**Exhibit 10.1**

 

FIRST CONSULTING GROUP,INC.

ASSOCIATE 401(k) ANDSTOCK OWNERSHIP PLAN

 

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**FIRST CONSULTING GROUP, INC.**

**ASSOCIATE 401(k)AND STOCK OWNERSHIP PLAN**

 

**WHEREAS,** First Consulting Group, Inc.(hereinafter referred to as the “Employer”) heretofore adopted the FirstConsulting Group, Inc. Associate 401(k) and Stock Ownership Plan (hereinafterreferred to as the “Plan”) for the benefit of its eligible Associates; and

 

**WHEREAS,**the Employerreserved the right to amend the Plan; and

 

**WHEREAS,**the Employerheretofore amended the Plan from time to time; and

 

**WHEREAS,**the FirstConsulting Group, Inc. dba First Consulting Group Profit Sharing 401(k) Planwas merged into the Plan effective as of January 1, 1996, and the IntegratedSystems Consulting Group, Inc. 401(k) Plan and the WaveFront Consulting, Inc.401(k) and Profit Sharing Plan were merged into the Plan effective as of April1, 1999; and

 

**WHEREAS,**the Employerwishes to amend the Plan in order to comply with changes permitted or requiredby the Uruguay Round Agreements Act (“GATT”), the Uniformed Services Employmentand Reemployment Rights Act of 1994 (“USERRA”), the Small Business JobProtection Act of 1996 (“SBJPA”), the Taxpayer Relief Act of 1997 (“TRA’97”)and to add or modify certain administrative provisions; and

 

**WHEREAS,**it is intendedthat the Plan is to continue to be a qualified plan under Section 401(a)of the Internal Revenue Code for the exclusive benefit of the Participants andtheir Beneficiaries;

 

**NOW,THEREFORE,**thePlan is hereby amended by restating the Plan in its entirety as follows, withsuch restatement also constituting an amendment of the First Consulting Group,Inc. dba First Consulting Group Profit Sharing 401(k) Plan, the IntegratedSystems Consulting Group, Inc. 401(k) Plan and the WaveFront Consulting, Inc.401(k) and Profit Sharing Plan for the purposes of complying with GATT, USERRA,SBJPA and TRA’97 for the applicable periods:

 

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**Table of Contents**

 
| **ARTICLE  ONE—DEFINITIONS**                   |
|-----------------------------------------------------|
|                                                | 1.1 | Account |
|                                                | 1.2 | Administrator |
|                                                | 1.3 | ASOP Fund |
|                                                | 1.4 | ASOP Loan |
|                                                | 1.5 | Associate |
|                                                | 1.6 | Beneficiary |
|                                                | 1.7 | Break in  Service |
|                                                | 1.8 | Code |
|                                                | 1.9 | Compensation |
|                                                | 1.10 | Disability |
|                                                | 1.11 | Early  Retirement Date |
|                                                | 1.12 | Effective Date |
|                                                | 1.13 | Employer |
|                                                | 1.14 | Employer Stock |
|                                                | 1.15 | Employment Date |
|                                                | 1.16 | First Share Contributions |
|                                                | 1.17 | Highly-Compensated  Associate |
|                                                | 1.18 | Hour of Service |
|                                                | 1.19 | Leased Employee |
|                                                | 1.20 | Nonhighly-Compensated  Associate |
|                                                | 1.21 | Normal Retirement Date |
|                                                | 1.22 | Participant |
|                                                | 1.23 | Plan |
|                                                | 1.24 | Plan Year |
|                                                | 1.25 | Prior Plan |
|                                                | 1.26 | Trust |
|                                                | 1.27 | Trustee |
|                                                | 1.28 | Valuation Date |
|                                                | 1.29 | Year of Vesting  Service or Service |
|                                                |   |   |
| **ARTICLE  TWO—SERVICE DEFINITIONS AND RULES** |
|                                                | 2.1 | Year  of Vesting Service |
|                                                | 2.2 | Break in Service |
|                                                | 2.3 | Leave of  Absence |
|                                                | 2.4 | Rule of Parity  on Return to Employment |
|                                                | 2.5 | Service  in Excluded Job Classifications or With Related Companies |
|                                                |   |   |
| **ARTICLE THREE—PLAN  PARTICIPATION**          |
|                                                | 3.1 | Participation |
|                                                | 3.2 | Re-Employment of  Former Participant |
|                                                | 3.3 | Termination of Eligibility |
|                                                | 3.4 | Compliance  with USERRA |

 

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| **ARTICLE FOUR—ELECTIVE  DEFERRALS, EMPLOYER CONTRIBUTIONS,** |
|--------------------------------------------------------------------|
|                                                               | **ROLLOVERS AND TRANSFERS  FROM OTHER PLANS** |
|                                                               | 4.1 | Elective  Deferrals |
|                                                               | 4.2 | Employer Matching  Contributions |
|                                                               | 4.3 | Employer Profit  Sharing Contributions |
|                                                               | 4.4 | Special  Contribution for Certain Participants |
|                                                               | 4.5 | Rollovers  and Transfers of Funds From Other Plans |
|                                                               | 4.6 | Timing  of Contributions |
|                                                               |   |   |
| **ARTICLE FIVE—ACCOUNTING  RULES**                            |
|                                                               | 5.1 | Investment  of Accounts and Accounting Rules |
|                                                               | 5.2 | Participants Omitted in  Error |
|                                                               |   |   |
| **ARTICLE  SIX—VESTING, RETIREMENT AND DISABILITY BENEFITS**  |
|                                                               | 6.1 | Vesting |
|                                                               | 6.2 | Forfeiture of Nonvested  Balance |
|                                                               | 6.3 | Distribution  of Less Than Entire Vested Account Balance |
|                                                               | 6.4 | Normal  Retirement |
|                                                               | 6.5 | Disability |
|                                                               | 6.6 | Early  Retirement |
|                                                               |   |   |
| **ARTICLE  SEVEN—MANNER AND TIME OF DISTRIBUTING BENEFITS**   |
|                                                               | 7.1 | Manner of  Payment |
|                                                               | 7.2 | Time of  Commencement of Benefit Payments |
|                                                               | 7.3 | Furnishing  Information |
|                                                               | 7.4 | Minimum  Distribution Rules for Installment Payments |
|                                                               | 7.5 | Joint and  Survivor Annuity |
|                                                               | 7.6 | Amount  of Death Benefit |
|                                                               | 7.7 | Designation of Beneficiary |
|                                                               | 7.8 | Distribution of Death  Benefits |
|                                                               | 7.9 | Qualified  Pre-Retirement Survivor Annuity |
|                                                               | 7.10 | Eligible  Rollover Distributions |
|                                                               |   |   |
| **ARTICLE  SEVEN A—SPECIAL EMPLOYER STOCK PROVISIONS**        |
|                                                               | 7A.1 | Valuation  of Employer Stock |
|                                                               | 7A.2 | Allocation  of Employer Stock Purchased with Proceeds of ASOP Loan |
|                                                               | 7A.3 | Privileges and Restrictions  on Employer Stock; In General |
|                                                               | 7A.4 | Privileges and  Restrictions Applicable to Securities Acquired with ASOP Loans |
|                                                               | 7A.5 | Voting Employer  Stock |
|                                                                    |  |  |  |

 

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| **ARTICLE  EIGHT—LOANS AND IN-SERVICE WITHDRAWALS** |
|----------------------------------------------------------|
|                                                     | 8.1 | Loans |
|                                                     | 8.2 | Hardship  Distributions |
|                                                     | 8.3 | Withdrawals After Age 591⁄2 |
|                                                     | 8.4 | Withdrawals  of Rollover Contributions |
|                                                     | 8.5 | Diversification |
|                                                     |   |   |
| **ARTICLE  NINE—ASOP LOANS**                        |
|                                                     | 9.1 | ASOP Loans |
|                                                     | 9.2 | Primary Benefit Requirement |
|                                                     | 9.3 | Use  of ASOP Loan Proceeds |
|                                                     | 9.4 | Liability  and Collateral of Plan for ASOP Loan |
|                                                     | 9.5 | Default |
|                                                     | 9.6 | Release of  Collateral for ASOP Loan |
|                                                     | 9.7 | Income |
|                                                     |   |   |
| **ARTICLE  TEN—ADMINISTRATION OF THE PLAN**         |
|                                                     | 10.1 | Plan  Administration |
|                                                     | 10.2 | Claims  Procedure |
|                                                     | 10.3 | Trust Agreement |
|                                                     |   |   |
| **ARTICLE  ELEVEN—SPECIAL COMPLIANCE PROVISIONS**   |
|                                                     | 11.1 | Distribution  of Excess Deferral Amounts |
|                                                     | 11.2 | Limitations on  401(k) Contributions |
|                                                     | 11.3 | Nondiscrimination  Test for Employer Matching Contributions |
|                                                     | 11.4 | Limitation  on the Multiple Use Alternative |
|                                                     |   |   |
| **ARTICLE  TWELVE—LIMITATION ON ANNUAL ADDITIONS**  |
|                                                     | 12.1 | Rules  and Definitions |
|                                                     |   |   |
| **ARTICLE THIRTEEN—AMENDMENT  AND TERMINATION**     |
|                                                     | 13.1 | Amendment |
|                                                     | 13.2 | Termination  of the Plan |
|                                                     | 13.3 | Distribution  Upon Sale or Disposition of Stock or Assets |
|                                                     |   |   |
| **ARTICLE  FOURTEEN—TOP-HEAVY PROVISIONS**          |
|                                                     | 14.1 | Applicability |
|                                                     | 14.2 | Definitions |
|                                                     | 14.3 | Allocation  of Employer Contributions and Forfeitures for a Top-Heavy Plan Year |
|                                                     | 14.4 | Vesting |

 

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| **ARTICLE  FIFTEEN—MISCELLANEOUS PROVISIONS** |
|----------------------------------------------------|
|                                               | 15.1 | Plan Does Not Affect  Employment |
|                                               | 15.2 | Successor to the Employer |
|                                               | 15.3 | Repayments to the Employer |
|                                               | 15.4 | Benefits  Not Assignable |
|                                               | 15.5 | Merger of Plans |
|                                               | 15.6 | Investment Experience  Not a Forfeiture |
|                                               | 15.7 | Construction |
|                                               | 15.8 | Governing  Documents |
|                                               | 15.9 | Governing Law |
|                                               | 15.10 | Headings |
|                                               | 15.11 | Counterparts |
|                                               | 15.12 | Location  of Participant or Beneficiary Unknown |

 

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**ARTICLEONE—DEFINITIONS**

 

For purposes of the Plan, unless the context or an alternativedefinition specified within another Article provides otherwise, the followingwords and phrases shall have the definitions provided:

 

**1.1****                              ****“ACCOUNT”**shall mean the individual bookkeeping accountsmaintained for a Participant under the Plan which shall consist of thefollowing sub-Accounts:

 

**Pre-Tax (401(k)) Contributions Account** which shall be credited with anyelective deferrals made by the Participant pursuant to Section 4.1 or under aPrior Plan and any earnings thereon.

 

**Matching Contributions Account** which shall consist of any Employermatching contributions made on behalf of the Participant pursuant to Section4.2 or under a Prior Plan which are not part of the ASOP Fund, and any earningsthereon.

 

**ASOP Matching Contributions Account** which shall consist of any Employermatching contributions made on behalf of the Participant pursuant to Section4.2 which are part of the ASOP Fund, and any earnings thereon.

 

**First Share Account** which shall consist of any First Share Contributionsmade on behalf of the Participant which are part of the ASOP Fund, and anyearnings thereon.

 

**Profit Sharing Account** which shall consist of any Employer profit sharingcontributions made on behalf of the Participant pursuant to Section 4.3 orunder a Prior Plan which are not part of the ASOP Fund, and any earningsthereon.

 

**ASOP Profit Sharing Account** which shall consist of any Employerprofit sharing contributions made on behalf of the Participant pursuant toSection 4.3 which are part of the ASOP Fund, and any earnings thereon.

 

**Rollover Account** which shall consist of any rollover contributionsmade by the Participant pursuant to Section 4.5 or under a Prior Plan and anyearnings thereon.

 

**Special Contribution Account** which shall consist of any specialEmployer contributions made on behalf of the Participant pursuant to Section4.4 and any earnings thereon.

 

**1.2****                              ****“ADMINISTRATOR”**shall mean the Plan Administratorappointed from time to time in accordance with the provisions of Article Tenhereof.

 

**1.3****                              ****“ASOP FUND”**shall mean that portion of the Trustcomprising the “employee stock ownership” portion of the Plan (within themeaning of Section 4975(e)(7) of the Code), the assets of which shall beinvested in shares of Employer Stock; provided, however, that a portion thereofshall be invested in cash and cash equivalents for purposes of liquidity.

 

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**1.4****                              ****“ASOP LOAN”**shall mean a loan made in accordance withArticle Nine.

 

**1.5****                              ****“ASSOCIATE”**shall mean a common law employee of theEmployer.

 

**1.6****                              ****“BENEFICIARY”**shall mean any person, trust,organization, or estate entitled to receive payment under the terms of the Planupon the death of a Participant.

 

**1.7****                              ****“BREAK IN SERVICE”**shall have the meaning set forth inSection 2.2.

 

**1.8****                              ****“CODE”**shall mean the Internal Revenue Code of 1986, asamended from time to time.

 

**1.9****                              ****“COMPENSATION”**shall mean the compensation paid to aParticipant by the Employer for the Plan Year, but exclusive of bonuses,relocation payments, fringe benefits, any program of deferred compensation oradditional benefits payable other than in cash and any compensation receivedprior to his becoming a Participant in the Plan.  Compensation shall, however, include any amounts deferred under asalary reduction agreement in accordance with Section 4.1 or under a CodeSection 125 plan maintained by the Employer.

 

In addition to other applicable limitations set forthin the Plan, and notwithstanding any other provision of the Plan to thecontrary, the annual Compensation of each Participant taken into account underthe Plan shall not exceed the OBRA ‘93 annual compensation limit.  The OBRA ‘93 annual compensation limit is$150,000, as adjusted by the Secretary of the Treasury or his delegate for increasesin the cost of living in accordance with Section 401(a)(17)(B) of theCode.  The cost-of-living adjustment ineffect for a calendar year applies to any period, not exceeding twelve (12)months, over which Compensation is determined (determination period) beginningin such calendar year.  If adetermination period consists of fewer than twelve (12) months, theOBRA ’93 annual compensation limit shall be multiplied by a fraction, thenumerator of which is the number of months in the determination period, and thedenominator of which is twelve (12).

 

Any reference in the Plan to the limitation underSection 401(a)(17) of the Code shall mean the OBRA ‘93 annual compensationlimit set forth in this provision.

 

If Compensation for any prior determination period istaken into account in determining a Participant’s benefits accruing in thecurrent Plan Year, the Compensation for that prior determination period shallbe subject to the OBRA ‘93 annual compensation limit in effect for that priordetermination period.

 

For purposes of determining who is aHighly-Compensated Associate, Compensation shall mean compensation as definedin Code Section 414(q)(4).

 

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**1.10****                       ****“DISABILITY”**shall mean any inability to engage in anysubstantial gainful activity by reason of any medically determinable physicalor mental impairment which can be expected to result in death or to be oflong-continued and indefinite duration, within the meaning of Section 72(m)(7)of the Code.  Notwithstanding theforegoing, the Administrator shall determine that a Participant has incurred aDisability if the Participant qualifies for disability benefits under theEmployer’s LTD plan, and shall presume conclusively that a Participant coveredby such LTD plan but who does not so qualify has not incurred a Disability.

 

**1.11****                       ****“EARLY RETIREMENT DATE”**shall mean the date on which aParticipant retires early pursuant to Section 6.6.

 

**1.12****                       ****“EFFECTIVE DATE.” **The Plan’s initial Effective Date is December 1,1995.  The Effective Date of thisrestated Plan, on and after which it supersedes the terms of the existing Plandocument, is January 1, 2000, except where the provisions of the Plan, orthe requirements of applicable law, shall otherwise specifically provide.  The rights of any Participant who separatedfrom the Employer’s Service prior to the applicable date shall be establishedunder the terms of the Plan and Trust as in effect at the time of theParticipant’s separation from Service, unless the Participant subsequentlyreturns to Service with the Employer. Rights of spouses and Beneficiaries of such Participants shall also begoverned by those documents.

 

**1.13****                       ****“EMPLOYER”**shall mean First Consulting Group, Inc.and any subsidiary or affiliate which is a member of its “related group” (asdefined in Section 2.5) which has adopted the Plan (a “ParticipatingAffiliate”), and shall include any successor(s) thereto which adopt thisPlan.  Any such subsidiary or affiliateof First Consulting Group, Inc. may adopt the Plan with the approval of itsboard of directors (or noncorporate counterpart) subject to the approval ofFirst Consulting Group, Inc.  Theprovisions of this Plan shall apply equally to each Participating Affiliate andits Associates except as specifically set forth in the Plan; provided, however,notwithstanding any other provision of this Plan, the amount and timing ofcontributions under Article 4 to be made by any Employer which is aParticipating Affiliate shall be made subject to the approval of FirstConsulting Group, Inc.  For purposeshereof, each Participating Affiliate shall be deemed to have appointed FirstConsulting Group, Inc. as its agent to act on its behalf in all mattersrelating to the administration, amendment, termination of the Plan and theinvestment of the assets of the Plan. For purposes of the Code and ERISA, the Plan as maintained by FirstConsulting Group, Inc. and the Participating Affiliates shall constitute asingle plan rather than a separate plan of each Participating Affiliate.  All assets in the Trust shall be availableto pay benefits to all Participants and their Beneficiaries.

 

**1.14****                       ****“EMPLOYER STOCK”**shall mean any class of stock of theEmployer which both constitutes “qualifying employer securities” as defined inSection 407(d) of the Employee Retirement Income Security Act of 1974, asamended, and “employer securities” as defined in Section 409(l) of the Code.

 

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**1.15****                       ****“EMPLOYMENT DATE”**shall mean the first date as of which anAssociate is credited with an Hour of Service, provided that, in the case of aBreak in Service, the Employment Date shall be the first date thereafter as ofwhich an Associate is credited with an Hour of Service.

 

**1.16****                       ****“FIRST SHARE CONTRIBUTIONS”** shall mean contributions made by the Employerprior to January 1, 1999 in shares of Employer Stock or cash applied to thepurchase of Employer Stock.

 

**1.17****                       ****“HIGHLY-COMPENSATEDASSOCIATE”**shallmean, effective for years beginning after December 31, 1996, any Associate ofthe Employer who:

 

(a)                                  was a five percent (5%) owner of theEmployer (as defined in Code Section 416(i)(1)) during the “determination year”or “look-back year”; or

 

(b)                                 earned more than $80,000 (as increased bycost-of-living adjustments) of Compensation from the Employer during the“look-back year” and, if the Employer elects, was in the top twenty percent(20%) of Associates by Compensation for such year.  Such election was made under the WaveFront Consulting, Inc.401(k) and Profit Sharing Plan for the 1997 and 1998 Plan Years.

 

An Associate who separated from Service prior to the“determination year” shall be treated as a Highly-Compensated Associate for the“determination year” if such Associate was a Highly-Compensated Associate whensuch Associate separated from Service, or was a Highly-Compensated Associate atany time after attaining age fifty-five (55).

