**BMC INDUSTRIES, INC.SAVINGS AND PROFIT SHARING PLAN**

**Fifth Declaration of Amendment**

Pursuant to the retained power of amendment contained inSection 11.2 of the BMC Industries, Inc. Savings and Profit Sharing Plan, theundersigned hereby amends the Plan by way of restatement in the manner setforth in the instrument entitled "BMC Industries, Inc. Savings and ProfitSharing Plan - 2001 Revision" (the "Plan") attached hereto.

Except as otherwise specifically provided in the Plan, theforegoing amendment is effective as of the Restatement Date as defined in thePlan.

Dated:  November 30,2001.

 
|                                                                                                                                                                                        | **BMC  INDUSTRIES, INC.**                                                                                                                                                                                                                                                                                                               |
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| Attest: /s/Jon  A. Dobson                            | By:  /s/Bradley  D. Carlson                                                                                                                                             |
|             Secretary                                                                                                                | Its:   Treasurer                                                    |

 

 

*ARTICLE 1. *Description and Purpose...................................................... 1

1.1.  *Plan Name*......................................................................................................... 1

1.2.  *Plan Description*............................................................................................... 1

1.3.  *Plan Background*.............................................................................................. 1

*ARTICLE 2. *Eligibility..................................................................................... 3

2.1.  *Eligibility Requirements*................................................................................... 3

2.2.  *Entry Date*......................................................................................................... 3

2.3.  *Special Entry Dates*.......................................................................................... 4

2.4.  *Transfer Among Participating Employers orBusiness Units*.......................... 4

2.5.  *Multiple Employment*....................................................................................... 4

2.6.  *Reentry*.............................................................................................................. 4

2.7.  *Condition of Participation*............................................................................... 4

2.8.  *Termination of Participation*........................................................................... 4

*ARTICLE 3. *Contributions............................................................................ 5

3.1.  *401(k) Contributions*........................................................................................ 5

3.2.  *After-Tax Contributions*................................................................................... 6

3.3.  *Matching Contributions*................................................................................... 7

3.4.  *Profit Sharing Contributions*........................................................................... 9

3.5.  *Rollovers*......................................................................................................... 11

3.6.  *Corrective Contributions*............................................................................... 11

*ARTICLE 4. *Accountsand Valuation.................................................... 13

4.1.  *Establishment of Accounts*.............................................................................. 13

4.2.  *Valuation and Account Adjustment*................................................................ 13

4.3.  *Allocations Do Not Create Rights*.................................................................. 13

*ARTICLE 5. *ParticipantInvestment Direction................................ 15

5.1.  *Establishment of Investment Funds*................................................................ 15

5.2.  *Contribution Investment Directions*............................................................... 15

5.3.  *Transfer Among Investment Funds*................................................................. 16

5.4.  *BMC Common Stock Fund*.............................................................................. 16

5.5.  *Investment Direction Responsibility ResidesWith Participants*................... 17

5.6.  *Beneficiaries and Alternate Payees*............................................................... 17

*ARTICLE 6. *WithdrawalsDuring Employment and Loans......... 18

6.1.  *Hardship Withdrawals from 401(k)Contribution Account*............................ 18

6.2.  *Withdrawals from 401(k) Contribution AccountAfter Attaining Age 591/2*... 19

6.3.  *Withdrawals from After-Tax ContributionAccount*....................................... 20

6.4.  *Withdrawals from Rollover Account*.............................................................. 20

6.5.  *Rules for Withdrawals*.................................................................................... 20

6.6.  *No Other In-Service Withdrawals*.................................................................. 20

6.7.  *Plan Loans*...................................................................................................... 21

*ARTICLE 7. *Vesting andForfeitures..................................................... 23

7.1.  *Vesting*............................................................................................................ 23

7.2.  *Forfeiture Upon Distribution*......................................................................... 25

7.3.  *Other Forfeitures*............................................................................................ 25

7.4.  *Application of Forfeitures*.............................................................................. 26

*ARTICLE 8. *DistributionsAfter Termination................................... 27

8.1.  *Form and Time of Distribution*...................................................................... 27

8.2.  *Beneficiary Designation*................................................................................. 29

8.3.  *Assignment, Alienation of Benefits*................................................................. 30

8.4.  *Payment in Event of Incapacity*...................................................................... 30

8.5.  *Payment Satisfies Claims*............................................................................... 31

8.6.  *Disposition if Distributee Cannot be Located*............................................... 31

8.7.  *Direct Rollovers and Transfers*...................................................................... 31

*ARTICLE 9. *ContributionLimitations................................................... 32

9.1.  *401(k) Contribution Dollar Limitation.*......................................................... 32

9.2.  *Actual Deferral Percentage Limitations*........................................................ 32

9.3.  *Actual Contribution Percentage Limitations*................................................. 35

9.4.  *Multiple Use Limitation*................................................................................. 37

9.5.  *Earnings or Losses on Excess Contributions*................................................. 39

9.6.  *Annual Additions Limitation*........................................................................... 39

9.7.  *Administrator's Discretion*............................................................................. 41

*ARTICLE 10. *ServiceRules.......................................................................... 42

10.1.  *Vesting Service*............................................................................................. 42

10.2.  *One-Year Break in Service*........................................................................... 42

10.3.  *Loss of Service*.............................................................................................. 42

10.4.  *Pre-Acquisition Service*................................................................................ 43

10.5.  *Hour of Service*............................................................................................. 43

*ARTICLE 11. *Adoption,Amendment and Termination................... 46

11.1.  *Adoption by Affiliated Organizations*........................................................... 46

11.2.  *Authority to Amend and Procedure*.............................................................. 46

11.3.  *Authority to Terminate and Procedure*........................................................ 46

11.4.  *Vesting Upon Termination, PartialTermination or Discontinuance of Contributions*..................................................................................................... 47

11.5.  *Distribution Following Termination, PartialTermination or Discontinuance of Contributions*....................................................................... 47

*ARTICLE 12. *PLANADMINISTRATION........................................................... 48

12.1.  *Administrator, Named Fiduciary*.................................................................. 48

12.2.  *Committee*..................................................................................................... 48

12.3.  *Administrative Duties*................................................................................... 50

12.4.  *Delegation*.................................................................................................... 50

12.5.  *Reports and Records*..................................................................................... 50

12.6.  *Compensation*............................................................................................... 51

12.7.  *Professional Assistance*................................................................................ 51

12.8.  *Payment of Administrative Costs*................................................................. 51

12.9.  *Indemnification*............................................................................................. 51

12.10.  *Claims Procedure*....................................................................................... 51

12.11.  *Disputes*...................................................................................................... 52

12.12.  *Correction of Errors*................................................................................... 53

12.13.  *Standards for Elections, Directions andSimilar Actions*.......................... 53

*ARTICLE 13. *Miscellaneous....................................................................... 54

13.1.  *Merger, Consolidation, Transfer of Assets*.................................................. 54

13.2.  *Limited Reversion of Fund*........................................................................... 54

13.3.  *Top-Heavy Provisions*.................................................................................. 54

13.4.  *Qualified Military Service*........................................................................... 58

13.5.  *Short Plan Years*........................................................................................... 60

*ARTICLE 14. *Construction,Interpretations AND DEFINITIONS.. 61

14.1.  *Construction and Interpretations*................................................................. 61

14.2.  *Definitions*.  ................................................................................................. 62

 

ADDENDUM SPECIAL EFFECTIVEDATES  ...................................................... A-1

**BMCINDUSTRIES, INC.SAVINGS AND PROFIT SHARING PLAN**

**2001 Revision**

  

**BMCINDUSTRIES, INC.SAVINGS AND PROFIT SHARING PLAN**

**2001 Revision**

# *ARTICLE 1.*Descriptionand Purpose

1.2.         ***Plan Description***. The Plan is a profit sharing plan providing for 401(k) Contributionspursuant to a qualified cash or deferred arrangement, After-Tax Contributions,Matching Contributions, and Profit Sharing Contributions.  The Plan is intended to qualify under Codesection 401(a) and to satisfy the requirements of Code sections 401(k) and401(m).  Although the Plan is a profitsharing plan, a Participating Employer may make contributions to the Plan eventhough it has no current or accumulated earnings or profits.

1.3.         ***Plan Background***.
> (a)            The Company adopted the established Plan effective as of April1, 1979, as an employee thrift and profit sharing plan with after-tax employeecontributions and employer matching contributions made from current oraccumulated profits.
(b)           Effective generally as of July 1, 1984, the Plan was restatedin the manner set forth in the 1984 Restatement to provide, among other things,for the investment of employer matching contributions in Company Stock.

(c)            Effective generally as of July 1, 1985, the Plan was restatedin the manner set forth in the 1985 Revision for purposes of incorporating intothe Plan a cash or deferred arrangement pursuant to Code section 401(k).

(d)           Effective generally as of January 1, 1987, the Plan wasrestated in the manner set forth in the 1987 Revision to satisfy therequirements of the Tax Reform Act of 1986.

(e)            Effective generally as of January 1, 1994, the Plan wasrestated in the manner set forth in the 1994 Revision to comply with changes inapplicable law and make certain other miscellaneous changes.

(f)             Effective as of the close of business on August 31, 1998,the BMC Industries, Inc. Profit Sharing Plan was merged into the Plan.  To reflect the merger and changes inapplicable law, including the Small Business Job Protection Act of 1996, theUruguay Round Agreements Act of 1994 and the Uniformed Services Employment andReemployment Rights Act of 1994, and to make other miscellaneous changes to thePlan, the Plan was restated effective generally as of September 1, 1998 and, inconnection therewith, the name of the Plan was changed to the BMC Industries,Inc. Savings and Profit Sharing Plan.

(g)            The Plan was amended and restated effective as of theRestatement Date for law changes as required by the Taxpayer Relief Act of1997, the Internal Revenue Restructuring and Reform Act of 1998 and theCommunity Renewal Tax Relief Act of 2000, collectively (along with changes madeto the Plan in the 1998 revision) referred to as the "GUST"amendments, and to make certain other miscellaneous changes.

# *ARTICLE 2.*Eligibility

2.1.         ***Eligibility Requirements***.> (a)            An Employee who was a Participant in the Plan the day beforethe Restatement Date shall continue as a Participant in the Plan.
(b)           An Employee who is a Qualified Employee is eligible toparticipate in the Plan
(i)             for the purposes of making 401(k) Contributions, After-Tax Contributions and arollover contribution pursuant to Section 3.5, on the day on which he or shefirst completes an Hour of Active Service; and  
(ii)            for  the purposes of having Matching Contributions and Profit Sharing Contributions  made on his or her behalf, on the last day of the first "eligibility service  period" during which he or she completes at least 1000 Hours of Service.   An Employee's "eligibility service period" is the 12-month period that starts  on the day on which he or she first completes an Hour of Active Service and,  if the Employee fails to complete at least 1000 Hours of Service during this  period, Plan Years, beginning with the Plan Year that includes the first  anniversary of the day on which he or she first completes an Hour of Active  Service.  

2.2.         ***Entry Date***.> (a)            An Employee will enter the Plan as an Active Participant forthe purposes of making 401(k) Contributions, After-Tax Contributions and arollover contribution pursuant to Section 3.5, on the day on which he or shefirst completes an Hour of Active Service as a Qualified Employee.
(b)           An Employee will enter the Plan as an Active Participant forthe purposes of having Matching Contributions made on his or her behalf on thefirst day of the calendar quarter that falls on or first follows the day onwhich he or she satisfies the applicable eligibility requirements specified inSection 2.1(b)(ii), if he or she is a Qualified Employee on the day on which heor she would otherwise enter the Plan.

(c)            An Employee will enter the Plan as an Active Participant forthe purposes of having Profit Sharing Contributions made on his or her behalf, as of the January 1 that falls on orlast precedes the day on which he orshe satisfies the applicable eligibility requirements specified in Section2.1(b)(ii), if he or she is a Qualified Employee on the last day of the eligibilityservice period.

(d)           If an Employee described in Section 2.1(b)(ii) terminatesemployment before the day on which he or she would otherwise be eligible toenter the Plan for the purposes of having Matching Contributions and ProfitSharing Contributions made on his or her behalf and again becomes an Employeeafter that day, then:
(i)             if he or she terminated employment before satisfying the eligibilityrequirements specified in Section 2.1(b)(ii), he or she will be treated as a newEmployee and his or her previous service will be disregarded in determining hisor her new eligibility service period pursuant to Section 2.1(b)(ii); or  
(ii)            if  he or she terminated employment after satisfying the eligibility requirements  specified in Section 2.1(b)(ii), he or she will enter the Plan as an Active  Participant as of the first following day on which he or she completes an Hour  of Active Service as a Qualified Employee. 
(e)            If an Employee is not a Qualified Employee on the day on whichhe or she would otherwise enter the Plan for a particular purpose, he or shewill enter the Plan as an Active Participant for that purpose on the firstfollowing day on which he or she completes an Hour of Active Service as aQualified Employee.

2.3.         ***Special Entry Dates***.*** ***NotwithstandingSections 2.1 and 2.2, in conjunction with an acquisition, the Company's Boardmay specify a special entry date for one or more purposes for individuals whobecome Qualified Employees on account of the acquisition.
2.4.         ***Transfer Among Participating Employers or Business Units***. A Participant who transfers from oneParticipating Employer or Participating Business Unit to another ParticipatingEmployer or Participating Business Unit as a Qualified Employee willparticipate in the Plan for the Plan Year during which the transfer occurs onthe basis of his or her separate Eligible Earnings for the Plan Year from eachParticipating Employer or Participating Business Unit, as the case may be.

2.5.         ***Multiple Employment***. A Participant who is simultaneously employed as a Qualified Employee withmore than one Participating Employer will participate in the Plan as aQualified Employee of all of his or her Participating Employers on the basis ofhis or her separate Eligible Earnings from each Participating Employer.

2.6.         ***Reentry***.  A Participant who ceases to be a QualifiedEmployee will resume active participation in the Plan on the first day on whichhe or she completes an Hour of Active Service as a Qualified Employee.

2.7.         ***Condition of Participation***.  Each Qualified Employee, as a condition of participation, isbound by all of the terms and conditions of the Plan and must furnish to theAdministrator such pertinent information and execute suchinstruments as the Administrator may require.

2.8.         ***Termination of Participation***.  A Participant will cease to be a Participant as of the later ofthe date on which:
> (a)            he or she ceases to be a Qualified Employee; or
(b)           all benefits, if any, to which he or she is entitled under thePlan have been forfeited or distributed.

# *ARTICLE 3.*Contributions

3.1.         ***401(k) Contributions***.> (a)            Subject to the limitations described in Article 9, for eachPlan Year an Active Participant may elect to make 401(k) Contributions for thePlan Year in accordance with the succeeding provisions of this section.  401(k) Contributions will be paid by theParticipating Employer to the Trustee as soon as administratively practicableafter the date on which the Active Participant would have received the EligibleEarnings but for his or her election pursuant to this section.
(b)           A reference in this section to an election to make 401(k) Contributionsmeans that the Participant has elected to have his or her Eligible Earningsreduced in consideration of the Participating Employer's obligation to make401(k) Contributions in the same amount on the Participant's behalf.  Except as provided in Subsection (c), aParticipant's 401(k) Contributions will be made in accordance with the rules inthis subsection.  
(i)             An Active Participant may elect to make 401(k) Contributionsin any one percent increment from one percent to a maximum percentage specifiedin Plan Rules and the elected percentage will automatically apply to the ActiveParticipant's Eligible Earnings as adjusted from time to time.  Plan Rules may specify a maximum percentagefor Active Participants who are Highly Compensated Employees that is less thanthe maximum percentage specified for Active Participants who are not HighlyCompensated Employees.  No 401(k)Contributions will be made on behalf of a Participant with respect to a periodduring which he or she is not an Active Participant.      
(ii)        An Active Participant's election to commence 401(k)Contributions pursuant to clause (i) will become effective at the time andmanner specified in Plan Rules after the Administrator receives a complete andaccurate election.(iii)       AnActive Participant may elect to change the percentage rate of his or her 401(k)Contributions.  The election will becomeeffective at the time and manner specified in Plan Rules after theAdministrator receives a complete and accurate election of such change.(iv)       401(k) Contributions for an Active Participant who makes ahardship withdrawal pursuant to Section 6.1 will be automaticallysuspended for the 12-month period beginning on the date of the withdrawaldistribution.  Following the suspensionperiod the Active Participant may again elect to make 401(k) Contributions inaccordance with clause (iii). 
(c)            Only Eligible Earnings payable after an Active Participant'scomplete and accurate election has been received and become effective will bereduced pursuant to the election.  Ifany election is not processed on a timely basis, or if, for any reason, anActive Participant's Eligible Earnings are not reduced in accordance with theParticipant's election, no retroactive adjustments will be made to take intoaccount the effect of any such delay or failure.  Plan Rules, however, may permit an Active Participant to elect tomake 401(k) Contributions from his or her Eligible Earnings payable during anyremaining portion of the Plan Year during which the delay or failure occurredat more than the otherwise applicable maximum percentage to adjust for theeffect of the delay or failure so long as the total reductions for the PlanYear do not exceed the applicable maximum percentage or the limitationsdescribed in Article 9.

3.2.         ***After-Tax Contributions***.> (a)            Subject to the limitations described in Article 9, an ActiveParticipant may make After-Tax Contributions in accordance with thissection.  After-Tax Contributions willbe paid to the Trustee as soon as administratively practicable after the dateon which the Active Participant would have received the Eligible Earnings butfor his or her election pursuant to this section. 
(b)           Except as provided in Subsection (c), After-Tax Contributionswill be made in accordance with the rules in this subsection. 
(i)             An Active Participant may elect to contribute any one percent increment of hisor her Eligible Earnings from one percent to a maximum percentage specified inPlan Rules and the elected percentage will automatically apply to the ActiveParticipant's Eligible Earnings as adjusted from time to time.  Plan Rulesmay specify a maximum percentage applicable to After-Tax Contributions, anaggregate maximum percentage applicable to After-Tax Contributions and 401(k)Contributions or both.  In addition, Plan Rules may specify a lower maximumpercentage (which, for After-Tax Contributions, may be zero) for ActiveParticipants who are Highly Compensated Employees.  Neither deductions fromEligible Earnings nor After-Tax Contributions will be made on behalf of aParticipant with respect to a period during which he or she is not an ActiveParticipant.  
(ii)            An  Active Participant's election to have After-Tax Contributions commence will  become effective at the time and manner specified in Plan Rules after the date  on which the Administrator receives a complete and accurate election. 

