AMENDED AND RESTATED









 




EXHIBIT

10.01




 




 




AMENDED

AND RESTATED ADOPTION AGREEMENT




FOR

SONIC CORP. SAVINGS AND PROFIT SHARING PLAN




 




This agreement, executed on the 31st day of December,

2001, by Sonic Corp. (hereinafter referred to as the “Employer”), a Delaware

Corporation, for the Sonic Corp. Savings and Profit Sharing Plan (hereinafter

referred to as the “Plan”).




 




W  I

T  N  E  S  S  E  T  H




 




WHEREAS, effective September 1, 1984, the Employer

established for the exclusive benefit of its eligible employees and their

beneficiaries, a defined contribution profit sharing plan and trust intended to

qualify under Sections 401(a) and 501(a) of the Internal Revenue Code of 1986,

as amended (hereinafter referred to as the “Code”) to recognize the efforts

made to its successful operation by its employees and to reward such

contribution; and




 




WHEREAS, the Employer has maintained such plan,

heretofore known as the Sonic Corp. Savings and Profit Sharing Plan (which plan

and trust are hereinafter referred to as the “Plan”), in a manner intended to

ensure that the Plan continues to qualify under Sections 401(a) and 501(a) of

the Code, as amended; and




 




WHEREAS, pursuant to the provisions of Article XIII of

the Plan prior to this amendment and restatement the Employer reserved the

right to amend the Plan at any time and from time to time; and




 




WHEREAS, the Employer intends to provide that the Plan

complies with the Uniformed Services Employment and Reemployment Rights Act of

1994 (“USERRA”), the Uruguay Round Agreements Act (“GATT”), the Small Business

Job Protection Act of 1996 (“SBJPA”), the Taxpayer Relief Act of 1997 (“TRA

‘97”), the Internal Revenue Service Restructuring and Reform Act of 1998 (“RRA

98”), the Community Renewal Tax Relief Act of 2000 (“CRA 2000”), the Employee

Retirement Income Security Act of 1974, as amended (“ERISA”), the Economic

Growth and Tax Relief Reconciliation Act of 2001(“EGTRRA”) and the Code, and

the regulations promulgated thereunder; and




 




WHEREAS, the Plan provisions as required by USERRA,

GATT, SBJPA, TRA ‘97, RRA 98, CRA 2000 and EGTRRA have been in operational

compliance as of the effective date of each individual act; and




 




WHEREAS, the Employer desires to amend and restate the

Plan effective, December 31, 2001, or the applicable date of the law changes or

as otherwise indicated herein;




 




NOW, THEREFORE, in consideration of the premises and

mutual covenants contained herein, the Employer hereby amends, and restates the

Plan in its entirety, effective December 31, 2001, or the applicable date of

the law changes or as otherwise indicated herein, notwithstanding any other

provisions of the Plan to the contrary as follows:




 




1





























 




I.                                         The Employer

and Plan Sponsor: Sonic Corp.




 




A.                                   The

Employer and Plan Sponsor’s address and telephone number are:




 




101 Park Avenue, Suite 1200




Oklahoma City, OK 73102




(405) 280-7654




 




B.                                     The

Employer and Plan Sponsor’s taxpayer identification number:




 




73-1371046




 




C.                                     The

Employer and Plan Sponsor’s fiscal year is:




 




September 1 — August 31




 




D.                                    The

Plan Year is the following twelve (12) consecutive-month period:




 




1.     Effective

January 1, 2002, the Plan Year is January 1 — December 31.




 




2.     Prior to

January 1, 2002, there was a short plan year from September 1, 2001 —  December 31, 2001.  Prior to this period, the Plan Year was September 1 — August 31.




 




E.                                      The

Plan Anniversary Date is:




 




December 31




 




F.                                      The

Plan Administrator is:




 




Sonic Corp.




101 Park Avenue,

Suite 1200




Oklahoma City, OK

73102




(405) 280-7654




 




G.                                     The

original Effective Date of the Plan is:




 




September 1, 1984




 




H.                                    The

Effective Date of this Amendment and Restatement is:




 




December 31, 2001

or the applicable

effective date of the law change or as otherwise indicated herein.




 




I.                                         The

Plan name is:




 




2





























 




Sonic Corp.

Savings and Profit Sharing

Plan (as amended and restated in this Adoption Agreement and the related basic

plan document and subsequent amendments thereto).




 




J.                                        The

Plan Number is:




 




001




 




II.                                     Eligibility

and Service:




 




A.                                   Effective

September 1, 2000, an Employee shall be eligible to participate in the Plan on

the Entry Date coinciding with or next following the date the Employee

satisfies the following eligibility requirements:




 




1.     completion

of three (3) Consecutive Months of Service. 

As used herein, a month of service means a calendar month during which

an employee completes at least 100 hours of service.




 




2.     Notwithstanding

the foregoing, any employee who completes at least 1,000 hours of service in

any eligibility computation period, as defined in Section 2.02 of the Basic

Plan Document, shall be eligible to participate in the Plan.




 




B.                                     Prior

to September 1, 2000, an Employee was eligible to participate in the Plan on

the Entry Date coinciding with or next following the completion of one (1) Year

of Service.




 




C.                                     Effective

for Plan Years beginning after December 31, 2001, Entry Dates shall occur on

the first day of each calendar month.




 




D.                                    Effective

for Plan Years beginning prior to January 1, 2002, Entry Dates were September

1, December 1, March 1 and June 1.




 




E.                                      Hours

of Service shall be actual Hours of Service determined pursuant to Plan Section

1.33(a)-(f).




 




F.                                      Years

of Service with the Employer shall be determined under the 1,000 Hours of

Service Method pursuant to Plan Section 1.74(a).




 




G.                                     Breaks-in-Service

shall have the meaning set forth in Section 1.09(a) of the Plan.




 




H.                                    All

Years of Service with the Employer shall be credited for purposes of

determining eligibility to participate in the Plan and for purposes of vesting

under the Plan.




 




I.                                         Notwithstanding

the foregoing or any other term or provision contained in this Adoption

Agreement or the Basic Plan Document, Special Project Employees shall not be

eligible or permitted to participate in the Plan.  As used herein, the term “Special Project Employee” is a person

who is hired for the purpose of participating or otherwise assisting in a

particular, discrete project which is anticipated to be completed in less than

one (1) year.  Notwithstanding the

foregoing exclusion, any employee, including a Special




 




3





























 




Project Employee, who completes 1,000 hours of service

in any eligibility computation period, as defined in Section 2.02 of the Basic

Plan Document, shall be eligible to participate in the Plan.




 




III.           Contributions:




 




A.                                   Salary

Deferral Contributions:




 




1.     Effective

for Plan Years beginning after December 31, 2001, a Salary Deferral

Contribution will automatically be made for each newly eligible Participant

hired after December 31, 2001, in the amount of 3% of such Participant’s Plan

Year Compensation, unless such Participant elects, within a reasonable period

after receiving the notice or the first day of any subsequent calendar month,

to defer another amount between 0% and 50% of Plan Year Compensation by

completing a Salary Deferral Agreement.




 




2.     Effective

for Plan Years beginning on or after December 31, 2001, the amount specified in

a Salary Deferral Agreement by a Participant shall be between 0% and 50% of

each such Participant’s Plan Year Compensation.




 




3.     Effective

for Plan Years beginning prior to January 1, 2002, the amount that could be

specified in a Salary Deferral Agreement by a Participant was between 1% and

11% of each such Participant’s Plan Year Compensation.




 




4.     Salary

Deferral Agreements may be modified the first day of each calendar month.




 




5.     Irrespective

of 4. above, Salary Deferral Agreements may be canceled at any time.




 




6.     Canceled

Salary Deferral Agreements may be restarted the first day of any subsequent

calendar month.




 




7.     Irrespective

of 4, 5, and 6 above, a modification, cancellation or restoration of a Salary

Deferral Agreement shall not be effective until it is administratively

practical to effect such modification, cancellation or restoration.




 




B.                                     Matching

Contributions:




 




Matching Contributions may be made at the sole

discretion of the Employer.  Matching

Contributions, if any, shall be made within the time limits required by

statute, at the Employer’s discretion. In no event shall Matching

Contributions, if any, be made later than the last day of the Plan Year

following the Plan Year for which the contributions are being made.




 




C.                                     Eligibility

for Matching Contributions:




 




Participants eligible to receive a Matching

Contribution shall be those Participants who made a Salary Deferral

Contribution during the period for which the match is being made.




 




4





























 




D.                                    Maximum

Contributions Matched:




 




1.     Subject to

the limitations set forth in subparagraph 2 below and elsewhere in this Adoption

Agreement and Basic Plan Document, the amount of the Employer Matching

Contribution, if any, shall be between 0% and 100% (to be determined at the

Employer’s discretion) of the portion of each Participant’s Salary Deferral

Contribution that qualify for a matching contribution.




 




2.     For each

Participant, Salary Deferral Contributions exceeding 6% of such Participant’s

Compensation will be disregarded for purposes of a Matching Contribution.  Catch-up Contributions will be disregarded

for purposes of Matching Contributions, if any.




 




3.     A true-up

Matching Contribution, if any Matching Contributions are made, may be made on

behalf of Participants who meet the Code Section 402(g) limit during the Plan

Year and/or on behalf of any other Participants who are determined by the

Employer on a uniform and nondiscriminatory basis, to be entitled to a true-up

Matching Contribution.




 




E.                                      Discretionary

Contributions may be made by the Employer, in its sole discretion.




 




F.                                      Any

Discretionary Contribution made by the Employer shall be allocated in a uniform

and non-discriminatory manner in the ratio that each eligible Participant’s

Compensation bears to the total Compensation of all eligible Participants.




 




G.                                     Eligibility

for Discretionary Contributions:




 




Participants

eligible to receive a Discretionary Contribution, if any, shall be those

Participants who have been credited with one (1) Year of Service during the

Plan Year for which such Discretionary Contribution is made and who are

employed on the last day of the Plan Year for which such Discretionary

Contribution is made.  The preceding

sentence notwithstanding, a Participant who has Separated from Service, during

the Plan Year for which a Discretionary Contribution is made, due to retirement,

death or Disability, and who is otherwise eligible to receive an allocation of

a Discretionary Contribution, shall receive an allocation of the Discretionary

Contribution for such Plan Year.




 




H.                                    Catch-up

Contributions shall apply to contributions after December 31, 2001 (as

described in Plan Section 3.17).




 




I.                                         Related

and Unrelated Rollover Contributions to the Plan (as described in Plan Section

1.60) shall be allowed regardless of whether or not the Employee is a

Participant.




 




J.                                        Plan-to-Plan

transfers directly from other plans to this Plan, as described in Plan Section

3.12(b) shall be allowed.




 




5





























 




K.                                    Nondeductible

Employee Contributions shall not be allowed.




 




IV.           Forfeitures:




 




A.                                   Forfeitures

may be used to pay Plan expenses in accordance with Section 4.06(f)(2) of the

Plan; or




 




B.                                     Forfeitures

may be used to reduce Employer Contributions, in accordance with Section

4.06(f)(5) of the Plan.




 




V.                                    Definitions

of Compensation:




 




A.                                   Code

Section 415(c) Compensation shall be defined pursuant to 1.11(b)(1) (11) of the

Plan, but shall exclude:




 




1.               holiday

bonuses;




2.               reimbursements

or other expense allowances;




3.               fringe

benefits (cash or noncash);




4.               moving

expenses;




5.               severance

payments; and




6.               welfare

benefits.




 




B.                                     For purposes

of determining the amount of Employer Contribution to which a Participant is

entitled with respect to a Plan Year as set forth in Section III.A. through G.

Compensation shall be the same as V.A. above, except it shall, on a uniform and

nondiscriminatory basis, be limited to the period for which an Employee is a

Participant in the Plan.




 




C.                                     Code

Section 414(s) Compensation shall be defined as set forth in Plan Section

1.11(d).




 




VI.           Nondiscrimination

Testing:




 




A.                                   For the Plan

Years ending August 31, 1997 through August 31, 2001 and December 31, 2001, the

Employer did not make a top-paid group election for purposes of identifying

Highly Compensated Employees under Plan Section 1.30.




 




B.                                     For the Plan

Years ending August 31, 1997 through August 31, 2001 and December 31, 2001, the

Employer did not make a calendar year election for purposes of identifying

Highly Compensated Employees under Plan Section 1.30.




 




C.                                     For the Plan

Years ending August 1997 through August 31, 2001 and December 31, 2001, the

current year data method was used in performing the Actual Deferral Percentage

(“ADP”) Test pursuant to Plan Section 3.05.  

For the Plan Years ending August 31, 1997 through August 31, 2001 and

December 31, 2001, the current year data method was used in performing the

Actual Contribution Percentage (“ACP”) Test.




 




6





























 




D.                                    For Plan

Years after December 31, 2001, the Employer will calculate the ADP Test

pursuant to Plan Section 3.05 and the ACP Test pursuant to Plan Section 3.09 by

using the prior year testing method.




 




VII.         Vesting:




 




A.                                   A

Participant’s Vested Balance in his/her Employer Matching Account and Employer

Discretionary Account shall be determined on the basis of the following Vesting

Schedule:




 




	

  Years

  of Service


  	

   


  	

  Vested Percentage


  	

   


  
	

  Less than 1 year


  	

   


  	

  0


  	

  %


  
	

  1 year


  	

   


  	

  0


  	

  %


  
	

  2 years


  	

   


  	

  20


  	

  %


  
	

  3 years


  	

   


  	

  40


  	

  %


  
	

  4 years


  	

   


  	

  60


  	

  %


  
	

  5 years


  	

   


  	

  80


  	

  %


  
	

  6 or more years


  	

   


  	

  100


  	

  %


  





 




B.            For the Short Plan Year of September

1, 2001 — December 31, 2001, Participants who are employed as of December 31,

2001 will be credited with a year of service towards vesting.




 




VIII.        Distributions

and Withdrawals:




 




A.                                   Distributions:




 




1.     The normal

form of benefit is a Qualified Joint and Survivor Annuity for married

Participants or a life annuity for unmarried Participants pursuant to Article

VIII.




 




2.     Optional

forms of benefits, subject to a Qualified Election (as defined at Section

1.55), are as follows:




a.  a lump sum pursuant to Plan Section

7.08(a)(1);




b.  installment payments, pursuant to Plan

Section 7.08(a)(2); or




c.  an annuity pursuant to Plan Section

7.08(a)(3).




 




B.                                     Financial

Hardship Withdrawals of Salary Deferral Account:




 




1.     Financial

Hardship Withdrawals shall be allowed.




 




2.     The

permissible reasons for obtaining a Financial Hardship Withdrawal shall be

those permitted under Section 7.11(b) of the Plan.




 




3.     The

resources readily available shall be determined in accordance with the Safe

Harbor provisions pursuant to Section 7.11(e) of the Plan. The appropriate

documentation from a third party regarding the types and amounts of the expenses




 




7





























 




relating to the

Financial Hardship Withdrawal must be provided by Participants as described in

Section 7.11(b) of the Plan.




 




C.                                     In-Service

Withdrawals:




 




1.     Upon

attainment of age of 591⁄2, Participants may withdraw all or a portion of their

Vested Account Balance.




 




2.     Participants

may withdraw all or any portion of their Unrelated Rollover Contributions at

any time.




 




D.            Disability:




 




The following definition of Disability shall apply rather than the

definition in Plan Section 7.04:




 




Disability shall mean the Participant, because of a physical or mental

disability, will be unable to perform the duties of his customary position of

employment (or is unable to engage in any substantial gainful activity) for an

indefinite period which the Committee considers will be of long continued

duration.  A Participant also is

disabled if he incurs the permanent loss or loss of use of a member or function

of the body, or is permanently disfigured, and incurs a severance from

employment.  The Plan considers a

participant disabled on the date the Committee determines the Participant

satisfies the definition of disability. 

The Committee may require a Participant to submit to a physical

examination in order to confirm disability.




 




E.             Spousal Consent shall be required

prior to a Participant obtaining a distribution or an in-service withdrawal.




 




IX.         Other Plans

of the Employer:




 




The Employer does

not maintain another qualified retirement plan.




 




X.          Affiliated Employers:




 




Except for the

Employees of the Participating Employers identified under Article XIII below,

Employees of Affiliated Employers shall not be covered under or eligible to

participate in the Plan.




 




XI.         Investments:




 




A.                                   The

Employer shall designate the Investment Options available under the Plan.




 




B.                                     The

Plan is intended to be an ERISA Section 404(c) plan.  Participants may elect or designate their Investment Options from

among the investment options selected by the Employer to be available under the

Plan.  A Participant may direct the

investment of all amounts in all of his/her accounts.




 




8





























 




C.                                     Employer

Securities shall mean the common stock of Sonic Corp pursuant to Plan Section

11.04 (a) (1).




D.                                    The

Responsible Fiduciary for purposes of Section 11.04 of the Plan shall be

Georgeson Shareholder (formerly known as Corporate Investor Communication,

Inc.).




 




XII.       Plan Loans:




 




Plan Loans shall

be permitted.




 




XIII.      Participating Employers:




 




The following

Affiliated Employers are intended to be Participating Employers pursuant to

Article XIV of the Basic Plan Document:




 




Sonic Industries,

Inc.




Sonic Restaurants,

Inc.




 




The Employees of such Participating Employers shall be eligible to

participate in the Plan in accordance with the eligibility requirements set

forth herein and in the Basic Plan Document.




 




This Adoption Agreement shall only be used in conjunction with the

Basic Plan Document identified as the Sonic Corp. Savings and Profit Sharing

Plan attached hereto as Exhibit “A”.




 




IN WITNESS WHEREOF, the

Employer has executed this Adoption Agreement and Plan on the day and year

first written.




 




	

   


  	

  EMPLOYER AND PLAN

  SPONSOR:


  
	

   


  	

   


  
	

   


  	

  SONIC CORP.


  
	

   


  	

   


  
	

   


  	

  W. Scott McLain


  
	

   


  	

  Name


  
	

   


  	

   


  
	

   


  	

  Chief Financial Officer


  
	

   


  	

  Title


  
	

   


  	

   


  
	

   


  	

  /s/ W. Scott McLain


  
	

   


  	

  Signature


  





 




9





























 




SONIC

CORP. SAVINGS AND PROFIT SHARING PLAN




 




BASIC

PLAN DOCUMENT




 




AND




 




ADOPTION

AGREEMENT




 




 





























 




TABLE OF CONTENTS




 




	

  ARTICLE I.  DEFINITIONS.


  	

   


  
	

  1.01.


  	

  Accounts


  	

   


  
	

  1.02.


  	

  Adoption Agreement


  	

   


  
	

  1.03.


  	

  Affiliate


  	

   


  
	

  1.04.


  	

  Anniversary Date


  	

   


  
	

  1.05.


  	

  Annual Additions


  
	

   


  	

  (a)


  	

  In general


  
	

   


  	

  (b)


  	

  Medical

  accounts


  
	

  1.06.


  	

  Authorized Absence


  
	

  1.07.


  	

  Annual Limitation


  	

   


  
	

  1.08.


  	

  Beneficiary


  	

   


  
	

  1.09.


  	

  Break-in-Service


  
	

   


  	

  (a)


  	

  1,000 Hours of Service

  Method


  
	

   


  	

  (b)


  	

  Elapsed

  Time Method


  
	

  1.09(A).


  	

  Catch-up Contributions


  
	

  1.10.


  	

  Code


  	

   


  
	

  1.11.


  	

  Compensation


  
	

   


  	

  (a)


  	

  In general


  
	

   


  	

  (b)


  	

  415(c) Compensation


  
	

   


  	

  (c)


  	

  414(q) Compensation


  
	

   


  	

  (d)


  	

  414(s)

  Compensation


  
	

  1.12.


  	

  Disability


  
	

  1.13.


  	

  Discretionary Contributions


  	

   


  
	

  1.14.


  	

  Early Retirement Age


  	

   


  
	

  1.15.


  	

  Earned Income


  	

   


  
	

  1.16.


  	

  Effective Date


  	

   


  
	

  1.17.


  	

  Eligible Employee


  	

   


  
	

  1.18.


  	

  Employee


  	

   


  
	

  1.19.


  	

  Employer


  	

   


  
	

  1.20.


  	

  Employer Account


  	

   


  
	

  1.21.


  	

  Entry Date


  	

   


  
	

  1.22.


  	

  ERISA


  	

   


  
	

  1.23.


  	

  Family Member


  	

   


  
	

  1.24.


  	

  Fiduciary


  	

   


  
	

  1.25.


  	

  Five Percent Owner


  	

   


  
	

  1.26.


  	

  Forfeiture


  	

   


  
	

  1.27.


  	

  414(q)

  Compensation


  	

   


  
	

  1.28.


  	

  414(s) Compensation


  	

   


  
	

  1.29.


  	

  415(c) Compensation


  	

   


  
	

  1.30.


  	

  Highly Compensated

  Employee


  	

   


  
	

  1.31.


  	

  Highly Compensated

  Former Employee


  	

   


  
	

  1.32.


  	

  Highly Compensated Participant


  	

   


  
	

  1.33.


  	

  Hour of Service


  
	

   


  	

  (a)


  	

  In general


  
								





 




i





























 




	

   


  	

  (b)


  	

  If no duties are performed


  
	

   


  	

  (c)


  	

  Back pay


  
	

   


  	

  (d)


  	

  Employment with Affiliates


  
	

   


  	

  (e)


  	

  Special

  rules for determining a Break-in-Service


  
	

   


  	

  (f)


  	

  Active

  Military Duty


  
	

   


  	

  (g)


  	

  Equivalency

  methods


  
	

  1.34.


  	

  Investment Manager


  
	

  1.35.


  	

  Joint and Survivor Annuity


  	

   


  
	

  1.36.


  	

  Key Employee


  	

   


  
	

  1.37.


  	

  Leased Employee


  	

   


  
	

  1.38.


  	

  Limitation Year


  	

   


  
	

  1.39.


  	

  Matching Contributions


  	

   


  
	

  1.40.


  	

  Maximum Permissible Amount


  	

   


  
	

  1.40.


  	

  Maximum Permissible Amount


  	

   


  
	

  1.41.


  	

  Net Profits


  	

   


  
	

  1.42.


  	

  Nondeductible Employee Account


  	

   


  
	

  1.43.


  	

  Nondeductible Employee Contribution


  	

   


  
	

  1.44.


  	

  Nonhighly Compensated Participant


  	

   


  
	

  1.45.


  	

  Non-Key Employee


  	

   


  
	

  1.46.


  	

  Normal Retirement Age


  	

   


  
	

  1.47.


  	

  Owner-Employee


  	

   


  
	

  1.48.


  	

  Participant


  
	

   


  	

  (a)


  	

  Active Participant


  
	

   


  	

  (b)


  	

  Inactive Participant


  
	

   


  	

  (c)


  	

  Former Participant


  
	

  1.49.


  	

  Plan


  
	

  1.50.


  	

  Plan Year


  	

   


  
	

  1.51.


  	

  Predecessor Employee Account


  	

   


  
	

  1.52.


  	

  Predecessor Employer Account


  	

   


  
	

  1.53.


  	

  Protected Benefit(s)


  
	

   


  	

  (a)


  	

  Accrued benefit of

  any Participant


  
	

   


  	

  (b)


  	

  Early retirement benefits


  
	

   


  	

  (c)


  	

  Optional

  form of benefit


  
	

  1.54.


  	

  Qualified

  Domestic Relations Order


  
	

  1.55.


  	

  Qualified Election


  	

   


  
	

  1.56.


  	

  Qualified Joint

  and Survivor Annuity


  	

   


  
	

  1.57.


  	

  Qualified Nonelective Contributions


  	

   


  
	

  1.58.


  	

  Qualified Matching Contributions


  	

   


  
	

  1.59.


  	

  Rollover Account


  	

   


  
	

  1.60.


  	

  Rollover Contribution


  	

   


  
	

  1.61.


  	

  Salary Deferral Account


  	

   


  
	

  1.62.


  	

  Salary Deferral Election


  	

   


  
	

  1.63.


  	

  Self-employed Individual


  	

   


  
	

  1.64.


  	

  Separation from Service


  	

   


  
	

  1.65.


  	

  Service


  	

   


  
	

  1.65(a).


  	

  Severance from Employment


  	

   


  
						





 




ii





























 




	

  1.66.


  	

  Shareholder-employee


  	

   


  
	

  1.67.


  	

  Spouse or Surviving Spouse


  	

   


  
	

  1.68.


  	

  Top Paid Group


  	

   


  
	

  1.69.


  	

  Total Balance


  	

   


  
	

  1.70.


  	

  Trustee


  	

   


  
	

  1.71.


  	

  Trust Fund


  	

   


  
	

  1.72.


  	

  Valuation Date


  	

   


  
	

  1.73.


  	

  Vested Balance


  	

   


  
	

  1.74.


  	

  Year of Service


  
	

   


  	

  (a)


  	

  1,000 Hours of Service

  Method


  
	

   


  	

  (b)


  	

  Elapsed

  Time Method


  
	

  ARTICLE

  II.  ELIGIBILITY AND PARTICIPATION


  
	

  2.01.


  	

  Eligibility


  	

   


  
	

  2.02.


  	

  Eligibility Computation Periods


  	

   


  
	

  2.03.


  	

  Years of Service


  	

   


  
	

  2.04.


  	

  Commencement

  and Termination of Participation


  
	

   


  	

  (a)


  	

  Application for

  Participation


  
	

   


  	

  (b)


  	

  Effective Date of

  Participation


  
	

   


  	

  (c)


  	

  Determination of

  Eligibility


  
	

   


  	

  (d)


  	

  Forms

  for Participation


  
	

   


  	

  (e)


  	

  Reemployment


  
	

   


  	

  (f)


  	

  Termination of Eligibility


  
	

   


  	

  (g)


  	

  Inclusion of an

  Ineligible Employee


  
	

   


  	

  (h)


  	

  Omission of an Eligible

  Employee


  
	

  2.05.


  	

  Acquisitions


  
	

   


  	

  (a)


  	

  In general


  	

   


  
	

   


  	

  (b)


  	

  Entry Date


  	

   


  
	

   


  	

  (c)


  	

  Eligibility Requirements


  	

   


  
	

  2.06.


  	

  Employees

  Excluded From Participation


  	

   


  
	

  ARTICLE III.  CONTRIBUTIONS


  	

   


  
	

  3.01.


  	

  Discretionary

  Contributions


  
	

   


  	

  (a)


  	

  In general


  
	

   


  	

  (b)


  	

  Contribution

  date


  
	

   


  	

  (c)


  	

  Miscellaneous

  rules


  
	

  3.02.


  	

  Salary Deferral Election


  
	

  3.03.


  	

  Salary Deferral Agreement


  
	

   


  	

  (a)


  	

  In general


  
	

   


  	

  (b)


  	

  Governing rules


  
	

   


  	

  (c)


  	

  Time

  of Payment of Salary Deferral Contributions


  
	

  3.04.


  	

  Salary Deferral

  Agreement Limitations


  
	

   


  	

  (a)


  	

  Employer’s

  right to amend the Salary Deferral Agreement


  
	

   


  	

  (b)


  	

  Determining taxable income


  
	

  3.05.


  	

  Actual Deferral

  Percentage Test


  
	

   


  	

  (a)


  	

  In general


  
	

   


  	

  (b)


  	

  Definition of

  Actual Deferral Percentage


  
	

   


  	

  (c)


  	

  Prior

  Year Testing or Current Year Testing Data


  
							





 




iii





























 




	

   


  	

  (d)


  	

  Actual

  Deferral Percentage Test Safe Harbor Contributions


  
	

   


  	

  (e)


  	

  Two or more cash or deferred plans


  
	

   


  	

  (f)


  	

  Special

  rule for Highly Compensated Participants


  
	

  3.06.


  	

  Individual

  Limitation on Salary Deferral Contributions


  
	

   


  	

  (a)


  	

  Elective

  Deferrals or Salary Deferrals


  
	

   


  	

  (b)


  	

  Excess

  Deferrals or Excess Salary Deferrals


  
	

   


  	

  (c)


  	

  Date

  when Excess Deferrals are to be distributed


  
	

   


  	

  (d)


  	

  Designation of Excess

  Deferrals


  
	

   


  	

  (e)


  	

  Income


  
	

   


  	

  (f)


  	

  Lag period

  income


  
	

   


  	

  (g)


  	

  Coordination

  with Excess Contributions


  
	

   


  	

  (h)


  	

  Notification

  by Employee


  
	

  3.07.


  	

  Matching Contributions


  
	

  3.08.


  	

  Nondeductible

  Employee Contributions


  
	

   


  	

  (a)


  	

  In general


  
	

   


  	

  (b)


  	

  Recharacterization

  of Excess Contributions


  
	

  3.09.


  	

  Actual

  Contribution Percentage Test


  
	

   


  	

  (a)


  	

  In general


  
	

   


  	

  (c)


  	

  Nondiscrimination Safe

  Harbor


  
	

  3.10.


  	

  Limitation

  of Multiple Use of Alternate Limit


  
	

   


  	

  (a)


  	

  In general


  
	

   


  	

  (a)


  	

  In general


  
	

   


  	

  (b)


  	

  Aggregate

  Limit


  
	

  3.11.


  	

  Qualified

  Nonelective and Matching Contributions


  
	

   


  	

  (a)


  	

  Allocation

  of Qualified Nonelective Contributions


  
	

   


  	

  (b)


  	

  Actual Deferral

  Percentage Test


  
	

   


  	

  (c)


  	

  Actual

  Contribution Percentage Test


  
	

   


  	

  (d)


  	

  Restrictions


  
	

   


  	

  (e)


  	

  Return of Excess

  Contributions


  
	

   


  	

  (f)


  	

  Employer

  Election


  
	

  3.12.


  	

  Rollover

  Contributions and Plan-to-Plan Transfers


  
	

   


  	

  (a)


  	

  Rollovers


  
	

   


  	

  (b)


  	

  Plan-to-Plan

  Transfers


  
	

   


  	

  (c)


  	

  Rollover

  or Plan-to-Plan Transfer from Employer ESOP


  
	

  3.13.


  	

  Return of Contributions


  	

   


  
	

  3.14.


  	

  Owner-Employee Provisions


  	

   


  
	

  3.15.


  	

  Other

  Nondiscrimination Requirements


  	

   


  
	

  3.16.


  	

  Qualified Military Service


  	

   


  
	

  3.17.


  	

  Catch-up Contributions


  	

   


  
	

  ARTICLE

  IV. PARTICIPANT ACCOUNTS AND ALLOCATIONS


  	

   


  
	

  4.01.


  	

  Establishment of Accounts


  
	

   


  	

  (a)


  	

  Employer Matching Account


  
	

   


  	

  (b)


  	

  Employer Discretionary

  Account


  
	

   


  	

  (c)


  	

  Nondeductible Employee

  Account


  
	

   


  	

  (d)


  	

  Unrelated Rollover Account


  
	

   


  	

  (e)


  	

  Related Rollover Account

  Account


  
					





 




iv





























 




	

   


  	

  (f)


  	

  Plan-to-Plan Transfer

  Account


  
	

   


  	

  (g)


  	

  Salary

  Deferral Account


  
	

   


  	

  (h)


  	

  Qualified Matching

  Contribution Account


  
	

   


  	

  (i)


  	

  Qualified

  Nonelective Contribution Account


  
	

   


  	

  (j)


  	

  Forfeiture

  Account


  
	

   


  	

  (k)


  	

  Predecessor Employee

  Account


  
	

   


  	

  (l)


  	

  Predecessor Employer

  Account


  
	

   


  	

  (m)


  	

  Employer

  Account


  
	

   


  	

  (n)


  	

  Rollover

  Account


  
	

  4.02.


  	

  Accounting

  Procedure for Allocations


  
	

   


  	

  (a)


  	

  In general


  
	

   


  	

  (b).


  	

  Securities


  
	

   


  	

  (c)


  	

  Insurance

  Contracts


  
	

  4.03.


  	

  Allocation of

  Participant Contributions


  
	

   


  	

  (a)


  	

  Nondeductible

  Employee Contributions


  
	

   


  	

  (b)


  	

  Rollover

  Contributions


  
	

   


  	

  (c)


  	

  Plan-to-Plan

  Transfers


  
	

  4.04.


  	

  Allocation of Net

  Income or Net Loss


  
	

  4.05.


  	

  Ascertainment

  of Net Income and Net Loss


  	

   


  
	

  4.06.


  	

  Allocation

  of Employer Contributions and Forfeitures


  
	

   


  	

  (a)


  	

  Discretionary

  Contributions:  Allocation in

  Proportion to Compensation


  
	

   


  	

  (b)


  	

  Discretionary

  Contribution:  Integrated Allocation


  
	

   


  	

  (c)


  	

  Discretionary

  Contribution:  Allocation Based on

  Cross Testing


  
	

   


  	

  (d)


  	

  Salary Deferral

  Contributions


  
	

   


  	

  (e)


  	

  Matching

  Contributions


  
	

   


  	

  (f)


  	

  Forfeitures


  
	

   


  	

  (g)


  	

  Additional

  Allocations


  
	

  ARTICLE V.

  LIMITATIONS ON ALLOCATIONS


  
	

  5.01.


  	

  Participants

  Covered by this Plan Only


  
	

   


  	

  (a)


  	

  In general


  
	

   


  	

  (b)


  	

  Calculation

  of Maximum Permissible Amount


  
	

  5.02.


  	

  More than One Plan


  	 

	

   


  	

  (a)


  	

  Two or more

  defined contribution plans


  	 

	

   


  	

  (b)


  	

  Defined

  benefit plans


  	 

	

   


  	

  (c)


  	

  Defined benefit plan

  fraction


  	 

	

   


  	

  (d)


  	

  Defined

  contribution plan fraction


  	 

	

   


  	

  (e)


  	

  Top-heavy rule


  	 

	

   


  	

  (f)


  	

  Limiting Annual Additions


  	 

	

   


  	

  (g)


  	

  Other limitations


  	 

	

   


  	

  (h)


  	

  Rules shall

  comply with Code section 415


  	 

	

  ARTICLE VI. VESTING


  	 

	

  6.01.


  	

  Employer Account

  Vesting Schedule


  	

   


  	 

	

  6.02.


  	

  Vesting Computation Method


  	 

	

   


  	

  (a)


  	

  In general


  	 

	

   


  	

  (b)


  	

  Change In Computation

  Period


  	 

	

  6.03.


  	

  Years of Service


  	 

							





 




v





























 




	

  6.04.


  	

  Amendment of Vesting

  Schedule


  	 

	

   


  	

  (a)


  	

  In general


  	 

	

   


  	

  (b)


  	

  Election

  Period


  	 

	

  6.05.


  	

  Other Accounts Fully

  Vested


  	 

	

  ARTICLE VII.

  BENEFITS AND DISTRIBUTIONS


  	 

	

  7.01.


  	

  Application of Provisions


  	

   


  	 

	

  7.02.


  	

  Normal Retirement Benefits


  	

   


  	 

	

  7.03.


  	

  Termination

  Benefit Prior to Normal Retirement


  	 

	

   


  	

  (a)


  	

  General Rule


  	 

	

   


  	

  (b)


  	

  Miscellaneous

  provisions


  	 

	

  7.04.


  	

  Disability Benefits


  	 

	

   


  	

  (a)


  	

  In general


  	 

	

   


  	

  (b)


  	

  Determination of

  Disability


  	 

	

  7.05.


  	

  Death Benefits


  	 

	

   


  	

  (a)


  	

  Full Vesting


  	 

	

   


  	

  (b)


  	

  Payable

  to Beneficiary


  	 

	

   


  	

  (c)


  	

  Death after

  distribution of balance


  	 

	

   


  	

  (d)


  	

  Death before

  distribution of balance


  	 

	

   


  	

  (e)


  	

  Calculation of payments


  	 

	

   


  	

  (f)


  	

  Payment to a

  child of the Participant


  	 

	

   


  	

  (g)


  	

  Miscellaneous


  	 

	

  7.06.


  	

  Certification

  of Separation from Service


  	 

	

  7.07.


  	

  Commencement of Benefits


  	 

	

   


  	

  (a)


  	

  In general


  	 

	

   


  	

  (b)


  	

  Required minimum

  distributions


  	 

	

   


  	

  (c)


  	

  Provisions take

  precedence


  	 

	

   


  	

  (d)


  	

  Distribution

  commencement date


  	 

	

   


  	

  (e)


  	

  Other rules


  	 

	

   


  	

  (f)


  	

  Distributions

  Prior to 30 Day Period


  
	

  7.08.


  	

  Settlement Options


  
	

   


  	

  (a)


  	

  In general


  
	

   


  	

  (b)


  	

  Plan Administrator Options


  
	

   


  	

  (c)


  	

  Frequency

  of payments


  
	

  7.09.


  	

  Transitional Rules


  
	

   


  	

  (a)


  	

  In general


  
	

   


  	

  (b)


  	

  Distribution upon death


  
	

   


  	

  (c)


  	

  Method of distribution


  
	

   


  	

  (d)


  	

  Method of distribution must satisfy Code

  section 401(a)(9)


  
	

  7.10.


  	

  Presumption of

  Mental Competency


  
	

  7.11.


  	

  Financial Hardship

  Withdrawals


  
	

   


  	

  (a)


  	

  In general


  
	

   


  	

  (b)


  	

  Deemed Financial

  Hardships


  
	

   


  	

  (c)


  	

  Other Financial

  Hardships


  
	

   


  	

  (d)


  	

  Other available

  resources


  
	

   


  	

  (e)


  	

  Withdrawal

  deemed necessary to satisfy financial need


  
	

   


  	

  (f)


  	

  Limitation on Amount

  Withdrawn


  
								





 




vi





























 




	

  7.12.


  	

  Attainment of Age 59-1/2


  	

   


  	 

	

  7.13.


  	

  Other Withdrawals


  	 

	

   


  	

  (a)(1)


  	

  Nondeductible

  Employee Account


  	 

	

   


  	

  (a)(2)


  	

  Rollover

  Account


  	 

	

   


  	

  (b)


  	

  Restrictions

  on Certain Contributions


  	 

	

   


  	

  (c)


  	

  Matching and

  Discretionary Accounts


  	 

	

  7.14.


  	

  Denial of a Request

  for Benefits


  	 

	

   


  	

  (a)


  	

  Content

  of a denial


  	 

	

   


  	

  (b)


  	

  Review

  procedure


  	 

	

  7.15.


  	

  Disputed Benefits


  	 

	

  7.16.


  	

  Disputed Claims


  	

   


  	 

	

  7.17.


  	

  Qualified

  Domestic Relations Orders


  	 

	

   


  	

  (a)


  	

  In general


  
	

   


  	

  (b)


  	

  Withdrawal

  provisions


  
	

   


  	

  (c)


  	

  Distribution provisions


  
	

   


  	

  (d)


  	

  Beneficiary Designation


  
	

   


  	

  (e)


  	

  Other

  restrictions


  
	

   


  	

  (f)


  	

  Payment commencement date


  
	

   


  	

  (g)


  	

  Alternate payee’s death


  
	

   


  	

  (h)


  	

  Miscellaneous


  
	

  7.18.


  	

  Designation of Beneficiary


  	 

	

   


  	

  (a)


  	

  Spouse

  is Beneficiary


  
	

   


  	

  (b)


  	

  Beneficiary designation.


  
	

   


  	

  (c)


  	

  Alternate

  payee


  
	

  7.19.


  	

  Location

  of Beneficiary or Participant Unknown


  	 

	

  7.20.


  	

  Distribution for

  Minor Beneficiary


  	

   


  
	

  7.21.


  	

  Rollover Distributions.


  
	

   


  	

  (a)


  	

  Direct

  Rollovers


  	 

	

   


  	

  (b)


  	

  Definitions


  	 

	

  ARTICLE

  VIII. JOINT AND SURVIVOR ANNUITY REQUIREMENTS


  
	

  8.01.


  	

  Provisions

  of this Article take Precedence


  	

   


  
	

  8.02.


  	

  Qualified Joint

  and Survivor Annuity


  	

   


  
	

  8.03.


  	

  Definitions


  
	

   


  	

  (a)


  	

  Annuity

  Starting Date


  
	

   


  	

  (b)


  	

  Earliest Retirement Age


  
	

   


  	

  (c)


  	

  Election

  Period


  
	

   


  	

  (d)


  	

  Pre-age

  35 Waiver


  
	

   


  	

  (e)


  	

  Qualified

  Joint and Survivor Annuity


  
	

   


  	

  (f)


  	

  Qualified

  Election


  
	

  8.04.


  	

  Qualified

  Pre-retirement Survivor Annuity


  
	

  8.05.


  	

  Notice Requirements


  
	

   


  	

  (a)


  	

  Qualified

  Joint and Survivor Annuity


  
	

   


  	

  (b)


  	

  Qualified

  Pre-retirement Survivor Annuity


  
	

  8.06.


  	

  Transitional Rules


  
	

   


  	

  (a)


  	

  In general


  
	

   


  	

  (b)


  	

  Right

  to Automatic Joint and Survivor Annuity


  
									





 




vii





























 




	

   


  	

  (c)


  	

  Election of

  early survivor annuity


  
	

   


  	

  (d)


  	

  Qualified Early

  Retirement Age


  
	

  8.07.


