PROTOTYPE DEFINED CONTRIBUTION PLAN Sponsored By SBERA BASIC PLAN DOCUMENT #01

Exhibit 4.9

Sponsored By

SBERA

The Sponsor hereby establishes this Plan for use by its clients who wish to adopt a qualified retirement plan. This Plan shall be interpreted in a manner consistent with the intention of the adopting Employer that this Plan satisfies Internal Revenue Code Sections 401 and 501. Any Plan and Trust established hereunder shall be so established for the exclusive benefit of Plan Participants and their Beneficiaries and shall be administered under the following terms and conditions:

ARTICLE I

DEFINITIONS

1.1 Actual Contribution Percentage (ACP)

The average of the Contribution Percentage of the eligible Participants in a specific group of Participants (either Highly Compensated Employees or Non-Highly Compensated Employees) for a Plan Year. The Actual Contribution Percentage shall mean the ratio (expressed as a percentage and calculated separately for each Participant) of:

(a) the Participant’s Contribution Percentage Amounts [as defined at (c)-(f)] for a Plan Year, to

(b) the Participant’s Compensation for such Plan Year. [Unless otherwise specified in the Adoption Agreement, Compensation will only include amounts for the period during which the Employee was eligible to participate.]

Contribution Percentage Amounts on behalf of any Participant shall include:

(c) the amount of Voluntary After-tax Contributions, Required After-tax Contributions, Matching Contributions (except to the extent such Matching Contributions may be disregarded in accordance with IRS Notice 98-1), and Qualified Matching Contributions (to the extent not taken into account for purposes of the ADP test) made under the Plan on behalf of the Participant for the Plan Year,

(d) forfeitures of Excess Aggregate Contributions or Matching Contributions allocated to the Participant’s account which shall be taken into account in the year in which such forfeiture is allocated,

(e) at the election of the Employer, Qualified Non-Elective Contributions, and

(f) the Employer may elect to use Elective Deferrals or Xxxx Elective Deferrals in the Contribution Percentage Amounts as long as the ADP test is met before the Elective Deferrals or Xxxx Elective Deferrals are used in the ACP test and continues to be met following the exclusion of those Elective Deferrals or Xxxx Elective Deferrals that are used to meet the ACP test.

Contribution amounts shall not include Matching Contributions, whether or not Qualified, that are forfeited either to correct Excess Aggregate Contributions, or because the contributions to which they relate are Excess Deferrals, Excess Contributions, or Excess Aggregate Contributions.

1.2 Actual Deferral Percentage (ADP)

For a specified group of Participants (either Highly Compensated Employees or Non-Highly Compensated Employees) for a Plan Year, the average of the ratios (calculated separately for each Participant in such group) of:

(a) the amount of Employer contributions [as defined at (c) – (d)] actually contributed to the Trust on behalf of such Participant for the Plan Year, to

(b) the Participant’s Compensation for such Plan Year. [Unless otherwise specified in the Adoption Agreement, Compensation will only include amounts received for the period during which the Employee was eligible to participate.]

Employer contributions on behalf of any Participant shall include:

(c) any Elective Deferrals or Xxxx Elective Deferrals (other than Catch-Up Contributions) made pursuant to the Participant’s Salary Deferral Agreement, including Excess Elective Deferrals or Xxxx Elective Deferrals of Highly Compensated Employees, but excluding Excess Elective Deferrals or Xxxx Elective Deferrals distributed to Non-Highly Compensated Employees and Elective Deferrals or Xxxx Elective Deferrals that are either taken into account in the Actual Contribution Percentage test (provided the ADP test is satisfied both with and without exclusion of these Elective Deferrals) or are returned as excess Annual Additions, and

(d) at the election of the Employer, Qualified Non-Elective Contributions and Qualified Matching Contributions.

For purposes of computing Actual Deferral Percentages, an eligible Employee who fails to make Elective Deferrals shall be treated as a Participant on whose behalf no Elective Deferrals are made.

1.3 Adoption Agreement

The document attached to this Plan by which an Employer elects the terms and conditions of a Qualified Plan established under this Basic Plan Document #01. A Standardized Adoption Agreement used in conjunction with this Basic Plan Document #01 establishes a Plan that meets the requirements of Section 4.10 of Revenue Procedure 2005-16. A Nonstandardized Adoption Agreement used in conjunction with this Basic Plan Document #01 establishes a Plan that does not meet the definition of a Standardized Plan.

1.4 Aggregate Limit

For Plan Years beginning before 2002 only, the sum of:

(a) 125% of the greater of the Average Deferral Percentage of the Non-Highly Compensated Employees for the Prior Plan Year or the Average Contribution Percentage of Non-Highly Compensated Employees under the Plan subject to Code Section 401(m) for the Plan Year beginning with or within the Prior Plan Year, and

(b) the lesser of 200% or two percent plus the lesser of such ADP or ACP.

Alternatively, the Aggregate Limit can be determined by substituting “the lesser of 200% or two percent plus“ for “125% of” in (a) above, and substituting “125% of” for “the lesser of 200% or two percent plus” in (b) above if it would result in a larger Aggregate Limit.

If the Employer has elected in the Adoption Agreement to use the Current Year Testing Method, then, in calculating the Aggregate Limit for a particular Plan Year, the Non-Highly Compensated Employees’ ADP and ACP for that Plan Year, instead of the prior Plan Year, is used.

1.5 Allocation Date(s)

The date or dates on which Participant recordkeeping accounts are adjusted to reflect account activity including but not limited to contributions, loan distributions, Hardship withdrawals, as well as earnings activity including but not limited to income, capital gains or market fluctuations in accordance with Article V hereof. Unless the Plan Administrator in a uniform and nondiscriminatory manner designates otherwise, all allocations for a particular Plan Year will be made as of the Valuation Date of that Plan Year.

1.6 Annual Additions

The sum of the following amounts credited to a Participant’s account for the Limitation Year:

(a) Employer contributions (under Article III),

(b) Employee contributions (under Article IV),

(d) Employer allocations under a Simplified Employee Pension Plan,

(e) amounts allocated after March 31, 1984, to an individual medical account as defined in Code Section 415(l)(2), which is part of a pension or annuity plan maintained by the Employer (these amounts are treated as Annual Additions to a Defined Contribution Plan though they arise under a Defined Benefit Plan), and

(f) amounts derived from contributions paid or accrued after 1985, in taxable years ending after 1985, which are either attributable to post-retirement medical benefits allocated to the separate account of a Key Employee or to a Welfare Benefit Fund [as defined in Code Section 419(e)] maintained by the Employer. For purposes of this paragraph, an Employee is a Key Employee if he or she meets the requirements of paragraph 1.59 at any time during the Plan Year or any preceding Plan Year.

For purposes of applying the limitations of Code Section 415, the transfer of funds from one Qualified Plan to another is not considered an Annual Addition. The following are not Employee contributions for the purposes of Annual Additions:

(g) Rollover Contributions [as defined in Code Sections 402(e)(6), 403(a)(4), 403(b)(8) and 408(d)(3)];

(h) repayments of loans made to a Participant from the Plan;

(i) repayments of distributions received by an Employee pursuant to Code Section 411(a)(7)(B) (cash-outs);

(j) repayments of distributions received by an Employee pursuant to Code Section 411(a)(3)(D) (mandatory contributions); and

(k) Employee contributions to a Simplified Employee Pension Plan excludible from gross income under Code Section 408(k)(6).

Employee and Employer make-up contributions under USERRA received during the current Limitation Year shall be treated as Annual Additions with respect to the Limitation Year to which the make-up contributions are attributable. Excess Amounts applied in a Limitation Year to reduce Employer contributions will be considered Annual Additions for such Limitation Year, pursuant to the provisions of Article X.

1.7 Annuity Starting Date

The first day of the first period for which an amount is paid as an annuity or in the case of a benefit not payable as an annuity, the first day all events have occurred which entitle the Participant to such benefit.

1.8 Applicable Calendar Year

The First Distribution Calendar Year and each such succeeding calendar year. If payments commence in accordance with paragraph 7.6 before the Required Beginning Date, the Applicable Calendar Year is the year such payments commence. If distribution is in the form of an immediate annuity purchased after the Participant’s death with the Participant’s remaining interest, the Applicable Calendar Year is the year of purchase.

1.9 Applicable Life Expectancy

The life expectancy or joint and last survivor expectancy calculated using the attained age of the Participant or Beneficiary as of the Participant’s or Beneficiary’s birthday in the Applicable Calendar Year, reduced by one for each calendar year which has elapsed since the date life expectancy was first calculated.

1.10 Average Annual Compensation

Compensation as defined in paragraph 1.17, as elected in Section II(A) of either Standardized and Nonstandardized Target Benefit Adoption Agreement. If the Participant has fewer than three (3) years of participation in the Plan, Compensation is averaged over the Participant’s total period of participation.

1.11 Average Contribution Percentage (ACP)

The average of the Actual Contribution Percentages for the eligible Participants in a specified group of Participants for a Plan Year.

1.12 Average Deferral Percentage (ADP)

The average of the Actual Deferral Percentages for Participants in a specified group of Participants for a Plan Year.

1.13 Beneficiary

A “Beneficiary” is the recipient designated by the Participant to receive the Plan benefits payable upon the death of the Participant, or the recipient designated by a Beneficiary to receive any benefits which may be payable in the event of the Beneficiary’s death prior to receiving the entire death benefit to which the Beneficiary is entitled. A “Designated Beneficiary” is any individual designated or determined in accordance with Code Section 401(a)(9) and the Regulations issued thereunder, except that it shall not include any person who becomes a beneficiary by virtue of the laws of inheritance or intestate succession.

1.14 Break In Service

(a) If the Hours of Service method is used in determining either an Employee’s initial or continuing eligibility to participate in the Plan, or the nonforfeitable interest in the Employee’s account balance derived from Employer contributions, a Break in Service is a twelve (12) consecutive month period (during which the Employee has not completed more than five hundred (500) Hours of Service.

(b) For purposes of determining whether a Break in Service has occurred in a particular computation period, an Employee who is absent from work for maternity or paternity reasons shall receive credit for Hours of Service which would otherwise have been credited to such Employee but for such absence, or in any case in which such hours cannot be determined, with eight (8) Hours of Service per day of such absence. The Hours of Service to be so credited shall be credited in the computation period in which the absence begins if the crediting is necessary to prevent a Break in Service in that period or, in all other cases, in the following computation periods.

(c) With respect to determinations based on the Elapsed Time method, a Break in Service is a severance period of twelve (12) or more consecutive months. In the case of an Employee who is absent from work for maternity or paternity reasons, the twelve (12) consecutive month period beginning on the first anniversary of the first day of such absence shall not constitute a Break in Service.

(d) Notwithstanding the foregoing, in the case of an Employee who is absent from work beyond the first anniversary of the first day of absence from work for maternity or paternity reasons, such period begins on the second anniversary of the first day of such absence. The period between the first and second anniversaries of said first day of absence from work is neither a Period of Service for which the Employee will receive credit nor is such period a Break in Service. For purposes of this paragraph, an absence from work for maternity or paternity reasons means an absence (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) An Employer adopting the Elapsed Time method is required to credit periods of Service and, under the Service spanning rules, certain periods of severance of twelve (12) months or less. Under the first Service spanning rule, if an Employee xxxxxx from Service as a result of resignation, discharge or retirement and then returns to Service within twelve (12) months, the Period of Severance is required to be taken into account. A situation may arise in which an Employee is absent from Service for any reason other than resignation, discharge, retirement and during the absence a resignation, discharge or retirement occurs. The second Service spanning rule provides that, under such circumstances, the Plan is required to take into account the period of time between the severance from Service date (i.e., the date of resignation, discharge or retirement) and the first anniversary of the date on which the Employee was first absent, if the Employee returns to Service on or before such first anniversary date.

1.15 Catch-Up Contributions

Catch-Up Contributions are Elective Deferrals made to the Plan that are in excess of any otherwise applicable Plan limit that are made by Participants who are age fifty (50) or older (by the end of their tax year). An otherwise applicable Plan limit is a limit in the Plan that applies to Elective Deferrals or Xxxx Elective Deferrals without regard to Catch-Up Contributions, such as the limit on Annual Additions, the dollar limitation on Elective Deferrals or Xxxx Elective Deferrals under Code Section 402(g) (not counting Catch-Up Contributions) and the limit imposed by the Actual Deferral Percentage (ADP) Test under Code Section 401(k)(3). Catch-Up Contributions for a Participant for a taxable year may not exceed the dollar limit on Catch-Up Contributions under Code Section 414(v)(2)(B)(i) for the taxable year or when added to other Elective Deferrals or Xxxx Elective Deferrals, 75% (or the amount elected on the Adoption Agreement) of the Participant’s Compensation for the taxable year. The dollar limit on Catch-Up Contributions under Code Section 414(v)(2)(B)(i) is $1,000 for taxable years beginning in 2002, increasing by $1,000 for each year thereafter up to $5,000 for taxable years beginning in 2006 and later. Different limits apply to Catch-Up Contributions under SIMPLE 401(k) Plans. For taxable years beginning in 2002, the limit is $500, and increases each year thereafter in $500 increments until it reaches $2,500 in 2006. After 2006, the $5,000 limit and $2,500 limit respectively, will be adjusted by the Secretary of the Treasury for cost-of-living increases under Code Section 414(v)(2)(C) in multiples of $500.

Catch-Up Contributions are not subject to the limit on Annual Additions, are not counted in the ADP Test and are not counted in determining the minimum allocation under Code Section 416 (but Catch-Up Contributions made in prior years are counted in determining whether the Plan is Top-Heavy). Provisions in the Plan relating to Catch-Up Contributions apply to Elective Deferrals or Xxxx Elective Deferrals made after 2001.

1.16 Code

The Internal Revenue Code of 1986, including any amendments thereto. Reference to any section or subsection of the Code, includes reference to any comparable or succeeding provisions of any legislation which amends, supplements or replaces such section or subsection, and also includes reference to any Regulation issued pursuant to or with respect to such section or subsection.

1.17 Compensation

The Employer may select one of the following three safe harbor definitions of Compensation in the Adoption Agreement. The definition of Compensation for Employers who adopt a plan established under a Standardized Adoption Agreement, plans that provide permitted disparity (other than the CODA portion of these plans), Target Benefit Plans, and for Employers determining top-heavy minimum contributions, must be one of the three safe harbor definitions of Compensation. In a Nonstandardized Adoption Agreement, the Employer may modify the definition of Compensation provided that such definition, as modified, satisfies the provisions of Code Sections 414(s) and 401(a)(4). Compensation will also include Compensation provided by the Employer through another employer or entity under the provisions of Code Sections 3121 and 3306.

(a) Code Section 3401(a) Wages – All remuneration received by an Employee for services performed for the Employer which are subject to Federal income tax withholding at the source. Unless elected otherwise in the Adoption Agreement, Compensation shall include any amount deferred under a Salary Deferral Agreement which is not includible in the gross income of a Participant under Code Section 125 in connection with a cafeteria plan, Code Section 402(e)(3) in connection with a cash or deferred plan, Code Section 402(h)(1)(B) in connection with a Simplified Employee Pension Plan, Code Section 401(k) in connection with a SIMPLE Retirement Account, Code Section 457 in connection with a Plan maintained under said Section, and Code Section 403(b) in connection with a tax-sheltered annuity plan. Wages are determined without regard to any rules that limit the remuneration included in wages based on the nature or location of the employment or the services performed [such as the exception for agricultural labor in Code Section 3401(a)(2)]. For Limitation Years beginning after December 31, 1997, for purposes of applying the limitations of this paragraph, Compensation paid or made available during such Limitation Year shall include any Elective Deferral [as defined in Code Section 402(g)(3)] or Xxxx Elective Deferrals, and any amount which is contributed or deferred by the Employer at the election of the Employee and which is not includible in the gross income of the Employee by reason of Code Sections 125, 132(f)(4), 402(e)(3), 402(h)(1), 403(b), or 457.

(b) Code Sections 6041, 6051 And 6052 Reportable Wages – All remuneration received by an Employee for services performed for the Employer that is required to be reported on Form W-2. Unless otherwise elected in the Adoption Agreement, Compensation shall include any amount deferred under a Salary Deferral Agreement which is not includible in the gross income of a Participant under Code Section 125 in connection with a cafeteria plan, Code Section 402(e)(3) in connection with a cash or deferred plan, Code Section 402(h)(1)(B) in connection with a Simplified Employee Pension Plan, and Code Section 403(b) in connection with a tax-sheltered annuity plan. A Participant’s wages include remuneration defined at subparagraph (a) above and all other remuneration paid to an Employee by the Employer (in the course of the Employer’s trade or business) for which the Employer is required to furnish the Employee a written statement under Code Sections 6041(d), 6051(a)(3) and 6052. Such amount must be determined without regard to any rules that limit the remuneration included in wages based on the nature or location of the employment or the services performed [such as the exception for agricultural labor in Code Section 3401(a)(2)]. For Limitation Years beginning after December 31, 1997, for purposes of applying the limitations of this paragraph, Compensation paid or made available during such Limitation Year shall include any Elective Deferral [as defined in Code Section 402(g)(3)] or Xxxx Elective Deferrals, and any amount which is contributed or deferred by the Employer at the election of the Employee and which is not includible in the gross income of the Employee by reason of Code Sections 125, 132(f)(4), 402(e)(3), 402(h)(1), 403(b), or 457.

(c) Code Section 415 Compensation – A Participant’s Earned Income, wages, salaries, and fees for professional services and other amounts received, without regard to whether or not an amount is paid in cash, for personal services actually rendered in the course of employment with the Employer maintaining the Plan. Compensation includes, but is not limited to, commissions paid salesmen, Compensation for services on the basis of a percentage of profits, commissions on insurance premiums, tips, bonuses, fringe benefits and reimbursements or other expense allowances under a non-accountable plan [as described in Regulation Section 1.62-2(c)]. Compensation excludes the following:

(1) Employer contributions made under the terms of a Salary Deferral Agreement between an Employee and the Employer to a plan of deferred compensation which are not includible in the Employee’s gross income for the taxable year in which contributed. Such contributions shall include any amount deferred under Code Section 125 in connection with a cafeteria plan, Code Section 402(e)(3) in connection with a cash or deferred plan [Elective Deferrals as defined in Code Section 402(g) or Xxxx Elective Deferrals], Code Section 402(h)(1)(B) in connection with a Simplified Employee Pension Plan, Code Section 402(k) in connection with a SIMPLE Retirement Account, Code Section 132(f)(4) amounts (which prior to January 1, 1998 had been excluded), Code Section 457 in connection with a Plan maintained under said Section, and Code Section 403(b) in connection with a tax-sheltered annuity plan,

(2) Employer contributions made to a Plan of deferred Compensation which are not includible in the Employee’s gross income for the taxable year in which contributed, or Employer contributions under a Simplified Employee Pension Plan, or any distributions from a Plan of deferred Compensation,

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

(4) amounts realized from the sale, exchange or other disposition of stock acquired under a qualified stock option,

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

(6) amounts paid after severance from employment [as defined in Code Section 401(k)] generally would not be treated as Code Section 415(c)(3) unless payment is made within 2½ months following the Participant’s severance and is payment that would otherwise have been made while the Participant was employed such as regular, overtime, shift differential pay, commissions, bonuses and other similar Compensation, and payments for accrued bona fide sick pay, vacation, or other leave (but only if the Participant would have been able to use the leave if employment had continued). This provision is applicable no earlier than the 2005 Limitation Year. If elected by the Employer on the Adoption Agreement, post-severance compensation may be excluded from the definition of Compensation.

Unless otherwise specified by the Employer in the Adoption Agreement, Compensation shall be determined as provided in Code Section 3401(a) [paragraph (a) above]. Notwithstanding the foregoing, the Compensation of a Participant who is a sole proprietor, partner or a member of a limited liability corporation (LLC) shall be determined under Code Section 415. The definition of Compensation used in nondiscrimination testing (ADP/ACP Testing) will be elected by the Employer in the Adoption Agreement. Unless indicated otherwise in the Adoption Agreement, Code Section 3401(a) Compensation paid during a Plan Year while a Participant will be used in the ADP/ACP Tests. Notwithstanding any other provision to the contrary, if the Plan is an amendment and restatement of a Qualified Plan, for Plan Years ending prior to the Plan Year in which the amendment or restatement is adopted, Compensation shall have the meaning set forth in the Qualified Plan prior to its amendment.

Exclusions From Compensation A Participant’s Compensation shall be determined in accordance with paragraph (a), (b) or (c) above and shall not exclude any item of income unless provided in the definition or elected by the Employer in the Adoption Agreement.

Annual Additions And Top-Heavy Rules For purposes of Article X and XIV, Compensation shall be Code Section 415 Compensation as described in paragraph 1.17(c). Compensation includes amounts deferred under a plan of deferred compensation as described at paragraph 1.17(c)(1). For purposes of applying the limitations of Article X, Compensation for a Limitation Year is the Compensation actually paid or made available during such Limitation Year. For Limitation Years beginning after December 31, 1997, for purposes of applying the limitations of this paragraph, Compensation paid or made available during such Limitation Year shall include any Elective Deferral [as defined in Code Section 402(g)(3)] or Xxxx Elective Deferrals, and any amount which is contributed or deferred by the Employer at the election of the Employee and which is not includible in the gross income of the Employee by reason of Code Sections 125, 132(f)(4), 402(e)(3), 402(h)(1)(B), 403(b) or 457.

If the Plan is or becomes Top-Heavy in any Plan Year beginning after December 31, 1983, the provisions of Article XIV will supersede any conflicting provisions in the Basic Plan Document #01 or Adoption Agreement. Earned Income means net earnings from self-employment in the trade or business with respect to which the Plan is established for which personal services of the individual are a material income-producing factor. Net earnings will be determined without regard to items not included in gross income and the deductions allocable to such items. Net earnings are reduced by contributions by the Employer to a Qualified Plan to the extent deductible under Code Section 404.

Net earnings shall be determined with regard to the deduction allowed to the taxpayer by Code Section 164(f) for taxable years beginning after December 31, 1989.

Contributions Made On Behalf Of Disabled Participants Compensation with respect to a Participant in a Defined Contribution Plan who is permanently and totally disabled [as defined in Code Section 22(e)(3)] is the Compensation such Participant would have received for the Limitation Year if the Participant had been paid at the rate of Compensation paid immediately before becoming permanently and totally disabled; for Limitation Years beginning before January 1, 1997, but not for Limitation Years beginning after December 31, 1996, such imputed Compensation for the disabled Participant may be taken into account only if the Participant is not a Highly Compensated Employee (defined at paragraph 1.56) and contributions made on behalf of such Participant are nonforfeitable when made. Compensation will mean Compensation as that term is defined in this paragraph.

Highly Compensated And Key Employees For purposes of paragraphs 1.56 and 1.59, Compensation shall be Code Section 415 Compensation as described in paragraph 1.17(c). Such definition shall include any amount deferred under Code Section 125 in connection with a cafeteria plan, Code Section 132(f)(4) or Code Section 402(e)(3) in connection with a cash or deferred plan, Code Section 402(h)(1)(B) in connection with a Simplified Employee Pension Plan, Code Section 402(k) in connection with a SIMPLE Retirement Account (SIMPLE), Code Section 457 in connection with a Plan maintained under said Section, and Code Section 403(b) in connection with a tax-sheltered annuity plan. The Employer, if elected in the Adoption Agreement, may limit Compensation considered for purposes of the Plan for these Participants.

Computation Period The Plan Year, while eligible to participate, shall be the computation period for purposes of determining a Participant’s Compensation, unless the Employer selects a different computation period in the Adoption Agreement.

Limitation On Compensation The annual Compensation of each Participant which may be taken into account for determining all benefits provided under the Plan for any year, shall not exceed the limitation as imposed by Code Section 401(a)(17), as adjusted under Code Section 401(a)(17)(B). If a Plan has a Plan Year that contains fewer than twelve (12) calendar months, the annual Compensation limit for that period is an amount equal to the limitation as imposed by Code Section 401(a)(17) as adjusted for the calendar year in which the Compensation period begins, multiplied by a fraction, the numerator of which is the number of full months in the short Plan Year and the denominator of which is twelve (12).

For Plan Years beginning on or after January 1, 1994, and before January 1, 2002, the annual Compensation of each Participant taken into account for determining all benefits provided under the Plan for any Plan Year shall not exceed $150,000, as adjusted for increases in the cost-of-living in accordance with Code Section 401(a)(17)(B) of the Internal Revenue Code, the cost-of-living adjustment in effect for a calendar year applies to any determination period beginning in such calendar year.

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

USERRA For purposes of Employee and Employer make-up contributions, Compensation during the period of military service shall be deemed to be the Compensation the Employee would have received during such period if the Employee were not in qualified military service, based on the rate of pay the Employee would have received from the Employer but for the absence due to military leave. If the Compensation the Employee would have received during the leave is not reasonably certain, Compensation will be equal to the Employee’s average Compensation from the Employer during the twelve (12) month period immediately preceding the military leave or, if shorter, the Employee’s actual period of employment with the Employer.

Definition of Compensation for Purposes of Safe Harbor CODA Provisions Compensation for the purposes of a Safe Harbor CODA is defined in this paragraph 1.17. No dollar limit other than the limit imposed by Code Section 401(a)(17) applies to the Compensation of a Non-Highly Compensated Employee. For purposes of determining the Compensation subject to a Participant’s salary deferral election, the Employer may use an alternative definition to the one described above provided such alternative definition is a reasonable definition of Compensation within the meaning of Section 1.414(s)-1(d)(2) of the Regulations and permits each Participant to contribute sufficient Elective Deferrals or Xxxx Elective Deferrals to receive the maximum amount of Matching Contributions (determined using the definition of Compensation described above) available to the Participant under the Plan.