(iii)          An ActiveParticipant may elect to change the percentage rate of his or her After-TaxContributions.  The election will become effective at the time and mannerspecified in Plan Rules after the Administrator receives a complete and accurateelection of such change. 

(iv)          After-TaxContributions by an Active Participant who makes a hardship withdrawal underSection 6.1 will be automatically suspended for the 12-month period beginning onthe date of the withdrawal distribution.  Following the suspension period,the Active Participant may again elect to have After-Tax Contributions commencein accordance with clause (ii). 
(c)            Elections pursuant to this section and After-Tax Contributionsmust be made in accordance with and are subject to Plan Rules.  Only Eligible Earnings payable after anActive Participant's complete and accurate election has been received andbecome effective will be subject to deduction pursuant to the election.  If any election is not processed on a timelybasis, or if, for any reason, an Active Participant's After-Tax Contributionsare not made in accordance with the Participant's election, no retroactiveadjustments will be made to take into account the effect of any such delay orfailure.  Plan Rules, however, maypermit an Active Participant to make After-Tax Contributions during anyremaining portion of the Plan Year during which the delay or failure occurredat more than the otherwise applicable maximum percentage to adjust for theeffect of the delay or failure so long as the After-Tax Contributions for thePlan Year do not exceed the applicable maximum percentage or the limitationsdescribed in Article 9.

3.3.         ***Matching Contributions***.> (a)            Subject to Subsection (d) and the limitations described inArticle 9, the Participating Employer of an eligible Active Participant willmake a Matching Contribution on behalf of the Active Participant for a calendarquarter in an amount, if any, equal to 25 percent of the lesser of (i) theParticipant's 401(k) Contributions for the calendar quarter and (ii) sixpercent of the Participant's Eligible Earnings for the calendar quarter.  To be eligible to share in the ParticipatingEmployer's Matching Contribution for a given calendar quarter, a Participantmust have, on or before the last day of the calendar quarter, entered the Planas a Participant for the purposes of having Matching Contributions made on hisor her behalf, received Eligible Earnings for the calendar quarter from theParticipating Employer and is a Participant who either:(i)             is a Qualified Employee who is either on active status or paidleave of absence on the last day of the calendar quarter or    
(ii)           terminated employment during the calendar quarter 
(1)           at or after his or her Normal Retirement Date
(2)           on account of his or her death 

(3)           on account of his or her becoming Disabled or

(4)           following his or her attainment of age 60 if the sum of his orher age and years of Vesting Service equals or exceeds 65;

provided, that this conditionwill be applied only with respect to a Participant, such sole application beingmade for the calendar quarter during which this clause (ii) first applies andthe condition under clause (i) is not satisfied.
> (b)           Subject to Subsection (d) and the limitations described inArticle 9, the Participating Employer of an eligible Active Participant willmake a Matching Contribution on behalf of the Active Participant for a PlanYear in an amount, if any, equal to a percentage, determined by theParticipating Employer's Board, of the lesser of (i) the Participant's 401(k)Contributions for the Plan Year and (ii) six percent of the Participant'sEligible Earnings for the Plan Year; provided that the percentage may bedifferent for eligible Active Participants employed in different ParticipatingBusiness Units of the Participating Employer based on annual profit performanceof each Participating Business Unit, as determined by the ParticipatingEmployer's Board.  To be eligible toshare in the Participating Employer's Matching Contribution for a given PlanYear, a Participant must have, on or before the last day of the Plan Year,entered the Plan as a Participant for the purposes of having MatchingContributions made on his or her behalf, received Eligible Earnings for thePlan Year from the Participating Employer and is a Participant who:(i)             is a Qualified Employee who is either on active status or paid leave of absenceon the last day of the Plan Year or    
(ii)               terminated employment during the Plan Year 
(1)           at or after his or her Normal Retirement Date
(2)           on account of his or her death 

(3)           on account of his or her becoming Disabled or

(4)           following his or her attainment of age 60 if the sum of his orher age and years of Vesting Service equals or exceeds 65;

provided, that this conditionwill be applied only with respect to a Participant, such sole application beingmade for the Plan Year during which this clause (ii) first applies and thecondition under clause (i) is not satisfied.
> (c)            A Participating Employer's Matching Contributions for a PlanYear will be paid to the Trustee on such date or dates during or following suchPlan Year as the Participating Employer may elect but in no case more than 12months after the end of the Plan Year.  
(d)           No Matching Contribution will be made with respect to anyportion of a Participant's 401(k) Contributions returned to the Participantpursuant to Article 9.  For thispurpose, 401(k) Contributions with respect to which no Matching Contributionsare made for a Plan Year will be deemed to be the first such contributions returnedto the Participant.  If theAdministrator determines that Matching Contributions that have been added to aParticipant's Account should not have been added by reason of this subsection,the contributions, increased by Fund earnings or decreased by Fund lossesattributable to the contributions, as determined under Section 9.5, will besubtracted from the Account as soon as administratively practicable after thedetermination is made and will be applied to satisfy the contributionobligations of the Participating Employer that made the excess contributionsfor the Plan Year for which the excess contributions were made.  If, because of the passage of time, theexcess cannot be applied in this way, the excess will be allocated, in thediscretion of the Administrator:
(i)             among the Matching Contribution Accounts of all Participants who made 401(k)Contributions for the Plan Year as Qualified Employees of the ParticipatingEmployer in proportion to such 401(k) Contributions up to six percent ofEligible Earnings; or  
(ii)            as a  corrective contribution pursuant to Section 3.6. 

3.4.         ***Profit Sharing Contributions***.> (a)            Each Participating Employer will make a Profit SharingContribution for a Plan Year on behalf of Participants who have satisfied theeligibility conditions specified in Subsection (b) for a Plan Year in an amountequal to the sum of:(i)             three percent of the aggregate Eligible Earnings for the Plan Year of allParticipants eligible to share in the contribution for the Plan Year plus  
(ii)            an  additional amount, if any, separately determined by the Participating  Employer's Board for each of its Participating Business Units based on the  annual profit performance of each Participating Business Unit. 
(b)           To be eligible to share in the Participating Employer's ProfitSharing Contribution, for a particular Plan Year, a Participant must have, onor before the last day of the Plan Year, entered the Plan as a Participant forthe purposes of having Profit Sharing Contributions made on his or her behalf,received Eligible Earnings for the Plan Year from the Participating Employerand either:(i)             completed at least 1000 Hours of Service during the Plan Year and been employedwith an Affiliated Organization as a Qualified Employee who is either on activestatus or paid leave of absence on the last day of the Plan Year or    
(ii)               terminated employment during the Plan Year 
(1)           at or after his or her Normal Retirement Date
(2)           on account of his or her death 

(3)           on account of his or her becoming Disabled or

(4)           following his or her attainment of age 60 if the sum of his orher age and years of Vesting Service equals or exceeds 65;

provided, that this conditionwill be applied only with respect to a Participant, such sole application beingmade for the Plan Year during which this clause (ii) first applies and thecondition under clause (i) is not satisfied.
> (c)            Subject to the limitations described in Article 9, aParticipating Employer's Profit Sharing Contribution for a Plan Year will beallocated among the Profit Sharing Contribution Accounts of Participants whohave satisfied the eligibility conditions under Subsection (b) for the PlanYear as follows:(i)             The Participating Employer's contribution described inSubsection (a)(i) will be allocated to each eligible Participant in the sameproportion that his or her Eligible Earnings for the Plan Year bears to theaggregate Eligible Earnings for the Plan Year of all Participants eligible toshare in the Participating Employer's contribution.    
(ii)           The Participating Employer's contribution described inSubsection (a)(ii) with respect to a given Participating Business Unit will beallocated to each eligible Participant who received Eligible Earnings for thePlan Year with respect to services for the Participating Business Unit (otherthan administrative services with respect to which he or she is included in theCorporate Participating Business Unit unless the contribution relates to theCorporate Participating Business Unit) as follows: 
(1)           An amount equal to three percent of his or her Excess EligibleEarnings for the Plan Year.  If,however, the contribution is less than three percent of the aggregate ExcessEligible Earnings of all Participants eligible to share in the contributionwith respect to the Participating Business Unit, the contribution will beallocated to each such eligible Participant in the same proportion that his orher Excess Eligible Earnings for the Plan Year bears to the aggregate ExcessEligible Earnings for the Plan Year of all Participants eligible to share inthe contribution with respect to the Participating Business Unit.
(2)           To the extent the contribution is not exhausted after it hasbeen allocated under clause (1), each eligible Participant's share of theremainder will be an amount equal to two and seven-tenths percent of the sum ofhis or her Eligible Earnings plus his or her Excess Eligible Earnings for thePlan Year.  If, however, thecontribution is less than two and seven-tenths percent of the sum of theaggregate Eligible Earnings plus the aggregate Excess Eligible Earnings of allParticipants eligible to share in the contribution with respect to theParticipating Business Unit, the contribution will be allocated to each sucheligible Participant in the same proportion that the sum of his or her EligibleEarnings plus his or her Excess Eligible Earnings for the Plan Year bears tothe sum of the aggregate Eligible Earnings plus the aggregate Excess Eligible Earnings for the Plan Yearof all such eligible Participants.

(3)           To the extent the contribution is not exhausted after it hasbeen allocated pursuant to clauses (1) and (2), the balance, if any, will beallocated to each Participant eligible to share in the contribution withrespect to the Participating Business Unit in the same proportion that his orher Eligible Earnings for the Plan Year bears to the aggregate EligibleEarnings for the Plan Year of all such eligible Participants. 
(d)           A Participating Employer's Profit Sharing Contribution for aPlan Year, if any, will be paid to the Trustee on such date or dates during orfollowing such Plan Year as the Participating Employer may elect but in no casemore than 12 months after the end of the Plan Year.

3.5.         ***Rollovers***.> (a)            With the prior consent of the Administrator, an ActiveParticipant may contribute to the Trust, in a direct rollover pursuant to Codesection 401(a)(31) or within 60 days of receipt:(i)             an amount paid or distributed out of an individual retirement account to whichthe only contributions have been one or more Eligible Rollover Distributions; or  
(ii)            an  Eligible Rollover Distribution from such a qualified plan. 
(b)           Any contribution to the Trust pursuant to this section must bemade in cash and will be added to the Participant's Rollover Account.

3.6.         ***Corrective Contributions***.> (a)            For any Plan Year, a Participating Employer may, but is notrequired to, contribute to the Matching Contribution Accounts or Profit SharingContribution Accounts, or both, of Active Participants who are not HighlyCompensated Employees, or any group of such Participants identified by theAdministrator, such amounts as the Participating Employer deems advisable toassist the Plan in satisfying the requirements of Section 9.2, 9.3 or 9.4, or any other requirement underthe Code or Treasury Regulations, for the Plan Year.
  
(b)           Contributions pursuant to this section will be allocated in accordance with one or more of the following clauses, asdetermined by the Administrator.(i)             Contributions are allocated among the Matching ContributionAccounts of the Participants eligible to share in the allocation who made401(k) Contributions for the Plan Year in proportion to such 401(k)Contributions up to six percent of the Participant's Eligible Earnings for thePlan Year.
 (ii)           Contributions are allocated among the Profit SharingContribution Accounts of the Participants eligible to share in the allocationin proportion to their respective Eligible Earnings from the ParticipatingEmployer for the Plan Year.

(iii)         Contributions are allocated among the Matching ContributionAccounts of Participants eligible to share in the allocation who made 401(k)Contributions for the Plan Year or allocated among the Profit SharingContribution Accounts of the Participants eligible to share in the allocationfor the Plan Year, or both, by starting with the eligible Participant with thelowest Eligible Earnings for the Plan Year and allocating to that Participantup to the maximum amount permitted by Section 9.6 and continuing successivelywith the eligible Participant(s) with the next lowest Eligible Earnings for thePlan Year until the amount to be allocated pursuant to this clause (ii) has beenfully allocated. 

(iv)          Contributions areallocated among the Matching Contribution Accounts of the Participants eligibleto share in the allocation who made 401(k) Contributions for the Plan Year orallocated among the Profit Sharing Contribution Accounts of the Participantseligible to share in the allocation for the Plan Year, or both, on a per capitabasis. 

Contributions pursuant to this section which are used tosatisfy the requirements of Section 9.2 will be added to a separate subaccountwith respect to which gains, losses, withdrawals and other credits or chargesare separately allocated on a reasonable and consistent basis pursuant toSection 4.2. 

# *ARTICLE 4.*Accounts and Valuation

4.1.         ***Establishment of Accounts***.> (a)            For each Participant, the following Accounts will beestablished and maintained: (i)             A 401(k) Contribution Account, to which there will be added any 401(k)Contributions made on the Participant's behalf;  
(ii)            An  After-Tax Contribution Account, which will include the balance of his or her  supplemental contribution account and employee basic contribution account  under prior provisions of the Plan and to which there will be added any  After-Tax Contributions made by the Participant; (iii)           A Matching Contribution Account, which will include the balance of his or her  employer contribution account under prior provisions of the Plan and to which  there will be added any Matching Contributions made on the Participant's  behalf; 

(iv)          A Profit SharingContribution Account, which will include the balance of his or her profitsharing account under the BMC Industries, Inc. Profit Sharing Plan and to whichthere will be added any Profit Sharing Contributions made on the Participant'sbehalf; 

(v)            ARollover Account, to which there will be added any rollover contribution made bythe Participant pursuant to Section 3.5; and 

(vi)          A Profit SharingPlan Rollover Account, which will consist solely of the balance of his or herrollover account under the BMC Industries, Inc. Profit Sharing Plan. 
(b)           One or more additional accounts or subaccounts may beestablished and maintained for any Participant or group of similarly situatedParticipants in connection with the merger of another plan into the Plan, inwhich case provisions of the Plan applicable solely to such accounts will beset forth on an exhibit to the Plan in accordance with Section 14.1(f).

4.2.         ***Valuation and Account Adjustment***.  At such intervals as specified in PlanRules, but at least annually, each Participant's Accounts within eachinvestment fund established pursuant to Section 5.1 will be adjusted, in amanner determined by the Administrator to be uniform and equitable with respectto the Accounts being adjusted at the time in question, for income, expense,gains and losses of the investment fund, as well as contributions, withdrawals,loans, loan repayments, loan offsets, distributions and other activity, sincethe last prior adjustment.
 
4.3.         ***Allocations Do Not Create Rights***.  The fact that allocations are made andcredited to the Accounts of a Participant does not vest in the Participant anyright, title or interest in or toanyportion of the Fund except at the time or times and upon the terms andconditions expressly set forth in the Plan. Notwithstanding any allocation or addition to the Account of anyParticipant, the issuance of any statement to the Participant or a Beneficiaryof a deceased Participant or the distribution of all or a portion of anyAccount balance, the Administrator may direct the Account to be adjusted to theextent necessary to correct any error in the Account, whether caused bymisapplication of any provision of the Plan or otherwise, and may recover fromthe Participant or Beneficiary the amount of any excess distribution.

# *ARTICLE 5.*Participant Investment Direction

5.1.         ***Establishment of Investment Funds***.> 
(a)            In order to allow each Participant to determine the manner inwhich his or her Accounts will be invested, the Trustee will maintain, withinthe Trust, three or more separate investment funds of such nature andpossessing such characteristics as the Committee may specify from time totime.  Each Participant's Accounts willbe invested in the investment funds in the proportions directed by theParticipant in accordance with the procedures set forth in Sections 5.2 and5.3.  The Committee may, from time totime, direct the Trustee to establish additional investment funds or toterminate any existing investment fund.

 

(b)           In addition to the investment funds maintained pursuant toSubsection (a), the Trustee will maintain, within the Trust, the BMC CommonStock Fund, which will be invested in shares of Company Stock except for suchamounts of cash as the Committee determines to be necessary to satisfyshort-term liquidity requirements and cash held pending acquisition of sharesof Company Stock.

 
(c)            Notwithstanding any other provision of the Plan to thecontrary, the Committee may direct the Trustee to suspend Participantinvestment activity (including such activity in connection with thewithdrawals, loans and distributions) in any or all investment funds, or imposespecial rules or restrictions of uniform application, for a period determinedby the Committee to be necessary in connection with:(i)             the establishment or termination of any investment fund;  
(ii)           the receipt by the Trustee from, or transfer by the Trusteeto, another trust of account balances in connection with an acquisition ordivestiture or otherwise;

(iii)         a change of Trustee, investment manager or recordkeeper; or 

(iv)          such othercircumstances determined by the Committee as making such suspension or specialrules or restrictions necessary or appropriate. 

5.2.         ***Contribution Investment Directions***.> (a)            In conjunction with his or her enrollment in the Plan, aParticipant must direct the manner in which contributions to his or herAccounts will be invested among the investment funds maintained pursuant toSection 5.1.  Such a direction must bemade in accordance with and is subject to Plan Rules.  To the extent a Participant fails to direct Account investments,the Accounts will be invested in the manner specified in Plan Rules. 
(b)           A Participant may direct a change in the manner in whichfuture contributions credited to his or her Accounts will be invested among theinvestment funds maintained pursuant to Section 5.1.  Such a direction must be made in accordance with and is subjectto Plan Rules and will become effective at the time and manner specified inPlan Rules and in accordance with rules and procedures of the investment fundafter the Trustee receives a complete and accurate direction.
(c)            Plan Rules will include procedures pursuant to whichParticipants are provided with the opportunity to obtain written confirmationof investment directions made pursuant to this section.

5.3.         ***Transfer Among Investment Funds***.> (a)            A Participant may direct the transfer of his or her Accountsamong the investment funds maintained pursuant to Section 5.1.  Such a direction must be made in accordancewith and is subject to Plan Rules and will become effective at the time andmanner specified in Plan Rules and in accordance with rules and procedures ofthe investment fund after the Trustee receives a complete and accuratedirection. 
(b)           Plan Rules will include procedures pursuant to whichParticipants are provided with the opportunity to obtain written confirmationof investment directions made pursuant to this section.
(c)            Plan Rules may limit and restrict transfers into and out ofspecific investment funds.