  	

  Account

  Balance Not Greater than $5,000


  
	

  8.08.


  	

  Consent

  Required for Certain Distributions Exceeding $5,000


  
	

  ARTICLE IX. TOP HEAVY PLAN


  
	

  9.01.


  	

  Definitions


  
	

   


  	

  (a)


  	

  Determination

  Date


  
	

   


  	

  (b)


  	

  Permissive Aggregation

  Group


  
	

   


  	

  (c)


  	

  Present Value of

  Accrued Benefits


  
	

   


  	

  (d)


  	

  Required Aggregation

  Group


  
	

   


  	

  (e)


  	

  Top-Heavy

  Plan Year


  
	

   


  	

  (f)


  	

  Top-Heavy

  Ratio


  
	

  9.02.


  	

  Determination

  of Top-Heavy and Super Top-Heavy Status


  
	

   


  	

  (a)


  	

  Top-Heavy

  Status


  
	

   


  	

  (b)


  	

  Super Top-Heavy Status


  
	

  9.03.


  	

  Special Vesting

  Requirements


  
	

  9.04.


  	

  Special

  Minimum Allocation Requirements


  
	

   


  	

  (a)


  	

  In

  general


  
	

   


  	

  (b)


  	

  Special

  Rules


  
	

  9.05.


  	

  Special Multiple Plan

  Rules


  
	

   


  	

  (a)


  	

  General rule


  
	

   


  	

  (b)


  	

  Employees

  participating in only the defined benefit plan


  
	

   


  	

  (c)


  	

  Employees

  participating in both plans


  	 

	

  9.06.


  	

  Change

  from Top-Heavy Plan to Non Top-Heavy Plan


  	 

	

  9.07.


  	

  Safe Harbor Contribution

  Plan


  	

   


  	 

	

  ARTICLE X. PLAN

  ADMINISTRATOR


  	

   


  	 

	

  10.01.


  	

  Plan Administrator


  	

   


  	 

	

  10.02.


  	

  Signatures


  	

   


  	 

	

  10.03.


  	

  General

  Powers and Authority of Plan Administrator


  	 

	

   


  	

  (a)


  	

  Plan

  Administrator is a Fiduciary


  	 

	

   


  	

  (b)


  	

  Powers of Plan

  Administrator


  	 

	

  10.04.


  	

  Uniform Administration


  	 

	

  10.05.


  	

  Finality of Decision


  	

   


  	 

	

  10.06.


  	

  Self Interest of

  Participant


  	

   


  	 

	

  10.07.


  	

  Plan Records


  	

   


  	 

	

  10.08.


  	

  Bonding and

  Liability of Plan Administrator


  	

   


  	 

	

  10.09.


  	

  Reporting and Disclosure


  	

   


  	 

	

  10.10.


  	

  Power and

  Responsibilities of the Employer


  	 

	

   


  	

  (a)


  	

  Duties


  	 

	

   


  	

  (b)


  	

  Power

  to appoint Trustee and Plan Administrator


  	 

	

   


  	

  (c)


  	

  Funding policy method


  	 

	

   


  	

  (d)


  	

  Service of legal process


  	 

	

   


  	

  (e)


  	

  Performance

  reviews


  	 

	

  10.11.


  	

  Payment of Expenses


  	 

	

  ARTICLE

  XI. PARTICIPANT DIRECTION OF INVESTMENTS


  	

   


  	 

	

  11.01.


  	

  Participant-Directed

  Investment Account


  	

   


  	 

					





 




viii





























 




	

  11.02.


  	

  Investment Options.


  	

   


  
	

  11.03.


  	

  Investment Direction


  
	

   


  	

  (a)


  	

  Investment

  election


  
	

   


  	

  (b)


  	

  Absence of

  affirmative direction


  
	

   


  	

  (c)


  	

  Change of

  investment election


  
	

   


  	

  (d)


  	

  Transfers between options


  
	

   


  	

  (e)


  	

  Oral

  instructions


  
	

   


  	

  (f)


  	

  Other

  restrictions


  
	

  11.04.


  	

  Investment

  Direction – Employer Securities


  
	

   


  	

  (a)


  	

  Definitions


  
	

   


  	

  (b)


  	

  Investment

  Election – Employer Securities


  
	

   


  	

  (c)


  	

  Proxy Voting –

  Employer Securities


  
	

   


  	

  (d)


  	

  Tender Offers –

  Employer Securities


  
	

  ARTICLE XII.

  PARTICIPANT LOANS


  
	

  12.01.


  	

  Availability of Loans


  	

   


  
	

  12.02.


  	

  Loan Policy


  	

   


  
	

  12.03.


  	

  Loan Documents


  	

   


  
	

  ARTICLE

  XIII. ADOPTION, TERMINATION AND RELATED MATTERS


  	

   


  
	

  13.01.


  	

  Adoption Agreement


  	

   


  
	

  13.02.


  	

  Right to Amend Reserved


  
	

   


  	

  (a)


  	

  Right to

  Amend


  
	

   


  	

  (b)


  	

  No Protected

  Benefit may be eliminated


  
	

  13.03.


  	

  Limitations

  on Employer’s Right to Amend


  
	

  13.04.


  	

  Right to Terminate


  	

   


  
	

  13.05.


  	

  Suspension of

  Contributions


  	

   


  
	

  13.06.


  	

  Merger, Partial Merger, Consolidation, and

  Transfer of Assets


  	

   


  
	

  13.07.


  	

  Partial Termination


  	

   


  
	

  13.08.


  	

  Liquidation of the Trust

  Fund


  
	

   


  	

  (a)


  	

  Continuing

  the Trust


  
	

   


  	

  (b)


  	

  Liquidating

  the Trust


  
	

  13.09.


  	

  Manner of Distribution


  
	

  13.10.


  	

  No Reversion to Employers


  
	

   


  	

  (a)


  	

  Deductibility


  
	

   


  	

  (b)


  	

  Mistake of

  Fact


  
	

   


  	

  (c)


  	

  Initial Qualification


  
	

   


  	

  (d)


  	

  Other Allowable

  Provisions


  
	

  13.11.


  	

  Determination of

  Returned Amount


  
	

  ARTICLE XIV.

  PARTICIPATING EMPLOYERS


  	

   


  
	

  14.01.


  	

  Adoption By Other

  Employers


  	

   


  
	

  14.02.


  	

  Requirements

  of Participating Employers


  
	

   


  	

  (a)


  	

  Trustee


  
	

   


  	

  (b)


  	

  Trust Funds


  
	

   


  	

  (c)


  	

  Transfers


  
	

   


  	

  (d)


  	

  Participant

  rules


  
	

   


  	

  (e)


  	

  Expenses


  
	

  14.03.


  	

  Designation of Agent


  
					





 




ix





























 




	

  14.04.


  	

  Employee Transfers


  	

   


  	 

	

  14.05.


  	

  Participating

  Employer’s Contribution


  	 

	

   


  	

  (a)


  	

  In general


  	 

	

   


  	

  (b)


  	

  Contracts


  	 

	

  14.06.


  	

  Amendment


  	 

	

  14.07.


  	

  Discontinuance of

  Participation


  	

   


  	 

	

  14.08.


  	

  Plan Administrator’s

  Authority


  	

   


  	 

	

  14.09.


  	

  Participating

  Employer’s Contribution for Affiliate


  	

   


  	 

	

  ARTICLE XV.

  MISCELLANEOUS PROVISIONS


  	

   


  	 

	

  15.01.


  	

  Named

  Fiduciaries and Allocation of Responsibility


  	

   


  	 

	

  15.02.


  	

  Nonalienability of Benefits


  	

   


  	 

	

  15.03.


  	

  Rights to Trust Assets


  	

   


  	 

	

  15.04.


  	

  No Diversion of Trust Fund


  	

   


  	 

	

  15.05.


  	

  Name and Address Change


  	

   


  	 

	

  15.06.


  	

  Plan Not an

  Employment Contract


  	

   


  	 

	

  15.07.


  	

  Controlling Law


  	

   


  	 

	

  15.08.


  	

  Severability


  	 

	

  15.09.  


  	

  Legal Action


  	 

	

  15.10.  


  	

  Employer’s

  and Trustee’s Protective Clause


  	 

	

  15.11.  


  	

  Insurer’s Protective

  Clause


  	 

	

  15.12.  


  	

  Receipt and Release

  for Payments


  	 

	

  15.13.  


  	

  Action by the Employer


  	 

	

  15.14.  


  	

  Headings for Convenience


  	 

	

  15.15.  


  	

  Words Used


  	 

	

  15.16.  


  	

  Reference to Code

  or ERISA Sections


  	 

	

  15.17.  


  	

  Counterparts


  	 

	

  APPENDIX A


  	 

	

  APPENDIX

  A


  	

  TOP

  HEAVY PLAN


  	 

	

  9.01. 


  	

  Definitions


  	 

	

   


  	

  (a)


  	

  Determination

  Date


  	 

	

   


  	

  (b)


  	

  Permissive Aggregation

  Group


  	 

	

   


  	

  (c)


  	

  Present Value of

  Accrued Benefits


  	 

	

   


  	

  (d)


  	

  Required Aggregation

  Group


  	 

	

   


  	

  (e)


  	

  Top-Heavy

  Plan Year


  	 

	

   


  	

  (f)


  	

  Top-Heavy

  Ratio


  	 

	

  9.02.


  	

  Determination

  of Top-Heavy and Super Top-Heavy Status


  	 

	

   


  	

  (a)


  	

  Top-Heavy

  Status


  	 

	

   


  	

  (b)


  	

  Super

  Top-Heavy Status


  	 

	

  9.03.


  	

  Special Vesting

  Requirements


  	 

	

  9.04.


  	

  Special Minimum

  Allocation Requirements


  	 

	

   


  	

  (a)


  	

  In general


  	 

	

   


  	

  (b)


  	

  Special

  Rules


  	 

	

  9.05.


  	

  Special Multiple Plan

  Rules


  	 

	

   


  	

  (a)


  	

  General rule


  	 

	

   


  	

  (b)


  	

  Employees

  participating in only the defined benefit plan


  	 

	

   


  	

  (c)


  	

  Employees

  participating in both plans


  	 

	

  9.06.


  	

  Change

  from Top-Heavy Plan to Non Top-Heavy Plan


  	

   


  
									





 




x





























 




ARTICLE

I.  DEFINITIONS.




 




The terms in this Plan

shall have the meaning set forth in Article I, unless another meaning is

clearly required:




 




1.01.       Accounts

mean all of the following accounts which may be maintained for a Participant

under the Plan: Salary Deferral Account, Nondeductible Employee Account,

Rollover Account (subdivided into a Unrelated Rollover Account and a Related

Rollover Account), Plan-to-Plan Transfer Account, Employer Discretionary

Account (or Discretionary Account), Employer Matching Account (or Matching

Account), Qualified Matching Contributions Account, Qualified Nonelective

Contributions Account, Predecessor Employee Account and Predecessor Employer

Account.  The Accounts, maintained for

each Participant, shall constitute a subtrust, even if the investments of a Participant’s

Account(s) are commingled with the investments of another Participant’s

Account(s).  Accordingly, the

Participant Account(s) of one Participant shall not be liable for liabilities

incurred in the Participant Account(s) of another Participant.  Accounts hereunder are for accounting

purposes only and the segregation of Plan assets shall not be required.  The Plan Administrator may establish such

other Accounts as may be necessary to reflect the interest of any Participant,

Former Participant, Beneficiary or alternate payee (as defined in Code section

414(p)) in the Plan.




 




1.02.       Adoption Agreement

means the instrument signed by the Employer to adopt this Plan.




 




1.03.       Affiliate means the Employer and any corporation

which is a member of a controlled group of corporations (as defined in Code

section 414(b)) which includes the Employer; and a trade or business (whether

or not incorporated) which is under common control (as defined in Code section

414(c)) with the Employer; any organization (whether or not incorporated) which

is a member of an affiliated service group (as defined in Code section 414(m))

which includes the Employer; and any other entity required to be aggregated

with the Employer pursuant to Regulations under Code section 414(o).




 




1.04.       Anniversary Date  means the last day of the Plan

Year.




 




1.05.       Annual Additions means:




 




(a)           In general. 

The sum of the following amounts allocated to a Participant’s Accounts

for a Limitation Year:




 




(1) Employer Contributions (including Salary

Deferral Contributions, Employer Discretionary Contributions, and Employer

Matching Contributions);




 




(2) Forfeitures;




 




(3) Nondeductible Employee Contributions; and




 




(4) except that

for Limitation Years beginning prior to January 1, 1987, “the lesser of (A)

Nondeductible Employee Contributions in excess of six percent (6%) of the

Employee’s 415(c) Compensation for the Limitation Year, or (B) one-half of the 




 




1





























 




Employee’s

Nondeductible Employee Contributions,” shall be substituted for subparagraph

1.05(a)(3).




 




(b)            Medical

accounts.  Amounts allocated, after March 31, 1984, to

an individual medical account, as defined in Code section 415(l)(2), which is

part of a pension or annuity plan maintained by the Employer, are treated as

Annual Additions to a defined contribution plan. Also, amounts derived from

contributions paid or accrued after December 31, 1985, in taxable years ending

after such date, which are attributable to post-retirement medical benefits

allocated to the separate account of a Key Employee (as defined in Code section

416(i)(1)), maintained by the Employer, are treated as Annual Additions to a

defined contribution plan.




 




1.06.       Authorized Absence means an

unpaid, temporary cessation from active employment with the Employer pursuant

to an established nondiscriminatory policy, whether occasioned by illness,

military service, or any other reason.




 




1.07.       Annual Limitation, see Section 1.11(a).




 




1.08.       Beneficiary means an individual, or trustee of a

trust for the benefit of an individual, or an estate, as may be determined in

connection with the provisions of the Plan.




 




1.09.       Break-in-Service shall have one of the following

meanings, as set forth in the Adoption Agreement:




 




(a)            1,000

Hours of Service Method  means the applicable computation

period during which an Employee has not completed more than

500 Hours of Service.  Further, solely

for the purposes of determining whether a Participant has incurred a one year

Break-in-Service, Hours of Service shall be recognized for “authorized leaves

of absence” and “maternity and paternity leaves of absence” as described in

Plan Section 1.33(e).  Years of Service

and one-year Breaks-in-Service shall be measured on the same computation period.




 




(b)            Elapsed

Time Methodmeans the applicable computation period of 12 consecutive months during

which an Employee is not employed by the Employer due to a Severance from

Employment.  Further, solely for the

purposes of determining whether a Participant has incurred a one-year

Break-in-Service, Hours of Service shall be recognized for “authorized leaves

of absence” and “maternity and paternity leaves of absence.”  Years of Service and one-year

Breaks-in-Service shall be measured on the same computation period.  A Break-in-Service is a period of severance

of at least 12 consecutive months.  A

period of severance is a continuous period of time during which the Employee is

not credited with at least one Hour of Service. Such period begins on the date

the Employee retires, quits, or is discharged, or if earlier, the 12 month

anniversary of the date on which the Employee was otherwise first absent from

Service.




 




In the case of an individual who is absent from work

for maternity or paternity reasons, the 12 consecutive month period beginning

on the first anniversary of the first date of such absence shall not constitute

a Break-in-Service.  For purposes of

this Section 1.09(b), an absence from work for maternity or paternity reasons

means an absence by reason of the:




 




2





























 




(1) pregnancy of the individual; (2) birth of a child of the

individual; (3) placement of a child with the individual in connection with the

adoption of such child by such individual; or (4) care of such child for a

period beginning immediately following such birth or placement.




 




Notwithstanding

any provision of this Plan to the contrary, contributions, benefits and Service

credit with respect to qualified military service will be provided in

accordance with Code section 414(u).




 




1.09(A)       Catch-up Contributions

means contributions made by a Participant, who has attained age 50 before the

close of the Plan Year, in accordance with, and subject to the limitations of,

section 414(v) of the Code.




 




1.10.       Code means the Internal Revenue Code of 1986, as it may be

amended from time to time.




 




1.11.       Compensation.




 




(a)           In general.  Compensation, effective for Plan Years

beginning on or after January 1, 2002, has several different definitions in

order to comply with the Code, and such definitions are set forth below.  All definitions are subject to the following

provisions:




 




In addition to

other applicable limitations set forth in the Plan, and notwithstanding any

other provision of the Plan to the contrary, for Plan Years beginning on or

after January 1, 2002, the annual Compensation, of each Employee, taken into

account under the Plan shall not exceed the EGTRRA annual compensation

limit.  The EGTRRA annual compensation

limit shall be $200,000, as adjusted by the Commissioner for increases in the cost

of living in accordance with Code section 401(a)(17)(B).  The cost-of-living adjustment in effect for

a calendar year applies to any period, not exceeding 12 months, over which

Compensation is determined (determination period) beginning in such calendar

year.  If a determination period

consists of fewer than 12 months, the EGTRRA annual compensation limit shall be

multiplied by a fraction, the numerator of which is the number of months in the

determination period, and the denominator of which is 12.




 




For Plan Years beginning on or after January 1, 2002,

any reference in the Plan to the limitation under Code section 401(a)(17) shall

mean the EGTRRA annual compensation limit set forth in this provision.




 




If Compensation for any prior determination period is

taken into account in determining an Employee’s benefits accruing in the

current Plan Year, the Compensation for that prior determination period shall

be subject to the OBRA ’93 annual compensation limit in effect for that prior

determination period. For this purpose, for determination periods beginning

before the first day of the first Plan Year beginning on or after

January 1, 2002, the OBRA ’93 annual compensation limit shall be

$150,000.




 




(1) Annual Limitation.  For Plan Years beginning on or after January 1, 1994 and prior to

January 1, 2002, a Participant’s annual Compensation that may be taken into

account




 




3





























 




for all purposes under this Plan shall not exceed the

OBRA ’93 annual compensation limit.  The

OBRA ’93 annual compensation limit shall be $150,000, as adjusted by the

Commissioner for increases in the cost of living in accordance with Code

section 401(a)(17)(B).  Compensation in

excess of the OBRA ’93 limit shall be disregarded.




 




For Plan Years beginning prior to January 1, 1994, a

Participant’s annual Compensation that may be taken into account for all

purposes under this Plan is subject to the Annual Limitation.  Annual Limitation means $200,000, as adjusted

annually by the Commissioner.  Compensation

in excess of the Annual Limitation shall be disregarded.




 




Contributions allocated or benefits accrued under this

Plan for Plan Years prior to January 1, 1989, are not subject to the

Annual Limitation, except for Top-Heavy Plan Years. For Top-Heavy Plan Years

prior to January 1, 1989, the Annual Limitation is $200,000.




 




(2) De minimis accrued

Compensation.  An Employer may

include in all definitions of Compensation amounts earned but not paid in a

year because of the timing of pay periods and pay days if these amounts are

paid during the first few weeks of the next year, the amounts are included on a

uniform and consistent basis with respect to all similarly situated employees,

and no Compensation is included in more than one limitation period.  No formal election is required to include

the accrued Compensation permitted under this de minimis rule.




 




(b)           415(c)

Compensation

means:




 




(1)

The Participant’s wages, salaries, fees for professional services and other

amounts received (without regard to whether or not an amount is paid in cash)

for personal services actually rendered in the course of employment with the

Employer to the extent that the amounts are includible in gross income

(including, but not limited to, commissions paid to salesmen, compensation for

services on the basis of a percentage of profits, commissions on insurance

premiums, tips, bonuses, fringe benefits, and reimbursements, or other expense

allowances under a nonaccountable plan (as described in section 1.62-2(c) of

the Treasury Regulations)).




 




(2)

In the case of a Participant who is self-employed, i.e., is an employee within

the meaning of Code section 401(c)(1) and the Regulations thereunder, the

Participant’s Earned Income.




 




(3)

Amounts described in Code section 104(a), but only to the extent that these

amounts are includible in the gross income of the Employee.




 




(4)

Amounts paid or reimbursed by the Employer for moving expenses incurred by an

Employee, but only to the extent that these amounts are not deductible by the

Employee under Code section 217.




 




4





























 




(5)

The value of a non-qualified stock option granted to an Employee by the

Employer, but only to the extent that the value of the option is includible in

the gross income of the Employee for the taxable year in which granted.




 




(6)

The amount includible in the gross income of an Employee upon making the

election described in Code section 83(b).




 




(7)

Compensation

includes foreign earned income (as defined in Code section 911(b)), whether or

not excludible from gross income under Code section 911.




 




(8)

For Limitation Years beginning after December 31, 1991, for purposes of

applying the limitations of this provision, Compensation for a Limitation Year

is the Compensation actually paid or made available during such Limitation

Year.




 




(9)  For

Limitation Years beginning after December 31, 1997, the 415(c) Compensation

definition shall include any elective deferrals (as defined in Code section

402(g)(3)) paid or made available during such Limitation Year, and any amount

which is contributed or deferred by the Employer at the election of the

Employee and which is not includible in the gross income of the Employee by

reason of Code section 125 or 457.




 




(10)  For Limitation Years beginning on or after

January 1, 2001, 415(c) Compensation shall include elective amounts that are

not includible in the gross income of the Employee by reason of Code section

132(f)(4).




 




(11)  415(c) Compensation does not

include items such as:




 




(A) Contributions made by the Employer to a Plan

of deferred compensation to the extent that, before the application of the Code

section 415 limitations to that Plan, the contributions are not includible in

the gross income of the Employee for the taxable year in which contributed,

including Salary Deferral Contributions to this Plan.  In addition, Employer Contributions made on behalf of an Employee

to a Simplified Employee Pension Plan described in Code section 408(k) are not

considered as compensation for the taxable year in which contributed to the

extent such contributions are deductible by the Employee under Code section

219(b).  Additionally, any distributions

from a plan of deferred compensation are not considered as 415(c) Compensation,

regardless of whether such amounts are includible in the gross income of the

employee when distributed.  However, any

amounts received by an Employee pursuant to an unfunded non-qualified plan will

be considered as 415(c) Compensation in the year such amounts are includible in

the gross income of the Employee.




 




(B) Amounts realized from the exercise of a

non-qualified stock option, or when restricted stock (or property) held by an

Employee either becomes freely transferable or is no longer subject to a

substantial risk of forfeiture (as described in Code section 83 and the

regulations thereunder).




 




5





























 




(C) Amounts realized from the sale, exchange or

other disposition of stock acquired under a qualified stock option.




 




(D) Other amounts which receive special tax

benefits, such as premiums for group term life insurance (but only to the

extent that the premiums are not includible in the gross income of the

Employee), or contributions made by the Employer (whether or not under a salary

reduction agreement) towards the purchase of an annuity contract described in

Code section 403(b) (whether or not the contributions are actually excludible

from the gross income of the Employee).




 




(12)  Alternative

definitions of 415(c) Compensation. 

In lieu of defining 415(c) Compensation as above, and if so specified in

the Adoption Agreement, the Plan may define 415(c) Compensation using one of the

following definitions used for employment tax purposes, as modified herein,

except for Employees who are self-employed within the meaning of Code section

401(c)(1).




 




For Limitation

Years beginning after December 31, 1997, the 415(c) Compensation definition

shall include any elective deferral (as defined in Code section 402(g)(3)) paid

or made available during such Limitation Year, and any amount which is

contributed or deferred by the Employer at the election of the Employee and

which is not includible in the gross income of the Employee by reason of Code

section 125 or 457.  For Limitation Years beginning on or after January 1, 2001,

415(c) Compensation shall include elective amounts that are not includible in

the gross income of the Employee by reason of Code section 132(f)(4).




 




(A)  Wages, Tips and Other Compensation Box on Form W-2

(Code sections 6041 and 6051 wages).  415(c) Compensation is defined as wages within the meaning

of Code section 3401(a) and all other payments of compensation to an Employee

by the Employer (in the course of the Employer’s trade or business) for which

the Employer is required to furnish the Employee a written statement under Code

sections 6041(d) and 6051(a)(3), except the following amounts shall be excluded

unless otherwise stated in the Adoption Agreement: amounts paid or reimbursed

by the Employer for moving expenses incurred by an Employee, but only to the

extent that at the time of the payment it is reasonable to believe that these

amounts are deductible by the Employee under Code section 217.  415(c) Compensation under this alternative

definition must be determined without regard to any rules under Code section

3401(a) that limit the remuneration included in wages based on the nature or

location of the employment or the services performed (such as the exception for

agricultural labor in Code section 3401(a)(2)).




 




(B)  Code section 3401(a) wages.  415(c) Compensation is defined as wages

within the meaning of Code section 3401(a) for purposes of income tax

withholding at the source but determined without regard to any rules that limit

the remuneration included in wages based on the nature or location of the




 




6





























 




employment or the

services performed (such as the exception for agricultural labor in Code

section 3401(a)(2)).




 




(C)  Section 3121 wages.  415(c) Compensation is defined as wages

within the meaning of Code section 3121(a), for purposes of calculating Social

Security taxes, but determined without regard to the wage base limitation in

Code section 3121(a)(1), the limitations on the exclusions from wages in Code

section 3121(a)(5)(C) and (D) for elective contributions and payments by reason

of salary deferral agreements, the special rules in Code section 3121(v), any

rules that limit covered employment based on the type or location of an

Employee’s Employer, and any rules that limit remuneration included in wages

based on familial relationship or based on the nature or location of the

employment or the services (such as the exceptions to the definition of

employment in Code section 3121(b)(1) through (20)).




 




(c)          414(q) Compensation means for Limitation Years beginning before January

1, 1998, 415(c)

Compensation without regard to Code sections 125, 402(e)(3), and

402(h)(1)(B) and, in the case of Employer contributions made pursuant to a

salary deferral agreement, without regard to Code section 403(b).  414(q) Compensation includes elective or

salary reduction contributions to a cafeteria plan, a cash or deferred

arrangement or a tax-sheltered annuity, including Salary Deferral Contributions

to this Plan.




 




For Limitation

Years beginning after December 31, 1997, 414(q) Compensation means 415(c)

Compensation.




 




(d)          414(s) Compensation  for purposes of

nondiscrimination testing hereunder, means compensation as defined in Code

section 414(s) and the Treasury regulations thereunder, as elected by the Employer

from time to time from the various options available under such regulations,

and pursuant to any rules and requirements as may be set forth in such

regulations.  To the extent permissible

under such regulations, the Employer may use different definitions of 414(s)

Compensation (i) for different nondiscrimination tests in the same Plan Year,

and (ii) for the same nondiscrimination test from year to year.  At the discretion of the Employer, 414(s)

Compensation may be limited to that compensation earned while an Employee is a

Participant, as permitted by law.




 




1.12.       Disability  means the inability, supported by medical

evidence, to engage in substantial gainful activity by reason of any medically

determinable physical or mental impairment that can be expected to result in

death or which has lasted or can be expected to last for a continuous period of

not less than 12 months.




 




Unless specified

otherwise in the Adoption Agreement, for a Participant to establish Disability,

such Participant must furnish to the Plan Administrator evidence that the

federal Social Security Administration has determined that the Participant is

eligible to receive total disability benefits under the federal Social Security

Act.




 




7





























 




1.13.       Discretionary Contributions

means contributions which the Employer makes to the Plan for the benefit of

Participants, which is not a Salary Deferral or a Matching Contribution. All

Discretionary Contributions for a Plan Year shall be contributed to the Trustee

by the date prescribed by law (including extension thereof) for filing the

Employer’s federal income tax return for its taxable year ending with or within

such Plan Year.




 




1.14.       Early Retirement Age  shall

be age 55, unless otherwise specified in the Adoption Agreement, and means the

earliest date on which a Participant who has Separated from Service with the

Employer can elect to receive Normal Retirement Benefits.




 




1.15.       Earned Income means the net earnings from

self-employment in the trade or business with respect to which the Plan is

established, for which personal services of the individual are a material

income-producing factor. Net earnings shall be determined without regard to

items not included in gross income and the deductions allocable to such items.

Net earnings are reduced by contributions by the Employer to a qualified plan

to the extent deductible under Code section 404.  Net earnings shall be determined with regard to the deduction

allowed to the taxpayer by Code section 164(f) for taxable years beginning

after December 31, 1989.




 




1.16.       Effective Date means the date as of which the Plan

is first made effective with respect to an Employer (not earlier than the first

day of the first Plan Year), and which is set forth in the Adoption Agreement.

For Employers who adopt this Plan as an amendment and restatement of a prior

plan, such amendment and restatement shall be effective as provided for in the

Adoption Agreement.




 




1.17.       Eligible Employee means an Employee who at any time

has met the requirements of the Plan for participation in the Plan.




 




1.18.       Employee means any person

who is employed by the Employer or affiliated Employer, but excludes any person

who is: (1) an independent contractor; or (2) any individual who performs

service for the Employer who has been classified by the Employer as an

independent contractor, a subcontractor or in any other capacity not within the

traditional common-law meaning of the term “Employee,” even if such individual

is later re-classified either by the Internal Revenue Service or any court of

competent jurisdiction as a common-law Employee.  The term Employee shall include any Leased Employee deemed to be

Employee of the Employer or affiliated Employer as provided in Code section

414(n) or (o) except to the extent such Leased Employees may be excluded under

the provisions of Section 1.37, in any event, however, such Leased Employees

shall only be included for the purposes of Code section 410(b).




 




1.19.       Employer means any corporation, professional corporation, professional

association, partnership, S corporation, sole proprietorship or unincorporated

business which shall adopt this Plan and any successor organization which may

succeed to its business and which may elect to continue the Plan. In the case

of a group of employers which are Affiliates, all such employers shall be

considered a single Employer for purposes of establishing the Maximum

Permissible Amount.  “Employer” shall

include Participating Employers (as defined in Section 14.01) unless the context

requires otherwise.




 




8





























 




1.20.       Employer Account means the combined individual

Accounts of a Participant consisting of any Matching Contributions and any

Discretionary Contributions made to the Plan on behalf of the Participant,

including income, expenses, gains, losses, and Forfeitures attributable

thereto.




 




1.21.       Entry Date means the date or dates specified in the

Adoption Agreement; or, in the case of a business which becomes an Employer

because of an acquisition by the Plan Sponsor, the Plan Administrator, in his

sole discretion, may set an additional Entry Date so that the eligible

Employees of said business may become Participants in the Plan in accordance

with Section 2.05.




 




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

may be amended from time to time.




 




1.23.       Family Member means, with respect

to an affected Participant, such Participant’s Spouse, such Participant’s

lineal descendants and ascendants and their Spouses, all as described in Code

section 414(q)(6)(B) prior to its repeal in the Small Business Job Protection

Act of 1996, which repeal was effective for Plan Years beginning after December

31, 1996.




 




1.24.       Fiduciary means any person who (a) exercises any

discretionary authority or discretionary control respecting the management of

the Plan or exercises any authority or control respecting management or the

disposition of its assets, (b) renders investment advice for a fee or other

compensation, direct or indirect, with respect to any monies or other property

of the Plan or has any authority or responsibility to do so, or (c) has any

discretionary authority or discretionary responsibility in the administration

of the Plan, including, but not limited to, the Trustee, the Employer and its

representative body, and the Plan Administrator.




 




1.25.       Five Percent Owner means any

person who owns (or is considered as owning within the meaning of Code section

318) more than five percent (5%) of the outstanding stock of the Employer or

stock possessing more than five percent (5%) of the total combined voting power

of all stock of the Employer, or in the case of an unincorporated business, any

person who owns more than five percent (5%) of the capital or profits interest

in the Employer. In determining the percentage of ownership hereunder,

employers that would otherwise be aggregated under Code section 414(b), (c), or

(m) shall be treated as separate employers.




 




1.26.       Forfeiture means that portion of a Participant’s

Employer Account that is not vested, and occurs on the earlier of:




 




(a)           the distribution of a Former

Participant’s Vested Balance; or




 




(b)                                  the last day of the

Plan Year in which the Participant incurs five (5) consecutive one-year

Breaks-in-Service.




 




Furthermore, for

purposes of paragraph (a) above, in the case of a Participant Separated from

Service whose Vested Balance is zero, said Participant shall be deemed to have

received a distribution of his Vested Balance upon his Severance from

Employment.  Restoration of such amounts

shall occur pursuant to Section 7.03(b)(4). 

In addition, the term Forfeiture shall also include amounts deemed to be

Forfeitures pursuant to any other provision of this Plan.




 




9





























 




Such nonvested amounts

and such other amounts treated as forfeited shall be Forfeitures and shall be

treated in accordance with Section 7.03(a).




 




1.27.       414(q) Compensation, see Section 1.11(c).




 




1.28.       414(s) Compensation, see Section 1.11(d).




 




1.29.       415(c) Compensation, see Section  1.11(b).




 




1.30.       Highly Compensated Employee effective January 1, 1997, means an Employee

described in Code section 414(q) and the Regulations thereunder, and generally

means an Employee who performed services for the Employer during the “determination

year” and is in one or more of the following groups:




 




(a)           Employees

who at any time during the determination year or the look-back

year were Five Percent Owners.




 




(b)           Employees

who received 414(q) Compensation during the look-back year in excess of $80,000 (as

adjusted at the same time and in the same manner as under Code section 415(d),

except that the base period is the calendar quarter ending September 30, 1996).




 




(c)           If

so specified in the Adoption Agreement, at the Employer’s election, Employees

considered in Section 1.30(b) above may be limited to Employees in the Top-Paid

Group during the look-back year.




 




(d)           For

purposes of this Section 1.30 the “determination year” shall be the Plan

Year for which testing is being performed, and the “look-back year” shall be

the immediately preceding twelve-month period. 

The Employer may make a calendar year data election, under which

election the look-back year shall be the calendar year beginning with or

within the look-back

year.  Pursuant to Notice

97-45, the calendar year data election may not be used to determine whether an

Employee is a Highly Compensated Employee under Section 1.30(a) above.




 




(e)           A

Top-Paid Group election under Section 1.30(c) and a calendar year data election

under Section 1.30(d) must be applied consistently to the determination year of all

plans of the Employer, except that the consistency requirement will not apply

to determination

years beginning with or within the 1997 calendar year, and for determination

years beginning on or after January 1, 1998, and before January 1,

2000, satisfaction of the consistency requirement is determined without regard

to any nonretirement plans of the Employer.




 




(f)            The

dollar threshold amounts specified in 1.30(b) above shall be adjusted at such

time and in such manner as is provided in Code section 415(d) and the

applicable Treasury Regulations.




 




10





























 




(g)           In

determining who is a Highly Compensated Employee, Employees who are

non-resident aliens and who received no earned income (within the meaning of

Code section 911(d)(2)) from the Employer constituting United States source

income within the meaning of Code section 861(a)(3) shall not be treated as

Employees.  Additionally, all Affiliated

Employers shall be taken into account as a single Employer and Leased Employees

within the meaning of Code sections 414(n)(2) and 414(o)(2) shall be considered

Employees unless such Leased Employees are covered by a plan described in Code

section 414(n)(5) and are not covered in any qualified plan maintained by the

Employer.  The exclusion of Leased

Employees for this purpose shall be applied on a uniform and consistent basis

for all of the Employer’s retirement plans. 

Highly Compensated Former Employees shall be treated as Highly

Compensated Employees without regard to whether they performed services during

the “determination year.”




 




(h)           With

respect to any Plan Year commencing prior to January 1, 1997, Highly

Compensated Employee means an active Employee if, at any time during the Plan

Year or the immediately preceding Plan Year, such active Employee:




 




(1)  was a Five Percent Owner of the Employer;




 




(2)  received 414(q) Compensation from the

Employer in excess of $75,000 (as adjusted by section 415(d) of the Code);




 




(3)  received 414(q) Compensation from the

Employer in excess of $50,000 (as adjusted by section 415(d) of the Code) and

was a member of the Top Paid Group of Employees during the same Plan Year; or




 




(4)  received 414(q) Compensation from the

Employer in excess of fifty percent (50%) of the limit in effect for such Plan

Year under section 415(b)(1)(A) of the Code and was at any time an officer of

the Employer.




 




If an Employee is

not described in (2), (3) or (4) above for the Plan Year immediately preceding

the Plan Year for which the determination of Highly Compensated Employee is

made, he shall not be considered a Highly Compensated Employee for the determination

year unless he is a member of the group consisting of the 100

Employees paid the greatest Highly Compensated Employee Compensation during the

Plan Year for which the determination is being made.




 




1.31.       Highly Compensated Former Employee means a former

Employee who Separated from Service (or was deemed to have separated) prior to

the “determination year,” performed no Service for the Employer during the

determination year, and was a Highly Compensated Employee in the year of

Severance from Employment or in any “determination year” after attaining age

55.  Notwithstanding the foregoing, an

Employee who Separated from Service prior to 1987 will be treated as a Highly

Compensated Former Employee only if during the separation year (or year

preceding the separation year) or any year after the Employee attains age 55

(or the last year ending before the Employee’s 55th birthday), the Employee

either received 414(q) Compensation in excess of $50,000 or was a Five Percent

Owner.  For purposes of this Section, “determination

year” shall be




 




11





























 




determined in accordance

with Section 1.30.  Highly Compensated

Former Employees shall be treated as Highly Compensated Employees.  The method set forth in this Section for

determining who is a “Highly Compensated Former Employee” shall be applied on a

uniform and consistent basis for all purposes for which the 414(q) Compensation

definition is applicable.




 




1.32.       Highly Compensated Participant  means any Highly

Compensated Employee who is a Participant.




 




1.33.       Hour of Service means:




 




(a)           In general. 

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 Plan Year in which the duties are performed.




 




(b)           If no

duties are performed.  Each

hour for which an Employee is paid, or entitled to payment, by the Employer on

account of a period of time 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 Authorized Absence. No more than 501 Hours of Service shall be credited

under this subsection (b) for a single continuous period, which may extend over

more than one computation period or Plan Year. An Employee is not credited with

any hours under this paragraph (b) for any payment made under a plan maintained

solely for complying with applicable law for worker’s unemployment

compensation, or disability insurance; or for the purpose of reimbursing the

Employee for medical or medically related expenses. Hours under this subsection

(b) shall be calculated and credited pursuant to section 2530.200b-2 of the

Department of Labor Regulations which are incorporated herein by reference.




 




(c)           Back pay. 

Each hour for which back pay, irrespective of mitigation of damages, is

either awarded or agreed to by the Employer. The same hours shall not be

credited both under subsection (a) or (b), as the case may be, and under this

subsection (c). These hours shall be credited to the Employee for the Plan Year

to which the award or agreement pertains, rather than the Plan Year in which

the award, agreement or payment is made.




 




(d)           Employment

with Affiliates.  Hours of Service shall be credited for

employment with Affiliates of the Employer, and any other entity required to be

aggregated with the Employer pursuant to Code section 414(o), and for any

individual considered an Employee under Code section 414(n) and (o).




 




(e)           Special rules for determining a

Break-in-Service.  For Plan Years beginning after 1984, solely

for purposes of determining whether a Break-in-Service has occurred in a

computation period, 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 such Employee but for such absence, or in any

case in which such hours cannot be determined, eight (8) Hours of Service per

day of such absence. For purposes of this paragraph, an absence for maternity

or paternity reasons means an absence (1) by reason of the pregnancy of the

Employee (2) by reason of a birth of a child of the Employee, (3) by reason of

the placement of a child with the Employee in connection with the adoption of

such




 




12





























 




child by such

Employee, or (4) for purposes of caring for such child for a period beginning

immediately following such birth or placement. The Hours of Service credited

under this paragraph shall be credited (1) in the computation period in which

the absence begins if such credit is necessary to prevent a Break-in-Service in

that period, or (2) in all other cases, in the following computation period.




 




(f)            Active

Military Duty.  Any Employee who is a member of the military

reserves of the United States, and who is called into duty, whether voluntarily

or involuntarily, shall be credited 8 Hours of Service for each day he or she

is on active duty, but no more than 40 Hours of Service shall be credited for

any seven day period starting on Sunday and ending on Saturday.




 




(g)           Equivalency

methods.  Hours of Service shall be determined on the

basis of the actual hours for which an Employee is entitled to payment, unless

an equivalency method for counting Hours of Service has been elected in the

Adoption Agreement. The equivalency methods that may be so elected are:




 




(1)  Days

Worked. For each day, an Employee shall be credited with 10 Hours of Service if

he is entitled to be credited for at least one (1) Hour of Service for that

day.




 




(2)  Weeks

Worked.  For each week, an Employee

shall be credited with 45 Hours of Service if he is entitled to be credited for

at least one (1) Hour of Service for that week.




 




(3) 

Semimonthly Payroll Periods Worked. 

For each semimonthly payroll period, an Employee shall be credited with

95 Hours of Service if he is entitled to be credited for at least one (1) Hour

of Service for that period.




 




(4)  Months

Worked.  For each month, an Employee

shall be credited with 190 Hours of Service if he is entitled to be credited

for at least one (1) Hour of Service for that month.




 




(5) 

Earnings.  One of the following

two methods may be used, as applicable.




 




(A) In the case of an Employee whose compensation

is determined on the basis of an hourly rate, he will be credited with the

number of hours equal to his Compensation from time to time during the

computation period divided by the Employee’s hourly rate as in effect at such

times during the computation period, or equal to his Compensation during the

computation period divided by his lowest hourly rate of compensation during

that period, or by the lowest hourly rate of compensation payable to an

employee in the same, or a similar, job classification, reasonably defined; and

870 hours credited under this method shall be treated as equivalent to 1,000 Hours

of Service, and 435 hours credited under this method shall be treated as

equivalent to 500 Hours of Service.




