EXHIBIT 10.6


 


HERBALIFE
INTERNATIONAL, INC.


 


HERBALIFE
INTERNATIONAL EMPLOYEES


 


401(K)
PROFIT SHARING PLAN AND TRUST


 


I N D E X


 


PART I


 
















 


	
  ARTICLE

  	
   

  	
  DESCRIPTION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  I

  	
  INTRODUCTION

  	
   

  
	
   

  	
  1.1.1

  	
  Adoption, and Title

  	
   

  
	
   

  	
  1.1.2

  	
  Effective Date

  	
   

  
	
   

  	
  1.1.3

  	
  Purpose

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  II

  	
  DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  PART II

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  I

  	
  PARTICIPATION

  	
   

  
	
   

  	
  2.1.1

  	
  Eligibility Requirements

  	
   

  
	
   

  	
  2.1.2

  	
  Commencement of
  Participation

  	
   

  
	
   

  	
  2.1.3

  	
  Participation Upon
  Re-Employment

  	
   

  
	
   

  	
  2.1.4

  	
  Termination of
  Participation

  	
   

  
	
   

  	
  2.1.5

  	
  Determination of
  Eligibility

  	
   

  
	
   

  	
  2.1.6

  	
  Omission of Eligible
  Employee

  	
   

  
	
   

  	
  2.1.7

  	
  Inclusion of
  Ineligible Participant

  	
   

  
	
   

  	
  2.1.8

  	
  Election Not to Participate

  	
   

  
	
   

  	
  2.1.9

  	
  Change in Status

  	
   

  
	
   

  	
  2.1.10

  	
  Existing Participants

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CONTRIBUTIONS

  	
   

  
	
   

  	
  2.2.1

  	
  Employer Contributions

  	
   

  
	
   

  	
  2.2.2

  	
  Elective
  Contributions by the Employer on Behalf of Electing Employees

  	
   

  
	
   

  	
  2.2.3

  	
  Employee Contributions

  	
   

  
	
   

  	
  2.2.4

  	
  Return of Contributions

  	
   

  



 
















 


	
  Effective: January 1, 1989

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE

  	
   

  	
  DESCRIPTION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  III

  	
  ALLOCATIONS

  	
   

  
	
   

  	
  2.3.1

  	
  Non-Elective Contribution

  	
   

  
	
   

  	
  2.3.2

  	
  Minimum Allocation

  	
   

  
	
   

  	
  2.3.3

  	
  Fail-Safe Allocation

  	
   

  
	
   

  	
  2.3.4

  	
  Matching Contributions

  	
   

  
	
   

  	
  2.3.5

  	
  Elective Contributions

  	
   

  
	
   

  	
  2.3.6

  	
  Qualified
  Non-Elective Contributions

  	
   

  
	
   

  	
  2.3.7

  	
  Limitation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  IV

  	
  BENEFITS

  	
   

  	
   

  
	
   

  	
  2.4.1

  	
  Distributable Benefit

  	
   

  
	
   

  	
  2.4.2

  	
  Vesting

  	
   

  
	
   

  	
  2.4.3

  	
  Leave of Absence

  	
   

  
	
   

  	
  2.4.4

  	
  Re-Employment

  	
   

  
	
   

  	
  2.4.5

  	
  Distribution
  Determination Date

  	
   

  
	
   

  	
  2.4.6

  	
  Forfeitures

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  V

  	
  DISTRIBUTIONS

  	
   

  
	
   

  	
  2.5.1

  	
  Commencement of
  Distribution

  	
   

  
	
   

  	
  2.5.2

  	
  Method of Distribution

  	
   

  
	
   

  	
  2.5.3

  	
  Nature of Distributions

  	
   

  
	
   

  	
  2.5.4

  	
  Advance Distributions

  	
   

  
	
   

  	
  2.5.5

  	
  In Service Distributions

  	
   

  
	
   

  	
  2.5.6

  	
  Hardship Distributions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  VI

  	
  CONTINGENT TOP HEAVY
  PROVISIONS

  	
   

  
	
   

  	
  2.6.1

  	
  Top Heavy Requirements

  	
   

  
	
   

  	
  2.6.2

  	
  Top Heavy Definitions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  VII

  	
  SPECIAL CODA LIMITATIONS

  	
   

  
	
   

  	
  2.7.1

  	
  Limitation
  on Deferral Percentage for Highly Compensated Employees

  	
   

  
	
   

  	
  2.7.2

  	
  Multiple Plan Limitations

  	
   

  
	
   

  	
  2.7.3

  	
  Limitation on
  Matching Contribution

  	
   

  
	
   

  	
  2.7.4

  	
  Special Rules

  	
   

  
	
   

  	
  2.7.5

  	
  Distribution of
  Excess Elective Deferrals

  	
   

  



 
















 


	
  ARTICLE

  	
   

  	
  DESCRIPTION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.7.6

  	
  Distribution of
  Excess Contribution

  	
   

  
	
   

  	
  2.7.7

  	
  Distribution
  of Excess Aggregate Contributions

  	
   

  
	
   

  	
  2.7.8

  	
  Limitation on Distributions

  	
   

  
	
   

  	
  2.7.9

  	
  Limitation on Elective
  Deferrals

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  PART III

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  I

  	
  ACCOUNTING

  	
   

  
	
   

  	
  3.1.1

  	
  Accounts

  	
   

  
	
   

  	
  3.1.2

  	
  Adjustments

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  II

  	
  LIMITATIONS

  	
   

  
	
   

  	
  3.2.1

  	
  Limitations on Annual
  Additions

  	
   

  
	
   

  	
  3.2.2

  	
  Controlled Businesses

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  III

  	
  FIDUCIARIES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.3.1

  	
  Standard of Conduct

  	
   

  
	
   

  	
  3.3.2

  	
  Individual Fiduciaries

  	
   

  
	
   

  	
  3.3.3

  	
  Disqualification from
  Service

  	
   

  
	
   

  	
  3.3.4

  	
  Bonding

  	
   

  
	
   

  	
  3.3.5

  	
  Prior Acts

  	
   

  
	
   

  	
  3.3.6

  	
  Insurance and Indemnity

  	
   

  
	
   

  	
  3.3.7

  	
  Expenses

  	
   

  
	
   

  	
  3.3.8

  	
  Agents,
  Accountants and Legal Counsel

  	
   

  
	
   

  	
  3.3.9

  	
  Investment Manager

  	
   

  
	
   

  	
  3.3.10

  	
  Finality of Decisions or
  Acts

  	
   

  
	
   

  	
  3.3.11

  	
  Certain
  Custodial Accounts and Contracts

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  IV

  	
  PLAN ADMINISTRATOR

  	
   

  
	
   

  	
  3.4.1

  	
  Administration of Plan

  	
   

  
	
   

  	
  3.4.2

  	
  Disclosure Requirements

  	
   

  
	
   

  	
  3.4.3

  	
  Information Generally
  Available

  	
   

  
	
   

  	
  3.4.4

  	
  Statement of Accrued
  Benefit

  	
   

  
	
   

  	
  3.4.5

  	
  Explanation of
  Rollover Treatment

  	
   

  



 
















 


	
  ARTICLE

  	
   

  	
  DESCRIPTION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  V

  	
  TRUSTEE

  	
   

  	
   

  
	
   

  	
  3.5.1

  	
  Acceptance of Trust

  	
   

  
	
   

  	
  3.5.2

  	
  Trustee Capacity -
  Co-Trustee

  	
   

  
	
   

  	
  3.5.3

  	
  Resignation, Removal
  and Successors

  	
   

  
	
   

  	
  3.5.4

  	
  Consultations

  	
   

  
	
   

  	
  3.5.5

  	
  Rights, Powers and Duties

  	
   

  
	
   

  	
  3.5.6

  	
  Trustee Indemnification

  	
   

  
	
   

  	
  3.5.7

  	
  Changes in Trustee
  Authority

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  VI

  	
  TRUST ASSETS

  	
   

  
	
   

  	
  3.6.1

  	
  Trustee Exclusive Owner

  	
   

  
	
   

  	
  3.6.2

  	
  Investments

  	
   

  
	
   

  	
  3.6.3

  	
  Administration of Trust
  Assets

  	
   

  
	
   

  	
  3.6.4

  	
  Segregated Funds

  	
   

  
	
   

  	
  3.6.5

  	
  Investment Control Option

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  VII

  	
  LOANS

  	
   

  	
   

  
	
   

  	
  3.7.1

  	
  Authorization

  	
   

  
	
   

  	
  3.7.2

  	
  Spousal Consent

  	
   

  
	
   

  	
  3.7.3

  	
  Limitations

  	
   

  
	
   

  	
  3.7.4

  	
  Availability

  	
   

  
	
   

  	
  3.7.5

  	
  Prohibitions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  VIII

  	
  BENEFICIARIES

  	
   

  
	
   

  	
  3.8.1

  	
  Designation of
  Beneficiaries

  	
   

  
	
   

  	
  3.8.2

  	
  Absence or Death of
  Beneficiaries

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  IX

  	
  CLAIMS

  	
   

  
	
   

  	
  3.9.1

  	
  Claim Procedure

  	
   

  
	
   

  	
  3.9.2

  	
  Appeal

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  X

  	
  AMENDMENT AND TERMINATION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.10.1

  	
  Right to Amend

  	
   

  
	
   

  	
  3.10.2

  	
  Manner of Amending

  	
   

  
	
   

  	
  3.10.3

  	
  Limitations on Amendments

  	
   

  
	
   

  	
  3.10.4

  	
  Voluntary Termination

  	
   

  
	
   

  	
  3.10.5

  	
  Involuntary Termination

  	
   

  
	
   

  	
  3.10.6

  	
  Withdrawal By Employer

  	
   

  
	
   

  	
  3.10.7

  	
  Powers Pending Final
  Distribution

  	
   

  
	
   

  	
  3.10.8

  	
  Delegation

  	
   

  



 
















 


	
  ARTICLE

  	
   

  	
  DESCRIPTION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  XI

  	
  PORTABILITY

  	
   

  
	
   

  	
  3.11.1

  	
  Continuance by Successor

  	
   

  
	
   

  	
  3.11.2

  	
  Merger With Other Plan

  	
   

  
	
   

  	
  3.11.3

  	
  Transfer From Other Plans

  	
   

  
	
   

  	
  3.11.4

  	
  Transfer to Other Plans

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  XII

  	
  MISCELLANEOUS

  	
   

  
	
   

  	
  3.12.1

  	
  No Reversion to Employer

  	
   

  
	
   

  	
  3.12.2

  	
  Employer Actions

  	
   

  
	
   

  	
  3.12.3

  	
  Execution of
  Receipts and Releases

  	
   

  
	
   

  	
  3.12.4

  	
  Rights of Participants
  Limited

  	
   

  
	
   

  	
  3.12.5

  	
  Persons Dealing
  With Trustee Protected

  	
   

  
	
   

  	
  3.12.6

  	
  Protection of Insurer

  	
   

  
	
   

  	
  3.12.7

  	
  No Responsibility
  for Act of Insurer

  	
   

  
	
   

  	
  3.12.8

  	
  Inalienability

  	
   

  
	
   

  	
  3.12.9

  	
  Domestic Relations orders

  	
   

  
	
   

  	
  3.12.10

  	
  Authorization to
  Withhold Taxes

  	
   

  
	
   

  	
  3.12.11

  	
  Missing Persons

  	
   

  
	
   

  	
  3.12.12

  	
  Notices

  	
   

  
	
   

  	
  3.12.13

  	
  Governing Law

  	
   

  
	
   

  	
  3.12.14

  	
  Severability of Provisions

  	
   

  
	
   

  	
  3.12.15

  	
  Gender and Number

  	
   

  
	
   

  	
  3.12.16

  	
  Binding Effect

  	
   

  
	
   

  	
  3.12.17

  	
  Qualification
  Under Internal Revenue Laws

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  XIII

  	
  EXECUTION OF AGREEMENT

  	
   

  
	
   

  	
  3.13.1

  	
  Counterparts

  	
   

  
	
   

  	
  3.13.2

  	
  Acceptance by Trustee

  	
   

  
	
   

  	
  3.13.3

  	
  Execution

  	
   

  



 
















 


HERBALIFE


INTERNATIONAL EMPLOYEES 401 (K)
PROFIT SHARING PLAN AND TRUST


 


THIS AGREEMENT is made this 22 day of
December, 1994, by and between Herbalife International, Inc. (“the Employer”)
and Christopher Pair and Timothy Gerrity (collectively “the Trustee”).


 


PART I


 


ARTICLE I


 


INTRODUCTION


 


1.1.1                                                                        ADOPTION
AND TITLE.  The Employer and Trustee
hereby adopt and restate the Plan and Trust to be known as HERBALIFE
INTERNATIONAL EMPLOYEES 401(K) PROFIT SHARING PLAN AND TRUST.


 


1.1.2                                                                        EFFECTIVE
DATE.  The provisions of this amended and
restated Plan and Trust which was originally effective January 1, 1985
shall be effective as of January 1, 1989, hereinafter the Effective Date.


 


1.1.3                                                                        PURPOSE.
This Plan and Trust is established for the purpose of providing retirement
benefits to eligible employees in accordance with the Plan and Trust.  If the Plan is a cash or deferred profit sharing
plan, the Plan is also intended to enable eligible Employees to supplement
their retirement by electing to have the Employer contribute amounts to the
Plan and Trust in lieu of payments to such Employees in cash.  Under such circumstances, the Plan and. Trust
are intended to satisfy the provisions of Section 401(k) of the Internal
Revenue Code of 1986, as amended.


 


1
















 


ARTICLE II


 


DEFINITIONS


 


As used in this
Plan and the Trust, the following terms shall have the following meanings:


 


1.2.1                                                                        “ACCOUNT”:
The Employer Account, Controlled Account, Elective Contribution Account,
Matching Account, Qualified Non-Elective Contribution Account, Voluntary
Account or Segregated Account of a Participant, as the context requires,
established and maintained for accounting purposes.


 


1.2.2                                                                        “ACP”:
The average contribution percentage determined in accordance with the
provisions of Part II, Article VII.


 


1.2.3                                                                        “ACT”:
The Employee Retirement Income Security Act of 1974, as amended from time to
time.


 


1.2.4                                                                        “ADP”:
The actual deferral percentage determined in accordance with the provisions of
Part II, Article VII.


 


1.2.5                                                                        “ANNIVERSARY
DATE”: The last day of each Plan Year.


 


1.2.6                                                                        “BENEFICIARY”:
The person or persons entitled to receive the benefits which may be payable
upon or after a Participant’s death.


 


1.2.7                                                                        “BOARD
OF DIRECTORS”: The board of directors of an incorporated Employer.


 


1.2.8                                                                        “BREAK
IN SERVICE”: The failure of a Participant to complete more than 500 Hours of
Service during any twelve (12) consecutive month Plan Year beginning with a
Participant’s first computation period after becoming a Participant.  A Year of Service and a Break in Service for
vesting purposes shall be measured on the same computation period.  The Eligibility Computation Period and a
Break in Service for eligibility purposes shall be measured on the same
computation period.


 


1.2.9                                                                        “CODE”:  The Internal Revenue Code of 1986, as amended
from time to time.


 


2
















 


1.2.10                                                                  “COMPENSATION”:
All of a Participant’s W-2 compensation (or Earned Income in the case of a
self-employed individual) which is actually paid to the Participant by the
Employer during the Limitation Year; provided that compensation shall also include
any amount which is contributed by the Employer pursuant to a salary reduction
agreement and which is not includible in the gross income of the Employee under
Sections 402(h)(1)(B)(SEP Deferrals), 402(a)(8) (401(k) deferrals), 403(b) and
457(b) of the Code; however, Compensation shall not include amounts received
for bonuses; provided further that the annual gross compensation taken into
account for purposes of the Plan shall not exceed $200,000, as such amount may
be adjusted by the Secretary of the Treasury at the same time and in the same
manner as under Section 415(d) of the Code, except that the dollar
increase in effect on January 1 of any calendar year is effective for
years beginning in such calendar year and the first adjustment to the $200,000
limitation is effected on January 1, 1990. 
If the plan determines compensation for a period of time that contains
less than twelve (12) calendar months, then the annual compensation limit is an
amount equal to the annual compensation limit for the calendar year in which
the compensation period begins multiplied by the ratio obtained by dividing the
number of full months in the period by 12. 
For purposes of this dollar limitation, the rules of
Section 414(q)(6) of the Code requiring the aggregation of the
compensation of family members shall apply, except that in applying such rules,
the term “family” shall include only the spouse of the Participant and any
lineal descendants of the Participant who have not attained age nineteen (19)
before the close of the year.  If, as a
result of the application of such rules the adjusted $200,000 limitation is
exceeded, then (except for purposes of determining the portion of compensation
up to the Social Security Integration Level if this Plan provides for permitted
disparity), the limitation shall be prorated among the affected individuals in
proportion to each such individuals compensation as determined under this
Section prior to the application of this limitation.


 


3
















 


If compensation for any prior plan year is
taken into account in determining an employee’s contributions or benefits for
the current year, the compensation for such prior year is subject to the
applicable annual compensation limit in effect for that prior year.  For this purpose, for years beginning before
January 1, 1990, the applicable annual compensation limit is $200,000.


 


For the initial year of participation,
Compensation from the first day of the Plan Year shall be considered.


 


1.2.11                                                                  “CONTROLLED
ACCOUNT”: An account established and maintained for a Participant to account
for his interest in a Segregated Fund over which he exercises investment
control.


 


1.2.12                                                                  “DISTRIBUTABLE
BENEFIT”: The benefit to which a Participant is entitled following termination
of his employment.


 


1.2.13                                                                  “DISTRIBUTION
DETERMINATION DATE”: The date as of which the Distributable Benefit of a
Participant is determined.


 


1.2.14                                                                  “EARLY
RETIREMENT AGE”: The Plan does not provide an Early Retirement Age.


 


1.2.15                                                                  “EARLY
RETIREMENT DATE”: The Plan does not provide an Early Retirement Date.


 


1.2.16                                                                  “EARNED
INCOME”: The net earnings from self-employment in the trade or business with
respect to which the Plan is established for which personal services of the
Participant are a material income-producing factor. Net earnings shall be
determined without regard to items not included in gross income and the
deductions allocable to such items but, in the case of taxable years beginning
after 1989, with regard to the deduction allowed by Section 164(f) of the
Code.  Net earnings shall be reduced by
contributions to a qualified plan to the extent deductible under
Section 404 of the Code.


 


1.2.17                                                                  “ELECTIVE
CONTRIBUTION ACCOUNT”: An Account established and maintained for a Participant
to account for the Elective Contributions made on his behalf.


 


4
















 


1.2.18                                                                  “ELECTIVE
CONTRIBUTION”:  A contribution to the
Plan by the Employer on behalf of an electing Employee.


 


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


 


1.2.20                                                                  “ELIGIBILITY
COMPUTATION PERIOD”:  For purposes of
determining Years of Service and Breaks in Service for purposes of eligibility,
the initial eligibility computation period is the twelve (12) consecutive month
period beginning with the employment commencement date on which the Employee
first renders an Hour of Service for the Employer and the subsequent
eligibility computation periods are each subsequent twelve (12) consecutive
month period commencing on the annual anniversary of such employment
commencement date.


 


1.2.21                                                                  “EMPLOYEE”:
A person who is currently or hereafter employed by the Employer, or by any
other employer aggregated under Section 414(b), (c), (m) or (o) of the
Code and the regulations thereunder, including


 


•                       independent
contractors;


•                       employees
paid on a commissioned basis;


•                       employees
paid on an hourly basis;


•                       employees
paid on a salaried basis.


 


5
















 


but excluding:


 


•                       employees
who are included in the unit of employees covered by a collective bargaining
agreement, provided that retirement benefits were the subject of good faith
negotiations;


•                       an employee
who is a non-resident alien deriving no earned income from the Employer which
constitutes income from sources within the United States;


•                       self-employed
individuals.


 


1.2.22                                                                  “EMPLOYER”:  The Employer and, except where the context
expressly indicates to the contrary, each Affiliate Employer that is a party to
this Agreement, or any of their respective successors or assigns which adopt
the Plan; provided, however, that no mere change in the identity, form or
organization of the Employer shall affect its status under the Plan in any
manner, and, if the name of the Employer is hereinafter changed, references
herein to the Employer shall be deemed to refer to the Employer as it is then
known.


 


1.2.23                                                                  “EMPLOYER
ACCOUNT”:  An Account established and
maintained for a Participant for accounting purposes to which his share of
Employer contributions and forfeitures are added.


 


1.2.24                                                                  “ENTRY
DATE”:  The first day of the successive
six (6) month periods beginning with the first day of the Plan Year.


 


1.2.25                                                                  “EXCESS
AGGREGATE CONTRIBUTIONS”: With respect to any Plan Year, the excess of:


 


(a)          The
aggregate contribution percentage amounts taken into account in computing the
numerator of the contribution percentage actually made on behalf of Highly
Compensated Employees for such Plan Year, over


 


(b)         The
maximum contribution percentage amounts permitted by the ACP test (determined
by reducing contributions made on behalf of Highly Compensated Employees in
order of their contribution percentages beginning with the highest of such
percentages).


 


6
















 


Such determination shall be made after
first determining Excess Elective Deferrals and then determining Excess
Contributions.


 


1.2.26                                                                  “EXCESS
CONTRIBUTIONS”:  With respect to any Plan
Year, the excess of:


 


(A)      The
aggregate amount of Employer Contributions actually taken into account in
computing the ADP of Highly Compensated Employees for such Plan Year, over


 


(B)        The
maximum amount of such contributions permitted by the ADP test (determined by
reducing contributions made on behalf of Highly Compensated Employees in order
of the ADPs, beginning with the highest of such percentages.


 


1.2.27                                                                  “EXCESSIVE
ANNUAL ADDITION”: The portion of the allocation of contributions and forfeitures
that cannot be added to a Participant’s Accounts due to the limitations on
annual additions contained in the Plan.


 


1.2-28                                                                 “EXCESS
ELECTIVE DEFERRALS”: Those Elective Deferrals that are includible in a
Participant’s gross income under Section 402(g) of the Code to the extent
such participant’s Elective Deferrals for a taxable year exceed the dollar
limitation under such Code section. 
Excess Elective Deferrals shall be treated as annual additions under the
Plan.


 


1.2.29                                                                  “FAMILY”:
The spouse and lineal ascendants or descendants of an Employee and the spouses
of such lineal ascendants and descendants.


 


1.2.30                                                                  “FIDUCIARY”:  The Plan Administrator, the Trustee and any
other person who has discretionary authority or control in the management of
the Plan or the disposition of Trust assets.


 


7
















 


1.2.31                                                                  “HIGHLY
COMPENSATED EMPLOYEE”: A highly compensated active employee and a highly
compensated former employee.  A highly
compensated active employee includes: any Employee who performs service for the
Employer during the determination year and who, during the look-back year: (i)
received compensation from the Employer in excess of $75,000 (as adjusted
pursuant to Section 415(d) of the Code); (ii) received compensation from
the Employer in excess of $50,000 (as adjusted pursuant to Section 415(d)
of the Code) and was a member of the top-paid group for such year; or (iii) was
an officer of the Employer and received compensation during such year that is
greater than 50 percent of the dollar limitation as in effect under
Section 415(b)(1)(A) of the Code. 
The term highly compensated employee also includes: (i) employees who
are both described in the preceding sentence if the term “determination year”
is substituted for the term “look-back year” and the employee is one of the 100
employees who received the most compensation from the Employer during the
determination year; and (ii) employees who are 5 percent owners at any time
during the look-back year or determination year.


 


If no officer has satisfied the
compensation requirement of (iii) above during either a determination year or
look-back year, the highest paid officer for such year shall be treated as a
highly compensated employee.  For this
purpose, the determination year shall be the Plan Year.  The look-back year shall be the twelve-month
period immediately preceding the determination year and compensation is as
defined in Section 415(c)(3) of the Code including amounts contributed by
the Employer pursuant to a salary reduction agreement and which is not
includible in gross income under Sections 125, 402(a)(8), 402(h) or 403(b) of
the Code.


 


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


 


8
















 


If an Employee is, during a Plan Year or
the preceding Plan Year, a family member of either a 5 percent owner who is an
active or former employee or a Highly Compensated Employee who is one of the 10
most highly compensated employees ranked on the basis of compensation paid by
the Employer during such year, then the family member and the 5 percent owner
or top-ten highly compensated employee shall be aggregated.  In such case, the family member and 5 percent
owner or top-ten highly compensated employee shall be treated as a single
employee receiving compensation and plan contributions or benefits equal to the
sum of such compensation and contributions or benefits of the family member and
5 percent owner or top-ten highly compensated employee.  For purposes of this section, family member
includes the spouse, lineal ascendants and descendants of the employee or
former employee and the spouses of such lineal ascendants and descendants.


 


An Employee is in the top-paid group of
employees for any year if the Employee is in the group consisting of the top
twenty (20%) percent of the employees when ranked on the basis of compensation
paid during such year.


 


For purposes of determining whether an
Employee is a Highly Compensated Employee, Sections 414(b), (c), (m), (n) and
(o) of the Code shall be applied.


 


The determination of who is a highly
compensated employee, including the determination of the number and identity of
employees in the top-paid group, the top 100 employees, the number of employees
treated as officers and the compensation that is considered, will be made in
accordance with Section 414(q) of the Code and the regulations thereunder.


 


1.2.32                                                                  “HOUR
OF SERVICE”:  An hour for which (a) the
Employee is paid, or entitled to payment by the Employer for the performance of
duties, (b) the Employee is paid or entitled to payment by the Employer during
which no duties are performed (irrespective of whether the employment
relationship has terminated) due to vacation, holiday, illness, incapacity
(including disability), layoff, jury duty, military duty or leave of absence,
or (c) back pay, irrespective of mitigation of damages, has been either awarded
or agreed to by the Employer.


 


9
















 


Hours of Service shall be credited to the
Employee under (a), above, for the period in which the duties are performed,
under (b), above, in the period in which the period during which no duties are
performed occurs, beginning with the first Hour of Service to which the payment
relates, and under (c), above, for the period to which the award or agreement
pertains rather than the period in which the award, agreement or payment is
made; provided, however, that Hours of Service shall not be credited under both
(a) and (b), above, as the case may be, and under (c) above.  Notwithstanding the preceding sentences, (i)
no more than five hundred one (501) Hours of Service shall be credited under
(b), above, on account of any single continuous period during which the
Employee performs no duties-whether or not such period occurs in a single
computation period, (ii) no Hours of Service shall be credited to the Employee
by reason of a payment made or due under a plan maintained solely for the
purpose of complying with applicable worker’s compensation, or unemployment
compensation or disability insurance laws, and (iii) no Hours of Service shall
be credited by reason of a payment which solely reimburses an Employee for
medical or medically related expenses incurred by the Employee.  The determination of Hours of Service for
reasons other than the performance of duties and the crediting of Hours of
Service to computation periods shall be made in accord with the provisions of
Labor Regulation Sections 2530.200b-2(b) and (c) which are incorporated herein
by reference.


