Exhibit 4.9


 


FIRST RESTATEMENT OF THE


 


MERIT MEDICAL SYSTEMS, INC.


 


401(K) PROFIT SHARING PLAN AND TRUST


 





















 


TABLE OF CONTENTS


 


	
  ARTICLE I — DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II — EMPLOYEE PARTICIPATION REQUIREMENTS

  	
   

  
	
  A.

  	
  Eligible Class of Employees

  	
   

  
	
  B.

  	
  Participation Requirements and Commencement

  	
   

  
	
  C.

  	
  Eligibility Computation Period

  	
   

  
	
  D.

  	
  Termination.

  	
   

  
	
  E.

  	
  Employment After Termination of Active Participation

  	
   

  
	
  F.

  	
  Armed Forces

  	
   

  
	
  G.

  	
  Unpaid Leave of Absence

  	
   

  
	
  H.

  	
  Notification

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE III
  — CONTRIBUTIONS

  	
   

  
	
  A.

  	
  Employer
  Contributions

  	
   

  
	
  B.

  	
  Cash or Deferred Arrangement

  	
   

  
	
  C.

  	
  Transfer Contributions

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV — ACCRUED BENEFITS

  	
   

  
	
  A.

  	
  Participant Accounts

  	
   

  
	
  B.

  	
  Valuation of Non-Self Directed Fund and
  Allocation of Non-Self Directed Fund Earnings

  	
   

  
	
  C.

  	
  Allocations of Contributions

  	
   

  
	
  D.

  	
  Forfeitures.

  	
   

  
	
  E.

  	
  Limitations on Annual Additions

  	
   

  
	
  F.

  	
  Statements

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE V — VESTED BENEFITS

  	
   

  
	
  A.

  	
  Retirement

  	
   

  
	
  B.

  	
  Disability.

  	
   

  
	
  C.

  	
  Death.

  	
   

  
	
  D.

  	
  Other Separations From Service.

  	
   

  
	
  E.

  	
  Computation of Years of Service

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI — DISTRIBUTION OF BENEFITS

  	
   

  
	
  A.

  	
  Segregation or Distribution of Accounts

  	
   

  
	
  B.

  	
  Method of Distribution.

  	
   

  
	
  C.

  	
  Commencement and Amount(s) of Distribution.

  	
   

  
	
  D.

  	
  Hardship Distributions.

  	
   

  



 


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  E.

  	
  Spousal Survivors Benefit and Beneficiary
  Designation

  	
   

  
	
  F.

  	
  Portability

  	
   

  
	
  G.

  	
  Missing Participants and Beneficiaries

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII — ANNUITY PROVISIONS

  	
   

  
	
  A.

  	
  Application

  	
   

  
	
  B.

  	
  Definitions.

  	
   

  
	
  C.

  	
  Distribution of Qualified Annuity

  	
   

  
	
  D.

  	
  Distribution of Qualified Pre-Retirement
  Survivor Annuity.

  	
   

  
	
  E.

  	
  Notice Requirements

  	
   

  
	
  F.

  	
  Cash Out.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII — ADMINISTRATION OF THE PLAN

  	
   

  
	
  A.

  	
  Plan Administration

  	
   

  
	
  B.

  	
  Composition

  	
   

  
	
  C.

  	
  Powers and Duties of the Administrator

  	
   

  
	
  D.

  	
  Claims

  	
   

  
	
  E.

  	
  Notification.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX — ALLOCATION OF FIDUCIARY
  RESPONSIBILITIES

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE X — TRUST PROVISIONS

  	
   

  
	
  A.

  	
  General Duties of Employer and Trustee

  	
   

  
	
  B.

  	
  Powers of Trustee.

  	
   

  
	
  C.

  	
  Disbursements

  	
   

  
	
  D.

  	
  Rules Governing Performance of Duties
  by Trustee

  	
   

  
	
  E.

  	
  Settlement and Accounting

  	
   

  
	
  F.

  	
  Resignation, Removal and Substitution of
  Trustee.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI — PARTICIPANT-DIRECTED
  INVESTMENTS

  	
   

  
	
  A.

  	
  Election

  	
   

  
	
  B.

  	
  Accounting for Individual Investment Funds

  	
   

  
	
  C.

  	
  Expenses

  	
   

  
	
  D.

  	
  Disposition of Individual Investment Funds

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII — LOANS TO PARTICIPANTS

  	
   

  
	
  A.

  	
  Right to Borrow

  	
   

  
	
  B.

  	
  Loan Terms

  	
   

  
	
  C.

  	
  Allocation of Gain or Loss on Loan

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII — AMENDMENT

  	
   

  
	
  A.

  	
  Amendment by Principal Employer

  	
   

  



 


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  B.

  	
  Notice

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIV — TERMINATION

  	
   

  
	
  A.

  	
  Termination by Employer

  	
   

  
	
  B.

  	
  Notice

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XV — PREDECESSOR PLANS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XVI — TOP-HEAVY PROVISIONS

  	
   

  
	
  A.

  	
  Definitions

  	
   

  
	
  B.

  	
  Minimum Contributions and Allocations

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XVII — MISCELLANEOUS

  	
   

  
	
  A.

  	
  Right to Trust Assets

  	
   

  
	
  B.

  	
  No Guarantee of Employment

  	
   

  
	
  C.

  	
  Spendthrift/Qualified Domestic Relations
  Orders

  	
   

  
	
  D.

  	
  Number and Gender.

  	
   

  
	
  E.

  	
  Conclusiveness of Records

  	
   

  
	
  F.

  	
  Controlled Groups/Owner-Employee Control/
  Affiliated Service Groups/ Predecessor Employer/Leased Employees.

  	
   

  
	
  G.

  	
  Successor Employer

  	
   

  
	
  H.

  	
  Plan Merger

  	
   

  
	
  I.

  	
  Payment of Expenses

  	
   

  
	
  J.

  	
  Governing Law

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XVIII — PRINCIPAL EMPLOYER AND
  ASSOCIATED EMPLOYERS

  	
   

  
	
  A.

  	
  Application.

  	
   

  
	
  B.

  	
  Participation by Associated Employers.

  	
   

  
	
  C.

  	
  Status of Associated Employers.

  	
   

  
	
  D.

  	
  Transfer of Employment.

  	
   

  
	
  E.

  	
  Simultaneous Employment.

  	
   

  
	
  F.

  	
  Termination of Participation by Associated
  Employer.

  	
   

  



 


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FIRST RESTATEMENT OF THE


MERIT MEDICAL SYSTEMS, INC.


401(K) PROFIT SHARING PLAN AND TRUST


 


WHEREAS, Merit Medical Systems, Inc. (the “Principal Employer”)
maintains the Merit Medical Systems, Inc. 401(k) Plan and related trust
(the “Plan”) for the benefit of its employees and the employees of its
participating affiliates, which Plan was initially adopted effective January 1991;
and


 


WHEREAS, the Principal Employer desires to amend and restate the Plan
documents to reflect recent legislative changes.


 


NOW, THEREFORE, the Principal Employer hereby amends and restates the
Plan as follows, effective on the Effective Date specified in Article I
below, except to the extent otherwise provided herein.


 


ARTICLE I


DEFINITIONS


 


For the purpose of this Plan, the following terms shall have the
meanings set forth in this Article unless a different meaning is required
by the context.


 


1.                                       Accounts.  Each of the separate accounts maintained by
the Administrator for a Participant under the Plan.


 


2.                                       Accrued
Benefit.  With respect to any
Valuation Date, the value on that Valuation Date of each of a Participant’s
Accounts, determined in accordance with Article IV.


 


3.                                       Administrator.  The Plan Administrator appointed pursuant to Article VIII
below.


 


4.                                       Anniversary
Date.  The first day of each Plan
Year.


 


5.                                       Applicable
Amount.  For Plan Years beginning
before 1998, the amount of $3,500; for Plan Years beginning on or after 1998,
the amount of $5,000.


 


6.                                       Associated
Employer.  Any entity related to the
Principal Employer under Code Sections 414(b), 414(c) or 414(m) which,
with the consent of the Principal Employer, has adopted and maintained this
plan for its Employees.  The Associated
Employers that have adopted the Plan include Sentir Semiconductor, Inc.
(effective November 1, 1994) and Merit Services, Inc. (effective January 1,
2001).


 


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7.                                       Beneficiary.  The individual or entity designated by a Participant
to receive any amount distributable after the death of the Participant; or in
the absence of such a designation, the individual or entity identified in Article VI
G below.


 


8.                                       Benefitting.  A Participant is benefitting under the Plan
for a Plan Year if he receives or is deemed to receive an allocation in
accordance with Regulation Section 1.410(b)-3(a) for the Plan Year.


 


9.                                       Break
in Service.  An event which occurs
when a Participant fails to complete at least five hundred and one (501) Hours
of Service during a Plan Year; provided, however, that if a Plan Year is less
than twelve (12) months, no Employee or former Participant shall be deemed to
have had a Break in Service in that short year for any purpose.


 


Solely for purposes of determining whether a Break in Service for
eligibility and vesting purposes has occurred, an Employee who is absent from
work for maternity or paternity reasons shall receive credit for the Hours of
Service which would otherwise have been credited to the Employee but for the
absence, or in any case in which those hours cannot be determined, eight (8) Hours
of Service per day of absence.  “Absence
from work for maternity or paternity reasons” shall mean an absence (a) by
reason of the pregnancy of the Employee, (b) by reason of a birth of a
child of the Employee, (c) by reason of the placement of a child with the
Employee in connection with the adoption of the child by the Employee, or (d) for
purposes of caring for the child for a period beginning immediately following
such a birth or placement.  The Hours of
Service credited hereunder shall be credited (i) in the Plan Year in which
the absence begins if the crediting is necessary to prevent a Break in Service
in that period, or (ii) in all other cases, in the following Plan Year.  Notwithstanding the foregoing, no credit will
be given for absence from work for maternity or paternity reasons unless the
Employee furnishes to the Administrator such timely information as shall be
reasonably required to establish the reasons for the absence and the number of
days for which there was an absence for maternity or paternity reasons.


 


10.                                 Code.  The Internal Revenue Code of 1986, as amended
from time to time.


 


11.                                 Compensation.  With respect to any Employee for any Plan
Year, the Employee’s Section 415 Total Earnings actually paid during the
Plan Year adjusted as provided below; provided, however, that
with respect to a Participant’s initial Plan Year of participation there shall
be excluded Compensation for Hours of Service rendered by the Participant prior
to the date he or she commences participation in the Plan.  Anything herein to the contrary
notwithstanding, for purposes of computing Employer contributions and minimum
allocations in a year the Plan is Top-Heavy, Compensation shall have the
meaning set forth in Article XVI below, and for purposes of computing
limitations on Annual Additions, Compensation shall have the meaning set forth
in Article V E below.


 


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Compensation shall also include contributions made pursuant to salary
reduction agreements executed by the Participant which are excludable from the
gross income of the Participant under Section 125, 402(a)(8), 402(h) or
403(b) of the Code.


 


The annual Compensation of a Participant taken into account under the
Plan for any Plan Year shall not exceed $150,000, as adjusted by the Secretary
of the Treasury for increases in the cost of living under Section 401(a)(17)(B) of
the Code.  The cost of living adjustment
in effect for a calendar year shall apply to any Plan Year or other
determination period beginning during that calendar year.  If a Plan determines Compensation for a
period of time that contains fewer than 12 calendar months, then the annual
Compensation limit is an amount equal to the annual Compensation limit for the
calendar year in which the Compensation period begins multiplied by the ratio
obtained by dividing the number of full months in the period by 12.


 


If Compensation for any prior Plan Year is taken into account in determining
an Employee’s contributions or benefits for the current year, the Compensation
for such prior year is subject to the applicable annual Compensation limit in
effect under Code Section 401(a)(17) for that prior year.


 


12.                                 Direct
Rollover.  A Direct Rollover is a
payment by the Plan to the Eligible Retirement Plan specified by the
Distributee.


 


13.                                 Distributee.  A Distributee includes an Employee or former
Employee to whom a distribution is to be, or may be, made.  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 an alternate payee under a qualified domestic relations
order, as defined in Section 414(p) of the Code, are Distributees with
respect to the interest of the spouse or former spouse.


 


14.                                 Effective
Date.  January 1, 1997.


 


15.                                 Elective
Deferral Account.  The Account to be
maintained for a Participant under Article IV below, if applicable,
consisting of the Participant’s share of Salary Reduction Contributions and the
income, expenses, gains and losses attributable thereto.


 


16.                                 Eligible
Retirement Plan.  An Eligible
Retirement Plan is an individual retirement account described in Section 408(a) of
the Code, an individual retirement annuity described in Section 408(b) of
the Code, an annuity plan described in Section 403(a) of the Code, or
a qualified trust described in Section 401(a) of the Code, 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.


 


17.                                 Eligible
Rollover Distributions.  An Eligible
Rollover Distribution is any distribution of all or any portion of the balance
to the credit of the Distributee, except that an Eligible Rollover 


 


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Distribution does not include any distribution that is one of a series
of substantially equal periodic payments (not less frequently than annually)
made for the life (or life expectancy) of the Distributee or the joint lives
(or joint life expectancies) of the Distributee and the Distributee’s
designated beneficiary, or for a specified period of ten years or more; any
distribution to the extent such distribution is required under Section 401(a)(9) of
the Code; the portion of any distribution that is not includable in gross
income (determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities); and any distributions made
in the event of hardship pursuant to Article VI D.


 


18.                                 Employee.  (a) An individual whose relationship to
the Employer is within the meaning of “employee” under Section 7701 of the
Code or the common law of Utah and who is classified as an employee under and
paid through the Employer’s regular payroll system; and (b) an individual
who is a Leased Employee.


 


19.                                 Employer.  The Principal Employer and any Associated
Employer to the extent provided in Article XVIII B below.


 


20.                                 Employer
Stock. Shares of common stock of the Principal Employer.


 


21.                                 ERISA.  The Employee Retirement Income Security Act
of 1974, as it may be amended from time to time.


 


22.                                 Forfeiture.  Any portion of a Regular Account or
Non-Qualified Matching Contribution Account which is forfeited under Article V
D 2 below.


 


23.                                 Highly
Compensated Employee.  Any Employee
who performs service for the Employer during the Plan Year and who: (i) during
the twelve (12) month period immediately preceding the Plan Year (the “Prior
Year”), received compensation (within the meaning of Section 415(c) of
the Code) from the Employer in excess of $80,000 and was a member of the “top-paid
group” (as defined in Code Section 414(q)(3)) for such year, or (ii) who
is or was a 5-percent or greater owner of the Employer at any time during the
Plan Year or the Prior Year.  The $80,000
amount shall be adjusted annually at the same time and in the same manner as
under Code Section 415(e), except that the base period for determining
such adjustments is the calendar quarter ending September 30, 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, and the Compensation that is considered,
shall be made in accordance with Section 414(q) of the Code, the
Regulations thereunder and IRS Notice 97-45.


 


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24.                                 Hour of Service
shall mean:


 


A.                                   Each
hour for which an Employee is paid, or entitled to payment, for the performance
of duties for the Employer.  These hours
shall be credited to the Employee for the computation period or periods in
which the duties are performed;


 


B.                                     Each
hour for which an Employee is paid, or entitled to payment, by the Employer on
account of a period of time during which no duties are performed (irrespective
of whether the employment relationship has terminated) due to vacation,
holiday, illness, incapacity (including disability), layoff, jury duty,
military duty or leave of absence.  No
more than five hundred and one (501) Hours of Service will be credited under
this paragraph for any single continuous period (whether or not such period
occurs in a single computation period). 
Hours under this paragraph shall be calculated and credited pursuant to Section 2530.200b-2
of the Department of Labor Regulations, which are incorporated herein by this
reference; and


 


C.                                     Each
hour for which back pay, irrespective of mitigation of damages, is either
awarded or agreed to by the Employer. 
The same Hours of Service shall not be credited both under paragraph (a) or
paragraph (b), as the case may be, and under this paragraph (c).  These hours shall be credited to the Employee
for the computation period or periods to which the award or agreement pertains
rather than the computation period in which the award, agreement or payment is
made.


 


Hours of Service shall be determined on the basis of actual hours
worked, except that in the case of an Employee who customarily works all
business days of the Employer in a capacity classified by the Employer on a
uniform and nondiscriminatory basis as “full time” and not “part time” or “temporary,”
Hours of Service shall be determined on the basis of weeks worked, with an
Employee credited with forty-five (45) Hours of Service for each calendar week
(Monday through Sunday) in which the Employee actually works at least one (1) hour
for the Employer.


 


Hours of Service shall be credited for employment with other
Participants of an affiliated service group (as defined in Section 414(m)
of the Code), a controlled group of corporations (as defined in Section 414(b) of
the Code), or a group of trades or businesses under common control (as defined
in Section 414(c) of the Code), of which the Employer is a
Participant, and any other entity required to be aggregated with the Employer
pursuant to Section 414(o) of the Code and the Regulations
thereunder.  Hours of Service will also
be credited for any individual considered an employee for purposes of this Plan
under Sections 414(n) or 414(o) of the Code and the Regulations thereunder.


 


25.                                 Individual
Investment Account.  The Account to
be maintained for a Participant who has elected to direct the investment of all
or a part of the assets in his Elective Deferral Accounts.


 


26.                                 Individual
Investment Fund.  The assets in a
Participant’s Individual Investment Account invested by Trustee as directed by
the Participant.


 


27.                                 Leased
Employee.  An individual deemed to be
an employee of the Employer under Section 414(n) or (o) of the Code,
including any individual not an employee, who pursuant to an 


 


5





















 


agreement between the Employer and any other person has performed
services for the Employer (or for the Employer and related persons determined
in accordance with Section 414(n)(6) of the Code) on a substantially
full time basis for a period of at least one (1) year if the services were
performed under the primary direction or control of the Employer.  Notwithstanding the foregoing, an individual
shall not be a Leased Employee if:  (a) the
individual is covered by a money purchase pension plan providing: (i) a
non-integrated employer contribution rate of at least ten percent (10%) of
Compensation, as defined in Article I above, but including amounts
contributed pursuant to a salary reduction agreement which are excludable from
the employee’s gross income under Section 125, Section 402(e)(3), Section 402(h) or
Section 403(b) of the Code, (ii) immediate participation, and (iii) full
and immediate vesting; and (b) all individuals who would otherwise be
Leased Employees) do not comprise more than twenty percent (20%) of the
Employer’s non-highly compensated work force.


 


28.                                 Matching
Contributions.  Non-Qualified
Matching Contributions.


 


29.                                 Named
Fiduciary.  An individual or entity
designated in Article IX below or by Employer in the manner provided in
the Plan to carry out fiduciary responsibilities.


 


30.                                 Non-Highly
Compensated Employee.  An Employee
who is not a Highly Compensated Employee.


 


31.                                 Non-Qualified
Matching Contribution Account.  The
Account to be maintained for a Participant under Article IV below, if
applicable, consisting of his share of Non-Qualified Matching Contributions,
Forfeitures from the Non-Qualified Matching Contribution Accounts of other
Participants (if applicable), and the income, expenses, gains and losses
attributable thereto.


 


32.                                 Non-Qualified
Matching Contributions. The Employer contributions made under Section III
B 2 below.


 


33.                                 Non-Self
Directed Fund.  The assets of all
Accounts held by Trustee excluding assets of any Individual Investment Funds
and Segregated Funds.


 


34.                                 Normal
Retirement Date.  In the case of
Participants whose initial date of participation is prior to January 1,
2000, the date on which a Participant attains the age of fifty-nine and
one-half (591⁄2).  In the case of
individuals who first become Participants on or after January 1, 2000, the
later of the date they attain age sixty-five (65) or complete at least five (5) Years
of Service for vesting purposes.


 


35.                                 Participant.  An Employee who participates in the Plan
under Article II below.


 


36.                                 Permanent
Disability.  A disability of the type
described in Article V B 2.


 


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37.                                 Plan.  The Merit Medical Systems, Inc. 401(k)
Profit Sharing Plan and related trust, the terms and provisions of which are
set forth in this document, as amended from time to time.


