Filed by Bowne Pure Compliance





Exhibit 10.32




DYNEGY NORTHEAST GENERATION, INC.




SAVINGS INCENTIVE PLAN




As Amended and Restated

Effective January 1, 2009




 


 









 







TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	I. Definitions and Construction
	 	 	2	 
	1.1 Definitions
	 	 	2	 
	1.2 Number and Gender
	 	 	10	 
	1.3 Headings
	 	 	10	 
	1.4 Construction
	 	 	10	 
	 
	 	 	 	 
	II. Participation
	 	 	10	 
	2.1 Eligibility
	 	 	10	 
	2.2 Participation
	 	 	11	 
	2.3 Correction for Erroneous Inclusion of Employee
	 	 	11	 
	 
	 	 	 	 
	III. Contributions
	 	 	11	 
	3.1 Before-Tax Contributions
	 	 	11	 
	3.2 After-Tax Contributions
	 	 	14	 
	3.3 Employer Matching Contributions
	 	 	15	 
	3.4 Employer Discretionary Qualified Matching Contributions
	 	 	15	 
	3.5 Restrictions on Employer Matching Contributions and After-Tax Contributions
	 	 	16	 
	3.6 Return of Contributions
	 	 	16	 
	3.7 Disposition of Excess Deferrals and Excess Contributions
	 	 	17	 
	3.8 Rollover Contributions
	 	 	19	 
	 
	 	 	 	 
	IV. Allocations and Limitations
	 	 	20	 
	4.1 Allocation of Contributions
	 	 	20	 
	4.2 Application of Forfeitures
	 	 	21	 
	4.3 Valuation of Accounts
	 	 	21	 
	4.4 Limit on Annual Additions Under Code Section 415:
	 	 	22	 
	4.5 Recharacterizations
	 	 	22	 
	 
	 	 	 	 
	V. Investment Funds
	 	 	23	 
	5.1 Investment of Accounts
	 	 	23	 
	5.2 Pass-Through Voting and Other Rights with Respect to Company Stock
	 	 	23	 
	 
	 	 	 	 
	VI. Retirement Benefits
	 	 	24	 
	 
	 	 	 	 
	VII. Disability Benefits
	 	 	24	 
	 
	 	 	 	 
	VIII. Pre-Retirement Termination Benefits and Determination of Vested Interest
	 	 	24	 
	8.1 No Benefits Unless Herein Set Forth
	 	 	24	 
	8.2 Pre-Retirement Severance from Employment Benefit
	 	 	24	 
	8.3 Determination of Vested Interest
	 	 	25	 






 


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	 	 	Page	 
	 
	 	 	 	 
	IX. Death Benefits
	 	 	25	 
	9.1 Death Benefits
	 	 	25	 
	9.2 Designation of Beneficiaries
	 	 	25	 
	 
	 	 	 	 
	X. Time and Form of Payment of Benefits
	 	 	26	 
	10.1 Determination of Benefit Commencement Date
	 	 	26	 
	10.2 Form of Payment and Payee
	 	 	27	 
	10.3 Direct Rollover Election
	 	 	27	 
	10.4 Unclaimed Benefits
	 	 	27	 
	10.5 Minimum Distribution Requirements
	 	 	28	 
	 
	 	 	 	 
	XI. In-Service Withdrawals
	 	 	32	 
	11.1 In-Service Withdrawals
	 	 	32	 
	11.2 Restriction on In-Service Withdrawals
	 	 	34	 
	 
	 	 	 	 
	XII. Loans
	 	 	34	 
	 
	 	 	 	 
	XIII. Administration of the Plan
	 	 	35	 
	13.1 General Administration of the Plan
	 	 	35	 
	13.2 Records and Procedures
	 	 	35	 
	13.3 Meetings
	 	 	36	 
	13.4 Self-Interest of Participants
	 	 	36	 
	13.5 Compensation and Bonding
	 	 	36	 
	13.6 Committee Powers and Duties
	 	 	36	 
	13.7 Employer to Supply Information
	 	 	37	 
	13.8 Temporary Restrictions
	 	 	37	 
	13.9 Idemnification
	 	 	38	 
	13.10 Claims Procedures
	 	 	38	 
	 
	 	 	 	 
	XIV. Trustee and Administration of Trust Fund
	 	 	42	 
	14.1 Trust Agreement
	 	 	42	 
	14.2 Payment of Expenses
	 	 	42	 
	14.3 Trust Fund Property
	 	 	43	 
	14.4 Distributions from Participants’ Accounts
	 	 	43	 
	14.5 Payments Solely from Trust Fund
	 	 	43	 
	14.6 No Benefits to the Employer
	 	 	43	 
	 
	 	 	 	 
	XV. Fiduciary Provisions
	 	 	43	 
	15.1 Article Controls
	 	 	43	 
	15.2 General Allocation of Fiduciary Duties
	 	 	43	 
	15.3 Delegation and Allocation of Fiduciary Duties
	 	 	44	 
	15.4 Investment Manager
	 	 	44	 
	15.5 Independent Fiduciary
	 	 	44	 
	 
	 	 	 	 
	XVI. Amendments
	 	 	46	 
	16.1 Right to Amend
	 	 	46	 
	16.2 Limitation on Amendments
	 	 	46	 






 


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	 	 	Page	 
	 
	 	 	 	 
	XVII. Discontinuance of Contributions, Termination, Partial Termination, and Merger or Consolidation
	 	 	46	 
	17.1 Right to Discontinue Contributions, Terminate, or Partially Terminate
	 	 	46	 
	17.2 Procedure in the Event of Discontinuance of Contributions, Termination,
or Partial Termination
	 	 	47	 
	17.3 Merger, Consolidation, or Transfer
	 	 	48	 
	 
	 	 	 	 
	XVIII Participating Employers
	 	 	48	 
	18.1 Participation and Designation of Other Employers
	 	 	48	 
	18.2 Single Plan
	 	 	49	 
	 
	 	 	 	 
	XIX. Miscellaneous Provisions
	 	 	49	 
	19.1 Not Contract of Employment
	 	 	49	 
	19.2 Spendthrift Clause
	 	 	49	 
	19.3 Uniformed Services, Employment and Reemployment Rights Act Requirements
	 	 	51	 
	19.4 Payments to Minors and Incompetents
	 	 	51	 
	19.5 Acquisition and Holding of Company Stock
	 	 	51	 
	19.6 Power of Attorney Designations
	 	 	51	 
	19.7 Participant’s and Beneficiary’s Address
	 	 	51	 
	19.8 Incorrect Information, Fraud, Concealment, or Error
	 	 	51	 
	19.9 Severability
	 	 	52	 
	19.10 Jurisdiction
	 	 	52	 
	 
	 	 	 	 
	XX. Top-Heavy Status
	 	 	52	 
	20.1 Article Controls
	 	 	52	 
	20.2 Definitions
	 	 	52	 
	20.3 Top-Heavy Status
	 	 	53	 
	20.4 Top-Heavy Contribution
	 	 	54	 
	20.5 Termination of Top Heavy Status
	 	 	55	 
	20.6 Effect of Article
	 	 	55	 






Appendix A Participating Employers

Appendix B Loan Policy





 


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DYNEGY NORTHEAST GENERATION, INC. SAVINGS INCENTIVE PLAN





WITNESSETH:



WHEREAS, Dynegy Inc., a Delaware corporation (“Dynegy”), has heretofore adopted the DYNEGY
NORTHEAST GENERATION, INC. SAVINGS INCENTIVE PLAN, hereinafter referred to as the “Plan,” for the
benefit of the eligible employees of Dynegy Northeast Generation, Inc.; and



WHEREAS, Dynegy desires to restate the Plan, intending thereby to provide an uninterrupted and
continuing program of benefits;



NOW, THEREFORE, the Plan is hereby restated in its entirety as follows with no interruption in
time, effective as of January 1, 2009, except as otherwise indicated herein:


 


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I. Definitions and Construction




1.1 Definitions. Where the following words and phrases appear in the Plan, they shall
have the respective meanings set forth below, unless their context clearly indicates to the
contrary.




(1) Account(s): A Participant’s After-Tax Account, Before-Tax Account, Employer
Contribution Account, Employer Discretionary Qualified Matching Contribution Account,
Rollover Contribution Account, Roth Account, and/or Catch-Up Contribution Account, including
the amounts credited thereto and any subaccounts thereof.




(2) Act: The Employee Retirement Income Security Act of 1974, as amended.




(3) After-Tax Account: An individual account for each Participant, which is
credited with (i) all After-Tax Contributions held in such account on the Effective Date,
and (ii) all amounts of After-Tax Contributions that are deferred and/or accrued after the
Effective Date. Such Account shall also be adjusted to reflect changes in value as provided
in Section 4.3.




(4) After-Tax Contributions: Contributions made to the Plan by a Participant in
accordance with Section 3.2.




(5) Before-Tax Account: An individual account for each Participant, which is
credited with (i) all Before-Tax Contributions made by the Employer on such Participant’s
behalf in such account on the Effective Date, (ii) all amounts of Before-Tax Contributions
deferred and/or accrued after the Effective Date, and (iii) the Employer Discretionary
Qualified Matching Contributions, if any, made on such Participant’s behalf pursuant to
Section 3.5 to satisfy the restrictions set forth in Section 3.1(e) in such account. Such
Account shall also be adjusted to reflect changes in value as provided in Section 4.3.




(6) Before-Tax Contributions: Contributions made to the Plan by the Employer on
a Participant’s behalf in accordance with the Participant’s elections to defer Compensation
under the Plan’s qualified cash or deferred arrangement as described in Section 3.1.




(7) Benefit Commencement Date: With respect to each Participant or
beneficiary, the date such Participant’s or beneficiary’s benefit is paid to him from the
Trust Fund as determined in accordance with Section 10.1.




(8) Catch-Up Contribution Account: A individual account for each Participant
which is credited with Catch-Up Contributions made in accordance with Section 3.1(h) of the
Plan. Such Account shall also be adjusted to reflect changes in value as provided in
Section 4.3.


 


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(9) Catch-Up Contributions: Contributions made to the Plan by the Employer on a
Participant’s behalf in accordance with Plan Section 3.1(h).




(10) Code: The Internal Revenue Code of 1986, as amended.




(11) Committee: The Dynegy Inc. Benefit Plans Committee appointed to administer
the Plan, which is comprised of those individuals who are serving on the Dynegy Inc. Benefit
Plans Committee immediately prior to April 2, 2007, as well as any individual who becomes a
member of the Dynegy Inc. Benefit Plans Committee pursuant to Section 13.1 of the Plan,
until any such individual ceases to be a member of the Dynegy Inc. Benefit Plans Committee
pursuant to Section 13.1 of the Plan.




(12) Company: Dynegy Inc., a Delaware corporation, and any successor thereto.




(13) Company Stock: The Class A common stock, $0.01 par value, of the Company.




(14) Company Stock Fund: An Investment Fund established to invest in Company
Stock and such reserves of cash or cash equivalents as are necessary to meet the liquidity
needs of the fund.




(15) Compensation: The regular or base salary or wages (but (i) including
regular or base salary or wages paid during a military leave of absence, and (ii) excluding
overtime payments and bonuses (other than that described below)) paid by the Employer to or
for the benefit of a Participant for services rendered or labor performed for the Employer
while a Participant and an Eligible Employee, provided that the following items shall be
included as “Compensation:”




(A) Any amounts subject to a deferral election pursuant to Section 3.1 of the
Plan;




(B) Elective contributions made on a Participant’s behalf by the Employer that
are not includible in income under Sections 125, 402(e)(3), 402(h), or 403(b) of the
Code and any amounts that are not includible in the gross income of a Participant
under a salary reduction agreement by reason of the application of Section 132(f) of
the Code;




(C) Compensation deferred under an eligible deferred compensation plan within
the meaning of Section 457(b) of the Code;




(D) Employee contributions described in Section 414(h) of the Code that are
picked up by the employing unit and are treated as employer contributions; and




(E) If a Participant is scheduled to work a 12 hour shift, the regularly
scheduled overtime will be included as Compensation, and is calculated by
multiplying his straight time hourly rate of pay by the number of 12 hour shift
regularly scheduled overtime hours for which he is paid, but excluding any other
contributions or benefits under this Plan or any other pension, profit sharing,
insurance, hospitalization or other plan or policy maintained by an Employer for the
benefit of such Participant, bonuses, overtime, commissions, and all other
extraordinary and unusual payments.


 


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Notwithstanding the foregoing, the Compensation of any Participant taken into account for
purposes of the Plan shall be limited to $245,000 for any Plan Year with such limitation to
be (i) adjusted automatically to reflect any amendments to Section 401(a)(17) of the Code
and any cost-of-living increases authorized by Section 401(a)(17) of the Code, and (ii)
prorated for a Plan Year of less than twelve months and to the extent otherwise required by
applicable law.




(16) Compensation Committee: The Compensation and Human Resources Committee of
the Board of Directors of the Company.




(17) Controlled Entity: Each corporation that is a member of a controlled group
of corporations, within the meaning of Section 414(b) of the Code, of which the Employer is
a member, each trade or business (whether or not incorporated) with which the Employer is
under common control within the meaning of Section 414(c) of the Code, and each member of an
affiliated service group, within the meaning of Section 414(m) of the Code, of which the
Employer is a member.




(18) Direct Rollover: A payment by the Plan to an Eligible Retirement Plan
designated by a Distributee.




(19) Directors: The Board of Directors of the Company.




(20) Distributee: Each (i) Participant entitled to an Eligible Rollover
Distribution, (ii) Participant’s surviving spouse with respect to the interest of such
surviving spouse in an Eligible Rollover Distribution, and (iii) former spouse of a
Participant who is an alternate payee under a qualified domestic relations order, as defined
in Section 414(p) of the Code, with regard to the interest of such former spouse in an
Eligible Rollover Distribution. Notwithstanding the previous sentence, effective January 1,
2008, a Distributee shall also include a nonspouse beneficiary, but only with regard to the
Participant’s interest under the Plan.




(21) Effective Date: January 1, 2009, as to this restatement of the Plan,
except (i) as otherwise indicated in specific provisions of the Plan, and (ii) that
provisions of the Plan required to have an earlier effective date by applicable statute
and/or Regulation shall be effective as of the required effective date in such statute
and/or Regulation, and shall have apply, as of such required effective date, to any plan
merged into this Plan.




 


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(22) Eligible Employee: Each Employee other than:



(A) An Employee whose terms and conditions of employment are governed by a
collective bargaining agreement, unless such agreement provides for his coverage
under the Plan,




(B) A nonresident alien,




(C) A Leased Employee,




(D) An individual who is deemed to be an Employee pursuant to Treasury
Regulations issued under Section 414(o) of the Code; and




(E) An individual who is hired by an Employer on or after April 3, 2008 and who
is covered by that certain Memorandum of Agreement between Dynegy Northeast
Generation, Inc. and Local Union 320 of the International Brotherhood of Electrical
Workers, dated March 26, 2008, as ratified on April 3, 2008.




Notwithstanding any provision of the Plan to the contrary, no individual who is designated,
compensated, or otherwise classified or treated by the Employer as an independent contractor
or other non-common law employee shall be eligible to become a Participant in the Plan. It
is expressly intended that individuals not treated as common law employees by the Employer
are to be excluded from Plan participation even if a court or administrative agency
determines that such individuals are common law employees.




(23) Eligible Retirement Plan: Any of (i) an individual retirement account
described in Section 408(a) of the Code, (ii) an individual retirement annuity described in
Section 408(b) of the Code, (iii) an annuity plan described in Section 403(a) of the Code,
(iv) a qualified plan described in Section 401(a) of the Code, which under its provisions
does, and under applicable law may, accept a Distributee’s Eligible Rollover Distribution,
(v) an annuity contract described in Section 403(b) of the Code, and (vi) an eligible plan
under Section 457(b) of the Code which is maintained by a state, political subdivision of a
state, or agency or instrumentality of a state or political subdivision of a state and which
agrees to separately account for the amounts transferred into such plan from the Plan, and
(vii) effective January 1, 2008, a Roth IRA described in Section 408A(b) of the Code. The
definition of Eligible Retirement Plan shall also apply in the case of a distribution to a
surviving spouse or to a spouse or former spouse who is an alternate payee under a qualified
domestic relations order, as defined in Code Section 414(p).




Notwithstanding the foregoing, effective January 1, 2008, in the case of an Eligible
Rollover Distribution to a beneficiary who is a designated beneficiary as defined in Section
401(a)(9)(E) of the Code and is not a surviving spouse, an Eligible Retirement Plan is
limited to an individual retirement account or individual retirement annuity established for
purposes of receiving the distribution that is treated as an inherited account under Section
402(c)(11) of the Code. If the designated beneficiary is a trust, an Eligible Retirement
Plan is limited to an individual retirement account created on behalf of the trust that
satisfies the requirements to be a designated beneficiary within the meaning of Section
401(a)(9)(E) of the Code.


 


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(24) Eligible Rollover Distribution: With respect to a Distributee, any
distribution of all or any portion of the Accounts of a Participant other than (i) a
distribution that is one of a series of substantially equal periodic payments (not less
frequently than annually) made for the life (or life expectancy) of the Distributee or the
joint lives (or joint life expectancies) of the Distributee and the Distributee’s designated
beneficiary or for a specified period of ten years or more, (ii) a distribution to the
extent such distribution is required under Section 401(a)(9) of the Code, (iii) the portion of
a distribution that is not includible in gross income (determined without regard to the
exclusion for net unrealized appreciation with respect to employer securities), (iv) a loan
treated as a distribution under Section 72(p) of the Code and not excepted by Section
72(p)(2) of the Code, (v) a loan in default that is a deemed distribution, (vi) any
corrective distribution provided in Sections 3.7 and 4.4(c), (vi) a distribution pursuant to
Section 11.1(c), and (vii) any other distribution so designated by the Internal Revenue
Service in revenue rulings, notices, and other guidance of general applicability.




