exv4w9



 








Exhibit 4.9


BILL BARRETT CORPORATION




RETIREMENT SAVINGS PLAN








 









 










BILL BARRETT CORPORATION




RETIREMENT SAVINGS PLAN




Defined
Contribution Plan 8.0 
Restated January 1, 2006




 









 









TABLE OF CONTENTS




	 
	INTRODUCTION

	 

	ARTICLE I FORMAT AND DEFINITIONS

	 

	Section 1.01
Format

	Section 1.02 Definitions

	 

	ARTICLE II PARTICIPATION

	 

	Section 2.01 Active Participant

	Section 2.02 Inactive Participant

	Section 2.03 Cessation of Participation

	 

	ARTICLE III CONTRIBUTIONS

	 

	Section 3.01 Employer Contributions

	 

	Section 3.01A —Rollover Contributions

	 

	Section 3.02 —Forfeitures

	 

	Section 3.03 —Allocation

	 

	Section 3.04 —Contribution Limitation

	 

	Section 3.05 —Excess Amounts

	 

	Section 3.06 —401(k) Safe Harbor Provisions

	 

	ARTICLE IV INVESTMENT OF CONTRIBUTIONS

	 

	Section 4.01 —Investment and Timing of Contributions

	 

	Section 4.01A —Investment in Qualifying Employer Securities

	 

	ARTICLE V BENEFITS

	 

	Section 5.01 —Retirement Benefits

	Section 5.02 —Death Benefits

	Section 5.03 —Vested Benefits

	Section 5.04 —When Benefits Start

	Section 5.05 —Withdrawal Benefits

	Section 5.06 —Loans to Participants

	Section 5.07 —Distributions Under Qualified Domestic Relations Orders

	 

	ARTICLE VI DISTRIBUTION OF BENEFITS

	 

	Section 6.01 Automatic Forms of Distribution

	Section 6.02 Optional Forms of Distribution







 









 






	 
	Section 6.03 Election Procedures

	Section 6.04 Notice Requirements

	 

	ARTICLE VII DISTRIBUTION REQUIREMENTS

	 

	Section 7.01 Application

	Section 7.02 Definitions

	Section 7.03 Distribution Requirements

	 

	ARTICLE VIII TERMINATION OF THE PLAN

	 

	ARTICLE IX ADMINISTRATION OF THE PLAN

	 

	Section 9.01 Administration

	Section 9.02 Expenses

	Section 9.03 Records

	Section 9.04 Information Available

	Section 9.05 Claim and Appeal Procedures

	Section 9.06 Delegation of Authority

	Section 9.07 Exercise of Discretionary Authority

	Section 9.08 Transaction Processing

	Section 9.09
Voting and Tender of Qualifying Employer Securities

	 

	ARTICLE X GENERAL PROVISIONS

	 

	Section 10.01 Amendments

	Section 10.02 Direct Rollovers

	Section 10.03 Mergers and Direct Transfers

	Section 10.04 Provisions Relating to the Insurer and Other Parties

	Section 10.05 Employment Status

	Section 10.06 Rights to Plan Assets

	Section 10.07 Beneficiary

	Section 10.08 Nonalienation of Benefits

	Section 10.09 Construction

	Section 10.10 Legal Actions

	Section 10.11 Small Amounts

	Section 10.12 Word Usage

	Section 10.13 Change in Service Method

	Section 10.14 Military Service

	 

	ARTICLE XI TOP-HEAVY PLAN REQUIREMENTS

	 
	Section 11.01 Application

	Section 11.02 Definitions

	Section 11.03
Modification of Vesting Requirements

	Section 11.04 Modification of Contributions

	 
	PLAN EXECUTION








 









 





INTRODUCTION




     The Primary Employer previously established a retirement plan on December 1, 2002.



     The Primary Employer is of the opinion that the plan should be changed. It believes that the
best means to accomplish these changes is to completely restate the plan’s terms, provisions and
conditions. The restatement, effective January 1, 2006, is set forth in this document and is
substituted in lieu of the prior document with the exception of the Economic Growth and Tax Relief
Reconciliation Act of 2001 (EGTRRA) good faith compliance amendment and any model amendment. Such
amendment(s) shall continue to apply to this restated plan until such provisions are integrated
into the plan or such amendment(s) are superseded by another amendment.



     The restated plan continues to be for the exclusive benefit of employees of the Employer. All
persons covered under the plan on December 31, 2005, shall continue to be covered under the
restated plan with no loss of benefits.



     It is intended that the plan, as restated, shall qualify as a profit sharing plan under the
Internal Revenue Code of 1986, including any later amendments to the Code.



ARTICLE
I
 FORMAT AND DEFINITIONS




SECTION 1.01—FORMAT.




     Words and phrases defined in the DEFINITIONS SECTION of Article I shall have that defined
meaning when used in this Plan, unless the context clearly indicates otherwise.



     These words and phrases have an initial capital letter to aid in identifying them as defined
terms.



SECTION 1.02—DEFINITIONS.





Account means, for a Participant, his share of the Plan Fund. Separate accounting records are
kept for those parts of his Account that result from:




	 	(a)	 	Elective Deferral Contributions
	 
	 	(b)	 	Matching Contributions
	 
	 	(c)	 	Other Employer Contributions
	 
	 	(d)	 	Rollover Contributions






A Participant’s Account shall be reduced by any distribution of his Vested Account and by any
Forfeitures. A Participant’s Account shall participate in the earnings credited, expenses
charged, and any appreciation or depreciation of the Investment Fund. His Account is subject
to any minimum guarantees applicable under the Annuity Contract or other investment
arrangement and to any expenses associated therewith.




ACP Test means the nondiscrimination test described in Code Section 401(m)(2) as provided for
in subparagraph (d) of the EXCESS AMOUNTS SECTION of Article III.




ACP Test Safe Harbor means the method described in subparagraph (c) of the 401(k) SAFE HARBOR
PROVISIONS SECTION of Article III for satisfying the ACP Test with respect to Matching
Contributions.




Active Participant means an Eligible Employee who is actively participating in the Plan
according to the provisions in the ACTIVE PARTICIPANT SECTION of Article II.




ADP Test means the nondiscrimination test described in Code Section 401(k)(3) as provided for
in subparagraph (c) of the EXCESS AMOUNTS SECTION of Article III.




ADP Test Safe Harbor means the method described in subparagraph (b) of the 401(k) SAFE HARBOR
PROVISIONS SECTION of Article III for satisfying the ADP Test.


Affiliated Service Group means any group of corporations, partnerships or other organizations of
which the Employer is a part and which is affiliated within the meaning of Code Section 414(m) and
regulations thereunder. Such a group includes at least two organizations one of which is either a
service organization (that is, an organization the principal


 









 






business of which is performing services), or an organization the principal business of which is
performing management functions on a regular and continuing basis. Such service is of a type
historically performed by employees. In the case of a management organization, the Affiliated
Service Group shall include organizations related, within the meaning of Code Section 144(a)(3), to
either the management organization or the organization for which it performs management functions.
The term Controlled Group, as it is used in this Plan, shall include the term Affiliated Service
Group.



Alternate Payee means any spouse, former spouse, child, or other dependent of a Participant who is
recognized by a qualified domestic relations order as having a right to receive all, or a portion
of, the benefits payable under the Plan with respect to such Participant.



Annual Compensation means, for a Plan Year, the Employee’s Compensation for the Compensation Year
ending with or within the consecutive 12-month period ending on the last day of the Plan Year.



Annuity Contract means the annuity contract or contracts into which the Trustee enters with the
Insurer for guaranteed benefits, for the investment of Contributions in separate accounts, and for
the payment of benefits under this Plan. The term Annuity Contract as it is used in this Plan
shall include the plural unless the context clearly indicates the singular is meant.



Annuity Starting Date means, for a Participant, the first day of the first period for which an
amount is payable as an annuity or any other form.



Beneficiary means the person or persons named by a Participant to receive any benefits under the
Plan when the Participant dies. See the BENEFICIARY SECTION of Article X.



Claimant means any person who makes a claim for benefits under this Plan. See the CLAIM AND APPEAL
PROCEDURES SECTION of Article IX.



Code means the Internal Revenue Code of 1986, as amended.



Compensation means, except for purposes of the CONTRIBUTION LIMITATION SECTION of Article III and
Article XI, the total earnings, except as modified in this definition, paid or made available to an
Employee by the Employer during any specified period.



“Earnings” in this definition means wages within the meaning of Code Section 3401(a) and all other
payments of compensation to an Employee by the Employer (in the course of the Employer’s trade or
business) for which the Employer is required to furnish the Employee a written statement under Code
Sections 6041(d), 6051(a)(3), and 6052. Earnings must be determined without regard to any rules
under Code Section 3401(a) that limit the remuneration included in wages based on the nature or
location of the employment or the services performed (such as the exception for agricultural labor
in Code Section 3401(a)(2)). The amount reported in the “Wages, Tips and Other Compensation” box on
Form W-2 satisfies this definition.



For any
Self-employed Individual, Compensation means Earned Income.


For purposes of determining the amount of Elective Deferral Contributions and Matching
Contributions, Compensation shall exclude reimbursements or other expense allowances, fringe
benefits (cash and noncash), moving expenses, deferred compensation (other than elective
contributions), and welfare benefits.



Compensation shall also include elective contributions. For this purpose, elective contributions
are amounts contributed by the Employer pursuant to a salary reduction agreement and which are not
includible in the gross income of the Employee under Code Section 125, 132(f)(4), 402(e)(3),
402(h)(1)(B), or 403(b). Elective contributions also include compensation deferred under a Code
Section 457 plan maintained by the Employer and employee contributions “picked up” by a
governmental entity and, pursuant to Code Section 414(h)(2), treated as Employer contributions.



For purposes of the EXCESS AMOUNTS SECTION of Article III, the Employer may elect to use an
alternative nondiscriminatory definition of Compensation in accordance with the regulations under
Code Section 414(s).




 









 








For Plan Years beginning on or after January 1, 1994, the annual Compensation of each Participant
taken into account for determining all benefits provided under the Plan for any determination
period shall not exceed $150,000, as adjusted for increases in the cost-of-living in accordance
with Code Section 401(a)(17)(B). The cost-of-living adjustment in effect for a calendar year
applies to any determination period beginning in such calendar year.



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



If Compensation for any prior determination period is taken into account in determining a
Participant’s contributions or benefits for the current Plan Year, the Compensation for such prior
determination period is subject to the applicable annual compensation limit in effect for that
determination period. For this purpose, in determining contributions or benefits in Plan Years
beginning on or after January 1, 1994, the annual compensation limit in effect for determination
periods beginning before that date is $150,000.



Compensation means, for a Leased Employee, Compensation for the services the Leased Employee
performs for the Employer, determined in the same manner as the Compensation of Employees who are
not Leased Employees, regardless of whether such Compensation is received directly from the
Employer or from the leasing organization.



Compensation Year means the consecutive 12-month period ending on the last day of each Plan Year,
including corresponding periods before December 1, 2002.



Contingent Annuitant means an individual named by the Participant to receive a lifetime benefit
after the Participant’s death in accordance with a survivorship
life annuity.


Contributions means





Elective Deferral Contributions



Matching Contributions


Discretionary Contributions


Rollover
Contributions


as set out in Article III, unless the context clearly indicates only specific contributions are
meant.



Controlled Group means any group of corporations, trades, or businesses of which the Employer is a
part that are under common control. A Controlled Group includes any group of corporations, trades,
or businesses, whether or not incorporated, which is either a parent-subsidiary group, a
brother-sister group, or a combined group within the meaning of Code Section 414(b), Code Section
414(c) and regulations thereunder and, for purposes of determining contribution limitations under
the CONTRIBUTION LIMITATION SECTION of Article III, as modified by Code Section 415(h) and, for the
purpose of identifying Leased Employees, as modified by Code Section 144(a)(3). The term
Controlled Group, as it is used in this Plan, shall include the term Affiliated Service Group and
any other employer required to be aggregated with the Employer under Code Section 414(o) and the
regulations thereunder.



Direct Rollover means a payment by the Plan to the Eligible Retirement Plan specified by the
Distributee.



Discretionary Contributions means discretionary contributions made by the Employer to fund this
Plan. See the EMPLOYER CONTRIBUTIONS SECTION of Article III.



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



Earned Income means, for a Self-employed Individual, net earnings from self-employment in the trade
or business for which this Plan is established if such Self-employed Individual’s personal services
are a material income producing factor for that trade or business. Net earnings shall be
determined without regard to items not included in gross income and the deductions properly
allocable to or chargeable against such items. Net earnings shall be reduced for the employer
contributions to the Employer’s qualified retirement plan(s) to the extent deductible under Code
Section 404.




 









 







Net earnings shall be determined with regard to the deduction allowed to the Employer by Code
Section 164(f) for taxable years beginning after December 31, 1989.



Elective Deferral Contributions means contributions made by the Employer to fund this Plan in
accordance with elective deferral agreements between Eligible Employees and the Employer.



Elective deferral agreements shall be made, changed, or terminated according to the provisions of
the EMPLOYER CONTRIBUTIONS SECTION of Article III.



Elective Deferral Contributions shall be 100% vested and subject to the distribution restrictions
of Code Section 401(k) when made. See the WHEN BENEFITS START SECTION of Article V.



Eligible Employee means any Employee of the Employer who meets the following requirement. He is
not employed as an intern.



Eligible Retirement Plan means an individual retirement account described in Code Section 408(a),
an individual retirement annuity described in Code Section 408(b), an annuity plan described in
Code Section 403(a) or a qualified trust described in Code Section 401(a), that accepts the
Distributee’s Eligible Rollover Distribution. However, in the case of an Eligible Rollover
Distribution to the surviving spouse, an Eligible Retirement Plan is an individual retirement
account or individual retirement annuity.



Eligible Rollover Distribution means any distribution of all or any portion of the balance to the
credit of the Distributee, except that an Eligible Rollover Distribution does not include: (i) any
distribution that is one of a series of substantially equal periodic payments (not less frequently
than annually) made for the life (or life expectancy) of the Distributee or the joint lives (or
joint life expectancies) of the Distributee and the Distributee’s designated Beneficiary, or for a
specified period of ten years or more; (ii) any distribution to the extent such distribution is
required under Code Section 401(a)(9); (iii) any hardship distribution described in Code Section
401(k)(2)(B)(i)(IV) received after December 31, 1998; (iv) the portion of any other distribution(s)
that is not includible in gross income (determined without regard to the exclusion for net
unrealized appreciation with respect to employer securities); and (v) any other distribution(s)
that is reasonably expected to total less than $200 during a year.



Employee means an individual who is employed by the Employer or any other employer required to be
aggregated with the Employer under Code Sections 414(b), (c), (m), or (o). A Controlled Group
member is required to be aggregated with the Employer.



The term Employee shall include any Self-employed Individual treated as an employee of any employer
described in the preceding paragraph as provided in Code Section 401(c)(1). The term Employee
shall also include any Leased Employee deemed to be an employee of any employer described in the
preceding paragraph as provided in Code Section 414(n) or (o).



Employer means, except for purposes of the CONTRIBUTION LIMITATION SECTION of Article III, the
Primary Employer. This will also include any successor corporation or firm of the Employer which
shall, by written agreement, assume the obligations of this Plan or any Predecessor Employer which
maintained this Plan.



Employer Contributions means




Elective Deferral Contributions



Matching Contributions



Discretionary Contributions



as set out in Article III and contributions made by the Employer to fund this Plan in accordance
with the provisions of the MODIFICATION OF CONTRIBUTIONS SECTION of Article XI, unless the context
clearly indicates only specific contributions are meant.



Employment Commencement Date means the date an Employee first performs an Hour-of-Service.



Entry Date means the date an Employee first enters the Plan as an Active Participant. See the
ACTIVE PARTICIPANT


 









 






SECTION of Article II.



ERISA means the Employee Retirement Income Security Act of 1974, as amended.



Fiscal Year means the Primary Employer’s taxable year. The last day of the Fiscal Year is December
31.



Forfeiture means the part, if any, of a Participant’s Account that is forfeited. See the
FORFEITURES SECTION of Article III.



Highly Compensated Employee means any Employee who:




     (a) was a 5-percent owner at any time during the year or the preceding year, or



     (b) for the preceding year had compensation from the Employer in excess of $80,000 and, if the
Employer so elects, was in the top-paid group for the preceding year. The $80,000 amount is
adjusted at the same time and in the same manner as under Code Section 415(d), except that the base
period is the calendar quarter ending September 30, 1996.


For this purpose the applicable year of the plan for which a determination is being made is called
a determination year and the preceding 12-month period is called a look-back year. If the Employer
makes a calendar year data election, the look-back year shall be the calendar year beginning with
or within the look-back year. The Plan may not use such election to determine whether Employees are
Highly Compensated Employees on account of being a 5-percent owner.



In determining who is a Highly Compensated Employee, the Employer does not make a top-paid group
election. In determining who is a Highly Compensated Employee, the Employer does not make a
calendar year data election.



Calendar year data elections and top-paid group elections, once made, apply for all subsequent
years unless changed by the Employer. If the Employer makes one election, the Employer is not
required to make the other. If both elections are made, the look-back year in determining the
top-paid group must be the calendar year beginning with or within the look-back year. These
elections must apply consistently to the determination years of all plans maintained by the
Employer which reference the highly compensated employee definition in Code Section 414(q), except
as provided in Internal Revenue Service Notice 97-45 (or superseding guidance). The consistency
requirement will not apply to determination years beginning with or within the 1997 calendar year,
and for determination years beginning on or after January 1, 1998 and before January 1, 2000,
satisfaction of the consistency requirement is determined without regard to any nonretirement plans
of the Employer.



The determination of who is a highly compensated former Employee is based on the rules applicable
to determining Highly Compensated Employee status as in effect for that determination year, in
accordance with section 1.414(q)-1T, A-4 of the temporary Income Tax Regulations and Internal
Revenue Service Notice 97-45.



In determining whether an Employee is a Highly Compensated Employee for years beginning in 1997,
the amendments to Code Section 414(q) stated above are treated as having been in effect for years
beginning in 1996.



The determination of who is a Highly Compensated Employee, including the determinations of the
number and identity of Employees in the top-paid group, the compensation that is considered, and
the identity of the 5-percent owners, shall be made in accordance with Code Section 414(q) and the
regulations thereunder.



Hour-of-Service means, for an Employee, each hour for which he is paid, or entitled to payment, for
performing duties for the Employer.



Hours-of-Service shall be credited for employment with any other employer required to be aggregated
with the Employer under Code Sections 414(b), (c), (m) or (o) and the regulations thereunder for
purposes of eligibility and vesting. Hours-of-Service shall also be credited for any individual
who is considered an employee for purposes of this Plan pursuant to Code Section 414(n) or Code
Section 414(o) and the regulations thereunder.



Inactive Participant means a former Active Participant who has an Account. See the INACTIVE
PARTICIPANT


 









 







SECTION of Article II.



Insurer means Principal Life Insurance Company and any other insurance company or companies named
by the Trustee or Primary Employer.



Investment Fund means the total of Plan assets, excluding the guaranteed benefit policy portion of
any Annuity Contract. All or a portion of these assets may be held under the Trust Agreement.



The Investment Fund shall be valued at current fair market value as of the Valuation Date. The
valuation shall take into consideration investment earnings credited, expenses charged, payments
made, and changes in the values of the assets held in the Investment Fund.



The Investment Fund shall be allocated at all times to Participants, except as otherwise expressly
provided in the Plan. The Account of a Participant shall be credited with its share of the gains
and losses of the Investment Fund. That part of a Participant’s Account invested in a funding
arrangement which establishes one or more accounts or investment vehicles for such Participant
thereunder shall be credited with the gain or loss from such accounts or investment vehicles. The
part of a Participant’s Account which is invested in other funding arrangements shall be credited
with a proportionate share of the gain or loss of such investments. The share shall be determined
by multiplying the gain or loss of the investment by the ratio of the part of the Participant’s
Account invested in such funding arrangement to the total of the Investment Fund invested in such
funding arrangement.



Investment Manager means any fiduciary (other than a trustee or Named Fiduciary)





(a) who has the power to manage, acquire, or dispose of any assets of the Plan;




(b) who (i) is registered as an investment adviser under the Investment Advisers Act of 1940;
(ii) is not registered as an investment adviser under such Act by reason of paragraph (1) of
section 203A(a) of such Act, is registered as an investment adviser under the laws of the
state (referred to in such paragraph (1)) in which it maintains its principal office and
place of business, and, at the time it last filed the registration form most recently filed
by it with such state in order to maintain its registration under the laws of such state,
also filed a copy of such form with the Secretary of Labor, (iii) is a bank, as defined in
that Act; or (iv) is an insurance company qualified to perform services described in
subparagraph (a) above under the laws of more than one state; and




(c) who has acknowledged in writing being a fiduciary with respect to the Plan.


Late Retirement Date means the first day of any month which is after a Participant’s Normal
Retirement Date and on which retirement benefits begin. If a Participant continues to work for the
Employer after his Normal Retirement Date, his Late Retirement Date shall be the earliest first day
of the month on or after the date he ceases to be an Employee. An earlier or a later Retirement
Date may apply if the Participant so elects. An earlier Retirement Date may apply if the
Participant is age 70 1/2. See the WHEN BENEFITS START SECTION of Article V.



Leased Employee means any person (other than an employee of the recipient) who, pursuant to an
agreement between the recipient and any other person (“leasing organization”), has performed
services for the recipient (or for the recipient and related persons determined in accordance with
Code Section 414(n)(6)) on a substantially full time basis for a period of at least one year, and
such services are performed under primary direction or control by the recipient. Contributions or
benefits provided by the leasing organization to a Leased Employee, which are attributable to
service performed for the recipient employer, shall be treated as provided by the recipient
employer.