Definition Of Compensation For Purposes Of 401(k) SIMPLE Provisions For purposes of paragraphs 1.38, 3.3, and 4.8, Compensation is the sum of the wages, tips and other compensation from the Employer subject to Federal income tax withholding [as described in Code Section 6051(a)(3)] and the Employee’s salary reduction contributions made under Code Section 125 in connection with a cafeteria plan, Code Section 402(e)(3) in connection with a cash or deferred plan, Code Section 402(h)(1)(B) in connection with a Simplified Employee Pension Plan, Code Section 402(k) in connection with a SIMPLE Retirement Account, Code Section 457 in connection with a plan maintained under said Section and Code Section 403(b) in connection with a tax-sheltered annuity plan, required to be reported by the Employer on Form W-2 [as described in Code Section 6051(a)(8)]. For self-employed individuals, Compensation means net earnings from self-employment determined under Code Section 1402(a) prior to subtracting any contributions made to this Plan on behalf of any Employee. The provisions of the Plan implementing the limit on Compensation under Code Section 401(a)(17) apply to the Compensation under paragraph 4.8.

Code Section 125 Arrangements If elected in the Adoption Agreement amounts under Code Section 125 include any amounts not available to a Participant in cash in lieu of group health coverage because the Participant is unable to certify that he or she has other health coverage (deemed Code Section 125 Compensation). An amount will be treated as an amount under Code Section 125 only if the Employer does not request or collect information regarding the Participant’s other health coverage as part of the enrollment process for the health plan. The use of this definition of Compensation will generally also apply to the definition of Compensation for purposes of Code Section 414(s) unless the Plan otherwise specifically excludes all amounts described in Code Section 414(s)(2).

If no election is made on the Adoption Agreement the Plan will exclude deemed Code Section 125 Compensation for purposes of the definition of Compensation.

1.18 Custodian

The institution or institutions (who may be the Sponsor or an affiliate) and any successors or assigns thereto, named in the Adoption Agreement, to hold the assets of the Plan as provided at paragraph 13.1 herein.

1.19 Xxxxx-Xxxxx Act

The Xxxxx-Xxxxx Act found at 40 U.S.C. Section 276(a) et seq., as may be amended from time to time.

1.20 Days of Service

A method of crediting Service with the Employer whereby an Employee receives credit for a Day of Service for any calendar day in which he or she provides Service to the Employer.

1.21 Defined Benefit Plan

A plan under which a Participant's benefit is determined by a formula contained in the plan and no Employee accounts are maintained for Participants.

1.22 Defined Benefit (Plan) Fraction

For Limitation Years beginning before January 1, 2000, a fraction, the numerator of which is the sum of the Participant's Projected Annual Benefits under all the Defined Benefit Plans (whether or not terminated) maintained by the Employer, and the denominator of which is the lesser of 125% of the dollar limitation determined for the Limitation Year under Code Sections 415(b) and (d) or 140% of the Highest Average Compensation, including any adjustments under Code Section 415(b).

Transitional Rule If an Employee was a Participant as of the first day of the first Limitation Year beginning after 1986, in one or more Defined Benefit Plans maintained by the Employer which were in existence on May 6, 1986, the denominator of this fraction will not be less than 125% of the sum of the annual benefits under such Plans which the Participant had accrued as of the close of the last Limitation Year beginning before 1987, disregarding any changes in the terms and conditions of the Plan after May 5, 1986. The preceding sentence applies only if the Defined Benefit Plans individually and in the aggregate satisfied the requirements of Code Section 415 for all Limitation Years beginning before 1987.

1.23 Defined Contribution Dollar Limitation

This limit is forty thousand dollars ($40,000) as adjusted by the Secretary of the Treasury for increases in the cost-of-living. This limitation shall be adjusted by the Secretary at the same time and in the same manner as under Code Section 415(d). Such increases will be in multiples of five thousand dollars ($5,000).

1.24 Defined Contribution Plan

A plan under which Employee accounts are maintained for each Participant to which all contributions, forfeitures, investment income and gains or losses, and expenses are credited or deducted. A Participant's benefit under such plan is based solely on the fair market value of his or her account balance.

1.25 Defined Contribution (Plan) Fraction

For Limitation Years beginning before January 1, 2000, a fraction, the numerator of which is the sum of the Annual Additions to the Participant's account under all the Defined Contribution Plans (whether or not terminated) maintained by the Employer for the current and all prior Limitation Years (including the Annual Additions attributable to the Participant's nondeductible Employee contributions to all Defined Benefit Plans, whether or not terminated, maintained by the Employer, and the Annual Additions attributable to all Welfare Benefit Funds as defined in paragraph 1.121, individual medical accounts as defined in Code Section 415(l)(2) and Simplified Employee Pension Plans as defined in paragraph 1.105, maintained by the Employer), and the denominator of which is the sum of the maximum aggregate amounts for the current and all prior Limitation Years of Service with the Employer (regardless of whether a Defined Contribution Plan was maintained by the Employer). The maximum aggregate amount in the Limitation Year is the lesser of 125% of the dollar limitation determined under Code Sections 415(b) and (d) in effect under Code Section 415(c)(1)(A) or 35% of the Participant's Compensation for such year.

Transitional Rule If an Employee was a Participant as of the end of the first day of the first Limitation Year beginning after 1986, in one or more Defined Contribution Plans maintained by the Employer which were in existence on May 6, 1986, the numerator of this fraction will be adjusted if the sum of this fraction and the Defined Benefit Fraction would otherwise exceed 1.0 under the terms of this Plan. Under the adjustment, an amount equal to the product of the excess of the sum of the fractions over 1.0 multiplied by the denominator of this fraction, will be permanently subtracted from the numerator of this fraction. The adjustment is calculated using the fractions as they would be computed as of the end of the last Limitation Year beginning before 1987, and disregarding any changes in the terms and conditions of the Plan made after May 6, 1986, but using the Code Section 415 limitation applicable to the first Limitation Year beginning on or after January 1, 1987. The Annual Addition for any Limitation Year beginning before 1987, shall not be re-computed to treat all Employee contributions as Annual Additions.

1.26 Designated Beneficiary

The individual who is designated as the Beneficiary under paragraph 1.13 and who is the Designated Beneficiary under Code Section 401(a)(9) and Section 1.401(a)(9)-1 of the Treasury Regulations.

1.27 Direct Rollover

A payment made by the Plan to an Eligible Retirement Plan that is specified by the distributee or a payment received by the Plan from an Eligible Retirement Plan on behalf of a Participant or an Employee, if selected in the Adoption Agreement by the Employer. A Direct Rollover from a Xxxx Elective Deferral account under a qualified cash or deferred arrangement may only be made to another designated Xxxx account under an applicable retirement plan described in Code Section 402A(e)(1) or to a Xxxx XXX described in Code Section 408A, and only to the extent the rollover is permitted under the rules of Code Section 402(c). Moreover, a Plan is permitted to treat the balance of the Participant’s designated Xxxx account and the Participant’s other accounts under the Plan as accounts held under two separate Plans [within the meaning of Section 414(I)] for purposes of applying the special rule in A-11 of §1.401(a)(31)-1 [under which a Plan will satisfy Code Section 401(a)(31) even though the Plan Administrator does not permit any distributee to elect a Direct Rollover with respect to Eligible Rollover Distributions during a year that are reasonably expected to total less than $200].

1.28 Disability

Unless the Employer has elected a different definition in the Adoption Agreement, Disability is defined as an illness or injury of a potentially permanent nature, expected to last for a continuous period of not less than twelve (12) months or can be expected to result in death, as certified by a physician satisfactory to the Employer, which prevents the Participant from engaging in any occupation for wage or profit for which the Employee is reasonably fitted by training, education or experience. If elected by the Employer in the Adoption Agreement, nonforfeitable contributions will be made to the Plan on behalf of each disabled Participant who is not a Highly Compensated Employee (as defined at paragraph 1.56). Compensation for purposes of calculating the contribution will mean Compensation as defined at paragraph 1.17 herein.

1.29 Distribution Calendar Year (Valuation Calendar Year)

A calendar year for which a minimum distribution is required. For distributions beginning before the Participant’s death, the First Distribution Calendar Year is the calendar year immediately preceding the calendar year which contains the Participant’s Required Beginning Date. For distributions beginning after the Participant’s death, the First Distribution Calendar Year is the calendar year in which distributions are required to begin under paragraph 7.6. 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.

1.30 Early Retirement Age

The age set by the Employer in the Adoption Agreement, not less than age fifty-five (55), at which a Participant becomes fully vested and is eligible to retire and receive his or her benefits under the Plan.

1.31 Early Retirement Date

The date as selected in the Adoption Agreement on which a Participant or former Participant has satisfied the Early Retirement Age requirements. If no election is made on the Adoption Agreement, it shall mean the date on which a Participant attains his or her Early Retirement Age.

A former Participant who has separated from Service after satisfying any service requirement but before satisfying the Early Retirement Age and who thereafter reaches the age requirement elected on the Adoption Agreement shall be entitled to receive benefits under the Plan (other than full vesting and any allocation of Employer contributions) as though the requirements for Early Retirement Age had been satisfied.

1.32 Earned Income

Net earnings from self-employment in the trade or business with respect to which the Plan is established, determined without regard to items not included in gross income and the deductions allocable to such items, provided that personal services of the individual are a material income-producing factor. Earned Income shall be reduced by contributions made by an Employer to a Qualified Plan to the extent deductible under Code Section 404. Net earnings shall be determined taking into account the deduction for one-half of self-employment taxes allowed to the taxpayer under Code Section 164(f), to the extent deductible for taxable years beginning after December 31, 1989.

1.33 Effective Date

The date on which the Employer's Plan or amendment to such Plan becomes effective. For amendments reflecting statutory and regulatory changes contained in the Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA), the Effective Date(s) of the applicable provisions of this legislation will be the earlier of the date upon which such amendment is first administratively applied or the first day of the Plan Year following the date of adoption of such amendment or adoption of the Prototype Plan.

The Effective Date for Elective Deferrals and Xxxx Elective Deferrals provisions is the date the provisions are actually adopted. In no event may the Effective Date for Xxxx Elective Deferrals be earlier than January 1, 2006.

1.34 Elapsed Time

For purposes of determining an Employee's initial or continued eligibility to participate in the Plan or the nonforfeitable interest in the Participant's account balance derived from Employer contributions, an Employee will receive credit for the aggregate of all time period(s) commencing with the Employee's first day of employment or reemployment and ending on the date a Break in Service begins. The first day of employment or reemployment is the first day the Employee performs an Hour of Service. An Employee will also receive credit for any Period of Severance of less than twelve (12) consecutive months. Fractional periods of a year will be expressed in terms of days.

For purposes of this section, Hour of Service shall mean each hour for which an Employee is paid or entitled to payment for the performance of duties for the Employer.

A Break in Service is a Period of Severance of at least twelve (12) consecutive months. A Period of Severance is a continuous period of time during which the Employee is not employed by the Employer. Such period begins on the date the Employee retires, quits or is discharged, or if earlier, the twelve (12) month anniversary of the date on which the Employee was otherwise first absent from service.

In the case of an individual who is absent from work for maternity or paternity reasons, the twelve (12) consecutive month period beginning on the first anniversary of the first date of such absence shall not constitute a Break in Service. For purposes of this paragraph, an absence from work for maternity or paternity reasons means an absence:

(a)

by reason of the pregnancy of the individual,

(b)

by reason of the birth of a child of the individual,

(c) by reason of the placement of a child with the individual in connection with the adoption of such child by such individual, or

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

Each Employee will share in Employer contributions for the period beginning on the date the Employee commences participation under the Plan and ending on the date on which such Employee xxxxxx employment with the Employer or is no longer a member of an eligible class of Employees.

If the Employer is a member of an affiliated service group [under Code Section 414(m)], a controlled group of corporations [under Code Section 414(b)], a group of trades or business under common control [under Code Section 414(c)] or any other entity required to be aggregated with the Employer pursuant to Code Section 414(o), Service will be credited for any period of employment with any other member of such group. Service will also be credited for any individual required under Code Section 414(n) or Code Section 414(o) to be considered an Employee of any Employer aggregated under Code Sections 414(b), (c) or (m).

1.35 Election Period

The period which begins on the first day of the Plan Year in which the Participant attains age thirty-five (35) and ends on the date of the Participant's death. If a Participant separates from Service prior to the first day of the Plan Year in which age thirty-five (35) is attained, the Election Period shall begin on the date of separation, with respect to the account balance as of the date of separation.

1.36 Elective Deferrals

For taxable years beginning after 2005, the term “Elective Deferrals” includes pre-tax Elective Deferrals and Xxxx Elective Deferrals. Pre-tax Elective Deferrals are a Participant’s Elective Deferrals that are not includible in the Participant’s gross income at the time deferred. Elective Deferrals are Employer contributions in lieu of cash Compensation made to the Plan on behalf of the Participant pursuant to a Salary Deferral Agreement or other deferral mechanism. With respect to any taxable year, a Participant's Elective Deferral is the sum of all Employer contributions made on behalf of such Participant pursuant to an election to defer under any qualified cash or deferred arrangement as described in Code Section 401(k), any Simplified Employee Pension Plan with a cash or deferred arrangement as described in Code Section 408(k)(6), any SIMPLE IRA Plan described in Code Section 408(p), any plan as described under Code Section 501(c)(18), and any Employer contributions made on behalf of a Participant for the purchase of an annuity contract under Code Section 403(b) pursuant to a Salary Deferral Agreement. Elective Deferrals or Xxxx Elective Deferrals shall not include any deferrals properly distributed as Excess Annual Additions.

1.37 Eligible Employee

For purposes of the SIMPLE 401(k) Plan provisions, any Employee who is entitled to make Elective Deferrals under the terms of the SIMPLE 401(k) Plan.

1.38 Eligible Employer

For purposes of the SIMPLE 401(k) Plan provisions, an Eligible Employer means with respect to any Plan Year, an Employer who had no more than one hundred (100) Employees who received at least $5,000 of Compensation from the Employer for the preceding year. In applying the preceding sentence, all Employees of controlled groups of corporations under Code Section 414(b), all Employees of trades or businesses (whether incorporated or not) under common control under Code Section 414(c), all Employees of affiliated service groups under Code Section 414(m), and Leased Employees required to be treated as the Employer’s Employees under Code Section 414(n), are taken into account.

An Eligible Employer who elects to have the SIMPLE 401(k) Plan provisions apply to the Plan and fails to continue to qualify as an Eligible Employer for any subsequent year, is treated as an Eligible Employer for the two (2) years following the last year during which the employer was an Eligible Employer. If the failure is due to any acquisition, disposition, or similar transaction involving an Eligible Employer, the preceding sentence shall apply only if the provisions of Code Section 410(b)(6)(C)(i) are satisfied.

1.39 Eligible Participant

Any Employee who is eligible to make a Voluntary or Required After-tax Contribution or an Elective Deferral or Xxxx Elective Deferral (if the Employer takes such contributions into account in the calculation of the Actual Contribution Percentage), or to receive a Matching Contribution (including forfeitures) or a Qualified Matching Contribution. If a Required After-tax Contribution is required as a condition of participation in the Plan, any Employee who would be a Participant in the Plan if such Employee made such a contribution shall be treated as an Eligible Participant even though no Employee contributions are made.

1.40 Eligible Retirement Plan

An Eligible Retirement Plan is an eligible Plan under Code Section 457(b) that is maintained by a state, political subdivision of a state, or any agency or instrumentality of a state or political subdivision of a state and which agrees to separately account for amounts transferred into such Plan from this Plan, an individual retirement account described in Code Section 408(a), an individual retirement annuity described in Code Section 408(b) an annuity plan described in Code Section 403(a), an annuity contract described in Code Section 403(b), or a Qualified Plan described in Code Section 401(a), which accepts the distributee’s Eligible Rollover Distribution. The definition of Eligible Retirement Plan shall also apply in the case of a distribution to a Surviving Spouse, or to a Spouse or former Spouse who is the alternate payee under a Qualified Domestic Relations Order, as defined in Code Section 414(p). If any portion of an Eligible Rollover Distribution is attributable to payments or distributions from a designated Xxxx account, an Eligible Retirement Plan with respect to such portion shall include only another designated Xxxx account of the individual from whose account the payments or distributions were made, or a Xxxx XXX of such individual.

1.41 Eligible Rollover Distribution

An Eligible Rollover Distribution is any distribution of all or any portion of the balance to the credit of the Participant except that an Eligible Rollover Distribution does not include:

(a) any distribution that is one of a series of substantially equal periodic payments made not less frequently than annually for the life (or life expectancy) of the Participant or the joint lives (or joint life expectancies) of the Participant and the Participant's Beneficiary, or for a specified period of ten (10) years or more,

(b) any distribution to the extent such distribution is required under Code Section 401(a)(9),

(c) any Hardship withdrawal distribution under Code Section 401(k)(2)(B)(i)(IV) received after December 31, 1998, (or if elected by the Employer in accordance with IRS Notice 99-5, received after December 31, 1999).

(d) the portion of any distribution that would not be includible in gross income if paid to the Participant (determined without regard to the exclusion for net unrealized appreciation with respect to Employer securities),

(e) any excess amounts that is returned to a Participant in accordance with paragraphs 10.3, 11.8, 11.9 and 11.10,

(f) any other distribution(s) that is reasonably expected to total less than $200 during a year,

(g) any corrective distributions of Excess Elective Deferrals or Xxxx Elective Deferrals under Code Section 402(g), and the income allocable thereto,

(h) any corrective distributions of Excess Contributions and Excess Aggregate Contributions under Code Section 401(k) and Code Section 401(m), and the income allocable thereto,

(i) any PS 58 costs, and

(j) any dividends paid on securities under Code Section 404(k).

A portion of a distribution shall not fail to be an Eligible Rollover Distribution merely because the portion consists of after-tax Employee contributions which are not includible in gross income. However, such portion may be transferred only to an individual retirement account or annuity described in Code Section 408(a) or (b), or to a qualified defined contribution Plan described in Code Section 401(a) or 403(a) that agrees to separately account for amounts so transferred, including separately accounting for the portion of such distribution which is includible in gross income and the portion of such distribution which is not so includible.

1.42 Employee

The term Employee means (a) any person reported on the payroll records of the Employer as an Employee who is deemed by the Employer to be a common law Employee; (b) except for determining eligibility to participate in this Plan, any person reported on the payroll records of an affiliated Employer of the Employer or a participating Employer as an Employee who is deemed by the affiliated Employer to be a common law Employee, even if the affiliated Employer is not a participating Employer; (c) any Self-Employed Individual who derives Earned Income from the Employer; (d) any Owner-Employee; and (e) any person who is considered a Leased Employee but who (1) is not covered by a Plan described in Code Section 414(n)(5), or (2) is covered by a Plan described in Code Section 414(n)(5), but Leased Employees constitute more than twenty percent (20%) of the Employer’s non-highly compensated work force. However, the term Employee will not include any individual who is not reported on the payroll records of the Employer or an affiliated Employer as a common law Employee. If such person is later determined by the Employer or by a court or governmental agency to be or to have been an Employee, he or she will only be eligible for participation prospectively and may participate in the Plan as of the next entry date following such determination and after the satisfaction of all other eligibility requirements.

The term Employee for these purposes, shall include all Employees of a member of an affiliated service group [as defined in Code Section 414(m)], all Employees of a controlled group of corporations [as defined in Code Section 414(b)], all Employees of any incorporated or unincorporated trade or business which is under common control [as defined in Code Section 414(c)], Leased Employees [as defined in Code Section 414(n)], and any Employee required to be aggregated by Code Section 414(o). All such Employees shall be treated as employed by a single Employer.

Unless otherwise elected by the Employer in the Adoption Agreement Leased Employees shall not Employees for purposes of participation in any Plan established under a Nonstandardized Adoption Agreement. Leased Employees [as defined in Code Section 414(n) or 414(o)] shall be considered Employees in a Plan established under a Standardized Adoption Agreement except as otherwise provided in this paragraph. Exclusion under a Standardized Adoption Agreement is available only if Leased Employees do not constitute more than 20% of the recipient Employer’s non-highly compensated work force, and the Employer complies with the requirements as outlined in paragraph 2.7.

The term does not include any other common law employee or any Leased Employee. It is expressly intended that individuals not treated as common law employees by the Employer or a member of the same controlled group or affiliated service group on their payroll records, as identified by a specific job code or work status code, are to be excluded from Plan participation even if a court or administrative agency subsequently determines that such individuals are common law Employees and not independent contractors.

1.43 Employer

The Self-Employed Individual, partnership, corporation or other organization including any participating Employer, which adopts this Plan including any entity that succeeds the Employer and adopts this Plan. For purposes of Article X, Limitations on Allocations, Employer shall mean the Employer that adopts or sponsors this Plan, and all members of a controlled group of corporations [as defined in Code Section 414(b) as modified by Code Section 415(h)], all commonly controlled trades or businesses [as defined in Code Section 414(c) as modified by Code Section 415(h)] or affiliated service groups [as defined in Code Section 414(m)] of which the adopting Employer is a part, and any other entity required to be aggregated with the Employer pursuant to Regulations under Code Section 414(o).

In addition to such required treatment, the Plan Sponsor may, in its discretion, designate as an Employer any business entity which is not such a “common control,” “affiliated service group” or “predecessor” business entity which is otherwise affiliated with the Employer, subject to such nondiscriminatory limitations as the Employer may impose.

1.44 Entry Date

The date as of which an Employee who has satisfied the Plan’s eligibility requirements enters or reenters the Plan, as defined in the Adoption Agreement.

1.45 ERISA

The Employee Retirement Income Security Act of 1974, as amended and any successor statute thereto.

1.46 Excess Aggregate Contributions

The excess, with respect to any Plan Year, of:

(a) the aggregate Contribution Percentage Amounts taken into account in computing the numerator of the Contribution Percentage actually made on behalf of Highly Compensated Employees for such Plan Year, over

(b) the maximum Contribution Percentage Amounts permitted by the ACP test (determined hypothetically by reducing contributions made on behalf of Highly Compensated Employees in order of their Contribution Percentages beginning with the highest of such percentages).

(c) Such determination shall be made after first determining Excess Elective Deferrals or Xxxx Elective Deferrals pursuant to paragraph 1.49 and then determining Excess Contributions pursuant to paragraph 1.48.

1.47 Excess Annual Additions

The excess of the Participant's Annual Additions for the Limitation Year over the Maximum Permissible Amount.

1.48 Excess Contributions

With respect to any Plan Year, the excess of:

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

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

1.49 Excess Elective Deferrals

Those Elective Deferrals or Xxxx Elective Deferrals that are includible in a Participant's gross income under Code Section 402(g) to the extent such Participant's Elective Deferrals or Xxxx Elective Deferrals for a taxable year exceed the dollar limitation under Code Section 402(g) [including if applicable, the dollar limitation on such Catch-Up Contributions as defined in Code Section 414(v)] for such year or are made during a calendar year and exceed the dollar limitation under Code Section 402(g) including, if applicable, the dollar limitation on Catch-Up Contributions defined in Code Section 414(v) for the Participant’s taxable year beginning in such calendar year, counting only Elective Deferrals or Xxxx Elective Deferrals made under this Plan and any other Plan, contract or arrangement maintained by the Employer. Excess Elective Deferrals or Xxxx Elective Deferrals shall be treated as Annual Additions under the Plan, unless such amounts are distributed no later than the first April 15 following the close of the Participant's taxable year. For taxable years beginning after December 31, 2005, unless the Participant specifies otherwise, distribution of Excess Elective Deferrals or Xxxx Elective Deferrals for a year shall be made first from the Participant’s pre-tax Elective Deferral account to the extent the pre-tax Elective Deferrals were made for the year. Pre-tax Elective Deferrals are elective contributions under a qualified cash or deferred arrangement that are not Xxxx Elective Deferrals.

1.50 Expected Year Of Service

An eligibility computation period during which an Employee is expected to complete a Year of Service (as defined in the Adoption Agreement) based upon their employment schedule or position. If an Employee who was not expected to complete a Year of Service actually completes the required number of Hours of Service during an applicable computation period, such Employee shall be deemed to have entered the plan as of the same date they would have had the Employee been originally classified as expected to complete a Year of Service. In the event an Employee becomes a Participant under such circumstances, the Employee shall be eligible for an allocation of all contributions that would have been made on the Employee’s behalf had the Employee had been properly classified. If an Employee who was originally classified not being expected to complete a Year of Service has a subsequent change in employment schedule or position such that the Employee would be considered as likely to complete a Year of Service, such Employee shall eligible to participate in the Plan as of the earlier of the completion of the Service requirement specified in the Adoption Agreement on the reclassified basis or the actual completion of a Year of Service as it is defined in the Adoption Agreement. The Employee shall then enter the Plan as a Participant as of the next Entry Date following satisfaction of the eligibility requirements.

1.51 Fiduciary

Any individual or entity which exercises any discretionary authority or control over the management of the Plan or over the disposition of the assets of the Plan; renders investment advice for a fee or other compensation (direct, or indirect); has any discretionary authority or responsibility over Plan administration; or acts to carry out a Fiduciary responsibility, when designated by a named Fiduciary pursuant to authority granted by the Plan; subject, however, to any exception granted directly or indirectly by the provisions of ERISA or any applicable Regulations. The Plan Sponsor (“Employer”) is the “Named Fiduciary” for purposes of ERISA Section 402(a)(2).

1.52 First Distribution Calendar Year

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 pursuant to paragraph 7.6.

1.53 Former Participant

A Participant who is no longer actively accruing benefits under the Plan.

1.54 Hardship

An immediate and heavy financial need of the Employee where such Employee lacks other available financial resources to satisfy such financial need.

1.55 Highest Average Compensation

For Limitation Years beginning before January 1, 2000, the average Compensation for the three (3) consecutive Years of Service with the Employer that produces the highest average. A Year of Service with the Employer is the twelve (12) consecutive month period defined in the Adoption Agreement, or, if not indicated in the Adoption Agreement, as defined in paragraph 1.122.

1.56 Highly Compensated Employee

Effective for years after December 31, 1996, the term Highly Compensated Employee means any Employee who: (1) is a 5% or more owner at any time during the year or preceding year, or (2) for the preceding year had Compensation from the Employer in excess of $80,000 and if the Employer so elects in the Adoption Agreement, is in the Top-Paid Group for the preceding year. The $80,000 amount is adjusted at the same time and in the same manner as under Code Section 415(d), except that the base period is the calendar quarter ending September 30, 1996.

For the determination of who is a Highly Compensated Employee, the applicable year of the Plan for which a determination is being made is called a determination year and the preceding twelve (12) month period is called a look-back year. Employees who do not meet the Highly Compensated Employee definition are considered Non-Highly Compensated Employees.