 




(B) In the case of an Employee whose compensation

is determined on a basis other than an hourly rate, and who is paid a fixed

rate for a specified period of time, an hourly rate shall be computed by

dividing his lowest rate of




 




13





























 




compensation

during the computation period for such period of time by the number of hours

regularly scheduled for the performance of duties during such period of time,

or in the case of an Employee without a regular work schedule, it shall be

calculated on a reasonable basis which reflects the average hours worked by the

Employee over a representative period of time; and the Employee shall be

credited with the number of hours equal to his Compensation during the

computation period divided by his lowest hourly rate so determined; and 750

hours credited under this method shall be treated as equivalent to 1,000 Hours of

Service, and 375 hours credited under this method shall be treated as

equivalent to 500 Hours of Service.




 




1.34.       Investment Manager means an entity that (a) has the

power to manage, acquire, or dispose of Plan assets and (b) acknowledges

Fiduciary responsibility to the Plan in writing.  Such an entity must be a person, firm, or corporation registered

as an investment adviser under the Investment Advisers Act of 1940, a bank, or

an insurance company.




 




1.35.       Joint and Survivor Annuity  means an immediate annuity

for the life of the Participant with a survivor annuity for the life of the

Spouse that is not less than 50% (and not more than 100%) of the amount that is

payable during the joint lives of the Participant and Spouse and is the

actuarial equivalent of a single life annuity for the life of the Participant

(also defined as the amount of benefit which can be purchased with the

Participant’s vested Account Balance). 

This annuity may not be terminated or reduced because of the Surviving

Spouse’s remarriage.  The percentage of

the survivor annuity under the Plan shall be 50% (unless a different percentage

is elected by the Employer in the Adoption Agreement).




 




1.36.       Key Employee, effective for Plan Years

beginning on or after December 31, 2001,

means any Employee or former Employee (including any deceased Employee) who at

any time during the Plan Year that includes the Determination Date was an

officer of the Employer having annual Compensation greater than $130,000 (as

adjusted under section 416(i)(1) of the Code for Plan Years beginning after

December 31, 2002), a 5-percent owner of the Employer, or a 1- percent owner of

the Employer having annual Compensation of more than $150,000. For this

purpose, annual Compensation means Compensation within the meaning of section

415(c)(3) of the Code. The determination of who is a Key Employee will be made

in accordance with section 416(i)(1) of the Code and the applicable regulations

and other guidance of general applicability issued thereunder.




 




With respect to any Plan

Year commencing prior to January 1, 2002, Key

Employee, means an Employee as defined in Code section 416(i)(1) and

the regulations thereunder.  Generally,

any Employee or former Employee (as well as each of his Beneficiaries) is

considered a Key Employee if he, at any time during the Plan Year that contains

the Determination Date (as defined in Section 9.01(a)) or any of the preceding

four (4) Plan Years, has been included in one of the following categories:




 




(a)           an officer of the Employer (as that

term is defined within the meaning of the regulations under Code section 416)

having annual 414(q) Compensation greater than 50% of the amount in effect

under Code section 415(b)(1)(A) for any such Plan Year.




 




14





























 




(b)           one of the ten Employees having

annual 414(q) Compensation from the Employer for a Plan Year greater than the

dollar limitation in effect under Code section 415(c)(1)(A) for the calendar

year in which such Plan Year ends and owning (or considered as owning within

the meaning of Code section 318) both more than one-half percent (1/2%)

interest and the largest interests in the Employer.




 




(c)           a Five Percent (5%) Owner of the Employer or

a One

Percent (1%) Owner of the Employer having an annual 414(q) Compensation

from the Employer of more than $150,000. 

One

Percent (1%) Owner means any person who owns (or is considered as

owning within the meaning of Code section 318) more than one percent (1%) of

the outstanding stock of the Employer or stock possessing more than one percent

(1%) of the total combined voting power of all stock of the Employer or, in the

case of an unincorporated business, any person who owns more than one percent

(1%) of the capital or profits interest in the Employer.  In determining percentage ownership

hereunder, employers that would otherwise be aggregated under Code sections

414(b), (c), (m) and (o) shall be treated as separate employers.  However, in determining whether an

individual has “414(q) Compensation” of more than $150,000, 414(q) Compensation

from each employer required to be aggregated under Code sections 414(b), (c),

(m) and (o) shall be taken into account.




 




1.37.       Leased Employee means any person (other than an

Employee of the recipient) who pursuant to an agreement between the recipient

and any other person (“leasing organization”) has performed services for the

recipient (or for the recipient and related persons determined in accordance

with Code section 414(n)(6)) on a substantially full time basis for a period of

at least one (1) year, and such services 

are performed under primary direction or control by the recipient

employer. Contributions or benefits provided a Leased Employee by the leasing

organization which are attributable to services performed for the recipient

employer shall be treated as provided by the recipient employer.  A Leased Employee shall not be considered an

Employee of the recipient if:




 




(a)           such employee is covered by a money

purchase pension plan providing:




 




(1)  a non-integrated employer contribution rate

of at least ten percent (10%) of compensation, as defined in Code section

415(c)(3);




 




(2)  immediate participation; and




 




(3)  full and immediate vesting.




 




(b)           Leased Employees do not constitute

more than 20% of the recipient’s non-highly compensated work force.




 




1.38.       Limitation Year  means

the Plan Year, unless otherwise specified in the Adoption Agreement.




 




1.39.       Matching Contributions means

contributions to the Plan made by the Employer on behalf of a Participant that

are contingent on the Employee’s having entered into a Salary Deferral

Election.




 




15





























 




1.40.       Maximum Permissible Amount, effective

for Plan Years beginning after December 31, 2001




 




(a)                                  means the

lesser of:




 




(i)            $40,000,

as adjusted for increases in the cost-of-living under section 415(d) of the

Code, or




 




(ii)           100

percent of the Participant’s Compensation, within the meaning of section

415(c)(3) of the Code, for the Limitation Year.




 




The 415(c)

Compensation limitation referred to in (ii) above shall not apply to any

contribution for medical benefits (within the meaning of Code section 401(h) or

419A(f)(2)) which are otherwise treated as an Annual Addition under Code

section 415(l)(1) or 419A(d)(2).




 




If a short

Limitation Year is created because of an amendment changing the Limitation Year

to a different 12-consecutive month period, the Maximum Permissible Amount

shall not exceed the defined contribution dollar limitation in (i) above,

multiplied by the following fraction:




 




Number of Months

in the Short Limitation Year




12




 




(b)                                  Maximum Permissible Amount, with

respect to any Plan Year commencing prior to January 1, 2002

means the lesser of:




 




(i)            $30,000,

or such larger amount as may be determined by the Commissioner of the Internal

Revenue Service for the Limitation Year, or




 




(ii)           25%

of the Participant’s Compensation for the Limitation Year.




 




The 415(c)

Compensation limitation referred to in (ii) above shall not apply to any

contribution for medical benefits (within the meaning of Code section 401(h) or

419A(f)(2)) which are otherwise treated as an Annual Addition under Code

section 415(l)(1) or 419A(d)(2).




 




If a short

Limitation Year is created because of an amendment changing the Limitation Year

to a different 12-consecutive month period, the Maximum Permissible Amount

shall not exceed the defined contribution dollar limitation in (i) above,

multiplied by the following fraction:




 




Number of Months

in the Short Limitation Year




12




 




 




16





























 




1.41.       Net Profits means current and accumulated earnings

of the Employer before federal and state taxes and contributions to this or any

other qualified plan.




 




1.42.       Nondeductible Employee Account

means the individual Account of a Participant consisting of the Participant’s

Nondeductible Employee Contributions to the Plan as adjusted for income,

expenses, gains, losses and distributions attributable thereto.




 




1.43.       Nondeductible Employee Contribution

means any Participant after-tax contribution to the Plan other than a Rollover

Contribution or a Plan-to-Plan Transfer.




 




1.44.       Nonhighly Compensated Participant

means any Participant who is not a Highly Compensated Employee.




 




1.45.       Non-Key Employee means any

Employee or former Employee (and his Beneficiaries) who is not a Key Employee.




 




1.46.       Normal Retirement Age shall be 65 years of age

unless otherwise specified in the Adoption Agreement.




 




1.47.       Owner-Employee means a

Self-employed Individual who is the sole proprietor, in the case of a sole

proprietorship. If the Employer is a partnership, Owner-Employee means a

Self-employed Individual who is a partner owning more than ten percent (10%) of

either the capital interest or profit interest of the partnership. The term Owner-Employee,

as used herein, shall be consistent with Code section 401(c)(3).




 




1.48.       Participant means any Employee who

has met the requirements of the Plan to become a Participant and who continues

to be a Participant in the Plan.  A

person shall cease to be a Participant when he has taken a distribution of his

Vested Balance or has died and his Beneficiary has taken a distribution of his

Vested Balance.  All Participants shall

be further classified as follows:




 




(a)           Active Participant means an Employee who meets the requirements of

Sections 2.01 and 2.04(b), or the requirements of Section 2.04(e).




 




(b)           Inactive Participant means an Active Participant who ceases to be an

Employee but who remains an employee of an Affiliate which is not a

Participating Employer, and who has in the Plan a Total Balance which is

greater than zero.  An Inactive

Participant shall continue to be treated the same as an Active Participant in

every respect except that no contributions of any type shall be allocated to

his Accounts with the exception of those to which he may be entitled for the

Plan Year in which he ceases to be an Active Participant.  He shall not be allowed to make any

contributions unless and until he again becomes an Active Participant.




 




(c)           Former Participant means an Active Participant or an Inactive Participant

who is no longer an employee of any Affiliate.




 




1.49.       Plan

means this Plan Document, together with any Adoption Agreement executed by the

Employer, and the related Trust thereunder as well as any subsequent amendments

to the aforementioned documents.




 




17





























 




1.50.       Plan Year means the 12-consecutive month period specified in the

Adoption Agreement.




 




1.51.       Predecessor Employee Account

means the account established and maintained by the Plan Administrator for each

Participant with respect to his interest in the Plan derived from after-tax

mandatory Employee contributions made to another plan of the Employer or an

Affiliate and transferred to this Plan by a merger or otherwise.  A Participant shall be 100% Vested in this

Account, and shall have full rights of withdrawal in accordance with procedures

established by the Administrator.




 




1.52.       Predecessor Employer Account

means the account established and maintained by the Plan Administrator for each

Participant with respect to his interest in the Plan resulting from Employer

contributions made to another plan of the Employer or an Affiliate and

transferred to this Plan by a merger or otherwise. The balance in this account

shall be administered in accordance with all provisions relating to the

Participant’s Account herein, and shall be vested in accordance with the

provisions in the Adoption Agreement and in Article VI, or in the amendment

allowing the merger and in Article VI.




 




1.53.       Protected Benefit(s) means:




 




(a)           Accrued benefit of any Participant, directly or

indirectly.  Plan provisions indirectly

affecting accrued benefits include, for example, provisions relating to Years

of Service and Breaks-in-Service for determining benefit accrual, and to

actuarial factors for determining optional or early retirement benefits.




 




(b)           Early

retirement benefits.  Any early retirement benefit or a retirement

type subsidy.




 




(c)           Optional

form of benefit.  An optional form of benefit is a

distribution form with respect to an Employee’s benefit that is available under

the Plan or any other applicable plan qualified under Code section 401(a) and

is identical with respect to all features relating to the distribution form,

including the payment schedule, timing, commencement, medium of distribution

(e.g., in cash or in-kind), the portion of the benefit to which such

distribution features apply and the election rights with respect to such

optional forms.  To the extent there are

any differences in such features, a plan provides separate optional forms of

benefit.  Differences in amounts of

benefits, methods of calculation, or values of distribution forms do not result

in optional forms of benefit for purposes of this rule.




 




The following

benefits are not optional forms of benefits:  (1) ancillary life insurance protection; (2) accident or health

insurance benefits; (3) social security supplements described in Code section

411(a)(9); (4) the availability of loans (other than the distribution of an

employee’s accrued benefit upon default under a loan); (5) the right to make

Nondeductible Employee Contributions or elective deferrals described in Code

section 402(g)(3); (6) the right to direct investments; (7) the right to a

particular form of investment (e.g., investment in employer stock or securities

or investment in certain types of securities, commercial paper, or other

investment media); (8) the allocation dates for contributions, Forfeitures and

earnings, the time for making contributions (but not the conditions for

receiving an allocation of contributions or Forfeitures for a Plan Year after

such conditions




 




18





























 




have been

satisfied), and the Valuation Dates for Account Balances; (9) administrative

procedures for distributing benefits, such as provisions relating to the

particular dates on which notices are given and by which elections must be

made; (10) rights that derive from administrative and operational provisions,

such as mechanical procedures for allocating investment experience among

Accounts in defined contribution plans; and (11) the availability of financial

hardship withdrawals and the rules and procedures governing such withdrawals;

and (12) any other as may be provided by law, regulation, or court order.




 




1.54.       Qualified Domestic Relations Order means (1) a

qualified domestic relations order, as defined in Code section 414(p) and ERISA

section 206(d), entered after December 31, 1984, or (2) a domestic relations

order entered before January 1, 1985.




 




1.55.       Qualified Election means that term as defined in

Section 8.03(f).  No Qualified Election

shall be required if this Plan is exempted from the provisions of Article VIII.




 




1.56.       Qualified Joint and Survivor

Annuity

means an annuity which is subject to the provisions of Article VIII.




 




1.57.       Qualified Nonelective Contributions

means the Employer’s contributions to the Plan that are not Salary Deferral

Contributions or Matching Contributions, are allocated to Participants’

Accounts that Participants may not elect to receive in cash until distributed

from the Plan, and that are made pursuant to Section 3.11.  Such contributions are subject to the

restrictions on withdrawals set forth in Section 7.13(b), and are immediately

nonforfeitable and 100% vested upon contribution, regardless of the age and

service of the Employee or whether the Employee is employed on a specific date.




 




1.58.       Qualified Matching Contributions

means the Employer Matching Contributions to the Plan that are subject to the

restrictions on withdrawals set forth in Section 7.13(b), and are immediately

nonforfeitable and 100% vested upon contribution, regardless of the age and

service of the Employee or whether the Employee is employed on a specific date,

and are made pursuant to Section 3.11. 

Nonelective Contributions and/or Matching Contributions maybe treated as

elective contributions only if the conditions described in section

1.401(k)-1(b)(5) and section 1.401(m)-1(b)(5) of the Regulations are satisfied.




 




1.59.       Rollover Account (related or unrelated) means the

individual Account of an Employee consisting of the Employee’s Rollover

Contribution to the Plan, and income, expenses, gains, losses and distributions

attributable thereto.




 




1.60.       Rollover Contribution (related or unrelated) means

a contribution of a qualifying rollover distribution as described in Code

section 402(c)(4) or 408(d)(3) which is distributed to an individual, and

contributed by such individual to the Plan in such manner that such portion of

the qualifying rollover distribution so contributed to the Plan does not

constitute an Annual Addition. A rollover is a related rollover if the monies

are rolled over from a plan that is or was sponsored by the Employer or an

Affiliate.  All other Rollover

Contributions are unrelated Rollover Contributions.




 




1.61.       Salary Deferral Account means the individual Account

of a Participant consisting of his Salary Deferral Contributions and, if

applicable, any Qualified Nonelective Contributions (together




 




19





























 




with portions of certain

Plan-to-Plan Transfers identified hereunder) and income, expenses, gains,

losses, and distributions attributable thereto.




 




1.62.       Salary Deferral Election means an election by a

Participant to defer the receipt of Compensation pursuant to a Salary Deferral

Agreement as described in Section 3.03 and adjustments relating thereto, and to

have such deferred amount contributed to the Plan by the Employer on behalf of

the Participant as a Salary Deferral Contribution.




 




1.63.       Self-employed Individual means an individual (as

provided for in Code section 401(c)(1)) who has Earned Income (as defined in

Code sections 401(c)(2) and 414(s)) for the taxable year from the trade or

business for which the Plan is established; also, an individual who would have

had Earned Income but for the fact that the trade or business had no Net

Profits for the taxable year.




 




1.64.       Separation from Service  will no longer apply as

of January 1, 2002 and is replaced with the term Severance from Employment

wherever it appears in the document. 

For events prior to January 1, 2002, Separation from Service applies and

should be inserted in the document wherever Severance from Employment now

appears. Separation from Service means an Employee’s voluntary or involuntary

termination of employment with the Employer and its Affiliates, and any

Participating Employers and their Affiliates. 

In the event of a sale by the Employer or a Participating Employer to a

purchaser who is not an Affiliate of the Employer or a Participating Employer

of (i) all or substantially all of the assets used by the Employer or

Participating Employer in a trade or business or (ii) the Employer’s or a

Participating Employer’s interest in a subsidiary, a Separation from Service

shall occur on the date of such sale with respect to an Employee who continues

in employment with the corporation or other person acquiring such assets or

with such subsidiary, as the case may be, unless the purchaser agrees in

connection with the sale to be substituted for the Employer as the sponsor of

the Plan or to establish a defined contribution plan that is qualified under

Code section 401(a) to which Plan assets and the amount of the employee’s

benefit under the Plan shall be transferred. Notwithstanding the above, a

Separation from Service shall not occur on the date of sale in the case of any

Employee with respect to whom assets and liabilities attributable to his

benefits under the Plan are transferred to a plan of the new employer

regardless of whether it is a new plan or a pre-existing plan of the former

employer.  Moreover, no Separation from

Service shall be treated as having occurred for purposes of this Plan if the

Employee is employed by an employer that, with respect to the Employer or any

Participating Employer, is (1) a corporation which is a member of a controlled

group of corporations with the Employer or any Participating Employer (within

the meaning of Code section 414(b)), (2) a partnership, joint venture or other

business organization (whether or not incorporated) which is under common

control or is affiliated with the Employer or a Participating Employer (within

the meaning of Code section 414(c)), or (3) any member of an affiliated service

group within the meaning of Code section 414(m) of which the Employer or any Participating

Employer is a member, or any other entity required to be aggregated with the

Employer pursuant to Code section 414(o).




 




1.65.       Service means any period of time during which an Employee is employed

by the Employer, including any period of Authorized Absence.  Where the Employer maintains the plan of a

predecessor employer, Service for the predecessor employer shall be treated as

Service for the Employer. If elected by the Employer in the Adoption Agreement,

Service also includes a period of employment for such designated unrelated

employers, and for such designated periods of time.




 




20





























 




1.65(a)   Severance

from Employment, effective for

Plan Years beginning after December 31, 2001, means an Employee’s

voluntary or involuntary termination of employment with the Employer and its

Affiliates, and any Participating Employers and their Affiliates.  Notwithstanding the above, a Severance from

Employment shall not occur on the date of sale in the case of any Employee with

respect to whom assets and liabilities attributable to his benefits under the

Plan are transferred to a plan of the new employer regardless of whether it is

a new plan or a pre-existing plan of the former employer.  Moreover, no Severance from Employment shall

be treated as having occurred for purposes of this Plan if the Employee is

employed by an employer that, with respect to the Employer or any Participating

Employer, is (1) a corporation which is a member of a controlled group of

corporations with the Employer or any Participating Employer (within the

meaning of Code section 414(b)), (2) a partnership, joint venture or other

business organization (whether or not incorporated) which is under common

control or is affiliated with the Employer or a Participating Employer (within

the meaning of Code section 414(c)), or (3) any member of an affiliated service

group within the meaning of Code section 414(m) of which the Employer or any

Participating Employer is a member, or any other entity required to be

aggregated with the Employer pursuant to Code section 414(o).




 




1.66.       Shareholder-employee means an

individual who is a shareholder of the Employer, if the Employer is an S

corporation as defined in Code section 1361, and who owns more than five percent

(5%) of the combined voting power of all classes of common stock of the

Employer eligible to vote.




 




1.67.       Spouse or Surviving Spouse means the Spouse or

Surviving Spouse of the Participant.  A

former Spouse shall be treated as the Spouse or Surviving Spouse of the

Participant if specifically stated in a Qualified Domestic Relations

Order.  To the extent that a Qualified

Domestic Relations Order does not redesignate a former spouse as the

beneficiary of the Participant and the divorce decree is finalized, any prior

beneficiary designation of the ex-spouse by a Participant shall be null and

void.




 




1.68.       Top Paid Group means the top 20% of Employees who

performed Service for the Employer during the applicable year, ranked according

to the amount of 414(q) Compensation received from the Employer during such

year.  All Affiliated Employers shall be

taken into account as a single employer, and Leased Employees within the

meaning of Code sections 414(n)(2) and 414(o)(2) shall be considered Employees

unless such Leased Employees are covered by a plan described in Code section

414(n)(5) and are not covered in any qualified plan maintained by the Employer

or an Affiliate.  Employees who are

non-resident aliens and who received no earned income (within the meaning of

Code section 911(d)(2)) from the Employer constituting United States source

income within the meaning of Code section 861(a)(3) shall not be treated as

Employees.  Additionally, for the

purpose of determining the number of active Employees in any year, the

following additional Employees shall also be excluded; however, such Employees

shall still be considered for the purpose of identifying the particular

Employees in the Top Paid Group:




 




(a)           Employees

with less than six (6) months of service;




 




(b)           Employees who normally work less than

17-1/2 hours per week;




 




(c)           Employees who normally work less than

six (6) months during a year; and




 




21





























 




(d)           Employees who have not yet attained

age 21.




 




In addition, if 90% or

more of the Employees of the Employer are covered under agreements the

Secretary of Labor finds to be collective bargaining agreements between

Employee representatives and the Employer, and the Plan covers only Employees

who are not covered under such agreements, then Employees covered by such

agreements shall be excluded from both the total number of active Employees as

well as from the identification of particular Employees in the Top Paid Group.




 




The foregoing exclusions

set forth in this Section shall be applied on a uniform and consistent basis

for all purposes for which the 414(q) Compensation definition is applicable.




 




1.69.       Total Balance means the entire interest of a

Participant or Employee in his Accounts and shall be calculated, as of any

given date, as follows:




 




(a)           the balance in all of his Accounts as

of the immediately preceding Valuation Date (if any); plus




 




(b)           any Discretionary, Matching, Salary

Deferral, Rollover or Nondeductible Employee Contribution(s), or any

Plan-to-Plan Transfer(s), refunds, Forfeitures (if applicable), or other

amounts to have been credited to his Accounts since the immediately preceding

Valuation Date (if any); minus




 




(c)           the sum of all withdrawals, payments,

distributions, premiums or fees paid since the immediately preceding Valuation

Date.




 




1.70.       Trustee means the initial trustee or trustees, or any successor

trustee or trustees at any time acting under this Plan.




 




1.71.       Trust Fund means the fund for the Employer held by

the Trustee under the provisions of this Plan.




 




1.72.       Valuation Date means the last day of each Plan Year

unless the Plan Administrator establishes, in addition, one or more special

Valuation Dates.




 




1.73.       Vested Balance means that amount in a Participant’s

Accounts that is nonforfeitable and shall be calculated, on any given date, as

follows:




 




(a)           the Participant’s Total Balance;

minus




 




(b)           any nonvested amounts in the

Participant’s Employer Account that would be subject to Forfeiture if the

Participant were to Separate from Service as of that date.




 




22





























 




1.74.       Year of Service shall be defined as one of the

following, as set forth in the Adoption Agreement:




 




(a)           1,000

Hours of Service Method means the computation period of

12-consecutive months, herein set forth, during which an Employee has been

credited with at least 1,000 Hours of Service; or




 




(b)           Elapsed

Time Methodmeans 12-consecutive months of Service.




 




23





























 




ARTICLE II.  ELIGIBILITY AND PARTICIPATION.




 




2.01.       Eligibility.  Any

Employee who has satisfied the eligibility requirements specified in the

Adoption Agreement shall be eligible to participate hereunder as of the date he

has satisfied such requirements. 

However, if this is an amended and restated plan, any Employee who was a

Participant in the Plan prior to the effective date of such amendment and

restatement shall continue to participate in the Plan.  The Employer shall give each prospective

Eligible Employee written notice of his eligibility to participate in the Plan

on or about the first Entry Date in which he has satisfied the Eligibility

Requirements specified in the Adoption Agreement.




 




2.02.       Eligibility Computation Periods.  For purposes of eligibility for

participation, the initial computation period shall begin with the date on

which the Employee first performs an Hour of Service.  If any Employer becomes an Affiliate by reason of acquisition,

the initial computation period shall begin with the date on which the Employee

first performed an Hour of Service with the acquired Employer, unless otherwise

specified in the Adoption Agreement. 

The eligibility computation period beginning after a one-year

Break-in-Service shall be measured from the date on which an Employee again

performs an Hour of Service.




 




If Breaks-in-Service and

Years of Service are computed under the 1,000 Hours of Service Method, then the

eligibility computation period shall shift to the Plan Year which includes the

first anniversary of the date on which the Employee first performed an Hour of

Service.  An Employee who is credited

with the required Hours of Service (as set forth in the Adoption Agreement) in

both the initial computation period (or the computation period beginning after

a one-year Break-in-Service) and the Plan Year which includes the first

anniversary of the date on which the Employee first performed an Hour of

Service, shall be credited with two (2) Years of Service for purposes of

eligibility to Participate.




 




If Breaks-in-Service and

Years of Service are computed under the Elapsed Time Method, then subsequent

computation periods shall begin on the anniversary date of the initial

computation period.




 




2.03.       Years of Service. 

All Years of Service with the Employer are counted for purposes of

satisfying the eligibility requirements.




 




Years of Service with any

corporation, trade or business which is a member of a controlled group of

corporations or under common control (as defined by Code sections 414(b) and

414(c)) or is a member of an affiliated service group (as defined by Code

section 414(m)) shall be recognized, or any other entity required to be

aggregated with the Employer pursuant to Code section 414(o).  Service shall also be credited for an

Employee to the extent required under Code sections 414(n) or (o), where such

Employee is considered an Employee of an Affiliate, and as may be provided in

the Adoption Agreement.




 




2.04.       Commencement and Termination of

Participation.




 




(a)           Application

for Participation.  In order to become a Participant hereunder,

each Eligible Employee shall make application to the Employer for participation

in the Plan and




 




24





























 




agree to the terms

hereof. Upon the acceptance of any benefits under this Plan, such Employee

shall automatically be deemed to have made application and shall be bound by

the terms and conditions of the Plan and all amendments hereto.




 




(b)           Effective Date of Participation.  Each Employee shall become a Participant as

of the next Entry Date subsequent to the Employee fulfilling the eligibility

requirements specified in the Adoption Agreement of this Plan.




 




(c)           Determination

of Eligibility.  The Plan Administrator shall determine the

eligibility of each Employee for participation in the Plan based upon

information furnished by the Employer. 

Such determination shall be conclusive and binding upon all persons, as

long as the same is made pursuant to the Plan and the ERISA.  Such determination shall be subject to

review per Section 7.14.




 




(d)           Forms

for Participation.  The Plan Administrator shall notify each

Employee who becomes a Participant and provide him with such forms which are

necessary for the payment of benefits and designation of a Beneficiary.  Before any contributions shall be made to

the Plan on behalf of a Participant, the Participant must execute such forms as

to evidence a Salary Deferral Election. If an Employee who is not a Participant

wishes to make a Rollover Contribution to the Plan, or a Plan-to-Plan Transfer

is proposed to be made to the Plan on his behalf, such Employee must execute

such forms as the Plan Administrator shall require prior to any such Rollover

Contribution or Plan-to-Plan Transfer being accepted by the Plan Administrator

on behalf of the Plan.  Provided,

however, that the Adoption Agreement allows such Rollover Contributions and/or

Plan-to-Plan Transfers.




 




(e)           Reemployment. 

A Participant or former Participant who Separates from Service with the

Employer, and who subsequently is reemployed by the Employer, shall become a

Participant and be eligible to participate in the Plan as of his reemployment

commencement date.




 




(1)  In the event such Employee returns to

Service prior to incurring a one-year Break-in-Service, such Employee shall

participate immediately upon reemployment.




 




(2)  In the event such Employee returns to

Service after incurring a one-year Break-in-Service, such Employee shall be

eligible to participate upon the earlier of the next Entry Date or the date a

new Salary Deferral Agreement may be executed.




 




(f)            Termination

of Eligibility.




 




(1) In the event a Participant shall go from a

classification of an Eligible Employee to an ineligible Employee, such Former

Participant shall continue to vest in his interest in the Plan for each Year of

Service completed while a noneligible Employee, until such time as his

Participant’s Account shall be forfeited or distributed pursuant to the terms

of the Plan. Additionally, his interest in the Plan shall continue to share in

the earnings of the Trust Fund.




 




25





























 




(2) In the event a Participant is no longer a

member of an eligible class of Employees and becomes ineligible to participate

but has not incurred a one-year Break-in-Service, such Employee will

participate immediately upon returning to an eligible class of Employees.




 




(3) In the event an Employee who is not a member

of an eligible class of Employees becomes ineligible to participate and has

incurred a one-year Break-in-Service, such Employee shall be eligible to

participate upon the next date a Salary Deferral Agreement may be executed upon

returning to an eligible class of Employees.




 




(g)           Inclusion of an Ineligible Employee.  If, in any Plan Year, any person who should

not have been included as a Participant in the Plan is erroneously included and

discovery of such incorrect inclusion is not made until after a contribution

for the year has been made, the Employer shall not be entitled to recover the

contribution made with respect to the ineligible person regardless of whether

or not a deduction is allowable with respect to such contribution.  In such event, the amount contributed with

respect to the ineligible person shall constitute a Forfeiture (except for

Salary Deferral Contributions which shall constitute an excess elective

deferral amount described in Code sections 401(a)(30) and 402(g)(1) and (2),

and which shall be distributed to the ineligible person, adjusted for any gain

or loss) for the Plan Year in which the discovery is made.




 




(h)           Omission

of an Eligible Employee. 

If, in any Plan Year, any person who should be included as a Participant

in the Plan is erroneously omitted and such omission is not discovered until

after a contribution is made by the Employer for the Plan Year, the Employer

shall make a subsequent contribution if necessary after the application of

Article III.  Such contribution shall be

made regardless of whether or not it is deductible in whole or in part in any

taxable year under the applicable provisions of the Code.  Such contribution shall not be adjusted for

any unrealized gain or loss.  Such

contribution may be made from Forfeitures if the Adoption Agreement permits the

use of Forfeitures to either reinstate previously forfeited amounts or to

reduce the Employer’s contributions under the Plan.  However, this paragraph shall not apply to Salary Deferral

Contributions.




 




2.05.       Acquisitions.




 




(a)           In general.  If

an employer becomes a member of a company or group described in subsection (b),

(c), (m), or (o) of Code section 414 by reason of acquisition of or by the

Employer, and if the Employer so approves, such acquired employer shall adopt

the Plan as a Participating Employer within the time period described in

subparagraph (b) below, unless such employer can be excluded from adopting the

Plan for a reason permitted under Code section 410(b), and provided further

that said employer elects not to adopt the Plan as a Participating Employer.




 




(b)           Entry Date. 

The acquired Employer shall adopt the Plan and the Employer shall set an

Entry Date for its eligible Employees within the Transition Period. The term Transition

Period means the period:




 




(1)  beginning on the date such company or group is acquired, and




 




26





























 




(2)  ending on the last day of the first Plan Year beginning

after the date of such change.




 




(c)           Eligibility

Requirements.  On the first Entry Date set by the Employer

for any acquired company or group referred to in  Section 2.05(a), the eligibility requirements that were

applicable for the initial enrollment shall be applicable for all persons who

are members of such company or group, and for all succeeding Entry Dates, the

eligibility requirements applicable after the initial enrollment shall be

applicable for all persons who are members of such company or group.




 




2.06.       Employees Excluded From Participation.  Unless otherwise provided in the

Adoption Agreement, the Employees not eligible to participate in the Plan shall

be those Employees who:




 




(a)           have not attained the age specified

in the Adoption Agreement;




 




(b)           have not completed the period of

Service specified in the Adoption Agreement;




 




(c)           are included in a unit of Employees

covered by a collective bargaining agreement between the Employer and Employee

representatives (for this purpose, “Employee representatives” does not include

any organization more than half of whose members are Employees who are owners,

officers, or executives of the Employer), if retirement benefits were the

subject of good faith bargaining and if two percent (2%) or less of the Employees

who are covered pursuant to that agreement are professionals as defined in

section 1.410(b)-9 of the Regulations;




 




(d)           are nonresident aliens (within the

meaning of Code section 7701(b)(1)(B)), and who receive no Earned Income

(within the meaning of Code section 911(d)(2)) from the Employer (or an

Affiliate), which constitutes income from sources within the United States

(within the meaning of Code section 861(a)(3)).




 




27





























 




ARTICLE III.  CONTRIBUTIONS.




 




3.01.       Discretionary Contributions.




 




(a)           In general. 

If elected by the Employer in the Adoption Agreement, the Employer may

make Discretionary Contributions to the Plan in such amounts and at such times

as the Employer deems appropriate.  The

amount of any such Contribution shall be determined annually by the Employer on

a discretionary basis, unless otherwise stipulated in the Adoption Agreement.




 




(b)           Contribution

date.  Any Discretionary Contribution for a Plan

Year shall be contributed and paid over to the Trustee not later than the date

prescribed by law for filing of the Employer’s federal income tax return

(including extensions thereof) for the Employer’s taxable year ending with or

within such Plan Year.




 




(c)           Miscellaneous

rules.  In determining the amount of Discretionary

Contributions to the Plan, the Employer shall be entitled to rely upon an

estimate of the total Compensation for all Participants, and of the amounts

contributed by it.  The Employer’s

determination of such Discretionary Contributions shall be binding on all

Participants, the Plan Administrator and the Trustee.




 




3.02.       Salary Deferral Election. 

Each Participant may elect to defer receipt of his

Compensation, up to a limit specified in the Adoption Agreement and the other

provisions of this Plan, and to have that amount withheld from amounts due to

him from the Employer, paid to the Plan and credited to the Participant’s

Salary Deferral Account.  This election

shall be made as follows: For the first Plan Year following or coincident with the

Effective Date of this Plan (if this is a newly established plan), the election

shall be made as soon as administratively practicable and shall be valid for

the remainder of the Plan Year. Thereafter, the election shall be in effect for

the period of time designated in the Salary Deferral Agreement, and shall be

subject to the provisions of Sections 3.03 and 3.04.  The availability of elective deferrals (Salary Deferral

Contributions) under the Plan shall not discriminate in favor of Highly

Compensated Employees.




 




If provided for in

the Adoption Agreement, the Employer may automatically defer a percentage of

Compensation identified in the Adoption Agreement for any Employee eligible to

participate who (1) has not made an election to defer a portion of Compensation

and (2) has not affirmatively opted out of the Plan.  Participants subject to this automatic enrollment process will be

given prior written notice and a reasonable opportunity to take affirmative

action to either elect to defer a portion of Compensation or elect not to

participate in the Plan.




 




3.03.       Salary Deferral Agreement, this

section is effective for Plan Years beginning after December 31, 2001




 




(a)           In general. 

Each Plan Year, a

Participant may elect to enter into a written Salary Deferral Agreement with

the Employer which shall be applicable to a specified number of 




 




28





























 




payroll

periods within the Plan Year following the date of such agreement.  The terms of any such Salary Deferral

Agreement shall provide that the Participant agrees to accept a reduction in

salary from the Employer equal to any whole percentage of his Compensation per

payroll period, or a fixed dollar amount, or some combination thereof, not to

exceed either:  (1) the percentage

specified in the Adoption Agreement for Salary Deferral Agreement for the Plan

Year or (2) the dollar limit contained in Code section 402(g) in effect at the

beginning of the calendar year. A Participant’s Salary Deferral Contributions

for a calendar year under the Plan, plus the Participant’s elective

contributions under all other plans, contracts and arrangements of the

Employer, shall not exceed the limit imposed by Code section 402(g) for the

taxable year beginning in such calendar year, except to the extent permitted

under Section 3.17 of the Plan and section 414(v) of the Code, if

applicable.  In consideration of such

agreement, the Employer shall make a Salary Deferral Contribution to the

Participant’s Salary Deferral Account on behalf of the Participant for such

Plan Year in an amount equal to the total amount by which the Participant’s

Compensation from the Employer was reduced during the Plan Year pursuant to

Salary Deferral Agreement.




 




(b)           Governing

rules.  Salary Deferral Agreement shall be governed

by the following:




 




(1)  A

Salary Deferral Agreement shall apply to each payroll period during which an

effective Salary Deferral Agreement is on file with the Employer and shall

apply to the Plan Year.




 




(2)  Unless

otherwise provided in the Adoption Agreement, a Salary Deferral Agreement shall

be subject to change twice each Plan Year. 

First, for the six-month period beginning on the first day of the Plan

Year and second, for the six-month period beginning on the first day of the

Plan Year’s semi-annual anniversary. 

However, a Salary Deferral Agreement may be canceled prospectively at

any time.




 




(3)  Unless

otherwise specified in the Adoption Agreement, if a Participant becomes

ineligible for the Plan because of a change in job classification, the Salary

Deferral Agreement shall be revoked effective the date of such change.




 




(4)  An

Employee who has become a Participant as a result of the application of Section

2.04(f) to his circumstances, shall be eligible to establish a Salary Deferral

Agreement on or about the first Entry Date following his change of status.




 




(5)  If

provided for in the Adoption Agreement, a separate Salary Deferral Agreement

shall apply to such portion of a Participant’s Compensation as shall be paid as

bonus amounts, as designated or identified in the Adoption Agreement.  In the event that the Adoption Agreement

provides for a separate Salary Deferral Agreement be applicable for any such

bonus amounts, such separate Salary Deferral Agreement may be provided for in a

separate form or in the same form as the Salary Deferral Agreement which is

applicable for Compensation not paid as a bonus amount.




 




(c)           Time of Payment of Salary Deferral

Contributions.  Salary Deferral Contributions accumulated

through payroll deductions shall be paid to the Trustee as of the earliest date

on




 




29





























 




which such

contributions can reasonably be segregated from the Employer’s general assets,

but in any event within fifteen (15) business days of the month after the month

in which the contributions are received by the Employer.  This provision does not apply to transfers

from nonqualified plans.  The provisions

of Department of Labor Regulations section 2510.3-102 are incorporated herein

by reference.  Furthermore, any

additional Employer contributions which are allocable to the Participant’s

Salary Deferral Account for a Plan Year shall be paid to the Plan no later than

the 12-month period immediately following the close of such Plan Year.




 




3.04.       Salary Deferral Agreement

Limitations.




 




(a)           Employer’s right to amend the Salary

Deferral Agreement.  The Employer may limit, revoke, or amend its

agreement to make tax-deferred contributions under Section 3.03 on behalf of

any Participant at any time, but only if it determines that such limitation,

revocation or amendment is necessary under one of the following circumstances:




 




(1)  to

insure that any nondiscrimination test under Article III is met for such Plan

Year; or




 




(2)  to

insure that a Participant’s Annual Addition for any Limitation Year shall not

exceed the Maximum Permissible Amount; or




 




(3)  that

the individual limit on Salary Deferral Contributions described in Section 3.06

is not exceeded.




 




(b)           Determining

taxable income.  If a Participant is prevented from making a

portion of his tax-deferred savings contributions due to a permissible

limitation, revocation or amendment by the Employer, such portion shall be

considered taxable income to the Participant in the tax year for which the

contribution was made and after appropriate taxes have been withheld shall be

returned to the Participant.




 




3.05.       Actual Deferral Percentage Test.




 




(a)           In general. 

For each Plan Year, the total contributions to a Participant’s Salary

Deferral Account shall satisfy one of the following tests pursuant to Code

section 401(k)(3) and section 1.401(k)-1(b)(2) of the Regulations, which are

herein incorporated by reference:




 




(1)  The

Actual Deferral Percentage for the Highly Compensated Participant Group shall

not be more than the Actual Deferral Percentage of the Nonhighly Compensated

Participant Group multiplied by 1.25; or




 




(2)  The

excess of the Actual Deferral Percentage for the Highly Compensated Participant

Group over the Actual Deferral Percentage for the Nonhighly Compensated Participant

Group shall not be more than two percentage points. Additionally, the Actual

Deferral Percentage for the Highly Compensated Participant Group shall not

exceed the Actual Deferral Percentage for the Nonhighly Compensated Participant

Group multiplied by 2.




 




30





























 




(b)           Definition of Actual Deferral

Percentage.  For the purposes of this Section 3.05,

Actual Deferral Percentage means, with respect to the Highly Compensated

Participant Group and Nonhighly Compensated Participant Group for a Plan Year,

the average of the ratios, calculated separately for each Participant in such

group (each Participant’s “Actual Deferral Ratio”) and expressed as a

percentage, of the amount of Salary Deferral Contributions allocated to each

Participant’s Salary Deferral Account (unreduced by any relevant distributions)

for such Plan Year, to such Participant’s 414(s) Compensation for such Plan

Year, and shall be calculated to the nearest one-hundredth of one percent

(0.01%) of a Participant’s 414(s) Compensation.