 


38.                                 Plan
Year.  The calendar year.


 


39.                                 Profit-Sharing
Contributions.  Employer
contributions made pursuant to Section III A 1 below in the discretion of
the Principal Employer.


 


40.                                 Predecessor
Institution.  Any business entity all
(or substantially all) of the assets of which shall have been purchased by any
Employer (or any Predecessor Institution as herein defined) or which has been
merged or consolidated with any Employer (or any Predecessor Institution as
herein defined).


 


41.                                 Predecessor
Plan.  This Plan as in effect prior
to the Effective Date.


 


42.                                 Principal
Employer. Merit Medical Systems, Inc.


 


43.                                 Regular
Account.  The Account to be
maintained for a Participant under Article IV below, if applicable,
consisting of the Participant’s share of Profit-Sharing Contributions,
reallocated Forfeitures of Regular Accounts, and the income, gains, losses and
expenses attributable thereto.


 


44.                                 Regulations.  The Treasury Regulations promulgated under
the Code, as in effect from time to time.


 


45.                                 Salary
Reduction Contributions.  The
contributions made by Employer pursuant to Article III A 2 below.


 


46.                                 Section 415
Total Earnings.  A Participant’s
earned income, wages, salaries, fees for professional service and other amounts
received for personal services actually rendered in the course of employment
with the Employer maintaining the Plan (including, but not limited to,
commissions paid salesmen, compensation for services on the basis of a
percentage of profits and bonuses) and excluding the following:


 


A.                                   Employer
contributions to a plan of deferred compensation to the extent contributions
are not included in gross income of the Employee for the taxable year in which
contributed, or on behalf of an Employee to a simplified employee pension plan
to the extent the contributions are deductible under Section 219(b)(7) of
the Code, and any distributions from a plan of deferred compensation whether or
not includable in the gross income of the Employee when distributed;


 


7





















 


B.                                     Amounts
realized from the exercise of a non-qualified stock option, or when restricted
stock (or property) held by an Employee becomes freely transferable or is no
longer subject to a substantial risk of forfeiture;


 


C.                                     Amounts
realized from the sale, exchange or other disposition of stock acquired under a
qualified stock option; and


 


D.                                    Other
amounts which receive special tax benefits, or contributions made by an
Employer (whether or not under a salary reduction agreement) towards the
purchase of an annuity contract under Section 403(b) of the Code
(whether or not the contributions are excludable from the gross income of the
Employee).


 


Notwithstanding the foregoing, for Limitation Years (as defined in Article III
E 1(h) below) beginning after 1997, Section 415 Total Earnings shall
include any elective deferrals 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 excludable from the Employee’s gross income by reason
of Code Section 125.


 


47.                                 Segregated
Account.  The Vested Benefit of a
former Participant, to the extent segregated by Trustee under Article VI A
below.


 


48.                                 Segregated
Fund.  The assets segregated by
Trustee under Article VI  A below.


 


49.                                 Separation
from Service (Separated from Service). 
Termination of a Participant’s status as an Employee; provided, however,
that for purposes of determining a Participant’s entitlement to a distribution,
a Participant shall not be considered to have separated from service if under
the Code and Regulations a distribution to him would be considered an impermissible
“in service” distribution.


 


50.                                 Subsidiary.  Any corporation, all or the majority of whose
issued and outstanding capital stock is owned by an Employer.


 


51.                                 Transfer
Account.  The account to be
maintained for a Participant under Articles III C and IV below, if applicable,
consisting of his Transfer Contributions and the income, expenses, gains and
losses attributable thereto.


 


52.                                 Transfer
Contributions.  Contributions under Article III
C below.


 


53.                                 Trust.  The trust formed by the Employer in conjunction
with the adoption of the Employer’s Plan.


 


8





















 


54.                                 Trustee.  The Trustee(s) appointed by the
Employer.  As of the Effective Date, the
Trustee is Zions Bank.


 


55.                                 Trust
Fund.  The assets held by Trustee, comprising
the Non-Self Directed Fund and the Individual Investment Funds and the
Segregated Fund.


 


56.                                 UMI
Transferees.  Former employees of
Universal Medical Instruments (“UMI”) who became Employees on February 1,
1997 in connection with the Principal Employer’s February 1, 1997
acquisition of business assets from UMI.


 


57.                                 USERRA.  The Uniformed Services Employment and
Reemployment Rights Act, as codified at Chapter 43 of Title 38 of the United
States Code.


 


58.                                 Valuation
Date.  The last day of each quarter
and with respect to Individual Investment Accounts such other dates as to which
the investments can be valued under the applicable investment option.


 


59.                                 Vested
Benefit.  The non-forfeitable portion
of a Participant’s Accrued Benefit as determined under Article V below
with respect to his other Accounts.


 


60.                                 Year
of Service.


 


A.                                   For
purposes of determining vesting, a Plan Year in which an Employee has completed
at least one thousand (1,000) Hours of Service. 
For the purpose of determining eligibility to participate prior to October 1,
1999, completion of at least one thousand (1,000) Hours of Service during an
eligibility computation period (as provided under Article II C).  Notwithstanding the foregoing, if the Plan
Year is a period of less than twelve (12) consecutive months due to a Plan
amendment changing Plan Years, a Participant or Employee shall be credited with
a Year of Service during the short Plan Year for purposes of vesting if he
completes the requisite one-thousand (1,000) Hours of Service during the twelve
(12) consecutive month period which begins on the first day of the short Plan
Year.  Years of Service shall not be
taken into account for purposes of determining benefit accrual.


 


B.                                     Service
with a Predecessor Institution shall be considered service with an Employer if
the Predecessor Institution maintained a qualified plan which is continued in
conjunction with or as a part of this Plan. 
UMI Transferees shall be credited for eligibility and vesting purposes
for the period of their pre-participation service with Universal Medical
Instruments.  Employees previously
employed by Sentir, Inc. shall be credited for eligibility and vesting
purposes with the period of their pre-November 1, 1994 service with Sentir, Inc.  Employees previously employed by Mallinckrodt, Inc.
who transfer employment to the Employer directly from Mallinckrodt, Inc.
between  August 1, 1999 and November 30,
1999 in connection with the Employer’s acquisition of the business of
Mallinckrodt, Inc. shall be credited for eligibility and vesting purposes
with the period of their pre-transfer service with Mallinckrodt, Inc.


 


9





















 


C.                                     Other
service with a Predecessor Institution or another employer shall be considered
service with an Employer to the extent required by law.


 


ARTICLE II


EMPLOYEE PARTICIPATION REQUIREMENTS


 


A.                                   Eligible
Class of Employees.  All
Employees other than Leased Employees shall be eligible to participate in the
Plan provided they satisfy the applicable participation requirements set forth
in Article II B below.  Leased
Employees may not participate in the Plan.


 


B.                                     Participation
Requirements and Commencement.  Each
Employee within the eligible class who was a Participant immediately prior to
the Effective Date shall remain a Participant until his or her participation
terminates as provided in Article II D below.  Except as provided below, any other Employee
within the eligible class shall become a Participant on the Entry Date
coincident with or immediately following the date he or she completes one (1) Year
of Service and attains at least twenty-one (21) years of age (eighteen (18)
years of age for pre-July 1, 1996 Employees) provided he or she is still
employed by the Employer on that Entry Date. 
Notwithstanding the foregoing: (1) effective October 1, 1999,
any Employee within the eligible class who commenced employment with the
Employer prior to October 1, 1999 and who is not a Participant on September 30,
1999 shall become a Participant on the first Entry Date on or after October 1,
1999 that is at least six (6) months after his or her most recent
employment commencement date with the Employer so long as he or she is still
employed on that Entry Date; and (2) effective on and after February 10,
2000, any Employee within the eligible class shall become a Participant on the
date he or she first renders one Hour of Service for the Employer on or after February 10,
2000.  For purposes of this Article II
B, the “Entry Dates” are the first day of each calendar quarter.


 


In the event a Participant ceases to be a Participant of the eligible
class and terminates active participation in the Plan, the Participant shall
participate immediately upon again entering the eligible class unless he has
incurred a Break in Service, in which case his eligibility to again participate
shall be determined under the Plan’s Break in Service rules in Section E
below.  Any provision of this Plan to the
contrary notwithstanding (including Article XVII F), no individual who is
deemed an Employee of the Employer by virtue of Article XVII F 1 below
shall be eligible to become a Participant unless he would be considered an
Employee within the eligible class without the application of Article XVII
F 1 below.


 


C.                                     Eligibility
Computation Period.  For purposes of
determining whether an Employee has completed a Year of Service for eligibility
purposes, the initial eligibility computation period shall be the twelve (12)
consecutive month period commencing on the date the Employee first performs an
Hour of Service for the Employer.  The
succeeding eligibility computation periods after the initial period shall be
the Plan Year, including the first Plan Year which began during the Employee’s
first twelve (12) consecutive months of employment.


 


10





















 


D.                                    Termination.  A Participant’s active participation in the
Plan shall terminate on the earlier of:  (1) the
last day of the Plan year in which he Separates from Service; (2) the date
of any distribution made in accordance with Article VI C of the Plan; or (3) the
date the Participant ceases to be within the class of Employees eligible to
participate in the Plan.


 


E.                                      Employment
After Termination of Active Participation. 
A former Participant will again become a Participant immediately upon
completing an Hour of Service after termination.


 


F.                                      Armed
Forces. Any provision of this Plan to the contrary notwithstanding, service
credit, eligibility, contributions and benefits with respect to qualified
military service under USERRA will be provided in accordance with Code Section 414(u).


 


G.                                     Unpaid
Leave of Absence.  A Participant who
ceases to perform the duties of his employment pursuant to an unpaid leave of
absence granted by Employer shall not be deemed to have terminated active
participation.  During the leave of
absence and during any Plan Year in which he resumes employment at the end of
the leave of absence, he shall be treated as a Participant who has neither
terminated active participation nor completed a Year of Service during the
applicable Plan Year(s), unless he has otherwise completed a Year of Service
for the Plan Year(s).  If a Participant
fails to return to service at the end of his leave of absence, the
determination relating to his termination of active participation shall be made
as of the last day of the Plan Year in which he fails to return to
service.  Rules governing leaves of
absence shall be applied to all Participants in a uniform and nondiscriminatory
manner.


 


H.                                    Notification.  After each Plan Year, the Employer shall
notify the Administrator and Trustee of the name, address, Hours of Service and
Compensation of each Employee during the Plan Year.  If the Hours of Service of an Employee exceed
one thousand (1,000) in a Plan Year, a statement of this fact shall
suffice.  The notice shall also include
the names of all Participants who, during the Plan Year, were within the
purview of Article II D and E above or whose participation in the Plan
terminated under the provisions of Article II C above, and the date of
birth and date of employment or reemployment of each Employee newly eligible to
participate.


 


ARTICLE III


CONTRIBUTIONS


 


A.                                   Employer
Contributions.


 


1.                                       The
Employer may make such Profit Sharing Contributions on behalf of its eligible
Participants each Plan Year, if any, as the Employer in its sole discretion may
determine.  Profit Sharing Contributions
shall be made in cash or in shares of Employer Stock, as the Employer in its
sole discretion determines.


 


2.                                       The
Employer shall also make such Salary Reduction Contributions on behalf of its
Participants as are provided in Article III B 1 below.


 


11





















 


3.                                       The
Employer may also make such Matching Contributions on behalf of its
Participants as are provided under Article III B 2 below.


 


4.                                       In
no event, however, shall the Employer’s contribution for any Plan Year exceed
the maximum amount deductible from Employer’s income for the taxable year with
or within which the Plan Year ends under Section 404 of the Code.  The Employer’s contributions for a Plan Year
shall be deemed to have been made contingent upon their deductibility for
federal income tax purposes and shall be paid within the time limit prescribed
by the Code to qualify the contributions for a deduction for federal income tax
purposes for the Plan Year.  Any
Profit-Sharing Contributions, Salary Reduction Contributions, or Non-Qualified
Matching Contributions, for a Plan Year shall be held and invested by the
Trustee in such manner and upon such terms as are provided in Articles X
and XI below; provided, however, that the Administrator may direct that the
investment of any such Employer contributions for a Plan Year received by
Trustee before year end shall be accounted for separately during the remainder
of the Plan Year, with the advance contribution to be treated as a part of the
Employer’s contribution as of the last day of the Plan Year and allocated as
such, and with any income on the investment as of the last day of the Plan Year
to be allocated in the same manner as the Employer contributions among those
Participants entitled to share in the Employer contributions for the Plan Year,
but not to be treated as a part of the Annual Additions.


 


B.                                     Cash
or Deferred Arrangement.


 


1.                                       A
Participant may make Salary Reduction Contributions in the following manner:


 


(a)                                  A
Participant through salary reduction payroll deposits may contribute for each
or any payroll period an amount equal to the product of the Participant’s
designated Contribution Rate multiplied by his Compensation for the applicable
payroll period.  A Participant’s
Contribution Rate shall be any whole number percentage from zero percent (0%)
to twenty percent (20%) as designated by the Participant under such uniform and
non-discriminatory procedures as the Administrator may direct.


 


(b)                                 Elections
to make Salary Reduction Contributions shall be made in writing on such forms
as are provided by the Administrator. 
All election forms must be completed and executed by the Participant and
returned to the Administrator in a timely manner for its approval to be
effective.  Salary Reduction
Contributions shall be made to the Trustee through the Participant’s Employer
by salary reduction payroll deposit, and the Employer shall remit all such
contributions to the Trustee on the earliest date on which they can be
reasonably segregated from the Employer’s general assets.  Salary Reduction Contributions of a
Participant shall be credited to his Elective Deferral Account upon receipt by
Trustee.


 


12





















 


(c)                                  A
Participant may by timely written notice provided to the Administrator elect to
commence, modify, or terminate his Salary Reduction Contributions (effective as
of such dates as the Administrator may permit on a uniform and
nondiscriminatory basis).  All such
notices shall be provided to the Administrator by such dates or within such
periods as the Administrator may permit on a uniform and nondiscriminatory
basis.  A Participant who has voluntarily
terminated his Salary Reduction Contributions may recommence his contributions
as of such date or dates as the Administrator may specify on a uniform and
non-discriminatory basis.


 


(d)                                 If
a Participant terminates his employment, his Salary Reduction Contributions to
the Plan shall cease.  If a Participant
receives a “hardship distribution” from the Plan under Article VI D below,
his Salary Reduction Contributions shall be suspended for twelve (12) months from the date of distribution.


 


(e)                                  Notwithstanding
anything to the contrary herein, the Administrator may, on a nondiscriminatory
basis at any time and from time to time, unilaterally and prospectively (1) require
contributing Highly Compensated Employees to limit or reduce the rate of their
Salary Reduction Contributions, or (2) return to contributing Highly
Compensated Employees some or all of their Salary Reduction Contributions to
the extent considered advisable by the Administrator in order to satisfy the
requirements of Article III B 3 and 4 below.


 


(f)                                    All
Salary Reduction Contributions are intended to be payments to the Plan by the
Employer under a cash or deferred arrangement described in Section 401(k)
of the Code, and all references herein to those contributions as Employee or
Participant contributions are for convenience only and are not intended as a
designation of those contributions as employee contributions within the meaning
of Section 414(h)(1) of the Code.


 


2.                                       Each
Plan Year, the Employer may make a discretionary Non-Qualified Matching
Contribution on behalf of each Participant who has made salary Reduction
Contributions to the Plan for the year. 
The amount of Non-Qualified Matching Contributions shall be such
percentage or percentages of Salary Reduction Contributions as the Employer in
its sole discretion determines from year to year, provided that the
contribution percentage(s) established for any particular Plan Year shall apply
during that year uniformly to all Participants who elect to make Salary
Reduction Contributions for the year. 
All Non-Qualified Matching Contributions shall be made in whole shares
of Employer Stock, with the number of shares contributed determined based on
the closing price of the shares as of the date of contribution or last
preceding date on which such price is available.  Any fractional share shall be rounded up or
down to the nearest whole share.


 


3.                                       (a)                                  Notwithstanding
anything herein to the contrary, no Elective Deferrals shall be made on behalf
of a Participant in excess of the dollar limitation set forth in Section 402(g) of
the Code in effect at the beginning of the taxable year (as adjusted for
increases in the cost of living in accordance with the Regulations) during any
calendar year.


 


13





















 


(b)                                 If
the Elective Deferrals made on behalf of a Participant for a calendar year
under this Plan plus any “Elective Deferrals” made by the Participant under
other plans for the taxable year exceed the foregoing limit, the Participant on
whose behalf the contributions were made may notify the Administrator not later
than March 1 following the year in question of the amount of the Excess
Elective Deferrals allocable to this Plan, and request distribution of those
Excess Elective Deferrals.  Upon receipt
of such request, the Administrator shall distribute the allocable Excess
Elective Deferrals (plus any income or less any loss attributable thereto
through the date of distribution) to the requesting Participant not later than April 15
following the calendar year of contribution. 
Such a distribution may be made notwithstanding any restrictions on
distributions elsewhere in the Plan.


 


(c)                                  The
amount of income or loss allocable to Excess Elective Deferrals under this Plan
is the income or loss allocable to the Participant’s Elective Deferral Account
for the Plan Year of contribution, multiplied by a fraction, the numerator of
which is the Participant’s Excess Elective Deferrals for the year and the
denominator of which is the Participant’s Elective Deferral Account balance as
of the last day of the Plan Year in which the Excess Elective Deferrals are
made (excluding any income or loss occurring during that Plan Year).


 


4.                                       The
following limitation (“ADP Test”) shall apply to the Plan each Plan Year.


 


(a)                                  The
ADP for a Plan Year the Participants who are Highly Compensated Employees for
the Plan Year shall not exceed the greater of (1) or (2) as follows:


 


(1)                                  One
hundred twenty-five percent (125%) of the ADP for the prior Plan Year of all
Participants who were Non-Highly Compensated Employees for the prior Plan Year,
or


 


(2)                                  Two
hundred percent (200%) of the ADP for the prior Plan Year of all Participants
who were Non-Highly Compensated Employees for the prior Plan Year; provided,
however, that the ADP for the Plan Year for the Participants who are Highly Compensated
Employees may not exceed the ADP for the prior Plan Year of the Participants
who were Non-Highly Compensated Employees for the Plan Year by more than two (2) percentage
points.


 


(b)                                 For
purposes of this Article III B 4, the following special rules shall
apply:


 


(1)                                  In
the event that this Plan satisfies the requirements of Sections 401(k),
401(a)(4), or 410(b) of the Code only if aggregated with one or more other
Plans, or if one or more other Plans satisfy those requirements of the Code
only if aggregated with this Plan, then this Article III B 4 shall be
applied by determining the ADP of Employees as if all such Plans were a single
plan.  Any adjustments to Non-Highly
Compensated Employee ADP for the prior Plan Year will be made in accordance
with IRS Notice 98-1 and any superseding IRS guidance.  Plans may


 


14





















 


only be aggregated to satisfy Code Section 401(k) if they have the
same Plan Year and use the same ADP testing method.


 


(2)                                  For
purposes of the ADP Test, Elective Deferrals must be made before the last day
of the twelve (12) month period immediately following the Plan Year for which
the contributions are to be taken into account.


 


(3)                                  The
Employer shall maintain records sufficient to demonstrate satisfaction of the
ADP Test.


 


(4)                                  The
determination and treatment of the ADP of any Participant shall satisfy such
other requirements as may be prescribed in the Regulations.


