exv10w14



 





Exhibit 10.14




THE MEN’S WEARHOUSE, INC.




EMPLOYEE STOCK OWNERSHIP PLAN




Amendment and Restatement

Effective December 31, 2006





 









 








THE MEN’S WEARHOUSE, INC.

EMPLOYEE STOCK OWNERSHIP PLAN




     THIS AGREEMENT adopted by The Men’s Wearhouse, Inc., (the “Sponsor”);



W I T N E S S E T H:




     WHEREAS, the Sponsor, previously established The Men’s Wearhouse, Inc. Employee Stock Plan
(the “Plan”);



     WHEREAS, the Plan is intended to meet the requirements for qualification as a stock bonus plan
under Section 401(a) of the Code and to comply with applicable provisions of the Employee
Retirement Income Security Act of 1974 (“ERISA”);



     WHEREAS, the Plan is an employee stock ownership plan within the meaning of section 4975(e)(7)
of the Code and is designed to invest primarily in qualifying employer securities;



     WHEREAS, the primary purpose of the Plan is to benefit Members and their beneficiaries by
providing a vehicle for building equity ownership of the Sponsor by its employees and the employees
of related employers;



     WHEREAS, the Plan is also designed to facilitate the achievement of financial objectives of
the Sponsor and related employers, including general financing requirements, capital growth, and
transfer of ownership of employer securities; and



     WHEREAS, the Sponsor has determined to amend the Plan and to change the name of the Plan to
“The Men’s Wearehouse, Inc. Employee Stock Ownership Plan”;



     NOW, THEREFORE, effective as of December 31, 2006, except to the extent that a different
effective date is required by law or specified herein, the Plan is hereby amended and restated in
its entirety, as set forth below:




 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Section
	ARTICLE I — DEFINITIONS	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Account
	 	 	1.01	 
	 

	 	Acquisition Loan
	 	 	1.02	 
	 

	 	Active Service
	 	 	1.03	 
	 

	 	Affiliated Employer
	 	 	1.04	 
	 

	 	Annual Compensation
	 	 	1.05	 
	 

	 	Annuity Starting Date
	 	 	1.06	 
	 

	 	Applicable Distribution Period
	 	 	1.07	 
	 

	 	Beneficiary or Beneficiaries
	 	 	1.08	 
	 

	 	Board
	 	 	1.09	 
	 

	 	Code
	 	 	1.10	 
	 

	 	Committee
	 	 	1.11	 
	 

	 	Computation Period
	 	 	1.12	 
	 

	 	Considered Compensation
	 	 	1.13	 
	 

	 	Debt Reduction Contribution
	 	 	1.14	 
	 

	 	Direct Rollover
	 	 	1.15	 
	 

	 	Disability
	 	 	1.16	 
	 

	 	Distributee
	 	 	1.17	 
	 

	 	Distribution Calendar Year
	 	 	1.18	 
	 

	 	Diversification Election Period
	 	 	1.19	 
	 

	 	Effective Date
	 	 	1.20	 
	 

	 	Eligible Retirement Plan
	 	 	1.21	 
	 

	 	Eligible Rollover Distribution
	 	 	1.22	 
	 

	 	Employee
	 	 	1.23	 
	 

	 	Employer
	 	 	1.24	 
	 

	 	Employer Contribution
	 	 	1.25	 
	 

	 	Employer Securities
	 	 	1.26	 
	 

	 	ERISA
	 	 	1.27	 
	 

	 	Final Section 401(a)(9) Regulations
	 	 	1.28	 
	 

	 	Financed Shares
	 	 	1.29	 
	 

	 	Five Percent Owner
	 	 	1.30	 
	 

	 	Hour of Employment
	 	 	1.31	 
	 

	 	Leased Employee
	 	 	1.32	 
	 

	 	Loan Suspense Account
	 	 	1.33	 
	 

	 	Member
	 	 	1.34	 
	 

	 	Nonforfeitable Interest
	 	 	1.35	 
	 

	 	Period of Service
	 	 	1.36	 
	 

	 	Period of Severance
	 	 	1.37	 
	 

	 	Plan
	 	 	1.38	 
	 

	 	Plan Year
	 	 	1.39	 
	 

	 	Publicly Traded
	 	 	1.40	 
	 

	 	Qualified Domestic Relations Order
	 	 	1.41	 






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	 	Qualified Member
	 	 	1.42	 
	 

	 	Registration Type Securities
	 	 	1.43	 
	 

	 	Regulation
	 	 	1.44	 
	 

	 	Required Beginning Date
	 	 	1.45	 
	 

	 	Retirement Age
	 	 	1.46	 
	 

	 	Section 401(a)(9) Beneficiary
	 	 	1.47	 
	 

	 	Separation From Service
	 	 	1.48	 
	 

	 	Service
	 	 	1.49	 
	 

	 	Sponsor
	 	 	1.50	 
	 

	 	Spouse
	 	 	1.51	 
	 

	 	Trading Limitation
	 	 	1.52	 
	 

	 	Trust
	 	 	1.53	 
	 

	 	Trustee
	 	 	1.54	 
	 

	 	Trust Fund
	 	 	1.55	 
	 

	 	Valuation Date
	 	 	1.56	 
	 

	 	Year of Active Service
	 	 	1.57	 
	 
	 	 	 	 	 	 
	ARTICLE II — ELIGIBILITY RULES	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Eligibility Requirements
	 	 	2.01	 
	 

	 	Eligibility Upon Reemployment
	 	 	2.02	 
	 

	 	Frozen Participation
	 	 	2.03	 
	 
	 	 	 	 	 	 
	ARTICLE III — CONTRIBUTIONS	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Employer Contributions
	 	 	3.01	 
	 

	 	Restoration Contributions
	 	 	3.02	 
	 

	 	Form of Employer Contributions
	 	 	3.03	 
	 

	 	Return of Contributions for Mistake, Disqualification

     or Disallowance of Deduction
	 	 	3.04	 
	 

	 	Rollover Contributions
	 	 	3.05	 
	 
	 	 	 	 	 	 
	ARTICLE IV — ALLOCATIONS AND VALUATIONS	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Allocation of Employer Contributions
	 	 	4.01	 
	 

	 	Allocation of Forfeitures
	 	 	4.02	 
	 

	 	Financed Shares Placed in Loan Suspense Account
	 	 	4.03	 
	 

	 	Application of Debt Reduction Contribution
	 	 	4.04	 
	 

	 	Allocation of Dividends on Employer Securities
	 	 	4.05	 
	 

	 	Allocation of Financed Shares Among Members’ Accounts
	 	 	4.06	 
	 

	 	Allocation of Financed Shares in Nonmonetary Units
	 	 	4.07	 
	 

	 	Tender or Exchange Offers
	 	 	4.08	 
	 

	 	Stock Splits
	 	 	4.09	 
	 

	 	Valuation of Trust Fund
	 	 	4.10	 
	 

	 	Interim Valuation of Trust Fund
	 	 	4.11	 
	 

	 	Rights of Members or Former Members in Trust Fund
	 	 	4.12	 






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	ARTICLE V — VESTING	 	 	 	 
	 
	 	 	 	 	 	 
	ARTICLE VI — BENEFITS	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Valuation of Accounts for Distributions
	 	 	6.01	 
	 

	 	Retirement Benefit
	 	 	6.02	 
	 

	 	Disability Benefit
	 	 	6.03	 
	 

	 	Severance Benefit
	 	 	6.04	 
	 

	 	Death Benefit
	 	 	6.05	 
	 

	 	Distribution Methods Available
	 	 	6.06	 
	 

	 	Election of Distribution Method
	 	 	6.07	 
	 

	 	Default Distribution Method
	 	 	6.08	 
	 

	 	Immediate Payment of Small Amount Upon Separation From Service
	 	 	6.09	 
	 

	 	Forms of Payment Available
	 	 	6.10	 
	 

	 	Direct Rollover Option
	 	 	6.11	 
	 

	 	Time of Distribution
	 	 	6.12	 
	 

	 	Required Distributions
	 	 	6.13	 
	 

	 	Consent to Distribution Upon Separation From Service
	 	 	6.14	 
	 

	 	Information Provided to Members
	 	 	6.15	 
	 

	 	Designation of Beneficiary
	 	 	6.16	 
	 

	 	Distribution to Minor or Incapacitated Person
	 	 	6.17	 
	 

	 	Distribution Pursuant to Qualified Domestic Relations Order
	 	 	6.18	 
	 

	 	Distribution Prior to Separation From Service
	 	 	6.19	 
	 

	 	Claims Procedure
	 	 	6.20	 
	 
	 	 	 	 	 	 
	ARTICLE VII — VESTING SERVICE AND ELIGIBILITY SERVICE	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	When Active Service Begins
	 	 	7.01	 
	 

	 	Eligibility and Vesting Computation Periods
	 	 	7.02	 
	 

	 	When An Employee Severs Service
	 	 	7.03	 
	 

	 	Periods of Severance
	 	 	7.04	 
	 

	 	Employment Records Conclusive
	 	 	7.05	 
	 

	 	Service Credit Required under Federal Law
	 	 	7.06	 
	 
	 	 	 	 	 	 
	ARTICLE VIII — FORFEITURES	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Forfeiture by Lost Former Members or Beneficiaries
	 	 	8.01	 
	 

	 	Forfeiture on Termination of Participation
	 	 	8.02	 
	 

	 	Allocation of Forfeitures
	 	 	8.03	 
	 

	 	Restoration of Forfeited Amounts
	 	 	8.04	 
	 

	 	Forfeiture of Financed Shares
	 	 	8.05	 
	 
	 	 	 	 	 	 
	ARTICLE IX — ADMINISTRATION OF THE PLAN	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Appointment, Term of Service & Removal
	 	 	9.01	 
	 

	 	Powers
	 	 	9.02	 
	 

	 	Organization
	 	 	9.03	 
	 

	 	Quorum and Majority Action
	 	 	9.04	 






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	 	Signatures
	 	 	9.05	 
	 

	 	Disqualification of Committee Member
	 	 	9.06	 
	 

	 	Disclosure of Records
	 	 	9.07	 
	 

	 	Standard of Performance
	 	 	9.08	 
	 

	 	Liability of Committee and Liability Insurance
	 	 	9.09	 
	 

	 	Exemption from Bond
	 	 	9.10	 
	 

	 	Compensation
	 	 	9.11	 
	 

	 	Persons Serving in Dual Fiduciary Roles
	 	 	9.12	 
	 

	 	Administrator
	 	 	9.13	 
	 

	 	Standard of Judicial Review of Committee Actions
	 	 	9.14	 
	 

	 	Indemnification of Committee by the Sponsor
	 	 	9.15	 
	 
	 	 	 	 	 	 
	ARTICLE X — VOTING OF EMPLOYER SECURITIES AND TENDER OFFERS	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Voting of Employer Securities
	 	 	10.01	 
	 

	 	Tender Offers
	 	 	10.02	 
	 

	 	Shares Credited
	 	 	10.03	 
	 

	 	Conversion
	 	 	10.04	 
	 

	 	Named Fiduciary
	 	 	10.05	 
	 
	 	 	 	 	 	 
	ARTICLE XI — TRUST FUND AND CONTRIBUTIONS	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Funding of Plan
	 	 	11.01	 
	 

	 	Incorporation of Trust
	 	 	11.02	 
	 

	 	Authority of Trustee
	 	 	11.03	 
	 

	 	Investments in Employer Securities
	 	 	11.04	 
	 

	 	Acquisition Loans
	 	 	11.05	 
	 
	 	 	 	 	 	 
	ARTICLE XII — DIVERSIFICATION ELECTION	 	 	 	 
	 
	 	 	 	 	 	 
	ARTICLE XIII — ADOPTION OF PLAN BY OTHER EMPLOYERS	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Adoption Procedure
	 	 	13.01	 
	 

	 	No Joint Venture Implied
	 	 	13.02	 
	 

	 	All Trust Assets Available to Pay All Benefits
	 	 	13.03	 
	 

	 	Qualification a Condition Precedent to Adoption and Continued Participation
	 	 	13.04	 
	 
	 	 	 	 	 	 
	ARTICLE XIV — AMENDMENT AND TERMINATION	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Right to Amend and Limitations Thereon
	 	 	14.01	 
	 

	 	Amendment Applicable Only to Members Still Employed

     Unless Amendment Specifically Provides Otherwise
	 	 	14.02	 
	 

	 	Mandatory Amendments
	 	 	14.03	 
	 

	 	Withdrawal of Employer
	 	 	14.04	 
	 

	 	Termination of the Plan
	 	 	14.05	 
	 

	 	Partial or Complete Termination or Complete Discontinuance
	 	 	14.06	 






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	ARTICLE XV — MISCELLANEOUS	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Plan Not An Employment Contract
	 	 	15.01	 
	 

	 	Benefits Provided Solely From Trust
	 	 	15.02	 
	 

	 	Assignments Prohibited
	 	 	15.03	 
	 

	 	Requirements Upon Merger or Consolidation of Plans
	 	 	15.04	 
	 

	 	Gender of Words Used
	 	 	15.05	 
	 

	 	Right of First Refusal and Put Option Right if Stock is Not

     Publicly Traded or is Subject to a Trading Limitation
	 	 	15.06	 
	 

	 	Severability
	 	 	15.07	 
	 

	 	Reemployed Veterans
	 	 	15.08	 
	 

	 	Limitations on Legal Actions
	 	 	15.09	 
	 

	 	Governing Law
	 	 	15.10	 
	 

	 	Prohibition of Qualified Gratuitous Transfers
	 	 	15.11	 
	 
	 	 	 	 	 	 
	APPENDIX A — LIMITATIONS ON CONTRIBUTIONS	 	 	 	 
	 
	 	 	 	 	 	 
	APPENDIX B — TOP-HEAVY REQUIREMENTS	 	 	 	 






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ARTICLE I




DEFINITIONS




     The words and phrases defined in this Article shall have the meaning set out in the definition
unless the context in which the word or phrase appears reasonably requires a broader, narrower or
different meaning.



     1.01 "Account” means all ledger accounts pertaining to a Member, former Member or Beneficiary
which are maintained by the Trustee to reflect the Member’s interest in the Trust Fund. The
Trustee shall establish the following Accounts and any additional Accounts that the Trustee
considers necessary to reflect the entire interest of the Member, former Member, or Beneficiary in
the Trust Fund. Each of the Accounts listed below and any additional Accounts established by the
Trustee shall reflect the Contributions to the Trust Fund, if any, and the appreciation or
depreciation of the assets in the Trust Fund and the income earned or loss incurred on the assets
in the Trust Fund attributable to the Contributions to the Account.



          (a) ESOP Account - All investments in shares of Employer Securities.



          (b) Employer Contribution Account — Cash and all investments in assets other than Employer
Securities.



     1.02 "Acquisition Loan” means a loan (or other extension of credit) obtained by the Trustee to
finance the acquisition of Employer Securities for the Trust Fund which loan may constitute an
extension of credit to the Trust from a party in interest (as defined in ERISA).



     1.03 "Active Service” means the Periods of Service which are counted for either eligibility or
vesting purposes as calculated under Article VII.



     1.04 "Affiliated Employer” means an employer which is a member of the same controlled group of
corporations within the meaning of section 414(b) of the Code or which is a trade or business
(whether or not incorporated) which is under common control (within the meaning of section 414(c)
of the Code) or which is a member of an affiliated service group (within the meaning of section
414(m) of the Code) with the Sponsor. For purposes of the limitation on allocations contained in
Appendix A, the definition of Affiliated Employer is modified by substituting the phrase “more than
50 percent” in place of the phrase “at least 80 percent” each place the latter phrase appears in
section 1563(a)(1) of the Code.