A Leased Employee shall not be considered an employee of the recipient if:





(a) such employee is covered by a money purchase pension plan providing (i) a nonintegrated
employer contribution rate of at least 10 percent of compensation, as defined in Code Section
415(c)(3), but for years beginning before January 1, 1998, including amounts contributed
pursuant to a salary reduction agreement which are excludible from the employee’s gross
income under Code Sections 125, 402(e)(3), 402(h)(1)(B), or 403(b), (ii) immediate
participation, and (iii) full and immediate vesting, and





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



 









 






Loan Administrator means the person(s) or position(s) authorized to administer the Participant loan
program.



The Loan
Administrator is the Manager of Human Resources.



Matching Contributions means contributions made by the Employer to fund this Plan which are
contingent on a Participant’s Elective Deferral Contributions. See the EMPLOYER CONTRIBUTIONS
SECTION of Article III.



Monthly Date means each Yearly Date and the same day of each following month during the Plan Year
beginning on such Yearly Date.



Named Fiduciary means the person or persons who have authority to control and manage the operation
and administration of the Plan.



The Named Fiduciary is the Employer.



Nonhighly Compensated Employee means an Employee of the Employer who is not a Highly Compensated
Employee.



Normal Form means a single life annuity with installment refund.



Normal Retirement Age means the age at which the Participant’s normal retirement benefit becomes
nonforfeitable if he is an Employee. A Participant’s Normal Retirement Age is 65.



Normal Retirement Date means the earliest first day of the month on or after the date the
Participant reaches his Normal Retirement Age. Unless otherwise provided in this Plan, a
Participant’s retirement benefits shall begin on a Participant’s Normal Retirement Date if he has
ceased to be an Employee on such date and has a Vested Account. Even if the Participant is an
Employee on his Normal Retirement Date, he may choose to have his retirement benefit begin on such
date. See the WHEN BENEFITS START SECTION of Article V.



Owner-employee means a Self-employed Individual who, in the case of a sole proprietorship, owns the
entire interest in the unincorporated trade or business for which this Plan is established. If
this Plan is established for a partnership, an Owner-employee means a Self-employed Individual who
owns more than 10 percent of either the capital interest or profits interest in such partnership.



Parental Absence means an Employee’s absence from work:




     (a) by reason of pregnancy of the Employee,



     (b) by reason of birth of a child of the Employee,



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



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


Participant means either an Active Participant or an Inactive
Participant.



Period of Military Duty means, for an Employee



(a) who served as a member of the armed forces of the United States, and



(b) who was reemployed by the Employer at a time when the Employee had a right to reemployment in
accordance with seniority rights as protected under Chapter 43 of Title 38 of the U. S. Code,



the period of time from the date the Employee was first absent from active work for the Employer
because of such military duty to the date the Employee was reemployed.



Period of Service means a period of time beginning on an Employee’s Employment Commencement Date or


 









 






Reemployment Commencement Date (whichever applies) and ending on his Severance Date.



Period of Severance means a period of time beginning on an Employee’s Severance Date and ending on
the date he again performs an Hour-of-Service.



A one-year Period of Severance means a Period of Severance of 12 consecutive months.



Solely for purposes of determining whether a one-year Period of Severance has occurred for
eligibility or vesting purposes, the consecutive 12-month period beginning on the first anniversary
of the first date of a Parental Absence shall not be a one-year Period of Severance.



Plan means the 401(k) savings plan of the Employer set forth in this document, including any later
amendments to it.



Plan Administrator means the person or persons who administer the Plan.



The Plan Administrator is the Employer.



Plan Fund means the total of the Investment Fund and the guaranteed benefit policy portion of any
Annuity Contract. The Investment Fund shall be valued as stated in its definition. The guaranteed
benefit policy portion of any Annuity Contract shall be determined in accordance with the terms of
the Annuity Contract and, to the extent that such Annuity Contract allocates contract values to
Participants, allocated to Participants in accordance with its terms. The total value of all
amounts held under the Plan Fund shall equal the value of the aggregate Participants’ Accounts
under the Plan.



Plan Year means a period beginning on a Yearly Date and ending on the day before the next Yearly
Date.



Plan-year Quarter means a period beginning on a Quarterly Date and ending on the day before the
next Quarterly Date.



Predecessor Employer means a firm of which the Employer was once a part (e.g., due to a spinoff or
change of corporate status) or a firm absorbed by the Employer because of a merger or acquisition
(stock or asset, including a division or an operation of such company).



Primary Employer means Bill Barrett Corporation.



Qualified Joint and Survivor Annuity means, for a Participant who has a spouse, an immediate
survivorship life annuity with installment refund, where the survivorship percentage is 50% and the
Contingent Annuitant is the Participant’s spouse. A former spouse will be treated as the spouse to
the extent provided under a qualified domestic relations order as described in Code Section 414(p).



The amount of benefit payable under the Qualified Joint and Survivor Annuity shall be the amount of
benefit which may be provided by the Participant’s Vested Account.



Qualified Matching Contributions means Matching Contributions which are 100% vested and subject to
the distribution restrictions of Code Section 401(k) when made. See the EMPLOYER CONTRIBUTIONS
SECTION of Article III and the WHEN BENEFITS START SECTION of Article V.



Qualified Preretirement Survivor Annuity means a single life annuity with installment refund
payable to the surviving spouse of a Participant who dies before his Annuity Starting Date. A
former spouse will be treated as the surviving spouse to the extent provided under a qualified
domestic relations order as described in Code Section 414(p).



Qualifying Employer Securities means any security which is issued by the Employer or any Controlled
Group member and which meets the requirements of Code Section 409(l) and ERISA Section 407(d)(5).
This shall also include any securities that satisfied the requirements of the definition when these
securities were assigned to the Plan.



Qualifying Employer Securities Fund means that part of the assets of the Trust Fund that are
designated to be held primarily or exclusively in Qualifying Employer Securities for the purpose of
providing benefits for Participants.




 









 










Quarterly Date means each Yearly Date and the third, sixth, and ninth Monthly Date after each
Yearly Date which is within the same Plan Year.



Reemployment Commencement Date means the date an Employee first performs an Hour-of-Service
following a Period of Severance.



Reentry Date means the date a former Active Participant reenters the Plan. See the ACTIVE
PARTICIPANT SECTION of Article II.



Retirement Date means the date a retirement benefit will begin and is a Participant’s Normal or
Late Retirement Date, as the case may be.



Rollover Contributions means the Rollover Contributions which are made by an Eligible Employee or
an Inactive Participant according to the provisions of the ROLLOVER CONTRIBUTIONS SECTION of
Article III.



Self-employed Individual means, with respect to any Fiscal Year, an individual who has Earned
Income for the Fiscal Year (or who would have Earned Income but for the fact the trade or business
for which this Plan is established did not have net profits for such Fiscal Year).



Severance Date means the earlier of:




     (a) the date on which an Employee quits, retires, dies, or is discharged, or




     (b) the first anniversary of the date an Employee begins a one-year absence from service
(with or without pay). This absence may be the result of any combination of vacation,
holiday, sickness, disability, leave of absence or layoff.


Solely to determine whether a one-year Period of Severance has occurred for eligibility or vesting
purposes for an Employee who is absent from service beyond the first anniversary of the first day
of a Parental Absence, Severance Date is the second anniversary of the first day of the Parental
Absence. The period between the first and second anniversaries of the first day of the Parental
Absence is not a Period of Service and is not a Period of Severance.




Significant Corporate Event means any corporate merger or consolidation, recapitalization,
reclassification, liquidation, dissolution, sale of substantially all assets of a trade or
business, or such similar transaction as may be prescribed in regulations under Code Section
409(e)(3).



Trust Agreement means an agreement or agreements of trust between the Primary Employer and Trustee
established for the purpose of holding and distributing the Trust Fund under the provisions of the
Plan. The Trust Agreement may provide for the investment of all or any portion of the Trust Fund in
the Annuity Contract or any other investment arrangement.



Trust Fund means the total funds held under an applicable Trust Agreement. The term Trust Fund
when used within a Trust Agreement shall mean only the funds held under that Trust Agreement.



Trustee means the party or parties named in the applicable Trust Agreement. The term Trustee as it
is used in this Plan is deemed to include the plural unless the context clearly indicates the
singular is meant.



Valuation Date means the date on which the value of the assets of the Investment Fund is
determined. The value of each Account which is maintained under this Plan shall be determined on
the Valuation Date. In each Plan Year, the Valuation Date shall be the last day of the Plan Year.
At the discretion of the Plan Administrator, Trustee, or Insurer (whichever applies), assets of the
Investment Fund may be valued more frequently. These dates shall also be Valuation Dates.



Vested Account means the vested part of a Participant’s Account. The Participant’s Vested Account
is equal to his Account.




 









 








The Participant’s Vested Account is nonforfeitable. The percentage used to determine that portion
of a Participant’s Account attributable to Employer Contributions which is nonforfeitable is 100%.



Yearly Date means December 1, 2002, and each following January 1.



Years of Service means an Employee’s Period of Service. Years of Service shall be measured from his
Employment Commencement Date to his most recent Severance Date. Years of Service shall be reduced
by any Period of Severance that occurred prior to his most recent Severance Date, unless such
Period of Severance is included under the service spanning rule below. This period of Years of
Service shall be expressed as years and fractional parts of a year (to four decimal places) on the
basis that 365 days equal one year.



However, Years of Service is modified as follows:



Period of Military Duty included:





A Period of Military Duty shall be included as service with the Employer to the extent it has
not already been credited.



Period of Severance included (service spanning rule):




A Period of Severance shall be deemed to be a Period of Service under either of the following
conditions:




(a) the Period of Severance immediately follows a period during which an Employee is not
absent from work and ends within 12 months; or





(b) the Period of Severance immediately follows a period during which an Employee is absent
from work for any reason other than quitting, being discharged or retiring (such as a leave of
absence or layoff) and ends within 12 months of the date he was first absent.


Controlled Group service included:





An Employee’s service with a member firm of a Controlled Group while both that firm and the
Employer were members of the Controlled Group shall be included as service with the Employer.



ARTICLE II




PARTICIPATION




SECTION 2.01—ACTIVE PARTICIPANT.





	(a)	 	An Employee shall first become an Active Participant (begin active participation in
the Plan) on the earliest Quarterly Date on which he is an Eligible Employee and has met
the eligibility requirement set forth below. This date is his Entry Date.
	 
	 	 	(1) He is age 21 or older.
	 
	 	 	Each Employee who was an Active Participant under the Plan on December 31, 2005, shall
continue to be an Active Participant if he is still an Eligible Employee on January 1,
2006, and his Entry Date shall not change.
	 
	 	 	If a person has been an Eligible Employee who has met all of the eligibility
requirements above, but is not an Eligible Employee on the date which would have been
his Entry Date, he shall become an Active Participant on the date he again becomes an
Eligible Employee. This date is his Entry Date.
	 
	 	 	In the event an Employee who is not an Eligible Employee becomes an Eligible Employee,
such Eligible




 









 








	 	 	Employee shall become an Active Participant immediately if such Eligible Employee has
satisfied the eligibility requirements above and would have otherwise previously become
an Active Participant had he met the definition of Eligible Employee. This date is his
Entry Date.






(b) An Inactive Participant shall again become an Active Participant (resume active
participation in the Plan) on the date he again performs an Hour-of-Service as an Eligible
Employee. This date is his Reentry Date.




Upon again becoming an Active Participant, he shall cease to be an Inactive Participant.




(c) A former Participant shall again become an Active Participant (resume active participation
in the Plan) on the date he again performs an Hour-of-Service as an Eligible Employee. This
date is his Reentry Date.



     There shall be no duplication of benefits for a Participant under this Plan because of more
than one period as an Active Participant.



SECTION 2.02—INACTIVE PARTICIPANT.




     An Active Participant shall become an Inactive Participant (stop accruing benefits under the
Plan) on the earlier of the following:




	 	 	(a) the date the Participant ceases to be an Eligible Employee, or

	 
	 	 	(b) the effective date of complete termination of the Plan under Article VIII.





     An Employee or former Employee who was an Inactive Participant under the Plan on December 31,
2005, shall continue to be an Inactive Participant on January 1, 2006. Eligibility for any
benefits payable to the Participant or on his behalf and the amount of the benefits shall be
determined according to the provisions of the prior document, unless otherwise stated in this
document.



SECTION 2.03—CESSATION OF PARTICIPATION.




     A Participant shall cease to be a Participant on the date he is no longer an Eligible Employee
and his Account is zero.



ARTICLE III




CONTRIBUTIONS




SECTION 3.01—EMPLOYER CONTRIBUTIONS.




     Employer Contributions shall be made without regard to current or accumulated net income,
earnings or profits of the Employer. Notwithstanding the foregoing, the Plan shall continue to be
designed to qualify as a profit sharing plan for purposes of Code Sections 401(a), 402, 412, and
417. Such Contributions shall be equal to the Employer Contributions as described below:




	(a)	 	The amount of each Elective Deferral Contribution for a Participant shall be equal
to a portion of Compensation as specified in the elective deferral agreement. An
Employee who is eligible to participate in the Plan may file an elective deferral
agreement with the Employer. The Participant shall modify or terminate the elective
deferral agreement by filing a new elective deferral agreement. The elective deferral
agreement may not be made retroactively and shall remain in effect until modified or
terminated.
	 
	 	 	The elective deferral agreement to start or modify Elective Deferral Contributions shall
be effective on the first day that pay is paid or made available following the date on
which the Participant’s Entry Date (Reentry Date, if applicable) or any following date
occurs. The elective deferral agreement must be entered into on or before the date it is
effective.
	 
	 	 	The elective deferral agreement to stop Elective Deferral Contributions may be entered
into on any date.




 









 








	 	 	Such elective deferral agreement shall be effective on the first day that pay is paid or
made available after the elective deferral agreement is entered into.
	 
	 	 	Elective Deferral Contributions are fully (100%) vested and nonforfeitable.
	 
	(b)	 	The Employer shall make Matching Contributions in an amount equal to 100% of
Elective Deferral Contributions. Elective Deferral Contributions which are over 6% of
Compensation won’t be matched.
	 
	 	 	Matching Contributions are calculated based on Elective Deferral Contributions and
Compensation for the pay period. Matching Contributions are made for all persons who
were Active Participants at any time during that pay period.
	 
	 	 	Matching Contributions are Qualified Matching Contributions. These Contributions are
100% vested and subject to the distribution restrictions of Code Section 401(k) when
made.
	 
	(c)	 	Discretionary Contributions may be made for each Plan Year in an amount determined
by the Employer.
	 
	 	 	Discretionary Contributions are fully (100%) vested and nonforfeitable.





     No Participant shall be permitted to have Elective Deferral Contributions, as defined in the
EXCESS AMOUNTS SECTION of this article, made under this Plan, or any other qualified plan
maintained by the Employer, during any taxable year, in excess of the dollar limitation contained
in Code Section 402(g) in effect at the beginning of such taxable year.



     An elective deferral agreement (or change thereto) must be made in such manner and in
accordance with such rules as the Employer may prescribe (including by means of voice response or
other electronic system under circumstances the Employer permits) and may not be made
retroactively.



     Employer Contributions are allocated according to the provisions of the ALLOCATION SECTION of
this article.



     The Employer shall make 50% of the Matching Contributions, which are to be invested in
Qualifying Employer Securities, to the Trustee in the form of Qualifying Employer Securities.



     A portion of the Plan assets resulting from Employer Contributions (but not more than the
original amount of those Contributions) may be returned if the Employer Contributions are made
because of a mistake of fact or are more than the amount deductible under Code Section 404
(excluding any amount which is not deductible because the Plan is disqualified). The amount
involved must be returned to the Employer within one year after the date the Employer Contributions
are made by mistake of fact or the date the deduction is disallowed, whichever applies. Except as
provided under this paragraph and Articles VIII and X, the assets of the Plan shall never be used
for the benefit of the Employer and are held for the exclusive purpose of providing benefits to
Participants and their Beneficiaries and for defraying reasonable expenses of administering the
Plan.



SECTION 3.01A—ROLLOVER CONTRIBUTIONS.




     A Rollover Contribution may be made by an Eligible Employee or an Inactive Participant if the
following conditions are met:



     (a) The Contribution is of amounts distributed from a plan that satisfies the requirements of
Code Section 401(a) or from a “conduit” individual retirement account described in Code Section
408(d)(3)(A). In the case of an Inactive Participant, the Contribution must be of an amount
distributed from another plan of the Employer, or a plan of a Controlled Group member, that
satisfies the requirements of Code Section 401(a).



     (b) The Contribution is of amounts that the Code permits to be transferred to a plan that
meets the requirements of Code Section 401(a).



     (c) The Contribution is made in the form of a direct rollover under Code Section 401(a)(31) or
is a rollover made under Code Section 402(c) or 408(d)(3)(A) within 60 days after the Eligible
Employee or Inactive Participant receives the distribution.



 









 












     (d) The Eligible Employee or Inactive Participant furnishes evidence satisfactory to the Plan
Administrator that the proposed rollover meets conditions (a), (b), and (c) above.



     A Rollover Contribution shall be allowed in cash only and must be made according to procedures
set up by the Plan Administrator.



     If the Eligible Employee is not an Active Participant when the Rollover Contribution is made,
he shall be deemed to be an Active Participant only for the purpose of investment and distribution
of the Rollover Contribution. Employer Contributions shall not be made for or allocated to the
Eligible Employee until the time he meets all of the requirements to become an Active Participant.



     Rollover Contributions made by an Eligible Employee or an Inactive Participant shall be
credited to his Account. The part of the Participant’s Account resulting from Rollover
Contributions is fully (100%) vested and nonforfeitable at all times. A separate accounting record
shall be maintained for that part of his Rollover Contributions consisting of voluntary
contributions which were deducted from the Participant’s gross income for Federal income tax
purposes.



SECTION 3.02—FORFEITURES.




     A Forfeiture shall occur as provided in the EXCESS AMOUNTS SECTION of this article.



     Forfeitures shall be determined at least once during each Plan Year. Forfeitures may first be
used to pay administrative expenses. Forfeitures of Matching Contributions which relate to excess
amounts as provided in the EXCESS AMOUNTS SECTION of this article, which have not been used to pay
administrative expenses, shall be applied to reduce the earliest Employer Contributions made after
the Forfeitures are determined. Upon their application to reduce Employer Contributions,
Forfeitures shall be deemed to be Employer Contributions.



SECTION 3.03—ALLOCATION.




     A person meets the allocation requirements of this section if he is an Active Participant on
the last day of the Plan Year.



     Elective Deferral Contributions shall be allocated to Participants for whom such Contributions
are made under the EMPLOYER CONTRIBUTIONS SECTION of this article. Such Contributions shall be
allocated when made and credited to the Participant’s Account.



     Matching Contributions shall be allocated to the persons for whom such Contributions are made
under the EMPLOYER CONTRIBUTIONS SECTION of this article. Such Contributions shall be allocated
when made and credited to the person’s Account.



     Discretionary Contributions shall be allocated as of the last day of the Plan Year using
Annual Compensation for the Plan Year. The amount allocated shall be determined as follows:


STEP ONE: This step one shall only apply in years in which the Plan is a Top-heavy Plan, as
defined in the DEFINITIONS SECTION of Article XI, and the minimum contribution under the
MODIFICATION OF CONTRIBUTIONS SECTION of Article XI is not being provided by other contributions to
this Plan or another plan of the Employer.



The allocation in this step one shall be made to each person meeting the allocation requirements of
this section and each person who is entitled to a minimum contribution under the MODIFICATION OF
CONTRIBUTIONS SECTION of Article XI. Each such person’s allocation shall be an amount equal to the
Discretionary Contributions multiplied by the ratio of such person’s Annual Compensation to the
total Annual Compensation of all such persons. Such amount shall not exceed 3% of such person’s
Annual Compensation. The allocation for any person who does not meet the allocation requirements of
this section shall be limited to the amount necessary to fund the
minimum contribution.


STEP TWO: The allocation in this step two shall be made to each person meeting the allocation
requirements of this section. Each such person’s allocation shall be equal to any amount remaining
after the allocation in step one multiplied


 









 







by the ratio of such person’s Annual Compensation to the total Annual Compensation of all such
persons.



This amount shall be credited to the person’s Account.




     If Leased Employees are Eligible Employees, in determining the amount of Employer
Contributions allocated to a person who is a Leased Employee, contributions provided by the leasing
organization which are attributable to services such Leased Employee performs for the Employer
shall be treated as provided by the Employer. Those contributions shall not be duplicated under
this Plan.



SECTION 3.04—CONTRIBUTION LIMITATION.





	 	 	(a) Definitions. For the purpose of determining the contribution limitation
set forth in this section, the following terms are defined.
	 
	 	 	Annual Additions means the sum of the following amounts credited to a Participant’s
account for the Limitation Year:






(1) employer contributions;



(2) employee contributions; and



(3) forfeitures.




Annual Additions to a defined contribution plan shall also include the following:



(4) amounts allocated, after March 31, 1984, to an individual medical account, as defined in
Code Section 415(l)(2), which are part of a pension or annuity plan maintained by the
Employer,




(5) amounts derived from contributions paid or accrued after December 31, 1985, in taxable
years ending after such date, which are attributable to post-retirement medical benefits,
allocated to the separate account of a key employee, as defined in Code Section 419A(d)(3),
under a welfare benefit fund, as defined in Code Section 419(e), maintained by the Employer;
and


(6) allocations under a simplified employee pension.




For this purpose, any Excess Amount applied under (e) and (k) below in the Limitation
Year to reduce Employer Contributions shall be considered Annual Additions for such
Limitation Year.




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


For any Self-employed Individual, Compensation shall mean Earned Income.



For purposes of applying the limitations of this section, Compensation for a Limitation Year is the
Compensation actually paid or made available in gross income during such Limitation Year.



For Limitation Years beginning after December 31, 1997, for purposes of applying the limitations of
this section, Compensation paid or made available during such Limitation Year shall include any
elective deferral (as defined in Code Section 402(g)(3)), and any amount which is contributed or
deferred by the Employer at the election of the Employee and which is not includible in the gross
income of the Employee by reason of Code Section 125, 132(f)(4), or 457.