 


Solely for purposes of determining whether
an Employee has incurred a Break in Service, an Employee shall be credited with
number of Hours of Service which would otherwise have been credited to such
individual but for the absence or in any case in which such Hours cannot be
determined with eight (8) Hours of Service for any day that the Employee is
absent from work by reason of the Employee’s pregnancy, the birth of a child of
the Employee, the placement of a child with the Employee in connection with the
adoption of such child by the Employee or for purposes of caring for such child
for a period beginning immediately following such birth or placement.  Such Hours of Service shall be credited only
in the computation period in which the absence from work begins if the Employee
would be prevented from incurring a Break in Service in such computation period
solely because credit is given for such period of absence and, in any other
case, in the immediately following computation period.


 


10
















 


Notwithstanding the foregoing, no credit
shall be given for such service unless the Employee furnishes to the Plan
Administrator information to establish that the absence from work is for the
reasons indicated and the number of days for which there was such an absence.


 


Service with another business entity that
is, along with the Employer, a member of a controlled group of corporations, an
affiliated service group or trades or businesses under common control, as
defined in the applicable sections of the Code, or which is otherwise required
to be aggregated with the Employer pursuant to Section 414(o,) of the Code
and the regulations issued thereunder shall be treated as service for the
Employer.  Hours of Service shall be
credited for any individual considered an employee for purposes of this Plan
under Section 414(n) or Section 414(o) of the Code and the
regulations issued thereunder.


 


1.2.33                                                                  “INSURER”:
Any insurance company which has issued a Life Insurance Policy.


 


1.2.34                                                                  “JOINT
AND SURVIVOR ANNUITY”: An immediate annuity for the life of the Participant
with a survivor annuity for the life of the spouse which is not less than fifty
(50%) percent and not more than one hundred (100%) percent of the amount of the
annuity which is payable during the joint lives of the Participant and the
spouse and which is the amount of benefit which can be purchased with the
Participant’s vested Account balances.


 


11
















 


1.2.35                                                                  “LEASED
EMPLOYEE”: Any person (other than an employee of the recipient) who pursuant to
an agreement between the recipient and any other person has performed services
for the recipient (or for the recipient and related persons determined in
accordance with Section 414(n)(6) of the Code) on a substantially full
time basis for a period of at least one (1) year and such services are of a
type historically performed by employees in the business field of the recipient
employer; provided that any such person shall not be taken into account if (a)
such person is covered by a money purchase pension plan providing (i) a
nonintegrated employer contribution rate of at least ten (10%) percent of
compensation, as defined injection 415(c)(3) of the Code, but including amounts
contributed by the employer pursuant to a salary reduction agreement which are
excludable from the person’s gross income under Sections 125, 402(a)(8), 402(h)
or 403(b) of the Code; (ii) immediate participation; and (iii) full and
immediate vesting; and (b) leased employees do not constitute more than twenty
(20%) percent of the work force of the recipient who are not Highly Compensated
Employees.  Contributions or benefits
provided a leased employee by the leasing organization which are attributable
to services performed for the recipient employer shall be treated as provided
by the recipient employer.


 


1.2.36                                                                  “LIFE
INSURANCE POLICY”: A life insurance, annuity or endowment policy or contract
which is owned by the Trust and is on the life of a Participant.


 


1.2.37                                                                  “LIMITATION
YEAR”: The Plan Year; provided that all qualified plans maintained by the
Employer must use the same Limitation Year.


 


1.2.38                                                                  “MATCHING
ACCOUNT”: An Account established and maintained for a Participant for accounting
purposes to which his share of Matching Contributions are added.


 


1.2.39                                                                  “MATCHING
CONTRIBUTION”: A contribution to the Plan by the Employer which matches in
whole or in part an Elective Contribution on behalf of an electing Employee.


 


12
















 


1.2.40                                                                  “NON-ELECTIVE
CONTRIBUTION”: A contribution to the Plan or any other Related Plan by the
Employer which is neither a Qualified Non-Elective Contribution, a Matching
Contribution nor an Elective Contribution.


 


1.2.41                                                                  “NORMAL
Retirement AGE”: The date the Employee attains age 65 and completes 5 Years of
Service while a Participant, but in no event later than the date the Employee
attains age sixty-five (65) or the fifth (5th) anniversary of the first day of
the Plan Year in which a Participant commences participation, if later.


 


1.2.42                                                                  “NORMAL
RETIREMENT DATE”: The Anniversary Date nearest the date on which the
Participant attains his Normal Retirement Age.


 


1.2.43                                                                  “OWNER-EMPLOYEE”:
An individual who is a sole proprietor or who is a partner owning more than ten
percent (10%) of either the capital or profits interest of the partnership.


 


1.2.44                                                                  “PARTICIPANT”:
Any eligible Employee who becomes entitled to participate in the Plan.


 


1.2.45                                                                  “PLAN”:
The profit sharing plan for Employees as set forth in this Agreement, together
with any amendments or supplements thereto.


 


1.2.46                                                                  “PLAN
ADMINISTRATOR”: The person, persons or entity appointed by the Employer to
administer the Plan or, if the Employer fails to make such appointment, the
Employer.


 


1.2.47                                                                  “PLAN
YEAR” OR “YEAR”: The calendar year.


 


1.2.48                                                                  “PRERETIREMENT
SURVIVOR ANNUITY”: A survivor annuity for the life of the surviving spouse of
the Participant under which


 


(a)          the
payments to the surviving spouse are not less than the amounts which would be
payable under a Joint and Survivor Annuity (or the actuarial equivalent
thereof) if -


 


13
















 


(i)             in
the case of a Participant who dies after the date on which the Participant attained
the earliest retirement age under the Plan on which he could elect to receive
retirement benefits, such Participant had retired with an immediate Joint and
Survivor Annuity on the day before the Participant’s date of death; or


 


(ii)          in
the case of a Participant who dies on or before such date, such Participant had
separated from service on the date of death (except that a Participant who had
actually separated from service prior to death shall be treated as separating
on the actual date of separation), survived to the earliest retirement age,
retired with an immediate Joint and Survivor Annuity at the earliest retirement
age and died on the day after the day on which such Participant would have
attained the earliest retirement age, and


 


(b)         The
earliest period for which the surviving spouse may receive a payment under such
annuity is not later than the month in which the Participant would have
attained the earliest retirement age under the Plan; and


 


(c)          Any
security interest held by the Plan by reason of a loan outstanding to the
Participant for which a valid spousal consent has been obtained, if necessary,
shall be taken into account.


 


1.2.49                                                                  “QUALIFIED
NON-ELECTIVE CONTRIBUTION”:  A
contribution to the Plan by the Employer which is neither a Matching Contribution
nor an Elective Contribution, is one hundred percent (100%) vested and
nonforfeitable when made, which a Participant may not elect to have paid in
cash instead of being contributed to the Plan and which may not be distributed
from the Plan (except in the case of a hardship distribution) prior to the
termination of employment or death of the Participant, attainment of age 59-1/2
by the Participant or termination of the Plan without establishment of a
successor plan.


 


1.2.50                                                                  QUALIFIED
NON-ELECTIVE CONTRIBUTION ACCOUNT”: An Account ESTABLISHED AND MAINTAINED FOR A
PARTICIPANT TO ACCOUNT FOR THE OUALIFIED NON-ELECTIVE CONTRIBUTIONS MADE ON HIS
BEHALF.


 


14
















 


1.2.51                                                                  “QUALIFYING
EMPLOYER SECURITIES OR REAL PROPERTY”: Securities or real property of the
Employer which the Trustee may acquire and hold pursuant to the applicable
provisions of the Code and the Act.


 


1.2.52                                                                  “SEGREGATED
ACCOUNT”:  An Account established and
maintained for a Participant to account for his interest in a Segregated Fund.


 


1.2.53                                                                  “SEGREGATED
FUND”: Assets held in the name of the Trustee which have been segregated from
the Trust Fund in accordance with any of the provisions of the Plan.


 


1.2.54                                                                  “SELF-EMPLOYED
INDIVIDUAL”: An individual who has Earned Income for the taxable year from the
trade or business for which the Plan is established or who would have had
Earned Income but for the fact that the trade or business had no net profit for
the taxable year.


 


1.2.55                                                                  “SOCIAL
SECURITY INTEGRATION LEVEL”: Not applicable. 
This Plan does not provide for integration with Social Security.


 


1.2.56                                                                  “TRUST
FUND”: ALL money and property of every kind and character held by the Trustee
pursuant to the Plan, excluding assets held in Segregated Funds.


 


1.2.57                                                                  “TRUSTEE”:
The persons, corporations, associations or combination of them who shall at the
time be acting as such from time to time hereunder.


 


1.2.58                                                                  “VALUATION
DATE”: The last day of each consecutive three (3) month period beginning with
the first day of the Plan Year.


 


1.2.59                                                                  “VOLUNTARY
ACCOUNT”: An Account established and maintained for a Participant for
accounting purposes to which his voluntary Employee contributions have been
added.


 


1.2.60                                                                  “YEAR
OF SERVICE”: Each 12-consecutive month Plan Year during which the Employee
completes at least 1,000 Hours of Service, including years prior to the
Effective Date.


 


15
















 


PART II


 


ARTICLE I


 


PARTICIPATION


 


2.1.lA                                                                 ELIGIBILITY REQUIREMENTS - NON-ELECTIVE.  Each Employee shall be eligible to receive an
allocation of Non-Elective Contributions upon the later of the following dates,
provided that he is an Employee on such date:


 


(a)          the
last day of the Eligibility Computation Period during which he has completed 1,000
Hours of Service; or


 


(b)         the
date he completes a minimum of 12 months of service.


 


2.1.lB                                                                   ELIGIBILITY
REQUIREMENTS - ELECTIVE.  Each Employee
shall be eligible to have Elective Contributions made on his behalf upon the
later of the following dates, provided that he is an Employee on such date:


 


(a)          the
last day of the Eligibility Computation Period during which he has completed
1,000 Hours of Service; or


 


(b)         the
date he completes a minimum of 12 months of service.


 


2.1.lC                                                                   ELIGIBILITY
REQUIREMENTS - MATCHING.  Each Employee
shall be eligible to receive an allocation of Matching Contributions upon the
later of the following dates, provided that he is an Employee on such date:


 


(a)          the
last day of the Eligibility Computation Period during which he has completed
1,000 Hours of Service; or


 


(b)         the
date he completes a minimum of 12 months of service.


 


2.1.2                                                                        COMMENCEMENT
OF PARTICIPATION.  An eligible Employee
shall become a Participant in the Plan on the applicable Entry Date.


 


16
















 


2.1.3                                                                        PARTICIPATION
UPON RE-EMPLOYMENT.  A Participant whose
employment terminates and who is subsequently re-employed prior to incurring a
break in service, shall re-enter the Plan as a Participant immediately on the
date of his re-employment.  In the event
that an Employee completes the eligibility requirements set forth in
Section 2.1.1 above, his employment terminates prior to becoming a
Participant and he is subsequently re-employed prior to incurring a break in
service, such Employee shall be deemed to have met the eligibility requirements
as of the date of his re-employment and shall become a Participant on the date
of his re-employment; provided, however, that if he is re-employed prior to the
date he would have become a Participant if his employment had not terminated,
he shall become a Participant as of the date he would have become a Participant
if his employment had not terminated.


 


In the case of any Participant who has a
Break in Service, Years of Service before the Break in Service shall not be
taken into account until he has completed a Year of Service after his return to
employment.


 


In the case of a Participant who does not
have any vested and nonforfeitable right under the Plan to an accrued benefit
derived from Employer contributions, Years of Service before any period of
consecutive Breaks in Service shall not be taken into account in the event of
re-employment if the number of consecutive Breaks in Service within the period
equals or exceeds the greater of five (5) or the aggregate number of Years of
Service before such period.  Any Years of
Service which are not taken into account by reason of such period of Breaks in
Service shall not be taken into account in applying the foregoing to a
subsequent period of Breaks in Service.


 


Any other Employee whose employment
terminates and who is subsequently re-employed shall become a Participant in
accordance with the provisions of Sections 2.1.1 and 2.1.2.


 


2.1.4                                                                        TERMINATION
OF PARTICIPATION.  An Employee who has
become a Participant shall remain a Participant until the entire amount of his
Distributable Benefit is distributed to him or his Beneficiary in the event of
his death.


 


17
















 


2.1.5                                                                        DETERMINATION
OF ELIGIBILITY.  In the event any
question shall arise as to the eligibility of any person to become a
Participant or the commencement of participation, the Plan Administrator shall
determine such question from information provided by the Employer and the Plan
Administrator’s decision shall be conclusive and binding, except to the extent
of a claimant’s right to appeal the denial of a claim.


 


2.1.6                                                                        OMISSION
OF ELIGIBLE EMPLOYEE.  If an Employee who
should be included as a Participant in the Plan is erroneously omitted and
discovery of the omission is made after the contribution by the Employer is
made and allocated, the Employer shall make an additional contribution on
behalf of the omitted Employee in the amount which the Employer would have
contributed on his behalf had he not been omitted.


 


2.1.7                                                                        INCLUSION
OF INELIGIBLE PARTICIPANT.  If any person
is erroneously included as a Participant in the Plan and discovery of the
erroneous inclusion is made after the contribution by the Employer is made and
allocated, the Employer may elect to treat the amount contributed on behalf of
the ineligible person plus any earnings thereon as a forfeiture for the Plan
Year in which the discovery is made and apply such amount in the manner
specified in Section 2.4.6.


 


2.1.8                                                                        ELECTION
NOT TO PARTICIPATE.  Notwithstanding
anything contained in the Plan to the contrary, an Employee may elect with the
approval of the Employer not to participate in the Plan if the tax-exempt
status of the Plan is not jeopardized by the election.  The Employee shall sign such documents as may
be reasonably required by the Employer to evidence the election.  If it is subsequently determined that the
tax-exempt status of the Plan has been jeopardized, the Employer may elect to
treat such Employee as having been erroneously omitted.  An Employee may revoke the election only with
respect to any subsequent Plan Year by written notice of revocation to the
Employer prior to the end of the Plan Year for which the revocation is
effective.


 


18
















 


2.1.9                                                                        CHANGE
IN STATUS.  If any Participant continues
in the employ of the Employer or an affiliate for which service is required to
be taken into account but ceases to be an Employee by becoming a member of any
ineligible class for any reason (such as becoming covered by a collective
bargaining agreement unless the collective bargaining agreement otherwise
provides) the Participant shall continue to be a Participant until the entire
amount of his benefit is distributed but the individual shall not be entitled
to receive an allocation of contributions or forfeitures during the period that
the Participant is not an Employee for such reason.  Such Participant shall continue to receive
credit for Years of Service completed during the period for purposes of
determining his vested and nonforfeitable interest in his Accounts.  In the event that the individual subsequently
again becomes a member of an eligible class of employees, the individual shall
participate immediately upon the date of such change in status.  If such Participant incurs a Break in Service
and is subsequently reemployed, eligibility to participate shall be determined
in accordance with Section 2.1-3. In the event that an individual who is
not a member of an eligible class of employees becomes a member of an eligible
class, the individual shall participate immediately if such individual has
satisfied the eligibility requirements and would have otherwise previously
become a participant.


 


2.1.10                                                                  EXISTING
PARTICIPANTS.  An Employee who, on the Effective
Date, was a Participant under the provisions of the Plan as in effect
immediately prior to the Effective Date shall be a Participant on the Effective
Date and the provisions of Sections 2.1.1 and 2.1.2, pertaining to
participation, shall not be applicable to such Employee.  The rights of a Participant whose employment
terminated prior to the Effective Date shall be determined under the provisions
of the Plan as in effect at the time of such termination.


 


19
















 


ARTICLE II


 


CONTRIBUTIONS


 


2.2.1                                                                        EMPLOYER
CONTRIBUTIONS.


 


(a)          AMOUNT
OF NON-ELECTIVE CONTRIBUTION.  The
Employer shall contribute to the Trust Fund each Plan Year such amounts out of
profits as it may determine as a Non-Elective Contribution.


 


(b)         AMOUNT
OF MATCHING CONTRIBUTION.  The Employer
shall contribute to the Trust Fund each Plan Year with respect to the amount
of, Elective Contributions on behalf of each electing Employee a Matching
Contribution equal to 100 percent of the Elective Contributions made on behalf
of a Participant.


 


However, the Employer shall not make
Matching Contributions on behalf of a Participant for any Plan Year with
respect to Elective Contributions in excess of 3% of a Participant’s
Compensation.  The matching contribution
shall be equal to 3% of each Participant’s Compensation, provided the
Participant makes an Elective Contribution of at least 2% of Compensation.


 


(c)          AMOUNT
OF QUALIFIED NON-ELECTIVE CONTRIBUTION. 
The Employer shall contribute to the Trust Fund each Plan Year such
amount as a Qualified Non-Elective Contribution as the Employer may
determine.  In addition, in lieu of
distributing Excess Contributions or Excess Aggregate Contributions as provided
in Article VII, below, the Employer may make Qualified Non-Elective
Contributions on behalf of Employees who are not Highly Compensated Employees
me that are sufficient to satisfy either the ADP test or the ACP test, or both,
pursuant to regulations under the Code.


 


(d)         LIMITATION.  The contribution for any Plan Year by the
Employer shall not exceed the maximum amount deductible from the Employer’s
income for such Year for federal income tax purposes under the applicable
sections of the Code.


 


20
















 


(e)          TIME
OF CONTRIBUTION.  All contributions by
the Employer shall be delivered to the Trustee not later than the date fixed by
law for the filing of the Employer’s federal income tax return for the Year for
which such contribution is made (including any extensions of time granted by
the Internal Revenue Service for filing such return).


 


(f)            DETERMINATION
OF AMOUNT TO BE FINAL.  The determination
by the Employer as to the amount to be contributed by the Employer hereunder
shall be in all respects final, binding, and conclusive on all persons or
parties having or claiming any rights under this agreement or under the Plan
and Trust created hereby.  Under no
circumstances and in no event shall any Participant, Beneficiary, or other
person or party have any right to examine the books or records of the Employer.


 


(g)         RIGHTS
OF TRUSTEE AS TO CONTRIBUTIONS.  The
Trustee shall have no duty to report any contribution to be made or to
determine whether contributions delivered to the Trustee by the Employer comply
with the provisions of this Agreement. 
The Trustee shall be accountable only for funds actually received by the
Trustee.


 


2.2.2                                                                        ELECTIVE
CONTRIBUTIONS BY THE EMPLOYER ON BEHALF OF ELECTING EMPLOYEES.


 


(a)          AMOUNT
OF CONTRIBUTION.  Each Employee may elect
to have the Employer contribute to the Trust on his behalf for any Plan Year
during which he is a Participant such amounts expressed either in dollars or in
whole percentages of his Compensation as he may elect which would otherwise be
payable by the Employer as Compensation (but not to exceed the dollar
limitation provided by Section 402(g) of the Code as in effect at the
beginning of the taxable year); provided that the Employer may impose
reasonable limitations in a uniform, nondiscriminatory manner on the amounts
which may be so contributed in order to satisfy applicable legal requirements
and to assure the deductibility of amounts contributed by the Employer to the
Plan and any other qualified plan of deferred compensation.


 


21
















 


(b)         ELECTION.  The Plan Administrator shall determine the
manner in which a Participant may elect to have Elective Contributions made to
the Plan on his behalf.  The Plan
Administrator shall establish reasonable periods during which the election may
be made, modified or revoked.  Unless the
Plan Administrator establishes another period during which the election may be
made, modified or revoked, any such election may be made, modified or revoked
during the first and last months of the Plan Year.  An election by an Employee may not be made
retroactively and once made shall remain in effect until modified or
terminated.


 


(c)          PAYMENT
OF CONTRIBUTION.  Elective Contributions
shall be remitted by the Employer within two and one-half months after such
amount would have otherwise been payable to the Participant.  The Employer shall designate, in accordance
with the Participant’s election, the Plan Year to which any such contributions
which are made after the end of the Plan Year pertain.


 


(d)         SEGREGATED
FUND.  Unless an Elective Contribution on
behalf of a Participant is received by the Trustee within the time prescribed
by the Plan Administrator prior to a Valuation Date, the Plan Administrator
shall direct the Trustee to establish a Segregated Fund with respect to such
contribution.  The funds contained in
such Segregated Fund shall be transferred to the Trust Fund in accordance with
the instructions of the Plan Administrator and such transfer shall be deemed to
have been made as of such next succeeding Valuation Date.  If an Elective Contribution on behalf of a
Participant is received by the Trustee within the period prescribed by the Plan
Administrator, such contribution shall be added to the Trust Fund.  Notwithstanding the foregoing, if the Trust
Fund is invested in such a manner that the Plan Administrator can determine,
with a reasonable degree of certainty, that portion of the adjustment to fair
market value which is attributable to Elective Contributions received by the
Trustee other than within such period, then the Plan Administrator shall direct
the Trustee to add any such Elective Contributions to the Trust Fund at the
time the Trustee receives such Elective Contributions.


 


22
















 


(e)          HARDSHIP
DISTRIBUTIONS.  An Employee may not have
Elective Contributions made on his or her behalf for the taxable year following
the taxable year of a hardship distribution in excess of the applicable limit
under Section 402(g) of the Code for such taxable year less the amount of the
Employee’s Elective Deferrals’ for the taxable year of the hardship
distribution.


 


2.2.3                                                                        EMPLOYEE
CONTRIBUTIONS.


 


(a)          AMOUNT
OF CONTRIBUTION.  An Employee is neither
required nor permitted to contribute to the Plan for any Plan Year beginning
after 1986.  The Plan Administrator shall
not accept deductible employee contributions attributable to any Plan Year.


 


2.2.4                                                                        RETURN
OF CONTRIBUTIONS.  Qualified
Non-Elective, Non-Elective and Matching Contributions shall be returned to the
Employer in the following instances:


 


(a)          If
a Qualified Non-Elective, Non-Elective or Matching Contribution is made by the
Employer by mistake of fact, then the contribution shall be returned within one
year after its payment upon the Employer’s written request.


 


(b)         If
a Qualified Non-Elective, Non-Elective or Matching Contribution is conditioned
on initial qualification of the Plan under the applicable sections of the Code,
and the Commissioner of Internal Revenue determines that the Plan does not
qualify, then the contribution made incident to the initial qualification by
the Employer shall be returned within one year after the date of denial of
initial qualification of the Plan; provided that the application for initial
qualification is made by the time prescribed by law for filing the Employer’s
tax return for the taxable year in which the Plan is adopted, or such later
date as the Secretary of the Treasury may prescribe.


 


23
















 


(c)          Each
Qualified Non-Elective, Non-Elective and Matching Contribution is conditioned
upon the deductibility of the contribution under the applicable sections of the
Code and to the extent of a disallowance of the deduction for part or all of
the contribution, the contribution shall be returned within one year after such
disallowance upon the Employer’s written request.


 


24
















 


ARTICLE III


 


ALLOCATIONS


 


2.3.1                                                                        NON-ELECTIVE
CONTRIBUTION.  As of each Anniversary
Date, the Non-Elective Contribution made by the Employer including any
forfeitures with respect to the preceding Plan year shall be allocated among
the Employer Accounts of Participants who have completed at least 1,000 Hours
of Service during the Plan Year, in the following manner:


 


(a)          Non-Elective
Contributions and forfeitures for the Plan Year shall be allocated to each
Participant’s Employer Account in the ratio that each Participant’s
Compensation for the Plan Year bears to all Participants’ Compensation for that
year.


 


(b)         Notwithstanding
anything contained in this Section to the contrary, if the employment of a
Participant is terminated during a Plan year by reason of retirement,
disability or death, as provided in Section 2.4.2, an allocation of
contributions and forfeitures shall be made to the Employer Account of such
Participant for the Plan Year during which his employment was so terminated,
regardless of whether he has completed 1,000 Hours of Service during said Plan
Year;


 


(c)          Notwithstanding
anything contained in this Section to the contrary, if the employment of a
Participant is terminated during a Plan Year by reason of resignation or
discharge as provided in Section 2.4.2(f), no allocation of contributions
or forfeitures shall be made to the Employer Account of such Participant for
the Plan Year during which his employment is terminated.


 


2.3.2                                                                        MINIMUM
ALLOCATION.  In the event the Plan
becomes a Top-Heavy Plan during any Plan Year, the provisions of
Section 2.6.1(a) shall apply.


 


25
















 


2.3.3                                                                        FAIL-SAFE
ALLOCATION.  Notwithstanding any
provision of the Plan to the contrary, for Plan Years beginning after
December 31, 1989, if the Plan would otherwise fail to satisfy the
requirements of Section 401(a)(26), 410(b)(1) or 410(b)(2)(A)(i) of the
Code and the regulations thereunder because Employer contributions have not
been allocated to a sufficient number or percentage of Participants for the
Plan Year, an additional contribution shall be made by the Employer and shall
be allocated to the Employer Accounts of affected Participants subject to the
following provisions:


 


(a)          The
Participants eligible to share in the allocation of the Employer’s contribution
shall be expanded to include the minimum number of Participants who are not
otherwise eligible to the extent necessary to satisfy the applicable test under
the relevant Section of the Code. 
The specific Participants who shall become eligible are those
Participants who are actively employed on the last day of the Plan Year who
have completed the greatest number of Hours of Service during the Plan Year.


 


(b)         If
the applicable test is still not satisfied, the Participants eligible to share
in the allocation shall be further expanded to include the minimum number of
Participants who are not employed on the last day of the Plan Year as are
necessary to satisfy the applicable test. 
The specific Participants who shall become eligible are those
Participants who have completed the greatest number of Hours of Service during
the Plan Year.


 


(c)          A
Participant’s accrued benefit shall not be reduced by any reallocation of
amounts that have previously been allocated. 
To the extent necessary, the Employer shall make an additional
contribution equal to the amount such affected Participants would have received
if they had originally shared in the allocations without regard to the
deductibility of the contribution.  Any
adjustment to the allocations pursuant to this paragraph shall be considered a
retroactive amendment adopted by the last day of the Plan Year.


 


26
















 


2.3.4                                                                        MATCHING
CONTRIBUTIONS.  As of the next Valuation
Date, the Matching Contribution made by the Employer with respect to the
preceding Plan Year, and forfeitures, shall be allocated in the following
manner:


 


(a)          The
Matching Contribution, including any forfeitures shall be allocated among the
Matching Accounts of Participants who have completed at least an Hour of
Service during the Plan Year and for whom Elective Contributions were made in
an amount equal to 100 percent of the Elective Contributions made on behalf of
each Participant.


