Exhibit 10.1


 


BEST BUY

RETIREMENT SAVINGS PLAN


 


2003 AMENDMENT AND RESTATEMENT


 

















 


TABLE OF CONTENTS


 


	
   

  	
  Page No.

  
	
   

  	
   

  
	
  ARTICLE I PURPOSE

  	
  2

  
	
   

  	
   

  
	
   

  	
  §
  1.1

  	
  EXCLUSIVE BENEFIT

  	
  2

  
	
   

  	
  §
  1.2

  	
  NO RIGHTS OF EMPLOYMENT
  GRANTED

  	
  2

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II DEFINITIONS

  	
  2

  
	
   

  	
   

  
	
   

  	
  § 2.1

  	
  Accrued Benefit

  	
  2

  
	
   

  	
  § 2.2

  	
  Actual Deferral Percentage

  	
  2

  
	
   

  	
  §
  2.3

  	
  Administrative
  Delegate

  	
  3

  
	
   

  	
  § 2.4

  	
  Affiliated
  Employer

  	
  3

  
	
   

  	
  § 2.5

  	
  Average Actual
  Deferral Percentage

  	
  3

  
	
   

  	
  § 2.5A

  	
  Average Actual
  Contribution Percentage

  	
  3

  
	
   

  	
  § 2.6

  	
  Beneficiary

  	
  4

  
	
   

  	
  § 2.7

  	
  Cash–Out

  	
  4

  
	
   

  	
  § 2.8

  	
  Compensation

  	
  4

  
	
   

  	
  § 2.8A

  	
  Actual Contribution
  Percentage

  	
  5

  
	
   

  	
  § 2.8B

  	
  Early
  Retirement Age

  	
  6

  
	
   

  	
  § 2.9

  	
  Elective
  Deferrals

  	
  6

  
	
   

  	
  § 2.9A

  	
  Elective Deferrals Account

  	
  6

  
	
   

  	
  § 2.10

  	
  Eligible
  Employee

  	
  6

  
	
   

  	
  § 2.11

  	
  Employee

  	
  6

  
	
   

  	
  § 2.12

  	
  Employer and Plan Sponsor

  	
  7

  
	
   

  	
  § 2.13

  	
  ERISA

  	
  8

  
	
   

  	
  § 2.14

  	
  Excess Aggregate
  Contributions

  	
  8

  
	
   

  	
  §
  2.15

  	
  Excess
  Contributions

  	
  8

  
	
   

  	
  §
  2.16

  	
  Excess
  Deferral Amount

  	
  8

  
	
   

  	
  § 2.17

  	
  Forfeiture

  	
  8

  
	
   

  	
  § 2.18

  	
  Highly Compensated
  Employee

  	
  8

  
	
   

  	
  § 2.19

  	
  Hour of Service

  	
  9

  
	
   

  	
  §
  2.20

  	
  In—Service
  Distribution

  	
  10

  
	
   

  	
  § 2.21

  	
  IRC

  	
  10

  
	
   

  	
  § 2.22

  	
  Leave of Absence

  	
  11

  
	
   

  	
  §
  2.23A

  	
  Matching
  Contributions

  	
  11

  
	
   

  	
  § 2.23B

  	
  Matching Contributions
  Account

  	
  11

  
	
   

  	
  § 2.23C

  	
  Nonhighly Compensated
  Employee

  	
  11

  
	
   

  	
  §
  2.24

  	
  Normal
  Retirement Age

  	
  11

  
	
   

  	
  §
  2.25

  	
  One
  Year Break in Service

  	
  11

  
	
   

  	
  § 2.26

  	
  Participant

  	
  12

  
	
   

  	
  § 2.27

  	
  Participant Deferral
  Account

  	
  12

  
	
   

  	
  § 2.27A

  	
  Pooled Investment Account

  	
  12

  
	
   

  	
  § 2.28

  	
  Plan

  	
  12

  
	
   

  	
  § 2.29

  	
  Plan
  Administrator

  	
  12

  
	
   

  	
  § 2.30

  	
  Plan Year

  	
  13

  



 


i

















 


	
   

  	
  § 2.30A

  	
  Qualified
  Nonelective Contributions

  	
  13

  
	
   

  	
  § 2.30B

  	
  Qualified
  Nonelective Contributions Account

  	
  13

  
	
   

  	
  § 2.31

  	
  Retirement

  	
  13

  
	
   

  	
  § 2.31A

  	
  Rollover
  Account

  	
  13

  
	
   

  	
  § 2.31B

  	
  Rollover
  Contribution

  	
  13

  
	
   

  	
  § 2.32

  	
  Termination
  Date

  	
  14

  
	
   

  	
  § 2.33

  	
  Total and Permanent
  Disability

  	
  14

  
	
   

  	
  § 2.34

  	
  Total Service for Vesting

  	
  14

  
	
   

  	
  § 2.35

  	
  Trust

  	
  14

  
	
   

  	
  § 2.36

  	
  Trust Fund

  	
  14

  
	
   

  	
  § 2.37

  	
  Year of Service for
  Participation

  	
  15

  
	
   

  	
  § 2.38

  	
  Year of Service for
  Vesting

  	
  15

  
	
  ARTICLE III
  ELIGIBILITY TO PARTICIPATE

  	
  15

  
	
   

  	
  § 3.1

  	
  Initial Entry

  	
  15

  
	
   

  	
  § 3.2

  	
  Resumption of Participation

  	
  16

  
	
  ARTICLE IV
  CONTRIBUTIONS TO THE TRUST

  	
  16

  
	
   

  	
  § 4.1

  	
  Elective Deferrals
  by Participants

  	
  16

  
	
   

  	
  § 4.1A

  	
  Matching Contributions

  	
  16

  
	
   

  	
  § 4.1B

  	
  Qualified
  Nonelective Contributions

  	
  17

  
	
   

  	
  § 4.1C

  	
  Additional
  Elective Deferral Contributions

  	
  17

  
	
   

  	
  § 4.2A

  	
  Annual
  Limitation on Participant Elective Deferrals

  	
  17

  
	
   

  	
  § 4.2B

  	
  Average
  Actual Deferral Percentage Limitation

  	
  19

  
	
   

  	
  § 4.2C

  	
  Average
  Actual Contribution Percentage Limitation

  	
  23

  
	
   

  	
  § 4.3

  	
  Permissible
  Types of Employer Contributions

  	
  27

  
	
   

  	
  § 4.4

  	
  Loans
  to Participants

  	
  27

  
	
   

  	
  § 4.5

  	
  Rollover
  Contributions

  	
  28

  
	
  ARTICLE V
  ADMINISTRATION OF ACCOUNTS

  	
  28

  
	
   

  	
  § 5.1

  	
  Investments

  	
  28

  
	
   

  	
  § 5.2

  	
  Invest in
  Single Fund and Reasonable Rules

  	
  28

  
	
   

  	
  § 5.3

  	
  Valuation
  of Assets and Allocation of Changes

  	
  29

  
	
   

  	
  § 5.4

  	
  Limitations
  on Allocations to Each Participant

  	
  29

  
	
   

  	
  § 5.5

  	
  Designation of Beneficiary

  	
  36

  
	
   

  	
  § 5.6

  	
  Use of
  Electronic or Telephonic Communications

  	
  38

  
	
  ARTICLE VI
  VESTING

  	
  38

  
	
   

  	
  § 6.1

  	
  Certain Accounts
  100 Percent Vested

  	
  38

  
	
   

  	
  § 6.2

  	
  Matching
  Account Vesting on Death, Retirement, or Total and Permanent Disability

  	
  39

  
	
   

  	
  § 6.3

  	
  Matching
  Contributions Account Vesting on Termination

  	
  39

  
	
   

  	
  § 6.4

  	
  Restoration of Forfeitures

  	
  39

  
	
  ARTICLE VII DISTRIBUTION
  OF BENEFITS

  	
  40

  
	
   

  	
  § 7.1

  	
  Hardship
  Distribution

  	
  40

  
	
   

  	
  § 7.2

  	
  Method of
  Distribution of Accounts

  	
  41

  



 


ii

















 


	
   

  	
  § 7.3

  	
  Time
  of Distribution

  	
  42

  
	
   

  	
  § 7.4

  	
  Non-segregation
  if Installment Distribution

  	
  46

  
	
   

  	
  § 7.5

  	
  Distribution
  After Death of Participant

  	
  46

  
	
   

  	
  § 7.6

  	
  Distribution
  After Death of Beneficiary

  	
  47

  
	
   

  	
  § 7.7

  	
  [Reserved]

  	
  47

  
	
   

  	
  § 7.8

  	
  Suspense
  Account for Terminated Participants

  	
  47

  
	
   

  	
  § 7.9

  	
  Unable to
  Locate Participant or Beneficiary

  	
  48

  
	
   

  	
  § 7.10

  	
  Repayment
  of Cash—Out

  	
  48

  
	
   

  	
  § 7.11

  	
  Qualified Domestic
  Relations Orders

  	
  49

  
	
   

  	
  § 7.12

  	
  Direct Rollover

  	
  49

  
	
   

  	
  § 7.13

  	
  Participant
  or Beneficiary Incapacitated

  	
  50

  
	
  ARTICLE
  VIII DUTIES AND AUTHORITY OF PLAN ADMINISTRATOR

  	
  51

  
	
   

  	
  § 8.1

  	
  Appointment

  	
  51

  
	
   

  	
  § 8.2

  	
  No
  Discrimination

  	
  51

  
	
   

  	
  § 8.3

  	
  Payment of Funds To Trustee

  	
  51

  
	
   

  	
  § 8.4

  	
  Powers

  	
  51

  
	
   

  	
  § 8.5

  	
  Delegation
  of Duties

  	
  52

  
	
   

  	
  § 8.6

  	
  Establishing
  Unit Values For Investment Funds

  	
  52

  
	
   

  	
  § 8.7

  	
  Filing Reports

  	
  52

  
	
   

  	
  § 8.8

  	
  Records
  and Information

  	
  52

  
	
   

  	
  § 8.9

  	
  Information to
  Participants

  	
  52

  
	
   

  	
  § 8.10

  	
  Payment of
  Administrative Expenses

  	
  52

  
	
   

  	
  § 8.11

  	
  Review of Participant’s
  Claims

  	
  53

  
	
  ARTICLE IX
  MODIFICATIONS FOR TOP–HEAVY PLANS

  	
  53

  
	
   

  	
  § 9.1

  	
  Application
  of Article

  	
  53

  
	
   

  	
  § 9.2

  	
  Definitions

  	
  53

  
	
   

  	
  § 9.3

  	
  Accelerated
  Vesting

  	
  55

  
	
   

  	
  § 9.4

  	
  Minimum
  Contributions

  	
  55

  
	
   

  	
  § 9.5

  	
  Limitation
  on Compensation Taken into Account Under Plan

  	
  56

  
	
   

  	
  § 9.6

  	
  Modification
  of Defined Benefit and Defined Contribution Fraction

  	
  56

  
	
  ARTICLE X AMENDMENT
  AND TERMINATION

  	
  57

  
	
   

  	
  § 10.1

  	
  Rights to Suspend
  or Terminate Plan

  	
  57

  
	
   

  	
  § 10.2

  	
  Successor
  Corporation

  	
  57

  
	
   

  	
  § 10.3

  	
  Amendment

  	
  57

  
	
   

  	
  § 10.4

  	
  100%
  Vesting on Termination of Plan

  	
  58

  
	
   

  	
  § 10.5

  	
  Plan Merger or
  Consolidation

  	
  58

  
	
   

  	
  § 10.6

  	
  Adoption
  by Affiliates

  	
  58

  
	
  ARTICLE
  XI MISCELLANEOUS

  	
  59

  
	
   

  	
  § 11.1

  	
  Laws of Minnesota to Apply

  	
  59

  
	
   

  	
  § 11.2

  	
  Credit for
  Qualified Military Service

  	
  59

  
	
   

  	
  § 11.3

  	
  Participant
  Cannot Transfer or Assign Benefits

  	
  59

  
	
   

  	
  § 11.4

  	
  Right to Perform
  Alternative Acts

  	
  59

  
	
   

  	
  § 11.5

  	
  Reversion
  of Contributions Under Certain Circumstances

  	
  59

  



 


iii

















 


	
   

  	
  § 11.6

  	
  Plan
  Administrator Agent for Service of Process

  	
  60

  
	
   

  	
  § 11.7

  	
  Filing Tax Returns and
  Reports

  	
  60

  
	
   

  	
  § 11.8

  	
  Indemnification

  	
  60

  
	
   

  	
  § 11.9

  	
  Number and
  Gender

  	
  60

  



 


iv

















 


BEST BUY

RETIREMENT SAVINGS PLAN


 


2003 AMENDMENT AND RESTATEMENT


 


INTRODUCTION


 


Best Buy Co.,
Inc., a Minnesota corporation having its principal place of business at
Richfield, Minnesota, and herein called “Plan Sponsor,” hereby amends and
restates in this document its existing 401(k) profit sharing plan and related
trust, which was first adopted, effective October 1, 1990, was most recently amended
and restated on February 27, 2002, in an instrument entitled “Best Buy Co.,
Inc. Retirement Savings Plan,” and has been amended by a First Amendment dated
September 27, 2002 (collectively, the “Plan”). 
As herein amended and restated, the Plan is now called the “Best Buy
Retirement Savings Plan.”


 


When the Plan
Sponsor amended and restated the Plan on February 27, 2002, it intended to (a)
make changes required by the Uniformed Service Employment and Reemployment
Rights Act (USERRA), the Uruguay Round Agreements Act of ‘94 (GATT), the Small
Business Job Protection Act of 1996 (SBJPA ‘96), the Taxpayer Relief Act of
1997 (TRA ‘97), Internal Revenue Service Restructuring and Reform Act of 1998,
the Community Renewal Tax Relief Act of 2000 and other applicable laws,
regulations and administrative authority in effect through December 31, 2001
(collectively known as “GUST”); (b) to make certain changes required by the
Economic Growth Tax Relief Reconciliation Act of 2001 (“EGTRRA”), but not
certain optional changes permitted under EGTRRA; and (c) to make certain other
changes in the terms of the Plan.  The
First Amendment dated September 27, 2002, was intended to (a) increase certain
limitations on Participant savings deferrals as of October 1, 2002, as permitted
by EGTRRA; (b) make other desirable amendments required or permitted by EGTRRA,
but not included in the amended and restated Plan document dated February 27,
2002; and (c) to adopt an Internal Revenue Service Model Amendment changing the
Plan’s distribution rules in accordance with Treasury Regulations issued after
February 2002.


 


The amended and
restated Plan document dated February 27, 2002, and its First Amendment dated
September 27, 2002, were submitted to the Internal Revenue Service in 2002 for
a favorable determination letter.  Upon
review of those documents, the Internal Revenue Service requested further
amendments to comply with the GUST requirement described above; and the Plan
Sponsor intends to make those changes and incorporate into this Plan document
the First Amendment to the Plan dated September 27, 2002.


 


As of December 31,
2001, the Musicland Group’s Capital Accumulation Plan, in which eligible
employees of Musicland Stores Corporation and its subsidiaries participated,
was merged into the Plan pursuant to a written agreement between them and the
Plan Sponsor; and Musicland Stores Corporation and its subsidiaries adopted
this Plan as participating Affiliated Employers, with the consent of the Plan
Sponsor.  This Plan document and the Plan
document dated February 27, 2002, are intended to retroactively amend the
Musicland Group’s Capital Accumulation Plan, 
to the extent necessary to comply with GUST for applicable periods
ending on or before December 31, 2001, when that plan was merged into this
Plan.


 


1

















 


Section 10.3 of
the Plan provides for its amendment by the Plan Sponsor in the manner and upon
the terms and conditions stated therein. 
Therefore, effective January 1, 2002, except as otherwise stated in this
Plan document, the Plan Sponsor hereby amends and restates its existing 401(k)
profit-sharing plan as follows:


 


ARTICLE I

PURPOSE


 


§ 1.1       Exclusive
Benefit


 


This Plan has been
executed for the exclusive benefit of the Participants hereunder and their
Beneficiaries.  This Plan shall be
interpreted in a manner consistent with this intent; and with the intention of
the Employer that this Plan satisfy sections 401 and 501 of the IRC.  Under no circumstances shall the Trust Fund
ever revert to or be used or enjoyed by the Employer, except as provided in
Section 12.5.


 


§ 1.2       No Rights of Employment Granted


 


The establishment
of this Plan shall not be considered as giving any employee the right to be
retained in the service of the Employer or any Affiliated Employer not
participating in this Plan.


 


ARTICLE II

DEFINITIONS


 


§ 2.1       Accrued
Benefit


 


The “Accrued
Benefit” of a Participant is the amount credited to the Elective Deferrals
Account, Matching Contributions Account, Qualified Matching Contributions
Account, Qualified Nonelective Contributions Account and Rollover Account
(collectively “the Accounts”) of the Participant, as applicable.


 


§ 2.2       Actual Deferral Percentage


 


The “Actual
Deferral Percentage” of each Highly Compensated Employee who is a Participant
is the ratio, expressed as a percentage, of (1) the amount of Elective
Deferrals actually paid over to the Trust on behalf of such Participant for the
current Plan Year to (2) the Participant’s Compensation for such Plan Year
(whether or not the Employee was a Participant for the entire Plan Year).  The Actual Deferral Percentage of each
Nonhighly Compensated Employee (as of the current Plan Year) who is a
Participant is the ratio, expressed as a percentage, of (1) the amount of
Elective Deferrals actually paid over to the Trust on behalf of such
Participant for the current Plan Year to (2) the Participant’s Compensation for
such current Plan Year (whether or not the Employee was a Participant for the
entire Plan Year).  Employer
contributions on behalf of any Participant shall include: (1) any Elective
Deferrals made pursuant to the Participant’s deferral election (including
Excess Deferral Amounts of Highly Compensated Employees), but excluding (a)
Excess Deferral Amounts of Nonhighly Compensated Employees that arise solely
from Elective Deferrals made under the Plan or plans


 


2

















 


of this Employer and (b) Elective Deferrals that are taken into account
in the Average Actual Contribution Percentage test (provided the Average Actual
Deferral Percentage test is satisfied both with and without exclusion of these
Elective Deferrals); (2) at the election of the Plan Sponsor, Qualified
Nonelective Contributions; and (3) Forfeitures allocated to the Participant’s
Accounts for the Plan Year (if any).


 


For purposes of
computing the Actual Deferral Percentage, an Employee who would be a
Participant but for the failure to make Elective Deferrals shall be treated as
a Participant on whose behalf no Elective Deferrals are made.  The Actual Deferral Percentage of each
Eligible Employee shall be rounded to the nearest 100th of 1% of such
Employee’s Compensation.


 


A Participant is a
Highly Compensated Employee for a particular Plan Year if he or she meets the
definition of a Highly Compensated Employee in effect for that Plan Year.  Similarly, a participant is a Nonhighly
Compensated Employee for a particular Plan Year if he or she does not meet the
definition of a Highly Compensated Employee in effect for that Plan Year.


 


§ 2.3       Administrative
Delegate


 


The
“Administrative Delegate” shall refer to one or more persons or institutions to
which the Plan Administrator has delegated certain administrative functions
pursuant to a written agreement between such person or institution and the Plan
Sponsor (or an Affiliated Employer participating in the Plan and designated by
the Plan Sponsor).


 


§ 2.4       Affiliated Employer


 


“Affiliated
Employer” shall mean the Plan Sponsor or any corporation that is a member of a
controlled group of corporations (as defined in IRC section 414(b)) that
includes the Plan Sponsor; any trade or business (whether or not incorporated)
that is under common control (as defined in IRC section 414(c)) with the Plan
Sponsor; any organization (whether or not incorporated) which is a member of an
affiliated service group (as defined in IRC section 414(m)) that includes the
Plan Sponsor; and any other entity required to be aggregated with the Plan
Sponsor pursuant to regulations under IRC section 414(o).


 


§ 2.5       Average Actual Deferral Percentage


 


“Average Actual
Deferral Percentage” shall mean, for a specified group of Eligible Employees
for a Plan Year, the average of the Actual Deferral Percentages (as defined in
Section 2.8A, calculated separately for each Participant in such group).  The Average Actual Deferral Percentage of
the Eligible Employees shall be rounded to the nearest 100th of 1%.


 


§ 2.5A    Average
Actual Contribution Percentage


 


“Average Actual
Contribution Percentage” shall mean, for a specified group of Eligible
Employees for a Plan Year, the average of the Actual Contribution Percentages
(calculated separately for each Participant in such group).  The Average Actual Contribution Percentage
of the Eligible Employees shall be rounded to the nearest 100th of 1%.


 


3

















 


§ 2.6       Beneficiary


 


A “Beneficiary” is
any person, estate or trust who by operation of law, or under the terms of the
Plan, or otherwise, is entitled to receive any Accrued Benefit of a Participant
under the Plan.  A “designated
Beneficiary” is any individual designated or determined in accordance with
Section 5.5, except that it shall not include any person who becomes a
Beneficiary by virtue of the laws of inheritance or intestate succession.


 


Effective as of
the date this 2003 Amendment and Restatement is adopted, and thereafter, a “Beneficiary” is a person designated under
Section 5.5 who is or may become entitled to a benefit under the Plan.  A Beneficiary who becomes entitled to a
benefit under the Plan remains a Beneficiary under the Plan until the Trustee
has fully distributed the Beneficiary’s benefit to him or her.  A Beneficiary’s right to (and the Plan
Administrator’s or Trustee’s duty to provide to the Beneficiary) information or
data concerning the Plan does not arise until he or she first becomes entitled
to receive a benefit under the Plan.