Defined Contribution Dollar Limitation means, for Limitation Years beginning after December 31,
1994, $30,000, as adjusted under Code Section 415(d).



Employer means the employer that adopts this Plan, and all members of a controlled group of
corporations (as defined in Code Section 414(b) as modified by Code Section 415(h)), all commonly
controlled trades or businesses (as defined


 









 









in Code Section 415(c) as modified by Code Section 415(h)) or affiliated service groups (as defined
in Code Section 414(m)) of which the adopting employer is a part, and any other entity required to
be aggregated with the employer pursuant to regulations under Code
Section 414(o).



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



Highest Average Compensation means the average Compensation for the three consecutive Limitation
Years while he was an Employee (actual consecutive Limitation Years while he was an Employee, if
employed less than three years) that produces the highest average.



Limitation Year means the consecutive 12-month period ending on the last day of each Plan Year,
including corresponding consecutive 12-month periods before December 1, 2002. If the Limitation
Year is other than the calendar year, execution of this Plan (or any amendment to this Plan
changing the Limitation Year) constitutes the Employer’s adoption of a written resolution electing
the Limitation Year. If the Limitation Year is amended to a different consecutive 12-month period,
the new Limitation Year must begin on a date within the Limitation Year in which the amendment is
made.



Maximum Permissible Amount means the maximum Annual Addition that may be contributed or allocated
to a Participant’s Account under the Plan for any Limitation Year. This amount shall not exceed
the lesser of:




     (1) The Defined Contribution Dollar Limitation, or



     (2) 25 percent of the Participant’s Compensation for the Limitation Year.


The compensation limitation referred to in (2) shall not apply to any contribution for medical
benefits (within the meaning of Code Section 401(h) or 419A(f)(2)) which is otherwise treated as an
Annual Addition under Code Section 415(l)(1) or 419A(d)(2).



If a short Limitation Year is created because of an amendment changing the Limitation Year to a
different consecutive 12-month period, the Maximum Permissible Amount will not exceed the Defined
Contribution Dollar Limitation multiplied by the following fraction:




Number of months in the short Limitation Year 

12




	(b)	 	If the Participant does not participate in, and has never participated in, another qualified plan
maintained by the Employer or a welfare benefit fund, as defined in Code Section 419(e), maintained
by the Employer, or an individual medical account, as defined in Code Section 415(l)(2), maintained
by the Employer, or a simplified employee pension, as defined in Code Section 408(k), maintained by
the Employer, which provides an Annual Addition, the amount of Annual Additions which may be
credited to the Participant’s Account for any Limitation Year shall not exceed the lesser of the
Maximum Permissible Amount or any other limitation contained in this Plan. If the Employer
Contribution that would otherwise be contributed or allocated to the Participant’s Account would
cause the Annual Additions for the Limitation Year to exceed the Maximum Permissible Amount, the
amount contributed or allocated shall be reduced so that the Annual Additions for the Limitation
Year will equal the Maximum Permissible Amount.
	 
	(c)	 	Prior to determining the Participant’s actual Compensation for the Limitation Year, the Employer
may determine the Maximum Permissible Amount for a Participant on the basis of a reasonable
estimation of the Participant’s Compensation for the Limitation Year, uniformly determined for all
Participants similarly situated.
	 
	(d)	 	As soon as is administratively feasible after the end of the Limitation Year, the Maximum
Permissible Amount for the Limitation Year will be determined on the basis of the Participant’s
actual Compensation for the Limitation Year.

	 
	(e)	 	If a reasonable error in estimating a Participant’s Compensation for the Limitation Year, a
reasonable error in determining the amount of elective deferrals (within the meaning of Code
Section 402(g)(3)) that may be made with





 









 






respect to any individual under the limits of Code Section 415, or under other facts and
circumstances allowed by the Internal Revenue Service, there is an Excess Amount, the excess will
be disposed of as follows:





(1) Any Elective Deferral Contributions that are not the basis for Matching Contributions
(plus attributable earnings), to the extent they would reduce the Excess Amount, will be
distributed to the Participant.




(2) If after the application of (1) above an Excess Amount still exists, any Elective
Deferral Contributions that are the basis for Matching Contributions (plus attributable
earnings), to the extent they would reduce the Excess Amount, will be distributed to the
Participant. Concurrently with the distribution of such Elective Deferral Contributions, any
Matching Contributions which relate to any Elective Deferral Contributions distributed in the
preceding sentence, to the extent such application would reduce the Excess Amount, will be
applied as provided in (3) or (4) below:




(3) If after the application of (2) above an Excess Amount still exists, and the Participant
is covered by the Plan at the end of the Limitation Year, the Excess Amount in the
Participant’s Account will be used to reduce Employer Contributions for such Participant in
the next Limitation Year, and each succeeding Limitation Year if necessary.




(4) If after the application of (2) above an Excess Amount still exists, and the Participant
is not covered by the Plan at the end of the Limitation Year, the Excess Amount will be held
unallocated in a suspense account. The suspense account will be applied to reduce future
Employer Contributions for all remaining Participants in the next Limitation Year, and each
succeeding Limitation Year if necessary.




(5) If a suspense account is in existence at any time during a Limitation Year pursuant to
this (e), it will participate in the allocation of investment gains or losses. If a suspense
account is in existence at any time during a particular Limitation Year, all amounts in the
suspense account must be allocated and reallocated to Participant’s Accounts before any
Employer Contributions may be made to the Plan for that Limitation Year. Excess Amounts held
in a suspense account may not be distributed to Participants or former Participants.



     (f) This (f) applies if, in addition to this Plan, the Participant is covered under another
qualified defined contribution plan maintained by the Employer, a welfare benefit fund maintained
by the Employer, an individual medical account maintained by the Employer, or a simplified employee
pension maintained by the Employer which provides an Annual Addition during any Limitation Year.
The Annual Additions which may be credited to a Participant’s Account under this Plan for any such
Limitation Year will not exceed the Maximum Permissible Amount, reduced by the Annual Additions
credited to a Participant’s account under the other qualified defined contribution plans, welfare
benefit funds, individual medical accounts, and simplified employee pensions for the same
Limitation Year. If the Annual Additions with respect to the Participant under other qualified
defined contribution plans, welfare benefit funds, individual medical accounts, and simplified
employee pensions maintained by the Employer are less than the Maximum Permissible Amount, and the
Employer Contribution that would otherwise be contributed or allocated to the Participant’s Account
under this Plan would cause the Annual Additions for the Limitation Year to exceed this limitation,
the amount contributed or allocated will be reduced so that the Annual Additions under all such
plans and funds for the Limitation Year will equal the Maximum Permissible Amount. If the Annual
Additions with respect to the Participant under such other qualified defined contribution plans,
welfare benefit funds, individual medical accounts, and simplified employee pensions in the
aggregate are equal to or greater than the Maximum Permissible Amount, no amount will be
contributed or allocated to the Participant’s Account under this Plan for the Limitation Year.



     (g) Prior to determining the Participant’s actual Compensation for the Limitation Year, the
Employer may determine the Maximum Permissible Amount for a Participant in the manner described in
(c) above.



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



     (i) If pursuant to (h) above or as a result of the allocation of forfeitures or as a result of
a reasonable error in determining the amount of elective deferrals (within the meaning of Code
Section 402(g)(3)) that may be made with respect to any individual under the limits of Code Section
415, a Participant’s Annual Additions under this Plan and such other plans would result in an
Excess Amount for a Limitation Year, the Excess Amount will be deemed to consist of the Annual
Additions last allocated, except that Annual Additions attributable to a simplified employee
pension will be deemed to have been allocated first, followed by Annual Additions to a welfare
benefit fund or individual medical account, regardless of the actual allocation date.



     (j) If an Excess Amount was allocated to a Participant on an allocation date of this Plan
which coincides with an allocation date of another plan, the Excess Amount attributed to this Plan
will be the product of:




(1) the total Excess Amount allocated as of such date, times





(2) the ratio of (i) the Annual Addition allocated to the Participant for the Limitation Year
as of such date under this Plan to (ii) the total Annual Additions allocated to the
Participant for the Limitation Year as of such




 










 







date under this and all other qualified defined contribution plans.




	 	(k)	 	Any Excess Amount attributed to this Plan will be disposed of in the manner described in
(e) above.





SECTION 3.05—EXCESS AMOUNTS.





	 	(a)	 	Definitions. For the purposes of this section, the following terms are
defined:
	 
	 	 	 	ACP means the average (expressed as a percentage) of the Contribution Percentages of the
Eligible Participants in a group.
	 
	 	 	 	ADP means the average (expressed as a percentage) of the Deferral Percentages of the
Eligible Participants in a group.
	 
	 	 	 	Aggregate Limit means the greater of:
	 
	 	(1)	 	The sum of:






(i) 125 percent of the greater of the ADP of the Nonhighly Compensated Employees for the
prior Plan Year or the ACP of the Nonhighly Compensated Employees under the plan subject to
Code Section 401(m) for the Plan Year beginning with or within the prior Plan Year of the
cash or deferred arrangement, and




(ii) the lesser of 200 percent or 2 percent plus the lesser of such ADP or ACP.




	 	(2)	 	The sum of:






(i) 125 percent of the lesser of the ADP of the Nonhighly Compensated Employees for the prior
Plan Year or the ACP of the Nonhighly Compensated Employees under the plan subject to Code
Section 401(m) for the Plan Year beginning with or within the prior Plan Year of the cash or
deferred arrangement, and




(ii) the lesser of 200 percent or 2 percent plus the greater of such ADP or ACP.


If the Employer has elected to use the current year testing method, then, in calculating the
Aggregate Limit for a particular Plan Year, the Nonhighly Compensated Employees’ ADP and ACP for
that Plan Year, instead of the prior Plan Year, is used.



Contribution Percentage means the ratio (expressed as a percentage) of the Eligible Participant’s
Contribution Percentage Amounts to the Eligible Participant’s Compensation for the Plan Year
(whether or not the Eligible Participant was an Eligible Participant for the entire Plan Year). In
modification of the foregoing, Compensation shall be limited to the Compensation received while an
Eligible Participant. For an Eligible Participant for whom such Contribution Percentage Amounts
for the Plan Year are zero, the percentage is zero.



Contribution Percentage Amounts means the sum of the Participant Contributions and Matching
Contributions (that are not Qualified Matching Contributions taken into account for purposes of the
ADP Test) made under the Plan on behalf of the Eligible Participant for the Plan Year. Such
Contribution Percentage Amounts shall not include Matching Contributions that are forfeited either
to correct Excess Aggregate Contributions or because the Contributions to which they relate are
Excess Elective Deferrals, Excess Contributions, or Excess Aggregate Contributions. Under such
rules as the Secretary of the Treasury shall prescribe, in determining the Contribution Percentage
the Employer may elect to include Qualified Nonelective Contributions under this Plan which were
not used in computing the Deferral Percentage. The Employer may also elect to use Elective
Deferral Contributions in computing the Contribution Percentage so long as the ADP Test is met
before the Elective Deferral Contributions are used in the ACP Test and continues to be met
following the exclusion of those Elective Deferral Contributions that are used to meet the ACP
Test.



Deferral Percentage means the ratio (expressed as a percentage) of Elective Deferral Contributions
under this Plan on behalf of the Eligible Participant for the Plan Year to the Eligible
Participant’s Compensation for the Plan Year (whether or not the Eligible Participant was an
Eligible Participant for the entire Plan Year). In modification of the foregoing, Compensation
shall be limited to the Compensation received while an Eligible Participant. The Elective Deferral
Contributions used to determine the Deferral Percentage shall include Excess Elective Deferrals
(other than Excess Elective Deferrals of Nonhighly Compensated Employees that arise solely from
Elective Deferral Contributions made under this Plan or any other plans of the Employer or a
Controlled Group member), but shall exclude Elective Deferral Contributions that are used in
computing the Contribution Percentage (provided the ADP Test is satisfied both with and


 









 






without exclusion of these Elective Deferral Contributions). Under such rules as the Secretary of
the Treasury shall prescribe, the Employer may elect to include Qualified Nonelective Contributions
and Qualified Matching Contributions under this Plan in computing the Deferral Percentage. For an
Eligible Participant for whom such contributions on his behalf for the Plan Year are zero, the
percentage is zero.



Elective Deferral Contributions means any employer contributions made to a plan at the election of
a participant, in lieu of cash compensation, and shall include contributions made pursuant to a
salary reduction agreement or other deferral mechanism. With respect to any taxable year, a
participant’s Elective Deferral Contributions are the sum of all employer contributions made on
behalf of such participant pursuant to an election to defer under any qualified cash or deferred
arrangement described in Code Section 401(k), any salary reduction simplified employee pension plan
described in Code Section 408(k)(6), any SIMPLE IRA plan described in Code Section 408(p), any
eligible deferred compensation plan under Code Section 457, any plan described under Code Section
501(c)(18), and any employer contributions made on behalf of a participant for the purchase of an
annuity contract under Code Section 403(b) pursuant to a salary reduction agreement. Elective
Deferral Contributions shall not include any deferrals properly distributed as excess annual
additions.



Eligible Participant means, for purposes of determining the Deferral Percentage, any Employee who
is otherwise entitled to make Elective Deferral Contributions under the terms of the Plan for the
Plan Year. Eligible Participant means, for purposes of determining the Contribution Percentage,
any Employee who is eligible (i) to make a Participant Contribution or an Elective Deferral
Contribution (if the Employer takes such contributions into account in the calculation of the
Contribution Percentage), or (ii) to receive a Matching Contribution (including forfeitures) or a
Qualified Matching Contribution. If a Participant Contribution is required as a condition of
participation in the Plan, any Employee who would be a Participant in the Plan if such Employee
made such a contribution shall be treated as an Eligible Participant on behalf of whom no
Participant Contributions are made.



Excess Aggregate Contributions means, with respect to any Plan Year, the excess of:





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




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


Such determination shall be made after first determining Excess Elective Deferrals and then
determining Excess Contributions.



Excess Contributions means, with respect to any Plan Year, the excess of:




     (1) The aggregate amount of employer contributions actually taken into account in computing
the Deferral Percentage of Highly Compensated Employees for such Plan Year, over



     (2) The maximum amount of such contributions permitted by the ADP Test (determined by
hypothetically reducing contributions made on behalf of Highly Compensated Employees in the order
of the Deferral Percentages, beginning with the highest of such percentages).




Such determination shall be made after first determining Excess Elective Deferrals.




Excess Elective Deferrals means those Elective Deferral Contributions that are includible in a
Participant’s gross income under Code Section 402(g) to the extent such Participant’s Elective
Deferral Contributions for a taxable year exceed the dollar limitation under such Code
section. Excess Elective Deferrals shall be treated as Annual Additions, as defined in the
CONTRIBUTION LIMITATION SECTION of this article, under the Plan, unless such amounts are
distributed no later than the first April 15 following the close of the Participant’s taxable
year.




Matching Contributions means employer contributions made to this or any other defined
contribution plan, or to a contract described in Code Section 403(b), on behalf of a
participant on account of a Participant Contribution made by such participant, or on account
of a participant’s Elective Deferral Contributions, under a plan



 









 







maintained by the Employer or a Controlled Group member.




Participant Contributions means contributions made to the plan by or on behalf of a
participant that are included in the participant’s gross income in the year in which made and
that are maintained under a separate account to which the earnings and losses are allocated.




Qualified Matching Contributions means Matching Contributions which are subject to the
distribution and nonforfeitability requirements under Code Section 401(k) when made.




Qualified Nonelective Contributions means any employer contributions (other than Matching
Contributions) which an employee may not elect to have paid to him in cash instead of being
contributed to the plan and which are subject to the distribution and nonforfeitability
requirements under Code Section 401(k) when made.




	(b)	 	Excess Elective Deferrals. A Participant may assign to this Plan any Excess Elective
Deferrals made during a taxable year of the Participant by notifying the Plan Administrator in
writing on or before the first following March 1 of the amount of the Excess Elective
Deferrals to be assigned to the Plan. A Participant is deemed to notify the Plan Administrator
of any Excess Elective Deferrals that arise by taking into account only those Elective
Deferral Contributions made to this Plan and any other plan of the Employer or a Controlled
Group member. The Participant’s claim for Excess Elective Deferrals shall be accompanied by
the Participant’s written statement that if such amounts are not distributed, such Excess
Elective Deferrals will exceed the limit imposed on the Participant by Code Section 402(g) for
the year in which the deferral occurred. The Excess Elective Deferrals assigned to this Plan
cannot exceed the Elective Deferral Contributions allocated under this Plan for such taxable
year.
	 
	 	 	Notwithstanding any other provisions of the Plan, Elective Deferral Contributions in an amount
equal to the Excess Elective Deferrals assigned to this Plan, plus any income and minus any
loss allocable thereto, shall be distributed no later than April 15 to any Participant to
whose Account Excess Elective Deferrals were assigned for the preceding year and who claims
Excess Elective Deferrals for such taxable year.
	 
	 	 	The Excess Elective Deferrals shall be adjusted for income or loss. The income or loss
allocable to such Excess Elective Deferrals shall be equal to the income or loss allocable to
the Participant’s Elective Deferral Contributions for the taxable year in which the excess
occurred multiplied by a fraction. The numerator of the fraction is the Excess Elective
Deferrals. The denominator of the fraction is the closing balance without regard to any
income or loss occurring during such taxable year (as of the end of such taxable year) of the
Participant’s Account resulting from Elective Deferral Contributions.
	 
	 	 	Any Matching Contributions which were based on the Elective Deferral Contributions which are
distributed as Excess Elective Deferrals, plus any income and minus any loss allocable
thereto, shall be forfeited.
	 
	(c)	 	ADP Test. As of the end of each Plan Year after Excess Elective Deferrals have been
determined, the Plan must satisfy the ADP Test. The ADP Test shall be satisfied using the
prior year testing method, unless the Employer has elected to use the current year testing
method.






	 	(1)	 	Prior Year Testing Method. The ADP for a Plan Year for Eligible
Participants who are Highly Compensated Employees for each Plan Year and the prior year’s
ADP for Eligible Participants who were Nonhighly Compensated Employees for the prior Plan
Year must satisfy one of the following tests:






(i) The ADP for a Plan Year for Eligible Participants who are Highly Compensated Employees for
the Plan Year shall not exceed the prior year’s ADP for Eligible Participants who were
Nonhighly Compensated Employees for the prior Plan Year multiplied by
1.25; or


(ii) The ADP for a Plan Year for Eligible Participants who are Highly Compensated Employees
for the Plan Year:




	 	A.	 	shall not exceed the prior year’s ADP for Eligible
Participants who were Nonhighly Compensated Employees for the prior Plan Year
multiplied by 2, and





 









 











	 	B.	 	the difference between such ADPs is not more than 2.






If this is not a successor plan, for the first Plan Year the Plan permits any
Participant to make Elective Deferral Contributions, for purposes of the foregoing
tests, the prior year’s Nonhighly Compensated Employees’ ADP shall be 3 percent, unless
the Employer has elected to use the Plan Year’s ADP for these Eligible Participants.




	 	(2)	 	Current Year Testing Method. The ADP for a Plan Year for Eligible
Participants who are Highly Compensated Employees for each Plan Year and the ADP for
Eligible Participants who are Nonhighly Compensated Employees for the Plan Year must
satisfy one of the following tests:





     (i) The ADP for a Plan Year for Eligible Participants who are Highly Compensated Employees for
the Plan Year shall not exceed the ADP for Eligible Participants who are Nonhighly Compensated
Employees for the Plan Year multiplied by 1.25; or



     (ii) The ADP for a Plan Year for Eligible Participants who are Highly Compensated Employees
for the Plan Year:




	 	A.	 	shall not exceed the ADP for Eligible Participants who are Nonhighly
Compensated Employees for the Plan Year multiplied by 2, and
	 
	 	B.	 	the difference between such ADP’s is not more than 2.






If the Employer has elected to use the current year testing method, that election cannot be
changed unless (i) the Plan has been using the current year testing method for the preceding
five Plan Years, or if less, the number of Plan Years the Plan has been in existence; or (ii)
the Plan otherwise meets one of the conditions specified in Internal Revenue Service Notice
98-1 (or superseding guidance) for changing from the current year testing method.


A Participant is a Highly Compensated Employee for a particular Plan Year if he meets the
definition of a Highly Compensated Employee in effect for that Plan Year. Similarly, a Participant
is a Nonhighly Compensated Employee for a particular Plan Year if he does not meet the definition
of a Highly Compensated Employee in effect for that Plan Year.



The Deferral Percentage for any Eligible Participant who is a Highly Compensated Employee for the
Plan Year and who is eligible to have Elective Deferral Contributions (and Qualified Nonelective
Contributions or Qualified Matching Contributions, or both, if treated as Elective Deferral
Contributions for purposes of the ADP Test) allocated to his account under two or more arrangements
described in Code Section 401(k) that are maintained by the Employer or a Controlled Group member
shall be determined as if such Elective Deferral Contributions (and, if applicable, such Qualified
Nonelective Contributions or Qualified Matching Contributions, or both) were made under a single
arrangement. If a Highly Compensated Employee participates in two or more cash or deferred
arrangements that have different plan years, all cash or deferred arrangements ending with or
within the same calendar year shall be treated as a single arrangement. The foregoing
notwithstanding, certain plans shall be treated as separate if mandatorily disaggregated under the
regulations of Code Section 401(k).



In the event this Plan satisfies the requirements of Code Section 401(k), 401(a)(4), or 410(b) only
if aggregated with one or more other plans, or if one or more other plans satisfy the requirements
of such Code sections only if aggregated with this Plan, then this section shall be applied by
determining the Deferral Percentage of Employees as if all such plans were a single plan. Any
adjustments to the Nonhighly Compensated Employee ADP for the prior year shall be made in
accordance with Internal Revenue Service Notice 98-1 (or superseding guidance), unless the Employer
has elected to use the current year testing method. Plans may be aggregated in order to satisfy
Code Section 401(k) only if they have the same plan year and use the same testing method for the
ADP Test.