 




(c)           Prior Year Testing or Current Year

Testing Data.  Effective

for Plan Years beginning after December 31, 1996, the Actual Deferral

Percentage of the Nonhighly Compensated Participant Group shall be the

preceding Plan Year data (“Prior Year Testing”). The Employer may elect to use

the Plan Year (“Current Year Testing”) rather than the Prior Year Testing

except that if the Current Year Testing election is made, it may not be changed

unless the Employer satisfies the requirements for changing to Prior Year

Testing as set forth in Internal Revenue Service Notice 98-1 (or superseding

guidance).




 




In the case of a

Plan’s first Plan Year (other than a successor plan), the amount taken into

account as the Actual Deferral Percentage of the Nonhighly Compensated

Participant Group for the Prior Year Testing shall be 3%, unless the Employer

elects to use Current Year Testing and, therefore, uses the Actual Deferral

Percentage of the Nonhighly Compensated Participant Group during the first Plan

Year.




 




Under transition

relief provided by Internal Revenue Service Notice 97-2, the Employer may elect

to use the Current Year Testing method for the 1997 Plan Year, and will be

permitted to use Prior Year Testing for the 1998 and 1999 Plan Year without

receiving approval from the Internal Revenue Service.




 




The Employer shall

elect the Prior Year Testing or Current Year Testing method in the Adoption

Agreement. The Employer  may elect to

change the testing method as provided for in Internal Revenue Service Notice

98-1 or its subsequent modification.




 




(d)           Actual Deferral Percentage Test Safe

Harbor Contributions.  An

Employer shall be treated as satisfying the Actual Deferral Percentage Test

under Code section 401(k)(3)(A)(ii) if:




 




(1)           The Employer makes Matching

Contributions on behalf of each Nonhighly Compensated Participant and, at the

Employer’s discretion, to the Highly Compensated Employees in an amount equal

to:




 




(A)  100% of the Salary Deferrals of the

Nonhighly Compensated Participant to the extent such Matching Contributions do

not exceed 3% of the Participant’s Compensation, and 50% of the Salary

Deferrals of the Nonhighly Compensated Participant to the extent that such

Salary Deferrals exceed 3% but do not exceed 5% of the Participant’s Compensation.




 




31





























 




(B)  Notwithstanding the above, an Employer shall

not satisfy the Actual Deferral Percentage Test under this nondiscrimination

safe harbor if the rate of Matching Contribution with respect to any Salary

Deferrals of a Highly Compensated Employee at any rate of Salary Deferral is

greater than that with respect to a Nonhighly Compensated Participant.




 




(C)  The Plan shall not fail to satisfy the

nondiscrimination safe harbor under Section 3.05(d)(1) if (i) the rate of the

Employer’s Matching Contribution does not increase as an Participant’s rate of

Salary Deferrals increase, and (ii) the aggregate amount of Matching

Contributions at such rate of Salary Deferral is at least equal to the aggregate

amount of Matching Contributions which would be made if Matching Contributions

were made on the basis of the percentages in Section 3.05(d)(1)(A) above.




 




(2)           As an alternative to the

nondiscrimination safe harbor in Section 3.05(d)(1) above the Employer may

satisfy the nondiscrimination safe harbor if the Employer is required, without

regard to whether the Participant makes a Salary Deferral, to make a

contribution to a defined contribution plan, on behalf of each Nonhighly

Compensated Participant, in an amount equal to at least 3% of the Participant’s

Compensation.




 




(3)           Each Employee eligible to participate

in the Plan is, within a reasonable period before any year, given written

notice of the Employee’s rights and obligations under the nondiscrimination

safe harbor which (A) is sufficiently accurate and comprehensive to apprise the

Employee of such rights and obligations, (B) is written in a manner calculated

to be understood by the average Employee eligible to participate; and (C) each

Eligible Employee has at least 30 days following receipt of the notice to make

or modify their Salary Deferral Agreement.




 




(4)           The Employer contributions made under

Section 3.05(d)(1) or 3.05(d)(2) are not distributable to Participants or their

Beneficiaries until Severance from Employment, death or Disability or

termination of  the Plan or disposition

of assets or subsidiary, and the Participant’s right to his accrued benefit

derived from Employer contributions is nonforfeitable at all times.




 




(e)           Two or

more cash or deferred plans. 

If two (2) or more plans which include cash or deferred arrangements are

considered one plan for the purposes of Code section 401(a)(4) or 410(b) (other

than the average benefits test

under Code section 410(b)(2)(A)(ii), as in effect for Plan Years beginning

after December 31, 1988), the cash or deferred arrangement included in such

plans may be treated as one arrangement for purposes of determining whether or

not such arrangements satisfy Code sections 401(a)(4), 410(b) and 401(k). In

such a case, the cash or deferred arrangements shall be treated as one

arrangement and as one plan for purposes of this Section and Code sections

401(a)(4), 410(b) and 401(k).  In the

event  that two or more plans of the

Employer which include cash or deferred arrangements are permissively

aggregated for purposes of Code section 401(k), such aggregated plans must

satisfy this Section, and Code sections 401(k), 401(a)(4) and 410(b) as though

such plans were a single plan.  For Plan

Years beginning after December 31, 1989, plans shall be 




 




32





























 




aggregated under

this paragraph (f) only if they have the same plan year and use the same Actual

Deferral Percentage Testing method. 

Notwithstanding the above, for Plan Years beginning after December 31,

1988, an employee stock ownership plan described in Code section 4975(e)(7) may

not  be combined with this Plan for

purposes of determining whether the employee stock ownership plan or this Plan

satisfy this Section and Code sections 401(a)(4), 410(b) and 401(k).




 




(f)            Special rule for Highly Compensated

Participants.  For

the purposes of this Section, if a Highly Compensated Participant is a

Participant under two or more cash or deferred arrangements (other than a cash

or deferred arrangement which is part of 

an employee stock ownership plan as defined in Code section 4975(e)(7)

for Plan Years beginning after December 31, 1988) of the Employer or an

Affiliate, all such cash or deferred arrangements shall be treated as one cash

or deferred arrangement for the purpose of determining the Actual Deferral

Percentage with respect to such Highly Compensated Participant.  However, for Plan Years beginning after

December 31, 1988, if the cash or deferred arrangements have different Plan

Years, this paragraph shall be applied by treating all cash or deferred

arrangements ending with or within the same calendar year as a single

arrangement.




 




3.06.       Individual Limitation on Salary

Deferral Contributions.




 




(a)           Elective Deferrals or Salary Deferrals

 shall mean any

Employer Contributions made to the Plan at the election of the Participant, in

lieu of cash Compensation, and which was not currently available to the Participant at the time of the election

to defer, and shall include contributions made pursuant to a Salary Deferral

Agreement or other deferral mechanism. 

A Participant’s Elective Deferrals for any taxable year are the sum of

all employer contributions made on behalf of such Participant pursuant to any

qualified cash or deferred arrangement as described in Code section 401(k), any

Simplified Employee Pension Plan cash or deferred arrangement as defined in

Code section 408(k) to the extent such contributions are not includible in the

individual’s gross income for the taxable year on account of Code section

402(h)(1)(B), any eligible deferred compensation plan under Code section 457,

any plan as described under Code section 501(c)(18), and any employer

contributions made on behalf of a Participant for the purchase of an annuity

contract under Code section 403(b) pursuant to a salary deferral agreement.




 




For purposes of

determining the dollar limitation under Code section 402(g), any deferrals

properly distributed as excess Annual Additions or returned as Excess

Contributions shall not be included.




 




(b)           Excess Deferrals or Excess Salary

Deferralsshall mean those Elective Deferrals that are includible in a

Participant’s gross income to the extent such Participant’s Elective Deferrals

for a calendar year exceed the

dollar limitation under Code section 402(g), as determined by the Secretary of

the Treasury for a calendar year.  Such

limitation shall apply to the individual Participant and shall apply to all

qualified cash or deferred arrangements, as described in Code section 401(k),

any Simplified Employee Pension Plan cash or deferred arrangement as defined in

Code section 408(k) to the extent such contributions are not includible in the

individual’s gross income for the taxable year on account of Code section

402(h)(1)(B), any eligible deferred compensation plan under Code section 457,

any plan as




 




33





























 




described under

Code section 501(c)(18), and any employer contributions made on behalf of a

Participant for the purchase of an annuity contract under Code section 403(b)

pursuant to a salary deferral agreement.




 




(c)           Date when Excess Deferrals are to be

distributed.  For any individual who has Excess

Deferrals or Excess Salary Deferrals under this Plan, not later than the first April

15 following the close of the individual’s taxable year, the Plan Administrator

shall distribute to such individual the amount of his Excess Deferral (and any

income allocable to such amount).




 




(d)           Designation of Excess Deferrals.  An individual who has Excess Deferrals for a

taxable year may receive a corrective distribution of all or a portion of such

deferrals during such taxable year or by April 15 of the next taxable

year.  Such corrective distribution may

be made only if all of the following conditions are satisfied:




 




(1)  The

individual designates the distribution from this Plan as an Excess Deferral

prior to April 15 of the next taxable year;




 




(2)  The

correcting distribution is made after the date on which the Plan received the

Excess Deferral; and




 




(3)  The

Plan designates the distribution as a distribution of Excess Deferrals.




 




In order to

distribute Excess Deferrals pursuant to this paragraph, such individual must

make such designation in writing and the individual must certify or otherwise

establish that the specified amount is an Excess Deferral.




 




(e)           Income. 

The income allocable to Excess Deferrals or Excess Salary Deferrals is

equal to the sum of the allocable gain or loss for the taxable year of the

individual and the allocable gain or loss for the period between the end of the

taxable year and the date of distribution, and is determined by multiplying the

Excess Deferrals for the taxable year of the individual by a fraction.  The numerator of the fraction is the amount

of the total gain or loss allocated to the individual for the taxable year. The

denominator of the fraction is the total balance of the Employee at the end of

the taxable year, reduced by the gain allocable to such total amount for the

taxable year and increased by the loss allocable to such total amount for the

taxable year.




 




Effective for Plan

Years beginning on or after January 1, 1994, lag period income or gap income

(the income attributable to such Excess Contributions for the period between

the end of the Plan Year, to which such Excess Contributions relate, and the

date of distribution) shall not be required to be calculated.




 




(f)            Lag period

income.  If, however, the lag period or gap period

income is to be calculated, (if the Adoption Agreement provides), the allocable

income for the period between the end of the taxable year and the distribution

date is equal to ten percent (10%) of the income allocable to Excess Deferrals

for the taxable year (as calculated under paragraph (e)) multiplied by the

number of calendar months that have elapsed since the end of the




 




34





























 




taxable year.  A distribution occurring on or before the

fifteenth day of the month shall be treated as having been made on the last day

of the preceding month, and a distribution occurring after such fifteenth day

shall be treated as having been made on the first day of the next subsequent

month.




 




(g)           Coordination with Excess

Contributions.  Excess Deferrals to be distributed to a

Participant for his taxable year shall be reduced by Excess Contributions

previously distributed for the Plan Year beginning in such taxable year.




 




(h)           Notification

by Employee.  If the Plan is not notified by a Participant

that such Participant’s limitation of Salary Deferral Contributions (under Code section 402(g)) as described in paragraphs (a)

and (b) of this Section 3.06 has been exceeded, the Plan shall assume

that such limitation has not been exceeded by such Participant’s Salary

Deferral Contributions to the Plan.




 




3.07.       Matching Contributions.  If elected by the Employer in the Adoption

Agreement, the Employer can make a Matching Contribution to the Plan on behalf

of each Participant who makes a Salary Deferral Contribution or Nondeductible

Employee Contribution for that Plan Year. The amount of such Matching

Contributions shall be calculated for each Participant as specified by the

Employer in the Adoption Agreement.  All

Matching Contributions for any given Plan Year shall be contributed to the

Trust by the Employer within the time prescribed by law, including extensions

of time, for the filing of the Employer’s federal income tax return for the

Employer’s fiscal year.  The

availability of Matching Contributions (if applicable) and Nondeductible

Employee Contributions (if applicable) under the Plan shall not discriminate in

favor of Highly Compensated Employees.




 




3.08.       Nondeductible Employee Contributions.




 




(a)           In general. 

If the Adoption Agreement provides for Nondeductible Employee

Contributions, a Participant may, at his option, make such Contributions to the

Plan in cumulative amounts not to exceed ten percent (10%) of his Compensation

for the Plan Year, or such percentage as specified in the Adoption Agreement.

The amount of such Contributions, if any, shall be designated by the

Participant on a form prescribed by the Plan Administrator.  The method of payment of such Contributions

shall be by payroll withholding unless otherwise specified in the Adoption

Agreement.




 




(b)           Recharacterization of Excess Contributions.  If Nondeductible Employee Contributions are

provided for in the Adoption Agreement, in any Plan Year in which a Participant

shall have an Excess Contribution amount, such Participant may elect to treat

such excess amounts pursuant to the provisions of this subsection (b), or have

such amounts distributed pursuant to Code section 401(k)(3) and the applicable

regulations.




 




A Participant may

treat his or her Excess Contribution amounts, for the Plan Year for which such

Excess Contributions relate, as an amount distributed to such Participant and

subsequently contributed by such Participant to the Plan.  Contributions which are treated in the

aforementioned manner shall be referred to as “Recharacterized” amounts.  Recharacterized amounts shall be

nonforfeitable and subject to the same distribution requirements as Salary

Deferral amounts.  Notwithstanding the

foregoing, amounts may




 




35





























 




not be Recharacterized by a Highly Compensated Participant to the

extent that such amounts in combination with other Nondeductible Employee

Contributions would exceed any stated limit under Sections 3.07 and 3.08(a)

(determined prior to applying Code section 401(m)(2)(A) and Section 3.09).




 




Recharacterization

must occur no later than two and one-half (2 1/2) months after the last day of

the Plan Year in which such Excess Contributions arose and is deemed to occur

no earlier than the date the last Highly Compensated Participant is informed in

writing of the amount Recharacterized and the consequences thereof.  Recharacterized amounts shall be taxable to

a Participant for a Participant’s tax year in which such Participant would have

received such amounts in cash.




 




3.09.       Actual Contribution Percentage Test.




 




(a)           In general. 

For Plan Years beginning after December 31, 1986, Nondeductible Employee

Contributions and Matching Contributions shall satisfy the tests defined in

Code section 401(m), and sections 1.401(m)-1(b)(1) and 1.401(m)-2 of the  Regulations, which are hereby incorporated

by reference. For purposes of Sections 3.09 and 3.10 only, Matching Contribution means

any Employer Contribution made to the Plan on account of a Salary Deferral

Contribution made to the Plan, and any Forfeiture directly or indirectly

allocated on the basis of Salary Deferral Contributions or Matching

Contributions.  The tests are as

follows.




 




(1)  The

Actual Contribution Percentage for the Highly Compensated Participant Group

shall not exceed the greater of:




 




(A)  125%

of such percentage for the Nonhighly Compensated Participant Group for the

preceding Plan Year, or




 




(B)  the

lesser of 200% of such percentage for the Nonhighly Compensated Participant

Group for the preceding Plan Year, or such percentage for the Nonhighly

Compensated Group for the preceding Plan Year plus two (2) percentage points.




 




The Employer may

elect to use Current Year Testing rather than Prior Year Testing except that if

the Current Year Testing election is made, it may not be changed unless the

Employer satisfies the requirements for changing to Prior Year Testing as set

forth in Internal Revenue Service Notice 98-1 (or its subsequent modification),

or as provided by the Internal Revenue Service.




 




In the case of a

Plan’s first Plan Year (other than a successor plan), the amount taken into

account as the Actual Contribution Percentage of the Nonhighly Compensated

Participant Group for the Prior Year Testing shall be 3%, unless the Employer

elects to use Current Year Testing and, therefore, uses the Actual Contribution

Percentage of the Nonhighly Compensated Participant Group during the first Plan

Year.




 




36





























 




(b)           Nondiscrimination

Safe Harbor.  A

Plan shall be treated as satisfying the Actual Contribution Percentage Test

under Code section 401(m)(2) if:




 




(1)           The Employer satisfies the

nondiscrimination safe harbor for the Actual Deferral Percentage Test in

Section 3.05(d), and




 




(A)  The Matching Contributions made on behalf of

any Participant are not made with respect to a Participant’s Salary Deferrals

in excess of 6% of the Participant’s Compensation, and




 




(B)  The rate of a Participant’s Matching

Contribution does not increase as the rate of a Participant’s Salary Deferrals

increase, and




 




(C)  The Matching Contribution with respect to

any Highly Compensated Employee at any rate of Salary Deferral Contributions is

not greater than that with respect to a Nonhighly Compensated Participant; or




 




(2)           The Plan satisfies the contribution

requirements of Code section 401(k)(11)(B) or 401(k)(12), the vesting

requirements of Code section 401(k)(12)(E)(i), and the notice requirement of

Code section 401(k)(12)(D).




 




3.10.       Limitation of Multiple Use of Alternate Limit.




 




(a)           In general. 

For Plan Years beginning after December 31, 2001, the multiple use test

described in Treasury Regulation section 1.401(m)-2 and Section 3.10 of the

Plan shall not apply.




 




(b)           Aggregate

Limit.  The Aggregate Limit is the greater of:




 




(1)           The

sum of:




 




(A)  1.25

times the greater of the Actual Deferral Percentage or the Actual Contribution

Percentage, and




 




(B)  Two percentage

points plus the lesser of the Actual Deferral Percentage or the Actual

Contribution Percentage. In no event, however, shall this amount exceed twice

the lesser of the Actual Deferral Percentage or the Actual Contribution

Percentage; or




 




(2)           The

sum of:




 




(A)  1.25

times the lesser of the Actual Deferral Percentage or the Actual Contribution

Percentage, and




 




37





























 




(B)  Two

percentage points plus the greater of the Actual Deferral Percentage or the

Actual Contribution Percentage.  In no

event, however, shall this amount exceed twice the greater of the Actual

Deferral Percentage or the Actual Contribution Percentage.




 




(3)           Correction

of Multiple Use:




 




(A)  More than one plan: If a multiple use of the alternate

limitation occurs with respect to two or more plans or arrangements maintained

by the Employer, such multiple use shall be corrected by reducing the Actual

Deferral Percentage of Highly Compensated Participants in the manner described

in subparagraph (C) below.




 




(B)  To the

extent that a Participant has unmatched Salary Deferral Contributions, the

required reductions shall be from Salary Deferral Contributions; thereafter,

Salary Deferral Contributions and Matching Contributions shall be reduced on a pro-rata

basis.




 




(C)  The amount of the reduction to the Actual Deferral

Percentage of the entire group of Highly Compensated Participants shall be

calculated in the manner described in the Code section 401(k)(2) regulations,

unless otherwise stipulated in the Adoption Agreement, so that there is no

multiple use of the alternate limitation. 

Unless otherwise specified in the Adoption Agreement, only the Actual

Deferral Percentages of all Highly Compensated Participants who are eligible in

both the arrangement subject to Code section 401(k) and the Plan subject to

Code section 401(m) shall be reduced.




 




3.11.       Qualified Nonelective and Matching Contributions.




 




(a)           Allocation of Qualified Nonelective

Contributions.  If the Employer has elected to use Current

Year Testing, then on behalf of each Nonhighly Compensated Participant, the

Employer may, at its sole discretion, make a Qualified Nonelective Contribution

equal a percentage between 0% to 10% of each eligible individual’s

Compensation, the exact percentage to be determined each year by the Employer.




 




(1)  The Employer shall have the sole discretion

to designate which Nonhighly Compensated Participants, if any, shall receive a

Qualified Nonelective Contribution, if any, for any Plan Year.




 




(2)  In any Plan Year, the Employer may designate

which test, either as described in Section 3.05 or as described in Section 3.09

to which such Qualified Nonelective Contributions, if any, shall be applied.




 




(b)           Actual Deferral Percentage Test.  All or part of the Qualified Nonelective

Contributions and Qualified Matching Contributions made with respect to

Participants may be treated as Salary Deferral Contributions for purposes of

the Actual Deferral Percentage Tests set forth in Section 3.05.  Qualified Matching Contributions and

Qualified Nonelective 




 




38





























 




Contributions used

to satisfy the Actual Deferral Percentage shall be disregarded for purposes of

satisfying the Actual Contributions Percentage Tests set forth in Section 3.09.

Qualified Nonelective Contributions and Qualified Matching Contributions used

to satisfy the Actual Deferral Percentage Tests shall be deemed Salary Deferral

Contributions.




 




(c)           Actual Contribution Percentage Test.  Qualified Matching Contributions used to

satisfy the Actual Deferral Percentage Test are not subject to the Actual

Contribution Percentage Test.  All or

part of the Qualified Nonelective Contributions made with respect to

Participants in the Plan, and which are not used to satisfy the Actual Deferral

Percentage Test, may be used to satisfy the Actual Contribution Percentage

Test.  Qualified Nonelective

Contributions used to satisfy the Actual Contribution Percentage Test shall be

deemed Matching Contributions.




 




(d)           Restrictions. 

Qualified Matching Contributions and Qualified Nonelective Contributions

used to satisfy the Actual Deferral Percentage Test shall not be taken into

account in determining whether the requirements of the Actual Contribution

Percentage Test are satisfied. 

Qualified Matching Contributions and Qualified Nonelective Contributions

used to satisfy the Actual Contribution Percentage Test shall not be taken into

account in determining whether the requirements of the Actual Deferral

Percentage Test are satisfied. Only Qualified Matching Contributions and

Qualified Nonelective Contributions made for the Plan Year may be used for

purposes of satisfying the Actual Deferral Percentage Test and Actual

Contribution Percentage Test for that same Plan Year.




 




(e)           Return

of Excess Contributions. 

If Qualified Matching Contributions are used to satisfy the Actual

Deferral Percentage Test, and, as a result of the test for a given Plan Year,

there are Excess Contributions, then the distribution of the Excess Contributions

shall be as follows.  First, all Salary

Deferral Contributions that were not matched with Qualified Matching

Contributions shall be distributed, and then, if required, the Qualified

Matching Contributions deemed as Salary Deferral Contributions and the

remaining Salary Deferral Contributions shall be distributed pro-rata.




 




(f)            Employer

Election.  The Plan Administrator may elect, in any Plan

Year, to treat all or a part of the Employer’s Matching Contributions for such

Plan Year as a Qualified Matching Contribution subject to the restrictions of

this Section 3.11.




 




3.12.       Rollover Contributions and Plan-to-Plan Transfers.  Unless prohibited in the Adoption Agreement,

the Plan may permit Rollover Contributions (as described in Plan Section 1.60)

and/or Plan-to-Plan Transfers, subject to Plan Administrator’s sole discretion

and approval and subject to the provisions of this Section.




 




(a)           Rollovers.   The Trustee shall accept Rollover

Contributions from any Employee, whether or not he is otherwise a Participant

in this Plan; provided, however, that the Plan Administrator must first certify

to the Trustee that such amount qualifies as a Rollover Contribution.




 




(b)           Plan-to-Plan

Transfers.




 




39





























 




(1)           The term “Plan-to-Plan Transfer”

means a transfer of assets between this Plan and another qualified plan.  Unless specifically prohibited in the

Adoption Agreement, the Trustee may accept Plan-to-Plan Transfers from another

qualified plan under Code section 401(a) if the funds so transferred were held

for the benefit of a person who is an Employee, whether or not a Participant,

at the time of such transfer, provided, however, that the Plan Administrator

must first certify to the Trustee (a) that such other employee benefit plan is

qualified under Code section 401(a), and (b) what portion, if any of the funds

to be received in a Plan-to-Plan Transfer were subject to restrictions on

distributions similar to those set forth in Code section 401(k)(2)(B) or

401(a)(11)(B)(iii)(III) while in the other qualified plan.  However, if the Plan-to-Plan Transfer is the

result of a merger or partial merger of another profit sharing plan qualified

under Code section 401(a), the Employer may amend the Plan to designate the accounts

to which the monies will be applied, within the applicable limits of the law.

Notwithstanding anything herein to the contrary, a transfer directly to this

Plan from another qualified plan (or a transaction having the effect of such a

transfer) shall only be permitted if it will not result in the elimination or

reduction of a Protected Benefit.




 




(2)           The Plan will accept deferrals and

match contributions that are legally and timely transferred from a nonqualified

“Top-Hat” plan of the Employer with respect to Employees who are Participants in

this Plan and Participants in the nonqualified plan.




 




(c)           Rollover or Plan-to-Plan Transfer from

Employer ESOP.  Unless specifically prohibited in the

Adoption Agreement, the Plan shall accept a Rollover or Plan-to-Plan Transfer

from an Employer’s employee stock ownership plan (“ESOP”), as defined in Code

section 4975(e).  The portion of an

Employee’s ESOP Account which is eligible for “diversification” (as described

in Code section 401(a)(28)(B)) may be rolled over or transferred to the Plan at

the election of such Employee. Prior to approving such rollover or transfer,

the Plan Administrator shall ascertain that the amount which is to be rolled

over or transferred, in order to satisfy the “diversification” requirement of

Code section 401(a)(28)(B), is eligible for “diversification” under the

applicable provisions of the ESOP.




 




3.13.       Return of Contributions. 

Employer Contributions shall not be returned to the Employer

except as described in Plan Sections 13.10 and 13.11.




 




However, any

Salary Deferral Contributions that are returned under Section 13.10 shall

always be returned to the Employee on whose behalf such contributions were

made, and under no circumstances shall such Salary Deferral Contributions ever

revert to the Employer.  Any such

returned Salary Deferral Contributions shall be adjusted to include earnings on

such returned contributions.




 




3.14.       Owner-Employee Provisions.  If the Plan provides contributions or benefits for one or more

Owner-Employees who control both the business for which this Plan is

established and one or more other trades or businesses, this Plan and the plan

established for such other trades or businesses must, when looked at as a

single plan, satisfy Code sections 401(a) and (d) for the employees of this and

all other trades or businesses. If the Plan provides contributions or benefits

for one or more Owner-Employees who control one or more other trades or

businesses, the employees of the other trades or




 




40





























 




businesses must be included

in a plan which satisfies Code sections 401(a) and (d) and which provides

contributions and benefits not less favorable than provided for such

Owner-Employees under this Plan. For purposes of this Section, an

Owner-Employee, or two or more Owner-Employees, shall be considered to control

a trade or business if the Owner-Employee or two or more Owner-Employees

together, (1) own the entire interest in an unincorporated trade or business,

or (2) in the case of a partnership, own more than 50% of either the capital

interest or the profits interest in the partnership.  An Owner-Employee shall be treated as owning any interest in a

partnership which is owned, directly or indirectly, by a partnership which such

Owner-Employee, or two or more such Owner-Employees, are considered to control

within the meaning of the preceding sentence.




 




3.15.       Other Nondiscrimination

Requirements.   Any other Employer Contributions made to the Plan, other than

Rollover Contributions, that are not subject to the nondiscrimination tests set

forth in either Sections 3.05, 3.09 or 3.10, shall be allocated on the basis of

a uniform formula.  Such uniform formula

shall allocate contributions to every Eligible Employee according to

Compensation or such contributions shall be the same dollar amount for each

eligible Employee. Such formula shall be specified in the Adoption Agreement.




 




3.16.       Qualified Military Service.  Notwithstanding any provision of this Plan to

the contrary, effective December 12, 1994, contributions, benefits and Service

credit with respect to qualified military service will be provided in

accordance with Code section 414(u).




 




3.17.       Catch-up

Contributions.  If elected by the Employer in the Adoption

Agreement, all Participants who are eligible to make Salary Deferral contributions

under this Plan and who have attained age 50 before the close of the Plan Year

shall be eligible to make Catch-up Contributions in accordance with, and

subject to the limitations of, section 414(v) of the Code. Such Catch-up

Contributions shall not be taken into account for purposes of the provisions of

the Plan implementing the required limitations of sections 402(g) and 415 of

the Code. The Plan shall not be treated as failing to satisfy the provisions of

the Plan implementing the requirements of section 401(k)(3), 401(k)(11),

401(k)(12), 410(b), or 416 of the Code, as applicable, by reason of the making

of such Catch-up Contributions.




 




41





























 




ARTICLE IV. PARTICIPANT ACCOUNTS AND

ALLOCATIONS.




 




4.01.       Establishment of Accounts.




 




(a)            Employer

Matching Account.  If the Employer makes any

Matching Contributions to the Plan, the Plan Administrator shall establish an

Employer Matching Account for each Participant.




 




(b)            Employer Discretionary Account. If the Employer

makes any Discretionary Contributions to the Plan, the Plan Administrator shall

establish an Employer Discretionary Account for each Participant.




 




(c)            Nondeductible Employee Account.  .If the Employer allows Nondeductible Employee Contributions

in the Adoption Agreement, the Plan Administrator shall establish a

Nondeductible Employee Account for each Participant who makes a Nondeductible

Employee Contribution.




 




(d)            Unrelated

Rollover Account.  If the Adoption Agreement

allows Rollover Contributions from plans unrelated to the Employer, the Plan

Administrator shall establish an Unrelated Rollover Account for each Employee

who makes such an Unrelated Rollover Contribution or for whose benefit such an

Unrelated Rollover is made to the Plan.




 




(e)            Related

Rollover Account.    If the Adoption Agreement allows Related Rollover Contributions

from plans related to the Employer, the Plan Administrator shall establish a

Related Rollover Account for each Employee who makes such a Related Rollover

Contribution or for whose benefit such a Related Rollover is made to the Plan.




 




(f)            Plan-to-Plan

Transfer Account.    If the

Employer allows Plan-to-Plan Transfers in the Adoption Agreement, the Plan

Administrator shall establish a Plan-to-Plan Transfer Account for each Employee

who makes a Plan-to-Plan Transfer or for whose benefit a Plan-to-Plan Transfer

is made to the Plan.




 




(g)           Salary

Deferral Account.  The Plan Administrator shall establish a

Salary Deferral Account for each Participant and for those Employees who are

not otherwise Participants but for whose benefit Plan-to-Plan Transfers are

made which include funds subject to the restrictions on distribution set forth

in Code section 401(k)(2)(B).




 




(h)           Qualified Matching Contribution

Account.   If the Employer makes any Qualified Matching Contributions to the

Plan, the Plan Administrator shall establish a Qualified Matching Contribution

Account for each Participant.




 




(i)            Qualified Nonelective Contribution

Account.   If the Employer makes any Qualified

Nonelective Contributions to the Plan, the Plan Administrator shall establish a

Qualified Nonelective Contribution Account for each Participant.




 




42





























 




(j)            Forfeiture

Account.  If the Plan reallocates Forfeitures to

Participants in accordance with Section 4.06(f)(3) or 4.06(f)(4), the Plan

Administrator shall establish a Forfeiture Account for each Participant.




 




(k)           Predecessor

Employee Account.  An Account established on behalf of each

Participant pursuant to Section 1.51.




 




(l)            Predecessor

Employer Account. An Account established on behalf

of each Participant pursuant to Section 1.52.




 




(m)          Employer

Account. Shall mean the Employer Matching Account

and the Employer Discretionary Account of each Participant.




 




(n)           Rollover

Account.  Shall mean the Unrelated Rollover Account

and the Related Rollover Account of each Participant.




 




4.02.       Accounting Procedure for Allocations.




 




(a)            In general.   As of each Valuation Date, the Plan

Administrator shall:




 




(1)  First,

allocate, as necessary under this Plan, to such Participant’s Employer Matching

Account, Forfeitures to any Participant who is entitled to have their

Forfeitures restored;




 




(2)  Next,

allocate to each Participant’s Accounts any Nondeductible Employee

Contributions, Related and Unrelated Rollover Contributions, Salary Deferral

Contributions, Matching Contributions, Discretionary Contributions and

Plan-to-Plan Transfers that are to be allocated as of the Valuation Date in

accordance with this Article;




 




(3)  Next,

allocate all withdrawals, payments or distributions made from such

Participants’ Accounts since the next preceding Valuation Date that have not

been previously allocated;




 




(4)  Next,

debit Participants’ Accounts for administrative fees paid, if any;




 




(5)  Next,

debit Participants’ Accounts for any insurance or annuity premiums paid, if

any, and credit with any dividends received on insurance contracts;




 




(6)  Next,

use Forfeitures to reduce the Employer’s Contributions, or allocate Forfeitures

to Participants, as specified in the Adoption Agreement;




 




(7)  Finally, allocate the net income or net loss of the Trust Fund in

accordance with the computation procedures set out in Section 4.04.




 




43





























 




(b)            Securities.  The Valuation Date shall also be the inventory date for

securities held by the Trust. The fair market value on the inventory date shall

be used for a valuation of the securities held by the Trust. The respective

Accounts of Participants are to be adjusted in accordance with the valuation.




 




(c)            Insurance

Contracts. 

Allocated life insurance and/or annuity contracts,

i.e., contracts which are purchased to provide certain specified benefits for

specific Participants, shall be presented on the Plan’s financial statements in

accordance with generally accepted accounting principles.




 




4.03.       Allocation of Participant Contributions.




 




(a)            Nondeductible Employee

Contributions.

All Nondeductible Employee Contributions shall be credited to the Nondeductible

Employee Account of the Participant making the contribution as of each

Valuation Date.




 




(b)            Rollover

Contributions. 

All Rollover Contributions shall be credited to the applicable Rollover

Account of the Employee making the contribution as of each Valuation Date.




 




(c)            Plan-to-Plan

Transfers.  All Plan-to-Plan Transfers shall be credited

to the Plan-to-Plan Transfer Account of such Employee as of each Valuation

Date.  Notwithstanding the preceding,

any portion of a Plan-to-Plan Transfer or Rollover contribution that the Plan

Administrator has certified to the Trustee as having been subject to the

restrictions on distribution set forth in Code section 401(k)(2)(B) while in

the other qualified plan shall be credited to the Salary Deferral Account of

the Employee, as of each Valuation Date.




 




4.04.       Allocation of Net Income or Net Loss.




 




(a)            As of each Valuation

Date, the Trustee or its designee shall subtract all distributions and

withdrawals since the previous Valuation Date, add to each Account the amount

of the contributions, and allocate the net earnings and gains or losses of the

fund based on the individual account activity of each such Participant’s

Account during such period pursuant to a share accounting method under which

each Participant’s investments in the investment funds shall be accounted for

in actual shares purchased by the Plan contributions and allocated to the

Participant’s Account.  For this

purpose, the Trustee or its designee, shall adopt uniform rules which conform

to applicable law and generally accepted accounting practices.  However, notwithstanding the above, a

Participant shall cease to share in any earnings after Plan assets attributable

to his Account are transferred into a disbursement account pending sale or

liquidation of the Participant’s relevant investment funds and distribution of

the proceeds thereof.




 




(b)            If the Plan Administrator determines

in making any valuation, allocation, or adding interest to any Account under

the provisions of the Plan that the strict application of the provisions of the

Plan will not produce an equitable and nondiscriminatory allocation among the

Accounts of the Participants, it may modify any procedure specified in the Plan

for the purpose of achieving an equitable and nondiscriminatory allocation in

accordance with the




 




44





























 




general concepts of the Plan; provided, however, that any

such modification shall not reduce the Participant’s vested Account and shall

be consistent with the provisions of Code section 401(a).  If the Plan Administrator in good faith

determines that certain expenses of administration paid by the Trustee during

the Plan Year under consideration are not general, ordinary, and usual and

should not equitably be borne by all Participants, but should be borne only by one

or more Participants, for whom or because of whom such specific expenses were

incurred, the net earnings and adjustments in value of the Accounts shall be

increased by the amounts of such expenses, and the Plan Administrator shall

make suitable adjustments by debiting the particular Account or Accounts of

such one or more Participants; provided, however, that any such adjustment must

be nondiscriminatory and consistent with the provisions of Code section 401(a).




 




(c)            As of each Valuation Date, any net income

or net loss of the Trust Fund that is not attributable to (a) above shall be

allocated in a nondiscriminatory manner as directed by the Plan Administrator.




 




4.05.       Ascertainment of Net Income and Net Loss.  Net income or net loss of the

Trust Fund shall be ascertained as of each Valuation Date by the Trustee, whose

finding shall be accepted by the Plan Administrator as conclusive, and shall

mean the profit and any income received less the losses and expenses of the

Trust Fund, plus or minus any net increase or decrease in the fair market value

of the assets of the Trust Fund not realized. Such net income or net loss shall

be determined in accordance with the accounting method selected by the

Employer.  Any life insurance contracts

held by the Trustee shall be valued in accordance with  Section 4.02(c) as of the Valuation Date,

but such contracts shall be listed separately by type of contract and allocated

to the appropriate Account of each Participant for whom they are held.




 




4.06.       Allocation of Employer Contributions

and Forfeitures.




 




(a)            Discretionary Contributions:  Allocation in Proportion to Compensation.  If the Employer

elects to make Discretionary Contributions, all such Contributions shall be

allocated to the Employer Discretionary Account of each Participant entitled to

share in the allocation of such Contributions, as of each Valuation Date.  Except to the extent otherwise elected by

the Employer in the Adoption Agreement, only those Participants who have completed

a Year of Service during the Plan Year and who are employed on the last day of

the Plan Year shall share in the allocation of Discretionary Contributions for

such Plan Year, and then only on the basis of their respective Compensation,

unless otherwise elected by the Employer in the Adoption Agreement.  The preceding sentence notwithstanding, a

Participant who has Separated from Service, during the Plan Year for which a

Discretionary Contribution is made, due to retirement, death or Disability, and

who is otherwise eligible to receive an allocation of a Discretionary

Contribution, shall receive an allocation of the Discretionary Contribution for

such Plan Year.




 




(b)            Discretionary Contributions:  Integrated Allocation.  If specified in the

Adoption Agreement, a Discretionary Contribution, if any, shall be allocated to

each Participant’s Account, except as provided in Section 9.04(a), in a dollar

amount equal to 5.7% of the sum of each Participant’s total Compensation plus

Excess Compensation.  “Excess Compensation”

means, with respect to a Plan that is integrated with Social Security, a




 




45





























Participant’s

Compensation which is in excess of the amount set forth in the Adoption

Agreement.  If the Employer does not

contribute such amount for all Participants, each Participant will be allocated

a share of the contribution in the same proportion that his/her total

Compensation plus his/her total Excess Compensation for the Plan Year bears to

the total Compensation plus the total Excess Compensation of all Participants

for the year.  For purposes of this

subsection (b), “Taxable Wage Base” shall mean, with respect to any year, the

minimum amount of earnings which may be considered wages for such year under

Code section 3121(a)(1).




 




Notwithstanding

the preceding, 4.3% shall be substituted for 5.7% above if Excess Compensation

is based on more than 20% and less than or equal to 80% of the Taxable Wage

Base.  If Excess Compensation is based

on less than 100% and more than 80% of the Taxable Wage Base, then 5.4% shall

be substituted for 5.7% above.  The

percentage of the Taxable Wage Base which shall be the basis for determining

Excess Compensation shall be specified in the Adoption Agreement.




 




(1)  The balance of the Discretionary

Contribution over the amount allocated above, if any, shall be allocated to

each Participant’s Account in the same proportion that his/her total

Compensation for the year bears to the total Compensation of all Participants

for such year.




 




(2)  Except, however, for any Plan Year beginning

prior to January 1, 1990, and if elected in the Adoption Agreement for any Plan

Year beginning on or after January 1, 1990, a Participant who performs less

than a Year of Service during any Plan Year shall not share in the

Discretionary Contribution for that year, unless there is a short Plan Year (a

Plan Year of less than twelve (12) consecutive months) or a contribution is

required pursuant to Section 9.04(a).




 




(c)            Discretionary Contributions: Allocation Based on Cross-Testing.    If specified in the Adoption

Agreement that the Plan is to utilize cross-testing as described in Section

1.401(a)(4)-8 of the Income Tax Regulations, Employer contributions shall be

allocated to each Participant’s Account in accordance with the following rules:




 




(i)            All Participants in the Plan shall

be classified as belonging to an Allocation Tier specified in the Adoption

Agreement.  Each of the Allocation Tiers

shall receive a definite, designated 

portion of each Employer contribution.




 




(ii)           Prior to making any Employer contribution,

the Employer shall designate in a written instrument the amount of such

Employer contribution to be allocated to each Allocation Tier.  Each of these written documents shall be

signed by an authorized representative of the Employer, and shall be kept as

part of the permanent records of the Plan.




 




(iii)          The amount of the

Employer contribution designated as belonging to each Allocation Tier shall be

allocated among the Participants in such Allocation Tier by multiplying such

amount by a fraction, the numerator of which is the Compensation 




 




46





























 




of each Participant in the Allocation Tier and the denominator of which

is the aggregate of the Compensation of all Participants in such Allocation

Tier.




 




(iv)          Alternatively, if

elected in the Adoption Agreement, the amount of the Employer contribution to

each Allocation Tier shall be allocated equally among the Participants in such

Allocation Tier.




 




(v)           In the event the

Plan is a Top-Heavy Plan for the Plan Year, then notwithstanding the foregoing,

the Employer contribution shall be allocated so as to satisfy the minimum

contribution allocation requirements as set forth in Plan Section 9.04.




 




(vi)          Except to the extent

otherwise elected by the Employer in the Adoption Agreement, only those

Participants who have completed a Year of Service during the Plan Year and who

are employed on the last day of the Plan Year shall share in the allocation of

Discretionary Contributions for such Plan Year.  Unless otherwise elected in the Adoption Agreement, the preceding

sentence notwithstanding, a Participant who has Separated from Service, during

the Plan Year for which a Discretionary Contribution is made, due to

retirement, death or Disability, and who is otherwise eligible to receive an

allocation of a Discretionary Contribution, shall receive an allocation of the

Discretionary Contribution for such Plan Year.




