TOPBUILD CORP.

401(k) PLAN

Effective July 1, 2015

Page

ARTICLE 1 – PREAMBLES

SECTION 1.01

ESTABLISHMENT OF PLAN

SECTION 1.02

AMENDMENT AND RESTATEMENT OF PLAN

SECTION 1.03

SPECIAL EFFECTIVE DATES

SECTION 1.04

APPLICABLE LAW

SECTION 1.05

DEFINED TERMS

ARTICLE 2 - ELIGIBILITY AND PARTICIPATION

SECTION 2.01

ELIGIBILITY

SECTION 2.02

PARTICIPATION

SECTION 2.03

ENROLLMENT

SECTION 2.04

AUTOMATIC PROCEDURES

ARTICLE 3 - CONTRIBUTIONS AND ALLOCATIONS

SECTION 3.01

GENERAL RULES AS TO CONTRIBUTIONS AND ALLOCATIONS TO ACCOUNTS

SECTION 3.02

EMPLOYER PROFIT SHARING CONTRIBUTIONS

SECTION 3.03

BEFORE TAX EMPLOYEE CONTRIBUTIONS

SECTION 3.04

EMPLOYER MATCHING CONTRIBUTIONS

SECTION 3.05

EMPLOYEE AFTER-TAX CONTRIBUTIONS

SECTION 3.06

EMPLOYEE ROLLOVER CONTRIBUTIONS

SECTION 3.07

ALLOCABLE INCOME

SECTION 3.08

OTHER APPLICABLE RULES

ARTICLE 4 - INVESTMENT AND VALUATION OF ACCOUNTS

SECTION 4.01

INVESTMENT ELECTIONS

SECTION 4.02

VALUATIONS

SECTION 4.03

DIVERSIFICATION OF ACCOUNT INVESTMENTS IN EMPLOYER SECURITIES

ARTICLE 5 - RETIREMENT AND OTHER TERMINATION OF EMPLOYMENT

SECTION 5.01

RETIREMENT

SECTION 5.02

DISABILITY RETIREMENT

SECTION 5.03

DEATH

SECTION 5.04

OTHER TERMINATION OF EMPLOYMENT

ARTICLE 6 – DISTRIBUTION OF BENEFITS

SECTION 6.01

DISTRIBUTION UPON TERMINATION OF EMPLOYMENT

SECTION 6.02

DISTRIBUTION DUE TO HARDSHIP

SECTION 6.03

LOANS TO PARTICIPANTS

SECTION 6.04

WITHDRAWALS OF AFTER TAX EMPLOYEE CONTRIBUTIONS

SECTION 6.05

IN-SERVICE DISTRIBUTIONS

SECTION 6.06

QDROS AND DISTRIBUTIONS TO ALTERNATE PAYEES

SECTION 6.07

IN-SERVICE DISTRIBUTIONS OF ROLLOVER CONTRIBUTION ACCOUNT

ARTICLE 7 - SPECIAL PROVISIONS

SECTION 7.01

ELAPSED TIME SERVICE RULES

SECTION 7.02

TRANSFERS AND CHANGES IN EMPLOYMENT STATUS

SECTION 7.03

LIMITATIONS ON ANNUAL ALLOCATIONS TO ACCOUNTS

SECTION 7.04

TOP HEAVY PLAN RULES

SECTION 7.05

LEASED EMPLOYEES

SECTION 7.06

IMPACT OF QUALIFIED MILITARY SERVICE

ARTICLE 8 - TRUST FUND

SECTION 8.01

ESTABLISHMENT AND MAINTENANCE OF FUND

SECTION 8.02

THE TRUSTEE

SECTION 8.03

RESIGNATION OR REMOVAL OF TRUSTEE

SECTION 8.04

EXPENSES

SECTION 8.05

TAXES

SECTION 8.06

INVESTMENT MANAGER AND CUSTODIAN

ARTICLE 9 - ADMINISTRATION AND FIDUCIARIES

SECTION 9.01

PLAN ADMINISTRATION

SECTION 9.02

CLAIMS PROCEDURE

SECTION 9.03

SPECIAL RULINGS

SECTION 9.04

ALLOCATION OF FIDUCIARY DUTIES BETWEEN NAMED FIDUCIARIES

SECTION 9.05

AUTHORIZATION FOR FURTHER ALLOCATION OF FIDUCIARY DUTIES

SECTION 9.06

EMPLOYMENT OF ADVISERS

SECTION 9.07

DELEGATION TO OFFICERS OR EMPLOYEES

SECTION 9.08

BONDING

ARTICLE 10 - AMENDMENT, TERMINATION AND MERGER

SECTION 10.01

AMENDMENT OF THE PLAN

SECTION 10.02

TERMINATION OF THE PLAN

SECTION 10.03

MERGER OR CONSOLIDATION OF PLANS

SECTION 10.04

NOTICE

ARTICLE 11 - MISCELLANEOUS PROVISIONS

SECTION 11.01

PLAN SUBJECT TO APPROVAL

SECTION 11.02

PAYMENTS FOR THE BENEFIT OF PAYEE

SECTION 11.03

NON ALIENATION OF BENEFITS

SECTION 11.04

EMPLOYER'S RIGHTS

SECTION 11.05

LITIGATION

SECTION 11.06

ACTION BY COMPANY

SECTION 11.07

INDEMNIFICATION

SECTION 11.08

CONSTRUCTION

SECTION 11.09

APPLICATION OF APPENDICES

ARTICLE 12 - DEFINITIONS

SECTION 12.01

ACCOUNT

SECTION 12.02

ACCOUNTING DATE

SECTION 12.03

BENEFICIARY

SECTION 12.04

CODE

SECTION 12.05

COMPANY

SECTION 12.06

COMPENSATION

SECTION 12.07

EFFECTIVE DATE

SECTION 12.08

EMPLOYEE

SECTION 12.09

EMPLOYER

SECTION 12.10

ERISA

SECTION 12.11

5 PERCENT OWNER

SECTION 12.12

FUND

SECTION 12.13

HIGHLY-COMPENSATED EMPLOYEE

SECTION 12.14

HOUR OF SERVICE

SECTION 12.15

NON-HIGHLY COMPENSATED EMPLOYEE

SECTION 12.16

NORMAL RETIREMENT AGE AND NORMAL RETIREMENT DATE

SECTION 12.17

1-PERCENT OWNER

SECTION 12.18

PARTICIPANT

SECTION 12.19

PLAN

SECTION 12.20

PLAN ADMINISTRATOR

SECTION 12.21

PLAN YEAR

SECTION 12.22

RELATED ENTITY

SECTION 12.23

TRUSTEE

SECTION 12.24

YEAR OF SERVICE

SECTION 12.25

SPOUSE

(a) Be a salaried or hourly Employee employed on the payroll of the Company or one of the currently participating Employers (each an “Employer”) listed in the Appendices on or after the date indicated in the applicable Appendices;

(b) Not be a nonresident alien who receives no compensation from sources within the United States (within the meaning of Code Section 861(a)(3)), unless the Company specifically waives this requirement in a written instrument delivered to the Trustee and appended to the Plan; and

(c) Not be an Employee who is 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 the Employer, unless the applicable collective bargaining agreement provides, as a result of good faith bargaining by the parties concerning retirement benefits, that such Employees shall be entitled to participate in the Plan, or unless the Company otherwise directs in a written instrument submitted to the Trustee and amended to this Plan.

(a) Meaning of Participation.  Participation entitles an individual to receive a summary plan description that describes the terms of the Plan in simple language, and to obtain various other reporting and disclosure documents concerning the Plan.  A Participant also will have maintained on the books and records of the Plan’s Fund an Account in his name to which allocations may be made in accordance with Article 3.  However, mere participation in the Plan does not entitle a Participant to an ultimate benefit from the Plan; a Participant will receive a benefit only if allocations are made to his Account over his period of participation pursuant to Article 3.

(b) Commencement of Participation.  (1) An individual who has, as of the Effective Date, satisfied the eligibility and enrollment requirements set forth herein and as applied by the Plan Administrator, shall commence participation in the Plan on the Effective Date.  (2) Any other individual shall commence participation in the Plan as soon as administratively feasible following the date that he first satisfies all of the eligibility requirements of Section 2.01.

(c) Continuation of Participation.  An Employee who satisfies the eligibility requirements of Section 2.01 and who has commenced participation in accordance with paragraph (b) of this section shall continue as a Participant for every Plan Year in which he is credited with at least one Hour of Service, subject to termination of his participation as provided in paragraph (d) of this section.

(d) Termination of Participation.  Participation in the Plan shall terminate for a Participant on the later of (1) his date of termination of employment with his Employer (and all participating Employers) or (2) the date he receives from the Plan a distribution representing the

(e) Resumption of Participation.  An individual whose participation has terminated pursuant to paragraph (d) of this section shall resume participation as of the earlier of (1) his date of reemployment by a participating Employer, provided he then meets all of the eligibility requirements of Section 2.01, or (2) the date he again has an Account balance under the Plan.

(f) Waiver of Participation.  The Plan Administrator, in its sole discretion, may allow an individual (including any Employee) to waive, in writing, his right to participate in the Plan in accordance with applicable law and IRS guidelines.

(a) Meaning of Enrollment.  Subject to Section 2.04, enrollment is the process of submitting to the Plan Administrator an election to make contributions to the Plan through payroll withholding (as further described in Article 3) and of making an initial specification for the investment of those contributions.

(b) Enrollment Date.  An eligible Employee (as provided in Section 2.01) will be enrolled in the Plan on the first regular payroll date in the month following the month in which the Participant properly completes the enrollment procedures set forth by the Plan Administrator, or at such earlier date as permitted by the Plan Administrator (and consistent with applicable law).  If the enrollment procedures are not properly completed for the eligible Employee, he will be enrolled as provided in Section 2.04.

(c) Changes in Enrolled Status.  A Participant may change his enrolled status, including the elected level of his contributions and selected investments, only as provided in Articles 3 and 4.

(a) Auto-Enrollment.  An eligible Employee (as provided in Section 2.01) who fails to enroll in the Plan as provided by Section 2.03 shall be enrolled automatically.  That automatic enrollment date shall be the first regular payroll in the month following the month in which he became an eligible Employee.  Until such a Participant properly completes the enrollment process, or unless he makes an affirmative election not to make contributions, in either case in accordance with the Plan’s established procedures, the Participant will be deemed to have elected to make Employee before-tax contributions under Section 3.02 equal to 3% of his Compensation and to have selected the default investment as specified pursuant to Section 4.01 for investment of those contributions.

(b) Notice.    At least 30 days but not more than 90 days before the beginning of each Plan Year, the Plan Administrator will provide each affected Participant a comprehensive notice of his rights and obligations under this section, written in a manner calculated to be understood by the average Participant.  If an individual becomes a Participant after the 90th day before the beginning of a Plan Year and as a result does not receive the notice for that Plan Year, the notice will be provided no more than 90 days before the individual becomes a Participant as provided

(a) Application of this Article.  The provisions of this Article 3 shall apply to each Employer listed in Appendix A only to the extent specifically provided in the Appendices.

(b) Sources and Forms of Contributions.  Both the Employer and Employees may make contributions to the Plan.  Contributions of the Employer, divided into profit sharing and matching contributions, are purely discretionary and the Employer shall not be required to contribute to the Plan for any year.  Contributions by Employees may be divided into before‑tax contributions, catch-up contributions, and rollover contributions.  In addition, it is contemplated that accounts may be transferred to this Plan as a result of Plan mergers, and separate accounts shall be maintained for any such transferred amounts (including for employee after-tax contributions transferred to this Plan).  The Plan will accept direct transfers from a qualified defined contribution plan made by voluntary election pursuant to Code Section 411(d)(6)(D) by the participant or beneficiary whose account is transferred to this Plan.  Upon the occurrence of a distributable event, any such amounts transferred to this Plan shall be distributable in the form of a single sum distribution, as well as any other distribution option available under the terms of the Plan.

(c) Allocation of Contributions and Individual Accounts.  Contributions made by the Employer and by Employees shall be allocated to individual Accounts maintained on the books and records of the Fund for each Participant.  Credits to Accounts shall be made in accordance with the allocation process described in this Article 3 for contributions; credits and charges shall be made for the allocation of earnings, gains, and losses as described in Article 4; and charges shall be made for distributions made pursuant to Article 6.  The maintenance of individual accounts is only for accounting purposes, and except as provided otherwise in the Plan or as determined by the Trustee in accordance with the written powers granted to the Trustee, a segregation of the assets of the Fund to each Account shall not be required.  The fact that individual accounts are maintained shall not be construed to mean that any Participant or Beneficiary has title to any specific assets of the Fund.  Each Account may be further divided into separate sub‑accounts, as defined in Article 12 and as more particularly described in this Article 3, to receive and hold contributions having a particular characterization.

(a) Amount.  The amount of an Employer’s profit sharing contribution to the Plan, if any, for each Plan Year, shall be determined by written action of the Company and the Employer, which amount may be zero and may vary among the participating Employers as set forth in the Appendices.

(b) Payment.  The Employer’s profit sharing contribution, as determined under paragraph (a), shall be paid to the Fund not later than the due date (including extensions) for the Employer’s federal income tax return for the taxable year of the Employer with respect to which the contribution is made.