     1.05 "Annual Compensation” for a Plan Year or Limitation Year means the Employee’s wages paid
during the Plan Year or Limitation Year by the Affiliated Employers as defined in section 3401(a)
of the Code for purposes of federal income tax withholding at the source (but determined without
regard to any rules that limit the remuneration included in wages based on the nature or location
of the employment or the services performed) modified by including elective contributions under a
cafeteria plan maintained by an Affiliated Employer that are excludable from the Employee’s gross
income pursuant to section 125 of the Code, elective contributions under a qualified transportation
fringe benefit plan maintained by an Affiliated



I-1









 







Employer that are excludable from the Employee’s gross income pursuant to section 132(f)(4) of
the Code and elective contributions made on behalf of the Employee to any plan maintained by an
Affiliated Employer that is qualified under or governed by section 401(k), 408(k), 408(p), 457(b)
or 403(b) of the Code, in each case, that would have been paid during the Plan Year or Limitation
Year (as applicable) but for the Employee’s election. “Annual Compensation” shall not include
amounts paid after an Employee’s Separation From Service unless the amounts (i) are paid (or would
have been paid but for the Employee’s election under Section 401(k), 403(b) 457(b), 408(k), 408(p),
132(f) or 125 of the Code) within two and one half (2 1/2) months following the Employee’s Separation
From Service, (ii) would, absent the Employee’s Separation From Service, have been paid to the
Employee while the Employee continued in employment with an Affiliated Employer, and (iii) are
regular compensation for services during the Employee’s regular working hours, compensation for
services outside regular working hours (such as overtime and shift differential), commissions,
bonuses, or similar compensation; and payments for accrued bona fide sick, vacation, or other
leave, but only if the Employee would have been able to use the leave if his employment had
continued. Except for purposes of Section A.3.1 of Appendix A of the Plan, Annual Compensation in
excess of $200,000.00 (as adjusted by the Secretary of Treasury for increases in the cost of
living) will be disregarded. The cost-of-living adjustment in effect for a calendar year applies
to Annual Compensation for the Plan Year that begins within such calendar year. If the Plan Year
is ever less than twelve (12) months, the $200,000.00 limitation (as adjusted by the Secretary of
Treasury for increases in the cost of living) will be prorated by multiplying the limitation by a
fraction, the numerator of which is the number of months in the Plan Year, and the denominator of
which is twelve (12).



     1.06 "Annuity Starting Date” means the first day of the first period for which an amount is
payable as an annuity, or in the case of a benefit payable in the form of a lump sum, the date on
which the Trustee disburses the lump sum.



     1.07 “Applicable Distribution Period” means as follows:




     (a) Distributions During the Member’s or former Member’s Life. For Distribution
Calendar Years commencing on or after January 1, 2003, up to and including the Distribution
Calendar Year that includes the Member’s or former Member’s death, the “Applicable
Distribution Period” is the Member’s or former Member’s life expectancy determined using the
Uniform Lifetime Table in Regulation section 1.401(a)(9)-9 for his age as of his birthday in
the relevant Distribution Calendar Year. However, if the Member’s or former Member’s sole
Section 401(a)(9) Beneficiary for the entire Distribution Calendar Year is his Spouse, for
distributions during his lifetime, his “Applicable Distribution Period” shall not be less
than the joint life expectancy of him and his Spouse using his and his Spouse’s attained
ages as of his and his Spouse’s birthdays in the Distribution Calendar Year.




     (b) Distributions after the Member’s or former Member’s Death. Effective for
Distribution Calendar Years commencing on or after January, 1, 2003, if a Member or former
Member dies on or after his Required Beginning Date, the “Applicable Distribution Period”
for Distribution Calendar Years after the Distribution Calendar Year containing the Member’s
or former Member’s date of death is the longer of the



I-2









 







remaining life expectancy of his Section 401(a)(9) Beneficiary (if any) determined in
accordance with the Final Section 401(a)(9) Regulations (calculated by using the age of the
Section 401(a)(9) Beneficiary in the year following the year of the former Member’s death,
reduced by one for each subsequent year) or the remaining life expectancy of the former
Member determined in accordance with the Final Section 401(a)(9) Regulations (calculated by
using the age of the former Member in the year of death, reduced by one or each subsequent
year). However, if the former Member’s surviving Spouse is the former Member’s sole Section
401(a)(9) Beneficiary, the remaining life expectancy of the surviving Spouse is calculated
for each Distribution Calendar Year after the year of the former Member’s death using the
surviving Spouse’s age as the surviving Spouse’s birthday in that year; and for distribution
calendar years after the year of the surviving Spouse’s death, the remaining life expectancy
of the surviving Spouse is calculated using the age of the surviving Spouse as of the
surviving Spouse’s birthday in the calendar year of the surviving Spouse’s death, reduced by
one for each subsequent calendar year.



     1.08 "Beneficiary” or “Beneficiaries” means the person or persons, or the trust or trusts
created for the benefit of a natural person or persons or the Member’s or former Member’s estate,
designated by the Member or former Member to receive the benefits payable under the Plan upon his
death.



     1.09 "Board” means the board of directors of the Sponsor.



     1.10 "Code” means the Internal Revenue Code of 1986, as amended from time to time.



     1.11 "Committee” means the committee appointed by the Sponsor to administer the Plan.



     1.12 "Computation Period” means a period of 12 consecutive months used to determine an
Employee’s eligibility or vesting.



     1.13 "Considered Compensation” means the Employee’s Annual Compensation; however, Considered
Compensation in excess of $50,000.00 will be disregarded.



     1.14 "Debt Reduction Contribution” means that portion of the Employer Contribution necessary
to make timely payments of all amounts due under any Acquisition Loan for the Plan Year plus any
additional amount designated by the Board to be used to reduce Acqusition Loans.



     1.15 "Direct Rollover” means a payment by the Plan to the Eligible Retirement Plan specified
by the Distributee.



     1.16 "Disability” means a disability which results in a determination that the Member is
disabled under title II or XVI of the Social Security Act.



     1.17 "Distributee” means an Employee or former Employee. In addition, the Employee’s or
former Employee’s surviving Spouse and the Employee’s or former Employee’s



I-3









 







Spouse or former Spouse who is the alternate payee under a Qualified Domestic Relations Order,
are Distributees with regard to the interest of the Spouse or former Spouse.



     1.18 "Distribution Calendar Year” means a calendar year for which a minimum distribution is
required to be made to a Member or former Member under section 401(a)(9) of the Code and Department
of Treasury Regulations thereunder. If a Member’s or former Member’s Required Beginning Date is
April 1 of the calendar year following the calendar year in which he attains age 701/2, his first
Distribution Calendar Year is the calendar year in which he attains age 701/2. If a Member’s or
former Member’s Required Beginning Date is April 1 of the calendar year following the calendar year
in which he incurs a Separation From Service, his first Distribution Calendar Year is the calendar
year in which he incurs a Separation From Service/



     1.19 "Diversification Election Period” means the six Plan Year period beginning with the later
of (a) the first Plan Year in which the Employee or former Employee first became a Qualified Member
or (b) the Effective Date.



     1.20 "Effective Date” means January 1, 2006.



     1.21 "Eligible Retirement Plan” means (a) an individual retirement account described in
section 408(a) of the Code, (b) an individual retirement annuity described in section 408(b) of the
Code (other than an endowment contract), (c) an annuity plan described in section 403(a) of the
Code, (d) a qualified plan described in section 401(a) of the Code that is a defined contribution
plan that accepts the Distributee’s Eligible Rollover Distribution, (e) an eligible deferred
compensation plan described in section 457(b) of the Code that is maintained by an eligible
employer described in section 457(e)(1)(A) of the Code but only if the plan agrees to separately
account for amounts rolled into such plan, or (f) an annuity contract described in section 403(b)
of the Code.



     1.22 "Eligible Rollover Distribution” means any distribution of all or any portion of the
balance to the credit of the Distributee, except that an Eligible Rollover Distribution does not
include: (a) any distribution that is one of a series of substantially equal periodic payments
(not less frequently than annually) made for the life (or life expectancy) of the Distributee or
the joint lives (or joint life expectancies) of the Distributee and the Distributee’s Beneficiary,
or for a specified period of ten years or more; (b) any distribution to the extent the distribution
is required under section 401(a)(9) of the Code; (c) the portion of any distribution that is not
includable in gross income (determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities) unless, the Eligible Retirement Plan to which the
distribution is transferred (1) is a qualified trust described in section 401(a) of the Code which
is exempt from tax under section 501(a) of the Code and is part of a defined contribution plan that
agrees to separately account for amounts so transferred, including separately accounting for the
portion of such distribution which is not includable in gross income or (2) is an individual
retirement account described in section 408(a) of the Code or an individual retirement annuity
described in section 408(b) of the Code (other than an endowment contract); and, (d) a distribution
from any of the Participant’s or former Participant’s Accounts due to a financial hardship of the
Participant or former Participant.



I-4









 





     1.23 "Employee” means every person who is (a) a common law employee of an Affiliated Employer
or (b) a Leased Employee.



     1.24 "Employer” means the Sponsor and any other Affiliated Employer which has adopted this
Plan.



     1.25 "Employer Contribution” means the amount contributed by the Employer under Article III.



     1.26 “Employer Securities” means common stock issued by the Sponsor or by an Affiliated
Employer that is Publicly Traded, or if there is no such stock, then the term “Employer Securities”
means common stock issued by the Sponsor or by an Affiliated Employer that has a combination of
voting power and dividend rights equal to or in excess of (a) that class of common stock of such
corporation having the greatest voting power and (b) that class of common stock of such corporation
having the greatest dividend rights.



     1.27 "ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time
to time.



     1.28 "Final Section 401(a)(9) Regulations” means the final Department of Treasury Regulations
issued under section 401(a)(9) of the Code which were published in the Federal Register on April
17, 2002.



     1.29 "Financed Shares” means shares of Employer Securities acquired by the Trust Fund with the
proceeds of an Acquisition Loan.



     1.30 "Five Percent Owner” means an Employee who is a five percent owner as defined in section
416(i) of the Code.



     1.31 "Hour of Employment” means each hour (a) that an Employee is either directly or
indirectly paid or entitled to payment by the Employer or Affiliated Employer for the performance
of duties; (b) that an Employee is either directly or indirectly paid or entitled to payment by the
Employer or Affiliated Employer for a period of time during which no duties are performed (whether
or not the employment relationship has terminated) due to vacation, holiday, illness, incapacity
(including disability), layoff, jury duty, military duty, leave of absence; or (c) that an Employee
is paid or entitled to payment of back pay, irrespective of mitigation of damages, which is awarded
or agreed to by the Employer or Affiliated Employer. The same Hours of Employment shall not be
credited both under clauses (a) or (b) and (c). For purposes of clauses (b) and (c) no more than
501 Hours of Employment shall be credited to an Employee due to any single continuous period during
which he performs no duties (whether or not the period occurs in a single Computation Period).
Hours of Employment shall not be credited if they are paid for under a plan maintained solely to
comply with workmen’s compensation, unemployment compensation or disability insurance laws. Hours
of Employment shall not be credited if they are paid for solely to reimburse an Employee for
medical or medically related expenses incurred by him. The number of Hours of Employment credited
as Active Service shall be the number of actual Hours of Employment performed by the Employee,
based upon the



I-5









 







records of the Employer. If the Employer’s records are inadequate and the Employee would be
required to be credited with an Hour of Employment for a payroll period under the foregoing
provisions of this Section, the Employee will be credited with 10 Hours of Employment if he is
customarily paid on a daily basis, 45 Hours of Employment if he is customarily paid on a weekly
basis, 90 Hours of Employment if he is customarily paid on a bi-weekly basis, 95 Hours of
Employment if he is customarily paid on a semi-monthly basis, and 190 Hours of Employment if he is
customarily paid on a monthly basis. If an Employee receives compensation for which no duties were
performed that was not based upon units of time, the Hours of Employment to be credited will be
calculated under the method set forth in Department of Labor Regulations Section 2530.200b-2(b)(2).



     1.32 "Leased Employee” means any person who (a) is not a common law employee of an Affiliated
Employer, (b) pursuant to an agreement between an Affiliated Employer and any other person, has
performed services for an Affiliated Employer (or for an Affiliated Employer 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 year and (c) performs the services under primary direction and control of
the recipient.



     1.33 "Loan Suspense Account” means the ledger account maintained by the Committee with respect
to Financed Shares that have not been allocated to Member’s Accounts.



     1.34 "Member” means a person employed by the Employer during the Plan Year and eligible to
participate in the Plan.



     1.35 "Nonforfeitable Interest” means a Member’s nonforfeitable interest in amounts credited to
his Account determined in accordance with Article V.



     1.36 "Period of Service” means a period of employment with an Employer or Affiliated Employer,
which commences on the day on which an Employee performs his initial Hour of Employment or performs
his initial Hour of Employment upon returning to the employ of the Employer or an Affiliated
Employer, whichever is applicable, and ends on the date the Employee severs Service.



     1.37 "Period of Severance” means the period of time commencing on the date an Employee severs
Service and ending on the date the Employee again performs an Hour of Employment.



     1.38 "Plan” means this Plan, including all subsequent amendments.



     1.39 "Plan Year” means the 12-month period that commences on January 1 and ends on December
31. The Plan Year shall be the fiscal year of the Plan.



     1.40 "Publicly Traded” means a security that is listed on a national securities exchange
registered under Section 6 of the Securities Exchange Act of 1934 or that is quoted on a system
sponsored by a national securities association registered under Section 15A(b) of the Securities
Exchange Act.



I-6









 





     1.41 "Qualified Domestic Relations Order” means a qualified domestic relations order as
defined in section 414(p) of the Code.



     1.42 "Qualified Member” means an Employee or former Employee who has completed at least ten
(10) years of participation under the Plan and has attained age 55.



     1.43 "Registration Type Securities” means a class of securities of the Employer or an
Affiliated Employer that is required to be registered under section 12 of the Securities Exchange
Act of 1934 or that would be required to be so registered except for the exemption from
registration provided in section 12(g)(2)(H) of the Securities Exchange Act of 1934.



     1.44 "Regulation” means the Department of Treasury regulation specified, as it may be changed
from time to time.



     1.45 "Required Beginning Date” means:



          (a) in the case of an individual who is not a Five Percent Owner in the Plan Year that ends in
the calendar year in which he attains age 701/2, the Required Beginning Date is April 1 of the
calendar year following the later of (i) the calendar year in which the individual attains age 701/2,
or (ii) the calendar year in which the individual has a Separation From Service; and



          (b) in the case of an individual who is a Five Percent Owner in the Plan Year that ends in the
calendar year in which he attains age 701/2, the Required Beginning Date is April 1 of the calendar
year following the calendar year in which he attains age 701/2.



     1.46 "Retirement Age” means age 65.



     1.47 “Section 401(a)(9) Beneficiary” means an individual who is a Member’s or former Member’s
Beneficiary on the date of the Member’s or former Member’s death and (unless the Beneficiary dies
after the date of the Member’s or former Member’s death and before September 30 of the following
calendar year without disclaiming benefits under the Plan) who remains a Beneficiary as of
September 30 of the calendar year following the calendar year of the Member’s or former Member’s
death. If the Member’s or former Member’s Beneficiary is a trust, an individual beneficiary of the
trust may be a Section 401(a)(9) Beneficiary of the Member or former Member if the requirements of
Regulation Section 1.401(a)(9)-4 are satisfied.



     1.48 "Separation From Service” means an individual’s termination of employment with the
Sponsor and all Affiliated Employers without commencing or continuing employment with the Sponsor
or any other Affiliated Employer.



     1.49 "Service” means the period or periods that a person is paid or is entitled to payment for
performance of duties with the Employer or an Affiliated Employer.



     1.50 "Sponsor” means The Men’s Wearhouse, Inc.



