in the short Plan Year, the number ofthe Hours of Service required shall be proportionately reduced based on the number of full months in the short Plan Year. 

All Years ofService with any employer listed in Exhibit A shall be recognized for all purposes under the Plan. Years of Service with any Affiliated Employer shall be recognized for all purposes under the Plan. 

**ARTICLE II**

**ADMINISTRATION**

2.1 POWERS AND RESPONSIBILITIES OF THE EMPLOYER 

(a) In addition to the general powers and responsibilities otherwise provided for in this Plan, the Employer shall be empowered to appoint and remove the Trustee and the Administrator from time to time as it deemsnecessary for the proper administration of the Plan to ensure that the Plan is being operated for the exclusive benefit of the Participants and their Beneficiaries in accordance with the terms of the Plan, the Code, and the Act. The Employer mayappoint counsel, specialists, advisers, agents (including any nonfiduciary agent) and other persons as the Employer deems necessary or desirable in connection with the exercise of its fiduciary duties under this Plan. The Employer may compensatesuch agents or advisers from the assets of the Plan as fiduciary expenses (but not including any business (settlor) expenses of the Employer), to the extent not paid by the Employer. 

(b) The Employer may, by written agreement or designation, appoint at its option an Investment Manager (qualified under the Investment Company Act of1940 as amended), investment adviser, or other agent to provide direction to the Trustee with respect to any or all of the Plan assets. Such appointment shall be given by the Employer in writing in a form acceptable to the Trustee and shallspecifically identify the Plan assets with respect to which the Investment Manager or other agent shall have authority to direct the investment. 

(c) The Employer shall establish a “funding policy and method,” i.e., it shall determine whether the Plan has a short run need for liquidity (e.g., to pay benefits) or whether liquidity is a long run goal and investment growth(and stability of same) is a more current need, or shall appoint a qualified person to do so. The Employer or its delegate shall communicate such needs and goals to the Trustee, who shall coordinate such Plan needs with its investment policy. Thecommunication of such a “funding policy and method” shall not, however, constitute a directive to the Trustee as to the investment of the Trust Funds. Such “funding policy and method” shall be consistent with the objectives ofthis Plan and with the requirements of Title I of the Act. 

 

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(d) The Employer shall periodically review the performance of any Fiduciary or other person to whomduties have been delegated or allocated by it under the provisions of this Plan or pursuant to procedures established hereunder. This requirement may be satisfied by formal periodic review by the Employer or by a qualified person specificallydesignated by the Employer, through day-to-day conduct and evaluation, or through other appropriate ways. 

(e) The Employer will furnishPlan Fiduciaries and Participants with notices and information statements when voting rights must be exercised pursuant to Section 8.5. 

2.2 DESIGNATION OF ADMINISTRATIVE AUTHORITY 

The Employer shall be the Administrator. The Employer may appoint any person,including, but not limited to, the Employees of the Employer, to perform the duties of the Administrator. Upon the resignation or removal of any individual performing the duties of the Administrator, the Employer may designate a successor.

2.3 ALLOCATION AND DELEGATION OF RESPONSIBILITIES 

If more than one person is appointed as Administrator, the responsibilities of each Administrator may be specified by the Employer and accepted in writing by each Administrator. In the event that no such delegation ismade by the Employer, the Administrators may allocate the responsibilities among themselves, in which event the Administrators shall notify the Employer and the Trustee in writing of such action and specify the responsibilities of eachAdministrator. The Trustee thereafter shall accept and rely upon any documents executed by the appropriate Administrator until such time as the Employer or the Administrators file with the Trustee a written revocation of such designation.

2.4 POWERS AND DUTIES OF THE ADMINISTRATOR 

The primary responsibility of the Administrator is to administer the Plan for the exclusive benefit of the Participants and their Beneficiaries, subject to the specific terms of the Plan. The Administrator shalladminister the Plan in accordance with its terms and shall have the power and discretion to construe the terms of the Plan and to determine all questions arising in connection with the administration, interpretation, and application of the Plan. Anysuch determination by the Administrator shall be conclusive and binding upon all persons. The Administrator may establish procedures, correct any defect, supply any information, or reconcile any inconsistency in such manner and to such extent asshall be deemed necessary or advisable to carry out the purpose of the Plan; provided, however, that any procedure, discretionary act, interpretation or construction shall be done in a nondiscriminatory manner based upon uniform principlesconsistently applied and shall be consistent with the intent that the Plan shall continue to be deemed a qualified plan under the terms of Code Section 401(a), and shall comply with the terms of the Act and all regulations issued pursuantthereto. The Administrator shall have all powers necessary or appropriate to accomplish the Administrator’s duties under the Plan. 

 

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The Administrator shall be charged with the duties of the general administration of the Plan as set forthunder the terms of the Plan, including, but not limited to, the following: 

(a) the discretion to determine all questions relating to theeligibility of Employees to participate or remain a Participant hereunder and to receive benefits under the Plan; 

(b) to compute, certify,and direct the Trustee with respect to the amount and the kind of benefits to which any Participant shall be entitled hereunder; 

(c) toauthorize and direct the Trustee with respect to all nondiscretionary or otherwise directed disbursements from the Trust; 

(d) to maintainall necessary records for the administration of the Plan; 

(e) to interpret the provisions of the Plan and to make and publish such rulesfor regulation of the Plan as are consistent with the terms hereof; 

(f) to determine the size and type of any Contract to be purchasedfrom any insurer, and to designate the insurer from which such Contract shall be purchased; 

(g) to compute and certify to the Employer andto the Trustee from time to time the sums of money necessary or desirable to be contributed to the Plan; 

(h) to consult with the Employerand the Trustee regarding the short and long-term liquidity needs of the Plan in order that the Trustee can exercise any investment discretion in a manner designed to accomplish specific objectives; 

(i) to prepare and implement a procedure to notify Eligible Employees that they may elect to have a portion of their Compensation deferred or paid tothem in cash; 

(j) to establish and communicate to Participants a procedure for allowing each Participant to direct the Trustee as to thedistribution of such Participant’s Company Stock Account pursuant to Section 4.13; 

(k) to establish and communicate toParticipants a procedure and method to insure that each Participant will vote Company Stock allocated to such Participant’s Company Stock Account pursuant to Section 8.5; 

(1) to determine the validity of, and take appropriate action with respect to, any qualified domestic relations order received by it; and 

(m) to assist any Participant regarding the Participant’s rights, benefits, or elections available under the Plan. 

 

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2.5 RECORDS AND REPORTS 

The Administrator shall keep a record of all actions taken and shall keep all other books of account, records, policies, and other data that may be necessary for proper administration of the Plan and shall beresponsible for supplying all information and reports to the Internal Revenue Service, Department of Labor, Participants, Beneficiaries and others as required by law. 

2.6 APPOINTMENT OF ADVISERS 

The Administrator, or the Trustee with the consent of the Administrator, mayappoint counsel, specialists, advisers, agents (including fiduciary agents) and other persons as the Administrator or the Trustee deems necessary or desirable in connection with the administration of this Plan, including but not limited to agentsand advisers to assist with the administration and management of the Plan, and thereby to provide, among such other duties as the Administrator may appoint, assistance with maintaining Plan records and the providing of investment information to thePlan’s investment fiduciaries. 

2.7 PAYMENT OF EXPENSES 

All expenses of administration may be paid out of the Trust Fund unless paid by the Employer. Such expenses shall include any expenses incident to the functioning of the Administrator, or any person or personsretained or appointed by any Named Fiduciary incident to the exercise of their duties under the Plan, including, but not limited to, fees of accountants, counsel, Investment Managers, and other specialists and their agents, the costs of any bondsrequired pursuant to Act Section 412, and other costs of administering the Plan. Until paid, the expenses shall constitute a liability of the Trust Fund. 

The Employer may pay some Plan administration expenses with its own assets rather than using Plan assets. To the extent the Employer does not pay Plan expenses with its own assets, the Plan generally will pay theexpenses of Plan Administration and will assess the expenses paid against each Participant’s Account prorata based on the value of each Participant’s Account Balance. 

However, the Plan may assess to an individual Participant’s Account Balance certain expenses incurred by or attributable to such individualParticipant, for example, but not limited to, loan processing fees. The Employer, from time to time, may change the manner in which the Plan allocates expenses or the type of expenses the Plan will assess against an individual Participant’sAccount. 

2.8 CLAIMS PROCEDURE 

Claims for benefits under the Plan may be filed in writing with the Administrator. Written or electronic notice of the disposition of a claim shall be furnished to the claimant within 90 days (45 days if the claim involves disabilitybenefits) after the application is filed, or such period as is required by applicable law or Department of Labor regulation. In the event the claim is denied, the reasons 

 

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for the denial shall be specifically set forth in the notice in language calculated to be understood by the claimant, pertinent provisions of the Plan shallbe cited, and, where appropriate, an explanation as to how the claimant can perfect the claim will be provided. In addition, the claimant shall be furnished with an explanation of the Plan’s claims review procedure. 

2.9 CLAIMS REVIEW PROCEDURE 

Any Employee,former Employee, or Beneficiary of either, who has been denied a benefit by a decision of the Administrator pursuant to Section 2.8 shall be entitled to request the Administrator to give further consideration to a claim by filing with theAdministrator a written request for a hearing. Such request, together with a written statement of the reasons why the claimant believes the claim should be allowed, shall be filed with the Administrator no later than 60 days (180 days if the deniedbenefit involves disability benefits) after receipt of the written or electronic notification provided for in Section 2.8. The Administrator shall then conduct a hearing within the next 60 days (45 days if the claim involves disabilitybenefits), at which the claimant may be represented by an attorney or any other representative of such claimant’s choosing and expense and at which the claimant shall have an opportunity to submit written and oral evidence and arguments insupport of the claim. At the hearing the claimant or the claimant’s representative shall have an opportunity to review all documents in the possession of the Administrator which are pertinent to the claim at issue and its disallowance. Eitherthe claimant or the Administrator may cause a court reporter to attend the hearing and record the proceedings. In such event, a complete written transcript of the proceedings shall be furnished to both parties by the court reporter. The full expenseof any such court reporter and such transcripts shall be borne by the party causing the court reporter to attend the hearing. A final decision as to the allowance of the claim shall be made by the Administrator within 60 days (45 days if the claiminvolves disability benefits) of receipt of the appeal (unless there has been an extension of 60 days (45 days if the claim involves disability benefits) due to special circumstances, provided the delay and the special circumstances occasioning itare communicated to the claimant within the 60 day period (45 day period if the claim involves disability benefits). Such communication shall be written in a manner calculated to be understood by the claimant and shall include specific reasons forthe decision and specific references to the pertinent Plan provisions on which the decision is based. 

**ARTICLE III**

**ELIGIBILITY**

3.1 CONDITIONS OFELIGIBILITY 

Any Eligible Employee shall be eligible to participate hereunder on the date of such Employee’s employment with theEmployer. However, any Employee who was a Participant in the Plan prior to the effective date of this amendment and restatement shall continue to participate in the Plan. 

 

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3.2 EFFECTIVE DATE OF PARTICIPATION 

An Eligible Employee shall become a Participant effective as of the date on which he satisfies the eligibility requirements of Section 3.1.

If an Employee, who has satisfied the Plan’s eligibility requirements and would otherwise have become a Participant, shall go from aclassification of a noneligible Employee to an Eligible Employee, such Employee shall become a Participant on the date such Employee becomes an Eligible Employee or, if later, the date that the Employee would have otherwise entered the Plan had theEmployee always been an Eligible Employee. 

If an Employee, who has satisfied the Plan’s eligibility requirements and would otherwisebecome a Participant, shall go from a classification of an Eligible Employee to a noneligible class of Employees, such Employee shall become a Participant in the Plan on the date such Employee again becomes an Eligible Employee, or, if later, thedate that the Employee would have otherwise entered the Plan had the Employee always been an Eligible Employee. However, if such Employee incurs a 1-Year Break in Service, eligibility will be determined under the Break in Service rules set forth inSection 3.7. 

3.3 DETERMINATION OF ELIGIBILITY 

The Administrator shall determine the eligibility of each Employee for participation in the Plan based upon information furnished by the Employer. Such determination shall be conclusive and binding upon all persons,as long as the same is made pursuant to the Plan and the Act. Such determination shall be subject to review pursuant to Section 2.9. 

3.4 TERMINATION OF ELIGIBILITY 

In the event a Participant shall go from a classification of an Eligible Employee to an ineligibleEmployee, such Former Participant shall continue to vest in the Plan for each Year of Service completed while a noneligible Employee, until such time as the Participant’s Account shall be forfeited or distributed pursuant to the terms of thePlan. Additionally, the Former Participant’s interest in the Plan shall continue to share in the earnings of the Trust Fund. 

3.5OMISSION OF ELIGIBLE EMPLOYEE 

If, in any Plan Year, any Employee who should be included as a Participant in the Plan is erroneously omittedand discovery of such omission is not made until after a contribution by the Employer for the year has been made and allocated, then the Employer shall make a subsequent contribution, if necessary after the application of Section 4.4(f), sothat the omitted Employee receives a total amount which the Employee would have received (including both Employer contributions and earnings thereon) had the Employee not been omitted. Such contribution shall be made regardless of whether it isdeductible in whole or in part in any taxable year under applicable provisions of the Code. 

 

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3.6 INCLUSION OF INELIGIBLE EMPLOYEE 

If, in any Plan Year, any person who should not have been included as a Participant in the Plan is erroneously included and discovery of such inclusion isnot made until after a contribution for the year has been made and allocated, the Employer shall be entitled to recover the contribution made with respect to the ineligible person provided the error is discovered within twelve (12) months ofthe date on which it was made. Otherwise, the amount contributed with respect to the ineligible person shall constitute a Forfeiture for the Plan Year in which the discovery is made. Notwithstanding the forgoing, any Deferred Compensation made by anineligible person shall be distributed to the person (along with any earnings attributable to such Deferred Compensation). 

3.7 REHIREDEMPLOYEES AND BREAKS IN SERVICE 

(a) If any Participant becomes a Former Participant due to severance from employment with the Employer andis reemployed by the Employer before a 1-Year Break in Service occurs, the Former Participant shall become a Participant as of the reemployment date. 

(b) After a Former Participant who has severed employment with the Employer incurs five (5) consecutive 1-Year Breaks in Service, the Vested portion of said Former Participant’s Account attributable topre-break service shall not be increased as a result of post-break service. In such case, separate accounts will be maintained as follows: 

(1) one account for nonforfeitable benefits attributable to pre-break service; and 

(2) one account representing theParticipant’s Employer derived account balance in the Plan attributable to post-break service. 

(c) If any Participant becomes aFormer Participant due to severance of employment with the Employer and is reemployed by the Employer before five (5) consecutive 1-Year Breaks in Service, and such Former Participant had received a distribution of the entire Vested interestprior to reemployment, then the forfeited account shall be reinstated only if the Former Participant repays the full amount which had been distributed. Such repayment must be made before the earlier of five (5) years after the first date onwhich the Participant is subsequently reemployed by the Employer or the close of the first period of five (5) consecutive 1-Year Breaks in Service commencing after the distribution. If a distribution occurs for any reason other than a severanceof employment, the time for repayment may not end earlier than five (5) years after the date of distribution. In the event the Former Participant does repay the full amount distributed, the undistributed forfeited portion of theParticipant’s Account must be restored in full, unadjusted by any gains or losses occurring subsequent to the Valuation Date preceding the distribution. The source for such reinstatement may be Forfeitures occurring during the Plan Year. Ifsuch source is insufficient, then the Employer will contribute an amount which is sufficient to 

 

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restore any such forfeited Accounts provided, however, that if a discretionary contribution is made for such year pursuant to Section 4.1(d), suchcontribution shall first be applied to restore any such Accounts and the remainder shall be allocated in accordance with Section 4.4. 

3.8 ELECTION NOT TO PARTICIPATE 

An Employee may, subject to the approval of the Employer, elect voluntarily not to participate inthe Plan. The election not to participate must be communicated to the Employer, in writing, within a reasonable period of time before the beginning of a Plan Year. 

**ARTICLE IV**

**CONTRIBUTION AND ALLOCATION**

4.1 FORMULA FOR DETERMINING EMPLOYER CONTRIBUTION. For each Plan Year, the Employer shall contribute to the Plan: 

(a) The amount of the total salary reduction elections of all Participants made pursuant to Section 4.2, which amount shall be deemed an EmployerElective Contribution. 

(b) On behalf of each Participant who is eligible to share in matching contributions for the Plan Year, adiscretionary matching contribution equal to a uniform percentage of each such Participant’s Deferred Compensation (less Catch-Up Contributions made pursuant to Section 4.2(a)), the exact percentage, if any, to be determined each year bythe Employer, which amount, if any, shall be deemed an Employer Non-Elective Contribution plus any uniform discretionary percentage of each such Participant’s Deferred Compensation, the exact percentage, if any, to be determined each year bythe Employer, which amount, shall be deemed an Employer Non-Elective Contribution. 

(c) On behalf of each Non-Highly CompensatedParticipant who is eligible to share in the Qualified Non-Elective Contribution for the Plan Year, a discretionary Qualified Non-Elective Contribution equal to a uniform percentage of each eligible individual’s Compensation, the exactpercentage, if any, to be determined each year by the Employer. Any Employer Qualified Non-Elective Contribution shall be deemed an Employer Elective Contribution. 

(d) A discretionary amount, which amount, if any, shall be deemed an Employer Non-Elective Contribution. 

(e) Additionally, to the extent necessary, the Employer shall contribute to the Plan the amount necessary to provide the top heavy minimum contribution. All contributions by the Employer shall be made in cash or in such property as isacceptable to the Trustee. 

 

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4.2 PARTICIPANT’S SALARY REDUCTION ELECTION 

(a) Each Participant may elect to defer the amount no less than 2% of the Compensation, which would have been received in the Plan Year, but for thedeferral election, but no greater than the maximum amount allowed under Code Section 402(g). A deferral election (or modification of an earlier election) may not be made with respect to Compensation which is currently available on or before thedate the Participant executed such election. In addition, except for occasional, bona fide administrative considerations, contributions made pursuant to such an election cannot precede the earlier of (1) the performance of services relating tothe contribution and (2) when the Compensation that is subject to the election would be currently available to the Employee in the absence of an election to defer. For purposes of this Section, Compensation shall be determined on an annualbasis prior to any reductions made pursuant to Code Sections 125, 132(f)(4), 402(e)(3), 402(h)(1)(B), 403(b), 414(v) or 457(b), and Employee contributions described in Code Section 414(h)(2) that are treated as Employer contributions.

Notwithstanding the above, with respect to an Eligible Employee who becomes a Participant on or after January 1, 2007; suchindividual may elect a salary deferral (either pre-tax or Roth) amount or zero upon such date. Failure to make any affirmative election within thirty (30) days from the date of hire will result in auto enrollment for such Eligible Employee assoon as administratively feasible; such a Participant’s Compensation shall automatically be reduced by 2%, which amount shall be deemed to be the Participant’s salary reduction election, unless the Participant makes a contrary election todefer a portion of Compensation greater then % or elects to receive cash in lieu of making salary deferral contributions. An Eligible Employee has an effective opportunity to elect to receive an amount in cash if the Eligible Employee receivesnotice of the availability of the election and the Eligible Employee has a reasonable period to make the election before the date on which the cash is currently available. The deemed salary reduction election described in this paragraph shall beconsidered a pre-tax elective contribution and not Roth Elective Deferral. 

Notwithstanding the above, each Catch-Up Eligible Participantshall be eligible to make Catch-Up Contributions during the Plan Year in accordance with, and subject to the limitations of, Code Section 414(v). Such Catch-Up Contributions shall not be taken into account for purposes of Code Sections 402(g)and 415(c). The Plan shall not be treated as failing to satisfy the provisions of the Plan implementing the requirements of Code Section 401(k)(3), 416 or 410(b), as applicable, by reason of the making of such Catch-Up Contributions.

Notwithstanding the above, for Plan Years beginning on or after January 1, 2007, the Plan will accept Roth Elective Deferrals made onbehalf of a Participant. A Participant’s Roth Elective Deferral will be allocated to the Participant’s Elective Account as a Roth Elective Deferral Account. Unless specifically stated otherwise, Roth Elective Deferrals will be treated assalary reduction elections for all purposes under the Plan and will be separately accounted for in the Participant’s Elective Account attributable to such Roth Elective Deferrals. 

 

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The amount by which Compensation is reduced shall be that Participant’s Deferred Compensation and betreated as an Employer Elective Contribution and allocated to that Participant’s Elective Account. 

(b) The balance in eachParticipant’s Elective Account shall be fully Vested at all times and, except as otherwise provided herein, shall not be subject to Forfeiture for any reason. The Plan shall disregard Elective Contributions in applying the vesting provisions ofthe Plan to other contributions or benefits under Code Section 411(a)(2). However, the Plan shall otherwise take Elective Contributions into account in determining the Participant’s Vested benefits under the Plan. Thus, for example, thePlan shall take Elective Contributions into account in determining whether a Participant has a nonforfeitable right to contributions under the Plan for purposes of forfeitures, and for applying provisions permitting the repayment of distributions tohave forfeited amounts restored, and the provisions of Code Sections 410(a)(5)(D)(iii) and 411(a)(6)(D)(iii) permitting a plan to disregard certain service completed prior to breaks-in-service (sometimes referred to as “the rule ofparity”). 

(c) Notwithstanding anything in the Plan to the contrary, amounts held in the Participant’s Elective Account may notbe distributable (including any offset of loans) earlier than: 

(1) a Participant’s severance from employment; 

(2) a Participant’s Total and Permanent Disability; 

(3) death; 

(4) a Participant’s attainment of age 59 1/2; 

(5) the termination of the Plan without the existence at the time of Plan termination of another defined contribution plan or the establishment of asuccessor defined contribution plan by the Employer or an Affiliated Employer within the period ending twelve months after distribution of all assets from the Plan maintained by the Employer. For this purpose, a defined contribution plan does notinclude an employee stock ownership plan (as defined in Code Section 4975(e)(7) or 409), a simplified employee pension plan (as defined in Code Section 408(k)), or a simple individual retirement account plan (as defined in CodeSection 408(p)); 

(6) the date of disposition by the Employer to an entity that is not an Affiliated Employer of substantially all ofthe assets (within the meaning of Code Section 409(d)(2)) used in a trade or business of such corporation if such corporation continues to maintain this Plan after the disposition with respect to a Participant who continues employment with thecorporation acquiring such assets; or 

(7) the date of disposition by the Employer or an Affiliated Employer who maintains the Plan of itsinterest in a subsidiary (within the meaning of Code Section 409(d)(3)) to an entity which is not an Affiliated Employer but only with respect to a Participant who continues employment with such subsidiary. 

 

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(d) For each Plan Year, a Participant’s Deferred Compensation made under this Plan and all otherplans, contracts or arrangements of the Employer maintaining this Plan shall not exceed, during any taxable year of the Participant, the limitation imposed by Code Section 402(g), as in effect at the beginning of such taxable year. If suchdollar limitation is exceeded, a Participant will be deemed to have notified the Administrator of such excess amount which shall be distributed in a manner consistent with Section 4.2(e). The dollar limitation shall be adjusted annuallypursuant to the method provided in Code Section 415(d) in accordance with Regulations. 

