The Premium 100 Retirement Plan Fidelity Basic Plan Document No. 13

Exhibit 10.17.1

THE PREMIUM 100 RETIREMENT PLAN

FIDELITY BASIC PLAN DOCUMENT NO. 13


THE PREMIUM 100 RETIREMENT PLAN

Preamble

 

Article 1. Adoption Agreement
Article 2. Definitions
2.01.    Definitions    1
2.02.    Pronouns    10
2.03.    Special Effective Dates    10
Article 3. Service
3.01.    Crediting of Eligibility Service    10
3.02.    Re-Crediting of Eligibility Service Following Termination of Employment    10
3.03.    Crediting of Vesting Service    10
3.04.    Application of Vesting Service to a Participant’s Account Following a Break in Vesting Service    10
3.05.    Service with Predecessor Employer    11
3.06.    Change in Service Crediting    11
Article 4. Participation
4.01.    Date of Participation    11
4.02.    Transfers Out of Covered Employment    11
4.03.    Transfers Into Covered Employment    11
4.04.    Resumption of Participation Following Reemployment    12
Article 5. Contributions
5.01.    Contributions Subject to Limitations    12
5.02.    Compensation Taken into Account in Determining Contributions    12
5.03.    Deferral Contributions    12
5.04.    Employee Contributions    13
5.05.    No Deductible Employee Contributions    13
5.06.    Rollover Contributions    13
5.07.    Qualified Nonelective Emplover Contributions    14
5.08.    Matching Employer Contributions    14
5.09.    Qualified Matching Employer Contributions    14
5.10.    Nonelective Employer Contributions    15
5.11.    Vested Interest in Contributions    16
5.12.    Time for Making Contributions    16
5.13.    Return of Employer Contributions    17
Article 6. Limitations on Contributions
6.01.    Special Definitions    17
6.02.    Code Section 402(g) Limit on Deferral Contributions    23
6.03.    Additional Limit on Deferral Contributions (“ADP” Test)    23


6.04.    Allocation and Distribution of “Excess Contributions”    24
6.05.    Reductions in Deferral Contributions to Meet Code Requirements    24
6.06.    Limit on Matching Employer Contributions (and Employee Contributions made prior to the Effective Date) (“ACP” Test)    24
6.07.    Allocation, Distribution, and Forfeiture of “Excess Aggregate Contribution”    25
6.08.    Aggregate Limit on “Contribution Percentage Amounts” and “Includable Contributions”    26
6.09.    Income or Loss on Distributable Contributions    26
6.10.    Deemed Satisfaction of “ADP” Test    26
6.11.    Deemed Satisfaction of “ACP” Test With Respect to Matching Employer Contributions    27
6.12.    Code Section 415 Limitations    28
Article 7. Participants’ Accounts
7.01.    Individual Accounts    30
7.02.    Valuation of Accounts    30
Article 8. Investment of Contributions
8.01.    Manner of Investment    31
8.02.    Investment Decisions    31
8.03.    Participant Directions to Trustee    31
Article 9. Participant Loans
9.01.    Special Definitions    32
9.02.    Participant Loans   
9.03.    Separate Loan Procedures   
9.04.    Availability of Loans   
9.05.    Limitation on Loan Amount   
9.06.    Interest Rest   
9.07.    Level Amortization   
9.08.    Security   
9.09.    Transfer and Distribution of Loan Amounts from Permissible Investments   
9.10.    Default   
9.11.    Effect of Termination Where Participant has Outstanding Loan Balance   
9.12.    Deemed Distributions Under Code Section 72(p)   
9.13.    Determination of Account Value Upon Distribution Where Plan Loan is Outstanding    32
Article 10. In-Service Withdrawals
10.01.    Availability of In-Service Withdrawals    32
10.02.    Withdrawal of Employee Contributions    32
10.03.    Withdrawal of Rollover Contributions    32
10.04.    Age 591/2 Withdrawals    32
10.05.    Hardship Withdrawals    32
10.06.    Preservation of Prior Plan In-Service Withdrawal Rules    33
10.07.    Restrictions on In-Service Withdrawals    34
10.08.    Distribution of Withdrawal Amounts    34
Article 11. Right to Benefits
11.01.    Normal or Early Retirement    34
11.02.    Late Retirement    34


11.03.    Disability Retirement    35
11.04.    Death    35
11.05.    Other Termination of Employment    35
11.06.    Application for Distribution    35
11.07.    Application of Vesting Schedule Following Partial Distribution    35
11.08.    Forfeitures    36
11.09.    Application of Forfeitures    36
11.10.    Reinstatement of Forfeitures    36
11.11.    Adjustment for Investment Experience    37
Article 12. Distributions
12.01.    Restrictions on Distributions    37
12.02.    Timing of Distribution Following Retirement or Termination of Employment    37
12.03.    Participant Consent to Distribution    37
12.04.    Required Commencement of Distribution to Participants    38
12.05.    Required Commencement of Distribution to Beneficiaries    38
12.06.    Whereabouts of Participants and Beneficiaries    39
Article 13. Form of Distribution
13.01.    Normal Form of Distribution Under Profit Sharing Plan    39
13.02.    Cash Out Of Small Accounts    39
13.03.    Minimum Distributions    40
13.04.    Direct Rollovers    41
13.05.    Notice Regarding Timing and Form of Distribution    41
13.06.    Determination of Method of Distribution    42
13.07.    Notice to Trustee    42
Article 14. Superseding Annuity Distribution Provisions
14.01.    Special Definitions    42
14.02.    Applicability    42
14.03.    Annuity Form of Payment    43
14.04.    “Qualified Joint and Survivor Annuity” and “Qualified Preretirement Survivor Annuity” Requirements    43
14.05.    Waiver of the “Qualified Joint and Survivor Annuity” and/or “Qualified Preretirement Survivor Annuity” Rights    44
14.06.    Spouse’s Consent to Waiver    44
14.07.    Notice Regarding “Qualified Joint and Survivor Annuity”    44
14.08.    Notice Regarding “Qualified Preretirement Survivor Annuity”    45
14.09.    Former Spouse    45
Article 15. Top-Heavy Provisions
15.01.    Definitions    45
15.02.    Application    47
15.03.    Minimum Contribution    47
15.04.    Modification of Allocation Provisions to Meet Minimum Contribution Requirements    48
15.05.    Adjustment to the Limitation on Contributions and Benefits    49
15.06.    Accelerated Vesting    49
15.07.    Exclusion of Collectively-Bargained Employees    49


Article 16. Amendment and Termination
16.01.    Amendments by the Employer that do Not Affect Prototype Status    49
16.02.    Amendments by the Employer that Affect Prototype Status    50
16.03.    Amendment by the Mass Submitter Sponsor and the Prototype Sponsor    50
16.04.    Amendments Affecting Vested and/or Accrued Benefits    50
16.05.    Retroactive Amendments made by Mass Submitter or Prototype Sponsor    51
16.06.    Termination    51
16.07.    Distribution upon Termination of the Plan    51
16.08.    Merger or Consolidation of Plan; Transfer of Plan Assets    51
Article 17. Amendment and Continuation of Prior Plan; Transfer of Funds to or from Other Qualified Plans
17.01.    Amendment and Continuation of Prior Plan    51
17.02.    Transfer of Funds from an Existing Plan    52
17.03.    Acceptance of Assets by Trustee    53
17.04.    Transfer of Assets from Trust    53
Article 18. Miscellaneous
18.01.    Communication to Participants    54
18.02.    Limitation of Rights    54
18.03.    Nonalienability of Benefits    55
18.04.    Qualified Domestic Relations Orders Procedures    55
18.05.    Application of Plan Provisions in Multiple Employer Plans    55
18.06.    Veterans Reemployment Rights    56
18.07.    Facility of Payment    56
18.08.    Information between Employer and Trustee    56
18.09.    Effect of Failure to Qualify Under Code    56
18.10.    Directions, Notices and Disclosure    56
18.11.    Governing Law    57
Article 19. Plan Administration
19.01.    Powers and Responsibilities of the Administrator    57
19.02.    Delegation of Authority to Investment Professional    57
19.02.    Nondiscriminatory Exercise of Authority    57
19.03.    Claims and Review Procedures    57
19.04.    Named Fiduciary    58
19.05.    Costs of Administration    58
Article 20. Trust Agreement
20.01.    Acceptance of Trust Responsibilities    58
20.02.    Establishment of Trust Fund    58
20.03.    Exclusive Benefit    59
20.04.    Powers of Trustee    59
20.05.    Accounts    60
20.06.    Approval of Accounts    60
20.07.    Distribution from Trust Fund    60
20.08.    Transfer of Amounts from Qualified Plan    60
20.09.    Transfer of Assets from Trust    60
20.10.    Separate Trust or Fund for Existing Plan Assets    61


20.11.    Voting; Delivery of Information    60
20.12.    Compensation and Expenses of Trustee    60
20.13.    Reliance by Trustee on Other Persons    60
20.14.    Indemnification by Employer    62
20.15.    Consultation by Trustee with Counsel    62
20.16.    Persons Dealing with the Trustee    62
20.17.    Resignation or Removal of Trustee    62
20.18.    Fiscal Year of the Trust    62
20.19.    Discharge of Duties by Fiduciaries    63
20.20.    Amendment    63
20.21.    Plan Termination    63
20.22.    Permitted Reversion of Funds to Employer    63
20.23.    Governing Law    63


Preamble.

This prototype plan consists of three parts: (1) an Adoption Agreement that is a separate document incorporated by reference into this Basic Plan Document; (2) this Basic Plan Document; and (3) a Trust Agreement that is a part ofthis Basic Plan Document and is found in Article 20. Each part of the prototype plan contains substantive provisions that are integral to the operation of the plan. The Adoption Agreement is the means by which in adopting Employer elects theoptional provisions that shall apply under its plan. The Basic Plan Document describes the standard provisions elected in the Adoption Agreement. The Trust Agreement describes the powers and duties of the Trustee with respect to plan assets.

The prototype plan is intended to qualify under Code Section 401(a). Depending upon the selection made by an Adopting Employer in the AdoptionAgreement, the prototype plan may be used to implement a profit sharing plan or a profit sharing plan with a cash or deferred arrangement intended to qualify under Code Section 401(k).

Article 1. Adoption Agreement.

Article 2. Definitions.

2.01. Definitions. Wherever used herein, the following terms have the meanings set forth below, unless a different meaning is clearly required by thecontext:

(a) “Account” means an account established for the purpose of recording any contribution; made on behalf of aParticipant and any income, expenses, gains, or losses incurred thereon. The Administrator shall establish and maintain sub-accounts within a Participant’s Account as necessary to depict accurately a Participant’s interest under the Plan.

(b) “Active Participant” means any Eligible Employee who has met the requirements of Article 4 to participate in the Planand who may be entitled to receive allocations under the Plan.

(c) “Administrator” means the Employer adopting this Plan,as listed in Subsection 1.02(a) of the Adoption Agreement, or any other person designated by the Employer in Subsection 1.01(c) of the Adoption Agreement.

(d) “Adoption Agreement” means Article 1, under which the Employer establishes and adopts, or amends the Plan and Trust and designates the optional provisions selected by the Employer, and the Trusteeaccepts its responsibilities under Article 20. The provisions of the Adoption Agreement shall be an integral part of the Plan.

(e)“Annuity Starting Date” means the first day of the first period for which an amount is payable as an annuity or in any other form permitted under the Plan.

(f) “Basic Plan Document” means this Fidelity prototype plan document, qualified with the National Office of the Internal Revenue Serviceas Basic Plan Document No. 13.

(g) “Beneficiary” means the person or persons (including a trust) entitled underSection 11.04 or 14.04 to receive benefits under the Plan upon the death of a Participant; provided, however, that for purposes of Section 13.03 such term shall be applied in accordance with Code Section 401(a)(9) and the regulationsthereunder.

(h) “Break in Vesting Service” means a 12-consecutive-month period beginning on an Employee’s SeveranceDate or any anniversary thereof in which the Employee is not credited with an Hour of Service.

 

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Notwithstanding the foregoing, the following special rules apply in determining whether an Employee whois on leave has incurred a Break in Vesting Service:

(1) If an individual is absent from work because of “maternity/paternityleave” beyond the first anniversary of his Severance Date, the 12-consecutive-month period beginning on the individual’s Severance Date shall not constitute a Break in Vesting Service. For purposes of this paragraph,“maternity/paternity leave” means a leave of absence (A) by reason of the pregnancy of the individual, (B) by reason of the birth of a child of the individual, (C) by reason of the placement of a child with the individual inconnection with the adoption of such child by the individual, or (D) for purposes of caring for a child for the period beginning immediately following such birth or placement.

(2) If an individual is absent from work because of “FMLA leave” and returns to employment with the Employer or a Related Employer followingsuch “FMLA leave”, he shall not incur a Break in Vesting Service during any 12-consecutive-month period beginning on his Severance Date or anniversaries thereof in which he is absent because of such “FMLA leave”. For purposes ofthis paragraph, “FMLA leave” means an approved leave of absence pursuant to the Family and Medical Leave Act of 1993.

(i)“Code” means the Internal Revenue Code of 1986, as amended from time to time.

(j) “Compensation” means wages as definedin Code Section 3401(a) and all other payments of compensation to an Eligible Employee by the Employer (in the course of the Employer’s trade or business) for services to the Employer while employed as an Eligible Employee for whichthe Employer is required to furnish the Eligible Employee a written statement under Code Sections 6041(d) and 6051(a)(3). Compensation must be determined without regard to any rules under Code Section 3401(a) that limit theremuneration included in wages based on the nature or location of the employment or the services performed (such as the exception for agricultural labor in Code Section 3401(a)(2)).

For any Self-Employed Individual, Compensation means Earned Income; provided, however, that if the Employer elects to exclude specified items fromCompensation, such Earned Income shall be adjusted in a similar manner so that it is equivalent under regulations issued under Code Section 414(s) to Compensation for Participants who are not Self-Employed Individuals.

Compensation shall generally be based on the amount actually paid to the Eligible Employee during the Plan Year or, for purposes of Article 5 (and, forPlan Years beginning prior to January 1, 2003, Article 15) if so elected by the Employer in Subsection 1.05(b) of the Adoption Agreement, during that portion of the Plan Year during which the Eligible Employee is an Active Participant.Notwithstanding the preceding sentence, Compensation for purposes of Section 6.12 (Code Section 415 Limitations) shall be based on the amount actually paid or made available to the Participant during the Limitation Year.

If the initial Plan Year of a new plan consists of fewer than 12 months, calculated from the Effective Date listed in Subsection 1.01(g)(1) of theAdoption Agreement through the end of such initial Plan Year, Compensation for such initial Plan Year shall be determined as follows:

(1)For purposes of allocating Nonelective Employer Contributions under Section 1.11 of the Adoption Agreement (other than Nonelective Employer Contributions made in accordance with the Safe Harbor Nonelective Employer Contributions Addendum to theAdoption Agreement) and determining Highly Compensated Employees under Subsection 2.01(z), the initial Plan Year shall be the 12-month period ending on the last day of the Plan Year.

(2) For purposes of Section 6.12 (Code Section 415 Limitations) where the Limitation Year is based on the Plan Year, the Limitation Year shallbe the 12-month period ending on the last day of the Plan Year.

 

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(3) For all other purposes, the initial Plan Year shall be the period from the Effective Date listed inSubsection 1.01(g)(1) of the Adoption Agreement through the end of the initial Plan Year.

The annual Compensation of each ActiveParticipant taken into account for determining benefits provided under the Plan for any determination period shall not exceed the annual Compensation limit under Code Section 401(a)(17) as in effect on the first day of the determination period.This limit shall be adjusted by the Secretary to reflect increases in the cost of living, as provided in Code Section 401(a)(17)(B); provided, however, that the dollar increase in effect on January 1 of any calendar year is effective fordetermination periods beginning in such calendar year. If a Plan determines Compensation over a determination period that contains fewer than 12 calendar months (a “short determination period”), then the Compensation limit for such“short determination period” is equal to the Compensation limit for the calendar year in which the “short determination period” begins multiplied by the ratio obtained by dividing the number of full months in the “shortdetermination period” by 12; provided, however, that such proration shall not apply if there is a “short determination period” because (i) the Employer elected in Subsection 1.05(b) of the Adoption Agreement to determine contributionsbased only on Compensation paid during the portion of the Plan Year during which an individual was an Active Participant, (ii) an Employee is covered under the Plan less than a full Plan Year, or (iii) Deferral Contributions and/or Matching EmployerContributions are contributed for cash pay period during the Plan Year and are based on Compensation for that pay period.

(k) “ContributionPeriod” means the period for which Matching Employer and Nonelective Employer Contributions are made and calculated. The Contribution Period for additional Matching Employer Contributions, as described in Subsection 1.10(b) of the AdoptionAgreement and Nonelective Employer Contributions is the Plan Year. The Contribution Period for basic Matching Employer Contributions, as described in Subsection 1.10(a) of the Adoption Agreement, is the period specified by the Employer in Subsection1.10(c) of the Adoption Agreement.

(l) “Deferral Contribution” means any contribution made to the Plan by the Employer in accordance withthe provisions of Section 5.03.

(m) “Early Retirement Age” means the early retirement age specified in Subsection 1.13(b) of theAdoption Agreement, if any.

(n) “Earned Income” means the net earnings of a Self-Employed Individual derived from the trade or businesswith respect to which the Plan is established and for which the personal services of such individual are a material income-providing factor, excluding any items not included in gross income and the deductions allocated to such items, except that netearnings shall be determined with regard to the deduction allowed under Code Section 164(f), to the extent applicable to the Employer. Net earnings shall be reduced by contributions of the Employer to any qualified plan, to the extent adeduction is allowed to the Employer for such contributions under Code Section 404.

(o) “Effective Date” means the effective datespecified by the Employer in Subsection 1.01(g)(1) or (2) of the Adoption Agreement with respect to the Plan, if this is a new plan, or with respect to the amendment and restatement, if this is an amendment and restatement of the Plan. TheEmployer may select special Effective Dates with respect to specified Plan provisions, as set forth in Section (a) of the Special Effective Dates Addendum to the Adoption Agreement. In the event that another plan is merged into and made a part ofthe Plan, the effective date of the merger shall be reflected in Section (b) of the Special Effective Dates Addendum to the Adoption Agreement.

Ifthis is an amendment and restatement of the Plan, and the Plan was not amended prior to the effective date specified by the Employer in Subsection 1.01(g)(2) of the Adoption Agreement to comply with the requirements of the Acts specified in the SnapOff Addendum to the Adoption Agreement the effective dates

 

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specified in such Snap Off Addendum shall apply with respect to those provisions specified therein. Such effective dates may be earlier than the datespecified in Subsection 1.01(g)(2) of the Adoption Agreement.

(p) “Eligibility Computation Period” means each 12-consecutive-month periodbeginning with an Employee’s Employment Commencement Date and each anniversary thereof.

(q) “Eligibility Service” means anEmployee’s service that is taken into account in determining his eligibility to participate in the Plan as may be required under Subsection 1.04(b) of the Adoption Agreement. Eligibility Service shall be credited in accordance with Article 3.

(r) “Eligible Employee” means any Employee of the Employer who is in the class of Employees eligible to participate in the Plan. TheEmployer must specify in Subsection 1.04(c) of the Adoption Agreement any Employee or class of Employees not eligible to participate in the Plan. If Article 1 of the Employer’s Plan is a Non-Standardized Adoption Agreement, regardless of theEmployer’s selection in Subsection 1.04(c) of the Adoption Agreement, the following Employees are automatically excluded from eligibility to participate in the Plan:

(1) any individual who is a signatory to a contract, letter of agreement, or other document that acknowledges his status as an independent contractor not entitled to benefits under the Plan or who is not otherwiseclassified by the Employer as a common law employee and with respect to whom the Employer does not withhold income taxes and file Form W-2 (or any replacement Form), with the Internal Revenue Service and does not remit Social Security payments tothe Federal government, even if such individual is later adjudicated to be a common law employee; and

(2) any Employee who is a resident ofPuerto Rico.

If the Employer elects to exclude collective bargaining employees from the eligible class, the exclusion applies to anyEmployee of the Employer 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 one or more employers, unless the collective bargainingagreement requires the Employee to be covered under the Plan. The term “employee representatives” does not include any organization more than half the members of which are owners, officers, or executives of the Employer.

If the Employer does not elect to exclude Leased Employees from the eligible class, contributions or benefits provided by the leasing organization whichare attributable to services performed for the Employer shall be treated as provided by the Employer and there shall be no duplication of benefits under this Plan.

(s) “Employee” means any common law employee of the Employer or a Related Employer, any Self-Employed Individual, and any Leased Employee. Notwithstanding the foregoing, a Leased Employee shall not be considered an Employeeif Leased Employees do not constitute more than 20 percent of the Employer’s non-highly compensated work-force (taking into account all Related Employers) and the Leased Employee is covered by a money purchase pension plan maintained by theleasing organization and providing (1) a nonintegrated employer contribution rate of at least 10 percent of compensation, as defined for purposes of Code Section 415(c)(3), but including amounts contributed pursuant to a salary reductionagreement which are excludable from gross income under Code Section 125, 132(f)(4), 402(e)(3), 402(h) or 403(b), (2) full and immediate vesting, and (3) immediate participation by each employee of the leasing organization.

(t) “Employee Contribution” means any after-tax contribution made by an Active Participant to the Plan prior to the Effective Date of the Plan. TheEmployer shall not allow Active Participants to make any Employee Contributions to the Plan on or after the Effective Date.

 

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(u) “Employer” means the employer named in Subsection 1.02(a) of the Adoption Agreement and any RelatedEmployer included as an Employer under this Subsection 2.01(u). If Article 1 of the Employer’s Plan is a Standardized Adoption Agreement, the term “Employer” includes all Related Employers provided, however, that if an employerbecomes a Related Employer as a result of an asset or stock acquisition, merger or other similar transaction, the term “Employer” shall not include such employer for periods prior to the earlier of (1) the date as of which Subsection1.02(b) of the Adoption Agreement is amended to name such employer or (2) the first day of the second Plan Year beginning after the date of such transaction. If Article 1 of the Employer’s Plan is a Non-Standardized Adoption Agreement, the term“Employer” includes only those Related Employers designated in Subsection 1.02(b) of the Adoption Agreement.

If the organizationor other entity named in the Adoption Agreement is a sole proprietor or a professional corporation and the sole proprietor of such proprietorship or the sole shareholder of the professional corporation dies, then the legal representative of suchsole proprietor or shareholder shall be deemed to be the Employer until such time as, through the disposition of such sole proprietor’s or sole shareholder’s estate or otherwise, any organization or other entity succeeds to the interestsof the sole proprietor in the proprietorship or the sole shareholder in the professional corporation. The legal representative of a sole proprietor or shareholder shall be (1) the person appointed as such by the sole proprietor or shareholderprior to his death under a legally enforceable power of attorney, or, if none, (2) the executor or administrator of the sole proprietor’s or shareholder’s estate.

If one of the Employers designated in Subsection 1.02(b) of the Adoption Agreement is not a Related Employer, the term “Employer” includes suchun-Related Employer and the provisions of Section 18.05 shall apply.

(v) “Employment Commencement Date” means the date on which anEmployee first performs an Hour of Service.

(w) “Entry Date” means the date specified by the Employer in Subsection 1.04(d) of theAdoption Agreement as of which an Eligible Employee who has met the applicable eligibility requirements begins to participate in the Plan.

(x)“ERISA” means the Employee Retirement Income Security Act of 1974, as from time to time amended.

(y) “Fund Share” meansthe share, unit, or other evidence of ownership in a Permissible Investment.

(z) “Highly Compensated Employee” means both highlycompensated active Employees and highly compensated former Employees.

A highly compensated active Employee includes any Employee whoperforms service for the Employer during the “determination year” and who (1) at any time during the “determination year” or the “look-back year” was a five percent owner or (2) received Compensation from theEmployer during the “look-back year” in excess of $80,000 (as adjusted pursuant to Code Section 415(d)) and, if elected by the Employer in Section 1.06 of the Adoption Agreement, was a member of the top-paid group for such year.

For this purpose, the “determination year” shall be the Plan Year. The “look-back year” shall be the twelve-monthperiod immediately preceding the “determination year”, unless the Employer has elected in Section 1.06 of the Adoption Agreement to make the “look-back year” the calendar year beginning within the preceding Plan Year.

A highly compensated former Employee includes any Employee who separated from service (or was deemed to have separated) prior to the“determination year”, performs no service for the Employer during the

 

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“determination year”, and was a highly compensated active Employee for either the separation year or any “determination year” ending onor after the Employee’s 55th birthday, as determined under the rules in effect for determining Highly Compensated Employees for such separation year or “determination year”.

The determination of who is a Highly Compensated Employee, including the determinations of the number and identity of Employees in the top-paid group,shall be made in accordance with Code Section 414(q) and the Treasury Regulations issued thereunder.

For purposes of this Subsection2.01(z), Compensation shall include amounts that are not includable in the gross income of an Employee under a salary reduction agreement by reason of the application of Code Section 125, 132(f)(4), 402(c)(3), 402(h), or 403(b).

(aa) “Hour of Service”, with respect to any individual, means:

(1) Each hour for which the individual is directly or indirectly paid, or entitled to payment, for the performance of duties for the Employer or a Related Employer, each such hour to be credited to the individual forthe Eligibility Computation Period in which the duties were performed;

(2) Each hour for which the individual is directly or indirectlypaid, or entitled to payment, by the Employer or a Related Employer (including payments made or due from a trust fund or insurer to which the Employer contributes or pays premiums) on account of a period of time during which no duties are performed(irrespective of whether the employment relationship has terminated) due to vacation, holiday, illness, incapacity, disability, layoff, jury duty, military duty, or leave of absence, each such hour to be credited to the individual for theEligibility Computation Period in which such period of time occurs, subject to the following rules:

(A) No more than 501 Hours of Serviceshall be credited under this paragraph (2) on account of any single continuous period during which the individual performs no duties unless the individual performs no duties because of military duty, the individual’s employment rights areprotected by law, and the individual returns to employment with the Employer or a Related Employer during the period that his employment rights are protected under Federal law;

(B) Hours of Service shall not be credited under this paragraph (2) for a payment which solely reimburses the individual for medically-relatedexpenses, or which is made or due under a plan maintained solely for the purpose of complying with applicable worker’s compensation, unemployment compensation or disability insurance laws; and

(C) If the period during which the individual performs no duties falls within two or more Eligibility Computation Periods and if the payment made onaccount of such period is not calculated on the basis of units of time, the Hours of Service credited with respect to such period shall be allocated between not more than the first two such Eligibility Computation Periods on any reasonable basisconsistently applied with respect to similarly situated individuals;

(3) Each hour not counted under paragraph (1) or (2) forwhich he would have been scheduled to work for the Employer or a Related Employer during the period that he is absent from work because of military duty, provided the individual’s employment rights are protected under Federal law and theindividual returns to work with the Employer or a Related Company during the period that his employment rights are protected, each such hour to be credited to the individual for the Eligibility Computation Period for which he would have beenscheduled to work; and

 

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(4) Each hour not counted under paragraph (1), (2), or (3) for which back pay, irrespective ofmitigation of damages, has been either awarded or agreed to be paid by the Employer or a Related Employer, shall be credited to the individual for the Eligibility Computation Period to which the award or agreement pertains rather than theEligibility Computation Period in which the award, agreement, or payment is made.

For purposes of paragraphs (2) and (4) above,Hours of Service shall be calculated in accordance with the provisions of Section 2530.200b-2(b) of the Department of Labor regulations, which are incorporated herein by reference.

Notwithstanding any other provision of this Subsection to the contrary, the Employer may elect to credit Hours of Service in accordance with any of theequivalencies set forth in paragraphs (d), (e), or (f) of Department of Labor Regulations Section 2530.200b-3.

(bb) “InactiveParticipant” means any individual who was an Active Participant, but is no longer an Eligible Employee and who has an Account under the Plan.

(cc) “Investment Professional” or “Financial Advisor” or “Broker” or “Registered Investment Advisor” (collectively, the “Investment Professional”) meansany (1) securities broker-dealer registered under the Securities Exchange Act of 1934, (2) bank, as defined in Section 3(a)(6) of the Securities Exchange Act of 1934, or (3) investment advisor registered under the Investment AdvisorsAct of 1940 that the Employer designates as its agent for certain purposes in a separate written communication provided to the Trustee or recordkeeper.

(dd) “Leased Employee” means any individual who provides services to the Employer or a Related Employer (the “recipient”) but is not otherwise an employee of the recipient if (1) such services are providedpursuant to an agreement between the recipient and any other person (the “leasing organization”), (2) such individual has performed services for the recipient (or for the recipient and any related persons within the meaning of CodeSection 414(n)(6)) on a substantially full-time basis for at least one year, and (3) such services are performed under primary direction of or control by the recipient. The determination of who is a Leased Employee shall be made inaccordance with any rules and regulations issued by the Secretary of the Treasury or his delegate.

(ee) “Limitation Year” means the12-consecutive-month period designated by the Employer in Subsection 1.01(f) of the Adoption Agreement. If no other Limitation Year is designated by the Employer, the Limitation Year shall be the calendar year. All qualified plans of the Employerand any Related 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.

(ff) “Matching Employer Contribution” means any contribution made by the Employer to the Plan in accordance with Section 5.08 or5.09 on account of an Active Participant’s Deferral Contributions.

(gg) “Mass Submitter Sponsor” means FidelityManagement & Research Company or its successor.

(hh) “Nonelective Employer Contribution” means any contribution made by theEmployer to the Plan in accordance with Section 5.10.

(ii) “Non-Highly Compensated Employee” means any Employee who is not aHighly Compensated Employee.

(jj) “Normal Retirement Age” means the normal retirement age specified in Subsection 1.13(a) of the AdoptionAgreement. If the Employer enforces a mandatory retirement age in accordance with Federal law, the

 

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Normal Retirement Age is the lesser of that mandatory age or the age specified in Subsection 1.13(a) of the Adoption Agreement.

(kk) “Participant” means any individual who is either an Active Participant or an Inactive Participant.

(ll) “Permissible Investment” means the investments specified by the Employer as available for investment of assets of the Trust and agreed to by theTrustee and the Prototype Sponsor. The Permissible Investments under the Plan shall be listed in the Service Agreement.

(mm) “Plan” meansthe plan established by the Employer in the form of the prototype plan, as set forth herein as a new plan or as an amendment to an existing plan, by executing the Adoption Agreement, together with any and all amendments hereto.

(nn) “Plan Year” means the 12-consecutive-month period ending on the date designated by the Employer in Subsection 1.01(d) of the Adoption Agreement,except that the initial Plan Year of a new Plan may consist of fewer than 12 months, calculated from the Effective Date listed in Subsection 1.01 g)(l) of the Adoption Agreement through the end of such initial Plan Year, in which event Compensationfor such initial Plan Year shall be treated as provided in Subsection 2.01(j).

(oo) “Prototype Sponsor” means FidelityManagement & Research Company or its successor.

(pp) “Qualified Matching Employer Contribution” means any contribution made bythe Employer to the Plan on account of Deferral Contributions made on behalf of Non-Highly Compensated Participants in accordance with Section 5.09, that may be included in determining whether the Plan meets the “ADP” test describedin Section 6.03.

(qq) “Qualified Nonelective Employer Contribution” means any contribution made by the Employer to the Plan onbehalf of Non-Highly Compensated Employees in accordance with Section 5.0_, that may be included in determining whether the Plan meets the “ADP” test described in Section 6.03 or the “ACP” test described inSection 6.06.

(rr) “Reemployment Commencement Date” means the date on which an Employee who terminates employment with the Employerand all Related Employers first performs an Hour of Service following such termination of employment.

