FX ENERGY, INC. 401(k) STOCK BONUS PLAN RESTATED EFFECTIVE JANUARY 1, 2002 Prepared for FX ENERGY, INC. by CALLISTER NEBEKER & McCULLOUGH ARTICLE I ESTABLISHMENT AND RESTATEMENT

FX ENERGY, INC.

401(k) STOCK BONUS PLAN

RESTATED EFFECTIVE JANUARY 1, 2002

Prepared for

FX ENERGY, INC.

by

CALLISTER NEBEKER & McCULLOUGH

 

ARTICLE I  ESTABLISHMENT AND RESTATEMENT

 

1.01Establishment: This Plan is an amendment and restatement of the FX Energy, Inc. 401(k) Profit Sharing Plan (“Prior Plan”) and is signed and executed on the day set forth at the end of this Plan, effective for all purposes (except as specifically set forth hereafter) as of January 1, 2002. This Plan is established and maintained by FX Energy, Inc., a corporation organized and existing under the laws of Nevada, with its principal offices located at Salt Lake City, Utah, hereinafter referred to as the “Plan Sponsor.” With the consent of FX Energy, Inc., this Plan may be adopted by other Employers affiliated with FX Energy, Inc.

 

1.02         History: Effective as of January 1, 1999, FX Energy, Inc. established the FX Energy, Inc. 401(k) Profit Sharing Plan (“Original Plan”) and executed as part of the Original Plan a Trust Agreement to provide retirement benefits for eligible Employees of FX Energy, Inc. and its affiliated companies. The Original Plan was subsequently restated and amended effective January 1, 2004, to comply with all requirements of the legislation known collectively as “GUST” and to include amendments to reflect certain provisions of the Economic Growth and Tax Relief Reconciliation Act of 2001 (“EGTRRA”) (the “GUST Plan”).

 

1.03         Intent: FX Energy, Inc. intends by this Plan to amend, restate and supersede the GUST Plan for the benefit of its Employees and those Employees of its affiliated companies who shall meet the eligibility requirements hereinafter set forth and for the benefit of the beneficiaries of such Employees, respectively, as hereinafter provided. FX Energy, Inc., also intends that this Plan shall permit FX Energy, Inc. to make contributions of Employer Securities and shall permit Participants to invest in additional shares of Employer Securities. FX Energy, Inc. further intends that this Plan shall meet all the requirements of the Internal Revenue Code of 1986 (“Code”) and the Employee Retirement Income Security Act of 1974 (“ERISA”). In addition to the 401(k) provisions herein, FX Energy, Inc., intends that this Plan be a stock bonus plan and hold Employer Securities as contributed. The Plan shall be interpreted, wherever possible, to comply with the terms of the Code and ERISA and all formal regulations and rulings issued thereunder.

 

1.04         EGTRRA Provisions: This Plan incorporates certain provisions intended to comply in good faith with of the Economic Growth and Tax Relief Reconciliation Act of 2001 (“EGTRRA”). These provisions are to be construed in accordance with EGTRRA and guidance issued thereunder. Unless otherwise indicated provisions included in this Plan in compliance with EGTRRA shall be effective as of the first day of the first plan year beginning after December 31, 2001. Provisions included in this Plan that conform to EGTRRA shall supersede all other provisions of the Plan to the extent those provisions are inconsistent therewith.

 

1.05         Limitation on Applicability: The provisions of this Plan shall apply only to persons who are or who become Participants in this Plan on or after the Effective Date. Except as specifically provided in this Plan, the provisions of the Prior Plan will continue to apply to persons who are former Employees on the Effective Date, unless and until such time as such persons may again become Participants in this Plan.

 

ARTICLE II  DEFINITIONS OF TERMS

 

As used in this Plan and Trust Agreement, the following words and phrases shall have the meanings indicated, unless the context clearly requires another meaning.

 

2.01         “Account” shall mean the Account established and maintained by the Plan Administrator for a Participant with respect to any interest in the Investment Fund. Each Participant’s Account shall be credited or charged with contributions, distributions, earnings and losses as provided herein. The following separate sub-accounts shall be established for each Participant, as applicable, and in the aggregate they shall constitute the Participant’s Account:

 

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Certain sub-accounts may include or incorporate assets from other sub-accounts. The maintenance of separate sub-accounts is for accounting purposes only and segregation of the assets of the Plan shall not be required.

 

2.02         “Accrued Benefit” shall mean, as of any date, the sum of the values in each of a Participant’s Accounts as of the most recent preceding Valuation Date, plus any contributions to and minus any distributions from the Accounts since the Valuation Date, plus the cash surrender value of all Insurance Contracts and allocated annuity contracts purchased for a Participant.

 

2.03         “Administratively Feasible” shall mean, when determining the date by which a Participant may receive a distribution of his or her Accrued Benefit from the Plan, a date that reasonably follows the final determination by the Plan Administrator of all factors that affect the value or amount of the balance in the Participant’s Account. Such factors shall include the valuation of the assets attributable to the Account and the determination of all costs and expenses associated with the Account and the assets attributable thereto that must be paid prior to or in connection with the distribution. The Plan Administrator shall not make any distribution prior to the time the Plan Administrator shall have determined, within its sole and reasonable discretion, that a correct and complete valuation of the Account has been accomplished and that all attributable costs and expenses have been determined and applied, or in the alternative, provision for their application has been made. In regard to providing for application of costs and expenses, whenever any attributable cost or expense has not or cannot be determined within a reasonable time following a request for distribution, the Plan Administrator may establish a reasonable maximum percentage that can be distributed from the Participant’s Account until such time as the Plan Administrator has determined (and applied, as appropriate) all additional costs applicable to the Participant’s Account. If so elected by the Participant, he or she shall receive distribution of that percentage portion of his or her Account that the Plan Administrator has confirmed as distributable. The remainder shall be distributed once the Plan Administrator has determined and applied all additional costs deductible from the Participant’s Account. The Plan Administrator shall provide any required notice to the Participant and comply with all applicable laws and regulations when determining and setting the maximum distribution percentage.

 

With respect to any distribution to a Participant that the Plan may or would be entitled to offset by application of ERISA §206(d)(4), no such distribution shall be Administratively Feasible prior to the date on which a final order or judgment is entered or could be entered, or a settlement agreement is executed, with respect to the circumstances giving rise to the possible application of that Section.

 

2.04         “Administrator” or “Plan Administrator” shall mean the person, persons, or corporation administering this Plan, as provided in Article XIII hereof, and any successor or successors thereto.

 

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                2.05        “Affiliated Group” shall mean a group of corporations, trades or businesses that constitute a controlled group of corporations, trades or businesses as defined in Code §§414(b) and (c) and shall also include a group of corporations, partnerships or other organizations that constitute an affiliated service group as defined in Code §414(m) or is treated as a single employer under Code §414(o) and the regulations thereunder.

 

 

 

2.08         “Beneficiary” shall mean any person, persons, or trust designated by a Participant on a form as the Plan Administrator may prescribe to receive any death benefit that may be payable hereunder if such person or persons survive the Participant. This designation may be revoked at any time in similar manner and form. In the event of the death of the designated Beneficiary prior to the death of the Participant, the Contingent Beneficiary shall be entitled to receive any death benefit.

 

 

 

 

 

2.11         “Compensation” or “Annual Compensation” shall mean the amount of all base salary payments and wages for personal services rendered that is paid to an Employee during the Plan Year by an FX Employer, including overtime pay, commissions, bonuses and lump sum severance payments, unless such amounts are specifically excluded from consideration as Compensation under an employment agreement between the Employee and the FX Employer. Compensation shall be determined before deductions for federal income taxes, state income taxes and Social Security (FICA) taxes, before deductions for contributions by salary reduction to this Plan or any other plan that meets the requirements of Code §§401(k) or 125 and are sponsored by an FX Employer, before deductions for Participant contributions to any insurance program sponsored by an FX Employer and before deferral pursuant to any written contract of deferred compensation between the Participant and an FX Employer. Compensation shall not include director’s fees, allowances or reimbursements for expenses, relocation payments, merchandise and service discounts, the value of insurance coverage, automobile or mileage allowances, parking or public transportation payments not includable in gross income by reason of Code §132(f)(4), amounts realized from the exercise of a non-qualified stock option, or when restricted stock (or property) held by a Participant either becomes freely transferable or is no longer subject to a substantial risk of forfeiture, amounts realized from the sale, exchange, or other disposition of stock acquired under a qualified stock option, benefits in the form of property or the use of property, or other fringe benefits and amounts deferred pursuant to a written contract of deferred compensation between the Participant and an FX Employer. Unless specifically included by this Section, payments or contributions to or for the benefit of a Participant under any deferred compensation plan, pension, profit sharing, group life or health insurance, hospitalization or other employee benefit plan or any payments from such a plan and any amounts paid at or after Termination of Employment (on account of such termination), such as installment severance payments, vacation and sick leave cash-outs, shall not be included in Compensation. For purposes of a contribution or an allocation under the Plan based on compensation, Annual Compensation shall only include amounts actually paid an Employee during the period the Employee is a Participant in the Plan.

 

Effective for Plan Years commencing on and after January 1, 2002, Annual Compensation of each Participant taken into account in determining allocations for any Plan Year shall not exceed Two Hundred Thousand Dollars ($200,000), as adjusted for cost-of-living increases in accordance with Code §401(a)(17)(B). The cost-of-living adjustment in effect for a calendar year applies to Annual Compensation for the Plan Year that begins with or within such calendar year. Prior to January 1, 2002, the Participant’s Annual Compensation taken into account for any Plan Year shall not exceed One Hundred Fifty Thousand Dollars ($150,000), or such greater or lesser amount, adjusted as provided in Code §401(a)(17)(B). Aggregation of family members’ compensation shall not be required or allowed when determining Annual Compensation.

 

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2.12         “Contingent Beneficiary” shall mean the person, persons, or trust duly designated by the Participant to receive any death benefit from the Plan in the event the designated Beneficiary does not survive the Participant.

 

2.13         “Disability” shall mean a mental or physical disease or condition that can be expected to result in death or that can be expected to last for a continuous period of at least six (6) months. In making this determination, the Administrator may employ a doctor who is licensed and qualified to practice medicine in any State to examine the Participant and then issue an opinion as to the disability of the Participant involved. Notwithstanding the foregoing, a Participant who is eligible to receive Social Security disability payments shall be deemed to be disabled without further proof.

 

2.14         “Distribution Date” shall mean the first day of the first month for which an amount is payable, or the date on which a benefit is actually paid or begins to be paid.

 

2.15         “Effective Date” shall mean generally January 1, 2002, or such alternate date with respect to any provision as may be specified herein. All provisions of this Plan as restated and amended shall be effective as of that date except to the extent this Plan provides for an alternate date. The original effective date of the Prior Plan was January 1, 1999. The Plan was restated for GUST effective January 1, 2004. This document replaces and supersedes the GUST Plan retroactive to January 1, 2002.

 

2.16         “Elective Deferral” shall mean a contribution to the Plan under a cash or deferred arrangement as defined in Code §401(k) to the extent not includable in gross income, which is made pursuant to an election and authorization by a Participant through a Salary Reduction Agreement consistent with the provisions of Section 5.01.

 

 

2.18         “Employee” shall mean any person who is employed by an FX Employer in any capacity other than solely as a director.

 

2.19         “Employer” or “FX Employer” shall mean the Plan Sponsor and any other entity who, with the authorization of the Plan Sponsor, may adopt this Plan. Solely for purposes of determining Eligibility Service, Years of Vesting Service and One Year Breaks in Service, any entity not adopting this Plan that, together with the Plan Sponsor, is a member of an Affiliated Group shall also be treated as an Employer for the period of time during which such entity was a member of such group. FX Employers may, at the option of the Plan Sponsor, be identified by a list attached as an addendum to this Plan, or through separate participation agreements, that reflect adoption by the FX Employer of this Plan.

 

2.20         “Employer Contribution” shall mean any contribution made to this Plan on behalf of an Employee by the Employer. For purposes of the investment provisions in Section 18.07 Elective Deferrals shall not be considered to be Employer Contributions, regardless of any other characterization of such Deferrals under the Plan or the Code.

 

2.21         “Employer Securities” shall mean common stock issued by the Employer (or by a corporation that is a member of an Affiliated Group of which the Employer is a member) that is readily tradeable on an established securities market. If there is no stock that meets this requirement, then “Employer Securities” shall mean common stock issued by the Employer (or by a corporation that is a member of an Affiliated Group of which the Employer is a member) having a combination of voting power and dividend rights equal to or in excess of --

 

 

 

Noncallable preferred stock shall be deemed “Employer Securities” if it is convertible at any time into stock that constitutes “Employer Securities” hereunder and if the conversion is at a price that is reasonable on its date of acquisition by the Trust.

 

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2.22         “Entry Date” shall mean, solely for purposes of participation under Article IV, the date an Employee became or becomes a Participant in the Plan. Entry Dates occur on each January 1, April 1, July 1 and October 1.

 

 

2.24         “Excluded Employee” shall mean a member of that class of Employees who are not eligible to participate in the Plan or accrue any benefit under the Plan, regardless of employment status or the number of hours worked by the Employee. The class of such Employees includes:

 

 

 

 

 

 

It is expressly intended that an individual identified or determined by the Employer to be in one of the above classifications shall be ineligible to participate in the Plan without regard to whether a court, administrative agency or other fact-finder subsequently determines that the individual was not or is not in fact in that classification.

 

 

2.25         “Fiduciary” shall mean and include the Trustee, Plan Administrator, Plan Sponsor, Investment Manager, and any other person or corporation who:

 

 

 

 

 

2.26         “Highly Compensated Employee” or “HCE” shall mean an Employee, other than a non-resident alien receiving no earned income from the Employer from sources within the United States, who:

 

 

 

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“Look-back Year” means the Plan Year immediately preceding the Plan Year for which the determination is being made. An Employee is in the “Top Paid Group” if the Employee is in the group consisting of the top twenty percent (20%) of Employees when ranked on the basis of Compensation paid during the Look Back Year. When calculating the number of Employees in the Top Paid Group the following Employees shall be excluded: (i) Employees who have not completed 6 months of service; (ii) Employees who normally work less than 17½ hours per week; (iii) Employees who normally work not more than six months during any year; (iv) Employees who have not attained Age 21; and (v) Employees who are Excluded Employees by reason of Section 2.24(a). The Ninety Thousand Dollar ($90,000) amount in (b) above shall be adjusted for cost of living as provided under Code §415(d), except that the base period shall be the calendar quarter ending September 30, 1996.

 

A former Employee who was a Highly Compensated Employee upon Termination of Employment or at any time after attaining Age fifty-five (55) shall be treated as a Highly Compensated Employee. No family aggregation rules shall apply when determining who is a Highly Compensated Employee and no Employee who is a family member of any Highly Compensated Employee shall be required or considered to be a single Employee with the Highly Compensated Employee. For purposes of this Section Compensation is defined as in Section 7.01(b) of this Plan, but shall include contributions made by the Employer to a plan of deferred compensation otherwise excluded in Section 7.01(b).

 

2.27         “Inactive Participant” shall mean an individual who retains and is entitled to receive a distribution of an Accrued Benefit from the Plan, but who is not currently eligible to make Elective Deferral Contributions or receive an allocation of Employer Contributions or forfeitures, without regard to whether the individual has incurred a Termination of Employment.

 

 

 

 

 

 

2.30         “K-Test Average Contribution Percentage” shall mean the average (expressed as a percentage) of the K-Test Contribution Percentages of the Participants in a group.

 

2.31         “K-Test Contribution Percentage” shall mean the ratio (expressed as a percentage) of a Participant’s K-Test Contributions for a Plan Year to the Participant’s Compensation for the Plan Year. The K-Test Contribution Percentage for a Participant who is a Highly Compensated Employee shall be determined by combining all cash or deferred arrangements under which the Highly Compensated Employee is eligible to participate (other than those that may not be permissively aggregated) with this Plan as though they were a single arrangement. The K-Test Contribution Percentage for a Participant who has made no Elective Deferral contributions and who is not credited with any K-Test Contributions for the Plan Year shall be zero (0).

 

2.32         “K-Test Contributions” shall mean, for any Plan Year, a Participant’s Elective Deferrals, plus, if so elected by the Employer, part or all of the Qualified Non-Elective Contributions and Qualified Matching Contributions allocated to the Participant for such year, provided that, any Qualified Non-Elective Contributions included as K-Test Contributions shall not increase the difference between the K-Test Average Contribution Percentage for Highly Compensated Employees and the K-Test Average Contribution Percentage for Non-Highly Compensated Employees; and, further provided that, no Qualified Non-Elective Contributions or Qualified Matching Contributions included as K-Test Contributions shall be included as M-Test Contributions. In determining the amount of a Participant’s Elective Deferrals under this Section the Plan Administrator shall take into account elective deferrals made by the Participant under any other plan that is aggregated with this Plan for purposes of Code §401(a)(4) or Code §410(b) (other than Code §410(b)(2)(A)(ii)) and any other plan satisfying Code §401(k)(3) and Reg. §1.401(k)-1(b)(3) that the Employer elects to permissively aggregate with this Plan, by treating all such plans and this Plan as a single plan.