Notwithstanding the foregoing or any other provision of the Plan, a portion of a
distribution shall not fail to be an Eligible Rollover Distribution merely because the
portion consists of after-tax employee contributions which are not includible in gross
income; provided, however, that such portion may be transferred only to an individual
retirement account or annuity described in Section 408(a) or (b) of the Code or to a
qualified defined contribution plan described in Section 401(a) or 403(a) of the Code that
agrees to separately account for amounts so transferred, including separately accounting for
the portion of such distribution which is includible in gross income and the portion of such
distribution which is not so includible.




Notwithstanding the foregoing or any other provision of the Plan, an Eligible Rollover
Distribution to a nonspouse beneficiary is not subject to the direct rollover requirements
of Section 401(a)(31) of the Code, the notice requirements of Section 402(f) of the Code or
the mandatory withholding requirements of Section 3405(c) of the Code. If a nonspouse
beneficiary receives an Eligible Rollover Distribution from the Plan, the distribution is
not eligible for a “60-day” rollover.




(25) Employee: Each individual employed by the Employer (as reported in the
Employer’s payroll records and for whom the Employer has FICA taxes withheld) and each
Leased Employee.




(26) Employer: Dynegy Northeast Generation, Inc. and each entity listed on
Appendix A that has been designated to participate in the Plan pursuant to the provisions of
Article XVIII. The Company is not an Employer.


 


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(27) Employer Contribution Account: An individual account for each
Participant, which is credited with (i) all of the Participant’s Employer Contributions on
the Effective Date, and (ii) all additional Employer Contributions contributed and/or
accrued after the Effective Date. The Employer Contribution Account shall also be adjusted
to reflect such Account’s changes in value as provided in Section 4.3.




(28) Employer Contributions: The total of Employer Matching Contributions and
Employer Discretionary Qualified Matching Contributions.




(29) Employer Discretionary Qualified Matching Contribution Account: An
individual account for each Participant which is credited with the Employer Discretionary
Qualified Matching Contributions, if any, made pursuant to Section 3.4, as adjusted to
reflect changes in value as provided in Section 4.3.




(30) Employer Discretionary Qualified Matching Contributions: Contributions
made to the Plan by the Employer pursuant to Section 3.4.




(31) Employer Matching Contributions: Contributions made to the Plan by the
Employer pursuant to Section 3.3.




(32) 415 Compensation: Compensation as defined in Section 415(c)(3) of the
Code and the Treasury Regulations issued pursuant thereto.




(33) Highly Compensated Employee: Each Employee who performs services during
the Plan Year for which the determination of who is highly compensated is being made (the
“Determination Year “) and who:




(A) Is a five-percent owner of the Employer (within the meaning of Section
416(i)(1)(A)(iii) of the Code) at any time during the Determination Year or the
twelve-month period immediately preceding the Determination Year (the “Look-Back
Year”); or




(B) For the Look-Back Year—




(1) Receives compensation (within the meaning of Section 414(q)(4) of
the Code; “compensation” for purposes of this Paragraph) in excess of
$110,000 (with such amount to be adjusted automatically to reflect any
cost-of-living adjustments authorized by Section 414(q)(1) of the Code)
during the Look-Back Year; and




(2) If the Committee elects the application of this clause in such
Look-Back Year, is a member of the top 20% of Employees for the Look-Back
Year (other than Employees described in Section 414(q)(5) of the Code)
ranked on the basis of compensation received during the year.




For purposes of the preceding sentence, (i) all employers aggregated with the Employer under
Section 414(b), (c), (m), or (o) of the Code shall be treated as a single employer and (ii)
a former Employee who had a separation year (generally, the Determination Year such Employee
separates from service) prior to the Determination Year and who was an active Highly
Compensated Employee for either such separation year or any Determination Year ending on or
after such Employee’s fifty-fifth birthday shall be deemed to be a Highly Compensated
Employee. To the extent that the provisions of this Paragraph are inconsistent or conflict
with the definition of a “highly compensated employee” set forth in Section 414(q) of the
Code and the Treasury Regulations thereunder; the relevant terms and provisions of Section
414(q) of the Code and the Treasury Regulations thereunder shall govern and control.


 


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(34) Independent Fiduciary: The person or entity acting with respect to the
Company Stock Fund as provided in Section 15.5.




(35) Investment Fund: Investment funds made available from time to time for the
investment of Plan assets as described in Article V.




(36) Leased Employee: Each person who is not an employee of the Employer or a
Controlled Entity but who performs services for the Employer or a Controlled Entity pursuant
to an agreement (oral or written) between the Employer or a Controlled Entity and any
leasing organization, provided that (i) such person has performed such services for the
Employer or a Controlled Entity or for related persons (within the meaning of Section
144(a)(3) of the Code) on a substantially full-time basis for a period of at least one year,
and (ii) such services are performed under primary direction or control by the Employer or a
Controlled Entity.




(37) Normal Retirement Date: The date a Participant attains the age of
sixty-five.




(38) Participant: Each individual who (i) has met the eligibility requirements
for participation in the Plan pursuant to Article II, or (ii) has made a Rollover
Contribution in accordance with Section 3.8, but only to the extent provided in Section 3.8.
For purposes of Article V and Section 19.6 only, the beneficiary of a deceased Participant
and any alternate payee under a qualified domestic relations order (as defined in Section
19.2) shall have the rights of a Participant.




(39) Plan: The Dynegy Northeast Generation, Inc. Savings Incentive Plan, as
amended from time to time.




(40) Plan Year: The twelve-consecutive month period commencing January 1 of
each year.




(41) Rollover Contribution Account. An individual account for a Participant,
which is comprised of the following subaccounts:




(A) Employee After-Tax Rollover Subaccount: A subaccount for such
Participant that is credited with (i) the balance of his Rollover Contributions
consisting of after-tax employee contributions on the Effective Date, if any, and
(ii) any additional Rollover Contributions consisting of after-tax employee
contributions. A Participant’s Employee After-Tax Rollover Subaccount shall be
adjusted to reflect changes in value as provided in Section 4.3.


 


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(B) Employee Rollover Subaccount: A subaccount for such Participant
that is credited with (i) the balance of his Employee Rollover Subaccount on the
Effective Date, and (ii) any additional Rollover Contributions consisting of amounts
other than after-tax employee contributions and Roth Contributions. A Participant’s
Employee Rollover Subaccount shall be adjusted to reflect changes in value as
provided in Section 4.3.




(C) Employee Roth Rollover Subaccount: A subaccount for such
Participant that is credited with (i) the balance of his Employee Roth Rollover
Subaccount on the Effective Date, and (ii) any additional Rollover Contributions
consisting of Roth Contributions. A Participant’s Employee Roth Rollover Subaccount
shall be adjusted to reflect changes in value as provided in Section 4.3.




(42) Rollover Contributions: Contributions made by an Eligible Employee
pursuant to Section 3.8.




(43) Roth Account: An individual account for each Participant which is
credited with Roth Contributions, if any, made in accordance with Section 3.1(i) of the
Plan. Such Account shall also be adjusted to reflect changes in value as provided in
Section 4.3.




(44) Roth Contributions: Contributions made by a Participant pursuant to
Section 3.1(i).




(45) Severance from Employment: The term “Severance from Employment” shall have
the same meaning as set forth in Treasury Regulation Section 1.401(k)-1(d). A Severance from
Employment occurs when the Participant ceases to be an Employee of an Employer maintaining
the Plan. An Employee does not have a Severance from Employment if, in connection with a
change of employment, the Employee’s new employer maintains such Plan with respect to the
Employee. For example, if a new employer maintains the Plan with respect to an Employee by
continuing or assuming sponsorship of the Plan or by accepting a transfer of Plan assets and
liabilities (within the meaning of Section 414(1) of the Code) with respect to the Employee
such Employee does not have a Severance from Employment.




(46) Total and Permanent Disability: A Participant shall be considered totally
and permanently disabled if (i) the Participant has been determined to be disabled by the
Social Security Administration, and (ii) the Participant is receiving payment of social
security disability benefits.




(47) Trust: The trust(s) established under the Trust Agreement(s) to hold and
invest contributions made under the Plan and income thereon, and from which the Plan
benefits are distributed.




 


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(48) Trust Agreement: The agreement(s) entered into between the Company and the
Trustee establishing the Trust, as such agreement(s) may be amended from time to time.




(49) Trust Fund: The funds and properties held pursuant to the provisions of
the Trust Agreement for the use and benefit of the Participants, together with all income,
profits, and increments thereto.




(50) Trustee: The trustee or trustees qualified and acting under the Trust
Agreement at any time.



1.2 Number and Gender. Wherever appropriate herein, words used in the singular shall
be considered to include the plural and words used in the plural shall be considered to include the
singular. The masculine gender, where appearing in the Plan, shall be deemed to include the
feminine gender.



1.3 Headings. The headings of Articles and Sections herein are included solely for
convenience, and if there is any conflict between such headings and the text of the Plan, the text
shall control.



1.4 Construction. It is intended that the Plan be qualified within the meaning of
section 401(a) of the Code and that the Trust be tax exempt under Section 501(a) of the Code, and
all provisions herein shall be construed in accordance with such intent.



II. Participation




2.1 Eligibility. Individuals hired on or after the Effective Date shall not be
eligible to become a Participant in the Plan. Notwithstanding the foregoing:




(a) An individual who was a Participant in the Plan on the day prior to the Effective
Date shall remain a Participant of this restatement thereof as of the Effective Date;




(b) An Employee who has not become a Participant in the Plan because he was not an
Eligible Employee shall be eligible to become a Participant in the Plan as soon as
administratively feasible following his becoming an Eligible Employee as a result of a
change in his employment status; and




(c) A Participant who ceases to be an Eligible Employee but remains an Employee shall
continue to be a Participant but, on and after the date he ceases to be an Eligible
Employee, he shall no longer be entitled to defer Compensation hereunder, make contributions
to the Plan, or share in allocations of Employer Contributions unless and until he shall
again become an Eligible Employee.


 


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2.2 Participation. Participation in the Plan is voluntary. By electing to make
contributions to the Plan, a Participant agrees to be bound by the terms and conditions of the
Plan. Any Eligible Employee may become a Participant by following the procedures prescribed by the
Committee within the time limits prescribed by the Committee. Any Eligible Employee who does not
become a Participant upon becoming eligible pursuant to Section 2.1 may become a Participant on the
first day of any subsequent payroll period by timely following the procedures prescribed by the
Committee.



2.3 Correction for Erroneous Inclusion of Employee. If in any Plan Year, any Employee
who should be omitted as a Participant is erroneously included and discovery of such inclusion is
not made until after a contribution has been made and allocated, any erroneous Before-Tax
Contributions, Catch-Up Contributions, Roth Contributions, and After-Tax Contributions and
attributable earnings thereon will be returned to the Employee as soon as practicable after the
discovery of the error. Any Employer Contributions (an any earnings thereon) shall be forfeited as
soon as practicable after the discovery of the error.



III. Contributions




3.1 Before-Tax Contributions.




(a) A Participant may elect to defer an integral percentage of not less than 1% (or
such other percentage as may be established by the Committee from time to time) of his
Compensation by having the Employer contribute the amount so deferred to the Plan. A
Participant’s election to defer an amount of his Compensation pursuant to this Section shall
be made by authorizing his Employer, in the manner prescribed by the Committee, to reduce
his Compensation, in the elected amount and the Employer, in consideration thereof, agrees
to contribute an equal amount to the Plan. The Compensation elected to be deferred by a
Participant for a payroll period pursuant to this Section shall become a part of the
Employer’s Before-Tax Contributions for such payroll period and shall be allocated in
accordance with Section 4.1(a). Compensation for a payroll period not so deferred by a
Participant shall be received by such Participant in cash.




Such elections cannot relate to Compensation that is currently available prior to the
adoption or effective date of the Plan. In addition, except for occasional, bona fide
administrative considerations, contributions made pursuant to such an election cannot
precede the earlier of (i) the performance of services relating to the contribution and (ii)
when the Compensation that is subject to the election would be currently available to the
Participant in the absence of an election to defer. Such election can only be made with
respect to amounts that are compensation as defined under Section 415(c)(3) of the Code and
Treasury Regulation Section 1.415(c)-2. A Participant who is not in Qualified Military
Service (as defined in Section 414(u) of the Code) cannot make an election with respect to
an amount paid after the Participant’s Severance from Employment, unless the amount is paid
within 21/2 months following the Participant’s Severance from Employment and is described in
Treasury Regulation Section 1.415(c)-2(e)(3)(ii). For clarification purposes, the preceding
sentence shall permit elections to apply to: (i) amounts earned prior to a Severance from
Employment, and (ii) payments of sick leave
and/or vacation pay paid to a Participant as soon as administratively feasible following
Severance from Employment.


 


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(b) A Participant’s deferral election shall remain in force and effect for all periods
following the effective date of such election (which shall be as soon as administratively
feasible after the election is made) until modified or terminated or until such Participant
terminates his employment or ceases to be an Eligible Employee. A Participant who has
elected to defer a portion of his Compensation may change his deferral election percentage,
effective as of the date established by the Committee by communicating such new deferral
election percentage to his Employer in the manner and within the time period prescribed by
the Committee.




(c) A Participant may cancel his deferral election, effective as of the date
established by the Committee by communicating such cancellation in the manner and within the
time period prescribed by the Committee. A Participant who so cancels his deferral election
may resume deferrals, effective as of the date established by the Committee by communicating
his new deferral election to his Employer in the manner and within the time period
prescribed by the Committee.




(d) In restriction of the Participants’ elections provided in Paragraphs (a), (b), and
(c) above, the Before-Tax Contributions and the elective deferrals (within the meaning of
Section 402(g)(3) of the Code) under all other plans, contracts, and arrangements of the
Employer on behalf of any Participant for any calendar year shall not exceed $16,500 for
calendar year 2009 (with such amount to be adjusted automatically to reflect any
cost-of-living adjustments authorized by Section 402(g)(4) of the Code).




(e) In further restriction of the Participants’ elections provided in Paragraphs (a),
(b), and (c) above, it is specifically provided that one of the actual deferral percentage
tests set forth in Section 401(k)(2) of the Code and Treasury Regulations thereunder (“ADP
Test”) must be met in each Plan Year. Such testing shall utilize the current year testing
method as such term is defined under Treasury Regulation Section 1.401(k)-2(a)(2)(ii). The
actual deferral ratio (as such term is defined under Treasury Regulation Section 1.401(k)-6)
(“ADR”) of any Participant who is a Highly Compensated Employee for the Plan Year and who is
eligible to have Before-Tax Contributions (and Employer Discretionary Qualified Matching
Contributions, if treated as elective contributions for purposes of the ADP Test) allocated
to such Participant’s accounts under two (2) or more cash or deferred arrangements described
in Section 401(k) of the Code, that are maintained by an Employer (or a Controlled Entity),
shall be determined as if such elective contributions (and, if applicable, such Qualified
Matching Contributions) were made under a single arrangement. If a Highly Compensated
Employee participates in two (2) or more cash or deferred arrangements of the Employer or a
Controlled Entity that have different Plan Years, then all elective contributions made
during the Plan Year being tested under all such cash or deferred arrangements shall be
aggregated, without regard to the plan years of the other plans. Notwithstanding the
foregoing, certain plans shall be treated as separate if mandatorily disaggregated under the
Regulations of Section 401(k) of the Code.


 


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(f) If the Committee determines that a reduction of Compensation deferral elections
made pursuant to Paragraphs (a), (b) and (c) above is necessary to insure that the
restrictions set forth in Paragraph (d) or (e) above are met for any Plan Year, the
Committee may reduce the elections of affected Participants on a temporary and prospective
basis in such manner as the Committee shall determine.




(g) As soon as administratively feasible following the end of each payroll period, but
no later than the time required by applicable law, the Employer shall contribute to the
Trust, as Before-Tax Contributions with respect to each Participant, an amount equal to the
amount of Compensation elected to be deferred, pursuant to Paragraphs (a) and (b) and above
(as adjusted pursuant to Paragraph (f) above), by such Participant during such payroll
period. Such contributions, as well as the contributions made pursuant to Sections 3.3, and
3.4, shall be made without regard to current or accumulated profits of the Employer.
Notwithstanding the foregoing, the Plan is intended to qualify as a profit sharing plan for
purposes of Sections 401(a), 402, 412, and 417 of the Code.




(h) All Participants who are eligible to make elective deferrals under this Plan and
who have attained age 50 before the close of the Plan Year shall be eligible to make
Catch-Up Contributions in accordance with, and subject to the limitations of, Section 414(v)
of the Code. Such Catch-Up Contributions shall not be taken into account for purposes of the
provisions of the Plan implementing the required limitations of Sections 402(g) and 415 of
the Code. The Plan shall not be treated as failing to satisfy the provisions of the Plan
implementing the requirements of Sections 401(k)(3), 401(k)(11), 401(k)(12), 410(b), or 416
of the Code, as applicable, by reason of the making of such Catch-Up Contributions.
Notwithstanding any other provision of the Plan, Catch-Up Contributions shall not be matched
by Employer Contributions. Any Catch-Up Contribution made as a Roth Contribution under
Section 3.1(i) shall be treated as a Roth Contribution for purposes of allocation,
distribution and investment.




