EX-10.1 2 sonc-20130531ex101d3fe6b.htm EX-10.1 Exhibit 10.1

 

SONIC CORP. SAVINGS AND PROFIT SHARING PLAN

 

 

Restatement Effective January 1, 2013

 

 

 


 

TABLE OF CONTENTS

 

 

 

 

 

Page

ARTICLE I Definitions

1.1

Account Balance

1.2

Accounting Date

1.3

Administrator

1.4

Alternate Payee

1.5

Annual Additions

1.6

Beneficiary

1.7

Break in Service

1.8

Catch-Up Contributions

1.9

Code

1.10

Committee

1.11

Compensation

1.12

Corporate Eligible Employee

1.13

Disability

1.14

Distributee

1.15

Direct Rollover

1.16

Effective Date

1.17

Eligible Employee

1.18

Eligible Retirement Plan

1.19

Eligible Rollover Distribution

1.20

Employee

1.21

Employer

1.22

Employment Commencement Date

1.23

Entry Date

10 

1.24

ERISA

10 

1.25

Five Percent Owner

10 

1.26

Forfeiture

10 

1.27

Former Participant

10 

1.28

401(k) Ceiling

10 

1.29

Highly Compensated Employee

10 

1.30

Hour of Service

11 

1.31

Individual Accounts

11 

1.32

Leased Employee

12 

1.33

Limitation Year

12 

1.34

Matching Contributions

12 

1.35

Named Fiduciary

12 

1.36

Nonelective Contributions

12 

1.37

Nonforfeitable

12 

1.38

Non-Highly Compensated Employee

12 

1.39

Normal Retirement Age

12 

1.40

Normal Retirement Date

13 

1.41

Participant

13 

 

 


 

 

 

 

 

 

 

 

1.42

Period of Severance

13 

1.43

Plan

13 

1.44

Plan Sponsor

13 

1.45

Plan Year

13 

1.46

Predecessor Employer

13 

1.47

Profit Sharing Contributions

13 

1.48

Re-Employment Commencement Date

13 

1.49

Related Employer

14 

1.50

Required Beginning Date

14 

1.51

Rollover Contribution

14 

1.52

Salary Deferral Contributions

15 

1.53

Safe Harbor Matching Contributions

15 

1.54

Service

15 

1.55

Severance from Employment Date

15 

1.56

Sonic Stock

16 

1.57

Sonic Stock Fund

16 

1.58

Testing Compensation

16 

1.59

Top-Heavy Plan

16 

1.60

Trust Agreement

20 

1.61

Trust Fund

20 

1.62

Trustee

20 

1.63

Valuation Date

20 

1.64

Year of Service

21 

 

 

 

 

ARTICLE II   Eligibility and Participation

21 

2.1

Eligibility Conditions

21 

2.2

Participation Election

22 

2.3

Participant Re-Entry

22 

 

 

 

 

 

 

 

ARTICLE III  Contributions

22 

3.1

Salary Deferral Contributions

22 

3.2

Catch-Up Contributions

24 

3.3

Safe Harbor Safe Harbor Matching Contributions

24 

3.4

Profit Sharing Contributions

26 

3.5

Nonelective Contributions

26 

3.6

Rules Governing Deposits of Contributions

27 

3.7

Adjustment of Individual Accounts

27 

3.8

Participant Voluntary After Tax Contributions

28 

 

 


 

 

 

 

 

 

 

 

 

ARTICLE IV Allocation of Employer Contributions to Individual Accounts

28 

4.1

Allocation of Contributions

28 

4.2

Application of Forfeitures

28 

4.3

Limitations on Allocations Under Code Section 415

29 

4.4

Top-Heavy Allocations

30 

4.5

Post-Allocation Adjustments to Accounts

31 

 

 

 

 

 

 

 

 

 

 

ARTICLE V In-Service Distributions

32 

5.1

Withdrawal of Employer Contributions Before Severance From Employment

32 

5.2

Withdrawal of Salary Deferral Contributions Before Severance From Employment

32 

5.3

Hardship Distributions

33 

5.4

Qualified Reservist Distributions

34 

5.5

Reservist Severance Distributions

35 

 

 

 

 

 

 

 

ARTICLE VI Distributions After Severance From Employment

35 

6.1

Eligibility Due to Retirement, Death, or Disability

35 

6.2

Eligibility Due To Severance from Employment

36 

6.3

Vesting

36 

6.4

Forfeiture

37 

6.5

Determination of Amount of Vested Undistributed Account

37 

6.6

Payment of Benefits

38 

 

 

 

 

 

 

 

 

 

 

ARTICLE VII Mandatory Distribution of Benefits

 

39 

 

 

 

 

 

 

 

 

 

 

ARTICLE VIII Forms of Distribution

39 

8.1

Forms of Payment of Benefits

39 

8.2

Direct Rollover Benefit

40 

8.3

Election to Receive Benefits

41 

8.4

Minority or Disability

41 

8.5

Unclaimed Account Procedure

41 

 

 

 

 

 

 

 

 

ARTICLE IX Plan Sponsor and Employers

42 

9.1

Employer Action

42 

9.2

Plan Amendment

42 

9.3

Discontinuance, Termination of Plan

43 

9.4

Prohibition Against Reversion to Plan Sponsor or an Employer

44 

9.5

Adoption by Related Employers

44 

9.6

Authority of Administrator over Employers

47 

9.7

Deficiency of Earnings or Profits

47 

 

 


 

 

 

 

 

 

 

 

 

 

 

 

ARTICLE X Procedures for Qualified Domestic Relations Orders

47 

10.1

Introduction

47 

10.2

Administrator

48 

10.3

Notices

48 

10.4

Requests for Information for Drafting QDROs

48 

10.5

Notice of Pending Order

49 

10.6

Receipt of Order

49 

10.7

Requirements of a Qualified Order

50 

10.8

Participant’s Account During Determination Period

51 

10.9

Determination That Order Is Not a QDRO

51 

10.10

Determination That Order Is a QDRO

52 

 

 

 

 

 

 

 

ARTICLE XI The Committee

53 

11.1

Committee Appointment

53 

11.2

Committee Action and Procedure

53 

11.3

Committee Powers and Duties

54 

11.4

Committee Reliance

54 

11.5

Committee Authority

55 

11.6

Conflicts of Interest

55 

11.7

Appointment of Agent and Legal Counsel

55 

11.8

Annual Accounting

55 

11.9

Funding Policy

55 

 

 

 

 

 

 

 

ARTICLE XII Administration

55 

12.1

Administrator Appointment

55 

12.2

Copies of Additional Documents

56 

12.3

Documents Available for Examination

56 

12.4

Notice of Participant Rights under ERISA

56 

12.5

Notice to Participant on Participant Termination

56 

12.6

Notice to Trustee on Participant Termination

56 

12.7

Claims for Benefits

57 

12.8

Appeals of Decisions of the Committee

57 

12.9

Special Rules for Disability Claims

58 

 

 

 

 

 

 

 

ARTICLE XIII Investment of Trust Assets

59 

13.1

Appointment of Trustee

59 

13.2

Investment of Accounts

60 

13.3

Income and Expenses

61 

13.4

Exclusive Benefit

61 

13.5

Valuation

62 

13.6

Investment Policy

62 

 

 


 

 

 

 

 

 

 

 

 

 

 

 

ARTICLE XIV Participant Loans

63 

14.1

General

63 

14.2

Loan Policy

63 

14.3

Special Rules under USERRA for Loan Repayments

63 

 

 

 

 

 

 

 

 

 

 

ARTICLE XV Rollovers, Mergers, and Direct Transfers

63 

15.1

Participant Rollover Contributions

63 

15.2

Mergers and Direct Transfers

64 

15.3

Rules Concerning Certain Rollovers, Mergers, and Direct Transfers

65 

 

 

 

 

 

 

 

 

 

 

ARTICLE XVI Exclusive Benefit

65 

16.1

Exclusive Benefit

65 

16.2

Denial of Request for Approval

66 

16.3

Mistake of Fact

66 

16.4

Disallowance of Deduction

66 

16.5

Spendthrift Clause

66 

16.6

Termination

67 

 

 

 

 

 

 

 

ARTICLE XVII Construction

68 

17.1

Headings

68 

17.2

Context

68 

17.3

Employment Not Guaranteed

68 

17.4

Waiver of Notice

69 

17.5

State Law

69 

17.6

Parties Bound

69 

17.7

Severance

69 

17.8

Qualified Military Service

69 

 

 

 


 

 

Sonic Corp. Savings and Profit Sharing Plan

            Sonic Corp., a Delaware corporation (the “Plan Sponsor”), hereby adopts this restatement of the Sonic Corp. Savings and Profit Sharing Plan (this “Plan”), effective January 1, 2013, or as otherwise specified herein.

R E C I T A L S:

            WHEREAS, the Plan Sponsor has previously established the Plan for the exclusive benefit of its eligible Employees and their Beneficiaries and those of the Employers;

            WHEREAS, the Plan Sponsor recognizes the lasting contribution made by its Employees to its successful operation and wants to reward their contribution by continuing the Plan;

            WHEREAS, the Plan Sponsor wishes to amend and restate the existing Plan to incorporate the “safe harbor” requirements provided under Treasury Regulations section 1.401(k)-3 and Treasury Regulations section 1.401(m)-3 and to make certain other clarifying changes;

            WHEREAS, the provisions of this Plan, as amended and restated, will apply solely to an Employee who terminates employment with an Employer on or after the restated Effective Date of this Plan; and

            WHEREAS, if an Employee terminates employment with an Employer prior to the restated Effective Date, that Employee will be entitled to benefits under the Plan as the Plan existed on the Employee’s termination date.

            NOW, THEREFORE, considering the premises and their mutual covenants, the Plan Sponsor agrees as follows:

ARTICLE I

Definitions

 

The following terms used in this Plan will have the meanings set forth in this Article unless a different meaning is clearly indicated by the context:

1.1       Account Balance

The amount standing in a Participant’s Individual Account(s) as of any date derived from amounts contributed to the Plan under ARTICLE III.

1.2       Accounting Date

The date that is the last business day of each Plan Year or such other date as may be designated by the Administrator, but only if the Administrator has specifically requested the Trustee to prepare an accounting on or before such date. 

 

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1.3       Administrator

The Committee, unless the Plan Sponsor designates another person to hold the position of Administrator by written action. 

1.4      Alternate Payee

Any spouse, former spouse, child, or other dependent of a Participant who is recognized by a qualified domestic relations order, as defined in Code Section 414(p) as having a right to receive all, or a portion of, the benefits payable under this Plan with respect to such Participant.

1.5       Annual Additions

The sum of the following additions to a Participant’s Individual Accounts for the Limitation Year: (i) Employer contributions (including Salary Deferral Contributions, Safe Harbor Matching Contributions, Profit Sharing Contributions, and Nonelective Contributions); (ii) Participant contributions; and/or (iii) Forfeitures, if any.  For purposes of this definition, Annual Additions to other Employer defined contribution plans (also taken into account when applying the limitations in Section 4.3(a)) include any voluntary employee contributions to an account in a qualified defined benefit plan and any Employer contributions to an individual retirement account or annuity under Code Section 408 or to a medical account for a key employee under Code Sections 401(h) or 419A(d), except that the 25% of pay limit will not apply to Employer contributions to a key employee’s medical account after his or her separation from employment.

1.6       Beneficiary

(a)   Beneficiary means any person or fiduciary designated by a Participant or Former Participant who is or may become entitled to receive benefits under this Plan following the death of the Participant or Former Participant. A Beneficiary who becomes entitled to a benefit under this Plan will remain a Beneficiary under this Plan until the Trustee has fully distributed the benefits to the Beneficiary. A Beneficiary’s right to information or data concerning this Plan, and the respective duties of the Administrator and the Trustee to provide to the Beneficiary information or data concerning this Plan, will not arise until the Beneficiary first becomes entitled to receive a benefit under this Plan. For purposes of determining whether this Plan is a Top-Heavy Plan, a Beneficiary of a deceased Participant will be considered a key employee or a non-key employee in accordance with the applicable Treasury Regulations.

(b)   Each Participant and Former Participant may from time to time designate one or more Beneficiaries to receive benefits under this Plan on the death of the Participant or Former Participant. The selection will be made in writing on a form provided by the Administrator and will be filed with the Administrator. Subject to Subsection (c) below, the last selection filed with the Administrator will control.

 

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(c)   Unless elected in accordance with Subsection (d) below, a Participant’s Beneficiary will be his or her spouse. Notwithstanding the foregoing, the Participant may designate a Beneficiary other than his or her spouse if:

(i)        The Participant has no spouse; or

(ii)       The spouse cannot be located.

(d)   In the case of a married Participant or Former Participant, the designation of a non-spouse as Beneficiary will be valid only if:

(i)        The spouse consents in writing to the designation;

(ii)       The designation specifies the Beneficiary and the method of payment of benefits and may not be changed without spousal consent (or the spouse’s consent expressly permits designations by the Participant without any requirement of further spousal consent); and

(iii)      The spouse’s consent acknowledges the effect of the election and the written consent is witnessed by a Plan representative or by a notary public.