(e) If a Participant’s DeferredCompensation under this Plan together with any elective deferrals (as defined in Regulations 1.402(g)-1(b) and 1.414(v)-1(g)(2)) under another qualified cash or deferred arrangement (as described in Code Section 401(k)), a simplified employeepension (as described in Code Section 408(k)(6)), a simple individual retirement account plan (as described in Code Section 408(p)), a salary reduction arrangement (within the meaning of Code Section 3121(a)(5)(D)), a deferredcompensation plan under Code Section 457(b), or a trust described in Code Section 501(e)(18) cumulatively exceed the limitation imposed by Code Section 402(g) (as adjusted annually in accordance with the method provided in CodeSection 415(d) pursuant to Regulations) for such Participant’s taxable year, the Participant may, not later than March 1st following the close of the Participant’s taxable year, notify the Administrator in writing of such excessand request that the Participant’s Deferred Compensation under this Plan be reduced by an amount specified by the Participant. In such event, the Administrator may direct the Trustee to distribute such excess amount (and any Income allocable tosuch excess amount) to the Participant not later than the first April 15th following the close of the Participant’s taxable year. Any distribution of less than the entire amount of Excess Deferred Compensation and Income shall be treatedas a pro rata distribution of Excess Deferred Compensation and Income. The amount distributed shall not exceed the Participant’s Deferred Compensation under the Plan for the taxable year (and any Income allocable to such excess amount). Anydistribution on or before the last day of the Participant’s taxable year must satisfy each of the following conditions: 

(1) thedistribution must be made after the date on which the Plan received the Excess Deferred Compensation; 

(2) the Participant shall designatethe distribution as Excess Deferred Compensation; and 

(3) the Plan must designate the distribution as a distribution of Excess DeferredCompensation. 

Notwithstanding the above, for Plan Years beginning on or after January 1, 2007, For any Plan Year in which aParticipant may make and does elect to make both Roth Elective Deferrals and Pre-Tax Elective Deferrals, the Administrator operationally may implement an ordering rule procedure for the distribution of Excess Deferrals (Code Section 402(g)).The Plan has designated that Roth Elective Deferrals are distributed first, to the extent such type of Elective Deferrals was made for the year. 

 

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Matching contributions which relate to Excess Deferred Compensation which is distributed pursuant to thisSection 4.2(e) shall be treated as a Forfeiture. 

(f) Notwithstanding Section 4.2(e) above, a Participant’s Excess DeferredCompensation shall be reduced, but not below zero, by any distribution of Excess Contributions pursuant to Section 4.6(a) for the Plan Year beginning with or within the taxable year of the Participant. 

(g) At Normal Retirement Date, or such other date when the Participant shall be entitled to receive benefits, the fair market value of theParticipant’s Elective Account shall be used to provide additional benefits to the Participant or the Participant’s Beneficiary. 

(h) Employer Elective Contributions made pursuant to this Section may be segregated into a separate account for each Participant in a federally insured savings account, certificate of deposit in a bank or savings and loan association, moneymarket certificate, or other short-term debt security acceptable to the Trustee until such time as the allocations pursuant to Section 4.4 have been made. 

(i) The Employer and the Administrator shall implement the salary reduction elections provided for herein in accordance with the following: 

(1) A Participant must make an initial salary deferral election within a reasonable time, not to exceed thirty (30) days, after entering the Plan pursuant to Section 3.2. If the Participant fails to make aninitial salary deferral election within such time, then such Participant may thereafter make an election in accordance with the rules governing modifications. The Participant shall make such an election by entering into a written salary reductionagreement with the Employer and filing such agreement with the Administrator. Such election shall initially be effective beginning with the pay period following the acceptance of the salary reduction agreement by the Administrator, shall not haveretroactive effect and shall remain in force until revoked. 

(2) A Participant may modify a prior election at any time during the Plan Yearand concurrently make a new election by filing a written notice with the Administrator within a reasonable time before the pay period for which such modification is to be effective. Any modification shall not have retroactive effect and shall remainin force until revoked. 

(3) A Participant may elect to prospectively revoke the Participant’s salary reduction agreement in itsentirety at any time during the Plan Year by providing the Administrator with thirty (30) days written notice of such revocation (or upon such shorter notice period as may be acceptable to the Administrator). Such revocation shall becomeeffective as of the beginning of the first pay period coincident with or next following the expiration of the notice period. Furthermore, the termination of the Participant’s employment, or the cessation of participation for any reason, shallbe deemed to revoke any salary reduction agreement then in effect, effective immediately following the close of the pay period within which such termination or cessation occurs. 

 

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(j) This Section 4.2(j) will apply to contributions occurring on or after January 1, 2007.

(1) As of January 1, 2007, the Plan will accept Roth Elective Deferrals made on behalf of Participants. A Participant’s RothElective Deferrals will be allocated to a Roth Elective Deferral Account. 

(2) Unless specifically stated otherwise, Roth ElectiveDeferrals will be treated as salary reduction elections for all purposes under the Plan. 

(3) Contributions and withdrawals of RothElective Deferrals will be credited and debited to the Roth Elective Deferral Account maintained for each Participant. 

(4) The Plan willmaintain a record of the amount of Roth Elective Deferrals in each Participant’s Roth Elective Deferral Account. 

(5) Gains, losses,and other credits or charges must be separately allocated on a reasonable and consistent basis to each Participant’s Roth Elective Deferral Account and the Participant’s other accounts under the Plan. 

(6) No contributions other than Roth Elective Deferrals and properly attributable earnings will be credited to each Participant’s Roth ElectiveDeferral Account. 

4.3 TIME OF PAYMENT OF EMPLOYER CONTRIBUTION 

The Employer may make its contribution to the Plan for a particular Plan Year at such time as the Employer, in its sole discretion, determines. If theEmployer makes a contribution for a particular Plan Year after the close of that Plan Year, the Employer will designate to the Trustee the Plan Year for which the Employer is making its contribution. 

4.4 ALLOCATION OF CONTRIBUTION, FORFEITURES AND EARNINGS 

(a) The Administrator shall establish and maintain an account in the name of each Participant to which the Administrator shall credit as of each Anniversary Date, or other Valuation Date, all amounts allocated to eachsuch Participant as set forth herein. 

(b) The Employer shall provide the Administrator with all information required by the Administratorto make a proper allocation of the Employer contributions for each Plan Year. Within a reasonable period of time after the date of receipt by the Administrator of such information, the Administrator shall allocate such contribution as follows:

(1) With respect to the Employer Elective Contribution made pursuant to Section 4.1(a), to each Participant’s Elective Account inan amount equal to each such Participant’s Deferred Compensation for the year. 

 

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(2) With respect to the Employer Non-Elective Contribution made pursuant to Section 4.1(b), to eachParticipant’s Account in accordance with Section 4.1(b). 

Only Participants who are actively employed on the last day of the PlanYear shall be eligible to share in the matching contribution for the year. 

(3) With respect to the Employer Qualified Non-ElectiveContribution made pursuant to Section 4.1(c), to each Participant’s Elective Account when used to satisfy the “Actual Deferral Percentage” tests or Participant’s Account in accordance with Section 4.1(c). 

Only Non-Highly Compensated Participants who have completed a Year of Service during the Plan Year and are actively employed on the last day of the PlanYear shall be eligible to share in the Qualified Non-Elective Contribution for the year. 

(4) With respect to the Employer Non-ElectiveContribution made pursuant to Section 4.1(d), to each Participant’s Account in the same proportion that each such Participant’s Compensation for the year bears to the total Compensation of all Participants for such year. 

Only Participants who have completed a Year of Service during the Plan Year and are actively employed on the last day of the Plan Year shall beeligible to share in the discretionary contribution for the year. 

(c) The Company Stock Account of each Participant shall be credited asof each Anniversary Date with Forfeitures of Company Stock and the Participant’s allocable share of Company Stock (including fractional shares) purchased and paid for by the Plan or contributed in kind by the Employer. Stock dividends onCompany Stock held in the Participant’s Company Stock Account shall be credited to the Participant’s Company Stock Account when paid to the Plan. Cash dividends on Company Stock held in the Participant’s Company Stock Account shall,in the sole discretion of the Administrator, either be credited to the Participant’s Other Investments Account when paid to the Plan or be used to repay an Exempt Loan; provided, however, that when cash dividends are used to repay an ExemptLoan, Company Stock shall be released from the Unallocated Company Stock Suspense Account and allocated to the Participant’s Company Stock Account pursuant to Section 4.4(e) and, provided further, that Company Stock allocated to theParticipant’s Company Stock Account shall have a fair market value not less than the amount of cash dividends which would have been allocated to such Participant’s Other Investments Account for the year. 

Notwithstanding the above, if the Employer elected to be an S corporation under Code Section 1362(a) and a distribution under CodeSection 1368(a) is made, then the Administrator shall direct that such distribution on S corporation Company Stock held in the Participant’s Company Stock Account shall, in the sole discretion of the Administrator, either be credited tothe Participant’s Other Investment Account when paid to the Plan or be used to repay an Exempt Loan; provided, however, that when such distribution is used to repay an Exempt Loan, Company Stock shall be released from the Unallocated CompanyStock Suspense Account and 

 

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allocated to the Participant’s Company Stock Account pursuant to Section 4.4(e) and, provided further, that Company Stock allocated to theParticipant’s Company Stock Account shall have a fair market value not less than the amount of the distribution that would have been allocated to such Participant’s Other Investment Account for the year. 

Company Stock acquired by the Plan with the proceeds of an Exempt Loan shall only be allocated to each Participant’s Company Stock Account uponrelease from the Unallocated Company Stock Suspense Account as provided in Section 4.4(e) herein. Company Stock acquired with the proceeds of an Exempt Loan shall be an asset of the Trust Fund and maintained in the Unallocated Company StockSuspense Account. 

(d) As of each Valuation Date, before the current valuation period allocation of Employer contributions and Forfeitures,any earnings or losses (net appreciation or net depreciation) of the Trust Fund shall be allocated in the same proportion that each Participant’s and Former Participant’s nonsegregated accounts (other than each Participant’s CompanyStock Account) bear to the total of all Participants’ and Former Participants’ nonsegregated accounts (other than each Participant’s Company Stock Account) as of such date. 

Earnings or losses do not include the interest paid under any installment contract for the purchase of Company Stock by the Trust Fund or on any loanused by the Trust Fund to purchase Company Stock, nor does it include income received by the Trust Fund with respect to Company Stock acquired with the proceeds of an Exempt Loan; all income received by the Trust Fund from Company Stock acquiredwith the proceeds of an Exempt Loan may, at the discretion of the Administrator, be used to repay such loan. 

Participants’ transfersfrom other qualified plans deposited in the general Trust Fund shall share in any earnings and losses (net appreciation or net depreciation) of the Trust Fund in the same manner provided above. Each segregated account maintained on behalf of aParticipant shall be credited or charged with its separate earnings and losses. 

(e) All Company Stock acquired by the Plan with theproceeds of an Exempt Loan must be added to and maintained in the Unallocated Company Stock Suspense Account. Such Company Stock shall be released and withdrawn from that account as if all Company Stock in that account were encumbered. For each PlanYear during the duration of the loan, the number of shares of Company Stock released shall equal the number of encumbered shares held immediately before release for the current Plan Year multiplied by a fraction, the numerator of which is the amountof principal and interest paid for the Plan Year and the denominator of which is the sum of the numerator plus the principal and interest to be paid for all future Plan Years. As of each Anniversary Date, the Plan must consistently allocate to eachParticipant’s Account, in the same manner as Employer discretionary contributions pursuant to Section 4.1(d) are allocated, non-monetary units (shares and fractional shares of Company Stock) representing each Participant’s interest inCompany Stock withdrawn from the Unallocated Company Stock Suspense Account. However, Company Stock released from the Unallocated Company Stock Suspense Account with cash dividends pursuant to Section 4.4(c) shall be allocated to each 

 

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Participant’s Company Stock Account in the same proportion that each such Participant’s number of shares of Company Stock sharing in such cashdividends bears to the total number of shares of all Participant’s Company Stock sharing in such cash dividends. Income earned with respect to Company Stock in the Unallocated Company Stock Suspense Account shall be used, at the discretion ofthe Administrator, to repay the Exempt Loan used to purchase such Company Stock. Company Stock released from the Unallocated Company Stock Suspense Account with such income, and any income which is not so used, shall be allocated as of eachAnniversary Date in the same proportion that each Participant’s and Former Participant’s nonsegregated accounts after the allocation of any earnings or losses pursuant to Section 4.4(d) bear to the total of all Participants’ andFormer Participants’ nonsegregated accounts after the allocation of any earnings or losses pursuant to Section 4.4(d). 

Notwithstanding the above, if the Employer elected to be an S corporation under Code Section 1362(a), Company Stock released from the Unallocated Company Stock Suspense Account with a distribution under Code Section 1368(a) on Scorporation Company Stock pursuant to Section 4.4(c) shall be allocated to each Participant’s Company Stock Account in the same proportion that each Participant’s number of shares of Company Stock sharing in such distribution bears tothe total number of shares of all Participant’s Company Stock sharing in such distribution. 

(f) On or before each Anniversary Dateany amounts which became Forfeitures since the last Anniversary Date may be made available to reinstate previously forfeited account balances of Former Participants, if any, in accordance with Section 3.7(d), be used to satisfy any contributionthat may be required pursuant to Section 3.5 and/or 7.8, or used to pay any administrative expenses of the Plan. The remaining Forfeitures, if any, shall be allocated to Participants’ Accounts in the following manner: 

(1) Forfeitures attributable to Employer matching contributions made pursuant to Section 4.1(b) shall be allocated among the Participants’Accounts in the same proportion that each such Participant’s Compensation for the year bears to the total Compensation of all Participants for the year. 

Except, however, Participants who are not eligible to share in matching contributions (whether or not a deferral election was made or suspended pursuant to Section 4.2) for a Plan Year shall not share in PlanForfeitures attributable to Employer matching contributions for that year. 

(2) Forfeitures attributable to Employer discretionarycontributions made pursuant to Section 4.1(d) shall be added to any Employer discretionary contribution for the Plan Year in which such Forfeitures occur and allocated among the Participants’ Accounts in the same manner as any Employerdiscretionary contribution. 

Provided, however, that in the event the allocation of Forfeitures provided herein shall cause the“annual addition” (as defined in Section 4.9) to any Participant’s Account to exceed the amount allowable by the Code, the excess shall be reallocated in accordance with Section 4.10. 

 

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(g) For any Top Heavy Plan Year, Non-Key Employees not otherwise eligible to share in the allocation ofcontributions and Forfeitures as provided above, shall receive the minimum allocation provided for in Section 4.4(i) if eligible pursuant to the provisions of Section 4.4(k). 

(h) Notwithstanding the foregoing, Participants who are not actively employed on the last day of the Plan Year due to Retirement (Normal or Late), Totaland Permanent Disability or death shall share in the allocation of contributions and Forfeitures for that Plan Year. 

(i) MinimumAllocations Required for Top Heavy Plan Years: Notwithstanding the foregoing, for any Top Heavy Plan Year, the sum of the Employer contributions and Forfeitures allocated to the Participant’s Combined Account of each Non-Key Employee shall beequal to at least three percent (3%) of such Non-Key Employee’s “415 Compensation” (reduced by contributions and forfeitures, if any, allocated to each Non-Key Employee in any defined contribution plan included with this Plan ina Required Aggregation Group). However, if (1) the sum of the Employer contributions and Forfeitures allocated to the Participant’s Combined Account of each Key Employee for such Top Heavy Plan Year is less than three percent (3%) ofeach Key Employee’s “415 Compensation” and (2) this Plan is not required to be included in an Aggregation Group to enable a defined benefit plan to meet the requirements of Code Section 401(a)(4) or 410, then the sum of theEmployer contributions and Forfeitures allocated to the Participant’s Combined Account of each Non-Key Employee shall be equal to the largest percentage allocated to the Participant’s Combined Account of any Key Employee. However, indetermining whether a Non-Key Employee has received the required minimum allocation, such Non-Key Employee’s Deferred Compensation and matching contributions needed to satisfy the “Actual Contribution Percentage” tests pursuant toSection 4.5 or the “Actual Contribution Percentage” test pursuant to Section 4.7 shall not be taken into account. 

However, no such minimum allocation shall be required in this Plan for any Non-Key Employee who participates in another defined contribution plan subject to Code Section 412 included with this Plan in a Required Aggregation Group.

(j) For purposes of the minimum allocations set forth above, the percentage allocated to the Participant’s Combined Account of anyKey Employee shall be equal to the ratio of the sum of the Employer contributions (excluding any Catch-Up Contributions) and Forfeitures allocated on behalf of such Key Employee divided by the “415 Compensation” for such Key Employee.

(k) For any Top Heavy Plan Year, the minimum allocations set forth above shall be allocated to the Participant’s Combined Account ofall Non-Key Employees who are Participants and who are employed by the Employer on the last day of the Plan Year, including Non-Key Employees who have (1) failed to complete a Year of Service; and (2) declined to make mandatorycontributions (if required) or, in the case of a cash or deferred arrangement, elective contributions to the Plan. 

 

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(l) For the purposes of this Section, “415 Compensation” in excess of $150,000 (or such otheramount provided in the Code) shall be disregarded. Such amount shall be adjusted for increases in the cost of living in accordance with Code Section 401(a)(17)(B), except that the dollar increase in effect on January 1 of any calendar yearshall be effective for the Plan Year beginning with or within such calendar year. If “415 Compensation” for any prior determination period is taken into account in determining a Participant’s minimum benefit for the current Plan Year,the “415 Compensation” for such determination period is subject to the applicable annual “415 Compensation” limit in effect for that prior period. For this purpose, in determining the minimum benefit in Plan Years beginning on orafter January 1, 1989, the annual “415 Compensation” limit in effect for determination periods beginning before that date is $200,000 (or such other amount as adjusted for increases in the cost of living in accordance with CodeSection 415(d) for determination periods beginning on or after January 1, 1989, and in accordance with Code Section 401(a)(17)(B) for determination periods beginning on or after January 1, 1994). For determination periodsbeginning prior to January 1, 1989, the $200,000 limit shall apply only for Top Heavy Plan Years and shall not be adjusted. For any short Plan Year the “415 Compensation” limit shall be an amount equal to the “415Compensation” limit for the calendar year in which the Plan Year begins multiplied by the ratio obtained by dividing the number of full months in the short Plan Year by twelve (12). 

(m) Notwithstanding anything herein to the contrary, Participants who terminated employment for any reason during the Plan Year shall share in the salaryreduction contributions made by the Employer for the year of termination without regard to the Hours of Service credited. 

(n)Notwithstanding anything in this Section to the contrary, all information necessary to properly reflect a given transaction may not be available until after the date specified herein for processing such transaction, in which case the transactionwill be reflected when such information is received and processed. Subject to express limits that may be imposed under the Code, the processing of any contribution, distribution or other transaction may be delayed for any legitimate business reason(including, but not limited to, failure of systems or computer programs, failure of the means of the transmission of data, force majeure, the failure of a service provider to timely receive values or prices, and the correction for errors oromissions or the errors or omissions of any service provider). The processing date of a transaction will be binding for all purposes of the Plan. 

(o) Notwithstanding anything to the contrary, if this is a Plan that would otherwise fail to meet the requirements of Code Section 410(b)(1)(B) and the Regulations thereunder because Employer contributions would not be allocated to asufficient number or percentage of Participants for a Plan Year, then the following rules shall apply: 

(1) The group of Participantseligible to share in the Employer’s contribution and Forfeitures for the Plan Year shall be expanded to include the minimum number of Participants who would not otherwise be eligible as are necessary to satisfy the applicable test specifiedabove. The specific Participants who shall become eligible under the terms of this paragraph shall be those who have not separated from service prior to the last day of the Plan Year and have completed the greatest number of Hours of Service in thePlan Year. 

 

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(2) If after application of paragraph (1) above, the applicable test is still not satisfied, thenthe group of Participants eligible to share in the Employer’s contribution and Forfeitures for the Plan Year shall be further expanded to include the minimum number of Participants who have separated from service prior to the last day of thePlan Year as are necessary to satisfy the applicable test. The specific Participants who shall become eligible to share shall be those Participants who have completed the greatest number of Hours of Service in the Plan Year before terminatingemployment. 

(3) Nothing in this Section shall permit the reduction of a Participant’s accrued benefit. Therefore any amounts thathave previously been allocated to Participants may not be reallocated to satisfy these requirements. In such event, the Employer shall make an additional contribution equal to the amount such affected Participants would have received had they beenincluded in the allocations, even if it exceeds the amount which would be deductible under Code Section 404. Any adjustment to the allocations pursuant to this paragraph shall be considered a retroactive amendment adopted by the last day of thePlan Year. 

(4) Notwithstanding the foregoing, if the portion of the Plan which is not a Code Section 401(k) or 401(m) plan would failto satisfy Code Section 410(b) if the coverage tests were applied by treating those Participants whose only allocation would otherwise be provided under the top heavy formula as if they were not currently benefiting under the Plan, then, forpurposes of this Section 4.4(o), such Participants shall be treated as not benefiting and shall therefore be eligible to be included in the expanded class of Participants who will share in the allocation provided under the Plan’s non topheavy formula. 

4.5 ACTUAL DEFERRAL PERCENTAGE TESTS 

(a) Maximum Annual Allocation: For each Plan Year, the annual allocation derived from Employer Elective Contributions to a Highly Compensated Participant’s Elective Account shall satisfy one of the followingtests: 

(1) The “Actual Deferral Percentage” for the Highly Compensated Participant group shall not be more than the “ActualDeferral Percentage” of the Non-Highly Compensated Participant group (for the preceding Plan Year if the prior year testing method is used to calculate the “Actual Deferral Percentage” for the Non-Highly Compensated Participant group)multiplied by 1.25, or 

(2) The excess of the “Actual Deferral Percentage” for the Highly Compensated Participant group over the“Actual Deferral Percentage” for the Non-Highly Compensated Participant group (for the preceding Plan Year if the prior year testing method is used to calculate the “Actual Deferral Percentage” for the Non-Highly CompensatedParticipant group) shall not be more than two percentage points. Additionally, the “Actual Deferral Percentage” for the Highly Compensated Participant group shall not exceed the 

 

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“Actual Deferral Percentage” for the Non-Highly Compensated Participant group (for the preceding Plan Year if the prior year testing method is usedto calculate the “Actual Deferral Percentage” for the Non-Highly Compensated Participant group) multiplied by 2. The provisions of Code Section 401(k)(3) and Regulation 1.401(k)-1(b) are incorporated herein by reference. 

(b) For the purposes of this Section “Actual Deferral Percentage” means, with respect to the Highly Compensated Participant group andNon-Highly Compensated Participant group for a Plan Year, the average of the ratios, calculated separately for each Participant in such group, of the amount of Employer Elective Contributions (less Catch-Up Contributions) allocated to eachParticipant’s Elective Account for such Plan Year, to such Participant’s “414(s) Compensation” for such Plan Year. The Actual Deferral Ratio (“ADR”) for each Participant and the “Actual Deferral Percentage”for each group shall be calculated to the nearest one-hundredth of one percent. Employer Elective Contributions (less Catch-Up Contributions) allocated to each Non-Highly Compensated Participant’s Elective Account shall be reduced by ExcessDeferred Compensation to the extent such excess amounts are made under this Plan or any other plan maintained by the Employer and any matching contributions which relate to such Excess Deferred Compensation. 

Notwithstanding the above, if the prior year testing method is used to calculate the “Actual Deferral Percentage” for the Non-HighlyCompensated Participant group for the first Plan Year of this amendment and restatement, the “Actual Deferral Percentage” for the Non-Highly Compensated Participant group for the preceding Plan Year shall be calculated pursuant to theprovisions of the Plan then in effect. 

(c) For the purposes of Sections 4.5(a) and 4.6, a Highly Compensated Participant and a Non-HighlyCompensated Participant shall include any Employee eligible to make a deferral election pursuant to Section 4.2, whether or not such deferral election was made or suspended pursuant to Section 4.2. 