A Highly Compensated former Employee is based on the rules applicable to determining Highly Compensated Employee status in effect for that determination year, in accordance with Section 1.414(q)-1T, A-4 of the temporary Income Tax Regulations and IRS Notice 97-45.

In determining whether an Employee is a Highly Compensated Employee for years beginning in 1997, the amendments to Code Section 414(q) stated above are treated as having been in effect for years beginning in 1996. In order to be effective, a Top-Paid Group election or calendar year data election must apply consistently to all plans of the Employer that begin with or within the same calendar year.

1.57 Hour Of Service

(a) Unless otherwise specified in the Adoption Agreement, each hour for which an Employee is paid, or entitled to payment, for the performance of duties for the Employer. These hours shall be credited to the Employee for the computation period in which the duties are performed, and

(b) each hour for which an Employee is paid, or entitled to payment, by the Employer on account of a period of time during which no duties are performed (irrespective of whether the employment relationship has terminated) due to vacation, holiday, illness, incapacity (including Disability), layoff, jury duty, military duty or leave of absence. No more than five hundred and one (501) Hours of Service shall be credited under this paragraph for any single continuous period (whether or not such period need occur in a single computation period). Hours under this paragraph shall be calculated and credited pursuant to Section 2530.200b-2 of the Department of Labor Regulations which are incorporated herein by this reference, and

(c) each hour for which back pay, irrespective of mitigation of damages, is either awarded or agreed to by the Employer. The same Hours of Service shall not be credited both under paragraph (a) or paragraph (b), as the case may be, and under this paragraph (c). These hours shall be credited to the Employee for the computation period or periods to which the award or agreement pertains rather than the computation period in which the award, agreement or payment is made.

(d) Hours of Service shall be credited for employment with the Employer and with other members of an affiliated service group [as defined in Code Section 414(m)], a controlled group of corporations [as defined in Code Section 414(b)], or a group of trades or businesses under common control [as defined in Code Section 414(c)] of which the adopting Employer is a member, and any other entity required to be aggregated with the Employer pursuant to Code Section 414(o) and the Regulations thereunder. Hours of Service shall also be credited for any individual considered an Employee for purposes of this Plan under Code Section 414(n) or Code Section 414(o) and the Regulations thereunder.

(e) Solely for purposes of determining whether a Break in Service, as defined in paragraph 1.14, for participation and vesting purposes has occurred in a computation period, an individual who is absent from work for maternity or paternity reasons shall receive credit for the Hours of Service which would otherwise have been credited to such individual but for such absence, or in any case in which such hours cannot be determined, eight (8) Hours of Service per day of such absence. For purposes of this paragraph, an absence from work for maternity or paternity reasons means an absence by reason of the pregnancy of the individual, by reason of a birth of a child of the individual, by reason of the placement of a child with the individual in connection with the adoption of such child by such individual, or for purposes of caring for such child for a period beginning immediately following such birth or placement. The Hours of Service credited under this paragraph shall be credited in the computation period in which the absence begins if the crediting is necessary to prevent a Break in Service in that period, or in all other cases, in the following computation period. No more than five hundred and one (501) hours will be credited under this paragraph.

(f) Notwithstanding paragraph (b), the Plan Administrator may elect for all Employees or for one or more different classifications of Employees (provided such classifications are reasonable and are consistently applied) to apply one or more of the following equivalency methods in determining the Hours of Service of an Employee paid on an hourly or salaried basis. Under such equivalency methods, an Employee will be credited with either (1) one hundred ninety (190) Hours of Service for each month in which he or she is paid or entitled to payment for at least one (1) Hour of Service; or (2) ninety five (95) Hours of Service for each semi-monthly period in which he or she is paid or entitled to payment for at least one (1) Hour of Service; or (3) forty-five (45) Hours of Service for each week in which he or she is paid or entitled to payment for at least one (1) Hour of Service; or (4) ten (10) Hours of Service for each day in which he or she is paid or entitled to payment for at least one (1) Hour of Service.

(g) Hours of Service shall be determined under the hours counting method as elected by the Employer in the Adoption Agreement. If no election is made, actual hours under the hours counting method will be used.

1.58 Integration Level

The amount of Compensation specified in the Adoption Agreement at or below which the rate of contributions or benefits (expressed in each case as a percentage of such Compensation) provided under the Plan is less than the rate of contributions or benefits (expressed in each case as a percentage of such Compensation) provided under the Plan with respect to Compensation above such level. The Adoption Agreement must specify an Integration Level in effect for the Plan Year. No Integration Level in effect for a particular Plan Year may exceed the contribution and benefit base (“Taxable Wage Base”) under Section 230 [Code Section 3121(a)(1)] of the Social Security Act in effect on the first day of the Plan Year.

1.59 Key Employee

For Plan Years beginning after December 31, 2001, Key Employee means any Employee or former Employee (including any deceased Employee) who at any time during the Plan Year that includes the determination date was an officer of the Employer having annual Compensation greater than $130,000 [as adjusted under Code Section 416(i)(1) for Plan Years beginning after December 31, 2002], a more than five percent (5%) owner of the Employer, or a more than one percent (1%) owner of the Employer having annual Compensation of more than $150,000. In determining whether a Plan is Top-Heavy for Plan Years beginning before January 1, 2002, Key Employee means any Employee or former Employer (including any deceased Employee) who at the time during the five (5) year period ending on the determination date, is an officer of the Employer having an annual Compensation that exceeds fifty percent (50%) of the dollar limitation under Code Section 415(b)(1)(A), an owner (or considered an owner under Code Section 318) of one of the ten largest interests in the Employer if such Individual’s Compensation exceeds one-hundred percent (100%) of the dollar limitation under Code Section 415(c)(1)(A), a more than five percent (5%) owner of the Employer, or a more than one percent (1%) owner of the Employer who has an annual Compensation of more than $150,000. For this purpose, annual Compensation means Compensation within the meaning of Code Section 415(c)(3). The determination of who is a Key Employee will be made in accordance with Code Section 416(i)(1) and the applicable Regulations and other guidance of general applicability issued thereunder.

1.60 Leased Employee

Any person (other than an Employee of the recipient) within the meaning of Code Section 414(n)(2) and Section 414(o) who is not reported on the payroll records of the Employer as a common law Employee and who provides services to the Employer if (a) the services are provided under an agreement between the Employer and a leasing organization; (b) the person has performed services for the Employer or for the Employer and related persons as determined under Code Section 414(n)(6) on a substantially full time basis for a period of at least one year; and (c) the services are performed under the primary direction and control of the Employer. Contributions or benefits provided to a Leased Employee by the leasing organization attributable to services performed for the Employer will be treated as provided by the Employer.

A Leased Employee will not be considered an Employee of the recipient if he is covered by a money purchase plan providing (a) a non-integrated Employer contribution rate of at least ten percent (10%) of Code Section 415 Compensation, including amounts contributed by the Employer pursuant to a salary reduction agreement which are excludible from the Leased Employee’s gross income under a cafeteria plan covered by Code Section 125, a cash or deferred Plan under Code Section 401(k), a SEP under Code Section 408(k) or a tax-deferred annuity under Code Section 403(b) and also including for Plan Years beginning on or after January 1, 2001, any elective amounts that are not includible in the gross income of the Leased Employee because of Code Section 132(f)(4); (b) immediate participation; and (c) full and immediate vesting. This exclusion is only available if Leased Employees do not constitute more than twenty percent (20%) of the recipient’s non-highly compensated work force.

1.61 Life Expectancy

Life expectancy as computed by use of one of the following tables, as appropriate: (1) Single Life Table, (2) Uniform Life Table, or (3) Joint and Last Survivor Table found in Section 1.401(a)(9)-9 of the Regulations.

1.62 Limitation Year

The calendar year or such other twelve (12) consecutive month period designated by the Employer in the Adoption Agreement for purposes of determining the maximum Annual Additions to a Participant's account. All Qualified Plans maintained by the Employer must use the same Limitation Year. If the Limitation Year is amended to a different twelve (12) consecutive month period, the new Limitation Year must begin on a date within the Limitation Year in which the amendment is made. If no designation is made on the Adoption Agreement, the Limitation Year will automatically default to the Plan Year. The Limitation Year under the SIMPLE 401(k) Adoption Agreement shall be the calendar year.

1.63 Master Or Prototype Plan

A plan, the form of which is the subject of a favorable opinion letter from the Internal Revenue Service.

1.64 Matching Contribution

An Employer contribution made to this or any other Defined Contribution Plan on behalf of a Participant on account of a Voluntary or Required After-tax Contribution made by such Participant, or on account of a Participant's Elective Deferral, Xxxx Elective Deferral or Catch-Up Contribution made by such Participant under a Plan maintained by the Employer.

A Plan established under Cash or Deferred Adoption Agreement may allocate Matching Contributions throughout the Plan Year, even though the amount of Matching Contributions is determined on the basis of the Plan Year. If the Plan is calculating Matching Contributions on a Plan Year basis, but Matching Contributions that are deposited during the Plan Year have been calculated on a payroll period, an additional “true-up” contribution may be required to accurately calculate the Matching Contributions as elected on the Adoption Agreement.

1.65 Maximum Permissible Amount

The maximum Annual Additions that may be contributed or allocated to a Participant's account under the Plan for any Limitation Year shall not exceed the lesser of:

(a) the Defined Contribution Dollar Limitation, or

(b) 100% of the Participant's Compensation for the Limitation Year.

The Compensation limitation referred to in (b) shall not apply to any contribution for medical benefits [within the meaning of Code Section 401(h) or Code Section 419A(f)(2)] which is otherwise treated as an Annual Addition under Code Sections 415(l)(1) or 419(d)(2). If a short Limitation Year is created because of an amendment changing the Limitation Year to a different twelve (12) consecutive month period, the Maximum Permissible Amount will not exceed the Defined Contribution Dollar Limitation multiplied by a fraction, the numerator of which is the number of months in the short Limitation Year and the denominator of which is twelve (12).

1.66 Named Investment Fiduciary

One or more Fiduciaries who have the authority to control and manage the operation, management and administration of the Plan as more fully described in Article XII. The Named Investment Fiduciaries shall be selected through a procedure outlined by the Plan Sponsor.

1.67 Net Profit

The current and accumulated operating earnings of the Employer after Federal and state income taxes, excluding nonrecurring or unusual items of income, and before contributions to this and any other Qualified Plan of the Employer, unless the Employer has elected a different definition in the Adoption Agreement. Unless elected otherwise in the Adoption Agreement, Employer contributions to the Plan are not conditioned on profits.

1.68 Normal Retirement Age

The age set by the Employer in the Adoption Agreement, not to exceed age sixty-five (65), or if later the number of years of participation elected in the Adoption Agreement , if any, at which a Participant becomes fully vested and is eligible to retire and receive his or her benefits under the Plan. If the Employer enforces a mandatory retirement age, the Normal Retirement Age is the lesser of that mandatory age or the age specified in the Adoption Agreement.

1.69 Normal Retirement Date

The date on which the Participant attains the Normal Retirement Age as elected in the Adoption Agreement. If no election is made on the Adoption Agreement, it shall mean the date on which a Participant attains his or her Normal Retirement Age.

1.70 Owner-Employee

A sole proprietor or a partner owning more than 10% of either the capital or profits interest of the partnership.

1.71 Participant

Any current Employee who met the applicable eligibility requirements and reached his or her Entry Date and, where the context so requires, pursuant to the terms of the Plan, any living former Employee on whose behalf an Account is maintained or former Employee who has met the eligibility requirements.

1.72 Participant’s Account Balance

The account balance as of the last Valuation Date in the calendar year immediately preceding the Distribution Calendar Year (Valuation Calendar Year) increased by the amount of any contributions made and allocated or forfeitures allocated to the account as of dates in the Valuation Calendar Year after the Valuation Date and decreased by distributions made in the Valuation Calendar Year after the Valuation Date. 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.

1.73 Participant's Benefit

With respect to required distributions pursuant to paragraph 7.8, the account balance as of the last Valuation Date in the calendar year immediately preceding the Distribution Calendar Year increased by the amount of any contributions or forfeitures allocated to the account balance as of the dates in the calendar year after the Valuation Date and decreased by distributions made in the calendar year after the Valuation Date. A special exception exists for the second Distribution Calendar Year. For purposes of this paragraph, if any portion of the minimum distribution for the First Distribution Calendar Year is made in the second Distribution Calendar Year on or before the Required Beginning Date, the amount of the minimum distribution made in the second Distribution Calendar Year shall be treated as if it had been made in the immediately preceding Distribution Calendar Year.

1.74 Period Of Severance

For Plans using Elapsed Time for purposes of crediting a Year of Service for eligibility, accrual of benefits and/or vesting, Employees will receive credit for all periods of Service from their date of hire (or rehire) until the next Period of Severance.

When using Elapsed Time:

(a) a Break in Service shall mean a Period of Severance of at least twelve (12) months;

(b) a Period of Severance is a continuous period of time during which the Employee is not employed by the Employer;

(c) a Period of Severance begins on the date the Employee retires, quits, or is discharged, or if earlier, the twelve (12) month anniversary of the date on which the Employee was otherwise first absent from Service.

1.75 Permissive Aggregation Group

The Required Aggregation Group of plans plus any other plan or plans of the Employer which, when considered as a group with the Required Aggregation Group, would continue to satisfy the requirements of Code Sections 401(a)(4) and 410.

1.76 Plan

The Defined Contribution Plan of the Employer in the form of this Prototype Plan and the applicable Adoption Agreement executed by the Employer as may be amended from time to time (which includes any addendum thereto). The Plan shall have the name specified in the Adoption Agreement.

1.77 Plan Administrator

For Employers who are members of the Savings Banks Employees Retirement Association (SBERA), Xxx Xxxxxx shall be the Plan Administrator. All other Employers shall select their own Plan Administrator. If no Plan Administrator is selected, the Employer shall be the Plan Administrator.

1.78 Plan Sponsor

The Employer who adopts this Prototype Plan and accompanying Adoption Agreement.

1.79 Plan Year

For Employers who are members of the Savings Banks Employees Retirement Association (SBERA), the twelve (12) consecutive month period beginning on November 1 of each year. Effective January 1, 2000, for Employers who are members of SBERA, the twelve (12) consecutive month period beginning on January 1 of each year shall become the Plan Year. For all other Employers, the twelve (12) consecutive month period designated by the Employer in the Adoption Agreement.

1.80 Predecessor Organization

An employer that previously employed the employees acquired by the current Employer. The determination of whether a prior employer is a “predecessor organization” shall be determined in accordance with Code Section 414. The Employer may grant optional crediting of predecessor service pursuant to Code Section 414(a)(2) and the Regulations issued thereunder.

1.81 Present Value

The actuarial equivalent of a Participant's accrued benefit under a Defined Benefit Plan maintained by the Employer expressed in the form of a lump sum. Actuarial equivalence shall be based on reasonable interest and mortality assumptions determined in accordance with the Top-Heavy provisions of the respective plan. Present Value is used for the purposes of the Top-Heavy test and the determination with respect thereto.

1.82 Prior Plan Year

The Plan Year immediately preceding the current Plan Year.

1.83 Projected Annual Benefit

For Limitation Years beginning before January 1, 2000, the annual retirement benefit (adjusted to an actuarial equivalent straight life annuity if such benefit is expressed in a form other than a straight life annuity or Qualified Joint and Survivor Annuity) to which the Participant would be entitled under the terms of a Defined Benefit Plan or Plans, assuming:

(a) the Participant will continue employment until Normal Retirement Age under the Plan (or current age, if later), and

(b) the Participant's Compensation for the current Limitation Year and all other relevant factors used to determine benefits under the Plan will remain constant for all future Limitation Years.

1.84 Qualified Domestic Relations Order (QDRO)

A Qualified Domestic Relations Order (QDRO) is a signed domestic relations order issued by a state court or agency which creates, recognizes or assigns to an alternate payee(s) the right to receive all or part of a Participant's Plan benefit and which meets the requirements of Code Section 414(p). An alternate payee is a Spouse, former Spouse, child, or other dependent who is treated as a Beneficiary under the Plan as a result of the QDRO. Unless elected otherwise by the Employer in the Adoption Agreement, the earliest date for payment of a QDRO to an alternate payee, is the date upon which the order is deemed qualified.

1.85 Qualified Early Retirement Age

For purposes of paragraph 8.9, Qualified Early Retirement Age is the latest of:

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

(b) the first day of the 120th month beginning before the Participant reaches Normal Retirement Age, or

1.86 Qualified Joint And Survivor Xxxxxxx (QJSA)

An immediate annuity for the life of the Participant with a survivor annuity for the life of the Participant's Spouse which is at least 50%, but not more than 100%, of the annuity payable during the joint lives of the Participant and the Participant's Spouse. The exact amount of the survivor annuity is to be specified by the Employer in the Adoption Agreement. If no election is made on the Adoption Agreement, and the Plan is subject to the Qualified Joint and Survivor Annuity provisions, the survivor annuity will be 50% of the amount paid to the Participant during his or her lifetime. The Qualified Joint and Survivor Annuity will be the amount of benefit which can be provided by the Participant's Vested Account Balance.

1.87 Qualified Matching Contributions (QMACs)

Matching Contributions that are nonforfeitable when made to the Plan and that are distributable only in accordance with the distribution provisions (other than for Hardships) applicable to Elective Deferrals and Xxxx Elective Deferrals. Qualified Matching Contributions (QMACs) must satisfy Regulations Section 1.401(k)-2(a)(6) if used for the ADP Test.

1.88 Qualified Non-Elective Contributions (QNECs)

Contributions (other than Matching Contributions or Qualified Matching Contributions) made by the Employer and allocated to Participants' accounts that the Participants may not elect to receive in cash until distributed from the Plan, that are nonforfeitable when made, and that are distributable only in accordance with the distribution provisions (other than for Hardships) that are applicable to Elective Deferrals or Xxxx Elective Deferrals and Qualified Matching Contributions. If Qualified Non-Elective Contributions (QNECs) or Elective Deferrals or Xxxx Elective Deferrals are used for the ACP Test, they must satisfy Regulations Section 1.401(m)-2(a)(6).

1.89 Qualified Plan

Any pension, profit-sharing, stock bonus, or other plan which meets the requirements of Code Section 401(a) and includes a trust exempt from tax under Code Section 501(a) or any annuity plan described in Code Section 403(a).

Solely for the purposes of Rollover Contributions, for Plan Years beginning after December 31, 2001, the term “Qualified Plan” includes a governmental Code Section 457 Plan, and a Code Section 403(b) annuity or plan.

1.90 Qualified Pre-Retirement Survivor Annuity

An annuity for the life of the Surviving Spouse of a Participant the actuarial equivalent of which is not less than 50% of the Participant’s Vested Account Balance as of the date of the Participants’ death, as elected by Employer in the Adoption Agreement. If no selection is made on the Adoption Agreement, and the Plan is subject to the Qualified Joint and Survivor Annuity provisions, the Qualified Pre-Retirement Survivor Annuity shall be 50% of the Participant’s Vested Account Balance as of the date of the death of the Participant, unless the Employer in a prior version of the Adoption Agreement or Plan, had elected that the Qualified Pre-Retirement Survivor Annuity be 100% of the Account Balance.

1.91 Qualified Voluntary Contribution

A tax-deductible Voluntary Employee Contribution which was permitted to be made for the tax years 1982 through 1986. This type of contribution is no longer permitted to be made by a Participant. This Plan shall accept such type of contribution if made in a prior plan and an appropriate recordkeeping account will be established on behalf of the Participant.

1.92 Required After-tax Contributions

Employee after-tax contributions required as a condition of participation in the Plan.

1.93 Required Aggregation Group

A group of plans including:

(a) each Qualified Plan of the Employer in which at least one (1) Key Employee participates or participated at any time during the determination period (regardless of whether the plan has terminated), and

(b) any other Qualified Plan of the Employer which enables a plan described in (a) to meet the requirements of Code Sections 401(a)(4) or 410.

1.94 Required Beginning Date

As elected in the Adoption Agreement, the Required Beginning Date will be defined in either subparagraph (a) or (b) below:

(a) The Required Beginning Date of a Participant is the April 1 of the calendar year following the calendar year in which the Participant attains age 70½.

(b) The Required Beginning Date of a Participant is the April 1 of the calendar year following the calendar year in which the Participant attains age 70½, except that benefit distributions to a Participant [other than a more than five percent (5%) owner] must commence by April 1 of the calendar year following the later of the calendar year in which the Participant attains age 70½ or the calendar year in which the Participant retires.

(c) With respect to a Participant who reaches age 70½ in or after a calendar year that begins after the later of December 31, 1998, or the adoption date of the amendment, the Required Beginning Date of a Participant is April 1 of the calendar year following the later of the calendar year in which the Participant attains age 70½ or the calendar year in which the Participant retires, except that benefit distributions to a more than five percent (5%) owner must commence by the April 1 of the calendar year following the calendar year in which the Participant attains age 70½. If no election is made in the Adoption Agreement, the Required Beginning Date shall be determined under this provision.

(d) Any participant attaining age 70½ in years after 1995 may elect by April 1 of the calendar year following the year in which the Participant attained age 70½, to defer distributions until the April 1 of the calendar year following the calendar year in which the Participant retires. If no such election is mad e, the Participant will begin receiving distributions by the April 1 of the calendar year following the year in which the Participant attained age 70½.

(e) A Participant is treated as a more than five percent (5%) owner for purposes of this section if such Participant is a more than five percent (5%) owner as defined in Code Section 416 at any time during the Plan Year ending with or within the calendar year in which such owner attains age 70½. Once distributions have begun to a more than five percent (5%) owner under this section, they must continue to be distributed, even if the Participant ceases to be a more than five percent (5%) owner in a subsequent year.

1.95 Rollover Contribution

A Qualified Plan may accept a Rollover Contribution from any Eligible Retirement Plan described in Code Section 402(c)(8)(B). An Eligible Retirement Plan is:

(a) another Qualified Plan;

(b) an Individual Retirement Account or Annuity (IRA);

(d) a governmental Code Section 457(b) plan.

If the distribution is from an IRA, it is eligible for rollover into a Qualified Plan, but only to the extent it would be includible in gross income if it were not rolled over.

The term Rollover Contribution means an amount transferred to this Plan in a Trustee to Trustee transfer from another Qualified Plan and transferred to this Plan within sixty (60) days of receipt thereof. Any amount that is transferred to this Plan from another qualified retirement plan which at the time of transfer was not subject to the Qualified Joint and Survivor Annuity and Qualified Pre-retirement Survivor Annuity requirements of Code Section 401(a)(11), or which is transferred to this Plan under subparagraph (b) above from a individual retirement account, will not at any time be subject to the spousal consent requirements as set forth in Article VIII.

1.96 Xxxx Elective Deferrals

An Elective Deferral designated by a Participant as a Xxxx Elective Deferral that at the time the deferral is made that is includible in the Participant’s gross income and has been irrevocably designated as Xxxx Elective Deferrals by the Participant in his or her deferral election. A Participant’s Xxxx Elective Deferrals will be maintained in a separate account containing only the Participant’s Xxxx Elective Deferrals and gains and losses attributable to those Xxxx Elective Deferrals.

Xxxx Elective Deferrals shall be treated in the same manner as a pre-tax Elective Deferrals under the terms of the Plan. For purposes of interpreting the Plan, the term Elective Deferral shall mean both pre-tax Elective Deferrals and Xxxx Elective Deferrals except in cases where the context is clearly in violation of the requirements of this paragraph.

Xxxx Elective Deferrals are effective January 1, 2006, or if later, the date the provision was adopted by the Plan Sponsor.

1.97 Salary Deferral Agreement

An agreement between the Employer and an Employee where the Employee authorizes the Employer to withhold a specified percentage or dollar amount of his or her Compensation (otherwise payable in cash) for deposit to the Plan on behalf of such Employee.

1.98 Savings Incentive Match Plan For Employees (SIMPLE)

A plan adopted by an Eligible Employer under Code Section 401(k)(11) under which Eligible Employees are permitted to make Elective Deferrals to a Qualified Plan established by the completion of the SIMPLE 401(k) Plan Adoption Agreement. An Eligible Employer that elects to have the SIMPLE 401(k) provisions apply to the Plan and that fails to continue to qualify an Eligible Employer for any subsequent year, is treated as an Eligible Employer for the two (2) years following the last year during which the Employer was an Eligible Employer. If the failure is due to any acquisition, disposition, or similar transaction involving an Eligible Employer, the preceding sentence shall apply only if the provisions of Code Section 410(h)(6)(c)(i) are satisfied.

1.99 Self-Employed Individual

An individual who has Earned Income for the taxable year from the trade or business for which the Plan is established including an individual who would have had Earned Income but for the fact that the trade or business had no Net Profit for the taxable year.

1.100 Service

The period of current or prior employment with the Employer including any imputed period of employment which must be counted under USERRA. If the Employer maintains a plan of a predecessor employer, service for such predecessor shall be treated as Service for the Employer for the purpose(s) specified in the Adoption Agreement. Service is determined under an hours counting method or Elapsed Time method as selected by the Employer in the Adoption Agreement.

If the Employer has elected to use the Elapsed Time method to determine eligibility and/or vesting Service, the aggregate of the following (applied without duplication and except for periods of Service that may be disregarded under paragraph 9.6):

(a) Each period from an Employee’s date of hire (or reemployment date) to his next Severance Date; and

(b) If an Employee performs an Hour of Service within twelve (12) months of a Severance Date, the period from such Severance Date to such Hour of Service. Service shall be credited for all periods when the Employer or an Affiliated Employer employs the Employee.

Service shall be measured in whole years and fractions of a year in months. For this purpose, (a) periods of less than a full year shall be aggregated on the basis that twelve (12) months or three hundred and sixty five (365) days equals a year, and (b) in aggregating days into months, thirty (30) days shall be rounded up to the nearest whole month. For purposes of determining Service, “Date of Hire” means the date on which an Employee first completes an Hour of Service and “Reemployment Date” means the date on which an Employee first completes an Hour of Service after a Severance Date.

If the Employer is a member of an affiliated service group [under Code Section 414(m)], a controlled group of corporations [under Code Section 414(b)], a group of trades or businesses under common control [under Code Section 414(c)] or any other entity required to be aggregated with the Employer pursuant to Code Section 414(o), Service will be credited for any employment for any period of time for any other member of such group. Service will also be credited for any individual required under Code Section 414(n) or Code Section 414(o) to be considered an Employee of any Employer aggregated under Code Section 414(b), (c), or (m).

