exv10w1






Exhibit 10.1




The Men’s Wearhouse, Inc.




401(k) Savings Plan



 









 





Table of Contents




	 	 	 	 	 

	Article 1	 	-1-
	Definitions	 	-1-
	1.1

	 	ACP Test
	 	-1-
	1.2

	 	ACP Safe Harbor Matching Contribution
	 	-1-
	1.3

	 	ACP Safe Harbor Matching Contribution Account
	 	-1-
	1.4

	 	Actual Contribution Percentage
	 	-1-
	1.5

	 	Actual Contribution Percentage Test
	 	-1-
	1.6

	 	Actual Deferral Percentage
	 	-2-
	1.7

	 	Actual Deferral Percentage Test
	 	-2-
	1.8

	 	Administrator
	 	-2-
	1.9

	 	Adopting Employer
	 	-2-
	1.10

	 	ADP Safe Harbor Contribution
	 	-2-
	1.11

	 	ADP Safe Harbor Matching Contribution
	 	-2-
	1.12

	 	ADP Safe Harbor Matching Contribution Account
	 	-3-
	1.13

	 	ADP Safe Harbor Non-Elective Contribution
	 	-3-
	1.14

	 	ADP Safe Harbor Non-Elective Contribution Account
	 	-3-
	1.15

	 	ADP Test
	 	-3-
	1.16

	 	Affiliated Employer
	 	-4-
	1.17

	 	Age
	 	-4-
	1.18

	 	Aggregate Normal Allocation Rate
	 	-4-
	1.19

	 	Allocation Period
	 	-4-
	1.20

	 	Allocation Rate
	 	-4-
	1.21

	 	Anniversary Date
	 	-4-
	1.22

	 	Annuity Starting Date
	 	-4-
	1.23

	 	Annual Additions
	 	-4-
	1.24

	 	Applicable Contribution Rate
	 	-5-
	1.25

	 	Applicable Plan Year
	 	-5-
	1.26

	 	Beneficiary
	 	-5-
	1.27

	 	Benefiting Participant
	 	-5-
	1.28

	 	Break in Service
	 	-5-
	1.29

	 	Broadly Available Allocation Rates
	 	-6-
	1.30

	 	Broadly Available Separate Plans
	 	-6-
	1.31

	 	Cash or Deferred Contribution
	 	-6-
	1.32

	 	Catch-Up Contribution
	 	-6-
	1.33

	 	Catch-Up Contribution Limit
	 	-6-
	1.34

	 	Code
	 	-6-
	1.35

	 	Code §3401 Compensation
	 	-7-
	1.36

	 	Code §401(a)(17) Compensation Limit
	 	-7-
	1.37

	 	Code §414(s) Compensation
	 	-7-
	1.38

	 	Code §415(c)(3) Compensation
	 	-7-
	1.39

	 	Committee
	 	-8-
	1.40

	 	Compensation
	 	-8-
	1.41

	 	Compensation Determination Period
	 	-9-
	1.42

	 	Contribution Percentage
	 	-9-
	1.43

	 	Contribution Percentage Amounts
	 	-9-
	1.44

	 	Counting of Hours Method
	 	-11-
	1.45

	 	Current Year Testing Method
	 	-11-
	1.46

	 	Deemed Code §125 Compensation
	 	-11-
	1.47

	 	Deemed IRA Contribution
	 	-11-
	1.48

	 	Deemed IRA Account
	 	-11-
	1.49

	 	Designated Beneficiary
	 	-11-
	1.50

	 	Determination Date
	 	-11-
	1.51

	 	Disability
	 	-11-
	1.52

	 	Distribution Calendar Year
	 	-11-
	1.53

	 	Early Retirement Age
	 	-12-
	1.54

	 	Earned Income
	 	-12-
	1.55

	 	Elapsed Time Method
	 	-12-
	1.56

	 	Elective Deferral
	 	-12-
	1.57

	 	Eligibility Computation Period
	 	-12-
	1.58

	 	Eligible Employee
	 	-12-
	1.59

	 	Employee
	 	-12-
	1.60

	 	Employee Contribution
	 	-13-
	1.61

	 	Employer
	 	-13-
	1.62

	 	Employment Commencement Date
	 	-13-
	1.63

	 	Equivalent Accrual Rate
	 	-13-
	1.64

	 	ERISA
	 	-13-






 









 






	 	 	 	 	 

	1.65

	 	Excess Annual Additions
	 	-13-
	1.66

	 	Excess Aggregate Contributions
	 	-14-
	1.67

	 	Excess Contributions
	 	-14-
	1.68

	 	Excess Elective Deferrals
	 	-14-
	1.69

	 	401(k) Plan
	 	-14-
	1.70

	 	401(m) Plan
	 	-14-
	1.71

	 	Fiscal Year
	 	-14-
	1.72

	 	Forfeiture
	 	-14-
	1.73

	 	Forfeiture Account
	 	-14-
	1.74

	 	Form W-2 Compensation
	 	-14-
	1.75

	 	Gradually Increasing Age or Service Schedule
	 	-15-
	1.76

	 	HCE
	 	-15-
	1.77

	 	Highly Compensated Employee
	 	-15-
	1.78

	 	Hour of Service
	 	-16-
	1.79

	 	Hypothetical Entry Date
	 	-16-
	1.80

	 	Immediately Distributable
	 	-17-
	1.81

	 	Independent Contractor
	 	-17-
	1.82

	 	Key Employee
	 	-17-
	1.83

	 	Leased Employee
	 	-17-
	1.84

	 	Life Expectancy
	 	-18-
	1.85

	 	Limitation Year
	 	-18-
	1.86

	 	Matching Contribution
	 	-18-
	1.87

	 	Matching Contribution Account
	 	-18-
	1.88

	 	Matching Rate
	 	-18-
	1.89

	 	Maternity or Paternity Leave
	 	-18-
	1.90

	 	Minimum Aggregate Allocation Gateway
	 	-18-
	1.91

	 	Minimum Allocation Gateway
	 	-19-
	1.92

	 	Named Fiduciary
	 	-20-
	1.93

	 	NHCE
	 	-20-
	1.94

	 	Non-Elective Contribution
	 	-20-
	1.95

	 	Non-Highly Compensated Employee
	 	-20-
	1.96

	 	Non-Key Employee
	 	-20-
	1.97

	 	Non-Safe Harbor 401(k) Plan
	 	-20-
	1.98

	 	Non-Safe Harbor 401(m) Plan
	 	-20-
	1.99

	 	Non-Safe Harbor Matching Contribution
	 	-20-
	1.100

	 	Non-Safe Harbor Matching Contribution Account
	 	-20-
	1.101

	 	Non-Safe Harbor Non-Elective Contribution
	 	-20-
	1.102

	 	Non-Safe Harbor Non-Elective Contribution Account
	 	-21-
	1.103

	 	Normal Accrual Rate
	 	-21-
	1.104

	 	Normal Form of Distribution
	 	-21-
	1.105

	 	Normal Retirement Age
	 	-21-
	1.106

	 	Normal Retirement Date
	 	-21-
	1.107

	 	Otherwise Excludable Participant
	 	-21-
	1.108

	 	Optional Form of Distribution
	 	-21-
	1.109

	 	Participant
	 	-21-
	1.110

	 	Participant’s Account
	 	-21-
	1.111

	 	Participant’s Account Balance
	 	-21-
	1.112

	 	Period of Service
	 	-22-
	1.113

	 	Period of Severance
	 	-24-
	1.114

	 	Permissive Aggregation Group
	 	-24-
	1.115

	 	Plan
	 	-24-
	1.116

	 	Plan Year
	 	-24-
	1.117

	 	Policy
	 	-24-
	1.118

	 	Post-Severance Compensation
	 	-24-
	1.119

	 	Pre-Tax Elective Deferral
	 	-25-
	1.120

	 	Pre-Tax Elective Deferral Account
	 	-25-
	1.121

	 	Primarily Defined Benefit in Character
	 	-25-
	1.122

	 	Prior Year Testing Method
	 	-25-
	1.123

	 	QJSA
	 	-25-
	1.124

	 	QMAC
	 	-25-
	1.125

	 	QMAC Account
	 	-25-
	1.126

	 	QNEC
	 	-25-
	1.127

	 	QNEC Account
	 	-25-
	1.128

	 	QPSA
	 	-25-
	1.129

	 	Qualified Joint and Survivor Annuity
	 	-25-
	1.130

	 	Qualified Matching Contribution
	 	-25-
	1.131

	 	Qualified Matching Contribution Account
	 	-26-
	1.132

	 	Qualified Non-Elective Contribution
	 	-26-
	1.133

	 	Qualified Non-Elective Contribution Account
	 	-26-






 









 






	 	 	 	 	 

	1.134

	 	Qualified Pre-Retirement Survivor Annuity
	 	-26-
	1.135

	 	Reemployment Commencement Date
	 	-26-
	1.136

	 	Regulation
	 	-27-
	1.137

	 	Representative Contribution Rate
	 	-27-
	1.138

	 	Representative Matching Rate
	 	-27-
	1.139

	 	Required Aggregation Group
	 	-27-
	1.140

	 	Required Beginning Date
	 	-27-
	1.141

	 	Rollover
	 	-28-
	1.142

	 	Rollover Contribution
	 	-28-
	1.143

	 	Rollover Contribution Account
	 	-28-
	1.144

	 	Rollover Participant
	 	-28-
	1.145

	 	Roth Elective Deferral
	 	-28-
	1.146

	 	Roth Elective Deferral Account
	 	-28-
	1.147

	 	Rule of Parity
	 	-28-
	1.148

	 	Safe Harbor Code §415 Compensation
	 	-29-
	1.149

	 	Safe Harbor 401(k) Contribution
	 	-29-
	1.150

	 	Safe Harbor 401(k) Plan
	 	-29-
	1.151

	 	Safe Harbor 401(m) Plan
	 	-29-
	1.152

	 	Safe Harbor Notice
	 	-29-
	1.153

	 	Safe Harbor Participant
	 	-29-
	1.154

	 	Self-Employed Individual
	 	-30-
	1.155

	 	Service
	 	-30-
	1.156

	 	Sponsor Stock. The term Sponsor Stock means the common stock of the Sponsoring Employer	 	-30-
	1.157

	 	Sponsoring Employer
	 	-30-
	1.158

	 	Spousal
	 	-30-
	1.159

	 	Spouse
	 	-30-
	1.160

	 	Statutory Code §415 Compensation
	 	-30-
	1.161

	 	Substantially Equal
	 	-31-
	1.162

	 	Terminated (or Terminates) Employment
	 	-31-
	1.163

	 	Terminated Participant
	 	-31-
	1.164

	 	Termination of Employment
	 	-31-
	1.165

	 	Top Heavy
	 	-31-
	1.166

	 	Top Heavy Minimum Allocation
	 	-31-
	1.167

	 	Top Heavy Ratio
	 	-32-
	1.168

	 	Transfer Contribution
	 	-33-
	1.169

	 	Transfer Contribution Account
	 	-33-
	1.170

	 	Trustee
	 	-33-
	1.171

	 	Trust (or Trust Fund)
	 	-33-
	1.172

	 	Valuation Calendar Year
	 	-33-
	1.173

	 	Valuation Date
	 	-33-
	1.174

	 	Vested Aggregate Account
	 	-33-
	1.175

	 	Vested, Vested Interest or Vesting
	 	-33-
	1.176

	 	Vesting Computation Period
	 	-33-
	1.177

	 	Voluntary Employee Contribution
	 	-33-
	1.178

	 	Voluntary Employee Contribution Account
	 	-33-
	1.179

	 	Year of Service
	 	-34-
	 
	 	 	 	 
	Article 2	 	-37-
	Plan Participation	 	-37-
	2.1

	 	Eligibility and Entry Date Requirements
	 	-37-
	2.2

	 	Waiver of Participation
	 	-38-
	2.3

	 	Reemployment After Termination
	 	-38-
	 
	 	 	 	 
	Article 3	 	-39-
	Contributions and Allocations	 	-39-
	3.1

	 	General Contribution and Allocation Provisions
	 	-39-
	3.2

	 	Elective Deferrals
	 	-40-
	3.3

	 	Non-Safe Harbor Matching Contributions
	 	-41-
	3.4

	 	Non-Safe Harbor Non-Elective Contributions
	 	-43-
	3.5

	 	Qualified Matching Contributions
	 	-43-
	3.6

	 	Qualified Non-Elective Contributions
	 	-44-
	3.7

	 	Safe Harbor 401(k) Contributions
	 	-44-
	3.8

	 	Rollover Contributions
	 	-45-
	3.9

	 	Voluntary Employee Contributions
	 	-45-
	3.10

	 	Allocation of Earnings and Losses
	 	-45-
	3.11

	 	Forfeitures and Their Usage
	 	-46-
	3.12

	 	Top Heavy Minimum Allocation
	 	-46-
	3.13

	 	Failsafe Allocation
	 	-48-
	3.14

	 	Actual Deferral Percentage Test and Correction
	 	-48-
	3.15

	 	Actual Contribution Percentage Test and Correction
	 	-50-






 









 






	 	 	 	 	 

	3.16

	 	ADP Safe Harbor Contributions
	 	-52-
	3.17

	 	ACP Safe Harbor Contributions
	 	-57-
	3.18

	 	General Non-Discrimination Test Requirements
	 	-58-
	3.19

	 	Annual Overall and Cumulative Permitted Disparity Limit
	 	-59-
	3.20

	 	Deemed IRA Contributions
	 	-61-
	 
	 	 	 	 
	Article 4	 	-62-
	Plan Benefits	 	-62-
	4.1

	 	Benefit Upon Normal Retirement
	 	-62-
	4.2

	 	Benefit Upon Late Retirement
	 	-62-
	4.3

	 	Benefit Upon Death
	 	-62-
	4.4

	 	Benefit Upon Disability
	 	-62-
	4.5

	 	Benefit Upon Termination of Employment
	 	-62-
	4.6

	 	Determination of Vested Interest
	 	-62-
	 
	 	 	 	 
	Article 5	 	-65-
	Distribution of Benefits	 	-65-
	5.1

	 	Distribution of Benefit Upon Retirement
	 	-65-
	5.2

	 	Distribution of Benefit Upon Death
	 	-65-
	5.3

	 	Distribution of Benefit Upon Disability
	 	-66-
	5.4

	 	Distribution of Benefit Upon Termination of Employment
	 	-66-
	5.5

	 	Mandatory Cash-Out of Benefits
	 	-67-
	5.6

	 	Restrictions on Immediate Distributions
	 	-68-
	5.7

	 	Accounts of Rehired Participants
	 	-69-
	5.8

	 	Spousal Consent Requirements
	 	-70-
	5.9

	 	Required Minimum Distributions
	 	-72-
	5.10

	 	Statutory Commencement of Benefits
	 	-74-
	5.11

	 	Earnings Before Benefit Distribution
	 	-74-
	5.12

	 	Distribution in the Event of Legal Incapacity
	 	-75-
	5.13

	 	Missing Payees and Unclaimed Benefits
	 	-75-
	5.14

	 	Direct Rollovers
	 	-75-
	5.15

	 	Distribution of Property
	 	-76-
	5.16

	 	Financial Hardship Distributions
	 	-76-
	5.17

	 	Pre-Retirement Distributions
	 	-77-
	5.18

	 	Distribution of Excess Elective Deferrals
	 	-77-
	5.19

	 	Distribution of Excess Contributions
	 	-78-
	5.20

	 	Distribution of Excess Aggregate Contributions
	 	-79-
	5.21

	 	Distribution of Rollover Contributions
	 	-81-
	5.22

	 	Distribution of Transfer Contributions
	 	-81-
	5.23

	 	Distribution of Voluntary Employee Contributions
	 	-82-
	 
	 	 	 	 
	Article 6	 	-83-
	Code § 415 Limitations	 	-83-
	6.1

	 	Maximum Annual Additions
	 	-83-
	6.2

	 	Adjustments to Maximum Annual Addition
	 	-83-
	6.3

	 	Multiple Plans and Multiple Employers
	 	-83-
	6.4

	 	Adjustment for Excessive Annual Additions
	 	-83-
	 
	 	 	 	 
	Article 7	 	-85-
	Loans, Insurance and Directed Investments	 	-85-
	7.1

	 	Loans to Participants
	 	-85-
	7.2

	 	Insurance on Participants
	 	-86-
	7.3

	 	Key Man Insurance
	 	-86-
	7.4

	 	Directed Investment Accounts
	 	-86-
	 
	 	 	 	 
	Article 8	 	-87-
	Duties of the Administrator	 	-87-
	8.1

	 	Appointment, Resignation, Removal and Succession
	 	-87-
	8.2

	 	General Powers and Duties
	 	-87-
	8.3

	 	Functioning of the Committee
	 	-87-
	8.4

	 	Multiple Administrators
	 	-87-
	8.5

	 	Correcting Administrative Errors
	 	-87-
	8.6

	 	Promulgating Notices and Procedures
	 	-87-
	8.7

	 	Employment of Agents and Counsel
	 	-88-
	8.8

	 	Compensation and Expenses
	 	-88-
	8.9

	 	Claims Procedures
	 	-88-
	8.10

	 	Qualified Domestic Relations Orders
	 	-88-
	8.11

	 	Appointment of Investment Manager
	 	-88-
	 
	 	 	 	 
	Article 9	 	-89-
	Trustee Provisions	 	-89-
	9.1

	 	Appointment, Resignation, Removal and Succession
	 	-89-






 









 






	 	 	 	 	 

	9.2

	 	Powers and Duties of the Trustee
	 	-89-
	 
	 	 	 	 
	Article 10	 	-90-
	Adopting Employer Provisions	 	-90-
	10.1

	 	Plan Contributions
	 	-90-
	10.2

	 	Plan Amendments
	 	-90-
	10.3

	 	Plan Expenses
	 	-90-
	10.4

	 	Employee Transfers
	 	-90-
	10.5

	 	Multiple Employer Provisions Under Code §413(c)
	 	-90-
	10.6

	 	Termination of Adoption
	 	-90-
	 
	 	 	 	 
	Article 11	 	-91-
	Amendment, Termination and Merger	 	-91-
	11.1

	 	Plan Amendment
	 	-91-
	11.2

	 	Termination By Sponsoring Employer
	 	-93-
	11.3

	 	Merger or Consolidation
	 	-93-
	11.4

	 	Plan-to-Plan Elective Transfers
	 	-94-
	 
	 	 	 	 
	Article 12	 	-95-
	Miscellaneous Provisions	 	-95-
	12.1

	 	No Contract of Employment
	 	-95-
	12.2

	 	Title to Assets
	 	-95-
	12.3

	 	Qualified Military Service
	 	-95-
	12.4

	 	Fiduciaries and Bonding
	 	-95-
	12.5

	 	Severability of Provisions
	 	-95-
	12.6

	 	Interpretation of the Plan and Trust
	 	-95-
	12.7

	 	Costs of Legal Action
	 	-96-
	12.8

	 	Qualified Plan Status
	 	-96-
	12.9

	 	Mailing of Notices to Administrator, Employer or Trustee
	 	-96-
	12.10

	 	Participant Notices and Waivers of Notices
	 	-96-
	12.11

	 	No Duplication of Benefits
	 	-96-
	12.12

	 	Evidence Furnished Conclusive
	 	-96-
	12.13

	 	Release of Claims
	 	-96-
	12.14

	 	Discontinued Contributions
	 	-96-
	12.15

	 	Multiple Copies of Plan And/or Trust
	 	-96-
	12.16

	 	Limitation of Liability and Indemnification
	 	-96-
	12.17

	 	Written Elections and Forms
	 	-97-
	12.18

	 	Assignment and Alienation of Benefits
	 	-97-
	12.19

	 	Exclusive Benefit Rule
	 	-97-
	12.20

	 	Prior Provisions of Amended and Restated Plans
	 	-97-
	12.21

	 	Dual and Multiple Trusts
	 	-97-
	12.22

	 	Loss of Volume Submitter Status
	 	-97-







 











 





The Men’s Wearhouse, Inc.

401(k) Savings Plan



This
Agreement is made and entered into as of the
1st day
of July,
2011 by The Men’s Wearhouse, Inc. (hereafter referred to as the “Sponsoring Employer”).




Introduction



The Sponsoring Employer previously established a profit sharing plan which includes a cash or
deferred arrangement under Code §401(k) (hereafter referred to as the “Plan”), effective February
1, 1978, which the Sponsoring Employer wishes to amend. Therefore, effective July 1, 2011 (except
for those specific provisions that have an earlier effective date), the Sponsoring Employer hereby
amends and restates the Plan. This amended and restated Plan is intended to comply with the
requirements of the Employee Retirement Income Security Act of 1974 and the Internal Revenue Code
of 1986, as amended by subsequent legislation, including The Economic Growth and Tax Relief
Reconciliation Act of 2001 and the Job Creation and Workers Assistance Act of 2002, and it is also
intended to comply with all applicable rulings and Regulations promulgated thereunder.




Article 1

Definitions





	1.1	 	ACP Test. The term ACP Test means the Actual Contribution Percentage Test.
	 
	1.2	 	ACP Safe Harbor Matching Contribution. The term ACP Safe Harbor Matching
Contribution means an Employer contribution (including an ADP Safe Harbor Matching
Contribution) made to this or any other defined contribution plan on behalf of a Participant
on account of a Participant’s Elective Deferrals and/or a Participant’s Employee Contributions
made by such Participant under a plan maintained by the Sponsoring Employer, which falls
within the requirements of the ACP Safe Harbor as set forth in Code §401(m)(11) and Section
3.17 of the Plan and which is intended to automatically satisfy the requirements of the ACP
Test for a Plan Year.
	 
	1.3	 	ACP Safe Harbor Matching Contribution Account. The term ACP Safe Harbor Matching
Contribution Account means the account to which a Participant’s ACP Safe Harbor Matching
Contributions are credited.
	 
	1.4	 	Actual Contribution Percentage. The term Actual Contribution Percentage means,
for a specified group of Participants (either Highly Compensated Employees or Non-Highly
Compensated Employees) for a Plan Year, the average of the Contribution Percentages of the
“Eligible Participants” in a group. An Actual Contribution Percentage for a specified group of
Participants will be calculated to the nearest hundredth of a percentage point. For purposes
of this definition, the term “Eligible Participant” means any Employee (either a Highly
Compensated Employee or a Non-Highly Compensated Employee) who is eligible (a) to make a
Voluntary Employee Contribution, (b) to make a Mandatory Employee Contribution, (c) to make an
Elective Deferral (if the Sponsoring Employer takes such Elective Deferrals into account in
the calculation of the Contribution Percentage), (d) to receive a Matching Contribution
(including Forfeitures that are contingent upon the Participant making Elective Deferrals or
Employee Contributions), or (e) to receive a Qualified Matching Contribution. If an Employee
Contribution is required as a condition of participation in the Plan, then any Employee who
would be a Participant if such Employee made such a contribution will be treated as an
“Eligible Participant” on behalf of whom no Employee Contributions are made.
	 
	1.5	 	Actual Contribution Percentage Test. The term Actual Contribution Percentage Test
means the nondiscrimination test of Section 3.15 that is performed each Plan Year on a
Non-Safe Harbor 401(m) Plan. The Plan uses the Prior Year Testing Method to apply the Actual
Contribution Percentage Test. In any Plan Year, if ACP Safe Harbor Matching Contributions
(including, if applicable, ADP Safe Harbor Matching Contributions) satisfy the requirements of
Section 3.17, then the Actual Contribution Percentage Test will be deemed to be satisfied with
respect to such ACP Safe Harbor Matching Contributions for that Plan Year. Notwithstanding the
foregoing, a Plan that makes ACP Safe Harbor Matching Contributions that satisfy the
requirements of Section 3.17 is deemed to have elected the Current Year Testing Method.




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	1.6	 	Actual Deferral Percentage. The term Actual Deferral Percentage means, for a
specified group of Participants (either Highly Compensated Employees or Non-Highly Compensated
Employees) for a Plan Year, the average of the ratios (calculated separately to the nearest
hundredth of a percentage point for each Participant in such group) of (a) the amount of
Employer contributions actually paid over to the Trust on behalf of such Participant for the
Plan Year to (b) the Code §414(s) Compensation of such Participant for such Plan Year. For
purposes of computing Actual Deferral Percentages, an Employee who would be a Participant but
for the failure to make Elective Deferrals will be treated as a Participant on whose behalf no
Elective Deferrals are made and such Participant’s ratio will equal zero (0). An Actual
Deferral Percentage for a specified group of Participants will be calculated to the nearest
hundredth of a percentage point. Employer contributions actually paid over to the Trust on
behalf of such Participant (either a HCE or a NHCE) for the Plan Year will include the
following:






	 	(a)	 	Elective Deferrals. Any Elective Deferrals made pursuant to the Participant’s
deferral election (including Excess Elective Deferrals of Highly Compensated Employees),
but excluding the following: (1) Excess Elective Deferrals of NHCEs that arise solely
from Elective Deferrals made under this Plan or plans of this Sponsoring Employer; (2)
Elective Deferrals that are treated as Catch-Up Contributions under Code §414(v) because
the Elective Deferrals exceed a statutory limit or employer-provided limit (within the
meaning of Regulation §1.414(v)—1(b)(1)) for the Plan Year for which the Elective
Deferrals were made, or for any other Plan Year; (3) Elective Deferrals that are taken
into account in the Actual Contribution Percentage Test (provided the ADP Test is
satisfied both with and without the exclusion of these Elective Deferrals); and (4)
additional Elective Deferrals that are made pursuant to Code §414(u) by reason of a
Participant’s qualified military service for the Plan Year for which the contributions
are made, or for any other Plan Year.
	 
	 	(b)	 	QNECs and QMACs. In the discretion of the Sponsoring Employer, Qualified
Non-Elective Contributions and Qualified Matching Contributions.






	1.7	 	Actual Deferral Percentage Test. The term Actual Deferral Percentage Test means
the nondiscrimination test of Section 3.14 that is performed each Plan Year on a Non-Safe
Harbor 401(k) Plan. The Plan uses the Prior Year Testing Method to apply the Actual Deferral
Percentage Test. In any Plan Year, if ADP Safe Harbor Contributions satisfy the requirements
of Section 3.16, then the Actual Deferral Percentage Test will be deemed to be satisfied with
respect to any Elective Deferrals of that Plan Year. Notwithstanding the foregoing, a Plan
that makes ADP Safe Harbor Matching Contributions that satisfy the requirements of Section
3.16 is deemed to have elected the Current Year Testing Method.
	 
	1.8	 	Administrator. The term Administrator means the Sponsoring Employer unless the
Sponsoring Employer appoints another Administrator under Section 8.1. The term “Administrator”
also means a Qualified Termination Administrator (“QTA”) charged with the task of holding the
assets of an orphan plan as permitted by the Department of Labor. A QTA will be an eligible
custodian such as a bank, mutual fund house, or insurance company. Third party record-keepers
cannot be QTAs. However, in the case of a one participant-owner only plan, the spouse of a
deceased owner can continue to operate the Plan, pursuant to Revenue Procedure 2006-27.
	 
	1.9	 	Adopting Employer. The term Adopting Employer means any entity which adopts this
Plan with the consent of the Sponsoring Employer. In addition to all other terms and
conditions in the Plan, Adopting Employers must comply with the terms and conditions set forth
in Article 10. An Affiliated Employer is not considered an Adopting Employer unless such
Affiliated Employer has specifically adopted the Plan.
	 
	1.10	 	ADP Safe Harbor Contribution. The term ADP Safe Harbor Contribution means an ADP
Safe Harbor Matching Contribution and/or an ADP Safe Harbor Non-Elective Contribution.
	 
	1.11	 	ADP Safe Harbor Matching Contribution. The term ADP Safe Harbor Matching
Contribution means an Employer contribution made to this or any other defined contribution
plan on behalf of a Participant (a) on account of a Participant’s Elective Deferrals made by
such Participant under a plan maintained by the Sponsoring Employer, (b) in which a
Participant will have a 100% Vested Interest at all times, and (c) which falls within the
requirements of the ADP Safe Harbor as set forth in Code §401(k)(12) and Section 3.16 of the
Plan and which is intended to automatically satisfy the requirements of the ADP Test and the
ACP Test for a Plan Year. ADP Safe Harbor Matching Contributions can be either “Basic” or
“Enhanced” as set forth in a Safe Harbor 401(k) Addendum. ADP Safe Harbor Matching
Contributions can only be distributed upon the earliest to occur of the following dates: (a) a
Participant Terminates Employment (separates from service, for Plan Years beginning before
2002) with the Employer; (b) a Participant dies; (c) a Participant suffers a Disability; (d)
an event that is described in Code §401(k)(10) occurs; or (e) a Participant reaches Age 591/2
(if on or before such date, a pre-




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	 	 	retirement in-service withdrawal of ADP Safe Harbor Matching Contributions is permitted under
Section 5.17). With respect to clause (d) of the prior sentence, ADP Safe Harbor Matching
Contributions can be distributed (in a lump sum only) upon termination of the Plan, so long as
the Sponsoring Employer (or an Affiliated Employer) does not maintain an alternative defined
contribution plan at any time during the period beginning on the date of Plan termination and
ending 12 months after all assets have been distributed from the terminated Plan. However, if
at all times during the 24-month period beginning 12 months before the date of Plan’s
termination, fewer than 2% of the Employees eligible to participate in the 401(k) Plan as of
the date of the Plan’s termination are eligible to participate in the other defined
contribution plan, then the other defined contribution plan is not an alternative defined
contribution plan. In addition, a defined contribution plan is not an alternative defined
contribution plan if it is an employee stock ownership plan as defined in Code §4975(e)(7) or
Code §409(a), a simplified employee pension as defined in Code §408(k), a SIMPLE IRA plan as
defined in Code §408(p), a plan or contract that is described in Code §403(b), or a plan that
is described in Code §457(b) or Code §457(f). For Plan Years beginning before 2002, ADP Safe
Harbor Matching Contributions could also be distributed (in a lump sum only) upon (a) the
disposition by a corporation to an unrelated corporation of substantially all of the assets
(within the meaning of Code §409(d)(2)) used in a trade or business of such corporation if
such corporation continues to maintain the Plan after the disposition, but only with respect
to employees who continue employment with the corporation acquiring such assets; or (b) the
disposition by a corporation to an unrelated entity of such corporation’s interest in a
subsidiary (within the meaning of Code §409(d)(3)) if such corporation continues to maintain
the Plan, but only with respect to employees who continue employment with such subsidiary.






	1.12	 	ADP Safe Harbor Matching Contribution Account. The term ADP Safe Harbor Matching
Contribution Account means the account to which a Participant’s ADP Safe Harbor Matching
Contributions are credited.
	 
	1.13	 	ADP Safe Harbor Non-Elective Contribution. The term ADP Safe Harbor Non-Elective
Contribution means a Non-Elective Contribution in which a Participant will have a 100% Vested
Interest at all times, which falls within the requirements of the ADP Safe Harbor as set forth
in Code §401(k)(12) and Section 3.16 of the Plan, and which is intended to automatically
satisfy the requirements of the ADP Test for a Plan Year. ADP Safe Harbor Non-Elective
Contributions can only be distributed upon the earliest to occur of the following dates: (a) a
Participant Terminates Employment (separates from service, for Plan Years beginning before
2002) with the Employer; (b) a Participant dies; (c) a Participant suffers a Disability; (d)
an event that is described in Code §401(k)(10) occurs; or (e) a Participant reaches Age 591/2
(if on or before such date, a pre-retirement in-service withdrawal of ADP Safe Harbor
Non-Elective Contributions is permitted under Section 5.17). With respect to clause (d) of the
prior sentence, ADP Safe Harbor Non-Elective Contributions can be distributed (in a lump sum
only) upon termination of the Plan, so long as the Sponsoring Employer (or an Affiliated
Employer) does not maintain an alternative defined contribution plan at any time during the
period beginning on the date of Plan termination and ending 12 months after all assets have
been distributed from the terminated Plan. However, if at all times during the 24-month period
beginning 12 months before the date of Plan’s termination, fewer than 2% of the Employees who
were eligible to participate in the 401(k) Plan as of the date of the Plan’s termination are
eligible to participate in the other defined contribution plan, then the other defined
contribution plan is not an alternative defined contribution plan. In addition, a defined
contribution plan is not an alternative defined contribution plan if it is an employee stock
ownership plan as defined in Code §4975(e)(7) or Code §409(a), a simplified employee pension
as defined in Code §408(k), a SIMPLE IRA plan as defined in Code §408(p), a plan or contract
that is described in Code §403(b), or a plan that is described in Code §457(b) or Code
§457(f). For Plan Years beginning before 2002, ADP Safe Harbor Non-Elective Contributions
could also be distributed (in a lump sum only) upon (a) the disposition by a corporation to an
unrelated corporation of substantially all of the assets (within the meaning of Code
§409(d)(2)) used in a trade or business of such corporation if it continues to maintain the
Plan after the disposition, but only with respect to employees who continue employment with
the corporation acquiring such assets; or (b) the disposition by a corporation to an unrelated
entity of such corporation’s interest in a subsidiary (within the meaning of Code §409(d)(3))
if such corporation continues to maintain the Plan, but only with respect to employees who
continue employment with such subsidiary.
	 
	1.14	 	ADP Safe Harbor Non-Elective Contribution Account. The term ADP Safe Harbor
Non-Elective Contribution Account means the account to which a Participant’s ADP Safe Harbor
Non-Elective Contributions are credited.
	 
	1.15	 	ADP Test. The term ADP Test means the Actual Deferral Percentage Test.




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	1.16	 	Affiliated Employer. The term Affiliated Employer means any of the following:
(1) a controlled group of corporations as defined in Code §414(b); (2) a trade or business
(whether or not incorporated) under common control as described in Code §414(c); (3) any
organization (whether or not incorporated) which is a member of an affiliated service group as
described in Code §414(m); and (4) any other entity required to be aggregated as described in
Code §414(o). Any Periods of Service or Years of Service with an Affiliated Employer will only
be taken into account as otherwise provided under the Plan.
	 
	1.17	 	Age. The term Age means actual age attained unless otherwise specified.
	 
	1.18	 	Aggregate Normal Allocation Rate. The term Aggregate Normal Allocation Rate
means the sum of the Employee’s Allocation Rate under the defined contribution plan(s) and the
equivalent normal allocation rate under the defined benefit plan(s), determined in the
following manner:






	 	(a)	 	Aggregate Allocation Rates. An Employee’s Aggregate Normal Allocation Rate is
determined by treating all defined contribution plans that are part of the combination of
defined benefit plan(s) and defined contribution plan(s) as a single plan, and all
defined benefit plans that are part of the combination of defined benefit plan(s) and
defined contribution plan(s) as a separate single plan. Furthermore, an equivalent normal
allocation rate for the Employee is determined pursuant to Regulation
§1.401(a)(4)—8(c)(2).
	 
	 	(b)	 	Options Applied on an Aggregate Basis. The optional rules in Regulation
§1.401(a)(4)—2(c)(2)(iv) (imputation of permitted disparity) and (v) (grouping of rates)
may not be used to determine an Employee’s allocation or equivalent normal allocation
rate, but may be applied to determine an Employee’s Aggregate Normal Allocation Rate by
substituting the Aggregate Normal Allocation Rate (determined without regard to the
option) for the Employee’s Allocation Rate in that Regulation section where appropriate.
	 
	 	(c)	 	Consistency Rule. Aggregate Normal Allocation Rates must be determined in a
consistent manner for all employees for the Plan Year. The same measurement periods and
interest rates must be used, and any available options must be applied consistently, if
at all, for the entire combination of defined benefit and defined contribution plan(s).
Options that are not permitted to be used under Regulation §1.401(a)(4)—8 in
cross-testing a defined contribution plan or a defined benefit plan (such as measurement
periods that include future periods, non-standard interest rates, the option to disregard
compensation adjustments described in §1.401(a)(4)—13(d), or the option to disregard
Plan provisions providing for actuarial increases after normal retirement age under
Regulation §1.401(a)(4)—3(f)(3)) may not be used in testing a combination of defined
benefit and defined contribution plan(s) on either a benefits or contributions basis,
because their use would inevitably result in inconsistent determinations under the
defined contribution and defined benefit plan(s).






	1.19	 	Allocation Period. The term Allocation Period means a period of 12 consecutive
months or less for which (a) an Employer contribution is made and allocated under the terms of
the Plan; (b) Forfeitures are allocated under the terms of the Plan; and/or (c) earnings and
losses are allocated under the terms of the Plan.
	 
	1.20	 	Allocation Rate. The term Allocation Rate means, for a Participant for a Plan
Year, the sum of the allocations to the Participant’s Account for the Plan Year, expressed as
a percentage of Code §414(s) Compensation, subject to the following: (a) the allocations used
to determine an Allocation Rate for a Plan Year include all Employer contributions and
forfeitures that are allocated or treated as allocated to the Participant’s Account for the
Plan Year, other than amounts described in clause (b) below. For this purpose, Employer
contributions include Annual Additions described in Regulation §1.415-6(b)(2)(i) (regarding
amounts arising from certain transactions between the Plan and the Employer); and (b)
allocations of income, expenses, gains, and losses attributable to the balance in a
Participant’s Account are not used to determine an Allocation Rate.
	 
	1.21	 	Anniversary Date. The term Anniversary Date means December 31st.
	 
	1.22	 	Annuity Starting Date. The term Annuity Starting Date means the first day of the
first period for which a benefit is paid as an annuity, in the case of a benefit not payable
as an annuity, the first day all events have occurred which entitle the Participant to the
benefit. The first day of the first period for which a benefit is to be paid by reason of
Disability will be treated as the Annuity Starting Date only if it is not an auxiliary
benefit.
	 
	1.23	 	Annual Additions. The term Annual Additions means the sum of the following
amounts credited to a Participant’s Account for any Limitation Year: (a) Employer
contributions; (b) Employee contributions; (c) Forfeitures; (d) amounts allocated to an
individual medical account, as defined in Code §415(l)(2), which is part




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	 	 	of a pension or annuity plan maintained by the Employer; and (e) amounts derived from
contributions paid or accrued that are attributable to post-retirement medical benefits,
allocated to the separate account of a Key Employee, as defined in Code §419A(d)(3), under a
welfare fund, as defined in Code §419(e), maintained by the Employer. Notwithstanding the
foregoing, a Participant’s Annual Additions do not include a Participant’s rollovers, loan
repayments, Catch-up Contributions, repayments of either prior Plan distributions or prior
distributions of Mandatory Employee Contributions, direct transfers of contributions from
another plan to this Plan, deductible contributions to a simplified employee pension plan, or
voluntary deductible contributions.
	 
	1.24	 	Applicable Contribution Rate. The term Applicable Contribution Rate, for a
Participant who is a Non-Highly Compensated Employee, means (a) for purposes of the ADP Test,
the sum of the Qualified Matching Contributions used in the ADP Test for the Participant who
is a Non-Highly Compensated Employee for the Plan Year and the Qualified Non-Elective
Contributions made for the Participant who is a Non-Highly Compensated Employee for the Plan
Year, divided by the Participant’s Code §414(s) Compensation for the Plan Year; and (b) for
purposes of the ACP Test, the sum of the Matching Contributions used under the Contribution
Percentage Amounts for the Participant who is a Non-Highly Compensated Employee for the Plan
Year and the Qualified Non-Elective Contributions made for the Participant who is a Non-Highly
Compensated Employee for the Plan Year, divided by the Participant’s Code §414(s) Compensation
for the Plan Year.






	1.25	 	Applicable Plan Year. The term Applicable Plan Year means (a) for any Plan Year
in which the Prior Year Testing Method is being used, the Plan Year prior to the Plan Year
that is being tested; and (b) for any Plan Year in which the Current Year Testing Method is
being used, the Plan Year that is being tested.
	 
	1.26	 	Beneficiary. The term Beneficiary means the recipient designated by a
Participant to receive the benefit payable upon the Participant’s death, or the recipient
designated by a Beneficiary to receive any benefit which may be payable in the event of the
Beneficiary’s death prior to receiving the entire death benefit to which the Beneficiary is
entitled. All such Beneficiary designations will be made in accordance with the following
provisions:






	 	(a)	 	Beneficiary Designations by a Participant. Subject to the provisions of Section
5.8 regarding the rights of a Participant’s Spouse, each Participant may designate a
Beneficiary in writing with the Administrator. If a Participant designates his or her
Spouse and the Participant and his or her Spouse are legally divorced subsequent to the
date of the designation, then the designation of such Spouse as a Beneficiary hereunder
will be deemed null and void unless the Participant, subsequent to the legal divorce,
reaffirms the designation in writing. In the absence of any other designation, the
Participant will be deemed to have designated the following Beneficiaries in the
following order, provided however, that with respect to clauses (1) and (2) following,
such Beneficiaries are then living: (1) the Participant’s Spouse, (2) the Participant’s
estate; and (3) any of the Participant’s or former Participant’s heirs at law, if there
is no administration of the Participant’s or former Participant’s estate known to, or
reasonably expected by, the Committee.
	 
	 	(b)	 	Beneficiary Designations by a Beneficiary. In the absence of a Beneficiary
designation or other directive from a Participant to the contrary, any Beneficiary may
name his or her own Beneficiary under Section 5.2(d) of the Plan to receive any benefits
payable in the event of the Beneficiary’s death prior to the receipt of all the
Participant’s death benefits to which the Beneficiary was entitled.
	 
	 	(c)	 	Beneficiaries Considered Contingent Until the Death of the Participant.
Notwithstanding any provision in this Section to the contrary, any Beneficiary named
hereunder will be considered a contingent Beneficiary until the death of the Participant
(or Beneficiary, as the case may be), and until such time will have no rights granted to
Beneficiaries under the Plan.






	1.27	 	Benefiting Participant. The term Benefiting Participant means a Participant who
is eligible to receive an allocation of any type of Employer contributions or related
Forfeitures as of the last day of an Allocation Period in accordance with the allocation
conditions set forth in Article 3 of the Plan. Whether a Participant is a Benefiting
Participant for any Allocation Period is determined separately for each type of contribution.
	 
	1.28	 	Break in Service. The term Break in Service means (a) in determining eligibility
under Section 2.1, a 1-Year Period of Severance; and (b) in determining Vesting under Section
4.6, a Vesting Computation Period during which an Employee is not credited with more than 500
Hours of Service. If any computation period is less than 12 months, then the Hours of Service
threshold set forth in the preceding sentence will be proportionately reduced if the Hours of
Service threshold is greater than one. With respect to the Elective Deferral component of a
401(k) Plan, a Participant who incurs a Break in Service but who does not Terminate Employment
may




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	 	 	continue to have Elective Deferrals made on his or her behalf to the Plan. However, such
Participant will not be eligible to receive an allocation of any Non-Safe Harbor Matching
Contributions and/or Non-Safe Harbor Non-Elective Contributions (if any) unless such
Participant is also a Benefiting Participant.






	1.29	 	Broadly Available Allocation Rates. The term Broadly Available Allocation Rates
means, for Plan Years beginning on or after January 1, 2002, that each Allocation Rate is
currently available during the Plan Year (within the meaning of Regulation
§1.401(a)(4)-4(b)(2)) to a group of Employees that satisfies the requirements of Code §410(b)
without regard to the average benefit percentage test of Regulation §1.410(b)-5. If two
Allocation Rates could be permissively aggregated under Regulation §1.401(a)(4)-4(d)(4),
assuming that the Allocation Rates were treated as benefits, rights, or features, then the
Allocation Rates may be aggregated and treated as a single Allocation Rate. However, the
disregarding of the age and service conditions as set forth in Regulation
§1.401(a)(4)-4(b)(2)(ii)(A) does not apply for purposes of this definition. Furthermore, in
determining whether the Plan has Broadly Available Allocation Rates, differences in Allocation
Rates attributable solely to the use of permitted disparity as described in Regulation
§1.401(1)-2 are disregarded.
	 
	1.30	 	Broadly Available Separate Plans. The term Broadly Available Separate Plans
means, for Plan Years beginning on or after January 1, 2002, a combination of defined benefit
and defined contribution plans that satisfy the requirements of Code §410(b) and the
nondiscrimination in amount requirement of Regulation §1.401(a)(4)—1(b)(2) if each plan were
tested separately and assuming that the average benefit percentage test of Regulation
§1.410(b)—5 were satisfied. For this purpose, all defined contribution plans that are part of
the combination of defined benefit and defined contribution plans are treated as a single
defined contribution plan, and all defined benefit plans that are part of the combination of
defined benefit and defined contribution plans are treated as a single defined benefit plan.
If permitted disparity under Regulation §1.401(a)(4)—7 is used for a Participant for purposes
of satisfying the separate testing requirement for plans of one type, permitted disparity may
not be used in satisfying the separate testing requirement for plans of the other type for the
Participant.
	 
	1.31	 	Cash or Deferred Contribution. The term Cash or Deferred Contribution means an
Employer amount that the Participant can elect, subject to the provisions of Section 3.2(b),
to have the Employer either (a) provide to the Participant as cash; or (b) contribute to the
Plan as an Elective Deferral on behalf of the Participant, which contribution defers the
receipt of Compensation by the Participant.
	 
	1.32	 	Catch-Up Contribution. The term Catch-Up Contribution means Elective Deferrals
made to the Plan that are in excess of an otherwise applicable Plan limit and that are made by
Participants who are age 50 or over by the end of their taxable year. An otherwise applicable
Plan limit is a limit in the Plan that applies to Elective Deferrals without regard to
Catch-Up Contributions, such as (a) the limit on Annual Additions; (b) the dollar limit on
Elective Deferrals under Code §402(g) (not counting Catch-Up Contributions); (c) the limit
imposed by the ADP Test under § 401(k)(3); or (d) a Plan imposed limit set forth in a
resolution properly executed by the Employer which is considered to be an amendment to the
Plan. Catch-Up Contributions are not subject to the limit on Annual Additions, are not counted
in the ADP Test, and are not counted in determining the Top Heavy Minimum Allocations under
Code §416. However, Catch-Up Contributions made in prior years are counted in determining
whether the Plan is Top-Heavy. Provisions in the Plan relating to Catch-Up Contributions apply
to Elective Deferrals made to the Plan after 2001. The total amount of Catch-Up Contributions
for any taxable year will not exceed the Catch-Up Contribution Limit.
	 
	1.33	 	Catch-Up Contribution Limit. The term Catch-Up Contribution Limit means the
statutory limit on Catch-Up Contributions for a Participant for any taxable year. A
Participant’s Catch-Up Contributions for a taxable year may not exceed (a) the dollar limit on
Catch-Up Contributions under Code §414(v)(2)(B)(i) for the taxable year, or (b) when added to
other Elective Deferrals, 100% of the Participant’s Compensation for the taxable year. The
dollar limit on Catch-Up Contributions under Code §414(v)(2)(B)(i) is $1,000 for taxable years
beginning in 2002, increasing by $1,000 for each year thereafter up to $5,000 for taxable
years beginning in 2006 and later years. After 2006, the $5,000 limit will be adjusted by the
Secretary of the Treasury for cost-of-living increases under Code §414(v)(2)(C). Any such
adjustments will be in multiples of $500. Different limits apply to Catch-Up Contributions
under SIMPLE 401(k) plans.
	 
	1.34	 	Code. The term Code means the Internal Revenue Code of 1986, as amended, the
Regulations, and rulings promulgated thereunder by the Internal Revenue Service. All citations
to sections of the Code and Regulations are to such sections as they may from time to time be
amended or renumbered.




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	1.35	 	Code §3401 Compensation. The term Code §3401 Compensation means wages within the
meaning of Code §3401(a) (for purposes of income tax withholding at the source), but
determined without regard to any rules that limit the remuneration included in wages based on
the nature or location of the employment or the services performed (such as the exception for
agricultural labor in Code §3401(a)(2)).
	 
	1.36	 	Code §401(a)(17) Compensation Limit. The term Code §401(a)(17) Compensation
Limit means, for any Plan Year and/or Limitation Year which begins on or after January 1,
2002, the statutory limit that applies to each Participant’s annual Compensation for a
specific Compensation Determination Period; such annual Compensation will not exceed $200,000.
However, the $200,000 statutory limit on annual Compensation will be adjusted for
cost-of-living increases in accordance with Code §401(a)(17)(B). The cost-of-living adjustment
in effect for a calendar year applies to annual Compensation for the Compensation
Determination Period that begins with or within such calendar year. If a Compensation
Determination Period is less than 12 consecutive months, then the Code §401(a)(17)
Compensation Limit will be multiplied by a fraction, the numerator of which is the number of
months in the Compensation Determination Period, and the denominator of which is 12. If
Compensation for any prior Compensation Determination Period is used in determining a
Participant’s Plan benefits for the current Plan Year, then the annual Compensation for such
prior Compensation Determination Period is subject to the applicable Code §401(a)(17)
Compensation Limit as in effect for that prior Compensation Determination Period.
	 
	1.37	 	Code §414(s) Compensation. The term Code §414(s) Compensation means, for testing
purposes (including, but not limited to, the ADP Test and the ACP Test), any compensation that
qualifies as a nondiscriminatory definition of compensation under Code §414(s) and the
Regulations thereunder. The Administrator is not bound by any other definition of compensation
in the Plan in determining Code §414(s) Compensation. The Administrator may determine on an
annual basis (and within its discretion) Code §414(s) Compensation, which will be applied
consistently to all Participants for a Plan Year; to all applicable tests that are
administered for such Plan Year; and to all plans (including this Plan) of the Sponsoring
Employer and Adopting Employers for such Plan Year. Code §414(s) Compensation may be
determined over the Plan Year for which the applicable test is being performed or the calendar
year ending within such Plan Year. In determining Code §414(s) Compensation, the Administrator
within its discretion may take into consideration only the Compensation received while the
Employee is a Participant under the component of the Plan being tested, and/or only the
Compensation for the portion of the Plan Year during which the Plan was a 401(k) Plan.
	 
	1.38	 	Code §415(c)(3) Compensation. The term Code §415(c)(3) Compensation means the
following:






	 	(a)	 	Top Heavy Allocations and Key Employee Determinations. In determining any Top
Heavy Minimum Allocation and whether an Employee is a Key Employee, the term Code
§415(c)(3) Compensation means Code §3401 Compensation during the entire Compensation
Determination Period that statutorily applies.
	 
	 	(b)	 	Code §415 Limitations. In determining a Participant’s Code §415 limitation for
any Limitation Year, the term Code §415(c)(3) Compensation means Code §3401 Compensation
during the entire Compensation Determination Period that statutorily applies.
	 
	 	(c)	 	Highly Compensated Employee Determination. In determining whether a Participant
is a Highly Compensated Employee (or for any other statutory determination not described
in paragraphs (a) and (b) above), the term Code §415(c)(3) Compensation means Code §3401
Compensation during the entire Compensation Determination Period that statutorily
applies.
	 
	 	(d)	 	Exclusions to Compensation Do Not Apply. Code §415(c)(3) Compensation includes
any amounts that are excluded from Compensation under Section 1.40 of the Plan.
	 
	 	(e)	 	Inclusion of Certain Amounts. Code §415(c)(3) Compensation includes any elective
deferral as defined in Code §402(g)(3) and any amount contributed or deferred by the
Employer at the election of the Employee which is not includible in gross income by
reason of Code §125, Code §132(f)(4), or Code §457.
	 
	 	(f)	 	Self-Employed Individuals. Code §415(c)(3) Compensation of a Self-Employed
Individual will be equal to his or her Earned Income, plus amounts deferred at the
election of the Self-Employed Individual that would be includible in gross income but for
the rules of Code §402(e)(3), §402(h)(1)(B), §402(k), or §457(b).
	 
	 	(g)	 	Treatment of Post-Severance Compensation. Effective January 1, 2005, Code
§415(c)(3) Compensation includes Post-Severance Compensation.




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	1.39	 	Committee. The term Committee means the administrative/advisory group that the
Sponsoring Employer may establish, to which the Sponsoring Employer may delegate certain of
the Sponsoring Employer’s responsibilities as Administrator. The Sponsoring Employer is
permitted to select another name for such administrative/advisory group. The Sponsoring
Employer may appoint one or more members to the Committee. Members of the Committee need not
be Participants or Beneficiaries, and officers and directors of the Sponsoring Employer are
not precluded from serving as members of the Committee.
	 
	1.40	 	Compensation. The term Compensation means the following with respect to
determining the amount of, and the allocation of, the various Employer contributions permitted
under the terms of the Plan:






	 	(a)	 	Compensation for Elective Deferral Purposes. In determining the amount of a
Participant’s Elective Deferrals, the term Compensation means a Participant’s Code §3401
Compensation received during a Compensation Determination Period. For purposes of this
paragraph, (1) a Compensation Determination Period is the Plan Year; and (2) any elective
deferrals as defined under Code §402(g) and any amount contributed or deferred by the
Employer at the election of the Employee which is not includible in gross income by
reason of Code §125, Code §132(f)(4) or Code §457, will be included in Compensation. In
addition, any amount received under the following circumstances will not be considered
Compensation for purposes of this paragraph: (1) amounts set forth in Regulation
§1.414(s)-1(c)(3) (i.e., reimbursements or other expense allowances, including fringe
benefits (cash and non-cash), moving expenses, deferred compensation and welfare
benefits, even if includible in gross income); (2) amounts received as bonuses; and (3)
any amount received as awards and tax gross-up payments; and (4) Post Severance
Compensation.
	 
	 	(b)	 	Compensation for Non-Safe Harbor Matching Contribution Purposes. In determining
Non-Safe Harbor Matching Contributions, the term Compensation means a Participant’s Code
§3401 Compensation received during a Compensation Determination Period. For purposes of
this paragraph, (1) a Compensation Determination Period is the Plan Year; and (2) any
elective deferrals as defined under Code §402(g) and any amount contributed or deferred
by the Employer at the election of the Employee which is not includible in gross income
by reason of Code §125, Code §132(f)(4) or Code §457, will be included in Compensation.
In addition, any amount received under the following circumstances will not be considered
Compensation for purposes of this paragraph: (1) amounts set forth in Regulation
§1.414(s)-1(c)(3) (i.e., reimbursements or other expense allowances, including fringe
benefits (cash and non-cash), moving expenses, deferred compensation and welfare
benefits, even if includible in gross income); (2) amounts received as bonuses; and (3)
any amount received as awards and tax gross-up payments; and (4) Post Severance
Compensation.
	 
	 	(c)	 	Compensation Used to Determine Safe Harbor 401(k) Contributions. For any year in
which this is a Safe Harbor 401(k) Plan or a Safe Harbor 401(m) Plan, the Compensation
used in determining the Safe Harbor 401(k) Contribution will be set forth in a Safe
Harbor 401(k) Addendum executed by the Sponsoring Employer, except that no dollar limit,
other than the Code §401(a)(17) Limit, applies to the Compensation of a NHCE.
Compensation for a Safe Harbor 401(k) Plan or Safe Harbor 401(m) Plan must qualify as a
nondiscriminatory definition of compensation under Code §414(s) and the Regulations
thereunder.
	 
	 	(d)	 	Compensation of Self-Employed Individuals. For purposes of this Plan, the
Compensation of a Self-Employed Individual will be equal to his or her Earned Income;
however, such Compensation will not exceed the Code §401(a)(17) Compensation Limit.
	 
	 	(e)	 	Code §401(a)(17) Compensation Limit. In determining Compensation for all purposes
other than for Elective Deferral purposes under Code §402(g), a Participant’s
Compensation for any Compensation Determination Period will not exceed the Code
§401(a)(17) Compensation Limit.
	 
	 	(f)	 	Compensation for Permitted Disparity Purposes. If a Non-Safe Harbor Non-Elective
Contribution is determined and/or allocated according to the rules of permitted disparity
under Code §401(l) and the Regulations thereunder, then Compensation for such purposes
must qualify as a nondiscriminatory definition of compensation under Code §414(s) and the
Regulations thereunder.




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	1.41	 	Compensation Determination Period. The term Compensation Determination Period
means, for each definition of Compensation as it relates to a particular component or type of
contribution under the Plan, either the Plan Year, the Fiscal Year ending with or within the
Plan Year, or the calendar year ending with or within the Plan Year, as specifically set forth
in the Plan with respect to the particular component or type of contribution. However, for
purposes of a specific statutory determination (e.g. whether an Employee is a Highly
Compensated Employee), the term “Compensation Determination Period” means the period that is
stated in this Plan.
	 
	1.42	 	Contribution Percentage. The term Contribution Percentage means the ratio
(expressed as a percentage and calculated to the nearest hundredth of a percentage point) of
the Participant’s Contribution Percentage Amounts to the Participant’s Code §414(s)
Compensation for the Plan Year, subject to the following rules:






	 	(a)	 	Highly Compensated Employees in Multiple 401(m) Plans of the Sponsoring Employer.
The Contribution Percentage for any Participant who is a Highly Compensated Employee for
the Plan Year and who is eligible to have Contribution Percentage Amounts allocated to
such Participant’s accounts under two or more Code §401(m) plans that are maintained by
the Sponsoring Employer, will be determined as if the total of such Contribution
Percentage Amounts was made under each 401(m) plan. If a Highly Compensated Employee
participates in two or more Code §401(m) plans of the Sponsoring Employer that have
different plan years, all Contribution Percentage Amounts made during the Plan Year under
all such Code §401(m) plans will be aggregated. For Plan Years beginning prior to 2006
(or the year of such earlier effective date as may be provided in a separate amendment
for implementing the final §401(m) Regulations and as permitted by such Regulations), all
such Code §401(m) plans ending with or within the same calendar year will be treated as a
single Code §401(m) plan. Notwithstanding the foregoing, certain plans will be treated as
separate if mandatorily disaggregated under the Code §401(m) Regulations.
	 
	 	(b)	 	Participants Without Contributions. If no Employee Contributions, Matching
Contributions, Elective Contributions, or Qualified Non-Elective Contributions are taken
into account in the ACP Test with respect to a Participant for the Plan Year, then the
Contribution Percentage of the Participant is zero (0).






	1.43	 	Contribution Percentage Amounts. The term Contribution Percentage Amounts means
the sum of the Employee Contributions, Non-Safe Harbor Matching Contributions, Qualified
Matching Contributions, Elective Deferrals, and Qualified Non-Elective Contributions made
under the Plan on behalf of the Participant for the Plan Year. The calculation of a
Participant’s Contribution Percentage Amounts is subject to the following rules:






	 	(a)	 	Timing of Employee Contributions. An amount withheld from an Employee’s pay (or a
payment by the Employee to a Plan agent) is treated as an Employee Contribution at the
time of withholding (or payment) if the paid funds are transmitted to the Trust within a
reasonable period after withholding (or payment).
	 
	 	(b)	 	Recharacterized Elective Contributions Are Included. Excess Contributions which
are recharacterized in accordance with Regulation §1.401(k)—2(b)(3) are taken into
account as Employee Contributions for the Plan Year that includes the time at which the
Excess Contribution is includible in the gross income of the Employee under Regulation
§1.401(k)—2(b)(3)(ii).
	 
	 	(c)	 	Matching Contributions That Are Included. A Matching Contribution is used in
determining a Participant’s Contribution Percentage Amount for a Plan Year only if each
of the following requirements is satisfied: (1) the contribution is allocated to the
Employee’s Matching Contribution Account under the terms of the Plan as of an allocation
date within that Plan Year; (2) the contribution is made on account of (or the Matching
Contribution is allocated on the basis of) the Participant’s Elective Deferrals or
Employee Contributions for that Plan Year; and (3) the contribution is actually paid to
the Trust no later than the end of the 12-month period immediately following the Plan
Year that contains the allocation date for the Matching Contribution.
	 
	 	(d)	 	Elective Deferrals May Be Included in the Contribution Percentage Amounts. The
Sponsoring Employer also may elect to use Elective Deferrals in the Contribution
Percentage Amounts so long as (a) the ADP Test is met before the Elective Deferrals are
used in the ACP Test, and (b) the ADP Test continues to be met following the exclusion of
the Elective Deferrals used to meet the ACP Test, subject to the following rules: (1)
Elective Deferrals in a Safe Harbor 401(k) Plan described in Regulation §1.401(k)—3
cannot be used as Contribution Percentage Amounts; (2) the plan that provides for
Employee Contributions and/or Matching Contributions and the plan to which the Elective
Deferrals are made are plans that would be permitted to be aggregated under Regulation
§1.401(m)—1(b)(4); and (3) if the Plan Year of the plan that provides for Employee
Contributions and/or Matching Contributions is changed to satisfy the requirement under




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	 	 	 	Regulation §1.410(b)—7(d)(5) that aggregated plans have the same Plan Year, then Elective
Deferrals may be taken into account in the resulting short Plan Year, but only if such
Elective Deferrals could have been taken into account under an ADP Test for a plan with
that same short Plan Year.






	 	(e)	 	Qualified Non-Elective Contributions That May be Used. Qualified Non-Elective
Contributions may be taken into account in determining a Participant’s Contribution
Percentage Amounts for a Plan Year, but only to the extent that the Qualified
Non-Elective Contributions satisfy the following requirements:






	 	(1)	 	Timing of Allocation. The Qualified Non-Elective Contribution is
allocated to the Participant’s Account as of a date within that Plan Year (within the
meaning of Regulation §1.401(k)—2(a)(4)(i)(A)). In order to be used in calculating
the Contribution Percentage Amounts for a Participant who is a Non-Highly Compensated
Employees for an Applicable Plan Year, the Qualified Non-Elective Contribution must
be contributed no later than the end of the 12-month period following the Applicable
Plan Year.
	 
	 	(2)	 	QNECs Must Satisfy Code §401(a)(4). The amount of Qualified
Non-Elective Contributions satisfies the requirements of Code §401(a)(4) and
Regulation §1.401(a)(4)—1(b)(2). If the Sponsoring Employer is applying the special
rule for Employer-wide plans in Regulation §1.414(r)—1(c)(2)(ii) with respect to the
Plan, then the determination of whether the Qualified Non-Elective Contributions
satisfy the requirements of Code §401(a)(4) must be made on an Employer-wide basis,
regardless of whether the plans to which the Qualified Non-Elective Contributions are
made are satisfying the requirements of Code §410(b) on an Employer-wide basis. If
the Sponsoring Employer is treated as operating qualified separate lines of business
and does not apply the special rule for Employer-wide plans in Regulation
§1.414(r)—1(c)(2)(ii) with respect to the Plan, then the determination of whether
the Qualified Non-Elective Contributions satisfy the requirements of Code §401(a)(4)
is not permitted to be made on an Employer-wide basis regardless of whether the plans
to which the Qualified Non-Elective Contributions are made are satisfying the
requirements of Code §410(b) on an Employer-wide basis.
	 
	 	(3)	 	Aggregation Must Be Permitted. The plan that provides for Employee
Contributions and/or Matching Contributions and the plan to which the Qualified
Non-Elective Contributions are made, are plans that would be permitted to be
aggregated under Regulation §1.401(m)—1(b)(4). If the Plan Year of the plan that
provides for Employee Contributions and/or Matching Contributions is changed to
satisfy the requirement under Regulation §1.410(b)—7(d)(5) that aggregated plans
have the same Plan Year, then Qualified Non-Elective Contributions may be taken into
account in the resulting short Plan Year, but only if such Qualified Non-Elective
Contributions could have been taken into account under an ADP Test for a plan with
that same short Plan Year.
	 
	 	(4)	 	Limitation on Disproportionate QNECs. Qualified Non-Elective
Contributions cannot be taken into account as Contribution Percentage Amounts of a
Plan Year for a Non-Highly Compensated Employee to the extent the QNECs exceed the
product of (i) that Non-Highly Compensated Employee’s Code §414(s) Compensation,
multiplied by (i) the greater of (A) 5% (or 10% of a Non-Highly Compensated
Employee’s Code §414(s) Compensation with respect to an Employer’s obligation to make
Prevailing Wage Contributions to the Plan), or (B) two times the Plan’s
Representative Contribution Rate. Any Qualified Non-Elective Contribution used under
an ADP Test under Regulation §1.401(k)—2(a)(6) (including the determination of the
Representative Contribution Rate for purposes of Regulation
§1.401(k)—2(a)(6)(iv)(B)), is not permitted to be taken into account for purposes of
the ACP Test (including the determination of the Representative Contribution Rate for
purposes of the ACP Test).
	 
	 	(5)	 	Prohibition Against Double-Counting. Qualified Non-Elective
Contributions cannot be taken into account for purposes of the Contribution
Percentage Amounts to the extent such contributions are taken into account for
purposes of satisfying any other ACP Test, any ADP Test, or the requirements of
Regulation §1.401(k)—3, §1.401(m)—3 or §1.401(k)—4. Qualified Non-Elective
Contributions that are made pursuant to Regulation §1.401(k)—3(b) cannot be taken
into account under the ACP Test.
	 
	 	(6)	 	Switching the Testing Method. If this Plan switches from the
Current Year Testing Method to the Prior Year Testing Method pursuant to Regulation
§1.401(m)—2(c)(1), Qualified Non-Elective Contributions that are taken into account
under the Current Year Testing Method for a Plan Year may not be taken into account
under the Prior Year Testing Method for the next Plan Year.




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	 	(f)	 	Qualified Matching Contributions Used to Satisfy ADP Test Are Excluded. Qualified
Matching Contributions that are taken into account for the ADP Test of Code §401(k)(3)
under Regulation §1.401(k)—2(a)(6) are not taken into account in determining a
Participant’s Contribution Percentage Amounts.
	 
	 	(g)	 	Forfeited Matching Contributions Are Excluded. Contribution Percentage Amounts
will not include either the non-Vested portion of Matching Contributions that are
forfeited to correct Excess Aggregate Contributions, or Matching Contributions (both the
Vested and non-Vested portions) that are forfeited because they relate to Excess
Deferrals, Excess Contributions, or Excess Aggregate Contributions.
	 
	 	(h)	 	Additional Employee Contributions or Matching Contributions of Code §414(u) Are
Excluded. Contribution Percentage Amounts will not include additional Employee
Contributions and Matching Contributions that are made by reason of a Participant’s
qualified military service under Code §414(u) for the Plan Year for which the
contributions are made, or for any other Plan Year.






	1.44	 	Counting of Hours Method. The term Counting of Hours Method means a method for
crediting service for eligibility, for Vesting, for determining a Participant’s allocation,
and/or for applying the allocation conditions for an Employer contribution or Forfeiture.
Under the Counting of Hours Method, an Employee is credited with the number of Hours of
Service for which the Employee is paid or entitled to payment (or such other circumstances for
which Hours of Service are credited), pursuant to the definition of Hour of Service.
	 
	1.45	 	Current Year Testing Method. The term Current Year Testing Method means the
nondiscrimination testing method in which (a) for purposes of the ADP Test, the ADP for
Participants who are Highly Compensated Employees for the Plan Year that is being tested is
compared to the ADP for Participants who are Non-Highly Compensated Employees for the Plan
Year that is being tested; and (b) for purposes of the ACP Test, the ACP for Participants who
are Highly Compensated Employees for the Plan Year that is being tested is compared to the ACP
for Participants who are Non-Highly Compensated Employees for the Plan Year that is being
tested.
	 
	1.46	 	Deemed Code §125 Compensation. The term Deemed Code §125 Compensation means an
amount that is excludable from the gross income of the Employee under Code §106 and that is
not available to the Employee in cash in lieu of group health coverage under a Code §125
arrangement solely because that Employee is not able to certify that he or she has other
health coverage. Amounts are Deemed Code §125 Compensation only if the Employer does not
otherwise request or collect information regarding the Employee’s other health coverage as
part of the enrollment process for the health plan.
	 
	1.47	 	Deemed IRA Contribution. The term Deemed IRA Contribution means an Individual
Retirement Account contribution made to this Plan.
	 
	1.48	 	Deemed IRA Account. The term Deemed IRA Contribution Account means the account
to which a Participant’s Deemed IRA Contributions are allocated.
	 
	1.49	 	Designated Beneficiary. The term Designated Beneficiary means, for purposes of
required minimum distributions under Section 5.9 of the Plan, the individual who is designated
as the Beneficiary pursuant to the provisions of the Plan and is the Designated Beneficiary
under Code §401(a)(9), the previously final Regulation §1.401(a)(9)-1, Q&A-4, and the final
Regulation §1.401(a)(9)-4.
	 
	1.50	 	Determination Date. The term Determination Date means, for any Plan Year
subsequent to the first Plan Year of the Plan, the last day of the preceding Plan Year. For
the first Plan Year of the Plan, the term “Determination Date” means the last day of that
first Plan Year.
	 
	1.51	 	Disability. The term Disability means a physical or mental impairment arising
after an Employee has become a Participant which, in the opinion of the Social Security
Administration qualifies the participant for disability benefits under the Social Security Act
in effect on the date the Participant suffers the mental or physical impairment.
	 
	1.52	 	Distribution Calendar Year. The term Distribution Calendar Year means, for
purposes of required minimum distributions under Section 5.9, a calendar year for which a
minimum distribution is required. For distributions beginning before the Participant’s death,
the first Distribution Calendar Year is the calendar year immediately preceding the calendar
year that contains the Participant’s Required Beginning Date.




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	1.53	 	Early Retirement Age. There is no Early Retirement Age under the Plan.
	 
	1.54	 	Earned Income. The term Earned Income means the net earnings from
self-employment in the trade or business with respect to which the Plan is established, for
which personal services of the individual are a material income-producing factor. Net earnings
will be determined without regard to items not included in gross income and the deductions
allocable thereto. Net earnings will be reduced by deductible contributions by the Employer to
a qualified retirement plan. Net earnings will be determined with regard to the deduction
allowed to the Employer by Code §164(f) for taxable years beginning after December 31, 1989.
	 
	1.55	 	Elapsed Time Method. The term Elapsed Time Method means a method for crediting
service for eligibility, for Vesting, for determining a Participant’s allocation, and/or for
applying the allocation conditions for an Employer contribution or Forfeiture, pursuant to the
definition of Period of Service.
	 
	1.56	 	Elective Deferral. The term Elective Deferral means Employer contributions made
to the Plan at the election of the Participant in lieu of cash Compensation, and will include
contributions made pursuant to a salary deferral agreement or other deferral mechanism. In any
taxable year, a Participant’s Elective Deferral is the sum of all Employer contributions made
on behalf of such Participant pursuant to an election to defer under (a) any qualified cash or
deferred arrangement under Code §401(k); (b) any salary reduction simplified employee pension
described in Code §408(k)(6); (c) any SIMPLE IRA Plan described in Code §408(p); (d) any plan
under Code §501(c)(18); and (e) any Employer contributions made on the behalf of a Participant
for the purchase of an annuity contract under Code §403(b) pursuant to a Salary Deferral
Agreement. For years beginning after 2005, the term “Elective Deferral” includes Pre-Tax
Elective Deferrals and Roth Elective Deferrals. An Elective Deferral must relate to
Compensation that either (a) would have been received by the Employee in the Plan Year but for
the Employee’s election to defer; or (b) if elected by the Sponsoring Employer for purposes of
the ADP Test, is attributable to services performed by the Employee in the Plan Year and, but
for the Employee’s election to defer, would have been received by the Employee within 21/2
months after the close of the Plan Year. If elected by the Sponsoring Employer for purposes of
the ADP Test, then this Plan will provide for Elective Deferrals that relate to Compensation
that would have been received after the close of a Plan Year to be considered for such prior
Plan Year rather than the Plan Year in which the Compensation would have been received.
	 
	1.57	 	Eligibility Computation Period. The term Eligibility Computation Period means a
period of 12 consecutive months which is used for purposes of eligibility to participate in
the Plan (or a component of the Plan). An Employee’s initial Eligibility Computation Period
will begin on his or her Employment Commencement Date. Each subsequent Eligibility Computation
Period will begin on each anniversary of the Employee’s Employment Commencement Date.
	 
	1.58	 	Eligible Employee. The term Eligible Employee means any Employee who is a member
of an eligible class of Employees and who is not excluded from participating in the Plan (or a
component of the Plan). Furthermore, the Sponsoring Employer may elect at any time to
reclassify any Employee who had been excluded from participating in the Plan (or a component
of the Plan) to be an Eligible Employee through a Plan amendment that is retroactively applied
for one or more prior Plan Years because the Plan (or a component of the Plan) failed to
satisfy for such Plan Year one of the tests set forth in Code §410(b)(1)(A), (B) or (C), or
for any other reason required to maintain the tax exempt status of the Plan.
	 
	1.59	 	Employee. The term Employee means (a) any person who is reported on the payroll
records of the Employer as an employee and who is deemed by the Employer to be a common law
employee; (b) any person who is reported on the payroll records of an Affiliated Employer as
an employee and who is deemed by the Affiliated Employer to be a common law employee (even if
the Affiliated Employer is not an Adopting Employer), except for purposes of determining
eligibility to participate in the Plan; (c) any Self-Employed Individual who derives Earned
Income from the Employer; and (d) any person who is considered a Leased Employee but who (1)
is not covered by a plan described in Code §414(n)(5), or (2) is covered by a plan described
in Code §414(n)(5) but Leased Employees constitute more than 20% of the Employer’s non-highly
compensated workforce. However, the term “Employee” will not include an Independent
Contractor. If an Independent Contractor is later determined by the Employer, a court, or
governmental agency to be an Employee or to have been an Employee of the Employer or an
Affiliated Employer, and so long as such individual is an Eligible Employee, then such
individual will only be eligible to participate in the Plan in accordance with the
requirements of the Employee Plans Compliance Resolution System (EPCRS) under Revenue
Procedure 2006-27 and subsequent guidance.




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	1.60	 	Employee Contribution. The term Employee Contribution means any contribution
made to the Plan by or on behalf of a Participant that is included in the Participant’s gross
income in the year in which the contribution is made (other than Roth Elective Deferrals) and
that is maintained under a separate account to which earnings and losses are allocated.
Employee Contributions include Voluntary Employee Contributions.
	 
	1.61	 	Employer. The term Employer means the Sponsoring Employer and any Adopting
Employer.
	 
	1.62	 	Employment Commencement Date. The term Employment Commencement Date means the
first day that an Employee is credited with an Hour of Service for an Employer or an
Affiliated Employer.
	 
	1.63	 	Equivalent Accrual Rate. The term Equivalent Accrual Rate means the annual
benefit that is the result of normalizing the increase in the Participant’s Account balance
during the measurement period, divided by the number of years in which the Participant
benefited under the Plan during the measurement period, and expressed either as a dollar
amount or as a percentage of the Participant’s average annual Code §414(s) Compensation. A
measurement period that includes future years may not be used. For purposes of determining an
Equivalent Accrual Rate, the following rules apply:






	 	(a)	 	Determination of Account Balance. The increase in the Participant’s Account
balance during the measurement period taken into account does not include income,
expenses, gains, or losses allocated during the measurement period that are attributable
to the Participant’s Account balance as of the beginning of the measurement period, but
does include any additional amounts that would have been included in the increase in the
Participant’s Account balance but for the fact that the additional amounts were
previously distributed (including a reasonable adjustment for interest). If the
measurement period is the current Plan Year, the Sponsoring Employer may also elect to
disregard the income, expenses, gains, and losses allocated during the current Plan Year
that are attributable to the increase in the Participant’s Account balance since the
beginning of the Plan Year, and thus determine the increase in Participant’s Account
balance during the Plan Year taking into account only allocations described in Regulation
§1.401(a)(4)-2(c)(2)(ii). In addition, the Sponsoring Employer may disregard
distributions to a Non-Highly Compensated Employee as well as distributions to any
Employee in Plan Years beginning before a selected date no later than January 1, 1986.
	 
	 	(b)	 	Normalization. The Participant’s Account balance determined under paragraph (a)
is normalized into a single-sum benefit that is immediately and unconditionally payable
to the Employee. A standard interest rate, and a straight life annuity factor that is
based on the same or a different standard interest rate and on a standard mortality
table, must be used in normalizing this benefit. In addition, no mortality may be assumed
prior to the Employee’s testing age.
	 