Notwithstanding the above, if the prior year testing method is used to calculate the “Actual Deferral Percentage” for the Non-HighlyCompensated Participant group for the first Plan Year of this amendment and restatement, for purposes of Section 4.5(a) and 4.6, a Non-Highly Compensated Participant shall include any such Employee eligible to make a deferral election, whetheror not such deferral election was made or suspended, pursuant to the provisions of the Plan in effect for the preceding Plan Year. 

(d) Forpurposes of this Section and Code Sections 401(a)(4), 410(b) and 401(k), this Plan may not be combined with any other plan. 

(e) For thepurpose of this Section, when calculating the “Actual Deferral Percentage” for the Non-Highly Compensated Participant group, the current year testing method shall be used. Any change from the current year testing method to the prior yeartesting method shall be made pursuant to Internal Revenue Service Notice 98-1, Section VII (or superseding guidance), the provisions of which are incorporated herein by reference. 

 

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(f) Notwithstanding anything in this Section to the contrary, the provisions of this Section andSection 4.6 may be applied separately (or will be applied separately to the extent required by Regulations) to each plan within the meaning of Regulation 1.401(k)-1(g)(11). Furthermore, the provisions of Code Section 401(k)(3)(F) may beused to exclude from consideration all Non-Highly Compensated Employees who have not satisfied the minimum age and service requirements of Code Section 10(a)(1)(A). 

(g) For Plan Years beginning after December 31, 2005, the Plan adopts good faith compliance with the final 401(k) and 401(m) Regulations and adopts the provisions related to such final Regulations within certainsubsections contained in Sections 4.5 through 4.8 of the Plan. Targeted contribution limits apply to Qualified Nonelective Contributions (as defined in Regulation Section 1.401(k)-6) cannot be taken into account in determining the ActualDeferral Percentage for a Plan Year for a Non-Highly Compensated Employee (“NHCE”) to the extent such contributions exceed the product of that Non-Highly Compensated Employee ‘s 414(s) Compensation and the greater of five percent(5%) or two (2) times the Plan’s “representative contribution rate.” Any Qualified Nonelective Contribution taken into account under an Actual Contribution Percentage test under Regulation Section 1.401(m)-2(a)(6)(including the determination of the representative contribution rate for purposes of Regulation Section 1.401(m)-2(a)(6)(v)(B)), is not permitted to be taken into account for purposes of this Section 4.5(g) (including the determination ofthe “representative contribution rate” under this Section). For purposes of this Section 4.5(g): 

(1) The Plan’s“representative contribution rate” is the lowest “applicable contribution rate” of any eligible Non-Highly Compensated Employee among a group of eligible Non-Highly Compensated Employees that consists of half of all eligibleNon-Highly Compensated Employees for the Plan Year (or, if greater, the lowest “applicable contribution rate” of any eligible Non-Highly Compensated Employee who is in the group of all eligible Non-Highly Compensated Employees for the PlanYear and who is employed by the Employer on the last day of the Plan Year), and 

(2) The “applicable contribution rate” for aneligible Non-Highly Compensated Employee is the sum of the Qualified Matching Contributions (as defined in Regulation Section 1.401(k)-6) taken into account in determining the Actual Deferral Ratio for the eligible Non-Highly CompensatedEmployee for the Plan Year and the Qualified Nonelective Contributions made for the eligible Non-Highly Compensated Employee for the Plan Year, divided by the eligible Non-Highly Compensated Employee ‘s 414(s) Compensation for the same period.

Notwithstanding the above, Qualified Nonelective Contributions that are made in connection with an Employer’s obligation to payprevailing wages under the Davis-Bacon Act (46 Stat. 1494), Public Law 71-798, Service Contract Act of 1965 (79 Stat. 1965), Public Law 89-286, or similar legislation can be taken into account for a Plan Year for an Non-Highly Compensated Employeeto the extent such contributions do not exceed 10 percent (10%) of that Non-Highly Compensated Employee ‘s 414(s) Compensation. 

 

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Qualified Matching Contributions (as defined in Regulation Section 1.401(k)-6) may only be used tocalculate an Actual Deferral Percentage to the extent that such Qualified Matching Contributions are matching contributions that are not precluded from being taken into account under the Actual Contribution Percentage test for the Plan Year underthe rules of Regulation Section 1.401(m)-2(a)(5)(ii) and as set forth in Section 4.7(h). 

(h) Qualified Nonelective Contributionsand Qualified Matching Contributions cannot be taken into account to determine an Actual Deferral Percentage to the extent such contributions are taken into account for purposes of satisfying any other Actual Deferral Ratio test, any ActualContribution Percentage test, or the requirements of Regulation Sections 1.401(k)-3, 1.401(m)-3, or 1.401(k)-4. Thus, matching contributions that are made pursuant to Regulation Section 1.401(k)-3(c) cannot be taken into account under theActual Contribution Percentage test. Similarly, if a plan switches from the current year testing method to the prior year testing method pursuant to Regulation Section 1.401(k)-2(c), Qualified Nonelective Contributions that are taken intoaccount under the current year testing method for a year may not be taken into account under the prior year testing method for the next year. 

(i) The Actual Deferral Ratio (ADR) of any Participant who is an Highly Compensated Employee for the Plan Year and who is eligible to have Elective Contributions (as defined in Regulation Section 1.401(k)-6) (and Qualified NonelectiveContributions and/or Qualified Matching Contributions, if treated as Elective Contributions for purposes of the ADP test) allocated to such Participant’s accounts under two (2) or more cash or deferred arrangements described in CodeSection 401(k), that are maintained by the same Employer, shall be determined as if such Elective Contributions (and, if applicable, such Qualified Nonelective Contributions and/or Qualified Matching Contributions) were made under a singlearrangement. If an Highly Compensated Employee participates in two or more cash or deferred arrangements of the Employer that have different Plan Years, then all Elective Contributions made during the Plan Year being tested under all such cash ordeferred arrangements shall be aggregated, without regard to the plan years of the other plans. However, for Plan Years beginning before the effective date of this Section 4.5(i), if the plans have different Plan Years, then all such cash ordeferred arrangements ending with or within the same calendar year shall be treated as single cash or deferred arrangement. Notwithstanding the foregoing, certain plans shall be treated as separate if mandatorily disaggregated under the Regulationsof Code Section 401(k). 

(j) Plans using different testing methods for the Actual Deferral Percentage and Actual ContributionPercentage testing. Except as otherwise provided in this Section, the Plan may use the current year testing method or prior year testing method for the Actual Deferral Percentage test for a Plan Year without regard to whether the current yeartesting method or prior year testing method is used for the Actual Contribution Percentage test for that Plan Year. However, if different testing methods are used, then the Plan cannot use: 

 
 (1)The recharacterization method of Regulation Section 1.401(k)-2(b)(3) to correct excess contributions for a Plan Year; 
 

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 (2)The rules of Regulation Section 1.401(m)-2(a)(6)(ii) to take Elective Contributions into account under the Actual Contribution Percentage test (rather than the Actual DeferralPercentage test); or 
 
 (3)The rules of Regulation Section 1.401(k)-2(a)(6)(v) to take Qualified Matching Contributions into account under the Actual Deferral Percentage test (rather than the ActualContribution Percentage test). 
4.6 ADJUSTMENT TO ACTUAL DEFERRAL PERCENTAGE TESTS 

In the event (or if it is anticipated) that the initial allocations of the Employer Elective Contributions made pursuant to Section 4.4 do (or might)not satisfy one of the tests set forth in Section 4.5(a), the Administrator shall adjust Excess Contributions pursuant to the options set forth below: 

(a) On or before the fifteenth day of the third month following the end of each Plan Year, but in no event later than the close of the following Plan Year, the Highly Compensated Participant having the largest dollaramount of Elective Contributions (less Catch-Up Contributions) shall have a portion of such Participant’s Elective Contributions treated as Catch-Up Contributions and/or distributed until the total amount of Excess Contributions has beentreated as Catch-Up Contributions and/or distributed, or until the amount of such Participant’s remaining Elective Contributions equals the Elective Contributions (less Catch-Up Contributions) of the Highly Compensated Participant having thesecond largest dollar amount of Elective Contributions (less Catch-Up Contributions). This process shall continue until the total amount of Excess Contributions has been eliminated. In determining the amount of Excess Contributions to be treated asCatch-Up Contributions and/or distributed with respect to an affected Highly Compensated Participant as determined herein, such amount shall be reduced pursuant to Section 4.2(e) by any Excess Deferred Compensation previously distributed tosuch affected Highly Compensated Participant for such Participant’s taxable year ending with or within such Plan Year and any forfeited matching contributions which relate to such Excess Deferred Compensation. Notwithstanding the above, forPlan Years beginning on or after January 1, 2007, For any Plan Year in which a Participant may make and does elect to make both Roth Elective Deferrals and Pre-Tax Elective Deferrals, the Administrator operationally may implement an orderingrule procedure for the distribution of Excess Contributions (Code Section 401(k)). The Plan has designated that Roth Elective Deferrals are distributed first, to the extent such type of Elective Deferrals was made for the year. 

(1) With respect to the distribution of Excess Contributions pursuant to (a) above, such distribution: 

(i) may be postponed but not later than the close of the Plan Year following the Plan Year to which they are allocable; 

 

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(ii) shall be proportionately from Deferred Compensation and matching contributions which relate to suchDeferred Compensation if used in the “Actual Deferral Percentage” text pursuant to Section 4.5 

(iii) shall be adjusted forIncome; and 

(iv) shall be designated by the Employer as a distribution of Excess Contributions (and Income). 

(2) Any distribution of less than the entire amount of Excess Contributions shall be treated as a pro rata distribution of Excess Contributions andIncome. Matching contributions which relate to Excess Contributions shall be forfeited unless the related matching contribution is distributed as an Excess Contribution pursuant to (1) above or as an Excess Aggregate Contribution pursuant tothis Article. 

(3) Matching contributions which relate to Excess Contributions shall be forfeited unless the related matching contributionis distributed as an Excess Aggregate Contribution pursuant to Section 4.8. 

(b) Notwithstanding the above, within twelve(12) months after the end of the Plan Year, the Employer may make a special Qualified Non-Elective Contribution in accordance with one of the following provisions which contribution shall be allocated to the Participant’s Elective Accountof each Non-Highly Compensated Participant eligible to share in the allocation in accordance with such provision. The Employer shall provide the Administrator with written notification of the amount of the contribution being made and for whichprovision it is being made pursuant to: 

(1) A special Qualified Non-Elective Contribution may be made on behalf of Non-Highly CompensatedParticipants in an amount sufficient to satisfy (or to prevent an anticipated failure of) one of the tests set forth in Section 4.5(a). Such contribution shall be allocated in the same proportion that each Non-Highly CompensatedParticipant’s 414(s) Compensation for the year (or prior year if the prior year testing method is being used) bears to the total 414(s) Compensation of all Non-Highly Compensated Participants for such year. 

(2) A special Qualified Non-Elective Contribution may be made on behalf of Non-Highly Compensated Participants in an amount sufficient to satisfy (or toprevent an anticipated failure of) one of the tests set forth in Section 4.5(a). Such contribution shall be allocated to each Non-Highly Compensated Participant electing salary reductions pursuant to Section 4.2 in the same proportion thateach such Non-Highly Compensated Participant’s Deferred Compensation (less Catch-Up Contributions) for the year (or at the end of the prior Plan Year if the prior year testing method is being used) bears to the total Deferred Compensation (lessCatch-Up Contributions) of all such Non-Highly Compensated Participants for such year. 

 

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(3) A special Qualified Non-Elective Contribution may be made on behalf of Non-Highly CompensatedParticipants in an amount sufficient to satisfy (or to prevent an anticipated failure of) one of the tests set forth in Section 4.5(a). Such contribution shall be allocated in equal amounts (per capita). 

(4) A special Qualified Non-Elective Contribution may be made on behalf of Non-Highly Compensated Participants electing salary reductions pursuant toSection 4.2 in an amount sufficient to satisfy (or to prevent an anticipated failure of) one of the tests set forth in Section 4.5(a). Such contribution shall be allocated for the year (or at the end of the prior Plan Year if the prioryear testing method is used) to each Non-Highly Compensated Participant electing salary reductions pursuant to Section 4.2 in equal amounts (per capita). 

(5) A special Qualified Non-Elective Contribution may be made on behalf of Non-Highly Compensated Participants in an amount sufficient to satisfy (or to prevent an anticipated failure of) one of the tests set forth inSection 4.5(a). Such contribution shall be allocated to the Non-Highly Compensated Participant having the lowest 414(s) Compensation, until one of the tests set forth in Section 4.5(a) is satisfied (or is anticipated to be satisfied), oruntil such Non-Highly Compensated Participant has received the maximum “annual addition” pursuant to Section 4.9. This process shall continue until one of the tests set forth in Section 4.5(a) is satisfied (or is anticipated tobe satisfied). 

Notwithstanding the above, at the Employer’s discretion, Non-Highly Compensated Participants who are not employed atthe end of the Plan Year (or at the end of the prior Plan Year if the prior year testing method is being used) shall not be eligible to receive a special Qualified Non-Elective Contribution and shall be disregarded. 

Notwithstanding the above, if the testing method changes from the current year testing method to the prior year testing method, then for purposes ofpreventing the double counting of Qualified Non-Elective Contributions for the first testing year for which the change is effective, any special Qualified Non-Elective Contribution on behalf of Non-Highly Compensated Participants used to satisfy the“Actual Deferral Percentage” or “Actual Contribution Percentage” test under the current year testing method for the prior year testing year shall be disregarded. 

(c) If during a Plan Year, it is projected that the aggregate amount of Elective Contributions to be allocated to all Highly Compensated Participantsunder this Plan would cause the Plan to fail the tests set forth in Section 4.5(a), then the Administrator may automatically reduce the deferral amount of affected Highly Compensated Participants, beginning with the Highly CompensatedParticipant who has the highest deferral ratio until it is anticipated the Plan will pass the tests or until the actual deferral ratio equals the actual deferral ratio of the Highly Compensated Participant having the next highest actual deferralratio. This process may continue until it is anticipated that the Plan will satisfy one of the tests set forth in Section 4.5(a). Alternatively, the Employer may specify a maximum percentage of Compensation that may be deferred. 

 

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(d) Any Excess Contributions (and Income) whichare distributed on or after 2  1/2 months after the end of the Plan Year shall be subject to the ten percent(10%) Employer excise tax imposed by Code Section 4979. 

(e) Distributions of Excess Contributions must be adjusted forincome (gain or loss), including an adjustment for income for the period between the end of the Plan Year and the date of the distribution (the “gap period”). The Administrator has the discretion to determine and allocate income using anyof the methods set forth below: 

(1) The Administrator may use any reasonable method for computing the income allocable to ExcessContributions, provided that the method does not violate Code Section 401(a)(4), is used consistently for all Participants and for all corrective distributions under the Plan for the Plan Year, and is used by the Plan for allocating income toParticipant’s accounts. A Plan will not fail to use a reasonable method for computing the income allocable to Excess Contributions merely because the income allocable to Excess Contributions is determined on a date that is no more than seven(7) days before the distribution. 

(2) The Administrator may allocate income to Excess Contributions for the Plan Year by multiplyingthe income for the Plan Year allocable to the Elective Contributions and other amounts taken into account under the Actual Deferral Percentage test (including contributions made for the Plan Year), by a fraction, the numerator of which is the ExcessContributions for the Employee for the Plan Year, and the denominator of which is the sum of the: 

(i) Account balance attributable toElective Contributions and other amounts into account under the Actual Deferral Percentage test as of the beginning of the Plan Year, and 

(ii) Any additional amount of such contributions made for the Plan Year. 

(3) The Administrator may use the safe harbor method in this subsection to determine income on Excess Contributions for the gap period. Under this safe harbor method, income on Excess Contributions for the gap period is equal to ten percent(10%) of the income allocable to Excess Contributions for the Plan Year that would be determined under subsection (2) above, multiplied by the number of calendar months that have elapsed since the end of the Plan Year. For purposes ofcalculating the number of calendar months that have elapsed under the safe harbor method, a corrective distribution that is made on or before the fifteenth (15th) day of a month is treated as made on the last day of the preceding month and a distribution made after the fifteenth day of a month is treated as made on the last day of the month. 

(4) The Administrator may determine the income for the aggregate of the Plan Year and the gap period, by applying the alternative method provided bysubsection (2) above to this aggregate period. This is accomplished by (i) substituting the income for the Plan Year and the gap period, for the income for the Plan Year, and (ii) substituting the amounts taken into account under theActual Deferral Percentage test for the Plan Year and the gap period, for the amounts taken into account the Actual Deferral Percentage test for the Plan Year in determining the fraction that is multiplied by that income. 

 

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(f) If a failed Actual Deferral Percentage test is to be corrected by making an Employer contribution,then the provisions of the Plan for the corrective contributions shall be applied by limiting the contribution made on behalf of any Non-Highly Compensated Employee pursuant to such provisions to an amount that does not exceed the targetedcontribution limits of Section 4.5(g), or in the case of a corrective contribution that is a Qualified Matching Contribution, the targeted contribution limit of Section 4.7(h). 

4.7 ACTUAL CONTRIBUTION PERCENTAGE TESTS 

(a) The “Actual Contribution Percentage” for the Highly Compensated Participant group shall not exceed the greater of: 

(1) 125 percent of such percentage for the Non-Highly Compensated Participant group (for the preceding Plan Year if the prior year testing method is used to calculate the “Actual Deferral Percentage” for the Non-Highly CompensatedParticipant group); or 

(2) the lesser of 200 percent of such percentage for the Non-Highly Compensated Participant group (for thepreceding Plan Year if the prior year testing method is used to calculate the “Actual Deferral Percentage” for the Non-Highly Compensated Participant group), or such percentage for the Non-Highly Compensated Participant group (for thepreceding Plan Year if the prior year testing method is used to calculate the “Actual Deferral Percentage” for the Non-Highly Compensated Participant group) plus 2 percentage points. The provisions of Code Section 401(m) andRegulation 1.401(m)-1(b) are incorporated herein by reference. 

(b) For the purposes of this Section and Section 4.8, “ActualContribution Percentage” for a Plan Year means, with respect to the Highly Compensated Participant group and Non-Highly Compensated Participant group (for the preceding Plan Year if the prior year testing method is used to calculate the“Actual Deferral Percentage” for the Non-Highly Compensated Participant group), the average of the ratios (calculated separately for each Participant in each group and rounded to the nearest one-hundredth of one percent) of: 

(1) the sum of Employer matching contributions made pursuant to Section 4.1(b) (to the extent such matching contributions are not used to satisfy the“Actual Deferral Percentage” tests) on behalf of each such Participant for such Plan Year; to 

(2) the Participant’s“414(s) Compensation” for such Plan Year. 

Notwithstanding the above, Employer matching contributions attributable to Catch-UpContributions are excluded from the calculation of the “Actual Contribution Percentage.” Such matching contributions shall be treated as a Forfeiture. 

 

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Notwithstanding the above, if the prior year testing method is used to calculate the “ActualContribution Percentage” for the Non-Highly Compensated Participant group for the first Plan Year of this amendment and restatement, for purposes of Section 4.7(a), the “Actual Contribution Percentage” for the Non-HighlyCompensated Participant group for the preceding Plan Year shall be determined pursuant to the provisions of the Plan then in effect. 

(c)For purposes of determining the “Actual Contribution Percentage,” only Employer matching contributions contributed to the Plan prior to the end of the succeeding Plan Year shall be considered. In addition, the Administrator may elect totake into account, with respect to Employees eligible to have Employer matching contributions made pursuant to Section 4.1(b) allocated to their accounts, elective deferrals (as defined in Regulation 1.402(g)-1(b)) and qualified non-electivecontributions (as defined in Code Section 401(m)(4)(C)) contributed to any plan maintained by the Employer. Such elective deferrals and qualified non-elective contributions shall be treated as Employer matching contributions subject toRegulation 1.401(m)-1(b)(5) which is incorporated herein by reference. However, the Plan Year must be the same as the plan year of the plan to which the elective deferrals and the qualified non-elective contributions are made. 

(d) For purposes of this Section and Code Sections 401(a)(4), 410(b) and 401(m), this Plan may not be combined with any other plan. 

(e) For purposes of Sections 4.7(a) and 4.8, a Highly Compensated Participant and Non-Highly Compensated Participant shall include any Employee eligibleto have Employer matching contributions (whether or not a deferral election was made or suspended) allocated to the Participant’s account for the Plan Year. 

Notwithstanding the above, if the prior year testing method is used to calculate the “Actual Contribution Percentage” for the Non-Highly Compensated Participant group for the first Plan Year of thisamendment and restatement, for the purposes of Section 4.7(a), a Non-Highly Compensated Participant shall include any such Employee eligible to have Employer matching contributions (whether or not a deferral election was made or suspended)allocated to the Participant’s account for the preceding Plan Year pursuant to the provisions of the Plan then in effect. 

(f) For thepurpose of this Section, when calculating the “Actual Contribution Percentage” for the Non-Highly Compensated Participant group, the current year testing method shall be used. Any change from the current year testing method to the prioryear testing method shall be made pursuant to Internal Revenue Service Notice 98-1, Section VII (or superseding guidance), the provisions of which are incorporated herein by reference. 

(g) Notwithstanding anything in this Section to the contrary, the provisions of this Section and Section 4.8 may be applied separately (or will beapplied separately to the extent required by Regulations) to each plan within the meaning of Regulation 1.401(k)-1(g)(11). Furthermore, the provisions of Code Section 401(k)(3)(F) may be used to exclude from consideration all Non-HighlyCompensated Employees who have not satisfied the minimum age and service requirements of Code Section 410(a)(1)(A). 

 

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(h) A matching contribution with respect to an Elective Contribution for a Plan Year is not taken intoaccount under the Actual Contribution Percentage test for an Non-Highly Compensated Employee to the extent it exceeds the greatest of: 

(1)five percent (5%) of the Non-Highly Compensated Employee’s 414(s) Compensation for the Plan Year; 

(2) the Non-Highly CompensatedEmployee’s Elective Contributions for the Plan Year; and 

(3) the product of two (2) times the Plan’s “representativematching rate” and the Non-Highly Compensated Employee ‘s Elective Contributions for the Plan Year. 

For purposes of thisSection, the Plan’s “representative matching rate” is the lowest “matching rate” for any eligible Non-Highly Compensated Employee among a group of Non-Highly Compensated Employees that consists of half of all eligibleNon-Highly Compensated Employees in the Plan for the Plan Year who make Elective Contributions for the Plan Year (or, if greater, the lowest “matching rate” for all eligible Non-Highly Compensated Employees in the Plan who are employed bythe Employer on the last day of the Plan Year and who make Elective Contributions for the Plan Year). 

For purposes of this Section, the“matching rate” for a Participant generally is the matching contributions made for such Participant divided by the Participant’s Elective Contributions for the Plan Year. If the matching rate is not the same for all levels of ElectiveContributions for a Participant, then the Participant’s “matching rate” is determined assuming that an Participant’s Elective Contributions are equal to six percent (6%) of Code Section 414(s) Compensation. 

If the Plan provides a match with respect to the sum of the Participant’s after-tax Employee Contributions and Elective Contributions, then forthe purposes of this Section, that sum is substituted for the amount of the Participant’s Elective Contributions in subsections (2) & (3) above and in determining the “matching rate,” and Participants who make eitherafter-tax Employee Contributions or Elective Contributions are taken into account in determining the Plan’s “representative matching rate.” Similarly, if the Plan provides a match with respect to the Participant’s after-taxEmployee Contributions, but not Elective Contributions, then for purposes of this subsection, the Participant’s after-tax Employee Contributions are substituted for the amount of the Participant’s Elective Contributions insubsections (2) & (3) above and in determining the “matching rate,” and Participants who make after-tax Employee Contributions are taken into account in determining the Plan’s “representative matchingrate.” 