(i) Each Participant may elect to have some or all of his or her Before-Tax
Contribution, as a whole percentage of Compensation, and some or all of any Catch-Up
Contribution, contributed to the Plan as a Roth Contribution. A Roth Contribution means any
Before-Tax Contribution that is (i) designated irrevocably by the Participant at the time of
execution of the applicable payroll deduction authorization form; supplied by the Employer
as a Roth Contribution, (ii) treated by the Employer as included in the Participant’s income
at the time the Participant would have received the amount in cash if the Participant had
not made the election with respect to such Roth Contribution so that the Roth Contribution
shall be wages subject to applicable withholding requirements, and (iii) maintained by the
Plan in a separate, designated Roth Account. Roth Contributions shall be subject to the same
dollar limits and nondiscrimination testing requirements as Before-Tax Contributions, and
shall be subject to the same Plan provisions as Before-Tax Contributions for purposes of
investment and distribution. Notwithstanding the preceding, Roth Contributions are not
eligible for Employer Matching Contributions under Section 3.3.


 


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3.2 After-Tax Contributions.




(a) If the Before-Tax Contributions to be made with respect to a Participant are
restricted by the limitations set forth in Section 3.1(d) for a calendar year, then,
automatically and without any further action by such Participant, such Participant’s
Compensation shall continue to be reduced by the lesser of 5% or the percentage elected by
the Participant and then in effect pursuant to Section 3.1(a), (b), or (c) for the remainder
of such year but on an after-tax basis with such reductions to be contributed to the Plan as
his After-Tax Contributions. Effective as of the first day of the following Plan Year,
automatically and without any further action by the Participant, such Participant’s
Compensation reduction election as then in effect under this Paragraph (a), as adjusted
pursuant to Paragraphs (c), (d) and (e) below, shall revert to an election to defer
Compensation pursuant to Section 3.1(a).




(b) Without limiting the applicability of Paragraph (a) above, a Participant may
contribute to the Plan, as his After-Tax Contributions an integral percentage of from 1% to
5% (or such other percentage as may be established by the Committee from time to time) of
his Compensation. After-Tax Contributions shall be made by authorizing the Employer to
withhold such contributions from the Participant’s Compensation with respect to each payroll
period. Each Participant may elect the amount of his After-Tax Contributions in the manner
and within the time period prescribed by the Committee.




(c) A Participant may change the amount of his After-Tax Contributions pursuant to
Paragraph (a) and/or (b) above effective as of the next available pay date by electing a new
After-Tax Contribution percentage in the manner and within the time period prescribed by the
Committee.




(d) A Participant may suspend his After-Tax Contributions pursuant to Paragraph (a)
and/or (b) above effective as of the next available pay date in accordance with the
procedures and within the time period prescribed by the Committee. Resumption of suspended
After-Tax Contributions shall be made effective as of the next available pay date by making
a new election in the manner and within the time period prescribed by the Committee;
provided, however, that a Participant may not resume his After-Tax Contributions pursuant to
Paragraph (a) above once such After-Tax Contributions have been suspended pursuant to this
Paragraph.




(e) If the restrictions set forth in Section 3.5 would not otherwise be met for any
Plan Year, the After-Tax Contribution elections made pursuant to Paragraphs (a), (b), (c),
and (d) above of affected Participants may be reduced by the Committee on a temporary and
prospective basis in such manner as the Committee shall determine.




(f) As soon as administratively feasible following the end of each payroll period, but
in any event no later than the time required by applicable law, the Employer shall
contribute to the Trust the After-Tax Contributions withheld from the Participants’
Compensation during such payroll period.


 


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3.3 Employer Matching Contributions.




(a) With respect to each payroll period, the Employer shall contribute to the Trust, as
Employer Matching Contributions, an amount that equals 50% of the Before-Tax Contributions
that were made pursuant to Section 3.1 (excluding Roth Contributions pursuant to Section
3.1(i)) on behalf of each of the Participants whose terms and conditions of employment are
not governed by a collective bargaining agreement and that were not in excess of 8% of each
such Participant’s Compensation for such payroll period.




(b) With respect to each payroll period, the Employer shall contribute to the Trust, as
Employer Matching Contributions, an amount that equals 50% of the Before-Tax Contributions
that were made pursuant to Section 3.1 (excluding Roth Contributions pursuant to Section
3.1(i)) on behalf of each of the Participants whose terms and conditions of employment are
governed by a collective bargaining agreement during such payroll period and that were not
in excess of 6% of each such Participant’s Compensation for such payroll period.



3.4 Employer Discretionary Qualified Matching Contributions. In addition to the
Employer Matching Contributions made pursuant to Section 3.3, for each Plan Year, the Employer, in
its discretion, may contribute to the Trust as an Employer Discretionary Qualified Matching
Contribution for such Plan Year the amounts necessary to cause the Plan to satisfy the restrictions
set forth in Section 3.1(e) (with respect to certain restrictions on Before-Tax Contributions) and
the amounts necessary to cause the Plan to satisfy the restrictions set forth in Section 3.5 (with
respect to certain restrictions on Employer Matching Contributions and After-Tax Contributions).
Amounts contributed in order to satisfy the restrictions set forth in Section 3.1(e) shall be
considered “Qualified Matching Contributions” (within the meaning of Treasury Regulation Section
1.401(k)-6), and amounts contributed in order to satisfy the restrictions set forth in Section 3.5
shall be considered Employer Matching Contributions.



Employer Discretionary Qualified Matching Contributions may be contributed to the Plan pursuant to
the foregoing for purposes of satisfying the restrictions set forth in Section 3.1(e) only if the
conditions described in Treasury Regulation Section 1.401(k)-2(a)(6) are satisfied. A contribution
made pursuant to this Section 3.4 is not taken into account under the actual contribution
percentage test (as defined under Treasury Regulation Section 1.401(k)-6) (“ACP Test”) or in
determining the ADR for a Participant who is not a Highly Compensated Employee (a “NHCE”) to the
extent that it exceeds the greatest of:




(a) Five percent (5%) of the NHCE’s Section 414(s) of the Code compensation for the
Plan Year;




(b) The NHCE’s Before-Tax Contributions for the Plan Year; and




(c) The product of two (2) times the Plan’s “Representative Matching Rate” (as defined
below) and the NHCE’s Before-Tax Contributions for the Plan Year.


 


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Any amounts contributed pursuant to this Paragraph shall be allocated in accordance with the
provisions of Sections 4.1(d), (e) and (f). For purposes of this Paragraph, the “Matching Rate” for
a Participant generally is the Employer Matching Contributions made for such Participant divided by
the Participant’s Before-Tax Contributions for the Plan Year. For purposes of this Paragraph, the
“Representative Matching Rate” is the lowest Matching Rate for any eligible NHCE among a group of
NHCEs that consists of half of all eligible NHCEs in the Plan for the Plan Year (or, if greater,
the lowest Matching Rate for all eligible NHCEs in the Plan who are employed by the Employer on the
last day of the Plan Year and who make Before-Tax Contributions for the Plan Year). If the Matching
Rate is not the same for all levels of Before-Tax Contributions for a Participant, then the
Participant’s Representative Matching Rate is determined assuming that a Participant’s Before-Tax
Contributions are equal to six percent (6%) of his Section 414(s) of the Code compensation.



3.5 Restrictions on Employer Matching Contributions and After-Tax Contributions. In
restriction of the Employer Matching Contributions and After-Tax Contributions hereunder, it is
specifically provided that one of the actual contribution percentage tests set forth in Section
401(m) of the Code and Treasury Regulations thereunder (“ACP Test”) must be met in each Plan Year.
Such testing shall utilize the current year testing method as such term is defined in Treasury
Regulation Section 1.401(m)-2(a)(2)(ii). The Committee may elect, in accordance with applicable
Treasury Regulations, to treat Before-Tax Contributions to the Plan as Employer Matching
Contributions for purposes of meeting this requirement. The actual contribution ratio (as such term
is defined under Treasury Regulations Section 1.401(k)-6) (the “ACR”) for any Participant who is a
Highly Compensated Employee and who is eligible to have Employer Matching Contributions or
After-Tax Contributions allocated to his or her account under two (2) or more plans described in
Section 401(a) of the Code, or arrangements described in Section 401(k) of the Code that are
maintained by the same Employer (or Controlled Entity), shall be determined as if the total of such
contributions was made under each plan and arrangement. If a Highly Compensated Employee
participates in two (2) or more such plans or arrangements that have different plan years, then all
Employer Matching Contributions and After-Tax Contributions made during the Plan Year being tested
under all such plans and arrangements shall be aggregated, without regard to the plan years of the
other plans. Notwithstanding the foregoing, certain plans shall be treated as separate if
mandatorily disaggregated under the Treasury Regulations of Section 401(m) of the Code.



3.6 Return of Contributions. Anything to the contrary herein notwithstanding, the
Employer’s contributions to the Plan are contingent upon the deductibility of such contributions
under section 404 of the Code. To the extent that a deduction for contributions is disallowed, such
contributions shall, upon the written demand of the Employer, be returned to the Employer by the
Trustee within one year after the date of disallowance, reduced by any net losses of the Trust Fund
attributable thereto but not increased by any net earnings of the Trust Fund attributable thereto,
which net earnings shall be treated as a forfeiture in accordance with Section 4.2. Moreover, if
Employer contributions are made under a mistake of fact, such contributions shall, upon the written
demand of the Employer, be returned to the Employer by the Trustee within one year after the
payment thereof, reduced by any net losses of the Trust Fund attributable thereto but not increased
by any net earnings of the Trust Fund attributable thereto, which net earnings shall be treated as
a forfeiture in accordance with Section 4.2.


 


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3.7 Disposition of Excess Deferrals and Excess Contributions.




(a) Any Before-Tax Contributions and/or Roth Contributions to the Plan for a calendar
year on behalf of a Participant in excess of the limitations set forth in Section 3.1(d) and
any “excess deferrals” from other plans allocated to the Plan by such Participant no later
than March 1 of the next following calendar year within the meaning of, and pursuant to the
provisions of, Section 402(g)(2) of the Code, shall be distributed to such Participant not
later than April 15 of the next following calendar year.




(b) Anything to the contrary herein notwithstanding, if, for any Plan Year, the
aggregate Before-Tax Contributions and/or Roth Contributions made by the Employer on behalf
of Highly Compensated Employees exceeds the maximum amount of Before-Tax Contributions
and/or Roth Contributions permitted on behalf of such Highly Compensated Employees pursuant
to Section 3.1(e) or 3.1(i), respectively, an excess amount shall be determined by reducing
Before-Tax Contributions and/or Roth Contributions on behalf of Highly Compensated Employees
in order of the highest ADRs to equal the highest permitted ADR in accordance with Section
401(k)(8)(B)(ii) of the Code and the Treasury Regulations thereunder. Once determined, the
Committee may adjust the contributions of each affected Highly Compensated Employee by
causing such excess amounts to be (i) recharacterized as Catch-Up Contributions pursuant to
the provisions of Section 4.5 of the Plan to the maximum extent possible, and (ii)
distributed to Highly Compensated Employees in order of the highest dollar amounts
contributed on behalf of such Highly Compensated Employees in accordance with Section
401(k)(8)(C) of the Code and the Treasury Regulations thereunder before the end of the next
following Plan Year. Income allocable to such excess amounts with respect to a Plan Year
shall be distributed therewith and shall include income for such Plan Year including the gap
period between the end of such Plan Year and the date of distribution of such excess amounts
computed under the safe harbor method of allocating gap period income set forth in Treasury
Regulation Section 1.401(k)-2(b)(2)(iv)(D).




(c) Anything to the contrary herein notwithstanding, if, for any Plan Year, the
aggregate Employer Matching Contributions and After-Tax Contributions allocated to the
Accounts of Highly Compensated Employees exceeds the maximum amount of such Employer
Matching Contributions and After-Tax Contributions permitted on behalf of such Highly
Compensated Employees pursuant to Section 3.5, an excess amount shall be determined by
reducing, first, After-Tax Contributions made by, and second, Employer Matching
Contributions made on behalf of, Highly Compensated Employees in order of the highest ACR to
equal the highest permitted ACR in accordance with Section 401(m)(6)(B)(ii) of the Code and
Treasury Regulations thereunder. Once determined, such excess shall be distributed to Highly
Compensated Employees in order of the highest dollar amounts contributed by or on behalf of
such Highly Compensated Employees in accordance with Section 401(m)(6)(C) of the Code and
the Treasury Regulations thereunder (or, if such excess contributions are forfeitable, they
shall be forfeited) before the end of the next following Plan Year. Income allocable to such
excess amounts with respect to a Plan Year shall be distributed therewith and shall include
income for such Plan Year including the gap period between the end of such Plan Year
and the date of distribution of such excess amounts computed under the safe harbor
method of allocating gap period income set forth in Treasury Regulation Section
1.401(m)-2(b)(2)(iv)(D). If separate testing is performed pursuant to the last sentence of
Section 3.6, then the corrective actions described in this Paragraph shall be applied
separately in a manner consistent with such separate testing.


 


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(d) In coordinating the disposition of excess deferrals and excess contributions
pursuant to this Section, such excess deferrals and excess contributions shall be disposed
of in the following order:




(1) First, excess Roth Contributions that constitute excess deferrals described
in Paragraph (a) above that are not considered in determining the amount of Employer
Matching Contributions pursuant to Section 3.3 shall be distributed;




(2) Next, excess Before-Tax Contributions that constitute excess deferrals
described in Paragraph (a) above that are not considered in determining the amount
of Employer Matching Contributions pursuant to Section 3.3 shall be distributed;




(3) Next, excess Before-Tax Contributions that constitute excess deferrals
described in Paragraph (a) above that are considered in determining the amount of
Employer Matching Contributions pursuant to Section 3.3 shall be distributed, and
the Employer Matching Contributions with respect to such Before-Tax Contributions
shall be forfeited;




(4) Next, excess Before-Tax Contributions described in Paragraph (b) above that
are not considered in determining the amount of Employer Matching Contributions
pursuant to Section 3.3 shall be distributed;




(5) Next, excess Before-Tax Contributions described in Paragraph (b) above that
are considered in determining the amount of Employer Matching Contributions pursuant
to Section 3.3 shall be distributed, and the Employer Matching Contributions with
respect to such Before-Tax Contributions shall be forfeited;




(6) Next, excess After-Tax Contributions described in Paragraph (c) above shall
be distributed; and




(7) Finally, excess Employer Matching Contributions described in Paragraph (c)
above shall be distributed (or, if forfeitable, forfeited).




(e) Any distribution or forfeiture of excess deferrals or excess contributions pursuant
to the provisions of this Section shall be adjusted for income or loss allocated thereto in
the manner determined by the Committee in accordance with any method permissible under
applicable Treasury Regulations.


 


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3.8 Rollover Contributions.




(a) Rollover Contributions may be made to the Plan by any Eligible Employee of amounts
received by such Eligible Employee from a qualified plan described in Section 401(a) or
403(a) of the Code or an annuity contract described in Section 403(b) of the Code
(excluding, in each case, after-tax employee contributions). In addition, the Plan will
accept a Rollover Contribution of the portion of a distribution received by an Eligible
Employee from an individual retirement account or annuity described in Section 408(a) or
408(b) of the Code that is eligible to be rolled over and would otherwise be includible in
gross income. Rollover Contributions pursuant to this Paragraph may only be made to the Plan
pursuant to and in accordance with applicable provisions of the Code and Treasury
Regulations promulgated thereunder. Notwithstanding the foregoing, effective January 1,
2008, the Plan will accept Roth 401(k) contributions as Rollover Contributions.




(b) Qualified direct Rollover Contributions may be made to the Plan by any Eligible
Employee of amounts received by such Eligible Employee from any of a qualified plan
described in Section 401(a) or 403(a) of the Code (including after-tax employee
contributions) or an annuity described in Section 403(b) of the Code (excluding after-tax
employee contributions). Qualified direct Rollover Contributions may be made to the Plan
only pursuant to and in accordance with applicable provisions of the Code and Treasury
Regulations promulgated thereunder. A direct Rollover Contribution of amounts that are
“eligible rollover distributions” within the meaning of Section 402(f)(2)(A) of the Code may
be made to the Plan irrespective of whether such eligible rollover distribution was paid to
the Eligible Employee or paid to the Plan as a “direct” Rollover Contribution.




(c) Any Eligible Employee desiring to effect a Rollover Contribution to the Plan must
follow the procedures prescribed by the Committee for such purpose. All Rollover
Contributions to the Plan must be made in cash. A Rollover Contribution shall be credited to
the Rollover Contribution Account of the Eligible Employee for whose benefit such Rollover
Contribution is being made as of the day such Rollover Contribution is received by the
Trustee.




Notwithstanding the foregoing, if an Eligible Employee’s interest under a qualified
plan described in Section 401(a) of the Code is distributed in connection with an
acquisition of stock or assets by an Employer or a Controlled Entity, the Eligible
Employee’s entire outstanding loan under such plan may be contributed as a Rollover
Contribution to this Plan, in accordance with this Section 3.8, provided that the transferor
plan provides the Committee with a current favorable IRS determination letter issued to such
transferor plan and trust or such other evidence that the Committee in its discretion deems
satisfactory to establish that the proposed Rollover Contribution is in fact eligible for
rollover to the Plan and is made pursuant to and in accordance with applicable provisions of
the Code and Treasury Regulations. The Committee shall determine, in its discretion, whether
or not a distribution is made in connection with an acquisition of stock or assets by an
Employer or a Controlled Entity.