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


 









 






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





If the Plan Administrator should determine during the Plan Year that the ADP Test is not being
met, the Plan Administrator may limit the amount of future Elective Deferral Contributions of
the Highly Compensated Employees.




Notwithstanding any other provisions of this Plan, Excess Contributions, plus any income and
minus any loss allocable thereto, shall be distributed no later than the last day of each Plan
Year to Participants to whose Accounts such Excess Contributions were allocated for the
preceding Plan Year. Excess Contributions are allocated to the Highly Compensated Employees
with the largest amounts of employer contributions taken into account in calculating the ADP
Test for the year in which the excess arose, beginning with the Highly Compensated Employee
with the largest amount of such employer contributions and continuing in descending order
until all of the Excess Contributions have been allocated. For purposes of the preceding
sentence, the “largest amount” is determined after distribution of any Excess Contributions.
If such excess amounts are distributed more than 2 1/2 months after the last day of the Plan
Year in which such excess amounts arose, a 10 percent excise tax shall be imposed on the
employer maintaining the plan with respect to such amounts.




Excess Contributions shall be treated as Annual Additions, as defined in the CONTRIBUTION
LIMITATION SECTION of this article.




The Excess Contributions shall be adjusted for income or loss. The income or loss allocable
to such Excess Contributions allocated to each Participant shall be equal to the income or
loss allocable to the Participant’s Elective Deferral Contributions (and, if applicable,
Qualified Nonelective Contributions or Qualified Matching Contributions, or both) for the Plan
Year in which the excess occurred multiplied by a fraction. The numerator of the fraction is
the Excess Contributions. The denominator of the fraction is the closing balance without
regard to any income or loss occurring during such Plan Year (as of the end of such Plan Year)
of the Participant’s Account resulting from Elective Deferral Contributions (and Qualified
Nonelective Contributions or Qualified Matching Contributions, or both, if such contributions
are included in the ADP Test).




Excess Contributions allocated to a Participant shall be distributed from the Participant’s
Account resulting from Elective Deferral Contributions. If such Excess Contributions exceed
the balance in the Participant’s Account resulting from Elective Deferral Contributions, the
balance shall be distributed from the Participant’s Account resulting from Qualified Matching
Contributions (if applicable) and Qualified Nonelective Contributions, respectively.




Any Matching Contributions which were based on the Elective Deferral Contributions which are
distributed as Excess Contributions, plus any income and minus any loss allocable thereto,
shall be forfeited.




	(d)	 	ACP Test. As of the end of each Plan Year, the Plan must satisfy the ACP Test. The
ACP Test shall be satisfied using the prior year testing method, unless the Employer has
elected to use the current year testing method.






	 	(1)	 	Prior Year Testing Method. The ACP for a Plan Year for Eligible
Participants who are Highly Compensated Employees for each Plan Year and the prior year’s
ACP for Eligible Participants who were Nonhighly Compensated Employees for the prior Plan
Year must satisfy one of the following tests:





     (i) The ACP for the Plan Year for Eligible Participants who are Highly Compensated Employees
for the Plan Year shall not exceed the prior year’s ACP for Eligible Participants who were
Nonhighly Compensated Employees for the prior Plan Year multiplied by 1.25; or



     (ii) The ACP for a Plan Year for Eligible Participants who are Highly Compensated Employees
for the Plan Year:




	 	A.	 	shall not exceed the prior year’s ACP for Eligible Participants who
were Nonhighly Compensated Employees for the prior Plan Year multiplied by 2, and





 









 






	 	B.	 	the difference between such ACPs is not more than 2.






If this is not a successor plan, for the first Plan Year the Plan permits any Participant to
make Participant Contributions, provides for Matching Contributions, or both, for purposes of
the foregoing tests, the prior year’s Nonhighly Compensated Employees’ ACP shall be 3 percent,
unless the Employer has elected to use the Plan Year’s ACP for these Eligible Participants.




	 	(2)	 	Current Year Testing Method. The ACP for a Plan Year for Eligible Participants who
are Highly Compensated Employees for each Plan Year and the ACP for Eligible Participants who
are Nonhighly Compensated Employees for the Plan Year must satisfy one of the following tests:





     (i) The ACP for a Plan Year for Eligible Participants who are Highly Compensated Employees for
the Plan Year shall not exceed the ACP for Eligible Participants who are Nonhighly Compensated
Employees for the Plan Year multiplied by 1.25; or



     (ii) The ACP for a Plan Year for Eligible Participants who are Highly Compensated Employees
for the Plan Year:




	 	A.	 	shall not exceed the ACP for Eligible Participants who are Nonhighly
Compensated Employees for the Plan Year multiplied by 2, and
	 
	 	B.	 	the difference between such ACPs is not more than 2.






If the Employer has elected to use the current year testing method, that election cannot be
changed unless (i) the Plan has been using the current year testing method for the preceding
five Plan Years, or if less, the number of Plan Years the Plan has been in existence; or (ii)
the Plan otherwise meets one of the conditions specified in Internal Revenue Service Notice
98-1 (or superseding guidance) for changing from the current year testing method.


A Participant is a Highly Compensated Employee for a particular Plan Year if he meets the
definition of a Highly Compensated Employee in effect for that Plan Year. Similarly, a Participant
is a Nonhighly Compensated Employee for a particular Plan Year if he does not meet the definition
of a Highly Compensated Employee in effect for that Plan Year.



Multiple Use. If one or more Highly Compensated Employees participate in both a cash or
deferred arrangement and a plan subject to the ACP Test maintained by the Employer or a Controlled
Group member, and the sum of the ADP and ACP of those Highly Compensated Employees subject to
either or both tests exceeds the Aggregate Limit, then the Contribution Percentage of those Highly
Compensated Employees who also participate in a cash or deferred arrangement will be reduced in the
manner described below for allocating Excess Aggregate Contributions so that the limit is not
exceeded. The amount by which each Highly Compensated Employee’s Contribution Percentage is
reduced shall be treated as an Excess Aggregate Contribution. The ADP and ACP of the Highly
Compensated Employees are determined after any corrections required to meet the ADP Test and ACP
Test and are deemed to be the maximum permitted under such tests for the Plan Year. Multiple use
does not occur if either the ADP or ACP of the Highly Compensated Employees does not exceed 1.25
multiplied by the ADP and ACP, respectively, of the Nonhighly Compensated Employees.



The Contribution Percentage for any Eligible Participant who is a Highly Compensated Employee for
the Plan Year and who is eligible to have Contribution Percentage Amounts allocated to his account
under two or more plans described in Code Section 401(a) or arrangements described in Code Section
401(k) that are maintained by the Employer or a Controlled Group member shall be determined as if
the total of such Contribution Percentage Amounts was made under each plan. If a Highly Compensated
Employee participates in two or more cash or deferred arrangements that have different plan years,
all cash or deferred arrangements ending with or within the same calendar year shall be treated as
a single arrangement. The foregoing notwithstanding, certain plans shall be treated as separate if
mandatorily disaggregated under the regulations of Code Section 401(m).



In the event this Plan satisfies the requirements of Code Section 401(m), 401(a)(4), or 410(b) only
if aggregated with


 









 






one or more other plans, or if one or more other plans satisfy the requirements of such Code
sections only if aggregated with this Plan, then this section shall be applied by determining the
Contribution Percentage of Employees as if all such plans were a single plan. Any adjustments to
the Nonhighly Compensated Employee ACP for the prior year shall be made in accordance with Internal
Revenue Service Notice 98-1 (or superseding guidance), unless the Employer has elected to use the
current year testing method. Plans may be aggregated in order to satisfy Code Section 401(m) only
if they have the same plan year and use the same testing method for the ACP Test.



For purposes of the ACP Test, Participant Contributions are considered to have been made in the
Plan Year in which contributed to the Plan. Matching Contributions and Qualified Nonelective
Contributions will be considered to have been made for a Plan Year if made no later than the end of
the 12-month period beginning on the day after the close of the Plan Year.



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



Notwithstanding any other provisions of this Plan, Excess Aggregate Contributions, plus any income
and minus any loss allocable thereto, shall be forfeited, if not vested, or distributed, if vested,
no later than the last day of each Plan Year to Participants to whose Accounts such Excess
Aggregate Contributions were allocated for the preceding Plan Year. Excess Aggregate Contributions
are allocated to the Highly Compensated Employees with the largest Contribution Percentage Amounts
taken into account in calculating the ACP Test for the year in which the excess arose, beginning
with the Highly Compensated Employee with the largest amount of such Contribution Percentage
Amounts and continuing in descending order until all of the Excess Aggregate Contributions have
been allocated. For purposes of the preceding sentence, the “largest amount” is determined after
distribution of any Excess Aggregate Contributions. If such Excess Aggregate Contributions are
distributed more than 2 1/2 months after the last day of the Plan Year in which such excess amounts
arose, a 10 percent excise tax shall be imposed on the employer maintaining the plan with respect
to such amounts.



Excess Aggregate Contributions shall be treated as Annual Additions, as defined in the CONTRIBUTION
LIMITATION SECTION of this article.



The Excess Aggregate Contributions shall be adjusted for income or loss. The income or loss
allocable to such Excess Aggregate Contributions allocated to each Participant shall be equal to
the income or loss allocable to the Participant’s Contribution Percentage Amounts for the Plan Year
in which the excess occurred multiplied by a fraction. The numerator of the fraction is the Excess
Aggregate Contributions. The denominator of the fraction is the closing balance without regard to
any income or loss occurring during such Plan Year (as of the end of such Plan Year) of the
Participant’s Account resulting from Contribution Percentage Amounts.



Excess Aggregate Contributions allocated to a Participant shall be distributed from the
Participant’s Account resulting from Participant Contributions that are not required as a condition
of employment or participation or for obtaining additional benefits from Employer Contributions.
If such Excess Aggregate Contributions exceed the balance in the Participant’s Account resulting
from such Participant’s Contributions, the balance shall be forfeited, if not vested, or
distributed, if vested, on a pro-rata basis from the Participant’s Account resulting from
Contribution Percentage Amounts.




     (e) Employer Elections. The Employer has made an election to use the current
year testing method.



SECTION 3.06—401(k) SAFE HARBOR PROVISIONS.





	 	(a)	 	Rules of Application.





     (1) The provisions of this section apply on and after December 1, 2002. Any provisions
relating to the ADP Test in the EXCESS AMOUNTS SECTION of this article do not apply for any Plan
Year in which the provisions of this section apply unless the plan is amended to revoke the 401(k)
provisions during the Plan Year in accordance with (e) below. Any provisions relating to the ACP
Test in the EXCESS AMOUNTS SECTION of this article do not apply with respect to Matching
Contributions for any Plan Year in which the provisions of this section apply unless the Plan is



 









 







amended to revoke the 401(k) provisions during the Plan Year in accordance with (e) below.



     (2) The provisions of this section shall not apply to future Plan Years unless the Plan Year
is 12 months long.



     (3) To the extent that any other provision of the Plan is inconsistent with the provisions of
this section, the provisions of this section shall govern.




	 	(b)	 	ADP Test Safe Harbor.





     (1) Contributions. The Plan is satisfying the ADP Test Safe Harbor using Qualified
Matching Contributions as provided in the EMPLOYER CONTRIBUTIONS SECTION of this article.



     (2) Notice Requirement. At least 30 days, but not more than 90 days, before the
beginning of the Plan Year, the Employer shall provide each Active Participant a comprehensive
notice of his rights and obligations under the Plan, including a description of the Qualified
Matching Contributions that will be made to the Plan to satisfy the ADP Test Safe Harbor.




The notice shall be written in a manner calculated to be understood by the average
Active Participant.



If an Employee becomes an Active Participant after the 90th day before the beginning of
the Plan Year and does not receive this notice for that reason, the notice must be
provided no more than 90 days before he becomes an Active Participant but not later than
the date he becomes an Active Participant.



     (3)
Election Periods. In addition to any other election periods provided under
the Plan, each Active Participant may make or modify a deferral election during the
30-day period immediately following receipt of the notice described in (2) above.



     (c) ACP Test Safe Harbor. Matching Contributions are limited as provided in the
EMPLOYER CONTRIBUTIONS SECTION of this article.




	 	(d)	 	ACP Test.





     (1) Application. The Plan does not provide for Participant Contributions, as defined
in the EXCESS AMOUNTS SECTION of this article. Any provisions relating to the ACP Test in the
EXCESS AMOUNTS SECTION of this article shall not apply for any Plan Year in which the provisions of
this section apply unless the Plan is amended to revoke the 401(k) safe harbor provisions during
the Plan Year in accordance with (e) below.



     (2) Multiple Use. The provisions of the EXCESS AMOUNTS SECTION of this article
regarding the Aggregate Limit, as defined in the EXCESS AMOUNTS SECTION of this article, shall not
apply.



     (e) Revocation of 401(k) Safe Harbor Provisions. The Employer may amend the Plan to
revoke the 401(k) safe harbor provisions during any Plan Year. Active Participants shall be
provided a supplemental notice that explains the consequences of the amendment, informs them of the
effective date of the elimination of the Qualified Matching Contributions and gives them a
reasonable opportunity (including a reasonable period) to change the amount of their Elective
Deferral Contributions. The effective date of the revocation cannot be earlier than the later of
 (i) 30 days after the Active Participants are given such notice, and (ii) the date the amendment
revoking such provisions is adopted.


If the 401(k) safe harbor provisions are revoked, the Employer shall perform the ADP Test and ACP
Test for the entire Plan Year using the current year testing method described in the EXCESS AMOUNTS
SECTION of this article. The Employer shall make the Qualified Matching Contributions for the
period prior to the effective date of the revocation.




ARTICLE IV




INVESTMENT OF CONTRIBUTIONS




SECTION 4.01—INVESTMENT AND TIMING OF CONTRIBUTIONS.




     The handling of Contributions is governed by the provisions of the Trust Agreement, the
Annuity Contract, and any other funding arrangement in which the Plan Fund is or may be held or
invested. To the extent permitted by the Trust Agreement, Annuity Contract, or other funding
arrangement, the parties named below shall direct the Contributions to the guaranteed benefit
policy portion of the Annuity Contract, any of the investment options available under the Annuity
Contract, or any of the investment vehicles available under the Trust Agreement and may request the
transfer of amounts resulting from those Contributions between such investment options and
investment vehicles or the



 









 







transfer of amounts between the guaranteed benefit policy portion of the Annuity Contract and
such investment options and investment vehicles. A Participant may not direct the Trustee or
Insurer to invest the Participant’s Account in collectibles. Collectibles mean any work of art,
rug or antique, metal or gem, stamp or coin, alcoholic beverage, or other tangible personal
property specified by the Secretary of the Treasury. However, for tax years beginning after
December 31, 1997, certain coins and bullion as provided in Code Section 408(m)(3) shall not be
considered collectibles. To the extent that a Participant who has investment direction fails to
give timely direction, the Primary Employer shall direct the investment of his Account. If the
Primary Employer has investment direction, such Account shall be invested ratably in the guaranteed
benefit policy portion of the Annuity Contract, the investment options available under the Annuity
Contract, or the investment vehicles available under the Trust Agreement in the same manner as the
Accounts of all other Participants who do not direct their investments. The Primary Employer shall
have investment direction for amounts which have not been allocated to Participants. To the extent
an investment is no longer available, the Primary Employer may require that amounts currently held
in such investment be reinvested in other investments.



     At least annually, the Named Fiduciary shall review all pertinent Employee information and
Plan data in order to establish the funding policy of the Plan and to determine appropriate methods
of carrying out the Plan’s objectives. The Named Fiduciary shall inform the Trustee and any
Investment Manager of the Plan’s short-term and long-term financial needs so the investment policy
can be coordinated with the Plan’s financial requirements.



     (a) Employer Contributions other than Elective Deferral Contributions: The Participant shall
direct the investment of such Employer Contributions and transfer of amounts resulting from those
Contributions.



     (b) Elective Deferral Contributions: The Participant shall direct the investment of Elective
Deferral Contributions and transfer of amounts resulting from those Contributions.



     (c) Rollover Contributions: The Participant shall direct the investment of Rollover
Contributions and transfer of amounts resulting from those Contributions.



     However, the Named Fiduciary may delegate to the Investment Manager investment discretion for
Contributions and amounts which are not subject to Participant direction.



     The Employer shall pay to the Insurer or Trustee, as applicable, the Elective Deferral
Contributions and Qualified Matching Contributions for each Plan Year not later than the end of the
12-month period immediately following the Plan Year for which they are deemed to be paid.



     However, the Employer shall pay to the Insurer or Trustee, as applicable, the Qualified
Matching Contributions calculated based on Elective Deferral Contributions and Compensation for the
pay period not later than the last day of the following Plan-year Quarter.



     All Contributions are forwarded by the Employer to the Trustee to be deposited in the Trust
Fund or to the Insurer to be deposited under the Annuity Contract, as applicable. Contributions
that are accumulated through payroll deduction shall be paid to the Trustee or Insurer, as
applicable, by the earlier of (i) the date the Contributions can reasonably be segregated from the
Employer’s assets, or (ii) the 15th business day of the month following the month in which the
Contributions would otherwise have been paid in cash to the Participant.



SECTION 4.01A—INVESTMENT IN QUALIFYING EMPLOYER SECURITIES.




     50%
of the Matching Contribution will be invested in
Qualifying Employer Securities at the time the Contribution is made.






 









 





     For purposes of determining the annual valuation of the Plan, and for reporting to
Participants and regulatory authorities, the assets of the Plan shall be valued at least annually
on the Valuation Date which corresponds to the last day of the Plan Year. The fair market value of
Qualifying Employer Securities shall be determined on such Valuation Date. The prices of
Qualifying Employer Securities as of the date of the transaction shall apply for purposes of
valuing distributions and other transactions of the Plan to the extent such value is representative
of the fair market value of such securities in the opinion of the Plan Administrator. The value of
a Participant’s Account held in the Qualifying Employer Securities Fund may be expressed in units.



     If the Qualifying Employer Securities are not publicly traded, or if an extremely thin market
exists for such securities so that reasonable valuation may not be obtained from the market place,
then such securities must be valued at least annually by an independent appraiser who is not
associated with the Employer, the Plan Administrator, the Trustee, or any person related to any
fiduciary under the Plan. The independent appraiser may be associated with a person who is merely
a contract administrator with respect to the Plan, but who exercises no discretionary authority and
is not a plan fiduciary.



     If there is a public market for Qualifying Employer Securities of the type held by the Plan,
then the Plan Administrator may use as the value of the securities the price at which such
securities trade in such market. If the Qualifying Employer Securities do not trade on the
relevant date, or if the market is very thin on such date, then the Plan Administrator may use for
the valuation the next preceding trading day on which the trading prices are representative of the
fair market value of such securities in the opinion of the Plan Administrator.



     Cash dividends payable on the Qualifying Employer Securities shall be reinvested in additional
shares of such securities. In the event of any cash or stock dividend or any stock split, such
dividend or split shall be credited to the Accounts based on the number of shares of Qualifying
Employer Securities credited to each Account as of the payable date of such dividend or split.



     All purchases of Qualifying Employer Securities shall be made at a price, or prices, which, in
the judgement of the Plan Administrator, do not exceed the fair market value of such securities.



     In the event that the Trustee acquires Qualifying Employer Securities by purchase from a
“disqualified person” as defined in Code Section 4975(e)(2) or from a “party-in-interest” as
defined in ERISA Section 3(14), the terms of such purchase shall contain the provision that in the
event there is a final determination by the Internal Revenue Service, the Department of Labor, or
court of competent jurisdiction that the fair market value of such securities as of the date of
purchase was less than the purchase price paid by the Trustee, then the seller shall pay or
transfer, as the case may be, to the Trustee an amount of cash or shares of Qualifying Employer
Securities equal in value to the difference between the purchase price and such fair market value
for all such shares. In the event that cash or shares of Qualifying Employer Securities are paid or
transferred to the Trustee under this provision, such securities shall be valued at their fair
market value as of the date of such purchase, and interest at a reasonable rate from the date of
purchase to the date of payment or transfer shall be paid by the seller on the amount of cash paid.



     The Plan Administrator may direct the Trustee to sell, resell, or otherwise dispose of
Qualifying Employer Securities to any person, including the Employer, provided that any such sales
to any disqualified person or party-in-interest, including the Employer, will be made at not less
than the fair market value and no commission will be charged. Any such sale shall be made in
conformance with ERISA Section 408(e).



     The Employer is responsible for compliance with any applicable Federal or state securities law
with respect to all aspects of the Plan. If the Qualifying Employer Securities or interest in this
Plan are required to be registered in order to permit investment in the Qualifying Employer
Securities Fund as provided in this section, then such investment will not be effective until the
later of the effective date of the Plan or the date such registration or qualification is
effective. The Employer, at its own expense, will take or cause to be taken any and all such
actions as may be necessary or appropriate to effect such registration or qualification. Further,
if the Trustee is directed to dispose of any Qualifying Employer Securities held under the Plan
under circumstances which require registration or qualification of the securities under applicable
Federal or state securities laws, then the Employer will, at its own expense, take or cause to be
taken any and all such action as may be necessary or appropriate to effect such registration or
qualification. Principal Life Insurance Company shall not be
responsible for any of the reporting requirements under Section 16 of the
Securities Exchange Act.



 









 





ARTICLE V




BENEFITS




SECTION 5.01—RETIREMENT BENEFITS.




     On a Participant’s Retirement Date, his Vested Account shall be distributed to him according
to the distribution of benefits provisions of Article VI and the provisions of the SMALL AMOUNTS
SECTION of Article X.



SECTION 5.02—DEATH BENEFITS.




     If a Participant dies before his Annuity Starting Date, his Vested Account shall be
distributed according to the distribution of benefits provisions of Article VI and the provisions
of the SMALL AMOUNTS SECTION of Article X.



SECTION 5.03—VESTED BENEFITS.