(i) Qualified Nonelective Contributions (as defined in Regulation Section 1.401(k)-6) cannot be taken into account underthe Actual Contribution Percentage test for a Plan Year for an Non-Highly Compensated Employee to the extent such contributions exceed the product of that Non-Highly Compensated Employee’s 414(s) Compensation and the greater of five percent(5%) or two 

 

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(2) times the Plan’s “representative contribution rate.” Any Qualified Nonelective Contribution taken into account under an ActualDeferral Percentage test under Regulation Section 1.401(k)-2(a)(6) (including the determination of the “representative contribution rate” for purposes of Regulation Section 1.40(k)-2(a)(6)(iv)(B)) is not permitted to be takeninto account for purposes of this subsection (including the determination of the “representative contribution rate” for purposes of subsection (1) below). For purposes of this subsection: 

( 1) The Plan’s “representative contribution rate” is the lowest “applicable contribution rate” of any eligible Non-HighlyCompensated Employee among a group of eligible Non-Highly Compensated Employees that consists of half of all eligible Non-Highly Compensated Employees for the Plan Year (or, if greater, the lowest “applicable contribution rate” of anyeligible Non-Highly Compensated Employee who is in the group of all eligible Non-Highly Compensated Employees for the Plan Year and who is employed by the Employer on the last day of the Plan Year), and 

(2) The “applicable contribution rate” for an eligible Non-Highly Compensated Employee is the sum of the matching contributions (as defined inRegulation Section 1.401(m)-1(a)(2)) taken into account in determining the Applicable Contribution Rate for the eligible Non-Highly Compensated Employee for the Plan Year and the Qualified Nonelective Contributions made for that Non-HighlyCompensated Employee for the Plan Year, divided by that Non-Highly Compensated Employees Code Section 414(s) Compensation for the Plan Year. 

Notwithstanding the above, Qualified Nonelective Contributions that are made in connection with an Employer’s obligation to pay prevailing wages under the Davis-Bacon Act (46 Stat. 1494), Public Law 71-798, Service Contract Act of 1965(79 Stat. 1965), Public Law 89-286, or similar legislation can be taken into account for a Plan Year for an Non-Highly Compensated Employee to the extent such contributions do not exceed 10 percent (10%) of that Non-Highly Compensated Employees414(s) Compensation. 

(j) The Actual Contribution Ratio (ACR) for any Participant who is a Highly Compensated Employee and who is eligibleto have Matching Contributions or after-tax Employee Contributions allocated to his or her account under two (2) or more plans described in Code Section 401(a), or arrangements described in Code Section 401(k) that are maintained bythe same Employer, shall be determined as if the total of such contributions was made under each plan and arrangement. If a Highly Compensated Employee participates in two (2) or more such plans or arrangements that have different plan years,then all matching contributions and after-tax Employee Contributions made during the Plan Year being tested under all such plans and arrangements shall be aggregated, without regard to the plan years of the other plans. For Plan Years beginningbefore the effective date of this Section 4.7(j), all such plans and arrangements ending with or within the same calendar year shall be treated as single plan or arrangement. Notwithstanding the foregoing, certain plans shall be treated asseparate if mandatorily disaggregated under the Regulations of Code Section 401(m). 

 

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(k) Plans using different testing methods for the Actual Contribution Percentage and Actual DeferralPercentage test. Except as otherwise provided in this subsection, the Plan may use the current year testing method or prior year testing method for the Actual Contribution Percentage test for a Plan Year without regard to whether the current yeartesting method or prior year testing method is used for the ADP test for that Plan Year. However, if different testing methods are used, then the Plan cannot use: 

(1) The recharacterization method of Regulation Section 1.401(k)-2(b)(3) to correct excess contributions for a Plan Year; 

(2) The rules of Regulation Section 1.401(m)-2(a)(6)(ii) to take Elective Contribution into account under the Actual Contribution Percentage test (rather than the Actual Deferral Percentage test); or 

(3) The rules of Regulation Section 1.401(k)-2(a)(6) to take Qualified Matching Contributions into account under the Actual Deferral Percentagetest (rather than the Actual Contribution Percentage test). 

4.8 ADJUSTMENT TO ACTUAL CONTRIBUTION PERCENTAGE TESTS 

(a) In the event (or if it is anticipated) that the “Actual Contribution Percentage” for the Highly Compensated Participant group exceeds (ormight exceed) the “Actual Contribution Percentage” for the Non-Highly Compensated Participant group pursuant to Section 4.7(a), the Administrator (on or before the fifteenth day of the third month following the end of the Plan Year,but in no event later than the close of the following Plan Year) shall direct the Trustee to distribute to the Highly Compensated Participant having the largest dollar amount of contributions determined pursuant to Section 4.7(b)(1), the Vestedportion of such contributions (and Income allocable to such contributions) and, if forfeitable, forfeit such non-Vested Excess Aggregate Contributions attributable to Employer matching contributions (and Income allocable to such forfeitures) untilthe total amount of Excess Aggregate Contributions has been distributed, or until the Participant’s remaining amount equals the amount of contributions determined pursuant to Section 4.7(b)(1) of the Highly Compensated Participant havingthe second largest dollar amount of contributions. This process shall continue until the total amount of Excess Aggregate Contributions has been distributed. 

Notwithstanding the above, for Plan Years beginning on or after January 1, 2007, For any Plan Year in which a Participant may make and does elect to make both Roth Elective Deferrals and Pre-Tax ElectiveDeferrals, the Administrator operationally may implement an ordering rule procedure for the distribution of Excess Aggregate Contributions (Code Section 401(m)). The Plan has designated that Roth Elective Deferrals are distributed first, to theextent such type of Elective Deferrals was made for the year. 

If the correction of Excess Aggregate Contributions attributable to Employermatching contributions is not in proportion to the Vested and non-Vested portion of such contributions, then the Vested portion of the Participant’s Account attributable to Employer matching contributions after the correction shall be subjectto Section 7.5(i). 

 

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(b) Any distribution and/or forfeiture of less than the entire amount of Excess Aggregate Contributions(and Income) shall be treated as a pro rata distribution and/or forfeiture of Excess Aggregate Contributions and Income. Distribution of Excess Aggregate Contributions shall be designated by the Employer as a distribution of Excess AggregateContributions (and Income). Forfeitures of Excess Aggregate Contributions shall be treated in accordance with Section 4.4. However, no such forfeiture may be allocated to a Highly Compensated Participant whose contributions are reduced pursuantto this Section. 

(c) Excess Aggregate Contributions, including forfeited matching contributions, shall be treated as Employercontributions for purposes of Code Sections 404 and 415 even if distributed from the Plan. 

Forfeited matching contributions that arereallocated to Participants’ Accounts for the Plan Year in which the forfeiture occurs shall be treated as an “annual addition” pursuant to Section 4.9(b) for the Participants to whose Accounts they are reallocated and for theParticipants from whose Accounts they are forfeited. 

(d) The determination of the amount of Excess Aggregate Contributions with respect toany Plan Year shall be made after first determining the Excess Contributions, if any, to be treated as after-tax voluntary Employee contributions due to recharacterization for the plan year of any other qualified cash or deferred arrangement (asdefined in Code Section 401(k)) maintained by the Employer that ends with or within the Plan Year. 

(e) If during a Plan Year theprojected aggregate amount of Employer matching contributions to be allocated to all Highly Compensated Participants under this Plan would, by virtue of the tests set forth in Section 4.7(a), cause the Plan to fail such tests, then theAdministrator may automatically reduce proportionately or in the order provided in Section 4.8(a) each affected Highly Compensated Participant’s projected share of such contributions by an amount necessary to satisfy one of the tests setforth in Section 4.7(a). 

(f) Notwithstanding the above, within twelve (12) months after the end of the Plan Year, the Employermay make a special Qualified Non-Elective Contribution in accordance with one of the following provisions which contribution shall be allocated to the Participant’s Account of each Non-Highly Compensated Participant eligible to share in theallocation in accordance with such provision. The Employer shall provide the Administrator with written notification of the amount of the contribution being made and for which provision it is being made pursuant to: 

(1) A special Qualified Non-Elective Contribution may be made on behalf of Non-Highly Compensated Participants in an amount sufficient to satisfy (or toprevent an anticipated failure of) one of the tests set forth in Section 4.7. Such contribution shall be allocated in the same proportion that each Non-Highly Compensated Participant’s 414(s) Compensation for the year (or prior year if theprior year testing method is being used) bears to the total 414(s) Compensation of all Non-Highly Compensated Participants for such year. 

 

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(2) A special Qualified Non-Elective Contribution may be made on behalf of Non-Highly CompensatedParticipants in an amount sufficient to satisfy (or to prevent an anticipated failure of) one of the tests set forth in Section 4.7. Such contribution shall be allocated to each Non-Highly Compensated Participant electing salary reductionspursuant to Section 4.2 in the same proportion that each such Non-Highly Compensated Participant’s Deferred Compensation (less Catch-Up Contributions) for the year (or at the end of the prior Plan Year if the prior year testing method isbeing used) bears to the total Deferred Compensation (less Catch-Up Contributions) of all such Non-Highly Compensated Participants for such year. 

(3) A special Qualified Non-Elective Contribution may be made on behalf of Non-Highly Compensated Participants in an amount sufficient to satisfy (or to prevent an anticipated failure of) one of the tests set forth in Section 4.7. Suchcontribution shall be allocated in equal amounts (per capita). 

(4) A special Qualified Non-Elective Contribution may be made on behalf ofNon-Highly Compensated Participants electing salary reductions pursuant to Section 4.2 in an amount sufficient to satisfy (or to prevent an anticipated failure of) one of the tests set forth in Section 4.7. Such contribution shall beallocated for the year (or at the end of the prior Plan Year if the prior year testing method is used) to each Non-Highly Compensated Participant electing salary reductions pursuant to Section 4.2 in equal amounts (per capita). 

(5) A special Qualified Non-Elective Contribution may be made on behalf of Non-Highly Compensated Participants in an amount sufficient to satisfy (or toprevent an anticipated failure of) one of the tests set forth in Section 4.7. Such contribution shall be allocated to the Non-Highly Compensated Participant having the lowest 414(s) Compensation, until one of the tests set forth inSection 4.7 is satisfied (or is anticipated to be satisfied), or until such Non-Highly Compensated Participant has received the maximum “annual addition” pursuant to Section 4.9. This process shall continue until one of the testsset forth in Section 4.7 is satisfied (or is anticipated to be satisfied). 

Notwithstanding the above, at the Employer’sdiscretion, Non-Highly Compensated Participants who are not employed at the end of the Plan Year (or at the end of the prior Plan Year if the prior year testing method is being used) shall not be eligible to receive a special Qualified Non-ElectiveContribution and shall be disregarded. 

Notwithstanding the above, if the testing method changes from the current year testing method tothe prior year testing method, then for purposes of preventing the double counting of Qualified Non-Elective Contributions for the first testing year for which the change is effective, any special Qualified Non-Elective Contribution on behalf ofNon-Highly Compensated Participants used to satisfy the “Actual Deferral Percentage” or “Actual Contribution Percentage” test under the current year testing method for the prior year testing year shall be disregarded. 

 

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(g) Any Excess Aggregate Contributions (and Income) which are distributed on or after 2 1/2 months afterthe end of the Plan Year shall be subject to the ten percent (10%) Employer excise tax imposed by Code Section 4979. 

(h)Distributions of Excess Aggregate Contributions must be adjusted for income (gain or loss), including an adjustment for income for the period between the end of the Plan Year and the date of the distribution (the “gap period”). For thepurpose of this subsection, “income” shall be determined and allocated in accordance with the provisions of Section 4.6(e), except that such subsection shall be applied by substituting “Excess Contributions” with“Excess Aggregate Contributions” and by substituting amounts taken into account under the Actual Contribution Percentage test for amounts taken into account under the Actual Deferral Percentage test. 

(i) If a failed Actual Deferral Percentage test is to be corrected by making an Employer Contribution, then the provisions of the Plan for the correctivecontributions shall be applied by limiting the contribution made on behalf of any Non-Highly Compensated Employee pursuant to such provisions to an amount that does not exceed the targeted contribution limits of subsections 4.7(h) and 4.7(i).

4.9 MAXIMUM ANNUAL ADDITIONS 

(a) Notwithstanding the foregoing, the maximum “annual additions” credited to a Participant’s accounts for any “limitation year” shall equal the lesser of: (1) $40,000 adjusted annually as provided in CodeSection 415(d) pursuant to the Regulations, or (2) one-hundred percent (100%) of the Participant’s “415 Compensation” for such “limitation year.” If the Employer contribution that would otherwise becontributed or allocated to the Participant’s accounts would cause the “annual additions” for the “limitation year” to exceed the maximum “annual additions,” the amount contributed or allocated will be reduced sothat the “annual additions” for the “limitation year” will equal the maximum “annual additions,” and any amount in excess of the maximum “annual additions,” which would have been allocated to such Participantmay be allocated to other Participants. For any short “limitation year,” the dollar limitation in (1) above shall be reduced by a fraction, the numerator of which is the number of full months in the short “limitation year”and the denominator of which is twelve (12). 

(b) For purposes of applying the limitations of Code Section 415, “annualadditions” means the sum credited to a Participant’s accounts for any “limitation year” of (1) Employer contributions, (2) Employee contributions, (3) forfeitures, (4) amounts allocated, after March 31,1984, to an individual medical account, as defined in Code Section 415(1)(2) which is part of a pension or annuity plan maintained by the Employer, (5) amounts derived from contributions paid or accrued after December 31, 1985, intaxable years ending after such date, which are attributable to post-retirement medical benefits allocated to the separate account of a key employee (as defined in Code Section 419A(d)(3)) under a welfare benefit plan (as defined in CodeSection 419(e)) maintained by the Employer 

 

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and (6) allocations under a simplified employee pension plan. Except, however, the “415 Compensation” percentage limitation referred to inparagraph (a)(2) above shall not apply to: (1) any contribution for medical benefits after separation from service (within the meaning of Code Sections 401(h) or 419A(f)(2)) which is otherwise treated as an “annual addition,” or(2) any amount otherwise treated as an “annual addition” under Code Section 415(l)(1). 

If the “annualadditions” under the Plan would cause the maximum “annual additions” to be exceeded for any Participant, and all or a portion of the “excess amount” is treated as a Catch-Up Contribution, then any matching contributionswhich relate to such Catch-Up Contribution will be used to reduce the Employer contribution in the next “limitation year.” 

(c)For purposes of applying the limitations of Code Section 415, the following are not “annual additions”: (1) the transfer of funds from one qualified plan to another and (2) provided the Employer has not elected to be an Scorporation under Code Section 1362(a) and provided no more than one-third of the Employer contributions for the year are allocated to Highly Compensated Participants, Forfeitures of Company Stock purchased with the proceeds of an Exempt Loanand Employer contributions applied to the payment of interest on an Exempt Loan. In addition, the following are not Employee contributions for the purposes of Section 4.9(b): (1) rollover contributions (as defined in Code Sections 402(c),403(a)(4), 403(b)(8), 408(d)(3) and 457(e)(16)); (2) repayments of loans made to a Participant from the Plan; (3) repayments of distributions received by an Employee pursuant to Code Section 411(a)(7)(B) (cash-outs);(4) repayments of distributions received by an Employee pursuant to Code Section 411(a)(3)(D) (mandatory contributions); and (5) Employee contributions to a simplified employee pension excludable from gross income under CodeSection 408(k)(6). 

(d) For purposes of applying the limitations of Code Section 415, the “limitation year” shall bethe Plan Year. 

(e) For the purpose of this Section, all qualified defined contribution plans (whether terminated or not) ever maintainedby the Employer shall be treated as one defined contribution plan. 

(f) For the purpose of this Section, if the Employer is a member of acontrolled group of corporations, trades or businesses under common control (as defined by Code Section 1563(a) or Code Section 414(b) and (c) as modified by Code Section 415(h)), is a member of an affiliated service group (asdefined by Code Section 414(m)), or is a member of a group of entities required to be aggregated pursuant to Regulations under Code Section 414(o), all Employees of such Employers shall be considered to be employed by a single Employer.

(g) If this is a plan described in Code Section 413(c) (other than a plan described in Code Section 413(f)), then all of thebenefits or contributions attributable to a Participant from all of the Employers maintaining this Plan shall be taken into account in applying the limits of this Section with respect to such Participant. Furthermore, in applying the limitations ofthis Section with respect to such a Participant, the total “415 Compensation” received by the Participant from all of the Employers maintaining the Plan shall be taken into account. 

 

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(h)(1) If a Participant participates in more than one defined contribution plan maintained by theEmployer which have different Anniversary Dates, the maximum “annual additions” under this Plan shall equal the maximum “annual additions” for the “limitation year” minus any “annual additions” previouslycredited to such Participant’s accounts during the “limitation year.” 

(2) If a Participant participates in both a definedcontribution plan subject to Code Section 412 and a defined contribution plan not subject to Code Section 412 maintained by the Employer which have the same Anniversary Date, “annual additions” will be credited to theParticipant’s accounts under the defined contribution plan subject to Code Section 412 prior to crediting “annual additions” to the Participant’s accounts under the defined contribution plan not subject to CodeSection 412. 

(3) If a Participant participates in more than one defined contribution plan not subject to Code Section 412maintained by the Employer which have the same Anniversary Date, the maximum “annual additions” under this Plan shall equal the product of (A) the maximum “annual additions” for the “limitation year” minus any“annual additions” previously credited under subparagraphs (1) or (2) above, multiplied by (B) a fraction (i) the numerator of which is the “annual additions” which would be credited to such Participant’saccounts under this Plan without regard to the limitations of Code Section 415 and (ii) the denominator of which is such “annual additions” for all plans described in this subparagraph. 

(i) Notwithstanding anything contained in this Section to the contrary, the limitations, adjustments and other requirements prescribed in this Sectionshall at all times comply with the provisions of Code Section 415 and the Regulations thereunder. 

4.10 ADJUSTMENT FOR EXCESSIVEANNUAL ADDITIONS 

(a) If, as a result of the allocation of Forfeitures, a reasonable error in estimating a Participant’s Compensation,a reasonable error in determining the amount of elective deferrals (within the meaning of Code Section 402(g)(3)) that may be made with respect to any Participant under the limits of Section 4.9 or other facts and circumstances to whichRegulation 1.415-6(b)(6) shall be applicable, the “annual additions” under this Plan would cause the maximum “annual additions” to be exceeded for any Participant, the “excess amount” will be disposed of in one of thefollowing manners, as uniformly determined by the Administrator for all Participants similarly situated. 

(1) Any matched DeferredCompensation and Employer matching contributions which relate to such Deferred Compensation will be proportionately reduced to the extent they would reduce the “excess amount.” The Deferred Compensation (and any gains attributable to suchDeferred Compensation) will be distributed to the Participant and the Employer matching contributions (and any gains attributable to such matching contributions) will be used to reduce the Employer contribution in the next “limitationyear;” 

 

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(2) If, after the application of paragraph (1) above, an “excess amount” still exists, andthe Participant is covered by the Plan at the end of the “limitation year,” then the “excess amount” will be used to reduce the Employer contribution (including allocation of any Forfeitures) for such Participant in the next“limitation year,” and each succeeding “limitation year” if necessary; 

(3) If, after the application of subparagraphs(1) and (2) above, an “excess amount” still exists, and the Participant is not covered by the Plan at the end of the “limitation year,” then the “excess amount” will be held unallocated in a “Section 415suspense account.” The “Section 415 suspense account” will be applied to reduce future Employer contributions (including allocation of any Forfeitures) for all remaining Participants in the next “limitation year,” and eachsucceeding “limitation year” if necessary; 

(4) If a “Section 415 suspense account” is in existence at any time duringthe “limitation year” pursuant to this Section, it will not participate in the allocation of investment gains and losses of the Trust Fund. If a “Section 415 suspense account” is in existence at any time during a particular“limitation year,” all amounts in the “Section 415 suspense account” must be allocated and reallocated to Participants’ accounts before any Employer contributions or any Employee contributions may be made to the Plan forthat “limitation year.” Except as provided in (1) above, “excess amounts” may not be distributed to Participants or Former Participants. 

(b) For purposes of this Article, “excess amount” for any Participant for a “limitation year” shall mean the excess, if any, of (1) the “annual additions” which would be credited tothe Participant’s account under the terms of the Plan without regard to the limitations of Code Section 415 over (2) the maximum “annual additions” determined pursuant to Section 4.9. 

(c) For purposes of this Section, “Section 415 suspense account” shall mean an unallocated account equal to the sum of “excessamounts” for all Participants in the Plan during the “limitation year.” 

(d) Notwithstanding the above, for Plan Yearsbeginning on or after January 1, 2007, For any Plan Year in which a Participant may make and does elect to make both Roth Elective Deferrals and Pre-Tax Elective Deferrals, the Administrator operationally may implement an ordering ruleprocedure for the distribution of Excess Annual Additions (Code Section 415). Such ordering rules may specify whether the Pre-Tax Elective Deferrals or Roth Elective Deferrals are distributed first, to the extent such type of Elective Deferralswas made for the year. Furthermore, such procedure may permit the Participant to elect which type of Elective Deferrals shall be distributed first. 

 

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4.11 PLAN-TO-PLAN TRANSFERS FROM QUALIFIED PLANS 

(a) With the consent of the Administrator, amounts may be transferred (within the meaning of Code Section 414(l)) to this Plan from other taxqualified plans under Code Section 401(a) by Eligible Employees, provided that the trust from which such funds are transferred permits the transfer to be made and the transfer will not jeopardize the tax exempt status of the Plan or Trust orcreate adverse tax consequences for the Employer. Prior to accepting any transfers to which this Section applies, the Administrator may require an opinion of counsel that the amounts to be transferred meet the requirements of this Section. Theamounts transferred shall be set up in a separate account herein referred to as a Participant’s Transfer Account. Furthermore, for vesting purposes, the Participant’s portion of the Participant’s Transfer Account attributable to anytransfer shall be subject to Section 7.4(b). 

Except as permitted by Regulations (including Regulation 1.411(d)-4), amountsattributable to elective contributions (as defined in Regulation 1.401(k)-1(g)(3)), including amounts treated as elective contributions, which are transferred from another qualified plan in a plan-to-plan transfer (other than a direct rollover)shall be subject to the distribution limitations provided for in Regulation 1.401(k)-1(d). 

(b) Amounts in a Participant’s TransferAccount shall be held by the Trustee pursuant to the provisions of this Plan and may not be withdrawn by, or distributed to the Participant, in whole or in part, except as provided in Section 7.13 and paragraph (c) of this Section. TheTrustee shall have no duty or responsibility to inquire as to the propriety of the amount, value or type of assets transferred, nor to conduct any due diligence with respect to such assets; provided, however, that such assets are otherwise eligibleto be held by the Trustee under the terms of this Plan. 

(c) At Normal Retirement Date, or such other date when the Participant or theParticipant’s Beneficiary shall be entitled to receive benefits, the Participant’s Transfer Account shall be used to provide additional benefits to the Participant or the Participant’s Beneficiary. Any distributions of amounts held ina Participant’s Transfer Account shall be made in a manner which is consistent with and satisfies the provisions of Section 7.5, including, but not limited to, all notice and consent requirements of Code Section 411(a)(11) and theRegulations thereunder. Furthermore, such amounts shall be considered as part of a Participant’s benefit in determining whether an involuntary cash-out of benefits may be made without Participant consent. 