 


(c)                                  For
purposes of this Article III B 4, the following definitions shall apply:


 


(1)                                  ADP.  With respect to any Participant group, the
average of the ratios computed separately for each Participant of the group of:
(i) their Salary Reduction Contributions (including Excess Elective
Deferrals of Highly Compensated Employees only) for the Plan Year, but
excluding Excess Elective Deferrals of Non-Highly Compensated Employees and any
Salary Reduction Contributions taken into account under the ACP Test under Article III
B 5 below (provided the ADP Test is satisfied both with and without exclusion
of those Salary Reduction Contributions); to (ii) their Compensation for
the entire Plan Year.  The ADP of an
Employee who would be a Participant but for the fact that he does not make or
receive any allocation of Salary Reduction Contributions, shall be zero
(0).  The ADP for any Participant who is
a Highly Compensated Employee for the Plan Year and who is eligible to have
Salary Reduction Contributions or equivalent contributions under another plan
allocated to his accounts under two or more arrangements described in Section 401(k)
of the Code that are maintained by the Employer, shall be determined as if the
contributions were made under a single arrangement.  If a Highly Compensated Employee participates
in two (2) 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.


 


(2)                                  Elective
Deferrals.  Any Salary Reduction
Contributions or other Employer contributions made to the Plan at the election
of the Participant, in lieu of cash Compensation, including contributions made
pursuant to a salary reduction agreement or other deferral mechanism.  With respect to any taxable year, a
Participant’s Elective Deferral is the sum of all employer contributions made
on behalf of such  Participant pursuant
to an election to defer under any qualified CODA as described in Section 401(k)
of the Code, any simplified employee pension cash or deferred arrangement as
described in Section 402(h)(1)(B) of the Code, any eligible deferred
compensation plan under Section 457 of the Code, any plan as described
under Section 501(c)(18) of 


 


15





















 


the Code, and any Employer contributions made on the behalf of a
Participant for the purchase of an annuity contract under Section 403(b) of
the Code pursuant to a salary reduction agreement.


 


(3)                                  Excess
Contributions.  With respect to any
Plan Year, the excess of:


 


(i)                                     The
aggregate amount of contributions actually taken into account in computing the
Average ADP of the Highly Compensated Employees for such Plan Year, over


 


(ii)                                  The
maximum amount of such contributions permitted under the ADP Test.


 


(4)                                  Excess
Elective Deferrals.  Elective
Deferrals that are includable in a Participant’s gross income under Section 402(g) of
the Code to the extent the Participant’s Elective Deferrals for a taxable year
exceed the dollar limitation under that Code section.


 


(d)                                 (1)                                  If
the Average ADP for a Plan Year for the Participants who are Highly Compensated
Employees for that Plan Year is more than the amount permitted under the above
restrictions, the Excess Contributions, plus any income and minus any loss
allocable to the Excess Contributions shall be distributed no later than the
last day of the following Plan Year to those Highly Compensated Participants to
whose Accounts the Excess Contributions were allocated for the applicable Plan
Year.  The Employer, however, will incur
an excise tax of ten percent (10%) of the amount of Excess Contributions not
distributed within two and one-half (21⁄2 months after the close of the Plan
Year.  Distribution of Excess
Contributions (and income allocable thereto) shall be made among the Highly Compensated
Participants with the largest amounts of contributions taken into account in
the ADP test for the Plan Year in which the Excess Contributions arose,
beginning with the Highly Compensated Employee with the largest amount of such
contributions and continuing in descending order until all Excess Contributions
have been allocated and distributed.  For
purposes of this provision, the “largest amount” is determined after any prior
distribution of Excess Deferrals.


 


(2)                                  Excess
Contributions shall be distributed on a pro rata basis from the appropriate
Highly Compensated Participants’ Elective Deferral Accounts.


 


(3)                                  The
amount of income or loss allocable to a Highly Compensated Employee’s Excess
Contributions shall equal the sum of the income or loss allocable to the Highly
Compensated Employee’s Elective Deferral Account for the Plan Year of the
Excess Contribution, multiplied by a fraction, the numerator of which is the Highly
Compensated Employee’s share of Excess Contributions for the Plan Year and the
denominator of which is the


 


16





















 


Accrued Benefit attributable to his Elective Deferral Account
determined as of the last day of the Plan Year without regard to income or loss
allocable for the Plan Year;


 


5.                                       The
following limitation (“ACP Test”) shall apply to the Plan each Plan Year.


 


(a)                                  The
ACP for a Plan Year of the Participants who are Highly Compensated Employees
for the Plan Year shall not exceed the greater of (1) or (2) as
follows:


 


(1)                                  One
hundred twenty-five percent (125%) of the ACP for the prior Plan Year for the
Participants who were Non-Highly Compensated Employees for such prior Plan
Year, or


 


(2)                                  Two
hundred percent (200%) of the ACP for the prior Plan Year of the Participants
who were Non-Highly Compensated Employees for such prior Plan Year; provided,
however, that the ACP for the current Plan Year of the Participants who are
current Plan Year Highly Compensated Employees may not exceed the ACP for the
prior Plan Year of the Participants who were Non-Highly Compensated Employees for
the prior Plan Year by more than two (2) percentage points.


 


(b)                                 For
purposes of this Article III B 5, the following definitions shall apply:


 


(1)                                  ACP.  The average of the “Contribution Percentages”
of the “Eligible Participants” in a group.


 


(2)                                  Contribution
Percentage.  The ratio (expressed as
a percentage) of each Eligible Participant’s Contribution Percentage Amounts to
the Participant’s Compensation for the entire Plan Year.  The Contribution Percentage for any
Participant who is a Highly Compensated Employee and who is eligible to have
Contribution Percentage Amounts allocated to his Accounts under two or more
plans described in Section 401(a) of the Code, or arrangements
described in Section 401(k) of the Code that are maintained by the
Employer, shall be determined as if the total of the Contribution Percentage
Amounts was made under each plan.


 


(3)                                  Contribution
Percentage Amounts.  The sum of the
Non-Qualified Matching Contributions (plus matching contributions or voluntary
after-tax contributions under another plan) for the Plan Year.  Contribution Percentage Amounts shall not
include Forfeitures of Matching Contributions that are used to correct Excess
Aggregate Contributions or because the Contributions to which they related are
Excess Deferrals, Excess Contributions or Excess Aggregate Contributions.  The Employer may elect to include in
Contribution Percentage Amounts Salary Reduction Contributions, so long as the
ADP Test is met before Salary Reduction Contributions are used in the ACP Test
and continues to be met following the exclusion of those Salary Reduction
Contributions that are used to meet the ACP Test.


 


17





















 


(4)                                  Eligible
Participant.  Any Employee who is
eligible to make a Salary Reduction Contribution (if the Employer takes those
contributions into account in the calculation of the Contribution Percentage
Amounts), or to receive a Non-Qualified Matching Contribution (including
Forfeitures from Non-Qualified Matching Contribution Accounts).


 


(5)                                  Excess
Aggregate Contributions.   With
respect to any Plan Year, the excess of: 
(i) the aggregate Contribution Percentage Amounts taken into
account in computing the numerator of the Contribution Percentage actually made
on behalf of Participants who are Highly Compensated Employees for such Plan
Year, over (ii) the maximum Contribution Percentage Amounts permitted by
the ACP Test.  Excess Aggregate
Contributions shall be determined after first determining Excess Contributions
and the Excess Elective Deferrals.


 


(c)                                  For
purposes of this Article III B 5, the following special rules apply:


 


(1)                                  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.


 


(2)                                  In
the event that this Plan satisfies the requirements of Sections 401(m), 401(a)(4) or
410(b) of the Code only if aggregated with one or more other plans, or if
one or more other plans satisfy these requirements of the Code only if
aggregated with this Plan, this Article III B 5 shall be applied by
determining the Contribution Percentage Amounts of Employees as if all those
plans were a single plan.  Any
adjustments to Non-Highly Compensated Employee ACP for the prior Plan Year will
be made in accordance with IRS Notice 98-1 (or superseding IRS guidance).   Plans may be aggregated in order to satisfy Section 401(m)
of the Code only if they have the same Plan Year, and use the same ACP Testing
method.


 


(3)                                  Voluntary
contributions are considered to have been made in the Plan Year in which they
are contributed to the applicable trust. 
Matching Contributions shall be considered to be made for a Plan Year if
made no later than the end of the twelve (12) month period beginning on the day
after the close of the Plan Year.


 


(4)                                  The
Employer shall maintain records sufficient to demonstrate satisfaction of the
ACP Test.


 


(5)                                  The
determination and treatment of the Contribution Percentage of any Participant
shall satisfy such other requirements as may be prescribed in the Regulations.


 


(d)                                 (1)                                  Notwithstanding
any other provisions of the Plan, each Highly Compensated Participant’s share
of the “Excess Aggregate Contributions”, plus any income and 


 


18





















 


minus any losses allocable to the Excess Aggregate Contributions, shall
be forfeited, to the extent non-vested, and to the extent vested distributed no
later than the last day of the following Plan Year to the Highly Compensated
Participants who were allocated such Excess Aggregated Contributions 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 the ACP Test for
the Plan Year in which the excess arose, beginning with the Participant with
the largest amount of such Contribution Percentage Amounts and continuing in
descending order until all Excess Aggregate Contributions have been
allocated.  For this purpose, the “largest
amount” is determined after any prior distribution of Excess Aggregate
Contributions.  The Employer, however,
will incur an excise tax of ten percent (10%) of the Excess Aggregate
Contributions not distributed within two and one-half (21⁄2 months after the
close of the Plan Year.  The
Administrator shall first determine whether the Highly Compensated Employees
have made Excess Deferrals or Excess Contributions before it determines Excess
Aggregate Contributions for the Plan Year.


 


(2)                                  Each
Highly Compensated Participant’s share of Excess Aggregate Contributions shall
be forfeited or distributed, as applicable, from the Participant’s
Non-Qualified Matching Contribution Account.


 


(3)                                  The
income or loss allocable to Excess Aggregate Contributions allocated to each
Highly Compensated Employee is the income or loss allocable to the Participant’s
Non-Qualified Matching Contribution Account and, if applicable, Elective
Deferral Account for the Plan Year, multiplied by a fraction, the numerator of
which is the Participant’s Excess Aggregate Contributions for the year and the
denominator of which is the Participant’s Account balance(s) attributable to
Contribution Percentage Amounts (excluding any income or loss occurring during
such Plan Year).


 


6.                                       (a)                                  If
one or more Highly Compensated Employees participate in both a cash or deferred
arrangement (“CODA”) and a plan subject to the ACP Test maintained by the
Employer, and the sum of the Average ADP and ACP of those Highly Compensated
Employees exceeds the “Aggregate Limit” (as defined below), then the
Contribution Percentage Amounts of those Highly Compensated Employees who also
participate in a CODA shall be reduced in the manner prescribed in Article III
B 5 above (beginning with the Highly Compensated Employee whose Contribution
Percentage Amount is the highest) so that the Aggregate Limit is not
exceeded.  The amount by which each
Highly Compensated Employee’s Contribution Percentage Amount 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 both the
average ADP and the ACP of the Participants who are Highly Compensated
Employees does not exceed 1.25 multiplied by the ADP and the ACP of the
Participants who are Non-Highly Compensated Employees.


 


19










 













 


(b)                                 For
purposes of this Article III B 6, the term “Aggregate Limit” shall mean
the sum of: (i) one hundred twenty-five percent (125%) of the greater of
the ADP of the Non-Highly Compensated Employees for the prior Plan Year or the
ACP of the Non-Highly Compensated Employees for the prior Plan Year; and (ii) the
lesser of two hundred percent (200%) of, or two percentage points plus, the
lesser of such prior Plan Year ADP or ACP; provided, however, that “lesser”
shall be substituted for “greater” in “(i)” above, and “greater” shall be
substituted for “lesser” after “two percentage points plus” in “(ii)” above if
such substitution results in a larger Aggregate Limit.


 


7.                                       Salary
Reduction Contributions (and income allocable to each) shall not be distributed
to a Participant or his Beneficiary or Beneficiaries, earlier than Separation
from Service, death, or Permanent Disability; except that these amounts may be
distributed upon:


 


(a)                                  Termination
of the Plan without the establishment of another defined contribution plan,
other than an employee stock ownership plan (as defined in Code Section 4975(e)(7),
a simplified employee pension (as defined in Code Section 408(k)) or a
simple IRA plan (as defined in Code Section 408(p)).


 


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


 


(c)                                  The
disposition by a corporate Employer to an unrelated entity of the corporation’s
interest in a Subsidiary if the corporation continues to maintain this Plan,
but only with respect to Participants who continue employment with the
Subsidiary.


 


(d)                                 The
attainment of age 591⁄2.


 


(e)                                  The
Hardship of the Participant as provided in Article VI D below.


 


C.                                     Transfer
Contributions.  An Employee within
the class covered by the Plan, regardless of whether he has satisfied the
applicable service or age eligibility requirements, may transfer, rollover, or
caused to be transferred or rolled over, to the Trustee, from a plan qualified
under Section 401 of the Code, directly, indirectly, or through a
qualified individual retirement account, such funds as the Plan Administrator
determines to qualify under the Code as a rollover contribution or as a direct
trustee-to-trustee transfer not constituting a taxable distribution to the Employee.  A Participant’s Vested Benefit shall be one
hundred percent (100%) of the Accrued Benefit of his Transfer Account at all
times.


 


20





















 


ARTICLE IV


ACCRUED BENEFITS


 


A.                                   Participant
Accounts.  The Administrator shall
establish and maintain as a continuing record of the Accrued Benefit of each
Participant, to the extent applicable, a Regular Account, a Transfer Account,
an Elective Deferral Account and a Non-Qualified Matching Contribution Account.


 


B.                                     Valuation
of Non-Self Directed Fund and Allocation of Non-Self Directed Fund Earnings.  The Trustee shall determine the fair market
value of the assets of the Non-Self Directed Fund as of each Valuation
Date.  In the valuation, no amount shall
be included or accrued for any Employer contributions (which shall instead be
accounted for as provided in Article IV C below) with respect to that Plan
Year received by Trustee or determined by Employer, but not yet received; and
the amount of any unpaid cost, fees or expenses shall be accrued and deducted
as a liability in such amount as the Administrator shall direct.  If any assets are invested in the common
trust fund, the valuation of those assets shall be based on the Trustee’s
valuation of such common trust fund concurrently with or most recently
preceding the Valuation Date.


 


Subject to Article XI below, the Administrator shall allocate the
adjusted value of the Non-Self Directed Fund as so determined among the
Accounts invested in the Fund in the same proportion that the Accrued Benefit
of each on the next preceding Valuation Date bore to the total Accrued Benefit
of all Participants on the preceding Valuation Date who remain Participants on
the current Valuation Date.  Earnings and
losses within the Individual Investment Funds shall be allocated as provided in
Article XI below.


 


C.                                     Allocations
of Contributions.


 


1.                                       The
Administrator shall allocate the Profit-Sharing Contributions for the Plan Year
(and all Forfeitures from Regular Accounts for the Plan Year) among the Regular
Accounts of the eligible Participants who are still employed by the Employer on
the last day of the Plan Year (or who Separated from Service during the Plan
Year on account of death, Permanent Disability or retirement at or after age 591⁄2)
in accordance with the following formula. 
Each such eligible Participant’s Regular Account shall be credited with
that portion of the Profit-Sharing Contributions and Forfeitures from Regular
Accounts for the Plan Year which bears the same ratio to total Profit-Sharing
Contributions and Regular Account Forfeitures for the Plan Year as the
Participant’s Compensation for the Plan Year bears to the total Compensation of
all eligible Participants for the Plan Year. 
No requirement that a Participant remain employed on the last day of the
Plan Year shall be applied for a Plan Year if application of the requirement
would cause the Plan to violate Section 410(b) of the Code.


 


2.                                       The
Administrator shall allocate each Participant’s Salary Reduction Contributions
to the Participant’s Elective Deferral Account as of the Valuation Date
coincident with or immediately following the date of contribution.  Non-Qualified Matching Contributions made on 


 


21





















 


behalf of a Participant shall be allocated to the Participant’s
Non-Qualified Matching Contribution Account as of the earlier of the last day
of the Plan Year for which made or the Valuation Date coincident with or
immediately following the date of contribution.


 


D.                                    Forfeitures.  All Forfeitures from Regular Accounts shall
be allocated first to reinstate previously forfeited account balances under Article V
D 2 below, with any remainder allocated as in the same manner as Profit Sharing
Contributions under Article IV C above.  Forfeitures from Non-Qualified Matching
Contribution Accounts shall be reallocated first to reinstate previously
forfeited account balances under Article V D 2 below, with any remainder
allocated as part of the Employer’s Non-Qualified Matching Contribution for the
Plan Year of Forfeiture in the manner provided in Article IV C above.


 


E.                                      Limitations
on Annual Additions.  This Article IV
E shall take precedence over any contrary provisions of the Plan.


 


1.                                       For
purposes of this Article IV E, the following definitions shall apply:


 


a.                                       Annual
Addition.  The sum of the following
amounts allocated on behalf of a Participant for a Limitation Year:


 


(1)                                  all
Employer contributions;


 


(2)                                  all
Salary Reduction Contributions (including Excess Elective Deferrals and Excess
Contributions);


 


(3)                                  all
Forfeitures;


 


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


 


(5)                                  all
amounts derived from contributions paid or accrued, which are attributable to
post-retirement medical benefits allocated to the separate account of a Key
Employee, as defined in Section 419A(d)(3) of the Code, under a
welfare benefit fund, as defined in Section 419(e) of the Code,
maintained by the Employer.


 


(b)                                 Compensation.  Section 415 total earnings which is
actually paid or made available to a Participant within the Limitation
Year.  For Limitation Years beginning
after 1997, Compensation 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 is excludable from the
Employee’s gross income under Code Section 125 or 457.


 


22





















 


(c)                                  Defined
Benefit Fraction.   A fraction, the
numerator of which is the sum of the Participant’s projected annual benefits
under all of the defined benefit plans (whether or not terminated) maintained
by the Employer, and the denominator of which is the lesser of one hundred
twenty-five percent (125%) (or one hundred percent (100%) for any Limitation
Year in which the Plan is a Top-Heavy Plan and the exceptions under Code Section 416(b)(2) or
(3) are not applicable) of the dollar limitation determined for the
Limitation Year under Sections 415(b) and (d) of the Code, or one
hundred forty percent (140%) of the highest average compensation, including any
adjustments under Section 415(b) of the Code.


 


Notwithstanding the above, if the Participant was a Participant as of
the first day of the first Limitation Year beginning after 1986 in one or more
defined benefit plans maintained by the Employer which were in existence on May 5,
1986, the denominator of this fraction will not be less than one hundred
twenty-five percent (125%) of the sum of the annual benefits under such plans
which the Participant had accrued as of the end of the last Limitation Year
beginning before January 1, 1987, disregarding any changes in the terms
and conditions of the Plan after May 5, 1986.  The preceding sentence applies only if the
defined benefit plans individually and in the aggregate satisfied the
requirements of Section 415 as in effect for all Limitation Years
beginning before January 1, 1987.


 


(d)                                 Defined
Contribution Dollar Limitation. $30,000 as adjusted under Section 415(d) of
the Code.


 


(e)                                  Defined
Contribution Fraction.  A fraction,
the numerator of which is the sum of the Annual Additions to the Participant’s
accounts under all the defined contribution plans (whether or not terminated)
maintained by the Employer for the current and all prior Limitation Years
(including the Annual Additions attributable to the Participant’s nondeductible
voluntary contributions to all defined benefit plans, whether or not
terminated, maintained by the Employer, and the Annual Additions attributable
to all welfare benefit funds or individual medical accounts, as defined in
Sections 419(e) and 415(e)(2) of the Code), and the denominator of
which is the sum of the maximum aggregate amounts for the current and all prior
Limitation Years with the Employer (regardless of whether a defined
contribution plan was maintained by the Employer).  The maximum aggregate amount in any
Limitation Year is the lesser of one hundred twenty-five percent (125%) (or one
hundred percent (100%) for any Limitation Year in which the Plan is a Top-Heavy
Plan and the exceptions under Code Section 416(h)(2) or (3) are
not applicable) of the dollar limitation in effect under Section 415(c)(1)(A) of
the Code or thirty-five percent (35%) of the Participant’s Compensation for
such year.