I-7









 





     1.51 “Spouse” means the person to whom the Member or former Member is married under applicable
local law. In addition, to the extent provided in a Qualified Domestic Relations Order, a
surviving former spouse of a Member or former Member will be treated as the Spouse of the Member or
former Member, and to the same extent any current spouse of the Member or former Member will not be
treated as a Spouse of the Member or former Member. For purposes of Section 5.06, a former Spouse
to whom all or a portion of a Member’s or former Member’s Plan benefit is payable under a Qualified
Domestic Order shall, to that extent, be treated as a Spouse or surviving Spouse regardless of
whether the Qualified Domestic Relations Order specifically provides that the former Spouse is to
be treated as the Spouse for purposes of Sections 401(a)(11) and 417 of the Code.



     1.52 "Trading Limitation” means a restriction on a security under any federal or state
securities law, any regulation thereunder, or an agreement, not prohibited under the terms of the
Plan, affecting the security which would make the security not as freely tradeable as one not
subject to the restriction.



     1.53 "Trust” means the trust created to fund the Plan.



     1.54 "Trustee” means the entity with trust powers that is appointed by the Sponsor and has
accepted the duties of Trustee and any and all successor or successors appointed by the Sponsor or
successor Sponsor.



     1.55 "Trust Fund” means all of the trust estates established under the terms of the Plan to
fund the Plan, whether held to fund a particular group of Accounts or held to fund all of the
Accounts, collectively.



     1.56 "Valuation Date” means the day or days each Plan Year selected by the Committee on which
the Trust Fund is to be valued which cannot be less frequent than annual. One or more Accounts may
have different Valuation Dates from other Accounts. The Valuation Date must be announced to all
Members and shall remain the same until changed by the Committee and announced to the Members.
Until changed by the Committee, the Valuation Date shall be the last day of each Plan Year.



     1.57 "Year of Active Service” shall have the meaning set forth in Section 7.01.




I-8









 








ARTICLE II




ELIGIBILITY RULES




     2.01 Eligibility Requirements. Each Employee shall become a Member effective as of the first
day of the Plan Year containing the later of (a) the effective date of the adoption of this Plan by
his Employer, or (b) the date on which the Employee completes one Year of Active Service. However,
all Employees who are included in a unit of Employees covered by a collective bargaining agreement
between the Employees’ representative and the Employer shall be excluded, even if they have met the
requirements for eligibility, if there has been good faith bargaining between the Employer and the
Employees’ representative and the collective bargaining agreement does not require the Employer to
include those Employees in this Plan. In addition, Leased Employees shall not be eligible to
participate in the Plan. Any person who is employed by the Sponsor in connection with Value
Priced Clothing, L.L.C. shall not be eligible to participate in the Plan unless he is transferred
from the employ of the Sponsor in a capacity unrelated to Value Priced Clothing, L.L.C. to a
capacity related to Value Priced Clothing, L.L.C., or he previously transferred from the employ of
the Sponsor, The Men’s Wearhouse (Nevada) Inc. or TMI Texas Retail L.P. to Value Priced Clothing,
Inc.



     2.02 Eligibility Upon Reemployment. If an Employee severs Service with the Employer for any
reason after fulfilling the eligibility requirements, the Employee shall be eligible to begin
participation in this Plan on the day he first completes an Hour of Employment upon his return to
employment with an Employer. Once an Employee has become eligible to be a Member, he shall
continue to be a Member until he severs Service. A former Member shall become a Member again upon
his return to employment with an Employer.



     2.03 Frozen Participation. An Employee employed by an Affiliated Employer that has not
adopted this Plan cannot actively participate in this Plan even though he accrues Service.
Likewise, if a Member: (a) is transferred from an Employer to an Affiliated Employer which has not
adopted the Plan or (b) becomes excluded under the provisions of a collective bargaining agreement
or becomes a Leased Employee, his participation shall become inactive. However, his Account shall
continue to share in any Investment Gains or Losses during the period of time that he is (a)
employed by an Affiliated Employer that has not adopted the Plan, (b) excluded from covered
employment under the provisions of a collective bargaining agreement or (c) a Leased Employee.




II-1









 








ARTICLE III




CONTRIBUTIONS




     3.01 Employer Contributions. The Employer shall contribute for each Plan Year an amount, if
any, that is designated by the Board to be a discretionary Employer Contribution for the Plan Year.
The Employer shall contribute for each Plan Year an amount of Debt Reduction Contribution as shall
be necessary to make timely payment of all amounts due under any Acquisition Loan for the Plan Year
plus any additional amount designated by the Board to be used to reduce Acquisition Loans.



     The amount of the Employer’s Contribution shall not exceed 25 percent of total compensation
paid during the Plan Year to all Members, except as provided in this Section. The Contribution
made by the Employer under this Plan, when combined with any other qualified plans, shall not
exceed the maximum allowable deductions permitted under section 404 of the Code.



     The Employer Contributions for a Plan Year must be paid into the Trust Fund in one or more
installments not later than the time prescribed by law for filing the Employer’s federal income tax
return (including extensions) for its taxable year for which it is to take the deduction. If the
Contribution is paid after the last day of the Employer’s taxable year but prior to the date it
files its tax return (including extensions), it shall be treated as being received by the Trustee
on the last day of the taxable year if (a) the Employer notifies the Trustee in writing that the
payment is being made for that taxable year or (b) the Employer claims the Contribution as a
deduction on its federal income tax return for the taxable year.



     3.02 Restoration Contributions. The Employer shall, for each Plan Year, make a restoration
contribution in an amount equal to the sum of (a) such amount, if any, as shall be necessary to
fully restore all ESOP Accounts and Employer Contribution Accounts required to be restored pursuant
to the provisions of Section 8.02 after the application of all forfeitures available for such
restoration; plus (b) an amount equal in value to the value of forfeited benefits required to be
restored under Section 8.03, after the application of all forfeitures available for such
restoration.



     3.03 Form of Employer Contributions. The Employer Contribution may be paid to the Trustee
either in cash or in kind, including qualifying employer securities as defined in section 407 of
ERISA, or any combination of these, but the payment cannot be made in any form constituting a
prohibited transaction under section 4975 of the Code or section 406 of ERISA. If the Employer’s
Contribution is made in Employer Securities, the Employer Securities shall be valued at its fair
market value as of the date of the Contribution, as determined in good faith by the Trustee.



     3.04 Return of Contributions for Mistake, Disqualification or Disallowance of Deduction.
Subject to the limitations of section 415 of the Code, the assets of the Trust shall not revert to
the Employer or be used for any purpose other than the exclusive benefit of the Members and their
Beneficiaries and the reasonable expenses of administering the Plan except:



III-1









 





          (a) any Contribution made because of a mistake of fact shall be repaid to the Employer within
one year after the payment of the Contribution;



          (b) any Employer Contributions are conditioned upon their deductibility under section 404 of
the Code; therefore, to the extent the deduction is disallowed, the Contributions shall be repaid
to the Employer within one year after the disallowance.



     The Employer has the exclusive right to determine if a Contribution or any part of it is to be
repaid or is to remain as a part of the Trust Fund except that the amount to be repaid is limited,
if the Contribution is made by mistake of fact or if the deduction for the Contribution is
disallowed, to the excess of the amount contributed over the amount that would have been
contributed had there been no mistake or over the amount disallowed. Earnings which are
attributable to any excess contribution cannot be repaid. Losses attributable to an excess
contribution must reduce the amount that may be repaid. All repayments of mistaken Contributions
or Contributions which are disallowed are limited so that the balance in a Member’s Accounts cannot
be reduced to less than the balance that would have been in the Member’s Accounts had the mistaken
amount or the amount disallowed never been contributed.



     3.05 Rollover Contributions. No eligible rollover distributions described in section 402 of
the Code may be rolled over into the Plan.




III-2









 








ARTICLE IV




ALLOCATIONS AND VALUATIONS




     4.01 Allocation of Employer Contributions. As of the end of each Plan Year, the Committee
shall:



          (a) allocate the Employer Contribution, if any, which is required to restore the nonvested
portion of the Employer Accounts of Members who had previously forfeited that nonvested portion on
the date they terminated employment but who qualified for the restoration of that amount during the
Plan Year (provided that there are not sufficient forfeitures to reinstate Accounts required to be
reinstated under Section 4.4);



          (b) allocate the Employer Contribution, if any, which is required to restore the Accounts of
those Members whose benefits were forfeited because of the Committee’s inability to contact the
Members previously but who have filed a claim for their Accounts during the Plan Year;



          (c) allocate the Employer Contribution, if any, which is necessary to fulfill the Top-Heavy
Plan requirements of Appendix B if the Plan is determined to be a Top-Heavy Plan; and



          (d) allocate the Employer Contribution, if any, under Section 3.01 which is designated by the
Board to be a discretionary Employer Contribution for the Plan Year not to be used for the purposes
set out in (a) through (c) above, among the Members who are eligible to participate and who satisfy
the requirements described below.



     Employer Contributions for a Plan Year will be allocated only to those Members who have
completed 1,000 Hours of Employment during the Plan Year and are employed by an Employer or an
Affiliated Employer on the last day of the Plan Year. However, a Member who dies or severs Service
due to Disability during a Plan Year, or retires during a Plan Year after reaching Retirement Age,
will be entitled to receive an allocation of the Employer Contribution for that Plan Year even if
he has not completed 1,000 Hours of Employment or is not employed by an Employer or an Affiliated
Employer on the last day of that Plan Year. If the Employer Contribution is made in cash, it shall
be allocated based upon each Member’s Considered Compensation paid by the Employer as compared to
the Considered Compensation of all Members employed by the Employer and eligible for the
allocation. It shall be credited to each Member’s Employer Contribution Account. If the
Employer Contribution is made in Employer Securities it shall be allocated in nonmonetary units
consisting of shares of Employer Securities based upon each Considered Compensation paid by the
Employer as compared to the Considered Compensation of all Members employed by the Employer and
eligible for the allocation. It shall be credited to each Member’s ESOP Account. Likewise, from
time to time the Trustee may purchase Employer Securities with cash or other assets from the Trust.
The cash or other assets sold shall be subtracted from each Member’s Employer Contributions Account
and the shares of Employer Securities purchased shall be allocated in nonmonetary units to each
Member’s ESOP Account.



IV-1









 








     4.02 Allocation of Forfeitures. At the time a forfeiture occurs pursuant to Article VIII,
Section A.3.2 of Appendix A or Section A.3.3 of Appendix A, the amount forfeited will first be used
to reinstate any Account required to be reinstated under Article VIII, and any remaining amount
will be allocated to Members at the same time and in the same way as Employer Contributions.



     4.03 Financed Shares Placed in Loan Suspense Account. The Committee shall initially place all
Financed Shares in the Loan Suspense Account.



     4.04 Application of Debt Reduction Contribution. The Employer’s Debt Reduction Contribution
shall be applied to make payment on any outstanding Acquisition Loans under the provisions of the
instruments evidencing the Acquisition Loans and the instructions of the Committee.



     4.05 Allocation of Dividends on Employer Securities. Dividends paid with respect to Employer
Securities shall be allocated among the Members and former Members with Account balances and the
Loan Suspense Account in proportion to the number of shares of Employer Securities (of the class
with respect to which the dividend is paid) allocated to the Loan Suspense Account and to each
Member’s or former Member’s ESOP and Employer Contribution Accounts as of the record date for the
dividend. Dividends with respect to Employer Securities held in the Loan Suspense Account, to the
extent not used to make payment on an Acquisition Loan, shall immediately be reallocated to Members
and former Members in proportion to the number of shares of Employer Securities in each Member’s or
former Member’s ESOP and Employee Contribution Accounts as of the record date for the dividend. As
determined by the Committee from time to time, dividends paid with respect to Employer Securities
may be (a) paid in cash to the Members and former Members or their Beneficiaries, (b) paid to the
Trust Fund and distributed in cash to the Members and former Members or their Beneficiaries not
later than 90 days after the close of the Plan Year in which paid, (c) used to make payment on an
Acquisition Loan under the provisions of the instruments evidencing such Acquisition Loan, (d)
credited to the ESOP and Employer Contribution Accounts of Members and former Members, or (e) paid
or credited in any combination of the applications described in clauses (a) through (d) of this
sentence. Clause (c) shall apply only with respect to dividends on Financed Shares, and shall apply
with respect to Financed Shares which are allocated to any Member’s or former Member’s ESOP Account
only if and to the extent that shares of Company Stock with a fair market value not less than the
amount of the dividends are allocated to the Member’s or former Member’s ESOP Account for the
Allocation Period with respect to which the dividends would have been allocated to the Member’s or
former Member’s Account but for the application of clause (c).



     4.06 Allocation of Financed Shares Among Members’ Accounts. As of the end of each Plan Year
the Committee shall withdraw from the Loan Suspense Account the number of Financed Shares which is
equal to the number of shares held in the Loan Suspense Account immediately before that withdrawal
multiplied by a fraction, the numerator of which is the amount of principal and interest paid for
the Plan Year then ending on all Acquisition Loans, and the denominator of which is the sum of the
numerator plus the principal and interest to be paid for all future years on all Acquisition Loans.
The number of future years under any Acquisition



IV-2









 







Loan shall be determined without taking into account any possible extensions or renewal
periods. However, if any Acquisition Loan is repaid with the proceeds of a subsequent Acquisition
Loan, the numerator of the fraction shall not include principal and interest payments on the
original Acquisition Loan to the extent made with the proceeds of the subsequent Acquisition Loan.
If the interest rate under any Acquisition Loan is variable, the interest to be paid in future
years shall be computed by using the interest rate applicable as of the Allocation Date. The
Committee will normally allocate the Financed Shares among the ESOP Accounts of the Members in the
proportion that the Considered Compensation of each Member for the Plan Year bears to the
Considered Compensation of all Members for the Plan Year. However, should there be no Employer
Contribution or an insufficient Employer Contribution to fulfill the Top-Heavy requirements, if
any, for a Plan Year, all shares withdrawn from the Loan Suspense Account for the Plan Year shall
first be allocated to fulfill that requirement; then the remaining withdrawn shares, if any, shall
be allocated under the normal allocation process.



     4.07 Allocation of Financed Shares in Nonmonetary Units. All allocations of Financed Shares
which are withdrawn from the Loan Suspense Account shall be made in nonmonetary units consisting of
shares of Employer Securities. If any allocation includes assets other than Employer Securities,
the allocation to each Member’s Accounts shall include the same proportion of Employer Securities
and value attributable to the other assets. Employer Securities shall be valued at fair market
value, determined as of the end of the Plan Year as of which the allocation is being made.



     4.08 Tender or Exchange Offers. Notwithstanding any other provision of the Plan, if (a)
Financed Shares held in the Loan Suspense Account are tendered by the Trustee pursuant to a tender
or exchange offer or are otherwise sold or exchanged pursuant to, in connection with, or as a
result of a Change of Control as defined below (including but not limited to a sale or exchange
upon a merger or other business combination), (b) cash or other property is received by the Trustee
in exchange for the Financed Shares, and (c) a Change of Control occurs or has occurred in
connection with the tender or exchange offer or the transaction occasioning another sale or
exchange, then the cash consideration received by the Trustee in exchange for the Financed Shares
shall be immediately applied to the payment of the Acquisition Loans to the full extent necessary
to pay in full all outstanding principal and interest under those Acquisition Loans, without regard
to the maturity or other due dates of the principal and interest. If the consideration received by
the Trustee is not sufficient to pay all principal and interest, the entire amount shall be
immediately applied to payment of principal and interest. If and to the extent that the
consideration received by the Trustee is property other than cash, that property shall, to the
extent it may be sold without unreasonable cost, be sold for cash to the extent necessary to
fulfill the requirements above. The cash sales proceeds shall be considered as cash received in
exchange for the Financed Shares and shall be applied as outlined above. The consideration
received in excess of the amounts paid on Acquisition Loans shall be immediately allocated among
the ESOP Accounts of Members in the proportion that the number of Financed Shares in each Member’s
ESOP Account bears to the total number of Financed Shares in all Members’ ESOP Accounts. For
purposes of this Section 4.08 the term “Change of Control” means the occurrence of either of the
following events: (a) a third person, including a group as determined in accordance with Section
13(d)(3) of the Securities Exchange Act of 1943, becomes the



IV-3









 







beneficial owner of shares of the Company having 30% or more of the total number of votes
that may be cast for the election of directors of the Sponsor; or (b) as a result of, or in
connection with, any cash tender offer or exchange offer, merger, or other business combination,
sale of assets, or contested election, or any combination of the foregoing transactions, the
persons who were directors of the Sponsor before the transaction or transactions no longer
constitute a majority of either the Board of Directors or the board of directors of any successor
to the Sponsor.