(c) Limitation.  In no event shall the Employer deduct, for federal income tax purposes, a contribution to the Fund, which, when aggregated with Employer matching contributions and Employee before-tax contributions made to the Fund, exceeds the amount deductible for the Employer’s taxable year with respect to which the contribution is made, as determined under Code Section 404.

(d) Reversion.  In no event shall any profit sharing contribution by the Employer to the Fund, or income on any such contribution, revert to the Employer, except to the extent as provided by this paragraph.  All amounts paid to the Fund pursuant to this section by the Employer shall be used and applied for the exclusive benefit of Participants and their Beneficiaries; provided that for this purpose, payment of expenses by the Fund shall be considered paid for such exclusive benefit.  Notwithstanding the foregoing or any other provision of the Plan to the contrary, a contribution made to the Plan by the Employer may be returned to the Employer if: (1) such contribution is made by the Employer by mistake of fact, provided that the contribution is returned to the Employer within one year after payment of the contribution; (2) subsequent to the Plan’s initial Effective Date, the Commissioner of Internal Revenue or his representative issues a determination letter stating that the Plan does not initially qualify under Code Section 401(a), provided that all contributions with respect to which the letter relates are returned to the Employer within one year after the date of denial of initial qualification for the Plan; or (3) a deduction claimed by the Employer on its federal income tax return under Code Section 404 for a Plan contribution is subsequently denied, in whole or in part, provided that the contribution or portion for which the deduction is denied is returned to the Employer within one year after the disallowance of the deduction.

(e) Allocation.  Subject to Section 7.03, and except as otherwise specifically provided in the Appendices, Employer profit sharing contributions made under this section shall be allocated as of the last day of the Plan Year to and among the Employer Profit Sharing Contribution Accounts of those Participants who were credited with at least one Hour of Service during the Plan Year in proportion to the Compensation of each such Participant for the Plan Year.

(f) Vesting.  A Participant’s Employer Profit Sharing Contribution Account shall become nonforfeitable in accordance with the vesting schedule adopted by his Employer and set forth in the Appendices, subject to investment gains and losses and allocable expenses.

(g) Investment.  Employer profit sharing contributions shall be invested as provided in Section 4.01.

(a) Amount.  For each Plan Year and subject to the auto-enrollment procedures of Section 2.04, a Participant may direct the Employer to make cash contributions to an Employee Before-Tax Contribution Account (which contributions are not includible in the Participant’s gross income for federal income tax purposes) in any flat dollar amount or whole percentage of his Compensation, neither exceeding 50% of his Compensation for the Plan Year (or such other percentage limitation as is set by the Appendices for Employees of any Employer, or such lower maximum percentage as determined and set from year to year by the Plan Administrator or as permitted in view of Employer contributions for the year and the limitations of Section 7.03).  A

(b) Payment.  Employee before-tax contributions directed by Participants under this section shall be made during the Plan Year by the Employer through payroll deductions and paid to the Fund under procedures established by the Plan Administrator, in a manner and within such time period as required to comply with applicable regulations under the Code and ERISA.  Except in the case of occasional, bona fide administrative considerations, Employee before-tax contributions made pursuant to a Participant’s election cannot be deposited in the Plan prior to the earlier of the Participant’s performance of services relating to the contribution, or when the compensation that is subject to the election would be available to the Participant in the absence of an election to defer.

(c) Limitations.  Employee before-tax contributions under this section shall be subject to four separate limitations, as described in this paragraph.

(1) Aggregate Limitation Based on Employer Deduction.  The Employer may direct the Plan Administrator to limit, in a nondiscriminatory manner, the Employee before-tax contributions of Participants so that the deductible limits of Code Section 404 applicable to the Employer are not exceeded for any taxable year of the Employer. 

(2) Limitation Based on Total Annual Additions.  For each limitation year, Employee before-tax contributions, when combined with other annual additions, shall not exceed the limitation described by Section 7.02.

(3) Limitation Applicable to Individual Deferrals. 

(A) Dollar Maximum.  For every calendar year, each Participant’s total Employee before-tax contributions under this Plan (and any other qualified plan maintained by the Employer) shall be limited to the dollar maximum under Code Section 402(g), as adjusted for the year in accordance with the procedures of Code Section 415(d), except to the extent the contributions represent catch-up contributions described by paragraph (h) of this section that are permitted by Code Section 414(v).  

(B) Correction Procedure.  On or before March 1 of each year, any Participant whose total Employee before-tax contributions for the taxable year of the Participant ending before such date made under this Plan (and any other qualified plan maintained by the Employer), when added to his elective deferrals

(4) Limitation Based on Annual ADP Test. Employee before-tax contributions made under this section by Participants who are Highly Compensated Employees for each Plan Year are subject to the limitation resulting from application of the following annual testing procedure:

(A) Calculation of Actual Deferral Percentage.  Each Plan Year, the Plan Administrator shall compute the:

(i) Average actual deferral percentage of all Participants who are Highly Compensated Employees and who are eligible to make Employee before-tax contributions under this section, whether or not any such contributions are made by a particular individual (“high-paid percentage”); and

(ii) Average actual deferral percentage of the remaining Participants who are eligible to make Employee before-tax contributions under this section, whether or not such contributions are made by a particular individual (“lower-paid percentage”).

(B) Actual Deferral Percentage Test.  The separate average ADPs for the two groups of Participants identified and computed above must meet one of the following ADP tests:

(i) The high-paid percentage for the current Plan Year is not more than 1.25 times the lower-paid percentage for the applicable Plan Year; or

(ii) The high-paid percentage for the current Plan Year is not more than 2.00 times the lower-paid percentage for the applicable Plan Year, and the difference between the two percentages does not exceed two percentage points.

(C) Correction Procedure for Failed ADP Test.  If, for any year, the separate ADPs for the two groups identified above fail to satisfy one of the ADP tests set forth above, or if the Plan Administrator otherwise determines that a reduction of the amount of Employee before-tax contributions is necessary in order to assure compliance with Code Section 401(k), the Plan Administrator shall reduce the Employee before-tax contributions of Highly Compensated Employees by first calculating the dollar amount of the excess Employee before-tax contribution of each affected Highly Compensated Employee in accordance with Code Section 401(k)(8)(B) and the related Treasury Regulations.  To correct the Plan’s failure to meet the ADP test, the sum of the excess Employee before-tax contributions of all affected Highly Compensated Employees (“excess contributions”) shall be distributed as follows:

(i) The Employee before-tax contributions of those Highly Compensated Employees with the highest dollar amount of such contributions shall be reduced to the Employee before-tax contribution level of the Highly Compensated Employees with the second greatest dollar contribution level;

(ii) If the dollar reduction in step (i) above is not sufficient to equal the excess contributions, then the process shall be repeated by reducing the Employee before-tax contribution level of the Highly Compensated Employees with the second greatest Employee before-tax contribution level (including those Highly Compensated Employees

(D) Alternative Correction Procedure for Failed ADP Test.  In lieu of using the correction procedure described in (C) above, the Employer may correct a failed ADP test by making a Qualified Non-Elective Contribution (“QNEC”) on behalf of all eligible Participants who are non-Highly Compensated Employees in an amount sufficient to satisfy one of the tests set forth in (B) above.  The QNEC must: (i) be made within 12 months after the end of the Plan Year of the failed ADP test; (ii) be allocated to the Account of each such Participant in the proportion that each such Participant’s Compensation for the year bears to the total Compensation of all non-Highly Compensated Employees who are Participants; (iii) be immediately vested without regard to a Participant’s age or service, (iv) distributable from the Participant’s Account only under the distribution rules of Section 6.01(d)(1)(D), without regard to Section 6.03; and (v) meet the conditions of Treasury Regulation Section 1.401(k)-2(a)(6).

(d) Reversion.  Participant before-tax Employee contributions made by the Employer shall be irrevocable, subject to paragraph (c) above and the exceptions provided in this paragraph.  All amounts paid to the Fund pursuant to this section by the Employer shall be used and applied for the exclusive benefit of Participants and their Beneficiaries; provided, that for this purpose, payment of expenses by the Fund shall be considered paid for such exclusive benefit.  Notwithstanding the foregoing or any other provision of the Plan to the contrary, a contribution made to the Plan by the Employer may be returned to the Employer if: 

(1) Such contribution is made by the Employer by mistake of fact, provided that the contribution is returned to the Employer within one year after payment of the contribution;

(2) Subsequent to the Effective Date, the Commissioner of Internal Revenue or his representative issues a determination letter stating that the Plan does not initially

(3) A deduction claimed by the Employer on its federal income tax return under Code Section 404 for a Plan contribution is subsequently denied, in whole or in part, provided that the contribution or portion for which the deduction is denied is returned to the Employer within one year after the disallowance of the deduction.

(e) Allocation.  Subject to Section 7.03, the Trustee shall allocate a contribution made pursuant to this section to the Participant’s Employee Before-Tax Contribution Account as of the Accounting Date immediately following the date the contribution was made.

(f) Vesting.  A Participant’s Employee Before-Tax Contribution Account shall be 100% nonforfeitable at all times (subject, however, to investment gains and losses and allocated expenses).

(g) Investments.  Employee before-tax contributions made by a Participant and allocated to an Employee Before-Tax Contribution Account shall be invested as directed by the Participant in accordance with Section 4.01.

(h) Catch-Up Contributions.  Any Participant who is eligible to make Employee before-tax contributions under this section, has attained age 50 before the close of the Plan Year, and has contributed the maximum amount permitted by the limitations of paragraph (c) above for the year, shall be eligible to make catch-up contributions in accordance with, and subject to the limitations of, Code Section 414(v).  Such catch-up contributions shall be subject to the same vesting, investment and distribution rules as Employee before-tax contributions made under the foregoing paragraphs of this section, but they shall not be eligible for Employer matching contributions under Section 3.04 nor shall they be taken into account for purposes of the provisions of the Plan implementing the required limitations of Code Sections 402(g) and 415.  Furthermore, the Plan shall not be treated as failing to satisfy its specific provisions implementing the requirements of Code Section 401(k)(3), 401(k)(11), 401(k)(12), 410(b) or 416, as applicable, by reason of any Participant making such catch-up contributions.

(a) Amount.  For each Plan Year, the Employer may contribute an amount to be determined from time to time by written action of the Company and the Employer, which amount may be zero and may vary among the participating Employers as set forth in the Appendices.

(b) Payment.  The Employer’s matching contribution, as determined under paragraph (a), shall be paid to the Fund periodically throughout each year, as determined by the Company and Employer in the manner described in paragraph (a), but in no event later than the due date (including extensions) for the Employer’s federal income tax return for the taxable year of the Employer corresponding to the Plan Year to which the matching contribution relates.

(c) Limitations.  Employer matching contributions under this section shall be subject to three separate limitations, as described in this paragraph.

(1) Limitation Based on Employer Deduction.  The Employer may direct the Plan Administrator to limit, in a nondiscriminatory manner, Employer matching contributions so that for federal income tax purposes, Employer is obligated to make matching contributions that, when aggregated with Employee before-tax contributions and Employer profit sharing contributions made to the Fund, exceed the amount deductible for the Employer’s taxable year with respect to which the contribution is made, as determined under Code Section 404.  The foregoing limitation shall not prevent the Employer from contributing amounts that are not deductible, and no excise tax under Code Section 4972 shall apply to the extent that total contributions do not exceed the sum of Employee before-tax contributions and Employer matching contributions as otherwise determined under the Plan. 

(2) Limitation Based on Total Annual Additions.  For each limitation year, Employer matching contributions, when combined with other annual additions, shall not exceed the limitation described by Section 7.03.

(3) Limitation Based on Annual ACP Test.  Employer matching contributions made under this section on behalf of Participants who are Highly Compensated Employees are subject to the limitation resulting from application of the following annual testing procedure:

(A) Actual Contribution Percentage Test.  With respect to each Plan Year, the Plan Administrator shall compute the:

(i) Average actual contribution percentage of all Participants who are Highly Compensated Employees and who are eligible to make before-tax contributions under Section 3.03, whether or not any such contributions are made by a particular individual (“high-paid percentage”); and

(ii) Average actual contribution percentage of the remaining Participants who are eligible to make before-tax contributions under Section 3.03, whether or not such contributions are made by a particular individual (“lower-paid percentage”).

(B) Correction Procedure for Failed ACP Test.  If the separate average ACPs for the two groups identified above fail to satisfy one of the ACP tests, or if the Plan Administrator otherwise determines that a reduction of the amount of Employer matching contributions is necessary in order to assure compliance with Code Section 401(m), the Plan Administrator shall reduce the Employer matching contributions of Highly Compensated Employees by first calculating the dollar amount of the excess matching contributions of each affected Highly Compensated Employee in accordance with Code Section 401(m)(6)(B) and the related Treasury Regulations.  To correct the Plan’s failure to meet the ACP test, the sum of the excess Employer matching contributions of all affected Highly Compensated Employees (“excess aggregate contributions”) shall be distributed as follows:

(i) The Employer matching contributions for those Highly Compensated Employees with the highest dollar amount of such contributions shall be reduced to the Employer matching contribution level of the Highly Compensated Employees with the second greatest dollar contribution level;

(ii) If the dollar reduction in step (i) above is not sufficient to equal the excess aggregate contributions, then the process shall be repeated by reducing the Employer matching contribution level of the

(C) Alternative Correction Procedure for Failed ACP Test.  In lieu of using the correction procedure described in (B) above, the Employer may correct a failed ACP test by making a Qualified Non-Elective Contribution (“QNEC”) on behalf of all eligible Participants who are non-Highly Compensated Employees in an amount sufficient to satisfy one of the tests set forth in Section 3.03(c)(4)(B) above.  The QNEC must: (i) be made within 12 months after the end of the Plan Year of the failed ACP test; (ii) be allocated to the Account of each such Participant in the proportion that each such Participant’s Compensation for the year bears to the total Compensation of all non-Highly Compensated Employees who are Participants;  (iii) be immediately vested without regard to a Participant’s age or service; (iv) be distributable from the Participant’s Account only under the distribution rules of Section 6.01(d)(4)(D), without regard to Section 6.02; and (v) meet the conditions of Treasury Regulation Section 1.401(m)-2(a)(6).