 


If the Employee was a Participant as of the end of the first day of the
first Limitation Year beginning after December 31, 1986, in one or more
defined contribution plans maintained by the Employer which were in existence
on May 6, 1986, the numerator of this fraction will be adjusted if the sum
of this fraction and the defined benefit fraction would otherwise exceed 1.0
under the terms of this Plan.  Under the
adjustment, an amount equal to the product of (i) the excess of the sum of
the fraction over 1.0 times (ii) the denominator of this fraction, will be



 


23





















 


permanently subtracted from the numerator of this fraction.  The adjustment is calculated using the
fractions as they would be computed as of the end of the last Limitation Year
beginning before January 1, 1987. 
This adjustment also will be made disregarding any changes in the terms
and conditions of the Plan made after May 5, 1986, but using the Section 415
limitation applicable to the first Limitation Year beginning on or after January 1,
1987.  The Annual Addition for any
Limitation Year beginning before January 1, 1987, shall not be recomputed
to treat all Employee contributions as Annual Additions.


 


(f)                                    Employer.  The Employer that adopts this Plan.  In the case of a group of employers which
constitutes (i) a controlled group of corporations (as defined in Section 414(b) of
the Code, as modified by Section 415(h)), (ii) a trade or business
(whether or not incorporated) under common control (as defined in Section 414(c) and
modified by Section 415 (h)), (iii) an affiliated service group (as
defined in Section 414(m)), or (iv) any other entity required to be
aggregated with the Employer pursuant to Section 414(o) of the Code, all
such employers shall be considered a single employer for purposes of applying
the limitations of this Article.


 


(g)                                 Excess
Amount.  The excess of the Participant’s
Annual Additions for the Limitation Year over the Maximum Permissible Amount.


 


(h)                                 Limitation
Year.  The calendar year.  All qualified plans maintained by the
Employer must use the same Limitation Year. 
If the Limitation Year is amended to a different twelve (12) month
period, the new Limitation Year must begin on a date within the Limitation Year
in which the amendment is made.


 


(i)                                     Maximum
Permissible Amount.  For any
Limitation Year, the maximum Annual Addition that can be allocated or
contributed to a Participant’s Accounts shall not exceed the lesser of:  (i) the Defined Contribution Dollar
Limitation for the Limitation Year; or (ii) 25% of the Participant’s
Compensation for the Limitation Year.  If
a short Limitation Year is created because of an amendment changing the
Limitation Year to a different twelve (12) consecutive month period, the
Maximum Permissible Amount shall not exceed the Defined Contribution Dollar
Limitation multiplied by the following fraction:


 


Number of months in the short Limitation Year


12


 


(j)                                     Projected
Annual Benefit.  The annual
retirement benefit (adjusted to an actuarially equivalent straight life annuity
if the benefit is expressed in a form other than a straight life annuity or
qualified joint and survivor annuity) to which the Participant would be
entitled under the terms of the plan in question assuming:


 


(1)                                  the
Participant will continue employment until normal retirement age under the plan
(or current age, if later), and


 


24





















 


(2)                                  the
Participant’s compensation for the current limitation year and all other
relevant factors used to determine benefits under the plan will remain constant
for all future limitation years.


 


2.                                       Limitation
For Participants Not Participating In Any Other Qualified Plan of Employer.


 


(a)                                  If
the Participant has never participated in another qualified plan or welfare
benefit fund (as defined in Section 419(e) of the Code) maintained by
the Employer or an individual medical account (as defined in Section 415(l)(2) of
the Code) maintained by the Employer which provides an Annual Addition, the
amount of Annual Additions which may be credited to the Participant’s accounts
for any Limitation Year shall not exceed the lesser of the Maximum Permissible
Amount or any other limitation contained in this Plan.  If any Employer contribution that would
otherwise be contributed or allocated to the Participant’s Accounts would cause
the Annual Additions for the Limitation Year to exceed the Maximum Permissible
Amount, the amount contributed or allocated will be reduced so that the Annual
Additions for the Limitation Year will equal the Maximum Permissible Amount.


 


(b)                                 Prior
to the determination of the Participant’s actual Compensation for a Limitation
Year, the Maximum Permissible Amount may be determined on the basis of the
Participant’s estimated annual Compensation for such Limitation Year.  The estimated annual Compensation shall be
determined on a reasonable basis and shall be uniformly determined for all
Participants similarly situated.


 


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


 


(c)                                  If,
pursuant to Article IV E 2(c) above, or as a result of the allocation
of Forfeitures, there is determined to be an Excess Amount with respect to a
Participant for a Limitation Year, the Excess Amount shall be disposed of in
the following order:


 


(1)                                  Any
Salary Reduction Contributions (plus income or gain allocable thereto) shall be
returned to the Participant to the extent that the return would reduce the
Excess Amount.


 


(2)                                  If
the Participant is an active participant in the Plan at the end of the
Limitation Year, any remaining Excess Amount shall be held in suspense and used
to reduce Employer contributions for the Participant in the next Limitation
Year, and in each succeeding Limitation Year if necessary so long as the
Participant remains an active participant; and


 


25





















 


(3)                                  If
the Participant is not covered by the Plan at the end of the Limitation Year or
any succeeding Limitation Year in which an Excess Amount remains, the remaining
Excess Amount shall be held unallocated in an Excess Contribution Account.  The Excess Contribution Account shall be
applied to reduce future Employer contributions for all remaining Participants
in the next Limitation Year, and each succeeding Limitation Year if
necessary.  If an Excess Contribution
Account is in existence at any time during a Limitation Year pursuant to this
provision, it shall not participate in the allocation of the Trust’s investment
gains and losses, and all amounts in the Suspense Account must be allocable or
reallocated (if possible) to Participant accounts before any contributions for
that Limitation Year.  Excess Amounts may
not be distributed to Participants or former Participants.


 


3.                                       Limitation
for Participants Participating In Any Other Qualified Defined Contribution
Plans of Employer.


 


(a)                                  This
section applies if, in addition to this Plan, the Participant is covered
under another defined contribution plan, welfare benefit fund (as defined in Section 419(e) of
the Code), or individual medical account (as defined in Section 415(1)(2) of
the Code), which provides an Annual Addition, maintained by the Employer during
any Limitation Year.  The Annual
Additions which may be credited to a Member’s Accounts under this Plan for any
such Limitation Year shall not exceed the Maximum Permissible Amount reduced by
the Annual Additions credited to a Participant’s Accounts under the other plans
and welfare benefit funds for the same Limitation Year.  If the Annual Additions with respect to the
Participant under such other defined contribution plans and welfare benefit
funds 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 Accounts under this Plan would cause the Annual Additions
for the Limitation Year to exceed this limitation, the amount contributed or
allocated hereunder shall 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 the other defined contribution plans and
welfare benefit funds in the aggregate are equal to or greater than the Maximum
Permissible Amount, no amount shall be contributed or allocated to the
Participant’s Account under this Plan for the Limitation Year.


 


(b)                                 Prior
to the determination of the Participant’s actual Compensation for the
Limitation Year, the amounts referred to in Article IV E 3(a) above
may be determined on the basis of the Participant’s estimated annual
Compensation for such Limitation Year. 
Such estimated annual Compensation shall be determined on a reasonable
basis and shall be uniformly determined for all Participant’s similarly
situated.


 


(c)                                  As
soon as is administratively feasible after the end of the Limitation Year, the
amounts referred to in Article IV E 3(a) above shall be determined on
the basis of the Participant’s actual Compensation for such Limitation Year.


 


26





















 


(d)                                 If
a Participant’s Annual Additions under this Plan and all such other plans
result in an Excess Amount, the Excess Amount shall be deemed to consist of the
Annual Additions last allocated, except that Annual Additions attributable to a
welfare benefit fund or individual medical account shall be deemed to have been
allocated first regardless of the actual allocation date.


 


(e)                                  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 shall be the product of:  (1) the total Excess Amount allocated as
of such date (including any amount which would have been allocated but for the
limitations of Section 415 of the Code), times (2) the ratio of the
Annual Additions allocated to the Participant as of such date under this Plan,
to the total Annual Additions allocated as of such date under all qualified
master or prototype defined contribution plans (determined without regard to
the limitations of Section 415 of the Code).


 


(f)                                    Any
Excess Amounts attributed to this Plan under this paragraph shall be disposed
of as provided in Article IV E 2(d) above.


 


4.                                       Limitation
for Employers with Qualified Defined Benefit Plans.  For Plan Years commencing prior to January 1,
2000 if the Employer maintains, or at any time maintained, a qualified defined
benefit plan which covered or covers any Participant of this Plan, the sum of
the Participant’s Defined Benefit Plan Fraction and Defined Contribution Plan
Fraction shall not exceed 1.0 in any Limitation Year.  The Annual Additions which may be credited to
the Participant’s Accounts under this Plan for any Limitation Year shall be
limited so as to prevent the sum of the Participant’s Defined Benefit Plan
fraction and Defined Contribution Plan fraction from exceeding 1.0 in any
Limitation Year prior to 2000.


 


F.                                      Statements.  As soon as practical after each quarter, the
Administrator shall prepare and furnish to each Participant a statement of the
amount of his Accrued Benefit on the Valuation Date showing the amounts
allocated under Articles IV B, IV C and IV D above and the amount of the
Employer contributions.  In the event of
any limitation on the amount of the allocation of Employer contributions under
the provisions of this Article, the statement shall set forth a computation
thereof.


 


ARTICLE V


VESTED BENEFITS


 


A.                                   Retirement.


 


A Participant may retire on his Normal Retirement Date.  If a Participant’s employment is continued beyond
his Normal Retirement Date, he shall continue to be a Participant of the Plan
until the date of his termination of active participation.  As of any Valuation Date 


 


27





















 


coincident with or following a Participant’s Normal Retirement Date, a
Participant who Separates from Service on or after his Normal Retirement Date
shall be considered to have retired and shall have a non-forfeitable right to
his entire Accrued Benefit as adjusted from time to time under Article IV.


 


B.                                     Disability.


 


1.                                       If
the Administrator determines that a Participant has Separated from Service
after incurring a Permanent Disability, the Participant shall have a
non-forfeitable right to his entire Accrued Benefit as adjusted from time to time
under Article IV.


 


2.                                       At
any time after the commencement of disability of a Participant to meet the
requirements of his normal employment, either the Participant or Employer may
make application to the Administrator for a determination as to whether the
disability is permanent.  Permanent
Disability shall mean the physical or mental inability of a Participant to
continue to meet the requirements of his normal employment or other suitable
employment with Employer, which condition, in the opinion of a physician who
shall be promptly selected by the Administrator (which opinion shall be
conclusive for the purposes of the Plan), will be continuous for a period of at
least twelve (12) months following the onset of permanent disability.


 


C.                                     Death.


 


Upon the death of a Participant prior to his Separation from Service,
the Participant shall have a non-forfeitable right to his Accrued Benefit as
adjusted from time to time under Article IV.


 


D.                                    Other
Separations From Service.


 


3.                                       Except
for those cases in which death or permanent disability occurs before Separation
of Service or in which the Participant retires under Article V A above, in
the event of a Separation from Service of a Participant, the Participant shall
have a non-forfeitable right to the entire Accrued Benefit of his Elective
Deferral Account and Transfer Account, as adjusted from time to time under Article IV,
and that percentage of the Accrued Benefit of his Regular Account and
Non-Qualified Matching Contribution Account, if any, as adjusted from time to
time under Article IV, determined on the basis of his or her Years of
Service in accordance with the following vesting schedule:


 


	
  Years
  of Service

  	
   

  	
  Vested Percentage

  	
   

  	
  Non-Vested Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Less than 1

  	
   

  	
   

  	
  0

  	
  %

  	
  100

  	
  %

  
	
  1

  	
   

  	
   

  	
  20

  	
  %

  	
  80

  	
  %

  
	
  2

  	
   

  	
   

  	
  40

  	
  %

  	
  60

  	
  %

  
	
  3

  	
   

  	
   

  	
  60

  	
  %

  	
  40

  	
  %

  
	
  4

  	
   

  	
   

  	
  80

  	
  %

  	
  20

  	
  %

  
	
  5 or more

  	
   

  	
   

  	
  100

  	
  %

  	
  0

  	
  %

  



 


28





















 


4.                                       The
portion of the Accrued Benefit of a Participant’s Regular Account and
Non-Qualified Matching Contribution Account which is not included in the Vested
Benefit of a Participant on a Separation from Service under Article V D 1
above shall be forfeited.  Forfeiture of
amounts not previously forfeited in Plan Years commencing prior to the
Effective Date shall occur upon the earlier of: 
(a) the last day of the Plan Year in which the Participant receives
(or is deemed to have received) a distribution of his Vested Benefit; or (b) the
date the Participant has incurred five (5) consecutive one (1) year
Breaks in Service.  For purposes of this Article V
D 2, a Participant whose Vested Benefit is zero (0) shall be deemed to have
received a distribution of his Account balances as of the end of the Plan Year
following the Plan Year in which his termination of active participation
occurs.  If a former Participant whose
entire Vested Benefit was previously distributed or deemed distributed, is
re-employed before he has incurred five (5) consecutive one (1) year
Breaks in Service, the previously forfeited amount of the former Participant’s
Accounts shall be restored if the former Participant repays to the Plan any
amount previously distributed to him from his Regular Account and Non-Qualified
Matching Contribution Account prior to the earlier of (a) incurring five (5) consecutive
one (1) year Breaks in Service, or (b) five (5) years after the
first date on which the Participant is subsequently reemployed.


 


5.                                       Restoration
shall occur as of the date of repayment. 
If the Participant was deemed to have received a distribution of his
Account Balance, no repayment shall be required for restoration upon return to
employment, and restoration shall occur as of the date of re-employment.  The restored Accounts shall not reflect any
investment income, gains or losses of or other adjustments to the Non-Self
Directed Fund which would have been allocated to the Accounts had there been no
Forfeiture.  Restoration by the Employer
of the forfeited portion of the Accounts shall be made pursuant to a special
allocation to the re-employed Participant’s Accounts of Forfeitures occurring
during the Plan Year of re-employment, with the special allocation of
Forfeitures to be made prior to any allocation of Forfeitures under the usual
allocation provisions of the Plan.  If
the amount of specially allocated Forfeitures is insufficient to restore fully
the forfeited portion of the reemployed Participant’s Accounts, the Employer,
in its sole discretion, shall either (a) contribute to the Plan and make a
special allocation to the re-employed Participant’s Accounts of such additional
amounts as are necessary to eliminate the deficiency, or (b) make a
special allocation of the investment income and gains of the Non-Self Directed
Fund to the re-employed Participant’s Accounts prior to the usual allocation of
income and gains, so as to eliminate the deficiency.


 


6.                                       If
a distribution is made to a Participant when the Participant has a
nonforfeitable right to less than all of the Accrued Benefit, then a separate
account will be established for the participant’s interest in the plan as of
the time of the distribution, and at any relevant time the Participants
nonforfeitable portion of the separate account will be equal to an amount (“X”)
determined by the formula:


 


29





















 


X=P(AB + (R x D)) - (R x D)


 


For purposes of applying the formula: 
P is the nonforfeitable percentage at the relevant time, AB is the
account balance at the relevant time, D is the amount of the distribution, and
R is the ratio of the account balance at the relevant time to the account balance
after distribution.


 


E.                                      Computation
of Years of Service.


 


1.                                       The
Plan Year shall be the vesting computation period used to measure completion of
Years of Service.  If an Employer changes
its Plan Year, an Employee who completes at least one thousand (1,000) Hours of
Service in both (a) the vesting computation period under the Plan before
the amendment, which period began before the first vesting computation period
after the amendment, and (b) the first twelve (12) month Plan Year
resulting from the amendment, shall be credited with two (2) Years of
Service for vesting purposes.


 


2.                                       For
purposes of determining the Vested Benefit of a Participant, all Years of
Service shall be included, except that in the case of a Participant who has
five (5) or more consecutive one (1) year Breaks in Service, all
Years of Service after the period of consecutive Breaks in Service shall be
disregarded for the purposes of determining the Participant’s vesting in his
Accounts that accrued before the consecutive Breaks in Service.  The Participant’s pre-Break in Service Years
of Service shall be taken into account in determining his vesting in his
post-Break in Service Account balances.


 


30





















 


ARTICLE VI


DISTRIBUTION OF BENEFITS


 


A.                                   Segregation
or Distribution of Accounts.


 


1.                                       Upon
termination of active participation of a Participant, the Administrator shall
notify the Trustee and the Participant or his Beneficiary within one hundred
fifty (150) days after the last day of the Plan Year in which termination of
active participation occurs, as to the amount of the former Participant’s
Vested Benefit, if any, and the method of distribution for any Vested
Benefit.  Within thirty (30) days after
notification, the Trustee shall distribute any amount of Vested Benefit
directed by the Administrator and shall either hold the Participant’s remaining
Vested Benefit in the Non-Self Directed Fund or the Individual Investment Fund,
as applicable, or, if so directed by the Administrator, segregate any remaining
Vested Benefit and hold and invest that amount as a Segregated Account separate
from the Non-Self Directed Fund.  In any
event, however, the periods specified in the two (2) preceding sentences
of this Article VI A 1 shall be reduced in the case of a Participant’s
retirement on or after the Participant’s Normal Retirement Date to the extent
necessary so that the payment of his benefits will commence not later than the
sixtieth (60th) day following the close of the Plan Year in which normal
retirement occurs, unless payment is deferred in accordance with the Plan.  There shall be no adjustment to the amount of
Vested Benefit attributable to the Non-Self Directed Fund for any income,
expense, gain or loss allocable thereto and no liability for any income or gain
thereon with respect to that period between the last preceding Valuation Date
(including any special Valuation Date) and the date of distribution or
segregation.


 


2.                                       Notwithstanding
anything to the contrary in Article VI A 1 above, if the Administrator, in
its sole discretion, shall determine that it is in the best interest of the
former Participant or of the other accounts held in the Non-Self Directed Fund,
a former Participant’s Vested Benefit or a portion thereof, shall be held in a
segregated Account until fully distributed.


 


3.                                       The
Trustee may commingle the Segregated Accounts of former Participants and invest
and administer them as one or more units. 
The Segregated Fund shall be invested by Trustee in bonds, notes, money
market mutual funds, time deposit accounts or other evidences of indebtedness
which Trustee, in its discretion, shall select primarily on the basis of
protection from a decline in principal value.


 


B.                                     Method
of Distribution.


 


1.                                       Distribution
of the Vested Benefit of a former Participant’s Accounts and the income thereon
to a former Participant or his Beneficiary shall be made by the Trustee in
accordance with directions which shall be given by the Administrator.


 


2.                                       Subject
to Article VII below, distribution shall be made in the form of a lump sum
cash payment of the Participant’s entire Accrued Benefit; provided, however,
that at the


 


31





















 


Participant’s written election, any whole
shares of Employer stock allocated to his Accounts may be distributed in kind
(with the value of any fractional shares distributed in cash).


 


C.                                     Commencement
and Amount(s) of Distribution.


 


1.                                       (a)                                  Subject
to Article VII and Article VI C 2 through 4 below, in the case of
retirement, Permanent Disability or death of a Participant, the payment of his
Vested Benefit shall begin not later than the sixtieth (60th) day following the
close of the Plan Year in which Normal Retirement occurs, or the one hundred
eightieth (180th) day following the close of the Plan Year in which death,
Permanent Disability or Early Retirement occurs unless the Participant or
Beneficiary elects to defer the commencement of benefits to a date no later
than is permitted under the other provisions of the Plan requiring
commencement.


 


(b)                                 Subject
to Article VII and Article VI C 2 through 4 below, in the case of a
termination of active participation for any reason other than retirement,
Permanent Disability or death, the payment of a Participant’s Vested Benefit
shall begin not later than one hundred eighty (180) days after the end of the
Plan Year in which termination of active participation occurs.


 


1.                                       Except
in the case of a Participant described in Article VI C 1(a) above who
elects otherwise, in no event will distribution commence later than the
sixtieth (60th) day after the last occurring of the following:


 


(1)                                  the
close of the Plan Year in which the Participant reaches his Normal Retirement
Date;


 


(2)                                  the
close of the Plan Year in which the termination of service occurs; or


 


(3)                                  the
close of the Plan Year in which occurs the tenth (10th) anniversary of the Plan
Year in which the Employee became a Participant.