(ss) “Related Employer” means anyemployer other than the Employer named in Subsection 1.02(a) of the Adoption Agreement if the Employer and such other employer are members of a controlled group of corporations (as defined in Code Section 414(b)) or an affiliated service group(as defined in Code Section 414(m)), or are trades or businesses (whether or not incorporated) which are under common control (as defined in Code Section 414(c)), or such other employer is required to be aggregated with the Employerpursuant to regulations issued under Code Section 414(o); provided, however, that if Article 1 of the Employer’s Plan is a Standardized Adoption Agreement, for purposes of Subsection 1.02(b) of the Adoption Agreement, the term“Related Employer” shall not include any employer that becomes a Related Employer as a result of an asset or stock acquisition, merger or other similar transaction with respect to any period prior to the earlier of (1) the date as of whichSubsection 1.02(b) of the Adoption Agreement is amended to name such employer or (2) the first day of the second Plan Year beginning after the date of such transaction.

(tt) “Required Beginning Date” means:

(1) for a Participant who is not a five percentowner, April 1 of the calendar year following the calendar year in which occurs the later of (i) the Participant’s retirement or (ii) the Participant’s attainment of

 

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age 70 1/2; provided, however, that a Participant may elect to have his Required Beginning Date determined without regard tothe provisions of clause (i).

(2) for a Participant who is a five percent owner, April 1 of the calendar year following the calendaryear in which the Participant attains age 70 1/2.

Once the Required Beginning Date of a five percent owner or a Participant who has elected to have his Required Beginning Date determined in accordancewith the provisions of Section 2.01 (tt)(1)(ii) has occurred, such Required Beginning Date shall not be re-determined, even if the Participant ceases to be a five percent owner in a subsequent year or continues in employment with the Employeror a Related Employer.

For purposes of this Subsection 2.0l(tt), a Participant is treated as a five percent owner if such Participant is afive percent owner as defined in Code Section 416(i) (determined in accordance with Code Section 416 but without regard to whether the Plan is top-heavy) at any time during the Plan Year ending with or within the calendar year in whichsuch owner attains age 70 1/2.

(uu) “Rollover Contribution” means any distribution from a qualified plan (or an individual retirement account holding only assets allocable to a distribution from a qualified plan) that an Employeeelects to contribute to the Plan in accordance with the provisions of Section 5.06.

(vv) “Self-Employed Individual” means anindividual who has Earned Income for the taxable year from the Employer or who would have had Earned Income but for the fact that the trade or business had no net profits for the taxable year, including, but not limited to, a partner in apartnership, a sole proprietor, a member in a limited liability company or a shareholder in a subchapter S corporation.

(ww) “ServiceAgreement” means the agreement between the Employer and the Prototype Sponsor (or an agent or affiliate of the Prototype Sponsor) relating to the provision of investment and other services to the Plan and shall include any addendum to theagreement and any other separate written agreement between the Employer and the Prototype Sponsor (or an agent or affiliate of the Prototype Sponsor) relating to the provision of services to the Plan.

(xx) “Severance Date” means the earlier of (i) the date an Employee retires, dies, quits, or is discharged from employment with the Employer and allRelated Employers or (ii) the 12-month anniversary of the date on which the Employee was otherwise first absent from employment; provided, however, that if an individual terminates or is absent from employment with the Employer and all RelatedEmployers because of military duty, such individual shall not incur a Severance Date if his employment rights are protected under Federal law and he returns to employment with the Employer or a Related Employer within the period during which heretains such employment rights, but, if he does not return to such employment within such period, his Severance Date shall be the earlier of (1) the anniversary of the date his absence commenced or (2) he last day of the period duringwhich he retains such employment rights.

(yy) “Trust” means the trust created by the Employer in accordance with the provisions ofSection 20.01.

(zz) “Trust Agreement” means the agreement between the Employer and the Trustee, as set forth in Article 20. underwhich the assets of the Plan are held, administered, and managed.

(aaa) “Trustee” means the trustee designated in Section 1.03 ofthe Adoption Agreement, or its successor. The term Trustee shall include any delegate of the Trustee as may be provided in the Trust Agreement.

(bbb)“Trust Fund” means the property held in Trust by the Trustee for the Accounts of Participants and their Beneficiaries.

 

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(ccc) “Vesting Service” means an Employee’s service that is taken into account in determining hisvested interest in his Matching Employer and Nonelective Employer Contributions Accounts as may be required under Section 1.15 of the Adoption Agreement. Vesting Service shall be credited in accordance with Article 3.

2.02. Pronouns. Pronouns used in the Plan are in the masculine gender but include the feminine gender unless the context clearly indicates otherwise.

2.03. Special Effective Dates. Some provisions of the Plan are only effective beginning is of a specified date or until a specified date.Any such special effective dates are specified within Plan text where applicable and are exceptions to the general Plan Effective Date as defined in Section 2.01(o).

Article 3. Service.

3.01. Crediting of Eligibility Service. If the Employer has selectedan Eligibility Service requirement in Subsection 1.04(b) of the Adoption Agreement for an Eligible Employee to become an Active Participant, Eligibility Service shall be credited to an Employee as follows:

(a) If the Employer has selected the one year of Eligibility Service requirement described in Subsection 1.04(b)(1)(D) of the Adoption Agreement, anEmployee shall be credited with a year of Eligibility Service for each Eligibility Computation Period during which the Employee has been credited with at least 1,000 Hours of Service.

(b) If the Employer has selected the three or six months of Eligibility Service requirement described in Subsection 1.04(b)(1)(B) or (C) of theAdoption Agreement, an Employee shall be credited with Eligibility Service for the aggregate of the periods beginning with the Employee’s Employment Commencement Date (or Reemployment Commencement Date) and ending on his subsequent SeveranceDate; provided, however, that an Employee who has a Reemployment Date within the 12-consecutive-month period following the earlier of the first date of his absence or his Severance Date shall be credited with Eligibility Service for the periodbetween his Severance Date and his Reemployment Date. Months of Eligibility Service shall be measured from the Employee’s Employment Commencement Date or Reemployment Commencement Date to the coinciding date in the applicable following month.

3.02. Re-Crediting of Eligibility Service Following Termination of Employment. An Employee whose employment with the Employer and allRelated Employers terminates and who is subsequently reemployed by the Employer or a Related Employer shall be re-credited upon reemployment with his Eligibility Service earned prior to his termination of employment.

3.03. Crediting of Vesting Service. If the Plan provides for Matching Employer and/or Nonelective Employer Contributions that are not 100 percent vestedwhen made, Vesting Service shall be credited to an Employee for the aggregate of the periods beginning with the Employee’s Employment Commencement Date (or Reemployment Commencement Date) and ending on his subsequent Severance Date; provided,however, that an Employee who has a Reemployment Date within the 12-consecutive-month period following the earlier of the first date of his absence or his Severance Date shall be credited with Vesting Service for the period between his SeveranceDate and his Reemployment Date. Fractional periods of a year shall be expressed in terms of days.

3.04. Application of Vesting Service to aParticipant’s Account Following a Break in Vesting Service. The following rules describe how Vesting Service earned before and after a Break in Vesting Service shall be applied for purposes of determining a Participant’s vestedinterest in his Matching Employer and Nonelective Employer Contributions Accounts.

 

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(a) If a Participant incurs five-consecutive Breaks in Vesting Service, all years of Vesting Serviceearned by the Employee after such Breaks in Service shall be disregarded in determining the Participant’s vested interest in his Matching Employer and Nonelective Employer Contributions Account balances attributable to employment before suchBreaks in Vesting Service. However, Vesting Service earned both before and after such Breaks in Vesting Service shall be included in determining the Participant’s vested interest in his Matching Employer and Nonelective Employer ContributionsAccount balances attributable to employment after such Breaks in Vesting Service.

(b) If a Participant incurs fewer than five-consecutiveBreaks in Vesting Service, Vesting Service earned both before and after such Breaks in Vesting Service shall be included in determining the Participant’s vested interest in his Matching Employer and Nonelective Employer Contributions Accountbalances attributable to employment both before and after such Breaks in Vesting Service.

3.05. Service with Predecessor Employer. Ifthe Plan is the plan of a predecessor employer, an Employee’s Eligibility and Vesting Service shall include years of service with such predecessor employer. In any case in which the Plan is not the plan maintained by a predecessor employer,service for such predecessor employer shall be treated as Eligibility and Vesting Service if so specified in Section 1.16 of the Adoption Agreement.

3.06. Change in Service Crediting. If an amendment to the Plan or a transfer from employment as an Employee covered under another qualified plan maintained by the Employer or a Related Employer results in a change inthe method of crediting Eligibility and/or Vesting Service with respect to a Participant between the Hours of Service crediting method set forth in Section 2530.200b-2 of the Department of Labor Regulations and the elapsed-time crediting methodset forth in Section 1.410(a)-7 of the Treasury Regulations, each Participant with respect to whom the method of crediting Eligibility and/or Vesting Service is changed shall be treated in the manner set forth in Section 1.410(a)-7(f)(1)of the Treasury Regulations which are incorporated herein by reference.

Article 4. Participation.

4.01. Date of Participation. If the Plan is an amendment and restatement of a prior plan, all Eligible Employees who were active participants in thePlan immediately prior to the Effective Date shall continue as Active Participants on the Effective Date. All Eligible Employees who are in the service of the Employer on the Effective Date (and, if this is an amendment and restatement of a priorplan, were not active participants in the prior plan immediately prior to the Effective Date) shall become Active Participants on the date elected by the Employer in Subsection 1.04(c) of the Adoption Agreement. Any other Eligible Employee shallbecome an Active Participant in the Plan on the Entry Date coinciding with or immediately following the date on which he first satisfies the eligibility requirements set forth in Subsections 1.04(a) and 1.04(b) of the Adoption Agreement.

4.02. Transfers Out of Covered Employment. If any Active Participant ceases to be an Eligible Employee, but continues in the employ of theEmployer or a Related Employer, such Employee shall cease to be an Active Participant, but shall continue as an Inactive Participant until his entire Account balance is forfeited or distributed. An Inactive Participant shall not be entitled toreceive an allocation of contributions or forfeitures under the Plan for the period that he is not an Eligible Employee and wages and other payments made to him by the Employer or a Related Employer for services other than as an Eligible Employeeshall not be included in Compensation for purposes of determining the amount and allocation of any contributions to the Account of such Inactive Participant. Such Inactive Participant shall continue to receive credit for Vesting Service completedduring the period that he continues in the employ of the Employer or a Related Employer.

4.03. Transfers Into Covered Employment. If anEmployee who is not an Eligible Employee becomes an Eligible Employee, such Eligible Employee shall become an Active Participant immediately as of his transfer date if such Eligible Employee has already satisfied the eligibility requirements andwould have otherwise previously become an

 

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Active Participant in accordance with Section 4.01. Otherwise, such Eligible Employee shall become an Active Participant in accordance withSection 4.01.

Wages and other payments made to an Employee prior to his becoming an Eligible Employee by the Employer or a RelatedEmployer for services other than as an Eligible Employee shall not be included in Compensation for purposes of determining the amount and allocation of any contributions to the Account of such Eligible Employee.

4.04. Resumption of Participation Following Reemployment. If a Participant who terminates employment with the Employer and all Related Employers isreemployed as an Eligible Employee, he shall again become an Active Participant on his Reemployment Date. Any other Employee who terminates employment with the Employer and all Related Employers and is reemployed by the Employer or a RelatedEmployer shall become an Active Participant as provided in Section 4.01 or 4.03. Any distribution which a Participant is receiving under the Plan at the time he is reemployed by the Employer or a Related Employer shall cease except as otherwiserequired under Section 12.04.

Article 5. Contributions.

5.01. Contributions Subject to Limitations. All contributions made to the Plan under this Article 5 shall be subject to the limitations contained in Article 6.

5.02. Compensation Taken into Account in Determining Contributions. In determining the amount or allocation of any contribution that is based on apercentage of Compensation, only Compensation paid to a Participant for services rendered to the Employer while employed as an Eligible Employee shall be taken into account. Except as otherwise specifically provided in this Article 5, for purposesof determining the amount and allocation of contributions under this Article 5, Compensation shall not include reimbursements or other expense allowances, fringe benefits (cash and non-cash), moving expenses, deferred compensation, welfare benefits,and any items elected by the Employer with respect to such contributions in Subsection 1.05(a) of the Adoption Agreement, but shall include amounts that are not includable in the gross income of the Participant under a salary reduction agreement byreason of the application of Code Section 125, 132(f)(4), 402(e)(3), 402(h), 403(b), or 457(b).

If the initial Plan Year of a newplan consists of fewer than 12 months, calculated from the Effective Date listed in Subsection 1.01(g)(1) of the Adoption Agreement through the end of such initial Plan Year, except as otherwise provided in this paragraph. Compensation for purposesof determining the amount and allocation of contributions under this Article 5 for such initial Plan Year shall include only Compensation for services during the period beginning on the Effective Date listed in Subsection 1.01(g)(1) of the AdoptionAgreement and ending on the last day of the initial Plan Year. Notwithstanding the foregoing, if the Plan is a profit sharing plan, Compensation for purposes of determining the amount and allocation of non-safe harbor Nonelective EmployerContributions under this Article 5 for such initial Plan Year shall include Compensation for the full 12-consecutive-month period ending on the last day of the initial Plan Year.

5.03. Deferral Contributions. If so provided by the Employer in Subsection 1.07(a) of the Adoption Agreement, each Active Participant may elect to execute a salary reduction agreement withthe Employer to reduce his Compensation by a specified percentage or dollar amount, not exceeding the percentage specified by the Employer in Subsection 1.07(a)(1) of the Adoption Agreement, per payroll period, subject to any exceptions elected bythe Employer in Subsections 1.07(a)(2) and (3) of the Adoption Agreement, and equal to a whole number multiple of one percent. If elected by the Employer in Subsection 1.07(a)(1)(A) of the Adoption Agreement, in lieu of specifying a percentageof Compensation reduction, an Active Participant may elect to reduce his Compensation by a specified dollar amount per payroll period, provided that such dollar amount may not exceed the percentage of Compensation specified by the Employer inSubsection 1.07(a)(1) of the Adoption Agreement, subject to any exceptions elected by the Employer in Subsections 1.07(a)(2) and (3) of the Adoption Agreement.

 

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An Active Participant’s salary reduction agreement shall become effective on the first day of thefirst payroll period for which the Employer can reasonably process the request, but not earlier than the later of (a) the effective date of the provisions permitting Deferral Contributions or (b) the date the Employer adopts such provisions. TheEmployer shall make a Deferral Contribution on behalf of the Participant corresponding to the amount of said reduction. Under no circumstances may a salary reduction agreement be adopted retroactively.

An Active Participant may elect to change or discontinue the percentage or dollar amount by which his Compensation is reduced by notice to the Employeras provided in Subsection 1.07(a)(1)(B) or (C) of the Adoption Agreement. Notwithstanding the provisions of Subsection 1.07(a)(1)(B) or (C) of the Adoption Agreement, if the Employer has elected one of the safe harbor contributions inSubsection 1.10(a)(3) or 1.11(a)(3) of the Adoption Agreement, an Active Participant may elect to change or discontinue the percentage or dollar amount by which his Compensation is reduced by notice to the Employer within a reasonable period,as specified by the Employer (but not less than 30 days), of receiving the notice described in Section 6.10.

5.04. EmployeeContributions. The Employer shall not allow Participants to make Employee Contributions to the Pan. Employee Contributions made to the Plan prior to the Effective Date shall be maintained in a separate account.

5.05. No Deductible Employee Contributions. No deductible Employee Contributions may be made to the Plan. Deductible Employee Contributions madeprior to January 1, 1987 shall be maintained in a separate Account. No part of the deductible Employee Contributions Account shall be used to purchase life insurance.

5.06. Rollover Contributions. An Eligible Employee who is or was entitled to receive an eligible rollover distribution, as defined in Code Section 402(c)(4) and Treasury Regulations issuedthereunder, from a qualified plan (or an individual retirement account holding only assets attributable to a distribution from a qualified plan) may elect to contribute all or any portion of such distribution to the Trust directly from suchqualified plan or individual retirement account or within 60 days of receipt of such distribution to the Eligible Employee. Rollover Contributions shall only be made in the form of cash, allowable Fund Shares, or, if and to the extent permitted bythe Employer with the consent of the Trustee, promissory notes evidencing a plan loan to the Eligible Employee; provided, however, that Rollover Contributions shall only be permitted in the form of promissory notes of the Plan otherwise provides forloans.

An Eligible Employee who has not yet become an Active Participant in the Plan in accordance with the provisions of Article 3 maymake a Rollover Contribution to the Plan. Such Eligible Employee shall be treated as a Participant under the Plan for all purposes of the Plan, except eligibility to have Deferral Contributions made on his behalf and to receive an allocation ofMatching Employer or Nonelective Employer Contributions.

The Administrator shall develop such procedures and require such information fromEligible Employees as it deems necessary to ensure that amounts contributed under this Section 5.06 meet the requirements for tax-deferred rollovers established by this Section 5.06 and by Code Section 402(c). No RolloverContributions may be made to the Plan until approved by the Administrator.

If a Rollover Contribution made under this Section 5.06 islater determined by the Administrator not to have met the requirements of this Section 5.06 or of the Code or Treasury regulations, the Trustee shall, within a reasonable time after such determination is made, and on instructions from theAdministrator, distribute to the Employee the amounts then held in the Trust attributable to such Rollover Contribution.

AParticipant’s Rollover Contributions Account shall be subject to the terms of the Plan, including Article 14, except as otherwise provided in this Section 5.06.

Notwithstanding any other provision of this Section 5.06, the Employer may direct the Trustee not to accept Rollover Contributions.

 

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5.07. Qualified Nonelective Employer Contributions. The Employer may, in is discretion, make a QualifiedNonelective Employer Contribution for the Plan Year in any amount necessary to satisfy or help to satisfy the “ADP” test, described in Section 6.03, and/or the “ACP” test, described in Section 6.06. QualifiedNonelective Employer Contributions shall be made and allocated based on Participants’ “testing compensation”, as defined in Subsection 6.01(t), rather than Compensation, as defined in Subsection 2.01(j). Any Qualified NonelectiveEmployer Contribution shall be allocated among the Accounts of Non-Highly Compensated Employees who are Active Participants at any time during the Plan Year in one of the following manners as elected by the Employer:

(a) in the ratio that each eligible Active Participant’s “testing compensation”, as defined in Subsection 6.01(t), for the Plan Year bearsto the total “testing compensation” paid to all eligible Active Participants for the Plan Year; or

(b) as a uniform flat dollaramount for each eligible Active Participant for the Plan Year.

Active Participants shall not be required to satisfy any Hours of Serviceor employment requirement for the Plan Year in order to receive an allocation of Qualified Nonelective Employer Contributions.

QualifiedNonelective Employer Contributions shall be distributable only in accordance with the distribution provisions that are applicable to Deferral Contributions; provided, however, that a Participant shall not be permitted to take a hardship withdrawalof amounts credited to his Qualified Nonelective Employer Contributions Account after the later of December 31, 1988 or the last day of the Plan Year ending before July 1, 1980.

5.08. Matching Employer Contributions. If soprovided by the Employer in Section 1.10 of the Adoption Agreement, the Employer shall make a Matching Employer Contribution on behalf of each eligible Active Participant, as determined in accordance with Subsection 1.10(d) and Section 1.12 ofthe Adoption Agreement, who had Deferral Contributions made on his behalf during the Contribution Period. The amount of the Matching Employer Contribution shall be determined in accordance with Subsection 1.10(a) and/or (b) and/or the Safe HarborMatching Employer Contribution Addendum to the Adoption Agreement, as applicable.

5.09. Qualified Matching Employer Contributions. If soprovided by the Employer in Subsection 1.10(c) of the Adoption Agreement, the Employer may make a Qualified Matching Employer Contribution on behalf of each Active Participant who is a Non-Highly Compensated Employee and who had DeferralContributions made on his behalf during the Plan Year. The amount of the Qualified Matching Employer Contribution shall be determined in accordance with Subsection 1.10(c). Qualified Matching Employer Contributions shall be distributable only inaccordance with the distribution provisions that are applicable to Deferral Contributions; provided, however, that a Participant shall not be permitted to take a hardship withdrawal of amounts credited to his Qualified Matching EmployerContributions Account after the later of December 31, 1988 or the last day of the Plan Year ending before July 1, 1989.

For the amount of anEmployer’s Qualified Matching Employer Contribution is determined based on a Participant’s Compensation, and the Qualified Matching Employer Contribution is necessary to satisfy the “ADP” test described in Section 6.03, thecompensation used in determining the amount of the Qualified Matching Employer Contribution shall be “testing compensation”, as defined in Subsection 6.01(t). If the Qualified Matching Employer Contribution is not necessary to satisfy the“ADP” test described in Section 6.03, the compensation used to determine the amount of the Qualified Matching Employer Contribution shall be Compensation as defined in Subsection 2.01(j), modified as provided in Section 5.02.

 

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5.10. Nonelective Employer Contributions. If so provided by the Employer in Section 1.11 of theAdoption Agreement, the Employer shall make Nonelective Employer Contributions to the Trust in accordance with Subsection 1.11(a) and/or (b) of the Adoption Agreement to be allocated as follows:

(a) If the Employer has elected a fixed contribution formula, Nonelective Employer Contributions shall be allocated among eligible Active Participants, as determined inaccordance with Subsection 1.11(c) and Section 1.12 of the Adoption Agreement, in the manner specified in Subsection 1.11(a) or the Safe Harbor Nonelective Employer Contribution Addendum to the Adoption Agreement, as applicable.

(b) If the Employer has elected a discretionary contribution amount, Nonelective Employer Contributions shall be allocated among eligible Active Participants, asdetermined in accordance with Subsection 1.11(c) and Section 1.12 of the Adoption Agreement, as follows:

(1) If the non-integratedformula is elected in Subsection 1.11(b)(1) of the Adoption Agreement, Nonelective Employer Contributions shall be allocated to eligible Active Participants in the ratio that each eligible Active Participant’s Compensation bears to the totalCompensation paid to all eligible Active Participants for the Plan Year; provided, however, that if the Plan is or is deemed to be a “top-heavy plan”, as defined in Subsection 15.01 (f), for any Plan Year, these allocation provisions shallbe modified as provided in Section 15.04; or

(2) If the integrated formula is elected in Subsection 1.11(b)(2) of the AdoptionAgreement, Nonelective Employer Contributions shall be allocated in the following steps:

(A) First, to each eligible Active Participant inthe same ratio that the sum of the eligible Active Participant’s Compensation and “excess Compensation” for the Plan Year bears to the sum of the Compensation and “excess Compensation” of all eligible Active Participants forthe Plan Year. This allocation as a percentage of the sum of each eligible Active Participant’s Compensation and “excess Compensation” shall not exceed the “permitted disparity limit”, as defined in Section 1.11 of theAdoption Agreement.

Notwithstanding the foregoing, if in any Plan Year an eligible Active Participant has reached the“cumulative permitted disparity limit”, such eligible Active Participant shall receive an allocation under this Subsection 5.10(b)(2)(A) based on two times his Compensation for the Plan Year, rather than the sum of his Compensation and“excess Compensation” for the Plan Year. If an Active Participant did not benefit under a qualified defined benefit plan or target benefit plan for any Plan Year beginning on or after January 1, 1994, the Active Participant shall haveno “cumulative disparity limit”.

(B) Second, if any Nonelective Employer Contributions remain after the allocation in Subsection5.10(b)(2)(A), the remaining Nonelective Employer Contributions shall be allocated to each eligible Active Participant in the same ratio that the eligible Active Participant’s Compensation for the Plan Year bears to the total Compensation ofall eligible Active Participants for the Plan Year.

Notwithstanding the provisions of Subsections 5.10(b)(2)(A) and(B) above, if in any Plan Year an eligible Active Participant benefits under another qualified plan or simplified employee pension, as defined in Code Section 408(k), that provides for or imputes permitted disparity, the NonelectiveEmployer Contributions for the Plan Year allocated to such eligible Active Participant shall be in the ratio that his Compensation for the Plan Year bears to the total Compensation paid to all eligible Active Participants.

If the Plan is or is deemed to be a “top-heavy plan”, as defined in Subsection 15.01(f), for any Plan Year, the allocation stepsin Subsections 5.10(b)(2)(A) and (B) shall be modified as provided in Section 15.04.

 

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For purposes of this Subsection 5.10(b)(2), the following definitions shall apply:

(C) “Cumulative permitted disparity limit” means 35 multiplied by the sum of an Active Participant’s annual permitted disparityfractions, as defined in Sections 1.401(1)-5(b)(3) through (b)(7) of the Treasury Regulations, attributable to the Active Participant’s total years of service under the Plan and any other qualified plan or simplified employee pension, asdefined in Code Section 408(k), maintained by the Employer or a Related Employer. For each Plan Year commencing prior to January 1, 1989, the annual permitted disparity fraction shall be deemed to be one, unless the Participant neveraccrued a benefit under any qualified plan or simplified employee pension maintained by the Employer or a Related Employer during any such Plan Year. In determining the annual permitted disparity fraction for any Plan Year, the Employer may elect toassume that the full disparity limit has been used for such Plan Year.

(D) “Excess Compensation” means Compensation inexcess of the “integration level” specified by the Employer in Subsection 1.11(b)(2) of the Adoption Agreement.

5.11. Vested Interest inContributions. A Participant’s vested interest in the following sub-accounts shall be 100 percent:

(a) his DeferralContributions Account;

(b) his Qualified Nonelective Contributions Account;

(c) his Qualified Matching Employer Contributions Account;

(d) his Nonelective Employer Contributions Account attributable to Nonelective Employer Contributions made in accordance with the Safe Harbor Nonelective Employer Contribution Addendum to the Adoption Agreement thatare intended to satisfy the safe harbor contribution requirement for deemed satisfaction of the “ADP” test described in Section 6.03;

(e) his Matching Employer Contributions Account attributable to Matching Employer Contributions made in accordance with the Safe Harbor Matching Employer Contribution Addendum to the Adoption Agreement that are intended to satisfy the safeharbor contribution requirement for deemed satisfaction of the “ADP” test described in Section 6.03;

(f) his RolloverContributions Account;

(g) his Employee Contributions Account; and

(h) his deductible Employee Contributions Account.

A Participant’s vested interest in his Nonelective Employer Contributions Account attributable to Nonelective Employer Contributions other than those described in Subsection 5.11(d) above, shall be determined in accordance with thevesting schedule elected by the Employer in Subsection 1.15(a) of the Adoption Agreement. A Participant’s vested interest in his Matching Employer Contributions Account attributable to Matching Employer Contributions other than those describedin Subsection 5.11(e) above, shall be determined in accordance with the vesting schedule elected by the Employer in Subsection 1.15(a) of the Adoption Agreement.

5.12. Time for Making Contributions. The Employer shall pay its contribution for each Plan Year not later than the time prescribed by law for filing the Employer’s Federal income tax return for the fiscal (ortaxable) year with or within which such Plan Year ends (including extensions thereof).

 

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the Trustee no later than the last day of the immediately following Plan Year quarter.

The Employer should remit Deferral Contributions to the Trustee as of the earliest date on which such contributions can reasonably besegregated from the Employer’s general assets, but not later than the 15th business day of the calendar monthfollowing the month in which such amount otherwise would have been paid to the Participant, or within such other time frame as may be determined by applicable regulation or legislation.

The Trustee shall have no authority to inquire into the correctness of the amounts contributed and paid over to the Trustee, to determine whether anycontribution is payable under this Article 5, or to enforce, by suit or otherwise, the Employer’s obligation, if any, to make a contribution to the Trustee.

5.13. Return of Employer Contributions. The Trustee shall, upon request by the Employer, return to the Employer the amount (if any) determined under Section 20.22. Such amount shall be reduced by amounts attributablethereto which have been credited to the Accounts of Participants who have since received distributions from the Trust, except to the extent such amounts continue to be credited to such Participants’ Accounts at the time the amount is returnedto the Employer. Such amount shall also be reduced by the losses of the Trust attributable thereto, if and to the extent such losses exceed the gains and income attributable thereto, but shall not be increased by the gains and income of the Trustattributable thereto, if and to the extent such gains and income exceed the losses attributable thereto. To the extent such gains exceed losses, the gains shall be forfeited and applied as provided in Section 11.09. In no event shall the returnof a contribution hereunder cause the balance of the individual Account of any Participant to be reduced to less than the balance which would have been credited to the Account had the mistaken amount not been contributed.

Article 6. Limitations on Contributions.

6.01. Special Definitions. For purposes of this Article, the following definitions shall apply:

(a) “Aggregate limit” means the greater of (1) or (2) where (I) is the sum of (A) 125 percent of the greater of the average “deferral ratio” of the Active Participants who are Non-HighlyCompensated Employees for the “testing year” or the average “contribution percentage” of Active Participants who are Non-Highly Compensated Employees for the “testing year” beginning with or within the “testingyear” of the cash or deferred arrangement and (B) the lesser of 200 percent or two plus the lesser of such average “deferral ratio” or average “contribution percentage” and where (2) is the sum of (A) 125percent of the lesser of the average “deferral ratio” of the Active Participants who are Non-Highly Compensated Employees for the “testing year” or the average “contribution percentage” of the Active Participants whoare Non-Highly Compensated Employees for the “testing year” beginning with or within the “testing year” of the cash or deferred arrangement and (B) the lesser of 200 percent or two plus the greater of such average “deferralratio” or average “contribution percentage”.

(b) “Annual additions” mean the sum of the following amountsallocated to an Active Participant for a Limitation Year:

(1) all employer contributions allocated to an Active Participant’s accountunder qualified defined contribution plans maintained by the “415 employer”, including amounts applied to reduce employer contributions as provided under Section 11.09;

(2) all employee contributions allocated to an Active Participant’s account under a qualified defined contribution plan or a qualified definedbenefit plan maintained by the “415 employer” if separate accounts are maintained with respect to such Active Participant under the defined benefit plan;

 

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(3) all forfeitures allocated to an Active Participant’s account under a qualified definedcontribution plan maintained by the “415 employer”;

(4) all amounts allocated, after March 31, 1984, to an “individualmedical benefit account” which is part of a pension or annuity plan maintained by the “415 employer”;

(5) all amountsderived from contributions paid or accrued after December 31, 1985, in taxable years ending after such date, which are attributable to post-retirement medical benefits allocated to the separate account of a key employee, as defined in CodeSection 419A(d)(3), under a “welfare benefit fund” maintained by the “415 employer”; and

(6) all allocations to anActive Participant under a “simplified employee pension”

(c) “Contribution percentage” means the ratio(expressed as a percentage) of (1) the “contribution percentage amounts” allocated to an “eligible participant’s” accounts for the Plan Year to (2) the “eligible participant’s” “testingcompensation” for the Plan Year.

(d) “Contribution percentage amounts” mean:

(1) any Employee Contributions made by an “eligible participant” to the Plan prior to the Effective Date of this amendment and restatement;

(2) any Matching Employer Contributions, but excluding (A) Qualified Matching Employer Contributions that are taken into account insatisfying the “ADP” test described in Section 6.03 (except that such exclusion shall not apply for any Plan Year in which the “ADP” test described in Section 6.03 is deemed satisfied pursuant to Section 6.10) and(B) Matching Employer Contributions that are forfeited either to correct “excess aggregate contributions” or because the contributions to which they relate are “excess deferrals”, “excess contributions”, or“excess aggregate contributions”;

(3) at the election of the Employer, Qualified Nonelective Employer Contributions, excludingQualified Nonelective Employer Contributions that are taken into account in satisfying the “ADP” test described in Section 6.03; and

(4) at the election of the Employer, Deferral Contributions, excluding Deferral Contributions that are taken into account in satisfying the “ADP” test described in Section 6.03.