 


§ 2.7       Cash–Out


 


A “Cash–Out” may
be involuntary or voluntary.


 


An involuntary
Cash–Out is a distribution of Accrued Benefit to a former Participant which
meets the following requirements: (i) the former Participant’s entire
non-forfeitable Accrued Benefit is distributed to him or her; (ii) the present
value of the non-forfeitable Accrued Benefit of the Participant does not exceed
$5,000 on the date the distribution commences; and (iii) the distribution is
made on account of the Employee’s termination of participation in the Plan and
no later than the end of the first Plan Year following such termination.  Such $5,000 threshold amount became effective
under this Plan for distributions made on or after September 1, 1999; and
prior to that date, a $3,500 threshold amount was applied in lieu of such
$5,000 threshold amount.  For
distributions made before January 1, 2000, 
the applicable threshold amount could not be exceeded either at the time
of distribution or at the time of any prior distribution to the same
Participant.  Effective as of October 1,
2002, for purposes of an involuntary Cash-Out, the value of a former
Participant’s non-forfeitable Accrued Benefit shall be determined without
regard to that portion of the Accrued Benefit that is attributable to rollover
contributions (and earnings allocable thereto) within the meaning of IRC
sections 402(c), 403(a)(4), 403(b)(8), 408(d)(3)(A)(ii), and 457(e)(16).


 


A voluntary
Cash–Out is a distribution of Accrued Benefits to a former Participant which
meets the following requirements: (i) the former Participant has voluntarily
elected to receive the distribution; and (ii) the distribution is made on account
of the Employee’s termination of participation in the Plan and no later than
the end of the second Plan Year following such termination.


 


§ 2.8       Compensation


 


“Compensation”
means, except as otherwise specifically provided in this Section 2.8 or elsewhere
in this Plan, Compensation as that term is defined in Section 5.4(d)(ii) of the
Plan, which for Plan Years beginning after December 31, 1997, includes Elective
Contributions (as


 


4

















 


defined in that Section); provided, however, that Compensation shall be
reduced by all of the following items (even if includible in gross income):
reimbursements or other expense allowances, fringe benefits (cash and
non-cash), moving expenses, deferred compensation and welfare benefits, except
to the extent such items are included in Elective Deferrals made by the
Employer on behalf of a Participant.


 


Compensation shall
include only that Compensation which is actually paid to the Participant (or on
his or her behalf as Elective Deferrals) during the determination period.  For purposes of this Section, the
determination period shall mean the Plan Year.


 


If the
Compensation for any prior determination period is taken into account in
determining an Employee’s allocations or benefits for the current determination
period, the Compensation for such prior year is subject to the applicable
annual Compensation limit in effect for that prior year.


 


In addition to
other applicable limitations set forth in the Plan, and notwithstanding any
other provision of the Plan to the contrary, for Plan Years beginning on or
after January 1, 2002, the annual Compensation of each Employee taken into
account under the Plan shall not exceed $200,000, as adjusted for increases in
the cost of living in accordance with IRC section 401(a)(17)(B).  The cost-of-living adjustment in effect for
a calendar year applies to any period, not exceeding 12 months, over which
Compensation is determined (a “determination period”) beginning in such
calendar year.


 


If Compensation
for any prior determination period is taken into account in determining an
Employee’s benefits accruing in the current Plan Year, the Compensation for
that prior determination period is subject to the Omnibus Budget Reconciliation
Act of 1993 annual compensation limit in effect for that prior determination
period.  For this purpose, for
determination periods beginning before the first day of the first Plan Year
beginning on or after January 1, 1994, the annual compensation limit of such
Act was $150,000.


 


If the period for
determining Compensation used in calculating an Employee’s allocation for a
determination period is a short Plan Year (i.e., shorter than 12 months), the
annual Compensation limit is an amount equal to the otherwise applicable annual
Compensation limit multiplied by the fraction, the numerator of which is the
number of months in the short Plan Year, and the denominator of which is 12.


 


§ 2.8A    Actual
Contribution Percentage


 


“Actual
Contribution Percentage”, for a Highly Compensated Employee, is the ratio,
expressed as a percentage, of  Matching
Contributions, and, at the election of the Plan Sponsor, Qualified Nonelective
Contributions on behalf of an Eligible Employee for the Plan Year to the
Eligible Employee’s Compensation for the Plan Year.  “Actual Contribution Percentage”, for a Non—Highly Compensated
Employee, is the ratio, expressed as a percentage, of  Matching Contributions, and, at the election of the Plan Sponsor,
Qualified Nonelective Contributions on behalf of an Eligible Employee for the
prior Plan Year to the Eligible Employee’s Compensation for the prior Plan
Year.  However, Matching Contributions
shall not be taken into account to the extent they are forfeited either to
correct Excess Aggregate Contributions or because the


 


5

















 


contributions to which they relate are Excess Deferral Amounts, Excess
Contributions, or Excess Aggregate Contributions.  The Actual Contribution Percentage of each Eligible Employee
shall be rounded to the nearest 100th of 1% of such Employee’s Compensation.


 


§ 2.8B    Early
Retirement Age


 


For Participants
who reach age 55 on or before June 1, 2000, “Early Retirement Age” shall be the
time at which the Participant attains 55 years of age.  For all other Participants, it shall be the
time at which the Participant attains 60 years of age.  A Participant shall become 100% vested in
his or her Matching Contribution Account upon attainment of Early Retirement
Age.


 


§ 2.9       Elective Deferrals


 


“Elective Deferrals”
shall mean any Employer contributions made to the Plan at the election of the
Participant, in lieu of cash compensation, and shall include contributions made
pursuant to a salary reduction agreement or other deferral mechanism.  With respect to any taxable year, a
Participant’s Elective Deferrals is the sum of all Employer contributions made
on behalf of such Participant pursuant to an election to defer under any
qualified cash or deferred arrangement as described in IRC section 401(k), any
simplified employee pension cash or deferred arrangement as described in IRC
section 402(h)(1)(B), any eligible deferred compensation plan under IRC section
457, any plan as described under IRC section 501(c)(18), and any Employer
contributions made on the behalf of a Participant for the purchase of an
annuity contract under IRC section 403(b) pursuant to a salary reduction
agreement.  Elective Deferrals shall not
include any deferrals properly distributed as excess annual additions.


 


§ 2.9A    Elective Deferrals Account


 


The “Elective
Deferrals Account” is the separate account maintained for each Participant to
which all Elective Deferrals shall be allocated.


 


§ 2.10     Eligible Employee


 


“Eligible
Employee” shall mean any Employee of the Employer who is otherwise authorized
under the terms of the Plan to have Elective Deferrals allocated to his or her
account for all or any portion of the Plan Year with respect to computing the
Average Actual Deferral Percentage.  An
Employee who would be eligible to make Elective Deferrals but for a suspension
due to a distribution, a loan, or an election not to participate in the Plan,
will not fail to be an Eligible Employee for purposes of Sections 4.2A and 4.2B
for a Plan Year merely because the Employee may not make an Elective Deferral
by reason of such suspension.  Further,
an Employee will not fail to be an Eligible Employee merely because the
Employee may receive no additional annual additions pursuant to Section 5.4.


 


§ 2.11     Employee


 


“Employee” shall
mean any employee of the Employer or of any other employer required to be
aggregated with such Employer under IRC sections 414(b), (c), (m) or (o).  An “Employee” is an individual who would be
an Employee but who is on a Leave of Absence. 
Members of the


 


6

















 


Board of Directors acting solely in that capacity and independent
contractors shall not be Employees.


 


The term Employee
shall also include any leased employee deemed to be an employee of any employer
described in the previous paragraph as provided in IRC sections 414(n) or (o).


 


For Plan Years
beginning on or after January 1, 1997, the term “leased employee” means any
person (other than an employee of the recipient) who, pursuant to an agreement
between the recipient and any other person (“leasing organization”), has
performed services for the recipient (or for the recipient and related persons
determined in accordance with IRC section 414(n)(6)) on a substantially
full-time basis for a period of at least one year, and such services are
performed under primary direction or control by the recipient.  Contributions or benefits provided a leased
employee by the leasing organization which are attributable to services
performed for the recipient employer shall be treated as provided by the recipient
employer.


 


A leased employee
shall not be considered an Employee of the recipient if: (i) such employee is
covered by a money purchase pension plan maintained by the leasing organization
providing: (1) a nonintegrated employer contribution rate of at least 10% of
compensation, as defined in IRC section 415(c)(3), but including amounts
contributed pursuant to a salary reduction agreement which are excludable from
the employee’s gross income under IRC section 125, section 402(e)(3), section
402(h), or section 403(b), (2) immediate participation, and (3) full and
immediate vesting; and (ii) leased employees do not constitute more than 20% of
the recipient’s nonhighly compensated workforce.


 


§ 2.12     Employer and
Plan Sponsor


 


This Section 2.12
is effective as of December 31, 2001, except as otherwise provided in this
Section 12.12.


 


“Employer” shall
mean, collectively, Best Buy Co., Inc., Musicland Stores Corporation and all of
the subsidiaries of Musicland Stores Corporation (including without limitation
The Musicland Group, Inc. and its subsidiaries); provided, however, that The
Musicland Group, Inc. and its subsidiaries ceased to be an Employer under this
Plan on June 16, 2003 (the Closing Date of Musicland Stores Corporation’s sale
of The Musicland Group, Inc. to Musicland Holding Corp. pursuant to a certain
Stock Purchase Agreement); and, subject to Section 10.6, shall also include any
other Affiliated Employer that has adopted the Plan with the consent of the
Plan Sponsor.


 


“Plan Sponsor”
shall mean Best Buy Co., Inc., which shall have all of the administrative and
fiduciary powers and responsibilities under this Plan, including without
limitation the power to appoint and remove other fiduciaries of the Plan, to
delegate its fiduciary responsibilities to any other persons, and to amend or
terminate the Plan, notwithstanding any other provisions of the Plan, except
that all participating employers included in the Employer shall continue to be
authorized to pay Plan expenses, make contributions to the Plan and revoke
their participation in the Plan. 
Pursuant to a resolution of the Plan Sponsor’s Board of Directors, it
has delegated certain of the Plan Sponsor’s administrative and fiduciary powers
and responsibilities under the


 


7

















 


Plan (other than the power to amend or terminate the Plan) to a Benefit
Plan Advisory Committee, and has appointed that committee as Plan Administrator
of this Plan.


 


§ 2.13     ERISA


 


“ERISA” refers to
the Employee Retirement Income Security Act of 1974, as amended.


 


§ 2.14     Excess Aggregate Contributions


 


“Excess Aggregate
Contributions” shall mean the amount described in Subsection 4.2C(e).


 


§ 2.15     Excess Contributions


 


“Excess
Contributions” shall mean the amount described in Subsection 4.2B(b).


 


§ 2.16     Excess Deferral Amount


 


“Excess Deferral
Amount” shall mean the amount described in Subsection 4.2A(c).


 


§ 2.17     Forfeiture


 


“Forfeiture”
refers to the amount of non-vested Accrued Benefits in a Participant’s Matching
Contributions Account which are reallocated to reduce Employer Contributions or
Matching Contributions or pay Plan expenses.


 


§ 2.18     Highly
Compensated Employee


 


A “Highly
Compensated Employee” means a highly compensated active employee and a highly
compensated former employee.


 


For this purpose
the applicable year of the Plan for which a determination is being made is
called a determination year and the preceding 12–month period is called a
look-back year.  The determination year
shall be the Plan Year.  The look-back
year shall be the 12–month period immediately preceding the determination year.


 


Effective for
years beginning after December 31, 1996, the term Highly Compensated Employee
means any Employee who: (1) was a 5–percent owner at any time during the Plan
Year or the preceding Plan Year, or (2) for the preceding Plan Year had
Compensation from the Employer in excess of $80,000 and was in the top-paid
group for the preceding Plan Year.  The
$80,000 amount is adjusted at the same time and in the same manner as under IRC
section 415(d), except that the base period is the calendar quarter ending
September 30, 1996.


 


The term “top-paid
group” includes all employees who are among the highest paid 20%, determined by
excluding the following employees (unless the Plan Sponsor elects to include
any of such groups): (i) employees who have not completed six months of
service; (ii) employees who normally work less than 17–1/2 hours per week;
(iii) employees who normally work not more than six months a year; (iv)
employees who are included in a unit of employees covered by


 


8

















 


a collective bargaining agreement, except as otherwise provided in the
regulations; (v) employees who have not attained the age of 21; and (vi)
employees who are nonresident aliens and receive no U.S.-source earned income
from the Employer.


 


For purposes of
this Section, “Compensation” means Compensation as that term is defined in
Section 5.4(d)(ii) of the Plan, which for Plan Years beginning after December
31, 1997, includes Elective Contributions (as defined in that Section).


 


A Highly
Compensated former employee is based on the rules applicable to determining
Highly Compensated employee status as in effect for that determination year, in
accordance with temporary Treasury Regulations section 1.414(q)–1T, A–4 and IRS
Notice 97–45.


 


A Highly
Compensated former employee includes any Employee who separated from service
(or was deemed to have separated) prior to the determination year, performs no
service for the Employer during the determination year, and was a highly
compensated active employee for either the separation year or any determination
year ending on or after the Employee’s 55th birthday.


 


§ 2.19     Hour of
Service


 


“Hour of
Service”  means:


 


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


 


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


 


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


 


Hours of Service
will be credited for employment with other members of an affiliated service
group (under IRC section 414(m)), a controlled group of corporations (under IRC
section 414(b)), or a group of trades or businesses under common control (under
IRC section 414(c)) of which the Plan Sponsor is a member, and any other entity
required to be aggregated with the Plan Sponsor pursuant to IRC section 414(o).


 


9

















 


Hours of Service
will also be credited for any individual considered an Employee for purposes of
this Plan under IRC section 414(n) or IRC section 414(o).


 


Solely for
purposes of determining whether a One Year Break in Service, as defined in
Section 2.25, for participation and vesting purposes has occurred in a
computation period, an individual who is absent from work for maternity or
paternity reasons shall receive credit for the Hours of Service in accordance
with the second paragraph of Section 2.25.


 


Service will be
determined on the basis of actual hours for which an Employee is paid or
entitled to payment.


 


Solely for the
purpose of computing vesting service on and after June 1, 2000, “Hour of
Service” shall mean each hour for which an Employee is paid or entitled to
payment for the performance of duties for the Employer and the rules below
shall apply.


 


For purposes of
determining an Employee’s nonforfeitable interest in the Participant’s Accrued
Benefit in the Matching Contributions Account, an Employee will receive credit
for the aggregate of all time period(s) commencing with the Employee’s first
day of employment or reemployment and ending on the date a One Year Break in Service
begins.  The first day of employment or
reemployment is the first day the Employee performs an Hour of Service.  Fractional periods of a year will be
expressed in terms of days.


 


In the case of an
individual who is absent from work for maternity or paternity reasons, as
further defined in Section 2.25, the 12–consecutive month period beginning on
the first anniversary of the first date of such absence shall not constitute a
One Year Break in Service.


 


If the Plan
Sponsor is a member of an affiliated service group (under IRC section 414(m)),
a controlled group of corporations (under IRC section 414(b)), a group of
trades or businesses under common control (under IRC section 414(c)) or any
other entity required to be aggregated with the Plan Sponsor pursuant to IRC
section 414(o), service will be credited for any employment for any period of
time for any other member of such group. 
Service will also be credited for any individual required under IRC
section 414(n) or 414(o) to be considered an Employee of any employer
aggregated under IRC section 414(b), (c) or (m).


 


§ 2.20     In–Service Distribution


 


An “In–Service
Distribution” is a distribution which is made to an active Employee who has
attained the age of 59 1/2.  The Participant must request a withdrawal in writing directed to
the Plan Administrator or by using electronic or telephonic procedures
established by the Plan Administrator. 
In-Service Distribution may only be made from the Participant’s Rollover
Account and Elective Deferral Account, in that order of priority.  A Participant may not request an In-Service
Distribution more frequently than 12 times per year.  A Participant may not receive an In-Service Distribution at the
same time a Participant requests a Plan Loan or any other withdrawal under the
Plan.


 


§ 2.21     IRC


 


“IRC” refers to
the Internal Revenue Code of 1986, as amended.


 


10

















 


§ 2.22     Leave of Absence


 


A “Leave of
Absence” shall refer to that period during which the Participant is absent with
or  without Compensation and for which
the Plan Administrator, in its sole discretion has determined him or her to be
on a “Leave of Absence” instead of having terminated his or her employment.  (However, such discretion of the Plan
Administrator shall be exercised in a nondiscriminatory manner.)  In all events, a Leave of Absence by reason
of service in the armed forces of the United States shall end no later than the
time at which a Participant’s reemployment rights as a member of the armed
forces cease to be protected by law. 
The date that the Leave of Absence ends shall be deemed the Termination
Date if the Participant does not resume employment with the Employer.  In determining a Year of Service for Accrual
of Benefits, all such Leaves of Absence shall be considered to be periods when
the Employee is a Participant.


 


§ 2.23A      Matching Contributions


 


“Matching
Contributions” are contributions by the Employer for Participants who have made
Elective Deferrals for the Plan Year, as further described in Section 4.1A.


 


§ 2.23B      Matching Contributions Account


 


The “Matching
Contributions Account” is the separate account maintained for each Participant
to which all Matching Contributions shall be allocated.


 


§ 2.23C      Nonhighly Compensated Employee


 


A “Nonhighly Compensated
Employee” shall mean an Employee of the Employer who is neither a Highly
Compensated Employee nor a Family Member.


 


§ 2.24     Normal Retirement Age


 


The “Normal
Retirement Age” shall be the time at which the Participant attains 65.


 


§ 2.25     One Year Break in Service


 


A “One Year Break
in Service” means a Plan Year in which the Participant has not completed at
least 500 Hours of Service.  For the
short Plan Year ending December 31, 2000, 250 Hours of Service shall be
substituted for 500 Hours of Service.


 


Solely for
purposes of determining whether a One Year Break in Service, as defined in this
Section 2.25, has occurred in a computation period, an individual who is absent
from work for maternity or paternity reasons shall receive credit for the Hours
of Service which would otherwise have been credited to such individual but for
such absence, or in any case in which such hours cannot be determined, 8 Hours
of Service per day of such absence.  For
purposes of this paragraph, an absence from work for maternity or paternity
reasons means an absence (1) by reason of the pregnancy of the individual, (2)
by reason of a birth of a child of the individual, (3) by reason of the
placement of a child with the individual in connection with the adoption of
such child by such individual, or (4) for purposes of caring for such child for
a period beginning immediately following such birth or placement.  The Hours of Service credited under this


 


11

















 


paragraph shall be credited (1) in the computation period in which the
absence begins if the crediting is necessary to prevent a One Year Break in
Service in that period, or (2) in all other cases, in the following computation
period.


 


Solely for
purposes of computing a Year of Service for Vesting on and after June 1, 2000,
a “One Year Break in Service” is a period of severance of at least
12–consecutive months.  A period of
severance is a continuous period of time during which the Employee is not
employed by the Employer.  Such period
begins on the date the Employee retires, dies, quits or is discharged, or if
earlier, the 12–month anniversary of the date on which the Employee was
otherwise first absent from service.


 


In the case of an
individual who is absent from work for maternity or paternity reasons, the
12–consecutive month period beginning on the first anniversary of the first
date of such absence shall not constitute a One Year Break in Service.  For purposes of this paragraph, an absence
from work for maternity or paternity reasons means an absence (1) by reason of
the pregnancy of the individual, (2) by reason of the birth of a child of the
individual, (3) by reason of the placement of a child with the individual in
connection with the adoption of such child by such individual, or (4) for
purposes of caring for such child for a period beginning immediately following
such birth or placement.


 


§ 2.26     Participant


 


A “Participant”
shall refer to every Employee or former Employee who has met the applicable
participation requirements of Article III.


 


§ 2.27     Participant Deferral Account


 


The “Participant
Deferral Account” is the separate account, if applicable, maintained for each
Participant to which Elective Deferrals are allocated.  If applicable there shall be a post–1986
Participant Deferral Account as described in Section 7.1.


 


§ 2.27A      Pooled Investment Account


 


An account
established pursuant to an administrative services agreement between the Plan
Sponsor (or its delegate) and the Trustee.


 


§ 2.28     Plan


 


“Plan” refers to
this revised and restated Best Buy Retirement Savings Plan.


 


§ 2.29     Plan Administrator


 


This Section 2.29
is effective as of December 31, 2001, except as otherwise stated in this
Section 2.29.


 


“Plan
Administrator” shall mean the Plan Sponsor, unless a different person is
designated Plan Administrator in a resolution adopted by the board of directors
of the Plan Sponsor, and such person accepts the designation in writing.  As of the date this Plan document has been


 


12

















 


executed, the Plan Administrator is the Benefit Plan Advisory Committee
appointed by the Plan Sponsor.


 


The Plan
Administrator may delegate to the Administrative Delegate any of the Plan
Administrator’s duties under the Plan, except the receipt of service of
process; provided that such delegation shall not relieve the Plan Administrator
of the responsibility for the performance of such duties, unless the delegation
is specifically permitted in another Section of this Plan with respect to the
duty.


 


§ 2.30     Plan
Year


 


Prior to June 1,
2000, a “Plan Year” was the period from the first day of June to the last day
of May, annually.  Then, there was a
short Plan Year beginning June 1, 2000, ended December 31, 2000.  Thereafter, the Plan Year shall be from January
1, to December 31, annually.