 


(b)         Notwithstanding
anything contained in this Section to the contrary, if the employment of a
Participant is terminated during a Plan Year by reason of death, retirement,
disability, resignation or discharge as provided in Section 2.4.2(f), an
allocation of Matching Contributions or forfeitures shall be made to the
Employer Account of such Participant for the Plan Year during which his
employment is terminated.


 


2.3.5                                                                        ELECTIVE
CONTRIBUTIONS.  The Elective
Contributions by the Employer on behalf of an electing Employee shall be
allocated to the Elective Contribution Account of such electing Employee as of
the Anniversary Date of the Plan Year to which the Elective Contribution
pertains.


 


2.3.6                                                                        QUALIFIED
NON-ELECTIVE CONTRIBUTIONS.  The
Qualified Non- Elective Contributions made by the Employer with respect to the
preceding Plan Year shall be allocated to the Qualified Non-Elective
Contribution Account solely on behalf of Participants who are not Highly
Compensated Employees to the extent necessary to satisfy the ACP test or the
ADP test.  The Qualified Non- Elective
Contributions shall be allocated among affected Participant’s as needed to
satisfy the ADP/ACP test.


 


2.3.7                                                                        LIMITATION.  The allocation of Employer contributions must
satisfy the requirements of Section 416 of the Code.  Neither Elective Contributions nor Matching
Contributions may be taken into account for the purpose of satisfying the
minimum top-heavy contribution requirement imposed by Section 416.


 


27
















 


ARTICLE IV


 


BENEFITS


 


2.4.1                                                                        DISTRIBUTABLE
BENEFIT.  At such time that the
employment of a Participant terminates for any reason, he or his Beneficiary
shall be entitled to a benefit equal to the vested and nonforfeitable interest
in his Accounts as of the Distribution Determination Date.  The Accounts shall include the allocable
share of contributions and forfeitures, if any, which may be allocated to the
Accounts as of such Distribution Determination Date, and shall be determined
after making the adjustments for which provision is made in the Plan.


 


2.4.2                                                                        VESTING.  A Participant shall at all times be one
hundred percent (100%) vested and have a nonforfeitable interest in his Elective
Contribution Account, Qualified Non-Elective Contribution Account, Voluntary
Account and Segregated Account.  The
vested and nonforfeitable interest of the Participant in his Controlled Account
shall be determined by reference to the Account from which the funds were
originally transferred.  The vested and
nonforfeitable interest in a Participant’s Employer Account and Matching
Account shall be determined as herein after provided.


 


(a)          NORMAL
RETIREMENT.  If a Participant terminates
employment at his Normal Retirement Age, he shall be one hundred percent (100%)
vested and have a nonforfeitable interest in his Employer Account and Matching
Account.


 


(b)         DEFERRED
RETIREMENT.  If a Participant continues
in active employment following his Normal Retirement Age, he shall continue to
participate under the Plan.  From and
after his Normal Retirement Age, he shall be one hundred percent (100%) vested
and have a nonforfeitable interest in his Employer Account and Matching
Account.


 


(c)          DISABILITY.  If the employment of a Participant is
terminated prior to his Normal Retirement Age as a result of a medically
determinable physical or mental impairment which may be expected to result in
death or to last for a continuous period of not less than twelve (12) months and
which renders him incapable of performing his duties, he shall be one hundred
percent (100%) vested and have a nonforfeitable interest in his Employer
Account and


 


28
















 


Matching Account.  All determinations in connection with the
permanence and degree of such disability shall be made by the Plan
Administrator in a uniform, nondiscriminatory manner on the basis of medical
evidence.


 


(d)                                 DEATH.  In the event of the death of a Participant,
he shall be one hundred percent (100%) vested and have a nonforfeitable
interest in his Employer Account and Matching Account.


 


(e)                                  TERMINATION
OF PLAN.  In the event of termination of
the Plan (including termination resulting from a complete discontinuance of
contributions by the Employer), each Participant shall be one hundred percent
(100%) vested and have a nonforfeitable interest in his Employer Account and
Matching Account. In the event of a partial termination of the Plan, each
Participant with respect to whom such partial termination has occurred shall be
one hundred percent (100%) vested and have a nonforfeitable interest in his
Employer Account and Matching Account.


 


(f)                                    EARLY
RETIREMENT, RESIGNATION OR DISCHARGE.  If
the employment of a Participant terminates by reason of early retirement,
resignation or discharge prior to his Normal Retirement Age, he shall be vested
and have a nonforfeitable interest in a percentage of his Employer Account and
Matching Account determined, except as provided below, by taking into account
all of his Years of Service as of such termination date in accordance with the
following schedule:


 


	
  Years
  of Service

  	
   

  	
  Percent Vested

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Less
  than 1

  	
   

  	
  0

  	
  %

  
	
  1
  but less than 2

  	
   

  	
  0

  	
  %

  
	
  2
  but less than 3

  	
   

  	
  0

  	
  %

  
	
  3
  but less than 4

  	
   

  	
  30

  	
  %

  
	
  4
  but less than 5

  	
   

  	
  40

  	
  %

  
	
  5
  but less than 6

  	
   

  	
  60

  	
  %

  
	
  6
  but less than 7

  	
   

  	
  80

  	
  %

  
	
  7 or
  more

  	
   

  	
  100

  	
  %

  



 


29
















 


2.4.3                                                                        LEAVE
OF ABSENCE. A temporary cessation from active employment with the Employer
pursuant to an authorized leave of absence in accordance with the
nondiscriminatory policy of the Employer, whether occasioned by illness,
military service or any other reason shall not be treated as either a
termination of employment or a Break in Service provided that the Employee
returns to employment prior to the end of the authorized leave of absence.


 


2.4.4                                                                        RE-EMPLOYMENT.  In the event that the Participant is
re-employed during a Plan Year subsequent to the Plan Year encompassing the
Distribution Determination Date, he shall be given credit for Years of Service
preceding the Break in Service for the purpose of determining his vested and
nonforfeitable interest in his share of Employer contributions and forfeitures
allocated to his Employer Account after such re-employment.  Years of Service completed by the Participant
after such re-employment shall not increase his vested and nonforfeitable
interest in his Employer Account on the Distribution Determination Date as of
which his Distributable Benefit is determined preceding such re-employment unless
the Participant is re-employed before he incurs five (5) consecutive Breaks in
Service.


 


In the case of any Participant who has a
Break in Service, Years of Service before the Break in Service shall not be
taken into account until he has completed a Year of Service after his return to
employment.


 


In the case of a Participant who does not
have any vested and nonforfeitable right under the Plan to an accrued benefit
derived from Employer contributions, Years of Service before any period of
consecutive Breaks in Service shall not be taken into account in the event of
re-employment if the number of consecutive Breaks in Service within the period
equals or exceeds the greater of five (5) or the aggregate number of Years of
Service before such period.  Any Years of
Service which are not taken into account by reason of such period of Breaks in
Service shall not be taken into account in applying the foregoing to a
subsequent period of Breaks in Service.


 


30
















 


2.4.5                                                                        DISTRIBUTION
DETERMINATION DATE.  The Distribution
Determination Date shall be determined as hereinafter provided.


 


(a)          LESS
THAN 100% VESTED.  If the employment of a
Participant terminates and the Participant has less than a one hundred percent
(100%) vested and nonforfeitable interest in his Employer Account as of the
date of such termination, the Distribution Determination Date shall be the
Valuation Date coinciding with or following the date of termination, provided
that he is not re-employed on the last day of such Plan Year.


 


(b)         FULLY
VESTED.  For a Participant who is fully
vested but who terminates employment prior to death, total and permanent
disability or retirement at his retirement date, the Distribution Determination
Date shall be the Valuation Date coinciding with or following the date of
termination.


 


For a Participant who
terminates employment as a result of death, total and permanent disability or
retirement at his retirement date, the Distribution Determination Date shall be
the Valuation Date coinciding with or following the date of termination.


 


In the case of a Participant’s interest in
a Voluntary Account or a Segregated Account attributable to a rollover
contribution from another plan, the Distribution Determination Date is the
Valuation Date coinciding with or following the date of termination.


 


(c)          TERMINATION
OF PLAN.  In the event of termination of
the Plan (including termination resulting from a complete discontinuance of
contributions by the Employer), the Distribution Determination Date shall be
the date of such termination.  In the
event of a partial termination of the Plan, as to each Participant with respect
to whom such partial termination has occurred, the Distribution Determination
Date shall be the Anniversary Date coinciding with or immediately following the
date of such partial termination.


 


31
















 


(d)         OTHER.  Except as provided above, the Distribution
Determination Date shall be the Anniversary Date coinciding with or next following
the termination of employment of the Participant.


 


(e)          DISTRIBUTIONS
FOLLOWING DISTRIBUTION DETERMINATION DATE. 
Subject to the necessity, if any, of obtaining the consent of a
Participant and spouse, distribution of a Participant’s Distributable Benefit
shall commence within a reasonable period a-f ter the Distribution
Determination Date, unless otherwise elected by the Participant in accordance
with the provisions of the Plan or as required by the provisions of the Plan.


 


2.4.6                                                                        FORFEITURES.
If an Employee terminates service, and the value of the Employee’s vested
account balance derived from employer and employee contributions is not greater
than $3,500 and the Employee receives a distribution of the value of the entire
vested portion of such account balance, the nonvested portion shall be treated
as a forfeiture as of the last day of the Plan Year in which the Participant’s
entire nonforfeitable interest in such Account is distributed from the
Plan.  If the value of an Employee’s
vested account balance is zero, the Employee shall be deemed to have received a
distribution of such vested account balance. 
A participant’s vested account balance shall not include accumulated
deductible employee contributions within the meaning of
Section 72(o)(5)(B) of the Code for plan years beginning prior to
January 1, 1989.


 


If an Employee terminates service, and
elects, in accordance with the provisions of the Plan, to receive the value of
the employee’s vested account balance, the nonvested portion shall be treated
as a forfeiture.  If the Employee elects
to have distributed less than the entire vested portion of the account balance
derived from employer contributions, the part of the nonvested portion that
will be treated as a forfeiture is the total nonvested portion multiplied by a
fraction, the numerator of which is the amount of the distribution attributable
to employer contributions and the denominator of which is the total value of
the vested employer derived account balance.


 


32
















 


If an Employee receives a distribution and
the Employee resumes employment covered under the Plan, the Employee’s
employer-derived account balance shall be restored to the amount on the date of
distribution if the Employee repays to the plan the full amount of the
distribution attributable to Employer contributions before the earlier of five
(5) years after the first date on which the Participant is subsequently
re-employed by the Employer, or the date the Participant incurs five (5) consecutive
Breaks in Service following the date of the distribution, If an Employee is
deemed to receive a distribution pursuant to this section, and the Employee
resumes employment covered under the Plan before the date the Participant
incurs five (5) consecutive Breaks in Service, upon the reemployment of such
Employee, the employer-derived account balance of the Employee will be restored
to the amount on the date of such deemed distribution.


 


Any portion of a Participant’s Employer or
Matching Account with respect to which he is not vested shall be deemed a
forfeiture as of the last day of the Plan Year in which the Participant’s
entire nonforfeitable interest in such Account is distributed from the Plan. 


 


Forfeitures from the Employer Account shall
be allocated to the Employer Account of Participants who are entitled by reason
of re-employment to restoration of a prior forfeiture and any remaining
forfeitures shall be allocated in the same manner as a contribution by the
Employer.


 


Forfeitures from the Matching Account shall
be allocated to the Matching Account of Participants who are entitled by reason
of re-employment to restoration of a prior forfeiture and any remaining
forfeitures shall in the same manner as -a contribution by the Employer, except
that the administrative expenses of the Plan may first be deducted from the
forfeitures to be allocated in any Plan Year and the remaining forfeitures then
allocated to the respective Accounts from which they arose.


 


33
















 


Notwithstanding any provision herein to the
contrary, forfeitures resulting from contributions by an Employer shall not be
reallocated for the benefit of another adopting Employer.  If a Participant is entitled to a restoration
of a forfeiture which has not otherwise been provided for, the amount to be
restored shall be restored BY allocating forfeitures arising in the Plan Year
of restoration to the Participant’s Account to the extent thereof and an
additional contribution by the Employer allocated to the Participant’s Account
to the extent that allocable forfeitures are insufficient.


 


34
















 


ARTICLE V


 


DISTRIBUTIONS


 


2.5.1                        COMMENCEMENT
OF DISTRIBUTION.


 


(a)           IMMEDIATE
DISTRIBUTION.  If the employment of a
Participant is terminated for any reason other than resignation or discharge
prior to his Normal Retirement Date, distribution of his Distributable Benefit
shall begin in accordance with the Participant’s election at any time after the
earlier of the date determined under subsection (b) below or within a
reasonable period after the Distribution Determination Date as of which his
Distributable Benefit is determined; provided that, if he has not incurred a
Break in Service, he is not reemployed prior to the date of the commencement of
distributions.


 


(b)          DEFERRED DISTRIBUTION.  Unless the Participant elects either earlier
commencement in accordance with the provisions of the Plan or to further defer
distribution, if the employment of a Participant is terminated by reason of
resignation or discharge prior to either his Early Retirement Date or his
Normal Retirement Date, distribution of his Distributable Benefit shall be
deferred and commenced on the sixtieth (60th) day after the close of the later
of the following Plan Years:


 


(i)             The Plan Year during
which the Participant attains the earlier of age sixty-five (65) or the Normal
Retirement Age;


 


(ii)          The Plan
Year during which the tenth (10th) anniversary of the commencement of the
Participant’s participation in the Plan occurs; or


 


(iii)       The Plan
Year during which the Participant terminates service with the Employer.


 


If distribution is so deferred, unless
otherwise determined by the Plan Administrator, the Trustee at the Plan
Administrator’s direction shall transfer the Distributable Benefit to a
Segregated Fund from which distribution shall thereafter be made.


 


35
















 


Such transfer shall be made as of the
Distribution Determination Date. Notwithstanding the foregoing, the failure of
a Participant and spouse to consent to a distribution while a benefit is
immediately distributable, within the meaning of Section 2.5.2, shall be
deemed to be an election to defer commencement of payment of any benefit
sufficient to satisfy this section.


 


(c)                                  REQUIRED
DISTRIBUTION.  Notwithstanding anything
herein to the contrary, unless the Participant has made an appropriate
elections BY December 31, 1983 to defer distribution which hat not been
revoked or modified, the Participant’s benefit shall be distributed to the
Participant not later than April 1 of the calendar year following the
calendar year in which he attains age 70-1/2 (the required beginning date) or
shall be distributed, commencing not later than April 1 of such calendar
year in accordance with regulations prescribed by the Secretary of the Treasury
over a period not extending beyond the life expectancy of the Participant or
the life expectancy of the Participant and a beneficiary designated by the
Participant. The amount required to be distributed for each calendar year,
beginning with distributions for the first distribution calendar year, must at
least equal the quotient obtained by dividing the Participant’s benefit by the
applicable life expectancy.  Unless
otherwise elected by the Participant (or spouse, if distributions begin after
death and the spouse is the designated beneficiary), by the time distributions
are required to begin, the life expectancy of the Participant and the
Participant’s spouse shall be recalculated annually.  Other than for a life annuity, such election
shall be irrevocable as to the Participant or spouse and shall apply to all
subsequent years.  The life expectancy of
a non-spouse beneficiary may not be recalculated.  Life expectancy and joint and last survivor
expectancy shall be computed by use of the expected return multiples in Tables
V and VI of Section 1.72-9 of the Treasury Regulations.


 


36
















 


For calendar years beginning after
December 31, 1988, the amount to be distributed each year, beginning with
distributions for the first distribution calendar year shall not be less than
the quotient obtained by dividing the Participant’s benefit by the lesser of
(1) the applicable life expectancy or (2) if the Participant’s spouse is not
the designated beneficiary, the applicable divisor then determined from the
table set forth in Q&A-4 of Section 1.401(a)(9)-2 of the proposed
regulations.  Distributions after the
death of the Participant shall be distributed using the, applicable life
expectancy as the relevant divisor without regard to Proposed Regulations
Section 1.401(a)(9)-2. The minimum distribution for subsequent calendar
years, including the minimum distribution for the distribution calendar year in
which the Participant’s required beginning date occurs, must be made on or
before December 31 of that distribution calendar year.


 


(d)                                 DISTRIBUTION
AFTER DEATH.  Unless the Participant has
made an appropriate election by December 31, 1983 to extend the period of
distribution after his death and the election has not been revoked or modified,
the following provisions shall apply.  If
distribution of the Participant’s benefit has begun and the Participant dies
before his entire benefit has been distributed to him, the remaining portion of
such benefit shall be distributed at least as rapidly as under the method of
distribution being used as of the date of the Participant’s death.


 


If the Participant dies before the
distribution of his benefit has begun, the entire interest of the Participant
shall be distributed by December 31 of the calendar year containing the
fifth (5th) anniversary of the death of such Participant, provided that if any
portion of the Participants benefit is payable to or for the benefit of a
designated beneficiary and such portion is to be distributed in accordance with
regulations issued by the Secretary of the Treasury over the life of, or over a
period not extending beyond the life expectancy of such designated beneficiary,
such distributions shall begin not later than December 31 of the calendar
year immediately following the calendar year of the Participant’s death or such
later date as may be provided by regulations issued by the Secretary of the
Treasury.


 


37
















 


If the designated beneficiary is the
surviving spouse of the Participant the date on which the distributions are
required to begin shall not be earlier than the later of December 31 of
the calendar year immediately following the calendar year in which the
Participant died and December 31 of the calendar year in which the
Participant would have attained age 70-1/2. 
If the surviving spouse thereafter dies before the distributions to such
spouse begin and any benefit is payable to a contingent beneficiary, the date
on which distributions are required to begin shall be determined as if the
surviving spouse were the Participant.


 


If the Participant has not specified the
manner in which benefits are payable by the time of his or her death, the
Participant’s designated beneficiary must elect the method of distribution no
later than the earlier of (1) December 31 of the calendar year in which
distributions would be required to begin under this section, or (2)
December 31 of the calendar year which contains the fifth anniversary of
the date of death of the Participant.  If
the Participant has no designated beneficiary, or if the designated beneficiary
does not elect a method of distribution, distribution of the Participant’s
entire interest must be completed by December 31 of the calendar year
containing the fifth anniversary of the Participant’s death.


 


(e)                                  Payments to
Children.  In accordance with regulations
issued by the Secretary of the Treasury, any amount paid to a child shall be
treated as if it had been paid to the surviving spouse if such amount shall
become payable to the surviving spouse upon such child reaching majority (or
other designated event permitted under such regulations).


 


(f)                                    Incidental
Death Benefit Distributions.  Any distribution
required by the rules applicable to incidental death benefits shall be treated
as a distribution required by this Section. 
All distributions required under this Section shall be determined
and made in accordance with the proposed regulations under
Section 401(a)(9) of the Code, including the minimum distribution
incidental benefit requirement of Section 1.401(a)(9)-2 of the proposed
regulations.


 


38
















 


(g)                                 DISTRIBUTIONS.  For the purposes of this section,
distribution of a Participant’s interest is considered to begin on the
Participant’s required beginning date or the date distribution is required to
begin to the surviving spouse.  If
distribution in the form of an annuity irrevocably commences to the Participant
before the required beginning date, the date distribution is considered to
begin is the date distribution actually commences.


 


(h)                                 DEFINITIONS.


 


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


 


(2)                                  DESIGNATED
BENEFICIARY.  The individual who is
designated as the beneficiary under the Plan in accordance with
Section 401(a)(9) and the proposed regulations thereunder.


 


(3)                                  DISTRIBUTION
CALENDAR YEAR.  A calendar year for which
a minimum distribution is required.  For
distributions beginning before the Participant’s death, the first distribution
calendar year is the calendar year immediately preceding the calendar year
which contains the Participant’s required beginning date.  For distributions beginning after the
Participant’s death, the first distribution calendar year is the calendar year
in which distributions are required to begin.


 


39
















 


(4)                                  PARTICIPANT’S
BENEFIT.


 


(1)                                  The account
balance as of the last valuation date in the calendar year immediately
preceding the distribution calendar year (valuation calendar year) increased by
the amount of any contributions or forfeitures allocated to the account balance
as of dates in the valuation calendar year after the valuation date and
decreased by distributions made in the valuation calendar year after the
valuation date.


 


(ii)                                  Exception
for second distribution calendar year. 
For purposes of paragraph (i) above, if any portion of the minimum
distribution for the first distribution calendar year is made in the second
distribution calendar year on or before the required beginning date, the amount
of the minimum distribution made in the second distribution calendar year shall
be treated as if it had been made in the immediately preceding distribution
calendar year.


 


(5)                                  REQUIRED
BEGINNING DATE.


 


(i)                                     GENERAL
RULE.  The required beginning date of a
Participant is the first day of April of the calendar year following the
calendar year in which the Participant attains age 70 1/2


 


(ii)                                  TRANSITIONAL
RULES.  The required beginning date of a
Participant who attains age 70 1/2 before January 1, 1988, shall be
determined in accordance with (I) or (II) below:


 


(I)                                    NON-5-PERCENT
OWNERS.  The required beginning date of a
Participant who is not a 5-percent owner is the first day of April of the
calendar year following the calendar year in which the later of retirement or
attainment of age 70 1/2 occurs.


 


40
















 


(II)                                5-PERCENT
OWNERS.  The required beginning date of a
Participant who is a 5-percent owner during any year beginning after
December 31, 1979, is the first day of April following the later of:


 


(A)                              the
calendar year in which the Participant attains age 70 1/2 or


 


(B)                                the earlier
of the calendar year with or within which ends the Plan Year in which the
Participant becomes a 5- percent owner, or the calendar year in which the
Participant retires.


 


The required beginning date of a Participant
who is not a 5-percent owner who attains age 70 1/2 during 1988 and who has not
retired as of January 1, 1989, is April 1, 1990.


 


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


 


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


 


(i)TRANSITIONAL RULE.


 


(1)                                  Notwithstanding
the other requirements of this Section and subject to the requirements of
Section 2.5.2, distribution on behalf of any employee, including a
5-percent owner, may be made in accordance with all of the following
requirements (regardless of when such distribution commences):


 


41
















 


(a)                                  The
distribution by the trust is one which would not have disqualified such trust
under Section 401 (a)(9) of the Internal Revenue Code as in effect prior
to amendment by the Deficit Reduction Act of 1984.


 


(b)                                 The
distribution is in accordance with a method of distribution designated by the
employee whose interest in the trust is being distributed or, if the employee
is deceased, by a beneficiary of such employee.


 


(c)                                  Such
designation was in writing, was signed by the employee or the beneficiary, and
was made before January 1, 1984.


 


2.5.2                        METHOD OF
DISTRIBUTION. Subject to the provisions of Section 2.5.1 above and any
security interest in a loan from the plan for which any necessary spousal
consent has been obtained (to the extent such security interest is used as
repayment of the loan), distribution shall be made by one of the following
methods, as determined in accordance with the election of the Participant (or
in the case of death, his Beneficiary) with such spousal consents as may be
required by law in any of the following methods:


 


42
















 


(a)                                  In a single
distribution; provided that if the Employer has applied a consistent policy
since the first Plan Year beginning after 1988, the Employer may require a
Participant who is a Highly Compensated Employee or who is otherwise entitled
to receive a lump sum distribution in excess of $25,000.00 to execute a covenant
not to compete with the Employer which shall provide that the Participant
agrees that he shall not solicit the business of any person or entity doing
business with the Employer at any time within the twelve month period prior to
the date of termination of his employment and, in addition, shall not engage in
any business, whether as a sole proprietor, partner, joint venturer,
shareholder, employee, independent contractor, agent or otherwise, which is in
competition with the business of the Employer for a period not exceeding two
(2) years form the date of such distribution within fifty (50) miles of the
principal offices of the Employer or containing such alternative provisions as
determined by the Employer.


 


(b)                                 Any
alternative method of equivalent value contained in the Plan at any time on or
after the first day of the first Plan Year beginning after 1988 to which the
Participant consents.


 


(c)                                  INCIDENTAL
DEATH BENEFITS. For calendar years beginning before January 1,1989, if the
Participant’s spouse is not the designated Beneficiary, the method of
distribution selected must assure that at least fifty (50%) percent of the
present value of the amount available for distribution is paid within the life
expectancy of the Participant.


 


(d)                                 CONSENTS.
If the value of a Participant’s vested account balance derived from Employer
and Employee contributions does not exceed (and at the time of any prior
distribution did not exceed) $3,500, the consent of the Participants and his or
her spouse shall not be required; provided that if such value exceeds $3,500,
the Participant and spouse (or where either has died, the survivor) must
consent to any distribution of such account balance.


 


43
















 


The consent shall be obtained in writing
within the 90 day period ending on the annuity starting date.  Neither the consent of the Participant nor
the Participant’s spouse shall be required to the extent that a distribution is
required to satisfy Section 401(a)(9) or Section 415 of the Code.  In addition, upon termination of the Plan if
the Plan does not offer an annuity option (purchased from a commercial
provider), the Participant’s account balance in the Plan may, without the
Participant’s consent, be distributed to the Participant or transferred to
another defined contribution plan (other than an employee stock ownership plan
as defined in Section 4975(e)(7) of the Code) within the same controlled
group.


 


(e)                                  ZERO
BENEFITS.  If the value of the
Participant’s vested and nonforfeitable interest in the Plan at the time of his
termination of employment is zero, the Participant shall be deemed to have
received a distribution of such interest. 


 


(f)                                    RESTRICTIONS
ON IMMEDIATE DISTRIBUTIONS.  The Plan
Administrator shall notify the Participant and the Participant’s spouse of the
right to defer any distribution until the Participant’s account balance in the
Plan is no longer immediately distributable. 
Such notification shall include a general description of the material
features and an explanation of the relative values of the optional forms of
benefit available under the Plan in a manner that would satisfy the notice
requirements of Section 417(a)(3) of the Code and shall be provided no
less than 30 days and no more than 90 days prior to the annuity starting
date.  Notwithstanding the foregoing,
only the Participant need consent to the commencement of a distribution in the
form of a qualified joint and survivor annuity while the Participant’s account
balance in the Plan is immediately distributable.  Furthermore,, if payment in the form of a
qualified joint and survivor annuity is not required with respect to the
Participant pursuant to the Plan, only the Participant need consent to the
distribution of an account balance that is immediately distributable.


 


44
















 


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


 


(g)                                 TRANSITIONAL
RULES.