     If an Inactive Participant’s Vested Account is not payable under the SMALL AMOUNTS SECTION of
Article X, he may elect, but is not required, to receive a distribution of his Vested Account after
he ceases to be an Employee. The Participant’s election shall be subject to his spouse’s consent
as provided in the ELECTION PROCEDURES SECTION of Article VI. A distribution under this paragraph
shall be a retirement benefit and shall be distributed to the Participant according to the
distribution of benefits provisions of Article VI.



     A Participant may not elect to receive a distribution under the provisions of this section
after he again becomes an Employee until he subsequently ceases to be an Employee and meets the
requirements of this section.



     If an Inactive Participant does not receive an earlier distribution, upon his Retirement Date
or death, his Vested Account shall be distributed according to the provisions of the RETIREMENT
BENEFITS SECTION or the DEATH BENEFITS SECTION of Article V.



     The Nonvested Account of an Inactive Participant who has ceased to be an Employee shall remain
a part of his Account until it becomes a Forfeiture. However, if he again becomes an Employee so
that his Vesting Percentage can increase, the Nonvested Account may become a part of his Vested
Account.



SECTION 5.04—WHEN BENEFITS START.





	 	(a)	 	Unless otherwise elected, benefits shall begin before the 60th day following the
close of the Plan Year in which the latest date below occurs:






	 	(1)	 	The date the Participant attains age 65 (or Normal Retirement Age, if earlier).
	 
	 	(2)	 	The 10th anniversary of the Participant’s Entry Date.
	 
	 	(3)	 	The date the Participant ceases to be an Employee.






Notwithstanding the foregoing, the failure of a Participant and spouse to consent to a
distribution while a benefit is immediately distributable, within the meaning of the ELECTION
PROCEDURES SECTION of Article VI, shall be deemed to be an election to defer the start of
benefits sufficient to satisfy this section.




The Participant may elect to have his benefits begin after the latest date for beginning
benefits described above, subject to the following provisions of this section. The
Participant shall make the election in writing. Such election must be made before his Normal
Retirement Date or the date he ceases to be an Employee, if later. The election must describe
the form of distribution and the date benefits will begin. The Participant shall not elect a
date for beginning benefits or a form of distribution that would result in a benefit payable
when he dies which would be more than incidental within the meaning of governmental
regulations.




Benefits shall begin on an earlier date if otherwise provided in the Plan. For example, the
Participant’s Retirement Date or Required Beginning Date, as defined in the DEFINITIONS
SECTION of Article VII.



 









 






	(b)	 	The Participant’s Vested Account which results from Elective Deferral Contributions and
Qualified Matching Contributions may not be distributed to a Participant or to his Beneficiary
(or Beneficiaries) in accordance with the Participant’s or Beneficiary’s (or Beneficiaries’)
election, earlier than separation from service, death, or disability. Such amount may also be
distributed upon:





     (1) Termination of the Plan, as permitted in Article VIII.



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



     (3) The disposition by the Employer, if the Employer is a corporation, to an unrelated entity
of the Employer’s interest in a subsidiary, within the meaning of Code Section 409(d)(3), if the
Employer continues to maintain the Plan, but only with respect to Employees who continue employment
with such subsidiary.



     (4) The attainment of age 59 1/2 as permitted in the WITHDRAWAL BENEFITS SECTION of this
article.



     (5) The hardship of the Participant as permitted in the WITHDRAWAL BENEFITS SECTION of this
article.




All distributions that may be made pursuant to one or more of the foregoing
distributable events will be a retirement benefit and shall be distributed to the
Participant according to the distribution of benefit provisions of Article VI. In
addition, distributions that are triggered by (1), (2) and (3) above must be made in a
lump sum. A lump sum shall include a distribution of an annuity contract.



SECTION 5.05—WITHDRAWAL BENEFITS.




     A Participant may withdraw any part of his Vested Account resulting from Rollover
Contributions. A Participant may make only two such withdrawals in any 12-month period.



     A Participant who has attained age 59 1/2 may withdraw any part of his Vested Account which
results from the following Contributions:



     Elective Deferral Contributions



     Matching Contributions



     Discretionary Contributions



     A Participant may make such a withdrawal at any time.



     A Participant may withdraw any part of his Vested Account which results from the following
Contributions:



     Elective Deferral Contributions


in the event of hardship due to an immediate and heavy financial need. Withdrawals from the
Participant’s Account resulting from Elective Deferral Contributions shall be limited to the amount
of the Participant’s Elective Deferral Contributions. Immediate and heavy financial need shall be
limited to: (i) expenses incurred or necessary for medical care, described in Code Section 213(d),
of the Participant, the Participant’s spouse, or any dependents of the Participant (as defined in
Code Section 152); (ii) purchase (excluding mortgage payments) of a principal residence for the
Participant; (iii) payment of tuition, related educational fees, and room and board expenses, for
the next 12 months of post-secondary education for the Participant, his spouse, children, or
dependents; (iv) the need to prevent the eviction of the Participant from his principal residence
or foreclosure on the mortgage of the Participant’s principal residence; or (v) any other
distribution which is deemed by the Commissioner of Internal Revenue to be made on account of
immediate and heavy financial need as provided in Treasury regulations.




     No withdrawal shall be allowed which is not necessary to satisfy such immediate and heavy
financial need. Such withdrawal shall be deemed necessary only if all of the following requirements
are met: (i) the distribution is not in excess of the amount of the immediate and heavy financial
need (including amounts necessary to pay any Federal, state, or local income taxes or penalties
reasonably anticipated to result from the distribution); (ii) the Participant has obtained all
distributions, other than hardship distributions, and all nontaxable loans currently available
under all plans maintained by the Employer; (iii) the Plan, and all other plans maintained by the
Employer, provide that the Participant’s elective contributions and participant contributions will
be suspended for at least 12 months after receipt of the hardship



 









 







distribution; and (iv) the Plan, and all other plans maintained by the Employer, provide that
the Participant may not make elective contributions for the Participant’s taxable year immediately
following the taxable year of the hardship distribution in excess of the applicable limit under
Code Section 402(g) for such next taxable year less the amount of such Participant’s elective
contributions for the taxable year of the hardship distribution. The Plan will suspend elective
contributions and participant contributions for 12 months and limit elective deferrals as provided
in the preceding sentence. A Participant shall not cease to be an Eligible Participant, as defined
in the EXCESS AMOUNTS SECTION of Article III, merely because his elective contributions or
participant contributions are suspended.



     A request for withdrawal shall be made in such manner and in accordance with such rules as the
Employer will prescribe for this purpose (including by means of voice response or other electronic
means under circumstances the Employer permits). Withdrawals shall be a retirement benefit and
shall be distributed to the Participant according to the distribution of benefits provisions of
Article VI. A forfeiture shall not occur solely as a result of a withdrawal.



SECTION 5.06—LOANS TO PARTICIPANTS.




     Loans shall be made available to all Participants on a reasonably equivalent basis. For
purposes of this section, and unless otherwise specified, Participant means any Participant or
Beneficiary who is a party-in-interest as defined in ERISA. Loans shall not be made to Highly
Compensated Employees in an amount greater than the amount made available to other Participants.



     No loans will be made to any shareholder-employee or Owner-employee. For purposes of this
requirement, a shareholder-employee means an employee or officer of an electing small business
(Subchapter S) corporation who owns (or is considered as owning within the meaning of Code Section
318(a)(1)), on any day during the taxable year of such corporation, more than 5 percent of the
outstanding stock of the corporation.



     A loan to a Participant shall be a Participant-directed investment of his Account. The
portion of the Participant’s Account held in the Qualifying Employer Securities Fund may be
redeemed for purposes of a loan only after the amount held in other investment options has been
depleted. The loan is a Trust Fund investment but no Account other than the borrowing
Participant’s Account shall share in the interest paid on the loan or bear any expense or loss
incurred because of the loan.



     The number of outstanding loans shall be limited to one. No more than one loan shall be
approved for any Participant in any 12-month period. The minimum amount of any loan shall be
$1,000.



     Loans must be adequately secured and bear a reasonable rate of interest.



     The amount of the loan shall not exceed the maximum amount that may be treated as a loan under
Code Section 72(p) (rather than a distribution) to the Participant and shall be equal to the lesser
of (a) or (b) below:



     (a) $50,000, reduced by the highest outstanding loan balance of loans during the one-year
period ending on the day before the new loan is made.



     (b) The greater of (1) or (2), reduced by (3) below:




	 	 (1)	 	One-half of the Participant’s Vested Account.
	 
	 	 (2)	 	$10,000.
	 
	 	 (3)	 	Any outstanding loan balance on the date the new loan is made.




For purposes of this maximum, a Participant’s Vested Account does not include any accumulated
deductible employee contributions, as defined in Code Section 72(o)(5)(B), and all qualified
employer plans, as defined in Code Section 72(p)(4), of the Employer and any Controlled Group
member shall be treated as one plan.




     The foregoing notwithstanding, the amount of such loan shall not exceed 50 percent of the
amount of the Participant’s Vested Account. For purposes of this maximum, a Participant’s Vested
Account does not include any accumulated deductible employee contributions, as defined in Code
Section 72(o)(5)(B). No collateral other than a portion of the Participant’s Vested Account (as
limited above) shall be accepted. The Loan Administrator shall determine if the collateral is
adequate for the amount of the loan requested.



 









 





     A Participant must obtain the consent of his spouse, if any, to the use of the Vested Account
as security for the loan. Spousal consent shall be obtained no earlier than the beginning of the
90-day period that ends on the date on which the loan to be so secured is made. The consent must
be in writing, must acknowledge the effect of the loan, and must be witnessed by a plan
representative or a notary public. Such consent shall thereafter be binding with respect to the
consenting spouse or any subsequent spouse with respect to that loan. A new consent shall be
required if the Vested Account is used for collateral upon renegotiation, extension, renewal, or
other revision of the loan. No consent shall be required if subparagraph
(d) of the ELECTION PROCEDURES SECTION of Article VI applies.




     If a valid spousal consent has been obtained in accordance with the above, or spousal consent
is not required, then, notwithstanding any other provision of this Plan, the portion of the
Participant’s Vested Account used as a security interest held by the Plan by reason of a loan
outstanding to the Participant shall be taken into account for purposes of determining the amount
of the Vested Account payable at the time of the death or distribution, but only if the reduction
is used as repayment of the loan. If spousal consent is required and less than 100 percent of the
Participant’s Vested Account (determined without regard to the preceding sentence) is payable to
the surviving spouse, then the Vested Account shall be adjusted by first reducing the Vested
Account by the amount of the security used as repayment of the loan, and then determining the
benefit payable to the surviving spouse.



     Each loan shall bear a reasonable fixed rate of interest to be determined by the Loan
Administrator. In determining the interest rate, the Loan Administrator shall take into
consideration fixed interest rates currently being charged by commercial lenders for loans of
comparable risk on similar terms and for similar durations, so that the interest will provide for a
return commensurate with rates currently charged by commercial lenders for loans made under similar
circumstances. The Loan Administrator shall not discriminate among Participants in the matter of
interest rates; but loans granted at different times may bear different interest rates in
accordance with the current appropriate standards.



     The loan shall by its terms require that repayment (principal and interest) be amortized in
level payments, not less frequently than quarterly, over a period not extending beyond five years
from the date of the loan. The period of repayment for any loan shall be arrived at by mutual
agreement between the Loan Administrator and the Participant.



     The Participant shall make an application for a loan in such manner and in accordance with
such rules as the Employer shall prescribe for this purpose (including by means of voice response
or other electronic means under circumstances the Employer permits). The application must specify
the amount and duration requested.



     Information contained in the application for the loan concerning the income, liabilities, and
assets of the Participant will be evaluated to determine whether there is a reasonable expectation
that the Participant will be able to satisfy payments on the loan as due. Additionally, the Loan
Administrator will pursue any appropriate further investigations concerning the creditworthiness
and credit history of the Participant to determine whether a loan should be approved.



     Each loan shall be fully documented in the form of a promissory note signed by the Participant
for the face amount of the loan, together with interest determined as specified above.



     There will be an assignment of collateral to the Plan executed at the time the loan is made.



     In those cases where repayment through payroll deduction is available, installments are so
payable, and a payroll deduction agreement shall be executed by the Participant at the time the
loan is made. Loan repayments that are accumulated through payroll deduction shall be paid to the
Trustee by the earlier of (i) the date the loan repayments can reasonably be segregated from the
Employer’s assets, or (ii) the 15th business day of the month following the month in which such
amounts would otherwise have been paid in cash to the Participant.



     Where payroll deduction is not available, payments in cash are to be timely made. Any payment
that is not by payroll deduction shall be made payable to the Employer or the Trustee, as specified
in the promissory note, and delivered to the Loan Administrator, including prepayments, service
fees and penalties, if any, and other amounts due



 









 







under the note. The Loan Administrator shall deposit such amounts into the Plan as soon as
administratively practicable after they are received, but in no event later than the 15th business
day of the month after they are received.



     The promissory note may provide for reasonable late payment penalties and service fees. Any
penalties or service fees shall be applied to all Participants in a nondiscriminatory manner. If
the promissory note so provides, such amounts may be assessed and collected from the Account of the
Participant as part of the loan balance.



     Each loan may be paid prior to maturity, in part or in full, without penalty or service fee,
except as may be set out in the promissory note.



     The Plan shall suspend loan payments for a period not exceeding one year during which an
approved unpaid leave of absence occurs other than a military leave of absence. The Loan
Administrator shall provide the Participant a written explanation of the effect of the suspension
of payments upon his loan.



     If a Participant separates from service (or takes a leave of absence) from the Employer
because of service in the military and does not receive a distribution of his Vested Account, the
Plan shall suspend loan payments until the Participant’s completion of military service or until
the Participant’s fifth anniversary of commencement of military service, if earlier, as permitted
under Code Section 414(u). The Loan Administrator shall provide the Participant a written
explanation of the effect of his military service upon his loan.



     If any payment of principal and interest, or any portion thereof, remains unpaid for more than
90 days after due, the loan shall be in default. For purposes of Code Section 72(p), the
Participant shall then be treated as having received a deemed distribution regardless of whether or
not a distributable event has occurred.



     Upon default, the Plan has the right to pursue any remedy available by law to satisfy the
amount due, along with accrued interest, including the right to enforce its claim against the
security pledged and execute upon the collateral as allowed by law. The entire principal balance
whether or not otherwise then due, along with accrued interest, shall become immediately due and
payable without demand or notice, and subject to collection or satisfaction by any lawful means,
including specifically, but not limited to, the right to enforce the claim against the security
pledged and to execute upon the collateral as allowed by law.



     In the event of default, foreclosure on the note and attachment of security or use of amounts
pledged to satisfy the amount then due shall not occur until a distributable event occurs in
accordance with the Plan, and shall not occur to an extent greater than the amount then available
upon any distributable event which has occurred under the Plan.



     All reasonable costs and expenses, including but not limited to attorney’s fees, incurred by
the Plan in connection with any default or in any proceeding to enforce any provision of a
promissory note or instrument by which a promissory note for a Participant loan is secured, shall
be assessed and collected from the Account of the Participant as part of the loan balance.



     If payroll deduction is being utilized, in the event that a Participant’s available payroll
deduction amounts in any given month are insufficient to satisfy the total amount due, there will
be an increase in the amount taken subsequently, sufficient to make up the amount that is then due.
If any amount remains past due more than 90 days, the entire principal amount, whether or not
otherwise then due, along with interest then accrued, shall become due and payable, as above.



     If no distributable event has occurred under the Plan at the time that the Participant’s
Vested Account would otherwise be used under this provision to pay any amount due under the
outstanding loan, this will not occur until the time, or in excess of the extent to which, a
distributable event occurs under the Plan. An outstanding loan will become due and payable in full
60 days after a Participant ceases to be an Employee and a party-in-interest as defined in ERISA or
after complete termination of the Plan.



SECTION 5.07—DISTRIBUTIONS UNDER QUALIFIED DOMESTIC RELATIONS ORDERS.




 









 





     The Plan specifically permits distributions to an Alternate Payee under a qualified domestic
relations order as defined in Code Section 414(p), at any time, irrespective of whether the
Participant has attained his earliest retirement age, as defined in Code Section 414(p), under the
Plan. A distribution to an Alternate Payee before the Participant has attained his earliest
retirement age is available only if the order specifies that distribution shall be made prior to
the earliest retirement age or allows the Alternate Payee to elect a distribution prior to the
earliest retirement age.



     Nothing in this section shall permit a Participant to receive a distribution at a time
otherwise not permitted under the Plan nor shall it permit the Alternate Payee to receive a form of
payment not permitted under the Plan.



     The benefit payable to an Alternate Payee shall be subject to the provisions of the SMALL
AMOUNTS SECTION of Article X if the value of the benefit does not exceed $5,000.



     The Plan Administrator shall establish reasonable procedures to determine the qualified status
of a domestic relations order. Upon receiving a domestic relations order, the Plan Administrator
shall promptly notify the Participant and the Alternate Payee named in the order, in writing, of
the receipt of the order and the Plan’s procedures for determining the qualified status of the
order. Within a reasonable period of time after receiving the domestic relations order, the Plan
Administrator shall determine the qualified status of the order and shall notify the Participant
and each Alternate Payee, in writing, of its determination. The Plan Administrator shall provide
notice under this paragraph by mailing to the individual’s address specified in the domestic
relations order, or in a manner consistent with Department of Labor regulations. The Plan
Administrator may treat as qualified any domestic relations order entered into before January 1,
1985, irrespective of whether it satisfies all the requirements described in Code Section 414(p).



     If any portion of the Participant’s Vested Account is payable during the period the Plan
Administrator is making its determination of the qualified status of the domestic relations order,
a separate accounting shall be made of the amount payable. If the Plan Administrator determines
the order is a qualified domestic relations order within 18 months of the date amounts are first
payable following receipt of the order, the payable amounts shall be distributed in accordance with
the order. If the Plan Administrator does not make its determination of the qualified status of
the order within the 18-month determination period, the payable amounts shall be distributed in the
manner the Plan would distribute if the order did not exist and the order shall apply prospectively
if the Plan Administrator later determines the order is a qualified domestic relations order.



     The Plan shall make payments or distributions required under this section by separate benefit
checks or other separate distribution to the Alternate Payee(s).



ARTICLE VI




DISTRIBUTION OF BENEFITS




SECTION 6.01—AUTOMATIC FORMS OF DISTRIBUTION.




     Unless an optional form of benefit is selected pursuant to a qualified election within the
election period (see the ELECTION PROCEDURES SECTION of this article), the automatic form of
benefit payable to or on behalf of a Participant is determined as follows:



     (a) Retirement Benefits. The automatic form of retirement benefit for a Participant
who does not die before his Annuity Starting Date shall be:



     (1) The Qualified Joint and Survivor Annuity for a Participant who has a spouse.



     (2) The Normal Form for a Participant who does not have a spouse.



     (b) Death Benefits. The automatic form of death benefit for a Participant who dies
before his Annuity Starting Date shall be:



     (1) A Qualified Preretirement Survivor Annuity for a Participant who has a spouse to whom he
has been continuously married throughout the one-year period ending on the date of his death. The
spouse may elect to start receiving the death benefit on any first day of the month on or after the
Participant dies and by the date the Participant would have been age 70 1/2. If the spouse dies
before benefits start, the Participant’s Vested Account, determined as of the date of the spouse’s
death, shall be paid to the spouse’s Beneficiary.



     (2) A single-sum payment to the Participant’s Beneficiary for a Participant who does not have
a spouse who



 









 







is entitled to a Qualified Preretirement Survivor Annuity.




Before a death benefit will be paid on account of the death of a Participant who does
not have a spouse who is entitled to a Qualified Preretirement Survivor Annuity, it must
be established to the satisfaction of a plan representative that the Participant does
not have such a spouse.



SECTION 6.02—OPTIONAL FORMS OF DISTRIBUTION.





	 	(a)	 	Retirement Benefits. The optional forms of retirement benefit shall be
the following: (i) a straight life annuity; (ii) single life annuities with certain
periods of 5, 10 or 15 years; (iii) a single life annuity with installment refund; (iv)
survivorship life annuities with installment refund and survivorship percentages of 50%,
66 2/3% or 100%; (v) fixed period annuities for any period of whole months which is not
less than 60 and does not exceed the Life Expectancy, as defined in Article VII, of the
Participant where the Life Expectancy is not recalculated; and (vi) a full flexibility
option. A single sum payment is also available. That portion of a Participant’s
Account which is held in the Qualifying Employer Securities Fund may be distributed in
kind.
	 
	 	 	 	The full flexibility option is an optional form of benefit under which the Participant
receives a distribution each calendar year, beginning with the calendar year in which
his Annuity Starting Date occurs. The Participant may elect the amount to be
distributed each year (not less than $1,000). The amount payable in his first
Distribution Calendar Year, as defined in Article VII, must satisfy the minimum
distribution requirements of Article VII for such year. Distributions for later
Distribution Calendar Years, as defined in Article VII, must satisfy the minimum
distribution requirements of Article VII for such years. If the Participant’s Annuity
Starting Date does not occur until his second Distribution Calendar Year, as defined in
Article VII, the amount payable for such year must satisfy the minimum distribution
requirements of Article VII for both the first and second Distribution Calendar Years,
as defined in Article VII.
	 
	 	 	 	If the Plan is amended to eliminate or restrict an optional form of distribution and the
Plan provides a single sum distribution form that is otherwise identical to the optional
form of distribution eliminated or restricted, the amendment shall not apply to any
distribution with an Annuity Starting Date earlier than the first day of the second Plan
Year following the Plan Year in which the amendment is adopted.
	 
	 	 	 	Election of an optional form is subject to the qualified election provisions of the
ELECTION PROCEDURES SECTION of this article and the distribution requirements of Article
VII.
	 
	 	 	 	Any annuity contract distributed shall be nontransferable. The terms of any annuity
contract purchased and distributed by the Plan to a Participant or spouse shall comply
with the requirements of this Plan.
	 