	 	(c)	 	Options. Any of the optional rules in Regulation §1.401(a)(4)-3(d)(3) (e.g.,
imputation of permitted disparity) may be applied in determining an Employee’s Equivalent
Accrual Rate by substituting the Employee’s Equivalent Accrual Rate (determined without
regard to this option) for the Employee’s Normal Accrual Rate where appropriate. For this
purpose, however, the last sentence of the fresh-start alternative in Regulation
§1.401(a)(4)-3(d)(3)(iii)(A) (dealing with Compensation adjustments to the frozen accrued
benefit) is not applicable. No other options are available in determining an Employee’s
Equivalent Accrual Rate except those (e.g., selection of alternative measurement periods)
specifically provided in this definition. None of the optional special rules in
Regulation §1.401(a)(4)-3(f) (e.g., determination of benefits on other than a Plan Year
basis under Regulation §1.401(a)(4)-3(f)(6)) is available.
	 
	 	(d)	 	Consistency Rule. Equivalent Accrual Rates must be determined in a consistent
manner for all Employees for the Plan Year. The same measurement periods and standard
interest rates must be used, and any available options must be applied consistently if at
all.






	1.64	 	ERISA. The term ERISA means the Employee Retirement Income Security Act of 1974,
as amended, the Department of Labor Regulations, and Advisory Opinions and other rulings
promulgated by the Department of Labor (or any agency thereunder). All citations to sections
of ERISA and the Department of Labor Regulations are to such sections as they may from time to
time be amended or renumbered.
	 
	1.65	 	Excess Annual Additions. The term Excess Annual Additions means an amount of
Annual Additions credited to a Participant’s Account that exceeds the maximum Annual Additions
limitation set forth in Section 6.1 for any Limitation Year. If Excess Annual Additions are
treated according to Section 6.4, then such Excess Annual Additions will not be deemed Annual
Additions.




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	1.66	 	Excess Aggregate Contributions. The term Excess Aggregate Contributions means,
with respect to any Plan Year, the excess of (a) the aggregate Contribution Percentage Amounts
used in computing the numerator of the Contribution Percentage actually made on behalf of
Participants who are HCEs for such Plan Year, over (b) the maximum Contribution Percentage
Amounts permitted by the ACP Test (determined by hypothetically reducing Contribution
Percentage Amounts made on behalf of Participants who are HCEs in order of their Contribution
Percentages beginning with the highest of such Contribution Percentages). Such determination
will be made after first determining Excess Elective Deferrals and then determining Excess
Contributions.
	 
	1.67	 	Excess Contributions. The term Excess Contributions means, with respect to any
Plan Year, the excess of (a) the aggregate amount of Employer contributions actually taken
into account in computing the Actual Deferral Percentage of HCEs for such Plan Year, over (b)
the maximum amount of such contributions permitted by the ADP Test (determined by
hypothetically reducing contributions made on behalf of HCEs in the order of their Actual
Deferral Percentages, beginning with the highest of such percentages).
	 
	1.68	 	Excess Elective Deferrals. The term Excess Elective Deferrals means those
Elective Deferrals of a Participant that either (a) are made during the Participant’s taxable
year and exceed the dollar limitation under Code §402(g) (including, if applicable, the
Catch-up Contribution Limit as defined in Code §414(v)) for such taxable year; or (b) are made
during a calendar year and exceed the dollar limitation under Code §402(g) (including, if
applicable, the Catch-Up Contribution Limit as defined in Code §414(v)) for the Participant’s
taxable year beginning in such calendar year, counting only Elective Deferrals made under this
Plan and any other plan, contract or arrangement maintained by the Sponsoring Employer.
	 
	1.69	 	401(k) Plan. The term 401(k) Plan means a plan which permits the plan’s
participants to have Elective Deferrals made on their behalf to the plan.
	 
	1.70	 	401(m) Plan. The term 401(m) Plan means a plan which permits or requires the
plan’s participants to make Employee Contributions to the plan, and/or which allocates
Matching Contributions to participants in the plan.
	 
	1.71	 	Fiscal Year. The term Fiscal Year means the Sponsoring Employer’s 12 consecutive
month accounting year beginning January 1st and ending the following December 31st. If the
Fiscal Year is changed, a short Fiscal Year is established beginning the day after the last
day of the Fiscal Year in effect before this change and ending on the last day of the new
Fiscal Year.
	 
	1.72	 	Forfeiture. The term Forfeiture means generally the amount by which a
Participant’s Account balance attributable to Employer contributions exceeds his or her Vested
Interest in the Participant’s Account balance attributable to Employer contributions as of the
date set forth in Section 3.11. Furthermore, the term “Forfeiture” means the non-Vested
portion of Matching Contributions that are removed from a Participant’s Account to correct
Excess Aggregate Contributions, and Matching Contributions (both the Vested and non-Vested
portions) removed from a Participant’s Account because such Matching Contributions relate to
Excess Deferrals, Excess Contributions, or Excess Aggregate Contributions. Lastly, the term
“Forfeiture” means any amount that is removed from a Participant’s Account pursuant to any
Employee Plans Compliance Resolution System (EPCRS) program or any other correction guidance
that is issued by the Internal Revenue Service. No Forfeitures will occur solely because (a) a
Participant withdraws Employee Contributions from the Plan; (b) a Participant withdraws
Elective Deferrals from the Plan; or (c) a Participant transfers employment from the
Sponsoring Employer to an Affiliated Employer or Adopting Employer (or vice versa).
	 
	1.73	 	Forfeiture Account. The term Forfeiture Account means the notational bookkeeping
account into which all Forfeitures are placed pending allocation (or other use) pursuant to
Section 3.11(c).
	 
	1.74	 	Form W-2 Compensation. The term Form W-2 Compensation means wages within the
meaning of Code §3401(a) and all other payments of compensation to an Employee by the Employer
(in the course of the Employer’s trade or business) which is actually paid or made available
and is included in the Employee’s gross income for which the Employer is required to furnish
the Employee a Form W-2 under Code §6041(d), §6051(a)(3) and §6052. Form W-2 Compensation must
be determined without regard to any rules under Code §3401(a) that limit remuneration included
in wages based on the nature or location of the employment or services performed (such as the
exception for agricultural labor in Code §3401(a)(2)).




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	1.75	 	Gradually Increasing Age or Service Schedule. The term Gradually Increasing Age
or Service Schedule means, for Plan Years beginning on or after January 1, 2002, that the
allocation formula for all Participants under the Plan provides for a single schedule of
Allocation Rates under which:






	 	(a)	 	Series of Bands. The schedule defines a series of bands based on Age, Years of
Service (or Periods of Service), or the number of points representing the sum of Age and
Years of Service (or Periods of Service) with respect to age and service points, under
which the same Allocation Rate applies to all employees whose Age, Years of Service (or
Periods of Service), or Age and service points are within each band; and
	 
	 	(b)	 	Smoothly Increasing at Regular Intervals. The Allocation Rates under the schedule
increase smoothly at regular intervals, within the following meanings:






	 	(1)	 	Smoothly Increasing Schedule of Allocation Rates. A schedule of
Allocation Rates increases smoothly if the Allocation Rate for each band within the
schedule is greater than the Allocation Rate for the immediately preceding band
(i.e., the band with the next lower number of years of Age, Years of Service (or
Periods of Service), or Age and service points) by no more than 5 percent (5%).
However, a schedule of Allocation Rates will not be treated as increasing smoothly if
the ratio of the allocation rate for any band to the rate for the immediately
preceding band is more than 2.0 or if it exceeds the ratio of Allocation Rates
between the two immediately preceding bands.
	 
	 	(2)	 	Regular Intervals. A schedule of Allocation Rates has regular
intervals of Age, Years of Service (or Periods of Service), or Age and service
points, if each band, other than the band associated with the highest Age, Years of
Service (or Periods of Service), or Age and service points, is the same length. For
this purpose, if the schedule is based on Age, the first band is deemed to be of the
same length as the other bands if it ends at or before age 25. If the first age band
ends after Age 25, then, in determining whether the length of the first band is the
same as the length of other bands, the starting age for the first age band is
permitted to be treated as Age 25 or any Age earlier than 25. For a schedule of
allocation rates based on Age and service points, the rules of the preceding two
sentences are applied by substituting 25 Age and service points for age 25. For a
schedule of allocation rates based on service, the starting service for the first
service band is permitted to be treated as one Year of Service (or Period of Service)
or any lesser amount of service.






	 	(c)	 	Minimum Allocation Rates Permitted. A schedule of Allocation Rates under the Plan
is considered to increase smoothly at regular intervals if a minimum uniform Allocation
Rate is provided for all Participants or the Top Heavy Minimum Allocation described in
Code §416(c)(2) is provided for all Non-Key Employees (either because the Plan is Top
Heavy or without regard to whether the Plan is Top Heavy) if the schedule satisfies one
of the following conditions:






	 	(1)	 	Hypothetical Schedule. The Allocation Rates under the Plan that
are greater than the minimum Allocation Rate can be included in a hypothetical
schedule of Allocation Rates that increases smoothly at regular intervals, where the
hypothetical schedule has a lowest allocation rate no lower than 1% of Code §414(s)
Compensation; or
	 
	 	(2)	 	Schedule of Allocation Rates Based on Age. If the Plan is using a
schedule of Allocation Rates based on Age, for each Age band in the schedule that
provides an Allocation Rate greater than the minimum Allocation Rate, then there
could be a Participant in that Age band with an Equivalent Accrual Rate that is less
than or equal to the Equivalent Accrual Rate that would apply to a Participant whose
Age is the highest Age for which the Allocation Rate equals the minimum Allocation
Rate.






	1.76	 	HCE. The term HCE means a Highly Compensated Employee.
	 
	1.77	 	Highly Compensated Employee. The term Highly Compensated Employee
means any Employee who (a) was a 5% owner as defined in Code §416(i)(1)(B)(i) at any time
during the Plan Year or during the look-back year. In determining whether an Employee is a
Highly Compensated Employee based on his or her status as a 5% owner, the look-back year will
be the 12-month period immediately preceding the Plan Year for which the determination is
being made; or (b) for the look-back year, had Code §415(c)(3) Compensation in excess of
$80,000 as adjusted under Code §415(d) (except that the base period will be the calendar
quarter ending September 30, 1996). In determining if an Employee is a Highly Compensated
Employee based on Code §415(c)(3) Compensation, the look-back year will be the 12-month period
immediately preceding the Plan Year for which the determination is




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	 	 	being made, and the top paid group election in Code §414(q)(3) will not be applied. In
determining if an individual is a highly compensated former Employee, the rules for
determining which Employees are Highly Compensated Employees for the Plan Year for which the
determination is being made (in accordance with Temporary Regulation §1.414(q)-1T, A-4 and
Notice 97-45) will be applied. If the Employer maintains more than one qualified retirement
plan, this Section will be applied in a uniform, consistent manner to all such plans.






	1.78	 	Hour of Service. The term Hour of Service means, with respect to any provision
of the Plan in which service is determined by the elapsed time method, each hour for which an
Employee is paid, or is entitled to payment, by the Employer or an Affiliated Employer for the
performance of duties. With respect to any provision of the Plan in which service is
determined by counting an Employee’s Hours of Service, the meaning of the term Hour of Service
will be determined in accordance with the following provisions:






	 	(a)	 	Determination of Hours. The term Hour of Service means (1) each hour for which an
Employee is paid, or entitled to payment, for the performance of duties for the Employer
or an Affiliated Employer, which will be credited to the Employee for the computation
period in which the duties are performed; (2) each hour for which an Employee is paid, or
entitled to payment, by the Employer or an Affiliated 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 no more
than 501 Hours of Service will be credited under this clause (2) for any single
continuous period (regardless of whether such period occurs in a single computation
period); and (3) each hour for which back pay, irrespective of mitigation of damages, is
either awarded or agreed to by the Employer or an Affiliated Employer, except that the
same Hours of Service will not be credited both under clause (1) or clause (2), as the
case may be, and under this clause (3), and these Hours of Service will be credited to
the Employee for the computation period or periods to which the award or agreement
pertains rather than the computation period in which the award, agreement or payment is
made. Hours of Service under this paragraph will be calculated and credited pursuant to
Department of Labor Regulation §2530.200b-2, which is incorporated herein by reference.
Furthermore, Hours of Service will be credited for any individual who is considered to be
an Employee under Code §414(n) for purposes of this Plan.
	 
	 	(b)	 	Maternity or Paternity Leave. Solely for purposes of determining whether a Break
in Service has occurred in a computation period for purposes of an Employee’s eligibility
for Plan participation, Vesting, and benefit accrual/allocation, an individual on
Maternity or Paternity Leave will receive credit for up to 501 Hours of Service which
would otherwise have been credited to such individual but for such absence, or in any
case in which such hours cannot be determined, eight (8) Hours of Service per day of such
absence. The Hours of Service credited for a Maternity or Paternity Leave will be
credited in the computation period in which the absence begins if the crediting is
necessary to prevent a Break in Service in that computation period, or in all other
cases, in the following computation period.
	 
	 	(c)	 	Use of Equivalencies. Notwithstanding paragraph (a), the Administrator may elect
for all Employees or for one or more different classifications of Employees (provided
such classifications are reasonable, are consistently applied, and are nondiscriminatory)
to apply one or more of the following equivalency methods in determining an Employee’s
Hours of Service. Under such equivalency methods, an Employee will be credited with (1)
190 Hours of Service for each month that he or she is credited with at least one Hour of
Service during that month; (2) 95 Hours of Service for each semi-monthly period that he
or she is credited with at least one Hour of Service during that semi-monthly period; (3)
45 Hours of Service for each week that he or she is credited with at least one Hour of
Service during that week; and/or (4) 10 Hours of Service for each day that he or she is
credited with at least one Hour of Service during that day.






	1.79	 	Hypothetical Entry Date. The term Hypothetical Entry Date means, with respect to
a Plan (or a component of a Plan) that provides that Otherwise Excludable Participants are
eligible to participate in the Plan (or component of the Plan), the date that an Otherwise
Excludable Participant would hypothetically enter the Plan (or component of the Plan) and
would no longer be considered an Otherwise Excludable Participant had the Plan (or component
of the Plan) used the statutory maximum age and service requirements of Code §410(a)(1)(A) as
the eligibility requirements for the Plan (or component of the Plan). The Hypothetical Entry
Date for purposes of this Plan is the Employee’s maximum statutory entry date under Code
§410(a)(4) after the Employee satisfies the maximum statutory age and service requirements
under Code §410(a)(1)(A).




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	1.80	 	Immediately Distributable. The term Immediately Distributable means any part of
the Participant’s benefit that could be distributed to the Participant (or the Participant’s
surviving Spouse) before the Participant reaches (or would have reached if not deceased) the
later of his or her Normal Retirement Age or Age 62.
	 
	1.81	 	Independent Contractor. The term Independent Contractor means an individual who
is not reported on the payroll records of the Employer or an Affiliated Employer as a common
law employee. The determination of whether an individual is an Independent Contractor will be
based upon the facts and circumstances and upon the guidance of Revenue Ruling 87-41.
	 
	1.82	 	Key Employee. The term Key Employee means, in determining whether the Plan is
Top Heavy for Plan Years beginning on or after January 1, 2002, any Employee, former Employee
or deceased Employee who at any time during the Plan Year that includes the Determination Date
is (a) an officer of the Employer having annual Code §415(c)(3) Compensation greater than
$130,000 (as adjusted under Code §416(i)(1)(A) for Plan Years beginning after December 31,
2002); (b) a 5% owner as defined in Code §416(i)(1)(B)(i); or (c) a 1% owner as defined in
Code §416(i)(1)(B)(ii) whose annual Code §415(c)(3) Compensation is more than $150,000. The
determination of who is a Key Employee will be made in accordance with Code §416(i)(1), the
applicable Regulations, and other guidance issued thereunder. With respect to Employees who
are treated as Key Employees by reason of being officers pursuant to clause (a), the following
rules apply:






	 	(a)	 	Definition of Officer. The term “officer” means generally an administrative
executive who is in regular and continued service (a continuity of service), and excludes
an individual who is employed for a special and single transaction. Whether an individual
is an officer will be determined upon the basis of all the facts and circumstances,
including the source of the individual’s authority, the term for which the individual is
elected or appointed, and the nature and extent of the individual’s duties. An Employee
who merely has the title of an officer but not the authority of an officer is not an
officer for purposes of determining whether the Employee is a Key Employee. Similarly, an
Employee who does not have the title of an officer but has the authority of an officer is
an officer for purposes of determining whether the Employee is a Key Employee.
	 
	 	(b)	 	Number of Officers Taken Into Account. There is no minimum number of officers
that must be taken into account. After aggregating all Employees (including Leased
Employees) of the Sponsoring Employer and Affiliated Employers, there is a maximum limit
to the number of officers that are to be taken into account as officers for the entire
group consisting of the Sponsoring Employer and Affiliated Employers. The number of
Employees that the Sponsoring Employer and Affiliated Employers has for the Plan Year
containing the Determination Date is the greatest number of Employees the Sponsoring
Employer and Affiliated Employers had during that Plan Year, and Employees include only
those individuals who perform services for the Sponsoring Employer and Affiliated
Employers during that Plan Year. However, in determining the number of officers taken
into account, Employees described in Code §414(q)(5) will be excluded. If the number of
Employees (including part-time Employees) of the Sponsoring Employer and Affiliated
Employers is less than or equal to 30 Employees, then no more than 3 Employees will be
treated as Key Employees for the Plan Year containing the Determination Date by reason of
being officers. If the number of Employees of the Sponsoring Employer and Affiliated
Employers is greater than 30 but less than or equal to 500, then no more than 10% of the
number of Employees will be treated as Key Employees by reason of being officers. If 10%
of the number of Employees is not an integer, then the maximum number of individuals to
be treated as Key Employees by reason of being officers will be increased to the next
integer. If the number of Employees of the Sponsoring Employer and Affiliated Employers
exceeds 500, then no more than 50 Employees will be treated as Key Employees for the Plan
Year containing the Determination Date by reason of being officers. This limited number
of officers is comprised of the individual officers, selected from the group of all
individuals who are officers in the Plan Year containing the Determination Date, who have
annual Code §415(c)(3) Compensation during the Plan Year containing the Determination
Date greater than $130,000 (as adjusted under Code §416(i)(1) for Plan Years beginning
after December 31, 2002), and who had the largest annual Code §415(c)(3) Compensation
during the Plan Year containing the Determination Date.






	1.83	 	Leased Employee. The term Leased Employee means any person (other than an
Employee of the recipient-Employer) who pursuant to an agreement between the
recipient-Employer and other person (known as the “Leasing Organization”) has performed
services for the recipient-Employer (or for the recipient-Employer and related persons
determined in accordance with Code §414(n)(6)) on a substantially full time basis for a period
of at least one year, and such services are performed under primary direction or control by
the recipient-Employer. Contributions or benefits provided to a Leased Employee by the Leasing
Organization attributable to services performed for the recipient-Employer will be treated as
provided by the recipient-Employer. A Leased Employee




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	 	 	will not be considered an Employee of the recipient-Employer if (a) the Leased Employee is
covered by a money purchase plan providing (1) a non-integrated Employer contribution of at
least 10% of the Leased Employee’s Code §415(c)(3) Compensation; (2) immediate participation;
and (3) full and immediate vesting; and (b) Leased Employees do not constitute more than 20%
of the recipient-Employer’s non-highly compensated work force.






	1.84	 	Life Expectancy. The term Life Expectancy means, for purposes of required
minimum distributions under Section 5.9, life expectancy as computed by use of the Single Life
Table in Regulation §1.401(a)(9)-9, Q&A 1.
	 
	1.85	 	Limitation Year. The term Limitation Year means the Plan Year. If the Limitation
Year is amended to a different 12-consecutive month period, then the new Limitation Year must
begin on a date within the Limitation Year in which the amendment is made.
	 
	1.86	 	Matching Contribution. The term Matching Contribution means either (a) an ADP
Safe Harbor Matching Contribution; (b) an ACP Safe Harbor Matching Contribution; (c) a
Qualified Matching Contribution; or (d) a Non-Safe Harbor Matching Contribution, depending on
the context in which the term is used in the Plan.
	 
	1.87	 	Matching Contribution Account. The term Matching Contribution Account means the
sub-account to which a Participant’s Matching Contributions are allocated.
	 
	1.88	 	Matching Rate. The term Matching Rate means:






	 	(a)	 	Matching Contributions With Respect to Elective Deferrals. If the Plan provides a
Matching Contribution with respect to a Participant’s Elective Deferrals (but not
Employee Contributions), then generally the Non-Safe Harbor Matching Contributions made
for a Participant divided by the Participant’s Elective Deferrals for the Plan Year. If
the Matching Rate is not the same for all levels of Elective Deferrals for a Participant,
the Participant’s Matching Rate is determined by assuming that a Participant’s Elective
Deferrals are equal to 6% of such Participant’s Code §414(s) Compensation.
	 
	 	(b)	 	Matching Contributions With Respect to Elective Deferrals and Employee
Contributions. If the Plan provides a Matching Contribution with respect to a
Participant’s Employee Contributions and Elective Deferrals, then generally the Non-Safe
Harbor Matching Contributions made for a Participant divided by the sum of the
Participant’s Employee Contributions and Elective Deferrals for the Plan Year. If the
Matching Rate is not the same for all levels of Employee Contributions and Elective
Deferrals for a Participant, the Participant’s Matching Rate is determined by assuming
that the sum of a Participant’s Employee Contributions and Elective Deferrals is equal to
6% of the Participant’s Code §414(s) Compensation.
	 
	 	(c)	 	Matching Contributions With Respect to Employee Contributions. If the Plan
provides a Matching Contribution with respect to a Participant’s Employee Contributions
(but not Elective Deferrals), then generally the Non-Safe Harbor Matching Contributions
made for a Participant divided by the Participant’s Employee Contributions for the Plan
Year. If the Matching Rate is not the same for all levels of Employee Contributions for a
Participant, the Participant’s Matching Rate is determined by assuming that a
Participant’s Employee Contributions are equal to 6% of such Participant’s Code §414(s)
Compensation.






	1.89	 	Maternity or Paternity Leave. The term Maternity or Paternity Leave means an
Employee’s absence from work because of (a) the Employee’s pregnancy; (b) the birth of the
Employee’s child; (c) the placement of a child with the Employee in connection with the
adoption of such child by the Employee; or (d) the need to care for such child for a period
beginning immediately following the child’s birth or placement as set forth above.
	 
	1.90	 	Minimum Aggregate Allocation Gateway. The term Minimum Aggregate Allocation
Gateway means, for Plan Years beginning on or after January 1, 2002, in the case where this
Plan (or any other defined contribution plan that is aggregated with this Plan) is aggregated
with any defined benefit plan for purposes of applying the general test for non-discrimination
based upon Equivalent Accrual Rates for the defined contribution plan(s), a minimum Aggregate
Normal Allocation Rate that must be provided to each Non-Highly Compensated Employee.
Notwithstanding the above, in determining the Benefiting Participants for purposes of the
Minimum Aggregate Allocation Gateway, the permissive disaggregation rules under Regulation
§1.410(b)-6(b)(3)(ii) and §1.410(b)-7(c)(3) will be applied. The Minimum Aggregate Allocation
Gateway is subject to the following rules:




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	 	(a)	 	Minimum Aggregate Allocation Gateway Amount. The amount of the Minimum Aggregate
Allocation Gateway is equal to the lesser of (1) 7.5% of Code §415(c)(3) Compensation; or
(2) an Aggregate Normal Allocation Rate based upon the following formula:






	 	(1)	 	One-Third Formula. If the Aggregate Normal Allocation Rate of the
HCE with the highest aggregate allocation rate is less than 15%, then the Aggregate
Normal Allocation Rate for each NHCE must be at least one-third (1/3) of the
Aggregate Normal Allocation Rate of the HCE with the highest Aggregate Normal
Allocation Rate.
	 
	 	(2)	 	5% Formula. If the Aggregate Normal Allocation Rate of the HCE
with the highest Aggregate Normal Allocation Rate is between 15% and 25%, then the
Aggregate Normal Allocation Rate for each NHCE must be at least 5% of Code §415(c)(3)
Compensation.
	 
	 	(3)	 	5% Plus Formula. If the Aggregate Normal Allocation Rate of the
HCE with the highest Aggregate Normal Allocation Rate exceeds 25%, then the Aggregate
Normal Allocation Rate for each NHCE must be at least 5% plus one percentage point
for each five percentage point increment (or portion thereof) by which the Aggregate
Normal Allocation Rate of the HCE with the highest Aggregate Normal Allocation Rate
exceeds 25% (e.g., if the Aggregate Normal Allocation Rate of the HCE with the
highest Aggregate Normal Allocation Rate exceeds 25% but not 30%, then the Aggregate
Normal Allocation Rate for each NHCE must be at least 6%; if the Aggregate Normal
Allocation Rate of the HCE with the highest Aggregate Normal Allocation Rate exceeds
30% but not 35%, then the Aggregate Normal Allocation Rate for each NHCE must be at
least 7%).






	 	(b)	 	Averaging of Equivalent Allocation Rates for NHCEs. For purposes of this
definition, the Plan is permitted to treat each Non-Highly Compensated Employee who
benefits under the defined benefit plan as having an equivalent normal allocation rate
equal to the average of the equivalent normal allocation rates under the defined benefit
plan for all Non-Highly Compensated Employees benefiting under that plan.
	 
	 	(c)	 	No Permitted Disparity. For purposes of this definition, the Aggregate Normal
Allocation Rate must not take into account the imputation of permitted disparity under
Regulation §1.401(a)(4)-7.
	 
	 	(d)	 	Compensation Limited to Compensation After Entry Date. For purposes of
determining if the Minimum Aggregate Allocation Gateway of paragraph (a) has been
satisfied, Code §415(c)(3) Compensation will be limited to the Participant’s Code
§415(c)(3) Compensation on and after a Participant’s Entry Date of the Plan’s component
subject to the Minimum Aggregate Allocation Gateway.
	 
	 	(e)	 	Treatment of Otherwise Excludable Participants. For purposes of the Minimum
Aggregate Allocation Gateway, Otherwise Excludable Participants will not be considered.






	1.91	 	Minimum Allocation Gateway. The term Minimum Allocation Gateway means, for Plan
Years beginning on or after January 1, 2002, a minimum allocation that must be provided to
each Non-Highly Compensated Employee who receives an allocation of any Non-Elective
Contribution (including any ADP Safe Harbor Non-Elective Contribution) or any Qualified
Non-Elective Contribution under this Plan (or any other defined contribution plan that is
aggregated with this Plan) that performs the general test for non-discrimination based upon
Equivalent Accrual Rates as set forth in Regulation §1.401(a)(4)-8. Notwithstanding the above,
in determining the Benefiting Participants for purposes of the Minimum Allocation Gateway, the
permissive disaggregation rules under Regulation §1.410(b)-6(b)(3)(ii) and §1.410(b)-7(c)(3)
will be applied. The Minimum Allocation Gateway is subject to the following rules:






	 	(a)	 	Minimum Allocation Gateway Satisfied So Long As This Plan Is Not Aggregated With Any
Defined Benefit Plan. The Minimum Allocation Gateway can be utilized so long as
neither this Plan nor any other defined contribution plan (that is aggregated with this
Plan) is aggregated with any defined benefit plan in applying the general test for
non-discrimination based upon Equivalent Accrual Rates for the defined contribution
plan(s). If this Plan or any other defined contribution plan (that is aggregated with
this Plan) is aggregated with any defined benefit plan for purposes of applying the
general test for non-discrimination based upon Equivalent Accrual Rates for the defined
contribution plan(s), then the Minimum Allocation Gateway pursuant to this definition
will not satisfy the requirements of Regulation §1.401(a)(4)-9.




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	 	(b)	 	Minimum Allocation Gateway Amount. The amount of the Minimum Allocation Gateway
is equal to the lesser of (1) five percent (5%) of the Participant’s Code §415(c)(3)
Compensation; or (2) one-third of the Allocation Rate of the Highly Compensated Employee
with the highest Allocation Rate.
	 
	 	(c)	 	Satisfaction of Minimum Allocation Gateway. The Minimum Allocation Gateway may be
satisfied with any Non-Elective Contributions (including any ADP Safe Harbor Non-Elective
Contributions) or any Qualified Non-Elective Contributions.
	 
	 	(d)	 	No Permitted Disparity. For purposes of this definition, allocations and
Allocation Rates must not take into account the imputation of permitted disparity under
§1.401(a)(4)-7.
	 
	 	(e)	 	Compensation Limited to Compensation After Entry Date. For purposes of
determining if the Minimum Allocation Gateway of paragraph (b) has been satisfied, Code
§415(c)(3) Compensation will be limited to the Participant’s Code §415(c)(3) Compensation
on and after a Participant’s Entry Date of the Plan’s component subject to the Minimum
Allocation Gateway.
	 
	 	(f)	 	Treatment of Otherwise Excludable Participants. For purposes of the Minimum
Allocation Gateway, Otherwise Excludable Participants will not be considered.






	1.92	 	Named Fiduciary. The term Named Fiduciary means the Administrator or other
fiduciary named by the Administrator to control and manage the operation and administration of
the Plan. To the extent authorized by the Administrator, a Named Fiduciary may delegate its
responsibilities to a third party or parties. The Employer is also a Named Fiduciary.
	 
	1.93	 	NHCE. The term NHCE means a Non-Highly Compensated Employee.
	 
	1.94	 	Non-Elective Contribution. The term Non-Elective Contribution means an ADP Safe
Harbor Non-Elective Contribution, and/or a Non-Safe Harbor Non-Elective Contribution,
depending on the context in which the term is used in the Plan. Furthermore, the term
Non-Elective Contribution means any Top Heavy Minimum Allocation that may be required under
the terms of the Plan.
	 
	1.95	 	Non-Highly Compensated Employee. The term Non-Highly Compensated Employee means
any Employee who is not a Highly Compensated Employee.
	 
	1.96	 	Non-Key Employee. The term Non-Key Employee means any Employee who is not a Key
Employee. A former Key Employee (a Key Employee during any Plan Year prior to the Plan Year
that includes the Determination Date) is a Non-Key Employee for purposes of determining
whether such former Key Employee is required to receive a Top Heavy Minimum Allocation;
however, a former Key Employee is ignored for purposes of determining whether the Plan is Top
Heavy.
	 
	1.97	 	Non-Safe Harbor 401(k) Plan. The term Non-Safe Harbor 401(k) Plan means a 401(k)
Plan which does not automatically satisfy the ADP Test under Code §401(k).
	 
	1.98	 	Non-Safe Harbor 401(m) Plan. The term Non-Safe Harbor 401(m) Plan means a 401(m)
Plan which does not automatically satisfy the ADP Test under Code §401(m).
	 
	1.99	 	Non-Safe Harbor Matching Contribution. The term Non-Safe Harbor Matching
Contribution means an Employer contribution made to this or any other defined contribution
plan on behalf of a Participant on account of a Participant’s Elective Deferrals and/or a
Participant’s Voluntary Employee Contributions made by such Participant under a plan
maintained by the Sponsoring Employer. Non-Safe Harbor Matching Contributions are not intended
to automatically satisfy the ACP Test.
	 
	1.100	 	Non-Safe Harbor Matching Contribution Account. The term Non-Safe Harbor
Matching Contribution Account means the account to which a Participant’s Non-Safe Harbor
Matching Contributions are allocated.
	 
	1.101	 	Non-Safe Harbor Non-Elective Contribution. The term Non-Safe Harbor
Non-Elective Contribution means an Employer contribution that (a) is allocated to a
Participant’s Non-Safe Harbor Non-Elective Contribution Account, (b) the Participant may not
elect to receive in cash until such contributions are distributed from the Plan; and (c) is
not intended to be used to automatically satisfy the ADP Test.




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	1.102	 	Non-Safe Harbor Non-Elective Contribution Account. The term Non-Safe Harbor
Non-Elective Contribution Account means the account to which a Participant’s Non-Safe Harbor
Non-Elective Contributions are allocated.
	 
	1.103	 	Normal Accrual Rate. The term Normal Accrual Rate means, for a Participant for
a Plan Year, the increase in the Participant’s accrued benefit (within the meaning of Code
§411(a)(7)(A)(i)) during the measurement period, divided by the Participant’s testing service
during the measurement period, and expressed either as a dollar amount or as a percentage of
the Participant’s average annual Code §414(s) Compensation.
	 
	1.104	 	Normal Form of Distribution. The term Normal Form of Distribution means the
form in which a Participant’s benefit will be distributed absent an election to the contrary,
as set forth in Sections 5.1, 5.3 and 5.4.
	 
	1.105	 	Normal Retirement Age. The term Normal Retirement Age means Age 65. There is no
mandatory retirement Age under the terms of the Plan.
	 
	1.106	 	Normal Retirement Date. The term Normal Retirement Date means the same date a
Participant reaches Normal Retirement Age.
	 
	1.107	 	Otherwise Excludable Participant. The term Otherwise Excludable Participant
means a Participant in the Plan (or a component of the Plan) who (a) has not satisfied the
statutory maximum age and service requirements set forth in Code §410(a)(1)(A), and (b) has
not reached such Participant’s Hypothetical Entry Date.
	 
	1.108	 	Optional Form of Distribution. The term Optional Form of Distribution means a
form of distribution other than the Normal Form of Distribution as set forth in Sections 5.1,
5.3 and 5.4.
	 
	1.109	 	Participant. The term Participant means anyone who has met the eligibility and
participation requirements under Article 2 of the Plan. In addition, if the Plan utilizes the
failsafe allocation provisions of Section 3.13, then the term Participant means any Employee
who receives a failsafe allocation, even if such Employee is not an Eligible Employee and/or
has not satisfied the eligibility and participation requirements of the Plan. Furthermore, the
Sponsoring Employer may elect at any time to reclassify any Employee who had been excluded
from participating in the Plan (or a component of the Plan) to be a Participant through a Plan
amendment that is retroactively applied for one or more prior Plan Years because the Plan (or
a component of the Plan) failed to satisfy for such Plan Year one of the tests set forth in
Code §410(b)(1)(A), (B) or (C), or for any other reason required to maintain the tax exempt
status of the Plan. However, an individual who is no longer an Employee will cease to be a
Participant if his or her entire Plan benefit (a) is fully guaranteed by an insurance company
and legally enforceable at the sole choice of such individual against such insurance company,
provided that a contract, Policy, or certificate describing the individual’s Plan benefits has
been issued to such individual; (b) is paid in a lump sum distribution which represents such
individual’s entire interest in the Plan; or (c) is paid in some other form of distribution
and the final payment thereunder has been made.
	 
	1.110	 	Participant’s Account. The term Participant’s Account means the account to
which is allocated a Participant’s share of Employer contributions and Employee Contributions;
earnings or losses; and, if applicable, Forfeitures. A Participant’s Account will also include
the proceeds of any Policies purchased on the Participant’s life under Section 7.2. Each
Participant’s Account will be divided (where applicable) into the following sub-accounts for
accounting purposes: the Pre-Tax Elective Deferral Account; the Roth Elective Deferral
Account; the Non-Safe Harbor Matching Contribution Account; the Non-Safe Harbor Non-Elective
Contribution Account; the Qualified Matching Contribution Account; the Qualified Non-Elective
Contribution Account; the ADP Safe Harbor Matching Contribution Account; the ADP Safe Harbor
Non-Elective Contribution Account; the ACP Safe Harbor Matching Contribution Account; the
Voluntary Employee Contribution Account; the Mandatory Employee Contribution Account; the
Deemed IRA Contribution Account; the Rollover Contribution Account; the Transfer Account; and
any other sub-accounts the Administrator may determine necessary from time to time.
	 
	1.111	 	Participant’s Account Balance. The term Participant’s Account Balance means,
for purposes of required minimum distributions under Section 5.9, the balance of the
Participant’s Account as of the last Valuation Date in the Valuation Calendar Year, increased
by any contributions made and allocated or forfeitures allocated to the Account as of dates in
the Valuation Calendar Year after the Valuation Date and decreased by distributions made in
the Valuation Calendar Year after the Valuation Date. The Participant’s Account Balance for
the Valuation Calendar Year includes any amounts rolled over or transferred to the Plan either
in the Valuation Calendar Year or in the Distribution Calendar Year if distributed or
transferred in the Valuation Calendar Year.




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	1.112	 	Period of Service. The term Period of Service means, with respect to any
provision of the Plan in which service is determined by the Elapsed Time Method, a period of
time during which the Employee is employed with the Employer or an Affiliated Employer (or any
business entity which was an Adopting Employer) commencing on an Employee’s Employment
Commencement Date or Reemployment Commencement Date and ending on the date that the Employee’s
Period of Severance begins, and a 1-Year Period of Service and all other Periods of Service
will be determined in accordance with the following provisions:






	 	(a)	 	Definition of Period of Severance and 1-Year Period of Severance. The term Period
of Severance means a continuous period of time during which the Employee is not employed
by the Employer. A Period of Severance begins on the earlier of (1) the date on which an
Employee retires, dies, quits or is discharged from employment by the Employer or an
Affiliated Employer, or (2) the first anniversary of the first date on which an Employee
remains absent from service with the Employer or an Affiliated Employer (with or without
pay) for any reason other than the Employee retiring, dying, quitting or being discharged
from employment by the Employer or an Affiliated Employer, such as for vacation, holiday,
illness, incapacity (including disability), layoff, jury duty, military duty or leave of
absence. However, in the case of an Employee who is absent from work for Maternity or
Paternity Leave, the 12-consecutive month period beginning on the first anniversary of
the first date of such absence under clause (2) of the previous sentence will not
constitute a Period of Severance. A Period of Severance ends as of an Employee’s
Reemployment Commencement Date. The term 1-Year Period of Severance means a
12-consecutive month Period of Severance during which an Employee fails to perform an
Hour of Service.
	 
	 	(b)	 	Hours of Service During a Period of Severance. If an Employee performs an Hour of
Service during a period which would otherwise be considered a Period of Severance under
paragraph (a), then the Plan must count such period as a Period of Service and the
Employee will receive credit for such Period of Service.
	 
	 	(c)	 	Definition of 1-Year Period of Service. The term 1-Year Period of Service means a
12-consecutive month Period of Service. An Employee will receive credit for Periods of
Service of less than 12-consecutive months by aggregating (subject to the limitations
below) all non-successive Periods of Service and all Periods of Service which are
fractional years or which do not constitute a whole 1-Year Period of Service, regardless
of whether consecutive. Fractional periods of a year are expressed in terms of days, on
the basis that a day of service is credited if an Employee is credited with an Hour of
Service during such day, and on the basis that 12 months of service (30 days being deemed
to be a month of service in the case of the aggregation of fractional months of service)
or 365 days of service equals a 1-Year Period of Service. An Employee will also be
credited for all purposes, as applicable, with a fractional Period of Service for any
Period of Severance that is less than a 1-Year Period of Severance.
	 
	 	(d)	 	Prior Service Credit. For purposes of determining an Employee’s eligibility to
participate in the Plan under Section 2.1 and determining an Employee’s vesting under
Section 4.6, an Employee who was employed by After Hours Formalwear, Inc. on April 9,
2007, shall also receive for a computation period an Hour of Service credit for each
“Hour of Service” (as that term was defined in the After Hours Formalwear Profit Sharing
Plan) that was credited to such Employee under the After Hours Formalwear Profit Sharing
Plan as of April 9, 2007.
	 
	 	(e)	 	Reemployment of an Employee Before a Break In Service and Before Eligibility
Requirements Are Satisfied. For any Plan Year in which the eligibility requirements
in Section 2.1 are based on the Elapsed Time Method, if an Employee Terminates Employment
with the Employer prior to satisfying the eligibility requirements in Section 2.1 and the
Employee is subsequently reemployed by the Employer before incurring a Break in Service,
then the Employee’s pre-termination Period of Service will be counted in determining the
satisfaction of such eligibility requirements and for all other purposes, as applicable.
Furthermore, the Employee will also be credited for all purposes, as applicable, with a
fractional Period of Service for any Period of Severance that is less than a 1-Year
Period of Severance. If the Employee has satisfied the eligibility requirements in
Section 2.1 when such fractional Period of Service of the previous sentence is added to
such Employee’s pre-termination Period of Service, then the Employee will become a
Participant in the Plan as of the later of (1) the date that the Employee would enter the
Plan had the Employee not Terminated Employment with the Employer, or (2) the Employee’s
Reemployment Commencement Date.
	 
	 	(f)	 	Re-employment of an Employee Before a Break In Service and After Eligibility
Requirements Are Satisfied. For any Plan Year in which the eligibility requirements
in Section 2.1 are based on the Elapsed




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	 	 	 	Time Method, if an Employee Terminates Employment prior to the Employee’s Entry Date in
Section 2.1, the Employee had satisfied the eligibility requirements in Section 2.1 as of
the Employee’s Termination of Employment, and the Employee is subsequently reemployed by
the Employer before incurring a Break in Service, then (1) the Employee will become a
Participant as of the later of (A) the date the Employee would enter the Plan had the
Employee not Terminated Employment with the Employer, or (B) the Employee’s Reemployment
Commencement Date, and (2) the Employee’s pre-termination Period of Service will be
counted for all purposes. The Employee will also be credited for all purposes, as
applicable, with a fractional Period of Service for any Period of Severance less than a
1-Year Period of Severance.






	 	(g)	 	Reemployment of a Participant Before a Break In Service. For any Plan Year in
which the eligibility requirements in Section 2.1 are based on the Elapsed Time Method,
if an Employee Terminates Employment after becoming a Participant and is subsequently
reemployed by the Employer before incurring a Break in Service, then (1) the reemployed
Employee will reenter the Plan as of the Employee’s Reemployment Commencement Date, and
(2) the Employee’s pre-termination Period of Service will be counted for all purposes, as
applicable. Furthermore, the Employee will also be credited for all purposes, as
applicable, with a fractional Period of Service for any Period of Severance that is less
than a 1-Year Period of Severance.
	 
	 	(h)	 	Reemployment of an Employee After a Break In Service and Before the Entry Date.
For any Plan Year in which the eligibility requirements in Section 2.1 are based on the
Elapsed Time Method, if an Employee Terminates Employment with the Employer either prior
to or after satisfying the eligibility requirements in Section 2.1 (but before the
Employee’s Entry Date in Section 2.1) and the Employee is subsequently reemployed by the
Employer after incurring a Break in Service, then the Employee’s Period of Service that
was completed prior to the Break in Service will be recognized, subject to the following
provisions:






	 	(1)	 	Determination of Period of Service for Eligibility Purposes. Any
Period of Service that was completed prior to an Employee’s Break(s) in Service will
not be counted in determining an Employee’s eligibility to participate in the Plan if
that Period of Service is disregarded pursuant to the Rule of Parity. If such former
Employee’s Period of Service is disregarded under the Rule of Parity, then the
reemployed Employee will be treated as a new Employee for purposes of Section 2.1 as
of the Employee’s Reemployment Commencement Date. If the Employee has not satisfied
the eligibility requirements in Section 2.1 as of the Employee’s Reemployment
Commencement Date and such former Employee’s Period of Service is not disregarded
under the Rule of Parity, then the Employee will become a Participant in the Plan as
of the Entry Date in Section 2.1 after the Employee has satisfied the eligibility
requirements in Section 2.1. If the Employee has satisfied the eligibility
requirements in Section 2.1 as of the Employee’s Reemployment Commencement Date and
such former Employee’s Period of Service is not disregarded under the Rule of Parity,
then the reemployed Employee will enter the Plan as of the Employee’s Reemployment
Commencement Date.
	 
	 	(2)	 	Determination of Period of Service for Vesting Purposes. Any
Period of Service completed prior to an Employee’s Break(s) in Service will not be
counted in determining an Employee’s Vesting Interest in the Participant’s Account
balance if that Period of Service is disregarded pursuant to the Rule of Parity. If
such former Employee’s Period of Service is disregarded under the Rule of Parity,
then the reemployed Employee will be treated as a new Employee for purposes of
determining an Employee’s Vesting Interest in the Participant’s Account balance as of
the Employee’s Reemployment Commencement Date.
	 
	 	(3)	 	Determination of Period of Service for Benefit Accrual/Allocation
Purposes. Any Period of Service completed prior to an Employee’s Break(s) in
Service will not be counted for benefit accrual or allocation purposes if that Period
of Service is disregarded pursuant to the Rule of Parity. If such former Employee’s
Period of Service is disregarded under the Rule of Parity, then the reemployed
Employee will be treated as a new Employee for benefit accrual or allocation purposes
as of the Employee’s Reemployment Commencement Date.






	 	(i)	 	Reemployment of a Participant After a Break In Service. With respect to any
provision of the Plan in which service is determined by the Elapsed Time Method, if an
Employee (1) was a Participant in the Plan, (2) Terminates Employment with the Employer,
and (3) is subsequently reemployed by the Employer after incurring a Break in Service,
then the Employee’s Period of Service that was completed prior to the Break in Service
will be recognized, subject to the following provisions:




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	 	(1)	 	Determination of Period of Service for Eligibility Purposes. Any
Period of Service completed prior to an Employee’s Break(s) in Service will not be
counted in determining an Employee’s eligibility to participate in the Plan if that
Period of Service is disregarded under the Rule of Parity. If such former Employee’s
Period of Service is disregarded under the Rule of Parity, the reemployed Employee
will be treated as a new Employee for purposes of Section 2.1 as of the Employee’s
Reemployment Commencement Date. If such former Employee’s Period of Service is not
disregarded under the Rule of Parity, the reemployed Employee will reenter the Plan
as of the Employee’s Reemployment Commencement Date.
	 
	 	(2)	 	Determination of Period of Service for Vesting Purposes. Any
Period of Service completed prior to an Employee’s Break(s) in Service will not be
counted in determining an Employee’s Vesting Interest in the Participant’s Account
balance if that Period of Service is disregarded pursuant to the Rule of Parity. If
such former Employee’s Period of Service is disregarded under the Rule of Parity,
then the reemployed Employee will be treated as a new Employee for purposes of
determining an Employee’s Vesting Interest in the Participant’s Account balance as of
the Employee’s Reemployment Commencement Date.
	 
	 	(3)	 	Determination of Period of Service for Benefit Accrual/Allocation
Purposes. Any Period of Service completed prior to an Employee’s Break(s) in
Service will not be counted for benefit accrual or allocation purposes if that Period
of Service is disregarded pursuant to the Rule of Parity. If such former Employee’s
Period of Service is disregarded under the Rule of Parity, then the reemployed
Employee will be treated as a new Employee for benefit accrual or allocation purposes
as of the Employee’s Reemployment Commencement Date.






	 	(j)	 	Ignoring Service for Eligibility If Service Requirement for Eligibility Is More Than a
1-Year Period of Service. Notwithstanding anything in the Plan to the contrary, if
this Plan (or a component of the Plan) at any time provides that (1) an Employee must
complete more than either a 1-Year Period of Service or a 12-month Period of Service for
eligibility purposes, and (2) such Employee will have a 100% Vested Interest in the
Participant’s Account (or the sub-Account that relates to such component) upon becoming a
Participant in the Plan, then with respect to an Employee who incurs a Break in Service
before satisfying such eligibility requirement, the Employee’s Period of Service that was
completed prior to the Employee’s Break(s) in Service will not be counted for eligibility
purposes.






	1.113	 	Period of Severance. See the definition Period of Service in Section 1.112
above.
	 
	1.114	 	Permissive Aggregation Group. The term Permissive Aggregation Group means a
group consisting of the Required Aggregation Group plus any other plan or plans of the
Employer which, when considered as a group with the Required Aggregation Group, would continue
to satisfy the requirements of Code §401(a)(4) and §410.
	 
	1.115	 	Plan. The term Plan means The Men’s Wearhouse, Inc. 401(k) Savings Plan, as
amended from time to time.
	 
	1.116	 	Plan Year. The term Plan Year means the Plan’s 12 consecutive month accounting
year beginning January 1st and ending the following December 31st. If the Plan Year is
changed, a short Plan Year will be established beginning the day after the last day of the
Plan Year in effect before the change and ending on the last day of the new Plan Year.
	 
	1.117	 	Policy. The term Policy means a life insurance policy or annuity contract
purchased by the Plan pursuant to the provisions of Section 7.2 of the Plan.
	 
	1.118	 	Post-Severance Compensation. The term Post-Severance Compensation means the
following amounts that are paid within 21/2 months after an Employee’s Termination of
Employment: (a) payments that, absent a Termination of Employment, would have been paid to the
Employee while the Employee continued in employment with the Employer and are regular
compensation for services during the Employee’s regular working hours, compensation for
services outside the employee’s regular working hours (such as overtime or shift
differential), commissions, bonuses, or other similar compensation; and (b) payments for
accrued bona fide sick, vacation, or other leave, but only if the Employee would have been
able to use the leave if employment had continued. Any other payment that is not described in
clause (a) above and clause (b) above is not considered Post-Severance Compensation if paid
after Termination of Employment, even if it is paid within 21/2 months following Termination of
Employment; for example, Post-Severance Compensation does not include amounts paid after
Termination of




-24-









 






	 	 	Employment that are severance pay, unfunded nonqualified deferred compensation, or parachute
payments within the meaning of Code §280G(b)(2). However, the rule of the prior sentence does
not apply to payments to an individual who does not currently perform services for the
Employer by reason of qualified military service (as that term is used in Code §414(u)(1)) to
the extent those payments do not exceed the amounts the individual would have received if the
individual had continued to perform services for the Employer rather than entering qualified
military service; those payments are considered Compensation.






	1.119	 	Pre-Tax Elective Deferral. The term Pre-Tax Elective Deferral means an Elective
Deferral that is not includible in gross income at the time deferred.
	 
	1.120	 	Pre-Tax Elective Deferral Account. The term Pre-Tax Elective Deferral Account
means the sub-account of a Participant’s Account to which his or her Pre-Tax Elective
Deferrals are allocated.
	 
	1.121	 	Primarily Defined Benefit in Character. The term Primarily Defined Benefit in
Character means, for Plan Years beginning on or after January 1, 2002, a combination of
defined benefit plan(s) and defined contribution plan(s) in which, for more than 50% of
Non-Highly Compensated Employees benefiting under the combination of defined benefit and
defined contribution plans, the Normal Accrual Rate for the Non-Highly Compensated Employees
which is attributable to benefits provided by the defined benefit plan(s) that are part of the
combination exceeds the Equivalent Accrual Rate for the Non-Highly Compensated Employees which
is attributable to contributions under the defined contribution plan(s) that are part of the
combination.
	 
	1.122	 	Prior Year Testing Method. The term Prior Year Testing Method means the
nondiscrimination testing method in which (a) for purposes of the ADP Test, the ADP for
Participants who are HCEs for the Plan Year being tested is compared to the ADP for
Participants who are NHCEs for the Plan Year prior to the Plan Year being tested; and (b) for
purposes of the ACP Test, the ACP for Participants who are HCEs for the Plan Year being tested
is compared to the ACP for Participants who are NHCEs for the Plan Year prior to the Plan Year
being tested.






	1.123	 	QJSA. The term QJSA means a Qualified Joint and Survivor Annuity.
	 
	1.124	 	QMAC. The term QMAC means a Qualified Matching Contribution.
	 
	1.125	 	QMAC Account. The term QMAC Account means a Qualified Matching Contribution Account.
	 
	1.126	 	QNEC. The term QNEC means a Qualified Non-Elective Contribution.
	 
	1.127	 	QNEC Account. The term QNEC Account means a Qualified Non-Elective Contribution Account.
	 
	1.128	 	QPSA. The term QPSA means a Qualified Pre-Retirement Survivor Annuity.
	 
	1.129	 	Qualified Joint and Survivor Annuity. The term Qualified Joint and Survivor
Annuity means, with respect to a Participant who is married on the Annuity Starting Date and
has not died before such date, an immediate annuity for the life of the Participant with a
survivor benefit for the life of the Participant’s surviving Spouse which is not less than 50%
nor more than 100% of the annuity that is payable during the joint lives of the Participant
and his or her Spouse and which is the amount of benefit which can be purchased with the
Participant’s Vested Aggregate Account balance. The survivor benefit will be 50% unless a
higher percentage is elected by the Participant at the time that the Qualified Joint and
Survivor Annuity is to be distributed. With respect to a Participant who is not married on the
Annuity Starting Date and has not died before such date, the term “Qualified Joint and
Survivor Annuity” means an immediate annuity for his or her life.
	 
	1.130	 	Qualified Matching Contribution. The term Qualified Matching Contribution means
an Employer contribution made to this or any other defined contribution plan on behalf of a
Participant on account of Elective Deferrals, Voluntary Employee Contributions, and/or
Mandatory Employee Contributions made by such Participant under a plan maintained by the
Sponsoring Employer, that is subject to the distribution (but financial hardship distributions
are not permitted) and nonforfeitability requirements of Code §401(k) when made to the Plan.
Qualified Matching Contributions are available for either the ADP Test or the ACP Test.
Qualified Matching Contributions may be used to satisfy the Top Heavy Minimum Allocation
requirement pursuant to Section 3.12(e). Qualified Matching Contributions can only be
distributed upon the earliest to occur of the following dates: (a) a Participant Terminates
Employment (separates from service, for Plan Years beginning before 2002) with the Employer;
(b) a Participant dies; (c) a Participant suffers a Disability; (d) an event that is described
in




-25-









 






	 	 	Code §401(k)(10) occurs; or (e) a Participant reaches Age 591/2 (if on or before such date, a
pre-retirement in-service withdrawal of Qualified Matching Contributions is permitted under
Section 5.17). With respect to clause (d) of the prior sentence, Qualified Matching
Contributions can be distributed (in a lump sum only) upon termination of the Plan, so long as
the Sponsoring Employer (or an Affiliated Employer) does not maintain an alternative defined
contribution plan at any time during the period beginning on the date of Plan termination and
ending 12 months after all assets have been distributed from the terminated Plan. However, if
at all times during the 24-month period beginning 12 months before the date of Plan’s
termination, fewer than 2% of the Employees who were eligible to participate in the 401(k)
Plan as of the date of the Plan’s termination are eligible to participate in the other defined
contribution plan, the other defined contribution plan is not an alternative defined
contribution plan. In addition, a defined contribution plan is not an alternative defined
contribution plan if the defined contribution plan is an employee stock ownership plan as
defined in Code §4975(e)(7) or Code §409(a), a simplified employee pension as defined in Code
§408(k), a SIMPLE IRA plan as defined in Code §408(p), a plan or contract that is described in
Code §403(b), or a plan that is described in Code §457(b) or Code §457(f).






	1.131	 	Qualified Matching Contribution Account. The term Qualified Matching
Contribution Account means the sub-account of a Participant’s Account to which his or her
Qualified Matching Contributions are allocated.
	 
	1.132	 	Qualified Non-Elective Contribution. The term Qualified Non-Elective
Contribution means an Employer contribution (other than a Matching Contribution or a Qualified
Matching Contribution) that is allocated to Participant’s Account and that satisfies the
following requirements: (a) a Qualified Non-Elective Contribution may be used for the purpose
of satisfying either the ADP or ACP Test; (b) a Participant may not elect to receive a
Qualified Non-Elective Contribution in cash until distributed from the Plan; (c) a Qualified
Non-Elective Contribution is subject to the distribution (but financial hardship distributions
are not permitted) and nonforfeitability requirements of Code §401(k) when made to the Plan.
Qualified Non-Elective Contributions may be used to satisfy the Top Heavy Minimum Allocation
requirement under Section 3.12(e). Any allocation formula for a Qualified Non-Elective
Contribution must satisfy the additional requirements in Regulation §1.401(k)-2(a)(6) in order
to be used in the ADP Test and Regulation §1.401(m)-2(a)(6) in order to be used in the ACP
Test. Qualified Non-Elective Contributions can only be distributed upon the earliest to occur
of the following dates: (a) a Participant Terminates Employment (separates from service, for
Plan Years beginning before 2002) with the Employer; (b) a Participant dies; (c) a Participant
suffers a Disability; (d) an event that is described in Code §401(k)(10) occurs; or (e) a
Participant reaches Age 591/2 (if on or before such date, a pre-retirement in-service withdrawal
of Qualified Non-Elective Contributions is permitted under Section 5.17). With respect to
clause (d) of the prior sentence, Qualified Non-Elective Contributions can be distributed (in
a lump sum only) upon Plan termination so long as the Sponsoring Employer (or an Affiliated
Employer) does not maintain an alternative defined contribution plan at any time during the
period beginning on the date of Plan termination and ending 12 months after all assets have
been distributed from the terminated Plan. However, if at all times during the 24-month period
beginning 12 months before the date of Plan termination, fewer than 2% of the Employees who
were eligible to participate in the 401(k) Plan as of the date of Plan termination are
eligible to participate in the other defined contribution plan, the other defined contribution
plan is not an alternative defined contribution plan. A defined contribution plan is also not
an alternative defined contribution plan if the defined contribution plan is an employee stock
ownership plan as defined in Code §4975(e)(7) or Code §409(a), a simplified employee pension
as defined in Code §408(k), a SIMPLE IRA plan as defined in Code §408(p), a plan or contract
that is described in Code §403(b), or a plan described in Code §457(b) or §457(f).
	 
	1.133	 	Qualified Non-Elective Contribution Account. The term Qualified Non-Elective
Contribution Account means the sub-account of a Participant’s Account to which Qualified
Non-Elective Contributions are allocated.
	 
	1.134	 	Qualified Pre-Retirement Survivor Annuity. The term Qualified Pre-Retirement
Survivor Annuity means a survivor annuity for the life of a deceased Participant’s surviving
Spouse which is equal to the amount of benefit which can be purchased by 100% of the deceased
Participant’s Vested Aggregate Account determined at the date of death. In determining a
Participant’s Vested Aggregate Account hereunder, any security interest held by the Plan
because of a loan outstanding to the Participant will be taken into consideration and, if
applicable, the Participant’s own deductible contributions made for Plan Years prior to
January 1, 1989 will be disregarded.
	 
	1.135	 	Reemployment Commencement Date. The term Reemployment Commencement Date means the
first day on which an Employee performs an Hour of Service for an Employer or an Affiliated
Employer following the Employee’s Termination of Employment.




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	1.136	 	Regulation. The term Regulation means any regulation as promulgated by the Secretary of the
Treasury or delegates of the Treasury Department, as amended and/or renumbered from time to
time. If this Plan references a regulation that is promulgated by any other Department,
Agency, Commission, or other federal entity, then the name of such Department, Agency,
Commission, or other federal entity will be referenced with such regulation.






	1.137	 	Representative Contribution Rate. The term Representative Contribution Rate means the lowest Applicable Contribution Rate
of any Participant who is a NHCE among a group of Participants who are NHCEs that consists of
half of all Participants who are NHCEs for the Plan Year (or, if greater, the lowest
Applicable Contribution Rate of any Participant who is a NHCE in the group of all Participants
who are NHCEs for the Plan Year and who is employed by the Sponsoring Employer on the last day
of the Plan Year).






	1.138	 	Representative Matching Rate. The term Representative Matching Rate means the following:






	 	(a)	 	Matching Contributions With Respect to Elective Deferrals. If the Plan
provides a Matching Contribution with respect to a Participant’s Elective Deferrals, then
the lowest Matching Rate for any Participant who is a NHCE among a group of Participants
who are NHCEs that consists of half of all Participants who are NHCEs in the Plan for the
Plan Year who make Elective Deferrals for the Plan Year (or, if greater, the lowest
Matching Rate for all Participants who are NHCEs in the Plan who are employed by the
Sponsoring Employer on the last day of the Plan Year and who make Elective Deferrals for
the Plan Year).
	 
	 	(b)	 	Matching Contributions With Respect to Elective Deferrals and Employee
Contributions. If the Plan provides a Matching Contribution with respect to the sum
of a Participant’s Employee Contributions and Elective Deferrals, then the lowest
Matching Rate for any Participant who is a NHCE among a group of Participants who are
NHCEs that consists of half of all Participants who are NHCEs in the Plan for the Plan
Year who make either Employee Contributions or Elective Deferrals for the Plan Year (or,
if greater, the lowest Matching Rate for all Participants who are NHCEs in the Plan who
are employed by the Sponsoring Employer on the last day of the Plan Year and who make
either Employee Contributions or Elective Deferrals for the Plan Year).
	 
	 	(c)	 	Matching Contributions With Respect to Employee Contributions. If the Plan
provides a Matching Contribution with respect to a Participant’s Employee Contributions
(but not Elective Deferrals), then the lowest Matching Rate for any Participant who is a
NHCE among a group of Participants who are NHCEs that consists of half of all
Participants who are NHCEs in the Plan for the Plan Year who make Employee Contributions
for the Plan Year (or, if greater, the lowest Matching Rate for all Participants who are
NHCEs in the Plan who are employed by the Sponsoring Employer on the last day of the Plan
Year and who make Employee Contributions for the Plan Year).






	1.139	 	Required Aggregation Group. The term Required Aggregation Group means a group consisting of (a) each qualified plan
of the Employer in which at least one Key Employee participates or participated at any time
during the Plan Year containing the Determination Date or any of the four preceding Plan Years
(regardless of whether the plan has terminated); and (b) any other qualified plan of the
Employer which enables a plan described in clause (a) above to satisfy the requirements of
Code §401(a)(4) or §410.
	 
	1.140	 	Required Beginning Date. The term Required Beginning Date means, with respect to a Participant who is a 5% owner
as defined in Code §416(i)(1)(B)(i), April 1st of the calendar year following the calendar
year in which the Participant reaches Age 701/2. With respect to Participants who are not 5%
owners, Required Beginning Date means April 1st of the calendar year following the later of
the calendar year in which the Participant reaches Age 701/2 or the calendar year in which the
Participant actually retires, subject to paragraphs (a), (b) and (c) below:






	 	(a)	 	Election to Defer Distribution. Any Participant (other than a 5% owner)
who attains Age 701/2 in years after 1995 may elect by April 1 of the calendar year
following the year in which the Participant attains Age 701/2 (or by December 31, 1997 in
the case of a Participant who attains Age 701/2 in 1996), to defer distributions until
April 1 of the calendar year following the calendar year in which the Participant
retires. If no such
election is made, the Participant will begin receiving distributions by April 1 of the
calendar year following the calendar year in which the Participant attains Age 701/2.
	 
	 	(b)	 	Election to Suspend Distribution. Any Participant (other than a 5% owner)
who attains age 701/2 in years prior to 1997 may elect to stop distributions and then
recommence such distributions by April 1 of the calendar year following the calendar year
in which the Participant retires. In such an event, the Administrator




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	 	 	 	may, on a uniform
non-discriminatory basis, elect that a new Annuity Starting Date will begin upon the
Participant’s distribution recommencement date.






	 	(c)	 	Elimination of Pre-Retirement Age 701/2 Distribution Option. The
pre-retirement Age 701/2 distribution option will only be eliminated for Employees who
reach Age 701/2 in or after a calendar year that begins after the later of December 31,
1998, or the adoption date of this amended Plan. The pre-retirement Age 701/2 distribution
option is an optional form of benefit under which benefits payable in a particular
distribution form (including any modifications that may be elected after benefit
commencement) begin at a time during the period that begins on or after January 1st of
the calendar year in which an Employee reaches Age 701/2 and ends April 1 of the
immediately following calendar year.






	1.141	 	Rollover . The term Rollover means a Rollover Contribution.
	 
	1.142	 	Rollover Contribution. The term Rollover Contribution means an amount which is eligible for tax free rollover
treatment and is transferred to this Plan from one or more of the plans the Sponsoring
Employer elects, which plans, effective as of January 1, 2002 (or such later date pursuant to
written procedures established and adopted by the Administrator), may include (a) a qualified
plan under Code §401(a); (b) a qualified annuity plan under Code §403(a); (c) a qualified
annuity under Code §403(b); (d) an individual retirement account under Code §408(a), without
regard to whether the individual retirement account is a “conduit individual retirement
account”; (e) an individual retirement annuity under Code §408(b), without regard to whether
the individual retirement annuity is a “conduit individual retirement annuity”; and (f) an
eligible plan under Code §457(b) 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. If
this Plan accepts a Rollover Contribution of Roth Elective Deferrals, it will separately
account for the Roth Elective Deferrals and for any prior (and subsequent) earnings or losses
attributable to such Roth Elective Deferrals. A direct or indirect transfer as defined in Code
§401(a)(11) of assets from a defined benefit plan, a money purchase plan, a target benefit
plan, a stock bonus plan, or a profit sharing plan that provided for a life annuity form of
payment to the Participant will not be considered a Rollover Contribution, but will be
considered a Transfer Contribution. Similarly, any Elective Deferrals (including QNECs, QMACs,
and ADP Safe Harbor Contributions) which are transferred to this Plan in a direct or indirect
trustee-to-trustee transfer from another qualified plan and which are subject to the
limitations in Regulation §1.401(k)-1(d) will not be considered a Rollover Contribution but a
Transfer Contribution.
	 
	1.143	 	Rollover Contribution Account. The term Rollover Contribution Account means the account to which a Participant’s
Rollover Contributions, if any, are allocated.
	 
	1.144	 	Rollover Participant. The term Rollover Participant means an Employee who has made a Rollover Contribution
into the Plan but who is not eligible to participate in any other component of the Plan.
	 
	1.145	 	Roth Elective Deferral. The term Roth Elective Deferral means a Participant’s Elective Deferral that (a) is
includible in the Participant’s gross income at the time that the Elective Deferral is
deferred, and (b) has been irrevocably designated as a Roth Elective Deferral by the
Participant in his or her deferral election.
	 
	1.146	 	Roth Elective Deferral Account. The term Roth Elective Deferral Account means the account into which a Participant’s
Roth Elective Deferrals are allocated and deposited. No contributions other than Roth Elective
Deferrals and properly attributable earnings will be credited to each Participant’s Roth
Elective Deferral Account; and gains, losses and other credits or charges will be allocated on
a reasonable and consistent basis to such Roth Elective Deferral Account. The Plan will
maintain a record of the amount of Roth Elective Deferrals in each Participant’s Roth Elective
Deferral Account. Distributions from a Participant’s Roth Elective Deferral Account (other
than corrective distributions)
are not includible in the Participant’s gross income if the distribution is made after 5 years
and after the Participant’s death, disability, or age 591/2. Earnings on corrective
distributions of Roth Elective Deferrals are includible in the Participant’s gross income in
the same manner as earnings on corrective distributions of Pre-tax Elective Deferrals;
however, corrective distributions of Roth Elective Deferrals are not includible in the
Participant’s gross income.
	 
	1.147	 	Rule of Parity. The term Rule of Parity means a rule that is used for purposes of determining an
Employee’s eligibility to participate in the Plan, Vesting, and benefit accrual/allocation (if
applicable) to determine the Year(s) of Service or 1-Year Period(s) of Service of a non-Vested
Employee who Terminates Employment and is subsequently reemployed by the Employer after
incurring a Break in Service, determined as follows: Year(s) of Service or 1-Year Period(s) of
Service, as applicable, completed prior to the Employee’s Break(s) in Service will




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	 	 	not be
counted if the Employee’s total number of consecutive Break(s) in Service equals or exceeds
the greater of (a) five, or (b) the Employee’s aggregate number of Year(s) of Service or
1-Year Period(s) of Service, as applicable, credited prior to incurring the Break(s) in
Service. In computing an Employee’s aggregate number of Year(s) of Service or 1-Year Period(s)
of Service under this Section, Year(s) of Service or 1-Year Period(s) of Service, as
applicable, previously disregarded under prior applications of the Rule of Parity will not be
counted.






	1.148	 	Safe Harbor Code §415 Compensation. The term Safe Harbor Code §415 Compensation means an Employee’s compensation as
determined under Regulation §1.415-2(d)(10), to wit: Earned Income, wages, salaries, fees for
professional services and other amounts received (without regard to whether or not an amount
is paid in cash) for personal services actually rendered in the course of employment with the
Sponsoring Employer maintaining the Plan to the extent that the amounts are includable in
gross income (including, but not limited to, commissions paid salespersons, compensation for
services based on a percentage of profits, commissions on insurance premiums, tips, bonuses,
fringe benefits, and reimbursements, or other expense allowances under a non-accountable plan
as described in Regulation §1.62-2(c)). Safe Harbor Code §415 Compensation includes amounts
paid or made available to the Employee. An Employee’s Safe Harbor Code §415 Compensation will
be determined in accordance with the following provisions:






	 	(a)	 	Exclusion of Certain Amounts. Safe Harbor Code §415 Compensation does not
include the following: (1) Employer contributions made by the Employer to a plan of
deferred compensation to the extent that, before the application of the Code §415
limitations to that plan, the contributions are not includible in the Employee’s gross
income for the taxable year in which contributed; Employer contributions made on behalf
of an Employee to a simplified employee pension described in Code §408(k) for the taxable
year in which contributed; and any distributions from a plan of deferred compensation
for Code §415 purposes, regardless of whether such amounts are includible in the
Employee’s gross income when distributed; (2) Amounts realized from the exercise of a
non-qualified stock option, or when restricted stock (or property) held by an Employee
either becomes freely transferable or is no longer subject to a substantial risk of
forfeiture; (3) Amounts realized from the sale, exchange or other disposition of stock
acquired under a qualified stock option; and (4) Other amounts which receive special tax
benefits, such as premiums for group-term life insurance (but only to the extent that the
premiums are not includible in the gross income of the employee), or contributions made
by an Employer (whether or not under a salary deferral agreement) towards the purchase of
an annuity described in Code §403(b) (regardless of whether such the contributions are
excludible from an Employee’s gross income).
	 
	 	(b)	 	Inclusion of Certain Amounts. Safe Harbor Code §415 Compensation includes
any elective deferral as defined in Code §402(g)(3) and any amount which is contributed
or deferred by the Employer at the election of the Employee which are not includible in
gross income by reason of Code §125 (including Deemed Code §125 Compensation), Code
§132(f)(4), or Code §457.
	 
	 	(c)	 	Treatment of Post-Severance Compensation. Effective January 1, 2005, Safe
Harbor Code §415 Compensation includes Post-Severance Compensation.






	1.149	 	Safe Harbor 401(k) Contribution. The term Safe Harbor 401(k) Contribution means, collectively or separately, depending
on the context in which the term is used, an ACP Safe Harbor Matching Contribution, an ADP
Safe Harbor Matching Contribution, and/or an ADP Safe Harbor Non-Elective Contribution.
	 
	1.150	 	Safe Harbor 401(k) Plan.  The term Safe Harbor 401(k) Plan means a 401(k) Plan which automatically satisfies the
ADP Test under Code §401(k), pursuant to Section 3.16.
	 
	1.151	 	Safe Harbor 401(m) Plan. The term Safe Harbor 401(m) Plan means a 401(m) Plan which automatically satisfies the
ACP Test under Code §401(m), pursuant to Section 3.17.
	 
	1.152	 	Safe Harbor Notice. The term Safe Harbor Notice means a written notice provided by the Employer to all
Eligible Employees in accordance with Regulation §1.401(k)-3(d) and/or §1.401(m)-3(e) and
complies with the requirements of Section 3.16 and/or 3.17. In addition to any other election
periods that may be provided under the Plan, each Eligible Employee may make an initial
Elective Deferral election or modify a prior Elective Deferral election during the 30-day
period immediately following his or her receipt of a Safe Harbor Notice.
	 
	1.153	 	Safe Harbor Participant. The term Safe Harbor Participant means each Employee who satisfies all of the following
conditions: (a) the Employee is an Eligible Employee for Safe Harbor 401(k) Contribution
purposes as




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	 	 	set forth in a Safe Harbor 401(k) Addendum; (b) the Employee has satisfied the age
and/or service requirements for Safe Harbor 401(k) Contribution purposes as set forth in a
Safe Harbor 401(k) Addendum (unless such requirements have been waived with respect to the
Employee as set forth in a Safe Harbor 401(k) Addendum; (c) the Employee has entered the Plan
as a Participant for Safe Harbor 401(k) Contribution purposes as set forth in a Safe Harbor
401(k) Addendum; and (d) the Employee is eligible to make an Elective Deferral to the Plan at
any time during the Plan Year or would be eligible to make Elective Deferrals but for a
suspension due to a financial hardship distribution or a statutory limitation (such as the
limits of Code §402(g) or §415).






	1.154	 	Self-Employed Individual. The term Self-Employed Individual means an individual who owns an interest in the
Employer (other than a stock interest) and has Earned Income for the taxable year from the
trade or business for which the Plan is established or would have had Earned Income but for
the fact that the trade or business had no net profits for the taxable year.
	 
	1.155	 	Service. The term Service means Years of Service when the Counting of Hours Method is being used
and Periods of Service when the Elapsed Time Method is being used.
	 
	1.156	 	Sponsor Stock. The term Sponsor Stock means the common stock of the Sponsoring
Employer.
	 
	1.157	 	Sponsoring Employer. The term Sponsoring Employer means The Men’s Wearhouse, Inc. (and any successor thereto
that elects to assume sponsorship of this Plan).
	 
	1.158	 	Spousal. The term Spousal means of, or related to, a Spouse.
	 
	1.159	 	Spouse. The term Spouse means the person to whom a Participant is legally married. Furthermore,
a former Spouse will be treated as the Participant’s Spouse or surviving Spouse to the extent
provided under a qualified domestic relations order as described in Code §414(p).
	 
	1.160	 	Statutory Code §415 Compensation. The term Statutory Code §415 Compensation means, in applying the Code §415 limits, an
Employee’s compensation as determined under Regulation §1.415-2(d)(2) and (3), to wit:






	 	(a)	 	Amounts Includable as Statutory Code §415 Compensation. Statutory Code
§415 Compensation includes all of the following: (1) wages, salaries, fees for
professional services and other amounts received (without regard to whether or not an
amount is paid in cash) for personal services actually rendered in the course of
employment with the Sponsoring Employer maintaining the Plan to the extent that the
amounts are includable in gross income (including, but not limited to, commissions paid
salespersons, compensation for services based on a percentage of profits, commissions on
insurance premiums, tips, bonuses, fringe benefits,
and reimbursements, or other expense allowances under a non-accountable plan as described
in Regulation §1.62-2(c)); (2) in the case of a Self-Employed Individual, Earned Income;
(3) amounts described in Code §104(a)(3), §105(a) and 105(h), but only to the extent these
amounts are includible in the gross income of the Employee; (4) amounts paid or reimbursed
by the Employer for moving expenses incurred by the Employee, but only to the extent that
at the time of the payment it is reasonable to believe that these amounts are not
deductible by the Employee under Code §217; (5) the value of a non-qualified stock option
granted to an Employee by the Employer, but only to the extent that the value of the
option is includible in the gross income of the Employee for the taxable year in which
granted; and (6) the amount includible in the gross income of an Employee upon making the
election described in Code §83(b). Clauses (1) and (2) above include foreign earned income
(as defined in Code §911(b)), regardless of whether excludible from gross income under
Code §911. Compensation determined under clause (1) above is to be determined without
regard to the exclusions from gross income in Code §931 and §933. Similar principles are
to be applied with respect to income subject to Code §931 and §933 in determining
compensation described in clause (2). Statutory Code §415 Compensation includes amounts
paid or made available to the Employee.
	 