Notwithstanding the foregoing, for any Plan Year in which the “ADP” test described in Section 6.03 is deemed satisfiedpursuant to Section 6.10, “contribution percentage amounts” shall not include the following:

(5) any Deferral Contributions;and

(6) if the requirements described in Section 6.11 for deemed satisfaction of the “ACP” test with respect to MatchingEmployer Contributions are met, any Matching Employer Contributions; or if the requirements described in Section 6.11 for deemed satisfaction of the “ACP” test with respect to Matching Employer Contributions are not met, any MatchingEmployer Contributions made on behalf of an “eligible participant” for the Plan Year that do not exceed four percent of the eligible participant’s” Compensation for the Plan Year.

To be included in determining an “eligible participant’s” “contribution percentage” for a Plan Year,“contribution percentage amounts” (other than Employee Contributions made prior to the Effective Date of this amendment and restatement) must be allocated to the “eligible participant’s” Account as of a date within such

 

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Plan Year and made before the last day of the 12-month period immediately following the Plan Year to which the “contribution percentage amounts”relate. If an Employer has elected the prior year testing method described in Subsection l.06(a)(2) of the Adoption Agreement, “contribution percentage amounts” that are taken into account for purposes of determining the “contributionpercentages” of Non-Highly Compensated Employees for the prior year relate to such prior year. Therefore, such “contribution percentage amounts” must be made before the last day of the Plan Year being tested.

Effective for Plan Years beginning on or after January 1, 1999, if an Employer elects to change from the current year testing methoddescribed in Subsection l.06(a)(l) of the Adoption Agreement to the prior year testing method described in Subsection 1.06(a)(2) of the Adoption Agreement, the following shall not be considered “contribution percentage amounts” forpurposes of determining the “contribution percentages” of Non-Highly Compensated Employees for the prior year immediately preceding the Plan Year in which the change is effective:

(7) QualifiedMatching Employer Contributions that were taken into account in satisfying the “ADP” test described in Section 6.03 for such prior year;

(8) Qualified Nonelective Employer Contributions that were taken into account in satisfying the “ADP” test described in Section 6.03 or the “ ACP” test described in Section 6.06 for suchprior year; and

(9) all Deferral Contributions.

(e) “Deferral ratio” means the ratio (expressed as a percentage) of (1) the amount of “includable contributions” made on behalf of an Active Participant for the Plan Year to(2) the Active Participant’s “testing compensation” for such Plan Year. An Active Participant who does not receive “includable contributions” for a Plan Year shall have a “deferral ratio” of zero.

(f) “Defined benefit fraction” means a fraction, the numerator of which is the sum of the Active Participant’s annual benefits(adjusted to an actuarially equivalent straight life annuity if such benefit is expressed in a form other than a straight life annuity or qualified joint and survivor annuity) under all the defined benefit plans (whether or not terminated)maintained by the “415 employer”, each such annual benefit computed on the assumptions that the Active Participant shall remain in employment until the normal retirement age under each such plan (or the Active Participant’s currentage, if later) and that all other factors used to determine benefits under such plan shall remain constant for all future Limitation Years, and the denominator of which is the lesser of 125 percent of the dollar limitation determined for theLimitation Year under Code sections 415(b)(l)(A) and 415(d) or 140 percent of the Active Participant’s highest average Compensation for three consecutive calendar years of service during which the Active Participant was active in each suchplan, including any adjustments under Code Section 415(b). However, if the Active Participant was a participant as of the first day of the first Limitation Year beginning after December 31, 1986, in one or more defined benefit plansmaintained by the “415 employer” which were in existence on May 6, 1986 then the denominator of the “defined benefit fraction” shall not be less than 125 percent of the Active Participant’s total accrued benefit as ofthe close of the last Limitation Year beginning before January 1, 1987, disregarding any changes in the terms and conditions of such plans made after May 5, 1986, under all such defined benefit plans that met, individually and in theaggregate, the requirements of Code Section 415 for all Limitation Years beginning before January 1, 1987.

(g) “Definedcontribution fraction” means a fraction, the numerator of which is the sum of all “annual additions” credited to an Active Participant for the current Limitation Year and all prior Limitation Years and the denominator of which isthe sum of the “maximum permissible amounts” for the current Limitation Year and all prior Limitation Years during which the Participant was an Employee (regardless of whether the “415 employer” maintained a defined contributionplan in any such Limitation Year).

 

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If the Active Participant was a participant as of the first day of the first Limitation Year beginningafter December 31, 1986, in one or more defined contribution plans maintained by the “415 employer” which were in existence on May 6, 1986, then the numerator of the “defined contribution fraction” shall be adjusted ifthe sum of this fraction and the “defined benefit fraction” would otherwise exceed 1.0 under the terms of the Plan. Under the adjustment an amount equal to the product of (1) the excess of the sum of the fractions over 1.0 and(2) the denominator of this fraction shall be permanently subtracted from the numerator of this fraction. The adjustment is calculated using the fractions as they would be computed as of the end of the last Limitation Year beginning beforeJanuary 1, 1987, and disregarding any changes in the terms and conditions of the plans made after May 6, 1986, but using the Section 415 limitation applicable to the first Limitation Year beginning on or after January 1, 1987.

For purposes of determining the “defined contribution fraction”, the “annual additions” for Limitation Years beginningbefore January 1, 1987 shall not be recomputed to treat all employee contributions as “annual additions”.

(h) “Determinationyear” means (1) for purposes of determining income or loss with respect to “excess deferrals”, the calendar year in which the “excess deferrals” were made and (2) for purposes of determining income or loss withrespect to “excess contributions”, and “excess aggregate contributions”, the Plan Year in which such “excess contributions” or “excess aggregate contributions” were made.

(i) “Elective deferrals” mean all employer contributions, other than Deferral Contributions, made on behalf of a Participant pursuant to an election todefer under any qualified CODA as described in Code Section 401(k), any simplified employee pension cash or deferred arrangement as described in Code Section 402(h)(1)(B), any eligible deferred compensation plan under CodeSection 45”, any plan as described under Code Section 501(c)(18), and any employer contributions made on behalf of a Participant pursuant to a salary reduction agreement for the purchase of an annuity contract under Code Section403(b). “Elective deferrals” shall not include any deferrals properly distributed as excess “annual additions”.

(j) “Eligibleparticipant” means any Active Participant who was eligible to make Employee Contributions prior to the Effective Date of this amendment and restatement or who is eligible to make Deferral Contributions (if the Employer takes suchcontributions into account in calculating “contribution percentages”), or to receive a Matching Employer Contribution. Notwithstanding the foregoing, the term “eligible participant” shall not include any Active Participant who isincluded 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 one or more employers.

(k) “Excess aggregate contributions” with respect to any Plan Year mean the excess of:

(1) The aggregate “contribution percentage amounts” actually taken into account in computing the average “contribution percentages” of“eligible participants” who are Highly Compensated Employees for such Plan Year, over

(2) The maximum amount of“contribution percentage amounts” permitted to be made on behalf of Highly Compensated Employees under Section 6.06 (determined by reducing “contribution percentage amounts” made for the Plan Year on behalf of “eligibleparticipants” who are Highly Compensated Employees in order of their “contribution percentages” beginning with the highest of such “contribution percentages”).

“Excess aggregate contributions” shall be determined after first determining “excess deferrals” and then determining “excesscontributions”.

 

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(l) “Excess contributions” with respect to any Plan Year mean the excess of:

(1) The aggregate amount of “includable contributions” actually taken into account in computing the average “deferral percentage” ofActive Participants who are Highly Compensated Employees for such Plan Year, over

(2) The maximum amount of “includablecontributions” permitted to be made on behalf of Highly Compensated Employees under Section 6.03 (determined by reducing “includable contributions” made for the Plan Year on behalf of Active Participants who are HighlyCompensated Employees in order of their “deferral ratios”, beginning with the highest of such “deferral ratios”).

(m) “Excessdeferrals” mean those Deferral Contributions and/or “elective deferrals” that are includable in a Participant’s gross income under Code Section 402(g) to the extent such Participant’s Deferral Contributions and/or“elective deferrals” for a calendar year exceed the dollar limitation under such Code Section for such calendar year.

(n) “Excess 415amount” means the excess of an Active Participant’s “annual additions” for the Limitation Year over the “maximum permissible amount”.

(o) “415 employer” means the Employer and any other employers which constitute a controlled group of corporations (as defined in Code Section 414(b) as modified by Code Section 415(h)) orwhich constitute trades or businesses (whether or not incorporated) which are under common control (is defined in Code Section 414(c) as modified by Code Section 415(h)) or which constitute an affiliated service group (as defined in CodeSection 414(m)) and any other entity required to be aggregated with the Employer pursuant to regulations issued under Code Section 414(o).

(p)“Includable contributions” mean:

(1) any Deferral Contributions made on behalf of an Active Participant, including“excess deferrals” of Highly Compensated Employees, but excluding (a) “excess deferrals” of Non-Highly Compensated Employees that arise solely from Deferral Contributions made under the Plan or plans maintained by theEmployer or a Related Employer and (b) Deferral Contributions that are taken into account in satisfying the “ACP” test described in Section 6.06;

(2) at the election of the Employer, Qualified Nonelective Employer Contributions, excluding Qualified Nonelective Employer Contributions that are taken into account in satisfying the “ACP” test described inSection 6.06; and

(3) at the election of the Employer, Qualified Matching Employer Contributions; provided, however, that the Employermay not elect to treat Qualified Matching Employer Contributions as “includable contributions” for any Plan Year in which the “ADP” test described in Section 6.03 is deemed satisfied pursuant to Section 6.10.

To be included in determining an Active Participant’s “deferral ratio” for a Plan Year, “includablecontributions” must be allocated to the Participant’s Account as of a date within such Plan Year and madebefore the last day of the 12-month period immediately following the Plan Year to which the “includable contributions” relate. If an Employer has elected the prior year testing method described in Subsection 1.06(a)(2) of the AdoptionAgreement, “includable contributions” that are taken into account for purposes of determining the “deferral ratios” of Non-Highly Compensated Employees for the prior year relate to such prior year. Therefore, such“includable contributions” must be made before the last day of the Plan Year being tested.

 

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Effective for Plan Years beginning on or after January 1, 1999, if an Employer assets to change from thecurrent year testing method described in Subsection 1.06(a)(1) of the Adoption Agreement to the prior year testing method described in Subsection 1.06(a)(2) of the Adoption Agreement, the following shall not be considered “includablecontributions” for purposes of determining the “deferral ratios” of Non Highly Compensated Employees for the prior year immediately preceding the Plan Year in which the change is effective:

(4) Deferral Contributions that were taken into account in satisfying the “ACP” test described in Section 6.06 for such prior year;

(5) Qualified Nonelective Employer Contributions that were taken into account in satisfying the “ADP” test described inSection 6.03 or the “ACP” test described in Section 6.06 for such prior year; and

(6) all Qualified Matching EmployerContributions.

(q) “Individual medical benefit account” means an individual medical benefit account as defined in CodeSection 415(1)(2).

(r) “Maximum permissible amount” means for a Limitation Year with respect to any Active Participant the lesser of(1) $30 000 (adjusted as provided in Code Section 415(d)) or (2) 25 percent of the Active Participant’s Compensation for the Limitation Year. If a short Limitation Year is created because of and amendment changing the LimitationYear to a different 12-consecutive-month period, the dollar limitation specified in clause (1) above shall be adjusted by multiplying it by a fraction the numerator of which is the number of months in the short Limitation Year and thedenominator of which is 12.

The Compensation limitation specified in clause (2) above shall not apply to any contribution for medicalbenefits within the meaning of Code Section 401(h) or 419A(f)(2) after separation from service which is otherwise treated as an “annual addition” under Code Section 419A(d)(2) or 415(l)(1).

(s) “Simplified employee pension” means a simplified employee pension as defined in Code Section 408(k).

(t) “Testing compensation” means compensation as defined in Code Section 414(s). “Testing compensation” shall be based on the amountactually paid to a Participant during the “testing year” or at the option of the Employer, during that portion of the “testing year” during which the Participant is an Active Participant.

The annual “testing compensation” of each Active Participant taken into account in applying the “ADP” test described inSection 6.03 and the “ACP” test described in Section 6.06 for any “testing year” shall not exceed the annual compensation limit under Code Section 401(a)(17) as in effect on the first day of the “testingyear”. This limit shall be adjusted by the Secretary to reflect increases in the cost of living as provided in Code Section 401(a)(17)(B); provided however, that the dollar increase in effect on January 1 of any calendar year is effectivefor “testing years” beginning in such calendar year. If a Plan determines “testing compensation” over a period that contains fewer than 12 calendar months (a “short determination period”), than the Compensation limitfor such “short determination period” is equal to the Compensation limit for the calendar year in which the “short determination period” begins multiplied by the ratio obtained by dividing the number of full months in the shortdetermination period” by 12; provided, however, that such proration shall not apply if there is a “short determination period” because (1) the Employer elected in accordance with any rules and regulations issued by the Secretaryof the Treasury or his delegate to apply the “ADP” test described in Section 6.03 and/or the “ADP” test described in Section 6.06 based only on Compensation paid during the portion of the “testing year” duringwhich an individual was an Active Participant or (2) an Employee is covered under the Plan for fewer than 12 calendar months.

 

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(u) “Testing year” means

(1) if the Employer has elected the current year testing method in Subsection 1.06(a)(1) of the Adoption Agreement, the Plan Year being tested.

(2) if the Employer has elected the prior year testing method in Subsection 1.06(a)(2) of the Adoption Agreement the Plan Year immediately preceding thePlan Year being tested.

(v) “Welfare benefit fund” means a welfare benefit fund as defined in Code Section 419(e).

6.02. Code Section 402(g) Limit on Deferral Contributions. In no event shall the amount of Deferral Contributions made under the Plan for a calendaryear, when aggregated with the “elective deferrals” made under and other plan maintained by the Employer or a Related Employer, exceed the dollar limitation contained in Code Section 402(g) in effect at the beginning of such calendaryear.

A Participant may assign to the Plan any “excess deferrals” made during a calendar year by notifying the Administrator onor before March 15 following the calendar year in which the “excess deferrals” were made of the amount of the “excess deferrals” to be assigned to the Plan. A Participant is deemed to notify the Administrator of any“excess deferrals” that arise by taking into account only those Deferral Contributions made to the Plan and those “elective deferrals” made to any other plan maintained by the Employer or a Related Employer. Notwithstanding anyother provision of the Plan, “excess deferrals”, plus any income and minus any loss allocable thereto, as determined under Section 6.09, shall be distributed no later than April 15 to any Participant to whose Account “excessdeferrals” were so assigned for the preceding calendar year and who claims “excess deferrals” for such calendar year.

AnyMatching Employer Contributions attributable to “excess deferrals”, plus any income and minus any loss allocable thereto, as determined under Section 6.09, shall be forfeited and applied as provided in Section 11.09.

“Excess deferrals” shall be treated as “annual additions” under the Plan, unless such amounts are distributed no laterthan the first April 15 following the close of the calendar year in which the “excess deferrals” were made.

6 03. Additional Limit onDeferral Contributions (“ADP” Test). Notwithstanding any other provision of the Plan to the contrary, the Deferral Contributions made with respect to a Plan Year on behalf of Active Participants who are Highly Compensated Employeesfor such Plan Year may not result in an average “deferral ratio” for such Active Participants that exceeds the greater of:

(a)the average “deferral ratio” for the “testing year” of Active Participants who are Non-Highly Compensated Employees for the “testing year” multiplied by 1.25; or

(b) the average “deferral ratio” for the “testing year” of Active Participants who are Non-Highly Compensated Employees for the“testing year” multiplied by two, provided that the average “deferral ratio” for Active Participants who are Highly Compensated Employees for the Plan Year being tested does not exceed the average “deferral ratio” forParticipants who are Non-Highly Compensated Employees for the “testing year” by more than two percentage points.

For the firstPlan Year in which the Plan provides a cash or deferred arrangement, the average “deferral ratio” for Active Participants who are Non-Highly Compensated Employees used in determining the limits applicable under Subsections 6.03(a) and(b) shall be either three percent or the actual average “deferral ratio” for such Active Participants for such first Plan Year, as elected by the Employer in Section 1.06(b) of the Adoption Agreement.

 

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The deferral ratios of Active Participants who are included in a unit of Employees covered by anagreement which the Secretary of Labor finds to be a collective bargaining agreement shall be disaggregated from the “deferral ratios” of other Active Participants and the provisions of this Section 6.03 shall be applied separatelywith respect to each group.

The “deferral ratio” for any Active Participant who is a Highly Compensated Employee for the PlanYear being tested and who is eligible to have “includable contributions” allocated to his accounts under two or more cash or deferred arrangements described in Code Section 401(k) that are maintained by the Employer or a RelatedEmployer, shall be determined as if such “includable contributions” were made under a single arrangement. If a Highly Compensated Employee participates in two or more cash or deferred arrangements that have different plan years, all cashor deferred arrangements ending with or within the same calendar year shall be treated as a single arrangement. Notwithstanding the foregoing, certain plans shall be treated as separate if mandatorily disaggregated under regulations under CodeSection 401(k).

If this Plan satisfies the requirements of Code Section 401(k), 401(a)(4), or 410(b) only if aggregated with oneor more other plans, or if one or more other plans satisfy the requirements of such Code Sections only if aggregatedwith this Plan, then this Section 6.03 shall be applied by determining the “deferral ratios” of Employees as if all such plans were a single plan. Plans may be aggregated in order to satisfy Code Section 401(k) only if theyhave the same plan year.

The Employer shall maintain records sufficient to demonstrate satisfaction of the “ADP” test and theamount of Qualified Nonelective and/or Qualified Matching Employer Contributions used in such test.

6.04. Allocation and Distribution of“Excess Contributions”. Notwithstanding any other provision of this Plan, the “excess contributions” allocable to the Account of a Participant, plus any income and minus any loss allocable thereto, as determined underSection 6.09, shall be distributed to the Participant no later than the last day of the Plan Year immediately following the Plan Year in which the “excess contributions” were made. If such excess amounts are distributed more than2 1/2 months after the last day of the Plan Year in which the “excess contributions” were made, a tenpercent excise tax shall be imposed on the Employer maintaining the Plan with respect to such amounts.

The “excesscontributions” allocable to a Participant’s Account shall be determined by reducing the “includable contributions” made for the Plan Year on behalf of Active Participants who are Highly Compensated Employees in order of thedollar amount of such “includable contributions”, beginning with the highest such dollar amount.

“Excesscontributions” shall be treated as “annual additions”.

Any Matching Employer Contributions attributable to “excesscontributions”, plus any income and minus any loss allocable thereto, as determined under Section 6.09, shall be forfeited and applied as provided in Section 11.09.

6.05. Reductions in Deferral Contributions to Meet Code Requirements. If the Administrator anticipates that the Plan will not satisfy the “ADP” and/or “ACP” test for the year, theAdministrator may objectively reduce the rate of Deferral Contributions of Participants who are Highly Compensated Employees to an amount determined by the Administrator to be necessary to satisfy the “ADP” and/or “ACP” test.

6.06. Limit on Matching Employer Contributions (and Employee Contributions made prior to the Effective Date) (“ACP” Test). Theprovisions of this Section 6.06 shall not apply to Active Participants 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 representativesand one or more employers.

Notwithstanding any other provision of the Plan to the contrary, Matching Employer Contributions and EmployeeContributions (made prior to the Effective Date of this amendment and restatement) made with respect to

 

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a Plan Year by or on behalf of “eligible participants” who are Highly Compensated Employees for such Plan Year may not result in an average“contribution percentage” for such “eligible participants” that exceeds the greater of:

(a) the average“contribution percentage” for the “testing year” of “eligible participants” who are Non-Highly Compensated Employees for the “testing year” multiplied by 1.25; or

(b) the average “contribution percentage” for the “testing year” of “eligible participants” who are Non-Highly CompensatedEmployees for the “testing year” multiplied by two, provided that the average “contribution percentage” for the Plan Year being tested of “eligible participants” who are Highly Compensated Employees does not exceed theaverage “contribution percentage” for the “testing year” of “eligible participants” who are Non-Highly Compensated Employees for the “testing year” by more than two percentage points.

For the first Plan Year in which the Plan provides for “contribution percentage amounts” to be made, the “ACP” for “eligibleparticipants” who are Non-Highly Compensated Employees used in determining the limits applicable under paragraphs (a) and (b) of this Section 6.06 shall be either three percent or the actual “ACP” of such eligibleparticipants for such first Plan Year, as elected by the Employer in Section 1.06(b).

The “contribution percentage” for any“eligible participant” who is a Highly Compensated Employee for the Plan Year and who is eligible to have “contribution percentage amounts” allocated to his accounts under two or more plans described in CodeSection 401(a) that are maintained by the Employer or a Related Employer, shall be determined as if such “contribution percentage amounts” were contributed under a single plan. If a Highly Compensated Employee participates in twoor more such plans that have different plan years, all plans ending with or within the same calendar year shall be treated as a single plan. Notwithstanding the foregoing, certain plans shall be treated as separate if mandatorily disaggregated underTreasury Regulations issued under Code Section 401(m).

If this Plan satisfies the requirements of Code Section 401(m), 401(a)(4)or 410(b) only if aggregated with one or more other plans, or if one or more other plans satisfy the requirements of such Code Sections only if aggregated with this Plan, then this Section 6.06 shall be applied by determining the“contribution percentages” of Employees as if all such plans were a single plan. Plans may be aggregated in order to satisfy Code Section 401(m) only if they have the same plan year.

The Employer shall maintain records sufficient to demonstrate satisfaction of the “ACP” test and the amount of Deferral Contributions,Qualified Nonelective Employer Contributions, and/or Qualified Matching Employer Contributions used in such test.

6.07. Allocation, Distribution,and Forfeiture of “Excess Aggregate Contributions”. Notwithstanding any other provision of the Plan, the “excess aggregate contributions” allocable to the Account of a Participant, plus any income and minus anyloss allocable thereto, as determined under Section 6.09, shall be forfeited, if forfeitable, or if not forfeitable, distributed to the Participant no later than the last day of the Plan Year immediately following the Plan Year in which the“excess aggregate contributions” were made. If such excess amounts are distributed more than 2 1/2months after the last day of the Plan Year in which such “excess aggregate contributions” were made, a ten percent excise tax shall be imposed on the Employer maintaining the Plan with respect to such amounts.

The “excess aggregate contributions” allocable to a Participant’s Account shall be determined by reducing the “contributionpercentage amounts” made for the Plan Year on behalf of “eligible participants” who are Highly Compensated Employees in order of the dollar amount of such “contribution percentage amounts”, beginning with the highest suchdollar amount.

“Excess aggregate contributions” shall be treated as “annual additions”.

 

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“Excess aggregate contributions” shall be forfeited or distributed from a Participant’sEmployee Contributions Account, Matching Employer Contributions Account and if applicable, the Participant’s Deferral Contributions Account and/or Qualified Nonelective Employer Contributions Account in the order prescribed by the Employer, whoshall direct the Trustee, and which order shall be uniform with respect to all Participants and non-discriminatory.

Forfeitures of“excess aggregate contributions” shall be applied as provided in Section 11.09.

6.08. Aggregate Limit on “ContributionPercentage Amounts” and “Includable Contributions”. The sum of the average “deferral ratio” and the average “contribution percentage” of those Active Participants who are Highly Compensated Employees duringthe Plan Year shall not exceed the “aggregate limit”. The average “deferral ratio” and average “contribution percentage” of such Active Participants shall be determined after any corrections required to meet the“ADP” test, described in Section 6.03, and the “ACP” test, described in Section 6.06, have been made. Notwithstanding the foregoing, the “aggregate limit” shall not be exceeded if either the average“deferral ratio” or the average “contribution percentage” of such Active Participants for the Plan Year does not exceed 1.25 multiplied by the average “deferral ratio” or the average “contribution percentage”,as applicable, for the “testing year” of the Active Participants who are Non-Highly Compensated Employees for the “testing year.”

If the “aggregate limit” would be exceeded for any Plan Year, then the limit shall be met by reducing the “contribution percentage amounts” contributed for the Plan Year on behalf of the ActiveParticipants who are Highly Compensated Employees for such Plan Year (in order of their “contribution percentages”, beginning with the highest such “contribution percentage”). “Contribution percentage amounts” that arereduced as provided herein shall be treated as “excess aggregate contributions”. If for any Plan Year in which the “ADP” test described in Section 6.03 is deemed satisfied pursuant to Section 6.10, the average “deferralratio” of these Active Participants who are Highly Compensated Employees during the Plan Year does not meet the “aggregate limit” after reducing the “contribution percentage amounts” contributed on behalf of such ActiveParticipants to zero, no further reduction shall be required under this Section 6.08.

6.09. Income or Loss on DistributableContributions. The income or loss allocable to “excess deferrals”, “excess contributions”, and “excess aggregate contributions” shall be determined under one of the following methods:

(a) the income or loss for the “determination year” allocable to the Participant’s Account to which such contributions were made multipliedby a fraction, the numerator of which is the amount of the distributable contributions and the denominator of which is the balance of the Participant’s Account to which such contributions were made, determined without regard to any income orloss occurring during the “determination year”; or

(b) the income or loss for the “determination year” determined underany other reasonable method, provided that such method is used consistently for all Participants in determining the income or loss allocable to distributable contributions hereunder for the Plan Year, and is used by the Plan in allocating income orloss to Participants’ Accounts.

Income or loss allocable to the period between the end of the “determination year” and the date ofdistribution shall be disregarded in determining income or loss.

6.10. Deemed Satisfaction of “ADP” Test. Notwithstanding anyother provision of this Article 6 to the contrary, for any Plan Year beginning on or after January 1, 1999, if the Employer has elected one of the safe harbor contributions in Subsection 1.10(a)(3) or 1.11(a)(3) of the Adoption Agreement andcomplies with the notice requirements described herein for such Plan Year, the Plan shall be deemed to have satisfied the “ADP” test described in Section 6.03. The Employer shall provide a notice to each Active Participant during thePlan Year describing the following:

 

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(a) the formula used for determining the amount of the safe harbor contribution to be made on behalf ofActive Participants for the Plan Year or a statement that the Plan may be amended during the Plan Year to provide for a safe harbor Nonelective Employer Contribution for the Plan Year equal to at least three percent of each Active Participant’sCompensation for the Plan Year;

(b) any other employer contributions provided under the Plan and any requirements that Active Participantsmust satisfy to be entitled to receive such employer contributions;

(c) the type and amount of Compensation that may be deferred under thePlan as Deferral Contributions;

(d) the procedures for making a cash or deferred election under the Plan and the periods during which suchelections may be made or changed; and

(e) the withdrawal and vesting provisions applicable to contributions under the Plan.

The descriptions required in (b) through (c) may be provided by cross references to the relevant sections of an up to date summary plandescription. Such notice shall be written in a manner calculated to be understood by the average Active Participant. The Employer shall provide the notice to each Active Participant within one of the following periods, whichever is applicable:

(f) if the employee is an Active Participant 90 days before the beginning of the Plan Year, within the period beginning 90 days and ending30 days before the first day of the Plan Year; or

(g) if the employee becomes an Active Participant after the date described in paragraph(  ) above, within the period beginning 90 days before and ending on the date he becomes an Active Participant;

provided, however, that suchnotice shall not be required to be provided to an Active Participant earlier than is required under any guidance published by the Internal Revenue Service.

If an Employer that provides notice that the Plan may be amended to provide a safe harbor Nonelective Employer Contribution for the Plan Year does amend the Plan to provide such contribution, the Employer shallprovide a supplemental notice to all Active Participants stating that a safe harbor Nonelective Employer Contribution in the specified amount shall be made for the Plan Year. Such supplemental notice shall be provided to Active Participants at least30 days before the last day of the Plan Year.

6.11. Deemed Satisfaction of “ACP” Test With Respect to Matching EmployerContributions. A Plan that satisfies the requirements of Section 6.10 shall also be deemed to have satisfied the “ACP” test described in Section 6.06 with respect to Matching Employer Contributions, if Matching EmployerContributions to the Plan for the Plan Year meet all of the following requirements: (a) the percentage of Deferral Contributions matched does not increase as the percentage of Compensation contributed increases; (b) Highly CompensatedEmployees are not provided a greater percentage match than Non-Highly Compensated Employees; (c) Deferral Contributions matched do not exceed six percent of a Participant’s Compensation; and (d) if the Employer elected in Subsection1.10(a)(2) or 1.10(b) of the Adoption Agreement to provide discretionary Matching Employer Contributions, the Employer also elected in Subsection 1.10(a)(2)(A) or 1.10(b)(1) of the Adoption Agreement, as applicable, to limit the dollar amount ofsuch discretionary Matching Employer Contributions allocated to a Participant for the Plan Year to no more than four percent of such Participant’s Compensation for the Plan Year.

 

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6.12. Code Section 415 Limitations. Notwithstanding any other provisions of the Plan, the followinglimitations shall apply:

(a) Employer Maintains Single Plan: If the “415 employer” does not maintain any other qualifieddefined contribution plan or any “welfare benefit fund”, “individual medical benefit account”, or “simplified employee pension” in addition to the Plan, the provisions of this Subsection 6.12(a) shall apply.

(1) If a Participant does not participate in, and has never participated in any other qualified defined contribution plan, “welfare benefitfund”, “individual medical benefit account”, or “simplified employee pension” maintained by the “415 employer”, which provides an “annual addition”, the amount of “annual additions” to theParticipant’s Account for a Limitation Year shall not exceed the lesser of the “maximum permissible amount” or any other limitation contained in the Plan. If a contribution that would otherwise be contributed or allocated to theParticipant’s Account would cause the “annual additions” for the Limitation Year to exceed the “maximum permissible amount”, the amount contributed or allocated shall be reduced so that the “annual additions” forthe Limitation Year shall equal the “maximum permissible amount”.

(2) Prior to the determination of a Participant’s actualCompensation for a Limitation Year, the “maximum permissible amount” may be determined on the basis of a reasonable estimation of the Participant’s Compensation for such Limitation Year, uniformly determined for all Participantssimilarly situated. Any Employer contributions based on estimated annual Compensation shall be reduced by any “excess 415 amounts” carried over from prior Limitation Years.

(3) As soon as is administratively feasible after the end of the Limitation Year, the “maximum permissible amount” for such Limitation Yearshall be determined on the basis of the Participant’s actual Compensation for such Limitation Year.

(4) If there is an “excess415 amount” with respect to a Participant for a Limitation Year as a result of the estimation of the Participant’s Compensation for the Limitation Year, the allocation of forfeitures to the Participant’s Account, or a reasonable errorin determining the amount of Deferral Contributions that may be made on behalf of the Participant under the limits of this Section 6.12, such “excess 415 amount” shall be disposed of as follows:

(A) Any Employee Contributions shall be reduced to the extent necessary to reduce the “excess 415 amount”.

(B) If after application of Subsection 6.12(a)(4)(A) an “excess 415 amount” still exists, any Deferral Contributions that have not been matchedshall be reduced to the extent necessary to reduce the “excess 415 amount”.

(C) If after application of Subsection 6.12(a)(4)(B)an “excess 415 amount” still exists, any Deferral Contributions that have been matched and the Matching Employer Contributions attributable thereto shall be reduced to the extent necessary to reduce the “excess 415 amount”.

(D) If after the application of Subsection 6.12(a)(4)(C) an “excess 415 amount” still exists, any Nonelective EmployerContributions shall be reduced to the extent necessary to reduce the “excess 415 amount”.

(E) If after the application ofSubsection 6.12(a)(4)(D) an “excess 415 amount” still exists, any Qualified Nonelective Employer Contributions shall be reduced to the extent necessary to reduce the “excess 415 amount”.

