EX-10.1





EXHIBIT
10.1



AMENDED AND RESTATED AMERICAN PACIFIC CORPORATION




DEFINED BENEFIT PENSION PLAN




As Amended and Restated Effective October 1, 2008





 









 








Table of Contents




	 	 	 	 	 	 	 
	Introduction	 	 	1	 
	 	 	 
	 	 	 	 
	I	 	Definitions
	 	 	2	 
	1.01	 	Accrued Benefit
	 	 	2	 
	1.02	 	Active Participant
	 	 	2	 
	1.03	 	Actuarial Equivalent
	 	 	2	 
	1.04	 	Affiliated Group
	 	 	3	 
	1.05	 	Annuity Starting Date
	 	 	3	 
	1.06	 	Applicable Interest Rate
	 	 	3	 
	1.07	 	Applicable Mortality Table
	 	 	3	 
	1.08	 	Beneficiary
	 	 	3	 
	1.09	 	Benefit
	 	 	3	 
	1.10	 	Board
	 	 	3	 
	1.11	 	Code
	 	 	3	 
	1.12	 	Company
	 	 	4	 
	1.13	 	Compensation
	 	 	4	 
	1.14	 	Covered Compensation
	 	 	7	 
	1.15	 	Disability
	 	 	7	 
	1.16	 	Disability Retirement Date
	 	 	7	 
	1.17	 	Early Retirement Age
	 	 	8	 
	1.18	 	Early Retirement Date
	 	 	8	 
	1.19	 	Effective Date
	 	 	8	 
	1.20	 	Effective Date of this Restatement
	 	 	8	 
	1.21	 	Eligible Employee
	 	 	8	 
	1.22	 	Employee
	 	 	8	 
	1.23	 	Employer
	 	 	9	 
	1.24	 	Entry Date
	 	 	9	 
	1.25	 	ERISA
	 	 	9	 
	1.26	 	Inactive Participant
	 	 	9	 
	1.27	 	Late Retirement Date
	 	 	9	 
	1.28	 	Normal Retirement Age
	 	 	9	 
	1.29	 	Normal Retirement Date
	 	 	9	 
	1.30	 	Participant
	 	 	9	 
	1.31	 	Participating Employer
	 	 	9	 
	1.32	 	Plan
	 	 	9	 
	1.33	 	Plan Administrator
	 	 	10	 
	1.34	 	Plan Year
	 	 	10	 
	1.35	 	Restatement
	 	 	10	 
	1.36	 	Retirement Benefit
	 	 	10	 
	1.37	 	Social Security Retirement Age
	 	 	10	 
	1.38	 	Spouse
	 	 	10	 
	1.39	 	Trust Agreement
	 	 	10	 
	1.40	 	Trust Fund
	 	 	10	 
	1.41	 	Trustee
	 	 	10	 






 









 






	 	 	 	 	 	 	 
	1.42	 	Year of Service
	 	 	10	 
	 	 	 
	 	 	 	 
	II	 	Eligibility, Vesting and Benefit Service
	 	 	14	 
	2.01	 	Eligibility Requirements
	 	 	14	 
	2.02	 	Participation upon Reemployment
	 	 	14	 
	2.03	 	Inactive Participants
	 	 	15	 
	2.04	 	Vesting Service
	 	 	15	 
	2.05	 	Benefit Service
	 	 	15	 
	2.06	 	Disregarded Service
	 	 	16	 
	 	 	 
	 	 	 	 
	III	 	Retirement Benefits
	 	 	17	 
	3.01	 	Normal Retirement Benefit
	 	 	17	 
	3.02	 	Early Retirement Benefit
	 	 	19	 
	3.03	 	Late Retirement Benefit
	 	 	19	 
	3.04	 	Disability Retirement Benefit
	 	 	20	 
	3.05	 	No Duplication of Benefits
	 	 	21	 
	3.06	 	Maximum Excess Allowance
	 	 	21	 
	 	 	 
	 	 	 	 
	IV	 	Benefits upon Termination of Employment
	 	 	24	 
	4.01	 	Deferred Normal Retirement Benefit
	 	 	24	 
	4.02	 	Deferred Early Retirement Benefit
	 	 	24	 
	4.03	 	Form of Payment
	 	 	25	 
	 	 	 
	 	 	 	 
	V	 	Form and Payment of Retirement Benefits
	 	 	26	 
	5.01	 	Normal Form of Benefit
	 	 	26	 
	5.02	 	Other Forms of Benefit
	 	 	26	 
	5.03	 	Waiver of Qualified Joint and Survivor Annuity
	 	 	27	 
	5.04	 	Cash-out of Accrued Benefit
	 	 	29	 
	5.05	 	Commencement of Benefits
	 	 	30	 
	5.06	 	Methods of Distribution
	 	 	35	 
	5.07	 	Suspension of Benefits
	 	 	37	 
	5.08	 	Direct Rollover Distributions
	 	 	38	 
	 	 	 
	 	 	 	 
	VI	 	Preretirement Death Benefits
	 	 	40	 
	6.01	 	Eligibility for Death Benefit
	 	 	40	 
	6.02	 	Amount of Qualified Preretirement Survivor Annuity
	 	 	40	 
	6.03	 	Alternative Death Benefit
	 	 	41	 
	6.04	 	Cash-out of Accrued Benefit
	 	 	42	 
	6.05	 	Time of Payment
	 	 	42	 
	 	 	 
	 	 	 	 
	VII	 	Limitations on Benefits
	 	 	43	 
	7.01	 	Limitation on Annual Benefit
	 	 	43	 
	 	 	 
	 	 	 	 
	VIII	 	Top-Heavy Rules
	 	 	45	 
	8.01	 	Top-Heavy Determination
	 	 	45	 
	8.02	 	Vesting
	 	 	48	 






 









 






	 	 	 	 	 	 	 
	8.03	 	Minimum Benefits
	 	 	49	 
	 	 	 
	 	 	 	 
	IX	 	Plan Administration
	 	 	51	 
	9.01	 	Plan Administrator
	 	 	51	 
	9.02	 	General Powers, Rights and Duties
	 	 	51	 
	9.03	 	Manner of Action
	 	 	52	 
	9.04	 	Interested Committee Member
	 	 	53	 
	9.05	 	Resignation or Removal of Committee Members
	 	 	53	 
	9.06	 	Nondiscrimination
	 	 	53	 
	9.07	 	Delegation and Reliance
	 	 	53	 
	9.08	 	Claims Procedure
	 	 	53	 
	9.09	 	Plan Administrator’s Decision Final
	 	 	55	 
	9.10	 	Standard of Review
	 	 	55	 
	9.11	 	Information Required by Plan Administrator
	 	 	55	 
	9.12	 	Expenses of the Plan
	 	 	56	 
	9.13	 	Freedom from Liability
	 	 	56	 
	 	 	 
	 	 	 	 
	X	 	Amendment or Termination
	 	 	57	 
	10.01	 	Amendment or Modification of the Plan
	 	 	57	 
	10.02	 	Termination of the Plan
	 	 	57	 
	10.03	 	Distribution upon Termination of the Plan
	 	 	58	 
	10.04	 	Residual Assets
	 	 	58	 
	10.05	 	Restriction on Distribution of Benefits
	 	 	58	 
	10.06	 	Repayment of Restricted Amounts
	 	 	59	 
	 	 	 
	 	 	 	 
	XI	 	Funding of the Plan
	 	 	61	 
	11.01	 	Establishment of Trust
	 	 	61	 
	11.02	 	Employer Contributions
	 	 	61	 
	11.03	 	Funding Standards
	 	 	61	 
	11.04	 	Changes in Funding Medium or Method
	 	 	61	 
	11.05	 	Purchase of Annuities
	 	 	61	 
	11.06	 	No Diversion
	 	 	62	 
	11.07	 	Treatment of Forfeitures
	 	 	62	 
	11.08	 	Return of Contributions
	 	 	62	 
	11.09	 	Litigation by Participants or Beneficiaries
	 	 	62	 
	 	 	 
	 	 	 	 
	XII	 	General Provisions
	 	 	64	 
	12.01	 	Non-Alienation
	 	 	64	 
	12.02	 	Substitute Payee
	 	 	65	 
	12.03	 	Absence of Guarantee
	 	 	65	 
	12.04	 	No Contract
	 	 	65	 
	12.05	 	Missing Persons
	 	 	65	 
	12.06	 	Corporate Change
	 	 	66	 
	12.07	 	Merger
	 	 	66	 
	12.08	 	USERRA
	 	 	66	 






 









 






	 	 	 	 	 	 	 
	XIII	 	Adoption of the Plan by Other Entities
	 	 	67	 
	13.01	 	Adoption of Plan
	 	 	67	 
	13.02	 	Withdrawal from Plan
	 	 	67	 







 









 





Introduction



The Amended and Restated American Pacific Corporation Defined Benefit Pension Plan (hereinafter the
“Plan”) was first established effective October 1, 1987 by American Pacific Corporation (the
“Company”) for the benefit of Eligible Employees. It was subsequently amended and restated
effective October 1, 1997. The Plan has now been amended and restated effective October 1, 2008
(the “Effective Date of this Restatement”), except as otherwise specifically provided, to comply
with the Economic Growth and Tax Relief Reconciliation Act of 2001 (“EGTRRA”) and to incorporate
changes described in Internal Revenue Notice 2007-94 (the “2007 Cumulative List”).



The rights and benefits of Participants who are Active Participants in the Plan on or after the
Effective Date of this Restatement shall be determined as provided in this amended and restated
Plan. The rights and benefits of any Participant who was not an Active Participant on or after the
Effective Date of this Restatement, but who is entitled to benefits under the Plan, shall be
determined in accordance with the applicable provisions of the Plan in effect at the time such
Participant separated from service, except as required by applicable law or regulation or except as
specifically provided or changed by subsequent amendments.



It is intended that the Plan, together with the Trust Agreement, meet all the requirements of ERISA
as amended and qualify under Sections 401(a) and 501(a) of the Code. Except as otherwise provided,
the Plan and all matters relating thereto shall be governed, construed and administered in
accordance with the applicable laws of the United States and the State of Nevada.




1









 








ARTICLE I




Definitions



The following terms used in the Plan have the meanings ascribed to them in Article I unless a
different meaning is plainly required by the context. Some of the words and phrases used in the
Plan are not defined in this Article I, but, for convenience, are defined as they are introduced
into the text. Words in one gender should be deemed to include the other gender. Nouns and
pronouns stated in the singular should be deemed to include the plural and the plural should be
deemed to include the singular whenever appropriate. Any headings used herein are included for
ease of reference only, and are not to be construed so as to alter any of the terms of the Plan.





	1.01	 	Accrued Benefit means the amount of the monthly Retirement Benefit a Participant has
earned as of the applicable determination date payable at Normal Retirement Date and shall be
determined as provided in Section 3.01, using Final Average Compensation, Benefit Service and
Covered Compensation as of the determination date.
	 
	1.02	 	Active Participant means any Participant who is employed by a Participating Employer
as an Eligible Employee on a determination date.
	 
	1.03	 	Actuarial Equivalent means a benefit that is of equal value at the date of
determination to the benefits for which they are to be substituted. For purposes of this
Plan, the following conventions shall be used to calculate Actuarial Equivalence.






	(a)     	(1)	 	For distributions prior to October 1, 2007, for all purposes other than
lump sum benefits, Actuarial Equivalence shall be based on an interest rate of seven
percent (7%) and mortality rates from the 1984 Unisex Mortality Table.






	 	(2)	 	For distributions on and after October 1, 2008, for all
purposes other than lump sum benefits, the interest rate shall be six percent
(6%) and the mortality table shall be the RP-2000 Mortality Table Projected to
2007 with Scale AA (50% Male).
	 
	 	(3)	 	For distributions during the period beginning October 1, 2007
and ending September 30, 2008, for all purposes other than lump sum benefits,
the interest rate and mortality table shall be as described in (a)(1) or
(a)(2), whichever provides the greater benefit.






	 	 	 	In no event shall the application of Section (a)(2) cause a benefit to be less than
a benefit in the same form, but calculated by applying the factors described in
Section 3.1(a) as in effect on September 30, 2008 to the Participant’s Accrued
Benefit as of that date.




2









 






	 	(b)	 	For lump sum benefits, Actuarial Equivalence shall be based on the Applicable
Interest Rate and the Applicable Mortality Table.






	1.04	 	Affiliated Group means the Company and all other entities required to be aggregated
with the Company under Sections 414(b), (c), (m), or (o) of the Code but only in the period
during which such other entity is required to be so aggregated with the Company.
	 
	1.05	 	Annuity Starting Date means the first day of the first period for which an amount is
payable as an annuity, or in the case of a benefit not payable in the form of an annuity, the
first day on which all events have occurred which entitle the Participant to such a benefit.
	 
	1.06	 	Applicable Interest Rate means the annual rate of interest on 30-year Treasury
securities, as specified by the Commissioner of Internal Revenue, for the month in which falls
the Annuity Starting Date for the distribution. Effective on the date this Restatement is
executed the Applicable Interest Rate shall be the rate specified above for the second month
preceding the month in which falls the Annuity Starting Date for the distribution.
	 
	1.07	 	Applicable Mortality Table means the table prescribed by the Secretary of the
Treasury under Section 417(e)(3) of the Code. The Applicable Mortality Table is currently the
table prescribed in Revenue Ruling 2001-62.
	 
	1.08	 	Beneficiary means a person or entity designated as such by a Participant, on a form
provided by the Plan Administrator, to receive benefits payable as a result of the
Participant’s participation in the Plan upon the Participant’s death. Notwithstanding the
preceding sentence, the Beneficiary shall be the Participant’s Spouse at the time of death,
unless:






	 	(a)	 	The Participant has no Spouse at the time of death, or
	 
	 	(b)	 	The Participant’s Spouse consents in writing to the Participant’s designation
of an alternate Beneficiary in the manner prescribed in Article V and Article VI, or
	 
	 	(c)	 	The Participant’s Spouse cannot be located.






	 	 	If the Participant has no Spouse at the time of death, or if no other person designated as
Beneficiary survives the Participant, the Beneficiary shall be the Participant’s estate.
	 
	1.09	 	Benefit means Retirement Benefit.
	 
	1.10	 	Board means the Board of Directors of the Company.
	 
	1.11	 	Code means the Internal Revenue Code of 1986 as amended from time to time. All
references to specific Code sections are deemed to be references to such sections as they may
be amended or superseded.




3









 






	1.12	 	Company means American Pacific Corporation.
	 
	1.13	 	Compensation.






	 	(a)	 	Compensation means the Participant’s Section 415 Compensation during
employment with the Employer for the Plan Year except as provided below. Compensation
shall include any amount which is contributed by the Employer pursuant to a salary
reduction agreement and which is not includible in the gross income of the Employee
under Sections 125, 132(f), 402(e)(3), 402(h) or 403(b) of the Code.
	 
	 	 	 	Compensation of each Participant taken into account under the Plan for determining
all benefits provided under the Plan for any determination period shall not exceed
the limit on Compensation prescribed in Section 401(a)(17) of the Code (the “Section
401(a)(17) Limit”). The limit for any Plan Year beginning on and after January 1,
2002, shall be $200,000 as adjusted for cost-of-living increases in accordance with
Code Section 401(a)(17)(B). In determining benefit accruals in Plan Years beginning
after December 31, 2001, the annual compensation limit for determination periods
beginning before January 1, 2002, shall be $200,000. The cost of living adjustment
in effect on January 1 of any calendar year shall apply to any determination period
beginning in such calendar year. For this purpose, the “determination period” is
any period not exceeding twelve (12) months over which Compensation is determined.
If a determination period consists of fewer than twelve (12) months, the Section
401(a)(17) Limit will be multiplied by a fraction, the numerator of which is the
number of months in the determination period, and the denominator of which is twelve
(12).
	 
	 	 	 	For Plan Years beginning before January 1, 1997, in determining the Compensation of
a Participant for purposes of this limitation, the rules of Section 414(q)(6) of the
Code shall apply, except in applying such rules, the term “family” shall include
only the Spouse of the Participant and any lineal descendant of the Participant who
has not attained age nineteen (19) before the close of the year. If, as a result of
the application of such rules, the adjusted Section 401(a)(17) Limit is exceeded,
then (except for purposes of determining the portion of Compensation up to the
integration level), the limitation shall be prorated among the affected individuals
in proportion to each such individual’s Compensation as determined under this
Section prior to the application of this limitation. This paragraph shall not apply
for Plan Years beginning on and after January 1, 1997.
	 
	 	 	 	Section 401(a)(17) Participants — 1994 Fresh Start.
	 
	 	 	 	For the purpose of applying this subsection (a), the benefit formula in Section 3.01
shall be applied so that the Accrued Benefit of any Section 401(a)(17) Participant
or Statutory Section 401(a)(17) Participant in any Plan Year beginning after
December 31, 1993 will be equal to the greater of (1) or (2) where




4









 












	 	(1)	 	means the sum of his Accrued Benefit on the last day of the
last Plan Year beginning in 1993, frozen in accordance with Treasury Regulation
Section 1.401(a)(4)-13, and his Accrued Benefit based on the benefit formula
under the Plan as amended for Plan Years beginning after 1993, taking into
account only Years of Benefit Service beginning after 1993 and
	 
	 	(2)	 	means his Accrued Benefit based on the benefit formula under
the Plan as amended for Plan Years beginning after 1993, taking into account
his total Years of Benefit Service.






	 	 	 	For the purpose of this subsection, a Statutory Section 401(a)(17) Participant means
a Participant with an Accrued Benefit as of a date on or after the first day of the
first Plan Year beginning on or after January 1, 1994 that was determined taking
into account Compensation for a Plan Year beginning prior to 1989 in excess of two
hundred thousand dollars ($200,000) for any year. Also for the purpose of this
subsection (2), a Section 401(a)(17) Participant means a Participant with an Accrued
Benefit as of a date on or after the first day of the first Plan Year beginning on
or after January 1, 1994 that was determined taking into account Compensation for a
Plan Year beginning prior to 1994 in excess of one hundred fifty thousand dollars
($150,000) for any year.
	 