	 	(b)	 	Exclusion of Certain Amounts. Statutory Code §415 Compensation does not
include (1) Employer contributions made by the Employer to a plan of deferred
compensation to the extent that, before the application of the Code §415 limitations to
that plan, the contributions are not includible in the Employee’s gross income for the
taxable year in which contributed; Employer contributions made on behalf of an Employee
to a simplified employee pension described in Code §408(k) for the taxable year in which
contributed; and any distributions from a plan of deferred compensation for Code §415
purposes, regardless of whether such amounts are includible in the Employee’s gross
income when distributed; (2) amounts realized from the exercise of a non-qualified stock
option, or when restricted stock (or property) held by an




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	 	 	 	Employee either becomes freely
transferable or is no longer subject to a substantial risk of forfeiture; (3) amounts
realized from the sale, exchange or other disposition of stock acquired under a qualified
stock option; and (4) other amounts which receive special tax benefits, such as premiums
for group-term life insurance (but only to the extent that the premiums are not
includible in the gross income of the employee), or contributions made by an Employer
(whether or not under a salary deferral agreement) towards the purchase of an annuity
described in Code §403(b) (regardless of whether such the contributions are excludible
from an Employee’s gross income).






	 	(c)	 	Inclusion of Certain Amounts. Statutory Code §415 Compensation includes
any elective deferral as defined in Code §402(g)(3) and any amount which is contributed
or deferred by the Employer at the election of the Employee which are not includible in
gross income by reason of Code §125 (including Deemed Code §125 Compensation), Code
§132(f)(4), or Code §457.
	 
	 	(d)	 	Treatment of Post-Severance Compensation. Effective January 1, 2005,
Statutory Code §415 Compensation includes Post-Severance Compensation.






	1.161	 	Substantially Equal. The term Substantially Equal means a series of installment payments in which a single
installment payment is equal to the Participant’s Account balance as of the most recent
Valuation Date divided by the remaining duration of the installment payments; or such other
method to determine a series of installment payments that are substantially equal that may be
established by the Administrator.
	 
	1.162	 	Terminated (or Terminates) Employment. The terms Terminated Employment and Terminates Employment mean that a person has
incurred a Termination of Employment.
	 
	1.163	 	Terminated Participant. The term Terminated Participant means a Participant who has Terminated Employment for
reasons other than retirement, death or Disability.
	 
	1.164	 	Termination of Employment. The term Termination of Employment means that a person ceases to be an Employee with
the Employer or an Affiliated Employer, taking into account the following: (1) the existence
of a controlled group; (2) the existence of an affiliated service group; (3) whether the
person has gone to work for an Adopting Employer; (4) whether the person’s new employer has
been substituted as the sponsor of the Plan (or a spun-off portion of the Plan); and
(5) whether there has been a transfer of Plan assets and liabilities of the person’s benefits
from this Plan to a plan sponsored by the person’s new employer.
	 
	1.165	 	Top Heavy. The term Top Heavy means for the Plan Year containing the Determination Date that (a)
the Top Heavy Ratio for this Plan exceeds 60% and this Plan is not part of any Required
Aggregation Group or Permissive Aggregation Group; or (b) this Plan is a part of a Required
Aggregation Group but not part of a Permissive Aggregation Group and the Top Heavy Ratio for
the Required Aggregation Group exceeds 60%; or (c) this Plan is a part of a Required
Aggregation Group and part of a Permissive Aggregation Group and the Top Heavy Ratio for the
Permissive Aggregation Group exceeds 60%.
	 
	1.166	 	Top Heavy Minimum Allocation. The term Top Heavy Minimum Allocation means an amount of Employer contributions and
Forfeitures that is subject to the following rules:






	 	(a)	 	DB Plan not Part of Required Aggregation Group or Permissive Aggregation Group
with This Plan. If a defined benefit plan is not part of a Required Aggregation
Group or a Permissive Aggregation Group with this Plan, then the Top Heavy Minimum
Allocation equals an Employee’s Code §415(c)(3) Compensation multiplied by the lesser of
(1) three percent (3%), or (2) the largest percentage of Employer contributions
(including any Elective Deferrals made on behalf of a Key Employee to a 401(k) Plan
maintained by the Employer) and Forfeitures that are allocated to the Participant’s
Account of a Key Employee for that Plan Year, expressed as a percentage of such Key
Employee’s Code §415(c)(3) Compensation.
	 
	 	(b)	 	Certain Contributions Cannot Be Used to Satisfy Top Heavy Minimum
Allocation. Elective Deferrals that are made on behalf of a Participant to a 401(k)
Plan (and, for Plan Years beginning before 2002, Matching Contributions) cannot be used
to satisfy the Top Heavy Minimum Allocation.
	 
	 	(c)	 	Social Security Contribution Disregarded. The Top Heavy Minimum Allocation
is determined without regard to any Social Security contribution.




-31-









 












	 	(d)	 	Forfeiture of Top Heavy Minimum Allocation. The Top Heavy Minimum
Allocation (to the extent required to be nonforfeitable under Code §416(b)) may not be
forfeited under Code §411(a)(3)(B) or §411(a)(3)(D).






	1.167	 	Top Heavy Ratio. The term Top Heavy Ratio means for Plan Years beginning on or after January 1, 2002, in
determining if this Plan is Top Heavy, a ratio that is calculated in accordance with the
following provisions:






	 	(a)	 	Employer Only Maintains DC Plans. If the Employer maintains one or more
defined contribution plans (including any Simplified Employee Pension Plan) and the
Employer has not maintained any defined benefit plan which during the 5-year period
ending on the Determination Date(s) has or has had accrued benefits, then the Top Heavy
Ratio for this Plan alone, for the Required Aggregation Group, or for the Permissive
Aggregation Group as appropriate is a fraction, the numerator of which is the sum of the
Participant’s Account balances of all Key Employees as of the Determination Date(s)
(including any part of any Participant’s Account balance distributed during the 1-year
period ending on the Determination Date(s); however, including any part of any
Participant’s Account balance distributed during the 5-year period ending on the
Determination Date in the case of a distribution made for a reason other than Termination
of Employment, death, or Disability), and the denominator of which is the sum of all
Participant’s Account balances (including any part of any Participant’s Account balance
distributed in the 1-year period ending on the Determination Date(s); however, including
any part of any Participant’s Account balance distributed during the 5-year period ending
on the Determination Date in the case of a distribution made for a reason other than
Termination of Employment, death, or Disability), both computed in accordance with Code
§416 and the Regulations thereunder. Both the numerator and denominator of the Top Heavy
Ratio are increased to reflect any contribution that is not actually made as of the
Determination Date, but which is required to be taken into account on that Determination
Date under Code §416 and the Regulations thereunder.
	 
	 	(b)	 	Employer Maintains Both DB and DC Plans. If the Employer maintains one or
more defined contribution plans (including any Simplified Employee Pension Plan) and the
Employer maintains or has maintained one or more defined benefit plans which during the
5-year period ending on the Determination Date(s) has or has had any accrued benefits,
then the Top Heavy Ratio for any Required Aggregation Group or for any
Permissive Aggregation Group as appropriate is a fraction, the numerator of which is the
sum of the Participant’s Account balances under the aggregated defined contribution plan
or plans for all Key Employees, determined in accordance with paragraph (a) above, and the
present value of accrued benefits under the aggregated defined benefit plan or plans for
all Key Employees as of the Determination Date(s), and the denominator of which is the sum
of the Participant’s Account balances under the aggregated defined contribution plan or
plans for all Participants, determined in accordance with paragraph (a) above, and the
present value of accrued benefits under the defined benefit plan or plans for all
Participants as of the Determination Date(s), all determined in accordance with Code §416
and the Regulations thereunder. The accrued benefits under a defined benefit plan in both
the numerator and denominator of the Top Heavy Ratio are increased for any distribution of
an accrued benefit made in the 1-year period ending on the Determination Date (or the
5-year period ending on the Determination Date in the case of a distribution made for a
reason other than Termination of Employment, death, or Disability).
	 
	 	(c)	 	Value of Participant’s Account Balances and the Present Value of Accrued
Benefits. For purposes of paragraphs (a) and (b), the value of the Participant’s
Account balances and the present value of accrued benefits will be determined as of the
most recent Valuation Date that falls within or ends with the 12-month period ending on
the Determination Date, except as provided in Code §416 and the Regulations for the first
and second Plan Years of a defined benefit plan. The Participant’s Account balances and
accrued benefits will be disregarded for a Participant (1) who is not a Key Employee
during the 12-month period ending on the Determination Date but was a Key Employee in a
prior year, or (2) who has not been credited with at least one Hour of Service with any
Employer maintaining the Plan at any time during the 1-year period ending on the
Determination Date. The calculation of the Top Heavy Ratio and the extent to which
distributions, Rollover Contributions, and Transfer Contributions are taken into account
will be made in accordance with Code §416 and the Regulations thereunder. Deductible
employee contributions will not be taken into account in computing the Top Heavy Ratio.
When aggregating plans, the value of the Participant’s Account balances and accrued
benefits will be calculated with reference to the Determination Dates that fall within
the same calendar year. The accrued benefit of a Participant other than a Key Employee
will be determined under (1) the method, if any, that uniformly applies for accrual
purposes under all defined benefit plans maintained by the Employer, or (2) if there is
no such method, then as if such benefit accrued not more rapidly than the slowest accrual
rate permitted under the fractional rule of Code §411(b)(1)(C).




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	 	(d)	 	Computing Present Values. In establishing the present value of accrued
benefits to compute the Top Heavy Ratio, benefits not in pay status are handled on the
basis that retirement occurs on the automatic vesting date or, if later, the date of
reference. Benefits are discounted only for interest and mortality. Unless different
actuarial assumptions are elected in an administrative policy that is promulgated under
Section 8.6 by the Administrator, the following factors apply: (1) with respect to the
interest assumption: (i) pre-retirement: 6% interest, and (ii) post-retirement: 5%
interest; and (2) with respect to the mortality assumption: (i) pre-retirement: no
mortality assumption, and (ii) post-retirement: the mortality assumption will be the
1994 Group Annuity Reserving Mortality Table projected to 2002 based on a fixed blend of
50% of the unloaded Male mortality rates and 50% of the unloaded Female mortality rates
(the 1994 GAR Mortality Table) as set forth in Revenue Ruling 2001-62.






	1.168	 	Transfer Contribution. The term Transfer Contribution means a non-taxable transfer of a Participant’s benefit
directly or indirectly from another qualified plan to this Plan. Transfer Contributions
include assets transferred to this Plan from another plan as a result of a merger or similar
transaction involving this Plan and the other plan. Any direct or indirect transfer as defined
in Code §401(a)(11) of assets from a defined benefit plan, a money purchase plan, a target
benefit plan, a stock bonus plan, or a profit sharing plan that provided for a life annuity
form of payment to the Participant will be considered a Transfer Contribution. Elective
Deferrals (including QNECs, QMACs, and ADP Safe Harbor Contributions) which are transferred to
this Plan in a direct or indirect trustee-to-trustee transfer from another qualified plan and
which remain subject to the limitations in Regulation §1.401(k)-1(d) will be considered a
Transfer Contribution. The assets that are transferred from another qualified plan in a
plan-to-plan elective transfer pursuant to Section 11.4 will also be considered a Transfer
Contribution.
	 
	1.169	 	Transfer Contribution Account. The term Transfer Contribution Account means the account to which a Participant’s
Transfer Contributions, if any, are allocated.
	 
	1.170	 	Trustee. The term Trustee means the persons or entity named as trustee or trustees of the Trust.
	 
	1.171	 	Trust (or Trust Fund). The term Trust or Trust Fund means the assets of the Plan.
	 
	1.172	 	Valuation Calendar Year. The term Valuation Calendar Year means, for purposes of required minimum distributions
under Section 5.9, the calendar year immediately preceding a Distribution Calendar Year.
	 
	1.173	 	Valuation Date. The term Valuation Date means the date when the Trustee determines the value of the
Trust Fund. A Valuation Date of the Trust Fund must occur as of the last day of each Plan
Year. However, the Administrator can value all or any portion of the assets of the Trust Fund
more frequently, including, but not limited to, semi-annually, quarterly, monthly, or daily;
the Administrator may implement any additional Valuation Dates for any reason. For purposes of
calculating the Top Heavy Ratio, the term “Valuation Date” means the date when the
Participant’s Account balances or accrued benefits are valued.
	 
	1.174	 	Vested Aggregate Account. The term Vested Aggregate Account means a Participant’s Vested Interest in the
aggregate value of his or her Participant’s Account and any accounts attributable to the
Participant’s own Plan contributions (including the Participant’s Rollover Contribution
Account and Transfer Contribution Account).
	 
	1.175	 	Vested, Vested Interest or Vesting. The terms Vested, Vested Interest and Vesting mean a Participant’s nonforfeitable
percentage in an account maintained on his or her behalf under the Plan. A Participant’s
Vested Interest in his or her Participant’s Account will be determined in accordance with
Section 4.6.
	 
	1.176	 	Vesting Computation Period. The term Vesting Computation Period means a period of twelve consecutive months which
is used for purposes of determining a Participant’s Vested Interest in the Plan (or a
component of the Plan). An Employee’s initial Vesting Computation Period will begin on the
Employee’s Employment Commencement Date, and each subsequent Vesting Computation Period will
begin on each anniversary of the Employee’s Employment Commencement Date.
	 
	1.177	 	Voluntary Employee Contribution. The term Voluntary Employee Contribution means an Employee Contribution which is made
voluntarily to the Plan by a Participant.
	 
	1.178	 	Voluntary Employee Contribution Account. The term Voluntary Employee Contribution Account means the sub-account to which a
Participant’s Voluntary Employee Contributions, if any, are allocated.




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	1.179	 	Year of Service. The term Year of Service means, with respect to any provision of the Plan in which
service is determined by the Counting of Hours Method, a 12-consecutive month computation
period during which an Employee is credited with at least a specified number of Hours of
Service with the Employer, an Affiliated Employer, or an Adopting Employer,
determined in accordance with the following provisions:






	 	(a)	 	Year of Service for Eligibility. For any Plan Year in which the
eligibility requirements under Section 2.1 are based on Years of Service, a Year of
Service is an Eligibility Computation Period during which an Employee is credited with at
least 1,000 Hours of Service. An Employee’s initial Eligibility Computation Period will
begin on his or her Employment Commencement Date. If the Employee is credited with at
least 1,000 Hours of Service in both the initial Eligibility Computation Period and the
second Eligibility Computation Period, the Employee will be credited with two Years of
Service for eligibility purposes. If any Eligibility Computation Period is less than 12
consecutive months, the Hours of Service requirement set forth herein will be
proportionately reduced (if it is greater than one) in determining whether an Employee is
credited with a Year of Service during such short Eligibility Computation Period. In
determining the eligibility requirements and the applicable entry date under Section 2.1,
an Employee will be deemed to have completed a Year of Service on the last day of the
applicable Eligibility Computation Period during which the Employee is credited with the
required Hours of Service.
	 
	 	(b)	 	Year of Service for Vesting. For any Plan Year in which a Participant’s
Vested Interest under Section 4.6 is based on Years of Service, a Year of Service is a
Vesting Computation Period during which an Employee is credited with at least 1,000 Hours
of Service. If a Vesting Computation Period is less than 12 consecutive months, the Hours
of Service requirement set forth herein will be proportionately reduced (if it is greater
than one) in determining whether an Employee is credited with a Year of Service during
such short Vesting Computation Period. Alternatively, with respect to a short Vesting
Computation Period, an Employee will be credited with a Year of Service pursuant to
Department of Labor Regulation §2530.203 2(c).
	 
	 	(c)	 	Prior Service Credit. For purposes of determining an Employee’s
eligibility to participate in the Plan under Section 2.1 and determining an Employee’s
vesting under Section 4.6, an Employee who was employed by After Hours Formalwear, Inc.
on April 9, 2007, shall also receive for a computation period an Hour of Service credit
for each “Hour of Service” (as that term was defined in the After Hours Formalwear Profit
Sharing Plan) that was credited to such Employee under the After Hours Formalwear Profit
Sharing Plan as of April 9, 2007.
	 
	 	(d)	 	Reemployment of an Employee Before a Break In Service and Before Eligibility
Requirements Are Satisfied. For any Plan Year in which the eligibility requirements
under Section 2.1 are based on Years of Service, if an Employee Terminates Employment
with the Employer prior to satisfying the eligibility requirements in Section 2.1 and the
Employee is subsequently reemployed by the Employer before incurring a Break in Service,
then (1) the Employee’s pre-termination Year(s) of Service (and Hours of Service during
any computation period) will be counted in determining the satisfaction of such
eligibility requirements, and for all other purposes, as applicable, and (2) the
Eligibility Computation Period, Vesting Computation Period, and/or benefit accrual
computation period, as applicable, will remain unchanged.
	 
	 	(e)	 	Reemployment of an Employee Before a Break In Service and After Eligibility
Requirements Are Satisfied. For any Plan Year in which the eligibility requirements
under Section 2.1 are based on Years of Service, if an Employee Terminates Employment
prior to the Employee’s Entry Date in Section 2.1, the Employee had satisfied the
eligibility requirements in Section 2.1 as of the Employee’s Termination of Employment,
and the Employee is subsequently reemployed by the Employer before incurring a Break in
Service, then (1) the Employee will become a Participant as of the later of (A) the date
that the Employee would enter the Plan had he or she not Terminated Employment with the
Employer, or (B) the Employee’s Reemployment Commencement Date, (2) the Employee’s
pre-termination Year(s) of Service (and Hours of Service during any computation period)
will be counted for all purposes, and (3) the Vesting Computation Period and/or benefit
accrual computation period, as applicable, will remain unchanged.
	 
	 	(f)	 	Reemployment of a Participant Before a Break In Service. For any Plan Year
in which the eligibility requirements under Section 2.1 are based on Years of Service, if
an Employee Terminates Employment after becoming a Participant and is subsequently
reemployed by the Employer before incurring a Break in Service, then (1) the reemployed
Employee will reenter the Plan as of the Employee’s Reemployment Commencement Date, (2)
the Employee’s pre-termination Year(s) of Service (and Hours of Service during




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	 	 	 	any
computation period) will be counted for all purposes, as applicable, and (3) the Vesting
Computation Period and/or benefit accrual computation period, as applicable, will remain
unchanged.






	 	(g)	 	Reemployment of an Employee After a Break In Service and Before the Entry
Date. For any Plan Year in which the eligibility requirements in Section 2.1 are
based on Years of Service, if an Employee Terminates Employment with the Employer either
prior to or after satisfying the eligibility requirements in Section 2.1 (but before the
Employee’s Entry Date in Section 2.1) and the Employee is subsequently reemployed by the
Employer after incurring a Break in Service, then the Employee’s Years of Service that
were completed prior to the Break in Service will be recognized, subject to the following
provisions:






	 	(1)	 	Determination of Years of Service for Eligibility Using the Rule of
Parity. Any Years of Service completed prior to an Employee’s Break(s) in
Service will not be counted in determining an Employee’s eligibility to participate
in the Plan if those Year(s) of Service are disregarded pursuant to the Rule of
Parity. If such former Employee’s Year(s) of Service are disregarded under the Rule
of Parity, then (A) the reemployed Employee will be treated as a new Employee for
purposes of Section 2.1 and (B) the Employee’s Eligibility Computation Period will
commence on the Employee’s Reemployment Commencement Date and subsequent Eligibility
Computation Periods will be based upon the provisions of the definition of
Eligibility Computation Period (with the Reemployment Commencement Date
substituted for the Employment Commencement Date, if applicable). If the Employee has
not satisfied the eligibility requirements in Section 2.1 as of the Employee’s
Reemployment Commencement Date and such former Employee’s Year(s) of Service are not
disregarded under the Rule of Parity, then the Eligibility Computation Periods will
remain unchanged. If the Employee has satisfied the eligibility requirements in
Section 2.1 as of the Employee’s Reemployment Commencement Date and such former
Employee’s Year(s) of Service are not disregarded under the Rule of Parity, the
reemployed Employee will enter the Plan as of the Employee’s Reemployment Commencement
Date.
	 
	 	(2)	 	Determination of Years of Service for Vesting. Any Years of
Service completed prior to an Employee’s Break(s) in Service will not be counted in
determining an Employee’s Vesting Interest in the Participant’s Account balance if
those Year(s) of Service are disregarded pursuant to the Rule of Parity. If such
former Employee’s Year(s) of Service are disregarded under the Rule of Parity, then
the Employee’s Vesting Computation Period will commence on the Employee’s
Reemployment Commencement Date (and subsequent Vesting Computation Periods will
commence on anniversaries of the Employee’s Reemployment Commencement Date). If such
former Employee’s Year(s) of Service are not disregarded under the Rule of Parity,
then the Vesting Computation Periods will remain unchanged.
	 
	 	(3)	 	Determination of Years of Service for Benefit Accrual/Allocation
Purposes. Any Years of Service completed prior to an Employee’s Break(s) in
Service will not be counted for benefit accrual or allocation purposes if those
Year(s) of Service are disregarded pursuant to the Rule of Parity.






	 	(h)	 	Reemployment of a Participant After a Break In Service. For any Plan Year
in which the eligibility requirements under Section 2.1 are based on Years of Service, if
an Employee (1) was a Participant in the Plan, (2) Terminates Employment with the
Employer, and (3) is subsequently reemployed by the Employer after incurring a Break in
Service, then the Employee’s Year(s) of Service that were completed prior to the Break in
Service will be recognized, subject to the following provisions:






	 	(1)	 	Determination of Years of Service for Eligibility Purposes. Any
Year(s) of Service completed prior to an Employee’s Break(s) in Service will not be
counted in determining an Employee’s eligibility to participate in the Plan if those
Year(s) of Service are disregarded pursuant to the Rule of Parity. If such Employee’s
Year(s) of Service are disregarded under the Rule of Parity, then (A) the reemployed
Employee will be treated as a new Employee for purposes of Section 2.1 and (B) the
Employee’s Eligibility Computation Period will commence on the Employee’s
Reemployment Commencement Date and subsequent Eligibility Computation Periods will be
based upon the provisions of the definition of Eligibility Computation Period (with
the Reemployment Commencement Date substituted for the Employment Commencement Date,
if applicable). If such former Employee’s Year(s) of Service are not disregarded
under the Rule of Parity, then the reemployed Employee will reenter the Plan as of
the Employee’s Reemployment Commencement Date.
	 
	 	(2)	 	Determination of Years of Service for Vesting Purposes. Any
Year(s) of Service that were completed prior to an Employee’s Break(s) in Service
will not be counted for purposes of determining an




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	 	 	 	Employee’s Vesting Interest in the
Participant’s Account balance if those Year(s) of Service are disregarded pursuant to
the Rule of Parity. If such former Employee’s Year(s) of Service are disregarded
under the Rule of Parity, then the Employee’s Vesting Computation Period will
commence on the Employee’s Reemployment Commencement Date (and subsequent Vesting
Computation Periods will commence on anniversaries of the Employee’s Reemployment
Commencement Date). If such former Employee’s Year(s) of Service are not disregarded
under the Rule of Parity, then the Vesting Computation Periods will remain unchanged.






	 	(3)	 	Determination of Years of Service for Benefit Accrual/Allocation
Purposes. Any Year(s) of Service that were completed prior to an Employee’s
Break(s) in Service will not be counted for benefit accrual or allocation purposes if
those Year(s) of Service are disregarded pursuant to the Rule of Parity.






	 	(i)	 	Ignoring Service for Eligibility If Service Requirement for Eligibility Is More
Than 1 Year of Service. Notwithstanding anything in the Plan to the contrary, if
this Plan (or a component of the Plan) provides at any time that an Employee must
complete more than one (1) Year of Service for eligibility purposes, and such Employee
will have a 100% Vested Interest in the Participant’s Account (or the sub-Account that
relates to such component) upon becoming a Participant in the Plan, then with respect to
an Employee who incurs a Break in Service before satisfying such eligibility requirement
(1) the Employee’s Year(s) of Service (and Hours of Service) that were completed prior to
the Employee’s Break(s) in Service will not be counted for eligibility purposes, and (2)
the Employee’s Eligibility Computation Period will commence on the Employee’s
Reemployment Commencement Date and subsequent Eligibility Computation Periods will be
based upon the provisions of the definition of Eligibility Computation Period (with the
Reemployment Commencement Date substituted for the Employment Commencement Date, if
applicable).




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Article 2

Plan Participation





	2.1	 	Eligibility and Entry Date Requirements . An Eligible Employee who was a Participant on June 30, 2011 will continue to
participate in the Plan. Otherwise, an Eligible Employee will become eligible to enter the
Plan as a Participant in accordance with the following provisions:






	 	(a)	 	Elective Deferrals. An Eligible Employee will be eligible to enter the
Elective Deferral component of the Plan as a Participant in accordance with the following
provisions:






	 	(1)	 	Eligible Employees. For purposes of this Section 2.1(a), all
Employees are Eligible Employees except for the following ineligible classes of
Employees: (A) Employees whose employment is governed by a collective bargaining
agreement between Employee representatives and the Employer in which retirement
benefits were the subject of good faith bargaining unless such collective bargaining
agreement expressly provides for the inclusion of such Employees as Participants; (B)
any person who is considered a Leased Employee but who (i) is not covered by a plan
described in Code §414(n)(5), or (ii) is covered by a plan described in Code
§414(n)(5) but Leased Employees constitute more than 20% of the Employer’s non-highly
compensated workforce; and (C) any Employee who is classified as an independent
contractor. An employee who is a nonresident alien and receives no earned income
from any affiliated employer that constitutes income from sources within the United
States is not eligible to participate. An employee who is a nonresident alien and
who does receive earned income from any affiliated employer that constitutes income
from sources within the United States all of which is exempt from the United States
income tax under an applicable tax convention is not eligible to participate. An
employee who is expatriated to the United States from another country for so long as
he continues to accrue deferred compensation or retirement benefits under any
agreement or program to which an affiliated employer other than an employer is a
party is not eligible to participate. An employee who is employed outside the United
States is not eligible to participate unless the committee elects to permit him to
participate in the plan..
	 
	 	(2)	 	Eligibility Requirements. For purposes of this Section 2.1(a), an
Eligible Employee described in Section 2.1(a)(1) will be eligible to enter the Plan
as a Participant on the applicable entry date described in Section 2.1(a)(3) upon
being credited with a 90-day Period of Service.
	 
	 	(3)	 	Entry Date. For purposes of this Section 2.1(a), an Eligible
Employee described in Section 2.1(a)(1) who has satisfied the eligibility
requirements in Section 2.1(a)(2) will enter the Plan as a Participant on the same
date such requirements are satisfied.






	 	(b)	 	Non-Safe Harbor Matching Contributions. An Eligible Employee will be
eligible to enter the Plan as a Participant for the purpose of receiving allocations of
any Non-Safe Harbor Matching Contributions made to the Plan in accordance with the
following provisions:






	 	(1)	 	Eligible Employees. For purposes of this Section 2.1(b), all
Employees are Eligible Employees except for the following ineligible classes of
Employees: (A) Employees whose employment is governed by a collective bargaining
agreement between Employee representatives and the Employer in which retirement
benefits were the subject of good faith bargaining unless such collective bargaining
agreement expressly provides for the inclusion of such Employees as Participants; (B)
any person who is considered a Leased Employee but who (i) is not covered by a plan
described in Code §414(n)(5), or (ii) is covered by a plan described in Code
§414(n)(5) but Leased Employees constitute more than 20% of the Employer’s non-highly
compensated workforce; and (C) any Employee who is classified as an independent
contractor. An employee who is a nonresident alien and receives no earned income
from any affiliated employer that constitutes income from sources within the United
States is not eligible to participate. An employee who is a nonresident alien and
who does receive earned income from any affiliated employer that constitutes income
from sources within the United States all of which is exempt from the United States
income tax under an applicable tax convention is not eligible to participate. An
employee who is expatriated to the United States from another country for so long as
he continues to accrue deferred compensation or retirement benefits under any
agreement or program to which an affiliated employer other than an employer is a
party is not eligible to participate. An employee who is
employed outside the United States is not eligible to participate unless the committee
elects to permit him to participate in the plan..




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	 	(2)	 	Eligibility Requirements. For purposes of this Section 2.1(b), an
Eligible Employee described in Section 2.1(b)(1) will be eligible to enter the Plan
as a Participant on the applicable entry date described in Section 2.1(b)(3) upon
being credited with a 90-day Period of Service.
	 
	 	(3)	 	Entry Date. For purposes of this Section 2.1(b), an Eligible
Employee described in Section 2.1(b)(1) who has satisfied the eligibility
requirements in Section 2.1(b)(2) will enter the Plan as a Participant on the same
date such requirements are satisfied.






	 	(c)	 	Safe Harbor 401(k) Contributions. For any year in which this is a Safe
Harbor 401(k) Plan, the eligibility requirements and entry date for the purpose, and only
for the purpose, of entering the Plan as a Participant in order to receive an allocation
of Safe Harbor 401(k) Contributions are as set forth in a Safe Harbor 401(k) Addendum
executed by the Sponsoring Employer.
	 
	 	(d)	 	Participation By Employees Whose Status Changes. If an Employee who is not
an Eligible Employee with respect to a particular type of contribution (or a component of
the Plan) becomes an Eligible Employee for such contribution (or component), then the
Employee will participate in the Plan immediately with respect to that type of
contribution (or component), so long as (1) the Employee has satisfied the minimum age
and service requirements for that type of contribution (or component) and (2) the
Employee would have previously become a Participant with respect to that type of
contribution (or component) had the Employee always been an Eligible Employee for that
type of contribution (or component). The participation of a Participant who is no longer
an Eligible Employee with respect to a particular type of contribution (or component)
will be suspended and such Participant will be entitled to an allocation of that type of
contribution (and any applicable Forfeitures) for the Allocation Period only to the
extent of any applicable Hours of Service completed while an Eligible Employee for that
type of contribution (or component). Upon again becoming an Eligible Employee with
respect to that type of contribution (or component), a suspended Participant will
immediately resume eligibility with respect to that type of contribution. Years of
Service or Periods of Service while an Employee is not an Eligible Employee will be
recognized for purposes of determining the Vested Interest of such Employee with respect
to a particular type of contribution (or component) in accordance with Section 4.6.






	2.2	 	Waiver of Participation. An Employee who has satisfied the eligibility requirements set forth in Section 2.1 is
not permitted to waive participation in the Plan.
	 
	2.3	 	Reemployment After Termination. If an Employee terminates employment and is subsequently reemployed by the Employer or
an Affiliated Employer, such Employee’s Periods of Service for purposes of eligibility (as
well as the time such Employee enters or reenters the Plan as a Participant) will be
determined in accordance with the rules described in the definition of Period of Service in
Section 1.112.




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Article 3

Contributions and Allocations





	3.1	 	General Contribution and Allocation Provisions. The Employer intends to make contributions to the Plan, unless the Plan is a frozen
Plan, subject to the following provisions:






	 	(a)	 	Types and Amount of Contributions. The type and the amount of the
contribution will be determined by the Employer, and such determination by the Employer
will be binding on the Trustee, Administrator and all Participants and may not be
reviewed in any manner.
	 
	 	(b)	 	No Guarantee. The Employer does not guarantee either the making of
Employer contributions or the payment of benefits under the Plan. The Employer reserves
the right to reduce, suspend or discontinue contributions for any reason at any time;
however, if the Plan is deemed to be terminated as a result of such reduction, suspension
or discontinuance, then the provisions of Article 11 will become effective.
	 
	 	(c)	 	Limitations on Contributions. Notwithstanding any provision of this
Article, (1) no Employer contribution will be made for any Participant who is not a
Benefiting Participant for an Allocation Period unless otherwise required by the Top
Heavy Minimum Allocation provisions in Section 3.12; and (2) if the Plan provides
contributions or benefits for Employees some or all of whom are owner-employees as
defined in Code §401(c)(3), such contributions or benefits can only be provided with
respect to the Earned Income of such owner-employees derived from the trade or business
with respect to which the Plan is established.
	 
	 	(d)	 	Frequency of Contributions and Allocations. Any Employer contribution that
is made under the terms of the Plan may, at the election of the Administrator, be
contributed (1) each payroll period; (2) each month; (3) each Plan quarter; (4) on an
annual basis; or (5) on any Allocation Period as determined by the Employer, provided
that such Allocation Period does not discriminate in favor of Highly Compensated
Employees. The Employer may elect a different Allocation Period for each type of Employer
contribution. Employer contributions will be allocated based on the applicable Allocation
Period.
	 
	 	(e)	 	Form of Contribution. If the contribution is not used to reduce an
obligation or liability of an Employer to the Plan, and the contribution is unencumbered
and discretionary, then the contribution (if any) may consist of (1) cash; (2) cash
equivalencies (3) qualifying employer real property and/or qualifying employer securities
as defined in ERISA §407(d)(4) and ERISA §407(d)(5), provided the acquisition of such
qualifying employer real property and/or qualifying employer securities satisfies the
requirements of ERISA §408(e); or (4) any other property that is not prohibited under
Code §4975 and is acceptable to the Trustee. If the contribution is used to reduce an
obligation or liability of an Employer or the contribution is encumbered and not
discretionary, then the contribution will consist of (1) cash; or (2) cash equivalencies;
such Employer’s contribution will not consist of any non-cash or non-cash equivalency
assets to the Trust.
	 
	 	(f)	 	Refund of Contributions. Contributions that are made to the Plan by the
Employer can only be returned to the Employer in accordance with the following
provisions:






	 	(1)	 	Failure of Plan to Initially Qualify. If the Plan fails to
initially satisfy the requirements of Code §401(a) and the Employer declines to amend
the Plan to satisfy such requirements, then contributions that were made prior to the
date such qualification is denied must be returned to the Employer within one year of
the date of such denial, but only if the application for the qualification is made by
the time prescribed by law for filing the Employer’s tax return for the taxable year
in which the Plan is adopted, or by such later date as the Secretary of the Treasury
may prescribe.
	 
	 	(2)	 	Contributions Made Under a Mistake of Fact. If a contribution is
attributable in whole or in part to a good faith mistake of fact, including a good
faith mistake in determining the deductibility of the contribution under Code §404,
an amount may be returned to the Employer equal to the excess of the amount that had
been contributed over the amount that would have been contributed if the mistake of
fact had not occurred (which excess will hereafter be known as a “Mistaken
Contribution”). Earnings attributable to a Mistaken Contribution will not be
returned, but losses attributable to the Mistaken Contribution will reduce the amount
so returned. The Mistaken Contribution will be returned within one year of the date
the Mistaken Contribution was made or the deduction disallowed, as the case may be.




-39-









 












	 	(3)	 	Nondeductible Contributions. Except to the extent that an Employer
may intentionally make a nondeductible contribution, for example, to correct an
administrative error, or restore a Forfeiture, Employer contributions are conditioned
on deductibility and will otherwise be returned to the Employer.






	3.2	 	Elective Deferrals. The Employer will contribute each Participant’s Elective Deferrals to the Plan,
determined in accordance with, and determined subject to, the following provisions:






	 	(a)	 	Amount of Elective Deferrals. Each Participant may enter into and submit
to the Administrator at any time a Salary Deferral Agreement authorizing the Employer to
withhold all or a portion of the Participant’s Compensation, specifying the amount
(either in whole percentage increments of Compensation or in whole dollar amounts as
designated by the Participant; but the Administrator will have the right to direct that
such increments of Compensation be rounded to the next highest or lowest dollar or
percentage) and type (either Roth Elective Deferrals (if permitted by the Plan), Pre-Tax
Elective Deferrals, or a specific combination of Roth Elective Deferrals (if permitted by
the Plan) and Pre-Tax Elective Deferrals). The amount withheld will be deemed an Elective
Deferral that the Employer will contribute to the Plan on behalf of the Participant. Such
Salary Deferral Agreement will be effective as soon as administratively feasible after
receipt of the Salary Deferral Agreement, unless a later pay period is specified by the
Participant. A Participant’s Salary Deferral Agreement will remain in effect until
superseded by another Salary Deferral Agreement (subject to the Automatic Enrollment
provisions of paragraph (g) below). The Administrator, pursuant to an administrative
policy regarding Elective Deferrals that is promulgated under Section 8.6, will designate
the effective date of such elections that are submitted to the Administrator, and the
frequency of such elections (and the frequency of modifications to such elections) but
not less frequently than once per Plan Year. In addition, other Elective Deferral
provisions may be set forth in such administrative policy, including, but not limited to,
provisions that (1) set the maximum Elective Deferral percentage for Participants who are
Highly Compensated Employees (if such percentage is less than the maximum percentage set
forth above); (2) describe a program of automatic increases to a Participants’ Elective
Deferral percentage as elected by the Administrator and/or the Participant; and (3)
permit a Participant to identify separate components of the Participant’s Compensation
(such as base salary, bonuses, etc.) and to specify that a different Elective Deferral
percentage (or dollar amount) apply to each such component.
	 
	 	(b)	 	Cash or Deferred Option. For any Plan Year, the Employer may declare a
Cash or Deferred Contribution. In such event, the Employer will provide each Participant
who is entitled to this Cash or Deferred Contribution the right to elect to receive as
cash some or all of such Participant’s Cash or Deferred Contribution. Any amount that a
Participant elects not to receive as cash will be deemed an Elective Deferral of the
Participant, will be contributed to the Plan within 21/2 months after the end of the Plan
Year, and will be allocated to the Participant’s Elective Deferral Account.
	 
	 	(c)	 	Roth Elective Deferrals. Roth Elective Deferrals are not permitted.
	 
	 	(d)	 	Reclassification Not Permitted. An Elective Deferral contributed to the
Plan as one type of Elective Deferral (either a Roth Elective Deferral or a Pre-Tax
Elective Deferral) may not later be reclassified as the other type of Elective Deferral.
	 
	 	(e)	 	Catch-Up Contributions. Catch-Up Contributions are permitted and
Participants who are age 50 or over by the end of their taxable years will be eligible.
If this Plan is a Safe Harbor 401(k) Plan, Catch-Up Contributions will be treated as
Elective Deferrals and will be matched in accordance with the Safe Harbor Matching
Contribution formula(s), if any, set forth in a Safe Harbor 401(k) Addendum. If this is a
Non-Safe Harbor 401(k) Plan, Catch-Up Contributions will be matched.
	 
	 	(f)	 	Limitations on Elective Deferrals. In no event may Elective Deferrals be
more than the maximum dollar amount permitted for the Participant’s taxable year
beginning in that calendar year under Code §402(g). Elective Deferrals that exceed the
applicable Code §402(g) limit are Excess Elective Deferrals and will be distributed to
the affected Participants under Section 5.18. No Participant will be permitted to have
Elective Deferrals made under this Plan, or any other plan, contract or arrangement
maintained by the Sponsoring Employer, during any calendar year, in excess of the dollar
limit in Code §402(g) in effect for the Participant’s taxable year beginning in such
calendar year. The dollar limitation in Code §402(g) is $11,000 for taxable years
beginning in 2002, and increasing by $1,000 each taxable year thereafter up to $15,000
for taxable years beginning in 2006 and later years. After 2006, the $15,000 limit will
be adjusted by the




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	 	 	 	Secretary of the Treasury for cost-of-living increases under Code §402(g)(4). Adjustments
will be in multiples of $500. Catch-Up Contributions will not be used in determining the
Code §402(g) limitations.






	 	(g)	 	Automatic Enrollment. The Employer may establish an automatic enrollment
program. The terms of the automatic enrollment program (which may include, but are not
limited to, the Elective Deferral percentage or amount, any automatic increases that
apply to that Elective Deferral percentage or amount, the portion of the Elective
Deferral which is considered a Pre-Tax Elective Deferral and, if available in this Plan,
the portion which is considered a Roth Elective Deferral, and the Participants to whom
the automatic enrollment program applies) will be set forth from time to time in an
administrative policy regarding Elective Deferrals that is promulgated under Section 8.6
by the Administrator; if the Administrator does not adopt such administrative policy,
then the terms of the notice that is issued to Participants regarding the automatic
enrollment program will define the terms and conditions of the automatic enrollment
program regarding Elective Deferrals for the Plan Year.
	 
	 	(h)	 	Salary Deferral Agreement. Salary Deferral Agreements may be entered into
as of such date or dates (but at least once per Plan Year) as established by the
Administrator in an administrative policy regarding Elective Deferrals promulgated under
Section 8.6. A Participant may thereafter modify a Salary Deferral Agreement to increase
or decrease the percentage or amount being withheld as permitted under such
administrative policy. The Participant may also at any time suspend or cancel his or her
Salary Deferral Agreement upon reasonable written notice to the Administrator. If a
Participant cancels or suspends his or her Salary Deferral Agreement, the Participant
will not be permitted to put a new Salary Deferral Agreement into effect until such time
as set forth in such administrative policy. If necessary to insure that the Plan
satisfies the ADP Test or upon a Participant reaching the Elective Deferral limit of Code
§402(g) with respect to such Participant’s Elective Deferrals in the Plan, then the
Sponsoring Employer may temporarily suspend a Participant’s Salary Deferral Agreement
upon notice to the Participant. An Elective Deferral will constitute a payroll deduction
authorization for purposes of applicable state law. If automatic enrollment is
implemented by the Sponsoring Employer pursuant to paragraph (g) above, then the
Participant must be given an effective opportunity to elect a different amount (including
no amount).
	 
	 	(i)	 	ADP Testing. Elective Deferrals in a Non-Safe Harbor 401(k) Plan must
satisfy the ADP Test of Section 3.14 for a Plan Year, and Elective Deferrals in a
Non-Safe Harbor 401(k) Plan that do not satisfy the ADP Test for a Plan Year will utilize
the correction methods of such Section.
	 
	 	(j)	 	Distribution of Elective Deferrals. Elective Deferrals can only be
distributed upon the earliest to occur of the following dates: (1) a Participant
Terminates Employment (separates from service, for Plan Years beginning before 2002) with
the Employer; (2) a Participant dies; (3) a Participant suffers a Disability; (4) an
event that is described in Code §401(k)(10) occurs; (5) a Participant reaches Age 591/2 (if
on or before such date, a pre-retirement in-service withdrawal of Elective Deferrals is
permitted under Section 5.17); or (6) if financial hardship distributions are permitted
under Section 5.16, the Participant qualifies for a financial hardship distribution. With
respect to clause (4) of the prior sentence, Elective Deferrals can be distributed (in a
lump sum only) upon Plan termination so long as the Sponsoring Employer (or an Affiliated
Employer) does not maintain an alternative defined contribution plan at any time during
the period beginning on the date of Plan termination and ending 12 months after all
assets have been distributed from the terminated Plan. However, if at all times during
the 24-month period beginning 12 months before the date of Plan’s termination, fewer than
2% of the Employees who were eligible to participate in the 401(k) Plan as of the date of
the Plan’s termination are eligible to participate in the other defined contribution
plan, the other defined contribution plan is not an alternative defined contribution
plan. A defined contribution plan is also not an alternative defined contribution plan if
it is an employee stock ownership plan as defined in Code §4975(e)(7) or Code §409(a), a
simplified employee pension as defined in Code §408(k), a SIMPLE IRA plan as defined in
Code §408(p), a plan or contract that is described in Code§ 403(b), or a plan that is
described in Code §457(b) or Code §457(f).
	 
	 	(k)	 	Allocation of Elective Deferrals. Participant’s Pre-tax Elective Deferrals
will be allocated to the Participant’s Pre-Tax Elective Deferral Account. Each
Participant’s Roth Elective Deferrals (if any) will be allocated to the Participant’s
Roth Elective Deferral Account.






	3.3	 	Non-Safe Harbor Matching Contributions. The Employer may make Non-Safe Harbor Matching Contributions, subject to the following
provisions:




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	 	(a)	 	Contribution Formula. Except as otherwise provided in this Section, the
Employer’s Non-Safe Harbor Matching Contribution for any Allocation Period is totally
discretionary. The Employer’s discretion in establishing a formula for any Allocation
Period includes, but is not limited to, establishing the amount of the contribution, the
rate of match, as well as establishing a maximum Non-Safe Harbor Matching Contribution
per Participant (either as a dollar maximum per Participant, a maximum percentage of each
Participant’s Compensation, and/or a maximum amount of each Participant’s Elective
Deferrals that will be recognized for matching purposes). The Employer must also, on or
before the due date (plus any extensions) for filing the Employer’s tax return, adopt a
written resolution (or other written action) which describes the rate of match and the
maximum limitations, if any, imposed on the Matching Contribution for the Allocation
Period. Any such Matching Contribution will then be allocated to each Benefiting
Participant’s Non-Safe Harbor Matching Contribution Account in the ratio that his or her
Elective Deferrals for the Allocation Period bears to the total Elective Deferrals of all
Benefiting Participants for the Allocation Period, subject to any maximum limitations
imposed on the allocation in the written resolution (or other written action).
	 
	 	(b)	 	ACP Testing. Non-Safe Harbor Matching Contributions made for a Plan Year
must satisfy the ACP Test of Section 3.15 for a Plan Year. Non-Safe Harbor Matching
Contributions that do not satisfy the ACP Test will utilize the correction methods of
such Section.
	 
	 	(c)	 	Treatment as QMACs. The Administrator may elect to treat all or any
portion of a Non-Safe Harbor Matching Contribution as a QMAC sufficient to satisfy the
ADP Test, to the extent that such QMAC is not used to satisfy the ACP Test (but, so long
as the QMAC is not precluded from being used in the ACP Test pursuant to Section
3.15(j)(4)(B)).
	 
	 	(d)	 	True-Ups. If (1) the Allocation Period for Non-Safe Harbor Matching
Contributions is a computation period that is less than the Plan Year, and (2) on the
last day of any Plan Year, the dollar amount of the Non-Safe Harbor Matching
Contributions made on behalf of a Benefiting Participant is less than the dollar amount
that would have been made had the Non-Safe Harbor Matching Contributions been contributed
for an Allocation Period of a Plan Year, then the Employer may elect, pursuant to the
Employer’s discretion, for any Plan Year to make an additional Non-Safe Harbor Matching
Contribution so that the Non-Safe Harbor Matching Contribution contributed for a
Benefiting Participant is equal to the Non-Safe Harbor Matching Contribution that would
have been made had the Non-Safe Harbor Matching Contributions been contributed for an
Allocation Period of the Plan Year. However, any such additional Non-Safe Harbor Matching
Contributions can only be made to the Plan on a uniform, nondiscriminatory basis. In
order to determine the group of Participants who are eligible to receive the additional
Non-Safe Harbor Matching Contributions of this paragraph, the Employer may impose
allocation conditions that are different from the allocation conditions used to
determining Benefiting Participants for purposes of other Non-Safe Harbor Matching
Contributions.
	 
	 	(e)	 	Prorating the Code §401(a)(17) Compensation Limit for Each Allocation
Period. If the Allocation Period for Non-Safe Harbor Matching Contributions is a
computation period that is less than the Plan Year, then the Employer may elect, pursuant
to the Employer’s discretion, for any Plan Year to prorate the Code §401(a)(17)
Compensation Limit to each Allocation Period of the Plan Year. However, any prorating of
the Code §401(a)(17) Compensation Limit can only be made on a uniform, nondiscriminatory
basis.
	 
	 	(f)	 	Excess Elective Deferrals and Excess Contributions Not Required to Be
Matched. Notwithstanding the above, to the extent Non-Safe Harbor Matching
Contributions (including Qualified Matching Contributions) are contributed on an annual
basis, no Non-Safe Harbor Matching Contribution (including Qualified Matching
Contributions) will be required with respect to that portion of an Elective Deferral
which for that Plan Year is determined to be either an Excess Elective Deferral (unless
the Excess Elective Deferral is for a Non-Highly Compensated Employee) or an Excess
Contribution. Furthermore, Matching Contributions (including Qualified Matching
Contributions) that have been allocated to a Participant’s Account must be forfeited if
the contributions to which they relate are Excess Deferrals (unless the Excess Elective
Deferrals are for Non-Highly Compensated Employees), Excess Contributions, or Excess
Aggregate Contributions.
	 
	 	(g)	 	Right to Each Rate of Match. The right to each rate of Non-Safe Harbor
Matching Contributions (determining the rate using the amount of Non-Safe Harbor Matching
Contributions, Elective Deferrals, Voluntary Employee Contributions, and Mandatory
Employee Contributions determined after any corrections under Regulation
§1.401(k)—2(b)(1)(i) and §1.401(m)—2(b)(1)(i), and treating different rates as existing
if they are based on definitions of Compensation or other requirements or formulas that
are not substantially the same) must not discriminate in favor of Highly Compensated
Employees.




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	 	(h)	 	Allocation of Non-Safe Harbor Matching Contributions. Non-Safe Harbor
Matching Contributions contributed on a Participant’s behalf will be allocated to the
Participant’s Non-Safe Harbor Matching Contribution Account. A Participant who makes an
Elective Deferral during the Allocation Period will be a Benefiting Participant under
this Section and thus be eligible to receive an allocation of Non-Safe Harbor Matching
Contributions for that Allocation Period in accordance with the following provisions:






	 	(1)	 	Participants Employed on the Last Day of the Allocation Period.
Any Participant who is an Employee on the last day of the Allocation Period and who
at any time during the Allocation Period is an Eligible Employee under Section
2.1(b)(1) will be a Benefiting Participant for that Allocation Period regardless of
the number of Hours of Service with which he or she is credited during the Allocation
Period.
	 
	 	(2)	 	Participants Who Terminate Before the Last Day of the Allocation
Period. Any Participant who Terminates Employment with the Employer before the
last day of the Allocation Period and who at anytime during the Allocation Period is
an Eligible Employee under Section 2.1(b)(1) will only be a Benefiting Participant
for that Allocation Period as follows: (A) a Participant who Terminates Employment
because of retirement on or after Normal Retirement Age will be a Benefiting
Participant regardless of the number of Hours of Service with which he or she is
credited during the Allocation Period; (B) a Participant who Terminates Employment
because of his or her death will be a Benefiting Participant regardless of the number
of Hours of Service with which he or she is credited during the Allocation Period;
(C) a Participant who Terminates Employment because of his or her Disability will be
a Benefiting Participant regardless of the number of Hours of Service with which he
or she is credited during the Allocation Period; and (D) a Participant who Terminates
Employment for reasons other than retirement on or after Normal Retirement Age, death
or Disability will be a Benefiting Participant regardless of the number of Hours of
Service with which he or she is credited during the Allocation Period.






	3.4	 	Non-Safe Harbor Non-Elective Contributions. Non-Safe Harbor Non-Elective Contributions are not permitted.
	 
	3.5	 	Qualified Matching Contributions . The Employer may make a Qualified Matching Contribution in such amount as the Employer,
in its sole discretion, may determine, subject to the following provisions:






	 	(a)	 	Contributions Treated as Qualified Matching Contributions. The Employer
may elect to treat all or any portion of a Matching Contribution as a Qualified Matching
Contribution.
	 
	 	(b)	 	Allocation of Qualified Matching Contributions. Qualified Matching
Contributions (QMACs), and any Non-Safe Harbor Matching Contributions that are treated as
QMACs, will be allocated to the Qualified Matching Contribution Account of each Eligible
Participant for that Allocation Period. Such contributions will be allocated in the
manner elected by the Administrator, subject to the following:






	 	(1)	 	Permissible Methods of Allocation. The Administrator may elect to
make the allocation from one of the following allocation methods: (A) pro-rata based
on the Compensation of each Eligible Participant; (B) pro-rata based on the
Compensation of each Eligible Participant starting with the Eligible Participant with
the lowest amount of Compensation and working up until the ADP Test or the ACP Test
is satisfied; (C) pro-rata based on the Elective Deferrals of each Eligible
Participant starting with the Eligible Participant with the lowest amount of Elective
Deferrals and working up until the ADP Test or the ACP Test is satisfied; (D) per
capita to each Eligible Participant; (E) per capita based on the Compensation of each
Eligible Participant starting with the Eligible Participant with the lowest amount of
Compensation and working up until the ADP Test or the ACP Test is satisfied; or (F)
per capita based on the Elective Deferrals of each Eligible Participant starting with
the Eligible Participant with the lowest amount of Elective Deferrals and working up
until the ADP Test or the ACP Test is satisfied.
	 
	 	(2)	 	Maximum Permissible Allocation. Notwithstanding anything in this
paragraph (b) to the contrary, the Sponsoring Employer may limit the maximum amount
of QMACs that will be allocated for any Allocation Period to an Eligible Participant,
to the limitation on disproportionate QMACs as described in Section 3.14(j)(3)(B) for
purposes of the ADP Test or the limitation on disproportionate Matching Contributions
as described in Sections 3.15(h) or 3.15(i) for purposes of the ACP Test.




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	 	(3)	 	Eligible Participants. As used in this paragraph (b), the term
“Eligible Participant” means any Participant who is a NHCE and who makes an Elective
Deferral during the Allocation Period being tested. Furthermore, the Administrator
may elect to limit the allocations of QMACs only to Eligible Participants who are
employed on the last day of the Allocation Period. In addition, if this 401(k) Plan
and/or this 401(m) Plan provides that Otherwise Excludable Participants are eligible
to participate and if the Plan applies Code §410(b)(4)(B) in determining whether the
401(k) Plan and/or the 401(m) Plan meets the requirements of Code §410(b)(1), then
the Administrator may elect to limit the allocations of QMACs only to either: (A)
Participants who are Non-Highly Compensated Employees and who are Otherwise
Excludable Participants; or (B) Participants who are Non-Highly Compensated Employees
and who are not Otherwise Excludable Participants. The Administrator may also elect
to allocate QMACs to one or more Participants who are Highly Compensated Employees.






	3.6	 	Qualified Non-Elective Contributions. The Employer may make a Qualified Non-Elective Contribution to the Plan in such amount
as the Employer, in its sole discretion, may determine, subject to the following provisions:






	 	(a)	 	Contributions Treated as Qualified Non-Elective Contributions. The
Employer may elect to treat all or any portion of a Non-Safe Harbor Non-Elective
Contribution as a Qualified Non-Elective Contribution.
	 
	 	(b)	 	Allocation of Qualified Non-Elective Contributions. Qualified Non-Elective
Contributions (QNECS), Non-Safe Harbor Non-Elective Contributions that are treated as
QNECS, and Prevailing Wage Contributions that are treated as QNECS will be allocated to
the Qualified Non-Elective Contribution Account of each Eligible Participant for that
Allocation Period. Such contributions will be allocated in the manner elected by the
Administrator, subject to the following provisions:






	 	(1)	 	Permissible Methods of Allocation. The Administrator may elect to
make the allocation from one of the following allocation methods: (A) pro-rata based
on the Compensation of each Eligible Participant; (B) pro-rata based on the
Compensation of each Eligible Participant starting with the Eligible Participant with
the lowest amount of Compensation and working up until the ADP Test or the ACP Test
is satisfied; (C) per capita to each Eligible Participant; or (D) per capita based on
the Compensation of each Eligible Participant starting with the Eligible Participant
with the lowest amount of Compensation and working up until the ADP Test or the ACP
Test is satisfied.
	 
	 	(2)	 	Maximum Permissible Allocation. Notwithstanding anything in this
paragraph (b) to the contrary, the Sponsoring Employer may limit the maximum amount
of QNECs to be allocated for any Allocation Period to an Eligible Participant, to the
limitation on disproportionate QNECs as described in paragraph 3.14(j)(3)(A) for
purposes of the ADP Test or Section 1.43(e)(4) for purposes of the ACP Test.
	 
	 	(3)	 	Eligible Participants. As used in this paragraph (b), the term
“Eligible Participant” means any Participant (A) who is a NHCE, and (B) who is
eligible, in the Administrator’s discretion, either to make an Elective Deferral
(regardless of whether such Participant actually makes an Elective Deferral) and/or
to receive a Non-Safe Harbor Matching Contribution (regardless of whether such
Participant actually receives a Non-Safe Harbor Matching Contribution) during the
Allocation Period being tested. Furthermore, the Administrator may elect to limit the
allocations of QNECs only to Eligible Participants who are employed on the last day
of the Allocation Period. In addition, if this 401(k) Plan and/or this 401(m) Plan
provides that Otherwise Excludable Participants are eligible to participate and if
the plan applies Code §410(b)(4)(B) in determining whether the 401(k) Plan and/or the
401(m) Plan meets the requirements of Code §410(b)(1), then the Administrator may
elect to limit the allocations of QNECs only to either: (A) Participants who are
Non-Highly Compensated Employees and who are Otherwise Excludable Participants; or
(B) Participants who are Non-Highly Compensated Employees and who are not Otherwise
Excludable Participants. Lastly, the Administrator may elect to allocate QNECs to one
or more Participants who are Highly Compensated Employees.






	3.7	 	Safe Harbor 401(k) Contributions. The Employer may make Safe Harbor 401(k) Contributions as set forth from time to time
in a Safe Harbor 401(k) Addendum, subject to the following provisions:






	 	(a)	 	ADP Safe Harbor Non-Elective Contributions. To the extent set forth in a
Safe Harbor 401(k) Addendum (or to the extent the Employer amends the Plan either by
executing a Safe Harbor 401(k) Addendum or via the Safe Harbor Notice), the Employer will
make an ADP Safe Harbor Non-Elective Contribution equal to 3% (or such higher percentage
as elected by the Employer) of the Compensation of each Safe Harbor




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	 	 	 	Participant. The
Employer may elect in a Safe Harbor 401(k) Addendum to make this ADP Safe Harbor
Non-Elective Contribution to a money purchase plan named in such addendum. For any
Allocation Period in which the Employer elects to make an ADP Safe Harbor Non-Elective
Contribution to the named money purchase plan, an ADP Safe Harbor Non-Elective
Contribution will be made to this Plan in lieu of the ADP Safe Harbor Non-Elective
Contribution to the money purchase plan unless each Safe Harbor Participant under this
Plan also participates in such other plan and such other plan has the same Plan Year as
this Plan. Such ADP Safe Harbor Non-Elective Contribution will be subject to the
provisions of Section 3.16.






	 	(b)	 	ADP Safe Harbor Matching Contributions. To the extent set forth in a Safe
Harbor 401(k) Addendum, an ADP Safe Harbor Matching Contribution (whether “Basic” or
“Enhanced”) will be made that is equal to the amount specified in a Safe Harbor 401(k)
Addendum, subject to the provisions of Section 3.16.
	 
	 	(c)	 	ACP Safe Harbor Matching Contributions. To the extent set forth in a Safe
Harbor 401(k) Addendum, the Employer may also make additional ACP Safe Harbor Matching
Contributions for each Allocation Period. Such ACP Safe Harbor Matching Contribution will
be subject to the provisions of Section 3.17.
	 
	 	(d)	 	True-Ups. If (1) the Allocation Period for either ADP Safe Harbor Matching
Contributions and/or ACP Safe Harbor Matching Contributions (which contributions, for
purposes of this paragraph, will hereafter be known as “Safe Harbor Matching
Contributions”) is a computation period that is less than the Plan Year, and (2) on the
last day of any Plan Year, the dollar amount of the Safe Harbor Matching Contributions
made on behalf of a Benefiting Participant is less than the dollar amount that would have
been made had the Safe Harbor Matching Contributions been contributed for an Allocation
Period of a Plan Year, then the Employer may elect, pursuant to the Employer’s discretion
and subject to any Safe Harbor Notice requirements, for any Plan Year to make an
additional Safe Harbor Matching Contribution so that the Safe Harbor Matching
Contribution contributed for a Benefiting Participant is equal to the Safe Harbor
Matching Contribution that would have been made had the Safe Harbor Matching
Contributions been contributed for an Allocation Period of the Plan Year. However, any
such additional Safe Harbor Matching Contributions can only be made to the Plan on a
uniform, nondiscriminatory basis.
	 
	 	(e)	 	Prorating the Code §401(a)(17) Compensation Limit for Each Allocation
Period. If the Allocation Period for either ADP Safe Harbor Matching Contributions
and/or ACP Safe Harbor Matching Contributions is a computation period that is less than
the Plan Year, then the Employer may elect, pursuant to the Employer’s discretion and
subject to any Safe Harbor Notice requirements, for any Plan Year to prorate the Code
§401(a)(17) Compensation Limit to each Allocation Period of the Plan Year. However, any
prorating of the Code §401(a)(17) Compensation Limit can only be made on a uniform,
nondiscriminatory basis.
	 
	 	(f)	 	Allocation of Safe Harbor 401(k) Contributions. Safe Harbor 401(k)
Contributions will be allocated as follows: (1) ADP Safe Harbor Matching Contributions
will be allocated to a Participant’s ADP Safe Harbor Matching Contribution Account; (2)
ADP Safe Harbor Non-Elective Contributions will be allocated to a Participant’s ADP Safe
Harbor Non-Elective Contribution Account; and (3) ACP Safe Harbor Matching Contributions
will be allocated to a Participant’s ACP Safe Harbor Matching Contribution Account.






	3.8	 	Rollover Contributions. Subject to any changes, limitations, or effective dates adopted by written notice
and/or procedures established and adopted by the Administrator pursuant to Section 8.6, any
Eligible Employee (whether a Participant or not) is permitted to make Rollover Contributions
to the Plan. In addition, the Administrator may permit Rollover Contributions by an Eligible
Employee or former Eligible Employee from The Men’s Wearhouse, Inc. Employee Stock Ownership
Plan on behalf of Eligible Employees and former Eligible Employees. Rollover Contributions
will be allocated to an Employee’s Rollover Contribution Account in which the Employee will
have a 100% Vested Interest. The Administrator may choose for investment purposes either to
segregate Rollover Contribution Accounts into separate interest bearing accounts or to invest
Rollover Contribution Accounts as part of the
general Trust Fund, except for that portion of an Employee’s Rollover Contribution Account
which an Employee may be permitted to self-direct pursuant to Section 7.4.






	3.9	 	Voluntary Employee Contributions. Voluntary Employee Contributions are not permitted.
	 
	3.10	 	Allocation of Earnings and Losses. As of each Valuation Date, amounts in Participants’ accounts/sub-accounts which have
not been segregated from the general Trust Fund for investment purposes (accounts which have
been segregated include any Directed Investment Accounts established under Section 7.4) and
which have not been distributed since the prior Valuation Date will have the net income of the
Trust Fund that has been earned since




-45-









 






	 	 	the prior Valuation Date allocated in accordance with
such rules and procedures that are established by the Administrator and that are applied in a
uniform and nondiscriminatory manner based upon the investments of the Trust Fund and the
Participants’ accounts/sub-accounts to which the net income is allocated. For purposes of this
Section, the term “net income” means the net of any interest, dividends, unrealized
appreciation and depreciation, capital gains and losses, and investment expenses of the Trust
Fund determined on each Valuation Date. However, Participants’ accounts and/or sub-accounts
which have been segregated from the general Trust Fund for investment purposes (accounts which
have been segregated include any Directed Investment Accounts established under Section 7.4)
will only have the net income earned thereon allocated thereto. Policy dividends or credits
will be allocated to the Participant’s Account for whose benefit the Policy is held.






	3.11	 	Forfeitures and Their Usage. The following provisions relate to Forfeitures and their usage and
allocation:






	 	(a)	 	When Forfeitures Occur. The date upon which a Forfeiture occurs of the
amount by which a Participant’s Account balance attributable to Employer contributions
exceeds his or her Vested Interest in the Participant’s Account balance attributable to
Employer contributions is the earlier of (1) the date that the Participant who Terminated
Employment receives a distribution of his or her Vested Interest under Article 5; or (2)
the date that the Participant incurs five consecutive Breaks in Service after Termination
of Employment. Effective as of the first day of Plan Year beginning in 2006 (or such
earlier effective date as may be provided in a separate amendment for implementing the
final Code §401(k) Regulations and as permitted by such Regulations), a Forfeiture of the
non-Vested portion of the Participant’s Account balance attributable to Employer
contributions will not occur pursuant to clause (1) of the preceding sentence unless the
entire Elective Deferral Account of the Participant who Terminated Employment is or has
been distributed. However, if a Participant’s Vested Interest in the entire Participant’s
Account balance attributable to Employer contributions is zero on the date that the
Participant Terminates Employment, then the Participant will be deemed to have received a
distribution of such Vested Interest on the date of Termination of Employment and a
Forfeiture of the Participant’s Account balance attributable to Employer contributions
will occur pursuant to the provisions of this paragraph on the date of such Termination
of Employment.
	 
	 	(b)	 	Grandfather Provision. Notwithstanding paragraph (a) to the contrary, with
respect to Participants who Terminate Employment prior to the execution date of the
pre-approved Plan restatement intended to initially comply with the requirements of the
Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA), the provisions of the
Plan in effect prior to such EGTRRA restatement execution date will be applied in
determining when Forfeitures occur if such provisions conflict with the preceding
paragraph.
	 
	 	(c)	 	Usage and Allocation of Forfeitures. On each annual Valuation Date, the
Administrator may elect to use all or any portion of the Forfeiture Account to pay
administrative expenses incurred by the Plan. The portion of the Forfeiture Account that
is not used to pay administrative expenses will be used first to restore previous
Forfeitures of Participants’ Accounts pursuant to Section 5.7 and/or to restore
Participants’ Accounts pursuant to Section 5.13. The portion of the Forfeiture Account
that is not used to pay administrative expenses and is not used to satisfy the provisions
of the previous sentence will then be allocated/used in accordance with the following
provisions:






	 	(1)	 	Forfeitures of Non-Safe Harbor Matching Contributions. Forfeitures
attributable to Non-Safe Harbor Matching Contributions will be used to reduce any
Employer contribution or combination of contributions, as determined by the
Administrator.
	 
	 	(2)	 	Forfeitures of ACP Safe Harbor Matching Contributions. Forfeitures
attributable to ACP Safe Harbor Matching Contributions, if any, will be used in the
manner described in a Safe Harbor 401(k) Addendum executed by the Sponsoring Employer
from time to time.






	3.12	 	Top Heavy Minimum Allocation. In any Plan Year in which the Plan is Top Heavy and a Key Employee receives an
allocation of Employer contributions or Forfeitures, each Participant who is described in
paragraph (a) below will receive a Top Heavy Minimum Allocation determined in accordance with
the following:






	 	(a)	 	Participants Who Must Receive the Top Heavy Minimum Allocation. The Top
Heavy Minimum Allocation will be made for each Participant who is a Non-Key Employee who
is employed by an Employer on the last day of the Plan Year, even if such Participant (1)
fails to complete any minimum Hours of Service/Period of Service required to receive an
allocation of Employer contributions or Forfeitures for the Plan Year; (2) fails to make
Elective Deferrals to the Plan in the case of a 401(k) plan; (3) receives 




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	 	 	 	Compensation
that is less than a stated amount; or (4) declines to make a mandatory employee
contribution to the Plan. The Top Heavy Minimum Allocation is not required for a
Participant whose participation is limited to a Rollover Contribution.






	 	(b)	 	Participation in Multiple Defined Contribution Plans. If (1) this Plan is
not part of a Required Aggregation Group or a Permissive Aggregation Group with a defined
benefit plan, (2) this Plan is part of a Required Aggregation Group or a Permissive
Aggregation Group with one or more defined contribution plans, (3) a Participant who is
described in paragraph (a) participates in this Plan and in one or more defined
contribution plans that are part of the Required Aggregation Group or the Permissive
Aggregation Group, and (4) the allocation of Employer contributions and Forfeitures of
each plan that is part of the Required Aggregation Group or the Permissive Aggregation
Group (when each plan is considered separately) is insufficient to satisfy the Top Heavy
Minimum Allocation requirement with respect to such Participant, the Top Heavy Minimum
Allocation requirement will nevertheless be satisfied if the aggregate allocation of
Employer contributions and Forfeitures that are made on behalf of such Participant under
this Plan and all other defined contribution plans that are part of the Required
Aggregation Group or the Permissive Aggregation Group (and any other defined contribution
plan that is sponsored by the Employer) is sufficient to satisfy the Top Heavy Minimum
Allocation requirement. However, if the aggregate allocation of Employer contributions
and Forfeitures that are made on behalf of a Participant under this Plan and all other
defined contribution plans that are part of the Required Aggregation Group or the
Permissive Aggregation Group (and any other defined contribution plan that is sponsored
by the Employer) is not sufficient to satisfy the Top Heavy Minimum Allocation
requirement, then the Employer will make an additional contribution on behalf of such
Participant to this Plan and/or to one or more defined contribution plans that are part
of the Required Aggregation Group or the Permissive Aggregation Group (or any other
defined contribution plan that is sponsored by the Employer) in order that the aggregate
allocation of Employer contributions and Forfeitures that are made on behalf of such
Participant under this Plan and all defined contribution plans that are part of the
Required Aggregation Group or the Permissive Aggregation Group (and any other defined
contribution plan that is sponsored by the Employer) satisfies the Top Heavy Minimum
Allocation requirement.
	 
	 	(c)	 	Required Aggregation Group or Permissive Aggregation Group With a DB Plan.
If this Plan is part of a Required Aggregation Group or a Permissive Aggregation Group
with a defined benefit plan, then the Sponsoring Employer may, in the Sponsoring
Employer’s discretion and in a uniform non-discriminatory manner which is intended to
satisfy the requirements of Code §416(f) regarding the preclusion of required duplication
and inappropriate omission of Top Heavy minimum benefits or Top Heavy Minimum
Allocations, determine to satisfy the requirements of Code §416 with respect to each
Participant described in paragraph (a) who participates in this Plan and in the defined
benefit plan which is part of the Required Aggregation Group or the Permissive
Aggregation Group, by any of the following methods:






	 	(1)	 	Defined Benefit Minimum Benefit. A defined benefit minimum, which
is an accrued benefit at any point in time equal to at least the product of (A) an
Employee’s average annual Code §415(c)(3) Compensation for the period of consecutive
years (not exceeding five) when the Employee had the highest aggregate Code
§415(c)(3) Compensation from the Employer and (B) the lesser of 2% per Year of
Service or 1-Year Period of Service, as applicable, with the Employer or 20%, subject
to the rules of Code §416 and the Regulations thereunder.
	 
	 	(2)	 	Floor Offset Arrangement. A floor offset approach, pursuant to
Revenue Ruling 76-259, under which the defined benefit minimum of the defined benefit
plan that is provided pursuant to paragraph (c)(1) is offset by the benefits provided
under the defined contribution plan.
	 
	 	(3)	 	Using Comparability. A demonstration, using a comparability
analysis pursuant to Revenue Ruling 81-202, that the plans are providing benefits at
least equal to the defined benefit minimum that is provided pursuant to paragraph
(c)(1) above.
	 
	 	(4)	 	5% Defined Contribution Allocation. An allocation of Employer
contributions and Forfeitures that are made on behalf of such Participant under this
Plan (or any defined contribution plan that is sponsored by the Employer) equal to 5%
of an Employee’s Code §415(c)(3) Compensation for each Plan Year that the Required
Aggregation Group or the Permissive Aggregation Group is Top Heavy.






	 	(d)	 	Frozen DB Plan After December 31, 2001. In determining Top Heavy minimum
benefits or Top Heavy Minimum Allocations in any Plan Year which begins after December
31, 2001, a defined benefit plan in




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	 	 	 	which no Key Employee and no former Key Employee
benefits (within the meaning of Code §410(b)) in the defined benefit plan during a Plan
Year will be disregarded in determining whether the defined benefit plan is part of a
Required Aggregation Group or a Permissive Aggregation Group with this Plan.






	 	(e)	 	Contributions That Can Be Used to Satisfy Top Heavy Minimum. All Employer
contributions to the Plan (other than (1) Elective Deferrals that are made on behalf of a
Participant and (2) for Plan Years beginning before 2002, Matching Contributions) will be
taken into account in determining if the Employer has satisfied the Top Heavy minimum
benefit and/or Top Heavy Minimum Allocation requirements of this Section. Furthermore,
the following Employer contributions that are made on behalf of a Participant to a 401(k)
Plan may be taken into account in determining whether the Top Heavy minimum benefit
and/or Top Heavy Minimum Allocation requirements have been satisfied: Non-Safe Harbor
Non-Elective Contributions; Qualified Non-Elective Contributions; ADP Safe Harbor
Non-Elective Contributions; for Plan Years beginning after 2001, Matching Contributions
(including Qualified Matching Contributions); and any other Employer contributions as may
be permitted by law.
	 
	 	(f)	 	Safe Harbor Plan and SIMPLE 401(k) Plan Exceptions. The Top Heavy Minimum
Allocation requirements will not apply to the Plan for any Plan Year in which the Plan is
a 401(k) Plan that consists solely of Elective Deferrals, ADP Safe Harbor Contributions
which meet the requirements of Code §401(k)(12), and, if applicable, ACP Safe Harbor
Matching Contributions (including ADP Safe Harbor Matching Contributions) which meet the
requirements of Code §401(m)(11), so long as each Participant (1) who is a Non-Key
Employee and (2) who is eligible to make Elective Deferrals is also a Safe Harbor
Participant for such Plan Year. Also, a SIMPLE 401(k) Plan is not subject to the Top
Heavy Minimum Allocation requirements.






	3.13	 	Failsafe Allocation. If the Plan fails to satisfy the minimum coverage requirements of Code §410(b), no
automatic “failsafe” is provided under the Plan. Rather, the Sponsoring Employer must timely
execute a corrective amendment pursuant to Section 11.1(f) of the Plan.






	3.14	 	Actual Deferral Percentage Test and Correction. If a 401(k) Plan is subject to the Actual Deferral Percentage Test (ADP Test) for
a Plan Year, then the following rules will apply:






	 	(a)	 	The ADP Test. The ADP for Participants who are Highly Compensated
Employees for the Plan Year that is being tested and the ADP for Participants who are
Non-Highly Compensated Employees for the Applicable Plan Year must satisfy one of the
following tests:






	 	(1)	 	1.25 Test. The ADP for Participants who are Highly Compensated
Employees for the Plan Year that is being tested will not exceed the ADP for
Participants who are Non-Highly Compensated Employees for the Applicable Plan Year
multiplied by 1.25; or
	 
	 	(2)	 	Multiplied By 2 or 2% Test. The ADP for Participants who are
Highly Compensated Employees for the Plan Year that is being tested will not exceed
the ADP for Participants who are Non-Highly Compensated Employees for the Applicable
Plan Year multiplied by 2.0, provided, that the ADP for Participants who are Highly
Compensated Employees for the Plan Year that is being tested does not exceed the ADP
for Participants who are Non-Highly Compensated Employees for the Applicable Plan
Year by more than 2 percentage points.






	 	(b)	 	Testing Methods and Restriction. The Sponsoring Employer may elect either
the Prior Year Testing Method or Current Year Testing Method. However, once the
Sponsoring Employer has elected the Current Year Testing Method, the Sponsoring Employer
can elect the Prior Year Testing Method for a Plan Year only if the Plan has used the
Current Year Testing Method for each of the preceding five (5) Plan Years (or if lesser,
the number of Plan Years that the Plan has been in existence) or if, as a result of a
merger or acquisition described in Code §410(b)(6)(C)(i), the Employer maintains both a
401(k) plan using the Prior Year Testing Method and a 401(k) plan using Current Year
Testing Method and the change is made within the transition period described in Code
§410(b)(6)(C)(ii).
	 
	 	(c)	 	Prior Year Testing Method for the First Plan Year. If the Sponsoring
Employer has elected the Prior Year Testing Method for the first Plan Year that the Plan
permits any Participant to make Elective Deferrals (and this is not a successor plan),
then the ADP for Participants who are Non-Highly Compensated Employees for the prior Plan
Year will be the greater of (1) three percent (3%), or (2) the ADP for Participants who
are Non-Highly Compensated Employees for the first Plan Year.




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	 	(d)	 	HCEs as Sole Participants in Plan Year Being Tested. If the Sponsoring
Employer has elected the Prior Year Testing Method and if there are no Participants who
were Non-Highly Compensated Employees in the prior Plan Year, then the Plan will be
deemed to satisfy the ADP Test for the Plan Year that is being tested. Similarly, if the
Sponsoring Employer has elected the Current Year Testing Method and if there are no
Participants who are Non-Highly Compensated Employees in the current Plan Year, then the
Plan will be deemed to satisfy the ADP Test for the Plan Year that is being tested. The
provisions of this paragraph may be utilized with the permissive disaggregation rule of
Section 3.14(e)(2).
	 