 




(d)           Salary

Deferral Contributions.   Salary Deferral

Contributions shall be allocated to the Salary Deferral Account of each

Participant as of each Valuation Date.




 




(e)           Matching

Contributions.   If the Employer elects to make Matching Contributions, all such

Contributions shall be allocated to the Employer Matching Account of such

Participant as of each Valuation Date, or as of such other date or period as

specified in the Adoption Agreement.  A

Participant who has made a Salary Deferral Contribution or a  Nondeductible Employee Contribution and who

has Separated from Service, during a Plan Year for which the Employer has made

a Matching Contribution, due to retirement, death or Disability, shall be

eligible to receive an allocation of Matching Contributions notwithstanding

that such Participant would otherwise not be eligible to receive such an

allocation by reason of his or her failure to complete the minimum Service

requirements or failure to be employed on the last day of such Plan Year.




 




(f)            Forfeitures. 




 




(1)  As of

each Valuation Date Forfeitures shall first be used, when necessary, to restore

Forfeitures to the Accounts of any Participants qualified for such restoration

and then shall be used for the Plan Year in which such Forfeitures occur and as

provided for in the Adoption Agreement.




 




(2)  If specified in the Adoption Agreement, as

of each Anniversary Date any amounts which became Forfeitures since the last

Anniversary Date, and which have not been used to reinstate previously

forfeited Account Balances, if any, shall be used to satisfy Plan expenses as

follows.  All expenses incident to the

administration, termination or




 




47





























protection of the

Plan and Trust, including, but not limited to, actuarial, legal, accounting,

administration, management, and Trustee’s fees, shall be paid out of the

remaining Forfeitures.  If the

Forfeitures are insufficient to pay for such expenses, any remaining

liabilities, may, at the Employer’s sole discretion, be paid by the Employer.

For the convenience and the facilitation of the administration of the Plan, the

Employer may pay any such expenses and be reimbursed for those expenses out of

Forfeitures, to the extent that Forfeitures are available and to the extent

that such expenses (as non-settlor functions) are permitted, by the Department

of Labor, to be reimbursed in such manner.




 




(3)  Unless

otherwise specified in the Adoption Agreement, the remaining Forfeitures

attributable to Matching Contributions, if any, shall only be allocated to

Participants who made a Salary Deferral Election and one or more Salary

Deferral Contributions for the applicable Plan Year, and who were employed with

the Employer on the last day of the applicable Plan Year, and shall be

allocated according to the following method:




 




(A)  The

Forfeitures shall be used to reduce the Matching Contribution of the Employer

hereunder for the Plan Year in which such Forfeitures occur.




 




(4)  Unless

otherwise specified in the Adoption Agreement, the remaining Forfeitures

attributable to Discretionary Contributions, if any, shall only be allocated to

those Participants who have completed a Year of Service during the Plan Year

and who are employed on the last day of the Plan Year, and shall be allocated

according to one of the following methods (A, B, or C below), as specified in

the Adoption Agreement.




 




(A)  The

Forfeitures shall be used to reduce the Discretionary Contribution of the

Employer hereunder for the Plan Year in which such Forfeitures occur.




 




(B) 

Forfeitures shall be allocated among eligible Nonhighly Compensated

Participants in accordance with the allocation formula for Discretionary

Contributions.




 




(C) 

Forfeitures shall be allocated among eligible Participants in accordance

with the allocation formula for Discretionary Contributions.




 




Forfeitures

allocated under subparagraph (B), and (C) shall be allocated once a year as of

the Anniversary Date of the Plan Year, unless otherwise specified in the

Adoption Agreement.




 




(5) If specified in the Adoption Agreement,

Forfeitures, without regard to whether attributable to Matching Contributions

or Discretionary Contributions, shall be used to reduce any current or future

Employer contributions.




 




(6) If specified

in the Adoption Agreement, Forfeitures, without regard to whether attributable

to Matching Contributions or Discretionary Contributions, shall be allocated

among eligible Participants who are credited with one (1) Year of Service and

who are employed with the Employer on the last day of the Plan Year, on the

basis that




 




48





























 




each such eligible

Participant’s Total Account Balance bears to the Total Account Balances of all

eligible Participants.




 




(7)  If specified in the Adoption Agreement,

Forfeitures, without regard to whether attributable to Matching Contributions

or Discretionary Contributions, shall be allocated among eligible Participants

who are credited with one (1) Year of Service and who are employed with the

Employer on the last day of the Plan Year, on the basis that each such eligible

Participant’s Compensation bears to the total Compensation of all eligible Participants.




 




Forfeitures

allocated pursuant to paragraphs (6) and (7) above, shall be allocated once

each Plan Year as of the Anniversary Date of a Plan Year.




 




(g)           Additional

Allocations. Unless specified otherwise in

the Adoption Agreement, in the event that the allocations made pursuant to

subsections (a), (b), (c), (e) or (f) of this Section 4.06, would result in a

failure to satisfy the requirements of Code section 410(b), or of the

regulations thereunder, the Plan Administrator may determine that an additional

number of Nonhighly Compensated Employees shall be eligible to share in the

allocation made under such subsections. 

Such additional number of such Nonhighly Compensated Employees shall be

the minimum number necessary to enable the Plan to qualify under Code section

410(b).  Such additional Nonhighly

Compensated Employees who shall be eligible to share in such allocation shall

be selected in the following order:




 




(1)  first, from among such Participants who were

employed on the last day of the Plan Year and who failed to complete a Year of

Service in the Plan Year;




 




(2)  then, from among such Participants who were

not employed on the last day of the Plan Year, ranked in order of those who

have completed the largest number of Hours of Service.




 




49





























 




ARTICLE

V. LIMITATIONS ON ALLOCATIONS.




 




5.01.       Participants Covered by this Plan Only.




 




(a)           In general.

 If a

Participant does not participate in, and has never participated in another

qualified plan, or a welfare benefit fund as defined in Code section 419(e),

maintained by the Employer, or an individual medical account, as defined in

Code section 415(l)(2), maintained by the Employer, which provides an Annual

Addition, the total amount of Annual Additions which may be credited to the

Participant’s Account for any Limitation Year shall not exceed the lesser of

the Maximum Permissible Amount or any other limitation contained in this Plan.




 




If the Employer

contribution that would otherwise be contributed or allocated to a

Participant’s Account would cause the Annual Additions for the Limitation Year

to exceed the Maximum Permissible Amount, the amount contributed or allocated

shall be reduced so that the Annual Additions for the Limitation Year will

equal the Maximum Permissible Amount.




 




(b)           Calculation of Maximum Permissible

Amount. Prior to determining a Participant’s

415(c) Compensation for the Limitation Year, the Employer may determine the

Maximum Permissible Amount for a Participant on the basis of a reasonable

estimation of the Participant’s 415(c) Compensation for the Limitation Year,

uniformly determined for all Participants 415(c) Compensation for the

Limitation Year. As soon as administratively feasible after the end of the

Limitation Year, the Maximum Permissible Amount for the Limitation Year shall

be determined on the basis of the Participant’s 415(c) Compensation for the

Limitation Year.




 




5.02.       More than One Plan.




 




(a)            Two or more defined contribution plans.

This subsection (a) applies if, in addition to this Plan, a Participant is

covered under another qualified defined contribution plan (whether or not

terminated) maintained by the Employer for the current and all prior Limitation

Years.  For this purpose, another

qualified defined contribution plan shall include the Annual Additions

attributable to a Participant’s Nondeductible Employee Contributions to all

defined benefit plans (whether or not terminated) maintained by the Employer,

and the Annual Additions attributable to all welfare benefit funds (as defined

in Code section 419(e)) maintained by the Employer, and an individual medical

account (as defined in Code section 415(l)(2)) maintained by the Employer,

which provides an Annual Addition during any Limitation Year.




 




The maximum aggregate amount in any Limitation Year is

the lesser of 125 percent of the dollar limitation determined under Code

sections 415(b) and (d) in effect under Code section 415(c)(1)(A) or 35 percent

of the Participant’s 415(c) Compensation for such Year.




 




(1)  If a Participant participates in more than

one defined contribution plan maintained by the Employer which have different

Anniversary Dates, the Maximum Permissible




 




50





























 




Amount under this

Plan shall equal the maximum Annual Additions for the Limitation Year minus any

Annual Additions previously credited to such Participant’s Accounts during the

Limitation Year.




 




(2)  If a

Participant participates in both a defined contribution plan subject to Code

section 412 and a defined contribution plan not subject to Code section 412

maintained by the Employer which have the same Anniversary Date, Annual

Additions shall be credited to the Participant’s Accounts under the defined

contribution plan subject to Code section 412 prior to crediting Annual

Additions to the Participant’s Accounts under the defined contribution plan not

subject to Code section 412.




 




(3)  If a

Participant participates in more than one defined contribution plan not subject

to Code section 412 maintained by the Employer which have the same Anniversary

Date, the maximum Annual Additions under this Plan shall equal the product of:




 




(A)  the

maximum Annual Additions for the Limitation Year minus any Annual Additions

previously credited under (1) or (2) above, multiplied by




 




(B)  a

fraction, the numerator of which is the Annual Additions which would be

credited to such Participant’s Accounts under this Plan without regard to the

limitations of Code section 415 and the denominator of which is such Annual

Additions for all plans described in this paragraph.




 




Note: (b) through

(g) below do not apply to Limitation Years beginning after December 31, 1999.




 




(b)            Defined

benefit plans.   Subject to the exception given below, if an Employee is (or has

been) a Participant in one or more defined benefit plans and one or more

defined contribution plans maintained by the Employer, the sum of the defined

benefit plan fraction and the defined contribution plan fraction for any

Limitation Year may not exceed 1.0.




 




(c)            Defined benefit plan franction.  The defined benefit plan fraction is

determined as follows:




 




(1)  The

defined benefit plan fraction for any Limitation Year is a fraction (A) the

numerator of which is the Projected Annual Benefit of the Participant under all

defined benefit plans (whether or not terminated) maintained by the Employer

(determined as of the close of the Limitation Year), and (B) the denominator of

which is the lesser of: (i) the product of 1.25 multiplied by the maximum

dollar limitation provided under Code section 415(b)(1)(A) for such Limitation

Year, or (ii) the product of 1.4 multiplied by the amount (the highest average

Compensation, including any adjustments) which may be taken into account under

Code section 415(b)(1)(B) for such Limitation Year.




 




(2)  For purposes

of applying the limitations of Code section 415, the Projected Annual Benefit

for any Participant is the benefit, payable annually, under the terms of the

Plan determined pursuant to Regulations section 1.415-7(b)(3).




 




51





























 




(3)  For

purposes of applying the limitations of Code section 415, the projected current

accrued benefit for any Participant in a Defined Benefit Plan in existence on

July 1, 1982, shall be the accrued benefit, payable annually, provided for

under question T-3 of Internal Revenue Service Notice 83-10.




 




(4) 

Notwithstanding (1) above, if a Participant was a Participant as of the

first day of the first Limitation Year beginning after December 31, 1986, in

one or more defined benefit plans maintained by the Employer which were in

existence on May 6, 1986, the denominator of this fraction shall not be less

than 1.25 of the sum of the annual benefits under such plans which the

Participant had accrued as of the close of the last Limitation Year beginning

before January 1, 1987, disregarding any changes in the terms and conditions of

such plan after May 5, 1986.  The

preceding sentence shall apply only if the defined benefit plans individually

and in the aggregate satisfied the requirements of Code section 415 for all

Limitation Years beginning before January 1, 1987.




 




(5)  For

purposes of this subsection (c) Projected Annual Benefit means the annual

retirement benefit (adjusted to an actuarially equivalent straight life

annuity, if such 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 assuming: (A) the Participant

shall continue employment until the normal retirement age provided under such

plan (or the current age, if later), and (B) the Participant’s 415 Compensation

for the current Limitation Year, and all other relevant factors used to

determine benefits under such plan shall remain constant for all future Limitation

Years.




 




(d)            Defined contribution plan fraction.   The defined contribution plan fraction is

determined as follows:




 




(1)  The

defined contribution plan fraction for any Limitation Year is a fraction of:




 




(A)  the

numerator of which is the sum of all Annual Additions to the Participant’s

Accounts as of the close of the Limitation Year; and




 




(B)  the

denominator of which is the sum of the lesser of the following amounts

determined for such year and each prior Year of Service with the Employer:




 




(i)  the product of 1.25 multiplied by the dollar

limitation in effect under Code section 415(c)(1)(A) for such Limitation Year

(determined without regard to Code section 415(c)(6)); or




 




(ii)  the product of 1.4 multiplied by the amount

which may be taken into account under Code section 415(c)(1)(B) for such

Limitation Year.




 




52





























 




(2)  Notwithstanding the foregoing, the numerator of the defined

contribution plan fraction shall be adjusted pursuant to Regulations section 1.415-7(d)(1)

and questions T-6 and T-7 of the Internal Revenue Service Notice 83-10.




 




(3)  For

defined contribution plans in effect on or before July 1, 1982, the Plan

Administrator may elect for any Limitation Year ending after December 31, 1982,

that the amount taken into account in the denominator for every Participant for

all Limitation Years ending before January 1, 1983, shall be an amount equal to

the product of  (A) the denominator for

the Limitation Year ending in 1982 determined under the law in effect for the

Limitation Year ending in 1982 multiplied by (B) the transition fraction.




 




(4)  For

purposes of the preceding paragraph, the term transition fraction shall

mean a fraction (A) the numerator of which is the lesser of (1) $51,875, or (2)

1.4 multiplied by 25% of the Participant’s 415(c) Compensation for the

Limitation Year ending in 1981, and (B) the denominator of which is the lesser

of (1) $41,500 or (2) 25% of the Participant’s 415(c) Compensation for the

Limitation Year ending in 1981.




 




(5)  Notwithstanding the foregoing, for any Limitation Year in which

the Plan is a Top-Heavy Plan (as determined under Section 9.02), $41,500 shall

be substituted for $51,875 in determining the transition fraction unless an

extra minimum allocation is being provided pursuant to this Plan being found to

be Top-Heavy. However, for any Limitation Year in which this Plan is a

Super-Top-Heavy Plan, $41,500 shall be substituted for $51,875 in any event.




 




(6)  If an

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 shall 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 (1)

the excess of the sum of the fractions over 1.0 times (2) the denominator of

this fraction, shall be 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, and disregarding any changes

in the terms and conditions of the Plan made after May 5, 1986, but using the

Code 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.




 




(7) 

Defined Contribution Dollar Limitation: 

$30,000 or such larger amount as may be determined by the Commissioner

of the Internal Revenue Service for the Limitation Year.  For Limitation Years prior to January 1,

1995:  $30,000 or if greater, one-fourth

of the defined benefit dollar limitation set forth in Code section 415(b)(1),

as in effect for the Limitation Year.




 




53





























 




(e)           Top-Heavy rule. 

Notwithstanding the foregoing for any Limitation Year in which the Plan

is a Top-Heavy Plan, 1.0 shall be substituted for 1.25 in subsection

(d)(1)(B)(i) above.




 




(f)            Limiting

Annual Additions.  If the sum of the defined benefit plan

fraction and the defined contribution plan fraction shall exceed 1.0 in any

Limitation Year for any Participant in this Plan for reasons other than

described in (h) below, the Plan Administrator shall limit, to the extent

necessary, the Annual Additions to such Participant’s Accounts for such

Limitation Year.  If, after limiting the

Annual Additions to such Participant’s Accounts for the Limitation Year, the

sum of the defined benefit plan fraction and the defined contribution plan fraction

still exceed 1.0, the Plan Administrator shall then adjust the numerator of the

defined benefit plan fraction so that the sum of both fractions shall not

exceed 1.0 in any Limitation Year.




 




(g)            Other limitations.  If




 




(1)  the

substitution of 1.0 for 1.25 and $41,500 for $51,875 above, or




 




(2)  the

excess benefit accruals or Annual Additions provided for in Internal Revenue

Service Notice 82-19 cause the 1.0 limitation to be exceeded for any

Participant in any Limitation Year, such Participant shall be subject to the

following restrictions for each future Limitation Year until the 1.0 limitation

is satisfied:




 




(A)  The

Participant’s accrued benefit under the defined benefit plan shall not

increase;




 




(B)  no

Annual Additions may be credited to a Participant’s Accounts; and




 




(C)  no

Employee Contributions (voluntary or mandatory) shall be made under any defined

benefit plan or any defined contribution plan of the Employer.




 




(h)           Rules shall comply with Code section

415.  Notwithstanding anything contained in

this Section to the contrary, the limitations, adjustments and other

requirements prescribed in this Section shall at all times comply with the

provisions of Code section 415 and the Regulations thereunder, the terms of

which are specifically incorporated herein by reference for Plan Years beginning

after December 31, 1999.




 




54





























 




ARTICLE VI. VESTING.




 




6.01.       Employer Account Vesting Schedule.  Prior to attaining Normal Retirement Age, a Participant’s Vested

Balance in the amounts credited to his Employer Account shall be determined in

accordance with the vesting schedule specified in the Adoption Agreement.

Notwithstanding the preceding sentence, in Top-Heavy Plan Years, a

Participant’s Vested Balance in his Employer Account shall be determined pursuant

to the vesting schedule under Section 9.03 of the Plan.




 




6.02.       Vesting Computation Method




 




(a)           In general. 

If Breaks-in-Service and Years of Service are calculated under the 1,000

Hour Method, then for vesting purposes an Employee shall be credited with a

Year of Service for each Plan Year in which the Employee completes 1,000 or

more Hours of Service.




 




If

Breaks-in-Service and Years of Service are calculated under the Elapsed Time

Method, then for vesting purposes an Employee shall be credited with a Year of

Service for each 12-consecutive months of Service, which begins on the

employment commencement date.




 




(b)           Change

In Computation Period.  In

the event that the Plan Year is the vesting computation period and the Plan is

amended to change the Plan Year (the vesting computation period) to a different

12-consecutive month period, the first vesting computation period established

under such amendment shall begin before the last day of the preceding vesting

computation period.  A Participant who

is credited with 1,000 Hours of Service in both the vesting computation period

under the Plan before such amendment, and in the first vesting computation

period under the Plan after such amendment, shall be credited with two (2)

Years of Service for vesting computation purposes.




 




6.03.       Years of Service. 

Years of Service with an Affiliate and Years of Service with

an Employer whose Plan is merged with this Plan (unless otherwise provided in

the Adoption Agreement), shall be counted for vesting purposes, unless excluded

hereunder.




 




In computing periods of

Service for purposes of vesting, all Years of Service shall be counted, except

as follows (unless such Service is specifically credited pursuant to the

Adoption Agreement):




 




(a)           If a Former Participant has a one-year

Break-in-Service, his pre-break and post-break Service shall be used for

computing Years of Service for vesting purposes only after he has been employed

for one (1) Year of Service following the date of his reemployment;




 




(b)           Any Former Participant who under the

Plan does not have a nonforfeitable right to any interest in the Plan resulting

from Employer contributions shall lose credits otherwise allowable under (a)

above if his consecutive one-year Breaks-in-Service equal or exceed the greater

of five (5) Breaks-in-Service or the aggregate number of his pre-break Years of

Service;




 




55





























 




(c)           After five (5) consecutive one-year

Breaks-in-Service, a Former Participant’s Vested Balance attributable to

pre-break Service shall not be increased as a result of post-break Service;




 




(d)           Years of Service before Age 18;




 




(e)           Years of Service before the Employer

maintained this Plan or a predecessor plan.




 




6.04.       Amendment of Vesting Schedule.




 




(a)           In general. 

No amendment shall, directly or indirectly, decrease (but may increase)

a Participant’s Vested Balance in his Employer Account, determined as of the

later of the date the amendment is adopted, or the date such amendment is

effective. If the vesting schedule of the Plan is amended, or the Plan is

amended in any way that directly or indirectly affects the computation of the

vested interest of Participants (or if the Plan is deemed amended by an

automatic change to or from a Top-Heavy vesting schedule), each Participant

with at least three (3) Years of Service with the Employer may elect, within a

reasonable period after the adoption of the amendment, to have his Vested

Balance computed under the Plan without regard to such amendment.




 




(b)           Election

Period.  The period during which the election,

provided for in (a) above, may be made shall commence with the date the

amendment is adopted or deemed to be made, and shall end on the latest of:




 




(1)  sixty

(60) days after the amendment is adopted;




 




(2)  sixty

(60) days after the amendment becomes effective; or




 




(3)  sixty

(60) days after a Participant is issued written notice of the amendment by the

Employer or Plan Administrator.




 




Notwithstanding any vesting schedule specified in the

Adoption Agreement, if this is an amendment and restatement of the Plan, then

the vested percentage of a Participant’s Discretionary Account or Matching

Account shall not be less than the vested percentage attained for the

Discretionary Account or Matching Account, as applicable, as of the later of

the effective date or adoption date of this amendment and restatement.




 




6.05.       Other Accounts Fully Vested.  The amounts credited to a Participant’s

Salary Deferral Account, Nondeductible Employee Account, and Rollover Account

shall always be 100% vested and nonforfeitable.




 




56





























 




ARTICLE

VII. BENEFITS AND DISTRIBUTIONS




 




7.01.       Application of Provisions.  Except as otherwise provided in Article VIII, if applicable, the

requirements of this Article shall apply to any distribution of a Participant’s

Vested Balance in his Accounts.  In the

event that the provisions of Article VIII shall apply, as specified in the

Adoption Agreement, a Participant shall be required to obtain the consent of

his or her Spouse prior to obtaining a distribution from the Plan.  Such consent shall be in the form of a

Qualified Election.  In the event that

the provisions of Article VIII shall not apply, as specified in the Adoption

Agreement, a Participant shall not be required to obtain the consent of his or

her Spouse prior to obtaining a distribution from the Plan, unless the Adoption

Agreement specifically provides otherwise. 

If such consent is required, such consent shall be in writing and shall be

witnessed by a representative of the Plan or by a notary public.




 




7.02.       Normal Retirement Benefits.  When a Participant attains his Normal Retirement Age, he shall be

100% vested in his Employer Accounts. Upon a Participant’s termination of

Service on or after attaining his Normal Retirement Age, his Vested Balance

shall be payable to him pursuant to the provisions of this Article VII and

Article VIII, if applicable.




 




7.03.       Termination Benefit Prior to Normal Retirement.




 




(a)           General Rule. 

Upon a Participant’s Severance from Employment (for reasons other than

death or Disability) prior to his attaining Normal Retirement Age or Early

Retirement Age (unless the Adoption Agreement specifically does not provide for

an Early Retirement Age), his Vested Balance in his Accounts shall be payable

in accordance with Section 7.07 and in the manner provided in Section 7.08 and

the Adoption Agreement. Subject to the provisions of subsection (b), a

Participant’s Forfeiture, if any, shall be maintained in his Employer Account

and shall be held in the Trust as uninvested cash until it is reallocated in

accordance with Section 4.06(f).




 




(b)                                  Miscellaneous provisions.




 




(1)  If a

Participant Separates from Service and elects (under a Qualified Election, or

if a Qualified Election is not applicable, in the same manner as a Qualified

Election) to receive payment of his entire Vested Balance, the amount subject

to Forfeiture shall be the remaining balance in such Account. If the

Participant elects (under a Qualified Election, or if a Qualified Election is

not applicable, in the same manner as a Qualified Election) to have distributed

less than his entire Vested Balance, the part of the non-vested portion which

shall be subject to Forfeiture is the total non-vested portion multiplied by a

fraction, the numerator of which is the amount of the distribution from the

Employer Account and the denominator of which is the total value of the

Employer Account of such Participant.




 




(2)  If the

value of the Vested benefit of a Participant who has Separated from Service

does not exceed $5,000 ($3,500 for Plan Years prior to January 1, 1998), the

Plan Administrator shall direct the Trustee to cause the entire vested benefit

to be paid to such Participant in a single lump sum.




 




57





























 




(3)  If a

Participant Separates from Service, there shall be no distribution of any

benefits where the present value of the nonforfeitable accrued benefit (taking

into consideration benefits derived from both Employer and Employee

contributions) is in excess of $5,000 ($3,500 for Plan Years prior to January

1, 1998) without the consent of the Participant and, when applicable, the

consent of the Participant’s Spouse. 

The consent of a Participant’s Spouse shall be required if either the

provisions of Article VIII are applicable or if such spousal consent is

otherwise specifically required, as set forth in the Adoption Agreement.




 




(4) If any Former Participant shall be reemployed by the Employer

before incurring five (5) consecutive one-year Breaks-in-Service, and such

Former Participant had received, or was deemed to have received, a distribution

of his entire Vested Balance prior to his reemployment, his forfeited Account

shall be reinstated only if he repays the full amount distributed to him before

the earlier of five (5) years after the first date on which the Participant is

subsequently reemployed by the Employer, or the date the Participant incurs

five (5) consecutive one-year Breaks-in-Service following the date of

distribution. If an Employee is deemed to receive a distribution pursuant to a

cash-out where such Participant has a vested percentage of zero percent (0%),

and such Participant resumes employment covered under this Plan before the date

such Participant incurs five (5) consecutive one-year Breaks-in-Service, upon

the reemployment of such Former Participant, the Employer-derived Account

balance of such Former Participant shall be restored to the amount on the date

of such deemed distribution.  If a

distribution occurs for any reason other than a Severance from Employment, the

time for repayment may not end earlier than five (5) years after the date of

separation.




 




(5) In the event the Former Participant does repay

the full amount distributed to him, or in the event of a deemed distribution,

the undistributed portion of the Participant’s

Account must be restored in full, unadjusted by any gains or losses occurring

subsequent to the Anniversary Date or other valuation date coinciding with or

preceding his termination.




 




(A)  The

source for such reinstatement shall first be from any Forfeitures occurring

during the year (or from a prior year). 

If such source is insufficient, then the Employer shall contribute an

amount which is sufficient to restore any such forfeited amounts provided,

however, that if a Discretionary Contribution is made for such year pursuant to

Section 3.01, such contribution shall first be applied to restore any such

Accounts and the remainder shall be allocated in accordance with Section

4.06(f).




 




(B)  With

respect to the repayment amount, the Plan Administrator shall make a

determination as to what portion of the repayment amount remains tax-deferred,

and what portion has been subject to federal income tax.  The Plan Administrator shall establish an

appropriate account for the returned distribution, designated as a returned

distribution, by source, and by tax status.




 




58





























 




7.04.       Disability Benefits.




 




(a)           In

general. Unless the Employer elects otherwise in

the Adoption Agreement disability benefits shall be provided prior to a

Participant’s Normal Retirement Age by reason of such Participant’s Disability.

Accordingly, upon a determination of a Participant’s Disability by the Plan

Administrator, a Participant’s vested percentage in his Employer Account shall

be 100% and the Vested Balance shall be payable to such Participant pursuant to

this Article VII and Article VIII, if applicable.




 




(b)           Determination of Disability.

The Plan Administrator shall require a Participant to establish that he or she

is disabled in order to obtain a distribution under the Plan by reason of such

Disability.  The Adoption Agreement

shall specify the evidence which a Participant shall be required to provide to

the Plan Administrator in order to establish Disability.  The Adoption Agreement shall specify which of

the following shall apply:




 




(1) A Participant

shall furnish to the Plan Administrator evidence that the federal Social

Security Administration has determined that the Participant is eligible to

receive total disability benefits under the federal Social Security Act; or




 




(2) A Participant

shall furnish to the Plan Administrator certification of such Disability from a

licensed doctor of medicine on a form to be provided by the Plan Administrator;

or




 




(3) A Participant

shall furnish to the Plan Administrator certification of such Disability,

obtained separately from at least two licensed doctors of medicine, on a form

provided by the Plan Administrator; or




 




(4) A Participant

shall be required to obtain a certification of such Disability from one or more

licensed doctors of medicine.  The

Employer shall designate the doctor or doctors from whom the Participant shall

obtain such certification.  In the event

that the Participant is required to obtain such certification of Disability

from a doctor or doctors designated by the Employer, the Employer shall bear

the cost incurred by obtaining such certification by such doctor or doctors.




 




The preceding

notwithstanding, the Adoption Agreement may specify a type or degree of certification

required to establish a Disability other than those stated in (1) through (4)

above.  In the event the Adoption

Agreement does not specify the type or degree of certification required to

establish a Disability, paragraph (1) above shall apply.




 




7.05.       Death Benefits.




 




(a)           Full

Vesting. Upon the death of any Participant while

in Service, his vested percentage in his Employer Account shall be 100% and his

Vested Balance along with any Death Benefit due to the Trust as a result of the

Participant’s death shall be payable to the Participant’s Surviving Spouse or,

if the Surviving Spouse consents, or if there is not a Surviving Spouse, to a

designated Beneficiary of the Participant. Such payment is to be made pursuant

to the provisions of Article VIII, if applicable.




 




59





























 




A Participant may

waive the benefits, otherwise payable hereunder to such Participant’s Surviving

Spouse, at any time, provided that no such waiver shall be effective unless it

satisfies the conditions of a Qualified Election made pursuant to Section

8.03(f) (other than the notification requirements referred to therein) that

would apply to a Participant’s waiver of the Qualified Pre-retirement Survivor

Annuity.




 




(b)           Payable

to Beneficiary. Upon the death of any Participant

after Severance from Employment, the remaining amounts in his Accounts which

were vested at the time of his termination shall be payable to his Beneficiary.




 




(c)           Death after distribution of balance.

If the Participant dies after distribution of his Vested Balance has commenced,

the remaining portion of such Vested Balance shall continue to be distributed

at least as rapidly as under the method of distribution being used prior to the

Participant’s death.




 




(d)           Death before distribution of balance.

If the Participant dies before distribution of his Vested Balance commences,

the Participant’s entire Vested Balance shall be completely distributed by

December 31 of the calendar year containing the fifth (5th) anniversary of the

Participant’s death except to the extent that an election is made to receive

distributions in accordance with (1) or (2) below:




 




(1) If any portion of the Participant’s Vested

Balance is payable to a designated Beneficiary, distributions may be made over

the life of the designated Beneficiary or over a period certain not greater

than the life expectancy of the designated Beneficiary, if permitted under the

Adoption Agreement, commencing on or before December 31 of the calendar year

immediately following the calendar year in which the Participant died; or




 




(2) If the designated Beneficiary is the

Participant’s Surviving Spouse, the date distributions are required to begin in

accordance with (1) above shall not be earlier than the later of: (i) December

31 of the calendar year immediately following the calendar year in which the

Participant died, or (ii) December 31 of the calendar year in which the

Participant would have attained age 70 1/2.




 




(e)           Calculation

of payments. For purposes of (d) above, payments shall

be calculated by use of the return multiples specified in Tables V and VI of

Regulations section 1.72-9 and in accordance with Proposed Regulations sections

1.401(a)(9)-1 and 1.401(a)(9)-2.




 




For the purpose of

this Section 7.05, distribution of a Participant’s interest is considered to

begin on the Participant’s Required Beginning Date (as defined in Section

7.07(b)), or if subsection (d) above is applicable, the date distribution is

required to begin to the Surviving Spouse pursuant to subsection (g) below.  If distribution in the form of an annuity

irrevocably commences to the Participant before the Required Beginning Date,

the date distribution is considered to begin is the date distribution actually

commences.




 




60





























 




(f)            Payment to a child of the

Participant. For purposes of paragraphs (c), (d)

and (e), any amount paid to a child of the Participant shall be treated as if

it had been paid to the Surviving Spouse if the amount becomes payable to the

Surviving Spouse when the child reaches the age of majority.




 




(g)           Miscellaneous.

Upon the death of any Participant, the Surviving Spouse can direct the

commencement of benefits 60 days after the end of the Plan Year in which the

death occurred.




 




Where an amount is

distributable under subsection (d) above, the Beneficiary must elect the method

of distribution no later than the earlier of:




 




(1) December 31 of the calendar year in which

distributions would be required to begin under subsection (d) above, or




 




(2) December 31 of the calendar year which

contains the fifth (5th) anniversary of the date of death of the Participant.




 




If the Participant has no designated Beneficiary, or

if the designated Beneficiary does not elect a method of distribution,

distribution of the Participant’s entire interest must be completed by December

31 of the calendar year containing the fifth (5th) anniversary of the

Participant’s death.




 




If the Participant

dies without a designated Beneficiary surviving such Participant, the

Participant’s entire interest shall be paid to such Participant’s estate.




 




7.06.       Certification of Severance from Employment.  The Plan Administrator shall certify to the

Trustee the fact of Severance from Employment of a Participant, and the amounts

due from his Accounts.




 




7.07.       Commencement of Benefits.




 




(a)           In

general. Upon a Participant’s entitlement to a

distribution of benefits under Section 7.02, 7.03, 7.04, 7.05 or 13.08, a

Participant shall file with the Plan Administrator a written election on such

form or forms, and subject to such conditions, as the Plan Administrator shall

provide.  A Participant may elect to

receive a distribution of benefits as soon as administratively

practicable.  Such election shall

specify whether distribution of benefits is to begin as soon as

administratively feasible, subject to the Plan’s provisions, or to be deferred

to the extent provided below. The Plan Administrator shall distribute a

Participant’s benefit pursuant to such Participant’s election, provided that,

if payments become due for any reason including retirement at or after age 65,

death or Disability, and if the amounts due from the Participant’s Accounts

(including Employer and Employee Contributions, but not including accumulated

deductible Employee Contributions) are in excess of $5,000 ($3,500 for Plan

Years prior to January 1, 1998) payment of such amounts shall be deferred to

the extent provided below unless the Participant consents in writing to earlier

payment. Furthermore, unless otherwise specified in the Adoption Agreement,

this provision shall not be subject to the provisions of Article VIII, nor

shall the consent of a Participant’s Spouse be required.




 




61





























 




(b)           Required minimum distributions.

For each Plan Year, a Participant’s required minimum distributions shall

satisfy Code section 401(a)(9) and section 1.401(a)(9) of the Proposed

Regulations, which are herein incorporated by reference.




 




(c)           Provisions

take precedence. The provisions set forth in

paragraphs (a) and (b) override any settlement options in the Plan inconsistent

with the above.




 




(d)           Distribution

commencement date. Except as limited in paragraphs

(a) and (b) above, the Trustee shall commence benefit payments for all claims

authorized for payment in a Plan Year no later than 60 days following the end

of the applicable Plan Year or as soon thereafter as is practicable, but in no

event later than 180 days after the end of the applicable Plan Year, except

where such delay is required by special circumstances.  Such special circumstances include the

transfer, merger and/or consolidation of assets of this Plan with another plan,

liquidation of assets or surrender of insurance contracts, the partial or full

termination of the Plan, or irregularities discovered in the books of the Plan

as a result of an audit or investigation of the Plan, or any other unusual

circumstances that would cause a prudent man to delay allocating earnings and

losses in the Trust.  Such benefit payments

shall be delayed until the Named Fiduciaries agree that the records and books

of the Plan are in sufficient order and in accordance with generally accepted

accounting practices so that benefit payments can fairly and accurately be

made.  In such matters, the decision of

the Named Fiduciaries shall be final, binding and conclusive.  Furthermore, unless a Participant elects

otherwise, and subject to the limitations in paragraphs (a) and (b), payment of

his benefits under this Plan shall be made or commence no later than the 60th

day after the later of:




 




(1) the end of the year of his 65th birthday; or




 




(2) the end of the year in which his employment

terminates. If benefits due from a Participant’s Accounts are paid as of the

date of entitlement to such benefits, any further amount which may be due from

a Participant’s Accounts shall be paid to the recipient no later than 60 days

following the end of the Plan Year in which Severance from Employment with the

Employer occurs.




 




Notwithstanding

the preceding, if a Participant elects, he or she shall receive a distribution

as soon as administratively practicable after such Participant requests a

distribution pursuant to Section 7.07(a).




 




(e)           Other

rules.  If

a distribution is made at a time when a Participant is not fully vested in his

Employer Account and the Participant may increase the Vested percentage in such

Account:




 




(1) a separate Account shall be established for

the Participant’s interest in his Employer Account, as of the time of the

distribution; and




 




(2) at any

relevant time, the Participant’s vested portion of the separate Account shall

be equal to an amount (“X”) determined by the formula:




 




62





























 




X equals P(A plus

(R x D)) - (R x D)




 




For purposes of

applying the formula: P is the vested percentage at the relevant time, A 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.




 




(f)            Distributions Prior to 30 Day Period.  A distribution, to which Code sections

401(a)(11) and 417 do not apply, may commence less than thirty (30) days after

the notice required under section 1.411(a)-11(c) of the Regulations.  Provided, however, that prior to such a

distribution:




 




(1) the Plan Administrator shall clearly inform

the Participant or Beneficiary or alternate payee that he or she has the right

to a period of at least thirty (30) days after receiving the notice to consider

the decision of whether or not to elect a distribution (and, if applicable, a

particular distribution option), and




 




(2) the Participant, Beneficiary, or alternate

payee, after receiving the notice affirmatively (by signing a waiver provided

by the Plan Administrator) waives such notice period and elects a distribution.




 




7.08.       Settlement Options.




 




(a)           In

general. 

Subject to the limitations set forth in the Adoption Agreement, and

subject to a Qualified Election, if the provisions of Article VIII apply, and

subject to the consent of the Participant’s Spouse, if the Adoption Agreement

requires spousal consent, distributions may only be made in one of the

following methods:




 




(1) In a single lump-sum in cash, and if the

Participant has an allocated life insurance contract and so elects, the life

insurance contract, and if the Plan and/or the Participant has invested in

Employer stock,  such Employer stock

shall be distributed entirely in cash, and if the Participant has a

self-directed brokerage account and so elects, in kind but only for the

self-directed brokerage account.




 




(2) In the form of a fixed number of annual,

semi-annual, quarterly, or monthly payments in an amount for each Plan Year

equal to the value of the Participant’s Account as of the Anniversary Date of

each Plan Year multiplied by a fraction, the numerator of which is one (1) and

the denominator is the number of years (or applicable period) remaining in such

specified period of  payments.  At 

the discretion of the Participant or Beneficiary, and, if required under

Article VIII or the Adoption Agreement, with the consent of the Spouse, the

payment of any benefits as a deferred payment may be accelerated and the unpaid

balance may be distributed to such Participant or Beneficiary in a lump sum.

Such payments shall not exceed the then life expectancy of the Participant or

the then life expectancy of the Beneficiary; provided, however, if the

Beneficiary is not the Spouse of the Participant and the Beneficiary’s life

expectancy is greater than the Participant’s life expectancy, then an amount

greater than 50% of the Participant’s Vested Balance shall be scheduled to be

paid within the 




 




63





























 




Participant’s life

expectancy as of the commencement date of such payments.




 




(3)  By the purchase of or providing an annuity.  However, such annuity may not be in any form

that will provide for payments over a period extending beyond either the life

of the Participant (or the lives of the Participant and his designated

Beneficiary) or the life expectancy of the Participant (or the life expectancy

of the Participant and his designated Beneficiary).  Furthermore, all annuity Contracts under this Plan shall be

non-transferable when distributed. The Terms of any annuity Contract purchased

and distributed to a Participant or Spouse shall comply with all the

requirements of the Plan.




 




(b)                                  Plan Administrator Options. The Plan Administrator may

satisfy the election of any annuity or installment option by the purchase of or

providing an annuity.  However, such

annuity may not be in any form that will provide for payments over a period

extending beyond either the life of the Participant (or the lives of the

Participant and his designated Beneficiary) or the life expectancy of the

Participant (or the life expectancy of the Participant and his designated

Beneficiary).  Furthermore, all annuity

contracts under this Plan shall be non-transferable when distributed.  The terms of any annuity contract purchased

and distributed to a Participant or Spouse shall comply with all the

requirements of the Plan.




 




(c)                                  Frequency of payments.  Periodic payments from an annuity shall be made not less

frequently than annually.




 




7.09.       Transitional Rules.




 




(a)           In general. 

Notwithstanding the other requirements of this Article, and subject to

the requirements of the Adoption Agreement, and of Article VIII, if applicable,

distribution on behalf of any Participant, including a Five Percent Owner, may

be made in accordance with all of the following requirements (regardless of

when such distribution commences).




 




(1) The distribution by the Plan is one which

would not have disqualified such Plan under Code section 401(a)(9) as in effect

prior to amendment by the Deficit Reduction Act of 1984.




 




(2) The distribution is in accordance with a

method of distribution designated by the Participant whose interest in the Plan

is being distributed or, if the Participant is deceased, by a Beneficiary of

such Participant.




 




(3) Such designation was in writing, was signed by

the Participant or the Beneficiary, and was made before January 1, 1984.




 




(4) The Participant had a balance in one or more

Accounts under the Plan as of December 31, 1983.




 




(5) The method of distribution designated by the

Participant or the Beneficiary specifies the time at which distributions shall

be made, and in the case of any 




 




64





























 




distribution upon

the Participant’s death, the Beneficiaries of the Employee listed in order of

priority.




 




(b)           Distribution upon death.  A distribution upon death of a Participant

shall not be covered by the transitional rule in this Section unless the

information in the designation contains the required information described

above with respect to the distributions to be made upon the death of the

Participant.