(e)   The spousal consent requirements of Subsection (d) do not apply if:

 

(i)        The Participant and spouse are not married throughout the one year period ending on the date of the Participant’s death;

(ii)       The Participant’s spouse is the Participant’s sole primary Beneficiary;

(iii)      The Administrator is not able to locate the Participant’s spouse;

(iv)      The Participant is legally separated or has been abandoned (within the meaning of State law) and the Participant has a court order to that effect; or

(v)       Other circumstances exist under which the Secretary of the Treasury will excuse the consent requirement.

If the Participant’s spouse is legally incompetent to give consent, the spouse’s legal guardian (even if the guardian is the Participant) may give consent.

(f)   If a Participant dies without a spouse or alternative Beneficiary surviving; if the alternative Beneficiary (other than the spouse) does not survive until final distribution of the Participant’s balance; if a Participant who is not married dies without having designated a Beneficiary and/or alternative Beneficiary; or if a Participant who is not married dies after having made and revoked a designation but prior to having made a subsequent designation, then the amount remaining in the deceased Participant’s Individual Account will be payable in the following descending order to:

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(i)        The Participant’s surviving descendants, including adopted persons and their descendants;

(ii)       The Participant’s other living heirs-at-law determined under state laws concerning intestate succession; and

(iii)      The Participant’s estate.

 

The Administrator will determine the applicable person, class of persons, or legal entity to whom the benefit will be paid beginning with clause (i), in the descending order of clauses (i) to (iii). Each class will be determined to be not in existence and, therefore, inapplicable by the Administrator before proceeding to the next class. In determining if a classification is inapplicable, the Administrator will be required only to make reasonable inquiry into the existence of the person or persons.

 

(g)   Payment made pursuant to the power conferred on the Administrator in this Section will operate as a complete discharge of all obligations under this Plan concerning the share of a deceased Participant and will not be subject to review by anyone but will be final, binding and conclusive on all persons for all purposes.

 

(h)   If a married Participant designates the Participant’s spouse as the Participant’s Beneficiary, and subsequent to such designation the Participant and the Participant’s spouse are divorced, such designation shall automatically be voided.  In this instance the Participant’s Beneficiary shall be the contingent or successive Beneficiary designated pursuant to this Section 1.6, or if no such designation has been made, the Beneficiary determined under Section 1.6(f).  Should the Participant wish to designate an ex-spouse as his Beneficiary, he or she must affirmatively do so by completing a new Beneficiary designation form after his or her divorce, naming his or her ex-spouse as the Beneficiary.

 

1.7       Break in Service

(a)   A  Break in Service, for purposes of vesting, means a Period of Severance of 365 days.

 

(b)   An Employee will receive credit, for purposes of determining whether he has incurred a Break in Service, for the aggregate of all time period(s) commencing with the Employment Commencement Date (or Re-Employment Commencement Date) and ending on the Severance from Employment Date. An Employee will also receive credit for any Period of Severance of less than 365 days. Fractional periods of a year will be expressed in terms of days.

 

(c)   In the case of an Employee who is absent from work for “authorized reasons” or for “maternity or paternity reasons,” the 365-day period beginning on the first anniversary of the first day of such absence will not be a Break in Service.

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(i)        For purposes of this Section, absence from work for “authorized reasons” means an unpaid temporary cessation from active employment with the Employer pursuant to an established nondiscriminatory policy, whether occasioned by illness, military service, or any other reason.

 

(ii)       For purposes of this Section, absence from work for “maternity or paternity reasons” means an absence from work for any period because of the pregnancy of the individual, the birth of a child of the individual, the placement of a child with the individual relating to the adoption of such child by such individual, or for the purpose of caring for such child for a period beginning immediately following such birth or placement. In the case of absence from work for “maternity or paternity reasons,” the period between the first and second anniversaries of the first date of absence due to said leave will be treated as neither a period of Service nor a Period of Severance.

 

1.8       Catch-Up Contributions

Catch-Up Contributions are amounts contributed by a Participant pursuant to Section 3.2 and allocated to a Participant’s Salary Deferral Contribution Account.

 

1.9       Code

 

The Internal Revenue Code of 1986, as amended from time to time. A reference to a Code Section in this Plan means the provisions or successor provisions of the particular Code Section, as amended or replaced from time to time.

 

1.10     Committee

 

The committee as from time to time constituted pursuant to ARITCLE XI.

 

1.11     Compensation

 

Compensation will include the total amount of salary, wages, commissions, bonuses, and overtime, paid or otherwise includable in the gross income of a Participant during the Plan Year plus any amounts excluded from a Participant’s income pursuant to Code Sections 125, 132(f)(4), or 401(k), but excluding:

 

(a)   Contributions by the Employer and any Related Employer to any deferred compensation plan (to the extent the contributions are not included in the Participant’s gross income for the taxable year in which contributed) or simplified employee pension under Code Section 408(k), to the extent the contributions are excludable from the Participant’s gross income (other than amounts excluded from a Participant’s income pursuant to Code Sections 125, 132(f)(4), or 401(k));

 

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(b)   Distributions from any plan of deferred compensation, whether or not such amounts are includable in the gross income of the Employees when distributed;

 

(c)   Amounts realized from the exercise of any nonqualified stock option, or when restricted stock becomes freely transferable or is no longer subject to a substantial risk of forfeiture;

 

(d)   Amounts realized from the sale, exchange, or other disposition of stock acquired under a qualified stock option described in Part II, Subchapter D, Chapter 1 of the Code;

 

(e)   Premiums paid by the Employer and any Related Employer, for group term life insurance (to the extent the premiums are includable in the Participant’s gross income) and any other amounts received under any Employer fringe benefit plan sponsored by the Employer or any Related Employer (to the extent not includable in the Participant’s gross income);

 

(f)   Severance pay, unfunded nonqualified deferred compensation, or parachute payments, if paid after his Severance from Employment Date, even if paid within two and one half (2½) months thereafter;

 

(g)   Amounts paid or reimbursed by the Employer for moving expenses or relocation expenses incurred by an Employee;

 

(h)   Reimbursements and other expense allowances under a nonaccountable Plan as described in Treasury Regulations Section 1.62-2(c);

 

(i)   Amounts treated as imputed income due to the Employee’s coverage of a dependent who does not qualify as the Employee’s tax dependent under any welfare benefit Plan maintained by the Employer or a Related Employer; and

 

(j)   Amounts paid by the Employer and designated as “Holiday Mint,” “Surprise and Delight,” “Company Picnic” and “Employee of the Month.”

 

Compensation shall not include amounts that would otherwise satisfy the definition of Compensation but are paid during the determination period while the Employee is not a Participant in the Plan.

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In addition to other applicable imitations set forth in this Plan, and notwithstanding any other provision of this Plan to the contrary, the Compensation of each Participant taken into account under this Plan shall not exceed $250,000 for the 2012 Plan Year and such compensation limit shall be adjusted by the Commissioner for increases in the cost of living in accordance with Code section 401(a)(17)(B).  The cost-of-living adjustment in effect for a calendar year applies to any period, not exceeding 12 months, over which Compensation is determined (determination period) beginning in such calendar year.  If a determination period consists of fewer than 12 months, the annual compensation limit shall be multiplied by a fraction, the numerator of which is the number of months in the determination period, and the denominator of which is 12.

1.12     Corporate Eligible Employee

A Corporate Eligible Employee is an Eligible Employee who is employed by an Employer and is not: (i) designated on the books and records of an Employer as being employed at the Officer level, Director level, or Manager level; or (ii) a Multi-Unit Partner, Market Leader, Co-Manager or Operating Partner.

1.13     Disability

The inability to engage in any substantial, gainful activity because of any medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve (12) months.

1.14     Distributee

A Distributee includes an Employee or former Employee. In addition, the Employee’s or former Employee’s surviving spouse and the Employee’s or former Employee’s spouse or former spouse who is the Alternate Payee under a qualified domestic relations order, as defined in Code Section 414(p) are Distributees with regard to the interest of the spouse or former spouse.

1.15     Direct Rollover

A Direct Rollover is a payment by this Plan to the Eligible Retirement Plan specified by the Distributee.

1.16     Effective Date

The original Effective Date of this Plan is January 1, 1978. The Effective Date of this Plan, as restated herein, is January 1, 2013, or as otherwise specified herein.

1.17     Eligible Employee

Each Employee other than:

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(a)   An Employee whose terms and conditions of employment are governed by a collective bargaining agreement, unless such agreement provides for coverage under this Plan;

(b)   A nonresident alien who receives no earned income from the Employer that constitutes income from sources within the United States;

(c)   A Leased Employee;

(d)   An individual who is deemed to be an Employee pursuant to Treasury Regulations   issued under Code Section 414(o);

(e)   An Employee who has waived participation in this Plan through any means, including, but not limited to, through a written agreement with the Employer (including an offer letter setting forth the terms and conditions of employment) that provides that the Employee is not eligible to participate in this Plan. (A general statement in the agreement, offer letter, or other communication stating that the Employee is not eligible for benefits will be construed to mean that Employee is not an Eligible Employee);

(f)   A special project employee, which, as used herein, means an Employee who is hired for the purpose of participating or otherwise assisting in a particular, discrete project which is anticipated to be completed in less than one (1) year; and

(g)   In the event that an individual is misclassified as anything other than an Employee and, as a result, is denied eligibility into this Plan, any reclassification of such individual as an Employee (by a court, administrative agency, or otherwise) shall only be effective for purposes of this Plan from the date of such determination (notwithstanding any retroactive classification of such individual as an Employee for any other purpose under the Code).

1.18     Eligible Retirement Plan

An Eligible Retirement Plan will mean one of the following plans or arrangements, provided such plan or arrangement accepts the Distributee’s Eligible Rollover Distribution:

(a)   An individual retirement account described in Code Section 408(a) or 408A(b);

(b)   An individual retirement annuity plan described in Code Section 408(b);

(c)   An annuity plan described Code Section 403(a);

(d)   A qualified trust described in Code Section 401(a);

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

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(f)   An eligible plan under Code Section 457(b) that is maintained by a state, political subdivision of a state, or any agency or instrumentality of a state or political subdivision of a state and that agrees to separately account for amounts transferred into such plan from this Plan.

The definition of Eligible Retirement Plan will 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 Section 414(p).

1.19    Eligible Rollover Distribution

An Eligible Rollover Distribution is any distribution of all or any portion of the balance to the credit of the Distributee, except that an Eligible Rollover Distribution does not include: any distribution that is one of a series of substantially equal periodic payments (not less frequently than annually) made for the life (or life expectancy) of the Distributee or the joint lives (or joint life expectancies) of the Distributee and the Distributee’s Beneficiary, or for a specified period of ten years or more; any distribution to the extent such distribution is required under Code Section 401(a)(9), the portion of any distribution that is not includable in gross income (determined without regard to the exclusion for net unrealized appreciation with respect to employer securities) and any distribution made on account of hardship pursuant to Section 5.3 hereof.

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

1.20    Employee

An Employee includes any individual who is reported on the payroll records of an Employer as a common law employee. This term does not include any other common law employee or any Leased Employee.

1.21     Employer

The Plan Sponsor and any entity that is related to the Plan Sponsor, or that is a recipient of the services of a Leased Employee pursuant to a written agreement with the Plan Sponsor, and who elects to adopt this Plan pursuant to ARTICLE IX.  The sole Employers are:  Sonic Corp., Sonic Industries Services Inc., and Sonic Restaurants, Inc.

1.22     Employment Commencement Date

The date on which an Employee is first entitled to credit for an Hour of Service.

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1.23     Entry Date

An Eligible Employee’s Entry Date is the first day of the calendar quarter (January 1st, April 1st, July 1st and October 1st) next following the date on which the Eligible Employee, satisfies the eligibility criteria set forth in Section 2.1.

1.24     ERISA

The Employee Retirement Income Security Act of 1974, as amended.  A reference to an ERISA Section in this Plan means the provisions or successor provisions of the particular ERISA Section, as amended or replaced from time to time.

1.25     Five Percent Owner

A Participant who owns, or is considered as owning within the meaning of Code Section 318, more than five percent of the outstanding stock of the Employer or stock possessing more than five percent of the total combined voting power of all stock of the Employer; or in the case of an unincorporated business, any person who owns more than five percent of the capital or profits interest in the Employer.

1.26     Forfeiture

The loss, by a Participant or Beneficiary, of that part of the benefit that the Participant or Beneficiary otherwise would have received under this Plan at any time prior to the termination of this Plan or the complete discontinuance of benefits under this Plan, arising from the Participant’s severance of employment.

1.27     Former Participant

Any individual who (i) has been a Participant in this Plan, but who is either no longer employed by the Employer or is otherwise no longer eligible to participate; and (ii) has not yet received the entire benefit to which the individual is entitled under this Plan or incurred a five year Break in Service.

1.28     401(k) Ceiling

The 401(k) Ceiling is $17,000 (or such larger amount as may be determined by the Secretary of the Treasury for purposes of Code Section 402(g)(1) pursuant to Code Section 402(g)(4)) for Plan Years.

1.29     Highly Compensated Employee

Any Participant or Former Participant who is a Highly Compensated Employee as defined in Code Section 414(q). Generally, any Participant or Former Participant is considered a Highly Compensated Employee if:

(a)   At any time during the Plan Year or during the preceding Plan Year a Five Percent Owner; or

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(b)   For the preceding Plan Year (i) had Testing Compensation from the Employer in excess of $110,000, as adjusted by the Secretary of the Treasury for the relevant year, and (ii) if elected, was part of the top-paid 20% group of Employees (based on Testing Compensation for the preceding Plan Year).