Employee Contributions and Deferral Contributions that are reduced as provided above shall be returned to the Participant. Any incomeallocable to returned Employee Contributions or Deferral

 

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Contributions shall also be returned or shall be treated as additional “annual additions” for the Limitation Year in which the excess contributionsto which they are allocable were made.

If Matching Employer, Nonelective Employer, or Qualified Nonelective EmployerContributions to a Participant’s Account are reduced as an “excess 415 amount” as provided above, and the individual is still an Active Participant at the end of the Limitation Year, then such “excess 415 amount” shall bereapplied to reduce future Employer contributions under the Plan for the next Limitation Year (and for each succeeding Limitation Year, as necessary) for such Participant, so that in each such Limitation Year the sum of the actual Employercontributions made on behalf of such Participant plus the reapplied amount shall equal the amount of Employer contributions which would otherwise be made to such Participant’s Account. If the individual is not an Active Participant at the endof a Limitation Year, then such “excess 415 amount” shall be held unallocated in a suspense account. The suspense account shall be applied to reduce future Employer contributions for all remaining Active Participants in the next LimitationYear and each succeeding Limitation Year if necessary.

If a suspense account is in existence at any time during theLimitation Year pursuant to this Subsection 6.12(a)(4), it shall participate in the allocation of the Trust Fund’s investment gains and losses. All amounts in the suspense account must be allocated to the Accounts of Active Participants beforeany Employer contribution may be made for the Limitation Year.

Except as otherwise specifically provided in this Subsection6.12 “excess 415 amounts” may not be distributed to Participants.

(b) Employer Maintains Multiple Defined Contribution TypePlans: Unless the Employer specifies another method for limiting “annual additions” in the 415 Correction Addendum to the Adoption Agreement, if the “415 employer” maintains any other qualified defined contribution plan orany “welfare benefit fund”, “individual medical benefit account”, or “simplified employee pension” in addition to the Plan, the provisions of this Subsection 6.12(b) shall apply.

(1) If a Participant is covered under any other qualified defined contribution plan or any “welfare benefit fund”, “individual medicalbenefit account”, or “simplified employee pension” maintained by the “415 employer”, that provides an “annual addition”, the amount of “annual additions” to the Participant’s Account for a LimitationYear shall not exceed the lesser of

(A) the “maximum permissible amount”, reduced by the sum of any “annual additions”to the Participant’s accounts for the same Limitation Year under such other qualified defined contribution plans and “welfare benefit funds”, “individual medical benefit accounts”, and “simplified employeepensions”, or

(B) any other limitation contained in the Plan.

If the “annual additions” with respect to a Participant under other qualified defined contribution plans, “welfare benefitfunds”, “individual medical benefit accounts”, and “simplified employee pensions” maintained by the “415 employer” are less than the “maximum permissible amount” and a contribution that would otherwise becontributed or allocated to the Participant’s Account under the Plan would cause the “annual additions” for the Limitation Year to exceed the “maximum permissible amount”, the amount to be contributed or allocated shall bereduced so that the “annual additions” for the Limitation Year shall equal the “maximum permissible amount”. If the “annual additions” with respect to the Participant under such other qualified defined contributionplans, “welfare benefit funds”, “individual medical benefit accounts”, and “simplified employee pensions” in the aggregate an equal to or greater

 

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than the “maximum permissible amount”, no amount shall be contributed or allocated to the Participant’s Account under the Plan for theLimitation Year.

(2) Prior to the determination of a Participant’s actual Compensation for the Limitation Year, the amounts referredto in Subsection 6.12(b)(1)(A) above may be determined on the basis of a reasonable estimation of the Participant’s Compensation for such Limitation Year, uniformly determined for all Participants similarly situated. Any Employer contributionbased on estimated annual Compensation shall be reduced by any “excess 415 amounts” carried over from prior Limitation Years.

(3)As soon as is administratively feasible after the end of the Limitation Year, the amounts referred to in Subsection 6.12(b)(1)(A) shall be determined on the basis of the Participant’s actual Compensation for such Limitation Year.

(4) Notwithstanding the provisions of any other plan maintained by a “415 employer”, if there is an “excess 415 amount” with respectto a Participant for a Limitation Year as a result of estimation of the Participant’s Compensation for the Limitation Year, the allocation of forfeitures to the Participant’s account under any qualified defined contribution plan maintainedby the “415 employer”, or a reasonable error in determining the amount of Deferral Contributions that may be made on behalf of the Participant to the Plan or any other qualified defined contribution plan maintained by the “415employer” under the limits of this Subsection 6.12(b), such “excess 415 amount” shall be deemed to consist first of the “annual additions” allocated to this Plan and shall be reduced as provided in Subsection 6.12(a)(4).

(c) Employer Maintains or Maintained Defined Benefit Plan: For Limitation Years beginning prior to January 1, 2000, if the “415employer” maintains, or at any time maintained, a qualified defined benefit plan, the sum of any Participant’s “defined benefit plan fraction” and “defined contribution plan fraction” shall not exceed the combined planlimitation of 1.00 in any such Limitation Year. The combined plan limitation shall be met by reducing “annual additions” under the Plan, unless otherwise provided in the qualified defined benefit plan.

(d) Adjustment to Compensation: Compensation for purposes of this Section 6.12 shall include amounts that are not includable in the grossincome of the Participant under a salary reduction agreement by reason of the application of Code Section 125, 132(f)(4), 402(e)(3), 402(h), or 403(b).

Article 7. Participants’ Accounts.

7.01. Individual Accounts. The Administrator shall establish andmaintain an Account foe each Participant that shall reflect Employer and Employee contributions made on behalf of the Participant and earnings, expenses, gains and losses attributable thereto, and investments made with amounts in theParticipant’s Account. The Administrator shall establish and maintain such other accounts and records as it decides in its discretion to be reasonably required or appropriate in order to discharge its duties under the Plan. The Administratorshall notify the Trustee of all Accounts established and maintained under the Plan.

7.02. Valuation of Accounts. Participant Accountsshall be valued at their fair market value at least annually as of a date specified by the Administrator in accordance with a method consistently followed and uniformly applied, and on such date earnings, expenses, gains and losses on investmentsmade with amounts in each Participant’s Account shall be allocated to such Account. Participants shall be furnished statements of their Account values at least once each Plan Year.

 

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Article 8. Investment of Contributions.

8.01. Manner of Investment. All contributions made to the Accounts of Participants shall be held for investment by the Trustee. Except as otherwise specifically provided in Section 20.10, theAccounts of Participants shall be invested and reinvested only in Permissible Investments selected by the Employer and designated in the Service Agreement.

8.02. Investment Decisions. Investments shall be directed by each Participant. Pursuant to Section 20.04, the Trustee shall have no discretion or authority with respect to the investment of the Trust Fund.

(a) Each Participant shall direct the investment of his Account among the Permissible Investments designated in the Service Agreement. The Participantshall file initial investment instructions with the Administrator, on such form as the Administrator may provide, selecting the Permissible Investments in which amounts credited to his Account shall be invested.

(1) Except as provided in this Section 8.02, only authorized Plan contacts and the Participant shall have access to a Participant’s Account.While any balance remains in the Account of a Participant after his death, the Beneficiary of the Participant shall make decisions as to the investment of the Account as though the Beneficiary were the Participant. To the extent required by aqualified domestic relations order as defined in Code Section 414(p), an alternate payee shall make investment decisions with respect to any segregated account established in the name of the alternate payee as provided in Section 18.04.

(2) If the Trustee receives any contribution under the Plan as to which investment instructions have not been provided, the Trustee shallpromptly notify the Administrator and the Administrator shall take steps to elicit instructions from the Participant. The Trustee shall credit any such contribution to the Participant’s Account and such amount shall be invested in the mostconservative Permissible Investment designated in the Service Agreement, until investment instructions have been received by the Trustee.

The Plan is intended to constitute a plan described in ERISA Section 404(c) and regulations issued thereunder. The fiduciaries of the Plan shall be relieved of liability for any losses that are the direct andnecessary result of investment instructions given by the Participant, his Beneficiary, or an alternate payee under a qualified domestic relations order. The Employer shall not be relieved of fiduciary responsibility for the selection and monitoringof the Permissible Investments under the Plan.

(b) All dividends, interest, gains and distributions of any nature received in respect offund Shares shall be reinvested in additional shares of that Permissible Investment.

(c) Expenses attributable to the acquisition ofinvestments shall be charged to the Account of the Participant for which such investment is made.

8.03. Participant Directions to Trustee.The method and frequency for change of investments shall be determined under (a) the rules applicable to the Permissible Investments selected by the Employer and designated in the Service Agreement and (b) any additional rules of the Employerlimiting the frequency of investment changes, which are included in a separate written administrative procedure adopted by the Employer and accepted by the Trustee. The Trustee shall have no duty to inquire into the investment decisions of aParticipant or to advise him regarding the purchase, retention, or sale of assets credited to his Account.

 

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Article 9. Participant Loans.

9.01 Special Definitions. For purposes of this Article, the following special definitions shall apply the Participant’s tax basis in his Account, but shall not be treated as Employee Contributionsfor any other purpose under the Plan, including application of the “ACP” test described in Section 6.06 and application of the Code Section 415 limitations described in Section 6.12.

The provisions of this Section 9.12 regarding treatment of loans that are deemed distributed shall be effective as of:

(a) the Effective Date, if the Plan is a new plan or is an amendment and restatement of a plan that administered loans in accordance with the provisionsof Q & A 19 and 20 of Section _.72(p)-1 of the Proposed Treasury Regulations immediately prior to the Effective Date or

(b) as of theJanuary 1 coinciding with or immediately following the Effective Date, in any other case.

Any loan that was deemed distributed prior to the date theprovisions of this Section 9.12 are effective shall be administered in accordance with the provisions of this Section 9.12 to the extent such administration is consistent with the transition rules in Q & A 21(c)(2)ofSection 1.72(p)-1 of the Proposed Treasury Regulations.

9.13. Determination of Account Value Upon Distribution Where Plan Loan isOutstanding. Notwithstanding any other provision of the Plan, the portion of a “participant’s” vested interest in his Account that is held by the Plan as security for a loan outstanding to the “participant” inaccordance with the provisions of this Article shall reduce the amount of the Account payable at the time of death or distribution, but only if the reduction is used as repayment of the loan. If less than 100 percent of a“participant’s” vested interest in his Account (determined without regard to the preceding sentence) is payable to the “participant’s” surviving spouse or other Beneficiary, then the Account shall be adjusted by firstreducing the “participant’s” vested interest in his Account by the amount of the security used as repayment of the loan, and then determining the benefit payable to the surviving spouse or other Beneficiary.

Article 10. In-Service Withdrawals.

10.1.Availability of In-Service Withdrawals. Except as otherwise permitted under Sect on 11.02 with respect to Participants who continue in employment past Normal Retirement Age, or as required under Section 12.04 with respect toParticipants who continue in employment past their Required Beginning Date, a Participant shall not be permitted to make a withdrawal from his Account under the Plan prior to retirement or termination of employment with the Employer and all RelatedEmployers, if any, except as provided in this Article.

10.2. Withdrawal of Employee Contributions. A Participant may elect to withdraw, incash, up to 100 percent of the amount then credited to his Employee Contributions Account. Such withdrawals may be made at any time.

10.3.Withdrawal of Rollover Contributions. A Participant may elect to withdraw, in cash, up to 100 percent of the amount then credited to his Rollover Contributions Account. Such withdrawals may be made at any time.

10.4. Age 59 1/2Withdrawals. If so provided by the Employer in Subsection 1.18(b), a Participant who continues in employment as anEmployee and who has attained the age of 59 1/2 is permitted to withdraw upon request all or any portion of theAccounts specified by the Employer in Subsection 1.18(b).

10.5. Hardship Withdrawals. If so provided by the Employer inSubsection 1.18(a) of the Adoption Agreement, a Participant who continues in employment as an Employee may apply to the Administrator for a hardship withdrawal of all or any portion of his Deferral Contributions Account (excluding any earningsthereon accrued after the later of December 31, 1988 or the last day of the last Plan Year ending before July 1, 1989). The minimum amount that a Participant may withdraw because of hardship is $500.

 

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For purposes of this Section 10.05, a withdrawal is made on account of hardship if made on accountof an immediate and heavy financial need of the Participant where such Participant lacks other available resources. Determinations with respect to hardship shall be made by the Administrator and shall be conclusive for purposes of the Plan, andshall be based on the following special rules:

(a) The following are the only financial needs considered immediate and heavy:

(1) expenses incurred or necessary for medical care (within the meaning of Code Section 21.3(d)) of the Participant, the Participant’sspouse, children, or dependents;

(2) the purchase (excluding mortgage payments) of a principal residence for the Participant;

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

(4) the need to prevent the eviction of the Participant from, or a foreclosure on themortgage of, the Participant’s principal residence; or

(5) any other financial need determined to be immediate and heavy under rulesand regulations issued by the Secretary of the Treasury or his delegate.

(b) A distribution shall be considered as necessary tosatisfy an immediate and heavy financial need of the Participant only if:

(1) The Participant has obtained all distributions, other thanthe hardship withdrawal, and all nontaxable (at the time of the loan) loans currently available under all plans maintained by the Employer or any Related Employer;

(2) The Participant suspends Deferral Contributions to the Plan for the 12-month period following the date of his hardship withdrawal. The suspension must also apply to all elective contributions and employeecontributions to all other qualified plans and non-qualified plans maintained by the Employer or any Related Employer, other than any mandatory employee contribution portion of a defined benefit plan, including stock option, stock purchase, andother similar plans, but not including health and welfare benefit plans (other than the cash or deferred arrangement portion of a cafeteria plan).

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

(4) The Participant agrees to limit Deferral Contributions (and “elective deferrals”, as defined in Subsection6.01(i)) to the Plan and any other qualified plan maintained by the Employer or a Related Employer for the calendar year immediately following the calendar year in which the Participant received the hardship withdrawal to the applicable limit underCode Section 402(g) for such calendar year less the amount of the Participant’s Deferral Contributions (and “elective deferrals”) for the calendar year in which the Participant received the hardship withdrawal.

10.06. Preservation of Prior Plan In-Service Withdrawal Rules. As indicated by the Employer in Subsection 1.18(d) of the Adoption Agreement, to the extentrequired under Code Section 411(d)(6), in-service withdrawals that were available under a prior plan shall be available under the Plan. The following provisions shall apply to preserve prior in-service withdrawal provisions.

 

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(a) If the Plan is an amendment and restatement of a prior plan or is a transferee plan of a prior planthat provided for in-service withdrawals from a Participant’s Matching Employer and/or Nonelective Employer Contributions Accounts of amounts that have been held in such Accounts for a specified period of time, a Participant shall be entitledto withdraw at any time prior to his termination of employment, any vested amounts held in such Accounts for the period of time specified by the Employer in Subsection 1.18(d)(1)(A) of the Adoption Agreement.

(b) If the Plan is an amendment and restatement of a prior plan or is a transferee plan of a prior plan that provided for in-service withdrawals from aParticipant’s Matching Employer and/or Nonelective Employer Contributions Accounts by Participants with at least 60 months of participation, a Participant with at least 60 months of participation shall be entitled to withdraw at any time priorto his termination of employment, any vested amounts held in such Accounts.

(e) If the Plan is an amendment and restatement of a prior planor is a transferee plan of a prior plan that provided for in-service withdrawals from a Participant’s Matching Employer and/or Nonelective Employer Contributions Accounts under any other circumstances, a Participant who has met any applicablerequirements, as set forth in the Protected In-Service Withdrawals Addendum to the Adoption Agreement, shall be entitled to withdraw at any time prior to his termination of employment any vested amounts held in such Accounts.

10.07. Restrictions on In-Service Withdrawals. The following restrictions apply to any in-service withdrawal made from a Participant’s Accountunder this Article:

(a) If the provisions of Section 14.04 apply to a Participant’s Account, the Participant must obtain theconsent of his spouse, if any, to obtain an in-service withdrawal.

(b) In-service withdrawals shall be made in a lump sum payment, exceptthat if the provisions of Section 14.04 apply to a Participant’s Account, the Participant may receive the in-service withdrawal in the form of a “qualified joint and survivor annuity”, as defined in Subsection 14.01(a).

(c) Notwithstanding any other provision of the Plan to the contrary other than the provisions of Section 11.02, a Participant shallnot be permitted to make an in-service withdrawal from his Account of a mounts attributable to contributions made to a money purchase pension plan, except employee and/or rollover contributions that were held in a separate account(s) under suchplan.

10.08. Distribution of Withdrawal Amounts. The Employer shall confirm the order in which the Permissible Investments shall beliquidated in order that the withdrawal amount can be distributed.

Article 11. Right to Benefits.

11.01. Normal or Early Retirement. Each Participant who continues in employment as En Employee until his Normal Retirement Age or, if so provided bythe Employer in Subsection 1.13(b) of the Adoption Agreement. Early Retirement Age, shall have a vested interest in his Account of 100 percent regardless of any vesting schedule elected in Section 1.15 of the Adoption Agreement. If aParticipant retires upon the attainment of Normal or Early Retirement Age, such retirement is referred to as a normal retirement.

11.02. LateRetirement. If a Participant continues in employment as an Employee after his Normal Retirement Age, he shall continue to have a 100 percent vested interest in his Account and shall continue to participate in the Plan until the datehe establishes with the Employer for his late retirement. Until he retires he has a continuing election to receive all or any portion of his Account.

 

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11.03. Disability Retirement. If so provided by the Employer in Subsection 1.13(c) of the AdoptionAgreement, a Participant who becomes disabled while employed as an Employee shall have a 100 percent vested interest in his Account regardless of any vesting schedule elected in Section 1.15 of the Adoption Agreement. An Employee is considereddisabled if he satisfies any of the requirements for disability retirement selected by the Employer in Section 1.14 of the Adoption Agreement and terminates his employment with the Employer. Such termination of employment is referred to as adisability retirement. Determinations with respect to disability shall be made by the Administrator.

11.04. Death. If a Participantwho is employed as an Employee dies, his Account shall become 100 percent vested and his designated Beneficiary shall be entitled to receive the balance of his Account, plus any amounts thereafter credited to his Account. If a Participant whoseemployment as an Employee has terminated dies, his designated Beneficiary shall be entitled to receive the Participant’s vested interest in his Account.

A copy of the death notice or other sufficient documentation must be filed with and approved by the Administrator. If upon the death of the Participant there is, in the opinion of the Administrator, no designatedBeneficiary for part or all of the Participant’s Account, such amount shall be paid to his surviving spouse or, if none, to his estate (such spouse or estate shall be deemed to be the Beneficiary for purposes of the Plan). If a Beneficiary diesafter benefits to such Beneficiary have commenced, but before they have been completed, and, in the opinion of the Administrator, no person has been designated to receive such remaining benefits, then such benefits shall be paid in a lump sum to thedeceased Beneficiary’s estate.

Subject to the requirements of Section 14.04, a Participant may designate a Beneficiary or changeany prior designation of Beneficiary by giving notice to the Administrator on a form designated by the Administrator. If more than one person is designated as the Beneficiary, their respective interests shall be as indicated on thedesignation form. In the case of a married Participant, the Participant’s spouse shall be deemed to be the designated Beneficiary unless the Participant’s spouse has consented to another designation in the manner described inSection 14.06.

11.05. Other Termination of Employment. If a Participant terminates his employment with the Employer and all RelatedEmployers, if any, for any reason other than death or normal, late, or disability retirement, he shall be entitled to a termination benefit equal to the sum of (a) his vested interest in the balance of his Matching Employer and/or NonelectiveEmployer Contributions Account(s), other than the balance attributable to safe harbor Matching Employer and/or sate harbor Nonelective Employer Contributions elected by the Employer in Subsection 1.10(a)(3) or 1.11(a)(3) of the Adoption Agreement,such vested interest to be determined in accordance with the vesting schedule(s) selected by the Employer in Section 1.15 of the Adoption Agreement, and (_) the balance of his Deferral Employee, Qualified Nonelective Employer, QualifiedMatching Employer, and Rollover Contributions Accounts, and the balance of his Matching Employer or Nonelective Employer Contributions Account that is attributable to safe harbor Matching Employer and/or safe harbor Nonelective EmployerContributions.

11.06. Application for Distribution. Unless a Participant’s Account is cashed out as provided in Section 13.02, aParticipant (or his Beneficiary, if the Participant has died) who is entitled to a distribution hereunder must make application, in a form acceptable to the Administrator, for a distribution from his Account. No distribution shall be made hereunderwithout proper application therefor, except as otherwise provided in Section 13.02.

11.07. Application of Vesting Schedule Following PartialDistribution. If a distribution from a Participant’s Matching Employer and/or Nonelective Employer Contributions Account has been made to him at a time when he is less than 100 percent vested in such Account balance, the vestingschedule(s) in Section 1.15 of the Adoption Agreement shall thereafter apply only to the balance of his Account attributable to Matching Employer and/or Nonelective Employer Contributions allocated after such distribution. The balance of theAccount from which such distribution was made shall be transferred to a separate account immediately following such distribution.

 

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At any relevant time prior to A forfeiture of any portion thereof under Section 11.08, aParticipant’s vested interest in such separate account shall be equal to P(AB + (RxD))-(RxD), where P is the Participant’s vested interest at the relevant time determined under Section 11.05; AB is the account balance of the separateaccount at the relevant time; D is the amount of the distribution; and R is the ratio of the account balance at the relevant time to the account balance after distribution. Following a forfeiture of any portion of such separate account under Section11.08 below, any balance in the Participant’s separate account shall remain 100 percent vested.

11 08. Forfeitures. If aParticipant terminates his employment with the Employer and all Related Employers before he is 100 percent vested in his Matching Employer and/or Nonelective Employer Contributions Accounts, the non-vested portion of his Account (including anyamounts credited after his termination of employment) shall be forfeited by him as follows:

(a) If the Inactive Participant elects toreceive distribution of his entire vested interest in his Account the non-vested portion of his Account shall be forfeited upon the complete distribution of such vested interest, subject to the possibility of reinstatement as provided inSection 11.10. For purposes of this Subsection, if the value of an Employee’s vested interest in his Account balance is zero, the Employee shall be deemed to have received a distribution of his vested interest immediately followingtermination of employment.

(b) If the Inactive Participant elects not to receive distribution of his vested interest in his Accountfollowing his termination of employment, the non-vested portion of his Account shall be forfeited after the Participant has incurred five consecutive Breaks in Vesting Service.

No forfeitures shall occur solely as a result of a Participant’s withdrawal of Employee Contributions.

11.09 Application of Forfeitures. Any forfeitures occurring during a Plan Year shall be applied to reduce the contributions of the Employer.Notwithstanding any other provision of the Plan to the contrary, forfeitures may first be used to pay administrative expenses under the Plan, as directed by the Employer. To the extent that forfeitures are not used to reduce administrative expensesunder the Plan, as directed by the Employer, forfeitures will be applied in accordance with this Section 11.09.

Pending application,forfeitures shall be held in the most conservative Permissible investment designated by the Employer in the Service Agreement.

Notwithstanding any other provision of the Plan to the contrary, in no event may forfeitures be used to reduce the Employer’s obligation to remit to the Trust (or other appropriate Plan funding vehicle) loan repayments made pursuant toArticle 9, Deferral Contributions or Employee Contributions.

11.10 Reinstatement of Forfeitures. If a Participant forfeits any portion ofhis Account under Subsection 11.08(a) because of distribution of his complete vested interest in his Account, but again becomes an Employee, then the amount so forfeited, without any adjustment for the earnings, expenses, losses or gains of theassets credited to his Account since the date forfeited, shall be recredited to his Account (or to a separate account as described in Section 11.07 if applicable) if he meets all of the following requirements.

(a) he again becomes an Employee before the date he incurs five-consecutive Breaks in Vesting Service following the date complete distribution of hisvested interest was made to him; and

(b) he repays to the Plan the amount previously distributed to him, without interest within five yearsof his Reemployment Date. If an Employee is deemed to have received distribution of his complete vested interest as provided in Section 11.08 the Employee shall be deemed to have repaid such distribution on his Reemployment Date.

 

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Upon such an actual or deemed repayment, the provisions of the Plan (including Section 11.07) shallthereafter apply as if no forfeiture had occurred. The amount to be recredited pursuant to this paragraph shall be derived first from the forfeitures, if any, which as of the date of recrediting have yet to be applied as provided inSection 11.09 and, to the extent such forfeitures are insufficient, from a special contribution to be made by the Employer.

11.11. Adjustmentfor Investment Experience. If any distribution under this Article 11 is not made in a single payment the amount retained by the Trustee after the distribution shall be subject to adjustment until distributed to reflect the income and gain orloss on the investments in which such amount is invested and any expenses properly charged under the Plan and Trust to such amounts.

Article 12.Distributions.

12.01. Restrictions on Distributions. A Participant, or his Beneficiary, may not receive adistribution from his Deferral Contributions, Qualified Nonelective Employer Contributions, Qualified Matching Employer Contributions, safe harbor Matching Employer Contributions or safe harbor Nonelective Employer Contributions Accounts earlierthan upon the Participant’s separation from service with the Employer and all Related Employers, death, or disability, except as otherwise provided in Article 10, Section 11.02 or Section 12.04. Notwithstanding the foregoing amountsmay also be distributed from such Accounts, in the form of a lump sum only upon

(a) Termination of the Plan without establishment ofanother defined contribution plan, other than an employee stock ownership plan (as defined in Code Section 4975(e) or 409) or a simplified employee pension plan as defined in Code Section 408(k).

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

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

12 02. Timing of Distribution Following Retirement or Termination of Employment. The balance of a Participant’s vested interest in his Account shall be distributable upon his termination ofemployment with the Employer and all Related Employers, if any, because of death, normal, early, or disability retirement (as permitted under the Plan), or other termination of employment. Notwithstanding the foregoing, a Participant whose vestedinterest in his Account exceeds $5,000 as determined under Section 13.02 (or such larger amount as may be specified in Code Section 417(e)(1)) may elect to postpone distribution of his Account until his Required Beginning Date. AParticipant who elects to postpone distribution has a continuing election to receive such distribution prior to the date as of which distribution is required, unless such Participant is reemployed as an Employee.

12.03. Participant Consent to Distribution. If a Participant’s vested interest in his Account exceeds $5,000 as determined under Section 13.02(or such larger amount as may be specified in Code Section 417(c)(1)), no distribution shall be made to the Participant before he reaches his Normal Retirement Age (or age 62 if later), unless the consent of the Participant has been obtained.Such consent shall be made within the 90-day period ending on the Participant’s Annuity Starting Date.

The consent of theParticipant’s spouse must also be obtained if the Participant’s Account is subject to the previsions of Section 14.04 unless the distribution shall be made in the form of a “qualified joint and survivor annuity” is definedin Section 14.01, A spouse’s consent to early distribution, if required, must satisfy the requirements of Section 14.06.

 

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Neither the consent of the Participation nor the Participant’s spouse shall be required to theextent that a distribution is required to satisfy Code Section 401(a)(9) or Code Section 415. In addition, upon termination of the Plan if it does not offer an annuity option (purchased from a commercial provider) and if the Employer or any RelatedEmployer does not maintain another defined contribution plan (other than an employee stock ownership plan as defined in Code Section 4975(c)(7)) the Participant’s Account shall, without the Participant’s consent, be distributed to theParticipant. However, if any Related Employer maintains another defined contribution plan (other than an employee stock ownership plan as defined in Code Section 4975(c)(7)) then the Participant’s Account shall be transferred, without theParticipant’s consent, to the other plan if the Participant does not consent to an immediate distribution.

12.04. Required Commencement ofDistribution to Participants. In no event shall distribution to a Participant commence later than the earlier of the dates described in (a) and (b) below.

(a) unless the Participant (and his spouse, if appropriate) elects otherwise, the 60th day after the close of the Plan Year in which occurs the latest of(i) the date on which the Participant attains Normal Retirement Age, or age 65, if earlier, (ii) the date on which the Participant’s employment with the Employer and all Related Employers ceases, or (iii) the 10th anniversary ofthe year in which the Participant commenced participation in the Plan; and

(b) the Participant’s Required Beginning Date.

Notwithstanding the provisions of Subsection 12.04(a) above, the failure of a Participant (and the Participant’s spouse, if applicable) toconsent to a distribution as required under Section 12.03, shall be deemed to be an election to defer commencement of payment as provided in Subsection 12.04(a) above.

12.05. Required Commencement of Distribution to Beneficiaries. If a Participant dies before his Annuity Starting Date the Participant’s Beneficiary shall receive distribution of theParticipant’s vested interest in his Account in the form provided under Article 13 or 14, as applicable, beginning as soon as reasonably practicable following the date the Beneficiary’s application for distribution is filed with the Administrator. Unless distribution is to be made over the life or over a period certain not greater than the lifeexpectancy of the Beneficiary, distribution of the Participant’s entire vested interest shall be made to the Beneficiary no later than the end of the fifth calendar year beginning after the Participant’s death. If distribution is to bemade over the life or over a period certain no greater than the life expectancy of the Beneficiary, distribution shall commence no later than.”

 

(a) If the Beneficiary is not the Participant’s spouse, the end of the first calendar year beginning after the Participant’s death; or

 

(b) If the Beneficiary is the Participant’s spouse, the later of (i) the end of the first calendar year beginning after the Participant’s death or (ii) the end ofthe calendar year in which the Participant would have attained age 70 1/2.

If distribution is to be made to a Participant’s spouse, it shall be made available within a reasonable period of time after the Participant’sdeath that is no less favorable than the period of time applicable to other distributions. In the event such spouse dies prior to the date distribution commences, he shall be treated for purposes of this Section 12.05 (other than Subsection12.05(b) above) as if he were the Participant. Any amount paid to a child of the Participant shall be treated as if it had been paid to the surviving spouse if the amount becomes payable to the surviving spouse when the child reaches the age ofmajority.

If the Participant has not designated a Beneficiary, or the Participant or Beneficiary has not effectively selected a method ofdistribution, distribution of the Participant’s benefit shall be completed by the close of the calendar year in which the fifth anniversary of the death of the Participant occurs.

 

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If a Participant dies on or after his Annuity Starting Date, but before his entire vested in crest in hisAccount is distributed, his Beneficiary shall receive distribution of the remainder of the Participant’s vested interest in his Account beginning as soon as reasonably practicable following the Participant’s date of death in a form thatprovides for distribution at least as rapidly as under the form in which the Participant was receiving distribution.

12.06. Whereabouts ofParticipants and Beneficiaries. The Administrator shall at all times be responsible for determining the whereabouts of each Participant or Beneficiary who may be entitled to benefits under the Plan and shall at all times be responsible forinstructing the Trustee in writing as to the current address of each such Participant or Beneficiary. The Trustee shall be entitled to rely on the latest written statement received from the Administrator as to such addresses. The Trustee shall beunder no duty to make any distributions under the Plan unless and until it has received written instructions from the Administrator satisfactory to the Trustee containing the name and address of the distributee, the time when the distribution is tooccur and the form which the distribution shall take.

Notwithstanding the foregoing, if the Trustee attempts to make a distribution inaccordance with the Administrator’s instructions but is unable to make such distribution because the whereabouts of the distributee is unknown, the Trustee shall notify the Administrator of such situation and thereafter the Trustee shall beunder no duty to make any further distributions to such distributee until it receives further written instructions from the Administrator.

If the Administrator is unable after diligent attempts to locate a Participant or Beneficiary who is entitled to a benefit under the Plan, the benefit otherwise payable to such Participant or Beneficiary shall be forfeited and applied asprovided in Section 11.09. If a benefit is forfeited because the Administrator determines that the Participant or Beneficiary cannot be found, such benefit shall be reinstated by the Employer if a claim is filed by the Participant orBeneficiary with the Administrator and the Administrator confirms the claim to the Employee. Notwithstanding the above, forfeiture of a Participant’s or Beneficiary’s benefit may occur only if a distribution could be made to theParticipant or Beneficiary without obtaining the Participant’s or Beneficiary consent in accordance with the requirements of Section 1.411(a)-11 of the Treasury Regulations.