 


(1)                                  Any living
Participant not receiving benefits on August 23,  1984, who would otherwise not receive the
benefits prescribed by the@, previous sections of the article must be
given the opportunity to elect to have the prior sections of this
article apply if such Participant is credited with at least one hour of
service under this Plan or a predecessor plan in a Plan Year beginning on or
after January 1, 1976, and such Participant has at least 10 years of
vesting service when he or she separated from service.


 


(2)                                  Any living
Participant not receiving benefits on August 23,  1984, who was credited with at least one hour
of service under this Plan or a predecessor plan on or after September 2,
1974, and who is not otherwise credited with any service in a Plan Year
beginning on or after January 1, 1976, must be given the opportunity to
have his or her benefits paid in accordance with Section (4) below.


 


(3)                                  The
respective opportunities to elect (as described above) must be afforded to the
appropriate Participants during the period commencing on August 23, 1984,
and ending on the date benefits would otherwise commence to said Participants.


 


(4)                                  Any
Participant who has elected pursuant to Section (2) above and any
Participant who does not elect under Section (1) or who meets the
requirements of Section (1) except that such Participant does not have at
least 10 years of vesting service when he or she separates from service, shall
have his or her benefits distributed in accordance with all of the following
requirements if benefits would have been payable in the form of a life annuity:


 


45
















 


(i)                                     AUTOMATIC
JOINT AND SURVIVOR ANNUITY.  If benefits
in the form a life annuity become payable to a married Participant who:


 


(1)                                  begins to
receive payments under the Plan on or after normal retirement age; or


 


(2)                                  dies on or
after normal retirement age while still working for the Employer; or


 


(3)                                  begins to
receive payments on or after the qualified early retirement age; or


 


(4)                                  separates
from service on or after attaining normal retirement age (or the qualified
early retirement age) and after satisfying the eligibility requirements for the
payment of benefits under the plan and thereafter dies before beginning to
receive such benefits;


 


then such benefits will be received under
this Plan in the form of a qualified joint and survivor annuity, unless the
Participant has elected otherwise during the election period.  The election period must begin at least 6
months before the Participant attains qualified early retirement age and end
not more than 90 days before the commencement of benefits.  Any election hereunder will be in writing and
may be changed by the Participant at any time.


 


(ii)                                  ELECTION OF
EARLY SURVIVOR ANNUITY.  A Participant
who is employed after attaining the qualified early retirement age will be
given the opportunity to elect, during the election period, to have a survivor
annuity payable on death.  If the
Participant elects the survivor annuity, payments under such annuity must not
be less than the payments which would have been made to the spouse under the qualified
joint and survivor annuity if the Participant had retired on the day before his
or her death.


 


46
















 


Any election under this provision will be
in writing and may be changed by the Participant at any time.  The election period begins on the later of
(1) the 90th day before the Participant attains the qualified early retirement
age, or (2) the date on which participation begins, and ends on the date the
Participant terminates employment.


 


(iii)                               FOR
PURPOSES OF THIS SECTION (4):


 


(1)                                  Qualified early
retirement age is the later of:


 


(i)                                     the
earliest date, under the Plan, on which the Participant may elect to receive
retirement benefits,


 


(ii)                                  the first
day of the 120th month beginning before the Participant reaches normal
retirement age, or


 


(iii)                               the date
the Participant begins participation.


 


(2)                                  Qualified
joint and survivor annuity is an annuity for the life of the Participant with a
survivor annuity for the life of the spouse as otherwise described in the Plan.


 


2.5.3                                                                        NATURE
OF DISTRIBUTIONS.  The nature of the
distribution of a Participant’s Distributable Benefit shall be as hereinafter
provided.


 


(a)                                  TRUST
FUND AND SEGREGATED FUNDS.  Subject to
the Joint and Survivor Annuity requirements, except as provided in
subsection (b) with regard to Life Insurance Policies, distribution of a
Participant’s Distributable Benefit shall consist of cash or property, or an
annuity contract as provided in Section 5.2 above.


 


(b)                                 INSURANCE
POLICIES.  In the event that the Trustee
has purchased Life Insurance Policies on the life of the Participant, the
values and benefits available with respect to each such Policy shall be
distributed as follows:


 


47
















 


(i)                                     If the
Participant’s employment terminates for any reason other than death, then the
Trustee shall either surrender the Life Insurance Policy for its available cash
value and distribute the proceeds as provided in subsection (a) above or,
at the election of the Participant, distribute the Life Insurance Policy to the
Participant, provided the Participant has a vested and nonforfeitable interest
in his Accounts in an amount at least equal to the cash value thereof.


 


(II)                                If the
Participant’s employment terminates by reason of death, the beneficiary
designated by the Participant in accordance with the terms of the Plan shall be
entitled to receive from the Trustee the full amount of the proceeds thereof.


 


The Trustee shall apply for and be the
owner of any Policies purchased under the terms of the Plan.  The Policies must provide that the proceeds
are payable to the Trustee subject to the Trustee’s obligation to pay over the
proceeds to the designated Beneficiary. 
Under no circumstances shall the trust retain any part of the proceeds.  In the event of any conflict between the
terms of the Plan and the terms of any Policies purchased hereunder, the Plan
provisions shall control.


 


2.5.4                                                                        ADVANCE
DISTRIBUTIONS.  After a Participant’s
employment has terminated and before he is otherwise entitled to distribution
of his Distributable Benefit but in no event earlier than the Valuation Date
coincident with or following the date of termination the Trustee upon the
request of the Participant or Beneficiary shall make advance distributions to
him or to his Beneficiary.  The aggregate
of such an advance distribution shall not exceed the sum of the vested and
nonforfeitable interest in the Participant’s Accounts.


 


48
















 


An Employee who terminates service and
elects to receive the value of the Employee’s vested account balance shall
forfeit the nonvested portion.  If the
Employee elects to have distributed less than the entire vested portion of the
account balance derived from Employer contributions, the part of the nonvested
portion that is treated as a forfeiture is the total nonvested portion
multiplied BY a fraction, the numerator of which is the amount of the
distribution attributable to Employer contributions and the denominator of
which is the total value of the vested Employer derived account balance.


 


Except as otherwise provided in the
preceding paragraph, if a Participant receives a distribution which reduces the
balance in his Employer Account when he has less than a one hundred percent
(100%) vested and nonforfeitable interest in the Account, the amount, if any,
of the Participant’s vested and nonforfeitable interest in the undistributed
balance of said Account on his Accrual Date shall be transferred to a
Segregated Account and shall not be less than an amount (“XI”) determined by
the formula: X = P (AB + (R x D)) - (R x D). For purposes of applying the
formula: P is the vested percentage at the relevant time; AB is the account
balance at the relevant time; and D is the amount of the distribution; and R is
the ratio of the Account balance at the relevant time to the Account balance
after distribution.


 


A Participant who terminates employment and
receives a distribution of an amount deducted from his Account when he has less
than a one hundred percent (100%) vested and nonforfeitable interest in the
Account and who subsequently again becomes an Employee may repay the full
amount of such distribution before he incurs five (5) consecutive Breaks in
Service following the date of the distribution but in no event later than the
fifth (5th) anniversary of the date of his reemployment; provided, however,
that in the event of repayment neither the Trust nor the Employer shall be
liable for any federal or state income tax resulting from the distribution and
the Participant shall indemnify and hold harmless the Trust and the Employer
for and from any such liability.  In the
event of such repayment, the Employer Account of the Participant shall be
credited with the full amount of such repayment and the previously
undistributed balance.


 


49
















 


In the event the Participant fails to repay
the full amount of such distribution within the time permitted for repayment,
the non-vested and forfeitable portion of the previously undistributed balance
of his Employer Account which had been transferred to a Segregated Account
shall be deemed a forfeiture as of the last day of such period.  If a Participant is deemed to receive a
distribution because his vested and nonforfeitable interest at the time of his
termination of employment is zero and the Participant resumes employment
covered under the Plan before the date the Participant incurs five (5)
consecutive Breaks in Service, upon the reemployment of such Participant, the
employer-derived account balance of the Participant shall be restored to the
amount on the date of the deemed distribution.


 


2.5.5                                                                        IN
SERVICE DISTRIBUTIONS.  In Service
Distributions are not permitted.


 


2.5.6                                                                        HARDSHIP
DISTRIBUTIONS.  A Participant may request
a distribution from the Plan as a result of immediate and heavy financial needs
of the Participant to the extent that the distribution is necessary to satisfy
such financial needs.  Hardship
distributions are subject to the spousal consent requirements contained in
Sections 401(a)(11) and 417 of the Code. 
The determination of whether a Participant has an immediate and heavy
financial need shall be made by the Plan Administrator on the basis of all
relevant facts and circumstances.  A
distribution shall be deemed to be made on account of an immediate and heavy
financial need if the distribution is on account of:


 


(a)          Deductible
medical expenses described in Section 213(d) of the Code incurred or
necessary for medical care of the Participant, his spouse or dependents;


 


(b)         Purchase
(excluding mortgage payments) of a principal residence for the Participant;


 


(c)          Payment
of tuition and related educational fees for the next 12 months of
post-secondary education for the Participant, his spouse, children or
dependents; or


 


(d)         The
need to prevent the eviction of the Participant from his principal residence or
foreclosure on the mortgage of the Participant’s principal residence.


 


50
















 


A distribution shall be considered as
necessary to satisfy an immediate and heavy financial need of the Participant
only if:


 


(a)          The
Participant has obtained all distributions, other than hardship distributions,
and all nontaxable loans under all plans maintained by the Employer;


 


(b)         All
plans maintained by the Employer provide that the Participant’s elective
Deferrals and employee contributions shall be suspended for twelve (12) months
after the receipt of the hardship distribution;


 


(c)          The
distribution is not in excess of the amount of an immediate and heavy financial
need (including amounts necessary to pay any federal, state, or local income
taxes or penalties reasonably anticipated to result from the distribution); and


 


(d)         All
plans maintained by the Employer provide that the Participant may not make
Elective Deferrals for the Participant’s taxable year immediately following the
taxable year of the hardship distribution in excess of the applicable limit
under Section 402(g) of the Code for such taxable year less the amount of
such Participant’s Elective Deferrals for the taxable year of the hardship
distribution.


 


In the event of such distribution, when a
Participant is less than one hundred percent (100%) vested in his Employer
Account or Matching Account, the vested interest in the Employer Account or
Matching Account shall thereafter be determined in accordance with
Section 2.5.4 of the Plan.


 


Distributions may be taken from only the
Participant’s Account balances attributable to the following:


 


• Elective
Contribution Account


 


51
















 


ARTICLE VI


 


CONTINGENT
TOP HEAVY PROVISIONS


 


2.6.1                                                                        TOP
HEAVY REQUIREMENTS. If the Plan becomes a Top Heavy Plan during any Plan YEAR,
the following provisions shall supersede any conflicting provisions in the Plan
or Trust and apply for such Plan Year:


 


(a)          Except
as otherwise provided below, the Employer contributions and forfeitures
allocated on behalf of any Participant who is not a Key Employee shall not be
less than the lesser of 3 percent of such Participant’s Compensation or in the
case where the Employer has no defined benefit plan which designates this plan
to satisfy Section 401 of the Code, the largest percentage of Employer
contributions and forfeitures, as a percentage of the first $200,000 of the Key
Employee’s compensation, allocated on behalf of any Key Employee for that
year.  The minimum allocation is
determined without regard to any Social Security contribution.  This minimum allocation shall be made even
though, under other plan provisions, the Participant would not otherwise be entitled
to receive an allocation, or would have received a lesser allocation for the
year because of (i) the Participant’s failure to complete 1,000 Hours of
Service (or any equivalent provided in the plan), or (ii) the Participant’s
failure to make mandatory employee contributions to the plan, or (iii)
compensation less than a stated amount. 
Neither Elective Deferrals nor Matching Contributions may be taken into
account for the purpose of satisfying the minimum allocations.


 


For purposes of computing the minimum
allocation, Compensation shall mean a Participant’s W-2 compensation.


 


The minimum allocation provided above shall
not apply to any Participant who was not employed by the Employer on the last
day of the Plan Year.


 


The minimum allocation provided above shall
not apply to any Participant to the extent the Participant is covered under any
other plan or plans of the Employer and the Employer has provided that the
minimum allocation or benefit requirement applicable to top-heavy plans will be


 


52
















 


met in the other plan or plans.


 


(b)         References
in Section 3.2.1(d), pertaining to combined plan limitations, to 111.25”
shall be applied by substituting 111.01, for “1.2511 therein.  Reference in Section 3.2.1(e),
pertaining to a special transition rule, to $51,875” shall be applied BY
substituting “$41,500” for “$51,8751, therein.


 


(c)          The
vested and nonforfeitable interest of each Participant shall be-equal to the
percentage determined under the following schedule if greater than the
percentage determined under Section 2.4.2:


 


	
  Years
  of Service

  	
   

  	
  Percent Vested

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Less
  than 1

  	
   

  	
  0

  	
  %

  
	
  1
  but less than 2

  	
   

  	
  2

  	
  %

  
	
  2
  but less than 3

  	
   

  	
  20

  	
  %

  
	
  3
  but less than 4

  	
   

  	
  40

  	
  %

  
	
  4
  but less than 5

  	
   

  	
  60

  	
  %

  
	
  5
  but less than 6

  	
   

  	
  80

  	
  %

  
	
  6 or
  more

  	
   

  	
  100

  	
  %

  



 


The top-heavy minimum vesting
schedule applies to all benefits within the meaning of
Section 411(a)(7) of the Code, except those attributable to employee
contributions, including benefits accrued before the effective date of
Section 416 of the Code and benefits accrued before the Plan becomes
top-heavy.


 


If the Plan ceases to be a Top Heavy Plan,
the vesting which occurs while the Plan is a Top Heavy Plan shall not be
cutback.  Any minimum allocation required
(to the extent required to be nonforfeitable under Section 416(b)) may not
be forfeited under Section 411(a)(3)(B) or (D) of the Code.


 


53
















 


2.6.2                                                                        TOP
HEAVY DEFINITIONS.  The following terms,
as used in this Plan, shall have the following meaning:


 


(a)                                  “KEY
EMPLOYEE”: An Employee or former employee who, at any time during the
Determination Period is either:


 


(i)                                     an officer
of the Employer having an Annual Compensation greater than fifty (50%) percent
of the amount in effect; under Section 415 (b) (1) (A) of the Code;


 


(ii)                                  an owner
(or a person considered an owner under Section 318 of the Code) of one of
the ten largest interests in the Employer if such individuals Annual
Compensation from the Employer is more than the limitation in effect under
Section 415(c)(1)(A) of the Code;


 


(iii)                               any person
who owns directly or indirectly more than five (5%) percent of the outstanding
stock of the Employer or stock possessing more than five (5%) percent of the
total combined voting power of all stock of the Employer or, in the case of an
unincorporated Employer, the capital or profits interest in the Employer;


 


(iv)                              any person
who owns directly or indirectly more than one (1%) percent of the outstanding
stock of the Employer or stock possessing more than one (1%) percent of the
total combined voting power of all stock of the Employer or, in the case of an
unincorporated Employer, the capital or profits interest in the Employer and
having an Annual Compensation from the Employer of more than $150,000; or


 


(v)                                 any
beneficiary of a Key Employee.


 


The determination of who is a Key Employee
shall be made in accordance with Section 416(i)(1) of the Code and the
regulations thereunder.


 


54
















 


(b)                                 “AGGREGATION
GROUP”: Each qualified retirement plan of the Employer in which a Key Employee
is a participant and each other qualified retirement plan of the Employer which
enables any plan in which a Key Employee is a participant to meet the
requirements of Section 401(a)(4) or Section 410 of the Code. 


 


(c)                                  “ANNUAL
COMPENSATION”: Compensation as defined in Section 415(c)(3) of the Code,
but including amounts contributed by the Employer pursuant to a salary
reduction agreement which are excludible from the Employee’s gross income under
Section 125, Section 402(a)(8), Section 402(h) or
Section 403(b) of the Code.


 


(d)                                 “TOP-HEAVY
PLAN”: For any Plan Year beginning after December 31, 1983, the plan is
top-heavy if any of the following conditions exists:


 


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


 


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


 


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


 


55
















 


(e)”TOP-HEAVY RATIO”:


 


(i)                                     If the
Employer maintains one or more defined contribution plans (including any
simplified employee pension plan) and the Employer has not maintained any
defined benefit plan which during the 
5-year period ending on the Determination Date(s) has or has had accrued
benefits, the top-heavy ratio for this plan alone or for the required or
permissive aggregation group as appropriate is a fraction, the numerator of
which is the sum of the account balances of all Key Employees as of the
Determination Date(s) (including any part of any account balance distributed in
the 5-year period ending on the Determination Date(s)), and the denominator of
which is the sum of all account balances (including any part of any account
balance distributed in the 5-year period ending on the Determination Date(s)),
both computed in accordance with Section 416 of the Code and the
regulations thereunder.  Both the numerator
and denominator of the top-heavy ratio are increased to reflect any
contribution not actually made as of the Determination Date, but which is
required to be taken into account on that date under Section 416 of the
Code and the regulations thereunder.


 


56
















 


(ii)                                  If the
Employer maintains one or more defined contribution plans (including any
simplified employee pension plan) and the Employer maintains or has maintained
one or more defined benefit plans which during the 5-year period ending on the Determination
Date(s) has or has had accrued benefits, the top-heavy ratio for any required
or permissive aggregation group as appropriate is a fraction, the numerator of
which is the sum of account balances under the aggregated defined contribution
plan or plans for all Key Employees, determined in accordance with (i) above,
and the present value of accrued benefits under the aggregated defined benefit
plan or plans for all Key Employees as of the Determination Date(s), and the
denominator of which is the sum of the account balances under the aggregated
defined contribution plan or plans for all Participants, determined in
accordance with (i) above, and the present value of accrued benefits under the
defined benefit plan or plans for all Participants as of the Determination
Date(s), all determined in accordance with Section 416 of the Code and the
regulations thereunder.  The accrued
benefits under a defined benefit plan in both the numerator and denominator of
the top-heavy ratio are increased for any distribution of an accrued benefit
made in the five-year period ending on the Determination Date.


 


(iii)                               For
purposes of (i) and (ii) above, the value of account balances and the present
value of accrued benefits will be determined as of the most recent valuation
date that falls within or ends with the 12 month period ending on the
Determination Date, except as provided in Section 416 of the Code and the
regulations thereunder for the first and second plan years of a defined benefit
plan.  The account balances and accrued
benefits of a Participant (1) who is not a Key Employee but was a Key Employee
in a prior year, or (2) who has not been credited with at least one hour of
service with any Employer maintaining the plan at any time during the 5-year
period ending on the Determination Date will be disregarded.


 


57
















 


The calculation of the top-heavy ratio, and
the extent to which distributions, rollovers, and transfers are taken into
account will be made in accordance with Section 416 of the Code and the
regulations thereunder.  Deductible
employee contributions will not be taken into account for purposes of computing
the top-heavy ratio.  When aggregating
plans, the value of account balances and accrued benefits will be calculated
with reference to the Determination Dates that fall within the same calendar
year.


 


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


 


(f)                                    “PERMISSIVE
AGGREGATION GROUP”: The required aggregation group of plans plus any other plan
or plans of the Employer which, when considered as a group with the required
aggregation group, would continue to satisfy the requirements of Sections
401(a)(4) and 410 of the Code.


 


(g)                                 “REQUIRED
AGGREGATION GROUP”:


 


(i)                                     Each
qualified plan of the Employer in which at least one Key Employee participates
or participated at any time during the Determination Period (regardless of
whether the plan has terminated).


 


(ii)                                  Any other qualified
plan of the Employer which enables a plan described in (i) to meet the
requirements of Sections 401(a)(4) or 410 of the Code.


 


(h)                                 “DETERMINATION
DATE”: For any plan year subsequent to the first plan year, the last day of the
preceding plan year.  For the first plan
year of the plan, the last day of that year.


 


58
















 


(i)                                     “VALUATION
DATE”: The date elected by the Employer as of which account balances or accrued
benefits are valued for purposes of calculating the top-heavy ratio.  The top-heavy valuation date shall be the
last day of the Plan Year.


 


(j)                                     “PRESENT
VALUE”: Present value shall be based only ON the interest and mortality rates.


 


(k)                                  “DETERMINATION
PERIOD”: The Plan Year containing the Determination Date and the four (4)
preceding Plan Year.


 


(1)                                  “NON-KEY
EMPLOYEE”: An Employee who is not a Key Employee.


 


59
















 


ARTICLE VII


 


SPECIAL
CODA LIMITATIONS


 


2.7.1                                                                        LIMITATION
ON DEFERRAL PERCENTAGE FOR HIGHLY COMPENSATED EMPLOYEES. Notwithstanding any
provision herein to the contrary, the actual deferral percentage for all Highly
Compensated Employees for each Plan Year must not exceed the actual deferral
percentage for all other Employees eligible to participate by more than the
greater of:


 


(a)                                  the actual
deferral percentage of such other Employees multiplied by 1.25; or


 


(b)                                 the actual
deferral percentage of such other Employees multiplied by 2.0, but in no event
more than two (2) percentage points greater than the actual deferral percentage
of such other Employees.


 


For purposes hereof, the actual deferral
percentages for a Plan Year for all Highly Compensated Employees and for all
other Employees respectively are the averages of the ratios, calculated separately
for each Employee in the respective group, of the amount of Elective
Contributions and Qualified Non-Elective Contributions paid under the Plan on
behalf of each such Employee for such Plan Year including Excess Elective
Deferrals to the Employee’s Compensation for such Plan Year whether or not the
Employee was a Participant for the entire Plan Year, but excluding Elective
Deferrals that are taken into account in the Contribution Percentage test
(provided the ADP test is satisfied both with and without exclusion of those
Elective Deferrals).  An Employee who
would be a Participant but for the failure to have Elective Contributions made
on his behalf shall be treated as a Participant on whose behalf no Elective Contributions
are made.  For purposes of calculating
the actual deferral percentages of Highly Compensated Employees who are 5
percent owners or among the ten most highly paid Employees, Elective
Contributions and Qualified Non-Elective Contributions on behalf of a member of
the Family of such Highly Compensated Employees shall be taken into account and
Compensation of such Employees shall include the Elective Deferrals and
Qualified Non-Elective Contributions and Compensation for the Plan Year of


 


60
















 


members of his Family (as determined in
Section 414(q)(6) of the Code).  A
member of the Family of such Highly Compensated Employees shall be disregarded
as a separate Employee in determining the actual deferral percentage both for
Participants who are Highly Compensated Employees and for all other Employees.


 


For purposes of determining the actual
deferral percentage test, Elective Contributions and Qualified Non-Elective
Contributions must be made before the last day of the twelve month period
immediately following the Plan Year to which the contributions relate.


 


The Employer shall maintain records
sufficient to demonstrate satisfaction of the actual deferral percentage test
and the amount of Qualified Non- Elective Contributions used in such test.


 


The determination and treatment of the
actual deferral percentage amounts of any Participant shall satisfy such other
requirements as may be prescribed by the Secretary of the Treasury.


 


2.7.2                                                                        MULTIPLE
PLAN LIMITATIONS.


 


(a)                                  The actual
deferral percentage for any Participant who is a Highly Compensated Employee
for the Plan Year and who is eligible to have Elective Contributions (and
Qualified Non-Elective Contributions if treated as Elective Deferrals for
purposes of the actual deferral percentage test) allocated to his or her
Accounts under two or more arrangements described in Section 401(k), of
the Code, that are maintained by the Employer, shall be determined as if such
Elective Deferrals (and, if applicable, such Qualified Non-Elective Contributions)
were made under a single arrangement. If a Highly Compensated Employee
participates in two or more cash or deferred arrangements that have different
Plan Years, all cash or deferred arrangements ending with or within the same
calendar year shall be treated as a single arrangement.


 


61
















 


(b)                                 In the
event that this Plan satisfies the requirements of Section 401(k),
401(a)(4) or 410(b) of the Code only if aggregated with one or more other
plans, or if one or more other plans satisfy the requirements of such sections
of the Code only if aggregated with this Plan, then this section shall be
applied by determining the actual deferral percentage of Employees as if all
such plans were a single plan.  For Plan
Years beginning after December 31, 1989, plans may be aggregated in order
to satisfy Section 401(k) of the Code only if they have the same Plan
Year.


 


2.7.3                                                                        LIMITATION
ON MATCHING CONTRIBUTIONS.


 


Notwithstanding any
provision herein to the contrary, the average contribution percentage for all
Highly Compensated Employees for each Plan Year must not exceed the average
contribution percentage for all other Employees eligible to participate by more
than the greater of:


 


(a)                                  the average
contribution percentage of such other Employees multiplied by 1.25; or


 


(b)                                 the average
contribution percentage of such other Employees multiplied by 2.0, but in no
event more than two (2) percentage points greater than the average contribution
percentage of such other Employees.


 


For purposes hereof, the average
contribution percentages for a Plan Year for all Highly Compensated Employees
and for all other Employees respectively are the averages of the ratios,
calculated separately for each Employee in the respective group, of the amount of
Matching Contributions paid under the Plan on behalf of each such Employee for
such Plan Year, to the Employee’s Compensation for such Plan Year whether or
not the Employee was a Participant for the entire Plan Year.  Such contribution percentage amounts shall
not include Matching Contributions that are forfeited either to correct Excess
Aggregate Contributions or because the contributions to which they relate are
Excess Elective Deferrals, Excess Contributions, or Excess Aggregate
Contributions.


 


62
















 


Such contribution percentage amounts shall
include forfeitures of Excess Aggregate Contributions or Matching Contributions
allocated to the Participant’s Accounts which shall be taken into account in
the Plan Year in which such forfeiture is allocated.  The Employer shall include only those
Qualified Non-Elective Contributions that are needed to meet the ACP test.


 


The Employer may also use Elective
Deferrals in the contribution percentage amounts so long as the ADP test is met
before the Elective Deferrals are used in the ACP test and continues to be met
following the exclusion of those Elective Deferrals that are used to meet the
ACP test.  If an Elective Contribution or
other contribution by an Employee is required as a condition of participation
in the Plan, any Employee who would be a Participant if such Employee made such
a contribution shall be treated as an eligible Participant on behalf of whom no
such contributions are made.


 


The employer shall maintain records
sufficient to demonstrate satisfaction of the average contribution percentage
test and the amount of Qualified Non-Elective Contributions used in such test.


 


The determination and treatment of the
contribution percentage of any participant shall satisfy such other
requirements as may be prescribed by the Secretary of the Treasury.