 


§ 2.30A      Qualified Nonelective Contributions


 


“Qualified
Nonelective Contributions” are contributions (other than Elective Deferrals,
Matching Contributions, or Qualified Matching Contributions) made by the
Employer and allocated to Participants’ Accounts that are nonforfeitable when
made; and that are allocable in accordance with Section 4.2B(g) and
distributable only in accordance with the distribution provisions that are
applicable to Elective Deferrals.


 


§ 2.30B      Qualified Nonelective Contributions
Account


 


The “Qualified
Nonelective Contributions Account” is the separate account maintained for each
Participant to which all Qualified Nonelective Contributions shall be
allocated.


 


§ 2.31     Retirement


 


“Retirement”
refers to the termination of employment of a Participant who has attained at
least the Normal Retirement Age.  The
Participant may work beyond Normal Retirement Age, in which case, the
participant may continue to make Elective Deferrals and receive Matching Contributions,
if any, under the Plan.


 


§ 2.31A      Rollover Account


 


The “Rollover
Account” is a separate account maintained for any Participant to which all
Rollover Contributions, if any, shall be allocated.


 


§ 2.31B      Rollover Contribution


 


For purposes of
this Plan, “Rollover Contribution” means:


 


(a)           a
direct rollover of an eligible rollover distribution from (i) a qualified plan
described in Section 401(a) or 403(a) of the Code, excluding after-tax employee
contributions; (ii) an annuity contract described in Section 403(b) of the
Code, excluding after-tax employee


 


13

















 


contributions; and (iii) an eligible plan
under Section 457(b) of the Code which is maintained by a state, political
subdivision of a state, or any agency or instrumentality of a state or
political subdivision of a state;


 


(b)           a
participant contribution of an eligible rollover distribution from a qualified
plan described in Section 401(a) or 403(a) of the Code; an annuity contract
described in Section 403(b) of the Code; and an eligible plan under Section
457(b) of the Code which is maintained by a state, political subdivision of a
state, or any agency or instrumentality of a state or political subdivision of
a state;


 


(c)           amounts
transferred to this Plan from a conduit individual retirement account, provided
that such account has no assets other than assets which were previously
distributed to the Employee by another qualified plan; and further provided
that such amounts met the applicable requirements of IRC section 408(d)(3) for
rollover treatment on transfer to the conduit individual retirement account;
and


 


(d)           amounts
distributed to an Employee from a conduit individual retirement account meeting
the requirements of Subsection (c) above which are transferred by the Employee
to this Plan within sixty (60) days of his or her receipt from such account.


 


§ 2.32     Termination Date


 


The “Termination
Date” shall be the date on which the earliest of the following events occurs:
(a) a Participant’s retirement, (b) a Participant’s termination of employment
as a result of Total and Permanent Disability, (c) a Participant’s death, or
(d) a Participant’s termination of employment for any other reason.


 


§ 2.33     Total and Permanent Disability


 


“Total and
Permanent Disability” means a  physical
or mental condition of a Participant resulting from bodily injury, disease, or
mental disorder which renders him or her incapable of continuing any gainful
occupation and which condition constitutes total disability as determined by
the Social Security Administration under the Federal Social Security Act.


 


§ 2.34     Total Service for Vesting


 


“Total Service for
Vesting” shall mean the sum of each separate Year of Service for Vesting
credited to the Participant.  A break in
service shall not result in loss of Years of Service for vesting credited to a
Participant.


 


§ 2.35     Trust


 


“Trust” means the
Trust created under the Trust Agreement entered into by the Plan Sponsor (or
its delegate) and American Express Trust Company or any successor trustee.


 


§ 2.36     Trust
Fund


 


The “Trust Fund”
consists of the assets of the Plan held in the Trust.


 


14

















 


§ 2.37     Year of Service for Participation


 


A “Year of Service
for Participation” means the 6-consecutive month period (“computation period”)
during which the Employee completes at least 500 Hours of Service, which shall
be determined as follows:


 


For purposes of
determining a Year of Service for Participation, the eligibility computation
period is the 6-consecutive month period beginning on the date the Employee
first performs an Hour of Service for the Employer (employment commencement
date), and each consecutive six-month period thereafter, calculated on a
rolling basis.


 


For purposes of
determining a Year of Service for Participation, employees of The Musicland
Group, Inc. and its subsidiaries shall receive credit for Hours of Service
performed for The Musicland Group, Inc. and its subsidiaries, but only from
April 1, 2002 until June 16, 2003 (except as otherwise provided in Section
3.1).


 


§ 2.38     Year of Service for Vesting


 


For Plan Years
ending prior to June 1, 2000, a “Year of Service for Vesting” shall mean a Plan
Year during which the Employee had not less than 1,000 Hours of Service.  For Plan Years beginning on or after June 1,
2000, a “Year of Service for Vesting” shall mean each 12-month period beginning
on the date the Employee commences employment with the Employer and each
anniversary date thereafter during which the Employee is employed by the
Employer.


 


For purposes of
determining a Year of Service for Vesting, employees of The Musicland Group,
Inc. and its subsidiaries shall be credited with service with The Musicland
Group, Inc. and its subsidiaries, but only from April 1, 2002 until June 16,
2003 (except as otherwise provided in Section 3.1).


 


ARTICLE III

ELIGIBILITY TO PARTICIPATE


 


§ 3.1       Initial
Entry


 


Effective October
1, 2002, every Eligible Employee who has attained the age of 21 and completed a
Year of Service for Participation will be eligible to participate in the Plan
on the first day of the month which first occurs on or after such completion;
provided that he or she is an Eligible Employee on such date.  A Participant’s first Elective Deferral
Contribution to the Plan following his or her eligibility date will be made
from his or her compensation paid on the payroll date immediately following his
or her eligibility date.  All
Participants shall be required to furnish such information to the Plan
Administrator as it may reasonably request for the proper administration of the
Plan.


 


Effective December
31, 2001, Employees of Musicland Stores Corporation and all of the subsidiaries
of Musicland Stores Corporation (including without limitation The Musicland
Group, Inc.) who have completed a Year of Service for Participation with any of
such companies and reached age 21 on or before December 31, 2001, shall begin
participation in the Plan on January 1, 2002.


 


15

















 


§ 3.2       Resumption
of Participation


 


If a Participant
incurs at least a One Year Break in Service following termination of
employment, his or her active participation in the Plan shall be suspended
until he or she resumes employment with the Employer following such One Year
Break in Service.  Following such
resumption of employment, the Participant will be readmitted to active
participation in the Plan.  For purposes
of this Plan, the reemployment commencement date is the first day of the month
following reemployment.


 


ARTICLE IV

CONTRIBUTIONS TO THE TRUST


 


§ 4.1       Elective Deferrals by Participants


 


Effective as of
October 1, 2002, for such periods as the Plan Administrator may establish in a
nondiscriminatory manner, it shall permit each Participant (including without
limitation Employees who are about to become Participants) to elect to defer,
as Elective Deferrals under this Plan, up to 50% of his or her Compensation,
except as provided otherwise for such Participant under Section 4.1C and IRC
section 414(v), if applicable.


 


For such periods
prior to September 1, 1999, as the Plan Administrator may establish in a
nondiscriminatory manner, it shall permit each Participant (including without
limitation Employees who are expected to be Participants) to elect to defer up
to 15% of his or her Compensation, not to exceed 25% of his or her
Compensation.  Effective between
September 1, 1999, and September 30, 2002, a Participant may elect to defer up
to 20% of his or her Compensation.


 


Each such deferred
amount with respect to a Participant shall be contributed to the Plan and
allocated to his or her Participant Deferral Account.  The Plan Sponsor may, from time to time pursuant to established
rules, change the minimum and maximum allowable elective deferral
contributions.  A Participant may only defer
amounts that are not currently available to him or her.  No Participant shall be required to make a
deferral.  A Participant on a paid Leave
of Absence shall not be allowed to make Elective Deferrals.


 


§ 4.1A    Matching
Contributions


 


Subject to the limitations
contained in Sections 4.2C, 4.2D and 5.4, the Employer may contribute as a
Matching Contribution on behalf of each Participant in cash an amount based on
the Elective Deferrals (which are not subsequently returned to the Participant
pursuant to a corrective distribution described in Subsection 4.2B(b)) of the
Participant for the Plan Year, determined as follows:  Matching Contributions shall not exceed 5% of the Compensation of
the applicable Participant.  For Plan
Years beginning prior to June 1, 2000, an Employee must complete One Year of
Service and reached age 21 in order to be eligible to receive Matching
Contributions.  For Plan Years beginning
on or after June 1, 2000, the eligibility requirements for receiving Matching
Contributions shall be the same as for making Elective Deferral
Contributions.  Employees shall only be
eligible to receive Matching Contributions if the Employee makes Elective
Deferrals for the period covered by the Matching Contributions.  The


 


16

















 


amount or rate of Matching Contributions shall be determined from time
to time by the Plan Sponsor’s Board of Directors, in its sole discretion.


 


At the end of each
Plan Year, the Employer may make an additional Matching Contribution on behalf
of each Participant equal to a percentage of each Participant’s Elective
Deferrals or a dollar amount as determined each year by the Board of Directors
of the Plan Sponsor.  In order to
receive this additional Matching Contribution, the Participant must be employed
on the last day of the Plan Year.  If an
Employee terminates at Early Retirement Age or later, dies, or becomes disabled
during the year, the year-end employment requirement shall not apply.


 


Matching
Contributions shall be vested in accordance with the Plan’s general vesting
schedule contained in Section 6.3.  In
any event, Matching Contributions shall be fully vested at Early Retirement
Age, Normal Retirement Age, or upon the termination of this Plan.


 


Forfeitures of
Matching Contributions, other than Excess Aggregate Contributions, shall be
used to reduce Employer Matching Contributions or to pay Plan expenses, as
determined by the Plan Sponsor.


 


§ 4.1B    Qualified Nonelective Contributions


 


With respect to
any Plan Year, the Employer may make Qualified Nonelective Contributions to
Nonhighly Compensated Employees, as provided in Section 4.2B(g).


 


§ 4.1C    Additional Elective Deferral
Contributions


 


This Section 4.1C
is effective as of October 1, 2002.


 


All Employees 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” as Elective Deferrals in accordance
with, and subject to the limitations of, IRC section 414(v).  Such catch-up contributions shall not be
taken into account for purposes of the provisions of the Plan implementing the
required limitations of IRC sections 402(g) and 415.  The Plan shall not be treated as failing to satisfy the
provisions of the Plan implementing the requirements of IRC sections 401(k)(3),
401(k)(11), 401(k)(12), 410(b), or 416, as applicable, by reason of the making
of such catch-up contributions.


 


§ 4.2A    Annual Limitation on Participant Elective
Deferrals


 


(a)           Effective
as of October 1, 2002, no Participant shall be permitted to make Elective
Deferrals under this Plan, or any other qualified plan maintained by the
Employer during any taxable year, in excess of the dollar limitation contained
in IRC section 402(g), as in effect for such taxable year, except to the extent
permitted under Section 4.1C and IRC section 414(v), if applicable.  For periods before October 1, 2002, no
Participant shall be permitted to make Elective Deferrals under this Plan or any
other qualified plan maintained by the Employer during any calendar year in
excess of the dollar limitation set forth in Code Section 402(g) in effect for
such taxable year.


 


17

















 


(b)           Notwithstanding
any other provision of the Plan, Excess Deferral Amounts and income allocable
thereto shall be distributed no later than each April 15th to Participants who
claim such Excess Deferral Amounts for the preceding calendar year.  A distribution pursuant to this Subsection
4.2A(b) of Excess Deferral Amounts and income, gains and losses allocable
thereto shall be made without regard to any consent otherwise required under
Section 7.3 or any other provision of the Plan.  A distribution pursuant to this Subsection 4.2A(b) of Excess
Deferral Amounts and income, gains and losses allocable thereto shall not be
treated as a distribution for purposes of determining whether the distribution
required by Section 7.3(b)—(h) is satisfied. 
Any distribution under this Subsection 4.2A(b) of less than the entire
Excess Deferral Amount and income, gains and losses allocable thereto shall be
treated as a pro rata distribution of Excess Deferral Amounts and income, gains
and losses allocable thereto.  In no
case may an Employee receive from the Plan as a corrective distribution for a
taxable year under this Subsection 4.2A(b) an amount in excess of the
individual’s total Elective Deferrals under the Plan for the taxable year.


 


(c)           “Excess
Deferral Amount” shall mean those Elective Deferrals that are includible in a
Participant’s gross income under IRC section 402(g) to the extent such
Participant’s Elective Deferrals for a taxable year exceed the dollar
limitation under IRC section 402(g).  An
Excess Deferral Amount shall be treated as annual additions under the Plan,
unless such amounts are distributed no later than the first April 15 following
the close of the Participant’s taxable year.


 


(d)           The
Participant’s claim made pursuant to Subsection 4.2A(b) shall be in writing;
shall be submitted to the Plan Administrator no later than March 1 with respect
to the preceding calendar year; shall specify the Participant’s Excess Deferral
Amount for the preceding calendar year; and shall be accompanied by the
Participant’s written statement that if such amounts are not distributed, such
Excess Deferral Amount, when added to amounts deferred under other plans or
arrangements described in IRC sections 401(k), 408(k), or 403(b), exceeds the
limit imposed on the Participant by IRC section 402(g) for the calendar year in
which the deferral occurred.  A
Participant is deemed to notify the Plan Administrator of any Excess Deferral
Amount that arises by taking into account only those Elective Deferrals made to
this Plan and any other plans of this Employer.


 


(e)           The
Excess Deferral Amount shall be adjusted for income or loss.  The income or loss allocable to the Excess
Deferral Amount is equal to the allocable income or loss for the taxable year
of the individual as described in Paragraph (e)(i) below.


 


(i)            The
income or loss allocable to the Excess Deferral Amount for the taxable year of
the individual is equal to the income or loss for the taxable year of the
individual allocable to the Participant’s Elective Deferrals multiplied by a
fraction, the numerator of which is such Participant’s Excess Deferral Amount
for the taxable year, and the denominator is equal to the sum of the
Participant’s Participant Deferral Account as of the beginning of the taxable
year, plus the Participant’s Elective Deferrals for the taxable year.


 


(f)            The
Excess Deferral Amount which may be distributed under Subsection 4.2A(b) with
respect to an Employee for a taxable year shall be reduced by any Excess
Contributions previously distributed with respect to such Employee for the Plan
Year beginning with or within


 


18

















 


such taxable year.  In the event of a reduction under this Subsection 4.2A(f), the
amount of Excess Contributions included in the gross income of the Employee and
reported by the Employer as a distribution of Excess Contributions shall be
reduced by the amount of the reduction under this Subsection 4.2A(f).  All Matching Contributions attributable to
Excess Deferral Amounts shall be forfeited.


 


§ 4.2B    Average
Actual Deferral Percentage Limitation


 


(a)           The
Average Actual Deferral Percentage for a Plan Year for Eligible Employees who
are Highly Compensated Employees for such Plan Year may not exceed the greater
of:


 


(i)            the
Average Actual Deferral Percentage for all Eligible Employees who were
Nonhighly Compensated Employees for the prior Plan Year multiplied by 1.25, or


 


(ii)           the
Average Actual Deferral Percentage for all Eligible Employees who were
Nonhighly Compensated Employees for the prior Plan Year multiplied by 2.0, but
not more than 2 percentage points in excess of the Average Actual Deferral
Percentage of Eligible Employees who were Nonhighly Compensated Employees.


 


Effective for Plan
Years beginning after 1996, in determining whether the Plan’s 401(k)
arrangement satisfies either Average Actual Deferral Percentage test, the Plan
Administrator will use prior year testing, unless the Employer has elected (in
an amendment to this Plan) to use current year testing.


 


If the Plan
Sponsor elects in a Plan amendment to use current year testing, the Average
Actual Deferral Percentage tests in (i) and (ii), above (and for the Average
Actual Contribution Percentage test in Section 4.2C(a)), will be applied by
comparing the current Plan Year’s Average Deferral Percentage for Participants
who are Highly Compensated Employees for each Plan Year with the current Plan
Year’s Average Deferral Percentage for Participants who are Nonhighly
Compensated Employees.  Once made, this
election can only be undone if the Plan meets the requirements for changing to
prior year testing set forth in Internal Revenue Service Notice 98–1 (or
superseding guidance).


 


An Elective
Deferral will be taken into account under the Average Actual Deferral
Percentage test for a Plan Year only if it relates to compensation that, but
for the deferral election, either would have been received by the Eligible
Employee in the Plan Year or is attributable to services performed by the
Eligible Employee in the Plan Year and would have been received by him or her
within 2-1/2 months after the close of the Plan Year, and only if the Elective
Deferral is allocated to the Eligible Employee as of a date within that Plan
Year.  Such allocation of the Elective
Deferral must not be contingent on participation or performance of services
after the last day of the Plan Year, and the Elective Deferral must actually be
paid to the Trust no later than 12 months after the Plan Year to which the
Elective Deferral relates.


 


(b)           Should
neither limitation (i) nor (ii) in Subsection 4.2B(a) be met with respect to a
Plan Year, any Excess Contributions (as defined in Subsection 4.2B(d), plus any
income and minus any loss allocable thereto, shall be distributed no later than
the last day of each Plan Year to Participants to whose accounts such Excess
Contributions were allocated for the preceding


 


19

















 


Plan Year. 
Any Matching Contributions made on account of the Elective Deferrals
which are distributed shall be forfeited. 
For Plan Years beginning after December 31, 1996, the amount of Excess
Contributions of Highly Compensated Employees to be distributed is determined
as follows:


 


(i)            The
amount of the Excess Contribution for each Highly Compensated Employee is
determined, in accordance with Subsection 4.2B(d), by computing the excess of
(A) the aggregate amount of Employer contributions actually taken into account
in computing the Average Actual Deferral Percentage of all Highly Compensated
Employees for such Plan Year, over (B) the Actual Deferral Percentage for the
Highly Compensated Employee;


 


(ii)           The
Plan Administrator will determine the total amount of Excess Contributions to
the Plan by starting with the Highly Compensated Employee(s) who has the
greatest Actual Deferral Percentage, reducing his or her Actual Deferral
Percentage (but not below the next highest Actual Deferral Percentage), then,
if necessary, reducing the Actual Deferral Percentage of the Highly Compensated
Employee(s) at the next highest Actual Deferral Percentage level, including
those Highly Compensated Employee(s) who have already been reduced under this
Paragraph 4.2(B)(b)(ii) (but not below the next highest Actual Deferral
Percentage), and continuing in this manner until the Actual Deferral Percentage
for the group of Highly Compensated Employees satisfies the Average Actual
Deferral Percentage test.


 


(iii)          After
the Plan Administrator has determined the total Excess Contribution amount, the
Trustee, as directed by the Plan Administrator, then will distribute to each
Highly Compensated Employee his or her respective share of the Excess
Contributions.  The Plan Administrator
will determine each Highly Compensated Employee’s share of Excess Contributions
by starting with the Highly Compensated Employee(s) who has the highest dollar
amount of Elective Deferrals, reducing his or her Elective Deferrals (but not
below the next highest dollar amount of Elective Deferrals), then, if
necessary, reducing the Elective Deferrals of the Highly Compensated
Employee(s) at the next highest dollar amount of Elective Deferrals, including the
Elective Deferrals of those Highly Compensated Employee(s) who have already
been reduced under this Paragraph 4.2(B)(b)(iii) (but not below the next
highest dollar amount of Elective Deferrals), and continuing in this manner
until the Trustee has distributed all Excess Contributions.  For purposes of this Paragraph
4.2(B)(b)(iii) “Elective Deferrals” shall include any Employer contributions
described in Section 2.2 that are actually used in the Average Actual Deferral
Percentage test for the Plan Year.


 


If such Excess
Contribution amounts are distributed more than 2–1/2 months after the last day
of the Plan Year in which such Excess Contribution amounts arose, a 10% excise
tax will be imposed on the Employer maintaining the Plan with respect to such
amounts.


 


Excess
Contributions (including the amounts re-characterized) shall be treated as
annual additions under the Plan.  A
distribution of Excess Contributions and income, gains and losses allocable
thereto shall be made without regard to any consent otherwise required under
Section 7.3 or any other provision of the Plan.  A distribution pursuant to Paragraph 4.2B(b)(iii) of


 


20

















 


Excess Contributions and income, gains and losses allocable thereto
shall not be treated as a distribution for purposes of determining whether the
distribution required by Subsection 7.3(b)–(g) is satisfied.  Any distribution under Paragraph
4.2B(b)(iii) of less than the entire Excess Contribution and income, gains and
losses allocable thereto shall be treated as a pro rata distribution of Excess
Contributions and income, gains and losses allocable thereto.  In no event shall Excess Contributions for a
Plan Year remain unallocated or be allocated to a suspense account for
allocation to one or more employees in any future Plan Year.


 


Excess
Contributions shall be distributed from the Participant’s Participant Deferral
Account.  Excess Contributions shall be
distributed from the Participant’s Qualified Nonelective Contribution Account
only to the extent that such Excess Contributions exceed the balance in the
Participant’s Participant Deferral Account.


 


(c)           The
Average Actual Deferral Percentage for any Participant who is a Highly
Compensated Employee for the Plan Year and who is eligible to have Elective
Deferrals (and Qualified Nonelective Contributions, if treated as Elective
Deferrals for purposes of the test described in Subsection (a)) allocated to
his or her accounts under two or more arrangements described in IRC section
401(k), that are maintained by the Employer, shall be determined as if such
Elective Deferrals (and, if applicable, such Qualified Nonelective
Contributions) were made under a single arrangement.  If a Highly Compensated Employee participates in two or more cash
or deferred arrangements that have different Plan Years, all cash or deferred
arrangements ending with or within the same calendar year shall be treated as a
single arrangement.  Notwithstanding the
foregoing, certain plans shall be treated as separate if mandatorily
disaggregated under regulations under IRC section 401(k).