 

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2.33         “Leased Employee” shall mean any person who, pursuant to an agreement between the FX Employer and any other person or organization (leasing organization), performs services for the Employer (or for the FX Employer and related persons determined in accordance with Code §414(n)(6)), and the services are performed under the primary direction or control of the FX Employer.

 

Contributions or benefits provided by the leasing organization that are attributable to services performed for the Employer shall be treated as provided by the Employer. If the Leased Employees constitute not more than twenty percent (20%) of the FX Employer’s non-highly compensated work force, the preceding sentence shall not apply to any Leased Employee who is covered by a money purchase pension plan providing:

 

 

 

 

2.34         “Limitation Year” shall mean the Plan Year, unless the Employer elects a different twelve (12) month period.

 

2.35         “M-Test Average Contribution Percentage” shall mean the average (expressed as a percentage) of the M-Test Contribution Percentages of the Participants in a group.

 

2.36         “M-Test Contribution Percentage” shall mean the ratio (expressed as a percentage) of a Participant’s M-Test Contributions for a Plan Year to the Participant’s Compensation for the Plan Year. The M-Test Contribution Percentage for a Participant who is a Highly Compensated Employee shall be determined by combining all plans subject to Code §401(m) under which the Highly Compensated Employee is eligible to participate (other than those that may not be permissively aggregated) with this Plan as though they were a single plan. For this purpose, Compensation is defined as in Section 7.01(b) of the Plan. The M-Test Contribution Percentage for a Participant who has made no Elective Deferral contributions and who is not credited with any M-Test Contributions for the Plan Year shall be zero (0).

 

2.37         “M-Test Contributions” shall mean for any Plan Year Matching Contributions made pursuant to Section 5.05 less any of the Participant’s Qualified Matching Contributions included as K-Test Contributions. If so elected by the Employer, part or all of the Qualified Non-Elective Contributions allocated to the Participant for such year shall be included as an M-Test Contribution, provided that, any Qualified Non-Elective Contributions included as M-Test Contributions shall not increase the difference between the M-Test Average Contribution Percentage for Highly Compensated Employees and the M-Test Average Contribution Percentage for Non-Highly Compensated Employees; and, further provided that, no Qualified Non-Elective Contributions included as M-Test Contributions shall be included as K-Test Contributions. In determining the amount of M-Test Contributions under this Section the Plan Administrator shall take into account all employee contributions made by the Participant and all matching contributions made by the Employer under any other plan that is aggregated with this Plan for purposes of Code §401(a)(4) or Code §410(b) (other than Code §410(b)(2)(A)(ii)) and any other plan satisfying Code §401(k)(3) and Reg. §1.401(k)-1(b)(3) that the Employer elects to permissively aggregate with this Plan, by treating all such plans and this Plan as a single plan.

 

2.38         “Matching Contribution” shall mean any Employer contribution made to the Plan on behalf of an Employee on account of an Employee’s Elective Deferral, but excluding, for Plan Years beginning after December 31, 1988, any contribution used to meet the minimum required allocation under Section 19.03. For Plan Years commencing after December 31, 2001, Matching Contributions may be used to satisfy the minimum required contribution requirements of Section 19.03 to the extent provided in Section 19.09.

 

2.39         “Named Fiduciary” shall mean the Plan Administrator and any Committee appointed and so designated by the Plan Administrator.

 

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2.40         “Net Profit” for any year shall mean the current and accumulated earnings of the Employer as reflected by its books of account for the particular fiscal year prior to the provision for Federal and state income tax, without increase or decrease due to corrections or adjustments subsequently made, but excluding the cost of contributions made under this Plan or any other qualified plan.

 

2.41         “Non-Highly Compensated Employee” or “NHCE” shall mean an Employee who is not a Highly Compensated Employee.

 

 

2.43         “Normal Retirement Date” shall mean the first day of the calendar month coinciding with or next following a Participant’s Normal Retirement Age.

 

2.44         “Participant” shall mean any Eligible Employee who has satisfied all of the age and service requirements of Section 4.01. Such an Eligible Employee shall be deemed to be a Participant in the Plan for purposes of any applicable non-discrimination test, including the K-Test and M-Test defined in this Plan, without regard to whether he has executed a Salary Reduction Agreement and agreed to have contributions made to this Plan through Elective Deferrals. A Participant may nevertheless be considered “active” or “inactive” depending on whether he is eligible to make Elective Deferral Contributions or receive an allocation of Employer Contributions. A Participant who has an Account in the Plan but is an Inactive Participant because he or she has incurred a Termination of Employment shall not be treated as a Participant in the Plan for purposes of any applicable non-discrimination test, including the K-Test and M-Test defined in this Plan in any Plan Year following the Plan Year in which the Participant’s Termination of Employment has occurred.

 

2.45         “Plan” shall mean the Plan as stated herein and as may be amended from time to time, denominated as the “FX Energy, Inc. 401(k) Stock Bonus Plan.” The Employer intends the Plan to satisfy the requirements of Code Section 401(k) and to include provisions permitting the contribution of Employer Securities.

 

 

 

2.48         “Predecessor Plan” shall mean any Plan that has been previously amended or restated for GUST and whose assets have been transferred to this Plan pursuant to a merger or trust to trust transfer. The benefits that are funded by the transferred assets shall be protected benefits within the meaning of Code §411(d)(6) and the regulations thereunder and prior to their transfer to this Plan shall be subject to all provisions of the Predecessor Plan, including any transitional rules required by prior legislation such as GUST and applicable IRS regulations.

 

 

2.50         “Qualified Matching Contribution” shall mean a Matching Contribution with respect to which the requirements of Reg. §1.401(k)-1(b)(5) and Code §§401(k)(2)(B) and (C) are met.

 

2.51         “Qualified Non-Elective Contribution” shall mean any Employer contribution to the Plan other than a Matching Contribution with respect to which the Employee may not elect to have the contribution paid to the Employee in cash instead of being contributed to the Plan and (if treated as K-test Contributions) the requirements of Reg. §1.401(k)-1(b)(5) and Code §§401(k)(2)(B) and (C) are met or (if treated as M-Test Contributions) the requirements of Reg. §1.401(m)-1(b)(5) are met.

 

2.52         “Transferred Benefits” shall mean those benefits funded by assets transferred to the Plan from a Predecessor Plan. Transferred Benefits shall include all optional forms of benefits available under the Predecessor Plan(s) from which the Transferred Benefits were received, unless unavailable under this Plan.

 

2.53         “Trust” shall mean the Trust created under the Prior Plan, designated as the FX Energy, Inc. 401(k) Profit Sharing Plan Trust, and continued through the restated and amended Trust Agreement, effective January 1, 2004, and renamed the FX Energy, Inc. 401(k) Stock Bonus Plan Trust.

 

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2.54         “Trust Fund” shall mean all cash, Employer Securities, securities, annuity contracts, Insurance Contracts, real estate and any other property held by the Trustee pursuant to the terms of this Agreement, together with investment earnings or losses thereon, less any applicable expenses of the Plan and Trust.

 

2.55         “Trustee” shall mean the bank, trust company or other corporation possessing trust powers under applicable State or Federal law, or one or more individuals, or any combination thereof named as parties hereto, or any successor Trustee or Trustees hereunder.

 

2.56         “Valuation Date” shall mean the date on which the Trust Fund and Accounts are valued, as provided in this Plan. The following shall be Valuation Dates:

 

 

 

2.57         “Vested Interest” or “Vested Accrued Benefit” shall mean the portion of a Participant’s Accrued Benefit that is non-forfeitable.

 

ARTICLE III  SERVICE DEFINITIONS AND RULES

 

3.01         “Eligibility Computation Period” shall mean the period used to measure Eligibility Service and Breaks in Service for purposes of eligibility to begin and maintain participation in the Plan.

 

 

 

 

3.02         “Eligibility Service” shall mean service for any period during which an Employee receives credit for Hours of Service for an FX Employer.

 

3.03         “Employment Commencement Date” shall mean the date on which the Employee first performs an Hour of Service for an FX Employer.

 

 

 

 

 

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For purposes of this paragraph (b), a payment shall be deemed to be made by or due from an Employer regardless of whether such payment is made by or due from the Employer directly, or indirectly through, among others, a trust fund or insurer to which Employer contributes or pays premiums and regardless of whether contributions made or due to the trust fund, insurer or other entity are for the benefit of particular Employees or are on behalf of a group of Employees in the aggregate. Hours under this paragraph (b) shall be calculated and credited pursuant to DOL Reg. §2530.200b-2, paragraphs (b) and (c), which are incorporated herein by this reference.

 

 

 

 

 

 

 

 

Hours of Service shall include the Hours of Service that otherwise would normally have been credited to such Employee but for such absence; or in any case in which the Plan is unable to determine the Hours of Service to be credited, eight (8) Hours of Service for each regularly scheduled work day of such absence. The total number of hours treated as Hours of Service under this Section by reason of any pregnancy or placement shall not exceed five hundred one (501) hours less the number of Hours of Service credited to an Employee pursuant to subsections (a) through (e) above, for an absence described in this subsection (f). The hours described in this subsection (f) shall be treated as Hours of Service only in the computation period in which the absence from work begins, if an Employee would be prevented from incurring a One-Year Break in Service in such computation period solely because the period of absence is treated as Hours of Service as provided herein; or in any other case, in the immediately following computation period. Notwithstanding the foregoing, no credit will be given pursuant to this subsection (f) unless the Employee furnishes to the Plan Administrator such timely information as the Plan Administrator may reasonably require to establish that the absence from work is for reasons referred to herein, and the number of days for which there was such an absence.

 

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3.05         “One Year Break in Service” shall mean a twelve (12) consecutive month period during which an Employee has not completed more than five hundred (500) Hours of Service, regardless of whether the Employee has incurred a Termination of Employment. For purposes of vesting, such twelve (12) consecutive month periods shall be measured on the same basis as Years of Vesting Service. For purposes of eligibility to participate, the Plan shall not apply any break in service rule. The following types of absence shall not constitute a One-Year Break in Service:

 

 

 

 

3.06         “Re-employment Commencement Date” shall mean the date on which an Employee, who has both incurred a Termination of Employment from the Employer and has had a One Year Break in Service as a result of that termination, first performs an Hour of Service for the Employer following such Break in Service.

 

3.07         “Termination of Employment” with respect to any Employee or Participant shall occur upon the separation from service (effective January 1, 2002, severance from employment) of the Employee or Participant due to resignation, discharge, death, retirement, failure to return to active work at the end of an authorized leave of absence or the authorized extension(s) thereof, failure to return to active work when duly called following a temporary layoff, or upon the happening of any other event or circumstance which, under the then current policy of the FX Employer, results in the termination of the employer-employee relationship. Termination of Employment shall not be deemed to occur merely because of a transfer between FX Employers.

 

3.08         “Vesting Computation Period” shall mean the twelve (12) consecutive month period used to measure Years of Vesting Service and Breaks in Service for purposes of vesting. The twelve (12) consecutive month period used for the Vesting Computation Period shall be the Plan Year.

 

3.09         “Year of Service” shall mean a twelve (12) consecutive month period during which an Employee has completed at least one thousand (1000) Hours of Service.

 

3.10         “Year of Eligibility Service” shall mean an Eligibility Computation Period during which an Employee has completed at least one thousand (1000) Hours of Service.

 

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3.11         “Year of Vesting Service” shall mean a Vesting Computation Period during which an Employee has completed at least one thousand (1000) Hours of Service. A Participant’s Years of Vesting Service shall be determined based on all Vesting Computation Periods containing or beginning after his/her Employment Commencement Date or Re-employment Commencement Date.

 

3.12         Special Rules for Crediting Service: In crediting Service under the Plan for any Employee who is or was employed by a Participating Employer the rules for crediting Service as set forth in each respective Participation Agreement shall apply.

 

3.13         Qualified Military Service Rules: The following rules shall apply to an Employee who has Qualified Military Service while employed by an FX Employer.

 

 

 

 

 

 

 

 

 

 

 

 

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ARTICLE IV  ELIGIBILITY AND PARTICIPATION

 

4.01         Age and Service Requirements: An Eligible Employee shall become a Participant in this Plan on the first Entry Date coincident with or next following the date on which he satisfies all of the following requirements:

 

 

 

 

An Eligible Employee who becomes a Participant and who also executes a written Salary Reduction Agreement in the manner set forth in procedures issued by the Plan Administrator shall be considered to be an active Participant. An Eligible Employee shall not be required to execute a Salary Reduction Agreement in order to become an active Participant in the Plan, however, as a condition to participation in Salary Reduction Contributions the Eligible Employee shall first execute a written Salary Reduction Agreement in the manner set forth in procedures issued by the Plan Administrator. An Employee who was a Participant in the Prior Plan on the day before the Effective Date shall continue as a Participant in this Plan on that date.

 

4.02         Plan Administrator to Furnish Eligibility Information: As soon as practicable after each Employee’s Employment Commencement Date, the Plan Administrator shall determine the Entry Date when the Employee shall first become eligible to participate in the Plan and shall notify each Employee of his/her eligibility, and of any application or other requirements for participation.

 

4.03         Information to be Provided by Employee: At the request of the Plan Administrator, each Eligible Employee shall furnish such information as is not available from the Employer. As a condition to participation in the Plan, the Employee shall first complete, execute and deliver a written Salary Reduction Agreement as reasonably required by the Plan Administrator.

 

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4.04         Reclassification of an Eligible Employee or Excluded Employee: Any Eligible Employee, whether or not he has previously participated in the Plan, who was previously classified as an Excluded Employee and is reclassified as an Eligible Employee shall be eligible to enter the Plan as an active Participant on the later of the date of his/her reclassification or the Entry Date he would otherwise join if he had not been classified as an Excluded Employee, provided he has otherwise satisfied the requirements of Section 4.01.

 

Any Participant who is reclassified as an Excluded Employee during the Plan Year shall immediately cease Elective Deferrals to the Plan and shall no longer be eligible for Employer Contributions as of the date the reclassification occurs.

 

4.05         Re-employment and Commencement of Participation: An Eligible Employee who had met the requirements of Section 4.01(a), (b) or (c) but terminated employment prior to his/her Entry Date shall become a Participant on the date he is re-employed by the Employer, but in no event earlier than the Entry Date he would have joined had he not ceased employment. An Employee who was a Participant shall again become a Participant on the date he is re-employed by the Employer. The Employee who becomes a Participant may immediately elect to execute a Salary Reduction Agreement and commence Elective Deferrals, if it is executed within the time period specified by the Plan Administrator pursuant to a uniform and non-discriminatory policy. If not so executed, the Participant may elect to execute a Salary Reduction Agreement and commence Elective Deferrals as of the first day of any subsequent calendar quarter thereafter.

 

4.06         Election Not To Participate: At any time after the Plan Administrator notifies an Employee of his eligibility to participate in this Plan, the eligible Employee may elect not to become an active Participant by not executing a Salary Reduction Agreement or by indicating on the enrollment form his election not to participate. The electing Employee may later become an active Participant effective as of any subsequent Entry Date, if the Employee then meets the requirements for participation under this Article IV and properly executes a Salary Reduction Agreement.

 

4.07         Effect of Participation: A Participant who has executed a Salary Reduction Agreement shall be conclusively deemed to have assented to this Plan and to any subsequent amendments, and shall be bound thereby with the same force and effect as if he had formally executed this Plan.

 

ARTICLE V  PARTICIPANT AND EMPLOYER CONTRIBUTIONS

 

 

 

 

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5.02         Payment to Trustee: The Employer shall transmit to the Trustee the amounts withheld by it pursuant to Section 5.01 above as soon as Administratively Feasible, but in no event later than the fifteenth (15th) business day of the month following the month in which the amounts are withheld or received by the Employer. However, the Employer shall not transmit to the Trustee any amounts withheld by it during the Plan Year pursuant to a deferral election under Section 5.01 that, in the Plan Administrator’s opinion, would cause the Plan to fail to meet the limitations described in Section 5.10 for that Plan Year. Such amounts withheld and not transmitted to the Trustee shall be returned by the Employer to the respective Participants.

 

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5.03         Suspension of Deferrals: A Participant may notify the Plan Administrator electronically, orally or in writing of his/her intention to suspend his/her election to have a portion of his/her Annual Compensation deferred. The suspension shall be effective for the payroll period commencing thirty (30) days after the date the notice of suspension is received (unless an earlier effective date is Administratively Feasible) and for each payroll period thereafter, until a new Salary Reduction Agreement is entered into by the Participant. The Participant shall be considered a Participant hereunder for all other purposes if his/her employment continues, however, he shall not be considered to be an active Participant.

 

5.04         No Voluntary Contributions by Participants: A Participant shall not be required nor permitted to make voluntary after-tax contributions to the Plan.