 


2.7.4.                                                                     SPECIAL
RULES


 


(a)                                  Multiple
Use: If one or more Highly Compensated Employees participate in both a CODA and
a plan subject to the ACP test maintained by the Employer and the sum of the
ADP and ACP of those Highly Compensated Employees subject to either or both
tests exceeds the Aggregate Limit, then the ACP of those Highly Compensated
Employees who also participate in a CODA shall be reduced (beginning with such
Highly Compensated Employee whose ACP is the highest) so that the limit is not
exceeded.  The amount by which each
Highly Compensated Employee’s contribution percentage amount is reduced shall
be treated as an Excess Aggregate Contribution.


 


63
















 


The ADP and ACP of the Highly Compensated
Employees are determined after any corrections required to meet the ADP and ACP
test.  Multiple use does not occur of
either the ADP or ACP of the Highly Compensated Employees does not exceed 1.25
multiplied by the ADP and ACP of the Employees who are not Highly Compensated
Employees.


 


(b)                                 The
contribution percentage for any Participant who is a Highly Compensated
Employee and who is eligible to have contribution percentage amounts allocated
to his or her Accounts under two or more plans described in Section 401
(a) of the Code, or arrangements described in Section 401(k) of the Code
that are maintained by the Employer, shall be determined as if the total of
such contribution percentage amounts was made under each plan. If a Highly
Compensated Employee participates in two or more cash or deferred arrangements
that have different plan years, all cash or deferred arrangement ending with or
within the same calendar year shall be treated as a single arrangement.


 


(c)                                  In the
event that this Plan satisfies the requirements of Sections 401(m), 401(a)(4)
or 410(b) of the Code only if aggregated with one or more other plans, or if
one or more other plans satisfy the requirements of such Sections of the Code
only if aggregated with this plan, the this section shall be applied by
determining the contribution percentages of Employees as if all such plans were
a single plan. For Plan Years beginning after December 31, 1989, plans may
be aggregated in order to satisfy Section 401(m) of the Code only if they
have the same Plan Year.


 


(d)                                 For
purposes of determining the contribution percentage of a Participant who is a
five-percent owner or one of the ten most highly-paid Highly Compensated
Employees, the contribution percentage amounts and Compensation of such
participants shall include the contribution percentage amounts and Compensation
for the Plan Year of members of the Family of such Highly Compensated
Employees.  Family members, with respect
to Highly Compensated Employees, shall be disregarded as separate employees in
determining the contribution percentage both for Participants who are Highly
Compensated Employees and for all other Employees.


 


64
















 


(e)                                  For
purposes of determining the contribution percentage test, Employee
Contributions are considered to have been made in the Plan Year in which
contributed to the trust.  Matching
Contributions and Qualified Non-Elective Contributions shall be considered made
for a Plan Year if made no later than the end of the twelve month period
beginning of the day after the close of the Plan Year.


 


2.7.5                                                                        DISTRIBUTION
OF EXCESS ELECTIVE DEFERRALS.  A
Participant may assign to the Plan any Excess Elective Deferrals made during a
taxable year of the Participant by notifying the Plan Administrator on or
before March 15 of each calendar year of the amount of the Excess Elective
Deferrals to be assigned to the Plan.  A
Participant is deemed to notify the Plan Administrator of any Excess Elective
Deferrals that arise by taking into account only those Elective Deferrals made
to this Plan and any other plans of the Employer.


 


Notwithstanding any other provision of the
Plan, Excess Elective Deferrals, plus any income and minus any loss allocable
thereto, shall be distributed no later than April 15 to any Participant to
whose account Excess Elective Deferrals were assigned for the preceding year
and who claims Excess Elective Deferrals for such taxable year.


 


Excess Elective Deferrals distributed under
this section shall be adjusted for any income or loss based on a
reasonable method of computing the allocable income or loss.  The method selected must be applied
consistently to all Participants and used for all corrective distributions
under the Plan for the Plan Year, and must be the same method that is used by
the Plan for allocating income or loss to Participants’ Accounts.  Income or loss allocable to the period
between the end of the taxable year and the date of distribution may be
disregarded in determining income or loss.


 


2.7.6                                                                        DISTRIBUTION
OF EXCESS CONTRIBUTIONS.  Notwithstanding
any other provision of this Plan, Excess Contributions, plus any income and
minus any loss allocable thereto, shall be distributed no later than the last
day of each Plan Year to Participants to whose Accounts such Excess
Contributions were allocated for the preceding Plan Year.


 


65
















 


If such excess amounts are distributed more
than 2-1/2 months after the last day of the Plan Year in which such excess
amounts arose, a ten (10) percent excise tax will be imposed on the Employer
maintaining the Plan with respect to such amounts.  Such distributions shall be made to Highly
Compensated Employees on the basis of the respective portions of the Excess
Contributions attributable to each of such Employees.  Excess Contributions of Participants who are
subject to the family member aggregation rules shall be allocated among the
family members in proportion to the Elective deferrals (and any amounts treated
as Elective Deferrals) of each family member that is combined to determine the
combined ADP.


 


Excess Contributions distributed under this
section shall be adjusted for any income or loss based on a reasonable method
of computing the allocable income or loss. 
The method selected must be applied consistently to all Participants and
used for all corrective distributions under the Plan for the Plan Year, and
must be the same method that is used by the Plan for allocating income or loss
to Participants’ Accounts.  Income or
loss allocable to the period between the end of the taxable year and the date
of distribution may be disregarded in determining income or loss.


 


Excess Contributions shall be distributed
from the Participant’s Elective Contribution Account in proportion to the
Participant’s Elective Deferrals for the Plan Year.  Excess Contributions attributable to
Qualified Non-Elective Contributions shall be distributed from the
Participant’s Qualified Non-Elective Contribution Account only to the extent
that such Excess Contributions exceed the balance in the Participant’s Elective
Contribution Account.


 


2.7.7                                                                        DISTRIBUTION
OF EXCESS AGGREGATE CONTRIBUTIONS. Notwithstanding any other provision of this
Plan, Excess Aggregate Contributions (including both Elective Contributions and
the Employer’s Matching Contributions as well as any Voluntary Contributions),
plus any income and minus any loss allocable thereto, shall be forfeited, if
forfeitable, or if not forfeitable, distributed no later than the last day of
each Plan Year to Participants to whose accounts such Excess Aggregate
Contributions were allocated for the preceding Plan Year.


 


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Excess Aggregate Contributions of
Participants who are subject to the family member aggregation rules shall be
allocated among the family members in proportion to the Employee and Matching
Contributions (or amounts treated as Matching Contributions) of each family
member that is combined to determine the combined ACP.  Such distributions shall be made to Highly
Compensated Employees on the basis of the respective portions of the Excess
Aggregate Contributions attributable to each of such Employees. If such Excess
Aggregate Contributions are distributed more than 2-1/2 months after the last
day of the Plan Year in which such excess amounts arose, a ten (10) percent
excise tax will be imposed on the Employer maintaining the Plan with respect to
those amounts.


 


Excess Aggregate Contributions distributed
under this section shall be adjusted for any income or loss based on a
reasonable method of computing the allocable income or loss.  The method selected must be applied
consistently to all Participants and used for all corrective distributions
under the Plan for the Plan Year, and must be the same method that is used by
the Plan for allocating income or loss to Participants’ Accounts.  Income or loss allocable to the period
between the end of the taxable year and the date of distribution may be
disregarded in determining income or loss.


 


Forfeitures of Excess Aggregate
Contributions shall be reallocated to the accounts of Employees who are not
Highly Compensated Employees.


 


Excess Aggregate Contributions shall be
forfeited, if forfeitable or distributed on a pro-rata basis from the
Participant’s Matching Account and Voluntary Account (and, if applicable, the
Participant’s Elective Contribution Account).


 


2.7.8                                                                        LIMITATION
ON DISTRIBUTIONS.  Except as otherwise
provided in this Article, Elective Deferrals and Qualified Non-Elective
Contributions and income allocable thereto are not distributable to a
Participant or his or her Beneficiary in accordance with such Participant’s or
Beneficiary’s election prior to separation from service, death or disability.  Such amounts may, however, be distributed
upon:


 


(a)                                  Termination
of the Plan without the establishment of another defined contribution plan.


 


67
















 


(b)                                 The
disposition by a corporation to an unrelated corporation of substantially all
of the assets (within the meaning of Section 409(d)(2) of the Code) used
in a trade or business of such corporation if such corporation continues to
maintain this Plan after the disposition, but only with respect to employees
who continue employment with the corporation acquiring such assets.


 


(c)                                  The
disposition by a corporation to an unrelated entity of such corporation’s
interest in a subsidiary (within the meaning of Section 409(d)(3) of the
Code) if such corporation continues to maintain this Plan, but only with
respect to employees who continue employment with such subsidiary.


 


(d)                                 The
attainment of age 59 1/2.


 


(e)                                  The
Hardship of a Participant in accordance with Section 2.5.6.


 


All such distributions are subject to the
spousal and Participant consent requirements, if applicable, contained in
Sections 401 (a) (11) and 417 of the Code.


 


2.7.9                                                                        LIMITATION
ON ELECTIVE DEFERRALS.  No Participant
shall be permitted to have Elective Deferrals made under this Plan, or any other
qualified plan maintained by the Employer, during any taxable year, in excess
of the dollar limitation contained in Section 402(g) of the Code in effect
at the beginning of such taxable year.


 


68
















 


PART
III


 


ARTICLE I


 


ACCOUNTING


 


3.1.1                                                                        ACCOUNTS.  All income, profits, recoveries,
contributions and any and all monies, securities and properties of any kind at
any time received or held by the Trustee shall be held as a commingled Trust
Fund, except to the extent such assets are transferred to a Segregated Fund or
Controlled Fund.  For accounting
purposes, the Plan Administrator shall establish and maintain certain Accounts
for each Participant.  An Employer
Account shall be established and maintained for each Participant to which shall
be added the Participant’s share of Non-Elective Contributions and
forfeitures.  A Matching Account shall be
established and maintained for each Participant to which shall be added the
Participant’s share of Matching Contributions and forfeitures.  A Qualified Non-Elective Contribution Account
shall be established and maintained for each Participant to which shall be
added the Participant’s share of Qualified Non-Elective Contributions.  If a Participant has previously made voluntary
nondeductible employee contributions, the Plan Administrator shall establish
and maintain a Voluntary Account for the Participant.  If, in accordance with any of the provisions
of the Plan, assets are either deposited initially or transferred to a Segregated
Fund for the benefit of a Participant, the Plan Administrator shall establish
and maintain a Segregated Account for the Participant.  If a Participant elects to exercise
investment control over all or a portion of his Accounts, the Plan
Administrator shall establish and maintain a Controlled Account for the
Participant.


 


3.1.2                                                                        ADJUSTMENTS.  As of each Valuation Date each Participant’s
Accounts shall be adjusted in the following order and manner.


 


(a)                                  DISTRIBUTIONS.  Any distribution made to or on behalf of a
Participant since the last preceding Valuation Date shall be deducted from the
Participant’s Account from which the distribution was made.


 


(b)                                 INSURANCE
PREMIUMS.  Payments made since the last


 


69
















 


preceding Valuation Date for Life Insurance
Policies on the life of a Participant (including without limitation payments of
premiums and interest on policy loans) shall be deducted from the Account of
the Participant from which the payment was made.


 


(c)                                  ADJUSTMENT
TO FAIR MARKET VALUE.  The value of all
monies, securities and other property in the Trust Fund, excluding Life
Insurance Policies, SHALL be appraised by the Trustee at the then fair market
value.  In determining such value, all
income and contributions, if any, received by the Trustee from the Employer or
Participants on account of such year calculated under the method of accounting
of the Trust shall be included and there shall be deducted all expenses
determined in accordance with the method of accounting adopted by the Plan
Administrator.


 


If the total net value of the Trust Fund so
determined exceeds (or is less than) the total amount in the affected Accounts
of all Participants, the excess (or deficiency) shall be added to (or deducted
from) the respective Accounts of all Participants in the ratio that each such
Participant’s Account bears to the total amount in all such Accounts.


 


(d)                                 ADJUSTMENT
OF SEGREGATED AND CONTROLLED ACCOUNTS. 
The value of all monies, securities and other property in each
Participant’s Segregated Account or Controlled Account, if any, but exclusive
of Life Insurance Policies, shall be appraised by the Trustee at the then fair
market value.  In determining such value,
all income calculated under the method of accounting of the Trust shall be
included and all expenses shall be deducted.


 


If the total net value of a Participant’s
Segregated Account or Controlled Account, as the case may be, so determined
exceeds (or is less than) the previous balance in such Account, the excess (or
deficiency) shall be added to (or deducted from) the Participant’s respective
Account.


 


70
















 


(e)                                  INSURANCE
DIVIDENDS.  Dividends or credits received
since the last preceding Valuation Date on any Life Insurance Policy on the
life of a Participant shall be added to the Account of the Participant from
which the premiums for such Life Insurance Policy have been paid.


 


(f)                                    CONTRIBUTIONS
AND FORFEITURES.  Each Participant’s
Account shall be increased BY that portion of the contribution and forfeitures
which is allocated to him.


 


(g)                                 TRANSFERS
FROM TRUST FUND.  To the extent that
funds in the Trust Fund attributable to a Participant’s Account were
transferred since the last preceding Valuation Date or are to be transferred to
a Segregated Fund pursuant to any of the provisions of the Plan, the Account
from which the funds were transferred shall be decreased and the Account to
which the funds were transferred shall be increased.


 


(h)                                 TRANSFERS
TO TRUST FUND.  To the extent that funds
are transferred from a Segregated Fund of a Participant to the Trust Fund
pursuant to any of the provisions of the Plan, the Account from which the funds
were transferred shall be decreased and the Account of the Participant to which
the funds were transferred shall be increased.


 


(i)                                     TIME OF
ADJUSTMENTS.  Every adjustment to be made
pursuant to this Section shall be considered as having been made as of the
applicable Valuation Date regardless of the actual dates of entries, receipt by
the Trustee of contributions by the Participant or the Employer for such Year,
or the transfers of funds to or from Segregated Funds.  The Trustee’s determination as to valuation
of trust assets and charges or credits to the individual Accounts of the
respective Participants shall be conclusive and binding on all persons.  If funds are transferred to a Segregated Fund
as of any date other than a Valuation Date pursuant to the terms of the Plan,
the adjustments to be made pursuant to this Section shall be made as of
the date as of which the transfer is made, as if such date is a Valuation
Date.  If any Participant receives a
distribution pursuant to the terms of the Plan as of any date other than a
Valuation Date, then earnings will be credited solely as of the immediately
preceding Valuation Date.


 


71
















 


ARTICLE II


 


LIMITATIONS


 


3.2.1                                                                        LIMITATIONS
ON ANNUAL ADDITIONS. If the Participant does not participate in, and has never
participated in another qualified plan maintained by the Employer, or an
individual medical account, as defined in Section 415(l)(2) of the Code,
maintained by the Employer, which provides an annual addition, subject to the
adjustments hereinafter set forth, the amount of annual additions which may be
credited to a Participant’s Accounts during any Limitation Year shall in no
event exceed the lesser of (a) thirty thousand dollars ($30,000.00) or, if
greater, one-fourth of the dollar limitation in effect under
Section 415(b)(1)(A) of the Code as in effect for the Limitation Year or
(b) twenty-five percent (25%) of the Participant’s Compensation for the Plan
Year.  The compensation limitation
referred to in (b) shall not apply to any contribution for medical benefits
(within the meaning of Section 401(h) or Section 419A(f)(2) of the
Code) which is otherwise treated as an annual addition under
Section 415(l)(1) or 419A(d)(2) of the Code.  If the Employer contribution that would
otherwise be contributed or allocated to the Participant’s Account would cause
the annual additions for the Limitation Year to exceed the maximum permissible
amount, the amount contributed or allocated shall be reduced so that the annual
additions for the Limitation Year shall equal the maximum permissible amount.  For these purposes, the maximum permissible
amount is the maximum annual additions permitted on behalf of a Participant.


 


(a)                                  ANNUAL
ADDITIONS.  The term “annual additions”
shall mean, the sum of the following amounts credited to a Participant’s
Accounts for the Limitation Year:


 


(i)                                     Employer
contributions;


 


(ii)                                  Employee
contributions;


 


(iii)                               Forfeitures;
and


 


(iv)                              Amounts
allocated after March 31, 1984, to an individual medical account, as
defined in Section 415(l)(2) of the Code, which is part of a pension or


 


72
















 


annuity plan maintained by the Employer and
amounts derived from contributions paid or accrued after December 31,
1985, in taxable years ending after such date, which are attributable to
post-retirement medical benefits, allocated to the separate account of a key
employee, as defined in Section 419A(d)(3) of the Code, under a welfare
benefit fund as defined in Section 419(e) of the Code, maintained by the
Employer.


 


Any excess amounts applied under subsections
(b) and (c) below to reduce Employer contributions are considered annual
additions for such Limitation Year.


 


(b)                                 EXCESSIVE
ANNUAL ADDITIONS.  Prior to determining a
Participant’s actual Compensation for a Limitation Year, the Employer may
determine the maximum permissible Annual Addition for the Participant on the
basis of a reasonable estimation of the Participant’s Compensation for the
Limitation Year, uniformly determined for all Participants similarly
situated.  As soon as is administratively
feasible after the end of the Limitation Year, the maximum permissible amount
for the Limitation Year shall be determined on the basis of the Participant’s
actual Compensation for the Limitation Year. 
Any Excessive Annual Addition attributable to nondeductible voluntary
employee contributions made by a Participant to the extent they reduce the
excess amount shall be returned to the Participant before any other adjustments
are made.


 


If an excess amount still exists, and the
Participant is covered by the Plan at the end of the Limitation Year, the
excess amount in the Participant’s Account shall be used to reduce Employer
contributions (including any allocation of forfeitures) for such Participant in
the next Limitation Year, and each succeeding Limitation Year, if
necessary.  If an excess amount still
exists, and the Participant is not covered by the Plan at the end of a
Limitation Year, the excess amount shall be held unallocated in a suspense
account.


 


73
















 


The suspense account shall be applied to
reduce future Employer contributions for all remaining Participants in the next
Limitation Year, and each succeeding Limitation Year, if necessary.


 


If a suspense account is in existence at
any time during a particular Limitation Year, all amounts in the suspense
account must be allocated and reallocated to Participants’ Accounts before any
Employer or any Employee contributions may be made to the Plan for that
Limitation Year.  Excess amounts may not
be distributed to Participants or former Participants.  If a suspense account is in existence at any
time during a Limitation Year, it shall not participate in the allocation of
the Trust’s investment gains and losses.


 


(c)                                  PARTICIPATION
IN CERTAIN OTHER PLANS.  If in addition
to this Plan, the Participant is covered under another qualified defined
contribution plan maintained by the Employer, a welfare benefit fund, as
defined in Section 419(e) of the code maintained by the Employer, or an
individual medical account, as defined in Section 415(l)(2) of the Code,
maintained by the Employer, which provides an Annual Addition during any
Limitation Year, the annual additions which may be credited to a Participant’s
account under this Plan for any such Limitation Year shall not exceed the
maximum permissible amount reduced by the Annual Additions credited to a
Participant’s Account under the other plans and welfare benefit funds for the
same Limitation Year.  If the Annual
Additions with respect to the Participant under other defined contribution
plans and welfare benefit funds maintained by the Employer are less than the
maximum permissible amount and the Employer contribution that would otherwise
be contributed or allocated to the Participant’s Account under this Plan would
cause the Annual Additions for the Limitation Year to exceed this limitation,
the amount contributed or allocated shall be reduced so that the Annual
Additions under all such plans and funds for the Limitation Year shall equal
the maximum permissible amount.


 


74
















 


If the Annual Additions with respect to the
Participant under such other defined contribution plans and welfare benefit
funds in the aggregate are equal to or greater than the maximum permissible
amount, no amount will be contributed or allocated to the Participant’s Account
under this Plan for the Limitation Year.


 


Prior to determining the Participant’s
actual Compensation for the Limitation Year, the Employer may determine the
maximum permissible amount for a Participant in the manner described in
subsection (b) above.  As soon as is
administratively feasible after the end of the Limitation Year, the maximum
permissible amount for the Limitation Year shall be determined on the basis of
the Participant’s actual Compensation for the Limitation Year.


 


If a Participant’s Annual Additions under
this Plan and such other plans would result in an excess amount for a
Limitation Year, the excess amount shall be deemed to consist of the Annual
Additions last allocated, except that Annual Additions attributable to a
welfare benefit fund or individual medical account will be deemed to have been
allocated first regardless of the actual allocation date.


 


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


 


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


 


(ii)                                  the ratio
of (I) the Annual Additions allocated to the Participant for the Limitation
Year as of such date under this Plan to (II) the total Annual Additions
allocated to the Participant for the Limitation Year as of such date under this
and all the other qualified defined contribution plans.  Any excess amount attributed to this Plan
will be disposed in the manner described in subsection (b), above.


 


For purposes hereof, the excess amount is
the excess of the Participant’s annual additions for the Limitation Year over
the maximum permissible amount.


 


75
















 


If the Employer maintains, or at any time
maintained, a qualified defined benefit plan covering any Participant in this
Plan, the sum of the Participant’s defined benefit plan fraction and defined
contribution plan fraction will not exceed 1.0 in any Limitation Year.


 


(d)                                 COMBINED
PLAN LIMITATION.  In the event that a
Participant in this Plan participates in a defined benefit plan (as defined in
the applicable sections of the Code) maintained by the Employer, the sum of the
“defined benefit plan fraction” plus the “defined contribution plan fraction”
shall at no time exceed 1.0. Except to the extent that applicable law permits
greater amounts to be provided on behalf of a Participant, in which event such
law is hereby incorporated by reference, the foregoing fractions are defined as
follows.  The  “defined benefit plan fraction” for any year
is a fraction (i) the numerator of which is the projected annual benefit of the
Participant under all the defined benefit plans (whether or not terminated)
maintained by the Employer (determined as of the close of the year), and (ii)
the denominator of which is the lesser of (A) the product of  1.25 multiplied by the dollar limitation
determined for the Limitation Year under Sections 415(b) and (d) of the Code,
or (B) the product of  1.4 multiplied by
one hundred (100%) percent of the Participant’s average compensation for the
three (3) consecutive Years of Service with the Employer that produces the
highest average, including any adjustments under Section 415(b) of the
Code.  Notwithstanding the above, if the
Participant was a Participant as of the first day of the first Limitation Year
beginning after December 31, 1986, in one or more defined benefit plans
maintained by the Employer which were in existence on May 6, 1986, the
denominator of this fraction shall not be less than 125 percent of the sum of
the annual benefits under such plans which the Participant had accrued as of
the close of the last Limitation Year beginning before January 1, 1987,
disregarding any changes in the terms and conditions of the Plan after May 5,
1986.


 


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The preceding sentence applies only if the
defined benefit plans individually and in the aggregate satisfied the
requirements of Section 415 for all Limitation Years beginning before
January 1, 1987.  The “defined
contribution fraction” for any year is a fraction (i) the numerator of which is
the sum of the annual additions to the Participant’s accounts under all defined
contribution plans (whether or not terminated) maintained by the Employer for
the current and all prior Limitation Years, including the annual additions
attributable to the Participant’s nondeductible employee contributions to all
defined benefit plans, whether or not terminated, maintained by the Employer,
and the annual additions attributable to all welfare benefit funds and
individual medical accounts (as defined in Sections 419(e) and 415(l)(2) of the
Code) maintained by the Employer, and (ii) the denominator of which is the sum
of the lesser of the following amounts determined for the current year and for
all prior limitation years of service with the Employer, regardless of whether
a defined contribution plan was maintained by the Employer: (A) the product of
1.25 multiplied by the dollar limitation determined under Sections 415(b) and
(d) of the Code in effect under Section 415(c)(1)(A) of the Code, or (B)
thirty-five (35%) percent of the Participant’s compensation from the Employer
for such plan year.  If the Employee was
a Participant as of the end of the first day of the first Limitation Year
beginning after December 31, 1986, in one or more defined contribution
plans maintained by the Employer which were in existence on May 6, 1986, the
numerator of this fraction will be adjusted if the sum of this fraction and the
defined benefit fraction would otherwise exceed 1.0 under the terms of this
Plan. Under the adjustment, an amount equal to the product of (1) the excess of
the sum of the fractions over 1.0 times (2) the denominator of this fraction,
shall be permanently subtracted from the numerator of this fraction.  The adjustment is calculated using the
fractions as they would be computed as of the end of the last Limitation Year
beginning before January 1, 1987, and disregarding any changes in the
terms and conditions of the Plan made after May 5, 1986, but using the
Section 415 limitation applicable to the first Limitation Year beginning
on or after January 1, 1987.


 


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The annual addition for any Limitation Year
beginning before January 1, 1987, shall not be recomputed to treat all
employee contributions as annual additions.


 


The projected annual benefits under a
defined benefit plan is the annual retirement benefit (adjusted to an
actuarially equivalent straight life annuity if such benefit is expressed in a
form other than a straight life annuity) or qualified joint and survivor
annuity) to which the Participant would be entitled under the terms of the Plan
assuming the Participant continues employment until normal retirement age under
the plan (or current age, if later), and the Participant’s compensation for the
current Limitation Year and all other relevant factors used to determine
benefits under the Plan remain constant for all future Limitation Years.


 


(e)                                  SPECIAL
TRANSITION RULE FOR DEFINED CONTRIBUTION FRACTION.  At the election of the Plan Administrator, in
applying the provisions of subsection (d) above with respect to the
defined contribution plan fraction for any year ending after December 31,
1982, the amount taken into account for the denominator for each Participant
for all years ending before January 1, 1983 shall be an amount equal to
the product of the amount of the denominator determined under
subsection (d) above for the year ending in 1982, multiplied by the
“transition fraction”.  The “transition
fraction” is a fraction (i) the numerator of which is the lesser of (A) $51,875
or (B) 1.4 multiplied by twenty-five (25%) percent of the Participant’s
compensation for the year ending in 1981, and (ii) the denominator of which is
the lesser of (A) $41,500 or (B) twenty-five (25%) percent of the Participant’s
compensation for the year ending in 1981.


 


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(f)                                    SPECIAL
TRANSITION RULE FOR EXCESS BENEFITS. 
Provided that the Plan satisfied the requirements of Section 415 of
the Code for the last Plan Year beginning before January 1, 1983, an
amount shall be subtracted from the numerator of the defined contribution plan
fraction (not exceeding such numerator) so that the sum of the defined benefit
plan fraction and the defined contribution fraction computed in accordance with
Section 415(e)(1) of the Code (as amended by the Tax Equity and Fiscal
Responsibility Act of 1982) does not exceed 1.0 for such year, in accordance
with regulations issued by the Secretary of the Treasury pursuant to the
applicable provisions of the Code.