 

For purposes of this Section, the “determination year”shall be the Plan Year for which a determination is being made as to whether anAssociate is a Highly-Compensated Associate. The “look-back year” shall be the twelve (12) month period immediatelypreceding the “determination year”.  Notwithstandingthe foregoing, and effective solely for the 1997 Plan Year, the Employer,pursuant to Notice 97-45, elected to utilize the calendar year calculationelection.

 

In determining whether an Associate is aHighly-Compensated Associate for the Plan Year beginning in 1997, theamendments to Section 414(q) stated above shall be treated as having been ineffect for the Plan Year beginning in 1996.

 

**1.18****                       ****“HOUR OF SERVICE”**shall have the meaning set forth below:

 

(a)                                  An Hour of Service is each hour for whichan Associate is paid, or entitled to payment, for the performance of duties forthe Employer, during the applicable computation period.

 

(b)                                 An Hour of Service is each hour for whichan Associate is paid, or entitled to payment, by the Employer on account of aperiod of time during which no duties are performed (irrespective of whetherthe employment relationship has terminated) due to vacation,

 

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holiday, illness, incapacity (including disability),layoff, jury duty, military duty, or leave of absence.  Notwithstanding the preceding sentence,

 

(i)                                     No more than five hundred and one (501)Hours of Service shall be credited under this paragraph (b) to any Associate onaccount of any single continuous period during which the Associate performs noduties (whether or not such period occurs in a single computation period);

 

(ii)                                  An hour for which an Associate isdirectly or indirectly paid, or entitled to payment, on account of a periodduring which no duties are performed shall not be credited to the Associate ifsuch payment is made or due under a plan maintained solely for the purpose of complyingwith applicable workmen’s compensation, or unemployment compensation ordisability insurance laws; and

 

(iii)                               Hours of Service shall not be creditedfor a payment which solely reimburses an Associate for medical or medicallyrelated expenses incurred by the Associate.

 

For purposes of this paragraph (b), a payment shall bedeemed to be made by or due from the Employer regardless of whether suchpayment is made by or due from the Employer directly, or indirectly through,among others, a trust fund, or insurer, to which the Employer contributes orpays premiums and regardless of whether contributions made or due to the trustfund, insurer or other entity are for the benefit of particular Associates orare on behalf of a group of Associates in the aggregate.

 

(c)                                  An Hour of Service is each hour for whichback pay, irrespective of mitigation of damages, is either awarded or agreed toby the Employer.  The same Hours ofService shall not be credited both under paragraph (a) or paragraph (b), as thecase may be, and under this paragraph (c). Thus, for example, an Associate who receives a back pay award followinga determination that he was paid at an unlawful rate for Hours of Servicepreviously credited shall not be entitled to additional credit for the sameHours of Service.  Crediting of Hours ofService for back pay awarded or agreed to with respect to periods described inparagraph (b) shall be subject to the limitations set forth in that paragraph.

 

**1.19****                       ****“LEASED EMPLOYEE”**shall mean, effective January 1, 1997,any person who, pursuant to an agreement between the Employer and any otherperson or organization, has performed services for the Employer (determined inaccordance with Code Section 414(n)(6)) on a substantially full-time basisfor a period of at least one (1) year and where such services are performedunder the primary direction and control of the Employer.  A person shall not be considered a LeasedEmployee if the total number of Leased Employees does not exceed twenty percent(20%) of the Nonhighly-Compensated Associates employed by the Employer, and ifany such person is covered by a money purchase pension plan providing(a) a nonintegrated employer contribution rate of at least ten percent(10%) of compensation, as defined in Section 12.1(b)(2) of the Plan butincluding amounts contributed pursuant to a salary reduction agreement whichare excludable from the employee’s gross income under Code Sections 125, 402(g)or 403(b), (b) immediate participation, and (c) full and immediate vesting.

 

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**1.20****                       ****“NONHIGHLY-COMPENSATEDASSOCIATE”**shallmean an Associate of the Employer who is not a Highly-Compensated Associate.

 

**1.21****                       ****“NORMAL RETIREMENT DATE”**shall mean the Participant’s sixty-second(62nd) birthday or, if later, the fifth (5th) anniversaryof the Participant’s commencement of initial Plan participation.

 

**1.22****                       ****“PARTICIPANT”**shall mean any Associate who hassatisfied the eligibility requirements of Article Three and who isparticipating in the Plan.

 

**1.23****                       ****“PLAN”**shall mean the First Consulting Group, Inc. Associate401(k) and Stock Ownership Plan, as set forth herein and as may be amended fromtime to time.

 

**1.24****                       ****“PLAN YEAR”**shall mean the twelve (12)-consecutivemonth period beginning January 1 and ending December 31.

 

**1.25****                       ****“PRIOR PLAN”**shall mean the First Consulting Group,Inc. dba First Consulting Group Profit Sharing 401(k) Plan, the IntegratedSystems Consulting Group, Inc. 401(k) Plan or the WaveFront Consulting, Inc.401(k) and Profit Sharing Plan as in effect from time to time prior to themerger of each of these plans into the Plan.

 

**1.26****                       ****“TRUST”**shall mean the Trust Agreement entered into betweenthe Employer and the Trustee forming part of this Plan, together with anyamendments thereto.  “Trust Fund” shallmean any and all property held by the Trustee pursuant to the Trust Agreement,together with income therefrom.

 

**1.27****                       ****“TRUSTEE”**shall mean the Trustee or Trustees appointed by theEmployer, and any successors thereto.

 

**1.28****                       ****“VALUATION DATE”**shall mean the date or dates establishedby the Administrator for the valuation of the assets of the Plan.  In no event shall the assets of the Plan bevalued less frequently than once each Plan Year.

 

**1.29****                       ****“YEAR OF VESTINGSERVICE” or “SERVICE”**and the special rules with respect to creditingService are in Article Two of the Plan.

 

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**ARTICLETWO—SERVICE DEFINITIONS AND RULES**

 

Service is the period of employment credited under the Plan.  Definitions and special rules related toService are as follows:

 

**2.1****                              ****YEAR OF VESTING SERVICE****. **An Associate shall be credited with aYear of Vesting Service for each Plan Year in which he is credited with atleast one thousand (1,000) Hours of Service. For such purposes, an Associate shall be credited with a Year of VestingService upon completion of the one thousandth (1,000th) hour in eachsuch twelve (12)-month period.

 

With respect to periods prior to January 1, 1996, aParticipant’s Years of Vesting Service and Breaks in Service shall be suchnumber of such years as are determined under the provisions of the FirstConsulting Group, Inc. dba First Consulting Group Profit Sharing 401(k) Plan asin effect through December 31, 1995 if the Participant was a participant in thatplan.

 

With respect to periods prior to April 1, 1999, aParticipant’s Years of Vesting Service and Breaks in Service shall be suchnumber of such years as are determined under the provisions of the IntegratedSystems Consulting Group, Inc. 401(k) Plan as in effect through March 31, 1999if the Participant was a participant in that plan.  For purposes of the foregoing calculations of Years of VestingService and Breaks in Service, each Participant shall be treated in the mannerset forth in Section 1.410(a)-7(f)(1) of the Income Tax Regulations, which areincorporated herein by reference, and shall be credited with one hundred andninety (190) Hours of Service for each month since his employment anniversaryduring which he would be required to be credited with one Hour of Service underthe Plan.

 

With respect to periods prior to April 1, 1999, aParticipant’s Years of Vesting Service and Breaks in Service shall be suchnumber of such years as are determined under the provisions of the WaveFrontConsulting Group, Inc. 401(k) and Profit Sharing Plan as in effect throughMarch 31, 1999 if the Participant was a participant in the plan.

 

With respect to Participants employed by FCGManagement Services, LLC and serving as a dedicated member of the project staffat the New York and Presbyterian Hospital account on January 1, 2000, each suchParticipant’s Years of Vesting Service and Breaks in Service as of January 1,2000 shall be such number of such years as are determined under the provisionsof The New York Hospital Employees’ Retirement Plan as in effect throughDecember 31, 1999 if the Participant was a participant in that plan.

 

In addition to the foregoing, with respect to anyindividual who becomes an Associate as a result of (a) the Employer’sacquisition of such individual’s employer, (b) the Employer’s acquisitionof all, or substantially all, of such employer’s operating assets, or (c) theterms of an outsourcing agreement between such individual’s employer and theEmployer, each such Associate’s prior period of employment with such employershall be taken into account in determining such Associate’s Year(s) of VestingService and Break(s) in Service.

 

**2.2****                              ****BREAK IN****SERVICE. **A Break in Service shall mean each PlanYear in which an Associate or Participant is not credited with at least fivehundred and one (501) Hours of Service.

 

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**2.3****                              ****LEAVE OF ABSENCE****. **A Participant on an unpaid leave ofabsence pursuant to the Employer’s normal personnel policies shall be creditedwith Hours of Service at his regularly-scheduled weekly rate while on suchleave, provided the Employer acknowledges in writing that the leave is with itsapproval.  These Hours of Service shallbe credited only for purposes of determining if a Break in Service has occurredand, unless specified otherwise by the Employer in writing, shall not becredited for eligibility to participate in the Plan, vesting, or qualificationto receive an allocation of Employer contributions and forfeitures.  Hours of Service during a paid leave ofabsence shall be credited as provided in Section 1.18.

 

For any individual who is absent from work for anyperiod by reason of the individual’s pregnancy, birth of the individual’schild, placement of a child with the individual in connection with theindividual’s adoption of the child, or by reason of the individual’s caring forthe child for a period beginning immediately following such birth or adoption,the Plan shall treat as Hours of Service, solely for determining if a Break inService has occurred, the following Hours of Service:

 

(a)                                  the Hours of Service which otherwisenormally would have been credited to such individual but for such absence; or

 

(b)                                 in any case where the Administrator isunable to determine the Hours of Service, on the basis of an assumed eight (8)hours per day.

 

In no event shall more than five hundred and one (501)of such hours be credited by reason of such period of absence.  The Hours of Service shall be credited inthe Plan Year which starts after the leave of absence begins.  However, the Hours of Service shall insteadbe credited in the Plan Year in which the absence begins if it is necessary tocredit the Hours of Service in that computation period to avoid the occurrenceof a Break in Service.

 

**2.4****                              ****RULE OF PARITY ON RETURNTO EMPLOYMENT****.** An Associate who returns to employment after a Break in Service shallretain credit for his pre-Break Years of Vesting Service, subject to thefollowing rules:

 

(a)                                  If a Participant incurs five (5) or moreconsecutive Breaks in Service, any Years of Vesting Service performedthereafter shall not be used to increase the nonforfeitable interest in hisAccount accrued prior to such five (5) or more consecutive Breaks in Service.

 

(b)                                 If, when a Participant incurred a Breakin Service, he had not completed sufficient Years of Vesting Service to becredited with a vested benefit under the schedule set forth in Section 6.1, hispre-Break Years of Vesting Service shall be disregarded if his consecutiveBreaks in Service equal or exceed five (5).

 

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**2.5****         ****SERVICE IN EXCLUDED JOBCLASSIFICATIONS OR WITH RELATED COMPANIES**

 

(a)                                  *Service while a Member of an Ineligible Classification ofAssociates**.* An Associate who is a member of an ineligible classification ofAssociates shall not be eligible to participate in the Plan while a member ofsuch ineligible classification. However, if any such Associate is transferred to an eligible classification,such Associate shall be credited with any prior Years of Vesting Servicecompleted while a member of such an ineligible classification.  For this purpose, an Associate shall beconsidered a member of an ineligible classification of Associates for anyperiod during which he is employed in a job classification which is excludedfrom participating in the Plan under Section 3.1 below.

 

(b)                                 *Service with Related Group Members**.*  Subject to Section 2.1, for each Plan Yearin which the Employer is a member of a “related group”, as hereinafter defined,all Service of an Associate or Leased Employee (hereinafter collectivelyreferred to as “Associate” solely for purposes of this Section 2.5(b)) with anyone or more members of such related group shall be treated as employment by theEmployer for purposes of determining the Associate’s Years of VestingService.  The transfer of employment byany such Associate to another member of the related group shall not be deemedto constitute a retirement or other termination of employment by the Associatefor purposes of this Section, but the Associate shall be deemed to havecontinued in employment with the Employer for purposes of determining theAssociate’s Years of Vesting Service. For purposes of this subsection (b), “related group” shall mean the Employerand all corporations, trades or businesses (whether or not incorporated) whichconstitute a controlled group of corporations with the Employer, a group oftrades or businesses under common control with the Employer, or an affiliatedservice group which includes the Employer, within the meaning of Section414(b), Section 414(c), or Section 414(m), respectively, of the Code or anyother entity required to be aggregated under Code Section 414(o).

 

(c)                                  *Construction**.* This Section is included in the Plan to comply with the Codeprovisions regarding the crediting of Service, and not to extend any additionalrights to Associates in ineligible classifications other than as required bythe Code and regulations thereunder.

 

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**ARTICLE THREE—PLAN PARTICIPATION**

 

**3.1****                              ****PARTICIPATION****. **All Associates participating in the Plan as of January1, 2000 shall continue to participate, subject to the terms hereof.

 

Subject to the following provisions of this Section,each other Associate shall become a Participant under the Plan effective as ofthe first Monday of the “calendar quarter” (that is, each three (3) monthperiod beginning January 1, April 1, July 1 or October 1) coincident with ornext following the Associate’s Employment Date.

 

In no event, however, shall any Associate (or otherindividual) participate under the Plan while he is:  (i) included in a unit of Associates covered by a collectivebargaining agreement between the Employer and the Associate representatives underwhich retirement benefits were the subject of good faith bargaining, unless theterms of such bargaining agreement expressly provides for the inclusion in thePlan; (ii) employed as an independent contractor on the payroll records of theEmployer (regardless of any subsequent reclassification by the Employer, anygovernmental agency or court), (iii) employed as a Leased Employee; (iv)employed as a nonresident alien who receives no earned income (within themeaning of Section 911(d)(2) of the Code) from the Employer which constitutesincome from sources within the United States (within the meaning of Section861(a)(3) of the Code); or (v) employed on as an intern.

 

**3.2****                              ****RE-EMPLOYMENT OF FORMERPARTICIPANT****. **A vested Participant (or a nonvested Participant whoseprior Service cannot be disregarded) whose participation ceased because oftermination of employment with the Employer shall resume participating upon hisreemployment; provided, however, that such an individual shall be entitled tocommence elective deferrals as soon as administratively possible following hisreturn to participation in the Plan.

 

**3.3****                              ****TERMINATION OFELIGIBILITY****. **In the event a Participant is no longer a member of aneligible class of Associates and he becomes ineligible to participate, suchAssociate shall resume participating upon his return to an eligible class ofAssociates; provided, however, that such an individual shall be entitled tocommence elective deferrals as soon as administratively possible following hisreturn to participation in the Plan.

 

In the event an Associate who is not a member of aneligible class of Associates becomes a member of an eligible class, suchAssociate shall participate upon becoming a member of an eligible class ofAssociates, if such Associate has otherwise satisfied the eligibilityrequirements of Section 3.1 and would have otherwise previously become aParticipant; provided, however, that such an individual shall be entitled tocommence elective deferrals as soon as administratively possible following hisbecoming a Participant.

 

**3.4****                              ****COMPLIANCE WITH USERRA****. **Notwithstanding any provision of thisPlan to the contrary, for reemployments on or after December 12, 1994,Participants shall receive service credit and be eligible to make deferrals andreceive Employer contributions with respect to periods of qualified

 

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military service (within the meaning of Section414(u)(5) of the Code) in accordance with Section 414(u) of the Code.

 

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**ARTICLEFOUR—ELECTIVE DEFERRALS****,EMPLOYER CONTRIBUTIONS,**

**ROLLOVERS AND TRANSFERS FROM OTHER PLANS**

 

**4.1****         ****ELECTIVE DEFERRALS**

 

(a)                                  *Elections**. *A Participant may elect to defer a portion of hisCompensation for a Plan Year.  Theamount of a Participant’s Compensation that is deferred in accordance with theParticipant’s election shall be withheld by the Employer from the Participant’sCompensation.  The amount deferred onbehalf of each Participant shall be contributed by the Employer to the Plan andallocated to the Participant’s Pre-Tax (401(k)) Contributions Account.

 

(b)                                 *Changes in Election**. *A Participant may prospectively elect tochange or revoke the amount (or percentage) of his elective deferrals duringthe Plan Year by filing a written election with the Employer, or via such othermethod as permitted by applicable law.

 

(c)                                  *Limitations on Deferrals**. *No Participant shall defer on a pre-taxbasis an amount which exceeds $10,000 (or such amount as adjusted forcost-of-living increases under Section 402(g) of the Code) for any calendaryear ending with or within the Plan Year.

 

(d)                                 *Administrative Rules**. *All elections made under this Section4.1, including the amount and frequency of deferrals, shall be subject to therules of the Administrator which shall be consistently applied and which may bechanged from time to time.

 

**4.2****         ****EMPLOYER MATCHINGCONTRIBUTIONS**

 

(a)                                  *Employer Matching Contributions**. *For each Plan Year, the Employer may, inits sole discretion, contribute to the Plan, on behalf of each Participanteligible under Section 4.2(b), a matching contribution equal to a percentage(as determined by the Employer’s board of directors) of the elective deferralsmade by each such Participant; provided, however, that the Employer maydetermine that any such matching contribution shall not exceed a percentage (asdetermined by its board of directors) of each eligible Participant’sCompensation for the Plan Year and may determine to establish a differentmaximum percentage for Highly-Compensated Associates than forNonhighly-Compensated Associates; and provided further, that, to the extentdetermined by the board of directors of First Consulting Group, Inc., anymatching contributions under this Section may be designated as a “loanrepayment contribution” and to the extent of such designation shall be appliedto the repayment of any ASOP Loan designated by First Consulting Group, Inc.

 

(b)                                 *Eligibility for Employer Matching Contributions**. *To be eligible for a share of Employermatching contributions under Section 4.2(a), a Participant must be employed bythe Employer on the last day of the period for which such matching contributionis made to the Plan; provided, however, that any Participant whose employmentwith the Employer was involuntarily terminated by the Employer between December6, 1999 and December

 

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31, 1999 shall nevertheless be entitled to share inany matching contributions made for the period ending December 31, 1999.

 

Notwithstanding the foregoing provisions of thisSection 4.2, in no event shall any Participant who is employed by FCGManagement Services, LLC and who is serving as a dedicated member of theproject staff at New York and Presbyterian Hospital account be eligible toshare in any Employer matching contributions.

 

**4.3****         ****EMPLOYER PROFIT SHARINGCONTRIBUTIONS**

 

(a)                                  *Employer Profit Sharing Contributions**. *As of the last day of a Plan Year, theEmployer may, in its sole discretion, elect to make a profit sharing contributionto the Plan for such year, in cash or in the form of Employer Stock, in anamount determined by the Employer.

 

(b)                                 *Eligibility for Profit Sharing Contributions**. *To be eligible for an allocation of anyEmployer profit sharing contribution made for any Plan Year, a Participant mustbe employed by the Employer on the last day of the Plan Year.