 

5.05         Rollover Contributions by Participants: A Participant (or an Employee who is expected to become a Participant) may rollover directly to this Plan (or indirectly through an individual retirement account, annuity or bond) the cash or cash proceeds from the sale of property distributed to the Employee in the form of an “eligible rollover distribution” as that term is defined in Section 11.03(a)) from another plan qualified under Code §401(a). For this purpose this Plan shall be an “eligible retirement plan” as that term is defined in Section 11.03(b). The amount shall be credited to his Participant Rollover Contribution Account, provided:

 

 

 

 

The Plan will accept participant rollover contributions and/or direct rollovers of distributions made after December 31, 2001, from any qualified plan described in Code §401(a) or Code §403(a), an annuity contract described in Code §403(b) or an eligible plan under Code §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. The plan will also accept a participant rollover contribution of the portion of a distribution from an individual retirement account or annuity described in Code §408(a) or (b) that is eligible to be rolled over and would otherwise be includable in gross income. The Plan will accept rollovers from other plans described in this paragraph that also include after-tax employee contributions, provided that the after tax contributions are received in a direct rollover as described in Code §401(a)(31)(A).

 

5.06         Employer Matching Contributions: For each Plan Year the Employer may contribute Employer Securities to the Plan in an amount, determined without regard to Net Profits, that will be sufficient to credit the Employer Matching Contribution Account of each Participant who satisfies the requirements of Section 6.04, with amounts that satisfy the Employer’s Matching Contribution percentage as determined by the Employer on a discretionary basis for the Plan Year. The amount of Employer Securities to be contributed as an Employer Matching Contribution and the manner of allocation shall be determined annually by the Employer no later than the time prescribed by law (including any extensions thereof) for filing the Employer’s Federal income tax return for the Plan Year for which the Matching Contribution is made. If more than one FX Employer participates in this Plan, then each FX Employer may set its own Matching Contribution level or formula to be applicable to its own Employees, without regard to that determined by other sponsoring FX Employers. The Matching Contribution shall be made in the form of cash or Employer Securities only. If the contribution is in the form of cash, the Plan Administrator, in its discretion, may direct the Trustee to apply the cash immediately toward the purchase of Employer Securities. The Employer Matching Contribution for Employees of the Sponsoring Employer and each Participating FX Employer shall be determined each Plan Year by the Sponsoring Employer and each Participating FX Employer respectively, or shall be as set forth in the Supplemental Participation Agreement executed by the Participating FX Employer. The allocation of the Employer Matching Contribution amount shall be determined solely by reference to the ratio percentage of the Participant’s Elective Deferral compared to the aggregate of the forms of the Participant’s Compensation that are subject to the Salary Reduction Agreement as specified in Section 5.01(a)(1). If the Employer or Participating FX Employer makes a Matching Contribution to the Plan at any time during the Plan Year (such as on a calendar quarter basis), any limit on the amount of Employer Matching

 

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Contribution shall not be determined by reference to Annual Compensation for the Plan Year, but by reference to Compensation paid only during the period to which the Matching Contribution relates. Notwithstanding the previous sentence, no contribution in excess of the maximum amount that would constitute an allowable deduction for Federal income tax purposes under the applicable provisions of the Code, as now in force or hereafter amended, shall be required to be made by the Employer under this Section. If the Employer makes Matching Contributions for any Plan Year as provided in the first sentence of this paragraph, the Employer may also elect to make an additional Matching Contribution for the Plan Year in an amount that would have been made by the Employer had Matching Contributions been calculated on an annual, rather than periodic, basis. Such additional Matching Contributions must be made by the Employer on a uniform non-discriminatory basis.

 

5.06A       Safe Harbor Employer Matching Contributions: Effective January 1, 2005, and for each Plan Year commencing thereon or thereafter, the Employer may contribute to the Plan an amount, determined without regard to Net Profits, which will be sufficient to credit the Employer Matching Contribution Account of each Participant who is a Non-Highly Compensated Employee and who satisfies the requirements of Section 6.04, with amounts which satisfy the Employer’s Matching Contribution percentage as determined by the Employer on a discretionary basis for the Plan Year. In no event however, shall the Employer Matching Contribution for any Participant who is a Non-Highly Compensated Employee in a Plan Year, when determined as a percentage of the Participant’s Compensation for the Plan Year, ever be less than the percentage amounts shown in the following table:

 

 

The Employer may also contribute to the Plan an amount, determined without regard to Net Profits, which will be sufficient to credit the Employer Matching Contribution Account of each Participant who is a Highly Compensated Employee and who satisfies the requirements of Section 6.04, with amounts which satisfy the Employer’s Matching Contribution percentage as determined by the Employer on a discretionary basis for the Plan Year. In no event however, shall the rate of Matching Contributions with respect to Elective Deferrals made by any Highly Compensated Employee exceed the rate of Matching Contributions with respect to Elective Deferrals made by any Participant who is a Non-Highly Compensated Employee. Excess Matching Contributions for Employees of the Sponsoring Employer or a Participating FX Employer shall be determined each Plan Year by the Sponsoring Employer and each Participating FX Employer respectively, or shall be as set forth in the Supplemental Participation Agreement executed by the Participating FX Employer. If the Employer or Participating FX Employer makes a Matching Contribution in excess of that set forth in the table in this Section, in no event shall the rate of Matching Contributions increase as the rate of the Participant’s Elective Deferrals increase. The Matching Contribution shall be made in the form of cash or Employer Securities only. If the contribution is in the form of cash, the Plan Administrator, in its discretion, may direct the Trustee to apply the cash immediately toward the purchase of Employer Securities.

 

If the Employer or Participating FX Employer makes a Matching Contribution to the Plan at any time during the Plan Year (such as on a calendar quarter basis), any limit on the amount of Employer Matching Contribution shall not be determined by reference to Annual Compensation for the Plan Year, but by reference to Compensation paid only during the period to which the Matching Contribution relates. Notwithstanding the previous sentence, no contribution in excess of the maximum amount which would constitute an allowable deduction for federal income tax purposes under the applicable provisions of the Code, as now in force or hereafter amended, shall be required to be made by the Employer under this Section.

 

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5.07         Employer Profit Sharing Contributions: In addition to (or in lieu of) Employer Matching Contributions made pursuant to Section 5.06 for each Plan Year and effective January 1, 2005, in addition to Employer Safe Harbor Matching Contributions made pursuant to Section 5.06A for each Plan Year, each FX Employer may contribute, without regard to Net Profits, an amount determined by its Board of Directors as an Employer Profit Sharing Contribution. The Employer may make the Profit Sharing Contribution in cash or in kind, provided however, that if the Profit Sharing Contribution is made in cash the Plan shall immediately acquire Employer Securities with the entire amount of the contribution and if the Profit Sharing Contribution is made in kind, it shall be made in the form of Employer Securities only. The Employer Profit Sharing Contribution for the Plan Year shall be allocated as provided in Section 6.02(c) to the Accounts of those Participants who satisfy the requirements of Section 6.04. An Employer may reserve the right to increase or decrease the amount from year to year, as determined by the Board of Directors. Notwithstanding the previous sentence, no contribution in excess of the maximum amount that would constitute an allowable deduction for Federal income tax purposes under the applicable provisions of the Code, as now in force or hereafter amended, shall be required to be made by the Employer under this Section.

 

The amount of the contribution to be credited to the Employer Profit Sharing Contribution Accounts of the Participants shall be in addition to any non-vested forfeitures from Employer Profit-Sharing Contribution Accounts of the Participants to be allocated during the Plan Year pursuant to Section 11.06. The amount of each FX Employer’s Profit Sharing Contribution shall be allocated only to the Accounts of those Participants who are Employees of that FX Employer.

 

5.08         Time and Method of Payment: All payments of Employer Matching and Profit Sharing Contributions shall be made directly to the Trustee and shall be paid no later than the time prescribed by law (including any extensions thereof) for filing the Employer’s Federal income tax return for the Plan Year for which they are made. All such Contributions shall be in the form of Employer Securities only. The Employer may in its sole discretion, at any time during the Plan Year, make one or more partial contributions of Employer Securities to the Trustee on an estimated basis. Any amount so contributed in advance shall be applied against the amount thereafter determined to be contributable by the Employer and shall be credited by the Plan Administrator to the Participants’ Employer Contribution Accounts as of the end of the calendar quarter for which the contribution is made.

 

5.09         Employer Contribution Accounts: The Plan Administrator shall establish and maintain an Employer Matching Contribution Account, as defined in Section 2.01(c) and an Employer Profit Sharing Account as defined in Section 2.01(d) for each Participant eligible to receive an Employer Matching Contribution or Employer Profit Sharing Contribution. Contributions of Employer Securities to a Participant’s Employer Matching Contribution Account and Employer Profit Sharing Contribution Account after the Effective Date shall also be allocated and credited to the Participant’s Employer Securities Account. The establishment of the accounts is for record keeping purposes only, and a physical segregation of assets shall not be required.

 

5.10         Limitations on Contributions: Notwithstanding any other provisions of this Plan, all contributions shall be subject to the following limitations:

 

 

 

 

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For this purpose, the K-Test Average Contribution Percentage and M-Test Average Contribution Percentage for Participants who are Highly Compensated Employees shall be determined after any distributions or re-characterizations pursuant to Section 5.12(a), (b) and (c). The test described in this subsection 5.10(d) shall not apply for Plan Years commencing after December 31, 2001.

 

For purposes of applying the tests in (b), (c) and (d) above in any Plan Year, the K-Test Average Contribution Percentage and the M-Test Average Contribution Percentage for Participants who are Non-Highly Compensated Employees shall be based on the prior Plan Year.

 

The Employer may aggregate this Plan with one or more other plans for purposes of applying the tests in (b), (c) and (d) above, in which case all K-Test Contributions and M-Test Contributions to all such plans shall be treated as made under this Plan, provided that, the aggregated plans may not include an Employee Stock Ownership Plan, and all such aggregated plans must have the same plan year.

 

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                5.11        Excess Contributions: In accordance with the limitations on contributions described in Section 5.10, the following amounts shall be treated as excess contributions under this Plan:

 

 

 

 

 

 

 

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5.12         Correction of Excess Contributions: The Plan provides the following methods for correcting excess contributions as described in Section 5.11:

 

 

 

If the Employer has made a Matching Contribution attributable to any portion of the Participant’s Excess K-Test Contribution distributed to the Participant pursuant to the above, the Plan Administrator shall treat such Matching Contribution as forfeiture. The forfeited amount shall be used to reduce the Employer’s Matching Contribution otherwise required for the Plan Year or for any subsequent Plan Year.

 

 

 

For purposes of the above, income shall include realized and unrealized gains and losses for the Plan Year and for the period from the end of the Plan Year to the date of distribution (the “gap period”) and shall be allocated to excess contributions in accordance with all appropriate Code and Regulation provisions. Distributions of excess contributions pursuant to the above shall be made without regard to any consent by the Participant otherwise required under this Plan.

 

ARTICLE VI  ALLOCATIONS TO ACCOUNTS

 

6.01         Revaluation of Assets: Not less frequently than as of the Annual Valuation Date each year, the Plan Administrator shall re-value the net assets of all Participants’ General Investments Accounts and Employer Securities Accounts in the Investment Fund. The valuation shall determine the current fair market value. At the Plan Administrator’s discretion, applied on a consistent basis, the Plan Administrator may similarly revalue the net assets of the Investment Fund at the end of a semi-annual, quarterly, monthly or more frequent period; the last day of such period shall be referred to as an Interim Valuation Date. The net investment income or loss on the Investment Fund since the previous Annual or Interim Valuation Date shall then be determined. An independent appraiser shall perform all valuations of Employer Securities that are not readily tradeable on an established securities market. The valuation requirement of the immediately preceding sentence applies to all Employer Securities acquired by the Plan.

 

6.02         Allocation of Contributions and Forfeitures: Contributions and forfeitures for any period shall be credited to the Accounts of Participants in the following manner:

 

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6.03         Adjustment of Accounts: As of each Annual or Interim Valuation Date all Participants’ and Inactive Participants’ Accounts shall be adjusted to reflect the contributions and income received, profits and losses, and distributions and expenses of the Trust Fund since the previous Annual or Interim Valuation Date. The adjustments shall be made in the following manner and order:

 

 

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                6.05        Suspension of Accrual Requirements for Employer Profit Sharing Contributions: The Plan suspends the accrual requirements under Section 6.04(b) for Employer Profit Sharing Contributions if for any Plan Year the Plan fails to satisfy the Coverage Test. The Plan satisfies the Coverage Test for the Plan Year if the number of Nonhighly Compensated Employees who benefit under the Plan is at least equal to 70% of the total number of Includible Nonhighly Compensated Employees for the Plan Year. “Includible” Employees are all Employees other than: (1) those Employees excluded from participating in the Plan for the entire Plan Year by reason of the collective bargaining unit exclusion or the nonresident alien exclusion described in the Code or by reason of the age and service requirements of Section 4.01; and (2) any Employee who incurs a Termination of Employment during the Plan Year and fails to complete at least 501 Hours of Service for the Plan Year. A “Nonhighly Compensated Employee” is an Employee who is not a Highly Compensated Employee. For purposes of the Coverage Test an Employee is benefiting under the Plan for a Plan Year if, under Section 6.04, he is entitled to an allocation of Employer Non-Elective Contributions for the Plan Year.

 

If this Section 6.05 applies for a Plan Year, the Plan Administrator will suspend the accrual requirements for the Includible Employees who are Participants, beginning first with the Includible Employee(s) employed with the Employer on the last day of the Plan Year, then the Includible Employee(s) who have the latest Termination of Employment during the Plan Year, and continuing to suspend the accrual requirements for each Includible Employee who incurred an earlier Termination of Employment, from the latest to the earliest date of Termination of Employment, until the Plan satisfies the Coverage Test for the Plan Year. If two or more Includible Employees have a Termination of Employment on the same day, the Plan Administrator will suspend the accrual requirements for all such Includible Employees, irrespective of whether the Plan can satisfy the Coverage Test by accruing benefits for fewer than all such Includible Employees. If the Plan suspends the accrual requirements for an Includible Employee, that Employee will share in the allocation of Employer Contributions and Participant forfeitures, if any, without regard to the number of Hours of Service he has earned for the Plan Year and without regard to whether he is employed by the Employer on the last day of the Plan Year.

 

6.06         New Comparability Formula for Allocation of Employer Profit Sharing Contributions: Subject to the Top Heavy allocation requirements of Article XIX and the Code §415 limitations of Article VII, each Participant’s share of Employer Profit Sharing Contributions

contributed by the Employer under Section 5.07 on behalf of each Allocation Group will be allocated on the last day of the Plan Year (and on such other date or dates as determined by the Plan Administrator on a nondiscriminatory basis) to each Allocation Group. For purposes of this Section 6.06 each Participant who is not an Inactive Participant (an “Eligible Participant”) will constitute a separate Allocation Group. The amount allocated to each Allocation Group will be subject to the following provisions:

 

 

 

 

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6.07         Participant Diversification of Employer Securities Account: This Section shall be effective from and after January 1, 2007. Except as specifically provided in this Section 6.07 and in Section 18.06, the Plan does not permit individual direction of investment by a Participant of the Employer Securities Account.

 

 

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For any Participant who has attained at least age fifty-five (55) and has completed at least three (3) Years of Vesting Service no later than December 31, 2005, the percentage amounts in (C) and (D) above shall be 100%.

 

 

 

ARTICLE VII  LIMITATIONS ON ALLOCATIONS

 

 

 

 

 

 

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Participant Elective Deferrals shall be considered to be Employer contributions. Amounts reapplied to reduce Employer contributions and amounts reapplied from a suspense account (if any) under Section 7.05 as well as contributions allocated to any Individual Medical Benefit Account which is part of a defined benefit plan shall also be included as Annual Additions.

 

For purposes of this Article, an Annual Addition is credited to the Account of a Participant for a particular Limitation Year if it is allocated to the Participant’s Account as of any day within such Limitation Year. Employer contributions will not be deemed credited to a Participant unless the contributions are actually made to the Plan no later than the end of the period described in Code §404(a)(6) applicable to the taxable year with or within which the particular Limitation Year ends.

 

“Annual Additions” do not include any Employer Contributions applied by the Plan Administrator (not later than the due date, including extensions, for filing the Employer’s federal income tax return for the Plan Year) to pay interest (charged to a Participant’s Account) on an Exempt Loan, and any Leveraged Employer Securities the Plan Administrator allocates as forfeitures; provided however, the provisions of this sentence do not apply in a Limitation Year for which the Plan Administrator allocates more than one-third of the Employer Contributions applied to pay principal and interest on an Exempt Loan to Highly Compensated Employee-Participants. The Plan Administrator may reallocate the Employer Contributions in accordance with Section 6.02 to the Accounts of non-Highly Compensated Employee-Participants to the extent necessary in order to satisfy this special limitation.

 

 

 

 

 

 

 

 

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The Limitation Year may be changed by amending the election previously made by the Employer. Any change in the Limitation Year must be a change to a twelve (12) month period commencing with any day within the current Limitation Year. The limitations of this Article (and Code §415) are to be separately applied to a limitation period which begins with the first day of the current Limitation Year and which ends on the day before the first day of the first Limitation Year for which the change is effective.

 

The dollar limitation on Annual Additions with respect to this limitation period is determined by multiplying the applicable dollar limitation for the calendar year in which the limitation period ends by a fraction, the numerator of which is the number of months (computed to the nearest whole month) in the limitation period and the denominator of which is twelve (12).