(d) Reversion.  Employer matching contributions shall be irrevocable, subject to paragraph (c) of this section and to the same exceptions as provided in Section 3.02(d).

(e) Allocation.  Subject to Section 7.03, Employer matching contributions made under this section shall be allocated as of each Accounting Date within the Plan Year to and among the Employer Matching Contribution Accounts of those Participants who elected to make and who were allocated Employee before-tax contributions, at such rate, as is determined by written action of the Company and the Employer, for the year of each such Participants’ Employee before-tax contributions, up to such maximum allocation as a percent of the Participant’s Compensation for the Plan Year, as is determined from time to time by written action of the Company and the Employer.

(f) Vesting.  A Participant’s Employer Matching Contribution Account shall become nonforfeitable in accordance with the vesting schedule adopted by his Employer and set forth in the Appendices, subject to investment gains and losses and allocable expenses.

(g) Investment.  Employer matching contributions shall be invested as provided in Section 4.01.

(a) Amount.   No Employee After‑Tax Employee Contributions are permitted under this Plan. 

(b) Reversion.  Any previous After‑tax Employee contributions are irrevocable and in no event may they revert to the Employer.

(c) Vesting.  A Participant’s After‑Tax Employee Contribution Account shall be 100% nonforfeitable at all times, subject to investment gains and losses and allocable expenses.

(d) Investment.  After‑tax Employee contributions held in a Participant’s After‑Tax Employee Contribution Account shall be invested as provided in Section 4.01.

(a) Eligibility and Amount.  Any Employee may pay to the Fund, or arrange for the direct rollover to the Fund from another eligible retirement plan, a contribution of an amount that the Employee represents, and the Plan Administrator reasonably concludes, is an eligible rollover distribution qualifying for rollover treatment under Code Section 402(c), 403(a)(4), 403(b)(8), 408(d)(3) or 457(b)(16).

(b) Payment.  Except in the case of a direct rollover, an Employee’s rollover contribution to the Plan must be made to the Fund not later than the 60th day after the day on which he received the distribution that is eligible for rollover, unless the Employee has obtained a waiver of that time requirement from the Internal Revenue Service pursuant to Code Section 402(c)(3)(B), 408(d)(3)(I), or corresponding provisions of Section 403 or 457, as applicable.

(c) Limitation.  An Employee may not roll over to the Plan (1)a contribution which exceeds in value the amount received (or the proceeds of the sale of property received) in a distribution described in paragraph (a), (2) any amounts representing after-tax Employee contributions made under any other plan and in which the Employee has other than a zero income tax basis, unless the Plan Administrator agrees to separately account for such amounts, including separately accounting for the portion of the rollover which is includible in gross income and the portion which is not so includible, (3) any amount representing a lifetime annuity payment or a periodic distribution over a period of ten years or more as described in Code Section 402(c)(4)(A), (4) any amount that is a required distribution under Code Section 401(a)(9), (5) any amount the Employee has received from a plan in his capacity as a non-spouse beneficiary of a deceased individual participant in that plan, or (6) any hardship distribution described in Code Section 401(k)(2)(B)(i)(IV).

(d)

Reversion.  Rollover contributions may in no event revert to the Company or the Employer.

(e) Allocation.  The Trustee shall allocate a contribution made pursuant to this section to an Employee Rollover Contribution Account as of the Accounting Date immediately following the date the contribution was made, even if the Employee has not yet become a Participant under the Plan for other purposes.

(f) Vesting.  A Participant’s Employee Rollover Contribution Account shall be 100% nonforfeitable at all times, subject to investment gains and losses and allocable expenses.

(g) Investment.  Employee rollover contributions shall be invested as provided in Section 4.01.

(a) General.    Whenever the Plan Administrator directs the Trustee to refund an excess amount to a Participant in accordance with one of the foregoing provisions of this Article 3, the Trustee also shall refund to the Participant the income allocable to the excess amount as determined under this section.  Such income shall be the net earnings, gains, losses and expenses, computed and allocated in accordance with the general procedures for allocating income to Accounts as specified by Article 4, or by such other procedures as are adopted by the Trustee that are reasonable and uniformly applied to all Participants and to all refunded excess amounts, for the period starting with the date or dates within the applicable year on which the excess or each part thereof was contributed to the Plan, through the end of that year, and where specifically provided by paragraph (b) of this section, also for the so-called “gap period.”

(b) Gap Period Income.  For purposes of this section, the “gap period” refers to the time between the first day of the Plan Year following the year in which the excess amount was contributed to the Plan and a date selected by the Trustee which is within no more than seven days prior to the date of the refund of the excess amount to the Participant. The Plan Administrator shall compute gap period income in accordance with one of the method prescribed by Treasury Regulation Section 1.401(k)-2(b)(2)(ii) and direct the Trustee to distribute it in accordance with the following:

(1) Excess Deferrals. Excess deferrals are Employee before-tax contributions for any calendar year that exceed the limitation of Code Section 402(g), determined in accordance with Section 3.03(c)(3).  The Trustee shall include gap period income in the refund to each affected Participant of any excess deferral made in Plan Years ending on or before December 31, 2008, but not with respect to the refund of an excess deferral made in any Plan Year beginning on or after January 1, 2009.

(2) Excess Contributions and Excess Aggregate Contributions.  Excess contributions are Employee before-tax contributions made by Participants who are Highly Compensated Employees that cause a failure of the ADP test described in Section 3.03(c)(4) for a given Plan Year.  Excess aggregate contributions are Employer matching contributions (or Employee after-tax contributions) made on behalf of (or by) Participants

(c) Reporting.  An excess amount, including allocable income, to the extent refunded to a Participant, shall be reported by the Trustee to the Internal Revenue Service and the Participant on Form 1099-R for the taxable year or years for which the Participant is required to include the excess amount and allocable income in his gross income for federal income tax purposes. 

(a) Investment Options.  A Participant may select from among such investments as are made available from time to time by the Trustee at the direction of the Plan Administrator.  A Participant may invest all or part of his Account in any one or more of the funds so established, but only in such percentage increments of the value of such Account as are established from time to time by the Plan Administrator.  In the absence of an election, a Participant’s Account shall be invested in the Plan’s qualified default investment alternative (as defined in ERISA Section 404(c)(5)) selected from time to time by the Plan Administrator and communicated to Participants.

(b) Method of Election.  Each Participant shall indicate his election for investment of his Account by contacting the Trustee by such means as permitted by the Trustee.

(c) Frequency of Election.  With respect to future contributions, a Participant may make a new designation with such frequency as may be determined by the Trustee and the Plan Administrator.  Any such new designation shall become effective in accordance with procedures established by the Trustee and the Plan Administrator.  In the absence of a new election, future contributions shall be invested in the available funds in the same proportions as specified in the Participant’s most recent election.  With respect to his existing Account balance, a Participant may change his election and request a transfer of monies among the available funds with such frequency as may be determined by the Trustee and the Plan Administrator, in accordance with procedures established by the Trustee and the Plan Administrator.

(d) ERISA Section 404(c) Compliance.  The Plan and its operation are intended to comply with the provisions of ERISA Section 404(c) and the related regulations applicable to participant directed investments.  The Plan Administrator may appoint one or more fiduciaries to assist in compliance with these provisions, which fiduciary or fiduciaries shall generate and disseminate to Participants the information required by the regulations.  Except as provided by ERISA Section 404(c) and the related regulations, the Trustee shall have no fiduciary responsibility with respect to the selection of the Plan’s investment funds, and not the Company, any Employer, the Plan Administrator, the Trustee, or any other fiduciary with respect to the Plan, shall have any liability in connection with any losses that are the direct and necessary result of the investment choices made by Participants.  The Trustee’s only responsibility shall be with respect to the individual investments of any investment funds that are offered and operated by the Trustee and made available for Participant investments under the Plan, and which are not controlled by an independent investment manager.  The only responsibility of the Plan Administrator shall be to review periodically the performance of the investment funds made available under the Plan and to change the available funds offered when appropriate.  The Trustee is the named fiduciary who is responsible for ensuring that the procedures established to provide for the confidentiality of information relating to the purchase, holding and sale of Company securities, and the exercise of voting, tender and similar rights, by Participants and Beneficiaries are sufficient to safeguard the confidentiality of such information.  A Participant directing investment of his Account pursuant to this section shall be entitled only to those earnings and investment gains or losses as are experienced by the portion of his Account affected by his direction (less any allocable expense incurred in carrying out the Participant’s investment

(a) Frequency of Valuations.  The Plan Administrator shall direct the Trustee to value the Fund at least quarterly on regular Accounting Dates specified by the Plan Administrator.  However, the Plan Administrator also may direct the Trustee to establish interim valuations, including daily valuations, on other regular Accounting Dates during the year.  The Plan Administrator shall provide Participants with statements reporting the valuation of Accounts at least quarterly.

(b) Valuation at Fair Market Value.  At every Accounting Date, all assets shall be valued by the Trustee on the basis of fair market value.

(c) Adjustment for Earnings, Gains and Losses.  Each Participant’s Account shall be adjusted as of each Accounting Date for earnings, gains and losses on the investments of that Account, with such adjustment being determined by an allocation of aggregate earnings, gains, and losses of the respective funds in proportion to the value of each Participant’s Account invested in each fund as of the immediately preceding Accounting Date, but taking into account, in a manner determined to be equitable by the Trustee (with the consent of the Plan Administrator), any contributions to or distributions from Accounts since the immediately preceding Accounting Date.

(d) Allocation of Contributions.  Finally after the valuation and adjustment procedures of paragraphs (b) and (c) of this section, contributions made since the last Accounting Date shall be allocated to the respective Accounts of Participants in accordance with the procedures specified in Article 3.

(a) Diversification Election.  Notwithstanding any other provision of the Plan but subject to the limitations of paragraph (b), if any portion of the Account of an eligible individual is invested in publicly-traded Employer securities, then that individual may elect to direct the Plan to divest any such securities and to reinvest an equivalent amount in other investment options that satisfy the requirements of paragraph (c).    The election to divest and reinvest shall be afforded to eligible individuals at reasonable opportunities in accordance with procedures established by the Plan Administrator, but not less frequently than quarterly. The procedures established by the Plan Administrator shall not impose restrictions or conditions on the investment of publicly-traded Employer securities that are not imposed on other investments available under the Plan, other than restrictions or conditions imposed by applicable of securities laws or permitted by IRS Notice 2006-107 or other guidance.

(b) Alternative Investment Options.  Pursuant to direction of the Plan Administrator, the Trustee shall provide under Section 4.01 at least three alternative investment options (other than Employer securities) into which proceeds from the divestment of Employer securities directed by a Participant pursuant to this section may be invested.  Each such option must be diversified and have materially different risk and return characteristics.

(c) Special Definitions.  For purposes of this section, the following terms shall have the meanings indicated:

(1) “Eligible individual” means a Participant, an alternated payee described by Section 6.06, or a Beneficiary of a deceased Participant.

(2) “Employer security” has the meaning prescribed by ERISA Section 407(d)(1).

(3) “Publicly traded Employer securities” means Employer securities that are readily tradable on an established securities market.

(a)

Time and Manner of Distribution.

(1) Normal Distribution Method. Following a Participant’s retirement, disability, death or other termination of employment in accordance with Article 5, and after timely written application has been made with the Plan Administrator, under the method required by the Plan Administrator, there shall be distributed to the Participant, or to his Beneficiary in the case of the Participant’s death, the Participant’s entire nonforfeitable Account balance as valued on the Accounting Date immediately following the date of such separation from employment, plus any amounts credited to his Account subsequent to such Accounting Date.  Such distribution shall be made in a lump sum, to be paid as soon as practicable after the Participant’s separation from employment and the Plan Administrator’s receipt of the Participant’s (or Beneficiary’s) application.

(2) Optional Distribution Methods. Notwithstanding the foregoing, a Participant who has separated from employment may elect, pursuant to rules established by the Plan Administrator and subject to all other applicable provisions of the Plan:

(A) To defer such lump sum distribution to any subsequent date;

(B) If the nonforfeitable Account balance exceeds $5,000 (or the other applicable dollar limitation of Code Section 411(a)(11)), to receive distributions in annual installment payments for a specified number of years (not in excess of five years), with the unpaid balance at the end of each Plan Year credited or charged, as the case may be, with any earnings, gains, losses and expenses experienced on such unpaid balance, and in the event of the Participant’s (or Beneficiary’s) death prior to complete distribution of the nonforfeitable portion of the Account, any unpaid balance shall be paid to the Participant’s Beneficiary (or next designated Beneficiary in the case of the death of the prior Beneficiary), in a single lump sum payment or in annual installments over the remainder of the selected term, as the Beneficiary may elect in accordance with the provisions of this article;

(i) A trust that is exempt under Code Section 501(a) and maintained in accordance with a plan described in Code Section 401(a);

(ii) An annuity plan described in Code Section 403(a);

(iii) An annuity contract described in Code Section 403(b);

(iv) An eligible deferred compensation plan described in Code Section 457(b) that is maintained by an eligible employer described in Code Section 457(e)(1)(A);

(v) An individual retirement account (“IRA”) as described in Code Section 408(a) or an individual retirement annuity as described in Code Section 408(b) (other than an endowment contract), including after December 31, 2007 a Roth IRA described in Code Section 408A(b), provided that for distributions made prior to January 1, 2010, the Participant does not have modified adjusted gross income exceeding $100,000 and, if married, does not file a separate federal income tax return from his spouse; or

(D)

Any additional option available as specified in the Appendices.