 

(c)                                  *Allocation of Employer Profit Sharing Contributions**. *Any profit sharing contribution underSection 4.3 shall be allocated among eligible Participants in the followingorder of priorities:

 

(1)                                  Such amounts shall first be allocatedamong all eligible Participants based on the ratio that each such Participant’s“Credited Compensation” bears to the total “Credited Compensation” of all sucheligible Participants; provided that the total amount allocated to allParticipants under this step shall not exceed the total “Credited Compensation”of all eligible Participants, multiplied by the greater of five andseven-tenths percent (5.7%) or the percentage equal to the portion of the rateof tax (which is attributable to old-age insurance) under Code Section 3111(a),as said rate is in effect at the beginning of the Plan Year.

 

“Credited Compensation”shall mean the sum of a Participant’s Compensation, plus his Compensation inexcess of the FICA taxable wage base that is in effect on the first day of thePlan Year.

 

(2)                                  The balance of the availablecontribution, if any, shall be allocated among all eligible Participants basedon the ratio that each such Participant’s Compensation bears to the totalCompensation of all such eligible Participants.

 

Notwithstanding the foregoing provisions of thisSection 4.3, to the extent determined by the board of directors of FirstConsulting Group, Inc., any profit sharing contributions under this Section 4.3may be designated as “loan repayment contributions” and to the extent of suchdesignation shall be applied to the repayment of any ASOP Loan designated byFirst Consulting Group, Inc..  In theevent of such a determination and designation, such profit sharingcontributions shall not be allocated in accordance with the foregoingprovisions of this

 

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subsection (c), but shall be allocated in theproportion that each such eligible Participant’s Compensation bears to theCompensation of all eligible Participants.

 

**4.4****                              ****SPECIAL CONTRIBUTION FORCERTAIN PARTICIPANTS****.** As of the last day of each calendar quarter, the Employer may, in itssole discretion, cause FCG Management Services, LLC to make a “special”contribution on behalf of each eligible Participant employed by FCG ManagementServices, LLC serving as a dedicated member of the project staff at the NewYork Presbyterian Hospital account (a “FCGMS-NYPH Associate”) in an amount determinedas follows:

 

(i)                                     Each FCGMS-NYPH Associate employed at the“Manager” level and above, and any other FCGMS-NYPH Associate who was entitledto receive a nine percent (9%) cash balance contribution under The New YorkHospital Employees’ Retirement Plan as of December 31, 1999, shall be entitledto receive a special contribution in an amount equal to nine percent (9%) ofhis Compensation for such “calendar quarter” (that is, each three (3)-monthperiod beginning January 1, April 1, July 1 or October 1).

 

(ii)                                  Each other FCGMS-NYPH Associate who wasan active participant in the New York Hospital Employees’ Retirement Plan priorto January 1, 1992 shall be entitled to receive a special contribution in anamount based on his “Years of Creditable Service”, as defined below, determinedas follows:

 

| **Years of  Creditable Service** |   | **Percentage  of Compensation  Each Calendar Quarter** |   |
|----------------------------------|--------|--------------------------------------------------------|--------|
| 1 through 4                      |   | 5                                                      | %      |
| 5 through 9                      |   | 6                                                      | %      |
| 10 through 14                    |   | 7                                                      | %      |
| 15 through 19                    |   | 8                                                      | %      |
| 20 through 24                    |   | 10                                                     | %      |
| 25 through 29                    |   | 12                                                     | %      |
| 30 and over                      |   | 15                                                     | %      |

 

(iii)                               All other FCGMS-NYPH Associates shall beentitled to receive a special contribution in an amount based on his Years ofCreditable Service as follows:

 

| **Years of  Creditable Service** |   | **Percentage  of Compensation  Each Calendar Quarter** |   |
|----------------------------------|--------|--------------------------------------------------------|--------|
| 1 through 4                      |   | 5                                                      | %      |
| 5 through 9                      |   | 6                                                      | %      |
| 10 through 14                    |   | 7                                                      | %      |
| 15 through 19                    |   | 8                                                      | %      |
| 20 and over                      |   | 10                                                     | %      |

 

In order to be eligible for the special contributionsset forth in this Section 4.4, each FCGMS-NYPH Associate must have beencredited with at least one (1) Year of Creditable Service and

 

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must be employed by FCG Management Services, LLC onthe last day of the calendar quarter for which the special contribution is tobe made.

 

For purposes of this Section 4.4, each such FCGMS-NYPHAssociate’s Year(s) of Creditable Service as of January 1, 2000 shall be suchnumber of such years as determined under the provisions of The New YorkHospital Employees’ Retirement Plan as in effect through December 31, 1999.  Thereafter, each FCGMS-NYPH Associate shallbe credited with an additional Year of Creditable Service for each Year ofVesting Service completed under the Plan after December 31, 1999.

 

**4.5****                              ****ROLLOVERS AND TRANSFERSOF FUNDS FROM OTHER PLANS****. **With the approval of the Administrator, there may bepaid to the Trustee amounts which have been held under other plans qualifiedunder Code Section 401 either (a) maintained by the Employer which havebeen discontinued or terminated with respect to any Associate, or(b) maintained by another employer with respect to which any Associate hasceased to participate.  Any suchtransfer or rollover may also be made by means of an Individual RetirementAccount qualified under Section 408 of the Code, where the IndividualRetirement Account was used as a conduit from the former plan.  Any amounts so transferred on behalf of anyAssociate shall be nonforfeitable and shall be maintained under theParticipant’s Rollover Account.

 

**4.6****                              ****TIMING OF CONTRIBUTIONS****. **Employer contributions shall be made tothe Plan no later than the time prescribed by law for filing the Employer’sFederal income tax return (including extensions) for its taxable year endingwith or within the Plan Year.  Electivedeferrals under Section 4.1 shall be paid to the Plan as soon as administrativelypossible, but no later than the fifteenth (15th) business day of themonth following the month in which such deferrals would have been payable tothe Participant in cash, or such later date as permitted or prescribed by theDepartment of Labor.

 

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**ARTICLEFIVE—ACCOUNTING RULES**

 

**5.1****         ****INVESTMENT OF ACCOUNTSAND ACCOUNTING RULES**

 

(a)                                  *Investment Funds**. *Subject to the provisions of Article Seven A andSection 8.5 below, the investment of Participants’ Accounts shall be made in amanner consistent with the provisions of the Trust.  The Administrator, in its discretion, may allow the Trust toprovide for separate funds for the directed investment of all or a portion ofeach Participant’s Account.

 

However, any Employer matching contributions and FirstShare Contributions made after December 31, 1995 and prior to January 1,2000 shall be invested primarily in Employer Stock.  Any Employer matching contributions made after December 31, 1999shall be made in the form of Employer Stock or in the form of cash (theinvestment of such cash shall in turn be subject to the Participant’sdirection) as each such Participant may elect prior to the beginning of suchPlan Year, in accordance with procedures established by the Administrator.

 

(b)                                 *Participant Direction of Investments**. *Each Participant may direct how hisAccount (or such portion thereof which is subject to his investment direction)is to be invested among the available investment funds in the percentagemultiples established by the Administrator. In the event a Participant fails to make an investment election, withrespect to all or any portion of his Account subject to his investmentdirection, the Trustee shall invest all or such portion of his Account in theinvestment fund to be designated by the Administrator.  A Participant may change his investmentelection, with respect to future contributions and, if applicable, forfeitures,and/or amounts previously accumulated in the Participant’s Account in accordancewith procedures established by the Administrator.  Any such change in a Participant’s investment election shall beeffective at such time as may be prescribed by the Administrator.  If the Plan’s recordkeeper or investmentsare changed, the Administrator may apply such administrative rules andprocedures as are necessary to provide for the transfer of records and/orassets, including without limitation, the suspension of Participant’sinvestment directions, withdrawals and distributions for such period of time asis necessary, and the transfer of Participants’ Accounts to designated funds oran interest bearing account until such change has been completed.

 

(c)                                  *Allocation of Investment Experience**. *As of each Valuation Date, the investmentfund(s) of the Trust shall be valued at fair market value, and the income,loss, appreciation and depreciation (realized and unrealized), and any paidexpenses of the Trust attributable to such fund shall be apportioned amongParticipants’ Accounts within the fund based upon the value of each Accountwithin the fund as of the preceding Valuation Date.

 

**5.2****                              ****PARTICIPANTS OMITTED INERROR****. **In theevent a Participant is not allocated a share of the Employer contributionand/or forfeitures as a result of an administrative error in any Plan Year, theEmployer may elect to either (a) make an additional contribution on behalfof such

 

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omitted Participant in an appropriate amount, or(b) deduct the appropriate amount from the next succeeding Employercontribution and/or forfeitures and allocate such amount to the Participant’sAccount.

 

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**ARTICLESIX—VESTING****, RETIREMENT ANDDISABILITY BENEFITS**

 

**6.1****                              ****VESTING****. **A Participant shall at all times have anonforfeitable (vested) right to any amounts credited to his Pre-Tax (401(k))Contributions Account and his Rollover Account.

 

Except as otherwise provided with respect to Early orNormal Retirement, Disability or death, the vested interest of each Participantto any amounts credited to his Matching Contributions Account, his ASOPMatching Contributions Account, his First Share Account, his Profit SharingAccount, his ASOP Profit Sharing Account and his Special Contribution Accountshall be determined in accordance with the following table:

 

| **Years of Vesting Service** |   | **Vested  Percentage** |   |
|------------------------------|--------|------------------------|--------|
|                         |   |                   |   |
| *Less  than 1 year*          |   | *0*                    | *%*    |
| *1  year but less than 2*    |   | *20*                   | *%*    |
| *2  years but less than 3*   |   | *40*                   | *%*    |
| *3  years but less than 4*   |   | *60*                   | *%*    |
| *4  years but less than 5*   |   | *80*                   | *%*    |
| *5  years and thereafter*    |   | *100*                  | *%*    |

 

**6.2****                              ****FORFEITURE OF NONVESTEDBALANCE****. **The nonvested portion of a Participant’s Account, asdetermined in accordance with Section 6.1, shall be forfeited as soon asadministratively practical following the earlier of (i) the date on which theParticipant receives distribution of his vested Account or (ii) the last day ofthe Plan Year in which occurs the fifth (5th) year anniversary ofhis separation from Service.  The amountforfeited shall be used to pay Plan expenses and/or used to reduce Employercontributions the Plan.

 

If the Participant returns to the employment of theEmployer prior to incurring five (5) consecutive Breaks in Service, and priorto receiving distribution of his vested Account, the nonvested portion shall berestored.  However, if the nonvestedportion of the Participant’s Account was allocated as a forfeiture as theresult of the Participant receiving distribution of his vested Account balance,the nonvested portion shall be restored if:

 

(a)                                  the Participant resumes employment priorto incurring five (5) consecutive Breaks in Service; and

 

(b)                                 the Participant repays to the Plan, as ofthe earlier of (i) the date which is five (5) years after his reemployment dateor (ii) the date which is the last day of the period in which the Participantincurs five (5) consecutive Breaks in Service, an amount equal to the totaldistribution made to the Participant.

 

The nonvested amount shall be restored to theParticipant’s Account, without interest or adjustment for interim Trustvaluation experience, by a special Employer contribution or from the nextsucceeding Employer contribution and forfeitures, as appropriate.

 

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**6.3****                              ****DISTRIBUTION OF LESSTHAN****ENTIRE VESTED ACCOUNT BALANCE. **If a distribution (including a withdrawal) of anyportion of a Participant’s Account is made to the Participant at a time when hehas a vested percentage in such Account equal to less than one-hundred percent(100%), a separate record shall be maintained of said Account balance.  The Participant’s vested interest at anytime in this separate account shall be an amount equal to the formula *P(AB+D)-D,*where*P*is the vested percentage at the relevant time, *AB* is the Account balance atthe relevant time, and *D* is the amount of the distribution (orwithdrawal) made to the Participant.

 

**6.4****                              ****NORMAL RETIREMENT****. **A Participant who is in the employment ofthe Employer at his Normal Retirement Date shall have a nonforfeitable interestin one hundred percent (100%) of his Account, if not otherwise one hundredpercent (100%) vested under the vesting schedule in Section 6.1.  A Participant who continues employment withthe Employer after his Normal Retirement Date shall continue to participateunder the Plan.

 

**6.5****                              ****DISAB****ILITY. **If a Participant incurs a Disability, theParticipant shall have a nonforfeitable interest in one hundred percent (100%)of his Account, if not otherwise one hundred percent (100%) vested under thevesting schedule in Section 6.1.  Paymentof such Participant’s Account balance shall be made at the time and in themanner specified in Article Seven, following receipt by the Administrator ofthe Participant’s written distribution request.

 

**6.6****                              ****EARLY RETIREMENT****. **A Participant who separates from Serviceon or after the later of (i) the date the Participant attains age fifty-five(55) or (ii) the fifth (5th) anniversary of the Participant’scommencement of initial Plan participation shall have a nonforfeitable interestin one hundred percent (100%) of his Account, if not otherwise one hundredpercent (100%) vested under the vesting schedule in Section 6.1

 

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**ARTICLESEVEN—MANNER AND TIME OF DISTRIBUTING BENEFITS**

 

**7.1****                              ****MANNER OF PAYMENT****. **Subject to the provisions of Section 7.5and/or Section 7.9, the Participant’s vested Account shall be distributedto the Participant (or to the Participant’s Beneficiary in the event of theParticipant’s death) by either of the following methods, as elected by theParticipant or, when applicable, the Participant’s Beneficiary:

 

(a)           in a single lump-sum payment; or

 

(b)                                 provided the Participant’s vested Accountexceeds $3,500 (or, effective for Plan Years beginning after December 31, 1997,$5,000), in periodic installments (at least annual), subject to the minimumdistribution rules of Section 7.4; or

 

(c)                                  by purchase of a nontransferable annuityfrom an insurance company; or

 

(d)                                 to the extent the Participant’s vestedAccount is invested in Employer Stock, in a single payment in the form of wholeshares of Employer Stock, with any fractional shares, and the cash and cashequivalent portions of such Stock, being distributed in cash.

 

**7.2**                               **TIME OF COMMENCEMENT****OF BENEFIT PAYMENTS. **Subject tothe following provisions of this Section, unless the Participant electsotherwise, distribution of the Participant’s vested Account shall be made orcommence no later than the sixtieth (60) day after the later of the close ofthe Plan Year in which:  (a) theParticipant attains age sixty-five (65) (or Normal Retirement Date, if earlier)or (b) the date the Participant terminates Service with the Employer.

 

Notwithstanding the foregoing, if the Participant’svested Account does not exceed $3,500 (or, effective for Plan Years beginningafter December 31, 1997, $5,000), the Participant’s vested Account shall bedistributed to the Participant (or, in the event of the Participant’s death,his Beneficiary) in a lump-sum payment as soon as administratively practicablefollowing the date the Participant retires, dies or otherwise separates fromService.

 

Notwithstanding any provision contained herein to thecontrary, a Participant who is not vested in any portion of his Account balanceattributable to Employer contributions shall be deemed to have receiveddistribution of such portion of his Account as of the end of the Plan Yearfollowing the Plan Year in which he separates from Service.

 

For years beginning after December 31, 1996, in noevent shall distribution of the Participant’s vested Account be made orcommence later than the April 1st following the end of the calendar year inwhich the Participant attains age seventy and one-half (701⁄2), or, except for aParticipant who is a five percent (5%) owner of the Employer (within themeaning of Section 401(a)(9) of the Code), if later, the April 1st followingthe calendar year in which the Participant retires or otherwise separates fromService.  In addition, any Participantattaining age seventy and one-half (701⁄2) may elect to receive distribution ofhis vested Account in accordance with the provisions of this Article Seven.

 

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**7.3****                              ****FURNISHING INFORMATION****. **Prior to the payment of any benefit underthe Plan, each Participant or Beneficiary may be required to complete suchadministrative forms and furnish such proof as may be deemed necessary orappropriate by the Employer, Administrator, and/or Trustee.

 

**7.4****                              ****MINIMUM DISTRIBUTION****RULES FOR INSTALLMENT PAYMENTS. **Ifa distribution is made in installments the following rules shall apply:

 

(a)                                  *Payments to Participant or to Participant and SurvivingSpouse**. *Paymentshall commence no later than a date provided for in Section 7.2.  The amount to be distributed each year shallbe at least equal to the vested balance in the Participant’s Account as of thepreceding Valuation Date multiplied by the following fraction:  the numerator shall be one (1) and thedenominator shall be the life expectancy of the Participant (or the joint lifeexpectancies of the Participant and the Participant’s spouse) determined as ofthe Valuation Date preceding the first payment and reduced by one for eachsucceeding year.

 

(b)                                 *Payments to Participant and Non-Spouse Beneficiary**. *Payment shall commence no later than adate provided for in Section 7.2.  Theamount to be distributed each year shall be at least equal to the vestedbalance in the Participant’s Account as of the preceding Valuation Datemultiplied by the following fraction: the numerator shall be one (1) and the denominator shall be the jointlife expectancies of the Participant and the Participant’s Beneficiary computedas of the Valuation Date preceding the first payment and reduced by one (1) foreach succeeding year.  Payments shall berestricted under this option to insure compliance with the minimum distributionincidental death benefit requirement of Section 401(a)(9) of the Code and theregulations promulgated thereunder.

 

(c)                                  *Payments to Beneficiary**. *Payment shall commence no later than adate provided for in Section 7.8.  Theamount to be distributed each year shall be at least equal to the vestedbalance in the Participant’s Account as of the preceding Valuation Datemultiplied by the following fraction: the numerator shall be one (1) and the denominator shall be the lifeexpectancy of the Participant’s Beneficiary computed as of the Valuation Datepreceding the first payment and reduced by one (1) for each succeeding year.

 

(d)                                 *Recalculation of Life Expectancy**. *If distribution is to be made over thelife expectancy of the Participant or, where the Participant’s spouse is hisBeneficiary, the life expectancy of the Participant’s surviving spouse, or thejoint life expectancies of the Participant and his spouse, such life expectancyor joint life expectancies shall not be recalculated.

 

**7.5****                              ****JOINT AND SURVIVOR****ANNUITY. **Notwithstanding the foregoing provisionsof this Article Seven, except for the portion of the Participant’s vestedAccount, if any, which is payable in the form of whole shares of Employer Stockpursuant to Section 7.1(d), the provisions of this Section 7.5 shall apply toany distribution made to a Participant following his retirement or othertermination of employment.

 

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(a)                                  ***AnnuityForm of Payment: ***If distribution of a Participant’s vestedAccount balance commences during his lifetime, his vested Account shall beapplied to the purchase of a *“single life annuity”*for a Participantwho is unmarried as of his benefit commencement date, or if the Participant ismarried as of his benefit commencement date, applied to the purchase of a *“qualifiedjoint and survivor annuity”.*

 

A *“qualified joint and survivor annuity”* isan immediate annuity for the life of the Participant with a survivor annuityfor the life of the spouse which is not less than fifty percent (50%), and notmore than one hundred percent (100%), of the amount of the annuity which ispayable during the joint lives of the Participant and his spouse.

 

A *“single life annuity”*is an annuity forthe life of the Participant.

 

(b)                                 ***Waiverof Annuity: ***The Participant may, at any time duringthe *“electionperiod”,*elect to waive the annuity form of payment described aboveand elect either an optional form of payment set forth under Section 7.1 or electan alternative form of annuity payment provided under the Plan.  These additional annuity options include fora married Participant a single life annuity, and for an unmarried Participant ajoint and 50%, 75% or 100% survivor annuity.