 


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(d) An Eligible Employee who has made a Rollover Contribution in accordance with this
Section, but who has not otherwise become a Participant of the Plan in accordance with
Section 2.2, shall become a Participant coincident with such Rollover Contribution;
provided, however, that such Participant shall not have a right to defer Compensation, make
contributions to the Plan, or have Employer Contributions made on his behalf until he has
otherwise satisfied the requirements imposed by Section 2.2.



IV. Allocations and Limitations




4.1 Allocation of Contributions.





(a) Before-Tax Contributions made by the Employer on a Participant’s behalf shall be
allocated to such Participant’s Before-Tax Account. Further, Catch-Up Contributions made by
the Employer on a Participant’s behalf shall be allocated to such Participant’s Catch-Up
Contribution Account.




(b) After-Tax Contributions made by a Participant pursuant to Section 3.2 shall be
allocated to such Participant’s After-Tax Account.




(c) Employer Matching Contributions made by the Employer on a Participant’s behalf
shall be allocated to such Participant’s Employer Contribution Account.




(d) The Employer Discretionary Qualified Matching Contributions, if any, made pursuant
to Section 3.4 for a Plan Year in order to satisfy the restrictions set forth in Section
3.1(e) shall be allocated to the Before-Tax Accounts of Participants who (i) received an
allocation of Before-Tax Contributions for such Plan Year, and (ii) were not Highly
Compensated Employees for such Plan Year (each such Participant individually referred to as
an “Eligible Participant” for purposes of this Paragraph). Such allocation shall be made,
first, to the Before-Tax Account of the Eligible Participant who received the least amount
of Compensation for such Plan Year until the lesser of the limitation set forth in Treasury
Regulation Section 1.401(k)-2(a)(6)(v) or the limitation set forth in Section 4.4 (the
“401(k) Additional Contribution Limitation”) has been reached as to such Eligible
Participant, then to the Before-Tax Account of the Eligible Participant who received the
next smallest amount of Compensation for such Plan Year until the 401(k) Additional
Contribution Limitation has been reached as to such Eligible Participant, and continuing in
such manner until the Employer Discretionary Qualified Matching Contribution for such Plan
Year has been completely allocated or the 401(k) Additional Contribution Limitation has been
reached as to all Eligible Participants.




(e) The Employer Discretionary Qualified Matching Contribution, if any, made pursuant
to Section 3.4 for a Plan Year in order to satisfy the restrictions set forth in Section 3.5
shall be allocated to the Employer Contribution Accounts of Participants who (i) received an
allocation of Employer Matching Contributions for such Plan Year, and (ii) were not Highly
Compensated Employees for such Plan Year (each such Participant individually referred to as
an “Eligible


 


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Participant” for purposes of this Paragraph). Such allocation shall be made, first, to the Employer Contribution Account of the Eligible
Participant who received the least amount of Compensation for such Plan Year until the
lesser of the limitation set forth in Treasury Regulation Section 1.401(m)-2(a)(5) or the
limitation set forth in Section 4.4 (the “401(m) Additional Contribution Limitation”) has
been reached as to such Eligible Participant; then to the Employer Contribution Account of
the Eligible Participant who received the next smallest amount of Compensation for such Plan
Year until the 401(m) Additional Contribution Limitation has been reached as to such
Eligible Participant, and continuing in such manner until the Employer Discretionary
Qualified Matching Contribution for such Plan Year has been completely allocated or the
401(m) Additional Contribution Limitation has been reached as to all Eligible Participants.




(f) If an Employer Discretionary Qualified Matching Contributions is made in order to
satisfy the restrictions set forth in both Section 3.1(e) and Section 3.5 for the same Plan
Year, the Employer Discretionary Qualified Matching Contributions made in order to satisfy
the restrictions set forth in Section 3.1(e) shall be allocated (pursuant to Paragraph (d)
above) prior to allocating the Employer Discretionary Qualified matching Contribution made
in order to satisfy the restrictions set forth in Section 3.5 (pursuant to Paragraph (e)
above). In determining the application of the limitations set forth in Section 4.4 to the
allocations of Employer Discretionary Qualified Matching Contributions, all Annual Additions
(as such term is defined in Section 4.4) to a Participant’s Accounts other than Employer
Discretionary Qualified Matching Contributions shall be considered allocated prior to
Employer Discretionary Qualified Matching Contributions.




(g) Roth Contributions pursuant to Article III made by the Employer on a Participant’s
behalf shall be allocated to such Participant’s Roth Account.




(h) All contributions to the Plan shall be considered allocated to Participants’
Accounts no later than the last day of the Plan Year for which they were made, as determined
pursuant to Article III, except that, for purposes of Section 4.3, contributions shall be
considered allocated to Participants’ Accounts when received by the Trustee.



4.2 Application of Forfeitures. Any amounts that are forfeited under any provision
hereof during a Plan Year shall be applied in the manner determined by the Committee to reduce
Employer Matching Contributions next coming due and/or to pay expenses incident to the
administration of the Plan and Trust. Prior to such application, forfeited amounts shall beheld in
suspense and invested in the Investment Fund or Funds designated from time to time by the
Committee.



4.3 Valuation of Accounts. All amounts contributed to the Trust Fund shall be invested
as soon as administratively feasible following their receipt by the Trustee, and the balance of
each Account shall reflect the result of daily pricing of the assets in which such Account is
invested from the time of receipt by the Trustee until the time of distribution.


 


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4.4 Limit on Annual Additions Under Code Section 415: Effective January 1, 2008,
contributions hereunder shall be subject to the limitations of Code Section 415 and Treasury
Regulations published pursuant to such Code Section on April 5, 2007, the provisions of which are
specifically incorporated by reference; to the extent any portion of this Section conflicts with
such Regulations, the provisions of the Regulations shall govern.




(a) The Annual Additions to a Participant’s Accounts hereunder (together with the
Annual Additions to the Participant’s account(s) under any other defined contribution plans
required to be aggregated with the Plan) for any Limitation Year may not exceed the lesser
of:




(1) Forty-nine Thousand Dollars ($49,000.00), subject to cost-of-living
increases as allowed under Code Section 415(d); or




(2) One hundred percent (100%) of the Participant’s 415 Compensation for the
Limitation Year.




In the event the preceding limitations apply to an individual who is a Participant in this
Plan and was a Participant in any other defined contribution plan maintained by the
Employer, the limitations shall apply first to this Plan.




(b) For purposes of this Section the following definitions shall apply:




(1) “Annual Addition” shall mean the sum of the following additions to
a Participant’s Accounts for the Limitation Year (i) employer contributions
(including salary reduction contributions); (ii) employee contributions, and (iii)
forfeitures, if any. For purposes of this definition, “Annual Additions” to other
Employer defined contribution plans (also taken into account when applying the
limitations in Paragraph (a) above) include any voluntary employee contributions to
an account in a qualified defined benefit plan and any employer contribution to an
individual retirement account or annuity under Code Section 408 or to a medical
account for a key employee under Code Section 401(h) or 419A(d), except that the
25%-of-pay limit below shall not apply to employer contributions to a key employee’s
medical account after his separation from service.




(2) “Limitation Year” shall be the Plan Year.




(c) In the event the limitations in this Section are not satisfied, correction shall be
made under the rules provided in Revenue Procedure 2008-50 (and any successor to that
Revenue Procedure).



4.5 Recharacterizations. In the event a Participant’s Before-Tax Contributions for a
Plan Year do not equal a limitation described in Section 3.1(e) for any reason whether or not
related to an election by a Participant, his Catch-Up Contributions, if any, for such Plan Year
shall be recharacterized as Before-Tax Contributions for all purposes to the extent necessary to
either (i) increase Before-Tax Contributions to equal such limitation, or (ii) exhaust the Catch-Up
Contributions made for such Plan Year; provided; however, in no event shall such
recharacterized Catch-Up Contributions be eligible to be matched by Employer Matching
Contributions.


 


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In the event a Participant who is eligible to elect Catch-Up Contributions is determined by the
Committee, applying the provisions of Section 3.7, to have excess deferrals for a Plan Year, then
before causing a distribution of such Participant’s excess deferrals, the Committee may cause such
Participant’s Before-Tax Contributions to be recharacterized as Catch-Up Contributions to the
extent necessary to either (i) exhaust his excess deferrals, or (ii) increase his Catch-Up
Contributions to the applicable limit under Section 414(v) of the Code for the Plan Year.



V. Investment Funds





5.1 Investment of Accounts.




(a) Each Participant shall designate, in accordance with the procedures established
from time to time by the Committee, the manner in which the amounts allocated to each of his
Accounts shall be invested from among the Investment Funds made available from time to time
by the Committee, except that, subject to Section 15.5, there shall be a Company Stock Fund
and the Committee may not eliminate such Fund. With respect to the portion of a
Participant’s Accounts that is subject to investment discretion, such Participant may
designate one of such Investment Funds for all the amounts allocated to such portion of his
Accounts (except to the extent otherwise provided by the Committee) or he may split the
investment of the amounts allocated to such portion of his Accounts between such Investment
Funds in such increments as the Committee may prescribe. Except as otherwise provided in
Section 15.5, if a Participant fails to make a designation, then such portions of his
Accounts shall be invested in the Investment Fund or Funds designated by the Committee from
time to time in a uniform and nondiscriminatory manner.




(b) A Participant may change his investment designation for future contributions to be
allocated to his Accounts. Any such change shall be made in accordance with the procedures
established by the Committee, and the frequency of such changes may be limited by the
Committee.




(c) A Participant may elect to convert his investment designation with respect to the
amounts already allocated to his Accounts. Any such conversion shall be made in accordance
with the procedures established by the Committee, and the frequency of such conversions may
be limited by the Committee.




5.2 Pass-Through Voting and Other Rights with Respect to Company Stock.




(a) Each Participant shall have the right to direct the Trustee as to the manner of
voting and the exercise of all other rights which a shareholder of record has with respect
to shares (and fractional shares) of Company Stock which are held in the
Company Stock Fund and which are attributable to the Participant’s Accounts including,
but not limited to, the right to sell or retain shares in a public or private tender offer.


 


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(b) All shares (and fractional shares) of Company Stock for which the Trustee has not
received timely Participant directions shall be voted or exercised by the Trustee in the
same proportion as the shares (and fractional shares) of Company Stock for which the Trustee
received timely Participant directions, except in the case where to do so would be
inconsistent with the provisions of Title I of the Act.




(c) Notwithstanding anything herein to the contrary, in the event of a tender offer for
Company Stock, the Trustee shall interpret a Participant’s silence as a direction not to
tender the shares of Company Stock attributable to the Participant’s Accounts and,
therefore, the Trustee shall not tender any shares (or fractional shares) of Company Stock
for which it does not receive timely directions to tender such shares (or fractional shares)
from Participants, except in the case where to do so would be inconsistent with the
provisions of Title I of the Act.



VI. Retirement Benefits




A Participant who terminates his employment on or after his Normal Retirement Date shall be
entitled to a retirement benefit, payable at the time and in the form provided in Article X, equal
in value to the aggregate amount in his Accounts on his Benefit Commencement Date. Any contribution
allocable to a Participant’s Accounts after his Benefit Commencement Date shall be distributed, as
soon as administratively feasible after the date that such contribution is paid to the Trust Fund.



VII. Disability Benefits




A Participant who incurs a Total and Permanently Disability shall be entitled to a disability
benefit, payable at the time and in the form provided in Article X, equal in value to the aggregate
amount in his Accounts on his Benefit Commencement Date. Any contribution allocable to a
Participant’s Accounts after his Benefit Commencement Date shall be distributed, as soon as
administratively feasible after the date that such contribution is paid to the Trust Fund.



VIII. Pre-Retirement Termination Benefits and Determination of Vested Interest




8.1 No Benefits Unless Herein Set Forth. Except as set forth in this Article, upon the
Participant’s Severance from Employment prior to his Normal Retirement Date for any reason other
than Total and Permanent Disability or death, such Participant shall acquire no right to any
benefit from the Plan or the Trust Fund.



8.2 Pre-Retirement Severance from Employment Benefit. Each Participant who incurs a
Severance from Employment prior to his Normal Retirement Date for any reason other than Total and
Permanent Disability or death shall be entitled to a Severance from Employment benefit, payable at
the time and in the form provided in Article X, equal in value to the aggregate amount in his
Accounts on his Benefit Commencement Date. Any contribution allocable to a
Participant’s Accounts after his Benefit Commencement Date shall be distributed as soon as
administratively feasible after the date that such contribution is paid to the Trust Fund.


 


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8.3 Determination of Vested Interest. A Participant shall have a 100% vested interest
in all of his Accounts under the Plan, including any After-Tax Account, the Before-Tax Account, the
Roth Account, the Employer Contribution Account, the Rollover Contribution Account or the Catch-Up
Contribution Account maintained on his behalf.



IX. Death Benefits




9.1 Death Benefits. Upon the death of a Participant while an Employee, the
Participant’s designated beneficiary shall be entitled to a death benefit, payable at the time and
in the form provided in Article X, equal to the value of the Participant’s Accounts on his Benefit
Commencement Date. Any contribution allocable to a Participant’s Accounts after his Benefit
Commencement Date shall be distributed as soon as administratively feasible after the date that
such contribution is paid to the Trust Fund.




9.2 Designation of Beneficiaries.




(a) Each Participant shall have the right to designate the beneficiary or beneficiaries
to receive payment of his benefit in the event of his death. Each such designation shall be
made by providing a beneficiary designation in the manner prescribed by the Committee. Any
such designation may be changed at any time by such Participant by providing a new
designation in accordance with this Section. Notwithstanding the foregoing, if a Participant
who is married on the date of his death has designated an individual or entity other than
his surviving spouse as his beneficiary, such designation shall not be effective unless (i)
such surviving spouse has consented thereto in writing and such consent (A) acknowledges the
effect of such specific designation, (B) either consents to the specific designated
beneficiary (which designation may not subsequently be changed by the Participant without
spousal consent) or expressly permits such designation by the Participant without the
requirement of further consent by such spouse, and (C) is witnessed by a Plan representative
(other than the Participant) or a notary public, or (ii) the consent of such spouse cannot
be obtained because such spouse cannot be located or because of other circumstances
described by applicable Treasury Regulations. Any such consent by such surviving spouse
shall be irrevocable.




(b) If a beneficiary designation has not been made at the time of the death of the
Participant or if such designation is not effective for any reason as determined by the
Committee, the designated beneficiary or beneficiaries to receive such death benefit shall
be as follows:




(1) If a Participant leaves a surviving spouse, his designated beneficiary
shall be such surviving spouse; and




(2) If a Participant leaves no surviving spouse, his designated beneficiary
shall be (i) such Participant’s executor or administrator, or (ii) his heirs at law
if there is no administration of such Participant’s estate.




 


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(c) Notwithstanding the preceding provisions of this Section and to the extent not
prohibited by state or federal law, if a Participant is divorced from his spouse and at the
time of his death is not remarried to the person from whom he was divorced, any designation
of such divorced spouse as his beneficiary under the Plan filed prior to the divorce shall
be null and void unless the contrary is expressly stated in writing filed with the Committee
by the Participant. The interest of such divorced spouse failing hereunder shall vest in the
persons specified in Paragraph (b) above as if such divorced spouse did not survive the
Participant.



X. Time and Form of Payment of Benefits





10.1 Determination of Benefit Commencement Date.




(a) A Participant’s Benefit Commencement Date shall be the date that is as soon as
administratively feasible after the date the Participant or his beneficiary becomes entitled
to a benefit pursuant to Article VI, VII, VIII, or IX unless the Participant has been
reemployed by the Employer or a Controlled Entity before such potential Benefit Commencement
Date.




(b) Unless (i) the Participant has attained age 701/2 or died, (ii) the Participant
consents to a distribution pursuant to Paragraph (a) within the one-hundred-eighty (180)-day
period (effective January 1, 2008) ending on the date payment of his benefit hereunder is to
commence pursuant to Paragraph (a), or (iii) the Participant’s vested interest in his
Accounts is not equal to or in excess of $1,000, the Participant’s Benefit Commencement Date
shall be deferred to the date which is as soon as administratively feasible after the
earlier of the end of the Plan Year in which the Participant attains age 701/2 or the
Participant’s date of death, or such earlier date as the Participant may elect by written
notice to the Committee prior to such date. No less than thirty days (unless such thirty-day
period is waived by an affirmative election in accordance with applicable Treasury
Regulations) and no more than one-hundred-eighty (180) days before his Benefit Commencement
Date, the Committee shall inform the Participant of his right to defer his Benefit
Commencement Date and shall describe the Participant’s Direct Rollover election rights
pursuant to Section 10.3 below.




(c) A Participant’s Benefit Commencement Date shall in no event be later than the
sixtieth day following the close of the Plan Year during which such Participant attains, or
would have attained, 701/2 or; if later, terminates his employment with the Employer and all
Controlled Entities.




(d) Subject to the provisions of Section 10.5, a Participant’s Benefit Commencement
Date shall not occur unless the Article VI, VII, VIII, or IX event entitling the Participant
(or his beneficiary) to a benefit constitutes a distributable event
described in section 401(k)(2)(B) of the Code and shall not occur while the Participant
is employed by the Employer or any Controlled Entity (irrespective of whether the
Participant has become entitled to a distribution of his benefit pursuant to Article VI,
VII, VIII, or IX).