	 	(b)	 	Final Average Compensation means the monthly average of a Participant’s
Compensation over any sixty (60) consecutive month period preceding the termination of
employment or retirement which produces the highest average.
	 
	 	 	 	If a Participant does not have the requisite amount of service described above,
Final Average Compensation shall be determined on the basis of his entire period of
employment as an Employee preceding the determination date.
	 
	 	 	 	The provisions of this subsection (b) shall in no case reduce the Final Average
Compensation of any individual who was employed by an Employer as an Employee on
September 30, 1989, to an amount that is less than such individual’s Final Average
Compensation as of such date, computed in accordance with the terms of the Plan in
effect on that date.
	 
	 	(c)	 	Section 415 Compensation. This subsection is effective October 1,
2007. Section 415 Compensation means the Participant’s wages, within the meaning of
Section 3401(a) of the Code and all other payments of compensation to the Participant
by the Employer (in the course of the Employer’s trade or business) for which the
Employer is required to furnish the Participant a written statement under Sections
6041(d), 6051(a)(3) and 6052 of the Code plus amounts that would be included in
wages but for an election under Code section 125(a), 132(f)(4), 402(e)(3),
402(h)(1)(B), 402(k), or 457(b). However, Section 415 Compensation shall exclude
amounts paid by the Employer as reimbursement for moving expenses incurred by the
Employee to the extent that at the time of payment it is reasonable




5









 






	 	 	 	to believe that
these amounts are deductible by the Employee under Section 217 of the Code. Section
415 Compensation shall be determined without regard to any rules that limit the
remuneration included in wages based on the nature or location of the employment or
the services performed. Section 415 Compensation shall not exceed the compensation
limit prescribed under Code section 401(a)(17).
	 
	 	 	 	Compensation for a limitation year also shall include the following:






	 	(1)	 	Amounts earned but not paid during the limitation year solely
because of the timing of pay periods and pay dates, provided the amounts are
paid during the first few weeks of the next limitation 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
year.
	 
	 	(2)	 	Compensation paid by the later of 2 1/2 months after an
employee’s severance from employment with the employer maintaining the plan or
the end of the limitation year that includes the date of the employee’s
severance from employment with the employer maintaining the plan, if:






	 	(A)	 	the payment is regular compensation for
services during the employee’s regular working hours, or compensation
for services outside the employee’s regular working hours (such as
overtime or shift differential), commissions, bonuses, or other similar
payments, and, absent a severance from employment, the payments would
have been paid to the employee while the employee continued in
employment with the employer;
	 
	 	(B)	 	The following amounts, but only if they would
have been included in Section 415 compensation if paid prior to the
employee’s severance from employment with the employer maintaining the
Plan:






	 	(i)	 	Payment for unused accrued bona
fide sick, vacation or other leave that the employee would have
been able to use if employment had continued; or
	 
	 	(ii)	 	Payment received by the employee
pursuant to a nonqualified unfunded deferred compensation plan
provided such payment would have been paid at the same
time if employment had continued, but only to the extent
includible in gross income.






	 	 	 	Any payments not described above shall not be considered compensation if
paid after severance from employment, even if they are paid by the later




6









 






	 	 	 	of
2 1/2 months after the date of severance from employment or the end of the
limitation year that includes the date of severance from employment;
	 
	 	(3)	 	Deemed Code section 125 compensation. Deemed Code section 125
compensation is an amount that is excludable under Code section 106 that is not
available to a Participant in cash in lieu of group health coverage under a
Code section 125 arrangement solely because the Participant is unable to
certify that he or she has other health coverage. Amounts are deemed Code
section 125 compensation only if the employer does not request or otherwise
collect information regarding the Participant’s other health coverage as part
of the enrollment process for the health plan.
	 
	 	(4)	 	Payments to an individual who does not currently perform
services for the Employer or an Affiliated Employer by reason of qualified
military service (within the meaning of Section 414(u)(1) of the Code to the
extent these payment do not exceed the amounts the individual would have
received if he had continued to perform service for the Employer or an
Affiliated Employer rather than entering qualified military service.
	 
	 	(5)	 	Compensation paid to a Participant who is permanently and
totally disabled, as defined in Section 22(e)(3) of the Code, provided salary
continuation applied to all Participants who are permanently and totally
disabled for a fixed or determinable period, or the Participant was not a
highly compensated employed, as defined in Section 414(q) of the Code
immediately before becoming disabled.






	1.14	 	Covered Compensation means, for a Plan Year, a Participant’s Compensation (determined
in accordance with definition of Compensation set forth in this Plan) that is not in excess of
the applicable wage base determined in accordance with the 1988 Covered Compensation Table.
	 
	1.15	 	Disability means total and permanent disability. A Participant will be considered
Disabled or under a Disability if he is qualified for Social Security disability benefits.
From time to time, the Employer may similarly require proof of the continued Disability of the
Participant. If the Plan Administrator determines from such evidence that the Disability of
such Participant has ceased and that his Social Security disability benefits have terminated
and he has not reached his Normal Retirement Date or returned to Employment, all his rights to
any benefits payable thereafter under this Plan on account of such Disability shall cease. If
such Participant refuses for a period of 12 consecutive months to furnish to the Plan
Administrator reasonable information requested by the Plan
Administrator for such determination, then all his rights to any benefit under this Plan on
account of such Disability shall cease.
	 
	1.16	 	Disability Retirement Date means the first day of the month following Disability upon
which the Participant would have been eligible to receive a Normal Retirement Benefit had his
employment with the Employer continued.




7









 












	1.17	 	Early Retirement Age means the date on which the Participant first attains age
fifty-five (55) and has completed at least ten (10) years of Vesting Service.
	 
	1.18	 	Early Retirement Date means the first day of the month coinciding with or next
following the date the Participant elects to receive his Retirement Benefits under the Plan
where such date is after the Participant’s attainment of his Early Retirement Age but is prior
to the Participant’s attainment of his Normal Retirement Age.
	 
	1.19	 	Effective Date means October 1, 1987.
	 
	1.20	 	Effective Date of this Restatement means October 1, 2008, except as otherwise
provided herein. The Effective Date of this Restatement in respect of Employees of any
Employer that had not adopted the Plan as of the Effective Date of the Restatement shall be
the date of adoption of this Plan by such Employer. In respect of Employers of any entity,
all or substantially all of the assets of which shall be acquired by, or that shall be merged
into or consolidated with an Employer after the Effective Date of this Restatement, the term
Effective Date of this Restatement shall mean the date of such acquisition, merger or
consolidation.
	 
	1.21	 	Eligible Employee means an Employee employed by a Participating Employer, provided
such person is not included in a unit of employees covered by a collective bargaining
agreement in the negotiation of which retirement benefits were the subject of good faith
bargaining if two percent or fewer of the employees of the Employer covered by such collective
bargaining agreement are “professionals,” as such term is defined in proposed or final
Treasury Regulations, and who was not a Participant in the Plan on the date before the
Effective Date of this Restatement, unless coverage under the Plan was negotiated by a union
and the Employer.
	 
	1.22	 	Employee means a person employed by an Employer, and shall not include any individual
who performs services for an Employer solely as an independent contractor.
	 
	 	 	Employee also means a leased employee within the meaning of Section 414(n) of the Code to
the extent required by law.
	 
	 	 	The term “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 Section 414(n)(6) of the Code) on a substantially
full-time basis for a period of at least one year, and such services are performed under the
primary direction and control of 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.




8









 






	 	 	A leased employee shall not be considered an employee of the recipient if: (i) such
employee is covered by a money purchase pension plan providing: (1) a nonintegrated employer
contribution rate of at least ten percent (10%) of compensation, as defined in Section
415(c)(3) of the Code, but including amounts contributed pursuant to a salary reduction
agreement which are excludible from the employee’s gross income under Sections 125,
402(e)(3), 402(h) or 403(b) of the Code, (2) immediate participation, and (3) full and
immediate vesting; and (ii) leased employees do not constitute more than twenty percent
(20%) of the recipient’s nonhighly compensated workforce.
	 
	1.23	 	Employer means the Company and any other member of the Affiliated Group.
	 
	1.24	 	Entry Date means the date an Eligible Employee may enter the Plan. The Entry Date
shall be the first day of the first month and the first day of the seventh month of the Plan
Year which date coincides with or next follows the date the Eligible Employee satisfies the
eligibility requirements set out in Section 2.01 of the Plan.
	 
	1.25	 	ERISA means the Employee Retirement Income Security Act of 1974, as amended from time
to time.
	 
	1.26	 	Inactive Participant means any Participant who: (a) was transferred to an Employer
which does not maintain this Plan for its employees; (b) was transferred to any group of
employees not covered by the Plan; or (c) terminated service with the Employer (for as long as
he is entitled to benefits under the Plan).
	 
	1.27	 	Late Retirement Date means the first day of the month coinciding with or next
following the date a Participant retires, where such date is after his Normal Retirement Date.
	 
	1.28	 	Normal Retirement Age means the later of the date the Participant attains age
sixty-five (65) or the fifth (5th) anniversary of the date the Participant
commenced participation in the Plan.
	 
	1.29	 	Normal Retirement Date means the first day of the month coinciding with or next
following the date the Participant attains his Normal Retirement Age. A Participant who is
employed by an Employer on the date he attains his Normal Retirement Age shall be 100% vested
in his Accrued Benefit.
	 
	1.30	 	Participant means any Eligible Employee who becomes eligible to participate in the
Plan pursuant to Article II and who continues to be entitled to any benefits under the Plan.
	 
	1.31	 	Participating Employer means the Company and any member of the Affiliated Group which
adopts this Plan as provided in Article XIII.
	 
	1.32	 	Plan means Amended And Restated American Pacific Corporation Defined Benefit Pension
Plan as it may from time to time be amended. The Plan shall be deemed to include the Trust.




9









 






	1.33	 	Plan Administrator means the person or persons designated to oversee the operation
and administration of the Plan pursuant to Article IX.
	 
	1.34	 	Plan Year means the twelve (12) consecutive month period beginning on October 1 and
ending on the next following September 30.
	 
	1.35	 	Restatement means this Plan as amended and restated herein.
	 
	1.36	 	Retirement Benefit means the amount to which a Participant shall become entitled, is
entitled to or is receiving under this Plan.
	 
	1.37	 	Social Security Retirement Age means respectively: (a) age 65 for a Participant born
before January 1, 1938; (b) age 66 for a Participant born after December 31, 1937 but before
January 1, 1955, and (c) age 67 for a Participant born after December 31, 1954.
	 
	1.38	 	Spouse means the person to whom the Participant is legally married on his Annuity
Starting Date or, if earlier, on his date of death. The status of an individual as a Spouse
of a Participant shall be determined under the laws of the jurisdiction of the Participant’s
domicile as of the time such status is determined.
	 
	1.39	 	Trust Agreement means the trust agreement and any and all amendments and successor
agreements entered into between the Company and the Trustee for the purpose of funding
benefits under the Plan. The Trust Agreement shall be deemed to be part of this Plan as if
all of the terms and provisions were fully set forth herein.
	 
	1.40	 	Trust Fund means all sums of money or other property held by the Trustee pursuant to
the terms of the Trust Agreement.
	 
	1.41	 	Trustee means the Trustee or any successors thereto appointed to administer the Trust
Fund.
	 
	1.42	 	Year of Service and other service measurements under the Plan shall be determined
utilizing the special definitions of this Section. Unless otherwise specified, Service shall
be credited for employment with any member of the Affiliated Group.






	 	(a)	 	A Year of Service means a Computation Period during which an Employee
is credited with at least one thousand (1000) Hours of Service.
	 
	 	(b)	 	A one-year Break in Service means a Computation Period during which an
Employee fails to complete more than five hundred (500) Hours of Service. However, an
unpaid leave of absence approved in writing by the Plan Administrator shall not
constitute a Break in Service or a termination of employment for eligibility,
participation or vesting purposes. An unpaid leave of absence approved in writing by
the Company shall not constitute a Break in Service or a termination of employment for
eligibility, participation or vesting purposes.




10









 






	 	(c)	 	Computation Periods.






	 	(1)	 	The Eligibility Computation Period means the twelve
(12) consecutive month period beginning on the date the Employee first performs
an Hour of Service for an Employer. Provided, however, that succeeding
Eligibility Computation Periods shall be the twelve (12) consecutive month
period beginning on the first day of the Plan Year, commencing with the Plan
Year which begins on or immediately prior to the first anniversary of the date
the Employee first performed an Hour of Service.
	 
	 	(2)	 	The Vesting Computation Period means the twelve (12)
consecutive month period beginning on the first day of the Plan Year.
	 
	 	(3)	 	Benefit Service Computation Period means the twelve
(12) consecutive month period beginning on the first day of the Plan Year.






	 	(d)	 	An Hour of Service means:






	 	(1)	 	Each hour for which an Employee is paid or entitled to payment
for the performance of duties with an Employer during the applicable
Computation Period.
	 
	 	(2)	 	Each hour for which an Employee is paid, or entitled to
payment, by an Employer on account of a period of time during which no duties
are performed (irrespective of whether the employment relationship has
terminated) due to vacation, holiday, illness, incapacity (including
disability), layoff, jury duty, military duty or leave of absence, except
that






	 	(A)	 	Not more than five hundred one (501) Hours of
Service shall be credited on account of any single continuous period
during which the Employee performs no duties (whether or not such
period occurs in a single Computation Period), and
	 
	 	(B)	 	Hours of Service shall not be credited where
such payment is made or is due under a plan maintained solely for the
purpose of complying with applicable worker’s compensation,
unemployment or disability insurance laws, or solely to reimburse an
Employee for medical or medically-related expenses.






	 	(3)	 	Each hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by the Employer. No more than five
hundred one (501) Hours of Service shall be credited for payment of back pay on
account of any single continuous period during which the Employee did not or
would not have performed duties. Hours of Service shall be credited under this
paragraph to the computation period to which the




11









 






	 	 	 	award or agreement pertains,
rather than the computation period in which the agreement or the award or
payment is made. The same Hours of Service shall not be credited under both
(1) and (2) above and this subpart.
	 
	 	(4)	 	Each hour an Employee on leave from employment to serve in the
Armed Forces of the United States would have been paid, directly or indirectly,
or entitled to payment under (1) above assuming that but for such military
service he would have been regularly engaged in the performance of his duties.
Such hours shall be credited to the Computation Period in which he would have
been regularly engaged in the performance of his duties but for such military
service. Provided, however, that no Hours of Service shall be credited under
this Section unless the Employee returns to active employment with a member of
the Affiliated Group within the period provided by law for the protection of
his re-employment rights.






	 	 	 	Hours of Service for reasons other than the performance of duties shall be
determined and credited in accordance with Department of Labor Regulation
§ 2530.200b-2(b) and (c), which is incorporated herein by reference.
	 
	 	(e)	 	Special Maternity/Paternity Rule. Solely for the purpose of
determining whether a Break in Service has occurred, an Employee who is absent from
employment because of the Employee’s pregnancy, the birth of the Employee’s child, the
placement of a child with the Employee in connection with the adoption of such child by
the Employee, or the need to care for such child for a period beginning immediately
following such birth or placement, shall be credited with:






	 	(1)	 	The Hours of Service which otherwise would normally have been
credited to such individual but for such absence, or
	 
	 	(2)	 	In any case in which the Plan Administrator is unable to
determine the hours described above, eight (8) Hours of Service per day of such
absence.






	 	 	 	The above rule shall apply only if the Employee furnishes to the Plan Administrator
such timely information as it may require to establish that the absence was for the
above reasons and to determine the number of days of such absence.
	 
	 	 	 	Hours of Service shall be credited in the Computation Period in which the absence
from work begins if such credit is necessary to prevent a Break in Service in that
period. In any other case, such Hours of Service shall be credited in the
immediately following Computation Period. In no event shall more than five hundred
one (501) Hours of Service shall be credited because of such pregnancy or placement.
	 
	 	(f)	 	Family and Medical Leave. Solely to the extent required by law, an
Employee who is absent from employment because of a leave of absence under the Family




12









 






	 	 	 	and Medical Leave Act of 1993 shall receive credit for Hours of Service during such
absence. Provided, however, that the same Hours of Service shall not be credited under
both this subsection and any other provision of this Section.




13









 











ARTICLE II




Eligibility, Vesting and Benefit Service





	2.01	 	Eligibility Requirements.






	 	(a)	 	Each Eligible Employee who was a Participant in the Plan immediately prior to
the Effective Date of this Restatement shall continue to be a Participant. Each
Eligible Employee who had satisfied the eligibility requirements of the Plan
immediately prior to the Effective Date of this Restatement but who had not yet become
a Participant shall become a Participant in this Plan on the Effective Date of this
Restatement. Each other Eligible Employee shall become a Participant in this Plan on
the Entry Date coinciding with or next following attainment of age twenty-one (21) and
the completion of one (1) Year of Service.
	 
	 	(b)	 	In the event that the Company shall at any time acquire all or substantially
all of the assets of another operating business or entity, or all or substantially all
of the assets of another operating business or entity located in a geographically
distinct area, the employees of such other operating business or entity who are
thereafter employed by the Employer and become Eligible Employees shall receive credit
for periods of service in the employ of such other business or entity for purposes of
this Section 2.01 to the extent provided in a resolution of the board of directors of
the Company adopted at or near the time of such acquisition or in the written
agreements pursuant to which such acquisition was made; but only if such Employees
would have received credit for such service in the employ of such other business or
entity under the terms of this Plan if such Employees had been employed by an Employer.
The Plan Administrator shall see to it that the provisions of this subsection 2.01(b)
are applied in a uniform and nondiscriminatory manner and in a manner consistent with
the provisions of Section 9.06 hereof. No employee shall receive credit for service in
the employ of another business or entity pursuant to this subsection 2.01(b) if the
crediting of such service would cause the Plan to fail to comply with any of the
requirements of Section 401(a) of the Code for treatment as a qualified plan.