The timing of any Plan amendment that credits (or increases benefits attributable to) Years of Service for a period in the past is deemed not to have the effect of discriminating significantly in favor of Highly Compensated Employees or former Highly Compensated Employees if the period for which the service credit (or benefit increase) is granted under a standardized plan does not exceed the five (5) years immediately preceding the Plan Year in which the amendment first becomes effective. The service credit (or benefit increase) is granted on a reasonably uniform basis to all Employees, if benefits attributable to the period are determined by applying the current Plan formula, and the service credited is Service (including pre-participation or imputed Service) with the Employer or a previous employer that may be taken into account under Regulations Section 1.401(a)(4)-11(d)(3) [without regard to Regulations Section 1.401(a)(4)-11(d)(3)(i)(B)]. This safe harbor is not available if the Plan amendment granting the service credit (or increasing benefits) is part of a pattern of amendments that has the effect of discriminating significantly in favor of Highly Compensated Employees or former Highly Compensated Employees.

Service credit (or benefit increase) granted under a nonstandardized plan may exceed the five (5) years immediately preceding the Plan Year in which the amendment first becomes effective. Any credited Service shall be as elected on the Adoption Agreement.

1.101 Service Provider

An individual or business entity who is retained by the Plan Administrator on behalf of the Plan to provide specified administrative services to the Plan.

1.102 Severance Date

The date which is 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 continuously absent from Service with an Employer or affiliate (with or without pay) for any reason other than quit, retirement, discharge or death.

1.103 Severance Period

Each period from an Employee’s Severance Date to his next re-employment date for purposes of USERRA.

1.104 Shareholder Employee

An Employee or officer who owns [or is considered as owning within the meaning of Code Section 318(a)(1)], on any day during the taxable year of an electing small business corporation (S Corporation), more than 5% of such corporation's outstanding stock.

1.105 Simplified Employee Pension Plan

A plan under which the Employer makes contributions for eligible Employees pursuant to a written formula. Contributions are made to an individual retirement account which meets the requirements of Code Section 408(k).

1.106 Sponsor

SBERA, or any successor(s) or assign(s).

1.107 Spouse (Surviving Spouse)

The individual to whom a Participant is married, or was married in the case of a deceased Participant who was married at the time of his or her death. A former Spouse will be treated in the same manner as a Spouse to the extent provided under a Qualified Domestic Relations Order as described in Code Section 414(p).

1.108 Super Top-Heavy Plan

A Plan described at paragraph 1.111 under which the Top-Heavy Ratio exceeds 90%.

1.109 Taxable Wage Base

For plans with an allocation formula which takes into account the Employer's contribution under the Federal Insurance Contributions Act (FICA), the contribution and benefit base in effect under the Social Security Act (Section 203) at the beginning of the Plan Year.

1.110 Top-Heavy Determination Date

For the first Plan Year of the Plan, the last day of the first Plan Year. For any Plan Year subsequent to the first Plan Year, the last day of the preceding Plan Year.

1.111 Top-Heavy Plan

For any Plan Year, the Employer's Plan is Top-Heavy if any of the following conditions exist:

(a) The Top-Heavy Ratio for the Employer's Plan exceeds 60% and this Plan is not part of any Required Aggregation Group or Permissive Aggregation Group of plans.

(b) The Employer's Plan is a part of a Required Aggregation Group of plans but not part of a Permissive Aggregation Group and the Top-Heavy Ratio for the group of plans exceeds 60%.

(c) The Employer's Plan is a part of a Required Aggregation Group and part of a Permissive Aggregation Group of plans and the Top-Heavy Ratio for the Permissive Aggregation Group exceeds 60%.

1.112 Top-Heavy Ratio

(a) If the Employer maintains one or more Defined Contribution Plans (including any Simplified Employee Pension Plan) and the Employer has not maintained any Defined Benefit Plan which during the five (5) year period ending on the Determination Date(s) has or has had accrued benefits, the Top-Heavy Ratio for this Plan alone, or for the Required or Permissive Aggregation Group as appropriate, is a fraction,

(1) the numerator of which is the sum of the account balances of all Key Employees as of the Determination Date(s) [including any part of any account balance distributed in the one (1) year period ending on the Determination Date(s)], and

(2) the denominator of which is the sum of all account balances [including any part of any account balance distributed in the one (1) year period ending on the Determination Date(s)], both computed in accordance with Code Section 416 and the Regulations thereunder.

Both the numerator and denominator of the Top-Heavy Ratio are increased to reflect any contribution not actually made as of the Determination Date but which is required to be taken into account on that date under Code Section 416 and the Regulations thereunder. In the case of a distribution made for a reason other than separation from Service, death or Disability, this provision shall be applied by substituting “five (5) year period” for “one (1) year period”.

(b) If the Employer maintains one or more Defined Contribution Plans (including any Simplified Employee Pension Plan) and the Employer maintains or has maintained one or more Defined Benefit Plans which during the five (5) year period ending on the Determination Date(s) has or has had any accrued benefits, the Top-Heavy Ratio for any Required or Permissive Aggregation Group, as appropriate, is a fraction, the numerator of which is the sum of account balances under the aggregated Defined Contribution Plan or Plans for all Key Employees, determined in accordance with (a) above, and the Present Value of accrued benefits under the aggregated Defined Benefit Plan or Plans for all Key Employees as of the Determination Date(s), and the denominator of which is the sum of the account balances under the aggregated Defined Contribution Plan or Plans for all Participants, determined in accordance with (a) above, and the Present Value of accrued benefits under the Defined Benefit Plan or Plans for all Participants as of the Determination Date(s), all determined in accordance with Code Section 416 and the Regulations thereunder. The accrued benefits under a Defined Benefit Plan in both the numerator and denominator of the Top-Heavy Ratio are increased for any distribution of an accrued benefit made in the five (5) year period ending on the Determination Date.

(c) For purposes of (a) and (b) above, the value of account balances and the Present Value of accrued benefits will be determined as of the most recent Valuation Date that falls within or ends with the twelve (12) month period ending on the Determination Date, except as provided in Code Section 416 and the Regulations thereunder for the first and second Plan Years of a Defined Benefit Plan. The account balances and accrued benefits of a Participant who is not a Key Employee but who was a Key Employee in a prior year, or who has not been credited with at least one (1) Hour of Service with any Employer maintaining the Plan at any time during the five (5) year period ending on the Determination Date, will be disregarded. The calculation of the Top-Heavy Ratio, and the extent to which distributions, rollovers, and transfers are taken into account will be made in accordance with Code Section 416 and the Regulations thereunder. Qualified Voluntary Employee Contributions will not be taken into account for purposes of computing the Top-Heavy Ratio. When aggregating plans, the value of account balances and accrued benefits will be calculated with reference to the Determination Dates that fall within the same calendar year. The accrued benefit of a Participant other than a Key Employee shall be determined under the method, if any, that uniformly applies for accrual purposes under all Defined Benefit Plans maintained by the Employer, or if there is no such method, as if such benefit accrued not more rapidly than the slowest accrual rate permitted under the fractional rule of Code Section 411(b)(1)(C).

1.113 Top-Paid Group

The group consisting of the top 20% of Employees when ranked on the basis of Compensation paid during such year. For purposes of determining the number of Employees in the group (but not who is in it), Employees identified in (a) through (d) may be excluded and Employees identified in (e) through (f) shall be excluded:

(a) Employees who have not completed six (6) months of Service by the end of the year;

(b) Employees who normally work less than seventeen and one-half (17½) hours per week by the end of the year;

(d) Employees who have not attained age twenty-one (21) by the end of the year;

(e) Employees included in a collective bargaining unit, covered by an agreement between Employee representatives and the Employer, where retirement benefits were the subject of good faith bargaining, if they constitute at least 90% of the Employer’s work force and the Plan covers only non-union Employees; and

(f) Employees who are nonresident aliens and who receive no Earned Income which constitutes income from sources within the United States.

1.114 Transfer Contribution

A non-taxable transfer of a Participant's benefit directly from a Qualified Plan to this Plan. This type of transfer does not constitute constructive receipt of plan assets.

1.115 Trust

The trust established in conjunction with the Plan, together with any and all amendments thereto which holds assets of the Plan held by or in the name of the Trustee or Custodian.

1.116 Trustee

For Employers who are members of SBERA, the Trustee shall be the Trustees of the Savings Banks Employees Retirement Association. For all other Employers, the Trustee shall be the individual, individuals, or institution appointed by the Employer to serve as Trustee of the Plan. In the event the Employer does not name an individual, individuals or institution to serve as Trustee of the Plan, the Employer will be deemed to be the Trustee.

1.117 Uniformed Services Employment And Reemployment Rights Act Of 1994 (USERRA)

The Uniformed Services Employment and Reemployment Rights Act of 1994, as amended. Notwithstanding any provision of the Plan to the contrary, contributions, benefits, Plan loan repayment, suspensions and service credit with respect to qualified military service will be provided in accordance with Code Section 414(u).

1.118 Valuation Date

The last day of the Plan Year and such other date(s) as specified in the Adoption Agreement on which the fair market value of Plan assets is determined. The Trustee and/or Custodian may also value all or any portion of the assets of the Trust on such other Valuation Dates as directed by the Plan Administrator, including but not limited to semi-annually, quarterly, monthly, or daily Valuation Dates.

1.119 Vested Account Balance

The aggregate value of the Participant's Vested Account Balances derived from Employer and Employee contributions (including Rollovers), whether vested before or upon death, including the proceeds of insurance contracts, if any, on the Participant's life. The provisions of Article IX shall apply to a Participant who is vested in amounts attributable to Employer contributions, Employee contributions (or both) at the time of death or distribution.

1.120 Voluntary After-tax Contribution

Any contribution (other than Xxxx Elective Deferrals) made to the Plan or any other Defined Contribution Plan by or on behalf of a Participant that is included in the Participant’s gross income in the year in which made and that is maintained under a separate account to which earnings and losses are allocated.

1.121 Welfare Benefit Fund

Any fund that is part of a plan of the Employer, or has the effect of a plan, through which the Employer provides welfare benefits to Employees or their Beneficiaries. For these purposes, Welfare Benefit means any benefit other than those with respect to which Code Section 83(h) (relating to transfers of property in connection with the performance of services), Code Section 404 (relating to deductions for contributions to an Employees' trust or annuity and Compensation under a deferred payment plan), Code Section 404A (relating to certain foreign deferred compensation plans) apply. A "Fund" for purposes of this paragraph, is any social club, voluntary employee benefit association, supplemental unemployment benefit trust or qualified group legal service organization described in Code Section 501(c)(7), (9), (17) or (20); any trust, corporation, or other organization not exempt from income tax, or to the extent provided in regulations, any account held for an Employer by any person.

1.122 Year Of Service

(a) If elected in the Adoption Agreement, the hours counting method will be used in determining either an Employee’s initial or continuing eligibility to participate in the Plan, or the nonforfeitable interest in the Participant’s account balance derived from Employer contributions. A Year of Service is a twelve (12) consecutive month period in which an Employee has completed 1,000 Hours of Service (or such lower number as is specified in the Adoption Agreement).

(1) The eligibility computation period begins on the date the Employee first performs an Hour of Service (employment commencement date) and is a twelve (12) consecutive month period during which the Employee has completed the number of Hours of Service (not to exceed 1,000) as elected in the Adoption Agreement.

(2) The vesting computation period is a twelve (12) consecutive month period as elected by the Employer in the Adoption Agreement during which the Employee completed the number of Hours of Service [not to exceed 1,000] as elected in the Adoption Agreement. If no election is made, the Plan Year shall be used provided that in the event the Plan Year is changed, the “vesting computation period” shall be the twelve (12) consecutive month period determined in accordance with Department of Labor Regulation Section 2530.203-2(c), the provisions of which are incorporated herein by reference.

(b) Alternatively, if elected in the Adoption Agreement, the Elapsed Time method will be used in determining either an Employee’s initial or continuing eligibility to participate in the Plan, accrual of benefits or the nonforfeitable interest in the Participant’s account balance derived from Employer contributions. An Employee will receive credit for the aggregate of all time period(s) commencing with the Employee’s first day of employment or reemployment and ending on the date a Period of Severance begins. The first day of employment or reemployment is the first day the Employee performs an Hour of Service for the Employer. An Employee will also receive credit for any Period of Severance of less than twelve (12) consecutive months. Fractional periods of a year will be expressed in terms of days. Years of Service will be determined in accordance with paragraph 1.100.

(1) A Break in Service under the Elapsed Time method as defined in paragraph 1.74 is a Period of Severance of at least twelve (12) consecutive months. A Period of Severance is a continuous period of time during which the Employee is not employed by the Employer. The continuous period begins on the date the Employee retires, quits, is discharged or if earlier, the first twelve (12) month anniversary of the date on which the Employee is first absent from Service.

(2) In the case of an individual who is absent from work for maternity or paternity reasons, the twelve (12) consecutive month period beginning on the first anniversary of the first date of such absence from work for maternity or paternity reasons (i) by reason of the pregnancy of the individual, (ii) by reason of the birth of the child of the individual, (iii) by reason of the placement of a child with the individual in connection with the adoption of such child by such individual, or (iv) for purposes of caring for such child for a period beginning immediately following such birth or placement.

(c) Each Employee will share in Employer contributions for the period beginning on the date the Employee commences participation under the Plan and ending on the date on which such Employee terminates employment with the Employer or is no longer a member of an eligible class of Employees.

(d) If two (2) Years of Service are required as a condition of eligibility, a Participant will only have completed two (2) Years of Service for eligibility purposes upon the actual completion of two (2) consecutive Years of Service.

(e) The Employer may elect in the Adoption Agreement for purposes of determining a Participant’s vested interest to disregard Years of Service prior to the time the Employer or any affiliate maintained the Plan or any predecessor plan, and/or an Employee’s attainment of a certain age, not to exceed age eighteen (18).

(f) An Employee’s Years of Service under this Plan may be determined using the hours counting method or the Elapsed Time method or both. Unless otherwise elected in the Adoption Agreement, Years of Service shall be determined using the hours counting method on the basis of actual hours worked.

(g) If the Plan determines Service for a given purpose on one basis and an Employee transfers to Employment covered by this Plan from employment covered by another Qualified Plan which determines Service for such purpose on the other basis, and if the Employee’s Service for the period during which he was covered by such other plan is required to be taken into consideration under this Plan for that purpose, then the following rules shall apply:

(1) If such Service was determined under the other plan using the hours counting method, then the period so taken into consideration through the close of the computation period in which such transfer occurs shall be the number of Years of Service credited to the Employee for such purpose under such other plan as of the start of such computation period, and for the computation period in which such transfer occurs, the greater of (A) his Service for such period as of the date of transfer determined under the rules of such other plan, or (B) his Service for such period determined under the Elapsed Time rules of this Plan. Service after the close of that computation period shall be determined for such purpose solely under the Elapsed Time rules of this Plan.

(2) If such Service was determined under the other plan using the Elapsed Time method, then the period taken into consideration shall be (i) the number of one-year periods of Service credited to the Employee under such other plan as of the date of the transfer, and (ii) for the computation period which includes the date of transfer, the Hours of Service equivalent to any fractional part of a Year of Service credited to him under such other plan. In determining such equivalency, the Employee shall be credited with one-hundred-ninety (190) Hours of Service for each month or fraction thereof.

If this Plan is an amendment and continuation of another Qualified Plan or if this Plan is amended and an effect of the amendment is to change the basis on which Years of Service are determined, the foregoing rules shall be applied as if each Employee had transferred employment on the effective date of such amendment.

If no election is made on the Adoption Agreement, the Plan will define a Year of Service as a twelve (12) consecutive month period in which an individual has completed 1,000 Hours of Service under the hours counting method.

ARTICLE II

ELIGIBILITY REQUIREMENTS

2.1 Eligibility

Employees who meet the eligibility requirements in the Adoption Agreement on the Effective Date of the Plan shall become Participants as of the Effective Date of the Plan. If elected in the Adoption Agreement, all Employees employed on the Effective Date of the Plan may participate, even if they have not satisfied the Plan's specified eligibility requirements. Employees hired after the Effective Date of the Plan, upon meeting the eligibility requirements, shall become Participants on the applicable Entry Date. For amended and restated Plans, Employees who were Participants in the Plan prior to the Effective Date will continue to participate in the Plan, regardless of whether the Employee satisfies the eligibility requirements in the restated or amended Plan, unless otherwise elected in the Adoption Agreement. If no age and Service requirement are elected in the Adoption Agreement, an Employee will become a Participant on the date the individual first performs an Hour of Service for the Employer. The Employee must satisfy the eligibility requirements specified in the Adoption Agreement and be employed on the Entry Date to become a Participant in the Plan.

(a) In the event that an Employee has satisfied the eligibility requirements, but is not employed on the applicable Entry Date, such Employee will become a Participant for the purpose(s) for which an Employee had previously qualified upon his or her rehire.

(b) Except as otherwise provided in the Adoption Agreement, all Years of Service will be counted for purposes of determining whether an Employee has satisfied the Plan’s Service eligibility requirement, if any. If a Participant has a Break in Service or Period of Severance, Service before that Break in Service or Period of Severance shall be reinstated as of the date the Employee is credited with an Hour of Service after incurring such Break in Service or Period of Severance.

(c) In the event an Employee who is not a member of an eligible class of Employees becomes a member of an eligible class, such Employee shall participate immediately if such Employee has satisfied the minimum age and Service requirements and would have previously become a Participant had he or she been in an eligible class.

(d) A former Participant shall be eligible to authorize Elective Deferrals or Xxxx Elective Deferrals and may make other Employee Contributions as permitted under the Plan as of the date on which the individual is rehired. Such contributions shall resume immediately (or as soon as administratively feasible) on or after his or her date of rehire. A former Employee who had become a Participant for the purpose of Employer contributions shall again become a Participant with respect to Employer Contributions on the date on which the individual is rehired.

(e) An Employee who has become a Participant under the Plan will remain a Participant for as long as an account is maintained under the Plan for his or her benefit, or until his or her death, if earlier.

(f) Each Employee will share in Employer contributions for the period beginning on the date the Employee commences participation under the Plan and ending on the date on which such Employee terminates employment with the Employer or is no longer a member of an eligible class of Employees.

(g) An Employee’s eligibility to make Elective Deferrals or Xxxx Elective Deferrals under a cash or deferred arrangement may not be conditioned upon the completion of more than one (1) Year of Service or the attainment of an age greater than twenty-one (21). An Employee’s eligibility to receive Matching Contributions, Qualified Matching Contributions, or Qualified Non-Elective Contributions may be conditioned upon the completion of up to two (2) Years of Service. No contributions or benefits (other than Matching Contributions or Qualified Matching Contributions) may be conditioned upon an Employee’s Elective Deferrals or Xxxx Elective Deferrals.

2.2 Determination Of Eligibility

The Plan Administrator shall determine the eligibility of each Employee for participation in the Plan based upon information provided by the Employer. Such determination shall be conclusive and binding on all Employees except as otherwise provided herein or by operation of law.

2.3 Change In Classification Of Employment

In the event a Participant becomes ineligible to participate because he or she is no longer a member of an eligible class of Employees (as elected by the Employer in the Adoption Agreement), Elective Deferrals, Xxxx Elective Deferrals and/or other Employee contributions will cease as soon as administratively practicable after the Participant becomes ineligible. Such Participant shall participate for the purpose(s) for which the Participant had previously qualified immediately (or as soon as administratively feasible) upon his or her return to an eligible class of Employees.

2.4 Participation

A Year of Service for participation in the Plan is an eligibility computation period during which an Employee completes the Hours of Service requirement (1,000 hours or less) elected by the Employer in the Adoption Agreement. If the Plan utilizes the Elapsed Time method of crediting Service, an eligibility computation period for which the Employee receives credit for a Year of Service will be determined under the Service crediting rules of paragraph 1.100. Plans that require Employees to complete more than one (1) Year of Service in order to become a Participant must fully vest such Employee upon becoming a Participant in the Plan.

The initial eligibility computation period shall be the twelve (12) consecutive month period beginning on the Employee’s employment commencement date (the first day an Employee completes an Hour of Service for the Employer). The Plan will measure succeeding eligibility computation periods based on the Plan Year, unless otherwise elected in the Adoption Agreement. Where the subsequent computation periods are calculated on the basis of the Plan Year, an Employee who receives credit for the required number of Hours of Service during the initial computation period and then earns an additional Year of Service credit during the Plan Year commencing during the subsequent twelve (12) month period will be credited with two (2) Years of Service for purposes of eligibility to participate. Years of Service and Breaks in Service shall be measured on the same eligibility computation period.

An Employer may specify in the Adoption Agreement a Service requirement for eligibility for participation in the Plan after completion of a specified number of months or Hours of Service. Any Service requirement based on months of Service may not require an Employee to complete more than one (1) Year of Service (1,000 Hours of Service) in a twelve (12) consecutive month period, or if applicable, two (2) Years of Service.

2.5 Employment Rights

Participation in the Plan shall not confer upon a Participant any employment rights, nor shall it interfere with the Employer's right to terminate the employment of any Employee at any time.

2.6 Service With Controlled Groups

All Years of Service with other members of a controlled group of corporations [as defined in Code Section 414(b)], trades or businesses under common control [as defined in Code Section 414(c)], or members of an affiliated service group [as defined in Code Section 414(m)] and any other entity required to be aggregated with the Employer pursuant to Code Section 414(o) shall be credited for purposes of determining an Employee's eligibility to participate.

2.7 Leased Employees

A Leased Employee shall be treated as an Employee of the recipient Employer in any Plan established under a Standardized Adoption Agreement, unless specifically excluded under the provisions of the next subparagraph. A Leased Employee will be considered an Employee of the recipient Employer for purposes of participation in any Plan established under a Nonstandardized Adoption Agreement, unless otherwise elected by the Employer in the Adoption Agreement. Contributions or benefits provided by the leasing organization that are attributable to services performed for the recipient Employer shall be treated as provided by the recipient Employer.

A Leased Employee shall not be considered an Employee of the recipient if such Employee is covered by a money purchase pension plan sponsored by the leasing organization providing:

(a) a non-integrated Employer contribution rate of at least 10% of Compensation [as defined in Code Section 415(c)(3)], but including amounts contributed pursuant to a salary reduction agreement which are excludable from the Employee’s gross income under Code Sections 125, 132(f)(4), 402(e)(3), 402(h)(1)(B), or 403(b),

(b) immediate participation, and

This exclusion is only available if Leased Employees do not constitute more than 20% of the recipient's Non-Highly Compensated work force. The Plan Administrator must apply this paragraph consistent with Code Sections 414(n) and 414(o) and the Regulations issued thereunder. The Employer must specify in an addendum to the Adoption Agreement the manner in which the Plan will determine the allocation of Employer contributions and Participant forfeitures on behalf of a Participant if the Participant is a Leased Employee covered by a plan maintained by the leasing organization.

2.8 Thrift Plan

The Employer may make an election in the Adoption Agreement to require Employee after-tax contributions (Required After-tax Contributions) as a condition of participation in the Plan. The Employer shall notify each eligible Employee of his or her eligibility for participation prior to the appropriate Entry Date. The Employee shall indicate his or her intention to join the Plan by authorizing the Employer to withhold a percentage of his or her Compensation as provided in the Plan. Such authorization shall be returned to the Employer within the time prescribed. The Employee may decline participation by so indicating in accordance with the procedures prescribed by the Employer. If the Employee declines to participate, such Employee shall be given the opportunity to join the Plan on any subsequent Entry Date.

2.9 Target Benefit Plan

A Target Benefit Plan may be established by executing a Target Benefit Plan Adoption Agreement. The Employer shall notify each eligible Employee of his or her eligibility for participation prior to the appropriate Entry Date. The Employer will make contributions for each Participant in level annual contributions that will fund the Participant’s target benefit at the Plan’s Normal Retirement Age.

2.10 Xxxxx-Xxxxx Plan

A Xxxxx-Xxxxx Plan may be established by executing a Xxxxx-Xxxxx Plan Adoption Agreement. The Employer shall notify each Employee covered by any Xxxxx-Xxxxx or prevailing wage contract of his or her eligibility for participation prior to the appropriate Entry Date. The Employer will make contributions for each Participant in accordance with the formula or any public contract subject to the Xxxxx-Xxxxx Act or to any other Federal, state or municipal prevailing wage law as specified in the Adoption Agreement or any schedule attached thereto. The contribution schedule shall take into account each Participant’s hourly rate, employment category, employment classification, and such other factors the Xxxxx-Xxxxx contract may specify.

For the purposes of this paragraph, Employees covered by a Xxxxx-Xxxxx or prevailing wage contract will be those who are not included in a unit of Employees covered by a collective bargaining agreement between the Employer and Employee representatives.

2.11 Waiver Of Participation

Effective with the date of the adoption of this Plan, otherwise eligible Employees may not execute a waiver of participation. Any properly executed waivers of participation executed prior to the adoption of the Plan shall be grandfathered and such waiver shall be valid in full force and effect.

An Employee or Participant will continue to earn credit for each Year of Service for eligibility or vesting purposes he or she completes and his or her account (if any) will share in the gains or losses of the Plan during the periods he or she elects not to participate.

2.12 Omission Of Eligible Employee

If, in any Plan Year, an Employee who should be included as a Participant in the Plan is erroneously omitted and discovery of such omission is not made until after a contribution by his or her Employer for the Plan Year has been made, the Employer shall make any such correction regarding the Employee’s eligibility under one of the IRS approved correction programs.

2.13 Inclusion Of Ineligible Employee

If, in any Plan Year, any person who should not have been included as a Participant in the Plan is erroneously included, the Employer shall make any such correction regarding the Employee’s eligibility under one of the IRS approved correction programs.