     4.09 Stock Splits. If the shares of Employer Securities are subdivided, the additional shares
acquired by the Trustee upon the subdivision will be allocated among the Members, former Members
and Beneficiaries with Account balances in proportion to the number of shares of Employer
Securities (of the class with respect to which the subdivision is made) allocated to their ESOP
Accounts as of the record date for the subdivision.



     4.10 Valuation of Trust Fund. The Trustee shall value the Trust Fund on its Valuation Date at
its then fair market value, but without regard to any Contributions made to the Plan after the
preceding Valuation Date, shall determine the amount of income earned or losses suffered by the
Trust Fund and shall determine the appreciation or depreciation of the Trust Fund since the
preceding Valuation Date. The Trustee shall separate the Trust Fund into the various investment
funds or accounts in which it is held, if more than one, and shall then allocate as of the
Valuation Date the income earned and losses suffered and the appreciation or depreciation in the
assets of the Trust Fund for the period since the last preceding Valuation Date. The allocation
shall be among the Members and former Members who have undistributed Account balances based upon
their Account balances in each of the various investment funds or accounts, if more than one, as of
the last Valuation Date reduced, as appropriate, by amounts used from the investment fund or
account or Trust to make a withdrawal or distribution or any other transaction which is properly
chargeable to the Member’s or former Member’s Account during the period since the last Valuation
Date. The Committee, by resolution, may elect in lieu of the allocation method described above to
use a unit allocation method, a separate account method or any other equitable method if it
announces the method of allocation to the Members prior to the beginning of the period during which
it is first used.



     4.11 Interim Valuation of Trust Fund. If at any time in the interval between Valuation Dates,
one or more withdrawals or one or more distributions are to be made and the Committee determines
that an interim allocation is necessary to prevent discrimination against those Members and former
Members who are not receiving funds, the Trustee is to perform a valuation of a portion or all of
the Trust Fund as of a date selected by the Committee which is administratively practical and near
the date of withdrawals or distributions in the same manner as it would if it were a scheduled
Valuation Date. That date may be before or after any particular distribution or withdrawal. The
Committee shall then allocate as of that date any income or loss and any appreciation or
depreciation to the various Accounts of each of the Members or former Members in the same manner as
it would if it were a scheduled Valuation Date. Then without regard to the language in Section
6.1, all distributions made after that date and prior to the next Valuation Date, even though the
event causing it occurred earlier, shall be based upon the Accounts as adjusted by the interim
valuation.



IV-4









 





     4.12 Rights of Members or Former Members in Trust Fund. No allocation, adjustment, credit or
transfer shall ever vest in any Member or former Member any right, title or interest in the Trust
Fund except at the times and upon the terms and conditions specified in this Plan. The Trust Fund
shall, as to all Accounts, be a commingled fund.




IV-5









 








ARTICLE V




VESTING




     A Member or former Member has a fully Nonforfeitable Interest in his entire Account balance
when he (a) incurs a Disability on or prior to the date of his Separation From Service, (b) attains
his Normal Retirement Age on or prior to the date of his Separation From Service, or (c) incurs a
Separation From Service due to death. A Member or former Member shall have a Nonforfeitable
Interest in the following percentage of amounts credited to his ESOP Account and Employer
Contribution Account:



	 	 	 	 	 
	Years of Active Service Completed by the	 	Nonforfeitable
	Member or Former Member	 	Interest Percentage
	 
	 	 	 	 
	Less than three

	 	 	0	 
	Three but less than four

	 	 	20	 
	Four but less than five

	 	 	40	 
	Five but less than six

	 	 	60	 
	Six but less than seven

	 	 	80	 
	Seven or more

	 	 	100	 






     Subject to the possible application of Section B.2.3 of Appendix B or Section 12.05, except as
specified above, a Member or former Member has no vested interest in his Account balance and shall
not be entitled to any benefits under the Plan upon or following his Separation From Service.




V-1









 








ARTICLE VI




BENEFITS




     6.01 Valuation of Accounts for Distributions. For the purpose of making a distribution, a
Member’s Employer Contribution Account shall be his Employer Contribution Account as valued as of
the Valuation Date that is coincident with or next preceding the event which caused the
distribution, adjusted only for Contributions, dividends on Employer Securities, purchases of
Employer Securities as described in Section 4.01, and distributions, if any, made between the
Valuation Date and that event. For the purpose of making a distribution, a person’s ESOP Account
shall be his ESOP Account as of the date of distribution unless he is to receive cash instead of
shares. In that event it shall be the net cash proceeds of the sale of the Employer Securities
when the Trustee sells it in order to make the distribution.



     6.02 Retirement Benefit. An Employee who has a Separation From Service on or after he attains
his Retirement Age is entitled to receive 100 percent of amounts credited to all of his Accounts.



     6.03 Disability Benefit. Upon an Employee’s Separation From Service due to a Disability, he
is entitled to receive 100 percent of all of his Accounts.



     6.04 Severance Benefit. Upon an Employee’s Separation From Service for any reason other than
death, Separation From Service after attaining Retirement Age or due to Disability, he is entitled
to receive his Nonforfeitable Interest in amounts credited to his ESOP Account and Employer
Contribution Account.



     6.05 Death Benefit. If a Member or former Member dies, the death benefit payable to his
Beneficiary shall be 100 percent of the remaining amount in all of his Accounts as of the day he
dies.



     6.06 Distribution Methods Available. Subject to Section 6.09, the distribution methods
available under the Plan are (a) a lump sum payment or (b) periodic installment payments.



     If a Member or former Member elects periodic installment payments, his Account balances shall
be paid in substantially equal semi-annual or annual periodic installments (as elected by him) for
a specified number of years which may not exceed his life expectancy or the joint and last survivor
life expectancy of him and his Beneficiary. Life expectancies will be determined, under
Regulations issued under section 79 of the Code, as of the time payments commence. Upon the death
of a Member or former Member prior to the complete distribution of his Account balances, his
Beneficiary may elect to receive the Beneficiary’s interest in the Accounts in (a) an immediate
lump sum payment or (b) installment payments for any period not in excess of the period (if any)
selected by the Member or former Member.



     6.07 Election of Distribution Method. Each Member or former Member shall have the right to
elect the method of distribution applicable to him. An election of an option available



VI-1









 







under this Article shall be made within the 90-day period that ends on the Member’s or former
Member’s Annuity Starting Date, and may be rescinded or changed by a Member or former Member at any
time prior to the distribution. An election, change, or rescission of an option must be made by
executing and properly filing the form or forms approved by the Committee. Proof of age and other
information may be required by the Committee.



     6.08 Default Distribution Method. If a Member or former Member who is not subject to Section
6.09 does not elect a different distribution method, subject to Section 6.13, his Account balances
will be distributed in substantially equal periodic payments (not less frequently than annually)
over a period not longer than the greater of (a) five years, or (b) in the case of a Member or
former Member whose Account balances are in excess of $800,000.00, five years plus one additional
year (but not more than five additional years) for each $160,000.00 or fraction thereof by which
his Account balances exceed $800,000.00. The dollar amounts listed in the preceding sentence will
be adjusted by the Secretary of Treasury from time to time.



     6.09 Immediate Payment of Small Amount Upon Separation From Service. This Section 6.09
applies notwithstanding any other provision of the Plan other than Section 6.11. Each Member or
former Member whose Nonforfeitable Interest in his Account balance at the time of a distribution to
him on account of his Separation From Service is, in the aggregate, less than or equal to $5,000.00
but greater than $1,000.00, shall be paid as soon as administratively practicable in the form of an
immediate single sum payment in shares of Employer Securities with respect to amounts invested in
Employer Securities or in cash and/or as a Direct Rollover, as elected by him under Section 6.11,
or in an Automatic Rollover. Each Member or former Member whose Nonforfeitable Interest in his
Account balance at the time of a distribution to him on account of his Separation From Service is,
in the aggregate, less than or equal to $1,000.00 but greater than $200.00, shall be paid as soon
as administratively practicable in the form of an immediate single sum payment in shares of
Employer Securities with respect to amounts invested in Employer Securities or in cash and/or as a
Direct Rollover, as elected by him under Section 6.11. Each Member or former Member whose
Nonforfeitable Interest in his Account balance at the time of a distribution to him on account of
his Separation From Service is, in the aggregate, less than or equal to $200.00, shall be paid as
soon as administratively practicable in the form of an immediate single sum cash payment. If a
Member’s or former Member’s Nonforfeitable Interest in his Account balance payable upon his
Separation From Service is zero (because he has no Nonforfeitable Interest in his Account balance),
he will be deemed to have received an immediate distribution of his entire Nonforfeitable Interest
in his Account balance.



     If a Member or former Member who is subject to this Section 6.09 and whose Plan benefit is
less than or equal to $5,000.00 but greater than $1,000.00 does not furnish instructions in
accordance with Plan procedures to receive an immediate single sum payment in shares of Employer
Securities or in cash and/or as a Direct Rollover within 45 days after he has been given
distribution election forms, his entire Plan benefit will be paid in an Automatic Rollover. If a
Member or former Member who is subject to this Section 6.09 and whose Plan benefit is less than or
equal to $1,000.00 but greater than $200.00 does not furnish instructions in accordance with Plan
procedures to directly roll over his Plan benefit within 45 days after he has been given
distribution election forms, he will be deemed to have elected to receive an immediate single sum
cash payment of his entire Plan benefit. The term “Automatic Rollover” shall mean a



VI-2









 







distribution in cash made by the Plan in a direct rollover to an individual retirement plan
designated by the Sponsor for the Member or former Member.



     6.10 Forms of Payment Available. A distribution from the Plan shall be made in the form of
cash or, if the amounts invested in Employer Securities exceed $200.00, in shares of Employer
Securities as elected by the Member, former Member or his Beneficiary. No fractional shares of
Employer Securities will be distributed from the Plan.



     6.11 Direct Rollover Option. To the extent required under Regulations, a Distributee has the
right to direct that any portion of his Eligible Rollover Distribution will be directly paid to an
Eligible Retirement Plan specified by him that will accept the Eligible Rollover Distribution.



     6.12 Time of Distribution. Notwithstanding any other provision of the Plan, all benefits
payable under the Plan shall be distributed, or commence to be distributed, in compliance with the
following provisions:



          (a) If a Member or former Member has a Separation From Service after his attainment of
Retirement Age or due to Disability or death and he or his Beneficiary elects to receive a
distribution from the Plan, the distribution of his Account balances will commence not later than
one year after the close of the Plan Year in which the Separation From Service occurs. If a Member
or former Member has a Separation From Service not described in the preceding sentence and he
elects to receive a distribution from the Plan, the distribution of his Account balances will
commence not later than one year after the close of the Plan Year which is the fifth Plan Year
following the Plan Year in which the Separation From Service occurs (provided that he is not
reemployed by the Employer before the distribution is required to begin).



          (b) Compliance with Section 401(a)(9). All distributions under the Plan will comply with the
requirements of Section 6.13.



          (c) Compliance with Section 401(a)(14). Unless the Member or former Member otherwise elects,
the payment of benefits under the Plan to the Member or former Member will begin not later than the
60th day after the close of the Plan Year in which occurs the latest of (a) the date on which the
Member or former Member attains the later of age 62 or Retirement Age, (b) the tenth anniversary
of the year in which the Member or former Member commenced participation in the Plan, or (c) the
Member’s or former Member’s Separation From Service. Notwithstanding the foregoing, a Member or
former Member must file with the Committee a claim for benefits under the Plan before payment of
benefits to him (other than pursuant to Section 6.09 or Section 6.13(a)) will commence.



     6.13 Required Distributions.




     Notwithstanding any other provision of the Plan, all benefits payable under the Plan
shall be distributed, or commence to be distributed, in compliance with the following
provisions:



VI-3









 






     (a) Required Distributions for Certain Persons Who are 701/2 or Older. Unless a
Member’s or former Member’s entire Nonforfeitable Interest in his Plan benefit is
distributed to him in a single sum no later than his Required Beginning Date or in the form
of an annuity purchased from an insurance company, the Member’s or former Member’s
Nonforfeitable Interest in his Plan benefit must begin to be distributed, not later than his
Required Beginning Date, over the life of the Member or former Member, or the joint lives of
the Member or former Member and his Section 401(a)(9) Beneficiary, or over a period not
extending beyond the life expectancy of the Member or former Member or the joint and last
survivor expectancy of the Member or former Member and his Section 401(a)(9) Beneficiary.
The distribution required to be made on or before the Member’s or former Member’s Required
Beginning Date shall be the distribution required for his first Distribution Calendar Year.
The minimum required distribution for other Distribution Calendar Years, including the
required minimum distribution for the Distribution Calendar Year in which the Member’s or
former Member’s Required Beginning Date occurs, must be made on or before December 31 of
that Distribution Calendar Year. In the case of a benefit payable in a form other than a
single sum or an annuity purchased from an insurance company, the amount that must be
distributed for a Distribution Calendar Year is an amount equal to that specified in
Paragraph (b) of this Section 6.13.




     (b) Required Minimum Distributions. If a Member’s or former Member’s Required
Beginning Date is before the date on which he incurs a Separation From Service, the Member
or former Member (if he is then alive) must be paid either the entire amount credited to his
Accounts or annual distributions from the Plan in the amounts required under section
401(a)(9) of the Code and Regulations thereunder commencing no later than his Required
Beginning Date until his entire interest under the Plan has been distributed under this
Article VI. The distribution required to be made on or before the Member’s or former
Member’s Required Beginning Date shall be the distribution required for his first
Distribution Calendar Year. The minimum required distribution for other Distribution
Calendar Years, including the required minimum distribution for the Distribution Calendar
Year in which the Member’s or former Member’s Required Beginning Date occurs must be made on
or before December 31 of that Distribution Calendar Year. The amount that must be
distributed for a Distribution Calendar Year is an amount equal to (1) the Member’s or
former Member’s Account balances as of the last Valuation Date in the calendar year
immediately preceding the Distribution Calendar Year, increased by any contributions or
forfeitures allocated and made to the Accounts during such immediately preceding calendar
year after the Valuation Date, and decreased by distributions made during such immediately
preceding calendar year after the Valuation Date, divided by (2) the Member’s or former
Member’s Applicable Distribution Period.




     (c) Distribution Deadline for Death Benefit When Member or Former Member Dies
Before His Distributions Begin. If a Member or former Member dies before the date
distribution of his Nonforfeitable Interest in his Plan benefit begins, his



VI-4









 






entire Nonforfeitable Interest in his Plan benefit will be distributed, or begin to be
distributed, to his Section 401(a)(9) Beneficiary no later than as follows:




          (1) Unless clause (3) applies, if the Member’s or former Member’s surviving Spouse is
the Member’s or former Member’s sole Section 401(a)(9) Beneficiary, then distributions to
the surviving Spouse will begin by December 31 of the calendar year immediately following
the calendar year in which the Member or former Member died, or by December 31 of the
calendar year in which the Member or former Member would have attained age 70 1/2 , if
later.