 


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(e) Paragraphs (a), (b), and (c) above notwithstanding, but subject to the provisions
of Section 10.5, a Participant and the beneficiary of a Participant who dies prior to his
Benefit Commencement Date, other than a Participant whose vested interest in his Accounts is
not equal to or in excess of $1,000 (determined by including the Participant’s Rollover
Account, if any), must file a claim for benefits in the manner prescribed by the Committee
before payment of his benefit will be made.




(f) If the value of a Participant’s Account balance is $1,000 or less (determined by
including the Participant’s Rollover Account, if any), then the Participant’s entire Account
balance shall be immediately distributed in a single sum payment.




10.2 Form of Payment and Payee.




(a) Subject to the provisions of Paragraph (b) below, a Participant’s benefits shall be
provided from the balance of such Participant’s Accounts under the Plan and shall be paid in
cash in one lump sum on the Participant’s Benefit Commencement Date. Except as provided in
Section 19.4, the Participant’s benefit shall be paid to the Participant unless the
Participant has died prior to his Benefit Commencement Date, in which case the Participant’s
benefit shall be paid to his beneficiary designated in accordance with the provisions of
Section 9.2.




(b) Benefits shall be paid (or transferred pursuant to Section 10.3) in cash except
that a Participant (or his designated beneficiary or legal representative in the case of a
deceased Participant) may elect to have the portion of his Accounts invested in Company
Stock paid (or transferred pursuant to Section 10.3) in full shares of Company Stock with
any balance (including fractional shares of Company Stock) to be paid or transferred in
cash. Conversions of Company Stock to cash and cash to Company Stock shall be made utilizing
the unit method of accounting and shall be based upon the value of Company Stock within the
Company Stock Fund.



10.3 Direct Rollover Election. Notwithstanding any provision of the Plan to the
contrary that would otherwise limit a Distributee’s election under this Section, a Distributee may
elect, at the time and in the manner prescribed by the Committee, to have all or any portion of an
Eligible Rollover Distribution (other than any portion attributable to the offset of an outstanding
loan balance of such Participant pursuant to the Plan’s loan procedure) paid directly to an
Eligible Retirement Plan specified by the Distributee in a Direct Rollover.



10.4 Unclaimed Benefits. In the case of a benefit payable on behalf of a Participant,
if the Committee is unable to locate the Participant or beneficiary to whom such benefit is
payable, upon the Committee’s determination thereof, such benefit shall be forfeited. The timing
of such
forfeiture shall comply with the time of payment rules described in Section 10.1.
Notwithstanding the foregoing, if subsequent to any such forfeiture the Participant or beneficiary
to whom such benefit is payable makes a valid claim for such benefit, such forfeited benefit shall
be restored to the Plan.


 


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10.5 Minimum Distribution Requirements. The following provisions reflect final
Regulations under Section 401(a)(9) of the Code published on April 17, 2002, but are not intended
to provide any right to any optional form of distribution not otherwise provided in the Plan.




(a) General Rules.




(1) Precedence. The requirements of this Section will take precedence
over any inconsistent provisions of the Plan.




(2) Requirements of Treasury Regulations Incorporated. All
distributions required under this Section will be determined and made in accordance
with the Treasury Regulations under Section 401(a)(9) of the Code.




(3) TEFRA Section 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 Section 242(b)(2) of the Tax Equity and Fiscal
Responsibility Act (“TEFRA”) and the provisions of the Plan that relate to Section
242(b)(2) of TEFRA.




(b) Time and Manner of Distribution.




(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 distributions begin, the Participant’s entire interest will be
distributed, or begin to be distributed, no later than as follows:




(A) If the Participant’s surviving spouse is the Participant’s sole
designated beneficiary, distributions to the surviving spouse will begin by
December 31 of the calendar year immediately following the calendar year in
which the Participant died, or by December 31 of the calendar year in which
the Participant would have attained age 701/2, if later.




(B) If the Participant’s surviving spouse is not the Participant’s sole
designated beneficiary, distributions to the designated beneficiary will
begin by December 31 of the calendar year immediately following the calendar
year in which the Participant died.


 


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(C) If there is no designated beneficiary as of September 30 of the
year following the year of the Participant’s death, the Participant’s entire
interest will be distributed by December 31 of the calendar year containing
the fifth anniversary of the Participant’s death.




(D) If the Participant’s surviving spouse is the Participant’s sole
designated beneficiary and the surviving spouse dies after the Participant
but before distributions to the surviving spouse begin, this Subparagraph
(b)(2), other than Subparagraph (b)(2)(A), will apply as if the surviving
spouse were the Participant




For purposes of this Subparagraph (b)(2) and Subparagraph (d), unless
Subparagraph (b)(2)(D) applies, distributions are considered to begin on the
Participant’s required beginning date. If Subparagraph (b)(2)(D) applies,
distributions are considered to begin on the date distributions are required to
begin to the surviving spouse under Subparagraph (b)(2)(A). If distributions under
an annuity purchased from an insurance company irrevocably commence to the
Participant before the Participant’s required beginning date (or to the
Participant’s surviving spouse before the date distributions are required to begin
to the surviving spouse under Subparagraph (b)(2)(A)), the date distributions are
considered to begin is the date distributions actually commence.




(3) Forms of Distribution. Unless the Participant’s interest is
distributed in the form of 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 Subparagraphs (c) and
(d) of this Section. If the Participant’s interest is distributed in the form of an
annuity purchased from an insurance company, distributions thereunder will be made
in accordance with the requirements of Section 401(a)(9) of the Code and the
Treasury Regulations.




(c) Required Minimum Distributions During Participant’s Lifetime.




(1) Amount of Required Minimum Distribution For Each Distribution Calendar
Year. During the Participant’s lifetime, the minimum amount that will be
distributed for 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
Treasury Regulations Section 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, the quotient
obtained by dividing the Participant’s account balance by the number in the
Joint and Last Survivor Table set forth in Treasury Regulations Section
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.


 


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(2) Lifetime Required Minimum Distributions Continue Through Year of
Participant’s Death. Required minimum distributions will be determined under
this Subparagraph (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 Participant’s Death.




(1) Death On or After Date Distributions Begin.




(A) Participant Survived by Designated Beneficiary. If the
Participant dies on or after the date distributions begin and there is a
designated beneficiary, 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 Participant’s designated beneficiary, determined as
follows:




(i) The Participant’s remaining life expectancy is calculated using the
age of the Participant in the year of death, reduced by one for each
subsequent year.




(ii) If the Participant’s surviving spouse is the Participant’s sole
designated beneficiary, 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 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) If the Participant’s surviving spouse is not the Participant’s
sole designated beneficiary, 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 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, 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 for each subsequent year.


 


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(2) Death Before Date Distributions Begin.




(A) Participant Survived by Designated Beneficiary. If the
Participant dies before the date distributions begin and there is a
designated beneficiary, 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
remaining life expectancy of the Participant’s designated beneficiary,
determined as provided in Subparagraph (d)(1).




(B) No Designated Beneficiary. If the 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 the
Participant’s death.




(C) Death of Surviving Spouse Before Distributions to Surviving
Spouse Are Required to Begin. If the Participant dies before the date
distributions begin, the Participant’s surviving spouse is the Participant’s
sole designated beneficiary, and the surviving spouse dies before
distributions are required to begin to the surviving spouse under
Subparagraph (b)(2)(A), this Subparagraph (d)(2) will apply as if the
surviving spouse were the Participant.




(e) Definitions.




(1) Designated beneficiary. The individual who is designated as the
beneficiary under the applicable section of the Plan and is the designated
beneficiary under Section 401(a)(9) of the Code and Treasury Regulations Section
1.401(a)(9)-1, Q&A-4.




(2) Distribution calendar year. A calendar year for which a minimum
distribution is required. For distributions beginning before the Participant’s
death, the first distribution calendar year is the calendar year immediately
preceding the calendar year which contains the Participant’s required beginning
date. For distributions beginning after the Participant’s death, the first
distribution calendar year is the calendar year in which distributions are required
to begin under Subparagraph (b)(2). The required minimum distribution for the
Participant’s first distribution calendar year will be made on or before the
Participant’s required beginning date. The required minimum distribution for other
distribution calendar
years, including the required minimum distribution for the distribution
calendar year in which the Participant’s required beginning date occurs, will be
made on or before December 31 of that distribution calendar year.


 


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(3) Life expectancy. Life expectancy as computed by use of the Single
Life Table in Treasury Regulations Section 1.401(a)(9)-9.




(4) Participant’s account balance. The account balance as of the last
valuation date in the calendar year immediately preceding the distribution calendar
year (valuation calendar year) increased by the amount of any contributions made and
allocated or forfeitures allocated to the account balance 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 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.




(5) Required beginning date. The date specified in Section 401(a)(9)(C)
of the Code.




(f) A Designated Beneficiary that is not a surviving spouse may not elect a Direct
Rollover of an amount which is a required minimum distribution according to this Section 9.2
of the Plan. If the Participant dies before his required beginning date and the nonspouse
beneficiary elects a Direct Rollover to an Eligible Retirement Plan the maximum amount
eligible for a Direct Rollover, the beneficiary may elect to use either the five (5)-year
rule or the Life expectancy rule, in determining the required minimum distributions from the
Eligible Retirement Plan that receives the nonspouse beneficiary’s distribution.



XI. In-Service Withdrawals




11.1  In-Service Withdrawals.




(a) A Participant, who is an Employee, may withdraw from his After-Tax Account any or
all amounts held in such Account.




(b) A Participant, who is an Employee, and who has attained age fifty-nine and one-half
(59-1/2) may withdraw from his Before-Tax Account, his Catch-Up Contribution Account and his
Employer Contribution Account, on a pro rata basis, an amount not exceeding the aggregate
value of such Accounts; however, the number of withdrawals by a Participant under this
paragraph shall be limited to two (2) withdrawals in a calendar year.




(c) A Participant, who is an Employee, and who has a financial hardship, as determined
by the Committee, and who has made all available withdrawals pursuant to the paragraphs
above and pursuant to the provisions of any other plans of the Employer
and any Controlled Entities of which he is a member and who has obtained all available
loans pursuant to Article XII and pursuant to the provisions of any other plans of the
Employer and any Controlled Entities of which he is a member may withdraw from the following
Accounts, and in the following order, his Rollover Contribution Account, his Before-Tax
Account, his Catch-Up Contribution Account and his Employer Contribution Account an amount
not to exceed the lesser of (i) the balance of such Accounts, or (ii) the amount determined
by the Committee as being available for withdrawal pursuant to this Paragraph. In all cases,
the minimum amount of a hardship distribution and the limits on the number of hardship
distributions shall be determined under rules and procedures adopted by the Committee from
time to


 


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time. For purposes of this paragraph, financial hardship shall mean the immediate
and heavy financial needs of the Participant. A withdrawal based upon financial hardship
pursuant to this Paragraph shall not exceed the amount required to meet the immediate
financial need created by the hardship and not reasonably available from other resources of
the Participant. The amount required to meet the immediate financial need may include any
amounts necessary to pay any federal, state, or local income taxes or penalties reasonably
anticipated to result from the distribution. A withdrawal shall be deemed to be made on
account of an immediate and heavy financial need of a Participant if the withdrawal is for:



(1) Expenses for (or necessary to obtain) medical care that would be deductible
under Section 213(d) of the Code (determined without regard to whether the expenses
exceed 7.5% of adjusted gross income);




(2) Costs directly related to the purchase of a principal residence of the
Participant (excluding mortgage payments);




(3) Payment of tuition, related educational fees, and room and board expenses,
for up to the next twelve months of post-secondary education for the Participant,
the Participant’s spouse, children, or dependents (as defined in Section 152 of the
Code and without regard to Sections 152(b)(1), (b)(2) and (d)(1)(B)) of the Code;




(4) Payments necessary to prevent the eviction of the Participant from his
principal residence or foreclosure on the mortgage of the Participant’s principal
residence; or




(5) Payments for burial or funeral expenses for the Participant’s deceased
parent, spouse, children or dependents (as defined in Section 152 of the Code and
without regard to Sections 152(b)(1), (b)(2) and (d)(1)(B)); or




(6) Expenses for the repair of damage to the Participant’s principal residence
that would qualify for the casualty deduction under Section 165 of the Code
(determined without regard to whether the loss exceeds 10% of adjusted gross
income).


 


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The above notwithstanding, (i) withdrawals under this Paragraph from a Participant’s
Before-Tax Account shall be limited to the sum of the Participant’s Before-Tax Contributions
to the Plan, plus income allocable to the Participant’s Before-Tax Contributions and
credited to the Participant’s Before-Tax Account as of December 31, 1988, less any previous
withdrawals of such amounts, (ii) withdrawals from a Participant’s Catch-Up Contribution
Account shall be limited to the Participant’s Catch-Up Contributions pursuant to Section
3.1(h), less any previous withdrawals of such amounts, and (iii) Employer Discretionary
Qualified matching Contributions utilized to satisfy the restrictions set forth in Section
3.1(e), and income allocable thereto, shall not be subject to withdrawal. A Participant who
receives a distribution pursuant to this Paragraph on account of hardship shall be
prohibited from making elective deferrals and employee contributions under this and all
other plans maintained by the Employer or any Controlled Entity for six (6) months after
receipt of the distribution.




11.2 Restriction on In-Service Withdrawals.




(a) All withdrawals pursuant to this Article shall be made in accordance with
procedures established by the Committee.




(b) Notwithstanding the provisions of this Article, no withdrawal shall be made from an
Account to the extent such Account has been pledged to secure a loan from the Plan.




(c) If a Participant’s Account from which a withdrawal is made is invested in more than
one Investment Fund, the withdrawal shall be made pro rata from each Investment Fund (under
which withdrawals are available) in which such Account is invested.




(d) All withdrawals under this Article shall be paid in cash; provided, however, that a
Participant may elect to have withdrawals pursuant to Section 11.1 paid in full shares of
Company Stock (with any fractional shares to be paid in cash) to the extent that the
Accounts from which such withdrawals are made are invested in such stock.




(e) Any withdrawal hereunder that constitutes an Eligible Rollover Distribution shall
be subject to the Direct Rollover election described in Section 10.3.




(f) This Article shall not be applicable to a Participant following a Severance from
Employment and the amounts in such Participant’s Accounts shall be distributable only in
accordance with the provisions of Article X.



XII. Loans




The Plan authorizes the Trustee to make loans on a nondiscriminatory basis to a Participant or
beneficiary in accordance with the written loan policy established by the Committee attached as
Appendix B, as amended from time to time; provided (i) the loan policy
satisfies the requirements of this Article XII; (ii) loans are available to all Participants and
beneficiaries on a reasonably equivalent basis and are not available in a greater amount for Highly
Compensated Employees than for other Employees; (iii) any loan is adequately secured and bears a
reasonable rate of interest; (iv) the loan provides for repayment within a specified time; (v) the
default provisions of the note prohibit offset of the Participant’s Account balance prior to the
time the Trustee otherwise would distribute the Participant’s Account balance; and (vii) the loan
otherwise conforms to the exemption provided by Section 4975(d)(1) of the Code.


 


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The loan policy must be a written document and must include (i) the identity of the person or
positions authorized to administer the participant loan program; (ii) a procedure for applying for
the loan; (iii) the criteria for approving or denying a loan; (iv) the limitations, if any, on the
types and amounts of loans available; (v) the procedure for determining a reasonable rate of
interest; (vi) the types of collateral which may secure the loan; and (vii) the events constituting
default and the steps the Plan will take to preserve Plan assets in the event of default. This
Section specifically incorporates the written loan policy adopted by the Committee, as revised from
time to time, attached to the Plan as Appendix B.



XIII. Administration of the Plan




13.1 General Administration of the Plan. The general administration of the Plan shall
be vested in the Committee. For purposes of the Act, the Committee shall be the Plan
“administrator” and shall be the “named fiduciary” with respect to the general administration of
the Plan (except as to the investment of the assets of the Trust Fund).



Each member of the Committee shall serve until he resigns, dies or is removed by the Committee or
the Compensation Committee. The Committee may remove any of its members at any time, with or
without cause, by unanimous vote of the remaining members of the Committee and by written notice to
such member; further, the Compensation Committee may remove any of the Committee members, with or
without cause, and shall provide written notice to such member. Any member may resign by
delivering a written resignation to the Committee and the Compensation Committee, such resignation
to become effective as of a date specified in such notice that is on or after the date such notice
is given as herein provided. A member of the Committee who is an employee of the Company or any of
its affiliates shall cease to be a member of the committee as of the date he ceases to be employed
by the Company or any of its affiliates. Vacancies in the Committee arising by death, resignation
or removal shall be filled by the Committee. The Committee may select officers (including a
Chairman) and may appoint a secretary who need not be a member of the Committee.



13.2 Records and Procedures. The Committee shall keep appropriate records of its
proceedings and the administration of the Plan and shall make available for examination during
business hours to any Participant or beneficiary such records as pertain to that individual’s
interest in the Plan. The Committee shall designate the person or persons who shall be authorized
to sign for the Committee and, upon such designation, the signature of such person or persons shall
bind the Committee.


 


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13.3 Meetings. The Committee shall hold meetings upon such notice and at such time and
place as it may from time to time determine. Notice to a member shall not be required if waived in
writing by that member. A majority of the members of the Committee duly appointed shall constitute
a quorum for the transaction of business. All resolutions or other actions taken by the Committee
at any meeting where a quorum is present shall be by vote of a majority of those present at such
meeting and entitled to vote. Resolutions may be adopted of other action taken without a meeting
upon written consent signed by all of the members of the Committee. The Committee may hold any
meeting telephonically and any business conducted at a telephonic meeting shall have the same force
and effect as if the Members had met in person.