Article 13. Form of Distribution.

13.01. Normal Form of Distribution. Unless aParticipant’s Account is subject to the requirements of Section 14.03 or 14.04, distributions to a Participant or to the Beneficiary of the Participant shall be made in a lump sum in cash or, if elected by the Participant (or theParticipant’s Beneficiary, if applicable) and provided by the Employer in Section 1.19 of the Adoption Agreement, under a systematic withdrawal plan (installments). A Participant (or the Participant’s Beneficiary, if applicable) whois receiving distributor under a systematic withdrawal plan may elect to accelerate installment payments or to receive a lump sum distribution of the remainder of his Account balance. Distribution may also be made hereunder in any non-annuity formthat is a protected benefit and is provided by the Employer in Section 1.19(d) of the Adoption Agreement.

Notwithstanding anythingherein to the contrary, if distribution to a Participant commences on the Participant’s Required Beginning Date as determined under Subsection 2.01(tt), the Participant may elect to receive distributions under a systematic withdrawal plan thatprovides the minimum distributions required under Code Section 40l (a)(9).

Distributions shall be made in cash, except thatdistributions may be made in Fund Shares of marketable securities (as defined in Code Section 731(c)(2)), at the election of the Participant, pursuant to the qualifying rollover of such distribution to a Fidelity Investments® individual retirement account.

13.02. Cash Out Of Small Accounts. Notwithstanding any other provision of the Plan to the contrary, if a Participant’s vested interest in his Accountis $5,000 (or such larger amount as may be specific in Code Section 417(c)(1)) or less, the Participant’s vested interest in his Account shall be distributed in a lump sum as soon

 

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as practicable following the Participant’s termination of employment because of retirement, liability, death or other termination of employment. Forpurposes of this Section, until final Treasury Regulations are issued to the contrary, if either (a) a Participant has commenced distribution of his Account under a systematic withdrawal plan or (b) his Account is subject to the provisions ofSection 14.04 and the Participant’s Annuity Starting Date has occurred with respect to amounts currently held in his Account, the Participant’s vested interest in his Account shall be deemed to exceed $5,000 (or such larger amount asmay be specified in Code Section 417(e)(1)) if the Participant’s vested interest in such amounts exceeded such dollar amount on the Participant’s Annuity Starting Date.

Notwithstanding the provisions of this Section 13.02, the Employer may determine net to cash out Participant Accounts in accordance with theforegoing provisions, provided that such determination is uniform with respect to all Participants and non-discriminatory.

13.03. MinimumDistributions. This Section applies to distributions under a systematic withdrawal plan that are made on or after a Participant’s Required Beginning Date or his date of death, if earlier. This Section shall be interpreted and applied inaccordance with the regulations under Code Section 401(a)(9), including the minimum distribution incidental benefit requirement of Section 1.401(a)(9)-2 of the Proposed Treasury Regulations, or any successor regulations of similar import.

Distribution must be made in substantially equal annual, or more frequent, installment, in cash, over a period certain which does notextend beyond the life expectancy or joint life expectancies of the Participant and his Beneficiary or, if the Participant dies prior to the commencement of distributions from his Account, the life expectancy of the Participant’s Beneficiary.The amount to be distributed for each calendar year for which a minimum distribution is required shall be at least an amount equal to the quotient obtained by dividing the Participant’s interest in his Account by the life expectancy of theParticipant or Beneficiary or the joint life and last survivor expectancy of the Participant and his Beneficiary, whichever is applicable. The amount to be distributed for each calendar year shall not be less than an amount equal to the quotientobtained by dividing the Participant’s interest in his Account by the lesser of (a) the applicable life expectancy, or (b) if a Participant’s Beneficiary is not his spouse, the applicable divisor determined under Section1.40l(a)(9)-2, Q&A 4 of the Proposed Treasury Regulations, or any successor regulations of similar import. Distributions after the death of the Participant shall be made using the applicable life expectancy under (a) above, without regard toSection 1.401(a)(9)-2 of such regulations. For purposes of this Section 13.03, life expectancy and joint life and last survivor expectancy shall be computed by use of the expected return multiples in Table V and VI of Section 1.72-9 of theTreasury Regulations.

For purposes of this Section 13.03, the life expectancy of a Participant or a Beneficiary who is theParticipant’s surviving spouse shall be recalculated annually unless the Participant or the Participant’s spouse irrevocably elects otherwise prior to the time distributions are required to begin. If not recalculated in accordance with theforegoing, lift expectancy shall be calculated using the attained age of the Participant or Beneficiary, whichever is applicable, as of such individual’s birth date in the first year for which a minimum distribution is required reduced by onefor each elapsed calendar year since the date life expectancy was first calculated.

If the Participant dies after distribution of hisbenefits has begun, distributions to the Participant’s Beneficiary shall be made at least as rapidly as under the method of distribution being used as of the date of the Participant’s death.

A Participant’s interest in his Account for purposes of this Section 13.03 shall be determined as of the last valuation date in the calendaryear immediately preceding the calendar year for which a minimum distribution is required, increased by the amount of any contributions allocated to, and decreased by any distributions from, such Account after the valuation date. Any distributionfor the first year for which a minimum distribution is required made after the close of such year shall be treated as if made prior to the close of such year.

 

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The Administrator shall notify the Trustee in writing whenever a distribution is necessary in order tocomply with the minimum distribution rules set forth in this Section 13.03.

13.04. Direct Rollovers. Notwithstanding any otherprovision of the Plan to the contrary, a “distributee” may elect, at the time and in the manner prescribed by the Administrator, to have any portion or all of an “eligible rollover distribution” paid directly to an “eligibleretirement plan” specified by the “distributee” in a direct rollover; provided, however, that this provision shall not apply if the total “eligible rollover distribution” that the “distributee” is reasonablyexpected to receive for the calendar year is less than $200 and that a “distributee” may not elect a direct rollover with respect to a portion of an “eligible rollover distribution” if such portion totals less than $500. Forpurposes of this Section 13.04, the following definitions shall apply:

(a) “Distributee” means a Participant, theParticipant’s surviving spouse, and the Participant’s spouse or former spouse who is the alternate payee under a qualified domestic relations order, who is entitled to receive a distribution from the Participant’s vested interest inhis Account.

(b) “Eligible retirement plan” means an individual retirement account described in Code Section 408(a), anindividual retirement annuity described in Code Section 408(b), an annuity plan described in Code Section 403(a), or a qualified trust described in Code Section 401(a), that accepts “eligible rollover distributions”.However, in the case of an “eligible rollover distribution” to a surviving spouse, an “eligible retirement plan” means an individual retirement account or individual retirement annuity.

(c) “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 the following:

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

(2) any distribution to the extentsuch distribution is required under Code Section 401(a)(9);

(3) 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);

(4) any hardshipwithdrawal of Deferral Contributions made in accordance with the provisions of Section 10.05.

13.05. Notice Regarding Timing and Form ofDistribution. Within the period beginning 90 days before a Participant’s Annuity Starting Date and ending 30 days before such date, the Administrator shall provide such Participant with written notice containing a general description ofthe material features and an explanation of the relative values of the forms of benefit available under the Plan and informing the Participant of his right to defer receipt of the distribution until his Required Beginning Date and his right to makea direct rollover.

Distribution may commence fewer than 30 days after such notice is given, provided that

(a) the Administrator clearly informs the Participant that the Participant has a right to a period of at least 30 days after receiving the notice toconsider the decision of whether or not to elect a distribution (and, if applicable, a particular distribution option);

(b) theParticipant, after receiving the notice, affirmatively elects a distribution, with his spouse’s written consent, if necessary;

 

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(c) if the Participant’s Account is subject to the requirements of Section 14.04, the followingadditional requirements apply:

(1) the Participant is permitted to revoke his affirmative distribution election at any time prior to thelater of (A) his Annuity Starting Date or (B) the expiration of the seven-day period beginning the day after such notice is provided to him; and

(2) distribution does not begin to such Participant until such revocation period ends.

13.06. Determination of Method ofDistribution. Subject to Section 13.02, the Participant shall determine the method of distribution of benefits to himself and may determine the method of distribution to his Beneficiary. Such determination shall be made prior to thetime benefits become payable under the Plan. If the Participant does not determine the method of distribution to his Beneficiary or if the Participant permits his Beneficiary to override his determination, the Beneficiary, in the event of theParticipant’s death, shall determine the method of distribution of benefits to himself as if he were the Participant. A determination by the Beneficiary must be made no later than the close of the calendar year in which distribution would berequired to begin under Section 12.05 or, if earlier, the close of the calendar year in which the fifth anniversary of the death of the Participant occurs.

13.07. Notice to Trustee. The Administrator shall notify the Trustee in any medium acceptable to the Trustee, which may be specified in the Service Agreement, whenever any Participant or Beneficiary is entitled to receivebenefits under the Plan. The Administrator’s notice shall indicate the form of payment of benefits that such Participant or Beneficiary shall receive, (in the case of distributions to a Participant) the name of any designated Beneficiary ofBeneficiaries, and such other information as the Trustee shall require.

Article 14. Superseding Annuity Distribution Provisions.

14.01. Special Definitions. For purposes of this Article, the following special definitions shall apply:

(a) “Qualified joint and survivor annuity” means (1) if the Participant is not married on his Annuity Starting Date, an immediateannuity payable for the life of the Participant or (2) if the Participant is married on his Annuity Starting Date, an immediate annuity for the life of the Participant with a survivor annuity for the life of the Participant’s spouse (towhom the Participant was married on the Annuity Starting Date) which is equal to at least 50 percent of the amount of the annuity which is payable during the joint lives of the Participant and such spouse, provided that the survivor annuity shallnot be payable to a Participant’s spouse if such spouse is not the same spouse to whom the Participant was married on his Annuity Starting Date.

(b) “Qualified preretirement survivor annuity” means an annuity purchased with at least 50 percent of a Participant’s vested interest in his Account that is payable for the life of aParticipant’s surviving spouse. The Employer shall specify that portion of a Participant’s vested interest in his Account that is to be used to purchase the “qualified preretirement survivor annuity” in Section 1.19 of theAdoption Agreement.

14.02. Applicability. The provisions of this Article shall apply to a Participant’s Account if:

(a) the Plan is an amendment and restatement of a plan that provided an annuity form of payment and such form of payment has not been eliminated pursuantto Subsection 1.19(c) and the Forms of Payment Addendum to the Adoption Agreement; or

(b) the Participant’s Account contains assetsattributable to amounts directly or indirectly transferred from a plan that provided an annuity form of payment and such form of payment has not been eliminated pursuant to Subsection 1.19(e) and the Forms of Payment Addendum to the AdoptionAgreement.

 

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14.03. Annuity Form of Payment. To the extent provided in Subsection 1.19 of the Adoption Agreement, aParticipant may elect distributions made in whole or in part in the form of an annuity contract. Any annuity contract distributed under the Plan shall be subject to the provisions of this Section 14.03 and, to the extent provided therein,Sections 14.04 through 14.09.

(a) At the direction of the Administrator, the Trustee shall purchase the annuity contract behalf of a Participant or Beneficiary from an insurance company. Such annuity contract shall be nontransferable.

(b) The terms of the annuity contract shall comply with the requirements of the Plan and distributions under such contract shall be made in accordancewith Code Section 401(a)(9) and the regulations thereunder.

(c) The annuity contract may provide for payment over the life of the Participant and, upon the death of the Participant, may provide a survivor annuitycontinuing for the life of the Participant’s designated Beneficiary. Such an annuity may provide for an annuity certain feature for a period not exceeding the life expectancy of the Participant or, if the annuity is payable to the Participantand a designated Beneficiary, the joint life and last survivor expectancy of the Participant and such Beneficiary. If the Participant dies prior to his Annuity Starting Date, the annuity contract distributed to the Participant’s Beneficiary mayprovide for payment over the life of the Beneficiary, and may provide for an annuity certain feature for a period not exceeding the life expectancy of the Beneficiary. The types of annuity contracts provided under the Plan shall be limited to thetypes of annuities described in Section 1.19 and the Forms of Payment Addendum to the Adoption Agreement.

(d) The annuity contractmust provide for nonincreasing payments.

14 .04. “Qualified Joint and Survivor Annuity” and “QualifiedPreretirement Survivor Annuity” Requirements. The requirements of this Section 14.04 apply to a Participant’s Account if:

(a) the Employer has selected distribution in the form of a life annuity as the normal form of distribution with respect to such Participant’s Account in Subsection 1.19(c)(2)(B) of the Adoption Agreement; or

(b) the Employer has specified distribution in the form of a life annuity as the normal form of distribution in Subsection (e)(2)(B)of the Forms of Payment Addendum to the Adoption Agreement and the Participant’s Annuity Starting Date occurs prior to the date specified in Subsection (c)(4) of the Forms of Payment Addendum to the Adoption Agreement; or

(c) the Participant is permitted to elect and has elected distribution in the form of an annuity contract payable over the life of the Participant.

If a Participant’s Account is subject to the requirements of this Section 14.04, distribution shall be made to the Participant in the form of a“qualified joint and survivor annuity” (with a survivor annuity in the percentage amount specified by the Employer in Subsection 1.19 of the Adoption Agreement), unless the Participant waives the “qualified joint and survivorannuity” as provided in Section 14.05. If the Participant dies prior to his Annuity Starting Date, distribution shall be made to the Participant’s surviving spouse, if any, in the form of a “qualified preretirement survivorannuity”, unless the Participant waives the “qualified preretirement survivor annuity” as provided in Section 14.05, or the Participant’s surviving spouse elects in writing to receive distribution in one of the other formsof payment provided under the Plan. If the Employer has specified in Section __19 of the Adoption Agreement that less than 100 percent of a Participant’s Account shall be used to purchase the “qualified preretirement survivorannuity”, distribution of the balance of the Participant’s vested interest, on his Account that is not used to purchase the qualified preretirement survivor annuity” shall be distributed to the Participants designated Beneficiary inaccordance with the provisions of Sections 11.04 and 12.05,

 

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14.05 Waiver of the “Qualified Joint and Survivor Annuity” and/or “Qualified Preretirement SurvivorAnnuity” Rights. A Participant may waive the “qualified joint and survivor annuity” described in Section 14.04 and elect another form of distribution permitted under the Plan at any time during the 90-day period ending onhis Annuity Starting Date; provided, however, that if the Participant is married, his spouse must consent in writing to such election as provided in Section 14.06. Spousal consent is not required if the Participant elects distribution in theform of a different “qualified joint and survivor annuity”.

A Participant may waive the “qualified preretirement survivorannuity” and designate a non-spouse Beneficiary at any time during the “applicable election period”; provided, however, that the Participant’s spouse must consent in writing to such election as provided in Section 14.06. The“applicable election period” begins on the later of (1) the date the Participant’s Account becomes subject to the requirements of Section 14.04 or (2 the first day of the Plan Year in which the Participant attains age 35 or,if he terminates employment prior to such date, the date he terminates employment with the Employer and all Related Employers. The “applicable election period” ends on the earlier of the Participant’s Annuity Starting Date or the dateof the Participant’s death. A Participant whose employment has not terminated may elect to waive the “qualified preretirement survivor annuity” prior to the Plan Year in which he attains age 35, provided that any such waiver shallcease to be effective is of the first day of the Plan Year in which the Participant attains age 35.

If the Employer has specified inSection 1.19 of the Adoption Agreement that less than 100 percent of a Participant’s Account shall be used to purchase the “qualified preretirement survivor annuity”, the Participant may designate a non-spouse Beneficiary for thebalance of the Participant’s vested interest in his Account that is not used to purchase the ‘qualified preretirement survivor annuity”. Such designation shall not be subject to the spousal consent requirements of Section 14.06.

14.06 Spouse’s Consent to Waiver. A spouse’s written consent to a Participant’s waiver of the “qualified joint andsurvivor annuity” or “qualified preretirement survivor annuity” forms of distribution must acknowledge the effect of the Participant’s election and must be witnessed by a Plan representative or a notary public. In addition, thespouse’s written consent must either (a) specify the form of distribution elected instead of the “qualified joint and survivor annuity”, if applicable, and that such form may not be changed (except to a “qualified joint andsurvivor annuity”) without written spousal consent and specify any non-spouse Beneficiary designated by the Participant, if applicable, and that such designation may not be changed without written spousal consent or (b) acknowledge thatthe spouse has the right to limit consent as provided in clause (a) above, but permit the Participant to change the form of distribution elected or the designated Beneficiary without the spouse’s further consent.

A Participant’s spouse shall be deemed to have given written consent to a Participant’s waiver if the Participant establishes to thesatisfaction of a Plan representative that spousal consent cannot be obtained because the spouse cannot be located or because of other circumstances set forth in Code Section 40l(a)(11) and Treasury Regulations issued thereunder.

Any written consent given or deemed to have been given by a Participant’s spouse hereunder shall be irrevocable and shall be effective only withrespect to such spouse and not with respect to any subsequent spouse.

A spouse’s consent to a Participant’s waiver shall bevalid only if the applicable notice described in Section 14.07 or 14.08 has been provided to the Participant.

14.07 Notice Regarding“Qualified Joint and Survivor Annuity”. The notice provided to a Participant under Section 14.05 shall include a written explanation of (a) the terms and conditions of the “qualified joint and survivor annuityprovided herein, (b) the Participant’s right to make, and the effect of an election to waive the “qualified joint and survivor annuity”, (c) the rights of the Participant’s spouse under Section 14.06, and (d) theParticipant’s right to revoke an election to waive the “qualified joint and survivor annuity” prior to his Annuity Starting Date.

 

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14.08. Notice Regarding “Qualified Preretirement Survivor Annuity”. If a Participant’sAccount is subject to the requirements of Section 14.04, the Administrator shall provide the Participant with a written explanation of the “qualified preretirement survivor annuity” comparable to the written explanation provided withrespect to the “qualified joint and survivor annuity”, as described in Section 14.07. Such explanation shall be furnished within whichever of the following periods ends last:

(a) the period beginning with the first day of the Plan Year in which the Participant reaches age 32 and ending with the end of the Plan Year precedingthe Plan Year in which he reaches age 35;

(b) a reasonable period ending after the Employee becomes an Active Participant;

(c) a reasonable period ending after Section 14.04 first becomes applicable to the Participant’s Account; or

(d) in the case of a Participant who separates from service before age 35, a reasonable period ending after such separation from service.

For purposes of the preceding sentence, the two-year period beginning one year prior to the date of the event described in Subsection14.08(b),(c) or (d) above, whichever is applicable, and ending one year after such date shall be considered reasonable, provided, that in the case of a Participant who separates from service under Subsection 14.08(d) above and subsequentlyrecommences employment with the Employer, the applicable period for such Participant shall be redetermined in accordance with this Section 14.08.

14.09. Former Spouse. For purposes of this Article, a former spouse of a Participant shall be treated as the spouse or surviving spouse of the Participant, and a current spouse shall not be so treated, to the extent requiredunder a qualified domestic relations order, as defined in Code Section 414(p).

Article 15. Top-Heavy Provisions.

15.01. Definitions. For purposes of this Article, the following special definitions shall apply:

(a) “Determination date” means, for any Plan Year subsequent to the first Plan Year the last day of the preceding Plan Year. For thefirst Plan Year of the Plan, “determination date” means the last day of that Plan Year.

(b) “Determinationperiod” means the Plan Year containing the “determination date” and the four preceding Plan Years.

(c) “Keyemployee” means any Employee or former Employee (and the Beneficiary of any such Employee) who at any time during the “determination period” was (1) an officer of the Employer or a Related Employer whose annual Compensationexceeds 50 percent of the dollar limitation under Code Section 415(b)(1)(A),(2) one of the ten Employees whose annual Compensation from the Employer or a Related Employer exceeds the dollar limitation under Code Section 415(c)(1)(A) and whoowns (or is considered as owning under Code Section 318) one of the largest interests in the Employer and all Related Employers, (3) a five percent owner of the Employer and all Related Employers, or (4) a one percent owner of the Employerand all Related Employers whose annual Compensation exceeds $150,000. The determination of who is a “key employee” shall be made in accordance with Code Section 416(i)(1) and regulations issued thereunder.

(d) “Permissive aggregation group” means the “required aggregation group” plus any other qualified plans of the Employer or aRelated Employer which, when considered as a group with the “required aggregation group”, would continue to satisfy the requirements of Code Sections 401(a)(4) and 410.

 

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(e) “Required aggregation group” means:

(1) Each qualified plan of the Employer or Related Employer in which at least one “key employee” participates or has participated at any timeduring the “determination period” (regardless of whether the plan has terminated), and

(2) any other qualified plan of theEmployer or Related Employer which enables a plan described in Subsection 15.01(e)(1) above to meet the requirements of Code Section 401(a)(_) or 410.

(f) “Top-heavy plan” means a plan in which any of the following conditions exist:

(1) the“top-heavy ratio” for the plan exceeds 60 percent and the Plan is not part of any “required aggregation group” or “permissive aggregation group”;

(2) the plan is a part of a “required aggregation group” but not part of a “permissive aggregation group” and the “top-heavyratio” for the “required aggregation group” exceeds 60 percent, or

(3) the plan is a part of a “required aggregationgroup” and a “permissive aggregation group” and the “top-heavy ratio” for both groups exceeds 60 percent.

(g)“Top-heavy ratio” means:

(1) With respect to the Plan, or with respect to any “required aggregation group” or“permissive aggregation group” that consists solely of defined contribution plans (including any simplified employee pension, as defined in Code Section 408(k)), a fraction, the numerator of which is the sum of the account balances ofall “key employees” under the plans as of the “determination date” (including any part of any account balance distributed during the five-year period ending on the “determination date”), and the denominator of which isthe sum of all account balances (including any part of any account balance distributed during the five-year period ending on the “determination date”) of all participants under the plans as of the “determination date”. Both thenumerator and denominator of the “top-heavy ratio” shall be increased, to the extent required by Code Section 416, to reflect any contribution which is due but unpaid as of the “determination date”.

(2) With respect to any “required aggregation group” or “permissive aggregation group” that includes one or more defined benefit planswhich, during the five-year period ending on the “determination date”, has covered or could cover an Active Participant in the Plan, a fraction, the numerator of which is the sum of the account balances under the defined contribution plansfor all “key employees” and the present value of accrued benefits under the defined benefit plans for all “key employees” and the denominator of which is the sum of the account balances under the defined contribution plans forall participants and the present value of accrued benefits under the defined benefit plans for all participants. Both the numerator and denominator of the “top-heavy ratio” shall be increased for any distribution of an account balance oran accrued benefit made during the five-year period ending on the “determination date” and any contribution due but unpaid as of the “determination date”.

For purposes of Subsections 15.01(g)(1) and (2) above, the value of accounts and the present value of accrued benefits shall bedetermined as of the most recent “determination date”, except as provided in Code Section 416 and the regulations issued thereunder for the first and second plan years of a defined benefit plan. When aggregating plans, the value ofaccounts and accrued benefits shall be calculated with reference to the “determination dates” that fall within the same calendar year. The present value of accrued benefits shall be determined using the interest rate and mortality tablespecified in Subsection __(b) of the Adoption Agreement.

 

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The accounts and accrued benefits of a Participant who is not a “key employee”but who was a “key employee” in a prior year, or who has not performed services for the Employer or any Related Employer at any time during the five-year period ending on the “determination date”, shall be disregarded. Thecalculation of the “top-heavy ratio”, and the extent to which distributions, rollovers, and transfers are taken into account, shall be made in accordance with Code Section 416 and the regulations issued thereunder Deductible employeecontributions shall not be taken into account for purposes of computing the “top-heavy ratio”.

For purposes ofdetermining if the Plan, or any other plan included in a “required aggregation group” of which the Plan is a part, is a “top-heavy plan”, the accrued benefit in a defined benefit plan of an Employee other than a “keyemployee” shall be determined under the method, if any, that uniform applies for accrual purposes under all plans maintained by the Employer or a Related Employer, or, if there is no such method, as if such benefit accrued not more rapidly thanthe slowest accrual rate permitted under the fractional accrual rate of Code Section 411(b)(1)(C).

15.02. Application. If thePlan is or becomes a “top-heavy plan” in any Plan Year or is automatically deemed to be a “top-heavy plan” in accordance with the Employer’s selection in Subsection 1.21(a)(1) of the Adoption Agreement, the provisions ofthis Article shall apply and shall supersede any conflicting provision in the Plan.

15.03. Minimum Contribution. Except as otherwisespecifically provided in this Section 15.03, the Nonelective Employer Contributions made for the Plan Year on behalf of any Active Participant who is not a “key employee” shall not be less than the lesser of three percent (or suchother percentage selected by the Employer in Subsection 1.21(e) of the Adoption Agreement) of such Participant’s Compensation for the Plan Year or, in the case where neither the Employer nor any Related Employer maintains a defined benefit planwhich uses the Plan to satisfy Code Section 401(a)(4) or 410, the largest percentage of Employer contributions made on behalf of any “key employee” for the Plan Year, expressed as a percentage of the “key employee’s”Compensation for the Plan Year, unless the Employer has provided in Subsection 1.21(c) of the Adoption Agreement that the minimum contribution requirement shall be met under the other plan or plans of the Employer.

The minimum contribution required under this Section 15.03 shall be made to the Account of an Active Participant even though, under other Planprovisions, the Active Participant would not otherwise be entitled to receive a contribution, or would have received a lesser contribution for the Plan Year, because (a) the Active Participant failed to complete the Hours of Service requirementselected by the Employer in subsection 1.10(d) or 1.11(c) of the Adoption Agreement, or (b) the Participant’s Compensation was less than a stated amount; provided, however, that no minimum contribution shall be made for a Plan Year to theAccount of an Active Participant who is not employed by the Employer or a Related Employer on the last day of the Plan Year.

The minimumcontribution for the Plan Year made on behalf of each Active Participant who is not a “key employee” and who is a participant in a defined benefit plan maintained by the Employer or a Related Employer shall not be less than five percent ofsuch Participant’s Compensation for the Plan Year, unless the Employer has provided in Subsection 1.21(c) of the Adoption Agreement that the minimum contribution requirement shall be met under the other plan or plans of the Employer.

That portion of a Participant’s Account that is attributable to minimum contributions required under this Section 15.03 to theextent required to be nonforfeitable under Code Section 416(b), may not be forfeited under Code Section 411(a)(3)(B).

Notwithstanding any other provision of the Plan to the contrary, for purposes of this Article, Compensation shall include amounts that are not includable in the gross income of the Participant under a salary reduction agreement by reason ofthe application of Code Section 125, 132(f)(4), 402(e)(3), 402(h), or 403(b). Compensation shall generally be based on the amount actually paid to the Eligible Employee during the Plan Year or during that

 

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portion of the Plan Year during which the Eligible Employee is an Active Participant, as created by the Employer in Subsection 1.05(c) of the AdoptionAgreement.

15.04. Modification of Allocation Provisions to Meet Minimum Contribution Requirements. If the Employer elected adiscretionary Nonelective Employer Contribution in Subsection 1.11(b) of the Adoption Agreement, the provisions for allocating Nonelective Employer Contributions described in Subsection 5.10(b) shall be modified as provided herein to meet theminimum contribution requirements of Section 15.03.

(a) If the Employer selected the non-integrated formula in Subsection 1.11(b)(1)of the Adoption Agreement. Nonelective Employer Contributions shall be allocated as follows:

(1) Nonelective Employer Contributions shallbe allocated to each eligible Active Participant, as determined under this Section 15.04, who is not a “key employee” in the same ratio that the eligible Active Participant’s Compensation for the Plan Year bears to the totalCompensation of all such eligible Active Participants for the Plan Year; provided, however that such ratio shall not exceed three percent of a Participants Compensation for the Plan Year (or such other percentage selected by the Employer inSubsection 1.21(c) of the Adoption Agreement).

(2) If any Nonelective Employer Contributions remain after the allocation in Subsection15.04(a)(1) above, the remaining Nonelective Employer Contributions shall be allocated to each eligible Active Participant, as determined under this Section 15.04 who is a “key employee” in the same ratio that the eligible ActiveParticipant’s Compensation for the Plan Year bears to the total Compensation of all such eligible Active Participants for the Plan Year; provided, however that such ratio shall not exceed three percent of a Participant’s Compensation forthe Plan Year (or such other percentage selected by the Employer in Subsection 1.21(c) of the Adoption Agreement).

(3) If anyNonelective Employer Contributions remain after the allocation in Subsection 15.04(a)(2) above, the remaining Nonelective Employer Contributions shall be allocated to each eligible Active Participant, as determined under this Section 15.04, inthe same ratio that the eligible Active Participant’s Compensation for the Plan Year bears to the total Compensation of all such eligible Active Participants for the Plan Year.

(b) If the Employer selected the integrated formula in Subsection 1.11(b)(2) of the Adoption Agreement the “permitted disparity limit” asdefined in Subsection 1.11(b)(2) of the Adoption Agreement, shall be reduced by the percentage allocated under Subsection 15.04(b)(1) or (2) below and the allocation steps in Subsection 5.10(b)(2) shall be preceded by the following steps:

(1) Nonelective Employer Contributions shall be allocated to each eligible Active Participant, as determined under this Section 15.04,who is not a “key employee” in the same ratio that the eligible Active Participant’s Compensation for the Plan Year bears to the total Compensation of all such eligible Active Participants for the Plan Year; provided, however thatsuch ratio shall no exceed three percent of a Participant’s Compensation for the Plan Year (or such other percentage selected by the Employer in Subsection 1.21(c) of the Adoption Agreement).

(2) If any Nonelective Employer Contributions remain after the allocation in Subsection 15.04(b)(1) above, the remaining Nonelective EmployerContributions shall be allocated to each eligible Active Participant, as determined under this Section 15.04, who is a “key employee” in the same ratio that the eligible Active Participant’s Compensation for the Plan Year bearsto the total Compensation of all such eligible Active Participants for the Plan Year; provided, however that such ratio shall not exceed three percent of a Participant’s Compensation for the Plan Year (or such other percentage selected by theEmployer in Subsection 1.21(c) of the Adoption Agreement).

 

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(3) If any Nonelective Employer Contributions remain after the allocation in Subsection 15.04(b)(2)above, the remaining Nonelective Employer Contributions shall be allocated to each eligible Active Participant in the same ratio that the eligible Active Participant’s Excess Compensation for the Plan Year bears to the total Excess Compensationof all eligible Participants for the Plan Year; provided, however, that such ratio shall not exceed three percent (or such other percentage selected by the Employer in Subsection 1.21(c) of the Adoption Agreement).

15.05. Adjustment to the Limitation on Contributions and Benefits. For Limitation Years beginning prior to January 1, 2000, if the Plan is a“top-heavy plan”, the number 100 shall be substituted for the number 125 in determining the “defined benefit fraction”, as defined in Subsection 6.01(f) and the “defined contribution fraction”, as defined inSubsection 6.01(g). However, this substitution shall not take effect with respect to the Plan in any Plan Year in which the following requirements are satisfied:

(a) The Employer contributions for such Plan Year made on behalf of each eligible active Participant, as determined under Section 15.03, who is not a “key employee” and who is a participant in a definedbenefit plan maintained by the Employer or a Related Employer is not less than 7 1/2 percent of such eligibleActive Participant’s Compensation.

(b) The “top-heavy ratio” for the Plan (or the “required aggregationgroup” or “permissible aggregation group”, as applicable) docs not exceed 90 percent.