5.4.         ***BMC Common Stock Fund***.> (a)            Subject to Subsection (b), all amounts credited to aParticipant's Matching Contribution Account will be invested only in the BMCCommon Stock Fund and no amounts credited to any of a Participant's otherAccounts may be invested in the BMC Common Stock Fund.(b)           Notwithstanding Subsection (a) -(i)             Not more than once each calendar quarter, a Participant whohas attained age 55 may elect to transfer all or any portion of his or herMatching Contribution Account from the BMC Common Stock Fund to one or more ofthe investment funds maintained pursuant to Section 5.1 other than the BMCCommon Stock Fund.  The election must bemade in accordance with and is subject to Plan Rules and will be effective assoon as administratively practicable after it is received by the Administratoror the Administrator's designate.  AllMatching Contributions credited to the Participant's Matching ContributionAccount after the effective date of the direction will continue to be investedpursuant to Subsection (a).  
(ii)           Not more than once each calendar quarter, a Participant who isan Employee and is not eligible to make directions pursuant to Subsection(b)(i) may elect to transfer up to 25 percent of his or her MatchingContribution Account from the BMC Common Stock Fund to one or more of theinvestment funds maintained pursuant to Section 5.1 other than the BMC CommonStock Fund.  A Participant may only makean election pursuant to this Subsection (b)(ii) if the portion of the  Participant's Matching Contribution Accountinvested in the BMC Common Stock Fund equals or exceeds 20 percent of theaggregate balance of the Participant's 401(k) Contribution Account, MatchingContribution Account, After-Tax Contribution Account and Rollover Account.  The election must be made in accordance withand is subject to Plan Rules and will be effective as soon as administrativelypracticable after it is received by the Administrator or the Administrator'sdesignate.  All Matching Contributionscredited to the Participant's Matching Contribution Account after the effectivedate of such direction will continue to be invested pursuant to Subsection (a).

5.5.         ***Investment Direction Responsibility Resides With Participants***.  The Plan is intended to constitute a plandescribed in ERISA section 404(c). Accordingly, neither the Administrator, the Committee, the Trustee northe Participating Employers have any authority, discretion, responsibility orliability with respect to a Participant's selection of the investment funds inwhich his or her Accounts will be invested, the entire authority,discretion and
responsibility for, and any results attributable to, theselection being that of the Participant.
 
5.6.         ***Beneficiaries and Alternate Payees***.  Solely for purposes of this article, theterm "Participant" includes the Beneficiary of a deceased Participantand an alternate payee under a qualified domestic relations order within themeaning of Code section 414(p) unless otherwise provided in such order, butonly after:> (a)            the Administrator has determined the identity of theBeneficiary and the amount of the Account balance to which he or she isentitled in the case of a Beneficiary of a deceased Participant; or
 
(b)           the Administrator has, in accordance with Plan Rules, made afinal determination that the order is a qualified domestic relations order andall rights to contest such determination in a court of competent jurisdictionwithin the time prescribed by Plan Rules have expired or been exhausted in thecase of an alternate payee.

# *ARTICLE 6.*Withdrawals During Employment and Loans

6.1.         ***Hardship Withdrawals from 401(k) Contribution Account***.> (a)            Subject to the provisions of Section 6.5, a Participant who isan Employee may make a hardship withdrawal from his or her 401(k) ContributionAccount in accordance with this section. A hardship withdrawal will be permitted only if the Administratordetermines that the withdrawal is made on account of an immediate and heavyfinancial need of the Participant and is necessary to satisfy such financialneed.  
 
(b)           A withdrawal will be deemed to be made on account of animmediate and heavy financial need only if it is determined by theAdministrator to be on account of:(i)             expenses for medical care, described in Code section 213(d), incurred or to beincurred by the Participant, the Participant's spouse or the Participant'sdependent (as defined in Code section 152 that are not otherwise reimbursable);  
(ii)             costs directly related to the purchase (excluding mortgage payments) of a  principal residence of the Participant; 

(iii)          payment oftuition, related educational fees and room and board expenses for the next 12months of post-secondary education for the Participant or his or her spouse,child or other dependent (as defined in Code section 152); 

(iv)          payments necessaryto prevent the eviction of the Participant from his or her principal residenceor foreclosure on the mortgage on the Participant's principal residence; 

(v)           expenses incurred or to be incurred by the Participant that are directly relatedto the partial or total destruction of a principal residence of the Participantthrough an act of God that are not otherwise reimbursable; 

(vi)          expenses incurredor to be incurred by the Participant that are directly related to and theprincipal purpose of which is the legal adoption of a child by the Participantthat are not otherwise reimbursable; or 

(vii)        loss of income due to layoffof the Participant or his or her spouse. 
(c)            A withdrawal will be deemed to be necessary to satisfy theimmediate and heavy financial need of the Participant only if the Administratordetermines that each of the requirements in this subsection is satisfied.(i)             The withdrawal is not more than the sum of the amount of the immediate and heavyfinancial need of the Participant plus an amount to pay any federal, state orlocal taxes or penalties that the Participant will incur in connection with thewithdrawal or to satisfy withholding obligations in connection with thatwithdrawal, in either case as determined by the Administrator in accordance withPlan Rules.
(ii)            TheParticipant has received all withdrawals and has taken all nontaxable loansavailable under the Plan and all other qualified plans maintained by anyAffiliated Organization. 
(iii)         All 401(k) Contributions and After-Tax Contributions and allelective deferrals and after-tax employee contributions by or on behalf of theParticipant under any other qualified or nonqualified plan of deferredcompensation maintained by any Affiliated Organization are suspended for aperiod of 12 months following the date of the withdrawal.(iv)         For the Participant's taxable year following the taxable yearduring which he or she received the withdrawal, the amount of electivedeferrals under all qualified plans maintained by any Affiliated Organization(including 401(k) Contributions pursuant to the Plan) that may be made on theParticipant's behalf under Code section 402(g) is reduced by the amount of suchelective deferrals made on the Participant's behalf for the taxable year duringwhich he or she received the withdrawal.  (d)           The Administrator's determination of the existence of aParticipant's financial hardship and the amount that may be withdrawn tosatisfy the need created by such hardship will be made in accordance withTreasury Regulations, and is final and binding on the Participant. TheAdministrator may require the Participant to make representations andcertifications concerning his or her entitlement to a withdrawal pursuant tothis section and is entitled to rely on such representations and certificationsunless the Administrator has actual knowledge to the contrary.  The Administrator is not obligated tosupervise or otherwise verify that amounts withdrawn are applied in the mannerspecified in the Participant's withdrawal application.
 
(e)            The amount of any withdrawal pursuant to this section may notexceed the amount of 401(k) Contributions made by the Participant. 

6.2.         ***Withdrawals from 401(k) Contribution Account After Attaining Age 591/2***.  Subject to the provisionsof Section 6.5, a Participant who (a) is an Employee, (b) has attained age 591/2and (c) has received all withdrawals available pursuant to Sections 6.3 and6.4, may withdraw all or any part of the balance of his or her 401(k)Contribution Account.
 
6.3.         ***Withdrawals from After-Tax Contribution Account***.> (a)            Subject to Section 6.5, a Participant who is an Employee maywithdraw all or any part of the balance of his or her After-Tax ContributionAccount. 
 
(b)           All After-Tax Contributions and all Fund earnings or losseswith respect thereto will be treated as a separate contract under the Plan andsuch contributions and earnings or losses will be separately accounted for inaccordance with the Code.  Insofar asthe Plan permitted Participants to make in-service withdrawals from theirAfter-Tax Accounts on May 5, 1986, all withdrawals pursuant to thisSection will be deemed to be made first from the Participant's investment inthe contract as of December 31, 1986 (reduced by withdrawal distributionsmade from the After-Tax Contribution Account after December 31, 1986 and priorto the distribution in question that were not included in the Participant'sgross income).  

6.4.         ***Withdrawals from Rollover Account***.  Subject to the provisions of Section 6.5, aParticipant who (a) is an Employee and (b) has received all withdrawalsavailable pursuant to Section 6.3, may withdraw all or any part of the balanceof his or her Rollover Account.

 

## 

6.5.         ***Rules for Withdrawals***.

## 

> 
(a)            Applications for withdrawals must be made in accordance withand are subject to Plan Rules.

 

(b)           A withdrawal will be made as soon as administrativelypracticable after the Administrator's determination that the Participant isentitled to receive the withdrawal distribution.

 

(c)            A withdrawal will be made on a pro rata basis from theinvestment fund or funds in which the Account from which the distribution ismade is invested.

 

(d)           All withdrawals will be made in the form of a single sumpayment made by a check drawn on the Trust.

 

(e)            A Participant may not withdraw the portion of his or herAccounts consisting of a note evidencing the unpaid balance of any loan madepursuant to the Plan.

 

(f)             The provisions of Section 8.7(a) apply to any withdrawal thatconstitutes an Eligible Rollover Distribution.

6.6.         ***No Other In-Service Withdrawals***.  Except as otherwise expressly provided inthe Plan, a Participant may not make withdrawals from his or her MatchingContribution Account, Profit Sharing Contribution Account or Profit SharingPlan Rollover Account prior to his or her Termination of Employment. 

 

## 

6.7.         ***Plan Loans***.
> (a)            Each Participant or Beneficiary of a deceased Participant who(i) is an Employee or is otherwise a "party in interest" within themeaning of ERISA, and (ii) has received all withdrawals available pursuant toSection 6.3, may borrow funds from the vested balance of his or her 401(k)Contribution, Matching Contribution Account and Rollover Account, by submittingto the Administrator a complete and accurate loan application, in accordancewith and subject to Plan Rules, subject to the succeeding provisions of thissection.(i)             The amount of the loan may not cause the aggregate amount ofoutstanding loans to the borrower from the Plan to exceed the least of:    (1)           $50,000, reduced by the excess (if any) of (A) the highestoutstanding balance of all loans to the borrower from the Plan and all otherqualified plans maintained by any Affiliated Organization during the 12-monthperiod ending on the day before the date of the loan over (B) the outstandingbalance of such loans on the date of the loan; and
(2)           50 percent of the aggregate vested balance of the borrower's401(k) Contribution Account, Matching Contribution Account and Rollover Accountas of the date on which the loan is made.
(ii)           The maturity date for any loan may not exceed five years fromthe date of the note, unless the Administrator determines at the time the loanis made that the proceeds of the loan will be used to purchase a house,townhome, apartment, condominium or mobile home used, or intended to be used withina reasonable time after the loan is made, as the borrower's principalresidence, in which case the maturity date may not exceed ten years from thedate of the note.   
(iii)         No loan will be made from the portion of a borrower's MatchingContribution Account invested in the BMC Common Stock Fund.  If a Participant's Matching ContributionAccount is not fully vested, the portion of the Account that is not invested inthe BMC Common Stock Fund will be allocated ratably among the vested and nonvested  portions of the Account. 

(iv)          Loans will becharged against the vested portion of a borrower's Accounts in the followingorder:  Rollover Account; 401(k) Contribution Account; and MatchingContribution Account.  No loan will be charged against any Account untilthe funds available to be borrowed in any prior Account have been exhausted. A loan application fee, if any, charged by the Trustee or another third partywill be charged against the Participant's Accounts in the same order. 

(v)            Theloan proceeds and any loan application fee will be obtained from the investmentfund or funds in which the borrower's Accounts are then invested on a pro ratabasis, except that no proceeds will be obtained from the portion of a borrower'sMatching Contribution Account invested in the BMC Common Stock Fund. 

(vi)          The promissorynote evidencing a loan must provide for payments of principal and interest inequal installments of such frequency, not less frequently than quarterly, insuch minimum amounts and for such maximum period as Plan Rules prescribe. 
(b)           Each loan will be a loan by the Trust, but for Trustaccounting purposes the loan will be deemed made from the borrower's Accountsagainst which the loan is charged, and the note executed by the borrower willbe deemed to be an asset of those Accounts.  When a loan is made, the borrower's Accounts and any investmentfund from which the loan proceeds are obtained will be reduced by an amountequal to the principal balance of the loan and a loan account will beestablished for the borrower with an initial balance equal to the principalamount of the loan.  The loan accountwill be excluded for purposes of determining and allocating the net earnings(or losses) of the Trust pursuant to Section 4.2.  A borrower's loan payments will be credited to the Accounts fromwhich the loan proceeds were obtained on a pro rata basis.  The loan account will be reduced by theamount of any principal payment on the loan. Repayments of loan principal and payments of interest will be investedas soon as administratively practicable following receipt by the Trustee inaccordance with the borrower's most recent investment directions with respectto new contributions or in the absence of such a direction, in accordance withPlan Rules.
 
(c)            Plan Rules may specify other terms and conditions as may benecessary or desirable for the administration of loans under this section.

# *ARTICLE 7.*Vesting and Forfeitures

## 7.1.         ***Vesting***.  

> 
(a)            A Participant always has a fully vested nonforfeitableinterest in his or her 401(k) Contribution Account, After-Tax ContributionAccount, Rollover Account, and Profit Sharing Plan Rollover Account, in theportion of his or her Matching Contribution Account attributable to his or heremployer contribution account under prior provisions of the Plan and in theportion of his or her Matching Contribution Account or Profit SharingContribution Account credited to a subaccount described in Section 3.6.

 

(b)           A Participant will acquire a fully vested nonforfeitableinterest in the portion of his or her Matching Contribution Account and ProfitSharing Contribution Account not described in Subsection (a) upon attaining hisor her Normal Retirement Date while he or she is, or before he or she became,an Employee.

 

(c)            A Participant will acquire a fully vested nonforfeitableinterest in the portion of his or her Matching Contribution Account and ProfitSharing Contribution Account not described in Subsection (a) if he or she diesor becomes Disabled while he or she is an Employee.

 

(d)           A Participant will acquire a fully vested nonforfeitableinterest in the portion of his or her Profit Sharing Account not described inSubsection (a) upon the Participant's Termination of Employment following theParticipant's attainment of age 60 if the sum of his or her age and full yearsof Vesting Service is at least 65.

 

(e)            A Participant will acquire a fully vested nonforfeitableinterest in the portions of his or her Matching Contribution Account and ProfitSharing Contribution Account not described in Subsection (a) if the AffiliatedOrganization, Participating Business Unit, business unit, location or divisionat which the Participant is employed, permanently ceases operations or is soldor otherwise transferred through sale of stock or of business and assets, insuch manner that it no longer is, or is no longer owned by, an AffiliatedOrganization.

 

(f)             A Participant will acquire a fully vested nonforfeitableinterest in the portions of his or her Matching Contribution Account and ProfitSharing Contribution Account not described in Subsection (a) upon a Change inControl with respect to the Company, which for purposes of this subsectionmeans any of the following:

(i)             The sale, lease, exchange, or other transfer of all or substantially all of theassets of the Company, in one transaction or in a series of relatedtransactions, to any Person; 

 

(ii)           The approval by the stock holders of the Company of any plan or proposal for theliquidation or dissolution of the Company; 

 

(iii)         Any Person is or becomes the "beneficial owner" (as defined in Rule 13d-3 underthe Securities and Exchange Act of 1934, as amended (the "Exchange Act")),directly or indirectly, of 50 percent or more of the combined voting power ofthe Company's outstanding securities ordinarily having the right to vote atelections of directors; 

 

(iv)         Individuals who constitute the Company's Board of Directors on January 1, 1998(the "Incumbent Board") cease for any reason to constitute at least a majoritythereof, provided that any person becoming a director subsequent to January 1,1998 whose election, or nomination for election, by the Company's stockholders,was approved by a vote of at least a majority of the directors comprising theIncumbent Board (either by a specific vote or by approval of the proxy statementof the Company in which such person is named as a nominee for director, withoutobjection to such nomination) will, for purposes of this clause (iv), be deemedto be a member of the Incumbent Board; or

 

(v)           A change in control of a nature that is determined by independent legal counselto the Company to be required to be reported (assuming such event has not been"previously reported") in response to Item 1(a) of the Current Report on Form8-K, as in effect on January 1, 1994, pursuant to section 13 or 15(d) of theExchange Act, whether or not the Company is then subject to such reportingrequirement. 

For purpose of applying theforegoing, the term "Person" means and includes any individual,corporation, partnership, group, association or other "person," assuch term is used in section 14(d) of the Exchange Act, other than the Company,a wholly-owned subsidiary of the Company or any employee benefit plan(s)sponsored by the Company or a wholly-owned subsidiary of the Company.
> (g)            A Participant whose Matching Contribution Account is nototherwise fully vested will acquire a vested nonforfeitable interest in theportion of his or her Matching Contribution Account not described in Subsection(a) to the extent provided in the following schedule:

| Full Years of Vesting Service

Less Than One Year  One Year           Two Years        Three Years      Four or More Years | VestedInterest  0   % 25% 50% 75%  100% |
|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------------------------------------------------------------|
> (h)            A Participant whose Profit Sharing Contribution Account is nototherwise fully vested will acquire a vested nonforfeitable interest in theportion of his or her Profit Sharing Contribution Account not described inSubsection (a) to the extent provided in the following schedule:

| Full Years of Vesting Service

Less than Five Years  Five or More Years | VestedInterest  0   %  100% |
|-------------------------------------------------------------------------|---------------------------------------|

7.2.         ***Forfeiture Upon Distribution***.
> 
(a)            If a Participant receives a distribution of the entire vestedbalance of his or her Accounts after Termination of Employment and before he orshe incurs five consecutive One-Year Breaks in Service, the nonvested portionsof the Participant's Matching Contribution Account and Profit SharingContribution Account will, at the time of such distribution, be forfeited.  A Participant who has no vested interest inhis or her Matching Contribution Account and Profit Sharing ContributionAccount when he or she terminates employment will be deemed to have received adistribution of the entire vested balance of the Accounts at the time of his orher Termination of Employment.

 

(b)           If a Participant described in Subsection (a) received adistribution of less than the entire balance of his or her Accounts, resumesemployment as a Qualified Employee and repays to the Trustee the full amountdistributed, other than the portion of the distribution attributable to his orher After-Tax Contribution Account, Rollover Account and Profit Sharing PlanRollover Account balances, before the earlier of (1) five years following thedate of reemployment as a Qualified Employee or (2) the date on which he or sheincurs five consecutive One-Year Breaks in Service following the distribution,then, the amount of any forfeitures will be restored to the Participant'sMatching Contribution Account and Profit Sharing Contribution Account,unadjusted for interest or any change in value occurring after thedistribution.  Such restoration will bemade from forfeitures that arise for the Plan Year for which such restorationis to be made.  To the extent suchforfeitures are insufficient for such purpose, the Participating Employer withwhom the Participant was last employed as a Qualified Employee will contributethe amount required to restore the Accounts. A Participant described in the last sentence of Subsection (a) who isreemployed before incurring five consecutive One-Year Breaks in Servicefollowing the date of his or her Termination of Employment will be deemed tohave repaid his or her deemed distribution upon his or her reemployment as aQualified Employee.