	 	(e)	 	Special Rule for Early Participation. If this 401(k) Plan provides that
Otherwise Excludable Participants are eligible to participate and if the Plan applies
Code §410(b)(4)(B) in determining whether the 401(k) Plan meets the requirements of Code
§410(b)(1), then in determining whether the 401(k) Plan satisfies the ADP Test, the
Sponsoring Employer may, in the Sponsoring Employer’s discretion (but is not required
to), either:






	 	(1)	 	Early Participation Rule. Pursuant to Code §401(k)(3)(F), perform
the ADP Test for the Plan (determined without regard to disaggregation under
Regulation §1.410(b)—7(c)(3)), by using the ADP for all Participants who are Highly
Compensated Employees for the Plan Year and the ADP for Participants who are
Non-Highly Compensated Employees for the Applicable Plan Year, disregarding all
Otherwise Excludable Participants who are Non-Highly Compensated Employees; or
	 
	 	(2)	 	Permissive Disaggregation Rule. Pursuant to Regulation
§1.401(k)—1(b)(4), disaggregate the Plan into separate plans and perform the ADP
Test separately for all Participants who are Otherwise Excludable Participants and
for all Participants who are not Otherwise Excludable Participants.






	 	(f)	 	HCEs and NHCEs for a Particular Plan Year. A Participant is a Highly
Compensated Employee for a particular Plan Year if that Participant meets the definition
of a Highly Compensated Employee in effect for that Plan Year. Similarly, a Participant
is a Non-Highly Compensated Employee for a particular Plan Year if the Participant does
not meet the definition of a Highly Compensated Employee in effect for that Plan Year.
	 
	 	(g)	 	ADP for an HCE in Multiple CODAs of the Sponsoring Employer. The ADP for
any Participant who is a Highly Compensated Employee for the Plan Year and who is
eligible to have Elective Deferrals (and Qualified Non-Elective Contributions or
Qualified Matching Contributions, or both, if treated as Elective Deferrals for purposes
of the ADP Test) allocated to such Participant’s accounts under two or more cash or
deferral arrangements (CODAs) described in Code §401(k), that are maintained by the
Sponsoring Employer, will be determined as if such Elective Deferrals (and, if
applicable, such Qualified Non-Elective Contributions or Qualified Matching
Contributions, or both) were made under a single arrangement. If a Highly Compensated
Employee participates in two or more CODAs of the Sponsoring Employer that have different
plan years, all Elective Deferrals made during the Plan Year under all such arrangements
will be
aggregated. For Plan Years beginning prior to 2006 (or the year of such earlier effective
date as may be provided in a separate amendment for implementing the final §401(k)
Regulations and as permitted by such Regulations), all such CODAs ending with or within
the same calendar year will be treated as a single arrangement. Notwithstanding the
foregoing, certain plans will be treated as separate if mandatorily disaggregated under
the §401(k) Regulations.
	 
	 	(h)	 	Plan Aggregation and Coverage Change Rules. If this Plan satisfies the
requirements of Code §401(k), §401(a)(4), or §410(b) only by being aggregated with one or
more other plans of the Sponsoring Employer, or if one or more other plans satisfy the
requirements of Code §401(k), §401(a)(4), or §410(b) only by being aggregated with this
Plan, then this Section will be applied by determining the ADP of the Employees as if all
such plans (including this Plan) were a single plan. If the Prior Year Testing Method is
being used and if more than 10% of the Employer’s NHCEs are involved in a plan coverage
change as defined in Regulation §1.401(k)-2(c)(4), then any adjustments to the Non-Highly
Compensated Employees’ ADP for the prior Plan Year will be made in accordance with such
Regulations. Plans may be aggregated in order to satisfy Code §401(k) only if they have
the same Plan Year and use the same ADP testing method (the Prior Year Testing Method or
the Current Year Testing Method).
	 
	 	(i)	 	Contributions Must Be Made Within 12 Months. Elective Deferrals, Qualified
Non-Elective Contributions, and Qualified Matching Contributions must be made, for
purposes of determining the ADP Test, by the end of the 12-month period immediately
following the Plan Year to which the contributions relate.




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	 	(j)	 	Correction Methods for Failed ADP Test. If a 401(k) Plan is subject to the
Actual Deferral Percentage Test (ADP Test) for a Plan Year and the Plan fails to satisfy
the ADP Test for such Plan Year, then the Sponsoring Employer will use one or more of the
following correction methods to satisfy the ADP Test for such Plan Year (and the
Sponsoring Employer has the discretion to determine which one or more of the correction
methods may be used to satisfy the ADP Test):






	 	(1)	 	Distribution of Excess Contributions Plus Income or Loss. Excess
Contributions of Highly Compensated Employee(s), plus any income and minus any loss
allocable to such Excess Contributions, may be distributed pursuant to Section 5.19.
	 
	 	(2)	 	Recharacterization as Catch-Up Contributions. To the extent that a
catch-up eligible Participant who is a Highly Compensated Employee is to receive a
distribution of Excess Contributions, and to the extent that such catch-up eligible
Participant has not exceeded the Participant’s Catch-Up Contribution Limit, the
Excess Contributions of such Participant may be recharacterized as Catch-Up
Contributions (to the extent that the recharacterized Catch-Up Contributions do not
cause the Catch-Up Contribution Limit to be exceeded for the taxable year of the
Participant).
	 
	 	(3)	 	QMACs and QNECs. The Sponsoring Employer may make Qualified
Matching Contributions pursuant to Section 3.5 and/or Qualified Non-Elective
Contributions pursuant to Section 3.6 to satisfy the ADP Test, subject to the
following limitations:






	 	(A)	 	Limitation on Disproportionate QNECs. Qualified
Non-Elective Contributions cannot be taken into account in the ADP Test of a Plan
Year for a NHCE to the extent the QNECs exceed the product of (i) that NHCE’s
Code §414(s) Compensation, multiplied by (ii) the greater of [a] 5% (or 10% of a
NHCE’s Code §414(s) Compensation with respect to an Employer’s obligation to make
Prevailing Wage Contributions to the Plan), or [b] two times the Plan’s
Representative Contribution Rate. Any QNEC used in an ACP Test under Regulation
§1.401(m)—2(a)(6) (including the determination of the Representative
Contribution Rate for purposes of Regulation §1.401(m)—2(a)(6)(v)(B)), cannot be
used for purposes of the ADP Test (including the determination of the
Representative Contribution Rate for purposes of the ADP Test).
	 
	 	(B)	 	Limitation on QMACs. Qualified Matching Contributions are
permitted to be used in the ADP Test only to the extent that such Qualified
Matching Contributions are Matching Contributions that are not precluded from
being taken into account under the ACP Test for the Plan Year under the rules of
Regulation §1.401(m)—2(a)(5)(ii).
	 
	 	(C)	 	Prohibition Against Double-Counting. Qualified
Non-Elective Contributions and Qualified Matching Contributions cannot be taken
into account in the ADP Test to the extent such
contributions are taken into account for purposes of satisfying any other ADP Test,
any ACP Test, or the requirements of Regulation §1.401(k)—3, §1.401(m)—3 or
§1.401(k)—4. Matching Contributions that are made pursuant to Regulation
§1.401(k)—3(c) cannot be taken into account under the ADP Test. Furthermore, if
this Plan switches from the Current Year Testing Method to the Prior Year Testing
Method pursuant to Regulation §1.401(k)—2(c), then Qualified Non-Elective
Contributions that are taken into account under the Current Year Testing Method for
a Plan Year may not be taken into account under the Prior Year Testing Method for
the next Plan Year.






	3.15	 	Actual Contribution Percentage Test and Correction. If a 401(m) Plan is subject to the Actual Contribution Percentage Test (ACP Test)
for a Plan Year, then the following rules will apply:






	 	(a)	 	The ACP Test. The ACP for Participants who are Highly Compensated
Employees for the Plan Year that is being tested and the ACP for Participants who are
Non-Highly Compensated Employees for the Applicable Plan Year must satisfy one of the
following tests:






	 	(1)	 	1.25 Test. The ACP for Participants who are Highly Compensated
Employees for the Plan Year that is being tested will not exceed the ACP for
Participants who are Non-Highly Compensated Employees for the Applicable Plan Year
multiplied by 1.25; or




-50-









 












	 	(2)	 	Multiplied By 2 or 2% Test. The ACP for Participants who are
Highly Compensated Employees for the Plan Year that is being tested will not exceed
the ACP for Participants who are Non-Highly Compensated Employees for the Applicable
Plan Year multiplied by 2.0, provided, that the ACP for Participants who are Highly
Compensated Employees for the Plan Year that is being tested does not exceed the ACP
for Participants who are Non-Highly Compensated Employees for the Applicable Plan
Year by more than 2 percentage points.






	 	(b)	 	Testing Methods and Restriction. The Sponsoring Employer may elect either
the Prior Year Testing Method or Current Year Testing Method. However, once the
Sponsoring Employer has elected the Current Year Testing Method, the Sponsoring Employer
can elect the Prior Year Testing Method for a Plan Year only if the Plan has used the
Current Year Testing Method for each of the preceding five (5) Plan Years (or if lesser,
the number of Plan Years that the Plan has been in existence) or if, as a result of a
merger or acquisition described in Code §410(b)(6)(C)(i), the Employer maintains both a
401(m) plan using the Prior Year Testing Method and a 401(m) plan using Current Year
Testing Method and the change is made within the transition period described in Code
§410(b)(6)(C)(ii).
	 
	 	(c)	 	Prior Year Testing Method for the First Plan Year. If the Sponsoring
Employer has elected the Prior Year Testing Method for the first Plan Year that the Plan
permits any Participant to make Employee Contributions, provides for Non-Safe Harbor
Matching Contributions, or both (and this is not a successor plan), then the ACP for
Participants who are Non-Highly Compensated Employees for the prior Plan Year will be the
greater of (1) three percent (3%), or (2) the ACP for Participants who are Non-Highly
Compensated Employees for the first Plan Year.
	 
	 	(d)	 	HCEs as Sole Participants in Plan Year Being Tested. If the Sponsoring
Employer has elected the Prior Year Testing Method and if there are no Participants who
were Non-Highly Compensated Employees in the prior Plan Year, then the Plan will be
deemed to satisfy the ACP Test for the Plan Year that is being tested. Similarly, if the
Sponsoring Employer has elected the Current Year Testing Method and if there are no
Participants who are Non-Highly Compensated Employees in the current Plan Year, then the
Plan will be deemed to satisfy the ACP Test for the Plan Year that is being tested. The
provisions of this paragraph may be utilized with the permissive disaggregation rule of
Section 3.15(e)(2).
	 
	 	(e)	 	Special Rule for Early Participation. If this 401(m) Plan provides that
Otherwise Excludable Participants are eligible to participate and if the Plan applies
Code §410(b)(4)(B) in determining whether the 401(m) Plan meets the requirements of Code
§410(b)(1), then in determining whether the 401(m) Plan satisfies the ACP Test, the
Sponsoring Employer may, in the Sponsoring Employer’s discretion (but is not required
to), either:






	 	(1)	 	Early Participation Rule. Pursuant to Code §401(m)(5)(C), perform
the ACP Test for the Plan (determined without regard to disaggregation under
Regulation §1.410(b)—7(c)(3)), by using the ACP for all Participants who are Highly
Compensated Employees for the Plan Year and the ACP for Participants who are
Non-Highly Compensated Employees for the Applicable Plan Year, disregarding all
Otherwise Excludable Participants who are Non-Highly Compensated Employees; or
	 
	 	(2)	 	Permissive Disaggregation Rule. Pursuant to Regulation
§1.401(m)—1(b)(4), disaggregate the Plan into separate plans and perform the ACP
Test separately for all Participants who are Otherwise Excludable Participants and
for all Participants who are not Otherwise Excludable Participants.






	 	(f)	 	HCEs and NHCEs for a Particular Plan Year. A Participant is a Highly
Compensated Employee for a particular Plan Year if that Participant meets the definition
of a Highly Compensated Employee in effect for that Plan Year. Similarly, a Participant
is a Non-Highly Compensated Employee for a particular Plan Year if the Participant does
not meet the definition of a Highly Compensated Employee in effect for that Plan Year.
	 
	 	(g)	 	Plan Aggregation and Coverage Change Rules. If this Plan satisfies the
requirements of Code §401(m), §401(a)(4), or §410(b) only by being aggregated with one or
more other plans of the Sponsoring Employer, or if one or more other plans satisfy the
requirements of Code §401(m), §401(a)(4), or §410(b) only by being aggregated with this
Plan, this Section will be applied by determining the ACP of the Employees as if all such
plans (including this Plan) were a single plan. If the Plan uses the Prior Year Testing
Method and if more than 10% of the Employer’s NHCEs are involved in a plan coverage
change as defined in Regulation §1.401(m)-2(c)(4), any adjustments to the NHCEs’ ACP for
the prior Plan Year will be made in accordance






-51-











 






	 	 	 	with such Regulations. Plans may be aggregated to satisfy Code §401(m) only if they have
the same Plan Year and use the same ACP testing method (Prior Year Testing Method or
Current Year Testing Method).






	 	(h)	 	Disproportionate Matching Contributions With Respect to Elective Deferrals
Excluded From ACP Test. A Matching Contribution with respect to an Elective Deferral
for a Participant who is a Non-Highly Compensated Employee is not taken into account
under the ACP Test for a Plan Year to the extent that the Matching Contribution exceeds
the greatest of (1) 5% of such Participant’s Code §414(s) Compensation; (2) 100% of the
Participant’s Elective Deferrals for the Plan Year; and (3) the product of 2 times the
Plan’s Representative Matching Rate and the Participant’s Elective Deferrals for the Plan
Year.
	 
	 	(i)	 	Disproportionate Matching Contributions With Respect to Employee Contributions
Excluded From ACP Test. If the Plan provides a Matching Contribution with respect to
the sum of a Participant’s Employee Contributions and Elective Deferrals, then the sum of
the Participant’s Employee Contributions and Elective Deferrals is substituted for the
amount of the Participant’s Elective Deferrals in paragraph (h). Similarly, if the Plan
provides a Matching Contribution with respect to a Participant’s Employee Contributions
(but not Elective Deferrals), then the Participant’s Employee Contributions are
substituted for the amount of the Participant’s Elective Deferrals in paragraph (h).
	 
	 	(j)	 	Matching Contributions Taken Into Account Under Safe Harbor Provisions. If
this Plan satisfies the ACP safe harbor requirements of Code §401(m)(11) for a Plan Year
but nonetheless must satisfy the ACP Test because the Plan provides for Employee
Contributions for such Plan Year, then the Sponsoring Employer is permitted (but is not
required) to apply the ACP Test by disregarding all Matching Contributions with respect
to all Participants. In addition, if this Plan satisfies the ADP safe harbor requirements
of Regulation §1.401(k)—3 for a Plan Year using ADP Safe Harbor Matching Contributions
but does not satisfy the ACP safe harbor requirements of Code §401(m)(11) for such Plan
Year, then the Sponsoring Employer is permitted (but is not required) to apply the ACP
Test by excluding Matching Contributions with respect to all Participants that do not
exceed 4% of each Participant’s Code §414(s) Compensation. If the Plan disregards any
Matching Contributions pursuant to this paragraph, then this disregard must be applied to
all Participants.
	 
	 	(k)	 	Multiple Use Test. Effective for Plan Years beginning after December 31,
2001, the multiple use test is repealed and does not apply to this Plan, pursuant to
EGTRRA §666.
	 
	 	(l)	 	Correction Methods for Failed ACP Test. If a 401(m) Plan is subject to the
Actual Contribution Percentage Test (ACP Test) for a Plan Year and the Plan fails to
satisfy the ACP Test for such Plan Year, then the Sponsoring Employer will use one or
more of the following correction methods to satisfy the ACP Test for such Plan Year (and
the Sponsoring Employer has the discretion to determine which one or more of the
correction methods may be used to satisfy the ACP Test):






	 	(1)	 	Distribution of Excess Aggregate Contributions Plus Income or
Loss. Excess Aggregate Contributions of Highly Compensated Employee(s), plus any
income and minus any loss allocable to such Excess Aggregate Contributions, may be
forfeited (if forfeitable) and may be distributed (if non-forfeitable), pursuant to
Section 5.20.
	 
	 	(2)	 	QNECs and QMACs. The Sponsoring Employer may make Qualified
Matching Contributions pursuant to Section 3.5 and/or Qualified Non-Elective
Contributions pursuant to Section 3.6 to satisfy the ACP Test, subject to the
following limitations: (A) Qualified Non-Elective Contributions are permitted to be
used in the ACP Test only to the extent that such Qualified Non-Elective
Contributions satisfy the limitations of Section 1.43(e); and (B) Qualified Matching
Contributions are permitted to be used in the ACP Test only to the extent that such
Qualified Matching Contributions satisfy the limitations of Section 1.43(c), 1.43(f),
1.43(g), and either 3.15(h) or 3.15(i).






	3.16	 	ADP Safe Harbor Contributions. A 401(k) Plan that satisfies the ADP Safe Harbor Contribution requirements of Code
§401(k)(12) for a Plan Year is a Safe Harbor 401(k) Plan if it satisfies the following
requirements:






	 	(a)	 	ADP Safe Harbor Contribution. The Sponsoring Employer makes an ADP Safe
Harbor Contribution on behalf of each Safe Harbor Participant, equal to either an ADP
Safe Harbor Non-Elective Contribution or an ADP Safe Harbor Matching Contribution, that
satisfies the following requirements:




-52-









 












	 	(1)	 	ADP Safe Harbor Non-Elective Contribution. An ADP Safe Harbor
Non-Elective Contribution equal to at least three percent (3%) of the Safe Harbor
Participant’s Compensation for the Plan Year; or
	 
	 	(2)	 	ADP Safe Harbor Matching Contribution. An ADP Safe Harbor Matching
Contribution in an amount determined under either a basic matching formula or an
enhanced matching formula, that satisfies the following requirements:






	 	(A)	 	Basic Matching Formula. An ADP Safe Harbor Matching
Contribution in an amount equal to the sum of (i) 100% of the amount of the Safe
Harbor Participant’s Elective Deferrals that do not exceed 3% of the Safe Harbor
Participant’s Compensation; plus (ii) 50% of the amount of the Safe Harbor
Participant’s Elective Deferrals that exceed 3% of the Safe Harbor Participant’s
Compensation but that do not exceed 5% of the Safe Harbor Participant’s
Compensation.
	 
	 	(B)	 	Enhanced Matching Formula. An ADP Safe Harbor Matching
Contribution formula that, at any rate of the Safe Harbor Participant’s Elective
Deferrals, provides an aggregate amount of ADP Safe Harbor Matching Contributions
that is at least equal to the aggregate amount of ADP Safe Harbor Matching
Contributions that would have been provided under the basic matching formula of
subparagraph (a)(2)(A) above. Furthermore, the ratio of a Safe Harbor
Participant’s ADP Safe Harbor Matching Contributions under the enhanced matching
formula for a Plan Year to the Safe Harbor Participant’s Elective Deferrals may
not increase as the amount of a Safe Harbor Participant’s Elective Deferrals
increases.
	 
	 	(C)	 	Limitation on HCE Matching Contributions. The ratio of ADP
Safe Harbor Matching Contributions to Elective Deferrals of a Safe Harbor
Participant who is a Highly Compensated Employee must not exceed the ratio of ADP
Safe Harbor Matching Contributions to Elective Deferrals of any Safe Harbor
Participant who is a Non-Highly Compensated Employee with Elective Deferrals at
the same percentage of Compensation as any Highly Compensated Employee.
	 
	 	(D)	 	ADP Safe Harbor Matching Contributions on Employee
Contributions. ADP Safe Harbor Matching Contributions may be made on both
Elective Deferrals and Employee Contributions if the ADP Safe Harbor Matching
Contributions are made on the sum of Elective Deferrals and Employee
Contributions on the same terms as ADP Safe Harbor Matching Contributions that
are made with respect to Elective Deferrals alone. Alternatively, ADP Safe Harbor
Matching Contributions may be made on Elective Deferrals and Employee
Contributions if ADP Safe Harbor Matching Contributions on Elective Deferrals are
not affected by the amount of Employee Contributions.
	 
	 	(E)	 	Periodic Matching Contributions. If the Employer elects to
contribute and allocate separately ADP Safe Harbor Matching Contributions for an
Allocation Period of less than the Plan Year (e.g., each payroll period or with
respect to all payroll periods ending with or within each month or quarter of a
Plan Year), then such ADP Safe Harbor Matching Contributions with respect to any
Elective Deferrals made during a Plan Year quarter will be contributed to the
Plan by the last day of the immediately following Plan Year quarter.
	 
	 	(F)	 	Catch-Up Contributions. Catch-Up Contributions will be
treated as any other Elective Deferrals and will be matched according to the ADP
Safe Harbor Matching Contribution formula as if the Catch-Up Contributions were
any other Elective Deferrals.
	 
	 	(G)	 	Permissible Restrictions on Elective Deferrals by NHCEs.
Elective Deferrals by Safe Harbor Participants who are NHCEs cannot be
restricted, except pursuant to the following rules:






	 	(i)	 	Restrictions on Election Periods. The Plan may limit
the frequency and duration of periods in which Safe Harbor Participants may
make or change cash or deferred elections under the Plan. However, a Safe
Harbor Participant must have a reasonable opportunity (including a reasonable
period after receipt of the Safe Harbor Notice) to make or change a cash or
deferred election for the Plan Year. A 30-day period is deemed to be a
reasonable period to make or change a cash or deferred election.
	 
	 	(ii)	 	Restrictions on Amount of Elective Deferrals. The
Plan may limit the amount of Elective Deferrals that may be made by a Safe
Harbor Participant, provided that each Safe Harbor




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	 	 	 	Participant who is a NHCE
is permitted (unless restricted under paragraph (a)(2)(G)(iv)) to make
Elective Deferrals in an amount that is at least sufficient to receive the
maximum amount of ADP Safe Harbor Matching Contributions available under the
Plan for the Plan Year, and the Safe Harbor Participant who is a NHCE is
permitted to elect any lesser amount of Elective Deferrals. However, the Plan
may limit cash or deferred elections to whole percentages of Compensation or
whole dollar amounts.
	 
	 	(iii)	 	Restrictions on Types of Compensation that May Be
Deferred. The Plan may limit the types of Compensation that may be
deferred by a Safe Harbor Participant, provided that each Safe Harbor
Participant who is a Non-Highly Compensated Employee is permitted to make
Elective Deferrals under a definition of Compensation that is a reasonable
definition of compensation within the meaning of Regulation
§1.414(s)—1(d)(2). Therefore, the definition of Compensation from which
Elective Deferrals may be made is not required to satisfy the
nondiscrimination requirement of Regulation §1.414(s)—1(d)(3).
	 
	 	(iv)	 	Restrictions Due to Limitations Under the Code. The
Plan may limit the amount of Elective Deferrals made by an a Safe Harbor
Participant under the Plan either [a] because of the limitations of Code
§402(g) or §415; or [b] because, on account of a financial hardship
distribution, the Safe Harbor Participant’s ability to make Elective Deferrals
has been suspended for 6 months in accordance with Regulation
§1.401(k)—1(d)(3)(iv)(E).






	 	(b)	 	Safe Harbor Notice. The Sponsoring Employer must give a Safe Harbor Notice
to each Safe Harbor Participant, which must satisfy the following content and timing
requirements:






	 	(1)	 	Safe Harbor Notice Must Be Written. The Safe Harbor Notice must be
in writing or in such other form of communication as permitted by Regulation
§1.401(a)—21.
	 
	 	(2)	 	Content Requirements. The content requirement for a Safe Harbor
Notice is satisfied if the Safe Harbor Notice is sufficiently accurate and
comprehensive to inform the Safe Harbor Participant of the Safe Harbor Participant’s
rights and obligations under the Plan; and the Safe Harbor Notice is written in a
manner calculated to be understood by the average Safe Harbor Participant in the
Plan. A Safe Harbor Notice will satisfy this content requirement if the Safe Harbor
Notice accurately describes (A) the ADP Safe Harbor Contribution formula used by the
Plan (including a description of the levels of ADP Safe Harbor Matching
Contributions, if any, available under the Plan); (B) any other contributions under
the Plan or Matching Contributions to another plan on account of Elective Deferrals
or Employee Contributions under this Plan (including the potential for discretionary
Matching Contributions) and the conditions under which such contributions are made;
(C) the plan to which the ADP Safe Harbor Contribution will be made (if different
than this Plan); (D) the type and amount of Compensation that may be deferred under
the Plan; (E) how to make cash or deferred elections, including any administrative
requirements that apply to such elections; (F) the periods available under the Plan
for making cash or deferred elections; (G) the distribution and Vesting provisions
applicable to contributions under the Plan; and (H) information that makes it easy to
obtain additional information about the Plan (including an additional copy of the
summary plan description) such as telephone numbers, addresses and, if applicable,
electronic addresses, of individuals or offices from whom Safe Harbor Participants
can obtain such Plan information. The Safe Harbor Notice may cross-reference relevant
portions of a summary plan description that provides the same information that would
be provided (or is concurrently provided) to Safe Harbor Participants, with respect
to information described in (i) paragraph (b)(2)(B) (relating to any other
contributions under the Plan); (ii) paragraph (b)(2)(C) (relating to the plan to
which safe harbor contributions will be made); and/or (iii) paragraph (b)(2)(D)
(relating to the type and amount of Compensation that may be deferred under the
Plan).
	 
	 	(3)	 	Timing Requirement. The timing requirement for a Safe Harbor
Notice is satisfied if the Safe Harbor Notice is provided within a reasonable period
before the beginning of the Plan Year (or, in the Plan Year in which an Employee will
become a Safe Harbor Participant, within a reasonable period before the Employee
becomes a Safe Harbor Participant). The determination of whether a Safe Harbor Notice
satisfies the timing requirement is based on all of the relevant facts and
circumstances. However, this timing requirement is deemed to be satisfied if at least
30 days, but not more than 90 days, or any other reasonable period, before the
beginning of a Plan Year, the Safe Harbor Notice is given to each Safe Harbor
Participant for the Plan Year. In the case of an Employee who does not receive the Safe Harbor




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	 	 	 	Notice within the period described in the previous sentence because the
Employee becomes a Safe Harbor Participant after the 90th day before the beginning of
the Plan Year, the timing requirement is deemed to be satisfied if the Safe Harbor
Notice is provided no more than 90 days before the Employee becomes a Safe Harbor
Participant (and no later than the date that the Employee becomes a Safe Harbor
Participant). The preceding sentence would apply in the case of any Employee who
becomes a Safe Harbor Participant for the first Plan Year under a newly established
plan that provides for Elective Deferrals, or would apply in the case of the first
Plan Year in which an Employee becomes a Safe Harbor Participant under an existing
plan that provides for Elective Deferrals.






	 	(c)	 	Plan Year Requirement. Except as provided in this paragraph or paragraph
(d), the Sponsoring Employer must adopt ADP Safe Harbor Contribution provisions before
the first day of the Plan Year and remain in effect for an entire 12-month Plan Year. In
addition, except as provided in paragraph (e), if the Plan includes ADP Safe Harbor
Contribution provisions, then the Plan cannot be amended to change such provisions for
that Plan Year. Moreover, if ADP Safe Harbor Non-Elective Contributions or ADP Safe
Harbor Matching Contributions will be made to another plan for a Plan Year, provisions
under that other plan that specify that the ADP Safe Harbor Contributions will be made
and provide that the contributions will be ADP Safe Harbor Non-Elective Contributions or
ADP Safe Harbor Matching Contributions must also be adopted before the first day of that
Plan Year. A 401(k) Plan will be considered to be a Safe Harbor 401(k) Plan for a Plan
Year of less than 12 months, pursuant to the following rules:






	 	(1)	 	Initial Plan Year. If this Plan is a newly established plan (other
than a successor plan within the meaning of Regulation §1.401(k)—2(c)(2)(iii)), then
the Plan Year may be less than 12 months, provided that the Plan Year is at least 3
months long (or, in the case of a newly established Employer that establishes the
Plan as soon as administratively feasible after the employer comes into existence, a
shorter period). Similarly, a cash or deferred arrangement may be added to an
existing profit sharing, stock bonus, or pre-ERISA money purchase pension plan for
the first time during that Plan Year, provided that (A) the Plan is not a successor
plan; and (B) the cash or deferred arrangement is made effective no later than 3
months prior to the end of the Plan Year.
	 
	 	(2)	 	Change of Plan Year. If the Plan has a short Plan Year as a result
of changing its Plan Year, then the Plan Year may be less than 12 months, provided
that (A) the Plan satisfied the requirements of this Section for the immediately
preceding Plan Year; and (B) the Plan satisfies the requirements of this Section
(determined without regard to paragraph (e)) for the immediately following Plan Year
(or for the immediately following 12 months if the immediately following Plan Year is
less than 12 months).
	 
	 	(3)	 	Final Plan Year. If the Plan terminates during a Plan Year, then
the final Plan Year may be less than 12 months, provided that the Plan satisfies the
requirement of this Section through the date of termination and either (A) the Plan
satisfies the requirements of paragraph (e), treating the termination of the Plan as
a reduction or suspension of ADP Safe Harbor Matching Contributions, other than the
requirement that Safe Harbor Participants have a reasonable opportunity to change
their cash or deferred elections and, if applicable, Employee Contribution elections;
or (B) the Plan termination is in connection with a transaction described in Code
§410(b)(6)(C) or the employer incurs a substantial business hardship comparable to a
substantial business hardship described in Code §412(d).






	 	(d)	 	Contingent ADP Safe Harbor Non-Elective Contributions. Notwithstanding
paragraph (c), if the Plan provides for the use of the Current Year Testing Method, then
the Plan may be amended after the first day of the Plan Year and no later than 30 days
before the last day of the Plan Year to adopt ADP Safe Harbor Non-Elective Contributions
for the Plan Year, effective as of the first day of the Plan Year, but only if the Plan
provides the contingent Safe Harbor Notice and follow-up Safe Harbor Notice:






	 	(1)	 	Contingent Safe Harbor Notice Provided. The requirement to provide
the contingent Safe Harbor Notice is satisfied, if the Sponsoring Employer provides a
Safe Harbor Notice that would satisfy the requirements of paragraph (b), except that,
in lieu of setting forth the ADP Safe Harbor Contributions used under the Plan as set
forth in paragraph (b)(2)(A), the Safe Harbor Notice specifies that the Plan may be
amended during the Plan Year to include the ADP Safe Harbor Non-Elective Contribution
and that, if the Plan is amended, a follow-up Safe Harbor Notice will be provided.




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	 	(2)	 	Follow-up Safe Harbor Notice Requirement. The requirement to
provide the follow-up Safe Harbor Notice is satisfied if, no later than 30 days
before the last day of the Plan Year, each Safe Harbor Participant is given a Safe
Harbor Notice that states that the ADP Safe Harbor Non-Elective Contribution will be
made for the Plan Year. The Safe Harbor Notice must be in writing or in such other
form of communication as permitted by Regulation §1.401(a)—21 and is permitted to be
combined with a contingent Safe Harbor Notice for the next Plan Year.






	 	(e)	 	Permissible Reduction or Suspension of ADP Safe Harbor Matching
Contributions. If the Plan provides for ADP Safe Harbor Matching Contributions for a
Plan Year, then the Plan may be amended during the Plan Year to reduce or suspend ADP
Safe Harbor Matching Contributions on future Elective Deferrals (and, if applicable,
Employee Contributions), provided that:






	 	(1)	 	Supplemental Notice. All Safe Harbor Participants are provided a
supplemental notice in writing or in such other form of communication as permitted by
Regulation §1.401(a)—21, that explains (A) the consequences of the amendment which
reduces or suspends ADP Safe Harbor Matching Contributions on future Elective
Deferrals and, if applicable, Employee Contributions; (B) the procedures for changing
their cash or deferred election and, if applicable, their Employee Contribution
elections; and (C) the effective date of the amendment.
	 
	 	(2)	 	Effective Date. The reduction or suspension of ADP Safe Harbor
Matching Contributions is effective no earlier than the later of (A) 30 days after
Safe Harbor Participants are provided the supplemental notice, or (B) the date that
the amendment is adopted.
	 
	 	(3)	 	Opportunity to Change Deferral Elections. Safe Harbor Participants
are given a reasonable opportunity (including a reasonable period after receipt of
the supplemental notice) prior to the reduction or suspension of safe harbor matching
contributions to change their cash or deferred elections and, if applicable, their
Employee Contribution elections.
	 
	 	(4)	 	Satisfaction of ADP Test. The Plan is amended to provide that the
ADP Test will be satisfied for the entire Plan Year in which the reduction or
suspension occurs using the Current Year Testing Method.
	 
	 	(5)	 	Satisfaction Through Effective Date. The Plan satisfies the
requirements of this Section (other than this paragraph) with respect to Elective
Deferrals and/or Employee Contributions through the effective date of the amendment.






	 	(f)	 	Additional Rules. The following additional rules apply to ADP Safe Harbor
Contributions:






	 	(1)	 	ADP Safe Harbor Contributions Taken into Account. An ADP Safe
Harbor Contribution is taken into account for purposes of this Section for a Plan
Year if the ADP Safe Harbor Contribution would be taken into account for such Plan
Year under the rules of Regulation §1.401(k)—2(a) or §1.401(m)—2(a). Thus, an ADP
Safe Harbor Matching Contribution must be made within 12 months after the end of the
Plan Year. Similarly, an Elective Deferral that would be taken into account for a
Plan Year under Regulation §1.401(k)—2(a)(4)(i)(B)(2) must be taken into account for
such Plan Year for purposes of this Section, even if the Compensation would have been
received after the close of the Plan Year.
	 
	 	(2)	 	Use of ADP Safe Harbor Non-Elective Contributions for Other
Non-Discrimination Tests. ADP Safe Harbor Non-Elective Contributions may also be
taken into account for purposes of determining whether the Plan satisfies Code
§401(a)(4). Thus, ADP Safe Harbor Non-Elective Contributions are not subject to the
limitations on Qualified Non-Elective Contributions under Regulation
§1.401(k)—2(a)(6)(ii), but are subject to the rules generally applicable to
Non-Elective Contributions under Code §401(a)(4) and Regulation
§1.401(a)(4)—1(b)(2)(ii). However, pursuant to Code §401(k)(12)(E)(ii), ADP Safe
Harbor Matching Contributions and ADP Safe Harbor Non-Elective Contributions may not
be taken into
account under the Plan (or any other plan) for purposes of Code §401(l) (including the
imputation of permitted disparity under Regulation §1.401(a)(4)—7).
	 
	 	(3)	 	Early Participation Rule. The Plan is permitted to apply the rules
of Code §410(b)(4)(B) to treat the Plan as two separate plans for purposes of Code
§410(b) and apply the safe harbor requirements to one plan and apply the requirements
of Regulation §1.401(k)—2 to the other plan.




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	 	(4)	 	Satisfying ADP Safe Harbor Contribution Requirements Under Another
Plan. ADP Safe Harbor Non-Elective Contributions or ADP Safe Harbor Matching
Contributions may be made to this Plan or to another defined contribution plan that
satisfies Code §401(a) or §403(a). If ADP Safe Harbor Contributions are made to
another defined contribution plan, then this Plan must specify the plan to which the
ADP Safe Harbor Contributions are being made and the ADP Safe Harbor Contribution
requirements of paragraph (a) must be satisfied in the other defined contribution
plan in the same manner as if the ADP Safe Harbor Contributions were made to this
Plan. The plan to which the ADP Safe Harbor Contributions are being made must have
the same Plan Year as this Plan, and each Safe Harbor Participant under this Plan
must be eligible under the same conditions under the other defined contribution plan.
The plan to which the ADP Safe Harbor Contributions are being made need not be a plan
that can be aggregated with this Plan.
	 
	 	(5)	 	Contributions Used Only Once. ADP Safe Harbor Non-Elective
Contributions or ADP Safe Harbor Matching Contributions cannot be used to satisfy the
ADP Safe Harbor Contribution requirements for more than one plan.






	3.17	 	ACP Safe Harbor Contributions. Matching Contributions (including, if applicable, ADP Safe Harbor Matching
Contributions) that satisfy the ACP Safe Harbor Matching Contribution requirements of Code
§401(m)(11) for a Plan Year are ACP Safe Harbor Matching Contributions in a Safe Harbor 401(m)
Plan if such contributions (including, if applicable, ADP Safe Harbor Matching Contributions)
satisfy the following requirements:






	 	(a)	 	Satisfaction of ADP Safe Harbor Contribution Requirements. The Plan must
satisfy the ADP Safe Harbor Contribution requirements of Section 3.16 with either ADP
Safe Harbor Non-Elective Contributions (including contingent ADP Safe Harbor Non-Elective
Contributions of Section 3.16(d)) or ADP Safe Harbor Matching Contributions. Pursuant to
Code §401(k)(12)(E)(ii), the ADP Safe Harbor Contribution requirements must be satisfied
without regard to Code §401(l).
	 
	 	(b)	 	Limitation on Matching Contributions. The Plan that provides for ACP Safe
Harbor Matching Contributions must satisfy the following limitations:






	 	(1)	 	Matching Contribution Rate Must Not Increase. The ratio of
Matching Contributions on behalf of a Safe Harbor Participant for a Plan Year to the
Safe Harbor Participant’s Elective Deferrals and Employee Contributions, cannot
increase as the amount of a Safe Harbor Participant’s Elective Deferrals and Employee
Contributions increases;
	 
	 	(2)	 	Matching Contribution Cannot Be Made for Deferrals in Excess of 6% of
Compensation. Matching Contributions cannot be made with respect to Elective
Deferrals or Employee Contributions that exceed six percent (6%) of the Safe Harbor
Participant’s Compensation;
	 
	 	(3)	 	Discretionary Matching Contribution Cannot Exceed 4% of
Compensation. If Matching Contributions are discretionary, then the
discretionary Matching Contributions cannot exceed 4% of the Safe Harbor
Participant’s Compensation; and
	 
	 	(4)	 	Limitation on Rate of Match. The ratio of Matching Contributions
on behalf of a Safe Harbor Participant who is a HCE to his or her Elective Deferrals
or Employee Contributions (or to the sum thereof) for that Plan Year is no greater
than the ratio of Matching Contributions to Elective Deferrals or Employee
Contributions (or the sum of Elective Deferrals and Employee Contributions) that
would apply with respect to any Safe Harbor Participant who is a NHCE for whom the
Elective Deferrals or Employee Contributions (or the sum of Elective Deferrals and
Employee Contributions) are the same percentage of Compensation. The determination of
the rate of Matching Contributions will be made pursuant to the rules of Regulation
§1.401(m)-3(d)(4) and §1.401(m)-3(d)(5).
	 
	 	(5)	 	Catch-Up Contributions. With respect to ACP Safe Harbor Matching
Contributions, Catch-Up Contributions will be treated as any other Elective Deferrals
and will be matched according to the ACP Safe Harbor Matching Contribution formula as
if the Catch-Up Contributions were Elective Deferrals.




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	 	(6)	 	Permissible Restrictions on Elective Deferrals or Employee
Contributions by NHCEs. Elective Deferrals and/or Employee Contributions by Safe
Harbor Participants who are NHCEs cannot be restricted, except pursuant to the rules
of Section 3.16(a)(2)(G) (which rules will apply to Elective Deferrals and/or
Employee Contributions) and Regulation §1.401(m)-3(d)(6).






	 	(c)	 	Safe Harbor Notice. The Sponsoring Employer must give a Safe Harbor Notice
to each Safe Harbor Participant that satisfies the content and timing requirements of
Section 3.16(b) and Reg. §1.401(k)-3(d).
	 
	 	(d)	 	Plan Year Requirement. The Sponsoring Employer must adopt ACP Safe Harbor
Matching Contributions provisions before the first day of the Plan Year and remain in
effect for an entire 12-month Plan Year, subject to the rules and exceptions of Section
3.16(c) (which will apply to ACP Safe Harbor Matching Contributions) and Regulation
§1.401(m)-3(f). For purposes of an initial Plan Year of a Plan, the amendment providing
for ACP Safe Harbor Matching Contributions must be made effective at the same time as the
adoption of a cash or deferred arrangement that satisfies the requirements of Regulation
§1.401(k)-3.
	 
	 	(e)	 	Permissible Reduction or Suspension of ACP Safe Harbor Matching
Contributions. If the Plan provides for ACP Safe Harbor Matching Contributions for a
Plan Year, then the Plan may be amended during the Plan Year to reduce or suspend ACP
Safe Harbor Matching Contributions on future Elective Deferrals (and, if applicable,
Employee Contributions), subject to the rules of Section 3.16(e) (which rules will apply
to ACP Safe Harbor Matching Contributions) and Regulation §1.401(m)-3(h).
	 
	 	(f)	 	Additional Rules. The following additional rules apply to ACP Safe Harbor
Matching Contributions:






	 	(1)	 	ACP Safe Harbor Matching Contributions Taken into Account. An ACP
Safe Harbor Matching Contribution is taken into account for purposes of this Section
for a Plan Year, pursuant to the same rules of Section 3.16(f)(1) and Regulation
§1.401(k)-3(h)(1).
	 
	 	(2)	 	Early Participation Rule. The Plan is permitted to apply the rules
of Code §410(b)(4)(B) to treat the 401(m) Plan as two separate plans for purposes of
Code §410(b) and apply the safe harbor requirements to one plan and apply the
requirements of Regulation §1.401(m)—2 to the other plan.
	 
	 	(3)	 	Satisfying ACP Safe Harbor Matching Contribution Requirements Under
Another Plan. ACP Safe Harbor Matching Contributions may be made to this Plan or
to another defined contribution plan that satisfies Code §401(a) or §403(a), pursuant
to the same rules of Section 3.16(f)(4) and Regulation §1.401(k)-3(h)(4).
Consequently, each Safe Harbor Participant who is a NHCE under the plan providing for
ACP Safe Harbor Matching Contributions must be eligible under the same conditions
under the other defined contribution plan and the plan to which the contributions are
made must have the same Plan Year as the plan providing the ACP Safe Harbor Matching
Contributions.
	 
	 	(4)	 	ACP Safe Harbor Matching Contributions Used Only Once. ACP Safe
Harbor Matching Contributions cannot be used to satisfy the ACP Safe Harbor Matching
Contribution requirements for more than one plan.
	 
	 	(5)	 	Plan Must Satisfy ACP Test With Respect to Employee Contributions.
If this Plan permits Employee Contributions, then in addition to satisfying the
requirements of this Section, the Plan must also satisfy the ACP Test. However, the
ACP Test is permitted to be performed disregarding some or all ACP Safe Harbor
Matching Contributions when this Section is satisfied with respect to the ACP Safe
Harbor Matching Contributions, pursuant to Section 3.15(j) and Regulation
§1.401(m)-2(a)(5)(iv).






	3.18	 	General Non-Discrimination Test Requirements. For Plan Years beginning on or after January 1, 2002, if the Sponsoring Employer
applies the general test for non-discrimination as set forth in Code §401(a)(4) based upon
Equivalent Accrual Rates to demonstrate that a Non-Safe Harbor Non-Elective Contribution that
is made to this Plan is non-discriminatory, or if a Non-Safe Harbor Non-Elective Contribution
that is made to this Plan is aggregated with one or more other plans of the
Sponsoring Employer so that the Sponsoring Employer can apply the general test for
non-discrimination set forth in Code §401(a)(4) based upon Equivalent Accrual Rates for the
defined contribution plan(s) (including this Plan) to demonstrate that the plans (including
this Plan) are non-discriminatory, then the following rules will apply:




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	 	(a)	 	Defined Contribution Rule. If this Plan (or any defined contribution
plan(s) which are aggregated with this Plan) is not aggregated with any defined benefit
plan of the Sponsoring Employer for purposes of applying the general test for
non-discrimination based upon Equivalent Accrual Rates for this Plan (or any defined
contribution plan(s) which are aggregated with this Plan), then any NHCE who is a
Participant in this Plan (or, if any defined contribution plan(s) are aggregated with
this Plan, any NHCE who is a Participant in this Plan or the other defined contribution
plan(s)) and who receives an allocation of Non-Elective Contributions and/or QNECs must
receive an allocation of Non-Elective Contributions and/or QNECs that is at least equal
to the Minimum Allocation Gateway for the Plan Year, subject to the following provisions:






	 	(1)	 	Circumstances When Minimum Allocation Gateway Not Required. The
Minimum Allocation Gateway requirement need not be satisfied if this Plan (or the
group of any defined contribution plan(s) which are aggregated with this Plan) has
Broadly Available Allocation Rates or a Gradually Increasing Age or Service Schedule.
	 
	 	(2)	 	Treatment of Otherwise Excludable Participants. For purposes of
this paragraph (a), Otherwise Excludable Participants will not be considered.






	 	(b)	 	Combination of Defined Benefit/Defined Contribution Rule. If this Plan (or
any defined contribution plan(s) which are aggregated with this Plan) is aggregated with
any defined benefit plan for purposes of applying the general test for non-discrimination
based upon Equivalent Accrual Rates for this Plan (or any defined contribution plan(s)
which are aggregated with this Plan), then the Aggregate Normal Allocation Rate of each
Non-Highly Compensated Employee in any plan that is part of the aggregated defined
benefit plan(s) and defined contribution plan(s) (including this Plan) must be at least
equal to the Minimum Aggregate Allocation Gateway for the Plan Year, subject to the
following provisions:






	 	(1)	 	Circumstances When Minimum Aggregate Allocation Gateway Not
Required. The Minimum Aggregate Allocation Gateway requirement need not be
satisfied if the aggregated combination of defined benefit plan(s) and defined
contribution plan(s) (including this Plan) either is Primarily Defined Benefit in
Character or consists of Broadly Available Separate Plans.
	 
	 	(2)	 	Treatment of Otherwise Excludable Participants. For purposes of
this paragraph (b), Otherwise Excludable Participants will not be considered.






	3.19	 	Annual Overall and Cumulative Permitted Disparity Limit. In any Plan Year, if an Employee benefits under more than one plan, then the
annual overall permitted disparity limit of this Section is satisfied only if an Employee’s
Total Annual Disparity Fraction does not exceed one. Furthermore, the cumulative permitted
disparity limit for a Participant is 35 Total Cumulative Permitted Disparity Years. The
following rules apply in determining compliance with the two prior sentences:






	 	(a)	 	Plans Taken into Account. All plans of the Employer are taken into
account. In addition, all plans of any other employer are taken into account for all
Service with the other employer for which the Employee receives credit for purposes of
allocations/benefit accruals under any plan of the current Employer.
	 
	 	(b)	 	Application of the Limit. The limit of this Section takes into account the
disparity provided under a section 401(l) plan as defined in Regulation §1.401(a)(4)-12
and the permitted disparity imputed under a plan that satisfies Code §401(a)(4) by
relying on Regulation §1.401(a)(4)-7.
	 
	 	(c)	 	Total Annual Disparity Fraction. The term “Total Annual Disparity
Fraction” means the sum of the Employee’s Annual Disparity Fractions for a Plan Year. An
Employee’s Total Annual Disparity Fraction is determined as of the end of each Plan Year,
based on the Employee’s Annual Disparity Fractions under all plans with plan years ending
in the current Plan Year. The following subparagraphs determine an Employee’s Annual
Disparity Fractions:






	 	(1)	 	Annual Disparity Fraction for a Defined Contribution Plan. The
Annual Disparity Fraction for an Employee benefiting under a defined contribution
plan that is a section 401(l) plan, as defined in Regulation §1.401(a)(4)-12, is a
fraction: (A) the numerator of which is the disparity provided under the plan for the
Plan Year; and (B) the denominator of which is the maximum excess allowance under
Regulation §1.401(l)-2(b)(2) for the Plan Year.




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	 	(2)	 	Annual Disparity Fraction for a Defined Benefit Excess Plan. The
Annual Disparity Fraction for an Employee benefiting under a defined benefit excess
plan that is a section 401(l) plan, as defined in Regulation §1.401(a)(4)-12, is a
fraction: (A) the numerator of which is the disparity provided under the plan for the
Plan Year; and (B) the denominator of which is the maximum excess allowance under
Regulation §1.401(l)-3(b)(2) for the Plan Year.
	 
	 	(3)	 	Annual Disparity Fraction for a Defined Benefit Offset Plan. In
general, the Annual Disparity Fraction for an Employee benefiting under a defined
benefit offset plan that is a section 401(l) plan, as defined in Regulation
§1.401(a)(4)-12, is a fraction: (A) the numerator of which is the disparity provided
under the plan for the Plan Year; and (B) the denominator of which is the maximum
offset allowance under Regulation §1.401(l)-3(b)(3) for the Plan Year. However, if a
defined benefit offset plan applies an offset of a specified percentage of the
employee’s PIA, as permitted under Regulation §1.401(l)-3(c)(2)(ix), then the
numerator of the prior sentence is the offset percentage used in the Code §401(l)
overlay under the plan.
	 
	 	(4)	 	Annual Disparity Fraction for a Plan that Imputes Disparity. The
Annual Disparity Fraction for an Employee benefiting under a plan that imputes
permitted disparity with respect to the Employee under Regulation §1.401(a)(4)-7 is
one.
	 
	 	(5)	 	Annual Disparity Fraction for a Plan That Is Neither a Section 401(l)
Plan Nor Imputes Disparity. The Annual Disparity Fraction for an Employee
benefiting under a plan that neither is a section 401(l) plan as defined in
Regulation §1.401(a)(4)-12 nor imputes permitted disparity under Regulation
§1.401(a)(4)-7 is zero.
	 
	 	(6)	 	Determination of Annual Disparity Fractions. Generally, a separate
Annual Disparity Fraction is determined for each plan under which the Employee
benefits. If two plans are aggregated and treated as a single plan for purposes of
Code §401(a)(4), a single annual disparity fraction applies to the aggregated plan.
However, if a plan provides an allocation or benefit equal to the sum of two or more
formulas, then each formula is considered a separate plan for purposes of this
Section. If a plan provides an allocation or benefit equal to the greater of two or
more formulas, then an Annual Disparity Fraction is calculated for the Employee under
each formula and the largest of the fractions is the Employee’s Annual Disparity
Fraction under the plan.






	 	(d)	 	Adjustment to Plans if the Total Annual Disparity Fraction Exceeds One. If
(1) this Plan utilizes the disparity provided under a section 401(l) plan as defined in
Regulation §1.401(a)(4)-12 and/or the permitted disparity imputed under a plan that
satisfies Code §401(a)(4) by relying on Regulation §1.401(a)(4)-7, and (2) the Total
Annual Disparity Fraction exceeds one, then the following provisions will apply in a
uniform manner for all Employees:






	 	(1)	 	Other Plan(s) Have Adjustment Method. If the other plan(s) have a
method to adjust Employer-provided contributions or benefits to assure that the Total
Annual Disparity Fraction does not exceed one, the adjustment method of the other
plan(s) will apply.
	 
	 	(2)	 	Other Plan(s) Do Not Have Adjustment Method. If the other plan(s)
do not have a method to adjust employer-provided contributions or benefits to assure
that the Total Annual Disparity Fraction does not exceed one, then the Sponsoring
Employer will establish a administrative policy that is promulgated under Section 8.6
that adjusts Employer-provided contributions or benefits so that the Total Annual
Disparity Fraction does not exceed one.






	 	(e)	 	Cumulative Permitted Disparity Limit. Effective for Plan Years beginning
on or after January 1, 1995, the cumulative permitted disparity limit for a Participant
is 35 Total Cumulative Permitted Disparity Years. The term “Total Cumulative Permitted
Disparity Years” means the number of Plan Years credited to the Participant for
allocation or accrual purposes under this Plan, and under any other qualified plan or
simplified employee pension plan (whether or not terminated) ever maintained by the
Employer. For purposes of determining the Participant’s cumulative permitted disparity
limit, all Plan Years ending in the same calendar year are treated as the same Plan Year.
If the Participant has not benefited under a defined benefit or target benefit plan for
any year beginning on or after January 1, 1994, then the Participant has no cumulative
disparity limit. For purposes of the prior sentence, a Participant is not treated as
benefiting under a defined benefit plan for a Plan Year if the defined benefit plan was
not a section 401(l) plan within the




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	 	 	 	meaning of Regulation §1.401(a)(4)-12 for that Plan
Year and did not impute permitted disparity under Regulation §1.401(a)(4)-7 for that Plan
Year.






	3.20	 	Deemed IRA Contributions. Deemed IRA Contributions are not permitted.




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Article 4

Plan Benefits





	4.1	 	Benefit Upon Normal Retirement. Every Participant who has reached Normal Retirement Age will be entitled upon
subsequent Termination of Employment with the Employer to receive his or her Vested Aggregate
Account balance determined as of the most recent Valuation Date coinciding with or immediately
preceding the date of distribution. Distribution will be made under Section 5.1.
	 
	4.2	 	Benefit Upon Late Retirement. A Participant who has reached Normal Retirement Age may elect to remain employed by the
Employer and retire at a later date. Such Participant will continue to participate in the Plan
and his or her Participant’s Account will continue to receive allocations under Article 3.
Upon actual retirement, the Participant will be entitled to his or her Vested Aggregate
Account balance determined as of the most recent Valuation Date coinciding with or immediately
preceding the date of distribution. A Participant who elects late retirement may at any time
(1) choose to have distributed prior to actual retirement all or part of his or her Vested
Aggregate Account determined as of the most recent Valuation Date coinciding with or
immediately preceding the date of distribution; or (2) choose to have such Vested Aggregate
Account transferred to another qualified retirement plan maintained by the Employer. Upon
actual retirement, the Participant will be entitled to his or her undistributed Vested
Aggregate Account balance determined as of the most recent Valuation Date coinciding with or
immediately preceding the date of distribution. Distribution will be made in accordance with
Section 5.1.
	 
	4.3	 	Benefit Upon Death. Upon the death of a Participant prior to Termination of Employment with the Employer,
or upon the death of a Terminated Participant prior to distribution of his or her Vested
Aggregate Account, his or her Beneficiary will be entitled to the Participant’s Vested
Aggregate Account balance determined as of the most recent Valuation Date coinciding with or
immediately preceding the date of distribution. If any Beneficiary who is living on the date
of the Participant’s death dies prior to receiving his or her entire death benefit, the
portion of such death benefit will be paid in a lump sum to the estate of such deceased
Beneficiary. The Administrator’s determination that a Participant has died and that a
particular person has a right to receive a death benefit will be final. Distribution will be
made under Section 5.2.
	 
	4.4	 	Benefit Upon Disability. If a Participant suffers a Disability prior to Termination of Employment with the
Employer, or if a Terminated Participant suffers a Disability prior to distribution of his or
her Vested Aggregate Account, he or she will be entitled to his or her Vested Aggregate
Account balance determined as of the most recent Valuation Date coinciding with or immediately
preceding the date of distribution. Distribution will be made under Section 5.3.
	 
	4.5	 	Benefit Upon Termination of Employment. A Terminated Participant will be entitled to his or her Vested Aggregate Account
balance as of the most recent Valuation Date coinciding with or immediately preceding the date
of distribution. Distribution to a Terminated Participant who does not die prior to
distribution or who does not suffer a Disability prior to distribution will be made under
Section 5.4.
	 
	4.6	 	Determination of Vested Interest. A Participant’s Vested Interest in his or her Participant’s Account will be determined
in accordance with the following provisions:






	 	(a)	 	Vesting Upon Retirement, Death or Disability. A Participant will have a
100% Vested Interest in his or her Participant’s Account upon reaching Normal Retirement
Age prior to Termination of Employment. A Participant will also have a 100% Vested
Interest therein (1) upon his or her Disability prior to Termination of Employment; and
(2) upon his or her death prior to Termination of Employment.
	 
	 	(b)	 	Vesting of Elective Deferrals, QMACs and QNECs and Certain Other Accounts.
A Participant will at all times have a 100% Vested Interest in his or her Elective
Deferral Account, ADP Safe Harbor Non-Elective Contribution Account, ADP Safe Harbor
Matching Contribution Account, Qualified Matching Contribution Account, Qualified
Non-Elective Contribution Account, Voluntary Employee Contribution Account, Rollover
Contribution Account, and Deemed IRA Contribution Account.
	 
	 	(c)	 	Vesting of ACP Safe Harbor Matching Contribution Account. A Participant’s
Vested Interest in his or her ACP Safe Harbor Matching Contribution Account is described
in the Safe Harbor 401(k) Contribution Addendum executed by the Sponsoring Employer from
time to time.




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	 	(d)	 	Vesting of Non-Safe Harbor Matching Contributions. A Participant’s Vested
Interest in his or her Non-Safe Harbor Matching Contribution Account will be determined
by the vesting schedule immediately following this paragraph. A Participant’s Vested
Interest under this paragraph will be based on the Participant’s credited Years of
Service with the Employer, and all such Years of Service will be counted in determining a
Participant’s Vested Interest under this paragraph.





			
	 	 	 
	1 Year of Service 

2 Years of Service
	 	0% Vested

100% Vested







	 	 	 	Notwithstanding the above, Employer Matching Contributions made to the Plan prior to April
1, 2007 are 100% vested.
	 
	 	 	 	Notwithstanding the above, employer matching contributions attributable to salary deferral
contributions made under the After Hours FormalWear Profit Sharing Plan (which was merged
into the MW 401(k) Plan effective at the close of business December 31, 2007) are subject
to the following vesting schedule:





	 	 	 	 	 
	Years of Vesting Service	 	Vested Percentage
	Less than two years
	 	 	0	%
	Two years, but less than three years
	 	 	50	%
	Three years, but less than four years
	 	 	75	%
	Four years or more
	 	 	100	%







	 	(e)	 	Vesting of Non-Safe Harbor Non-Elective Contributions. A Participant’s Vested
Interest in his or her Employer Non-Safe Harbor Non-Elective Contributions made under the
After Hours FormalWear Profit Sharing Plan (which was merged into the MW 401(k) Plan
effective at the close of business December 31, 2007) are subject to the following
vesting schedule:





	 	 	 	 	 
	Years of Vesting Service	 	Vested Percentage
	Less than two years
	 	 	0	%
	Two years, but less than three years
	 	 	50	%
	Three years, but less than four years
	 	 	75	%
	Four years or more
	 	 	100	%







	 	(f)	 	Vesting Requirement Upon Complete Termination or Upon Discontinuance of
Contributions. Upon a complete termination of the Plan or upon a complete
discontinuance of contributions under the Plan, the following Participants will have a
100% Vested Interest in their Participants’ Accounts: (1) Participants who are affected
by such complete termination or, if applicable, such complete discontinuance of
contributions; (2) Participants who have not Terminated Employment with the Employer; and
(3) Participants who have Terminated Employment with the Employer and who (A) have not
incurred five consecutive Breaks in Service and (B) have not received a complete
distribution of their Vested Aggregate Account balance.
	 
	 	(g)	 	Vesting Requirement Upon Partial Termination. Upon partial termination of
the Plan, only a Participant who has Terminated Employment because of the event which
causes the partial termination but who has not incurred five consecutive Breaks in
Service will have a 100% Vested Interest in his or her unpaid Participant’s Account as of
the date of partial termination.
	 
	 	(h)	 	Amendments to the Vesting Schedule. No amendment to the Plan may directly
or indirectly reduce a Participant’s Vested Interest in his or her Participant’s Account.
If the Plan is amended in any way that directly or indirectly affects the computation of
a Participant’s Vested Interest in his or her Participant’s Account, or the Plan is
deemed amended by an automatic change to or from a Top Heavy Vesting schedule, then the
following provisions will apply:






	 	(1)	 	Participant Election. Any Participant with at least three Years of
Service may, by filing a written request with the Administrator, elect to have the
Vested Interest in his or her Participant’s Account
computed by the Vesting schedule in effect prior to the amendment. A Participant who
fails to make an election will have the Vested Interest in his or her Participant’s
Account computed under the new schedule. The period in which the election may be made
will begin on the date the amendment is adopted or is deemed to be made and will end
on the latest of (A) 60 days after the amendment is




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	 	 	 	adopted; (B) 60 days after the
amendment becomes effective; or (C) 60 days after the Participant is issued written
notice of the amendment by the Employer or Administrator.






	 	(2)	 	Preservation of Vested Interest. Notwithstanding the foregoing to
the contrary, if the vesting schedule is amended, then in the case of an Employee who
is a Participant as of the later of the date such amendment is adopted or the date it
becomes effective, the Vested Interest in his or her Participant’s Account determined
as of such date will not be less than his or her Vested Interest computed under the
Plan without regard to such amendment.




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Article 5

Distribution of Benefits





	5.1	 	Distribution of Benefit Upon Retirement. Unless a cash-out occurs under Section 5.5, the retirement benefit a Participant is
entitled to receive under Section 4.1 or 4.2 will be distributed in the following manner:






	 	(a)	 	Normal Form of Distribution. The Normal Form of Distribution is a lump sum
payment.
	 
	 	(b)	 	Optional Forms of Distribution. A Participant may waive the Normal Form
of Distribution and elect to have his or her benefit distributed in an Optional Form of
Distribution. The Optional Forms of Distribution are (1) Substantially Equal monthly,
quarterly, semi-annual or annual cash installment payments over a period certain which
does not extend beyond the life of the Participant; the joint lives of the Participant
and a designated Beneficiary; or a period certain not extending beyond the life
expectancy of the Participant and a designated Beneficiary. The lump sum value of the
Participant’s benefit either may be segregated and separately invested and the
Substantially Equal installments will be paid from the Plan; may remain invested in the
Trust’s assets and the Substantially Equal installments will be paid from the Plan; or
may be used to purchase a nontransferable immediate or deferred annuity that is selected
by the Employer and that complies with the terms of the Plan from an insurance company to
provide for such Substantially Equal installments; and (2) designated sums from time to
time as elected by the Participant. Optional Forms of Distribution are available on a
non-discriminatory basis and are not subject to the Administrator’s discretion.
	 
	 	(c)	 	Partial Distributions. If a Participant receives a distribution of less
than 100% of his or her Vested Aggregate Account balance, the Administrator will
determine the portion (including zero) of the distribution that will be made from each of
the Participant’s sub-accounts, provided that any such determination is made in a uniform
nondiscriminatory manner.
	 
	 	(d)	 	Time of Distribution. Distribution will be made under this Section within
a reasonable time after the Participant’s actual retirement on or after the Normal
Retirement Date; or within a reasonable time after the date a Participant who elects late
retirement under Section 4.2 requests payment as permitted thereunder.






	5.2	 	Distribution of Benefit Upon Death. Unless a mandatory cash-out occurs under Section 5.5, the death benefit a deceased
Participant’s Beneficiary is entitled to receive under Section 4.3 will be distributed as
follows:






	 	(a)	 	Surviving Spouse. If a Participant has a surviving Spouse on the date of
the Participant’s death, then the deceased Participant’s surviving Spouse will be
entitled to receive a death benefit determined in accordance with the following
provisions:






	 	(1)	 	Form of Distribution. If a Participant dies before the Annuity
Starting Date, and the Participant has a surviving Spouse on the date of the
Participant’s death, then notwithstanding any other Beneficiary designation made by
the Participant, the deceased Participant’s surviving Spouse will be entitled to
receive 100% of the deceased Participant’s death benefit unless the surviving Spouse
has waived that right in accordance with Section 5.8. The benefit will be distributed
in a lump sum payment.
	 
	 	(2)	 	Time of Distribution. Any death benefit payable to a surviving
Spouse will be distributed within a reasonable time after the death of the
Participant, but not later than December 31st of the calendar year which contains the
fifth anniversary of the date of the Participant’s death pursuant to Section
5.9(b)(2)(A), if required minimum distributions to the Participant have not begun.
	 
	 	(3)	 	Death of Surviving Spouse Before Distribution Begins. If the
surviving Spouse dies before distribution begins, then distribution will be made as
if the surviving Spouse were the Participant.






	 	(b)	 	Non-Spouse Beneficiary. Any death benefit payable to a non-Spouse
Beneficiary will be distributed to the Beneficiary in accordance with the following
provisions:






	 	(1)	 	Form of Distribution. Any such death benefit will be distributed
in a lump sum payment.




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	 	(2)	 	Time of Distribution. Any death benefit payable to a non-Spouse
Beneficiary will be distributed within a reasonable time after the death of the
Participant, but not later than December 31st of the calendar year which contains the
fifth anniversary of the date of the Participant’s death pursuant to Section
5.9(b)(2)(A), if required minimum distributions to the Participant have not begun.






	 	(c)	 	Distribution If the Participant or Other Payee Is In Pay Status. If a
Participant or Beneficiary who has begun receiving distribution of his or her benefit
dies before the entire benefit is distributed, then the balance thereof will be
distributed to the Participant’s Beneficiary (or Beneficiary’s Beneficiary) at least as
rapidly as under the method of distribution being used on the date of the Participant’s
or Beneficiary’s death.
	 
	 	(d)	 	Payments to a Beneficiary of a Beneficiary. In the absence of a
Beneficiary designation or other directive from the deceased Participant to the contrary,
any Beneficiary may name his or her own Beneficiary to receive any benefits payable in
the event of the Beneficiary’s death prior to receiving the entire death benefit to which
the Beneficiary is entitled; if a Beneficiary has not named his or her own Beneficiary,
then the Beneficiary’s estate will be the Beneficiary. If any benefit is payable under
this paragraph to a Beneficiary of the deceased Participant’s Beneficiary, to the estate
of the deceased Participant’s Beneficiary, or to any other Beneficiary or the estate
thereof, then subject to the limitations regarding the latest dates for benefit payment
of this Section and Section 5.9, the Administrator may (1) continue to pay the remaining
value of such benefits in the amount and form that has already commenced, (2) pay such
benefits in any other manner permitted under the Plan for distribution of benefits upon
death, and/or (3) if payments have not already commenced, pay such benefits in any other
manner permitted under the Plan for distribution of benefits upon death. Distribution to
the Beneficiary of a Beneficiary must begin no later than the date that a distribution
would have been made to the Participant’s Beneficiary. The Administrator’s determination
under this paragraph will be final and will be applied in a uniform manner that does not
discriminate in favor of Participants who are Highly Compensated Employees.






	5.3	 	Distribution of Benefit Upon Disability. Unless a mandatory cash-out occurs under Section 5.5, the Disability benefit a
Participant is entitled to receive under Section 4.4 will be distributed in the following
manner:






	 	(a)	 	Normal Form of Distribution. The Normal Form of Distribution is a lump sum
payment.
	 
	 	(b)	 	Optional Forms of Distribution. A Participant may waive the Normal Form
of Distribution and elect to have his or her benefit distributed in an Optional Form of
Distribution. The Optional Forms of Distribution are (1) Substantially Equal monthly,
quarterly, semi-annual or annual cash installment payments over a period certain which
does not extend beyond the life of the Participant; the joint lives of the Participant
and a designated Beneficiary; or a period certain not extending beyond the life
expectancy of the Participant and a designated Beneficiary. The lump sum value of the
Participant’s benefit either may be segregated and separately invested and the
Substantially Equal installments will be paid from the Plan; may remain invested in the
Trust’s assets and the Substantially Equal installments will be paid from the Plan; or
may be used to purchase a nontransferable immediate or deferred annuity that is selected
by the Employer and that complies with the terms of the Plan from an insurance company to
provide for such Substantially Equal installments; and (2) designated sums from time to
time as elected by the Participant. Optional Forms of Distribution are available on a
non-discriminatory basis and are not subject to the Administrator’s discretion.
	 
	 	(c)	 	Partial Distributions. If a Participant receives a distribution of less
than 100% of his or her Vested Aggregate Account balance, then the Administrator will
determine the portion (including zero) of the distribution that will be made from each of
the Participant’s sub-accounts, provided that any such determination is made in a uniform
nondiscriminatory manner.
	 
	 	(d)	 	Time of Distribution. Distribution will be made under this Section on the
date that a distribution is to be made to a Terminated Participant under Section 5.4.






	5.4	 	Distribution of Benefit Upon Termination of Employment. Unless a mandatory cash-out occurs under Section 5.5 or a distribution occurs under
Sections 5.1, 5.2, or 5.3, the benefit that a Terminated Participant is entitled to receive
under Section 4.5 will be distributed in the following manner:






	 	(a)	 	Normal Form of Distribution. The Normal Form of Distribution is a lump sum
payment.




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	 	(b)	 	Optional Forms of Distribution. A Participant may waive the Normal Form
of Distribution and elect to have his or her benefit distributed in an Optional Form of
Distribution. The Optional Forms of Distribution are (1) Substantially Equal monthly,
quarterly, semi-annual or annual cash installment payments over a period certain which
does not extend beyond the life of the Participant; the joint lives of the Participant
and a designated Beneficiary; or a period certain not extending beyond the life
expectancy of the Participant and a designated Beneficiary. The lump sum value of the
Participant’s benefit either may be segregated and separately invested and the
Substantially Equal installments will be paid from the Plan; may remain invested in the
Trust’s assets and the Substantially Equal installments will be paid from the Plan; or
may be used to purchase a nontransferable immediate or deferred annuity that is selected
by the Employer and that complies with the terms of the Plan from an insurance company to
provide for such Substantially Equal installments; and (2) designated sums from time to
time as elected by the Participant. Optional Forms of Distribution are available on a
non-discriminatory basis and are not subject to the Administrator’s discretion.
	 
	 	(c)	 	Partial Distributions. If a Participant receives a distribution of less
than 100% of his or her Vested Aggregate Account balance, then the Administrator will
determine the portion (including zero) of the distribution that will be made from each of
the Participant’s sub-accounts, provided that any such determination is made in a uniform
nondiscriminatory manner.
	 
	 	(d)	 	Time of Distribution. Distribution will be made under this Section within
an administratively reasonable time after the Participant requests payment.






	5.5	 	Mandatory Cash-Out of Benefits. Mandatory cash-outs prior to March 28, 2005 will be governed by the terms of the Plan
(including amendments) as in effect prior to such date. Effective on or after such date, the
Vested Aggregate Account of a Participant who has Terminated Employment, who is entitled to a
distribution and who satisfies the requirements of this Section will be distributed without
the Participant’s consent in accordance with the following provisions:






	 	(a)	 	Cashout Threshold. Distribution can only be made under this Section if a
Participant’s Vested Aggregate Account on or after the date of Termination of Employment
does not exceed $5,000 (the “cash-out threshold”), which will be determined by including
the Participant’s Rollover Contribution Account (if any).
	 
	 	(b)	 	Time of Distribution. Distribution will be made under this Section as soon
as administratively feasible after the Participant Terminates Employment. Notwithstanding
the foregoing, if a Participant would have received a distribution under the preceding
sentence but for the fact that his or her Vested Aggregate Account exceeded the cash-out
threshold, and if at a later time the Participant’s Vested Aggregate Account is reduced
to an amount not greater than the cash-out threshold, the Administrator will distribute
such Vested Aggregate Account in a lump sum without the Participant’s consent as soon as
administratively feasible after the date the Participant’s Vested Aggregate Account no
longer exceeds the cash-out threshold.
	 
	 	(c)	 	Form of Distribution. Distribution under this Section will, at the
election of the Participant, be made as a lump sum cash payment or as a direct rollover
under Section 5.14. However, if the Participant does not elect to have the distribution
made as a lump sum cash payment or as a direct rollover under Section 5.14, then the
following provisions will apply: (1) if the amount of the distribution is $1,000 or less
(including the Participant’s Rollover Contribution Account), distribution will be made in
the form of a lump sum cash payment not less than 30 days and not more than 90 days (or
such other time as permitted by law) after the Code §402(f) notice is provided to the
Participant; and (2) if the amount of the distribution exceeds $1,000 (including the
Participant’s Rollover Contribution Account), then the Administrator will pay the
distribution in an automatic direct rollover to an individual retirement plan designated
by the Administrator. Such individual retirement plan, as defined in Code §7701(a)(37),
may be either an individual retirement account within the meaning of Code §408(a) or an
individual retirement annuity within the meaning of Code §408(b) (either of which will
subsequently be referred to in this paragraph as an IRA). The Administrator will
establish the IRA at a qualified financial institution by selecting an IRA trustee,
custodian or issuer that is unrelated to the Employer or the Administrator (unless
subsequent rules or Regulations permit otherwise), and will make the initial investment
choices for the IRA. An automatic direct rollover will occur not less than 30 days and
not more than 90 days (or such other time as permitted by law) after the Code §402(f)
notice with the explanation of the automatic direct rollover is provided to the
Participant.






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	5.6	 	Restrictions on Immediate Distributions. If a Participant’s Vested Aggregate Account balance exceeds the amount set forth in
paragraph (a) of this Section and is Immediately Distributable, then such account can only be
distributed in accordance with the following provisions:






	 	(a)	 	General Rule. If (1) the Vested Aggregate Account balance (effective
January 1, 2002, determined before taking into account the Participant’s Rollover
Contribution Account) of a Participant who has Terminated Employment exceeds $5,000, or
if there are remaining payments to be made with respect to a particular distribution
option that previously commenced, and (2) such amount is Immediately Distributable, then
the Participant (and, with respect to any portion of the Participant’s Account which is
subject to the Qualified Joint and Survivor Annuity requirements of Code §401(a)(11) and
Code §417, the Participant’s Spouse, if any [or where either the Participant or Spouse
has died, the survivor]), must consent to any distribution of such amount. If (1) the
Vested Aggregate Account balance (effective January 1, 2002, determined before taking
into account the Participant’s Rollover Contribution Account) of a Participant who has
Terminated Employment does not exceed $5,000, but (if applicable) exceeds the cash-out
threshold set forth in Section 5.5(a), and (2) such amount is Immediately Distributable,
then only the Participant (or where the Participant has died, the Participant’s Spouse or
Beneficiary) must consent to any distribution of such amount.
	 
	 	(b)	 	General Consent Requirement. The consent of the Participant (and, with
respect to any portion of the Participant’s Account which is subject to the Qualified
Joint and Survivor Annuity requirements of Code §401(a)(11) and Code §417, the
Participant’s Spouse, if any [or where either the Participant or Spouse has died, the
survivor]) to any benefit that is Immediately Distributable must be obtained in writing
within the 90-day period (or such other period as may be required by law) ending on the
Annuity Starting Date. However, (1) with respect to any portion of the Participant’s
Account which is not subject to the Qualified Joint and Survivor Annuity requirements of
Code §401(a)(11) and Code §417, the Participant will not be required to consent to a
distribution that is required by Code §401(a)(9) or §415; and (2) with respect to any
portion of the Participant’s Account subject to the Qualified Joint and Survivor Annuity
requirements of Code §401(a)(11) and Code §417, (A) only the Participant must consent to
the distribution of a Qualified Joint and Survivor Annuity while the benefit is
Immediately Distributable, and (B) neither the Participant (nor the Participant’s Spouse)
is required to consent to a distribution required by Code §401(a)(9) or §415.
	 
	 	(c)	 	Notification Requirement. The Administrator must notify the Participant
(and, with respect to any portion of the Participant’s Account which is subject to the
Qualified Joint and Survivor Annuity requirements of Code §401(a)(11) and Code §417, the
Participant’s Spouse) of the right to defer any distribution until it is no longer
Immediately Distributable. Notification will include a general explanation of the
material features and relative values of the optional forms of benefit that are available
under the Plan in a manner that would satisfy the notice requirements of Code §417(a)(3),
and any such notification will be provided no less than 30 days or more than 90 days (or
such other period as may be required by law) prior to the Annuity Starting Date.
Notwithstanding the other requirements of this Section, the notices prescribed by this
Section need not be given to a Participant if (1) the Plan “fully subsidizes” the costs
of a Qualified Joint and Survivor Annuity or Qualified Pre-Retirement Survivor Annuity;
(2) the Plan does not allow the Participant to waive the Qualified Joint and Survivor
Annuity or Qualified Pre-Retirement Survivor Annuity; and (3) the Plan does not allow a
Participant who has a Spouse to designate a non-Spouse Beneficiary. For purposes of this
Section, a plan fully subsidizes the costs of a benefit if no increases in cost, or
decreases in benefits to the Participant may result from the Participant’s failure to
elect another benefit.
	 