13.4 Self-Interest of Participants. No member of the Committee shall have any right to
vote or decide upon any matter relating solely to himself under the Plan or to vote in any case in
which his individual right to clam any benefit under the Plan is particularly involved. In any case
in which a Committee member is so disqualified to act and the remaining members cannot agree, the
Directors or the Compensation Committee shall appoint a temporary substitute member to exercise all
the powers of the disqualified member concerning the matter in which he is disqualified.



13.5 Compensation and Bonding. The members of the Committee shall not receive
compensation with respect to their services for the Committee. To the extent required by the Act or
other applicable law, or required by the Company, members of the Committee shall furnish bond or
security for the performance of their duties hereunder.



13.6 Committee Powers and Duties. The Committee shall supervise the administration and
enforcement of the Plan according to the terms and provisions hereof and shall have all powers
necessary to accomplish these purposes, including, but not by way of limitation, the right, power,
authority, and duty:




(a) To make rules, regulations, and bylaws for the administration of the Plan that are
not inconsistent with the terms and provisions hereof and to enforce the terms of the Plan
and the rules and regulations promulgated thereunder by the Committee;




(b) To construe in its discretion all terms, provisions, conditions, and limitations of
the Plan; and, in all cases, the construction necessary for the Plan to qualify under the
applicable provisions of the Code shall control;




(c) To correct any defect or to supply any omission or to reconcile any inconsistency
that may appear in the Plan in such manner and to such extent as it shall deem expedient in
its discretion to effectuate the purposes of the Plan;




(d) To employ and compensate such accountants, attorneys, investment advisors, and
other agents, employees, and independent contractors as the Committee may deem necessary or
advisable for the proper and efficient administration of the Plan;




(e) To determine in its discretion all questions relating to eligibility;


 


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(f) To make a determination in its discretion as to the right of any person to a
benefit under the Plan and to prescribe procedures to be followed by distributees in
obtaining benefits hereunder;




(g) To prepare, file, and distribute, in such manner as the Committee determines to be
appropriate, such information and material as is required by the reporting and disclosure
requirements of the Act;




(h) To furnish the Employer any information necessary for the preparation of such
Employer’s tax return or other information that the Committee determines in its discretion
is necessary for a legitimate purpose;




(i) To require and obtain from the Employer and the Participants any information or
data that the Committee determines is necessary for the proper administration of the Plan;




(j) To instruct the Trustee as to the loans to Participants pursuant to the provisions
of Article XII;




(k) To appoint investment managers pursuant to Section 15.4;




(l) To receive and review reports from the Trustee and from investment managers as to
the financial condition of the Trust Fund, including its receipts and disbursements;




(m) To establish or designate Investment Funds as investment options as provided in
Article V; and




(n) To designate entities as participating Employers under the Plan pursuant to Article
XVIII.



Any provisions of the Plan to the contrary notwithstanding, benefits under the Plan will be
paid only if the Committee decides in its discretion that the applicant is entitled to them.



13.7 Employer to Supply Information. The Employer shall supply full and timely
information to the Committee, including, but not limited to, information relating to each
Participant’s Compensation, age, retirement, death, or other cause of Severance from Employment and
such other pertinent facts as the Committee may require. The Employer shall advise the Trustee of
such of the foregoing facts as are deemed necessary for the Trustee to carry out the Trustee’s
duties under the Plan. When making a determination in connection with the Plan, the Committee shall
be entitled to rely upon the aforesaid information furnished by the Employer.



13.8 Temporary Restrictions. In order to ensure an orderly transition in the transfer
of assets to the Trust Fund from another trust fund maintained under the Plan or from the trust
fund of a plan that is merging into the Plan or transferring assets to the Plan, the Committee may,
in its discretion, temporarily prohibit or restrict withdrawals, loans, changes to contribution
elections, changes of investment designation of future contributions, transfers of amounts
from one Investment Fund to another Investment Fund, or such other activity as the Committee deems
appropriate; provided that any such temporary cessation or restriction of such activity shall be in
compliance with all applicable law.


 


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13.9 Indemnification. The Company shall indemnify and hold harmless each member of the
Committee and each Employee who is a delegate of the Committee against any and all expenses and
liabilities arising out of his administrative functions or fiduciary responsibilities, including
any expenses and liabilities that are caused by or result from an act or omission constituting the
negligence of such individual in the performance of such functions or responsibilities, but
excluding expenses and liabilities that are caused by of result from such individual’s own gross
negligence or willful misconduct. Expenses against which such individual shall be indemnified
hereunder shall include, without limitation, the amounts of any settlement or judgment, costs,
counsel fees, and related charges reasonably incurred in connection with a claim asserted or a
proceeding brought or settlement thereof.




13.10 Claims Procedures.




(a) Definitions. For purposes of this Section, the following terms, when
capitalized, will be defined as follows:




(1) Adverse Benefit Determination: Any denial, reduction or termination
of or failure to provide or make payment (in whole or in part) for a Plan benefit,
including any denial, reduction, termination or failure to provide or make payment
that is based on a determination of a Claimant’s eligibility to participate in the
Plan. Further, any invalidation of a claim for failure to comply with the claim
submission procedure will be treated as an Adverse Benefit Determination.




(2) Benefits Administrator: The person or office to whom the Committee
has delegated day-to-day Plan administration responsibilities and who, pursuant to
such delegation, processes Plan benefit claims in the ordinary course.




(3) Claimant: A Participant or beneficiary or an authorized
representative of such Participant or beneficiary who has filed or desires to file a
claim for a Plan benefit.




(b) Filing of Benefit Claim. To file a benefit claim under the Plan, a Claimant
must obtain from the Benefits Administrator the information and benefit election forms, if
any, provided for in the Plan and otherwise follow the procedures established from time to
time by the Committee or the Benefits Administrator for claiming Plan benefits. If, after
reviewing the information so provided, the Claimant needs additional information regarding
his Plan benefits, he may obtain such information by submitting a written request to the
Benefits Administrator describing the additional information needed. A Claimant may only
request a Plan benefit by fully completing and submitting to the Benefits Administrator the
benefit election forms, if any, provided for in the Plan
and otherwise following the procedures established from time to time by the Committee
or the Benefits Administrator for claiming Plan benefits.


 


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(c) Processing of Benefit Claim. Upon receipt of a fully completed benefit
claim from a Claimant, the Benefits Administrator shall determine if the Claimant’s right to
the requested benefit, payable at the time or times and in the form requested, is clear and,
if so, shall process such benefit claim without resort to the Committee. If the Benefits
Administrator determines that the Claimant’s right to the requested benefit, payable at the
time or times and in the form requested, is not clear, it shall refer the benefit claim to
the Committee for review and determination, which referral shall include:




(1) All materials submitted to the Benefits Administrator by the Claimant in
connection with the claim;




(2) A written description of why the Benefits Administrator was of the view
that the Claimant’s right to the benefit, payable at the time or times and in the
form requested, was not clear;




(3) A description of all Plan provisions pertaining to the benefit claim;




(4) Where appropriate, a summary as to whether such Plan provisions have in
the past been consistently applied with respect to other similarly situated
Claimants; and




(5) Such other information as may be helpful or relevant to the Committee in
its consideration of the claim.




If the Claimant’s claim is referred to the Committee, the Claimant may examine any relevant
document relating to his claim and may submit written comments or other information to the
Committee to supplement his benefit claim. Within thirty days of receipt from the Benefits
Administrator of a benefit claim referral (or such longer period as may be necessary due to
unusual circumstances or to enable the Claimant to submit comments), but in any event not
later than will permit the Committee sufficient time to fully and fairly consider the claim
and make a determination within the time frame provided in Paragraph (d) below, the
Committee shall consider the referral regarding the claim of the Claimant and make a
decision as to whether it is to be approved, modified or denied. If the claim is approved,
the Committee shall direct the Benefits Administrator to process the approved claim as soon
as administratively practicable.




 


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(d) Notification of Adverse Benefit Determination. In any case of an Adverse
Benefit Determination of a claim for a Plan benefit, the Committee shall furnish written
notice to the affected Claimant within a reasonable period of time but not later than ninety
days after receipt of such claim for Plan benefits (or within 180 days if special
circumstances necessitate an extension of the ninety-day period and the Claimant is informed
of such extension in writing within the ninety-day period and is provided with an extension
notice consisting of an explanation of the special circumstances requiring
the extension of time and the date by which the benefit determination will be
rendered). Any notice that denies a benefit claim of a Claimant in whole or in part shall,
in a manner calculated to be understood by the Claimant:




(1) State the specific reason or reasons for the Adverse Benefit Determination;




(2) Provide specific reference to pertinent Plan provisions on which the
Adverse Benefit Determination is based;




(3) Describe any additional material or information necessary for the Claimant
to perfect the claim and explain why such material or information is necessary;




(4) Describe the Plan’s review procedures and the time limits applicable to
such procedures, including a statement of the Claimant’s right to bring a civil
action under Section 502(a) of the Act following an Adverse Benefit Determination on
review; and




(5) Describe the Claimant’s right to bring legal action under Section 502(a) of
the Act.




(e) Review of Adverse Benefit Determination. A Claimant has the right to have
an Adverse Benefit Determination reviewed in accordance with the following claims review
procedure:




(1) The Claimant must submit a written request for such review to the Committee
not later than 60 days following receipt by the Claimant of the Adverse Benefit
Determination notification;




(2) The Claimant shall have the opportunity to submit written comments,
documents, records, and other information relating to the claim for benefits to the
Committee;




(3) The Claimant shall have the right to have all comments, documents, records,
and other information relating to the claim for benefits that have been submitted by
the Claimant considered on review without regard to whether such comments,
documents, records or information were considered in the initial benefit
determination; and




(4) The Claimant shall have reasonable access to, and copies of, all documents,
records, and other information relevant to the claim for benefits free of charge
upon request, including (i) documents, records or other information relied upon for
the benefit determination, (ii) documents, records or other information submitted,
considered or generated without regard to whether such documents, records or other
information were relied upon in making the benefit
determination, and (iii) documents, records or other information that
demonstrates compliance with the standard claims procedure.


 


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The decision on review by the Committee will be binding and conclusive upon all persons, and
the Claimant shall neither be required nor be permitted to pursue further appeals to the
Committee.




(f) Notification of Benefit Determination on Review. Notice of the Committee’s
final benefit determination regarding an Adverse Benefit Determination will be furnished in
writing or electronically to the Claimant after a full and fair review. Notice of an Adverse
Benefit Determination upon review will:




(1) State the specific reason or reasons for the Adverse Benefit Determination;




(2) Provide specific reference to pertinent Plan provisions on which the
Adverse Benefit Determination is based;




(3) State that the Claimant is entitled to receive, upon request and free of
charge, reasonable access to, and copies of all documents, records, and other
information relevant to the Claimant’s claim for benefits including (i) documents,
records or other information relied upon for the benefit determination, (ii)
documents, records or other information submitted, considered or generated without
regard to whether such documents, records or other information were relied upon in
making the benefit determination, and (iii) documents, records or other information
that demonstrates compliance with the standard claims procedure; and




(4) Describe the Claimant’s right to bring legal action under Section 502(a) of
the Act.




The Committee shall notify a Claimant of its determination on review with respect to the
Adverse Benefit Determination of the Claimant within a reasonable period of time but not
later than sixty days after the receipt of the Claimant’s request for review unless the
Committee determines that special circumstances require an extension of time for processing
the review of the Adverse Benefit Determination. If the Committee determines that such
extension of time is required, written notice of the extension (which shall indicate the
special circumstances requiring the extension and the date by which the Committee expects to
render the determination on review) shall be furnished to the Claimant prior to the
termination of the initial sixty-day review period. In no event shall such extension exceed
a period of sixty days from the end of the initial sixty-day review period. In the event
such extension is due to the Claimant’s failure to submit necessary information, the period
for making the determination on a review will be tolled from the date on which the
notification of the extension is sent to the Claimant until the date on which the Claimant
responds to the request for additional information.


 


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(g) Exhaustion of Administrative Remedies. Completion of the claims procedures
described in this Section will be a condition precedent to the commencement of any legal or
equitable action in connection with a claim for benefits under the Plan by a Claimant or by
any other person or entity claiming rights individually or through a Claimant; provided,
however, that the Committee may, in its sole discretion, waive compliance with such claims
procedures as a condition precedent to any such action.




(h) Payment of Benefits. If the Benefits Administrator or Committee determines
that a Claimant is entitled to a benefit hereunder, payment of such benefit will be made to
such Claimant (or commence, as applicable) as soon as administratively practicable after the
date the Benefits Administrator or Committee determines that such Claimant is entitled to
such benefit or on any other later date designated by and in the discretion of the
Committee.




(i) Authorized Representatives. An authorized representative may act on behalf
of a Claimant in pursuing a benefit claim or an appeal of an Adverse Benefit Determination.
An individual or entity will only be determined to be a Claimant’s authorized representative
for such purposes if the Claimant has provided the Committee with a written statement
identifying such individual or entity as his authorized representative and describing the
scope of the authority of such authorized representative. In the event a Claimant identifies
an individual or entity as his authorized representative in writing to the Committee but
fails to describe the scope of the authority of such authorized representative, the
Committee shall assume that such authorized representative has full powers to act with
respect to all matters pertaining to the Claimant’s benefit claim under the Plan or appeal
of an Adverse Benefit Determination with respect to such benefit claim.



XIV. Trustee and Administration of Trust Fund




14.1 Trust Agreement. As a means of administering the assets of the Plan, the Company
has entered into a Trust Agreement. The administration of the assets of the Plan and the duties,
obligations, and responsibilities of the Trustee shall be governed by the Trust Agreement. The
Trust Agreement may be amended from time to time as the Company and the Trustee deem advisable in
order to effectuate the purposes of the Plan. The Trust Agreement is incorporated herein by
reference and thereby made a part of the Plan.



14.2 Payment of Expenses. All expenses incident to the administration of the Plan and
Trust, including but not limited to, legal, accounting, Trustee fees, direct expenses of the
Employer and the Committee in the administration of the Plan, and the cost of furnishing any bond
or security required of the Committee shall be paid by the Trustee from the Trust Fund, and, until
paid, shall constitute a claim against the Trust Fund which is paramount to the claims of
Participants and beneficiaries; provided, however, that (i) the obligation of the Trustee to pay
such expenses from the Trust Fund shall cease to exist to the extent such expenses are paid by the
Employer, and (ii) in the event the Trustee’s compensation is to be paid, pursuant to this Section,
from the Trust Fund, any individual serving as Trustee who already receives full-time pay from an
Employer or an association of Employers whose employees are Participants, or from
an employee organization whose members are Participants, shall not receive any additional
compensation for serving as Trustee. This Section shall be deemed to be a part of any contract to
provide for expenses of Plan and Trust administration, whether or not the signatory to such
contract is, as a matter of convenience, the Employer.


 


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14.3 Trust Fund Property. All income, profits, recoveries, contributions, forfeitures,
and any and all moneys, securities, and properties of any kind at any time received or held by the
Trustee shall be held for investment purposes as a commingled Trust Fund. The Committee shall
maintain Accounts in the name of each Participant, but the maintenance of an Account designated as
the Account of a Participant shall not mean that such Participant shall have a greater or lesser
interest than that due him by operation of the Plan and shall not be considered as segregating any
funds or property from any other funds or property contained in the commingled fund. No Participant
shall have any title to any specific asset in the Trust Fund.



14.4 Distributions from Participants’ Accounts. Distributions from a Participant’s
Accounts shall be made by the Trustee only if, when, and in the amount and manner directed by the
Committee. Any distribution made to a Participant or for his benefit shall be debited to such
Participant’s Account or Accounts. All distributions hereunder shall be made in cash except as
otherwise specifically provided herein.



14.5 Payments Solely from Trust Fund. All benefits payable under the Plan shall be
paid or provided for solely from the Trust Fund, and neither the Employer nor the Trustee assumes
any liability or responsibility for the adequacy thereof. The Committee or the Trustee may require
execution and delivery of such instruments as are deemed necessary to assure proper payment of any
benefits.



14.6 No Benefits to the Employer. No part of the corpus or income of the Trust Fund
shall be used for any purpose other than the exclusive purpose of providing benefits for the
Participants and their beneficiaries and of defraying reasonable expenses of administering the Plan
and Trust Anything to the contrary herein notwithstanding, the Plan shall not be construed to vest
any rights in the Company or in the Employer other than those specifically given hereunder.



XV. Fiduciary Provisions




15.1 Article Controls. This Article shall control over any contrary, inconsistent or
ambiguous provisions contained in the Plan.



15.2 General Allocation of Fiduciary Duties. Each fiduciary with respect to the Plan
shall have only those specific powers, duties, responsibilities and obligations as are specifically
given him under the Plan. The Directors shall have the sole authority to appoint and remove the
Trustee. Except as otherwise specifically provided herein and in the Trust Agreement, the Committee
shall have the sole responsibility for the administration of the Plan, which responsibility is
specifically described herein. Except as otherwise specifically provided herein and in the Trust
Agreement, the Trustee shall have the sole responsibility for the administration, investment, and
management of the assets held under the Plan. It is intended under the Plan that
each fiduciary shall be responsible for the proper exercise of his own powers, duties,
responsibilities, and obligations hereunder arid shall not be responsible for any act or failure to
act of another fiduciary except to the extent provided by law or as specifically provided herein.