2.14 Participating Employer

The term Participating Employer means any entity which is part of a controlled group or affiliated service group, as those terms are defined in Code Sections 414(b), (c) and (m),or is otherwise required to be aggregated under Code Section 414(o) that adopts this Plan with the consent of the Employer. An Employee’s transfer to or from any Employer or Participating Employer will not affect his or her Participant’s Account Balance, total Years of Service (Periods of Service) and total Years of Service as a Participant (Periods of Service as a Participant). A Participating Employer shall be subject to the following provisions:

(a) Whenever a right or obligation is imposed upon the Employer by the terms of the Plan, the same shall extend to the Participating Employer as the “Employer” under the Plan and shall be separate and distinct from that imposed upon the Employer. It is the intention of the parties that the Participating Employer shall be a party to the Plan and treated in all respects as the Employer thereunder, with its employees to be considered as the Employees or Participants as the case may be, thereunder. However, the participation of the Participating Employer in the Plan shall in no way diminish, augment, modify or in any way affect the rights and duties of the Employer, its Employees and Participants under the Plan.

(b) The Trustee(s) and/or Custodian(s) agree to receive and allocate contributions made to the Plan by the Employer and by the Participating Employer, as well as to do and perform all acts that are necessary to keep records and accounts of all funds held for Participants who are employees.

(c) The Participating Employer shall be construed as having adopted the Plan in every respect as if said Plan had this date been executed between the Participating Employer and the Trustee and/or Custodian, except as otherwise expressly provided herein or in any amendment that may subsequently be adopted hereto.

(d) All actions required by the Plan to be taken by the Employer shall be effective with respect to the Participating Employer. The Participating Employer hereby irrevocably designates the Employer as its agent for such purposes.

(e) Contributions made by any such Participating Employer will be held in a common Trust Fund with contributions made by the Employer, and contributions shall be available to pay the benefits of a Participant or Beneficiary who is an Employee of the Plan Sponsor or any such Participating Employer.

ARTICLE III

EMPLOYER CONTRIBUTIONS

3.1 Contribution Amount

The Employer shall make periodic contributions to the Plan in accordance with the contribution formula or formulas elected in the Adoption Agreement.

The Employer’s contribution (if any) may consist of (1) cash; (2) qualifying Employer securities or qualifying Employer real property as defined in Section 407(d) of ERISA, provided the acquisition of such qualifying Employer securities or qualifying real property securities satisfies the requirements of Section 408(e) of ERISA; or (3) any other unencumbered property that is permitted under Code Section 4975 and is subject to the consent of the Trustee and/or the Custodian made to the Plan on a discretionary basis. No contribution of property may be made to any Plan established hereunder which would result in a prohibited transaction.

The Employer shall also make Matching Contributions, Top-Heavy minimum contributions and any other Employer contribution for the benefit of Participants who are covered by USERRA. Employer Matching Contributions under USERRA shall be made in the Plan Year for which the Participant exercises his or her right to make-up Elective Deferrals, Xxxx Elective Deferrals and/or other Employee contributions for prior years. Top-Heavy minimum contributions and other Employer contributions for USERRA protected Service shall be made during the Plan Year in which the individual returns to employment with the Employer. Employer contributions required under USERRA are not increased or decreased with respect to Plan investment earnings for the period to which such contributions relate. The Employer's contribution for any Plan Year shall be subject to the limitations on allocations contained in Article X.

If the Employer’s Non-Elective Contribution utilizes permitted disparity the following rules shall apply, as determined by the election made by the Employer in the Adoption Agreement. Only one plan maintained by the Employer may provide for permitted disparity. Any Plan utilizing a Safe Harbor formula may not apply the Safe Harbor Contribution to the integrated allocation formula.

(a) Excess Integrated Allocation Formula – If the Plan is not Top-Heavy or if the Top-Heavy minimum contribution or benefit is provided under another plan covering the same Employees, paragraphs (1) and (2) below may be disregarded and 5.7%, 5.4% or 4.3% may be substituted for 2.7%, 2.4% or 1.3% where it appears in paragraph (3) below.

(1) Step One: Contributions and Forfeitures will be allocated to each Participant’s account in the ratio that each Participant’s total Compensation bears to all Participants’ total Compensation but not in excess of 3% of each Participants Compensation Participants will receive an allocation not to exceed 3% of their Compensation.

(2) Step Two: Any remaining Employer contributions will be allocated up to a maximum of 3% of excess Compensation of all Participants to Participants who have Compensation in excess of the Integration Level (excess Compensation) as defined in the Adoption Agreement. Each such Participant will receive an allocation in the ratio that his or her excess Compensation bears to the excess Compensation of all Participants. If Employer contributions are insufficient to fund to this level, the Employer must determine the uniform allocation percentage to allocate to those Participants who have Compensation in excess of the Integration Level. To determine this uniform allocation percentage, the Employer must take the remaining contribution and divide that amount by the total excess Compensation of Participants.

(3) Step Three: Any remaining Employer contributions will be allocated to all Participants in the ratio that their Compensation plus excess Compensation bears to the total Compensation plus excess Compensation of all Participants. . Participants may only receive an allocation of up to 2.7% of their Compensation plus Excess Compensation, under this allocation step. If the Integration Level defined in the Adoption Agreement is less than or equal to the greater of $10,000 or 20% of the maximum, the 2.7% need not be reduced. If the amount specified is greater than the greater of $10,000 or 20% of the Taxable Wage Base, but not more than 80%, 2.7% must be reduced to 1.3%. If the amount specified is greater than 80% but less than 100% of the maximum Taxable Wage Base, the 2.7% must be reduced to 2.4%. If Employer contributions are insufficient to fund to this level, the Employer must determined the uniform allocation percentage to allocate to those Participants who have Compensation up to the Integration Level and Excess Compensation. To determine this uniform allocation percentage, the Employer must take the remaining contributions and divide that amount by the total Compensation including Excess Compensation of Participants.

(4) Step Four: Any remaining Employer contributions will be allocated to all Participants in the ratio that each Participant's Compensation bears to all Participants' Compensation.

(b) Base Integrated Allocation Formula – To the extent that such contributions are sufficient they shall be allocated first, as a designated percentage of each eligible Participant's Compensation, plus a designated percentage of Compensation in excess of the Integration Level (as defined in the Adoption Agreement). The percentage of excess Compensation may not exceed the lesser of (i) the amount first specified in this paragraph or (ii) the greater of 5.7% or the percentage rate of tax under Code Section 3111(a) as in effect on the first day of the Plan Year attributable to the Old Age (OA) portion of the OASDI provisions of the Social Security Act. If the Employer specifies an Integration Level in the Adoption Agreement which is lower than the Taxable Wage Base (for Social Security purposes (SSTWB) in effect as of the first day of the Plan Year, the percentage contributed with respect to excess Compensation must be adjusted. If the Plan's Integration Level is greater than the larger of $10,000 or 20% of the SSTWB but not more than 80% of the TWB, the excess percentage is 4.3%. If the Plan's Integration Level is greater than 80% of the TWB but less than 100% of the TWB, the excess percentage is 5.4%.

3.2 Overall Permitted Disparity Limits

(a) Annual Overall Permitted Disparity Limits - Notwithstanding the preceding paragraphs, for any Plan Year this Plan benefits any Participant who benefits under another Qualified Plan or Simplified Employee Pension Plan, as defined in Code Section 408(k), maintained by the Employer that provides for permitted disparity (or imputes disparity), Employer contributions and forfeitures under a Plan established under a Standardized Adoption Agreement will be allocated to the account of each Participant who either completes more than 500 Hours or Service during the Plan Year or who is employed on the last day of the Plan Year in the ratio that each Participant’s total Compensation bears to the total Compensation of all Participants.

(b) Cumulative Permitted Disparity Limits - Effective for Plan Years beginning on or after January 1, 1995, the cumulative permitted disparity limit for a Participant is thirty five (35) total cumulative permitted disparity years. Total cumulative permitted years means the number of years credited to the Participant for allocation or accrual purposes under this Plan, and any other Qualified Plan or Simplified Employee Pension Plan (whether or not terminated) ever maintained by the Employer. For purposes of determining the Participant’s cumulative permitted disparity limit, all years ending in the same calendar year are treated as the same year. If the Participant has not benefited under a Defined Benefit or Target Benefit Plan for any year beginning on or after January 1, 1994, the Participant has no cumulative disparity limit.

Compensation for purposes of this paragraph shall mean Compensation as elected in the Adoption Agreement.

3.3 Contribution Amount For A SIMPLE 401(k) Plan

If the Employer has executed the SIMPLE 401(k) Adoption Agreement, the provisions of the following paragraphs shall apply for a Plan Year if the Employer is an Eligible Employer and no contributions are made or benefits accrued for services during the Plan Year on behalf of any Eligible Employee under any other plan, contract, pension or trust described in Code Section 219(g)(5)(A) or (B) maintained by the Employer. To the extent that other provisions of the Plan are inconsistent with the SIMPLE 401(k) provisions, the SIMPLE 401(k) provisions shall govern.

(a) SIMPLE 401(k) Matching Contribution Formula – For each Plan Year, the Employer shall contribute and allocate to each Eligible Employee’s account an amount equal to the Employee’s Elective Deferral contribution up to a limit of 3% of the Employee’s Compensation for the full Plan Year. If the Employer elects in the Adoption Agreement to make the Non-Elective Contribution as specified in paragraph 3.3(b) below, this Matching Contribution will not be made.

(b) SIMPLE 401(k) Non-Elective Contribution Formula – For any Plan Year, the Employer may elect to contribute a Non-Elective Contribution of 2% of Compensation for the full Plan Year for each Eligible Employee who received at least $5,000 of Compensation (or such lesser amount as elected by the Employer in the SIMPLE 401(k) Plan Adoption Agreement) for the Plan Year. The allocation thereof shall be unrelated to any Participant Elective Deferral contributions made hereunder. If the Employer elects in the Adoption Agreement to make the Non-Elective Contribution for a Plan Year, the Employer shall not make the Matching Contribution described in paragraph 3.3(a) above with respect to the same Plan Year. The Employer shall notify Eligible Employees within a reasonable period of time (before the sixtieth day) prior to the beginning of each Plan Year of its election to make the 2% Non-Elective Contribution in lieu of the Matching Contribution.

(c) The provisions of the Plan implementing the limitations of Code Section 415 apply to contributions made pursuant to paragraphs 3.3(a) (other than Catch-Up Contributions) and 3.3(b).

(d) In the event that the contribution and allocation formula above results in an Excess Annual Addition, such excess shall be corrected as provided for at paragraph 10.3. The Employer’s contribution for any Plan Year shall be subject to the overall limitations on allocations contained in Article X.

(e) No other Employer or Employee contributions may be made to the SIMPLE 401(k) Plan for the Plan Year other than Elective Deferrals described in paragraph 4.8, Matching or Non-Elective Contributions described in paragraphs 3.3(a) and (b), and Rollover Contributions described in Regulations Section 1.402(c)-2, Q&A-1(a).

(f) In the event the deduction of a contribution made by the Employer is disallowed under Code Section 404, such contribution (to the extent disallowed) must be returned to the Employer within one year of the disallowance of the deduction.

(g) All benefits attributable to contributions described in paragraphs 3.3(a) and (b) are nonforfeitable at all times, and all previous contributions made under the Plan provisions are nonforfeitable as of the beginning of the Plan Year the SIMPLE 401(k) provisions apply.

3.4 Responsibility For Contributions

Neither the Trustee (or the Custodian, if this is a Custodial Plan), nor the Sponsor shall be required to determine if the Employer has made a contribution or if the amount contributed from its general assets is in accordance with the Code and the provisions elected in the Adoption Agreement. The Employer shall have sole responsibility in this regard. The Trustee, or Custodian if this is a Custodial Plan, shall be accountable solely for contributions actually received. The Employer shall have the responsibility to determine whether the Contribution is within the limits of Article X.

3.5 Return Of Contributions

Contributions made to the Plan by the Employer shall be irrevocable except as provided below:

(a) Any contribution forwarded to the Trustee and/or Custodian due to a mistake of fact, provided that the contribution is returned to the Employer within one (1) year of the date of the contribution. The Trustee and/or Custodian will not increase the amount of the Employer contribution returnable under this paragraph 3.5 for any earnings attributable to the contribution but the Trustee and/or Custodian will reduce the amount returned to the Employer for any losses incurred attributable to the excess contribution.

(b) In the event that the Commissioner of Internal Revenue determines that the Plan is not initially qualified under the Internal Revenue Code, any contribution dependent on the initial qualification by the Employer must be returned to the Employer within one (1) year after the date the initial qualification is denied, but only if the application for the qualification is made by the time prescribed by law for filing the Employer's return for the taxable year in which the Plan is adopted, or such later date as the Secretary of the Treasury may prescribe.

(c) Contributions forwarded to the Trustee or Custodian are presumed to be deductible and are conditioned on their deductibility. Contributions that are determined by the Internal Revenue Service to not be deductible will be returned to the Employer within one (1) year after the disallowance and reduced by any losses.

3.6 Merger Of Assets From Another Plan

(a) The Employer may in its sole discretion direct the Trustee or Custodian to accept assets from another Defined Contribution Plan, or to transfer assets to another Defined Contribution Plan, provided that such transfer satisfies the requirements of Code Section 414(l) and the Regulations thereunder. The Employer, Plan Administrator, Trustee or Custodian shall have the right to refuse to accept or transfer assets for any reason, provided that nothing in this paragraph 3.6 shall give the Trustee or Custodian the right to refuse to make a direct transfer of an Eligible Rollover Distribution if requested to do so by a Participant in accordance with paragraph 6.12.

(b) When the transferor plan is a money purchase pension plan and the transferee plan (the Plan established under this document), is not a money purchase pension plan as set forth in Code Section 401(a)(11)(B)(iii)(III), the Qualified Joint and Survivor Annuity option may not be eliminated at least with respect to the benefits which are transferred.

When the transferor plan is a profit-sharing, stock bonus or cash or deferred arrangement [401(k) plan] which included the Qualified Joint and Survivor Annuity provisions but was not required to do so, upon the transfer of those assets, the transferee plan may be amended to entirely eliminate the annuity option.

3.7 Coverage Requirements

For purposes of coverage testing, a Participant is treated as benefiting under the Plan for any Plan Year during which the Participant received or is deemed to receive an allocation in accordance with Regulation Section 1.410(b)-3(a). If during the Plan Year, the number of Participants who are eligible to share in any contribution for a Plan Year is such that the Plan established under a Nonstandardized Adoption Agreement would fail to meet the requirements of Regulation Section 410(b)(1) or 410(b)(2)(A)(i), then the group of Participants eligible to share in the contribution for the Plan Year will be increased to include such minimum number of Participants who did not meet the hours requirement, as may be necessary to satisfy the applicable tests under the Code Sections referenced above. The Participants who will become eligible to share in the contribution will be those active Participants when compared to Participants who are similarly situated, are those who have completed the greatest number of Hours of Service in the Plan Year. If after such allocation, the coverage requirements of the Code are still not satisfied, allocation shall continue to be made to Participants with decreasing Hours of Service until the coverage requirements of the ratio percentage test of Code Section 410(b)(1)(A) are satisfied.

If after the application of the correction procedure in the preceding paragraph the coverage requirements are still not satisfied, the Employer may apply the same correction procedure first to those Participants who are not employed by the Employer on the last day of the Plan Year and did not meet the hours requirements and then an otherwise excludable class of Employees until the coverage requirements of the ratio percentage test of Code Section 410(b)(1)(A) are satisfied.

The preceding paragraph will not be construed to permit the reduction of any Participant’s account balance, and any amounts which were allocated to Participants whose eligibility to share in the contribution did not result from the application of the preceding paragraph will not be reallocated to satisfy such requirements. Instead, the Employer shall make an additional contribution equal to the amount which the affected Participants would have received had they been included initially in the allocation of the Employer’s contribution, even if it would cause the contributions of the Employer for the applicable Plan Year to exceed the amount which is deductible by the Employer for such Plan Year under Code Section 404. Any adjustments pursuant to this paragraph will be considered a retroactive amendment of the Plan that was adopted by the last day of the Plan Year.

Specifically excluded from the Code Section 410(b) coverage tests are those Employees who are excluded from participation in the Plan for the entire Plan Year which includes those Employees whose retirement benefits are subject to a collective bargaining agreement, nonresident aliens, those Employees excluded from Plan participation by age and Service requirements imposed by the Plan and those Employees who incur a Separation from Service during the applicable Plan Year and for the Plan Year fail to complete more than five hundred (500) Hours of Service or three (3) consecutive calendar months under the Elapsed Time method.

After the end of the Plan Year, the correction method for any coverage failure must be done in accordance with the requirements of the Employee Plans Compliance Resolution System (EPCRS) program for which they are eligible. EPCRS is currently described in Revenue Procedure 2006-27.

3.8 Eligibility For Contribution

The Employer will determine in the Adoption Agreement the conditions that Participants must meet in order to receive an allocation of an Employer contribution and any forfeitures, subject to the following:

(a) In a Plan established under a Standardized Adoption Agreement, a Participant who is employed on the last day of the Plan Year will share in the allocation of the Employer contribution in that Plan Year without regard to the Participant’s Hours of Service.

A Participant in a Plan established under a Standardized Adoption Agreement, who completed more than five hundred (500) Hours of Service, ninety-one (91) consecutive calendar days, or three (3) consecutive calendar months under the Elapsed Time method will share in the allocation of Employer contributions for the Plan Year, regardless of whether employed on the last day of the Plan Year.

(b) In a Plan established under a Nonstandardized Adoption Agreement, the Employer will elect in the Adoption Agreement whether any Employer contribution shall be allocated to any Participant who does not complete the necessary Hours of Service, requisite number of days, or consecutive calendar months requirement elected in the Adoption Agreement, subject to the Top-Heavy minimum contribution requirements, if applicable.

In a Plan established under a Nonstandardized Adoption Agreement, the Employer will elect in the Adoption Agreement whether a Participant will receive an allocation of the Employer’s contribution if not employed on the last day of the Plan Year, or if applicable, the end of the Plan Year quarter.

(c) The Employer may elect in the Standardized or Nonstandardized Adoption Agreement any other conditions a Participant must meet to receive an allocation of a contribution under the Plan established hereunder.

(d) The Adoption Agreements that accompany this Basic Plan Document #01 have been generally designed to satisfy Code Section 401(a)(4) as a designed-based safe harbor. Designed-based safe harbor contribution formulas include those that provide a uniform allocation as either a percentage of Compensation or a dollar amount. Non-designed-based safe harbor contribution formulas include a uniform points and age-based allocation formulas. The Target Benefit Plan formulas have been designed to comply with Treasury Regulations Section 1.401(a)(4)-8(b)(3).

3.9 Cross-Tested Allocation Formula

Unless otherwise elected in the Adoption Agreement, when a cross-testing formula has been elected, Employer contributions for a Plan Year will be allocated to each Employee of the Employer who has met the allocation accrual requirements as specified in the Adoption Agreement. The general nondiscrimination test under Regulations Section 1.401(a)(4)-2(c)(1) must be satisfied using equivalent accrual rates [within the meaning of Regulations Section 1.401(a)(4)-8(b)(2)] that are substituted for each Employee’s allocation rate in the determination of rate groups. The allocation rate for any Employee is equal to the sum of Employer Non-Elective Contributions and any forfeitures allocated to the Employee’s account, divided by the Employee’s Compensation as defined in paragraph 1.17. When calculating equivalent accrual rates for purposes of nondiscrimination testing, a standard interest rate and standard mortality table [within the meaning of the definitions in Regulations Section 1.401(a)(4)-12] must be used.

As elected by the Employer in the Adoption Agreement, the Employer will determine the total amount of contributions for each Plan Year and either (1) allocate such total amount to participant groups (the “Participant Group Allocation Method”) or (2) allocate such total amount using age weighted allocation rates (the “Age Weighted Allocation Method”). Employer contributions will be allocated to each eligible Participant.

(a) Participant Group Allocation Method - If the Employer has elected the Participant Group Allocation method in the Adoption Agreement, each eligible Participant of the Employer will constitute a “separate allocation group” for purposes of allocating contributions. Only a limited number of allocation rates are permitted, and the number of allocation rates cannot be greater than the maximum allowable number of allocation rates. The maximum allowable number of allocation rates is equal to the sum of the allowable number of allocation rates for eligible Non-Highly Compensated Employees (eligible NHCEs) and the allowable number of allocation rates for eligible Highly Compensated Employees (eligible HCEs). The allowable number of allocation rates for eligible HCEs is equal to the number of eligible HCEs, limited to twenty-five (25). The allowable number of eligible NHCEs is equal to the number of eligible HCEs, limited to twenty-five (25). The allowable number of NHCE allocation rates depends on the number of eligible NHCEs, limited to twenty-five (25). The allocation will be made as follows:

(1) First, the total amount of contributions is allocated among the deemed aggregated allocation groups in portion determined by the Employer. A deemed aggregated allocation group consists of all of the separate allocation groups that have the same allocation rate. Second, within each deemed aggregated allocation group, the allocated portion is allocated to each Participant in the ratio that such Participant’s Compensation as defined in paragraph 1.17, bears to the total Compensation of all Participants in the group. An allocation rate is the amount of contributions allocated to a Participant for a Plan Year expressed as a percentage of Compensation, as defined in paragraph 1.17. The number of eligible NHCEs to which a particular allocation rate applies must reflect a reasonable classification of Participants, and no Participant can be assigned to more than one (1) deemed aggregated allocation group for a Plan Year.

(2) For Plans with only one (1) or two (2) eligible NHCEs, the allowable number of NHCE allocation rates is one (1). For Plans with three (3) to eight (8) eligible NHCEs, the allowable number of NHCE allocation rates cannot exceed two (2). For Plans with nine (9) to eleven (11) eligible NHCEs, the allowable number of NHCE allocation rates cannot exceed three (3). For Plans with twelve (12) to nineteen (19) eligible NHCEs, the allowable number of NHCE allocation rates cannot exceed four (4). For Plans with twenty (20) to twenty-nine (29) eligible NHCEs, the allowable number of NHCE allocation rates cannot exceed five (5). For Plans with thirty (30) or more eligible NHCEs, the allowable number of NHCE allocation rates cannot exceed the number of eligible NHCEs divided by five (5) (rounded down to the next whole number if the result of dividing is not a whole number), but shall not exceed twenty-five (25).

(b) Age Weighted Allocation Method - If the Age Weighted Allocation Method is selected in the Adoption Agreement, the total Employer contribution will be allocated to each eligible Participant such that the equivalent benefit accrual rate for each Participant is identical. The equivalent benefit accrual rate is the annual annuity commencing at the Participant’s testing age, expressed as a percentage of the Participant’s Compensation as defined in paragraph 1.17 which is provided from the allocation of Employer contributions and forfeitures for the Plan Year, using standardized actuarial assumptions that satisfy 1.401(a)(4)-12 of the Income Tax Regulations. The Participant’s testing age is the later of Normal Retirement Age, or the Participant’s current age.

The allocation methodology used in determining a Participant’s individual allocation must satisfy one of the following three allocation rules:

(c) Minimum Allocation Gateway – Each eligible Non-Highly Compensated Employee has an allocation rate that is equal to the lesser of five percent (5%) of the Employee’s Compensation (as defined in paragraph 1.17), or one-third of the allocation rate of the Highly Compensated Employee with the highest allocation rate. The allocation rate for each group of Highly Compensated Employees will be as stated in an addendum to the Adoption Agreement.

(d) Broadly Available Allocation Rates – Each allocation rate will be currently available [within the meaning of Regulations Section 1.401(a)(4)-4(b)(2)] to a group of Employees that satisfies Code Section 410(b) without regard to the average benefit percentage test. If two allocation rates are permissively aggregated under Regulations Section 1.401(a)(4)-4(d)(4), they are aggregated and treated as a single allocation rate. The ability to disregard the age and service conditions of Regulations Section 1.401(a)(4)-4(b)(2)(ii)(A) does not apply for purposes of this paragraph. The allocation rate for each group of Employees will be stated in the addendum to either the new comparability cash or deferred and new comparability profit sharing Adoption Agreement(s) (whichever is applicable).

(e) Gradually Increasing Age or Service Schedule – Each allocation rate increases smoothly at regular intervals within a series of bands based solely on age, based solely on Years of Service, or based on the number of points representing the sum of age and Service (age and Service points), as designated in the Adoption Agreement, such that the same allocation rate applies to all Employees whose age, Years of Service, or age and Service points are within each band. If age-only bands are used, all Participants younger than age twenty-five (25) are deemed to be in the first band. If the age and Service point band is used, all Participants with a sum of age and Service that is less than twenty-five (25) are deemed to be in the first band.

The specific categories of Participant should be such that resulting allocations are provided in a definite predetermined formula that complies with Regulations Section 1.401-1(b)(1)(ii). The number of allocation rates must not exceed the maximum allowable number of allocation rates. Highly Compensated Employees may each be in separate allocation groups. Eligible Non-Highly Compensated Employees must be grouped using allocation rates specified in the Adoption Agreement, or as stated in an addendum to the new comparability cash or deferred and new comparability profit sharing Adoption Agreement whichever is applicable). The grouping of eligible Non-Highly Compensated Employees must be done in a reasonable manner and should reflect a reasonable classification in accordance with Regulations Section 1.401(b)(9)-4(b). Standard interest rates and standard mortality table assumptions in accordance with Regulations Section 1.401(a)(4)-12 must be used when testing the Plan for satisfaction of nondiscrimination requirements. In the case of self-employed individuals (i.e., sole proprietorships or partnerships), the requirements of Regulations Section 1.401(k)-1(a)(6) continue to apply, and the allocation method should not be such that a cash or deferred election is created for a self-employed individual as a result of application of the allocation method.

Standard interest rates and mortality table assumptions in accordance with Regulations Section 1.401(a)(4)-12 must be used when testing the Plan for satisfaction of the nondiscrimination requirements. A table of age-weighted factors that comply with the previous sentence may also be used.

3.10 Target Benefit Plan Contribution

The Employer’s annual contribution to a Target Benefit Plan shall be determined by a Stated Benefit Formula and corresponding factor tables contained in the Adoption Agreement and shall be allocated to Participants as provided in paragraph 5.3. This notwithstanding, the Employer’s contribution for any Plan Year shall be subject to the limitations on allocations contained in Article X and shall not be less than the minimum contribution required at Article XIV for Top-Heavy Plans.