7.3.         ***Other Forfeitures***.> 
(a)            Except as provided in Section 7.2, the nonvested portions of aParticipant's Matching Contribution Account and Profit Sharing ContributionAccount will continue to be held in separate subaccounts of such Accounts untilthe Participant incurs five consecutive One-Year Breaks in Service, at whichtime the subaccount balances will be forfeited.  If the Participant resumes employment with an Affiliated Organizationprior to incurring five consecutive One-Year Breaks in Service, suchsubaccounts will be disregarded and their balances will be included in theMatching Contribution Account and Profit Sharing Contribution Account.

 

(b)           A Participant's vested interest in his or her MatchingContribution Account and Profit Sharing Contribution Account balances followinga resumption of employment in accordance with Subsection (a) at any given timewill not be less than the amount "X" determined by the formula: X =P(AB + (R x D)) - (R x D), where P is the Participant's vested percentage atthe time of determination; AB is the Account balance at the time ofdetermination; D is the amount of the distribution; and R is the ratio of theAccount balance at the time of determination, to the subaccount balance immediatelyfollowing the distribution.

7.4.         ***Application of Forfeitures***.  All forfeitures occurring in a Plan Year will be allocated to anaccount, invested in accordance with Plan Rulesand applied as follows:

## 

> 
(a)            Such forfeitures will first be applied to restore the Accountsof Participants as provided in Sections 7.2(b) and 8.6; and

 

(b)           Any remaining forfeitures will be applied toward the amount offuture contributions by the Participating Employers for the Plan Year in whichthe forfeiture occurs.

# *ARTICLE 8.*Distributions After Termination

8.1.         ***Form and Time of Distribution***.> (a)            Following a Participant's Termination of Employment, theTrustee will distribute to the Participant or, if the Participant has died, tohis or her Beneficiary, the value of the Participant's vested interest in his orher Accounts.  Subject to the remainingsubsections of this section and Section 8.7, distributions will be made inaccordance with the following provisions.(i)             If the aggregate balance of the Participant's vested interestin his or her Accounts is not more than $5,000, distribution to theParticipant, or to the Participant's Beneficiary in the case of the Participant'sdeath, will be made, in the form of a lump sum payment, as soon asadministratively practicable following the Participant's Termination of Employment.   
(ii)           Except as provided in clause (i), distribution to theParticipant will be made in the form of a lump sum payment.  The distribution will be made as soon asadministratively practicable after the Administrator receives the Participant'sproperly completed distribution request, but in no case later than the sixtiethday after the Plan Year during which the Participant terminates employment orattains age 65, whichever is later, unless the Participant elects to defer thedistribution pursuant to Subsection (b). 

(iii)         Notwithstanding any other provision of the Plan to thecontrary, any Participant who is entitled to receive a distribution of his orher Accounts with an annuity starting date that is before March 1, 2002 mayelect to receive the distribution in any optional form of benefit availableunder the Plan as of the date immediately preceding December 1, 2001.  For purposes of this clause, the term "annuitystarting date" means:  (1) for anannuity, the first day of the first period for which an amount is payable as anannuity; or (2) for a distribution option other than an annuity, the first dayon which all events have occurred which entitle the participant to the benefit.

(iv)         Except as provided in clause (i), distribution to the Participant's Beneficiaryfollowing the Participant's death will be made at the time elected by theBeneficiary in accordance with Subsection (c).  

(v)            Alldistributions will be made in the form of a check drawn on the Trust and, ifapplicable, a canceled note evidencing any Plan loan; provided, that if thevested portion of the Matching Contribution Account balance of a Participant orBeneficiary of a deceased Participant is credited with the equivalent of atleast 10 full shares of Company Stock, at the election of the Participant orBeneficiary, distribution of the vested portion of the Matching ContributionAccount balance invested in the BMC Common Stock Fund may be distributed in fullshares of Company Stock and cash in lieu of any fractional share. 

(vi)          If a contributionis allocated to a Participant's Account following the Participant's Terminationof Employment and after his or her vested Account balance has been distributed,as soon as administratively practicable after the allocation is made, the vestedbalance of the Account will be distributed to the Participant, or to theParticipant's Beneficiary in the case of the Participant's death, in the form ofa lump sum payment. 

(b)           Subject to the provisions of the other subsections of thisSection 8.1, a Participant described in Subsection (a)(ii) may elect to defercommencement of his or her distribution under the Plan by providing theAdministrator with a written, signed statement specifying the date on which thepayment is to be made; provided that the specified date may not be later thanApril 1 of the calendar year following the calendar year during which theParticipant attains age 701/2.  Thestatement must be provided to the Administrator not later than the thirtiethday (or such later date as Plan Rules may allow) after the Plan Year duringwhich the Participant terminates employment or attains age 65, whichever islater.  Plan Rules may permit aParticipant to modify the election in any manner determined by theAdministrator to be consistent with Code section 401(a)(14) and the otherprovisions of this section.

 
(c)            Subject to Subsection (a)(i), if a Participant dies beforereceiving the full amount to which he or she is entitled, the amount remainingwill be distributed to the Participant's Beneficiary in a lump sum payment nolater than December 31 of the calendar year which contains the fifthanniversary of the date of the Participant's death, at such time or times asthe Beneficiary elects on a form provided by the Administrator. 

If the Participant's spouse isthe Beneficiary and dies after the Participant's death but before distributionsto the spouse have commenced, the foregoing rules will be applied as if thesurviving spouse were the Participant, including the substitution of thesurviving spouse's date of death for the Participant's date of death. 
> 
(d)           Notwithstanding Subsection (a), distribution to anyParticipant who attains age 70-1/2 before January 1, 1999, and distribution toany Participant who is a "5-percent owner," within the meaning of theCode section 416, must begin not later than April 1 of the calendar year afterthe Participant attains age 70-1/2, whether or not the Participant hasterminated employment, as if he or she had terminated employment on the lastday of the Plan Year during which he or she attained age 70-1/2.  A Participant who attained age 70-1/2 beforeJanuary 1, 1999, is not a 5-percent owner and is an Employee on September 1,1998 may elect to stop distributions or to defer commencement of distributions,as the case may be.  The election mustbe made in accordance with and is subject to Plan Rules, must be received bythe Administrator not later than a date specified in Plan Rules, and willbecome effective as soon as administratively practicable after it is receivedby the Administrator.  The election isirrevocable after it is received by the Administrator.  If distributions to a Participant arestopped pursuant to this subsection, the Participant will have a new annuitystarting date and his or her benefit will recommence in accordance with theother subsections of this Section 8.1 following his or her subsequenttermination of employment.

 

(e)            Notwithstanding any other provision of the Plan to thecontrary, distributions will be made in accordance with regulations issuedunder Code section 401(a)(9), including Treasury Regulationsection 1.401(a)(9)-2, and any provisions of the Plan reflecting Codesection 401(a)(9) take precedence over any distribution options in the Planthat are inconsistent with Code section 401(a)(9).

 
(f)             With respect to distributions under the Plan made in calendaryears beginning on and after January 1, 2002, the Plan will apply the minimumdistribution requirements of Code section 401(a)(9) in accordance with theregulations under Code section 401(a)(9) that were proposed in January 2001, notwithstandingany provision of the Plan to the contrary.  

8.2.         ***Beneficiary Designation***.> 
(a)            Each Participant may designate, on a form provided by theAdministrator, one or more primary Beneficiaries or alternative Beneficiariesfor all or a specified fractional part of his or her aggregate Accounts and maychange or revoke any such designation from time to time.  No such designation, change or revocation iseffective unless executed by the Participant and received by the Administratorduring the Participant's lifetime. Subject to Subsection (d), no such change or revocation requires theconsent of any person.

 
(b)           If a Participant(i)             fails to designate a Beneficiary, or  
(ii)             revokes a Beneficiary designation without naming another Beneficiary, or 

(iii)          designates one ormore Beneficiaries none of whom survives the Participant, 

for all or any portion of the Accounts, such Accounts orportion are payable to the first class of the following classes of automaticBeneficiaries that includes a member surviving the Participant:

Participant's spouse;Participant's issue, per stirpes and not per capita;Representative of Participant's estate.
> 
(c)            When used in this section and, unless the designationotherwise specifies, when used in a Beneficiary designation, the term "perstirpes" means in equal shares among living children and the issue (takencollectively) of each deceased child, with such issue taking by right ofrepresentation; "children" means issue of the first generation; and "issue"means all persons who are descended from the person referred to, either bylegitimate birth or legal adoption.  Theautomatic Beneficiaries specified above and, unless the designation otherwisespecifies, the Beneficiaries designated by the Participant, become fixed as ofthe Participant's death so that, if a Beneficiary survives the Participant butdies before the receipt of all payments due such Beneficiary, any remainingpayments are payable to the representative of such Beneficiary's estate.  Any designation of a Beneficiary by namethat is accompanied by a description of relationship or only by statement ofrelationship to the Participant is effective only to designate the person orpersons standing in such relationship to the Participant at the Participant'sdeath.

 

(d)           Notwithstanding Subsection (a), no designation of aBeneficiary other than the Participant's spouse is effective unless such spouseconsents to the designation.  Any suchconsent is effective only with respect to the Beneficiary or class ofBeneficiaries so designated and only with respect to the spouse who soconsented.

8.3.         ***Assignment, Alienation of Benefits***.> 
(a)            Except as required under a qualified domestic relations orderor by the terms of any loan from the Trust or to comply with a federal tax levypursuant to Code section 6331, and except as otherwise provided in Code section401(a)(13)(C),  

 

               (i) no benefit under the Plan may in any manner be anticipated,  alienated, sold, transferred, assigned, pledged, encumbered or charged, and  any attempt to do so is void and 

 

               (ii) no benefit under the Plan is in any manner liable for or  subject to the debts, contracts, liabilities, engagements or torts of the  person entitled to such benefit.

 

(b)           To the extent provided in a qualified domestic relationsorder, distribution of benefits assigned to an alternate payee by such ordermay be distributed to the alternate payee in the form of a lump sum paymentprior to the Participant's earliest retirement age.  The terms "qualified domestic relations order," "alternatepayee" and "earliest retirement age" have the meanings given inCode section 414(p).

8.4.         ***Payment in Event of Incapacity***.  If any person entitled to receive anypayment under the Plan is physically, mentally or legally incapable ofreceiving or acknowledging receipt of the payment, and no legal representativehas been appointed for such person, the Administrator in its discretion may(but is not required to) cause any sum otherwise payable to such person to bepaidtoany one or more of the following as may be chosen by the Administrator: theBeneficiaries, if any, designated by such person; the institution maintainingsuch person; a custodian for such person under the Uniform Transfers to MinorsAct of any state; or such person's spouse, children,parents or other relatives by blood or marriage.  Any such payment completely discharges all liabilityunder the Plan to the person with respect towhom the payment is made to the extent of the payment.

 

## 

8.5.         ***Payment Satisfies Claims***.  Any payment to or for the benefit of any Participant, orBeneficiary in accordance with the provisions of the Plan, to the extent ofsuch payment, fully satisfies of all claims against the Trustee, the Administrator and theParticipating Employers, any of whom may require the payee to execute areceipted release as a condition precedent to such payment.

 

## 

8.6.         ***Disposition if Distributee Cannot be Located***.  If the Administrator is unable to locate aParticipant or Beneficiary to whom a distribution is due, the amount that wouldotherwise be distributed to the Participant or Beneficiary will beforfeited, and the forfeited amount will be applied in accordance with Section7.4.  The forfeited amount will berestored to the Accounts from which the amount was forfeited, unadjusted forinterest or any change in value occurring after the forfeiture, upon theParticipant's or Beneficiary's claim for the benefit.  The restoration will be made through funds available pursuant toSection 7.4(a).  To the extent suchfunds are insufficient for such purpose, the Participating Employer with whomthe Participant was last employed will contribute the amount required torestore the Accounts.

 

## 

8.7.         ***Direct Rollovers and Transfers***. 

## 

> 
(a)            To the extent a distribution is an Eligible RolloverDistribution, the Administrator will, if so instructed by the distributee inaccordance with Plan Rules, direct the Trustee to make the distribution to an "eligibleretirement plan," within the meaning of Code section 402(c)(8).  Unless otherwise provided in Plan Rules, theforegoing provision will not apply (i) if the aggregate taxable distributionsto be made to the distributee during the calendar year are less than $200, (ii)if less than the entire taxable amount of the distribution is to be distributedto the eligible retirement plan and the amount to be distributed to theeligible retirement plan is less than $500 or (iii) with respect to any portionof an Eligible Rollover Distribution that consists of an offset amount withrespect to a Plan loan.

 

(b)           The Administrator may direct the Trustee to transfer thebalance of any or all of the Accounts of a Participant to the trustee ofanother plan if: 

 

(i)               the other plan is a defined contribution plan qualified under Code section  401(a); 

 

(ii)             the other plan satisfies the requirements set forth in Code sections 401(k)  and 411(d)(6) with respect to the transferred Accounts to which such  requirements are applicable; and

 

(iii)           the trustee of the other plan is willing to accept such transfer. 

# *ARTICLE 9.*Contribution Limitations

9.1.         ***401(k) Contribution Dollar Limitation.***> 
(a)            The aggregate amount of 401(k) Contributions and other "electivedeferrals" (within the meaning of Code section 402(g)(3)) under any otherqualified plan maintained by an Affiliated Organization with respect to aParticipant for any taxable year of the Participant may not exceed thelimitation in effect for the taxable year under Code section 402(g).  The limitation for any Participant whoreceived a hardship distribution under Section 6.1 will, for the year followingthe year in which such distribution was made, be reduced as provided in Section6.1(c)(iv).  If the limitation is exceededfor any taxable year of the Participant, the portion of the excess specified bythe Company, increased by Fund earnings or decreased by Fund lossesattributable to the excess as determined under Section 9.5, will be distributedto the Participant.  

 

(b)           The amount distributed pursuant to this section to aParticipant who has made elective deferrals for the taxable year other thanpursuant to the Plan or another qualified plan maintained by an AffiliatedOrganization will, to the extent of such other elective deferrals, bedetermined in accordance with written allocation instructions received by theAdministrator from the Participant not later than March 1 of the following thetaxable year.

 

(c)            A distribution pursuant to this section may be made at anytime after the excess contributions are received, but not later than April 15of the taxable year following the taxable year to which the limitationrelates.  

9.2.         ***Actual Deferral Percentage Limitations***.> (a)            For each Plan Year, the Plan must satisfy the requirements ofCode section 401(k)(3).  (i)             The Plan will satisfy the requirements of Code section401(k)(3) for a Plan Year if, for that Plan Year, the Plan satisfies therequirements of Code section 410(b)(1) with respect to "eligible employees"and either of the following tests:    (1)           the "actual deferral percentage" for the Plan Yearfor eligible employees who are Highly Compensated Employees for the Plan Yearis not more than the product of the actual deferral percentage for theprecedingPlan Year for all eligibleemployees who are not Highly Compensated Employees for the preceding Plan Year,multiplied by one and one-quarter; or
 (2)           the excess of the actual deferral percentage for the Plan Yearfor eligible employees who are Highly Compensated Employees for the Plan Yearover the actual deferral percentage for the preceding Plan Year for alleligible employees who are not Highly Compensated Employees for the precedingPlan Year is not more than two percentage points and the actual deferralpercentage for the Plan Year for eligible employees who are Highly CompensatedEmployees for the Plan Year is not more than the product of the actual deferralpercentage for the preceding Plan Year of all eligible employees who are notHighly Compensated Employees for the preceding Plan Year, multiplied bytwo;  provided, that for the initialPlan Year, the actual deferral percentage for eligible employees who are notHighly Compensated Employees is their actual deferral percentage for theinitial Plan Year.
(ii)           For purposes of this section and Section 9.4:    (1)           "eligible employee" means an Active Participant whois eligible to make 401(k) Contributions for the Plan Year in question or wouldbe eligible but for a suspension imposed under Section 3.1(b)(iv); and
(2)           "actual deferral percentage," with respect to eitherof the two groups of eligible employees referenced above, is the average of theratios, calculated separately for each eligible employee in the particulargroup, of the amount of 401(k) Contributions made by the eligible employee forthe Plan Year in question, to the eligible employee's Testing Wages for thePlan Year in question, or the portion of such Plan Year during which he or shewas an eligible employee, as specified in Plan Rules.  In computing the actual deferral percentage, the following rules apply:

(A)          Any 401(k) Contributions made by an eligible employee who isnot a Highly Compensated Employee that are in excess of the limitationdescribed in Section 9.1 will be excluded;

 

(B)          Any 401(k) Contributions made by an eligible employee that aredistributed to the eligible employee pursuant to Section 9.6(c) will beexcluded;

 

(C)          Except as otherwise provided in Treasury Regulations, 401(k)Contributions taken into account in determining the actual contributionpercentage under Section 9.3(a)(ii) will be excluded;

 

(D)          To the extent permitted by Treasury Regulations and determinedby the Administrator, all or any portion of any other contribution to the Planor any other qualified plan maintained by an Affiliated Organization will beincluded;

 

(E)           Elective contributions under any other plan that is aggregatedwith this Plan to satisfy the requirements of Code section 410(b) will beincluded; and

 

(F)           To the extent provided in Treasury Regulations, electivecontributions made under any other qualified cash or deferred arrangement ofany Affiliated Organization on behalf of any eligible Employee who is a HighlyCompensated Employee will be included.

(b)           To the extent deemed advisable by the Administrator to complywith Code section 401(k)(3), the Administrator may, in accordance with PlanRules, prospectively decrease a Participant's 401(k) Contributions.  

 

(c)            If, for any Plan Year, the requirements of Subsection (a) arenot satisfied, the Administrator will determine the amount by which 401(k)Contributions made by each Highly Compensated Employee for the Plan Yearexceeds the permissible amount as determined under Subsection (a).  The determination will be made bysuccessively decreasing the rate of 401(k) Contributions by the HighlyCompensated Employees who, during the Plan Year, had the greatest percentage of401(k) Contributions to the next lower percentage, then again decreasing thepercentage of such Highly Compensated Employees' 401(k) Contributions, togetherwith the percentage of 401(k) Contributions by such Highly Compensated Employeeswho were already at such lower percentage, to the next lower percentage, andcontinuing such procedure for as many percentage decreases as the Administratordeems necessary.  The Administrator maymake such reductions in any amount.