1.30     Hour of Service

An Hour of Service is each hour for which an Employee is paid, or entitled to payment, for the performance of duties for the Employer during the applicable computation period.

1.31     Individual Accounts

Accounts or records maintained by the Administrator or its agent indicating the monetary value of the total interest in the Trust Fund of each Participant, each Former Participant, and each Beneficiary. The types of Individual Accounts under this Plan are:

(a)   Accounts established to account for Employer contributions made on behalf of an Employee, including:

(i)        Matching Contribution Accounts holding all Matching Contributions made prior to January 1, 2013 to this Plan and any earnings thereon.

(ii)       Safe Harbor Matching Contribution Accounts holding all Safe Harbor Matching Contributions made after January 1, 2013 to this Plan pursuant to Section 3.3 and any earnings thereon.

(iii)      Profit Sharing Contribution Accounts holding contributions made to this Plan pursuant to Section 3.4 for the benefit of an Employee that the Employee could not have elected to receive in the form of cash or other taxable benefit, if any.

(iv)      Nonelective Contribution Accounts holding contributions made to this Plan pursuant to Section 3.5 for the benefit of a Participant who is a Corporate Eligible Employee that the Corporate Eligible Employee could not have elected to receive in the form of cash or other taxable benefit, if any.

(b)   Accounts established to account for Employee contributions, including:

(i)     Rollover Accounts holding the Participant’s qualified rollover to this Plan pursuant to ARTICLE XV.

(ii)    Salary Deferral Contribution Accounts holding the amounts contributed by the Employer on behalf of a Participant as the result of an election by the Participant to have that amount contributed to this Plan rather than paid as cash or other taxable benefit pursuant to Sections 3.1 (Salary Deferral Contributions) and 3.2 (Catch-Up Contributions).

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1.32    Leased Employee

An individual who otherwise is not an Employee of the Employer, and who, pursuant to a leasing agreement between the Employer and a leasing organization, has performed services for the Employer (or for the Employer and any persons related to the Employer within the meaning of Code Section 414(n)(6)) on a substantially full time basis for at least one (1) year (unless such individual is otherwise earlier considered a Leased Employee treated as an Employee of the Employer pursuant to the eligibility conditions elected by an Employer) and such services are performed under the primary direction or control of the Employer.

1.33    Limitation Year

The Plan Year, as such term is defined in this ARTICLE I.

1.34    Matching Contributions

Matching Contributions are those contributions made to this Plan prior to January 1, 2013 for the benefit of a Participant and based upon the Salary Deferral Contributions made to the Plan by such Participant and allocated to a Participant’s Matching Contribution Account.

1.35     Named Fiduciary

One or more fiduciaries named in this Plan who jointly and severally will have authority to control or manage the operation and administration of this Plan. The Administrator will be the Named Fiduciary unless the Plan Sponsor designates another person by written action.

1.36     Nonelective Contributions

Nonelective Contributions are amounts (if any) contributed by an Employer pursuant to Section 3.5 and allocated to a Participant’s Nonelective Contribution Account.

1.37    Nonforfeitable

A vested interest attained by a Participant or Beneficiary in that part of the Participant’s benefit under this Plan arising from the Participant’s Service, which claim is unconditional and legally enforceable against this Plan.

1.38    Non-Highly Compensated Employee

An Employee, former Employee, or Beneficiary who is not a Highly Compensated Employee.

1.39     Normal Retirement Age

The date the Participant attains age sixty-five (65).

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1.40     Normal Retirement Date

The first day of the month coincident with or next following the date the Participant attains Normal Retirement Age.

1.41    Participant

An Eligible Employee of the Employer who has met the eligibility requirements of this Plan and who has been enrolled as a Participant in this Plan.

1.42    Period of Severance

The period of time commencing on the Severance from Employment Date and ending on the Re-Employment Commencement Date.

1.43     Plan

The qualified retirement plan embodied in this Plan, as amended from time to time, designated as the Sonic Corp. Savings and Profit Sharing Plan.

1.44     Plan Sponsor

Sonic Corp., and any successor corporation or business organization that may be substituted for the Plan Sponsor under this Plan. 

1.45     Plan Year

The twelve (12) consecutive month period from January 1 of each year to the next following December 31.

1.46    Predecessor Employer

A business organization, all or a portion of whose assets and business has been acquired by the Employer, whether by merger, stock purchase, or acquisition of the assets and business of the business organization.

1.47     Profit Sharing Contributions

Profit Sharing Contributions are amounts (if any) contributed by an Employer pursuant to Section 3.4 and allocated to a Participant’s Profit Sharing Contribution Account.

1.48     Re-Employment Commencement Date

The first date, following a Period of Severance that is not required to be considered under the Service rules, on which the Employee performs an Hour of Service for the Employer.

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1.49    Related Employer

A related group of employers is a controlled group of corporations (defined in Code Section 414(b)), trades or businesses (whether or not incorporated) that are under common control (defined in Code Section 414(c)) or an affiliated service group (defined in Code Section 414(m) or in Code Section 414(o)). If the Employer is a member of a related group, the term “Employer” includes the related group members for purposes of determining Service and Breaks in Service under ARTICLE II and ARTICLE VI, applying the coverage test of Code Section 410(b), applying the limitations on allocations in ARTICLE IV, applying the top-heavy rules and the minimum allocation requirements of ARTICLE IV, the definitions of Employee, Highly Compensated Employee, Testing Compensation, and Leased Employee, and for any other purpose required by the applicable Code Section or by a Plan provision. However, a Related Employer may contribute to this Plan only by being an Employer under this Plan. If one or more of the Plan Sponsor’s related group members become Employers, the term “Employer” includes the participating related group members for all purposes of this Plan. For Plan allocation purposes, Compensation does not include Compensation received from a Related Employer that is not participating in this Plan.

1.50     Required Beginning Date

(a)   For a Participant who is a Five Percent Owner, the Required Beginning Date will commence on the first day of April following the later of:

(i)        The calendar year in which the Participant attains age seventy and one-half (70½) years; or

(ii)       The earlier of the calendar year with or within which ends during the Plan Year in which the Participant becomes a Five Percent Owner, or the calendar year in which the Participant retires.

(b)   For a Participant who is not a Five Percent Owner, the Required Beginning Date is the first day of April of the calendar year immediately following the later of:

(i)        The calendar year in which the Participant attains age seventy and one-half (70½); or

(ii)      The calendar year in which the Participant terminates employment with the Employer.

1.51    Rollover Contribution

A direct rollover of an eligible rollover distribution from:  (i) a qualified plan described in Code Section 401(a) or 403(a), excluding after-tax employee contributions; (ii) an annuity contract described in Code Section 403(b), excluding after-tax employee contributions; (iii) an eligible plan under Code Section 457(b) that is maintained by a state, political subdivision of a state, or any agency or instrumentality of a state or political subdivision of a state; and (iv) portion of a distribution from an individual

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retirement account or annuity described in Code Section 408(a) or 408(b) that is eligible to be rolled over and would otherwise be includible in gross income.

1.52    Salary Deferral Contributions

Salary Deferral Contributions are those contributions made to this Plan on a pre-tax basis pursuant to a salary reduction agreement entered into by a Participant.  Salary Deferral Contributions are allocated to a Participant’s Salary Deferral Contribution Account.

1.53    Safe Harbor Matching Contributions

Safe Harbor Matching Contributions are those contributions made to this Plan on or after January 1, 2013 for the benefit of a Participant, based upon the Salary Deferral Contributions made to the Plan by such Participant, and intended to satisfy the safe harbor requirements of provided for under Treasury Regulations section 1.401(k)-3 and Treasury Regulations section 1.401(m)-3.  Safe Harbor Matching Contributions shall be allocated to a Participant’s Safe Harbor Matching Contribution Account. 

1.54    Service

Service includes any period of time commencing on the Employee’s Employment Commencement Date (or Re-Employment Commencement Date) and ending on the Employee’s Severance from Employment Date. Service will be determined using the elapsed time method as defined in Treasury Regulation Section 1.410(a)-7.

(a)   Service in all cases includes periods during which the Employee is on a leave of absence for “authorized reasons” or for “maternity or paternity reasons” pursuant to the definition of Break in Service. Leaves of absence also will include periods of absence in connection with military service during which the Employee’s re-employment rights are legally protected. Except for absence by reason of military service, leaves of absence will be for a maximum period of two (2) years. Leaves of absence will be granted on a uniform and nondiscriminatory basis.

(b)   If the Employer is a member of a group of Related Employers, then Year of Service will include Service with any Related Employer for the period during which such Employers are related. If the Employer maintains the plan of a Predecessor Employer, Service will include service for the Predecessor Employer. Service will include service of the Employee with any Predecessor Employer, as required under Treasury Regulation Section 1.411(a)-5(b)(3)(iv).

(c)   Years of Service will include military service required to be counted for vesting purposes under Section 17.8.

1.55     Severance from Employment Date

The date on which occurs the earlier of:  (i) the Employee quits, retires, is discharged, or dies; or (ii) the first anniversary of the first date of a period in which an Employee

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remains absent from Service, with or without pay, with the Employer for any other reason, such as vacation, holiday, sickness, Disability, leave of absence or layoff.

1.56    Sonic Stock

Voting common stock of Sonic Corp., a Delaware corporation, provided, such stock must meet the requirements of Code Section 409(l).  Sonic Stock is currently traded on the over-the-counter market with price quotations reported on the NASDAQ National Market System under the symbol “SONC.”

1.57     Sonic Stock Fund

The investment fund which is invested solely in Sonic Stock.  Any dividends on Sonic Stock in this fund will also be invested in Sonic Stock.  Sonic Stock will be purchased on the open market and will be registered under the Securities Exchange Act of 1934.

1.58     Testing Compensation

Compensation that would be stated on an Employee’s Form W-2, “Wage and Tax Statement,” for the calendar year that ends with or within the Plan Year and includes amounts that would have been included on the Employee’s Form W-2 but for an election under Code Sections 125, 132(f)(4), 402(e)(3), 402(h)(1)(B), 402(k), or 457(b).

In addition to other applicable limitations set forth in this Plan, and notwithstanding any other provision of this Plan to the contrary, the Compensation of each Participant taken into account under this Plan shall not exceed $250,000 for the 2012 Plan Year and such compensation limit shall be adjusted by the Commissioner for increases in the cost of living in accordance with Code section 401(a)(17)(B).  The cost-of-living adjustment in effect for a calendar year applies to any period, not exceeding 12 months, over which Compensation is determined (determination period) beginning in such calendar year.  If a determination period consists of fewer than 12 months, the annual compensation limit shall be multiplied by a fraction, the numerator of which is the number of months in the determination period, and the denominator of which is 12.

Notwithstanding any provision of this Plan to the contrary, a Participant’s Compensation shall include any military differential pay paid to the Participant by the Employer or any Related Employer with respect to any period of active military service in the uniformed services in the United States of more than 30 days and this Plan will not be treated as failing to meet the requirements of any provision described in Code Section 414(u)(1)(C) by reason of any contribution or benefit which is based on such military differential pay.

1.59     Top-Heavy Plan 

For purposes of determining Top-Heavy Plan status, each Employer and its Related Employers will be deemed to maintain a separate plan. Related Employers will be considered a single employer for purposes of applying the limitations of this Section. However, Employers who are not Related Employers, but receive services of Employees

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of the Employer under an employee leasing arrangement will be treated as separate employers for purposes of these top-heavy rules.

A Plan will be a Top-Heavy Plan in any Plan Year in which, as of the Determination Date, (i) the Present Value of Accrued Benefits of Key Employees, or (ii) the sum of the Aggregate Accounts of Key Employees of any plan of an Aggregation Group, exceeds 60% of the Present Value of Accrued Benefits or Aggregate Accounts of all Participants under this Plan and any plan of an Aggregation Group.

If any Participant is a Non-Key Employee for any Plan Year, but the Participant was a Key Employee for any prior Plan Year, the Participant’s Aggregate Account balance will not be taken into account in determining whether this Plan is a Top-Heavy Plan (or whether any Aggregation Group that includes this Plan is a Top-Heavy Group) as further defined in Code Section 416(g) and the applicable Treasury Regulations.

For purposes of determining Top-Heavy Plan status, the following definitions will apply:

(a)   Aggregate Account means, as of the Determination Date, the sum of:

(i)        The Participants’ Account Balances as of the most recent Valuation Date occurring within a 12 month period ending on the Determination Date;

(ii)       The contributions that would be allocated as of a date not later than the Determination Date, even though those amounts are not yet made or required to be made;

(iii)      Any Plan distributions made during the Determination Period (however, in the case of distributions made after the Valuation Date and prior to the Determination Date, such distributions are not included as distributions for Top-Heavy purposes to the extent that the distributions are already included in the Participant’s Aggregate Account balance as of the Valuation Date);

(iv)      Any Employee contributions, whether voluntary or mandatory;

(v)       Regarding unrelated rollovers and plan-to-plan transfers (those that are (i) initiated by the Employee and (ii) made from a plan maintained by one employer to a plan maintained by another employer), if this Plan provides for rollovers or plan-to-plan transfers, an unrelated rollover or plan-to-plan transfer will be considered as a distribution for purposes of this Section. If this Plan is the plan accepting an unrelated rollover or plan-to-plan transfer, an unrelated rollover or plan-to-plan will not be considered as part of the Participant’s Aggregate Account balance;

(vi)      Regarding related rollovers and plan-to-plan transfers (those either (i) not initiated by the Employee or (ii) made to a plan maintained by the same Employer), if this Plan provides for rollovers or plan-to-plan transfers, a related rollover or plan-to-plan transfer will be considered as a distribution

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for purposes of this Section. If this Plan is the plan accepting a related rollover or plan-to-plan transfer, a related rollover or plan-to-plan transfer will be considered as part of the Participant’s Aggregate Account balance, irrespective of the date on which the related rollover or plan-to-plan transfer is accepted; and

(vii)     The accounts of Participants who are Leased Employees, for purposes of these top-heavy rules, will be treated as being maintained under a separate plan by each respective Employer.