 


(g)                                 EMPLOYER.  For purposes of this Section, employer shall
mean the Employer that adopts this Plan and all members of a group of employers
which constitutes a controlled group of corporations or trades or businesses
under common control (as defined in Sections 414(b) and (c) of the Code, as
modified by Section 415(h) of the Code), or an affiliated service group
(as defined in Section 414(m) of the Code) of which the adopting employer
is part and any other entity required to be aggregated with the Employer under
Section 414(o) of the Code and the regulations issued thereunder.


 


(h)                                 COMPENSATION.  For purposes of this Section, Compensation
shall mean all of a Participant’s: Section 415 Safe-harbor
Compensation.  Wages, salaries and fees
for professional services and other amounts received for personal services
actually rendered in the course of employment for the Employer (including but
not limited to commissions paid salesmen, compensation for services on the
basis of a percentage of profits, commissions on insurance premiums, tips,
bonuses, fringe benefit, reimbursements and expense allowances), but excluding:


 


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


 


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(II)                                Amounts
realized from the exercise of a non-qualified stock option or when restricted
stock or property held by the Employee is no longer subject to a substantial
risk of forfeiture or becomes freely transferable.


 


(III)                            Amounts
realized from the sale, exchange or other disposition of stock acquired under
an incentive stock option; and


 


(IV)                            Other
amounts which received special tax benefits or contributions made by the
Employer (whether or not under a salary reduction agreement) towards the
purchase of an annuity described in Section 403(b) of the Code (whether or
not the amounts are actually excludable from the gross income of the Employee).


 


For any self-employed individual,
compensation shall mean earned income. For limitation years beginning after
December 31, 1991, for purposes of applying the limitations of this
Article, Compensation for a Limitation Year is the Compensation actually paid
or includible in gross income during such Limitation Year.


 


(i)                                     SHORT
LIMITATION YEAR.  If the Limitation Year
is amended to a different twelve (12) consecutive month period, the new
Limitation Year must begin within the Limitation Year in which the amendment is
made.  If a short Limitation Year is
created because of an amendment changing the Limitation Year to a different twelve
(12) consecutive month period, the maximum annual addition shall not exceed the
defined contribution dollar limitation determined in accordance with
Section 415(c)(1)(A) of the Code then in effect multiplied by a fraction,
the numerator of which is the number of months in the short Limitation Year and
the denominator of which is twelve (12).


 


3.2.2                        CONTROLLED
BUSINESSES.  If this plan provides
contributions or benefits for one or more owner-employees who control both the
business for which this plan is established and one or more other trades or
businesses, this plan and the plan established for other trades or businesses
must, when looked at as a single plan, satisfy sections 401(a) and (d) for the
employees of this and all other trades or businesses.


 


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If the plan provides contributions or
benefits for one or more owner-employees who control one or more other trades
or businesses, the employees of the other trades or businesses must be included
in a plan which satisfies sections 401(a) and (d) and which provides
contributions and benefits not less favorable than provided for owner-employees
under this plan.


 


If an individual is covered as an
owner-employee under the plans of two or more trades or businesses which are
not controlled and the individual controls a trade or business, then the
contributions or benefits of the employees under the plan of the trades or
businesses which are controlled must be as favorable as those provided for him
under the most favorable plan of the trade or business which is not controlled.


 


For purposes of the preceding paragraphs,
an owner-employee, or two or more owner-employees, will be considered to
control a trade or business if the owner-employee, or two or more
owner-employees together:


 


(a)                                  own the
entire interest in an unincorporated trade or business, or


 


(b)                                 in the case
of a partnership, own more than 50 percent of either the capital interest or
the profits interest in the partnership.


 


For purposes of the preceding sentence, an
owner-employee, or two or more owner-employees shall be treated as owning any
interest in a partnership which is owned, directly or indirectly, by a
partnership which such owner-employee, or such two or more owner-employees, are
considered to control within the meaning of the preceding sentence.


 


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ARTICLE III


 


FIDUCIARIES


 


3.3.1                                                                        STANDARD
OF CONDUCT.  The duties and
responsibilities of the Plan Administrator and the Trustee with respect to the
Plan shall be discharged (a) in a non-discriminatory manner; (b) for the
exclusive benefit of Participants and their Beneficiaries; (c) by defraying the
reasonable expenses of administering the Plan; (d) with the care, skill,
prudence, and diligence under the circumstances then prevailing that a prudent
man acting in a like capacity and familiar with such matters would use in the
conduct of an enterprise of a like character and with like aims; (e) by
diversifying the investments of the Plan so as to minimize the risk of large
losses, unless under the circumstances it is clearly prudent not to do so; and
(f) in accordance with the documents and instruments governing the Plan insofar
as such documents and instruments are consistent with the provisions of the
Act.


 


3.3.2                                                                        INDIVIDUAL
FIDUCIARIES.  At any time that a group of
individuals is acting as Plan Administrator or Trustee, the number of such
persons who shall act in such capacity from time to time shall be determined by
the Employer.  Such persons shall be
appointed by the Employer and may or may not be Participants or Employees of
the Employer.  Any action taken by a
group of individuals acting as either Plan Administrator or Trustee shall be
taken at the direction of a majority of such persons, or, if the number of such
persons is two (2), by unanimous consent.


 


3.3.3                                                                        DISQUALIFICATION
FROM SERVICE.  No person shall be
permitted to serve as a Fiduciary, custodian, counsel, agent or employee of the
Plan or as a consultant to the Plan who has been convicted of any of the
criminal offenses specified in the Act.


 


3.3.4                                                                        BONDING.  Except as otherwise permitted by law, each
Fiduciary or person who handles funds or other property or assets of the Plan
shall be bonded in accordance with the requirements of the Act.


 


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3.3.5                                                                        PRIOR
ACTS.  No Fiduciary shall be liable for
any acts occurring prior to the period of time during which the Fiduciary was
actually serving in such capacity with respect to the Plan.


 


3.3.6.                                                                     INSURANCE
AND INDEMNITY.  The Employer may purchase
or cause the Trustee to purchase and keep current as an authorized expense
liability insurance for the Plan, its Fiduciaries, and any other person to whom
any financial or other administrative responsibility with respect to the Plan
and Trust is allocated or delegated, from and against any and all liabilities,
costs and expenses incurred by such persons as a result of any act or omission
to act in connection with the performance of the duties, responsibilities and
obligations under the Plan and under the Act; provided that any such insurance
policy purchased with Plan assets permits subrogation by the Insurer against
the Fiduciary in the case of breach by such Fiduciary.  Unless otherwise determined and communicated
to affected parties by the Employer, the Employer shall indemnify and hold
harmless such person, other than a corporate trustee, for and from any such
liabilities, costs and expenses which are not covered by any such insurance,
except to the extent that any such liabilities, costs or expenses are
judicially determined to be due to the gross negligence or willful misconduct
of such person.  No Plan assets may be
used for any such indemnification.


 


3.3.7                                                                        EXPENSES.  Expenses incurred by the Plan Administrator
or the Trustees in the administration of the Plan and the Trust, including fees
for legal services rendered, such compensation to the Trustee as may be agreed
upon in writing from time to time between the Employer and the Trustee, and all
other proper charges and expenses of the Plan Administrator or the Trustee and
of their agents and counsel shall be paid by the Employer, or at its election
at any time or from time to time, may be charged against the assets of the
Trust, but until so paid shall constitute a charge upon the assets of the Trust.  The Trustee shall have the authority to
charge the Trust Fund for its compensation and reasonable expenses unless paid
or contested by written notice by the Employer within sixty (60) days after
mailing of the written billing by the Trustee.


 


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All taxes of any and all kinds whatsoever
which may be levied or assessed under existing or future laws upon the assets
of the Trust or the income thereof shall be paid from such assets.  Notwithstanding the foregoing, no
compensation shall be paid to any Employee for services rendered under the Plan
and Trust as a Trustee.


 


3.3.8                                                                        AGENTS,
ACCOUNTANTS AND LEGAL COUNSEL.  The Plan
Administrator shall have authority to employ suitable agents, custodians,
investment counsel, accountants and legal counsel who may, but need not be,
legal counsel for the Employer.  The Plan
Administrator and the Trustee shall be fully protected in acting upon the
advice of such persons.  The Trustee
shall at no time be obliged to institute any legal action or to become a party
to any legal action unless the Trustee has been indemnified to the Trustee’s
satisfaction for any fees, costs and expenses to be incurred in connection
therewith.


 


3.3.9                                                                        INVESTMENT
MANAGER.  The Employer may employ as an
investment manager or managers to manage all or any part of the Trust Fund any
(i) investment advisor registered under the Investment Advisors Act of 1940;
(ii) bank as defined in said Act; or (iii) insurance company qualified to
perform investment management services in more than one state.  Any investment manager shall have all powers
of the Trustee in the management of such part of the Trust Fund, including the
power to acquire or dispose of assets. 
In the event an investment manager is so appointed, the Trustee shall
not be liable for the acts or omissions of such investment manager or be under
any obligation to invest or otherwise manage that part of the Trust Fund which
is subject to the management of the investment manager.  The Employer shall notify the Trustee in
writing of any appointment of an investment manager, and shall provide the
Trustee with the investment manager’s written acknowledgment that it is a
fiduciary with respect to the Plan.


 


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3.3.10                                                                  FINALITV
OF DECISIONS OR ACTS.  Except for the
right of a Participant or Beneficiary to appeal the denial of a claim, any
decision or action of the Plan Administrator or the Trustee made or done in
good faith upon any matter within the scope of authority and discretion of the
Plan Administrator or the Trustee shall be final and binding upon all
persons.  In the event of judicial review
of actions taken by any Fiduciary within the scope of his duties in accordance
with the terms of the Plan and Trust, such actions shall be upheld unless
determined, to have been arbitrary and capricious.


 


3.3.11                                                                  CERTAIN
CUSTODIAL ACCOUNTS AND CONTRACTS.  The
term “Trustee” as used herein will also include a person holding the assets of
a custodial account, an annuity Contract or other Contract which is treated as
a qualified trust pursuant to Section 401(f) of the Code and references to
the Trust Fund shall be construed to apply to such custodial account, annuity
Contract or other Contract.


 


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ARTICLE IV


 


PLAN
ADMINISTRATOR


 


3.4.1                                                                        ADMINISTRATION
OF PLAN.  The Plan Administrator shall be
designated by the Employer from time to time. 
The primary responsibility of the Plan Administrator is to administer
the Plan for the exclusive benefit of the Participants and their Beneficiaries,
subject to the specific terms of the Plan. The plan Administrator shall
administer the Plan and shall construe and determine all questions of
interpretation or policy ‘in a manner consistent with the Plan.  The Plan Administrator may correct any
defect, supply any omission, or reconcile any inconsistency in such manner and
to such extent as he shall deem necessary or advisable to carry out the purpose
of the Plan; provided, however, that any interpretation or construction shall
be done in a nondiscriminatory manner and shall be consistent with the intent
that the Plan shall continue to be a qualified Plan pursuant to the Code, and
shall comply with the terms of the Act. 
The Plan Administrator shall have all powers necessary or appropriate to
accomplish his duties under the Plan.


 


(a)                                  The Plan
Administrator shall be charged with the duties of the general administration of
the Plan, including but not limited to the following:


 


(1)                                  To
determine all questions relating to the eligibility of an Employee to
participate in the Plan or to remain a Participant hereunder.


 


(2)                                  To compute,
certify and direct the Trustee with respect to the amount and kind of benefits
to which any Participant shall be entitled hereunder.


 


(3)                                  To
authorize and direct the Trustee with respect to all disbursements from the
Trust Fund.


 


(4)                                  To maintain
all the necessary records for the administration of the Plan.


 


(5)                                  To
interpret the provisions of the Plan and to make and publish rules and
regulations for the Plan as the Plan Administrator may deem reasonably
necessary for the proper and efficient administration of the Plan


 


86
















 


and consistent with its terms.


 


(6)                                  To select
the Insurer to provide any Life Insurance Policy to be purchased for any
Participant hereunder.


 


(7)                                  To advise
the Fiduciary with investment authority regarding the short and long-term
liquidity needs of the Plan in order that the Fiduciary might direct its investment
accordingly.


 


(8)                                  To advise,
counsel and assist any Participant regarding any rights, benefits or elections
available under the Plan.


 


(9)                                  To instruct
the Trustee as to the management, investment and reinvestment of the Trust Fund
unless the investment authority has been delegated to the Trustee or an
Investment Manager.


 


(b)                                 The Plan
Administrator shall also be responsible for preparing and filing such annual
disclosure reports and tax forms as may be required from time to time by the
Secretary of Labor, the Secretary of the Treasury or other governmental
authorities.


 


(c)                                  Whenever it
is determined by the Plan Administrator to be in the best interest of the Plan
and its Participants or Beneficiaries, the Plan Administrator may request such
variances, deferrals, extensions, or exemptions or make such elections for the
Plan as may be available under the law.


 


(d)                                 The Plan
Administrator shall be responsible for procuring bonding for all persons
dealing with the Plan or its assets as may be required by law.


 


(e)                                  In the
event this Plan is required to file reports or pay premiums to the Pension
Benefit Guaranty Corporation, the Plan Administrator shall have the duty to
prepare and make such filings, to pay any premiums required, whether for basic
or contingent liability coverage, and shall be charged with the responsibility
of notifying all necessary parties of such events and under such circumstances
as may be required by law.


 


87
















 


3.4.2                                                                        DISCLOSURE
REQUIREMENTS.  Every Participant covered
under the Plan and every Beneficiary receiving benefits under the Plan shall
receive from the Plan Administrator a summary plan description, and such other
information as may be required by law or by the terms of the Plan.


 


3.4.3                                                                        INFORMATION
GENERALLY AVAILABLE.  The Plan
Administrator shall make copies of this Plan and Trust, the summary plan
description, latest annual report, Life Insurance Policies, or other
instruments under which the Plan was established or is operated available for
examination by any Participant or Beneficiary in the principal office of the
Plan Administrator and such other locations as may be necessary to make such
information reasonably accessible to all interested parties.  Subject to a reasonable charge to defray the
cost of furnishing such copies, the Plan Administrator shall, upon written
request of any Participant or Beneficiary, furnish a copy of any of the above
Documents to the respective party.


 


3.4.4                                                                        STATEMENT
OF ACCRUED BENEFIT.  Upon written request
to the Plan Administrator once during any twelve (12) month period, a
Participant or Beneficiary shall be furnished with a written statement, based
on the latest available information, of his then vested accrued benefit and the
earliest date upon which the same will become fully vested and
nonforfeitable.  The statement shall also
include a notice to the Participant of any benefits which are forfeitable if
the Participant dies before a certain date.


 


3.4.5                                                                        EXPLANATION
OF ROLLOVER Treatment.  The Plan
Administrator shall, when making a distribution eligible for rollover
treatment, provide a written explanation to the recipient of the provisions
under which such distribution will not be subject to tax if transferred to an
eligible retirement plan within sixty (60) days after the date on which the
recipient received the distribution and, if applicable, the provisions of law
pertaining to the tax treatment of lump sum distributions.


 


88
















 


ARTICLE V


 


TRUSTEE


 


3.5.1                                                                        ACCEPTANCE
OF TRUST.  The Trustee, by joining in the
execution of the Plan, agrees to act in accordance with the express terms and
conditions hereof.


 


3.5.2                                                                        TRUSTEE
CAPACITY - CO-TRUSTEES.  The Trustee may
be a bank, trust company or other corporation possessing trust powers under
applicable state or federal law or one or more individuals or any combination
thereof. When there are two or more Trustees, they may allocate specific
responsibilities, obligations or duties among themselves by their written
agreement.  An executed copy of such
written agreement shall be delivered to and retained by the Plan Administrator.


 


3.5.3                                                                        RESIGNATION,
REMOVAL, AND SUCCESSORS.  Any Trustee may
resign at any time by delivering to the Employer a written notice of resignation
to take effect at a date specified therein, which shall not be less than thirty
(30) days after the delivery thereof; the Employer may waive such notice.  The Trustee may be removed by the Employer
with or without cause, by tendering to the Trustee a written notice of removal
to take effect at a date specified therein. 
Upon such removal or resignation of a Trustee, the Employer shall either
appoint a successor Trustee who shall have the same powers and duties as those
conferred upon the resigning or discharged Trustee, or, if a group of
individuals is acting as Trustee, determine that a successor shall not be
appointed and the number of Trustees shall be reduced by one (1).


 


3.5.4                                                                        CONSULTATIONS.  The Trustee shall be entitled to advice of
counsel, which may be counsel for the Plan or the Employer, in any case in
which the Trustee shall deem such advice necessary.  The Trustee shall not be liable for any
action taken or omitted in good faith reliance upon the advice of such
counsel.  With the exception of those
powers and duties specifically allocated to the Trustee by the express terms of
the Plan, it shall not be the responsibility of the Trustee to interpret the
terms of the Plan and the Trustee may request, and is entitled to receive,
guidance and written direction from the Plan Administrator on any point
requiring construction or interpretation of the Plan Documents.


 


89
















 


3.5.5                                                                        RIGHTS,
POWERS AND DUTIES.  The rights, powers
and duties of the Trustee shall be as follows:


 


(a)                                  The Trustee
shall be responsible for the safekeeping of the assets of the Trust Fund in
accordance with the provisions of the Plan and any amendments hereto.  The duties of the Trustee under the Plan
shall be determined solely by the express provisions hereof and no other
further duties or responsibilities shall be implied.  Subject to the terms of this Plan, the
Trustee shall be fully protected and shall incur no liability in acting in
reliance upon the written instructions or directions of the Employer, the Plan
Administrator, a duly designated investment manager, or any other named
Fiduciary.


 


(b)                                 The Trustee
shall have all powers necessary or convenient for the orderly and efficient
performance of its duties hereunder, including but not limited to those
specified in this Section.  The Trustee
shall have the power generally to do all acts, whether or not expressly
authorized, which the Trustee in the exercise of its fiduciary responsibility
may deem necessary or desirable for the protection of the Trust Fund and the
assets thereof.


 


(c)                                  The Trustee
shall have the power to collect and receive any and all monies and other
property due hereunder and to give full discharge and release therefore; to
settle, compromise or submit to arbitration any claims, debts or damages due to
or owing to or from the Trust Fund; to commence or defend suits or legal
proceedings wherever, in the Trustee’s judgment, any interest of the Trust Fund
requires it; and to represent the Trust Fund in all suits or legal proceedings
in any court of law or equity or before any other body or tribunal.


 


(d)                                 The Trustee
shall cause any Life Insurance Policies or assets of the Trust Fund to be
registered in its name as Trustee and shall be authorized to exercise any and
all ownership rights regarding these assets, subject to the terms of the Plan.


 


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(e)                                  The Trustee
may temporarily hold cash balances and shall be entitled to deposit any funds
received in a bank account in the name of the Trust Fund in any bank selected
by the Trustee, including the banking department of a corporate Trustee, if
any, pending disposition of such funds in accordance with the Plan.  Any such deposit may be made with or without
interest.


 


(f)                                    The Trustee
shall pay the premiums and other charges due and payable at any time on any
Life Insurance Policies as it may be directed, by the Plan Administrator,
provided funds for such payments are then available in the Trust.  The Trustee shall be responsible only for
such funds and Life Insurance Policies as shall actually be received by it as
Trustee hereunder, and shall have no obligation to make payments other than
from such funds and cash values of Life Insurance Policies.


 


(g)                                 If the
whole or any part of the Trust Fund shall become liable for the payment of any
estate, inheritance, income or other tax which the Trustee shall be required to
pay, the Trustee shall have full power and authority to pay such tax out of any
monies or other property in its hands for the account of the person whose
interest hereunder is so liable.  Prior
to making any payment, the Trustee may require such releases or other Documents
from any lawful taxing authority as it shall deem necessary.  The Trustee shall not be liable for any
nonpayment of tax when it distributes an interest hereunder on instructions
from the Plan Administrator.


 


(h)                                 The Trustee
shall keep a full, accurate and detailed record of all transactions of the
Trust which the Employer and the Plan Administrator shall have the right to
examine at any time during the Trustee’s regular business hours.  As of the close of each Plan Year, the
Trustee shall furnish the Plan Administrator with a statement of account
setting forth all receipts, disbursements and other transactions effected by
the Trustee during the year.  The Plan
Administrator shall promptly notify the Trustee in writing of his approval or
disapproval of the account.  The Plan Administrator’s
failure to disapprove the account within sixty (60) days after receipt shall be
considered an approval.


 


91
















 


Except as otherwise required by law, the
approval by the Plan Administrator shall be binding as to all matters embraced
in any statement to the same extent as if the account of the Trustee had been
settled by judgment or decree of a court of competent jurisdiction under which
the Trustee, Employer and all persons having or claiming any interest in the
Trust Fund were parties; provided, however, that the Trustee may have its
account judicially settled if it so desires.


 


(i)                                     The Trustee
is hereby authorized to execute all necessary receipts and releases to any
parties concerned; and shall be under a duty, upon being advised by the Plan
Administrator that the proceeds of any Life Insurance Policies are payable, to
give reasonable assistance to the Beneficiary designated therein in collecting
such sums as may appear to be due.


 


(j)                                     If, at any
time, as the result of the death of the Participant there shall be a dispute as
to the person to whom payment or delivery of monies or property should be made
by the Trustee, or regarding any action to be taken by the Trustee, the Trustee
may postpone such payment, delivery or action, retaining the funds or property
involved, until such dispute shall have been resolved in a court of competent
jurisdiction or the Trustee shall have been indemnified to its satisfaction or
until it has received written direction from the Plan Administrator.


 


(k)                                  Anything in
this instrument to the contrary notwithstanding, the Trustee shall have no duty
or responsibility with respect to the determination of matters pertaining to
the eligibility of any Employee to become or remain a Participant hereunder,
the amount of benefit to which any Participant or Beneficiary shall be entitled
hereunder, or the size and type of any Life Insurance Policy to be purchased
from any Insurer for any Participant hereunder; all such responsibilities being
vested in the Plan Administrator.


 


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3.5.6                                                                        TRUSTEE
INDEMNIFICATION.  The Employer shall
indemnify and hold harmless the Trustee for and from the assertion or
occurrence of any liability to a Participant or Beneficiary for any action
taken or omitted by the Trustee pursuant to any written direction to the
Trustee from the Employer or the Plan Administrator.  Such indemnification obligation of the
Employer shall not be applicable to the extent that any such liability is
covered by insurance.


 


3.5.7                                                                        CHANGES
IN TRUSTEE AUTHORITY.  If a successor
Trustee is appointed, neither an Insurer nor any other person who has
previously had dealings with the Trustee shall be chargeable with knowledge of
such appointment or such change until furnished with notice thereof.  Until such notice, the Insurer and any other
such party shall be fully protected in relying on any action taken or signature
presented which would have been proper in accordance with that information
previously received.


 


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ARTICLE VI


 


TRUST
ASSETS


 


3.6.1                                                                        TRUSTEE
EXCLUSIVE OWNER.  All assets held by the
Trustee, whether in the Trust Fund or Segregated Funds, shall be owned
exclusively by the Trustee and no Participant or Beneficiary shall have any
individual ownership thereof.  Participants
and their Beneficiaries shall share in the assets of the Trust, its net
earnings, profits and losses, only as provided in this Plan.


 


3.6.2                                                                        INVESTMENTS.
The Trustee shall invest and reinvest the Trust Fund without distinction
between income or principal in one or more of the following ways as the Trustee
shall from time to time determine:


 


(a)                                  The Trustee
may invest the Trust Fund or any portion thereof in obligations issued or
guaranteed by the United States of America or of any instrumentalities thereof,
or in other bonds, notes, debentures, mortgages, preferred or common stocks,
options to buy or sell stocks or other securities, mutual fund shares, limited
partnership interests, commodities, or in such other property, real or
personal, as the Trustee shall determine.


 


(b)                                 The Trustee
may cause the Trust Fund or any portion thereof to be invested in a common
trust fund established and maintained by a national bank or other for the
collective investment of fiduciary funds even though the bank is acting as the
Trustee or Investment Manager, providing such common trust fund is a qualified
trust under the applicable section of the Code, or corresponding
provisions of future federal internal revenue laws and is exempt from income
tax under the applicable section of the Code.  In the event any assets of the Trust Fund are
invested in such a common trust fund, the Declaration of Trust creating such
common trust fund, as it may be amended from time to time, shall be
incorporated into this Plan by reference and made a part hereof.


 


(c)                                  The Trustee
may deposit any portion of the Trust Fund in savings accounts in federally
insured banks or savings and loan associations or invest in certificates of
deposit issued by any such bank or savings and loan association.


 


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The Trustee may, without liability for
interest, retain any portion of the Trust Fund in cash balances pending
investment thereof or payment of expenses.


 


(d)                                 The Trustee
may buy and sell put and call options, covered or uncovered, engage in spreads,
straddles, ratio writing and other forms of options trading, including sales of
options against convertible bonds, and sales of Standard & Poor futures
contracts, and trade in and maintain a brokerage account on a cash or margin
basis. 


 


(e)                                  The Trustee
may invest any portion or all of the assets of the Trust Fund which are
attributable to the vested and nonforfeitable interest in the Accounts of a
Participant in the purchase of group or individual Life Insurance Policies
issued on the life of and for the benefit of the Participant with the consent
of the Participant, subject to the following conditions:


 


(i)                                     The
aggregate premiums paid for ordinary whole Life Insurance Policies with both
nondecreasing death benefits and nonincreasing premiums on the life of any
Participant shall not at any time exceed forty-nine percent (49%) of the
aggregate amount of Employer contributions which have been allocated to the
Accounts of such Participant.


 


(ii)                                  The
aggregate Premiums paid for Life Insurance Policies on the life of any
Participant which are either term, universal or any other Contracts which are
not ordinary whole life policies shall not at any time exceed twenty-five
percent (25%) of the aggregate amount of Employer contributions which have been
allocated to the Accounts of such Participant.


 


(iii)                               The sum of
one-half of the aggregate premiums for ordinary whole Life Insurance Policies
and all premiums for other Life Insurance Policies shall not at any time exceed
twenty-five percent (25%) of the aggregate amount of Employer contributions
which have been allocated to the Accounts of such Participant.


 


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(iv)                              If the Plan
permits distributions to a Participant prior to his termination of employment
in accordance with Section 2.5.5 and the Plan does not take into account
contributions to provide Social Security Benefits in the allocation of Employer
contributions, the amount which may be distributed to the Participant may be
applied to the purchase of Life Insurance Policies.


 


(f)                                    The Trustee
may invest the Trust Fund or any portion thereof to acquire or hold Qualifying
Employer Securities or Real Property, provided that the portion so invested
shall not exceed the amount allowed as an investment under the Act.