The substitutions of the number 100for 125 shall not take effect in any Limitation Year with respect to any Participant for whom no benefits are accrued or contributions made for the Limitation Year.

15.06. Accelerated Vesting. For any Plan Year in which the Plan is or is deemed to be a “top-heavy plan” and all Plan Years thereafter, if the Employer has selected Subsection1.15(a)(1)(A) of the Adoption Agreement, the top-heavy vesting schedule selected by the Employer in Subsection 1.21(d) of the Adopt on Agreement shall automatically apply to the Plan. The top-heavy vesting schedule applies to all benefits within themeaning of Code Section 411(a)(7) except those already subject to a vesting schedule which vests at least as rapidly in all cases as the schedule elected in Subsection 1.21(d) of the Adoption Agreement, including benefits accrued before thePlan becomes a “top-heavy plan”. Notwithstanding the foregoing provisions of this Section 15.06, the top-heavy vesting schedule does not apply to the Account of any Participant who does not have an Hour of Service after the Planinitially becomes or is deemed to have become a “top-heavy plan” and such Employee’s Account attributable to Employer Contributions shall be determined without regard to this Section 15.06.

15.07. Exclusion of Collectively-Bargained Employees. Notwithstanding any other provision of this Article 15, Employees who are included in a unitcovered by an agreement which the Secretary of Labor finds to be a collective bargaining agreement between employee representatives and one or more employers shall not be included in determining whether or not the Plan is a “top-heavyplan”. In addition, such Employees shall not be entitled to a minimum contribution under Section 15.03 or accelerated vesting under Section 15.06, unless otherwise provided in the collective bargaining agreement.

Article 16. Amendment and Termination.

16.01.Amendments by the Employer that do Not Affect Prototype Status. The Employer reserves the authority through a board of directors’ resolution or similar action, subject to the provisions of Article 1 and Section 16.04, toamend the Plan as provided herein, and such amendment shall not affect the status of the Plan as a prototype plan.

(a) The Employer mayamend the Adoption Agreement to make a change or changes in the provisions previously elected by it. Such amendment may be made either by (1) completing an amended Adoption Agreement on which the Employer has indicated the change or changes, or(2) adopting an amendment.

 

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executed by the Employer only, in the form provided by the Prototype Sponsor, that provides replacement pages to be inserted into the Adoption Agreement,which pages include the change or changes. Any such amendment must be filed with the Trustee.

(b) The Employer may make a separateamendment to the Plan as necessary to satisfy Code Section 415 or 416 because of the required aggregation of multiple plans by completely overriding the Basic Plan Document provisions.

(c) The Employer may adopt certain model amendments published by the Internal Revenue Service which specifically provide that their adoption shall notcause the Plan to be treated as an individually designed plan.

16.02. Amendments by the Employer that Affect Prototype Status.The Employer reserves the authority through a board of directors’ resolution or similar action, subject to the provisions of Section 16.04, to amend the Plan in a manner other than that provided in Section 16.01. However, uponmaking such amendment, the Employer may no longer participate in this prototype plan arrangement and shall be deemed to have an individually designed plan. Following such amendment, the Trustee may transfer the assets of the Trust to the trustforming part of such newly adopted plan upon receipt of sufficient evidence (such as a determination letter or opinion letter from the Internal Revenue Service or an opinion of counsel satisfactory to the Trustee) that such trust shall be aqualified trust under the Code.

16.03. Amendment by the Mass Submitter Sponsor and the Prototype Sponsor. The Mass Submitter Sponsor may inits discretion amend the mass submitter prototype plan at any time, subject to the provisions of Article 1 and Section 16.04, and provided that the Mass Submitter Sponsor mails a copy of such amendment to each Prototype Sponsor that maintainsthe prototype plan or a minor modifier of the prototype plan. Each Prototype Sponsor shall provide a copy of such amendment to each Employer adopting its prototype plan at the Employer’s last known address as shown on the books maintained bythe Prototype Sponsor or its affiliates.

The Prototype Sponsor may, in its discretion, amend the Plan or the Adoption Agreement, subjectto the provisions of Article 1 and Section 16.04, and provided that such amendment does not change the Plan’s status as a word for word adoption of the mass submitter prototype plan or a minor modifier of the mass submitter prototype plan,unless such Prototype Sponsor elects no longer to be a sponsoring organization with respect to the mass submitter prototype plan. The Prototype Sponsor shall provide a copy of such amendment to each Employer adopting its prototype plan at theEmployer’s last known address as shown on the books maintained by the Prototype Sponsor or its affiliates.

16.04. Amendments Affecting Vestedand/or Accrued Benefits. Except as permitted by Section 16.05, Section 1.19(e) and the Forms of Payment Addendum to the Adoption Agreement, and/or Code Section 411(d)(6) and regulations issued thereunder, no amendment to the Plan shallbe effective to the extent that it has the effect of decreasing a Participant’s Account or eliminating an optional form of benefit with respect to benefits attributable to service before the amendment. Furthermore, if the vesting schedule ofthe Plan is amended, the nonforfeitable interest of a Participant in his Account, determined as of the later of the date the amendment is adopted or the date it becomes effective, shall not be less than the Participant’s nonforfeitable interestin his Account determined without regard to such amendment.

If the Plan’s vesting schedule is amended because of a change to“top-heavy plan” status, as described in Subsection 15.01(f), the accelerated vesting provisions of Section 15.06 shall continue to apply for all Plan Years thereafter, regardless of whether the Plan is a “top-heavy plan”for such Plan Year.

If the Plan’s vesting schedule is amended and an Employee’s vested interest as calculated by using theamended vesting schedule is less in any year than the Employee’s vested interest calculated under the Plan’s vesting schedule

 

50


immediately prior to the amendment, the amended vesting schedule shall apply only to Employees hired on or after the effective date of the change in vestingschedule.

16.05. Retroactive Amendments made by Mass Submitter or Prototype Sponsor. Amendment made by the Mass Submitter Sponsor orPrototype Sponsor in accordance with Section 16.03 may be made effective on a date prior to the first day of the Plan Year in which it is adopted if, in published guidance, the Internal Revenue Service either permits or requires such anamendment to be made to enable the Plan and Trust to satisfy the applicable requirements of the Code and all requirements for the retroactive amendment are satisfied.

16.06. Termination. The Employer has adopted the Plan with the intention and expectation that contributions shall be continued indefinitely. However, said Employer has no obligation or liabilitywhatsoever to maintain the Plan for any length of time and may amend the Plan to discontinue contributions under the Plan or terminate the Plan at any time without any liability hereunder for any such discontinuance or termination. The Employer mayterminate the Plan by written notice delivered to the Trustee.

16.07. Distribution upon Termination of the Plan. Upontermination or partial termination of the Plan or complete discontinuance of contributions thereunder, each Participant (including a terminated Participant with respect to amounts not previously forfeited by him) who is affected by such terminationor partial termination or discontinuance shall have a vested interest in his Account of 100 percent. Subject to Section 12.01 and Article 14, upon receipt of written instructions from the Administrator, the Trustee shall distribute to eachParticipant or other person entitled to distribution the balance of the Participant’s Account in a single lump sum payment. In the absence of such instructions, the Trustee shall notify the Administrator of such situation and the Trustee shallbe under no duty to make any distributions under the Plan until it receives written instructions from the Administrator. Upon the completion of such distributions, the Trust shall terminate, the Trustee shall be relieved from ill liability under theTrust, and no Participant or other person shall have any claims thereunder, except as required by applicable law.

If distributionis to be made to a Participant or Beneficiary who cannot be located, the Administrator shall give written instructions to the Trustee to (a) escheat the distributable amount to the State or Commonwealth of the distributee’s last known addressor (b) draw a check in the distributable amount and mail it to the distributee’s last known address. In the absence of such instructions, the Trustee shall make distribution to the distributee by drawing a check in the distributable amount andmailing it to the distributee’s last known address.

16.08. Merger or Consolidation of Plan; Transfer of Plan Assets. In case ofany merger or consolidation of the Plan with, or transfer of assets and liabilities of the Plan to, any other plan, provision must be made so that each Participant 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.

Article 17. Amendment and Continuation of Prior Plan; Transfer of Funds to or from Other Qualified Plans.

17.01. Amendment and Continuation of Prior Plan. In the event the Employer has previously established a plan (the “prior plan”) which is adefined contribution plan under the Code and which on the date of adoption of the Plan meets the applicable requirements of Code Section 401(a), the Employer may, in accordance with the provisions of the prior plan, amend and restate the priorplan in the form of the Plan and become the Employer hereunder, subject to the following:

(a) Subject to the provisions of the Plan, eachindividual who was a Participant in the prior plan immediately prior to the effective date of such amendment and restatement shall become a Participant in the Plan.

(b) Except as provided in Section 16.04, no election may be made under the vesting provisions of the Adoption Agreement if such election would reduce the benefits of a Participant under the Plan to less than thebenefits to

 

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which he would have been entitled if he voluntarily separated from the service of the Employer immediately prior to such amendment and restatement.

(c) No amendment to the Plan shall decrease a Participant’s accrued benefit or eliminate an optional form of benefit, except aspermitted under Section 1.19(e) and the Forms of Payment Addendum to the Adoption Agreement.

(d) The amounts standing to the credit of aParticipant’s account immediately prior to such amendment and restatement which represent the amounts properly attributable to (1) contributions by the Participant and (2) contributions by the Employer and forfeitures shall constitute theopening balance of his Account or Accounts under the Plan.

(e) Amounts being paid to an Inactive Participant or to a Beneficiary inaccordance with the provisions of the prior plan shall continue to be paid in accordance with such provisions.

(f) Any election and waiverof the “qualified preretirement survivor annuity”, as defined in Section 14.01, in effect after August 23, 1984, under the prior plan immediately before such amendment and restatement shall be deemed a valid election and waiverof Beneficiary under Section 14.04 if such designation satisfies the requirements of Sections 14.05 and 14.06, unless and until the Participant revokes such election and waiver under the Plan.

(g) Unless the Employer and the Trustee agree otherwise, all assets of the predecessor trust shall be deemed to be assets of the Trust as of the effectivedate of such amendment. Such assets shall be invested by the Trustee as soon as reasonably practicable pursuant to Article 8. The Employer agrees to assist the Trustee in any way requested by the Trustee in order to facilitate the transfer of assetsfrom the predecessor trust to the Trust Fund.

17.02. Transfer of Funds from an Existing Plan. The Employer may from time totime direct the Trustee, in accordance with such rules as the Trustee may establish, to accept cash, allowable Fund Shares or participant loan promissory notes transferred for the benefit of Participants from a trust forming part of anotherqualified plan under the Code, provided such plan is a defined contribution plan. Such transferred assets shall become assets of the Trust as of the date they are received by the Trustee. Such transferred assets shall be credited toParticipants’ Accounts in accordance with their respective interests immediately upon receipt by the Trustee. A Participant’s interest under the Plan in transferred assets which were fully vested and nonforfeitable under the transferringplan or which were transferred to the Plan in a manner intended to satisfy the requirements of subsection (b) of this Section 17.02 shall be fully vested and nonforfeitable at all times. A Participant’s interest under the Plan intransferred assets which were transferred to the Plan in a manner intended to satisfy the requirements of subsection (a) of this Section 17.02 shall be determined in accordance with the terms of the Plan unless the transferor plan’svesting schedule was more favorable, in which case the Participant’s vested interest in such transferred assets shall be 100 percent. Such transferred assets shall be invested by the Trustee in accordance with the provisions of Subsection17.01(g) as if such assets were transferred from a prior plan. Except as otherwise provided below, no transfer of assets in accordance with this Section 17.02 may cause a loss of an accrued or optional form of be benefit protected by CodeSection 411(d)(6).

Effective for transfers made on or after January 1, 2002, the terms of the Plan as in effect at the time ofthe transfer shall apply to the amounts transferred regardless of whether such application would have the effect of eliminating or reducing an optional form of benefit protected by Code Section 411(d)(6) which was previously available withrespect to any amount transferred to the Plan pursuant to this Section 17.02, provided that such transfer satisfies the requirements set forth in either (a) or (b):

 

  (a)

(1) The transfer is conditioned upon a voluntary, fully informed election by the Participant to transfer his entire account balance to the Plan. As analternative to the transfer, the Participant is offered the

 

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opportunity to retain the form of benefit previously available to him (or, if he transferor plan is terminated, to receive any optional form of benefit forwhich the participant is eligible under the transferor plan as required by Code Section 411(d)(6));

(2) The defined contribution planfrom which the transfer is made is not a money purchase pension plan;

(3) If the defined contribution plan from which the transfer is madeincludes a qualified cash or deferred arrangement, the Plan includes a cash or deferred arrangement; and

(4) The transfer is made either inconnection with an asset or stock acquisition, merger or other similar transaction involving a change in employer of the employees of a trade or business i.e., an acquisition or disposition within the meaning of Section 1.410(b)-2(f)) or inconnection with the Participant’s change in employment status such that the participant is not entitled to additional allocation; under the transferor plan.

 

  (b) (1) The transfer satisfies the requirements of subsection (a)(1) of this Section 17.02;

(2) The transfer occurs at a time when the Participant is eligible, under the terms of the transferor plan, to receive an immediate distribution of hisaccount;

(3) If the transfer occurs on or after January 1, 2002, the transfer occurs at a time when the participant is not eligible toreceive an immediate distribution of his entire nonforfeitable account balance in a single sum distribution that would consist entirely of an eligible rollover distribution within the meaning of Code Section 401(a)(31)(C); and

(4) The amount transferred, together with the amount of any contemporaneous Code Section 401(a)(31) direct rollover to the Plan, equals the entirenonforfeitable account of the participant whose account is being transferred.

It is the Employer’s obligation to ensure that allassets of the Plan, other than those maintained in a separate trust or fund pursuant to the provisions of Section 20.10, are transferred to the Trustee. The Trustee shall have no liability for and no duty to inquire into the administration ofsuch transferred assets for periods prior to the transfer.

17.03. Acceptance of Assets by Trustee. The Trustee shall not acceptassets which are not either in a medium proper for investment under the Plan, as set forth in the Plan and the Service Agreement, or in cash. Such assets shall be accompanied by instructions in writing (or such other medium as may be acceptable tothe Trustee) showing separately the respective contributions by the prior employer and by the Participant, and identifying the assets attributable to such contributions. The Trustee shall establish such accounts as may be necessary or appropriate toreflect such contributions under the Plan. The Trustee shall hold such assets for investment in accordance with the provisions of Article 8, and shall in accordance with the written instructions of the Employer make appropriate credits to theAccounts of the Participants for whose benefit assets have been transferred.

17.04. Transfer of Assets from Trust. Effectiveon or after January 1, 2002, the Employer may direct the Trustee to transfer all or a specified portion of the Trust assets to any other plan or plans maintained by the Employer or the employer or employers of an Inactive Participant orParticipants, provided that the Trustee has received evidence satisfactory to it that such other plan meets all applicable requirements of the Code, subject to the following:

The assets so transferred shall be accompanied by instructions in writing (or such other medium as may be acceptable to the Trustee) from the Employernaming the persons for whose benefit such assets have been transferred, showing separately the respective contributions by the Employer and by each Inactive Participant, if any, and identifying the assets attributable to the various contributions.The Trustee shall not transfer assets

 

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hereunder until all applicable filing requirements are met. The Trustee shall have no further liabilities with respect to assets so transferred.

(b) A transfer of assets made pursuant to this Section 17.04 may result in the elimination or reduction of an optional form of benefit protectedby Code Section 411(d)(6), provided that the transfer satisfies the requirements set forth in either (1) or (2):

 

  (1) (i) The transfer is conditioned upon a voluntary, fully informed election by the Participant to transfer his entire Account to the other defined contribution plan. As analternative to the transfer, the Participant is offered the opportunity to retain the form of benefit previously available to him (or, if the Plan is terminated, to receive any optional form of benefit for which the Participant is eligible under thePlan as required by Code Section 411(d)(6)); and

(ii) If the Plan includes a qualified cash or deferred arrangementunder Code Section 401(k), the defined contribution plan to which the transfer is made must include a qualified cash or deferred arrangement; and

(iii) The transfer is made either in connection with an asset or stock acquisition, merger or other similar transaction involving a change in employer of the employees of a trade or business (i.e., an acquisition ordisposition within the meaning of Section 1.410(b)-2(f)) or in connection with the Participant’s change in employment status such that the Participant becomes an Inactive Participant.

 

  (2) (i) The transfer satisfies the requirements of subsection (1)(i) of this Section 17.04;

(ii) The transfer occurs at a time when the Participant is eligible, under the terms of the Plan, to receive an immediate distribution of his benefit;

(iii) If the transfer occurs on or after January 1, 2002, the transfer occurs at a time when the Participant is not eligible toreceive an immediate distribution of his entire nonforfeitable Account in a single sum distribution that would consist entirely of an eligible rollover distribution within the meaning of Code Section 401(a)(31)(C);

(iv) The Participant is fully vested in the transferred amount in the transferee plan; and

(v) The amount transferred, together with the amount of any contemporaneous Code Section 401(a)(31) direct rollover to the transferee plan, equalsthe entire nonforfeitable Account of the Participant whose Account is being transferred.

Article 18. Miscellaneous.

18.01. Communication to Participants. The Plan shall be communicated to all Eligible Employees by the Employer promptly after the Plan is adopted.

18.02. Limitation of Rights. Neither the establishment of the Plan and the Trust, nor any amendment thereof, nor the creation of anyfund or account, nor the payment of any benefits, shall be construed as giving to any Participant or other person any legal or equitable right against the Employer, Administrator or Trustee, except as provided herein; and in no event shall the termsof employment or service of any Participant be modified or in any way affected hereby. It is a condition of the Plan, and each Participant expressly agrees by his participation herein, that each Participant shall look solely to the assets held inthe Trust for the payment of any benefit to which he is entitled under the Plan.

 

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18.03. Nonalienability of Benefits. Except as provided in Code Sections 401(a)(13)(C) and (D) (relating tooffsets ordered or required under a criminal conviction involving the Plan, a civil judgment in connection with a violation or alleged violation of fiduciary responsibilities under ERISA, or a settlement agreement between the Participant and theDepartment of Labor in connection with a violation or alleged violation of fiduciary responsibilities under ERISA), Section 1.401(a)-13(b)(2) of the Treasury Regulations (relating to Federal tax levies), or as otherwise required by law, thebenefits provided hereunder shall not be subject to alienation, assignment, garnishment, attachment, execution or levy of any kind, either voluntarily or involuntarily, and any attempt to cause such benefits to be so subjected shall not berecognized. The preceding sentence shall also apply to the creation, assignment, or recognition of a right to any benefit payable with respect to a Participant pursuant to a domestic relations order, unless such order is determined by theAdministrator to be a qualified domestic relations order, as defined in Code Section 414(p), or any domestic relations order entered before January 1, 1985.

18.04. Qualified Domestic Relations Orders Procedures. The Administrator must establish reasonable procedures to determine the qualified status of a domestic relations order. Upon receiving a domesticrelations order, the Administrator shall promptly notify the Participant and any alternate payee named in the order, in writing, of the receipt of the order and the Plan’s procedures for determining the qualified status of the order. Within areasonable period of time after receiving the domestic relations order, the Administrator must determine the qualified status of the order and must notify the Participant and each alternate payee, in writing, of its determination. The Administratorshall provide such notice by mailing to the individual’s address specified in the domestic relations order, or in a manner consistent with the Department of Labor regulations.

If any portion of the Participant’s Account is payable during the period the Administrator is making its determination of the qualified status ofthe domestic relations order, the Administrator must make a separate accounting of the amounts payable. If the Administrator determines the order is a qualified domestic relations order within 18 months of the date amounts first are payablefollowing receipt of the order, the Administrator shall direct the Trustee to distribute the payable amounts in accordance with the order. If the Administrator does not make his determination of the qualified status of the order within the 18-monthdetermination period, the Administrator shall direct the Trustee to distribute the payable amounts in the manner the Plan would distribute if the order did not exist and shall apply the order prospectively if the Administrator later determines theorder is a qualified domestic relations order.

The Trustee shall set up segregated accounts for each alternate payee when properlynotified by the Administrator.

A domestic relations order shall not fail to be deemed a qualified domestic relations order merely becauseit requires the distribution or segregation of all or part of a Participant’s Account with respect to an alternate payee prior to the Participant’s earliest retirement age (as defined in Code Section 414(p)) under the Plan. Adistribution to an alternate payee prior to the Participant’s attainment of the earliest retirement age is available only if (a) the order specifies distribution at that time and (b) if the present value of the alternate payee’sbenefits under the Plan exceeds $5,000 as determined under Section 13.02 (or such larger amount as may be specified in Code Section 417(e)(1)), and the order requires, and the alternate payee consents to, a distribution occurring prior tothe Participant’s attainment of earliest retirement age.

18.05. Application of Plan Provisions in Multiple Employer Plans.Notwithstanding any other provision of the Plan to the contrary, if one of the Employers designated in Subsection 1.02(b) of the Adoption Agreement is not a Related Employer, the Prototype Sponsor reserves the right to take any or all of thefollowing actions:

(a) treat the Plan as a multiple employer plan;

(b) permit the Employer to amend the Plan to exclude the un-Related Employer from participation in the Plan; or

 

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(c) treat the Employer as having amended the Plan in the manner described in Section 16.02 such that theEmployer may no longer participate in this prototype plan arrangement.

For the period, if any, that the Prototype Sponsor elects to treatthe Plan as a multiple employer plan, each un-Related Employer shall be treated as a separate Employer for purposes of contributions, application of the “ADP” and “ACP” tests described in Sections 6.03 and 6.06, application ofthe Code Section 415 limitations described in Section 6.12, top-heavy determinations and application of the top-heavy requirement; under Article 15, and application of such other Plan provisions as the Employers determine to beappropriate. For any such period, the Prototype Sponsor shall continue to treat the Employer as participating in this prototype plan arrangement for purposes of Plan administration, notices or other communications in connection with the Plan, andother Plan-related services; provided, however, that if the Employer applies to the Internal Revenue Service for a determination letter, the multiple employer plan shall be filed on the form appropriate for multiple employer plans. The Administratorshall be responsible for administering the Plan as a multiple employer plan.

18.06. Veterans Reemployment Rights. Notwithstanding anyother provision of the Plan to the contrary, contributions, benefits, and service credit with respect to qualified military service shall be provided in accordance with Code Section 414(u). The Administrator shall notify the Trustee of anyParticipant with respect to whom additional contributions are made because of qualified military service.

18.07. Facility of Payment.In the event the Administrator determines, on the basis of medical reports or other evidence satisfactory to the Administrator, that the recipient of any benefit payments under the Plan is incapable of handling his affairs by reason of minority,illness, infirmity or other incapacity, the Administrator may direct the Trustee to disburse such payments to a person or institution designated by a court which has jurisdiction over such recipient or a person or institution otherwise having thelegal authority under state law for the care and control of such recipient. The receipt by such person or institution of any such payments shall be complete acquittance therefore, and any such payment to the extent thereof, shall discharge theliability of the Trust for the payment of benefits hereunder to such recipient.

18.08. Information between Employer and Trustee. TheEmployer agrees to furnish the Trustee, and the Trustee agrees to furnish the Employer, with such information relating to the Plan and Trust as may be required by the other in order to carry out their respective duties hereunder, including withoutlimitation information required under the Code and any regulations issued or forms adopted by the Treasury Department thereunder or under the provisions of ERISA and any regulations issued or forms adopted by the Department of Labor thereunder.

18.09. Effect of Failure to Qualify Under Code. Notwithstanding any other provision contained herein, if the Employer fails to obtain orretain approval of the Plan by the Internal Revenue Service as a qualified Plan under the Code, the Employer may no longer participate in this prototype Plan arrangement and shall be deemed to have an individually designed plan.

18.10. Directions, Notices and Disclosure. Any notice or other communication in connection with this Plan shall be deemed delivered in writing if addressedas provided below and if either actually delivered at said address or, in the case of a letter, three business days shall have elapsed after the same shall have been deposited in the United States mails, first-class postage prepaid and registered orcertified:

(a) If to the Employer or Administrator, to it at the address set forth in the Adoption Agreement, and, if to the Employer, tothe attention of the contact specified in Subsection 1.02(a) of the Adoption Agreement;

(b) If to the Trustee, to it at the address setforth in Subsection 1.03(a) the Adoption Agreement;

or, in each case at such other address as the addressee shall have specified by written noticedelivered in accordance with the foregoing to the addressor’s then effective notice address.

 

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Any direction, notice or other communication provided to the Employer, the Administrator or the Trusteeby another party which is stipulated to be in written form under the provisions of this Plan may also be provided in any medium which is permitted under applicable law or regulation. Any written communication or disclosure to Participants requiredunder the provisions of this Plan may be provided in any other medium (electronic, telephone or otherwise) that is permitted under applicable law or regulation.

18.11. Governing Law. The Plan and the accompanying Adoption Agreement shall be construed, administered and enforced according to ERISA, and to the extent not preempted thereby, the laws of the Commonwealth of Massachusetts.

Nothing contained in Sections 8.02, 19.01 or 19.06 or this Section 18.11 shall be construed in a manner which subjects a governmentalplan (as defined in Code Section 414(d)) or a non-electing church plan (as described in Code Section 410(d)) to the fiduciary provisions of Title 1 of ERISA.

Article 19. Plan Administration.

19.01. Powers and Responsibilities of the Administrator.Except to the extent such authority is delegated to the Investment Professional as agent for the Employer, as provided in Section 19.02, the Administrator has the full power and the full responsibility to administer the Plan in all of itsdetails, subject, however, to the requirements of ERISA. In addition to the powers and authorities expressly conferred upon it in the Plan, the Administrator shall have all such powers and authorities as may be necessary to carry out the provisionsof the Plan, including the discretionary power and authority to interpret and construe the provisions of the Plan, such interpretation to be final and conclusive on all persons claiming benefits under the Plan; to make benefit determinations; toutilize the correction programs or systems established by the Internal Revenue Service (such as the Employee Plans Compliance and Resolution System) or the Department of Labor; and to resolve any disputes arising under the Plan. The Administratormay, by written instrument, allocate and delegate its fiduciary responsibilities in accordance with ERISA Section 405, including allocation of such responsibilities to an administrative committee formed to administer the Plan.

19.02. Delegation of Authority to Investment Professional. The Employer may authorize the Investment Professional to act as its agent with respect to anyof the nonfiduciary powers, duties, and responsibilities retained by the Employer or the Administrator under the Plan. The Investment Professional may execute such instructions and directions as may be necessary to perform such powers, duties, andresponsibilities in the manner provided under the Plan.

19.03. Nondiscriminatory Exercise of Authority. Whenever, in the administration ofthe Plan, any discretionary action by the Administrator is required, the Administrator shall exercise its authority in a nondiscriminatory manner so that all persons similarly situated shall receive substantially the same treatment.

19.04. Claims and Review Procedures. Except to the extent that the provisions of any collective-bargaining agreement provide another method of resolvingclaims for benefits under the Plan, the provisions of this Section 19.04 shall control with respect to theresolution of such claims; provided, however, that the Employer may institute alternative claims procedures that are more restrictive on the Employer and more generous with respect to persons claiming a benefit under the Plan.

(a) Claims Procedure. Whenever a request for benefits under the Plan is wholly or partially denied, the Administrator shall notify the personclaiming such benefits of its decision in writing. Such notification shall contain (1) specific reasons for the denial of the claim, (2) specific reference to pertinent Plan provisions, (3) a description of any additional material orinformation necessary for such person to perfect such claim and an explanation of why such material or information is necessary, and (4) information as to the steps to be taken if the person wishes to submit a request for review. Suchnotification shall be given within 90 days after the claim

 

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is received by the Administrator (or within 180 days, if special circumstances require an extension of time for processing the claim, and if written noticeof such extension and circumstances is given to such person within the initial 90-day period). If such notification is not given within such period, the claim shall be considered denied as of the last day of such period and such person may request areview of his claim.

(b) Review Procedure. Within 60 days after the date on which a person receives a written notice of a deniedclaim (or, if applicable, within 60 days after the date on which such denial is considered to have occurred), such person (or his duly authorized representative) may (1) file a written request with the Administrator for a review of his denied claimand of pertinent documents and (2) submit written issues and comments to the Administrator. The Administrator shall notify such person of its decision in writing. Such notification shall be written in a manner calculated to be understood bysuch person and shall contain specific reasons for the decision as well as specific references to pertinent Plan provisions. The decision on review shall be made within 60 days after the request for review is received by the Administrator (or within120 days, if special circumstances require an extension of time for processing the request, such as an election by the Administrator to hold a hearing, and if written notice of such extension and circumstances is given to such person within theinitial 60-day period). If the decision on review is not made within such period, the claim shall be considered denied.

19.05. NamedFiduciary. The Administrator is a “named fiduciary” for purposes of ERISA Section 402(a)(1) and has the powers and responsibilities with respect to the management and operation of the Plan described herein.

19.06. Costs of Administration. Unless some or all are paid by the Employer, all reasonable costs and expenses (including legal, accounting, and employeecommunication fees) incurred by the Administrator and the Trustee in administering the Plan and Trust may be paid from the forfeitures (if any) resulting under Section 11.08, or from the remaining Trust Fund. All such costs and expenses paid fromthe Trust Fund shall, unless allocable to the Accounts of particular Participants, be charged against the Accounts of all Participants on a pro rata basis or in such other reasonable manner as may be directed by the Employer and accepted by theTrustee.

Article 20. Trust Agreement.

20.01. Acceptance of Trust Responsibilities. By executing the Adoption Agreement, the Employer establishes a trust to hold the assets of the Plan that are invested in Permissible Investments. By executing the AdoptionAgreement, the Trustee agrees to accept the rights, duties and responsibilities set forth in this Article. If the Plan is an amendment and restatement of a prior plan, the Trustee shall have no liability for and no duty to inquire into theadministration of the assets of the Plan for periods prior to the date such assets are transferred to the Trust.

20.02. Establishment of TrustFund. A trust is hereby established under the Plan. The Trustee shall open and maintain a trust account for the Plan and, as part thereof, Accounts for such individuals as the Employer shall from time to time notify the Trustee areParticipants in the Plan. The Trustee shall accept and hold in the Trust Fund such contributions on behalf of Participants as it may receive from time to time from the Employee. The Trust Fund shall be fully invested and reinvested in accordancewith the applicable provisions of the Plan in Fund Shares or as otherwise provided in Section 20.10.

The Trust is intended to qualifyas a domestic trust in accordance with Code Section 7701(a)(30)(E) and any regulations issued thereunder. Accordingly, only United States persons (as defined in Code Section 770l(a)(30) may have the authority to control all substantial decisionsregarding the Trust (including decisions to appoint, retain or replace the Trustee), unless the Plan filed a domestic trust election pursuant to Treasury Regulation Section 301.7701-7(f) or any subsequent guidance issued by the Internal RevenueService, or except as otherwise provided in applicable regulation or legislation.

 

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20.03. Exclusive Benefit. The Trustee shall hold the assets of the Trust Fund for the excusive purpose ofproviding benefits to Participants and Beneficiaries and defraying the reasonable expenses of administering the Plan. No assets of the Plan shall revert to the Employer except as specifically permitted by the terms of the Plan.