	 	(d)	 	Waiver of 30-Day Requirement. Distribution of a Participant’s benefit may
begin less than 30 days after the notice described in paragraph (c) is given the
Participant if (1) the Administrator clearly informs the Participant that the Participant
has a right to a period of at least 30 days after receiving notice to consider the
decision of whether or not to elect a distribution; (2) the Participant, after receiving
the notice, affirmatively elects a distribution (or a particular distribution option);
and (3) with respect to any portion of the Participant’s Account which is subject to the
Qualified Joint and Survivor Annuity requirements of Code §401(a)(11) and Code §417, the
Participant does not revoke the election at any time prior to the expiration of the 7-day
period that begins on the date the notice is given.
	 
	 	(e)	 	Consent Not Needed on Plan Termination. If upon Plan termination neither
the Employer nor an Affiliated Employer maintains another defined contribution plan
(other than an employee stock ownership plan (ESOP) as defined in Code §4975(e)(7)), then
the Participant’s benefit will, without the Participant’s consent (and,
with respect to any portion of the Participant’s Account which is subject to the Qualified
Joint and Survivor Annuity requirements of Code §401(a)(11) and Code §417, without consent
of the Participant’s Spouse), be 




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	 	 	 	distributed to the Participant. If the Employer or an
Affiliated Employer maintains another defined contribution plan (other than an ESOP), then
the Participant’s benefit will, without the Participant’s consent (and, with respect to
any portion of the Participant’s Account which is subject to the Qualified Joint and
Survivor Annuity requirements of Code §401(a)(11) and Code §417, without consent of the
Participant’s Spouse), be transferred to the other plan if the Participant does not
consent to an immediate distribution under this Section. Notwithstanding the foregoing,
this paragraph will not apply to any portion of the Participant’s Account which is subject
to the Qualified Joint and Survivor Annuity requirements of Code §401(a)(11) and Code §417
if the Plan, upon termination, offers an annuity option purchased from a commercial
provider with respect to such portion of the Participant’s Account.






	5.7	 	Accounts of Rehired Participants. If a Participant who is not 100% Vested in his or her Participant’s Account Terminates
Employment, a Forfeiture of all or a portion of the Participant’s Account of the Participant
who has Terminated Employment may have occurred, and the Participant is subsequently
reemployed by the Employer, then his or her Participant’s Account will be administered in
accordance with the following provisions:






	 	(a)	 	Reemployment of a Participant After 5 Consecutive Breaks in Service. If
the Participant is reemployed by the Employer after incurring five consecutive Breaks in
Service, then any previous Forfeiture of the Participant’s Account will not be restored
under the terms of this Plan.
	 
	 	(b)	 	Reemployment of a Non-Vested Participant Before 5 Consecutive Breaks in
Service. If a Participant’s Vested Interest in the entire Participant’s Account
attributable to Employer contributions is 0% on the date that the Participant Terminates
Employment, the Participant is deemed to have received a distribution of such Vested
Interest on the date of such Termination of Employment pursuant to the Section 3.11(a), a
Forfeiture of the Participant’s Account attributable to Employer contributions occurs on
the date of such Termination of Employment pursuant to Section 3.11(a), and the
Participant is subsequently reemployed by the Employer before incurring five consecutive
Breaks in Service, then the previous Forfeiture of such Participant’s Account
attributable to Employer contributions will be restored, calculated as of the date that
the Forfeiture occurred (unadjusted by subsequent gains and losses). Such restoration of
the previous Forfeiture of such Participant’s Account attributable to Employer
contributions will occur in the Plan Year that such Participant is reemployed by the
Employer.
	 
	 	(c)	 	Reemployment of a Vested Participant Before 5 Consecutive Breaks in
Service. If a Participant’s Vested Interest in the Participant’s Account balance
attributable to Employer contributions is less than 100% (but greater than 0%) on the
date that the Participant Terminates Employment, a Forfeiture of the non-Vested portion
of the Participant’s Account balance attributable to Employer contributions of the
Participant who has Terminated Employment may have occurred, and the Participant is
subsequently reemployed by the Employer before incurring five consecutive Breaks in
Service, then the following provisions will apply:






	 	(1)	 	Distribution Has Occurred But No Forfeiture Has Occurred. If a
Forfeiture of the non-Vested portion of the Participant’s Account attributable to
Employer contributions has not occurred but a distribution of all or a portion of the
Participant’s Account of the Participant who has Terminated Employment has occurred,
then a separate bookkeeping account will be established for the Participant’s Account
at the time of distribution; the Participant’s Vested Interest in the separate
bookkeeping account at any relevant time will be an amount (“X”) determined according
to the following formula: X = P(AB + (R x D)) — (R x D)). In applying the formula,
“P” is the Vested Interest at the relevant time, “AB” is the respective account
balance at the relevant time, “D” is the amount of the distribution, and “R” is the
ratio of the respective account balance at the relevant time to the respective
account balance after the distribution.
	 
	 	(2)	 	Both Distribution and Forfeiture Have Occurred. If a distribution
of all or a portion of the Vested Interest in the Participant’s Account of a
Participant who has Terminated Employment has occurred and Forfeiture of the
non-Vested portion of the Participant’s Account attributable to Employer
contributions has occurred (which may not necessarily occur at the same time that the
distribution occurs), then the previous Forfeiture of such Participant’s Account
balance attributable to Employer contributions will be restored, calculated as of the
date the Forfeiture occurred (unadjusted by subsequent gains and losses) and based
upon the Sponsoring Employer’s decision whether the Participant is required to repay
to the Plan the full amount of all distribution(s) which were attributable to
Employer contributions (and
effective as of the first day of Plan Year beginning in 2006 [or such earlier
effective date as may be provided in a separate amendment for implementing the final
Code §401(k) Regulations and as permitted by such Regulations], including Elective
Deferrals). With respect to such decision of the




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	 	 	 	Sponsoring Employer whether the
Participant is required to repay to the Plan the full amount of all distribution(s)
which were attributable to Employer contributions (and effective as of the first day
of Plan Year beginning in 2006 [or such earlier effective date as may be provided in a
separate amendment for implementing the final Code §401(k) Regulations and as
permitted by such Regulations], including Elective Deferrals) in order to have the
previous Forfeiture of such Participant’s Account balance attributable to Employer
contributions be restored, the following provisions will apply:






	 	(A)	 	Precedent Established. Once such decision by the
Sponsoring Employer has been made, such decision will establish precedence for
the Plan and cannot be changed, altered or modified.
	 
	 	(B)	 	Time of Restoration If Repayment Is Not Required. If,
based upon the Sponsoring Employer’s decision, the Participant is not required to
repay to the Plan the full amount of all distribution(s) which were attributable
to Employer contributions (and effective as of the first day of Plan Year
beginning in 2006 [or such earlier effective date as may be provided in a
separate amendment for implementing the final Code §401(k) Regulations and as
permitted by such Regulations], including Elective Deferrals) in order to have
the previous Forfeiture of such Participant’s Account balance attributable to
Employer contributions be restored, then such restoration will occur in the Plan
Year in which the Participant is reemployed by the Employer.
	 
	 	(C)	 	Time of Restoration If Repayment Is Required. The
Participant is required to repay to the Plan the full amount of all
distribution(s) which were attributable to Employer contributions (and effective
as of the first day of Plan Year beginning in 2006 [or such earlier effective
date as may be provided in a separate amendment for implementing the final Code
§401(k) Regulations and as permitted by such Regulations], including Elective
Deferrals) in order to have the previous Forfeiture of such Participant’s Account
balance attributable to Employer contributions be restored, then, such repayment
by the Participant must be made before the earlier of (i) five years after the
Participant’s Reemployment Commencement Date, or (ii) the date on which the
Participant incurs five consecutive Breaks in Service following the date of
distribution of either the entire or the remaining Vested Interest in the
Participant’s Account. Such restoration of the previous Forfeiture of such
Participant’s Account balance attributable to Employer contributions will occur
in the Plan Year that the Participant repays to the Plan the full (or any
remaining) amount of the distribution which was attributable to Employer
contributions (and effective as of the first day of Plan Year beginning in 2006
[or such earlier effective date as may be provided in a separate amendment for
implementing the final Code §401(k) Regulations and as permitted by such
Regulations], including Elective Deferrals).






	 	(d)	 	Sources of Restoration of Previously Forfeited Amounts. The sources to
restore a previous Forfeiture of the non-Vested portion of the Participant’s Account
balance attributable to Employer contributions pursuant to this Section will be made
first by using available Forfeitures to restore the previous Forfeiture and, if such
available Forfeitures are insufficient to restore the previous Forfeiture, by the
Employer making a special Employer contribution to the Plan to the extent necessary to
restore the previous Forfeiture.






	5.8	 	Spousal Consent Requirements. The following provisions apply to a Participant’s (or, where applicable, a
Participant’s Spouse’s) waiver of benefits under the Plan:






	 	(a)	 	Normal Form of Distribution Is Not a Qualified Joint and Survivor Annuity.
If the Normal Form of Distribution under the Plan is not a Qualified Joint and Survivor
Annuity, all distributions can be made from the Plan to a Participant without the consent
of the Participant’s Spouse, except for any portion of the Participant’s Account which is
subject to the Qualified Joint and Survivor Annuity requirements of Code §401(a)(11) and
Code §417. Subject to the provisions of the next sentence, with regard to a death benefit
payable to a Spouse, a Spouse can elect to waive such death benefit under Section 5.2 of
the Plan, but the election will not be effective unless (1) the election is in writing;
(2) the election designates a specific Beneficiary or form of benefit which may not be
changed without Spousal consent (or the Spouse’s consent expressly permits designations
by the Participant without any requirement of further Spousal consent); and (3) the
Spouse’s consent acknowledges the effect of the election and is witnessed by the
Administrator or a
notary public. With regard to a distribution of any portion of a Participant’s Account
which is subject to the Qualified Joint and Survivor Annuity and/or the Qualified
Pre-Retirement Survivor Annuity requirements of Code §401(a)(11) and Code §417, the
provisions set forth in paragraph (b) below apply.




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	 	(b)	 	Normal Form of Distribution Is a Qualified Joint and Survivor Annuity. If
the Normal Form of Distribution under the Plan is a Qualified Joint and Survivor Annuity,
or with respect to any portion of the Participant’s Account which is subject to the
Qualified Joint and Survivor Annuity requirements of Code §401(a)(11) and Code §417, then
the following provisions will apply:






	 	(1)	 	Election to Waive a QJSA. A married Participant’s election to
waive a Qualified Joint and Survivor Annuity, or an unmarried Participant’s election
to waive a life annuity, must be in writing and must be made during the 90-day period
(or such other period as may be required by law) ending on the Annuity Starting Date.
The election may be revoked in writing and a new election may be made at any time and
any number of times during the election period.
	 
	 	(2)	 	Election to Waive a QPSA. A married Participant’s election to
waive a Qualified Pre-Retirement Survivor Annuity must be in writing and must be made
during an election period beginning on the first day of the Plan Year in which the
Participant reaches Age 35 and ending on the date of his or her death. The election
may be revoked in writing and a new election made at any time and any number of times
during the election period. A Terminated Participant’s election period concerning the
Vested Aggregate Account before Termination of Employment will not begin later than
such date. If the Participant has not completed a designation form specifying the
time and/or form of payment of the Qualified Pre-Retirement Survivor Annuity prior to
the Participant’s death, the surviving Spouse may elect to receive the Qualified
Pre-Retirement Survivor Annuity in any optional form permitted in Section 5.2. A
Participant who has not yet reached Age 35 as of the end of any current Plan Year may
make a special election to waive a Qualified Pre-Retirement Survivor Annuity for the
period beginning on the date of such election and ending on the first day of the Plan
Year in which such Participant reaches Age 35. This election will not be valid unless
the Participant receives the same written explanation of the Qualified Pre-Retirement
Survivor Annuity as described in subparagraph (3). Qualified Pre-Retirement Survivor
Annuity coverage will be automatically reinstated as of the first day of the Plan
Year in which the Participant reaches Age 35. A new election to waive a Qualified
Pre-Retirement Survivor Annuity on or after such date is subject to the full
requirements of this Section.
	 
	 	(3)	 	Required Written Explanation. In the case of a Qualified Joint and
Survivor Annuity, the Administrator will no less than 30 days and no more than 90
days (or such other period as may be required by law) prior to the Annuity Starting
Date provide to each Participant a written explanation of: (A) the terms and
conditions of a Qualified Joint and Survivor Annuity; (B) the Participant’s right to
make and the effect of an election to waive the Qualified Joint and Survivor Annuity
form of benefit; (C) the rights of a Participant’s Spouse; and (D) the right to make,
and the effect of, a revocation of a previous election to waive the Qualified Joint
and Survivor Annuity. The Annuity Starting Date for a distribution in a form other
than a Qualified Joint and Survivor Annuity may be less than 30 days after receipt of
the written explanation described in the preceding sentence provided: (A) the
Participant has been provided with information that clearly indicates that the
Participant has at least 30 days to consider whether to waive the Qualified Joint and
Survivor Annuity and elect (with Spousal consent) to a form of distribution other
than a Qualified Joint and Survivor Annuity; (B) the Participant is permitted to
revoke any affirmative distribution election at least until the Annuity Starting Date
or, if later, at any time prior to the expiration of the 7-day period that begins the
day after the explanation of the Qualified Joint and Survivor Annuity is provided to
the Participant; and (C) the Annuity Starting Date is a date after the date that the
written explanation was provided to the Participant. In the case of a Qualified
Pre-Retirement Survivor Annuity, the Administrator will provide each Participant
within the Applicable Period under subparagraph (4) with a written explanation of the
Qualified Pre-Retirement Survivor Annuity in such terms and manner as would be
comparable to the written explanation applicable to a Qualified Joint and Survivor
Annuity.
	 
	 	(4)	 	Applicable Period. The term “Applicable Period” means whichever of
the following periods ends last: (A) the period beginning with the first day of the
Plan Year in which the Participant attains Age 32 and ending with the close of the
Plan Year preceding the Plan Year in which the Participant attains Age 35; (B) a
reasonable period after the individual becomes a Participant in the Plan; (C) a
reasonable period ending after the requirements of Code §401(a)(11) apply to the
Participant; or (D) a reasonable period ending after the requirements of Code
§417(a)(5) cease to apply with respect to the Participant. For
purposes of this subparagraph, a reasonable period means the end of the two year
period beginning one year prior to the date the applicable event occurs, and ending
one year after that date.




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	 	(5)	 	Participants Who Terminate Before Age 35. If a Participant
Terminates Employment before the Plan Year in which he or she reaches Age 35, the
notice required under subparagraph (3) will be provided within the two year period
beginning one year prior to such Termination of Employment and ending one year after
such Termination of Employment. If such Participant thereafter returns to employment
with the Employer, the Applicable Period for such Participant will be re-determined.
	 
	 	(6)	 	Elections Must Have Spousal Consent. A Participant’s election not
to receive a Qualified Joint and Survivor Annuity or a Participant’s election not to
receive a Qualified Pre-Retirement Survivor Annuity will not be effective unless (A)
the Participant’s Spouse consents in writing to the election; (B) the election
designates a specific Beneficiary (or form of benefit) which may not be changed
without Spousal consent (or the consent of the Spouse expressly permits designations
by the Participant without any requirement of further Spousal consent); and (C) the
Spouse’s consent acknowledges the effect of the election and is witnessed by the
Administrator or a notary public.
	 
	 	(7)	 	Additional Requirements and Exceptions for Spousal Consent.
Notwithstanding subparagraph (6) above, a Spouse’s consent will not be required if
there is no Spouse, if the Spouse cannot be located, or if there are other
circumstances (as set forth in the Code or Regulations) which preclude the necessity
of such Spouse’s consent. Any consent by a Participant’s Spouse (or establishment
that consent cannot be obtained) will be effective only with respect to such Spouse.
A consent that permits designations by the Participant without any requirement of
further Spousal consent must acknowledge that the Spouse has the right to limit
consent to a specific Beneficiary, and a specific form of benefit where applicable,
and that the Spouse voluntarily elects to relinquish either or both of such rights. A
revocation of a prior election may be made by a Participant without the Spouse’s
consent at any time before benefits begin. No Spouse’s consent obtained under
subparagraph (6) above will be valid unless the Participant has received notice as
provided in subparagraph (3) above.






	5.9	 	Required Minimum Distributions. All distributions from the Plan will be determined and made in accordance with the
final and temporary Regulations under Code §401(a)(9) on April 17, 2002. Pursuant to those
Regulations, all distributions will be determined in accordance with the following provisions:






	 	(a)	 	General Rules. All distributions under this section will be made in
accordance with these general rules:






	 	(1)	 	Effective Date. The provisions of this Section will apply for
purposes of determining required minimum distributions for calendar years beginning
with the 2003 calendar year, and also to distributions made on or after December 31,
2001.
	 
	 	(2)	 	Coordination with Minimum Distribution Requirements Previously in
Effect. Required minimum distributions made on or after December 31, 2001 but
prior to January 1, 2003 will be determined as follows: If the total amount of 2002
required minimum distributions under the Plan made to the distributee prior to the
effective date of this Section equals or exceeds the required minimum distributions
determined under this Section, then no additional distributions will be required to
be made for 2002 on or after such date to the distributee. If the total amount of
2002 required minimum distributions under the plan made to the distributee prior to
the effective date of this Section is less than the amount determined under this
Section, then required minimum distributions for 2002 on and after such date will be
determined so that the total amount of required minimum distributions for 2002 made
to the distributee will be the amount determined under this Section.
	 
	 	(3)	 	Precedence. The requirements of this Section will take precedence
over any inconsistent provisions of the Plan and any prior Plan amendments.
	 
	 	(4)	 	Requirements of Regulations Incorporated. All distributions
required under this Section will be determined and made in accordance with the
Regulations under Code §401(a)(9).
	 
	 	(5)	 	TEFRA §242(b)(2) Elections. Notwithstanding the other provisions
of this Section, distributions may be made under a designation made before January 1,
1984, in accordance with Tax Equity and Fiscal Responsibility Act (TEFRA) §242(b)(2)
and the provisions of the Plan that relate to TEFRA §242(b)(2).




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	 	(b)	 	Time and Manner of Distribution. All required minimum distributions will
be made from the Plan in the following time and in the following manner, provided,
however, that for the 2009 Plan Year the provisions of this Section 5.9 shall not apply
and no required minimum distributions shall be required as authorized under section
401(a)(9)(h) of the Code if the Participant or former Participant so elects in accordance
with procedures adopted by the Committee:






	 	(1)	 	Required Beginning Date. The Participant’s entire interest will be
distributed, or begin to be distributed, to the Participant no later than the
Participant’s Required Beginning Date.
	 
	 	(2)	 	Death of Participant Before Distributions Begin. If the
Participant dies before distribution begins, the Participant’s entire interest will
be distributed (or begin to be distributed) not later than as follows:






	 	(A)	 	5-Year Rule Applies to All Distributions to Designated
Beneficiaries. If the Participant dies before distributions begin and there
is a Designated Beneficiary, the Participant’s entire interest will be
distributed to the Designated Beneficiary by December 31 of the calendar year
containing the fifth anniversary of the Participant’s death. If the Participant’s
surviving Spouse is the sole Designated Beneficiary and the surviving Spouse dies
after the Participant but before distributions to either the Participant or the
surviving Spouse begin, this subparagraph will apply as if the surviving Spouse
were the Participant. This subparagraph also applies to all distributions.
	 
	 	(B)	 	Date Distributions Are Deemed To Begin. For purposes of
this subparagraph (b)(2) and paragraph (d), distributions are considered to begin
on the Participant’s Required Beginning Date. If distributions under an annuity
purchased from an insurance company irrevocably commence to the Participant
before the Participant’s Required Beginning Date, then the date distributions are
considered to begin is the date distributions actually commence.






	 	(3)	 	Forms of Distribution. Unless the Participant’s interest is
distributed as an annuity purchased from an insurance company or in a single sum on
or before the Required Beginning Date, as of the first Distribution Calendar Year
distributions will be made in accordance with paragraphs (c) and (d). If the
Participant’s interest is distributed as an annuity purchased from an insurance
company, distributions thereunder will be made in accordance with the requirements of
Code §401(a)(9) and the Regulations.






	 	(c)	 	Required Minimum Distributions During the Participant’s Lifetime. The
amount of required minimum distributions during a Participant’s lifetime will be
determined as follows:






	 	(1)	 	Amount of Required Distribution for Each Distribution Calendar
Year. During the Participant’s lifetime, the minimum amount that will be
distributed each Distribution Calendar Year is the lesser of (A) the quotient
obtained by dividing the Participant’s Account Balance by the distribution period in
the Uniform Lifetime Table set forth in Regulation §1.401(a)(9)-9, using the
Participant’s age as of the Participant’s birthday in the Distribution Calendar Year;
or (B) if the Participant’s sole Designated Beneficiary for the Distribution Calendar
Year is the Participant’s Spouse, then the quotient obtained by dividing the
Participant’s Account Balance by the number in the Joint and Last Survivor Table set
forth in Regulation §1.401(a)(9)-9, using the Participant’s and Spouse’s attained
ages as of the Participant’s and Spouse’s birthdays in the Distribution Calendar
Year.
	 
	 	(2)	 	Required Minimum Distributions Continue Through Year of Death.
Required minimum distributions will be determined under this paragraph (c) beginning
with the first Distribution Calendar Year and up to and including the Distribution
Calendar Year that includes the Participant’s date of death.






	 	(d)	 	Required Minimum Distributions After the Participant’s Death. Required
minimum distributions will be made after a Participant’s death in accordance with the
following provisions:






	 	(1)	 	Death On or After Date Distribution Begins. If a Participant dies
on or after the date distribution begins, then the amount of a required minimum
distribution will be determined as follows:




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	 	(A)	 	Participant Survived by Designated Beneficiary. If the
Participant dies on or after the date distributions begin and there is a
Designated Beneficiary, then the minimum amount that will be distributed for each
Distribution Calendar Year after the year of the Participant’s death is the
quotient obtained by dividing the Participant’s Account Balance by the longer of
the remaining Life Expectancy of the Participant or the remaining Life Expectancy
of the Designated Beneficiary, determined in accordance with the following
provisions:






	 	(i)	 	Calculation of Remaining Life Expectancy. The
Participant’s remaining Life Expectancy is calculated using his or her age in
the year of death, reduced by one for each subsequent year.
	 
	 	(ii)	 	Surviving Spouse Is the Sole Designated Beneficiary.
If the Participant’s surviving Spouse is the Participant’s sole Designated
Beneficiary, then the remaining Life Expectancy of the surviving Spouse is
calculated for each Distribution Calendar Year after the year of the
Participant’s death using the surviving Spouse’s age as of the Spouse’s
birthday in that Distribution Calendar Year. For Distribution Calendar Years
after the year of the surviving Spouse’s death, the remaining Life Expectancy
of the surviving Spouse is calculated using the age of the surviving Spouse as
of the Spouse’s birthday in the calendar year of the Spouse’s death, reduced
by one for each subsequent calendar year.
	 
	 	(iii)	 	Surviving Spouse Is the Not Sole Designated
Beneficiary. If the Participant’s surviving Spouse is not the
Participant’s sole Designated Beneficiary, then the Designated Beneficiary’s
remaining Life Expectancy is calculated using the age of the Beneficiary in
the year following the year of the Participant’s death, reduced by one for
each subsequent calendar year.






	 	(B)	 	No Designated Beneficiary. If the Participant dies on or
after the date distributions begin and there is no Designated Beneficiary as of
September 30 of the year after the year of the Participant’s death, then the
minimum amount that will be distributed for each Distribution Calendar Year after
the year of the Participant’s death is the quotient obtained by dividing the
Participant’s Account Balance by the Participant’s remaining Life Expectancy
calculated using the age of the Participant in the year of death, reduced by one
each subsequent year.






	 	(2)	 	Death Before the Date Distribution Begins. If a Participant dies
before the date distribution begins, then the amount of a required minimum
distribution will be determined as follows: If a Participant dies before the date
distributions begin and there is no Designated Beneficiary as of September 30 of the
year following the year of the Participant’s death, distribution of the Participant’s
entire interest will be completed by December 31 of the calendar year containing the
fifth anniversary of such death.






	5.10	 	Statutory Commencement of Benefits. Unless the Participant otherwise elects, distribution of a Participant’s benefit must
begin no later than the 60th day after the latest of the close of the Plan Year in which the
Participant (a) reaches the earlier of Age 65 or Normal Retirement Age; (b) reaches the 10th
anniversary of the year that the Participant commenced Plan participation; or (c) Terminates
Employment with the Employer. However, the failure of a Participant (and, with respect to any
portion of the Participant’s Account which is subject to the Qualified Joint and Survivor
Annuity requirements of Code §401(a)(11) and Code §417, the Participant’s Spouse) to consent
to a distribution while a benefit is Immediately Distributable will be deemed to be an
election to defer the payment (or the commencement of the payment) of any benefit sufficient
to satisfy this Section. In addition, if this Plan provides for an Early Retirement Date, then
a Participant who satisfied the service requirement (if applicable) for Early Retirement Age
prior to Termination of Employment will be entitled to receive his or her Vested Aggregate
Account balance, if any, upon (a) the satisfaction of the age requirement (if applicable) for
Early Retirement Age, and (b) reaching the Participant’s Early Retirement Date.






	5.11	 	Earnings Before Benefit Distribution. As of the Valuation Date coinciding with or next following the date a Participant
Terminates Employment with the Employer for any reason, the Administrator will, until a
distribution is made to the Participant or the Participant’s Beneficiary in accordance with
Sections 5.1, 5.2, 5.3, 5.4, or 5.5, direct the Trustee in a uniform nondiscriminatory manner
to either (a) invest the Participant’s Vested Aggregate Account balance determined as of such
Valuation Date in a separate interest bearing account; or (b) leave the Participant’s Vested
Aggregate Account balance as part of the general Trust Fund. If the Participant’s Vested
Aggregate Account balance remains as part of the general Trust Fund, then such account will
either (a) share in the allocation of net earnings
and losses under Section 3.10 as a non-segregated account, or (b) be granted interest at a
rate consistent with the interest bearing investments of the Trust Fund.




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	5.12	 	Distribution in the Event of Legal Incapacity. If any person entitled to benefits (the “Payee”) is under any legal incapacity by
virtue of age or mental condition, then payments may be made in one or more of the following
ways as directed by the Administrator: (a) to a court-appointed guardian of the Payee; (b) to
the person or entity having a valid power of attorney of the Payee or the Payee’s estate; (c)
to any other person or entity authorized under State (or Commonwealth) law to receive benefits
on behalf of the Payee; or (d) if the Payee is a minor, to the authorized person or entity of
the Payee (e.g., custodian or guardian) under any State’s (or Commonwealth’s) Uniform
Transfers to Minors Act or Uniform Gifts to Minors Act.
	 
	5.13	 	Missing Payees and Unclaimed Benefits. With respect to a Participant or Beneficiary who has not claimed any benefit (the
“missing payee”) to which such missing payee is entitled, and with respect to any Participant
or Beneficiary who has not satisfied the administrative requirements for benefit payment, the
Administrator may elect to either (a) segregate the benefit into an interest bearing account,
in which event an annual maintenance fee as may be set from time to time in a policy
established by the Sponsoring Employer may be assessed against the segregated account; (b)
subject to a policy established by the Administrator, distribute the benefit at any time in
any manner which is sanctioned by the Internal Revenue Service and/or the Department of Labor,
which may include (but not be limited to) (1) distribute the benefit in a automatic direct
rollover to an individual retirement plan designated by the Administrator; such individual
retirement plan, as defined in Code §7701(a)(37), may be either an individual retirement
account within the meaning of Code §408(a) or an individual retirement annuity within the
meaning of Code §408(b); or (2) distribute the benefit to the Pension Benefit Guarantee
Corporation or any other authorized Federal Department or agency; (c) distribute the benefit
to any person or entity who is appointed under State (or Commonwealth) law to act as a duly
authorized guardian, legal representative, conservator, or power of attorney; or (d) treat the
entire benefit as a Forfeiture. If a missing payee whose benefit has been forfeited is
located, or if a payee whose benefit has been forfeited for failure to satisfy the
administrative requirements for benefit payment subsequently satisfies such administrative
requirements and claims his or her benefit, and if the Plan has not terminated (or if the Plan
has terminated, all benefits have not yet been paid), then the benefit will be restored. The
Administrator, on a case by case basis, may elect to restore the benefit by the use of
earnings from non-segregated assets of the Fund, by Employer contributions, by available
Forfeitures of the Forfeiture Account, or by any combination thereof. However, if any such
payee has not been located (or satisfied the administrative requirements for benefit payment)
by the time the Plan terminates and all benefits have been distributed from the Plan, then the
Forfeiture of such unpaid benefit will not be restored.
	 
	5.14	 	Direct Rollovers. This Section applies to distributions made after December 31, 2001. Notwithstanding any
provision of the Plan to the contrary that would otherwise limit a distributee’s election, a
distributee may elect, at the time and in the manner prescribed by the Plan, to have any
portion of an eligible rollover distribution paid directly to an eligible retirement plan
specified by the distributee in a direct rollover.






	 	(a)	 	Eligible Rollover Distribution. The term “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 (1) any
distribution that is one of a series of substantially equal periodic payments (not less
frequently than annually) made for the life (or life expectancy) of the distributee or
the joint lives (or joint life expectancies) of the distributee and the distributee’s
designated beneficiary, or for a specified period of ten years or more; (2) any
distribution to the extent such distribution is required under Code §401(a)(9); (3) the
portion of any distribution that is not includible in gross income (determined without
regard to the exclusion for net unrealized appreciation with respect to Employer
securities); (4) the portion of any distribution which is attributable to a financial
hardship distribution; and (5) any other distribution that is reasonably expected to
total less than $200 during a year.
	 
	 	(b)	 	Voluntary Employee Contributions as Eligible Rollover Distributions.
Notwithstanding anything in the Plan to the contrary, with respect to distributions made
after December 31, 2001, an eligible rollover distribution may include Voluntary Employee
Contributions (if any) which are not includible in gross income; however, the portion of
an eligible rollover distribution attributable to Voluntary Employee Contributions can be
paid only to an individual retirement account or annuity described in Code §408(a) or
(b), or to a qualified defined contribution plan described in Code §401(a) or §403(a)
that agrees to separately
account for amounts so transferred, including separately accounting for the portion of
such distribution which is includible in gross income and the portion of such distribution
which is not so includible. Furthermore, in accordance with the Job Creation and Worker
Assistance Act of 2002, when a distribution includes Voluntary Employee Contributions
which are not includible in gross income, the amount that is rolled over will first be
attributed to amounts includible in gross income.




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	 	(c)	 	Definition of Eligible Retirement Plan. With respect to distributions made
after December 31, 2001, the term “eligible retirement plan” means an individual
retirement account described in Code §408(a); an individual retirement annuity described
in Code §408(b); an annuity plan described in Code §403(a); an annuity contract described
in Code §403(b); a qualified trust described in Code §401(a); or an eligible deferred
compensation plan under Code §457(b) 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. This definition of eligible retirement plan will also
apply in the case of a distribution to a surviving Spouse, or to a Spouse or former
Spouse who is the alternate payee under a qualified domestic relation order, as defined
in Code §414(p); such distribution will be made in the same manner as if the Spouse was
the Employee. If any portion of an eligible rollover distribution is attributable to
payments or distributions from an individual’s Roth Elective Deferral Account, if any,
(or the segregated portion of an individual’s Rollover Contribution Account that is
attributable to Roth Elective Deferrals, if any), then an eligible retirement plan with
respect to such portion will only be either another plan’s designated Roth account of the
individual from whose account the payments or distributions were made, or such
individual’s Roth IRA.
	 
	 	(d)	 	Definition of Distributee. The term “distributee” means an Employee or
former Employee. In addition, an Employee’s or former Employee’s surviving Spouse and an
Employee’s or former Employee’s Spouse or former Spouse who is the alternate payee under
a qualified domestic relations order as defined in Code §414(p), are distributees with
regard to the interest of the Spouse or former Spouse. With respect to any portion of a
distribution that is made after December 31, 2006 from an eligible retirement plan of a
deceased Employee, a distributee for purposes of a direct trustee-to trustee transfer
will include an individual who is the Designated Beneficiary of the Employee and who is
not the surviving Spouse of the Employee.
	 
	 	(e)	 	Definition of Direct Rollover. The term “Direct Rollover” means a payment
by the Plan to the eligible retirement plan that is specified by the distributee.
	 
	 	(f)	 	Direct Rollover Rules for Roth Elective Deferral Account. The Plan will
not provide for a direct rollover for distributions from a Participant’s Roth Elective
Deferral Account, if any, if the amount of the distributions that are eligible rollover
distributions are reasonably expected to total less than $200 during a year. In addition,
any distribution from a Participant’s Roth Elective Deferral Account is not taken into
account in determining whether distributions from the other Participant’s Account(s) are
reasonably expected to total less than $200 during a year.






	5.15	 	Distribution of Property. The determination to pay any distribution in property will be made by the Administrator
in its sole discretion applied in a nondiscriminatory manner that does not discriminate in
favor of Participants who are HCEs. A Participant, Beneficiary or alternate payee may elect to
receive amounts invested in Sponsor Stock in an in-kind distribution of Sponsor Stock.
However, if this is an amended or restated Plan, then the payee will have the right to elect a
full or partial distribution in property pursuant to and limited by the provisions of Section
11.1(e).
	 
	5.16	 	Financial Hardship Distributions. Subject to rules and procedures established by the Administrator in an administrative
policy regarding hardship distributions, a Participant who is still an Employee may make a
written request to the Administrator that a distribution be made to the Participant because of
his or her immediate and heavy financial hardship. Any such distribution will be made in
accordance with the provisions of an administrative policy regarding financial hardship
distributions that is promulgated under Section 8.6 by the Administrator; such administrative
policy will include (but not be limited to) (a) the Participant’s accounts (or sub-accounts)
that are available for financial hardship distributions; (b) the maximum percentages of such
accounts (or sub-accounts) that may be distributed for financial hardships; and (c) the
standards to be used in determining if a Participant has incurred a financial hardship for
purposes of financial hardship distributions. Such standards must be based on
non-discriminatory and objective criteria. Any distribution under this Section of a
Participant’s Pre-Tax Elective Deferrals may include any allocable earnings that are credited
to such Participant’s Pre-Tax Elective Deferral Account as of the
later of December 31, 1988 or the end of the last Plan Year ending before July 1, 1989, any
Qualified Non-Elective Contributions (and allocable earnings) as of the later of December 31,
1988 or the end of the last Plan Year ending before July 1, 1989, and any Qualified Matching
Contributions (and allocable earnings) as of the later of December 31, 1988 or the end of the
last Plan Year ending before July 1, 1989.




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	5.17	 	Pre-Retirement Distributions. A Participant who is still an Employee may request in writing to the Administrator
that up to 100% of the Participant’s Vested Interest in the accounts set forth below be
distributed to the Participant prior to Normal Retirement Age, subject to the following
provisions:






	 	(a)	 	Amount and Form of Distribution. The amount of a Participant’s Vested
Interest for distribution under this Section will be determined as of the Valuation Date
which coincides with or immediately precedes the date of distribution. Any distribution
under this Section will be made to the Participant in a single payment. When feasible,
any such distribution will be paid at the Participant’s direction within 60 days of his
or her request, but not later than a date as soon as administratively practical following
the next Valuation date after the Administrator’s receipt of such request.
	 
	 	(b)	 	Elective Deferral, QMAC/QNEC Accounts. A Participant who has reached Age
591/2 can take a distribution of up to 100% of his or her Elective Deferral Account,
Qualified Matching Contribution Account and Qualified Non-Elective Contribution Account.
	 
	 	(c)	 	Non-Safe Harbor Matching Contribution Accounts. A Participant who
satisfies the following requirements can take a distribution of up to 100% of his or her
Non-Safe Harbor Matching Contribution Account: the Participant must have reached Age 591/2.
	 
	 	(d)	 	Safe Harbor 401(k) Contributions. Distribution under this Section with
respect to Safe Harbor 401(k) Contributions will only be permitted as set forth in a Safe
Harbor 401(k) Addendum executed by the Sponsoring Employer from time to time. However,
the minimum attained age requirement with respect to the distribution of amounts
attributable to a Participant’s ADP Safe Harbor Non-Elective Contributions and/or ADP
Safe Harbor Matching Contributions is age 591/2.
	 
	 	(e)	 	Frequency of Pre-Retirement Distributions. The frequency of pre-retirement
distributions to any Participant under this Section will be determined pursuant to an
administrative policy regarding pre-retirement distributions that is promulgated under
Section 8.6 by the Administrator.
	 
	 	(f)	 	Participants Who Are Not 100% Vested. If a distribution is made under this
Section at a time when the Participant has less than a 100% Vested Interest in his or her
Non-Safe Harbor Non-Elective Contribution sub-account and Matching Contribution
sub-account and such Vested Interest may increase, a separate account will be established
for the Participant’s Non-Safe Harbor Non-Elective Contribution sub-account balance and
the Participant’s Matching Contribution sub-account balance at the time of distribution,
and at any relevant time the Participant’s Vested Interest in the separate account will
be equal to an amount (“X”) determined by the following formula: X = P(AB + (R x D)) — (R
x D). In applying the formula, “P” is the Vested Interest at the relevant time, “AB” is
the respective account balance at the relevant time, “D” is the amount of the
distribution, and “R” is the ratio of the respective account balance at the relevant time
to the respective account balance after distribution.
	 
	 	(g)	 	Restriction on Certain Transfer Contributions Account. Notwithstanding
anything in this Section to the contrary, no pre-retirement distribution can be made
under this Section with respect to Transfer Contribution Accounts (including
post-transfer earnings thereon) that are transferred into this Plan from a money purchase
plan or target benefit plan (other than any portion thereof which is attributable to
Voluntary Employee Contributions). Furthermore, if the Transfer Contributions are
Elective Deferrals (including QNECs, QMACs, and ADP Safe Harbor Contributions) which are
transferred to this Plan in a direct or indirect trustee-to-trustee transfer from another
qualified plan and which are subject to the limitations in Regulation §1.401(k)-1(d),
then the distribution of such Transfer Contributions (including post-transfer earnings
thereon) will be subject to the limitations in Regulation §1.401(k)-1(d).






	5.18	 	Distribution of Excess Elective Deferrals. Excess Elective Deferrals, plus any income and minus any loss allocable thereto, will
be distributed no later than April 15th to any Participant to whose account Excess Elective
Deferrals were allocated for the preceding taxable year or calendar year and who claims Excess
Elective Deferrals for such taxable year or calendar year. Distribution of Excess Elective
Deferrals will be made in accordance with the following provisions:






	 	(a)	 	Assignment of Excess Elective Deferrals. A Participant may assign to this
Plan any Excess Elective Deferrals made during a taxable year of the Participant by
notifying the Administrator on or before March 15th (or such later date as established by
the Administrator) of the subsequent year of the amount of the




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	 	 	 	Excess Elective Deferrals
to be assigned to the Plan. A Participant will be deemed to notify the Administrator of
any Excess Elective Deferrals that arise by taking into account only those Elective
Deferrals made to this Plan and any other plan, contract or arrangement of the Sponsoring
Employer. Notwithstanding any other provision of the Plan, Excess Elective Deferrals,
plus any income and minus any loss allocable to such Excess Elective Deferrals, will be
distributed no later than April 15 to any Participant to whose account Excess Elective
Deferrals were assigned for the preceding year and who claims Excess Elective Deferrals
for such taxable year or calendar year.






	 	(b)	 	Determination of Income or Loss. Excess Elective Deferrals will be
adjusted for any income or loss up to the last day of the Plan Year, without considering
the gap period or any adjustment for income or loss during the gap period (the period
between the end of the Participant’s taxable year and the date of distribution). The Plan
may use any reasonable method for computing income or loss allocable to Excess Elective
Deferrals, provided such method is used consistently for all Participants and for all
corrective distributions under the Plan for the Plan Year, and is used by the Plan for
allocating income or loss to Participants’ Accounts:
	 
	 	(c)	 	Source of Distribution. Distribution of Excess Elective Deferrals will be
taken from a Participant’s investment options (if any) based on rules established by the
Administrator. In addition, for years beginning after 2005, unless another rule is
established by the Administrator, distribution of Excess Elective Deferrals will first be
made from a Participant’s Roth Elective Deferral Account, if any, before the
Participant’s Pre-Tax Elective Deferral Account, to the extent Roth Elective Deferrals
were made for the year, unless the Administrator permits the Participant to specify
otherwise.






	5.19	 	Distribution of Excess Contributions. Notwithstanding any other provision of the Plan, Excess Contributions, plus any income
and minus any loss allocable thereto, will be distributed no later than 12 months after a Plan
Year to Participants to whose accounts such Excess Contributions were allocated for such Plan
Year, except to the extent such Excess Contributions are classified as Catch-up Contributions.






	 	(a)	 	Allocation to Highly Compensated Employees. Excess Contributions will be
allocated to the Highly Compensated Employees with the largest amounts of Employer
contributions taken into account in calculating the ADP Test for the Plan Year in which
the Excess Contributions arose, beginning with the Highly Compensated Employee with the
largest amount of such Employer contributions and continuing in descending order until
all the Excess Contributions have been allocated. For purposes of the preceding sentence,
the “largest amount” is determined by including and excluding such Employer contributions
actually paid over to the Trust on behalf of such Participant for the Plan Year that are
described in Section 1.6. To the extent a Highly Compensated Employee has not reached his
or her Catch-Up Contribution Limit, Excess Contributions allocated to such Highly
Compensated Employee are Catch-Up Contributions and will not be treated as Excess
Contributions. Excess Contributions will be treated as Annual Additions, even if such
Excess Contributions are distributed.
	 
	 	(b)	 	Distribution of Excess Contributions After 21/2 Months. If Excess
Contributions (other than Catch-up Contributions) are distributed more than 21/2 months (or
such later time as may be granted by future governmental guidance) after the last day of
the Plan Year in which such Excess Contributions arose, then a 10% excise tax will be
imposed on the Sponsoring Employer with respect to such Excess Contributions.
	 
	 	(c)	 	Determination of Net Income or Loss. For Plan Years beginning prior to
January 1, 2006 (or such earlier effective date as may be provided in a separate
amendment implementing the final §401(k) Regulations and as permitted by such
Regulations), Excess Contributions will be adjusted for any income or loss up to the end
of the Plan Year and, at the discretion of the Administrator, may be adjusted for income
or loss during the period, if any, between the end of the Plan Year and the actual date
of distribution (the “gap period”). However, effective as of the first day of the first
Plan Year beginning on or after January 1, 2006 (or such
earlier effective date as may be provided in a separate amendment implementing the final
§401(k) Regulations and as permitted by such Regulations), Excess Contributions will be
adjusted for any income or loss up to the end of the Plan Year and during the gap period.
Any adjustment for income or loss during the gap period will be allocated in a consistent
manner to all Participants, and to all corrective distributions made for the Plan Year,
and will be the amount determined by one of the methods set forth either in subparagraph
(1), subparagraph (2), or subparagraph (3) below, as elected by the Administrator:






	 	(1)	 	Method 1. The amount determined by multiplying the income or loss
allocable to the Participant’s Elective Deferrals (and QNECs or QMACs, or both, if
such contributions are used in the ADP Test) for




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	 	 	 	the Plan Year and the gap period, by
a fraction, the numerator of which is the Participant’s Excess Contributions for the
Plan Year and the denominator of which is the Participant’s Elective Deferral Account
balance (and QNECs or QMACs, or both, if such contributions are used in the ADP Test)
as of the beginning of the Plan Year plus any Elective Deferrals (and QNECs or QMACs,
or both, if such contributions are used in the ADP Test) allocated to the Participant
during the Plan Year and gap period.






	 	(2)	 	Method 2. The sum of (A) and (B): (A) the amount determined by
multiplying the income or loss allocable to the Participant’s Elective Deferrals (and
QNECs or QMACs, or both, if such contributions are used in the ADP Test) for the Plan
Year, by a fraction, the numerator of which is the Participant’s Excess Contributions
for the Plan Year and the denominator of which is the Participant’s Elective Deferral
Account balance (and QNECs or QMACs, or both, if such contributions are used in the
ADP Test) as of the beginning of the Plan Year plus any Elective Deferrals (and QNECs
or QMACs, or both, if such contributions are used in the ADP Test) allocated to the
Participant during such Plan Year; plus (B) the amount of gap period income or loss
equal to 10% of the amount determined under clause (A) above multiplied by the number
of whole months between the end of the Plan Year and the distribution date, counting
the month of distribution if the distribution occurs after the 15th day of such
month.
	 
	 	(3)	 	Method 3. The amount determined by any reasonable method of
allocating income or loss to the Participant’s Excess Contributions for the Plan Year
and the gap period, provided the method used is the same method used for allocating
income or losses to Participants’ Accounts. This Plan will not fail to use a
reasonable method for computing the income allocable to Excess Contributions merely
because the income allocable thereto is determined on a date that is no more than 7
days before the distribution.






	 	(d)	 	Accounting for Excess Contributions. Excess Contributions allocated to a
Participant will be distributed from the Participant’s Elective Deferral Account and QMAC
Account in proportion to the Participant’s Elective Deferrals and QMACs (to the extent
used in the ADP Test) for the Plan Year. Excess Contributions will be distributed from
the Participant’s QNEC Account only to the extent that the Excess Contributions exceed
the balance in the Participant’s Elective Deferral Account and QMAC Account.
	 
	 	(e)	 	Source and Ordering of Distribution. Distribution of Excess Contributions
will be taken from a Participant’s investment options (if any) based on rules established
by the Administrator. For purposes of determining the sources of a distribution of Excess
Contributions, the sources will be distributed in the following order (unless a policy
for the order of the sources to distribute Excess Contributions is established by the
Administrator and such policy will control): (1) unmatched Elective Deferrals, (2)
matched Elective Deferrals, (3) Qualified Matching Contributions (that are tested in the
ACP Test and that are utilized in (or shifted into) the ADP Test), and (4) Qualified
Non-Elective Contributions (to the extent that such contributions are utilized in the ADP
Test). In addition, for Plan Years beginning after 2005, unless a different rule is
established by the Administrator, distribution of Elective Deferrals that are Excess
Contributions will first be made from a Participant’s Roth Elective Deferral Account, if
any, before the Participant’s Pre-Tax Elective Deferral Account, to the extent that Roth
Elective Deferrals were made for the Plan Year, unless the Administrator permits the
Participant to specify otherwise.






	5.20	 	Distribution of Excess Aggregate Contributions. Excess Aggregate Contributions, plus any income and minus any loss allocable thereto,
will be forfeited, if forfeitable, or if not forfeitable, distributed no later than 12 months
after a Plan Year to Participants to whose Accounts such Excess Aggregate Contributions were
allocated for such Plan Year. Distribution will be made in accordance with the following
provisions:






	 	(a)	 	Allocation to Highly Compensated Employees. Excess Aggregate Contributions
will be allocated to the Highly Compensated Employees with the largest Contribution
Percentage Amounts taken into account in
calculating the ACP Test for the Plan Year in which the Excess Aggregate Contributions
arose, beginning with the Highly Compensated Employee with the largest amount of such
Contribution Percentage Amounts and continuing in descending order until all the Excess
Aggregate Contributions have been allocated. For purposes of the preceding sentence, the
“largest amount” is determined by including and excluding such Employer contributions and
allocations that are described in the definition of “Contribution Percentage Amounts.”
Excess Aggregate Contributions will be treated as Annual Additions, even if such Excess
Aggregate Contributions are distributed.




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	 	(b)	 	Distribution of Excess Aggregate Contributions After 21/2 Months. If Excess
Aggregate Contributions are distributed more than 21/2 months after the last day of the
Plan Year in which such Excess Aggregate Contributions arose, then a ten percent (10%)
excise tax will be imposed on the Sponsoring Employer maintaining the Plan with respect
to such Excess Aggregate Contributions.
	 
	 	(c)	 	Forfeitures of Excess Aggregate Contributions. Forfeitures of Excess
Aggregate Contributions will be used and/or allocated pursuant to the provisions of
Section 3.11(c).
	 
	 	(d)	 	Determination of Net Income or Loss. For Plan Years beginning prior to
January 1, 2006 (or such earlier effective date as may be provided in a separate
amendment implementing the final §401(m) Regulations and as permitted by such
Regulations), Excess Aggregate Contributions will be adjusted for any income or loss up
to the end of the Plan Year and, at the discretion of the Administrator, may be adjusted
for income or loss during the period, if any, between the end of the Plan Year and the
actual date of distribution (the “gap period”). However, effective as of the first day of
the first Plan Year beginning on or after January 1, 2006 (or such earlier effective date
as may be provided in a separate amendment implementing the final §401(m) Regulations and
as permitted by such Regulations), Excess Aggregate Contributions will be adjusted for
any income or loss up to the end of the Plan Year and during the gap period. Any
adjustment for income or loss during the gap period will be allocated in a consistent
manner to all Participants, and to all corrective distributions made for the Plan Year,
and will be the amount determined by one of the methods set forth either in subparagraph
(1), subparagraph (2), or subparagraph (3) below, as elected by the Administrator:






	 	(1)	 	Method 1. The amount determined by multiplying the income or loss
allocable to the Participant’s Voluntary Employee Contributions, Mandatory Employee
Contributions, Matching Contributions (if not used in the ADP Test), QNECs (if not
used in the ADP Test) and, to the extent applicable, Elective Deferrals for the Plan
Year and the gap period, by a fraction, the numerator of which is such Participant’s
Excess Aggregate Contributions for the Plan Year and the denominator of which is the
Participant’s Account balance(s) attributable to Contribution Percentage Amounts as
of the beginning of the Plan Year, plus any additional amounts attributable to
Contribution Percentage Amounts allocated to the Participant during such Plan Year
and the gap period.
	 
	 	(2)	 	Method 2. The sum of (A) and (B) as follows: (A) the amount
determined by multiplying the income or loss allocable to the Participant’s Voluntary
Employee Contributions, Mandatory Employee Contributions, Matching Contributions (if
not used in the ADP Test), QNECs (if not used in the ADP Test) and, to the extent
applicable, Elective Deferrals for the Plan Year, by a fraction, the numerator of
which is such Participant’s Excess Aggregate Contributions for the Plan Year and the
denominator of which is the Participant’s Account balance(s) attributable to
Contribution Percentage Amounts as of the beginning of the Plan Year, plus any
additional amounts attributable to Contribution Percentage Amounts allocated to the
Participant during such Plan Year; plus (B) the amount of gap period income or loss
equal to 10% of the amount determined under clause (A) above multiplied by the number
of whole months between the end of the Plan Year and the distribution date, counting
the month of distribution if the distribution occurs after the 15th day of such
month.
	 
	 	(3)	 	Method 3. The amount determined by any reasonable method of
allocating income or loss to the Participant’s Excess Aggregate Contributions for the
Plan Year and for the gap period, provided the method used is the same method used
for allocating income or losses to Participants’ Accounts. This Plan will not fail to
use a reasonable method for computing the income allocable to Excess Aggregate
Contributions merely because the income allocable to a Participant’s Excess Aggregate
Contributions is determined on a date that is no more than 7 days before the
distribution.






	 	(e)	 	Accounting for Excess Aggregate Contributions. Excess Aggregate
Contributions that are allocated to a Participant will be forfeited, if forfeitable, or
will be distributed on a pro-rata basis from the Participant’s Voluntary Employee
Contribution Account, Mandatory Employee Contribution Account, Matching Contribution
Account and Qualified Matching Contribution Account (and if applicable, from the
Participant’s Qualified Non-Elective Contribution Account, Pre-Tax Elective Deferral
Account, Roth Elective Deferral Account, or any combination thereof).
	 
	 	(f)	 	Source and Ordering of Distribution. Distribution of Excess Aggregate
Contributions will be taken from a Participant’s investment options (if any) based on
rules established by the Administrator. In determining the sources of a distribution of
Excess Aggregate Contributions, the sources will be distributed in the following




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	 	 	 	order
(unless a policy for the order of the sources to distribute Excess Aggregate
Contributions is established by the Administrator and such policy will control): (1)
unmatched Voluntary Employee Contributions; (2) unmatched Mandatory Employee
Contributions; (3) unmatched Elective Deferrals (that are tested in the ADP Test and that
are utilized in (or shifted into) the ACP Test); (4) matched Voluntary Employee
Contributions and the Matching Contributions that relate to such Voluntary Employee
Contributions; (5) matched Mandatory Employee Contributions and the Matching
Contributions that relate to such Mandatory Employee Contributions; (6) matched Elective
Deferrals (that are tested in the ADP Test and that are utilized in (or shifted into) the
ACP Test) and the Matching Contributions that relate to such Elective Deferrals; (7)
Non-Safe Harbor Matching Contributions; (8) ACP Safe Harbor Matching Contributions (to
the extent that such contributions are subject to the ACP Test); (9) ADP Safe Harbor
Matching Contributions (to the extent that such contributions are subject to the ACP
Test); (10) Qualified Matching Contributions, and (11) Qualified Non-Elective
Contributions (to the extent that such contributions are utilized in the ACP Test). With
respect to Elective Deferrals that are tested in the ADP Test, that are utilized in (or
shifted into) the ACP Test, and that become Excess Aggregate Contributions, then for Plan
Years beginning after 2005, unless a different rule is established by the Administrator,
distribution of such Elective Deferrals that are Excess Aggregate Contributions will
first be made from a Participant’s Roth Elective Deferral Account, if any, before the
Participant’s Pre-Tax Elective Deferral Account, to the extent that Roth Elective
Deferrals were made for the Plan Year, unless the Administrator permits the Participant
to specify otherwise.






	5.21	 	Distribution of Rollover Contributions. An Employee’s Rollover Contribution Account will be distributed from the
Plan in accordance with the following provisions:






	 	(a)	 	Time of Distribution. An Employee may request in writing a withdrawal of
all or any portion of his or her Rollover Contribution Account at any time prior to
becoming a Participant, and thereafter upon the earlier of (1) the date the Employee is
entitled to a distribution of his or her Participant’s benefits under the provisions of
Article 5, or (2) the soonest possible administratively practical date after the
Participant’s Termination of Employment. In addition, the Employee may also withdraw all
or any portion of his or her Rollover Contribution Account at any time. The Administrator
may require advance notice of a reasonable period not to exceed 60 days prior to the
requested date of withdrawal. Any amount withdrawn cannot be redeposited to the
Employee’s Rollover Contribution Account. A withdrawal of all or any portion of an
Employee’s Rollover Contribution Account will not prevent an Employee from accruing any
future benefit attributable to Employer contributions. The Administrator may establish
rules or procedures regarding withdrawals from an Employee’s Rollover Contribution
Account.
	 
	 	(b)	 	Spousal Consent Requirements Upon Withdrawal. All or any portion of an
Employee’s Rollover Contribution Account can be withdrawn from the Plan without the
consent of the Employee’s Spouse.
	 
	 	(c)	 	Form of Distribution. A distribution of all or any portion of an
Employee’s Rollover Contribution Account prior to the time that the Employee is entitled
to a distribution of his or her Participant Account will only be made as a lump sum
payment. Any amount remaining in an Employee’s Rollover Contribution Account at the time
the Employee is entitled to a distribution of his or her Participant Account will be
distributed, at the election of the Participant, in a lump sum payment or in the same
manner as the Participant Account is distributed under the other provisions of this
Article 5.






	5.22	 	Distribution of Transfer Contributions. A Participant’s Transfer Contribution Account will be distributed from the Plan at the
same time and in the same manner as the Participant’s Account is distributed under Section
5.1, 5.2, 5.3, 5.4, subject to the following rules:






	 	(a)	 	Spousal Consent Requirements Upon Withdrawal. The following provisions
apply to the requirement of consent by the Participant’s Spouse with respect to a
withdrawal of all or any portion of a Participant’s Transfer Contribution Account from
the Plan:






	 	(1)	 	Transfer Was Subject to Code §401(a)(11). If the Transfer
Contribution was a direct or indirect transfer as defined in Code §401(a)(11) from a
defined benefit plan, a money purchase plan, a target benefit plan, a stock bonus
plan, or a profit sharing plan that provided for a life annuity form of payment to
the Participant, then a withdrawal of all or any portion of such Transfer
Contribution (and post-transfer earnings thereon) will be subject to the Spousal
consent requirements set forth in Section 5.8(b).




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	 	(2)	 	Transfer Was Not Subject to Code §401(a)(11). If the Transfer
Contribution was not a direct or indirect transfer as defined in Code §401(a)(11)
from a defined benefit plan; a money purchase plan; a target benefit plan; or a stock
bonus plan or a profit sharing plan that provided for a joint and survivor annuity or
a life annuity form of payment to the Participant, then all or any portion of such
Transfer Contribution (and post-transfer earnings thereon) can be withdrawn by the
Participant without the consent of the Participant’s Spouse.






	 	(b)	 	Form of Distribution. A withdrawal of all or any portion of a
Participant’s Transfer Contribution Account may also be made in the same manner as the
Participant’s Account under the other provisions of this Article 5, subject to the
Spousal consent requirements set forth in paragraph (a) above and Section 5.8. However,
notwithstanding the foregoing sentence to the contrary, if the Transfer Contribution was
a direct or indirect transfer as defined in Code §401(a)(11) from a defined benefit plan,
a money purchase plan, a target benefit plan, or a stock bonus plan or a profit sharing
plan that provided for a joint and survivor annuity or a life annuity form of payment to
the Participant, then regardless of the Normal Form of Distribution, a withdrawal of all
or any portion of such Transfer Contribution will be subject to the Qualified Joint and
Survivor Annuity and Qualified Pre-Retirement Survivor Annuity requirements of Code
§401(a)(11) and Code §417, and will be distributed in accordance with following
provisions:






	 	(1)	 	Distributions Other Than Death. If the Participant is married on
the Annuity Starting Date and has not died before such date, then such portion of the
Participant’s Transfer Contribution Account will be distributed in the form of a
Qualified Joint and Survivor Annuity. If the Participant is unmarried on the Annuity
Starting Date and has not died before such date, then such portion of the
Participant’s Transfer Contribution Account will be distributed as a life annuity. If
a Participant elects not to receive the annuity form of payment described above, then
such portion of the Participant’s Transfer Contribution Account will be distributed
in the manner described in Sections 5.1 through 5.4, as applicable. Any such election
by a Participant not to receive the annuity form of benefit described in this
paragraph must be made in accordance with the provisions set forth in Section 5.8(b)
of the Plan.
	 
	 	(2)	 	Distributions Upon Death. Notwithstanding any other Beneficiary
designation made by a Participant to the contrary, if a Participant is married on the
date of his or her death and dies before the Annuity Starting Date, then with respect
to such portion of a deceased Participant’s Transfer Contribution Account, the
Participant’s surviving Spouse will receive a minimum death benefit as a Qualified
Pre-Retirement Survivor Annuity unless such annuity has been waived under Section
5.8(b), in which event such death benefit will be distributed to the surviving Spouse
in the manner described in Section 5.2.






	 	(c)	 	Special Rule for Withdrawal of Elective Deferral Transfers.
Notwithstanding anything in this Section to the contrary, if the Transfer Contributions
are Elective Deferrals (including QNECs, QMACs, and ADP Safe Harbor Contributions) which
are transferred to this Plan in a direct or indirect trustee-to-trustee transfer from
another qualified plan and which are subject to the limitations in Regulation
§1.401(k)-1(d), then the distribution of such Transfer Contributions (including
post-transfer earnings thereon) will be subject to the limitations in Regulation
§1.401(k)-1(d).






	5.23	 	Distribution of Voluntary Employee Contributions. Voluntary Employee Contributions are not permitted.




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Article 6

Code § 415 Limitations





	6.1	 	Maximum Annual Additions. Subject to Sections 6.2 and 6.3, the maximum Annual Additions made to a Participant’s
various accounts maintained under the Plan for any Limitation Year will not exceed the lesser
of the Dollar Limitation of paragraph (a) or the Compensation Limitation of paragraph (b)
below, as follows:






	 	(a)	 	Dollar Limitation. For Limitation Years beginning on or after January 1,
2002, the Dollar Limitation is $40,000 as adjusted in accordance with Code §415(d).
	 
	 	(b)	 	Compensation Limitation. For Limitation Years beginning on or after
January 1, 2002, the Compensation Limitation is 100% of the Participant’s Code §415(c)(3)
Compensation, but this limit does not apply to any contribution for medical benefits
within the meaning of Code §401(h) or §419A(f)(2) after Termination of Employment which
is otherwise treated as an Annual Addition under Code §415(l)(1) or §419A(d)(2).






	6.2	 	Adjustments to Maximum Annual Addition. In applying the limitation on Annual Additions set forth in Section 6.1, the following
adjustments must be made:






	 	(a)	 	Short Limitation Year. If a Limitation Year is less than 12 months, then
the Dollar Limitation of Section 6.1(a) will be adjusted by multiplying the Dollar
Limitation by a fraction, the numerator of which is the number of months (including any
fractional parts of a month) in the short Limitation Year and the denominator of which is
12.
	 
	 	(b)	 	Multiple Defined Contribution Plans. If a Participant participates in
multiple defined contribution plans sponsored by the Employer which have different
Anniversary Dates, the maximum Annual Addition in this Plan for the Limitation Year will
be reduced by the Annual Additions credited to the Participant’s accounts in the other
defined contribution plans during the Limitation Year. If a Participant participates in
multiple defined contribution plans sponsored by the Employer which have the same
Anniversary Date, then (1) if only one of the plans is subject to Code §412, Annual
Additions will first be credited to the Participant’s accounts in the plan subject to
Code §412; and (2) if none of the plans are subject to Code §412, the maximum Annual
Addition in this Plan for a given Limitation Year will either (A) equal the product of
(i) the maximum Annual Addition for such Limitation Year minus any other Annual Additions
previously credited to the Participant’s account(s), multiplied by (ii) a fraction, the
numerator of which is the Annual Additions which would be credited to a Participant’s
accounts hereunder without regard to the Annual Additions limitation of Section 6.1 and
the denominator of which is the Annual Additions for all plans described in this
paragraph, or (B) be reduced by the Annual Additions credited to the Participant’s
accounts in the other defined contribution plans for such Limitation Year.






	6.3	 	Multiple Plans and Multiple Employers. All defined contribution plans (whether terminated or not) sponsored by the Employer
will be treated as one defined contribution plan. In addition, all Affiliated Employers will
be considered a single Employer.






	6.4	 	Adjustment for Excessive Annual Additions. For any Limitation Year, if the Annual Additions allocated to a Participant’s Account
exceed the Annual Additions limitation of Section 6.1 because of an allocation of Forfeitures,
a reasonable error in estimating a Participant’s Compensation, a reasonable error in
determining the amount of elective contributions (within the meaning of Code §402(g)(3)), or
because of other limited facts and circumstances that the Commissioner finds justify the
availability of the rules set forth in this Section, then such Participant’s Account will be
adjusted as follows in order to reduce the Excess Annual Additions:






	 	(a)	 	Catch-Up Contributions. First, if Catch-Up Contributions are permitted, a
catch-up eligible Participant who has Excess Annual Additions which include Elective
Deferrals and who has not reached his or her Catch-Up Contribution Limit can
recharacterize such Excess Annual Additions as Catch-Up Contributions.
	 
	 	(b)	 	Return of Employee Contributions. Next, Voluntary Employee Contributions,
if any, and next, the amount of Elective Deferrals and corresponding Employer Matching
Contributions, if any, to the extent that they would reduce the excess amount, will be
calculated. Such Elective Deferrals and Voluntary Employee Contributions plus earnings
attributable thereto, will be returned to the Participant. Any Employer Matching
Contribution amount will be applied as described in paragraphs (c) or (d) below,
depending on whether the Participant is covered by the Plan at the end of the Limitation
Year.




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	 	(c)	 	Excess Used To Reduce Employer Contributions If Participant Is Still Covered By
The Plan. If, after the application of paragraphs (a) and (b) above, Excess Annual
Additions still exist and the Participant is covered by the Plan at the end of the
Limitation Year, the Excess Annual Additions in the Participant’s Account will be used to
reduce Employer contributions (including any allocation of Forfeitures) for such
Participant in the next Limitation Year, and in each succeeding Limitation Year if
necessary.
	 
	 	(d)	 	Excess Used To Reduce Employer Contributions If Participant Is Not Covered By
The Plan. If, after the application of paragraphs (a) and (b) above, Excess Annual
Additions still exist and the Participant is not covered by the Plan at the end of a
Limitation Year, the Excess Annual Additions will be held unallocated in a suspense
account. The suspense account will be applied to reduce future Employer contributions
(including the allocation of any Forfeitures) for all remaining Participants in the next
Limitation Year, and in each succeeding Limitation Year if necessary.
	 
	 	(e)	 	Suspense Account. If a suspense account is in existence at any time during
a Limitation Year pursuant to this Section, then such suspense account will not
participate in the allocation of the Trust’s investment gains and losses. If a suspense
account is in existence at any time during a particular Limitation Year, then all amounts
in the suspense account must be allocated and reallocated to Participants’ Accounts
before any Employer Contributions or any Employee contributions may be made to the Plan
for that Limitation Year. A suspense account may not be distributed to Participants or
former Participants.




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Article 7

Loans, Insurance and Directed Investments





	7.1	 	Loans to Participants. Loans may be made from the Trust Fund to Participants and Beneficiaries who make
application to the Administrator requesting a loan. The Administrator has the sole right to
approve or disapprove the application. All loans must be evidenced by a legally enforceable
agreement (which may include more than one document) set forth in writing or in such other
form as may be approved by the Internal Revenue Service, and the terms of such agreement must
specify the amount and term of the loan, and the repayment schedule. Loans will only be made
in accordance with a separate written loan program which satisfies the requirements of Code
§72(p) and the Regulations promulgated thereunder, and the following provisions:






	 	(a)	 	General Rules. Loans (1) will be made available to all Participants and
Beneficiaries on a reasonably equivalent, non-discriminatory basis; (2) will not be made
available to HCEs in an amount greater than the amount made available to other Employees;
(3) must be adequately secured and bear a reasonable interest rate; and (4) cannot exceed
the present value of the Participant’s Vested Aggregate Account balance.
	 
	 	(b)	 	Spousal Consent. A Participant must obtain the consent of his or her
Spouse, if any, as set forth in Section 5.8 or Section 5.22 of the Plan in order to use
the remaining Vested Interest of the Participant’s Account balance as security for a loan
taken from the portion of the Participant’s Account which is subject to Code §401(a)(11)
and Code §417 at the time the loan is made, if any. Any such Spousal consent will be
obtained no earlier than the beginning of the 90-day period that ends on the date on
which the loan is to be so secured. The consent must be in writing, must acknowledge the
effect of the loan, and must be witnessed by a Plan representative or notary public. Such
consent will thereafter be binding upon the consenting Spouse or any subsequent Spouse
with respect to that loan. A new consent will be required if the remaining Participant’s
Account balance is used for renegotiation, extension, renewal, or other revision of the
loan. If valid Spousal consent has been obtained in accordance with this paragraph, then,
notwithstanding any other provision of this Plan to the contrary, the Vested portion of
the Participant’s Account balance that is used as a security interest held by the Plan by
reason of a loan that is outstanding to the Participant will be taken into account in
determining the amount of the Vested portion of the Participant’s Account balance payable
at the time of death or distribution, but only if the reduction is used as repayment of
the loan. If less than 100% of the Participant’s Account (determined without regard to
the preceding sentence) is payable to the surviving Spouse, then the death benefit will
be adjusted by first reducing the Vested portion of the Participant’s Account balance by
the amount of the security that is used for the loan.
	 
	 	(c)	 	Maximum Loan. No loan to a Participant or Beneficiary can be made to the
extent such loan, when added to the outstanding balance of all other loans to the
Participant or Beneficiary, would exceed the lesser of (1) $50,000 reduced by the excess
(if any) of the highest outstanding balance of loans during the one-year period ending on
the day before the loan is made, over the outstanding balance of loans from the Plan on
the date the loan is made; or (2) one-half the present value of the Vested Portion of the
Participant’s Vested Aggregate Account. However, notwithstanding the limitation in clause
(2) of the preceding sentence, the written loan policy may permit a Participant whose
Vested Aggregate Account balance is $20,000 or less to borrow an amount that does not
exceed the lesser of $10,000 or 100% of the Participant’s Vested Aggregate Account
balance if adequate security is provided on the loan amount in excess of that determined
under clause (2). For the purpose of the limitations set forth in this paragraph, all
loans from the plans (including this Plan) of the Sponsoring Employer and other
Affiliated Employers are aggregated.
	 
	 	(d)	 	Minimum Loan. The written loan policy may provide for a minimum loan not
to exceed $1,000.
	 
	 	(e)	 	Loan Repayments. Any loan by its terms will require that repayment (of
both principal and interest) be amortized in level payments, not less frequently than
quarterly, over a period not extending beyond five years from the date of the loan,
unless such loan is used to acquire a dwelling unit which within a reasonable time
(determined at the time the loan is made) will be used as the principal residence of the
Participant. In the event of default, then foreclosure on the note and attachment of
security will not occur until a distributable event occurs in the Plan. However,
notwithstanding the foregoing to the contrary, loan repayments will be suspended as
permitted under Code §414(u)(4)).
	 
	 	(f)	 	Assignments and Pledges Treated as Loans. An assignment or pledge of any
portion of the Participant’s interest in the Plan and a loan, pledge, or assignment with
respect to any insurance contract purchased under the Plan, will be treated as a loan
under this Section.





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	 	(g)	 	Restrictions Eliminated. Effective for Plan loans made after December 31,
2001, any prior Plan provisions that prohibited or otherwise restricted loans to any
owner-employee (as defined in Code §401(c)(3)) or shareholder-employee (as defined in
Code §4975(f)(6)(C)) will cease to apply. For this purpose, a shareholder-employee means
an Employee or officer of an electing small business (Subchapter S) corporation who owns
(or is considered as owning within the meaning of Code §318(a)(1)), on any day during the
taxable year of such corporation, more than 5% of the outstanding stock of the
corporation.






	7.2	 	Insurance on Participants. The purchase of Policies is not permitted except to the extent otherwise provided
under Section 7.3 of the Plan with respect to “key man” insurance.
	 
	7.3	 	Key Man Insurance. The Administrator may instruct the Trustee to purchase insurance Policies on the life
of any Participant whose employment is deemed to be key to the Employer’s financial success.
Such key man Policies will be deemed to be an investment of the Trust Fund and will be payable
to the Trust Fund as the beneficiary thereof. The Trustee may exercise any and all rights
granted under such Policies. Neither the Trustee, Employer, Administrator, nor any fiduciary
(including any Named Fiduciary) will be responsible for the validity of any Policy or the
failure of any insurer to make payments thereunder, or for the action of any person which
delays payment or renders a Policy void in whole or in part. No insurer which issues a Policy
will be deemed to be a party to this Plan for any purpose or to be responsible for its
validity; nor will any such insurer be required to look into the terms of the Plan nor to
question any action of the Trustee. The obligations of the insurer will be determined solely
by the Policy’s terms and any other written agreements between it and the Trustee. The insurer
will act only at the written direction of the Trustee, and will be discharged from all
liability with respect to any amount paid to the Trustee. The insurer will not be obligated to
see that any money paid by it to the Trustee or any other person is properly distributed or
applied.
	 
	7.4	 	Directed Investment Accounts. Pursuant to any rules or procedures promulgated under Section 8.6 by the
Administrator, Participants can direct the investment of a portion of (or all of) one or more
of their accounts (hereafter called Directed Investment Accounts) established under the terms
of the Plan. Investment directives will only be given in accordance with an administrative
policy regarding Directed Investment Accounts that is promulgated under Section 8.6 by the
Administrator. With respect to any Participant who fails to exercise the right to direct the
investment of his or her Directed Investment Accounts, such Directed Investment Accounts will
be invested by the Trustee at the direction of the Administrator in a “default investment”
which has been selected by the Administrator and which is expected to produce a favorable rate
of return and that minimizes the overall risk of losing money. With respect to Directed
Investment Accounts, fiduciaries will only be protected by ERISA §404(c) for a Plan Year if
all of the requirements of ERISA §404(c) and the Department of Labor Regulations promulgated
thereunder are complied with on each day of the Plan Year.




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Article 8

Duties of the Administrator





	8.1	 	Appointment, Resignation, Removal and Succession. The Sponsoring Employer will serve as the Administrator unless the Sponsoring Employer
elects to appoint another Administrator. Each Administrator that is appointed will continue
until his death, resignation, or removal, and any Administrator may resign by giving 30 days
written notice to the Sponsoring Employer. If an Administrator dies, resigns, or is removed,
his successor will be appointed as promptly as possible and such appointment will become
effective upon its acceptance in writing by such successor. Pending the appointment and
acceptance of any successor Administrator, any then acting or remaining Administrator will
have full power to act.
	 
	8.2	 	General Powers and Duties. The powers and duties of the Administrator include (a) appointing the Plan’s attorney,
accountant, actuary, or any other party needed to administer the Plan; (b) directing the
Trustees with respect to payments from the Trust Fund; (c) deciding if a Participant is
entitled to a benefit; (d) communicating with Employees regarding their participation and
benefits under the Plan, including the administration of all claims procedures; (e) filing any
returns and reports with the Internal Revenue Service, Department of Labor, or any other
governmental agency; (f) reviewing and approving any financial reports, investment reviews, or
other reports prepared by any party under clause (a) above; (g) establishing a funding policy
and investment objectives consistent with the purposes of the Plan and ERISA; (h) construing
and resolving any question of Plan interpretation; and (i) making any findings of fact the
Administrator deems necessary to proper Plan administration. Notwithstanding any contrary
provision of this Plan, benefits under this Plan will be paid only if the Administrator
decides in its discretion that the applicant is entitled to them. The Administrator’s
interpretation of Plan provisions, and any findings of fact, including eligibility to
participate and eligibility for benefits, are final and will not be subject to “de novo”
review unless shown to be arbitrary and capricious.
	 
	8.3	 	Functioning of the Committee. If a Committee is established, a member of the Committee will serve until his or her
death, disability, removal by the Sponsoring Employer, or resignation. In the event of any
vacancy arising from the death, disability, removal, or resignation of a member of the
Committee, the Sponsoring Employer may, but is not required to, appoint a successor to serve
in his or her place. The Committee will select a chairman and secretary from among its
members. Members of the Committee will serve without compensation. The Committee will act by
majority vote. The proper expenses of the Committee, and the compensation of its agents, if
any, that are appointed pursuant to Section 8.7, will be paid directly by the Employer.
	 
	8.4	 	Multiple Administrators. If more than one Administrator has been appointed by the Sponsoring Employer, the
Administrators may delegate specific responsibilities among themselves, including the
authority to execute documents unless the Sponsoring Employer revokes such delegation. The
Sponsoring Employer and Trustee will be notified in writing of any such delegation of
responsibilities, and the Trustee thereafter may rely upon any documents executed by the
appropriate Administrator.
	 
	8.5	 	Correcting Administrative Errors. The Administrator will take such steps as the Administrator considers necessary and
appropriate to remedy administrative or operational errors, including, but not be limited to,
the following: (a) any action pursuant to (1) any Employee Plans Compliance Resolution System
(EPCRS) that is issued by the Internal Revenue Service, (2) any asset management or fiduciary
conduct error correction program that is issued by the Department of Labor, or (3) any other
correction program issued by any Department or governmental agency; (b) a reallocation of Plan
assets; (c) an adjustment in the amount of future payments to any Participant, Beneficiary or
Alternate Payee; and (d) the institution, prosecution, and/or settlement of legal actions to
recover benefit payments made in error or on the basis of incorrect or incomplete information.
	 