(b)   Aggregation Group means either a Required Aggregation Group or a Permissive Aggregation Group as hereinafter determined.

(i)        Required Aggregation Group means the group of plans composed of (i) each plan of the Employer in which a Key Employee is a Participant or participated at any time during the Determination Period, regardless of whether the plan has terminated; and (ii) each other plan of the Employer that enables any plan in which a Key Employee participates to meet the requirements of Code Sections 401(a)(4) or 410, which will be aggregated.

In the case of a Required Aggregation Group, each plan in the group will be considered a Top-Heavy Plan if the Required Aggregation Group is a Top-Heavy Group. No plan in the Required Aggregation Group will be considered a Top-Heavy Plan if the Required Aggregation Group is not a Top-Heavy Group.

(ii)       Permissive Aggregation Group means the Required Aggregation Group plus any other plan not required to be included in the Required Aggregation Group, provided the resulting group, taken as a whole, would continue to satisfy Code Sections 401(a)(4) and 410.

In the case of a Permissive Aggregation Group, only a plan that is part of the Required Aggregation Group will be considered a Top-Heavy Plan if the Permissive Aggregation Group is a Top-Heavy Group. No plan in the Permissive Aggregation Group will be considered a Top-Heavy Plan if the Permissive Aggregation Group is not a Top-Heavy Group.

(iii)      Only those plans of the Employer in which the Determination Dates fall within the same calendar year will be aggregated to determine whether the plans are Top-Heavy Plans.

(c)   Determination Date means for any Plan Year (i) the last day of the preceding Plan Year, or (ii) in the case of the first Plan Year of this Plan, the last day of the first Plan Year.

(d)   Determination Period means the five year period ending on the Determination Date.

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(e)   Excluded Employees means any Employee who has not performed any Service for the Employer during the five year period ending on the Determination Date. Excluded Employees will be excluded for purposes of a Top-Heavy determination.

(f)   Key Employee means any Employee or former Employee, or Beneficiary of the Employee, who, for any Plan Year in the Determination Period is:

(i)        An officer of the Employer having Testing Compensation greater than $130,000 (as adjusted under Code Section 416(i)(1));

(ii)       A Five Percent Owner; or

(iii)      A one percent owner of the Employer having Testing Compensation of more than $150,000.

Notwithstanding the foregoing, Key Employee will have the meaning set forth in Code Section 416(i), as amended. For purposes of determining whether an Employee or former Employee is an officer under this Subsection (f), an officer of the Employer will have the meaning set forth in the regulations under Code Section 416(i).

(g)   Non-Key Employee means any Employee or former Employee, or Beneficiary of the Employee, who is not a Key Employee.

(h)   Present Value of Accrued Benefit. Solely for the purpose of determining if this Plan, or any other plan included in a Required Aggregation Group of which this Plan is a part, is a Top-Heavy Plan, the Accrued Benefit of a Non-Key Employee will be determined under (i) the method, if any, that uniformly applies for accrual purposes under all plans maintained by the Related Employers, or (ii) if there is no uniform method, in accordance with the slowest accrual rate permitted under the fractional accrual method described in Code Section 411(b)(1)(C). To calculate the Present Value of Accrued Benefits from a defined benefit plan, the Administrator will use the actuarial assumptions for interest and mortality only, prescribed by the defined benefit plan(s) to value benefits for top-heavy purposes. If an aggregated plan does not have a valuation date coinciding with the Determination Date, the Administrator must value the Accrued Benefits in the aggregated plan as of the most recent valuation date falling within the 12 month period ending on the Determination Date, except as Code Section 416 and applicable Treasury Regulations require for the first and second plan year of a defined benefit plan. The Administrator will determine whether a plan is top-heavy by referring to Determination Dates that fall within the same calendar year.

For purposes of determining the Present Values of Accrued Benefits and the amounts of Account Balances of Employees as of the Determination Date, the following will apply.

(i)        Distributions During Year Ending on the Determination Date. The Present Values of Accrued Benefits and the amounts of Account Balances of an

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Employee as of the Determination Date will be increased by the distributions made with respect to the Employee under this Plan and any Plan aggregated with this Plan under Code Section 416(g)(2) during the one-year period ending on the Determination Date. The preceding sentence will also apply to distributions under a terminated Plan that, had it not been terminated, would have been aggregated with this Plan under Code Section 416(g)(2)(A)(i). In the case of a distribution made for a reason other than separation from employment, death, or disability, this provision will be applied by substituting “five-year period” for “one-year period.”

(ii)       Employees Not Performing Services During Year Ending on the Determination Date. The Accrued Benefits and accounts of any individual who has not performed services for the Employer during the one-year period ending on the Determination Date will not be taken into account. 

(i)   Top-Heavy Group means an Aggregation Group in which, as of the Determination Date, the sum of:

(i)        The Present Value of Accrued Benefits of Key Employees under all defined benefit plans included in the group; and

(ii)       The Aggregate Accounts of Key Employees under all defined contribution plans included in the group

exceeds 60% of a similar sum determined for all Participants.

1.60    Trust Agreement

The agreement, entered into with the Trustee, or any successor Trustee, establishing the Trust Fund and specifying the duties of the Trustee.

1.61     Trust Fund

All assets of any kind and nature from time to time held by the Trustee or its agent under the Trust Agreement without distinction between income and principal. This Plan contemplates a single Trust Fund for all Employers under this Plan. However, the Trustee will maintain separate records of account to reflect properly each Participant’s Account Balance from each Employer, if any.

1.62    Trustee

The then acting Trustee or, collectively, if there is more than one, the then acting Trustees of the Trust Fund.

1.63    Valuation Date

Each business day of the Plan Year, or such other dates determined by the Administrator.

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1.64    Year of Service

Year of Service means a 365-day period of Service. For purposes of determining an Employee’s Years of Service, an Employee will receive credit for the aggregate of all time periods commencing on an Employee’s Employment Commencement Date (or Re-Employment Commencement Date) and ending on his or her Severance from Employment Date.

(a)   A Year of Service (including a fraction thereof) will be credited for each completed 365 days of elapsed time (as defined in Treasury Regulation Section 1.410(a)-7) that need not be consecutive. An Employee will receive credit towards the completion of a Year of Service for any Period of Severance of less than 365 days. 

(b)   In computing an Employee’s Years of Service, the following rules will apply:

(i)        For a Participant who terminates employment and who subsequently is re-employed after incurring five consecutive one year Breaks in Service, Years of Service after the Break in Service will not be taken into account for purposes of determining the Nonforfeitable percentage of an Employee’s Account Balance derived from Employer contributions that accrued before the Break in Service.

(ii)       For a Participant who terminates employment without any vested right to his Account Balance and who is re-employed after a one year Break in Service, Service before the Break in Service will not be taken into account if the number of consecutive one year Breaks in Service equals or exceeds the greater of (i) five, or (ii) the aggregate number of Years of Service before the Break in Service. A Participant is considered nonvested for this purpose only if:

(A)     The Participant has no vested interest in any amounts in his or her Account Balance; and

(B)     The Participant has no Salary Deferral Contributions in this Plan.

(iii)      Service with the Employer before a Participant enters this Plan will be considered for purposes of vesting.

ARTICLE II
Eligibility and Participation

2.1       Eligibility Conditions

Each Eligible Employee who was a Participant in the Plan on the Effective Date shall continue to be a Participant in the Plan after the Effective Date to the extent such Eligible Employee had satisfied the applicable eligibility requirements for the applicable contributions to be made under the Plan as set forth in ARTICLE III.  Otherwise, each Eligible Employee shall become a Participant as follows:

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(a)            Each Eligible Employee shall become a Participant for purposes of electing to make a Salary Deferral Contribution in accordance with Section 3.1 and a Catch-Up Contribution in accordance with Section 3.2 on the appropriate Entry Date coincident with or immediately following the date on which such Eligible Employee attains age 21 and completes 90 days of Service;

(b)            For all other purposes of this Plan, including without limitation, receiving Safe Harbor Matching Contributions under Section 3.3, receiving Profit Sharing Contributions under Section 3.4, or receiving Nonelective Contributions under Section 3.5, each Eligible Employee shall become a Participant for such purposes upon the attainment of age 21 and the completion of one Year of Service. 

2.2       Participation Election

Whenever a new Eligible Employee is hired by the Employer, the Employer immediately will give notice to the Administrator of the employment and will identify the new Employee. The Administrator will notify in writing each new Eligible Employee of the pending eligibility prior to the date on which the Employee will become eligible under Section 2.1 and will furnish the Employee a copy of this Plan or any other explanation of this Plan that the Administrator will provide for that purpose.

2.3       Participant Re-Entry

If the employment of a Participant is terminated and the Participant subsequently is re-employed as an Eligible Employee, the re-employed Eligible Employee will become a Participant on the Re-Employment Commencement Date. If an Eligible Employee terminates employment prior to satisfying the eligibility requirements of Section 2.1 and subsequently is re-employed as an Eligible Employee, the re-employed Employee will become a Participant after meeting the eligibility requirements of Section 2.1, but will be credited for Service retroactively to the Re-Employment Commencement Date for purposes of eligibility and vesting. If an Eligible Employee becomes eligible in accordance with Section 2.1 but terminates employment prior to the first Entry Date, and the Employee is later re-employed as an Eligible Employee, the Employee will become a Participant on the Re-Employment Commencement Date.

ARTICLE III
Contributions

3.1       Salary Deferral Contributions

The amount of the Salary Deferral Contributions to the Trust Fund will equal the amount determined under this Section. Subject to the limitations contained in this Section 3.1, each Participant may elect to defer any amount of his or her Compensation in whole percentages up to a maximum of 50% of the Participant’s Compensation, but may not elect to defer an amount to cause this Plan to violate the limitations of this Section or Code Section 415, or to exceed the applicable maximum amount allowable as a deduction to the Employer under Code Section 404. A Participant may elect to defer Compensation under this Section only in an amount that the Participant otherwise could elect to receive

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in cash and that is currently available to the Participant. Compensation is not currently available to the Participant if the Participant is not eligible to receive it at the time of the deferral election. The amounts by which a Participant elects to reduce Compensation under this Plan will be his Salary Deferral Contribution. The Employer will contribute to the Trust Fund the amount of the Salary Deferral Contributions elected by each Participant and credit such amounts to the Salary Deferral Contribution Account of each Participant. 

A Participant’s Salary Deferral Contributions will not exceed the 401(k) Ceiling for the taxable year of the Participant in which such Salary Deferral Contribution is made to the Plan, except to the extent permitted under Code Section 414(v) and Section 3.2 referring to Catch-Up Contributions. “Excess Salary Deferrals” are Salary Deferral Contributions that exceed the 401(k) Ceiling and are includable in a Participant’s gross income under Code Section 402(g). Excess Salary Deferrals will be treated as Annual Additions under this Plan, unless such amounts are distributed no later than the first April 15 following the close of the Participant’s taxable year.

(a)   Salary Deferral Contributions means, for any taxable year, the sum of:

(i)        Any Employer contribution under a qualified cash or deferred arrangement defined in Code Section 401(k), determined without regard to the 401(k) Ceiling;

(ii)       Any Employer contribution under a simplified employee pension as defined in Code Section 408(k)(6), pursuant to a salary reduction agreement; and

(iii)      Any Employer contribution toward the purchase of a tax sheltered annuity contract as defined in Code Section 403(b), if any, pursuant to a salary reduction agreement.

Salary Deferral Contributions will not include any deferrals properly distributed as excess Annual Additions.

(b)   If the 401(k) Ceiling is exceeded, the Administrator will direct the Trustee to distribute the Excess Salary Deferrals, and any income or loss allocable to the Excess Salary Deferrals (determined in accordance with the requirements of Treasury Regulation Section 1.402(g)-1(e)(5), to the Participant not later than the first April 15 following the close of the Participant’s taxable year.

(i)        If a Participant is also a participant in (i) another qualified cash or deferred arrangement defined in Code Section 401(k); (ii) a simplified employee pension defined in Code Section 408(k); or (iii) a salary reduction arrangement pursuant to which an employer purchases a tax sheltered annuity contract defined in Code Section 403(b), and such Participant’s Salary Deferral Contributions made under the other arrangement(s) and this Plan cumulatively exceed the 401(k) Ceiling, then the Participant may, not later than March 1 following the close of the Participant’s

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taxable year in which such excess occurred, notify the Administrator in writing of the excess and request that his Salary Deferral Contributions under this Plan be reduced by an amount specified by the Participant. The specified amount then will be distributed in the same manner as provided in clause (ii) above. A Participant is deemed to notify the Administrator of any Excess Salary Deferrals that arise by taking into account only those Salary Deferral Contributions made to this Plan and any other plans of the Employer.