 

The Limitation Year for all years prior to the effective date of Code §415 shall, as applied to this Plan, be the twelve (12) consecutive month period selected as the Limitation Year for the first Limitation Year after the effective date of Code §415.

 

 

 

 

 

7.03         Order of Limitations: If, pursuant to this Article, it is necessary to limit or reduce the amount of Contributions credited to a Participant under this Plan during a Limitation Year, the limitation or reduction shall be made in the following order:

 

 

 

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7.04         Aggregation of Plans: For purposes of applying the limitations of this Article applicable to a Participant for a particular Limitation Year, all qualified defined benefit plans ever maintained by the Employer shall be treated as one defined benefit plan, all defined contribution plans ever maintained by the Employer shall be treated as one defined contribution plan and any Employee contributions to a defined benefit plan shall be treated as a defined contribution plan.

 

7.05         Suspense Account: If, as a result of a reasonable error in estimating a Participant’s Compensation, determining the allocation of forfeitures or determining the amount of elective deferrals under any cash or deferred arrangement sponsored by an FX Employer for the Limitation Year or under other limited facts and circumstances allowed under Reg. §1.415-6(b), the Annual Additions to this Plan would cause an allocation to the Account of a Participant in excess of the Maximum Permissible Amount for the Limitation Year, the Plan Administrator shall deal with the Excess Amount as follows:

 

 

 

ARTICLE VIII  IN-SERVICE AND HARDSHIP WITHDRAWALS

 

8.01         Withdrawals Due to Attainment of Age 59½, Completion of Service or Hardship: Except as otherwise provided in this Section 8.01 and in Section 8.05, no amounts may be withdrawn by a Participant from any Account held for his/her benefit prior to Termination of Employment with the Employer, unless the Employee has attained his/her Normal Retirement Date.

 

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8.02         Financial Hardship Distribution Rules:Plan adopts the deemed hardship distribution standards set forth in Reg. §1.401(k)-1(d)(2)(iv) (effective January 1, 2006, Reg. §1.401(k)-1(d)(3)(iv)). As a consequence, the Plan Administrator shall not approve any distribution on account of Financial Hardship unless the distribution is determined by the Administrator to be necessary to meet a Participant’s immediate and heavy financial need. The distribution will be deemed necessary if:

 

 

 

The condition in Section 8.02(b) above is deemed to be met if the Participant has obtained all distributions, other than hardship distributions, and all nontaxable loans currently available under all plans maintained by the Employer. If a Participant receives a distribution on account of Financial Hardship during a Plan Year, his or her Elective Deferrals to this Plan and his or her employee contributions to all other plans maintained by the Employer (including qualified and non-qualified plans of deferred compensation and annuities under Code §403(b)) shall be suspended for six months after receipt of the hardship distribution.

 

8.03         Determination of Immediate and Heavy Financial Need: For purposes of Section 8.03, a distribution shall be deemed to be on account of an immediate and heavy financial need if the distribution is for:

 

 

 

 

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Effective January 1, 2006, a distribution shall also be deemed to be on account of an immediate and heavy financial need if the distribution is on account of either of the following additional circumstances:

 

 

 

8.04         Withdrawal of Rollover Contributions: Effective for Plan Years commencing on or after January 1, 2004, in the event a Participant has a Rollover Contribution Account in the Plan, the Participant shall, upon written notice to the Plan Administrator, be entitled to withdraw at any time, subject to the restrictions described below, any amount up to the balance of the Rollover Contribution Account. Withdrawals shall have no effect upon any benefits provided under any other provisions of this Plan. The Plan Administrator and Trustee may establish a reasonable policy regarding the minimum amount that may be withdrawn and the frequency with which withdrawals may be made. The policy shall be in writing and shall be administered in a uniform and non-discriminatory manner.

 

If the Participant’s Accrued Benefit at the time he requests a withdrawal from the Rollover Contribution Account or at any prior time has been greater than $5,000, no such withdrawal may be made prior to the Participant’s Normal Retirement Age unless the Participant first consents in writing. The amount withdrawn shall be distributed to the Participant in the manner and form provided in Section 11.02 as if the amount were distributed on account of the Participant’s Termination of Employment or, if the Participant is eligible for Normal Retirement, in the manner and form provided in Article IX as if the amount were distributed on account of the Participant’s Retirement. If the spousal consent rules of Section 9.06 apply to any amount in the Participant’s Account, then no amount shall be withdrawn unless prior to the withdrawal the Participant’s spouse, if any, consents to each separate withdrawal.

 

ARTICLE IX  RETIREMENT BENEFITS

 

9.01         Normal or Late Retirement: A Participant shall be eligible for Normal Retirement on reaching his/her Normal Retirement Date. A Participant who has not become an Excluded Employee may continue in the service of the Employer as a Participant hereunder beyond his/her Normal Retirement Date. In the event such a Participant continues in the service of the Employer, he shall continue to be treated in all respects as a Participant until his/her actual retirement. When any Participant has a Termination of Employment following his/her Normal Retirement Date he shall be considered a retired Participant and he shall be entitled to receive the entire amount of his/her Accrued Benefit, distributed as set forth below.

 

9.02         Disability Retirement: Upon any Participant incurring a Disability, regardless of whether he is also treated as having a Termination of Employment, he shall be considered a disabled Participant and entitled to begin receiving his/her Accrued Benefit. Such amount shall be distributed as provided in Section 9.03, or deferred until such later date as elected by the disabled Participant and then distributed as provided in Section 9.03.

 

9.03         Method of Payment: Subject to the provisions of Section 9.06 and Article XXII, upon receipt of a claim for benefits a retired or disabled Participant’s Accrued Benefit shall be payable as elected by the Participant, in a single lump sum payment. The amount of the lump sum payment shall be equal to the Participant’s Accrued Benefit on the date payment is made. Payment shall be made in cash only, to the extent the Participant’s Accrued Benefit is attributable to the balance in the Participant’s General Investments Account and in Employer Securities only, to the extent the Participant’s Accrued Benefit is attributable to the balance in the Participant’s Employer Securities Account.

 

Except as provided in Section 9.04, no payment shall be made to a Participant prior to his/her Normal Retirement Age unless the Participant consents in writing to the payment not more than ninety (90) days (effective January 1, 2007, 180 days) prior to his/her Distribution Date.

 

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Not less than thirty (30) days nor more than ninety (90) days (effective January 1, 2007, 180 days) before the Distribution Date, the Plan Administrator shall notify the Participant of the terms, conditions and forms of payment available from the Plan, including a description of the election procedures under this Section and a general explanation of the financial effect on a Participant’s Accrued Benefit of the election. The minimum thirty (30) day waiting period after the notification is provided until the Distribution Date may be disregarded if the Plan Administrator informs the Participant of his/her right to the full minimum thirty (30) day waiting period, and the Participant elects in writing (or by other electronic means acceptable to the Plan Administrator) to waive the minimum thirty (30) day waiting period.

 

If the amount of the Vested Accrued Benefit in the Participant’s Account that would be payable to a disabled or retired Participant in a lump sum is not more than Five Thousand Dollars ($5,000), without regard to whether the Vested Accrued Benefit in the Participant’s Account has ever exceeded that amount at the time of any prior distribution, the benefit shall be paid as a single lump sum payment in cash as soon as Administratively Feasible following the end of the calendar month in which his/her Termination of Employment occurs without regard to any Participant consent requirement or the requirements of Section 9.06. The Accrued Benefit held in the Participant’s Employer Securities Account shall be valued as of the most recent preceding Valuation Date.

 

If the Participant dies prior to the complete distribution of the Participant’s Accrued Benefit to him, then the Plan Administrator, upon notice of the Participant’s death, shall direct the Trustee to make payment in accordance with the provisions of Article X.

 

For all distributions commencing on or after March 28, 2005, the five thousand dollar ($5,000) threshold amount in this Section shall be reduced to one thousand dollars ($1,000).

 

9.04         Time of Payment: Payment of the portion of the retired or disabled Participant’s Accrued Benefit held in his/her General Investments Account shall commence as soon as Administratively Feasible following the end of the calendar month in which a claim for benefits is submitted to the Plan Administrator. Payment of the portion of the Accrued Benefit held in the Participant’s Employer Securities Account shall commence as soon as Administratively Feasible after the next Valuation Date that follows the date the claim for benefits is submitted to the Plan Administrator. A Participant may elect to delay distribution of his/her Accrued Benefit held in his/her General Investments Account until distribution of the amounts in his/her Employer Securities Account. Unless a Participant elects otherwise (and failure to submit a claim for benefits shall be deemed such an election) payment of benefits under this Plan will commence not later than sixty (60) days after the close of the Plan Year in which the latest of the following events occurs:

 

 

 

 

If the amount of the payment required to commence on the date determined above cannot be ascertained by such date, or if it is not possible to make such payment on such date because the Plan Administrator has been unable to locate the Participant after making reasonable efforts to do so, a payment retroactive to such date may be made no later than sixty (60) days after the earliest date on which the amount of such payment can be ascertained or the date the Participant is located, whichever is applicable.

 

9.05         Minimum Distribution Requirements: This Section 9.05 and Section 10.04 shall take precedence over any inconsistent provisions of this Plan. All distributions required to be made under this Section 9.05 (life distributions) or under Section 10.04 (death distributions) will be determined and made in accordance with the Treasury regulations under Code §401(a)(9).

 

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If the Participant fails to elect a form of payment, the Plan shall distribute the Participant’s benefit in annual installments, commencing no later than the Required Beginning Date, with each subsequent installment payment to be made not later than each December 31 thereafter.

 

 

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9.06         Qualified Joint and Survivor Annuity: Effective for all distributions commencing after December 31, 2001, (provided notice has been delivered to all Participants as required in DOL Reg. §2520.104b-3), this Section shall apply only to a Participant or Inactive Participant with respect to whom this Plan holds Transferred Benefits that were directly or indirectly transferred from a defined benefit pension plan, money purchase pension plan, or other qualified plan to which Code §401(a)(11)(B)(iii) applies. Furthermore, this Section shall only apply to that portion of the Participant’s Transferred Benefits attributable to such transfer (the “Annuity Eligible Accrued Benefits”). Prior to January 1, 2004, this Section shall apply as provided in the Prior Plan.

 

 

The Qualified Joint and Survivor Annuity for a Participant or Former Participant who is not married on his/her Distribution Date shall be a life annuity that provides monthly payments for the life of the Participant and terminates with the last payment due prior to his/her death. The annuity shall be purchased from an Insurer in an amount that can be provided by the Participant’s Annuity Eligible Accrued Benefits.

 

 

 

 

 

 

 

 

 

The notification shall also inform the Participant that a specific written explanation in non-technical language of the terms and conditions of the Qualified Joint and Survivor Annuity and the financial effect upon the particular Participant’s benefits of making an election against the Qualified Joint and Survivor Annuity is available upon written request by the Participant. The notification shall be provided not less than thirty (30) days nor more than ninety (90) days before the Distribution Date. If the Participant requests a specific written explanation, the explanation shall be provided within thirty (30) days of the Participant’s request. The Plan Administrator need not comply with more than one such request made by a particular Participant.

 

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During the Joint and Survivor Election Period, as hereinafter defined, a Participant eligible to make the election to waive the Qualified Joint and Survivor Annuity of subsection (a) shall be eligible to elect to receive his/her benefits as provided in Section 9.03. The election shall be in writing and may be revoked at any time during the Joint and Survivor Election Period. New elections and revocations may be made any number of times during the Joint and Survivor Election Period after a previous election or revocation. For purposes of this paragraph, the term “Joint and Survivor Election Period” shall mean the ninety (90) day period ending on the Distribution Date.

 

 

 

 

 

A waiver of the Qualified Joint and Survivor Annuity made pursuant to subsection (b) shall be automatically revoked upon the marriage of the Participant, prior to his/her Distribution Date, to a person who has not consented to the waiver pursuant to subsection (1) above or from whom consent was not required by reason of subsection (2) above; or upon a change in the form of benefit payment or in the Beneficiary designated by the Participant pursuant to subsection (1)(ii) above, unless the spouse has relinquished the right to specify the form of benefit payment and to name the Beneficiary.

 

If the requirements of the preceding paragraphs are not satisfied, the Participant shall receive his/her Annuity Eligible Accrued Benefit in the form of the Qualified Joint and Survivor Annuity.

 

 

 

 

9.08         Distribution of Transferred Benefits: To the extent not already provided under the terms of this Plan, and notwithstanding any other provisions to the contrary, this Plan guarantees to each Participant whose Account includes Transferred Benefits the right to receive all Transferred Benefits in any optional form of benefit (including time, manner and method of distribution) protected under IRC §411(d)(6). The extent and nature of the optional forms of benefits so protected shall be determined by reference to the Predecessor Plan(s). Effective for Plan Years commencing after December 31, 2002, (or if sooner, ninety (90) days after notice is given to all Plan Participants that satisfies DOL Reg. §2520.104b-3) no optional forms of benefit, except those required under Section 9.06 and those set forth in Section 9.03 shall be available under the Plan.

 

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ARTICLE X  DEATH BENEFITS

 

10.01        Death Benefits Payable: If a Participant who has not received a distribution of his/her entire Vested Interest dies, whether before or after his/her Distribution Date, the death benefit payable to the Beneficiary, Contingent Beneficiary or estate (as the case may be) of the Participant shall be all amounts credited (or to be credited) to his/her Accounts then held by the Trustee for the Participant’s benefit, without regard to the Participant’s Vested Percentage and that have yet to be distributed. If an Inactive Participant who has not received a distribution of his/her entire Vested Interest dies, whether before or after his/her Distribution Date, the death benefit payable to the Beneficiary, Contingent Beneficiary or estate (as the case may be) of the Inactive Participant shall be the remaining Vested Interest in the Inactive Participant’s Accounts then held by the Trustee for the Inactive Participant’s benefit.

 

10.02        Designation of Beneficiary: Each Participant or Inactive Participant shall be given the opportunity to designate a Beneficiary and Contingent Beneficiary and from time to time the Participant or Inactive Participant may file with the Plan Administrator a new or revised designation, provided that his/her spouse shall be his/her Beneficiary unless his/her spouse has consented in writing to the designation of a Beneficiary other than his/her spouse or it is established to the satisfaction of the Plan Administrator that the consent of the spouse may not be obtained because there is no spouse, the spouse cannot be located or because of such other circumstances as may be set forth in Regulations issued pursuant to Code §417(a)(2)(B). The change in marital status of a Participant from married to unmarried or vice versa shall void any outstanding beneficiary designation and require the completion and execution of a new beneficiary designation consistent with the provisions of this Section. Each Participant or Inactive Participant may also designate any form of payment available under Section 9.03 to the Beneficiary or Contingent Beneficiary. A Participant shall not be permitted to designate the form of payment on any beneficiary designation amended or executed after the Effective Date. Beneficiary designations shall be completed in the manner approved by the Plan Administrator or set forth in writing on a form provided by the Plan Administrator.

 

If upon the Participant’s death his/her designated Beneficiary does not survive him, the Contingent Beneficiary shall become the Beneficiary and any death benefits shall be paid to him or her. If a deceased Participant is not survived by a designated Beneficiary or Contingent Beneficiary, or if no Beneficiary was designated, the benefits shall be paid to the Participant’s surviving spouse or if there is no surviving spouse, then to the executor or administrator of the Participant’s estate. For purposes of determining the right of a Beneficiary, Contingent Beneficiary or surviving spouse to receive a benefit on account of the death of a Participant, he or she shall not be deemed to have survived the Participant unless he or she shall survive the Participant by at least thirty (30) days.

 

If the Beneficiary, Contingent Beneficiary or surviving spouse survives the Participant and is entitled to receive benefits under this Section 10.02, but dies prior to receiving the entire death benefit payable to him or her, the remaining portion of the death benefit shall be paid to the person’s named beneficiary or, if none, to the person’s estate subject to the right of commutation.

 

10.03        Death Benefit Payment Procedure: Upon receipt of a claim for benefits, the Participant’s death benefit shall be paid by the Trustee to the Beneficiary designated by the Participant pursuant to Section 10.02. The Beneficiary of a Participant may elect to receive any death benefits payable hereunder in any Optional Form of Payment provided in Article IX other than a Joint and Survivor Annuity. Until such time as distribution is made to the Beneficiary the Participant’s Account shall be held in the Plan, subject to all investment directions of the Beneficiary as though he or she were the Participant. The Beneficiary’s election to receive distribution shall be made in the same manner provided under Articles IX and XI for distribution to Participants. If the Beneficiary fails to elect a form of payment, then subject to the small benefit distribution rules in the next paragraph, the Plan shall distribute the death benefit in annual installments, commencing no later than December 31 of the Plan Year following the Plan Year of the Participant’s death, with each subsequent installment payment to be made no later than each December 31 thereafter.