	2.02	 	Participation upon Reemployment.






	 	(a)	 	An Eligible Employee who separates from service after satisfying the
eligibility requirements of Section 2.01 but before the next Entry Date shall become a
Participant immediately upon reemployment as an Eligible Employee by a Participating
Employer if he returns to employment after the next Entry Date but prior to incurring a
one-year Break in Service.
	 
	 	(b)	 	A Participant who separates from service and is subsequently reemployed as an
Eligible Employee by a Participating Employer after incurring a one-year Break




14









 






	 	 	 	in Service shall again become an Active Participant in the Plan upon performance of an
Hour of Service.






	2.03	 	Inactive Participants. Subject to Section 2.06, an Inactive Participant shall
continue to be credited with Vesting Service, Benefit Service and Compensation as if he had
continued to be an Active Participant until employment with the member of the Affiliated Group
ceases.
	 
	 	 	Subject to Section 2.06, an Inactive Participant shall again become an Active Participant
upon return to employment with a Participating Employer or upon transfer to an employee
group eligible to participate in the Plan.
	 
	2.04	 	Vesting Service.






	 	(a)	 	Except as provided in Section 2.06, a Participant shall be credited with one
year of Vesting Service for each Year of Service with an Employer.
	 
	 	(b)	 	An Employee’s Vesting Service shall also include periods of employment with a
predecessor employer’s business prior to its acquisition (or prior to the acquisition
of certain assets of such business) by the Company:






	 	(1)	 	If and to the extent specified in a resolution of the Board of
Directors of the Employee’s Employer at the time such Employer adopts this
Plan; or
	 
	 	(2)	 	The Company shall have continued a pension or profit sharing
plan of the predecessor employer or, to the extent required under Section
414(a)(2) of the Code, if the Company shall have maintained a pension or a
profit sharing plan that was not the plan maintained by a predecessor employer.






	 	(c)	 	The provisions of this Section shall not operate to decrease any Participant’s
Vesting Service to a period that is shorter than the period of the Participant’s
Vesting Service as of October 1, 1989, under the terms of this Plan, as effective prior
to October 1, 1989.






	2.05	 	Benefit Service.






	 	(a)	 	Except as provided in Section 2.06, a Participant shall be credited with one
year of Benefit Service for each Benefit Service Computation Period during which he
completes one thousand (1,000) Hours of Service with an Employer.
	 
	 	 	 	Benefit Service is credited in full years only.
	 
	 	(b)	 	Participants who become eligible to participate in the Plan after the Effective
Date of this Restatement as a consequence of the adoption of this Plan by an employing
entity, as a consequence of the acquisition by the Company of the assets of an
employing entity, or as a consequence of the merger of an employing entity into




15









 






	 	 	 	the Company, shall receive Benefit Service to the extent and upon the terms and
conditions specified in a resolution of the Board of Directors of the employing
entity on the basis of the most recent period of employment with such employing
entity prior to the date on which the employing entity adopts the Plan or prior to
the date of the acquisition or merger.
	 
	 	(c)	 	Notwithstanding the foregoing provisions of this Section, in the event that the
assets of another qualified pension plan shall be merged with and into this Plan, with
respect to Participants who become Participants as a result of such consolidation, (1)
Benefit Service may be granted in such manner and to such extent as shall be provided
in connection with such consolidation, on the basis of accredited service (however
designated) accrued under such other plan prior to the effective date of such
consolidation, or (2) in lieu of the granting of Benefit Service, the benefits based
upon accredited service (however designated) accrued under such other plan prior to the
effective date of such consolidation may be preserved as a special retirement benefit,
with respect to which all requirements for such accredited service shall be governed by
the terms and provisions of such other private pension plan, as amended to the
effective date of such consolidation.






	2.06	 	Disregarded Service. The Service to be credited to an Employee under this Article
shall not include Service prior to a Break in Service if:






	 	(a)	 	The Employee did not have a nonforfeitable right to an Accrued Benefit derived
from Employer contributions at the time of the Break in Service, and
	 
	 	(b)	 	The number of consecutive one-year Breaks in Service equals or exceeds the
greater of five (5) or the aggregate number of Years of Service credited to the
Employee before such Break in Service.




16









 











ARTICLE III




Retirement Benefits





	3.01	 	Normal Retirement Benefit. A Participant who terminates employment on or after
reaching Normal Retirement Age and on or before his Normal Retirement Date shall be entitled
to a monthly Retirement Benefit commencing on his Normal Retirement Date equal to two percent
(2%) (base benefit percentage) of the Participant’s Final Average Compensation up to Covered
Compensation; plus two and sixty-five one hundredths percent (2.65%) (excess benefit
percentage) of the Participant’s Final Average Compensation in excess of his Covered
Compensation, the sum multiplied by his years of Benefit Service up to but not exceeding
twenty (20) such years.
	 
	 	 	Notwithstanding the foregoing provisions of this Section 3.01, however, the monthly
Normal Retirement Benefit shall in no case be less than fifty dollars ($50.00).
	 
	 	 	Notwithstanding the foregoing, the benefit provided to a Participant shall not
violate the cumulative permitted disparity limits set forth in Treas. Reg.
§1.401(l)-5. In this regard, the number of years of Benefit Service taken into
account above for any Participant will not exceed the Participant’s cumulative
disparity limit. The Participant’s cumulative disparity limit is equal to
thirty-five (35) minus the number of years during which the Participant earned a
year of credited service under one or more qualified plans or simplified employee
pensions ever maintained by the Employer, other than years for which a Participant
earned a year of Benefit Service under this Plan. If the Participant’s cumulative
disparity limit is less than the period of years used to determine the Participant’s
benefit above, then for years after the Participant reaches the cumulative disparity
limit and through the end of the period specified above, the Participant’s benefit
will be equal to the excess benefit percentage, or, if lesser, the highest
percentage permitted under the 133 1/3 percent accrual rule of Section 411(b)(1)(B)
of the Code (if applicable) times Final Average Compensation.
	 
	 	 	If a Participant begins receiving benefits at an age other than Normal Retirement
Age, the Participant’s benefit will be determined in accordance with Section 3.06.
	 
	 	 	For any Plan Year in which a Participant benefits under more than one plan of the
Employer, the benefit provided above to a Participant shall not violate the overall
permitted disparity limits set forth in Treas. Reg. §1.401(l)-5. In this regard,
for any Plan Year this Plan benefits any Employee who benefits under another
qualified plan or simplified employee pension maintained by the Employer that
provides for permitted disparity (or imputes disparity), the benefit for each
Participant under this Plan will be equal to the base benefit percentage times the
Participant’s Final Average Compensation.




17









 






	 	 	If the preceding paragraph is applicable, the Fresh Start Date (within the meaning
of Treas. Reg. §1.401(a)(4)-13) shall be the last day of the Plan Year preceding the
Plan Year in which this paragraph is applicable. In addition, if in any subsequent
Plan Year, this Plan no longer benefits any Employee who also has benefits under
another qualified plan or simplified employee pension maintained by the Employer
that provides for permitted disparity (or imputes permitted disparity), the Fresh
Start Date shall be the last day of the Plan Year preceding the Plan Year in which
this paragraph is no longer applicable.






	 	(c)	 	Fresh Start Rules — Change in Benefit Formula






	 	(1)	 	Fresh Start Definitions — For purposes of this
subsection, the following terms shall be defined as follows:
	 
	 	 	 	Fresh Start — A change in the Normal Retirement Benefit formula.
	 
	 	 	 	Fresh Start Date — September 30, 1989, which is the day immediately
preceding the effective date of the Fresh Start.
	 
	 	 	 	Pre-Fresh Start Plan Year — Any Plan Year ending on or before the
Fresh Start Date.
	 
	 	 	 	Post-Fresh Start Plan Year — Any Plan Year beginning after the Fresh
Start Date.
	 
	 	 	 	Fresh Start Date Accrued Benefit — The Participant’s Accrued Benefit
as of the Fresh Start Date, calculated and adjusted as described in clause
(3) of the subsection.
	 
	 	(2)	 	Calculation of Accrued Benefit After Fresh Start Date.
With respect to any Participant with an Accrued Benefit under the Plan (or
any predecessor) as of the Fresh Start Date attributable to any Pre-Fresh Start
Year, and who has at least one Hour of Service in a Post-Fresh Start Plan Year,
the Participant’s Accrued Benefit in any Post-Fresh Start Plan Year will be
equal to the greater of his Fresh Start Date Accrued Benefit or his Accrued
Benefit based on the benefit formula under the Plan as amended for Post-Fresh
Start Date Plan Years, taking into account his total Years of Benefit Service
both before and after the Fresh Start Date.
	 
	 	(3)	 	Calculation of Fresh Start Date Accrued Benefit. A
Participant’s Fresh Start Date Accrued Benefit is an amount equal to his
Accrued Benefit determined as of (and as if the Participant had terminated
employment with the Affiliated Group on) the Fresh Start Date, based upon the
Plan
provisions in effect on the Fresh Start Date without regard to any amendment
adopted after the Fresh Start Date (unless the amendment is




18









 






	 	 	 	recognized as
retroactively effective before the Fresh Start Date under Section 401(b) of
the Code or Treas. Regs. 1.401(a)(4)-11(g)). However, the Fresh Start Date
Accrued Benefit as so determined is subject to adjustment as follows:






	 	(A)	 	The Fresh Start Date Accrued Benefit shall be
subject to increases based on adjustments under Section 415(d)(1) of
the Code in the maximum benefit permitted under Section 415(b)(1) of
the Code.
	 
	 	(B)	 	The Fresh Start Date Accrued Benefit shall be
adjusted to increase the benefits of former employees who were employed
on the Fresh Start Date.
	 
	 	(C)	 	The Fresh Start Date Accrued Benefit shall be
increased, if it includes top heavy minimum benefits, to the extent
necessary to comply with the requirement of Section 416(c)(1)(D)(i) of
the Code that top heavy minimum benefits be based on the Participant’s
Compensation averaged over the highest five or fewer years.
	 
	 	(D)	 	The Fresh Start Date Accrued Benefit shall be
adjusted so that the Fresh Start Date Accrued Benefit is not less than
it would have been if the formula’s base benefit percentage had been
50% of the formula’s excess benefit percentage. The Fresh Start Date
Accrued Benefit is not less than if the offset had been limited to 50%
of the benefit determined without application of the offset.






	3.02	 	Early Retirement Benefit. A Participant who terminates employment prior to Normal
Retirement Age and on or after attaining his Early Retirement Age shall be entitled to receive
the Normal Retirement Benefit commencing on his Normal Retirement Date. In lieu of his Normal
Retirement Benefit, such Participant may elect to receive a monthly benefit commencing on his
Early Retirement Date equal to his Accrued Benefit as of such date, reduced by twenty-five
one-hundredths percent (.25%) for each calendar month or portion thereof that the
Participant’s Early Retirement Date precedes his Normal Retirement Date.
	 
	 	 	The election to receive an Early Retirement Benefit shall be made by filing a written
election with the Plan Administrator prior to the first day of the month coinciding with or
next following the date of the applying Participant’s separation from the service of the
Employer. The election to receive an Early Retirement Benefit shall be irrevocable after
commencement of any Benefit payments.
	 
	3.03	 	Late Retirement Benefit. A Participant who terminates employment after his Normal
Retirement Date shall be entitled to receive a monthly Retirement Benefit commencing on the
Participant’s Late Retirement Date equal to the greater of:




19









 












	 	(a)	 	the benefit to which he would have been entitled pursuant to Section 3.01 if he
had retired at his Normal Retirement Date, but adjusted by including any additional
years of Benefit Service which have accrued since his Normal Retirement Date up to the
maximum number, if any, of years of Benefit Service described in Section 3.01 and by
taking into account any increases in Compensation earned since his Normal Retirement
Date,
	 
	 	 	 	or
	 
	 	(b)	 	the Actuarial Equivalent as of such Late Retirement Date of the unadjusted
benefit to which he would have been entitled pursuant to Section 3.01 if he had retired
at his Normal Retirement Date or in the case of a Participant who retires during any
Plan Year following the Plan Year in which his Normal Retirement Date occurs, the
Actuarial Equivalent of the benefit to which he would have been entitled pursuant to
this Section 3.03 if he had retired at the close of the prior Plan Year.
	 
	 	 	 	However, the number of payments certain described in Section 5.01 shall be reduced
to the extent necessary to conform to a period permitted by Section 5.06, in which
case each monthly payment shall be increased so that the benefit is the Actuarial
Equivalent of what it would have been without the reduction in period certain.






	3.04	 	Disability Retirement Benefit. A Participant who retires due to Disability shall be
entitled to receive a monthly Disability Retirement Benefit commencing on his Disability
Retirement Date equal to his vested Accrued Benefit calculated:






	 	(a)	 	As if the Participant had continued to earn Benefit Service from the date he
was first absent from work due to his Disability until his Normal Retirement Date and
	 
	 	(b)	 	As if his Compensation had remained constant from the date he was first absent
from work due to his Disability until his Normal Retirement Date.






	 	 	A Participant who has been determined to be disabled but who is not currently receiving a
Disability Retirement Benefit shall be considered to be actively employed by the Employer
for purposes of Article VI.
	 
	 	 	A Participant whose Disability has ended and who returns to employment with the Employer
shall be credited with Benefit Service for the period during which he was disabled. A
Participant who does not return to employment with the Employer after his Disability has
ended shall cease to be credited with Benefit Service upon his recovery and shall be
entitled to benefits under the Plan only to the extent provided in Article IV of the Plan.
	 
	 	 	Not withstanding the above, a Participant whose Disability precedes his completion of ten
(10) Years of Vesting Service (for the purpose of Article IV) shall not be entitled to a




20









 






	 	 	Disability Retirement Benefit or continued accrual of Benefit Service during Disability
under this Plan.
	 
	3.05	 	No Duplication of Benefits. Any benefit payable under this Plan shall be reduced by
any benefit paid to a Participant under the terms of any other defined benefit plan qualified
under Section 401(a) of the Code to which the Employer contributes, directly or indirectly,
other than by payment of taxes, to the extent that such benefit is based on a period of
employment with the Employer for which a Participant receives credit for benefits under the
Plan.
	 
	3.06	 	Maximum Excess Allowance.






	 	(a)	 	The Maximum Excess Allowance at any retirement age shall be the lesser of (i)
the base benefit percentage or (ii) the percentage specified in the table below for the
Plan’s normal form of benefit specified in Section 5.01(a).





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Normal Form of Benefit (%)
	 	 	 	 	 	 	 	 	 	 	Life Annuity	 	Life Annuity	 	Life Annuity
	 	 	 	 	 	 	 	 	 	 	+	 	+	 	+
	 	 	 	 	 	 	 	 	 	 	5 Year	 	10 Year	 	15 Year
	 	 	 	 	 	 	Life Annuity	 	Certain	 	Certain	 	Certain
	 
	 	Adjustment	 	 	1.00	 	 	 	0.97	 	 	 	0.91	 	 	 	0.84	 
	 
	 	Age At Which Benefits Commence	 	 
	 
	 	 	70	 	 	 	1.048	 	 	 	1.017	 	 	 	0.954	 	 	 	0.880	 
	 
	 	 	69	 	 	 	0.950	 	 	 	0.922	 	 	 	0.865	 	 	 	0.798	 
	 
	 	 	68	 	 	 	0.863	 	 	 	0.837	 	 	 	0.785	 	 	 	0.725	 
	 
	 	 	67	 	 	 	0.784	 	 	 	0.760	 	 	 	0.713	 	 	 	0.659	 
	 
	 	 	66	 	 	 	0.714	 	 	 	0.693	 	 	 	0.650	 	 	 	0.600	 
	 
	 	 	65	 	 	 	0.650	 	 	 	0.631	 	 	 	0.592	 	 	 	0.546	 
	 
	 	 	64	 	 	 	0.607	 	 	 	0.589	 	 	 	0.552	 	 	 	0.510	 
	 
	 	 	63	 	 	 	0.563	 	 	 	0.546	 	 	 	0.512	 	 	 	0.473	 
	 
	 	 	62	 	 	 	0.520	 	 	 	0.504	 	 	 	0.473	 	 	 	0.437	 
	 
	 	 	61	 	 	 	0.477	 	 	 	0.463	 	 	 	0.434	 	 	 	0.401	 
	 
	 	 	60	 	 	 	0.433	 	 	 	0.420	 	 	 	0.394	 	 	 	0.364	 
	 
	 	 	59	 	 	 	0.412	 	 	 	0.400	 	 	 	0.375	 	 	 	0.346	 
	 
	 	 	58	 	 	 	0.390	 	 	 	0.378	 	 	 	0.355	 	 	 	0.328	 
	 
	 	 	57	 	 	 	0.368	 	 	 	0.357	 	 	 	0.335	 	 	 	0.309	 
	 
	 	 	56	 	 	 	0.347	 	 	 	0.337	 	 	 	0.316	 	 	 	0.291	 
	 
	 	 	55	 	 	 	0.325	 	 	 	0.315	 	 	 	0.296	 	 	 	0.273	 







	 	(b)	 	If a Benefit is distributed in a form other than the normal form (as specified
in Section 5.01) or at an age other than Normal Retirement Age, the Benefit shall be
adjusted as provided in this subsection.




21









 












	 	(1)	 	If Benefit payments commence to a Participant at a time other
than Normal Retirement Age, the Participant’s Accrued Benefit, before the
adjustments provided for early or late retirement, shall be multiplied by a
fraction, the numerator of which is the Annual Factor that corresponds to the
age at which benefits commence to the Participant in the Plan’s normal form of
benefit, and the denominator of which is the Annual Factor that corresponds to
the Normal Retirement Age under the Plan in the normal form of benefit.
	 