 


In the event that
this Plan satisfies the requirements of IRC sections 401(k), 401(a)(4), or
410(b) only if aggregated with one or more other plans, or if one or more other
plans satisfy the requirements of such sections of the Internal Revenue Code
only if aggregated with this Plan, then this Section shall be applied by
determining the Average Actual Deferral Percentage of employees as if all such
plans were a single plan.  Any
adjustments to the Nonhighly Compensated Employee Actual Deferral Percentage
for the prior year will be made in accordance with Notice 98–1 and any
superseding guidance, unless the Plan Sponsor is using the current year testing
method.  Plans may be aggregated in
order to satisfy IRC section 401(k) only if they have the same Plan Year and
use the same Actual Deferral Percentage testing method.


 


(d)           For
purposes of this Plan, “Excess Contributions” shall mean, with respect to any
Plan Year, the excess of:


 


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


 


(ii)           The
maximum amount of such contributions permitted by the Average Actual Deferral
Percentage test (determined by reducing contributions made on behalf of Highly
Compensated Employees in order of the Average Deferral Percentages, beginning
with the highest of such percentages).


 


21

















 


In no case shall
the amount of Excess Contributions for a Plan Year with respect to any Highly
Compensated Employee exceed the amount of Elective Deferrals made on behalf of
such Highly Compensated Employee for such Plan Year.


 


(e)           Excess
Contributions shall be adjusted for income or loss on the portion of the Excess
Contribution distributed to the Participant. 
The income or loss allocable to Excess Contributions allocated to each
Participant is equal to the allocable income or loss for the taxable year of
the individual as described in Paragraph (e)(i) below.


 


(i)            The
income or loss allocable to Excess Contributions is equal to the income or loss
allocable to the Participant’s Participant Deferral Account (and, if
applicable, the Qualified Nonelective Contribution Account) for the Plan Year
multiplied by a fraction, the numerator of which is such Participant’s Excess
Contributions for the year distributed to him or her, and the denominator is
equal to the sum of the Participant’s account balance attributable to Elective
Deferrals (and Qualified Nonelective Contributions, if any of such
contributions are included in the Average Actual Deferral Percentage test) as
of the beginning of the Plan Year, plus the Participant’s Elective Deferrals
(and Qualified Nonelective Contributions, if any of such contributions are
included in the Average Actual Deferral Percentage test) for the Plan Year.


 


(f)            Coordination
of Excess Contributions with Distribution of Excess Deferrals.


 


(i)            The
amount of Excess Contributions to be distributed under Subsection 4.2B(b) with
respect to a Highly Compensated Employee for a Plan Year shall be reduced by
any Excess Deferral Amount previously distributed in accordance with Subsection
4.2A(b) to such Participant for the Participant’s taxable year ending with or
within such Plan Year.


 


(ii)           The
Excess Deferral Amount that may be distributed under Subsection 4.2A(b) with
respect to an Employee for a taxable year shall be reduced by any Excess
Contributions previously distributed with respect to such Employee for the Plan
Year beginning with or within such taxable year.  In the event of a reduction under this Paragraph (f)(ii), the
amount of Excess Contributions included in the gross income of the Employee and
the amount of Excess Contributions reported by the Employer as includible in
the gross income of the Employee shall be reduced by the amount of the
reduction under Subsection 4.2A(f).


 


(g)           Should
Subsection 4.2B(b) be applicable with respect to a Plan Year, the Employer may,
in its discretion, in lieu of or in conjunction with the reductions described
in Subsection 4.2B(b), contribute an additional amount as a Qualified
Nonelective Contribution, which shall be allocated only to Nonhighly
Compensated Employees in the following manner. 
Qualified Nonelective Contributions shall be made to Nonhighly
Compensated Employees beginning with the Participant with the lowest
Compensation, and shall be made in an amount which, when combined with other
additions to such Participant’s Account for the Plan Year, equals the maximum
annual addition permitted under Code Section 415.  This process shall continue with a contribution to the next
lowest paid Participant until one of the tests set forth in


 


22

















 


Section 4.2 B (a) is satisfied.  Contributions made pursuant to this
Subsection (g) shall be 100% vested at all times and shall be subject to the
same limitations as to withdrawal and distribution as Elective Deferrals.  If the Plan is using the Prior Year Testing
Method, Qualified Nonelective Contributions for a prior Plan Year must be made
no later than the end of the following Plan Year.


 


(h)           For
purposes of determining the test described in this Subsection (a), Elective
Deferrals and Qualified Nonelective Contributions must be made before the last
day of the twelve-month period immediately following the Plan Year to which
contributions relate.


 


(i)            The
Plan Administrator shall maintain records sufficient to demonstrate
satisfaction of the test described in this Section 4.2B and the amount of
Qualified Nonelective Contributions used in such test.


 


(j)            The
determination and treatment of the Average Actual Deferral Percentage amounts
of any Participant shall satisfy such other requirements as may be prescribed
by the Secretary of the Treasury.


 


§ 4.2C    Average
Actual Contribution Percentage Limitation


 


(a)           The
Average Actual Contribution Percentage for a Plan Year for Eligible Employees
who are Highly Compensated Employees for such Plan Year may not exceed the greater
of:


 


(i)            the
Average Actual Contribution Percentage for all Eligible Employees who are
Nonhighly Compensated Employees for the prior Plan Year multiplied by 1.25; or


 


(ii)           the
Average Actual Contribution Percentage for Participants who were Nonhighly Compensated
Employees for the prior Plan Year multiplied by 2.0, provided that the Average
Actual Contribution Percentage for Participants who are Highly Compensated
Employees does not exceed the Average Actual Contribution Percentage for
Participants who were Nonhighly Compensated Employees in the prior Plan Year by
more than 2 percentage points.


 


Effective for Plan
Years beginning after 1996, in determining whether the Plan’s 401(k)
arrangement satisfies either Average Actual Contribution Percentage test, the
Plan Administrator will use prior year testing, unless the Employer has elected
(in an amendment to this Plan) to use current year testing.


 


If the Plan
Sponsor elects in a plan amendment to use current year testing, the Actual
Contribution Percentage in Section 2.8A, and the Average Actual Contribution
Percentages tests in (i) and (ii), above (and for the Average Actual Deferral
Test in Section 4.2B(a)), will be applied by comparing the current Plan Year’s
Average Actual Contribution Percentage for Participants who are Highly
Compensated Employees for each Plan Year with the current Plan Year’s Average
Actual Contribution Percentage for Participants who are Nonhighly Compensated
Employees.  Once made, this election can
only be undone if the Plan meets the


 


23

















 


requirements for changing to prior year testing set forth in Notice
98–1 (or superseding guidance).


 


(b)           The
Actual Contribution Percentage for any Eligible Employee who is a Highly
Compensated Employee for the Plan Year and who is eligible to receive matching
contributions allocated to his or her account under two or more plans that (i)
have contributions to which IRC section 401(m) applies, and (ii) are maintained
by the Employer or an Affiliated Employer, shall be determined as if all such
matching contributions were made under a single plan for purposes of this
Section 4.2C.  Notwithstanding the
foregoing, certain plans shall be treated as separate if mandatorily
disaggregated under regulations under IRC section 401(m).


 


(c)           In
the event that this Plan satisfies the requirements of IRC section 401(m),
401(a)(4) or 410(b) only if aggregated with one or more other plans, or if one
or more other plans satisfy the requirements of such sections of the Internal
Revenue Code only if aggregated with this Plan, then this Section 4.2C shall be
applied by determining the Actual Contribution Percentage of Employees as if
all such plans were a single plan.  Any
adjustments to the Nonhighly Compensated Employee Average Actual Contribution
Percentage for the prior year will be made in accordance with Notice 98–1 and
any superseding guidance, unless the Plan Sponsor has elected in a Plan
amendment to use the current year testing method.  Plans may be aggregated in order to satisfy IRC section 401(m)
only if they have the same Plan Year and use the same Average Actual
Contribution Percentage testing method.


 


(d)           Notwithstanding
any other provision of this Plan, Excess Aggregate Contributions, plus any
income and minus any loss allocable thereto, shall be forfeited, if
forfeitable, or if not forfeitable, distributed no later than the last day of
each Plan Year to Participants to whose accounts such Excess Aggregate
Contributions were allocated for the preceding Plan Year.  For Plan Years beginning after December 31,
1996, the amount of Excess Aggregate Contributions of Highly Compensated
Employees to be distributed is determined as follows:


 


(i)            The
amount of the Excess Aggregate Contribution for each Highly Compensated Employee
is determined, in accordance with Subsection 4.2C(e), by computing the excess
of (A) the aggregate amount of Employer contributions actually taken into
account in computing the Average Actual Contribution Percentage of all Highly
Compensated Employees for such Plan Year, over (B) the Actual Contribution
Percentage for the Highly Compensated Employee;


 


(ii)           The
Plan Administrator will determine the total amount of Excess Aggregate
Contributions to the Plan by starting with the Highly Compensated Employee(s)
who has the greatest Actual Contribution Percentage, reducing his or her Actual
Contribution Percentage (but not below the next highest Actual Contribution
Percentage), then, if necessary, reducing the Actual Contribution Percentage of
the Highly Compensated Employee(s) at the next highest Actual Contribution
Percentage level, including those Highly Compensated Employee(s) who have
already been reduced under this Paragraph 4.2(C)(d)(ii) (but not below the next
highest Actual Contribution Percentage), and continuing in this manner until
the Actual Contribution Percentage for


 


24

















 


the group of Highly Compensated Employees
satisfies the Average Actual Contribution Percentage test.


 


(iii)          After
the Plan Administrator has determined the total Excess Aggregate Contribution
amount, the Trustee, as directed by the Plan Administrator, then will
distribute (to the extent Vested) to each Highly Compensated Employee his or
her respective share of the Excess Aggregate Contributions.  The Plan Administrator will determine each
Highly Compensated Employee’s share of Excess Aggregate Contributions by
starting with the Highly Compensated Employee(s) who has the highest dollar
amount of Matching Contributions, reducing his or her Matching Contributions
(but not below the next highest dollar amount of Matching Contributions), then,
if necessary, reducing the Matching Contributions of the Highly Compensated
Employee(s) at the next highest dollar amount of Matching Contributions,
including the Matching Contributions of those Highly Compensated Employee(s)
who have already been reduced under this Paragraph 4.2(C)(d)(iii) (but not
below the next highest dollar amount of Matching Contributions), and continuing
in this manner until the Trustee has distributed all Excess Aggregate
Contributions.  For purposes of this
Paragraph 4.2(C)(d)(iii) “Matching Contributions” shall include any Employer
contributions described in Section 2.8A that are actually used in the Average
Actual Contribution Percentage test for the Plan Year.


 


If such Excess Aggregate Contributions are distributed more than 2–1/2
months after the last day of the Plan Year in which such excess amounts arose,
a 10% excise tax will be imposed on the Employer maintaining the Plan with
respect to those amounts.  Excess
Aggregate Contributions shall be treated as annual additions under the
Plan.  A distribution of Excess
Aggregate Contributions and income, gains and losses allocable thereto shall be
made without regard to any consent otherwise required under Section 7.3 or any
other provision of the Plan.  A
distribution pursuant to this Subsection 4.2C(d) of Excess Aggregate
Contributions and income, gains and losses allocable thereto shall not be
treated as a distribution for purposes of determining whether the distributions
required by Subsections 7.3(b)–(g) are satisfied.


 


Excess Aggregate
Contributions shall be distributed from the Participant’s Matching Contribution
Account.  Excess Aggregate Contributions
shall be distributed from the Participant’s Qualified Nonelective Contribution
Account only to the extent that such Excess Aggregate Contributions exceed the
balance in the Participant’s Matching Contribution Account.


 


(e)           For
purposes of this Plan, “Excess Aggregate Contributions” shall mean, with
respect to any Plan Year, the excess of:


 


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


 


(ii)           The
maximum amount of such contributions permitted by the Average Actual
Contribution Percentage test (determined by reducing contributions made on


 


25

















 


behalf of Highly Compensated Employees in order
of the Actual Contribution Percentages, beginning with the highest of such
percentages).


 


Such determination
shall be made after first determining Excess Deferral Amounts pursuant to
Section 4.2A and then determining Excess Contributions pursuant to Section
4.2B.  In no case shall the amount of
Excess Aggregate Contributions with respect to any Highly Compensated Employee
exceed the amount of after-tax contributions and matching contributions made on
behalf of such Highly Compensated Employee for such Plan Year.


 


(f)            Should
the limitations of Subsection 4.2C(a)(i) and (ii) be exceeded with respect to a
Plan Year, the Employer may, in its discretion, in lieu of the distribution of
Excess Aggregate Contributions described in Subsection 4.2C(d), contribute an
additional amount as a Qualified Nonelective Contribution, which shall be
allocated only to Nonhighly Compensated Employees in the following manner.  Qualified Nonelective Contributions shall be
made to Nonhighly Compensated Employees beginning with the Participant with the
lowest Compensation and shall be made in an amount which, when combined with
other additions to such Participant’s Account for the Plan Year, equals the
maximum annual addition permitted under Code Section 415.  This process shall continue with a
contribution to the next lowest paid Participant until one of the tests set
forth in Section 4.2C (a) is satisfied. 
Contributions made pursuant to this Subsection (f) shall be 100% vested
at all times and shall be subject to the same limitations as to withdrawal and
distribution as Elective Deferrals.  If
the Plan is using the Prior Year Testing Method, Qualified Nonelective
Contributions for a prior Plan Year must be made no later than the end of the
following Plan Year.


 


(g)           Excess
Aggregate Contributions shall be adjusted for income or loss.  The income or loss allocable to Excess
Aggregate Contributions Amounts allocable to each Participant is equal to the
allocable income or loss for the taxable year of the individual as described in
Paragraph (g)(i) below.


 


(i)            The
income or loss allocable to Excess Aggregate Contributions is equal to the
income or loss allocable to the Participant’s Matching Contributions Account
and, if applicable, Qualified Nonelective Contribution Account and Participant
Deferral Account of the Plan Year multiplied by a fraction, the numerator of
which is such Participant’s Excess Aggregate Contributions for the Plan Year
distributed to him or her, and the denominator is equal to the sum of the
Participant’s account balance(s) attributable to Matching Contributions and, if
applicable, Qualified Nonelective Contributions and Elective Deferrals as of
the beginning of the Plan Year, plus the Matching Contributions and, if
applicable, Qualified Nonelective Contributions and Elective Deferrals for the
Plan Year.


 


(h)           Excess
Aggregate Contributions shall be forfeited, if forfeitable or distributed
first, from the Participant Matching Contributions Account, and second, from
the Participant’s Qualified Nonelective Contribution Account.


 


(i)            Forfeitures
of Excess Aggregate Contributions shall be applied to reduce Employer
contributions.


 


26

















 


(j)            Notwithstanding
the foregoing, no forfeitures arising under this Section 4.2C shall remain
unallocated or be allocated to a suspense account for allocation to one or more
Employees in any future Plan Year.


 


§ 4.3       Permissible Types of Employer
Contributions


 


Payments on
account of the contributions due from the Employer for any year may be made in
cash or in kind; except that assets may not be contributed if such contribution
violates the prohibited transaction rules of IRC section 4975, or the
corresponding rules under ERISA section 406, if applicable.


 


§ 4.4       Loans to Participants


 


Participants may
borrow funds from the Plan subject to the following conditions and
requirements:


 


(a)           No
loan to any Participant or Beneficiary can be made to the extent that such loan
when added to the outstanding balance of all other loans to the Participant or
Beneficiary would exceed the lesser of (i) $50,000 reduced by the excess (if
any) of the highest outstanding balance of loans during the one-year period
ending on the day before the loan is made, over the outstanding balance of
loans from the Plan on the date the loan is made, or (ii) one-half of the
present value of the vested Accrued Benefit of the Participant.  For the purpose of the above limitation, all
loans from all plans of the Employer and any Affiliated Employer are
aggregated.  Furthermore, any loan shall
by its terms require that repayment (principal and interest) be amortized in
level payments, not less frequently than quarterly, over a period not extending
beyond five years from the date of the loan, unless such loan is used to
acquire a dwelling unit which within a reasonable time (determined at the time
the loan is made) will be used as the principal residence of the
Participant.  An assignment or pledge of
any portion of the Participant’s interest in the Plan and a loan, pledge, or
assignment with respect to any insurance contract purchased under the Plan,
will be treated as a loan under this Subsection (a).


 


(b)           Loans
may not be made to Participants or Beneficiaries who are Highly Compensated
Employees in percentage amounts greater than amounts made available to other
Participants and Beneficiaries, and such loans must be made available to all
Participants and Beneficiaries on a reasonably equivalent basis.  However, loans will not be made in an amount
less than $1,000.  Any loans made will
bear interest at the rate equal to the prime interest rate, plus one percentage
point, and must be adequately secured, as determined by the Plan
Administrator.  A Participant may not
have more than one loan outstanding at any one time.  Provided, however, that any Participant who was formerly a
participant in the Musicland Group, Inc. Capital Accumulation Plan and had more
than one loan outstanding from that plan on December 31, 2001 is not subject to
this rule until one of such loans is repaid.  
The Participant Deferral Account, Participant Matching Account and
Rollover Account of the borrower may be pledged as security for such
loans.  All costs and expenses in
connection with obtaining the loans and perfecting the Plan’s security interest
therein, including but not limited to taxes, recording fees, filing fees and
attorney’s fees shall be prepaid by the Participant or Beneficiary or shall be
deducted from the total proceeds of the loan.


 


27

















 


(c)           Any
loan shall be allocated to the accounts of the Participant to whom the loan is
made in the following order of priority: (i) Rollover Account; (ii) Participant
Deferral Account; and (iii) Participant Matching Account.  Repayment of principal and interest on the
loan shall be allocated to such accounts in the proportion based upon the
Participant’s investment elections in effect at the time repayment is made.


 


(d)           The
Plan Administrator may adopt a loan policy governing the administration of Plan
loans, provided that it shall not conflict with the Plan.


 


(e)           In
the event of default, foreclosure on the note and attachment of security will
not occur until a distributable event occurs in the Plan.


 


§ 4.5       Rollover Contributions


 


(a)           Any
Employee may make a Rollover Contribution to this Plan, provided, however, that
the trust from which the funds are to be transferred must permit the transfer
to be made, and provided, further, the Plan Administrator is reasonably
satisfied that such transfer will not jeopardize the tax exempt status of this
Plan or Trust or create adverse tax consequences for the Employer.  Rollover Contributions shall be made by
delivery to the Trustee (or to the Employer for delivery to the Trustee) for
deposit in the Trust.  All Rollover
Contributions must be in cash or property satisfactory to the Trustee, whose
decision in this regard shall be final. 
The Trustee will not accept rollovers of accumulated deductible employee
contributions from a simplified employee pension plan.


 


(b)           If
the Plan Administrator accepts such transfer of funds, it shall allocate them
to the Rollover Account of the transfer. 
Such funds shall be 100% vested.


 


(c)           Rollover
Contributions shall not be considered to be Participant contributions for the
purpose of calculating the limitations under Section 5.4.


 


ARTICLE V

ADMINISTRATION OF ACCOUNTS


 


§ 5.1       Investments


 


The amounts
allocated to the Participant Deferral, Matching and Rollover Accounts shall be
invested by the Trustee in accordance with the provisions in the Trust
Agreement.


 


§ 5.2       Invest in Single Fund and Reasonable
Rules


 


The Trustee may
cause all contributions paid to it by the Employer and, if applicable the
Participants, and the income therefrom, without distinction between principal
and income, to be held and administered as a single fund, or in a Pooled
Investment Account and the Trustee shall not be required to invest separately
any share of any Participant except as provided in Sections 4.4 and 4.5 and the
Trust Agreement.  The Trustee may adopt
reasonable rules for the administration of such common fund and for the
determination of the proportionate interest of each Participant in the fund.


 


28

















 


§ 5.3       Valuation of Assets and Allocation of
Changes


 


The assets of the
Trust Fund will be valued at their fair market value as of the close of each
business day the New York Stock Exchange is open, and the (a) Participant
Deferral Account, (b) Matching Contributions Account, and (c) Rollover Account
of each Participant shall be adjusted by allocating to each such Account the
respective share of any net appreciation or net depreciation in the assets of
the Plan, and any net income or net loss of the Trust for each day; provided,
however, that such allocations to self-directed Participant Accounts shall be
made according to the designated investments in certain assets of the Plan.


 


In addition, all
of the assets of the Trust Fund will be valued at their fair market value as of
the close of business on the last day of the Plan Year.


 


§ 5.4       Limitations on Allocations to Each
Participant


 


(a)           This
Section 5.4(a) applies to Participants who are not covered under certain other
Employer plans or arrangements identified here below:


 


(i)  If the Participant does not
participate in, and has never participated in, another qualified plan
maintained by the Employer, or a welfare benefit fund (as defined in section
419(e) of the IRC) maintained by the Employer, or an individual medical account
(as defined in section 415(l)(2) of the IRC) maintained by the Employer, or a
simplified employee pension (as defined in section 408(k) of the IRC)
maintained by the Employer, that provides an annual addition as defined in
Paragraph (d)(i), the amount of annual additions that may be credited to the
Participant’s account for any limitation year will not exceed the lesser of the
maximum permissible amount or any other limitation contained in this Plan.  If the Employer contribution that would
otherwise be contributed or allocated to the Participant’s account would cause
the annual additions for the limitation year to exceed the maximum permissible
amount, the amount contributed or allocated will be reduced so that the annual
additions for the limitation year will equal the maximum permissible amount.