 


3.6.3                                                                        ADMINISTRATION
OF TRUST ASSETS.  Subject to the
limitations herein expressly set forth, the Trustee shall have the following
powers and authority in connection with the administration of the assets of the
Trust:


 


(a)                                  To hold and
administer all contributions made by the Employer to the Trust Fund and all
income or other property derived therefrom as a single Trust Fund, except as
otherwise provided in the Plan.


 


(b)                                 To manage,
control, sell, convey, exchange, petition, divide, subdivide, improve, repair,
grant options, sell upon deferred payments, lease without limit as determined
for any purpose, compromise, arbitrate or otherwise settle claims in favor of
or against the Trust Fund, institute, compromise and defend actions and
proceedings, and to take any other action necessary or desirable in connection
with the administration of the Trust Fund.


 


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(c)                                  To vote any
stock, bonds, or other securities of any corporation or other issuer; otherwise
consent to or request any action on the part of any such corporation or other
issuer; to give general or special proxies or powers of attorney, with or
without power of substitution; to participate in any reorganization,
recapitalization, consolidation, merger or similar transaction with respect to
such securities; to deposit such stocks or other securities in any voting
trusts, or with any protective or like committee, or with the trustee, or with
the depositories designated thereby; to exercise any subscription rights and
conversion privileges or other options and to make any payments incidental
thereto; and generally to do all such acts, execute all such instruments, take
all such proceedings and exercise all such rights, powers and privileges with
respect to the stock or other securities or property constituting the Trust
Fund as if the Trustee were the absolute owner thereof.


 


(d)                                 To apply
for and procure, at the election of any Participant, Life Insurance Policies on
the life of the Participant; to exercise whatever rights and privileges may be
granted to the Trustee under such Policies, and to cash in, receive and collect
such Policies or the proceeds therefrom as and when entitled to do so under the
provisions thereof;


 


(e)                                  To make,
execute, acknowledge and deliver any and all Documents of transfer and
conveyance and any and all other instruments that may be necessary or
appropriate to carry out the powers herein granted;


 


(f)                                    To register
any investment held in the Trust in the Trustee’s own name or in the name of a
nominee and to hold any investment in bearer form, but the books and records of
the Trustee shall at all times show that all such investments are part of the
Trust;


 


(g)                                 To borrow
money for the purposes of the Plan in such amounts and upon such terms and
conditions as the Trustee deems appropriate;


 


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(h)                                 To
commingle the assets of the Trust Fund with the assets of other similar trusts
which are exempt from income tax, whether sponsored by the Employer, an
affiliate of the Employer or an unrelated employer, provided that the books and
records of the Trustee shall at all times show the portion of the commingled
assets which are part of the Trust; and


 


(i)                                     To do all
acts whether or not expressly authorized which the, Trustee may deem necessary
or proper for the protection of, the property held hereunder. 


 


3.6.4                                                                        SEGREGATED
FUNDS.  Unless otherwise determined by
the Trustee to be prudent, the Trustee shall invest and reinvest each
Segregated Fund without distinction between income or principal in one or more
appropriately identified interest-bearing accounts or certificates of deposit
in the name of the Trustee and subject solely to the dominion of the Trustee in
a banking institution (which may or may not be the Trustee, if the Trustee is a
banking institution) or savings and loan association.  Any such account or certificate shall bear
interest at a rate not less than the rate of interest currently being paid upon
regular savings accounts by that banking corporation principally situated in
the community in which the Employer has its principal business location, which
has capital, surplus and undivided profits exceeding those of any other bank so
situated.  Such accounts shall be held
for the benefit of the Participant for whom such Segregated Fund is established
in accordance with the terms of the Plan and the Segregated Account of the
Participant shall be credited with any interest earned in connection with such
accounts.  If the Trustee determines that
an alternative investment is appropriate, the Trustee may invest the Segregated
Fund in any manner permitted with respect to the Trust Fund and such Segregated
Fund shall be credited with the net income or loss or net appreciation or
depreciation in value of such investments. 
No Segregated Fund shall share in any Employer contributions or
forfeitures, any net income or loss from, or net appreciation or depreciation
in value of, any investments of the Trust Fund, or any allocation for which
provision is made in this Plan which is not specifically attributable to the
Segregated Fund.


 


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3.6.5                                                                        INVESTMENT
CONTROL OPTION.  Participant may elect to
have transferred to a Segregated Fund and exercise investment control with
respect to funds in the Trust Fund which do not exceed the balances in his
Accounts.


 


To the extent that the balance in the
Participant’s Account with respect to which a transfer is to be made includes his
share of an Employer contribution which has not been received by the Trustee,
such transfer shall not be made until such contribution is received by the
Trustee.  In addition to the foregoing
election, each Participant who has a Segregated Fund may elect to exercise
investment control over any portion or all of such Segregated Fund. Funds so
transferred to a Segregated Fund on behalf of the Participant shall be
thereafter invested by the Trustee in such bonds, notes, debentures,
commodities, mortgages, mutual funds, equipment trust certificates, investment
trust certificates, preferred or common stocks, partnership interests, life
insurance policies, including universal life insurance policies, or in such
other property, real or personal (other than collectibles), wherever situated,
as the Participant shall direct from time to time in writing; provided,
however, that the Participant may not direct the Trustee to make loans to
himself, nor to make loans to the Employer; and provided further that the Trustee
may limit the investment alternatives available to the Participant in a uniform
and nondiscriminatory manner but taking into account whether the interest of
the Participant is fully vested and nonforfeitable.  Any such election shall be made by the Participant
giving notice thereof to the Trustee notice as the Trustee deems necessary and
such notice shall specify the amount of such funds to be transferred and the
Account from which the transfer is to be made. 
Any such election with respect to a Segregated Fund shall be made by the
Participant giving the Trustee notice as the Trustee deems necessary and such
notice shall specify the date the transfer is to take place and the amount of
funds to be transferred.  Any such
election shall be at the absolute discretion of the Individual Participant and
shall be binding upon the Trustee.  Upon
any such election being made, the amount of such funds to be transferred shall
be deducted from his Account as appropriate and added to a Controlled Account
of the Participant.


 


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All dividends and interest thereafter
received with respect to such transferred funds, as well as any appreciation or
depreciation in his investments, shall be added to or deducted from his
Controlled Account.  If a Participant
wishes to make such an election to transfer funds from the Trust Fund to a
Segregated Fund as of a date other than a Valuation Date, the Trustee may defer
such transfer until the next succeeding Valuation Date or, in the Trustee’s
discretion, make such transfer, provided that the Trustee determines that the
nature of the assets in the Trust Fund is such that it is feasible and
practical to make, as of the date of such transfer, the adjustments to
Participants’ Accounts for which provision is made in the Plan, as if such date
is a Valuation Date.


 


The Trustee shall not have any investment
responsibility with respect to a Participant’s Segregated Fund over which he
exercises investment control.  In the
event that a Participant elects to have any such funds transferred to a
Segregated Fund and invested in particular securities or assets pursuant to
this Section, the Trustee shall not be liable for any loss or damage resulting
from the investment decision of the Participant.  As of any Valuation Date, the Participant may
elect to have all or any portion of any cash contained in his Segregated Fund
transferred back to the Trust Fund, in which case such cash shall be invested
by the Trustee together with other assets held in the Trust Fund.  Any such election shall be made by giving
notice thereof to the Trustee as the Trustee deems necessary, and the notice
shall specify the amount of cash to be transferred.


 


As of the said Valuation Date, the amount
of such funds to be so transferred which is attributable to the balance in the
Participant’s Controlled Account shall be deducted from such Account and added
to the appropriate Account of the Participant.


 


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ARTICLE VII


 


LOANS


 


3.7.1                                                                        AUTHORIZATION.  If the employer elects to permit loans to
Participants or Beneficiaries, the Plan Administrator shall establish a
participant loan program in compliance with Labor Regulation S2550.408b. The
terms of such participant loan program shall be in writing and shall constitute
part of the Plan.  Such terms shall
include:


 


(a)                                  The
identity of the person or positions authorized to administer the participant
loan program;


 


(b)                                 A procedure
for applying for loans;


 


(c)                                  The basis
on which loans will be approved or denied;


 


(d)                                 Limitations
(if any) on the types and amounts of loans offered;


 


(e)                                  The
procedure under the program for determining a reasonable rate of interest;


 


(f)                                    The types
of collateral which may secure a participant loan; and


 


(g)                                 The events
constituting default and the steps that will be taken to preserve plan assets
in the event of default.


 


3.7.2                                                                        SPOUSAL
CONSENT.  A Participant must obtain the
written consent of his spouse, if any, to the use of the Participant’s interest
in the Plan as security for the loan within ninety (90) days before the date on
which the loan is to be so secured.  A
new consent must be obtained whenever the amount of the loan is increased or if
the loan is renegotiated, extended, renewed or otherwise revised.  The form of the consent must acknowledge the
effect of such consent and be witnessed by a Plan representative or a notary
public but shall be deemed to meet any such requirements relating to the
consent of any subsequent spouse.  Such
consent shall thereafter be binding with respect to the consenting spouse or
any subsequent spouse with respect to that loan.


 


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If a valid spousal consent has been
obtained, then notwithstanding any other provision of the Plan, the portion of
the Participant’s vested Account balance used as a security interest held by
the Plan by reason of a loan outstanding to the Participant shall be taken into
account for purposes of determining the amount of the Account balance payable
at the time of death or distribution but only if the reduction is used as
repayment of the loan.  If less than the
entire amount of the Participant’s vested Account balance (determined without
regard to the preceding sentence) is payable to the surviving spouse, the Account
balance shall be adjusted by first reducing the vested Account balance by the
amount of the security used as repayment of the loan and then determining the
benefit payable to the surviving spouse.


 


3.7.3                                                                        LIMITATIONS.  Except to the extent provided in the
participant loan program, in no event shall the amount loaned to any
Participant or Beneficiary exceed the lesser of (a) fifty thousand dollars
($50,000) (reduced by the excess of the highest outstanding balance of loans
from the Plan) during the one year period ending on the day before the date on
which the loan was made over the outstanding balance of loans from the Plan on
the date on which such loan was made) or (b) one-half of the sum of the vested
and nonforfeitable interest in his Accounts, determined as of the Valuation
Date coinciding with or immediately preceding such loan.  For the purposes hereof, all loans from all
plans of the Employer and other members of a group of employers described in
Sections 414(b), (c) and (m) of the Code shall be aggregated.  All loans must be adequately secured and bear
a reasonable interest rate.  In the event
of a default foreclosure on the note evidencing the loan and attachment of the
security shall not occur until a distributable event occurs.


 


3.7.4                                                                        AVAILABILITY.  Loans, if any, must be available to all
Participants and Beneficiaries without regard to any individual’s race, color,
religion, sex, age or national origin. 
Loans shall be made available to all Participants and Beneficiaries and
loans shall not be made available to Highly Compensated Employees in an amount
greater than the amount made available to other employees.


 


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3.7.5                                                                        PROHIBITIONS.
A loan shall not be made to a five (5%) percent or greater shareholder-employee
of an S corporation, an owner of more than ten (10%) percent of either the
capital interest or the profits interest of an unincorporated Employer, a
family member (as defined in Section 267(c)(4) of the Code) of such
persons, or a corporation controlled by such persons through the ownership,
directly or indirectly, of fifty (50%) percent or more of the total voting
power or value of all shares of all classes of stock of the corporation, unless
an exemption for the loan is obtained pursuant to Section 408 of the Act.


 


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ARTICLE VIII


 


BENEFICIARIES


 


3.8.1                                                                        DESIGNATION
OF BENEFICIARIES.  Each Participant shall
have the right to designate a Beneficiary or Beneficiaries and contingent or
successive Beneficiaries to receive any benefits provided by this Plan which
become payable upon the Participant’s death. 
The Beneficiaries may be changed at any time or times by the filing of a
new designation with the Plan Administrator, and the most recent designation
shall govern. Notwithstanding the foregoing and subject to the provisions of
Section 2.5.2, the designated Beneficiary shall be the surviving spouse of
the Participant, unless such surviving spouse consents in writing to an
alternate designation and the terms of such consent acknowledge the effect of
such alternate designation and the consent is witnessed by a representative of
the Plan or by a notary public.  A spouse
may not revoke the consent without the approval of the Participant.  The designation of a Beneficiary other than
the spouse of the Participant or a form of benefits with the consent of such
spouse may not be changed without the consent of such spouse and any consent
must acknowledge the specific non-spouse Beneficiary, including any class of
Beneficiaries or any contingent Beneficiaries.


 


3.8.2                                                                        ABSENCE
OR DEATH OF BENEFICIARIES.  Except with
respect to the process of life insurance payable upon the death of the
Participant, if a Participant dies without having a beneficiary designation
then in force, or if all of the Beneficiaries designated by a Participant
predecease him, his Beneficiary shall be his surviving spouse, or if none, his
surviving children, equally, or if none, such other heirs, or the executor or
administrator of his estate, as the Plan Administrator shall select.


 


If a Participant dies survived by
Beneficiaries designated by him and if all such surviving Beneficiaries
thereafter dies before complete distribution of such deceased Participant’s
interest, the estate of the last of such designated Beneficiaries to survive
shall be deemed to be the Beneficiary of the undistributed portion of such
interest.


 


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ARTICLE IX


 


CLAIMS


 


3.9.1                                                                        CLAIM
PROCEDURE.  Any Participant or Beneficiary
who is entitled to a payment of a benefit for which provision is made in this
Plan shall file a written claim with the Plan Administrator on such forms as
shall be furnished to him by the Plan Administrator and shall furnish such
evidence of entitlement to benefits as the Plan Administrator may reasonably
require.  The Plan Administrator shall
notify the Participant or Beneficiary in writing as to the amount of benefit to
which he is entitled, the duration of such benefit, the time the benefit is to
commence and other pertinent information concerning his benefit.  If a claim for benefit is denied by the Plan
Administrator, in whole or in part, the Plan Administrator shall provide
adequate notice in writing to the Participant or Beneficiary whose claim for
benefit has been denied within ninety (90) days after receipt of the claim
unless special circumstances require an extension of time for processing the
claim.  If such an extension of time for
processing is required, written notice indicating the special circumstances and
the date by which a final decision is expected to be rendered shall be
furnished to the Participant or Beneficiary. 
In no event shall the period of extension exceed one hundred eighty
(180) days after receipt of the claim. 
The notice of denial of the claim shall set forth (a) the specific
reason or reasons for the denial; (b) specific reference to pertinent Plan
provisions on which the denial is based; (c) a description of any additional
material or information necessary for the claimant to perfect the claim and an
explanation of why such material or information is necessary; and (d) a
statement that any appeal of the denial must be made by giving to the Plan
Administrator, within sixty (60) days after receipt of the notice of the denial,
written notice of such appeal, such notice to include a full description of the
pertinent issues and basis of the claim. The Participant or Beneficiary (or his
duly authorized representative) may review pertinent Documents and submit
issues and comments in writing to the Plan Administrator.  If the Participant or Beneficiary fails to
appeal such action to the Plan Administrator in writing within the prescribed
period of time, the Plan Administrator’s adverse determination shall be final,
binding and conclusive.


 


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3.9.2                                                                        APPEAL.  If the Plan Administrator receives from a
Participant or a Beneficiary, within the prescribed period of time, a notice of
an appeal of the denial of a claim for benefit, such notice and all relevant
materials shall immediately be submitted to the Employer.  The Employer may hold a hearing or otherwise
ascertain such facts as it deems necessary and shall render a decision which
shall be binding upon both parties.  The
decision of the Employer shall be made within sixty (60) days after the receipt
by the Plan Administrator of the notice of appeal, unless special circumstances
require an extension of time for processing, in which case a decision of the
Employer shall be rendered as soon as possible but not later than one hundred
twenty (120) days after receipt of the request for review.  If such an extension of time is required,
written notice of the extension shall be furnished to the claimant prior to the
commencement of the extension.  The
decision of the Employer shall be in writing, shall include specific reasons
for the decision, written in a manner calculated to be understood by the
claimant, as well as specific references to the pertinent Plan provisions on
which the decision is based and shall be promptly furnished to the claimant.


 


106
















 


ARTICLE X


 


AMENDMENT
AND TERMINATION


 


3.10.1                                                                  RIGHT
TO AMEND.  The Employer may at any time
or times amend the Plan and Trust, in whole or in part.  The Employer specifically reserves the right
to amend the Plan retroactively.


 


3.10.2                                                                  MANNER
OF AMENDING.  Each amendment of this Plan
shall be made by delivery to the Trustee of a copy of the resolution of the
Employer which sets forth such amendment.


 


3.10.3                                                                  LIMITATIONS
ON AMENDMENTS.  No amendment shall be
made to this Plan which shall:


 


(a)                                  Directly
or indirectly operate to give the Employer any interest whatsoever in the
assets of the Trust or to deprive any Participant or Beneficiary of his vested
and nonforfeitable interest in the assets of the Trust as then constituted, or
cause any part of the income or corpus of the Trust to be used for, or diverted
to purposes other than the exclusive benefit of Employees or their
Beneficiaries;


 


(b)                                 Increase
the duties or liabilities of the Trustee without the Trustee’s prior written
consent;


 


(c)                                  Change the
vesting schedule under the Plan if the nonforfeitable percentage of the
accrued benefit derived from Employer contributions (determined as of the later
of the date such amendment is adopted or the date such amendment becomes
effective) of any Participant is less than such nonforfeitable percentage
computed without regard to such amendment; or


 


(d)                                 Reduce the
accrued benefit of a Participant within the meaning of Section 411(d)(6)
of the Code, except to the extent permitted under Section 412(c)(8) of the
Code.  An amendment which has the effect
of decreasing a Participant’s account balance or eliminating an optional form
of benefit with respect to benefits attributable to service before the
amendment shall be treated as reducing an accrued benefit.


 


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If a Plan amendment changes the vesting
schedule or the Plan is amended in any way that directly or indirectly
affects the computation of the Participant’s nonforfeitable percentage, each
Participant who has completed three (3) or, in the case of Participants who do
not have at least one (1) Hour of Service in any Plan Year beginning after
1988, five (5) or more Years of Service may elect within a reasonable period
after the adoption of such amendment to have his nonforfeitable percentage
computed without regard to such amendment or change.  The period during which the election may be
made shall commence with the date the amendment is adopted or deemed to be made
and shall end on the latest of sixty (60) days after:


 


(i)                                     the
amendment is adopted;


 


(ii)                                  the
amendment becomes effective; or


 


(iii)                               the
Participant is issued written notice of the amendment by the Employer or Plan
Administrator.


 


3.10.4                                                                  VOLUNTARY
TERMINATION.  The Employer may terminate
the Plan at any time by delivering to the Trustee an instrument in writing
which designates such termination. 
Following termination of the Plan, the Trust will continue until the
Distributable Benefit of each Participant has been distributed.


 


3.10.5                                                                  INVOLUNTARY
TERMINATION.  The Plan shall terminate if
(a) the Employer is dissolved or adjudicated bankrupt or insolvent in
appropriate proceedings, or if a general assignment is made by the Employer for
the benefit of creditors, or (b) the Employer loses its identity by
consolidation or merger into one or more corporations or organizations, unless
within ninety (90) days after such consolidation or merger, such corporations
or organizations elect to continue the Plan.


 


3.10.6                                                                  WITHDRAWAL
BY EMPLOYER.  The Employer may withdraw
from participation under the Plan without terminating the Trust upon making a
transfer of the Trust assets to another Plan which shall be deemed to constitute
an amendment in its entirety of the Trust.


 


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3.10.7                                                                  POWERS
PENDING FINAL DISTRIBUTION.  Until final
distribute on of the assets of the Trust, the Plan Administrator and Trustee
shall continue to have all the powers provided under this Plan as are necessary
for the orderly administration, liquidation and distribution of the assets of
the Trust.


 


3.10.8                                                                  DELEGATION.  Each Affiliate Employer expressly delegates
authority to the Employer the right to amend any part of the Plan on its
behalf. The Employer shall submit a copy of the amendment to each Affiliate
Employer who has adopted the Plan.  An
Affiliate Employer may revoke the authority of the Employer to amend the Plan
on its behalf by written notice to the Employer of such revocation.


 


109
















 


ARTICLE XI


 


PORTABILITY


 


3.11.1                                                                  CONTINUANCE
BY SUCCESSOR.  In the event of the
dissolution, consolidation or merger of the Employer, or the sale by the
Employer of its assets, the resulting successor person or persons, firm or
corporations may continue this Plan by (a) adopting the Plan by appropriate
resolution; (b) appointing a new Trustee as though the Trustee (including all
members of a group of individuals acting as Trustee) had resigned; and (c)
executing a proper agreement with the new Trustee.  In such event, each Participant in this Plan
shall have an interest in the Plan after the dissolution, consolidation,
merger, or sale of assets, at least equal to the interest which he had in the
Plan immediately before the dissolution, consolidation, merger or sale of
assets. Any Participants who do not accept a position with such successor
within a reasonable time shall be deemed to be terminated.  If, within ninety (90) days from the
effective date of such dissolution, consolidation, merger, or sale of assets,
such successor does not adopt this Plan, as provided herein, the Plan shall
automatically be terminated and deemed to be an involuntary termination.


 


3.11.2                                                                  MERGER
WITH OTHER PLAN.  In the event of the
merger or consolidation with, or transfer of assets or liabilities to, any
other deferred compensation plan and trust, each Participant shall have an
interest in such other plan which is equal to or greater than the interest
which he had in this Plan immediately before such merger, consolidation or
transfer, and if such other plan thereafter terminates, each Participant shall
be entitled to a Distributable Benefit which is equal to or greater than the
Distributable Benefit to which he would have been entitled immediately before
such merger, consolidation or transfer if this Plan had then been terminated.


 


110
















 


3.11.3                                                                  TRANSFER
FROM OTHER PLANS.  The Employer may cause
all or any of the assets held in connection with any other plan or trust which
is maintained by the Employer for the benefit of its employees and satisfies
the applicable requirements of the Code relating to qualified plans and trusts
to be transferred to the Trustee, whether such transfer is made pursuant to a
merger or consolidation of this Plan with such other plan or trust or for any
other allowable purpose.


 


In addition, the Employer, may permit
rollover to the Trustee of assets held for the benefit of an Employee in a
conduit Individual Retirement Account, a terminated plan of the Employer, or
any other plan or trust which is maintained by some other employer for the
benefit of its employees and satisfies the applicable requirements of the Code
relating to qualified plans and trusts even if the employee has not satisfied
the conditions for participation in the Plan. Any such assets so transferred to
the Trustee shall be accompanied by written instructions from the employer, or
the trustee, custodian or individual holding such assets, setting forth the
name of each Employee for whose benefit such assets have been transferred and
showing separately the respective contributions by the employer and by the
Employee and the current value of the assets attributable thereto.  Upon receipt by the Trustee of such assets,
the Trustee shall place such assets in a Segregated Fund for the Participant
and the Employee shall be deemed to be one hundred percent (100%) vested and
have a nonforfeitable interest in any such assets.  Notwithstanding any provisions herein to the
contrary, unless the Plan provides a life annuity distribution option or the
Participant and his spouse have signed a written waiver of their rights to the
annuity options in a form which satisfies the waiver requirements of
Section 417 of the Code, the Plan shall not be a direct or indirect
transferee of a defined benefit pension plan, money purchase pension plan,
target benefit pension plan, stock bonus or profit sharing plan which is
subject to the survivor annuity requirements of Section 401(a)(11) and
Section 417 of the Code.


 


111
















 


3.11.4                                                                  TRANSFER
TO OTHER PLANS.  The Trustee, upon
written direction by the Employer, shall transfer some or all of the assets
held under the Trust to another plan or trust of the Employer meeting the
requirements of the Code relating to qualified plans and trusts, whether such
transfer is made pursuant to a merger or consolidation of this Plan with such
other plan or trust or for any other allowable purpose.  In addition, upon the termination of
employment of any Participant and receipt by the Plan Administrator of a
request in writing, the Participant may request that any distribution from the
Trust to which he is entitled shall be transferred to an Individual Retirement
Account, an Individual Retirement Annuity, or any other plan or trust which is
maintained by some other employer for the benefit of its employees and
satisfies the applicable requirements of the Code relating to qualified plans
and trusts.  Upon receipt of any such
written request, the Plan Administrator shall cause the Trustee to transfer the
assets so directed and, as appropriate, shall direct the Insurer to transfer to
the new trustee any applicable insurance policies issued by it.


 


112
















 


ARTICLE XII


 


MISCELLANEOUS


 


3.12.1                                                                  NO
REVERSION TO EMPLOYER.  Except as
specifically provided in the Plan, no part of the corpus or income of the Trust
shall revert to the Employer or be used for, or diverted to purposes other than
for the exclusive benefit of Participants and their Beneficiaries.


 


3.12.2                                                                  EMPLOYEE
ACTIONS.  Any action by the Employer
pursuant to the provisions of the Plan shall be evidenced by appropriate resolution
or by written instrument executed by any person authorized by the Employer to
take such action.


 


3.12.3                                                                  EXECUTION
OF RECEIPTS AND RELEASES.  Any payment to
any person eligible to receive benefits under this Plan, in accordance with the
provisions of the Plan, shall, to the extent thereof, be in full satisfaction
of all claims hereunder.  The Plan
Administrator may require such person, as a condition precedent to such
payment, to execute a receipt and release therefore in such form as he shall
determine.


 


3.12.4                                                                  RIGHTS
OF PARTICIPANTS LIMITED.  Neither the
creation of this Plan and Trust nor anything contained in this Plan shall be
construed as giving any Participant, Beneficiary or Employee any equity or
other interest in the assets, business or affairs of the Employer, or the right
to complain about any action taken by or about any policy adopted or pursued
by, the Employer, or as giving any Employee the right to be retained in the
service of the Employer; and all Employees shall remain subject to discharge to
the same extent as if the Plan had never been executed.  Prior to the time that distributions are made
in conformity with the provisions of the Plan, neither the Participants, nor
their spouses, Beneficiaries, heirs-at-law, or legal representatives shall
receive or be entitled to receive cash or any other thing of current
exchangeable value, from either the Employer or the Trustee as a result of the
Plan or the Trust.


 


113
















 


3.12.5                                                                  PERSONS
DEALING WITH TRUSTEE PROTECTED.  No
person dealing with the Trustee shall be required or entitled to see to the
application of any money paid or property delivered to the Trustee, or
determine whether or not the Trustee is acting pursuant to the authorities
granted to the Trustee hereunder or to authorizations or directions herein
required.  The certificate of the Trustee
that the Trustee is acting in accordance with the Plan shall protect any person
relying thereon.