(3) Accelerated Payment.  Notwithstanding the election of an optional method of distribution under part (2), but subject to the rules in part (1), a Participant may elect, at any time after separation from employment, by instruction delivered to the Plan Administrator, under the method required by the Plan Administrator, to accelerate payments, to receive a single lump sum payment of any remaining nonforfeitable balance of his Account, or to effect a direct rollover.

(4) Payments after Death.  If a Participant (or Beneficiary) entitled to receive a distribution under this Section 6.01 should die prior to the time he has received the full distribution to which he is entitled, then the nonforfeitable amount credited to his Account as of the Accounting Date coincident with or immediately following his date of death shall be distributed to the deceased Participant’s Beneficiary, (or to the estate of the Beneficiary in the case of the Beneficiary’s death).  Provided, however, that a Beneficiary may elect a direct rollover in accordance with paragraph (2)(C), although a Beneficiary who is not the surviving spouse or an alternate payee of the Participant may make such a rollover only to an individual retirement account or annuity titled in the name of the decedent for the benefit of the Beneficiary.

(b) Notice of Distribution Options.  Each Participant (or in the case of the death of a Participant, each Beneficiary) entitled to receive benefits under the Plan shall be notified by the Plan Administrator of the distribution options available.  The Plan Administrator shall provide with such notification either (1) a form on which the Participant (or Beneficiary) may apply for benefits and elect a distribution option, or (2) instructions regarding how to do so by telephone, facsimile, internet or other electronic means.  Such notice shall be furnished not more than 180 days and not fewer than 30 days prior to the date of scheduled distribution, in accordance with Treasury Regulation Section 1.411(a)‑11(c), and it shall clearly inform the Participant (or Beneficiary) of the right to a period of at least 30 days after receiving the notice to consider the decision whether or not to elect a distribution and, if applicable, a particular distribution option.  However, distribution may be made or commence fewer than 30 days (but not less than 8 days in the case of an annuity distribution covered by the rules of Appendix C) after the notice is given, provided that the Participant (or Beneficiary), after receiving the notice, affirmatively elects a particular distribution option and subject to any other applicable restrictions of the Plan.  Any notice issued pursuant to this paragraph shall include a description of a Participant’s right, if any, to defer receipt of a distribution, the consequences of failing to defer receipt of the distribution and the investment options available under the Plan (including applicable fees) that will be available if the Participant defers distribution, as well as a reference to the portion of the summary plan description containing any special rules that might affect materially a Participant’s decision to defer.

(c) Election.  Subject to paragraph (b) above, to paragraph (d) below and the rules of Appendix C, each Participant shall be entitled to elect, within 180 days prior to the commencement of benefits, the distribution option by which the nonforfeitable portion of his Account shall be distributed and the date on which payments should commence or be made.  In the case of the death of a Participant, and subject to the restrictions in paragraph (d) and Appendix C, the Participant’s Beneficiary shall be entitled to elect, within 180 days prior to the elected commencement of benefits, that Beneficiary’s election as to the form and date of distribution of the deceased Participant’s nonforfeitable Account balance.  In the case of an election by the Participant or the deceased Participant’s Beneficiary, the foregoing elections shall be made either (1) on a form prescribed by and filed with the Plan Administrator or (2) in accordance with procedures established by the Plan Administrator by telephone, facsimile, internet or other electronic means.  The Plan Administrator, upon receipt of the elections made pursuant to this section, shall direct the Trustee as to the time and manner of distribution.

(d) Restrictions.  Distributions under this Article 6 shall be subject to the following restrictions where applicable:

(1) Restrictions on Direct Rollovers. A Participant (or Beneficiary) may elect only one distribution option, except that where a direct rollover of less than the full nonforfeitable balance of the Account is elected pursuant to paragraph (a)(2)(C) above, another option for distribution of the remaining balance may be made.  A Participant (or Beneficiary) may elect a partial direct rollover only if the amount to be rolled over is at

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

(B) Any distribution to the extent such distribution is required under Code Section 401(a)(9); or

(C) Any distribution which is made upon hardship of the Participant.

(2) Cash Outs.  Notwithstanding the Participant’s (or Beneficiary’s) election to the contrary, if the nonforfeitable Account balance at the time of the distribution does not exceed $1,000, then the Plan Administrator shall make an immediate lump sum distribution to the Participant, or in the case of the Participant’s death, to the Participant’s Beneficiary, unless the Participant (or Beneficiary) timely elects, for a distribution exceeding $200, a direct rollover  under Section 6.02(c)(3).  No such distribution may be made, however, after the starting date of the Participant’s benefit without the consent of the Participant’s Beneficiary; the consent of a Beneficiary who is the participant’s surviving spouse must be in writing, clearly indicating the spouse’s consent and acknowledging its effect, with the spouse’s signature witnessed by a notary public.

(3) Latest Distribution Date and Required Minimum Distributions.  All distributions under the Plan shall be made in accordance with the required minimum distribution rules of Code Section 401(a)(9) and Treasury Regulation Sections 1.401(a)(9)-2 through 1.401(a)(9)-9, including the incidental death benefit requirement of

(A) Time and Manner of Distribution.  Each Participant’s entire Account must be distributed to the Participant, or begin to be distributed, no later than April 1 of the calendar year following the calendar year in which the Participant reaches age 70½, or in the case of a Participant other than a 5-percent owner, in which he retires, if later.  For this purpose, a 5-percent owner is a person who owns (or who is considered as owning within the meaning of Code Section 318) more than 5% of the outstanding stock of the Employer or stock possessing more than 5% of the total combined voting power of all stock of the Employer.  If the Participant dies before the date distributions are considered to have begun, the Participant’s Account must be distributed, or begin to be distributed, no later than as follows:

(i) If the Participant’s surviving spouse is the Participant’s sole designated beneficiary, then distributions to the surviving spouse must 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, if he had survived, would have attained age 70½, if later;

(ii) If the Participant’s surviving spouse is not the Participant’s sole designated beneficiary, then distributions to the designated beneficiary must begin by December 31 of the calendar year immediately following the calendar year in which the Participant died;

(iii) 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 Account must be distributed by December 31 of the calendar year containing the fifth anniversary of the Participant’s death; or

(iv) If the Participant’s surviving spouse is the Participant’s sole designated beneficiary and the surviving spouse dies after the Participant but before distributions to the surviving spouse have begun, this part (A) (other than (i) above) will apply as if the surviving spouse were the Participant.

(B) Required Minimum Distributions during Participant’s Lifetime.  During the Participant’s lifetime, the minimum amount that must be distributed for each distribution calendar year is the lesser of the quotient obtained by dividing the Participant’s Account balance by the distribution period in the Uniform Lifetime Table set forth in Treasury Regulation Section 1.401(a)(9)-9, using the Participant’s age as of the Participant’s birthday in the distribution calendar year, or if the Participant’s sole designated Beneficiary for the distribution calendar year is the Participant’s spouse, the quotient obtained by dividing the Participant’s Account balance by the number in the Joint and Last Survivor Table set forth in Treasury Regulation Section 1.401(a)(9)-9, using the Participant’s and spouse’s attained ages as of the Participant’s and spouse’s birthdays in the distribution calendar year.  Such required minimum distributions will be determined under this part (B) beginning with the first distribution calendar year and up to and including the distribution calendar year that includes the Participant’s date of death.

(C) Required Minimum Distributions after Participant’s Death.  If the Participant dies on or after the date distributions have begun and there is a designated Beneficiary, the minimum amount that will be distributed for each distribution calendar year after the year of the Participant’s death is the quotient obtained by dividing the Participant’s Account balance by the longer of the remaining life expectancy of the Participant or the remaining life expectancy of the Participant’s designated Beneficiary, determined as follows:

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

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

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

(i) “Account balance” means the balance of the Participant’s (or Beneficiary’s) Account as of the last Accounting Date in the calendar year immediately preceding the distribution calendar year (valuation calendar year), increased by the amount of any contributions made and allocated or forfeitures allocated to the Account as of dates in the valuation calendar year after the Accounting Date and decreased by distributions made in the valuation calendar year after the Accounting Date.  The account balance for the valuation calendar year includes any amounts rolled over or transferred to the Plan either in the valuation calendar year or in the distribution calendar year if distributed or transferred in the valuation calendar year.

(ii) “Designated beneficiary” means the Participant’s Beneficiary named pursuant to Section 6.03 to receive any undistributed balance of the Participant’s Account upon death of the Participant and who is described as the designated beneficiary under Code Section 401(a)(9) and Treasury Regulation Section 1.401(a)(9)-1, Q&A-4.

(iii) “Distribution calendar year” means a calendar year for which a minimum distribution is required.  For distributions beginning before the Participant’s death, the first distribution calendar year is the calendar year immediately preceding the calendar year which contains the Participant’s required beginning date.  For distributions beginning after the Participant’s death, the first distribution calendar year is the calendar year in which distributions are required to begin under part (3)(A)(ii) above.  The required minimum distribution for the Participant’s first distribution calendar year will be made on or before the Participant’s required beginning date.  The required minimum distribution for other distribution calendar years, including the required minimum distribution for the distribution calendar year in which the Participant’s required beginning date occurs, will be made on or before December 31 of that distribution calendar year.

(iv) “Life expectancy” means life expectancy as computed by using the applicable table in Treasury Regulation Section 1.401(a)(9)-9.

(v) “Required beginning date” means the date by which the Participant’s Account must be distributed in full or by which distributions must at least begin, as determined by the rules of part (A) above.     

(4) Overriding Rules.  Unless the Participant (or Beneficiary) requests accelerated distribution and the Plan Administrator and the Trustee each agrees to shorter periods, no distribution will commence or be made prior to the latest of:

(A) 60 days following the date on which the Account is valued for distribution;

(B) 60 days following the date the Participant’s (or Beneficiary’s) election is received by the Plan Administrator; 

(C) 30 days following the Trustee’s receipt of the Plan Administrator’s direction as to time and manner of distribution; or

(D) Except in the case of a hardship distribution under Section 6.02 or an elected distribution from a Participant’s Rollover Account, the first to occur of (i) the Participant’s retirement, death, disability, severance from service or attainment of age 59½, (ii) the termination of the Plan pursuant to Section 10.02 without establishment of a successor plan, (iii) the date of sale by the Employer of substantially all of its assets to a corporation in whose employment the Participant continues, or (iv) the date of sale by the Employer of a subsidiary in whose employment the Participant continues, except that a distribution in connection with a transaction or employment change transfer, described in Treasury Regulation Section 1.411(d)-4, Q&A 3, shall be permitted. 

(5) Directed Distributions.  Subject to the foregoing rules, in any case where a Participant (or Beneficiary) fails to provide proper instructions to the Plan Administrator for distribution of the Participant’s Account prior to the date when distributions must commence by law, the Plan Administrator may direct the Trustee to make payments to the Participant (or Beneficiary) in accordance with a method of distribution chosen by the Plan Administrator.

(a) Withdrawal Procedure.  A Participant may apply for a distribution because of a hardship (as defined in paragraph (b) below) by filing an application in accordance with procedures established by the Plan Administrator.  Except as provided otherwise in the Appendices, a hardship distribution may be made only from the Participant’s Employee before-tax contribution Account and the amount of such distribution shall be limited to the least of: (1) the amount which the Plan Administrator determines is required to relieve the financial need caused by the hardship, including any amount necessary to pay applicable federal, state and local taxes or penalties reasonably anticipated to result from the distribution; (2) the Participant’s Employee before-tax contribution Account balance, including the accumulated earnings thereon, under the Plan as of December 31, 1988, if any, plus the Participant’s cumulative total of Employee before-tax contributions to the Plan on and after January 1, 1989; or (3) the Participant’s current Employee before-tax contribution Account balance.

(b) Hardship Definition.  A hardship shall be considered to exist only if (1) the Participant has an immediate and heavy financial need for the funds, and (2) the hardship distribution requested is necessary to satisfy such financial need.

(c) Financial Need.  Requirement (1) of paragraph (b) shall be deemed satisfied where the requested distribution is on account of:

(1) Expenses for (or necessary to obtain) medical care that would be deductible under Code Section 213(d) (determined without regard to whether the expenses exceed 7.5% of adjusted gross income);

(2) Costs directly related to the purchase of a principal residence for the Employee (excluding mortgage payments);

(3) Payment of tuition, related educational fees, and room and board expenses, for up to the next twelve (12) months of post‑secondary education for the Employee, the Employee’s spouse, children, or dependents (as defined in Code Section 152, and, without regard to Code Section 152(b)(1), (b)(2), and (d)(1)(B));

(4) Payments necessary to prevent the eviction of the Employee from the Employee’s principal residence or foreclosure on the mortgage on that residence;

(5) Payments for burial or funeral expenses for the Employee’s deceased parent, spouse, children or dependents (as defined in Code Section 152, and, without regard to Code Section 152(d)(1)(B));

(6) Expenses for the repair of damage to the Employee’s principal residence that would qualify for the casualty deduction under Code Section 165 (determined without regard to whether the loss exceeds 10% of adjusted gross income); or

(7) Such other conditions that the Plan Administrator finds justify an immediate and heavy financial need under Treasury Regulation Section 1.401(k)-1(d)(3)(iii)(B).