 

The *“election period”* under this Section shallbe the ninety (90)-day period prior to the “annuity starting date,” which dateshall be the first day of the first period in which an amount is payable as anannuity or, if such benefit is not payable as an annuity, the first day onwhich the Participant may begin to receive distribution from the Plan.

 

An election to waive the applicable annuity form ofpayment under the Plan must be made in writing in a form acceptable to theAdministrator.  In addition, an electionby a married Participant to waive the qualified joint and survivor annuityshall not take effect unless (1) the Participant’s spouse consents inwriting to the election, (2) the election designates a specific alternateBeneficiary, if applicable, including any class of Beneficiaries or anycontingent Beneficiaries, which may not be changed without spousal consent(unless the Participant’s spouse expressly permits designations by theParticipant without any further spousal consent), (3) the spouse’s consentacknowledges the effect of the election, and (4) the spouse’s consent iswitnessed by a notary public.  Inaddition, the Participant’s waiver of a qualified joint and survivor annuityshall not be effective unless the election designates a form of benefit paymentwhich may not be changed without spousal consent (or the Participant’s spouseexpressly permits designation by the Participant without any further spousalconsent).  Notwithstanding theforegoing, spousal consent hereunder shall not be required if it is establishedto the satisfaction of the Administrator that the spouse’s consent cannot beobtained because such spouse cannot be located, or because of such othercircumstances as may be prescribed in regulations pursuant to Section 417 ofthe Code.

 

Any consent by a spouse obtained under this Section(or establishment that the consent of such spouse cannot be obtained) shall beeffective only with respect to such spouse. A consent that permits designations by the Participant without anyrequirement of further consent by such spouse must acknowledge that the spousehas the right to limit consent to

 

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a specific Beneficiary, and a specific form of benefitwhere applicable, and that the spouse voluntarily elects to relinquish eitheror both of such rights.  No consentobtained under this provision shall be valid unless the Participant hasreceived notice as provided below.  Inaddition, any waiver made in accordance with this Section may be revoked at anytime prior to the commencement of benefits under the Plan.  A Participant is not limited to the numberof revocations or elections that may be made hereunder.

 

(c)                                  ***NoticeRequirement: ***The Administrator shall provide to eachParticipant, not more than ninety (90) days prior to the commencement ofbenefits, a written explanation of:

 

(1)                                  the terms and conditions of the qualifiedjoint and survivor annuity or life annuity;

 

(2)                                  the Participant’s right to waive suchapplicable annuity and the effect of such waiver;

 

(3)                                  the rights of the Participant’s spouseregarding the required consent to an election to waive the qualified joint andsurvivor annuity; and

 

(4)                                  the right to make, and the effect of, arevocation of an election to waive the applicable annuity.

 

(d)                                 ***Restrictions: ***Notwithstanding anything contained herein to thecontrary, if the vested balance of the Participant’s Account does not exceed$3,500 (or, effective for Plan Years beginning after December 31, 1997,$5,000), distribution of the Participant’s vested Account shall be made in theform of a lump sum payment.  However, nodistribution shall be made pursuant to this subsection after the first day ofthe first period for which an amount is received as an annuity unless theParticipant and the Participant’s spouse, if applicable, consent in writing tosuch distribution.  For purposes of thissubsection, “vested balance of a Participant’s Account” shall mean theaggregate value of a Participant’s vested Account balance attributable toEmployer contributions, elective deferrals and rollover contributions, ifapplicable, whether vested before or upon the death of a Participant.

 

**7.6****         ****AMOUNT OF DEATH BENEFIT**

 

(a)                                  *Death Before Termination of Employment**. *In the event of the death of aParticipant while in the employ of the Employer, vesting in the Participant’sAccount shall be one hundred percent (100%), if not otherwise one hundredpercent (100%) vested under Section 6.1, with the credit balance of theParticipant’s Account being payable to his Beneficiary.

 

(b)                                 *Death After Termination of Employment**. *In the event of the death of a formerParticipant after termination of employment, but prior to the completedistribution of his vested Account balance under the Plan, the undistributedvested balance of the Participant’s Account shall be paid to the Participant’sBeneficiary.

 

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**7.7****                              ****DESIGNATION OFBENEFICIARY****. **Each Participant shall file with the Administrator adesignation of Beneficiary to receive payment of any death benefit payablehereunder if such Beneficiary should survive the Participant.  However, no Participant who is married shallbe permitted to designate a Beneficiary other than his spouse unless theParticipant’s spouse has signed a written consent witnessed by a notary public,which provides for the designation of an alternate Beneficiary.

 

Subject to the above, Beneficiary designations mayinclude primary and contingent Beneficiaries, and may be revoked or amended atany time in similar manner or form, and the most recent designation shallgovern.  A designation of a Beneficiarymade by an unmarried Participant shall cease to be effective upon hismarriage.  In the absence of aneffective designation of Beneficiary, the Participant’s vested Account shall bepaid to the surviving spouse of the Participant, or, if no surviving spouse, tothe Participant’s surviving issue, by right of representation, or, if none, tothe Participant’s surviving parents, or, if none, to the Participant’ssurviving brothers and sisters and nephews and nieces who are children ofdeceased brothers and sisters, or, if none, to the Participant’s estate.  Notification to Participants of the deathbenefits under the Plan and the method of designating a Beneficiary shall begiven at the time and in the manner provided by regulations and rulings underthe Code.

 

In the event of the death of a Beneficiary who hasbecome entitled to receive benefits under the Plan, any benefits remaining tobe paid to the Beneficiary shall be paid to his estate.

 

**7.8****                              ****DISTRIBUTION OF DEATHBENEFITS****. **Subject to the provisions of Section 7.2 and 7.9below, if applicable, the Beneficiary shall be allowed to designate the mode ofreceiving benefits in accordance with Section 7.1, unless the Participant haddesignated a method in writing and indicated that the method was not revocableby the Beneficiary.

 

(a)                                  *Distribution Beginning Before Death**.*  If the Participant dies after distributionof his vested Account has commenced, any survivor’s benefit must be paid atleast as rapidly as under the method of payment in effect at the time of theParticipant’s death.

 

(b)                                 *Distribution Beginning After Death**. *If the Participant dies beforedistribution of his vested Account has commenced, distribution of the Participant’svested Account shall be completed by December 31 of the calendar yearcontaining the fifth anniversary of the Participant’s death, except as providedbelow:

 

(i)                                     if any portion of the Participant’svested Account is payable to a designated Beneficiary, and if distribution isto be made over the life or over a period certain not greater than the lifeexpectancy of the designated Beneficiary (pursuant to the provisions of Section7.1 above) such payments shall commence on or before December 31 of the calendaryear immediately following the calendar year in which the Participant died;

 

(ii)                                  if the designated Beneficiary is theParticipant’s surviving spouse, the date distribution is required to beginshall not be earlier than the later of (A) December

 

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31 of the calendar year immediately following thecalendar year in which the Participant died and (B) December 31 of the calendaryear in which the Participant would have attained age seventy and one-half (701⁄2).

 

For purposes of this paragraph (b), if the survivingspouse dies after the Participant, but before payments to such spouse begin,the provisions of this paragraph, with the exception of paragraph (ii) herein,shall be applied as if the surviving spouse were the Participant.

 

Notwithstanding the foregoing, if the Participant hasno designated Beneficiary (within the meaning of Section 401(a)(9) of the Codeand the regulations thereunder), distribution of the Participant’s vestedAccount must be completed by December 31 of the calendar year containing thefifth anniversary of the Participant’s death.

 

 

**7.9****                              ****QUALIFIED PRE-RETIREMENT****SURVIVOR ANNUITY. **Notwithstanding the foregoing provisionsof this Article Seven, the provisions of this Section 7.9 shall apply in theevent a Participant dies before distribution of benefits has commenced and issurvived by his spouse.

 

(a)                                  If a Participant dies before distributionof benefits has commenced and is survived by his spouse, his vested Accountbalance, if payable to the Participant’s surviving spouse, shall be applied tothe purchase of an annuity for the life of the Participant’s survivingspouse.  The Participant’s survivingspouse may commence the payment of the qualified pre-retirement survivorannuity under this Section within a reasonable period following theParticipant’s death.

 

(b)                                 The Participant may elect to waive suchsurvivor annuity death benefit during the period commencing on the first day ofthe Plan Year in which the Participant attains age thirty-five (35) (or thedate he terminates employment, if earlier) and ending on the date of hisdeath.  Any such election, however,shall not take effect unless it is accompanied by the written consent of theParticipant’s spouse, which consent acknowledges the effect of such electionand is witnessed by a notary public.  AParticipant who will not yet attain age thirty-five (35) as of the end of anycurrent Plan Year may make a special qualified election to waive the qualifiedpre-retirement survivor annuity for the period beginning on the date of suchelection and ending on the first day of the Plan Year in which the Participantwill attain age thirty-five (35).  Suchelection shall not be valid unless the Participant receives a writtenexplanation of the qualified pre-retirement survivor annuity in such terms asare comparable to the explanation required under Section 7.9(c).  Qualified pre-retirement survivor annuitycoverage shall be reinstated automatically as of the first day of the Plan Yearin which the Participant attains age thirty-five (35).  Any new waiver on or after such date shallbe subject to the full requirements of this Section.

 

The election to waive such survivor annuity deathbenefit must be made in writing in a form acceptable to the Administrator andmust include the Participant’s designation of a Beneficiary.  The designation of a Beneficiary may not bechanged unless a new consent is signed by the Participant’s spouse.

 

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In the event of such an election, hereunder, any deathbenefit shall be paid to the Participant’s Beneficiary in a manner selected bythe Beneficiary or Participant subject to the provisions of Section 7.8.

 

(c)                                  The Administrator shall furnish to eachParticipant, subject to the provisions of this Section 7.9, a writtenexplanation of:  (1) the terms andconditions of the survivor annuity death benefit; (2) the Participant’sright to make, and the effect of, an election to waive the survivor annuitydeath benefit, and to revoke such election; and (3) the right of theParticipant’s spouse to prevent such an election by withholding the necessaryconsent.  Such explanation shall beprovided to the Participant within the period beginning on the later of thefirst day of the Plan Year in which the Participant attains age thirty-two (32)and ending on the last day of the Plan Year preceding the Plan Year in whichthe Participant attains age thirty-five (35), or within a reasonable periodafter the Participant commences participation in the Plan, or after theParticipant separates from Service if the Participant has not attained agethirty-five (35) at the time of his separation from Service.

 

For purposes of the preceding paragraph, a “reasonableperiod” shall mean the end of the two (2)-year period beginning one (1) yearprior to the date the applicable event occurs, and ending one (1) year afterthat date.  In the case of a Participantwho separates from Service before the Plan Year in which age thirty-five (35)is attained, notice shall be provided within the two (2) year period beginningone (1) year prior to separation and ending one (1) year after separation.  If such a Participant thereafter returns toemployment with the Employer, the applicable period for such Participant shallbe redetermined.

 

Following the Participant’s death, if such deathbenefit is to be paid to the Participant’s surviving spouse in the form of asurvivor annuity, the surviving spouse may elect to waive the survivor annuityand receive any optional form of death benefit available under the Plan.

 

Notwithstanding the foregoing, the provisions of thisSection shall not apply if the vested balance of the Participant’s Account doesnot exceed $3,500 (or, effective for Plan Years beginning after December 31,1997, $5,000).

 

**7.10****                       ****ELIGIBLE ROLLOVER****DISTRIBUTIONS. **Notwithstanding the foregoing provisionsof this Article Seven, the provisions of this Section 7.10 shall apply todistributions made under the Plan.

 

(a)                                  A distributee may elect, at the time andin the manner prescribed by the Administrator, to have any portion of aneligible rollover distribution paid directly to an eligible retirement planspecified by the distributee in a direct rollover.

 

(b)                                 Definitions:

 

(i)                                     *Eligible Rollover Distribution*. An eligible rollover distribution is any distribution of all or anyportion of the balance to the credit of the distributee, except that an

 

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eligible rollover distribution does not include:  any distribution that is one of a series ofsubstantially equal periodic payments (not less frequently than annually) madefor the life (or life expectancy) of the distributee or the joint lives (orjoint life expectancies) of the distributee and the distributee’s designatedBeneficiary, or for a specified period of ten (10) years or more; anydistribution to the extent such distribution is required under Section401(a)(9) of the Code; any withdrawals of elective deferrals pursuant toSection 8.2; and the portion of any distribution that is not includable ingross income (determined without regard to the exclusion for net unrealizedappreciation with respect to employer securities).

 

(ii)                                  *Eligible Retirement Plan*.  An eligibleretirement plan is an individual retirement account described in Section 408(a)of the Code, an individual retirement annuity described in Section 408(b) ofthe Code, an annuity plan described in Section 403(a) of the Code or aqualified trust described in Section 401(a) of the Code, that accepts thedistributee’s eligible rollover distribution. However, in the case of an eligible rollover distribution to thesurviving spouse, an eligible retirement plan is an individual retirementaccount or individual retirement annuity.

 

(iii)                               *Distributee*.  A distributeeincludes an Associate or former Associate. In addition, the Associate’s or former Associate’s surviving spouse andthe Associate’s or former Associate’s spouse or former spouse who is thealternate payee under a qualified domestic relations order, as defined inSection 414(p) of the Code, are distributees with regard to the interest of thespouse or former spouse.

 

(iv)                              *Direct Rollover*.  A directrollover is a payment by the Plan to the eligible retirement plan specified bythe distributee.

 

(c)                                  If a distribution is one to whichSections 401(a)(11) and 417 of the Code do not apply, such distribution maycommence less than thirty (30) days after the notice required underSection 1.411(a)-11(c) of the Income Tax Regulations is given, provided that:

 

(i)                                     the Administrator clearly informs theParticipant that the Participant has a right to a period of at least thirty(30) days after receiving the notice to consider the decision of whether or notto elect a distribution (and, if applicable, a particular distribution option),and

 

(ii)                                  the Participant, after receiving thenotice, affirmatively elects a distribution.

 

(d)                                 Effective January 1, 1997, if adistribution is one to which Sections 401(a)(11) and 417 of the Code applies,the distribution may commence less than thirty (30) days, but not less thanseven (7) days, after the notice required under Section 1.411(a)-11(c) of theIncome Tax Regulations is given, provided that the requirements of paragraphs(c)(i) and (c)(ii) above are satisfied with respect to both the Participant andthe Participant’s spouse, if applicable.

 

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**ARTICLESEVEN A—SPECIAL EMPLOYER STOCK PROVISIONS**

 

**7A.1****                     ****VALUATION OF EMPLOYER****STOCK.**  The Administrator or Trusteeshall ascertain the value of Employer Stock in accordance with the requirementsof Section 401(a)(28) of the Code and the applicable regulations promulgatedthereunder.  All valuations relied uponfor purposes of any purchase, exchange or distribution by the Plan of EmployerStock not readily tradable on an established securities market shall be made byan independent appraiser meeting requirements similar to those contained inTreasury Regulations pursuant to Section 170(a)(1) of the Code.  The Administrator’s records shall reflectthe tax cost or adjusted basis of all shares of Employer Stock acquiredpursuant to the Plan.

 

**7A.2****                     ****ALLOCATION OF EMPLOYER****STOCK PURCHASED WITH PROCEEDS OF ASOP LOAN.** Pursuant to the provisions of Article Nine, the Trustee may be directedby the Employer to borrow money for the purpose of acquiring shares of EmployerStock.  While any such ASOP Loan orportion thereof remains outstanding, such shares of Employer Stock shall beheld in a suspense account and shall be allocated among the ASOP Accounts ofParticipants, in accordance with the provisions of Article Nine, at such timeand in such amounts as the ASOP Loan has been reduced by principal payments, orif appropriate, principal and interest payments.  For purposes of Article Twelve, the Annual Addition of eachParticipant for any Plan Year in which allocations are made pursuant to theprovisions of this Section 7A.2 shall be calculated by reference to the amountof Employer contributions applied to payments under the ASOP Loan, rather than tothe current value of shares of Employer Stock released from the suspenseaccount.

 

**7A.3****                     ****PRIVILEGES ANDRESTRICTIONS****ON EMPLOYER STOCK; INGENERAL. **Subject to Section 7A.4, any sharesof Employer Stock contributed to or otherwise acquired by the Trust ordistributed to a Participant, Former Participant or Beneficiary pursuant to thePlan may be made subject to such lawful rights, privileges or restrictions asthe Employer may, from time to time, confer or impose, including, withoutlimitation, a right on the part of the distributee to cause the Employer topurchase the securities or any portion thereof, a right of first refusal in theEmployer or the Trust to purchase all or any portion of the securities thereoffrom the distributee, and restrictions on transfer whether arising underapplicable securities laws or otherwise; provided, however, that the Employershall not confer any such rights or privileges or impose any such restrictionsin a manner that discriminates in favor of Participants who are Highly-CompensatedAssociates.  The Employer shall fromtime to time notify the Administrator and the Trustee of any rights, privilegesor restrictions that will be applicable to shares of securities contributed to,acquired by, or distributed from the Trust.

 

**7A.4****                     ****PRIVILEGES AND****RESTRICTIONS APPLICABLE TO SECURITIES ACQUIRED WITH ASOPLOAN. **Notwithstanding any other provision of the Plan or theTrust Agreement, the following terms or conditions shall at all times apply toany shares of Employer Stock acquired with proceeds of an ASOP Loan:

 

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(a)                                  *Right of First Refusal**. *Shares of Employer Stock acquired withthe proceeds of an ASOP Loan may, but need not be, subject to a right of firstrefusal which meets the requirements of this paragraph (a).  Securities subject to a right must be stockor an equity security, or a debt security convertible into stock or an equitysecurity, and must not be publicly traded at the time the right may beexercised.  The right of first refusalmay be in favor of the Employer, the Trust or both in any order ofpriority.  The selling price and otherterms under the right must not be less favorable to the seller than the greaterof the value of the security determined under Treasury Regulations Section54.4975-11(d)(5), or the purchase price and other terms offered by a buyer,other than the Employer or the Trust, making a good faith offer to purchase thesecurity.  The right of first refusalmust lapse no later than 14 days after the security holder gives to the holderof the right written notice that an offer by a third party to purchase thesecurity has been received.

 

(b)                                 *Put Option.** *Shares of Employer Stock acquired with the proceeds ofan ASOP Loan must be subject to a put option, if at the time of theirdistribution such shares are either subject to a trading limitation, or is notpublicly traded.  For purposes of thisparagraph (b), a “trading limitation” on a security is a restriction under anyfederal or state securities law, any regulation thereunder, or an agreement,not prohibited by Treasury Regulations Section 54.4975-7(b) affecting thesecurity so as to make the security not as freely tradable as one not subjectto such a restriction.  The put optionmust be exercisable only by a Participant, former Participant or Beneficiary(any and all such persons being hereinafter in this Section 7.4A referred togenerally as the “Participant”) or by any donee of the Participant or by aperson to whom the security passes by reason of a Participant’s death.  The put option must permit a Participant toput the security to the Employer, and it may grant the Trust an option toassume the rights and obligations of the Employer at the time that the putoption is exercised, but under no circumstances may the put option bind theTrust.  If federal or state law will beviolated by the Employer’s honoring such a put option, the put option mustpermit the security to be put, in a manner consistent with such law, to a thirdparty (for example, but without limitation, to a related employer or ashareholder other than the Trust) that has substantial net worth at the timethe ASOP Loan is made and whose net worth is reasonably expected to remainsubstantial.