(d) The Administrator may direct that Employee transfers made after a Valuation Date be segregated into a separate account for each Participant untilsuch time as the allocations pursuant to this Plan have been made, at which time they may remain segregated or be invested as part of the general Trust Fund. 

(e) This Plan shall not accept any direct or indirect transfers (as that term is defined and interpreted under Code Section 401(a)(11) and the Regulations thereunder) from a defined benefit plan, money purchaseplan (including a target benefit plan), stock bonus or profit sharing plan which would otherwise have provided for a life annuity form of payment to the Participant. 

 

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(f) Notwithstanding anything herein to the contrary, a transfer directly to this Plan from anotherqualified plan (or a transaction having the effect of such a transfer) shall only be permitted if it will not result in the elimination or reduction of any “Section 411(d)(6) protected benefit” as described in Section 9.1. 

4.12 ROLLOVERS FROM OTHER PLANS 

(a) Withthe consent of the Administrator, the Plan may accept a “rollover” by Eligible Employees, provided the “rollover” will not jeopardize the tax-exempt status of the Plan or create adverse tax consequences for the Employer. Prior toaccepting any “rollovers” to which this Section applies, the Administrator may require the Employee to establish (by providing an opinion of counsel, or otherwise) that the amounts to be rolled over to this Plan meet the requirements ofthis Section. The amounts rolled over shall be set up in a separate account herein referred to as a Participant’s Rollover Account. Such account shall be fully Vested at all times and shall not be subject to Forfeiture for any reason.

Notwithstanding anything in this Plan to the contrary, with the consent of the Administrator, the Plan will accept a “rollover”by an Eligible Employee of an amount designated as a Roth Elective Deferral only if it is a “direct rollover” from another Roth Elective Deferral account of an applicable retirement plan as described in Code Section 402A(e)(1) andonly to the extent the rollover is permitted under the rules of Code Section 402(c). The Employer, operationally and on a uniform and nondiscriminatory basis, may decide whether to accept any such rollovers. 

(b) Amounts in a Participant’s Rollover Account shall be held by the Trustee pursuant to the provisions of this Plan and may not be withdrawn by, ordistributed to the Participant, in whole or in part, except as provided in Section 7.13 and paragraph (c) of this Section. The Trustee shall have no duty or responsibility to inquire as to the propriety of the amount, value or type ofassets transferred, nor to conduct any due diligence with respect to such assets; provided, however, that such assets are otherwise eligible to be held by the Trustee under the terms of this Plan. 

(c) At such date when the Participant or the Participant’s Beneficiary shall be entitled to receive benefits, the Participant’s RolloverAccount shall be used to provide additional benefits to the Participant or the Participant’s Beneficiary. Furthermore, amounts in the Participant’s Rollover Account, with respect to distributions made on and after March 28, 2005 shallbe considered as part of a Participant’s benefit in determining whether an involuntary cash-out of benefits may be made without Participant consent. Any distributions of amounts held in a Participant’s Rollover Account shall be made in amanner which is consistent with and satisfies the provisions of Section 7.5, including, but not limited to, all notice and consent requirements of Code Section 411(a)(11) and the Regulations thereunder. 

 

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(d) The Administrator may direct that Employee “rollovers” made after a Valuation Date besegregated into a separate account for each Participant until such time as the allocations pursuant to this Plan have been made, at which time they may remain segregated or be invested as part of the general Trust Fund. 

(e) For purposes of this Section the following definitions shall apply: 

(1) A “rollover” means: (i) amounts transferred to this Plan directly from another “eligible retirement plan;” (ii) distributions received by an Employee from other “eligibleretirement plans” which are eligible for tax-free rollover to an “eligible retirement plan” and which are transferred by the Employee to this Plan within sixty (60) days following receipt thereof; (iii) amounts transferredto this Plan from a conduit individual retirement account provided that the conduit individual retirement account has no assets other than assets which (A) were previously distributed to the Employee by another “eligible retirementplan,” (B) were eligible for tax-free rollover to an “eligible retirement plan” and (C) were deposited in such conduit individual retirement account within sixty (60) days of receipt thereof; (iv) amountsdistributed to the Employee from a conduit individual retirement account meeting the requirements of clause (iii) above, and transferred by the Employee to this Plan within sixty (60) days of receipt thereof from such conduit individualretirement account; and (v) any other amounts which are eligible to be rolled over to this Plan pursuant to the Code. 

(2) An“eligible retirement plan” means an individual retirement account described in Code Section 408(a), an individual retirement annuity described in Code Section 408(b) (other than an endowment contract), a qualified trust (anemployees’ trust described in Code Section 401(a) which is exempt from tax under Code Section 501(a)), an annuity plan described in Code Section 403(a), an eligible deferred compensation plan described in Code Section 457(b)which is maintained by an eligible employer described in Code Section 457(e)(1)(A), and an annuity contract described in Code Section 403(b). 

4.13 DIRECTED INVESTMENT ACCOUNT 

(a) Each “Qualified Participant” may elect within ninety(90) days after the close of each Plan Year during the “Qualified Election Period” to direct the Trustee in writing as to the distribution in cash of 25 percent of the total number of shares of Company Stock acquired by or contributedto the Plan that have ever been allocated to such “Qualified Participant’s” Company Stock Account (reduced by the number of shares of Company Stock previously distributed in cash pursuant to a prior election). In the case of theelection year in which the last election can be made by the Participant, the preceding sentence shall be applied by substituting “50 percent” for “25 percent.” If the “Qualified Participant” elects to direct the Trusteeas to the distribution of the Participant’s Company Stock Account, such direction shall be effective no later than 180 days after the close of the Plan Year to which such direction applies. 

Notwithstanding the above, if the fair market value (determined pursuant to Section 6.1 at the Plan Valuation Date immediately preceding the firstday on which a “Qualified Participant” is eligible to make an election) of Company Stock acquired by or 

 

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contributed to the Plan and allocated to a “Qualified Participant’s” Company Stock Account is 8500 or less, then such Company Stock shall notbe subject to this paragraph. For purposes of determining whether the fair market value exceeds $500, Company Stock held in accounts of all employee stock ownership plans (as defined in Code Section 4975(e)(7)) and tax credit employee stockownership plans (as defined in Code Section 409(a)) maintained by the Employer or any Affiliated Employer shall be considered as held by the Plan. 

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

(1) “QualifiedParticipant” means any Participant or Former Participant who has completed ten (10) Years of Service as a Participant and has attained age 55. 

(2) “Qualified Election Period” means the six (6) Plan Year period beginning with the first Plan Year in which the Participant first became a “Qualified Participant.” 

4.14 QUALIFIED MILITARY SERVICE 

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

4.15 SPECIAL LIMITATION FOR COMMONWEALTH OF PUERTO RICO 

With respect to all employees whose taxation isgoverned by the revenue laws of Puerto Rico, the limitations set forth in this Article IV shall be reduced to comply with the limitations as shall from time to time be applicable under the revenue laws of the Commonwealth of Puerto Rico. 

**ARTICLE V**

**FUNDING AND INVESTMENTPOLICY**

5.1 INVESTMENT POLICY 

(a) The Plan is designed to invest primarily in Company Stock. However, Deferred Compensation shall not be invested in Company Stock. 

(b) With due regard to subparagraph (a) above, the Administrator may also direct the Trustee to invest funds under the Plan in other property described in the Trust or in life insurance policies to the extent permitted by subparagraph(c) below, or the Trustee may hold such funds in cash or cash equivalents. 

(c) With due regard to subparagraph (a) above, theAdministrator may also direct the Trustee to invest funds under the Plan in insurance policies on the life of any “keyman” Employee. The proceeds of a “keyman” insurance policy may not be used for the repayment of anyindebtedness owed by the Plan which is secured by Company Stock. In the event any “keyman” insurance is purchased by the Trustee, the premiums paid thereon during any Plan Year, net of any policy dividends and increases in cash surrendervalues, shall be treated as the cost of Plan investment and any death benefit or cash surrender value received shall be treated as proceeds from an investment of the Plan. 

 

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(d) The Plan may not obligate itself to acquire Company Stock from a particular holder thereof at anindefinite time determined upon the happening of an event such as the death of the holder. 

(e) The Plan may not obligate itself to acquireCompany Stock under a put option binding upon the Plan. However, at the time a put option is exercised, the Plan may be given an option to assume the rights and obligations of the Employer under a put option binding upon the Employer. 

(f) All purchases of Company Stock shall be made at a price which, in the judgment of the Administrator, does not exceed the fair market value thereof.All sales of Company Stock shall be made at a price which, in the judgment of the Administrator, is not less than the fair market value thereof. The valuation rules set forth in Article VI shall be applicable. 

5.2 APPLICATION OF CASH 

Employercontributions in cash, and any earnings on such contributions, shall first be applied to pay any Current Obligations of the Trust Fund. 

5.3 LOANS TO THE TRUST 

(a) The Plan may borrow money for any lawful purpose, provided the proceeds of an Exempt Loan are usedwithin a reasonable time after receipt only for any or all of the following purposes: 

(1) To acquire Company Stock. 

(2) To repay such loan. 

(3) To repay aprior Exempt Loan. 

(b) All loans to the Trust which are made or guaranteed by a disqualified person must satisfy all requirementsapplicable to Exempt Loans including but not limited to the following: 

(1) The loan must be at a reasonable rate of interest; 

(2) Any collateral pledged to the creditor by the Plan shall consist only of the Company Stock purchased with the borrowed funds; 

(3) Under the terms of the loan, any pledge of Company Stock shall provide for the release of shares so pledged on a pro-rata basis pursuant toSection 4.4(e); 

 

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(4) Under the terms of the loan, the creditor shall have no recourse against the Plan except with respectto such collateral, earnings attributable to such collateral, Employer contributions (other than contributions of Company Stock) that are made to meet Current Obligations and earnings attributable to such contributions; 

(5) The loan must be for a specific term and may not be payable at the demand of any person, except in the case of default; 

(6) In the event of default upon an Exempt Loan, the value of the Trust Fund transferred in satisfaction of the Exempt Loan shall not exceed the amountof default. If the lender is a disqualified person, an Exempt Loan shall provide for a transfer of Trust Funds upon default only upon and to the extent of the failure of the Plan to meet the payment schedule of the Exempt Loan; 

(7) Exempt Loan payments during a Plan Year must not exceed an amount equal to: (A) the sum, over all Plan Years, of all contributions and cashdividends paid by the Employer to the Plan with respect to such Exempt Loan and earnings on such Employer contributions and cash dividends, less (B) the sum of the Exempt Loan payments in all preceding Plan Years. A separate accounting shall bemaintained for such Employer contributions, cash dividends and earnings until the Exempt Loan is repaid. 

(c) For purposes of this Section,the term “disqualified person” means a person who is a Fiduciary, a person providing services to the Plan, an Employer any of whose Employees are covered by the Plan, an employee organization any of whose members are covered by the Plan,an owner, direct or indirect, of 50% or more of the total combined voting power of all classes of voting stock or of the total value of all classes of the stock, or an officer, director, 10% or more shareholder, or a highly compensated Employee.

**ARTICLE VI**

**VALUATIONS**

6.1 VALUATION OF THE TRUST FUND 

The Administrator shall direct the Trustee, as of each Valuation Date, to determine the net worth of the assets comprising the Trust Fund as it exists on the Valuation Date. In determining such net worth, the Trusteeshall value the assets comprising the Trust Fund at their fair market value (or their contractual value in the case of a Contract or Policy) as of the Valuation Date and shall deduct all expenses for which the Trustee has not yet obtainedreimbursement from the Employer or the Trust Fund. 

 

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6.2 METHOD OF VALUATION 

Valuations must be made in good faith and based on all relevant factors for determining the fair market value of securities. In the case of a transaction between a Plan and a disqualified person, value must bedetermined as of the date of the transaction. For all other Plan purposes, value must be determined as of the most recent Valuation Date under the Plan. An independent appraisal will not in itself be a good faith determination of value in the caseof a transaction between the Plan and a disqualified person. However, in other cases, a determination of fair market value based on at least an annual appraisal independently arrived at by a person who customarily makes such appraisals and who isindependent of any party to the transaction will be deemed to be a good faith determination of value. Company Stock not readily tradeable on an established securities market shall be valued by an independent appraiser meeting requirements similar tothe requirements of the Regulations prescribed under Code Section 170(a)(1). 

**ARTICLE VII**

**DETERMINATION AND DISTRIBUTION OF BENEFITS**

7.1 DETERMINATION OF BENEFITS UPON RETIREMENT 

Every Participant may terminate employment with the Employer and retire for thepurposes hereof on the Participant’s Normal Retirement Date. However, a Participant may postpone the termination of employment with the Employer to a later date, in which event the participation of such Participant in the Plan, including theright to receive allocations pursuant to Section 4.4, shall continue until such Participant’s Late Retirement Date. Upon a Participant’s Retirement Date, or as soon thereafter as is practicable, the Trustee shall distribute, at theelection of the Participant, all amounts credited to such Participant’s Combined Account in accordance with Sections 7.5 and 7.6. 

7.2DETERMINATION OF BENEFITS UPON DEATH 

(a) Upon the death of a Participant before the Participant’s Retirement Date or other terminationof employment, all amounts credited to such Participant’s Combined Account shall become fully Vested. If elected, distribution of the Participant’s Combined Account shall commence not later than one ( 1) year after the close of the PlanYear in which such Participant’s death occurs. The Administrator shall direct the Trustee, in accordance with the provisions of Sections 7.5 and 7.6, to distribute the value of the deceased Participant’s accounts to the Participant’sBeneficiary. 

(b) Upon the death of a Former Participant, the Administrator shall direct the Trustee, in accordance with the provisions ofSections 7.5 and 7.6, to distribute any remaining Vested amounts credited to the accounts of a deceased Former Participant to such Former Participant’s Beneficiary. 

(c) Any security interest held by the Plan by reason of an outstanding loan to the Participant or Former Participant shall be taken into account in determining the amount of the death benefit. 

 

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(d) The Administrator may require such proper proof of death and such evidence of the right of any personto receive payment of the value of the account of a deceased Participant or Former Participant as the Administrator may deem desirable. The Administrator’s determination of death and of the right of any person to receive payment shall beconclusive. 

(e) The Beneficiary of the death benefit payable pursuant to this Section shall be the Participant’s spouse. Except,however, the Participant may designate a Beneficiary other than the spouse if: 

(1) the spouse has waived the right to be theParticipant’s Beneficiary, or 

(2) the Participant is legally separated or has been abandoned (within the meaning of local law) andthe Participant has a court order to such effect (and there is no “qualified domestic relations order” as defined in Code Section 414(p) which provides otherwise), or 

(3) the Participant has no spouse, or 

(4)the spouse cannot be located. 

In such event, the designation of a Beneficiary shall be made on a form satisfactory to the Administrator. AParticipant may at any time revoke a designation of a Beneficiary or change a Beneficiary by filing written (or in such other form as permitted by the Internal Revenue Service) notice of such revocation or change with the Administrator. However, theParticipant’s spouse must again consent in writing (or in such other form as permitted by the Internal Revenue Service) to any change in Beneficiary unless the original consent acknowledged that the spouse had the right to limit consent only toa specific Beneficiary and that the spouse voluntarily elected to relinquish such right. 

(f) In the event no valid designation ofBeneficiary exists, or if the Beneficiary is not alive at the time of the Participant’s death, the death benefit will be paid in the following order of priority to: 

(1) the Participant’s surviving spouse; 

(2) the Participant’s children, including adoptedchildren, per stirpes; 

(3) the Participant’s surviving parents in equal shares; or 

(4) the Participant’s estate. 

If theBeneficiary does not predecease the Participant, but dies prior to distribution of the death benefit, the death benefit will be paid to the Beneficiary’s estate. 

(g) Notwithstanding anything in this Section to the contrary, if a Participant has designated the spouse as a Beneficiary, then a divorce decree or a legal separation that relates to such spouse shall revoke theParticipant’s designation of the spouse as a Beneficiary unless the decree or a qualified domestic relations order (within the meaning of Code Section 414(p)) provides otherwise. 

 

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(h) Any consent by the Participant’s spouse to waive any rights to the death benefit must be inwriting (or in such other form as permitted by the Internal Revenue Service), must acknowledge the effect of such waiver, and be witnessed by a Plan representative or a notary public. Further, the spouse’s consent must be irrevocable and mustacknowledge the specific nonspouse Beneficiary. 

7.3. DETERMINATION OF BENEFITS IN EVENT OF DISABILITY 

In the event of a Participant’s Total and Permanent Disability prior to the Participant’s Retirement Date or other termination of employment,all amounts credited to such Participant’s Combined Account shall become fully Vested. In the event of a Participant’s Total and Permanent Disability, the Administrator, in accordance with the provisions of Sections 7.5 and 7.6, shalldirect the distribution to such Participant of all Vested amounts credited to such Participant’s Combined Account. If such Participant elects, distribution shall commence not later than one (1) year after the close of the Plan Year inwhich Total and Permanent Disability occurs. 

7.4 DETERMINATION OF BENEFITS UPON TERMINATION 

(a) If a Participant’s employment with the Employer is terminated for any reason other than death, Total and Permanent Disability or retirement, thensuch Participant shall be entitled to such benefits as are provided hereinafter pursuant to this Section 7.4. 

If a portion of aParticipant’s Account is forfeited, Company Stock allocated to the Participant’s Company Stock Account must be forfeited only after the Participant’s Other Investments Account has been depleted. If interest in more than one class ofCompany Stock has been allocated to a Participant’s Account, the Participant must be treated as forfeiting the same proportion of each such class. 

Distribution of the funds due to a Terminated Participant shall be made on the occurrence of an event which would result in the distribution had the Terminated Participant remained in the employ of the Employer (uponthe Participant’s death, Total and Permanent Disability or Normal Retirement). However, at the election of the Participant, the Administrator shall direct the Trustee that the entire Vested portion of the Terminated Participant’s CombinedAccount to be payable to such Terminated Participant as soon as administratively feasible after termination of employment. Distribution to a Participant shall not include any Company Stock acquired with the proceeds of an Exempt Loan until the closeof the Plan Year in which such loan is repaid in full. Any distribution under this paragraph shall be made in a manner which is consistent with and satisfies the provisions of Section 7.5 and 7.6, including, but not limited to, all notice andconsent requirements of Code Section 411(a)(11) and the Regulations thereunder. 

 

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If the value of a Terminated Participant’s Vested benefit does not exceed $1,000, then theAdministrator shall direct the Trustee to cause the entire Vested benefit to be paid to such Participant in a single lump sum as soon as administratively feasible after termination of employment. The value of the Participant’s interest in thePlan for such purpose is derived from Employer, Employee and Rollover contributions, including any rollover contributions (and earnings thereon) within the meaning of Code Sections 402(c), 403(a)(4), 403(b)(8), 408(d)(3)(A)(ii), and 457(e)(16). ThePlan shall not provide for a direct rollover (including an automatic rollover) for distributions from a Participant’s Roth Elective Deferral account if the amount of the distributions that are eligible rollover distributions are reasonablyexpected to total less than $200 during a year. In addition, any distribution from a Participant’s Roth Elective Deferral account are not taken into account in determining whether distributions from a Participant’s other accounts arereasonably expected to total less than $200 during a year. However, eligible rollover distributions from a Participant’s Roth Elective Deferral account are taken into account in determining whether the total amount of the Participant’saccount balances under the Plan exceed the Plan’s limits for purposes of mandatory distributions from the Plan. 

(b) The Vestedportion of any Participant’s Account attributable to contributions other than Qualified Non-Elective Contributions (including any matching contributions used to satisfy the Actual Deferral Percentage or Actual Contribution Percentage tests)shall be a percentage of the total amount credited to the Participant’s Account determined on the basis of the Participant’s number of Years of Service according to the following schedule: 

 
**Vesting Schedule** **Years of Service**  **Percentage** 1  20%2  40%3  60%4  80%5  100%
(c) Notwithstanding the above, Company Stock allocated to each Participant’s Company StockAccount pursuant to Section 4.4(e) must be forfeited only after other assets. 

(d) Notwithstanding the vesting schedule above, theVested percentage of a Participant’s Account shall not be less than the Vested percentage attained as of the later of the effective date or adoption date of this amendment and restatement, furthermore, the Vested portion of anyParticipant’s Account will never be less than the lesser of $25.00 or his/her entire Account balance, even if the application of the vesting schedule would result in a smaller Vested Account balance. 

 

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(e) Notwithstanding the vesting schedule above, upon the complete discontinuance of the Employercontributions to the Plan or upon any full or partial termination of the Plan, all amounts then credited to the account of any affected Participant shall become 100% Vested and shall not thereafter be subject to Forfeiture. 

(f) The computation of a Participant’s nonforfeitable percentage of such Participant’s interest in the Plan shall not be reduced as the resultof any direct or indirect amendment to this Plan. In the event that the Plan is amended to change or modify any vesting schedule, or if the Plan is amended in any way that directly or indirectly affects the computation of the Participant’snonforfeitable percentage, or if the Plan is deemed amended by an automatic change to a top heavy vesting schedule, then each Participant with at least three (3) Years of Service as of the expiration date of the election period may elect tohave such Participant’s nonforfeitable percentage computed under the Plan without regard to such amendment or change. If a Participant fails to make such election, then such Participant shall be subject to the new vesting schedule. TheParticipant’s election period shall commence on the adoption date of the amendment and shall end sixty (60) days after the latest of: 

(1) the adoption date of the amendment, 

(2) the effective date of the amendment, or 

(3) the date the Participant receives written notice of the amendment from the Employer or Administrator. 

7.5 DISTRIBUTION OF BENEFITS 

(a) TheAdministrator, pursuant to the election of the Participant, shall direct the Trustee to distribute to a Participant or such Participant’s Beneficiary any amount, subject to Section 7.5(b), to which the Participant is entitled under thePlan in one or more of the following methods: 

(1) One lump-sum payment. 

(2) Payments over a period certain in monthly, quarterly, semiannual, or annual installments. The period over which such payment is to be made shall notextend beyond the earlier of the Participant’s life expectancy (or the joint life expectancy of the Participant and the Participant’s “designated Beneficiary”) or the limited distribution period provided for inSection 7.5(b). 

(b) Unless the Participant elects in writing (or such other form as permitted by the Internal Revenue Service) alonger distribution period, distributions to a Participant or the Participant’s Beneficiary attributable to Company Stock shall be in substantially equal monthly, quarterly, semiannual, or annual installments over a period not longer than five(5) years. In the case of a Participant with an account balance attributable to Company Stock in excess of $800,000, the five (5) year period shall be extended one (1) additional year (but not more than five (5) additional years)for each $160,000 or fraction thereof by which such balance exceeds $800,000. The dollar limits shall be adjusted at the same time and in the same manner as provided in Code Section 415(d). 

 

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(c) Any distribution to a Participant who has a benefit which exceeds $1,000, shall require suchParticipant’s written (or in such other form as permitted by the Internal Revenue Service) consent if such distribution commences prior to the time the benefit is “immediately distributable.” A benefit is “immediatelydistributable” if any part of the benefit could be distributed to the Participant (or surviving spouse) before the Participant attains (or would have attained if not deceased) the later of the Participant’s Normal Retirement Age or age 62.With regard to this required consent: 

(1) The Participant must be informed of the right to defer receipt of the distribution. If aParticipant fails to consent, it shall be deemed an election to defer the commencement of payment of any benefit. However, any election to defer the receipt of benefits shall not apply with respect to distributions which are required underSection 7.5(f). 