 


2.                                       This
Article VI C 3 shall apply to all distributions and, subject to Article VII,
shall take precedence over any contrary plan provision.


 


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


 


(b)                                 The
entire benefit of a Participant must be distributed in a lump sum no later than
the Participant’s Required Beginning Date.


 


32





















 


(c)                                  Upon
the death of the Participant prior to distribution of his entire Benefit, the
Participant’s Benefit shall be distributed to his Beneficiaries in a lump sum
as soon as practicable after the Beneficiaries elect to receive distribution
but in no event later than December 31st of the calendar year containing
the fifth (5th) anniversary of the Participant’s death.


 


(d)                                 For
purposes of this Article VI C 3, the following definitions shall apply:


 


(2)                                  Beneficiary.  The individual  (or entity) who is designated as the
Beneficiary under the Plan in accordance with Section 401(a)(9) of
the Code and the Regulations thereunder.


 


(2)                                  Participant’s
Benefit.


 


(i)                                     The
Participant’s entire Vested Benefit as of the last Valuation Date immediately
preceding the date of distribution.


 


(3)                                  Required
Beginning Date.


 


(i)                                     The
Required Beginning Date of a Participant other than a five percent (5%) owner
is the first day of April of the calendar year following the later of the
calendar year in which the Participant attains age seventy and one-half (701⁄2)
or the calendar year in which the Participant retires.


 


(ii)                                  The
Required Beginning Date of a Participant who is a five percent (5%) owner is
the first day of April following the calendar year in which the
Participant attains age seventy and one-half (701⁄2);


 


(iii)                               A
Participant is treated as a five percent (5%) owner for purposes of this Article VI
C 3 if the Participant is a five percent (5%) owner as defined in Section 416(i) of
the Code (determined in accordance with Section 416 but without regard to
whether the Plan is top-heavy) at any time during the Plan Year ending with or
within the calendar year in which the Participant attains age sixty-six and
one-half (661⁄2) or any subsequent Plan Year.


 


4.                                       (a)                                  If
the present value of a Participant’s Vested Benefit exceeds the Applicable
Amount, and the Vested Benefit is “immediately distributable” to the
Participant, the Participant must consent to any distribution of his Vested
Benefit.  Additionally, if the present
value of the Participant’s Accounts to which Article VII applies (an “Article VII
Account”) exceeds the Applicable Amount, and the Account is “immediately
distributable”, the Participant’s spouse, if any, must consent to any
distribution of that Article VII Account. 
A Vested Benefit or Article VII Account is “immediately
distributable” if any part of the Vested Benefit or Account could be
distributed to the Participant before the Participant attains (or would have
attained, if not deceased) 


 


33





















 


age sixty-two (62).  If a Participant whose immediately
distributable Vested Benefit or Article VII Account exceeds the Applicable
Amount does not consent to a distribution of his Vested Benefit in the Plan
Year following termination of his active participation or, where applicable,
his spouse does not consent to a distribution of an Article VII Account,
distribution of his Vested Benefit (or the Article VII Account, as
applicable) shall be deferred until the 60th day of the Plan Year following the
first Plan Year in which the Vested Benefit (or Article VII Account, as
applicable) is no longer “immediately distributable” unless the Participant
(with his spouse’s consent, if necessary) consents to distribution in an
earlier year.  Where required, the
consent of the Participant (and, if applicable, his spouse) to commencement of
distribution shall be obtained in writing within the ninety (90) day period
ending on the “annuity starting date.” 
The “annuity starting date” is the first day of the first period for
which an amount is paid in any form.  The
Plan Administrator shall notify the Participant (and, if applicable, his
spouse) of the right to defer any distribution until the Participant’s Vested
Benefit is no longer “immediately distributable.”  The notice shall include a general
description of the material features, and an explanation of the relative values
of, the optional forms of benefit available under the Plan in a manner that
would satisfy the notice requirements of Section 417(a)(3) of the
Code, and shall be provided no less than thirty (30) days and no more than
ninety (90) days prior to the annuity starting date.  The Participant shall have at least thirty
(30) days from the date of the notice to elect or reject an immediate distribution,
but may waive the thirty (30) day waiting period unless the distribution is
subject to Article VII below.


 


(a)                                  Notwithstanding
the foregoing, only the Participant need consent to the commencement of
distribution in the form of a Qualified Annuity while the Participant’s Vested
Benefit is immediately distributable. 
The consent of the Participant (and, if applicable, his spouse) shall
not be required to the extent that a distribution is required to satisfy Section 401(a)(9) or
Section 415 of the Code.  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 as the Employer does not maintain
another defined contribution plan (other than an employee stock ownership plan
as defined in Section 4975(e)(7) of the Code), the Participant’s
Vested Benefit may, without the Participant’s consent, be distributed to the
Participant.  However, if any entity
within the same controlled group as the Employer maintains another defined
contribution plan (other than an employee stock ownership plan as defined in Section 4975(e)(7) of
the Code) then the Participant’s Vested Benefit will be transferred, without
the Participant’s consent, to the other plan if the Participant does not
consent to an immediate distribution.


 


D.                                    Hardship
Distributions.


 


1.                                       Distribution
of a Participant’s Salary Reduction Contributions (and income accrued thereon,
limited as of December 31, 1988) may be made to a Participant in the event
of “Hardship.”  A Participant’s request
for a Hardship distribution shall be made on such forms as the Administrator
may require.  The decision to make, and
the amount of, any Hardship distribution shall be determined by the
Administrator in its sole discretion.


 


34





















 


2.                                       For
the purposes of this Article VI D, Hardship is defined as an immediate and
heavy financial need of the Participant where distribution is necessary to
satisfy the need. On a uniform and non-discriminatory basis, the Administrator
shall have the discretion to limit the financial needs that may be considered
immediate and heavy for purposes of the Hardship distribution rules to:  (a) deductible medical expenses (within
the meaning of Section 213(d) of the Code) of the Participant, the
Participant’s spouse, children, or dependents; (b) the purchase (excluding
mortgage payments) of a principal residence for the Participant; (c) payment
of tuition for the next quarter or semester of post-secondary education for the
Participant, the Participant’s spouse, children or dependents; or (d) the
need to prevent the eviction of the Participant from, or a foreclosure on the
mortgage of, the Participant’s principal residence.


 


3.                                       The
following are the only circumstances in which a distribution will be considered
as necessary to satisfy an immediate and heavy financial need of the
Participant:


 


(a)                                  The
Participant has obtained all distributions, other than Hardship distributions,
and all nontaxable loans under all plans maintained by the Employer;


 


(b)                                 All
plans maintained by the Employer provide that the Participant’s elective
deferrals (and other employee contributions) will be suspended for twelve (12)
months after the receipt of the Hardship distribution;


 


(c)                                  The
distribution is not in excess of the amount of the Participant’s immediate and
heavy financial need; and


 


(d)                                 All
plans maintained by the Employer provide that the Participant may not make
elective deferrals for the calendar year immediately following the calendar
year of the Hardship distribution in excess of the applicable limit under Section 402(g) of
the Code for such subsequent year less the amount of such Participant’s
elective deferrals for the year of the Hardship distribution.


 


E.                                      Spousal
Survivors Benefit and Beneficiary Designation.


 


1.                                       (a)                                  Anything
in this Article VI to the contrary notwithstanding, a mandatory survivor
benefit shall apply to every Participant or former Participant.


 


(b)                                 Upon
the death of a married Participant or former Participant covered by the
mandatory spousal survivor benefit, his entire Vested Benefit (excluding the
amount of any outstanding loans secured by the Participant’s Accrued Benefit)
under the Plan shall be paid within a reasonable time to his surviving spouse
(subject to the spousal Beneficiary’s right to defer distribution as provided
in Article VI C 1), and adjusted for gains and losses in the same manner
as other Account balances are adjusted pending distribution.  If, however, there is no surviving spouse or
if the Participant waives the mandatory survivor benefit and the surviving
spouse consented in the 


 


35





















 


manner set forth in Article VII B for a
Qualified Election (other than the notice requirements therefor) to the designation
of another Beneficiary by the Participant, the Accrued Benefit shall be paid to
the designated Beneficiary pursuant to the distribution provisions of the Plan
which would apply in the absence of this subparagraph.


 


2.                                       Any
Beneficiary designation under this Article VI shall be in the form
prescribed by the Administrator and shall be effective only when executed by
the Participant and, if applicable, his spouse, and filed with the
Administrator by the Participant.  A
Participant may, from time to time in like manner, revoke the beneficiary
designation and such action shall not require the consent of any
Beneficiary.  A Participant (with the
consent of his spouse, if applicable) may designate multiple, contingent or
successive beneficiaries, and specify the proportionate distribution to each
Beneficiary.


 


3.                                       In
the absence of an effective Beneficiary designation, the Administrator shall
direct the Trustee to distribute the Participant’s undistributed Vested
Benefits to the Participant’s surviving spouse, if any, or, if there is no
surviving spouse, then to the estate of the Participant.


 


4.                                       If
the Beneficiary shall survive the Participant, but shall die before the entire
Vested Benefit of the former Participant has been paid, then, absent any other
provision by the Participant, the unpaid amount shall be payable to the estate
of the deceased Beneficiary.


 


5.                                       If
multiple Beneficiaries are designated, absent express provision by the
Participant, those named or the survivors of them, shall share equally any
benefits payable under this Plan.


 


F.                                      Portability.  Anything in this Article to the contrary
notwithstanding, a Distributee may elect at the time and in the manner
prescribed by the Plan Administrator to have all or any portion of his Eligible
Rollover Distribution paid directly to an Eligible Retirement Plan specified by
the Distributee in a Direct Rollover.


 


G.                                     Missing
Participants and Beneficiaries.  If
the Accrued Benefit payable to any Participant or Beneficiary remains unpaid
solely due to the Plan Administrator’s inability to locate the distributee
after diligent efforts to ascertain his or her whereabouts, the amount so
distributable shall be treated as a Forfeiture and reallocated in accordance
with the provisions of the Plan dealing with Forfeitures of Non-Qualified
Matching Contributions.  If the
distributee is later located, such benefit plus the earnings that would have
accrued thereon shall be restored.


 


36





















 


ARTICLE VII


ANNUITY PROVISIONS


 


A.                                   Application.


 


This Article shall only apply to the Transfer Account of a
Participant in cases in which the Plan is a direct or indirect transferee of a
plan to which the survivor annuity requirements of Sections 401(a)(11)(A) and
417 of the Code apply.  This Article shall
take precedence over any conflicting provision in this Plan.


 


B.                                     Definitions.


 


For purposes of this Article, the following definitions shall apply:


 


1.                                       Annuity
Starting Date.  The first date on
which an amount is distributed as an annuity or in any other form.


 


2.                                       Election
Period.  The period which begins on
the first day of the Plan Year in which the Participant attains age thirty-five
(35) and ends on the date of the Participant’s death.  If a Participant Separates from Service prior
to the first day of the Plan Year in which age thirty-five (35) is attained,
the Election Period shall begin on the date of Separation from Service with
respect to the Account balances as of the date of separation.


 


1.                                       Earliest
Retirement Age.  The earliest date on
which, under the Plan, the Participant could elect to receive retirement
benefits.


 


2.                                       Pre
Age Thirty-Five (35) Waiver.  A
Participant who will not attain age thirty-five (35) as of the end of any
current Plan Year may make a special Qualified Election to waive the Qualified
Pre-Retirement Survivor Annuity for the period beginning on the date of such
election and ending on the first day of the Plan Year in which the Participant
will attain age thirty-five (35).  The
Administrator shall provide to the Participant a written explanation of the
Qualified Pre-Retirement Survivor Annuity in such terms as are comparable to
the explanation required under Article VII E below.  Qualified Pre-Retirement Survivor Annuity
coverage shall be reinstated as of the first day of the Plan Year in which the
Participant attains age thirty-five (35), and any new waiver thereafter shall
be subject to the full requirements of this Article.


 


3.                                       Qualified
Election.  A waiver of a Qualified
Annuity or a Qualified Pre-Retirement Survivor Annuity by a married Participant
(or, if deceased, by his spouse).  Any
waiver of a Qualified Annuity or a Qualified Pre-Retirement Survivor Annuity by
a married Participant or spouse shall not be effective unless:  (a) the Spouse consents in writing to
the election; (b) the election designates a specific beneficiary,
including any class of beneficiaries or any contingent beneficiaries, which may
not be changed without spousal consent (or the Spouse expressly permits
designations by the Participant without any further spousal consent); (c) the
Spouse’s consent acknowledges the effect of the election; and (d) the
Spouse’s consent is witnessed by a Plan representative or notary public.  Additionally, a Participant’s waiver of the
Qualified Annuity shall not be effective unless the election designates a form
of benefit payment which may not be changed without spousal consent (or the
Spouse expressly permits designations by the Participant without any 


 


37





















 


further spousal consent).  If it is established to the satisfaction of a
Plan representative that there is no Spouse or that the Spouse cannot be
located, the Participant’s waiver will be deemed a Qualified Election.


 


Any consent by a Spouse obtained under this provision (or establishment
that the consent of a Spouse may not be obtained) shall be irrevocable by that
Spouse but shall be effective only with respect to that Spouse.  A consent that permits designations by the
Participant without any requirement of further consent by the Spouse must
acknowledge that the Spouse has the right to limit consent to a specific
beneficiary, and a specific form of benefit where applicable, and that the
Spouse voluntarily elects to relinquish either or both of these rights.  A revocation of a prior waiver may be made by
a Participant without the consent of the Spouse at any time before the
commencement of benefits.  The number of
revocations shall not be limited.


 


4.                                       Qualified
Annuity.  In the case of an unmarried
Participant, an immediate  life
annuity.  In the case of a married
Participant, an immediate annuity for the life of the Participant with a
survivor annuity for the life of the Participant’s Spouse which is fifty
percent (50%) of the amount of the annuity payable during the joint lives of
the Participant and the Spouse and which is the amount of benefit which can be
purchased with the Participant’s Vested Benefit.


 


5.                                       Qualified
Pre-Retirement Survivor Annuity.  An
annuity for life of a Participant’s Surviving Spouse, the payments under which
are equal to the amount of benefits that can be purchased with fifty percent
(50%) of the Participant’s Vested Benefit as of the last day of the Plan Year
in which occurs the Participant’s death. 
The amount of the Participant’s employee-derived Account balances
allocated to the Qualified Pre-Retirement Survivor Annuity for the Surviving
Spouse shall be the same proportion as the employee-derived Account balances
bear to the total Accrued Benefit of the Participant.


 


6.                                       Spouse
(Surviving Spouse).  The spouse or
surviving spouse of the Participant, provided that a former spouse will be
treated as the spouse or surviving spouse (and a current spouse will not be
treated as a spouse or former spouse) to the extent provided under a qualified
domestic relations order described in Section 414(p) of the Code.


 


7.                                       Vested
Benefit.  For purposes of this
Article, Vested Benefit shall have the meaning set forth in Article I and
shall include the proceeds of all insurance contracts, except that loans
outstanding on the Annuity Starting Date which are secured by the Participant’s
Accrued Benefit shall be excluded.


 


38





















 


C.                                     Distribution
of Qualified Annuity.


 


Unless an optional form of benefit is selected pursuant to a Qualified
Election within the ninety (90) day period ending on the Annuity Starting Date,
the Vested Benefit of a Participant shall be paid in the form of a Qualified
Annuity pursuant to the purchase of annuity contracts which comply with the
terms of this Plan.  The Participant may
elect to have the annuity contract distributed upon attainment of the Earliest
Retirement Age under the Plan.


 


D.                                    Distribution
of Qualified Pre-Retirement Survivor Annuity.


 


Unless an optional form of benefit has been selected pursuant to a
Qualified Election (made within the Election Period unless the Qualified
Election is by the Surviving Spouse, if a married Participant or married former
Participant covered by this Article dies before the Annuity Starting Date,
then the applicable portion of the Participant’s Vested Benefit shall be
applied toward the purchase of a Qualified Pre-Retirement Survivor Annuity
contract which complies with the terms of this Plan and will provide payments
to the Participant’s Surviving Spouse commencing on the earliest date the
deceased Participant could have elected to receive retirement benefits under
the Plan, unless the Surviving Spouse makes a Qualified Election to waive the
Qualified Pre-Retirement Survivor Annuity or elects to defer distribution as
provided in the Plan.  Any Vested Benefit
remaining after the purchase of such a Qualified Pre-Retirement Survivor
Annuity shall be distributed in accordance with Article VI above.


 


E.                                      Notice
Requirements.


 


8.                                       (a)                                  In
the case of a Qualified Annuity, the Plan Administrator shall, not less than
thirty (30) days and no more than ninety (90) days prior to the Annuity
Starting Date, provide each Participant covered by this Article with a
written explanation of:  (a) the
terms and conditions of a Qualified Annuity; (b) a general description of
the material features, and an explanation of the relative values of the
optional forms of benefit available under the Plan; (c) the Participant’s
right to make and the effect of an election to waive the Qualified Annuity form
of benefit; (d) the rights of a Participant’s Spouse; and (e) the
right to make, and the effect of, a revocation of a previous election to waive
the Qualified Annuity.


 


(b)                                 The
Annuity Starting Date for a distribution in a form other than a Qualified
Annuity may be less than thirty (30) days after receipt of the written
explanation described above if (1) the Participant has been provided with
information that clearly indicates that the Participant has at least thirty
(30) days to consider whether to waive the Qualified Annuity and elect (with
spousal consent, if applicable) to a form of distribution other than a
Qualified 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 seven (7) day period
that begins the day after the explanation of the Qualified Annuity is provided
to the Participant; and (iii) the Annuity Starting Date is a date after
the date that the written explanation is provided to the Participant.


 


39





















 


9.                                       (a)                                  In
the case of a Qualified Pre-Retirement Survivor Annuity, the Plan Administrator
shall provide each Participant covered by this Article within the
applicable period for the Participant a written explanation of the Qualified
Pre-Retirement Survivor Annuity in such terms and in such manner as would be
comparable to the explanation provided for meeting the requirements of Article VII
E 1 above.


 


(b)                                 The
applicable period for the Participant is the last to end of the following
periods:  (1) the period beginning
with the first day of the Plan Year in which the Participant attains age
thirty-two (32) and ending with the close of the Plan Year preceding the Plan
Year in which the Participant attains age thirty-five (35); (2) a
reasonable period after the Participant commences participation; or (3) a
reasonable period after this Article first applies to the
Participant.  Notwithstanding the foregoing,
notice must be provided within a reasonable period after Separation from
Service in the case of a Participant who Separates from Service before
attaining age thirty-five (35).


 


(c)                                  For
purposes of applying Article VII E 2(b) above, a reasonable period ending
after the enumerated events described in subparagraphs (2) and (3) is
the end of the two (2) year period beginning one (1) year prior to
the date the applicable event occurs, and ending one (1) year after that
date.  In the case of a Participant who
separates from service before the Plan Year in which age thirty-five (35) is
attained, notice shall be provided within the two (2) year period
beginning one (1) year prior to separation and ending one (1) year
after separation.  If such a Participant
thereafter returns to employment with the Employer, the applicable period for
the Participant shall be redetermined.


 


F.                                      Cash
Out.  If the present value of a
Participant’s Qualified Annuity or a Qualified Pre-Retirement Survivor Annuity
does not exceed the Applicable Amount at the Annuity Starting Date, the Plan
shall distribute a lump sum equal to the annuity’s present value in lieu of the
annuity without the consent of the Participant or his Spouse.  For this purpose, present value shall be
determined under Section 417(e)(3) of the Code.  Notwithstanding the above, no lump sum
distribution shall be made hereunder once benefits have commenced unless the
Participant and his Spouse (or the Surviving Spouse, if applicable) so consent.