 

(c)                                  *Duration of Put Option*:

 

(1)                                  General Rule. A put option may be exercisable at any time during a period whichincludes at least (A) sixty (60) days beginning on the date the securitysubject to the put option is distributed by the Trustee and (B) sixty (60) daysin the next following Plan Year, in accordance with regulations issued pursuantto Section 409 of the Code.

 

(2)                                  Special Rule. In the case of a security that is publicly traded without restrictionswhen distributed, but ceases to be so traded within the put option period(s)set forth in subparagraph (1), the Employer must notify each security holder inwriting on or before the tenth (10th) day after the date thesecurity ceases to be so traded that during the remainder of such period(s) thesecurity is subject to a put option. The number of days between such tenth (10th) day and the dateon which notice is actually given, if later than the tenth (10th)day, must be added to the 

 

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duration of the put option.  The notice must inform distributees of the terms of the putoptions that they are to hold.

 

(d)*                                **Other Put Option Provisions**.*

 

(1)                                  Manner of Exercise. A put option is exercised by the holder’s notifying the Employer inwriting that the put option is being exercised.

 

(2)                                  Time Excluded from Duration of Put Option. The period during which a put option is exercisable does not include anytime when a distributee is unable to exercise it because the party bound by theput option is prohibited from honoring it by applicable federal or state law.

 

(3)                                  Price.  The price atwhich a put option must be exercisable is the value of the security, asdetermined under Treasury Regulations Section 54.4975-11(d)(5).

 

(4)                                  Payment Terms. The provisions for payment under a put option must provide that theEmployer, or the Trust if the Plan so elects, shall repurchase the shares ofEmployer Stock as follows:

 

(A)                              If the distribution constitutes a totaldistribution within the meaning of Section 409(h)(5) of the Code, payment ofthe fair market value of the repurchased shares shall be made in five (5)substantially equal annual payments, of which the first shall be paid not laterthan thirty (30) days after the Participant exercises the put option.  The purchaser shall pay a reasonable rate ofinterest and provide adequate security on amounts not paid after thirty (30)days.

 

(B)                                If the distribution does not constitute atotal distribution, the purchaser shall pay the Participant an amount equal tothe fair market value of the shares repurchased no later than thirty (30) daysafter the Participant exercises the put option.

 

(5)                                  Payment Restrictions. Payment under a put option must not be restricted by the provisions ofan ASOP Loan or any other arrangement, including the terms of the Employer’sArticles of Incorporation, unless so required by applicable law.

 

(e)                                  *Nonterminable Provisions**. *The foregoing provisions of this Section7A.4 shall not terminate, notwithstanding the repayment of an ASOP Loan or thecessation of treatment of this Plan as an employee stock ownership plan withinthe meaning of Section 4975(e)(7) of the Code.

 

**7A.5****                     ****VOTING EMPLOYER****STOCK. **Each Participant (or Beneficiary) shallbe entitled to direct the Trustee as to the manner in which shares of EmployerStock then allocated to his Account shall be voted on all matters presented fora vote to shareholders.  EachParticipant (or Beneficiary) who is so entitled shall be provided with a proxystatement and other materials 

 

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provided to the applicable shareholders in connectionwith each shareholder meeting, together with a form upon which votinginstructions may be given to the Trustee. Any allocated Employer Stock with respect to which voting instructionsare not given (by the Participant or Beneficiary), and any shares of EmployerStock which are not then allocated to Participant’s Accounts, shall be voted inthe manner determined by the Administrator.

 

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**ARTICLEEIGHT—LOANS AND IN-SERVICE WITHDRAWALS**

 

**8.1****         ****LOANS****.**

 

(a)                                  *Permissible Amount and Procedures**. *Effective October 19, 2000, theAdministrator may, in accordance with a uniform and nondiscriminatory policy,direct the Trustee to grant a loan to the Participant, which loan shall besecured by the Participant’s vested Account balance (excluding, however,any  portion of the Participant’s vestedAccount which is a part of the ASOP Fund). The Participant’s signature shall be required on a promissory note.  In addition, if the Participant is married,such Participant’s spouse shall be required to consent in writing to the makingof the loan.  Such written consent must(1) be obtained within the ninety (90)-day period preceding the grantingof the loan, (2) acknowledge the effect of the loan, and (3) bewitnessed by a notary public.  Suchconsent shall thereafter be binding with respect to the consenting spouse orany subsequent spouse with respect to that loan.  In determining a rate of interest on such loan, the Administratormay refer to the rate of interest used for obligations of a comparable natureby commercial lending institutions within a radius of fifty (50) miles of theEmployer’s principal place of business. Participant loans shall be treated as segregated investments, andinterest repayments shall be credited only to the Participant’s Account.

 

(b)                                 *Limitation on Amount of Loans**. *A Participant’s loan shall not exceed thelesser of:

 

(1)                                  $50,000, which amount shall be reduced bythe highest outstanding loan balance during the preceding twelve (12)-monthperiod; or

 

(2)                                  one-half (1⁄2) of the vested value of theParticipant’s Account, determined as of the Valuation Date preceding the dateof the Participant’s loan.

 

Any loan must be repaid within five (5) years, unlessmade for the purpose of acquiring the primary residence of the Participant, inwhich case such loan may be repaid over a longer period of time not to exceedten (10) years.  The repayment of anyloan must be made in at least quarterly installments of principal and interest;provided, however, that this requirement shall not apply for a period, notlonger than one year, that a Participant is on a leave of absence (“Leave”),either without pay from the Employer or at a rate of pay (after income andemployment tax withholding) that is less than the amount of the installmentpayments required under the terms of the loan. However, the loan must be repaid by the latest date permitted underSection 72(p)(2)(B) of the Code and the installments due after the Leave ends(or, if earlier, upon the expiration of the first year of the Leave) must notbe less than those required under the terms of the original loan.

 

If a Participant defaults on any outstanding loan, theunpaid balance, and any interest due thereon, shall become due and payable inaccordance with the terms of the underlying promissory note; provided, however,that such foreclosure on the promissory note and attachment of security shallnot occur until a distributable event occurs in accordance with the provisionsof Article Seven.

 

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If a Participant terminates employment while any loanbalance is outstanding, the unpaid balance, and any interest due thereon, shallbecome due and payable in accordance with the terms of the underlyingpromissory note.  If such amount is notpaid to the Plan, it shall be charged against the amounts that are otherwisepayable to the Participant or the Participant’s Beneficiary under theprovisions of the Plan.

 

Notwithstanding the foregoing provisions of thisSection, no loan shall be made to any Participant who is a five percent (5%) orgreater shareholder-employee of an electing small business (Subchapter S)corporation, an owner of more than ten percent (10%) of either the capitalinterest or the profits interest of an unincorporated Employer, or a familymember (as defined in Section 267(c)(4) of the Code) of such Participant,unless an exemption for the loan is obtained pursuant to Section 408 of theEmployee Retirement Income Security Act of 1974, as amended.

 

In the case of a Participant who has loans outstandingfrom other plans of the Employer (or a member of the Employer’s related group(within the meaning of Section 2.5(b)), the Administrator shall be responsiblefor reporting to the Trustee the existence of said loans in order to aggregateall such loans within the limits of Section 72(p) of the Code.

 

**8.2****                              ****HARDSHIP DISTRIBUTIONS****. **In the case of a financial hardshipresulting from a proven immediate and heavy financial need, a Participant may,with his spouse’s written and notarized consent, if applicable, receive adistribution not to exceed the lesser of (i) the value of the Participant’sPre-Tax (401(k)) Contributions Account, without regard to earnings thereon andwithout regard to any “fail safe” contributions made under Section 11.02, or(ii) the amount necessary to satisfy the financial hardship.  The amount of any such immediate and heavyfinancial need may include any amounts necessary to pay Federal, state or localincome taxes reasonably anticipated to result from the distribution.  Such distribution shall be made inaccordance with nondiscriminatory and objective standards consistently appliedby the Administrator.

 

Hardship distributions under this Section shall bedeemed to be the result of an immediate and heavy financial need if suchdistribution is to (a) pay expenses for medical care (as described in Section213(d) of the Code) previously incurred by the Participant, the Participant’sspouse, or any dependents of the Participant (as defined in Section 152 of theCode), or to permit the Participant, the Participant’s spouse, or anydependents of the Participant to obtain such medical care, (b) purchase theprincipal residence of the Participant (excluding mortgage payments), (c) paytuition and related educational fees for the next twelve (12) months ofpost-secondary education for the Participant, Participant’s spouse, or any ofthe Participant’s dependents or (d) prevent the eviction of the Participantfrom his principal residence or foreclosure on the Participant’s principalresidence.  In addition, any hardshipdistribution hereunder shall only be made provided that the funds for suchhardship are not available from other financial resources of the Participant,the Participant’s spouse or the Participant’s minor children.  Distributions paid pursuant to this Sectionshall be deemed to be made as of the Valuation Date immediately preceding thehardship distribution, and the Participant’s Account shall be reducedaccordingly.

 

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The provisions of this Section (relating to hardshipdistributions) are intended to comply with Treasury Regulations issued underSection 401(k) of the Code, and shall be so interpreted.

 

**8.3****                              ****WITHDRAWALS AFTER AGE591⁄2.**** **Afterattaining age fifty-nine and one-half (591⁄2), a Participant, by givingwritten notice to the Administrator, may, with his spouse’s written andnotarized consent, if applicable, withdraw from the Plan a sum (a) not inexcess of the credit balance of his Pre-Tax (401(k)) Contributions Account, hisvested Profit Sharing Account, his vested ASOP Profit Sharing Account, and hisvested Matching Contributions Account (to the extent derived from Employermatching contributions made prior to January 1, 1996) and (b) not lessthan such minimum amount as the Administrator may establish from time to timeto facilitate administration of the Plan. Any such withdrawals shall be made in accordance with nondiscriminatoryand objective standards consistently applied by the Administrator.

 

**8.4****                              ****WITHDRAWALS OF ROLLOVER****CONTRIBUTIONS. **A Participant, by giving written noticeto the Administrator, may, with his spouse’s written and notarized consent, ifapplicable, withdraw from the Plan a sum (a) not in excess of the creditbalance of the Participant’s Rollover Account and (b) not less than suchminimum amount as the Administrator may establish from time to time tofacilitate administration of the Plan. Any such withdrawals shall be made in accordance with nondiscriminatoryand objective standards consistently applied by the Administrator.

 

**8.5****                              ****DIVERSIFICATION****.**  The provisions of this Section 8.5 shallapply to any Participant who has attained age fifty-five (55) and who hascompleted at least ten (10) years of participation in the Plan, excluding anyperiod prior to December 1, 1995 (a “Qualified Participant”).

 

Each Qualified Participant shall be permitted todirect the Plan as to the diversification of twenty-five percent (25%) of thevalue of the vested portion of the Participant’s ASOP Accounts in the mannerprovided below, within ninety (90) days after the last day of each Plan Yearduring the Participant’s “Qualified Election Period.”  For this purpose, “Qualified Election Period” shall mean the six(6) Plan Year period beginning with the Plan Year in which the Participantfirst became a Qualified Participant. Within ninety (90) days after the close of the last Plan Year in theParticipant’s Qualified Election Period, a Qualified Participant may direct thePlan as to the diversification of fifty percent (50%) of the value of thevested portion of such ASOP Accounts.

 

A Qualified Participant’s diversification electionshall be provided to the Administrator in writing and may specify either of theoptions set forth below.

 

(i)                                     At the election of the QualifiedParticipant, the Plan shall distribute, in a single sum cash distribution(notwithstanding Section 409(d) of the Code) the portion of the Participant’sAccounts (that are subject to the diversification election described in thisSection 8.5), within ninety (90) days after the last day of the period duringwhich the election can be made.

 

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(ii)                                  A Qualified Participant who has a rightto elect to receive a cash distribution under (i) above may elect instead totransfer the portion of the Participant’s Accounts that are distributable incash and covered by such election from the ASOP Fund to one or more of theother investment funds available under the Plan.  Such investment change shall be made no later than ninety (90)days after the last day of the period during which the election can be made.

 

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**ARTICLENINE—ASOP LOANS**

 

**9.1****                              ****ASOP LOANS****. **Provided the provisions of this Articleare satisfied, an ASOP Loan may be made to the Plan by a “Disqualified Person”(as defined by Section 4975(e)(2) of the Code), or may be guaranteed by aDisqualified Person.  An ASOP Loan may bea direct loan of cash, a purchase-money transaction, or an assumption of theobligations of the Plan.  The termguarantee includes an unsecured guarantee and the use of assets of aDisqualified Person as collateral for a loan, even though the use of assets maynot be a guarantee under applicable state law. An amendment of a loan solely in order to qualify as a loan meeting therequirements hereunder shall not be deemed a refinancing of the loan or themaking of another loan.

 

**9.2****                              ****PRIMARY BENEFITREQUIREMENT****. **An ASOP Loan made or guaranteed by a DisqualifiedPerson must be primarily for the benefit of the Participants and theirBeneficiaries.

 

The terms of an ASOP Loan, whether or not betweenindependent parties shall, at the time the ASOP Loan is made, be at least asfavorable to the Plan as the terms of a comparable loan resulting from arm’slength negotiations between independent parties.  The interest rate shall not be in excess of a reasonable rate.

 

**9.3****                              ****USE OF ASOP LOAN PROCEEDS****. **The proceeds of an ASOP Loan made orguaranteed by a Disqualified Person shall be used within a reasonable timeafter their receipt by the Plan only for any or all of the following purposes:

 

(a)                                  To acquire shares of Employer Stock;

 

(b)                                 to repay such ASOP Loan; or

 

(c)                                  to repay a prior ASOP Loan meeting therequirements of this Article.  A newASOP Loan, the proceeds of which are so used, must satisfy the provisions ofthis Article.

 

Except as provided herein, or as otherwise required byapplicable law, no security acquired with the proceeds of an ASOP Loan describedin this Article shall be subject to put, call or other option, or buy-sell orsimilar arrangement while held by and when distributed from the Plan, whetheror not the Plan is then an employee stock ownership plan.

 

**9.4****                              ****LIABILITY AND COLLATERAL****OF PLAN FOR ASOP LOAN. **An ASOPLoan shall be without recourse against the Plan.  Furthermore, the only asset of the Plan that shall be given ascollateral is shares of Employer Stock which were either acquired with theproceeds of the ASOP Loan or used as collateral on a prior ASOP Loan meetingthe requirements of this Article, and repaid with the proceeds of the currentASOP Loan.  No person entitled topayment under the ASOP Loan shall have any right to assets of the Plan otherthan:

 

(a)                                  collateral given for the ASOP Loan;

 

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(b)                                 cash contributions that are made underthe Plan to meet its obligations under the ASOP Loan; and

 

(c)                                  earnings attributable to such collateraland the investment of such cash contributions.

 

The payments made with respect to an ASOP Loan by thePlan during a Plan Year shall not exceed an amount equal to the sum of suchcontributions and earnings received during or prior to the year less suchpayments in prior years.  Suchcontributions and earnings shall be accounted for separately in books ofaccount of the Plan until the ASOP Loan is repaid.

 

**9.5****                              ****DEFAULT****. **In the event of default on an ASOP Loan,the value of Plan assets transferred in satisfaction of the ASOP Loan shall notexceed the amount of default.  If thelender is a Disqualified Person, the ASOP Loan shall provide for a transfer ofPlan assets upon default only upon, and to the extent of, the failure of thePlan to meet the payment schedule of the ASOP Loan.  For purposes of this Section, the making of a guarantee does notmake a person a lender.

 

**9.6****                              ****RELEASE OF COLLATERALFOR ASOP LOAN**

 

(a)                                  General Rule.  In general, an ASOP Loan shall provide for the release fromencumbrance of Plan assets used as collateral for the ASOP Loan.  For each Plan Year during the duration ofthe ASOP Loan, the number of shares of Employer Stock released shall equal thenumber of shares then encumbered under the ASOP Loan multiplied by a fractionas follows:  the numerator of thefraction shall be the amount of principal and interest paid on the ASOP Loanfor such Plan Year; the denominator of the fraction shall be the sum of thenumerator plus the principal and interest to be paid for all future years.  The number of future years under the ASOPLoan shall be definitely ascertainable and shall be determined without takinginto account any possible extensions or renewal periods.  If the interest rate under the ASOP Loan isvariable, the interest to be paid in future years shall be computed by usingthe interest rate applicable as of the end of the Plan Year.  Where ASOP Loan payments for a Plan Year aremade in semiannual or more frequent (“periodic”) installments, the shares ofEmployer Stock required to be released for the Plan Year shall likewise be releasedin periodic installments reflecting such payments. The number of sharesreleased in those installments, other than the last periodic payment in anyPlan Year, shall be determined, in the case of each such payment, by referenceto the principal and interest amounts included in such payment and bydetermining future payments on the basis of the interest rate applicable at thetime of such payment  The number ofshares released in the last installment for the Plan Year shall be the totalnumber of shares required to be released for the Plan Year less the number ofshares released in prior installments during the Plan Year.  If collateral includes more than one classof securities, the number of securities of each class to be released for a PlanYear shall be determined by applying the same fraction to each class.

 

(b)                                 Special Rule.  Release of Employer Stock from encumbrance may be determinedsolely with reference to principal payments made during the Plan Year,provided:

 

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(i)                                     the ASOP Loan shall provide for annualpayments of principal and interest at a cumulative rate that is not less rapidat any time than level annual payments of such amounts for ten (10) years;

 

(ii)                                  interest included in any ASOP Loanpayment shall be disregarded only to the extent that it would be determined tobe interest under standard loan amortization tables; and

 

(iii)                               Employer Stock shall not be releasedsolely with respect to principal payments from such time as the sum of theexpired duration period of the ASOP Loan, the renewal period, the extensionperiod, and the duration of the new ASOP Loan exceeds ten years, by reason of arenewal, extension, or refinancing.

 

(c)                                  Suspense Account.  All assets acquired by the Plan with theproceeds of an ASOP Loan shall be added to and maintained in a suspenseaccount.  They are to be withdrawn fromthe suspense account as if all securities in the suspense account wereencumbered.  As of the end of each PlanYear, the Plan shall consistently allocate to the Participants’ Accountssecurities or other non-monetary units representing Participants’ interest inassets withdrawn from the suspense account.

 

**9.7****                              ****INCOME.**** **Income with respect to shares of EmployerStock acquired with the proceeds of an ASOP Loan must be allocated as income ofthe Plan except to the extent that the use of income from such securities isused to repay the ASOP Loan. Notwithstanding the foregoing, cash dividends on shares of EmployerStock allocated to a Participant’s ASOP Account shall be credited to thatParticipant’s Account, or may, in the sole discretion of the Employer, bedistributed to the Participant within 90 days after the close of the Plan Yearin which paid to the extent of the Participant’s vested interest in his or hertotal Account.  Cash dividends paid onshares of Employer Stock held in the suspense account shall be used to makepayments on ASOP Loans the proceeds of which were used to acquire the shareswith respect to which the dividends are paid, or shall be used to purchaseadditional shares of Employer Stock, or shall be credited to the suspenseaccount.