	8.6	 	Promulgating Notices and Procedures. The Sponsoring Employer and Administrator are given the power and responsibility
to promulgate certain written notices, policies and/or procedures under the terms of the Plan
and disseminate them to Participants, and the Administrator may satisfy such responsibility by
the preparation of any such notice, policy and/or procedure in a written form which can be
published and communicated to a Participant in one or more of the following ways: (a) by
distribution in hard copy; (b) through distribution of a summary plan description or summary
of
material modifications thereto which sets forth the policy or procedure with respect to a
right, benefit or feature offered under the Plan; (c) by e-mail, either to a Participant’s
personal e-mail address or his or her Employer-maintained e-mail address; and (d) by
publication on a web-site accessible by the Participant, provided the Participant is notified
of said web-site publication. Any notice, policy and/or procedure provided through an
electronic medium will only be valid if the electronic medium which is used is reasonably




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	 	 	designed to provide the notice, policy and/or procedure in a manner no less understandable to
the Participant than a written document, and under such medium, at the time the notice, policy
and/or procedure is provided, the Employee may request and receive the notice, policy and/or
procedure on a written paper document at no charge.






	8.7	 	Employment of Agents and Counsel. The Administrator may appoint such actuaries, accountants, custodians, counsel, agents,
consultants, service companies and other persons deemed necessary or desirable in connection
with the administration and operation of the Plan. Any person or company so appointed will
exercise no discretionary authority over investments or the disposition of Trust assets, and
their services and duties will be ministerial only and will be to provide the Plan with those
things required by law or by the terms of the Plan without in any way exercising any fiduciary
authority or responsibility under the Plan. The duties of a third party Administrator will be
to safe-keep the individual records for all Participants and to prepare all required actuarial
services and disclosure forms under the supervision of the Administrator and any fiduciaries
of the Plan. It is expressly stated that the third party Administrator’s services are only
ministerial in nature and that under no circumstances will such third party Administrator (a)
exercise any discretionary authority whatsoever over Plan Participants, Plan investments, or
Plan benefits; or (b) be given any authority or discretion concerning the management and
operation of the Plan that would cause them to become fiduciaries of the Plan.
	 
	8.8	 	Compensation and Expenses. The Administrator may receive such compensation as agreed upon between the Sponsoring
Employer and the Administrator, provided that any person who already receives full-time pay
from the Employer may not receive any fees from the Plan for services to the Plan as
Administrator or in any other capacity, except for reimbursement for expenses actually and
properly incurred. The Sponsoring Employer will pay all “settlor” expenses (as described in
Department of Labor Advisory Opinion 2001-01-A) incurred by the Administrator, the Committee
or any party that is appointed under Section 8.7 in the performance of their duties. The
Sponsoring Employer may pay, but is not required to pay, all “non-settlor” expenses incurred
by the Administrator, the Committee, or any party that is appointed under Section 8.7 in the
performance of their duties. Any “non-settlor” expenses incurred by the Administrator, the
Committee or any party that is appointed under Section 8.7 that the Sponsoring Employer elects
not to pay will be reimbursed from Trust Fund assets. Any expenses paid from the Trust Fund
will be charged to each Adopting Employer in the ratio that each Adopting Employer’s
Participants’ Accounts bears to the total of all the Participants’ Accounts maintained by this
Plan, or in any other reasonable method elected by the Administrator.
	 
	8.9	 	Claims Procedures. The claims procedure required under ERISA §503 and Department of Labor Regulations
thereunder is set forth in an administrative policy regarding claims procedures that is
promulgated under Section 8.6 by the Administrator. Such administrative policy will be the
sole and exclusive remedy for an Employee, Participant or Beneficiary (“Claimant”) to make a
claim for benefits under the Plan.
	 
	8.10	 	Qualified Domestic Relations Orders. A Qualified Domestic Relations Order, or QDRO, is a signed domestic relations order
issued by a State or a Commonwealth court which creates, recognizes or assigns to an alternate
payee(s) the right to receive all or part of a Participant’s Plan benefit. An alternate payee
is a Spouse, former Spouse, child, or other dependent of a Participant who is treated as a
Beneficiary under the Plan as a result of the QDRO. The Administrator will determine if a
domestic relations order received by the Plan is a Qualified Domestic Relations Order based on
an administrative policy regarding Qualified Domestic Relations Orders that is promulgated
under Section 8.6 by the Administrator.
	 
	8.11	 	Appointment of Investment Manager. The Administrator, with the consent of the Sponsoring Employer, may appoint an
Investment Manager to manage and control the investment of all or any portion of the assets of
the Trust. Each Investment Manager must be a person (other than the Trustee) who (a) has the
power to manage, acquire, or dispose of Plan assets, (b) is an investment adviser, a bank, or
an insurance company as described in ERISA §3(38)(B), and (c) acknowledges fiduciary
responsibility to the Plan in writing. The Administrator will enter into an agreement with an
Investment Manager that specifies the duties and compensation of the Investment Manager and
specifies any other terms and conditions under which the Investment Manager will be retained.
The Trustee is not liable for any act or omission of an Investment Manager and is not liable
for following an Investment Manager’s advice with respect to duties delegated by the
Administrator to the Investment Manager. The Administrator can determine the portion of the
Plan’s assets to be invested by a designated Investment Manager and can establish investment
objectives and guidelines for the Investment Manager to follow.




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Article 9

Trustee Provisions





	9.1	 	Appointment, Resignation, Removal and Succession. The Trust established under the Plan will have one or more individual Trustees, a
corporate Trustee, or any combination thereof, appointed as follows:






	 	(a)	 	Appointment. Each Trustee will be appointed and will serve until a
successor has been named or until such Trustee’s resignation, death, incapacity, or
removal, in which event the Sponsoring Employer will name a successor Trustee. The term
Trustee will include the original and any successor Trustees.
	 
	 	(b)	 	Resignation. A Trustee may resign at any time by giving written notice to
the Sponsoring Employer, unless such notice is waived by the Sponsoring Employer. The
Sponsoring Employer may remove a Trustee at any time by giving such Trustee written
notice. Such removal may be with or without cause. Unless waived in writing by the
Sponsor, if any Trustee who is an Employee or an elected or appointed official resigns or
terminates employment with the Sponsoring Employer or an Adopting Employer, such
termination will constitute an immediate resignation as a Trustee of the Plan.
	 
	 	(c)	 	Successor Trustee. Each successor Trustee will succeed to the title to the
Trust by accepting the appointment in writing and by filing such written acceptance with
the former Trustee and the Sponsoring Employer. The former Trustee, upon receipt of such
acceptance, will execute all documents and perform all acts necessary to vest the Trust
Fund’s title of record in any successor Trustee. No successor Trustee will be personally
liable for any act or failure to act of any predecessor Trustee.
	 
	 	(d)	 	Merger. If any corporate Trustee, before or after qualification, changes
its name, consolidates or merges with another corporation, or otherwise reorganizes, any
resulting corporation that succeeds to the retirement plan trustee business of such
Trustee will become a Trustee hereunder in lieu of such corporate Trustee.






	9.2	 	Powers and Duties of the Trustee. The specific powers and duties of the Trustee will be governed under the terms of a
separate trust instrument entered between the Sponsoring Employer and the Trustee.




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Article 10

Adopting Employer Provisions





	10.1	 	Plan Contributions. Unless otherwise agreed to by the parties, or unless otherwise required by law, no
Employer will have any obligation to make contributions to this Plan for or on behalf of the
Employees of any other Employer. If an Employee is employed by more than one Employer, any
contributions made on his or her behalf will be prorated between those Employers on the basis
of the Compensation that the Employee received from each Employer. If any Employer is unable
to make a contribution for any Plan Year, any Employer which is an Affiliated Employer of such
Employer may make an additional contribution to the Plan on behalf of any Employee of the
non-contributing Employer.
	 
	10.2	 	Plan Amendments. Any amendment to this Plan that is adopted by the Sponsoring Employer, at any time,
will be deemed to be accepted by any Adopting Employer, unless such Adopting Employer is not
an Affiliated Employer and elects not to adopt a discretionary Plan amendment.
	 
	10.3	 	Plan Expenses. Any expenses paid from the Trust will be charged to each Adopting Employer in the
ratio that each Adopting Employer’s Participants’ Accounts bears to the total of all the
Participants’ Accounts maintained by this Plan, or in any other reasonable method elected by
the Administrator.
	 
	10.4	 	Employee Transfers. An Employee’s transfer to or from an Employer or Adopting Employer will not affect his
or her Participant’s Account balance and total Years of Service and Periods of Service.
	 
	10.5	 	Multiple Employer Provisions Under Code §413(c). Notwithstanding any other provision in the Plan, unless the Plan is a collectively
bargained plan under Regulation §1.413-1(a), the following provisions apply to any Adopting
Employer that is not also an Affiliated Employer:






	 	(a)	 	Instances of Separate Employer Testing. Employees of any such Adopting
Employer will be treated separately for testing under Code §401(a)(4), §401(k), §401(m)
and, if the Sponsoring Employer and the Adopting Employer do not share Employees, Code
§416. Furthermore, the terms of Code §410(b) will be applied separately on an
employer-by-employer basis by the Sponsoring Employer (and the Adopting Employers which
are part of the Affiliated Group which includes the Sponsoring Employer) and each
Adopting Employer that is not an Affiliated Employer of the Sponsoring Employer, taking
into account the generally applicable rules described in Code §401(a)(5), §414(b) and
§414(c).
	 
	 	(b)	 	Instances of Single Employer Testing. Employees of the Adopting Employer
will be treated as part of a single Employer plan for purposes of eligibility to
participate under Article 2 and under the provisions of Code §410(a). Furthermore, the
terms of Code §411 relating to Vesting will be applied as if all Employees of all such
Adopting Employers and the Sponsoring Employer were employed by a single Employer, except
that the rules regarding Breaks in Service will be applied under the Department of Labor
Regulations.
	 
	 	(c)	 	Common Provisions. Contributions made by any Adopting Employer will be
held in a common Trust Fund with contributions made by the Sponsoring Employer, and all
such contributions will be available to pay the benefits of any Participant (or
Beneficiary thereof) who is an Employee of the Sponsoring Employer or any such Adopting
Employer. The failure of the Sponsoring Employer or an Adopting Employer to satisfy the
qualification requirements under the provisions of Code §401(a), as modified by the
provisions of Code §413(c), will result in the disqualification of the Plan for all such
Employers maintaining the Plan.






	10.6	 	Termination of Adoption. An Adopting Employer may terminate its adoption of the Plan by delivering written
notice to the Sponsoring Employer, to the Administrator and to the Trustee. Upon termination
of adoption by an Adopting Employer, the Adopting Employer may request a transfer of Trust
Fund assets attributable to its Employees to a successor qualified retirement plan maintained
by the Adopting Employer or its successor. If such request is not made by the Adopting
Employer, or if the Administrator refuses to make the transfer because in its opinion a
transfer would operate to the detriment of any Participant, would jeopardize the continued
qualification of the Plan, or
would not comply with any requirements of the Code, Regulations, or rules promulgated by the
Department of Treasury or Internal Revenue Service, then termination of adoption by an
Adopting Employer as described herein will not be considered a distributable event;
distribution of a Participant’s Account of an Employee of the Adopting Employer will be made
in accordance with the provisions of Article 5 upon the death, retirement, Disability, or the
Termination of Employment from the Adopting Employer or former Adopting Employer, as if
termination of adoption by the Adopting Employer had not occurred.




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Article 11

Amendment, Termination and Merger





	11.1	 	Plan Amendment. The Plan can be amended at any time in accordance with the following provisions:






	 	(a)	 	Amendment by the Volume Submitter Sponsor. Subject to the requirements and
limitations set forth in subparagraphs (1), (2) and (3) below, and in paragraphs (d) and
(e) below, the Volume Submitter Sponsor can amend any part of the Plan without the
consent of the Sponsoring Employer or any Adopting Employer, nor does the Sponsoring
Employer have to reexecute the Plan. The Volume Submitter Sponsor will provide each
Sponsoring Employer a copy of the amended Plan (either by providing an amendment,
substitute or additional pages, or by providing a restated Plan). For purposes of
amendments made by the Volume Submitter Sponsor, the Sponsoring Employer can override any
such amendment by executing another amendment by the end of the applicable remedial
amendment period that applies to such amendment.






	 	(1)	 	Scope of Amendments. Any such amendments by the Volume Submitter
Sponsor will amend the plan on behalf of all adopting Employers, including those
Employers who have adopted the plan prior to this amendment, for changes in the Code,
regulations, revenue rulings, other statements published by the Internal Revenue
Service, including model, sample or other required good faith amendments, but only if
their adoption will not cause the Plan to be individually designed, and for
corrections of prior approved plans. These amendments will be applied to all
Employers who have adopted the Plan.
	 
	 	(2)	 	Cessation of Amendment Authority. The Volume Submitter Sponsor
will no longer have the authority to amend the Plan on behalf of any adopting
Employer as of either (1) the date the Internal Revenue Service requires the Employer
to file Form 5300 as an individually designed plan as a result of an Employer
amendment to the Plan to incorporate a type of plan not allowable in the Volume
Submitter program, as described in Revenue Procedure 2005-16, or (2) as of the date
the Plan is otherwise considered an individually designed plan due to the nature and
extent of the amendments. If the Employer is required to obtain a determination
letter for any reason in order to maintain reliance on the advisory letter, the
Volume Submitter Sponsor’s authority to amend the Plan on behalf of the adopting
Employer is conditioned on the Plan receiving a favorable determination letter.
	 
	 	(3)	 	Recordkeeping. The Volume Submitter Sponsor will maintain, or have
maintained on its behalf, a record of the Employers that have adopted the Plan, and
will make reasonable and diligent efforts to ensure that adopting Employers have
actually received and are aware of all Plan amendments and that such Employers adopt
new documents when necessary. This amendment supersedes other provisions of the Plan
to the extent those other provisions are inconsistent with this amendment.






	 	(b)	 	Amendment by the Sponsoring Employer. Subject to the requirements and
limitations set forth in paragraphs (c) and (d) below, the Sponsoring Employer will have
the right at any time to amend the Plan in the following manner without affecting the
Plan’s status as a Volume Submitter Plan: (1) the Sponsoring Employer may change any
optional selections under the Plan; (2) the Sponsoring Employer may add additional
language where authorized under the Plan including language necessary to satisfy Code
§415 or Code §416 due to the aggregation of multiple plans; (3) the Sponsoring Employer
may change the addendums to the Plan from time to time without having to reexecute of the
Plan; (4) the Sponsoring Employer may adopt any model, sample and/or “good faith”
amendments promulgated/suggested by the IRS, for which the IRS has provided guidance that
their adoption will not cause the Plan to be treated as an individually designed plan;
(5) the Sponsoring Employer may adopt any amendments that it deems necessary to resolve
qualification failures under any Employee Plans Compliance Resolution System (EPCRS) that
is promulgated by the Internal Revenue Service; and (6) the Sponsoring Employer may adopt
an amendment to cure a coverage or nondiscrimination testing failure, as permitted under
applicable Regulations. The Sponsoring Employer may also amend the Plan at any time for
any other reason. The ability to amend the Plan as authorized under this Section applies
only to the Sponsoring Employer that executes the signature page of the Plan. Any
amendment to the Plan by the Sponsoring Employer under this Section applies to any
Affiliated Employer that participates under the Plan as an Adopting Employer. The
Sponsoring Employer’s amendment of the Plan from one type of defined contribution plan
(e.g., a money purchase plan) into another type of defined contribution plan (e.g., a
profit sharing plan) will not result in a partial termination or any other event that
would require full Vesting of some or all Plan Participants.




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	 	(c)	 	Manner of Amendment. Any amendments by the Volume Submitter Sponsor or
Sponsoring Employer can be made by (1) substituting pages with the new elections (or new
addendum) and executing an “Amendment By Page Substitution” and attaching it as part of
the Plan; (2) executing an “Amendment By Section Replication” in which the section or
sections (or addendum or addendums) to be changed are reproduced with the new elections
indicated, and attaching it as part of the Plan; (3) executing a properly worded
corporate resolution and attaching it as part of the Plan; or (4) creating and
distributing a Safe Harbor Notice (other than a contingent Safe Harbor Notice as
described in Section 3.16(d)) to Safe Harbor Participants.
	 
	 	(d)	 	General Requirements. An amendment by the Volume Submitter Sponsor or the
Sponsoring Employer must be in writing. However, no such amendment or modification (1)
can increase the responsibilities of the Trustee or the Administrator without their
written consent; (2) can deprive any Participant or Beneficiary of the benefits to which
he or she is entitled from the Plan; (3) can result in a decrease in the amount of any
Participant’s Account except as may be permitted under the terms of Code §412(c)(8) if
applicable; or (4) can, except as otherwise provided, permit any part of the Trust Fund
(other than as required to pay taxes and administration expenses) to be used for or
diverted to purposes other than the exclusive benefit of the Participants or their
Beneficiaries, or cause or permit any portion of the Trust Fund to revert to or become
the property of the Employer. In addition, unless the provisions of paragraph (e) below
are satisfied, no amendment to the Plan will have the effect of eliminating or
restricting the ability of a Participant or other payee to receive payment of his or her
Account balance or benefit entitlement from the Plan under a particular optional form of
benefit provided under the Plan.
	 
	 	(e)	 	Elimination of Optional Forms of Benefit. No Plan amendment will be
effective to eliminate or restrict an optional form of benefit. The preceding sentence
will not apply to a Plan amendment that eliminates or restricts the ability of a
Participant to receive payment of the Participant’s Account balance under a particular
optional form of benefit (including annuities and installments) if the amendment provides
a single-sum distribution form that is otherwise identical to the optional form of
benefit being eliminated or restricted. For this purpose, a single-sum distribution form
is otherwise identical only if the single-sum distribution form is identical in all
respects to the eliminated or restricted optional form of benefit (or would be identical
except that it provides greater rights to the Participant) except with respect to the
timing of payments after commencement. With respect to the modification or elimination of
an optional form of benefit under which benefits are distributable to a Participant in a
medium other than cash, the following provisions will apply:






	 	(1)	 	Eliminating Distributions Payable in Marketable Securities (Other Than
Employer Securities). If the Plan includes an optional form of benefit under
which benefits are distributed in the form of Marketable Securities (other than
Securities of the Employer), then that optional form of benefit may be eliminated by
a Plan amendment (or the Plan’s amendment and restatement) by substituting cash for
the Marketable Securities as the medium of distribution.
	 
	 	(2)	 	Amendments to Specify Medium of Distribution. If the Plan includes
an optional form of benefit under which benefits are distributable to a Participant
in a medium other than cash, then the Plan may be amended (or may be amended and
restated) to limit the types of property in which distributions may be made to the
Participant to the types of property specified in the amendment (or the amendment and
restatement). For this purpose, the types of property specified in the amendment (or
the amendment and restatement) must include all types of property (other than
marketable securities that are not securities of the Employer) that are allocated to
the Participant’s Account on the effective date of the amendment (or the amendment
and restatement) and in which the Participant would be able to receive a distribution
immediately before the effective date of the amendment (or the amendment and
restatement) if a distributable event occurred. In addition, a Plan amendment (or the
Plan’s amendment and restatement) may provide that the Participant’s right to receive
a distribution in the form of specified types of property is limited to the property
allocated to the Participant’s Account at the time of distribution that consists of
property of those specified types.
	 
	 	(3)	 	In-Kind Distributions After Plan Termination. If the Plan includes
an optional form of benefit under which benefits are distributed in specified
property, then that optional form of benefit may be modified for distributions after
Plan termination by substituting cash for the specified property as the medium of
distribution to the extent that, on Plan termination, an Employee has the opportunity
to receive the optional form of benefit in the form of the specified property.
However, if the Employer that maintains the terminating Plan also maintains another
plan that provides an optional form of benefit under which benefits are distributed
in the specified property, then this exception is not available.




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	 	(4)	 	Definitions of Marketable Securities and Securities of the
Employer. For purposes of this paragraph, the term “Marketable Securities” means
marketable securities as defined in Code §731(c)(2). The term “Securities of the
Employer” means securities of the Employer as defined in Code §402(e)(4)(E)(ii).






	 	(f)	 	Certain Corrective Amendments. To satisfy the minimum coverage
requirements of Code §410(b), the nondiscriminatory amount requirement of Regulation
§1.401(a)(4)-1(b)(2), or the nondiscriminatory plan amendment requirement of Regulation
§1.401(a)(4)-1(b)(4), a corrective amendment may retroactively increase allocations for
Employees who benefited under the Plan during the Plan Year being corrected, or may grant
allocations to Employees who did not benefit under the Plan during the Plan Year being
corrected. To satisfy the nondiscriminatory current availability requirement of
Regulation §1.401(a)(4)-4(b) for benefits, rights or features, a corrective amendment may
make a benefit, right or feature available to Employees to whom it was previously not
available. A corrective amendment will not be effective prior to the date of adoption
unless it satisfies the applicable requirements of Regulation §1.401(a)(4)-11(g)(3)(ii)
through (vii), including the requirement that, in order to be effective for the preceding
Plan Year, such amendment must be adopted by the 15th day of the 10th month after the
close of the preceding Plan Year.






	11.2	 	Termination By Sponsoring Employer. The Sponsoring Employer at any time can terminate the Plan and Trust in whole or in
part in accordance with the following provisions:






	 	(a)	 	Termination of Plan. The Sponsoring Employer can terminate the Plan and
Trust by filing written notice thereof with the Administrator and Trustee and by
completely discontinuing contributions to the Plan. Upon any such termination, the Trust
Fund will continue to be administered until complete distribution has been made to the
Participants and other payees, which distribution must occur as soon as administratively
feasible after the termination of the Plan, and must be made in accordance with the
provisions of Article 5 of the Plan, including Section 5.6 where applicable. However, the
Administrator may elect not to distribute the Accounts of Participants and other payees
upon termination of the Plan but instead to transfer the entire Trust Fund assets and
liabilities attributable to this terminated Plan to another qualified plan maintained by
the Employer or its successor.
	 
	 	(b)	 	Vesting Requirement Upon Complete Termination or Upon Discontinuance of
Contributions. Upon a complete termination of the Plan or upon a complete
discontinuance of contributions under the Plan, the following Participants will have a
100% Vested Interest in their Participants’ Accounts: (1) Participants who are affected
by such complete termination or, if applicable, such complete discontinuance of
contributions; (2) Participants who have not Terminated Employment with the Employer; and
(3) Participants who have Terminated Employment with the Employer and who (A) have not
incurred five consecutive Breaks in Service and (B) have not received a complete
distribution of their Vested Aggregate Account balance.
	 
	 	(c)	 	Vesting Requirement on Partial Termination. Upon partial termination of
the Plan, only a Participant who has Terminated Employment because of the event which
causes the partial termination but who has not incurred five consecutive Breaks in
Service will have a 100% Vested Interest in his or her unpaid Participant’s Account as of
the date of partial termination.
	 
	 	(d)	 	Discontinuance of Contributions. The Sponsoring Employer may at any time
completely discontinue contributions to the Plan but continue the Plan in operation in
all other respects, in which event the Trust Fund will continue to be administered until
eventual full distribution of all benefits has been made to the Participants and other
payees in accordance with Article 5 after their Termination of Employment for any reason.
Discontinuance of contributions without an additional notice of termination from the
Sponsoring Employer to the Administrator and Trustee will not constitute a termination of
the Plan.






	11.3	 	Merger or Consolidation. This Plan may not be merged or consolidated with, nor may any of its assets or
liabilities be transferred to, any other plan, unless the benefits payable to each Participant
if the Plan was terminated immediately after such action would be equal to or greater than the
benefits to which such Participant would have been entitled if this Plan had been terminated
immediately before such action. For purposes of this Section, the term “Code §410(b)(6)(C)
Transaction” means an asset or stock acquisition, merger, or similar transaction involving a
change in the employer of the employees of a business. If the Employer acquires another
company in a Code §410(b)(6)(C) Transaction, employees of the acquired company may be excluded
from this Plan regardless of the
provisions of Section 2.1 during the period beginning on the date of the transaction and
ending on the last day of the Plan Year that begins after the date of the Code §410(b)(6)(C)
Transaction.




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	11.4	 	Plan-to-Plan Elective Transfers. To permit Participants to consolidate all qualified defined contribution plan accounts
into a single plan for investments, distributions, loans and other administrative purposes,
the Sponsoring Employer may permit Participants to transfer amounts to and from this Plan
under the following rules:






	 	(a)	 	Transfers to This Plan. If permitted by the Sponsoring Employer and
subject to the provisions of this Section, then a Participant may request that such
Participant’s entire account balance (both the vested interest and the non-vested
interest) in another qualified defined contribution plan maintained by the Sponsoring
Employer (or an Adopting Employer) be transferred in cash or in property into this Plan.
Such transferred amount into this Plan will be considered a Transfer Contribution.
	 
	 	(b)	 	Transfers From This Plan. If permitted by the Sponsoring Employer, then a
Participant may request that such Participant’s Account balance (both the Vested Interest
and the Non-Vested Interest) in this Plan be transferred in cash or in property into
another qualified defined contribution plan of the Sponsoring Employer (or an Adopting
Employer).
	 
	 	(c)	 	Limitation on Transfers. A transfer into or from this Plan pursuant to
this Section is only permitted if the Participant is ineligible to actively participate
at the same time in the Sponsoring Employer’s (or an Adopting Employer’s) plan from which
the transfer is being made (the transferor plan) and the Sponsoring Employer’s (or an
Adopting Employer’s) plan into which the transfer is being made (the transferee plan).
	 
	 	(d)	 	Plan Accounts. Transfer Contributions from another qualified defined
contribution plan into this Plan will maintain their identity as Elective Deferrals,
Matching Contributions, Voluntary Employee Contributions, Non-Safe Harbor Non-Elective
Contributions, Qualified Non-Elective Contributions, Qualified Matching Contributions,
Safe Harbor 401(k) Contributions, and Rollover Contributions in this Plan. Such Transfer
Contributions will be accounted for separately in this Plan.
	 
	 	(e)	 	Protected Benefits. Any Transfer Contributions into this Plan that have
benefits, rights and features (including, but not limited to, certain optional forms of
benefit payments, such as annuities) required to be preserved by Code §411(d)(6) will
continue to be preserved and protected in this Plan to the extent required by Code
§411(d)(6). The Sponsoring Employer (or an Adopting Employer) reserves the right to
eliminate any benefits, rights and features (including, but not limited to, certain
optional forms of benefit payments) of any Transfer Contributions into this Plan, to the
extent permitted under Code §411(d)(6).
	 
	 	(f)	 	Vesting. Transfer Contributions into this Plan must Vest at least as
rapidly under this Plan (the transferee plan) as they would Vest under the plan from
which the transfer is being made (the transferor plan), as if the transfer had not
occurred. If this Plan is the transferee plan and the Vesting schedule under the
transferor plan for a specific source of transferred amounts (Matching Contributions or
Non-Safe Harbor Non-Elective Contributions) is less favorable than the Vesting schedule
that applies to the same component (Matching Contributions or Non-Safe Harbor
Non-Elective Contributions) in this Plan, the Administrator may apply, in a
non-discriminatory manner, the Vesting schedule of this Plan’s component (Matching
Contributions or Non-Safe Harbor Non-Elective Contributions) to that portion of the
Transfer Contributions.
	 
	 	(g)	 	Transfer Requests Subject to Administrative Approval. Any transfer into or
from this Plan must be made in cash or property acceptable to the Trustee. Any benefits,
rights and features of a Transfer Contribution required to be protected by Code
§411(d)(6) must be acceptable to and approved by the Administrator.
	 
	 	(h)	 	Application of this Section. The provisions of this Section will apply to
all Transfer Contributions, regardless of whether a Transfer Contribution was an elective
transfer initiated by the Participant.




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Article 12

Miscellaneous Provisions





	12.1	 	No Contract of Employment. Except as otherwise provided by law, neither the establishment of this Plan, any
modification hereto, the creation of any fund or account, nor the payment of any benefits,
will be construed as giving any Participant or other person any legal or equitable rights
against the Employer, any officer or Employee thereof, or the Trustee, except as herein
provided. Further, under no circumstances will the terms of employment of any Participant be
modified or otherwise affected by this Plan.
	 
	12.2	 	Title to Assets. No Participant or Beneficiary will have any right to, or any interest in, any assets of
the Trust upon separation from service with the Employer, Affiliated Employer, or Adopting
Employer, except as otherwise provided by the terms of the Plan.
	 
	12.3	 	Qualified Military Service. Notwithstanding any provision of this Plan to the contrary, contributions, benefits and
service credit with respect to qualified military service will be provided in accordance with
Code §414(u).
	 
	12.4	 	Fiduciaries and Bonding. Fiduciaries (including Named Fiduciaries) of the Plan will have only those powers and
duties specifically given to them under the terms of this Plan. Every fiduciary other than a
bank, an insurance company, or a fiduciary of an Employer which has no common-law employees,
will be bonded in an amount not less than 10% of the amount of funds under the fiduciary’s
supervision, but the bond will not be less than $1,000 or more than $500,000 or such other
amount that may be required by law. The bond will provide protection to the Plan against any
loss for acts of fraud or dishonesty by a fiduciary acting alone or in concert with others.
The cost of such bond will be an expense of either the Employer or the Trust, at the election
of the Sponsoring Employer.
	 
	12.5	 	Severability of Provisions. If any Plan provision is held invalid or unenforceable, such invalidity or
unenforceability will not affect any other provision of this Plan, and this Plan will be
construed and enforced as if such provision had not been included.
	 
	12.6	 	Interpretation of the Plan and Trust. The following provisions apply to the interpretation of the Plan and Trust:






	 	(a)	 	Names. Names that are used in this Plan should be used consistently in any
appendixes, policies, procedures, and/or any other documents which are legally binding
upon the Plan. However, in documents that are not considered to be part of this Plan,
appendixes, policies or procedures that are not legally binding upon the Plan; and that
may be are distributed to individuals (such as the SPDs, SMMs, notices, and election
forms), names may use plain English terms. These terms include, but are not limited to,
the following: in the case of a profit sharing plan, the Non-Elective Contribution may be
called the Employer contribution or the profit sharing contribution. Similarly, the
Non-Elective Contribution Account may be called the Participant’s Account or the
Participant’s profit sharing account.
	 
	 	(b)	 	Gender. Words that are used in the masculine gender may be construed as
though they are also used in the feminine or neuter gender, where applicable (and vice
versa).
	 
	 	(c)	 	Number. Words that are used in the singular form may be construed as
though they are also used in the plural form, where applicable (and vice versa).
	 
	 	(d)	 	Headings and Subheadings. Headings and subheadings are inserted for
convenience of reference. Headings and subheadings constitute no part of this Plan and
are not to be considered in its construction or interpretation.
	 
	 	(e)	 	Single Subparagraphs. This Plan may have Sections and/or paragraphs that
contain a single subparagraph; such document construction will not constitute a
Scrivener’s error.
	 
	 	(f)	 	Application of Law. This Plan will be construed and interpreted in
accordance with the Code and ERISA. However, if the Plan and/or Trust needs to be
construed and interpreted according to a State’s or Commonwealth’s laws (to the extent
that such laws are not preempted by the provisions of the Code and ERISA), then this Plan
and/or Trust will be construed and interpreted according to the laws of the State or
Commonwealth in which the Sponsoring Employer maintains its principal place of business.




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	 	(g)	 	Effective Dates. This Plan contains various effective dates, which
include, but are not limited to: (1) the effective date of the Plan and, if applicable,
the effective date of the amended and restated Plan; and (2) the effective dates of
legally required or permitted provisions.






	12.7	 	Costs of Legal Action. Unless otherwise prohibited by law, either the Sponsoring Employer or the Trust, in the
sole discretion of the Sponsoring Employer, will reimburse the Trustee and/or the
Administrator for all costs, attorneys fees and other expenses associated with any claim, suit
or proceeding.
	 
	12.8	 	Qualified Plan Status. This Plan and Trust are intended to be a qualified retirement plan under the provisions
of Code §401(a) and §501(a).
	 
	12.9	 	Mailing of Notices to Administrator, Employer or Trustee. Notices, documents or forms required to be given to or filed with the Administrator,
the Employer or the Committee will be either hand delivered or mailed by first class mail,
postage prepaid, to the Committee or the Employer, at the Employer’s principal place of
business. Any notices, documents or forms required to be given to or filed with the Trustee
will be either be hand delivered or mailed by first class mail, postage prepaid, to the
Trustee at its principal place of business.
	 
	12.10	 	Participant Notices and Waivers of Notices. Whenever written notice is required to be given under the terms of this Plan, such
notice will be deemed to be given on the date that such written notice is either hand
delivered to the recipient or deposited at a United States Postal Service Station, first class
mail, postage paid. Notice may be waived by any party entitled to receive written notice
concerning any matter under the terms of this Plan.
	 
	12.11	 	No Duplication of Benefits. There will be no duplication of benefits under the Plan because of employment by more
than one participating Employer.
	 
	12.12	 	Evidence Furnished Conclusive. Anyone required to give evidence under the terms of the Plan may do so by certificate,
affidavit, document or other information that the person to act in reliance may consider
pertinent, reliable and genuine, and to have been signed, made or presented by the proper
party or parties. The fiduciaries of the Plan will be fully protected in acting and relying
upon any evidence described under this Section.
	 
	12.13	 	Release of Claims. Any payment to a Participant or Beneficiary, his or her legal representative, or to a
guardian or committee appointed for such Participant or Beneficiary, will, to the extent
thereof, be in full satisfaction of all claims hereunder against the Administrator and the
Trustee, either of whom may require such Participant, legal representative, Beneficiary,
guardian or committee, as a condition precedent to such payment, to execute a receipt and
release thereof in such form as determined by the Administrator or the Trustee.
	 
	12.14	 	Discontinued Contributions. Any Participants’ Accounts (or sub-Accounts) that were established for specific
contributions to the Plan which are (or were) subsequently discontinued will continue to be
administered in accordance with the Vesting and Forfeiture provisions of the Plan in effect on
the date that such contributions are (or were) discontinued.
	 
	12.15	 	Multiple Copies of Plan And/or Trust. This Plan may be executed in any number of counterparts, each of which will be deemed
an original, but all of which will constitute one and the same Agreement and will be binding
on the respective successors and assigns of the Employer and all other parties.
	 
	12.16	 	Limitation of Liability and Indemnification. In addition to and in furtherance of any other limitations provided in the Plan, and to
the extent permitted by applicable law, the Employer will indemnify and hold harmless its
board of directors (collectively and individually), if any, the Administrative/Advisory
Committee (collectively and individually), if any, and its officers, Employees, and agents
against and with respect to any and all expenses, losses, liabilities, costs, and claims,
including legal fees to defend against such liabilities and claims, arising out of their
good-faith discharge of responsibilities under or incident to the Plan, excepting only
expenses and liabilities resulting from willful misconduct. This indemnity will not preclude
such further indemnities as may be available under insurance purchased by the Employer or as
may be provided by the Employer under any by-law, agreement, vote of shareholders or
disinterested directors, or otherwise, as such indemnities are permitted under state law.
Payments with respect to any indemnity and payment of expenses or fees under this Section will
be made only from assets of the Employer, and will not be made directly or indirectly from
assets of the Trust.




-96-









 












	12.17	 	Written Elections and Forms. Whenever the word “written” or the words “in writing” are used, such words will include
any method of communication permitted by the DOL with respect to such documentation. In a
similar manner, the word “form” will include any other method of election permitted under
current law. Such alternative methods will include, but not be limited to, electronic modes to
the extent permitted by law.
	 
	12.18	 	Assignment and Alienation of Benefits. Except as may otherwise be permitted under Code §401(a)(13)(C), as may otherwise be
permitted under a Qualified Domestic Relations Order as provided in Section 8.10, or as may
otherwise be permitted under Section 7.1 relating to loans to Participants, no right or claim
to, or interest in, any part of the Trust Fund, or any payment therefrom, will be assignable,
transferable, or subject to sale, mortgage, pledge, hypothecation, commutation, anticipation,
garnishment, attachment, execution, or levy of any kind, and the Trustees will not recognize
any attempt to assign, transfer, sell, mortgage, pledge, hypothecate, commute, or anticipate
the same, except to the extent required by law.
	 
	12.19	 	Exclusive Benefit Rule. All contributions made by the Employer or an Affiliated Employer to the Trust Fund will
be used for the exclusive benefit of the Participants who are Employees of the Employer or
Affiliated Employer and for their Beneficiaries and will not be used for nor diverted to any
other purpose except the payment of the costs of maintaining the Plan. All contributions made
by an Adopting Employer who is not an Affiliated Employer will be used for the exclusive
benefit of the Participants who are Employees of the Adopting Employer and for their
Beneficiaries and will not be used for nor diverted to any other purpose except the payment of
the Adopting Employers’ proportionate costs of maintaining the Plan.
	 
	12.20	 	Prior Provisions of Amended and Restated Plans. If the Plan’s effective date is prior to the first day of the first Plan Year beginning
on or after January 1, 2002 and this is an amendment and restatement of the Plan, then the
provisions of the prior Plan document in effect prior to the first day of the first Plan Year
beginning on or after January 1, 2002 will apply to this Plan; however, if any provisions of
the prior Plan document contradict any provisions of this Plan, then the provisions of this
Plan will apply.
	 
	12.21	 	Dual and Multiple Trusts. Plan assets may be held in two or more separate trusts, or in trust and by an insurance
company or by a trust and under a custodial agreement. Plan assets may also be held in a
common trust.
	 
	12.22	 	Loss of Volume Submitter Status. Notwithstanding any provision in this Plan to the contrary, if this Plan is provided to
the Sponsoring Employer by a third party (e.g., a law firm, an actuarial firm, an insurance
company, an accounting firm, a third party administration firm, etc.) rather than by the
Volume Submitter Sponsor directly, and (a) such third party subsequently terminates its
business relationship with the Volume Submitter Sponsor for any reason, (b) the Volume
Submitter Sponsor subsequently terminates its business relationship with such third party for
any reason, or (c) the Sponsoring Employer subsequently terminates its business relationship
with such third party, then this Plan will no longer be considered a pre-approved volume
submitter plan, but rather will be considered an individually designed plan, and the Volume
Submitter Sponsor will have no further responsibilities or obligations with respect to the
Plan or the Sponsoring Employer.




-97-









 










This Plan has been executed by the Sponsoring Employer as of the day, month and year set
forth on page 1 of this Agreement.




	 	 	 	 	 
	 	The Men’s Wearhouse, Inc.

 	 
	 	By  	/s/ KIRK WARREN
 	 
	 
	 	Date JUNE 30, 2011 	 
	 	 	 	 
	 




-98-











 





Post-EGTRRA “Good Faith” Amendment for Defined Contribution Plans




Election Form



Plan Name The Men’s Wearhouse, Inc. 401(k) Savings Plan





All references to the “Amendment” are to the Post-EGTRRA “Good Faith” Amendment for Defined
Contribution Plans attached to this Election Form. Adoption of the Amendment is accomplished by the
execution of this Election Form. This Election Form supersedes any other election form executed
prior to the date of this Election Form to the extent such prior election form (or any election
made therein) conflicts with the provisions of this Election Form.



Section 1. Post-EGTRRA Elections Initially Effective in 2006 or Earlier 





	 	1.1	o 	 Revised Definition of Financial Hardship. Section 1.5 of
the Amendment regarding hardship distributions to a
Participant’s Primary Beneficiary is adopted effective _____________
	 
	 	1.2	o 	 Distributions to a Qualified Reservist. Section 1.6 of the
Amendment regarding distributions to a Qualified
Reservist is adopted effective ______________
	 
	 	1.3	o 	 Hurricane Provisions. Section 1.7 of the Amendment
regarding distributions made from the Plan on account of Hurricanes Katrina, Rita, or Wilma is
adopted, subject to the following elections: (check any that apply)






	 	 	o 	The special financial hardship distribution provision in Section 1.7(c) of the Amendment applies
	 
	 	 	o 	The Participant loan provision in Section 1.7(d) of the Amendment applies
	 
	 	 	o 	The re-contribution of Qualified Hurricane Distributions provision in Section 1.7(e) of the Amendment applies
	 
	 	 	o 	The re-contribution of Qualified Distributions provision in Section 1.7(f) of the Amendment applies






	 	1.4	o 	 Revocation of Prior Amendment On Account Of Heinz. Section 1.8 of the Amendment regarding the revocation
of an Original Amendment on account of the Heinz decision is adopted effective __________________. The
Original Amendment is hereby revoked retroactively with respect to: (check one)






	 	 	o 	All accrued benefits, which are allocations that were accrued as of the Applicable Amendment
Date and allocations that were accrued after the Applicable Amendment Date.
	 
	 	 	o 	Only accrued benefits as of the Applicable Amendment Date, which are allocations that were accrued
as of the Applicable Amendment Date. Allocations accrued after the Applicable Amendment Date will
continue to be subject to the restrictions on the form or timing of distributions as set forth in
the Original Amendment.






	 	1.5	o 	 Exclusion of 403(b) Participants. Section 1.9 of the
Amendment regarding the exclusion from the Plan of certain Employees who participate in a
403(b) plan sponsored by the tax-exempt Employer is adopted.





Section 2. Post-EGTRRA Elections Initially Effective in 2007 





	 	2.1	o 	 Direct Rollovers and the $500 Threshold. Pursuant to
Section 2.2 of the Amendment, if a Distributee elects to have only a portion of an Eligible
Rollover Distribution paid to an Eligible Retirement Plan in a Direct Rollover, then that
portion must equal or exceed $500.






	 	2.2	 	Code §415 Limitations under the Final §415 Regulations.






	 	(a)	 	Code §415(c)(3) Compensation for Top Heavy Allocation Purposes and Key Employee
Determinations.
	 
	 	 	 	Pursuant to Section 2.5(c)(2) of the Amendment, an Employee’s Code §415(c)(3)
Compensation which is used to determine any Top Heavy Minimum Allocations and whether an
Employee is also a Key Employee is: (check one)






	 	 	o 	Form W-2 Compensation
	 
	 	 	þ 	Code §3401 Compensation
	 
	 	 	o 	Safe Harbor Code §415 Compensation
	 
	 	 	o 	Statutory Code §415 Compensation





			
	 	 	 
	Post-EGTRRA “Good Faith” Amendment Election Form
	 	Page 1 of 6






 









 







	 	(b)	 	Code §415(c)(3) Compensation for Code §415 Limitation Determinations.
Pursuant to Section 2.5(c)(2) of the Amendment, an Employee’s Code §415(c)(3)
Compensation used to determine the Employee’s Annual Addition limitation under Article 6 of
the Basic Plan is based on the selection below.






	 	 	o 	Form W-2 Compensation
	 
	 	 	þ 	Code §3401 Compensation
	 
	 	 	o 	Safe Harbor Code §415 Compensation
	 
	 	 	o 	Statutory Code §415 Compensation






	 	(c)	 	Code §415(c)(3) Compensation for Highly Compensated Employee Determinations and Other
Statutory Purposes. Pursuant to Section 2.5(c)(2) of the Amendment, an Employee’s Code
§415(c)(3) Compensation used to determine whether the Employee is also a Highly Compensated
Employee, and for other statutory purposes that do not appear elsewhere in this Adoption
Agreement, is based on the selection below.






	 	 	o 	Form W-2 Compensation
	 
	 	 	þ 	Code §3401 Compensation
	 
	 	 	o 	Safe Harbor
Code §415 Compensation
	 
	 	 	o 	Statutory
Code §415 Compensation






	 	(d)	o  	Compensation Earned in Limitation Year but Paid in Next Limitation
Year. Section 2.5(c)(2)(E) of the Amendment defines Code §415(c)(3) Compensation for a
Limitation Year to include any amounts earned during that Limitation Year but not paid until
the next Limitation Year.
	 
	 	(e)	Post-Severance Compensation. For all Plan purposes, Section 2.5(c)(6) of the
Amendment defines Post-Severance Compensation as including regular pay after Termination of
Employment during the timeframe permitted by the Regulations, plus any/all of the items
selected below: (check all that apply)






	 	 	o 	Leave cash-outs and deferred compensation under Section 2.5(c)(6)(B) of
the Amendment
	 
	 	 	o 	Imputed compensation when the Participant becomes disabled under
Section 2.5(c)(6)(C) of the Amendment
	 
	 	 	o 	Continuation of compensation while in qualified military service under
Section 2.5(c)(6)(D) of the Amendment






	 	2.2	o 	 Vesting of Non-Safe Harbor Non-Elective Contributions.
Pursuant to Section 2.6 of the Amendment and PPA §904, the Vesting Schedule that applies
to Non-Safe Harbor Non-Elective Contribution Accounts is effective as of the first day of the
first Plan Year beginning after December 31, 2006, subject to the following elections:






	 	(a)	 	Participants to Whom the Post-2006 Vesting Schedule Relates. Under Section
2.6(a) of the Amendment, the Post-2006 Vesting Schedule applies to the Non-Safe Harbor
Non-Elective Contribution Account of:






	 	 	o 	 Any Participant who completes an Hour of Service in any Plan Year
beginning after December 31, 2006.
	 
	 	 	o 	 Any Participant (regardless of whether he or she has Terminated
Employment) who has a Non-Safe Harbor Non-Elective Contribution Account balance in any Plan
Year beginning after December 31, 2006 and whose Non-Safe Harbor Non-Elective Contribution
Account has not become subject to the Forfeiture provisions of the Plan prior to the first
day of the first Plan Year beginning after December 31, 2006.






	 	(b)	 	Account Balances to Which the Post-2006 Vesting Schedule Relates. Under
Section 2.6(b) of the Amendment, the Post-2006 Vesting Schedule applies to:






	 	 	o 	 The entire Non-Safe Harbor Non-Elective Contribution Account.
	 
	 	 	o 	 The portion of the Non-Safe Harbor Non-Elective Contribution
Account to which is allocated Non-Safe Harbor Non-Elective Contributions, Forfeitures,
and earnings for Plan Years beginning after December 31, 2006 (and subsequent earnings
attributable to such allocations). The portion of the Non-Safe Harbor NonElective
Contribution Account to which was allocated Non-Safe Harbor Non-Elective
Contributions, Forfeitures, and earnings for Plan Years beginning prior to January 1,
2007 (and subsequent earnings attributable to such allocations) will remain subject to
the Pre-2007 Vesting Schedule, without regard to this Section or the Vesting schedule
enumerated in the current Plan document that applies to Non-Safe Harbor Non-Elective
Contribution Accounts.





			
	 	 	 
	Post-EGTRRA “Good Faith” Amendment Election Form
	 	Page 2 of 6






 









 







	 	(c)	 	Pre-2007 Vesting Schedule. Under Section 2.6(0(3) of the Amendment, the
Pre-2007 Vesting Schedule was:






	 	 	o 	7 Year Graded
	 
	 	 	o 	5 Year Cliff
	 
	 	 	o 	 The schedule set forth below





	 	 	 

	          1 Year / Period of Service

	 	                     %
	          2 Years / Periods of Service

	 	                     %
	          3 Years / Periods of Service

	 	                     % (must be at least 20% unless 100% Vesting occurs at 5 years)
	          4 Years / Periods of Service

	 	                     % (must be at least 40% unless 100% Vesting occurs at 5 years)
	          5 Years / Periods of Service

	 	                     % (must be at least 60%)
	          6 Years / Periods of Service

	 	                     % (must be at least 80%)
	          7 Years / Periods of Service

	 	                     % (must be 100%)







	 	2.3	o 	 Money Purchase or Target Benefit Plan In-Service Distributions.
Section 2.10 of the Amendment regarding in-service distributions from a money purchase
or target benefit plan is adopted effective. A Participant who has reached Age (cannot be
earlier than Age 62) and who has not yet Terminated Employment may elect to receive a
distribution of his or her Vested Account Balance.
	 
	 	2.4	þ 	 Qualified Default Investment Alternative. Section 2.11 of
the Amendment (as amended by Section 4.3 of the
Amendment) regarding a Qualified Default Investment Arrangement is adopted effective
Dec 24, 2007. 
	 
	 	2.5	o 	 Modification of Normal Retirement Age. Section 2.12 of the
Amendment regarding the definition of Normal
Retirement Age is adopted effective                     ,subject to the following provisions:






	 	(a)	 	Normal Retirement Age Amended in Plan or this Amendment. Under
Section 2.12(a) of the Amendment, the definition of Normal Retirement Age is amended
as of the effective date above to be:






	 	 	o  	The definition selected in the Adoption Agreement.
	 
	 	 	o  	Age __ (max. 65)






	 	 	o  	Or the ________ (maximum. 5th) anniversary of becoming a Participant in the Plan, if later.
	 
	 	 	o  	Or the date the Participant is credited with at least _______ Years of Service/Periods of Service, if later,
but in no event later than the later of Age 65 or the 5th anniversary of becoming a Participant.
	 
	 	 	o  	Or __________, but in no event later than the later of Age 65
or the 5th anniversary of becoming a Participant in the Plan.






	 	(b)	o  	Plan Provisions for Code §411(a)(10) and/or Code §411(d)(6)
Compliance. Under Section 2.12(c) of the
Amendment, the Plan is amended by the following additional provisions: __________________





Section 3. Post-EGTRRA Elections Initially Effective in 2008





	 	3.1	o 	 Qualified Automatic Contribution Arrangement. Section 3.4 of the Amendment regarding a Qualified Automatic Contribution Arrangement is adopted effective _____________, subject to the following:






	 	(a)	 	QACA Contribution Requirement. Pursuant to Section 3.4(a) of the
Amendment, the Employer will make the following QACA Contribution to the following
Participants: (check one)






	 	 	o  	QACA Non-Elective Contribution. The Employer will make a
QACA Non-Elective Contribution equal to 3% (or such higher percentage as may be
elected by the Employer by resolution) of Compensation for the Plan Year. Such QACA
Non-Elective Contribution will be made on behalf of: (check one)






	 	 	o  	Any Participant in the Elective Deferral component of the Plan who is a NHCE, regardless of
whether he or she makes Elective Deferrals or Voluntary Employee Contributions.
	 
	 	 	o  	Any Participant in the Elective Deferral component of the Plan, regardless of whether such
Participant makes Elective Deferrals or Voluntary Employee Contributions.





			
	 	 	 
	Post-EGTRRA “Good Faith” Amendment Election Form
	 	Page 3 of 6






 









 







	 	 	o  	The following Participants ________________________________________________________

(Any Participant in the Elective Deferral component of the Plan who is a NHCE must be
included regardless of whether he or she makes Elective Deferrals or Voluntary Employee
Contributions)






	 	 	o  	QACA “Basic” Matching Contributions. The Employer will make a QACA
Matching Contribution equal to the sum of (1) 100% of the Participant’s Elective Deferrals
that do not exceed 1% of Compensation for the Allocation Period, plus (2) 50% of the
Participant’s Elective Deferrals that exceed 1% of Compensation for the Allocation Period
but do not exceed 6% percent of Compensation for the Allocation Period. Such QACA Matching
Contribution will be made on behalf of: (check one)






	 	 	o  	Any Participant in the Elective Deferral component of the Plan who is a NHCE and on whose
behalf Elective Deferrals are made to the Plan.
	 
	 	 	o  	Any Participant in the Elective Deferral component of the Plan and on whose behalf Elective
Deferrals are made to the Plan.
	 
	 	 	o  	The following Participants _______________________________________________________

(Any Participant in the Elective Deferral component of the Plan who is a NHCE must be included
regardless of whether he or she makes Elective Deferrals or Voluntary Employee Contributions)






	 	 	o  	QACA “Enhanced” Matching Contributions. The Employer will make a
QACA Matching Contribution equal to (1) 100% of the Participant’s Elective Deferrals that do
not exceed __ % (must be at least 1% but not greater than 6%) of Compensation for the
Allocation Period; plus, if applicable, (2) __ % of Elective Deferrals that exceed __ % (must
be at least 1% but not greater than 6%) of Compensation but do not exceed __ % (must be
greater than 1% but not greater than 6%) of Compensation for the Allocation Period; plus, if
applicable, (3) __ % of Elective Deferrals that exceed __ % (must be greater than 1% but not
greater than 6%) of Compensation but do not exceed __ % (must be greater than 1% but not
greater than 6%) of Compensation for the Allocation Period.
	 
	 	 	 	Note: If applicable, the first blank in (2) and the first blank in (3)
must be completed so that, at any rate of elective deferrals, the QACA “Enhanced” Matching
Contribution is at least equal to the Matching Contribution receivable if the Employer was
making the QACA “Basic” Matching Contributions, but the rate of Matching Contributions cannot
increase as Elective Deferrals increase.
	 
	 	 	 	Such QACA Matching Contribution will be made on behalf of:






	 	 	o  	Any Participant in the Elective Deferral component of the Plan who is a NHCE and on whose
behalf Elective Deferrals are made to the Plan.
	 
	 	 	o  	Any Participant in the Elective Deferral component of the Plan and on whose behalf Elective
Deferrals are made to the Plan.
	 
	 	 	o  	The following Participants ___________________________________________________
	 
	 	 	  	(Any Participant in the Elective Deferral component of the Plan who is a NHCE must be included
regardless of whether he or she makes Elective Deferrals or Voluntary Employee Contributions)






	 	(b)	 	Plan to Which QACA Contribution Will Be Made. Pursuant to Section 3.4(a)(2) of
the Amendment, the QACA Contribution will be made to: (check one)






	 	 	o  	This Plan
	 
	 	 	o  	The following plan, so long as that other plan meets the requirements of Code §401(k)(12)(F) and the
Regulations thereunder ____________________________________________________________






	 	(c)	 	Compensation for QACA Contribution Purposes. Pursuant to Section 3.4(a)(5) of
the Amendment, a Participant’s Compensation for QACA Contribution purposes is determined by
the provisions selected below:






	 	(1)	 	Compensation is defined as: (check one)






	 	 	o 	 Form W -2 Compensation
	 
	 	 	o 	  Code §3401 Compensation
	 
	 	 	o 	  Safe Harbor Code §415 Compensation





			
	 	 	 
	Post-EGTRRA “Good Faith” Amendment Election Form
	 	Page 4 of 6






 









 







	 	(2)	 	Elective contributions under Code §125, §132(f)(4), §401(k), §402(h), §403(b), §457(b)
and §414(h)(2) will: (check one)






	 	 	o 	  Be included as Compensation
	 
	 	 	o 	  Not be included as Compensation






	 	(3)	 	The Compensation measuring period is the: (check one)






	 	 	o 	  Plan Year
	 
	 	 	o 	  Fiscal Year ending on or
within the Plan Year
	 
	 	 	o 	  Calendar year ending on or
within the Plan Year






	 	(4)	o 	 The following categories will not be counted as Compensation:
(check all that apply)






	 	 	o  	A) Compensation received prior
to becoming a Participant
	 
	 	 	o  	B) Compensation received
while an ineligible Employee
	 
	 	 	o  	C) All items in Regulation §1.414(s)-I(c)(3) (i.e.,
expense allowances,jringe benefit, etc.)
	 
	 	 	o  	D) Post-Severance Compensation 1
	 
	 	 	o  	E) Deemed 125 Compensation 1
	 
	 	 	o  	F) Bonuses 1
	 
	 	 	o  	G) Overtime 1
	 
	 	 	o  	H) Commissions 1
	 
	 	 	o  	I) Other (describe) 1                                   






 




			
	1	 	If checked, the Plan’s definition of compensation may fail to satisfy the safe harbor
requirements unless such compensation is excluded only with respect to HCEs under
paragraph (5) below.





	 	(5)	o 	The amounts excluded under (4)(D) — (I) are only excluded with
respect to: (check all that apply)






	 	 	o  	Highly Compensated Employees
	 
	 	 	o  	Other (cannot be a class that only includes NHCEs)






	 	(d)	 	Vesting of QACA Contribution Account. Pursuant to Section 3.4(b) of the
Amendment, a Participant’s Vested Interest in his or her QACA Contribution Account will be
determined by the provisions selected below:






	 	(1)	The Vesting schedule for the QACA Contribution Account is: (check one)






	 	 	o 	  100% full and immediate
	 
	 	 	o 	   2-year cliff Vesting (1
year/0%; 2 years/100%)
	 
	 	 	o 	  The
Vesting schedule set forth below:





	 	 	 	 	 

	1 Year/Period of Service
	 	 	________ 	%
	2 Years/Periods of Service
	 	 	100	%







	 	(2)	o 	 Service Excluded for Vesting. All Service with the Employer is
counted in determining a Participant’s Vested Interest in the QACA Contribution Account except the
following: (check all that apply)






	 	 	o  	Service before age 18
	 
	 	 	o  	Service before the Employer maintained this Plan or a predecessor plan





			
	 	 	 
	Post-EGTRRA “Good Faith” Amendment Election Form
	 	Page 5 of 6






 









 







	 	(e)	 	Usage of Forfeitures of QACA Contribution Account. If the Vesting schedule
selected in Section 3.1(d) above is other than 100% full and immediate, then pursuant to
Section 3A(c) of the Amendment, Forfeitures that are not used for the purposes
described in Section 3 A( c) of the Amendment will be: (check one)






	 		o 	  Used to reduce any, or any combination of, Employer contributions, as determined by the Administrator
	 
	 		o 	 Added to any, or any combination of, Employer contributions, as determined by the Administrator






	 	3.2	o 	 Eligible Automatic Contribution Arrangement. Section 3.5 of the Amendment regarding an Eligible Automatic
Contribution Arrangement is adopted effective _________________
	 
	 	3.3	o 	 Participant’s Election for Permissible Withdrawal. Section 3.6 of the Amendment regarding a Participant’s
election for a Permissible Withdrawal is adopted effective __________________. (The date cannot be earlier
than the effective date of either Section 3.1 or Section 3.2 above)





Signature of the Sponsoring Employer




	 	 	 	 	 	 	 

	By

	 	/s/ KIRK WARREN
	 	Title: VP Benefits & Administration
	 	 
	 

	 	 

	 	 	 	 
	 	 	Print Name Kirk Warren	 	Date June 30, 2011	 	 






			
	 	 	 
	Post-EGTRRA “Good Faith” Amendment Election Form
	 	Page 6 of 6







 











 





HEART Amendment

For Compliance With the HEART Act of 2008 and Notice 2010-15




Plan Name The Men’s Wearhouse, Inc. 401(k) Savings Plan



This HEART Amendment (the “Amendment”) is intended as good faith compliance with the HEART
Act of 2008 and with guidance related thereto issued by the Internal Revenue Service in Notice
2010-15. This Amendment supersedes any conflicting provisions of the Plan set forth above, any
administrative policy promulgated by the Plan, and/or any previously-adopted “good faith” amendment
of the same subject matter, as applicable. This is a “good faith” amendment, is not part of the
pre-approved Plan to which it is attached, and while it has not been reviewed by the Internal
Revenue Service, its adoption does not, pursuant to Revenue Procedure 2007-44, affect the status of
reliance upon the pre-approved provisions of the Plan.




Section 1. Definitions





	1.1	 	Deemed Deferrals. The term Deemed Deferrals means, to the extent the Employer elects to make contributions
to the Plan, the amount of Post-Tax or Pre-Tax Employee Contributions a Participant is deemed
to have made during his or her period of Qualified Military Service. Deemed Deferrals will be
equal to the lesser of (a) the average actual Post-Tax or Pre-Tax Employee Contributions he
or she made to the Plan during the 12-month period immediately preceding his or her Qualified
Military Service; or (b) if the Participant had less than 12 months of service with the
Employer before commencing Qualified Military Service, the average Post-Tax or Pre-Tax
Employee Contributions the Participant made during his or her actual length of continuous
service with the Employer.
	 
	1.2	 	Differential Wage Payment. The term Differential Wage Payments means any
payment as defined in Code
§3401(h) which is made by the Employer for a remuneration period after December 31, 2008
which (a) is made to an individual with respect to any period during which an individual is
performing service in the uniformed services (as defined in chapter 43 of title 38, United
States Code) while on active duty for a period of more than 30 days; and (b) represents all
or a portion of the remuneration such individual would have received from the Employer if the
individual was performing services for the Employer.
	 
	1.3	 	Post-Tax or Pre-Tax Employee Contributions. The term Post-Tax or Pre-Tax
Employee Contributions
means any Elective Deferrals and/or Employee Voluntary Contributions permitted under the
terms of the Plan which a Participant performing Qualified Military Service would be entitled
to make if the Participant was performing services for the Employer.
	 
	1.4	 	Qualified Military Service. The term Qualified Military Service means any
service in the uniformed services
(as defined in chapter 43 of title 38, United States Code) by any individual if such
individual is entitled to USERRA Reemployment Rights under such chapter with respect to such
service.
	 
	1.5	 	Qualified Reservist. The term Qualified Reservist means an individual who is a
member of a reserve
component (as defined in §101 of title 37, United States Code) and who is ordered or called
to active duty after September 11, 2001 either for a period in excess of 179 days or for an
indefinite period.
	 
	1.6	 	Qualified Reservist Distribution. The term Qualified Reservist Distribution
means a distribution of Elective
Deferrals made from a 401(k) plan to a Qualified Reservist made during the period beginning
on the date of the call-up order and ending at the close of the active duty period.
	 
	1.7	 	USERRA Reemployment Rights. The term USERRA Reemployment Rights means the
rights and benefits to
which an individual covered under USERRA is entitled upon his or her return from Qualified
Military Service. An individual will not be entitled to USERRA Reemployment Rights if (a)
such individual did not provide advance notice of his or her military service to the
Employer; or (b) such individual had more than five years of cumulative Qualified Military
Service measured from his or her date of hire to his or her date of return to employment with
the Employer.





			
	 	 	 
	HEART Act Amendment
	 	Page 1 of 4






 









 






Section 2. Death Benefits





	2.1	 	Deemed Reemployment Date. A Participant who dies on or after January 1, 2007 while performing
Qualified Military Service will be deemed (a) to have resumed employment with the Employer as
of the day preceding the date of his or her death (the “Deemed Reemployment Date” for purposes
of this Section); and (b) to have Terminated Employment on the date of his or her death.
	 
	2.2	 	Additional Benefits. To the extent the Plan provides for (a) accelerated
vesting upon a Participant’s death, (b)
ancillary life insurance benefits, and (c) any other benefits that are contingent upon the
Participant’s death, then an individual described in Section 2.1 will be provided with such
benefits. Such benefits must be provided to all such similarly-situated individuals in a
uniform, non-discriminatory manner.
	 
	2.3	 	Employer Contributions. An individual described in Section 2.1 will not receive any additional contributions
under the terms of the Plan unless this box o is checked, in which event any such additional contributions
will be provided effective                                          (must be on or after January 1, 2007) on a reasonably
equivalent basis to all such similarly situated individuals in accordance with the following
provisions:






	 	(a)	 	If the Plan is a money purchase plan or a profit sharing plan without a 401(k)
feature, then the Employer will make a contribution on behalf of such individual which is
equal to the contribution that would have otherwise been made under the terms of the Plan
on such individual’s behalf had he or she actually been reemployed by the Employer on the
date of such individual’s death, based on the Compensation such individual would have
received from the Employer during his or her period of Qualified Military Service.
	 
	 	(b)	 	If the Plan is a profit sharing plan with a 401(k) feature, then (1) the Employer
will make a Non-Elective Contribution on behalf of such individual which is equal to the
Non-Elective Contribution that would have otherwise been made under the terms of the Plan
on such individual’s behalf had he or she actually been reemployed by the Employer on the
date of such individual’s death, based on the Compensation such individual would have
received from the Employer during his or her period of Qualified Military Service; and
(2) the Employer will make a Matching Contribution on behalf of such individual which is
equal to the Matching Contribution that would have otherwise been made under the terms of
the Plan on such individual’s behalf had he or she actually been reemployed by the
Employer on the date of such individual’s death, based on such individual’s Deemed
Deferrals.






	2.4	 	Vesting Service. An individual who is described in Section 2.1 will, upon his
or her Deemed Reemployment
Date, receive credit for Vesting purposes with respect to his or her period of Qualified
Military Service.





Section 3. Disability Benefits 





	3.1	 	Deemed Reemployment Date. If this
box o is
checked, then effective                                         
(must be on
or after January 1, 2007), a Participant who suffers a Disability while performing Qualified
Military Service will be deemed (a) to have resumed employment with the Employer as of the day
preceding the date of his or her Disability (the “Deemed Reemployment Date” for purposes of
this Section); and (b) to have Terminated Employment on the date of his or her Disability.
	 
	3.2	 	Employer Contributions. An individual described in Section 3.1 will not receive any additional contributions
under the terms of the Plan unless this box o is checked, in which event any such additional contributions
will be provided effective                                          (must be on or after January 1, 2007) on a reasonably
equivalent basis to all such similarly situated individuals in accordance with the following
provisions:






	 	(a)	 	If the Plan is a money purchase plan or a profit sharing plan without a 401(k)
feature, then the Employer will make a contribution on behalf of such individual which is
equal to the contribution that would have otherwise been made under the terms of the Plan
on such individual’s behalf had he or she actually been employed by the Employer on the
date of such individual’s Disability, based on the Compensation such individual would
have received from the Employer during his or her period of Qualified Military Service.





			
	 	 	 
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	 	Page 2 of 4






 









 







	 	(b)	 	If the Plan is a profit sharing plan with a 401(k) feature, then (1) the Employer
will make a Non-Elective Contribution on behalf of such individual which is equal to the
Non-Elective Contribution that would have otherwise been made under the terms of the
Plan on such individual’s behalf had he or she actually been employed by the Employer on
the date of such individual’s Disability, based on the Compensation such individual
would have received from the Employer during his or her period of Qualified Military
Service; and (2) the Employer will make a Matching Contribution on behalf of such
individual which is equal to the Matching Contribution that would have otherwise been
made under the terms of the Plan on such individual’s behalf had he or she actually been
employed by the Employer on the date of such individual’s Disability, based on such
individual’s Deemed Deferrals. Alternatively, if this box o
is checked and a Participant is permitted to make Post-Tax or Pre-Tax
Employee Contributions for periods of Qualified Military Service, then the Matching
Contribution will be based on the actual Post-Tax or Pre-Tax Employee Contributions made
to the Plan by the Participant.






	3.3	 	Vesting Service. An individual described in Section 3.1 will not be entitled to credit for Vesting purposes with
respect to the period of Qualified Military Service unless this
box o is
checked, in which event such Vesting
credit will be applied to all similarly-situated individuals in a uniform, non-discriminatory manner.





Section 4. Differential Wage Payments





	4.1	 	Employee Status. Effective January 1, 2009, an individual receiving Differential Wage Payments from the
Employer will be treated as an Employee of the Employer making such Differential Wage
Payments, except as otherwise provided under Section 5 below.
	 
	4.2	 	Compensation. The term Compensation as used in the Plan will not include any
amounts paid by the Employer as a Differential Wage Payment, and the Plan’s definition of
Compensation will not fail to satisfy Code §414(s) merely because such payments are excluded
from the Plan’s definition of Compensation. Notwithstanding the foregoing, if this box
o is checked, the Employer elects to treat Differential
Wage Payments as Compensation for Plan purposes then effective                      (must be on or after January
1, 2009) (but only to the extent the payments do not exceed the amount the
individual would have received had he or she continued to perform services for the Employer).
Selection of this option does not preclude treatment of any payments which may have been made
to Participants as Compensation under the Plan during a prior period of military leave.
	 
	4.3	 	Code §415(c)(3) Compensation. Effective January 1,2009, the term Code §415(c)(3) Compensation as used in the Plan will include any amounts paid by the
Employer as a Differential Wage Payment (but only to the extent the payments do not exceed the amount the individual would have received had he or she continued to
perform services for the Employer).





Section 5. Special Distribution Rules





	5.1	 	Qualified Reservist Distributions. If this box o is checked then Qualified Reservist Distributions may be
made from the Plan, effective                                          (must be on or after January 1, 2007), and all
references in the Plan restricting Qualified Reservist Distributions to individuals ordered or
called to active duty before December 31, 2007 are removed effective December 31,2007.
	 
	5.2	 	Active Duty Severance Distributions. If this
box o is
checked and the Plan is a profit sharing plan with a
401(k) feature, then effective                                          (must be on or after January 1, 2009), an individual
performing service in the uniformed services (as defined in chapter 43 of title 38, United
States Code) while on active duty for a period of more than 30 days will be treated as having
incurred a severance from employment under Code §401(k)(2)(B)(i)(I), and may elect a
distribution of some or all of his or her Elective Deferral accounts (including Roth Elective
Deferrals), subject to the following provisions:






	 	(a)	 	If a Participant receives a distribution pursuant to this Section 5.2, he or she
will be barred from making Elective Deferrals and/or Employee Contributions for a period
of 6 months after the distribution.





			
	 	 	 
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	 	(b)	 	An individual who is considered an Employee because he or she is receiving Differential
Wage Payments will still be treated as having incurred a severance from employment for
purposes of this Section 5.2.
	 
	 	(c)	 	The availability of such distribution shall not cause any Participant to be treated as having
incurred a severance from employment for any other purpose under the Plan or any other Code
section.
	 
	 	(d)	 	If a Participant who takes a distribution pursuant to this Section 5.2 is considered to have
Terminated Employment under the terms of the Plan, such individual is eligible for all
distribution options available upon Termination of Employment under the Plan, and not this
Section 5.2.
	 
	 	(e)	 	If a Participant is eligible to receive a Qualified Reservist Distribution and a distribution
under this Section 5.2, any distribution of some or all of his or her Elective Deferral
Accounts (including Roth Elective Deferrals) that meets the definition of a Qualified
Reservist Distribution will be treated as a Qualified Reservist Distribution rather than a
distribution under this Section 5.2.
	 
	 	(f)	 	Any distribution made pursuant to this Section 5.2 is an Eligible Rollover Distribution under
the terms of the Plan unless one of the exceptions (other than the exception for hardship
distributions under Code §401(k)(2)(B)(i)(IV)) listed under Code §402(c)(4) applies.
	 
	 	(g)	 	Nothing contained in this Section will affect a Participant’s right to take other in-service
distributions (including hardship distributions) to the extent he or she is eligible for such
distributions under the terms of the Plan.





Signature of the Sponsoring Employer




	 	 	 	 	 
	 	 	 
	By  	/s/ KIRK WARREN
 	 	Title: VP Benefits & Administration             
	 	Print Name          Kirk Warren
 	 	Date June 30, 2011 
	 



			
	 	 	 
	HEART Act Amendment
	 	Page 4 of 4






 









 






Diversification Requirements Amendment

For Compliance With the Final Regulations Under Code §401 (a)(35)




Plan Name The Men’s Wearhouse, Inc. 401(k) Savings Plan



This Diversification Requirements Amendment (the “Amendment”) is intended as good faith
compliance with the final regulations issued by the Internal Revenue Service under Code
§401(a)(35), and is effective for Plan Years beginning on or after January 1, 2011. This Amendment
supersedes any conflicting provisions of the Plan, any administrative policy promulgated by the
Plan, and/or any previous “good faith” amendment of the same subject matter (including any
Post-EGTRRA “Good Faith” Amendment for Defined Contribution Plans executed prior to, or
contemporaneously with, this Amendment), as applicable. This is a “good faith” amendment, is not
part of the preapproved Plan to which it is attached, and while it has not been reviewed by the
Internal Revenue Service, its adoption does not, pursuant to Revenue Procedure 2007 -44, affect
the status of reliance upon the pre-approved Plan.




Section 1. Definitions





	1.1	 	Applicable Defined Contribution Plan. The term Applicable Defined Contribution Plan means any defined
contribution plan, other than certain ESOPs, that holds Employer Securities that are Publicly
Traded, subject to (a) and (b) below.






	 	(a)	 	One-Participant Plan. A one-Participant retirement plan as defined in Code
§401(a)(35)(E)(iv) is not
treated as an Applicable Defined Contribution Plan.
	 
	 	(b)	 	Treatment of Certain Plans Holding Employer Securities That Are Not Publicly
Traded. A Plan holding Employer Securities that are not Publicly Traded is treated
as an Applicable Defined Contribution Plan if any Employer maintaining the Plan or any
member of a controlled group of corporations that includes an Employer maintaining the
Plan has issued a class of stock that is Publicly Traded unless (1) no Employer
maintaining the Plan (or a parent corporation with respect to such Employer) has issued
stock that is Publicly Traded; and (2) no Employer maintaining the Plan (or a parent
corporation with respect to such Employer) has issued any special class of stock which
grants to the holder or issuer particular rights, or bears particular risks for the
holder or issuer, with respect to any Employer maintaining the Plan (or any member of a
controlled group of corporations that includes such Employer) which has issued Publicly
Traded stock. For purposes of this paragraph, a controlled group of corporations is
defined under Code §1563(a) except that 50% is substituted for 80%.






	1.2	 	Applicable Individual. The term “Applicable Individual” means (a) a Participant; (b) an alternate payee who
has an Account under the Plan; or (c) a Beneficiary of a deceased Participant.
	 
	1.3	 	Employer Security. The term “Employer Security” means any employer security as defined under the
Employee Retirement Income Security Act (ERISA) §407(d)(1).
	 
	1.4	 	Publicly Traded. The term Publicly Traded means an Employer Security that is (a) traded on a national
securities exchange that is registered under §6 of the Securities Exchange Act of 1934; or
(b) the security is traded on a foreign national securities exchange that is officially
recognized, sanctioned, or supervised by a governmental authority and the security is deemed
by the SEC as having a “ready market.”
	 
	1.5	 	Stable Value or Similar Fund. The term Stable Value or Similar Fund means an
investment product or fund
designed to preserve or guarantee principal and provide a reasonable rate of return, while
providing liquidity for benefit distributions or transfers to other investment alternatives
(such as a product or fund described in Department of Labor Regulation
§2550.404c-5(e)(4)(iv)(A) or (v)(A)).





			
	 	 	 
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	 	Page 1 of 4






 









 






Section 2. General Diversification Requirements under Code §401 (a)(35)





	2.1	 	Diversification Rights. Applicable Defined Contribution Plans holding Employer Securities are subject to
the diversification requirements under Code §40I(a)(35) with respect to Elective Deferrals,
Rollover Contributions, Employee Contributions, and Employer contributions (other than
Elective Deferrals). All Applicable Defined Contribution Plans must also satisfy the
investment option requirements and must not apply any impermissible restrictions or conditions
on investments of Employer Securities.
	 
	2.2	 	Notice Requirement. The Administrator must furnish a notice to Applicable
Individuals not later than 30
days before the first date on which an Applicable Individual is eligible to exercise his or
her right to divest Employer Securities with respect to any type of contributions.





Section 3. Investment Option Requirements





	3.1	 	Investment Options. If the Plan is an Applicable Defined Contribution Plan, pursuant to written procedures
established and adopted by the Administrator, the Plan must offer Applicable Individuals at
least three (3) investment options, other than Employer Securities, to which Applicable
Individuals may direct the proceeds from the divestment of Employer Securities. Each
investment option will be diverse from the other investment options, and have materially
different risk and return characteristics.
	 
	3.2	 	Frequency. If the Plan is an Applicable Defined Contribution Plan, then
pursuant to written procedures
adopted by the Administrator, the Plan must allow Applicable Individuals to divest Employer
Securities and reinvest the proceeds at periodic, reasonable opportunities occurring no less
frequently than quarterly.