 




(c)           Method of distribution.  For any distribution which commenced before

January 1, 1984, but continued after December 31, 1983, the

Participant, or the Beneficiary to whom such distribution is being made, shall

be presumed to have designated the method of distribution under which the

distribution is being made if the method of distribution was specified in

writing and the distribution satisfies the requirements in subparagraphs (a)(1)

and (a)(5).




 




(d)           Method of distribution must satisfy Code section 401(a)(9).  If a designation is revoked, any subsequent

distribution must satisfy the requirement of Code section 401(a)(9), as

amended. Any changes in the designation shall be considered to be a revocation

of the designation.  If the designation

is revoked subsequent to the date distributions are required to begin, the

Trust must distribute by the end of the calendar year following the calendar

year in which the revocation occurs, the total amount not yet distributed which

would have been required to have been distributed to satisfy Code section

401(a)(9), and the proposed regulations thereunder, but for the Code section

242(b)(2) election. For calendar years beginning after December 31, 1988, but

before January 1, 2002, such distributions must meet the minimum distribution

incidental benefit requirements in section 1.401(a)(9)-2 of the Proposed

Regulations. However, the mere substitution or addition of another Beneficiary

(one not named in the designation) under the designation will not be considered

to be a revocation of the designation, so long as such substitution or addition

does not alter the period over which distributions are to be made under the

designation, directly, or indirectly (for example, by altering the relevant

measuring life). In the case where an amount is transferred or rolled over from

one plan to another plan, the rules in Q&A J-2 and Q&A J-3 of section

1.401(a)(9)-2 of the Proposed Regulations shall apply.




 




7.10.       Presumption of Mental Competency.




 




Each person

entitled to a payment hereunder shall be conclusively presumed to be mentally

competent until the date on which the Plan Administrator receives a written

notice in a form satisfactory to the Plan Administrator that such person is

mentally incompetent and that a guardian, conservator or other person legally

vested with the care of his estate has been appointed by a court of competent

jurisdiction.  Payments shall be made to

such guardian or conservator of the estate of the jurisdiction. Any such

payment so made shall be a complete discharge of any liability of the Plan.




 




65





























 




7.11.       Financial Hardship Withdrawals.




 




(a)           In

general.  A

withdrawal can be made on account of financial hardship only if the withdrawal

both is made on account of an immediate and heavy financial need of the

Employee and is necessary to satisfy such financial need. The Plan

Administrator shall determine the existence of an immediate and heavy financial

need and the amount necessary to meet the need, in accordance with the

nondiscriminatory and objective standards set forth in this Section. The

determination of whether an Employee has an immediate and heavy financial need

is to be made on the basis of all relevant facts and circumstances. A financial

need shall not fail to qualify as immediate and heavy merely because such need

was reasonably foreseeable or voluntarily incurred by the Employee.




 




In the event that the provisions of Article VIII shall

apply, as specified in the Adoption Agreement, a Participant shall be required

to obtain the consent of his or her Spouse prior to obtaining a Financial

Hardship Withdrawal.  Such consent shall

be in writing and shall be witnessed by a representative of the Plan or by a

notary public.  In the event that the

provisions of Article VIII shall not apply, as specified in the Adoption

Agreement, a Participant shall not be required to obtain the consent of his or

her Spouse prior to obtaining a financial hardship withdrawal unless the

Adoption Agreement specifically requires such consent.




 




(b)           Deemed

Financial Hardships.  A withdrawal shall be deemed to be made on account of an

immediate and heavy financial need of the Employee if the withdrawal is on

account of:




 




(1) Expenses for medical and/or dental care

described in Code section 213(d) previously incurred by the Employee, the

Employee’s Spouse, or any dependents of the Employee (as defined in Code

section 152) or necessary for these persons to obtain such medical or dental

care as described in Code section 213(d); or




 




(2) Costs directly related to the purchase of a

principal residence for the Employee (excluding mortgage payments); or




 




(3) Payment of tuition, related educational fees,

and room and board expenses for the next 12 months of post-secondary education

for the Employee, the Employee’s Spouse, children, or dependents (as defined in

Code section 152); or




 




(4) Payments necessary to prevent the eviction of

the Employee from his principal residence, or foreclosure on the mortgage of

the Employee’s principal residence.




 




The Employee shall

be required to submit evidence satisfactory to the Plan Administrator (such as

official third party documents) demonstrating the amount and nature of the

need. Generally, expenses which were incurred more than 12 months prior to the

date of the application for a financial hardship withdrawal, shall not be

deemed to be an immediate and heavy financial need.  The amount of an immediate and heavy financial need may include

any amounts necessary to pay any federal, state or local income taxes or

penalties reasonably anticipated to result from the withdrawal.




 




66





























 




(c)           Other

Financial Hardships.  Financial hardship withdrawals shall be limited to the reasons

specified in (b) above, unless otherwise specified in the Adoption Agreement.

However, if the Adoption Agreement specifies adoption of the general rule for

determining whether or not an Employee has an immediate and heavy financial

need, then the Plan Administrator shall make a determination based on all

relevant facts and circumstances.  A

financial need may be immediate and heavy even if it was reasonably foreseeable

or voluntarily incurred by the Employee.  

Generally, the expenses described in (b) above, and the expenses

incurred because of any of the events described below would be considered to

constitute an immediate and heavy financial need:




 




(1) A natural disaster;




 




(2) Death of a Spouse, a child, or a dependent;




 




(3) Divorce;




 




(4) Birth or

adoption of a child;




 




(5) Loss of full-time employment by a Spouse;




 




(6) Expenses or loss of income incurred by reason

of the Participant or the Participant’s Spouse who is a member of the military

reserves of the United States, being called into active duty;




 




(7) An unpaid leave of absence by the Participant;




 




(8) Legal expenses incurred on behalf of the

Employee, the Employee’s Spouse or children; or




 




(9) Payments to satisfy federal tax obligations

that have not been timely paid.




 




(d)           Other

available resources.  A withdrawal shall not be treated as necessary to satisfy an

immediate and heavy financial need of an Employee to the extent the amount of

the withdrawal is in excess of the amount required to relieve the financial

need or to the extent such need may be satisfied from other resources that are

reasonably available to the Employee. This determination generally is to be

made on the basis of all relevant facts and circumstances. The Employee’s

resources include those assets of an Employee’s Spouse and minor children that

are reasonably available to the Employee. 

However, property held for the Employee’s child under an irrevocable

trust or under the Uniform Gifts to Minors Act shall not be treated as a

resource of the Employee.  The amount of

an immediate and heavy financial need may include any amounts necessary to pay

any federal, state, or local income taxes or penalties reasonably anticipated

to result from the withdrawal.  A

withdrawal generally may be treated as necessary to satisfy a financial need if

the Plan Administrator relies upon the Employee’s written representation,

unless the Employer or Plan Administrator has actual knowledge to the contrary,

that the need cannot reasonably be relieved:




 




67





























 




(1) Through reimbursement or compensation by

insurance or otherwise;




 




(2) By reasonable liquidation of the Employee’s

assets, to the extent such liquidation would not itself cause an immediate and

heavy financial need;




 




(3) By cessation of Salary Deferral Contributions

under the Plan; or




 




(4) By other distributions or nontaxable (at the time

of the loan) loans from plans maintained by the Employer or by any other

employer, or by borrowing from commercial sources on reasonable commercial

terms in an amount sufficient to satisfy the need.




 




A need cannot be

reasonably relieved by one of the actions listed above if the effect would be

to increase the amount of the need. 

Notwithstanding (3) above, a Participant may, but shall not be required

to suspend or cease his or her Salary Deferral Contributions in the event the

Employer relies upon such Participant’s written representation regarding the

amount of withdrawal necessary to satisfy a financial need.




 




(e)           Withdrawal deemed necessary to satisfy

financial need.

Instead of a determination of the amount necessary to satisfy the financial

need being made under (d) above, the Employer may elect in the Adoption

Agreement to deem a withdrawal necessary to satisfy an immediate and heavy

financial need of an Employee if all of the following requirements are

satisfied:




 




(1) The withdrawal is not in excess of the amount

of the immediate and heavy financial need of the Employee (the amount of an

immediate and heavy financial need may include any amounts necessary to pay any

federal, state, or local income taxes or penalties reasonably anticipated to

result from the withdrawal);




 




(2) The Employee has obtained all distributions,

other than hardship withdrawals, and all nontaxable loans currently available

under all plans maintained by the Employer;




 




(3) If an Employee makes a hardship withdrawal

from this Plan, or any other plan maintained by the Employer, the Employee’s

Salary Deferral Agreement shall be revoked for the remainder of the Plan

Year.  This section will no longer apply

for plan years beginning after December 31, 2001;




 




(4)

Effective for Plan Years beginning after December 31, 2001, the Employer shall

prohibit the Employee from making elective contributions and Employee

contributions to the Plan and all other plans maintained by the Employer for 6

months after the receipt of the hardship withdrawal (however, this does not

include any mandatory Employee contribution to a defined benefit plan, nor does

it include an Employee’s contributions to a health or welfare benefit

plan).  A Participant who receives a

distribution of elective deferrals in calendar year 2001 on account of hardship

shall be prohibited from making elective deferrals and Employee contributions

under this and 




 




68





























 




all

other plans of the Employer for 6 months after receipt of the distribution or

until January 1, 2002, if later; and 




 




For Plan Years

beginning prior to January 1, 2002, the Employer shall prohibit the Employee

from making elective contributions and employee contributions to the Plan and

all other plans maintained by the Employer for at least 12 months after the

receipt of the hardship withdrawal (however, this does not include any

mandatory employee contribution to a defined benefit plan, nor does it include

an Employee’s Contributions to a health or welfare benefit plan); and




 




(5) The Employee may not make Salary Deferral

Contributions for the Employee’s taxable year immediately following the taxable

year of the hardship withdrawal in excess of the applicable limit under Code

section 402(g) for such next taxable year less the amount of such Employee’s

Salary Deferral Contributions for the taxable year of the hardship withdrawal.




 




(f)            Limitation on Amount Withdrawn.  Financial hardship withdrawals shall be made

only from Salary Deferral Contributions, and shall not be made from any income

allocable to Salary Deferral Contributions, nor shall financial hardship

withdrawals ever be made from Qualified Matching Contributions nor Qualified

Nonelective Contributions.  Financial

hardship withdrawals shall not be made from Matching Contributions and/or

Discretionary Contributions unless otherwise specified in the Adoption

Agreement.




 




7.12.       Attainment of Age 59-1/2.  If authorized in the Adoption Agreement, as of the date that a

Participant attains the age of 59 1/2, the Participant may withdraw all or any

part of his Vested Balance, and such withdrawal shall be made pursuant to

Article VIII, if Article VIII is applicable, as specified in the Adoption

Agreement.




 




7.13.       Other Withdrawals.




 




(a)(1)      Nondeductible

Employee Account. 

Unless prohibited in the Adoption Agreement, a Participant may, by

written notice to the Plan Administrator, withdraw from his Nondeductible

Employee Account a sum not greater than the amount of his prior Nondeductible

Employee Contributions (less any amount previously disbursed); plus any income

allocable thereto.




 




(a)(2)

     Rollover Account.  Unless prohibited in the Adoption Agreement, a

Participant may, by written notice to the Plan Administrator, withdraw a

portion or all of his Unrelated Rollover Account (less any amount previously

disbursed) at any time.




 




(b)           Restrictions on Certain Contributions. A Participant may not make

withdrawals from his Salary Deferral Account, Qualified Nonelective

Contributions Account or Qualified Matching Contributions Account prior to the

earlier of:




 




(1) his Severance from Employment, total and

permanent Disability, or death;




 




(2) his attainment of age 59 1/2;




 




69





























 




(3) proven financial hardship, subject to the

approval of the Plan Administrator (however, in no event shall Qualified

Matching Contributions and/or Qualified Nonelective Contributions be withdrawn

on account of financial hardship);




 




(4) the date of the sale by the Employer of

substantially all of the assets (within the meaning of Code section 409(d)(2)),

but only with respect to Participants who continue employment with the

corporation acquiring such assets;




 




(5) the date of the sale by the Employer of

interest in a subsidiary (within the meaning of Code section 409(d)(3)) with

respect to a Participant who continues employment with such subsidiary; or




 




(6) termination of the Plan without establishment

or maintenance of another defined contribution plan other than an employee

stock ownership plan (as defined in Code section 4975(e)(7)) or a Simplified

Employee Pension Plan (as defined in Code section 408(k)).




 




However, clauses

(4) and (5) shall not apply, if the sale is to a business that is an Affiliate

of the Employer, or if in conjunction with the sale, the buyer agrees to sponsor

this Plan or the buyer requests the assets and liabilities of the affected

Participants to be transferred to a Plan qualified under Code section 401(a)

maintained or installed by the buyer.




 




Furthermore, with

respect to clauses (4), (5) and (6) above, the Participants shall receive a

lump sum distribution (as defined by Code section 402(e)(4)) by reason of such

event.




 




(c)           Matching and Discretionary Accounts.  A Participant may not make withdrawals from

his Employer Matching Account or Employer Discretionary Account as set forth in

(b) above, unless otherwise specified in the Adoption Agreement.




 




7.14.       Denial of a Request for Benefits.




 




(a)           Content

of a denial. 

All claims for Plan benefits shall be subject to a full and fair

review.  If the Plan Administrator fully

or partially denies any claim for benefits under the Plan, the Plan

Administrator shall set forth in writing in a manner calculated to be

understood by the Participant or any other person claiming benefits, the

following information:




 




(1) the specific reason for the denial;




 




(2) the specific reference to the pertinent Plan

provisions on which the denial is based;




 




(3) a description of any additional material or

information necessary for the claimant to perfect the claim and an explanation

of why such material or information is necessary;




 




(4) the appropriate information as to the steps to

be taken for the claim to be submitted for review; and




 




70





























 




(5) an explanation of the Plan Administrator’s review

procedure as stipulated in this Plan.




 




(6) If notice of the denial of a claim is not

furnished to the claimant in accordance with the above within 90 days (unless

circumstances beyond the Plan Administrator’s control cause a lengthier period

before a determination of the validity of a claim can be made), the claim shall

be deemed denied.  The claimant shall

then be permitted to proceed to the review stage described in paragraph (b)

below.




 




(b)           Review

procedure.  The review procedure is as follows:




 




(1) Upon denial of a claim for benefits under the

Plan, the claimant must file a request in writing with the Plan Administrator

requesting that the claim be reviewed by the Plan Administrator.




 




(2) The written request for the claim to be

reviewed must be filed with the Plan Administrator no later than 60 days after

the claimant received written notification of the denial of the claim, or the

period described in subparagraph (a)(6) above, if applicable.  If the claim is sent to the Plan

Administrator by first class mail, the postmark shall be the date the written

request for review is submitted.




 




(3) The claimant may review all pertinent

documents relating to the denial of the claim at the Plan Administrator’s

office and at other locations, if any, so specified by the Plan

Administrator.  Upon written request,

the claimant may obtain copies of all pertinent documents relating to the

denial of the claim.  The Plan

Administrator may make a reasonable charge for the copies.




 




(4) The claimant

may submit any issues and comments regarding the denial of the claim, in

writing, to the Plan Administrator.




 




(5) The Plan Administrator shall afford such

Participant or other interested party a reasonable opportunity for a full and

fair review by the Plan Administrator of the claim under review.  The Plan Administrator shall take any and

all steps to obtain knowledge of all the pertinent facts and evidence that are

required, in the Plan Administrator’s judgment, to render a fair decision with

respect to the claim, including obtaining legal counsel.




 




(6) The Plan Administrator shall advise the

claimant in writing of its decision within 60 days after the Plan Administrator

received the written request for a review of the claim.   The 60-day time limit shall not be extended,

except where there are special circumstances that require such an extension,

and a written description of those circumstances is sent to the claimant within

the 60-day period.  If there is such an

extension, a decision shall be made as soon as practicable, but not later than

120 days after the receipt by the Plan Administrator of the written request for

the claim to be reviewed.




 




71





























 




(7) The Plan Administrator’s decision of the claim

for review shall be communicated to the claimant in writing and, if applicable,

shall include specific references to the pertinent Plan provisions on which the

decision was based.




 




7.15.       Disputed Benefits.  If any dispute shall arise between a

Participant or other person claiming benefits under the Plan, and the Plan

Administrator, after the review of the claim for benefits, or in the event of

any dispute as to the person to whom the payment of any benefit under the Plan

shall be made, the Trustee may withhold payment of all or any part of the

benefits payable hereunder to the Participant or other person claiming under

the Participant until such dispute has been resolved by a court of competent

jurisdiction or settled by the parties involved.




 




7.16.       Disputed Claims.    The Plan Administrator shall have the authority to review and

settle all claims against the Plan, including claims where the settlement

amount cannot be calculated under the Plan’s benefit formula.  This authority permits the Plan Administrator

to settle, in a compromised fashion, disputed claims for benefits and any other

disputed claims made against the Plan.




 




7.17.       Qualified Domestic Relations Orders.




 




(a)           In general.  All rights and benefits, including elections, provided to a

Participant in this Plan shall be subject to the rights afforded to any

alternate payee under a Qualified Domestic Relations Order. The Plan

Administrator is authorized to and shall establish written procedures to

effectuate the requirements for administering Qualified Domestic Relations

Orders.




 




(b)           Withdrawal

provisions. 

No withdrawal may be made under this Plan by a Participant during the

period in which the Plan Administrator is making a determination of whether a

domestic relations order affecting the Participant’s Account is a Qualified

Domestic Relations Order.  Further, if

the Plan Administrator is aware that a Qualified Domestic Relations Order is

being sought with respect to a Participant’s benefit, the Plan Administrator

may restrict the Participant’s ability to obtain any withdrawal otherwise

available under the Plan until the Plan Administrator has determined that such

withdrawal would not be inconsistent with any such order or that no such order

shall be submitted. If the Plan Administrator is in receipt of a Qualified

Domestic Relations Order with respect to any Participant’s benefit, it may

prohibit that Participant from obtaining a withdrawal until the alternate

payee’s rights under such order are satisfied.




 




(c)           Distribution

provisions.  No distribution may be made to a Participant during the period in

which the Plan Administrator is making a determination of whether a domestic

relations order affecting the Participant’s benefit is a Qualified Domestic

Relations Order. Further, if the Plan Administrator is aware that a Qualified

Domestic Relations Order affecting a Participant’s benefit is being sought, it

may prohibit such Participant from commencing to receive a distribution until

the Plan Administrator has determined that such distribution would not be

inconsistent with any such order or that no such order shall be submitted.  If the Plan Administrator is in receipt of a

Qualified Domestic Relations Order with respect to any Participant’s benefit,

it may prohibit such Participant from receiving a distribution until the

alternate payee’s rights under such order are satisfied.




 




72





























 




(d)           Beneficiary Designation.    Unless specifically stated otherwise in a

Qualified Domestic Relations Order, in the event of a final divorce decree, any

prior beneficiary designation of the ex-spouse by a Participant shall be null

and void.




 




(e)           Other

restrictions. 

If the Plan Administrator is in receipt of a domestic relations order,

or the Plan Administrator is otherwise aware that a Qualified Domestic

Relations Order affecting a Participant’s Account is being sought, the Plan

Administrator may take such actions as necessary (including, without

limitation, restricting the Participant’s ability to withdraw, borrow, or

direct the investment of funds in his or her Account) in order to administer

the Plan consistently with the terms of any such Qualified Domestic Relations

Order.




 




(f)            Payment commencement date.  Notwithstanding

any other provision of the Plan, in the event that a Qualified Domestic

Relations Order is received by the Plan Administrator, benefits shall be

payable in accordance with such order and with Code section 414(p) and ERISA

section 206(d).  Payments may be made

prior to the Participant’s “earliest retirement age” (as defined in Code

section 414(p) and ERISA section 206(d)), and are not subject to any other

distribution or withdrawal restrictions provided in this Plan.  The amount payable to the Participant and to

any other person other than the alternate payee named in the order shall be

adjusted accordingly.  If annuity

payments under this Plan have already commenced, the Qualified Domestic

Relations Order must provide how much of that dollar amount shall be paid to

the alternate payee.




 




Pursuant to

section 1.411(a)-11(c)(6) of the Regulations, and notwithstanding the

provisions of Article VII and Article VIII, if applicable, to the contrary,

distributions to an alternate payee under the Plan shall not require the

consent of the alternate payee, except as shall be provided for in the

Qualified Domestic Relations Order applicable to such alternate payee.  Any amounts held for the benefit of an

alternate payee under the Plan shall be immediately distributable, without the

consent of the alternate payee, after the Plan Administrator has determined

that an order is a Qualified Domestic Relations Order, pursuant to the Plan’s

written administrative procedures for administering Qualified Domestic

Relations Orders.




 




(g)           Alternate

payee’s death. 

In the absence of a Beneficiary designation for the alternate payee in

the Qualified Domestic Relations Order, the alternate payee shall be treated as

a single Participant under the Plan and the alternate payee’s interest shall

pass to his or her estate or other individuals, in accordance with the terms of

the Plan.




 




(h)           Miscellaneous.  If this Plan is a participant-directed plan

as provided under Article XI, upon the Plan’s receipt of a domestic relations

order affecting a Participant’s Accounts, the Participant shall continue to

direct the investments in his or her Accounts. 

Upon approval of the domestic relations order as a Qualified Domestic

Relations Order, the alternate payee of such accounts shall be entitled to

direct the investment of his or her own separate interest, unless the Qualified

Domestic Relations Order provides otherwise. 

If the alternate payee declines or otherwise fails to direct the

investments of his or her own separate interest in the Participant’s Accounts,

such separate interest shall be invested in the same manner as any other

portion of the Participant’s Account as of the split date.  Tax basis in Nondeductible Employee

Contributions shall be allocated on a pro rata basis, based on the ratio of the 




 




73





























 




alternate payee’s benefit to the Participant’s total

benefit (including the portion of his or her benefit assigned to the alternate

payee).  Alternate payees shall not be

entitled to borrow money under the Plan’s loan provisions.




 




7.18.       Designation of Beneficiary.




 




(a)           Spouse

is Beneficiary. 

The Beneficiary of any Death Benefit payable under the Plan shall be the

Participant’s Spouse.  Except, however,

the Participant may designate a Beneficiary other than his Spouse if:




 




(1) the Participant and his Spouse have validly

waived the Pre-retirement Survivor Annuity, if Article VIII is applicable, or

the Spouse has waived his or her right to be the Participant’s Beneficiary;




 




(2) the Participant has no Spouse; or




 




(3) the Spouse cannot be located.




 




Notwithstanding

the preceding, and pursuant to section 1.401(a)-20, Q&A-27 of the

Regulations, if it is established to the satisfaction of the Plan Administrator

that a Spouse is legally incompetent (as determined by applicable state law) to

give consent, the Spouse’s legal guardian (as appointed or recognized under

applicable state law), even if the guardian is the Participant, may give the

applicable consent.




 




(b)           Beneficiary

designation.  The designation of a Beneficiary shall be

made on a form satisfactory to the Plan Administrator. A Participant may at any

time revoke his designation of a Beneficiary or change his Beneficiary by

filing written notice of such revocation or change with the Plan Administrator.

However, the Participant’s Spouse must again consent in writing to any such

change or revocation unless the Spouse’s consent expressly permits designation

by the Participant without further consent by the Spouse.  In the event no valid designation of

Beneficiary exists at the time of the Participant’s death, the death benefit

shall be payable to his Spouse if living, and, if not, to his estate.  Any written consent by a Spouse of a change

of Beneficiary shall be consented to in writing, and such written consent shall

designate a Beneficiary which may not be changed without spousal consent (or

the consent of the Spouse expressly permits designations by the Participant

without any requirement of further consent by the Spouse), and the Spouse’s

consent shall acknowledge the effect of such election and shall be witnessed by

a notary public.  A party’s attorney-in-fact

shall be permitted to change the Beneficiary if and only if the power of

attorney includes the specific authority to make changes in the grantor’s

beneficial designations under employee benefit plans, and provided also that

all other requirements, including, if applicable, Spousal consent, have been

satisfied.




 




The preceding

notwithstanding, Spousal consent to a Participant’s election to waive death

benefits is not required if, pursuant to section 1.401(a)-20, Q&A-12(b) of

the Regulations, it is established to the satisfaction of the Plan

Administrator that the Spouse is legally incompetent to give consent.  Where such Spouse is not legally competent

to give consent, the Spouse’s legal guardian, even if the legal guardian is the

Participant, may give the 




 




74





























 




appropriate

consent.  For purposes of this Section,

legal guardianship and legal competency shall be determined by the laws of the

state having jurisdiction.




 




(c)           Alternate

payee.  An

individual who is designated as an alternate payee in a Qualified Domestic

Relations Order (as defined in Code section 414(p) and ERISA section 206(d))

relating to a Participant’s benefits under this Plan shall be treated as a

Beneficiary hereunder, to the extent provided by such order.




 




7.19.       Location of Beneficiary or Participant Unknown.  In the event that all, or any portion, of

the distribution payable to a Participant or his Beneficiary hereunder shall,

at the Participant’s attainment of his Normal Retirement Age, remain unpaid

solely by reason of the inability of the Plan Administrator to locate such

Participant or his Beneficiary, after sending a certified or registered letter,

return receipt requested to the last known address, then the Plan Administrator

may attempt to ascertain the whereabouts of such Participant or Beneficiary,

through programs established by the Social Security Administration or the

Internal Revenue Service. However, if such efforts should fail to locate such

Participant or Beneficiary, then the remaining amount distributable with

respect to such Participant or his Beneficiary may be reallocated in the same

manner as a Forfeiture, if so directed by the Plan Administrator. In the event

a Participant or Beneficiary is located subsequent to his benefit being

reallocated, and such person claims such reallocated benefit, such benefit

shall be restored out of current year Forfeitures, unadjusted for gains or

losses.  The preceding notwithstanding,

if an Employee has terminated Service with the Employer and the value of such

Employee’s vested Account is not greater than $5,000 ($3,500 for Plan Years

prior to January 1, 1998), the Employee’s Vested Balance shall be distributable

to such Employee immediately upon his date of termination, and the nonvested

portion shall become immediately forfeitable. If the Plan Administrator is not

able to locate an Employee described in the preceding sentence, after such

Participant has incurred a one-year Break-in-Service, the vested portion may be

treated as a Forfeiture, subject to reinstatement in the manner described in

this Section 7.19.




 




In the event that the

Plan is terminated, the benefits maintained in an account under the Plan, on

the date of such termination, for the benefit of a Participant, Beneficiary, or

Alternate Payee who cannot be located, shall be maintained outside the Plan.

Any such benefits may be maintained by the purchase of an annuity, the

establishment of an individual retirement arrangement (as described in Code

sections 408(a) or (b)), or by some other method or methods which meet

applicable Department of Labor requirements. The Plan Administrator shall have

the sole discretion in determining which method or manner, or combination

thereof, from among the preceding, shall be utilized for the purpose of

maintaining such benefits. The duty of the Named Fiduciaries (as defined in

Section 15.01) hereunder, to maintain any such benefits under the Plan, shall

be extinguished upon the placement of such benefits outside the Plan in the

manner described in this paragraph.




 




7.20.       Distribution for Minor Beneficiary.  In the event a distribution is to be made to

a minor, then the Administrator may direct that such distribution be paid to

the legal guardian, or if none, to a parent of such Beneficiary or a responsible

adult with whom the Beneficiary maintains his residence, or to the custodian

for such Beneficiary under the Uniform Gift to Minors Act or Gift to Minors Act

if such is permitted by the laws of the state in which the Beneficiary resides.  Such a payment to the legal guardian,

custodian or parent of a minor Beneficiary shall fully discharge the Trustee,

Employer, and Plan from further liability on account thereof.




 




75





























 




7.21.       Rollover Distributions.




 




(a)           Direct

Rollovers. 

The provisions of this Section shall apply to distributions made on or

after January 1, 1993.  Notwithstanding

any provision of the Plan to the contrary, that would otherwise limit a

Distributee’s election under this Section, a Distributee may elect, at the time

and in the manner prescribed by the Plan Administrator, to have any portion of

an Eligible Rollover Distribution paid directly to an Eligible Retirement Plan

specified by a Distributee in a Direct Rollover.




 




(b)           Definitions. The following definitions shall apply

for the purposes of this Section 7.21.




 




(1) Direct

Rollover means a payment by the Plan to the Eligible Retirement Plan

specified by a Distributee.




 




(2) Distributee

means any of the following: an Employee; a former Employee; an Employee’s or

former Employee’s Spouse; an Employee’s or former Employee’s Surviving Spouse;

an Employee’s or former Employee’s Spouse or former Spouse who is an alternate

payee under a Qualified Domestic Relations Order, as defined in Code section

414(p), with regard to the interest of such Spouse or former Spouse.




 




(3) Eligible

Retirement Plan,effective for Plan Years beginning after December 31, 2001, means an

individual retirement account described in Code section 408(a), an individual

retirement annuity described in Code section 408(b), an annuity plan described

in Code section 403(b), an eligible plan under section 457(b) of the Code which

is maintained by a state, political subdivision of a state, or any agency or

instrumentality of a state or political subdivision of a state, or a qualified

trust described in Code section 401(a), that accepts a Distributee’s Eligible

Rollover Distribution.




 




With respect to any Plan

Year commencing prior to January 1, 2002, Eligible

Retirement Plan, means an individual retirement account

described in Code section 408(a), an individual retirement annuity described in

Code section 408(b), an annuity plan described in Code section 403(b), or a

qualified trust described in Code section 401(a), that accepts a Distributee’s

Eligible Rollover Distribution. 

However, in the case of an Eligible Rollover Distribution to the

Surviving Spouse (or to a former Spouse who is an alternate payee under a

Qualified Domestic Relations Order), an Eligible Retirement Plan is an individual

retirement account or individual retirement annuity.




 




(4) Eligible

Rollover Distribution, effective for Plan Years beginning after December 31, 2001, means any

distribution of all or any portion of the balance to the credit of a

Distributee, except that an Eligible Rollover Distribution does not include:




 




(i)  any distribution that is one of a series of

substantially equal periodic payments (not less frequently than annually) made

for the life (or life expectancy) of a Distributee 




 




76





























 




or the joint lives

(or joint life expectancies) of a Distributee and the Distributee’s designated

Beneficiary, or for a specified period of ten years or more;




 




(ii)  any distribution to the extent required

under Code section 401(a)(9);




 




(iii) Effective

January 1, 1999, any hardship distribution described in Code section

401(k)(2)(B)(i)(IV); and




 




(iv) any hardship

distribution described in Code section 402(c)(4)(C).




 




A portion of a distribution shall not fail to be an Eligible Rollover

Distribution merely because the portion consists of Nondeductible Employee

Contributions that are not includible in gross income. However, such portion

may be transferred only to an individual retirement account or annuity

described in section 408(a) or (b) of the Code, or to a qualified defined

contribution plan described in section 401(a) or 403(a) of the Code that agrees

to separately account for amounts so transferred, including separately

accounting for the portion of such distribution which is includible in gross

income and the portion of such distribution which is not so includible.




 




With respect to any Plan

Year commencing prior to January 1, 2002, Eligible

Rollover Distribution, means any distribution of all or

any portion of the balance to the credit of a Distributee, except that an

Eligible Rollover Distribution does not include:




 




(i) any

distribution that is one of a series of substantially equal periodic payments

(not less frequently than annually) made for the life (or life expectancy) of a

Distributee or the joint lives (or joint life expectancies) of a Distributee

and the Distributee’s designated Beneficiary, or for a specified period of ten

years or more;




 




(ii)  any distribution to the extent required

under Code section 401(a)(9);




 




(iii) Effective

January 1, 1999, any hardship distribution described in Code section

401(k)(2)(B)(i)(IV);




 




(iv) the portion

of any distribution that is not includible in gross income (determined without

regard to the exclusion for net unrealized appreciation with respect to

Employer securities).




 




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ARTICLE VIII. JOINT AND SURVIVOR

ANNUITY REQUIREMENTS.




 




8.01.       Provisions of this Article take

Precedence.  The provisions of this Article

shall apply, notwithstanding any conflicting provision in this Plan, to any

Participant who is credited with at least one (1) Hour of Service with the

Employer on or after August 23, 1984, and such other Participants as provided

for in this Article, unless the Adoption Agreement (a) does not permit the

payment of benefits in the form of a life annuity; (b) does not permit

Plan-to-Plan Transfers; and (c) specifically excludes the provisions of this

Article.




 




8.02.       Qualified Joint and Survivor Annuity.  Unless an optional form of benefit is

selected by a Participant pursuant to a Qualified Election within the Notice

Period ending on the Annuity Starting Date, a married Participant’s Vested

Balance shall be paid in the form of a Qualified Joint and Survivor Annuity and

an unmarried Participant’s Vested Balance shall be paid in the form of a life

annuity.  A Participant may elect to

have such an annuity distributed upon the attainment of the Earliest Retirement

Age under the Plan and Adoption Agreement.




 




8.03.       Definitions. 

For purposes of this Article VIII, the following terms shall have the

meaning provided herein.




 




(a)           Annuity Starting Date

means the first day of the first period for which an amount is paid as an

annuity or any other form.




 




(b)           Earliest

Retirement Age means the earliest date on which,

under the Plan and Adoption Agreement, a Participant may elect to receive

retirement benefits.




 




(c)           Election

Period  means the period which begins on the first

day of the Plan Year in which a Participant attains age 35 and ends on the date

of a Participant’s death. If a Participant Separates from Service prior to the

first day of the Plan Year in which age 35 is attained, with respect to the

Account balance as of the date of separation, the Election Period shall begin

on the date of separation.




 




(d)           Pre-age

35 Waiver means the special Qualified Election

waiver of the Qualified Pre-retirement Survivor Annuity, by a Participant who

shall not have attained age 35 as of the end of any current Plan Year. Such

waiver shall be for the period beginning on the date of such election and

ending on the first day of the Plan Year in which the Participant shall attain

age 35.




 




Such special

Qualified Election shall not be valid unless a Participant receives a written

explanation of the Qualified Pre-retirement Survivor Annuity in such terms as

are comparable to the explanation required under Section 8.05.  Qualified Pre-retirement Survivor Annuity

coverage shall be automatically reinstated as of the first day of the Plan Year

in which the Participant attains age 35. Any new waiver on or after such date

shall be subject to the full requirements of this Article.




 




78





























 




(e)           Qualified Joint and Survivor Annuity

means an immediate annuity for the life of the Participant with a survivor

annuity for the life of the Spouse which is not less than fifty percent (50%)

nor more than one-hundred percent (100%) of the amount of the annuity which is

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

Account Balance. The percentage of the survivor annuity under the Plan shall be

fifty percent (50%) unless a different percentage is provided for in the

Adoption Agreement.




 




(f)            Qualified

Election means a waiver of a Qualified Joint and

Survivor Annuity or a Qualified Pre-retirement Survivor Annuity.  Any waiver of a Qualified Joint and Survivor

Annuity or a Qualified Pre-retirement Survivor Annuity shall not be effective

unless:




 




(1) a Participant’s Spouse consents in writing to

the election;




 




(2) 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);




 




(3) the Spouse’s consent acknowledges the effect

of the election; and




 




(4) the Spouse’s consent is witnessed by a Plan

representative or a notary public.




 




Also, a Participant’s

waiver of a Qualified Joint and Survivor Annuity shall not be effective unless

the Qualified Election designates the form of benefit payment (method of

distribution) which may not be changed without spousal consent (or the Spouse

expressly permits designations by the Participant without any further spousal

consent).




 




Exceptions to

spousal consent.  A waiver shall be

deemed a Qualified Election if it is established to the Plan Administrator’s

satisfaction that:




 




(1) there is no Spouse; or




 




(2) that the Spouse cannot be located; or




 




(3) pursuant to section 1.401(a)-20, Q&A-27 of

the Income Tax Treasury Regulations, the Spouse is legally incompetent to give

consent.




 




In the event that

the Spouse is not legally competent to give consent, then the Spouse’s legal

guardian, even if the guardian is the Participant, may give such consent.  For purposes of the preceding, legal

competency and legal guardianship shall be determined by state law.  Where there is a question as to which state

has jurisdiction to determine such matters, the Plan Administrator may

determine which jurisdiction shall control.




 




Any consent by a

Spouse obtained under this provision (or the establishment that the consent of

a Spouse may not be obtained) shall be effective only with respect to such

Spouse.  A consent that permits

designations by a Participant without any requirement of further consent 




 




79





























 




by such Spouse

must acknowledge that the Spouse has the right to limit consent to a specific

Beneficiary, and a specific form of benefit (method of distribution) where

applicable, and that the Spouse voluntarily elects to relinquish either or both

of such rights.  A revocation of a prior

waiver may be made by a Participant without the consent of the Spouse at any

time before commencement of benefits. 

The number of revocations shall not be limited.  No consent obtained under this provision

shall be valid unless a Participant has received notice as provided in Section

8.05.




 




8.04.       Qualified Pre-retirement Survivor Annuity.  Unless an optional form of benefit has been

selected by a Participant pursuant to a Qualified Election, if a Participant

dies before the Annuity Starting Date, then the Participant’s Vested Account

Balance shall be applied, at the discretion of the Surviving Spouse, toward the

purchase of an annuity for the life of the Surviving Spouse, subject to the

restrictions of Sections 8.07 and 8.08. The Surviving Spouse may elect to have

such annuity distributed within a reasonable period after the Participant’s

death.




 




8.05.       Notice Requirements.




 




(a)           Qualified Joint and Survivor Annuity.  In the case of a Qualified Joint and

Survivor Annuity as described in this Article, the Plan Administrator shall, no

less than thirty (30) days and no more than ninety (90) days prior to the

Annuity Starting Date, provide each Participant a written explanation of:




 




(1) the terms and conditions of a Qualified Joint

and Survivor Annuity;




 




(2) the Participant’s right to make, and the

effect of an election to waive, the Qualified Joint and Survivor Annuity form

of benefit;




 




(3) the rights of the Participant’s Spouse; and




 




(4) the right to make, and the effect of, a

revocation of a previous election to waive the Qualified Joint and Survivor

Annuity.




 




(b)           Qualified Pre-Retirement Survivor

Annuity. 

In the case of a Qualified Pre-retirement Survivor Annuity, the Plan

Administrator shall provide each Participant within the applicable period for

such 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 in subsection (a) above

applicable to a Qualified Joint and Survivor Annuity.




 




The applicable

period for a Participant is whichever of the following periods ends last:




 




(1) the period beginning with the first day of the

Plan Year in which a Participant attains age 32 and ending with the close of

the Plan Year preceding the Plan Year in which a Participant attains age 35;




 




(2) a reasonable period ending after an Employee

becomes a Participant;




 




80





























 




(3) a reasonable period ending after this Article

first applies to a Participant.




 




Notwithstanding

the preceding, notice must be provided within a reasonable period ending after

Severance from Employment in the case of a Participant who Separates from

Service before attaining age 35.




 




For purposes of

this subsection, a reasonable period ending after the enumerated events

described in (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 such date.  In the case of a

Participant who Separates from Service before the Plan Year in which age 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 such Participant shall

be redetermined in accordance with this Article.




 




8.06.       Transitional Rules.




 




(a)           In

general.  Participants

who satisfy the following conditions shall have the opportunity to elect to

have their benefits paid in accordance with subsection (b). This Section 8.06

applies to Participants who were not receiving benefits under the Plan on

August 23, 1984, and who:




 




(1) are credited with at least one (1) Hour of

Service under this Plan (or a predecessor plan) in a Plan Year beginning on or

after January 1, 1976, and had at least ten (10) Years of vesting Service when

they Separated from Service with the Employer; or




 




(2) are credited with at least one (1) Hour of

Service under this Plan (or a predecessor plan) on or after September 2, 1974,

and who are not otherwise credited with any Service in a Plan Year beginning on

or after January 1, 1976.




 




Participants

described in this subparagraph (a) shall be afforded the opportunity to make

the appropriate election during the period commencing on August 23, 1984, and

ending on the date benefits would otherwise commence to such Participants.




 




(b)           Right to Automatic Joint and Survivor

Annuity. 

For a Participant described in subsection (a) above, benefits under the

Plan shall be distributed in the form of a Qualified Joint and Survivor

Annuity, unless a Participant elects otherwise.  A Participant described in subsection (a)(2) above who has

elected to have his benefits paid in accordance with this Section 8.06, and any

Participant described in subsection (a)(1) above, who does not make such

election or who is described in subsection (a)(1), but does not have at least

ten (10) Years of vesting Service upon Severance from Employment, shall have

benefits distributed in accordance with all of the following requirements of

this subsection.




 




Benefits received

under the Plan shall be provided in the form of a Qualified Joint and Survivor

Annuity, unless a Participant has elected otherwise during the applicable

election period, if benefits in the form of a life annuity become payable to a

married Participant who:




 




81





























 




(1) begins to receive payments under the Plan on

or after Normal Retirement Age; or




 




(2) dies on or after Normal Retirement Age while

still working for the Employer; or




 




(3) begins to receive benefit payments on or after

Qualified Early Retirement Age; or




 




(4) Separates from Service on or after attaining

Normal Retirement Age (or Qualified Early Retirement Age) and after satisfying

the eligibility requirements for the payment of benefits under the Plan and

thereafter dies before beginning to receive such benefits.