	 	(b)	 	Death Benefits. The optional forms of death benefit are a single-sum
payment and any annuity that is an optional form of retirement benefit. However, the
full flexibility option shall not be available if the Beneficiary is not the spouse of
the deceased Participant.
	 
	 	 	 	Election of an optional form is subject to the qualified election provisions of the
ELECTION PROCEDURES SECTION of this article and the distribution requirements of Article
VII.





SECTION 6.03—ELECTION PROCEDURES.




     The Participant, Beneficiary, or spouse shall make any election under this section in writing.
The Plan Administrator may require such individual to complete and sign any necessary documents as
to the provisions to be made. Any election permitted under (a) and (b) below shall be subject to
the qualified election provisions of (c) below.



     (a) Retirement Benefits. A Participant may elect his Beneficiary or Contingent
Annuitant and may elect to have retirement benefits distributed under any of the optional forms of
retirement benefit available in the OPTIONAL FORMS OF DISTRIBUTION SECTION of this article.



     (b) Death Benefits. A Participant may elect his Beneficiary and may elect to have
death benefits distributed



 









 







under any of the optional forms of death benefit available in the OPTIONAL FORMS OF DISTRIBUTION
SECTION of this article.




If the Participant has not elected an optional form of distribution for the death
benefit payable to his Beneficiary, the Beneficiary may, for his own benefit, elect the
form of distribution, in like manner as a Participant.




The Participant may waive the Qualified Preretirement Survivor Annuity by naming someone other
than his spouse as Beneficiary.




In lieu of the Qualified Preretirement Survivor Annuity described in the AUTOMATIC FORMS OF
DISTRIBUTION SECTION of this article, the spouse may, for his own benefit, waive the Qualified
Preretirement Survivor Annuity by electing to have the benefit distributed under any of the
optional forms of death benefit available in the OPTIONAL FORMS OF DISTRIBUTION SECTION of
this article.




	(c)	 	Qualified Election. The Participant, Beneficiary or spouse may make an election at
any time during the election period. The Participant, Beneficiary, or spouse may revoke the
election made (or make a new election) at any time and any number of times during the election
period. An election is effective only if it meets the consent requirements below.





     (1) Election Period for Retirement Benefits. The election period as to retirement
benefits is the 90-day period ending on the Annuity Starting Date. An election to waive the
Qualified Joint and Survivor Annuity may not be made before the date the Participant is provided
with the notice of the ability to waive the Qualified Joint and Survivor Annuity. If the
Participant elects a full flexibility option, he may revoke his election at any time before his
first Distribution Calendar Year, as defined in Article VII. When he elects to have benefits begin
again, he shall have a new Annuity Starting Date. His election period for this election is the
90-day period ending on the Annuity Starting Date for the optional form of retirement benefit
elected.



     (2) Election Period for Death Benefits. A Participant may make an election as to death
benefits at any time before he dies. The spouse’s election period begins on the date the
Participant dies and ends on the date benefits begin. The Beneficiary’s election period begins on
the date the Participant dies and ends on the date benefits begin.



     An election to waive the Qualified Preretirement Survivor Annuity may not be made by the
Participant before the date he is provided with the notice of the ability to waive the Qualified
Preretirement Survivor Annuity. A Participant’s election to waive the Qualified Preretirement
Survivor Annuity which is made before the first day of the Plan Year in which he reaches age 35
shall become invalid on such date. An election made by a Participant after he ceases to be an
Employee will not become invalid on the first day of the Plan Year in which he reaches age 35 with
respect to death benefits from that part of his Account resulting from Contributions made before he
ceased to be an Employee.



     (3) Consent to Election. If the Participant’s Vested Account exceeds $5,000, any
benefit which is (i) immediately distributable or (ii) payable in a form other than a Qualified
Joint and Survivor Annuity or a Qualified Preretirement Survivor Annuity, requires the consent of
the Participant and the Participant’s spouse (or where either the Participant or the spouse has
died, the survivor). Such consent shall also be required if the Participant had previously had an
Annuity Starting Date with respect to any portion of such Vested Account.


The consent of the Participant or spouse to a benefit which is immediately distributable must not
be made before the date the Participant or spouse is provided with the notice of the ability to
defer the distribution. Such consent shall be made in writing.



The consent shall not be made more than 90 days before the Annuity Starting Date. Spousal consent
is not required for a benefit which is immediately distributable in a Qualified Joint and Survivor
Annuity. Furthermore, if spousal consent is not required because the Participant is electing an
optional form of retirement benefit that is not a life annuity pursuant to (d) below, only the
Participant need consent to the distribution of a benefit payable in a form that is not a life
annuity and which is immediately distributable. Neither the consent of the Participant nor the
Participant’s spouse shall be required to the extent that a distribution is required to satisfy
Code Section 401(a)(9) or Code Section 415.



In addition, upon termination of this Plan, if the Plan does not offer an annuity option (purchased
from a commercial provider), and if the Employer (or any entity within the same Controlled Group)
does not maintain another defined contribution plan (other than an employee stock ownership plan as
defined in Code Section 4975(e)(7)), the Participant’s Account balance will, without the
Participant’s consent, be distributed to the Participant. However, if any


 









 






entity within the same Controlled Group maintains another defined contribution plan (other than an
employee stock ownership plan as defined in Code Section 4975(e)(7)) then the Participant’s Account
will be transferred, without the Participant’s consent, to the other plan if the Participant does
not consent to an immediate distribution.



A benefit is immediately distributable if any part of the benefit could be distributed to the
Participant (or surviving spouse) before the Participant attains (or would have attained if not
deceased) the older of Normal Retirement Age or age 62.



If the Qualified Joint and Survivor Annuity is waived, the spouse has the right to limit consent
only to a specific Beneficiary or a specific form of benefit. The spouse can relinquish one or
both such rights. Such consent shall be made in writing. The consent shall not be made more than
90 days before the Annuity Starting Date. If the Qualified Preretirement Survivor Annuity is
waived, the spouse has the right to limit consent only to a specific Beneficiary. Such consent
shall be in writing. The spouse’s consent shall be witnessed by a plan representative or notary
public. The spouse’s consent must acknowledge the effect of the election, including that the
spouse had the right to limit consent only to a specific Beneficiary or a specific form of benefit,
if applicable, and that the relinquishment of one or both such rights was voluntary. Unless the
consent of the spouse expressly permits designations by the Participant without a requirement of
further consent by the spouse, the spouse’s consent must be limited to the form of benefit, if
applicable, and the Beneficiary (including any Contingent Annuitant), class of Beneficiaries, or
contingent Beneficiary named in the election.



Spousal consent is not required, however, if the Participant establishes to the satisfaction of the
plan representative that the consent of the spouse cannot be obtained because there is no spouse or
the spouse cannot be located. A spouse’s consent under this paragraph shall not be valid with
respect to any other spouse. A Participant may revoke a prior election without the consent of the
spouse. Any new election will require a new spousal consent, unless the consent of the spouse
expressly permits such election by the Participant without further consent by the spouse. A
spouse’s consent may be revoked at any time within the Participant’s election period.





	 	(d)	 	Special Rule for Profit Sharing Plans. This subparagraph (d) applies if
the Plan is not a direct or indirect transferee after December 31, 1984, of a defined
benefit plan, money purchase plan, target benefit plan, stock bonus plan, or profit
sharing plan which is subject to the survivor annuity requirements of Code Sections
401(a)(11) and 417. If the above condition is met, spousal consent is not required for
electing an optional form of retirement benefit that is not a life annuity. If such
condition is not met, such consent requirements shall be operative.





SECTION 6.04—NOTICE REQUIREMENTS.





	 	(a)	 	Optional Forms of Retirement Benefit and Right to Defer. The Plan
Administrator shall furnish to the Participant and the Participant’s spouse a written
explanation of the optional forms of retirement benefit in the OPTIONAL FORMS OF
DISTRIBUTION SECTION of this article, including the material features and relative values
of these options, in a manner that would satisfy the notice requirements of Code Section
417(a)(3) and the right of the Participant and the Participant’s spouse to defer
distribution until the benefit is no longer immediately distributable.
	 
	 	 	 	The Plan Administrator shall furnish the written explanation by a method reasonably
calculated to reach the attention of the Participant and the Participant’s spouse no
less than 30 days, and no more than 90 days, before the Annuity Starting Date.
	 
	 	 	 	The Participant (and spouse, if applicable) may waive the 30-day election period if the
distribution of the elected form of retirement benefit begins more than 7 days after the
Plan Administrator provides the Participant (and spouse, if applicable) the written
explanation provided that: (i) the Participant has been provided with information that
clearly indicates that the Participant has at least 30 days to consider the decision of
whether or not to elect a distribution and a particular distribution option, (ii) the
Participant is permitted to revoke any affirmative distribution election at least until
the Annuity Starting Date or, if later, at any time prior to the expiration of the 7-day
period that begins the day after the explanation is provided to the Participant, and
(iii) the Annuity Starting Date is a date after the date that the written explanation
was provided to the Participant.




 









 








	 	(b)	 	Qualified Joint and Survivor Annuity. The Plan Administrator shall furnish
to the Participant a written explanation of the following: the terms and conditions of
the Qualified Joint and Survivor Annuity; the Participant’s right to make, and the effect
of, an election to waive the Qualified Joint and Survivor Annuity; the rights of the
Participant’s spouse; and the right to revoke an election and the effect of such a
revocation.
	 
	 	 	 	The Plan Administrator shall furnish the written explanation by a method reasonably
calculated to reach the attention of the Participant no less than 30 days, and no more
than 90 days, before the Annuity Starting Date.
	 
	 	 	 	The Participant (and spouse, if applicable) may waive the 30-day election period if the
distribution of the elected form of retirement benefit begins more than 7 days after the
Plan Administrator provides the Participant (and spouse, if applicable) the written
explanation provided that: (i) the Participant has been provided with information that
clearly indicates that the Participant has at least 30 days to consider whether to waive
the Qualified Joint and Survivor Annuity and elect (with spousal consent, if applicable)
a form of distribution other than a Qualified Joint and Survivor Annuity, (ii) the
Participant is permitted to revoke any affirmative distribution election at least until
the Annuity Starting Date or, if later, at any time prior to the expiration of the 7-day
period that begins the day after the explanation of the Qualified Joint and Survivor
Annuity is provided to the Participant, and (iii) the Annuity Starting Date is a date
after the date that the written explanation was provided to the Participant.






After the written explanation is given, a Participant or spouse may make a written request for
additional information. The written explanation must be personally delivered or mailed (first
class mail, postage prepaid) to the Participant or spouse within 30 days from the date of the
written request. The Plan Administrator does not need to comply with more than one such
request by a Participant or spouse.




The Plan Administrator’s explanation shall be written in nontechnical language and will
explain the terms and conditions of the Qualified Joint and Survivor Annuity and the financial
effect upon the Participant’s benefit (in terms of dollars per benefit payment) of electing
not to have benefits distributed in accordance with the Qualified Joint and Survivor Annuity.




	(c)	 	Qualified Preretirement Survivor Annuity. The Plan Administrator shall furnish to the
Participant a written explanation of the following: the terms and conditions of the Qualified
Preretirement Survivor Annuity; the Participant’s right to make, and the effect of, an
election to waive the Qualified Preretirement Survivor Annuity; the rights of the
Participant’s spouse; and the right to revoke an election and the effect of such a revocation.
	 
	 	 	The Plan Administrator shall furnish the written explanation by a method reasonably calculated
to reach the attention of the Participant within the applicable period. The applicable period
for a Participant is whichever of the following periods ends last:





          (1) the period beginning one year before the date the individual becomes a Participant and
ending one year after such date; or



          (2) the period beginning one year before the date the Participant’s spouse is first entitled
to a Qualified Preretirement Survivor Annuity and ending one year after such date.




If such notice is given before the period beginning with the first day of the Plan Year in
which the Participant attains age 32 and ending with the close of the Plan Year preceding the
Plan Year in which the Participant attains age 35, an additional notice shall be given within
such period. If a Participant ceases to be an Employee before attaining age 35, an additional
notice shall be given within the period beginning one year before the date he ceases to be an
Employee and ending one year after such date.




After the written explanation is given, a Participant or spouse may make a written request for
additional




 










 






information. The written explanation must be personally delivered or mailed (first class
mail, postage prepaid) to the Participant or spouse within 30 days from the date of the
written request. The Plan Administrator does not need to comply with more than one such
request by a Participant or spouse.



The Plan Administrator’s explanation shall be written in nontechnical language and will
explain the terms and conditions of the Qualified Preretirement Survivor Annuity and the
financial effect upon the spouse’s benefit (in terms of dollars per benefit payment) of
electing not to have benefits distributed in accordance with the Qualified Preretirement
Survivor Annuity.



ARTICLE VII




DISTRIBUTION REQUIREMENTS




SECTION 7.01—APPLICATION.




     The optional forms of distribution are only those provided in Article VI. An optional form of
distribution shall not be permitted unless it meets the requirements of this article. The timing of any
distribution must meet the requirements of this article.



SECTION 7.02—DEFINITIONS.




     For purposes of this article, the following terms are defined:




Applicable Life Expectancy means Life Expectancy (or Joint and Last Survivor Expectancy)
calculated using the attained age of the Participant (or Designated Beneficiary) as of the
Participant’s (or Designated Beneficiary’s) birthday in the applicable calendar year reduced
by one for each calendar year which has elapsed since the date Life Expectancy was first
calculated. If Life Expectancy is being recalculated, the Applicable Life Expectancy shall be
the Life Expectancy so recalculated. The applicable calendar year shall be the first
Distribution Calendar Year, and if Life Expectancy is being recalculated, such succeeding
calendar year.




Designated Beneficiary means the individual who is designated as the beneficiary under the
Plan in accordance with Code Section 401(a)(9) and the regulations thereunder.




Distribution Calendar Year means a calendar year for which a minimum distribution is required.
For distributions beginning before the Participant’s death, the first Distribution Calendar
Year is the calendar year immediately preceding the calendar year which contains the
Participant’s Required Beginning Date. For distributions beginning after the Participant’s
death, the first Distribution Calendar Year is the calendar year in which distributions are
required to begin pursuant to (e) of the DISTRIBUTION REQUIREMENTS SECTION of this article.




5-percent Owner means a 5-percent owner as defined in Code Section 416. A Participant is
treated as a 5-percent Owner for purposes of this article if such Participant is a 5-percent
Owner at any time during the Plan Year ending with or within the calendar year in which such
owner attains age 70 1/2.




In addition, a Participant is treated as a 5-percent Owner for purposes of this article if
such Participant becomes a 5-percent Owner in a later Plan Year. Such Participant’s Required
Beginning Date shall not be later than the April 1 of the calendar year following the calendar
year in which such later Plan Year ends.




Once distributions have begun to a 5-percent Owner under this article, they must continue to
be distributed, even if the Participant ceases to be a 5-percent Owner in a subsequent year.




Joint and Last Survivor Expectancy means joint and last survivor expectancy computed using the
expected return multiples in Table VI of section 1.72-9 of the Income Tax Regulations.



Unless otherwise elected by the Participant by the time distributions are required to begin, life
expectancies shall be recalculated annually. Such election shall be irrevocable as to the
Participant and shall apply to all subsequent years. The life expectancy of a nonspouse
Beneficiary may not be recalculated.




 









 







Life Expectancy means life expectancy computed using the expected return multiples in Table V of
section 1.72-9 of the Income Tax Regulations.



Unless otherwise elected by the Participant (or spouse, in the case of distributions described in
(e)(2)(ii) of the DISTRIBUTION REQUIREMENTS SECTION of this article) by the time distributions are
required to begin, life expectancy shall be recalculated annually. Such election shall be
irrevocable as to the Participant (or spouse) and shall apply to all subsequent years. The life
expectancy of a nonspouse Beneficiary may not be recalculated.



Participant’s Benefit means:




     (a) The Account balance as of the last Valuation Date in the calendar year immediately
preceding the Distribution Calendar Year (valuation calendar year) increased by the amount of any
contributions or forfeitures allocated to the Account balance as of the dates in the valuation
calendar year after the Valuation Date and decreased by distributions made in the valuation
calendar year after the Valuation Date.



     (b) Exception for Second Distribution Calendar Year. For purposes of (a) above, if any
portion of the minimum distribution for the first Distribution Calendar Year is made in the second
Distribution Calendar Year on or before the Required Beginning Date, the amount of the minimum
distribution made in the second Distribution Calendar Year shall be treated as if it had been made
in the immediately preceding Distribution Calendar Year.


Required Beginning Date means, for a Participant who is a 5-percent Owner, the April 1 of the
calendar year following the calendar year in which he attains age 70 1/2.



Required Beginning Date means, for any Participant who is not a 5-percent Owner, the April 1 of the
calendar year following the later of the calendar year in which he attains age 70 1/2 or the
calendar year in which he retires.



The preretirement age 70 1/2 distribution option is only eliminated with respect to Participants
who reach age 70 1/2 in or after a calendar year that begins after the later of December 31, 1998,
or the adoption date of the amendment which eliminated such option. The preretirement age 70 1/2
distribution is an optional form of benefit under which benefits payable in a particular
distribution form (including any modifications that may be elected after benefits begin) begin at a
time during the period that begins on or after January 1 of the calendar year in which the
Participant attains age 70 1/2 and ends April 1 of the immediately following calendar year.



The options available for Participants who are not 5-percent Owners and attained age 70 1/2 in
calendar years before the calendar year that begins after the later of December 31, 1998, or the
adoption date of the amendment which eliminated the preretirement age 70 1/2 distribution shall be
the following. Any such Participant attaining age 70 1/2 in years after 1995 may elect by April 1
of the calendar year following the calendar year in which he attained age 70 1/2 (or by December
31, 1997 in the case of a Participant attaining age 70 1/2 in 1996) to defer distributions until
the calendar year following the calendar year in which he retires. Any such Participant attaining
age 70 1/2 in years prior to 1997 may elect to stop distributions which are not purchased annuities
and recommence by the April 1 of the calendar year following the year in which he retires. There
shall be a new Annuity Starting Date upon recommencement.




SECTION 7.03—DISTRIBUTION REQUIREMENTS.




     (a) General Rules.



     (1) Subject to the AUTOMATIC FORMS OF DISTRIBUTION SECTION of Article VI, joint and survivor
annuity requirements, the requirements of this article shall apply to any distribution of a
Participant’s interest and shall take precedence over any inconsistent provisions of this Plan.
Unless otherwise specified, the provisions of this article apply to calendar years beginning after
December 31, 1984.



     (2) All distributions required under this article shall be determined and made in accordance
with the proposed regulations under Code Section 401(a)(9), including the minimum distribution
incidental benefit requirement of section 1.401(a)(9)-2 of the proposed regulations.



     (3) With respect to distributions under the Plan made on or after June 14, 2001, for calendar
years beginning on or after January 1, 2001, the Plan will apply the minimum distribution
requirements of Code Section 401(a)(9) in accordance with the regulations under Code Section
401(a)(9) that were proposed on January 17, 2001 (the 2001 Proposed Regulations), notwithstanding
any provision of the Plan to the contrary. If the total amount of required minimum distributions
made to a Participant for 2001 prior to June 14, 2001, are equal to or greater than the



 









 







amount of required minimum distributions determined under the 2001 Proposed Regulations, then no
additional distributions are required for such Participant for 2001 on or after such date. If the
total amount of required minimum distributions made to a Participant for 2001 prior to June 14,
2001, are less than the amount determined under the 2001 Proposed Regulations, then the amount of
required minimum distributions for 2001 on or after such date will be determined so that the total
amount of required minimum distributions for 2001 is the amount determined under the 2001 Proposed
Regulations. These provisions shall continue in effect until the last calendar year beginning
before the effective date of final regulations under Code
Section 401 (a)(9) or such other date as may be published by the Internal Revenue Service.



     

(b) Required Beginning Date. The entire interest of a Participant must be distributed
or begin to be distributed no later than the Participant’s Required Beginning Date.



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



     (1) the life of the Participant,



     (2) the life of the Participant and a Designated Beneficiary,



     (3) a period certain not extending beyond the Life Expectancy of the Participant, or



     (4) a period certain not extending beyond the Joint and Last Survivor Expectancy of the
Participant and a Designated Beneficiary.



     (d) Determination of Amount to be Distributed Each Year. If the Participant’s interest
is to be distributed in other than a single sum, the following minimum distribution rules shall
apply on or after the Required Beginning Date:




	(1)	 	Individual Account.






	 	(i)	 	If a Participant’s Benefit is to be distributed over






	 	A.	 	a period not extending beyond the Life Expectancy of the
Participant or the Joint Life and Last Survivor Expectancy of the Participant
and the Participant’s Designated Beneficiary, or
	 
	 	B.	 	a period not extending beyond the Life Expectancy of the
Designated Beneficiary,






the amount required to be distributed for each calendar year beginning with the
distributions for the first Distribution Calendar Year, must be at least equal to
the quotient obtained by dividing the Participant’s Benefit by the Applicable Life
Expectancy.




	 	(ii)	 	For calendar years beginning before January 1, 1989, if the
Participant’s spouse is not the Designated Beneficiary, the method of distribution
selected must assure that at least 50 percent of the present value of the amount
available for distribution is paid within the Life Expectancy of the Participant.
	 
	 	(iii)	 	For calendar years beginning after December 31, 1988, the amount to be
distributed each year, beginning with distributions for the first Distribution
Calendar Year shall not be less than the quotient obtained by dividing the
Participant’s Benefit by the lesser of:






	 	A.	 	the Applicable Life Expectancy, or
	 
	 	B.	 	if the Participant’s spouse is not the Designated
Beneficiary, the applicable divisor determined from the table set forth in
Q&A-4 of section 1.401(a)(9)-2 of the proposed regulations.






Distributions after the death of the Participant shall be distributed using the
Applicable Life Expectancy in (1)(i) above as the relevant divisor without regard
to section 1.401(a)(9)-2 of the proposed regulations.