(1) The Participant already has obtained all distributions (other than hardship distributions) and all nontaxable loans that currently are available under all plans maintained by his Employer based on his current credit situation; and

(2) The Participant agrees, in writing, to suspend all before‑tax and any after‑tax contributions under this Plan and any other plan of his Employer for a period of six months after receipt of the hardship distribution.

(a) General Rules.  In addition to the powers granted under Article 9, the Plan Administrator shall have the power to establish a loan program and to direct the Trustee to make loans to Participants from the nonforfeitable portion of their Accounts.  Application by a Participant to borrow money shall be made by such means, written or electronic, as prescribed by the Plan Administrator.  If, after appropriate investigation, and in accordance with procedures prescribed by the Plan Administrator, the loan application is approved, there shall be withdrawn from the nonforfeitable portion of the Participant’s Account and disbursed to the Participant, by check or electronic transfer of funds, the amount requested and approved, but only upon the following terms and conditions:

(1) The loan shall be disbursed only in whole increments of $100, with a minimum loan of $1,000;

(2) The loan shall be evidenced by a promissory note, in a form prescribed by the Plan Administrator that shall be signed by the Participant, and if the Participant is married at the time the loan proceeds are disbursed and the loan proceeds are disbursed from an Account which is subject to a Qualified Joint and Survivor Annuity, also shall be authorized by signature of the Participant’s spouse which acknowledges that the Participant’s Account is being pledged as collateral for the loan and may be used to repay the loan in the event of default;

(3) The loan shall be for a principal amount which, when added to the outstanding balance of any other loan or loans of the Participant from the Plan and from

(4) The loan shall bear interest at a rate established from time to time by the Plan Administrator that is comparable to the rate charged by commercial lenders on loans of a similar character, that may be tied by formula to a regularly published rate, and that will remain fixed for the term of the loan;

(5) The loan shall be for a prescribed term of no longer than 60 months; however, the prescribed term may be for a period greater than 60 months but not greater than 180 months for a loan used to acquire any dwelling unit which within a reasonable period of time is to be used (determined at the time the loan is made) as the principal residence of the Participant, in either case with no penalty for prepayment;

(6) The loan shall provide for specific terms of repayment, in substantially equal installments of principal and interest, made at least quarterly, which terms the Plan Administrator may request the Employer to implement by appropriate withholding from the Participant’s regular salary or wages to the extent permitted by law;

(7) The loan shall be secured, notwithstanding any other provision of the Plan to the contrary, by a pledge of 50% of the Participant’s nonforfeitable Account, as of the date of the loan, or if the Plan Administrator otherwise determines to be appropriate, shall be secured by other collateral comparable to that customarily required by local financial institutions, and by an irrevocable wage assignment if permitted by local law;

(8) The loan proceeds need not be disbursed to the Participant by the Plan Administrator prior to the expiration of 45 days from the date of receipt by the Plan Administrator of the Participant’s loan application;

(9) The loan shall be subject to the ability of the Trustee to liquidate prior investments directed by the Participant for his Account, and all costs associated with making the loan; and

(10) No more than one loan from this Plan may be outstanding to any one Participant at any time unless more than one loan is specifically provided for in the Plan’s Loan Rules.

(b) Other Rules.  All loans under the Plan shall be made strictly in accordance with the provisions of this section, the specific participant loan provisions described in Section 2550.408b‑1 of the Department of Labor Rules and Regulations for Fiduciary Responsibility and any additional rules which may be set forth by the Plan Administrator.  Loans shall be available to all Participants on a reasonably equitable basis in a uniform and nondiscriminatory manner, although the Plan Administrator may make distinctions on the basis of credit worthiness of the

(c) Treatment of Loans and Repayments.  For purposes of the allocation of earnings, gains and losses of the Fund and the determination of the balance of a Participant’s Account on any Accounting Date under Article 4, a loan under this section shall be treated as a nontaxable withdrawal from the Participant’s Account, on the date the loan proceeds are disbursed, to the extent of the principal amount borrowed, and each payment on the loan shall be treated as an addition to the Account, on the date received, to the extent such payment constitutes repaid principal.  Interest paid by a Participant on any loan shall be credited directly to the Account of that Participant. 

(d) Default.  In the event of a Participant’s default in payment of a loan made in accordance with this section, the Employer shall, upon the direction of the Plan Administrator, to the extent and at the time permitted by law, deduct the amount of the loan that is in default (and any unpaid interest due) from the Participant’s regular salary or wages (including any bonus or other payments) and pay such deducted amount to the Trustee.  In addition, the Plan Administrator may direct the Trustee to take any other action which may be necessary or appropriate to permit the Plan Administrator to enforce collection of the unpaid loan.  Upon the occurrence of any event permitting a distribution from the Plan, any balance of the loan which still remains unpaid (including any unpaid interest due) and attributable to an Account from which distribution is permitted, shall be recharacterized as a distribution and reported by the Trustee as taxable income to the Participant.  For purposes of this paragraph, a loan shall be deemed to be in default upon the Participant’s failure to timely make any scheduled repayment of principal or interest and expiration of any reasonable grace period that may be permitted by the Plan Administrator and allowed by law.  The Trustee, at the direction of the Plan Administrator, shall report the amount of any defaulted loan as a taxable distribution to the Participant at the time and to the extent required by law. 

(a) General Rule.  Subject to the special withdrawal election in paragraph (b) of this section, the balance of a Participant’s After‑Tax Employee Contribution Account shall be distributed in the manner provided by Section 6.01.

(b) Special Election.  At any time, whether during employment or after retirement, disability or other termination of employment, a Participant may make an election, in such manner as the Plan Administrator prescribes, to withdraw all or any portion of the balance of his After‑Tax Employee Contribution Account balance, which shall be distributed only in the form of a single sum payment.  Any such election shall be submitted to the Plan Administrator, must be for an amount of not less than $100 unless for the entire balance of such Account, and shall be subject to all applicable tax rules regarding the allocation of the withdrawal between taxable and nontaxable amounts.

(a) General Rule.  In the event that a qualified domestic relations order is issued with respect to a Participant, any alternate payee who is designated in that order may elect to receive the portion of the Participant’s Account awarded to the alternate payee under the order immediately if the order so provides.  If the alternate payee elects immediate payment, payment shall be made as soon as administratively feasible after the Plan Administrator has determined that the order is qualified, even though the Participant has not reached the “earliest retirement age” or may not be entitled to a concurrent Plan distribution under the previous provisions of Article 6.  Otherwise, distribution to the alternate payee shall be subject to all the rules of Section 6.01.  If the portion of the Participant’s Account awarded to the alternate payee has a value of $1,000 or less, payment to the alternate payee automatically shall be made in an immediate lump sum payment pursuant to the cash‑out provisions of Section 6.01(d)(2).  Notwithstanding the alternate payee’s election to the contrary, if an alternate payee’s nonforfeitable Account balance at the time of the current distribution does not exceed the applicable dollar limitation of Code Section 411(a)(11), the only distribution option available shall be a lump sum distribution.

(b) Special Definitions.  For purposes of this section, the following terms have the meanings indicated:

(1) “Qualified domestic relations order” or “QDRO” means a domestic relations order: (A) which creates or recognizes the existence of an alternate payee’s right to, or assigns to an alternate payee the right to, receive all or a portion of the Account balance payable with respect to a Participant under the Plan; (B) which clearly specifies the name and the last known mailing address (if any) of the Participant and the name and mailing address of each alternate payee covered by the order, the amount or percentage of the Participant’s Account to be paid by the Plan to each such alternate payee, or the manner in which such amount or percentage is to be determined, the number of payments or period to which such order applies, and each plan to which such order applies; and (C) which does not require the Plan to provide (i) any type or form of benefit, or any option, not otherwise provided under the Plan, (ii) increased benefits (determined on the basis of actuarial value),  (iii) payment of benefits to an alternate payee that are required to be paid to another alternate payee under another order previously determined to be a qualified domestic relations order.  As provided by Code Section 414(p)(7)(A), it is solely within the discretion of the Plan Administrator to determine whether or not a domestic relations order is accepted by the Plan as a QDRO.  A domestic relations order that otherwise satisfies the requirements to be qualified under the foregoing definition will not fail to be qualified solely because the order is issued after, or revises, another domestic relations order or QDRO or because of the time at which the order is issued,

(2) “Domestic relations order” means any judgment, decree or order (including approval of a property settlement agreement) which relates to the provision of child support, alimony payments or marital property rights to a spouse, former spouse, child or other dependent of a Participant, and is made pursuant to a state domestic relations law (including a community property law).

(3) “Earliest retirement age” means the earlier of (A) the date on which the Participant is entitled to a distribution under the Plan, or (B) the later of the date the Participant attains age 50 or the earliest date on which the Participant could begin receiving benefits under the Plan if the Participant separated from service.

(4) “Alternate payee” means any spouse, former spouse, child or other dependent of a Participant who is recognized by a domestic relations order as having a right to receive all, or a portion of, the Account balance payable under the Plan with respect to such Participant.

(a) Application.  The rules of this Section 7.01 shall be the exclusive means of measuring service under the Plan on and after the Effective Date.  Prior to the Effective Date, service will be measured by the Masco Corporation 401(k) Plan and the Masco Corporation Hourly 401(k) Plan where required by this Plan, and credit shall be given in this Plan for service credited by the Masco Corporation 401(k) Plan and/or the Masco Corporation Hourly 401(k) Plan, but any such service shall not be double counted (including with any service under this Plan for any short Plan Year) for any purpose by this Plan. 

(b) Service Definitions.  The following terms shall have the meanings indicated:

(1) Hour of Service.  Unless otherwise provided in the Appendices, for purposes of the Plan, an “Hour of Service” means each:

(2) “Employment Commencement Date” means the date on which the Employee first performs an Hour of Service for the Employer.

(3) “Reemployment Commencement Date” means the first day, following a Period of Severance which is not required to be taken into account under the service

(4)

“Severance from Service Date” means the earlier of:

(A) The date on which an Employee quits, retires, is discharged or dies; or

(B) The first anniversary of the first date of a period in which an Employee remains absent from service (with or without pay) with the Employer for any reason other than quit, retirement, discharge or death, such as vacation, holiday, sickness, disability, leave of absence or layoff (not treated as a termination).

(5)

“Period of Severance” means the period of time commencing on the Severance from Service Date and ending on the date on which the Employee again performs an Hour of Service, under paragraph (b)(1)(A) above, for the Employer.

(6)

“Period of Service” means a period of service commencing on the Employee’s Employment Commencement Date or Reemployment Commencement Date, whichever is applicable, and ending on his Severance from Service Date.

(c)

Years of Service.

(1) General Definition.  An Employee’s Years of Service shall be equal to the number of whole years within the Employee’s Period of Service, whether or not such Periods of Service were completed consecutively.  Aggregation shall be on the basis that 12 months or 365 days equal one year.  No more than one Year of Service shall be granted for any one 12‑month period of time.

(2) Service Spanning Rule.  For purposes of paragraph (c)(1), an Employee’s Period of Service shall be deemed to include the following Periods of Severance:

(A) Any Period of Severance resulting from an Employee’s quit, discharge or retirement if the employee performs an Hour of Service, under paragraph (b)(1)(A) above, for the Employer within 12 months from the Severance from Service Date; and

(B) The portion of a Period of Severance, resulting from a reason other than quit, discharge or retirement, between the date the Employee does in fact quit, is discharged or retires and the date he again performs an Hour of Service, under paragraph (b)(1)(A) above, for the Employer, provided that such Hour of Service is performed within 12 months of the date on which the Employee was first absent from service.

(3) Other Service Counted.  An Employee’s Years of Service also shall include years, measured on the same elapsed time basis as described in paragraphs (1) and (2) above, during which such Employee was:

(A) Employed by the Employer in a category of employees excluded from the Plan;

(B) Employed by an employer which is a member of a controlled group of corporations (as defined in Code Section 1563(a) without regard to subsections (a)(4) and (e)(3)(C)) including the Employer, by an employer which is a trade or business under common control (as defined in Code Section 414(b) or (c)) with the Employer, or by an employer which is a member of an affiliated service group (as defined in Code Section 414(m)(2) and (5)) including the Employer;

(C) A leased employee (as defined in Code Section 414(n)(2)) who performed services for the Employer, to the extent provided by Code Section 414(n) and the related regulations;

(D) Employed by a predecessor employer of the Employer, the plan of which predecessor is the Plan maintained by the Employer;

(E) Employed by a predecessor employer of the Employer, even though the Plan is not the plan maintained by the predecessor employer, but only if service with such predecessor employer is required to be included in the individual’s Years of Service by regulations under Code Section 414(a)(2);

(F) On a leave of absence with the prior written consent of the Employer, provided that the Employee returns at or prior to the expiration of such leave; and

(G) Absent for military leave pursuant to Section 7.06.