(2) Notice of the rights specified under this paragraph shall be provided no less than thirty (30) days and nomore than ninety (90) days before the date the distribution commences. 

(3) Written (or such other form as permitted by the InternalRevenue Service) consent of the Participant to the distribution must not be made before the Participant receives the notice and must not be made more than ninety (90) days before the date the distribution commences. 

(4) No consent shall be valid if a significant detriment is imposed under the Plan on any Participant who does not consent to the distribution.

Any such distribution may commence less than thirty (30) days after the notice required under Regulation 1.411(a)-11(c) is given,provided that: (1) the Administrator clearly informs the Participant that the Participant has a right to a period of at least thirty (30) days after receiving the notice to consider the decision of whether or not to elect a distribution(and, if applicable, a particular distribution option), and (2) the Participant, after receiving the notice, affirmatively elects a distribution. 

(d) Notwithstanding anything herein to the contrary, the Administrator may direct that cash dividends on shares of Company Stock allocable to Participants’ Company Stock Accounts be: 

(1) Paid by the Employer directly in cash to the Participants in the Plan or their Beneficiaries. 

(2) Paid to the Plan and distributed in cash to Participants in the Plan or their Beneficiaries no later than ninety (90) days after the close ofthe Plan Year in which paid. 

 

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(3) Used to make payments on an Exempt Loan the proceeds of which were used to acquire Company Stock(whether or not allocated to Participants’ Company Stock Accounts) with respect to which the cash dividend is paid. 

(4) Allocated toParticipants’ Other Investment Accounts. 

(e) Any part of a Participant’s benefit which is retained in the Plan after theAnniversary Date on which the Participant’s participation ends will continue to be treated as a Company Stock Account or as an Other Investments Account (subject to Section 7.4(a)) as provided in Article IV. However, neither account willbe credited with any further Employer contributions or Forfeitures. 

(f) Notwithstanding any provision in the Plan to the contrary, thedistribution of a Participant’s benefits will be made in accordance with the following requirements and will otherwise comply with Code Section 401(a)(9) and the Regulations thereunder, the provisions of which are incorporated herein byreference: 

(1) A Participant’s benefits will be distributed not later than April 1st of the calendar year following the later of(i) the calendar year in which the Participant attains age 70 1/2 or (ii) the calendar year in which the Participant retires, provided, however, that this clause (ii) shall not apply in the case of a Participant who is a “five(5) percent owner” at any time during the Plan Year ending with or within the calendar year in which such owner attains age 70 1/2. Such distribution shall be equal to or greater than any required distribution. 

Alternatively, distributions to a Participant must begin no later than the applicable April 1st as determined above and must be made over a periodcertain measured by the Life Expectancy of the Participant (or joint Life Expectancies of the Participant and the Participant’s “designated Beneficiary”) in accordance with Regulations. Such distributions will be equal to or greaterthan any required distribution. 

(2) Distributions to a Participant and the Participant’s Beneficiaries will only be made inaccordance with the incidental death benefit requirements of Code Section 401(a)(9)(G) and the Regulations thereunder. 

(3) Unless theParticipant’s interest is distributed in a single sum on or before the required beginning date specified in (1) above, the minimum amount that will be distributed for each Distribution Calendar Year (including the first DistributionCalendar Year and the Distribution Calendar Year that includes the Participant’s date of death) is the lesser of: 

(i) the quotientobtained by dividing the Participant’s Account Balance by the distribution period in the Uniform Lifetime Table set forth in Regulation 1.401(a)(9)-9, using the Participant’s age as of the Participant’s birthday in the DistributionCalendar Year; or 

(ii) if the Participant’s sole “designated Beneficiary” for the Distribution Calendar Year is theParticipant’s spouse, the quotient obtained by dividing the Participant’s Account Balance by the number in the Joint and Last Survivor Table set forth in Regulation 1.401(a)(9)-9, using the Participant’s and spouse’s attainedages as of the Participant’s and spouse’s birthdays in the Distribution Calendar Year. 

 

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(g) Notwithstanding any provision in the Plan to the contrary, distributions upon the death of aParticipant will be made in accordance with the following requirements and will otherwise comply with Code Section 401(a)(9) and the Regulations thereunder, the provisions of which are incorporated be reference. 

(1) If the Participant dies on or after the date distributions begin and there is a “designated Beneficiary,” then the minimum amount that willbe distributed for each Distribution Calendar Year after the year of the Participant’s death is the quotient obtained by dividing the Participant’s Account Balance by the longer of the remaining Life Expectancy of the Participant or theremaining Life Expectancy of the Participant’s “designated Beneficiary,” determined as follows: 

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

(ii) If the Participant’s surviving spouse is the Participant’s sole “designated Beneficiary,” then the remaining Life Expectancy of the surviving spouse is calculated for each Distribution Calendar Year after the yearof the Participant’s death using the surviving spouse’s age as of the spouse’s birthday in that year. For Distribution Calendar Years after the year of the surviving spouse’s death, the remaining Life Expectancy of the survivingspouse is calculated using the age of the surviving spouse as of the spouse’s birthday in the calendar year of the spouse’s death, reduced by one for each subsequent calendar year. 

(iii) If the Participant’s surviving spouse is not the Participant’s sole “designated Beneficiary,” then the “designatedBeneficiary’s” remaining Life Expectancy is calculated using the age of the beneficiary in the year following the year of the Participant’s death, reduced by one for each subsequent year. 

However, if there is no “designated Beneficiary” as of September 30th of the year after the year of the Participant’s death, then theminimum amount that will be distributed for each Distribution Calendar Year after the year of the Participant’s death is the quotient obtained by dividing the Participant’s Account Balance by the Participant’s remaining LifeExpectancy calculated using the age of the Participant in the year of death, reduced by one for each subsequent year. 

(2) If a Participantdies before the date distributions begin, then the Participant’s entire interest will be distributed, or begin to be distributed, no later than as follows: 

(i) If the Participant’s surviving spouse is the Participant’s sole “designatedBeneficiary,” then distributions to the surviving spouse may begin by December 31st of the calendar year immediately following the calendar year in which the Participant died, or by December 31st of the calendar year in which theParticipant would have attained age 70  1/2, if later. 

 

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(ii) If the Participant’s surviving spouse is not the Participant’s sole “designatedBeneficiary,” then distributions to the “designated Beneficiary” may begin by December 31st of the calendar year immediately following the calendar year in which the Participant died. 

(iii) Participants or Beneficiaries may elect on an individual basis whether the “5-year rule” or the life expectancy rule in thisSection 7.5(g)(2) applies to distributions after the death of a Participant who has a “designated Beneficiary.” The election must be made no later than the earlier of September 30th of the calendar year in which distributionwould be required to begin under Sections 7.5(g)(2)(i) and 7.5(g)(2)(ii), or by September 30th of the calendar year which contains the fifth anniversary of the Participant’s (or, if applicable, surviving spouse’s) death. If neitherthe Participant nor Beneficiary makes an election under this paragraph, distributions will be made in accordance with the “5-year rule.” 

(iv) If there is no “designated Beneficiary” as of September 30th of the year following the year of the Participant’s death, the Participant’s entire interest will be distributed by December 31st of thecalendar year containing the fifth anniversary of the Participant’s death. 

(v) If the Participant is survived by a “designatedBeneficiary,” then the minimum amount that will be distributed for each Distribution Calendar Year after the year of the Participant’s death is the quotient obtained by dividing the Participant’s Account Balance by the remaining LifeExpectancy of the Participant’s “designated Beneficiary,” determined as provided in Section 7.5(g)(1). 

(vi) If theParticipant’s surviving spouse is the Participant’s sole “designated Beneficiary” and the surviving spouse dies after the Participant but before distributions to the surviving spouse begin, then this Section 7.5(g)(2), otherthan Section 7.5(g)(2)(i), will apply as if the surviving spouse were the Participant. 

(3) For purposes of this Section 7.5(g),the Participant’s death benefit will be distributed to the Participant’s Beneficiaries subject to the following rules: 

(i)Distributions are considered to begin on the Participant’s required beginning date. However, if Section 7.5(g)(2)(vi) applies, distributions are considered to begin on the date distributions are required to begin to the surviving spouse.

(ii) Unless the Participant’s interest is distributed in a single sum on or before the required beginning date, as of the firstDistribution Calendar Year distributions will be made in accordance with Section 7.5(g). 

(h) Except as limited by Sections 7.5 and7.6, whenever the Trustee is to make a distribution or to commence a series of payments, the distribution or series of payments may be made or begun on such date or as soon thereafter as is practicable. However, 

 

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unless a Former Participant elects in writing to defer the receipt of benefits (such election may not result in a death benefit that is more thanincidental), the payment of benefits shall begin not later than the sixtieth (60th) day after the close of the Plan Year in which the latest of the following events occurs: 

(1) the date on which the Participant attains the earlier of age 65 or the Normal Retirement Age specified herein; 

(2) the tenth (10th) anniversary of the year in which the Participant commenced participation in the Plan; or 

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

(i) If a distribution is made to a Participant who has not severed employment and who is not fully Vested in the Participant’s Account and the Participant may increase the Vested percentage in such account, then,at any relevant time the Participant’s Vested portion of the account will be equal to an amount (“X”) determined by the formula: 

**X equals P(AB plus D) – D**

For purposes of applying the formula: P is the Vested percentage at the relevant time, ABis the account balance at the relevant time, and D is the amount of distribution. 

7.6 HOW PLAN BENEFIT WILL BE DISTRIBUTED 

(a) Distribution of a Participant’s benefit may be made in cash or Company Stock or both, provided, however, that if a Participant or Beneficiary sodemands, such benefit (other than Deferred Compensation and any Income allocable to such Deferred Compensation) shall be distributed only in the form of Company Stock. Prior to making a distribution of benefits, the Administrator shall advise theParticipant or the Participant’s Beneficiary, in writing (or such other form as permitted by the Internal Revenue Service), of the right to demand that benefits be distributed solely in Company Stock. 

(b) If a Participant or Beneficiary demands that benefits, except as provided above, be distributed solely in Company Stock, distribution of aParticipant’s benefit will be made entirely in whole shares or other units of Company Stock. Any balance in a Participant’s Other Investments Account will be applied to acquire for distribution the maximum number of whole shares or otherunits of Company Stock at the then fair market value. Any fractional unit value unexpended will be distributed in cash. If Company Stock is not available for purchase by the Trustee, then the Trustee shall hold such balance until Company Stock isacquired and then make such distribution, subject to Sections 7.5(h) and 7.5(1). 

(c) The Trustee will make distribution from the Trustonly on instructions from the Administrator. 

 

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(d) Notwithstanding anything contained herein to the contrary, if the Employer charter or by-lawsrestrict ownership of substantially all shares of Company Stock to Employees and the Trust Fund, as described in Code Section 409(h)(2)(B)(ii)(I), then the Administrator shall distribute a Participant’s Combined Account entirely in cashwithout granting the Participant the right to demand distribution in shares of Company Stock. 

(e) Except as otherwise provided herein,Company Stock distributed by the Trustee may be restricted as to sale or transfer by the by-laws or articles of incorporation of the Employer, provided restrictions are applicable to all Company Stock of the same class. If a Participant is requiredto offer the sale of Company Stock to the Employer before offering to sell Company Stock to a third party, in no event may the Employer pay a price less than that offered to the distributee by another potential buyer making a bona fide offer and inno event shall the Trustee pay a price less than the fair market value of the Company Stock. 

(f) If Company Stock acquired with theproceeds of an Exempt Loan (described in Section 5.3 hereof) is available for distribution and consists of more than one class, a Participant or the Participant’s Beneficiary must receive substantially the same proportion of each suchclass. 

7.7 DISTRIBUTION FOR MINOR OR INCOMPETENT BENEFICIARY 

In the event a distribution is to be made to a minor or incompetent Beneficiary, then the Administrator may direct that such distribution be paid to the legal guardian, or if none in the case of a minor Beneficiary,to a parent of such Beneficiary or a responsible adult with whom the Beneficiary maintains residence, or to the custodian for such Beneficiary under the Uniform Gift to Minors Act or Gift to Minors Act, if such is permitted by the laws of the statein which said Beneficiary resides. Such a payment to the legal guardian, custodian or parent of a minor Beneficiary shall fully discharge the Trustee, Employer, and Plan from further liability on account thereof. 

7.8 LOCATION OF PARTICIPANT OR BENEFICIARY UNKNOWN 

In the event that all, or any portion, of the distribution payable to a Participant or Beneficiary hereunder shall, at the later of the Participant’s attainment of age 62 or Normal Retirement Age, remain unpaid solely by reason of theinability of the Administrator, after sending a registered letter, return receipt requested, to the last known address, and after further diligent effort, to ascertain the whereabouts of such Participant or Beneficiary, the amount so distributableshall be treated as a Forfeiture pursuant to the Plan. Notwithstanding the foregoing, if the value of a Participant’s Vested benefit derived from Employer and Employee contributions does not exceed $5,000, then the amount distributable may, inthe sole discretion of the Administrator, either be treated as a Forfeiture, or be paid directly to an individual retirement account described in Code Section 408(a) or individual retirement annuity described in Code Section 408(b) at thetime it is determined that the whereabouts of the Participant or the Participant’s Beneficiary cannot be ascertained. In the event a Participant or Beneficiary is located subsequent to the Forfeiture, such benefit shall be restored, first from

 

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Forfeitures, if any, and then from an additional Employer contribution if necessary. However, regardless of the preceding, a benefit which is lost by reasonof escheat under applicable state law is not treated as a Forfeiture for purposes of this Section nor as an impermissible forfeiture under the Code. 

 
7.9RIGHT OF FIRST REFUSALS 
(a) If any Participant, theParticipant’s Beneficiary or any other person to whom shares of Company Stock are distributed from the Plan (the “Selling Participant”) shall, at any time, desire to sell some or all of such shares (the “Offered Shares”) toa third party (the “Third Party”), the Selling Participant shall give written notice of such desire to the Employer and the Administrator, which notice shall contain the number of shares offered for sale, the proposed terms of the sale andthe names and addresses of both the Selling Participant and Third Party. Both the Trust Fund and the Employer shall each have the right of first refusal for a period of fourteen (14) days from the date the Selling Participant gives such writtennotice to the Employer and the Administrator (such fourteen (14) day period to run concurrently against the Trust Fund and the Employer) to acquire the Offered Shares. As between the Trust Fund and the Employer, the Trust Fund shall havepriority to acquire the shares pursuant to the right of first refusal. The selling price and terms shall be the same as offered by the Third Party. 

(b) If the Trust Fund and the Employer do not exercise their right of first refusal within the required fourteen (14) day period provided above, the Selling Participant shall have the right, at any time following the expiration of suchfourteen (14) day period, to dispose of the Offered Shares to the Third Party; provided, however, that (i) no disposition shall be made to the Third Party on terms more favorable to the Third Party than those set forth in the writtennotice delivered by the Selling Participant above, and (ii) if such disposition shall not be made to a third party on the terms offered to the Employer and the Trust Fund, the offered Shares shall again be subject to the right of first refusalset forth above. 

(c) The closing pursuant to the exercise of the right of first refusal under Section 7.9(a) above shall take placeat such place agreed upon between the Administrator and the Selling Participant, but not later than ten (10) days after the Employer or the Trust Fund shall have notified the Selling Participant of the exercise of the right of first refusal. Atsuch closing, the Selling Participant shall deliver certificates representing the Offered Shares duly endorsed in blank for transfer, or with stock powers attached duly executed in blank with all required transfer tax stamps attached or providedfor, and the Employer or the Trust Fund shall deliver the purchase price, or an appropriate portion thereof, to the Selling Participant. 

(d) Except as provided in this paragraph (d), no Company Stock acquired with the proceeds of an Exempt Loan complying with the requirements of Section 5.3 hereof shall be subject to a right of first refusal. Company Stock acquired withthe proceeds of an Exempt Loan, which is distributed to a Participant or Beneficiary, shall be subject to the right of first refusal provided for in paragraph (a) of this Section only so long as the Company Stock is not publicly traded. Theterm “publicly traded” refers to a 

 

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securities exchange registered under Section 6 of the Securities Exchange Act of 1934 (15 U.S.C. 78(f)) or that is quoted on a system sponsored by anational securities association registered under Section 15A(b) of the Securities Exchange Act (15 U.S.C. 780). In addition, in the case of Company Stock which was acquired with the proceeds of a loan described in Section 5.3, the sellingprice and other terms under the right must not be less favorable to the seller than the greater of the value of the security determined under Section 6.2, or the purchase price and other terms offered by a buyer (other than the Employer or theTrust Fund), making a good faith offer to purchase the security. The right of first refusal must lapse no later than fourteen (14) days after the security holder gives notice to the holder of the right that an offer by a third party to purchasethe security has been made. The right of first refusal shall comply with the provisions of paragraphs (a), (b) and (c) of this Section, except to the extent those provisions may conflict with the provisions of this paragraph. 

7.10 STOCK CERTIFICATE LEGEND 

Certificates for shares distributed pursuant to the Plan shall contain the following legend: 

“The shares represented by thiscertificate are transferable only upon compliance with the terms of PBSJ EMPLOYEE PROFIT SHARING AND STOCK OWNERSHIP PLAN AND TRUST AGREEMENT effective as of January 1 1985, which grants to Post, Buckley, Schuh & Jernigan, Inc. a rightof first refusal, a copy of said Plan being on file in the office of the Company.” 

7.11 PUT OPTION 

(a) If Company Stock which was not acquired with the proceeds of an Exempt Loan is distributed to a Participant and such Company Stock is not readilytradeable on an established securities market, a Participant has a right to require the Employer to repurchase the Company Stock distributed to such Participant under a fair valuation formula. Such Stock shall be subject to the provisions ofSection 7.11(c). 

(b) Company Stock which is acquired with the proceeds of an Exempt Loan and which is not publicly traded whendistributed, or if it is subject to a trading limitation when distributed, must be subject to a put option. For purposes of this paragraph, a “trading limitation” on a Company Stock is a restriction under any Federal or State securitieslaw or any regulation thereunder, or an agreement (not prohibited by Section 7.12) affecting the Company Stock which would make the Company Stock not as freely tradeable as stock not subject to such restriction. 

(c) The put option must be exercisable only by a Participant, by the Participant’s donees, or by a person (including an estate or its distributee)to whom the Company Stock passes by reason of a Participant’s death. (Under this paragraph Participant or Former Participant means a Participant or Former Participant and the beneficiaries of the Participant or Former Participant under thePlan.) The put option must permit a Participant to put the Company Stock to the Employer. Under no circumstances may the put option bind 

 

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the Plan. However, it shall grant the Plan an option to assume the rights and obligations of the Employer at the time that the put option is exercised. If itis known at the time a loan is made that Federal or State law will be violated by the Employer honoring such put option, the put option must permit the Company Stock to be put, in a manner consistent with such law, to a third party (e.g., anaffiliate of the Employer or a shareholder other than the Plan) that has substantial net worth at the time the loan is made and whose net worth is reasonably expected to remain substantial. 

The put option shall commence as of the day following the date the Company Stock is distributed to the Former Participant and end sixty (60) daysthereafter and if not exercised within such sixty (60) day period, an additional sixty (60) day option shall commence on the first day of the fifth month of the Plan Year next following the date the stock was distributed to the FormerParticipant (or such other sixty (60) day period as provided in Regulations). However, in the case of Company Stock that is publicly traded without restrictions when distributed but ceases to be so traded within either of the sixty(60) day periods described herein after distribution, the Employer must notify each holder of such Company Stock in writing on or before the tenth day after the date the Company Stock ceases to be so traded that for the remainder of theapplicable sixty (60) day period the Company Stock is subject to the put option. The number of days between the tenth day and the date on which notice is actually given, if later than the tenth day, must be added to the duration of the putoption. The notice must inform distributees of the term of the put options that they are to hold. The terms must satisfy the requirements of this paragraph. 

The put option is exercised by the holder notifying the Employer in writing that the put option is being exercised; the notice shall state the name and address of the holder and the number of shares to be sold. Theperiod during which a put option is exercisable does not include any time when a distributee is unable to exercise it because the party bound by the put option is prohibited from honoring it by applicable Federal or State law. The price at which aput option must be exercisable is the value of the Company Stock determined in accordance with Section 6.2. Payment under the put option involving a “Total Distribution” shall be paid in substantially equal monthly, quarterly,semiannual or annual installments over a period certain beginning not later than thirty (30) days after the exercise of the put option and not extending beyond five (5) years. The deferral of payment is reasonable if adequate security anda reasonable interest rate on the unpaid amounts are provided. The amount to be paid under the put option involving installment distributions must be paid not later than thirty (30) days after the exercise of the put option. Payment under a putoption must not be restricted by the provisions of a loan or any other arrangement, including the terms of the Employer articles of incorporation, unless so required by applicable state law. 

For purposes of this Section, “Total Distribution” means a distribution to a Participant or the Participant’s Beneficiary within one(1) taxable year of the entire Vested Participant’s Combined Account. 

 

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(d) An arrangement involving the Plan that creates a put option must not provide for the issuance of putoptions other than as provided under this Section. The Plan (and the Trust Fund) must not otherwise obligate itself to acquire Company Stock from a particular holder thereof at an indefinite time determined upon the happening of an event such as thedeath of the holder. 

7.12 NONTERMINABLE PROTECTIONS AND RIGHTS 

No Company Stock, except as provided in Section 7.10 and Section 7.11(b), acquired with the proceeds of a loan described in Section 5.3hereof may be subject to a put, call, or other option, or buy-sell or similar arrangement when held by and when distributed from the Trust Fund, whether or not the Plan is then an ESOP. The protections and rights granted in this Section arenonterminable, and such protections and rights shall continue to exist under the terms of this Plan so long as any Company Stock acquired with the proceeds of a loan described in Section 5.3 hereof is held by the Trust Fund or by anyParticipant or other person for whose benefit such protections and rights have been created, and neither the repayment of such loan nor the failure of the Plan to be an ESOP, nor an amendment of the Plan shall cause a termination of said protectionsand rights. 

7.13 PRE-RETIREMENT DISTRIBUTION 

After a Participant attains the age of 65 years or has made Deferred Compensation contributions to the Plan for at least five (5) years, the Participant, until he/she retires, has a continuing election to receiveall or any portion of Vested Participant’s Account Balance, but excluding any portion of the Participant’s Account Balance attributable to Deferred Compensation. A Participant who has made Deferred Compensation contributions to the Planfor less than five (5) years, until he/she retires, has a continuing election to receive all or any portion of his/her Vested Participant’s Account Balance that has been contributed to the Plan more than two (2) Plan Years prior tothe withdrawal, but excluding any portion of the Participant’s Account Balance attributable to Deferred Compensation. A Participant only may make one withdrawal pursuant to this Section 7.13 per Plan Year. 

7.14 QUALIFIED DOMESTIC RELATIONS ORDER DISTRIBUTION 

All rights and benefits, including elections, provided to a Participant in this Plan shall be subject to the rights afforded to any “alternate payee” under a “qualified domestic relations order.” Furthermore, adistribution to an “alternate payee” shall be permitted if such distribution is authorized by a “qualified domestic relations order,” even if the affected Participant has not separated from service and has not reached the“earliest retirement age” under the Plan. For the purposes of this Section, “alternate payee,” “qualified domestic relations order” and “earliest retirement age” shall have the meaning set forth under CodeSection 414(p). 