 

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**ARTICLETEN—ADMINISTRATION OF THE PLAN**

 

**10.1****                       ****PLAN ADMINISTRATION****. **The Employer shall be the PlanAdministrator, hereinbefore and hereinafter called the Administrator, and“named fiduciary” (for purposes of Section 402(a)(1) of the Employee RetirementIncome Security Act of 1974, as amended from time to time) of the Plan, unlessthe Employer, by action of its board of directors, shall designate a person orcommittee of persons to be the Administrator and named fiduciary.  The administration of the Plan, as providedherein, including a determination of the payment of benefits to Participantsand their Beneficiaries, shall be the responsibility of the Administrator;provided, however, that the Administrator may delegate any of its powers,authority, duties or responsibilities to any person or committee ofpersons.  The Administrator shall havefull discretion to interpret the terms of the Plan, to determine factualquestions that arise in the course of administering the Plan, to adopt rulesand regulations regarding the administration of the Plan, to determine theconditions under which benefits become payable under the Plan, and to make anyother determinations that the Administrator believes are necessary andadvisable for the administration of the Plan. Any determination made by the Administrator shall be final and bindingon all parties.

 

In the event more than one party shall act asAdministrator, all actions shall be made by majority decisions.  In the administration of the Plan, theAdministrator may (a) employ agents to carry out nonfiduciary responsibilities(other than Trustee responsibilities), (b) consult with counsel, who maybe counsel to the Employer, and (c) provide for the allocation offiduciary responsibilities (other than Trustee responsibilities) among itsmembers.  Actions dealing with fiduciaryresponsibilities shall be taken in writing and the performance of agents,counsel and fiduciaries to whom fiduciary responsibilities have been delegatedshall be reviewed periodically.

 

The expenses of administering the Plan and thecompensation of all employees, agents, or counsel of the Administrator,including accounting fees, recordkeeper’s fees, and the fees of any benefitconsulting firm, shall be paid by the Plan, or shall be paid by the Employer ifthe Employer so elects.  To the extentrequired by applicable law, compensation may not be paid by the Plan tofull-time employees of the Employer.

 

In the event the Employer pays the expenses ofadministering the Plan, the Employer may seek reimbursement from the Plan forthe payment of such expenses. Reimbursement shall be permitted only for Plan expenses paid by theEmployer within the last twelve (12)-month period.

 

The Administrator shall obtain from the Trustee, notless often than annually, a report with respect to the value of the assets heldin the Trust Fund, in such form as may be required by the Administrator.

 

The Administrator shall administer the Plan and adoptsuch rules and regulations as, in the opinion of the Administrator, arenecessary or advisable to implement and administer the Plan and to transact itsbusiness.

 

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**10.2****       ****CLAIMS PROCEDURE**

** **

(a)                                  Pursuant to procedures established by theAdministrator, claims for benefits under the Plan made by a Participant orBeneficiary (the “claimant”) must be submitted in writing to the Administrator.  Approved claims shall be processed andinstructions issued to the Trustee or custodian authorizing payment as claimed.

 

If a claim is denied in whole or in part, theAdministrator shall notify the claimant whose claim for benefit has been deniedwithin ninety (90) days after receipt of the claim (or within one hundredeighty (180) days, if special circumstances require an extension of time forprocessing the claim, and provided written notice indicating the specialcircumstances and the date by which a final decision is expected to be renderedis given to the claimant within the initial ninety (90) day period).  If notification is not given in such period,the claim shall be considered denied as of the last day of such period and theclaimant may request a review of the claim.

 

The notice of the denial of the claim shall be writtenin a manner calculated to be understood by the claimant and shall set forth thefollowing:

 

(i)                                     the specific reason or reasons for thedenial of the claim;

 

(ii)                                  the specific references to the pertinentPlan provisions on which the denial is based;

 

(iii)                               a description of any additional materialor information necessary to perfect the claim, and an explanation of why suchmaterial or information is necessary; and

 

(iv)                              a statement that any appeal of the denialmust be made by giving to the Administrator, within sixty (60) days afterreceipt of the denial of the claim, written notice of such appeal, such noticeto include a full description of the pertinent issues and basis of the claim.

 

(b)                                 Upon denial of a claim in whole or part,the claimant (or his duly authorized representative) shall have the right tosubmit a written request to the Administrator for a full and fair review of thedenied claim, to be permitted to review documents pertinent to the denial, andto submit issues and comments in writing. Any appeal of the denial must be given to the Administrator within theperiod of time prescribed under (a)(iv) above. If the claimant (or his duly authorized representative) fails to appealthe denial to the Administrator within the prescribed time, the Administrator’sadverse determination shall be final, binding and conclusive.

 

The Administrator may hold a hearing or otherwiseascertain such facts as it deems necessary and shall render a decision whichshall be binding upon both parties.  TheAdministrator shall advise the claimant of the results of the review withinsixty (60) days after receipt of the written request for the review, unlessspecial circumstances require an extension of time for processing, in whichcase a decision shall be rendered as soon as possible but not later than onehundred twenty (120) days after receipt of the request for

 

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review.  If suchextension of time is required, written notice of the extension shall befurnished to the claimant prior to the commencement of the extension.  The decision of the review shall be writtenin a manner calculated to be understood by the claimant and shall includespecific reasons for the decision and specific references to the pertinent Planprovisions on which the decision is based. The decision of the Administrator shall be final, binding andconclusive.

 

**10.3****                       ****TRUST AGREEMENT****. **The Trust Agreement entered into by andbetween the Employer and the Trustee, including any supplements or amendmentsthereto, or any successor Trust Agreement, is incorporated by reference herein.

 

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**ARTICLEELEVEN—SPECIAL COMPLIANCE PROVISIONS**

 

**11.1****                       ****DISTRIBUTIONOF EXCESS DEFERRAL AMOUNTS.** Notwithstanding any other provision of thePlan, “Excess Deferral Amounts” (as defined below) (and income or lossallocable thereto, including all earnings, expenses and appreciation ordepreciation in value, whether or not realized) shall be distributed no laterthan each April 15 to Participants who claim Excess Deferral Amounts for thepreceding calendar year.

 

“Excess Deferral Amount” shall mean the amount ofelective deferrals for a calendar year that the Participant designates to thePlan pursuant to the following procedure. The Participant’s designation: shall be submitted to the Administrator in writing no later than March1; shall specify the Participant’s Excess Deferral Amount for the precedingcalendar year; and shall be accompanied by the Participant’s written statementthat if the Excess Deferral Amount is not distributed, it will, when added toamounts deferred under other plans or arrangements described in Section 401(k),408(k) or 403(b) of the Code, exceed the limit imposed on the Participant bySection 402(g) of the Code for the year in which the deferral occurred.

 

An Excess Deferral Amount, and the income or lossallocable thereto, may be distributed before the end of the calendar year inwhich the elective deferrals were made. A Participant who has an Excess Deferral Amount for a taxable year,taking into account only his elective deferrals under the Plan or any otherplans of the Employer (including any member of the Employer’s related group(within the meaning of Section 2.5(b)) shall be deemed to have designated theentire amount of such Excess Deferral Amount.

 

**11.2****                       ****LIMITATIONS ON 401(k)CONTRIBUTIONS**

 

(a)                                  *Average Actual Deferral Percentage Test**. *Amounts contributed as elective deferralsunder Section 4.1(a), and any “fail-safe” contributions made under thisSection, are considered to be amounts deferred pursuant to Section 401(k) ofthe Code.  For purposes of this Section,these amounts are referred to as the “deferred amounts.”  For purposes of the “average actual deferralpercentage test” described below, (i) such deferred amounts must be made beforethe last day of the twelve (12)-month period immediately following the PlanYear to which the contributions relate, and (ii) the deferred amounts relate toCompensation that either (A) would have been received by the Participant in thePlan Year but for the Participant’s election to make deferrals, or (B) isattributable to services performed by the Participant in the Plan Year but forthe Participant’s election to make deferrals, would have been received by theParticipant within two and one-half (21⁄2) months after the close of the PlanYear.  The Employer shall maintainrecords sufficient to demonstrate satisfaction of the average actual deferralpercentage test and the deferred amounts used in such test.

 

Effective for Plan Years beginning on or after January1, 1997, as of the last day of each Plan Year, the deferred amounts for theParticipants who are Highly-Compensated Associates for the Plan Year shallsatisfy either of the following tests:

 

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(1)                                  The average actual deferral percentagefor the eligible Participants who are Highly-Compensated Associates for thePlan Year shall not exceed the average actual deferral percentage for eligibleParticipants who are Nonhighly-Compensated Associates for the Plan Yearmultiplied by 1.25; or

 

(2)                                  The average actual deferral percentagefor eligible Participants who are Highly-Compensated Associates for the PlanYear shall not exceed the average actual deferral percentage of eligibleParticipants who are Nonhighly-Compensated Associates for the Plan Yearmultiplied by two (2), provided that the average actual deferralpercentage for eligible Participants who are Highly-Compensated Associates forthe Plan Year does not exceed the average actual deferral percentage foreligible Participants who are Nonhighly-Compensated Associates by more than two(2) percentage points, or such lesser amount as the Secretary of the Treasuryshall prescribe to prevent the multiple use of this alternative limitation withrespect to any Highly-Compensated Associate.

 

Notwithstanding the foregoing, if elected by theEmployer, the foregoing percentage tests shall be applied as though thereferences therein to “the Plan Year” read “the prior Plan Year;” provided,however, the change in testing methods complies with the requirements set forthin Notice 98-1 and any other superseding guidance.

 

Effective for testing years after December 31, 1998,in the event the Plan changes from the current year testing method to the prioryear testing method, then, for purposes of the first testing year for which thechange is effective, the average actual deferral percentage for Nonhighly-CompensatedAssociates for the prior year shall be determined by taking into account only(a) elective deferrals for those Nonhighly-Compensated Associates that weretaken into account for purposes of the average actual deferral percentage test(and not the actual contribution percentage test) under the current yeartesting method for the prior year and (b) any qualified nonelectivecontributions that were allocated to the Accounts of thoseNonhighly-Compensated Associates for the prior year but were not used tosatisfy the actual average deferral percentage test or the average contributionpercentage test under the current year testing method for the prior year.

 

In the event the Plan changes from the current year tothe prior year testing method for the first time for either the 1997 or 1998testing year, the average actual deferral percentage for Nonhighly-CompensatedAssociates used for that testing year shall be the same as the average actualdeferral percentage for Nonhighly-Compensated Associates used for the priortesting year.

 

For purposes of the above tests, the “actual deferralpercentage” shall mean the ratio (expressed as a percentage) that the deferredamounts, which are allocated to the Participant’s Account as of any day in thePlan Year, on behalf of each eligible Participant for the Plan Year bears tothe eligible Participant’s compensation (within the meaning of Section1.414(s)-1(d)(2) of the Income Tax Regulations) for the Plan Year.  The “average actual deferral percentage”shall mean the average (expressed as a percentage) of the actual deferralpercentages of the eligible Participants in each group. “Eligible

 

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Participant” shall mean each Associate who is eligibleto participate in the Plan under Section 3.1.

 

For purposes of this Section 11.2, the actual deferralpercentage for any eligible Participant who is a Highly-Compensated Associatefor the Plan Year and who is eligible to have elective deferrals allocated tohis account under two (2) or more plans or arrangements described in CodeSection 401(k) that are maintained by the Employer or any employer who is arelated group member (within the meaning of Section 2.5(b)) shall be determinedas if all such deferrals were made under a single arrangement.  In the event that this Plan satisfies therequirements of Code Section 401(k), 401(a)(4) or 410(b) only if aggregatedwith one (1) or more other plans, or if one (1) or more other plans satisfy therequirements of such Sections of the Code only if aggregated with this Plan,then the provisions of this Section 11.2 shall be applied by determiningthe actual deferral percentage of eligible Participants as if all such planswere a single plan.  Any adjustments tothe Nonhighly-Compensated Associate actual deferral percentage for the prioryear shall be made in accordance with Notice 98-1 and any superseding guidance,unless the Employer has elected to use the current year testing method.  Plans may be aggregated in order to satisfy Section401(k) of the Code only if they have the same Plan Year and use the sameaverage actual deferral percentage testing method.

 

For purposes of determining the actual deferralpercentage of a Participant who is classified as a Highly-Compensated Associateas the result of being a five percent (5%) owner, or who is one of the ten (10)highest paid Highly-Compensated Associates, the deferred amount and thecompensation of such Participant shall include the deferred amounts andcompensation of his family members (as defined in Code Section 414(q)(6)(B))participating in the Plan.  Such familymembers shall be disregarded in determining the average actual deferralpercentage for Participants who are Nonhighly-Compensated Associates.  The application of the family aggregationrule set forth in this paragraph, however, shall not apply for Plan Yearsbeginning on and after January 1, 1997.

 

The determination and treatment of deferred amountsand the actual deferral percentage of any Participant shall be subject to theprescribed requirements of the Secretary of the Treasury.

 

In the event the average actual deferral percentagetest is not satisfied for a Plan Year, the Employer, in its discretion, maymake a special “fail-safe” contribution for eligible Participants who areNonhighly-Compensated Associates and who are employed on the last day of thePlan Year (“Eligible Nonhighly-Compensated Associate(s)”).  The fail safe contribution shall beallocated first to the Eligible Nonhighly-Compensated Associate whose Compensationis the lowest of all Eligible Nonhighly-Compensated Associates in an amountthat does not exceed the limitations on annual additions set forth underArticle Twelve of the Plan; then to the Eligible Nonhighly-CompensatedAssociate with the second lowest Compensation of all EligibleNonhighly-Compensated Associates in the same manner as set forth above, andcontinuing to be allocated to Eligible Nonhighly-Compensated Associates in theorder of ascending Compensation until the average actual deferral percentagetest is satisfied.

 

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(b)                                 *Distributions of Excess Contributions**.*

 

(1)                                  In General.  If theaverage actual deferral percentage test of Section 11.2(a) is not satisfied fora Plan Year, then the “excess contributions”, and income allocable thereto,shall be distributed, to the extent required under Treasury regulations, nolater than the last day of the Plan Year following the Plan Year for which theexcess contributions were made. However, if such excess contributions are distributed later than two andone-half (21⁄2) months following the last day of the Plan Year in which suchexcess contributions were made, a ten percent (10%) excise tax shall be imposedupon the Employer with respect to such excess contributions.

 

(2)                                  Excess Contributions. For purposes of this Section, “excess contributions” shall consist ofthe excess of the aggregate amount of deferred amounts made by or on behalf ofthe Highly-Compensated Associates for such Plan Year over the maximum amount ofall such contributions permitted under the test under Section 11.2(a).  In order to comply with Section 401(k)(8)(C)of the Code (as amended by the Small Business Job Protection Act of 1996), effectiveJanuary 1, 1997, excess contributions shall be allocated to theHighly-Compensated Associates with the largest amounts of contributions takeninto account in calculating the average actual deferral percentage test for theyear in which the excess arose, beginning with the Highly-Compensated Associatewith the largest amount of such contributions and continuing in descendingorder until all the excess contributions have been allocated.

 

(3)                                  Determination of Income. The income allocable to excess contributions allocated to eachParticipant shall be determined by multiplying the income allocable to theParticipant’s deferred amounts for the Plan Year by a fraction, the numeratorof which is the excess contributions made on behalf of the Participant for thePlan Year, and the denominator of which is the sum of the Participant’s Accountbalances attributable to the Participant’s deferred amounts on the last day ofthe Plan Year.

 

(4)                                  Maximum Distributable Amount. The excess contributions to be distributed to a Participant shall beadjusted for income and, if there is a loss allocable to the excesscontribution, shall in no event be less than the lesser of the Participant’sAccount under the Plan or the Participant’s deferred amounts for the PlanYear.  Excess contributions shall bedistributed from that portion of the Participant’s Account attributable to suchdeferred amounts to the extent allowable under Treasury regulations.

 

**11.3****       ****NONDISCRIMINATION TESTFOR EMPLOYER MATCHING CONTRIBUTIONS**

 

(a)                                  *Average Contribution Percentage Test**. *The provisions of this Section shallapply if Employer matching contributions are made in any Plan Year underSection 4.2.

 

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Effective for Plan Years beginning on or after January1, 1997, as of the last day of each Plan Year, the average contributionpercentage for Highly-Compensated Associates for the Plan Year shall satisfyeither of the following tests:

 

(1)                                  The average contribution percentage foreligible Participants who are Highly-Compensated Associates for the Plan Yearshall not exceed the average contribution percentage for eligible Participantswho are Nonhighly-Compensated Associates for the Plan Year multiplied by 1.25;or

 

(2)                                  The average contribution percentage foreligible Participants who are Highly-Compensated Associates for the Plan Yearshall not exceed the average contribution percentage for eligible Participantswho are Nonhighly-Compensated Associates for the Plan Year multiplied by two(2), provided that the average contribution percentage for eligibleParticipants who are Highly-Compensated Associates for the Plan Year does notexceed the average contribution percentage for eligible Participants who areNonhighly-Compensated Associates by more than two (2) percentage points or suchlesser amount as the Secretary of the Treasury shall prescribe to prevent themultiple use of this alternative limitation with respect to anyHighly-Compensated Associate.

 

Notwithstanding the foregoing, if elected by theEmployer, the foregoing percentage tests shall be applied as though thereferences therein to “the Plan Year” read “the prior Plan Year;” provided,however, the change in testing methods complies with the requirements set forthin Notice 98-1 and any other superseding guidance.

 

Effective for testing years beginning after December31, 1998, in the event the Plan changes from the current year testing method tothe prior year testing method, then, for purposes of the first testing year forwhich the change is effective, the average contribution percentage forNonhighly-Compensated Associates for the prior year shall be determined bytaking into account only (a) matching contributions for thoseNonhighly-Compensated Associates that were taken into account for purposes ofthe average contribution percentage test (and not the average actual deferralpercentage test) under the current year testing method for the prior year, and(b) any qualified nonelective contributions that were allocated to the Accountsof those Nonhighly-Compensated Associates for the prior year but that were notused to satisfy the average contribution percentage test or the average actualdeferral percentage test under the current year testing method for the prioryear.

 

In the event the Plan changes from the current year tothe prior year testing method for the first time for either the 1997 or 1998testing year, the average contribution percentage for Nonhighly-CompensatedAssociates used for that testing year shall be the same as the averagecontribution percentage for Nonhighly-Compensated Associates used for the priortesting year.

 

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For purposes of the above tests, the “averagecontribution percentage” shall mean the average (expressed as a percentage) ofthe contribution percentages of the “eligible Participants” in each group.  The “contribution percentage” shall mean theratio (expressed as a percentage) that the sum of Employer matchingcontributions and elective deferrals (to the extent such elective deferrals arenot used to satisfy the average actual deferral percentage test ofSection 11.2) under the Plan on behalf of the eligible Participant for thePlan Year bears to the eligible Participant’s compensation (within the meaningof Section 1.414(s)-1(d)(2) of the Income Tax Regulations) for the PlanYear.  Such average contributionpercentage shall be determined without regard to matching contributions thatare used either to correct excess contributions hereunder or becausecontributions to which they relate are excess deferrals under Section 11.1 orexcess contributions under Section 11.2. “Eligible Participant” shall mean each Associate who is eligible toparticipate in the Plan under Section 3.1.

 

For purposes of this Section 11.3, the contributionpercentage for any eligible Participant who is a Highly-Compensated Associatefor the Plan Year and who is eligible to have Employer matching contributions,elective deferrals and/or after-tax contributions allocated to his accountunder two (2) or more plans described in Section 401(a) of the Code or underarrangements described in Section 401(k) of the Code that are maintained by theEmployer or any member of the Employer’s related group (within the meaning ofSection 2.5(b)), shall be determined as if all such contributions were madeunder a single plan.