 


(ii)           Prior
to determining the Participant’s actual compensation for the limitation year,
the Plan Administrator may determine the maximum permissible amount for a
Participant on the basis of a reasonable estimation of the Participant’s
compensation for the limitation year, uniformly determined for all Participants
similarly situated.


 


(iii)          As
soon as administratively feasible after the end of the limitation year, the
maximum permissible amount for the limitation year will be determined on the
basis of the Participant’s actual compensation for the limitation year.


 


(iv)          If,
pursuant to Paragraph (a)(iii) or as a result of an allocation of Forfeitures
there is an excess amount the excess will be disposed of as follows:


 


(1)           Any
nondeductible voluntary employee contributions (plus Attributable earnings), to
the extent they would reduce the excess amount, will be returned to the
Participant;


 


29

















 


(2)           If
after the application of Subparagraph (1) an excess amount still exists, any
elective deferrals (plus attributable earnings), to the extent they would
reduce the excess amount, will be distributed to the participant;


 


(3)           If
after the application of Subparagraph (2) an excess amount still exists, and
the Participant is covered by the Plan at the end of the limitation year, the
excess amount in the Participant’s account will be used to reduce Employer
contributions (including any allocation of Forfeitures) for such Participant in
the next limitation year, and each succeeding limitation year if necessary.


 


(4)           If
after the application of Subparagraph (2) an excess amount still exists, and
the Participant is not covered by the Plan at the end of a limitation year, the
excess amount will be held unallocated in a suspense account.  The suspense account will be applied to
reduce Employer contributions for all remaining Participants in the next
limitation year, and each succeeding limitation year if necessary.


 


(5)           If
a suspense account is in existence at any time during a limitation year
pursuant to this Section, it will not participate in the allocation of the
Trust’s investment gains and losses.  If
a suspense account is in existence at any time during a particular limitation
year, all amounts in the suspense account must be allocated and reallocated to
Participants’ accounts before any Employer or Employee contributions may be
made to the Plan for that limitation year. 
Excess amounts may not be distributed to Participants or former
Participants.


 


(b)           This
Section 5.4(b) applies to Participants who are covered under certain other
Employer plans or arrangements identified here below:


 


(i)            This
Subsection (b) applies if, in addition to this Plan, the Participant is covered
under another qualified defined contribution plan maintained by the Employer, a
welfare benefit fund, as defined in IRC section 419(e) maintained by the
Employer, or an individual medical account, as defined in IRC section
415(l)(2), maintained by the Employer or a simplified employee pension, as
defined in IRC section 408(k), maintained by the Employer which provides an
annual addition as defined in Paragraph (d)(i), during any limitation
year.  The annual additions which may be
credited to a Participant’s account under this Plan for any such limitation
year will not exceed the maximum permissible amount reduced by the annual
additions credited to a Participant’s account under the other plans and welfare
benefit funds for the same limitation year. 
If the annual additions with respect to the Participant under the other
defined contribution plans and welfare benefit funds maintained by the Employer
are less than the maximum permissible amount and the Employer contribution that
would otherwise cause the annual additions for the limitation year to exceed
this limitation, the amount contributed or allocated will be reduced so that
the annual additions under all such plans and funds for the limitation year
will equal the maximum permissible amount. 
If the annual additions with respect to the Participant under such other
defined contribution plans and welfare benefit funds in the aggregate are equal
to or greater than the maximum permissible amount, no amount


 


30

















 


will be contributed or allocated to the
Participant’s account under this Plan for the limitation year.


 


(ii)           Prior
to determining the Participant’s actual compensation for the limitation year,
the Plan Administrator may determine the maximum permissible amount for a
Participant in the manner described in Paragraph (a)(ii).


 


(iii)          As
soon as is administratively feasible after the end of the limitation year, the
maximum permissible amount for the limitation year will be determined on the
basis of the Participant’s actual compensation for the limitation year.


 


(iv)          If,
pursuant to Paragraph (b)(iii) or as a result of the allocation of forfeitures,
a Participant’s annual additions under this Plan and such other plans would
result in an excess amount for a limitation year, the excess amount will be
deemed to consist of the annual additions last allocated, except that annual
additions attributable to a welfare fund or individual medical account will be
deemed to have been allocated first regardless of the actual allocation date.


 


(v)           If
an excess amount was allocated to a Participant on an allocation date of this
Plan which coincides with an allocation date of another plan, the excess amount
attributed to this Plan will be the product of:


 


(1)           the
total excess amount allocated as of such date, times


 


(2)           the
ratio of (i) the annual additions allocated to the Participant for the
limitation year as of such date under this Plan to (ii) the total annual
additions allocated to the Participant for the limitation year as of such date
under this and all the other qualified defined contribution plans.


 


(vi)          Any
excess amount attributed to this Plan will be disposed in the manner described
in Paragraph (a)(iv).


 


(c)           If
the Employer maintains, or at any time maintained, a qualified defined benefit
plan covering any Participant in this Plan, the sum of the Participant’s
defined benefit fraction and defined contribution fraction will not exceed 1.0
in any limitation year.  The annual
additions which may be credited to the Participant’s account under this Plan
for any limitation year are limited as follows:  If the Participant’s defined benefit fraction and defined
contribution fraction would otherwise exceed 1.0, the Participant’s accruals
under the defined benefit plan will be reduced to the extent necessary to
prevent such combined fraction from exceeding 1.0 before any annual additions
to this Plan or any other defined contribution plan maintained by the Employer
are reduced.


 


For Plan Years
beginning after December 31, 1999, this Paragraph (c) shall not apply.


 


(d)           For
purposes of this Section 5.4, the following words and terms shall have the
meanings indicated:


 


31

















 


(i)            “Annual
additions.” Annual additions means the sum of the following credited to a
Participant’s account for the limitation year:


 


(1)           Employer
contributions;


 


(2)           employee
contributions;


 


(3)           forfeitures;


 


(4)           amounts
allocated, after March 31, 1984, to an individual medical account, as defined
in IRC section 415(l)(2), which is part of a pension or annuity plan maintained
by the Employer are treated as annual additions to a defined contribution
plan.  Also amounts derived from
contributions paid or accrued after December 31, 1985, in taxable years ending
after such date, which are attributable to post-retirement medical benefits, allocated
to the separate account of a key employee, as defined in IRC section
419A(d)(3), under a welfare benefit fund, as defined in IRC section 419(e),
maintained by the Employer are treated as annual additions to a defined
contribution plan; and


 


(5)           allocations
under a simplified employee pension.


 


For this purpose,
any excess amount applied under (a)(iv) or (b)(vi) in the limitation year to
reduce Employer contributions will be considered annual additions for such
limitation year.


 


(ii)           “Compensation
and Elective Contributions.” 
Compensation means wages, salaries, and fees for professional services
and other amounts received (without regard to whether or not an amount is paid
in cash) for personal services actually rendered in the course of employment with
the Employer maintaining the plan to the extent that the amounts are includible
in gross income (including, but not limited to, commissions paid salespeople,
compensation for services on the basis of a percentage of profits, commissions
on insurance premiums, tips, and bonuses, and excluding the following:


 


(1)           Reimbursements
or other expense allowances;


 


(2)           Fringe
benefits (cash and non-cash);


 


(3)           Reimbursement
of moving expenses;


 


(4)           Welfare
plan benefits or contributions;


 


(5)           Employer
contributions to a plan of deferred compensation that are not includible in the
Employee’s gross income for the taxable year in which contributed, or Employer
contributions under a simplified employee pension plan to the extent such
contributions are deductible by the employee, or any distributions from a plan
of deferred compensation;


 


32

















 


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


 


(7)           Amounts  realized from the sale, exchange or other
disposition of stock acquired under a qualified stock option; and


 


(8)           Other
amounts which received special tax benefits.


 


Provided, however,
that for limitation years beginning after December 31, 1997, Compensation shall
include, notwithstanding any of the preceding exclusions, any Elective
Contributions made by the Employer on behalf of Participants.


 


“Elective
Contributions” are amounts excludible from the Employee’s gross income under
IRC sections 125, 132(f)(4), 402(e)(3), 402(h)(2), 403(b), 408(p) or 457; and
contributed by the Employer, at the Employee’s election, to a cafeteria plan, a
qualified transportation fringe benefit plan, an IRC section 401(k)
arrangement, a SARSEP, a tax-sheltered annuity, a SIMPLE plan or an IRC section
457 plan.  Notwithstanding the preceding
sentence, amounts described in IRC section 132(f)(4) are not Elective
Contributions until Plan Years beginning on or after January 1, 2001, unless
the Plan Administrator operationally has included such amounts effective as of
an earlier Plan Year beginning no earlier than January 1, 1998.


 


For purposes of
applying the limitations of this Section 5.4, Compensation for a limitation
year is the Compensation actually paid or made available during such limitation
year.


 


Notwithstanding
the preceding sentence, Compensation in a defined contribution plan for a
Participant who is permanently and totally disabled (as defined in IRC section
22(e)(3)) is the compensation such Participant would have received for the
limitation year before becoming permanently and totally disabled; and for
limitation years beginning before January 1, 1997, but not for limitation years
beginning after December 31, 1996, such imputed compensation for the disabled
Participant may be taken into account only if the Participant is not a Highly
Compensated Employee (as defined in IRC section 414(q)) and contributions made on
behalf of such Participant are nonforfeitable when made.


 


(iii)          “Defined
benefit fraction.” Defined benefit fraction means a fraction, the numerator of
which is the sum of the Participant’s projected annual benefits under all the
defined benefit plans (whether or not terminated) maintained by the Employer,
and the denominator of which is the lesser of 125% of the dollar limitation
determined for the limitation year under IRC sections 415(b) and (d) or 140% of
the highest average compensation, including any adjustments under IRC section
415(b).


 


Notwithstanding the above, if the Participant was a Participant as of
the first day of the first limitation year beginning after December 31, 1986,
in one or more defined benefit plans maintained by the Employer which were in
existence on May 6, 1986, the


 


33

















 


denominator of
this fraction will not be less than 125% of the sum of the annual benefits
under such plans which the Participant had accrued as of the close of the last
limitation year beginning before January 1, 1987, disregarding any changes in
the terms and conditions of the plan after May 5, 1986.  The preceding sentence applies only if the
defined benefit plans individually and in the aggregate satisfied the requirements
of IRC section 415 for all limitation years beginning before January 1, 1987.


 


(iv)          “Defined
contribution dollar limitation.”  For
limitation years beginning on or after January 1, 2002, the defined
contribution dollar limitation is $40,000, as adjusted for increases in the
cost-of-living under IRC section 415(d). 
For limitation years ending before January 1, 2002, the defined
contribution dollar limitation was $30,000, as adjusted from the 1995 limitation
year under IRC section 415(d).


 


(v)           “Defined
contribution fraction.” Defined contribution fraction means a fraction, the
numerator of which is the sum of the annual additions to the Participant’s
account under all the defined contribution plans (whether or not terminated)
maintained by the Employer for the current and all prior limitation years
(including the annual additions attributable to the Participant’s nondeductible
employee contributions to all defined benefit plans, whether or not terminated,
maintained by the Employer, and the annual additions attributable to all
welfare benefit funds, as defined in IRC section 419(e), individual medical
accounts, as defined in IRC section 415(l)(2), maintained by the Employer and
simplified employee pensions maintained by the Employer), and the denominator
of which is the sum of the maximum aggregate amounts for the current and all
prior limitation years of service with the Employer (regardless of whether a
defined contribution plan was maintained by the Employer).  The maximum aggregate amount in any limitation
year is the lesser of 125% of the dollar limitation determined under IRC
sections 415(b) and (d) in effect under IRC section 415(c)(1)(A) or 35% of the
Participant’s compensation for such year.


 


If the Employee
was a Participant as of the end of the first day of the limitation year
beginning after December 31, 1986, in one or more defined contribution plans
maintained by the Employer which were in existence on May 6, 1986, the
numerator of this fraction will be adjusted if the sum of this fraction and the
defined benefit fraction would otherwise exceed 1.0 under the terms of this
Plan.  Under the adjustment, an amount
equal to the product of (i) the excess of the sum of the fractions over 1.0
times (ii) the denominator of this fraction, will be permanently subtracted
from the numerator of this fraction. 
The adjustment is calculated using the fractions as they would be
computed as of the end of the last limitation year beginning before January 1,
1987, and disregarding any changes in the terms and conditions of the Plan made
after May 5, 1986, but using the IRC section 415 limitation applicable to the
first limitation year beginning on or after January 1, 1987.


 


The annual
addition for any limitation year beginning before January 1, 1987, shall not be
computed to treat all employee contributions as annual additions.


 


(vi)          “Employer.”  Employer shall mean the Plan Sponsor that
has adopted this Plan, and all members of a controlled group of corporations
(as defined in IRC section 


 


34

















 


414(b) as modified by IRC section 415(h)),
all commonly controlled trades or businesses (as defined in IRC section 414(c)
as modified by IRC section 415(h), or affiliated service groups (as defined in
IRC section 414(m)) of which the Plan Sponsor is a part, and any other entity
required to be aggregated with the Plan Sponsor pursuant to regulations under
IRC section 414(o).


 


(vii)         “Excess
amount.” Excess amount means the excess of the Participant’s annual additions
for the limitation year over the maximum permissible amount.


 


(viii)        “Highest
average compensation.” Highest average compensation means the average
compensation for the three consecutive years of service with the Employer that
produces the highest average.  A year of
service with the Employer is the 12–consecutive month period used for measuring
Compensation in the second paragraph of Section 2.8.


 


(ix)           “Limitation
year.” The limitation year is the Plan Year, unless the Plan Sponsor elects in
writing a different 12–consecutive month period.  All qualified plans maintained by the Employer must use the same
limitation year.  If the limitation year
is amended to a different 12–consecutive month period, the new limitation year
must begin on a date within the limitation year in which the amendment is made.


 


(x)            “Maximum
permissible amount.” For limitation years ending before January 1, 2002, the
maximum permissible amount is the maximum annual addition that may be
contributed or allocated to a Participant’s account under the Plan for any such
limitation year, which shall not exceed the lesser of:


 


(1)           the
defined contribution dollar limitation, or


 


(2)           25%
of the Participant’s compensation for the limitation year.


 


For limitation
years beginning on or after January 1, 2002, the maximum permissible amount is
the maximum annual addition that may be contributed or allocated to a
Participant’s account under the Plan for any such limitation year, which
maximum shall not exceed, except to the extent permitted under Section 4.1C and
IRC section 414(v) (if applicable), the lesser of:


 


(1)           the
defined contribution dollar limitation; or


 


(2)           100%
of the Participant’s compensation, within the meaning of IRC section 415(c)(3)
and subsection (ii) of this Section 5.4, for the limitation year.


 


The compensation
limit referred to in clause (2) of either of the preceding two paragraphs of
this subsection (x) shall not apply to any contribution for medical benefits
after separation from service (within the meaning of IRC section 401(h) or
section 419A(f)(2)), which is otherwise treated as an annual addition under IRC
section 415(l)(1) or IRC section 419A(d)(2).


 


35

















 


If a short
limitation year is created because of an amendment changing the limitation year
to a different 12—consecutive month period, the maximum permissible amount
under either of the first two paragraphs of this subsection (x) shall not
exceed the defined contribution dollar limitation multiplied by the following
fraction:


 




	
  Number of months in the short limitation year

  
	
  12

  






 


(xi)           “Projected
Annual Benefit.”  The projected annual
benefit means the annual retirement benefit (adjusted to an actuarially
equivalent straight life annuity if such benefit is expressed in a form other
than a straight life annuity or Qualified Joint and Survivor Annuity) to which
the Participant would be entitled under the terms of the plan assuming:


 


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


 


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


 


§ 5.5       Designation
of Beneficiary


 


(a)           Written
Designation of Beneficiary.  Subject to
the following provisions of this Section 5.5, as applicable, any Participant
may from time to time designate, in writing, any person or persons,
contingently or successively, to whom the Trustee will pay the Participant’s vested
Accrued Benefit (including any life insurance proceeds payable to any of the
Participant’s Accounts) in the event of his or her death.  A Participant may also designate the form
and method of payment of his or her vested Accrued Benefit to a Beneficiary
after the Participant’s death.  The Plan
Administrator will prescribe the form for the written designation of
Beneficiary and, upon the Participant’s filing the form with the Plan
Administrator, the form effectively revokes all designations filed prior to
that date by the same Participant.


 


(b)           Spousal Consent
Requirements.  A married Participant’s
Beneficiary designation is not valid unless the Participant’s spouse consents,
in writing, to the Beneficiary designation. 
The spouse’s consent must acknowledge the effect of that consent and a
notary public or an individual representative of the Plan Administrator must
witness that consent.  The spousal
consent requirements of this paragraph do not apply if: (1) the Participant and
his spouse are not married throughout the one year period ending on the date of
the Participant’s death; (2) the Participant’s spouse is the Participant’s sole
primary beneficiary; (3) the Plan Administrator is not able to locate the
Participant’s spouse; (4) the Participant is legally separated or has been
abandoned (within the meaning of State law) and the Participant has a court
order to that effect; or (5) other circumstances exist under which the
Secretary of the Treasury will excuse the consent requirement.  If the Participant’s spouse is legally
incompetent to give consent, the spouse’s legal guardian (even if the guardian
is the Participant) may give consent. 
If the spouse of a Participant becomes locatable or if a Participant
remarries, it shall be the duty of the Participant to bring that fact to the
attention of the Plan Administrator.  If
the Participant so


 


36

















 


notifies the Plan Administrator, the Plan Administrator shall then, if
applicable, proceed to make available to such spouse the consent of spouse
procedures described in this Section 5.5(b).


 


(c)           Revocation Upon Divorce
or Legal Separation.  Effective as of
the date this 2003 Amendment and Restatement is adopted, and thereafter, a
divorce decree, or a decree of legal separation, revokes the Participant’s
designation, if any, of his or her spouse as a Beneficiary under the Plan
unless the decree or a qualified domestic relations order, as defined in IRC
section 414(p) (a “QDRO”), provides otherwise. 
The foregoing revocation provision (if applicable) applies only with
respect to a Participant whose divorce or legal separation becomes effective on
or following the date the Employer executes this Plan.


 


(d)           Incapacity of
Beneficiary.  If, in the opinion of the
Plan Administrator, a Beneficiary is not able to care for his or her affairs
because of a mental condition, physical condition or by reason of age, the Plan
Administrator will apply the provisions of Section 7.13.


 


(e)           No Beneficiary
Designation or Death of Beneficiary.  If
a Participant dies prior to the date this 2003 Amendment and Restatement is
adopted, without having made a Beneficiary designation, the Trustee shall
distribute such benefits in the following order of priority to the deceased
Participant’s: spouse; or estate. 
Effective as of the date this 2003 Amendment and Restatement is adopted,
and thereafter, if a Participant fails to name a Beneficiary in accordance with
this Section 5.5, or if the Beneficiary named by a Participant predeceases the
Participant, then the Trustee will pay the Participant’s vested Accrued Benefit
in accordance with Section 7.5 in the following order of priority to:


 


(i)            The
Participant’s surviving spouse (without regard to the one-year marriage rule of
Section 5.5(b); or, if no surviving spouse, to


 


(ii)           The
Participant’s children (including adopted children), in equal shares by right
of representation (one share for each surviving child and one share for each
child who predeceases the Participant with living descendants); or, if none, to


 


(iii)          The
Participant’s surviving parents, in equal shares; or, if none, to


 


(iv)          The
trustees, if any, named in the Participant’s last will with respect to a trust
not qualifying for the federal estate tax marital deduction; or, if none, to


 


(v)           The
trustees, if any, of a revocable trust to which the Participant’s last will
distributes the residue of his or her estate; or, if none, to


 


(vi)          The legal
representative of the estate of the Participant.


 


(f)            Death of Beneficiary
Prior to Completion of Payment.  If the
Beneficiary does not predecease the Participant, but dies prior to distribution
of the Participant’s entire vested Accrued Benefit, then the Trustee will pay
the Participant’s vested Accrued Benefit in accordance with Section 7.6.


 


37

















 


(g)           Beneficiary
Disclaimer.  Any Beneficiary entitled to
a benefit pursuant to Subsections 5.5(a) or 5.5(e) may refuse to receive (to
the extent permitted under applicable law) all or any portion of such benefit
by filing a written disclaimer with the Plan Administrator at any time prior to
his or her receipt of any of the benefits hereunder and, to that extent, such
Beneficiary shall be treated as having predeceased the Participant; provided,
however, that no Beneficiary shall attempt to anticipate, assign or alienate
any such benefit by means of a disclaimer. 
The Plan Administrator shall direct the Trustee as to any person or
persons to whom the Trustee shall make payment under this Section 5.5.


 


(h)           Assignment or
Alienation.  Except as provided in Code
§ 414(p) relating to QDROs and in Code § 401(a)(13) relating to certain
voluntary, revocable assignments, judgments and settlements, neither a
Participant nor a Beneficiary may anticipate, assign or alienate (either at law
or in equity) any benefit provided under the Plan; and the Trustee shall not
recognize any such anticipation, assignment or alienation.  Furthermore, except as provided by Code §
401(a)(13) or other applicable law, a benefit under the Plan is not subject to
attachment, garnishment, levy, execution or other legal or equitable process.