(4) Service Excluded.  Notwithstanding paragraphs (1), (2) and (3) above, an Employee’s Years of Service shall not include:

(A) Years of Service disregarded under the Break in Service rules of paragraph (d) below; and

(B) Years of Service prior to the date the Plan, or a predecessor of the Plan, was first adopted by his Employer (as set forth in the Appendices), or January 1 of the calendar year in which the first allocation of Company contributions is made to the Employee’s Account under the Plan.

(d) Break in Service Rules.  A “Break in Service” means a 12‑month Period of Severance.  Provided, however, that an Employee who is on leave of absence authorized in writing in advance by the Employer, in accordance with the Employer’s employment policies (which shall be interpreted to be applied uniformly to all Employees for the purposes of the Plan), and who returns at or prior to the expiration of such leave, shall not be considered as having incurred a Break in Service. Provided further, that in the case of an Employee who is absent from work for maternity or paternity reasons, the 12‑consecutive month period beginning

(1) By reason of the pregnancy of the Employee;

(2) By reason of the birth of a child of the Employee;

(3) By reason of the placement of a child with the Employee in connection with the adoption of such child by such Employee; or

(4) For purposes of caring for such child for a period beginning immediately following such birth or placement.

(e)

Effects of Separation from Employment.

(1) Participation.

(A) An Employee who separates from employment, but who returns before incurring a Break in Service, shall not have his eligibility for continued participation affected, or if he has not satisfied the Plan’s eligibility requirements as of his date of separation, the determination of when he has satisfied such requirements and the date on which he is to commence participation shall not be affected; provided, in the case of a Participant whose participation in the Plan has terminated during the period of his separation due to a distribution of the entire nonforfeitable balance of his Account, participation shall resume on the first date he is credited with an Hour of Service following the separation.

(B) If an Employee who incurs a Break in Service was not a Participant in the Plan prior to the break, or if his participation in the Plan has terminated pursuant to Article 2, participation shall commence or resume, as the case may be, on the first date that the Employee is credited with an Hour of Service following the Break in Service, provided that the Employee then meets the eligibility requirements of Article 2; otherwise, participation shall commence or resume, as the case may be, as if the individual were a new Employee.  An Employee whose participation does not terminate pursuant to the Plan shall continue as a Participant in the Plan during and after a Break in Service.

(2) Years of Service.  An Employee shall not lose Years of Service credit in any of the following situations:

(A) The Employee temporarily separates from employment but returns before incurring a Break in Service;

(B) The Employee incurs a Break in Service but the break is not accompanied by an actual separation from employment;

(C) The Employee incurs one or more Breaks in Service but at the time had a nonforfeitable right to part or all of the portion of his Account attributable

(D) The Employee incurs fewer than five consecutive one‑year Breaks in Service; or

(E) The number of consecutive one‑year Breaks in Service incurred by the Employee is less than his number of Years of Service prior to the break (without regard to Years of Service disregarded by the rule immediately below).

(3) Forfeitures.  The forfeitable portion of a Participant’s Account, if any, shall be forfeited and returned to the Fund in accordance with the rules of this paragraph.

(A) If the nonforfeitable balance of the Participant’s Account is distributed in a single lump sum payment no later than the close of the Plan Year following the Plan Year in which participation in the Plan terminates, the forfeiture shall occur as of the Accounting Date the Account is valued for distribution pursuant to Article 6.

(B) If the nonforfeitable balance of the Participant’s Account exceeds $1,000, and if the Participant refuses to consent to payment of this amount prior to his attainment of Normal Retirement Age, the forfeiture shall occur no later than the last day of the Plan Year following the Plan Year in which his participation terminates.

(C) If a Participant incurs a Break in Service at a time when he has no nonforfeitable right to any portion of his Account attributable to Employer contributions (including for this purpose, any Employee before-tax contributions but excluding rollovers), a forfeiture of his entire Account balance derived from Employer contributions shall occur no later than the last day of the Plan Year in which the Participant first incurs a Break in Service.

(4) Repayments.  A Participant who has received a distribution of less than the full balance of his Account, and who returns to employment covered by the Plan prior to incurring five consecutive one‑year Breaks in Service, may elect to repay to the Fund the full amount distributed, provided that such repayment is made prior to the earlier of:

(A) Five years after the date he resumes employment with the Employer; or

(B) The last day of the Plan Year in which he incurs the fifth consecutive one‑year Break in Service after receiving a distribution of less than the full balance of his Account.  Any amount so repaid shall be aggregated in the Participant’s Account with any forfeiture restored pursuant to paragraph (3) above.

(5) Nonforfeitable Percentage.  Except in the case of a Participant:

(A) Whose nonforfeitable percentage was 100% pursuant to Article 5;

(B) Who had no prior Account balance; or

(C) Who had a prior Account balance that was disbursed and who now is not entitled to make a repayment or to have a previous forfeiture restored, there shall be created, for each Participant who incurs a Break in Service or who receives a distribution (regardless of a Break in Service), two sub‑accounts within his Account.  These sub‑accounts shall separate any additions to the Account made after the Break in Service (or after the distribution) from the previous balance.  The Participant’s nonforfeitable percentage shall be determined separately for these sub‑accounts, in accordance with the following rules:

(i) Years of Service earned by the Participant subsequent to any Breaks in Service of less than five consecutive years shall be credited for purposes of determining the nonforfeitable percentage of the Participant’s pre‑Break sub‑account;

(ii) Years of Service earned by the Participant subsequent to any five consecutive one‑year Breaks in Service shall be disregarded for purposes of determining the nonforfeitable percentage of the Participant’s pre‑Break sub‑account;

(iii) Years of Service earned by the Participant subsequent to the Break in Service, plus any Years of Service earned prior to the Break in Service which are retained pursuant to paragraph (2) above, shall be used for purposes of determining the nonforfeitable percentage of the Participant’s post‑Break sub‑account; and

(iv) Until a Participant entitled to make a repayment pursuant to paragraph (4) above makes the full repayment, or in any case for a Participant who fails or is ineligible to make a repayment, the Participant’s nonforfeitable interest in his pre‑Break sub‑account (or initial sub‑account, where there has been a distribution but no Break in Service) shall be equal to an amount, V, determined by the formula:

(6) Deemed Cash‑Out.  Any individual whose employment with the Employer has terminated prior to that individual obtaining any nonforfeitable interest in a benefit under the Plan shall be treated as having been cashed‑out of the Plan on the date of his termination of employment, and his status as a Participant in the Plan shall cease as of that date, subject to his right to again commence participation if he returns to employment, as otherwise provided by the Plan.

(a) Changes in Employment Status.  As provided in Article 2, union Employees (unless meeting the specific provisions of Article 2) and nonresident alien Employees with no U.S. compensation are excluded from participation in the Plan.  However, an Employee who is transferred to a position allowing him to be an eligible Employee (“covered employment”) or who ceases to be a nonresident alien with no U.S. compensation, may become a Participant, provided that the Employee meets the other requirements for participation under Section 2.01.  Participation shall commence as provided in Article 2.  In no event though, shall the Employee’s compensation while employed in other than covered employment, or while a nonresident alien with no U.S. compensation, be used in determining his allocations in any Plan Year under Article 4.  In the case of a Participant’s transfer to non-covered employment, or for a Participant who becomes a nonresident alien with no U.S. compensation, his Account shall be valued and frozen (except for allocation of subsequent earnings, gains, losses and expenses) as of the date of the last contribution to his Account for the period containing the date on which his status changes, but he shall not be entitled to any distribution of his Account under Article 6 until his date of retirement, disability, death, or other termination of employment with the Employer and all Related Entities, after which date distribution may be made in accordance with the provisions of the Plan as they would otherwise apply to a Participant or his Beneficiary.

(b) Transfers between Entities.

(1) Any subsidiary, direct or indirect, of the Company, any brother‑sister corporation, or any division, with the approval of the Plan Administrator, and by resolution of such other entity’s board of directors (or other authority in the case of an unincorporated entity), may adopt the Plan and the trust created under the Plan.

(2) Employees from time to time may transfer or may be transferred to entities related to the Company or may transfer or be transferred from such entities.  Such Employees are referred to herein as “transferred Employees.” The status of any such transferred Employee under this Plan or under the Plan as adopted by a subsidiary pursuant to paragraph (b)(1) of this section shall be determined in accordance with the following rules:

(A) A transferred Employee shall become a Participant in the Plan upon his satisfaction of the Plan’s eligibility and participation requirements and any eligibility and participation requirements set forth in the Appendices of the entity to which he is transferred.  A transferred Employee’s participation in the Plan shall cease, and his Account in the Plan shall be distributed, only upon occurrence of the events prescribed in the Plan, but considering for such purpose that the Company and all Related Entities are a single employer.

(B) For purposes of determining the amount of any Employer’s matching contribution under Article 3 of the Plan, a transferred Employee’s before‑tax contributions shall be limited to his before‑tax contributions made while employed by that Employer, and for purposes of any other contribution allocations to his Account, his compensation shall be restricted to the compensation for the Plan Year from the Employer making the contribution.

(C) In no event shall any of the foregoing provisions be interpreted in such a way as to result in the duplication of benefits for any transferred Employee under this Plan or any other plan maintained by an Employer.

(a) Single Plan.  Notwithstanding any provision of the Plan to the contrary, the total additions made to the Account of any Participant in any limitation year shall not exceed the lesser of (1) 100% of the Participant’s compensation for such limitation year, or (2) $53,000, except that, such $53,000 limitation shall be adjusted automatically, without the necessity of a specific Plan amendment, effective as of the first day of the limitation year ending within each calendar year after 2015 for which the Secretary of the Treasury has increased this dollar limitation to reflect cost-of-living adjustments in accordance with Code Section 415(d) and the related regulations.  The compensation limit referred to in part (1) above shall not apply to any contribution for medical benefits after severance from service (within the meaning of Code Sections 401(h) or 419A(f)(2)) which otherwise is treated as an annual addition.

(b) Special Definitions.  For purposes of this section, the following terms have the meanings indicated:

(1)

“Total additions” means, with respect to each limitation year, the sum of:

(A) Employer contributions allocated to the Participant’s Account (including Employee before-tax contributions made under Sections 2.04 and Section 3.03);

(B) Forfeitures (if any) allocated to the Participant’s Account;

(C) The total of the Participant’s Employee after-tax contributions, if any, for the limitation year; and

(D) Any amounts allocated to an individual medical account, as defined in Code Section 415(1)(2), which is part of any pension or annuity plan maintained by the Employer, and amounts derived from contributions which are attributable to postretirement benefits allocated to the separate account of a key employee (as defined in Section 7.04) under a welfare benefit fund, as defined in Code Section 419(e), maintained by the Employer.

(E) Any restorative payment, which is a payment made to restore losses to the Plan resulting from actions by a fiduciary for which there is reasonable risk of liability for breach of a fiduciary duty under ERISA or under other applicable federal or state law, and where Participants who are similarly situated are treated similarly with respect to the payments.  Generally, payments are restorative payments only if the payments are made in order to restore some or all of the Plan’s losses due to an action (or a failure to act) that creates a reasonable risk of liability for such a breach of fiduciary duty (other than a breach of fiduciary duty arising from failure to remit contributions to the Plan).  Such payments include payments to the Plan made pursuant to a Department of Labor order, the Department of Labor’s Voluntary Fiduciary Correction Program, or a court-approved settlement, to restore losses to Plan on account of the breach of fiduciary duty (other than a breach of fiduciary duty arising from failure to remit contributions to the Plan).  Payments made to the Plan to make up for losses due merely to market fluctuations and other payments that are not made on account of a reasonable risk of liability for breach of a fiduciary duty under ERISA are not restorative payments and generally constitute contributions that are considered total additions;

(F) A direct transfer of a benefit or employee contributions from a qualified plan to this Plan;

(G) Rollover contributions (as described in Code Sections 401(a)(31), 402(c)(l), 403(a)(4), 403(b)(8), 408(d)(3), and 457(e)(16));

(H) Repayments of loans made to the Plan by a Participant; and

(I) Repayments of amounts described in Code Section 411(a)(7)(B) (in accordance with Code Sections 411(a)(7)(C)) and 411(a)(3)(D), as well as Employer restorations of benefits that are required pursuant to such repayments.

(2) “Limitation year” means the Plan Year.  The limitation year may be changed only by a Plan amendment.  If the Plan is terminated effective as of a date other than the last day of the limitation year, then the Plan is treated as if the Plan had been amended to change its limitation year.

(3) “Compensation” means, with respect to each limitation year, an Employee’s wages as defined in Code Section 3121(a) but without regard to the limitation imposed by Code Section 3121(a)(1).   Provided, however, that compensation shall be increased for any year by the following types of compensation paid after a Participant’s severance from service with the Employer (or any other entity that is treated as the Employer pursuant to Code Section 414(b), (c), (m) or (o)), but  only to the extent such amounts are paid by the later of 2½ months after the Participant’s severance from service or by the end of the year that includes the date of such severance from service:

(A) Regular pay after severance of service if the payment is regular compensation for services during the Participant’s regular working hours, or compensation for services outside the Participant’s regular working hours (such as overtime or shift differential), commissions, bonuses or other similar payments; and the payment would have been paid to the Participant prior to a severance from service if the Participant had continued in service with the Employer;

(B) Leave cash-outs if those amounts would have been included in the definition of compensation if they were paid prior to the Participant’s severance from service, and the amounts are payment for unused accrued bona fide sick, vacation or other leave, but only if the Participant would have been able to use the leave if employment had continued; and

(C) Deferred compensation if it would have been included in the definition of compensation had it been paid prior to the Participant’s severance from service, and the compensation is received pursuant to a nonqualified unfunded deferred compensation plan, but only if the payment would have been paid at the same time if the Participant had continued in employment with the Employer and only to the extent that the payment is currently includible in the Participant’s gross income. 