3.11 Xxxxx-Xxxxx Plan Contribution

The Employer will irrevocably contribute the amount determined in accordance with the contribution formula or formulas elected on the Xxxxx-Xxxxx Adoption Agreement. An Employer may take credit for purposes of the Xxxxx-Xxxxx Act or any other Federal, state or municipal Xxxxx-Xxxxx prevailing wage law at the hourly rate specified in an addendum attached to the Xxxxx-Xxxxx Adoption Agreement. Contributions made by the Employer to the Plan for the Xxxxx-Xxxxx work performed by the Employer’s covered Employees during the Plan Year may be used as an offset for any Employer contributions to be made to another Defined Contribution Plan sponsored by the Employer. “Xxxxx-Xxxxx or Prevailing Wage Contributions” may be treated as Qualified Non-Elective Contributions, which become nonforfeitable and that are distributable only in accordance with the distribution provisions (other than Hardships) that are applicable to Elective Deferrals, Xxxx Elective Deferrals and Qualified Matching Contributions. Contributions made on behalf of Participants who do not perform prevailing wage work cannot be used as a credit towards meeting the Employer’s obligation under the prevailing wage or Xxxxx-Xxxxx plan.

3.12 Uniform Dollar Contribution

The Employer’s contribution to a Plan utilizing a uniform dollar allocation formula for a Plan Year shall be the same dollar amount to each Participant regardless of Compensation, Years of Service, age or any other variable set forth in the Adoption Agreement.

3.13 Uniform Points Contribution

The Employer’s contribution to a Plan utilizing a uniform points allocation formula for a Plan Year shall be in the same ratio that each Participant’s points, as elected in the Adoption Agreement, bears to the total points awarded to all Participants for the Plan Year.

3.14 403(b) Matching Contribution

If a tax-exempt Employer elects in the 401(k) Adoption Agreement to make a Matching Contribution based on the Employee’s Elective Deferral or Xxxx Elective Deferral contributions under the Code Section 403(b) Plan, the Employer shall make a Matching Contribution to the Matching Contribution Account of those Participants who make Elective Deferrals or Xxxx Elective Deferrals (while an Employee and a Participant in the Plan) and who are eligible under the Adoption Agreement to receive the Matching Contribution. Any such Matching Contribution made to the Plan will be allocated under the formula elected in the Adoption Agreement. In the event the rate of Matching Contribution is determined to be discriminatory in favor of one or more Highly Compensated Employees, that part of the Matching Contribution as is necessary to make such rate nondiscriminatory shall be forfeited. Any such amount forfeited shall be disregarded under the Plan’s provisions relating to Code Sections 401(k)(3) and 401(m)(2).

ARTICLE IV

EMPLOYEE CONTRIBUTIONS

4.1 Voluntary After-tax Contributions

If elected by an Employer in the Adoption Agreement, a Participant may make Voluntary After-tax Contributions to the Plan. These contributions are not excludable from the Participant’s gross income. Such contributions must be made in a uniform and nondiscriminatory manner. Such contributions are subject to the limitations on Annual Additions and are subject to ACP nondiscrimination testing. Any Voluntary After-tax Contribution shall not be a condition precedent to the contribution or allocation of any Employer contribution to the Participant. Under any Plan established hereunder and if permitted in the Plan’s loan policy document, a Participant may repay a defaulted loan from the Plan with voluntary after-tax dollars. The Employer may permit buy-back of amounts previously forfeited with after-tax dollars even if Voluntary After-tax Contributions are not permitted in the Plan. Any buy-back of amounts previously forfeited must be subject to uniform and nondiscriminatory rules that do not operate in favor of Highly Compensated Employees. Repayment of loans made to a Participant and buy-backs of cash-outs as described in Code Section 411(a)(7)(B) will not be considered Annual Additions as described in Regulations Section 1.415-6(b)(6). These amounts are not subject to the limitation contained in Code Section 401(m) in the year in which made, as they are not considered Annual Additions pursuant to Code Section 415.

4.2 Required After-tax Contributions

If elected by the Employer in the Adoption Agreement, each Eligible Participant shall be required to make Required After-tax Contributions to the Plan as a condition of participation in the Plan. Such contributions shall be withheld from the Employee's Compensation and shall be transmitted by the Employer to the Trustee and/or Custodian. A Participant may discontinue participation or change his or her contribution percentage in accordance with either an election on the Adoption Agreement or uniform and nondiscriminatory rules established by the Employer. If a Participant discontinues his or her contributions, such Participant may not again authorize such contributions until a change is permitted in accordance with uniform and nondiscriminatory rules established by the Employer. The Employer may reduce a Participant's contribution percentage if required to satisfy the ACP Test described in Article XI.

4.3 Qualified Voluntary Contributions

A Participant may no longer make Qualified Voluntary Contributions to the Plan for taxable years beginning after December 31, 1986. Xxxxxxx already contributed may remain in the Plan until distributed to the Participant. Such amounts will be maintained in a separate account that will be nonforfeitable at all times. The account will share in the gains and losses of the Trust in the same manner as described at paragraph 5.5. No part of the Qualified Voluntary Contribution Plan account will be used to purchase life insurance. Subject to Article VIII, Joint and Survivor Annuity Requirements (if applicable), the Participant may withdraw any part of the Qualified Voluntary Contribution account by making written application to the Plan Administrator.

4.4 Rollover Contributions

Unless elected otherwise in the Adoption Agreement, a Participant/Employee may make a Rollover Contribution to a Defined Contribution Plan established hereunder of all or any part of an amount distributed or distributable to him or her from a Qualified Plan or an individual retirement account (IRA) qualified under Code Section 408 where the IRA was used as a conduit from a Qualified Plan provided:

(a) the amount distributed to the Participant/Employee is deposited to the Plan no later than the sixtieth day after such distribution was received by the Participant/Employee,

(b) the amount distributed is not one of a series of substantially equal periodic payments made for the life (or life expectancy) of the Participant/Employee or the joint lives (or joint life expectancies) of the Participant/Employee and the Participant's/Employee’s Beneficiary, or for a specified period of ten (10) years or more,

(d) if the amount distributed included property, such property is rolled over only upon the Trustee, Custodian and/or Employer’s approval, or if sold, the proceeds of such property may be rolled over,

(e) the amount distributed would otherwise be includible in gross income (determined without regard to the exclusion for net unrealized appreciation with respect to Employer securities), and

(f) Unless otherwise elected in the Adoption Agreement, the amount rolled over does not include any amounts contributed on an after-tax basis by the Participant to the Qualified Plan.

(g) If elected by the Employer in the Adoption Agreement, the Plan will accept Participant Rollover Contributions and/or Direct Rollovers of distributions made after December 31, 2001, from the types of plans specified in the Adoption Agreement.

(h) The Plan Administrator shall be held solely responsible for determining the tax-free status of any Rollover Contribution made to this Plan, and the Trustee and/or Custodian shall have no responsibility for any such determination.

(i) A Participant or an Employee may arrange for the direct transfer of his or her entire benefit from another Qualified Plan to the Plan established hereunder. Such transfer shall be made for any reason and may be in cash and/or in-kind. The Employer, the Trustee and/or Custodian, if applicable, in their sole discretion shall have the right to refuse to accept a transfer for any reason including but not limited to the following reasons: that such assets do not comply operationally; the proposed transfer would result in a prohibited transaction; the assets are not readily marketable; or they are not compatible with the Employer's investment policy objectives. If necessary, for accounting and recordkeeping purposes, Transfer Contributions shall be treated in the same manner as Rollover Contributions.

(j) In the event the Employer accepts a Transfer Contribution from a Plan in which the Participant or Employee was directing the investment of his or her account, the Employer may, if the Employer determines that it is appropriate and not in violation of the nondiscrimination rules under Regulation Section 1.401(a)(4)-4, permit the Participant or Employee to continue to direct his or her investments in accordance with paragraph 12.7 with respect only to such Transfer Contribution.

(k) Notwithstanding any provision of this Plan to the contrary, to the extent that any optional form of benefit under the Plan established hereunder permits a distribution prior to the Employee’s Normal Retirement Age, death, Disability, or severance from employment, and prior to Plan termination, the optional form of benefit is not available with respect to benefits attributable to assets (including the post-transfer earnings thereon) and liabilities that are transferred, within the meaning of Code Section 414, to this Plan from a money purchase pension plan qualified under Code Section 401(a) (other than any portion of those assets and liabilities attributable to Voluntary After-tax Contributions).

(l) Unless otherwise elected in the Adoption Agreement, an Employee is not required to be a Participant in order to make a Rollover or Transfer Contribution.

(m) If elected in the Adoption Agreement, the Plan shall accept a Direct Rollover from another Xxxx Elective Deferral Account under a retirement plan as described in Code Section 402A(e)(1). When a portion of a distribution is from a Xxxx Elective Deferral Account, the rollover of any such distribution pursuant to Code Section 402A(c)(3) must be accomplished through a Direct Rollover and can only be made to a plan qualified under Code Section 401(a) which agrees to separately account for the amount not includible in income. The transferring Plan shall report the amount of the investment in the contract (contributions as well as associated earnings) and the first year of the five (5) year period to the plan established hereunder. For purposes of this paragraph, the five (5) taxable year period of Plan participation is the period of five (5) consecutive taxable years that begins with the first day of the first taxable year in which the Participant makes a designated Xxxx Elective Deferral to any designated Xxxx Elective Deferral Account established for the Participant under the plan and ends when five (5) consecutive taxable years have been completed. For this purpose, the first taxable year in which a Participant makes a designated Xxxx Elective Deferral is the year in which the amount is first includible in the Participant’s gross income.

4.5 Voluntary Direct Transfers Between Plans

A Participant or Employee shall be able to transfer amounts up to his or her entire benefit between qualified Defined Contribution Plans [other than a direct transfer described in Code Section 401(a)(31)] without regard to whether the Participant’s benefit is immediately distributable or results in the elimination or reduction of Code Section 411(d)(6) protected benefits. Such a transfer does not violate Code Section 411(d)(6) if the following requirements are met:

(a) The plan from which the benefits are transferred must provide that the transfer is conditioned upon a voluntary, fully informed election by the Participant to transfer his or her entire benefit to another qualified Defined Contribution Plan. As an alternative to the transfer, the Participant must be offered the opportunity to retain the Participant’s Code Section 411(d)(6) protected benefits under the Plan [or if the Plan is terminating, to receive any optional form of benefit for which the Participant is eligible under the Plan as required by Code Section 411(d)(6)].

(b) The transferring plan must be the same plan type as the Plan sponsored by the Employer. When benefits are being transferred from a qualified cash or deferred arrangement under Code Section 401(k), the benefits must be transferred to a qualified cash or deferred arrangement under Code Section 401(k). Money purchase pension plans must be transferred to money purchase pension plans. Benefits transferred from a profit-sharing plan other than a 401(k) plan or employee stock ownership plan may be transferred to any type of Defined Contribution Plan, even if the event is not one that allows a distribution.

(c) This type of elective transfer is only available for transfers made on or after September 6, 2000, even if the transaction or change of employment occurred prior to that date.

(d) If the conditions outlined in (a), (b), and (c) above are met, the Employer’s Plan is not required to protect optional forms of benefits available under the prior plan with respect to any benefit transferred [except as required by the Qualified Joint and Survivor Annuity requirements under Code Sections 401(a)(11) and 417]. Such a transfer is not a protected optional form of benefit, but rather is a “right or feature” under Regulation Section 1.401(a)(4)-4(e).

4.6 Elective Deferrals In A 401(k) Plan

(a) Elective Deferrals are Employer contributions made to the Plan at the election of the Participant in lieu of cash compensation. With respect to any taxable year, a Participant’s Elective Deferrals are the sum of all Employer contributions made on behalf of such Participant pursuant to an election to defer under any qualified cash or deferred arrangement (“CODA”) described in Code Section 401(k), any salary reduction simplified employee pension described in Code Section 408(k)(6), any SIMPLE IRA Plan described in Code Section 408(p), any Plan described under Code Section 501(c)(18), and any Employer contributions made on the behalf of a Participant for the purchase of an annuity contract under Code Section 403(b) pursuant to a salary reduction agreement. For Plan Years beginning after 2005, the term “Elective Deferrals” includes both pre-tax Elective Deferrals and Xxxx Elective Deferrals. Pre-tax Elective Deferrals are a Participant’s Elective Deferrals that are not includible in the Participant’s gross income at the time deferred. Elective Deferrals or Xxxx Elective Deferrals shall not include any deferrals properly distributed as Excess Annual Additions.

(b) A Participant may enter into a Salary Deferral Agreement with the Employer authorizing the Employer to withhold a portion of such Participant's Compensation not to exceed the dollar limit under Code Section 402(g), as adjusted under Code Section 415(d), for the Applicable Calendar Year, or the percentage or dollar amount of Compensation specified in the Adoption Agreement except to the extent permitted under paragraph 4.7 and Code Section 414(v), if applicable. The dollar limitation contained in Code Section 402(g) is $10,500 for taxable years beginning in 2000 and 2001 increasing to $11,000 for taxable years beginning in 2002 and increasing by $1,000 for each year thereafter up to $15,000 for taxable years beginning in 2006 and later years. After 2006, the $15,000 limit will be adjusted by the Secretary of the Treasury for cost-of-living increases under Code Section 402(g)(4). Any such adjustments will be in multiples of $500.

(1) The date of the Participant’s entry (or reentry) into the Plan;

(2) the execution of the Participant’s Salary Deferral Agreement;

(3) the date the Employer adopts the 401(k) Plan by executing the Adoption Agreement;

(4) the Effective Date of the Elective Deferral or Xxxx Elective Deferral provisions as specified in the Adoption Agreement;

(5) The first Entry Date after the Participant becomes subject to the Plan’s Automatic Enrollment Provisions.

(d) Any such contribution shall be credited to the Employee's Elective Deferral or Xxxx Elective Deferral account. A Participant may terminate deferrals at any time. A Participant may amend his or her Salary Deferral Agreement to increase or decrease his or her deferral percentage upon notice in accordance with the provisions in the Adoption Agreement or such other uniform and nondiscriminatory procedures. The Employer shall determine the permitted frequency of such changes, which shall be no less frequently than once each calendar year. Any such election will be effective as soon as practicable following the receipt of the notification by the Employer in accordance with uniform and nondiscriminatory procedures established and communicated to the Participants. The Participant shall notify the Employer of any change in his or her deferral election in writing or in such other form or manner as permitted. The Employer may, notwithstanding any limit to the contrary in the Adoption Agreement, limit the maximum deferral percentage for any Employee including but not limited to Highly Compensated Employees. If a Participant terminates his or her agreement, such Participant shall be permitted to put a new Salary Deferral Agreement into effect as provided in the Adoption Agreement or any other uniform and nondiscriminatory procedures established. The Employer may also amend or terminate said agreement on notice to the affected Participant, if required to maintain the qualified status of the Plan.

(e) If permitted by the Employer, a Participant who has not authorized the Employer to withhold the maximum annual deferral amount pursuant to Code Section 402(g) and who desires to increase the total amount withheld for a Plan Year may authorize the Employer to withhold a supplemental amount up to 100% of his or her Compensation for one or more pay periods. In no event may the amounts withheld under the Salary Deferral Agreement plus any additional amount deferred pursuant to this paragraph, exceed the lesser of 100% of a Participant's Compensation or any other limitation elected in the Adoption Agreement by the Employer.

(f) If the Plan permits Voluntary After-tax Contributions and the Employer has elected in the Adoption Agreement that all or any portion of amounts previously withheld under any Salary Deferral Agreement may be recharacterized as Voluntary After-tax Contributions within the Plan Year, such Elective Deferrals may be so recharacterized.

(g) Elective Deferrals and Xxxx Elective Deferrals shall be deposited in the Plan’s Trust as soon as administratively feasible after being withheld from the Participant's Compensation at the earliest date on which the contributions can reasonably be segregated from the Employer’s general assets, but no later than the time prescribed by the Code, ERISA or by applicable Treasury or Department of Labor Regulations.

(h) Elective Deferrals contributed to the Plan as one type either pre-tax Elective Deferrals or Xxxx Elective Deferrals may not be reclassified as the other type.

(i) Xxxx 401(k) Contributions may be treated as Catch-Up Contributions.

(j) Employer Contributions generally may not be deemed as Elective Deferrals or Xxxx Elective Deferrals if they are remitted to the Trust before the payroll date associated with services rendered or before the services have been performed. An exception to the foregoing timing rule on deposits to the Trust is available where the earlier remittance of Elective Deferral or Xxxx Elective Deferral amounts is on account of bona fide administrative considerations (as more fully described in the Income Tax regulations), and that the timing of such remittance is not made for the principal purpose of accelerating deductions.

4.7 Catch-Up Contributions

If elected in the Adoption Agreement, Employees who are eligible to make Elective Deferrals or Xxxx Elective Deferrals under this Plan and who have attained age fifty (50) before the end of their taxable 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 not be taken into account for purposes of the provisions of the Plan implementing the required limitations of Code Sections 402(g) and 415. The Plan shall not be treated as failing to satisfy the provisions of the Plan implementing the requirements of Code Section 401(k)(3), 401(k)(11), 401(k)(12), 410(b), or 416, as applicable, by reason of the making of such Catch-Up Contributions. “Catch-Up Contributions” are Elective Deferrals or Xxxx Elective Deferrals made to the Plan that are in excess of an otherwise applicable Plan limit and that are made by Participants who are age fifty (50) or over by the end of their taxable years. An otherwise applicable Plan limit is a limit in the Plan that applies to Elective Deferrals or Xxxx Elective Deferrals without regard to Catch-Up Contributions, such as the limits on annual additions, the dollar limitation on Elective Deferrals or Xxxx Elective Deferrals under Code Section 402(g) (not counting Catch-Up Contributions) and the limit imposed by the Actual Deferral Percentage (ADP) test under Code Section 401(k)(3). Catch-Up Contributions for a Participant for a taxable year may not exceed:

(a) the dollar limit on Catch-Up Contributions under Code Section 414(v)(2)(B)(i) for the taxable year, or

(b) when added to other Elective Deferrals or Xxxx Elective Deferrals, seventy-five percent (75%) (or as elected on the Adoption Agreement) of the Participant’s Compensation for the taxable year.

The dollar limit on Catch-Up Contributions under Code Section 414(v)(2)(B)(i) is $1,000 for taxable years beginning in 2002, increasing by $1,000 for each year thereafter up to $5,000 for taxable years beginning in 2006 and later years. After 2006, the $5,000 limit will be adjusted by the Secretary of the Treasury for cost-of-living increases under Code Section 414(v)(2)(C). Any such adjustments will be in multiples of $500. Different limits apply to Catch-Up Contibutions under SIMPLE 401(k) Plans. Catch-Up Contributions are not subject to the limit on Annual Additions, are not counted in the ADP test and are not counted in determining the minimum allocation under Code Section 416 (but Catch-Up Contributions made in prior years are counted in determining whether the Plan is Top-Heavy). Provisions in the Plan relating to Catch-Up Contributions apply to Elective Deferrals or Xxxx Elective Deferrals made after 2001.

4.8 Elective Deferrals In A SIMPLE 401(k) Plan

If the Employer has executed a SIMPLE 401(k) Adoption Agreement, the following provisions shall apply:

(a) An Eligible Employee may enter into a Salary Deferral Agreement with the Employer authorizing the Employer to withhold a portion of such Eligible Employee’s Compensation, not to exceed the limitation on Elective Deferrals in effect for the calendar year. The limitation on Elective Deferrals is $6,000 for 2000, $6,500 for 2001, $7,000 for 2002 and increasing by $1,000 for each year thereafter up to $10,000 for 2005 and later years. After 2005, the $10,000 limit will be adjusted by the Secretary of the Treasury for cost-of-living increases under Code Section 408(p)(2)(E). Any such adjustments will be in multiples of $500. No Eligible Employee shall be permitted to make Elective Deferrals under this Plan, or any other Qualified Plan maintained by the Employer, during any taxable year in excess of the dollar limitation contained in Code Section 402(g) in effect in at the beginning of such taxable year. The $6,000 limit may be reduced if an Eligible Employee contributes pre-tax contributions to Qualified Plans of other employers.

(b) In addition to any other election periods provided, each Participant may make or modify his Salary Deferral Agreement during the sixty (60) day election period immediately preceding each January 1.

(c) For the Plan Year in which an Eligible Employee becomes eligible to make Elective Deferrals under the SIMPLE 401(k) Plan provisions, the sixty (60) day election period requirement of paragraph 4.8(b) above is deemed satisfied if the Eligible Employee may make or modify a Salary Deferral Agreement election during a sixty (60) day period that includes either the date the Employee becomes eligible, or the day before.

(d) An Eligible Employee may amend his or her Salary Deferral Agreement to increase or decrease the percentage upon proper and timely notice to the Employer. The Employer shall determine the permitted frequency of such changes. An Eligible Employee may terminate his or her Salary Deferral Agreement at any time during the Plan Year upon notice to the Employer. If an Eligible Employee terminates his or her Salary Deferral Agreement, such Eligible Employee will be permitted to execute a new Salary Deferral Agreement in accordance with the provisions elected in the Adoption Agreement or any other uniform and nondiscriminatory procedure. The Employer may also amend or terminate any Salary Deferral Agreement on notice to the affected Eligible Employee, if required to maintain the qualified status of the Plan.

(e) If permitted by the Employer, a Participant who has not authorized the Employer to withhold at the maximum annual deferral amount and desires to increase the total amount withheld for a Plan Year, such Participant may authorize the Employer to withhold an amount up to 100% of his or her Compensation for one or more pay periods. In no such event may the amounts withheld under the Salary Deferral Agreement, plus any additional amount deferred pursuant to this paragraph, exceed the lesser of 100% of a Participant’s Compensation. A Participant may terminate their Salary Deferral Agreement at any time.

(f) Elective Deferrals shall be deposited in the Plan’s Trust as soon as administratively feasible after being withheld from the Participant's Compensation at the earliest date on which the contributions can reasonably be segregated from the Employer’s general assets but no later than the time prescribed by the Code, ERISA or by applicable Treasury or Department of Labor Regulations.

(g) The Employer will notify each Eligible Employee prior to the sixty (60) day election period described in paragraph 4.8(b) that he or she can make an Elective Deferral or modify a prior election during that period.

(h) The notification described in this subparagraph will indicate whether the Employer will provide a Matching Contribution described in paragraph 3.3(a) or a 2% Non-Elective Contribution described in paragraph 3.3(b).

(i) The Plan is not treated as a Top-Heavy Plan under Code Section 416 for any Plan Year for which the SIMPLE 401(k) Plan provisions apply.

(j) Except to the extent permitted under subparagraph (k) below, the Adoption Agreement, EGTRRA §631 and Code Section 414(v), the maximum salary reduction contribution that can be made to this Plan is the amount determined under Code Section 408(p)(2)(A)(ii) for the calendar year.

(k) Beginning in 2002, if elected by the Employer in the Adoption Agreement, all Employees who are eligible to make Elective Deferrals under this Plan and who have attained age fifty (50) before the end of the calendar year shall be eligible to make Catch-Up Contributions in accordance with, and subject to the limitations of, Code Section 414(v). Allowable Catch-Up Contributions are $500 for 2002, increasing by $500 for each year thereafter up to $2,500 for 2006. After 2006, the $2,500 limit will be adjusted by the Secretary of the Treasury for cost-of living increases under Code Section 414(v)(2)(C). Any such adjustments will be in multiples of $500. Catch-Up Contributions are otherwise treated the same as other Elective Deferrals. Such Catch-Up Contributions shall not be taken into account for purposes of the provisions of the Plan implementing the required limitations of Code Sections 401(k)(11), 408(p)(2)(A)(ii), 410(b) and 415(c) as applicable, by reason of the making of such Catch-Up Contributions.

(l) The ADP and ACP tests described in Article XI are treated as satisfied for any Plan Year in which this paragraph applies.

4.9 Xxxx Elective Deferrals In A 401(k) Plan

If elected by the Employer in the Adoption Agreement, eligible Employees (“Participants”) may make a designated Xxxx contribution to a 401(k) Plan as described in Code Section 402A. The term designated Xxxx contribution (which for purposes of this Plan shall also be referred to as a “Xxxx Elective Deferral”) shall mean an Elective Deferral made under a qualified cash or deferred arrangement that qualifies as a “qualified” Xxxx contribution Plan pursuant to Code Section 402A(b) and, to the extent permitted under the Plan, is:

(a) designated irrevocably by the Participant at the time of the cash or deferred election as a Xxxx Elective Deferral;

(b) treated by the Employer as includible in the Participant’s income at the time the Employee would have received the amount in cash if the Participant had not made the cash or deferred election (i.e., by treating the contributions as wages subject to applicable withholding requirements); and

Under the separate accounting requirement of this paragraph, contributions and withdrawals of Xxxx Elective Deferrals must be credited and debited to a Xxxx Elective Deferral Account maintained for the Participant who made the designation and the Plan must maintain a record of the Participant’s investment in the contract (i.e., Xxxx Elective Deferrals that have not been distributed) with respect to the Participant’s Xxxx Elective Deferral Account. In addition, gains, losses, and other credits or charges must be separately allocated on a reasonable and consistent basis to the Xxxx Elective Deferral Account and other accounts under the Plan. Forfeitures may not be allocated to the Xxxx Elective Deferral Account. The separate accounting requirement applies at the time the Xxxx Elective Deferral is contributed to the Plan and must continue to apply until the Xxxx Elective Deferral Account is completely distributed. No contributions other than designated Xxxx Elective Deferrals and Rollover Contributions described in Code Section 402A(c)(3)(B) are permitted to be allocated to a designated Xxxx Elective Deferral account.

A Xxxx Elective Deferral must satisfy the requirements applicable to Elective Deferrals made under a qualified cash or deferred arrangement. A Xxxx Elective Deferral must satisfy the requirements of Regulations Section 1.401(k)-1(c) and (d) and is treated as an Employer Contribution for purposes of Code Sections 401(a), 401(k), 402, 404, 409, 411, 412, 415, 416 and 417. Additionally, Xxxx Elective Deferrals are treated as Elective Deferrals for purposes of the ADP Test and are subject to the rules of Code Section 401(a)(9)(A) and (B) in the same manner as an account that contains pre-tax Elective Deferrals. The rules regarding the frequency of elections apply in the same manner to both pre-tax Elective Deferrals and designated Xxxx Elective Deferrals. Thus, an Employee must have an effective opportunity to make (or change) an election to make Xxxx Elective Deferrals at least once during each Plan Year.