	 	(iv)	 	The minimum distribution required for the Participant’s first
Distribution Calendar Year must be made on or before the Participant’s Required
Beginning Date. The minimum distribution for other calendar years, including the
minimum distribution for the Distribution Calendar Year in which the




 









 







	 	 	 	Participant’s Required Beginning Date occurs, must be made on or before December 31
of that Distribution Calendar Year.






	 	(2)	 	Other Forms. If the Participant’s Benefit is distributed in the form of an
annuity purchased from an insurance company, distributions thereunder shall be made in
accordance with the requirements of Code Section 401(a)(9) and the proposed regulations
thereunder.






	(e)	 	Death Distribution Provisions. 





     (1) Distribution Beginning Before Death. If the Participant dies after distribution of
his interest has begun, the remaining portion of such interest will continue to be distributed at
least as rapidly as under the method of distribution being used prior to the Participant’s death.



     (2) Distribution Beginning After Death.



     (i) If the Participant dies before distribution of his interest begins, distribution of the
Participant’s entire interest shall be completed by December 31 of the calendar year containing the
fifth anniversary of the Participant’s death except to the extent that an election is made to
receive distributions in accordance with A or B below:



     A. if any portion of the Participant’s interest is payable to a Designated Beneficiary,
distributions may be made over the life or over a period certain not greater than the Life
Expectancy of the Designated Beneficiary beginning on or before December 31 of the calendar year
immediately following the calendar year in which the Participant died;



     B. if the Designated Beneficiary is the Participant’s surviving spouse, the date distributions
are required to begin in accordance with A above shall not be earlier
than the later of:





	 	1.	 	December 31 of the calendar year immediately following the calendar year in which the Participant
died, or
	 
	 	2.	 	December 31 of the calendar year in which the
Participant would have attained age 70 1/2.











     (ii) If the Participant has not made an election pursuant to this (e)(2) by the time of his
death, the Participant’s Designated Beneficiary must elect the method of distribution no later than
the earlier of:



     A. December 31 of the calendar year in which distributions would be required to begin under
this subparagraph, or



     B. December 31 of the calendar year which contains the fifth anniversary of the date of death
of the Participant.



     (iii) If the Participant has no Designated Beneficiary, or if the Designated Beneficiary does
not elect a method of distribution, distribution of the Participant’s entire interest must be
completed by December 31 of the calendar year containing the fifth anniversary of the Participant’s
death.



     (3) For purposes of (e)(2) above, if the surviving spouse dies after the Participant, but
before payments to such spouse begin, the provisions of (e)(2) above, with the exception of
(e)(2)(i)(B) therein, shall be applied as if the surviving spouse were the Participant.



     (4) For purposes of this (e), distribution of a Participant’s interest is considered to begin
on the Participant’s Required Beginning Date (or if (e)(3) above is applicable, the date
distribution is required to begin to the surviving spouse pursuant to (e)(2) above). If
distribution in the form of an annuity irrevocably begins to the Participant before the Required
Beginning Date, the date distribution is considered to begin is the date distribution actually
begins.



ARTICLE VIII




TERMINATION OF THE PLAN




     The Employer expects to continue the Plan indefinitely but reserves the right to terminate the
Plan in whole or in part at any time upon giving written notice to all parties concerned. Complete
discontinuance of Contributions constitutes complete termination of the Plan.



     The Account of each Participant shall be fully (100%) vested and nonforfeitable as of the
effective date of complete termination of the Plan. The Account of each Participant who is
included in the group of Participants deemed to be affected by the partial termination of the Plan
shall be fully (100%) vested and nonforfeitable as of the effective date of the partial termination
of the Plan. The Participant’s Account shall continue to participate in the earnings credited,
expenses charged, and any appreciation or depreciation of the Investment Fund until his Vested
Account is distributed.



     A Participant’s Account which does not result from the Contributions listed below may be
distributed to the



 









 







Participant after the effective date of the complete termination of the Plan:



     Elective Deferral Contributions


     Qualified Matching Contributions



A Participant’s Account resulting from such Contributions may be distributed upon complete
termination of the Plan, but only if neither the Employer nor any Controlled Group member maintain
or establish a successor defined contribution plan (other than an employer stock ownership plan as
defined in Code Section 4975(e)(7), a simplified employee pension plan as defined in Code Section
408(k) or a SIMPLE IRA plan as defined in Code Section 408(p)) and such distribution is made in a
lump sum. A distribution under this article shall be a retirement benefit and shall be distributed
to the Participant according to the provisions of Article VI.




     The Participant’s entire Vested Account shall be paid in a single sum to the Participant as of
the effective date of complete termination of the Plan if (i) the requirements for distribution of
Elective Deferral Contributions in the above paragraph are met and (ii) consent of the Participant
is not required in the ELECTION PROCEDURES SECTION of Article VI to distribute a benefit which is
immediately distributable. This is a small amounts payment. The small amounts payment is in full
settlement of all benefits otherwise payable.



     Upon complete termination of the Plan, no more Employees shall become Participants and no more
Contributions shall be made.



     The assets of this Plan shall not be paid to the Employer at any time, except that, after the
satisfaction of all liabilities under the Plan, any assets remaining may be paid to the Employer.
The payment may not be made if it would contravene any provision of law.



ARTICLE IX




ADMINISTRATION OF THE PLAN




SECTION 9.01—ADMINISTRATION.




     Subject to the provisions of this article, the Plan Administrator has complete control of the
administration of the Plan. The Plan Administrator has all the powers necessary for it to properly
carry out its administrative duties. Not in limitation, but in amplification of the foregoing, the
Plan Administrator has complete discretion to construe or interpret the provisions of the Plan,
including ambiguous provisions, if any, and to determine all questions that may arise under the
Plan, including all questions relating to the eligibility of Employees to participate in the Plan
and the amount of benefit to which any Participant, Beneficiary, spouse or Contingent Annuitant may
become entitled. The Plan Administrator’s decisions upon all matters within the scope of its
authority shall be final.



     Unless otherwise set out in the Plan or Annuity Contract, the Plan Administrator may delegate
recordkeeping and other duties which are necessary for the administration of the Plan to any person
or firm which agrees to accept such duties. The Plan Administrator shall be entitled to rely upon
all tables, valuations, certificates and reports furnished by the consultant or actuary appointed
by the Plan Administrator and upon all opinions given by any counsel selected or approved by the
Plan Administrator.



     The Plan Administrator shall receive all claims for benefits by Participants, former
Participants, Beneficiaries, spouses, and Contingent Annuitants. The Plan Administrator shall
determine all facts necessary to establish the right of any Claimant to benefits and the amount of
those benefits under the provisions of the Plan. The Plan Administrator may establish rules and
procedures to be followed by Claimants in filing claims for benefits, in furnishing and verifying
proofs necessary to determine age, and in any other matters required to administer the Plan.



SECTION 9.02—EXPENSES.




     Expenses of the Plan, to the extent that the Employer does not pay such expenses, may be paid
out of the assets of the Plan provided that such payment is consistent with ERISA. Such expenses
include, but are not limited to, expenses for bonding required by ERISA; expenses for recordkeeping
and other administrative services; fees and



 









 







expenses of the Trustee or Annuity Contract; expenses for investment education service; and
direct costs that the Employer incurs with respect to the Plan.



SECTION 9.03—RECORDS.




     All acts and determinations of the Plan Administrator shall be duly recorded. All these
records, together with other documents necessary for the administration of the Plan, shall be
preserved in the Plan Administrator’s custody.



     Writing (handwriting, typing, printing), photostating, photographing, microfilming, magnetic
impulse, mechanical or electrical recording, or other forms of data compilation shall be acceptable
means of keeping records.



SECTION 9.04—INFORMATION AVAILABLE.




     Any Participant in the Plan or any Beneficiary may examine copies of the Plan description,
latest annual report, any bargaining agreement, this Plan, the Annuity Contract or any other
instrument under which the Plan was established or is operated. The Plan Administrator shall
maintain all of the items listed in this section in its office, or in such other place or places as
it may designate in order to comply with governmental regulations. These items may be examined
during reasonable business hours. Upon the written request of a Participant or Beneficiary
receiving benefits under the Plan, the Plan Administrator shall furnish him with a copy of any of
these items. The Plan Administrator may make a reasonable charge to the requesting person for the
copy.



SECTION 9.05—CLAIM AND APPEAL PROCEDURES.




     A Claimant must submit any required forms and pertinent information when making a claim for
benefits under the Plan.



     If a claim for benefits under the Plan is denied, the Plan Administrator shall provide
adequate written notice to the Claimant whose claim for benefits under the Plan has been denied.
The notice must be furnished within 90 days of the date that the claim is received by the Plan
Administrator. The Claimant shall be notified in writing within this initial 90-day period if
special circumstances require an extension of time needed to process the claim and the date by
which the Plan Administrator’s decision is expected to be rendered. The written notice shall be
furnished no later than 180 days after the date the claim was received by the Plan Administrator.



     The Plan Administrator’s notice to the Claimant shall specify the reason for the denial;
specify references to pertinent Plan provisions on which denial is based; describe any additional
material and information needed for the Claimant to perfect his claim for benefits; explain why the
material and information is needed; inform the Claimant that any appeal he wishes to make must be
in writing to the Plan Administrator within 60 days after receipt of the Plan Administrator’s
notice of denial of benefits and that failure to make the written appeal within such 60-day period
renders the Plan Administrator’s determination of such denial final, binding and conclusive.



     If the Claimant appeals to the Plan Administrator, the Claimant (or his authorized
representative) may submit in writing whatever issues and comments the Claimant (or his authorized
representative) feels are pertinent. The Claimant (or his authorized representative) may review
pertinent Plan documents. The Plan Administrator shall reexamine all facts related to the appeal
and make a final determination as to whether the denial of benefits is justified under the
circumstances. The Plan Administrator shall advise the Claimant of its decision within 60 days of
his written request for review, unless special circumstances (such as a hearing) would make
rendering a decision within the 60-day limit unfeasible. The Claimant must be notified within the
60-day limit if an extension is necessary. The Plan Administrator shall render a decision on a
claim for benefits no later than 120 days after the request for review is received.



SECTION 9.06—DELEGATION OF AUTHORITY.




     All or any part of the administrative duties and responsibilities under this article may be
delegated by the Plan Administrator to a retirement committee. The duties and responsibilities of
the retirement committee shall be set out in a separate written agreement.



SECTION 9.07—EXERCISE OF DISCRETIONARY AUTHORITY.




 









 








     The Employer, Plan Administrator, and any other person or entity who has authority with
respect to the management, administration, or investment of the Plan may exercise that authority in
its/his full discretion, subject only to the duties imposed under ERISA. This discretionary
authority includes, but is not limited to, the authority to make any and all factual determinations
and interpret all terms and provisions of the Plan documents relevant to the issue under
consideration. The exercise of authority will be binding upon all persons; will be given deference
in all courts of law; and will not be overturned or set aside by any court of law unless found to
be arbitrary and capricious or made in bad faith.



SECTION 9.08—TRANSACTION PROCESSING.




     Transactions (including, but not limited to, investment directions, trades, loans, and
distributions) shall be processed as soon as administratively practicable after proper directions
are received from the Participant or such other parties. No guarantee is made by the Plan, Plan
Administrator, Trustee, Insurer, or Employer that such transactions will be processed on a daily or
other basis, and no guarantee is made in any respect regarding the processing time of such
transactions.



     Notwithstanding any other provision of the Plan, the Employer, the Plan Administrator, or the
Trustee reserves the right to not value an investment option on any given Valuation Date for any
reason deemed appropriate by the Employer, the Plan Administrator, or the Trustee.



     Administrative practicality will be determined by legitimate business factors (including, but
not limited to, failure of systems or computer programs, failure of the means of the transmission
of data, force majeure, the failure of a service provider to timely receive values or prices, and
correction for errors or omissions or the errors or omissions of any service provider) and in no
event will be deemed to be less than 14 days. The processing date of a transaction shall be
binding for all purposes of the Plan and considered the applicable Valuation Date for any
transaction.



SECTION 9.09—VOTING AND TENDER OF QUALIFYING EMPLOYER SECURITIES.




     Voting rights with respect to Qualifying Employer Securities will be passed through to
Participants. Participants will be allowed to direct the voting rights of Qualifying Employer
Securities for any matter put to the vote of shareholders. Before each meeting of shareholders, the
Employer shall cause to be sent to each person with power to control such voting rights a copy of
any notice and any other information provided to shareholders and, if applicable, a form for
instructing the Trustee how to vote at such meeting (or any adjournment thereof) the number of full
and fractional shares subject to such person’s voting control. The Trustee may establish a
deadline in advance of the meeting by which such forms must be received in order to be effective.



     Each Participant shall be entitled to one vote for each share credited to his Account.



     If some or all of the Participants have not directed or have not timely directed the Trustee
on how to vote, then the Trustee shall vote such Qualifying Employer Securities in the same
proportion as those shares of Qualifying Employer Securities for which the Trustee has received
proper direction for such matter.



     Tender rights or exchange offers for Qualifying Employer Securities will be passed through to
Participants. As soon as practicable after the commencement of a tender or exchange offer for
Qualifying Employer Securities, the Employer shall cause each person with power to control the
response to such tender or exchange offer to be advised in writing the terms of the offer and, if
applicable, to be provided with a form for instructing the Trustee, or for revoking such
instruction, to tender or exchange shares of Qualifying Employer Securities, to the extent
permitted under the terms of such offer. In advising such persons of the terms of the offer, the
Employer may include statements from the board of directors setting forth its position with respect
to the offer.



     If some or all of the Participants have not directed or have not timely directed the Trustee
on how to tender, then the Trustee shall tender such Qualifying Employer Securities in the same
proportion as those shares of Qualifying Employer Securities for which the Trustee has received
proper direction for such matter.



     If the tender or exchange offer is limited so that all of the shares that the Trustee has been
directed to tender or exchange cannot be sold or exchanged, the shares that each Participant
directed to be tendered or exchanged shall be



 









 







deemed to have been sold or exchanged in the same ratio that the number of shares actually
sold or exchanged bears to the total number of shares that the Trustee was directed to tender or
exchange.



     The Trustee shall hold the Participant’s individual directions with respect to voting rights
or tender decisions in confidence and, except as required by law, shall not divulge or release such
individual directions to anyone associated with the Employer. The Employer may require
verification of the Trustee’s compliance with the directions received from Participants by any
independent auditor selected by the Employer, provided that such auditor agrees to maintain the
confidentiality of such individual directions.



     The Employer may develop procedures to facilitate the exercise of votes or tender rights, such
as the use of facsimile transmissions for the Participants located in physically remote areas.



ARTICLE X




GENERAL PROVISIONS




SECTION 10.01—AMENDMENTS.




     The Employer may amend this Plan at any time, including any remedial retroactive changes
(within the time specified by Internal Revenue Service regulations), to comply with any law or
regulation issued by any governmental agency to which the Plan is subject.



     An amendment may not diminish or adversely affect any accrued interest or benefit of
Participants or their Beneficiaries nor allow reversion or diversion of Plan assets to the Employer
at any time, except as may be required to comply with any law or regulation issued by any
governmental agency to which the Plan is subject.



     No amendment to this Plan shall be effective to the extent that it has the effect of
decreasing a Participant’s accrued benefit. However, a Participant’s Account may be reduced to the
extent permitted under Code Section 412(c)(8). For purposes of this paragraph, a Plan amendment
which has the effect of decreasing a Participant’s Account with respect to benefits attributable to
service before the amendment shall be treated as reducing an accrued benefit. Furthermore, if the
vesting schedule of the Plan is amended, in the case of an Employee who is a Participant as of the
later of the date such amendment is adopted or the date it becomes effective, the nonforfeitable
percentage (determined as of such date) of such Employee’s right to his employer-derived accrued
benefit shall not be less than his percentage computed under the Plan without regard to such
amendment.



     No amendment to the Plan shall be effective to eliminate or restrict an optional form of
benefit with respect to benefits attributable to service before the amendment except as provided in
the MERGERS AND DIRECT TRANSFERS SECTION of this article and below:



     (a) The Plan is amended to eliminate or restrict the ability of a Participant to receive
payment of his Account balance under a particular optional form of benefit and the amendment
satisfies the condition in (1) and the Plan satisfies the condition in (2) below:



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



     (2) The Plan provides that the amendment shall not apply to any distribution with an Annuity
Starting Date earlier than the earlier of:



     (i) the 90th day after the date the Participant receiving the distribution has been furnished
a summary that reflects the amendment and that satisfies the ERISA requirements at 29 CFR
2520.104b-3 relating to a summary of material modifications, or



     (ii) the first day of the second Plan Year following the Plan Year in which the amendment is
adopted.



     (b) The Plan is amended to eliminate or restrict in-kind distributions and the conditions in
Q&A 2(b)(2)(iii) in section 1.411(d)-4 of the regulations are met.



     If, as a result of an amendment, an Employer Contribution is removed that is not 100%
immediately vested when



 









 







made, the applicable vesting schedule shall remain in effect after the date of such amendment.
The Participant shall not become immediately 100% vested in such Contributions as a result of the
elimination of such Contribution except as otherwise specifically provided in the Plan.



     An amendment shall not decrease a Participant’s vested interest in the Plan. If an amendment
to the Plan, or a deemed amendment in the case of a change in top-heavy status of the Plan as
provided in the MODIFICATION OF VESTING REQUIREMENTS SECTION of Article XI, changes the computation
of the percentage used to determine that portion of a Participant’s Account attributable to
Employer Contributions which is nonforfeitable (whether directly or indirectly), each Participant
or former Participant



     (c) who has completed at least three Years of Service on the date the election period
described below ends (five Years of Service if the Participant does not have at least one
Hour-of-Service in a Plan Year beginning after December 31, 1988) and



     (d) whose nonforfeitable percentage will be determined on any date after the date of the
change


may elect, during the election period, to have the nonforfeitable percentage of his Account that
results from Employer Contributions determined without regard to the amendment. This election may
not be revoked. If after the Plan is changed, the Participant’s nonforfeitable percentage will at
all times be as great as it would have been if the change had not been made, no election needs to
be provided. The election period shall begin no later than the date the Plan amendment is adopted,
or deemed adopted in the case of a change in the top-heavy status of the Plan, and end no earlier
than the 60th day after the latest of the date the amendment is adopted (deemed adopted) or becomes
effective, or the date the Participant is issued written notice of the amendment (deemed amendment)
by the Employer or the Plan Administrator.




SECTION 10.02—DIRECT ROLLOVERS.




     Notwithstanding any provision of the Plan to the contrary that would otherwise limit a
Distributee’s election under this section, a Distributee may elect, at the time and in the manner
prescribed by the Plan Administrator, to have any portion of an Eligible Rollover Distribution paid
directly to an Eligible Retirement Plan specified by the Distributee in a Direct Rollover.



SECTION 10.03—MERGERS AND DIRECT TRANSFERS.




     The Plan may not be merged or consolidated with, nor have its assets or liabilities
transferred to, any other retirement plan, unless each Participant in the plan would (if the plan
then terminated) receive a benefit immediately after the merger, consolidation, or transfer which
is equal to or greater than the benefit the Participant would have been entitled to receive
immediately before the merger, consolidation, or transfer (if this Plan had then terminated). The
Employer may enter into merger agreements or direct transfer of assets agreements with the
employers under other retirement plans which are qualifiable under Code Section 401(a), including
an elective transfer, and may accept the direct transfer of plan assets, or may transfer plan
assets, as a party to any such agreement. The Employer shall not consent to, or be a party to a
merger, consolidation, or transfer of assets with a defined benefit plan if such action would
result in a defined benefit feature being maintained under this Plan.



     Notwithstanding any provision of the Plan to the contrary, to the extent any optional form of
benefit under the Plan permits a distribution prior to the Employee’s retirement, death,
disability, or severance from employment, and prior to plan termination, the optional form of
benefit is not available with respect to benefits attributable to assets (including the
post-transfer earnings thereon) and liabilities that are transferred, within the meaning of Code
Section 414(l), to this Plan from a money purchase pension plan qualified under Code Section 401(a)
(other than any portion of those assets and liabilities attributable to voluntary employee
contributions).



     The Plan may accept a direct transfer of plan assets on behalf of an Eligible Employee. If
the Eligible Employee is not an Active Participant when the transfer is made, the Eligible Employee
shall be deemed to be an Active Participant only for the purpose of investment and distribution of
the transferred assets. Employer Contributions shall not be made for or allocated to the Eligible
Employee, until the time he meets all of the requirements to become an Active Participant.



 









 





     The Plan shall hold, administer, and distribute the transferred assets as a part of the Plan.
The Plan shall maintain a separate account for the benefit of the Employee on whose behalf the Plan
accepted the transfer in order to reflect the value of the transferred assets.



     Unless a transfer of assets to the Plan is an elective transfer as described below, the Plan
shall apply the optional forms of benefit protections described in the AMENDMENTS SECTION of this
article to all transferred assets.



     A Participant’s protected benefits may be eliminated upon transfer between qualified defined
contribution plans if the conditions in Q&A 3(b)(1) in section 1.411(d)-4 of the regulations are
met. The transfer must meet all of the other applicable qualification requirements.



     A Participant’s protected benefits may be eliminated upon transfer between qualified plans
(both defined benefit and defined contribution) if the conditions in Q&A 3(c)(1) in section
1.411(d)-4 of the regulations are met. Beginning January 1, 2002, if the Participant is eligible to
receive an immediate distribution of his entire nonforfeitable accrued benefit in a single sum
distribution that would consist entirely of an eligible rollover distribution under Code Section
401(a)(31), such transfer will be accomplished as a direct rollover under Code Section 401(a)(31).
The rules applicable to distributions under the plan would apply to the transfer, but the transfer
would not be treated as a distribution for purposes of the minimum distribution requirements of
Code Section 401(a)(9).



SECTION 10.04—PROVISIONS RELATING TO THE INSURER AND OTHER PARTIES.