(ii)       If any of the foregoing provisions of this Section do not conform with applicable Treasury Regulations, the nonconforming provisions may be amended retroactively to assure conformity.

3.2       Catch-Up Contributions

All Participants who are eligible to make Salary Deferral Contributions under this Plan and who have attained age 50 before the close of the Plan Year will be eligible to make Catch-Up Contributions in accordance with, and subject to the limitations of Code Section 414(v). Such Catch-Up Contributions will not be taken into account for purposes of the provisions of this Plan implementing the required limitations of Code Sections 402(g) and 415. This Plan will not be treated as failing to satisfy the provisions of this Plan implementing the requirements of Code Sections 401(k)(3), 401(k)(11), 401(k)(12), 410(b), or 416, as applicable, by reason of the making of such Catch-Up Contributions.  A Participant’s Salary Deferral Contributions must reach the 401(k) Ceiling referenced in Section 3.1 of the Plan or the maximum annual addition limit in Section 4.3 of the Plan in order to make Catch-Up Contributions under this Section.  To the extent that a Participant’s Salary Deferral Contributions do not exceed the 401(k) Ceiling (or the maximum annual addition limit in Section 4.3), then any purported Catch-Up Contributions made pursuant to this Section shall be recharacterized as Salary Deferral Contributions. 

3.3       Safe Harbor Matching Contributions

(a)   A Participant who elects to have Salary Deferral Contributions made on his or her behalf to this Plan will accrue a Safe Harbor Matching Contribution each payroll period in an amount equal to:

(i)        100% of the amount of each Participant’s Salary Deferral Contributions and Catch-Up Contributions for the payroll period up to the first 3% of the Participant’s Compensation that is deferred for the payroll period; plus

(ii)       An additional amount on the next 3% of the Participant’s Compensation, determined as follows:

(A)      if the Participant is either (1) a Highly Compensated Employee, or (2) a Non-Highly Compensated Employee who is credited with less than 10 Years of Service, the additional Safe Harbor Matching Contribution shall be equal to 50% of the amount of each

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Participant’s Salary Deferral Contributions and Catch-Up Contributions for the payroll period up to the next 3% of the Participant’s Compensation that is deferred for the payroll period;

(B)      if the Participant is a Non-Highly Compensated Employee who is credited with 10 or more Years of Services but less than 20 Years of Service, the additional Safe Harbor Matching Contribution shall be equal to 75% of the amount of each Participant’s Salary Deferral Contributions and Catch-Up Contributions for the payroll period up to the next 3% of the Participant’s Compensation that is deferred for the payroll period; or

(C)      if the Participant is a Non-Highly Compensated Employee who is credited with 20 or more Years of Services, the additional Safe Harbor Matching Contribution shall be equal to 100% of the amount of each Participant’s Salary Deferral Contributions and Catch-Up Contributions for the payroll period up to the next 3% of the Participant’s Compensation that is deferred for the payroll period.

(iii)      True Up Safe Harbor Matching Contribution.    In addition to amounts contributed under Section 3.3(a), for each Participant whose total Safe Harbor Matching Contribution for the Plan Year was limited to less than the maximum Safe Harbor Matching Contribution to which such Participant was entitled (as calculated under Section 3.3(a)) by virtue of the limits imposed under Code Section 401(a)(17) or the 401(k) Ceiling being reached before the Plan Year end, the Company shall contribute for each such Participant an additional “true up” Safe Harbor Matching Contribution as soon as administratively feasible following the end of each Plan Year (to be allocated to such Participant’s Individual Accounts as of the last day of such prior Plan Year) equal to the difference between:

(A)      the maximum Safe Harbor Matching Contribution to which the Participant was entitled (as calculated under Section 3.3(a)) based upon the formula set forth in Section 3.3(a), and

(B)      the amount of Safe Harbor Matching Contributions already allocated to such Participant’s Individual Accounts for such Plan Year.

(b)   Notwithstanding anything to the contrary herein, Salary Deferral Contributions that exceed six percent of a Participant’s Compensation will not be taken into account when calculating Safe Harbor Matching Contributions.

(c)   Notwithstanding the foregoing, the Safe Harbor Matching Contributions (together with all other applicable contributions) for any Plan Year will not exceed the applicable maximum amount allowable as a deduction to the Employer under Code

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Section 404.  The Safe Harbor Matching Contributions for any Plan Year on behalf of a Participant will not exceed the limitations on Annual Additions as described under Section 4.3, even if the contribution formula otherwise would require a larger contribution.  The Safe Harbor Matching Contributions on behalf of each Participant will be credited to such individual’s Safe Harbor Matching Contribution Account.

(d)   By virtue of the Safe Harbor Matching Contributions, this Plan is intended to be a “safe harbor plan” under the Code’s rules prohibiting discrimination in favor of Highly Compensated Employees.  Safe Harbor Matching Contributions are intended to be matching safe harbor contributions for the purposes of satisfying the requirements of Code Sections 401(k)(12)(B) and 401(m)(11).

3.4       Profit Sharing Contributions

At the Employer’s sole discretion, a discretionary Profit Sharing Contribution may be made to the Trust Fund each Plan Year on behalf of each Participant who is employed on the last day of the Plan Year. For each Plan Year, the amount of the discretionary Profit Sharing Contribution to the Trust Fund will be equal to an amount that the Employer from time to time may deem advisable. Unless an Employer affirmatively elects to make a discretionary Profit Sharing Contribution for a Plan Year on behalf of Participants, no such contribution will be made.

Notwithstanding the foregoing, the aggregate Profit Sharing Contributions (together with all other applicable contributions) for any Plan Year under this Section 3.4 will not exceed the applicable maximum amount allowable as a deduction to the Employer under Code Section 404. The aggregate Profit Sharing Contributions for any Plan Year on behalf of a Participant will not exceed the limitation on Annual Additions as described in Section 4.3, even if the contribution formula otherwise would require a larger contribution. The aggregate Profit Sharing Contributions on behalf of each Participant will be credited to such individual’s Profit Sharing Contribution Account.

3.5      Nonelective Contributions

At the Employer’s sole discretion, a discretionary Nonelective Contribution may be made to the Trust Fund each Plan Year on behalf of each Participant who is: (a) a Corporate Eligible Employee; and (b) employed on the date such Nonelective Contribution is made to the Trust Fund.  Nonelective Contributions shall be made as soon as administratively practicable following the declaration of such Nonelective Contribution by the Plan Sponsor.  For each Plan Year, the amount of the discretionary Nonelective Contribution to the Trust Fund, if made, will be equal to an amount as described in the attached Exhibit A to this Plan.  Unless an Employer affirmatively elects to make a Nonelective Contribution for a Plan Year on behalf of Participants who are Eligible Corporate Employees, no such Nonelective Contribution will be made.

Notwithstanding the foregoing, the aggregate Nonelective Contributions (together with all other applicable contributions) for any Plan Year under this Section 3.5 will not exceed the applicable maximum amount allowable as a deduction to the Employer under

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Code Section 404.  The aggregate Nonelective Contribution for any Plan Year on behalf of a Participant who is a Corporate Eligible Employee will not exceed the limitation on Annual Additions as described in Section 4.3, even if the contribution formula otherwise would require a larger contribution.  The aggregate Nonelective Contributions on behalf of each Participant who is a Corporate Eligible Employee will be credited to such individual’s Nonelective Contribution Account

3.6      Rules Governing Deposits of Contributions

(a)   Salary Deferral Contributions and Catch-Up Contributions accumulated through payroll deductions will be paid to the Trustee with reasonable promptness and not later than the time permitted by the U.S. Department of Labor under Labor Regulations at 29 C.F.R. § 2510.3-102.

(b)   The Employer will pay to the Trustee the Employer contributions (other than Salary Deferral Contributions and Catch-Up Contributions) at any time and from time to time; except that the total Employer contribution for any Plan Year will be paid in full not later than the time prescribed by Code Section 404(a)(6) to enable the Employer to obtain a deduction on its federal income tax return for the Employer’s taxable year.

(c)   Upon payment to the Trustee, all Employer contributions will be added immediately to and become a part of the Trust Fund.

(d)   All Salary Deferral Contributions and Catch-Up Contributions, if any, will be credited to the Salary Deferral Contribution Account of each Participant as of the last day of each payroll period. All Safe Harbor Matching Contributions, Profit Sharing Contributions, and Nonelective Contributions, if any, will be credited to the Safe Harbor Matching Contribution Account, Profit Sharing Contribution Account, and Nonelective Contribution Account, respectively, of each Participant upon deposit with the Trustee in accordance with this Section 3.6.

3.7       Adjustment of Individual Accounts

As of each Valuation Date, before allocating and crediting contributions and Forfeitures, if any, for the Plan Year as provided in ARTICLE IV, the Trustee will adjust all Individual Accounts as follows:

(a)   The Trustee will determine the fair market value of the Participant’s directed investments.

(b)   The Trustee will adjust the value of the Participant’s Individual Accounts by crediting them with any increases in value since the last Valuation Date or, if applicable, since the date of acquisition of the Participant’s directed investments.

(c)   The Trustee will credit the Participant’s Individual Accounts with any income and charge the Participant’s Individual Accounts with any expenditures resulting from the Participant’s directed investments.

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A Participant will be responsible for reviewing the information concerning investment directives and earnings allocations on his or her Participant statement. If there is any inaccuracy in the information contained on such statement, the Participant will report such inaccuracies to the Administrator or the Trustee within the ninety (90)-day period immediately following the date such statement was received. If a Participant fails to report an inaccuracy within this ninety (90)-day period, this Plan will not be required to make retroactive adjustments to the Participant’s Account but will rectify any errors on a prospective basis.

3.8       Participant Voluntary After Tax Contributions

This Plan does not permit or accept Participant voluntary after tax contributions.

ARTICLE IV
Allocation of Employer Contributions to Individual Accounts

4.1       Allocation of Contributions.

(a)   Salary Deferral Contributions and Catch-Up Contributions made by the Employer on a Participant’s behalf will be allocated to such Participant’s Salary Deferral Contribution Account in the amount determined in accordance with Sections 3.1 and 3.2, respectively. 

(b)   Safe Harbor Matching Contributions made by the Employer on a Participant’s behalf will be allocated to such Participant’s Safe Harbor Matching Contribution Account in the amount determined in accordance with Section 3.3.

(c)   Profit Sharing Contributions, if any, made by the Employer on a Participant’s behalf pursuant to Section 3.4 will be allocated to the Profit Sharing Contribution Accounts of eligible Participants employed by the Employer on the last day of the Plan Year. The allocation to each such eligible Participant’s Profit Sharing Contribution Account will be that portion of the Profit Sharing Contribution that is in the same proportion that such Participant’s Compensation for such Plan Year bears to the total of all such Participants’ Compensation for such Plan Year.

(d)   Nonelective Contributions, if any, made by the Employer on a Corporate Eligible Employee’s behalf pursuant to Section 3.5 will be allocated to the Nonelective Contribution Accounts of such Corporate Eligible Employees in accordance with the attached Exhibit B to this Plan.

4.2      Application of Forfeitures.

Any amounts that are forfeited under any provision of this Plan during a Plan Year will be applied in the manner determined by the Administrator to: (i) first correct the improper exclusion of any otherwise Eligible Employees pursuant to Section 2.1 hereof; (ii) second reduce Safe Harbor Matching Contributions, Profit Sharing Contributions and Nonelective Contributions; and (iii) third reduce this Plan’s ordinary and necessary administrative expenses.  All forfeitures to be used under this Section shall be allocated

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promptly in the year in which such forfeitures occurred or in appropriate situations no later than the immediately succeeding Plan Year.

4.3       Limitations on Allocations Under Code Section 415.

Contributions hereunder will be subject to the limitations of Code Section 415 and Treasury Regulations published pursuant to such Code Section, the provisions of which are specifically incorporated by reference; to the extent any portion of this Section conflicts with such Treasury Regulations, the provisions of the regulations will govern.    

(a)   The Annual Additions to a Participant’s Individual Accounts hereunder (together with the Annual Additions to the Participant’s account(s) under any other defined contribution plans required to be aggregated with this Plan) for any Limitation Year may not exceed the lesser of: 

(i)        $50,000, subject to cost-of-living increases as allowed under Code Section 415(d); or

(ii)       100% of the Participant’s Testing Compensation for the Limitation Year.

In the event the preceding limitations apply to an individual who is a Participant in this Plan and was a Participant in any other defined contribution plan maintained by the Employer, the limitations will apply first to this Plan.  

(b)   In the event the limitations in this Section are not satisfied, correction will be made under the rules provided in Revenue Procedure 2008-50 (and any successor to that Revenue Procedure).

(c)   For purposes of this Section 4.3, a Participant’s “annual compensation” shall also include Post Severance Compensation.  The term “Post-Severance Compensation” means the amount that would have been included in the definition of Compensation if the amounts were paid prior to the Employee’s Separation from Service with the Employer and that are paid to the Employee by the later of 2½ months after Separation from Service with the Employer or the end of the Limitation Year that includes the Employee’s date of Separation from Service with the Employer.  Regular pay after Separation from Service will be considered Post-Severance ComIensation if:

(i)        The payment is regular compensation for services during the Employee’s regular working hours, or compensation for services outside the Employee’s regular working hours (such as overtime or shift differential), commissions, bonuses, or other similar payments; and

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(ii)       The payment would have been paid to the Employee prior to a Separation from Service if the Employee had continued in employment with the Employer.