          (2) If the Member’s or former Member’s surviving Spouse is not the Member’s or former
Member’s sole Section 401(a)(9) Beneficiary and the payment of Plan death benefits to the
Section 401(a)(9) Beneficiary will not be in the form of a single sum or a commercial
annuity, then distributions to the Section 401(a)(9) Beneficiary will begin by December 31
of the calendar year immediately following the calendar year in which the Member or former
Member died.




          (3) If the payment of a Plan death benefit to the Section 401(a)(9) Beneficiary will be
in the form of a single sum, then the Member’s or former Member’s entire Nonforfeitable
Interest in his Plan benefit will be distributed by December 31 of the calendar year
containing the fifth anniversary of the Member’s or former Member’s death.




          (4) If there is no Section 401(a)(9) Beneficiary as of September 30 of the calendar
year following the calendar year of the Member’s or former Member’s death, then the Member’s
or former Member’s entire Nonforfeitable Interest in his Plan benefit will be distributed by
December 31 of the calendar year containing the fifth anniversary of the Member’s or former
Member’s death.




          (5) If the Member’s or former Member’s surviving Spouse is the Member’s or former
Member’s sole Section 401(a)(9) Beneficiary and the surviving Spouse dies after the Member
or former Member but before distributions to the surviving Spouse begin, this Section
6.13(c), other than Section 6.13(c)(1), will apply as if the surviving Spouse were the
Member.




     Unless the Member’s or former Member’s interest is distributed in the form of an
annuity or in a single sum on or before the Required Beginning Date, as of the first
Distribution Calendar Year distributions will be made in accordance with Paragraph (b) of
this Section 6.13.




     (d) Distribution of Death Benefit When Member or Former Member Dies On or After His
Required Beginning Date. If a Member or former Member dies on or after his Required
Beginning Date, his Plan benefit must be distributed to his Section 401(a)(9) Beneficiary at
least as rapidly as the method of payment of minimum required distributions being used as of
the date of his death.



VI-5









 






     (e) Limitations on Death Benefits. Benefits payable under the Plan shall not
be provided in any form that would cause a Member’s or former Member’s death benefit to be
more than incidental. Any distribution required to satisfy the incidental benefit
requirement shall be considered a required distribution for purposes of section 401(a)(9) of
the Code.




     (f) Requirements in the Case of a Commercial Annuity. If a Member’s or former
Member’s Nonforfeitable Interest in his Plan benefit is distributed in the form of an
annuity purchased from an insurance company, distributions under the annuity contract will
be made in accordance with the requirements of section 401(a)(9) of the Code and Department
of Treasury Regulations.




     (g) Compliance with Section 401(a)(9). All distributions under the Plan will
be made in accordance with the requirements of section 401(a)(9) of the Code and all
Regulations promulgated thereunder, including, effective January 1, 2003, the Final Section
401(a)(9) Regulations, including sections 1.401(a)(9)-1 through 1.401(a)(9)-9 of the Final
Section 401(a)(9) Regulations. The provisions of the Plan reflecting section 401(a)(9) of
the Code override any distribution options in the Plan inconsistent with section 401(a)(9)
of the Code.



     6.14 Consent to Distribution Upon Separation From Service. Notwithstanding any other
provision of the Plan, no benefit shall be distributed or commence to be distributed to a Member or
former Member prior to his attainment of the later of age 62 or Retirement Age without his consent,
unless the benefit is payable in a single sum under Section 6.09. Any such consent shall be valid
only if given not more than 90 days prior to the Member’s or former Member’s Annuity Starting Date
and after his receipt of the notice regarding benefits described in Section 6.15.



     6.15 Information Provided to Members. Information regarding the form of benefits available
under the Plan shall be provided to Members or former Members in accordance with the following
provisions:



          (a) General Information. Except as otherwise provided in paragraph (c), the Sponsor shall
provide each Member or former Member with a written general explanation or description of (1) the
eligibility conditions and other material features of the optional forms of benefit available under
the Plan, (2) the relative values of the optional forms of benefit available under the Plan, and
(3) the Member’s or former Member’s right, if any, to defer receipt of the distribution.



          (b) Time for Giving Notice. The written general explanation or description regarding any
optional forms of benefit available under the Plan shall be provided to a Member or former Member
no less than 30 days and no more than 90 days before his Annuity Starting Date unless he legally
waives this requirement.



     Exception for Members with Small Benefit Amounts. Notwithstanding the preceding provisions of
this Section, no information regarding any optional forms of benefit otherwise



VI-6









 







available under the Plan shall be provided to the Member or former Member if his benefit is
payable in a single sum under Section 6.09.



     6.16 Designation of Beneficiary. Each Member has the right to designate and to revoke the
designation of his Beneficiary or Beneficiaries. Each designation or revocation must be evidenced
by a written document in the form required by the Committee, signed by the Member and filed with
the Committee. If no designation is on file at the time of a Member’s death or if the Committee
determines that the designation is ineffective, the designated Beneficiary shall be the Member’s
Spouse, if living, or if not, the executor, administrator or other personal representative of the
Member’s estate.



     If a Member is considered to be married under local law, the Member’s designation of any
Beneficiary, other than the Member’s Spouse, shall not be valid unless the Spouse acknowledges in
writing that he or she understands the effect of the Member’s beneficiary designation and consents
to it. The consent must be to a specific Beneficiary. The written acknowledgement and consent
must be filed with the Committee, signed by the Spouse and a witness who must be a notary public.
However, if the Spouse cannot be located or there exist other circumstances as described in
sections 401(a)(11) and 417(a)(2) of the Code, the requirement of the Member’s Spouse’s
acknowledgement and consent may be waived. If a Beneficiary other than the Member’s Spouse is
named, the designation shall become invalid if the Member is later determined to be married under
local law, the Member’s missing Spouse is located or the circumstances which resulted in the waiver
of the requirement of obtaining the consent of the Member’s Spouse no longer exist.



     6.17 Distribution to Minor or Incapacitated Person. If the Committee determines that any
person to whom a payment is due is a minor or unable to care for his affairs because of physical or
mental disability, it shall have the authority to cause the payments to be made to the person’s
parent, legal guardian, Spouse, brother, sister or other person whom the Committee determines. The
Committee and the Trustee shall not be responsible to oversee the application of those payments.
Payments made pursuant to this power shall be a complete discharge of all liability under the Plan
and the Trust and the obligations of the Employer, the Trustee, the Trust and the Committee.



     6.18 Distribution Pursuant to Qualified Domestic Relations Order. The Committee will instruct
the Trustee to pay benefits in accordance with the terms of any order that has been determined, in
accordance with Plan procedures, to be a Qualified Domestic Relations Order. A Qualified Domestic
Relations Order may require the payment of an immediate lump sum (in cash or in shares of Employer
Securities) to an alternate payee even if the Member or former Member is not then entitled to
receive an immediate payment of Plan benefits.



     6.19 Distribution Prior to Separation From Service. Prior to his Separation From Service, a
Member may withdraw part or all of his Nonforfeitable Interest in his Account balances on or after
the date on which he attains age 701/2.



     6.20 Claims Procedure. When a benefit is due, the Member, former Member or Beneficiary should
submit a claim to the office designated by the Committee to receive claims.



VI-7









 




Under normal circumstances, the Committee will make a final decision as to a claim within 90
days after receipt of the claim. If the Committee notifies the claimant in writing during the
initial 90-day period, it may extend the period up to 180 days after the initial receipt of the
claim. The written notice must contain the circumstances necessitating the extension and the
anticipated date for the final decision. If a claim is denied during the claims period, the
Committee must notify the claimant in writing. The denial must include the specific reasons for it,
the Plan provisions upon which the denial is based, 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 the Plan’s review procedures and time limits, including a statement
of the claimant’s right to bring a civil action under section 502(a) of ERISA.




     If a Member’s, former Member’s or Beneficiary’s claim is denied and he wants a review, he must
apply to the Committee in writing. That application can include any arguments, written comments,
documents, records, and other information relating to the claim for benefits. In addition, the
claimant is entitled to receive on request and free of charge reasonable access to and copies of
all information relevant to the claim. For this purpose, “relevant” means information that was
relied on in making the benefit determination or that was submitted, considered or generated in the
course of making the determination, without regard to whether it was relied on, and information
that demonstrates compliance with the Plan’s administrative procedures and safeguards for assuring
and verifying that Plan provisions are applied consistently in making benefit determinations. The
Committee must take into account all comments, documents, records, and other information submitted
by the claimant relating to the claim, without regard to whether the information was submitted or
considered in the initial benefit determination. The claimant may either represent himself or
appoint a representative, either of whom has the right to inspect all documents pertaining to the
claim and its denial. The Committee can schedule any meeting with the claimant or his
representative that it finds necessary or appropriate to complete its review. The request for
review must be filed within 90 days after the denial. If it is not, the denial becomes final. If a
timely request is made, the Committee must make its decision, under normal circumstances, within 60
days of the receipt of the request for review. However, if the Committee notifies the claimant
prior to the expiration of the initial review period, it may extend the period of review up to 120
days following the initial receipt of the request for a review. All decisions of the Committee must
be in writing and must include the specific reasons for its action, the Plan provisions on which
its decision is based, and a statement that the claimant is entitled to receive, upon request and
free of charge, reasonable access to, and copies of, all documents, records, and other information
relevant to the claimant’s claim for benefits, and a statement of the claimant’s right to bring an
action under section 502(a) of ERISA If a decision is not given to the claimant within the review
period, the claim is treated as if it were denied on the last day of the review period.




VI-8









 








ARTICLE VII




ACTIVE SERVICE




     7.01 When Active Service Begins. An Employee shall receive one Year of Active Service credit
for eligibility and vesting purposes each Computation Period described below in which he has 1,000
or more Hours of Employment with the Employer and all Affiliated Employers or a predecessor
employer if the Employer maintains one or more of the predecessor’s plans or that treatment is
required under the Regulations.



     7.02 Eligibility and Vesting Computation Periods. The initial Computation Period for
eligibility is the 12-consecutive-month period starting with the Employee’s first day of employment
(or reemployment) for which he is entitled to be credited with one Hour of Employment. The
eligibility Computation Period then shifts to the Plan Year that includes the Employee’s first
anniversary of employment (or reemployment) and remains on that schedule. The Computation Period
for vesting purposes is the Plan Year.



     7.03 When An Employee Severs Service. An Employee shall sever Service as of the beginning of
a Computation Period if he is not credited with at least 501 Hours of Employment with the Employer
and all Affiliated Employers during the Computation Period unless he is credited with less than 501
Hours of Employment because: (a) he is transferred; (b) he is on an approved leave of absence that
does not exceed 18 months and he returns to employment immediately following the leave of absence;
or (c) he is temporarily laid off, and he returns to employment immediately following the temporary
layoff. Solely for the purpose of determining whether an Employee has severed Service, if the
Employee is absent from Service because of her pregnancy, the birth of her child, his or her
receipt of a child through adoption, or his or her caring for the child immediately after birth or
adoption, he or she shall be entitled to the Hours of Employment that he or she would have received
but for that absence for one year after the absence began. Eight hours of Service shall be
credited for each day of absence. But, no more than a total of 501 hours can be credited. The 501
hours shall be credited to the Computation Period in which the absence first begins if they shall
prevent a severance from Service in that period; otherwise, the 501 hours shall be credited to the
next Computation Period.



     7.04 Periods of Severance. If an Employee severs Service at a time when: (a) he has no
vested interest in Employer Contributions allocated to his Accounts, (b) the Period of Severance is
continuous for five years or more, and (c) the Period of Severance is equal to or longer than the
prior Period of Service, then any prior Period of Service shall not count as Active Service for
eligibility or vesting.



     7.05 Employment Records Conclusive. The employment records of the Employer shall be
conclusive for all determinations of Active Service.



     7.06 Service Credit Required under Federal Law. An Employee shall be credited with such
additional years of Active Service as is required under any applicable law of the United States.




VII-1









 








ARTICLE VIII




FORFEITURES




     8.01 Forfeiture by Lost Former Members or Beneficiaries. If a person who is entitled to a
distribution cannot be located during a reasonable search after the Trustee has initially attempted
making payment, that person’s Accounts shall be forfeited. However, if at any time prior to the
termination of the Plan and the complete distribution of the Trust assets, the former Member or
Beneficiary files a claim with the Committee for the forfeited benefit, that benefit shall be
reinstated (without adjustment for Trust income or losses during the forfeited period) effective as
of the date of the receipt of the claim. Following the Employer’s contribution of the reinstated
amount, it shall be paid to the former Member or Beneficiary under the method permitted in Section
6.06 selected by him.



     8.02 Forfeiture on Termination of Participation.



          (a) If as a result of his Separation From Service a former Member receives (or is deemed to
receive under Section 6.09), a distribution of his entire Nonforfeitable Interest in amounts
credited to his Accounts, the nonvested amount in his ESOP Account and Employer Contribution
Account will be immediately forfeited upon the distribution.



          (b) If a former Member receives no distribution as a result of his Separation From Service,
the nonvested amount in amounts credited to his ESOP Account and Employer Contribution Account will
be permanently forfeited (with no right of reinstatement under Section 8.04) on the later of the
date of his Separation From Service or the date on which he has incurred a Period of Severance of
five consecutive years.



     8.03 Allocation of Forfeitures. At the time a forfeiture occurs, the amount forfeited will
first be used to reinstate any Accounts required to be reinstated under Section 8.01 or 8.04, and
any remaining amount will be allocated to Members at the same time and in the same way as Employer
Contributions.



     8.04 Restoration of Forfeited Amounts. If a Member or former Member who forfeited any portion
of his ESOP Account and Employer Contribution Account pursuant to the provisions of Section 8.02
resumes employment covered under the Plan, then the following provisions shall apply:



          (a) Repayment Requirement. The Member’s ESOP Account and Employer Contribution Account shall
be restored if he repays to the Trustee, in cash, the full amount of any distribution from the ESOP
Account and Employer Contribution Account with respect to which the forfeiture arose. A Member
who is deemed to have received a distribution under Section 6.09 (because he had no Nonforfeitable
Interest in amounts credited to his Account) shall be deemed to have repaid his Account balance in
shares of Common Stock upon his reemployment if he is reemployed before the earlier of the dates
specified in clauses (i) and (ii) of the preceding sentence. Any such repayment must be made prior
to the earlier of (i) the date on which he



VIII-1









 







incurs a Period of Severance of five years commencing after his distribution, or (ii) the
fifth anniversary of the first date on which the Member is subsequently re-employed by the
Employer.



          (b) Amount Restored. The amount to be restored under the preceding provisions of this Section
shall be the dollar value of the amount in the Member’s ESOP Account and Employer Contribution
Account, both the amount distributed and the amount forfeited (determined as of the date of the
distribution or deemed distribution), unadjusted by any subsequent gains or losses. The Member’s
ESOP Account and Employer Contribution Account balance shall be restored as soon as
administratively practicable after the later of the date the Member resumes employment covered
under the Plan or the date on which any required repayment is completed. No distribution shall be
made to a Member from his ESOP Account and Employer Contribution Account as a result of a prior
Separation From Service after the restoration of such Account has been effectuated.



          (c) No Other Basis for Restoration. Except as otherwise provided above, an Employee’s ESOP
Account and Employer Contribution Account shall not be restored upon his resumption of employment.



     8.05 Forfeiture of Financed Shares. If a portion of a Member’s or former Member’s Account is
forfeited, Financed Shares allocated to that Account shall be forfeited only after other assets. If
the Financed Shares allocated to a Member’s or former Member’s Account consist of more than one
class of Employer Securities, the same proportion of each class shall be forfeited.




VIII-2









 








ARTICLE IX




ADMINISTRATION OF THE PLAN




     9.01 Appointment, Term of Service & Removal. The Board shall appoint a Committee to
administer this Plan. The members shall serve until their resignation, death or removal. Any
member may resign at any time by mailing a written resignation to the Board. Any member may be
removed by the Board, with or without cause. Vacancies may be filled by the Board from time to
time.



