**BMC INDUSTRIES, INC.**

**SAVINGS AND PROFIT SHARING PLAN**

**2001 REVISION**

** **

# Third Declaration of Amendment

 

Pursuant to theretained power of amendment contained in Section 11.2 of the BMC Industries,Inc. Savings and Profit Sharing Plan - 2001 Revision, the Plan is amended inthe manner set forth below to reflect certain provisions of the Economic Growthand Tax Relief Reconciliation Act of 2001 ("EGTRRA").  This amendment is intended as good faithcompliance with the requirements of EGTRRA and is to be construed in accordancewith EGTRRA and Treasury Regulations. Except as this amendment provides otherwise, this amendment will beeffective as of January 1, 2002.  Thisamendment will supersede the provisions of the Plan to the extent thoseprovisions are inconsistent with the provisions of this amendment.

 

1)     Effective for limitation years beginningafter December 31, 2001, the aggregate annual additions that may be contributedor allocated to a Participant's account under the Plan for any Plan Year willnot exceed the lesser of:

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(a)   $40,000, as adjusted for increases in thecost-of-living under Code section 415(d), or

(b)  100 percent of the Participant's Section415 Wages for the Plan Year.  Thecompensation limit referred to in this clause (b) will not apply to any contributionfor medical benefits after separation from service (within the meaning of Codesections 401(h) or 419A(f)(2)) that is otherwise treated as an annual addition.

2)     The Eligible earnings and Testing Wagesof a Participant taken into account for any Plan Year beginning after December31, 2001, will not exceed $200,000, as adjusted for cost-of-living increases inaccordance with Code section 401(a)(17)(B). The cost-of-living adjustment in effect for a calendar year applies toEligible Earnings and Testing Wages for the determination period that beginswith or within such calendar year.

3)     The term "key employee" meansany employee or former employee (including any deceased employee) who, at anytime during the Plan Year that includes the determination date, was an officerof an Affiliated Organization having annual compensation greater than $130,000(as adjusted under Code section 416(i)(1) for Plan Years beginning afterDecember 31, 2002), a 5-percent owner of the Affiliated Organization, or a1-percent owner of the Affiliated Organization having annual compensation ofmore than $150,000.  For this purposeannual compensation means compensation within the meaning of Code section415(c)(3).  The determination of keyemployees will be made in accordance with Code section 416(i)(1) of the Codeand Treasury Regulations.

4)     In determining if the Plan is a top-heavyplan, the present values of accrued benefits and the amounts of accountbalances of an employee as of the determination date will be increased by thedistributions made with respect to the employee under the Plan and any planaggregated with the Plan under Code section 416(g)(2) during the 1-year periodending on the determination date.  Thepreceding sentence will also apply to distributions under a termination planwhich, had it not been terminated, would have been aggregated with the Planunder Code section 416(g)(2)(A)(i).  Ifa distribution is made for a reason other than separation from service, death,or disability, this provision will be applied by substituting "5-yearperiod" for "1-year period." The accrued benefits and accounts of any individual who has notperformed services for the Affiliated Organization during the 1-year periodending on the determination date will not be taken into account.

5)     If the Plan is a top-heavy plan, MatchingContributions will be taken into account for purposes of satisfying the minimumcontribution requirements of Code section 416(c)(2) and the Plan.  The preceding sentence will apply withrespect to Matching Contributions under the Plan or, if the Plan provides thatthe minimum contribution requirement will be met in another plan, such otherplan.  Matching Contributions that areused to satisfy the minimum contribution requirements will be treated asmatching contributions for purposes of the actual contribution percentage testand other requirements of Code section 401(m).

6)     Effective for distributions made afterDecember 31, 2001, for purposes of the direct rollover provisions in Section8.7, an eligible retirement plan will also mean an annuity contract describedin Code section 403(b) and an eligible plan under Code section 457(b) that ismaintained by a state, political subdivision of a state, or any agency orinstrumentality of a state or political subdivision of a state and that agreesto separately account for amounts transferred into such plan from thisPlan.  The definition of eligibleretirement plan will also apply in the case of a distribution to a survivingspouse, or to a spouse or former spouse who is the alternate payee under aqualified domestic relation order, as defined in Code section 414(p).  No amount that is distributed on account ofhardship will be an eligible rollover distribution, and the distribute may notelect to have any portion of such a distribution paid directly to an eligibleretirement plan.

7)     A portion of a distribution will not failto be an Eligible Rollover Distribution merely because the portion consists ofAfter-Tax Contributions that are not includible in gross income.  However, such portion may be transferredonly to an individual retirement account or annuity described in section 408(a)or (b) of the Code or to a qualified defined contribution plan described in section 401(a) or 403(a) of the Code thatagrees to separately account for amounts so transferred, including separatelyaccounting for the portion of such distribution that is includible in grossincome and the portion of such distribution that is not so includible.

8)     The plan will accept Rollovercontributions of Eligible Rollover Distributions made after December 31, 2001,from:

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(a)   a qualified plan described in Codesection 401(a) or 403(a), excluding after-tax employee contributions;

(b)  an annuity contract described in Codesection 403(b), excluding after-tax employee contributions; or

(c)   an eligible plan under Code section457(b) that is maintained by a state, political subdivision of a state, or anyagency or instrumentality of a state or political subdivision of a state.

9)     The Plan will not accept a participantrollover contribution of the portion of a distribution from an individualretirement account or annuity described in section 408(a) or 408(b) of the Codethat is eligible to be rolled over and would otherwise be includible in grossincome, other than such an account or annuity that is solely a conduit fordistributions from a qualified retirement plan, excluding after-tax employeecontributions.

10)For purposes of Section 8.1(a)(involuntary distribution of vested Accounts of $5,000 or less), the value of aParticipant's no forfeitable Account balances will be determined without regardto that portion of the Account balances that is attributable to a Participant'sProfit Sharing Plan Rollover Account and Rollover contributions (and earningsallocable thereto) within the meaning of sections 402(c), 403(a)(4), 403(b)(8),408(d)(3)(A)(ii), and 457(e)(16) of the Code.

11)The multiple use test described inTreasury Regulation section 1.401(m)-2 and Section 9.4 will not apply.

12)The top-heavy requirements of Codesection 416 and Section 13.3 will not apply in any year beginning afterDecember 31, 2001, in which the Plan consists solely of a cash or deferredarrangement which meets the design-based safe harbor alternative requirementsof Code section 401(k)(12) and Matching Contributions with respect to which thedesign-based safe harbor alternative requirements of Code section 401(m)(11)are met.

13)A Participant who receives a hardshipwithdrawal of 401(k) Contributions after December 31, 2001, will be prohibitedfrom making 401(k) Contributions and After-Tax Contributions under this Planand elective deferrals and after-tax employee contributions under any otherplans maintained by any Affiliated Organization for 6 months after receipt ofthe hardship withdrawal.

14)A Participant's vested Account balanceswill become distributable following the Participant's severance from employmentwith all Affiliated Organizations.  Sucha distribution will be subject to the other provisions of the Plan regarding distributions,other than provisions that require a separation from service before suchamounts may be distributed.

IN WITNESSWHEREOF, the undersigned has caused this instrument to be executed this 31stday of December, 2002.

 

                                                                                    **BMCINDUSTRIES, INC.**

 

Attest:  /s/Jon A. Dobson                                            by:  /s/Susan Linzmeier

            Secretary                                                         its: V.P.Human Resources