4.4       Top-Heavy Allocations

(a)   Minimum Allocation. Notwithstanding the foregoing, for any Plan Year in which this Plan is determined to be Top-Heavy, the amount of Employer contributions and Forfeitures allocated to the Individual Accounts of each Non-Key Employee will be equal to the lesser of three percent of each Non-Key Employee’s Testing Compensation or the highest contribution rate for the Plan Year made on behalf of any Key Employee. However, if a defined benefit plan maintained by the Employer that benefits a Key Employee depends on this Plan to satisfy the nondiscrimination rules of Code Section 401(a)(4) or the coverage rules of Code Section 410(b) (or another plan benefiting the Key Employee so depends on the defined benefit plan), the top heavy minimum allocation is three percent of the Non-Key Employee’s Testing Compensation regardless of the contribution rate for the Key Employee.

(b)   Contribution Rate. For purposes of this Section, a Participant’s contribution rate is the sum of Employer contributions (not including Employer contributions to Social Security) and Forfeitures allocated to the Participant’s Individual Accounts for the Plan Year divided by his or her Testing Compensation for the entire Plan Year. To determine a Participant’s contribution rate, the Administrator must treat all qualified top-heavy defined contribution plans maintained by the Employer (or by any Related Employers) as a single plan. 

Notwithstanding the preceding:

(i)        Salary Deferral Contributions on behalf of Key Employees are taken into account in determining the minimum required contribution under Code Section 416(c)(2). However, Salary Deferral Contributions on behalf of Employees other than Key Employees may not be treated as Employer contributions for the minimum contribution or benefit requirement of Code Section 416.

(ii)       Safe Harbor Matching Contributions will be taken into account for purposes of satisfying the minimum contribution requirements of Code Section 416(c)(2). The preceding sentence will apply with respect to Safe Harbor Matching Contributions under this Plan or, if this Plan provides that the minimum contribution requirement will be met in another Plan, such other Plan. Safe Harbor Matching Contributions that are used to satisfy the minimum contribution requirements will be treated as matching contributions for purposes of the Actual Contribution Percentage Test and other requirements of Code Section 401(m). 

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(iii)      Qualified nonelective contributions described in Code Section 401(m)(4)(C) may be treated as Employer contributions for the minimum contribution or benefit requirement of Code Section 416.

(c)   Participant Entitled to Top-Heavy Minimum Allocation. The minimum allocation under this Section will not be provided to any Participant who was not employed by the Employer on the last day of the Plan Year. The provisions of this Section will not apply to any Participant to the extent the Participant is covered under any other plan or plans of the Employer and any Related Employer under which the minimum allocation or benefit requirements under Code Section 416(c)(1) or (c)(2) are met for the Participant. Notwithstanding any limitations within this Plan’s definition of Testing Compensation, amounts earned during the period preceding a Participant’s Entry Date will be included for purposes of determining the minimum top-heavy allocation provided by this Section.

(d)   Compliance. The Plan will satisfy the top-heavy minimum allocation under this Section. The Administrator first will allocate the Employer contributions (and Forfeitures, if any) for the Plan Year pursuant to the allocation formula under ARTICLE IV. The Employer then will contribute an additional amount for the Individual Accounts of any Participant entitled under this Section to a top-heavy minimum allocation and whose contribution rate for the Plan Year, under this Plan and any other plan aggregated under this Section, is less than the top-heavy minimum allocation. The additional amount is the amount necessary to increase the Participant’s contribution rate to the top-heavy minimum allocation. The Administrator will allocate the additional contribution to the Individual Accounts of the Participant on whose behalf the Employer makes the contribution.

4.5       Post-Allocation Adjustments to Accounts

After the amount or amounts have been allocated and credited to each Participant’s Individual Accounts, as provided in this Article, the then value of the Participant’s Individual Accounts will remain unchanged until the next Accounting Date. Notwithstanding the foregoing, the Participant’s Account Balance may be adjusted prior to the next Accounting Date under:

(a)   Other provisions in this Plan authorizing the Administrator to reduce the Participant’s Individual Accounts by disbursements properly chargeable to them or increased by funds received and credited to them; or

(b)   A special valuation of the Participant’s Individual Accounts. 

For purposes of this Article, reference to the Individual Accounts of Participants will include the Individual Accounts of those Participants who die, become Disabled, or retire during the Plan Year.

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ARTICLE V
In-Service Distributions

5.1      Withdrawal of Employer Contributions Before Severance From Employment

Except as provided under Section 5.2 below, upon attainment of age 59½ years, a Participant will have the right to request withdrawal of all or any portion of the Participant’s fully vested and Nonforfeitable Individual Account(s). All determinations of the amount credited to a Participant’s Individual Accounts will be made as of the most recent Valuation Date. A Participant will make an election under this Section on a form prescribed by and delivered to the Administrator at any time during the Plan Year for which the election will be effective. In the written election, the Participant will specify the desired percentage or dollar amount to be distributed by the Trustee to the Participant. The Trustee will distribute to a Participant as elected under this Section within the 90 day period, or as soon as administratively feasible, after the Participant files the written election with the Administrator. The Trustee will distribute the balance of the Participant’s Individual Accounts not distributed pursuant to ARTICLE VIII when the Participant terminated employment with the Employer.

5.2      Withdrawal of Salary Deferral Contributions Before Severance From Employment

(a)   Statutory Restriction on Disbursements. Amounts held in a Participant’s Salary Deferral Contribution Account or Safe Harbor Matching Contribution Account may not be distributable prior to the earliest of:

(i)        Severance from Employment, Disability, or death;

(ii)       Attainment of age fifty-nine and one-half (59½) years;

(iii)      Plan termination (provided, that the Employer does not maintain an “alternative defined contribution plan” into which such amounts would be transferred under the requirements of Treasury Regulation Section 1.401(k)-1(d)(4)(i)); or

(iv)      Proven financial hardship, subject to the limitations described in Section 5.3.

For purposes of these distribution restrictions, “Severance from Employment” means when an Employee ceases to be an Employee of the Employer maintaining this Plan. An Employee does not have a Severance from Employment if, in connection with a change of employment, the Employee’s new employer maintains this Plan with respect to the Employee, by assuming sponsorship of this Plan or by accepting a transfer of Plan assets and liabilities (within the meaning of Code Section 414(l)) with respect to the Employee

For purposes of determining whether the Employer maintains an “alternative defined contribution plan” (described in Treasury Regulation Section 1.401(k)-1(d)(4)(i)) that would prevent the Employer from distributing Salary Deferral

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Contributions (and other amounts, such as qualified nonelective contributions, which are subject to the distribution restrictions that apply to Salary Deferral Contributions) from an otherwise terminated Plan, an alternative defined contribution plan does not include an employee stock ownership plan defined in Code Sections 4975(e)(7) or 409(a), a simplified employee pension as defined in Code Section 408(k), a SIMPLE IRA plan as defined in Code Section 408(p), a plan or contract that satisfies the requirements of Code Section 403(b), or a plan that is described in Code Sections 457(b) or (f).

5.3      Hardship Distributions

Distribution of a Participant’s Nonforfeitable Salary Deferral Contributions, Catch-up Contributions, Profit Sharing Contributions, Matching Contributions, and Nonelective Contributions, may be made to a Participant in the event of a hardship.  In no event shall amounts held in a Participant’s Safe Harbor Matching Contribution Account be eligible for distribution under this Section 5.3. For purposes of this Section, a “hardship distribution” is a distribution that is necessary to satisfy an immediate and heavy financial need of a Participant who lacks other available resources to satisfy such need.

(a)   A distribution will be considered to satisfy an immediate and heavy need of a Participant if the distribution is for:    

(i)        Expenses incurred for or necessary to obtain medical care for the Participant, or the Participant’s spouse, children, dependents (as defined below in this Section 5.3(a)), or primary beneficiary (as defined below in this Section 5.3(a)) that would be deductible under Code Section 213(d) (determined without regard to whether the expenses exceed 7.5% of adjusted gross income); 

(ii)       Costs directly related to the purchase, excluding mortgage payments, of a principal residence for the Participant; 

(iii)      Payment of tuition, related educational fees, and room and board expenses, for up to the next 12 months of post-secondary education for the Participant, or the Participant’s spouse, children, dependents (as defined below in this Section 5.3(a)), or primary beneficiary (as defined below in this Section 5.3(a));

(iv)      Payments necessary to prevent the eviction of the Participant from, or a foreclosure on the mortgage of, the Participant’s principal residence;

(v)       Payments for burial or funeral expenses for the Participant’s deceased parent, spouse, children, dependents (as defined below in this Section 5.3(a)), or primary beneficiary (as defined below in this Section 5.3(a)); or

(vi)      Expenses for the repair of damage to the Participant’s principal residence that would qualify for the casualty deduction under Code Section 165

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(determined without regard to whether the loss exceeds 10% of adjusted gross income).

For purposes of this Section 5.3(a), a “dependent” shall mean a dependent as defined in Code Section 152, and, without regard to Code Section 152(b)(1), (b)(2) and (d)(1)(B).  Furthermore, a “primary beneficiary” shall be an individual who is named as a Beneficiary under this Plan and has an unconditional right to all or a portion of the Participants Account Balance under the Plan upon the death of the Participant.

(b)   A distribution will be considered necessary to satisfy an immediate and heavy financial need of a Participant who lacks other available resources only if: 

(i)        The Participant represents in writing that the need cannot reasonably be relieved through reimbursement or compensation by insurance or otherwise; by liquidation of the Participant’s assets; by cessation of Salary Deferral Contributions under this Plan; by obtaining all distributions, other than hardship distributions, and all nontaxable loans currently available to him under all plans currently maintained by the Employers; or by borrowing from commercial sources on reasonable commercial terms; and

(ii)       The distribution is not in excess of the amount of an immediate and heavy financial need, including amounts necessary to pay any federal, state or local income taxes or penalties reasonably anticipated to result from the distribution. 

(c)   In addition to the conditions above each plan maintained by the Employer or a legally enforceable arrangement will provide that the Participant’s Salary Deferral Contributions, if any, will be suspended for six months after receipt of the hardship distribution.

(d)   A Participant’s hardship event, for purposes of this Section, includes an immediate and heavy financial need of the Participant’s primary Beneficiary, which would constitute a hardship event if it occurred with respect to the Participant’s spouse or dependent, as defined under Code Section 152. For purposes of this Subsection, such hardship events will be limited to educational expenses, funeral expenses and certain medical expenses.

5.4       Qualified Reservist Distributions

This Plan permits a Participant to elect a qualified reservist distribution. For this purpose, a “qualified reservist distribution” is any distribution to an individual who is ordered or called to active duty after September 11, 2001, if: (i) the distribution is from amounts attributable to Salary Deferral Contributions; (ii) the individual was (by reason of being a member of a reserve component, as defined in Section 101 of Title 37 of the United States Code) ordered or called to active duty for a period in excess of one hundred seventy nine (179) days or for an indefinite period; and (iii) this Plan makes the

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distribution during the period beginning on the date of such order or call, and ending at the close of the active duty period.

5.5       Reservist Severance Distributions

For purposes of receiving a distribution of his or her Individual Account, a Participant may elect to be treated hereunder as having had a Severance from Employment Date with his or her Employer during any period the Participant is performing service in the uniformed services of the United States Armed Forces while on active duty for a period of more than 30 days; provided however, that Participants that take a distribution pursuant hereto may not make Salary Deferra Contributions or Catch-up Contributions during the 6-month period beginning on the date of the distribution.

ARTICLE VI
Distributions After Severance from Employment

6.1       Eligibility Due to Retirement, Death, or Disability

(a)   Retirement.  At Normal Retirement Age, a Participant will be fully vested in his or her Individual Accounts and the Trustee will hold such Individual Accounts for the Participant’s benefit. If a Participant retires (or otherwise terminates employment) on or after his or her Normal Retirement Date, the Administrator will credit and adjust the Participant’s Individual Accounts as provided in ARTICLE III and ARTICLE IV, as of the Valuation Date immediately preceding a distribution pursuant to Section 6.6 below.

(b)   Death. Upon death, a Participant will be fully vested in his or her Individual Accounts and the Trustee will hold such Individual Accounts for the benefit of the Participant’s Beneficiary or Beneficiaries. The Administrator will credit and adjust the deceased Participant’s Individual Accounts as provided in ARTICLE III and ARTICLE IV, as of the Valuation Date immediately preceding the date of a distribution pursuant to Section 6.6 below. A Participant’s Beneficiary or Beneficiaries will be entitled to benefits under Section 6.6 after the death of the Participant or Former Participant.  If a Participant dies while performing qualified military service (as defined in Code Section 414(u)), the survivors of the Participant are entitled to any additional benefits (other than benefit accruals relating to the period of qualified military service) provided under this Plan as if the Participant had resumed and then terminated employment on account of death.

(c)   Disability. As of his Severance from Employment Date due to Disability, a Participant will be fully vested in his or her Individual Accounts and the Trustee will hold the Individual Accounts for the Participant’s benefit. The Administrator will credit and adjust the Individual Accounts of a disabled Participant, as provided in ARTICLE III and ARTICLE IV, as of the Valuation Date immediately preceding the date of a distribution pursuant to Section 6.6 below. A disabled Participant will be entitled to benefits under Section 6.6 after the Participant’s date of Disability.