 


(i)            Information
Available.  Any Participant in the Plan
or any Beneficiary may  examine copies
of the Plan description, latest annual report, any bargaining agreement, this
Plan and Trust, contract or any other instrument under which the Plan was
established or is operated.  The Plan
Administrator will maintain all of the items listed in this Section 5.5 in its
office, or in such other place or places as it may designate from time to time
in order to comply with the regulations issued under ERISA, for examination
during reasonable business hours.  Upon
the written request of a Participant or Beneficiary the Plan Administrator will
furnish the Participant or Beneficiary with a copy of any item listed in this
Section 5.5  The Plan Administrator may
make a reasonable copying charge to the requesting person for the copy so
furnished, to the extent permitted under ERISA.


 


§ 5.6       Use of Electronic or Telephonic
Communications


 


Notwithstanding
any provision in this Plan to the contrary, salary deferral elections and
cancellations or amendments thereto, investment elections, changes or
transfers, loans, withdrawals, decisions and any other decision or election by
a Participant (or Beneficiary) under this Plan may be accomplished by
electronic or telephonic means which are not otherwise prohibited by law and
which are in accordance with procedures and/or systems approved or arranged by
the Plan Administrator or its delegate.


 


ARTICLE VI

VESTING


 


§ 6.1       Certain Accounts 100 Percent Vested


 


The Accrued
Benefit in the Participant Deferral Account, Rollover Account, Qualified
Nonelective Contributions and Qualified Matching Contributions, shall be 100%
vested at all times.


 


38

















 


§ 6.2       Matching
Account Vesting on Death, Retirement, or Total and
Permanent Disability


 


If a Participant’s
employment is terminated for death, for Total and Permanent Disability, or upon
a Participant attaining Normal Retirement Age, 100% of the Accrued Benefit in
his or her Matching Account shall vest in the Participant (or in his or her
Beneficiary, as the case may be) and shall be distributed in accordance with
the provisions of Article VII.


 


§ 6.3       Matching Contributions Account Vesting on
Termination


 


(a)           During the course of a
Participant’s employment, the following percentages of the Accrued Benefit in
the Matching Account of the Participant shall vest in the Participant and
shall, if a Participant’s employment is terminated prior to attaining Early
Retirement Age or Normal Retirement Age except for death or Total and Permanent
Disability, be distributed to or set aside for him or her (or his or her
Beneficiary) in accordance with the provisions of Article VII:


 


	
  Total Service for Vesting

  	
   

  	
  Vested Percentage of Matching
  Account

  	
   

  
	
  less than 2 years

  	
   

  	
  0

  	
  %

  
	
  2 years, but less than 3 years

  	
   

  	
  20

  	
  %

  
	
  3 years, but less than 4 years

  	
   

  	
  40

  	
  %

  
	
  4 years, but less than 5 years

  	
   

  	
  60

  	
  %

  
	
  5 years or more

  	
   

  	
  100

  	
  %

  



 


The Accrued
Benefit in the Employer Matching Accounts of a Participant which is not vested
as above provided and which is forfeited shall be retained by the Trustee for
allocation as a Forfeiture, and be applied to reduce future Employer
Contributions to the Plan or to pay Plan expenses, as determined by the Plan
Sponsor.


 


§ 6.4       Restoration of Forfeitures


 


If a Participant
is less than 100% vested, and either (i) he or she receives a distribution from
the Plan and then the Participant resumes employment with the Employer before
the occurrence of five consecutive One Year Breaks in Service, or (ii) the
Participant receives an in-service distribution, then until such time as there
is a fifth consecutive One Year Break in Service, the Participant’s vested
portion of the balance in his or her account at any time shall be equal to an
amount (“X”) determined by the formula X = P(AB + (R x D)) – (R x D), where “P”
is the vested percentage of the Participant at such time, “AB” is the balance
in the Participant’s account at such time, “D” is the amount of the
distribution not previously repaid by the Participant in accordance with
Section 7.11 (if applicable), and “R” is the ratio of the account balance at
the relevant time to the account balance after distribution.


 


If an Employee who
is zero percent vested is deemed to receive a distribution pursuant to Section
7.2, and that Employee resumes employment covered under this Plan before the
date he or she incurs 5 consecutive One Year Breaks in Service, upon the
reemployment of such Employee, the Employer-derived account balance of the
Employee will be restored to the amount on the date of such deemed
distribution.


 


39

















 


If the
Participant’s forfeited Accrued Benefit is restored pursuant to this Section
6.4, the restoration shall be made first out of Forfeitures, if any, and then
by additional Employer contributions.


 


ARTICLE VII

DISTRIBUTION OF BENEFITS


 


§ 7.1       Hardship Distribution


 


A Participant may
apply in writing or by electronic or telephonic means to the Plan Administrator
for a hardship withdrawal of part or all of his or her net distributable amount
in his or her Rollover Account and Elective Deferrals Account; such withdrawals
coming first from the Participant’s Rollover Account and then his or her
Elective Deferral Account.  The net
distributable amount is equal to the distributable amount, reduced by the
amount of previous distributions on account of hardship.  The distributable amount is equal to the sum
of (i) the Participant’s total Employer contributions as of the date of
distribution, (ii) income allocable to Employer contributions that is credited
to the Participant’s Participant Deferral Account before the end of the last
Plan Year ending before July 1, 1989, (iii) amounts treated as Employer
contributions that are credited to the Participant’s Account before the end of
the last Plan Year ending before July 1, 1989, and (iv) income allocable to
amounts treated as Employer contributions that is credited to the Participant’s
Account before the end of the last Plan Year ending before July 1, 1989.  The Plan Administrator in its discretion and
in accordance with the provisions of this Section 7.1A shall determine what
portion or all of such vested Account Balance is necessary to alleviate the
hardship.  A distribution is on account
of hardship only if the distribution both is made on account of an immediate
and heavy financial need of the Participant as determined in accordance with
Subsection (a) below and is necessary to satisfy such financial need as
determined in accordance with Subsection (b) below.  The determination by the Plan Administrator and of the existence
of an immediate and heavy financial need and of the amount necessary to meet
the need shall be made in a nondiscriminatory and uniform manner.  The determination of hardship by the Plan
Administrator shall be final and binding.


 


(a)           A
distribution will be deemed to be made on account of an immediate and heavy
financial need of the Participant if the distribution is for:


 


(i)            expenses
for medical care described in IRC section 213(d) incurred by the Participant,
the Participant’s spouse, or any dependents of the Participant (as defined in
IRC section 152), or necessary for these persons to obtain medical care
described in IRC section 213(d);


 


(ii)           costs
directly related to the purchase of a principal residence for the Participant
(excluding mortgage payments);


 


(iii)          payment
of tuition and related educational fees for the next 12 months of
post-secondary education for the Participant, the Participant’s spouse,
children, or dependents of the Participant;


 


40

















 


(iv)          payments
necessary to prevent the eviction of the Participant from his or her principal
residence or foreclosure on the mortgage of that residence; or


 


(v)           such
other financial needs as prescribed by the Commissioner of the Internal Revenue
Service.


 


(b)           The
amount of an immediate and heavy financial need may include any amounts
necessary to pay any federal, state, or local income taxes or penalties
reasonably anticipated to result from the distribution.  A distribution generally may be treated as
necessary to satisfy a financial need if the Plan Administrator reasonably
relies upon the Participant’s written representation, unless the Plan
Administrator has actual knowledge to the contrary, that the need cannot
reasonably be relieved —


 


(i)            through
reimbursement or compensation by insurance or otherwise,


 


(ii)           by
liquidation of the Participant’s assets,


 


(iii)          by
cessation of Employer contributions under the Plan, or


 


(iv)          by
other distributions or nontaxable (at the time of the loan) loans from plans
maintained by the Employer or by any other employer, or by borrowing from
commercial sources on reasonable commercial terms in an amount sufficient to
satisfy the need.


 


For purposes of
this Subsection (b), a need cannot reasonably be relieved by one of the actions
listed in (i)–(iv) above if the effect would be to increase the amount of the
need.


 


§ 7.2       Method of Distribution of Accounts


 


(a)           Except
as otherwise provided in Section 7.1 the Participant shall elect to receive
distribution of his or her vested Accrued Benefit in one of the following
forms:


 


•
a lump-sum distribution,


 


•
an installment distribution consisting of approximately equal annual, quarterly
or monthly installments selected by the Participant (subject to the limitations
of Section 7.3).  If distributions are
made in installments, then (i) the installments must be over a period no
greater than ten years or the life expectancy of the Participant or the life
expectancy of the Participant and his or her designated Beneficiary, or (ii)
the amount of the installment to be distributed each year must be at least an
amount equal to the quotient obtained by dividing the Participant’s entire
interest as of the end of the prior Plan Year by the life expectancy of the
Participant or the joint and last survivor expectancy of the Participant and
his or her designated Beneficiary.  If
the Participant’s spouse is not the designated Beneficiary, the method of
distribution selected must assure that at least 50% of the present value of the
amount available for distribution is paid within the life expectancy of the
Participant,


 


41

















 


•
a Cash–Out, or


 


•
a direct rollover as described in Section 7.12.


 


(b)           Upon
notice to the Plan Administrator (in such manner as the Plan Administrator
shall prescribe), a participant who has made an installment election may (i)
change the amount or frequency of the installments, or (ii) elect to receive
all or a portion of the balance of his or her Accounts in a lump sum.  Such a change may be made at any time,
provided, however, that not more than one change described in clause (i), and
not more than one change described in clause (ii) may be made in any Plan Year.


 


(c)           If
an Employee terminates service, and the value of the Employee’s vested Accrued
Benefit derived from Employer and Employee contributions is not greater than
$3,500 for terminations prior to September 1, 1999, or $5,000 for terminations
on or after September 1, 1999, the Employee will receive a distribution of the
value of the entire vested portion of such Accrued Benefit and the nonvested
portion will be treated as a Forfeiture. 
For purposes of this Section, if the value of an Employee’s vested
Accrued Benefit is zero, the Employee shall be deemed to have received a
distribution of such vested Accrued Benefit. 
A Participant’s vested Accrued Benefit shall not include accumulated
deductible employee contributions within the meaning of IRC section 72(o)(5)(B)
for Plan Years beginning prior to January 1, 1989.


 


§ 7.3       Time of Distribution


 


All distributions
required under this Section 7.3 shall be determined and made in accordance with
the proposed regulations under IRC section 401(a)(9), including the minimum
distribution incidental benefit requirement of proposed Treasury Regulation
section 1.401(a)(9)-2.  However, the
Appendix attached to this Plan contains a Model Amendment prepared by the
Internal Revenue Service with respect to final Treasury Regulations under IRC
section 401(a)(9).  Effective as of the
date set forth in the Appendix, it hereby amends this Section 7.3.


 


Except as
otherwise provided in such Appendix, the Plan will apply the minimum
distribution requirements of Code section 401(a)(9) with respect to
distributions made under the Plan for calendar years beginning on or after
January 1, 2002, in accordance with the regulations under section 401(a)(9)
that were proposed on January 17, 2001, notwithstanding any other provision of
the Plan to the contrary.  Except as
otherwise provided in such Appendix, this paragraph shall continue in effect
until the end of the last calendar year beginning before the effective date of
final regulations under section 401(a)(9) or such other date as may be
specified in guidance published by the Internal Revenue Service.


 


(a)           After
the Participant has attained the Normal Retirement Age or has met the
requirements for an In–Service Distribution, has died, or has terminated his or
her employment, then the first installment, the lump-sum payment, Cash–Out or
direct rollover, as the case may be, shall be made within 90 days after the
Plan Year in which such event occurs.  If
the distribution is made prior to the time the Participant attains the later of
age 65 or the Normal Retirement Age under the Plan, the Participant must
consent to the distribution (in the manner


 


42

















 


described in the following two paragraphs of
this Subsection 7.3(a)), unless it is in the form of an involuntary Cash–Out
determined under Section 2.7, as in effect at the time of the
distribution.  If the distribution is
delayed until the Participant incurs a One Year Break in Service or is 100% vested,
it shall be made within 90 days of the occurrence of such event.  If the Participant is 0% vested in his or
her Accrued Benefit, his or her Accrued Benefit will be deemed to have been
distributed to him or her in the form of an involuntary Cash–Out.  However, in all events, unless the
Participant elects otherwise, such distributions shall begin no later than 60
days after the end of the Plan Year in which occurs the latest of the
following:


 


(i)            the
date on which the Participant attains the earlier of age 65 or the Normal
Retirement Age;


 


(ii)           the
tenth anniversary of the year in which the Participant commenced participation
in the Plan; or


 


(iii)          the
Termination Date.


 


The entire
interest of a Participant must be distributed or begin to be distributed no
later than the Participant’s required beginning date.


 


If the value of a
Participant’s vested Accrued Benefit exceeds (or at the time of any prior
distribution exceeded) $3,500 for terminations prior to September 1, 1999, or
$5,000 for  terminations on or after
September 1, 1999, and the vested Accrued Benefit is immediately distributable,
the Participant must consent to any distribution of such vested Accrued
Benefit.


 


Only the
Participant need consent to the distribution of the vested Accrued Benefit that
is immediately distributable.  The
consent of the Participant shall not be required to the extent that a
distribution is required to satisfy IRC section 401(a)(9) or IRC section 415.  In addition, upon termination of this Plan
if the Plan does not offer an annuity option (purchased from a commercial
provider) and if the Employer or any entity within the same controlled group as
the Employer does not maintain another defined contribution plan (other than an
employee stock ownership plan as defined in IRC section 4975(e)(7)), the
Participant’s vested Accrued Benefit will, without the Participant’s consent,
be distributed to the Participant. 
However, if any entity within the same controlled group as the Employer
maintains another defined contribution plan (other than an employee stock
ownership plan as defined in IRC section 4975(e)(7)), then the Participant’s
vested Accrued Benefit will be transferred, without the Participant’s consent,
to the other plan if the Participant does not consent to an immediate
distribution.


 


The Participant’s
vested Accrued Benefit is immediately distributable if any part of the vested
Accrued Benefit could be distributed to the Participant (or surviving spouse)
before the Participant attains or would have attained (if not deceased) the
later of Normal Retirement Age or age 65.


 


(b)           If
distributions are made in installments, then (i) the installments must be over
a period no greater than ten years or the life expectancy of the Participant or
the life expectancy of the Participant and his or her designated Beneficiary,
or (ii) the amount of the installment to be distributed each year must be at
least an amount equal to the quotient obtained by dividing the


 


43

















 


Participant’s entire interest as of the end
of the prior Plan Year by the life expectancy of the Participant or the joint
and last survivor expectancy of the Participant and his or her designated
Beneficiary.  If the Participant’s spouse
is not the designated Beneficiary, the method of distribution selected must
assure that at least 50% of the present value of the amount available for
distribution is paid within the life expectancy of the Participant.


 


(c)           If
the Participant dies after distributions to him or her have begun but before
his or her entire vested Accrued Benefit has been distributed to him or her,
the remaining portion of his or her vested Accrued Benefit shall be distributed
from the Plan at least as rapidly as under the method of distribution
previously established for him or her.


 


(d)           If
the Participant dies before distribution of his or her interest commences, then
distributions of the Participant’s remaining vested Accrued Benefit must be
completed by the end of the fifth calendar year following the year of his or
her death.  However, installment
distributions to a designated Beneficiary which begin not later than the end of
the calendar year following the death of the Participant shall be treated as
complying with this 5 year distribution requirement (even though the
installment payments are not completed within 5 years of the Participant’s
death) if the distributions are made at a rate which is not longer than that
calculated (in the manner described in Subsection (b) of this Section 7.3) to
provide payment of all the Participant’s vested Accrued Benefit during the
anticipated life expectancy of the designated Beneficiary.  Provided that if the designated Beneficiary
is the surviving spouse of the deceased Participant, the distributions can
begin as long after the Participant’s death as the date on which the deceased
Participant would have attained the age of 70–1/2.  If the surviving spouse dies after the Participant, but before
payments to such spouse begin, the provisions of this Subsection (d) shall be
applied as if the surviving spouse were the Participant.


 


If the Participant
has not made an election pursuant to this Subsection (d) by the time of his or
her death, the Participant’s designated Beneficiary must elect the method of
distribution no later than the earlier of (1) December 31 of the calendar year
in which distributions would be required to begin under this Subsection, or (2)
December 31 of the calendar year which contains the fifth anniversary of the
date of death of the Participant.  If
the Participant has no designated Beneficiary, or if the designated Beneficiary
does not elect a method of distribution, distribution of the Participant’s
entire interest must be completed by December 31 of the calendar year
containing the fifth anniversary of the Participant’s death.


 


(e)           For
purposes of this Section 7.3, any amount paid to a child of a Participant will
be treated as if it had been paid to the surviving spouse of the Participant if
such remaining amount becomes payable to the surviving spouse when the child
reaches the age of majority.  Any
amounts payable or distributable to a Beneficiary who is a minor shall be paid
to such minor’s parent or legal guardian for the benefit of said minor, and the
Plan Administrator shall be fully discharged from its obligations upon making
payment in such manner.


 


(f)            For
the purposes of Section 7.3, distribution of a Participant’s interest is
considered to begin on the Participant’s required beginning date (or, if
Subsection 7.3(d) above is applicable, the date distribution is required to
begin to the surviving spouse pursuant to Subsection 7.3(d)).


 


44

















 


(g)           For
purposes of this Section 7.3, the following words and terms shall have the
meanings indicated:


 


(i)            “Applicable
life expectancy.” The life expectancy (or joint and last survivor expectancy)
calculated using the attained age of the Participant (or designated
Beneficiary) as of the Participant’s (or designated Beneficiary’s) birthday in
the applicable calendar year reduced by one for each calendar year which has
elapsed since the date life expectancy was first calculated.  If life expectancy is being recalculated,
the applicable life expectancy shall be the life expectancy as so
recalculated.  The applicable calendar year
shall be the first distribution calendar year, and if life expectancy is being
recalculated such succeeding calendar year.


 


(ii)           “Designated
Beneficiary.” The individual who is designated as the Beneficiary under the
Plan in accordance with Section 5.5 and IRC section 401(a)(9) and the proposed
regulations thereunder.


 


(iii)          “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 pursuant to Subsection 7.3(d) above.


 


(iv)          “Life
expectancy.” Life expectancy and joint and last survivor expectancy are
computed by use of the expected return multiples in Tables V and VI of Treasury
Regulations section 1.72–9, or, in the case of payments under a contract issued
by an insurance company, by use of the life expectancy tables of the insurance
company.


 


Unless otherwise
elected by the Participant (or Participant’s spouse, in the case of
distributions described in Subsection 7.3(d)) by the time distributions are
required to begin, life expectancies shall be recalculated annually.  Such election shall be irrevocable as to the
Participant (or spouse) and shall apply to all subsequent years.  The life expectancy of a nonspouse
Beneficiary may not be recalculated.


 


(v)           “Participant’s
benefit.”


 


(1)           The
vested Accrued Benefit 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 or forfeitures allocated to the
vested Accrued Benefit 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.


 


(2)           For
purposes of Subparagraph (1) above, if any portion of the minimum distribution
for the first distribution calendar year is made in the second distribution
calendar year on or before the required beginning date, the amount of the
minimum distribution made in the second distribution calendar year shall be


 


45

















 


treated as if it had been made in the
immediately preceding distribution calendar year.


 


(vi)          “Required
beginning date.”


 


(1)           For
calendar years beginning after 1996, the required beginning date of a
Participant is the later of (i) the first day of April of the calendar year
following the calendar year in which the Participant attains age 70–1/2, or
(ii) the calendar year in which the Participant retires if the Participant is
not a 5–percent owner of the Employer; provided that a Participant may elect to
begin taking a distribution of his or her benefit on the date specified in
clause (i) or to defer such distribution to the date specified in clause (ii).  The preceding sentence shall apply only to
Participants who attain age 70–1/2 in or after the later of the first calendar
year after December 31, 1998 or the date of adoption of this Subparagraph
7.3(g)(vi)(1); the preceding sentence shall not apply to an amendment to an
existing Plan if the amendment is adopted on or after the first day of the Plan
Year which begins after December 31, 1999; or, if later, on the last day of the
remedial amendment period that applies to the Plan for changes under the SBJPA
‘96.


 


For calendar years beginning on or before 1996 the required beginning
date of a Participant is the first day of April of the calendar year following
the calendar year in which the Participant attains age 70–1/2.


 


(2)           A
Participant is treated as a 5–percent owner for purposes of this Section if
such Participant is a 5–percent owner as defined in IRC section 416(i)
(determined in accordance with IRC section 416 but without regard to whether
the Plan is top-heavy) at any time during the Plan Year in which such owner
attains age 66–1/2 or any subsequent Plan Year.


 


(3)           Once
distributions have begun to a 5–percent owner under this Section, they must
continue to be distributed, even if the Participant ceases to be a 5–percent
owner in a subsequent year.


 


§ 7.4       Non-segregation
if Installment Distribution


 


In the event the
Plan Administrator does not segregate the Participant’s Accounts, the Accounts
shall continue to be treated, without interruption, in the same manner as when
the Participant was an Employee, in which case the installment distributions
shall be adjusted upward or downward to reflect appreciation or depreciation,
or income or loss in the Accrued Benefit.


 


§ 7.5       Distribution After Death of Participant


 


In the event of
the death of a Participant after installment payments have begun, but prior to
completion of such payments, the full amount of such unpaid benefits shall
continue to be paid in the form of the previously established installments
except that the Beneficiary may request that the remaining Accrued Benefit be
paid in a lump sum.