 


ARTICLE VIII


ADMINISTRATION OF THE PLAN


 


A.                                   Plan
Administration.  The Plan shall be
administered by such person or persons as shall be appointed by the Employer as
the Plan Administrator.  If more than one
person is so appointed, the persons shall form an administrative committee for
the Plan.  If no such person is
appointed, the Employer shall serve as the Administrator.


 


40





















 


B.                                     Composition.


 


1.                                       The
person or the committeemen serving as Administrator shall be appointed by the
Employer and shall serve for indefinite terms at the pleasure of the
Employer.  A person or committeeman
serving as the Administrator may be removed by the Employer at any time, with
or without cause, upon giving written notice to the person or other persons who
may be serving, and the Trustee.  A
person or committeeman serving as the Administrator may resign at any time by
giving written notice to the Employer, the Trustee, and if applicable, the
administrative committee.  The Employer
shall promptly fill any vacancy in Participantship of the Administrator by
appointment of a new person or committeeman and shall notify the other persons
in office, if any, and the Trustee of such appointment.  The Trustee may assume that any person
appointed continues in office until notified as above provided of any
change.  In the event of termination of
the Plan, the authority of the Administrator shall continue until complete
distribution of the Trust Fund.  If the
Employer shall fail to fill any vacancy within a reasonable time, the vacancy
may be filled by the remaining persons in office, or, if there are none, then
the Trustee may apply to a court of competent jurisdiction in the city or
county in which the Employer’s principal office is located.


 


2.                                       The
person(s) serving as the Administrator shall not be compensated for their
services, but they shall be reimbursed for any reasonable expenses incurred in
the performance of their duties.


 


3.                                       If
more than one person is serving as Administrator, then decisions of the
Administrator shall be made by the vote of the majority of the persons then in
office.  The Administrator may act at a
meeting or without a meeting if a consent in writing, setting forth the action,
is signed by all of the persons in office.


 


C.                                     Powers
and Duties of the Administrator. 
Subject to the claims review procedures under Article VIII D below,
all interpretations, determinations, actions and decisions of the Administrator
shall be final, conclusive and binding as to all interested parties.  The Administrator shall have responsibility
for and all powers necessary or desirable to carry out the administration of
the Plan and, without limitation on the foregoing, shall have the power and
duty to:


 


1.                                       Adopt
such rules and regulations as it deems desirable for the conduct of its
affairs and the administration of the Plan, provided that all rules,
regulations and decisions of the Administrator shall be uniformly and
consistently applied to all persons in similar circumstances.


 


2.                                       Keep
and maintain permanent records of all of its meetings, proceedings and actions,
Beneficiary designations, Participant elections, and all other records of the
Plan required by the Code and ERISA other than those maintained by the Trustee.


 


3.                                       Comply
with all requirements of the Code and ERISA with respect to notice and
disclosure and the preparation and filing of reports and forms.


 


41





















 


4.                                       Construe
and interpret the Plan and Trust Agreement, and make determinations under the
provisions of the Plan with respect to:


 


(a)                                  eligibility
of Employees to commence participation or continue participation;


 


(b)                                 eligibility
to make or receive allocations of contributions or Forfeitures, and the amounts
thereof;


 


(c)                                  the
amount and vested percentage of the Accrued Benefit of each Participant or
former Participant;


 


(d)                                 the
timing, method and amount of distribution to Participants or their
Beneficiaries, all of which determinations shall be made on the basis of
information of which the Administrator is notified by Employer and Trustee; and


 


(e)                                  all
other matters pertaining to the operation and administration of the Plan.


 


5.                                       Appoint
or employ persons to assist in the administration of the Plan.


 


6.                                       Advise,
counsel and assist any Participant or Beneficiary concerning any right, benefit
or election available under the Plan.


 


7.                                       Request
such variances, deferrals, extensions or exemptions or make such elections for
the Plan as may be permitted by law.


 


8.                                       Make
any equitable adjustments to correct any error or omission discovered in the
administration of the Plan and its accounts.


 


D.                                    Claims.


 


1.                                       Any
Participant or Beneficiary may make claim for a Plan benefit by filing a
written claim with the Administrator at any time prior to or ninety (90) days
after notification of his Vested Benefit.


 


2.                                       The
Administrator shall make the initial determination as to any claim under the
Plan and give the claimant notice thereof within ninety (90) days after receipt
of the claim, unless special circumstances require an extension of time for
processing the claim, not to exceed ninety (90) additional days.  If the Administrator wholly or partially
denies the claim, the notice shall include, in a manner calculated to be
understood by the claimant, the following:


 


42





















 


(a)                                  The
specific reason for the denial;


 


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


 


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


 


(d)                                 Information
as to the steps to be taken if the claimant wishes to submit his or her claim
for review, including the time limits therefor.


 


3.                                       Within
sixty (60) days after notification that the claim is wholly or partially
denied, the claimant may file with the Administrator a written request for
review of the decision.  The
Administrator shall provide the claimant requesting review the opportunity to
review pertinent documents relating to the decision, to submit issues and
comments in writing, and to have a hearing for the purpose of presenting facts
and argument.  Claimant shall be entitled
to have a representative participate in all review proceedings.  Within sixty (60) days after receipt of a
request for review (unless special circumstances require further time for
processing the review, not to exceed sixty (60) additional days), the
Administrator shall make a final determination and give notice to the claimant
of its decision, which shall include specific reasons for the decision, written
in a manner calculated to be understood by the claimant, and specific
references to the pertinent Plan provisions on which the decision is based.


 


4.                                       All
claims and requests shall be made and notice given in the same manner as
provided for notification in Article VIII E below.


 


E.                                      Notification.


 


1.                                       All
notices required or permitted by the Plan shall be in writing and adequate if
given as follows:


 


(a)                                  To
the Employer:  By delivery in person or by
mail addressed to:


 


Merit Medical Systems, Inc.


1600 West Merit Parkway


South Jordan, Utah 84095


 


(b)                                 To
the Trustee:  By delivery in person or by
mail addressed to:


 


Zions Bank


 


43





















 


P.O. Box 30880


Salt Lake City, Utah 84130-0880


 


44





















 


(c)                                  To
the Administrator:  By delivery in person
or by mail addressed to:


 


Organizational Development Dept.


c/o Merit Medical Systems, Inc.


1600 West Merit Parkway


South Jordan, Utah 84095


 


(d)                                 To
Participants, former Participants and Beneficiaries:  By delivery in person or by mail addressed to
the Participant, former Participant, or Beneficiary, at his address as shown on
the records of the Administrator.


 


(e)                                  To
Employees:  By delivery in person, by
prominent posting on a bulletin board customarily used by the Employer for
notices to Employees with regard to labor management relations at work sites of
Participants, or by mail addressed to the Employee at his address as shown on the
records of the Employer.


 


2.                                       The
Employer or the Administrator may change the mailing address to which notice is
to be sent by notice to each other, the Trustee, and all Employees.


 


3.                                       The
Trustee, Participants, former Participants, and Beneficiaries may change the
mailing address to which notice is to be sent by notice to the Employer and the
Administrator.


 


4.                                       Notice
sent by mail shall be by first class mail, with postage prepaid.


 


5.                                       Notice
shall be deemed to be given on the date delivered, posted, or deposited in the
mail.


 


ARTICLE IX


ALLOCATION OF FIDUCIARY RESPONSIBILITIES


 


A.                                   The Administrator is
hereby designated a Named Fiduciary, with fiduciary responsibility for
administration of the Plan.


 


B.                                     The
Trustee is hereby designated as a Named Fiduciary, with fiduciary
responsibility for the control, investment (except as otherwise directed by the
Employer or Administrator), management, and distribution of the Trust
Fund.  The Employer is hereby designated
as a Named Fiduciary with respect to control or management of the assets of the
Plan, to the extent of its power to appoint an Investment Manager and to the
extent it elects to direct the Trustees as to permitted Plan investment
alternatives for self-directing Participants.


 


C.                                     The Chief
Executive Officer of the Employer with responsibility for carrying out the
duties of the Employer under the Plan.


 


45





















 


D.                                    The
Employer reserves the right to change or designate additional Named Fiduciaries
and to allocate and reallocate fiduciary responsibilities by resolution of its
Board of Directors.  Any person may serve
in more than one fiduciary capacity.


 


E.                                      The
Named Fiduciaries, with the written consent of the Employer, may allocate
fiduciary responsibilities among Named Fiduciaries of the Plan; and they may
designate other persons who are not Named Fiduciaries to carry out such
fiduciary responsibilities.


 


F.                                      The
responsibilities imposed by this Plan on each Named Fiduciary are not joint
responsibilities with any other fiduciary. 
No fiduciary shall be responsible for the act, or failure to act, of any
other fiduciary.


 


ARTICLE X


TRUST PROVISIONS


 


A.                                   General
Duties of Employer and Trustee.


 


1.                                       General
Duties of Employer.  The Employer
shall establish and communicate to the Trustee a funding policy and method to
carry out the Plan objectives and otherwise perform the duties imposed upon it
hereunder.  The funding policy shall
consist of the general guidance and standards to be pursued to meet the short
and long term financial needs of the Plan. 
The Employer shall also direct the Trustee as to the investment options
to be offered to Participants who elect to direct the investment of their
Accounts under Article XI.


 


2.                                       General
Duties of Trustee.


 


(a)                                  The
Trustee shall hold the funds and other property from time to time received by
the Trustee, all of which, together with the income therefrom, shall constitute
the Trust Fund; manage, invest and reinvest the Trust Fund pursuant to the
provisions hereinafter set forth; collect the income therefrom which upon
receipt shall be merged into and become a part of the Trust Fund; and make
payments from the Trust Fund as hereinafter provided, pursuant to the
directions of the Administrator.


 


(b)                                 Trustee
shall be responsible only for funds received by Trustee.  Trustee shall have no duty to determine the
correctness of any amount which Employer is to contribute, nor shall Trustee
have any responsibility to enforce the collection of any contribution by
Employer.


 


3.                                       Standard
of Conduct.  The Employer, the
Trustee, and all other fiduciaries under this Trust, shall each discharge their
duties with respect to this Trust and the Plan solely in the interest of the
Participants and their Beneficiaries and


 


46





















 


(a)                                  For
the exclusive purpose of:


 


(1)          providing
benefits to Participants and their Beneficiaries; and


 


(2)          defraying
reasonable expenses of administering the Plan and Trust;


 


(b)                                 With
the care, skill, prudence, and diligence under the circumstances then
prevailing that a prudent man acting in a like capacity and familiar with such
matters would use in the conduct of an enterprise of a like character and with
like aims;


 


(c)                                  By
diversifying the investments of the Trust Fund so as to minimize the risk of
large losses, unless under the circumstances it is clearly prudent not to do
so; and


 


(d)                                 In
accordance with the terms of this Plan and Trust insofar as they are consistent
with Title I of ERISA.


 


B.                                     Powers
of Trustee. 


 


1.                                       Non-Self
Directed and Segregated Funds.  The
assets in the Non-Self  Directed Fund
shall be commingled, invested and administered as a unit.  To the extent that the Administrator
establishes investment funds with different investment objectives, each fund as
created will be commingled, invested, and administered as a unit, although
managed separately in accordance with established objectives.  The assets in the Segregated Fund may be
commingled, invested and administered as a unit.


 


2.                                       Powers
of Trustee.  Subject to Article XI,
the Trustee shall have, with respect to any and all assets at any time held by
Trustee and constituting part of the Trust Fund, powers to do the following:


 


(e)                                  Invest
and reinvest in property, real, personal or mixed, including, but not by way of
limitation, common or preferred stocks, bonds, mutual funds, commercial paper,
loans, notes, debentures, mortgages, certificates of deposit, interest or
participation, common trust funds, deposits which bear a reasonable interest
rate in any bank acting as a fiduciary of the Plan, and other forms of
securities or investments; provided, however, that all assets allocable to
Non-Qualified Matching Contribution Accounts shall be invested in shares of
Employer Stock except to the extent the Employer otherwise directs.


 


(f)                                    Invest
all or any portion of the Fund in a common or collective trust maintained by
the Trustee which is qualified under Section 401(a) and tax exempt
under Section 501(a) of the Code. 
During the period funds are invested in such a collective or common
trust, the 


 


47





















 


declaration of trust or agreement creating
the collective trust shall constitute a part of the Plan and this Trust.  Any investment in a collective trust shall be
subject to all of the provisions of the declaration of trust so incorporated,
as amended or supplemented.  The
collective trust shall be administered to preserve each contributing trust’s
proportionate beneficial interest therein.


 


(g)                                 Sell,
with the Administrator’s consent, at either public or private sale, convey,
transfer, exchange, partition, grant options with respect to, lease for any
term, any asset in such manner, for such consideration, and upon such terms and
conditions, for cash or on credit, as the Trustee shall determine.


 


(h)                                 Consent
to and participate in any plan of reorganization, consolidation, merger,
combination or other similar plan; consent to any contract, lease, mortgage,
purchase, sale or other action by any corporation pursuant to such plan and
accept and retain any property issued under any plan of reorganization.


 


(i)                                     Deposit
any such property with any protective, reorganization or similar committee;
delegate discretionary power thereto and pay and agree to pay part of its
expenses and compensation and any assessments levied with respect to any such
property so deposited.


 


(j)                                     Exercise
all conversion, subscription and other rights and options pertaining to any of
the assets.


 


(k)                                  Collect
and receive any and all money and other assets of whatsoever kind or nature due
or owing or belonging to the Funds; give full discharge and acquittance
therefor; and extend the time of payment of any obligation.


 


(l)                                     Exercise
all voting rights with respect to any investment and in connection therewith grant
proxies, discretionary or otherwise;  provided, however, that voting rights with
respect to shares of Employer Stock held in Individual Investment Accounts
shall be passed through to the Participants whose Accounts hold such assets to
the extent directed by the Employer.


 


(m)                               Cause
any security or other assets to be registered and held in the name of the
Trustee or of one or more of the Trustee’s nominees, or in bearer form, without
increase or decrease of liability with respect to such security or other
property so registered, so long as the records of Trustee indicate the true
ownership of the assets; deposit or cause to be deposited securities in a
clearing corporation established to settle transfers of securities and cause
them to be merged and held in bulk by the nominee of such clearing corporation;
and employ a bank or other appropriate depository to act as custodian of the
assets of the Trust Fund.


 


(n)                                 Settle,
compromise or submit to arbitration any claims, debts or damages due or owing
to or from the Trust; commence or defend suits or legal proceedings 


 


48





















 


whenever any interest of the Trust so
requires; and represent the Trust in all suits or legal proceedings in any
court of law or equity or before any other body or tribunal.


 


(o)                                 Hold
on deposit, without liability for interest thereon, such portion of the Funds
as shall be reasonable under the circumstances pending investment or
disbursement.


 


(p)                                 Borrow
money for the purposes of the Plan or Trust upon such terms as the Trustee
deems advisable from anyone other than a “party in interest” as defined in Section 3(l4)
of ERISA, and for the sum so borrowed, the Trustee may issue a promissory note
as the Trustee and secure the repayment thereof by the pledging of any
securities or assets in the Trustee’s possession as Trustee hereunder;
provided, however, that the Employer shall approve the terms and conditions of
any borrowing.


 


(q)                                 Employ
such agents, experts, advisors and counsel after consultation with the Employer
as may be reasonably necessary in carrying out the purposes of the Plan and
Trust.


 


(r)                                    Obtain
from any bank acting as a fiduciary of the Plan or Trust such ancillary
services as are permitted by ERISA.


 


(s)                                  Write
and sell call options on assets in the Trust Fund.


 


(t)                                    Generally
to do all such acts, execute all such instruments, take all such proceedings
and exercise all such rights and privileges with relation to any assets as the
Trustee may deem necessary to carry out the purposes of the Plan and Trust.


 


3.                                       Powers
of Trustee:  Individual Investment Fund.  Notwithstanding Section B2 above,
with  respect to any Individual
Investment Fund, the Trustee shall have only those powers and duties described
in Article XI.


 


4.                                       Exercise
of Powers:  Multiple Trustees.  In the event that two or more persons are
serving as the Trustee under any Plan and Trust, all actions by the Trustee
shall require the affirmative consent of a majority of those persons serving as
the Trustee.


 


5.                                       Investment
Manager.


 


(a)                                  The
term “Investment Manager” shall mean any fiduciary, other than the Trustee or
other named fiduciary of this Plan, who:


 


(1)                                  has
the power to manage, acquire, or dispose of any asset of a plan;


 


49










 













 


(2)                                  (i) is
registered as an investment adviser under the Investment Advisers Act of 1940; (ii) is
a bank, as defined in that Act; or (iii) is an insurance company qualified
to perform services described in Article X B 6(a)(1) under the laws
of more than one state, including Virginia; and


 


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


 


(b)                                 Anything
herein to the contrary notwithstanding, the Employer may, and upon direction of
any Participant who has elected to direct the investment of his Accounts
pursuant to Article XI shall select, appoint and contract with one or more
Investment Managers to manage (including the power to acquire and dispose of)
all or any part of the Trust Fund.  In
the event of such appointment, upon receipt of a copy of the executed agreement
in which the Investment Manager accepts its appointment and acknowledges its
fiduciary responsibility to the Plan, the Trustee shall follow the directions
of the Investment Manager as to the investment of that portion of the Trust
Fund which is subject to the management of the Investment Manager, and shall
have no fiduciary liability for the acts or omissions of the Investment
Manager.  The Trustee shall continue to
have the responsibility for safekeeping the assets, but the Trustee shall
receive and deliver the managed assets at the direction of the Investment
Manager.


 


(c)                                  The
Trustee may execute and deliver a power of attorney authorizing the Investment
Manager to carry out Trustee’s responsibilities on behalf of the Plan.


 


(d)                                 The
Investment Manager shall have full investment discretion as to the assets under
its management and shall have the same investment powers as are conferred upon
the Trustee by Article X B 2 above.


 


(e)                                  The
Employer may pay directly the charges of the Investment Manager.  If directed by the Employer, the Trustee
shall pay from the Fund invested by any Investment Manager the charges of the
Investment Manager so appointed at such times and in such amounts as shall be
directed by the Employer or the Participant who is individually directing the
investment of his Accounts in accordance with the terms of the investment
management agreement.


 


C.                                     Disbursements.


 


1.                                       Payment
of Benefits.


 


(a)                                  The
Trustee shall make distributions of benefits at such time, in such form and in
such amounts as shall be directed by the Administrator.


 


(b)                                 The
Administrator shall have complete control and authority to determine the
existence, non-existence, nature and amount of the rights, benefits and
interests of all 


 


50





















 


persons in or to the Trust Fund or under the
Plan, and the Trustee shall have no power, authority or duty in respect of such
matters, or to question or to examine any determination made by the
Administrator or direction given by the Administrator to the Trustee.  The Trustee shall be fully protected in
acting upon direction of the Administrator without inquiry or investigation.


 


(c)                                  The
Trustee may make any payment required to be made by the Trustee hereunder by
mailing a check for the amount thereof to the person to whom such payment is to
be made, at such address as may have been last furnished to the Trustee by the
Administrator, or if no such address shall have been so furnished, to such
person in care of the Employer at its principal office.


 


2.                                       Payment
of Taxes.  The Trustee may pay from
the Trust Fund any taxes which may be imposed upon the Trust Fund or the income
thereof, or which the Trustee is required to pay with respect to the interest
of any person under the Plan.  In the
case of taxes resulting from Participant directed investments, the taxes paid
by the Trustee shall be charged against the Accounts of the Participants whose
individually directed investments generated the taxes, if applicable.


 


3.                                       Payment
of Expenses.  The Trustee may pay
from the Trust Fund expenses incurred in the administration of the Plan or
Trust, including amounts the Trustee must pay under Article XVII I below,
brokerage fees, transfer taxes and other expenses incurred in the investment of
assets; premiums for insurance and fidelity bonds; the fees and charges for
legal, accounting and other services rendered to the Plan and Trust; and the
fees of persons engaged on behalf of the Plan or Trust such as an independent
qualified public accountant, or as an Investment Manager.  Any such expenses resulting from Participant
directed investments under Article XI shall be charged against the
Accounts of the Participants whose investment directions caused such expenses
to be incurred.