     9.02 Powers. The Committee is a fiduciary. It has the exclusive responsibility for the
general administration of the Plan, and has all powers necessary to accomplish that purpose,
including but not limited to the following rights, powers, and authorities:



          (a) To make rules for administering the Plan so long as they are not inconsistent with the
terms of the Plan;



          (b) To construe all provisions of the Plan;



          (c) To correct any defect, supply any omission, or reconcile any inconsistency which may
appear in the Plan;



          (d) To select, employ, and compensate at any time any consultants, actuaries, accountants,
attorneys, and other agents and employees the Committee believes necessary or advisable for the
proper administration of the Plan; any firm or person selected may be a disqualified person but
only if the requirements of section 4975(d) of the Code have been met;



          (e) To determine all questions relating to eligibility, Active Service, Considered
Compensation, allocations and all other matters relating to benefits or Members’ or former Members’
entitlement to benefits;



          (f) To determine all controversies relating to the administration of the Plan, including but
not limited to any differences of opinion arising between an Employer and the Trustee or a Member,
or any combination of them and any questions it believes advisable for the proper administration of
the Plan;



          (g) To direct the Trustee in all matters relating to the payment of Plan benefits; and



          (h) To delegate any clerical or recordation duties of the Committee as the Committee believes
is advisable to properly administer the Plan.


The actions of the Committee in exercising all of the rights, powers, and authorities set out in
this Section and all other Sections of this Plan, when performed in good faith and in its sole
judgment, shall be final, conclusive and binding on all parties.




IX-1









 








     9.03 Organization. The Committee may select, from among its members, a chairman, and may
select a secretary. The secretary need not be a member of the Committee. The secretary shall keep
all records, documents and data pertaining to its administration of the Plan and Trust.



     9.04 Quorum and Majority Action. A majority of the Committee constitutes a quorum for the
transaction of business. The vote of a majority of the members present at any meeting shall decide
any question brought before that meeting. In addition, the Committee may decide any question by a
vote, taken without a meeting, of a majority of its members.



     9.05 Signatures. The chairman, the secretary and any one or more of the members of the
Committee to which the Committee has delegated the power shall each, severally, have the power to
execute any document on behalf of the Committee, and to execute any certificate or other written
evidence of the action of the Committee. The Trustee, after it is notified of any delegation of
power in writing, shall accept and may rely upon any document executed by the appropriate member or
members as representing the action of the Committee until the Committee files a written revocation
of that delegation of power with the Trustee.



     9.06 Disqualification of Committee Member. A member of the Committee who is also a Member of
this Plan shall not vote or act upon any matter relating solely to himself.



     9.07 Disclosure of Records. The Committee shall make available to each Member, former Member
and Beneficiary for his examination those records, documents and other data required under ERISA,
but only at reasonable times during business hours. No Member, former Member or Beneficiary has
the right to examine any data or records reflecting the compensation paid to any other Member,
former Member or Beneficiary. The Committee is not required to make any other data or records
available other than those required by ERISA.



     9.08 Standard of Performance. The Committee and each of its members shall use 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 conducting his business as the
administrator of the Plan.



     9.09 Liability of Committee and Liability Insurance. No member of the Committee shall be
liable for any act or omission of any other member of the Committee, the Trustee, or any other
agent appointed by the Committee unless required by the terms of ERISA or another applicable state
or federal law under which liability cannot be waived. No member of the Committee shall be liable
for any act or omission of his own unless required by ERISA or another applicable state or federal
law under which liability cannot be waived.



     If the Committee directs the Trustee to do so, it may purchase out of the Trust Fund insurance
for the members of the Committee, for any other fiduciaries appointed by the Committee and for the
Trust Fund itself to cover liability or losses occurring because of the act or omission of any one
or more of the members of the Committee or any other fiduciary appointed under this Plan. But,
that insurance must permit recourse by the insurer against the



IX-2









 







members of the Committee or the other fiduciaries concerned if the loss is caused by breach of
a fiduciary obligation by one or more members of the Committee or other fiduciary.



     9.10 Exemption from Bond. No member of the Committee is required to give bond for the
performance of his duties unless required by a law which cannot be waived.



     9.11 Compensation. The Committee shall serve without compensation but shall be reimbursed by
the Employer for all expenses properly incurred in the performance of their duties unless the
Sponsor elects to have those expenses paid from the Trust Fund. Each Employer shall pay that part
of the expense as determined by the Committee in its sole judgment.



     9.12 Persons Serving in Dual Fiduciary Roles. Any person, group of persons, corporation, firm
or other entity, may serve in more than one fiduciary capacity with respect to this Plan, including
serving as both Trustee and as a member of the Committee.



     9.13 Administrator. For all purposes of ERISA, the administrator of the Plan is the Sponsor.
The administrator has the final responsibility for compliance with all reporting and disclosure
requirements imposed under all applicable federal or state laws and regulations.



     9.14 Standard of Judicial Review of Committee Actions. The Committee has full and absolute
discretion in the exercise of each and every aspect of its authority under the Plan, including
without limitation, the authority to determine any person’s right to benefits under the Plan, the
correct amount and form of any such benefits, the authority to decide any appeal, the authority to
review and correct the actions of any prior administrative committee, and all of the rights,
powers, and authorities specified in this Article IX and the Plan. Notwithstanding, any provision
of law or any explicit or implicit provision of this document or any action taken, or ruling or
decision made, by the Committee in the exercise of any of its powers and authorities under the Plan
shall be final and conclusive as to all parties other than the Sponsor or Trustee, including
without limitation all Members, former Members and Beneficiaries, regardless of whether the
Committee or one or more members thereof may have an actual or potential conflict of interest with
respect to the subject matter of such action, ruling, or decision. No such final action, ruling,
or decision of the Committee shall be subject to de novo review in any judicial proceeding; and no
such final action, ruling, or decision of the Committee may be set aside unless it is held to have
been arbitrary and capricious by a final judgment of a court having jurisdiction with respect to
the issue.



     9.15 Indemnification of Committee by the Sponsor. The Sponsor shall indemnify and hold
harmless the Committee, the Committee members, and any persons to whom the Committee has allocated
or delegated its responsibilities in accordance with the provisions hereof, as well as any other
fiduciary who is also an officer, director, or Employee of an Employer, and hold each of them
harmless from and against all claims, loss, damages, expense, and liability arising from their
responsibilities in connection with the administration of the Plan which is not otherwise paid or
reimbursed by insurance, unless the same shall result from their own willful misconduct.




IX-3









 








ARTICLE X




VOTING OF EMPLOYER SECURITIES AND TENDER OFFERS




     10.01 Voting of Employer Securities. As the Employer has Registration Type Securities, each
Member, former Member or Beneficiary is entitled to direct the Trustee as to the manner in which
voting rights under Employer Securities that are credited to his Accounts (both vested and
unvested) are to be exercised with respect to any matter.



     Each Member, former Member and Beneficiary who has a voting right hereunder shall have the
right to direct the Trustee as to the manner in which the Trustee is to vote the number of shares
of the Employer Securities reflecting his proportional interest in the Employer Securities held in
the Trust (both vested and unvested). Directions from a Member, former Member or Beneficiary to
the Trustee concerning the voting of the Employer Securities shall be communicated in writing, or
by mailgram or similar means. Upon its receipt of the directions, the Trustee shall vote the
shares of the Employer Securities reflecting the Member’s, former Member’s or Beneficiary’s
proportional interest in the Employer Securities held in the Trust as directed by him. The Trustee
shall vote shares of the Employer Securities reflecting such Member’s, former Member’s or
Beneficiary’s proportional interest in the Employer Securities held in the Trust (both vested and
unvested) for which it has received no directions from him in the same proportion on each issue as
it votes those shares for which it received voting directions from Members, former Members and
Beneficiaries. The Trustee shall vote shares of the Employer Securities not credited to Members’,
former Members’ or Beneficiaries’ Accounts in the same proportion on each issue as it votes those
shares credited to Members’, former Members’ or Beneficiaries’ Accounts for which it received
voting directions from Members, former Member or Beneficiaries.



     10.02 Tender Offers. This Section 10.02 applies to the extent that Section 4.08 does not
apply. Upon the commencement of a tender offer for any securities held in the Trust that are the
Employer Securities, the Sponsor shall notify each Member, former Member or Beneficiary of the
tender offer and utilize its best efforts to timely distribute or cause to be distributed to each
Member, former Member or Beneficiary the same information that is distributed to other stockholders
of the Sponsor in connection with the tender offer, and, after consulting with the Trustee, shall
provide and pay for a means by which the Member, former Member or Beneficiary may direct the
Trustee whether or not to tender the Employer Securities credited to his vested and unvested
Accounts. The Sponsor shall provide the Trustee with a copy of any material provided to the
Members, former Members and Beneficiaries and shall certify to the Trustee that the materials have
been mailed or otherwise sent to Members, former Members and Beneficiaries.



     Each Member, former Member and Beneficiary shall have the right to direct the Trustee to
tender or not to tender some or all of the shares of the Employer Securities reflecting his
proportional interest in the Employer Securities held in the Trust (both vested and unvested).
Directions from a Member, former Member or Beneficiary to the Trustee concerning the tender of the
Employer Securities shall be communicated in writing, or by mailgram or such similar means as is
agreed upon by the Trustee and the Sponsor under the preceding paragraph. These



X-1









 







directions shall be held in confidence by the Trustee and shall not be divulged to the
Sponsor, or any officer or employee thereof, or any other person except to the extent that the
consequences of such directions are reflected in reports regularly communicated to any such persons
in the ordinary course of the performance of the Trustee’s services hereunder. The Trustee shall
tender or not tender shares of Employer Securities as directed by the Member, former Member or
Beneficiary. To the extent that Members, former Members and Beneficiaries fail to affirmatively
direct the Trustee or fail to issue valid directions to the Trustee to tender shares of the
Employer Securities credited to their Accounts, they will be deemed to have instructed the Trustee
not to tender those shares. Accordingly, the Trustee shall not tender shares of Employer
Securities credited to a Member’s, former Member’s or Beneficiary’s Accounts for which it has
received no directions or invalid directions from him.



     Unless more than 50 percent of the shares of Employer Securities allocated to Accounts at the
time of any tender offer are tendered pursuant to the preceding provisions of this Section, none of
the shares not so allocated shall be tendered or exchanged by the Trustee pursuant to the offer.
If more than 50 percent of the shares so allocated are tendered pursuant to the preceding
provisions of this Section, then all the shares not so allocated shall be submitted by the Trustee
for tender or exchange pursuant to the tender offer.



     A Member, former Member or Beneficiary who has directed the Trustee to tender some or all of
the shares of the Employer Securities credited to his Accounts may, at any time prior to the tender
offer withdrawal date, direct the Trustee to withdraw some or all of the tendered shares, and the
Trustee shall withdraw the directed number of shares from the tender offer prior to the tender
offer withdrawal deadline. Prior to the withdrawal deadline, if any shares of the Employer
Securities not credited to Members’, former Members’ or Beneficiaries’ Accounts have been tendered,
the Trustee shall redetermine the number of shares of the Employer Securities that would be
tendered under this Section if the date of the foregoing withdrawal were the date of determination,
and withdraw from the tender offer the number of shares of the Employer Securities not credited to
Members’, former Members’ or Beneficiaries’ Accounts necessary to reduce the amount of tendered
Employer Securities not credited to Members’, former Members’ or Beneficiaries’ Accounts to the
amount so redetermined. A Member, former Member or Beneficiary shall not be limited as to the
number of directions to tender or withdraw that he may give to the Trustee.



     A direction by a Member, former Member or Beneficiary to the Trustee to tender shares of the
Employer Securities reflecting his proportional interest in the Employer Securities held in the
Trust shall not be considered a written election under the Plan by him to withdraw, or have
distributed, any or all of his withdrawable shares. The Trustee shall credit to each proportional
interest of the Member, former Member or Beneficiary from which the tendered shares were taken the
proceeds received by the Trustee in exchange for the shares of the Employer Securities tendered
from that interest.



     10.03 Shares Credited. For all purposes of this Article, the number of shares of the Employer
Securities deemed “credited” to a Member’s, former Member’s or Beneficiary’s Accounts as of the
relevant date (the record date or the date specified in the tender offer) shall be calculated by
reference to the number of shares reflected on the books of the transfer agent as of



X-2









 







the relevant date. In the case of a tender offer, the number of shares credited shall be
determined as of a date as close as administratively feasible to the relevant date.



     10.04 Conversion. All provisions in this Article shall also apply to any securities received
as a result of a conversion of the Employer Securities.



     10.05 Named Fiduciary. Each Member, former Member or Beneficiary shall be the named fiduciary
for purposes of ERISA in connection with the exercise of voting and tender offer rights relating to
shares of the Employer Securities credited to his Accounts and any shares of the Employer
Securities not credited to his Accounts that may be affected by his voting or tender decision.




X-3









 








ARTICLE XI




TRUST FUND AND CONTRIBUTIONS




     11.01 Funding of Plan. The Plan shall be funded by one or more separate Trusts. If more than
one Trust is used, each Trust shall be designated by the name of the Plan followed by a number
assigned by the Committee at the time the Trust is established.



     11.02 Incorporation of Trust. Each Trust is a part of the Plan. All rights or benefits which
accrue to a person under the Plan shall be subject also to the terms of the agreements creating the
Trust or Trusts and any amendments to them which are not in direct conflict with the Plan.



     11.03 Authority of Trustee. The Trustee shall have full title and legal ownership of the
assets in the separate Trust which, from time to time, is in his separate possession. No other
Trustee shall have joint title to or joint legal ownership of any asset in one of the other Trusts
held by another Trustee. The Trustee shall be governed separately by the trust agreement entered
into between the Employer and that Trustee and the terms of the Plan without regard to any other
agreement entered into between any other Trustee and the Employer as a part of the Plan.



     11.04 Investments in Employer Securities. The Plan is designed to invest primarily in
Employer Securities. Except as may be necessary to comply with its fiduciary duties under ERISA,
or to satisfy the Plan’s liquidity needs, the Trustee shall cause the Plan assets to be invested
primarily in Employer Securities. Up to 100 percent of the Plan’s assets may be invested in
Employer Securities.



     11.05 Acquisition Loans. The Committee may direct the Trustee to incur an Acquisition Loan on
behalf of the Trust in a manner and under conditions which will cause the Acquisition Loan to be an
“exempt loan” within the meaning of section 4975(d)(3) of the Code and Regulations thereunder. An
Acquisition Loan shall be used primarily for the benefit of Plan Members and their Beneficiaries.
The proceeds of each such Acquisition Loan shall be used within a reasonable time after the
Acquisition Loan is obtained only to purchase Employer Securities, to repay the Acquisition Loan or
to repay any prior Acquisition Loan. Any such Acquisition Loan shall provide for a reasonable rate
of interest, an ascertainable period of maturity and shall be without recourse against the Plan.
Any such Acquisition Loan shall be secured solely by shares of Employer Securities acquired with
the proceeds of the Acquisition Loan and shares of Employer Securities that were used as collateral
on a prior Acquisition Loan which was repaid with the proceeds of the current Acquisition Loan. No
person entitled to payment under an Acquisition Loan made pursuant to this Section shall have any
right to assets of the Trust Fund other than the Financed Shares used as collateral for the
Acquisition Loan, Debt Reduction Contributions and other Employer Contributions (other than
contributions of Employer Securities) that are available to meet obligations under the Acquisition
Loan and earnings attributable to the Financed Shares used as collateral for the Acquisition Loan
and the investment of such contributions. Debt Reduction Contributions made with respect to any
Plan Year during which the Acquisition Loan remains unpaid, and earnings on such contributions,
shall be deemed available to meet obligations under the Acquisition Loan, unless otherwise



XI-1









 







provided by the Employer at the time such contributions are made. Financed Shares pledged
as collateral shall be placed in a Suspense Account and released pursuant to the provisions of
Section 4.06 as the Acquisition Loan is repaid. Financed Shares released from the Suspense Account
shall be allocated in the manner described in Section 4.06.