 

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If the lump sum benefit otherwise payable to the Beneficiary is not more than Five Thousand Dollars ($5,000.00), and payment of benefits to the deceased Participant has not previously commenced, the benefit shall be paid as a single lump sum payment. Payment of any death benefits under this paragraph shall commence, unless otherwise designated by the Participant or elected by the Beneficiary, as soon as Administratively Feasible following the Participant’s date of death and the end of the calendar month in which the Plan Administrator receives a claim for benefits. However, if the amount of the benefit required to paid on the date determined above cannot be ascertained by that date, or if it is not possible to make the payment on that date because the Plan Administrator has been unable to ascertain or locate the Beneficiary after making reasonable efforts to do so, a payment retroactive to that date may be made as soon as Administratively Feasible after the earliest date on which the Beneficiary or amount of the payment can be ascertained or the date the Beneficiary is located, whichever is applicable

 

10.04       Required Distributions Upon Death: Notwithstanding any other provisions of this Plan, payment of death benefits shall be subject to the following rules:

 

 

 

 

 

 

For purposes of this Section 10.04(a) and Sections 10.04(e)and (f), unless Section 10.04(a)(4) applies, distributions are considered to begin on the participant’s Required Beginning Date. If Section 10.04(a)(4) applies, distributions are considered to begin on the date distributions are required to begin to the surviving spouse under Section 10.04(a)(1).

 

 

 

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10.05        Qualified Pre-retirement Survivor Annuity and Related Matters: Effective for all distributions commencing after December 31, 2001, (provided notice has been delivered to all Participants and Beneficiaries as required in DOL Reg. §2520.104b-3) this Section shall apply only to a Participant or Inactive Participant with respect to whom this Plan holds Transferred Benefits that were directly or indirectly transferred from a defined benefit pension plan, money purchase pension plan, or other qualified plan to which Code §401(a)(11)(B)(iii) applies. Furthermore, this Section shall only apply to that portion of the Participant’s Transferred Benefits attributable to such transfer (“Annuity Eligible Accrued Benefits”). Prior to January 1, 2004, this Section shall apply as provided in the prior Plan.

 

If a Participant or Inactive Participant dies prior to his/her Distribution Date and is survived by a spouse, a Qualified Pre-retirement Survivor Annuity shall be paid to the surviving spouse except as otherwise provided by the following provisions. A Qualified Pre-retirement Survivor Annuity is an immediate annuity payable to the Participant for the life of the spouse in monthly amounts equal to the monthly amount that can be purchased from an insurer with fifty percent (50%) of the Annuity Eligible Accrued Benefits of the Participant as of the date of his/her death.

 

 

 

 

 

 

 

 

 

 

 

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The Plan Administrator shall also provide an explanation to each Participant who incurs a separation from service prior to receiving the explanation no later than the earlier of the end of the one-year period beginning on the date of his/her separation from service or the end of the period described above.

 

 

 

 

10.06        Optional Forms of Benefit Guaranteed: To the extent not already provided under the terms of this Plan, and notwithstanding any other provisions to the contrary, this Plan guarantees to the Beneficiaries of each Participant whose Account includes Transferred Benefits the right to receive all Transferred Benefits in any optional form of benefit (including time, manner and method of distribution) protected under IRC S 411(d)(6). The extent and nature of the optional forms of benefits so protected shall be determined by reference to the Predecessor Plan(s). Effective for Plan Years commencing after December 31, 2002, (or if sooner, ninety (90) days after notice is given to all Plan Participants that satisfies DOL Reg. §2520.104b-3) no optional forms of benefit, except those required under Section 9.06 and those set forth in Section 9.03 shall be available under the Plan.

 

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ARTICLE XI  BENEFITS UPON OTHER TERMINATION OF EMPLOYMENT

 

11.01       Vested Amounts: Upon attainment of his/her Normal Retirement Age or the occurrence of death or Disability while employed by an FX Employer, a Participant shall be one hundred percent (100%) vested in his/her Accrued Benefit. Prior to the occurrence of any of the events described above a Participant shall have a Vested Interest in his/her Accrued Benefit equal to the sum of the following:

 

 

 

Percent of Vested

 

 

 

Effective January 1, 2005, a Participant shall be one hundred percent (100%) vested in the balance in his/her Matching Contribution Account which has been allocated to his/her Matching Contribution Account on account of Participant Elective Deferrals made after December 31, 2004, and shall be vested in a percentage of the balance in his/her Profit-Sharing Contribution Account attributable to Profit Sharing Contributions made to the Plan after January 1, 2004, according to the Participant’s Years of Vesting Service, and consistent with the following schedule:

 

Percent of Vested

 

 

The percentage of his/her Accrued Benefit attributable to the Participant’s Employer Contribution Accounts in which he is not vested shall be forfeited by him as provided in Section 11.06.

 

11.02        Distribution of Vested Interest: Subject to the provisions of Section 9.06 and Article XXII, a Participant who incurs a Termination of Employment for any reason other than retirement or death shall receive a single lump sum payment equal to the Participant’s Vested Interest as of the date payment is made. The amount of the lump sum payment shall be equal to the Participant’s Vested Interest on the date payment is made. Payment shall be made in cash only, to the extent the Participant’s Vested Interest is attributable to the balance in the Participant’s General Investments Account and in Employer Securities to the extent the Participant’s Vested Interest is attributable to the balance in the Participant’s Employer Securities Account.

 

If a Participant elects a deferred payment, then payment of the Participant’s Vested Accrued Benefit shall be deferred to the subsequent date elected by the Participant, which may be no later than the latest date permitted under Section 9.05, or (if no election is made) to the earliest date permitted under Section 9.04, as though the Participant had then retired. Distribution shall be in accordance with the provisions of Section 9.03.

 

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If the lump sum amount that would be payable to the terminated Participant is not more than Five Thousand Dollars ($5,000), without regard to whether the Vested Accrued Benefit in the Participant’s Account has ever exceeded that amount at the time of any prior distribution, the benefit shall be paid as a single lump sum payment in cash as soon as Administratively Feasible following the end of the calendar month in which his/her Termination of Employment occurs without regard to any Participant consent requirement or the requirements of Section 9.06. For this purpose the Vested Accrued Benefit held in the Participant’s Employer Securities Account shall be valued as of the most recent preceding Valuation Date.

 

If the Participant elects distribution following Termination of Employment, payment shall commence after the later of the date on which the Participant makes the distribution request (by filing a claim for benefits) or terminates employment, according to the following rules:

 

 

 

 

If an Inactive Participant dies or incurs a Disability before his/her Normal Retirement Date, the Plan Administrator, upon notice of the death or Disability, shall direct the Trustee to make payment of the Participant’s Vested Interest to him (or to his/her Beneficiary if the Participant is deceased) in accordance with the provisions of Article X in the case of death, or Section 9.02 in the case of Disability.

 

Notwithstanding the above, if a terminated Participant is re-employed by the Employer prior to distribution of his/her Vested Interest, then no distribution shall be made until his/her employment is again terminated or until the occurrence of another event permitting distribution under the terms of the Plan.

 

For all distributions commencing on or after March 28, 2005, the five thousand dollar ($5,000) threshold amount in this Section shall be reduced to one thousand dollars ($1,000).

11.03       Eligible Rollover Distributions: Notwithstanding any provision of this Plan to the contrary, a Distributee may elect, at the time and in the manner prescribed by the Plan Administrator, to have any portion of an Eligible Rollover Distribution paid directly to an Eligible Retirement Plan specified by the Distributee in a Direct Rollover. For purposes of this Section 11.03 the following definitions shall apply:

 

 

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Effective for distributions made after December 31, 2001, any amount that is distributed on account of hardship (without regard to whether the hardship withdrawal is attributable to Elective Deferrals) shall not be an eligible rollover distribution and the Distributee may not elect to have any portion of such a distribution paid directly to an eligible retirement plan. A portion of a distribution shall not fail to be an eligible rollover distribution merely because the portion consists of Employee Voluntary Contributions that are not includable in gross income. However, such portion may be transferred only to an individual retirement account or annuity described in Code §§408(a) or (b), or to a qualified defined contribution plan described in Code §§401(a) or 403(a) that agrees to account separately for amounts so transferred, including separately accounting for the portion of the distribution that is includable in gross income and the portion of the distribution that is not so includable.

 

 

Effective for distributions made after December 31, 2001, an eligible retirement plan shall also mean an annuity contract described in Code §403(b) and an eligible plan under Code §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. 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 relation order, as defined in Code §414(p).

 

 

 

11.04        Breaks in Service and Vesting: If a Participant has a One Year Break in Service, the Participant’s Years of Vesting Service before the One Year Break in Service shall not be included in computing Years of Vesting Service until the Participant shall have completed one Year of Vesting Service after the One Year Break in Service. If an Employee terminated employment prior to becoming a Participant and incurred a One Year Break in Service, or if a Participant did not have any Vested Interest derived from Employer contributions prior to a One Year Break in Service, Years of Vesting Service before a One Year Break in Service shall not be included in Years of Vesting Service calculated after the Participant’s One Year Break in Service if the number of consecutive One Year Breaks in Service equals or exceeds the greater of five (5) or the aggregate number of such Years of Vesting Service before the One Year Break in Service.

 

Solely for the purpose of determining the vested percentage of a Participant’s Accrued Benefit derived from Employer contributions that accrued prior to a five (5) consecutive one (1) year Break in Service period, the Plan shall disregard any Year of Service subsequent to such five (5) consecutive one (1) year Breaks in Service period.

 

If a Participant has a One Year Break in Service, and the break does not arise on account of Termination of Employment, the Participant shall not be credited with a Year of Vesting Service for that Plan Year. However, no amounts in the Participant’s Accounts shall be forfeited.

 

11.05        No Increase in Pre-break Vesting: For purposes of Section 11.01, Years of Vesting Service after a Termination of Employment that resulted in five (5) consecutive One Year Breaks in Service shall not increase the vested percentage of a Participant’s Account that was earned before such five (5) consecutive One Year Breaks in Service.

 

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11.06        Disposition of Forfeitures: Amounts forfeited by terminated Participants from their Employer Matching Contribution Accounts shall be used to reduce the Employer’s contribution otherwise required pursuant to Section 5.06 and shall be allocated in the same manner as Employer Matching Contributions in accordance with Section 6.02(c). Amounts forfeited by terminated Participants from their Employer Profit Sharing Contribution Accounts shall be allocated as though additional contributions the same manner as the Employer’s Profit Sharing Contribution made pursuant to Section 5.07 to Participants’ Accounts as provided in Section 6.02(d). To the extent possible, the Plan Administrator must forfeit from a Participant’s General Investments Account before making a forfeiture from his/her Employer Securities Account.

 

Forfeiture of any non-vested interest with respect to any Participant shall occur:

 

 

 

 

Non-vested interests of terminated Participants shall be held by the Trustee in the respective Accounts of the Participant until the date determined above and shall then be forfeited by the Participant and allocated in accordance with this Section.

 

11.07        Distribution to Participants Who Are Less Than 100% Vested: In the event a Participant who is less than one hundred percent (100%) vested in his entire Account hereunder incurs a Termination of Employment and returns to the employ of the Employer after a forfeiture of his/her non-vested interest but prior to incurring five (5) consecutive One Year Breaks in Service, and prior to his/her re-employment was paid his/her Vested Interest, the non-vested portion of his/her Accrued Benefit that was forfeited by the Participant shall be disregarded in computing his/her Accrued Benefit after re-entry into the Plan, unless the Participant repays, pursuant to Section 11.08, the amounts distributed from his/her Account from which an amount was forfeited. If a Participant does repay the distribution, the balance in such Account shall be restored as provided in Section 11.09.

 

In the event a Participant who had no Vested Interest in any Employer Contribution Account separated from service and returns to the employ of the Employer after a forfeiture of his/her non-vested interest but prior to incurring five (5) consecutive One Year Breaks in Service, any non-vested amounts forfeited by the Participant shall be restored, as provided in Section 11.09, to the Account from which an amount was forfeited.

 

11.08       Repayment of Distribution: A Participant described in Section 11.07 who received a lump sum distribution of less than one hundred percent (100%) of his/her Accrued Benefit shall be entitled to repay the amounts distributed from all Employer Contribution Accounts. The repayment must be for the full amount distributed from all Employer Contribution Accounts and must be made not later than the earlier of:

 

 

 

Any repayment shall not be included in applying the limitations of Article V or Article VIII hereunder.

 

11.09       Restoration of Accounts: Any amount repaid pursuant to Section 11.08 shall be credited to the Participant’s Accounts for which it is repaid, with credit to be made as of the date of repayment. The Account shall also be credited with the amount previously forfeited from the Account, with credit to be made as of the last day of the Plan Year in which repayment is made.

 

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In the case of a Participant to whom the second paragraph of Section 11.07 applies, the Participant’s Accounts from which amounts were previously forfeited shall be credited with the amount so forfeited, with credit to be made as of the last day of the Plan Year in which the Participant resumes participation in the Plan.

 

Any previously forfeited amounts that are credited to Participants’ Accounts pursuant to this Section shall be derived from the following sources in the following order of priority:

 

 

 

 

If for any Plan Year, the Accounts of more than one Participant are required to be restored, then restorations shall be derived from the above sources in the same proportion that the amount to be restored to each Participant bears to the total amount to be restored to all such Participants for the Plan Year. Any such amounts credited to a Participant’s Accounts shall not be included in applying the limitations of Article V or Article VIII hereunder.

 

11.10       Amendments to the Vesting Schedule: No amendment to the vesting schedule or provisions of Section 11.01, or to this Plan that directly or indirectly affects the computation of a Participant’s Accrued Benefit, shall deprive a Participant of a vested right to the benefits accrued to the effective date of the amendment. Furthermore, if the vesting schedule or provisions of Section 11.01 are amended, each Participant with at least three (3) Years of Vesting Service (determined as of the later of the date the amendment is adopted or the date the amendment is effective) may elect to have his/her vesting percentage computed under the Plan without regard to the amendment. The period during which the election may be made shall commence with the date the amendment is adopted and shall end on the latest of:

 

 

 

 

In the absence of any written notice under (c) above, any Participant who has at least three (3) Years of Vesting Service (as determined above) shall at all times receive a Vested Interest under whichever vesting schedule provides the greatest Vested Interest.

 

ARTICLE XII  FIDUCIARY DUTIES

 

12.01        General Fiduciary Duty: A Fiduciary, whether or not a Named Fiduciary, shall discharge his/her duties solely in the interest of the Participants and their Beneficiaries hereunder. All assets of this Plan shall be devoted to the exclusive purpose of providing benefits to Participants and their Beneficiaries and defraying the reasonable expenses of administering the Plan. Each Fiduciary, whether or not a Named Fiduciary, shall discharge his/her duties with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims. Each Fiduciary shall also discharge his/her duties in a manner consistent with the documents and instruments governing the Plan to the extent such documents and instruments are consistent with law. No Fiduciary, whether or not a Named Fiduciary, shall engage in any of the prohibited transactions with disqualified persons or parties-in-interest as those terms and transactions are defined by the Code and ERISA, as passed and as it may be amended, and regulations thereunder.

 

12.02       Allocation of Responsibilities: Each Named Fiduciary shall have only those duties and responsibilities expressly allocated under the terms of this Plan. No other duties or responsibilities shall be implied.

 

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12.03        Delegation of Responsibilities: Each Named Fiduciary may delegate the fiduciary responsibilities other than Trustee responsibilities allocated to such Fiduciary under this Plan to any person other than a Named Fiduciary. If any duties or responsibilities are delegated under this section, the person to whom the duties or responsibilities are delegated shall acknowledge the fact in writing and shall specify in writing the duties and responsibilities so delegated. All other duties and responsibilities shall be deemed not to have been delegated.

 

12.04       Liability for Allocation or Delegation of Responsibilities: A Named Fiduciary shall not be liable for the acts or omissions of a person to whom responsibilities or duties are allocated or delegated in accordance with Section 12.02 or Section 12.03 except to the extent such Named Fiduciary breaches his/her obligation under Section 12.01:

 

 

 

 

Nothing in this section shall relieve a Fiduciary from liability incurred under Section 12.05.

 

12.05       Liability for Co-Fiduciaries: In addition to the liability a Fiduciary may incur for the breach of his/her duty under Section 12.01 or 12.04, a Fiduciary shall be liable for a breach of Fiduciary duty committed by another Fiduciary in the following circumstances:

 

 

 

 

12.06        Same Person May Serve in More than One Capacity: Nothing herein shall prevent any person from serving in more than one Fiduciary capacity.

 

12.07       Indemnification: The Employer shall hold harmless and indemnify to the fullest extent permitted by ERISA each non-Trustee Fiduciary of the Plan with respect to the consequences of all actions or failures to act of the Fiduciary while carrying out his/her responsibilities under the Plan. The Employer shall further hold harmless and indemnify each Fiduciary who is subjected to any claim or action or who is made a party in any threatened, pending or completed proceeding, including, without limitation, any proceeding brought by or in the name of the Plan or by any participant thereof or by any governmental agency. The Employer’s indemnification shall include any and all expenses (including attorney’s and/or consultant’s fees), costs, damages, judgments, fines, interest, penalties (including any that may be imposed under ERISA §502(l)) and/or amounts paid in settlement and that are actually and reasonably incurred by a Fiduciary in connection with the investigation, defense, settlement, preparation for trial, trial, or appeal of any proceeding, claim or action. Notwithstanding the foregoing, the Employer shall not be obligated to hold harmless or indemnify a Fiduciary of the Plan if indemnification is inconsistent with applicable law or if the act(s) or omission(s) of the Fiduciary to be indemnified are determined to have involved intentional misconduct, gross negligence or a knowing violation of ERISA or other applicable law by the Fiduciary.