 

(d)           The amount of excess 401(k) Contributions determined inaccordance with Subsection (c), increased by Fund earnings or decreased by Fundlosses attributable to such excess as determined under Section 9.5, will bedistributed to affected Highly Compensated Employees, at such time as theAdministrator specifies on or following the last day of the Plan Year for whichthe determination is made, but in no case later than the last day of thefollowing Plan Year.  The amount to bedistributed with respect to any Plan Year will be reduced by the portion of theamount, if any, distributed pursuant to Section 9.1 that is attributable to401(k) Contributions that relate to such Plan Year, determined by assuming that401(k) Contributions in excess of the limitation described in Section 9.1 for agiven taxable year are the first contributions made for a Plan Year fallingwithin such taxable year.  Additionalamounts to be distributed to Highly Compensated Employees will be determined bysuccessively decreasing the amount of 401(k) Contributions for HighlyCompensated Employees who, for the Plan Year, had the largest amount of 401(k)Contributions made on their behalf to the next lower amount, and continuingthis procedure until an amount equal to the aggregate amount of excess 401(k)Contributions has been removed from the Accounts of the Highly CompensatedEmployees.

 

(e)            To the extent required or permitted by Treasury Regulations,the Administrator will or may, as the case may be, apply the limitationdescribed in this section separately to each group of eligible employees whoare included in a unit of Employees covered by a collective bargainingagreement.

 

(f)             If the Administrator elects to apply Code section 410(b)(4)(B)in determining whether the Plan satisfies either of the tests described in Section9.2(a)(i) for a Plan Year, all eligible employees who have not met either theminimum age and/or minimum service requirements of Code section 410(a)(1)(A)will be considered separately in accordance with the tests described in Section9.2(a)(i).

9.3.         ***Actual Contribution Percentage Limitations***.

## 

> 
(a)            For each Plan Year, the Plan must satisfy the requirements ofCode section 401(m)(2).

(i)             The Plan will satisfy the requirements of Code section401(m)(2) for a Plan Year if, for that Plan Year, the Plan satisfies either ofthe following tests: 

(1)           the "actual contribution percentage" for the PlanYear for "eligible employees" who are Highly Compensated Employeesfor the Plan Year is not more than the product of the actual contributionpercentage for the preceding Plan Year for all eligible employees who are notHighly Compensated Employees for the preceding Plan Year, multiplied by one andone-quarter; or 

 

(2)           the excess of the actual contribution percentage for the PlanYear for eligible employees who are Highly Compensated Employees for the Plan Year over the actualcontribution percentage for the preceding Plan Year for all eligible employeeswho are not Highly Compensated Employees for the preceding Plan Year is notmore than two percentage points and the actual contribution percentage for thePlan Year for Highly Compensated Employees for the Plan Year is not more thanthe product of the actual contribution percentage for the preceding Plan Yearfor all eligible employees who are not Highly Compensated Employees for the precedingPlan Year, multiplied by two; provided, that for the initial Plan Year, theactual contribution percentage for eligible employees who are not HighlyCompensated Employees is their actual contribution percentage for the initialPlan Year.
(ii)           For purposes of this section and Section 9.4:    (1)           "eligible employee" means an Active Participant whois eligible to make After-Tax Contributions, or to have Matching Contributionsmade on his or her behalf for the Plan Year in question or who would beeligible but for a suspension imposed under Section 3.1(b)(iv) or Section3.2(b)(iv); and 
(2)           the "actual contribution percentage" with respect toeither of the two groups of eligible employees referenced above, is the averageof the ratios, calculated separately for each eligible employee in theparticular group, of the aggregate amount of After-Tax Contributions made by,andMatching Contributions made onbehalf of, the eligible employee for the Plan Year, to the eligible employee'sTesting Wages for the Plan Year, or the portion of the Plan Year during whichhe or she was an eligible employee, as specified in Plan Rules.  In computing the actual contributionpercentage the following rules apply:

(A)          Except as otherwise provided in Treasury Regulations, MatchingContributions taken into account in determining the actual deferral percentageunder Section 9.2(a)(ii) will be excluded;  

 

(B)          Matching Contributions taken into account for purposes of theminimum contribution required by Section 13.3(a) will be excluded;

 

(C)          Any Matching Contributions forfeited pursuant to Section9.6(c) will be excluded;

 

(D)          To the extent permitted by Treasury Regulations and determinedby the Administrator, all or any portion of the 401(k) Contributions made byeligible employees for the Plan Year will be included;

 

(E)           To the extent permitted by Treasury Regulations and determinedby the Administrator, all or any portion of any other contributions to anyother qualified plan maintained by an Affiliated Organization will be included;

 

(F)           Matching contributions (within the meaning of Code section401(m)(4)(A)) and after-tax contributions made under any other plan that isaggregated with this Plan to satisfy the requirements of Code section 410(b)will be included; and

 

(G)          To the extent required by Treasury Regulations, matching contributions(within the meaning of Code section 401(m)(4)(A)) and after-tax contributionsmade under any other qualified plan of any Affiliated Organization on behalf ofor by any eligible employee who is a Highly Compensated Employee will beincluded.

(b)           If, for any Plan Year, the requirements of Subsection (a) arenot satisfied, the Administrator will determine the amount by which After-TaxContributions made by each Highly Compensated Employee for the Plan Year and,if necessary, Matching Contributions made on behalf of each Highly CompensatedEmployee for the Plan Year exceeds the permissible amount as determined underSubsection (a), such determination being made in accordance with the proceduredescribed in Section 9.2(c) with respect to reductions of 401(k)Contributions.  

 

(c)            The amount of excess After-Tax Contributions and MatchingContributions determined in accordance with Subsection (b), increased by Fundearnings or decreased by Fund losses attributable to such excess as determinedunder Section 9.5, will be distributed to affected Highly Compensated Employeesat such time as the Administrator specifies on or following the last day of thePlan Year for which the determination is made, but in no case later than thelast day of the following Plan Year; provided, however, that to the extent theexcess Matching Contributions would not be fully vested if retained in thePlan, such excess will be forfeited rather than distributed, and any suchforfeitures will be applied as provided in Section 3.3(d).  Amounts to be distributed to HighlyCompensated Employees or forfeited will be determined by successivelydecreasing the amount of After-Tax Contributions made by, and, if necessary,Matching Contributions made on behalf of Highly Compensated Employees who, forthe Plan Year, made the largest After-Tax Contributions and had the largestamount of Matching Contributions made on their behalf to the next lower amount,and continuing this procedure until an amount equal to the aggregate amount ofexcess contributions has been removed from the Accounts of the HighlyCompensated Employees.

 

(d)           To the extent provided in Treasury Regulations, thelimitations described in this section do not apply to any group of eligibleemployees who are included in a unit of Employees covered by a collectivebargaining agreement.

 

(e)            If the Administrator elects to apply Code section 410(b)(4)(B)in determining whether the Plan satisfies either of the tests described inSection 9.3(a)(i) for any Plan Year, all eligible employees who have not meteither the minimum age and/or minimum service requirements of Code section410(a)(1)(A) will be considered separately in accordance with the testsdescribed in Section 9.3(a)(i).

 

(f)             To the extent deemed necessary by the Administrator in orderto comply with such requirements, the Administrator may, in accordance withPlan Rules, prospectively decrease the rate at which a Participant may makeAfter-Tax Contributions.  

9.4.         ***Multiple Use Limitation***.

## 

> 
(a)            This section applies for any Plan Year for which the sum ofthe actual deferral percentage for eligible employees who are HighlyCompensated Employees, plus the actual contribution percentage for eligibleemployees who are Highly Compensated Employees, exceeds the "aggregatelimit."  For purposes of thissubsection, the aggregate limit is the greater of:
(i)             The sum of:    (1)           the product of one and one-quarter, multiplied by the greaterof
(A)          the actual deferral percentage for the Plan Year for eligibleemployees who are not Highly Compensated Employees or

 

(B)          the actual contribution percentage for the Plan Year foreligible employees who are not Highly Compensated Employees;

plus
> 
(2)           the sum of two percentage points plus the lesser of the actualdeferral percentage determined under item (A) of clause (1) above or the actualcontribution percentage determined under item (B) of clause (1) above, withsuch sum in no case exceeding twice the lesser of such actual deferralpercentage or actual contribution percentage;

or
> 
(ii)           The sum of: 

(1)           the product of one and one-quarter, multiplied by the lesserof

(A)          the actual deferral percentage for the Plan Year for eligibleemployees who are not Highly Compensated Employees or

 
(B)          the actual contribution percentage for the Plan Year foreligible employees who are not Highly Compensated Employees;

plus
> (2)           the sum of two percentage points plus the greater of theactual deferral percentage determined under item (A) of clause (1) above or theactual contribution percentage determined under item (A) of clause (1) above,with such sum in no case exceeding twice the lesser of such actual deferralpercentage or actual contribution percentage.
(b)           If, for any Plan Year, the calculations under Subsection (a)require that this section be applied, the Administrator  will determine the amount by which After-TaxContributions made by, andMatchingContributions made on behalf of, each Highly Compensated Employee for the PlanYear causes the excess amount determined under Subsection (a), suchdetermination being made in accordance with the provisions of Section 9.3(b).  At such time as the Administrator  specifies on or following the last day ofthe Plan Year for which such determination is made, but in no case later thanthe last day of the following Plan Year, the excess will be corrected inaccordance with Section 9.3(c).

 

(c)            To the extent provided in Treasury Regulations, thelimitations described in this section do not apply to any group of eligibleemployees who are included in a unit of employees covered by a collectivebargaining agreement.

9.5.         ***Earnings or Losses on Excess Contributions***.> 
(a)            The amount of Fund earnings or losses with respect to theexcess amount of contributions returned to a Highly Compensated Employeepursuant to this article is an amount equal to the product of the totalearnings or losses for the Participant's Account to which the excesscontributions were credited for the Plan Year with respect to which thedetermination is being made, multiplied by a fraction, the numerator of whichis the excess amount of contributions made on the Participant's behalf to such Account for the Plan Year, and the denominator ofwhich is the closing balance of such Account for the Plan Year, decreased by theamount of earnings added to that Account, or increased by the amount of lossescharged to that Account, for the Plan Year.  

 

(b)           Contributions returned pursuant to Section 9.6(c)(iii) willalso include the earnings or losses attributable to such excess amount for theperiod between the end of the Plan Year with respect to which the determinationis being made and the date on which such excess contributions are distributedto the Participant.  The earnings orlosses attributable to such excess amount for such period will be an amountequal to the product of ten percent of the earnings or losses attributable tosuch excess amount for the Plan Year, as determined in accordance withSubsection (a), multiplied by the number of calendar months during the periodfor which the determination is being made, with a distribution being made on orbefore the fifteenth day of a month being deemed to have been made on the lastday of the preceding month and a distribution being made after the fifteenthday of a month being deemed to have been made on the first day of the followingmonth.

9.6.         ***Annual Additions Limitation***.

## 

> 
(a)            Notwithstanding any contrary provisions of the Plan, there willnot be allocated to any Participant's Accounts for a Plan Year any amount thatwould cause the aggregate "annual additions" with respect to theParticipant for the Plan Year to exceed the lesser of:

(i)             $30,000 (or such dollar amount, adjusted to reflect increases in the cost ofliving, as in effect under Code section 415(c)(1)(A) for the calendar yearduring which the Plan Year in question begins); and 

 

(ii)           25 percent of the Participant's Section 415 Wages for the Plan Year. 

(b)           For purposes of Subsection (a), the "annual additions"with respect to a Participant for a Plan Year are the sum of:

(i)             the aggregate amount of 401(k), After Tax, Matching and Profit SharingContributions allocated to the Participant's Accounts under the Plan for thePlan Year (including the amount of any 401(k), Matching or After-TaxContributions distributed to the Participant or forfeited pursuant to Section9.2(d) or 9.3(c) but excluding any 401(k) Contributions in excess of thelimitation set forth in Section 9.1 that are distributed to the Participant byApril 15 of the year following the year to which such contributions relate) andemployer contributions, employee contributions and forfeitures allocated to theParticipant's accounts under any other qualified defined contribution planmaintained by any Affiliated Organization for the Plan Year; plus 

 

(ii)           the amount, if any, attributable to post-retirement medical benefits that isallocated to a separate account for the Participant as a "key employee" withinthe meaning of Code section 416(i), to the extent required under Code section419A(d)(1). 

 

Unless otherwise provided in Treasury Regulations, if a401(k), Matching or Profit Sharing Contribution with respect to a Plan Year ismade more than 30 days after the due date (including extensions) of the Company'sfederal income tax return for the Company's taxable year coinciding with thePlan Year or in which the Plan Year ends, the contribution will be an annualaddition for the Plan Year during which the contribution is made.  If an After-Tax Contribution with respect toa Plan Year is made more than 30 days after the end of the Plan Year, thecontribution will be an annual addition for the Plan Year during which thecontribution is made.

(c)             

(i)             To the extent deemed advisable by the Administrator to preventthe limitation under Subsection (a) from being exceeded, the Administrator may,in accordance with Plan Rules, prospectively decrease a Participant's After-TaxContributions or 401(k) Contributions.

 

(ii)           If a further reduction of contributions is required, theamount of the Matching Contribution that would otherwise be allocated to theParticipant's Account will be reduced and the aggregate amount of the MatchingContribution for the Plan Year will be reduced by the same amount and then theProfit Sharing Contribution that would otherwise be allocated to theParticipant's Profit Sharing Contribution Account will be reduced and theaggregate amount of the Profit SharingContribution for the Plan Year will bereduced by the same amount. 

 

(iii)         If, in spite of such reduction and as a result of the allocation of forfeituresor a reasonable error in estimating the amount of the Participant's EligibleEarnings, Section 415 Wages, 401(k) Contributions or other elective deferralswithin the meaning of Code section 402(g)(3) for the Plan Year, the limitationwould otherwise be exceeded, then, to the extent required to prevent suchexcess: 

(1)           the amount of After-Tax Contributions made by the Participantfor the Plan Year, together with earnings on such contributions, will be distributedto the Participant; then

 

(2)           the amount of 401(k) Contributions made for the Participant,together with earnings on such contributions, will be distributed to theParticipant and any Matching Contributions attributable to the amount sodistributed, together with earnings on such contributions, will be forfeitedand applied as provided in Section 3.3(d); then

 

(3)           if a further excess would otherwise exist, the amount of suchexcess will be held unallocated in a suspense account and will be allocated toall other eligible Participants for the Plan Year and, to the extent necessary,subsequent Plan Years, before Matching and Profit Sharing Contributions aremade for such Plan Year or Years, and will be applied toward the amount of suchcontributions for such Plan Year or Years.

9.7.         ***Administrator's Discretion***.  Notwithstanding the foregoing provisions of this article, theAdministrator may apply the provisions of Sections 9.1through 9.6 in anymanner permitted by Treasury Regulations that will cause the Plan to satisfythe limitations of the Code incorporated in such sections and TreasuryRegulations thereunder, and the Administrator's good faith application ofTreasury Regulations is binding on all Participants and Beneficiaries.

# *ARTICLE10.*Service Rules

10.1.       ***VestingService***.  Theterm "Vesting Service" with respect to an Employee means, except asprovided in Section 10.3, the aggregate number of Plan Years during each ofwhich the Employee completes at least 1000 Hours of Service.

 
10.2.       ***One-YearBreak in Service***. An Employee will incur a "One-Year Break in Service" if theEmployee fails to complete at least 500 Hours of Service during a Plan Year;provided, that, for purposes only of determining whether an Employee hasincurred such a One-Year Break in Service, in addition to Hours of Servicecredited under Section 10.5, there will be taken into account the number ofHours of Service that otherwise would have been credited to the Employee, or,if the number of such hours of service cannot be determined, eight hours ofservice for each day on which the Employee would have otherwise performedservices for an Affiliated Organization, during an authorized leave of absence,while still employed with the Affiliated Organization, pursuant to anyestablished, nondiscriminatory leave policy of an Affiliated Organization ordue to:> 
(a)            the Employee's pregnancy;

 

(b)           the birth of the Employee's child;

 

(c)            the placement of a child with the Employee in connection withthe adoption of such child by the Employee; or

 

(d)           the Employee's caring for such child for a period beginningimmediately following such birth or placement;

provided, first, that the total number of suchadditional Hours of Service taken in to account by reason of any such absencewill not exceed 501; second, that, if the Employee would be prevented from incurringa One-Year Break in Service for the Plan Year in which such absence commencedsolely because the additional Hours of Service are so credited, such Hours ofService will be credited only to such Plan Year or, if a One-Year Break inService for such Plan Year would not be so prevented, such additional Hours ofService will be credited to the Plan Year following the Plan Year during whichsuch absence commenced; and third, that, notwithstanding the foregoing, no suchadditional Hours of Service will be credited in connection with an absence forone of the reasons set forth at items (a) through (d) unless the Employeefurnishes to the Administrator, on a timely basis, such information as theAdministrator reasonably requires in order to establish the number of daysduring which the Employee was absent for that reason.  In addition, an Employee will be credited with Hours of Servicefor the purpose of determining whether he or she has incurred a One-Year Breakin Service to the extent required by the Family and Medical Leave Act of 1993.

 
10.3.       ***Lossof Service***. If an Employee terminates employment and experiences at least fiveconsecutive One-Year Breaks in Service, then:> (a)            if the Employee had a vested interest in his or her Accountprior to the Breaks in Service,(i)             his or her Vesting Service completed prior to such Breaks in Service will betaken into account in determining his or her vested interest in his or herAccounts attributable to contributions made for periods after the Breaks inService but only if the Employee completes one year of Vesting Service followingsuch Breaks in Service and  
(ii)            the  extent of the Employee's vested interest in his or her Accounts as determined  under Section 7.1 prior to the Breaks in Service will not be increased by  Vesting Service completed following the Breaks in Service; or 
(b)           if the Employee had no vested interest in his or her Accountprior to the Breaks in Service, the Employee's service completed prior to theBreaks in Service will not be taken into account for any purpose under thePlan.

10.4.       ***Pre-AcquisitionService***.** **Service with an entity (all or anyportion of which is acquired by, merges with or becomes an AffiliatedOrganization) for any period prior to the date of the acquisition, merger oraffiliation will be taken into account under this Plan only if, to the extentand for the purposes, specified on an exhibit to the Plan, as provided for inSection 14.1(f).
 