XI-2









 








ARTICLE XII




DIVERSIFICATION ELECTION




     Within 90 days after the close of each Plan Year in the Diversification Election Period, a
Qualified Member may elect to direct the Trustee to distribute to the Qualified Member a portion of
his ESOP Account. The maximum amount with respect to which such election may be made in any Plan
Year shall be equal to 25 percent of the total number of shares of Employer Securities that have
ever been allocated to the Qualified Member’s Account on or before the most recent date for
allocation of Employer Contributions under Section 4.01 of the Plan minus the number of shares of
Employer Securities previously distributed pursuant to an election made under this Section,
provided, however, that such resulting number of shares may be rounded up or down to the nearest
whole integer. For the last Plan Year of the Diversification Election Period, “50 percent” shall
be substituted for “25 percent” in applying the preceding sentence. A distribution made pursuant
to an election under this Section 11.05 shall be made by the Plan to the Qualified Member within 90
days after the period during which the election may be made.




XII-1









 








ARTICLE XIII




ADOPTION OF PLAN BY OTHER EMPLOYERS




     13.01 Adoption Procedure. Any business organization that is an Affiliated Employer with
respect to the Sponsor may adopt the Plan for all or any classification of its Employees by
depositing with the Sponsor:



          (a) a duly executed adoption agreement setting forth agreement to be bound as an Employer by
all the terms, provisions, conditions and limitations of the Plan except those, if any,
specifically set forth in the adoption agreement;



          (b) all other information required by the Sponsor; and



          (c) the written consent of the Sponsor to the adoption of the Plan.



     An adoption may be retroactive to the beginning of a Plan Year if these conditions are
complied with on or before the last day of that Plan Year.



     13.02 No Joint Venture Implied. The document which evidences the adoption of the Plan by an
Employer shall become a part of this Plan. However, neither the adoption of this Plan and its
related Trust Fund by an Employer nor any act performed by it in relation to this Plan and its
related Trust Fund shall ever create a joint venture or partnership relation between it and any
other Employer.



     13.03 All Trust Assets Available to Pay All Benefits. The Accounts of Members employed by the
Employers which adopt this Plan shall be commingled for investment purposes. All assets in the
Trust Fund shall be available to pay benefits to all Members employed by any Employer which is an
Affiliated Employer with the first Employer.



     13.04 Qualification a Condition Precedent to Adoption and Continued Participation. The
adoption of this Plan and the Trust used to fund this Plan by a business organization is contingent
upon and subject to the express condition precedent that the initial adoption meets all statutory
and regulatory requirements for qualification of the Plan and the exemption of the Trust and that
the Plan and the Trust that are applicable to it continue in operation to maintain their qualified
and exempt status. In the event the adoption fails to initially qualify and be exempt, the
adoption shall fail retroactively for failure to meet the condition precedent and the portion of
the Trust Fund applicable to the adoption shall be immediately returned to the adopting business
organization and the adoption shall be void ab initio. In the event the adoption as to a given
business organization later becomes disqualified and loses its exemption for any reason, the
adoption shall fail retroactively for failure to meet the condition precedent and the portion of
the Trust Fund allocable to the adoption by that business organization shall be immediately spun
off, retroactively as of the last date for which the Plan qualified, to a separate Trust for its
sole benefit and an identical but separate Plan shall be created, retroactively effective as of the
last date the Plan as adopted by that business organization qualified, for the benefit of the
Members covered by that adoption.




XIII-1









 








ARTICLE XIV




AMENDMENT AND TERMINATION




     14.01 Right to Amend and Limitations Thereon. The Sponsor has the sole right to amend this
Plan. An amendment may be made by a certified resolution or consent of the Board, or by an
instrument in writing executed by the appropriate officer of the Sponsor. The amendment must
describe the nature of the amendment and its effective date. No amendment shall:



          (a) vest in an Employer any interest in the Trust Fund;



          (b) cause or permit the Trust Fund to be diverted to any purpose other than the exclusive
benefit of the present or future Members and their Beneficiaries;



          (c) decrease the Account of any Member or eliminate an optional form of payment;



          (d) change the vesting schedule to one which would result in the nonforfeitable percentage of
the Account derived from Employer Contributions (determined as of the later of the date of the
adoption of the amendment or of the effective date of the amendment) of any Member being less than
the nonforfeitable percentage computed under the Plan without regard to the amendment. If the
Plan’s vesting schedule is amended, if the Plan is amended in any other way that affects the
computation of the Member’s nonforfeitable percentage, or if the Plan is deemed amended by an
automatic change to or from a Top-Heavy vesting schedule, each Member with at least three Years of
Service shall be deemed to have elected to have the nonforfeitable percentage computed under the
Plan without regard to the amendment or the change if that method is more favorable for him.



     Each Employer shall be deemed to have adopted any amendment made by the Sponsor.



     14.02 Amendment Applicable Only to Members Still Employed Unless Amendment Specifically
Provides Otherwise. No benefit for any person who died, retired, became disabled or separated
prior to the execution of an amendment shall be charged an amount or subject to adjustments
provided in the Plan amendment. Instead, those persons who died, retired, became disabled or
separated prior to the execution of an amendment shall be entitled to the benefit as adjusted from
time to time as was provided by the Plan at the time the person first became entitled to his
benefit unless the amendment specifically provides otherwise.



     14.03 Mandatory Amendments. The Contributions of each Employer to this Plan are intended to
be:



          (a) deductible under the applicable provisions of the Code;



          (b) except as otherwise prescribed by applicable law, exempt from the Federal Social Security
Act;



XIV-1









 





          (c) except as otherwise prescribed by applicable law, exempt from withholding under the Code;
and



          (d) excludable from any Employee’s regular rate of pay, as that term is defined under the Fair
Labor Standards Act of 1938, as amended.



     The Sponsor shall make any amendment necessary to carry out this intention, and it may be made
retroactively.



     14.04 Withdrawal of Employer. An Employer may withdraw from this Plan and its related Trust
Fund by giving written notice of its intent to withdraw to the Committee. The Committee shall then
determine the portion of the Trust Fund that is attributable to the Members employed by the
withdrawing Employer and shall notify the Trustee to segregate and transfer those assets to the
successor Trustee or Trustees when it receives a designation of the successor from the withdrawing
Employer.



     A withdrawal shall not terminate the Plan and its related Trust Fund with respect to the
withdrawing Employer, if the Employer either appoints a successor Trustee or Trustees and reaffirms
this Plan and its related Trust Fund as its new and separate plan and trust intended to qualify
under section 401(a) of the Code, or establishes another plan and trust intended to qualify under
section 401(a) of the Code.



     The determination of the Committee, in its sole discretion, of the portion of the Trust Fund
that is attributable to the Members employed by the withdrawing Employer shall be final and binding
upon all parties; and, the Trustee’s transfer of those assets to the designated successor Trustee
shall relieve the Trustee of any further obligation, liability or duty to the withdrawing Employer,
the Members employed by that Employer and their Beneficiaries, and the successor Trustee or
Trustees.



     14.05 Termination of the Plan. The Sponsor may terminate this Plan and its related Trust Fund
with respect to all Employers by executing and delivering to the Committee and the Trustee, a
notice of termination, specifying the date of termination. Any Employer may terminate this Plan
and its related Trust Fund with respect to itself by executing and delivering to the Trustee a
notice of termination, specifying the date of termination. Likewise, this Plan and its related
Trust Fund shall automatically terminate with respect to any Employer if there is a general
assignment by that Employer to or for the benefit of its creditors, or a liquidation or dissolution
of that Employer without a successor. Upon the termination of this Plan as to an Employer, the
Trustee shall distribute to each Member employed by the terminating Employer the amount certified
by the Committee to be due the Member.



     The Employer should apply to the Internal Revenue Service for a determination letter with
respect to its termination, and the Trustee should not distribute the Trust Funds until a
determination is received. However, should it decide that a distribution before receipt of the
determination letter is necessary or appropriate, it should retain sufficient assets to cover any
tax that may become due upon that determination.



XIV-2









 





     14.06 Partial or Complete Termination or Complete Discontinuance. Without regard to any other
provision of this Plan, if there is a partial or total termination of this Plan or there is a
complete discontinuance of the Employer’s Contributions, each of the affected Members shall
immediately have a fully Nonforfeitable Interest in amounts credited to his Accounts as of the end
of the last Plan Year for which a substantial Employer Contribution was made and in any amounts
later allocated to his Accounts. If the Employer then resumes making substantial Contributions at
any time, the appropriate vesting schedule shall again apply to all amounts allocated to each
affected Member’s Accounts beginning with the Plan Year for which they were resumed.




XIV-3









 








ARTICLE XV




MISCELLANEOUS




     15.01 Plan Not An Employment Contract. The adoption and maintenance of this Plan and its
related Trust Fund is not a contract between the Employer and its Employees which gives any
Employee the right to be retained in its employment. Likewise, it is not intended to interfere
with the rights of the Employer to discharge any Employee at any time or to interfere with the
Employee’s right to terminate his employment at any time.



     15.02 Benefits Provided Solely From Trust. All benefits payable under this Plan shall be paid
or provided for solely from the Trust Fund. The Employer assumes no liability or responsibility to
pay any benefit provided by the Plan.



     15.03 Assignments Prohibited. No principal or income payable or to become payable from the
Trust shall be subject to anticipation or assignment by a Member, former Member or Beneficiary to
attachment by, interference with, or control of any creditor of a Member, former Member or
Beneficiary; or to being taken or reached by any legal or equitable process in satisfaction of any
debt or liability of a Member, former Member or Beneficiary prior to its actual receipt by the
Member, former Member or Beneficiary. Any attempted conveyance, transfer, assignment, mortgage,
pledge, or encumbrance of the Trust, any part of it, or any interest in it by a Member, former
Member or Beneficiary prior to distribution shall be void, whether that conveyance, transfer,
assignment, mortgage, pledge, or encumbrance is intended to take place or become effective before
or after any distribution of Trust assets or the termination of the Trust itself. The Trustee
shall never under any circumstances be required to recognize any conveyance, transfer, assignment,
mortgage, pledge or encumbrance by a Member, former Member or Beneficiary of the Trust, any part of
it, or any interest in it, or to pay any money or thing of value to any creditor or assignee of a
Member, former Member or Beneficiary for any cause whatsoever. These prohibitions against the
alienation of a Member’s or former Member’s Account shall not apply to a Qualified Domestic
Relations Order or to a voluntary revocable assignment of benefits not in excess of ten percent of
the amount of any payment from the Plan if such assignment complies with Regulations issued under
section 401(a)(13) of the Code. Further, effective for judgments, orders and decrees issued, and
settlement agreements entered into, on or after August 5, 1997, these prohibitions shall not apply
to any offset of a Member’s or former Member’s benefit under the Plan against an amount that the
Member or former Member is ordered or required to pay to the Plan if (a) the order or requirement
to pay (1) arises under a judgment of conviction for a crime involving the Plan, (2) arises under a
civil judgment (including a consent order or decree) entered by a court in an action brought in
connection with a violation or an alleged violation of part 4 of subtitle B of title I of ERISA, or
(3) is pursuant to a settlement agreement between the Secretary of Labor and the Member or former
Member in connection with an alleged violation of part 4 of subtitle B of title I of ERISA by a
fiduciary or any other person and (b) the judgment, order, decree or settlement agreement expressly
provides for the offset of all or a part of the amount ordered or required to be paid to the Plan
against the Member’s or former Member’s benefits provided under the Plan.



XV-1









 





     15.04 Requirements Upon Merger or Consolidation of Plans. This Plan shall not merge or
consolidate with or transfer any assets or liabilities to any other plan unless each Member or
former Member would (if the Plan then terminated) receive a benefit immediately after the merger,
consolidation, or transfer which is equal to or greater than the benefit he would have been
entitled to receive immediately before the merger, consolidation, or transfer (if the Plan had then
terminated).



     15.05 Gender of Words Used. If the context requires it, words of one gender when used in this
Plan shall include the other genders, and words used in the singular or plural shall include the
other.



     15.06 Right of First Refusal and Put Option Right if Stock is Not Publicly Traded or is
Subject to a Trading Limitation. Any shares of any class of Employer Securities that is not
Publicly Traded when distributed shall be subject to a right of first refusal. The right of first
refusal shall provide that, prior to any subsequent transfer while the Employer Securities is not
Publicly Traded, the Employer Securities must be offered in writing for sale to the Employer, and
then if refused by the Employer, to the Plan, at the greater of (a) the then fair market value of
the Employer Securities or (b) the purchase price and other terms offered in a bona fide written
offer by an independent prospective buyer. The Employer and the Plan shall have a total of 14 days
from the date the Employer receives the offer to exercise the right of first refusal. A Member,
former Member or Beneficiary entitled to a distribution of Employer Securities may be required to
execute an appropriate stock transfer agreement (evidencing the right of first refusal) prior to
receiving a certificate for Employer Securities.



     Employer Securities shall be subject to a put option if not Publicly Traded when distributed
or if subject to a Trading Limitation when distributed. The put option shall permit the Member or
former Member (and his donees, his estate, any distributee of his estate, or any other person to
whom the Employer Securities passes by reason of his death) to sell the Employer Securities to the
Employer, at any time during two option periods, at its then fair market value. The Plan shall
have the option to assume the rights and obligations of the Employer with respect to a put option
at the time that the option is exercised. The first put option period shall be a period of 60 days
beginning on the date of distribution of the Employer Securities. The second put option period
shall be a period of 60 days in the next Plan Year beginning on the day the option holder is
notified in writing of the new determination of the fair market value of the Employer Securities.
If the Employer Securities is Publicly Traded without restriction when distributed, but ceases to
be so traded within 15 months after distribution, the Employer shall notify each holder of the
Employer Securities in writing on or before the tenth day after the date the Employer Securities
ceases to be so traded that those shares of Employer Securities shall be subject to a put option
for a 60-day period beginning on the date of the notice. The notice shall inform distributees of
the terms of the put options that they are to be granted, which terms shall comply with the
provisions of this Section. The periods during which the put option is exercisable do not include
any time when a distributee is unable to exercise it, because the Employer (or other party bound by
the put option) is prohibited from honoring it by applicable federal or state law. The put option
shall be exercised by the holder notifying the Employer in writing that the option is being
exercised. If the Employer is required to repurchase Employer Securities that is distributed to
the former Member or Beneficiary as part of a total distribution,



XV-2









 







the amount to be paid for the Employer Securities shall be paid in substantially equal annual
payments over a five-year period beginning not later than 30 days after the exercise of the put
option. The Employer shall provide adequate security for payment of the obligation, and interest
shall be payable at a reasonable rate on any unpaid balance of the obligation. If the Employer is
required to repurchase Employer Securities as part of an installment distribution, the amount to be
paid for the Employer Securities shall be paid not later than 30 days after the exercise of the put
option. For purposes of this Section, the term “total distribution” means the distribution within
one taxable year to the recipient of the balance to the credit of the recipient’s Accounts.



     Except as otherwise provided in Section 15.06, no Employer Securities held or distributed by
the Trustee may be subject to a put, call, or other option, or buy-sell or similar arrangement.
The provisions of this Section shall continue to be applicable to Employer Securities even if the
Plan ceases to be an employee stock ownership plan under Section 4975(e)(7) of the Code.



     15.07 Severability. Each provision of this Agreement may be severed. If any provision is
determined to be invalid or unenforceable, that determination shall not affect the validity or
enforceability of any other provision.



     15.08 Reemployed Veterans. The requirements of the Uniformed Services Employment and
Reemployment Rights Act of 1994 will be complied with in the operation of the Plan in the manner
permitted under section 414(u) of the Code. Effective January 12, 1994, notwithstanding any other
provision of the Plan, Contributions and Years of Active Service with respect to a person who has
engaged in qualified military service will be provided in accordance with section 414(u) of the
Code.