 




For this

subsection (b), the applicable election period shall begin at least six (6)

months before a Participant attains Normal Retirement Age (or Qualified Early

Retirement Age) and shall end no more than 90 days before the commencement of

benefits.  Any election under this

provision shall be in writing and may be changed by a Participant at any time.




 




(c)           Election of early survivor annuity.  A Participant who is employed after

attaining Qualified Early Retirement Age, shall be able to elect, during the

applicable election period, to have a survivor annuity payable upon death.  If a Participant elects the survivor

annuity, payments under such annuity must not be less than the payments which

would have been paid to the Spouse under a Qualified Joint and Survivor Annuity

if such Participant had retired on the day before such Participant’s death.




 




For this

subsection (c), the applicable election period begins on the later of the 90th

day before a Participant attains Qualified Early Retirement Age, or the date on

which participation begins, and the election period ends on the date a

Participant terminates employment.  Any

election under this provision shall be in writing and may be changed by a

Participant at any time.




 




(d)           Qualified Early Retirement Age.  For purposes of Section 8.06, Qualified

Early Retirement Age is the latest of:




 




(1) the earliest date, under the Plan (or as

specified in the Adoption Agreement) on which a Participant may elect to

receive retirement benefits;




 




(2) the first day of the 120th month beginning

before a Participant reaches Normal Retirement Age; or




 




(3) the date a

Participant begins participation.




 




8.07.       Account Balance Not Greater than $5,000. 

The provisions of this Article shall not apply for any

Participant whose Vested Balance, at the Annuity Starting Date, is not greater

than $5,000.  Specifically, the

otherwise applicable consent requirements shall not apply.  In such event, a Participant’s Vested

Account Balance shall be distributed in a lump sum.




 




8.08.       Consent Required for Certain Distributions Exceeding $5,000.  A partial or total distribution may not be

made when the present value of the nonforfeitable accrued benefit (including

Employer and Employee contributions, but not including accumulated deductible

Employee 




 




82





























 




contributions)

exceeds $5,000, unless the distribution is consented to in writing by the

Participant and Participant’s Spouse, if any (or where either the Participant

or the Spouse has died, the survivor). 

Notwithstanding the preceding, a distribution may be made without

consent if, and only if, the distribution is automatically in the form of a

Qualified Pre-retirement Survivor Annuity or a Qualified Joint and Survivor

Annuity.




 




The consent of a

Participant and such Participant’s Spouse shall be obtained in writing within

the 90 day period ending on the Annuity Starting Date.  The Plan Administrator shall notify a

Participant and such Participant’s Spouse of the right to defer any

distribution until such Participant’s Account Balance is no longer immediately

distributable.  Notwithstanding the

preceding, only a Participant need consent to the commencement of a

distribution in the form of a Qualified Joint and Survivor Annuity while the

Account balance is immediately distributable. 

An Account is immediately distributable if any part of the Account

balance could be distributed to a Participant (or Surviving Spouse) before a

Participant attains (or would have attained if not deceased) the later of

Normal Retirement Age, or age 62.




 




For purposes of the

preceding paragraph, the applicable notice shall include a general description

of the material features, and an explanation of the relative values of, the

optional forms of benefit (methods of distribution) available under the

Plan.  Such explanation shall be in a

manner that would satisfy the notice requirements of Section 8.05(a), and Code

section 417(a)(3), and shall be provided no less than 30 days and no more than

90 days prior to the Annuity Starting Date.




 




83





























 




ARTICLE IX. TOP HEAVY PLAN.




 




The provisions of this

Article shall supersede any conflicting provisions in the Plan or Adoption

Agreement if the Plan is or becomes Top-Heavy for any Plan Year beginning after

December 31, 2001. For Plan Years commencing prior to January 1,

2002, Top-Heavy provisions are as set forth in Appendix A.




 




9.01.       Definitions.  If

the Plan is or becomes Top-Heavy in any Plan Year beginning after December 31,

2001, the provisions of this Article shall supersede any conflicting provisions

in the Plan or Adoption Agreement.




 




(a)           Determination

Date  means, with respect to any Plan Year, the

last day of the preceding Plan Year, or, in the case of the first Plan Year,

the last day of such Plan Year.




 




(b)           Permissive

Aggregation Group means that group of plans in a

Required Aggregation Group, together with any plan or plans of the Employer not

required to be included in the Required Aggregation Group, provided the

resulting group, taken as a whole, would continue to satisfy the provisions of

Code sections 401(a)(4) and 410




 




(c)           Present

Value of Accrued Benefits means the present

discounted value of all Participants’ accrued benefits under all defined

benefit plans maintained by the Employer, discounted using the interest and

mortality rates specified in the Adoption Agreement, if applicable.




 




(d)           Required

Aggregation Group means that group of plans

composed of each:




 




(1) 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 is terminated), and




 




(2) any other qualified plan of the Employer which

enables any plan in which a Key Employee participates to meet the requirements

of Code section 401(a)(4) or 410.




 




(e)           Top-Heavy Plan Year

means a Plan Year commencing after December 31, 2001, in which the Plan is a

Top-Heavy or a Super-Top-Heavy Plan.




 




(f)            Top-Heavy

Ratio means the following:




 




(1)

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 one-year (1) period ending on the

Determination Date has or has had accrued benefits, the Top-Heavy Ratio for

this Plan alone or for the Required Aggregation Group or the Permissive

Aggregation Group (whichever is applicable) is a fraction, the numerator of

which is the sum of the Total Balances of all Key Employees as of the

Determination Date (including any part of any Account balance distributed in

the one-year (1) period ending on the Determination Date, but 




 




84





























 




excluding

any Account balance due to unrelated Rollovers and/or Plan-to-Plan Transfers),

and the denominator of which is the sum of all Total Balances (including any

part of any Account balance distributed in the one-year (1) period ending on

the Determination Date, provided that with respect to death benefits, the

amount used for Top-Heavy testing is the amount determined as above immediately

prior to a Participant’s death, including the cash value of life insurance

policies, if any), both computed in accordance with Code section 416 and the

regulations promulgated thereunder. The preceding sentence shall also apply to

distributions under a terminated plan which, had it not been terminated, would

have been aggregated with the Plan under section 416(g)(2)(A)(i) of the Code.

In the case of a distribution made for a reason other than Severance from

Employment, death, or Disability, these provisions shall be applied by

substituting “five-year (5) period” for “one-year (1) period.” Both the

numerator and denominator of the Top-Heavy Ratio are adjusted to reflect any

contribution which is due but unpaid as of the Determination Date, but which is

required to be taken into account on that date under Code section 416 or the

regulations promulgated thereunder.




 




(2) If the Employer maintains one or more defined

contribution plans (including any Simplified Employee Pension Plan) and the

Employer maintains or has maintained one or more defined benefit plans which

during the one-year (1) period ending on the Determination Date has or has had

any accrued benefits, the Top-Heavy Ratio for any Required Aggregation Group or

Permissive Aggregation Group (whichever is applicable) is a fraction, the

numerator of which is the sum of Total Account Balances under the aggregated

defined contribution plan or plans for all Key Employees determined in

accordance with subsection (1) above (including any part of any Account balance

distributed in the one-year (1) period ending on the Determination Date,

but excluding any Account balance due to unrelated Rollovers and/or

Plan-to-Plan Transfers), and the Present Value of Accrued Benefits under the

aggregated defined benefit plan or plans for all Key Employees as of the

Determination Date, and the denominator of which is the sum of the Total Balances

under the aggregated defined contribution plans for all Participants (including

any part of any Account Balance distributed in the one-year (1) period ending

on the Determination Date, but excluding any Account Balance due to unrelated

Rollovers and/or Plan-to-Plan Transfers), and the Present Value of Accrued

Benefits under the defined benefit plan or plans for all Participants as of the

Determination Date, all determined in accordance with Code section 416 and the

regulations promulgated thereunder. The preceding sentence shall also apply to

distributions under a terminated plan which, had it not been terminated, would

have been aggregated with the Plan under section 416(g)(2)(A)(i) of the Code.

The accrued benefits under a defined benefit plan in both the numerator and

denominator of the Top-Heavy Ratio shall include any distribution of an accrued

benefit made in the one-year (1) period ending on the Determination Date.  In the case of a distribution made for a

reason other than Severance from Employment, death, or Disability, these

provisions shall be applied by substituting “five-year (5) period” for

“one-year (1) period.”




 




(3) For purposes of subsections (1) and (2) above,

the values used for determining the Top-Heavy Ratio shall be determined as of

the most recent Valuation Date that falls 




 




85





























 




within or ends

with the 12-month period ending on the Determination Date except as provided in

Code section 416 and the regulations promulgated thereunder for the first and

second years of a defined benefit plan. The Account balances and accrued

benefits of a Participant (A) who is not a Key Employee, but who was a Key

Employee in a prior year, or (B) who has not been credited with at least one

(1) Hour of Service with any Employer maintaining this Plan at any time during

the one-year (1) 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 shall be made in accordance

with Code section 416 and the regulations promulgated thereunder. Any amount

attributable to accumulated deductible Employee contributions (as defined in

Code section 72(o)(5)(A)) shall be disregarded for purposes of computing the

Top-Heavy Ratio. When aggregating plans, the value of Account balances and

accrued benefits shall be calculated with reference to the Determination Dates

that fall within the same calendar year.




 




The accrued

benefit of a Participant other than a Key Employee shall be determined under

(A) the method, if any, that uniformly applies for accrual purposes under all

defined benefit plans maintained by the Employer, or (B) if there is no such

method, as if such benefit accrued not more rapidly than the slowest accrual

rate permitted under the fractional rule of Code section 411(b)(1)(C).




 




9.02.       Determination of Top-Heavy and Super

Top-Heavy Status.




 




(a)           Top-Heavy Status.

  This Plan shall be a Top-Heavy

Plan for any Plan Year commencing after December 31, 2001, if any of the

following conditions exists:




 




 




(1) this Plan is not part of any Required

Aggregation Group or Permissive Aggregation Group of plans and the Top-Heavy

Ratio for this Plan exceeds 60%; or




 




(2) this Plan is a part of a Required Aggregation

Group of Plans but not part of a Permissive Aggregation Group, and the

Top-Heavy Ratio for the Required Aggregation Group of plans exceeds 60%; or




 




(3) 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 the Permissive Aggregation Group exceeds 60%.




 




(b)           Super

Top-Heavy Status.   This Plan shall be a Super-Top-Heavy Plan for any Plan Year

commencing after December 31, 2001, if, after first substituting the term 90%

for the term 60% each time it appears in Section 9.02 (a), the Plan would meet

the test for being a Top-Heavy Plan specified therein.




 




9.03.       Special Vesting Requirements.   For any Top-Heavy Plan Year, the vesting

schedule shall provide for 100% vesting after three (3) Years of Service unless

the vesting schedule in the Adoption Agreement provides for vesting on a

schedule which is at least as rapid as required for Top-Heavy plans under Code

section 416(b). The minimum vesting schedule applies to all benefits within the






 




86





























 




meaning of Code

section 411(a)(7) except those attributable to Participant contributions (which

shall be 100% vested at all times), including benefits accrued before the

effective date of Code section 416 and benefits accrued before the Plan became

a Top-Heavy Plan. Further, no reduction in vested benefits may occur in the

event the Plan’s status as a Top-Heavy Plan changes for any Plan Year. However,

this Section does not apply to the Employer Account balance of any Employee who

does not have one Hour of Service after the Plan has initially become a

Top-Heavy Plan; such Employee’s vested percentage in his Employer Account shall

be determined without regard to this Section.




 




9.04.       Special Minimum Allocation

Requirements.




 




(a)           In general.   For any Top-Heavy Plan Year, except as

otherwise provided in subsection (b) below, for purposes of the minimum

Top-Heavy allocation, the Employer Contributions and Forfeitures allocated on

behalf of any Participant who is not a Key Employee shall not be less than the

lesser of three percent (3%) of such Participant’s 414(q) Compensation or (in

the case where the Employer has no defined benefit plan which designates this

Plan to satisfy Code section 401) the largest percentage of Employer

Contributions and Forfeitures, as a percentage of the lesser of a Key

Employee’s 414(q) Compensation, or Annual Limitation (adjusted pursuant to Code

section 401(a)(17)), allocated on behalf of any Key Employee for such year.




 




The minimum

allocation shall be determined without regard to any Social Security

contributions. The minimum allocation required (to the extent required to be

nonforfeitable under Section 9.03 and Code section 416(b)) shall not be

forfeited under Code section 411(a)(3)(B) or 411(a)(3)(D). This minimum

allocation shall be made even though, under other Plan provisions, a

Participant would not otherwise be entitled to receive an allocation, or would

have received a lesser allocation for the year because of:




 




(1) a Participant’s failure to complete a

specified number of Hours of Service (if any, as set forth in the Adoption

Agreement); or




 




(2) a Participant’s failure to make or authorize

any Salary Deferral Contributions; or




 




(3) Compensation less than a stated amount.




 




A minimum Top-Heavy allocation, made on behalf of a

Non-Key Employee shall be allocated to a Non-Key Participant’s Salary Deferral

Account for each Plan Year in which the Plan is a Top-Heavy Plan. Salary

Deferral Contributions, Matching Contributions and Employer Contributions (and

any other Employer Contributions) to the Plan shall be combined to determine

the largest contribution made or required to be made for Key Employees.




 




The preceding provisions

of this Section 9.04 shall not apply to this Plan if, pursuant to the Adoption

Agreement, this Plan enables a qualified defined benefit plan in the Required

Aggregation Group of the Employer to meet the requirements of Code section

401(a)(4) or Code section 410.




 




87





























 




(b)           Special

Rules.




 




(1)  In determining a Non-Key Employee’s required

minimum allocation, such a Non-Key Employee’s Salary Deferral Contributions for

the Plan Year shall not be taken into account.




 




(2)  The provisions in subsection (a) above shall

not apply to any Participant who was not employed by the Employer on the last

day of the Plan Year (unless otherwise specified in the Adoption Agreement).




 




(3)  The provisions of subsection (a) shall not

apply to any Participant to the extent such Participant is covered under any

other qualified plan or plans (including another plan that consists solely of a

cash or deferred arrangement which meets the requirements of section 401(k)(12)

of the Code and Matching Contributions with respect to which the requirements

of section 401(m)(11) of the Code are met) of the Employer and the Employer has

provided in the Adoption Agreement that the minimum allocation or benefit

requirement applicable to Top-Heavy Plans shall be met in such other plan or

plans.




 




(4)  Matching Contributions shall be taken into

account for purposes of satisfying the minimum contribution requirements of

section 416(c)(2) of the Code and the Plan. The preceding sentence shall apply

with respect to Matching Contributions under the Plan or, if the Plan provides

that the minimum contribution requirement shall be met in another plan, such

other plan. Matching Contributions that are used to satisfy the minimum

contribution requirements shall be treated as Matching Contributions for

purposes of the actual contribution percentage test and other requirements of

section 401(m) of the Code.




 




9.05.       Special Multiple Plan Rules.




 




(a)           General rule. For any Top-Heavy Plan Year, the

term “1.0” shall be substituted for the term “1.25” each time such term appears

in the definition of defined benefit plan fraction and the definition of the

defined contribution plan fraction as provided in Section 5.02.




 




(b)           Employees participating in only the

defined benefit plan.  Employees participating in only the defined benefit plan shall

receive the defined benefit minimum contribution required by Code section 416.

Employees participating in only this Plan shall receive the minimum allocation

required under Section 9.04




 




(c)           Employees

participating in both plans.  Employees participating in both this Plan

and a defined benefit plan maintained by the Employer are not required to

receive a minimum contribution under each plan. The Plan Administrator shall

set forth which of the applicable provisions below shall override the other

terms of the Plan, to the extent necessary to satisfy the requirements of Code

section 415 and/or avoid duplication of the required aggregation of multiple

plans.




 




(1) The Employer shall provide the minimum

contribution solely under this Plan, and the minimum contribution must equal

five percent (5%) of each Non-Key Employee’s




 




88





























 




414(q)

Compensation for each year with respect to which both plans are treated as

Top-Heavy; or




 




(2) The Employer shall provide the minimum benefit

under the defined benefit plan required by Code section 416 for each year with

respect to which both plans are treated as Top-Heavy; or




 




(3) The Employer shall provide the minimum benefit

by a floor offset approach (pursuant to Revenue Ruling 76-259, 1976-2 C. B.

111) under which the defined benefit minimum is provided in the defined benefit

plan and is offset by the benefits provided under this Plan.




 




(4) The Plan

Administrator shall prove, using a comparability analysis (pursuant to Revenue

Ruling 81-202, 1981-2 C. B. 93) that the plans are providing benefits at least

equal to the defined benefit minimum.




 




9.06.       Change from Top-Heavy Plan to Non

Top-Heavy Plan.  In the event that the Plan becomes a Top-Heavy Plan, such change

shall be treated as a Plan amendment which affects the vesting schedule. In the

event that the Plan, thereafter, ceases to be a Top-Heavy Plan, the effect of

again following the regular vesting schedule(s) (as specified in the Adoption

Agreement) shall be treated as a Plan amendment which affects the vesting

schedule, and shall be governed by the provisions of Section 6.04.




 




9.07        Safe

Harbor Contribution Plan.  The Top-Heavy requirements of section 416 of

the Code and Sections 9.01 through 9.06 of the Plan shall not apply in any year

beginning after December 31, 2001, in which the Plan consists solely of a cash

or deferred arrangement which meets the requirements of section 401(k)(12) of

the Code and Matching Contributions with respect to which the requirements of section

401(m)(11) of the Code are met.




 




With

respect to any Plan Year commencing prior to December 31, 2001, Appendix A

shall apply for purposes of determining whether the Plan is a Top-Heavy plan

under section 416(g) of the Code for Plan Years, and whether the Plan satisfies

the minimum benefits requirements of section 416(c) of the Code for such years.




 




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ARTICLE X. PLAN ADMINISTRATOR.




 




10.01.     Plan Administrator.  The Plan Sponsor shall be the Plan Administrator, unless the Plan

Sponsor, by action of its governing body, appoints one or more individuals, or

another company, as Plan Administrator. 

Any person, including, but not limited to, the Employees of the Plan

Sponsor, shall be eligible to serve as the Plan Administrator.  Any person or company so appointed shall

signify his acceptance by filing written acceptance with the Plan Sponsor.  A Plan Administrator may resign by delivering

his written resignation to the Plan Sponsor or be removed by the Plan Sponsor

by delivery, to the Plan Administrator, of written notice of removal.  Such removal shall take effect on the date

specified in the written notice, or, if no date is so specified, upon delivery

to the Plan Administrator. Upon the resignation or removal of a Plan

Administrator, the Plan Sponsor shall promptly designate in writing a successor

to this position. If the Plan Sponsor does not appoint a successor Plan

Administrator, the Plan Sponsor shall function as the Plan Administrator.




 




If the Plan Sponsor

serves as Plan Administrator, the Plan Sponsor may, by action of its governing

body, appoint a committee consisting of more than one (1) person (hereinafter

referred to as the “Committee”) who shall assist the Plan Administrator in the

administration of the Plan.  All actions

taken by the Committee shall be deemed actions taken by the Plan Administrator,

and the Plan Administrator shall, alone, have Fiduciary responsibility in

connection with such actions, except with respect to willful misconduct or

gross negligence.  All usual and

reasonable expenses of the Committee may be paid in whole or in part by the

Plan Administrator, and expenses not paid by the Plan Administrator shall be

paid by the Trustee out of the principal or income of the Trust.  The members of the Committee shall not

receive compensation with respect to their services for the Committee.  The Committee shall have such powers as may

be necessary to discharge its duties, including all powers set forth in Section

10.03(b).  A majority of the members of

the Committee shall constitute a quorum for the transaction of business.  No action shall be taken except upon a

majority vote of the Committee members. 

An individual shall not vote or decide upon any matter relating solely

to himself or vote in any case in which his individual rights or claim to any

benefit under the Plan is particularly involved.  If, in any case in which a Committee member is so disqualified to

act, and the remaining members cannot agree, the governing body of the Plan

Sponsor shall appoint a temporary substitute member to exercise all the powers

of the disqualified member concerning the matter relating to such

disqualification.




 




10.02.     Signatures. 

The Plan Administrator shall designate the person or persons who shall

be authorized to sign for the Plan Administrator.




 




10.03.     General Powers and Authority of Plan

Administrator.




 




(a)           Plan

Administrator is a Fiduciary.  The Plan Administrator shall be a Named

Fiduciary of the Plan.




 




(b)           Powers of Plan Administrator.  The Plan Administrator shall control and

manage the operation and administration of the Plan according to its terms and

provisions, and shall have all powers necessary to accomplish these purposes,

including, but not limited to, the sole and absolute discretion:




 




90





























 




(1) to make written rules, regulations and by-laws

for the administration of the Plan, provided such are not inconsistent with the

terms and provisions of the Plan, copies of which shall be delivered to the Trustee

and to the Employer in order to be effective;




 




(2) to construe, within its sole discretion, all

terms, provisions, conditions and limitations of the Plan (provided that, in

all cases the construction which shall be required and which shall control shall

permit the Plan to comply with ERISA or qualify under Code section 401);




 




(3) to correct any defect, supply any omission, or

reconcile any inconsistency that may appear in this Plan, in such manner and to

such extent as it shall deem expedient to carry the Plan into effect for the

greatest benefit of all interested parties;




 




(4) to select, employ and compensate such

investment professionals, retirement plan professionals, accountants, advisers,

attorneys, recordkeepers, consultants, advisors and other agents and employees

as it may deem necessary or advisable in the proper and efficient

administration of this Plan;




 




(5) to determine all questions relating to

eligibility for participation, vesting and benefits, including the authority to

settle, in a compromised fashion, any disputed claims against the Plan;




 




(6) to direct the Trustee concerning the payment

and distribution of the Trust Fund;




 




(7) to establish and maintain records concerning

the Accounts of the Participants;




 




(8) to determine,

through a reasoned process, the appropriate allocation of expenses between the

Plan Sponsor and the Plan;




 




(9) to file with the appropriate government agency

(or agencies) annual reports, plan descriptions, summary plan descriptions, and

other pertinent documents which may be duly requested;




 




(10) to determine

the proper voting of proxy materials, except with respect to Employer

Securities (as defined in Section 11.04(a)), related to the Investment Options

(as defined in Section 11.02) or to appoint a committee to handle the

same.  Generally, a proxy will be voted

to support the management proposals, however, proposals which could be

detrimental to the interests of the Plan and the Participants will be voted

against;




 




(11) to delegate to one or more officers of the

Employer, or, if there is a Committee, to one or more members of the Committee,

the right to act on behalf of the Plan Administrator in all matters connected

with the administration of the Plan and Trust;




 




(12) to delegate to one or more individuals such

of the above powers and duties as the Plan Administrator shall deem

appropriate;




 




91





























 




(13) to establish

reasonable contingency plans in the event there is a failure of the written

rules, regulations and by-laws for the administration of the Plan due to the

year 2000; and




 




(14) to interpret

“written,” including any derivative of that term, in accordance with statutory

and regulatory provisions which impact electronic transmissions and retention

of information and documentation.




 




Notwithstanding

any other provisions of this Plan to the contrary, the Plan Administrator may

establish reasonable alternative procedures to manage the operation and

administration of the Plan, in the event that there is a failure of standard

practices and procedures due to a year 2000 problem.




 




10.04.     Uniform Administration.  Whenever, in the administration of the Plan, any action is taken

by the Plan Administrator, such action shall be uniform in nature as applied to

all persons similarly situated and no such action shall be taken which shall

discriminate in favor of Participants who are officers, shareholders, or are

Highly Compensated Participants.




 




10.05.     Finality of Decision.  The decision of the Plan Administrator in matters within its jurisdiction

involving the Plan shall be final, binding and conclusive upon the Employer and

upon each Employee, Participant, Beneficiary, alternate payee and every other

person or party.  The Plan Administrator

shall have the exclusive discretionary authority to construe the terms of the

Plan, and the exclusive discretionary authority to determine eligibility for

all benefits hereunder.  Any such

determination and/or interpretation, of the Plan, adopted by the Plan Administrator

shall be final and conclusive and shall bind all parties.




 




10.06.     Self Interest of Participant. 

No agent or representative of the Plan Administrator shall

have any right to vote or decide upon any matter relating solely to himself, or

to any of his rights, or benefits under the Plan.




 




10.07.     Plan Records. 

The Plan Administrator shall keep appropriate records of its acts and

determinations in the administration of the Plan, and shall make such records

as they pertain to any Participant or Beneficiary available for examination by

such Participant, Beneficiary, or alternate payee during normal business hours.




 




10.08.     Bonding and Liability of Plan

Administrator.  A bond or other security shall be required

of any individual empowered to act on behalf of the Plan Administrator to the

extent required by ERISA. The Employer shall indemnify and save such

individuals, and hold each of them harmless from the effects and consequences

of their acts, their omissions and conduct in their official capacity, except

to the extent that such effects and consequences shall result from their own

willful misconduct or gross negligence.




 




10.09.     Reporting and Disclosure.  The Plan Administrator shall file or cause to

be filed with the appropriate offices of the Internal Revenue Service and the

Department of Labor all reports, returns, notices and other information

required under ERISA, the Code, or applicable regulations and shall provide the

Participants and their Beneficiaries, and any alternate payees with such

information as may be required by ERISA, the Code, or any applicable

regulations.




 




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10.10.     Power and Responsibilities of the

Employer.




 




(a)           Duties.  The Employer shall supply all such

information to the Plan Administrator and the Trustee as is necessary for each

to fulfill its duties hereunder.




 




(b)           Power to appoint Trustee and Plan

Administrator. 

The Employer shall be empowered to appoint and remove the Trustee,

Additional Trustees, Successor Trustees, Joint Trustees, Co-Trustees and/or the

Plan Administrator from time to time as it deems necessary for the proper

administration of the Plan.




 




(c)           Funding

policy method.  The Employer shall establish a “funding policy and method,” i.e.,

it shall determine whether the Plan has a short term need for liquidity (e.g.,

to pay benefits) or whether liquidity is a long term goal and investment growth

(and stability of the same) is a more current need, or may appoint a qualified

party to do so.  The Employer or its

delegate shall communicate such needs and goals to the Trustee, who shall

coordinate such Plan needs with its investment policy.  The communication of such a “funding policy

and method” shall not, however, constitute a directive to the Trustee as to

investment of the Trust Funds.  Such

funding policy and method shall be consistent with the objectives of this Plan

and with the requirements of Title I of ERISA.




 




(d)           Service

of legal process. 

The Employer shall serve as agent for the service of legal process at

its principal office.




 




(e)           Performance

reviews. 

The Employer shall periodically review the performance of any Fiduciary

or other person to whom duties have been delegated or allocated by it under the

provisions of this Plan or pursuant to procedures established hereunder.  This requirement may be satisfied by formal

periodic review by the Employer or by a qualified party specifically designated

by the Employer, through day-to-day contact and evaluation, or through other

appropriate means.




 




10.11.     Payment of Expenses. 

All expenses of administration not paid by the Employer or charged to

the Participant shall be paid out of the Trust Fund. Such expenses shall

include any reasonable expenses incident to the administration of the Plan,

including, but not limited to, reasonable fees of retirement plan and

investment professionals, accountants, counsel, consultants, advisers and other

specialists and their agents, and other costs of administering the Plan,

including, but not limited to, fees associated with any investment option or

with activities related to Participants and their Accounts (e.g., processing

loans, hardship withdrawals, or investment direction).  Until paid, the expenses shall constitute a

liability of the Trust Fund.  However,

the Employer may reimburse the Trust Fund for any administration expenses

incurred. Any administration expenses paid to the Trust Fund as a reimbursement

shall not be considered an Employer contribution.




 




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ARTICLE XI. PARTICIPANT DIRECTION OF

INVESTMENTS.




 




11.01.     Participant-Directed Investment

Account. Unless otherwise specified in

the Adoption Agreement, each Participant shall be empowered to direct the

investment of his monies in all his Accounts among the Investment Options made

available under the Plan.  In this regard,

unless otherwise specified in the Adoption Agreement, the Plan shall be

intended to be an ERISA section 404(c) plan and, thereby, the Plan Fiduciaries

may be relieved of liability for losses which may occur as a result of

Participants’ investment direction. Notwithstanding the general and specific

powers granted the Trustee under the Trust, the Trustee shall invest all or a

portion of the Participants’ Accounts in the amounts and manner set forth in

this Article, unless otherwise specified in the Adoption Agreement.  The transfers of monies between Investment

Options shall be invested at the direction of the Plan Administrator.  The amounts and timing of the transfers shall

be provided in the form of written instruments from the Plan Administrator to the

Trustee.




 




11.02.     Investment Options  The Employer, with the consent of the Trustee, shall establish,

maintain and make available to Participants a selection of options for the

investment of all Participants’ Accounts. 

The Employer, with the consent of the Trustee, shall select these

options from time to time in its sole discretion.  Such options shall be referred to herein as Investment

Options.  At any time, the Trustee or

Employer may, at their sole discretion, close any option to future

purchases.  Investment Options may have

different investment objectives and varying degrees of risk and potential for

appreciation.  Such Investment Options

may include, without limitation, shares of registered investment companies,

pooled separate accounts of life insurance companies, single or commingled

trust offered by a bank, group annuity contracts with life insurance companies,

employer securities, limited partnerships, and certificates of deposit, or any

combination thereof.  The Employer shall

provide such investment information as shall be necessary to comply with the

regulations issued pursuant to ERISA section 404(c).




 




11.03.     Investment Direction.




 




(a)           Investment

election.  A Participant who has established any Account within the Plan

shall, by filing a written direction with the Plan Administrator, specify the

percentage of his Accounts which are to be invested in each of the Investment

Options described in Section 11.02. The Plan Administrator may limit the

percentage alternatives available in a uniform and non-discriminatory manner.

Any investment direction given by a Participant shall be deemed to be a

continuing direction until changed.




 




94





























 




(b)           Absence of affirmative direction.  If a Participant fails to provide the Plan

with an investment direction, the Plan Administrator will direct the investment

of the Participant’s account, until such time as the Participant provides his

or her first affirmative direction.  In

consideration of the risk tolerances, time horizons and investment needs of the

average Participant, and of the common investment allocations of large

retirement plans, Accounts for Participants who do not affirmatively select

their investment options will be invested according to the percentage allocations

of the moderate asset allocation model. 

Such monies will continue to be invested using the percentage

allocations of that model until and unless the Plan Administrator decides to

change this decision for all Participants who have not provided investment

directions or until the Plan Administrator determines that a different

investment selection is appropriate for a Participant.  In making these decisions, the Plan

Administrator is not responsible for inquiring into the specific goals or needs

of a Participant.




 




(c)           Change of investment election.

 As of the beginning of the Plan

Year, and at least quarterly thereafter (unless otherwise specified in the

Adoption Agreement), and at any other time so designated by the Plan

Administrator, a Participant may, by a writing filed with the Plan

Administrator, establish new investment directions. The Plan Administrator may

implement such procedural rules it deems necessary to permit the transfer among

the Investment Options.




 




(d)           Transfers

between options. 

Participants shall be provided with a reasonable opportunity to give

investment instructions in writing to the Plan Administrator, who shall comply

with such instructions.  The Plan

Administrator shall decline instructions which would generate income that would

be taxable to the Trust. The Plan Administrator shall also establish

limitations on the frequency with which a Participant may give investment

instructions.  Compliance with such

instructions shall at all times be subject to any restrictions provided under

the applicable contracts with the investment products.




 




(e)           Oral

instructions. 

The Plan Administrator may, at its sole discretion, establish procedures

to receive investment instructions orally. 

If such procedures are established, any oral instruction shall be

followed by a written confirmation of such instructions and shall be sent to

the Participant by first class mail or other reasonable means.




 




(f)            Other

restrictions. 

If a Plan is subject to the provisions of this Article, and a

Participant or Beneficiary requests a distribution of his benefits, the timing,

manner and form of any such distribution shall be subject to the conditions and

obligations of the investment option or options selected by the Participant, as

well as those of the Plan.  Furthermore,

the Plan Administrator shall have the authority, for administrative reasons, to

instruct the Trustee to transfer monies to a segregated option that is a

federally insured savings account, certificate of deposit in a bank or savings

and loan association, money market option, or other short-term debt security

acceptable to the Trustee until such time as an allocation pursuant to this

Plan can be made.  Such administrative

reasons shall include, but are not limited to, the transfer of monies from another

plan to this Plan, the liquidation of an investment option, the delivery of

monies to the Trust upon the maturity of bonds or Guaranteed Investment

Contracts or other such instruments, and upon the termination or partial

termination of the Plan.  Also, the

Employer and/or the Trustee shall have the power to liquidate options and

transfer them to one or more segregated accounts, as described in the 




 




95





























 




preceding sentence, if the Employer and/or the Trustee

believes it is prudent to do so in light of the Employer’s and/or Trustee’s

fiduciary duties to the Plan’s Participants. 

The Employer and/or Trustee shall have the authority to take such

actions, without any prior notice to Participants, but shall notify the Plan

Administrator of the Trustee’s action as soon as practicable thereafter.  The Plan Administrator shall notify the

affected Participants and Beneficiaries within 90 days of any such transfer.




 




11.04      Investment Direction – Employer

Securities.  




 




(a)           Definitions.  For purposes of this Article the following

definition applies:




 




(1) Employer

Securities – means shares of common stock issued by the Plan Sponsor, as

identified in the Adoption Agreement.




 




(2) Responsible

Fiduciary – means the individual or party identified in the Adoption Agreement




 




(3) Qualifying Employer Securities - The

investment options available under the Plan include the ability to invest in

“qualifying employer securities”, as defined in Section 407(d)(5) of ERISA,

which specifically includes the common stock of the Employer, Sonic Corp.

(hereinafter referred to as “Employer Securities”).  The Trustee is expressly authorized to invest so much of the

Trust Fund (up to 100%) in Employer Securities as is necessary to invest

contributions in accordance with the directions of the Employer, Participants

and/or Advisory Committee.  Purchases of

Employer Securities shall be on the open market, in a private placement or from

the Employer.




 




Any contribution

by the Employer required or permitted under the Plan may be made in Employer

Securities.  If Employer Securities are

purchased or transferred in-kind from the Employer, the sales price (or value,

if the Employer Securities are contributed in-kind) shall be no greater than

the lesser of, as reported on a national securities exchange registered with

the United States Securities and Exchange Commission including the National

Association of Securities Dealers Automated Quotation System:  (i) the closing price of the Employer

Securities on the trading day immediately preceding the date the Employer

Securities are acquired by the Plan, or (ii) the average of the closing prices

of the Employer Securities for the twenty (20) consecutive trading days

immediately preceding the date as of which the Employer Securities are acquired

by the Plan.  No commissions or other

fees shall be payable with respect to any transaction with the Employer.




 




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(b)                                  Investment Election – Employer

Securities.  




 




(1)   Participant Election - If provided for in

the Adoption Agreement, a Participant may file a written direction with the

Plan Administrator specifying which percentage of his Accounts are to be

invested in Employer Securities.  The

Plan Administrator may limit the Accounts and the percentage alternatives

available to be invested in Employer Securities in a uniform and

non-discriminatory manner.  Any

restrictions on transferring from or into Employer Securities will be specified

in the Adoption Agreement and comply with federal securities law.




 




(2)  Employer Contributions and Forfeitures.  In the event that Employer Contributions are

invested in Employer Securities, as specified in the Adoption Agreement, a

Participant may elect, in accordance with procedures established by the Plan

Administrator, to transfer (and the Adoption Agreement shall specify if such

transfer is irrevocable) a percentage of the amounts in his Employer

Contributions that are invested in Employer Securities pursuant to the

restrictions identified in the Adoption Agreement.




 




(c)                                  Proxy

Voting – Employer Securities.    When the Plan Sponsor files preliminary or

final proxy solicitation materials with the Securities and Exchange Commission,

the Plan Sponsor shall cause a copy of all materials to be simultaneously sent

to the Responsible Fiduciary.  Based on

these materials, the Responsible Fiduciary will ensure that a voting

instruction form is prepared.  At the

time of mailing of notice of each annual or special stockholders’ meeting of

the Plan Sponsor, the Plan Sponsor shall cause a copy of the notice and all

proxy solicitation materials to be sent to each Participant and Beneficiary

with an interest in Employer Securities held in the Trust, together with the

foregoing voting instruction form to be returned to the Responsible Fiduciary

or its designee.  The Responsible

Fiduciary shall provide the Trustee with a copy of any materials provided to

the Participants and Beneficiaries and shall certify to the Trustee that the

materials have been mailed or otherwise sent to the Participants and

Beneficiaries.




 




Each Participant

and Beneficiary with an interest in Employer Securities held in the Trust shall

have the right to direct the manner in which to vote the number of shares of

the Employer Securities reflecting such Participant’s or Beneficiary’s

proportional interest in the Employer Securities held in the Trust (both vested

and unvested).  Directions from a

Participant or Beneficiary to the Responsible Fiduciary concerning the voting

of the Employer Securities shall be communicated in a then acceptable written

format.  These directions shall be held

in confidence by the Responsible Fiduciary and shall not be divulged to the

Plan Sponsor, or any officer or employee thereof, or any other person.  Upon its receipt of the directions, the

Responsible Fiduciary shall direct the Trustee on how to vote the shares of the

Employer Securities reflecting the Participant’s or Beneficiary’s proportional

interest in the Employer Securities held in the Trust as directed by the

Participant.




 




97





























 




Shares of the

Employer Securities reflecting Participant’s or Beneficiary’s proportional

interest in the Employer Securities held in the Trust (both vested and

unvested) for which it has received no directions from Participants or

Beneficiaries shall be voted in the same proportion on each issue as it votes

those shares for which it received voting directions from Participants and

Beneficiaries.  Shares of the Employer

Securities not credited to Participants’ or Beneficiaries’ Accounts shall be

voted in the same proportion on each issue as it votes those shares credited to

Participants’ or Beneficiaries’ Accounts for which it received voting

directions from Participants or Beneficiaries. 

If the Responsible Fiduciary determines that it would be imprudent to

vote shares of Employer Securities in the manner described herein, he or she

will change the manner in which shares are voted so as to comply with his or

her fiduciary responsibilities under the applicable law.




 




(d)                                  Tender

Offers – Employer Securities.    Upon commencement of a tender offer for any

securities held in the Trust that are Employer Securities, the Responsible

Fiduciary shall notify each Participant or Beneficiary of the tender offer and

utilize its best efforts to timely distribute or cause to be distributed to

each Participant or Beneficiary the same information that is distributed to

other stockholders of the Plan Sponsor in connection with the tender offer.  The Plan Sponsor shall provide the

Responsible Fiduciary with a copy of any material provided to the Participants

and Beneficiaries.  The Responsible

Fiduciary shall certify to the Trustee that the materials have been mailed or otherwise

sent to Participants and Beneficiaries.




 




Each Participant

and Beneficiary shall have the right to direct the Responsible Fiduciary to

tender or not to tender some or all of the shares of the Employer Securities

reflecting his proportional interest in the Employer Securities held in the Trust

(both vested and unvested).  Directions

from a Participant or Beneficiary to the Responsible Fiduciary concerning the

tender of the Employer Securities shall be communicated in a then acceptable

written format.  These directions shall

be held in confidence by the Responsible Fiduciary and shall not be divulged to

the Plan Sponsor, or any officer or employee thereof, or any other person

except to the extent that the consequences of such directions are reflected in

reports regularly communicated to any such persons in the ordinary course of

the performance of the Responsible Fiduciary’s services hereunder.  The Responsible Fiduciary shall tender

shares of Employer Securities as directed by the Participant or Beneficiary.  To the extent that Participants and

Beneficiaries fail to affirmatively direct the Responsible Fiduciary or fail to

issue valid directions to the Responsible Fiduciary to tender shares of the

Employer Securities credited to their Accounts, they will be deemed to have

instructed the Responsible Fiduciary not to tender those shares.  Accordingly, the Responsible Fiduciary shall

not tender shares of Employer Securities credited to a Participant’s or

Beneficiary’s Accounts for which it has received no directions or invalid

directions from him.




 




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The Responsible

Fiduciary shall tender that number of shares of the Employer Securities not

credited to the Participants’ and Beneficiaries’ Accounts which is determined

by multiplying the total number of shares of the Employer Securities not

credited to Participants’ and Beneficiaries’ Accounts by a fraction of which

the numerator is the number of shares of the Employer Securities credited to

Participants’ and Beneficiaries’ Accounts for which the Responsible Fiduciary

has received valid directions from Participants and Beneficiaries to tender

(which directions have not been withdrawn as of the date of this determination)

and of which the denominator is the total number of shares of the Employer

Securities credited to the Participants’ and Beneficiaries’ Accounts.