10.5.       ***Hourof Service***.> (a)            Subject to the remaining subsections of this section, the term"Hour of Service," with respect to an Employee, includes and islimited to:(i)             each hour for which the Employee is paid, or entitled to payment, for theperformance of duties for an Affiliated Organization;    
(ii)               each hour: 
(1)           for which the Employee is paid, or entitled to payment, by anAffiliated Organization on account of a period of time during which no dutiesare performed (irrespective of whether the employment relationship hasterminated) due to vacation, holiday, illness (including disability), layoff,jury duty, military duty or leave of absence;
 (2)           for which the Employee is not paid or entitled to payment butwhich is required by federal law to be credited to the Employee on account ofhis or her military service or similar duties; and

(3)           for which back pay, irrespective of mitigation of damages, iseither awarded or agreed to by an Affiliated Organization; provided, first,that Hours of Service taken into account under clause (i), (ii)(1) or (ii)(2)will not also be taken into account under this clause (3); and second, thatHours of Service taken into account under this clause (3) that relate toperiods specified in clause (ii)(1) will be subject to the rules underSubsection (b).  
(b)           The following rules will apply for purposes of determining theHours of Service completed by an Employee under Subsection (a)(ii)(1):(i)             No more than 501 hours will be credited to the Employee onaccount of any single continuous period during which the Employee performs noduties (whether or not such period occurs in a single Plan Year);  
(ii)           No more than the number of hours regularly scheduled for theperformance of duties for the period during which no duties are performed willbe credited to the Employee for such period;

 (iii)         The Employee will not be credited with hours for whichpayments are made or due under a plan maintained solely for the purpose ofcomplying with workers compensation, unemployment compensation or disabilityinsurance laws, or for which payments are made solely to reimburse the Employeefor medical or medically related expenses;

(iv)         A payment will be deemed to be made by or due from anAffiliated Organization, regardless of whether such payment is made by or duefrom the Affiliated Organization directly or indirectly through a trust fund orinsurer to which the Affiliated Organization contributes or pays premiums;

 (v)           If the payment made or due is calculated on the basis of unitsof time, the number of Hours of Service to be credited will be the number ofregularly scheduled working hours included in the units of time on the basis ofwhich the payment is calculated; provided, that, if such a payment is made toan Employee described in Subsection (d)(i), the number of Hours of Service tobe credited will be the number of equivalent hours determined under Subsection(d)(i) that are included in the units of time on the basis of which the paymentis calculated; 

(vi)          If the paymentmade or due is not calculated on the basis of units of time, the number of Hoursof Service to be credited will be equal to the amount of the payment, divided bythe Employee's most recent hourly rate of compensation before the period duringwhich no duties are performed; and

 (vii)        Hours will bedetermined in accordance with Section 2530.200(b)-2(b) of the Department ofLabor Regulations which is incorporated herein by reference. 
(c)            Hours of Service will be credited: (i)             in the case of Hours of Service described in Subsection(a)(i), to the Plan Year in which the duties are performed;  
(ii)           in the case of Hours of Service described in Subsection(a)(ii)(1), to the Plan Year or Plan Years in which the period during which noduties are performed occurs; provided, that, if the payment is not calculatedon the basis of units of time, the Hours of Service will not be allocatedbetween more than the first two Plan Years of such period;

(iii)         in the case of Hours of Service described in Subsection (a)(ii)(2),to the Plan Year or Plan Years determined by the Administrator in accordancewith the applicable federal law;

(iv)         in the case of Hours of Service described in Subsection(a)(ii)(3), to the Plan Year or Plan Years to which the award or agreement forback pay pertains; and 

(v)            asotherwise provided in Section 2530.200(b)-2(c) of the Department of LaborRegulations which is incorporated herein by reference. 
(d)           For purposes of determining the number of Hours of Servicecompleted by an Employee during a particular period of time: (i)             an Employee who is not subject to the overtime provisions of the Fair LaborStandards Act of 1938, as from time to time amended, will be credited with 45Hours of Service for each week during which he or she completes at least oneHour of Service; and  
(ii)            each  other Employee will be credited with the number of Hours of Service that he or  she completes during such period. 
(e)            Notwithstanding the foregoing provisions of this section, anindividual will be credited with the number of Hours of Service he or shecompletes, determined in the manner specified in Subsections (a) through (d):(i)             while a Leased Employee; and  
(ii)            with  any other organization to the extent such Hours of Service are required to be  taken into account pursuant to Treasury Regulations under Code section 414(o).

# *ARTICLE11.*Adoption, Amendment and Termination

11.1.       ***Adoptionby Affiliated Organizations***. With the prior approval of the Administrator, an Affiliated Organizationmay adopt this Plan and become a Participating Employer.  Any special provisions applicable to aParticipating Employer's Employees will be set forth on an exhibit to the Plan.

 
11.2.       ***Authorityto Amend and Procedure***.> 
(a)            The Company reserves the right to amend the Plan at any time,to any extent.  Each amendment must bestated in a written instrument approved in advance or subsequently ratified bythe Company's Board and executed in the name of the Company by a dulyauthorized officer or the Company's Director of Compensation, Benefits &HRIS, and attested by the Secretary or an Assistant Secretary.  On and after the effective date of theamendment, all interested persons will be bound by the amendment; provided,that no amendment will have any retroactive effect so as to deprive anyParticipant, or any Beneficiary of a deceased Participant, of any benefitalready accrued or vested or of any option with respect to the form of suchbenefit that is protected under Code section 411(d)(6), except that anamendment required to qualify the Trust for income tax exemption may beretroactive to the Effective Date of the Plan or to any later date.

 

(b)           If the provisions for determining the extent to which benefitsunder the Plan are vested are changed, whether by amendment or because of thePlan's becoming or ceasing to be a top-heavy plan, each Participant who hascompleted at least three years of Vesting Service may elect to have his or hervested benefits determined without regard to such change by giving writtennotice of such election to the Administrator within the period beginning on thedate such change was adopted (or the Plan's top heavy status changed) andending 60 days after the latest of:  (i)the date such change is adopted; (ii) the date such change becomes effective;and (iii) the date the Administrator issues notice of such change to theParticipant.  

 

(c)            To the extent required by Code section 411(d)(6), eachParticipant may elect to have that portion of his or her Accounts that wasaccrued as of the date an optional form of benefit payment is eliminateddistributed in such optional form.

 

(d)           The provisions of the Plan in effect at the termination of aParticipant's employment will, except as specifically provided in anysubsequent amendment, continue to apply to such Participant.

11.3.       ***Authorityto Terminate and Procedure***. The Company expects to continue the Plan indefinitely but reserves theright to terminate the Plan in its entirety at any time by awritten instrument of termination.  Each Participating Employer expects tocontinue its participation in the Plan indefinitely but reserves the right to cease its participation in the Plan at anytime.  The Plan will terminate in itsentirety as of the date specified by the Company in a written notice adoptedand executed in the manner of an amendment. The Plan will terminate with respect to a Participating Employer as of adate specified in a written instrument approved in advance or ratified by theParticipating Employer's Board and executed in the name of the ParticipatingEmployer by a duly authorized officer.  

 

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11.4.       ***VestingUpon Termination, Partial Termination or Discontinuance of Contributions***.  Upon the termination of the Plan or upon thecomplete discontinuance of contributions, the Accounts of each "affectedemployee" will vest in full.  Forpurposes of this section, "affected employee" means
> 
(a)            a Participant whois actively employed with an Affiliated Organization on the effective date ofthe termination or complete discontinuance of contributions;

 

(b)           a Participant who has terminated employment and has neitherreceived a complete distribution of his or her Account nor experienced at leastfive consecutive One-Year Breaks in Service;

 

(c)            a former Participant who terminated employment during the PlanYear that includes the effective date of the termination or completediscontinuance of contributions.

Upon a partial termination of thePlan, the Accounts of each Participant as to whom the Plan has been partiallyterminated will vest in full.

 
11.5.       ***DistributionFollowing Termination, Partial Termination or Discontinuance of Contributions***.  After termination or partial termination ofthe Plan or the complete discontinuance of contributions under the Plan, theTrustee will continue to hold and distribute the Fund as if such event had notoccurred, but if the Administrator so directs in accordance with TreasuryRegulations, the Trustee will distribute to each Participant the entire balanceof his or her Accounts.

# *ARTICLE12.*PLAN ADMINISTRATION

12.1.       ***Administrator,Named Fiduciary*.**** **The Company is the "named fiduciary"of the Plan for purposes of ERISA.  
 
12.2.      ***Committee***> 
(a)            The general administration of the Plan and the duty to carryout its provisions is vested in a Committee composed of not fewer than threemembers who will serve at the pleasure of the Company's Board.  One member of the Committee will be the headof the Company's human resources function, a second member of the Committeewill be the head of the Company's financial function and a third member of theCommittee will be the head of the Company's treasury function. Additionalmembers may be appointed to the Committee by the Company's Board to serve atits pleasure. Each such additional member will file written acceptance of hisor her appointment with the Company's Board. A Committee member may resign by delivering his or her writtenresignation to the Company's Board, and any Committee member may be removed,with or without cause, by the Company's Board upon delivery of written noticeof such removal to the removed member. Any such resignation or removal will be effective upon delivery of thewritten resignation or notice of removal, as the case may be, or upon any laterdate specified therein.  Vacanciescreated by any such resignation or removal will be filled by appointment by theCompany's Board; provided, that, subject to there being at least three personsserving as Committee members at all times, the Company's Board need not fillany vacancy so created.

 

(b)           In addition to its general duties and power and authority inconnection with the administration of the Plan, the Committee has thediscretionary power and authority with respect to -
(i)              The selection, designation and removal of the Administrator, the Trustee and anyinvestment managers of the Fund;  
(ii)              The direction of investments of assets comprising the Fund in  insurance-company issued deposit administration or similar group annuity  contract or contracts; and 

(iii)           In the caseof any investment fund maintained pursuant to Section 5.1 the assets of whichare primarily invested in one or more insurance company issued depositadministration or group annuity contracts, to determine, from time to time, theportion of such investment fund, if any, that will not be invested in suchinsurance-company issued contracts and to direct the Trustee as to the specificinvestments or types of investments with respect to such portion of suchinvestment fund; provided, that nothing contained in this clause (iii) requiresthe Committee to exercise such power or authority or limits the power orauthority of the Committee to delegate any such duties to the Administrator, theTrustee or any investment manager. 
(c)            The Committee will perform its duties in accordance with thefollowing procedures.(i)              The head of the Company's human resources function will act as the chair of theCommittee and will preside over the Committee's meetings.  
(ii)              The Committee will designate the head of the Company's human resources  function, or such other person as it may determine, to serve as Administrator  pursuant to Section 12.3, and may from time to time revoke such designation  and designate another person to serve as Administrator. Each such designation  must be in writing, and a copy of the designation must be furnished to the  Administrator and the Trustee.  The person designated to act as  Administrator must file a written acceptance with the Committee.  Such  person's duty hereunder will terminate upon revocation of such designation by  the Committee or upon resignation as Administrator by the person so  designated. Such revocation or resignation must be in writing and will be  effective upon delivery thereof to the Administrator or the Committee as the  case may be, and in either case to the Trustee. 

(iii)           TheCommittee will elect a secretary who may, but need not, be a member of theCommittee.  The secretary will keep minutes of the Committee's meetings andperform such other duties as may be specified from time to time by theCommittee. 

(iv)           TheCommittee may appoint such subcommittees with such duties and powers as it mayspecify, and it may delegate administrative powers to one or more of its membersor to such other person or entity as it may designate. 

(v)            The Committee will meet at such times and places and upon such notice as itsmembers may determine from time to time.  A majority of the currentmembership of the Committee will constitute a quorum for the transaction ofbusiness, and all acts of the Committee at any meeting will require, for theirvalidity, the affirmative vote of a majority of the current membership of theCommittee.  The Committee may act without a meeting by the writtenauthorization of a majority of the members of the Committee. 

(vi)           TheCommittee may adopt bylaws for the conduct of its business, provided such bylawsare not inconsistent with the provisions of this article. 

(vii)         No member of theCommittee may vote with respect to a decision of the Committee relating solelyto his or her own participation or benefit under the Plan. 

12.3.       ***AdministrativeDuties***.  To the extentapplicable to their respective administrative duties, the Committee and theAdministrator have the discretionary power and authority, and theresponsibility, to:> 
(a)            Adopt rules, regulations and procedures not inconsistent withthe provisions of the Plan and uniform and equitable with respect toindividuals determined by the Administrator to be similarly situated at thetime in question, and to revoke or modify such rules and regulations at anytime;

 

(b)           Interpret, construe, apply and enforce the provisions of thePlan and any Plan Rules, including the discretionary and final power andauthority to interpret, construe, apply and enforce uncertain provisions of thePlan or Plan Rules, and remedy possible ambiguities, inconsistencies, omissionsand errors, and any such action taken by the Committee or the Administrator ingood faith is binding upon all Participants, Beneficiaries, alternate payeesand other interested persons;

 

(c)            Determine from time to time the status of all Employees,Qualified Employees, Participants, Beneficiaries, alternate payees and otherinterested persons for purposes of the Plan; 

 

(d)           Determine the rights of Employees, Qualified Employees,Participants, Beneficiaries, alternate payees and other interested persons tobenefits under the Plan, the amount and the method and time or times of paymentof the benefit; and

 

(e)            Take any other actions determined by the Committee or theAdministrator to be necessary or advisable to in connection with the administrationof the Plan.

12.4.       ***Delegation***.  Except as otherwise provided in ERISA, theAdministrator may delegate specific duties and responsibilities, includingfiduciary duties and responsibilities. Such delegations may be to Employees or to other individuals,committees orentities.  Any delegation may, ifspecifically stated, allow further delegations by the individual, committee orentity to whom or which the delegation has been made subject to and inaccordance with any limitations, restrictions or conditions specified in thedelegation or in any other written instrument provided by the Administrator tothe individual, committee or entity to whom or which the delegation has beenmade.  Any delegation may be rescinded bythe Administrator at anytime.  Each individual, committee orentity to whom or which a fiduciary duty or responsibility has been delegatedis responsible for the exercise of such duties or responsibilities and is notresponsible for the acts or failure to act of any other fiduciary.  Any delegation by the Administrator of afiduciary duty or responsibility, other than to a person for whose conduct theAdministrator remains responsible, must be in writing, and the individual,committee or entity to whom or which the delegation is made must submit awritten acceptance of the delegation to the Administrator.  Anydelegate's duty will terminate upon withdrawal of such authority by theAdministrator or upon withdrawal of the delegate's acceptance.  Any delegation to an Employee willautomatically terminate when he or she ceases to be an Employee.

 

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12.5.       ***Reportsand Records***.  TheAdministrator and those individuals, committees or entities towhom or which theAdministratorhas delegated fiduciary duties will keep records of all their proceedings andactions, and will maintain all such books of account, records and other data asnecessary for the proper administration of the Plan and to comply withapplicable law.  

 

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12.6.       ***Compensation***.  No employee of an Affiliated Organizationacting in a fiduciary capacity will be entitled to receive compensation fromthe Trust for such services, but each will be entitled to reimbursement from the Trust for all sums reasonably andnecessarily expended in the performance of such duties.

 

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12.7.       ***ProfessionalAssistance***.  TheCommittee and the Administrator may retain such accounting, recordkeeping,legal, clerical and other services as may reasonably be required in theadministration of the Plan, and may pay reasonable compensation from the Fundfor such services or may reimburse the Company from the Fund for reasonablecompensation paid by the Company for such services.  The Committee and the Administrator are entitled to relyconclusively on all tables, valuations, certificates, opinions and reports furnishedto them by such persons and on all information, elections and designationsfurnished to them by Participants, Beneficiaries, alternate payees andParticipating Employers.

 

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12.8.       ***Paymentof Administrative Costs***. All costs of administering the Plan may be paid by the Trustee from theTrust, but if not so paid, will be paid by the Company.

 

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12.9.       ***Indemnification***.

## 

> 
(a)            To the extent permitted by law, the Participating Employersjointly and severally agree to indemnify and hold harmless the Administrator,the members of any fiduciary committee and other employees, officers ordirectors of an Affiliated Organization to whom fiduciary duties are delegatedagainst any and all claims, losses, damages, expenses and liabilities arisingfrom their responsibilities in connection with the Plan which are not coveredby insurance (without recourse) paid for by the Participating Employers orotherwise paid or reimbursed, unless they are determined to be due to grossnegligence or intentional misconduct. The Company has the right, but not the obligation, to select counsel andcontrol the defense and settlement of any action for which an individual may beentitled to indemnification pursuant to this section.

 

(b)           An individual's right to indemnification pursuant to thissection is in addition to, and independent of, the individual's right, if any,to indemnification pursuant to a Participating Employer's articles ofincorporation or bylaws (or comparable governing instruments), applicable lawor otherwise, but an individual is not entitled to indemnification from allsources in an amount that exceeds his or her claims, losses, damages, expensesand liabilities.

12.10.    ***ClaimsProcedure***.  

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> 
(a)            The Administrator will notify a Participant in writing, within90 days of the Participant's written application for benefits, of theParticipant's eligibility or noneligibility for benefits under the Plan.  If the Administrator determines that aParticipant is not eligible for benefits or full benefits, the notice will: 

 

(i) state the specific reasons for the denial of any benefits; 

 

(ii) provide a specific reference to the provision of the Plan on  which the denial is based; 

 

(iii) provide a description of any additional information or  material necessary for the claimant to perfect the claim, and a description of  why it is needed; and 

 

(iv) provide an explanation of the Plan's claims review procedure  and other appropriate information as to the steps to be taken if the  Participant wishes to have the claim reviewed.  If the Administrator  determines that there are special circumstances requiring additional time to  make a decision, the Administrator will notify the Participant of the special  circumstances and the date by which a decision is expected to be made, and may  extend the time for up to an additional 90-day period.  

(b)           If a Participant is determined by the Administrator not to beeligible for benefits or if the Participant believes that he or she is entitledto greater or different benefits, the Participant will be provided theopportunity to have his or her claim reviewed by the Administrator by filing apetition for review with the Administrator within 60 days after the Participantreceives the notice issued by the Administrator.  The petition must state the specific reasons the Participantbelieves he or she is entitled to benefits or greater or different benefits.  Within 60 days after the Administratorreceives the petition, the Administrator will give the Participant (and his or her counsel, if any) anopportunity to present his or her position to the Administrator orally or inwriting, and the Participant (or his or her counsel) may review the pertinentdocuments, and the Administrator will notify the Participant of its decision inwriting within said 60-day period, stating specifically the basis of thedecision written in a manner calculated to be understood by the Participant andthe specific provisions of the Plan on which the decision is based.  If, because of the need for a hearing, the60-day period is not sufficient, the decision may be deferred for up to another60-day period at the election of the Administrator, but notice of this deferralmust be given to the Participant.  