The Employer may make Matching Contributions based on a Participant’s Xxxx Elective Deferrals based on a formula elected in the Adoption Agreement. Matching Contributions shall not be allocated to any Xxxx Elective Deferral account. Any Matching Contribution shall be allocated to the Participant’s Matching Contribution Account. Xxxx Elective Deferrals may be treated as Catch-Up Contributions.

4.10 Automatic Enrollment

(a) If the Employer so elects in the Adoption Agreement, each Employee eligible under the Employer’s Code Section 401(k) cash or deferred arrangement shall automatically become a Participant in the Plan as of the first Entry Date after satisfying the Plan’s eligibility requirements. The default deferral contributions are to be treated as pre-tax Elective Deferrals. The Employer may elect in the Nonstandardized Adoption Agreement to apply the automatic enrollment provisions to current Employees and Participants or only to Employees hired on or after the Effective Date of the adoption of or the amendment to the Plan providing for the automatic enrollment provisions. If the Employer elects the provision to apply to current Employees, the Employer will apply the automatic enrollment provision to Employees who have not made an affirmative election to defer an amount to the Plan, including a zero (0) amount.

(b) After satisfying the Plan’s eligibility requirements, each Employee will have his or her Compensation automatically reduced by the percentage elected in the Adoption Agreement. These amounts will be contributed to the Plan. An election by the Employee not to make Elective Deferrals or to contribute a different percentage may be made at any time. The election is effective for the first pay period and subsequent pay periods (until superseded by a subsequent election) if filed when the Employee is hired, or within a reasonable period thereafter ending before the Compensation for the first pay period is currently made available. In the event an Employee has Elective Deferrals withheld pursuant to this provision and no investment directive has been received, any cash received shall be invested as provided for in paragraph 13.6 herein or another appropriate vehicle. If an Employee elects to receive cash in lieu of Elective Deferrals and the election is made when the Employee is hired or within a reasonable period thereafter ending before the Compensation is currently available, then no Elective Deferrals for the first pay period or subsequent pay periods are made on the Employee’s behalf to the Plan until the Employee makes a subsequent affirmative election to reduce his or her Compensation. Elections filed at a later date are effective as soon as administratively feasible pursuant to the election in the Adoption Agreement.

(c) If so elected in the Adoption Agreement, for those current Participants who are deferring at a percentage or dollar amount less than the amount elected on the Adoption Agreement, the Employer will in the first payroll period after the effective date of the amendment reduce the Participant’s Compensation by the difference between the Participant’s current deferral election and the election as stated on the Adoption Agreement.

(d) At the time an Employee is hired, the Plan Administrator shall provide the Employee a notice that explains the automatic enrollment provision. This notice will also explain the Employee’s right to elect to have no such Elective Deferrals made to the Plan or to alter the amount of those contributions. This notice will include the procedure for exercising the right and the timing for implementation of any such election. The Plan Administrator shall provide each Participant in the Plan with an annual notice of his or her Elective Deferral percentage and each Participant’s right to change the percentage, including the procedure for exercising that right and the timing for implementation of any such election. Prior to an Employee’s automatic enrollment becoming effective, the Plan Administrator will provide such Employee with appropriate guidance as to the procedures then in effect, for the Employee to make alternative elections referenced above. Each Employee deferring Compensation pursuant to this paragraph shall be deemed to have consented to an Elective Deferral contribution in the amount specified by the Employer in the Adoption Agreement, unless he/she has filed an election to the contrary with the Plan Administrator pursuant to the Plan’s administrative procedures.

(e) The Employer who has adopted the automatic enrollment provisions may adopt an administrative policy that increases the automatic deferral default amount each year in which the automatic enrollment provision is in effect. Unless the Employer specifies a different incremental amount, the automatic deferral default amount shall be no less than 3% in the first full year of a Participant’s participation in the Plan, increasing to no less than 4% in the following Plan Year, no less than 5% in the second following Plan Year, and no less than 6% in all subsequent years.

4.11 RESERVED

4.12 Make-Up Contributions Under USERRA

A Participant who has the right to make-up Elective Deferrals, Xxxx Elective Deferrals, Voluntary After-tax Contributions and/or Required After-tax Contributions under USERRA shall be permitted to increase his or her Elective Deferral with respect to a make-up year without regard to any provision limiting contributions for such Plan Year. Make-up contributions shall be limited to the maximum amount permitted under the Plan and the statutory limitations applicable with respect to the make-up year. Employee-related make-up contributions must be made within the time period beginning on the date of reemployment and continuing for the lesser of five (5) years or three (3) times the period of military service.

ARTICLE V

PARTICIPANT ACCOUNTS

5.1 Separate Accounts

The Plan Administrator or its agent shall establish a separate recordkeeping account for each Participant showing the fair market value of his or her Plan benefits. Each Participant's account may be separated for recordkeeping purposes into the following sub-accounts:

(a) Employer contributions:

(1)

Non Safe-Harbor Matching Contribution Formula 1 Contributions

(2)

Non Safe-Harbor Matching Contribution Formula 2 Contributions

(3)

Qualified Matching Contributions

(4)

Qualified Non-Elective Contributions

(5)

Non-Elective Contributions Formula 1 Contributions

(6)

Non-Elective Contributions Formula 2 Contributions

(7)

Safe Harbor Matching Contributions

(8)

Safe Harbor Non-Elective Contributions

(9)

Xxxxx-Xxxxx Contributions

(10)

Target Benefit Contributions

(11)

SIMPLE 401(k) Matching Contributions

(12)

SIMPLE 401(k) Non-Elective Contributions

(13)

Money Purchase Pension Plan Contributions

(b) Employee contributions:

(1)

Voluntary After-tax Contributions

(2)

Qualified Voluntary Contributions

(3)

Elective Deferrals [other than Xxxx Elective Deferrals]

(4)

Xxxx Elective Deferrals

(5)

Required After-tax Contributions

(6)

Rollover Contributions

(7)

Transfer Contributions

(8)

Elective Deferrals in a SIMPLE 401(k) Plan

(9)

Deemed Traditional IRA Contributions

(10)

Deemed Xxxx XXX Contributions

5.2 Valuation Date

The Trustee shall value the Trust at the fair market value as of each Valuation Date and those Valuation Dates elected in the Adoption Agreement or as directed in writing by the Plan Administrator.

The fair market value of securities listed on a registered stock exchange will be the prices at which they were last traded on such exchange preceding the close of business on the Valuation Date. If the securities were not traded on the Valuation Date, or if the exchange on which they are traded was not open for business on the Valuation Date, then the securities will be valued at the prices at which they were last traded prior to the Valuation Date. Any unlisted security will be valued at its bid price next preceding the close of business on the Valuation Date, which bid price will be obtained from a registered broker or an investment banker. To determine the fair market value of assets other than securities for which trading or bid prices can be obtained, the Trustee may use any reasonable method to determine the value of such assets, or may elect to employ one or more appraisers for that purpose and rely on the values established by such appraiser or appraisers.

All allocations for a particular Plan Year will be made as of the last Valuation Date(s) of that Plan Year or such other dates determined by the Plan Administrator.

5.3 Allocations To Participant Accounts

As of each Valuation Date elected by the Employer in the Adoption Agreement and/or on any date within the allocation period selected in writing by the Plan Administrator, each Participant's account shall be adjusted to reflect:

(a) the Participant's share of the Employer's contribution and forfeitures as determined in the Adoption Agreement,

(b) any Employee contributions,

(c) any repayment of amounts previously distributed to a Participant upon a separation from Service and repaid by the Participant since the last Allocation Date,

(d) the Participant's proportionate share of any investment earnings and increase in the fair market value of the Trust since the last Allocation Date, and

(e) loan repayments of principal and interest.

The Employer shall deduct from each account:

(f) any withdrawals or payments made from the Participant's account since the last Allocation Date,

(g) the Participant's proportionate share of any decrease in the fair market value of the Trust since the last allocation Date, and

(h) the Participant's proportionate or “per capita” share of any fees and expenses paid from the Plan.

5.4 Allocating Employer Contributions

(a) The Employer must specify in the Adoption Agreement the manner in which the Employer’s contribution shall be allocated to Participants including any minimum contribution for Top-Heavy Plans. Employer contributions shall be allocated to all Participants eligible to receive a contribution as provided in the Adoption Agreement.

(b) Notwithstanding any provision of this Plan to the contrary, Participants will accrue the right to share in allocations of Employer contributions with respect to periods of qualified military service as provided in Code Section 414(u).

(c) At the end of each Plan Year the Plan Administrator shall re-determine any Matching Contribution for each Participant based on his or her eligible annual Compensation in accordance with the Matching Contribution formula elected by the Employer in the Adoption Agreement. Any Participant for whom any Matching Contribution has not been sufficiently made in accordance with the Matching Contribution formula elected by the Employer shall receive an additional Matching Contribution so that the total annual deferrals (whether pre-tax or after-tax) reflected as a percentage of eligible annual Compensation are matched in accordance with the Matching Contribution formula (“true-up” of Matching Contributions) selected by the Employer in the Adoption Agreement. If no election is made in the Adoption Agreement, no true-up of Matching Contributions will occur.

5.5 Allocating Investment Earnings And Losses

Account balances are adjusted to reflect actual income and investment gains and losses from the period beginning on the day following the last Valuation Date and ending on the current Valuation Date. Each Participant's account shall receive a proportionate share of the actual income and investment gains and losses during the period. The value of accounts for allocation purposes shall be based on the value of all Participant accounts (without regard to any portion of any such account attributable to segregated investments) as of the last Valuation Date less withdrawals, distributions and expenses plus any contributions including deferrals (whether pre-tax or after-tax) if any, paid from the Trust since the last Valuation Date. Investment gains and losses shall be credited to all Participant accounts having a balance on the Valuation Date regardless of the vested status of such account and regardless of the Participant's employment status. The Plan Administrator shall also have the right to adopt an alternative procedure for allocating income and investment gains and losses provided that such alternative procedure is uniform and does not discriminate in favor of Highly Compensated Employees. Any change in procedure shall be effective as of the next following Valuation Date or such other date as agreed to by the Employer and the Plan Administrator. Accounts with segregated investments shall receive the income or loss on such segregated investments. Investment gains or losses are determined separately for each investment alternative offered under the Plan.

(a) The value of a Participant’s account invested in a mutual fund (Registered Investment Company) will equal the value of a share in such fund multiplied by the number of shares credited to the Participant’s account.

(b) In the case of any pooled investment vehicle, earnings, gains or losses on the pooled investment vehicle will be allocated among the Participant’s accounts in proportion to the value of each Participant’s account invested in that investment vehicle immediately prior to the Valuation Date. The gain or loss attributed to each investment vehicle will be credited to or charged against the Participants’ account. Alternatively, the Plan Administrator or his designate may establish unit values for each pooled investment vehicle offered under the Plan in accordance with uniform procedures established by the Plan Administrator for this purpose. The value of the portion of a Participant’s account invested in a pooled investment vehicle will equal the value of a unit in such investment vehicle multiplied by the number of units credited to the account.

(c) In the case of any investment that is held specifically for a Participant’s account, any gain or loss on such investment will be charged or credited to that Participant’s account.

5.6 Allocation Adjustments

The Plan Administrator or his designate, if applicable, shall have the right to re-determine the value of Participant accounts if a previous allocation or valuation was performed incorrectly. Such re-determination shall be made without regard to the reason for the incorrect allocation. Such reasons may include, but are not limited to, incorrect contribution or Employee information provided by the Employer or representative of the Employer, incorrect valuation of Plan assets, incorrect determination of investment income and gains or losses, improper interpretation of the Plan's allocation formulas or procedures, erroneous omission of Top-Heavy minimum contributions and failure to transmit, receive or interpret amendments to the allocation formulas, methods or procedures. Subject to express limits that may be imposed under the Code, the Plan Administrator reserves the right to delay the processing of any contribution, distribution or other transaction for any legitimate business reason (including, but not limited to, failure of systems or computer programs, failure of means of transmission of data, force majeure, the failure of any Service Provider to timely receive values or prices, or to correct for its errors omissions or the errors or omissions of any Service Provider). After having made any necessary adjustments, the Plan Administrator or his designate, if applicable, may issue either revised or adjusted statements to Participants with an explanation of the allocation adjustments.

5.7 Participant Statements

The Plan Administrator shall prepare a statement for each Participant not less frequently than annually. Statements may be prepared more frequently, as may be agreed between the Plan Administrator and the Service Provider or other entity responsible for the maintenance of Plan records or for valuing Plan assets. Each statement shall show the additions to and subtractions from the Participant's account for the period since the last such statement and shall show the fair market value of the Participant's account as of the current statement date.

5.8 Changes In Method And Timing Of Valuing Participants’ Accounts

If necessary or appropriate, the Plan Administrator may establish different or additional uniform and nondiscriminatory procedures for determining the fair market value of Participant’s accounts under the Plan.

5.9 Xxxx Elective Deferral Account

The Xxxx Elective Deferral account is the required separate account maintained to record the contribution and withdrawal of a Participant’s Xxxx Contributions and other adjustments as required by the Plan. Forfeitures may not be allocated to a Xxxx Elective Deferral Account and no contributions other than designated Xxxx Elective Deferrals will be allocated. If elected in the Adoption Agreement, Direct Rollover contributions described in Code Section 402A(c)(3) are permitted to be allocated to the Xxxx Elective Deferral Account. Each Participant’s Xxxx Elective Deferral Account shall continue to be maintained and administered separately until it is completely distributed. Income, losses and other credits or charges must be separately allocated on a reasonable and consistent basis to the Participant’s Xxxx Elective Deferral Account and other accounts under the Plan to ensure that the Xxxx Elective Deferral account maintains a record of the Participant’s interest in the Plan.

ARTICLE VI

RETIREMENT BENEFITS AND DISTRIBUTIONS

6.1 Normal Retirement Benefits

A Participant shall be entitled to receive the balance held in his or her account upon attaining his or her Normal Retirement Age or at such earlier dates as the provisions of this Article VI and the Adoption Agreement may permit. If a Participant elects to continue working past his or her Normal Retirement Age, he or she will continue as an active Participant. If the Employer elects otherwise in the Adoption Agreement, distribution shall be made to such Participant at his or her request prior to his or her actual retirement. Distribution shall be made in the normal form, or if elected, in one of the optional forms of payment provided in the Adoption Agreement.

6.2 Early Retirement Benefits

If elected in the Adoption Agreement, an Early Retirement benefit may be available to individuals who meet the age and Service requirements that are specified in the Adoption Agreement. A Participant who attains his or her Early Retirement Date will become fully vested, regardless of any vesting schedule which otherwise might apply. If a Participant separates from Service with a nonforfeitable benefit before satisfying the age requirements, but after having satisfied the Service requirement, the Participant will be entitled to elect an Early Retirement benefit upon satisfaction of the age requirement.

6.3 Benefit Upon Death

Upon the death of a Participant prior to termination of employment, or upon the death of a terminated Participant prior to distribution of his or her Vested Account Balance, his or her Beneficiary will be entitled to the Participant’s Vested Account Balance determined as of the most recent Valuation Date coinciding with or immediately preceding the date of distribution. A Participant who dies prior to attainment of Normal Retirement Age but before termination of employment will become fully vested, regardless of any vesting schedule which otherwise might apply. If any Beneficiary who is alive on the date of the Participant’s death dies before receiving the entire death benefit to which he or she is entitled, the balance of the death benefit will be distributed to the Beneficiary’s Beneficiary in accordance with paragraph 7.6. The Plan Administrator’s determination that a Participant has died and that a particular person has a right to receive a death benefit will be final. Distribution will be made in accordance with paragraph 7.6.

6.4 Benefit Upon Disability

If a Participant suffers a Disability prior to termination of employment and terminates employment with the Employer as a result of that Disability, or if a terminated Participant suffers a Disability prior to a distribution of his or her Vested Account Balance, he or she will be entitled to his or her Vested Account Balance determined as of the most recent Valuation Date coinciding with or immediately preceding the date of distribution. A Participant who retires prior to attainment of Normal Retirement Age but before termination of employment on account of a Disability will become fully vested, regardless of any vesting schedule which otherwise might apply.

6.5 Benefits On Termination Of Employment

(a) If a Participant terminates employment prior to Normal Retirement Age, such Participant shall be entitled to receive the vested balance held in his or her account payable at Normal Retirement Age in the normal form, or if elected, in one of the other forms of payment provided hereunder and by the Employer in the Adoption Agreement. If applicable, the Early Retirement benefit provisions may be elected. Notwithstanding the preceding, a former Participant may, if allowed in the Adoption Agreement, make application to the Employer requesting early payment of any deferred vested and nonforfeitable benefit due.

(b) For purposes of this Article, if the value of a Participant's Vested Account Balance is zero, the Participant shall be deemed to have received a distribution of such Vested Account Balance immediately following termination. If the Participant is reemployed prior to incurring five (5) consecutive one (1) year Breaks in Service or Periods of Severance, he or she will be deemed to have immediately repaid such distribution. Notwithstanding the above, if the Employer maintains or has maintained a policy of not distributing any amounts until the Participant's Normal Retirement Age, the Employer can continue to uniformly apply such policy.

(c) If a Participant who is not 100% vested receives or is deemed to receive a distribution pursuant to this paragraph and resumes employment covered under this Plan, the Participant shall have the right to repay to the Plan the full amount of the distribution attributable to both Employer Contributions and Employee Contributions including Elective Deferrals and/or Xxxx Elective Deferrals on or before the earlier of the date the Participant incurs five (5) consecutive one (1) year Breaks in-Service following the date of distribution or five (5) years after the first date on which the Participant is subsequently reemployed. In such event, the Participant's account shall be restored to the value thereof at the time the distribution was made. The account may be further increased by the Plan’s income and investment gains and/or losses on the undistributed amount from the date of the distribution to the date of repayment.

(d) If a Participant terminates employment with a Vested Account Balance greater than $5,000, and elects (with his or her Spouse's consent, if required) to receive 100% of the value of his or her Vested Account Balance in a lump sum, the non-vested portion will be treated as a forfeiture. The Participant (and his or her Spouse, if required) must consent to any distribution when the Vested Account Balance described above exceeds $5,000.

(e) A Participant whose Vested Account Balance is greater than $5,000 shall have the option to postpone payment of his or her Plan benefits until his or her Required Beginning Date. If elected in the Adoption Agreement, any balance in a Participant's account resulting from his or her Employee contributions listed at paragraph 5.1(b), not previously withdrawn, may be withdrawn by the Participant immediately following separation from Service.

(f) Unless elected otherwise in the Adoption Agreement, if a Participant’s Vested Account Balance is $1,000 or less, after the Participant’s termination of employment, the distributions shall be in a lump sum and any non-vested amounts shall be immediately forfeited. Such distribution shall be paid to the Participant as soon as practicable after complying with the Federal tax withholding rules without the need for spousal consent. Terminated Participants receiving an involuntary distribution of $200 or more must be notified of their right to have such amounts directly rolled over to an IRA or Qualified Plan of their choosing.

If elected in the Adoption Agreement, when a terminating Participant or Employee does not make a timely election with respect to the cash-out distribution of amounts greater than $1,000 but less than or equal to $5,000, [pursuant to Code Sections 411(a)(7), 411(a)(11) and 417(e)(7)], the Plan Administrator shall make a Direct Rollover into an individual retirement account or annuity (“IRA”). The Plan Administrator will select the IRA trustee or custodian, establish the IRA, and make the initial IRA investment selection.

If elected in the Adoption Agreement, when the Participant does not elect to have such distribution paid directly to an Eligible Retirement Plan, as specified by the Participant, or does not elect to receive the distribution directly, the Plan Administrator shall pay the distribution in a Direct Rollover to an individual retirement plan that is designated by the Plan Administrator and is communicated to the Plan Participant. The extent to which Rollover Contributions will be included or excluded in determining the value of the Participant’s Vested Account Balance for purposes of the Plan’s involuntary cash-out rules will be governed by the election made in the Adoption Agreement. Rollover Contributions will always be considered in determining if the $1,000 automatic rollover threshold has been exceeded.

If elected in the Adoption Agreement, the value of a Participant’s nonforfeitable account balance shall be determined without regard to that portion of the account balance that is attributable to Rollover Contributions (and the earnings allocable thereto) within the meaning of Code Sections 402(c), 403(a)(4), 403(b)(8), 408(d)(3)(A)(ii) and 457(e)(16). If the value of the Participant‘s nonforfeitable account balance as so determined is $5,000 or less, the Plan shall immediately distribute the Participant’s entire nonforfeitable account balance, subject to this paragraph. Eligible Rollover Distributions from a Participant's Xxxx Elective Deferral Account are taken into consideration in determining whether the total amount of the Participant’s account balances under the Plan exceeds the $1,000 threshold for purposes of mandatory distributions from the Plan.

(g) If elected by the Employer in the Adoption Agreement, this paragraph shall apply for distributions and severances from employment occurring after the dates specified in the Adoption Agreement.

A Participant’s Elective Deferrals, Xxxx Elective Deferrals, Qualified Non-Elective Contributions, Qualified Matching Contributions, and earnings attributable to these contributions shall be distributed on account of the Participant’s severance from employment. However, such a distribution shall be subject to the other provisions of the Plan regarding distributions, other than provisions that require a separation from Service before such amounts may be distributed.

(h) A Direct Rollover of a distribution from a Xxxx Elective Deferral Account under this Plan will be made to another Xxxx Elective Deferral Account under an applicable retirement plan described in Code Section 402A(e)(1) or to a Xxxx XXX described in Code Section 408A, and only to the extent the rollover is permitted under Code Section 402(c).

The Plan shall not provide for a Direct Rollover (including an automatic rollover) of distributions from a Participant's Xxxx Elective Deferral Account if the amount of the distributions that are Eligible Rollover Distributions are reasonably expected to total less than $200 during a year. In addition, any distribution from a Participant's Xxxx Elective Deferral Account are not taken into consideration in determining whether distributions from a Participant's other accounts are reasonably expected to total less than $200 during a year.

(i) If the Plan permits partial distributions, a Participant shall be permitted to designate all or any portion of such distribution to be from the Xxxx Elective Deferral Account. This provision does not apply to a return of Excess Contribution or a distribution of Excess Elective Deferrals.

6.6 Restrictions On Immediate Distributions

(a) An account balance is immediately distributable if any part of the account balance could be distributed to the Participant (or Surviving Spouse) before the Participant attains (or would have attained if not deceased) the later of the Normal Retirement Age or age sixty-two (62).

(b) If payment in the form of a Qualified Joint and Survivor Annuity is required and the value of a Participant's Vested Account Balance exceeds $5,000, or there are remaining payments to be made with respect to a particular distribution option that previously commenced, and the account balance is immediately distributable, the Participant and his or her Spouse (or where either the Participant or the Spouse has died, the survivor) must consent to any distribution of such account balance.

(c) If payment in the form of a Qualified Joint and Survivor Annuity is not required with respect to a Participant and the value of a Participant’s Vested Account Balance exceeds $5,000, and the account balance is immediately distributable, only the Participant must consent to any distribution of such account balance.

(d) The consent of the Participant and/or the Spouse shall be obtained in writing or in such other form accepted by the Plan Administrator within the ninety (90) day period ending on the Annuity Starting Date, which is the first day of the first period for which an amount is paid as an annuity or in any other form. The Plan Administrator shall notify the Participant and the Participant's Spouse of the right to defer any distribution until the Participant's account balance is no longer immediately distributable. Such notification shall include a general description of the material features, and an explanation of the relative values of, the optional forms of benefit available under the Plan in a manner that would satisfy the notice requirements of Code Section 417(a)(3), and shall be provided no less than thirty (30) days and no more than ninety (90) days prior to the Annuity Starting Date.

(e) If the distribution is one to which Code Sections 401(a)(11) and 417 do not apply, such distribution may commence less than thirty (30) days after the notice required under Regulations Section 1.411(a)-11(c) is given provided that:

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

(2) the Participant after receiving the notice affirmatively elects a distribution.

If a distribution is one to which Code Section 417 does apply, the distribution may commence less than thirty (30) days, but not less than seven (7) days after the notice required under Regulations Section 1.411(a)-11(c) is given, provided that the conditions of sub-paragraphs (1) and (2) above are satisfied with regard to both the Participant and the Participant’s Spouse.

(f) Notwithstanding the foregoing, only the consent of the Participant to the commencement of a distribution in the form of a Qualified Joint and Survivor Annuity is required while the account balance is immediately distributable. Furthermore, if payment in the form of a Qualified Joint and Survivor Annuity is not required with respect to the Participant pursuant to paragraph 8.7 of the Plan, only the Participant must consent to the distribution of an account balance that is immediately distributable. Neither the consent of the Participant nor the Participant’s Spouse shall be required to the extent that a distribution is required to satisfy Code Section 401(a)(9) or Code Section 415 or constitutes Excess Deferrals, Excess Contributions or Excess Aggregate Contributions. In addition, upon termination of this Plan if the Plan does not offer an annuity option (purchased from a commercial provider), the Participant’s account balance may, without the Participant’s consent, be distributed to the Participant or transferred to another Defined Contribution Plan [other than an employee stock ownership plan as defined in Code Section 4975(e)(7)] within the same controlled group.

(g) For purposes of determining the applicability of the foregoing consent requirements to distributions made before the first day of the first Plan Year beginning after December 31, 1988, the Participant’s Vested Account Balance shall not include amounts attributable to accumulated deductible employee contributions within the meaning of Code Section 72(o)(5)(B).

(h) Any Plan established hereunder which is making distributions to any former Employee, Participant or surviving Spouse may charge reasonable Plan administrative expenses to the account of that former Employee, Participant or surviving Spouse, but only if the administrative expenses are apportioned on a pro-rata basis, i.e., the expenses are based on the amount in each account of a former Employer, Participant or surviving Spouse receiving benefits from the Plan, (or another reasonable basis that complies with the requirements of Title I of ERISA). However, the allocation of Plan expenses still must meet the nondiscrimination rules of Code Section 401(a)(4).

6.7 Normal And Optional Forms Of Payment

(a) The normal form of payment for a profit sharing, 401(k) or SIMPLE 401(k) plan shall be designated in the Adoption Agreement. If no election is made in the Adoption Agreement, the Plan will default to the normal form of benefit being a lump sum, and the safe harbor provisions of paragraph 8.7 shall apply.