	 	(2)	 	If Benefit payments commence to the Participant in a form other
than the normal form of benefit, the product in the preceding paragraph will be
actuarially adjusted in accordance with the provisions of Section 1.03.
	 
	 	(3)	 	The Annual Factor is the factor derived from the table in (a)
based on the Normal Retirement Age (determined without regard to the years of
participation requirement, if any), and the Plan’s normal form of benefit.
	 
	 	(4)	 	If Benefit payments commence in a month other than the month in
which the Participant attains the age specified in the foregoing table, the
Annual Factor will be determined by straight line interpolation.
	 
	 	(5)	 	Notwithstanding (4) above, for a benefit commencement date
preceding the first day of the month in which the Participant attains age
fifty-five (55), the Applicable Factor shall be the Actuarial Equivalent of the
age fifty-five (55) Annual Factor determined in (a). For a benefit
commencement date following the first day of the month in which the Participant
attains age seventy (70), the Applicable Factor shall be the Actuarial
Equivalent of the age seventy (70) Annual Factor determined in (a).
	 
	 	(6)	 	A Disability Retirement Benefit other than a qualified
Disability Retirement Benefit, commencing before a Participant’s Normal
Retirement Age will be treated as a Benefit subject to the limitations of this
Section. A Disability Retirement Benefit, will be treated as a qualified
Disability Retirement Benefit only if the benefit: (i) is payable under the
Plan solely on account of a Participant’s Disability, as determined by the
Social Security Administration; (ii) terminates no later than the Participant’s
Normal Retirement Age; (iii) is not in excess of the amount of the benefit
that would be payable if the Participant had separated from service at Normal
Retirement Age, and (iv) upon attainment of Early or Normal Retirement Age,
the Participant receives a benefit that satisfies the accrual
and vesting rules of Section 411 of the Code (and the regulations
thereunder) without taking into account the Disability Retirement Benefits
made up to that age.




22









 






	 	(7)	 	If this Plan has had a Fresh Start, the limitations in this
subsections (1) and (2) will be applied only to the Participant’s accruals for
years for which the Plan provides for the disparity permitted under Section
401(l) of the Code. All Benefit accruals for years for which the Plan does not
provide for the disparity permitted under Section 401(l) of the Code will be
actuarially adjusted in accordance with the provisions of Section 1.03.




23









 











ARTICLE IV




Benefits upon Termination of Employment





	4.01	 	Deferred Normal Retirement Benefit. A Participant who separates from service before
his Normal Retirement Date shall be entitled to receive, on his Normal Retirement Date after
submitting a written application on a form prescribed for that purpose by the Plan
Administrator, the vested portion of his Accrued Benefit determined as of the date he
separated from service.
	 
	 	 	A Participant shall become vested in his Accrued Benefit attributable to Employer
contributions according to the following schedule:





	 	 	 	 	 
	Years of Vesting Service	 	Vested Percentage
	less than 3
	 	 	0	%
	3 but less than 4
	 	 	20	%
	4 but less than 5
	 	 	40	%
	5 but less than 6
	 	 	60	%
	6 but less than 7
	 	 	80	%
	7 or more
	 	 	100	%







	 	 	Accrued Benefits forfeited pursuant to this Section shall not be used to increase the
Accrued Benefit of any other Participant.
	 
	4.02	 	Deferred Early Retirement Benefit. A Participant entitled to the Deferred Normal
Retirement Benefit described above who separated from service prior to attaining his Early
Retirement Age may elect to receive the Benefit commencing on his Early Retirement Date. The
amount of such Benefit shall be reduced for early commencement as provided in Section 3.02.
	 
	 	 	Furthermore, a Participant entitled to the Deferred Normal Retirement Benefit described
above who separated from service prior to attaining his Early Retirement Age may elect to
receive his or her vested Benefit in either a single sum as described in Section 5.02(g) or
in the Normal Form described in Section 5.01, commencing as soon as practicable after the
Participant terminates employment with the Employer, provided the Actuarial Equivalent of
the Participant’s vested monthly Accrued Benefit does not exceed ten thousand dollars
($10,000) and not less than the amount specified in Section 5.04 for involuntary cashout.
The vested Accrued Benefit shall be reduced so that the benefit commencing at such date is
the Actuarial Equivalent of his vested Benefit payable at his Normal Retirement Date.




24









 






	 	 	The election to receive a Deferred Early Retirement Benefit shall be made by filing a
written election with the Plan Administrator. Such election shall be irrevocable after
commencement of any Benefit payments.
	 
	4.03	 	Form of Payment. The benefits described in this Article IV shall be payable in the
forms set out in Article V.




25









 











ARTICLE V




Form and Payment of Retirement Benefits





	5.01	 	Normal Form of Benefit. Unless a Participant elects an optional form of payment, the
Benefits described in Article III and Article IV shall be payable in the form of an immediate
Life Annuity as described in Section 5.02(a) or, in the case of a Participant who is married
on his Annuity Starting Date, in the form of an immediate Qualified Joint and Survivor Annuity
as described in Section 5.02(b).
	 
	5.02	 	Other Forms of Benefit. Provided the requirements of Section 5.03 are met, a
Participant may waive the normal form of benefit under the Plan and elect to receive Benefits
in one of the forms set out below. Benefits payable in a form other than that described in
(a) below shall be the Actuarial Equivalent thereof:






	 	(a)	 	Life Annuity — Under this form of benefit (also referred to as a
straight-life annuity), payment of monthly installments will commence as provided in
Article III or IV and will continue for the lifetime of the Participant and will cease
upon his death.
	 
	 	(b)	 	Qualified Joint and Survivor Annuity — Under this form of benefit,
payment of monthly installments will commence as provided in Article III or IV and will
be made for the lifetime of the Participant. If the Participant predeceases his
Spouse, payment in an amount equal to 50% (or 75% or 100%, if elected by the
Participant) of the Participant’s Benefit will continue to the Spouse for life.
	 
	 	(c)	 	Five Years Certain and Life Annuity — Under this form of benefit,
payment of monthly installments will commence as provided in Article III or IV and will
continue for the Participant’s lifetime. If the Participant dies before sixty (60)
monthly installments have been paid, such benefit will be payable to the Participant’s
Beneficiary until a total of sixty (60) monthly installments have been paid. If, upon
the Participant’s death, there is no living designated Beneficiary or, if a Beneficiary
receiving a benefit after the Participant’s death dies before a total of sixty (60)
monthly installments have been paid to the Participant and the Beneficiary, the
commuted value of the unpaid installments shall be paid to the Participant’s estate.
	 
	 	(d)	 	Ten Years Certain and Life Annuity — Under this form of benefit,
payment of monthly installments will commence as provided in Article III or IV and will
continue for the Participant’s lifetime. If the Participant dies before one hundred
twenty (120) monthly installments have been paid, such Benefit will be payable to
the Participant’s Beneficiary until a total of one hundred twenty (120) monthly
installments have been paid. If, upon the Participant’s death, there is no living
designated Beneficiary or, if a Beneficiary receiving a benefit after the




26









 






	 	 	 	Participant’s death dies before a total of one hundred twenty (120) monthly
installments have been paid to the Participant and the Beneficiary, the commuted
value of the unpaid installments shall be paid to the Participant’s estate.
	 
	 	(e)	 	Fifteen Years Certain and Life Annuity — Under this form of benefit,
payment of monthly installments will commence as provided in Article III or IV and will
continue for the Participant’s lifetime. If the Participant dies before one hundred
eighty (180) monthly installments have been paid, such benefit will be payable to the
Participant’s Beneficiary until a total of one hundred eighty (180) monthly
installments have been paid. If, upon the Participant’s death, there is no living
designated Beneficiary or, if a Beneficiary receiving a benefit after the Participant’s
death dies before a total of one hundred eighty (180) monthly installments have been
paid to the Participant and the Beneficiary, the commuted value of the unpaid
installments shall be paid to the Participant’s estate.
	 
	 	(f)	 	Joint and Survivor Annuity — Under this form of benefit, monthly
payments will commence as provided in Article III or IV and will be made for the life
of the Participant. If the Participant predeceases his Beneficiary, payments in an
amount equal to 50%, 75% or 100% of the Participant’s monthly Benefit shall continue to
such Beneficiary for life.
	 
	 	(g)	 	Single Sum Distribution — Under this form of benefit, a single sum
payment will be made to the Participant that is the Actuarial Equivalent of the monthly
Benefit payable under subsection (a) within a reasonable time after the end of the Plan
Year in which the Participant’s employment with the Company terminates, and in any
event before the end of the second Plan Year following the Plan Year in which the
Participant separates from the service of the Company. This option is available only
for Participants for whom the Actuarial Equivalent of the monthly Benefit is not more
than $10,000 and not less than the amount specified in Section 5.04 for involuntary
cashout or who, under the terms of the Plan in effect on the day before the Effective
Date of this Restatement, was entitled to elect a single sum distribution of his or her
Accrued Benefit (but only with respect to the portion of Accrued Benefit earned before
the amendment eliminating the right to such single sum distribution was executed).






	 	 	The election of a form of benefit under this Section may not be revoked or changed after a
Participant’s Annuity Starting Date.
	 
	5.03	 	Waiver of Qualified Joint and Survivor Annuity.






	 	(a)	 	For the purposes of this Section, the term “Qualified Joint and Survivor
Annuity” means not only the form of benefit described in Section 5.02(b) but also the
normal form of benefit described in Section 5.01 payable to a Participant who is not
married on his Annuity Starting Date.




27









 






	 	(b)	 	No less than thirty (30) days and no more than ninety (90) days before the
Annuity Starting Date, the Plan Administrator shall provide a Participant with a
written explanation in nontechnical language, of the terms and conditions of: (1) the
Qualified Joint and Survivor Annuity, (2) his right to elect to waive the benefit and
the effect of such election, (3) the rights of the Participant’s Spouse with respect to
such election, (4) the right to make and effect of, a revocation of a previous
election, and (5) the relative values of the various forms of benefit under the Plan.
	 
	 	(c)	 	A Participant may elect to waive the Qualified Joint and Survivor Annuity and
to receive payment under another payment form only if the following conditions are met:






	 	(1)	 	The waiver is made within the ninety (90) day period ending on
the Participant’s Annuity Starting Date.
	 
	 	(2)	 	The Participant’s Spouse consents in writing to such waiver and
to the designation of the beneficiary or the form of benefit elected. Such
consent must be witnessed by a notary public or plan representative, must be
filed with the Plan Administrator and must acknowledge the effect of such
wavier. No consent is required if it is established to the satisfaction of the
Plan Administrator that the Participant does not have a Spouse or that the
Spouse cannot be located.






	 	 	 	The election to waive the Qualified Joint and Survivor Annuity may be revoked by the
Participant at any time prior to his Annuity Starting Date.
	 
	 	 	 	However, if the Participant, after having received the written explanation described
above, affirmatively elects a form of distribution and the spouse consents to that
form of distribution (if necessary), the Annuity Starting Date may be less than
thirty (30) days after the written explanation was provided to the Participant,
provided that the following requirements are met:






	 	(3)	 	The Plan Administrator provides information to the Participant
clearly indicating that the Participant has a right to at least thirty (30)
days to consider whether to waive the Qualified Joint and Survivor Annuity and
consent to another form of distribution;
	 
	 	(4)	 	The Participant is permitted to revoke an affirmative
distribution election until the later of the Annuity Starting Date or the
eighth day following the date the foregoing explanation is provided to the
Participant;
	 
	 	(5)	 	The Annuity Starting Date is after the date the foregoing
explanation is provided to the Participant. The Annuity Starting Date may be
before the affirmative distribution election is made and before distribution
commences; and




28









 






	 	(6)	 	Distribution in accordance with the affirmative election does
not commence before the eighth day after the foregoing explanation is provided
to the Participant.






	 	(d)	 	Except as otherwise provided in Section 5.05(c), no benefit payment will be
made prior to the time the notice requirements of subsection (b) have been satisfied.
Any benefit payment which is delayed by operation of this subsection shall be paid to
the Participant once the benefit amount is calculated.






	5.04	 	Cash-out of Accrued Benefit. Notwithstanding any other provision of the Plan, a
Participant who separates from service or retires with a vested Accrued Benefit shall be paid
the Actuarial Equivalent of such benefit in a single sum, provided that such Actuarial
Equivalent has not, at the time of this or any prior distribution, exceeded the amount
(currently five thousand dollars ($5,000)) permitted to be cashed out without consent by
Section 417(e) of the Code. Any such payment shall be in lieu of the benefits otherwise
payable hereunder. For purposes of this Section, if the present value of the Participant’s
vested Accrued Benefit is zero, the Participant shall be deemed to have received a
distribution of such vested benefit on the date his employment with the Employer ends.
	 
	 	 	If a Participant who has received a single sum payment under this Section or Section 5.02(i)
resumes employment covered under the Plan, such Participant’s later Accrued Benefit
hereunder shall not include Benefit Service attributable to his prior period of employment
unless such Participant repays to the Plan the full amount of the previous distribution plus
interest at the rate determined for purposes of Section 411(c)(2)(C) of the Code (assessed
from the date of the previous distribution), before the earlier of: i) five (5) years after
the first date on which the Participant subsequently resumes employment covered by the Plan,
or ii) the close of the first period of five (5) consecutive one-year Breaks in Service
commencing after distribution. The Plan Administrator shall prescribe such procedures as it
deems necessary or appropriate to facilitate such a repayment to the Plan by a person who
resumes employment covered under the Plan.
	 
	 	 	A Participant who resumes employment covered under the Plan shall be given the opportunity
to repay to the Plan the amount described above only if such Participant received a
distribution of the Actuarial Equivalent of his vested Benefit and the amount thereof was
less than the Actuarial Equivalent of his Accrued Benefit (expressed in the form of an
annual benefit commencing at Normal Retirement Age).
	 
	 	 	Notwithstanding the above, no single sum payment may be made to the recipient of a Qualified
Joint and Survivor Annuity after the Annuity Starting Date, unless the
Participant and his Spouse (or where the Participant has died, the surviving Spouse) consent
in writing to such distribution.
	 
	 	 	Effective March 28, 2005, in the event a Participant fails to make an affirmative election
to either receive the lump sum payment in cash or have it directly rolled over to an




29









 






	 	 	eligible retirement plan pursuant to the provisions of Section 5.08 within such election
period as shall be prescribed by the Plan Administrator and such lump sum payment exceeds
$1,000, the Plan Administrator shall direct the Trustee to transfer such lump sum payment to
an individual retirement plan (within the meaning of Section 7701(a)(37) of the Code)
(“IRA”) selected by the Plan Administrator. The IRA shall be maintained for the exclusive
benefit of the Participant on whose behalf such transfer is made. The transfer shall occur
as soon as practicable following the end of the election period. The funds in the IRA shall
be invested in an investment product designed to preserve principal and provide a reasonable
rate of return, whether or not such return is guaranteed, consistent with liquidity, as
determined from time to time by the Plan Administrator. In implementing the provisions of
this paragraph, the Plan Administrator shall:






	 	(a)	 	enter into a written agreement with each IRA provider setting forth the terms
and conditions applicable to the establishment and maintenance of the IRAs in
conformity with applicable law;
	 
	 	(b)	 	furnish Participants with notice of the Plan’s automatic rollover provisions,
including, but not limited to, a description of the nature of the investment product in
which the assets of the IRA will be invested and how the fees and expenses attendant to
the IRA will be allocated, and a statement that a Participant may roll over the assets
of the IRA to another eligible retirement plan. Such notice shall be provided to
Participants in such time and form as shall be prescribed by the Plan Administrator in
accordance with applicable law; and
	 
	 	(c)	 	fulfill such other requirements of the safe harbor contained in Department of
Labor Regulation §2550.404a-2 and, if applicable, the conditions of Department of Labor
Prohibited Transaction Class Exemption 2004-16.






	5.05	 	Commencement of Benefits.






	 	(a)	 	Unless the Participant elects otherwise in writing pursuant to a provision of
this Plan, the payment of Benefits under the Plan to a Participant shall commence no
later than the sixtieth (60th) day after the close of the Plan Year in which the last
of the following occurs:






	 	(1)	 	The Participant attains Normal Retirement Age;
	 
	 	(2)	 	The tenth (10th) anniversary of the Participant’s initial
participation in the Plan; or
	 
	 	(3)	 	The Participant terminates service with all Employers.






	 	 	 	A Participant who wishes to defer the commencement of benefit payments beyond the
latest date specified above may elect to do so by filing with the Plan Administrator
a written statement signed by the Participant that describes the




30









 






	 	 	 	Benefit and the
date on which the payment of the Benefit is to commence. No election may be made
that would defer the first payment date beyond the Required Beginning Date (defined
in subsection (b)). Once filed, an election may be changed only with the consent of
the Plan Administrator.
	 
	 	(b)	 	Notwithstanding the above, for a Participant who reaches age seventy and
one-half (70 1/2) prior to January 1, 2000 distribution of benefits must commence not
later than the April 1 of the calendar year following the calendar year in which the
Participant attains age seventy and one half (70 1/2). Provided, however, that in the
case of an active Participant who has attained age seventy and one half (70 1/2) prior
to January 1, 1988 and who is not a five percent (5%) owner (as defined in Section 416
of the Code), distribution of benefits need not commence until the April 1 of the
calendar year following the calendar year in which the Participant retires. Provided
further, that in the case of an active Participant who attained age seventy and one
half (70 1/2) during 1988 and who is not a five percent (5%) owner (as defined in
Section 416 of the Code), distribution of benefits need not commence until April 1,
1990.
	 