Section 4. Diversification Requirements





	4.1	 	Elective Deferral, Rollover and Employee Contributions. If the Plan is an Applicable Defined Contribution
Plan, and any portion of an Applicable Individual’s Account thereunder which is attributable
to Elective Deferrals, Rollover Contributions, and Employee Contributions is invested in
Employer Securities, then subject to Section 4.3 below, the Applicable Individual may elect to
divest those Employer Securities and reinvest an equivalent amount in other investment
options.
	 
	4.2	 	Diversification Requirements for Employer Contributions (Other than Elective
Deferrals). If the Plan is
an Applicable Defined Contribution Plan, an Applicable Individual who is (a) a Participant who
has completed at least three Years of Service if the Plan uses the Counting of Hours Method
(or, in the case of a Plan that uses the Elapsed Time Method, three I-Year Periods of
Service), (b) an alternate payee who has an Account under the Plan attributable to a
Participant who has completed at least three Years of Service (or three I-Year Periods of
Service, as applicable), or (c) a Beneficiary of a deceased Participant, has the right to
divest the portion of his or her Participant’s Account attributable to Employer contributions
(other than Elective Deferrals) which are invested in Employer Securities. The Plan may
provide the right to divest earlier than the time period noted in (a) and (b) above.
	 
	4.3	 	Diversification Amount.






	 	(a)	 	Employer Securities Acquired on or After January 1, 2007. To the extent
that all or a portion of a Participant’s Account attributable to Employer contributions
(other than a Participant’s Elective Deferral Account) consists of Employer Securities
that were acquired in a Plan Year beginning on or after January 1, 2007, the divestment
requirements will apply to the total amount of the Employer Securities acquired with such
Employer contributions.
	 
	 	(b)	 	Employer Securities Acquired Before January 1, 2007. To the extent that
all or a portion of a Participant’s Account attributable to Employer contributions (other
than a Participant’s Elective Deferral Account) consists of Employer Securities acquired
in a Plan Year beginning before January 1,2007, the divestment requirements only apply to
a portion of the Employer Securities acquired with such Employer contributions. Such
portion will be equal to at least 33% of such Employer Securities for the first Plan
Year, at least 66% for the second such Plan Year, and 100% for the third Plan Year.





			
	 	 	 
	Diversification Requirements Amendment
	 	Page 2 of 4






 









 







	 	(c)	 	Restrictions Applied Separately to Each Class of Employer Securities.
The special restrictions and conditions set forth in paragraphs (a) and (b) above
will be applied separately with respect to each class of Employer Securities held in an
Applicable Participant’s Participant Account. The special restrictions and conditions set
forth in paragraphs (a) and (b) above will not apply to the extent that an Applicable
Participant has attained age 55 or completed at least three Years of Service (or three
I-Year Periods of Service, as applicable) before the first Plan Year beginning after
December 31, 2005.





Section 5. Restrictions and Conditions on Investments in Employer Securities





	5.1	 	Impermissible Restrictions and Conditions. Subject to any conforming rules and procedures that may be
established by the Administrator, if the Plan is an Applicable Defined Contribution Plan, the
Plan may not impose direct or indirect restrictions or conditions with respect to the
investment of Employer Securities that are not imposed on the investment of other assets of
the Plan. A restriction or condition with respect to Employer Securities means (a) a
restriction on an Applicable Individual’s right to divest an investment in Employer
Securities that is not imposed on an investment that is not an Employer Security; or (b) a
benefit conditioned on the investment of Employer Securities.
	 
	5.2	 	Permissible Restrictions and Conditions. Subject to any conforming rules and
procedures that may be
established by the Administrator, if the Plan is an Applicable Defined Contribution Plan, the
Plan may impose restrictions or conditions with respect to the investment of Employer
Securities as follows:






	 	(a)	 	Securities Laws. The Plan may impose a restriction or condition on the
divestiture of Employer Securities that is either required in order to ensure compliance
with applicable securities laws or is reasonably designed to ensure compliance with
applicable securities laws.
	 
	 	(b)	 	Deferred Application of the Diversification Requirements. The Plan may
restrict the application of
the diversification requirements of Code §401(a)(35) for up to 90 days after the Plan
becomes an Applicable Defined Contribution Plan.
	 
	 	(c)	 	Indirect Investments in Employer Securities. If a fund that indirectly
holds Employer Securities fails to meet the requirement that the investment be
independent of the Employer (including a fund which no longer meets the percentage
limitation rule), the Plan will not fail to satisfy the requirements of Code §401(a)(35)
merely because it does not offer those rights for up to 90 days after the investment
fund is treated as holding Employer Securities.
	 
	 	(d)	 	Limitation on Investment in Employer Securities. The Plan may limit
the extent to which an Applicable Individual’s Account balance can be invested in
Employer Securities, provided the limitation applies without regard to a prior exercise
of rights to divest Employer Securities.
	 
	 	(e)	 	Trading Frequency. The Plan may impose reasonable restrictions on the
timing and number of investment elections that an Applicable Individual can make to
invest in Employer Securities, provided that the restrictions are designed to limit
short-term trading in the Employer Securities.
	 
	 	(f)	 	Imposition of Fees. The Plan may impose a reasonable fee for the divestment of
Employer Securities.
	 
	 	(g)	 	Stable Value or Similar Fund. The Plan may allow transfers to be made
into or out of Stable Value or Similar Funds more frequently than a fund invested in
Employer Securities (taking into account any restrictions or conditions imposed on the
other investment options under the Plan).
	 
	 	(h)	 	Transfer out of a Qualified Default Investment. The Plan may provide
for transfers out of a QDIA (within the meaning of Department of Labor Regulation
§2550A04c-5(e)) more frequently than a fund invested in Employer Securities.
	 
	 	(i)	 	Frozen Funds. The Plan may prohibit any further investment in Employer
Securities, including
prohibiting a Participant that divests Employer Securities from reinvesting in Employer
Securities, but only if the Plan does not permit additional contributions or other
investments to be invested in Employer Securities (other than the reinvestment of
dividends paid on the Employer Securities).





			
	 	 	 
	Diversification Requirements Amendment
	 	Page 3 of 4






 









 







	 	(j)	 	Tax Consequences. Any tax consequences are disregarded in determining
whether the Plan imposes an indirect restriction or condition on an Applicable
Individual’s right to divest Employer Securities. The Plan may restrict an Applicable
Individual from reinvestment of divested amounts in the same Employer Securities account
if it provides that the Applicable Individual may invest such divested amounts in
another Employer Securities account assuming the only relevant difference between the
Employer Securities accounts is the Code §402(e)(4) cost (or other basis) in the
respective shares.
	 
	 	(k)	 	Additional Restrictions or Conditions. The Plan may provide for such additional
restrictions or conditions
as permitted from time to time by the Commissioner of the Internal Revenue Service.





Section 6. Defined Contribution Plans or Investment Funds Not Treated as Holding Employer Securities





	6.1	 	Employer Securities Held Indirectly. Subject to Section 6.2 below, if the Plan is an Applicable Defined
Contribution Plan, the Plan will not be treated as holding Employer Securities to the extent
the Employer Securities are held indirectly as part of a broader fund that is (a) a regulated
investment company described in Code §851(a); (b) a common or collective trust fund or pooled
investment fund maintained by a bank or trust company supervised by a State or Federal agency;
(c) a pooled investment fund of an insurance company that is qualified to do business in a
State; (d) an investment fund managed by an investment manager within the meaning of ERISA
§3(38) for a multiemployer plan; (e) any other investment fund designated by the Commissioner
in Revenue Rulings, notices or other guidance published in the Internal Revenue Bulletin.
	 
	6.2	 	Additional Requirements. The investment in Employer Securities must be held in
a fund under which (a)
there are stated investment objectives of the fund; and (b) the investment is independent of
the Employer (or Employers) and any affiliate thereof. For purposes of this section, an
investment in Employer Securities in a fund is not considered to be independent of the
Employer (or Employers) and any affiliate thereof if the aggregate value of the Employer
Securities held in the fund is in excess of 10% of the total value of all of the fund’s
investments for the Plan Year. The determination of whether the value of Employer Securities
exceeds 10% of the total value of the fund’s investments for the Plan Year is made as of the
end of the preceding Plan Year. The determination can be based on the information in the
latest disclosure of the fund’s portfolio holdings that was filed with the Securities and
Exchange Commission in that preceding Plan Year.





Signature of the Sponsoring Employer




	 	 	 	 	 
	 	 	 
	By  	/s/ KIRK WARREN
 	 	Title: VP Benefits & Administration             
	 	Print Name Kirk Warren
 	 	Date June 30, 2011 
	 



			
	 	 	 
	Diversification Requirements Amendment
	 	Page 4 of 4






 









 






Post-EGTRRA “GOOD FAITH” AMENDMENT FOR




DEFINED CONTRIBUTION PLANS



(INCLUDING PENSION PROTECTION ACT TECHNICAL CORRECTIONS)



 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 

	Article 1	 	 	1	 
	Post-EGTRRA Provisions Initially Effective 2006 And Earlier	 	 	1	 
	1.1

	 	Bonding Requirements
	 	 	1	 
	1.2

	 	Service for Vesting Purposes When Previously Frozen Plan Resumes Allocations
	 	 	1	 
	1.3

	 	Eliminating Forms of Distribution
	 	 	2	 
	1.4

	 	Application of Code §411 (a) With Respect to Protected Benefits
	 	 	3	 
	1.5

	 	Financial Hardship Distributions
	 	 	3	 
	1.6

	 	Distribution to a Qualified Reservist
	 	 	4	 
	1.7

	 	Hurricane Provisions
	 	 	4	 
	1.8

	 	Retroactive Revocation of Prior Amendment on account of the Heinz Decision
	 	 	9	 
	1.9

	 	Certain Employees of Tax Exempt Entity Excluded From 401 (k) Plan or 401 (m) Plan
	 	 	10	 
	Article 2	 	 	10	 
	Post-EGTRRA Provisions Initially Effective 2007	 	 	10	 
	2.1

	 	Notice and Consent Requirements
	 	 	10	 
	2.2

	 	Direct Rollovers
	 	 	13	 
	2.3

	 	Qualified Domestic Relations Orders
	 	 	14	 
	2.4

	 	Determination Whether Partial Termination of the Plan Has Occurred
	 	 	14	 
	2.5

	 	Code §415 Limitations Under the Final Code §415 Regulations
	 	 	15	 
	2.6

	 	Vesting of Non-Safe Harbor Non-Elective Contribution Accounts
	 	 	22	 
	2.7

	 	Diversification Requirements
	 	 	24	 
	2.8

	 	Calculation of Gap Period Income for Excess Elective Deferrals
	 	 	25	 
	2.9

	 	Rollover by a Non-Spouse Designated Beneficiary
	 	 	25	 
	2.10

	 	Money Purchase or Target Benefit Plan In-Service Distributions
	 	 	26	 
	2.11

	 	Qualified Default Investment Alternative
	 	 	26	 
	2.12

	 	Modification to Normal Retirement Age
	 	 	28	 
	2.13

	 	Mid-Year Changes Permitted for Safe Harbor 401 (k) Plan
	 	 	29	 
	Article 3 	 	 	29	 
	Post-EGTRRA Provisions Initially Effective 2008	 	 	29	 
	3.1

	 	Elimination of Gap Period Income for Excess Contributions
	 	 	29	 
	3.2

	 	Elimination of Gap Period Income for Excess Aggregate Contributions
	 	 	29	 
	3.3

	 	Elimination of Gap Period Income for Excess Elective Deferrals
	 	 	29	 
	3.4

	 	Qualified Automatic Contribution Arrangement
	 	 	30	 
	3.5

	 	Eligible Automatic Contribution Arrangement
	 	 	33	 
	3.6

	 	Eligible Participant’s Election for Permissible Withdrawal
	 	 	34	 
	3.7

	 	Qualified Optional Survivor Annuity
	 	 	35	 







 











 





Introduction



This Post-EGTRRA “Good Faith” Amendment (the “Amendment”) is intended as good faith
compliance with various post-EGTRRA provisions, including the Pension Protection Act of 2006
(PPA), the PPA technical corrections provisions set forth in the Worker, Retiree and Employer
Recovery Act of 2008 (WRERA), and applicable Regulations.



The Amendment consists of this document (the Post-EGTRRA “Good Faith” Amendment) and the
Post-EGTRRA “Good Faith” Amendment Election Form (the “Election Form”) attached hereto. While each
Article of the Amendment is based upon the earliest effective year that a specific Section (or
specific paragraph of a Section) can apply to the Plan, the effective year of an Article is used
for reference purposes only. The actual effective date of a specific Section of this Amendment, a
specific paragraph in a Section of this Amendment, or a specific Section of the Election Form,
applies to the Plan and overrides any conflict with the effective year of an Article. Furthermore,
the rules of the Plan’s Section entitled “Interpretation of the Plan and Trust” apply to this
Amendment.



Except as may otherwise be provided in this Amendment, the terms of this Amendment supersede any
conflicting provisions of the Plan, any administrative policy promulgated by the Plan, the Plan’s
funding policy, and/or any previously-adopted “good faith” amendment of the same subject matter,
as applicable. If this Amendment establishes/memorializes an Automatic Contribution Arrangement,
then this Amendment supersedes any State (or Commonwealth) law that would directly or indirectly
prohibit or restrict the inclusion of an Automatic Contribution Arrangement in the Plan, pursuant
to ERISA §514(e)(I) and Department of Labor Regulation §2550A04c-5(t).



This Amendment is a “good faith” amendment to the Plan set forth on page 1 of the Election Form,
and while this Amendment has not been reviewed by the Internal Revenue Service, its adoption does
not, pursuant to Revenue Procedure 2007 -44, affect the status of reliance upon the pre-approved
terms of the Plan.




Article 1

Post-EGTRRA Provisions Initially Effective 2006 And Earlier





	 
	1.1	 	Bonding Requirements. Paragraph (a) below is
effective as of the first day of the first Plan Year beginning after August 17,
2006. Furthermore, paragraph (b) below is effective as of the first day of the
first Plan Year beginning after December 31, 2007.






	 	(a)	 	Determination of Amount. Every Plan fiduciary other than a bank, an
insurance company, a broker-dealer who is registered under the Securities Exchange Act of
1934 §15(b) and who is subject to the fidelity bond requirements of a self-regulatory
organization as defined in ERISA §412(a) as amended by PPA, or a fiduciary of a
Sponsoring Employer that has no common-law employees, will be bonded in an amount that is
not less than 10% of the amount of funds under such Plan fiduciary’s direct or indirect
control; however, such bond will not be less than $1,000 nor more than $500,000 (or such
other amount as may be required by law). The bond will provide protection to the Plan
against any loss for acts of fraud or dishonesty by a Plan fiduciary acting alone or in
concert with others. The cost of such bond will be an expense of either the Sponsoring
Employer or the Plan, at the election of the Sponsoring Employer.






	 	(b)	 	Investment in Employer Securities. If the Plan holds employer
securities as defined in ERISA §407(d)(I), the maximum bond described in paragraph (a) is
increased to $1,000,000 unless the Department of Labor prescribes a larger amount after
notice and an opportunity for interested parties to be heard.






	1.2	 	Service for Vesting Purposes When Previously Frozen Plan Resumes Allocations.
If (a) the Plan becomes frozen; (b) the freezing of allocations under the Plan causes a partial termination of the
Plan to occur; and (c) allocations later resume under the previously-frozen Plan, then all
Years of Service or I-Year Periods of Service, as applicable, after the Plan was established
must be recognized for Vesting purposes. In addition, if allocations are made under a new plan
maintained by the same Employer and if the new plan is merged with the frozen Plan, then all
Years of Service or I-Year Periods of Service, as applicable, after the frozen Plan was
established must be recognized for Vesting purposes for any allocations under the new plan
after the merger. The provisions of this Section comply with Revenue Ruling 2003-65.





			
	 	 	 
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	1.3	 	Eliminating Forms of Distribution. In addition to rules that are enumerated by
Regulations and other guidance concerning the modification of the Plan’s Normal Form of Distribution and the modification
and/or the elimination of the Plan’s Optional Forms of Distribution, for any applicable Plan
amendment that is adopted on or after August 12, 2005 (except as otherwise provided), the Plan
may be amended to eliminate a form of distribution, subject to the following rules:






	 	(a)	 	General Rule for Eliminating a Form of Distribution.The Plan may eliminate a
form of distribution previously available to Participants, so long as:






	 	(1)	 	Single Sum Available. A single sum payment is available to Participants at
the same time or times as the form of distribution being eliminated;
	 
	 	(2)	 	Same or Greater Portion of Participant’s Account. Such single sum payment
is based upon the same or greater portion of the Participant’s Account as the form of
distribution being eliminated; and
	 
	 	(3)	 	Single Sum Otherwise Identical. Such single-sum distribution form is
otherwise identical to the form of benefit being eliminated or restricted. For purposes of
this subparagraph, a single-sum distribution form is otherwise identical to the form of
benefit that is eliminated or restricted only if the single-sum distribution form is
identical in all respects to the eliminated or restricted form of distribution (or would be
identical except that it provides greater rights to the Participant) except with respect to
the timing of payments after commencement. However, an otherwise identical distribution
form need not retain rights or features of the form of benefit that is eliminated or
restricted to the extent that those rights or features would not be protected from
elimination or restriction under Code §411(d)(6).






	 	(b)	 	Eliminating Optional Forms of Distribution Through Utilization Test. If the Plan
is a money purchase plan or a target benefit plan, then in addition to the provisions of
paragraph (a) above, for any applicable Plan amendment adopted after December 31, 2006, the
Plan may eliminate any/all Optional Forms of Distribution that comprise a Generalized
Optional Form for a Participant with respect to allocations that occurred before the
Applicable Amendment Date under the “Utilization Test” of Regulation §1.411(d)-3(f). The
elimination of Optional Forms of Distribution of this paragraph (b) is subject to the
following:






	 	(1)	 	Not a Core Benefit. The Optional Forms of Distribution being eliminated cannot
be a Core Option.
	 
	 	(2)	 	Timeframe for Amendment. The Plan amendment is not applicable with respect
to an Optional Form of Distribution with an Annuity Starting Date that is earlier than the
number of days in the maximum Applicable Election Period after the date that the amendment
is adopted.
	 
	 	(3)	 	Requirements. During the Look-Back Period, (1) the Generalized Optional
Form has been available to at least the Applicable Number of Participants; and (2) no
Participant has elected any Optional Form of Distribution that is part of the Generalized
Optional Form with an Annuity Starting Date that is within the Look-Back Period.






	 	(c)	 	Definitions. As used in this Section, the following words and phrases have the
following meanings:






	 	(1)	 	Applicable Amendment Date. The term “Applicable Amendment Date” means the
later of the effective date of the amendment or the date that the amendment is adopted.
	 
	 	(2)	 	Applicable Election Period. The term “Applicable Election Period” means the
period described in Code §417(a)(6), to wit: with respect to an election to waive the
Qualified Joint and Survivor Annuity, the period that begins not later than 180 days prior
to the Annuity Starting Date (unless future guidance requires/permits otherwise).
	 
	 	(3)	 	Applicable Number of Participants. The term “Applicable Number of
Participants” means 50 Participants. However, the Applicable Number of Participants may
include Participants Taken Into Account who elected an Optional Form of Distribution that
included a single-sum distribution that applied with respect to at least 25% of the
Participant’s Account, but only if the Applicable Number of Participants is increased to
1,000 Participants.





			
	 	 	 
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	 	(4)	 	Core Option. The term “Core Option” means (A) a straight life
annuity Generalized Optional Form under which the Participant is entitled to a level
life annuity with no benefit payable after the Participant’s death; (B) a 75% joint
and contingent annuity Generalized Optional Form under which the Participant is
entitled to a life annuity with a survivor annuity for any individual designated by
the Participant (including a non-Spousal contingent annuitant) that is 75% of the
amount payable during the Participant’s life; (C) a lO-year term certain and life
annuity Generalized Optional Form under which the Participant is entitled to a life
annuity with a guarantee that payments will continue to any person designated by the
Participant for the remainder of a fixed period of 10 years if the Participant dies
before the end of the lO-year period; and (D) the most valuable option for a
Participant with a short life expectancy, as defined in Regulation
§1.4ll(d)-3(g)(5)(iii). The rules of Regulation §1.4ll(d)-3(g)(5) apply to the
determination of Core Options.
	 
	 	(5)	 	Generalized Optional Form. The term “Generalized Optional Form”
means a group of Optional Forms of Distribution that are identical except for
differences due to actuarial factors used to determine the amount of the
distributions under those Optional Forms of Distribution and the Annuity Starting
Dates.
	 
	 	(6)	 	Look-Back Period. The term “Look-Back Period” means the period
that includes: (A) the portion of the Plan Year in which such Plan amendment is
adopted that precedes the date of adoption (known as the “Pre-Adoption Period”); and
(B) the 2 Plan Years immediately preceding the Pre-Adoption Period. With regard to
the Look-Back Period, the following rules apply: (A) in the Look-Back Period, at
least 1 of the Plan Years must be a 12-month Plan Year; (B) the Plan may exclude,
pursuant to an administrative policy that is promulgated by the Administrator, the
calendar month in which the amendment is adopted from the Look-Back Period and the
preceding 1 or 2 calendar months to the extent those preceding months are contained
within the Pre-Adoption Period; and (C) in order to have a Look-Back Period that
satisfies the requirement of the minimum Applicable Number of Participants, the
Look-Back Period may be expanded pursuant to an administrative policy that is
promulgated by the Administrator, to include the 3, 4, or 5 Plan Years immediately
preceding the Plan Year in which the amendment is adopted. However, if the Plan does
not satisfy the requirement of the minimum Applicable Number of Participants using
the Pre-Adoption Period and the immediately preceding 5 Plan Years, then the Plan is
not permitted to be amended in accordance with the Utilization Test of this Section.
	 
	 	(7)	 	Participant Taken Into Account. The term “Participant Taken
Into Account” means a Participant who was eligible to elect to commence payment of an
Optional Form of Distribution that is part of the Generalized Optional Form being
eliminated with an Annuity Starting Date that is within the Look-Back Period. A
Participant is not a Participant Taken Into Account if the Participant (A) did not
elect any Optional Form of Distribution with an Annuity Starting Date that was within
the Look-Back Period; (B) elected an Optional Form of Distribution that included a
single-sum distribution that applied with respect to at least 25% of the
Participant’s Account; (C) elected an Optional Form of Distribution that was only
available during a limited period of time and that contained a retirement-type
subsidy where the subsidy that is part of the Generalized Optional Form being
eliminated was not extended to any Optional Form of Distribution with the same
Annuity Starting Date; or (D) elected an Optional Form of Distribution with an
Annuity Starting Date that was more than 10 years before Normal Retirement Age.






	1.4	 	Application of Code §411 (a) With Respect to Protected Benefits. Any
applicable Plan amendment adopted after August 9, 2006 which decreases a Participant’s Account balance, or otherwise places
greater restrictions or conditions on a Participant’s rights to Code §4ll(d)(6) protected
benefits is not permitted, even if the Plan amendment merely adds a restriction or condition
that is permitted under the Vesting rules in Code §4ll(a)(3) through (11). However, a Plan
amendment does not violate Code §4ll(d)(6) to the extent that the amendment applies to
allocations after the Applicable Amendment Date. Notwithstanding the first sentence of this
Section, a Plan amendment that satisfies the requirements of Department of Labor Regulation
2530.203-2(c) (relating to Vesting Computation Periods) does not violate the requirements of
Code §4ll(d)(6) even though the Plan amendment changes the Plan’s Vesting Computation
Periods. For purposes of this Section, the term “Applicable Amendment Date” means the later
of the effective date of the amendment or the date the amendment is adopted.
	 
	1.5	 	Financial Hardship Distributions. If the Plan is either a profit sharing plan
or a 401(k) Plan and if elected by the Sponsoring Employer in the Election Form, then this Section is effective as of the effective
date elected in the Election Form, and the following provisions apply to the Plan:





			
	 	 	 
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	 	(a)	 	Revised Definition of Financial Hardship. With respect to financial hardship
distributions made on or after the effective date of this Section, the determination of any
deemed immediate and heavy financial need described in Regulation §1.401(k)-I(d)(3)(iii)(B)
will be expanded to include any immediate and heavy financial need (expenses described in
Regulation §1.401(k)-I(d)(3)(iii)(B)(I), (3), or (5), which relate to medical, tuition, and
funeral expenses, respectively) of a Participant’s Primary Beneficiary. For purposes of this
Section, the term “Primary Beneficiary” means the individual(s) who is named and designated
as a Beneficiary under the terms of the Plan and who has an unconditional right to all or a
portion of the Participant’s Account balance upon the Participant’s death.
	 
	 	(b)	 	Amounts to Which the Revised Definition of Financial Hardship Applies. The
provisions of this Section apply to financial hardship distributions under the provisions of
an administrative policy regarding financial hardship distributions that is promulgated by
the Administrator.






	1.6	 	Distribution to a Qualified Reservist. If the Plan is a 40 1 (k) Plan and if
elected by the Sponsoring Employer in the Election Form, then this Section is effective with respect to any Qualified Reservist
Distribution that is taken after September 11, 2001 but before December 31, 2007 (but the
December 31, 2007 date has been eliminated by the Heroes Earnings Assistance and Relief Tax
Act of 2008 (HEART)), as follows:






	 	(a)	 	Qualified Reservist Distribution Permitted for Any Reason. A Qualified Reservist
Distribution may be made to a Qualified Reservist under any circumstance and/or for any
reason without violating the distribution restrictions of Code §401(k)(2)(B)(i).
	 
	 	(b)	 	Qualified Reservist Distribution Not Subject To Excise Tax and May Be Repaid To an
IRA.
	 
	 	 	 	Notwithstanding anything in the Plan to the contrary, to the extent that any distribution
is a Qualified Reservist Distribution, the otherwise applicable 10% excise tax of Code
§72(t)(I) on early distributions will not apply. In addition, at any time during the two-year
period beginning on the day after the last day of the Qualified Reservist’s active duty (but
the two-year period will end no earlier than August 17, 2008), a Qualified Reservist who has
received one or more Qualified Reservist Distributions may make one or more repayment
contributions to an IRA in an aggregate amount not to exceed the total amount of such Qualified
Reservists Distributions. The dollar or compensation limitations otherwise applicable to
contributions to an IRA will not apply to a repayment contribution of Qualified Reservist
Distributions. No deduction is allowed for a repayment contribution of Qualified Reservist
Distributions.
	 
	 	(c)	 	Definitions. As used in this Section, the following words and phrases have the
following meanings:






	 	(1)	 	Qualified Reservist. The term “Qualified Reservist” means an individual
who is a member of a reserve component, as defined in §101 of title 37, United States
Code, and who is ordered or called to active duty after September 11, 2001 and before
December 31, 2007 (but the December 31, 2007 date has been eliminated by the Heroes
Earnings Assistance and Relief Tax Act of 2008 (HEART)) either for a period in excess of
179 days or for an indefinite period.
	 
	 	(2)	 	Qualified Reservist Distribution. The term “Qualified Reservist
Distribution” means a distribution of Elective Deferrals to a Qualified Reservist that is
made during the period beginning on the date that the Qualified Reservist is ordered or
called to duty and ending on the last day of active duty.






	1.7	 	Hurricane Provisions. If elected by the Sponsoring Employer in the Post-EGTRRA
“Good Faith” Amendment Election Form, then except as otherwise provided in paragraphs (c) through (0 below, this
Section applies to any Participant in the Plan that was affected by Hurricanes Katrina, Rita,
or Wilma:






	 	(a)	 	Qualified Hurricane Distributions. The following provisions apply to Qualified
Hurricane Distributions:






	 	(1)	 	Qualified Hurricane Distribution Not Subject to Code §72(t). Any Qualified
Hurricane Distribution will not be subject to Code §72(t). The aggregate amount of
distributions received by an individual which may be treated as Qualified Hurricane
Distributions for any taxable year shall not exceed the excess (if any) of (A) $100,000,
minus (B) the aggregate amounts treated as Qualified Hurricane Distributions received by
such individual for all prior taxable years.





			
	 	 	 
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	 	(2)	 	Clarification of Qualified Hurricane Distribution. If a distribution to an
individual would (without regard to subparagraph (c)(I)) be a Qualified Hurricane
Distribution, then this Plan shall not be treated as violating any requirement of
subparagraph (c)(I) merely because the Plan treats such distribution as a Qualified
Hurricane Distribution, unless the aggregate amount of such distributions from all plans
(including this Plan) maintained by the Sponsor Employer (and any Affiliated Employer of
the Sponsoring Employer) to such individual exceeds $100,000.
	 
	 	(3)	 	Exemption of Qualified Hurricane Distributions from Trustee to Trustee Transfer
and Withholding Rules. For purposes of Code §401(a)(31), §402(t), and §3405,
Qualified Hurricane Distributions shall not be treated as eligible rollover distributions.
	 
	 	(4)	 	Qualified Hurricane Distributions Treated as Meeting Plan Distribution
Requirements. A Qualified Hurricane Distribution will be treated as meeting the
requirements of Code §401(k)(2)(B)(i), §403(b)(7)(A)(ii), §403(b)(1l), and §457(d)(I)(A).






	 	(b)	 	Procedural Requirements. Any otherwise applicable procedural requirements that are
imposed by the Plan, any administrative policy, or any procedure may be disregarded with
respect to any provision of this Section, so long as the Administrator makes a good-faith
effort under the circumstances to comply with such requirements of the Plan, administrative
policy, or procedure and makes a reasonable attempt to assemble any required documentation as
soon as practical including, if applicable, Spousal consent.
	 
	 	(c)	 	Special Financial Hardship Distributions on Account of Hurricane Disasters. If
elected by the Sponsoring Employer in the Election Form, then regardless of any other
distribution provisions in the Plan to the contrary, a Participant or former Participant (1)
whose Principal Place of Abode is/was located in the Hurricane Katrina Disaster Area,
Hurricane Rita Disaster Area, or Hurricane Wilma Disaster Area; (2) whose place of employment
is/was located in the Hurricane Katrina Disaster Area, Hurricane Rita Disaster Area, or
Hurricane Wilma Disaster Area; or (3) whose lineal ascendant or descendant, dependent or
Spouse has/had a Principal Place of Abode or place of employment in the Hurricane Katrina
Disaster Area, Hurricane Rita Disaster Area, or Hurricane Wilma Disaster Area; and the
Participant or former Participant, or the Participant’s (or former Participant’s) lineal
ascendant or descendant, dependent, or Spouse faces an immediate and heavy financial need,
may receive a special financial hardship distribution on or after August 29, 2005 and not
later than March 31, 2006 of the Participant’s Elective Deferrals (as well as the
Participant’s Vested Interest in the Participant’s Account or any sub-account of the
Participant’s Account that is not prohibited by law or Regulation from being distributed as a
hardship distribution). The determination of whether a Participant or former Participant, or
the Participant’s (or former Participant’s) lineal ascendant or descendant, dependent, or
Spouse has an immediate and heavy financial need will be made by the Administrator, subject
to the following provisions:






	 	(1)	 	Immediate and Heavy Financial Need. The determination by the Administrator
of an immediate and heavy financial need will be based upon such severity that a
Participant or former Participant, or the Participant’s (or former Participant’s) lineal
ascendant or descendant, dependent, or Spouse is confronted or endangered by present or
impending financial ruin, present or impending want, or privation. The Administrator will
determine whether an immediate and heavy financial need exists based on all relevant facts
and circumstances in a nondiscriminatory manner, and will not be limited to the
circumstances enumerated in subparagraph (2) below. The Participant or former Participant
must demonstrate the immediate and heavy financial need with positive evidence submitted
to the Administrator, if positive evidence is readily available. However, the
Administrator may rely upon representations from the Participant or former Participant as
to the need for and amount of a financial hardship distribution, unless the Administrator
has actual knowledge to the contrary.
	 
	 	(2)	 	Deemed Immediate and Heavy Financial Need. A distribution is deemed to be
on account of an immediate and heavy financial need of a Participant or former
Participant, or the Participant’s (or former Participant’s) lineal ascendant or
descendant, dependent, or Spouse if the distribution is for (A) expenses for (or necessary
to obtain) medical care that would be deductible under Code §213(d) (determined without
regard to whether the expenses exceed 7.5% of adjusted gross income); (B) costs directly
related to the purchase of a principal residence (excluding mortgage payments); (C)
payment of tuition, related educational fees, and room and board expenses, for up to the
next 12 months of post-secondary education; (D) payments necessary to prevent the eviction
from the principal residence or foreclosure on the mortgage on that
residence; (E) payments
for burial or funeral





			
	 	 	 
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expenses; or (F) expenses for the repair of damage to the principal residence that would
qualify for the casualty deduction under Code §I65 (determined without regard to whether the
loss exceeds 10% of adjusted gross income).




	 	(3)	 	Certain Restrictions Do Not Apply to Special Financial Hardship Distributions. If
this Plan (or any other plan of the Sponsoring Employer) is a 40I(k) Plan or permits Voluntary
Employee Contributions, then a Participant who receives a special financial hardship
distribution of Elective Deferrals pursuant to this paragraph (c) is not prohibited from
making Elective Deferrals or Voluntary Employee Contributions to the Plan (or any other plan
of the Sponsoring Employer) at any time after receipt of the special financial hardship
distribution.






	 	(d)	 	Participant Loans. If elected by the Sponsoring Employer in the Election Form,
then the following provisions apply to a Qualified Individual with respect to loans made
during the Applicable Period:






	 	(1)	 	Increase in Limit on Loans Not Treated as Distributions. In the case of any
Participant loan to a Qualified Individual made during the Applicable Period, the following
Participant loan limits that are contained in the separate written loan program are increased
as follows: (A) the $50,000 aggregate limit on a Participant’s loans of Code §72(p)(2)(A)(i)
is increased to $100,000; and (B) the aggregate amount of a Participant’s loans which is
limited to 50% of the Participant’s Vested Account balance of Code §72(p)(2)(A)(ii) is
increased to 100% of the Participant’s Vested Account balance.
	 
	 	(2)	 	Adequate Security. The requirements of ERISA with respect to adequate loan
security are not enforced with respect to any Participant loan to a Qualified Individual
during the Applicable Period.
	 
	 	(3)	 	Delay of Repayment. In the case of a Qualified Individual with an outstanding
Participant loan from this Plan on or after the Qualified Beginning Date, the following will
apply: (A) if the due date for any repayment with respect to such Participant loan pursuant to
Code §72(p)(2)(B) and (C) occurs during the period beginning on the Qualified Beginning Date
and ending on December 31,2006, then such due date for any repayment will be delayed for one
(1) year. Such I-year delay period will not trigger a deemed distribution of the Participant
loan under the Plan or the Regulations; (B) in determining the 5 year period (assuming that the
Participant loan is not a principal residence loan) and the term of a Participant loan under
Code §72(p)(2)(B) and (C), the I-year delay period described in subparagraph (A) shall be
disregarded; and (C) any subsequent repayments with respect to any such Participant loan will
be appropriately adjusted to reflect the delay in the due date for any repayment under
subparagraph (A) and any interest accruing during such delay. After the I-year period
described in subparagraph (A), the Participant loan shall be repaid by amortizing the
outstanding balance (including accrued interest) in substantially level installments over the
remaining period of the Participant loan (i.e., five (5) years from the date of the
origination of the Participant loan (assuming that the Participant loan is not a principal
residence loan) plus the I-year delay period).
	 
	 	(4)	 	Applicable Period and Qualified Beginning Date. In applying this paragraph (d),
the following will apply: (A) in the case of any Qualified Hurricane Katrina Individual, the
Applicable Period is the period beginning on September 24,2005 and ending on December 31, 2006
and the Qualified Beginning Date is August 25,2005; (B) in the case of any Qualified Hurricane
Rita Individual, the Applicable Period is the period beginning on December 21, 2005 and ending
on December 31, 2006 and the Qualified Beginning Date is September 23, 2005; and (C) in the
case of any Qualified Hurricane Wilma Individual, the Applicable Period is the period
beginning on December 21, 2005 and ending on December 31, 2006 and the Qualified Beginning
Date is October 23,2005.






	 	(e)	 	Re-Contribution of Prior Qualified Hurricane Distributions to the Plan. If
elected by the Sponsoring Employer in the Election Form, then the following provisions apply
to the re-contribution of Qualified Hurricane Distributions to the Plan:






	 	(1)	 	Re-Contribution of Qualified Hurricane Distribution. Any individual who receives
a Qualified Hurricane Distribution may make, at any time during the 3-year period beginning on
the day after the date on which such distribution was received, one or more re-contributions
in an aggregate amount not to exceed the amount of such Qualified Hurricane Distribution to
this Plan (which is an eligible retirement plan as defined in Code





			
	 	 	 
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§402(c)(8)(B)), so long as such individual is a beneficiary of the Plan and such Qualified
Hurricane Distribution is (or is deemed to be, pursuant to subparagraph (2)) an eligible
rollover distribution as described in Code §402(c)(4) from the Plan.




	 	(2)	 	Treatment of Repayments of Distributions from Eligible Retirement Plan. If
a re-contribution is made pursuant to subparagraph (1) with respect to a Qualified
Hurricane Distribution from an eligible retirement plan, then the individual will, to the
extent of the amount of the re-contribution, be treated as having received the Qualified
Hurricane Distribution in an eligible rollover distribution (as defined in Code §402(c)(4))
and as having transferred the amount to the eligible retirement plan in a direct trustee to
trustee transfer within 60 days of distribution. The following rules apply to any such
re-contribution of a prior Qualified Hurricane Distribution: (A) required minimum
distributions of Code §401(a)(9) are not permitted to be re-contributed to this Plan or any
eligible retirement plan; (B) any Qualified Hurricane Distribution paid to an individual as
a Beneficiary of a Participant (other than the surviving Spouse of a Participant) cannot be
re-contributed to the Plan. However, any Qualified Hurricane Distribution paid to the
surviving Spouse of a Participant can be re-contributed to the Plan (unless prohibited by
clause (A) above); and (C) any financial hardship distribution that is a Qualified
Hurricane Distribution will not be treated as being made on account of hardship for
purposes of the Plan and the Code; any portion of such financial hardship distribution is
permitted to be re-contributed to this Plan.






	 	(f)	 	Re-Contribution of Prior Qualified Distributions for Home Purchases to the Plan.
If elected by the Sponsoring Employer in the Election Form, then this paragraph (f)
apply to the re-contribution of prior Qualified Distributions. Any individual who received a
Qualified Distribution may, during the Applicable Period, make one or more re-contributions to
this Plan (which is an eligible retirement plan as defined in Code §402(c)(8)(B)) in an
aggregate amount not to exceed the amount of such Qualified Distribution, so long as such
individual is a beneficiary in the Plan and such Qualified Distribution is (or is deemed to
be, pursuant to subparagraph (e)(2)) an eligible rollover distribution as described in Code
§402(c)(4). Rules similar those in subparagraph (e)(2) will apply to such re-contributions.
For purposes of this paragraph, the term “Applicable Period” means (1) with respect to any
Qualified Katrina Distribution, the period beginning on August 25, 2005 and ending on February
28, 2006; (2) with respect to any Qualified Rita Distribution, the period beginning on
September 23, 2005 and ending on February 28, 2006; and (3) with respect to any Qualified
Wilma Distribution, the period beginning on October 23, 2005 and ending on February 28, 2006.
	 
	 	(g)	 	Definitions. As used in this Section, the following words and phrases have the
following meanings:






	 	(1)	 	Hurricane Katrina Disaster Area. The term “Hurricane Katrina Disaster Area”
means an area with respect to which a major disaster has been declared by the President
before September 14, 2005 by reason of Hurricane Katrina, including the states of
Louisiana, Mississippi, Alabama, and Florida.
	 
	 	(2)	 	Hurricane Rita Disaster Area. The term “Hurricane Rita Disaster Area” means
an area with respect to which a major disaster has been declared by the President before
October 6, 2005 by reason of Hurricane Rita.
	 
	 	(3)	 	Hurricane Wilma Disaster Area. The term “Hurricane Wilma Disaster Area”
means an area with respect to which a major disaster has been declared by the President
before November 14, 2005 by reason of Hurricane Wilma.
	 
	 	(4)	 	Principal Place of Abode.The term “Principal Place of Abode” means the
household where a Qualified Individual lives. A temporary absence by a Qualified Individual
from the Principal Place of Abode due to special circumstances, such as illness, education,
business, vacation, or military service, will not change a Qualified Individual’s Principal
Place of Abode. The following provisions apply to a Qualified Individual’s Principal Place
of Abode:






	 	(A)	 	Hurricane Katrina. If a Qualified Individual’s Principal Place of
Abode was in the Hurricane Katrina Disaster Area immediately before August 28, 2005,
and the Qualified Individual evacuated because of Hurricane Katrina, then the Qualified
Individual’s Principal Place of Abode will be considered to be in the Hurricane Katrina
Disaster Area on August 28, 2005.





			
	 	 	 
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	 	(B)	 	Hurricane Rita. If a Qualified Individual’s Principal Place of Abode was in
the Hurricane Rita Disaster Area immediately before September 23, 2005, and the Qualified
Individual evacuated because of Hurricane Rita, then the Qualified Individual’s Principal
Place of Abode will be considered to be in the Hurricane Rita Disaster Area on September
23,2005.
	 
	 	(C)	 	Hurricane Wilma. If a Qualified Individual’s Principal Place of Abode was
in the Hurricane Wilma Disaster Area immediately before October 23, 2005, and the Qualified
Individual evacuated because of Hurricane Wilma, then the Qualified Individual’s Principal
Place of Abode will be considered to be in the Hurricane Wilma Disaster Area on October
23,2005.






	 	(5)	 	Qualified Distribution. The term “Qualified Distribution” means any Qualified
Katrina Distribution, Qualified Rita Distribution, and Qualified Wilma Distribution. For
purposes of this definition:






	 	(A)	 	Qualified Katrina Distribution. The term “Qualified Katrina Distribution”
means any distribution (i) described in Code §401(k)(2)(B)(i)(IV), §403(b)(7)(A)(ii) (but
only to the extent it relates to financial hardship), §403(b)(1l)(B), or §72(t)(2)(F); (ii)
received after February 28, 2005 and before August 29, 2005; and (iii) which was to be used
to purchase or construct a principal residence in the Hurricane Katrina Disaster Area, but
which was not so purchased or constructed on account of Hurricane Katrina.
	 
	 	(B)	 	Qualified Rita Distribution. The term “Qualified Rita Distribution” means
any distribution (other than a Qualified Katrina Distribution) (i) described in Code
§401(k)(2)(B)(i)(IV), §403(b)(7)(A)(ii) (but only to the extent it relates to financial
hardship), §403(b)(1l)(B), or §72(t)(2)(F); (ii)received after February 28, 2005 and before
September 24,2005; and (iii) which was to be used to purchase or construct a principal
residence in the Hurricane Rita Disaster Area, but which was not so purchased or
constructed on account of Hurricane Rita.
	 
	 	(C)	 	Qualified Wilma Distribution. The term “Qualified Wilma Distribution” means
any distribution (other than a Qualified Katrina Distribution or a Qualified Rita
Distribution) (i) described in Code §401(k)(2)(B)(i)(IV), §403(b)(7)(A)(ii) (but only to
the extent it relates to financial hardship), §403(b)(1l)(B), or §72(t)(2)(F); (ii)
received after February 28, 2005 and before October 24, 2005; and (iii) which was to be
used to purchase or construct a principal residence in the Hurricane Wilma Disaster Area,
but which was not so purchased or constructed on account of Hurricane Wilma.






	 	(6)	 	Qualified Hurricane Distribution. The term “Qualified Hurricane Distribution”
means (A) any distribution from an eligible retirement plan made on or after August 25, 2005
and before January 1, 2007, to an individual whose Principal Place of Abode on August 28, 2005
is located in the Hurricane Katrina Disaster Area and who has sustained an economic loss by
reason of Hurricane Katrina; (B) any distribution which is not described in subparagraph (A)
from an eligible retirement plan made on or after September 23, 2005 and before January 1,
2007, to an individual whose Principal Place of Abode on September 23, 2005 is located in the
Hurricane Rita Disaster Area and who has sustained an economic loss by reason of Hurricane
Rita; and (C) any distribution which is not described in subparagraphs (A) or (B) from an
eligible retirement plan made on or after October 23,2005 and before January 1,2007, to an
individual whose Principal Place of Abode on October 23, 2005 is located in the Hurricane
Wilma Disaster Area and who has sustained an economic loss by reason of Hurricane Wilma. An
individual is permitted to designate any distribution as a Qualified Hurricane Distribution.
Qualified Hurricane Distributions are permitted to be periodic payments and required minimum
distributions. A Qualified Hurricane Distribution is permitted to be a distribution received
by an individual as a Beneficiary.
	 
	 	(7)	 	Qualified Individual. The term “Qualified Individual” means any Qualified
Hurricane Katrina Individual, any Qualified Hurricane Rita Individual, and any Qualified
Hurricane Wilma Individual. For purposes of this definition:






	 	(A)	 	Qualified Hurricane Katrina Individual. A “Qualified Hurricane Katrina
Individual” means an individual whose Principal Place of Abode on August 28, 2005, was
located in the Hurricane Katrina Disaster Area and who has sustained an economic loss by
reason of Hurricane Katrina.





			
	 	 	 
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	 	(B)	 	Qualified Hurricane Rita Individual. A “Qualified Hurricane Rita
Individual” means an individual (other than a Qualified Hurricane Katrina Individual)
whose Principal Place of Abode on September 23, 2005, was located in the Hurricane Rita
Disaster Area and who has sustained an economic loss by reason of Hurricane Rita.
	 
	 	(C)	 	Qualified Hurricane Wilma Individual. A “Qualified Hurricane Wilma
Individual” means an individual (other than a Qualified Hurricane Katrina Individual or
a Qualified Hurricane Rita Individual) whose Principal Place of Abode on October 23,
2005, was located in the Hurricane Wilma Disaster Area and who has sustained an
economic loss by reason of Hurricane Wilma.






	1.8	 	Retroactive Revocation of Prior Amendment on account of the Heinz Decision. If
elected by the Sponsoring Employer in the Election Form, then this Section is effective as of the effective date elected
in the Election Form. This Section is based upon the Supreme Court decision of Central
Laborers’ Pension Fund v. Heinz, et al. that was decided on June 7,2004 and Regulation
§1.411(d)-3(b)(4) that became effective June 7,2004. The Plan is subject to the following
rules and provisions:






	 	(a)	 	Retroactive Revocation. As elected by the Sponsoring Employer in the Election
Form, the Original Amendment is hereby revoked retroactively with respect to either (1) all
accrued benefits, which are allocations that had accrued as the Applicable Amendment Date and
allocations that have accrued after the Applicable Amendment Date; or (2) only accrued
benefits as the Applicable Amendment Date, which are allocations that had accrued as the
Applicable Amendment Date. Allocations that have accrued after the Applicable Amendment Date
will continue to be subject to the restrictions with respect to the form or timing of
distributions from the Plan as enumerated in the Original Amendment.
	 
	 	(b)	 	Effect of Revocation on Benefits to Affected Participants. Benefit payments
(including any appropriate interest or actuarial increase) will resume to Affected
Participants on the execution date of this Section in the applicable optional form of benefit.
	 
	 	(c)	 	Opportunity for Eligible Participants. An Eligible Participant must be given an
opportunity to elect retroactively the commencement of payment of benefits as of the first
date on which (1) this Section is effective and (2) the Participant was eligible to commence
receipt of benefits. The following provisions apply to Eligible Participants:






	 	(1)	 	Election Period. The election period begins within a reasonable time period
after Eligible Participants have received notification of the option in accordance with
paragraph (2) below and ends no sooner than six months after notification. Reasonable
efforts must be taken to notify all Eligible Participants, including the use of the
Internal Revenue Service Letter Forwarding Program.
	 
	 	(2)	 	Notification Requirement. The Plan must provide notice of the option set
forth in this paragraph to each Eligible Participant. In addition to satisfying generally
applicable notice requirements, the notice of the option to commence payment of benefits
must be designed to be readily understood by the average Participant, and it must explain
the period for making the election as described in subparagraph (1).






	 	(d)	 	Definitions. As used in this Section, the following words and phrases have the
following meanings:






	 	(1)	 	Affected Participant. The term “Affected Participant” means either (A) a
Participant who commenced receipt of benefits and whose benefit payments had ceased as a
result of the Original Amendment, or (B) a Participant who had applied for benefits
(including election of the optional form of benefit) and whose application for benefits
(including the form of payment) either was approved but benefits were suspended before
payments commenced as a result of the Original Amendment, or was denied as a result of the
Original Amendment.
	 
	 	(2)	 	Applicable Amendment Date. The term “Applicable Amendment Date” means the
later of the effective date of the Original Amendment or the date that the Original
Amendment was adopted.





			
	 	 	 
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	 	(3)	 	Eligible Participant. The term “Eligible Participant” is a
Participant who (A) at any time after the Applicable Amendment Date, was eligible to
commence the receipt of benefits under the Plan, determined without regard to the
suspension of benefit provisions of the Original Amendment; (B) at the same time,
engaged in service for which benefits were not permitted to commence, as determined
taking into account the Original Amendment; and (C) is not an Affected Participant
(e.g., is a Participant who did not apply for benefits).
	 
	 	(4)	 	Original Amendment. The term “Original Amendment” means a
previously-executed amendment that impermissibly restricted the form or timing of
distributions from the Plan.






	1.9	 	Certain Employees of Tax Exempt Entity Excluded From 401 (k) Plan or 401 (m) Plan.
If (a) the Plan is a Code §401(k) Plan and/or a Code §401(m) Plan; (b) the Sponsoring Employer and/or an Adopting
Employer is a tax-exempt entity described in Code §403(b)(I)(A)(i); (c) the Plan excludes
Employees who participate in a Code §403(b) plan; and (d) if elected by the Sponsoring
Employer in the Election Form, then this Section is effective for Plan Years beginning after
December 31, 1996. Employees of the tax-exempt Employer who are eligible to make Elective
Deferrals to a Code §403(b) plan are treated as excludable with respect to the Code §401(k)
Plan and/or the Code §401(m) Plan that is provided under the same general arrangement as the
Code §401(k) Plan, pursuant to Regulation §1.41O(b)-6(g)(3) that was modified July 21, 2006,
provided (a) Employees of the tax-exempt Employer are not Eligible Employees in the Code
§401(k) Plan and/or the Code §401(m) Plan; and (b) at least 95% of the Employees who are not
Employees of the tax-exempt Employer are Eligible Employees in the Code §401(k) Plan and/or
the Code §401(m) Plan.





Article 2

Post-EGTRRA Provisions Initially Effective 2007





	 
	2.1	 	Notice and Consent Requirements. This Section applies
to any Notices/Forms and Participant Elections under the
Plan and is effective as of January 1,2007:






	 	(a)	 	Right to Defer Distribution. Notices/Forms that relate to distributions
will include a description of a Participant’s right (if any) to defer receipt of a
distribution and will describe the consequences of failing to defer receipt of the
distribution, pursuant to the Regulations and other guidance provided by the Treasury
and/or Labor. Notices/Forms that are delivered to Participants before the 90th day after
the issuance of Regulations (unless future guidance requires otherwise) will include at a
minimum: (1) a description indicating the investment options available under the Plan
(including fees) that will be available if the Participant defers distribution; and (2)
the portion of the summary plan description that contains any special rules that might
materially affect a Participant’s decision to defer.
	 
	 	(b)	 	Electronic Notice and Consent. The use of an electronic medium to
provide Notices/Forms and to make Participant Elections with respect to the Plan is
permitted pursuant to the rules of this Section.






	 	(1)	 	Requirements of Electronic System. The following rules relate
to the design of an electronic system used to deliver Forms/Notices and to make
Participant Elections:






	 	(A)	 	Understandable as Paper Document. The electronic
system must be reasonably designed to provide the information in the Form/Notice
to a Recipient in a manner that is no less understandable to the Recipient than
a written paper document.
	 
	 	(B)	 	Significance of Form/Notice. The electronic system
must be designed to alert the Recipient, at the time that a Form/Notice is
provided, to the significance of the information in the Form/Notice (including
identification of the subject matter of the Form/Notice), and provide any
instructions needed to access the Form/Notice, in a manner that is readily
understandable.






	 	(2)	 	Consumer Consent Requirements. With respect to a Notice/Form,
the following consumer consent requirements must be satisfied and, in accordance with
E-SIGN §101(c)(6), the Notice/Form is not provided through the use of oral
communication or a recording of an oral communication:





			
	 	 	 
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	 	(A)	 	Consent to Electronic Delivery. The Recipient must affirmatively consent to the
delivery of the Notice/Form using an electronic medium. This consent must be either (i) made
electronically in a manner that reasonably demonstrates that the Recipient can access the
Notice/Form in the electronic medium in the form that will be used to provide the notice; or
(ii) made using a written paper document (or any other permitted form under the Regulations),
but only if the Recipient confirms the consent electronically in a manner that reasonably
demonstrates that the Recipient can access the Notice/Form in the electronic medium in the
form that will be used to provide the notice.
	 
	 	(B)	 	Withdrawal of Consumer Consent. The consent under paragraph (A) to receive
electronic delivery of Notices/Forms may be withdrawn by the Recipient at any time, and
subsequent Notices/Forms cannot be delivered electronically.
	 
	 	(C)	 	Required Disclosure Statement. The Recipient, prior to consenting under
paragraph (A), must be provided with a clear and conspicuous statement containing the
following disclosures:






	 	(i)	 	Right to Receive Paper Document. The statement informs the Recipient [a]
of any right to have the Notice/Form provided using a written paper document or other
non-electronic form; and [b] how, after having provided consent to receive the Notice/Form
electronically, the Recipient may, upon request, obtain a paper copy of the Notice/Form
and whether any fee will be charged for such copy.
	 
	 	(ii)	 	Right to Withdraw Consumer Consent. The statement informs the Recipient of
the right to withdraw consent to receive electronic delivery of a Notice/Form on a
prospective basis at any time and explains the procedures for withdrawing that consent and
any conditions, consequences, or fees in the event of the withdrawal.
	 
	 	(iii)	 	Scope of Consumer Consent. The statement informs the Recipient whether the
consent to receive electronic delivery of a Notice/Form applies only to the particular
transaction that gave rise to the Notice/Form or to other identified transactions that may
be provided or made available during the course of the parties’ relationship. The statement
may provide that a Recipient’s consent to receive electronic delivery will apply to all
future Forms/Notices of the Recipient relating to the Plan until the Recipient is no longer
a Participant in the Plan (or withdraws the consent).
	 
	 	(iv)	 	Description of the Contact Procedures. The statement describes the
procedures to update information needed to contact the Recipient electronically.
	 
	 	(v)	 	Hardware or Software Requirements. The statement describes the hardware
and software requirements needed to access and retain the Notice/Form.






	 	(D)	 	Post-Consent Change in Hardware or Software Requirements. If there is a change in
the hardware or software requirements needed to access or retain the Notice/Form after a
Recipient provides consent to receive electronic delivery and such change creates a material
risk that the Recipient will not be able to access or retain the Notice/Form in electronic
format, then (i) the Recipient must receive a statement of [a] the revised hardware or
software requirements for access to and retention of the Notice/Form; and [b] the right to
withdraw consent to receive electronic delivery without the imposition of any fees for the
withdrawal and without the imposition of any condition or consequence that was not previously
disclosed in paragraph (C); and (ii) The Recipient must reaffirm consent to receive electronic
delivery in accordance with subparagraph (A).
	 
	 	(E)	 	Exemption from Consumer Consent Requirements. If the requirements of this
paragraph (E) are satisfied, then the other requirements of paragraph (2) do not apply. This
paragraph (E) constitutes an exemption from the Consumer Consent Requirements of E-SIGN
§101(c).






	 	(i)	 	Effective Ability to Access. The electronic medium used to provide a
Notice/Form must be a medium that the Recipient has the effective ability to access; and





			
	 	 	 
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	 	(ii)	 	Free Paper Copy of Notice/Form. At the time that the
Notice/Form is provided, the Recipient must be advised that he or she may request
and receive the Notice/Form in writing on paper at no charge, and, upon request,
that Notice/Form must be provided to the Recipient at no charge.






	 	(3)	 	Participant Elections via Electronic Delivery. Participant Elections may
be made electronically, subject to the following rules:






	 	(A)	 	Effective Ability to Access. The electronic medium used to make a
Participant Election must be a medium that the person eligible to make the election is
effectively able to access. If the appropriate individual is not effectively able to
access the electronic medium for making the Participant Election, then the Participant
Election will not be treated as made available to that individual.
	 
	 	(B)	 	Authentication. The electronic system used in making Participant
Elections must be reasonably designed to preclude any person other than the appropriate
individual from making the election, based upon the facts and circumstances, including,
but not limited to, whether the Participant Election has the potential for a conflict
of interest between the individuals involved in the election.
	 
	 	(C)	 	Opportunity to Review. The electronic system used in making
Participant Elections must provide the person making the Participant Election with a
reasonable opportunity to review, confirm, modify, or rescind the terms of the election
before the election becomes effective.
	 
	 	(D)	 	Confirmation of Action. The person making the Participant Election
must receive, within a reasonable time, a confirmation of the effect of the election
through a written paper document or an electronic medium under a system that satisfies
the requirements of subparagraph (2) above.
	 
	 	(E)	 	Witnessing by a Plan Representative or Notary Public. If a
Participant Election is required to be witnessed by a Plan representative or a notary
public (such as a spousal consent under Code §417), then the signature of the
individual making the Participant Election must be witnessed in the physical presence
of a Plan representative or a notary public. An electronic notarization acknowledging a
signature (in accordance with E-SIGN §101(g) and state law applicable to notary
publics) will be given legal effect if the signature of the individual is witnessed in
the physical presence of a notary public. Future guidance by the Treasury will apply to
this paragraph, without the necessity of amending this paragraph.






	 	(4)	 	Non-applicability of Rules. The rules of this Section do not apply to any
notice, election, consent, disclosure, or obligation required under the provisions of
Title I or IV of ERISA, over which the Department of Labor or the Pension Benefit Guaranty
Corporation has interpretative and enforcement authority. The rules in this Section also
do not apply to Code §411(a)(3)(B) (relating to suspension of benefits) or any other Code
provision over which Department of Labor or the Pension Benefit Guaranty Corporation has
similar interpretative authority.
	 
	 	(5)	 	Retention of Electronic Records. If an electronic record of a Notice/Form
or a Participant Election is not maintained in a form that can be retained and accurately
reproduced for later reference, the legal effect, validity, or enforceability of such
electronic record may be denied, pursuant to E-SIGN §101(e).






	 	(c)	 	Notification Period. With respect to any Notice/Form that describes the Normal
Form of Distribution and/or the Optional Forms of Distribution, and any Participant Election
with respect to any distribution delivered to a Participant, the window for giving such
Notice/Forms and Participant Elections will begin not later than 180 days and not earlier than
30 days prior to the Annuity Starting Date (unless future guidance requires/permits
otherwise). Notwithstanding anything in this Section to the contrary, distribution of a
benefit may begin less than 30 days after such Notice/Form and/or Participant Election is
given if (1) the Administrator clearly informs the Participant that he or she has a right to a
period of at least 30 days after receiving such Noticel/Form and/or Participant Election to
consider the decision of whether or not to elect a distribution; (2) the Participant, after
receiving such Notice/Form and/or Participant Election, affirmatively elects a distribution
(or a particular distribution option); and (3) if the Plan is a money purchase plan or the
Normal Form of Distribution is a Qualified Joint and Survivor Annuity, the Participant does
not revoke the election at any time prior to the expiration of the 7-day period that begins on
the date such Notice/Form and/or Participant Election is given.





			
	 	 	 
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	 	(d)	 	Definitions. As used in this Section, the following words and phrases have the
following meanings:






	 	(1)	 	Notice/Form. The term “Notice/Form” means any notice, report, statement, or
other document required to be provided to a Recipient under this Plan.
	 
	 	(2)	 	Participant Election. The term “Participant Election” includes any consent,
election, request, agreement, or similar communication made by or from a Participant,
Beneficiary, alternate payee, or an individual entitled to benefits under the Plan.
	 
	 	(3)	 	Recipient. The term “Recipient” means a Plan Participant, Beneficiary,
Employee, alternate payee, or any other person to whom a Notice/Form is to be provided.






	2.2	 	Direct Rollovers. This Section is effective for tax years beginning after
December 31, 2006 except as otherwise provided. Notwithstanding any provision of the Plan to the contrary that would otherwise limit
a Distributee’s election, a Distributee may elect, at the time and in the manner prescribed by
the Plan, to have any portion of an Eligible Rollover Distribution that is equal to at least
$500 paid directly to an Eligible Retirement Plan specified by the Distributee in a Direct
Rollover. If an Eligible Rollover Distribution is less than $500, a Distributee cannot make
the election described in the preceding sentence to rollover a portion of the Eligible
Rollover Distribution.






	 	(a)	 	Voluntary and Mandatory Employee Contributions as Eligible Rollover Distributions.
An Eligible Rollover Distribution may include Voluntary Employee Contributions,
Mandatory Employee Contributions, or other nontaxable amounts which are not includible in
gross income; however, the portion of an Eligible Rollover Distribution attributable to
Voluntary Employee Contributions, Mandatory Employee Contributions, or other nontaxable
amounts can be paid only in a direct Trustee-to-trustee transfer to (1) an individual
retirement account or annuity described in Code §408(a) or Code §408(b); (2) a qualified
defined contribution plan described in Code §401(a) or Code §403(a); (3) effective for tax
years beginning after December 31, 2006, a qualified defined benefit plan described in Code
§401(a) or Code §403(a); or (4) effective for tax years beginning after December 31,2006, to
an annuity contract described in Code §403(b). Such transferee plan, trust, IRA or contract
must provide separate accounting for amounts so transferred (and earnings thereon), including
separately accounting for the portion of such distribution which is includible in gross income
and the portion of such distribution which is not so includible. Furthermore, in accordance
with the Job Creation and Worker Assistance Act of 2002, when a distribution includes
Voluntary Employee Contributions, Mandatory Employee Contributions, or other nontaxable
amounts which are not includible in gross income, the amount that is rolled over will first be
attributed to amounts includible in gross income.
	 
	 	(b)	 	Direct Rollover Rules for Roth Elective Deferral Account. If the Plan permits
Roth Elective Deferrals to be made on behalf of Participants, then the provisions of this
paragraph apply to the Plan. The Plan will not provide for a Direct Rollover for distributions
from a Participant’s Roth Elective Deferral Account if the amount of the distributions that
are Eligible Rollover Distributions are reasonably expected to total less than $200 during a
year. In addition, any distribution from a Participant’s Roth Elective Deferral Account is not
taken into account in determining whether distributions from the other Participant’s
Account(s) are reasonably expected to total less than $200 during a year. Furthermore, if the
$500 threshold is elected by the Sponsoring Employer in the Election Form, then the provision
of this Section that allows a Participant to elect a Direct Rollover of only a portion of an
Eligible Rollover Distribution (but only if the amount rolled over is at least $500) is
applied by treating any amount distributed from the Participant’s Roth Elective Deferral
Account as a separate distribution from any amount distributed from the other Participant’s
Account(s), even if the amounts are distributed at the same time.
	 
	 	(c)	 	Definitions. As used in this Section, the following words and phrases have the
following meanings:






	 	(1)	 	Direct Rollover. The term “Direct Rollover” means a payment by the Plan to
the Eligible Retirement Plan that is specified by the Distributee.
	 
	 	(2)	 	Distributee. The term “Distributee” means an Employee or former Employee.
In addition, an Employee’s or former Employee’s surviving Spouse and an Employee’s or
former Employee’s Spouse or former Spouse who is the alternate payee under a qualified
domestic relations order as defined in Code §414(p), are Distributees with regard to the
interest of the Spouse or former Spouse.





			
	 	 	 
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	 	(3)	 	Eligible Retirement Plan. The term “Eligible Retirement Plan” means, with
respect to any portion of an Eligible Rollover Distribution that is paid in a Direct
Rollover: (A) an individual retirement account described in Code §408(a); (B) an individual
retirement annuity described in Code §408(b); (C) an annuity plan described in Code
§403(a); (D) an annuity contract described in Code §403(b); (E) a qualified trust described
in Code §401(a); (F) an eligible deferred compensation plan under Code §457(b) which is
maintained by a State (or Commonwealth), a political subdivision of a State (or
Commonwealth), or any agency or instrumentality of a State (or Commonwealth) or political
subdivision of a State (or Commonwealth); and which agrees to separately account for
amounts transferred into such plan from this Plan; or (G) effective January 1,2008, a Roth
individual retirement account as described in Code §408A(b), subject to the restrictions of
Code §408A(c)(3)(B) for tax years beginning prior to January 1, 2010. This definition of
Eligible Retirement Plan will also apply in the case of a distribution to a surviving
Spouse, or to a Spouse or former Spouse who is the alternate payee under a qualified
domestic relation order, as defined in Code §414(p); such distribution will be made in the
same manner as if the Spouse was the Employee. If any portion of an Eligible Rollover
Distribution is attributable to payments or distributions from an individual’s Roth
Elective Deferral Account (or the segregated portion of an individual’s Rollover
Contribution Account that is attributable to Roth Elective Deferrals), then an Eligible
Retirement Plan with respect to such portion will only be either another plan’s designated
Roth account of the individual from whose account the payments or distributions were made,
or such individual’s Roth individual retirement account as described in Code §408A(b).
	 
	 	(4)	 	Eligible Rollover Distribution. The term “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: (A) any
distribution that is one of a series of substantially equal periodic payments (not less
frequently than annually) made for the life (or life expectancy) of the Distributee or the
joint lives (or joint life expectancies) of the Distributee and the Distributee’s
designated beneficiary, or for a specified period of ten years or more; (B) any
distribution to the extent that such distribution is a required minimum distribution under
Code §401(a)(9); (C) if applicable to the Plan, the portion of any distribution that is not
includible in gross income (determined without regard to the exclusion for net unrealized
appreciation with respect to Employer securities); (D) if applicable to the Plan,
corrective distributions of: (i) Excess Deferrals as described in Regulation
§1.402(g)-I(e)(3) including any income allocable to such corrective distributions; (ii)
Excess Contributions under a 401(k) Plan described in Regulation §1.401(k)-I(t)(4)
including any income allocable to such corrective distributions; and (iii) Excess Aggregate
Contributions described in Regulation §1.401(m)-2(b)(2) including any income allocable to
such distributions; (E) if applicable to the Plan, loans that are treated as deemed
distributions pursuant to Code §72(p) (F) if applicable to the Plan, dividends paid on
Employer securities as described in Code §404(k); (G) if applicable to the Plan, the costs
of life insurance coverage (P.S. 58 costs); (H) if applicable to the Plan, prohibited
allocations that are treated as deemed distributions pursuant to Code §409(p); (I) if
applicable to the Plan, the portion of any distribution which is attributable to a
financial hardship distribution; (J) if applicable to the Plan, effective for Plan Years
beginning on or after January 1, 2008, a distribution that is a permissible withdrawal from
an eligible automatic contribution arrangement within the meaning of Code §414(w); and (K)
any other distribution that is reasonably expected to total less than $200 during a year.






	2.3	 	Qualified Domestic Relations Orders. This Section is effective as of April 6,
2007. The term “Qualified Domestic Relations Order” or “QRDO” is amended to include (a) an order that is issued with
respect to another domestic relations order or QDRO, including an order that revises or
amends a prior order; (b) an order issued after the Participant’s Annuity Starting Date or
death; or (c) an order that names as the alternate payee a person deemed financially
dependent upon the Participant, provided that the other requirements for a QDRO as set forth
in the Plan’s QDRO procedure and/or as defined in Code §414(p) are satisfied.
	 
	2.4	 	Determination Whether Partial Termination of the Plan Has Occurred. The
determination of whether a partial termination of the Plan has occurred under Code §411(d)(3) depends on the facts and
circumstances, pursuant to Revenue Ruling 2007-43. This determination is based upon the
following provisions:






	 	(a)	 	Extent to which Participants have a Termination of Employment. If the Turnover
Rate is at least 20 percent, there is a presumption that a partial termination of the Plan
has occurred.





			
	 	 	 
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	 	(b)	 	Transfer to Affiliated Employer. Employees who have a Termination of Employment
with the Employer on account of a transfer to an Affiliated Employer are not considered as
having a Termination of Employment for purposes of calculating the Turnover Rate, if those
Employees continue to be covered by the Plan or a plan that is a continuation of the Plan
under which they were previously covered.
	 
	 	(c)	 	Facts and Circumstances. Whether a partial termination of the Plan occurs on
account of Participant turnover (and the time of such event) depends on all the facts and
circumstances in a particular case. Facts and circumstances indicating that the Turnover Rate
for an Applicable Period is routine for the Employer favor a finding that there is no partial
termination for that Applicable Period. For this purpose, information as to the Turnover Rate
in other Applicable Periods and the extent to which Employees who Terminated Employment were
actually replaced, whether the new Employees performed the same functions, had the same job
classification or title, and received comparable Compensation are relevant to determining
whether the turnover is routine for the Employer.
	 
	 	(d)	 	Effect of Partial Termination. If a partial termination occurs on account of
turnover during an Applicable Period, then all Participants who had a Termination of
Employment during the Applicable Period must be fully Vested in the amounts credited to their
Participant’s Accounts.
	 
	 	(e)	 	Other Circumstances that May Trigger Partial Termination. A partial termination
of the Plan can also occur for reasons other than turnover. A partial termination can occur
due to Plan amendments that adversely affect the rights of Employees to Vest in benefits
under the Plan, or Plan amendments that exclude a group of Employees who have previously been
covered by the Plan.
	 
	 	(f)	 	Definitions. As used in this Section, the following words and phrases have the
following meanings:






	 	(1)	 	Applicable Period. The term “Applicable Period” means a period that
depends upon the facts and circumstances: the Applicable Period is a Plan Year (or, if a
Plan Year that is less than 12 consecutive months, then the Plan Year plus the immediately
preceding Plan Year) or a longer period if there are a series of related Terminations of
Employment.
	 
	 	(2)	 	Employer-Initiated Termination of Employment. The term “Employer-Initiated
Termination of Employment” means generally any Termination of Employment other than a
Termination of Employment on account of death, Disability, or retirement on or after
Normal Retirement Age. An Employee’s Termination of Employment is an Employer-Initiated
Termination of Employment even if it is caused by an event outside of the Employer’s
control, such as Termination of Employment due to depressed economic conditions. In
certain situations, the Employer may be able to verify that a Termination of Employment is
not an Employer-Initiated Termination of Employment; a claim that a Termination of
Employment is purely voluntary can be supported through items such as information from
personnel files, Employee statements, and other corporate records.
	 
	 	(3)	 	Turnover Rate. The term “Turnover Rate” means the percentage equal to the
number of Participants who had an Employer-Initiated Termination of Employment during the
Applicable Period, divided by the sum of (A) all Participants at the start of the
Applicable Period, plus (B) the Employees who became Participants during the Applicable
Period. All Participants are taken into account in calculating the Turnover Rate,
including Vested Participants and non Vested Participants.






	2.5	 	Code §415 Limitations Under the Final Code §415 Regulations. This Section is
effective as of the first day of the first Limitation Year beginning on or after July 1,2007 except as may otherwise be
provided herein, and this Section applies for all Plan purposes.






	 	(a)	 	Maximum Annual Addition. The maximum Annual Addition made to a Participant’s
Account maintained under the Plan for any Limitation Year will not exceed the lesser of the
Dollar Limitation set forth in paragraph (a)(I) or the Compensation Limitation set forth in
paragraph (a)(2), as adjusted in the remainder of this Section (a), as follows:






	 	(1)	 	Dollar Limitation. The Dollar Limitation is $40,000, as adjusted by the
Treasury in accordance with Code §415(d).





			
	 	 	 
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	 	(2)	 	Compensation Limitation. The Compensation Limitation is an amount equal to 100%
of the Participant’s Code §415(c)(3) Compensation for the Limitation Year. However, this
limitation will not apply to any contribution made for medical benefits within the meaning of
Code §401(h) or Code §419A(t)(2) after separation from service which is otherwise treated as
an Annual Addition under Code §415(1)(1) or Code §419A(d)(2).
	 
	 	(3)	 	Adjustments to Maximum Annual Addition. In applying the limitation on Annual
Additions set forth herein, the following adjustments must be made:






	 	(A)	 	Short Limitation Year. In a Limitation Year of less than 12 months, the
Defined Contribution Dollar Limitation in paragraph (a)(I) will be adjusted by multiplying
it by the ratio that the number of months in the short Limitation Year bears to 12.
	 
	 	(B)	 	Plans with Different Limitation Years. If a Participant participates in
multiple Defined Contribution Plans sponsored by the Employer with different Limitation
Years, the maximum Annual Addition in this Plan for the Limitation Year will be reduced by
the Annual Additions credited to the Participant’s accounts in the other plans for such
Limitation Year.
	 
	 	(C)	 	Plans with the Same Limitation Year. If a Participant participates in
multiple Defined Contribution Plans sponsored by the Employer which have the same
Limitation Year, then (i) if only one of the plans is subject to Code §412, Annual
Additions will first be credited to the Participant’s accounts in the plan so subject; and
(ii) if none of the plans are subject to Code §412, the maximum Annual Addition in this
Plan for a given Limitation Year will either [a] equal the product of the maximum Annual
Addition for such Limitation Year minus any other Annual Additions previously credited to
the Participant’s account, multiplied by the ratio that the Annual Additions which would
be credited to a Participant’s accounts hereunder without regard to the limitations
regarding the Aggregation of Plans in paragraph (b) bears to the Annual Additions for all
plans described in this paragraph, or [b] be reduced by the Annual Additions credited to
the Participant’s accounts in the other plans for such Limitation Year.
	 
	 	(D)	 	Adjustment for Excessive Annual Additions. If for any Limitation Year the
Annual Additions allocated to a Participant’s Account exceeds the maximum Annual Addition
permitted under this Section, then the Sponsoring Employer will follow the rules of any
Employee Plans Compliance Resolution System (EPCRS) that is issued by the Internal Revenue
Service.






	 	(b)	 	Aggregation of Plans. This Section (b) aggregates plans for purposes of applying
the provisions of this Section and the rules of Regulation § 1.415(t)-1.






	 	(1)	 	General Rule. Except as provided in this Section and Regulation §1.415(t)-1, for
purposes of applying the limitations of this Section and Code §415(c) applicable to a
Participant for a particular Limitation Year (A) all Defined Contribution Plans (without
regard to whether a plan has been terminated) ever maintained by the Employer (or a
predecessor Employer) under which the Participant receives Annual Additions are treated as
one Defined Contribution Plan; and (B) all 403(b) annuity contracts purchased by an Employer
(including plans purchased through salary reduction contributions) for the Participant are
treated as one 403(b) annuity contract.
	 
	 	(2)	 	Affiliated Employers and Leased Employees. All Employees of all Affiliated
Employers are treated as employed by a single Employer for Code §415 purposes. Any Defined
Contribution Plan maintained by any Affiliated Employer is deemed maintained by all
Affiliated Employers. Furthermore, under Code §414(n), with respect to any recipient for whom
a Leased Employee performs services, the Leased Employee is treated as an Employee of the
recipient, but contributions or benefits provided by the leasing organization that are
attributable to services performed for the recipient are treated as provided under the plan
maintained by the recipient. However, under Code §414(n)(5), the rule of the previous
sentence does not apply to a Leased Employee with respect to services performed for a
recipient if (A) the Leased Employee is covered by a plan that is maintained by the leasing
organization and that meets the requirements of Code §414(n)(5)(B); and (B) Leased Employees
do not constitute more than 20% of the recipient’s non-highly compensated workforce.