 


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15.3 Delegation and Allocation of Fiduciary Duties. The Committee may appoint
subcommittees, individuals, or any other agents as it deems advisable and may delegate to any of
such appointees any or all of the powers and duties of the Committee. Such appointment and
delegation must be in writing, specifying the powers or duties being delegated, and must be
accepted in writing by the delegates. Upon such appointment, delegation, and acceptance, the
delegating Committee members shall have no liability for the acts or omissions of any such
delegate, as long as the delegating Committee members do not violate any fiduciary responsibility
in making or continuing such delegation.



15.4 Investment Manager. The Committee may, in its sole discretion, appoint an
“investment manager,” with power to select any or all of the Investment Funds available pursuant to
Section 5.1 and/or with power to manage, acquire, or dispose of any asset of the Plan and to direct
the Trustee in this regard, so long as:




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




(b) Such investment manager acknowledges in writing that he is a fiduciary with respect
to the Plan.



Upon such appointment, the Committee shall not be liable for the acts of the investment manager, as
long as the Committee members do not violate any fiduciary responsibility in making or continuing
such appointment. The Trustee shall follow the directions of such investment manager and shall not
be liable for the acts or omissions of such investment manager. The investment manager may be
removed by the Committee at any time and within its sole discretion.



15.5 Independent Fiduciary. The Committee may, at its sole discretion, appoint an
Independent Fiduciary, who must be an investment manager as defined in Section 15.4(a), with the
sole and exclusive authority and responsibility on behalf of the Plan to exercise all authority to:




(a) Determine whether acquiring or holding Company Stock in the Plan is no longer
consistent with the Act, and if so, to determine whether to:



(1) Prohibit or limit (for example, as a percentage of a Participant’s Account)
further purchases or holdings of Company Stock or increasing the Company Stock
Fund’s holding of cash or cash equivalent investments, and in the event of such
prohibition or limitation, to designate, as necessary, an alternative investment
fund for the investment of the proceeds or contributions pending further investment
directions from the Participants and beneficiaries;




 


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(2) Liquidate some or all of the Plan’s holdings in the Company Stock Fund and
determine how such liquidation should be accomplished and in the event of such
liquidation, to designate, as necessary, an alternative investment fund for the
investment of the proceeds or contributions pending further investment directions
from the Participants and beneficiaries; or




(3) Terminate the availability of the Company Stock Fund as an investment
option under the Plan on such terms and conditions as the Independent Fiduciary
shall deem prudent and in the interests of the Plan, Participants and beneficiaries
(and notwithstanding any Participant or beneficiary investment directions to the
contrary), including the determination of the manner and timing of termination of
the Company Stock Fund and orderly liquidation of its assets and designation of an
alternative investment fund for the investment of the proceeds or contributions
pending further investment directions from the Participants and beneficiaries;




(b) Direct the Trustee to execute and deliver to the Independent Fiduciary such forms
and other documents as the Independent Fiduciary may determine are advisable to be filed
with the Securities and Exchange Commission or other governmental agency;




(c) Serve as the fiduciary responsible for ensuring the confidentiality of the proxy
voting process; and




(d) Subject to the Committee’s right to reasonable notice and opportunity to review and
comment on any proposed communication to Participants, which comments shall be reflected in
such communication except to the extent the Independent Fiduciary reasonably determines such
comments to be inconsistent with their duties as detailed herein, direct the Plan’s record
keeper to make such communications to Participants and beneficiaries as the Independent
Fiduciary reasonably determines to be necessary in connection with the exercise of its
responsibilities with respect to the Plan.



Upon such appointment, the Committee shall not be liable for the acts of the Independent
Fiduciary. An Independent Fiduciary may be removed by the Committee at any time and within its sole
discretion.


 


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XVI. Amendments




16.1 Right to Amend. Subject to Section 16.2 and any other limitations contained in
the Act or the Code, the Directors or the Compensation Committee of the Company’s Board of
Directors may from time to time amend, in whole or in part, any or all of the provisions of the
Plan on behalf of the Company and all Employers; provided, however, that (i) any amendments to the
Plan that do not have a significant cost impact on the Employer may also be made by the Committee,
and (ii) any amendments to the Plan that do not have any cost impact on the Employer may also be
made by the Chairman of the Committee. Further, but not by way of limitation, the Directors, the
Compensation Committee of the Company’s Board of Directors, the Committee, or the Chairman of the
Committee may make any amendment necessary to acquire and maintain a qualified status for the Plan
under the Code or to maintain the Plan in compliance with applicable law, whether or not
retroactive.



16.2 Limitation on Amendments. No such amendment shall allow any portion of the
principal or income of the fund to be used for any purposes other than for the exclusive benefit of
Participants or beneficiaries at any time prior to the satisfaction of all the liabilities under
the Plan with respect to such persons. No amendment shall reduce a Participant’s Account balance on
the effective date of the Plan amendment or eliminate an optional form of benefit under the Plan
with respect to the Participant’s Account balance on the date of the amendment to the extent
prohibited by Section 411 of the Code and related Treasury Regulations. No amendment shall increase
the duties or responsibilities of the Trustee unless the Trustee consents thereto in writing.



No amendment shall retroactively decrease a Participant’s accrued benefits or otherwise
retroactively place greater restrictions or conditions on a Participant’s rights to Section
411(d)(6) protected benefits, even if the amendment adds a restriction or condition that is
otherwise permitted under Section 411(a) of the Code, unless otherwise permitted under Treasury
Regulations Sections 1.411(d)-3 or 1.411(d)-4. Effective January 1, 2007, an optional form of
benefit hereunder may be eliminated prospectively provided that the Plan will satisfy the
requirements of Treasury Regulations Sections 1.411(d)-3(c), (d) or (e) or 1.411(d)-4.



XVII. Discontinuance of Contributions, Termination, Partial Termination,

and Merger or Consolidation




17.1 Right to Discontinue Contributions, Terminate, or Partially Terminate. The
Company and the Employer have established the Plan with the bona fide intention and expectation
that from year to year it will be able to, and will deem it advisable to, make its contributions as
herein provided. However, the Company and the Employer realize that circumstances not now foreseen,
or circumstances beyond its control, may make it either impossible or inadvisable for the Employer
to continue to make its contributions to the Plan. Therefore, the Directors shall have the power to
discontinue contributions to the Plan, terminate the Plan, or partially terminate the Plan at any
time hereafter. Each member of the Committee and the Trustee shall be notified of such
discontinuance termination, or partial termination.


 


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17.2 Procedure in the Event of Discontinuance of Contributions, Termination, or Partial
Termination.




(a) If the Plan is amended so as to permanently discontinue Employer Contributions, or
if Employer Contributions are in fact permanently discontinued, the vested interest of each
affected Participant shall be 100%, effective as of the date of discontinuance. In case of
such discontinuance, the Committee shall remain in existence and all other provisions of the
Plan that are necessary, in the opinion of the Committee, for equitable operation of the
Plan shall remain in force.




(b) If the Plan is terminated or partially terminated, the vested interest of each
affected Participant shall be 100%, effective as of the termination date or partial
termination date, as applicable. Unless the Plan is otherwise amended prior to dissolution
of the Company, the Plan shall terminate as of the date of dissolution of the Company.




(c) Upon discontinuance of contributions, termination, or partial termination, any
previously, unallocated contributions and forfeitures shall be allocated among the Accounts
of the Participants on such date of discontinuance, termination, or partial termination
according to the provisions of Article IV. Thereafter, the net income (or net loss) shall
continue to be allocated to the Accounts of the Participants until the balances of the
Accounts are distributed.




In the case of a termination of the Plan, the Accounts of a Participant shall, subject
to the consent provisions of Article X, be distributed to such Participant in a “lump sum
distribution” as such term is defined below; provided, however, a distribution may not be
made if the Employer establishes or maintains another “Alternative Defined Contribution
Plan”. For purposes of this Section 17.2(c), an “Alternative Defined Contribution Plan” is a
defined contribution plan that exists at any time during the period beginning on the date of
Plan termination and ending 12 months after distribution of all assets 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 under the defined
contribution plan that includes the cash or deferred arrangement as of the date of Plan
termination are eligible under the other defined contribution plan, the other Plan is not an
Alternative Defined Contribution Plan. In addition, a defined contribution plan is not
treated as an Alternative Defined Contribution Plan if it is an employee stock ownership
plan, as defined in Section 4975(e)(7) or Section 409(a) of the Code, a simplified employee
pension plan as defined in Section 408(k) of the Code, a SIMPLE IRA plan as defined in
Section 408(p) of the Code, a plan or contract that satisfies the requirements of Section
403(b) of the Code, or a plan that is described in Section 457(b) or (t) of the Code. The
term “lump sum distribution” shall have the meaning provided in Section 402(e)(4)(D) of the
Code (without regard to Section 402(e)(4)(D)(i)(I), (II), (III) and (IV) of the Code). In
the case of a Participant who is affected by a partial termination of the Plan, the Accounts
of such Participant shall, subject to the consent provisions of Article X, be distributed in
accordance with the applicable provisions of Article X after he has incurred a Severance
from Employment.


 


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17.3 Merger, Consolidation, or Transfer. This Plan and Trust Fund may not merge or
consolidate with, or transfer its assets or liabilities to, any other plan, unless immediately
thereafter each Participant would, in the event such other plan terminated, be entitled to a
benefit which is equal to or greater than the benefit to which he would have been entitled if the
Plan were terminated immediately before the merger, consolidation, or transfer.



XVIII. Participating Employers





18.1 Participation and Designation of Other Employers.




(a) The Committee may designate any entity or organization eligible by law to
participate in the Plan and the Trust as an Employer by written instrument delivered to the
Secretary of the Company and the designated Employer. Such written instrument shall specify
the effective date of such designated participation, may incorporate specific provisions
relating to the operation of the Plan which apply to the designated Employer only, and shall
become, as to such designated Employer and its Employees, a part of the Plan.




(b) Each designated Employer shall be conclusively presumed to have consented to its
designation or participation, as applicable, and to have agreed to be bound by the terms of
the Plan and any and all amendments thereto upon its submission of information to the
Committee required by the terms of or with respect to the Plan or upon making a contribution
to the Trust Fund pursuant to the terms of the Plan; provided, however, that the terms of
the Plan may be modified so as to increase the obligations of an Employer only with the
consent of such Employer, which consent shall be conclusively presumed to have been given by
such Employer upon its submission of any information to the Committee required by the terms
of or with respect to the Plan or upon making a contribution to the Trust Fund pursuant to
the terms of the Plan following notice of such modification.




(c) The provisions of the Plan and the Trust Agreement shall apply separately and
equally to each Employer and its Employees in the same manner as is expressly provided for
the Company and its Employees, except that the power to appoint or otherwise affect the
Committee or the Trustee and the power to amend or terminate the Plan and the Trust
Agreement shall be exercised by the Directors alone (except as provided in Section 16.1).




(d) Transfer of employment among Employers shall not be considered a Severance from
Employment hereunder.




(e) Any Employer may, by appropriate action of its Board of Directors or noncorporate
counterpart that is communicated in writing to the Secretary of the Company and to the
Committee, terminate its participation in the Plan and the Trust. Moreover, the Committee
may, in its discretion, terminate an Employer’s Plan and Trust participation at any time by
written instrument delivered to the Secretary of the Company and the designated Employer.


 


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18.2 Single Plan. For purposes of the Code and the Act, the Plan as adopted by the
Employers shall constitute a single plan rather than a separate plan of each Employer. All assets
in the Trust Fund shall be available to pay benefits to all Participants and their beneficiaries.



XIX. Miscellaneous Provisions




19.1 Not Contract of Employment. The adoption and maintenance of the Plan shall not be
deemed to be a contract between the Employer and any person or to be consideration for the
employment of any person. Nothing herein contained shall be deemed to give any person the right to
be retained in the employ of the Employer or to restrict the right of the Employer to discharge any
person at any time nor shall the Plan be deemed to give the Employer the right to require any
person to remain in the employ of the Employer or to restrict any person’s right to terminate his
employment at any time.



19.2 Spendthrift Clause. Except as provided below, no Participant, former Participant
or beneficiary shall have the right to anticipate, assign or alienate any benefit provided under
the Plan, and the Trustee will not recognize any anticipation, assignment or alienation.
Furthermore, a benefit under the Plan is not subject to attachment, garnishment, levy, execution or
other legal or equitable process. All provisions of this Section 19.2 shall be for the exclusive
benefit of those designated herein. These restrictions shall not apply in the following case(s):




(a) Distributions Pursuant to Qualified Domestic Relations Orders. The
Committee may direct the Trustee under the nondiscriminatory policy adopted by the Committee
to pay an Alternate Payee designated under a “qualified domestic relations order” as defined
in Section 414(p) of the Code (or any domestic relations order entered before January 1,
1985 if payment of benefits pursuant to the order has commenced as of that date). To the
extent provided under a qualified domestic relations order, a former spouse of a Participant
shall be treated as the spouse or surviving spouse for all purposes of the Plan.




Upon receipt of a qualified domestic relations order, the Committee shall direct the
Trustee to pay the Alternate Payee designated under such qualified domestic relations order
the benefits awarded thereunder at the time and in the form elected by the Alternate Payee,
subject to the limitations of Article X and the applicable Treasury Regulations. Unless
otherwise provided in the qualified domestic relations order, an Alternate Payee shall be
eligible to receive payment as soon as administratively feasible following the Committee’s
receipt of the Alternate Payee’s written election for payment of benefits. The Committee
shall adopt such procedures as necessary, in accordance with a nondiscriminatory policy, to
effect the orderly administration of this Section 19.2(a). The amount payable, unless
otherwise specified in the qualified domestic relations order, shall be determined as of the
date immediately preceding the date of distribution to the Alternate Payee.




A qualified domestic relations order that otherwise satisfies the requirements under
Section 414(p) of the Code will not fail to be a qualified domestic relations order (i)
solely because the order is issued after, or revises, another domestic relations order
or a qualified domestic relations order or (ii) solely because of the time at which the
order is issued, including issuance after the annuity starting date or after the
Participant’s death.


 


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(b) Distributions Pursuant to Certain Judgments or Orders. The Committee may
direct the Trustee to comply with a judgment or settlement entered into on or after August
3, 1997, which requires the Trustee to reduce a Participant’s benefits under the Plan by an
amount that the Participant is ordered or required to pay to the Plan if each of the
following criteria are satisfied:




(1) The order or requirement must arise:




i. Under a judgment of conviction for a crime involving the Plan;




ii. Under a civil judgment (including a consent order or decree)
entered by a court in an action brought in connection with an actual or
alleged violation of Part 4 of Title I of the Act; or




iii. Under a settlement agreement with either the Secretary of Labor or
the Pension Benefit Guaranty Corporation and the Participant in connection
with an actual or alleged violation of Part 4 of Title I of the Act by a
fiduciary or any other person.




(2) The decree, judgment, order or settlement must expressly provide for the
offset of all or part of the amount ordered or required to be paid to the Plan
against the Participant’s benefits under the Plan.




(3) In addition, if the joint and survivor annuity requirements of Section
401(a)(11) of the Code apply with respect to distributions from the Plan to the
Participant and the Participant has a spouse at the time at which the offset is to
be made, then one of the following three conditions must be satisfied:




i. Such spouse has consented in writing to such offset and such consent
is witnessed by a notary public or representative of the Plan (or it is
established to the satisfaction of a Plan representative that such consent
may not be obtained by reason of circumstances described in Section
417(a)(2)(B) of the Code), or an election to waive the right of the spouse
to either a qualified joint and survivor annuity or a qualified
preretirement survivor annuity is in effect in accordance with the
requirements of Section 417(a) of the Code;




ii. Such spouse is ordered or required in such judgment, order, decree,
or settlement to pay an amount to the Plan in connection with a violation of
part 4 of subtitle B of Title I of the Act; or


 


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iii. In such judgment, order, decree, or settlement, such spouse
retains the right to receive the survivor annuity under a qualified joint
and survivor annuity provided pursuant to Section 401(a)(11)(A)(i) of the
Code and under a qualified preretirement survivor annuity provided pursuant
to Section 401(a)(11)(A)(ii) of the Code, determined in accordance with
Section 401(a)(13)(D) of the Code.



19.3 Uniformed Services, Employment and Reemployment Rights Act Requirements.
Notwithstanding any provision of the Plan to the contrary, contributions, benefits, and service
credit with respect to qualified military service will be provided in accordance with section
414(u) of the Code.



19.4 Payments to Minors and Incompetents. If a Participant or beneficiary entitled to
receive a benefit under the Plan; is a minor or is determined by the Committee in its discretion to
be incompetent or is adjudged by a court of competent jurisdiction to be legally incapable of
giving valid receipt and discharge for a benefit provided under the Plan, the Committee may pay
such benefit to the duly appointed guardian or conservator of such Participant or beneficiary for
the account of such Participant or beneficiary. If no guardian or conservator has been appointed
for such Participant or beneficiary, the Committee may pay such benefit to any third party who is
determined by the Committee, in its sole discretion, to be authorized to receive such benefit for
the account of such Participant or beneficiary. Such payment shall operate as a full discharge of
all liabilities and obligations of the Committee, the Trustee, the Employer, and any fiduciary of
the Plan with respect to such benefit.



19.5 Acquisition and Holding of Company Stock. The Plan is specifically authorized to
acquire and hold up to 100% of its assets in Company Stock so long as Company Stock is a
“qualifying employer security,” as such term is defined in Section 407(d)(5) of the Act.



19.6 Power of Attorney Designations. In accordance with the procedures established by
the Committee, a Participant may grant any individual a “Power of Attorney” to exercise, on behalf
of such Participant, any investment designation or conversion rights available to such Participant
under the Plan with respect to such Participant’s Accounts.