 


4.                                       Trustee’s
Compensation.  The Trustee shall
receive for the Trustee’s services as trustee under this Agreement the
compensation which may be agreed upon by the Employer and the Trustee from time
to time; provided that any Trustee already receiving full time pay from the
Employer shall not be paid any compensation for his services as trustee except
for reimbursement of direct expenses properly and actually incurred and not
otherwise reimbursed.


 


5.                                       Distribution
Upon Termination.  If and when this
trust is terminated, the Trustee shall, upon the direction of the
Administrator, liquidate the Trust Fund to the extent required for distribution
with such reasonable promptness as the Trustee deems prudent and shall
distribute the net balance thereof remaining in the Trustee’s hands to or for
the benefit of the person or persons named, and at the time or times directed,
by and in the proportions and manner specified by the Administrator, or in the
absence of such direction, in such manner as may be directed by a judgment or
decree of a court of competent jurisdiction. 
Upon making such payments, the Trustee shall be relieved from further
liability with respect to all amounts so paid. 
The powers of the Trustee hereunder shall continue so long as any assets
of the Trust Fund remain in the Trustee’s hands.


 


51





















 


6.                                       Limitations
on Disbursements.  No part of the
Trust Fund shall ever inure to the benefit of the Employer and it shall be held
for the exclusive purposes of providing benefits to Participants of the Plan
and their Beneficiaries and defraying reasonable expenses of administering the
Plan.  Notwithstanding anything herein to
the contrary, upon the Employer’s request in writing, a contribution which was (a) made
under a mistake of fact (such as a miscalculation of Compensation or a
misallocation), or (b) conditioned upon the deductibility of the
contribution under Section 404 of the Internal Revenue Code shall be
returned to the Employer within one year after the payment of the mistaken
contribution or the disallowance of the deduction (to the extent disallowed),
whichever is applicable.  Similarly, in
the event that the Commissioner of Internal Revenue determines that the Plan is
not initially qualified under the Code, any contribution made incident to that
initial qualification by the Employer must be returned to the Employer within
one year after the date the initial qualification is denied, but only if the
application for the qualification is made by the time prescribed by law for
filing the Employer’s return for the taxable year in which the Plan is adopted,
or such later date as the Secretary of the Treasury may prescribe.


 


D.                                    Rules Governing
Performance of Duties by Trustee.


 


1.                                       Reliance
on Signatures.  The Trustee may rely
upon any certificate, notice or direction purporting to have been signed on
behalf of the Employer or the Administrator which the Trustee believes to be
genuine and to have been signed by an officer of the Employer or by the person
or a committeeman serving as the Administrator, or by an agent of the
Administrator whose authority has been certified to the Trustee by the
Administrator.


 


2.                                       Advice of
Employer, Administrator or Counsel.


 


(a)                                  If
at any time the Trustee is in doubt concerning the course which the Trustee
should follow in connection with any matter relating to the administration of
this Trust, the Trustee may request the Employer or the Administrator to advise
the Trustee with respect thereto; and the Trustee shall be protected in relying
upon the advice or direction which may be given to the Trustee by the Employer
or the Administrator in response to such request.


 


(b)                                 The
Trustee may consult with any legal counsel, including general counsel for the
Employer or the Trustee’s own counsel, with respect to the meaning or
construction of this Trust Agreement, the Trustee’s obligations or duties
hereunder, or any act which the Trustee should take or omit hereunder, or any
action or proceeding or any question of law, and shall be fully protected with
respect to any action taken or omitted by the Trustee in good faith pursuant to
the advice of such counsel.


 


3.                                       Third
Parties.  A third party dealing with
the Trustee shall not make or be required by any person to make any inquiry
whether the Trustee has authority to take or omit any action under this
Agreement or whether the Administrator has instructed the Trustee to take or
omit any such action, but shall be fully protected in relying upon the
certificate of the Trustee that the 


 


52





















 


Trustee has authority to take or omit such proposed action.  The execution by the Trustee of any
instrument shall constitute the Trustee’s certificate that the Trustee is
authorized as the Trustee hereunder to execute such instrument and to proceed
as may be provided for therein.  No third
party shall be required to see to the application by the Trustee of any money
or property which may be paid or transferred to the Trustee.


 


4.                                       Exculpation
and Indemnity.


 


(c)                                  The
Trustee shall not be liable for any loss sustained by the Trust Fund by reason
of the purchase, retention, sale or exchange of any investment by the Trustee
in good faith and in accordance with the provisions hereof and ERISA.


 


(d)                                 The
Employer shall indemnify and hold the Trustee harmless from and against any
liability, loss, cost or expense arising from the Trustee acting in a manner
not inconsistent with ERISA and upon the directions of the Employer or the
Administrator or arising from the Trustee’s failure to act because of a lack of
such directions.


 


5.                                       Situs
of Assets.  Except as authorized by
the Secretary of Labor, the Trustee shall not maintain the indicia of ownership
of any assets outside the jurisdiction of the district courts of the United
States.


 


E.                                      Settlement
and Accounting.


 


1.                                       Records.  The Trustee shall keep full accounts of all
receipts and disbursements.  The Trustee’s
books and records with respect to the Trust Fund shall be open to inspection by
the Employer or the Administrator or their representatives at all reasonable
times during business hours of the Trustee.


 


2.                                       Accounting.


 


(a)                                  Within
sixty (60) days after the close of each Plan Year or any termination of the
duties of the Trustee, the Trustee shall deliver to the Employer and the Administrator
an account of assets of the Trust and the fair market value of each asset as of
the close of the period covered by the accounting; a statement of purchases and
sales of assets, and receipts and disbursements not included in a previous
report; and such other information as may be required to permit the Employer
and the Administrator to comply with the reporting and disclosure requirements
of ERISA.


 


(b)                                 If
within ninety (90) days after the receipt of such account or any amended
account the Employer does not file with the Trustee notice of any objection
which the Employer may have to any act or transaction of the Trustee, said
account shall become an account stated as to the acts or transactions disclosed
in the account.  If any such objection
has been filed, and 


 


53





















 


if the Employer is satisfied that the objection should be withdrawn or
if the account is adjusted to its satisfaction, the Employer shall in writing
filed with the Trustee signify its approval of the account and it shall become
an account stated.


 


(c)                                  When
an account shall have become an account stated, such account shall be deemed to
have been finally settled and shall be conclusive.  Such settlement of the account shall
constitute a full and complete discharge and release of the Trustee with like
effect as if such account had been settled and allowed by a judgment or decree
of a court of competent jurisdiction, except as to any acts or omissions in
violation of ERISA.


 


(d)                                 The
Trustee shall have the right to apply at any time to a court of competent
jurisdiction for the judicial settlement of the Trustee’s account, and in any
such action or proceeding it shall be necessary to join as parties thereto only
the Administrator and the Employer, and any judgment or decree which may be
entered therein shall be conclusive upon all persons having or claiming to have
an interest in the Trust Fund or under the Plan.


 


(e)                                  The
Trustee shall deliver such other periodic reports as may be reasonably requested
by the Administrator.


 


(f)                                    Insofar
as any account shall reflect anything done or omitted by the Administrator,
said account may be adopted by the Administrator by being signed by
Administrator and thereupon it shall become also an account of the proceedings
of the Administrator rendered to the Employer. 
The Administrator may also render an account of its proceedings
supplementary to those reflected in the account of the Trustee adopted by it,
or the Administrator may render to the Employer a separate account of its
proceedings.  All the provisions of this Article X
E respecting the account of the Trustee, its adjustment and settlement, and the
discharge and release of the Trustee shall apply with respect to an account of
the Administrator and shall have the same force and effect as if the
Administrator were named whenever the Trustee is named in this Article X E
or under the Plan.


 


F.                                      Resignation,
Removal and Substitution of Trustee.


 


1.                                       Resignation
of Trustee.  The Trustee may resign
the Trustee’s duties hereunder by delivering to the Employer written notice of
resignation.  The resignation shall take
effect on the date stated therein, but not sooner than sixty (60) days from the
date of delivery unless prior thereto a successor trustee shall have been appointed.


 


2.                                       Removal
of Trustee.  The Employer may remove
the Trustee at any time by delivering to the Trustee a notice of removal.  The Trustee’s removal shall be effective on
the date stated in the notice, but not sooner than sixty (60) days from the date
of delivery, unless the period is waived by the Trustee.


 


54





















 


1.                                       Appointment
of Successor Trustee.


 


(a)                                  The
appointment of a successor trustee shall be accomplished by and shall take
effect upon the delivery by Employer to the resigning or removed Trustee, as
the case may be, of a notice of appointment of the successor trustee, and an
acceptance of the appointment by the successor trustee so appointed.


 


(b)                                 Any
successor trustee hereunder may be either a corporation authorized and
empowered to exercise trust powers or one or more individuals.  All of the provisions set forth herein with
respect to the Trustee shall relate to each successor trustee so appointed with
the same force and effect as if such successor trustee had been originally
named herein as Trustee.


 


(c)                                  If,
within sixty (60) days after notice of resignation or removal shall have been
given under the provisions of this Article, a successor trustee shall not have
been appointed for the resigning or removed Trustee, the resigning or removed
Trustee or the Employer may, if necessary, apply to any court of competent
jurisdiction for the appointment of a successor trustee.


 


2.                                       Transfer
of Fund to Successor.  Upon the
appointment of a successor trustee, the resigning or removed Trustee shall, as
soon as practicable, transfer and deliver the Trust Fund to such successor
trustee after reserving such reasonable amount of money as the Trustee shall
deem necessary to provide for expenses in the settlement of the Trustee’s
account, the amount of any compensation due to the Trustee, and any sums
chargeable against the Trust Fund for which the Trustee may be liable.  If the sums so reserved are not sufficient
for such purposes, the resigning or removed Trustee shall be entitled to
reimbursement for any deficiency first, from the successor trustee to the
extent of the fund, and then, for any remaining deficiency, from the Employer.


 


ARTICLE XI


PARTICIPANT-DIRECTED INVESTMENTS


 


A.                                   Election.


 


1.                                       A
Participant may, by written, telephonic or other electronic notice filed with
the Administrator on or before the last day of the Plan Year (or such other
Valuation Date(s) as the Administrator may designate), elect to direct the
investment of all or a portion of his Vested Benefit in his Elective Deferral
and Transfer Accounts, determined as of the designated Valuation Date, upon
such terms and in such assets as he shall designate in the notice.  Likewise, a Participant who has elected to
direct the investment of all or a portion of the Vested Benefits in his
Elective Deferral and Transfer Accounts may by telephonic, electronic or such
other means as the Administrator permits change from time to time the manner in
which his Elective Deferral or Transfer Account is invested among the various
available investment options.  The
Employer may designate a limited 


 


55





















 


number of Participant directed investment options or may permit
Participants to invest in any marketable security or other investment permitted
under ERISA.


 


2.                                       Upon
receipt of a Participant’s election, the Administrator shall advise the Trustee
of the Participant’s decision to exercise control over the assets in his
designated Accounts and shall direct the Trustee to segregate the enumerated
portion of the Participant’s Vested Benefit and to administer and invest that
portion as a separate Individual Investment Fund, bearing the Participant’s
name, upon the terms and in the assets designated.  The Administrator shall establish and
maintain an Individual Investment Account as a continuing record of the assets
held in the Participant’s Individual Investment Fund.


 


Upon notice by the Administrator that a Participant has elected to
exercise control over all or a portion of the assets in his eligible Accounts,
the Trustee shall segregate a portion of the assets of the Non-Self Directed
Fund equal to the enumerated portion and shall administer and invest those
funds as an Individual Investment Fund separate and apart from the Non-Self
Directed Fund, bearing the name of the Participant.  The assets in each Individual Investment Fund
shall be invested and voted upon the terms and in the assets designated in by
the Participant telephonically, electronically or if permitted by the Administrator
in writing, and the sole duty of the Trustee with respect to the investment
thereof shall be to make the investment and any change therein or addition
thereto as directed by the Administrator and the Participant.


 


3.                                       A
Participant who has elected to direct investments may, from time to time in
like manner, elect to direct the investment of an additional portion of his
Vested Benefit, or may, at any time, amend his investment direction or elect to
terminate his investment direction as to all or a portion of the assets in the
Individual Investment Fund.  If a
Participant elects to terminate his investment direction, the Administrator
shall direct the Trustee to convert the enumerated assets of the Individual Investment
Fund to cash and to hold and invest the liquidated assets as provided in Article X.  If the termination of the Participant’s
investment direction occurs on a date other than a Valuation Date, the
liquidated assets shall be accounted for separately and shall be credited to
the pertinent Accounts of the Participant as of the next Valuation Date after
the valuation of assets and adjustment of Accounts.


 


B.                                     Accounting
for Individual Investment Funds.  As
soon as practicable after each Valuation Date, the Trustee (or its delegee)
shall determine the fair market value of the assets of the Individual
Investment Funds as of the Valuation Date and shall provide the Administrator a
statement of the receipts and disbursements during the Plan Year of each
Individual Investment Fund and its value as so determined.  As soon as practicable thereafter, the
Administrator shall furnish to each affected Participant a copy of the Trustee’s
statement.


 


C.                                     Expenses.  All expenses and taxes attributable to the
direction of investments by a Participant shall be paid by the Participant or
paid by Trustee out of the assets subject to such direction, except to the
extent that the Employer shall agree to pay the expenses.


 


56





















 


D.                                    Disposition
of Individual Investment Funds.  Upon
the termination of participation of a Participant, the Administrator shall
direct the Trustee either (a) to retain the assets held in the Individual
Investment Fund subject to further direction in accordance with this Article; (b) to
convert the Individual Investment Fund to cash and hold the liquidated assets
as a Segregated Account; or (c) to distribute the assets held in the
Individual Investment Fund to the Participant.


 


ARTICLE XII


LOANS TO PARTICIPANTS


 


A.                                   Right
to Borrow.  A Participant may borrow
from his Elective Deferral and Transfer Accounts an amount not to exceed his
Vested Benefit, subject to the approval by the Administrator of the loan.  Upon its approval of a loan to a Participant,
the Administrator shall direct the Trustee to make the loan to the Participant
in the amount and upon the terms approved, with all of the terms of any such
loan to be set forth in the Administrator’s directions to the Trustee.


 


B.                                     Loan
Terms.  In addition to such written rules as
the Administrator may adopt as part of the Plan, all loans shall comply with
the following terms and conditions:


 


1.                                       Loans
shall be made available to all Participants on a reasonably equivalent basis
and shall be administered by the Administrator.


 


2.                                       An
application for a loan by a Participant shall be made in writing to the
Administrator, whose approval or rejection thereof shall be based upon such
factors as financial need, credit worthiness of the would be borrower and
administrative burdens.  The
Administrator’s decision to approve or deny a loan shall be final.


 


3.                                       The
period of repayment for any loan shall be arrived at by mutual agreement
between the Administrator and the borrower, but such period in no event shall
exceed the maximum term specified in Article XII B 9.


 


4.                                       Each
loan shall be evidenced by the borrower’s collateral promissory note for the
amount of the loan, including interest, which shall be made payable to the
order of the Trustee, shall provide for repayment through direct payroll
reduction and deposit, shall contain the provision for acceleration described
in Article XII B 6 below, and shall be secured by the borrower’s
assignment to the Trustee of his
entire right, title and interest in and to the Trust Fund.  To the extent required by the Code, a
borrower must obtain the consent of his spouse, if any, within the ninety (90)
day period before the time the Account balances are used as security for the
loan.  A new consent is required if the
Account balances are used for any increase in the amount of security or
renegotiation, renewal, extension or other revision of the loan.  The consent shall comply with the
requirements of Article VII, but shall be deemed to meet any requirements
contained in Article VII relating to the consent of any subsequent spouse.


 


57





















 


If a valid spousal consent has been obtained in accordance with this Article XII
B 4, then, notwithstanding any other provision of this Plan, the portion of the
Participant’s Vested Benefit given as a security to the Plan by reason of a
loan outstanding to the Participant shall not be taken into account for
purposes of determining the amount of the Account balances payable at the time
of death or distribution of the Participant, but only if the reduction is used
as repayment of the loan.  If less than
one hundred percent (100%) of the Participant’s Vested Benefit (determined
without regard to the preceding sentence) is payable to the surviving spouse,
then the Vested Benefit shall be adjusted by first subtracting the amount of
the security used as repayment of the loan, and then determining the benefit
payable to the surviving spouse.


 


5.                                       Each
loan shall bear interest at a reasonable rate to be fixed by the
Administrator.  The Administrator shall
not discriminate among Participants as to interest rates, but loans granted at
different times may bear different interest rates if, in the opinion of the
Administrator, the difference in rates is justified by a change in general
economic conditions.  In determining the
interest rate, the Administrator shall take into consideration interest rates
currently being charged by local commercial lenders on secured loans bearing
similar terms and maturities.


 


6.                                       In
the event any loan made to a Participant is outstanding at the time a
distribution is to be made to the Participant or former Participant or his
Beneficiary, and the loan documents so provide, the entire principal amount
outstanding and accrued interest thereon shall become due and payable on the
date established for the distribution.


 


7.                                       In
the event of default, attachment of the pledged portion of a Participant’s
right, title and interest in and to the Trust Fund shall not occur until the
time a distribution may be made to the Participant, former Participant, or his
Beneficiary.


 


8.                                       [Reserved]


 


9.                                       No
loan to any Participant may be made to the extent that the loan, when added to
the outstanding balance of all other loans to the Participant, would exceed the
lesser of (a) $50,000 reduced by the highest balance of all loans to the
Participant outstanding in the preceding twelve (12) months, or (b) one-half
(1⁄2) the present value of the Vested Benefit of the Participant.  For purposes of the above limitation, all
loans from all plans of the Employer and other Participants of a group of
employers described in Sections 414(b), 414(c), 414(m), and 414(o) of the Code
are aggregated.  Furthermore, any loan
shall by its terms require repayment through level installments of principal
and interest, not less frequently than quarterly, within five (5) years
(up to ten (10)  years in the case of a loan used to acquire a dwelling
unit which within a reasonable time (determined at the time the loan is made)
will be used as the principal residence of the Participant).  An assignment or pledge of any portion of the
Participant’s interest in the Plan will be treated as a loan under this
paragraph.


 


58





















 


C.                                     Allocation
of Gain or Loss on Loan. 
Notwithstanding any other provision of this Plan to the contrary, all
income, gain, expenses or loss related to a Participant loan shall be allocable
solely to the Participant’s Account(s) and shall be accounted for in the same
manner as Participant-directed investments.


 


ARTICLE XIII


AMENDMENT


 


A.                                   Amendment
by Principal Employer.


 


1.                                       Except
as provided below, the Principal Employer may amend the Plan at any time
without the consent of any Participant, former Participant, Beneficiary, other
Employer or other person.  No amendment,
however, may change the rights, duties, responsibilities and/or compensation of
the Trustee without the Trustee’s consent.


 


2.                                       No
amendment to the Plan shall cause any assets of the Plan to revert to the
Employer, decrease a Participant’s Accrued Benefit or eliminate an optional
form of benefit, within the meaning of Code Section 411(d)(6), with
respect to benefits attributable to service before the amendment.  Furthermore, if the Plan’s vesting schedule is
amended, the amendment shall not reduce the Vested Benefit of any Participant
below the Vested Benefit that existed prior to the amendment, calculated as of
the later of the date such amendment is adopted or the date it becomes
effective.


 


3.                                       If
the vesting schedule of the Plan is amended, or the Plan is amended in any
way that affects directly or indirectly the computation of a Participant’s
non-forfeitable percentage of his Accrued Benefit under the Plan, or if the
Plan is deemed amended by an automatic change to or from a top-heavy vesting
schedule, then any Participant who has completed three (3) Years of
Service (five (5) Years of Service in the case of a Participant who does
not have an Hour of Service in any Plan Year commencing after December 31,
1988) with the Employer before the expiration of the election period may elect
to have the non-forfeitable percentage of his Accrued Benefit under the Plan
determined under the vesting schedule in effect before the amendment or
change.  The election period shall
commence on the date the amendment is adopted and shall end on the latest of (i) sixty
(60) days after the amendment is adopted, (ii) sixty (60) days after the
amendment becomes effective, or (iii) sixty (60) days after the
Participant is issued written notice of the amendment by the Employer or
Administrator.  The election shall be in
the form prescribed by the Administrator and shall be effective only when
executed and filed with the Administrator by the Participant.