20.04. Powers of Trustee. The Trustee shall have no discretion or authority with respect to the investment of the Trust Fund but shall act solely asa directed trustee of the funds contributed to it. In addition to and not in limitation of such powers as the Trustee has by law or under any other provisions of the Plan, the Trustee shall have the following powers, each of which the Trusteeexercises solely as directed Trustee in accordance with the written direction of the Employer except to the extent a Plan asset is subject to Participant direction of investment and provided that no such power shall be exercised in any mannerinconsistent with the provisions of ERISA;

(a) to deal with all or any part of the Trust Fund and to invest all or a part of the Trust Fundin Permissible Investments, without regard to the law of any state regarding proper investment;

(b) to transfer to and invest all or anypart of the Trust in any collective investment trust which is then maintained by a bank or trust company (or any affiliate) and which is tax-exempt pursuant to Code Section 501(a) and Rev. Rul. 81-100; provided that such collectiveinvestment trust is a Permissible Investment; and provided, further, that the instrument establishing such collective investment trust, as a mended from time to time, shall govern any investment therein, and is hereby made a part of the Plan andthis Trust Agreement to the extent of such investment therein;

(c) to retain uninvested such cash as it may deem necessary or advisable,without liability for interest thereon, for the administration of the Trust;

(d) to sell, lease, convert, redeem, exchange, or otherwisedispose of all or any part of the assets constituting the Trust Fund;

(e) to enforce by suit or otherwise, or to waive, its rights onbehalf of the Trust, and to defend claims asserted against it or the Trust, provided that the Trustee is indemnified to its satisfaction against liability and expenses;

(f) to employ such agents and counsel as may be reasonably necessary in collecting, managing, administering, investing, distributing and protecting the Trust Fund or the assets thereof and to pay them reasonablecompensation;

(g) to compromise, adjust and settle any and all claims against or in favor of it or the Trust;

(h) to oppose, or participate in and consent to the reorganization, merger, consolidation, or readjustment of the finances of any enterprise, to payassessments and expenses in connection therewith, and to deposit securities under deposit agreements;

(i) to apply for or purchase annuitycontracts in accordance with Article 14;

(j) to hold securities unregistered, or to register them in its own name or in the name ofnominees;

(k) to appoint custodians to hold investments within the jurisdiction of the district courts of the United States and to depositsecurities with stock clearing corporations or depositories or similar organization;

(l) to make, execute, acknowledge and deliver any andall instruments that it deems necessary or appropriate to carry out the powers herein granted;

(m) generally to exercise any of the powersof an owner with respect to all or any part of the Trust Fund; and

 

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(n) to take all such actions as may be necessary under the Trust Agreement, to the extent consistent withapplicable law.

The Employer specifically acknowledges and authorizes that affiliates of the Trustee may act as its agent in theperformance of ministerial, nonfiduciary duties under the Trust. The expenses and compensation of such agent shall be paid by the Trustee.

The Trustee shall provide the Employer with reasonable notice of any claim filed against the Plan or Trust or with regard to any related matter, or of any claim filed by the Trustee on behalf of the Plan or Trust or with regard to anyrelated matter.

20.05. Accounts. The Trustee shall keep full accounts of all receipts and disbursements and other transactionshereunder. Within 120 days after the close of each Plan Year, within 90 days after termination of the Trust, and at such other times as may be appropriate, the Trustee shall determine the then net fair market value of the Trust Fund as of the closeof the Plan Year, as of the termination of the Trust, or as of such other time, whichever is applicable, and shall render to the Employer and Administrator an account of its administration of the Trust during the period since the last suchaccounting, including all allocations made by it during such period.

20.06. Approval of Accounts. To the extent permitted by law, thewritten approval of any account by the Employer or Administrator shall be final and binding, as to all matters and transactions stated or shown therein, upon the Employer, Administrator, Participants and all persons who then are or thereafter becomeinterested in the Trust. The failure of the Employer or Administrator to notify the Trustee within six months after the receipt of any account of its objection to the account shall, to the extent permitted by law, be the equivalent of writtenapproval. If the Employer or Administrator files any objections within such six month period with respect to any matters or transactions stated or shown in the account, and the Employer or Administrator and the Trustee cannot amicably settle thequestion raised by such objections, the Trustee shall have the right to have such questions settled by judicial proceedings. Nothing herein contained shall be construed so as to deprive the Trustee of the right to have judicial settlement of itsaccounts. In any proceeding for a judicial settlement of any account or for instructions, the only necessary parties shall be the Trustee, the Employer and the Administrator.

20.07. Distribution from Trust Fund. The Trustee shall make such distributions from the Trust Fund as the Employer or Administrator may direct (in writing or such other medium as may beacceptable to the Trustee), consistent with the terms of the Plan and either for the exclusive benefit of Participants or their Beneficiaries, or for the payment of expenses of administering the Plan.

20.08. Transfer of Amounts from Qualified Plan. If amounts are to be transferred to the Plan from another qualified plan or trust under CodeSection 401(a), such transfer shall be made in accordance with the provisions of the Plan and with such rules as may be established by the Trustee. The Trustee shall only accept assets which are in a medium proper for investment under thisTrust Agreement or in cash, and that are accompanied in a timely manner, as agreed to by the Administrator and the Trustee, by instructions in writing (or such other medium as may be acceptable to the Trustee) showing separately the respectivecontributions by the prior employer and the transferring Employee, the records relating to such contributions, and identifying the assets attributable to such contributions. The Trustee shall hold such assets for investment in accordance with theprovisions of this Trust Agreement.

20.09. Transfer of Assets from Trust. Subject to the provisions of the Plan, the Employermay direct the Trustee to transfer all or a specified portion of the Trust assets to any other plan or plans maintained by the Employer or the employer or employers of an Inactive Participant or Participants, provided that the Trustee has receivedevidence satisfactory to it that such other plan meets all applicable requirements of the Code. The assets so transferred shall be accompanied by written instructions from the Employer naming the persons for whose benefit such assets have beentransferred, showing separately the respective contributions by the Employer and by each Participant, if any.

 

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and identifying the assets attributable to the various contributions. The Trustee shall have no further liabilities with respect to assets so transferred.

20.10. Separate Trust or Fund for Existing Plan Assets. With the consent of the Trustee, the Employer may maintain a trust or fund underthis prototype plan document separate from the Trust Fund for guaranteed investment contracts/funds purchased prior to the adoption of this prototype plan document which are not Permissible Investments listed in the Service Agreement. The Trusteeshall have no authority and no responsibility for the Plan assets held in such separate trust or fund. The Employer shall be responsible for assuring that such separate trust or fund is maintained pursuant to a separate trust agreement signed by theEmployer and the trustee. The duties and responsibilities of the trustee of a separate trust shall be provided by the separate trust agreement, between the Employer and the trustee.

Notwithstanding the preceding paragraph, the Trustee or an affiliate of the Trustee may agree in writing to provide ministerial recordkeeping servicesfor guaranteed investment contracts/funds held in the separate trust or fund. The guaranteed investment contract(s) shall be valued as directed by the Employer or the trustee of the separate trust.

20.11. Voting; Delivery of Information. The Trustee shall deliver, or cause to be executed and delivered, to the Employer or Administrator all notices,prospectuses, financial statements, proxies and proxy soliciting materials received by the Trustee relating to securities held by the Trust or, if applicable, deliver these materials to the appropriate Participant or the Beneficiary of a deceasedParticipant. The Trustee shall not vote any securities held by the Trust except in accordance with the instructions of the Employer, Participant, or the Beneficiary of the Participant if the Participant is deceased; provided, however, that theTrustee may, in the absence

of instructions, vote “present” for the sole purpose of allowing such shares to be counted for establishmentof a quorum at a shareholders’ meeting. The Trustee shall have no duty to solicit instructions from Participants Beneficiaries, or the Employer.

20.12. Compensation and Expenses of Trustee. The Trustee’s fee for performing its duties hereunder shall be such reasonable amounts as the Trustee may from time to time specify in the Service Agreement orany other written agreement with the Employer. Such fee, any taxes of any kind which may be levied or assessed upon or with respect to the Trust Fund, and any and all expenses, including without limitation legal fees and expenses of administrativeand judicial proceedings, reasonably incurred by the Trustee in connection with its duties and responsibilities hereunder shall, unless some or all have been paid by said Employer, be paid either from forfeitures resulting under Section 11.08,or from the remaining Trust Fund and shall, unless allocable to the Accounts of particular Participants, be charged against the respective Accounts of all Participants, in such reasonable manner as the Trustee may determine.

20.13. Reliance by Trustee on Other Persons. The Trustee may rely upon and act upon any writing from any person,including the Investment Professional, authorized by the Employer or the Administrator pursuant to the Service Agreement or any other written direction to give instructions concerning the Plan and may conclusively rely upon and be protected inacting upon any written order from the Employer, the Administrator, or the Investment Professional or upon any other notice, request, consent, certificate, or other instructions or paper reasonably believed by it to have been executed by a dulyauthorized person, so long as it acts in good faith in taking or omitting to take any such action. The Trustee need not inquire as to the basis in fact of any statement in writing received from the Employer, the Administrator, or the InvestmentProfessional.

The Trustee shall be entitled to rely on the latest certificate it has received from the Employer or theAdministrator as to any person or persons authorized to act for the Employer or the Administrator hereunder and to sign on behalf of the Employer or the Administrator any directions or instructions, until it receives from the Employer or theAdministrator written notice that such authority has been revoked.

 

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Notwithstanding any provision contained herein, the Trustee shall be under no duty to take any actionwith respect to any Participant’s Account (other than as specified herein) unless and until the Employer, the Administrator, or the Investment Professional furnishes the Trustee with written instructions on a form acceptable to the Trustee, andthe Trustee agrees thereto in writing. The Trustee shall not be liable for an action taken pursuant to the Employer’s, the Administrator’s, or the Investment Professional’s written instructions nor for the collection of contributionsunder the Plan, nor the purpose or propriety of any distribution made thereunder).

20.14. Indemnification by Employer. The Employer shallindemnify and save harmless the Trustee, and all affiliates, employees, agents and sub-contractors of the Trustee, from and against any and all liability or expense (including reasonable attorneys’ fees) to which the Trustee, or such otherindividuals or entities, may be subjected by reason of any act or conduct being taken in the performance of any Plan-related duties, including those described in this Trust Agreement and the Service Agreement, unless such liability or expenseresults from the Trustee’s, or such other individuals’ or entities’, negligence or willful misconduct.

20.15. Consultation by Trusteewith Counsel. The Trustee may consult with legal counsel (who may be but need not be counsel for the Employer or the Administrator) concerning any question which may arise with respect to its rights and duties under the Plan and Trust, andthe opinion of such counsel shall, to the extent permitted by law, be full and complete protection in respect of any action taken or omitted by the Trustee hereunder in good faith and in accordance with the opinion of such counsel.

20.16. Persons Dealing with the Trustee. No person dealing with the Trustee shall be bound to see to the application of any money or property paid ordelivered to the Trustee or to inquire into the validity or propriety of any transactions.

20.17. Resignation or Removal of Trustee. TheTrustee may resign at any time by written notice to the Employer, which resignation shall be effective 60 days after delivery to the Employer. The Trustee may be removed by the Employer by written notice to the Trustee, which removal shall beeffective 60 days after delivery to the Trustee or such shorter period as may be mutually agreed upon by the Employer and the Trustee.

Except in the case of Plan termination, upon resignation or removal of the Trustee, the Employer shall appoint a successor trustee. Any such successor trustee shall, upon written acceptance of his appointment, become vested with the estate,rights, powers, discretion, duties and obligations of the Trustee hereunder as if he had been originally named as Trustee in this Agreement.

Upon resignation or removal of the Trustee, the Employer shall no longer participate in this prototype plan and shall be deemed to have adopted an individually designed plan. In such event, the Employer shall appoint a successor trusteewithin said 60-day period and the Trustee shall transfer the assets of the Trust to the successor trustee upon receipt of sufficient evidence (such as a determination letter or opinion letter from the Internal Revenue Service or an opinion ofcounsel satisfactory to the Trustee) that such trust shall be a qualified trust under the Code.

The appointment of a successor trusteeshall be accomplished by delivery to the Trustee of written notice that the Employer has appointed such successor trustee, and written acceptance of such appointment by the successor trustee. The Trustee may, upon transfer and delivery of the TrustFund to a successor trustee, reserve such reasonable amount as it shall deem necessary to provide for its fees, compensation, costs and expenses, or for the payment of any other liabilities chargeable against the Trust Fund for which it may beliable. The Trustee shall not be liable for the acts or omissions of any successor trustee.

20.18. Fiscal Year of the Trust. The fiscal yearof the Trust shall coincide with the Plan Year.

 

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20.19. Discharge of Duties by Fiduciaries. The Trustee and the Employer and any other fiduciary shalldischarge their duties under the Plan and this Trust Agreement solely in the interests of Participants and their Beneficiaries in accordance with the requirements of ERISA.

20.20. Amendment. In accordance with provisions of the Plan, and subject to the limitation; set forth therein, this Trust Agreement may be amended by an instrument in writing signed by the Employer andthe Trustee. No amendment to this Trust Agreement shall divert any part of the Trust Fund to any purpose other than as provided in Section 20.03.

20.21. Plan Termination. Upon termination or partial termination of the Plan or complete discontinuance of contributions thereunder, the Trustee shall make distributions to the Participants or other persons entitled todistributions as the Employer or Administrator directs in accordance with the provisions of the Plan. In the absence of such instructions and unless the Plan otherwise provides, the Trustee shall notify the Employer or Administrator of suchsituation and the Trustee shall be under no duty to make any distributions under the Plan until it receives written instructions from the Employer or Administrator. Upon the completion of such distributions, the Trust shall terminate, the Trusteeshall be relieved from all liability under the Trust, and no Participant or other person shall have any claims thereunder, except as required by applicable law.

20.22. Permitted Reversion of Funds to Employer. If it is determined by the Internal Revenue Service that the Plan does not initially qualify under Code Section 401, all assets then held under the Plan shall be returnedby the Trustee, as directed by the Administrator, to the Employer, but only if the application for determination is made by the time prescribed by law for filing the Employer’s return for the taxable year in which the Plan was adopted or suchlater date as may be prescribed by regulations. Such distribution shall be made within one year after the date the initial qualification is denied. Upon such distribution the Plan shall be considered to be rescinded and to be of no force or effect.

Contributions under the Plan are conditioned upon their deductibility under Code Section 404. In the event the deduction of acontribution made by the Employer is disallowed under Code Section 404, such contribution (to the extent disallowed) must be returned to the Employer within one year of the disallowance of the deduction.

Any contribution made by the Employer because of a mistake of fact must be returned to the Employer within one year of the contribution.

20.23. Governing Law. This Trust Agreement shall be construed, administered and enforced according to ERISA and to the extent not preempted thereby, thelaws of the State or Commonwealth in which the Trustee has its principal place of business.

Nothing contained in Sections 20.04 or 20.19or this Section 20.23 shall be construed in a manner which subjects a governmental plan (as defined in Code Section 414(d)) or a non-electing church plan (as described in Code Section 410(d)) to the fiduciary provisions of Title ofERISA.

 

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ADDENDUM

Re: Economic Growth and Tax Relief Reconciliation Act of 200

(“EGTRRA”)

Amendments for Fidelity Basic Plan Document No. 13

PREAMBLE

Adoption and Effective Date of Amendment. This amendment of the Plan is adopted to reflect certain provisions ofthe Economic Growth and Tax Relief Reconciliation Act of 2001 (“EGTRRA”). This amendment is intended as good faith compliance with the requirements of EGTRRA and is to be construed in accordance with EGTRRA and guidance issued thereunder.Except as otherwise provided below, this amendment shall be effective as of the first day of the first plan year beginning after December 31, 2001 or, if the plan document of which this addendum is a part is first effective on a date later thanthe first day of the first plan year beginning after December 31, 2001, the effective date of the plan.

Supercession of InconsistentProvisions. This amendment shall supersede the provisions of the Plan to the extent those provisions are inconsistent with the provisions of this amendment.

 

1. Section 2.01(j), “Compensation,” is hereby amended by adding the following paragraph to the end thereof:

Notwithstanding anything herein to the contrary, the annual Compensation of each Participant taken into account in determining allocations for any PlanYear beginning after December 31, 2001, shall not exceed $200,000, as adjusted for cost-of-living increases in accordance with Code Section 401(a)(17)(B). Annual Compensation means Compensation during the Plan Year or such otherconsecutive 12-month period over which Compensation is otherwise determined under the Plan (the determination period). The cost-of-living adjustment in effect for a calendar year applies to annual Compensation for the determination period thatbegins with or within such calendar year.

 

2. Section 2.01(1), “Deferral Contribution,” is hereby amended by replacing the period with a semicolon and adding the following to the end thereof:

provided, however, that the term “Deferral Contribution” shall exclude all catch-up contributions as described inSection 5.03(b)(1) for purposes of Matching Employer Contributions as described in Section 1.10 of the Adoption Agreement, unless otherwise elected by the Employer in Section (c) of the EGTRRA Amendments Addendum to the Adoption Agreement.

 

3. Section 2.01(uu), “Rollover Contribution” is hereby amended as follows:

“Rollover Contribution” means any distribution from an eligible retirement plan as defined in Section 5.06 that an Employee elects to contribute to the Plan in accordance with the terms of suchSection 5.06.

 

4. The existing text of Section 5.03 is hereby redesignated as Section 5.03(a), and a new Section 5.03(b) is hereby added to read as follows:

 

  (b) Catch-up Contributions.

 

  (1)

If elected by the Employer in Section (a) of the EGTRRA Amendments Addendum to the Adoption Agreement, all Participants who are eligible to make DeferralContributions

 

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under the Plan and who are projected to attain age 50 before the close of the calendar year, shall be eligible to make catch-up contributions in accordancewith, and subject to the limitations of, Code Section 414(v). Such catch-up contributions shall not be taken into account for purposes of the provisions of the Plan implementing the required limitations of Code Sections 402(g) and 415. The Planshall not be treated as failing to satisfy the provisions of the Plan implementing the requirements of Code Sections 401(k)(3), 401 (k)(11), 401 (k)(12), 410(b), or 416, as applicable, by reason of the making of such catch-up contributions.

 

  (2) Unless otherwise elected by the Employer in Section (b)(1) of the EGTRRA Amendments Addendum to the Adoption Agreement, if the Plan permits catch-up contributions, as described inparagraph (1) above on April 1, 2002 (or such later date as specified therein), then, notwithstanding anything herein to the contrary, effective April 1, 2002, the limit on Deferral Contributions, as otherwise provided inSection 1.07(a)(    ) (the “Plan Limit”) shall be 60% of Compensation for the payroll period in question, provided, however, that this Section 5.03(b)(2) shall be inapplicable if the Plan’sSection 1.01(g)(2) Amendment Effective Date is April 1, 2002.

 

  (3) In the event that the Plan Limit is changed during the Plan Year, for purposes of determining catch-up contribution for the Plan Year, as described in paragraph (1) above, thePlan Limit shall be determined pursuant to the time-weighted average method described in Proposed Income Tax Regulation Section 1.4l4(v)-1(b)(2)(i).

 

5. Section 5.06 is hereby amended to add the following paragraph to the end thereof:

Unless otherwise elected by the Employer in Section (c) of the EGTRRA Amendments Addendum to the Adoption Agreement, the Plan will accept Participant Rollover Contributions and/or direct rollovers ofdistributions made after December 31, 2001 (including Rollover Contributions received by the Participant as a surviving spouse, or a spouse or former spouse who is an alternate payee under a qualified domestic relations order), from thefollowing types of plans:

 

  (a) a qualified plan described in Code Sections 401(a) or 403(a), including after-tax employee contributions (provided, however, that any such after-tax employee contributions mustbe contributed in a direct rollover);

 

  (b) an annuity contract described in Code Section 403(b), excluding after-tax employee contributions;

 

  (c) an eligible plan under Code Section 457(b) that is maintained by a state, political subdivision of a state, or any agency or instrumentality of a state or political subdivisionof a state; and

 

  (d) Participant Rollover Contributions of the portion of a distribution from an individual retirement account or annuity described in Code Section 408(a) or 408(b) that is eligibleto be rolled over and would otherwise be includible in gross income, provided, however, that the Plan will in no event accept a rollover contribution consisting of nondeductible individual retirement account or annuity contributions.

 

6. The first paragraph of Section 6.02 is hereby amended by replacing the first sentence thereof with the following:

In no event shall the amount of Deferral Contributions made under the Plan for a calender year, when aggregated with the ‘elective deferrals’made under any other plan maintained by the Employer or a Related Employer, exceed the dollar limitation contained in Code Section 402(g) in effect at the beginning of such calendar year, except to the extent permitted underSection 5.03(b)(1) and Code Section 4l4(v), if applicable.

 

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7. Section 6.08 is hereby amended by adding the following sentence to the end thereof:

Notwithstanding anything herein to the contrary, the multiple use test described in Treasury Regulation Section 1.401(m)-2 and this Section 6.08 shall not apply for Plan Years beginning afterDecember 31, 2001.

 

8. Section 6.12 is hereby amended by adding a new subsection 6.12(e) thereto as follows:

 

  (e) Maximum Annual Additions for Limitation Years Beginning After December 31, 2001. Notwithstanding anything herein to the contrary, this subsection (e) shall be effectivefor Limitation Years beginning after December 31, 2001. Except to the extent permitted under Section 5.03(b)(1) and Code Section 414(v), if applicable, the “annual additions” that may be contributed or allocated to aParticipant’s Account under the Plan for any Limitation Year shall not exceed the lesser of:

 

  (1) $40,000, as adjusted for increases in the cost-of-living under Code Section 415(d), or

 

  (2) 100 percent of the Participant’s compensation, within the meaning of Code Section 415(c)(3), for the Limitation Year.

The compensation limit referred to in (2) shall not apply to any contribution for medical benefits after separation from service (within the meaningof Code Sections 401(h) or 4l9A(f)(2)) that is otherwise treated as an “annual addition.”

 

9. Section 9.04 is hereby amended by replacing the period with a semi-colon and adding the following to the end thereof:

Provided, however, that notwithstanding anything herein to the contrary, effective for Plan loans made after December 31, 2001, Plan provisionsprohibiting loans to any “owner-employee” or “shareholder-employee” shall cease to apply.

 

10. Section 10.05(b)(2) is hereby amended by replacing the semicolon with a period and adding the following to the end thereof:

Notwithstanding anything herein to the contrary, the rule in this Section 10.05(b)(2) shall be applied to a Participant who receives a distributionafter December 31, 2001 on account of hardship, by substituting the phrase “the 6-month period” for the phrase “the 12-month period.”

 

11. Section 10.05(b)(4) is hereby amended by adding the following phrase to the beginning thereof:

Effective for calendar years beginning before January 1, 2002, for a Participant who received a hardship distribution before January 1, 2001.

 

12. The existing text of Section 11.05 is hereby redesignated as Section 11.05(a), and a new Section 11.05(b) is hereby added to read as follows:

 

  (b)

Vesting of Employer Contributions. Notwithstanding anything herein to the contrary, the vesting schedule elected by the Employer in Section (d)(1) ofthe EGTRRA Amendments Addendum to the Adoption Agreement shall apply to all accrued benefits derived from Matching Employer Contributions and Nonelective Employer Contributions for Participants who complete an Hour of Service in a Plan Yearbeginning after December 31, 2001, except as otherwise elected by the Employer in (d)(2) of the EGTRRA Amendments Addendum to the Adoption Agreement. With respect to Participants covered by a collective bargaining agreement, the vesting scheduleelected in Section (d)(1) of the EGTRRA Amendments Addendum to the Adoption Agreement shall take effect on a later date if so elected in Section (d)(2).

 

3


 

The vesting schedule in (d)(1) will not apply to “Safe Harbor” Matching Contributions and/or “Safe Harbor” Nonelective Contributions,which are always 100% vested.

 

13. The existing text of Section 12.01 is hereby redesignated as Section 12.01(a), current subsections (a), (b), and (c) thereof are redesignated as paragraphs (1), (2), and(3), respectively, and the first sentence thereof is replaced with the following:

Subject to the application ofSection 12.01(b), a Participant, or his Beneficiary, may not receive a distribution from his Deferral Contributions, Qualified Nonelective Employer Contributions, Qualified Matching Employer Contributions, safe harbor Matching EmployerContributions or safe harbor Nonelective Employer Contributions Accounts earlier than upon the Participant’s separation from service with the Employer and all Related Employers, death, or disability, except as otherwise provided in Article 10or Section 12.04.

 

14. Section 12.01 is hereby amended by adding a new subsection (b) to the end thereof:

(b) If elected by the Employer in Section (f) of the EGTRRA Amendments Addendum to the Adoption Agreement, notwithstanding subsection (a) ofthis Section 12.01, a Participant, or his Beneficiary, may receive a distribution after December 31, 2001 (or such later date as specified therein) from his Deferral Contributions, Qualified Nonelective Employer Contributions, QualifiedMatching Employer Contributions, safe harbor Matching Employer Contributions or safe harbor Nonelective Employer Contributions Accounts on account of the Participant’s severance from employment occurring after the dates specified in Section(f) of the EGTRRA Amendments Addendum to the Adoption Agreement.

 

15. Section 13.04 is hereby amended by adding the following paragraph to the end thereof:

Notwithstanding anything herein to the contrary, the following provisions shall apply to distributions made after December 31, 2001.

 

  (i) Modification of definition of eligible retirement plan. For purposes of this Section 13.04, an “eligible retirement plan” shall also mean an annuity contractdescribed in Code Section 403(b) and an eligible deferred compensation plan under Code Section 457(b) that is maintained by a state, political subdivision of a state, or any agency or instrumentality of a state or political subdivision ofa state and which agrees to separately account for amounts transferred into such plan from this Plan. The definition of “eligible retirement plan” shall also apply in the case of a distribution to a surviving spouse, or to a spouse orformer spouse who is the alternate payee under a qualified domestic relations order, as defined in Code Section 414(p).

 

  (ii) Modification of definition of eligible rollover distribution to exclude hardship distributions. For purposes of this Section 13.04, any amount that is distributedon account of hardship shall not be an “eligible rollover distribution” and the “distributee” may not elect to have any portion of such a distribution paid directly to an “eligible retirement plan.”

 

  (iii) Modification of definition of eligible rollover distribution to include after-tax Employee Contributions. For purposes of this Section 13.04, a portion of a distributionshall not fail to be an “eligible rollover distribution” merely because the portion consists of after-tax Employee Contributions which are not includible in gross income. However, such portion may be transferred only to an individualretirement account or annuity described in Code Section 408(a) or (b), or to a qualified defined contribution plan described in Code Section 401(a) or 403(a) that agrees to separately account for amounts so transferred, includingseparately accounting for the portion of such distribution which is includible in gross income and the portion of such distribution which is not so includible.

 

4


16. Article 15 is hereby amended by adding a new Section 15.08 at the end thereof as follows:

15.08. Modification of Top-Heavy Provisions. Notwithstanding anything herein to the contrary, this Section 15.08 shall apply forpurposes of determining whether the Plan is a top-heavy plan under Code Section 416(g) for Plan Years beginning after December 31, 2001, and whether the Plan satisfies the minimum benefits requirements of Code Section 416(c) for suchyears. This Section modifies the rules in his Article 15 of the Plan for Plan Years beginning after December 31, 2001.

(a)Determination of top-heavy status.

(1) Key employee. Key employee means any Employee or former Employeeincluding any deceased Employee) who at any time during the Plan Year that includes the determination date was an officer of the Employer having annual compensation greater than $130,000 (as adjusted under Code Section 416(i)(1) for Plan Yearsbeginning after December 31, 2002), a 5-percent owner of the Employer, or a 1-percent owner of the Employer having annual compensation of more than $150,000. For this purpose, annual compensation means compensation within the meaning of CodeSection 415(c)(3). The determination of who is a key employee will be made in accordance with Code Section 416(i)(1) and the applicable regulations and other guidance of general applicability issued thereunder.

(2) Determination of present values and amounts. This Section 15.08(a)(2) shall apply for purposes of determining the presentvalues of accrued benefits and the amounts of account balances of Employees as of the determination date.

(A)Distributions during year ending on the determination date. The percent values of accrued benefits and the amounts of account balances of an Employee as of the determination date shall be increased by the distributions made with respect tothe Employee under the Plan and any plan aggregated with the Plan under Code Section 416(g)(2) during the 1-year period ending on the determination date. The preceding sentence shall also apply to distributions under a terminated plan which,had it not been terminated, would have been aggregated with the Plan under Code Section 416(g)(2)(A)(i). In the case of a distribution made for a reason other than separation from service, death, or disability, this provision shall beapplied by substituting the phrase “5-year period” for the phrase “1-year period.”

(B) Employees notperforming services during year ending on the determination date. The accrued benefits and accounts of any individual who has not performed services for the Employer during the 1-year period ending on the determination date shall not be takeninto account.

(b) Minimum benefits.

 

  (1) Matching contributions. Matching Employer Contributions shall be taken into account for purposes of satisfying the minimum contribution requirements of CodeSection 416(c)(2) and the Plan. The preceding sentence shall apply with respect to Matching Employer Contributions under the Plan or, if the Plan provides that the minimum contribution requirement shall be met in another plan, such other plan.Matching Employer Contributions that are used to satisfy the minimum contribution requirements shall be treated as matching contributions for purposes of the actual contribution percentage test and other requirements of Code Section 401(m).

 

  (2) Contributions under other plans. The Employer may provide in the Adoption Agreement that the minimum benefit requirement shall be met in another plan (including another planthat consists solely of a cash or deferred arrangement which meets the requirements of Code Section 401(k)(12) and matching contributions with respect to which the requirements of Code Section 401(m)(11) are met).

(c) Other Modifications. The top-heavy requirements of Code Section 416 and this Article 15 shall not apply in any year beginning afterDecember 31, 2001, in which the Plan consists solely of a cash or deferred arrangement which meets the requirements of Code Section 401(k)(12) and Matching Employer Contributions with respect to which the requirements of CodeSection 401(m)(11) are met

 

5


ADDENDUM

IRS Model Amendment for Proposed Regulations Under Section 401(a)(9) of the Internal Revenue Code

Distributions for Calendar Years Beginning on or After 2002. With respect to distributions under the Plan made for calendar years beginning on or after January 1, 2002, the Plan will apply the minimum distribution requirementsof section 401(a)(9) of the Internal Revenue Code in accordance with the regulations under section 401(a)(9) that were proposed on January 17, 2001, no withstanding any provision of the Plan to the contrary. This amendment shall continue ineffect until the end of the last calendar year beginning before the effective date of final regulations under section 401(a)(9) or such other date as may be specified in guidance published by the Internal Revenue Service.

 

6


ADDENDUM

IRS Model Amendment for Final and Temporary Regulations

Under Internal Revenue CodeSection 401(a)(9)

Section 1. General Rules

 

1.1 Effective Date. The provisions of this addendum will apply for purposes of determining required minimum distributions for calendar years beginning with the 2003 calendar year.

 

1.2 Precedence. The requirements of this addendum will take precedence over any inconsistent provisions of the Plan.

 

1.3 Requirements of Treasury Regulations Incorporated. All distributions required under this addendum will be determined and made in accordance with the Treasury regulations undersection 401(a)(9) of the Internal Revenue Code.

 

1.4 TEFRA Section 242(b)(2) Elections. Notwithstanding the other provisions of this addendum, distributions may be made under a designation made before January 1, 1984, inaccordance with section 242(b)(2) of the Tax Equity and Fiscal Responsibility Act (TEFRA) and the provisions of the Plan that relate to section 242(b)(2) of TEFRA.

Section 2. Time and Manner of Distribution.

 

2.1. Required Beginning Date. The Participant’s entire interest will be distributed, or begin to be distributed, to the Participant no later than the Participant’s RequiredBeginning Date.

 

2.2. Death of Participant Before Distributions Begin. If the Participant dies before distributions begin, the Participant’s entire interest will be distributed, or begin to bedistributed, no later than as follows:

 

(a) If the Participant’s surviving spouse is the Participant’s sole designated Beneficiary, then except as otherwise elected under section 6, distributions to the survivingspouse will begin by December 31 of the calendar year immediately following the calendar year in which the Participant died, or by December 31 of the calendar year in which the Participant would have attained age 70 1/2, if later.