(D) Payments to an individual who does not currently perform services for the Employer by reason of qualified military service (as that term is used in Code Section 414(u)(1)) to the extent those payments do not exceed the amounts the individual would have received if the individual had continued to perform services for the Employer rather than entering qualified military service;

(E) Amounts paid to a Participant who is permanently and totally disabled (as defined in Code Section 22(e)(3)); 

(F) Amounts earned but not paid during the year solely because of the timing of pay periods and pay dates; and

(G) Any amount for the year in excess of $265,000 (or such other cost-of-living adjusted amount as is set by the Secretary of Treasury in accordance with Code Section 401(a)(17)(B) for years beginning after 2015); for any period of less than 12 months, the annual limit of this part (G) shall be an amount equal to the limit for the calendar year in which the period begins multiplied by the ratio obtained by dividing the number of full months in the short period by 12.

(4) “Employee contributions” means any after-tax amounts previously contributed to the Plan by a Participant as described in Section 3.05 or to any other plan, if any, and excludes Employee before-tax contributions under Section 3.03 and rollover contributions made pursuant to Section 3.06.

(5) “Employer contributions” means before-tax Employee contributions made under Section 3.03 or any other plan or matching contributions made to a plan by the Employer under Section 3.04 and Company profit sharing contributions made pursuant to Section 3.01.

(c) Aggregation. In applying the limitations of this section, all defined contribution plans (without regard to whether a plan has been terminated) ever maintained by the Employer (or a predecessor employer) and under which the Participant receives total additions are treated as one defined contribution plan. For purposes of this section, the “Employer” includes not only the Employer that adopts this Plan but also all members of a controlled group or an affiliated service group that includes the Employer (within the meaning of Code Section 414(b), (c), (m) or (o)), except that for purposes hereof the determination shall be made by applying Code Section 415(h), and shall take into account tax-exempt organizations under Treasury Regulation Section 1.414(c)-5, as modified by Treasury Regulation Section 1.415(a)-l(f)(l).  A former Employer is a “predecessor employer” with respect to a Participant in a plan maintained by an Employer if the Employer maintains a plan under which the Participant had accrued a benefit while performing services for the former Employer, but only if that benefit is provided under the plan maintained by the Employer.   For this purpose, the formerly affiliated plan rules in Treasury Regulation Section 1.415(f)-1(b)(2) apply as if the Employer and predecessor Employer constituted a single employer under the rules described in Treasury Regulation Sections 1.415(a)-1(f)(1) and (2) immediately prior to the cessation of affiliation (and as if they constituted two, unrelated employers under the rules described in Treasury Regulation Sections 1.415(a)-1(f)(1) and (2) immediately after the cessation of affiliation) and cessation of affiliation was the event giving rise to the predecessor employer relationship, such as a transfer of benefits or plan sponsorship.  With respect to an employer of a Participant, a former entity that antedates the Employer is a “predecessor employer” with respect to the Participant if, under the facts and circumstances, the employer constitutes a continuation of all or a portion of the trade or business of the former entity.  For purposes of aggregating plans for Code Section 415, a “formerly affiliated plan” of the Employer is taken into account for purposes of applying the limitations of this section, but the formerly affiliated plan is treated as if it had terminated immediately prior to the “cessation of affiliation.”  A “formerly affiliated plan” of the Employer is a plan that, immediately prior to

(d) Employee Leasing.  In the event the Employer is provided with services by leased employees (within the meaning of Code Section 414(n) and Section 7.05), then for purposes of this section, the leased employees shall be treated as Participants in the Plan and contributions or benefits provided by the leasing organization which are attributable to services performed for the Employer shall be treated as provided by the Employer as permitted under Code Section 414 and related regulations.

(e) Excess Total Additions. If the total additions are exceeded for any Participant, then the Plan may correct such excess only in accordance with the Employee Plans Compliance Resolution System (“EPCRS”) as set forth in Rev. Proc. 2006-27 or any superseding guidance, including, but not limited to, the preamble of the final Treasury Regulations under Code Section 415.

(f) Notice to Participants.  The Employer shall advise affected Participants of any adjustments to their Accounts required by the limitations under this section.

(a) General Rule.  If, for any Plan Year, the Plan is a top-heavy plan as determined under paragraph (b), then the requirements in paragraph (c) apply to the extent indicated by that paragraph.

(b) Top-Heavy Test.  The Plan’s status as a top-heavy plan for any Plan Year is determined in accordance with the following five step procedure:

(1) Required Plan Aggregation.  First, there shall be aggregated with this Plan (A) each plan of the employer in which a key employee is a participant, (B) each other plan of the employer which enables a plan described in part (A) to meet the requirements of Code Section 401(a)(4) or Code Section 410 and (C) each plan described in part (A) or (B) which was terminated during the five consecutive Plan Year period ending with the determination date.

(2) Key Employee Sum.  Second, there shall be computed, as of the determination date, the sum of the account balances of all key employees under this Plan and all defined contribution plans (including any simplified employee pension as defined in Code Section 408(k)) required to be aggregated under part (1), and the present values of the cumulative accrued benefits of all key employees under all defined benefit plans required to be aggregated under part (1).  For purposes of this computation, account balance means the account balance as of the most recent valuation date occurring within a 12-month period ending on the determination date, plus an adjustment for contributions due as of the determination date.  In the case of a profit sharing plan or other plan not subject to the minimum funding requirements of Code Section 412, the adjustment is the amount of any contributions actually made after the valuation date but on or before the determination date, except that in the first plan year, the adjustment shall include any contributions made after the determination date that are allocated as of a date within the first plan year.  In the case of a money purchase pension plan or other plan subject to the minimum funding requirements of Code Section 412, the adjustment is the amount of any contributions that would be allocated as of a date not later than the determination date, even though such amount is not yet required to be contributed, plus the amount of any contribution actually made (or due to be made) after the valuation date but before the expiration of the extended payment period under Code Section 412(c)(10).  Also for purposes of this computation, the present value of a cumulative accrued benefit shall be determined as of the most recent valuation date occurring within a 12-month period ending on the determination date with the accrued benefit for a current Participant determined as if the individual had terminated employment as of such valuation date, except that in the first plan year of a defined benefit plan, the accrued benefit of a current Participant must be determined as if the individual had terminated employment as of the last day of the plan year.  Finally, for purposes of this computation: (A) there shall be included in the sum any distributions (other than rollover amounts or plan-to-plan transfers not initiated by the employee or made to another plan maintained by the Employer) made to an employee from this Plan or from another plan required to be aggregated under part (1), including a distribution made from a terminated plan which, if it had not been terminated, would have been required to be aggregated under part (1), within the 1-year period ending on the determination date, or within a 5-year period in the case of a distribution made for any reason other than severance from employment, death or disability; (B) there shall be excluded from the sum any rollover contribution and any plan-to-plan transfer initiated by the employee and accepted by this Plan, or by any other plan required to be aggregated under part (1), from a plan other than one maintained by the employer; (C) there shall be excluded from the sum the account balance and present value of the accrued benefit of any employee who formerly was a key employee but who is not a key employee for the year ending on the determination date; and (D) there shall be excluded from the sum the account balance and the present value of the accrued benefit of any individual who has not performed service for the employer at any time during the 1-year period ending on the determination date. 

(3) All Employee Sum.  Third, under the same procedures as set forth in part (2) above, including the rules in parts (A), (B), (C) and (D), there shall be computed the sum of account balances and present values of accrued benefits for all employees. 

(4) Top-Heavy Test Fraction.  Fourth, the sum computed in part (2) shall be divided by the sum computed in part (3), and if the resulting fraction is 0.60 or less, neither the Plan nor any plan required to be aggregated under part (1) is a top-heavy plan for the Plan Year.  If the fraction is greater than 0.60, both the Plan and any plan required to be aggregated under part (1) are top-heavy plans for the Plan Year, unless after the permissive plan aggregation described in part (5) below, the recomputed fraction is 0.60 or less. 

(5) Permissive Plan Aggregation.  At the election of the Plan Administrator, plans of the Employer, other than those required to be aggregated under part (1), but which provide contributions or benefits comparable to this Plan, may be aggregated with this Plan and the plans required to be aggregated under part (1), provided that such aggregated group would meet the requirements of Code Sections 401(a)(4) and 410.  Steps in parts (2) through (4) above then may be repeated, based on this permissively aggregated group, and if the top-heavy test fraction computed in part (4) is 0.60 or less for this group, then neither the Plan nor any plan required to be aggregated under part (1) is a top-heavy plan for the Plan Year; however, if the top-heavy test fraction computed in part (4) is still greater than 0.60, then both the Plan and any plan required to be aggregated under part (1) will be top-heavy plans for the Plan Year, but no plan which is permissively aggregated under this part (5) will be deemed top-heavy for such reason. 

(c) Superseding Rules.  For each Plan Year that the Plan is a top-heavy plan, the requirements in part (1) below shall supersede any other provisions of the Plan which otherwise would apply for that Plan Year.    In addition, for any Plan Year that the Plan is a top-heavy plan, the vesting schedule in part (2) below shall supersede the Plan’s regular vesting schedule, but only to the extent it provides a greater vested percentage for any level of Years of Service than the Plan’s regular vesting schedule, and only with respect to employees who have at least one Hour of Service after the Plan becomes top-heavy; if and when the Plan ceases to be a top-heavy plan, the Plan’s regular vesting schedule shall again apply (without regard to the schedule in part (2) below) as of the first day of the Plan Year after the last Plan Year for which the Plan is a top-heavy plan, but subject to all Plan rules that apply in the case of amendments to the vesting schedule. 

(1) Minimum Contributions or Benefits for Non-Key Employees.  Employer contributions and forfeitures allocated on behalf of each non-key employee Participant (A) who has not separated from employment with the Employer at the end of the Plan Year, (B) who is eligible for an allocation of Employer contributions under the Plan (without regard to any requirements for a minimum number of hours of service during the Plan Year, mandatory or voluntary contributions, or compensation for the Plan Year in excess of a stated amount), and (C) who does not participate in a defined benefit plan of the Employer, shall be equal to at least (i) multiplied by (ii), where --

(i) Is equal to 3 percent, or if less, the maximum amount of Employer contributions and forfeitures, expressed as a percentage of compensation, allocated on behalf of any key employee Participant for the Plan Year, and

(ii) Is equal to the non-key employee Participant’s compensation for the Plan Year.

(2) Accelerated Vesting.  A Participant’s vested percentage of any Employer Contribution Account shall be determined in accordance with the following vesting schedule:

Years of Service

Vested Percentage

less than 2 years

0%

2 years

20%

3 years

40%

4 years

60%

5 years

80%

6 or more years

100%

(d) Special Definitions.  For purposes of this section, the following terms have the meanings indicated:

(1) “Compensation” means compensation as defined in Section 7.03(b)(3).

(2) “Determination date” means, with respect to any Plan Year, the last day of the preceding Plan Year, except that in the case of the first Plan Year, the determination date shall be the last day of that Plan Year.  Where one or more plans are required or permitted to be aggregated with this Plan, and where all plan years do not coincide, the key employee and all employee sums in paragraph (b) above each shall be determined separately for each plan on the respective determination dates, and the results shall then be combined for the determination dates falling within the same calendar year.

(3) “Employee” means an Employee who is or once was a Participant, or would have been a Participant but for his failure, after meeting the Plan’s initial eligibility requirements, to complete some minimum number of hours of service in any Plan Year, if required, to make mandatory employee contributions, if required, or to receive compensation in excess of a stated amount, and any Beneficiary of such an Employee who is deceased.

(4) “Employer” means the Employer, as well as any member of a group of employers constituting (1) a controlled group of corporations (within the meaning of Code Section 414(b) as modified by Code Section 415(h)), (2) trades or businesses, whether or not incorporated, under common control (within the meaning of Code Section 414(c) as modified by Code Section 415(h)) or (3) an affiliated service group (as defined in Code Section 414(m)).

(5) “Key employee” means each employee who at the time during the Plan Year that includes the determination date was (A) an officer of the employer having annual compensation greater than $170,000 (as adjusted under Code Section 416(i)(1) for Plan Years beginning after December 31, 2015), (B) a 5-percent owner of the employer, (C) a 1-percent owner of the employer having annual compensation of more than $150,000 or (D) a Beneficiary of any of the foregoing who is deceased.  For purposes of (A) no more than 50 employees, or if less, 10 percent of the employer’s number of employees, but not fewer than 3, shall be treated as officers.  The terms 5-percent owner and 1-persent owner shall have the meanings set forth in Code Section 416(i)(1)(B).

(6) “Non-key employee” means an employee who is not a key employee or any Beneficiary of such an employee who is deceased.

(7) “Valuation date” means the last day of the plan year in the case of any defined contribution plan, including this Plan, and the date used for computing plan costs for minimum funding in the case of any defined benefit plan.