 

(c)            In the event of the death of a Participant, the same procedureapplies to the Beneficiary of the Participant.  

 

(d)           A claimant must exhaust the procedure described in thissection before pursuing the claim in any other proceeding.

12.11.    ***Disputes***. 

## 

> 
(a)            A Participant, Beneficiary or alternate payee may not commencea civil action pursuant to ERISA section 502(a)(1), with respect to a benefitunder the Plan after the earlier of:

(i)             three years after the occurrence of the facts or circumstancesthat give rise to or form the basis for such action; and

(ii)           one yearfrom thedate the Participant, Beneficiary or alternate payee had actual knowledge ofthe facts or circumstances that give rise to or form the basis for such action.
(b)           In the case of a dispute between a Participant, Beneficiary,alternate payee or other person claiming a right or entitlement pursuant to thePlan and a Participating Employer, the Administrator, the Committee or otherperson relating to or arising from the Plan, the United States District Courtfor the District of Minnesota is a proper venue.  Regardless of where an action relating to or arising from thePlan is pending, the law as stated and applied by the United States Court ofAppeals for the Eighth Circuit or the United States District Court for theDistrict of Minnesota will apply to and control all actions relating to thePlan brought against the Plan, a Participating Employer, the Administrator, theCommittee or any other person or against any Participant, Beneficiary,alternate payee or other person claiming a right or entitlement pursuant to thePlan.

12.12.    ***Correctionof Errors***.  If theAdministrator determines that, by reason of administrative error or other causeattributable to a Participating Employer, the Account of any Participant hasincurred a loss, the Administrator may enter into an agreement with theParticipating Employer under which the Account is fully restored and may, uponsuch restoration, release the Participating Employer from furtherresponsibility.

 

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12.13.   ***Standards for Elections, Directions and Similar Actions***.  Any election, direction, application,designation or similar action required of a Participant, Beneficiary oralternate payee (or any person claiming by, through or on behalf of aParticipant, Beneficiary or alternate payee) pursuant to the Plan must be madein accordance with and is subject to the terms of the Plan and Plan Rules.

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# *ARTICLE13.*Miscellaneous

13.1.       ***Merger,Consolidation, Transfer of Assets***. If this Plan is merged or consolidated with, or his or her assets orliabilities are transferred to, any other plan, each Participant will beentitled to receive a benefit immediately after such merger, consolidation ortransfer (if such other plan were then terminated) that is equal to or greaterthan the benefit he or she would have been entitled to receive immediatelybefore such merger, consolidation or transfer (if this Plan had then terminatedbut without regard to Section 11.4).

 

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13.2.       ***LimitedReversion of Fund***.

## 

> 
(a)            Except as provided in Subsection (b), no corpus or income ofthe Trust will at any time revert to any Affiliated Organization or be usedother than for the exclusive benefit of Participants and their Beneficiaries bypaying benefits and administrative expenses of the Plan.

 

(b)           Notwithstanding any contrary provision in the Plan:

(i)             All contributions made by a Participating Employer to the Trustee prior to theinitial determination of the Internal Revenue Service as to qualification of thePlan under Code section 401(a) and the tax exempt status of the Trust under Codesection 501(a) will be repaid by the Trustee to the Participating Employer, uponthe Participating Employer's written request, if the Internal Revenue Servicerules that the Plan is not qualified or the Trust is not tax exempt; provided,that the Participating Employer must request such determination within areasonable time after adoption of the Plan and the repayment by the Trustee tothe Participating Employer must be made within one year after the date of denialof qualification of the Plan; and 

(ii)           To the extent a contribution is made by a Participating Employer by a mistake offact or a deduction is disallowed a Participating Employer under Code section404, the Trustee will repay the contribution to the Participating Employer uponthe Participating Employer's written request; provided, that such repayment mustbe made within one year after the mistaken payment is made or the deduction isdisallowed, as the case may be.  Each contribution to the Plan by aParticipating Employer is expressly conditioned on such contribution's beingfully deductible by the Participating Employer under Code section 404. 

13.3.       ***Top-HeavyProvisions***.> (a)            The provisions of this subsection will apply for any Plan Yearduring which the Plan is "top heavy."(i)             Notwithstanding the provisions of Article 3, no contributionswill be made and allocated on behalf of any "key employee" for anyPlan Year during which the Plan is top heavy unless the amount of contributions(excluding 401(k) Contributions) made and allocated for such Plan Year onbehalf of each Participant who is not a key employee and who is employed withan Affiliated Organization on the last day of the Plan Year, expressed as apercentage of the Participant's Testing Wages for the Plan Year, is at least equalto the lesser of:    (1)           three percent; or
(2)           the largest percentage of such Testing Wages at whichcontributions (including 401(k) Contributions) are made and allocated on behalfof any key employee for such Plan Year.
(ii)           If, in addition to this Plan, an Affiliated Organizationmaintains another qualified defined contribution plan or one or more qualifieddefined benefit pension plans during a Plan Year, the provisions of clause (i)will be applied for such Plan Year:    (1)           by taking into account the employer contributions (other thanelective deferrals for a non-key employee) on behalf of the Participant underall such defined contribution plans; and
(2)           without regard to any Participant who is not a key employeeand whose accrued benefit, expressed as a single life annuity, under a definedbenefit pension plan maintained by the Affiliated Organization for such PlanYear is not less than the product of

(A)          the Participant's average Testing Wages for the period ofconsecutive years not exceeding the period of consecutive years (not exceedingfive) when the Participant had the highest aggregate Testing Wages,disregarding years in which the Participant completed less than 1000 Hours ofService, multiplied by

 

(B)          the lesser of (I) two percent per year of service,disregarding years of service beginning after the close of the last Plan Yearin which such defined benefit plan was a top heavy plan or (II) 20 percent.
(iii)         Notwithstanding Section 7.1(h), each Participant's vestednonforfeitable interest in the portion of his or her Profit SharingContribution Account not described in Section 7.1(a) to the extent provided inthe following schedule:

| Full Years of Vesting Service

Less than Three Years  Three or More Years | VestedInterest  0   %  100% |
|---------------------------------------------------------------------------|---------------------------------------|

If the Plan ceases to be a topheavy plan, the portion of a Participant's Profit Sharing Contribution Accountthat has vested pursuant to the foregoing schedule will remain nonforfeitable,notwithstanding the subsequent application of the vesting schedule set forth inSection 7.1(h) to amounts subsequently allocated to the Account.
> (b)           For purposes of Subsection (a),(i)                  (1)           The Plan will be a "top-heavy plan" for a particularPlan Year if, as of the last day of the initial Plan Year or, with respect toany other Plan Year, as of the last day of the preceding Plan Year, theaggregate of the Account balances of key employees is greater than 60 percentof the aggregate of the Account balances of all Participants.
(2)           For purposes of calculating the aggregate Account balances forboth key employees and employees who are not key employees:

(A)          Any distributions made within the five-year period precedingthe Plan Year for which the determination is being made, other than adistribution transferred or rolled over to a plan maintained by an AffiliatedOrganization, will be included;

 

(B)          Amounts transferred or rolled over from a plan not maintainedby an Affiliated Organization at the initiation of the Participant will beexcluded;

 

(C)          The Account balances of any key employee and any employee whois not a key employee who has not performed an Hour of Active Service at anytime during the five-year period ending on the date as of which thedetermination is being made will be excluded; and

 

(D)          The terms "key employee" and "employee"include the Beneficiaries of such persons who have died.

> (ii)                (1)           Notwithstanding the provisions of clause (i), this Plan willnot be a top-heavy plan if it is part of either a "required aggregationgroup" or a "permissive aggregation group" and such aggregationgroup is not top-heavy.  An aggregationgroup will be top-heavy if the sum of the present value of accrued benefits andaccount balances of key employees is more than 60 percent of the sum of thepresent value of accrued benefits and account balances for all Participants,such accrued benefits and account balances being calculated in each case in thesame manner as set forth in clause (i).
(2)           Each plan in a required aggregation group will be top-heavy ifthe group is top-heavy.  No plan in arequired aggregation group will be top-heavy if the group is not top-heavy.

(3)           If a permissive aggregation group is top-heavy, only thoseplans that are part of an underlying top-heavy, required aggregation group willbe top-heavy. No plan in a permissive aggregation group will be top-heavy ifthe group is not top-heavy.
(iii)          The "requiredaggregation group" consists of (1) each plan of an Affiliated Organization inwhich a key employee participates and (2) each other plan of an AffiliatedOrganization that enables a plan in which a key employee participates to meetthe nondiscrimination requirements of Code sections 401(a)(4) or 410.  
(iv)          A "permissive  aggregation group" consists of those plans that are required to be aggregated  and one or more plans (providing comparable benefits or contributions) that  are not required to be aggregated, which, when taken together, satisfy the  requirements of Code sections 401(a)(4) and 410.

 (v)           For purposes of applying clauses (ii), (iii) and (iv) of this Subsection (b),any qualified defined contribution plan maintained by an Affiliated Organizationat any time within the five-year period preceding the Plan Year for which thedetermination being made which, as of the date of such determination, has beenformally terminated, has ceased crediting service for benefit accruals andvesting and has been or is distributing all plan assets to participants or theirbeneficiaries, will be taken into account to the extent required or permittedunder such clauses and under Code section 416. 
(c)            A "key employee" is any individual who is or wasemployed with an Affiliated Organization and who, at any time during the PlanYear in question or any of the preceding four Plan Years is or was:(i)             An officer of the Affiliated Organization (an administrativeexecutive in regular and continued service with the Affiliated Organization)whose Section 415 Wages for such Plan Year exceed 50 percent of the amount ineffect under Code section 415(b)(1)(A) for such Plan Year, but in no case willthere be taken into account more than the lesser of (a) 50 persons, or (b) thegreater of (i) three persons or (ii) ten percent of the number of the AffiliatedOrganization's employees, excluding for purposes of determining the number ofsuch officers, any employees described in Code section 414(q)(5);
(ii)            Theowner of an interest in the Affiliated Organization that is not less than theinterest owned by at least ten other persons employed with the AffiliatedOrganization; provided, that, such owner will not be a key employee solely byreason of such ownership for a Plan Year if he or she does not own more thanone-half of one percent of the value of the outstanding interests of theAffiliated Organization or if the amount of his or her Section 415 Wages forsuch Plan Year is less than the amount in effect under Code section 415(c)(1)(A)for such Plan Year; 

(iii)          The owner of morethan five percent of the Affiliated Organization's outstanding stock or morethan five percent of the total combined voting power of the AffiliatedOrganization's stock; or

 (iv)          The owner ofmore than one percent of the Affiliated Organization's outstanding stock or morethan one percent of the total combined voting power of the AffiliatedOrganization's stock, whose Section 415 Wages for such Plan Year exceed$150,000. 

For purposes of this Subsection (c), ownership of anAffiliated Organization's stock will be determined in accordance with Codesection 318; provided, that subparagraph 318(a)(2)(C) will be applied bysubstituting the phrase "5 percent" for the phrase "50 percent"wherever it appears in such Code section.

13.4.      ***Qualified Military Service*.**> 
(a)            The provisions of this section apply only to an Employee whois reemployed on or after December 12, 1994 and whose reemployment rights areprotected under the Uniformed Services Employment and Reemployment Rights Actof 1994 ("USERRA") and are intended to comply with the requirementsof Code section 414(u).

 

(b)           Notwithstanding any other provisions of the Plan to thecontrary, a Qualified Employee who leaves the employ of a ParticipatingEmployer for qualified military service and returns to employment with aParticipating Employer will be entitled to the restoration of benefits underthe Plan which would have accrued but for the Qualified Employee's absence dueto qualified military service.  

 

(c)            A Qualified Employee may make 401(k) Contributions andAfter-Tax Contributions for the Plan Years during which he or she would havebeen an Active Participant but for his or her qualified military service inaccordance with Sections 3.1 and 3.2 and the following additional rules:

(i)             the Qualified Employee may elect to make 401(k) Contributionsand After-Tax Contributions, subject to the maximums in effect pursuant toSections 3.1 and 3.2 during the period of qualified military service;

 

(ii)           the Qualified Employee may make the election described inclause (i) at any time during the period that begins on his or her date ofreemployment and has the same length as the lesser of five years or the periodof the Qualified Employee's qualified military service multiplied by three; 

 

(iii)         the 401(k) Contributions and After-Tax Contributions under this subsection arenot subject to the limitations described in Section 9.2, 9.3 or 9.4. 

(d)           A Qualified Employee's Participating Employer will makeMatching Contributions with respect to the Qualified Employee's 401(k)Contributions pursuant to Subsection (c) in the same amount as if such 401(k)Contributions had actually been made during the Participant's period ofqualified military service.  TheMatching Contributions made pursuant to this subsection are not subject to thelimitations described in Section 9.3 or 9.4.

 

(e)            The following additional rules and conditions apply withrespect to qualified military service notwithstanding any contrary provision ofthe Plan:

(i)             an Employee will not be treated as having incurred a Break in Service by reasonof his or her qualified military service; 

 

(ii)           any period of qualified military service will be counted as Vesting Service; 

 

(iii)         for purposes of determining the Qualified Employee's Eligible Earnings andSection 415 Wages, the Qualified Employee will be treated as receivingcompensation from the Participating Employer with whom he or she was employedimmediately before the period of qualified military service during the period ofqualified military service in an amount equal to the compensation he or shewould have received during such period if he or she were not in qualifiedmilitary service determined based on the rate of pay the Qualified Employeewould have received from the Participating Employer but for the absence due toqualified military service; provided, however, if the compensation the QualifiedEmployee would have received from the Participating Employer is not reasonablycertain, then the Qualified Employee's rate of compensation will be equal to hisor her average compensation for the 12-month period preceding the qualifiedmilitary service (or, if shorter, the period of employment immediately precedingthe qualified military service); 

 

(iv)         contributions on behalf or by the Qualified Employee will be subject to thelimitations in Sections 9.1 and 9.6 with respect to the Plan Years to which suchcontributions relate in accordance with Treasury Regulations; 

 

(v)           the Qualified Employee will not be entitled to any crediting of earnings oncontributions for any period prior to actual payment to the Trust; and 

 

(vi)         the Qualified Employee will not be entitled to restoration of any forfeitureswhich were not allocated to his or her Account as a result of his or herqualified military service. 
(f)             For purposes of this section, "qualified military service"means any service in the uniformed services as defined in USERRA by a QualifiedEmployee who is entitled to reemployment rights with a Participating Employerunder USERRA.

13.5.       ***ShortPlan Years***.  To the extentrequired by and in accordance with Treasury Regulations, for any Plan Year thatis less than 12 months long, the dollar limitations in effect for purposes ofCode sections 401(a)(17), 414(q), 415 and 416 will be adjusted to reflect theshort Plan Year.

# *ARTICLE14.*Construction,Interpretations AND DEFINITIONS

14.1.       ***Constructionand Interpretations***.  Therules of construction and interpretations set forth in this section apply inconstruing this instrument unless the context otherwise indicates.> (a)            ***Consent of Spouse***. Whenever the consent of a Participant's spouse is required with respectto any act of the Participant, such consent will be deemed to have beenobtained only if:(i)             the Participant's spouse executes a written consent to such act, which consentacknowledges the effect of such act and is witnessed by a Plan representative ora notary public; or  
(ii)            the  Administrator determines that no such consent can be obtained because the  Participant has no spouse, because the Participant's spouse cannot be located,  or because of such other circumstances as may, under Treasury Regulations,  justify the lack of such consent. 

Any such consent by theParticipant's spouse or such determination by the Administrator that suchspouse's consent is not required is effective only with respect to theparticular spouse of the Participant who so consented or with respect to whomsuch determination was made.  Any suchconsent by the Participant's spouse to an act of the Participant under the Planis irrevocable with respect to that act.
> 
(b)           ***Governing Law***. To the extent that state law is not preempted by provisions of ERISA orany other laws of the United States, this Plan will be administered, construed,and enforced according to the internal, substantive laws of the State ofMinnesota, without regard to its conflict of laws rules.

 

(c)            ***Headings***.  Theheadings of articles and sections are included solely for convenience.  In the case of a conflict between a headingand the text of the Plan, the text controls.

 

(d)           ***No Employment Rights Created***.  The establishment and maintenance of the Plan neither gives anyEmployee a right to continuing employment nor limits the right of an AffiliatedOrganization to discharge or otherwise deal with the Employeewithout regard to the effect such action might have on his or her initial orcontinued participation in the Plan.

 

(e)            ***Number and Gender***. Wherever appropriate, the singular number may be read as the plural, theplural may be read as the singular, and the masculine gender may be read as thefeminine gender.

 

(f)             ***Special Provisions***. Special provisions of the Plan applicable only to certain Participantswill be set forth on an exhibit to the Plan.  In the event of a conflict between the terms of the exhibit andthe terms of the Plan, the exhibit controls.

14.2.       
***Account***.  An "Account" with respect to aParticipant is any or all of the accounts maintained on his or her behalfpursuant to Section 4.1, as the context requires.

***ActiveParticipant***.  An "ActiveParticipant" is a Participant who is a Qualified Employee.

***Administrator***.  The "Administrator" of the Plan isthe Company or any individual or committee towhom or to which administrative duties are delegated by the Company withrespect to the delegated duties.

***AffiliatedOrganization***.  An "AffiliatedOrganization" is the Company and any other corporation that is a member ofa controlled group of corporations (within the meaning of Code section 1563(a)without regard to Code sections 1563(a)(4) and 1563(e)(3)(C)) that includes theCompany, any trade or business (whether or not incorporated) that together withthe Company is under common control (within the meaning of Code section414(c)), any member of an "affiliated service group" (within themeaning of Code section 414(m)) of which the Company is a member or any otherorganization that, together with the Company, is treated as a single employerpursuant to Code section 414(o) and Treasury Regulations thereunder; provided,that, for purposes of applying the limitations set forth at Section 9.6, suchdetermination under Code section 1563(a) will be made by substituting thephrase "more than 50 percent" for the phrase "at least 80percent" wherever it appears in such Code section.

***After-TaxContribution Account***.  The "After-TaxContribution Account" is the account established pursuant to Section4.1(a)(ii).