 

(b) If the Participant’s surviving spouse is not the Participant’s sole designated Beneficiary, then, except as otherwise elected under section 6, distributions to thedesignated Beneficiary will begin by December 31 of the calendar year immediately following the calendar year in which the Participant died.

 

(c) If there is no designated Beneficiary as of September 30 of the year following the year of the Participant’s death, the Participant’s entire interest will bedistributed by December 31 of the calendar Year containing the fifth anniversary of the Participant’s death.

 

(d) If the Participant’s surviving spouse is the Participant’s sole designated Beneficiary and the surviving spouse dies after the Participant but before distributions to thesurviving spouse begin, this section 2.2, other than section 2.2(a), will apply as if the surviving spouse were the Participant.

For purposes of this section 2.2 and section 4, unless section 2.2(d) applies, distributions are considered to begin on the Participant’s Required Beginning Date. If section 2.2(d) applies, distribution is are considered to begin onthe date distributions are required to begin to the surviving spouse under section 2.2(a). If distributions under an annuity purchased from an insurance company irrevocably commence to the Participant before the Participant’s Required BeginningDate (or to the Participant’s surviving spouse before the date distributions are required to begin to the surviving spouse under section 2.2(a)), the date

 

7


distributions are considered to begin is the date distributions actually commence.

2.3 Forms of Distribution. Unless the Participant’s interest is distributed in the form of an annuity purchased from an insurance company or in a single sum on or before the Required Beginning Date, as of thefirst distribution calendar year distributions will be made in accordance with sections 3 and 4 of this addendum. If the Participant’s interest is distributed in the form of an annuity purchased from an insurance company, distributionsthereunder will be made in accordance with the requirements of section 401(a)(9) of the Code and the Treasuryregulations.

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

 

3.1 Amount of Required Minimum Distribution For Each Distribution Calendar Year. During the Participant’s lifetime, the minimum amount that will be distributed for eachdistribution calendar year is the lesser of:

 

  (a) the quotient obtained by dividing the Participant’s account balance by the distribution period in the Uniform Lifetime Table set forth in section 1.401(a)(9)-9 of the Treasuryregulations, using the Participant’s age as of the Participant’s birthday in the distribution calendar year; or

 

  (b) if the Participant’s sole designated Beneficiary for the distribution calendar year is the Participant’s spouse, the quotient obtained by dividing the Participant’saccount balance by the number in the Joint and Last Survivor Table set forth in section 1.401(a)(9)-9 of the Treasury regulations, using the Participant’s and spouse’s attained ages as of the Participant’s and spouse’s birthdaysin the distribution calendar year.

 

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

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

 

4.1 Death On or After Date Distributions Begin.

 

(a) Participant Survived by Designated Beneficiary. If the Participant dies on or after the date distributions begin and there is a designated Beneficiary, the minimum amount that willbe distributed for each distribution calendar year after the year of the Participant’s death is the quotient obtained by dividing the Participant’s account balance by the longer of the remaining life expectancy of the Participant or theremaining life expectancy of the Participant’s designated Beneficiary, determined as follows:

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

(2) If the Participant’ssurviving spouse is the Participant’s sole designated Beneficiary, the remaining life expectancy of the surviving spouse is calculated for each distribution calendar year after the year of the Participant’s death using the survivingspouse’s age as of the spouse’s birthday in that year. For distribution calendar years after the year of the surviving spouse’s death, the remaining life expectancy of the surviving spouse is calculated using the age of the survivingspouse as of the spouse’s birthday in the calendar year of the spouse’s death, reduced by one for each subsequent calendar year.

(3) If theParticipant’s surviving spouse is not the Participant’s sole designated Beneficiary, the designated Beneficiary’s remaining life expectancy is calculated using the age of the Beneficiary in the year following the year of theParticipant’s death, reduced by one for each subsequent year.

(b) No Designated Beneficiary. If the Participant dies on or after the datedistributions begin and there is no designated Beneficiary as of September 30 of the year after the year of the Participant’s death, the minimum amount that will be distributed for each distribution calendar year after the year of theParticipant’s death is the

 

8


quotient obtained by dividing the Participant’s account balance by the Participant’s remaining life expectancy calculated using the age of theParticipant in the year of death, reduced by one for each subsequent year.

 

4.2 Death Before Date Distributions Begin.

(a) Participant Survived byDesignated Beneficiary. Except as otherwise elected under section 6, if the Participant dies before the date distributions begin and there is a designated Beneficiary, the minimum amount that will be distributed for each distribution calendar yearafter the year of the Participant’s death is the quotient obtained by dividing the Participant’s account balance by the remaining life expectancy of the Participant’s designated Beneficiary, determined as provided in section 4.1.

(b) No Designated Beneficiary. If the Participant dies before the date distributions begin and there is no designated Beneficiary as of September 30of the year following the year of the Participant’s death, distribution of the Participant’s entire interest will be completed by December 31 of the calendar year containing the fifth anniversary of the Participant’s death.

(c) Death of Surviving Spouse Before Distributions to Surviving Spouse Are Required to Begin. If the Participant dies before the date distributions begin,the Participant’s surviving spouse is the Participant’s sole designated Beneficiary, and the surviving spouse dies before distributions are required to begin to the surviving spouse under section 2.2(a), this section 4.2 will apply as ifthe surviving spouse were the Participant.

Section 5. Definitions.

 

5.1 Designated Beneficiary. The individual who is the designated Beneficiary, as such term is defined under section 2.01 of the Plan, and is the designated Beneficiary under section401(a)(9) of the Internal Revenue Code and section 1.401(a)(9)-1, Q&A-4, of the Treasury regulations.

 

5.2 Distribution calendar year. A calendar year for which a minimum distribution is required. For distributions beginning before the Participant’s death, the first distributioncalendar year is the calendar year immediately preceding the calendar year which contains the Participant’s Required Beginning Date. For distributions beginning after the Participant’s death, the first distribution calendar year is thecalendar year in which distributions are required to begin under section 2.2. The required minimum distribution for the Participant’s first distribution calendar year will be made on or before the Participant’s Required Beginning Date. Therequired minimum distribution for other distribution calendar years, including the required minimum distribution for the distribution calendar year in which the Participant’s Required Beginning Date occurs, will be made on or beforeDecember 31 of that distribution calendar year.

 

5.3 Life expectancy. Life expectancy as computed by use of the Single Life Table in section 1.401(a)(9)-9 of the Treasury regulations.

 

5.4 Participant’s account balance. The account balance as of the last valuation date in the calendar year immediately preceding the distribution calendar year (valuation calendaryear) increased by the amount of any contributions made and allocated or forfeitures allocated to the account balance as of dates in the valuation calendar year after the valuation date and decreased by distributions made in the valuation calendaryear after the valuation date. The account balance for the valuation calendar year includes any amounts rolled over or transferred to the Plan either in the valuation calendar year or in the distribution calendar year if distributed or transferredin the valuation calendar year.

 

5.5 Required Beginning Date. The Required Beginning Date, as such term is defined in section 2.01 of the Plan.

 

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Section 6. Elections.

 

(a) Participants or Beneficiaries May Elect 5-Year Rule. Participants or Beneficiaries may elect on an individual basis whether the 5-year rule or the life expectancy rule in sections2.2 and 4.2 of this addendum applies to distributions after the death of a Participant who has a designated Beneficiary. The election must be made no later than the earlier of September 30 of the calendar year in which distribution would berequired to begin under section 2.2 of this addendum, or by September 30 of the calendar year which contains the fifth anniversary of the Participant’s (or, if applicable, the surviving spouse’s) death. If neither the Participant northe Beneficiary makes an election under this section 6, distributions will be made in accordance with sections 2.2 and 4.2 of this addendum.

 

(b) Designated Beneficiary Receiving Distributions Under 5-Year Rule May Elect Life Expectancy Distributions. A designated Beneficiary who is receiving payments under the 5-year rulemay make a new election to receive payments under the life expectancy rule until December 31, 2003, provided that all amounts that would have been required to be distributed under the life expectancy rule for all distribution calendar yearsbefore 2004 are distributed by the earlier of December 31, 2003 or the end of the 5-year period.

 

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[Plan Name]

ADDENDUM

Re: Economic Growth and Tax Relief Reconciliation Act of 2001

(‘EGTRRA”)

SecondAmendment for Fidelity Basic Plan Document No. 13

PREAMBLE

Adoption and Effective Date of Amendment. This amendment of the Plan is adopted to reflect certain provisions of the Economic Growth and Tax Relief Reconciliation Act of 2001 (“EGTRRA”). Thisamendment is intended as good faith compliance with the requirements of EGTRRA and is to be construed in accordance with EGTRRA and guidance issued thereunder. This amendment shall be effective December 1, 2003.

Supersession of Inconsistent Provisions. This amendment shall supersede the provisions of the Plan to the extent those provisions are inconsistent with theprovisions of this amendment.

The following paragraph is hereby added to the end of Section 16.04

Notwithstanding anything in the Basic Plan Document or Adoption Agreement (including addenda thereto) to the contrary, to the extent permitted by anyregulation or other guidance under the Code, forms of payment may be eliminated without the application of a waiting period and without prior notice to Participants effective with respect to Participants whose Annuity Starting Dates occur on orafter the date the Plan amendment eliminating such forms of payment is adopted provided, however, that to the extent any regulation or other guidance under the Code requires prior notice to Participants as a precondition to the elimination of anyform of payment or imposes any other requirement on such elimination, no such elimination shall be effective unless the Plan Administrator has complied with such notice or other requirement.

 

11


LOGO   

DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

WASHINGTON, D.C. 20224

TAX EXEMPT AND GOVERNMENT ENTITIES DIVISION   

Plan Description: Prototype Non-standardized Safe Harbor Profit sharing plan with CODA

FFN: 5031874AE13 – 001 Case: 200303221 EIN: 04 – 2033129

Letter Serial No:K371861b

 

FIDELITY MANAGEMENT & RESEARCH CO

82DEVONSHIRE STREET

BOSTON, MA 02109

  

Contact Person:

    Ms.Arrington 50-00197

Telephone Number:

    (202) 283-8811

In Reference To:

    T:EP:RA:T4

Date: 10/09/2003

  
  
  
  
  
  

Dear Applicant:

Inour opinion, the amendment to the form of the plan identified above does not in and of itself adversely affect the plan’s acceptability under section 401 of the internal Revenue Code. This opinion relates only to the amendment to the form ofthe plan. It is not an opinion as to the acceptability of any other amendment or of the form of the plan as a whole, or as to the effect of other Federal or local statutes.

You must furnish a copy of this letter to each employer who adopts this plan. You are also required to send a copy of the approved form of the plan, any approved amendments and related documents to Employee PlansDeterminations in Cincinnati at the address specified in section 9.11 of Rev. Proc. 2000-20, 2000-6 I.R.B. 553.

This letter considers the changes inqualifications requirements made by the Uruguay Round Agreements Act (GATT), Pub. L. 103-465. the Small Business Job Protection Act of 1996, Pub. L. 104-188, the Uniformed Services Employment and Reemployment Rights Act of 1994, Pub. L. 103-353, the Taxpayer Relief Act of 1997, Pub. L. 105-34, the Job Creation and Workers Assistance Act of 2002, Pub. L.105-206 and the Community Renewal Tax Relief Act of 2000, Pub. L. 106-554. These laws are referred to collectively as GUST.

Our opinion on theacceptability of the form of the plan is not a ruling or determination as to whether an employer’s plan qualifies under Code section 401(a). However, an employer that adopts thiS plan may rely on this letter with respect to the qualification ofits plan under code section 401(a), as provided for in Announcement 2001-77, 2001-30 I.R.B. and outlined below. The terms of the plan must be followed in operation.

Except as provided below, our opinion does not apply with respect to the requirements of (a) Code sections 40l(a)(4), 401(a)(26), 401(1), 410(b) and 414(B). Our opinion does not apply for purposes of Code section401(a)(10)(B) and section 401(a)(16) if an employer ever maintained another qualified plan for one or more employees who are covered by this plan. For this purpose, the employer will not be considered to have maintained another plan merelybecause the employer has maintained another defined contribution plan(s), provided such other plan(s) has been terminated prior to the effective date of this plan and no annual additions have been credited to the account of any participant undersuch other plan(s) as of any date within the limitation year of this plan. Likewise, if this plan is first effective on or after the effective date of the repeal of Code section 415(e). the employer will not be considered to have maintained anotherplan merely because the employer has maintained a defined benefit plan(s), provided the defined benefit plan(s) has been terminated prior to the effective date of this plan. Our opinion also does not apply for purposes of Code section,401(a)(16) if, after December 31, 1985, the employer maintains a welfare benefit fund defined in Code section 419(e), which provides post retirement medical benefits allocated to separate accounts for key employees as defined in Codesection 4l9A(d)(3).


FIDELITY MANAGEMENT & RESEARCH CO

FFN: 5031874AH13-001

Page 2

Our opinion applies with respect to the requirements of Code section 410(b) if 100 percent of allnonexcludable employees benefit under the plan. Employers that elect a safe harbor allocation formula and a safe harbor compensation definition can also rely on an opinion letter with respect to the nondiscriminatory amounts requirement undersection 401(a)(4) and the requirements of sections 401(k) and 401(m) (except where the plan is a safe harbor plan under section 401(k)(12) that provides for the safe harbor contribution to be made under another plan).

An employer that elects to continue to apply the pre-GUST family aggregation rules __ years beginning after December 31, 1996, or the combined plan limit of section415(e) in years beginning after December 31, 1999, will not be able to rely on the opinion letter without a determination letter. The employer may request a determination letter by filing an application with Employee Plans Determinations onForm 5307, Application for Determination for Adopters of Master or Prototype or Volume Submitter Plans.

The form of the plan is a nonstandardized sateharbor plan that meets the requirements of section 4.14 of Rev. Proc. 2000-20. 2000-6 I.R.B. 553.

This letter with respect to the amendment to the form ofthe plan does not affect the applicability to the plan of the remedial amendment extension period of section 19 of Rev. Proc 2000-20, 2000-6 I.R.B. 553. The applicability of such provisions may be determined by reference to the initial opinionletter issued with respect to the plan.

If you, the master or prototype sponsor, have any questions concerning the IRS processing of this case, pleasecall the above telephone number. This number is only for use of the sponsor. Individual participants and/or adopting employers with questions concerning the plan should contact the master or prototype sponsor. The plan’s adoption agreement mustinclude the sponsor’s address and telephone number for inquiries by adopting employers.

If you write to the IRS regarding the plan, please provideyour telephone number and the most convenient time for us to call in case we need more information. Whether you call or write, please refer to the Letter Serial Number and File Folder Number shown in the heading of this letter.

You should keep this letter as a permanent record. Please notify us if you modify or discontinue sponsorship of this plan.

 

Sincerely yours,

LOGO
Director,
Employee Plans Rulings & Agreements


LOGO   

DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

WASHINGTON, D.C. 20224

  

TAX EXEMPT AND

GOVERNMENT ENTITIES

DIVISION

     

Plan Description: Prototype Standardized Profit Sharing Plan with CODA

FFN: 5021874AH13-002 Case: 200303222 EIN: 04-2033129

Letter Serial No: K271862b

 

   Contact Person:

FIDELITY MANAGEMENT & RESEARCH CO

  

Ms. Arrington 0-00197

82 DEVONSHIRE STREET

   Telephone Number:

BOSTON MA 02109

  

(202) 283-8811

   In Reference To:
  

T:EP:RA:T4

   Date: 10/09/2003

Dear Applicant:

In our opinion, the amendment to the form of the plan identified above does not in and of itself adversely affect the plan’s acceptability under section 401 of the Internal Revenue Code. This opinion relates onlyto the amendment to the form of the plan. It is not an opinion as to the acceptability of any other amendment or of the form of the plan as a whole, or as to the effect of other Federal or local statutes.

You must furnish a copy of this letter to each employer who adopts this plan. You are also required to send a copy of the approved form of the plan, any approvedamendments and related documents to Employee Plans Determinations in Cincinnati at the address specified in section 9.11 of Rev. Proc. 2000-20, 2000-6 I.R.B. 553.

This letter considers the changes in qualifications requirements made by the Uruguay Round Agreements Act GATT). Pub. L. 103-465, the Small Business Job Protection Act of 1996, Pub- L 104-188 the Uniformed Services Employment andReemployment Rights Act of 1994, Pub. L. 103-353, the Taxpayer Relief act of 1997, Pub. L. 105-34, the Job Creation and Workers Assistance Act of 2002, Pub. L. 105-206 and the Community Renewal Tax Relief Act of 2000, Pub. L, 106-554. These laws arereferred to collectively as GUST.

Our opinion on the acceptability of the form of the plan is not a ruling or determination as to whether anemployer’s plan qualifies under Code section 401 (a). However, an employer that adopts this plan may rely on this letter with respect to the qualification of its plan under Code section 401(a), except as provided below, provided the eligibilityrequirements and contribution or benefit provisions are not more favorable for highly compensated employees than for other employees. The terms of the plan must be followed in operation. Except as stated below, Employee Plans Determinations will notissue a determination letter with respect to this plan.

Our opinion does not apply for purposes of Code section 401(a) (10) (B) and section401(a)(16) if an employer ever maintained another qualified plan for one or more employees who are covered by this plan, other than a specified paired plan within the meaning of section 4.13 of Rev. Proc. 2000-20, 2000-6 I.R.B. 553. for thispurpose, the employer will not be considered to have maintained another plan merely because the employee has maintained another defined contribution plan(s), provided such other plan(s) has been terminated prior to the effective date of this planand no annual additions have been credited to the account of any participant under such other plan(s) as of any date within the limitation year of this plan. Likewise, if this plan is first effective on or after the effective date of the repeal ofCode section 415 (e), the employer will not be considered to have maintained another plan merely because the employer has maintained a defined benefit plan(s), provided the defined benefit plan(s) has been terminated prior to the effective date ofthis plan. Our opinion also does not apply for purposes of Code section 401(a)(16) if, after December 31, 1985, the employee maintains a welfare benefit fund defined in Code section 419 (e), which provides postretirement medical benefitallocated to separate accounts for key employees as defined in Code section 419A(d)(3).


FIDELITY MANAGEMENT & RESEARCH CO

FFN: 5021874AH13 – 002

Page 2

An employer that adopts this plan may not rely on this opinion letter with respect to: (1) whether anyamendment or series of amendments to the plan satisfies the nondiscrimination requirements of section 1.401(a)(4)-5(a) of the regulations, except with respect to plan amendments granting past service that meet the safe harbor described insection 1.401(a)(4)-5(a)(5) and are not part of a pattern of amendments that significantly discriminates in favor of highly compensated employees; or (2) whether the plan satisfies the effective availability requirement of section1.401(a)(4)-4(c) of the regulations with respect to any benefit, right or feature.

An employer that adopts this plan as an amendment to a plan other thana standardized plan may not rely on this opinion letter with respect to whether a benefit, right or other feature that is prospectively eliminated satisfies the current availability requirements of section 1.401(a)-4 of the regulations.

An employer that elects to continue to apply the pre-GUST family aggregation rules in years beginning after December 31, 1996, or the combined plan limit ofsection 415(e) in years beginning after December 31, 1999, will not be able to rely on the opinion letter without a determination letter.

Theemployer may request a determination (1) as to whether the plan, considered with a 1 related qualified plans and, if appropriate, welfare benefit funds, satisfies the requirements of Code section 401(a)(16) as to limitations on benefitsand contributions in Code section 415 and the requirements of Code section 401(a)(10)(B) as to the top-heavy plan requirements in Code section 416; (2) regarding the nondiscriminatory effect of grants of past service; (3) with respect towhether a prospectively eliminated benefit, right or feature satisfies the current availability requirements; and (4) with respect to the continued application of the pre-GUST family aggregation rules in years beginning after December 31,1996, or the combined plan limit of section 415(e) in years beginning after December 31, 1999. The employer may request a determination letter by filing an application with Employee Plans Determinations on Form 5307, Application forDetermination for Adopters of Master or Prototype or Volume Submitter Plans.

This letter with respect to the amendment to the form of the plan does notaffect the applicability to the plan of the remedial amendment extension period of section 19 of Rev. Proc. 2000-20, 2000-6 I.R.B. 553. The applicability of such provisions may be determined by reference to the initial opinion letter issued withrespect to the plan.

If you, the master or prototype sponsor, have any questions concerning the IRS processing of this case, please call the abovetelephone number. This number is only for use of the sponsor. Individual participants and/or adopting employers with questions concerning the plan should contact the master or prototype sponsor. The plan’s adoption agreement must include thesponsor’s address and telephone number for inquiries by adopting employers.

If you write to the IRS regarding this plan, please provide yourtelephone number and the most convenient time for us to call in case we need more information. Whether you call or write, please refer to the Letter Serial Number and File Folder Number shown in the heading of this letter.

You should keep this letter as a permanent record. Please notify us if you modify or discontinue sponsorship of this plan.

 

Sincerely yours,

LOGO

Director,

Employee Plans Rulings & Agreements


Internal Revenue Service   

Department of the Treasury

Plan Description: Prototype Non-standardized Safe Harbor Profit Sharing Plan with CODA

FFN: 5031874AH13-001 Case: 200100706 EIN: 04-2033129

Letter Serial No: G371861a

  

Washington, DC 20224

FIDELI TY MANAGEMENT & RESEARCH CO

  

Contact Person:

  

Ms. Arrington 50-00197

82 DEVONSHIRE STREET

  

Telephone Number:

  

(202)283-8811

BOSTON, MA 02109

  

In Reference to:

  

T:EP:RA:T4

  

Date:

  

01/28/2007

Dear Applicant:

Inour opinion, the form of the plan identified above is acceptable under section 401 of the Internal Revenue Code for use by employers for the benefit of their employees. This opinion relates only to the acceptability of the form of the plan under theInternal Revenue Code. It is not an opinion of the effect of other Federal or local statutes.

You must furnish a copy of this letter to each employer whoadopts this plan. You are also required to send a copy of the approved form of the plan, any approved amendments and related documents to Employee Plans Determinations in Cincinnati at the address specified in section 9.11 of Rev. Proc. 2000-20,2000-6 I.R.B. 553.

This letter considers the changes in qualifications requirements made by the Uruguay Round Agreements Act (GATT), Pub. L. 103-465, theSmall Business Job Protection Act of 1996, Pub. L. 104-188, the Uniformed Services Employment and Reemployment Rights Act of 1994, Pub. L. 103-353, the Taxpayer Relief Act of 1997, Pub. L. 105-34, the Internal Revenue Service Restructuring andReform Act of 1998, Pub. L. 105-206 and the Community Renewal Tax Relief Act of 2000, Pub. L. 106-554. These laws are referred to collectively as GUST.

Our opinion on the acceptability of the form of the plan is not a ruling or determination as tO whether an employer’s plan qualifies under Code section 401(a). However, an employer that adopts this plan may rely on thisletter with respect to the qualification of its plan under Code section 401 (a), as provided for in Announcement 2001-77, 2001-30 I.R.B. and outlined below. The terms of the plan must be followed in operation.

Except as provided below, our opinion does not apply with respect to the requirements of: (a) Code sections 401(a)(4), 401(a) (26), 401(1), 410(b) and 414(s). Ouropinion does not apply for purposes of Code section 401(a)(10)(B) and section 401(a)(16) if an employer ever maintained another qualified plan for one or more employees who are covered by this plan. For this purpose, the employer will notbe considered to have maintained another plan merely because the employer has maintained another defined contribution plan(s), provided such other plan(s) has been terminated prior to the effective date of this plan and no annual additions have beencredited to the account of any participant under such other plan(s) as of any date within the limitation year of this plan. Likewise, if this plan is first effective on or after the effective date of the repeal of Code section 415(e), the employerwill not be considered to have maintained another plan merely because the employer has maintained a defined benefit plan(s), provided the defined benefit plan(s) has been terminated prior to the effective date of this plan. Our opinion also does notapply for purposes of Code section 401(a)(16) if, after December 31, 1985, the employer maintains a welfare benefit fund defined in Code section 419(e), which provides postretirement medical benefits allocated to separate accounts for keyemployees as defined in Code section 419A(d) (3).

Our opinion applies with respect to the requirements of Code section 410(b) if 100 percent of allnonexcludable employees benefit under the plan. Employers that elect a safe harbor allocation formula and a safe harbor compensation definition can also rely on an opinion letter with respect to the nondiscriminatory amounts requirement undersection 401(a)(4) and the requirements of sections 401(k) and 401(m) (except where the plan is a safe harbor plan under section 401(k)(12) that provides for the safe harbor contribution to be made under another plan).


FIDELITY MANAGEMENT & RESEARCH CO

FFN: 5031874AH13-001

Page 2

An employer that elects to continue to apply the pre-GUST family aggregation rules in years beginning afterDecember 31, 1996, or the combined plan limit of section 415(e) in years beginning after December 31, 1999, will not be able to rely on the opinion letter without a determination letter. The employer may request a determination letter byfiling an application with Employee Plans Determinations on Form 5307, Application for Determination for Adopters of Master or Prototype or Volume Submitter Plans.

The form of the plan is a nonstandardized safe harbor plan that meets the requirements of section 4.14 of Rev. Proc. 2000-20, 2000-6 I.R.B. 553.

If you, the master or prototype sponsor, have any questions concerning the IRS processing of this case, please call the above telephone number. This number is only for use of the sponsor. Individual participants and/or adopting employerswith questions concerning the plan should contact the master or prototype sponsor. The Plan’s adoption agreement must include the sponsor’s address and telephone number for inquiries by adopting employers.

If you write to the IRS regarding this plan, please provide your telephone number and the most convenient time for us to call in case we need more information. Whetheryou call or write, please refer to the Letter Serial Number and File Folder Number shown in the heading of this letter.

You should keep this letter as apermanent record. Please notify us if you modify or discontinue sponsorship of this plan. ‘

 

Sincerely yours,

LOGO

Director

Employee Plans Rulings & Agreements


Internal Revenue Service   Department of the Treasury

Plan Description: Prototype Standardized Profit Sharing Plan with CODA

FFN: 5021874AH13 – 002 Case: 200100707 EIN: 04 – 2033129

 

Letter Serial No: G271862a   Washington, DC 20224
  Contact Person: Ms. Arrington 50-00197
FIDELITY MANAGEMENT & RESEARCH CO  
  Telephone Number: (202) 283-8811
82 DEVONSHIRE STREET  
  In Reference to: T:EP:RA:T4
BOSTON, MA 02109  
  Date: 01/28/2002

Dear Applicant:

Inour opinion, the form of the plan identified above is acceptable under section 401 of the Internal Revenue Code for use by employers for the benefit of their employees. This opinion relates only to the acceptability of the form of the plan under theInternal Revenue Code. It is not an opinion of the effect of other Federal or local attributes.

You must furnish a copy of this letter to each employerwho adopts this plan. You are also required to send a copy of the approved form of the plan, any approved amendments and related documents to Employee Plans Determinations in Cincinnati at the address specified in section 9-11 of Rev. Proc. 2000-20,2000-6 I.R.B. 553.

This letter considers the changes in qualifications requirements made by the Uruguay Round Agreements Act (GATT) ,Pub. L. 103-465, the Small Business Job Protection Act of 1996, Pub. L. 104-188, the Uniformed Services Employment and Reemployment Rights Act of 1994, Pub. L. 103-353, the Taxpayer Relief Act of 1997, Pub. L. 105-34, the Internal RevenueService Restructuring and Reform Act of 1998, Pub. L. 105-206 and the Community Renewal Tax Relief Act of 2000, Pub. L. 106-554. These laws are referred to collectively as GUST.

Our opinion on the acceptability of the form of the plan is not a ruling or determination as to whether an employer’s plan qualifies under Code section 401(a). However, an employer that adopts this plan may relyon this letter with respect to the qualification of its plan under Code section 401(a), except as provided below, provided the eligibility requirements and contribution or benefit provisions are not more favorable for highly compensated employeesthan for other employees. The terms of the plan must be followed in operation. Except as stated below, Employee Plans Determinations will not issue a determination letter with respect to this plan.

Our opinion does not apply for purposes of Code section 401(a)(10)(B) and section 401(a)(16) if an employer ever maintained another qualified plan for one ormore employees who are covered by this plan, other than a specified paired plan within the meaning of section 4.13 of Rev. Proc. 2000-20, 2000-6 I.R.B. 553. For this purpose, the employer will not be considered to have maintained another plan merelybecause the employer has maintained another defined contribution plan(s), provided such other plan(s) has been terminated prior to the effective date of this plan and no annual additions have been credited to the account of any participant undersuch other plan(s) as of any date within the limitation year of this plan. Likewise, if this plan is first effective on or after the effective date of the repeal of Code section 415(e), the employer will not be considered to have maintained anotherplan merely because the employer has maintained a defined benefit plan(s) , provided the defined benefit plan(s) has been terminated prior to the effective date of this plan. Our opinion also does not apply for purposes of Code section401(a)(16) if, after December 31, 1985, the employer maintains a welfare benefit fund defined in Code section 419(e), which provides postretirement medical benefits a located to separate accounts for key employees as defined in Codesection 419A(d)(3).

An employer that adopts this plan may not rely on this opinion letter with respect to: (1) whether any amendment or series ofamendments to the plan satisfies the nondiscrimination requirements of section 1.401(a)(4)-5(a) of the regulations, except with respect to plan amendments granting past service that meet the safe harbor described in section1.401(a)(4)-5(a)(5) and are not part of a pattern of amendments that significantly discriminates in favor of highly compensated employees, or (2) whether the plan satisfies the effective availability requirement of section1.401(a)(4)-4(c) of the regulations with respect to any benefit, right or feature.


FIDELITY MANAGEMENT & RESEARCH CO

FFN: 5021874AH13-002

Page 2

An employer that adopts this plan as an amendment to a plan other than a standardized plan may not rely on thisopinion letter with respect to whether a benefit, right or other feature that is prospectively eliminated satisfies the current availability requirements of section 1.401(a)-4 of the regulations.

An employer that elects to continue to apply the pre-GUST family aggregation rules in years beginning after December 31, 1996, or the combined plan limit of section415(e) in years beginning after December 31, 1999, will not be able to rely on the opinion letter without a determination letter.

The employer mayrequest a determination (1) as to whether the plan, considered with all related qualified plans and, if appropriate, welfare benefit funds, satisfies the requirements of Code section 401(a)(16) is to limitations on benefits andcontributions in Code section 415 and the requirements of Code section 401(a)(10)(B) as to the top-heavy plan requirements in Code section 416; (2) regarding the nondiscriminatory effect of grants of past service; (3) with respect towhether a pro spectively eliminated benefit, right or feature satisfies the current availability requirements; and (4) with respect to the continued application of the pre-GUST family aggregation rules in years beginning after December 31,1996, or the combined plan Unit of section 415(e) in years beginning after December 31, 1999. The employer may request a determination letter by filing an application with Employee Plans Determinations on Form 5307, Application forDetermination for Adopters of Master or Prototype or Volume Submitter Plans.

If you, the master or prototype sponsor, have any questions concerning theIRS processing of this case, please call the above telephone number. This number is only for use of the sponsor. Individual participant’s and/or adopting employers with questions concerning the plan should contact the master or prototypesponsor. The plan__ adoption agreement must include the sponsor’s address and telephone number for inquiries by adopting employers.

If you write tothe IRS regarding this plan, please provide your telephone number and the most convenient time for us to call in case we need more information. Whether you call or write, please refer to the Letter Serial number and File Folder Number shown in theheading of this letter.

You should keep this letter as a permanent record. Please notify us if you modify or discontinue sponsorship of this plan.

 

Sincerely yours,

[GRAPHIC]

Director

Employee Plans Rulings & Agreements