 


46

















 


In the event of
the death of the Participant prior to the start of any payment of his or her
Accrued Benefit, distributions shall be made in the form and at the time or
times selected by the Beneficiary pursuant to Sections 7.1, 7.2 and 7.3.


 


§ 7.6       Distribution
After Death of Beneficiary


 


In the event of
the death of a Beneficiary (or a contingent Beneficiary, if applicable) prior
to the completion of payment of the vested Accrued Benefit due the Beneficiary
from the Plan, the full amount of the remaining vested Accrued Benefit shall at
once vest in and become the property of the estate of said Beneficiary;
provided, however, that effective as of the date this 2003 Amendment and
Restatement is adopted, and thereafter, the Trustee will pay such remaining
vested Accrued Benefit to the Beneficiary’s estate unless: (1) the
Participant’s Beneficiary designation provides otherwise; or (2) the
Beneficiary has properly designated a beneficiary.  A Beneficiary may only designate a beneficiary for the
Participant’s vested Accrued Benefit remaining at the Beneficiary’s death, if
the Participant has not previously designated a successive contingent
beneficiary and the Beneficiary’s designation otherwise complies with the Plan
terms.  The Plan Administrator will
direct the Trustee as to the method and to whom the Trustee will make payment
under this Section 7.6.


 


§ 7.7       [Reserved]


 


Effective as of
October 1, 2002, the former Section 7.7 is hereby revoked because it
substantially duplicates Section 7.12.


 


§ 7.8       Suspense Account for Terminated
Participants


 


If a Participant
has terminated his or her employment but his or her Matching Account is not
100% vested and he or she has not had 5 consecutive One Year Breaks in Service
subsequent to his or her termination, all funds in his or her Matching Account
shall be held in suspense until the happening of the soonest of the following:
(i) the Participant returning to employment with the Employer, or (ii) a
Cash–Out of the Participant’s vested interest, or (iii) the Participant
attaining Normal Retirement Age.  At
such time the Participant’s Employer Account shall cease to be held in
suspense.  If a Participant has returned
to employment prior to incurring 5 consecutive One Year Breaks in Service, his
or her Matching Account which has been held in suspense shall be restored to
his or her credit, less any distribution which is not repaid in accordance with
Section 7.9; if his or her Matching Account is no longer held in suspense at
such time, the amounts required to restore the balance to his or her credit
shall be provided through Forfeitures and Employer contributions, in that
order.  If a Cash–Out of the
Participant’s vested interest occurs, the non-vested portion of the Matching
Account held in suspense will be forfeited and reallocated in accordance with
Section 4.2 for the Plan Year in which such Forfeiture occurs; the vested
portion shall be distributed in accordance with the provisions of Article
VII.  In the case of a Participant
attaining Normal Retirement Age while his or her Matching Account is being held
in suspense, the entire amount will be distributed in accordance with the
provisions of Article VII.


 


Such suspense
account shall share in any appreciation, depreciation, or net income or loss as
if it were not in suspense, except that an account which is in suspense shall
have no


 


47

















 


Forfeitures allocated to it for a Plan Year in which the Employee does
not have a Year of Service for Accrual of Benefits.


 


Notwithstanding
anything contained in this Section 7.8 to the contrary, upon the payment of a
Participant’s vested Accrued Benefit through a Cash–Out, the non-vested portion
of such Participant’s Accrued Benefit shall be immediately forfeited and shall
be reallocated for the Plan Year in accordance with Section 4.2.


 


If an Employee
terminates service, and elects, in accordance with the requirements of
Subsection 7.3(a), to receive the value of the Employee’s vested Accrued
Benefit, the nonvested portion will be treated as a Forfeiture.  If the Employee elects to have distributed
less than the entire vested portion of the Accrued Benefit derived from
Employer contributions, the part of the nonvested portion that will be treated
as a Forfeiture (which will be reallocated for the Plan Year in accordance with
Section 4.2) is the total nonvested portion multiplied by a fraction, the
numerator of which is the amount of the distribution attributable to Employer
contributions and the denominator of which is the total value of the vested
Employer-derived Accrued Benefit.


 


§ 7.9       Unable to Locate Participant or
Beneficiary


 


If, after
reasonable efforts of the Plan Administrator to locate a Participant or his or
her Beneficiary, including sending a registered letter, returned receipt
requested to the last known address, the Plan Administrator is unable to locate
the Participant or Beneficiary, then the amounts distributable to each
Participant or his or her Beneficiary shall, pursuant to applicable state or
federal laws, be treated as a Forfeiture under the Plan.  When a Participant or Beneficiary is located
subsequent to a Forfeiture, pursuant to applicable state or federal laws such
benefits shall be reinstated by the Plan Administrator, and shall not count as
an annual addition under IRC § 415.  If
the Plan is joined as a party to any escheat proceeding involving a forfeited
amount, the Plan shall comply with the final judgment as if it were a claim
filed by the former Participant or Beneficiary and shall pay in accordance with
the judgment.


 


§ 7.10     Repayment of Cash–Out


 


If an Employee
receives a distribution pursuant to Section 7.2 and the Employee resumes
employment covered under this Plan, the Employee’s Employer-derived Accrued
Benefit will be restored to the amount on the date of distribution if the
Employee repays to the Plan the full amount of the distribution attributable to
Employer contributions before the earlier of 5 years after the first date on
which the participant is subsequently re-employed by the Employer, or the date
the participant incurs 5 consecutive One Year Breaks in Service following the
date of the distribution.  If an
Employee who is zero percent vested is deemed to receive a distribution
pursuant to Section 7.1, and that Employee resumes employment covered under
this Plan before the date he or she incurs 5 consecutive One Year Breaks in
Service, upon the reemployment of such Employee, the Employer-derived Accrued
Benefit of the Employee will be restored to the amount on the date of such
deemed distribution.  The permissible
sources of restoration of the forfeited portion of a Cash–Out distribution are
Forfeitures and Employer contributions.


 


48

















 


§ 7.11     Qualified Domestic Relations Orders


 


Notwithstanding
any other provisions of Article VII, any Accrued Benefit of a Participant may
be apportioned between the Participant and the alternate payee (as defined in
IRC section 414(p)(8)) either through separate Accounts or by providing the
alternate payee a percentage of the Participant’s accounts.  The Plan Administrator may direct
distributions to an alternate payee pursuant to a qualified domestic relations
order as defined in IRC section 414(p)(1)(A) prior to the date on which the
Participant attains the earliest retirement age, provided that the Plan
Administrator has properly notified the affected Participant and each alternate
payee of the order and has determined that the order is a qualified domestic
relations order as defined in IRC section 414(p)(1)(A).  The alternate payee shall be paid his or her
separate Account or his or her percentage of the Participant’s accounts,
computed as of the valuation date described in Section 5.3, in a lump sum
payment notwithstanding the value of such lump sum payment unless the domestic
relations order specifies a different manner of payment permitted by the Plan;
the alternate payee shall not be required to consent to such lump sum payment. The
Plan Administrator shall adopt reasonable procedures to determine the qualified
status of domestic relations orders and to administer the distributions
thereunder.


 


§ 7.12     Direct
Rollover


 


Notwithstanding
any other provision of the Plan, the Plan Administrator shall advise any
distributee entitled to receive an eligible rollover distribution, at the same
time as the notice required to be given pursuant to Article VII (or such other
time as is permitted by law) of his or her right to elect a direct rollover to
an eligible retirement plan, pursuant to the provisions of this Section.  To elect a direct rollover, the distributee
must request in writing or by electronic or telephonic means to the Plan
Administrator that all or a specified portion of the eligible rollover
distribution be transferred directly to an eligible retirement plan.  If a distribution will be made on behalf of
the distributee in more than one year, the notice specified in the first
sentence of this Section must be given to the distributee in each year in which
there is an eligible rollover distribution, and the distributee must file a new
election with the Plan Administrator if he or she wishes to have the eligible
rollover distribution transferred directly to an eligible retirement plan.


 


For purposes of
this Section 7.12, the following definitions shall apply:


 


(a)           A
“direct rollover” is a payment by the Plan to the eligible retirement plan
specified by the distributee.


 


(b)           A
“distributee” includes an Employee or former Employee.  In addition, the Employee’s or former
Employee’s surviving spouse and the Employee’s (or former Employee’s) spouse or
former spouse who is the alternate payee under a qualified domestic relations
order, as defined in IRC section 414(p), are distributees with regard to the
interest of the spouse or former spouse.


 


(c)           For
Plan Years ending before January 1, 2002, an “eligible retirement plan” is a
retirement plan which meets the requirements of IRC section 401(a), an annuity
described in IRC section 403(a), an individual retirement account described in
IRC section 408(a), or an individual retirement annuity (other than an
endowment contract) described in IRC section 408(b), the


 


49

















 


terms of which permit the acceptance of a
direct rollover of the distributee’s eligible rollover distribution; provided,
however, that in the case of an eligible rollover distribution to the surviving
spouse, an eligible retirement plan includes only an individual retirement
account or an individual retirement annuity.


 


For Plan Years
beginning on or after January 1, 2002, (1) an “eligible retirement plan” shall
also mean an annuity contract described in IRC section 403(b) and an eligible
plan under IRC section 457(b) that is maintained by a state, political
subdivision of a state, or any agency or instrumentality of a state or
political subdivision of a state and which agrees to separately account for
amounts transferred into such plan from this Plan; and (2) in the case of a
distribution to a surviving spouse, or to a spouse or former spouse who is the
alternate payee under a qualified domestic relation order, as defined in IRC
section 414(p), the entire definition of “eligible retirement plan” shall apply
without regard to the limitation set forth in the last clause of the preceding
paragraph.


 


The Plan
Administrator may establish reasonable procedures for ascertaining that the
eligible retirement plan meets the preceding requirements, as applicable.


 


(d)           An
“eligible rollover distribution” means any distribution from this Plan of all
or any portion of the balance to the credit of the distributee, except an
eligible rollover distribution does not include:


 


(i)            any
distribution that is one of a series of substantially equal periodic payments (not
less frequently than annually) made for the life (or life expectancy) of the
distributee or the joint lives (or joint life expectancies) of the distributee
and the distributee’s designated beneficiary (if applicable), or for a
specified period of ten years or more;


 


(ii)           any
minimum distribution required under IRC section 401(a)(9) and Section 7.3 (each
relating to the minimum distribution requirements);


 


(iii)          The
portion of any distribution that is not includible in gross income (determined
without regard to the exclusion for net unrealized appreciation with respect to
Employer securities described in section 402(e)(4) of the IRC); or


 


(iv)          any
hardship distribution made after December 31, 1999, from a Participant’s
Elective Deferral Account (except where the Participant also satisfies a
non-hardship In-Service Distribution event described in Section 2.20).  For purposes of the direct rollover
provisions in this Section 7.12, any amount that is distributed on account of
hardship shall not be an eligible rollover distribution; and the distributee
may not elect to have any portion of such a distribution paid directly to an
eligible retirement plan.


 


§ 7.13     Participant or Beneficiary Incapacitated


 


If, in the opinion
of the Plan Administrator or of the Trustee, a Participant or Beneficiary
entitled to a Plan distribution is not able to care for his or her affairs
because of a mental condition, a physical condition, or by reason of age, then
at the direction of the Plan Administrator, the Trustee may make the
distribution to the Participant’s or Beneficiary’s


 


50

















 


guardian, conservator, trustee, custodian (including under a Uniform
Transfers or Gifts to Minors Act) or to his or her attorney-in-fact or other
legal representative, upon receiving evidence of such status that is
satisfactory to the Plan Administrator and to the Trustee. The Plan
Administrator and the Trustee do not have any liability with respect to
payments so made; and neither the Plan Administrator nor the Trustee has any
duty to make inquiry as to the competence of any person entitled to receive
payments under the Plan.


 


ARTICLE VIII

DUTIES AND AUTHORITY OF PLAN ADMINISTRATOR


 


§ 8.1       Appointment


 


This Plan shall be
administered by a Administrator who shall, unless it is the Plan Sponsor,
signify in writing its acceptance of such appointment in writing.  Any Plan Administrator other than the Plan
Sponsor may resign upon giving written notice to the Plan Sponsor.  The Plan Administrator shall hold office at
the pleasure of the board of directors of the Plan Sponsor.


 


§ 8.2       No Discrimination


 


The Plan
Administrator shall not take any action nor direct the Trustee to take any
action that would result in benefiting one Participant or group of Participants
at the expense of another, or discriminating between Participants similarly
situated, or applying different rules to substantially similar sets of facts.


 


§ 8.3       Payment of
Funds To Trustee


 


The Plan
Administrator shall cause all funds representing contributions to the Plan by
the Employer and the Participants to be deposited with the Trustee in a timely
manner as required by regulations of the Department of Labor and the Internal
Revenue Service.


 


§ 8.4       Powers


 


Except as
otherwise provided in the Plan, the Plan Administrator shall have control of
the administration of the Plan, with all powers necessary to enable it to carry
out its duties in that respect.  Not in
limitation, but in amplification of the foregoing, the Plan Administrator shall
have the power, in its sole discretion, to interpret or construe the Plan and
to determine all questions that may arise hereunder as to the status and rights
of Participants and others hereunder. 
The Plan Administrator shall have the right, exercisable at any time by
delivery to the Trustee of an instrument in writing, to instruct or direct the
Trustee with respect to the investment of the Trust Fund.  The Plan Administrator may inspect the
records of the Employer or Trustee whenever such inspection may be reasonably
necessary in order to determine any fact pertinent to the performance of the
duties of the Plan Administrator.  The
Plan Administrator, however, shall not be required to make such inspection, but
may, in good faith, rely on any statement of the Trustee or Employer or any of
their respective officers or employees.


 


51

















 


§ 8.5       Delegation
of Duties


 


The Plan
Administrator shall also have the authority and discretion to engage an
Administrative Delegate who shall perform, without discretionary authority or
control, administrative functions within the frame work of the policies,
interpretations, rules, practices and procedures made by the Plan Administrator
or other Plan Fiduciary.  Any action
made or taken by the Administrative Delegate may be appealed by an affected
Participant to the Plan Administrator in accordance with the claims review
procedures provided in the Plan.  Any
decisions which call for interpretations of Plan provisions not previously made
by the Plan Administrator shall be made by only by the Plan Administrator.  The Administrative Delegate shall not be
considered a fiduciary with respect to the services it provides.


 


§ 8.6       Establishing Unit Values For Investment
Funds


 


For administrative
purposes, the Plan Administrator may establish, or direct the Trustee to
establish unit values for one or more investment funds (or any portion thereof)
and maintain the accounts setting forth each Participant’s interest in such
investment fund (or any portion thereof) in terms of such units, all in
accordance with such rules and procedures as the Plan Administrator shall deem
to be fair, equitable and administratively practicable.  In the event that unit accounting is thus
established for any investment fund (or any portion thereof) the value of a
Participant’s interest in that investment fund (or any portion thereof) at any
time shall be an amount equal to the then value of a unit in each investment
fund (or any portion thereof) multiplied by the number of units then credited
to the Participant.


 


§ 8.7       Filing
Reports


 


The Plan
Administrator shall furnish, or shall see that the Employer furnishes, a
summary of this Plan to all Employees, as required by applicable Federal
law.  The Plan Administrator shall
furnish to the Trustee the names of all Employees who become eligible as
Participants, and the Plan Administrator shall notify each Employee of his or
her eligibility.


 


§ 8.8       Records and Information


 


The Plan
Administrator shall keep a complete record of all its proceedings and all data
necessary for the administration of the Plan.


 


§ 8.9       Information to Participants


 


The Plan
Administrator shall direct the maintenance of separate accounts of the
Participants.  It shall give each
Participant, at least once every year, information as to the balance of his or
her Accounts and under the Plan.


 


§ 8.10     Payment of Administrative Expenses


 


The Trustee,
investment manager and record-keeper of the Plan (“Service Providers”) will
receive reasonable compensation as may be agreed upon from time to time between
the Plan Sponsor (or its delegate) and such Service Providers.  To the extent permitted by law, such
compensation shall be paid from the Trust Fund unless paid by the Company.


 


52

















 


§ 8.11     Review of Participant’s Claims


 


In case the claim
of any Participant or Beneficiary for benefits under the Plan is denied, the
Plan Administrator shall provide within 90 days of receipt of such written
claim adequate notice in writing to such claimant, setting forth the specific
reasons for such denial.  The notice
shall be written in a manner calculated to be understood by the claimant.  The Plan Administrator shall afford a
Participant or Beneficiary, whose claim for benefits has been denied, 60 days
from the date notice of such denial is delivered or mailed in which to appeal
the decision in writing to the Plan Administrator.  If the Participant or Beneficiary appeals the decision in writing
within 60 days, the Plan Administrator shall review the written comments and
any submissions of the Participant or Beneficiary and render its decision
regarding the appeal within 60 days of receipt of such appeal.


 


ARTICLE IX

MODIFICATIONS FOR TOP–HEAVY PLANS


 


§ 9.1       Application of Article


 


The provisions in
this Article IX shall take precedence over any other provisions in the Plan
with which they conflict.


 


§ 9.2       Definitions


 


For purposes of
this Article IX, the following words and terms shall have the meanings
indicated:


 


(a)           “Key
employee.”  Any Employee or former
Employee (including any deceased Employee) who at any time during the calendar
year that includes the determination date is an officer of the Employer having
annual compensation greater than $130,000 (as adjusted under Section 416(l)(1)
of the Code for Plan years beginning after December 31, 2002), a 5% owner of
the Employer, or a 1% owner of the Employer having annual compensation of more
than $150,000.  For this purpose, annual
compensation means Compensation as defined in Section 5.4(ii), which for
Plan Years beginning after December 31, 1997, includes Elective
Contributions.  The determination of who
is a key employee will be made in accordance with Section 416(l)(1) of the Code
and the applicable regulations and other guidance of general applicability
issued thereunder.


 


(b)           “Top-heavy
plan.” For any Plan Year beginning after December 31, 1983, this Plan is
top-heavy if any of the following conditions exists:


 


(i)            If
the top-heavy ratio for this Plan exceeds 60% and this Plan is not part of any
required aggregation group or permissive aggregation group of plans.


 


(ii)           If
this Plan is a part of a required aggregation group of plans but not part of a
permissive aggregation group and the top-heavy ratio for the group of plans
exceeds 60%.


 


53

















 


(iii)          If
this Plan is a part of a required aggregation group and part of a permissive
aggregation group of plans and the top-heavy ratio for the permissive
aggregation group exceeds 60%.


 


(c)           “Top-heavy
ratio.”


 


(i)            If
the Employer maintains one or more defined contribution plans (including any
simplified employee pension plan) and the Employer has not maintained any
defined benefit plan which during the five-year period ending on the
determination date(s) has or has had accrued benefits, the top-heavy ratio for
this Plan alone or for the required or permissive aggregation group as
appropriate is a fraction, the numerator of which is the sum of the account
balances of all key employees as of the determination date(s) (including any
part of any account balance distributed in the five-year period ending on the
determination date(s)), and the denominator of which is the sum of all account
balances (including any part of any account balance distributed in the
five-year period ending on the determination date(s)), both computed in
accordance with IRC section 416 and the regulations thereunder.  Both the numerator and denominator of the
top-heavy ratio are increased to reflect any contribution not actually made as
of the determination date, but which is required to be taken into account on
that date under IRC section 416 and the regulations thereunder.


 


(ii)           If
the Employer maintains one or more defined contribution plans (including any
simplified employee pension plan) and the Employer maintains or has maintained
one or more defined benefit plans which during the five-year period ending on
the determination date(s) has or has had any accrued benefits, the top-heavy
ratio for any required or permissive aggregation group as appropriate is a
fraction, the numerator of which is the sum of all account balances under the
aggregated defined contribution plan or plans for all key employees, determined
in accordance with Paragraph (i) above, and the present value of accrued
benefits under the aggregated defined benefit plan or plans for all key
employees as of the determination date(s), and the denominator of which is the
sum of the account balances under the aggregated defined contribution plan or
plans for all Participants, determined in accordance with Paragraph (i) above,
and the present value of accrued benefits under the defined benefit plan or
plans for all Participants as of the determination date(s), all determined in
accordance with IRC section 416 and the regulations thereunder.  The accrued benefits under a defined benefit
plan in both the numerator and denominator of the top-heavy ratio are increased
for any distribution of an accrued benefit made in the five-year period ending
on the determination date.


 


(iii)          For
purposes of Paragraphs (i) and (ii) above the value of account balances and the
present value of accrued benefits will be determined as follows.  The present value of accrued benefits and
the amounts of account balances of an Employee as of the determination date shall
be increased by the distribution made with respect to the Employee under the
Plan and any plan aggregated with the Plan under Section 416(g)(2) of the Code
during the one-year period ending on the determination date.  The preceding sentence will apply to
distributions under a terminated plan, which, had not been terminated, would
have been aggregated with the Plan under Section 416(g)(2)(a) of the


 


54

















 


Code. 
In the case of a distribution made for a reason other than separation
from service, death, or disability, this provision shall be applied by
substituting five-year period for one-year period.  The accrued benefits and accounts of any individual who has not
performed services for the Employer during the one-year period ending on the
determination date shall not be taken into account.


 


The accrued benefit of a Participant other than a key employee shall be
determined under (a) the method, if any, that uniformly applies for accrual
purposes under all defined benefit plans maintained by the Employer, or (b) if
there is no such method, as if such benefit accrued not more rapidly than the
slowest accrual rate permitted under the fractional rule of IRC section
411(b)(1)(C).


 


(d)           “Permissive
aggregation group.” The required aggregation group of plans plus any other plan
or plans of the Employer which, when considered as a group with the required
aggregation group, would continue to satisfy the requirements of IRC sections
401(a)(4) and 410.