 

To the extent a Fiduciary is a named insured under any policy of liability insurance maintained by the Plan or the Employer, the policy and the payment obligations of the insurance company under the policy shall be deemed primary and in lieu of the Employer’s obligations under this Section 12.07, but only to the extent of the coverage provided in the policy. No insurer under any policy shall claim any right to reimbursement or refund from the Employer and no obligation of the Employer hereunder shall be deemed to inure to the benefit of any third party.

 

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ARTICLE XIII  THE PLAN ADMINISTRATOR

 

13.01       Appointment of Plan Administrator: The Board of Directors of the Plan Sponsor shall appoint the Plan Administrator, which may be the Plan Sponsor. If the Plan Sponsor is appointed as Plan Administrator, the Plan Sponsor may appoint one or more Committees to carry out the duties of the Plan Administrator under this Plan. In that event all references in the Plan to the Plan Administrator shall be deemed to refer to the appointed Committee. The duties of the Committees shall be divided as the Plan Administrator deems appropriate and may be designated by separate instrument. The Committees shall act by majority vote except that they shall act by unanimous vote at any time when there are only two members comprising the Committee.

 

13.02       Acceptance by Plan Administrator: The Plan Administrator shall accept its appointment by joining with the Employer in the execution of this Agreement.

 

13.03        Signature of Plan Administrator: All persons dealing with the Plan Administrator may rely on any document executed by the Plan Administrator; or, in the event of appointment of a Committee or Committees, such persons may rely on any document executed by at least one member of the appropriate Committee as being the act of the Plan Administrator.

 

13.04       Appointment of an Investment Manager: The Plan Administrator may appoint an Investment Manager or Managers to manage, acquire and dispose of any assets of the Plan. In the event responsibility for appointment of Investment Managers is delegated by the Plan Administrator to a named Committee, that delegation shall carry with it the authority of the Committee to act as a Named Fiduciary for purposes of ERISA in appointing an Investment Manager. The Investment Manager shall accept his/her appointment by written agreement executed by the Plan Administrator and Investment Manager. This written agreement shall specify the Plan assets for which the Investment Manager is responsible and such written instrument shall be kept with the other documents governing the operation of the Plan. The Trustee shall be entitled to rely on written instructions from the Investment Manager and shall be under no obligation to invest or otherwise manage any asset of the Plan subject to the management of the Investment Manager.

 

13.05        Duties of the Plan Administrator: The Plan Administrator shall be responsible for the general administration of the Plan including, but not limited to, the following:

 

 

 

 

 

 

 

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13.06        Claims Procedure: Claims for benefits under the Plan shall be presented to the Plan Administrator or its designated representative pursuant to procedures established and approved by the Plan Administrator, which may include electronic means. Notice of the disposition of a claim shall be furnished to the claimant no later than ninety (90) days after the application is submitted. In the event the claim is denied, the reasons for the denial shall be specifically set forth in a notice in language calculated to be understood by the claimant. Pertinent provisions of the Plan shall be cited, and, where appropriate, an explanation as to how the claimant may perfect the claim shall be provided. In addition, the claimant shall be furnished with an explanation of the Plan’s claim review procedure.

 

13.07        Claims Review Procedure: Any Employee, former Employee, or Beneficiary of either, whose benefit claim submitted pursuant to Section 13.06 has been denied (whether in full or in part) shall be entitled to request further consideration to his/her claim by filing an appeal with the Plan Administrator, which may be in the form of a request for reconsideration. The request, together with a written statement of the reasons why the claimant believes his/her appeal should be allowed, shall be filed with the Plan Administrator no later than sixty (60) days after receipt of the written notification provided for in Section 13.06. The Plan Administrator shall conduct the review of the appeal. The Plan Administrator, in its sole discretion, may order a hearing at which the claimant may be represented by an attorney or any other representative of his/her choosing and at which the claimant shall have an opportunity to submit written and oral evidence and arguments in support of his/her claim. During the appeal review period or at the hearing (upon five (5) business days prior written notice to the Plan Administrator) the claimant or his/her representative shall have an opportunity to review all documents in the possession of the Plan that are pertinent to the claim at issue and its disallowance. A final decision on the claim shall be made by the Plan Administrator within sixty (60) days of receipt of the appeal unless (i) because of special circumstances there has been an extension of sixty (60) days that has been communicated in writing to the claimant, or (ii) a hearing is held, in which event the final decision shall be made within one hundred twenty (120) days of receipt of the appeal. The communication containing the Plan Administrator’s decision shall be in writing and shall be written in a manner calculated to be understood by the claimant. The communication shall include specific reasons for the Plan Administrator’s decision and specific references to the pertinent Plan provisions on which the decision is based. The communication shall also inform the claimant of the limitation on any further action by the claimant set forth in Section 13.08.

 

13.08       Limitations of Actions on Claims: The delivery to the claimant of the final decision of the Plan Administrator with respect to a claim for benefits under Section 13.06 that has been reviewed and considered under the appeal procedures of Section 13.07 shall commence the period during which the claimant may bring legal action under ERISA for judicial review of the Plan Administrator’s decision. No civil action with respect to the claim for benefits or the subject matter thereof may be commenced by the claimant, whether such action is pursued through litigation, arbitration or otherwise, prior to the completion of the claims and claims review process set forth in Sections 13.06 and 13.07, nor following the expiration of two (2) years from the date of delivery of the final decision of the Plan Administrator to the claimant under Section 13.07.

 

13.09        Compensation and Expenses of Plan Administrator: The Plan Administrator may engage the services of any person, including counsel, whose services, in the opinion of the Plan Administrator, are necessary to assist it in carrying out its responsibilities under the Plan. The Employer may direct the Trustee to pay any expenses properly and actually incurred for such services from the Trust Fund, including such reasonable compensation for services provided by the Plan Administrator as shall have been agreed upon between them, or, alternatively, the Employer may pay such expenses or compensation directly; provided, however, that no individual acting as Plan Administrator shall receive any compensation if he already receives full-time pay from the Employer.

 

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                13.10      Removal or Resignation: A Plan Administrator may be removed by the Board of Directors of the Plan Sponsor upon thirty (30) days written notice, and may resign upon thirty (30) days written notice to the Board of Directors. Upon such removal or resignation, or the inability of the Plan Administrator for any other reason to act as Plan Administrator, the Board of Directors shall appoint a successor Plan Administrator. The successor Plan Administrator, upon written acceptance, shall have all the duties and responsibilities of a Plan Administrator herein. The former Plan Administrator shall deliver to the successor Plan Administrator all records and documents that it holds relating to the Plan upon removal or resignation.

 

13.11       Records of Plan Administrator: The Plan Sponsor shall have access, upon request, to all the records of the Plan Administrator that relate to the Plan.

 

13.12        Other Responsibilities: Nothing in this Article shall be construed to limit the responsibilities and duties allocated to the Plan Administrator in other Articles of this Plan.

 

ARTICLE XIV  THE TRUSTEE

 

14.01       Appointment of Trustee: The Board of Directors of the Plan Sponsor shall appoint the Trustee. Nothing in this Plan shall prevent the Plan Sponsor from appointing multiple Trustees or creating multiple Trust Funds, each with separate Trustees. If more than one person is appointed as Trustee of a single Trust Fund, they shall act by majority vote; provided, however, that they shall act by unanimous vote at any time when there are only two Trustees. In the event there is more than one Trustee, the reference to Trustee shall be deemed to refer to all the Trustees.

 

14.02       Acceptance by Trustee: The Trustee shall accept its appointment by executing a separate trust agreement in a form acceptable to the Trustee and Employer. The provisions of the separate Trust Agreement shall control over those in this Plan, to the extent such provisions define the duties of the Trustee with respect to the Plan and Trust Fund. Prior to the effective date of the Trust Agreement the provisions of the Prior Plan concerning the Trustee and its duties shall apply.

 

14.03        Provisions of Trust Agreement: The separate Trust Agreement shall authorize and empower the Trustee to invest up to one hundred percent (100%) of the Trust Fund allocated to the Employer Matching Contribution and Profit Sharing Contribution Accounts in Employer Securities.

14.04        Participant Voting Rights: The separate Trust Agreement shall provide for voting Employer Securities by the Trustee only. The Trust Agreement may permit voting direction from a committee established by the Plan Sponsor for that purpose.

 

14.05       Investment Committee: In the event of appointment of an Investment Committee by the Plan Administrator, then except to the extent responsibility for certain Plan assets has been allocated to an Investment Manager as provided in Section 13.04, the Investment Committee is authorized and empowered to direct investment of the Trust Fund, consistent with the terms of the separate Trust Agreement. The Investment Committee shall direct investment and reinvestment of the Trust Fund to keep the Trust Fund invested without distinction between principal and income and in such securities or property, real or personal, wherever situated, as the Committee shall deem advisable consistent with the investment policy of the Plan established under Article XVIII. The Committee shall give due regard to any limitations imposed by the Code or ERISA so that at all times this Plan may qualify as a qualified Plan and Trust.

 

14.06       Liability for Plan Expenses: The Plan specifically permits payment from the Plan’s Trust Fund of Plan administration and operation expenses, as well as costs and expenses associated with specific assets in the Trust Fund, consistent with the principles and rules set forth in this Section.

 

 

 

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14.07        Payment From the Trust Fund: At the direction of the Plan Administrator, the Trustee shall, from time to time, in accordance with the terms of the Plan, make payments out of the Trust Fund. The Trustee shall not be responsible in any way for the application of such payments.

 

ARTICLE XV  THE EMPLOYER

 

15.01        Notification: The Plan Sponsor shall notify the Plan Administrator and the Trustee in writing if a new Plan Administrator or Trustee has been appointed hereunder.

 

15.02       Record Keeping: Each participating FX Employer shall maintain records with respect to each Employee sufficient to enable the Plan Administrator and Trustee to fulfill their duties and responsibilities under the Plan.

 

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15.03        Bonding: The Plan Administrator shall procure bonding to insure the Plan against risk of loss. The persons to be bonded and the amount necessary shall be determined in accordance with ERISA and regulations thereunder. No bonding shall be required pursuant to state law.

 

15.04        Signature of Employer: All persons dealing with the Plan may rely on any document executed in the name of the Plan Sponsor by its general partner or by any other individual duly authorized by its Board of Directors, whether retroactive or prospective.

 

15.05        Plan Counsel and Expenses: The Plan Sponsor may engage the service of any person or organization, including counsel, whose services, in the opinion of the Plan Sponsor are necessary for the establishment or maintenance of this Plan. The expenses incurred or charged by a person or organization engaged by the Plan Sponsor pursuant to the previous sentence shall be paid by the Plan Sponsor, or alternatively, the Plan Sponsor may direct the Trustee to pay such expenses from the Trust Fund.

 

15.06        Other Responsibilities: Nothing in this Article shall be construed to limit the responsibilities or duties allocated to the Plan Sponsor and FX Employers in other Articles of the Plan.

 

 

 

 

 

15.08       Employer Contributions: Each participating FX Employer shall contribute to the Plan that Employer’s share of Elective Deferral and Employer Matching Contributions according to the elections of the Participants employed by that Employer, as well as that Employer’s share of Employer Profit Sharing Contributions.

 

ARTICLE XVI  PLAN AMENDMENT OR MERGER

 

16.01        Power to Amend: The Plan Sponsor and the Plan Administrator shall each have the power to amend, alter, or wholly revise the Plan, prospectively or retrospectively, at any time, and the interest of every Participant is subject to the power so reserved. The Plan Administrator shall not exercise its power to amend without consent of the Plan Sponsor unless the Plan Sponsor has ceased to operate as a viable business entity or has filed or is subject to a petition under Chapter 7 of the U.S. Bankruptcy Code.

 

16.02       Limitations on Amendments: Upon execution of any amendment, the Employer, Plan Administrator, Trustees, Participants and their Beneficiaries shall be bound thereby; provided, however, that no amendment:

 

 

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Notwithstanding the above, any amendment may be made that may be or become necessary in order that the Plan will conform to the requirements of Code §401(a), or of any generally similar successor provision, or in order that all of the provisions of the Plan will conform to all valid requirements of applicable federal and state laws.

 

16.03        Method of Amendment: If the Plan is amended by the Plan Sponsor, the amendment shall be stated in an instrument in writing signed in the name of the Plan Sponsor by a duly authorized corporate officer, or by any other individual duly authorized by the Plan Sponsor, whether retroactive or prospective. If the Plan is amended by the Plan Administrator, the amendment shall be stated in an instrument in writing signed in the name of the Plan Administrator by the individual duly authorized by the Plan Administrator for that purpose, whether retroactive or prospective.

 

16.04        Notice of Amendment: Written notice of each amendment shall be given promptly by the Plan Sponsor and the Plan Administrator to each other, to any other Employers and the Trustee.

 

16.05        Merger or Consolidation: This Plan and Trust may be merged or consolidated with, or its assets or liabilities may be transferred to, any other plan only if the benefits that would be received by each Participant of this Plan, in the event of a termination of the Plan immediately after such merger, consolidation or transfer, are at least equal to the benefits the Participant would have received if the Plan had terminated immediately before the merger, consolidation or transfer. The Trustee possesses the specific authority to enter into merger agreements or direct transfer of assets agreements with the Trustees of other retirement plans described in Code §401(a) and to accept the direct transfer of Plan assets, or to transfer Plan assets, as a party to any such agreement.

 

The Trustee may accept a direct transfer of Plan assets on behalf of an Employee prior to the date the Employee satisfies the Plan’s eligibility condition(s). If the Trustee accepts such a direct transfer of Plan assets, the Plan Administrator and Trustee shall treat the Employee as a Participant for all purposes of the Plan except the Employee may not make Elective Deferral contributions under Article V nor shall the Employee share in Employer contributions or Participant forfeitures under Article VI until he actually becomes a Participant in the Plan and satisfies the Plan’s benefit accrual requirements.

 

The Trustee shall hold, administer and distribute the transferred assets as a part of the Trust Fund and the Trustee shall maintain a separate Predecessor Plan Account for the benefit of the Employee on whose behalf the Trustee accepted the transfer in order to reflect the value of the transferred assets.

 

ARTICLE XVII  TERMINATION OR DISCONTINUANCE OF CONTRIBUTIONS

 

17.01       Right to Terminate: The Plan Sponsor may terminate the Plan at any time by appropriate corporate action specifying the termination date. The Plan Sponsor shall promptly notify the Plan Administrator, Trustee and any other Employers of such action. Further, the Plan Sponsor shall notify all Participants and Inactive Participants of such action, and shall file all required reports with Federal agencies, in accordance with applicable regulations.

 

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17.02       Effect of Termination: In the event of a Plan termination or a complete discontinuance of Employer Contributions, the rights of all affected Participants to their Accrued Benefits as of the date of such termination shall be fully vested and shall not thereafter be subject to forfeiture, except to the extent that law or regulation may preclude such vesting in order to prohibit discrimination in favor of officers, shareholders, or highly compensated Employees. For purposes of the preceding sentence, a Participant who has terminated employment with the Employer and incurred five consecutive One Year Breaks in Service as of the termination date shall not be considered to be affected by such Plan termination, and shall be vested in his/her Accrued Benefit only to the extent provided in the other applicable Articles of this Plan. All rights of Participants in this Plan affecting Employer Securities held in trust for the benefit of Participants shall continue notwithstanding any Plan termination.

 

17.03        Manner of Distribution: In the event of a Plan termination, the Plan Administrator shall direct the Trustee to distribute the Accrued Benefits of all Participants, Inactive Participants, and Beneficiaries in accordance with Article IX or Article XI.

 

Notwithstanding the above, no payment shall be made to a Participant from his/her Participant Elective Deferral Account (or any other Account the contributions to which have been included in the Deferral Account for the Participant) unless or until such time as the Participant:

 

 

 

 

 

 

All Elective Deferral Accounts shall be maintained by the Trustee and distributed at such time and in such manner as previously provided herein. Alternatively, the balance in such Accounts may be transferred to another plan maintained or established by the Employer that qualifies under Code §401(a) as provided above, but only if such other plan contains the same restrictions on the distribution of such transferred amounts as described in the preceding paragraph.

 

17.04        No Reversion: No termination or amendment of this Plan and Trust and no other action shall divert any part of the funds to any purpose other than the exclusive benefit of Participants, Inactive Participants or their Beneficiaries except, and notwithstanding any other provision of this Plan to the contrary, any amount held in an unallocated suspense account that cannot be allocated to any Participant due to the limitations of Article VII may be returned to the Employer upon termination of the Plan.

 

17.05        Termination of an Employer: An Employer, other than the Plan Sponsor, may terminate its participation in the Plan at any time by a written resolution by the Board of Directors specifying the termination date. The Employer shall promptly notify the Plan Sponsor, Plan Administrator and Trustee of any such action or direction. The participation of an Employer in the Plan shall also terminate in the event of a complete discontinuance of contributions by such Employer.