 


3.12.6                                                                  PROTECTION
OF THE INSURER.  An Insurer shall not be
responsible for the validity of the Plan or Trust and shall have no
responsibility for action taken or not taken by the Trustee, for determining
the propriety of accepting premium payments or other contributions, for making
payments in accordance with the direction of the Trustee, or for the
application of such payments.  The
Insurer shall be fully protected in dealing with any representative of the
Employer or any one of a group of individuals acting as Trustee.  Until written notice of a change of Trustee
has been received by an Insurer at its home office, the Insurer shall be fully
protected in dealing with any party acting as Trustee according to the latest
information received by the Insurer at its home office.


 


3.12.7                                                                  NO
RESPONSIBILITY FOR ACT OF INSURER. 
Neither the Employer, the Plan Administrator nor the Trustee shall be
responsible for any of the following, nor shall they be liable for instituting
action in connection with:


 


(a)                                  The
validity of policies or policy provisions;


 


(b)                                 Failure or
refusal by the Insurer to provide benefits under a policy;


 


(c)                                  An act by a
person which may render a policy invalid or unenforceable; or


 


(d)                                 Inability
to perform or delay in performing an act, which inability or delay is
occasioned by a provision of a policy or a restriction imposed by the Insurer.


 


114
















 


3.12.8                                                                  INALIENABILITY.  The right of any Participant or his
Beneficiary in any distribution hereunder or to any separate Account shall not
be subject to alienation, assignment or transfer, voluntarily or involuntarily,
by operation of law or otherwise, except as may be expressly permitted herein.
No Participant shall assign, transfer, or dispose of such right nor shall any
such right be subjected to attachment, execution, garnishment, sequestration,
or other legal, equitable, or other process. 
The preceding shall also apply to the creation, assignment, or
recognition of a right to any benefit payable with respect to a Participant
pursuant to a domestic relations order, unless such order is determined to be a
qualified domestic relations order, as defined in Section 414(p) of the
Code, or any domestic relations order entered before January 1, 1985.


 


In the event a Participant’s benefits are
attached by order of any court, the Plan Administrator may bring an action for
a declaratory judgment in a court of competent jurisdiction to determine the
proper recipient of the benefits to be paid by the Plan.  During the pendency of the action, the Plan
Administrator shall cause any benefits payable to be paid to the court for
distribution by the court as it considers appropriate.


 


3.12.9                                                                  DOMESTIC
RELATIONS ORDERS.  The Plan Administrator
shall adhere to the terms of any judgment, decree or order (including approval
of a property settlement agreement) which relates to the provision of child
support, alimony payments, or marital property rights to a spouse, former
spouse, child or other dependent of a Participant and is made pursuant to a
state domestic relations law (including a community property law) and which
creates or recognizes the existence of an alternate payee’s right to, or
assigns to an alternate payee the right to, receive all or a portion of the
benefits payable with respect to a Participant.


 


115
















 


Any such domestic relations order must
clearly specify the name and last known mailing address of the Participant and
the name and mailing address of each alternate payee covered by the order, the
amount or percentage of the Participant’s benefit to be paid by the Plan to
each such alternate payee, or the manner in which such amount or percentage is
to be determined, the number of payments or period to which such order applies,
and each plan to which such order applies.


 


Any such domestic relations order shall not
require the Plan to provide any type or form of benefit, or any option not
otherwise provided under the Plan, to provide increased benefits (determined on
the basis of actuarial value) or the payment of benefits to an alternate payee
which are required to be paid to another alternate payee under another order
previously determined to be a qualified domestic relations order.  Notwithstanding the foregoing sentence, a
domestic relations order may require the payment of benefits to an alternate
payee before the Participant has separated from service on or after the date on
which the Participant attains or would have attained the earliest retirement
age under the Plan as if the Participant had retired on the date on which such
payment is to begin under such order and in any form in which such benefits may
be paid under the Plan to the Participant (other than the form of a joint and
survivor annuity with respect to the alternate payee and his or her subsequent
spouse).  The interest rate assumption
used in determining the present value shall be five (5%) percent.  For these purposes, the earliest retirement
age under the Plan means the earlier of: (a) the date on which the Participant
is entitled to a distribution under the Plan, or (b) the later of the date the
Participant attains age 50, or the earliest date on which the Participant could
begin receiving benefits under the Plan if the Participant separated from
service.


 


Distributions may be made to an alternate
payee even though the Participant may not receive a distribution because he
continues to be employed by the Employer.


 


116
















 


To the extent provided in the qualified
domestic relations order, the former spouse of a Participant shall be treated
as a surviving spouse of such Participant for purposes of Sections 401(a)(11)
and 417 of the Code (and any spouse of the Participant shall not be treated as
a spouse of the Participant for such purposes) and if married for at least one
(1) year, the surviving former spouse shall be treated as meeting the
requirements of Section 417(d) of the Code.


 


The Plan Administrator shall promptly
notify the Participant and each alternate payee pf the receipt of a domestic
relations order by the Plan and the Plan’s procedures for determining the
qualified status of domestic relations orders. 
Within a reasonable period after receipt of a domestic relations order,,
the Plan Administrator shall determine whether such order is a qualified domestic
relations order and shall notify the Participant and each alternate payee of
such determination.  If the Participant
or any affected alternate payee disagrees with the determinations of the Plan
Administrator, the disagreeing party shall be treated as a claimant and the
claims procedure of the Plan shall be followed. 
The Plan Administrator may bring an action for a declaratory judgment in
a court of competent jurisdiction to determine the proper recipient of the benefits
to be paid by the Plan.


 


During any period in which the issue of
whether a domestic relations order is a qualified domestic relations order is
being determined (by the Plan Administrator, by a court of competent
jurisdiction or otherwise), the Plan Administrator shall separately account for
the amounts which would have been payable to the alternate payee during such
period if the order had been determined to be a qualified domestic relations
order.  If, within the eighteen (18)
month period beginning on the date on which the first payment would be required
to be made under the domestic relations order, the order (or modification
thereof) is determined to be a qualified domestic relations order, the Plan
Administrator shall pay the segregated amounts, including any interest thereon,
to the person or persons entitled thereto.


 


117
















 


If within such eighteen (18) month period
it is determined that the order is not a qualified domestic relations order or
the issue as to whether such order is a qualified domestic relations order is
not resolved, then the Plan Administrator shall pay the segregated amounts,
including any interest thereon, to the person or persons who would have been
entitled to such amounts if there had been no order.  Any determination that an order is a
qualified domestic relations order which is made after the close of the
eighteen (18) month period shall be applied prospectively only.


 


3.12.10                                                            AUTHORIZATION
TO WITHHOLD TAXES.  The Trustee is
authorized in accordance with applicable law to withhold from distribution to
any payee such sums as may be necessary to cover federal and state taxes which
may be due with respect to such distributions.


 


3.12.11                                                            MISSING
PERSONS If the Trustee mails by registered or certified mail, postage prepaid,
to the last known address of a Participant or Beneficiary, a notification that
the Participant or Beneficiary is entitled to a distribution and if (a) the
notification is returned by the post office because the addressee cannot be
located at such address and if neither the Employer, the Plan Administrator nor
the Trustee shall have any knowledge of the whereabouts of such Participant or
Beneficiary within three (3) years from the date such notification was mailed,
or (b) within three (3) years after such notification was mailed to such
Participant or Beneficiary, he does not respond thereto by informing the
Trustee of his whereabouts, the ultimate disposition of the then undistributed
balance of the Distributable Benefit of such Participant or Beneficiary shall
be determined in accordance with the then applicable Federal laws, rules and
regulations.  If any portion of the
Distributable Benefit is forfeited because the Participant or Beneficiary
cannot be found, such portion shall be reinstated if a claim is made by the
Participant or Beneficiary.


 


118
















 


3.12.12                                                            NOTICES.
Any notice or direction to be given in accordance with the Plan shall be deemed
to have been effectively given if hand delivered to the recipient or sent by
certified mail, return receipt requested, to the recipient at the recipient’s
last known address.  At any time that a
group of individuals is acting as Trustee, notice to the Trustee may be given
by giving notice to any one or more of such individuals.


 


3.12.13                                                            GOVERNING
LAW.  The provisions of this Plan shall
be construed, administered and enforced in accordance with the provisions
of-the Act and, to the extent applicable, the laws of the state in which the
Employer has its principal place of business. 
All contributions to the Trust shall be deemed to take place in such
state.


 


3.12.14                                                            SEVERABILITY
OF PROVISIONS.  In the event that any
provision of this Plan shall be held to be illegal, invalid or unenforceable
for any reason, said illegality, invalidity or unenforceability shall not
affect the remaining provisions, but shall be fully severable and the Plan
shall be construed and enforced as if said illegal, invalid or unenforceable
provisions had never been inserted herein.


 


3.12.15                                                            GENDER
AND NUMBER.  Whenever appropriate, words
used in the singular shall include the plural, and the masculine gender shall
include the feminine gender.


 


3.12.16                                                            BINDING
EFFECT.  The Plan, and all actions and
decisions hereunder, shall be binding upon the heirs, executors,
administrators, successors and assigns of any and all parties hereto and
Participants, present and future.


 


3.12.17                                                            QUALIFICATION
UNDER INTERNAL REVENUE LAWS. The Employer intends that the Trust qualify under
the applicable provisions of the Code. Until advised to the contrary, the
Trustee may assume that the Trust is so qualified and is entitled to tax
exemption under the Code.


 


119
















 


ARTICLE XIII


 


EXECUTION
OF AGREEMENT


 


3.13.1                                                                  COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of which
shall be considered an original, and no other counterparts need be produced.


 


3.13.2                                                                  ACCEPTANCE
BY TRUSTEE.  The Trustee, by joining in
the execution of this Agreement, hereby signifies the Trustee’s acceptance
thereof.


 


3.13.3                                                                  EXECUTION.
To record the adoption of this Plan the Employer and each Affiliate Employer,
if any, has caused this Agreement to be executed by its duly qualified officers
and the Trustee has executed this Agreement, as of the day and year first above
written.


 


	
  Employer:

  	
  Trustee:

  
	
  Herbalife International, Inc.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  /S/ Christopher Pair 

  
	
  Christopher Pair

  	
  Christopher Pair

  
	
  Secretary

  	
  Trustee

  
	
   

  	
   

  
	
   

  	
  /S/ Timothy Gerrity

  
	
   

  	
  Timothy Gerrity

  
	
   

  	
  Trustee

  
			



 


120
















 


MODEL SECTION 401(a)(31)
AMENDMENT TO

HERBALIFE INTERNATIONAL EMPLOYEES

401(K) PROFIT SHARING PLAN AND TRUST


 


WHEREAS,
Herbalife International, Inc. (the “Employer”) currently maintains HERBALIFE
INTERNATIONAL EMPLOYEES 401(K) PROFIT SHARING PLAN AND TRUST, (the “Plan”);
and,


 


WHEREAS, the
Unemployment Compensation Amendments of 1992 added section 401(a)(31) to
the Internal Revenue Code to require a plan to permit the direct rollover of
eligible rollover distributions made after December 31, 1992; and,


 


WHEREAS, the
Internal Revenue Service issued Revenue Procedure 93-12 providing a simplified
method to amend plans using a Model Section 401(a)(31) Amendment, as set
forth below.


 


THEREFORE, the Plan is
hereby amended effective January 1, 1993 to incorporate the Model
Section 401(a)(31) Amendment as follows:


 


Section 1.                                            This
Article applies to distributions made on or after January 1,
1993.  Notwithstanding any provision of
the plan to the contrary that would otherwise limit a distributee’s election
under this Article, a distributee may elect, at the time and in the manner
prescribed by the plan administrator, to have any portion of an eligible
rollover distribution paid directly to an eligible retirement plan specified by
the distributee in a direct rollover.


 


Section 2.                                            Definitions.


 


Section 2.1.                                   Eligible
rollover distribution: An eligible rollover distribution is any distribution of
all or any portion of the balance to the credit of the distributee, except that
an eligible rollover distribution does not include: any distribution that is
one of a series of substantially equal periodic payments (not less frequently
than annually) made for the life (or life expectancy) of the distributee or the
joint lives (or joint life expectancies) of the distributee and the
distributee’s designated beneficiary, or for a specified period of ten years or
more;  any distribution to the extent
such distribution


 


121
















 


is required under section 401(a)(9) of
the Code; and the portion of any distribution that is not includible in gross
income (determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities).


 


Section 2.2.                                   Eligible
retirement plan: An eligible retirement plan is an individual retirement
account described in section 408(a) of the Code, an individual retirement
annuity described in section 408(b) of the Code, an annuity plan described
in section 403(a) of the Code, or a qualified trust described in
section 401(a) of the Code, that accepts the distributee’s eligible
rollover distribution.  However, in the
case of an eligible rollover distribution to the surviving spouse, an eligible
retirement plan is an individual retirement account or individual retirement
annuity. 


 


Section 2.3.                                   Distributee:
A distributee includes an employee or former employee.  In addition, the employee’s or former
employee’s surviving spouse and the employee’s or the former employee’s spouse
or former spouse who is the alternate payee under a qualified domestic
relations order, as defined in section 414(p) of the Code, are
distributees with regard to the interest of the spouse or former spouse.


 


Section 2.4.                                   Direct
rollover: A direct rollover is a payment by the plan to the eligible retirement
plan specified by the distributee.


 


IN WITNESS
WHEREOF, the undersigned has executed this Model Section 401(a)(31)
Amendment to the Plan on this        day of
                    ,
199  .


 


	
  For the Employer:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  
	
  WITNESS:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
				



 


122
















 


MODEL SECTION 401(a)(17)
AMENDMENT TO


HERBALIFE INTERNATIONAL EMPLOYEES


401(K) PROFIT SHARING PLAN AND TRUST


 


WHEREAS,
Herbalife International, Inc. (the “Employer”) currently maintains HERBALIFE
INTERNATIONAL EMPLOYEES 401(K) PROFIT SHARING PLAN AND TRUST, (the “Plan”);
and,


 


WHEREAS, the
Omnibus Budget Reconciliation Act of 1993 amended section 401(a)(17) of
the Internal Revenue Code to limit compensation taken into account under a plan
in any year to $150,000, as adjusted for increases in the cost of living; and,


 


WHEREAS, the
Internal Revenue Service issued Revenue Procedure 94-13 providing a simplified
method to amend plans using a Model Section 401(a)(17) Amendment, as set
forth below.


 


THEREFORE, the
Plan is hereby amended effective as of the first day of the Plan Year beginning
on or after January 1, 1994, to incorporate the Model
Section 401(a)(17) Amendment as follows:


 


SECTION 401(a)(17)
LIMITATION


 


In addition to other applicable limitations
set forth in the plan, and notwithstanding any other provision of the plan to
contrary, for plan years beginning on or after January 1, 1994, the annual
compensation of each employee taken into account under the plan shall not
exceed the OBRA ‘93 annual compensation limit. 
The OBRA ‘93 annual compensation limit is $150,000, as adjusted by the
Commissioner for increases in the cost of living in accordance with
section 401(a)(17)(B) of the Internal Revenue Code.  The cost-of-living adjustment in effect for a
calendar year applies to any period, not exceeding 12 months, over which
compensation is determined (determination period) beginning in such calendar
year.  If a determination period consist
of fewer than 12 months, the OBRA ‘93 annual compensation limit will be
multiplied by a fraction, the numerator of which is the number of months in the
determination period, and the denominator of which is 12.


 


123
















 


For plan years beginning on or after
January 1, 1994, any reference in this plan to the limitation under
section 401(a)(17) of the Code shall mean the OBRA ‘93 annual compensation
limit set forth in the provision.


 


If compensation for any prior determination
period is taken into account in determining an employee’s benefits accruing in
the current plan year, the compensation for that prior determination period is
subject to the OBRA ‘93 annual compensation limit in effect for that prior
determination period.  For this purpose,
for determination periods beginning before the first day of the first plan year
beginning on or after January 1, 1994, the OBRA ‘93 annual compensation
limit is $150,000.


 


IN WITNESS WHEREOF, the undersigned has
executed this Model Section 401 (a) (17) Amendment to the Plan on this
    day of
                      ,
199  .


 


	
   

  	
  For the Employer:

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Illegible

  	
   

  
	
   

  	
   

  
	
  WITNESS:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
					



 


124
















 


REVENUE PROCEDURE 93-47 AMENDMENT TO


HERBALIFE INTERNATIONAL EMPLOYEES


401(K) PROFIT SHARING PLAN AND TRUST


 


WHEREAS,
Herbalife International, Inc. (the “Employer”) currently maintains HERBALIFE
INTERNATIONAL EMPLOYEES 401 (K) PROFIT SHARING PLAN AND TRUST, (the “Plan”);
and,


 


WHEREAS, the
Unemployment Compensation Amendments of 1992 added section 401(a) (31) to
the Internal Revenue Code to require a plan to permit the direct rollover of
eligible rollover distributions made after December 31, 1992; and,


 


WHEREAS, the
Internal Revenue Service subsequently issued Notice 93-26 modifying the 30-day
notice requirement under section 1.411 (a) - 11 (c); and, 


 


WHEREAS, the
Internal Revenue Service issued Revenue Procedure 93-47 providing a simplified
method to amend plans using a Model Amendment, as set forth below.


 


THEREFORE, the
Plan is hereby amended effective January 1, 1993 to incorporate the
Revenue Procedure 93-47 Model Amendment as follows:


 


The following language, applicable to
distributions made on or after January 1, 1993, is hereby inserted
following the final sentence of section 2.5.2 (f) of HERBALIFE
INTERNATIONAL EMPLOYEES 401 (K) PROFIT SHARING PLAN AND TRUST, Plan and Trust.


 


“If a distribution is one to which sections
401 (a) (11) and 417 of the Internal Revenue Code do not apply, such
distribution may commence less than 30 days after the notice required under
section 1.411 (a) -11 (c) of the Income Tax Regulations is given, provided
that:


 


(1)                                  the plan
administrator clearly informs the participant that the participant has a right
to a period of at least 30 days after receiving the notice to consider the
decision of whether or not to elect a distribution (and if applicable, a
particular distribution option), and


 


(2)                                  the
participant, after receiving the notice, affirmatively elects a distribution.”


 


125
















 


IN WITNESS
WHEREOF, the undersigned has executed this Model Amendment to the Plan on this
     day of
                           ,
199 .


 


	
   

  	
  For the Employer:

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /S/ Illegible

  	
   

  
	
   

  	
   

  
	
  WITNESS:

  	
   

  
	
   

  	
   

  	
   

  
						



 


126
















 


HERBALIFE INTERNATIONAL, INC.


 


EXHIBITS


TO


ANNUAL REPORT


ON


FORM 10-K


FOR THE YEAR ENDED


 


DECEMBER 31,1995


 


HERBALIFE INTERNATIONAL, INC.


EXHIBIT INDEX 


 


	
  Exhibit
  Number

  	
   

  	
  Description

  	
   

  	
  Page No./(Footnote)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.1

  	
   

  	
  Articles of
  Incorporation

  	
   

  	
  (2)

  
	
  3.2

  	
   

  	
  Articles of Amendment
  to the Articles of Incorporation dated December 10, 1986

  	
   

  	
  (2)

  
	
  3.3

  	
   

  	
  Articles of Amendment
  to the Articles of Incorporation dated November 22, 1989

  	
   

  	
  (2)

  
	
  3.4

  	
   

  	
  Certificate of
  Determination relating to the Company’s Senior Convertible Preferred stock
  dated February 11, 1993

  	
   

  	
  (7)

  
	
  3.5

  	
   

  	
  Certificate of
  Amendment to the Articles of Incorporation dated May 14, 1993

  	
   

  	
  (7)

  
	
  3.6

  	
   

  	
  Amended and Restated
  Bylaws

  	
   

  	
  (7)

  
	
  4.1

  	
   

  	
  Form of Common Stock
  Certificate

  	
   

  	
  (7)

  
	
  10.1

  	
   

  	
  Agreement between
  Herbalife International of America, Inc. and D&F Industries, Inc. dated
  May 12, 1993

  	
   

  	
  (7)

  
	
  10.2

  	
   

  	
  Agreement between
  Herbalife International of America, Inc. and Raven Industries, Inc. dated May
  12, 1993

  	
   

  	
  (7)

  
	
  10.3

  	
   

  	
  Agreement between
  Herbalife International of America, Inc. and Dynamic Products, Inc. dated May
  12, 1993

  	
   

  	
  (7)

  
	
  10.4

  	
   

  	
  Master Lease between
  the Company and Trizec Properties, Inc. dated July 17, 1991

  	
   

  	
  (4)

  
	
  10.5

  	
   

  	
  Equipment Lease
  Agreement between the Company and Hewlett Packard dated May 21, 1992

  	
   

  	
  (5)

  
	
  10.6

  	
   

  	
  Final Judgment and
  Permanent Injunction, entered into on October, 1986 by the parties to that
  action entitled People of the State of California, et al.,v Herbalife
  International, Inc., et. al., Case No. 92767 in Superior Court of the State
  of California for the County of Santa Cruz

  	
   

  	
  (1)

  
	
  10.7

  	
   

  	
  Permitting Agreement
  between the Company and Nippon Herbalife K.K. effective July 27, 1988

  	
   

  	
  (3)

  
	
  10.8

  	
   

  	
  Exclusive License
  Agreement between the Company and Nippon Herbalife K.K. effective
  August 25, 1988

  	
   

  	
  (3)

  
	
  10.9

  	
   

  	
  First Addendum to
  Exclusive License Agreement between the Company and Nippon Herbalife K.K.
  dated April 10, 1991

  	
   

  	
  (7)

  
	
  10.10

  	
   

  	
  Second Addendum to
  Exclusive License Agreement dated between the Company and Nippon Herbalife
  K.K. dated May 22, 1992

  	
   

  	
  (5)

  
	
  10.11

  	
   

  	
  The Company’s 1988
  Incentive Plan

  	
   

  	
  (1)

  
	
  10.12

  	
   

  	
  The Company’s 1991
  Stock Option Plan, as amended

  	
   

  	
  (6),(13)

  
	
  10.13

  	
   

  	
  The Company’s Executive
  Incentive Compensation Plan, as amended

  	
   

  	
  (7),(13)

  
	
  10.14

  	
   

  	
  Form of Individual
  Participation Agreement relating to the Company’s Executive Compensation Plan

  	
   

  	
  (7)

  
	
  10.15

  	
   

  	
  Employment Agreement
  between the Company and Norman Friedmann dated August 1, 1992

  	
   

  	
  (5)

  
	
  10.17

  	
   

  	
  Amendment to Employment
  Agreement between the Company and Norman Friedmann dated July 27, 1993

  	
   

  	
  (7)

  
	
  10.18

  	
   

  	
  Amendment to Employment
  Agreement between the Company and David Addis dated June 29, 1993

  	
   

  	
  (7)

  
	
  10.19

  	
   

  	
  Form of Letter
  Agreement between the Compensation Committee of the Board of Directors of the
  Company and Mark Hughes

  	
   

  	
  (7)

  
	
  10.20

  	
   

  	
  Form of Indemnity
  Agreement between the Company and certain officers and directors of the
  Company

  	
   

  	
  (7)

  
	
  10.21

  	
   

  	
  Trust Agreement among
  the Company, Citicorp Trust, N.A. and certain officers and directors of the
  Company

  	
   

  	
  (7)

  
	
  10.22

  	
   

  	
  Form of Stock
  Appreciation Rights Agreement between the Company and certain directors of
  the Company

  	
   

  	
  (7)

  
	
  10.23

  	
   

  	
  1994 Performance Based
  Annual Incentive Compensation Plan

  	
   

  	
  (8)

  



 


	
  Exhibit
  Number

  	
   

  	
  Description

  	
   

  	
  Page No./(Footnote)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.24

  	
   

  	
  Form of Promissory Note
  for Advances under the Company’s 1994 Performance Based Annual Incentive
  Compensation Plan

  	
   

  	
  (9),(12)

  
	
  10.25

  	
   

  	
  Employment Agreement
  between the Company and Chris Pair dated April 3, 1994

  	
   

  	
  (10)

  
	
  10.26

  	
   

  	
  Deferred Compensation
  Agreement between the Company and Michael Rosen

  	
   

  	
  (10)

  
	
  10.27

  	
   

  	
  Office lease agreement
  between the Company and State Teacher’s Retirement System, dated
  July 20, 1995

  	
   

  	
  (11)

  
	
  10.28

  	
   

  	
  Form of stock
  appreciation rights agreements between the Company and certain directors of
  the Company

  	
   

  	
  (11)

  
	
  10.29

  	
   

  	
  The Company’s Senior
  Executive Deferred Compensation Plan, effective January 1,1996

  	
   

  	
  (11)

  
	
  10.30

  	
   

  	
  The Company’s
  Management Deferred Compensation Plan, effective January 1, 1996

  	
   

  	
  (11)

  
	
  10.31

  	
   

  	
  Matter Trust Agreement
  between the company and Imperial Trust Company, Inc., effective
  January 1, 1996

  	
   

  	
  (11)

  
	
  10.32

  	
   

  	
  The Company’s 401K Plan

  	
   

  	
  (11)

  
	
  21

  	
   

  	
  List of subsidiaries of
  the Company

  	
   

  	
  (11)

  
	
  23.1

  	
   

  	
  Independent Auditors’
  Consent

  	
   

  	
  (11)

  
	
  27

  	
   

  	
  Financial Data Schedule

  	
   

  	
  (11)

  



 
















 










(1)                                  Incorporated
by reference to the Company’s Annual Report on Form 1O-K for the year ended
December 31, 1987.


 


(2)                                  Incorporated
by reference to the Company’s Annual Report on Form 10-K for the year ended
December 31, 1989.


 


(3)                                  Incorporated
by reference to the Company’s Annual Report on Form 10-K for the year ended
December 31, 1990.


 


(4)                                  Incorporated
by reference to the Company’s Annual Report on Form 10-K for the year ended
December 31, 1991.


 


(5)                                  Incorporated
by reference to the Company’s Annual Report on Form 10-K for the year ended
December 31, 1992.


 


(6)                                  Incorporated
by reference to the Company’s definitive Proxy Statement relating to its annual
meeting of shareholders held May 20, 1993.


 


(7)                                  Incorporated
by reference to the Company’s Registration Statement on Form S-1 (No. 33-66576)
declared effective by the Securities and Exchange Commission on October 8,
1993.


 


(8)                                  Incorporated
by reference to the Company’s Quarterly Report on Form 10-Q for the three
months ended June 30, 1994.


 


(9)                                  Incorporated
by reference to the Company’s Definitive Proxy Statement relating to its 1994
Annual Meeting of Stockholders.


 


(10)                            Incorporated
by reference to the Company’s Annual Report on Form 10-K for the year ended
December 31, 1994.


 


(11)                            Filed
herewith


 


(12)                            Form of the
amended and restated plan, to be submitted for shareholder approval at the 1996
Annual Meeting of Shareholders, will be attached as an appendix to the Proxy
Statement relating to such meeting.