	 	 	 	Effective for Participants who reach age seventy and one-half (70 1/2) on or after
January 1, 2000, with respect to a five percent (5%) owner, distribution of benefits
shall commence not later than April 1 of the calendar year following the calendar
year in which the Participant attains age seventy and one-half (70 1/2). A
Participant who reaches age seventy and one-half (70 1/2) on or after January 1,
2000 and who is not a five percent (5%) owner shall commence receipt of benefits not
later than April 1 of the calendar year following the calendar year in which the
Participant reaches age seventy and one-half or retires, if later.
	 
	 	 	 	If the provisions of this Section 5.05(b) and Section 5.06 require the payment of
benefits to a Participant who has not yet terminated employment, the Participant’s
additional Accrued Benefit earned during each subsequent accrual period and
determined as of the end of such period shall be actuarially reduced to reflect
distributions made during the period to which the additional Accrued Benefit
relates.
	 
	 	(c)	 	Payment of Retirement Benefit. A Participant’s benefit shall be paid
(if a lump sum) or commence (if an annuity form of benefit) upon his Annuity Starting
Date as described below or as soon thereafter as is administratively practicable,
subject to Section 5.05(d). If paid as an annuity, subsequent payments shall be made
as of the first day of each following month.






	 	(1)	 	Termination Prior To Normal Retirement Date. If a
Participant’s employment is terminated before his or her Early Retirement Date
for any
reason other than his or her death, the Participant may request the
distribution notice described in Section 5.03 as well as benefit election
forms at any time on or after the date 90 days before the date he or she is
first eligible to begin receiving benefit payments under the Plan. If a




31









 






	 	 	 	Participant remains employed until he or she is eligible to retire early as
described under Section 3.02, such Participant may request at any time that
the Employer provide him or her with the distribution notice described in
Section 5.03(b) as well as benefit election forms. If such a request is
made, the Employer shall promptly provide the distribution notice and
benefit election forms to the Participant if the Participant’s vested
Accrued Benefit exceeds $5,000. In order to begin receiving benefits, the
Participant must properly complete his or her benefit election forms and
make certain the Employer receives them before the first day of the month
which contains the date which is 90 days after the date of the distribution
notice. If the forms are properly completed and timely received,
distribution of the Participant’s benefits will commence in the form elected
by the Participant (1) as of the first day of the month following the date
the distribution notice is distributed to the Participant if properly
completed forms are returned within thirty days after the date the
distribution notice is distributed, or (2) as of the first day of the month
after the Employer receives properly completed forms if such forms are
returned after the time described in (1) above. Such first day of the month
shall be his or her Annuity Starting Date.
	 
	 	 	 	If through no fault of the Participant, the Employer delays providing the
distribution notice until after the date elected by the Participant on the
application for benefits, the Participant and his Spouse consent in writing
on forms provided by the Employer, and the Participant properly completes
his or her benefit election forms and returns them to the Employer on a
timely basis as described above, the Participant’s benefits will commence in
the form elected by the Participant as of the first day of the month
affirmatively elected by the Participant which date can be no earlier than
the day after (i) the Participant’s last day of employment or if later (ii)
the date the Participant requested the distribution notice. Such first day
of the month shall be his or her Annuity Starting Date.
	 
	 	 	 	Furthermore, the Plan Administrator may, in its sole discretion, accept an
application filed after the proposed Annuity Starting Date if petitioned to
do so by the Participant for good cause shown. If the Participant and his
Spouse consent to such retroactive Annuity Starting Date in writing on forms
provided by the Employer and the Participant properly completes his or her
benefit election forms and returns them to the Employer on a timely basis as
described above, the Participant’s benefits will commence in the form
elected by the Participant as of the first day of the month affirmatively
elected by the Participant which date can be no earlier than the day after
the Participant’s last day of employment. Such first day of the
month shall be his or her Annuity Starting Date.
	 
	 	 	 	Regardless of the Participant’s Annuity Starting Date, in no event shall any
payments be made before seven days have elapsed since the date the






32











 






	 	 	 	Participant received the distribution notice. If a Participant fails to
properly
complete and timely return his or her forms, he or she must request and
receive another distribution notice in order to make a valid benefit
election. If the Participant fails to properly complete and timely return
his or her election forms before his or her required beginning date as
described in Section 5.05(b), distribution of his or her vested Accrued
Benefit will commence as provided in 5.05(b) in the form of a 50% Qualified
Joint and Survivor Annuity, and his required beginning date shall constitute
his or her Annuity Starting Date.
	 
	 	(2)	 	Termination At Normal Retirement Date Or Late Retirement
Date. If a Participant’s employment is terminated at his or her Normal
Retirement Date or Late Retirement Date, and if the Participant’s vested
Accrued Benefit exceeds $5,000, the Employer shall promptly provide the
Participant with the notice described in Section 5.03 and benefit election
forms. In order to begin receiving benefits, the Participant must properly
complete his or her benefit election forms and make certain the Employer
receives them before the first day of the month which contains the date which
is 90 days after the date of the distribution notice. If the forms are properly
completed and timely received, distribution of the Participant’s benefits will
commence in the form elected by the Participant (i) as of the first day of the
month following the date the distribution notice is distributed to the
Participant if properly completed forms are returned within thirty days after
the date the distribution notice is distributed, or (ii) as of the first day of
the month after the Employer receives properly completed forms if such forms
are returned after the time described in (i) above. Such first day of the month
shall be his or her Annuity Starting Date.
	 
	 	 	 	If through no fault of the Participant, the Employer delays providing the
distribution notice until after the first day of the month following the
Participant’s last day of employment or if later the date elected by the
Participant on the application for benefits, the Participant and his Spouse
consent in writing on forms provided by the Employer, and the Participant
properly completes his or her benefit election forms and returns them to the
Employer on a timely basis as described above, the Participant’s benefits
will commence in the form elected by the Participant as of the first day of
the month affirmatively elected by the Participant which date can be no
earlier than the day after (i) the Participant’s last day of employment or
if later, (ii) the date the Participant requested the distribution notice.
Such first day of the month shall be his or her Annuity Starting Date.






	 	 	 	Furthermore, the Plan Administrator may, in its sole discretion, accept an
application filed after the proposed Annuity Starting Date if petitioned to
do so by the Participant for good cause shown. If the Participant and his




33









 






	 	 	 	Spouse consent to such retroactive Annuity Starting Date in writing on
forms provided by the Employer and the Participant properly completes his or
her benefit election forms and returns them to the Employer on a timely
basis as described above, the Participant’s benefits will commence in the
form elected by the Participant as of the first day of the month
affirmatively elected by the Participant which date can be no earlier than
the day after the Participant’s last day of employment. Such first day of
the month shall be his or her Annuity Starting Date.






	 	 	 	Regardless of the Participant’s Annuity Starting Date, in no event shall any
payments be made before seven days have elapsed since the date the
Participant received the distribution notice. If the Participant fails to
properly complete and timely return his or her election forms he or she must
request and receive another distribution notice in order to make a valid
benefit election. If the Participant fails to properly complete and timely
return his or her election forms before his or her required beginning date
as described in Section 5.05(b), distribution of his or her vested Accrued
Benefit will commence as provided in Section 4.6(b) in the form of a 50%
Qualified Joint and Survivor Annuity and his required beginning date shall
constitute his or her Annuity Starting Date.
	 
	 	(3)	 	Effective for a Participant who terminates employment on or
after January 1, 2004, (and on or before his Normal Retirement Date) and whose
Annuity Starting Date pursuant to this Section 5.05(c) is after the
Participant’s Normal Retirement Date, the Participant’s Normal Retirement
benefit shall be actuarially increased to take into account the period after
the Normal Retirement Date during which the Participant is not receiving any
benefits under the Plan. Effective for a Participant who terminates employment
on or after January 1, 2004, (and after his Normal Retirement Date) and whose
Annuity Starting Date pursuant to this Section 5.05(c) is after the Late
Retirement Date, the Participant’s Late Retirement benefit shall be actuarially
increased to take into account the period after the Late Retirement Date during
which the Participant is not receiving any benefits under the Plan.






	 	(d)	 	Effective October 1, 2004, a Participant may elect an Annuity Starting Date
that occurs on or before the date on which the benefits explanation is provided to the
Participant (a “Retroactive Annuity Starting Date”) only as otherwise permitted in the
Plan and only if all of the following requirements are met:






	 	(1)	 	the Participant affirmatively elects a Retroactive Annuity
Starting Date in accordance with procedures specified by the Administrative
Committee;
	 
	 	(2)	 	the Participant’s Spouse consents to the distribution in
accordance with paragraph (c)(2); provided, however, that such Spouse’s consent
shall not be required if the amount of such Spouse’s survivor annuity payments





34









 





	 	 	 	under the Retroactive Annuity Starting Date election is no less than the
amount that the survivor payments to such Spouse would have been under a
Qualified Joint and Survivor Annuity with an Annuity Starting Date after the
date the Benefits Explanation was provided. For purposes of this Section,
where a Participant elects a Retroactive Annuity Starting Date in accordance
with this paragraph, “Spouse” shall mean the individual who would be the
Participant’s Spouse if the date distributions commence were the
Participant’s Annuity Starting Date;






	 	(3)	 	the Participant receives a make-up payment to reflect any
missed payment(s) for the period from the Retroactive Annuity Starting Date to
the date of the actual make-up payment plus interest at the mid-term applicable
federal rate from the date the missed payment(s) would have been made to the
date of the actual make-up payment;
	 
	 	(4)	 	future periodic payments with respect to the Participant are
the same as the future periodic payments, if any, that would have been paid
with respect to the Participant had payments actually commenced on the
Retroactive Annuity Starting Date; and
	 
	 	(5)	 	the requirements of Sections 415(b) and 417(e)(3) of the Code,
as applicable to distributions with Retroactive Starting Dates, are met.






	5.06	 	Methods of Distribution.






	 	(a)	 	Except as otherwise provided in Section 5.02(b) with respect to the Qualified
Joint and Survivor Annuity requirements, the provisions of this Section will apply to
any distribution of a Participant’s interest and will take precedence over any
inconsistent provisions of this Plan. However, this Section is not intended to provide
an optional form of distribution or commencement date not otherwise allowed under the
Plan unless the timing or amount of payments to be made under the applicable provisions
of the Plan, without regard to this Section, would be later than the latest
commencement date or less than the required minimum provided under this Section.
	 
	 	(b)	 	All distributions required under this Section shall be determined and made in
accordance with Section 401(a)(9) of the Code as in effect on October 1, 2002 or as
hereafter amended and the regulations thereunder, including the incidental death
benefit requirements of Code Section 401(a)(9)(G). With respect to distributions made
under the Plan on and after October 1, 2002 and before January 1, 2006 the Plan shall
apply the minimum distribution requirements of Code Section 401(a)(9) in accordance
with Proposed Treasury Regulations issued July 27, 1987 thereunder. With respect to
distributions made after December 31, 2005, the Plan shall apply the minimum
distribution requirements of Code 




35









 






	 	 	 	Section 401(a)(9) in accordance with the Final
Treasury Regulations issued June 15, 2004 thereunder.






	 	(c)	 	Distribution of benefits, if not made in a single sum, shall be made over one
of the following periods (or a combination thereof): 1) the life of such Participant;
2) the lives of such Participant and a designated Beneficiary; 3) a period not
extending beyond the life expectancy of such Participant or 4) a period not extending
beyond the life expectancy of such Participant and a designated Beneficiary.
	 
	 	(d)	 	If the distribution of the Participant’s interest has begun in accordance with
the preceding paragraph and the Participant dies before his entire interest has been
distributed to him, the remaining portion of such interest shall be distributed at
least as rapidly as under the method of distribution used as of his date of death.
	 
	 	(e)	 	If the Participant dies before distribution commences, his or her entire
interest will be distributed no later than the date specified below:






	 	(1)	 	Payments of any portion of such interest to the Participant’s
surviving Spouse shall be made over the life or life expectancy of such
surviving Spouse commencing no later than December 31 of the calendar year in
which the Participant would have attained age seventy and one half (70 1/2) or,
if later, December 31 of the calendar year containing the first anniversary of
the Participant’s death except to the extent an election is made to receive a
distribution of the surviving Spouse’s entire interest no later than December
31 of the calendar year containing the fifth anniversary of the Participant’s
death.
	 
	 	(2)	 	Distribution of the entire interest of a Beneficiary other than
the Participant’s surviving Spouse shall be made no later than December 31 of
the calendar year containing the fifth anniversary of the Participant’s death
except to the extent an election is made to receive distributions over the life
or life expectancy of such designated Beneficiary commencing no later than
December 31 of the calendar year containing the first anniversary of the
Participant’s death;






	 	 	 	Such election must be made by the Participant (or his designated Beneficiary or
surviving Spouse, if the Participant dies without having made such an election) on
or before the earlier of the date by which distribution must commence absent such
election and the date distribution must commence assuming such election has been
made.
	 
	 	 	 	If the Spouse dies before payments begin, subsequent distributions are required
under this subsection (except for subsection (e)(2)) as if the surviving Spouse was
the Participant.




36









 












	 	(f)	 	For the purpose of this Section, distribution of a Participant’s interest is
considered to begin on the Participant’s required beginning date (or, if the last
sentence of subsection (e) applies, the date distribution is required to begin to the
surviving
Spouse pursuant to subsection (e)). If distribution in the form of an annuity
irrevocably commences to the Participant before the required beginning date,
distribution is considered to commence on the date it actually commences.
	 
	 	(g)	 	Any amount paid to a child shall be treated as if it had been paid to the
surviving Spouse if such amount will become payable to the surviving Spouse when the
child reaches the age of majority.
	 
	 	(h)	 	For purposes of this Section, any distribution required under the incidental
death benefit requirements of Section 401(a) of the Code shall be treated as a
distribution required under Section 401(a)(9) of the Code.
	 
	 	(i)	 	If a Participant elects an optional form of benefit that provides a survivor
benefit to a person other than a surviving spouse, the survivor benefit shall be
limited so that the value of the annuity payable during the Participant’s lifetime
shall be not less than fifty-one percent (51%) of the value of the Participant’s
Accrued Benefit calculated at his actual Retirement Date.






	5.07	 	Suspension of Benefits.






	 	(a)	 	Retirement Benefits in pay status will be suspended for each calendar month
following the Annuity Starting Date after a Participant is reemployed on a full-time
permanent basis. Notwithstanding the foregoing, distributions shall continue for any
Participant who does not complete at least forty (40) Hours of Service with the
Employer, or if the Plan has not determined the actual number of Hours of Service, such
Participant does not perform an Hour of Service on each of eight (8) or more days (or
separate work shifts).
	 
	 	(b)	 	Benefits suspended in accordance with this Section shall resume no later than
the first day of the third calendar month following the calendar month when the
Participant is no longer employed on a full-time permanent basis or fails to complete
at least forty (40) Hours of Service with the Employer or to perform an Hour of Service
on each of eight (8) or more days (or separate work shifts). The initial payment upon
resumption shall include the payment scheduled to occur in the calendar month when
payments resume and any amounts withheld during the period between the cessation of
employment and the resumption of payments, less any amounts which are subject to
offset.
	 
	 	(c)	 	Normal Retirement Benefits shall not be withheld by the Plan pursuant to this
Section unless the Plan Administrator notifies the Participant by personal delivery or
first class mail during the first calendar month or payroll period in which the Plan
withholds payments that the payment of his Retirement Benefit is suspended. Such
notification shall contain a description of the specific reasons why the 




37









 






	 	 	 	Participant’s
Benefit is suspended, a description of the Plan provisions relating to the suspension
of Benefits, a copy of such Plan provisions, and a statement to the effect that
applicable Department of Labor regulations may be found in Section
2530.203-3 of the Code of Federal Regulations. In addition, the notice shall contain
a statement indicating that the Participant may seek a review of the suspension of
his Retirement Benefits through the Plan’s claim procedure.






	 	(d)	 	The amount of the Participant’s monthly Benefit which may be suspended shall be
as follows:






	 	(1)	 	Life Annuity. In the case of benefits payable
periodically on a monthly basis for as long as a life (or lives) continues,
such as a straight life annuity or a Qualified Joint and Survivor Annuity, an
amount equal to the portion of a monthly benefit payment derived from Employer
contributions;
	 
	 	(2)	 	Other Forms. In the case of a benefit payable in a form
other than a Life Annuity, an amount of the Employer-derived portion of benefit
payments for a calendar month in which the Participant performs service as
described in subsection (a), which does not exceed the lesser of: (i) the
amount of benefits which would have been payable to the Participant if he had
been receiving monthly benefits under the Plan since actual retirement based on
a single life annuity commencing at actual retirement age or (ii) the actual
amount paid or scheduled to be paid to the Participant for such month.






	 	(e)	 	The Plan Administrator shall establish procedures which are consistent with
Department of Labor Regulation Section 2530.203-3, including, but not limited to,
procedures for the resumption of benefits and the offsetting of benefit overpayments,
if any.
	 
	 	(f)	 	This Section does not apply to the minimum benefits payable to a Non-Key
Employee under Article VIII.
	 
	 	(g)	 	Upon termination of any such Participant’s reemployment, whether or not the
distributions were suspended during such reemployment, such Participant’s pension
distributions shall be computed pursuant to the applicable provisions of the Plan based
on his Benefit Service and Final Average Compensation prior to the date of his previous
retirement as well as his Benefit Service and Final Average Compensation during the
period of his reemployment if such Participant accrued an additional Plan benefit as a
result of service completed during his period of reemployment, but the amount thereof
shall be reduced by an amount that is the Actuarial Equivalent of the accumulated value
of the pension distributions, if any, such Participant received prior to termination of
his reemployment and prior to his attaining age 65. The resulting Benefit shall not be
less than the monthly Benefit in effect prior to reemployment.




38









 












	5.08	 	Direct Rollover Distributions.






	 	(a)	 	Direct Rollover Election. 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 all or any portion of an Eligible Rollover Distribution to
which he is otherwise entitled, paid directly to any one Eligible Retirement Plan
specified by the Distributee in a Direct Rollover.
	 
	 	(b)	 	Definitions.