 

17.06        Partial Termination: A partial termination of the Plan may be deemed to have occurred if a significant percentage of Participants are excluded from coverage by reason of amendment of the Plan, severance by an Employer or termination of an Employer, or if the Plan is amended to adversely affect the rights of employees to vest in benefits under the Plan or to reduce or eliminate future benefit accruals under the Plan. The determination of whether a partial termination has occurred shall be made on the basis of the facts and circumstances in a particular case.

 

17.07       Effect of Partial Termination: In the event of a partial termination of the Plan, the provisions of Section 17.02 shall apply to those Participants affected by the partial termination.

 

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ARTICLE XVIII  FUNDING POLICY FOR PLAN BENEFITS

 

18.01        Funding Method: The benefits provided by this Plan shall be funded by contributions of the Employer and Participants. Employer Matching Contributions and Employer Profit Sharing Contributions may consist entirely of Employer Securities. Elective Deferrals shall be made in cash only. The amount of all Employer Contributions shall be determined as provided in this Plan. The amount of all other contributions shall likewise be determined as provided in this Plan.

 

18.02       Investment Policy: This Plan has been established for the sole purpose of providing benefits to the Participants and their Beneficiaries. In determining investment directions and investment options available hereunder, the Plan Administrator shall establish a funding policy that considers the short and long-range needs of the Plan based on the evident and probable requirements of the Plan as to the time benefits shall be payable and the requirements therefor. Benefits may be provided through any combination of investment media designed to provide the requisite liquidity, growth and security appropriate to this Plan.

 

Benefits for Participants, to the extent not funded through Employer Securities, may be provided through any investment media offered by the Trustee or through the purchase of shares in any investment company regulated under the Investment Company Act of 1940, or through any investment proper and appropriate to be made by the Trustee in accordance with Article XIV, or through any combination of such investments.

 

The Plan may not obligate itself to acquire Employer Securities from a particular holder thereof at any indefinite time determined upon the happening of an event such as the death of the holder.

 

The Plan may not obligate itself to acquire Employer Securities under a put option binding upon the Plan. However, at the time a put option is exercised, the Plan may be given an option to assume the rights and obligations of the Employer under a put option binding upon the Employer.

 

All purchases of Employer Securities shall be made at a price which, in the judgment of the Plan Administrator, does not exceed the fair market value thereof. All sales of Employer Securities shall be made at a price which, in the judgment of the Plan Administrator, is not less than the fair market value thereof.

 

18.03        No Purchase of Life Insurance Contracts: Unless authorized by the Plan Sponsor pursuant to amendment to this Article XVIII, no insurance contracts shall be purchased by the Trustee on the life of any Participant.

 

18.04       Investment Fund: The Employer shall contribute to an Investment Fund that shall be established by the Trustee to provide such additional benefits, in addition to the proceeds or surrender values of any allocated annuity contracts, for Participants and their Beneficiaries provided by this Plan.

 

18.05        Non-transferability of Annuity Contracts: In the event the assets of the Trust Fund include allocated annuity contracts, all incidents of ownership in such contracts may be exercised by the Trustee, as directed by the Plan Administrator, except to the extent any death benefits payable thereunder may be paid to the Beneficiary designated by the Participant. All such contracts shall provide that the owner may not change the ownership of the contract, nor may it be sold, assigned or pledged as collateral for a loan, as security for the performance of an obligation, or for any other purpose to anyone. No annuity contract may be delivered to a Participant as a distribution from the Plan.

 

18.06        Participant Directed Investments: In the sole discretion of the Plan Administrator a Participant, Inactive Participant or Beneficiary may be allowed to direct the Trustee to invest all or part of the General Investments Account hereunder in such specific assets as are permitted under the terms of the Trust Agreement. However, the Participant may not direct the Trustee to use any portion of his/her General Investments Account to acquire any property that would be classified as a “collectible” and result in the investment being considered a distribution to the Participant under Code §408(m) and Regulations thereunder. That portion of the General Investments Account so directed shall be credited (charged) solely with all investment earnings (losses) and appreciation (depreciation) thereon, and charged with any fees or expenses incurred by the Trustee in investing or administering that portion of the Account. The portion so directed shall also be credited with any contributions thereto and charged with any withdrawals or payments made therefrom.

 

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Any portion of the General Investments Account, the investment of which is not directed by the Participant, shall be commingled and invested with other Trust assets. That portion shall be credited (charged) with its proportionate share of investment earnings (losses) and appreciation (depreciation) on the total non-directed assets of the Trust Fund, and charged with any specific or proportionate share of expenses incurred by the Trustee in investing or administering that portion of the Account as provided in Section  6.03. The non-directed portion shall also be credited with any contributions thereto and charged with any withdrawals or payments therefrom.

 

For purposes of Section 6.03, any transfers from the non-directed portion of the General Investments Account to the directed portion of the General Investments Account shall be treated as a withdrawal from the non-directed portion and a contribution to the directed portion, and vice versa for transfers from the directed portion to the non-directed portion.

 

The Plan Administrator and Trustee may establish a reasonable policy regarding the types of Accounts eligible, minimum balance required, and other reasonable criteria that must be satisfied in determining whether this option of directed investments shall be available to a Participant. The policy shall be in writing and shall be administered in a uniform and non-discriminatory manner.

 

18.07       Establishment of Separate Funds: There is hereby reserved to the Plan Administrator the right to direct the Trustee to establish separate investment funds within the General Investments Account. The Plan Administrator may follow different investment policies with respect to each investment fund so established. In the sole discretion of the Sponsoring Employer a Participant, Inactive Participant, Beneficiary or Alternate Payee shall be allowed to direct the Trustee to invest the amounts in his/her General Investments Account, consistent with the rules in this Section 18.07, in any or all of the investment Funds. The following administrative rules shall apply if such Funds are established:

 

 

 

 

 

 

 

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These rules shall be in writing and shall be administered in a uniform and non-discriminatory manner.

 

 

ARTICLE XIX  TOP-HEAVY PROVISIONS

 

19.01       Application: If this Plan is or becomes Top-Heavy for any Plan Year, the provisions of this Article shall supersede any conflicting provisions contained in any other Article of this Plan.

 

19.02        Special Definitions: For purposes of this Article and related Plan provisions, the following terms shall have the following meanings unless a different meaning is plainly required by the context:

 

 

 

 

 

 

 

 

 

 

 

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The determination of who is a Key Employee shall be made in accordance with Code §416(i)(1) and the Regulations thereunder. For purposes of determining who is a One Percent Owner, Five Percent Owner, or ten largest owner, the rules of Code §414(b), (c) and (m) shall not apply. Beneficiaries of Employees shall be treated as a Key Employee or Non-Key Employee based on the Key Employee status of such Employee; inherited benefits shall retain the Key Employee or Non-Key Employee status of the Employee.

 

The term “Non-Key Employee” shall mean any Employee or former Employee (and any Beneficiary of such Employee) who is not a Key Employee. Non-Key Employees include Employees who are former Key Employees.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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For purposes of the above, a Participant’s Accrued Benefit in a defined benefit plan shall be determined under a uniform accrual method that applies for all defined benefit plans maintained by the Employer or, if there is no such method, under the method described in Code §411(b)(1)(C) that provides the slowest rate of accrual.

 

 

19.03        Top-Heavy or Super Top-Heavy Minimum Required Allocation: For any Plan Year in which the Plan is Top-Heavy or Super Top-Heavy:

 

 

 

 

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If a Participant is required to receive a minimum allocation under this subsection and such amount exceeds the amount that the Participant would receive under other Plan provisions, the Employer shall make an additional contribution for such Participant. Such additional contribution shall be allocated to the Employer Contribution Account of such Participant in the same manner as regular Employer contributions, pursuant to Article VII.

 

 

 

19.04        Non-forfeitability of Minimum Top-Heavy Allocation: The minimum allocation of Employer contributions or forfeitures required under Sections 19.03 or 19.04 (to the extent required to be non-forfeitable under Code §416(b)) shall not be forfeited in the case of a suspension of benefits under Code §411(a)(3)(B) or a withdrawal of mandatory employee contributions under Code §411(a)(3)(D).

 

19.05        Top Heavy Compensation Limitation: for Plan Years commencing on and after January 1, 2002, Annual Compensation of each Participant taken into account under this Article XIX shall not exceed Two Hundred Thousand Dollars ($200,000), as adjusted for cost-of-living increases in accordance with Code §401(a)(17)(B). The cost-of-living adjustment in effect for a calendar year applies to Annual Compensation for the Plan Year that begins with or within such calendar year.

 

19.06        Minimum Vesting Provision: For any Plan Year in which this Plan is Top-Heavy, the vesting schedule under Section 11.01 shall automatically apply to each Participant in the Plan. This vesting schedule applies to all accrued benefits within the meaning of Code §411(a)(7), except those attributable to employee contributions, including benefits accrued before the effective date of Code §416 and benefits accrued before the Plan became Top-Heavy. Further, no reduction in vested benefits may occur in the event the Plan’s status as Top-Heavy changes for any Plan Year and any change in the Plan’s vesting schedule due to a change in Top-Heavy status shall be subject to the provision of Section 11.10. However, this Section does not apply to the Accrued Benefit of any Employee who does not have an Hour of Service after the Plan has initially become Top Heavy; such Employee’s Vested Interest attributable to Employer contributions and forfeitures shall be determined without regard to this Section.

 

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19.07       Adjustments to Limitations: For any Plan Year in which the Plan is Top-Heavy, the following adjustments shall be made to the denominators of the Defined Benefit Fraction and Defined Contribution Fraction as defined in Section 7.01.

 

 

 

19.08        Participant Elective Deferrals: Elective Deferrals shall not be taken into account in determining under Section 19.03(b) the amount of Employer contributions to be allocated to a Participant who is a Non-key Employee.

 

19.09       EGTRRA Modification of Top-Heavy Rules: Notwithstanding any other provision of this Article XIX, this section shall apply for purposes of determining whether the Plan is a top-heavy plan under Code §416(g) for Plan Years beginning after December 31, 2001, and whether the Plan satisfies the minimum benefits requirements of Code §416(c) for such years.

 

 

 

 

 

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ARTICLE XX  PROVISIONS AFFECTING BENEFITS

 

20.01       Availability of Loans: Upon acceptance of an application by a Participant who is an active Employee, the Plan Administrator shall direct the Trustee to make a loan to the Participant from his/her Plan Accounts (including any Rollover Accounts but excluding his/her Employer Securities Account), subject to the provisions of this Article. In considering a Participant’s application for a loan, the Plan Administrator shall base its decision whether to grant a loan on a uniform and non-discriminatory policy, without regard to the race, color, religion, sex, age or national origin of the applicant.

 

20.02       Loan Administration: The Plan Sponsor shall prepare and adopt a written Participant Loan Administration Policy Statement, whose provisions shall be made part of this Plan. The Policy Statement shall set forth:

 

 

 

 

 

 

 

 

20.03       Amount of Loan: The amount of any loan to a Participant when added to the outstanding balance of any previous loans made to him pursuant to this Article or under any other qualified plan maintained by the Employer, shall not exceed the least of:

 

 

 

 

 

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20.04        Collateral Requirements: Any loan to a Participant shall be secured solely by the balance in his/her Plan Account (including any Rollover Account, but excluding his/her Employer Securities Account). In the event of default on the loan, however, foreclosure and attachment of such security shall not occur until a distributable event occurs under the Plan.

 

20.05       Loan Terms: Any loan made to a Participant by the Trustee shall be evidenced by a promissory note of the Participant drawn in favor of the Trust. Such note shall bear a reasonable rate of interest and shall be amortized in level installments payable at least quarterly within a specified period of time not to exceed five (5) years, unless such loan is used to acquire a dwelling unit which, within a reasonable period of time (determined at the time the loan is made), will be used as the principal residence of the Participant or Beneficiary, in which case the specified period of time shall not exceed ten (10) years.

 

20.06       Accounting for Loans: Any loan to a Participant pursuant to this Article shall be treated as a directed investment of his/her Participant Accounts (excluding his/her Rollover Account and his/her Employer Securities Account). For purposes of allocating income in the General Investments Account of the Trust Fund pursuant to Section 6.03, the balance in his/her General Investments Account shall be treated as equal to the actual balance in the Accounts minus the outstanding balance of any loans. Furthermore, for purposes of Section 6.03, repayments of principal and interest on such loan shall be treated as deposits to the adjusted balance (determined pursuant to the preceding sentence) of his/her General Investments Account.

 

20.07       Effect of Termination of Employment or Plan: If a Participant terminates employment with the Employer for any reason, the outstanding balance of any loans made to him shall become fully payable no later than ninety (90) days following his/her Termination of Employment or, if earlier, on his/her Distribution Date. In the event of a termination of the Plan, any outstanding loans shall be due and fully payable within ninety (90) days of the effective date of such termination, or the date the Participant or Beneficiary is notified of such termination. If the Participant or Beneficiary has not fully repaid any loan as of the date full payment is due, any unpaid balance shall be deducted from his/her Vested Accrued Benefit prior to determining the amount of any immediate or deferred benefit payable to the Participant or Beneficiary, his/her spouse or his/her Beneficiary and applied toward repayment of the loan.

 

20.08        Spousal Consent: No loan shall be made to a Participant unless the Participant consents to the loan and acknowledges the possible reduction in Plan benefits that would occur in the event of default on the loan. No spousal consent shall be required for any loan as long as no portion of the Participant’s Accrued Benefit may be distributed from the Plan in the form of an annuity. If any portion of the Participant’s Accrued Benefit may be distributed in the form of an annuity, then no loan shall be made to that Participant unless the Participant and his/her spouse (if any) consent to such loan and acknowledge the possible reduction in Plan benefits that would occur in the event of default on the loan. Such consent and acknowledgment shall be provided in writing no earlier than ninety (90) days prior to the making of the loan and witnessed by the Plan Administrator (or representative thereof) or a notary public. In the event of the renegotiation, extension, renewal or other revision of the loan, a new spousal consent shall be required.

 

20.09       Anti-Alienation: Except as specifically provided in Sections 20.04 and 20.10, no benefit that shall be payable out of the Trust Fund to any person (including a Participant, Inactive Participant or Beneficiary) shall be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, or charge, and any attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber, or charge the same shall be void. No benefit shall in any manner be liable for or subject to the debts, contracts, liabilities, engagements, or torts of any person, nor shall it be subject to attachment or legal process for or against person, and the same shall not be recognized by the Trustee, except to such extent as may be required by law.

 

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20.10        Qualified Domestic Relations Orders: Section 20.09 shall apply to the creation, assignment, or recognition of a right to any benefit payable with respect to a Participant, Former Participant or Beneficiary pursuant to a Domestic Relations Order, unless such Domestic Relations Order is determined to be a Qualified Domestic Relations Order (“QDRO”). In the event the Plan, the Trustee, or the Plan Administrator receives a Domestic Relations Order, the Plan Administrator shall promptly notify the Participant, Former Participant or Beneficiary whose benefit is the subject of such order and provide him with a copy of the Plan’s written procedures for administering QDROs. Effective as of January 1, 2003, administration expenses incurred by the Plan with respect to the QDRO (including costs associated with review and determination of the order as a valid QDRO) may be chargeable to the individual Participant’s Account subject to the written policy established by the Plan Administrator. Unless and until the order is set aside, the following provisions shall apply:

 

 

 

 

 

 

 

 

 

 

ARTICLE XXI  MULTIPLE EMPLOYER PROVISIONS

 

21.01       Adoption by Other FX Employers: With the consent of the Plan Sponsor and by a properly executed document evidencing the intent and will of the adopting FX Employer, any other FX Employer may adopt this Plan and all of the provisions hereof and participate herein and be known as a Participating FX Employer.

 

 

 

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21.03        Designation of Agent: Each Participating FX Employer shall be deemed to be a part of this Plan. With respect to all of its relations with the Trustee and Plan Administrator for the purpose of this Plan, each Participating FX Employer shall be deemed to have designated irrevocably the Plan Sponsor as its agent. Unless the context of the Plan clearly indicates the contrary, the word “Employer” shall be deemed to include each Participating FX Employer as related to its adoption of the Plan.

 

21.04       Employee Transfers: It is anticipated that an Employee may be transferred between Participating FX Employers, and in the event of any transfer, the Employee involved shall carry with him all of his/her accumulated service and eligibility. No transfer shall effect a Termination of Employment hereunder, and the Participating FX Employer to which the Employee is transferred shall thereupon become obligated hereunder with respect to such Employee in the same manner as was the Participating FX Employer from whom the Employee was transferred.

 

21.05       Amendment: The Plan Sponsor may amend this Plan at any time without regard to whether there are Participating FX Employers hereunder. No written action of a Participating FX Employer shall be required to validate an amendment.