 

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**ARTICLE VIII**

**TRUSTEE**

8.1 BASIC RESPONSIBILITIES OF THE TRUSTEE 

(a) The Trustee shall have the following categories of responsibilities: 

(1) Consistent with the “funding policy and method” determined by the Employer, to invest, manage, and control the Plan assets subject, however, to the direction of the Employer or an Investment Managerappointed by the Employer or any agent of the Employer; 

(2) At the direction of the Administrator, to pay benefits required under the Planto be paid to Participants, or, in the event of their death, to their Beneficiaries; and 

(3) To maintain records of receipts anddisbursements and furnish to the Employer and/or Administrator for each Plan Year a written annual report pursuant to Section 8.8. 

(b) In the event that the Trustee shall be directed by the Employer, or an Investment Manager or other agent appointed by the Employer with respect to the investment of any or all Plan assets, the Trustee shall have no liability withrespect to the investment of such assets, but shall be responsible only to execute such investment instructions as so directed. 

(1) TheTrustee shall be entitled to rely fully on the written (or other form acceptable to the Administrator and the Trustee, including, but not limited to, voice recorded) instructions of the Employer, or any Fiduciary or nonfiduciary agent of theEmployer, in the discharge of such duties, and shall not be liable for any loss or other liability, resulting from such direction (or lack of direction) of the investment of any part of the Plan assets. 

(2) The Trustee may delegate the duty of executing such instructions to any nonfiduciary agent, which may be an affiliate of the Trustee or any Planrepresentative. 

(c) If there shall be more than one Trustee, they shall act by a majority of their number, but may authorize one or moreof them to sign papers on their behalf. 

8.2 INVESTMENT POWERS AND DUTIES OF THE TRUSTEE 

(a) The Trustee shall invest and reinvest the Trust Fund to keep the Trust Fund invested without distinction between principal and income and in suchsecurities or property, real or personal, wherever situated, as the Trustee shall deem advisable, including, but not limited to, stocks, common or preferred, open-end or close-end mutual funds, bonds and other evidences of indebtedness or ownership,and real estate or any interest therein. The Trustee shall at all times in making investments of the Trust Fund consider, among other factors, the short and long-term financial needs of the Plan on the basis of information furnished by the Employer.In making such investments, the Trustee shall not be restricted to securities or other property of the character expressly authorized by the 

 

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applicable law for trust investments; however, the Trustee shall give due regard to any limitations imposed by the Code or the Act so that at all times thePlan may qualify as an Employee Stock Ownership Plan and Trust. 

(b) The Trustee may employ a bank or trust company pursuant to the termsof its usual and customary bank agency agreement, under which the duties of such bank or trust company shall be of a custodial, clerical and record-keeping nature. 

(c) In the event the Trustee invests any part of the Trust Fund, pursuant to the directions of the Administrator, in any shares of stock issued by the Employer, and the Administrator thereafter directs the Trustee todispose of such investment, or any part thereof, under circumstances which, in the opinion of counsel for the Trustee, require registration of the securities under the Securities Act of 1933 and/or qualification of the securities under the Blue Skylaws of any state or states, then the Employer at its own expense, will take or cause to be taken any and all such action as may be necessary or appropriate to effect such registration and/or qualification. 

8.3 OTHER POWERS OF THE TRUSTEE 

TheTrustee, in addition to all powers and authorities under common law, statutory authority, including the Act, and other provisions of the Plan, shall have the following powers and authorities, to be exercised in the Trustee’s sole discretion:

(a) To purchase, or subscribe for, any securities or other property and to retain the same. In conjunction with the purchase of securities,margin accounts may be opened and maintained; 

(b) To sell, exchange, convey, transfer, grant options to purchase, or otherwise dispose ofany securities or other property held by the Trustee, by private contract or at public auction. No person dealing with the Trustee shall be bound to see to the application of the purchase money or to inquire into the validity, expediency, orpropriety of any such sale or other disposition, with or without advertisement; 

(c) To vote upon any stocks, bonds, or other securities;to give general or special proxies or powers of attorney with or without power of substitution; to exercise any conversion privileges, subscription rights or other options, and to make any payments incidental thereto; to oppose, or to consent to, orotherwise participate in, corporate reorganizations or other changes affecting corporate securities, and to delegate discretionary powers, and to pay any assessments or charges in connection therewith; and generally to exercise any of the powers ofan owner with respect to stocks, bonds, securities, or other property. However, the Trustee shall not vote proxies relating to securities for which it has not been assigned full investment management responsibilities. In those cases where anotherparty has such investment authority or discretion, the Trustee will deliver all proxies to said party who will then have full responsibility for voting those proxies; 

 

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(d) To cause any securities or other property to be registered in the Trustee’s own name or in thename of one or more of the Trustee’s nominees, in a clearing corporation, in a depository, or in entry form or in bearer form, but the books and records of the Trustee shall at all times show that all such investments are part of the TrustFund; 

(e) To borrow or raise money for the purposes of the Plan in such amount, and upon such terms and conditions, as the Trustee shalldeem advisable; and for any sum so borrowed, to issue a promissory note as Trustee, and to secure the repayment thereof by pledging all, or any part, of the Trust Fund; and no person lending money to the Trustee shall be bound to see to theapplication of the money lent or to inquire into the validity, expediency, or propriety of any borrowing; 

(f) To keep such portion of theTrust Fund in cash or cash balances as the Trustee may, from time to time, deem to be in the best interests of the Plan, without liability for interest thereon; 

(g) To accept and retain for such time as the Trustee may deem advisable any securities or other property received or acquired as Trustee hereunder, whether or not such securities or other property would normally bepurchased as investments hereunder; 

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

(i) To settle, compromise, orsubmit to arbitration any claims, debts, or damages due or owing to or from the Plan, to commence or defend suits or legal or administrative proceedings, and to represent the Plan in all suits and legal and administrative proceedings; 

(j) To employ suitable agents and counsel and to pay their reasonable expenses and compensation, and such agent or counsel may or may not be agent orcounsel for the Employer; 

(k) To apply for and procure from responsible insurance companies, to be selected by the Administrator, as aninvestment of the Trust Fund such annuity, or other Contracts (on the life of any Participant) as the Administrator shall deem proper; to exercise, at any time or from time to time, whatever rights and privileges may be granted under such annuity,or other Contracts; to collect, receive, and settle for the proceeds of all such annuity or other Contracts as and when entitled to do so under the provisions thereof; 

(l) To invest funds of the Trust in time deposits or savings accounts bearing a reasonable rate of interest or in cash or cash balances without liability for interest thereon; 

(m) To invest in Treasury Bills and other forms of United States government obligations; 

 

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(n) To invest in shares of investment companies registered under the Investment Company Act of 1940;

(o) To deposit monies in federally insured savings accounts or certificates of deposit in banks or savings and loan associations;

(p) To vote Company Stock as provided in Section 8.5; 

(q) To consent to or otherwise participate in reorganizations, recapitalizations, consolidations, mergers and similar transactions with respect to Company Stock or any other securities and to pay any assessments orcharges in connection therewith; 

(r) To deposit such Company Stock (but only if such deposit does not violate the provisions ofSection 8.5 hereof) or other securities in any voting trust, or with any protective or like committee, or with a trustee or with depositories designated thereby; 

(s) To sell or exercise any options, subscription rights and conversion privileges and to make any payments incidental thereto; 

(t) To exercise any of the powers of an owner, with respect to such Company Stock and other securities or other property comprising the Trust Fund. The Administrator, with the Trustee’s approval, may authorizethe Trustee to act on any administrative matter or class of matters with respect to which direction or instruction to the Trustee by the Administrator is called for hereunder without specific direction or other instruction from the Administrator;

(u) To sell, purchase and acquire put or call options if the options are traded on and purchased through a national securities exchangeregistered under the Securities Exchange Act of 1934, as amended, or, if the options are not traded on a national securities exchange, are guaranteed by a member firm of the New York Stock Exchange regardless of whether such options are covered; and

(v) To do all such acts and exercise all such rights and privileges, although not specifically mentioned herein, as the Trustee may deemnecessary to carry out the purposes of the Plan. 

8.4 LOANS TO PARTICIPANTS 

(a) The Trustee may, in the Trustee’s discretion, make loans to Participants and Beneficiaries under the following circumstances: (1) loansshall be made available to all Participants and Beneficiaries on a reasonably equivalent basis; (2) loans shall bear a reasonable rate of interest; (3) loans shall be adequately secured; (4) loans shall provide for periodic repaymentover a reasonable period of time; and (5) loans shall not be made available to Highly Compensated Employees in an amount greater than the amount made available to other Participants and Beneficiaries. 

(b) Loans made pursuant to this Section (when added to the outstanding balance of all other loans made by the Plan to the Participant) may, in accordancewith a uniform and nondiscriminatory policy established by the Administrator, be limited to the lesser of: 

(1) $50,000 reduced by theexcess (if any) of the highest outstanding balance of loans from the Plan to the Participant during the one year period ending on the day before the date on which such loan is made, over the outstanding balance of loans from the Plan to theParticipant on the date on which such loan was made, or 

 

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(2) one-half ( 1/2) of the present value of the non-forfeitable accrued benefit of the Participant under the Plan.

For purposes of this limit, all plans of the Employer shall be considered one plan. 

(c) Loans shall provide for level amortization with payments to be made not less frequently than quarterly over a period not to exceed five(5) years. However, loans used to acquire any dwelling unit which, within a reasonable time, is to be used (determined at the time the loan is made) as a “principal residence” of the Participant shall provide for periodic repaymentover a reasonable period of time that may exceed five (5) years. For this purpose, a “principal residence” has the same meaning as a “principal residence” under Code Section 1034. Loan repayments may be suspended underthis Plan as permitted under Code Section 414(u)(4). 

(d) Any loans granted or renewed shall be made pursuant to a Participant loanprogram. Such loan program shall be established in writing and must include, but need not be limited to, the following: 

(1) the identity ofthe person or positions authorized to administer the Participant loan program; 

(2) a procedure for applying for loans; 

(3) the basis on which loans will be approved or denied; 

(4) limitations, if any, on the types and amounts of loans offered; 

(5) the procedure under the programfor determining a reasonable rate of interest; 

(6) the types of collateral which may secure a Participant loan; and 

(7) the events constituting default and the steps that will be taken to preserve Plan assets. 

Such Participant loan program shall be contained in a separate written document which, when properly executed, is hereby incorporated by reference andmade a part of the Plan. Furthermore, such Participant loan program may be modified or amended in writing from time to time without the necessity of amending this Section. 

 

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(e) Notwithstanding anything in this Plan to the contrary, if a Participant or Beneficiary defaults on aloan made pursuant to this Section, then the loan default will be a distributable event to the extent permitted by the Code and Regulations. 

(f) Notwithstanding anything in this Section to the contrary, any loans made prior to the date this amendment and restatement is adopted shall be subject to the terms of the plan in effect at the time such loan was made. 

8.5 VOTING COMPANY STOCK 

All Participantsshall have the right to vote all Company Stock which is allocated to the Participant’s Company Stock Account. The Trustee shall follow the voting instructions of each Participant. With respect to a Participant who does not vote Company Stockwhich is allocated to the Participant’s Company Stock Account, the Trustee shall not vote such Company Stock. All Company Stock which is unallocated shall be voted by the Trustees in the same proportion that the allocated Company Stock arevoted by the Plan Participants. 

8.6 DUTIES OF THE TRUSTEE REGARDING PAYMENTS 

At the direction of the Administrator, the Trustee shall, from time to time, in accordance with the terms of the Plan, make payments out of the TrustFund. The Trustee shall not be responsible in any way for the application of such payments. 

8.7 TRUSTEE’S COMPENSATION AND EXPENSESAND TAXES 

The Trustee shall be paid such reasonable compensation as set forth in the Trustee’s fee schedule (if the Trustee has such aschedule) or as agreed upon in writing by the Employer and the Trustee. However, an individual serving as Trustee who already receives full-time pay from the Employer shall not receive compensation from the Plan. In addition, the Trustee shall bereimbursed for any reasonable expenses, including reasonable counsel fees incurred by it as Trustee. Such compensation and expenses shall be paid from the Trust Fund unless paid or advanced by the Employer. All taxes of any kind whatsoever that maybe levied or assessed under existing or future laws upon, or in respect of, the Trust Fund or the income thereof, shall be paid from the Trust Fund. 

8.8 ANNUAL REPORT OF THE TRUSTEE 

(a) Within a reasonable period of time after the later of the AnniversaryDate or receipt of the Employer contribution for each Plan Year, the Trustee, or its agent, shall furnish to the Employer and Administrator a written statement of account with respect to the Plan Year for which such contribution was made settingforth: 

(1) the net income, or loss, of the Trust Fund; 

(2) the gains, or losses, realized by the Trust Fund upon sales or other disposition of the assets; 

 

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(3) the increase, or decrease, in the value of the Trust Fund; 

(4) all payments and distributions made from the Trust Fund; and 

(5) such further information as the Trustee and/or Administrator deems appropriate. 

(b) The Employer,promptly upon its receipt of each such statement of account, shall acknowledge receipt thereof in writing and advise the Trustee and/or Administrator of its approval or disapproval thereof. Failure by the Employer to disapprove any such statement ofaccount within thirty (30) days after its receipt thereof shall be deemed an approval thereof. The approval by the Employer of any statement of account shall be binding on the Employer and the Trustee as to all matters contained in thestatement to the same extent as if the account of the Trustee had been settled by judgment or decree in an action for a judicial settlement of its account in a court of competent jurisdiction in which the Trustee, the Employer and all persons havingor claiming an interest in the Plan were parties. However, nothing contained in this Section shall deprive the Trustee of its right to have its accounts judicially settled if the Trustee so desires. 

8.9 AUDIT 

(a) If an audit of thePlan’s records shall be required by the Act and the regulations thereunder for any Plan Year, the Administrator shall direct the Trustee to engage on behalf of all Participants an independent qualified public accountant for that purpose. Suchaccountant shall, after an audit of the books and records of the Plan in accordance with generally accepted auditing standards, within a reasonable period after the close of the Plan Year, furnish to the Administrator and the Trustee a report of theaudit setting forth the accountant’s opinion as to whether any statements, schedules or lists that are required by Act Section 103 or the Secretary of Labor to be filed with the Plan’s annual report, are presented fairly in conformitywith generally accepted accounting principles applied consistently. 

(b) All auditing and accounting fees shall be an expense of and may,at the election of the Employer, be paid from the Trust Fund. 

(c) If some or all of the information necessary to enable the Administratorto comply with Act Section 103 is maintained by a bank, insurance company, or similar institution, regulated, supervised, and subject to periodic examination by a state or federal agency, then it shall transmit and certify the accuracy of thatinformation to the Administrator as provided in Act Section 103(b) within one hundred twenty (120) days after the end of the Plan Year or by such other date as may be prescribed under regulations of the Secretary of Labor. 

 

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8.10 RESIGNATION, REMOVAL AND SUCCESSION OF TRUSTEE 

(a) Unless otherwise agreed to by both the Trustee and the Employer, a Trustee may resign at any time by delivering to the Employer, at least thirty(30) days before its effective date, a written notice of resignation. 

(b) Unless otherwise agreed to by both the Trustee and theEmployer, the Employer may remove a Trustee at any time by delivering to the Trustee, at least thirty (30) days before its effective date, a written notice of such Trustee’s removal. 

(c) Upon the death, resignation, incapacity, or removal of any Trustee, a successor may be appointed by the Employer; and such successor, upon acceptingsuch appointment in writing and delivering same to the Employer, shall, without further act, become vested with all the powers and responsibilities of the predecessor as if such successor had been originally named as a Trustee herein. Until such asuccessor is appointed, the remaining Trustee or Trustees shall have full authority to act under the terms of the Plan. 

(d) The Employermay designate one or more successors prior to the death, resignation, incapacity, or removal of a Trustee. In the event a successor is so designated by the Employer and accepts such designation, the successor shall, without further act, becomevested with all the powers and responsibilities of the predecessor as if such successor had been named as Trustee herein immediately upon the death, resignation, incapacity, or removal of the predecessor. 

(e) Whenever any Trustee hereunder ceases to serve as such, the Trustee shall furnish to the Employer and Administrator a written statement of accountwith respect to the portion of the Plan Year during which the individual or entity served as Trustee. This statement shall be either (i) included as part of the annual statement of account for the Plan Year required under Section 8.8 or(ii) set forth in a special statement. Any such special statement of account should be rendered to the Employer no later than the due date of the annual statement of account for the Plan Year. The procedures set forth in Section 8.8 forthe approval by the Employer of annual statements of account shall apply to any special statement of account rendered hereunder and approval by the Employer of any such special statement in the manner provided in Section 8.8 shall have the sameeffect upon the statement as the Employer’s approval of an annual statement of account. No successor to the Trustee shall have any duty or responsibility to investigate the acts or transactions of any predecessor who has rendered all statementsof account required by Section 8.8 and this subparagraph. 

8.11 TRANSFER OF INTEREST 

Notwithstanding any other provision contained in this Plan, the Trustee at the direction of the Administrator shall transfer the Vested interest, if any,of a Participant to another trust forming part of a pension, profit sharing or stock bonus plan maintained by such Participant’s new employer and represented by said employer in writing as meeting the requirements of Code Section 401(a),provided that the trust to which such transfers are made permits the transfer to be made. 

 

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8.12 TRUSTEE INDEMNIFICATION 

The Employer agrees to indemnify and hold harmless the Trustee against any and all claims, losses, damages, expenses and liabilities the Trustee may incurin the exercise and performance of the Trustee’s power and duties hereunder, unless the same are determined to be due to gross negligence or willful misconduct. 

8.13 DIRECT ROLLOVER 

(a) Notwithstanding any provision of the Plan to the contrary that would otherwiselimit a “distributee’s” election under this Section, a “distributee” may elect, at the time and in the manner prescribed by the Administrator, to have any portion of an “eligible rollover distribution” that isequal to at least $500 paid directly to an “eligible retirement plan” specified by the “distributee” in a “direct rollover.” For purposes of the $500 limitation in the immediately preceding sentence, any amountdistributed from the Participant’s Roth Elective Deferral Account shall be treated as a separate distribution from any amount distributed from the Participant’s other Accounts in the Plan, even if the amounts are distributed at the sametime. Furthermore, “direct rollover” of a distribution from a Roth Elective Deferral Account under the Plan will only be made to another Roth Elective Deferral Account under a qualified retirement plan described in Code Section 402A(e)(1) or to a Roth IRA described in Code Section 408A, and only to the extent the “direct rollover” is permitted under the rules of Code Section 402(c) and that the recipient plan accepts such rollovers. 

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

(1) An “eligible rollover distribution” is any distribution of all or any portion of the balance to the credit of the “distributee,” except that an “eligible rollover distribution” doesnot include: any distribution that is one of a series of substantially equal periodic payments (not less frequently than annually) made for the life (or life expectancy) of the “distributee” or the joint lives (or joint life expectancies)of the “distributee” and the “distributee’s” designated beneficiary, or for a specified period of ten years or more; any distribution to the extent such distribution is required under Code Section 401(a)(9); the portionof any other distribution that is not includible in gross income (determined without regard to the exclusion for net unrealized appreciation with respect to employer securities); any hardship distribution described in CodeSection 401(k)(2)(B)(i)(IV); and any other distribution that is reasonably expected to total less than 5200 during a year. 

(2) An“eligible retirement plan” is an individual retirement account described in Code Section 408(a), an individual retirement annuity described in Code Section 408(b), (other than an endowment contract), a qualified trust (anemployees’ trust) described in Code Section 401(a) which is exempt from tax under Code Section 501(a), an annuity plan described in Code Section 403(a), an eligible deferred compensation plan described in Code Section 457(b)which is maintained by an eligible employer described in Code 

 

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Section 457(e)(1)(A), and an annuity contract described in Code Section 403(b), that accepts the “distributee’s” “eligiblerollover distribution.” However, in the case of an “eligible rollover distribution” to the surviving spouse, an “eligible retirement plan” is an individual retirement account or individual retirement annuity. 

(3) A “distributee” includes an Employee or former Employee. In addition, the Employee’s or former Employee’s surviving spouse andthe Employee’s or former Employee’s spouse or former spouse who is the alternate payee under a qualified domestic relations order, as defined in Code Section 414(p), are “distributees” with regard to the interest of thespouse or former spouse. 

(4) A “direct rollover” is a payment by the Plan to the “eligible retirement plan” specifiedby the “distributee.” 

**ARTICLE IX**

**AMENDMENT, TERMINATION AND MERGERS**

9.1 AMENDMENT 

(a) The Employer shall have the right at any time to amend this Plan subject to the limitations of this Section. However, any amendment which affects therights, duties or responsibilities of the Trustee or Administrator, may only be made with the Trustee’s or Administrator’s written consent. Any such amendment shall become effective as provided therein upon its execution. The Trustee shallnot be required to execute any such amendment unless the amendment affects the duties of the Trustee hereunder. 

(b) No amendment to thePlan shall be effective if it authorizes or permits any part of the Trust Fund (other than such part as is required to pay taxes and administration expenses) to be used for or diverted to any purpose other than for the exclusive benefit of theParticipants or their Beneficiaries or estates; or causes any reduction in the amount credited to the account of any Participant; or causes or permits any portion of the Trust Fund to revert to or become property of the Employer. 

(c) Except as permitted by Regulations (including Regulation 1.411(d)-4) or other IRS guidance, no Plan amendment or transaction having the effect of aPlan amendment (such as a merger, plan transfer or similar transaction) shall be effective if it eliminates or reduces any “Section 411(d)(6) protected benefit” or adds or modifies conditions relating to “Section 411(d)(6) protectedbenefits” which results in a further restriction on such benefit unless such “Section 411(d)(6) protected benefits” are preserved with respect to benefits accrued as of the later of the adoption date or effective date of theamendment. “Section 411(d)(6) protected benefits” are benefits described in Code Section 411(d)(6)(A), early retirement benefits and retirement-type subsidies, and optional forms of benefit. A Plan amendment that eliminates orrestricts the ability of a Participant to receive payment of the Participant’s interest in the Plan under a particular optional form of benefit will be permissible if the amendment satisfies the conditions in (1) and (2) below:

(1) The amendment provides a single-sum distribution form that is otherwise identical to the optional form of benefit eliminated orrestricted. For purposes of this condition (1), a single-sum distribution form is otherwise identical only if it is identical in all respects to the eliminated or restricted optional form of benefit (or would be identical except that it providesgreater rights to the Participant) except with respect to the timing of payments after commencement. 

 

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(2) The amendment is not effective unless the amendment provides that the amendment shall not apply toany distribution with an annuity starting date earlier than the earlier of: (i) the ninetieth (90th) day after the date the Participant receiving the distribution has been furnished a summary that reflects the amendment and that satisfiesthe Act requirements at 29 CFR 2520.104b-3 (relating to a summary of material modifications) or (ii) the first day of the second Plan Year following the Plan Year in which the amendment is adopted. 

In addition, no such amendment shall have the effect of terminating the protections and rights set forth in Section 7.12, unless such terminationshall then be permitted under the applicable provisions of the Code and Regulations; such a termination is currently expressly prohibited by Regulation 54.4975-11(a)(3)(ii). 

9.2 TERMINATION 

(a) The Employer shall havethe right at any time to terminate the Plan by delivering to the Trustee and Administrator written notice of such termination. Upon any full or partial termination, all amounts credited to the affected Participants’ Combined Accounts shallbecome 100% Vested as provided in Section 7.4 and shall not thereafter be subject to forfeiture, and all unallocated amounts, including Forfeitures, shall be allocated to the accounts of all Participants in accordance with the provisionshereof. 

(b) Upon the full termination of the Plan, the Employer shall direct the distribution of the assets of the Trust Fund toParticipants in a manner which is consistent with and satisfies the provisions of Sections 7.5 and 7.6. Except as permitted by Regulations, the termination of the Plan shall not result in the reduction of “Section 411(d)(6) protectedbenefits” in accordance with Section 9.1(c). 