(e) Anti-Cutback Rule.  Notwithstanding the foregoing rules of this section, in no event shall any changes in the Plan’s benefit structure, including its vesting provisions, that result from a change in the Plan’s top-heavy status, cause the Account balance or accrued benefit of any Participant to be reduced in violation of Code Section 411.  In addition, in the case of any

(a) General Rule.  Although any leased employee of the Employer generally shall be excluded from participation in the Plan and shall not be entitled to make or be allocated any contributions under the Plan, the leased employee shall be counted as an Employee for the purposes required by Code Section 414(n). 

(b) Exception.  If by reason of counting such leased employee as an Employee for purposes required by Code Section 414(n), and after taking into account contributions and benefits provided by the leasing organization as described in this paragraph, the Plan fails to meet the requirements of Code Section 401(a) or 410(b), then the leased employee will be eligible to participate in the Plan as if he were an Employee.  In such event, Years of Service for purposes of the Plan for the leased employee will be calculated in accordance with the rules set forth in Code Section 414 and related regulations.  In all events, for purposes of this section, contributions to or benefits provided by any qualified plan maintained by the leasing organization which are attributable to services performed for the Employer shall be treated as provided by the Employer.

(c) Exception to the Exception.  Notwithstanding paragraph (b) of this section, any leased employee will not be eligible to participate in the Plan and will be treated under the general rule in paragraph (a) if such employee is covered by a pension plan maintained by the leasing organization that meets the requirements of this paragraph and all leased employees constitute 20 percent or less of the Employer’s non-highly compensated work force.  A pension plan meets the requirements of this paragraph if it is a money purchase pension plan providing (1) a nonintegrated employer contribution rate of at least 10 percent of compensation, (2) full and immediate vesting and (3) immediate participation for each employee of the leasing organization (other than employees who perform substantially all of their services for the leasing organization and individuals whose compensation from the leasing organization during the plan year and the three immediately preceding plan years is less than $1,000 per year). 

(d) Recordkeeping Relief.  If the Employer does not maintain any top-heavy plans within the meaning of Code Section 416(g) and uses the services of leased employees only for an insignificant percentage of its total workload, then the Employer shall be exempt from the employee leasing recordkeeping requirements in accordance with regulations prescribed by the Secretary of Treasury. 

(e) Multiple Employers.  In the event that the Employer is a member of a group of employers constituting (1) a controlled group of corporations (within the meaning of Code Section 414(b)), (2) trades or businesses, whether or not incorporated, under common control

(f) Special Definitions.  For purposes of this section, the following terms have the meanings indicated:

(1) “Compensation” means the compensation of the leased employee from the leasing organization for the entire year, as described in Code Section 415(d)(3) and the related regulations, except that such term shall include amounts excluded from gross income under Code Section 402(e)(3) or 402(h)(1)(B), amounts which could have been received in cash but for an election under a Code Section 125 cafeteria plan and amounts contributed to a Code Section 403(b) annuity contract pursuant to a salary reduction agreement within the meaning of Code Section 3121(a)(5)(D).

(2) “Leased employee” means any person (other than an Employee) who has performed services for the Employer (or for the Employer and related entities determined in accordance with Code Section 414(n)(6)(A)) on a substantially full time basis for a period of at least one year pursuant to an agreement between the Employer and a leasing organization and such services are performed under the primary direction or control of the Employer.

(3) “Leasing organization” means a person or other entity, other than the Employer, providing leased employees by agreement with the Employer.

(4) “Non-highly compensated work force” means the aggregate number of individuals who are not highly compensated employees of the Employer (determined in accordance with Code Section 414(q)) and who either are (A) employees of the Employer (without regard to paragraph (a) of this section) having performed services for the Employer (or for the Employer and related entities determined in accordance with Code Section 414(n)(6)(A)) on a substantially full time basis for a period of at least one year or (B) leased employees.

(a) In General.  The provisions of this section shall supersede any contrary provisions of the Plan.  With respect to any Participant who leaves employment with the Employer (i.e., the Company or any Related Entity that has adopted the Plan) for qualified military service, the Plan shall comply with –

(1) The minimum requirements applicable to defined contribution retirement plans prescribed by:

(A) The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), as set forth in paragraph (b) of this section; and

(B) The Heroes Earnings Assistance and Relief Tax Act of 2008 (“HEART Act”), including related guidance contained in IRS Notice 2010-15, as set forth in paragraph (c) of this section; and

(2) The permissive provisions of USERRA and the HEART Act that the Company has adopted, but only to the extent, and effective as of such dates, as specifically described in paragraph (d) of this section. 

(b) Mandatory USERRA Provisions.

(1) No Break in Service.  For purposes of Section 7.01, a Participant who incurs a break in service because of a period of qualified military service, but who has reemployment rights under USERRA, and who returns to employment with the Employer within such time as required by those rights, shall be treated for purposes of the Plan as not having incurred a break in service by reason of such Participant’s period of qualified military service. 

(2) Service for Vesting. With respect to the portion of a Participant’s Account that is subject to forfeiture, if any, each period of qualified military service served by a Participant, upon the Participant’s reemployment by the Employer pursuant to USERRA, shall be counted in the determination of the Participant’s years of service with the Employer for the purpose of determining the Participant’s nonforfeitable right to the balance of his Account under the Plan.

(3) Treatment of Certain Contributions.  If any contribution is made by the Employer with respect to a Participant and if such contribution is required by reason of such Participant’s rights under USERRA resulting from qualified military service, then:

(A) Such contribution shall not be subject to any otherwise applicable limitations contained in Code Section 404(a) or 415 and shall not be taken into account in applying such limitations to other contributions or benefits under the Plan or any other plan with respect to the year in which the contribution is made, but instead such contribution shall be subject to the foregoing limitations with respect to the year to which the contribution relates (in accordance with rules prescribed by the Secretary); and

(B) The Plan shall not be treated as failing to meet the requirements of Code Section 401(a)(4), 401(a)(26), 410(b) or 416 by reason of the making of (or the right to make) such contribution.

(c) Mandatory HEART Act Provisions.

(1) Death during Qualified Military Service. A Participant who is on leave from employment for qualified military service and who has reemployment rights under USERRA, but who dies during qualified military service, shall be considered as having returned to employment with the Employer the day prior to his date of death for purposes of determining the nonforfeitable rights in his Account, and the Participant’s entire

(2) Deemed Contributions.  For purposes of Employer contributions that are contingent on a Participant’s making 401(k) elective deferrals, Roth contributions or after-tax contributions, a Participant who dies during qualified military service shall be deemed to have made those contributions during his period of qualified military service at the average rate he made those contributions for the 12 months prior to military leave (or for the actual period of employment, if less).

(3) Nondiscrimination.  Any Employer contributions made under this section, if made to Highly Compensated Employees as well as Non-Highly Compensated Employees, must meet applicable nondiscrimination standards of the Code.

(4) Deemed Severance from Employment. A Participant’s period of uniformed service that exceeds 30 days shall be deemed to be a severance from service, thereby permitting a Plan distribution of all or a portion of his Account that otherwise would be contingent on an actual severance event.  If such a distribution is made in accordance with the foregoing sentence, any elective 401(k) elective deferrals by the Participant shall be prohibited under the Plan for a period of six months beginning on the date of distribution.  In addition, without regard to any restriction in the Plan on in-service distributions, a Participant who is an active reservist may elect, and the Plan shall make, an in-service distribution of all or a portion of the Participant’s Account attributable to 401(k) elective deferrals and earnings thereon, and any such distribution will be exempt from the Code’s 10% excise tax on early distributions.  In the event that both provisions of this paragraph apply, any distribution shall be treated as a distribution under the latter provision.

(d) Permissive Provisions.

(1) Differential Pay.  Differential pay shall be paid to a Participant who is on leave performing services in the uniformed service only as provided by the employment policies of his Employer.

(2) Loans.  The repayment obligation of a Participant under the terms of a loan taken from the Plan under Section 6.03 shall be suspended while the Participant is on leave performing services in the uniformed services.  During the suspension period, the loan shall not be deemed to be in default, but interest on the outstanding balance of the loan shall continue to accrue at the rate specified for the loan, except that such rate may not exceed an annual rate of 6% for the suspension period.  Following a Participant’s return from such leave, the balance of the loan, including suspended payments and accumulated interest, shall be re-amortized by the Plan Administrator (or its designee), and the full amount must be repaid within the time prescribed by the loan rules adopted under Plan Section 6.03 in accordance with the requirements of the Code and ERISA.

(e) Definitions.  For purposes of this section, the following terms shall have the meanings indicated:

(1) “Compensation” means compensation, as specifically defined for each separate purpose under the Plan, but increased by the amount of differential pay paid to the Participant by the Employer.

(2) “Differential pay” means the difference between (A) the compensation that a Participant would have received during a given period if he were not in qualified military service, determined on the basis of the rate of pay he would have received from the Employer but for his absence during the period of qualified military service, or if the compensation the Participant would have received during such period is not reasonably certain, the Participant’s average compensation from the Employer during the 12-month period immediately preceding the qualified military service (or, if shorter, the period of employment immediately preceding the qualified military service), and (B) the amount the individual actually receives from the government as military pay during services in the uniformed services for a period of more than 30 days.

(3) “Reemployment rights under USERRA” means the right of an individual, who is on leave from employment with the Employer for the purpose of service in the uniformed services, to be reemployed by the Employer following completion of such service, as guaranteed by USERRA.

(4) “Qualified military service” means service in the uniformed services by an individual if the individual has reemployment rights under USERRA.

(5) “Service in the uniformed services” means the performance of duty on a voluntary or involuntary basis in the uniformed services, including active duty, active duty for training, initial active duty for training, inactive duty training, full-time National Guard duty, a period for which an individual is absent from his position of employment for the purpose of an examination to determine the individual’s fitness to perform any such duty, and a period for which an individual is absent from employment for the purpose of performing funeral honors duty as authorized by USERRA.

(6) “Uniformed services” means the U.S. Armed Services, the Army National Guard or the Air National Guard, the commissioned corps of the Public Health Service and any other category designated by the United States President in time of war or national emergency.

(a) Establishment of Fund and Selection of Trustee.  The Company shall establish a trust fund by a trust agreement with a Trustee to carry out the purposes of the Plan.  The Company shall select such Trustee, who may be one or more individuals or a corporate trustee or both.  The Company may modify any such trust agreement to accomplish the purposes of the Plan.

(b) Contributions to the Fund and Investments by Trustee.  All contributions under the Plan shall be paid to the Trustee of the Fund.  The Fund shall be invested in such investments as are permissible for trustees under ERISA.  At the request of the Company, the Trustee shall prepare and submit an accounting of the Fund as of any date specified, but the Trustee shall not be required to render more than four such accountings during any Plan Year.  In any event, the Trustee shall prepare and render to the Company an accounting of the Fund as of the last day of each Plan Year.

(c) Limitation of Liability to Assets of Fund.  Except as required under applicable federal law, the benefits of the Plan shall be only such as can be provided by the assets of the Fund, and there shall be no liability or obligation on the part of the Company or any Employer to make any contributions or payments to establish or maintain the Plan, whether in the event of termination of the Plan or otherwise.  No liability for the payment of benefits under the Plan shall be imposed on the Company or any Employer or on the directors or officers of the Company or any Employer.

(a) Appointment of Investment Manager or Custodian.  The Company may appoint one or more investment managers meeting the definition of “investment manager” under Section 3(38) of ERISA.  Furthermore, the Company may appoint one or more investment consultants and one or more custodians to hold any portion of the Fund.  Any appointment of these service providers shall be made only upon proper authorization of the Company, or by a committee designated by the Company, and evidenced by a written designation signed by one or more duly authorized officers of the Company (or the committee, as applicable).

(b) Directions by Investment Manager.  An investment manager appointed pursuant to this section may direct the Trustee to invest all or such portion of the Fund placed in the discretion of the investment manager in securities or other properties as are selected by the investment manager, and may direct the Trustee to sell any securities or other property of the Fund placed in its discretion.  Where assets of the Fund are being held by a custodian appointed pursuant to this section, the investment manager’s direction shall be made to such custodian and copied to the Trustee.

(c) Actions by Trustee or Custodian at Direction of Investment Manager.  The Trustee or custodian, as the case may be, shall act on all such directions of the investment manager, and the Trustee and custodian shall have no fiduciary liability for acting in accordance with such directions or for the retention of any securities or properties so purchased.  The Trustee and custodian will be protected in relying upon any telegram, facsimile, email or other commonly used form of communication recognized in business and purporting to have been sent by the investment manager that the Trustee or custodian, respectively, believes in good faith to be genuine.  In directing investments, the investment manager shall diversify the investments so as to minimize the risk of large losses, unless under the circumstances and in the opinion of the investment manager, it is clearly prudent not to do so.

(d) Contributions to Trustee or Direct to Custodian.  Contributions to and disbursements from the Fund may be made to the Trustee or directly to and from any custodian appointed pursuant to this section, as determined by the Company.

(e) Reliance by Trustee and Custodian.  Notwithstanding any other provision of the Plan or any trust agreement, the Trustee shall be fully protected in relying upon the certification of the Company with respect to the appointment of such investment manager and it shall not be the responsibility of the Trustee to determine or review investment instructions given by the investment manager.  Similarly, any custodian appointed pursuant to this section shall assume no liability for acting in accordance with the directions of the investment manager.

(f) Status of Investment Manager as Named Fiduciary.  Each investment manager shall be a named fiduciary under the Plan and shall acknowledge its action as a fiduciary under the Plan in a writing delivered to the Trustee and to the Company.