	 	(1)	 	Eligible Rollover Distribution means any distribution
of all or any portion of the balance to the credit of the Distributee, except
that an Eligible Rollover Distribution does not include: any distribution that
is one of a series of substantially equal periodic payments (not less
frequently than annually) made for the life (or life expectancy) of the
Distributee or the joint lives (or joint life expectancies) of the Distributee
and the Distributee’s designated Beneficiary, or for a specified period of ten
(10) years or more; any distribution to the extent such distribution is
required under Section 401(a)(9) of the Code; any hardship distribution
described in Code Section 401(k)(2)(B)(i)(IV); and for distributions made
before January 1, 2002, any 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).
	 
	 	(2)	 	Eligible Retirement Plan means an individual retirement
account described in Section 408(a) of the Code, an individual retirement
annuity described in Section 408(b) of the Code, an annuity plan described in
Section 403(a) of the Code, an annuity contract described in section 403(b) of
the Code, 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 and which agrees to separately
account for amounts transferred into such plan from this Plan, or a qualified
trust described in Section 401(a) of the Code, that accepts the Distributee’s
Eligible Rollover Distribution.
	 
	 	(3)	 	Distributee means an Employee or former Employee. In
addition, the Employee’s or former Employee’s surviving Spouse and the
Employee’s or former Employee’s Spouse or former Spouse who is the alternate
payee under a qualified domestic relations order, as defined in Section 414(p)
of the Code, are Distributees with regard to the interest of the Spouse or
former Spouse.
	 
	 	(4)	 	Direct Rollover means a payment by the Plan to the
Eligible Retirement Plan specified by the Distributee.




39









 











ARTICLE VI




Preretirement Death Benefits





	6.01	 	Eligibility for Death Benefit. The surviving Spouse of a Participant who:






	 	(a)	 	Had a Benefit under the Plan;
	 
	 	(b)	 	Had at least one Hour of Service on or after August 23, 1984;
	 
	 	(c)	 	Died before his Annuity Starting Date; and
	 
	 	(d)	 	Was married to such Spouse on his date of death,






	 	 	shall be entitled to receive a Qualified Preretirement Survivor Annuity determined
under
Section 6.02 below.
	 
	 	 	A Participant who is entitled to a Qualified Preretirement Survivor Annuity pursuant to this
Section and who is employed by an Employer on the date of his death shall be 100% vested in
his Accrued Benefit on the date of his death.






	6.02	 	Amount of Qualified Preretirement Survivor Annuity.






	 	(a)	 	If a Participant described in Section 6.01 dies after attaining his Earliest
Retirement Age as described in subsection (c) below, the Qualified Preretirement
Survivor Annuity payable to his surviving Spouse shall be a survivor annuity for life
equal to the annuity that would have been payable to such Spouse if the Participant had
retired on the date preceding his death with his Benefit payable in the form of a
Qualified Joint and Survivor Annuity, as described in Section 5.02(b) reduced in
accordance with Section 3.02.
	 
	 	(b)	 	If a Participant described in Section 6.01 dies prior to attaining his Earliest
Retirement Age, the Qualified Preretirement Survivor Annuity payable to his surviving
Spouse shall be a survivor annuity for life equal to the annuity which would have been
payable to such Spouse if such Participant had:






	 	(1)	 	Separated from service on his or her date of death (or date of
actual separation from service, if earlier);
	 
	 	(2)	 	Survived to the date he would have first been eligible to
retire under the Plan;
	 
	 	(3)	 	Retired with a Qualified Joint and Survivor Annuity at such
date or retirement eligibility; and





40









 






	 	(4)	 	Died on the next day.






	 	(c)	 	Notwithstanding subsections (a) and (b), if the Participant is married at the
time of his death, has not waived his benefit under this Section, and dies while
actively employed with an Employer, the surviving Spouse’s death benefit payable shall
be the greater of the benefit described in Section 6.03 payable as if the Participant
had designated his surviving Spouse as his Beneficiary under that Section, expressed as
an Actuarially Equivalent monthly benefit payable for the surviving Spouse’s life, or
the amount described in subsection (a) or (b) above, as applicable.
	 
	 	(d)	 	Notwithstanding the foregoing, the Spouse of a Participant in respect of whom
the death benefit under this paragraph (b) is payable shall be entitled to elect any
optional form of payment pursuant to Section 5.02, provided such election is made
ninety days prior to the date the lifetime benefit would otherwise commence, and
provided further that the Company shall furnish to the Spouse within a reasonable
amount of time after the Spouse’s election, a written explanation in non-technical
language of the lifetime benefit and any alternatives, stating the financial effect (in
terms of dollars) of each form of payment.
	 
	 	(e)	 	For purposes of this Article, “Earliest Retirement Age” means the earliest date
on which the Participant could separate from service and receive a voluntary
distribution from the Plan.






	6.03	 	Alternative Death Benefit. If the Participant dies while employed by an Employer and
(i) the Participant is not married at the time of his death, or (ii) the Participant waives
the benefit under Section 6.02, then






	 	(a)	 	In the event of the Participant’s death before the earlier of his Early
Retirement Date or his Normal Retirement Date, the Participant’s Beneficiary shall
receive a monthly benefit payable for the life of the Beneficiary that is the Actuarial
Equivalent of one hundred percent (100%) of the Actuarial Equivalent of the
Participant’s Accrued Benefit calculated as of the Participant’s death.
	 
	 	(b)	 	In the event the Participant’s death occurs after the earlier of his Early
Retirement Date or his Normal Retirement Date, the death benefit shall be equal to the
greater of sixty percent (60%) of the Participant’s Normal Retirement Benefit
calculated as of the date of the Participant’s death but calculated as though the
Participant had continued his service and earnings until age sixty-five (65), or, one
hundred percent (100%) of the amount determined in (a) above, and payable monthly,
beginning at age sixty-five (65), for the life of the Participant’s Beneficiary.
	 
	 	(c)	 	Notwithstanding the foregoing, the Beneficiary may elect to receive this
benefit in any Actuarially Equivalent optional form of payment pursuant to Section
5.02.




41









 












	6.04	 	Cash-out of Accrued Benefit. Notwithstanding any other provision of the Plan, in
the event the Actuarial Equivalent of the Qualified Preretirement Survivor Annuity has not, at
the time of this or any prior distribution, exceeded the amount (currently five thousand
dollars ($5,000)) permitted to be cashed out without consent under Section 417(e) of the Code,
payment of such benefit shall be in the form of a single sum. In the event the Actuarial
Equivalent of the Qualified Preretirement Survivor Annuity exceeds the amount permitted to be
cashed out without consent under Section 417(e) of the Code but does not exceed ten thousand
dollars ($10,000), at the option of the surviving Spouse, payment of such benefit may be in
the form of a single sum. Any such one-sum payment shall be in lieu of the benefits otherwise
payable hereunder.
	 
	6.05	 	Time of Payment. Payments to the surviving Spouse of the Qualified Preretirement
Survivor Annuity described in Section 6.02 shall commence on the first day of the month in
which the Participant would have attained his Earliest Retirement Age under the Plan.
Provided, however, that at the election of the surviving Spouse, commencement of payments may
be postponed to a date which is no later than the first day of the month in which the
Participant would have attained his Normal Retirement Age under the Plan. If payment to the
surviving Spouse of a Qualified Preretirement Survivor Annuity begins at a date later than the
first day of the month in which the Participant would have attained earliest Retirement Age
under the Plan, such payment shall be determined as if the Participant separated from service
on his or her date of death (or date of actual separation from service, if earlier); survived
to the date the surviving spouse benefit is to commence; retired with a Qualified Joint and
Survivor Annually at such date; and died the next day.




42









 











ARTICLE VII




Limitations on Benefits





	7.01	 	Limitation on Annual Benefit. This Section is effective October 1, 2007.






	 	(a)	 	Notwithstanding any other provision of the Plan, the annual benefit to which a
Participant is entitled under the Plan shall not, in any limitation year, be in an
amount which would exceed the applicable limitations under Code section 415 and
regulations thereof, including, effective October 1, 2007, the final regulations
thereunder issued April 5, 2007. If the benefit payable under the Plan would (but for
this Section) exceed the limitations of Code section 415 by reason of a benefit payable
under another defined benefit plan aggregated with this Plan under Code section 415(f),
the benefit under this Plan shall be reduced only after all reductions have been made
under such other plan. As of January 1 of each calendar year commencing on or after
January 1, 2002, the dollar limitation as determined by the Commissioner of Internal
Revenue for that calendar year shall become effective as the maximum permissible dollar
amount of benefit payable under the Plan during the limitation year ending within that
calendar year.
	 
	 	 	 	The application of the provisions of this article shall not cause the maximum
permissible benefit for any Participant to be less than the Participant’s accrued
benefit under all the defined benefit plans of the Employer or a predecessor
employer as of the end of the last limitation year beginning before July 1, 2007
under provisions of the plans that were both adopted and in effect before April 5,
2007. The preceding sentence applies only if the provisions of such defined benefit
plans that were both adopted and in effect before April 5, 2007 satisfied the
applicable requirements of statutory provisions, regulations, and other published
guidance relating to Code section 415 in effect as of the end of the last limitation
year beginning before July 1, 2007, as described in Section 1.415(a)-1(g)(4) of the
Income Tax Regulations.
	 
	 	(b)	 	The increased limitations of Code section 415(b) effective on and after January
1, 2002 shall apply solely to employees participating in the Plan who have one Hour of
Service on or after January 1, 2002.
	 
	 	(c)	 	The term “limitation year” is the 12-month period used for application of the
limitations under Code section 415 and, unless a different 12-month period has been
elected by the Employer in accordance with rules or regulations issued by the Internal
Revenue Service or the Department of Labor, shall be the Plan Year.
	 
	 	(d)	 	For purposes of applying the adjustments required under Code section 415(b)(2),
the “applicable interest rate” and “applicable mortality table” shall be determined as
provided in Section 1.06 and 1.07.




43









 












	 	(e)	 	For the limitation years beginning in 2004 and 2005, if the annual retirement
benefit is payable in a form subject to the requirements of Code Section 417(e),
Actuarial Equivalence shall be based on either the Plan’s actuarial factors or five and
one-half percent (5.5%) interest and the Applicable Mortality Table, whichever factors
produce the higher life annuity.
	 
	 	(f)	 	For purposes of this Section compensation shall mean Section 415 Compensation.




44









 











ARTICLE VIII




Top-Heavy Rules





	8.01	 	Top-Heavy Determination.






	 	(a)	 	The provisions of this Article shall apply solely in the event that this Plan
ever becomes Top-Heavy, as defined herein.
	 
	 	(b)	 	For the purposes of this Article, the following definitions shall be used:






	 	(1)	 	Aggregation Group means






	 	(A)	 	Each plan of the Employer in which a Key Employee
is a Participant (in the Plan Year containing the Determination Date or
in any of the four preceding Plan Years), and
	 
	 	(B)	 	Each other plan of the Employer which enables any
plan described in subsection (A) during the applicable period to meet
the requirements of Sections 401(a)(4) or 410 of the Code.






	 	 	 	The Employer may treat any plan not described above as being part of such
aggregation group if such group would continue to meet the requirements of
Sections 401(a)(4) and 410 of the Code with such plan being taken into
account.
	 
	 	(2)	 	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.
	 
	 	(3)	 	Key Employee means an Employee or a former Employee
(including any deceased employee), if, in the Plan Year containing the
Determination Date or, effective for Determination Dates prior to October 1,
2002, in any of the four preceding Plan Years, such Employee or former Employee
is or was






	 	(A)	 	An officer of the Employer whose annual
Compensation for any such Plan Year exceeds $130,000 as adjusted under
Code Section 416(i)(1) for Plan Years beginning after December 31, 2002
(effective for Determination Dates prior to October 1, 2002, an officer
of the Employer whose annual compensation for any such Plan Year
exceeds fifty percent (50%) of the amount in effect under Section
415(b)(1)(A) of the Code)) provided however, that no more than fifty
(50) Employees (or, if less, the greater of three




45









 












	 	 	 	(3) Employees or ten percent (10%) of the Employees) shall be treated
as officers. For purposes of determining the number of officers taken
into account, employees described in Section 414(q)(8) (Section
414(q)(5), effective January 1, 2002) of the Code shall be excluded;
	 
	 	(B)	 	A five percent (5%) owner of the Employer, or a
one percent (1%) owner (within the meaning of Sections 416(i)(1)(B) and
(C) of the Code) of the Employer whose annual Compensation from the
Employer for such Plan Year exceeds $150,000; or
	 
	 	(C)	 	Solely for Determination Dates prior to October
1, 2002, one (1) of the ten (10) Employees owning (or considered as
owning within the meaning of Section 318 of the Code) both the largest
interest in the Employer and more than a one-half of one percent (0.5%)
interest therein and whose annual Compensation for any such Plan Year
equals or exceeds the amount in effect under Section 415(c)(1)(A) of
the Code; provided, however, if two Employees have the same interest in
the Employer, the Employee with the greater annual Compensation for
such Plan Year shall be treated as having the larger interest.






	 	 	 	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.
	 
	 	(4)	 	Non-Key Employee means any Employee who is not a Key
Employee.
	 
	 	(5)	 	Top-Heavy means that with respect to any Plan Year, the
sum of the present value of the cumulative Accrued Benefits (under this Plan
and such other plans as provided in subsection (b)(1) above) for Key Employees
as of any Determination Date exceeds sixty percent (60%) of the sum of the
present value of the cumulative Accrued Benefits for all Employees. In making
this calculation as of a Determination Date,






	 	(A)	 	The present value of an Accrued Benefit shall
be determined as of the most recent valuation date (which for purposes
hereof shall be the same date as is used for computing Plan costs for
minimum funding) occurring within the Plan Year which includes the
Determination Date.
	 
	 	(B)	 	The present value of the Accrued Benefit of any
Employee or former Employee shall be increased by the aggregate
distribution made during the one (1) year period (effective for
Determination




46









 












	 	 	 	Dates prior to October 1, 2002, the five (5) year period) ending on
the Determination Date with respect to such Employee or former
Employee. Effective for Determination Dates on and after October 1,
2002, 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.
Also effective for Determination Dates on and after October 1, 2002,
in the case of a distribution made for a reason other than separation
from service, termination of employment, death, or disability, this
provision shall be applied by substituting “5-year period” for
“1-year period.”
	 
	 	(C)	 	The present value of the Accrued Benefit of






	 	(i)	 	Any Non-Key Employee who was a
Key Employee for any prior Plan Year, and
	 
	 	(ii)	 	Any former Employee who performed
no service for the employer maintaining the Plan during the five
(5) year period ending on the Determination Date






	 	 	 	shall be ignored.
	 
	 	(D)	 	If the present value of any Accrued Benefit
under the Plan includes any amount attributable to any rollovers to or
from the Plan, such value shall be adjusted, as required by Section
416(g)(4)(A) of the Code.
	 
	 	(E)	 	A Participant’s Accrued Benefit in a defined
benefit plan will be determined under a uniform accrual method which
applies in all defined benefit plans maintained by the Employer or,
where there is no such method, as if such benefit accrued not more
rapidly than the slowest rate of accrual permitted under the fractional
rule of Section 411(b)(1)(c) of the Code.
	 
	 	(F)	 	Effective for Determination Dates on and after
October 1, 2002, the Accrued Benefits of any individual who has not
performed services for the Employer during the 1-year period ending on
the Determination Date shall not be taken into account.






	 	 	 	Notwithstanding the foregoing, this Plan shall be Top-Heavy if, as of any
Determination Date, it is required by Section 416(g) of the Code to be
included in an Aggregation Group which is determined to be a Top-Heavy
Group. If an Aggregation Group includes two or more defined benefit plans,
the actuarial assumptions set forth in this Section must be used with
respect to all such plans and must be specified in such plans.




47









 












	 	(6)	 	Top-Heavy Group means any Aggregation Group if, as of
the Determination Date, the sum of






	 	(A)	 	The present value of the cumulative accrued
benefits for all Key Employees under all defined benefit plans in such
Aggregation Group, and
	 
	 	(B)	 	The aggregate of the accounts of all Key
Employees under all defined contribution plans in such Aggregation
Group






	 	 	 	exceeds sixty percent (60%) of a similar sum determined for all Key
Employees and Non-Key Employees.






	8.02	 	Vesting.






	 	(a)	 	For any Plan Year in which the Plan is Top-Heavy, the Vested Percentage
applicable to the Accrued Benefit of an Employee who has at least one (1) Hour of
Service after the Plan became Top-Heavy shall not be less than the percentage shown on
the following table:





	 	 	 	 	 
	Years of	 	Vested
	Vesting Service	 	Percentage
	less than 2
	 	 	0	%
	2 but less than 3
	 	 	20	%
	3 but less than 4
	 	 	40	%
	4 but less than 5
	 	 	60	%
	5 but less than 6
	 	 	80	%
	6 or more
	 	 	100	%







	 	(b)	 	In the event the Plan ceases to be Top-Heavy for a Plan Year, the vesting
schedule in effect immediately prior to the Plan Year in which the Plan became
Top-Heavy shall again become applicable as an amendment to the Plan.
	 
	 	(c)	 	For any Plan Year in which the Plan is not Top-Heavy which follows one or more
Plan Years for which the Plan has been Top-Heavy, the vesting schedule in effect
immediately prior to the Plan Year the Plan became Top-Heavy shall again become
applicable as an amendment to the Plan; thus, each Participant who has had his Vesting
Percentage computed under subsection (a) and who has completed at least three (3) Years
of Service shall have his Vesting Percentage computed in accordance with subsection (a)
for such Plan Year and any subsequent Plan Year in which the Plan is no longer
Top-Heavy. For each Participant who has had his Vesting Percentage computed under
subsection (a), but who has completed fewer than three (3) Years of Service (i) the
Vesting




48









 












	 	 	 	Percentage of his Accrued Benefit
(accrued as of the date the Plan is no longer Top-Heavy) shall be computed in
accordance with the vesting schedule in subsection (a) for such Plan year and any
subsequent Plan Year and (ii) the Vesting Percentage of his Accrued Benefit (accrued
after the date the Plan is no longer Top-Heavy) shall not be less than the Vesting
Percentage determined as of the last day of the last Plan Year in which the Plan was
Top-Heavy.