(b) A Plan other than a money purchase pension plan, a target benefit plan or a profit-sharing plan required to provide a Joint and Survivor benefit may be amended to eliminate or restrict optional payment forms provided that a single lump sum payment option remains available. The remaining lump sum must have the same (or less restrictive) timing of distribution, medium of distribution and eligibility conditions that were available for the eliminated forms of payment, and any such amendment will not be effective until the date that Plan Participants are provided with the written notice of the Plan amendment in the form of a summary of material modification (SMM).

Each optional form of benefit provided under a Prototype Plan (other than any that have been prospectively eliminated) must be currently available to all Employees benefiting under the Plan. This is the case regardless of whether a particular form of benefit is the actuarial equivalent of any other optional form of benefit under the Plan. Code Section 411(d)(6) prevents a Plan from being amended to eliminate or restrict optional forms of benefits and any other Code Section 411(d)(6) protected benefits with respect to benefits attributable to Service before the amendments except as expressly provided under the Regulations Section 1.411(d)-4.

(c) For money purchase and target benefit plans, the normal form of payment hereunder shall be a Qualified Joint and Survivor Annuity as provided under Article VIII. Effective January 1, 2002, the Employer may elect in the Adoption Agreement to eliminate any periodic payment options that are not required by the Qualified Joint and Survivor Annuity rules such as but not limited to installment payments.

(d) The normal form of payment shall be automatic, unless the Participant files a written request with the Employer prior to the date on which the benefit is automatically payable, electing another option available under the Plan.

(e) As elected in the Adoption Agreement, a Participant shall (with the consent of his or her Spouse, if applicable) have the right to receive his or her benefit in a single lump sum or in installment payments. Installment payments need not be equal or substantially equal until such time as the individual reaches his or her Required Beginning Date. Installment payments which are intended to be equal or substantially equal can be made monthly, quarterly, semi-annually or annually based on any period not extending beyond the joint and survivor life expectancy of the Participant and his or her Beneficiary.

(f) Benefits payable under the Plan may be distributed in cash or in-kind as elected in the Adoption Agreement. The Employer may also elect on the Adoption Agreement to limit a Participant’s right to receive distributions in the form of marketable securities (other than Employer securities) and to require distributions in the form of cash only. Only the right to receive a distribution in the form of cash, Employer securities and/or other property that is not marketable is protected. Any such amendment to the Plan will not be effective until the date that Plan Participants are provided with the written notice of the Plan amendment in the form of a summary of material modification (SMM).

(g) A Plan that permits its Participants to receive in-kind distributions may limit the available in-kind distributions to the investments listed in the Adoption Agreement and only to the extent the investments are held in the Participant’s account at the time of the distribution. A Plan may be amended to limit the investments that may be distributed in-kind. The amendment must include all investments (other than marketable securities for which cash may be substituted) that are held in a Participant’s account at the time of the amendment and for which the Plan, prior to such amendment, allowed for distribution of those investments in kind. The right to an in-kind distribution for investments held at the time of the distribution would only have to be protected to the extent such investment was in the Participant’s account at the time the amendment was adopted or effective, if later.

(h) Promissory notes of Participants may be distributed in-kind pursuant to the Employer’s loan policy document.

(i) Distribution of benefits payable in the form of installments shall be paid in cash.

(j) The Plan Administrator shall have the sole responsibility to determine the propriety, amount, and form of any distribution made under the terms of this Plan and such determination will be final. Upon such determination, the Plan Administrator shall direct the Trustee and/or Custodian in writing or by any such other means as expressly agreed upon, to make such a distribution.

6.8 Distribution In Event Of Incapacity

If any person who is entitled to receive a distribution of benefits (the “Payee”) suffers from a Disability or is under a legal incapacity, payments may be made in one or more of the following ways as directed by the Plan Administrator:

(a) to the Payee directly; or

(b) to the guardian or legal representative of the Payee’s person or estate.

The Plan Administrator’s determination of the minority or incapacity of any Payee will be final.

6.9 Commencement Of Benefits

(a) Unless the Participant elects otherwise, distribution of benefits will begin no later than the sixtieth day after the close of the Plan Year in which the latest of the following events occurs:

(1) the Participant attains age sixty-five (65) (or Normal Retirement Age if earlier),

(2) the tenth anniversary of the year in which the Participant commenced participation in the Plan, or

(3) the Participant terminates Service with the Employer.

(b) Notwithstanding the foregoing, the failure of a Participant and Spouse (if necessary) to consent to a distribution while a benefit is immediately distributable within the meaning of paragraph 6.6 hereof, shall be deemed an election to defer commencement of payment of any benefit sufficient to satisfy this paragraph.

6.10 In-Service Withdrawals

If elected in the Adoption Agreement, an Employer may elect to permit a Participant in the Plan to make an in-service withdrawal, subject to any limitation(s) specified in the Adoption Agreement.

(a) Unless indicated otherwise on the Adoption Agreement, a Participant may withdraw all or any part of the fair market value of his or her Voluntary or Required After-tax Contributions as described in Article IV, other than Elective Deferrals or Xxxx Elective Deferrals, upon request to the Plan Administrator. No amount of the Employer’s Contribution will be forfeited solely as a result of a Participant’s withdrawal of an amount pursuant to this paragraph 6.10. Unless indicated otherwise in the Adoption Agreement, Rollover and Transfer Contributions, and the income allocable to each, may be withdrawn at any time.

(b) Subject to Article VIII, Joint and Survivor Annuity Requirements (if applicable) and pursuant to the Employer’s election in the Adoption Agreement, a Participant may be eligible to withdraw any part of his or her Qualified Voluntary Contribution account by making application to the Plan Administrator. A request to withdraw amounts pursuant to this paragraph must be consented to by the Participant’s Spouse, unless the Plan satisfies the safe harbor under paragraph 8.7 hereof. Spousal consent, if required, shall comply with the requirements of paragraph 6.6 relating to immediate distributions.

(c) A Participant may withdraw all or any part of the fair market value of his or her pre-1987 Voluntary Contributions with or without withdrawing the earnings attributable thereto. Post-1986 Voluntary Contributions may only be withdrawn along with a portion of the earnings thereon. The amount of the earnings to be withdrawn is determined by using the formula: DA [1-(V ÷ V+E)], where DA is the distribution amount, V is the amount of Voluntary Contributions and V+E is the amount of Voluntary Contributions plus the earnings attributable thereto. The aggregate value of the Participant’s Vested Account Balance derived from Employer and Employee contributions (including Rollovers), whether vested before or upon death, includes the proceeds of insurance contracts, if any, on the Participant’s life. The provisions of this Article shall apply to a Participant who is vested in amounts attributable to Employer contributions, Employee contributions (or both) at the time of death or distribution.

(d) Under a Profit Sharing Plan and to the extent that the Employer elects in the Adoption Agreement, the Participant is required to satisfy at least one of the following conditions to make an in-service withdrawal of all or any part of the Participant’s vested Non-Safe Harbor Matching Contributions and Non-Elective Contributions.

(1) An Employee who has been a Participant in the Plan for at least five (5) years may, prior to separating from Service with the Employer, elect to withdraw all or any part of the vested Non-Safe Harbor Matching Contributions and Non-Elective contributions.

(2) Vested Non-Safe Harbor Matching and Non-Elective Contributions which have been in the Plan for at least two (2) years may be withdrawn.

(3) A Participant who has attained age 59½ may, prior to separation from Service, elect to withdraw all or any part of their vested Non-Safe Harbor Matching Contributions and discretionary contributions.

(4) A Participant may also be required to be 100% vested before a withdrawal can be made for any of the reasons above.

(5) The Employer may require any or all of these conditions to be satisfied prior to an in-service distribution being made from the Plan.

(e) Unless otherwise elected by the Employer in the Adoption Agreement, Elective Deferrals, Xxxx Elective Deferrals, Qualified Non-Elective Contributions, Safe Harbor Matching and Non-Elective Contributions, and Qualified Matching Contributions, and income allocable to each, are not distributable to a Participant earlier than upon severance of employment (separation from Service for Plan Years beginning before 2002), death, or Disability. Such amounts may also be distributed upon:

(1) termination of the Plan without the establishment of another Defined Contribution Plan other than an employee stock ownership plan [as defined in Code Section 4975(e)(7)] or a Simplified Employee Pension Plan [as defined in Code Section 408(k)], or a SIMPLE IRA plan [as defined in Code

ARTICLE X		69

LIMITATIONS ON ALLOCATIONS		69

10.1	Maximum Annual Additions	69
10.2	Participation In This Plan Only	69
10.3	Disposition Of Excess Annual Additions	69
10.4	Participation In Multiple Defined Contribution Plans	70
10.5	Disposition Of Excess Annual Additions Under Two Plans	70
10.6	Participation In This Plan And A Defined Benefit Plan Prior To January 1, 2000	71

ARTICLE XI		72

NONDISCRIMINATION TESTING		72

11.1	General Testing Requirements	72
11.2	ADP Testing Limitations	72
11.3	Special Rules Relating To Application Of The ADP Test	72
11.4	ACP Testing Limitations	73
11.5	Special Rules Relating To The Application Of The ACP Test	74
11.6	Recharacterization	75
11.7	Calculation And Distribution Of Excess Contributions And Excess Aggregate Contributions	75
11.8	Distribution Of Excess Elective Deferrals	76
11.9	Distribution Of Excess Contributions	76
11.10	Distribution Of Excess Aggregate Contributions	77
11.11	Qualified Non-Elective And/Or Matching Contributions	78
11.12	Nondiscrimination Tests In A SIMPLE 401(k) Plan	79
11.13	Safe Harbor 401(k) Plan Rules Of Application	80
11.14	Safe Harbor 401(k) Plan Definitions	80
11.15	Required Restrictions On Safe Harbor 401(k) Contributions	81
11.16	ADP Test Safe Harbor	82
11.17	ACP Test Safe Harbor	82
11.18	Safe Harbor 401(k) Status	83
11.19	Safe Harbor 401(k) Notice Requirement	83
11.20	Satisfying Safe Harbor 401(k) Contribution Requirements Under Another Defined Contribution Plan	84

ARTICLE XII		86

ADMINISTRATION		86

12.1	Plan Administrator	86
12.2	Persons Serving As Plan Administrator	86
12.3	Action By Employer	87
12.4	Responsibilities Of The Parties	87
12.5	Promulgating Notices And Procedures	87
12.6	Appointment Of Investment Manager	87
12.7	Participant Investment Direction	88
12.8	Application Of ERISA Section 404(c)	89
12.9	Participant Loans	89
12.10	Insurance Policies	91
12.11	Determination Of Qualified Domestic Relations Order (QDRO Or Order)	92
12.12	Receipt And Release For Payments	93
12.13	Resignation And Removal	93
12.14	Claims And Claims Review Procedure	93
12.15	Bonding	94

ARTICLE XIII		95

TRUST PROVISIONS		95

13.1	Establishment Of The Trust	95
13.2	Control Of Plan Assets	95
13.3	Discretionary Trustee	95
13.4	Nondiscretionary Trustee	95
13.5	Provisions Relating To Individual Trustees	95
13.6	Investment Instructions	96
13.7	Fiduciary Standards	96
13.8	Powers Of The Trustee	96
13.9	Appointment Of Additional Trustee And Allocation Of Responsibilities	98
13.10	Compensation, Administrative Fees And Expenses	99
13.11	Records	99

13.12	Limitation On Liability And Indemnification	100
13.13	Responsibilities Of A Named Custodian	101
13.14	Investment Alternatives Of The Custodian	102
13.15	Prohibited Transactions	102
13.16	Exclusive Benefit Rules	102
13.17	Assignment And Alienation Of Benefits	102
13.18	Liquidation Of Assets	102
13.19	Resignation And Removal Of The Trustee and/or Custodian	103

ARTICLE XIV		104

TOP-HEAVY PROVISIONS		104

14.1	Applicability Of Rules	104
14.2	Determination Of Top-Heavy Status	104
14.3	Minimum Contribution	105
14.4	Minimum Vesting	106
14.5	Limitations On Allocations	106
14.6	Use Of Safe Harbor Contributions To Satisfy Top-Heavy Contribution Rules	106
14.7	Top-Heavy Rules For SIMPLE 401(k) Plans	106

ARTICLE XV		107

AMENDMENT AND TERMINATION		107

15.1	Amendment By Sponsor	107
15.2	Amendment By Employer	107
15.3	Protected Benefits	107
15.4	Permitted Plan Amendments Affecting Alternative Forms Of Payment	107
15.5	Plan Termination	108
15.6	Involuntary Termination	108
15.7	Termination Of Participation By Participating Employer	108
15.8	Distribution Restrictions Under A Code Section 401(k) Plan	108
15.9	Qualification Of Employer's Plan	109
15.10	Mergers And Consolidations	111
15.11	Qualification Of Prototype	111

ARTICLE XVI		112

GOVERNING LAW		112

16.1	Governing Law	112
16.2	State Community Property Laws	112

ARTICLE XVII		113

RESERVED		113

ARTICLE XVII		114

DEEMED IRAS		114

17.1	Deemed IRAs	114
17.2	Individual	114
17.3	Investment In Collectibles	114
17.4	Restrictions On Directing Investments	114
17.5	Prohibition Against Investing In Life Insurance	114
17.6	Commingling Of Assets	114
17.7	Nonforfeitability	114
17.8	Separate Accounting	114
17.9	Separate Trusts	114
17.10	Separate Annuities	115
17.11	Reporting Duties	115
17.12	Distributions	115
17.13	Voluntary Employee Contributions	115
17.14	Substitution Of Non-Bank Trustee	115
17.15	Disqualification	115

ARTICLE XVIII		116

RESERVED		116

ARTICLE XVIII		117

DEEMED TRADITIONAL INDIVIDUAL RETIREMENT ACCOUNT PROVISIONS		117

18.1	Deemed IRA	117
18.2	Maximum Annual Contribution	117
18.3	Catch-Up Contribution	117
18.4	Required Beginning Date	117
18.5	Tax Year	117
18.6	Trustee	117
18.7	Traditional IRA Contributions	117
18.8	Excess Contributions	118
18.9	Maintenance Of An Individual’s IRA	118
18.10	Methods Of Payment	118
18.11	Requirements Of Income Tax Regulations	118
18.12	Required Beginning Date	118
18.13	Forms Of Distributions	118
18.14	Distributions Upon Death	118
18.15	Designated Beneficiary	119
18.16	Remainder Beneficiary	119
18.17	Distribution Calendar Year	119
18.18	Life Expectancy	119
18.19	Individual’s Account Balance	120
18.20	Duties Of The Trustee	120
18.21	Duties Of The Individual	120

ARTICLE XIX		121

RESERVED		121

ARTICLE XIX		122

DEEMED XXXX INDIVIDUAL RETIREMENT ACCOUNT PROVISIONS		122

19.1	Deemed Xxxx XXX	122
19.3	Age Requirements	122
19.4	Plan Year	122
19.5	Timing Of Contributions	122
19.6	Adjusted Gross Income (AGI)	122
19.7	Modified AGI	122
19.8	Applicable Dollar Amount	122
19.9	Maximum Permissible Amount	122
19.10	Xxxx XXX Contributions	123
19.11	Excess Contribution	124
19.12	Qualified Distributions	124
19.13	Qualified Special Purpose Distribution	124
19.14	Nonqualified Distributions	124
19.15	Form Of Payment	124
19.16	Rollover From A Qualified Retirement Plan	124
19.17	Life Expectancy	124
19.18	Distributions Commencing Prior To Death	125
19.19	Distributions After Death	125
19.20	Ordering Rules Upon Death Of Individual	125
19.21	Minimum Payment	125
19.22	Duties Of Trustee	125
19.23	Duties Of Individual	126

Document Metadata

Table of Contents

PROTOTYPE DEFINED CONTRIBUTION PLAN Sponsored By SBERA BASIC PLAN DOCUMENT #01

ARTICLE I		1

DEFINITIONS		1

1.1	Actual Contribution Percentage (ACP)	1
1.2	Actual Deferral Percentage (ADP)	1
1.3	Adoption Agreement	2
1.4	Aggregate Limit	2
1.5	Allocation Date(s)	2
1.6	Annual Additions	2
1.7	Annuity Starting Date	3
1.8	Applicable Calendar Year	3
1.9	Applicable Life Expectancy	3
1.10	Average Annual Compensation	3
1.11	Average Contribution Percentage (ACP)	3
1.12	Average Deferral Percentage (ADP)	3
1.13	Beneficiary	3
1.14	Break In Service	3
1.15	Catch-Up Contributions	4
1.16	Code	4
1.17	Compensation	4
1.18	Custodian	7
1.19	Xxxxx-Xxxxx Act	7
1.20	Days of Service	7
1.21	Defined Benefit Plan	8
1.22	Defined Benefit (Plan) Fraction	8
1.23	Defined Contribution Dollar Limitation	8
1.24	Defined Contribution Plan	8
1.25	Defined Contribution (Plan) Fraction	8
1.26	Designated Beneficiary	8
1.27	Direct Rollover	8
1.28	Disability	9
1.29	Distribution Calendar Year (Valuation Calendar Year)	9
1.30	Early Retirement Age	9
1.31	Early Retirement Date	9
1.32	Earned Income	9
1.33	Effective Date	9
1.34	Elapsed Time	9
1.35	Election Period	10
1.36	Elective Deferrals	10
1.37	Eligible Employee	10
1.38	Eligible Employer	10
1.39	Eligible Participant	11
1.40	Eligible Retirement Plan	11
1.41	Eligible Rollover Distribution	11
1.42	Employee	12
1.43	Employer	12
1.44	Entry Date	12
1.45	ERISA	12
1.46	Excess Aggregate Contributions	12
1.47	Excess Annual Additions	12
1.48	Excess Contributions	13
1.49	Excess Elective Deferrals	13
1.50	Expected Year Of Service	13
1.51	Fiduciary	13
1.52	First Distribution Calendar Year	13
1.53	Former Participant	13
1.54	Hardship	13
1.55	Highest Average Compensation	13
1.56	Highly Compensated Employee	14
1.57	Hour Of Service	14

1.58	Integration Level	15
1.59	Key Employee	15
1.60	Leased Employee	15
1.61	Life Expectancy	15
1.62	Limitation Year	15
1.63	Master Or Prototype Plan	16
1.64	Matching Contribution	16
1.65	Maximum Permissible Amount	16
1.66	Named Investment Fiduciary	16
1.67	Net Profit	16
1.68	Normal Retirement Age	16
1.69	Normal Retirement Date	16
1.70	Owner-Employee	16
1.71	Participant	16
1.72	Participant’s Account Balance	16
1.73	Participant's Benefit	17
1.74	Period Of Severance	17
1.75	Permissive Aggregation Group	17
1.76	Plan	17
1.77	Plan Administrator	17
1.78	Plan Sponsor	17
1.79	Plan Year	17
1.80	Predecessor Organization	17
1.81	Present Value	17
1.82	Prior Plan Year	17
1.83	Projected Annual Benefit	18
1.84	Qualified Domestic Relations Order (QDRO)	18
1.85	Qualified Early Retirement Age	18
1.86	Qualified Joint And Survivor Xxxxxxx (QJSA)	18
1.87	Qualified Matching Contributions (QMACs)	18
1.88	Qualified Non-Elective Contributions (QNECs)	18
1.89	Qualified Plan	18
1.90	Qualified Pre-Retirement Survivor Annuity	18
1.91	Qualified Voluntary Contribution	19
1.92	Required After-tax Contributions	19
1.93	Required Aggregation Group	19
1.94	Required Beginning Date	19
1.95	Rollover Contribution	19
1.96	Xxxx Elective Deferrals	20
1.97	Salary Deferral Agreement	20
1.98	Savings Incentive Match Plan For Employees (SIMPLE)	20
1.99	Self-Employed Individual	20
1.100	Service	20
1.101	Service Provider	21
1.102	Severance Date	21
1.103	Severance Period	21
1.104	Shareholder Employee	21
1.105	Simplified Employee Pension Plan	21
1.106	Sponsor	21
1.107	Spouse (Surviving Spouse)	21
1.108	Super Top-Heavy Plan	21
1.109	Taxable Wage Base	21
1.110	Top-Heavy Determination Date	21
1.111	Top-Heavy Plan	21
1.112	Top-Heavy Ratio	22
1.113	Top-Paid Group	22
1.114	Transfer Contribution	23
1.115	Trust	23
1.116	Trustee	23
1.117	Uniformed Services Employment And Reemployment Rights Act Of 1994 (USERRA)	23
1.118	Valuation Date	23
1.119	Vested Account Balance	23
1.120	Voluntary After-tax Contribution	23
1.121	Welfare Benefit Fund	23
1.122	Year Of Service	23

ARTICLE II		26

ELIGIBILITY REQUIREMENTS		26

2.1	Eligibility	26
2.2	Determination Of Eligibility	26
2.3	Change In Classification Of Employment	26
2.4	Participation	27
2.5	Employment Rights	27
2.6	Service With Controlled Groups	27
2.7	Leased Employees	27
2.8	Thrift Plan	27
2.9	Target Benefit Plan	28
2.10	Xxxxx-Xxxxx Plan	28
2.11	Waiver Of Participation	28
2.12	Omission Of Eligible Employee	28
2.13	Inclusion Of Ineligible Employee	28
2.14	Participating Employer	28

ARTICLE III		30

EMPLOYER CONTRIBUTIONS		30

3.1	Contribution Amount	30
3.2	Overall Permitted Disparity Limits	31
3.3	Contribution Amount For A SIMPLE 401(k) Plan	31
3.4	Responsibility For Contributions	32
3.5	Return Of Contributions	32
3.6	Merger Of Assets From Another Plan	32
3.7	Coverage Requirements	32
3.8	Eligibility For Contribution	33
3.9	Cross-Tested Allocation Formula	33
3.10	Target Benefit Plan Contribution	35
3.11	Xxxxx-Xxxxx Plan Contribution	35
3.12	Uniform Dollar Contribution	35
3.13	Uniform Points Contribution	35
3.14	403(b) Matching Contribution	35

ARTICLE IV		36

EMPLOYEE CONTRIBUTIONS		36

4.1	Voluntary After-tax Contributions	36
4.2	Required After-tax Contributions	36
4.3	Qualified Voluntary Contributions	36
4.4	Rollover Contributions	36
4.5	Voluntary Direct Transfers Between Plans	37
4.6	Elective Deferrals In A 401(k) Plan	38
4.7	Catch-Up Contributions	39
4.8	Elective Deferrals In A SIMPLE 401(k) Plan	39
4.9	Xxxx Elective Deferrals In A 401(k) Plan	40
4.10	Automatic Enrollment	41
4.11	RESERVED	42
4.12	Make-Up Contributions Under USERRA	42

ARTICLE V		43

PARTICIPANT ACCOUNTS		43

5.1	Separate Accounts	43
5.2	Valuation Date	43
5.3	Allocations To Participant Accounts	44
5.4	Allocating Employer Contributions	44
5.5	Allocating Investment Earnings And Losses	44
5.6	Allocation Adjustments	45
5.7	Participant Statements	45
5.8	Changes In Method And Timing Of Valuing Participants’ Accounts	45

ARTICLE VI		46

RETIREMENT BENEFITS AND DISTRIBUTIONS		46

6.1	Normal Retirement Benefits	46
6.2	Early Retirement Benefits	46
6.3	Benefit Upon Death	46
6.4	Benefit Upon Disability	46
6.5	Benefits On Termination Of Employment	46
6.6	Restrictions On Immediate Distributions	48
6.7	Normal And Optional Forms Of Payment	49
6.8	Distribution In Event Of Incapacity	49
6.9	Commencement Of Benefits	50
6.10	In-Service Withdrawals	50
6.11	Hardship Withdrawals	52
6.12	Direct Rollovers	54
6.13	Participant’s Notice	56
6.14	Assets Transferred From Money Purchase Pension Plans	56
6.15	Assets Transferred From A Code Section 401(k) Plan	56

ARTICLE VII		57

DISTRIBUTION REQUIREMENTS		57

7.1	Joint And Survivor Annuity Requirements	57
7.2	Designation Of Beneficiary	57
7.3	Minimum Distribution Requirements	57
7.4	Limits On Distribution Periods	58
7.5	Required Beginning Date	58
7.6	Death Of Participant Before Distributions Begin	58
7.7	Forms Of Distributions	58
7.8	Amount Of Required Minimum Distribution For Each Distribution Calendar Year	58
7.9	Lifetime Required Minimum Distributions Continue Through Year Of Participant’s Death	59
7.10	Death On Or After Required Distributions Begin	59
7.11	Death Before Date Required Distributions Begin	59
7.12	Prior Pre-Retirement Distribution Options	59
7.13	Transitional Rules	60
7.14	Distributions To Minors And Individuals Who Are Legally Incompetent	61
7.15	Unclaimed Benefits	61

ARTICLE VIII		62

JOINT AND SURVIVOR ANNUITY REQUIREMENTS		62

8.1	Applicability Of Provisions	62
8.2	Payment Of Qualified Joint And Survivor Annuity	62
8.3	Payment Of Qualified Pre-Retirement Survivor Annuity	62
8.4	Qualified Election	62
8.5	Notice Requirements For Qualified Joint And Survivor Annuity	62
8.6	Notice Requirements For Qualified Pre-Retirement Survivor Annuity	63
8.7	Special Safe Harbor Exception For Certain Profit-Sharing Or 401(k) Plans	63
8.8	Transitional Rule	64
8.9	Automatic Joint And Survivor Annuity And Early Survivor Annuity	65
8.10	Annuity Contracts	65

ARTICLE IX		66

VESTING		66

9.1	Employee Contributions	66
9.2	Employer Contributions	66
9.3	Vesting Of Employer Contributions In A SIMPLE 401(k) Plan	66
9.4	Computation Period	66
9.5	Requalification Prior To Five Consecutive One-Year Breaks In Service	66
9.6	Requalification After Five Consecutive One-Year Breaks In Service	66
9.7	Calculating Vested Interest	67
9.8	Forfeitures	67
9.9	Amendment Of Vesting Schedule	67
9.10	Service With Controlled Groups	68
9.11	Compliance With Uniformed Services Employment And Reemployment Rights Act Of 1994	68