 




A Participant who has directed the Responsible

Fiduciary to tender any or all of the shares of Employer Securities credited to

such Participant’s Accounts may, at any time prior to the tender offer

withdrawal deadline, instruct the Responsible Fiduciary to withdraw, and the

Responsible Fiduciary shall withdraw, such shares from the tender offer prior

to the tender offer withdrawal deadline if such instructions are received

reasonably prior to such deadline to allow the Responsible Fiduciary to

withdraw such shares.  A Participant

shall not be limited by the Responsible Fiduciary as to the number of

instructions to tender or withdraw that the Participant may give to the

Responsible Fiduciary, except to the extent a tender offer contains any such

limitation. Prior to the withdrawal deadline, if any shares of the Employer

Securities not credited to Participants’ or Beneficiaries’ Accounts have been

tendered, the Responsible Fiduciary shall redetermine the number of shares of

the Employer Securities that would be tendered under this Section if the date

of the foregoing withdrawal were the date of determination, and withdraw from

the tender offer the number of shares of the Employer Securities not credited

to Participants’ or Beneficiaries’ Accounts necessary to reduce the amount of

tendered Employer Securities not credited to Participants’ or Beneficiaries’

Accounts to the amount so redetermined. 

A Participant or Beneficiary shall not be limited as to the number of

directions to tender or withdraw that he may give to the Responsible Fiduciary.




 




An instruction by

a Participant to the Responsible Fiduciary to tender the shares of Employer

Securities credited to such Participant’s Accounts shall not be considered a

written election by the participant to withdraw, or have distributed, any or

all of his Accounts which are subject to withdrawal.  The Responsible Fiduciary shall advise the Advisory Committee to

credit, to the Participant’s Accounts from which the tendered shares were

taken, the proceeds received by the Responsible Fiduciary or Trustee, whichever

is applicable, in exchange for the shares of Employer Securities, if any, so

tendered from each such Account.




 




The Responsible

Fiduciary will comply with the provisions of this Section 11.04(d) unless he or

she determines that it is imprudent to do so, in which case he or she will

carry out the provisions of this Section in a manner which complies with his or

her fiduciary responsibilities under applicable law.




 




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Any instruction or other communication by a

Participant to the Responsible Fiduciary concerning any tender offer matter

shall be held in confidence by the Responsible Fiduciary and shall not be divulged

to the Employer or to any officer or employee thereof nor to any other person,

except as required by law.




 




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ARTICLE

XII. PARTICIPANT LOANS.




 




12.01.     Availability of Loans.  The Plan may permit a Participant to obtain a

loan from the Plan. 

The Plan’s written loan policy shall set forth all loan rules and

restrictions.




 




12.02.     Loan Policy.  The

Loan Policy shall be a written document setting forth the specific provisions

for Participant loans, and is herein incorporated as part of the Plan by

reference. A signed copy of the Loan Policy shall be kept on file by the Plan

Administrator, and also shall be set forth in the Summary Plan Description for

the Plan. The Loan Policy shall include (1) the identity of the person or

position authorized to administer the Participant Loan program; (2) a procedure

for applying for loans; (3) the basis on which loans shall be approved or

denied; (4) limitations (if any) on the types and amounts of loans offered; (5)

the procedure under the program for determining a reasonable rate of interest;

(6) the types of collateral which may secure a Participant loan; (7) the events

constituting default and the steps that shall be taken to preserve Plan assets

in the event of such default; and (8) all other information sufficient to

apprise all possible borrowers of the scope and procedures of the loan

program.  Loans shall be available to

Plan Participants on a nondiscriminatory basis without regard to any

individual’s race, color, religion, sex, age or national origin.




 




12.03.     Loan Documents. 

The originals of all promissory notes and other forms

requested by the Trustee in respect of any loan shall be retained by the

Trustee (or an authorized representative of the Trustee), or the Plan

Administrator (or an authorized representative of the Plan Administrator) as

long as the loan is outstanding.




 




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ARTICLE XIII. ADOPTION, TERMINATION AND RELATED MATTERS.




 




13.01.     Adoption Agreement. 

The Employer shall adopt this Plan by its Adoption Agreement complete in

every respect and agreeing to be bound as an Employer by all the terms of the

Plan with respect to its Eligible Employees. The Adoption Agreement shall

specify the Effective Date of such adoption of the Plan and shall become, to

such Employer and its Employees, a part of this Plan. The Employer shall be

solely responsible for establishing and maintaining the tax-qualified status of

this Plan.




 




13.02.     Right to Amend Reserved.




 




(a)           Right

to Amend. 

The Employer, by action of its corporate officers, general manager (if

applicable), managing partner (if applicable), or any individual appointed

pursuant to Section 10.01 (regarding the Plan Administrator), shall have the

right at any time and from time to time to amend the Plan, subject to the

limitations of this Section 13.02(a). 

However, any amendment which affects the rights, duties or

responsibilities of the Trustee or Plan Administrator, may only be made with

the Trustee’s and Plan Administrator’s written consent.




Notwithstanding

the immediately preceding paragraph, an amendment shall require the approval or

ratification of the Plan Sponsor’s Board of Directors if the effect of such

amendment is to:




 




(1)  terminate the Plan;




(2)  cease benefit accruals or contributions;




(3)  significantly change the cost of funding or

operating the Plan;




(4)  restate the Plan;




(5)  effect a permissible change which materially

affects Participants’ rights;




(6)  otherwise significantly alter the Plan Sponsor’s

rights, liabilities and burdens with respect to the Plan.




 




(b)           No Protected Benefit may be

eliminated. 

No amendment to the Plan shall eliminate a Protected Benefit, except to

the extent permitted under Regulation section 1.411(d)(6).




 




13.03.     Limitations on Employer’s Right to

Amend. No such amendment shall, without

a Participant’s consent (except as otherwise specifically permitted under this

Plan), deprive, limit, lessen or restrict any vested right or interest to which

any Participant is already entitled under the Plan. Furthermore, no such

amendment may decrease the Vested Balance of a Participant, nor may it

eliminate or reduce an Early Retirement benefit, nor may it eliminate a

Protected Benefit.




 




13.04.     Right to Terminate. 

The Employer reserves the right to terminate the Plan in whole or in

part with respect to its Employees at any time by giving written notice to the

Trustee. Any such notice shall designate the Effective Date of such

termination. Upon the termination or partial termination of the Plan by an

Employer with respect to its Employees by an Employer, the affected

Participants with respect to whom the Plan has wholly or partially terminated,

shall be 100% vested in their Accounts. 

After payment of all expenses, and the proportionate adjustment of

Participants’ Accounts to reflect such expenses, net income or loss of the

Trust Fund and allocation to date of 




 




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termination, and

requirements of section 401(k)(2)(B) of the Code, benefits shall be distributed

to each Participant, as soon as administratively practicable, as provided

herein. The Employer may notify the Internal Revenue Service in writing of such

termination with respect to its Employees.




 




Upon such termination,

the Employer may distribute all amounts held under the Plan except, however,

that amounts attributable to salary deferrals shall not be distributed if the

affected Participants shall be employed by a successor employer maintaining a

qualified plan with a salary deferral arrangement.




 




13.05.     Suspension of Contributions.  In the event of a complete discontinuance of

substantial Employer contributions to this Plan, the vested percentage of each

Participant in his Employer Account shall be 100%.




 




13.06.     Merger, Partial

Merger, Consolidation, and Transfer of Assets.  This Plan and Trust may be merged, partially

merged, or consolidated with, or assets and/or liabilities may be transferred

to, or from, any other plan and trust only if the benefits which would be

received by a Participant of this Plan, in the event of a termination of the

Plan immediately after such transfer, merger or consolidation, are at least

equal to the benefits the Participant would have received if the Plan had

terminated immediately before such transfer, merger or consolidation, and such

transfer, merger or consolidation does not otherwise result in the elimination

or reduction of any Protected Benefit, nor cause any Participant to vest less

rapidly in any Employer Account than would have otherwise been the case prior

to said transfer, merger, or consolidation.




 




Unless specifically

prohibited in the Adoption Agreement, the Plan shall accept assets transferred

from a Plan qualified under Code section 401(a).  Upon the transfer of any assets or liabilities in connection with

the merger, partial merger, or consolidation of another plan qualified under

Code section 401(a) with this Plan, the Plan Administrator may direct that the

total of Employee transfers made in cash after a Valuation Date be segregated into

a separate account for each Participant in a federally insured savings account,

certificate of deposit in a bank or savings and loan association, money market

fund, or other short-term debt security acceptable to the Trustee until such

time as the allocations pursuant to this Plan have been made, at which time

they may remain segregated or be invested as part of the general Trust Fund, to

be determined by the Plan Administrator.




 




Any amounts transferred

to this Plan from another plan, as described in the preceding paragraph, that

are attributable to contributions from the Employer that maintained such plan,

shall be fully vested upon such merger, unless otherwise provided in the

Adoption Agreement or in an amendment to the Plan addressing such transfer, merger,

or consolidation.




 




13.07.     Partial Termination.  Upon a determination by the Plan Administrator in its sole and

absolute discretion, that a partial termination of the Plan has occurred with

respect to a group of Participants, the Trustee shall, in accordance with the

directions of the Plan Administrator, allocate and segregate for the benefit of

the affected Employees then or theretofore employed by the Employer with

respect to which the Plan is being terminated the proportionate interest of

such Participants in the Trust Fund. The funds so allocated and segregated

shall be used by the Trustee to pay benefits to or on behalf of Participants in

accordance with Section 13.08.




 




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13.08.     Liquidation of the Trust Fund.  Upon termination or partial termination of the Plan, the Accounts

of all Participants affected thereby shall become fully vested, and the Plan

Administrator shall direct the Trustee to implement either subsection (a) or

(b) below.




 




(a)           Continuing

the Trust. 

Under this option, the Trustee shall continue to administer the Trust

Fund and pay Account balances in accordance with Section 7.07, to Participants

affected by the termination upon their termination of employment or to their

Beneficiaries upon such a Participant’s death, until the Trust Fund has been

liquidated.




 




(b)           Liquidating

the Trust. 

Under this option, the Trustee shall, as soon as administratively

practicable, distribute the assets remaining in the Trust Fund, after payment

of any expenses properly chargeable thereto, to Participants, Former

Participants and Beneficiaries in proportion to their respective Account

balances. In case the Plan Administrator directs liquidation of the Trust Fund

pursuant to paragraph (a) of this Section, the expenses of administering the

Plan and Trust, if not paid by the Employer, shall be paid from the Trust

Fund.  A liquidation of the Trust Fund

may be delayed in the event the Employer has made an application with the

Internal Revenue Service for a determination of the Plan’s qualified status

upon termination and such liquidation is pending a favorable determination.




 




13.09.     Manner of Distribution.  To the extent that no discrimination in value results, any

distribution after termination of the Plan may be made, in whole or in part, in

cash, in securities or other assets in kind, or in non-transferable annuity

contracts, as the Plan Administrator shall determine. All non-cash

distributions shall be valued at fair market value as of the date of distribution.

Distributions due to the termination or partial termination of the Plan shall

be made in accordance with the modes of distribution provided for in the Plan.

Except, however, that in the event of the termination of the Plan and

liquidation of the Trust, distributions shall only be made in a lump sum unless

the Adoption Agreement provides for the purchase of annuities.




 




13.10.     No Reversion to Employers.  Except as provided herein, no portion of the

principal or the income of the Trust Fund shall revert to or be recoverable by

the Employer (or any Participating Employer) or ever be used for or diverted to

any purpose other than for the exclusive benefit of the Participants,

Beneficiaries or alternate payees, provided, however, that:




 




(a)           Deductibility.  All Employer contributions are conditioned

upon the deductibility of the contributions under section 404 of the Code,

then, to the extent the deduction is disallowed, the Plan shall, upon written

request of the Employer (or Participating Employer), return such amounts as may

be permitted by law to such Employer (or Participating Employer) as

appropriate, within one year after the date the deduction is disallowed; and




 




(b)           Mistake

of Fact. 

If a contribution or any portion thereof is made by the Employer (or Participating

Employer) by a mistake of fact, the Plan shall, upon written request of the

Employer, return such amounts as may be permitted by law to the Employer (or

Participating Employer), within one year after the date of payment to the

Trust; and




 




(c)           Initial Qualification.  All

Employer contributions are conditioned upon the initial qualification of the

Plan and Trust under Code sections 401 and 501.  The contributions of 




 




104





























 




the Employer (or of a Participating Employer) to the

Trust for all Plans Years, with the gains and losses thereon, shall be returned

by the Plan to the Employer (or such Participating Employer), within one year

in the event that the Commissioner of the Internal Revenue Service either

issues an adverse determination on the initial qualification of the Plan and

Trust or fails to rule that the Plan and Trust were as of such date qualified

and tax-exempt (within the meaning of Code sections 401 and 501); and




 




(d)           Other Allowable Provisions.  Assets may be returned to the Employer (or

Participating Employer) to the extent such return is permitted by ERISA, the

Code, the Income Tax Regulations, Department of Labor Regulations, or any other

authorities or guidance issued by the United States Department of Treasury, the

Internal Revenue Service, or the Department of Labor.




 




13.11.     Determination of Returned Amount.  Provided, however, that the return of any

contributions to the Employer (or Participating Employer) pursuant to Section

13.10 (a), (b) or (d), shall satisfy the following requirements:




 




(a)           the amount returned shall not exceed

the amount which would have been contributed had there been no error in

determining the deduction or mistake of fact, as the case may be;




 




(b)           the amount returned shall not include

the earnings attributable to such contributions;




 




(c)           the amount returned shall be reduced

by any losses attributable to such contributions;




 




(d)           the individual Account of any

Participant (or Beneficiary or alternate payee) shall not be reduced, by the

return of such contributions, to less than such Account would have been had the

returned contributions never been made.




 




105





























 




ARTICLE XIV. PARTICIPATING EMPLOYERS.




 




14.01.     Adoption By Other Employers.  Notwithstanding anything herein to the

contrary, with the consent of the Employer and Trustee, any other corporation

or entity, whether an Affiliate or subsidiary or not, may adopt this Plan and

all of the provisions hereof, and participate herein and be known as a

Participating Employer, by delivering to the Employer and Trustee a properly

executed document evidencing said intent and will of such Participating

Employer.




 




14.02.     Requirements of Participating Employers.




 




(a)           Trustee.  Unless otherwise specifically provided in

the Adoption Agreement, each such Participating Employer shall be required to

use the same Trustee as provided in this Plan, or as provided in such separate

Trust Agreement as shall be specified in the Adoption Agreement.




 




(b)           Trust

Funds.  The

Trustee may, but shall not be required to, commingle, hold and invest as one

Trust Fund all contributions made by Participating Employers, as well as all

increments thereof.  However, the assets

of the Plan shall, on an ongoing basis, be available to pay benefits to all

Participants and Beneficiaries under the Plan without regard to the Employer or

Participating Employer who contributed such assets.




 




(c)           Transfers.  The transfer of any Participant from or to

the Employer or a Participating Employer, whether an Employee of the Employer

or a Participating Employer, shall not affect such Participant’s rights under

the Plan, and all amounts credited to such Participant’s Account as well as his

accumulated service time with the transferor or predecessor, and his length of

participation in the Plan, shall continue to his credit.




 




(d)           Participant

rules.  All

rights and values forfeited by termination of employment shall inure, in

accordance with Section 4.06(f), only to the benefit of the Participants of the

Employer or Participating Employer by which the forfeiting Participant was

employed, except if the Forfeiture is for an Employee whose Employer is an

Affiliated Employer (as defined in Section 1.19), then said Forfeiture shall

inure to the benefit of the Participants of those employers who are Affiliates,

unless otherwise provided in the Adoption Agreement.  Should an Employee of one (“First”) Employer be transferred to an

associated (“Second”) Employer which is an Affiliate, such transfer shall not

cause his Account balance (generated while an Employee of the “First” Employer)

in any manner, or by any amount to be forfeited.  Such Employee’s Participant Account balance for all purposes of

the Plan, including length of Service, shall be considered as though he had

always been employed by the “Second” Employer, and as such had received

contributions, Forfeitures, earnings or losses, and appreciation or

depreciation in value of assets totaling the amount so transferred.




 




(e)           Expenses.  Any expenses of the Trust which are to be

paid by the Employer or borne by the Trust Fund shall be paid by each

Participating Employer in the same proportion that the total amount standing to

the credit of all Participants employed by such Employer bears to the total

standing to the credit of all Participants.




 




106





























 




14.03.     Designation of Agent.  Each Participating Employer shall be deemed to be a part of this

Plan; provided, however, that with respect to all of its relations with the

Trustee and the Plan Administrator for the purpose of this Plan, each

Participating Employer shall be deemed to have designated irrevocably the

Employer as its agent.  Unless the

context of the Plan clearly indicates the contrary, the word “Employer” shall

be deemed to include each Participating Employer as related to its adoption of

the Plan.




 




14.04.     Employee Transfers.  It is anticipated that an Employee may be transferred between

Participating Employers, and in the event of any such transfer, the Employee

involved shall carry with him his accumulated Service and eligibility.  No such transfer shall effect a termination

of employment hereunder, and the Participating Employer to which the Employee

is transferred shall thereupon become obligated hereunder with respect to such

Employee in the same manner as was the Participating Employer from whom the

Employee was transferred.




 




14.05.     Participating Employer’s Contribution.




 




(a)           In

general.  A

Participating Employer’s Contributions shall be applied according to one of the

following methods as specified in the Adoption Agreement:




 




(1) All contributions made by a Participating

Employer and the allocation of related Forfeitures, as provided for in this

Plan, shall be determined separately by each Participating Employer, and shall

be paid to and held by the Trustee for the exclusive benefit of the Employees

of such Participating Employer and the Beneficiaries of such Employees, subject

to all the terms and conditions of this Plan. 

On the basis of the information furnished by the Plan Administrator, the

Trustee shall keep separate books and records concerning the affairs of each

Participating Employer hereunder and as to the Accounts and credits of the

Employees of each Participating Employer.




 




(2) Any contribution or Forfeiture subject to

allocation during each Plan Year shall be allocated among all Participants of

all Participating Employers in accordance with the provisions of this

Plan.  On the basis of the information

furnished by the Plan Administrator, the Trustee shall keep separate books and

records concerning the affairs of each Participating Employer hereunder and as

to the Accounts and credits of the Employees of each Participating Employer.




 




(b)           Contracts.  The

Trustee may, but need not, register contracts so as to evidence that a

particular Participating Employer is the interested Employer hereunder, but in

the event of an Employee transfer from one Participating Employer to another,

the employing Employer shall immediately notify the Trustee thereof.




 




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14.06.     Amendment. 

Amendment of this Plan shall only be done by the Employer, and with the

consent of the Trustee, where such consent is necessary in accordance with the

terms of the Plan.  Written action by

each and every Participating Employer, and with the consent of the Trustee

where such consent is necessary in accordance with the terms of the Plan or the

Adoption Agreement, shall only be required if so provided in the Adoption

Agreement.




 




14.07.     Discontinuance of Participation.  Any Participating Employer shall be permitted to discontinue or

revoke its participation in the Plan. 

At the time of any such discontinuance or revocation, satisfactory evidence

thereof and of any applicable conditions imposed shall be delivered to the

Trustee.  The Trustee shall thereafter

transfer, deliver and assign Contracts and other Trust Fund assets allocable to

the Participants of such Participating Employer to such new Trustee as shall

have been designated by such Participating Employer, in the event that it has

established a separate plan qualified under Code section 401(a) for its

Employees; provided, however, that no such transfer shall be made if the result

is the elimination or reduction of any Protected Benefit.  If no successor is designated, the Trustee

shall retain such assets for the Employees of said Participating Employer

pursuant to the provisions of Article XII hereof, or the provisions of such

separate Trust Agreement as shall be in effect (as provided in the Adoption

Agreement).  In no such event shall any

part of the corpus or income of the Trust as it relates to such Participating

Employer be used for or delivered for purposes other than the exclusive benefit

of the Employees (and their Beneficiaries) of such Participating Employer.




 




14.08.     Plan Administrator’s Authority.  The Plan Administrator shall have authority

to make any and all necessary rules or regulations, binding upon all

Participating Employers and all Participants, to effectuate the purpose of this

Article.




 




14.09.     Participating Employer’s Contribution for Affiliate.  If any Participating Employer is prevented

in whole or in part from making a contribution to the Trust Fund which it would

otherwise have made under the Plan by reason of having no current or

accumulated earnings or profits, or because such earnings or profits are less

than the contribution which it would otherwise have made, then, pursuant to

Code section 404(a)(3)(B), so much of the contribution which such Participating

Employer was so prevented from making may be made, for the benefit of the

participating Employees of such Participating Employer, by the other

Participating Employers who are members of the same affiliated group within the

meaning of Code section 1504, to the extent of their current or accumulated

earnings or profits.  However, any such

contribution by each such other Participating Employer shall be limited to the

proportion of its total current and accumulated earnings or profits remaining

after adjustment for its contribution to the Plan made without regard to this

paragraph which the total prevented contribution bears to the total current and

accumulated earnings or profits of all the Participating Employers remaining

after adjustment for all contributions made to the Plan without regard to this

paragraph.  A Participating Employer, on

behalf of whose Employees a contribution is made under this paragraph, shall

not reimburse the contributing Participating Employers.




 




108





























 




ARTICLE XV. MISCELLANEOUS PROVISIONS.




 




15.01.     Named Fiduciaries and Allocation of Responsibility.  The Named Fiduciaries of this Plan are (1) the

Employer and (2) the Plan Administrator. 

The Named Fiduciaries shall have only those powers, duties,

responsibilities, and obligations as are specifically given them under the

Plan.  In general, the Employer shall

have sole and absolute discretion for making the contributions provided for

under Article III, and shall have sole and absolute discretion to appoint and

remove the Trustee and the Plan Administrator; to formulate the Plan’s “funding

policy and method;” and to amend or terminate, in whole or in part, the

Plan.  The Plan Administrator shall have

sole and absolute discretion for the administration of the Plan, which

responsibility includes the sole and absolute discretion to interpret the Plan

and to determine eligibility for benefits, including the amount of

benefits.   The Trustee shall have sole

and absolute discretion of management of the assets held under the Trust,

except those assets, the management of which have been assigned to an

Investment Manager, who shall have sole and absolute discretion for the

management of the assets assigned to it, all as specifically provided herein.  Each Named Fiduciary warrants that any

directions given, information furnished, or action taken by it shall be in

accordance with the provisions herein, authorizing or providing for such

direction, information or action. 

Furthermore, each Named Fiduciary may rely upon any such direction,

information or action of another Named Fiduciary as being proper under the

provisions of the Plan, and is not required to inquire into the propriety of

any such direction, information or action. 

It is intended under the provisions of the Plan that each Named

Fiduciary shall be responsible for the proper exercise of its own powers,

duties, responsibilities and obligations under the Plan.  No Named Fiduciary shall guarantee the Trust

Fund in any manner against investment loss or depreciation in asset value.  Any person or group may serve in more than

one Fiduciary capacity.  In the

furtherance of their responsibilities hereunder, the Named Fiduciaries shall be

empowered with the sole discretion to resolve ambiguities, inconsistencies and

omissions, which findings shall be binding, final and conclusive.




 




15.02.     Nonalienability

of Benefits. The

rights of Participants and Beneficiaries to receive any benefit payment under

this Plan may not be anticipated, assigned (either at law or in equity),

alienated or subject to attachment, garnishment, levy, execution or other legal

or equitable process, except to the extent otherwise provided for herein with

respect to:




 




(a)           Qualified

Domestic Relations Orders;




 




(b)           Loans to

Participants;




 




(c)           An offset of a Participant’s benefits

under this Plan that is the result of a judgment of conviction for a crime

involving the Plan, or under a civil judgment (including a consent order or

decree) for a violation of fiduciary responsibilities under ERISA, or under a

settlement agreement between the Participant and the Secretary of Labor for a

violation (or alleged violation) of fiduciary responsibilities (including

fiduciary duties) that orders or requires the Participant to pay the Plan

issued or entered into on or after August 5, 1997. However, the judgment,

order, decree, or settlement agreement must specifically provide for the offset

of all or part of the amount ordered or required to be paid to the Plan against

the Participant’s benefits under this Plan. If Article VIII applies to the

Plan, the Participant’s spouse, if any, must consent in writing to the offset

and the Spouse’s consent must be 




 




109





























 




witnessed by a notary public or a Plan representative,

unless the Plan has a Qualified Election on file, or the judgment, order,

decree, or settlement requires the Participant’s spouse to pay the Plan, or

under the judgment, order, decree, or settlement the Participant’s spouse

retains the right to their benefits under Article VIII, determined pursuant to

the requirements under Code section 401(a)(13)(D).




 




This provision

shall not preclude the enforcement of a federal tax levy made pursuant to Code

section 6331, or the collection by the United States on a judgment resulting

from an unpaid tax assessment.




 




15.03.     Rights to Trust Assets.  No Employee or Beneficiary shall have any right to, or interest

in, any assets of the Trust Fund except as provided under this Plan, and then

only to the extent of the benefits payable to such Employee or Beneficiary out

of the Trust Fund.




 




15.04.     No Diversion of Trust Fund. 

No part of the Trust Fund shall be used for, or diverted to,

purposes other than for the exclusive benefit of the Participants and their

Beneficiaries.




 




15.05.     Name and Address Change.  Each Participant and each Beneficiary of a deceased Participant

shall at all times be responsible for notifying the Plan Administrator of any

change in his name or address. If any check payment of a benefit hereunder (which

was mailed to the last address of the payee as shown on the records of the Plan

Administrator) is returned unclaimed, further payments shall be discontinued

until the Plan Administrator directs otherwise.




 




15.06.     Plan Not an Employment Contract.  The adoption and continuance of this Plan by

the Employer (or Participating Employer) shall not be deemed to constitute a

contract of employment between the Employer (or Participating Employer) and any

Participant, Employee or other person; nor shall it be deemed to be

consideration for, inducement to, or a condition of employment of any person.




 




15.07.     Controlling Law. 

All legal questions pertaining to the Plan, all constructions and all

regulations shall be determined in accordance with the laws of the State of the

Employer unless otherwise preempted by ERISA or other federal law.




 




15.08.     Severability.  If

any provision of this Plan shall be held invalid or illegal for any reason,

such illegality or invalidity shall not affect the remaining provisions, but each

provision shall be fully severable, and the Plan shall be construed and

enforced as if such illegal or invalid provision had never been inserted.




 




15.09.     Legal Action. 

In the event any claim, suit, or proceeding is brought regarding the

Trust and/or Plan established hereunder to which the Trustee or the Plan

Administrator may be a party, and such claim, suit, or proceeding is resolved

in favor of the Trustee or Plan Administrator, they shall be entitled to be

reimbursed from the Trust Fund for any and all costs, attorney’s fees, and

other expenses pertaining thereto incurred by them for which they shall have

become liable.




 




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15.10.     Employer’s and Trustee’s Protective Clause.  Neither the Employer (nor any Participating

Employer) nor the Trustee, nor their successors, shall be responsible for the

validity of any Contract issued hereunder or for the failure on the part of the

insurer to make payments provided for by any such Contract, or for the action or

omission by any person which may delay payment or render a Contract null and

void or unenforceable in whole or in part.




 




15.11.     Insurer’s Protective Clause.  Any insurer who shall issue a Contract

hereunder shall not have any responsibility for the validity of this Plan or

for the tax or legal aspects of this Plan. 

The insurer shall be protected and held harmless in acting in accordance

with any written direction of the Trustee, and shall have no duty to see to the

application of any funds paid to the Trustee, nor be required to question any

actions directed by the Trustee. 

Regardless of any provision of this Plan, the insurer shall not be

required to take or permit any action or allow any benefit or privilege contrary

to the terms of any Contract which it issues hereunder, or the rules of the

insurer.




 




15.12.     Receipt and Release for Payments.  Any payment to any Participant, his legal

representative, Beneficiary, any alternate payee, or to the estate of a

Participant, Beneficiary or alternate payee, 

or to any guardian or committee appointed for such Participant,

Beneficiary, alternate payee, or estate in accordance with the provisions of

the Plan, shall, to the extent thereof, be in full satisfaction of all claims

hereunder against the Trustee and the Employer (or Participating Employer),

either of whom may require such Participant, legal representative, Beneficiary,

alternate payee, guardian, or committee, or administrator or executor or such

estate, as a condition precedent to such payment, to execute a receipt and

release thereof in such form as shall be determined by the Trustee or Employer.




 




15.13.     Action by the Employer.  Whenever the Employer under the terms of the Plan is permitted or

required to do or perform any act or matter or thing, it shall be done and

performed by a person duly authorized by its legally constituted authority.




 




15.14.     Headings for Convenience.  Headings of Articles and Sections

are included solely for convenience or reference, and if there is any conflict

between such headings and the text of this Plan, the text shall control.




 




15.15.     Words Used.  Wherever

appropriate, the masculine gender shall be construed to include the feminine

gender and neuter, and the feminine gender shall be construed to include the

masculine gender and neuter. Words used in the singular shall be construed to

include plurals, and the plural to include the singular.




 




15.16.     Reference to Code or ERISA Sections. 

Reference to the provision of any particular section of the

Code or ERISA shall be deemed reference to any section of the Code or ERISA

which may hereafter contain the same or similar provision.




 




15.17.     Counterparts.  This Agreement may be executed in any number of counterparts, each

of which shall be deemed to be an original, but all counterparts shall,

together, constitute only one Plan document.




 




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APPENDIX

A




TOP HEAVY PLAN




 




This

Appendix shall apply for purposes of determining whether the Plan is a

Top-Heavy plan under section 416(g) of the Code for Plan Years commencing prior

to January 1, 2002, and whether the Plan satisfies the minimum benefits

requirements of section 416(c) of the Code for such years.




 




9.01.       Definitions. 

If the Plan is or becomes Top-Heavy in any Plan Year

beginning prior to December 31, 2001, the provisions of this Appendix shall

supersede any conflicting provisions in the Plan or Adoption Agreement.




 




(a)           Determination

Date means, with respect to any Plan Year, the

last day of the preceding Plan Year, or, in the case of the first Plan Year,

the last day of such Plan Year.




 




(b)           Permissive Aggregation Group

means that group of plans in a Required Aggregation Group, together with any

plan or plans of the Employer not required to be included in the Required

Aggregation Group, provided the resulting group, taken as a whole, would

continue to satisfy the provisions of Code sections 401(a)(4) and 410.




 




(c)           Present Value of Accrued Benefits

means the present discounted value of all Participants’ accrued benefits under

all defined benefit plans maintained by the Employer, discounted using the

interest and mortality rates specified in the Adoption Agreement, if

applicable.




 




(d)           Required Aggregation Group

means that group of plans composed of each:




 




(1) 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 is terminated), and




 




(2) any other qualified plan of the Employer which

enables any plan in which a Key Employee participates to meet the requirements

of Code section 401(a)(4) or 410.




 




(e)           Top-Heavy

Plan Year  means a Plan Year commencing after

December 31, 1983, in which the Plan is a Top-Heavy or a Super-Top-Heavy Plan.




 




(f)            Top-Heavy

Ratio means the following:




 




(1) If the Employer maintains one or more defined

contribution plans (including any Simplified Employee Pension Plan) and the

Employer has not maintained any defined benefit plan which during the five-year

(5) period ending on the Determination Date has or has had accrued benefits,

the Top-Heavy Ratio for this Plan alone or for the Required Aggregation Group

or the Permissive Aggregation Group (whichever is applicable) is a fraction,

the numerator of which is the sum of the Total Balances of all Key Employees as

of the Determination Date (including any part of any Account balance

distributed in the five-year (5) period ending on the Determination Date, but

excluding any Account balance due to unrelated Rollovers and/or Plan-to-Plan

Transfers), and the denominator of which is the sum of all Total Balances

(including any part of any Account 




 




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balance

distributed in the five-year (5) period ending on the Determination Date,

provided that with respect to death benefits, the amount used for Top-Heavy

testing is the amount determined as above immediately prior to a Participant’s

death, including the cash value of life insurance policies, if any), both

computed in accordance with Code section 416 and the regulations promulgated

thereunder. Both the numerator and denominator of the Top-Heavy Ratio are

adjusted to reflect any contribution which is due but unpaid as of the

Determination Date, but which is required to be taken into account on that date

under Code section 416 or the regulations promulgated thereunder.




 




(2) If the Employer maintains one or more defined

contribution plans (including any Simplified Employee Pension Plan) and the

Employer maintains or has maintained one or more defined benefit plans which

during the five-year (5) period ending on the Determination Date has or has had

any accrued benefits, the Top-Heavy Ratio for any Required Aggregation Group or

Permissive Aggregation Group (whichever is applicable) is a fraction, the

numerator of which is the sum of Total Account Balances under the aggregated

defined contribution plan or plans for all Key Employees determined in

accordance with subsection (1) above (including any part of any Account balance

distributed in the five-year (5) period ending on the Determination Date,

but excluding any Account balance due to unrelated Rollovers and/or

Plan-to-Plan Transfers), and the Present Value of Accrued Benefits under the

aggregated defined benefit plan or plans for all Key Employees as of the

Determination Date, and the denominator of which is the sum of the Total

Balances under the aggregated defined contribution plans for all Participants

(including any part of any Account Balance distributed in the five-year (5)

period ending on the Determination Date, but excluding any Account Balance due

to unrelated Rollovers and/or Plan-to-Plan Transfers), and the Present Value of

Accrued Benefits under the defined benefit plan or plans for all Participants

as of the Determination Date, all determined in accordance with Code section

416 and the regulations promulgated thereunder. The accrued benefits under a

defined benefit plan in both the numerator and denominator of the Top-Heavy

Ratio shall include any distribution of an accrued benefit made in the

five-year (5) period ending on the Determination Date.




 




(3) For purposes of subsections (1) and (2) above,

the values used for determining the Top-Heavy Ratio shall be determined as of

the most recent Valuation Date that falls within or ends with the 12-month

period ending on the Determination Date except as provided in Code section 416

and the regulations promulgated thereunder for the first and second years of a

defined benefit plan. The Account balances and accrued benefits of a

Participant (A) who is not a Key Employee, but who was a Key Employee in a

prior year, or (B) who has not been credited with at least one (1) Hour of

Service with any Employer maintaining this Plan at any time during the

five-year (5) 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 shall be made in accordance

with Code section 416 and the regulations 




 




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promulgated

thereunder. Any amount attributable to accumulated deductible Employee

contributions (as defined in Code section 72(o)(5)(A)) shall be disregarded for

purposes of computing the Top-Heavy Ratio. When aggregating plans, the value of

Account balances and accrued benefits shall be calculated with reference to the

Determination Dates that fall within the same calendar year.




 




The accrued

benefit of a Participant other than a Key Employee shall be determined under

(A) the method, if any, that uniformly applies for accrual purposes under all

defined benefit plans maintained by the Employer, or (B) if there is no such

method, as if such benefit accrued not more rapidly than the slowest accrual

rate permitted under the fractional rule of Code section 411(b)(1)(C).




 




9.02.       Determination of Top-Heavy and Super Top-Heavy Status.




 




(a)           Top-Heavy

Status.  This

Plan shall be a Top-Heavy Plan for any Plan Year commencing after December 31,

1983, if any of the following conditions exists:




 




(1) this Plan is not part of any Required

Aggregation Group or Permissive Aggregation Group of plans and the Top-Heavy

Ratio for this Plan exceeds 60%; or




 




(2) this Plan is a part of a Required Aggregation

Group of Plans but not part of a Permissive Aggregation Group, and the

Top-Heavy Ratio for the Required Aggregation Group of plans exceeds 60%; or




 




(3) 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 the Permissive Aggregation Group exceeds 60%.




 




(b)           Super

Top-Heavy Status.  This Plan shall be a Super-Top-Heavy Plan

for any Plan Year commencing after December 31, 1983, if, after first

substituting the term 90% for the term 60% each time it appears in Section 9.02

(a), the Plan would meet the test for being a Top-Heavy Plan specified therein.




 




9.03.       Special Vesting Requirements.  For any Top-Heavy Plan Year, the vesting

schedule shall provide for 100% vesting after three (3) Years of Service unless

the vesting schedule in the Adoption Agreement provides for vesting on a schedule

which is at least as rapid as required for Top-Heavy plans under Code section

416(b). The minimum vesting schedule applies to all benefits within the meaning

of Code section 411(a)(7) except those attributable to Participant

contributions (which shall be 100% vested at all times), including benefits

accrued before the effective date of Code section 416 and benefits accrued

before the Plan became a Top-Heavy Plan. Further, no reduction in vested

benefits may occur in the event the Plan’s status as a Top-Heavy Plan changes

for any Plan Year. However, this Section does not apply to the Employer Account

Balance of any Employee who does not have one Hour of Service after the Plan

has initially become a Top-Heavy Plan; such Employee’s vested percentage in his

Employer Account shall be determined without regard to this Section.




 




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9.04.       Special Minimum Allocation

Requirements.




 




(a)           In

general.  For any

Top-Heavy Plan Year, except as otherwise provided in subsection (b) below, for

purposes of the minimum Top-Heavy allocation, the Employer Contributions and

Forfeitures allocated on behalf of any Participant who is not a Key Employee

shall not be less than the lesser of three percent (3%) of such Participant’s

414(q) Compensation or (in the case where the Employer has no defined benefit

plan which designates this Plan to satisfy Code section 401) the largest

percentage of Employer Contributions and Forfeitures, as a percentage of the

lesser of a Key Employee’s 414(q) Compensation, or Annual Limitation (adjusted

pursuant to Code section 401(a)(17)), allocated on behalf of any Key Employee

for such year.




 




The minimum

allocation shall be determined without regard to any Social Security

contributions. The minimum allocation required (to the extent required to be

nonforfeitable under Section 9.03 and Code section 416(b)) shall not be

forfeited under Code section 411(a)(3)(B) or 411(a)(3)(D). This minimum

allocation shall be made even though, under other Plan provisions, a Participant

would not otherwise be entitled to receive an allocation, or would have

received a lesser allocation for the year because of:




 




(1) a Participant’s failure to complete a

specified number of Hours of Service (if any, as set forth in the Adoption Agreement);

or




 




(2) a Participant’s failure to make or authorize

any Salary Deferral Contributions; or




 




(3) Compensation less than a stated amount.




 




A minimum

Top-Heavy allocation, made on behalf of a Non-Key Employee shall be allocated

to a Non-Key Participant’s Salary Deferral Account for each Plan Year in which

the Plan is a Top-Heavy Plan. Salary Deferral Contributions, Matching

Contributions and Employer Contributions (and any other Employer Contributions)

to the Plan shall be combined to determine the largest contribution made or

required to be made for Key Employees.




 




The preceding

provisions of this Section 9.04 shall not apply to this Plan if, pursuant to

the Adoption Agreement, this Plan enables a qualified defined benefit plan in

the Required Aggregation Group of the Employer to meet the requirements of Code

section 401(a)(4) or Code section 410.




 




(b)           Special

Rules.




 




(5) In determining

a Non-Key Employee’s required minimum allocation, such a Non-Key Employee’s

Salary Deferral Contributions for the Plan Year shall not be taken into

account.




 




115





























 




(2) The provisions in subsection (a) above shall

not apply to any Participant who was not employed by the Employer on the last

day of the Plan Year (unless otherwise specified in the Adoption Agreement).




 




(3) The provisions of subsection (a) shall not

apply to any Participant to the extent such Participant is covered under any

other qualified plan or plans of the Employer and the Employer has provided in

the Adoption Agreement that the minimum allocation or benefit requirement

applicable to Top-Heavy Plans shall be met in such other plan or plans.




 




9.05.       Special Multiple Plan Rules.




 




(a)           General

rule.  For

any Top-Heavy Plan Year, the term “1.0” shall be substituted for the term

“1.25” each time such term appears in the definition of defined benefit plan

fraction and the definition of the defined contribution plan fraction as

provided in Section 5.02.




 




(b)           Employees

participating in only the defined benefit plan.  Employees participating in only the

defined benefit plan shall receive the defined benefit minimum contribution

required by Code section 416. Employees participating in only this Plan shall

receive the minimum allocation required under Section 9.04.




 




(c)           Employees participating in both plans.  Employees participating in both this Plan

and a defined benefit plan maintained by the Employer are not required to

receive a minimum contribution under each plan. The Plan Administrator shall

set forth which of the applicable provisions below shall override the other

terms of the Plan, to the extent necessary to satisfy the requirements of Code

section 415 and/or avoid duplication of the required aggregation of multiple

plans.




 




(1) The Employer shall provide the minimum

contribution solely under this Plan, and the minimum contribution must equal

five percent (5%) of each Non-Key Employee’s 414(q) Compensation for each year

with respect to which both plans are treated as Top- Heavy; or




 




(2) The Employer shall provide the minimum benefit

under the defined benefit plan required by Code section 416 for each year with

respect to which both plans are treated as Top-Heavy; or




 




(3) The Employer shall provide the minimum benefit

by a floor offset approach (pursuant to Revenue Ruling 76-259, 1976-2 C. B.

111) under which the defined benefit minimum is provided in the defined benefit

plan and is offset by the benefits provided under this Plan.




 




(4) The Plan Administrator shall prove, using a

comparability analysis (pursuant to Revenue Ruling 81-202, 1981-2 C. B. 93)

that the plans are providing benefits at least equal to the defined benefit

minimum.




 




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9.06.       Change from Top-Heavy Plan to Non Top-Heavy Plan.  In the event that the Plan becomes a Top-Heavy Plan, such change

shall be treated as a Plan amendment which affects the vesting schedule. In the

event that the Plan, thereafter, ceases to be a Top-Heavy Plan, the effect of

again following the regular vesting schedule(s) (as specified in the Adoption

Agreement) shall be treated as a Plan amendment which affects the vesting

schedule, and shall be governed by the provisions of Section 6.04.




 




117