 


B.                                     Notice.  Notice of any amendment to the Plan shall be
given to interested parties as required by the Code and ERISA.


 


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ARTICLE XIV


TERMINATION


 


A.                                   Termination
by Employer.


 


1.                                       The
Principal Employer may terminate the Plan at any time.  The Principal Employer shall give written
notice to the Administrator and Trustee as soon as practicable after a
determination to terminate is made.  The
termination of the Plan shall be effective on such date within the Plan Year in
which termination occurs or any succeeding Plan Year as may be determined by
the Principal Employer and set forth in the notice.


 


2.                                       Upon
complete termination or upon partial termination of the Plan, all Accrued
Benefits of each affected Participant shall become Vested Benefits, and the
Trustee shall accrue as a liability a reserve in such amount as may be directed
by the Administrator to provide for the cost, fees and expenses of the Trustee
and of Plan administration from the date of complete or partial termination to
final distribution of the Trust Fund, or affected portion of the Trust Fund, as
the case may be.  The Vested Benefit of
each Participant and the amount due any Beneficiary to whom benefits are
currently payable shall be segregated and held, handled and disposed of as
provided in Article VI or VII (as applicable) in the same manner as the
Vested Benefit of a former Participant, except that the Administrator shall
direct the Trustee as to the timing and method of distributing accounts under Article VI
or VII.  If the expense reserve which is
accrued is exhausted, income from the remaining Plan funds may be applied to
such expenses ratably from each Account.


 


3.                                       If
the Employer fails to make contributions for periods and in amounts substantial
enough to reflect its intent to continue the Plan, then, to the extent that
such failure constitutes, under the circumstances then prevailing, a complete
discontinuance of contributions, the Plan shall terminate.  Termination under such circumstances shall be
effective on the last day of the Plan Year following the year with respect to
which the last substantial contribution was made.


 


4.                                       Upon
termination of the Plan by reason of complete discontinuance of contributions,
benefits shall be determined and distributed as provided in Article XIV C
3 above; provided, however, that if any distributions to former Participants or
other transactions with the Participants’ or former Participants’ accounts are
made after termination of the Plan, but before notice to the Administrator of a
determination of the complete discontinuance of contributions, then the
Administrator shall make such retroactive adjustments as it deems equitable to
most nearly reflect the Vested Benefit of each Participant on the termination
date, but no refund of any amounts distributed by the Trustee prior to notice
to the Administrator of termination shall be required of any Participant or
Beneficiary.


 


B.                                     Notice.  Notice of termination of the Plan under the
foregoing provisions shall be given to interested parties as required by the
Code and ERISA.


 


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ARTICLE XV


PREDECESSOR PLANS


 


All Participants of the Predecessor Plan immediately before the
Effective Date will continue as Participants of this Plan.  The Accrued Benefit of a Participant or
former Participant of the Predecessor Plan immediately before the Effective
Date shall be the opening Accrued Benefit under this Plan.  Any amounts being paid to a former
Participant or Beneficiary under the Predecessor Plan shall continue to be paid
under the terms of that plan.  Any
Beneficiary designation in effect under the Predecessor Plan immediately before
the Effective Date shall be deemed a Beneficiary designation under this Plan
until that designation is revoked or a new one is made under this Plan.


 


ARTICLE XVI


TOP-HEAVY PROVISIONS


 


If the plan is or becomes Top-Heavy in any Plan Year, the provisions of
this Article will supersede any conflicting provision in the Plan or
Adoption Agreement.


 


A.                                   Definitions.  The following definitions shall apply with
respect to the Top-Heavy provisions of this Article, unless a different meaning
is required by the context:


 


1.                                       Compensation.  For purposes of computing Employer
contributions and minimum allocations in a year the Plan is a Top-Heavy Plan
(but not for purposes of Article IV E), Compensation shall mean compensation
as defined in Article I of the Plan; provided, however, that Compensation
for any Employee for those purposes during such year shall not exceed $200,000
or such larger amount as may be prescribed by the Secretary of the Treasury or
his delegate.


 


2.                                       Determination
Date.  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 Plan Year.


 


3.                                       Key
Employee.  Any Employee or former Employee
(and the Beneficiaries of such Employee) who at any time during the
Determination Period was an officer of the Employer if such individual’s Annual
Compensation exceeds one hundred fifty percent (150%) of the dollar limitation
under Section 415(b)(1)(A) of the Code, an owner (or considered an
owner under Section 318 of the Code) of one of the ten (10) largest
interests in the Employer if such individual’s Annual Compensation exceeds the
dollar limitation under Section 415(c)(1)(A) of the Code, a five
percent (5%) owner of the Employer under Code Section 416(i), or a one
percent (1%) owner of the Employer under Code Section 416(i) who has
Annual Compensation of more than $150,000. 
Annual Compensation means compensation as defined in Section 415(c)(3) of
the Code, but excluding Salary Reduction Contributions that are excludable
under Sections 125, 402(a)(8), 402(h) and 403(b) of the Code.  The Determination Period is the Plan Year
containing the Determination Date and the four (4) preceding Plan
Years.  The determination of who is a Key
Employee will be made in accordance with Section 416(i)(1) of the
Code and the Regulations thereunder.


 


61





















 


4.                                       Permissive
Aggregation Group.  The Required
Aggregation Group of the Plan plus any other plan or plans of the Employer
which, when considered as a group with the Required Aggregation Group, would
continue to satisfy the requirements of Sections 401(a)(4) and 410 of the
Code.


 


5.                                       Present
Value. 
Present Value shall be based only on the interest and
mortality rates specified in the Adoption Agreement.


 


6.                                       Required
Aggregation Group.  (a)  Each
qualified plan of the Employer in which at least one Key Employee participates
or participated at any time during the Determination Period (regardless of whether
the plan has terminated), and (b) any other qualified plan of the Employer
which enables a plan described in (a) to meet the requirements of Sections
401(a)(4) or 410 of the Code.


 


7.                                       Top-Heavy
Plan.  For any Plan Year beginning
after December 31, 1983, this Plan is Top-Heavy if any of the following
conditions exists:


 


(a)                                  If
the Top-Heavy Ratio for this Plan exceeds sixty percent (60%) and this Plan is
not part of any Required Aggregation Group or Permissive Aggregation Group.


 


(b)                                 If
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 sixty percent (60%).


 


(b)                                 If
this Plan is a part of a Required Aggregation Group and part of a Permissive
Aggregation Group of plans and the Top-Heavy Ratio for both groups exceeds
sixty percent (60%).


 


62





















 


8.                                       Top-Heavy
Ratio.


 


(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 (5) year period ending on the Determination
Date 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 (including any part of any account
balances distributed in the five (5) year period ending on the
Determination Date), and the denominator of which is the sum of all account
balances (including any part of any account balances distributed in the five (5) year
period ending on the Determination Date) of all Participants as of the Determination
Date.  Both the numerator and denominator
of the Top-Heavy Ratio shall be increased to the extent required under Section 416
of the Code to reflect any contribution which is due, but unpaid as of the
Determination Date.


 


(b)                                 If
the Employer maintains one or more defined contribution plans (including any
Simplified Employee Pension Plan) and the Employer also maintains or has
maintained one or more defined benefit plans which during the five (5) year
period ending on the Determination Date has or had any accrued benefits, the
Top-Heavy Ratio is a fraction, the numerator of which is the sum of the account
balances under the defined contribution plans for all Key Employees, determined
in accordance with Article XVI A 8(a) above, and the present value of
accrued benefits under the aggregated defined benefit plans for all Key
Employees, as of the Determination Dates, and the denominator of which is the
sum of the account balances under the aggregated defined contribution plans for
all participants, determined in accordance with Article XVI A 8(a) above,
and the present value of accrued benefits under the defined benefit plans for
all participants as of the Determination Date. 
Both the numerator and denominator of the Top-Heavy Ratio are increased
for any distribution of an account balance or an accrued benefit made in the
five (5) year period ending on the Determination Date.


 


(c)                                  For
purposes of Article XVI A 8(a) and XVI A 8(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 twelve (12) month period ending on the Determination Date, except as
provided in Section 416 of the Code 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 who:  (1) is not a Key
Employee but who was a Key Employee in a prior year; or (2) has not
performed an Hour of Service for an Employer maintaining the Plan during the
five (5) year period ending on the Determination Date shall be disregarded. 
The calculation of the Top-Heavy Ratio, and the extent to which
distributions, rollovers, and transfers are taken into account will be in
accordance with Section 416 of the Code 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.


 


63





















 


The Accrued Benefit of any non-Key Employee shall be determined
under:  (1) the method, if any, that
uniformly applies for accrual purposes under all defined benefit plans
maintained by Employer; or (2) if there is no such method, as if such
benefit accrued no more rapidly than the slowest accrual rate permitted under
the fractional rule of Section 411(b)(1)(C) of the Code.


 


9.                                       Valuation
Date.  With respect to any Plan Year,
the last day of the preceding Plan Year.


 


B.                                     Minimum
Contributions and Allocations.


 


1.                                       Except
as otherwise provided in Article XVI B 2 below, for any Plan Year in which
the Plan is top-heavy, the Employer contributions (including available
Forfeitures) made and allocated on behalf of any Participant who is not a Key
Employee shall not be less than the lesser of: 
(a) three percent (3%) of such Participant’s Compensation; or (b) if
the Employer has no defined benefit plan which designates this Plan to satisfy Section 401
of the Code, the largest percentage of Employer Contributions (including
available Forfeitures), expressed as a percentage of the first $200,000 of any
Key Employee’s Compensation, allocated on behalf of any Key Employee for that
year.  The minimum contribution and
allocation shall be determined without regard to any Social Security
contribution.  Neither Salary Reduction
Contributions nor Qualified Matching Contributions shall be taken into account
for purposes of satisfying the minimum contribution and allocation rule.  The minimum contribution and allocation shall
be made even though, under other Plan provisions, the Participant would not
otherwise be entitled to receive an allocation, or would have received a lesser
allocation for the Plan Year because of: 
(a) the Participant’s failure to complete 1,000 Hours of Service
(or any equivalent or other period provided in the Plan); (b) the
Participant’s failure to contribute to the Plan; or (c) the Participant
earning Compensation less than a stated amount.


 


2.                                       Article XVI
B 1 above shall not apply to any Participant who was not employed by the
Employer on the last day of the Plan Year. 
Article XVI B 1 above also shall not apply to any Participant to the
extent the Participant is covered under any other plan or plans of the Employer
if the Employer has provided in the minimum allocation or benefit requirement
applicable to Top-Heavy Plans in the other plan or plans.


 


3.                                       Any
minimum contribution and allocation required hereunder may not be forfeited to
the extent required to be nonforfeitable under Section 416 (b) of the
Code.


 


64





















 


ARTICLE XVII


MISCELLANEOUS


 


A.                                   Right
to Trust Assets.  Neither the
creation of the Plan, nor the creation of any fund or Accounts, nor the payment
of benefits hereunder shall be construed as giving any legal or equitable right
to any Employee, Participant or other person against the Employer or the
Principal Employer, or their officers or employees, or against the Trustee,
except as expressly provided herein, and all such rights under the Plan shall
be satisfied, if at all, only out of the Trust Fund held by the Trustee.


 


B.                                     No
Guarantee of Employment. 
Participation in the Plan shall not give any Participant any right to be
retained in the employ of the Employer, and the Employer retains the right to
hire and discharge any Employee at any time, with or without cause, as if the
Plan had never been adopted, and any discharged Participant shall have only
such rights or interests in the Trust Fund as are specified herein.


 


C.                                     Spendthrift/Qualified
Domestic Relations Orders.


 


1.         The interests of each
Participant and Beneficiary under the Plan are not subject to the claims of
their creditors and may not, in any way, be assigned, alienated or
encumbered.  The preceding sentence shall
also apply to the creation, assignment, or recognition of a right to any
benefit payable with respect to a Participant pursuant to a domestic relations
order, unless such order is determined to be a “qualified domestic relations
order” (“QDRO”), as defined in Section 414(p) of the Code.


 


2.      Any provision herein to
the contrary notwithstanding, all rights and benefits, including elections,
provided to a Participant in this Plan shall be subject to the rights afforded
to any “alternate payee” under a QDRO. 
Furthermore, a distribution to an “alternate payee” shall be permitted
if such distribution is authorized by a QDRO, even if the affected Participant
has not Separated from Service and has not reached the “earliest retirement age”
under the Plan.  For the purposes of this
Section, “alternate payee,” “QDRO,” and “earliest retirement age” shall have
the meaning set forth under Code Section 414(p).


 


D.                                    Number
and Gender.  The singular shall be
read as the plural wherever the context requires.  The masculine pronoun has been used in the
Plan in its generic sense to include all humankind, both male and female.


 


E.                                      Conclusiveness
of Records.  The records of the
Employer with respect to age, service, Compensation and all other relevant
matters shall be conclusive for purposes of the administration of the Plan.


 


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F.                                      Controlled
Groups/Owner-Employee Control/ Affiliated Service Groups/ Predecessor
Employer/Leased Employees.


 


1.                                       All
Employees of all corporations which are Participants of a controlled group of
corporations (as defined in Section 414(b) of the Code) of which
Employer is a Participant, all Employees of all trades or businesses (whether
or not incorporated) which are under common control (as defined in Section 414(c) of
the Code) with Employer, all Employees of all Participants of an affiliated
service group (as defined in Section 414(m) of the Code) that includes
Employer, and all individuals deemed Employees of Employer under Section 414(o)
of the Code will be treated as employed by Employer.  The ability of any deemed employees to
participate in the Plan is limited as provided in Article II A above.


 


2.                                       Any
Leased Employee shall be treated as an employee of the recipient Employer but
shall not be eligible to participate in the Plan on the same terms as other
employees.


 


3.                                       The
computation of Years of Service, Compensation, contributions and allocations shall
be adjusted as required to comply with the requirements of Code Section 414(o)
applicable to shared employees.


 


G.                                     Successor
Employer.  In the event of the
merger, consolidation or sale of assets of the Employer, under circumstances in
which a successor shall continue and carry on all or a substantial part of the
business of the Employer and shall employ a substantial number of Employees of
the Employer and shall elect to continue this Plan, the successor shall be
substituted for the Employer under the terms and provisions of this Plan upon
filing its written election to that effect with the Trustee and the
Administrator and all service for the Employer shall be treated as service for
the successor Employer.


 


H.                                    Plan
Merger.


 


In the case of any merger or consolidation with, or transfer of assets
or liabilities to, any other plan, the terms of such merger, consolidation or
transfer shall be such that each Participant 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 he would have been
entitled to receive immediately before the merger, consolidation or transfer
(if the Plan had then terminated).


 


I.                                         Payment
of Expenses.  The Employer may, but
does not obligate itself to, pay all or part of the expenses of administration
of the Plan, including the compensation and expenses of the Trustee, the
expenses of the Administrator, and any other expenses incurred at the direction
of the Administrator.  To the extent that
any of such expenses are not paid by the Employer, such expenses shall be paid
by Trustee out of the Trust Fund.


 


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J.                                        Governing
Law.  This Plan shall be governed,
construed, administered and regulated in all respects under the laws of the
State of Utah, to the extent not preempted by ERISA.


 


ARTICLE XVIII


PRINCIPAL EMPLOYER AND ASSOCIATED EMPLOYERS


 


A.                                   Application.


 


The provisions contained in this Article shall take precedence
over any contrary provision of the Plan.


 


B.                                     Participation
by Associated Employers.


 


The Principal Employer may, effective as of any date, permit an entity
or individual which is related to the Principal Employer under Section 414(b),
(c), or (m) of the Code to participate in the Principal Employership of the
Plan as an Associated Employer.  As a
condition to the participation of an Associated Employer in the Plan, the
Principal Employer shall give notice of the Associated Employer’s participation
to the Trustee and the Administrator, and the Associated Employer shall by
appropriate board resolution and execution of an agreement to adopt the Plan
for its eligible Employees.


 


C.                                     Status
of Associated Employers.


 


An Associated Employer shall be considered an Employer for all purposes
under the Plan except that all rights, authority and discretionary powers
reserved to the Employer under Articles VIII through XVII of the Plan shall be
exercisable solely by the Principal Employer (or its designee), and the
Principal Employer shall be considered the sole Employer for purposes of any
other Plan provision requiring or permitting designations, elections,
appointments or other discretionary decisions or actions by the Employer
including, the determination of the amount of Profit-Sharing and Matching
Contributions, if any, to be made by each Employer pursuant to Article III
of the Plan).


 


D.                                    Transfer
of Employment.


 


An Employee’s transfer of employment, without interruption, between
Employers which have adopted the Plan shall not constitute a termination of the
Employee’s service with an Employer under the Plan.  Hours of Service credited to a transferring
Employee in a single Plan Year by each Employer shall be aggregated for all
purposes by the Plan Administrator.  The
Compensation paid by each Employer to a Participant in a single Plan Year shall
not be aggregated for any purpose other than as required under the Code.


 


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E.                                      Simultaneous
Employment.


 


An Employee may be employed simultaneously by more than one
Employer.  The rules set forth in Section D
of this Article shall also apply to simultaneous employments.


 


F.                                      Termination
of Participation by Associated Employer.


 


4.                                       The
Principal Employer may terminate the participation in this Plan of any
Associated Employer upon giving written notice to the Associated Employer, the
Administrator and the Trustee.  The
termination shall be effective upon the date specified in the notice.


 


5.                                       Upon
the termination of an Associated Employer’s participation in the Plan, the
Associated Employer shall elect whether or not to continue a single employer
plan for its Employees.


 


6.                                       If
an Associated Employer elects to continue in effect a qualified plan and trust
for its employees, the Associated Employer shall, effective as of the effective
date of the termination of participation, establish a qualified plan for the
Participants, former Participants, and Beneficiaries affected by the withdrawal
and execute a separate trust agreement appointing a successor trustee, which
may be the Trustee.  The Trustee shall,
upon receipt of a notice of the appointment of a successor trustee, deliver to
the successor trustee assets in the amount of the Accrued Benefits of the
Associated Employer’s Employees after reserving such reasonable amount of money
as it shall deem necessary to provide for its expenses in the settlement of its
account, the amount of any compensation due to it, and any sums chargeable
against those Accrued Benefits, and shall render a complete accounting for the
period since the last accounting.  If the
sums so reserved are not sufficient for such purposes, the Trustee shall be
entitled to reimbursement for any deficiency, first from the successor trustee
to the extent of the fund, and then, for any remaining deficiency, from the
Associated Employer.  The Vested Benefit
of each Participant and the amount due any Beneficiary to whom benefits are
currently payable shall be segregated and held, handled and disposed of as
provided in Articles VI or VII, and the Administrator shall direct the Trustee
as to the distribution of the Segregated Account.  If the expense  reserve which is accrued is exhausted, income
from the Segregated Fund may be applied to such expenses ratably from each
account.


 


7.                                       If
an Associated Employer elects not to continue a qualified plan and trust for
its employees, then Article XVI C of the Plan shall be applicable to the
Accrued Benefits of Participants employed by the Associated Employer.


 


Signature Page Follows


 


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  MERIT MEDICAL SYSTEMS, INC.

  
	
   

  	
  Principal Employer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /S/

  	
   

  
	
   

  	
  Its:
  

  	
   

  	
   

  
	
   

  	
  Date:
  

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ZIONS BANK,

  
	
   

  	
  Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /S/

  	
   

  
	
   

  	
  Its:
  

  	
   

  	
   

  
	
   

  	
  Date:
  

  	
   

  	
   

  
						



 


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