			
	 	 	 
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	 	(3)	 	Formerly Affiliated Plan of an Employer. A Formerly Affiliated Plan of an
Employer is taken into account for purposes of applying the aggregation rules of this Section
to the Employer, but the Formerly Affiliated Plan of an Employer is treated as if it had
terminated immediately prior to the cessation of affiliation, and had purchased annuities to
provide benefits. For purposes of this paragraph, the term “Formerly Affiliated Plan of an
Employer” means a plan that, immediately prior to the Cessation of Affiliation, was actually
maintained by one or more of the entities that constitute the Employer (as determined under
the employer affiliation rules described in Regulation §1.415(a)-I(f)(I) and (2)), and
immediately after the Cessation of Affiliation, is not actually maintained by any of the
entities that constitute the Employer (as determined under the employer affiliation rules
described in Regulation § 1.415(a)-I(f)(I) and (2)). For purposes of this paragraph, the term
“Cessation of Affiliation” means the event that causes an entity to no longer be aggregated
with one or more other entities as a single Employer under the employer affiliation rules
described in Regulation §1.415(a)-I(f)(I) and (2) (such as the sale of a subsidiary outside a
controlled group), or that causes a plan to not actually be maintained by any of the entities
that constitute the Employer under the employer affiliation rules of Regulation §
1.415(a)-I(f)(I) and (2) (such as a transfer of plan sponsorship outside of a controlled
group).
	 
	 	(4)	 	Predecessor Employer. For purposes of Code §415 and Regulations promulgated
thereunder, a former employer is a predecessor employer with respect to a Participant in the
Plan maintained by the Employer if the Employer maintains the Plan under which the
Participant had accrued a benefit while performing services for the former employer (for
example, the Employer assumed sponsorship of the former employer’s plan, or the Plan received
a transfer of benefits from the former employer’s plan), but only if that benefit is provided
under the Plan maintained by the Employer. In applying the limitations of Code §415 to a
Participant in the Plan maintained by the Employer, the Plan must take into account benefits
provided to the Participant under plans that are maintained by the predecessor employer and
that are not maintained by the Employer; the Employer and predecessor employer constituted a
single Employer under the rules described in Regulation §1.415(a)-I(f)(I) and (2) immediately
prior to the cessation of affiliation (as if they constituted two, unrelated employers under
the rules described in Regulation §1.415(a)-I(f)(I) and (2) immediately after the cessation
of affiliation) and cessation of affiliation was the event that gives rise to the predecessor
employer relationship, such as a transfer of benefits or plan sponsorship. However, with
respect to the Employer of the Participant, a former entity that antedates the Employer is a
predecessor employer with respect to the Participant if, under the facts and circumstances,
the Employer constitutes a continuation of all or a portion of the trade or business of the
former entity. This occurs where formation of the Employer constitutes a mere formal or
technical change in the employment relationship and continuity otherwise exists in the
substance and administration of the business operations of the former entity and the
Employer.
	 
	 	(5)	 	Nonduplication. In applying the limitations of Code §415 to the Plan
maintained by an Employer, if the Plan is aggregated with another plan pursuant to the
aggregation rules of this Section, then a Participant’s benefits are not counted more than
once in determining the Participant’s aggregate Annual Additions, pursuant to the rules of
Regulation § 1.415(f)-I(d)(I).
	 
	 	(6)	 	Previously Unaggregated Plans. The following rule applies to situations in
which two or more existing plans, which previously were not required to be aggregated
pursuant to Code §415(f), are aggregated during a particular Limitation Year and, as a
result, the limitations of Code §415(b) or (c) are exceeded for that Limitation Year. Two or
more Defined Contribution Plans that are not required to be aggregated pursuant to Code
§415(f) as of the first day of a Limitation Year satisfy the requirements of Code §415 with
respect to a Participant for the Limitation Year if they are aggregated later in that
Limitation Year, provided that no Annual Additions are credited to the Participant’s Account
after the date on which the plans are required to be aggregated.
	 
	 	(7)	 	Multiple Plan Fraction. The provisions of Code §415(e) shall not apply to
this Plan for Limitation Years beginning on or after January 1,2000 (or, if later, the first
day of the Limitation Year in which Code §415(e) is not applicable to the Plan in whole or in
part, pursuant to the provisions of the prior Plan document or separate Plan amendment).





			
	 	 	 
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	 	(c)	 	Definitions. As used in this Section and for all Plan purposes, the following
words and phrases have the following meanings:






	 	(1)	 	Annual Additions. The term “Annual Additions” means the sum of the following
amounts credited to a Participant’s Account for the Limitation Year:






	 	(A)	 	Amounts That Are Included. The following amounts are included as Annual
Additions: (i) Employer contributions, even if such contributions are Excess Contributions
(as described in Code §401(k)(8)(B)) or Excess Aggregate Contributions (as described in Code
§401(m)(6)(B)), or such Excess Contributions or Excess Aggregate Contributions are corrected
through distribution; (ii) Employee Contributions, including Mandatory Employee Contributions
(as defined in Code §411(c)(2)(C) and the Regulations thereunder) and Voluntary Employee
Contributions; (iii) Forfeitures; (iv) contributions allocated to any individual medical
account, as defined in Code §415(1)(2), which is part of a pension or annuity plan
established pursuant to Code §401(h) and maintained by the Employer; (v) amounts attributable
to post-retirement medical benefits allocated to a separate account for a Key Employee (any
Employee who, at any time during the plan year or any preceding plan year, is or was a Key
Employee pursuant to Code §419A(d)), maintained by the Employer; and (vi) effective as of the
first day of the first Limitation Year beginning on or after July 1, 2007, the difference
between the value of any assets transferred to the Plan and the consideration, where an
Employee or the Employer transfers assets to the Plan in exchange for consideration that is
less than the fair market value of the assets transferred to the Plan.
	 
	 	(B)	 	Amounts That Are Not Included. Notwithstanding subparagraph (A), a Participant’s
Annual Additions do not include the following: (i) the restoration of an Employee’s accrued
benefit by the Employer under Code §411(a)(3)(D) or Code §411(a)(7)(C) or resulting from the
repayment of cashouts (as described in Code §415(k)(3)) under a governmental plan (as defined
in Code §414(d)) for the Limitation Year in which the restoration occurs, regardless of
whether the Plan restricts the timing of repayments to the maximum extent allowed by Code
§411(a); (ii) Catch-Up Contributions made under Code §414(v) and Regulation §1.414(v)-I;
(iii) effective as of the first day of the first Limitation Year beginning on or after July
1, 2007, a Restorative Payment that is allocated to a Participant’s Account. For purposes of
this clause, the term “Restorative Payment” means a payment made to restore some or all of
the Plan’s losses resulting from an action (or a failure to act) by a fiduciary for which
there is reasonable risk of liability for breach of a fiduciary duty (other than a breach of
fiduciary duty arising from failure to remit contributions to the Plan) under ERISA or under
other applicable federal or state law, where Participants who are similarly situated are
treated similarly with respect to the payments. This includes payments to the Plan made
pursuant to a Department of Labor order, the Department of Labor’s Voluntary Fiduciary
Correction Program, or a court-approved settlement, to restore losses to a qualified Defined
Contribution Plan. Payments made to the Plan to make up for losses due merely to market
fluctuations and other payments that are not made on account of a reasonable risk of
liability for breach of a fiduciary duty under Title I of ERISA are not Restorative Payments
and generally constitute contributions that give rise to Annual Additions; (iv) Excess
Elective Deferrals that are distributed in accordance with Regulation §1.402(g)-I(e)(2) or
(3); (v) Rollover Contributions (as described in Code §401(a)(31), §402(c)(I), §403(a)(4),
§403(b)(8), §408(d)(3), and §457(e)(16)); (vi) repayments of loans made to a Participant from
the Plan; (vii) repayments of prior Plan distributions described in Code §411(a)(7)(B) (in
accordance with Code §411(a)(7)(C)) and Code §411(a)(3)(D) or repayment of contributions to a
governmental plan (as defined in Code §414(d)) as described in Code §415(k)(3); (viii)
Transfer Contributions from a qualified plan to a Defined Contribution Plan; (ix) the
reinvestment of dividends on Employer securities under an employee stock ownership plan
pursuant to Code §404(k)(2)(A)(iii)(II); and (x) Employee contributions to a qualified cost
of living arrangement within the meaning of Code §415(k)(2)(B).






	 	(2)	 	Code §415(c)(3) Compensation. The term “Code §415(c)(3) Compensation” means, for
the specific purposes and as elected by the Sponsoring Employer in the Election Form, either
Form W-2 Compensation, Code §3401 Compensation, Safe Harbor Code §415 Compensation, or
Statutory Code §415 Compensation during the entire Compensation Determination Period that
statutorily applies, subject to the following rules:





			
	 	 	 
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	 	(A)	 	Exclusions to Compensation Do Not Apply. Code §415(c)(3) Compensation
includes any amounts that may be excluded from Compensation for purposes of allocation
purposes.
	 
	 	(B)	 	Inclusion of Certain Amounts. Code §415(c)(3) Compensation includes any
Elective Deferral as defined in Code §402(g)(3) and any amount which is contributed or
deferred by the Employer at the election of the Employee which are not includible in gross
income by reason of Code §125 (and Deemed Code §125 Compensation), Code §132(t)(4), or Code
§457.
	 
	 	(C)	 	Treatment of Post-Severance Compensation. Effective January 1, 2005, Code
§415(c)(3) Compensation includes Post-Severance Compensation.
	 
	 	(D)	 	Code §401 (a)(17) Annual Compensation Limit. Effective as of the first day
of the first Limitation Year beginning on or after July 1, 2007, Code §415(c)(3)
Compensation for any Limitation Year shall not exceed the Code §401(a)(17) Compensation
Limit that applies to that Limitation Year. If the Limitation Year is not the calendar
year, then the Code §401(a)(17) Compensation Limit that applies to such Limitation Year is
the Code §401(a)(17) Compensation Limit in effect for the respective calendar year in which
such Limitation Year begins.
	 
	 	(E)	 	Compensation Earned in Limitation Year but Paid in Next Limitation Year. If
elected by the Sponsoring Employer in the Election Form, then effective as of the first day
of the first Limitation Year beginning on or after July 1, 2007, Code §415(c)(3)
Compensation for any Limitation Year will include any amounts earned during that Limitation
Year but not paid during that Limitation Year solely because of the timing of pay periods
and pay dates if: (i) these amounts are paid during the first few weeks of the next
Limitation Year; (ii) the amounts are included on a uniform and consistent basis with
respect to all similarly situated Employees; and (iii) no Code §415(c)(3) Compensation is
included in more than one Limitation Year.
	 
	 	(F)	 	Self-Employed Individuals. Code §415(c)(3) Compensation of a Self-Employed
Individual will be equal to his or her Earned Income, plus amounts deferred at the election
of the Self-Employed Individual that would be includible in gross income but for the rules
of Code §402(e)(3), §402(h)(I)(B), §402(k), or §457(b).






	 	(3)	 	Defined Contribution Plan. The term “Defined Contribution Plan” means a defined
contribution plan within the meaning of Code §414(i) (including the portion of a plan treated
as a defined contribution plan under the rules of Code §414(k)) that is (A) a plan described
in Code §401(a) which includes a trust which is exempt from tax under Code §501(a); (B) an
annuity plan described in Code §403(a); (C) a simplified employee pension described in Code
§408(k); (D) an arrangement which is treated as a Defined Contribution Plan for purposes of
this Section, Code §415 and the Regulations promulgated thereunder, according to the following
rules: (i) Mandatory Employee Contributions (as defined in Code §411(c)(2)(C) and Regulation
§1.411(c)-I(c)(4), regardless of whether the Plan is subject to the requirements of Code §411)
to a defined benefit plan, are treated as contributions to a Defined Contribution Plan. For
this purpose, contributions that are picked up by the Employer as described in Code §414(h)(2)
are not considered Employee Contributions; (ii) contributions allocated to any individual
medical benefit account which is part of a pension or annuity plan established pursuant to
Code §401(h) are treated as contributions to a Defined Contribution Plan pursuant to Code
§415(1)(1); (iii) amounts attributable to post-retirement medical benefits allocated to an
account established for a Key Employee (any Employee who, at any time during the plan year or
any preceding plan year, is or was a Key Employee pursuant to Code §419A(d)(I)) are treated as
contributions to a Defined Contribution Plan pursuant to Code §419A(d)(2); and (iv) Annual
Additions under an annuity contract described in Code §403(b) are treated as Annual Additions
under a Defined Contribution Plan.
	 
	 	(4)	 	Safe Harbor Code §415 Compensation. The term “Safe Harbor Code §415 Compensation”
means an Employee’s compensation determined under Regulation §1.415(c)-2(d)(2), to wit: the
Employee’s wages, salaries, fees for professional services, and other amounts received
(without regard to whether or not an amount is paid in cash) for personal services actually
rendered in the course of employment with the Employer maintaining the Plan, to the extent
that the amounts are includible in gross income (or to the extent amounts would have been
received and includible in gross income but for an election under





			
	 	 	 
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Code §125(a), 132(t)(4), 402(e)(3), 402(h)(I)(B), 402(k), or 457(b)). These amounts include, but
are not limited to, commissions paid to salespersons, compensation for services on the basis of a
percentage of profits, commissions on insurance premiums, tips, bonuses, fringe benefits, and
reimbursements or other expense allowances under a non-accountable plan as described in Regulation
§1.62-2(c); and in the case of an Employee who is an Employee within the meaning of Code §401(c)(I)
and Regulations promulgated under Code §401(c)(I), the Employee’s Earned Income (as described in
Code §401(c)(2) and Regulations promulgated under Code §401(c)(2)), plus amounts deferred at the
election of the Employee that would be includible in gross income but for the rules of Code
§402(e)(3), 402(h)(I)(B), 402(k), or 457(b); An Employee’s Safe Harbor Code §415 Compensation will
be determined in accordance with the following provisions:




	 	(A)	 	Exclusion of Certain Amounts. Safe Harbor Code §415 Compensation does not
include (1) Contributions (other than elective contributions described in Code §402(e)(3),
§408(k)(6), §408(p)(2)(A)(i), or §457(b)) made by the Employer to a plan of deferred
compensation (including a simplified employee pension described in Code §408(k) or a simple
retirement account described in Code §408(p), and whether or not qualified) to the extent
that the contributions are not includible in the gross income of the Employee for the taxable
year in which contributed. In addition, any distributions from a plan of deferred
compensation (whether or not qualified) are not considered Safe Harbor Code §415
Compensation, regardless of whether such amounts are includible in the gross income of the
Employee when distributed. However, any amounts received by an Employee pursuant to a
nonqualified unfunded deferred compensation plan are Safe Harbor Code §415 Compensation in
the year the amounts are actually received, but only to the extent such amounts are
includible in the Employee’s gross income; (2) Amounts realized from the exercise of a
nonstatutory option (which is an option other than a statutory option as defined in
Regulation §1.421-1(b)), or when restricted stock or other property held by an Employee
either becomes freely transferable or is no longer subject to a substantial risk of
forfeiture pursuant to Code §83 and Regulations promulgated under Code §83); (3) Amounts
realized from the sale, exchange, or other disposition of stock acquired under a statutory
stock option (as defined in Regulation §1.421-1(b)); (4) Other amounts that receive special
tax benefits, such as premiums for group term life insurance (but only to the extent that the
premiums are not includible in the gross income of the Employee and are not salary reduction
amounts that are described in Code §125); and (5) Other items of remuneration that are
similar to any of the items listed in clauses (1) through (4) of this paragraph.
	 
	 	(B)	 	Inclusion of Certain Amounts. Safe Harbor Code §415 Compensation includes any
Elective Deferral as defined in Code §402(g)(3) and any amount which is contributed or
deferred by the Employer at the election of the Employee which are not includible in gross
income by reason of Code §125 (and Deemed Code §125 Compensation), Code §132(t)(4), or Code
§457.
	 
	 	(C)	 	Treatment of Post-Severance Compensation. Effective January 1, 2005, Safe
Harbor Code §415 Compensation includes Post-Severance Compensation.






	 	(5)	 	Statutory Code §415 Compensation. The term “Statutory Code §415 Compensation”
means, in applying the Code §415 limits, an Employee’s compensation as determined under
Regulation §1.415(c)2(b) and (c), to wit:






	 	(A)	 	Amounts Includable. Statutory Code §415 Compensation includes remuneration
for services of the following types: (1) The Employee’s wages, salaries, fees for
professional services, and other amounts received (without regard to whether or not an amount
is paid in cash) for personal services actually rendered in the course of employment with the
Employer maintaining the Plan, to the extent that the amounts are includible in gross income
(or to the extent amounts would have been received and includible in gross income but for an
election under Code §125(a), 132(t)(4), 402(e)(3), 402(h)(I)(B), 402(k), or 457(b)). These
amounts include, but are not limited to, commissions paid to salespersons, compensation for
services on the basis of a percentage of profits, commissions on insurance premiums, tips,
bonuses, fringe benefits, and reimbursements or other expense allowances under a
nonaccountable plan as described in Regulation §1.62-2(c); (2) In the case of an Employee who
is an Employee within the meaning of Code §401(c)(I) and Regulations promulgated under Code
§401(c)(I), the Employee’s Earned Income (as described in Code §401(c)(2) and Regulations
promulgated under Code §401(c)(2)), plus amounts deferred at the election of the Employee
that would be includible in gross income but for the rules of





			
	 	 	 
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Code §402(e)(3), 402(h)(I)(B), 402(k), or 457(b); (3) Amounts described in Code §104(a)(3),
105(a), or 105(h), but only to the extent that these amounts are includible in the gross income
of the Employee; (4) Amounts paid or reimbursed by the Employer for moving expenses incurred by
an Employee, but only to the extent that at the time of the payment it is reasonable to believe
that these amounts are not deductible by the Employee under Code §217; (5) The value of a
nonstatutory option (which is an option other than a statutory option as defined in Regulation
§1.421-1(b)) granted to an Employee by the Employer, but only to the extent that the value of
the option is includible in the gross income of the Employee for the taxable year in which
granted; (6) the amount includible in the gross income of an Employee upon making the election
described in Code §83(b); and (7) Amounts that are includible in the gross income of an Employee
under the rules of Code §409A or §457(f)(I)(A) or because the amounts are constructively
received by the Employee.




	 	(B)	 	Exclusion of Certain Amounts. Statutory Code §415 Compensation does not include
(1) Contributions (other than elective contributions described in Code §402(e)(3),
§408(k)(6), §408(p)(2)(A)(i), or §457(b)) made by the Employer to a plan of deferred
compensation (including a simplified employee pension described in Code §408(k) or a simple
retirement account described in Code §408(p), and whether or not qualified) to the extent
that the contributions are not includible in the gross income of the Employee for the taxable
year in which contributed. In addition, any distributions from a plan of deferred
compensation (whether or not qualified) are not considered Statutory Code §415 Compensation,
regardless of whether such amounts are includible in the gross income of the Employee when
distributed. However, any amounts received by an Employee pursuant to a nonqualified unfunded
deferred compensation plan are Statutory Code §415 Compensation in the year the amounts are
actually received, but only to the extent such amounts are includible in the Employee’s gross
income; (2) Amounts realized from the exercise of a nonstatutory option (which is an option
other than a statutory option as defined in Regulation §1.421-1(b)), or when restricted stock
or other property held by an Employee either becomes freely transferable or is no longer
subject to a substantial risk of forfeiture pursuant to Code §83 and Regulations promulgated
under Code §83); (3) Amounts realized from the sale, exchange, or other disposition of stock
acquired under a statutory stock option (as defined in Regulation §1.421-1(b)); (4) Other
amounts that receive special tax benefits, such as premiums for group term life insurance
(but only to the extent that the premiums are not includible in the gross income of the
Employee and are not salary reduction amounts that are described in Code §125); and (5) Other
items of remuneration that are similar to any of the items listed in clauses (1) through (4)
of this paragraph.
	 
	 	(C)	 	Inclusion of Certain Amounts. Statutory Code §415 Compensation includes any
Elective Deferral as defined in Code §402(g)(3) and any amount which is contributed or
deferred by the Employer at the election of the Employee which are not includible in gross
income by reason of Code § 125 (and Deemed Code §125 Compensation), Code §132(f)(4), or Code
§457.
	 
	 	(D)	 	Treatment of Post-Severance Compensation. Effective January 1, 2005, Statutory
Code §415 Compensation includes Post-Severance Compensation.






	 	(6)	 	Post-Severance Compensation. The term “Post-Severance Compensation” means, for
Limitation Years beginning on or after July 1,2007, the following amounts that would have
been included as Code §415(c)(3) Compensation if the amounts were paid prior to the
Employee’s Termination of Employment and that are paid to the Employee by the later of 2V2
months after Termination of Employment or the end of the Limitation Year that includes the
Employee’s date of Termination of Employment:






	 	(A)	 	Regular Pay After Termination. Regular pay after Termination of Employment will
be considered Post-Severance Compensation if (i) 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 (ii) the payment would have been paid prior to
Termination of Employment if the Employee had continued in employment with the Employer.





			
	 	 	 
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	 	(B)	 	Leave Cashouts and Deferred Compensation. If elected by the
Sponsoring Employer in the Election Form, then leave cashouts and deferred compensation
will be considered Post-Severance Compensation if the amount is either (i) payment for
unused accrued bona fide sick, vacation, or other leave, but only if the Employee would
have been able to use the leave if employment had continued; or (ii) received by an
Employee pursuant to a nonqualified unfunded deferred compensation plan, but only if
the payment would have been paid to the Employee at the same time if the Employee had
continued in employment with the Employer and only to the extent that the payment is
includible in the Employee’s gross income.
	 
	 	(C)	 	Imputed Compensation when Participant Becomes Disabled. If elected
by the Sponsoring Employer in the Election Form and a Participant in a Defined
Contribution Plan becomes permanently and totally disabled as defined in Code
§22(e)(3), then notwithstanding anything in the Plan or this Section to the contrary,
Code §415(c)(3) Compensation will be imputed during the time the Participant is
permanently and totally disabled. The rate that Code §415(c)(3) Compensation will be
imputed to such Participant is equal to the rate of Code §415(c)(3) Compensation that
was paid to the Participant immediately before becoming permanently and totally
disabled. The total period in which Code §415(c)(3) Compensation will be imputed to a
Participant in the Defined Contribution Plan who becomes permanently and totally
disabled will be determined pursuant to a nondiscriminatory policy established by the
Administrator; however, if Code §415(c)(3) Compensation is imputed to a Participant who
is a Highly Compensated Employee pursuant to this paragraph, then the continuation of
any Non-Safe Harbor Non-Elective Contributions to such Participant will be for a fixed
or determinable period pursuant to Code §415(c)(3)(C).
	 
	 	(D)	 	Continuation of Compensation while in Qualified Military Service.
If elected by the Sponsoring Employer in the Election Form, then notwithstanding
anything in the Plan or this Section to the contrary, Code §415(c)(3) Compensation
includes payments by the Employer to an individual who does not currently perform
services for the Employer by reason of qualified military service (as that term is used
in Code §414(u)(I)), to the extent those payments do not exceed the amounts the
individual would have received if the individual had continued to perform services for
the Employer rather than entering qualified military service.






	2.6	 	Vesting of Non-Safe Harbor Non-Elective Contribution Accounts. If elected by
the Sponsoring Employer in the Election Form, then this Section is effective as of the first day of the first Plan Year
beginning after December 31, 2006. This Section applies to the Non-Safe Harbor Non-Elective
Contribution Accounts of the Plan, subject to the following rules and provisions:






	 	(a)	 	Participants to Whom the Post-2006 Vesting Schedule Relates. As elected by the
Sponsoring Employer in the Election Form, the Post-2006 Vesting Schedule applies to the
Non-Safe Harbor Non-Elective Contribution Account of either: (1) any Participant who completes
an Hour of Service during any Plan Year beginning after December 31, 2006; or (2) any
Participant (regardless of whether such Participant has Terminated Employment) who has a
Non-Safe Harbor Non-Elective Contribution Account balance during any Plan Year beginning after
December 31,2006 and whose Non-Safe Harbor Non-Elective Contribution Account has not become
subject to the Forfeiture provisions of the Plan prior to the first day of the first Plan Year
beginning after December 31,2006.
	 
	 	(b)	 	Account Balances to Which the Post-2006 Vesting Schedule Relates. As elected by
the Sponsoring Employer in the Election Form, the Post-2006 Vesting Schedule applies to either
(1) the entire Non-Safe Harbor Non-Elective Contribution Account; or (2) the portion of the
Non-Safe Harbor Non-Elective Contribution Account to which is allocated Non-Safe Harbor
Non-Elective Contributions, Forfeitures, and earnings for Plan Years beginning after December
31, 2006 (and subsequent earnings attributable to such allocations). The portion of the
Non-Safe Harbor Non-Elective Contribution Account to which was allocated Non-Safe Harbor
Non-Elective Contributions, Forfeitures, and earnings for Plan Years beginning prior to
January 1, 2007 (and subsequent earnings attributable to such allocations) will remain subject
to the Pre2007 Vesting Schedule without regard to this Section or the Vesting schedule
selected in the current Plan document that applies to Non-Safe Harbor Non-Elective
Contribution Accounts.





			
	 	 	 
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	 	(c)	 	Protection of Participant’s Vested Interest. This Section will not directly or
indirectly reduce a Participant’s Vested Interest in his or her Non-Safe Harbor Non-Elective
Contribution Account. Notwithstanding the foregoing, in the case of an Employee who is a
Participant as of the later of (1) the date that this Section is adopted or (2) the date that
this Section becomes effective, the Participant’s Vested Interest in his or her Non-Safe
Harbor Non-Elective Contribution Account determined as of such date will not be less than the
Participant’s Vested Interest in his or her Non-Safe Harbor Non-Elective Contribution Account
computed by using the Pre-2007 Vesting Schedule.
	 
	 	(d)	 	Participant’s Special Election. Any Participant with at least three Years of
Service or I-Year Periods of Service, as applicable, for Vesting purposes may, by filing a
written request with the Administrator, elect to have the Vested Interest in his or her
Non-Safe Harbor Non-Elective Contribution Account computed by using the Pre-2007 Vesting
Schedule. A Participant who fails to make an election will have the Vested Interest in his or
her Non-Safe Harbor Non-Elective Contribution Account computed by using the Post-2006 Vesting
Schedule. The period in which the election may be made will begin on the date that this
Section is adopted or is deemed to have been made and will end on the latest of: (1) sixty
days after this Section is adopted; (2) sixty (60) days after this Section becomes effective;
or (3) sixty days after the Participant is given written notice of this Section by the
Sponsoring Employer or Administrator. However, no election need be provided to any
Participant whose Vested percentage on and after the first day of the first Plan Year
beginning after December 31, 2006, at any time is not less than the Vested percentage
computed by using the Pre-2007 Vesting Schedule. Notwithstanding anything in this Section to
the contrary, a Participant with at least three Years of Service or I-Year Periods of
Service, as applicable, for Vesting purposes will be provided at all times with a Vested
percentage of his or her Non-Safe Harbor Non-Elective Contribution Account that is not less
than the Vested percentage of his or her Non-Safe Harbor Non-Elective Contribution Account
computed by using Post-2006 Vesting Schedule and the Vesting percentage of his or her
Non-Safe Harbor Non-Elective Contribution Account computed by using the Pre-2007 Vesting
Schedule.
	 
	 	(e)	 	Application of this Section to the Participant’s Account. If the Plan is a
profit sharing volume submitter plan, a money purchase volume submitter plan, or a target
benefit volume submitter plan, then the “Employer’s contribution” is substituted for the
“Non-Safe Harbor Non-Elective Contribution;” and the “Participant’s Account” is substituted
for the “Non-Safe Harbor Non-Elective Contribution Account” throughout this Section.
Furthermore, if the Plan had Prevailing Wage Accounts that did not comply with the Vesting
requirements of PPA§ 904 as of the first day of the first Plan Year beginning after December
31, 2006, then the “Prevailing Wage Contribution” is substituted for the “Non-Safe Harbor
Non-Elective Contribution;” and the “Prevailing Wage Account” is substituted for the
“Non-Safe Harbor Non-Elective Contribution Account” throughout this Section
	 
	 	(f)	 	Definitions. As used in this Section, the following words and phrases have the
following meanings:






	 	(1)	 	Post-2006 Vesting Schedule. The term “Post-2006 Vesting Schedule” means
the Vesting schedule that applies to the Non-Safe Harbor Non-Elective Contribution
Accounts as set forth in the Plan document.
	 
	 	(2)	 	PPA. The term “PP A” means the Pension Protection Act of 2006.
	 
	 	(3)	 	Pre-2007 Vesting Schedule. The term “Pre-2007 Vesting Schedule” means the
Vesting schedule that applied to the Non-Safe Harbor Non-Elective Contribution Accounts
which was enumerated in the prior Plan document. As elected by the Sponsoring Employer in
the Election Form, the Pre-2007 Vesting Schedule was either subparagraphs (A), (B) or (C)
below:





	 	 	 	 	 

	(A)     7 Year Graded.

	 	1 Year/Period of Service
	 	0% Vested Interest
	 

	 	2 Years/Periods of Service
	 	0% Vested Interest
	 

	 	3 Years/Periods of Service
	 	20% Vested Interest
	 

	 	4 Years/Periods of Service
	 	40% Vested Interest
	 

	 	5 Years/Periods of Service
	 	60% Vested Interest
	 

	 	6 Years/Periods of Service
	 	80% Vested Interest
	 

	 	7 Years/Periods of Service
	 	100% Vested Interest






			
	 	 	 
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	(B)     5 Year Cliff.

	 	1 Year/Period of Service
	 	0% Vested Interest
	 

	 	2 Years/Periods of Service
	 	0% Vested Interest
	 

	 	3 Years/Periods of Service
	 	0% Vested Interest
	 

	 	4 Years/Periods of Service
	 	0% Vested Interest
	 

	 	5 Years/Periods of Service
	 	100% Vested Interest







	 	(C)	 	Other. A Participant’s Non-Safe Harbor Non-Elective Contribution
Account will be Vested in accordance with the schedule selected in the Election Form,
provided that any schedule selected for a non-Top Heavy Plan Year must be at least as
favorable as either the 7 Year Graded Vesting schedule or the 5 Year Cliff Vesting
schedule of set forth in (A) or (B) above.






	2.7	 	Diversification Requirements. If all or a portion of a Participant’s Account
is invested in Employer Securities on or after the first day of the first Plan Year beginning after December 31, 2006, then this
Section is effective as of the first day of the first Plan Year beginning after December 31,
2006, and the Plan is subject to the following:






	 	(a)	 	General Divestment Provisions. Subject to paragraph (b) below, the Participant
(and the Participant’s Beneficiary who has an account in the Plan with respect to which the
Beneficiary is entitled to exercise the rights of the Participant) may elect to divest the
Participant’s Account of Employer Securities and reinvest the proceeds in alternative
investment options described in paragraph (c) below. Notice must be given to Participants
and/or Beneficiaries not later than 30 days prior to the date on which they will have the
right to divest Employer Securities. Furthermore, this paragraph applies to a Participant’s
Voluntary Employee Contribution Account, Mandatory Employee Contribution Account, and/or
Elective Deferral Account, if applicable to the Plan, without applying the restrictions of
paragraph (b).
	 
	 	(b)	 	Special Restrictions and Conditions on Employer Contributions (Other Than Elective
Deferrals). Special restrictions and conditions apply to a Participant’s Account attributable to
Employer contributions (other than a Participant’s Elective Deferral Account) that are invested
in Employer Securities:






	 	(1)	 	Individuals Who Are Affected. The individuals who will have the right to
divest a Participant’s Account of amounts attributable to Employer contributions (other
than Elective Deferrals) that are invested in Employer Securities will be limited to the
following: (A) a Participant who has completed at least three (3) Years of Service or
I-Year Periods of Service, as applicable; (B) a Beneficiary of a Participant who has
completed at least three (3) Years of Service or I-Year Periods of Service, as applicable;
and (C) a Beneficiary of a deceased Participant.
	 
	 	(2)	 	Employer Securities Acquired on or After January 1, 2007. To the extent
that all or a portion of a Participant’s Account attributable to Employer contributions
(other than a Participant’s Elective Deferral Account) consists of Employer Securities
that were acquired in a Plan Year beginning on or after January 1, 2007, the divestment
requirements will apply to the total amount of the Employer Securities acquired with such
Employer contributions.
	 
	 	(3)	 	Employer Securities Acquired Before January 1, 2007. To the extent that
all or a portion of a Participant’s Account attributable to Employer contributions (other
than a Participant’s Elective Deferral Account) consists of Employer Securities acquired
in a Plan Year beginning before January 1,2007, the divestment requirements only apply to
a portion of the Employer Securities acquired with such Employer contributions. Such
portion will be equal to 33% of such Employer Securities for the first Plan Year, 66% for
the second such Plan Year, and 100% for the third Plan Year.
	 
	 	(4)	 	Restrictions Applied Separately to Each Class of Employer Securities. The
special restrictions and conditions of this paragraph (b) will be applied separately with
respect to each class of Employer Securities held in the Participant’s Account.
Furthermore, the special restrictions and conditions of this paragraph (b) will not apply
to the extent that a Participant has attained age 55 or completed at least three (3) Years
of Service or I-Year Periods of Service, as applicable, before the first Plan Year
beginning after December 31,2005; instead, paragraph (a) will apply.





			
	 	 	 
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	 	(c)	 	Alternative Investment Options. The Plan will offer at
least three (3) investment options other than Employer Securities, to which a
Participant or, if applicable, his or her Beneficiary can direct the proceeds from the
divestment of Employer Securities. Each investment option will be diverse from the
other investment options, having materially different risk and return characteristics.
The divestment direction can be limited to periodic, reasonable opportunities no less
frequently than quarterly, in accordance with procedures set forth by the
Administrator. The Plan will not impose restrictions or conditions with respect to the
investment of Employer Securities which are not imposed on the investment of other
assets of the Plan, except as required by securities laws or other Regulations.
	 
	 	(d)	 	Definitions. As used in this Section, the term “Employer
Securities” means employer securities as defined ERISA §407(d)(I) that are readily
tradable on an established securities market.






	2.8	 	Calculation of Gap Period Income for Excess Elective Deferrals. If the Plan is
a Code §401(k) Plan, then this
Section is effective for distributions of Excess Elective Deferrals (as defined in Code
§402(g)(2)(A)) in taxable years beginning on or after January 1, 2007, and will apply to
Excess Elective Deferrals that occur in taxable years beginning on or after January 1,2006.
Excess Elective Deferrals will be adjusted for any income or loss up to the end of the Plan
Year and during the end of the Plan Year and the actual date of distribution (the “gap
period”), until repealed by any Regulation, IRS pronouncement, or statute. Any adjustment for
income or loss during the gap period will be allocated in a consistent manner to all
Participants and to all corrective distributions of Excess Elective Deferrals made for the
Plan Year, and will be the amount determined by one of the methods set forth in paragraphs
(a), (b) or (c), as elected by the Administrator:






	 	(a)	 	Method 1. The amount determined by multiplying the income or loss
allocable to the Participant’s Elective Deferrals for the taxable year and the gap
period, by a fraction, the numerator of which is the Participant’s Excess Elective
Deferrals for the taxable year and the denominator of which is the Participant’s
Elective Deferral Account balance as of the beginning of the Participant’s taxable year
plus any Elective Deferrals allocated to the Participant during the taxable year and the
gap period.
	 
	 	(b)	 	Method 2. The sum of (1) and (2) as follows: (1) the amount
determined by multiplying the income or loss allocable to the Participant’s Elective
Deferrals for the taxable year, by a fraction, the numerator of which is the
Participant’s Excess Elective Deferrals for the taxable year and the denominator of
which is the Participant’s Elective Deferral Account balance as of the beginning of the
Participant’s taxable year plus any Elective Deferrals allocated to the Participant
during such taxable year; plus (2) the amount of gap period income or loss equal to 10%
of the amount determined under clause (1) above multiplied by the number of whole months
between the end of the Participant’s taxable year and the distribution date, counting
the month of distribution if the distribution occurs after the 15th day of such month.
	 
	 	(c)	 	Method 3. The amount determined by any reasonable method of
allocating income or loss to the Participant’s Excess Elective Deferrals for the taxable
year and for the gap period, provided the method used is the same method used for
allocating income or losses to the Participant’s Account (or any sub-account of the
Participant’s Account). This Plan will not fail to use a reasonable method for computing
the income allocable to excess deferrals merely because the income allocable to such
excess deferrals is determined on a date that is no more than 7 days before the
distribution.






	2.9	 	Rollover by a Non-Spouse Designated Beneficiary. Unless an earlier date was
selected by the Sponsoring Employer
in a prior Election Form or amendment executed prior to the date this Amendment is executed,
then effective for Plan Years beginning on or after January 1, 2010, a Beneficiary who (a) is
other than the Participant’s Spouse and (b) is considered to be a Designated Beneficiary
under Code §401(a)(9)(E) (known as a “Non-Spouse Designated Beneficiary”) may establish an
individual retirement account under Code §408(a) or an individual retirement annuity under
Code §408(b) (known as an “Inherited IRA”) into which all or a portion of a death benefit (to
which such Non-Spouse Designated Beneficiary is entitled) can be transferred in a direct
trustee-to trustee transfer (a direct rollover). Notwithstanding the above, any amount
payable to a Non-Spouse Designated Beneficiary that is deemed to be a required minimum
distribution pursuant to Code §401(a)(9) may not be transferred into such Inherited IRA. The
Non-Spouse Designated Beneficiary may deposit into such Inherited IRA all or any portion of
the death benefit that is deemed to be an eligible rollover distribution (but for the fact
that the distribution is not an eligible rollover distribution because the distribution is
being paid to a Non-Spouse Designated Beneficiary). In determining the portion of such death
benefit that is considered to be a





			
	 	 	 
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Faith” Amendment
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	 	 	required minimum distribution that must be made from the Inherited IRA, the Non-Spouse
Designated Beneficiary may elect to use either the 5-year rule or the life expectancy rule,
pursuant to Regulation §1.401(a)(9)-3, Q&A-4(c). Any distribution made pursuant to this
Section is not subject to the direct rollover requirements of Code §401(a)(31), the notice
requirements of Code §402(f), or the mandatory withholding requirements of Code §3405(c). If a
Non-Spouse Designated Beneficiary receives a distribution from the Plan, then the distribution
is not eligible for the “60-day” rollover rule, which is available to a Beneficiary who is a
Spouse. If the Participant’s Non-Spouse Designated Beneficiary is a trust, then the Plan may
make a direct rollover to an IRA on behalf of the trust, provided the trust satisfies the
requirements to be a Designated Beneficiary within the meaning of Code §401(a)(9)(E). In order
to be able to roll over the distribution, the distribution otherwise must satisfy the
definition of an eligible rollover distribution. Any distribution made prior to January 1,
2010 is not subject to the direct rollover requirements of Code §401(a)(31) (including Code
§401(a)(31)(B), the notice requirements of Code §402(f) or the mandatory withholding
requirements of Code §3405(c)). If a non-spouse Beneficiary receives a distribution from the
Plan, the distribution is not eligible for a “60-day” rollover. If the Participant’s named
Beneficiary is a trust, the Plan may make a direct rollover to an individual retirement
account on behalf of the trust, provided the trust satisfies the requirements to be a
Designated Beneficiary within the meaning of Code §401(a)(9)(E).
	 
	2.10	 	Money Purchase or Target Benefit Plan In-Service Distributions. If the Plan is
either a money purchase plan or a target benefit plan and if elected by the Sponsoring
Employer in the Election Form, then this Section is effective as of the effective date elected
in the Election Form. A Participant who has attained the Age that is elected by the Sponsoring
Employer in the Election Form and who has not yet Terminated Employment may elect to receive a
distribution of his or her Vested Account Balance.
	 
	2.11	 	Qualified Default Investment Alternative. If elected by the Sponsoring Employer in
the Election Form, then Section 2.11 is effective as of the date set forth in the Election
Form. If the Plan gives Participants or Beneficiaries the opportunity to direct the investment
of any assets in the Participant’s Account (or any subaccount thereof), and if any Participant
or Beneficiary does not direct the investment of such assets, then such assets will be
invested in a Qualified Default Investment Alternative (“QDIA”), subject to the existing terms
of paragraphs (a) through (e) of Section 2.11, subject to the following provisions:






	 	(a)	 	Transfer from QDIA. Any Participant or Beneficiary on whose behalf
assets are invested in a QDIA may transfer, in whole or in part, such assets to any other
investment alternative available under the Plan with a frequency consistent with that
afforded to a Participant or Beneficiary who elected to invest in the QDIA, but not less
frequently than once within any 3-month period.






	 	(1)	 	No Fees During First 90 Days. A Participant’s or Beneficiary’s
election to make such transfer from the QDIA during the 90-day period beginning on
the date of the first investment in a QDIA on behalf of a Participant or Beneficiary
or, if the Participant has the opportunity to receive a Permissible Withdrawal, a
Permissible Withdrawal during the 90-day period beginning on the date of the
Participant’s first Elective Deferral under Code §414(w)(2)(B), will not be subject
to any restrictions, fees or expenses (including surrender charges, liquidation or
exchange fees, redemption fees and similar expenses charged in connection with the
liquidation of, or transfer from, the investment), except as permitted in Department
of Labor Regulation §2550.404c-5(c)(5)(ii)(B).
	 
	 	(2)	 	Limited Fees after First 90 Days. Following the end of the
90-day period described in paragraph (1), any transfer from the QDIA or, if the
Participant has the opportunity to receive a Permissible Withdrawal, a Permissible
Withdrawal, will not be subject to any restrictions, fees or expenses not otherwise
applicable to a Participant or Beneficiary who elected to invest in that QDIA.






	 	(b)	 	Broad Range of Investment Alternatives. The Plan must offer a “broad
range of investment alternatives” within the meaning of Department of Labor Regulation
§2550.404c-1(b )(3).
	 
	 	(c)	 	Materials Must Be Provided. A fiduciary must provide to a Participant
or Beneficiary the materials in Department of Labor Regulation
§2550.404c-1(b)(2)(i)(B)(1)(viii) and (ix) and Department of Labor Regulation §404c-1(b
)(2)(i)(B)(2) relating to a Participant’s or Beneficiary’s investment in a QDIA.





			
	 	 	 
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	 	(d)	 	Content and Timing of Notice. The following provisions apply to the notice required
by a QDIA:






	 	(1)	 	Manner and Content. Such notice must be written in a manner calculated to be
understood by the average Participant, and must contain the following: (A) a description of
the circumstances under which assets in the Participant’s Account (or any sub-account of the
Participant’s Account) of a Participant or Beneficiary may be invested on behalf of the
Participant or Beneficiary in a QDIA; and, if applicable, an explanation of the circumstances
under which Elective Deferrals will be made on behalf of a Participant, the percentage of such
Elective Deferrals, and the right of the Participant to elect not to have such Elective
Deferrals made on the Participant’s behalf (or to elect to have such Elective Deferrals made
at a different percentage); (B) an explanation of the right of Participants and Beneficiaries
to direct the investment of assets in their Participant’s Accounts (or any sub-accounts of the
Participant’s Account); (C) a description of the QDIA, including a description of the
investment objectives, risk and return characteristics (if applicable), and fees and expenses
attendant to the QDIA; (D) a description of the right of the Participants and Beneficiaries on
whose behalf assets are invested in a QDIA to direct the investment of those assets to any
other investment alternative under the Plan, including a description of any applicable
restrictions, fees or expenses in connection with such transfer; and (E) an explanation of
where the Participants and Beneficiaries can obtain investment information concerning the
other investment alternatives available under the Plan.
	 
	 	(2)	 	Timing. The Participant or Beneficiary on whose behalf an investment in a QDIA
may be made must be furnished such notice during the following periods: (A) at least 30 days
in advance of the Participant’s Entry Date of the Plan (or any component of the Plan in which
a Participant’s Account (or any subaccount of the Participant’s Account) may be invested in a
QDIA); or at least 30 days in advance of the date of any first investment in a QDIA on behalf
of a Participant or Beneficiary; or if the Participant has the opportunity to receive a
Permissible Withdrawal, on or before the Participant’s Entry Date of the Elective Deferral
component of the Plan; and (B) within a reasonable period of time of at least 30 days in
advance of each subsequent Plan Year.






	 	(e)	 	Definitions. As used in this Section, the following words and phrases have the
following meanings:






	 	(1)	 	Eligible Automatic Contribution Arrangement. The term “Eligible Automatic
Contribution Arrangement” means the definition of Section 304 of this Amendment.
	 
	 	(2)	 	Permissible Withdrawal. The term “Permissible Withdrawal” means the definition
of Section 3.5 of this Amendment.
	 
	 	(3)	 	QDIA. The term “QDIA” means a qualified default investment alternative as
described in Department of Labor Regulation § 25500404c-5, which is an investment
alternative available to Participants and Beneficiaries, subject to the following rules:






	 	(A)	 	No Employer Securities. The QDIA cannot hold or permit the acquisition of
Employer securities, except as permitted by Department of Labor Regulation
§25500404c-5(e)(I)(ii);
	 
	 	(B)	 	Transfer Permitted. The QDIA permits a Participant or Beneficiary to
transfer, in whole or in part, his or her investment from the QDIA to any other investment
alternative available under the Plan, pursuant to the rules of Department of Labor
Regulation §25500404c-5(c)(5);
	 
	 	(C)	 	Management. The QDIA is (i) managed by an investment manager, within the
meaning of ERISA §3(38), a Plan Trustee that meets the requirements of ERISA §3(38)(A),
(B) and (C), or the Sponsor Employer who is a named fiduciary within the meaning of ERISA
§402(a)(2); (ii) an investment company registered under the Investment Company Act of
1940; or (iii) an investment product or fund described in Department of Labor Regulation
§25500404c-5(e)(4)(iv) or (v).
	 
	 	(D)	 	Types of Permitted Investments. The QDIA is one of the following:






	 	(i)	 	An investment fund product or model portfolio that applies generally accepted
investment theories, is diversified so as to minimize the risk of large losses and
that is designed to provide varying degrees of long-term appreciation and capital
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	 	 	 	fixed income exposures based on the Participant’s age, target retirement date (such as
Normal Retirement Age under the Plan) or life expectancy, but is not required to take into
account risk tolerances, investments or other preferences of an individual Participant or
Beneficiary.
	 
	 	(ii)	 	An investment fund product or model portfolio that applies generally accepted
investment theories, is diversified so as to minimize the risk of large losses and that is
designed to provide long-term appreciation and capital preservation through a mix of
equity and fixed income exposures consistent with a target level of risk appropriate for
Participants of the Plan as a whole, but is not required to take into account the age,
risk tolerances, investments or other preferences of an individual Participant or
Beneficiary.
	 
	 	(iii)	 	An investment management service with respect to which a fiduciary, within the
meaning of Department of Labor Regulation §2550.404c-5(e)(3)(i), applying generally
accepted investment theories, allocates the assets of a Participant’s Account to achieve
varying degrees of long-term appreciation and capital preservation through a mix of equity
and fixed income exposures, offered through investment alternatives available under the
Plan, based on the Participant’s age, target retirement date (such as Normal Retirement
Age under the Plan) or life expectancy, but is not required to take into account risk
tolerances, investments or other preferences of an individual Participant.
	 
	 	(iv)	 	An investment product or fund designed to preserve principal and provide a reasonable
rate of return, whether or not such return is guaranteed, consistent with liquidity. Such
investment product will seek to maintain, over the term of the investment, the dollar
value that is equal to the amount invested in the product, and be offered by a State or
federally regulated financial institution. Such investment product or fund described in
this paragraph shall constitute a QDIA for not more than 120 days after the date of the
first investment; or the Participant’s first Elective Deferral as determined under Code
§414(w)(2)(B).
	 
	 	(v)	 	An investment product or fund designed to guarantee principal and a rate of return
generally consistent with that earned on intermediate investment grade bonds, while
providing liquidity for withdrawals by Participants and Beneficiaries, including transfers
to other investment alternatives. Such investment product must meet the following
requirements: [a] there are no fees or surrender charges imposed in connection with
withdrawals initiated by a Participant or Beneficiary; and [b] principal and rates of
return are guaranteed by a State or federally regulated financial institution. Such
product or fund described herein will constitute a QDIA solely for purposes of assets
invested in such product or fund before December 24, 2007.






	 	 	 	An investment fund product or model portfolio that meets the requirements of this paragraph (4)
may be offered through variable annuity or similar contracts, common or collective trust funds,
or pooled investment funds without regard to whether such contracts or funds provide annuity
purchase rights, investment guarantees, death benefit guarantees, or other features ancillary
to the investment fund product or model portfolio.






	2.12	 	Modification to Normal Retirement Age. If the Plan is either a money purchase
plan or a target benefit plan and if elected by the Sponsoring Employer in the Election Form,
then the Plan is subject to the following:






	 	(a)	 	Revised Normal Retirement Age. As elected by the Sponsoring Employer in the
Election Form, either:






	 	(1)	 	Normal Retirement Age Enumerated in Plan. The definition of “Normal Retirement
Age” as set forth in the amended and restated Plan is effective as of the date elected in the
Election Form; or
	 
	 	(2)	 	Normal Retirement Age Amended by this Section. Effective as of the date elected
in the Election Form, the Plan’s definition of “Normal Retirement Age” is amended and means,
as elected by the Sponsoring Employer in the Election Form, either:






	 	(A)	 	Age Only. The time that a Participant attains the Age that is elected by the
Sponsoring Employer in the Election Form.





			
	 	 	 
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	 	(B)	 	Age and Participation. The later of (i) the time that a Participant
attains the Age that is elected by the Sponsoring Employer in the Election Form,
or (ii) the anniversary that is elected by the Sponsoring Employer in the
Election Form of becoming a Participant in the Plan.
	 
	 	(C)	 	Age and Years/Periods of Service. The later of (i) the time that a
Participant attains the Age elected by the Sponsoring Employer in the Election
Form, or (ii) the date the Participant is credited with at least the number of
Years of Service/Periods of Service elected by the Sponsoring Employer in the
Election Form; but in no event later than the later of Age 65 or the 5th
anniversary of becoming a Participant in the Plan.
	 
	 	(D)	 	Other. The time elected in the Election Form, but in no
event later than the later of the time that a Participant attains Age 65 or the
5th anniversary of becoming a Participant in the Plan.






	 	(b)	 	Limited Exemption from Code §411(d)(6). Although either the amended
Plan or this Section, as applicable, has amended/amends the definition of “Normal
Retirement Age” to a later “Normal Retirement Age” under Regulation §1.401(a)-I(b)(2)
which may eliminate a right to an in-service distribution prior to the effective date of
the amended definition of “Normal Retirement Age,” the Plan and this Section do not
violate Code §411(d)(6) pursuant to Regulation §1.411(d)-4, Q&A-12 with respect to
in-service distributions.
	 
	 	(c)	 	No Exemption from Other Code Provisions. The Plan and this Section are
not exempt from the requirements of Code §411(a)(1O) (if this Section changes the Plan’s
vesting rules) and/or Code §411(d)(6) (other than elimination of the right to an
in-service distribution prior to the amended Normal Retirement Age). If elected by the
Sponsoring Employer in the Election Form, then the Plan is amended by the additional
provision(s) as elected by the Sponsoring Employer in the Election Form.






	2.13	 	Mid-Year Changes Permitted for Safe Harbor 401(k) Plan. If the Plan is a Safe
Harbor 401(k) Plan, then the Plan will continue to satisfy the requirements of Code
§401(k)(12) and will continue to be a Safe Harbor 401(k) Plan even if mid-year design changes
are implemented to permit Roth Elective Deferrals or to amend the definition of financial
hardship distributions under Notice 2007-7, Part III. This Section does not implement such
mid-year design changes but only confirms the continuing status of the Plan as a Safe Harbor
401(k) Plan should such mid-year Plan design changes occur pursuant to IRS Announcement
2007-59.





Article 3

Post-EGTRRA Provisions Initially Effective 2008





	3.1	 	Elimination of Gap Period Income for Excess Contributions. If the Plan is a 401(k) plan, then effective for
Plan Years beginning on or after January 1,2008, Excess Contributions will be adjusted for any
income or loss up to the last day of the Plan Year, without regard to the gap period (the
period between the end of the Plan Year and the date of distribution) or any adjustment for
income or loss during the gap period.
	 
	3.2	 	Elimination of Gap Period Income for Excess Aggregate Contributions. If the
Plan is a 401(k) Plan, then
effective for Plan Years beginning on or after January 1, 2008, Excess Aggregate Contributions
will be adjusted for any income or loss up to the last day of the Plan Year, without regard to
the gap period (the period between the end of the Plan Year and the date of distribution) or
any adjustment for income or loss during the gap period.
	 
	3.3	 	Elimination of Gap Period Income for Excess Elective Deferrals. If the Plan is
a Code §401(k) Plan, then
notwithstanding Section 2.8 of this Amendment to the contrary, Excess Elective Deferrals (as
defined in Code §402(g)(2)(A)) which are distributed with respect to the 2008 Plan Year, or
with respect to any later Plan Year, will be adjusted for any income or loss up to the last
day of the Plan Year to which the distribution relates, without regard to the gap period (the
period between the end of the Plan Year and the date of distribution) or any adjustment for
income or loss during the gap period.





			
	 	 	 
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	3.4	 	Qualified Automatic Contribution Arrangement. If elected by the Sponsoring
Employer in the Election Form,
this Section establishes/memorializes a Qualified Automatic Contribution Arrangement (“QACA”)
and is effective as of the date elected in the Election Form, and the Plan is subject to the
following provisions:






	 	(a)	 	QACA Contribution Requirement. The Employer will make a QACA Contribution as
elected by the Sponsoring Employer in the Election Form, to the Participants as elected by the
Sponsoring Employer in the Election Form. The QACA Contribution is subject to the following
rules and provisions:






	 	(1)	 	Rules of QACA Matching Contribution. If the QACA Contribution is satisfied with a
QACA Matching Contribution, then the ratio of QACA Matching Contributions to Elective
Deferrals of any Participant who is a Highly Compensated Employee must not exceed the ratio of
QACA Matching Contributions to Elective Deferrals of any Participant who is a Non-Highly
Compensated Employee with Elective Deferrals at the same percentage of Compensation as any
Highly Compensated Employee. Also, the ratio of a Participant’s QACA Matching Contributions to
the Participant’s Elective Deferrals may not increase as the amount of a Participant’s
Elective Deferrals increases.
	 
	 	(2)	 	Plan to Which QACA Contribution Will Be Made. As elected by the Sponsoring
Employer in the Election Form, the QACA Contribution will be made to either (A) this Plan; or
(B) another plan as elected by the Sponsoring Employer in the Election Form, so long as that
other plan meets the requirements of Code §401(k)(12)(F) and the Regulations thereunder.
	 
	 	(3)	 	QACA Contribution Subject to Withdrawal Restrictions. The QACA Contribution is
subject to the withdrawal restrictions set forth in Code §40 1 (k)(2)(B) and Regulation §
1.40 l(k)-1 (d).
	 
	 	(4)	 	QACA Contribution Must Not Be Used for Permitted Disparity Purposes. The QACA
Contribution will be met without regard to Code §401(1); furthermore, the QACA Contribution
will not be taken into account for purposes of Code §401(1).
	 
	 	(5)	 	Compensation for QACA Contribution Purposes. The term “Compensation” means, for
purposes of the QACA Contribution, an Employee’s Form W -2 Compensation, Code §3401
Compensation, or Safe Harbor Code §415 Compensation, as elected by the Sponsoring Employer in
the Election Form, for the Compensation Determination Period as elected by the Sponsoring
Employer in the Election Form, subject to the following provisions:






	 	(A)	 	Treatment of Elective Deferrals and Certain Other Amounts. Any Elective
Deferral as defined in Code §402(g)(3) and any amount which is contributed or deferred by
the Employer at the election of the Employee which are not includible in gross income by
reason of Code § 125 (and if elected in the in the Election Form, Deemed Code §125
Compensation), Code §132(t)(4), or Code §457 will be included in Compensation or will be
excluded from Compensation, as elected by the Sponsoring Employer in the Election Form.
	 
	 	(B)	 	Compensation Prior to Becoming a Participant. If the Sponsoring Employer
elects in the Election Form that Compensation received prior to becoming a Participant is
not taken in account for purposes of the QACA Contribution, then the Entry Date when an
Eligible Employee becomes a Participant in the Elective Deferral component of the Plan set
forth in Section 2.2 of the Plan will be used to determined the Entry Date when an Eligible
Employee becomes a Participant for purposes of the QACA Contribution.
	 
	 	(C)	 	Compensation of Self-Employed Individuals. For purposes of the QACA
Contribution, the Compensation of a Self-Employed Individual is equal to his or her Earned
Income; however, such Compensation will not exceed the Code §401(a)(17) Compensation Limit.
	 
	 	(D)	 	Code §401(a)(17) Compensation Limit. In determining Compensation for
purposes of the QACA Contribution, a Participant’s Compensation for any Compensation
Determination Period will not exceed the Code §401(a)(17) Compensation Limit.





			
	 	 	 
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	 	(E)	 	Compensation for QACA Contribution Must Comply With Code §414(s).
Compensation for QACA Contribution purposes excludes the amounts, if any,
elected by the Sponsoring Employer in the Election Form. However, such Compensation
must qualify as a nondiscriminatory definition of compensation under Code §414(s) and
the Regulations thereunder. Furthermore, no dollar limit, other than the Code
§401(a)(17) Compensation Limit, applies to the Compensation of a NHCE.






	 	(b)	 	Vesting of QACA Contribution Account. A Participant’s Vested Interest in a QACA
Contribution Account will be determined by the Vesting schedule elected by the Sponsoring
Employer in the Election Form. If the Counting of Hours Method is used for Vesting purposes,
then a Participant’s Vested Interest will be based on the Years of Service that are credited
to such Participant. If the Elapsed Time Method is used for Vesting purposes, then a
Participant’s Vested Interest will be based on the I-Year Periods of Service that are
credited to the Participant. If elected by the Sponsoring Employer in the Election Form, then
in determining a Participant’s Vested Interest under this paragraph, a Participant’s Years of
Service or I-Year Periods of Service will be disregarded: (1) during any period for which the
Employer did not maintain this Plan or a predecessor plan; (2) if the Counting of Hours
Method is used for Vesting purposes, then before the Vesting Computation Period in which the
Participant attains Age 18; and/or (3) if the Elapsed Time Method is used for Vesting
purposes, then before the I-Year Period of Service in which the Participant attains Age 18.
The Vesting schedules available in the Election Form are:






	 	(1)	 	100% Full and Immediate. A Participant’s QACA Contribution Account will be
100% Vested upon the Participant entering the Elective Deferral component of Plan and at
all times thereafter.
	 
	 	(2)	 	2 Year Cliff.      1 Year/Period of Service                   0% Vested Interest


                        2 Years/Periods of Service            100% Vested Interest
	 
	 	(3)	 	Other. A Participant’s QACA Contribution Account will be Vested in
accordance with the schedule selected in the Election Form, provided that the
Participant’s QACA Contribution Account is 100% Vested upon the Participant being credited
with at least 2 Years/I-Year Periods of Service.






	 	(c)	 	Usage of Forfeitures. If the QACA Contribution is subject to a Vesting schedule
other than 100% Vested upon the Participant entering the Elective Deferral component of Plan
and at all times thereafter, then with respect to any Forfeiture of the non-Vested Interest
in a Participant’s QACA Contribution Account, the Administrator may elect to use all or a
portion of the Forfeitures to pay administrative expenses incurred by the Plan. The portion
that is not used to pay administrative expenses may be used to restore previous Forfeitures
of Participants’ Accounts as necessary and permitted pursuant to the provisions of the Plan.
As elected by the Sponsoring Employer in the Election Form, the portion of the Forfeitures
that are not used to pay administrative expenses and are not used to satisfy the provisions
of the previous sentence then either: (1) will be used to reduce any Employer contribution or
combination of Employer contributions, as determined by the Administrator; or (2) will be
added to any Employer contribution or combination of Employer contributions, as determined by
the Administrator.
	 
	 	(d)	 	Exemption from ADP Test. Notwithstanding anything in the Plan or this Amendment
to the contrary, the Plan will be treated as meeting the ADP Test as set forth in Code
§401(k)(3)(A)(ii) in any Plan Year in which the Plan includes a Qualified Automatic
Contribution Arrangement pursuant to PPA §902(a), which added Code §401(k)(13)(A).
	 
	 	(e)	 	Limited Exemption from ACP Test. Notwithstanding anything in the Plan or this
Amendment to the contrary, the Plan will be treated as having satisfied the ACP Test under
Code §401(m)(2) only with respect to the QACA Matching Contributions in any Plan Year in
which the Plan includes a Qualified Automatic Contribution Arrangement pursuant to PPA
§902(b), which revised Code §401(m)(12).
	 
	 	(0 	 	Limited Exemption from Top Heavy. Notwithstanding anything in the Plan or this
Amendment to the contrary, with respect to any Plan Year in which the allocations of the Plan
consist solely of (1) Elective Deferrals under a Qualified Automatic Contribution Arrangement
which meets the requirements of Code §401(k)(13); and (2) either (A) QACA Non-Elective
Contributions which meet the requirements of Code §401(k)(13), or (B) QACA Matching
Contributions which meet the requirements of Code §401(m)(12), then the Plan will not be
treated as a Top Heavy





			
	 	 	 
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	 	 	 	Plan and is exempt from the Top Heavy requirements of Code §416. Furthermore, if the Plan (but
for the prior sentence) would be treated as a Top Heavy Plan because the Plan is a member of
either a Required Aggregation Group which is a Top Heavy or a Permissive Aggregation Group
which is a Top Heavy, then the QACA Contributions under this Plan may be taken into account in
determining whether any other plan in either the Required Aggregation Group or the Permissive
Aggregation Group meets the Top Heavy requirements of Code §416.
	 
	 	(g)	 	QDIA. If (1) a Participant or Beneficiary has the opportunity to direct the
investment of the assets in his or her Elective Deferral Account (and/or any other assets in
the Participant’s Account (or any sub-account) that the Participant or Beneficiary can direct
the investment); (2) any Participant or Beneficiary does not direct the investment of the
assets described in clause (1); and (3) the Sponsoring Employer elects in the Election Form
that the provisions of Section 2.11 (QDIA) apply to the Plan, then the assets described in
clause (1) will be invested in a QDIA pursuant to Section 2.11 of this Amendment.
	 
	 	(h)	 	Permissible Withdrawal. If (1) a Participant or Beneficiary has the opportunity
to direct the investment of the assets in his or her Elective Deferral Account; (2) the
Sponsoring Employer elects in the Election Form that the provisions of Section 2.11 (QDIA)
apply to the Plan; and (3) the Sponsoring Employer elects in the Election Form that the
provisions of Section 3.6 (Permissible Withdrawal) apply to the Plan, then an Eligible
Participant may elect to receive a Permissible Withdrawal pursuant to Section 3.6 hereof.
	 
	 	(i)	 	Definitions. As used in this Section, the following words and phrases have the
following meanings:






	 	(1)	 	Automatic Contribution Arrangement. The term “Automatic Contribution
Arrangement” means any arrangement under which (A) a Participant may elect to have the
Employer make payments as Elective Deferrals under the Plan on his or her behalf, or to
receive such payments directly in cash, and (B) an Eligible Participant is treated as
having elected to have the Employer make Elective Deferrals to the Plan, in an amount equal
to a specified percentage of Compensation until such Eligible Participant executes an
Automatic Contribution Overriding Election as defined in the administrative policy
regarding Elective Deferrals; such percentage is set forth in either the administrative
policy regarding Elective Deferrals or such other Plan documentation as permitted by the
Plan or law. An Automatic Contribution Arrangement includes a QACA.
	 
	 	(2)	 	Eligible Participant. The term “Eligible Participant” means a Participant
who is subject to the Qualified Automatic Contribution Arrangement as described in the
administrative policy regarding Elective Deferrals.
	 
	 	(3)	 	Permissible Withdrawal. The term “Permissible Withdrawal” means the
definition of Section 3.6 of this Amendment.
	 
	 	(4)	 	PPA. The term “PP A” means the Pension Protection Act of 2006.
	 
	 	(5)	 	QACA Contribution. The term “QACA Contribution” means either a QACA
Matching Contribution or a QACA Non-Elective Contribution.
	 
	 	(6)	 	QACA Contribution Account. The term “QACA Contribution Account” means the
account to which a Participant’s QACA Contributions are credited.
	 
	 	(7)	 	QACA Matching Contribution. The term “QACA Matching Contribution” means a
Matching Contribution which meet the requirements of Code §401(m)(12).
	 
	 	(8)	 	QACA Non-Elective Contribution. The term “QACA Non-Elective Contribution”
means a NonElective Contribution which meet the requirements of Code §401(k)(13).
	 
	 	(9)	 	QDIA. The term “QDIA” means the definition of Section 2.11 of this Amendment.





			
	 	 	 
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	 	(10)	 	Qualified Automatic Contribution Arrangement. The term “Qualified Automatic
Contribution Arrangement” means an Automatic Contribution Arrangement that meets all of the
requirements set forth in Code §401(k)(13)(B) including, but not limited to, the applicable
Qualified Percentage for the Applicable Plan Year (which terms are defined in the
administrative policy regarding Elective Deferrals), the required QACA Contributions, and
the applicable notice requirements.






	3.5	 	Eligible Automatic Contribution Arrangement. If elected by the Sponsoring
Employer in the Election Form,
then this Section establishes/memorializes an Eligible Automatic Contribution Arrangement in
the Plan and is effective as of the date elected in the Election Form, and the Plan is
subject to the following:






	 	(a)	 	Extension of Time for Correcting Failed ADP and/or ACP Test. Notwithstanding
anything in the Plan or this Amendment to the contrary, in any Plan Year in which the Plan
includes an Eligible Automatic Contribution Arrangement, the excise tax in Code §4979 on
Excess Contributions and/or Excess Aggregate Contributions does not apply to the Employer if
the Excess Contributions and/or Excess Aggregate Contributions (and earnings attributable
thereto) are distributed or forfeited (based upon the Participant’s Vested Interest in such
Excess Contributions and/or Excess Aggregate Contributions) within 6 months after the end of
the Plan Year. Any Excess Contributions and/or Excess Aggregate Contributions (and earnings
attributable thereto) that are distributed within this 6-month period are treated as earned
and received by the Participant in the Participant’s taxable year in which the distribution
was made. Only income or loss through the end of the Plan Year to which the Excess
Contributions and/or Excess Aggregate Contributions relate must be distributed, without regard
to any income or loss during the “gap period” (the period between the end of the Plan Year and
the date of distribution).
	 
	 	(b)	 	Mandatory Directed Investments and QDIA. In order for an Eligible Automatic
Contribution Arrangement to be established/memorialized in the Plan, the Plan must give
Participants or Beneficiaries the opportunity to direct the investment of his or her Elective
Deferral Account (and may permit Participants or Beneficiaries to direct the investment of
other assets in the Participant’s Account (or any sub-account of the Participant’s Account)).
If any Participant or Beneficiary does not direct the investment of the assets described in
the first sentence, then those assets must be invested in a QDIA pursuant to Section 2.11 of
this Amendment.
	 
	 	(c)	 	Permissible Withdrawal. If the Sponsoring Employer elects in the Election Form
that the provisions of Section 3.5 (Permissible Withdrawal) apply to the Plan, then an
Eligible Participant may elect to receive a Permissible Withdrawal pursuant to Section 3.6 of
this Amendment.
	 
	 	(d)	 	Definitions. As used in this Section, the following words and phrases have the
following meanings:






	 	(1)	 	Automatic Contribution Arrangement. The term “Automatic Contribution
Arrangement” means any arrangement under which (A) a Participant may elect to have the
Employer make payments as Elective Deferrals on his or her behalf, or to receive such
payments directly in cash, and (b) an Eligible Participant is treated as having elected to
have the Employer make Elective Deferrals to the Plan, in an amount equal to a specified
percentage of Compensation until such Eligible Participant executes an Automatic
Contribution Overriding Election as defined in the administrative policy regarding Elective
Deferrals; such percentage is set forth in either the administrative policy regarding
Elective Deferrals or such other Plan documentation as permitted by the Plan or law. An
Automatic Contribution Arrangement includes an Eligible Automatic Contribution Arrangement.
	 
	 	(2)	 	Eligible Automatic Contribution Arrangement. The term “Eligible Automatic
Contribution Arrangement” means an Automatic Contribution Arrangement that meets all of the
requirements of Code §414(w)(3) including, but limited to, a QDIA and the applicable notice
requirements.
	 
	 	(3)	 	Eligible Participant. The term “Eligible Participant” means a Participant
who is subject to the Eligible Automatic Contribution Arrangement as described in the
Elective Deferral administrative policy.
	 
	 	(4)	 	Permissible Withdrawal. The term “Permissible Withdrawal” means the
definition of Section 3.6 of this Amendment.





			
	 	 	 
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	 	(5)	 	QDIA. The term “QDIA” means the definition of Section 2.11 of this Amendment.






	3.6	 	Eligible Participant’s Election for Permissible Withdrawal. If (a) elected by
the Sponsoring Employer in the
Election Form and (b) the Plan has an Eligible Automatic Contribution Arrangement, then this
Section is effective as of the date elected in the Election Form. Alternatively, if (a)
elected by the Sponsoring Employer in the Election Form; (b) the Plan has a Qualified
Automatic Contribution Arrangement; (c) a Participant or Beneficiary has the opportunity to
direct the investment of the assets in his or her Elective Deferral Account; and (d) the
Sponsoring Employer elects in the Election Form that the provisions of Section 2.11 (QDIA)
apply to the Plan, then this Section is effective as of the effective date elected in the
Election Form. The Plan permits an Eligible Participant to elect to receive a Permissible
Withdrawal, subject to the following:






	 	(a)	 	Includable in Gross Income. The amount of such Permissible Withdrawal is includible
in the gross income of the Eligible Participant for the taxable year of the Eligible Participant in
which the distribution is made.
	 
	 	(b)	 	No Premature Distribution Excise Tax. No premature distribution excise tax will
be imposed under Code §72(t) with respect to the Permissible Withdrawal.
	 
	 	(c)	 	Distribution Restrictions Not Violated. The Plan does not violate the
distribution restrictions of Code §401(k)(2)(B)(i) with respect to Elective Deferrals, even
though the Plan allows Permissible Withdrawals.
	 
	 	(d)	 	Matching Contributions Forfeited. If a Permissible Withdrawal is made to an
Eligible Participant and such Elective Deferrals are matched, then any related Matching
Contributions will be forfeited or subject to such other treatment as the Treasury may
prescribe.
	 
	 	(e)	 	Definitions. As used in this Section, the following words and phrases have the
following meanings:






	 	(1)	 	Eligible Automatic Contribution Arrangement. The term “Eligible Automatic
Contribution Arrangement” means the definition of Section 3.4 of this Amendment.
	 
	 	(2)	 	Eligible Participant. The term “Eligible Participant” means a Participant
who is subject to either the Qualified Automatic Contribution Arrangement or the Eligible
Automatic Contribution Arrangement, as applicable, as described in the administrative
policy regarding Elective Deferrals.
	 
	 	(3)	 	Permissible Withdrawal. The term “Permissible Withdrawal” means any
withdrawal of Elective Deferrals from either the Qualified Automatic Contribution
Arrangement or the Eligible Automatic Contribution Arrangement, as applicable, which meets
the following requirements:






	 	(A)	 	Employee’s Election and Timing. The distribution is made pursuant
to an election by an Eligible Participant, and such election is made no later than 90
days after the date of the first Elective Deferral with respect to the Eligible
Participant under either the Qualified Automatic Contribution Arrangement or the
Eligible Automatic Contribution Arrangement, as applicable;
	 
	 	(B)	 	Only Elective Deferrals and Earnings. The distribution consists of
only Elective Deferrals (and earnings attributable thereto);
	 
	 	(C)	 	Amount of Distribution. The amount of the distribution is equal to
the amount of Elective Deferrals made with respect to the first payroll period to
which either the Qualified Automatic Contribution Arrangement or the Eligible
Automatic Contribution Arrangement, as applicable, applies to the Eligible Participant
and any succeeding payroll period beginning before the effective date of the election
pursuant to paragraph (A) (and earnings attributable thereto).






	 	(4)	 	QDIA. The term “QDIA” means the definition of Section 2.11 of this Amendment.
	 
	 	(5)	 	Qualified Automatic Contribution Arrangement. The term “Qualified
Automatic Contribution Arrangement” means the definition of Section 3.4 of this Amendment.





			
	 	 	 
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	3.7	 	Qualified Optional Survivor Annuity. If the Plan is (a) a money purchase plan,
(b) a target benefit plan, (c) a 401(k)
Plan in which either the Normal Form of Distribution is a Qualified Joint and Survivor Annuity
or an Optional Form of Distribution is annuities, or (d) a profit sharing plan in which either
the Normal Form of Distribution is a Qualified Joint and Survivor Annuity or an Optional Form
of Distribution is annuities, then this Section is effective as of first day of the first Plan
Year beginning after December 31, 2007 and the Plan is to subject to the following rules and
provisions:






	 	(a)	 	Election to Waive. Unless a mandatory cash-out of benefits is permitted and
occurs under the Plan, subject to the Spousal consent requirements of the Plan and provided
the required written explanations of paragraph (b) are given, each Participant (1) may elect
at any time during the Applicable Election Period to waive the Qualified Joint and Survivor
Annuity form of benefit or the Qualified Pre-Retirement Survivor Annuity form of benefit (or
both); (2) if the Participant elects a waiver under subparagraph (1) above, may elect the
Qualified Optional Survivor Annuity at any time during the Applicable Election Period; and (3)
may revoke any such election at any time during the Applicable Election Period.
	 
	 	(b)	 	Written Explanations. The Plan will provide to each Participant, within a
reasonable period of time before the Annuity Starting Date and consistent with Regulations, a
written explanation of: (1) the terms and conditions of the Qualified Joint and Survivor
Annuity and the Qualified Optional Survivor Annuity; (2) the Participant’s right to make and
the effect of an election to waive the Qualified Joint and Survivor Annuity form of benefit;
(3) the rights of a Participant’s Spouse; and (4) the right to make, and the effect of, a
revocation of a previous election to waive the Qualified Joint and Survivor Annuity.
	 
	 	(c)	 	Definitions. As used in this Section, the following words and phrases have the
following meanings:






	 	(1)	 	Applicable Election Period. The term “Applicable Election Period” means
the period described in Code §417(a)(6), to wit: with respect to an election to waive the
Qualified Joint and Survivor Annuity, the period that begins not later than 180 days prior
to the Annuity Starting Date (unless future guidance requires/permits otherwise).
	 
	 	(2)	 	Applicable Percentage. The term “Applicable Percentage” means the
following: (A) if the Survivor Annuity Percentage is less than 75%, then the Applicable
Percentage is 75%; and (B) if the Survivor Annuity Percentage is greater than or equal to
75%, then the Applicable Percentage is 50%.
	 
	 	(3)	 	Qualified Optional Survivor Annuity. The term “Qualified Optional Survivor
Annuity” means an annuity (A) for the life of the Participant with a survivor annuity for
the life of the Participant’s Spouse which is equal to the Applicable Percentage of the
amount of the annuity which is payable during the joint lives of the Participant and the
Participant’s Spouse; and (B) which is the actuarial equivalent of a single annuity for
the life of the Participant. Such term also includes any annuity in a form having the
effect of an annuity described in this Section.
	 
	 	(4)	 	Survivor Annuity Percentage. The term “Survivor Annuity Percentage” means
the percentage which the survivor annuity under the Plan’s Qualified Joint and Survivor
Annuity bears to the annuity payable the joint lives of the Participant and the
Participant’s Spouse.





			
	 	 	 
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