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6.2       Eligibility Due To Severance from Employment

If a Participant’s employment with the Employer will terminate for any reason other than retirement, death, or Disability, the Participant will be vested in his or her Individual Accounts as provided in Section 6.3 below, and the Trustee will hold the Nonforfeitable portion of the Participant’s Account Balance in his Individual Accounts for the Participant’s benefit. The Administrator will credit and adjust the Individual Accounts of the terminated Participant, as provided in ARTICLE III and ARTICLE IV, as of the Valuation Date immediately preceding the date of the distribution pursuant to Section 6.6 below. A terminated Participant will be entitled to benefits under this Section 6.2 and Section 6.3 after the Participant’s Severance from Employment Date.

6.3       Vesting

(a)   Fully Vested Accounts.  A Participant to whom Section 6.2 applies will be fully vested:

(i)        at all times in amounts credited to his or her (i) Salary Deferral Contribution Account, (ii) Rollover Contribution Account, and (iii) Safe Harbor Contribution Account; and

(ii)       for Nonelective Contributions made on or after January 1, 2013, in amounts credited to his or her Nonelective Contribution Account. 

(b)   Service-Based Vested Accounts.  In addition to being fully vested in those Individual Accounts identified in Section 6.3(a), a Participant to whom Section 6.2 applies will be also be entitled to receive the Nonforfeitable percentage of the balance credited to the Participant’s:

(i)        Matching Contribution Accounts,

(ii)       Profit Sharing Contribution Account, and/or

(iii)      Nonelective Contribution Account but only with respect to the those Nonelective Contributions made prior to January 1, 2013 to such Participant’s Nonelective Contribution Account

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determined under the following vesting schedule:

 

 

 

 

Years of Service

Nonforfeitable
Percentage

Less than 2 years

0%

At least 2 but less than 3 years

20%

At least 3 but less than 4 years

40%

At least 4 but less than 5 years

60%

At least 5 but less than 6 years

80%

At least 6 years

100%

 

Notwithstanding the preceding, if a Participant has been granted credit for Years of Service with a Predecessor Employer, such Participant’s Nonforfeitable percentage will be no less than the Participant’s Nonforfeitable percentage with his Predecessor Employer.  The foregoing vesting schedule will also apply for any Plan Year in which this Plan is a Top-Heavy Plan.

6.4       Forfeiture

A Participant to whom this Article applies will forfeit that portion of the amount of his Individual Accounts to which the Participant is not entitled pursuant to Section 6.3 above.

(a)   A Participant who has had a Severance from Employment Date without a Nonforfeitable Account Balance will be deemed to have received a distribution of his Nonforfeitable Account Balance on the date of separation from employment.

(b)   The amount forfeited under this Section, to the extent attributable to Employer contributions, will remain in the Trust Fund and will be allocated as provided under Section 4.2 as of the Accounting Date of the Plan Year during which the forfeiture event occurred.

6.5       Determination of Amount of Vested Undistributed Account

(a)   If the Trustee pays any amount outstanding to the credit of a Participant in the Participant’s Individual Accounts while the Participant is not fully vested in his Individual Accounts, other than a lump sum distribution that occurs no later than the last day of the second Plan Year following the Plan Year in which the Participant separates from Service, and prior to the Anniversary Date on which the Participant will incur a five year Break in Service, the value of his or her vested and

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undistributed account will be held in a separate account and will be determined at any time prior to and including the Anniversary Date on which the Participant will incur a five year Break in Service under the following formula.

X = P(AB + (R x D)) (R x D).

For this formula, the variables represent the following factors:

X is the value of the vested portion of the Participant’s Account;

P is the Participant’s Nonforfeitable percentage at the relevant time;

AB is the Account Balance at the relevant time;

D is the amount of the distribution; and

R is the ratio of the Account Balance at the relevant time to the Account Balance after the distribution.

The nonvested portion of the Participant’s Individual Accounts will be forfeited on the Anniversary Date on which the Participant incurs a five year Period of Severance.

6.6       Payment of Benefits

(a)   As soon as administratively feasible after a Participant separates from employment, and the Administrator has credited and adjusted the Individual Accounts of a Participant, the Trustee will make payments to the Participant or his Beneficiary or Beneficiaries pursuant to ARTICLE VIII, subject to the mandatory distribution requirements of ARTICLE VII. The Administrator will charge each payment to the Participant’s Individual Accounts and payments will continue until the Nonforfeitable Account Balance is paid to the Participant in full. Notwithstanding the preceding, in the event of a Participant’s death, the Administrator will distribute the Participant’s Individual Accounts no less rapidly than is required under ARTICLE VII.

(b)   Unless a Participant elects otherwise, payment of benefits will commence not later than the 60th day after the end of the Plan Year in which the latest of the following events occurs: (i) the date on which the Participant attains the Normal Retirement Age under this Plan; (ii) the 10th anniversary of the year in which the Participant commenced participation in this Plan; or (iii) the date on which the Participant terminates employment with the Employer. Notwithstanding the foregoing, a Participant may not defer commencement of benefits if such deferral would result in violation of ARTICLE VII.

(c)   Notwithstanding the foregoing paragraph, if a Participant separates from employment with the Employer and the Participant’s Nonforfeitable Account Balance is $1,000 or less, the Administrator may direct the Trustee to make

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immediate distribution to the Participant in the form of a lump sum distribution. For purposes of this paragraph, if the value of an Employee’s Nonforfeitable Account Balance is zero (0), the Employee will be deemed to have received a distribution of his or her Account Balance. However, if such Participant made any Salary Deferral Contributions to this Plan prior to separating from employment, such Participant will not be considered non‑vested under this Plan and will not be deemed to have received a distribution of his or her Account Balance. In the event of an involuntary distribution greater than $1,000, but not in excess of $5,000, if the Participant does not elect to receive such distribution or have it paid directly to an Eligible Retirement Plan (as defined in Section 8.2) specified by the Participant in a Direct Rollover, then the Administrator may pay the distribution in a Direct Rollover on behalf of the Participant to an individual retirement account (described in Code Section 408(a)) designated by the Administrator.

The value of a Participant’s Nonforfeitable Account Balance will be determined without regard to that portion of the Account Balance that is attributable to rollover contributions (and earnings allocable thereto) within the meaning of Code Sections 402(c), 403(a)(4), 403(b)(8), 408(d)(3)(A)(ii), and 457(e)(16). If the value of the Participant’s Nonforfeitable Account Balance as so determined is $1,000 or less, this Plan will immediately distribute the Participant’s entire Nonforfeitable Account Balance.

ARTICLE VII
Mandatory Distribution of Benefits

The Administrator may not direct the Trustee to distribute the Participant’s Nonforfeitable Account Balance, to the Participant or Beneficiary under a method of payment that, as of the Required Beginning Date, does not satisfy the minimum distribution requirements under Code Section 401(a)(9) and the corresponding Treasury Regulations, revenue rulings, notices, and other guidance published in the Internal Revenue Bulletin. Notwithstanding any provision of this Plan to the contrary, this Plan will (i) apply the minimum distribution requirements of Code Section 401(a)(9), including the incidental death benefit rule set forth under Code Section 401(a)(9)(G), and (ii) provide distributions in accordance with the applicable provisions of final Treasury Regulation Sections 1.401(a)(9)-1 through 1.401(a)(9)-9, the provisions of which are hereby incorporated into this Plan by reference.

ARTICLE VIII
Forms of Distribution

8.1       Forms of Payment of Benefits

(a)   Whenever a Participant, Former Participant, or Beneficiary is entitled to receive a distribution of benefits, he or she will receive such distribution in the form of a lump sum, payable in cash at the fair market value of the Nonforfeitable Account Balance when distributed.

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(b)   Notwithstanding the above, a Participant will have the right to receive payment of his benefits in any optional form of benefit payment to which that Participant would have been entitled under a plan sponsored by a Predecessor Employer in which that Participant was a Participant.

(c)   Notwithstanding the foregoing, a distribution made pursuant to this Section will be subject to the immediate cashout provisions of Section 6.6.  

8.2       Direct Rollover Benefit

(a)   Direct Rollover. Notwithstanding any provision of this Plan to the contrary that would otherwise limit a Distributee’s election under this Section, a Distributee may elect, at the time and in the manner prescribed by the 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.

(b)   Direct Rollover of Non-Spousal Distribution

(i)        Non-Spouse Beneficiary Rollover Right. An individual other than the Participant’s spouse who is a Beneficiary under this Plan and Code Section 401(a)(9)(E) and the Treasury Regulations thereunder, by a Direct Rollover, may roll over all or any portion of his or her distribution to an individual retirement account the Beneficiary establishes for purposes of receiving the distribution. In order to be able to roll over the distribution, the distribution otherwise must satisfy the definition of an Eligible Rollover Distribution.

(ii)       Certain Requirements not Applicable. Although a non-spouse Beneficiary may roll over directly a distribution as provided in this Subsection, any distribution made prior to January 1, 2010 is not subject to the Direct Rollover requirements of Code Section 401(a)(31) (including Code Section 401(a)(31)(B), the notice requirements of Code Section 402(f), or the mandatory withholding requirements of Code Section 3405(c)). If a non-spouse Beneficiary receives a cash distribution from this Plan, the distribution is not eligible for a “60-day” rollover right.

(iii)      Trust Beneficiary. If the Participant’s named Beneficiary is a trust, this Plan may make a Direct Rollover to an individual retirement account on behalf of the trust, provided the trust satisfies the requirements to be a “designated beneficiary” within the meaning of Code Section 401(a)(9)(E).

(iv)      Required Minimum Distributions not Eligible for Rollover. A non-spouse Beneficiary may not roll over an amount that is a required minimum distribution, as determined under Code Section 401(a)(9), applicable Treasury Regulations, and other Internal Revenue Service guidance. If the Participant dies before his or her Required Beginning Date and the non-spouse Beneficiary rolls over to an individual retirement account the

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maximum amount eligible for rollover, the Beneficiary may elect to use either the five-year rule or the life expectancy rule, pursuant to Treasury Regulation Section 1.401(a)(9)-3, A-4(c), in determining the required minimum distributions from the individual retirement account that receives the non-spouse Beneficiary’s distribution.

8.3       Election to Receive Benefits

Notwithstanding the foregoing, a Participant who has a Severance from Employment Date from the Employer before his or her Normal Retirement Date, if any, may elect to leave his or her Nonforfeitable Account Balance under the management of the Trustee, subject to the requirements of Section 6.6 and ARTICLE VII. The Trustee will invest and reinvest and will credit and charge the Individual Accounts with their proportionate share of gains and losses of the Trust Fund pursuant to ARTICLE IV until the Nonforfeitable Account Balance is paid out to the Former Participant under this Article. The Participant, Former Participant, or Beneficiary will elect the form or forms of payment of benefits permitted in Section 8.1 that the Administrator and Trustee will implement.

8.4       Minority or Disability

During the minority or Disability of an individual entitled to receive benefits under this Plan, the court may direct the Administrator to instruct the Trustee to make payments due the individual directly to the individual or to the spouse or a relative or to any individual or institution having custody of the individual. Neither the Administrator nor the Trustee will be required to cause or to verify the application of any payments so made, and the receipt of the payee, including the endorsement of a check or checks, will be conclusive to all interested parties.

8.5       Unclaimed Account Procedure

The Plan does not require either the Trustee or the Administrator to search for, or to ascertain the whereabouts of, any Participant or Beneficiary. At the time the Participant’s or Beneficiary’s benefit becomes distributable under ARTICLE IV, the Administrator, by certified or registered mail addressed to his or her last known address of record with the Administrator or the Employer, must notify any Participant or Beneficiary, that he or she is entitled to a distribution under this Plan. The notice must quote the provisions of this Section and otherwise must comply with the applicable notice requirements of ARTICLE IV. If the Participant, or Beneficiary, fails to claim his or her distributive share or make his or her whereabouts known in writing to the Administrator, then the Administrator will treat the Participant’s or Beneficiary’s unclaimed payable Account Balance as forfeited

If a Participant or Beneficiary who has incurred a Forfeiture of his or her Account Balance under the provisions of the first paragraph of this Section makes a claim, at any time, for the forfeited Account Balance, the Administrator must restore the Participant’s or Beneficiary’s forfeited Account Balance.

Upon termination of this Plan, in lieu of the unclaimed account procedure set forth in this Section, Section 16.6 will apply.

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ARTICLE IX
Plan Sponsor and Employers

9.1       Employer Action

Whenever the Employer is permitted or required to do or perform any act under this Plan, it will be done and performed by a person duly authorized to do or perform the act by its legally constituted authority.

9.2       Plan Amendment

(a)   The Board of Directors (or a properly designated committee thereof) has the right to amend this Plan, at any time and from time to time, in any manner.

(b)   A Plan amendment will be in writing and take effect either after the approval of such amendment, as appropriate, by written resolution of the Board of Directors (or a properly designated committee thereof), or, if such authority has been delegated to an officer of the Plan Sponsor, then, alternatively, upon execution of the amendment by such officer.  Notwithstanding the preceding, an amendment that impacts the authority or responsibility of the Trustee will become effective only upon the consent of the Trustee.