     The obligations of an Insurer shall be governed solely by the provisions of the Annuity
Contract. The Insurer shall not be required to perform any act not provided in or contrary to the
provisions of the Annuity Contract. Each Annuity Contract when purchased shall comply with the
Plan. See the CONSTRUCTION SECTION of this article.



     Any issuer or distributor of investment contracts or securities is governed solely by the
terms of its policies, written investment contract, prospectuses, security instruments, and any
other written agreements entered into with the Trustee with regard to such investment contracts or
securities.



     Such Insurer, issuer or distributor is not a party to the Plan, nor bound in any way by the
Plan provisions. Such parties shall not be required to look to the terms of this Plan, nor to
determine whether the Employer, the Plan Administrator, the Trustee, or the Named Fiduciary have
the authority to act in any particular manner or to make any contract or agreement.



     Until notice of any amendment or termination of this Plan or a change in Trustee has been
received by the Insurer at its home office or an issuer or distributor at their principal address,
they are and shall be fully protected in assuming that the Plan has not been amended or terminated
and in dealing with any party acting as Trustee according to the latest information which they have
received at their home office or principal address.



SECTION 10.05—EMPLOYMENT STATUS.




     Nothing contained in this Plan gives an Employee the right to be retained in the Employer’s
employ or to interfere with the Employer’s right to discharge any Employee.



SECTION 10.06—RIGHTS TO PLAN ASSETS.




     An Employee shall not have any right to or interest in any assets of the Plan upon termination
of employment or otherwise except as specifically provided under this Plan, and then only to the
extent of the benefits payable to such Employee according to the Plan provisions.



     Any final payment or distribution to a Participant or his legal representative or to any
Beneficiaries, spouse or Contingent Annuitant of such Participant under the Plan provisions shall
be in full satisfaction of all claims against the Plan, the Named Fiduciary, the Plan
Administrator, the Insurer, the Trustee, and the Employer arising under or by virtue of the Plan.



 









 





SECTION 10.07—BENEFICIARY.




     Each Participant may name a Beneficiary to receive any death benefit (other than any income
payable to a Contingent Annuitant) that may arise out of his participation in the Plan. The
Participant may change his Beneficiary from time to time. Unless a qualified election has been
made, for purposes of distributing any death benefits before the Participant’s Retirement Date, the
Beneficiary of a Participant who has a spouse who is entitled to a Qualified Preretirement Survivor
Annuity shall be the Participant’s spouse. The Participant’s Beneficiary designation and any
change of Beneficiary shall be subject to the provisions of the ELECTION PROCEDURES SECTION of
Article VI. It is the responsibility of the Participant to give written notice to the Insurer of
the name of the Beneficiary on a form furnished for that purpose.



     With the Employer’s consent, the Plan Administrator may maintain records of Beneficiary
designations for Participants before their Retirement Dates. In that event, the written
designations made by Participants shall be filed with the Plan Administrator. If a Participant
dies before his Retirement Date, the Plan Administrator shall certify to the Insurer the
Beneficiary designation on its records for the Participant.



     If there is no Beneficiary named or surviving when a Participant dies, the Participant’s
Beneficiary shall be the Participant’s surviving spouse, or where there is no surviving spouse, the
executor or administrator of the Participant’s estate.



SECTION 10.08—NONALIENATION OF BENEFITS.




     Benefits payable under the Plan are not subject to the claims of any creditor of any
Participant, Beneficiary, spouse or Contingent Annuitant. A Participant, Beneficiary, spouse or
Contingent Annuitant does not have any rights to alienate, anticipate, commute, pledge, encumber,
or assign any of such benefits, except in the case of a loan as provided in the LOANS TO
PARTICIPANTS SECTION of Article V. The preceding sentences shall also apply to the creation,
assignment, or recognition of a right to any benefit payable with respect to a Participant
according to a domestic relations order, unless such order is determined by the Plan Administrator
to be a qualified domestic relations order, as defined in Code Section 414(p), or any domestic
relations order entered before January 1, 1985. The preceding sentences shall not apply to any
offset of a Participant’s benefits provided under the Plan against an amount the Participant is
required to pay the Plan with respect to a judgement, order, or decree issued, or a settlement
entered into, on or after August 5, 1997, which meets the requirements of Code Sections
401(a)(13)(C) or (D).



SECTION 10.09—CONSTRUCTION.




     The validity of the Plan or any of its provisions is determined under and construed according
to Federal law and, to the extent permissible, according to the laws of the state in which the
Employer has its principal office. In case any provision of this Plan is held illegal or invalid
for any reason, such determination shall not affect the remaining provisions of this Plan, and the
Plan shall be construed and enforced as if the illegal or invalid provision had never been
included.



     In the event of any conflict between the provisions of the Plan and the terms of any Annuity
Contract issued hereunder, the provisions of the Plan control.



SECTION 10.10—LEGAL ACTIONS.




     No person employed by the Employer; no Participant, former Participant, or their
Beneficiaries; nor any other person having or claiming to have an interest in the Plan is entitled
to any notice of process. A final judgment entered in any such action or proceeding shall be
binding and conclusive on all persons having or claiming to have an interest in the Plan.



SECTION 10.11—SMALL AMOUNTS.




     If consent of the Participant is not required for a benefit which is immediately distributable
in the ELECTION PROCEDURES SECTION of Article VI, a Participant’s entire Vested Account shall be
paid in a single sum as of the earliest of his Retirement Date, the date he dies, or the date he
ceases to be an Employee for any other reason (the date the Employer provides notice to the record
keeper of the Plan of such event, if later). If a Participant would have



 









 







received a distribution under the first sentence of this paragraph but for the fact that the
Participant’s consent was needed to distribute a benefit which is immediately distributable, and if
at a later time consent would not be needed to distribute a benefit which is immediately
distributable and such Participant has not again become an Employee, such Vested Account shall be
paid in a single sum. This is a small amounts payment.



     If a small amounts payment is made as of the date the Participant dies, the small amounts
payment shall be made to the Participant’s Beneficiary (spouse if the death benefit is payable to
the spouse). If a small amounts payment is made while the Participant is living, the small amounts
payment shall be made to the Participant. The small amounts payment is in full settlement of
benefits otherwise payable.



     No other small amounts payments shall be made.



SECTION 10.12—WORD USAGE.




     The masculine gender, where used in this Plan, shall include the feminine gender and the
singular words, as used in this Plan, may include the plural, unless the context indicates
otherwise.



     The words “in writing” and “written,” where used in this Plan, shall include any other forms,
such as voice response or other electronic system, as permitted by any governmental agency to which
the Plan is subject.



SECTION 10.13—CHANGE IN SERVICE METHOD.




     (a) Change of Service Method Under This Plan. If this Plan is amended to change the
method of crediting service from the elapsed time method to the hours method for any purpose under
this Plan, the Employee’s service shall be equal to the sum of (1), (2), and (3) below:



     (1) The number of whole years of service credited to the Employee under the Plan as of the
date the change is effective.



     (2) One year of service for the computation period in which the change is effective if he is
credited with the required number of Hours-of-Service. If an Employee was credited with a
fractional part of a year of service as of the date of change using the elapsed time method, for
the portion of such computation period ending on the date of change the Employee will be credited
with the greater of his actual Hours-of-Service or an equivalent number of Hours-of-Service based
on the fractional part of a year of service credited as of the date of change. The Employee shall
be credited with 190 Hours-of-Service for each month of service in such fractional part of a year.



     (3) The Employee’s service determined under this Plan using the hours method after the end of
the computation period in which the change in service method was effective.



     If this Plan is amended to change the method of crediting service from the hours method to the
elapsed time method for any purpose under this Plan, the Employee’s service shall be equal to the
sum of (4), (5), and (6) below:



     (4) The number of whole years of service credited to the Employee under the Plan as of the
beginning of the computation period in which the change in service method is effective.



     (5) The greater of (i) the service that would be credited to the Employee for that entire
computation period using the elapsed time method or (ii) the service credited to him under the Plan
as of the date the change is effective.



     (6) The Employee’s service determined under this Plan using the elapsed time method after the
end of the applicable computation period in which the change in service method was effective.



     (b) Transfers Between Plans with Different Service Methods. If an Employee has been a
participant in another plan of the Employer which credited service under the elapsed time method
for any purpose which under this Plan is determined using the hours method, then the Employee’s
service shall be equal to the sum of (1), (2), and (3) below:



     (1) The number of whole years of service credited to the Employee under the other plan as of
the date he became an Eligible Employee under this Plan.



     (2) One year of service for the applicable computation period in which he became an Eligible
Employee if he is credited with the required number of Hours-of-Service. If an Employee was
credited with a fractional part of a year of service as of the date he became an Eligible Employee
using the elapsed time method, for the portion of such computation period ending on the date he
became an Eligible Employee the Employee will be credited with the greater of his actual
Hours-of-Service or an equivalent number of Hours-of-Service based on the fractional part of a year
of service credited as of the date he became an Eligible Employee. The Employee shall be credited
with 190 Hours-of-Service for each month of service in such fractional part of a year.



     (3) The Employee’s service determined under this Plan using the hours method after the end of
the computation period in which he became an Eligible Employee.



 









 





     If an Employee has been a participant in another plan of the Employer which credited service
under the hours method for any purpose which under this Plan is determined using the elapsed time
method, then the Employee’s service shall be equal to the sum of (4), (5), and (6) below:



     (4) The number of whole years of service credited to the Employee under the other plan as of
the beginning of the computation period under that plan in which he became an Eligible Employee
under this Plan.



     (5) The greater of (i) the service that would be credited to the Employee for that entire
computation period using the elapsed time method or (ii) the service credited to him under the
other plan as of the date he became an Eligible Employee under this Plan.



     (6) The Employee’s service determined under this Plan using the elapsed time method after the
end of the applicable computation period under the other plan in which he became an Eligible
Employee.



     If an Employee has been a participant in a Controlled Group member’s plan which credited
service under a different method than is used in this Plan, in order to determine entry and
vesting, the provisions in (b) above shall apply as though the Controlled Group member’s plan were
a plan of the Employer.



     Any modification of service contained in this Plan shall be applicable to the service
determined pursuant to this section.



     SECTION 10.14—MILITARY SERVICE.



     Notwithstanding any provision of this Plan to the contrary, the Plan shall provide
contributions, benefits, and service credit with respect to qualified military service in
accordance with Code Section 414(u). Loan repayments shall be suspended under this Plan as
permitted under Code Section 414(u).



ARTICLE XI




TOP-HEAVY PLAN REQUIREMENTS




SECTION 11.01—APPLICATION.




     The provisions of this article shall supersede all other provisions in the Plan to the
contrary.



     For the purpose of applying the Top-heavy Plan requirements of this article, all members of
the Controlled Group shall be treated as one Employer. The term Employer, as used in this article,
shall be deemed to include all members of the Controlled Group, unless the term as used clearly
indicates only the Employer is meant.



     The accrued benefit or account of a participant which results from deductible employee
contributions shall not be included for any purpose under this article.



     The minimum vesting and contribution provisions of the MODIFICATION OF VESTING REQUIREMENTS
and MODIFICATION OF CONTRIBUTIONS SECTIONS of this article shall not apply to any Employee who is
included in a group of Employees covered by a collective bargaining agreement which the Secretary
of Labor finds to be a collective bargaining agreement between employee representatives and one or
more employers, including the Employer, if there is evidence that retirement benefits were the
subject of good faith bargaining between such representatives. For this purpose, the term “employee
representatives” does not include any organization more than half of whose members are employees
who are owners, officers, or executives.



SECTION 11.02—DEFINITIONS.




     For purposes of this article the following terms are defined:



     Aggregation Group means:



     (a) each of the Employer’s qualified plans in which a Key Employee is a participant during the
Plan Year containing the Determination Date (regardless of whether the plan was terminated) or one
of the four preceding Plan Years,



 









 





     (b) each of the Employer’s other qualified plans which allows the plan(s) described in (a)
above to meet the nondiscrimination requirement of Code Section 401(a)(4) or the minimum coverage
requirement of Code Section 410, and



     (c) any of the Employer’s other qualified plans not included in (a) or (b) above which the
Employer desires to include as part of the Aggregation Group. Such a qualified plan shall be
included only if the Aggregation Group would continue to satisfy the requirements of Code Section
401(a)(4) and Code Section 410.


The plans in (a) and (b) above constitute the “required” Aggregation Group. The plans in (a), (b),
and (c) above constitute the “permissive” Aggregation Group.



Compensation means compensation as defined in the CONTRIBUTION LIMITATION SECTION of Article III.
For purposes of determining who is a Key Employee in years beginning before January 1, 1998,
Compensation shall include, in addition to compensation as defined in the CONTRIBUTION LIMITATION
SECTION of Article III, elective contributions. Elective contributions are amounts excludible from
the gross income of the Employee under Code Sections 125, 402(e)(3), 402(h)(1)(B), or 403(b), and
contributed by the Employer, at the Employee’s election, to a Code Section 401(k) arrangement, a
simplified employee pension, cafeteria plan, or tax-sheltered annuity. Elective contributions also
include amounts deferred under a Code Section 457 plan maintained by the Employer.



Determination Date means as to any plan, for any plan year subsequent to the first plan year, the
last day of the preceding plan year. For the first plan year of the plan, the last day of that
year.



Key Employee means any Employee or former Employee (and the Beneficiaries of such Employee) who at
any time during the determination period was:




     (a) an officer of the Employer if such individual’s annual Compensation exceeds 50 percent of
the dollar limitation under Code Section 415(b)(1)(A),



     (b) an owner (or considered an owner under Code Section 318) of one of the ten largest
interests in the Employer if such individual’s annual Compensation exceeds 100 percent of the
dollar limitation under Code Section 415(c)(1)(A),



     (c) a 5-percent owner of the Employer, or



     (d) a 1-percent owner of the Employer who has annual Compensation of more than $150,000.


The determination period is the Plan Year containing the Determination Date and the four preceding
Plan Years.



The determination of who is a Key Employee shall be made according to Code Section 416(i)(1) and
the regulations thereunder.



Non-key Employee means any Employee who is not a Key Employee.



Present Value means the present value of a participant’s accrued benefit under a defined benefit
plan. For purposes of establishing Present Value to compute the Top-heavy Ratio, any benefit shall
be discounted only for 7.5% interest and mortality according to the 1971 Group Annuity Table (Male)
without the 7% margin but with projection by Scale E from 1971 to the later of (a) 1974, or (b) the
year determined by adding the age to 1920, and wherein for females the male age six years younger
is used.



Top-heavy Plan means a plan which is top-heavy for any plan year beginning after December 31, 1983.
This Plan shall be top-heavy if any of the following conditions exist:




     (a) The Top-heavy Ratio for this Plan exceeds 60 percent and this Plan is not part of any
required Aggregation Group or permissive Aggregation Group.



     (b) This Plan is a part of a required Aggregation Group, but not part of a permissive
Aggregation Group, and the Top-heavy Ratio for the required Aggregation Group exceeds 60 percent.



     (c) This Plan is a part of a required Aggregation Group and part of a permissive Aggregation
Group and the Top-heavy Ratio for the permissive Aggregation Group exceeds 60 percent.



 









 




Top-heavy Ratio means:




     (a) If the Employer maintains one or more defined contribution plans (including any simplified
employee pension plan) and the Employer has not maintained any defined benefit plan which during
the five-year period ending on the Determination Date(s) has or has had accrued benefits, the
Top-heavy Ratio for this Plan alone or for the required or permissive Aggregation Group, as
appropriate, is a fraction, the numerator of which is the sum of the account balances of all Key
Employees as of the Determination Date(s) (including any part of any account balance distributed in
the five-year period ending on the Determination Date(s)), and the denominator of which is the sum
of all account balances (including any part of any account balance distributed in the five-year
period ending on the Distribution Date(s)), both computed in accordance with Code Section 416 and
the regulations thereunder. Both the numerator and denominator of the Top-heavy Ratio are increased
to reflect any contribution not actually made as of the Determination Date, but which is required
to be taken into account on that date under Code Section 416 and the regulations thereunder.



     (b) If the Employer maintains one or more defined contribution plans (including any simplified
employee pension plan) and the Employer maintains or has maintained one or more defined benefit
plans which during the five-year period ending on the Determination Date(s) has or has had accrued
benefits, the Top-heavy Ratio for any required or permissive Aggregation Group, as appropriate, is
a fraction, the numerator of which is the sum of the account balances under the aggregated defined
contribution plan or plans of all Key Employees determined in accordance with (a) above, and the Present
Value of accrued benefits under the aggregated defined benefit plan or plans for all Key Employees as of
the Determination Date(s), and the denominator of which is the sum of the account balances under the aggregated
defined contribution plan or plans for all participants, determined in accordance with (a) above, and the Present
Value of accrued benefits under the defined benefit plan or plans for all participants as of the Determination
Date(s), all determined in accordance with Code Section 416 and the regulations thereunder. The accrued
benefits under a defined benefit plan in both the numerator and denominator of the Top-heavy Ratio
are increased for any distribution of an accrued benefit made in the five-year period ending on the
Determination Date.



     (c) For purposes of (a) and (b) above, the value of account balances and the Present Value of
accrued benefits will be determined as of the most recent Valuation Date that falls within or ends
with the 12-month period ending on the Determination Date, except as provided in Code Section 416
and the regulations thereunder for the first and second plan years of a defined benefit plan. The
account balances and accrued benefits of a participant (i) who is not a Key Employee but who was a
Key Employee in a prior year or (ii) who has not been credited with at least an hour of service
with any employer maintaining the plan at any time during the five-year period ending on the
Determination Date will be disregarded. The calculation of the Top-heavy Ratio and the extent to
which distributions, rollovers, and transfers are taken into account will be made in accordance
with Code Section 416 and the regulations thereunder. Deductible employee contributions will not
be taken into account for purposes of computing the Top-heavy Ratio. When aggregating plans, the
value of account balances and accrued benefits will be calculated with reference to the
Determination Dates that fall within the same calendar year.


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




SECTION 11.03—MODIFICATION OF VESTING REQUIREMENTS.




     A Participant’s nonforfeitable percentage is 100%. Such percentage is at all times at least
as great as the nonforfeitable percentage required to satisfy the requirements of Code Section 416.



     The part of the Participant’s Vested Account resulting from the minimum contributions required
pursuant to the MODIFICATION OF CONTRIBUTIONS SECTION of this article (to the extent required to be
nonforfeitable under Code Section 416(b)) may not be forfeited under Code Section 411(a)(3)(B) or
(D).



SECTION 11.04—MODIFICATION OF CONTRIBUTIONS.




     During any Plan Year in which this Plan is a Top-heavy Plan, the Employer shall make a minimum
contribution as of the last day of the Plan Year for each Non-key Employee who is an Employee on
the last day of the Plan Year and who was an Active Participant at any time during the Plan Year.
A Non-key Employee is not required to have a minimum number of Hours-of-Service or minimum amount
of Compensation in order to be entitled to this minimum. A Non-key Employee who fails to be an
Active Participant merely because his Compensation is less than a stated amount



 









 







or merely because of a failure to make mandatory participant contributions or, in the case of
a cash or deferred arrangement, elective contributions shall be treated as if he were an Active
Participant. The minimum is the lesser of (a) or (b) below:



     (a) 3 percent of such person’s Compensation for such Plan Year.



     (b) The “highest percentage” of Compensation for such Plan Year at which the Employer’s
contributions are made for or allocated to any Key Employee. The highest percentage shall be
determined by dividing the Employer Contributions made for or allocated to each Key Employee during
the Plan Year by the amount of his Compensation for such Plan Year, and selecting the greatest
quotient (expressed as a percentage). To determine the highest percentage, all of the Employer’s
defined contribution plans within the Aggregation Group shall be treated as one plan. The minimum
shall be the amount in (a) above if this Plan and a defined benefit plan of the Employer are
required to be included in the Aggregation Group and this Plan enables the defined benefit plan to
meet the requirements of Code Section 401(a)(4) or 410.



     For purposes of (a) and (b) above, Compensation shall be limited by Code Section 401(a)(17).



     If the Employer’s contributions and allocations otherwise required under the defined
contribution plan(s) are at least equal to the minimum above, no additional contribution shall be
required. If the Employer’s total contributions and allocations are less than the minimum above,
the Employer shall contribute the difference for the Plan Year.



     The minimum contribution applies to all of the Employer’s defined contribution plans in the
aggregate which are Top-heavy Plans. A minimum contribution under a profit sharing plan shall be
made without regard to whether or not the Employer has profits.



     If a person who is otherwise entitled to a minimum contribution above is also covered under
another defined contribution plan of the Employer’s which is a Top-heavy Plan during that same Plan
Year, any additional contribution required to meet the minimum above shall be provided in this
Plan.



     If a person who is otherwise entitled to a minimum contribution above is also covered under a
defined benefit plan of the Employer’s which is a Top-heavy Plan during that same Plan Year, the
minimum benefits for him shall not be duplicated. The defined benefit plan shall provide an annual
benefit for him on, or adjusted to, a straight life basis equal to the lesser of:



     (c) 2 percent of his average compensation multiplied by his years of service, or



     (d) 20 percent of his average compensation.



     Average compensation and years of service shall have the meaning set forth in such defined benefit
plan for this purpose.



     For purposes of this section, any employer contribution made according to a salary reduction
or similar arrangement and employer contributions which are matching contributions, as defined in
Code Section 401(m), shall not apply in determining if the minimum contribution requirement has
been met, but shall apply in determining the minimum contribution required.



     The requirements of this section shall be met without regard to any Social Security
contribution.


By executing this Plan, the Primary Employer acknowledges having counseled to the extent necessary
with selected legal and tax advisors regarding the Plan’s legal and tax implications.



Executed
this 30th day of December 2005




BILL BARRETT CORPORATION



	 	 	 	 	 
	 	 	 
	 	By:  	                                      /s/ Robert W. Howard
 	 
	 	 	Robert W. Howard 	 
	 	 	Executive Vice President—Finance
and Investor Relations 	 
	 




     Title Defined Contribution Plan 8.0