     15.09 Limitations on Legal Actions. No person may bring an action pertaining to the Plan or
Trust until he has exhausted his administrative claims and appeal remedies identified in Section
6.18. Further, no person may bring an action pertaining to a claim for benefits under the Plan or
the Trust following 365 days after the Committee’s final denial of his claim for benefits.



     15.10 Governing Law. The provisions of this Plan shall be construed, administered, and
governed under the laws of the State of Texas and, to the extent applicable, by the laws of the
United States.



     15.11 Prohibition of Qualified Gratuitous Transfers. The Plan shall not accept any qualified
gratuitous transfers as defined under section 664(g) of the Code.



XV-3









 





     IN WITNESS WHEREOF, The Men’s Wearhouse, Inc. has caused this Agreement to be executed
effective as of the 31st day of December, 2006, except to the extent that a different
effective date is specified herein or required by law.



	 	 	 	 	 
	 	 	THE MEN’S WEARHOUSE, INC.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Kirk Warren
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Title:
	 	VP, Benefits & Administration
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Date:
	 	12/31/06
	 

	 	 	 	 






 









 








APPENDIX A

LIMITATIONS ON CONTRIBUTIONS AND ALLOCATIONS




PART A.1 Definitions




     Definitions. As used herein the following words and phrases have the meanings attributed to
them below:




     A.1.1 “Annual Additions” means the sum of the following amounts credited on behalf of a
Participant for the Limitation Year: (a) Employer contributions excluding catch-up
before-tax contributions described in section 414(v) of the Code and including before-tax
contributions, (b) Employee after-tax contributions, and (c) forfeitures. For this purpose,
Employee contributions are determined without regard to any rollover contributions (as
defined in sections 402(c), 403(a)(4), 403(b)(8), 408(d)(3) and 457(e)(16) of the Code
without regard to employee contributions to a simplified employee pension which are
excludable from gross income under section 408(k)(6) of the Code). Excess 401(k)
Contributions for a Plan Year are treated as Annual Additions for that Plan Year even if
they are corrected through distribution. Excess deferrals described in section 402(g) of
the Code that are timely distributed will not be treated as Annual Additions.




     A.1.2 “Excess Amount” means the excess of the Annual Additions credited to the
Participant’s Account for the Limitation Year over the Maximum Permissible Amount.




     A.1.3 “Limitation Year” means the Plan Year. All qualified plans maintained by any
Affiliated Employer must use the same Limitation Year. If the Limitation Year is amended to
a different 12-consecutive month period, the new Limitation Year must begin on a date within
the Limitation Year in which the amendment is made.




     A.1.4 “Maximum Permissible Amount” means the lesser of (1) $40,000.00 as adjusted by
the Secretary of Treasury for increases in the cost of living or (2) 100 percent of the
Participant’s or former Participant’s Annual Compensation for the Limitation Year. The
Compensation limitation referred to in clauses (2) of the immediately preceding sentences
shall not apply to any contribution for medical benefits (within the meaning of section
401(h) or section 419A(f)(2) of the Code) that is otherwise treated as an Annual Addition
under section 415(l)(1) or section 419A(d)(2) of the Code. If a short Limitation Year is
created because of an amendment changing the Limitation Year to a different 12-consecutive
month period, the Maximum Permissible Amount shall not exceed the dollar limitation in
effect under section 415(c)(1)(A) of the Code multiplied by a fraction, the numerator of
which is the number of months in the short Limitation Year, and the denominator of which is
12.



A-1









 





PART A.2 Limitations Based Upon Deductibility and the Maximum Allocation Permitted to a

Participant’s Account




     Notwithstanding any other provision of the Plan, no Employer shall make any contribution that
would be a nondeductible contribution within the meaning of section 4972 of the Code or that would
cause the limitation on allocations to each Participant’s Account under section 415 of the Code and
Section A.4.1 to be exceeded.



PART A.3 Limitation on Allocations




     A.3.1 Basic Limitation on Allocations. The Annual Additions which may be credited to a
Participant’s Accounts under the Plan for any Limitation Year will not exceed the Maximum
Permissible Amount reduced by the Annual Additions credited to a Participant’s Account for the same
Limitation Year under any other qualified defined contribution plans maintained by any Affiliated
Employer. If the Annual Additions with respect to the Participant under such other qualified
defined contribution plans are less than the Maximum Permissible Amount and the Employer
Contribution that would otherwise be contributed or allocated to the Participant’s Accounts under
the Plan would cause the Annual Additions for the Limitation Year to exceed this limitation, the
amount contributed or allocated under the Plan will be reduced so that the Annual Additions under
all qualified defined contribution plans maintained by any Affiliated Employer for the Limitation
Year will equal the Maximum Permissible Amount. If the Annual Additions with respect to the
Participant under such other qualified defined contribution plans maintained by any Affiliated
Employer 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 the Plan for the Limitation
Year.



     A.3.2 Estimation of Maximum Permissible Amount. Prior to determining the Participant’s actual
Annual Compensation for the Limitation Year, the Employer may determine the Maximum Permissible
Amount on the basis of a reasonable estimation of the Participant’s Annual Compensation for such
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 Annual
Compensation for such Limitation Year.



     A.3.3 Attribution of Excess Amounts. If a Participant’s Annual Additions under the Plan and
all other qualified defined contribution plans maintained by any Affiliated Employer result in an
Excess Amount, the total Excess Amount shall be attributed to the Plan.



     A.3.4 Treatment of Excess Amounts. If an Excess Amount attributed to the Plan is held or
contributed as a result of or because of (i) the allocation of forfeitures, (ii) reasonable error
in estimating a Participant’s Considered Compensation, (iii) reasonable error in calculating the
maximum Salary Deferral Contribution that may be made with respect to a Participant under section
415 of the Code or (iv) any other facts and circumstances which the Commissioner of Internal
Revenue finds to be justified, the Excess Amount shall be reduced as follows:



A-2









 





     (a) First, the Excess Amount shall be attributed to The Men’s Wearhouse, Inc. 401(k) Savings
Plan.



     (b) Second, if the Participant is still employed by the Employer at the end of the Limitation
Year, then any remaining Excess Amounts shall not be distributed to the Participant, but shall be
reallocated to a suspense account and shall be reapplied to reduce future Employer Contributions
(including any allocation of forfeitures) under the Plan for such Participant in the next
Limitation Year, and for each succeeding Limitation Year, if necessary.



     (c) If, after application of paragraph (b) of this Section, an Excess Amount still exists, and
the Participant is not still employed by the Employer at the end of the Limitation Year, then such
Excess Amounts in the Participant’s Accounts shall not be distributed to the Participant, but shall
be reallocated to a suspense account and shall be reapplied to reduce future Employer Contributions
(including allocation of any forfeitures), for all remaining Participants in the next Limitation
Year and each succeeding Limitation Year if necessary.



     (d) If a suspense account is in existence at any time during the Limitation Year pursuant to
this Section, it will not participate in the allocation of the Trust Fund’s investment gains and
losses. If a suspense account is in existence at any time during a particular Limitation Year, all
amounts in the suspense account must be allocated and reallocated to Participants’ Accounts before
any Employer Contribution may be made to the Plan for that Limitation Year. Excess Amounts may not
be distributed to Participants or former Participants. If the Plan is terminated while a suspense
account described in this Section is in existence, the amount in such suspense account shall revert
to the Employer(s) to which it is attributable.




A-3









 








APPENDIX B




TOP-HEAVY REQUIREMENTS




PART B.1 Definitions




     Definitions. As used herein, the following words and phrases have the meaning attributed to
them below:



     B.1.1 “Aggregate Accounts” means the total of all account balances.



     B.1.2 “Aggregation Group” means (a) each section 401(a) plan of the Employer or any Affiliated
Employer in which a Key Employee is a participant and (b) each other plan of the Employer or any
Affiliated Employer which enables any plan in (a) to meet the requirements of either section
401(a)(4) or 410 of the Code. Any Employer may treat a plan not required to be included in the
Aggregation Group as being a part of the group if the group would continue to meet the requirements
of section 401(a)(4) and 410 of the Code with that plan being taken into account.



     B.1.3 “Catch-up Salary Deferral Contributions” means catch-up salary deferral contributions
described in section 414(v) of the Code made on behalf of the Employee to a qualified cash or
deferred Arrangement maintained by an Affiliated Employer.



     B.1.4 “Determination Date” means for a given Plan Year the last day of the preceding Plan Year
or in the case of the first Plan Year the last day of that Plan Year.



     B.1.5 “Key Employee” means an Employee or former Employee (including a deceased Employee) who
at any time during the Plan Year is (a) an officer of any Affiliated Employer having Annual
Compensation greater than $130,000.00 (as adjusted by the Secretary of Treasury from time to time
for increases in the cost of living), (b) a Five Percent Owner of any Affiliated Employer, treated
separately, or (c) a One Percent Owner of any Affiliated Employer, treated separately, having
Annual Compensation greater than $150,000.00. For this purpose no more than fifty (50) employees
or, if lesser, the greater of three (3) employees or ten percent (10%) of the employees shall be
treated as officers.



     For purposes of determining the number of officers taken into account, the following employees
shall be excluded: (1) employees who have not completed six (6) months of Vesting Service, (2)
employees who normally work less than seventeen and one-half (17-1/2) hours per week, (3) employees
who normally work not more than six (6) months during any year, (4) employees who have not attained
the age of twenty-one (21), and (5) except to the extent provided in Regulations, employees who are
included in a unit of employees covered by an agreement which the Secretary of Labor finds to be a
collective bargaining agreement between employee representatives and an Affiliated Employer.
Section 416(i) of the Code shall be used to determine percentage of ownership.



B-1









 





     The determination of who is a Key Employee will be made in accordance with section 416(i) of
the Code and applicable Regulations.



     B.1.6 “Non-Key Employee” means any Employee who is not a Key Employee.



     B.1.7 One Percent Owner” means a person who is a one percent owner as defined in section
416(i) of the Code with respect to an Employer or an Affiliated Employer.



     B.1.8 “Top-Heavy Plan” means any plan which has been determined to be top-heavy under the test
described in Appendix B of the Plan.



PART B.2 Application




     B.2.1 Application. The requirements described in this Appendix B shall apply to each Plan
Year that the Plan is determined to be a Top-Heavy Plan.



     B.2.2 Top-Heavy Test. If on the Determination Date the Aggregate Accounts of Key Employees in
the Plan exceed 60 percent of the Aggregate Accounts of all Employees in the Plan, the Plan shall
be a Top-Heavy Plan for that Plan Year. In addition, if the Plan is required to be included in an
Aggregation Group and that group is a top-heavy group, the Plan shall be treated as a Top-Heavy
Plan. An Aggregation Group is a top-heavy group if on the Determination Date the sum of (a) the
present value of the cumulative accrued benefits for Key Employees under all defined benefit plans
in the Aggregation Group which contains the Plan, plus (b) the total of all of the accounts of Key
Employees under all defined contribution plans included in the Aggregation Group (which contains
the Plan) is more than 60 percent of a similar sum determined for all employees covered in the
Aggregation Group which contains the Plan.



     In applying the above tests, the following rules shall apply:




     (a) in determining the present value of the accumulated accrued benefits for any
Employee or the amount in the account of any Employee, the value or amount shall be
increased by all distributions made to or for the benefit of the Employee under the Plan
after his Separation From Service and during the one-year period ending on the Determination
Date (including distributions under a terminated plan which, had it not been terminated,
would have been included in the Aggregation Group that includes the Plan);




     (b) in determining the present value of the accumulated accrued benefits for any
Employee or the amount in the account of any Employee, the value or amount shall be
increased by all distributions made to or for the benefit of the Employee under the Plan
prior to his Separation From Service and during the five-year period ending on the
Determination Date (including distributions under a terminated plan which, had it not been
terminated, would have been included in the Aggregation Group that includes the Plan);



B-2









 






     (c) all rollover contributions made by the Employee to the Plan shall not be considered
by the Plan for either test;




     (d) all Catch-up Salary Deferral Contributions for a current Plan Year shall not be
considered, but Catch-up Salary Deferral Contributions for prior Plan Years must be taken
into account;




     (e) if an Employee is a Non-Key Employee under the Plan for the Plan Year but was a Key
Employee under the Plan for a prior Plan Year, his Account shall not be considered; and




     (f) notwithstanding any other provision of the Plan, the present value of the
cumulative accrued benefits, and account balances under the Plan and all plans included in
the Aggregation Group that includes the Plan shall not be taken into account in determining
the top-heavy ratio for any Employee who has not performed services for the Employer during
the last one-year period ending upon the Determination Date.



     B.2.3 Vesting Restrictions if Plan Becomes Top-Heavy. If a Participant has at least one Hour
of Service during a Plan Year when the Plan is a Top-Heavy Plan he shall either vest under the
normal vesting provisions of the Plan, or under the following vesting schedule, whichever is more
favorable:



	 	 	 	 	 
	 	 	Vested Percentage of Amount
	 	 	In Accounts Containing
	Completed Years of Vesting Service	 	Employer Contributions
	 
	 	 	 	 
	Less than two years

	 	 	0	 
	Two years but less than three years

	 	 	20	 
	Three years but less than four years

	 	 	40	 
	Four years but less than five years

	 	 	60	 
	Five years but less than six years

	 	 	80	 
	Six years or more

	 	 	100	 





If the Plan ceases to be a Top-Heavy Plan, this requirement shall no longer apply. After that
date, the normal vesting provisions of the Plan shall be applicable to all subsequent Contributions
by the Employer.




     For purposes of this Section B.2.3 years of service for vesting purposes shall be determined
under the rules of section 411(a) of the Code except that years of vesting service for any Plan
Year for which the Plan was not top-heavy shall be disregarded.



     B.2.4 Minimum Contributions if Plan Becomes Top-Heavy. If the Plan is a Top-Heavy Plan and
the allocation of the Employer Contributions (including Matching Contributions) and forfeitures is
less than three percent of any Non-Key Employee Participant’s Annual Compensation, the Committee,
without regard to the normal allocation procedures, shall allocate the Employer Contribution and
the forfeitures among the Participants who are Non-Key



B-3









 







Employees in proportion to each such Participant’s Annual Compensation until each Non-Key
Employee Participant has had an amount equal to three percent of his Annual Compensation allocated
to his Account. At that time, any more Employer Contributions or forfeitures shall be allocated
under the normal allocation procedures described earlier in the Plan. Amounts that may be treated
as Section 401(k) Contributions made on behalf of Non-Key Employees may not be included in
determining the minimum contribution required under this Section to the extent that they are
treated as Section 401(k) Contributions for purposes of the Actual Deferral Percentage test.



     In applying this restriction, the following rules shall apply:




     (a) Each Employee who is eligible for participation (without regard to whether he has
made mandatory contributions, if any are required, or whether his compensation is less than
a stated amount) shall be entitled to receive an allocation under this Section; and




     (b) All defined contribution plans required to be included in the Aggregation Group
shall be treated as one plan for purposes of meeting the three percent maximum; this
required aggregation shall not apply if the Plan is also required to be included in an
Aggregation Group which includes a defined benefit plan and the Plan enables that defined
benefit plan to meet the requirements of sections 401(a)(4) or 410 of the Code.




     (c) Catch-up Salary Deferral Contributions shall be disregarded.



     B.2.5 Disregard of Government Programs. If the Plan is a Top-Heavy Plan, it must meet the
vesting and benefit requirements described in this Article without taking into account
contributions or benefits under Chapter 2 of the Code (relating to the tax on self-employment
income), Chapter 21 of the Code (relating to the Federal Insurance Contributions Act), Title II of
the Social Security Act, or any other Federal or State law.




B-4