19.7 Participant’s and Beneficiary’s Address. It shall be the affirmative duty of each
Participant to inform the Committee of, and to keep on file with the Committee, his current mailing
address and the current mailing address of his designated beneficiary. If a Participant fails to
keep the Committee informed of his current mailing address and the current mailing address of his
designated beneficiary, neither the Committee, the Trustee, the Company, the Employer, nor any
fiduciary under the Plan shall be responsible for any late or lost payment of a benefit or for
failure of any notice to be provided timely, under the terms of the Plan.



19.8 Incorrect Information, Fraud, Concealment, or Error. Any contrary provisions of
the Plan notwithstanding, if, because of a human or systems error, or because of incorrect
information provided by or correct information failed to be provided by, fraud, misrepresentation,
or concealment of any relevant fact (as determined by the Committee) by any person the Plan enrolls
any individual, pays benefits under the Plan, incurs a liability or makes
any overpayment or erroneous payment, the Plan shall be entitled to recover from such person
the benefit paid or the liability incurred, together with all expenses incidental to or necessary
for such recovery.


 


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19.9 Severability. If any provision of this Plan shall be held illegal or invalid for
any reason, said illegality or invalidity shall not affect the remaining provisions hereof;
instead, each provision shall be fully severable and the Plan shall be construed and enforced as if
said illegal or invalid provision had never been included herein.



19.10 Jurisdiction. The situs of the Plan is Texas. All provisions of the Plan shall
be construed in accordance with the laws of Texas except to the extent preempted by federal law.



XX. Top-Heavy Status




20.1 Article Controls. Any Plan provisions to the contrary notwithstanding, the
provisions of this Article shall control to the extent required to cause the Plan to comply with
the requirements imposed under Section 416 of the Code.



20.2 Definitions. For purposes of this Article, the following terms and phrases shall
have these respective meanings:




(a) Account Balance: As of any Valuation Date, the aggregate amount credited to
an individual’s account or accounts under a qualified defined contribution plan maintained
by the Employer or a Controlled Entity, increased by (i) the aggregate distributions made to
such individual from such plan (including a terminated plan which, had it not been
terminated, would have been aggregated with the Plan under Section 416(g)(2)(A)(i) of the
Code) during a one-year period (or, in the case of a distribution made for a reason other
than separation from service, death or disability, a five-year period) ending on the
Determination Date and (ii) the amount of any contributions due as of the Determination Date
immediately following such Valuation Date.




(b) Accrued Benefit: As of any Valuation Date, the present value (computed on
the basis of the Assumptions) of the cumulative accrued benefit of an individual under a
qualified defined benefit plan maintained by the Employer or a Controlled Entity increased
by (i) the aggregate distributions made to such individual from such plan (including a
terminated plan which, had it not been terminated, would have been aggregated with the Plan
under Section 416(g)(2)(A)(i) of the Code) during a one-year period (or, in the case of a
distribution made for a reason other than separation from service, death or disability, a
five-year period) ending on the Determination Date, and (ii) the estimated benefit accrued
by such individual between such Valuation Date and the Determination Date immediately
following such Valuation Date. Solely for the purpose of determining top-heavy status, the
Accrued Benefit of an individual shall be determined under (i) the method, if any, that
uniformly applies for accrual purposes under all qualified defined benefit plans maintained
by the Employer and the Controlled Entities, or (ii) if there is no such method, as if such
benefit accrued not more rapidly than under the slowest accrual rate permitted under Section
411(b)(1)(C) of the Code.


 


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(c) Aggregation Group: The group of qualified plans maintained by the Employer
and each Controlled Entity consisting of (i) each plan in which a Key Employee participates
and each other plan that enables a plan in which a Key Employee participates to meet the
requirements of Section 401(a)(4) or 410 of the Code, or (ii) each plan in which a Key
Employee participates, each other plan that enables a plan in which a Key Employee
participates to meet the requirements of Section 401(a)(4) or 410 of the Code and any other
plan that the Employer elects to include as a part of such group; provided, however, that
the Employer may elect to include a plan in such group only if the group will continue to
meet the requirements of Sections 401(a)(4) and 410 of the Code with such plan being taken
into account.




(d) Assumptions: The interest rate and mortality assumptions specified for
top-heavy status determination purposes in any defined benefit plan included in the
Aggregation Group which includes the Plan.




(e) Determination Date: The last day of the preceding Plan Year.




(f) Key Employee: A “key employee” as defined in Section 416(i) of the Code and
the Treasury Regulations thereunder.




(g) Plan Year: With respect to any plan, the annual accounting period used by
such plan for annual reporting purposes.




(h) Remuneration: 415 Compensation.




(i) Valuation Date: With respect to any Plan Year of any defined contribution
plan, the most recent date within the twelve-month period ending on a Determination Date as
of which the trust fund established under such plan was valued and the net income (or loss)
thereof allocated to Participants’ accounts. With respect to any Plan Year of any defined
benefit plan, the most recent date within a twelve-month period ending on a Determination
Date as of which the plan assets were valued for purposes of computing plan costs for
purposes of the requirements imposed under section 412 of the Code.




20.3 Top-Heavy Status.




(a) The Plan shall be deemed to be top heavy for a Plan Year if, as of the
Determination Date for such Plan Year, (i) the sum of Account Balances of Participants who
are Key Employees exceeds 60% of the sum of Account Balances of all Participants unless an
Aggregation Group including the Plan is not top-heavy, or (ii) an Aggregation Group
including the Plan is top-heavy. An Aggregation Group shall be deemed to be top-heavy as of
a Determination Date if the sum (computed in accordance with Section 416(g)(2)(B) of the
Code and the Treasury Regulations promulgated thereunder) of (i) the Account Balances of Key
Employees under all defined contribution plans included in the Aggregation Group, and (ii)
the Accrued Benefits of Key Employees under all defined benefit plans included in the
Aggregation Group exceeds 60% of the sum of the Account Balances and the Accrued Benefits of
all individuals under such plans. Notwithstanding
the foregoing, the Account Balances and Accrued Benefits of individuals who are not Key
Employees in any Plan Year but who were Key Employees in any prior Plan Year shall not be
considered in determining the top-heavy status of the Plan for such Plan Year. Further,
notwithstanding the foregoing, the Account Balances and Accrued Benefits of individuals who
have not performed services for the Employer or any Controlled Entity at any time during the
one-year period ending on the applicable Determination Date shall not be considered.


 


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20.4 Top-Heavy Contribution.




(a) If the Plan is determined to be top-heavy for a Plan Year the Employer shall
contribute to the Plan for such Plan Year on behalf of each Participant who is not a Key
Employee and who has not terminated his employment as of the last day of such Plan Year an
amount equal to:




(1) The lesser of (i) 3% of such Participant’s Remuneration for such Plan Year,
or (ii) a percent of such Participant’s Remuneration for such Plan Year equal to the
greatest percent determined by dividing for each Key Employee the amounts allocated
to such Key Employee’s Before-Tax Account and Employer Contribution Account for such
Plan Year by such Key Employee’s Remuneration; reduced by




(2) The amount of Employer Matching Contributions and Employer Discretionary
Qualified Matching Contributions allocated to such Participant’s Accounts for such
Plan Year.




(b) The minimum contribution required to be made for a Plan Year pursuant to this
Section for a Participant employed on the last day of such Plan Year shall be made
regardless of whether such Participant is otherwise ineligible to receive an allocation of
the Employer’s contributions for such Plan Year. The minimum contribution required to be
made pursuant to this Section shall also be made for an Eligible Employee who is not a Key
Employee and who is excluded from participation in the Plan solely because of failing to
make Before-Tax Contributions.




(c) Notwithstanding the foregoing, no contribution shall be made pursuant to this
Section for a Plan Year with respect to a Participant who is a participant in another
defined contribution plan sponsored by the Employer or a Controlled Entity if such
Participant receives under such other defined contribution plan (for the plan year of such
plan ending with or within the Plan Year of the Plan) a contribution which is equal to or
greater than the minimum contribution required by Section 416(c)(2) of the Code.




 


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(d) Notwithstanding the foregoing, no contribution shall be made pursuant to this
Section for a Plan Year with respect to a Participant who is a participant in a defined
benefit plan sponsored by the Employer or a Controlled Entity if such Participant accrues
under such defined benefit plan (for the plan year of such plan ending with or within the
Plan Year of this Plan) a benefit that is at least equal to the benefit described in Section 416(c)(1) of the Code. If the preceding sentence is not applicable. the requirements of
this Paragraph shall be met by providing a minimum benefit under such defined benefit plan
which, when considered with the benefit provided under the Plan as an offset, is at least
equal to the benefit described in Section 416(c)(1) of the Code.



20.5 Termination of Top Heavy Status. If the Plan has been deemed to be top-heavy for
one or more Plan Years and thereafter ceases to be top-heavy, the provisions of this Article shall
cease to apply to the Plan effective as of the Determination Date on which it is determined no
longer to be top-heavy.



20.6 Effect of Article. Notwithstanding anything contained herein to the contrary, the
provisions of this Article shall automatically become inoperative and of no effect to the extent
not required by the Code or the Act.



EXECUTED this 18th day of December, 2008, effective January 1, 2009, or as
otherwise provided herein.



	 	 	 	 	 
	 	DYNEGY INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 


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Appendix A




PARTICIPATING EMPLOYERS




1. Dynegy Northeast Generation, Inc.


 


-1-









 





Appendix B




LOAN POLICY





B-1 Eligibility for Loan.




(a) Participant who meets the requirements of the following Clauses (A), (B) and (C):
(A) who is a party-in-interest, as that term is defined in Section 3(14) of the Act, (B) who
is no longer employed by the Employer, who is a beneficiary of a deceased participant, or
who is an alternate payee under a qualified domestic relations order, as that term is
defined in Section 414(p)(8) of the Code, and (C) who retains an Account balance under the
Plan (an individual who is eligible to apply for a loan under this Appendix B being
hereinafter referred to as a “Participant” for purposes of this Article). All loans shall be
subject to the requirements of this Appendix B and such other rules and guidelines, which
the Committee shall from time to time prescribe.




(b) No individual may have more than three (3) loans outstanding under the Plan at any
time, and no individual may have more than one loan outstanding under the Plan at any time
that is being used to acquire any dwelling unit which within a reasonable time is to be used
(determined at the time the loan is made) as a principal residence.




B-2 Maximum Loan.




(a) A loan to a Participant may not exceed fifty-percent (50%) of the then value of
such Participant’s vested interest in his Accounts.




(b) Paragraph (a) above to the contrary notwithstanding, no loan shall be made from the
Plan to the extent that such loan would cause the total of all loans made to a Participant
from all qualified plans of the Employer or a Controlled Entity, including loans deemed
distributed in accordance with Regulations promulgated under Section 72(p) of the Code, and
the interest accruing thereafter that has not been repaid (“Outstanding Loans”) to exceed
the lesser of:




(1) $50,000 (reduced by the excess, if any, of (i) the highest outstanding
balance of Outstanding Loans during the one-year period ending on the day before the
date on which the loan is to be made, over (i) the outstanding balance of
Outstanding Loans on the date on which the loan is to be made); or




(2) one-half the present value of the Participant’s nonforfeitable accrued
benefit under all qualified plans of the Employer or a Controlled Entity.



B-3 Minimum Requirements for Loans. A loan to a Participant must meet the following
requirements as well as other terms as the Committee may establish from time to time:




(a) Maximum Term. The repayment term of any loan may not exceed five (5) years
from the date the loan is made, unless the loan principal is used to acquire any dwelling
unit which within a reasonable time is to be used as a principal residence of a
Participant, in which case the maximum term shall be set forth in the loan guidelines
prescribed by the Committee.


 


-1-









 






(b) Notes. All loans shall be evidence by a collateral promissory note, in
paper or electronic form, containing such terms and conditions as the Committee shall
require.




(1) A loan to a Participant may not be for an amount less than $500.00.




(2) The actual and reasonable expenses incurred by the Plan (including
attorneys’ fees) in connection with the documentation of a loan, the recording of
security interests, the enforcement of the terms of the loan, and collection
activities associated with any default may be charged to the borrowing Participant’s
Accounts pursuant to uniform and nondiscriminatory policies established by the
Committee from time to time.



B-4 Accounting for Loans. Each loan shall be deemed to be made from the account or
accounts of the Participant to whom the loan is made. All payments with respect to the loan shall
be credited to the account or accounts of such Participant from which such loan is deemed to be
made.




B-5 Interest and Security.




(a) Any loan made pursuant to this Appendix B shall bear interest at a rate established
by the Committee from time to time and communicated to the Participants, which rate shall
provide the Plan with a return commensurate with the interest rates charged by persons in
the business of lending money for loans which would be made under similar circumstances.




(b) Any loan shall be made as an investment of a segregated loan fund to be established
in the Trust Fund for the Participant to whom the loan is made. The Trustee shall fund a
Participant’s segregated loan fund by liquidating such portion of the assets of the Accounts
from which the Participant’s loan is to be made as is necessary to fund the loan and
transferring the proceeds to such segregated loan fund. Notwithstanding the foregoing, in
the event that a loan from the Plan is deemed distributed to a Participant and has not been
repaid by the Participant, and the Participant applies for another loan from the Plan, then
the new loan shall satisfy such additional conditions as may required in accordance with
Section 72(p) of the Code and the Treasury Regulations promulgated thereunder. The loan
shall be secured by a pledge of the Participant’s segregated loan fund.




Notwithstanding any other provision of this Appendix B to the contrary, if the distribution
of a Participant’s Accounts is made in connection with the sale of the stock or the assets
of an Employer, the entire loan may be distributed solely as a Direct Rollover, in
accordance with Article X of the Plan, to a trust for a qualified plan maintained by the
purchaser, as determined under Section 401(a) of the Code, provided such trust will accept
the Participant’s loan as an investment. The Committee shall determine, in its
discretion, whether or not a Direct Rollover is in connection with an acquisition of the
stock or assets of an Employer.


 


-2-









 






B-6 Repayment Terms of Loan.




(a) A Participant who is an Employee receiving compensation at the time of receipt of a
loan shall be required, as a condition to receiving a loan, to enter into an irrevocable
agreement authorizing the Employer to make payroll deductions from his compensation so long
as the Participant is an Employee and to transfer such payroll deduction amounts to the
Trustee in payment of such loan plus interest. In the case of a Participant who (i) is not
at the time of commencement of his loan an Employee, or (ii) is not at the commencement of
his loan receiving compensation, or (iii) was an Employee receiving compensation at the time
of commencement of his loan but ceases to receive compensation or ceases to be an Employee,
such Participant shall make his loan repayments in the manner prescribed by the Committee.




(b) The terms of the loan shall (i) require level amortization with payments not less
frequently than quarterly, (ii) require that the loan be repaid within five (5) years unless
the Participant certifies in writing to the Committee that the loan is to be used to acquire
any dwelling unit which within a reasonable time is to be used (determined at the time the
loan is made) a principal residence of the Participant, in which case such loan shall be
repaid within ten (10) years, (iii) allow prepayment without penalty, provided that any
prepayment must be for the full Outstanding Loan balance (including interest), (iv) require
that the balance of the loan (including interest) shall become due and payable (to the
extent not otherwise due and payable) on the date the Participant or, if applicable, the
Participant’s beneficiary, becomes entitled to a distribution pursuant to the Plan
irrespective of whether such Participant or beneficiary elects or consents to such
distribution, and (v) provide that such Participant’s Outstanding Loan balance (including
interest), if not paid in accordance with the repayment provisions of the loan, shall be
repaid by offsetting such balance against the amount in the Participant’s segregated loan
fund pledged as security for the loan. By agreeing to the pledge of the segregated loan fund
as security for the loan, a Participant shall be deemed to have consented to the
distribution of such segregated loan fund prior to the time specified in Section 411(a)(11)
of the Code and applicable Treasury Regulations thereunder.


 


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(c) If the Participant fails in any way to comply with the repayment terms of a loan,
such loan shall be repaid by offsetting the Participant’s Outstanding Loan balance
(including interest) against the amount in the Participant’s segregated loan fund pledged as
security for the loan. Any such Outstanding Loan (including interest) shall be so offset and
repaid on the earlier of (i) the last day of the “Grace Period” (as hereinafter defined)
applicable with respect to such failure to comply, or (ii) the date of any withdrawal or
distribution of benefits from the pledged portion of the Participant’s Accounts pursuant to
the provisions of the Plan. Notwithstanding the foregoing, amounts in a Participant’s
Accounts may not be offset and used to satisfy the payment of such loan (including interest)
prior to the earliest time such amounts would otherwise be permitted to be distributed under
applicable law. For purposes of this Paragraph, the “Grace Period” with
respect to any failure to comply with the repayment terms of a loan shall be the period
beginning on the date of such failure and ending on the last day of the calendar quarter
following the calendar quarter in which such failure occurred.




(d) Amounts tendered to the Trustee by a Participant in repayment of a loan made
pursuant to this Appendix B (i) shall initially be credited to the Participant’s segregated
loan fund, (ii) then shall be transferred as soon as practicable following receipt thereof
to the Account or Accounts from which the Participant’s loan was made, and (iii) shall be
invested in accordance with the Participant’s current designation as to the investment of
contributions pursuant to Article V of the Plan.



B-7 Operation of Article. The provisions of this Appendix B shall be applicable to
loans granted or renewed on or after the Effective Date. Loans granted or renewed prior to the
Effective Date shall be governed by the provisions of the Plan as in effect prior to the Effective
Date.




 


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