	8.03	 	Minimum Benefits.






	 	(a)	 	For any Plan Year in which the Plan is Top-Heavy and in which a Participant
also participates in another qualified plan maintained by the Employer, the Top-Heavy
minimum benefit required under this Plan will be provided under such other plan. For
Employees who participate only in this Plan, the Accrued Benefit for a year in which
the Plan is Top-Heavy, expressed as a life annuity (with no ancillary benefits)
commencing at his Normal Retirement Date, shall be an amount which is not less than the
product of






	 	(1)	 	Two percent (2%),
	 
	 	(2)	 	The number of Plan Years beginning on or after January 1, 1984
during which the Plan was Top-Heavy and with respect to which the Participant
accrued a year of Vesting Service, and
	 
	 	(3)	 	The Participant’s average annual Compensation for the period of
five (5) consecutive Plan Years in each of which the Participant was an Active
Participant and for which the Participant’s aggregate annual Compensation was
the greatest. If the Participant did not receive Compensation in five (5) such
Plan Years, his annual Compensation shall be averaged over his longest
continuous period of participation. In making the computations under this
subparagraph, annual Compensation for Plan Years which are not included in the
Plan Years taken into account under subsection (2) above shall be ignored. For
this purpose, annual Compensation means compensation within the meaning of
Section 415(c)(3) of the Code. However, for this purpose, Compensation shall
not include any amount contributed by the Employer pursuant to a salary
reduction agreement and which is not includible in the gross income of the
Employee under Section 125, 402(e)(3), 402(h) or 403(b) or, effective for years
beginning after December 31, 1997, Section 132(f). 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.






	 	 	 	Effective for Determination Dates on and after October 1, 2002, for purposes of
satisfying the minimum benefit requirements of section 416(c)(1) of the Code and the
Plan, in determining years of service with the employer, any service with the
employer shall be disregarded to the extent that such service occurs during a Plan




49









 






	 	 	 	Year when the plan benefits (within the meaning of section 410(b) of the Code) no
key employee or former key employee.






	 	(b)	 	A Participant’s minimum Benefit payable under this Section shall not exceed
twenty percent (20%) of the amount described in subsection (a)(3).
	 
	 	(c)	 	Only Non-Key Employees who have completed one thousand (1,000) Hours of Service
shall receive the benefits described in this Section.
	 
	 	(d)	 	Notwithstanding subsection (a), and to the extent permitted by applicable law
and regulations, no benefit shall be accrued pursuant to this Section for a Plan Year
with respect to Participant who is a participant in a defined contribution plan
sponsored by an Employer if such Participant receives under such defined contribution
plan (for the plan year ending with or within the Plan Year of this Plan) a
contribution that is equal to or greater than five percent (5%) of such Participant’s
Section 415 Compensation for such Plan Year. If such contribution is less than five
percent (5%) of the Participant’s Section 415 Compensation for the Plan Year, the
minimum Benefit provided in subsection (a) shall be offset by any Employer contribution
provided under the defined contribution plan expressed as an actuarially equivalent
annual benefit in accordance with regulations interpreting Section 416(f) of the Code.










50









 











ARTICLE IX




Plan Administration





	9.01	 	Plan Administrator. The Board shall appoint a Plan Committee (“Committee”) which
shall be the named fiduciary having the authority to control and manage the operation and
administration of the Plan. The Committee shall consist of not less than three (3) persons.
If the Board does not appoint a Committee, the Board shall act as the Committee.
	 
	9.02	 	General Powers, Rights and Duties. Except as otherwise specifically provided and in
addition to the powers, rights and duties specifically given to the Plan Administrator
elsewhere in the Plan and the Trust Agreement or by direct, written delegation from the
Company, the Plan Administrator shall have the power and the duty to take all action and to
make all decisions necessary or proper to carry out the Plan. The powers and duties of the
Plan Administrator shall include the following:






	 	(a)	 	To, in its discretion, interpret all Plan provisions and to determine all
questions arising under the Plan, including the power to determine the eligibility of
Employees, Participants and all other persons to participate in the Plan or to receive
benefits under the Plan and to determine the amount of benefits payable under the Plan
to any person and to remedy ambiguities, inconsistencies or omissions;
	 
	 	(b)	 	To adopt such rules of procedure and regulations and prescribe the use of such
forms as in its opinion may be necessary for the proper and efficient administration of
the Plan and as are consistent with the Plan and Trust Agreement;
	 
	 	(c)	 	To enforce the Plan in accordance with the terms of the Plan and the Trust
Agreement and the rules and regulations adopted pursuant to (b) above;
	 
	 	(d)	 	To direct the Trustee in writing to make payments from the Trust Fund to
Participants who qualify for such payments hereunder. Such written notice shall
include such information as may be required for payment of benefits;
	 
	 	(e)	 	To furnish the Participating Employers with such information as may be required
by them for tax or other purposes in connection with the Plan;
	 
	 	(f)	 	To employ agents, attorneys, accountants, actuaries or other persons (who also
may be employed by an Employer) and to allocate or delegate to them such powers, rights
and duties as the Plan Administrator has and may consider necessary or advisable to
properly carry out administration of the Plan or compliance with the requirements of
ERISA, provided that such allocation or




51









 






	 	 	 	delegation and the acceptance thereof by such agents, attorneys or other persons
shall be in writing;






	 	(g)	 	To exercise such authority as it deems appropriate in order to comply with the
reporting and disclosure requirements of ERISA and regulations issued thereunder;
	 
	 	(h)	 	To provide a full and fair review to any Participant whose claim for benefits
has been denied in whole or in part; and
	 
	 	(i)	 	To establish and carry out a funding policy and method consistent with the
objectives of the Plan and ERISA, pursuant to which the Company shall determine the
Plan’s liquidity and financial needs and communicate them to the Trustees or other
fiduciaries who are charged with determining investment policy.






	9.03	 	Manner of Action. During a period in which two (2) or more Committee members are
acting, the following provisions apply where the context admits:






	 	(a)	 	The Committee shall select a Chairman and may select a Secretary (who may, but
need not, be a member of the Committee).
	 
	 	(b)	 	A Committee member may delegate any or all of his rights, powers, and duties to
any other member provided such delegation is in writing and is consented to by such
other Committee member.
	 
	 	(c)	 	The Committee members may act by meeting and may execute any document by
signing one document or concurrent documents.
	 
	 	(d)	 	A majority of the members of the Committee at the time in office shall
constitute a quorum for the transaction of business at any meeting. Any determination
or action of a Committee may be made or taken by a majority of the members present at
any meeting or without a meeting by a resolution or written memorandum concurred in by
a majority of the members then in office.
	 
	 	(e)	 	If there is an even division of opinion among the Committee members as to a
matter, a disinterested party selected by the Committee shall decide the matter and his
decision shall control.
	 
	 	(f)	 	Except as otherwise provided by law, no member of the Committee shall be liable
or responsible for an act or omission of the other Committee members in which the
former has not concurred.
	 
	 	(g)	 	The certificate of the secretary of the Committee or of a majority of the
Committee members that the Committee has taken or authorized any action shall be
conclusive in favor of any person relying on the certificate.





52









 






	9.04	 	Interested Committee Member. A member of the Committee who is also a Participant in
the Plan may not decide or determine any issue concerning the amount of his benefit or its
distribution to him unless such decision or determination could be made by him under the Plan
if he were not serving on the Committee.
	 
	9.05	 	Resignation or Removal of Committee Members. A member of the Committee may be
removed by the Board at any time by thirty (30) days prior written notice to him and the other
members of the Committee. A member of the Committee may resign at any time by giving thirty
(30) days written notice to the Board and the other members of the Committee. The Board may
fill any vacancy in the membership of the Committee; provided, however, that if a vacancy
reduces the membership of the Committee to less than three (3), such vacancy shall be filled
as soon as practicable. The Board shall give prompt written notice thereof to the members of
the Committee. Until any such vacancy is filled, the remaining members may exercise all of
the powers, rights and duties conferred on the Committee.
	 
	9.06	 	Nondiscrimination. The Plan Administrator shall not take action nor direct the
Trustee to take any action with respect to any of the benefits provided hereunder which would
discriminate in favor of highly compensated employees or which would benefit certain
Participants at the expense of others. There shall similarly be no discrimination between
similarly-situated Participants. This provision shall not limit the power of the Employer to
act in its capacity as settlor with respect to the Plan.
	 
	9.07	 	Delegation and Reliance. To the extent permitted by law, the Plan Administrator and
any person to whom it may delegate any duty or power in connection with administering the
Plan, the Employer, and the officers and directors thereof, shall be entitled to rely
conclusively upon, and shall be fully protected in any action taken in good faith in the
reliance upon any actuary, counsel, accountant or other person selected by the Plan
Administrator. Further, to the extent permitted by law, neither the Plan Administrator, nor
any members thereof, nor any Employer, nor the officers or directors thereof, shall be liable
for any neglect, omission or wrongdoing of a Trustee, insurance company, investment manager,
or any other person or fiduciary.
	 
	9.08	 	Claims Procedure. The claims procedure hereunder shall be as provided herein:






	 	(a)	 	Claim. A Participant or Beneficiary or other person who believes that
he is being denied a benefit to which he is entitled (hereinafter referred to as
“Claimant”) may file a written request for such benefit with the Plan Administrator
setting forth his claim.
	 
	 	(b)	 	Response to Claim. The Plan Administrator shall respond within ninety
(90) days of receipt of the claim. However, upon written notification to the Claimant,
the response period may be extended for an additional ninety (90) days for reasonable
cause. If the claim is denied in whole or in part, the Claimant shall be provided with
a written opinion using nontechnical language setting forth:




53









 












	 	(1)	 	The specific reason or reasons for denial;
	 
	 	(2)	 	The specific references to 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 such information is necessary;
	 
	 	(4)	 	Appropriate information as to the steps to be taken if the
Claimant wishes to submit the claim for review;
	 
	 	(5)	 	The time limits for requesting a review; and
	 
	 	(6)	 	A statement of the Claimant’s right to bring a civil action
under ERISA Section 502(a) following the adverse benefit determination on
review.






	 	(c)	 	Request for Review. Within sixty (60) days after the receipt by the
Claimant of the written opinion described above, the Claimant may request in writing
that the Plan Administrator review the determination.
	 
	 	 	 	The Claimant or his duly authorized representative may review the pertinent
documents and submit written comments, documents, records, and other information for
consideration by the Plan Administrator. The Claimant shall be provided, upon
request and free of charge, reasonable access to and copies of, all documents,
records, and other information relevant to the Claimant’s claim for benefits. If
the Claimant does not request a review of the determination within such sixty (60)
day period, he shall be barred from challenging the determination.
	 
	 	(d)	 	Review and Decision. The Plan Administrator shall review the
determination within sixty (60) days after receipt of a Claimant’s request for review;
provided, however, that for reasonable cause such period may be extended to no more
than one hundred twenty (120) days. In the case of a committee that meets at least on
a regular quarterly basis, the committee shall make a benefit determination no later
than the meeting date that immediately follows the Plan’s receipt of the request for a
review, unless the request for review is filed within 30 days before the meeting date.
In such case, the benefit determination may be made no later than the date of the
second meeting following the Plan’s receipt of the request for review. After
considering all materials presented by the Claimant, the Plan Administrator will render
a written opinion, written in a manner calculated to be understood by the Claimant
setting forth the specific reasons for the decision and containing specific references
to the pertinent Plan provisions on which the decision is based. If the claim is
denied in whole or in part, the claimant shall be provided with a written opinion using
nontechnical language setting forth:






	 	(1)	 	The specific reason or reasons for denial;





54









 






	 	(2)	 	The specific references to pertinent Plan provisions on which
the denial is based;
	 
	 	(3)	 	A statement that the Claimant is entitled to receive, upon
request and free of charge, reasonable access to, and copies of, all documents,
records, and other information relevant to the claimant’s claim for benefits;
	 
	 	(4)	 	A statement describing any voluntary appeal procedures offered
by the Plan and the claimant’s right to obtain the information about such
procedures; and
	 
	 	(5)	 	A statement of the Claimant’s right to bring an action under
ERISA Section 502(a).






	9.09	 	Plan Administrator’s Decision Final. Subject to applicable law, any interpretation
of the provisions of the Plan and any decision on any matter within the discretion of the Plan
Administrator made by the Plan Administrator in good faith shall be binding on all persons.
Any misstatement or other mistake of fact shall be corrected when it becomes known and the
Plan Administrator shall make such adjustment on account thereof as it considers equitable and
practicable.
	 
	9.10	 	Standard of Review. The Plan Administrator shall perform its duties as the Plan
Administrator and in its sole discretion shall determine appropriate courses of action in
light of the reason and purpose for which this Plan is established and maintained. In
particular, the Plan Administrator shall interpret all Plan provisions, and make all
determinations as to whether any Participant or Beneficiary is entitled to receive any benefit
under the terms of this Plan which interpretation shall be made by the Plan Administrator in
its sole discretion. Any construction of the terms of the Plan that is adopted by the Plan
Administrator and for which there is a rational basis shall be final and legally binding on
all parties.
	 
	 	 	Any interpretation of the Plan or other action of the Plan Administrator shall be subject to
review only if such interpretation or other action is without rational basis. Any review of
a final decision or action of the Plan Administrator shall be based only on such evidence
presented to or considered by the Plan Administrator at the time it made the decision that
is the subject of review. If any Participating Employer and/or any Eligible Employee who
performs services for a Participating Employer that is or may be compensated for in part by
benefits payable pursuant to this Plan, such an individual shall be treated as agreeing with
and consenting to any decision that the Plan Administrator makes in its sole discretion and
further agrees to the limited standard of review described by this Section 9.10 by the
acceptance of such benefits.
	 
	9.11	 	Information Required by Plan Administrator. Each person entitled to benefits under
the Plan must file his most recent post office address with the Plan Administrator. Any




55









 






	 	 	communication, statement or notice addressed to any such person at the last post office
address filed with the Plan Administrator will be binding upon such person for all purposes
of the Plan. Each person entitled to benefits under the Plan also shall furnish the Plan
Administrator with such documents or information as the Plan Administrator considers
necessary or desirable for the purpose of administering the Plan. The Employer shall
furnish the Plan Administrator with such data and information as the Plan Administrator may
deem necessary or desirable in order to administer the Plan. The records of any Employer
with respect to periods of employment, termination of employment and the reason therefor,
leave of absence, re-employment and earnings will be conclusive on all persons unless
determined by the Plan Administrator to be incorrect.






	9.12	 	Expenses of the Plan. Administrative expenses of the Plan, such as actuarial,
consulting and legal services, shall be paid directly by the Trust Fund to the extent such
payments are permitted by law. Such expenses may, in the discretion of the Employer, be paid
directly by the Employer.
	 
	9.13	 	Freedom from Liability. The Plan Administrator shall be entitled to rely upon
information furnished by the Company and upon tables, valuation, certificates, opinions and
reports furnished by any trustee, accountant, actuary, insurer or legal counsel in connection
with any action or determination. To the extent permitted by law, the Company shall
indemnify, hold harmless and defend the Plan Administrator against any liability or loss
(including any sum paid in settlement of a claim) sustained as a result of any act or omission
in their administrative capacities, if such act or omission does not involve willful
misconduct. Such indemnification shall include attorneys’ fees and other costs and expenses
reasonably incurred in defense of any action brought against the Plan Administrator and shall
apply to any persons who are or were directors, officers or Employees of any Employer who may
be subjected to liability by reason of an act or omission occurring in good faith in the
operation and administration of the Plan or Trust or in the investment of the assets of the
Trust.




56









 











ARTICLE X




Amendment or Termination





	10.01	 	Amendment or Modification of the Plan. Except as provided herein, the Board
reserves the right to amend or terminate this Plan at any time and in any manner. The Board
may delegate this authority to any officer(s) of the Company. Any action by the Board shall
be evidenced by a valid resolution. Any action by any officer(s) shall be evidenced by a
valid officer’s certificate. The resolutions and officer’s certificates shall be attached to
this Plan and considered a part hereof. No modification or amendment shall:






	 	(a)	 	Cause or permit any portion of the funds or assets of the Plan to become the
property of the Employer prior to the satisfaction of all liabilities of the Plan;
	 
	 	(b)	 	Increase the duties or responsibilities of the Trustee without its written
consent;
	 
	 	(c)	 	Be effective to the extent that it may decrease the Accrued Benefit (as
provided in Code Section 411(d)(6)) of any Participant, except as permitted pursuant to
Section 412(c)(8) of the Code; or
	 
	 	(d)	 	Become effective until set forth in a revised participation agreement executed
by the Company if such amendment is made by any other Employer.






	 	 	If the Plan’s vesting schedule is changed as a result of an amendment, each Participant who
has completed at least three (3) Years of Service may elect to continue to have his vested
percentage computed in accordance with the vesting schedule in effect for that Participant
prior to the amendment. This election may be made no earlier than the date the amendment is
adopted and no later than the latest of the date that is sixty (60) days after the date:
(i) the amendment is adopted; (ii) the amendment becomes effective; or (iii) the Participant
is issued a written notice of the amendment by the Employer or Plan Administrator.
	 
	 	 	For each Participant who has completed fewer than three (3) Years of Service (i) the Vesting
Percentage of his Accrued Benefit (accrued on and after the date of the Plan amendment)
shall be computed in accordance with the vesting schedule as amended and (ii) the Vesting
Percentage of his Accrued Benefit (accrued before the effective date of the amendment) shall
not be less than the Vesting Percentage determined prior to the amendment.
	 