 

21.06        Discontinuance of Participation: A Participating FX Employer shall be permitted to discontinue or revoke its participation in the Plan. At the time of any discontinuance or revocation, satisfactory evidence thereof and of any applicable conditions imposed shall be delivered to the Trustee. If so directed by the Plan Administrator, the Trustee shall transfer, deliver and assign Contracts and other Fund assets allocable to the Participants of such Participating FX Employer to the new Trustee as shall have been designated by the Participating FX Employer, in the event that it has established a separate pension plan for its Employees. No such transfer shall be made if the result is the elimination or reduction of any Code §411(d)(6) protected benefits. If no successor is designated, the Trustee shall retain the assets for the Employees of the Participating FX Employer pursuant to the provisions of the Plan. In no event shall any part of the corpus or income of the Trust as it relates to the Participating FX Employer be used for or diverted for purposes other than for the exclusive benefit of the Employees of the Participating FX Employer.

 

21.07       Administrator’s Authority: The Plan Administrator shall have authority to make any and all necessary rules or regulations, binding upon all Participating FX Employers and all Participants, to effectuate the purposes of this Article.

 

21.08        Participating Employer Contributions: All contributions made by a Participating FX Employer, as provided for in this Plan, shall be determined separately for each Participating FX Employer, and shall be allocated only among Participants eligible to share who are Employees of the Participating FX Employer making the contribution. The Administrator shall keep separate books and records concerning the affairs of each Participating FX Employer hereunder and as to the accounts and credits of the Employees of each Participating FX Employer. The Trustee may, but need not, register participation agreements so as to evidence that a particular Participating FX Employer is an interested Employer hereunder. In the event of an Employee transfer from one Participating FX Employer to another, the Employers shall immediately notify the Administrator.

 

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ARTICLE XXII  REPURCHASE OF DISTRIBUTED EMPLOYER SECURITIES

 

22.01        Put option: The Employer may, in its discretion, issue a “put option” to a Participant in the event the Participant receives a distribution of Employer Securities from the Trust that are not readily tradeable on an established market. The put option will permit the Participant to sell the Employer Securities to the Employer, at any time during two option periods, at a price determined by the Employer under a fair valuation formula. The first put option period runs for a period of at least 60 days commencing on the date of distribution of Employer Securities to the Participant. The second put option period runs for a period of at least 60 days commencing after the new determination of the fair market value of Employer Securities by the Plan Administrator and notice to the Participant of the new fair market value. If a Participant (Beneficiary) exercises his/her put option, the Employer will purchase the Employer Securities at fair market value upon the terms provided under Section 22.04. The Employer may grant the Trust an option to assume the Employer’s rights and obligations at the time a Participant exercises an option under this Section 22.01. No provision of this Section 22.01 (or of the Plan) shall be interpreted to require the Plan or impose any obligation on the Plan to acquire securities from a particular securities holder at an indefinite time determined upon the happening of an event, such as the death of the holder.

 

22.02       Restriction on Employer Securities: Except upon the prior written consent of the Employer, no Participant (or Beneficiary) may sell, assign, give, pledge, encumber, transfer or otherwise dispose of any Employer Securities now owned or subsequently acquired by him without complying with the terms of this Article XXII. If a Participant (or Beneficiary) pledges or encumbers any Employer Securities without the required prior written consent, any security holder’s rights with respect to such Employer Securities are subordinate and subject to the rights of the Employer. All certificates for Employer Securities distributed pursuant to this Plan shall bear the following legend:

 

The shares represented by this certificate are transferable only upon compliance with the terms of the FX Energy, Inc. 401(k) Stock Bonus Plan, as amended effective January 1, 2004, which grants to FX Energy, Inc., a right of first refusal. A copy of the Plan is on file in the office of the Company.

 

22.03       Lifetime Transfer/Right of First Refusal: If any Participant (or Beneficiary) who receives Employer Securities under this Plan desires to dispose of any of his/her Employer Securities for any reason during his/her lifetime (whether by sale, assignment, gift or any other method of transfer), he first must offer the Employer Securities for sale to the Employer. The Plan Administrator may require a Participant (or Beneficiary) entitled to a distribution of Employer Securities to execute an appropriate stock transfer agreement (evidencing the right of first refusal) prior to receiving a certificate for Employer Securities.

 

In the case of an offer by a third party, the offer to the Employer is subject to all the terms and conditions set forth in Section 22.04, based on the price equal to the fair market value per share and payable in accordance with the terms of Section 22.04, unless the selling price and terms offered to the Participant by the third party are more favorable to the Participant than the selling price and terms of Section 22.04, in which event, the selling price and terms of the offer of the third party apply. The Employer must give written notice to the offering Participant of its acceptance of the Participant’s offer within fourteen (14) days after the Participant has given written notice to the Employer or the Employer’s rights under this Section 22.03 will lapse. The Employer may grant the Trust the option to assume the Employer’s rights and obligations with respect to all or any part of the Employer Securities offered to the Employer under this Section 22.03. The Trust is not under any obligation at any time to purchase Employer Securities from any holder of Employer Securities upon the happening of any event.

 

22.04        Payment of Purchase Price: If the Employer (or the Trustee), at the direction of the Plan Administrator exercises an option to purchase a Participant’s Employer Securities pursuant to an offer given under Section 22.03, the purchaser(s) must make payment in lump sum or, if the distribution to the Participant (or to his/her Beneficiary) constitutes a Total Distribution, in substantially equal installments over a period not exceeding five years, subject to the Participant’s election for a longer payment period than five years. A “Total Distribution” to a Participant (or to a Beneficiary) is the distribution, within one taxable year of the recipient, of the entire balance to the Participant’s credit under the Plan. In the case of a distribution that is not a Total Distribution or that is a Total Distribution with respect to which the purchaser(s) will make payment in lump sum, the purchaser(s) must pay the Participant (or Beneficiary) the fair market value of the Employer Securities repurchased no later than 30 days after the date the Participant (or Beneficiary) exercises the put option. In the case of a Total Distribution with respect to which the purchaser(s) will make installment payments, the purchaser(s) must make the first installment payment no later than 30

days after the Participant (or Beneficiary) exercises the put option. For installment amounts not paid within 30 days of the exercise of the put option, the purchaser(s) must evidence the balance of the purchase price by executing a promissory note, delivered to the selling Participant at the Closing. The note delivered at Closing must bear a reasonable rate of interest, determined as of the Closing Date, and the purchaser(s) must provide adequate security. The note must provide for equal annual installments with interest payable with each installment, the first installment being due and payable one year after the Closing Date. The note must further provide for acceleration in the event of 30 days’ default of the payment on interest or principal and must grant to the maker of the note the right to prepay the note in whole or in part at any time or times without penalty; provided however, the purchaser(s) may not have the right to make any prepayment during the calendar year or fiscal year of the Participant (Beneficiary) in which the Closing Date occurs.

 

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22.05        Notice: A person has given Notice permitted or required under this Article XXII when the person deposits the Notice in the United States mail, first class, postage prepaid, addressed to the person entitled to the Notice at the address currently listed for him in the records of the Advisory Committee. Any person affected by this Article XXII has the obligation of notifying the Plan Administrator of any change of address.

 

 

 

 

 

 

ARTICLE XXIII  MISCELLANEOUS

 

23.01        Participant’s Rights: This Plan shall not be deemed to constitute a contract between the Employer and any Participant or to be a consideration or an inducement for the employment of any Participant or Employee. Nothing contained in this Plan shall be deemed to give any Participant or Employee the right to be retained in the service of the Employer or to interfere with the right of the Employer to discharge any Participant or Employee at any time regardless of the effect that such discharge shall have upon him as a Participant of this Plan.

 

23.02       Actions Consistent with Terms of Plan: All actions taken by the Employer, Plan Administrator or Trustee with respect to Trust assets shall be in accordance with the terms of the Plan and Trust.

 

23.03        Performance of Duties: All parties to this Plan and Trust, or those claiming any interest hereunder, agree to perform any and all acts and execute any and all documents and papers that are necessary or desirable for carrying out this Plan and Trust or any of its provisions.

 

23.04       Validity of Plan: This Plan shall be construed in a way that is consistent with ERISA and regulations thereunder, the Internal Revenue Code and regulations thereunder, and, to the extent state law has not been preempted by federal law, the laws of the State in which the Plan Sponsor has its principal office. In case any provision of this Plan shall be held illegal or invalid for any reason, such determination shall not affect the remaining provisions of the Plan; but the Plan shall be construed and enforced as if such provision had never been included therein.

 

23.05       Legal Action: In the event any claim, suit, or proceeding is brought regarding the Trust and/or Plan established hereunder to which the Trustee or the Plan Administrator may be a party, and such claim, suit, or proceeding is resolved in favor of the Trustee or Plan Administrator, they shall be entitled to be reimbursed from the Trust Fund for any and all costs, attorney’s fees, and other expenses pertaining thereto incurred by them for which they shall have become liable.

 

23.06        Gender and Number: Wherever any words are used herein in the masculine, feminine or neuter gender, they shall be construed as though they were also used in another gender in all cases where they would so apply, and whenever any words are used herein in the singular or plural form, they shall be construed as though they were also used in the other form in all cases where they would so apply.

 

23.07       Uniformity: All provisions of this Plan shall be interpreted and applied in a uniform, nondiscriminatory manner.

 

23.08        Headings: The headings and subheadings of this Agreement have been inserted for convenience of reference and are to be ignored in any construction of the provisions hereof.

 

23.09       Receipt and Release for Payments: Any payment to any Participant, his/her legal representative, Beneficiary, or to any guardian or committee appointed for such Participant or Beneficiary in accordance with the provisions of this Agreement, shall, to the extent thereof, be in full satisfaction of all claims hereunder against the Trustee and the Employer, either of whom may require such Participant, legal representative, Beneficiary, guardian or committee, as a condition precedent to such payment, to execute a receipt and release thereof in such form as shall be determined by the Trustee or Employer.

 

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23.10        Payments to Minors, Incompetents: Effective for Plan Years commencing on or after January 1, 1995, in the event the Plan Administrator must direct a payment from the Plan to or for the benefit of any minor or incompetent Participant or Beneficiary, the Plan Administrator, in its sole and absolute discretion may, but need not, order the Trustee to make distribution to any of the following: a legal or natural guardian of the minor or other relative or adult with whom the minor temporarily or permanently resides, a court-appointed conservator of any incompetent, a relative or adult with whom the incompetent temporarily or permanently resides, a residential care facility, rest home, sanitarium or similar entity with which the incompetent temporarily or permanently resides, a person or entity that has applied for and been designated by the United States Government as the recipient or custodian for Social Security benefits for the minor or incompetent. The Plan Administrator may also make payment as directed by the attorney-in-fact of an incompetent Participant when such direction is pursuant to an unrevoked and valid durable power of attorney. Any guardian, conservator, relative, attorney-in-fact, other person or entity shall have full authority and discretion to expend the distribution for the use and benefit of the minor or incompetent. The receipt of the distribution by the guardian, conservator, relative, attorney-in-fact, other person or entity shall be a complete discharge to the Plan, Plan Administrator and Trustee, without any responsibility on the part of the Trustee or the Plan Administrator to see to the application thereof. A Participant shall be deemed incompetent if he or she is incapable of properly using, expending, investing, or otherwise disposing of the distribution, and a court order or the written opinion of a qualified physician, psychiatrist or psychologist setting forth facts consistent with the standards outlined in this Section is presented to the Plan Administrator.

 

23.11        Missing Persons: Notwithstanding any provision in this Plan and Trust to the contrary, if the Plan Administrator is unable to locate any Former Participant who is entitled to benefits under this Plan within three (3) years of the date he becomes entitled to a distribution from the Trust Fund, any amounts being held for his/her behalf shall be forfeited and used to reduce the Employer’s contributions to the Plan and Trust. The Plan Administrator shall proceed with due diligence in attempting to locate any Former Participant. In the Plan Administrator’s sole discretion, due diligence may include inquiry of any Beneficiary or Alternate Payee of the Former Participant whose names and addresses are known to the Plan Administrator or use by the Plan Administrator of a commercial locator service. Provided, however, no forfeiture shall occur until the Plan Administrator has mailed the Former Participant a notice of the benefits and the provisions of this section to his/her last known address, via U.S. Mail postage prepaid, return receipt requested. And, provided further, if the Former Participant is located subsequent to such forfeiture, the forfeited amount shall be reinstated and the Former Participant shall receive a distribution of his/her Vested Interest in accordance with the provisions of the Plan.

 

23.12        Transfer of Interest: Notwithstanding any other provision contained in this Plan, the Trustee at the direction of the Plan Administrator shall transfer the lump sum amount otherwise payable to a Participant or Inactive Participant to another trust forming part of a pension, profit sharing, or stock bonus plan maintained by such Participant’s new employer and represented by said employer in writing as meeting the requirements of Code §401(a) provided that the trust to which such transfers are made permits the transfer to be made.

 

23.13        Prohibition Against Diversion of Funds: It shall be impossible by operation of the Plan or of the Trust, by termination of either, by power of revocation or amendment, by the happening of any contingency, by collateral arrangement or by any other means, for any part of the corpus or income of any trust fund maintained pursuant to the Plan or any funds contributed thereto to be used for, or diverted to, purposes other than the exclusive benefit of Participants, Inactive Participants or their Beneficiaries, except as provided in Sections 17.04 and 21.19.

 

23.14        Period of the Trust: If it shall be determined that the applicable State law requires a limitation on the period during which this Trust shall continue, then such Trust shall not continue for a period longer than twenty-one (21) years following the death of the last of those Participants, including future Participants, who are living at the Effective Date hereof. At least one hundred eighty (180) days prior to the end of the twenty-first (21st) year as described in the first sentence of this Section, the Plan Sponsor, the Plan Administrator and the Trustee shall provide for the establishment of a successor Trust and transfer of Plan assets to the Trustee of such successor Trust. If applicable State law places no such limitation, then this Section shall not be operative.

 

23.15       Applicability of Plan: The provisions of this Plan shall apply only to persons who are or who become Participants in this Plan on or after the Effective Date or with respect to Plan provisions with alternate effective dates, such alternate dates. Except as specifically provided in this Plan, the provisions of the Prior Plan will continue to apply to persons who are Inactive Participants or who are not employed by an FX Employer on the Effective Date or as applicable, alternate effective dates, unless and until such time as such persons may again become Participants in this Plan.

 

23.16        Misstatement of Age: If a Participant or Beneficiary misstates or misrepresents his/her age, date of birth or any other material information to the Employer, Plan Administrator or Trustee, the amount, terms and conditions of any benefits payable from the Plan that are attributable to periods prior to the discovery of such misstatement or misrepresentation shall be limited to the lesser (or more restrictive) of: the amount, terms and conditions determined based on the misstated information; or the amount, terms and conditions determined based on the correct information. The Plan Administrator shall have sole and absolute authority for applying the preceding sentence.

 

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23.17       Return of Contributions to the Employer: Notwithstanding any provision of this Plan to the contrary, if any contribution (or portion thereof) by the Employer to the Trust is made as a result of a mistake of fact, or if any contribution (or part thereof) by the Employer to the Trust Fund that is conditioned upon the deductibility of the contribution by the Employer under the Code is disallowed, whether by agreement within the Internal Revenue Service or by final decision of a court of competent jurisdiction, the Employer may demand repayment of the mistaken or disallowed amount. The Trustee shall return the mistaken or disallowed contribution within one (1) year following the time the mistaken contribution was made or the disallowed contribution was disallowed. Investment earnings attributable to the mistaken or disallowed amount shall not be returned, but any investment losses attributable thereto shall reduce the amount so returned.

 

23.18        Correction of Incorrect Benefit Payments: In the event of a misstatement, computational error or other error in Plan records or administration, including a failure by the Plan to value correctly a Participant’s Account or any assets therein (including any Employer Securities) or to calculate or determine correctly costs or expenses attributable to a Participant’s Account, or in the event costs or expenses attributable to a Participant’s Account or assets therein are not incurred by the Plan prior to the date distribution of the Participant’s Account occurs, and as a result a Participant or Beneficiary is underpaid or overpaid, the Plan shall not be liable to the Participant or Beneficiary for any more than the correct benefit amount under the Plan.

 

Underpayment amounts may be corrected by the Plan by adding to future payments or by making a single one-time lump sum payment. Overpayment amounts may be deducted by the Plan from any future payments due from the Plan to the Participant or Beneficiary. In lieu of receiving reduced future payments a Participant or Beneficiary may make a lump sum payment to the Plan of any overpayment. In the event no future payments are owing or will be made, the Plan may require a lump sum repayment from the Participant or Beneficiary of the overpayment amount. Each Participant and Beneficiary in the Plan shall receive any distribution from the Plan, regardless of when paid, subject to the right of the Plan to obtain recovery of overpaid amounts as provided herein. The right of the Plan to establish the propriety of distributions from the Plan and/or obtain recovery shall be an equitable remedy and shall extend to all amounts distributed from the Plan, without regard to when the distribution occurs or may have previously occurred.

 

23.19        Counterparts: This Plan and Trust may be executed in any number of counterparts, each of which shall be deemed to be an original, and the counterparts shall constitute one and the same instrument.

 

IN WITNESS WHEREOF, the Plan Sponsor has caused this Plan to be executed by its duly authorized representative this 25th day of January, 2007.

 

PLAN SPONSOR:

FX Energy, Inc.

 

By: /s/ Scott J. Duncan

Its Secretary

 

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