***After-TaxContributions***.  "After-TaxContributions" means contributions made by an Active Participant pursuantto Section 3.2.

***Beneficiary***.  A "Beneficiary" is a persondesignated or otherwise determined under the provisions of Section 8.2 as thedistributee of benefits payable after the death of a Participant.  A person designated as, or otherwisedetermined to be, a Beneficiary under the terms of the Plan has no interest inor rights under the Plan until the Participant in question has died.  A Beneficiary will cease to be such on the day on which allbenefits to which he, she or it is entitled under the Plan have beendistributed.

***Board***.  The "Board" is the board ofdirectors or comparable governing body of the Affiliated Organization inquestion.  When the Plan provides for anaction to be taken bytheBoard, the action may be taken by any committee or individual authorized totake such action pursuant to a proper delegation by the board of directors orcomparablegoverningbody in question.

***Code***.  The "Code" is the Internal RevenueCode of 1986, as amended.  Any referenceto a specific provision of the Code includes a reference to such provision, anyvalid ruling, regulation or authoritative pronouncement promulgated thereunder andany provision of future law that amends, supplements or supersedes theprovision.

***Committee***.  The "Committee" is theadministrative committee constituted under Section 12.2.

***Company***.  The "Company" is BMC Industries,Inc. or any successor thereto.

***Company Stock***.  "Company Stock" is the commonstock of the Company.

***Disabled***.  AParticipant will be considered to be "Disabled" only if 

(a)       in the case of a Participant who isparticipating in the Company's long-term disability plan, he or she isreceiving disability benefits under such plan, or

(b)       in the case of any other Participant, heor she is certified as being disabled by the Social Security Administration andis receiving disability benefits under the disability provisions of the SocialSecurity Act.

***Effective Date*.**  The "Effective Date" of the Plan is April 1, 1979.

*EligibleEarnings*.  
> 
(a)            The "Eligible Earnings" of a Participant from aParticipating Employer for any Plan Year for purposes of 401(k) Contributions,After-Tax Contributions and Matching Contributions is the sum of allremuneration paid to the Participant by the Participating Employer for theportion of a Plan Year in which he or she is an Active Participant that isreportable in the "wages, tips, other compensation" box of InternalRevenue Form W-2, increased by amounts that are deferred under Section 3.1 as401(k) Contributions and amounts by which a Participant's compensation from theParticipating Employer for such portion of the Plan Year is reduced under aCode section 125 cafeteria plan or by reason of Code section 132(f)(4).  To the extent otherwise included, EligibleEarnings are determined under this clause (a) by excluding the amount of anyimputed income of the Participant with respect to the portion of the Plan Yearin which he or she is an Active Participant, severance pay of any kind ornature, tuition aid, relocation reimbursement, payments made pursuant to theBMC Industries, Inc. Long-Term Incentive Plan or amounts attributable to astock incentive award (including, but not limited to stock options, stockappreciation rights, restricted stock, performance units or stock bonuses).

 

(b)           The "Eligible Earnings" of a Participant from aParticipating Employer for any Plan Year for the purpose of Profit SharingContributions is:

             (i)        for non-sales personnel -- 

             the Participant'sannual base salary or wages paid to the Participant by the ParticipatingEmployer during the Plan Year, including shift premium, increased by amountspaid to the Participant by the Participating Employer during the Plan Year fortime in excess of straight time but disregarding the portion of such amounts,if any, representing a premium over straight time rates, and

             (ii)       for sales personnel --

             the greater of (A) theParticipant's annual base salary paid by the Participating Employer during thePlan Year, or (B) the lesser of (1) the Participant's annual base salary pluscommissions paid by the Participating Employer during the Plan Year or (2)$60,000.

             To the extentotherwise included, Eligible Earnings are determined under this clause (b) byexcluding severance pay of any kind or nature, tuition aid, relocationreimbursement, payments made pursuant to the BMC Industries, Inc. Long-TermIncentive Plan or amounts attributable to a stock incentive award (including, butnot limited to stock options, stock appreciation rights, restricted stock,performance units or stock bonuses).
> (c)            In no event will a Participant's Eligible Earnings for anyPlan Year be taken into account to the extent it exceeds $150,000 (or suchlarger amount as may be permitted for the calendar year during which such PlanYear begins under Code section 401(a)(17)).

***EligibleRollover Distribution***.  An "EligibleRollover Distribution" is any distribution of all or any portion of thebalance to the credit of the distributee, except that an Eligible RolloverDistribution does not include: any distribution that is one of a series ofsubstantially equal periodic payments (not less frequently than annually) madefor the life (or life expectancy) of the distributee or the joint lives (orjoint life expectancies) of the distributee and the distributee's designatedbeneficiary, or for a specified period of ten years or more; any distributionto the extent such distribution is required under Code section 401(a)(9); theportion of any distribution that is not includable in gross income (determinedwithout regard to the exclusion for net unrealized appreciation with respect toemployer securities); any hardship distribution described in Code section401(k)(2)(B)(i)(IV); and any other amount excepted from the definition of "eligiblerollover distribution" by Code section 402(c)(4).

***Employee***.  An "Employee" is any individualwho performs services for an Affiliated Organization as a common-law employeeof the Affiliated Organization.

***ERISA****. *"ERISA"is the Employee Retirement Income Security Act of 1974, as amended.  Any reference to a specific provision ofERISA includes a reference to such provision, any valid ruling, regulation orauthoritative pronouncement promulgated thereunder and any provision of futurelaw that amends, supplements or supersedes the provision.

***Excess Eligible Earnings***.  The "Excess Eligible Earnings" ofa Participant from a Participating Employer for a Plan Year means the portionof his or her Eligible Earnings from the Participating Employer for the PlanYear, if any, in excess of the contribution and benefit base in effect for thecalendar year during which the Plan Year begins under section 230 of the SocialSecurity Act.

***401(k) Contribution Account***.  The "401(k) Contribution Account"is the account established pursuant to Section 4.1(a)(i). Prior to the Restatement Date, this account was called the "before-taxcontribution account."

***401(k) Contributions***.  "401(k) Contributions" meanscontributions made by Participants pursuant to Section 3.1.  Prior to the Restatement Date, thesecontributions were called "before-tax contributions."

***Fund***.  The "Fund" is the total of all ofthe assets of every kind and nature, both principal and income, held in the Trustat any particular time or, if the context so requires, one or more of theinvestment funds described in Section 5.1.

***HighlyCompensated Employee***.

(a)       A "Highly Compensated Employee"for any Plan Year is any employee who: 
> (i)             at any time during such Plan Year or the 12-month periodpreceding such Plan Year, owns or owned (or is considered as owning or havingowned within the meaning of Code section 318) more than five percent of theoutstanding stock of an Affiliated Organization or stock possessing more thanfive percent of the total combined voting power of all outstanding stock of anAffiliated Organization; or(ii)           during the 12-month period preceding such Plan Year, receivedcompensation in excess of $80,000 (or such dollar amount, adjusted to reflectincreases in the cost of living, as in effect under Code section 414(q)(1)(B)for the calendar year during which the Plan Year in question begins).  
(b)       Forpurposes of this section:

(i)        an "employee" is any individual (other than anindividual who is a nonresident alien who receives no earned income (within themeaning of Code section 911(d)(2)) from an Affiliated Organization thatconstitutes income from sources within the United States (within the meaning ofCode section 861(a)(3))) who, during the Plan Year for which the determinationis being made, performs services for an Affiliated Organization as

(ii)       "compensation" for any period means an employee'sSection 415 Wages for the period.  

(iii)      A former employee of an AffiliatedOrganization shall be treated as a former Highly Compensated Employee of theAffiliated Organization if the former employee was a Highly CompensatedEmployee of the Affiliated Organization when the former employee incurred aTermination of Employment or the former employee was a Highly CompensatedEmployee of the Affiliated Organization at any time after attaining age55.  The determination of who is aformer Highly Compensated Employee is based on the rules applicable todetermining Highly Compensated Employee status as in effect for thatdetermination year in accordance with Section 1.414(q)-1T, Q&A-4 of theTemporary Income Tax Regulations and Notice 97-45 or later guidance under theCode.

***Hourof Active Service***.  An "Hourof Active Service" is an hour for which the Employee is paid, or entitledto payment, for the performance of duties for an Affiliated Organization.

***Hourof Service***. An "Hour of Service" shall have the meaningassigned to it in Section 10.5.

***LeasedEmployee***.  A "LeasedEmployee" is any individual (other than an Employee) who provides servicesfor an Affiliated Organization (or for an Affiliated Organization and "relatedpersons" within the meaning of Code section 144(a)(3)):

(a)       pursuantto an agreement between an Affiliated Organization and any other person;
> 
(b)       under the Affiliated Organization'sprimary direction and control; and

(c)       on a substantially full-time basis for aperiod of at least one year.

***Matching Contribution Account***.  The "Matching Contribution Account" is the accountestablished pursuant to Section 4.1(a)(iii).

***MatchingContributions***.  "MatchingContributions" means contributions made by the Participating Employers onbehalf of Participants pursuant to Section 3.3 or 3.6.

***NormalRetirement Date***.  The "NormalRetirement Date" of a Participant is the date on which he or she attainsage 65.

***One-YearBreak in Service****. *"One-Year Break in Service" isdefined in Section 10.2.

***Participant***.  A "Participant" is a current orformer Qualified Employee who has entered the Plan pursuant to the provisionsof Article 2 and who has not ceased to be a Participant pursuant to theprovisions of Section 2.8.

***Participating Business Unit***.  A "Participating Business Unit" isa division, work location or other operational unit of a ParticipatingEmployer, the eligible employees of which have been designated by theParticipating Employer to participate in the Plan, as communicated in writingto the Company by the Participating Employer's Board.

***ParticipatingEmployer***.  A "ParticipatingEmployer" is the Company and any other Affiliated Organization that hasadopted the Plan, or all of them collectively, as the context requires, andtheir respective successors.  AnAffiliated Organization will cease to be a Participating Employer upon atermination of the Plan as to its Qualified Employees or upon its ceasing to bean Affiliated Organization.

***Plan***.  The "Plan" is that set forth inthis instrument as it may be amended from time to time.  

***PlanRule***.  A "Plan Rule"is a rule, policy, practice or procedure adopted by the Administrator.  

***PlanYear***.  A "Plan Year"is the 12-month period beginning on each January 1 and ending on the firstfollowing December 31.

***Profit SharingContribution Account***.  The "ProfitSharing Contribution Account" is the account established pursuant toSection 4.1(a)(iv).

***Profit SharingContributions***.  "Profit SharingContributions" means contributions made by the Participating Employers onbehalf of Participants pursuant to Section 3.4 or 3.6.

***Profit Sharing PlanRollover Account.***  The "ProfitSharing Plan Rollover Account" is the account established pursuant toSection 4.1(a)(vi).

***QualifiedEmployee***.** **

(a)       Except as provided in Subsection (b), a "QualifiedEmployee" is an Employee who 

(i)        performs services for a ParticipatingBusiness Unit as an employee of a Participating Employer (as classified by theParticipating Employer at the time the services are performed without regard toany subsequent reclassification); or 

(ii)       is paid by a Participating Employer on aUnited States payroll while on a temporary foreign assignment as an employee ofP.T. Vision-Ease Asia.

(b)       An Employee who would otherwise be aQualified Employee is not a Qualified Employee if he or she:

(i)        is a nonresident alien who receives noearned income (within the meaning of Code section 911(d)(2) from aParticipating Employer that constitutes income from sources within the UnitedStates (within the meaning of Code section 861(a)(3)); or

(ii)       is covered by a collective bargainingagreement, for whom retirement benefits were the subject of good faithbargaining between such person's representative and a Participating Employer,and is not, as a result of such bargaining, specifically covered by this Plan;or

(iii)      is working in the United States on atemporary foreign assignment; or 

(iv)      is a Leased Employee.

(c)       An individual who is classified by a Participating Employer asan independent contractor, Leased Employee or as any other status in which the individualis not classified by the Participating Employer as a common-law employee of theParticipating Employer at the time services are performed is not a QualifiedEmployee.  No judicial or administrativereclassification, or reclassification by the Participating Employer, will beapplied to grant retroactive eligibility to any individual under the Plan.

***RestatementDate***.  The "RestatementDate" of the Plan is January 1, 2001, or such earlier date as specified inthe Addendum.

***RolloverAccount***.  The "RolloverAccount" is the account established pursuant to Section 4.1(a)(v).

***Section415 Wages***.  

(a)       An individual's "Section 415 Wages"for any period is his or her "compensation," within the meaning ofCode section 415(c)(3) and Treasury Regulations thereunder, for the period fromall Affiliated Organizations.

(b)       The Administrator may, for any period,determine the items of remuneration that, in accordance with TreasuryRegulations, will be included in Section 415 Wages for such period; providedthat for each purpose under this Plan, the Administrator's determination willbe uniform throughout any period.

(c)       An individual's "Section 415 Wages"for any period shall include elective contribution pursuant to a qualified cashor deferred arrangement, otherwise payable to the individual by an AffiliatedOrganization, and other amount that are not includible in the individual'sgross income by reason of Code section 125, 132(f)(4) or 457.

***Terminationof Employment***.

(a)       For purposes of the Plan, a Participantwill be deemed to have terminated employment only if he or she has completelysevered his or her employment relationship with all Affiliated Organizations orbecome Disabled.  Neither transfer ofemployment among Affiliated Organizations nor absence from active service byreason of disability leave, other than in connection with a Participantbecoming Disabled, or any other leave of absence will constitute a Terminationof Employment.

(b)       A Participant will be deemed to haveterminated employment in conjunction with the disposition of all or any portionof the business operation of an Affiliated Organization which is a dispositionof a subsidiary or of substantially all of the assets used in a trade orbusiness of an Affiliated Organization within the meaning of Code section401(k)(10)(A) with respect to which the requirements of Code section401(k)(10)(B) and (C) are satisfied.

(c)       A Participant who, in conjunction withthe disposition of all or any portion of a business operation of an AffiliatedOrganization which is not described in Subsection (b), transfers employment tothe acquirer of such business operation or to any affiliate of such acquirerwill not be considered to have terminated employment.  If a Participant is deemed to have continued employment by reasonof the preceding sentence, such sentence will continue to apply to suchParticipant in the event of any subsequent transfer of employment inconjunction with the disposition of all or any portion of a business operationof the initial acquirer or any subsequent acquirers which is not a dispositionof a subsidiary of such acquirer or of substantially all of the assets used ina trade or business of such acquirer within the meaning of Code section401(k)(10)(A) with respect to which the requirements of Code section401(k)(10)(B) and (C) are satisfied. Except in conjunction with such a disposition of a subsidiary orsubstantially all of the assets used in a trade or business of the seller, sucha Participant will be considered to have terminated employment only when he orshe has severed the employment relationship with all such acquirers and theiraffiliates.

***Testing Wages***.  

(a)       An individual's "TestingWages" for any Plan Year is his or her Section 415 Wages for the PlanYear.

(b)       Notwithstanding Subsection (a), in noevent will a person's Testing Wages for any Plan Year be taken into account tothe extent it exceeds $150,000 (or such other larger amount as may be permittedfor the calendar year during which such Plan Year begins under Code section 401(a)(17)).

(c)       The Administrator may, for any Plan Year,adopt any alternative definition of Testing Wages that complies with Codesection 414(s) and Treasury Regulations thereunder; provided, that for eachpurpose under this Plan, the definition so adopted will be uniform throughoutany Plan Year.

***TreasuryRegulations***.  "TreasuryRegulations" mean regulations, rulings, notices and other promulgationsissued under the authority of the Secretary of the Treasury that apply to, ormay be relied upon in the administration of, this Plan.

***Trust***.  The "Trust" is that created forpurposes of implementing benefits under the Plan.

***Trustee***.  The "Trustee" is the corporationand/or individual or individuals who from time to time is or are the dulyappointed and acting trustee or trustees of the Trust.

***Vesting Service***.  "Vesting Service" is defined inSection 10.1. 

**BMCINDUSTRIES, INC.SAVINGS AND PROFIT SHARING PLAN**

**2001 Revision**

**ADDENDUM**

** **

**SPECIAL EFFECTIVEDATES**

** **

Thefollowing Plan provisions are effective prior to the Restatement Date:

 

***Definitions***

Effectiveon or after January 1, 2000, the definition of "Eligible Earnings" inSection 14.2 of the Plan shall include elective amounts that are not includiblein the gross income of the Employee by reason of Code section 132(f)(4).

Thedefinition of "Eligible Rollover Distribution" in Section 14.2 of thePlan is effective for Plan Years beginning on or after January 1, 1999.

Thedefinition of "Highly Compensated Employee" in Section 14.2 of thePlan is effective for Plan Years beginning on or after January 1, 1997.

Thedefinition of "Leased Employee" in Section 14.2 of the Plan iseffective for Plan Years beginning on or after January 1, 1997.

 Thedefinition of "Section 415 Wages" in Section 14.2 of the Plan isgenerally effective for Plan Years beginning on and after January 1, 1998.  Effective for Plan Years beginning on andafter January 1, 2001, the definition of "Section 415 Wages" shallinclude elective amounts that are not includable in the gross income of the Employeeby reason of Code section 132(f)(4). 

 

***ADP/ACP Testing***

The actual deferral percentage test under Section9.2(a)(i) and the actual contribution percentage test under Section 9.3(a)(i).were applied using the prior year testing methodfor the following Plan Years: 1999 and 2000.  

Sections9.2(d) and 9.3(c) of the Plan regarding return of excess elective contributionsand excess matching contributions are effective as of January 1, 1997.

Sections9.2(f) and 9.3(e) of the Plan regarding the nondiscrimination earlyparticipation rule is effective as of January 1, 1999.  

 

***Distributions***

Effectiveon and after September 1, 1998, the "required beginning date" andtiming of distribution election discussed in Section 8.1 of the Plan waschanged for non-5-percent owners to April 1 following the later of (i) the yearin which the Employee attains age 701/2 and (ii) the year in which the Employeeincurs a Termination of Employment.

As ofOctober 17, 2000, the cash-out limit in Section 8.1(a)(i) of the Plan shall beapplied as of the date on which the distribution is made, regardless of theprior balance of the Participant's Account.

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***HighlyCompensated Employees Determinations***

***Look Back Year Elections. ***Prior to the Restatement Date, thePlan was administered in accordance with the following look back year election:

12-consecutivemonth period immediately preceding the Plan Year for the 1997, 1998, 1999 and2000 Plan Years.