	10.02	 	Termination of the Plan. Although the Company intends to continue the Plan as a
permanent retirement program for the benefit of its Participants, the making of contributions
and the continuation of the Plan are not assumed by the Employer as a contractual obligation.
The Employer expressly does not guarantee the payment of any benefit or amount which may
become due under the Plan to any Participant or




57









 






	 	 	Beneficiary. The Employer reserves the right at any time to discontinue its contributions
or to terminate the Plan. The Plan may also be terminated as a result of a determination by
the Pension Benefit Guaranty Corporation (PBGC), or by a decree by an appropriate court of
law.






	10.03	 	Distribution upon Termination of the Plan. Upon termination or partial termination
of the Plan by an Employer, each Participant’s Accrued Benefit, to the extent funded, shall be
nonforfeitable, and the plan assets held by the Trustee and/or insurance company or companies
for that Employer (or in the case of partial termination, for that particular group of
Participants) shall be allocated in accordance with Section 4044 of ERISA in order to provide
pensions for the affected Participants and Beneficiaries.
	 
	10.04	 	Residual Assets. To the extent permitted by law, any residual assets of the Plan
shall be distributed to the Employer if all liabilities of the Plan to Participants and
Beneficiaries have been satisfied. Such assets shall be allocated among Participating
Employers in such proportions as the Company shall determine. If this Section of the Plan is
amended and the Plan previously did not contain a provision for the reversion of residual
assets to the Employer upon Plan termination, this Section shall first become effective at the
end of the fifth (5th) calendar year following the date of the adoption of this Restatement.
	 
	10.05	 	Restriction on Distribution of Benefits.






	 	(a)	 	The provisions of Treasury Regulation Section 1.401(a)(4)-5(b) shall apply.
In addition, annual payments to an employee who is among the twenty-five (25) highly
compensated employees or highly compensated former employees with the greatest
Compensation in the current or any prior year shall not exceed an amount equal to the
payments that would be made on behalf of the employee under:






	 	(1)	 	A straight life annuity that is the actuarial equivalent of the
employee’s Accrued Benefit and the other benefits to which the employee is
entitled under the Plan (other than any Social Security Supplement); and
	 
	 	(2)	 	The amount of the payments that the employee is entitled to
receive under any Social Security supplement.






	 	(b)	 	The restrictions of Subsection (a) do not apply if any one of the following is
satisfied:






	 	(1)	 	After payment to such employee of all benefits (as described in
Treasury Regulation Section 1.401(a)(4)-5(b)(3)(iii)), the value of Plan assets
equals or exceeds one hundred ten percent (110%) of the value of current
liabilities, as defined in Section 412(l)(7);
	 
	 	(2)	 	The value of the benefits (as described in Treasury Regulation
Section 1.401(a)(4)-5(b)(3)(iii)) for such employee is less than one percent
(1%) of the value of current liabilities before distribution; or




58









 












	 	(3)	 	The value of the benefits (as described in Treasury Regulation
Section 1.401(a)(4)-5(b)(3)(iii)) for such employee does not exceed the amount
described in Section 411(a)(11)(A) of the Code; or
	 
	 	(4)	 	The Plan terminates and the benefit received by each
Participant is nondiscriminatory under Section 401(a)(4) of the Code.






	 	 	The above provisions shall apply only to the extent required by Section 401(a)(4) of the
Code and the regulations thereunder.
	 
	10.06	 	Repayment of Restricted Amounts. Notwithstanding the above, the Plan Administrator,
to the extent permitted by law and this Plan, may authorize payment of a Participant’s entire
Benefit in the form of a lump sum, provided that:






	 	(a)	 	The Participant enters into an agreement with the Trustee providing for
repayment of the amount which would be restricted under Section 10.05 in the event
there is a termination of the Plan during the applicable period, and
	 
	 	(b)	 	The Participant guarantees such repayment by depositing in escrow with an
acceptable depository either:






	 	(1)	 	Property having a fair market value equal to one hundred
twenty-five percent (125%) of the amount which would have to be repaid if the
Plan had terminated on the date the lump sum was paid, or
	 
	 	(2)	 	A bond equal to at least one hundred percent (100%) of such
amount, which bond must be issued by an insurance company, bonding company or
other surety approved by the U.S. Treasury Department as an acceptable surety
for federal bonds, or
	 
	 	(3)	 	A bank letter of credit in an amount equal to at least one
hundred percent (100%) of such amount.






	 	 	 	The Participant must further agree that if the fair market value of deposited
property (pursuant to (A) above) declines to less than one hundred ten percent
(110%) of the amount to be repaid, he or she shall deliver additional property to
the depository such that the total value of all property so deposited is increased
to one hundred twenty-five percent (125%) of the amount to be repaid.
	 
	 	 	 	Property or assets shall be held in the depository until the Plan Administrator
certifies to the depository, surety or bank that no obligation of repayment exists.
Provided, however, that property in the escrow account may be withdrawn by the
Participant to the extent it exceeds one hundred twenty-five percent (125%) of the
amount to be repaid. Likewise, a bond or letter of credit may be reduced to the
extent it exceeds one hundred percent (100%) of such amount. The Participant




59









 






	 	 	 	may withdraw earnings on the property in escrow provided the value of the property
in escrow does not fall below the required level. The amount to be repaid may be
adjusted to take into account the decrease in the restriction as the applicable ten
(10) year period elapses.




60









 











ARTICLE XI




Funding of the Plan





	11.01	 	Establishment of Trust. For the purpose of funding the Benefits provided for
herein, the Company has established a Trust Fund. The Employer shall contribute funds into
the Trust Fund for the purpose of distributing to Participants and their Beneficiaries the
corpus and income of the fund accumulated by the Trust in accordance with the Plan. The
Trustee shall receive, hold in trust and disburse the assets of the Trust Fund in accordance
with the provisions of the Plan and Trust. The Plan Administrator shall direct the Trustee in
writing to make payments to or on behalf of Participants entitled to Benefits in accordance
with this Plan and the Trust Agreement.
	 
	11.02	 	Employer Contributions. The Employer shall make such contributions to the Trust
Fund as are required to keep the Plan qualified under Section 401 of the Code and any other
relevant section of the Code or any successors thereto, subject to its right to amend or
discontinue the Plan and discontinue contributions. All Benefits will be paid from the Trust
and neither the Employer nor the Trustee shall be liable to Participants or their
Beneficiaries if the Trust corpus shall be insufficient to provide for the payment of
Benefits. Except as provided by ERISA, the Employer shall have no liability with respect to
the administration of the Trust or of the funds, securities or other assets paid over to the
Trustee, and each Participant or other Beneficiary shall look solely to the Trust Fund or the
Pension Benefit Guaranty Corporation (PBGC) for any payments of Benefits under the Plan.
	 
	 	 	One Employer that has adopted this Plan for the benefit of its employees may make
contributions hereto for the benefit of the employees of another Employer that has adopted
this Plan, to the extent that the Employer making such contribution would be entitled to
claim a federal income tax deduction for such contribution.
	 
	11.03	 	Funding Standards. The Employer intends to contribute, but does not guarantee to do
so, funds hereunder in amounts no less than the minimum required by the funding standards of
ERISA. The Employer may from time to time contribute amounts greater than such minimum. A
funding standard account shall be established and maintained so that it may be determined if
the Employer has complied with minimum funding standards.
	 
	11.04	 	Changes in Funding Medium or Method. The Company reserves the right to change the
medium and method of funding at any time at its discretion and without the consent of any
person or organization, subject to any applicable requirements of ERISA. Subject to the
specific provisions of the Trust Agreement, the Company reserves the right to amend the Trust
Agreement and to remove the current Trustee and appoint a successor Trustee as it may deem
appropriate.
	 
	11.05	 	Purchase of Annuities. If pursuant to the Trust Agreement the Trustee is directed
by the Plan Administrator to purchase restricted non-transferable annuities from an insurance




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	 	 	company to provide the benefits of the Participants, any dividends or other credits
generated under any such annuity contract shall be applied to reduce the amount of future
contributions by the Employer.






	11.06	 	No Diversion. No part of the corpus or income of the Trust Fund shall be used for,
or diverted to, purposes other than for the exclusive benefit of Participants or their
Beneficiaries, at any time prior to the satisfaction of all liabilities with respect to
Participants and their Beneficiaries under the Plan and Trust. The Company intends that the
Plan shall meet the requirements of the Code pertaining to the qualification of employee
pension plans. Under no circumstances shall the Employer have any vested right, title or
interest in any assets in the Trust Fund nor shall any such assets revert to the Employer or
inure to its benefit in any way prior to satisfaction of all liabilities of the Plan. Any
Participant with a vested Benefit hereunder shall only be entitled to Benefits to the extent
funded, except as provided by ERISA.
	 
	11.07	 	Treatment of Forfeitures. Any forfeitures arising hereunder shall be used to reduce
future Employer contributions. Such forfeitures shall not be applied to increase the Benefits
any Participant would otherwise receive under the Plan.
	 
	11.08	 	Return of Contributions. All Employer contributions are made conditioned upon their
deductibility for federal income tax purposes under Section 404 of the Code and upon
continuing qualification of the Plan under Section 401 of the Code. Amounts contributed by
the Employer shall be returned to the Employer under the following conditions:






	 	(a)	 	If a contribution was made by an Employer by a mistake of fact, the excess of
the amount of such contribution over the amount that would have been contributed had
there been no mistake of fact shall be returned to the Employer within one year after
the payment of the contribution.
	 
	 	(b)	 	If an Employer makes a contribution which is not deductible under Section 404
of the Code, such contribution (but only to the extent disallowed) shall be returned to
the Employer within one year after the disallowance of the deduction, or in the case of
de minimis nondeductible contribution as described in Rev. Proc. 90-49, returned within
one year from the date of actuarial certification.
	 
	 	(c)	 	If an Employer makes a contribution which is conditioned on initial
qualification of the Plan under the Code and if the Plan does not so qualify, then such
contribution shall be returned to the Employer within one year after the date of denial
of qualification of the Plan provided that an application for determination is made by
the time prescribed by law for filing the Employer’s federal income tax return for the
taxable year in which the Plan was adopted or such later date as the Secretary of the
Treasury may prescribe.






	11.09	 	Litigation by Participants or Beneficiaries. If a Participant or other person
brings a legal action against the Trustee, one or more Employers, and/or the Committee (or any
member or members thereof), and such action results adversely to that person, or if a




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	 	 	legal action
arises because of conflicting claims to a Participant’s or other person’s benefits, the
costs borne by the Trustee, the Employers, the Committee (or any member or members thereof)
in defending the action will be charged, to the extent permitted by law, to the amounts
involved in the action or which were payable to the Participant or other person concerned.




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ARTICLE XII




General Provisions





	12.01	 	Non-Alienation.






	 	(a)	 	None of the Benefits under the Plan are subject to the claims of creditors of
Participants or Beneficiaries, and will not be subject to attachment, garnishment or
any other legal process. Neither a Participant nor a Beneficiary may assign, sell,
borrow on, or otherwise encumber any of his beneficial interest in the Plan and Trust
Fund, nor shall any such Benefits be in any manner liable for or subject to the deeds,
contracts, liabilities, engagements or torts of any Participant or Beneficiary. If a
Participant or Beneficiary becomes bankrupt or attempts to anticipate, sell, alienate,
transfer, pledge, assign, encumber or change any Benefit specifically provided for
herein, or if a court of competent jurisdiction enters an order purporting to subject
such interest to the claim of any creditor, then the Trustee shall hold or apply such
Benefit to or for the benefit of such Participant or Beneficiary in such manner as the
Employer may deem proper. The foregoing shall not apply to judgments, orders and
decrees issued after, and settlement agreements entered into on or after, August 5,
1997 to the extent permitted by Code Section 401(a)(13)(C) and (D).
	 
	 	(b)	 	The restrictions set out in the preceding subsection shall also apply to the
creation, assignment, or recognition of a right under a domestic relations order,
unless such order is determined to be a qualified domestic relations order as defined
in Section 414(p) of the Code (and those other domestic relations orders permitted to
be so treated as a qualified domestic relations order under the provisions of the
Retirement Equity Act of 1984). A domestic relations order entered before January 1,
1985 will be treated as a qualified domestic relations order if payment of Benefits
pursuant to the order has commenced as of such date, or if benefits had not commenced
by such date, may be treated as a qualified domestic relations order pursuant to
written procedures promulgated by the Plan Administrator.
	 
	 	 	 	The Plan Administrator shall develop written procedures to determine whether a
domestic relations court order meets the requirements of a qualified domestic
relations court order as defined in Section 414(p) of the Code and to determine the
method of distributing benefits in compliance with the order. Upon receiving a
domestic relations court order, the Administrator shall notify all affected
participants and any alternate payees that the order has been received. The Plan
Administrator shall also notify the affected Participants and alternate payees of
its procedure for determining whether the domestic relations order is qualified
under Section 414(p) of the Code.




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	 	 	 	While the Plan Administrator is determining the qualified status of the order, the
Plan Administrator shall segregate in a separate account the amount (if any) that
will be payable to an alternate payee under this order (if it were a qualified
domestic relations order) during this period. If the Plan Administrator determines
the order is a qualified domestic relations order under Section 414(p) of the Code,
during the 18 month period commencing on the date the first payment would be
required under the qualified domestic relations order, then the alternate payee
shall receive payment from the separate account. If the Administrator cannot make a
determination of the order’s qualified status during the 18 month period (or
determines the order is not a qualified domestic relations order), then the trustee
shall return the amounts in the separate account to the account of the affected
Participants as if no court order had been received.






	12.02	 	Substitute Payee. In the event a distribution is to be made to a minor or to any
Participant or other Beneficiary who, in the opinion of the Plan Administrator, is incapable
of properly using, expending, investing or otherwise disposing of such distribution, the Plan
Administrator may, based on objective criteria, order the Trustee to make such distribution to
a legal or natural guardian or other relative of such minor or to the court appointed guardian
of any incompetent, or to any adult with whom such person temporarily or permanently resides.
Such distribution shall fully discharge the Trustee, Employer and Plan from further liability.
	 
	12.03	 	Absence of Guarantee. Neither the Plan Administrator nor any Employer in any way
guarantees the Trust Fund from loss or depreciation. Except as required by applicable law,
the Employers do not guarantee any payment to any person. The liability of the Trustee or the
Plan Administrator to make any payment under the Plan will be limited to the assets held by
the Trustee which are available for that purpose.
	 
	12.04	 	No Contract. This Plan shall not be deemed to constitute a contract between the
Employer and any Participant or to be a consideration or an inducement for the employment of
any Participant or Employee. Nothing contained in this Plan shall be deemed to give any
Participant or Employee the right to be retained in the service of the Employer or to
interfere with the right of the Employer to discharge any Participant or Employee at any time
regardless of the effect which such discharge shall have upon such individual as a Participant
in the Plan.
	 
	12.05	 	Missing Persons. If after making reasonable efforts (including mailing a notice to
the last known address of the Participant or other payee under the Plan), the Trustee or
insurance company is unable to locate a Participant or to ascertain the identity of, or to
locate any other person to whom payment is due under the Plan, such payment and all subsequent
payments otherwise due shall be forfeited twenty-four (24) months after the date such payment
first became due or, upon termination, such payment and all subsequent payments shall be
forfeited pursuant to the applicable law of escheat. Provided, however, that any payment
forfeited under this Section other than by reason of escheat shall be reinstated retroactively
no later than sixty (60) days after the date on which the Participant or other payee is
located or identified.




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	12.06	 	Corporate Change. If the Employer is merged or consolidated with another
organization, or another organization acquires all or substantially all of the Employer’s
assets, such organization may become the Employer hereunder by action of its Board of
Directors and by action of the Board of Directors of the prior Employer, if still in
existence. Such change in companies shall not be deemed a termination of the Plan by either
the predecessor or successor company.
	 
	12.07	 	Merger. If this Plan is merged or consolidated with any other plan, or if the
assets or liabilities of this Plan is transferred to any other plan, and such plan is then
terminated, each Participant hereunder will receive a Benefit immediately after the merger,
consolidation or transfer which is equal to or greater than the Benefit to which he would have
received if this Plan had terminated immediately before such merger, consolidation or
transfer.
	 
	12.08	 	USERRA. Effective December 12, 1994, 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 Section 414(u) of the Internal Revenue Code.




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ARTICLE XIII




Adoption of the Plan by Other Entities





	13.01	 	Adoption of Plan. Any member of the Affiliated Group may adopt this Plan for all or
a portion of its employees, provided that the Board approves such participation and the basis
of such participation is set forth in a participation agreement by and between such
Participating Employer and the Board. The Plan and all participation agreements shall
constitute a single plan collectively adopted by all Participating Employers.
	 
	 	 	Such participation agreement may modify any of the terms of the Plan as applied to employees
of such entity. The administrative powers and control of the Company as provided in the
Plan shall not be deemed diminished under the Plan by reason of the participation of other
Employers in the Plan. Each Participating Employer shall have the obligation to pay the
contributions for its own employees and no other Employer shall have such obligation.
	 
	13.02	 	Withdrawal from Plan. A Participating Employer may withdraw at any time from the
Plan without affecting the other Participating Employers by complying with the appropriate
provisions of the Plan and Trust Agreement. The Board may, at its discretion, terminate a
Participating Employer’s participation in the Plan at any time, when in its judgment, such
Participating Employer fails or refuses to discharge its obligations under the Plan, or if
amendments to the Plan applicable to such Participating Employer are not deemed to be in the
best interests of the Plan as a whole.
	 
	 	 	IN WITNESS WHEREOF, this amended and restated Plan is hereby executed on the 12th day of June, 2009.





	 	 	 	 	 	 	 
	 	 	AMERICAN PACIFIC CORPORATION	 	 
	ATTEST: (SEAL)
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ John R. Gibson
 

	 	 







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