 

In the event that this Plan satisfies the requirementsof Section 401(m), 401(a)(4) or 410(b) of the Code only if aggregated with one(1) or more other plans, or if one (1) or more other plans satisfy therequirements of such Sections of the Code only if aggregated with this Plan,then the provisions of this Section 11.3 shall be applied by determining thecontribution percentages of eligible Participants as if all such plans were asingle plan.  Any adjustments to theNonhighly-Compensated Associate actual contribution percentage for the prioryear shall be made in accordance with Notice 98-1 and any superseding guidance,unless the Employer has elected to use the current year testing method.  Plans may be aggregated in order to satisfySection 401(m) of the Code only if they have the same Plan Year and use thesame average contribution percentage testing method.

 

For purposes of determining the contributionpercentage of an eligible Participant who is classified as a Highly-CompensatedAssociate as the result of being a five percent (5%) owner or who is one of theten (10) highest paid Highly-Compensated Associates, the Employer matchingcontributions, elective deferrals (to the extent not used to satisfy theaverage actual deferral percentage test of Section 11.2) and compensation ofsuch Participant shall include the Employer matching contributions, suchelective deferrals and compensation of his family members (as defined in CodeSection 414(q)(6)(B)) participating in the Plan.  Such family members shall be disregarded in determining theaverage contribution percentage for eligible Participants who areNonhighly-Compensated Associates.  Theapplication of the family aggregation rule set forth in this paragraph,however, shall not apply for Plan Years beginning on and after January 1, 1997.

 

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The determination and treatment of the contributionpercentage of any Participant shall satisfy such other requirements as may beprescribed by the Secretary of the Treasury.

 

(b)                                *Distribution of Excess Employer Matching Contributions**.*

 

(1)                                  In General.  If thenondiscrimination tests of Section 11.3(a) are not satisfied for a Plan Year,then the “excess aggregate contributions”, and any income allocable thereto,shall be forfeited, if otherwise forfeitable, no later than the last day of thePlan Year following the Plan Year for which the nondiscrimination tests are notsatisfied, and shall be used to reduce Employer contributions under Section 4.2.  To the extent that such “excess aggregatecontributions” are nonforfeitable, such excess contributions shall bedistributed to the Participant on whose behalf the excess contributions weremade no later than the last day of the Plan Year following the Plan Year forwhich such “excess aggregate contributions” were made.  However, if such excess aggregatecontributions are distributed later than two and one-half (21⁄2) months followingthe last day of the Plan Year in which such excess aggregate contributions weremade, a ten percent (10%) excise tax shall be imposed upon the Employer withrespect to such excess aggregate contributions.  For purposes of the limitations of Section 12.1(b)(1) of thePlan, excess aggregate contributions shall be considered annual additions.

 

(2)                                  Excess Aggregate Contributions. For purposes of this Section, “excess aggregate contributions” shallconsist of the excess of the amount of Employer matching contributions andelective deferrals (to the extent not used to satisfy the average actualdeferral percentage test of Section 11.2) made on behalf of theHighly-Compensated Associates for such Plan Year over the maximum amount of allsuch contributions permitted under the nondiscrimination tests under Section11.3(a).  In order to comply withSection 401(m)(6)(C) of the Code (as amended by the Small Business JobProtection Act of 1996), effective January 1, 1997, excess contributions shallbe allocated to the Highly-Compensated Associate with the largest “contributionpercentage amounts” (as defined below) taken into account in calculating theaverage contribution percentage test for the year in which the excess arose,beginning with the Highly-Compensated Associate with the largest contributionpercentage amounts and continuing in descending order until all the excessaggregate contributions have been allocated.

 

For purposes of thepreceding paragraph, “contribution percentage amounts” shall mean the sum ofEmployer matching contributions and elective deferrals (to the extent not usedto satisfy the average actual deferral percentage test of Section 11.2) madeunder the Plan on behalf of the Participant for the Plan Year.

 

(3)                                  Determination of Income. The income allocable to excess contributions allocated to eachParticipant shall be determined by multiplying the income allocable to theEmployer matching contributions such elective deferrals by a fraction, thenumerator of which is the excess aggregate contributions on behalf of theParticipant for the Plan Year, and the denominator of which is the sum of the

 

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Participant’s Accountbalances attributable to Employer matching contributions and such electivedeferrals, on the last day of the Plan Year.

 

Notwithstanding theforegoing, to the extent otherwise required to comply with the requirements ofSection 401(a)(4) of the Code and the regulations thereunder, vested matchingcontributions may be forfeited.

 

**11.4****                       ****LIMITATION ON THEMULTIPLE USE ALTERNATIVE.** The sum of the average actual deferral percentage of Highly-CompensatedAssociates under Section 11.2(a) and the average contribution percentage ofHighly-Compensated Associates under Section 11.3(a) shall not exceed the“aggregate limit,” as defined in Section 401(m)(9) of the Code and theregulations promulgated thereunder.

 

If the aggregate limit isexceeded, the average contribution percentage of the Highly-CompensatedAssociates shall be reduced in accordance with the provisions ofSection 11.3(b).  In lieu ofreducing the average contribution percentage, the Administrator may reduce theaverage actual deferral percentage of the Highly-Compensated Associates inaccordance with the provisions of Section 11.2(b).  The reductions under this Section shall bemade only to the extent necessary to comply with the restrictions on themultiple use of the “alternative limitation” within the meaning of CodeSection 401(m)(9).

 

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**ARTICLETWELVE—LIMITATION ON ANNUAL ADDITIONS**

 

**12.1****       ****RULES AND DEFINITION****S**

 

(a)           *Rules**                 *The following rules shall limit additionsto Participants’ Accounts:

 

(1)                                  If the Participant does not participate,and has never participated, in another qualified plan maintained by theEmployer, the amount of annual additions which may be credited to theParticipant’s Account for any limitation year shall not exceed the lesser ofthe “maximum permissible” amount (as hereafter defined) or any other limitationcontained in this Plan.  If the Employercontribution that would otherwise be allocated to the Participant’s Accountwould cause the annual additions for the limitation year to exceed the maximumpermissible amount, the amount allocated shall be reduced so that the annualadditions for the limitation year shall equal the maximum permissible amount.

 

(2)                                  Prior to determining the Participant’sactual compensation for the limitation year, the Employer may determine themaximum permissible amount for a Participant on the basis of a reasonableestimation of the Participant’s compensation for the limitation year, uniformlydetermined for all Participants similarly situated.

 

(3)                                  As soon as is administratively feasibleafter the end of the limitation year, the maximum permissible amount for thelimitation year shall be determined on the basis of the Participant’s actualcompensation for the limitation year.

 

(4)                                  If, as a result of the allocation offorfeitures, a reasonable error in estimating a Participant’s annualCompensation, a reasonable error in determining elective deferrals, thelimitations of Section 415 of the Code are exceeded, such excess amount shallbe disposed of as follows:

 

(A)                              Any nondeductible Associate after-taxcontributions (plus attributable earnings) and, to the extent elected by theAdministrator pursuant to a nondiscriminatory procedure, elective deferralsunder Section 4.1(a) (plus attributable earnings), to the extent they wouldreduce the excess amount, shall be returned to the Participant.

 

(B)                                If an excess amount still exists afterthe application of subparagraph (A), and the Participant is covered by the Planat the end of the limitation year, the excess amount in the Participant’sAccount shall be used to reduce Employer contributions (including anyallocation of forfeitures, if applicable) for such Participant in the nextlimitation year, and each succeeding limitation year if necessary;

 

(C)                                If an excess amount still exists afterthe application of subparagraph (A), and the Participant is not covered by thePlan at the end of the limitation year, the excess amount shall be heldunallocated in a suspense account 

 

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and applied to reducefuture Employer contributions (including allocation of any forfeitures) for allremaining Participants in the next limitation year, and each succeedinglimitation year if necessary.  Excessamounts may not be distributed to Participants or former Participants.

 

(D)                               If a suspense account is in existence atany time during the limitation year pursuant to this Section 12.1(a)(4), itshall not participate in the allocation of the Trust’s investment gains andlosses.  In addition, all amounts heldin the suspense account shall be allocated and reallocated to Participants’Accounts before any Employer or Associate contributions may be made for thelimitation year.

 

(5)                                  If, in addition to this Plan, theParticipant is covered under another defined contribution plan maintained bythe Employer, or a welfare benefit fund, as defined in Code Section 419(e),maintained by the Employer, or an individual medical account, as defined inCode Section 415(1)(2), maintained by the Employer which provides an annualaddition, the annual additions which may be credited to a Participant’s accountunder all such plans for any such limitation year shall not exceed the maximumpermissible amount.  Benefits shall bereduced under any discretionary defined contribution plan before they arereduced under any defined contribution pension plan.  If both plans are discretionary contribution plans, they shall firstbe reduced under this Plan.  Any excessamount attributable to this Plan shall be disposed of in the manner describedin Section 12.1(a)(4).

 

(6)                                  If the Employer maintains, or at any timemaintained, a qualified defined benefit plan covering any Participant in thisPlan, the sum of the Participant’s defined benefit plan fraction and definedcontribution plan fraction shall not exceed 1.0 in any limitation year.  The annual additions which may be creditedto the Participant’s Account under this Plan for any limitation year shall belimited so that if the limitations of Code Section 415(e) become applicable,benefits under a defined benefit plan shall have first been provided beforebenefits under a defined contribution plan are provided.

 

The combined limitationset forth in the preceding paragraph shall not apply to any limitation yearbeginning after December 31, 1999.

 

(7)                                  In any Plan Year in which the Planbecomes a Super Top-Heavy Plan (as defined in Section 14.2(b)), thedenominators of the defined benefit fraction and defined contribution fractionshall be computed using one hundred percent (100%) of the maximum dollarlimitation instead of one hundred and twenty-five percent (125%).

 

(8)                                  In any year in which the Plan is aTop-Heavy Plan (as defined in Section 14.2(c)) (but not a Super Top-HeavyPlan), the limitations shall be similarly reduced, subject to the specialprovisions of Section 14.3, which provide for the use of the one hundred andtwenty-five percent (125%) limitation subject to the added minimum allocations.

 

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(b)           *Definitions**.*

 

(1)                                  Annual additions: The following amounts credited to a Participant’s Account for thelimitation year shall be treated as annual additions:

 

(A)                              Employer contributions;

 

(B)                                Elective deferrals;

 

(C)                                Associate after-tax contributions, ifany;

 

(D)                               Forfeitures, if any; and

 

(E)                                 Amounts allocated after March 31,1984 to an individual medical account, as defined in Section 415(l)(2) of theCode, which is part of a pension or annuity plan maintained by theEmployer.  Also, amounts derived fromcontributions paid or accrued after December 31, 1985 in taxable yearsending after such date which are attributable to post-retirement medicalbenefits allocated to the separate account of a Key Employee, as defined inSection 419A(d)(3), and amounts under a welfare benefit fund, as defined inSection 419(e), maintained by the Employer, shall be treated as annualadditions to a defined contribution plan.

 

Employer and employee contributionstaken into account as annual additions shall include “excess contributions” asdefined in Section 401(k)(8)(B) of the Code, “excess aggregate contributions”as defined in Section 401(m)(6)(B) of the Code, and “excess deferrals” asdefined in Section 402(g) of the Code, regardless of whether such amounts aredistributed, recharacterized or forfeited, unless such amounts constituteexcess deferrals that were distributed to the Participant no later than April15 of the taxable year following the taxable year of the Participant in whichsuch deferrals were made.

 

For this purpose, anyexcess amount applied under Section 12.1(a)(4) in the limitation year to reduceEmployer contributions shall be considered annual additions for such limitationyear.

 

Notwithstanding theforegoing, for any Plan Year in which no more than one-third (1/3rd)of the Employer contributions are allocated to the ASOP Fund on behalf ofParticipants who are Highly-Compensated Associates, the annual addition shallnot include (1) forfeitures of shares of Employer Stock which were acquiredwith the proceeds of an ASOP Loan and (2) contributions of the Employerwhich are applied to the payment of interest on an ASOP Loan.

 

(2)                                  Compensation: For purposes of determining maximum permitted benefits under thisSection, compensation shall include all of a Participant’s earned income,wages, salaries, and fees for professional services, and other amounts receivedfor 

 

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personal services actuallyrendered in the course of employment with the Employer, including, but notlimited to, commissions paid to salesmen, compensation for services on thebasis of a percentage of profits, commissions on insurance premiums, tips andbonuses, and effective for limitation years beginning after December 31, 1997,including also any elective deferrals (as defined in Section 402(g)(3) of theCode) made by an Associate to the Plan and any amount contributed or deferredby an Associate on an elective basis and not includable in the gross income ofthe Associate under Section 125 of the Code; and excluding the following:

 

(A)                              Except as provided in the precedingparagraph of this Section 12.1(b)(2), Employer contributions to a plan ofdeferred compensation which are not included in the Associate’s gross incomefor the taxable year in which contributed, or Employer contributions under asimplified employee pension plan (funded with individual retirement accounts orannuities) to the extent such contributions are deductible by the Associate, orany distributions from a plan of deferred compensation;

 

(B)                                Amounts realized from the exercise of anonqualified stock option, or when restricted stock (or property) held by theAssociate either becomes freely transferable or is no longer subject to asubstantial risk of forfeiture;

 

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

 

(D)                               Other amounts which received special taxbenefits, or contributions made by the Employer (whether or not under a salaryreduction agreement) toward the purchase of an annuity described in Section403(b) of the Code (whether or not the amounts are actually excludable from thegross income of the Associate).

 

Compensation shall bemeasured on the basis of compensation paid in the limitation year.

 

(3)                                  Defined benefit fraction: This shall mean a fraction, the numerator of which is the sum of theParticipant’s projected annual benefits under all the defined benefit plansmaintained or previously maintained by the Employer, and the denominator ofwhich is the lesser of one hundred and twenty-five percent (125%) of the dollarlimitation in effect for the limitation year under Section 415(b)(1)(A) of theCode or one hundred and forty percent (140%) of the highest averagecompensation including any adjustment under Code Section 415(b).

 

(4)                                  Defined contribution fraction: This shall mean a fraction, the numerator of which is the sum of theannual additions to the Participant’s account under all the definedcontribution plans (whether or not terminated), welfare benefit funds, andindividual medical accounts maintained by the Employer for the current and allprior limitation years, and the denominator of which is the sum of the maximum 

 

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aggregate amounts for thecurrent and all prior limitation years of Service with the Employer, regardlessof whether a defined contribution plan was maintained by the Employer.

 

The maximum aggregate amountin any limitation year is the lesser of one hundred and twenty-five percent(125%) of the dollar limitation then in effect under Section 415(c)(1)(A) ofthe Code or thirty-five (35%) of the Participant’s compensation for such year.

 

If the Associate, as ofthe end of the first day of the first limitation year beginning afterDecember 31, 1986, was a participant in one (1) or more definedcontribution plans maintained by the Employer which were in existence onMay 5, 1986, the numerator of this fraction shall be adjusted if the sumof this fraction and the defined benefit fraction would otherwise exceed 1.0under the terms of this Plan.  Under theadjustment, an amount equal to the product of (i) the excess of the sum of thefractions over 1.0 and (ii) the denominator of this fraction, will bepermanently subtracted from the numerator of this fraction.  The adjustment is calculated using thefractions as they would be computed as of the end of the last limitation yearbeginning before January 1, 1987, and disregarding any changes in theterms and conditions of the Plan made after May 5, 1986, but using theCode Section 415 limitation applicable to the first limitation yearbeginning on or after January 1, 1987.

 

The annual addition forany limitation year beginning before January 1, 1987, shall not be recomputedto treat all Associate contributions as annual additions.

 

(5)                                  Defined contribution dollar limitation: Effective January 1, 1995, this shall mean $30,000, as adjusted underSection 415(d) of the Code.

 

(6)                                  Employer:  This termrefers to the Employer that adopts this Plan, and all members of a controlledgroup of corporations (as defined in Section 414(b) of the Code, as modified bySection 415(h)), commonly-controlled trades or businesses (as defined inSection 414(c), as modified by Section 415(h)), or affiliated service groups(as defined in Section 414(m)) of which the Employer is a part, or any otherentity required to be aggregated with the Employer under Code Section 414(o).

 

(7)                                  Highest average compensation: This means the average compensation for the three (3) consecutivelimitation years with the Employer that produces the highest average.

 

(8)                                  Limitation year: This shall mean the Plan Year, unless the Employer elects a differenttwelve (12) consecutive month period. The election shall be made by the adoption of a Plan amendment by theEmployer.  If the limitation year isamended to a different twelve (12) consecutive month period, the new limitationyear must begin on a date within the limitation year in which the amendment ismade.

 

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(9)                                  Maximum permissible amount: This shall mean an amount equal to the lesser of the definedcontribution dollar limitation or twenty-five percent (25%) of theParticipant’s compensation for the limitation year.  If a short limitation year is created because of an amendmentchanging the limitation year to a different twelve (12)-consecutive monthperiod, the maximum permissible amount shall not exceed the definedcontribution dollar limitation multiplied by the following fraction:

 

Number of monthsin the short limitation year

12

 

(10)                            Projected annual benefit: This is the annual retirement benefit (adjusted to an actuariallyequivalent straight life annuity if such benefit is expressed in a form otherthan a straight life annuity or qualified joint and survivor annuity) to whichthe Participant would be entitled under the terms of the plan, assuming:

 

(A)                              the Participant will continue employmentuntil normal retirement age under the plan (or current age, if later), and

 

(B)                                the Participant’s compensation for thecurrent limitation year and all other relevant factors used to determinebenefits under the plan will remain constant for all future limitation years.

 

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**ARTICLETHIRTEEN—AMENDMENT AND TERMINATION**

 

**13.1****                       ****AMENDMENT****. **The Employer, by resolution of its boardof directors, (or, to the extent permitted by resolution of such board ofdirectors, by action of a duly authorized officer of the Employer) shall havethe right to amend, alter or modify the Plan at any time, or from time to time,in whole or in part.  Any such amendmentshall become effective under its terms upon adoption by the Employer.  However, no amendment affecting the duties,powers or responsibilities of the Trustee may be made without the writtenconsent of the Trustee.  No amendmentshall be made to the Plan which shall:

 

(a)                                  make it possible (other than as providedin Section 15.3) for any part of the corpus or income of the Trust Fund (otherthan such part as may be required to pay taxes and administrative expenses) tobe used for or diverted to purposes other than the exclusive benefit of theParticipants or their Beneficiaries;

 

(b)                                 decrease a Participant’s account balanceor eliminate an optional form of payment with respect to benefits accrued as ofthe later of (i) the date such amendment is adopted, or (ii) the date theamendment becomes effective; or

 

(c)                                  alter the schedule for vesting in aParticipant’s Account with respect to any Participant with three (3) or moreYears of Vesting Service without his consent or deprive any Participant of anynonforfeitable portion of his Account.

 

Notwithstanding the otherprovisions of this Section or any other provisions of the Plan, any amendmentor modification of the Plan may be made retroactively if necessary orappropriate to conform to or to satisfy the conditions of any law, governmentalregulation, or ruling, and to meet the requirements of the Employee RetirementIncome Security Act of 1974, as it may be amended.