 


(e)           “Required
aggregation group.” A group consisting of (i) each qualified plan of the
Employer in which at least one key employee participated at any time during the
determination period (regardless of whether the plan has terminated), and (ii)
any other qualified plan of the Employer which enables a plan described in (i)
to meet the requirements of IRC sections 401(a)(4) or 410.


 


(f)            “Determination
date.” The date, for any Plan Year subsequent to the first Plan Year, which is
the last day of the preceding Plan Year; and in the case of the first year of
the Plan, the last day of that year. 
For purposes of this Article IX, accrued benefits under this Plan or any
other qualified plan shall be valued either as of the determination date or, if
any such plan does not value its assets and liabilities as of that date, as of
such plan’s most recent valuation date (the annual valuation date in the case
of a defined benefit plan) within the 12-month period ending on the
determination date.


 


(g)           “Non-key
employee.” Any Employee who is not a key employee.


 


§ 9.3       Accelerated
Vesting


 


Since the schedule
in Section 6.3 also complies with the top-heavy vesting rules, it shall
continue to apply for any Plan Year in which this Plan is deemed to be a
top-heavy plan.


 


§ 9.4       Minimum Contributions


 


For any Plan Year
in which this Plan is determined to be a top-heavy plan, a minimum Employer
contribution shall be made pursuant to this Plan to the account of each non-key
employee Participant (except those who are separated from service with the
Employer at the end of the Plan Year).


 


For the purposes
of this Section 9.4, the minimum Employer contribution provided to each non-key
employee Participant (except those who are separated from service with the
Employer at the end of the Plan Year) shall be equal to 3% of such non-key
employee’s annual


 


55

















 


compensation.  If, however, the
Employer contribution and any Employee deferrals, under this and any other
defined contribution plan required to be included in the permissive or required
aggregation group and maintained by the Employer, for any key employee for such
Plan Year is less than 3% of such key employee’s total annual compensation not
in excess of $200,000 (for Plan Years beginning before 1989), then the Employer
contribution to each Participant (except those who are separated from service
with the Employer at the end of the Plan Year) shall equal the amount which
results from multiplying such Participant’s annual compensation times the
highest contribution rate of any key employee (taking into account both
Employer contributions and Employee deferrals) covered by the Plan.  Employer matching contributions shall be
taken into account for purposes of satisfying the minimum contribution
requirements of Section 416(c)(2) of the Code and the Plan.  Employer matching contributions that are
used to satisfy the minimum contribution requirements shall be treated as
matching contributions for purposes of the Average Actual Contribution
Percentage test and other requirements of Section 401(m) of the Code.


 


The minimum
allocation required (to the extent required to be nonforfeitable under IRC
section 416(b)) may not be forfeited under IRC section 411(a)(3)(B) or
411(a)(3)(D).


 


§ 9.5       Limitation
on Compensation Taken into Account Under Plan


 


For any Plan Year
beginning before January 1, 1989, in which this Plan is deemed to be a
top-heavy plan the definition of annual compensation contained in Subsection
9.2(a) shall exclude amounts in excess of $200,000.  For any Plan Year beginning on or after January 1, 1989 annual
compensation shall exclude amounts in excess of the limitation under IRC
section 401(a)(17) (i.e., $150,000 adjusted for the cost of living).


 


§ 9.6       Modification of Defined Benefit and
Defined Contribution Fraction


 


This Section 9.6
applies only to Plan Years beginning before January 1, 2000.


 


For any Plan Year
in which the Plan is deemed to be a top-heavy plan, the denominators of the
defined benefit fraction described in Subsection 5.4(d)(iii) and the defined
contribution fraction described in Subsection 5.4(d)(v) shall be deemed to be
modified by substituting 100% for 125%. 
Notwithstanding the above, if this Plan would not be deemed to be a
top-heavy plan if 90% were substituted for 60% in Subsection 9.2(b) and if the
Employer provides benefits and/or makes contributions to the Employer Accounts
of non-key employees who participate in defined benefit and/or defined
contribution plans maintained by the Employer, in amounts at least equal to
that which would be required by Section 9.4 after substituting 4% for 3% in the
second paragraph thereof, and by substituting 3% for 2% in the third paragraph
thereof, then the reduction in the defined benefit fraction and the defined
contribution fraction as set forth in the preceding sentence shall not be made.


 


For any Plan Year
in which the Plan is deemed to be a top-heavy plan, for any Employee who is
covered by both a defined contribution and a defined benefit plan maintained by
the Employer, if the top-heavy minimum is provided under a defined contribution
plan, the minimum non-elective contribution percentage is increased to 7.5% of
annual compensation.


 


56

















 


ARTICLE X

AMENDMENT AND TERMINATION


 


§ 10.1     Rights to Suspend or Terminate Plan


 


It is the present
intention of the Plan Sponsor to maintain this Plan throughout its corporate
existence.  Nevertheless, the Plan
Sponsor reserves the right, at any time, to discontinue or terminate the Plan,
to terminate the Employer’s liability to make further contributions to this
Plan, and to suspend contributions for a fixed or indeterminate period of
time.  In any event, the liability of
the Employer to make contributions to this Plan shall automatically terminate
upon its legal dissolution or termination, upon its adjudication as a bankrupt,
upon the making of a general assignment for the benefit of creditors, or upon
its merger or consolidation with any other corporation or corporations in which
the Employer is not the surviving entity.


 


§ 10.2     Successor Corporation


 


In the event of
the termination of the liability of the Employer to make further contributions
to this Plan, the Employer’s liability may be assumed by any other corporation
or organization which employs a substantial number of the Participants of this
Plan.  Such assumption of liability
shall be expressed in an agreement between such other corporation or
organization and the Trustee under which such other corporation or organization
assumes the liabilities of this Trust with respect to the Participants employed
by it.


 


§ 10.3     Amendment


 


To provide for
contingencies that may require the clarification, modification, or amendment of
this Plan, the Plan Sponsor reserves the right to amend this Plan at any time,
by action of its Board of Directors or any other person or persons to whom the
Board of Directors has delegated such power and authority; and the Plan Sponsor
has the power and authority to make any such amendments on behalf of the other
Affiliated Employers that have adopted this Plan.


 


No amendment to
the Plan shall be effective to the extent that it has the effect of decreasing
a Participant’s Accrued Benefit. 
Notwithstanding the preceding sentence, a Participant’s Accrued Benefit
may be reduced to the extent permitted under IRC section 412(c)(8).  For purposes of this paragraph, a Plan
amendment which has the effect of decreasing a Participant’s Accrued Benefit or
eliminating an optional form of benefit, with respect to benefits attributable
to service before the amendment shall be treated as reducing an Accrued
Benefit.  Furthermore, if the vesting
schedule of the Plan is amended, in the case of an Employee who is a
Participant as of the later of the date such amendment is adopted or the date
it becomes effective, the non-forfeitable percentage (determined as of such
date) of such Employee’s Employer-derived Accrued Benefit will not be less than
the percentage computed under the Plan without regard to such amendment.


 


Each Participant
having at least three Years of Service for Vesting at the time of the adoption
of any amendment changing any vesting schedule under the Plan, or prior to the
end of


 


57

















 


the election period set forth by this paragraph, shall have the right to
elect at any time, but no later than 60 days after the later of (a) the date
the amendment is adopted, (b) the date on which the amendment is effective, or
(c) the date on which the Participant is given written notice of the amendment,
to have his or her vested percentage computed under the Plan without regard to
such amendment.


 


§ 10.4     100% Vesting on Termination of Plan


 


Upon termination
or partial termination of the Plan by formal action of the Plan Sponsor or for
any other reason, or if Employer contributions to the Plan and Trust are
permanently discontinued for any reason, there shall be vested 100% in each
Participant directly affected by such action the amount allocated to the
accounts of each such Participant, and payment to such Participant shall be
made in cash or in kind as soon as practicable after liquidation of the assets
of the Trust.  Provided, however, that
an amount from a Participant’s Participant Deferral Account, Qualified
Nonelective Contributions Account, or Qualified Matching Contributions Account
may only be distributed if the Employer does not maintain or establish another
defined contribution plan at the time the Plan is terminated or within the 12
month period ending after distribution of all assets from the Plan, other than
an employee stock ownership plan (as defined in IRC section 4975(e) or IRC
section 409), a simplified employee pension plan as defined in IRC section
408(k), maintained by the Employer or a defined contribution plan if fewer than
2% of the Employees who are eligible under the Plan at the time of its
termination are or were eligible under such other defined contribution plan at
any time during the 24 month period beginning 12 months before the time of the
termination.  In addition, distributions
made after March 31, 1988 on account of the termination of the Plan must be
made in a lump sum (as defined in Treasury Regulation section
1.401(k)–1(d)(5)).


 


§ 10.5     Plan Merger or Consolidation


 


In the case of any
merger or consolidation with, or transfer of any assets or liabilities to, any
other plan, each Participant in this Plan must be entitled to receive (if the
surviving plan is then terminated) a benefit immediately after the merger,
consolidation, or transfer which is equal to or greater than the benefit he or she
would have been entitled to receive immediately before the merger,
consolidation, or transfer (if this Plan had terminated).


 


§ 10.6     Adoption by
Affiliates


 


This Section 10.6
is effective as of December 31, 2001.


 


(a)           Any
Affiliated Employer may adopt this Plan with the consent of the Board of
Directors of the Plan Sponsor.  Upon the
effective date of the Plan with respect to an Affiliated Employer that adopts
the Plan, such adopting Affiliated Employer delegates all fiduciary and
administrative responsibilities (including the appointment and removal of
fiduciaries) allocated under the Plan to the Plan Sponsor, the Plan
Administrator and other fiduciaries of the Plan; provided, however, that this
delegation of fiduciary and administrative responsibilities may be altered by
written agreement between the Plan Sponsor and an Affiliated Employer that has
adopted the Plan.


 


58

















 


(b)           An
Affiliated Employer adopting the Plan may specify different effective dates for
its participation in the Plan and may provide for different options under the
Plan than the Plan Sponsor; provided, however, that the Plan Sponsor consents
to the adoption of such options.


 


(c)           Any
participating affiliate (including a present or past Affiliated Employer) may
withdraw its adoption of the Plan at any time without affecting the other
participating Affiliated Employers in the Plan by delivering to the Board of
Directors of the Plan Sponsor a copy of resolutions to such effect, as adopted
by the affiliate’s board of directors. 
The board of directors of the Plan Sponsor may, in its absolute
discretion, terminate the participation in the Plan of any of its affiliates
(including a present or past Affiliated Employer) at any time.


 


ARTICLE XI

MISCELLANEOUS


 


§ 11.1     Laws of Minnesota to Apply


 


This Plan shall be
construed according to the laws of the State of Minnesota without regard to its
conflict of laws provisions, to the extent Federal laws do not control.


 


§ 11.2     Credit for Qualified Military Service


 


Notwithstanding
any provision of this Plan to the contrary, effective as required by USERRA
(i.e., December 12, 1994), contributions, benefits and service credit with
respect to qualified military service will be provided in accordance with IRC
section 414(u).


 


§ 11.3     Participant Cannot Transfer or Assign
Benefits


 


None of the
benefits, payments, proceeds, claims, or rights of any Participant hereunder
shall be subject to any claim of any creditor of the Participant, nor shall any
Participant have any right to transfer, assign, encumber, or otherwise
alienate, any of the benefits or proceeds which he or she may expect to
receive, contingently or otherwise under this Plan.


 


Notwithstanding
any restrictions on the time of distribution which would otherwise apply under
this Plan, distributions with respect to a Qualified Domestic Relations Order
may be made at any time required by the order.


 


§ 11.4     Right to Perform Alternative Acts


 


In the event it
becomes impossible for the Employer, the Plan Administrator or the Trustee to
perform any act required by this Plan, then the Employer, the Plan
Administrator or the Trustee may perform such alternative act which most
clearly carries out the intent and purpose of this Plan.


 


§ 11.5     Reversion of
Contributions Under Certain Circumstances


 


All contributions
made pursuant to Article IV are conditioned on deductibility of such
contributions under IRC section 404.  To
the extent that the deduction under IRC section 404 for


 


59

















 


any year is disallowed, the contribution shall be returned to the
Employer within one year after disallowance of the deduction.


 


If a contribution
is made by the Employer by a mistake of fact, the contribution may be returned
to the Employer within one year after the payment of the contribution.


 


Notwithstanding
the above, earnings attributable to amounts described in paragraphs two and
three of this Section 11.5 shall not be returned to the Employer; losses
attributable to such amounts shall reduce the amount returned.


 


§ 11.6     Plan Administrator Agent for Service of
Process


 


The Plan
Administrator is designated agent to receive service of legal process on behalf
of the Plan.


 


§ 11.7     Filing Tax Returns and Reports


 


The Plan
Administrator shall prepare, or cause to have prepared, all tax returns,
reports, and related documents, except as otherwise specifically provided in
this Plan or Trust Agreement.


 


§ 11.8     Indemnification


 


The Employer shall
indemnify all Employees who serve as Plan Administrator against all liability
arising in connection with their duties under the Plan, except that this
indemnification shall not include acts of embezzlement, or diversion of Trust
Funds by the Employee, nor shall it include acts or omissions that constitute
willful misconduct, gross negligence or any breach of fiduciary duty under
ERISA.


 


§ 11.9     Number and Gender


 


When appropriate
the singular as used in this Plan shall include the plural and vice versa; and
the masculine shall include the feminine.


 


IN WITNESS WHEREOF, the Plan Sponsor has adopted this
Plan on behalf of the Employer, on this 28th day of October, 2003.


 


	
   

  	
  BEST BUY CO., INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John C.
  Walden

  
	
   

  	
   

  	
  John Walden,
  Executive Vice President of

  Human Capital and Leadership

  



 


60

















 


APPENDIX


 


BEST BUY

RETIREMENT SAVINGS PLAN


 


IRS MODEL PLAN AMENDMENT 1 - DEFINED CONTRIBUTION
PLANS


THIS APPENDIX AMENDS SECTION 7.3 OF THE PLAN


CONCERNING 
REQUIRED MINIMUM DISTRIBUTIONS


 


Section 1.               General Rules.


 


1.1.          Effective Date.
The provisions of this Appendix will apply for purposes of determining required
minimum distributions for distribution calendar years beginning with the 2003
calendar year, as well as required minimum distributions for the 2002
distribution calendar year that are made on or after any earlier effective date
specified in Section 1 of the Adoption Agreement at the end of this Appendix.


 


1.2.          Coordination with
Minimum Distribution Requirements Previously in Effect. If Section 1 of
such Adoption Agreement specifies an effective date of this Appendix that is
earlier than calendar years beginning with the 2003 calendar year, required
minimum distributions for 2002 under this Appendix will be determined as
follows.  If the total amount of 2002
required minimum distributions under the Plan made to the distributee prior to
the effective date of this Appendix equals or exceeds the required minimum
distributions determined under this Appendix, then no additional distributions
will be required to be made for 2002 on or after such date to the
distributee.  If the total amount of
2002 required minimum distributions under the Plan made to the distributee
prior to the effective date of this Appendix is less than the amount determined
under this Appendix, then required minimum distributions for 2002 on and after
such date will be determined so that the total amount of required minimum
distributions for 2002 made to the distributee will be the amount determined
under this Appendix.


 


1.3.          Precedence. The
requirements of this Appendix will take precedence over any inconsistent
provisions of the Plan.


 


1.4.          Requirements of
Treasury Regulations Incorporated. All distributions required under this
Appendix will be determined and made in accordance with the Final and Temporary
Treasury Regulations under section 401(a)(9) of the Internal Revenue Code of
1974, as amended (the “Code”).  Those
Regulations were issued in 2002.


 


1.5.          TEFRA Section
242(b)(2) Elections. Notwithstanding the other provisions of this Appendix,
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 any provisions of the Plan that relate to section 242(b)(2) of
TEFRA.


 


Section 2.               Time and Manner of Distribution.


 


2.1.          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.


 


1

















 


2.2.          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, then, except
as provided in the Adoption Agreement at the end of this Appendix,
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, then,
except as provided in the Adoption Agreement at the end of this Appendix,
distributions to the designated beneficiary will begin by December 31 of the
calendar year immediately following the calendar year in which the Participant
died.


 


(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 Section 2.2, other than Section 2.2(a), will apply
as if the surviving spouse were the Participant.


 


For purposes of
this Section 2.2 and Section 4, unless Section 2.2(d) applies, distributions
are considered to begin on the Participant’s required beginning date. If
Section 2.2(d) applies, distributions are considered to begin on the date
distributions are required to begin to the surviving spouse under Section
2.2(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 Section 2.2(a)), the date
distributions are considered to begin is the date distributions actually
commence.


 


2.3.          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 Sections 3 and 4 of this
Appendix. 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.


 


Section 3.               Required Minimum Distributions During
Participant’s Lifetime.


 


3.1.          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:


 


2

















 


(a)           the quotient obtained
by dividing the Participant’s account balance by the distribution period in the
Uniform Lifetime Table set forth in section 1.401(a)(9)-9 of the Treasury
regulations, 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
section 1.401(a)(9)-9 of the Treasury regulations, using the Participant’s and
spouse’s attained ages as of the Participant’s and spouse’s birthdays in the
distribution calendar year.


 


3.2.          Lifetime Required
Minimum Distributions Continue Through Year of Participant’s Death.
Required minimum distributions will be determined under this Section 3 beginning
with the first distribution calendar year and up to and including the
distribution calendar year that includes the Participant’s date of death.


 


Section 4.               Required Minimum Distributions After
Participant’s Death.


 


4.1.          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:


 


(1)           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.


 


(2)           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.


 


(3)           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


 


3

















 


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.


 


4.2.          Death Before Date
Distributions Begin.


 


(a)           Participant Survived
by Designated Beneficiary. Except as provided in the Adoption Agreement at
the end of this Appendix, 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 Section 4.1.


 


(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 Section 2.2(a), this Section 4.2 will apply as if the
surviving spouse were the Participant.


 


Section 5.               Definitions.


 


5.1.          Designated
beneficiary. A “designated beneficiary” is the individual who is designated
as the beneficiary under Section 5.5 of the Plan and is the designated
beneficiary under section 401(a)(9) of the Internal Revenue Code and section
1.401(a)(9)-1, Q&A-4, of the Treasury Regulations.


 


5.2.          Distribution calendar
year.  A “distribution calendar
year” is a calendar year for which a minimum distribution is required. For
distributions beginning before the Participant’s death, the first distribution
calendar year is the calendar year immediately preceding the calendar year that
contains the Participant’s required beginning date. 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 Section 2.2.
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.


 


4

















 


5.3.          Life expectancy.
“Life expectancy” means life expectancy as computed by use of the Single Life
Table in section 1.401(a)(9)-9 of the Treasury Regulations.


 


5.4.          Participant’s account
balance. “Participant’s account balance” means 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.


 


5.5.          Required beginning
date. “Required beginning date” means the date specified in Section
7.3(g)(vi) of the Plan.


 


ADOPTION AGREEMENT


 


(Check and
complete Section 1 below if any required minimum distributions for the 2002
distribution calendar year were made in accordance with the 2002 Regulations
described above in Section 1.4.)


 


Section 1.               Effective Date of Plan Amendment in
2002.


 


     ý     This
Appendix applies for purposes of determining required minimum distributions for
distribution calendar years beginning with the 2003 calendar year, as well as
required minimum distributions for the 2002 calendar year that are made on or
after  N/A  , 2002.


 


(Check and
complete any of the remaining Sections if you wish to modify the rules in
Sections 2.2 and 4.2 of this Appendix.)


 


Section 2.               Election to Apply 5-Year Rule to
Distributions to Designated Beneficiaries. 


 


              If
the Participant dies before distributions begin and there is a designated
beneficiary, distribution to the designated beneficiary is not required to
begin by the date specified in Section 2.2 of this Appendix, but the
Participant’s entire interest will be distributed to the designated beneficiary
by December 31 of the calendar year containing the fifth anniversary of the
Participant’s death.  If the Participant’s
surviving spouse is the Participant’s sole designated beneficiary and the
surviving spouse dies after the Participant but before distributions to either
the Participant or the surviving spouse begin, this election will apply as if
the surviving spouse were the Participant. 
This election will apply to:


 


              All
distributions.


 


              The
following distributions:                                                   .


 


5

















 


Section 3.               Election to Allow Participants or
Beneficiaries to Elect 5-Year Rule.


 


     ý     Participants
or beneficiaries may elect on an individual basis whether the 5-year rule or
the life expectancy rule in Sections 2.2 and 4.2 of this Appendix applies to
distributions after the death of a Participant who has a designated
beneficiary.  The election must be made
no later than the earlier of September 30 of the calendar year in which
distribution would be required to begin under Section 2.2 of this Appendix, or
by September 30 of the calendar year which contains the fifth anniversary of
the Participant’s (or, if applicable, surviving spouse’s) death.  If neither the Participant nor beneficiary
makes an election under this paragraph, distributions will be made in
accordance with Sections 2.2 and 4.2 of this Appendix and, if applicable, the
elections in Section 2 above.


 


Section 4.               Election to Allow Designated
Beneficiary Receiving Distributions Under 5-Year Rule to Elect Life Expectancy
Distributions.


 


     ý    
A designated beneficiary who is receiving payments under the 5-year rule may
make a new election to receive payments under the life expectancy rule until
December 31, 2003; provided, however, that all amounts that would have been
required to be distributed under the life expectancy rule for all distribution
calendar years before 2004 are distributed by the earlier of December 31, 2003,
or the end of the 5-year period.


 


6