9.3 MERGER, CONSOLIDATION OR TRANSFER OF ASSETS 

This Plan and Trust may be merged or consolidated with, or its assets and/or liabilities may be transferred to any other plan and trust only if thebenefits which would be received by a Participant of this Plan, in the event of a termination of the Plan immediately after such transfer, merger or consolidation, are at least equal to the benefits the Participant would have received if the Planhad terminated immediately before the transfer, merger or consolidation, and such transfer, merger or consolidation does not otherwise result in the elimination or reduction of any “Section 411(d)(6) protected benefits” in accordance withSection 9.1(c). 

 

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**ARTICLE X**

**TOP HEAVY**

10.1 TOP HEAVY PLAN REQUIREMENTS 

For any Top Heavy Plan Year, the Plan shall provide the special vesting requirements of Code Section 416(b) pursuant to Section 7.4 of the Planand the special minimum allocation requirements of Code Section 416(c) pursuant to Section 4.4 of the Plan. 

10.2 DETERMINATIONOF TOP HEAVY STATUS 

(a) This Plan shall be a Top Heavy Plan for any Plan Year in which, as of the “determination date,”(1) the Present Value of Accrued Benefits of Key Employees and (2) the sum of the Aggregate Accounts of Key Employees under this Plan and all plans of an Aggregation Group, exceeds sixty percent (60%) of the Present Value of AccruedBenefits and the Aggregate Accounts of all Key and Non-Key Employees under this Plan and all plans of an Aggregation Group. 

If anyParticipant is a Non-Key Employee for any Plan Year, but such Participant was a Key Employee for any prior Plan Year, such Participant’s Present Value of Accrued Benefit and/or Aggregate Account balance shall not be taken into account forpurposes of determining whether this Plan is a Top Heavy Plan (or whether any Aggregation Group which includes this Plan is a Top Heavy Group). In addition, if a Participant or Former Participant has not performed any services for any Employermaintaining the Plan at any time during the one-year period ending on the “determination date,” any accrued benefit for such Participant or Former Participant shall not be taken into account for the purposes of determining whether thisPlan is a Top Heavy Plan. 

(b) Aggregate Account: A Participant’s Aggregate Account as of the “determination date” is thesum of: 

(1) the Participant’s Combined Account balance as of the most recent valuation occurring within a twelve (12) monthperiod ending on the “determination date.” However, with respect to Employees not performing services for the Employer during the year ending on the “determination date,” the Participant’s Combined Account balance as of themost recent valuation occurring within a twelve (12) month period ending on the “determination date” shall not be taken into account for purposes of this Section. 

(2) an adjustment for any contributions due as of the “determination date.” Such adjustment shall be the amount of any contributions actuallymade after the Valuation Date but due on or before the “determination date,” except for the first Plan Year when such adjustment shall also reflect the amount of any contributions made after the “determination date” that areallocated as of a date in that first Plan Year. 

(3) any Plan distributions made within the Plan Year that includes the “determinationdate” or, with respect to distributions made for a reason other than separation from service, disability or death, within the five (5) preceding Plan Years. The preceding sentence 

 

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shall also apply to distributions under a terminated plan which, had it not been terminated, would have been aggregated with the Plan under CodeSection 416(g)(2)(A)(i). In the case of distributions made after the Valuation Date and prior to the “determination date,” such distributions are not included as distributions for top heavy purposes to the extent that suchdistributions are already included in the Participant’s Aggregate Account balance as of the Valuation Date. 

(4) any Employeecontributions, whether voluntary or mandatory. However, amounts attributable to tax deductible qualified voluntary employee contributions shall not be considered to be a part of the Participant’s Aggregate Account balance. 

(5) with respect to unrelated rollovers and plan-to-plan transfers (ones which are both initiated by the Employee and made from a plan maintained by oneemployer to a plan maintained by another employer), if this Plan provides the rollovers or plan-to-plan transfers, it shall always consider such rollovers or plan-to-plan transfers as a distribution for the purposes of this Section. If this Plan isthe plan accepting such rollovers or plan-to-plan transfers, it shall not consider such rollovers or plan-to-plan transfers as part of the Participant’s Aggregate Account balance. 

(6) with respect to related rollovers and plan-to-plan transfers (ones either not initiated by the Employee or made to a plan maintained by the sameemployer), if this Plan provides the rollover or plan-to-plan transfer, it shall not be counted as a distribution for purposes of this Section. If this Plan is the plan accepting such rollover or plan-to-plan transfer, it shall consider suchrollover or plan-to-plan transfer as part of the Participant’s Aggregate Account balance, irrespective of the date on which such rollover or plan-to-plan transfer is accepted. 

(7) For the purposes of determining whether two employers are to be treated as the same employer in (5) and (6) above, all employers aggregatedunder Code Section 414(b), (c), (m) and (o) are treated as the same employer. 

(c) “Aggregation Group” meanseither a Required Aggregation Group or a Permissive Aggregation Group as hereinafter determined. 

(1) Required Aggregation Group: Indetermining a Required Aggregation Group hereunder, each plan of the Employer in which a Key Employee is a participant in the Plan Year containing the Determination Date or any of the four preceding Plan Years, and each other plan of the Employerwhich enables any plan in which a Key Employee participates to meet the requirements of Code Sections 401(a)(4) or 410, will be required to be aggregated. Such group shall be known as a Required Aggregation Group. 

In the case of a Required Aggregation Group, each plan in the group will be considered a Top Heavy Plan if the Required Aggregation Group is a Top HeavyGroup. No plan in the Required Aggregation Group will be considered a Top Heavy Plan if the Required Aggregation Group is not a Top Heavy Group. 

 

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(2) Permissive Aggregation Group: The Employer may also include any other plan not required to beincluded in the Required Aggregation Group, provided the resulting group, taken as a whole, would continue to satisfy the provisions of Code Sections 401(a)(4) and 410. Such group shall be known as a Permissive Aggregation Group. 

In the case of a Permissive Aggregation Group, only a plan that is part of the Required Aggregation Group will be considered a Top Heavy Plan if thePermissive Aggregation Group is a Top Heavy Group. No plan in the Permissive Aggregation Group will be considered a Top Heavy Plan if the Permissive Aggregation Group is not a Top Heavy Group. 

(3) Only those plans of the Employer in which the Determination Dates fall within the same calendar year shall be aggregated in order to determinewhether such plans are Top Heavy Plans. 

(4) An Aggregation Group shall include any terminated plan of the Employer if it was maintainedwithin the last five (5) years ending on the Determination Date. 

(d) “Determination date” means (a) the last day ofthe preceding Plan Year, or (b) in the case of the first Plan Year, the last day of such Plan Year. 

(e) Present Value of AccruedBenefit: In the case of a defined benefit plan, the Present Value of Accrued Benefit for a Participant other than a Key Employee, shall be as determined using the single accrual method used for all plans of the Employer and Affiliated Employers, orif no such single method exists, using a method which results in benefits accruing not more rapidly than the slowest accrual rate permitted under Code Section 411(b)(1)(C). The determination of the Present Value of Accrued Benefit shall bedetermined as of the most recent valuation date that falls within or ends with the 12-month period ending on the Determination Date except as provided in Code Section 416 and the Regulations thereunder for the first and second plan years of adefined benefit plan. 

(f) “Top Heavy Group” means an Aggregation Group in which, as of the Determination Date, the sum of:

(1) the Present Value of Accrued Benefits of Key Employees under all defined benefit plans included in the group, and 

(2) the Aggregate Accounts of Key Employees under all defined contribution plans included in the group, exceeds sixty percent (60%) of a similar sumdetermined for all Participants. 

 

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**ARTICLE XI**

**MISCELLANEOUS**

11.1 PARTICIPANT’S RIGHTS 

This Plan shall not be deemed to constitute a contract between the Employer and any Participant or to be a consideration or an inducement for theemployment of any Participant or Employee. Nothing contained in this Plan shall be deemed to give any Participant or Employee the right to be retained in the service of the Employer or to interfere with the right of the Employer to discharge anyParticipant or Employee at any time regardless of the effect which such discharge shall have upon the Employee as a Participant of this Plan. 

11.2 ALIENATION 

(a) Subject to the exceptions provided below, and as otherwise permitted by the Code and Act, no benefit whichshall be payable out of the Trust Fund to any person (including a Participant or the Participant’s Beneficiary) shall be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, or charge, and anyattempt to anticipate, alienate, sell, transfer, assign, pledge, encumber, or charge the same shall be void; and no such benefit shall in any manner be liable for, or subject to, the debts, contracts, liabilities, engagements, or torts of any suchperson, nor shall it be subject to attachment or legal process for or against such person, and the same shall not be recognized by the Trustee, except to such extent as may be required by law. 

(b) Subsection (a) shall not apply to the extent a Participant or Beneficiary is indebted to the Plan by reason of a loan made pursuant toSection 8.4, as a result of a loan from the Plan. At the time a distribution is to be made to or for a Participant’s or Beneficiary’s benefit, such proportion of the amount to be distributed as shall equal such indebtedness shall bepaid to the Plan, to apply against or discharge such indebtedness. Prior to making a payment, however, the Participant or Beneficiary must be given written notice by the Administrator that such indebtedness is to be so paid in whole or part from theParticipant’s Combined Account. If the Participant or Beneficiary does not agree that the indebtedness is a valid claim against the Vested Participant’s Combined Account, the Participant or Beneficiary shall be entitled to a review of thevalidity of the claim in accordance with procedures provided in Sections 2.8 and 2.9. 

(c) Subsection (a) shall not apply to a“qualified domestic relations order” defined in Code Section 414(p), and those other domestic relations orders permitted to be so treated by the Administrator under the provisions of the Retirement Equity Act of 1984. TheAdministrator shall establish a written procedure to determine the qualified status of domestic relations orders and to administer distributions under such qualified orders. Further, to the extent provided under a “qualified domestic relationsorder,” a former spouse of a Participant shall be treated as the spouse or surviving spouse for all purposes under the Plan. 

 

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(d) Subsection (a) shall not apply to an offset to a Participant’s accrued benefit against anamount that the Participant is ordered or required to pay the Plan with respect to a judgment, order, or decree issued, or a settlement entered into in accordance with Code Sections 401(a)(13)(C) and (D). 

11.3 CONSTRUCTION OF PLAN 

This Plan andTrust shall be construed and enforced according to the Code, the Act and the laws of the State of Florida, other than its laws respecting choice of law, to the extent not pre-empted by the Act. 

11.4 GENDER AND NUMBER 

Wherever any wordsare used herein in the masculine, feminine or neuter gender, they shall be construed as though they were also used in another gender in all cases where they would so apply, and whenever any words are used herein in the singular or plural form, theyshall be construed as though they were also used in the other form in all cases where they would so apply. 

11.5 LEGAL ACTION 

In the event any claim, suit, or proceeding is brought regarding the Trust and/or Plan established hereunder to which the Trustee, the Employer or theAdministrator may be a party, and such claim, suit, or proceeding is resolved in favor of the Trustee, the Employer or the Administrator, they shall be entitled to be reimbursed from the Trust Fund for any and all costs, attorney’s fees, andother expenses pertaining thereto incurred by them for which they shall have become liable. 

11.6 PROHIBITION AGAINST DIVERSION OF FUNDS

(a) Except as provided below and otherwise specifically permitted by law, it shall be impossible by operation of the Plan or of the Trust,by termination of either, by power of revocation or amendment, by the happening of any contingency, by collateral arrangement or by any other means, for any part of the corpus or income of any Trust Fund maintained pursuant to the Plan or any fundscontributed thereto to be used for, or diverted to, purposes other than the exclusive benefit of Participants, Former Participants, or their Beneficiaries. 

(b) In the event the Employer shall make an excessive contribution under a mistake of fact pursuant to Act Section 403(c)(2)(A), the Employer may demand repayment of such excessive contribution at any time withinone (1) year following the time of payment and the Trustees shall return such amount to the Employer within the one (1) year period. Earnings of the Plan attributable to the contributions may not be returned to the Employer but any lossesattributable thereto must reduce the amount so returned. 

(c) Except for Sections 3.5, 3.6, and 4.1(e), any contribution by the Employer tothe Trust Fund is conditioned upon the deductibility of the contribution by the Employer under the Code and, to the extent any such deduction is disallowed, the Employer 

 

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may, within one (1) year following the final determination of the disallowance, whether by agreement with the Internal Revenue Service or by finaldecision of a competent jurisdiction, demand repayment of such disallowed contribution and the Trustee shall return such contribution within one (1) year following the disallowance. Earnings of the Plan attributable to the contribution may notbe returned to the Employer, but any losses attributable thereto must reduce the amount so returned. 

11.7 EMPLOYER’S ANDTRUSTEE’S PROTECTIVE CLAUSE 

The Employer, Administrator and Trustee, and their successors, shall not be responsible for the validityof any Contract issued hereunder or for the failure on the part of the insurer to make payments provided by any such Contract, or for the action of any person which may delay payment or render a Contract null and void or unenforceable in whole or inpart. 

11.8 INSURER’S PROTECTIVE CLAUSE 

Except as otherwise agreed upon in writing between the Employer and the insurer, an insurer which issues any Contracts hereunder shall not have any responsibility for the validity of this Plan or for the tax or legalaspects of this Plan. The insurer shall be protected and held harmless in acting in accordance with any written direction of the Trustee, and shall have no duty to see to the application of any funds paid to the Trustee, nor be required to questionany actions directed by the Trustee. Regardless of any provision of this Plan, the insurer shall not be required to take or permit any action or allow any benefit or privilege contrary to the terms of any Contract which it issues hereunder, or therules of the insurer. 

11.9 RECEIPT AND RELEASE FOR PAYMENTS 

Any payment to any Participant, the Participant’s legal representative, Beneficiary, or to any guardian or committee appointed for such Participant or Beneficiary in accordance with the provisions of the Plan,shall, to the extent thereof, be in full satisfaction of all claims hereunder against the Trustee and the Employer, either of whom may require such Participant, legal representative, Beneficiary, guardian or committee, as a condition precedent tosuch payment, to execute a receipt and release thereof in such form as shall be determined by the Trustee or Employer. 

11.10 ACTION BY THEEMPLOYER 

Whenever the Employer under the terms of the Plan is permitted or required to do or perform any act or matter or thing, it shallbe done and performed by a person duly authorized by its legally constituted authority. 

11.11 NAMED FIDUCIARIES AND ALLOCATION OFRESPONSIBILITY 

The “named Fiduciaries” of this Plan are (1) the Employer, (2) the Administrator and (3) theTrustee, and (4) any Investment Manager appointed hereunder. The named Fiduciaries shall have only those specific powers, duties, responsibilities, and obligations 

 

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as are specifically given them under the Plan including, but not limited to, any agreement allocating or delegating their responsibilities, the terms ofwhich arc incorporated herein by reference. In general, the Employer shall have the sole responsibility for making the contributions provided for under Section 4.1; and shall have the authority to appoint and remove the Trustee and theAdministrator; to formulate the Plan’s “funding policy and method;” and to amend or terminate, in whole or in part, the Plan. The Administrator shall have the sole responsibility for the administration of the Plan, including, but notlimited to, the items specified in Article II of the Plan, as the same may be allocated or delegated thereunder. The Trustee shall have the sole responsibility of management of the assets held under the Trust, except to the extent directed pursuantto Article II or with respect to those assets, the management of which has been assigned to an Investment Manager, who shall be solely responsible for the management of the assets assigned to it, all as specifically provided in the Plan. Each namedFiduciary warrants that any directions given, information furnished, or action taken by it shall be in accordance with the provisions of the Plan, authorizing or providing for such direction, information or action. Furthermore, each named Fiduciarymay rely upon any such direction, information or action of another named Fiduciary as being proper under the Plan, and is not required under the Plan to inquire into the propriety of any such direction, information or action. It is intended underthe Plan that each named Fiduciary shall be responsible for the proper exercise of its own powers, duties, responsibilities and obligations under the Plan as specified or allocated herein. No named Fiduciary shall guarantee the Trust Fund in anymanner against investment loss or depreciation in asset value. Any person or group may serve in more than one Fiduciary capacity. 

11.12HEADINGS 

The headings and subheadings of this Plan have been inserted for convenience of reference and are to be ignored in anyconstruction of the provisions hereof. 

11.13 APPROVAL BY INTERNAL REVENUE SERVICE 

Notwithstanding anything herein to the contrary, if, pursuant to an application for qualification filed by or on behalf of the Plan by the time prescribedby law for filing the Employer’s return for the taxable year in which the Plan is adopted, or such later date that the Secretary of the Treasury may prescribe, the Commissioner of Internal Revenue Service or the Commissioner’s delegateshould determine that the Plan does not initially qualify as a tax-exempt plan under Code Sections 401 and 501, and such determination is not contested, or if contested, is finally upheld, then if the Plan is a new plan, it shall be void ab initioand all amounts contributed to the Plan by the Employer, less expenses paid, shall be returned within one (1) year and the Plan shall terminate, and the Trustee shall be discharged from all further obligations. If the disqualification relatesto an amended plan, then the Plan shall operate as if it had not been amended. 

 

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11.14 UNIFORMITY 

All provisions of this Plan shall be interpreted and applied in a uniform, nondiscriminatory manner. In the event of any conflict between the terms of this Plan and any Contract purchased hereunder, the Planprovisions shall control. 

11.15 SECURITIES AND EXCHANGE COMMISSION APPROVAL 

The Employer may request an interpretative letter from the Securities and Exchange Commission stating that the transfers of Company Stock contemplatedhereunder do not involve transactions requiring a registration of such Company Stock under the Securities Act of 1933. In the event that a favorable interpretative letter is not obtained, the Employer reserves the right to amend the Plan and Trustretroactively to their Effective Dates in order to obtain a favorable interpretative letter or to terminate the Plan. 

**ARTICLE XII**

**PARTICIPATING EMPLOYERS**

12.1 ADOPTION BY OTHER EMPLOYERS 

Notwithstanding anything herein to the contrary, with the consent of the Employer and Trustee,any other corporation or entity, whether an affiliate or subsidiary or not, may adopt this Plan and all of the provisions hereof, and participate herein and be known as a Participating Employer, by a properly executed document evidencing said intentand will of such Participating Employer. 

12.2 REQUIREMENTS OF PARTICIPATING EMPLOYERS 

(a) Each such Participating Employer shall be required to use the same Trustee as provided in this Plan. 

(b) The Trustee may, but shall not be required to, commingle, hold and invest as one Trust Fund all contributions made by Participating Employers, aswell as all increments thereof. 

(c) Any expenses of the Plan which are to be paid by the Employer or borne by the Trust Fund shall be paidby each Participating Employer in the same proportion that the total amount standing to the credit of all Participants employed by such Employer bears to the total standing to the credit of all Participants. 

12.3 DESIGNATION OF AGENT 

EachParticipating Employer shall be deemed to be a party to this Plan; provided, however, that with respect to all of its relations with the Trustee and Administrator for the purpose of this Plan, each Participating Employer shall be deemed to havedesignated irrevocably the Employer as its agent. Unless the context of the Plan clearly indicates the contrary, the word “Employer” shall be deemed to include each Participating Employer as related to its adoption of the Plan. 

 

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12.4 EMPLOYEE TRANSFERS 

In the event an Employee is transferred between Participating Employers, accumulated service and eligibility shall be carried with the Employee involved. No such transfer shall effect a termination of employmenthereunder, and the Participating Employer to which the Employee is transferred shall thereupon become obligated hereunder with respect to such Employee in the same manner as was the Participating Employer from whom the Employee was transferred.

12.5 PARTICIPATING EMPLOYER CONTRIBUTION AND FORFEITURES 

Any contribution or Forfeiture subject to allocation during each Plan Year shall be allocated only among those Participants of the Employer or Participating Employer making the contribution or by which the forfeitingParticipant was employed. However, if the contribution is made, or the forfeiting Participant was employed, by an Affiliated Employer, in which event such contribution or Forfeiture shall be allocated among all Participants of all ParticipatingEmployers who are Affiliated Employers in accordance with the provisions of this Plan. On the basis of the information furnished by the Administrator, the Trustee may keep separate books and records concerning the affairs of each ParticipatingEmployer hereunder and as to the accounts and credits of the Employees of each Participating Employer. The Trustee may, but need not, register Contracts so as to evidence that a particular Participating Employer is the interested Employer hereunder,but in the event of an Employee transfer from one Participating Employer to another, the employing Participating Employer shall immediately notify the Trustee thereof. 

12.6 AMENDMENT 

Amendment of this Plan by the Employer at any time when there shall be a ParticipatingEmployer hereunder shall only be by the written action of each and every Participating Employer and with the consent of the Trustee where such consent is necessary in accordance with the terms of this Plan. 

12.7 DISCONTINUANCE OF PARTICIPATION 

AnyParticipating Employer shall be permitted to discontinue or revoke its participation in the Plan at any time. At the time of any such discontinuance or revocation, satisfactory evidence thereof and of any applicable conditions imposed shall bedelivered to the Trustee. The Trustee shall thereafter transfer, deliver and assign Contracts and other Trust Fund assets allocable to the Participants of such Participating Employer to such new trustee as shall have been designated by suchParticipating Employer, in the event that it has established a separate qualified retirement plan for its Employees provided, however, that no such transfer shall be made if the result is the elimination or reduction of any “Section 411(d)(6)protected benefits” as described in Section 9.1(c). If no successor is designated, the Trustee shall retain such assets for the Employees of said Participating Employer pursuant to the provisions of 

 

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Article VII hereof. In no such event shall any part of the corpus or income of the Trust as it relates tosuch Participating Employer be used for or diverted for purposes other than for the exclusive benefit of the Employees of such Participating Employer. 

12.8 ADMINISTRATOR’S AUTHORITY 

The Administrator shall have authority to make any and all necessaryrules or regulations, binding upon all Participating Employers and all Participants, to effectuate the purpose of this Article. 

 

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IN WITNESS WHEREOF, this Plan has been executed the day and year first above written. 

 
**EMPLOYER/PLAN SPONSOR:**THE PBSJ CORPORATIONBy 
 
Its: 
 
**PARTICIPATING EMPLOYERS:**POST, BUCKLEY, SCHUH & JERNIGAN, INC.By 
 
Its: 
 
PBS&J CONSTRUCTORS, INC.By 
 
Its: 
 
PBS & J CONSTRUCTION SERVICES, INC.By 
 
Its: 
 
**TRUSTEES:**
 
MICHAEL E. DOZZI
 
MARK A. RAMSEUR
 
SARA MAPLES
 
WAYNE J. OVERMAN
 
REYNALDO A. CORTEZ
 

95 

 
CHARLES D. NOSTRA
 
DONALD R. VOGT
 
WADE C. KELLY
 
SHARON M. PHILLIPS
 
CHARLES R. REDDING, III
 
BARRY J. SCHULZ
 

96 

**PBSJ EMPLOYEE PROFIT SHARING AND**

**STOCK OWNERSHIP PLAN AND TRUST**

**AGREEMENT**

Exhibit A 

Church Engineering 

The Nelson Corporation 

Coastal Environmental Services, Inc. 

Frank Coleman and Associates, Inc. 

Espey, Huston & Associates,Inc. 

Kercheval and Associates, Inc. 

J. Powell &Associates, Inc. 

Durham Technologies, Inc. 

Welker & Associates, Inc. 

TriLine Associates, Inc. 

W. Koo and Associates Structural Engineers, Inc. 

Croslin Associates, Inc. 

Land & Water Consulting, Inc. 

EIP Associates 

 

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