 

**13.2****                       ****TERMINATION OF THE PLAN.**** **The Employer, by resolution of its boardof directors, reserves the right at any time and in its sole discretion todiscontinue payments under the Plan and to terminate the Plan.  In the event the Plan is terminated, or uponcomplete discontinuance of contributions under the Plan by the Employer, therights of each Participant to his Account on the date of such termination ordiscontinuance of contributions, to the extent of the fair market value underthe Trust Fund, shall become fully vested and nonforfeitable.  The Employer shall direct the Trustee todistribute the Trust Fund in accordance with the Plan’s distribution provisionsto the Participants and their Beneficiaries, each Participant or Beneficiaryreceiving a portion of the Trust Fund equal to the value of his Account as ofthe date of distribution.  Thesedistributions may be implemented by the continuance of the Trust and thedistribution of the Participants’ Account shall be made at such time and insuch manner as though the Plan had not terminated, or by any other appropriatemethod, including rollover into Individual Retirement Accounts.  Upon distribution of the Trust Fund, theTrustee shall be discharged from all obligations under the Trust and noParticipant or Beneficiary shall have any further right or claim therein.  In the event of the partial termination ofthe Plan, the Accounts of all affected 

 

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Participants shall becomefully vested and nonforfeitable and the provisions of the preceding paragraphshall apply with respect to such Participants’ Accounts.

 

**13.3****                       ****DISTRIBUTION UPON SALEOR DISPOSITION OF STOCK OR ASSETS.**** **The vested balances of affected Participants (asdefined below) may be distributed, in a single lump-sum payment, as soon asadministratively practical following:

 

(i)                                     the sale or other disposition of theEmployer’s interest in a subsidiary (within the meaning of Section 409(d)(3) ofthe Code) to an entity that is not a “related group member” (within the meaningof Section 2.5(b)), provided that the Employer and not the acquirer continuesto maintain the Plan after the disposition. In this case, affected Participants shall be those Participants whocontinue employment with such subsidiary.

 

(ii)                                  the sale or other disposition of“substantially all” (within the meaning of Section 1.401(k)-1(d)(4) of theIncome Tax Regulations) of the assets used by the Employer in a trade orbusiness to an unrelated corporation, provided that the Employer and not theacquirer continues to maintain the Plan after the disposition.  In this case, affected Participants shall bethose Participants who continue employment with the corporation acquiring suchassets.

 

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**ARTICLEFOURTEEN—TOP-HEAVY PROVISIONS**

 

**14.1****                       ****APPLICABILITY****. **The provisions of this Article shallbecome applicable only for any Plan Year in which the Plan is a Top-Heavy Plan(as defined in Section 14.2(c)).  Thedetermination of whether the Plan is a Top-Heavy Plan shall be made each PlanYear by the Administrator.

 

**14.2****                       ****DEFINITIONS****. **For purposes of this Article, thefollowing definitions shall apply:

 

(a)                                  **“Key Associate”**:  “Key Associate”shall mean any Associate or former Associate (and the Beneficiaries of suchAssociate) who, at any time during the determination period, was (1) anofficer of the Employer earning compensation (as defined in Section 416(i) ofthe Code) in excess of fifty percent (50%) of the dollar limitation underSection 415(b)(1)(A) of the Code, (2) an owner (or considered an ownerunder Section 318 of the Code) of both more than a one-half percent (1⁄2%)interest in the Employer and one of the ten (10) largest interests in theEmployer if such individual’s compensation exceeds the dollar limitation underSection 415(c)(1)(A) of the Code, (3) a five percent (5%) owner of theEmployer, or (4) a one percent (1%) owner of the Employer who has anannual compensation of more than $150,000. For purposes of this Section, annual compensation shall meancompensation as defined in Code Section 415(c)(3), but including amountscontributed by the Employer pursuant to a salary reduction agreement which areexcludable from the Associate’s income under Code Sections 125, 402(g), 402(h)or 403(b).  The determination period ofthe Plan is the Plan Year containing the “determination date” as defined inSection 14.2(c)(4) and the four (4) preceding Plan Years.

 

The determination of whois a Key Associate (including the terms “5% owner” and “1% owner”) shall bemade in accordance with Section 416(i)(1) of the Code and the regulationsthereunder.

 

(b)                                 **“Super Top-Heavy Plan”**:  The Planshall constitute a “Super Top-Heavy Plan” if it meets the test for status as aTop-Heavy Plan, where “90%” is substituted for “60%” at each place in Section14.2(c).

 

(c)                                  **“Top-Heavy Plan”:**

 

(1)                                  The Plan shall constitute a “Top-HeavyPlan” if any of the following conditions exist:

 

(A)                              The top-heavy ratio for the Plan exceedssixty percent (60%) and the Plan is not part of any required aggregation groupor permissive aggregation group of plans; or

 

(B)                                The Plan is part of a requiredaggregation group of plans (but is not part of a permissive aggregation group)and the top-heavy ratio for the group of plans exceeds sixty percent (60%); or

 

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(C)                                The Plan is a part of a requiredaggregation group of plans and part of a permissive aggregation group and thetop-heavy ratio for the permissive aggregation group exceeds sixty percent(60%).

 

(2)                                  If the Employer maintains one (1) or moredefined contribution plans (including any simplified employee pension planfunded with individual retirement accounts or annuities) and the Employermaintains or has maintained one (1) or more defined benefit plans which havecovered or could cover a Participant in this Plan, the top-heavy ratio is afraction, the numerator of which is the sum of account balances under thedefined contribution plans for all Key Associates and the actuarial equivalentsof accrued benefits under the defined benefit plans for all Key Associates, andthe denominator of which is the sum of the account balances under the definedcontribution plans for all Participants and the actuarial equivalents ofaccrued benefits under the defined benefit plans for all Participants.  Both the numerator and denominator of thetop-heavy ratio shall include any distribution of an account balance or anaccrued benefit made in the five (5)-year period ending on the determinationdate and any contribution due to a defined contribution pension plan but unpaidas of the determination date.  Indetermining the accrued benefit of a non-Key Associate who is participating ina plan that is part of a required aggregation group, the method of determiningsuch benefit shall be either (i) in accordance with the method, if any,that uniformly applies for accrual purposes under all plans maintained by theEmployer or any member of the Employer’s related group (within the meaning ofSection 2.5(b)), or (ii) if there is no such method, as if such benefitaccrued not more rapidly than the slowest accrual rate permitted under thefractional accrual rate of Code Section 411(b)(1)(C).

 

(3)                                  For purposes of (1) and (2) above, thevalue of account balances and the actuarial equivalents of accrued benefitsshall be determined as of the most recent Valuation Date that falls within orends with the twelve (12)-month period ending on the determination date.  The account balances and accrued benefits ofa Participant who is not a Key Associate but who was a Key Associate in a prioryear shall be disregarded.  The accruedbenefits and account balances of Participants who have performed no Hours ofService with any Employer maintaining the plan for the five (5)-year periodending on the determination date shall be disregarded.  The calculations of the top-heavy ratio, andthe extent to which distributions, rollovers, and transfers are taken intoaccount shall be made under Section 416 of the Code and regulations issuedthereunder.  Deductible Associatecontributions shall not be taken into account for purposes of computing thetop-heavy ratio.  When aggregatingplans, the value of account balances and accrued benefits shall be calculatedwith reference to the determination dates that fall within the same calendaryear.

 

(4)                                  Definition of terms for Top-Heavy status:

 

(A)                              **“Top-heavy ratio”** shall mean the following:

 

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(1)                                  If the Employer maintains one or moredefined contribution plans (including any simplified employee pension planfunded with individual retirement accounts or annuities) and the Employer hasnever maintained any defined benefit plans which have covered or could cover aParticipant in this Plan, the top-heavy ratio is a fraction, the numerator ofwhich is the sum of the account balances of all Key Associates as of thedetermination date (including any part of any account balance distributed inthe five (5)-year period ending on the determination date), and the denominatorof which is the sum of the account balances (including any part of any accountbalance distributed in the five (5)-year period ending on the determinationdate) of all Participants as of the determination date.  Both the numerator and the denominator shallbe increased by any contributions due but unpaid to a defined contributionpension plan as of the determination date.

 

(B)                                **“Permissive aggregation group”** shall mean the required aggregation group of plansplus any other plan or plans of the Employer which, when considered as a groupwith the required aggregation group, would continue to satisfy the requirementsof Sections 401(a)(4) and 410 of the Code.

 

(C)                                **“Required aggregation group”** shall mean (i) each qualified plan of theEmployer (including any terminated plan) in which at least one Key Associateparticipates, and (ii) any other qualified plan of the Employer whichenables a plan described in (i) to meet the requirements of Section 401(a)(4)or 410 of the Code.

 

(D)                               **“Determination date”** shall mean, for any Plan Year subsequent to the firstPlan Year, the last day of the preceding Plan Year.  For the first Plan Year of the Plan, “determination date” shallmean the last day of that Plan Year.

 

(E)                                 **“Valuation Date”** shall mean the last day of the Plan Year.

 

(F)                                 Actuarial equivalence shall be based onthe interest and mortality rates utilized to determine actuarial equivalencewhen benefits are paid from any defined benefit plan.  If no rates are specified in said plan, the following shall beutilized:  pre- and post-retirementinterest — five percent (5%); post-retirement mortality based on the UnisexPension (1984) Table as used by the Pension Benefit Guaranty Corporation on thedate of execution hereof.

 

**14.3****                       ****ALLOCATION OF EMPLOYERCONTRIBUTIONS AND FORFEITURES FOR A TOP-HEAVY PLAN YEAR.**

 

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(a)                                  Except as otherwise provided below, inany Plan Year in which the Plan is a Top-Heavy Plan, the Employer contributionsand forfeitures allocated on behalf of any Participant who is a non-KeyAssociate shall not be less than the lesser of three percent (3%) of suchParticipant’s compensation (as defined in Section 12.1(b)(2) and as limited by Section401(a)(17) of the Code) or the largest percentage of Employer contributions,elective deferrals, and forfeitures as a percentage of the Key Associate’scompensation (as defined in Section 12.1(b)(2) and as limited by Section401(a)(17) of the Code), allocated on behalf of any Key Associate for that PlanYear.  This minimum allocation shall bemade even though, under other Plan provisions, the Participant would nototherwise be entitled to receive an allocation or would have received a lesserallocation for the Plan Year because of insufficient Employer contributionsunder Article Four or the Participant’s failure to make elective deferralsunder Section 4.1.

 

(b)                                 The minimum allocation under this Sectionshall not apply to any Participant who was not employed by the Employer on thelast day of the Plan Year.

 

(c)                                  Neither elective deferrals nor Employermatching contributions may be taken into account for the purpose of satisfyingthe minimum allocation.

 

(d)                                 For purposes of the Plan, a non-KeyAssociate shall be any Associate or Beneficiary of such Associate, any formerAssociate, or Beneficiary of such former Associate, who is not or was not a KeyAssociate during the Plan Year ending on the determination date, nor during thefour (4) preceding Plan Years.

 

(e)                                  If no defined benefit plan has ever beenpart of a permissive or required aggregation group of plans of the Employer,the contributions and forfeitures under this step shall be offset by anyallocation of contributions and forfeitures under any other definedcontribution plan of the Employer with a Plan Year ending in the same calendaryear as this Plan’s Valuation Date.

 

(f)                                    There shall be no duplication of theminimum benefits required under Code Section 416.  Benefits shall be provided under defined contribution plansbefore under defined benefit plans.  Ifa defined benefit plan (active or terminated) is part of the permissive orrequired aggregation group of plans, the allocation method of subparagraph (a)above shall apply, except that “3%” shall be increased to “5%.”

 

(g)                                 There shall be no duplication of theminimum benefits required under Code Section 416.  Benefits shall be provided under defined contribution plansbefore defined benefit plans.  If adefined benefit plan (active or terminated) is part of the permissive orrequired aggregation group of plans, and if any Participant in the Plan wouldhave his benefits limited due to the application of the Code limitation rule inSection 12.1 in a Plan Year in which the Plan is a Top-Heavy Plan but not aSuper Top-Heavy Plan, the allocation method of subparagraph (f) above shallapply, except that “5%” shall be increased to “7.5%.”  In the event any Participant in the Plan would have his benefitslimited due to the application of the special Code limitation rule in Section12.1 in a Plan Year in which the Plan is a Top-Heavy Plan but not a SuperTop-Heavy Plan and the Participant is 

 

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covered only by a definedcontribution plan, the allocation method of subparagraph (a) shall apply,except that “3%” shall be increased to “4%”.

 

**14.4****                       ****VEST****ING. **The provisions contained in Section 6.1relating to vesting shall continue to apply in any Plan Year in which the Planis a Top-Heavy Plan, and apply to all benefits within the meaning of Section411(a)(7) of the Code except those attributable to Associate contributions andelective deferrals under Section 4.1, including benefits accrued beforethe effective date of Section 416 and benefits accrued before the Plan became aTop-Heavy Plan.  Further, no reductionin vested benefits may occur in the event the Plan’s status as a Top-Heavy Planchanges for any Plan Year and the vesting schedule is amended.  In addition, if a Plan’s status changes froma Top-Heavy Plan to that of a non-Top-Heavy Plan, a Participant with three (3)Years of Vesting Service shall continue to have his vested rights determinedunder the schedule which he selects, in the event the vesting schedule issubsequently amended.

 

Payment of a Participant’svested Account balance under this Section shall be made in accordance with theprovisions of Article Seven.

 

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**ARTICLEFIFTEEN — MISCELLANEOUS PROVISIONS**

 

**15.1****                       ****PLAN DOES NOT AFFECTEMPLOYMENT.**** **Neither the creation of this Plan, any amendmentthereto, the creation of any fund nor the payment of benefits hereunder shallbe construed as giving any legal or equitable right to any Associate orParticipant against the Employer, its officers or Associates, or against theTrustee.  All liabilities under thisPlan shall be satisfied, if at all, only out of the Trust Fund held by theTrustee.  Participation in the Planshall not give any Participant any right to be retained in the employ of theEmployer, and the Employer hereby expressly retains the right to hire anddischarge any Associate at any time with or without cause, as if the Plan hadnot been adopted, and any such discharged Participant shall have only suchrights or interests in the Trust Fund as may be specified herein.

 

**15.2****                       ****SUCCESSOR TO THEEMPLOYER.**** **In the event of the merger, consolidation,reorganization or sale of assets of the Employer, under circumstances in whicha successor person, firm, or corporation shall carry on all or a substantialpart of the business of the Employer, and such successor shall employ asubstantial number of Associates of the Employer and shall elect to carry onthe provisions of the Plan, such successor shall be substituted for theEmployer under the terms and provisions of the Plan upon the filing in writingwith the Trustee of its election to do so.

 

**15.3****                       ****REPAYMENTS TO THEEMPLOYER****. **Notwithstanding any provisions of this Plan to thecontrary:

 

(a)                                  Any monies or other Plan assetsattributable to any contribution made to this Plan by the Employer because of amistake of fact shall be returned to the Employer within one (1) year after thedate of contribution.

 

(b)                                 Any monies or other Plan assetsattributable to any contribution made to this Plan by the Employer shall berefunded to the Employer, to the extent such contribution is predicated on thedeductibility thereof under the Code and the income tax deduction for suchcontribution is disallowed.  Such amountshall be refunded within one (1) taxable year after the date of suchdisallowance or within one (1) year of the resolution of any judicial oradministrative process with respect to the disallowance.  All Employer contributions hereunder areexpressly contributed based upon such contributions’ deductibility under theCode.

 

**15.4****                       ****BENEFITS NOT ASSIGNABLE****. **Except as provided in Section 414(p) ofthe Code with respect to “qualified domestic relations orders,” the rights ofany Participant or his Beneficiary to any benefit or payment hereunder shallnot be subject to voluntary or involuntary alienation or assignment.

 

With respect to any “qualified domestic relationsorder” relating to the Plan, the Plan shall permit distribution to an alternatepayee under such order at any time, irrespective of whether the 

 

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Participant has attained his “earliest retirement age”(within the meaning of Section 414(p)(4)(B) of the Code) under the Plan.  A distribution to an alternate payee priorto the Participant’s attainment of his earliest retirement age shall, however,be available only if the order specifies distribution at that time or permitsan agreement between the Plan and the alternate payee to authorize an earlierdistribution.  Nothing in this paragraphshall, however, give a Participant a right to receive distribution at a timeotherwise not permitted under the Plan nor does it permit the alternate payeeto receive a form of payment not otherwise permitted under the Plan or undersaid Section 414(p) of the Code.

 

**15.5****                       ****MERGER OF PLANS****. **In the case of any merger orconsolidation of this Plan with, or transfer of the assets or liabilities ofthe Plan to, any other plan, the terms of such merger, consolidation ortransfer shall be such that each Participant would receive (in the event oftermination of this Plan or its successor immediately thereafter) a benefitwhich is no less than what the Participant would have received in the event oftermination of this Plan immediately before such merger, consolidation ortransfer.

 

**15.6****                       ****INVESTMENT EXPERIENCE NOT A FORFEITURE.**** **The decrease in value of any Account dueto adverse investment experience shall not be considered an impermissible“forfeiture” of any vested balance.

 

**15.7****                       ****CONSTRUCTION.**** **Wherever appropriate, the use of the masculine gendershall be extended to include the feminine and/or neuter or vice versa; and thesingular form of words shall be extended to include the plural; and the pluralshall be restricted to mean the singular.

 

**15.8****                       ****GOVERNING DOCUMENTS.**** **A Participant’s rights shall bedetermined under the terms of the Plan as in effect at the Participant’s dateof separation from Service.

 

**15.9****                       ****GOVERNING LAW****. **The provisions of this Plan shall be construed underthe laws of the state of the situs of the Trust, except to the extent such lawsare preempted by Federal law.

 

**15.10****                ****HEADINGS****. **The Article headings and Section numbersare included solely for ease of reference. If there is any conflict between such headings or numbers and the textof the Plan, the text shall control.

 

**15.11****                ****COUNTERPARTS.**** **This Plan may be executed in any number ofcounterparts, each of which shall be deemed an original; said counterpartsshall constitute but one and the same instrument, which may be sufficientlyevidenced by any one counterpart.

 

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**15.12****                ****LOCATION OF PARTICIPANT OR BENEFICIARY UNKNOWN.**** **In the event that all or any portion ofthe distribution payable to a Participant or to a Participant’s Beneficiaryhereunder shall, at the expiration of five (5) years after it shall becomepayable, remain unpaid solely by reason of the inability of the Administratorto ascertain the whereabouts of such Participant or Beneficiary, after sendinga registered letter, return receipt requested, to the last known address, andafter further diligent effort, the amount so distributable shall be used to payPlan expenses and/or reallocated in the same manner as a forfeiture underSection 6.2 pursuant to this Plan.  Inthe event a Participant or Beneficiary is located subsequent to the forfeitureof his Account balance, such Account balance shall be restored.

 

 

 

 

**INWITNESS WHEREOF,**theEmployer, by its duly authorized officer, has caused this Plan to be executedon the **                           **day of **                           **,2000.

 
|   |   |   |   |   |   | **FIRST  CONSULTING GROUP, INC.** |
|--------|--------|--------|--------|--------|--------|-----------------------------------|
|   |   |   |   |   |   |                              |
|   |   |   |   |   |   |                              |
|   |   |   |   |   |   | By                                |   |   |
|   |   |   |   |   |   |                              | Authorized Officer |   |

 

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