(c)   Unless it is made to secure the approval of the Commissioner of the Internal Revenue Service or other governmental bureau or agency, no amendment or modification of this Plan will:

(i)        Operate retroactively to reduce or divest the then Nonforfeitable interest in any Individual Accounts or to reduce or divest any benefit then payable hereunder unless all Participants, Former Participants, and Beneficiaries then having Individual Accounts or benefit payments affected thereby will consent to the amendments or modifications;

(ii)       Directly or indirectly affect any Participant’s Nonforfeitable percentage outside the protection of Treasury Regulation Section 1.411(a)(8);

(iii)      Decrease a Participant’s accrued benefit, except to the extent permitted under Code Section 412(c)(8), and reduce or eliminate Code Section 411(d)(6) protected benefits determined immediately prior to the adoption date (or, if later, the effective date) of the amendment, except as permitted by applicable Treasury Regulations. (An amendment reduces or eliminates Code Section 411(d)(6) protected benefits if the amendment has the effect of either: (A) eliminating or reducing a retirement-type subsidy (as defined in applicable Treasury Regulations); or (B) except as provided by applicable Treasury Regulations, eliminating an optional form of benefit. The Administrator must disregard an amendment to the extent application of the amendment would fail to satisfy this paragraph. If the Administrator must disregard an amendment because the amendment would violate clause (A) or clause (B), the Administrator must maintain a schedule of

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the optional forms of benefit this Plan must continue for the affected Participant); or

(iv)      Affect the rights, duties or responsibilities of the Trustees or the Administrator without the written consent or approval of the Trustee or Administrator.

Notwithstanding the foregoing, no amendment will retroactively decrease a Participant’s accrued benefits or otherwise retroactively place greater restrictions or conditions on a Participant’s rights to Code Section 411(d)(6) protected benefits, even if the amendment adds a restriction or condition that is otherwise permitted under Code Section 411(a), unless otherwise permitted under Treasury Regulation Sections 1.411(d)-3 or 1.411(d)-4. An optional form of benefit hereunder may be eliminated prospectively, provided that this Plan, as amended, will satisfy the requirements of Treasury Regulation Sections 1.411(d)-3(c), (d), or (e) or 1.411(d)-4.

(d)   If the vesting schedule described in Section 6.3 is amended, a Participant’s vested interest in any contribution to which the vesting schedule in Section 6.3 applied, will not be less than the Nonforfeitable percentage determined as of the later of the effective date of the amendment or the date of its adoption. A Participant with at least three (3) Years of Service on the last day of the election period described in this paragraph, may elect to have the Nonforfeitable percentage of his or her Account Balance determined without regard to the amendment. If a Participant fails to make an election, then the Participant will be subject to the new vesting schedule. The election period will commence on the date the amendment is adopted or deemed to be made and will end 60 days after the latest of:

(i)        The date of the adoption of the amendment;

(ii)       The effective date of the amendment; or

(iii)      The date the Participant receives written notice of the amendment from the Employer or Administrator.

9.3       Discontinuance, Termination of Plan

(a)   The Plan Sponsor has the right, at any time, to suspend or discontinue its contributions under this Plan to the Trust Fund, and to terminate, at any time, this Plan and the Trust. The Plan will terminate on the first to occur of the following events:

(i)        The date this Plan is terminated by action of the Plan Sponsor;

(ii)       The date the Plan Sponsor is judicially declared bankrupt or insolvent, unless the proceeding authorized continued maintenance of this Plan; or

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(iii)      The dissolution, merger, consolidation or reorganization of the Plan Sponsor or the sale by the Plan Sponsor of all or substantially all of its assets, unless the successor or purchaser elects and makes provision to continue this Plan, in which event the successor or purchaser will substitute itself as the Plan Sponsor under this Plan.

(b)   Upon either full or partial termination of this Plan, or, if applicable, upon complete discontinuance of contributions to this Plan, the Individual Accounts of all Participants, Former Participants, and Beneficiaries will be and become fully vested and Nonforfeitable, notwithstanding the Nonforfeitable percentage that otherwise would apply. The Trustee, in its discretion, may convert some or all of the Trust Fund to cash, and will deduct therefrom all unpaid charges and expenses, except as the same may be paid by the Employer. The Administrator then will adjust the balance of all Individual Accounts on the basis of the net cash balance and fair market value of all property in the Trust Fund. Thereafter, the Trustee will distribute the amount to the credit of each Participant, Former Participant, and Beneficiary in cash, in kind, or partly in cash and partly in kind, as the Administrator will direct. Notwithstanding the foregoing, a distribution made because of a termination of this Plan will be subject to the mandatory distribution requirements of ARTICLE VII and the immediate cashout distribution provisions of Section 6.6.

(c)   To the extent that this Plan is maintained as a multiple employer plan, the provisions governing the discontinuance or termination of this Plan with respect to an Employer that is not a Related Employer will be governed under Section 9.5.

9.4       Prohibition Against Reversion to Plan Sponsor or an Employer

Under no circumstances or conditions, other than those specifically provided herein, will the Trust Fund or any portion thereof revert to the Plan Sponsor or any Employer or be used for or diverted to purposes other than the exclusive benefit of the Participants, Former Participants, and Beneficiaries. No amendment or revocation by the Plan Sponsor of this Section may cause or permit any portion of the Trust Fund to revert to or become a property of the Plan Sponsor or any Employer.

9.5       Adoption by Related Employers

(a)   With the written consent of the Plan Sponsor, any other association, corporation, or other business organization, may adopt this Plan and Trust in its entirety, participate herein and be known as an Employer. The participation of an Employer that is a recipient of Leased Employee services from the Plan Sponsor will be limited to such Leased Employees unless otherwise provided in the Employer’s participation agreement.

(b)   The following requirements will apply to any Employer who elects to adopt this Plan pursuant to this Article:

(i)        Each Employer will be required to use the same Trustee as provided in this Plan.

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(ii)       The Trustee may, but will not be required to, commingle, hold, and invest as one (1) Trust Fund all contributions made by Employers and all increments thereof.

(iii)      The transfer of any Participant from or to any Employer participating in this Plan, whether the Participant is an Employee of the Plan Sponsor or an Employer, will not affect the Participant’s rights under this Plan; all amounts credited to the Participant’s Individual Accounts, all accumulated Service with the transferor or Predecessor Employer, and the length of participation in this Plan will continue to the Participant’s credit.

(c)   All rights and values forfeited by a Participant upon a Severance from Employment Date will inure only to the benefit of the Employees and Participants of the Employer that employed the forfeiting Participant, except, if the Forfeiture is for an Employee whose Employer is a Related Employer. Should an Employee of one (“First”) Employer be transferred to a Related (“Second”) Employer the transfer will not cause the Employee’s Account Balance, generated while an Employee of the First Employer, in any manner or by any amount, to be forfeited. The Employee’s Account Balance for all purposes of this Plan, including length of Service, will be considered as though the Employee had always been employed by the Second Employer and as such had received contributions, Forfeitures, earnings or losses, and appreciation or depreciation in value of assets totaling the amount so transferred.

(d)   Upon an Employee’s transfer between Employers, the Employee involved will carry accumulated Service. No transfer will effect a Severance from Employment Date under this Plan and the Employer to which the Employee transfers will thereupon become obligated under this Plan to the Employee in the same manner as the Employer from whom the Employee transfers.

(e)   Any expenses of this Plan and Trust Fund that are to be paid by the Employer or borne by the Trust Fund will be paid by each Employer in the same proportion that the total amount standing to the credit of all Participants employed by the Employer bears to the total amount standing to the credit of all Participants.

(f)   Any contribution made by an Employer that is a Related Employer will be paid to and held by the Trustee for the exclusive benefit of the Employees of the Employer and the Beneficiaries of the Employees, subject to all the terms and conditions of this Plan. Any payment to the Employer made by an entity that is a recipient of the services of Leased Employees pursuant to a written agreement with the Employer that is deposited with the Trustee will be held by the Trustee for the exclusive benefit of the Participants providing Leased Employee services and their Beneficiaries, subject to all the terms and conditions of this Plan.

(g)   Based on information furnished by each Employer, the Administrator and the Trustee will keep separate books and records concerning the affairs of each Employer and of the Account Balances of the Participants of each Employer. All

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contributions or payments made by an Employer will be determined separately on the basis of its net profit and total Compensation paid.

(h)   Each Employer indemnifies and holds harmless the other Employers, the Plan Sponsor, the Administrator, the members of the Committee, the Trustee, and each of their employees and agents from and against any and all loss resulting from liability to which the other Employers, the Plan Sponsor, the Administrator, the Trustees, or the members of the Committee, or their employees and agents, may be subjected by reason of the failure by the deemed separate plan of such Employer to satisfy the minimum coverage requirements under Code Section 410(b), the nondiscrimination requirements under Code Sections 401(a)(4), 401(k), and 401(m), Code Section 415 limitations, Code Section 416 top-heavy requirements, and any other qualification requirements that may be applicable to the Employer on a deemed separate plan basis. Further, the Employers and the Plan Sponsor will indemnify and hold harmless the Administrator, the members of the Committee, the Trustee or their employees and agents, from and against any and all loss resulting from liability to which the Administrator and the Committee, or the members of the Committee, and each of their employees and agents, may be subjected by reason of any act or conduct (except willful misconduct or gross negligence) in their official capacities in the administration of this Trust Fund or Plan or both, including all expenses reasonably incurred in their defense, in case the Employers or the Plan Sponsor fail to provide such defense. The indemnification provisions of this Section do not relieve the Administrator, any Committee member, or the Trustee, or their employees and agents, from any liability under ERISA for breach of a fiduciary duty. Moreover, the Administrator, the Committee members, the Trustee, the Plan Sponsor, the Employers, and their employees and agents, may execute a letter agreement further delineating the indemnification agreement of this Section, provided the letter agreement is consistent with and does not violate ERISA.

(i)   Each Employer will be deemed to be a part of this Plan. However, each Employer will be deemed to have designated irrevocably the Plan Sponsor as its agent in all of its relations with the Trustee, the Committee, and the Administrator.

(j)   Any Employer will be permitted to discontinue or revoke its participation in this Plan. Upon any discontinuance or revocation, satisfactory evidence thereof, and of any applicable conditions imposed will be delivered to the Trustee. The Trustee will thereafter transfer, deliver, and assign contracts and other Trust Fund assets allocable to the Participants of the Employer to the new plan as will have been designated by the Employer, if it has established a separate employee benefit pension plan for its employees. If no successor plan is designated, the Trustee will retain the assets for the Employees of the Employer under ARTICLE IX. No part of the corpus or income of the Trust Fund relating to an Employer will be used for or diverted to purposes other than the exclusive benefit of the Employees of that Employer and the Beneficiaries of the Employees.

(k)   A withdrawal by any Employer without any provision for the continuation of a plan for its Employees or, if the Employer is a recipient of the services of Leased

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Employees, for its Leased Employees, will constitute a partial termination of this Plan with respect to that Employer. Withdrawal from this Plan by any Employer will not affect the continued operation of this Plan solely with respect to the other Employers; provided, however, in the event of the withdrawal of an Employer that is a member of a group of Related Employers with respect to which this Plan constitutes a single plan and in the event that provision is made for the continuation of a defined contribution plan for its Employers separate and distinct from this Plan herein set forth, the share of the assets of the Trust Fund allocable to such group of Employers that is transferred to such other Plan will be determined by the Administrator subject to the provisions of Section 15.2.

9.6       Authority of Administrator over Employers

The Administrator will have the authority to make any and all necessary rules or regulations binding on all Employers and all Participants and Beneficiaries to effectuate the purposes of this Article.

9.7       Deficiency of Earnings or Profits

If any Employer is prevented in whole or in part from making a contribution to the Trust Fund that it otherwise would have made under this Plan because of having no current or accumulated earnings or profits, or because the earnings or profits are less than the contribution that it otherwise would have made, then so much of the contribution that the Employer was prevented from making may be made for the benefit of the participating Employees of the Employer by the other Employers that are Related Employers. The contribution by each other Employer will be limited to the proportion of its total current and accumulated earnings or profits remaining after adjustment for its contribution to this Plan made without regard to this Section, which the total prevented contribution bears to the total current and accumulated earnings or profits of all the Employers remaining after adjustment for all contributions made to this Plan without regard to this Section. An Employer on behalf of whose Employees a contribution is made under this Section will not reimburse the contributing Employer unless it has otherwise agreed to do so in writing.

ARTICLE X
Procedures for Qualified Domestic Relations Orders

10.1     Introduction

This Plan, as required under applicable federal law, generally prohibits the payment of benefits to individuals other than Plan participants and their beneficiaries. An exception to this general rule is the payment of benefits to the spouse, former spouse, child, or other dependent of a participant (“Alternate Payee”) if the payment is mandated by a domestic relations order that is qualified. A domestic relations order (“Order”) is defined as any judgment, decree, or order, including the approval of a marital property settlement, issued by a state authority (generally a court) that is related to alimony payments, child support, or division of marital property rights and that satisfies certain other requirements.

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The purpose of these QDRO procedures is to establish reasonable and consistent procedures for determining the qualified status of an Order and for making distributions pursuant to an Order that qualifies (“QDRO”) under Section 206(d)(3) of ERISA and Code Section 414(p). This Plan will not make any distribution pursuant to an Order unless it is determined to be qualified under these QDRO procedures, this Plan, and applicable federal law.

10.2     Administrator

The Administrator is designated by this Plan and is a fiduciary under ERISA section 3(21)(A).  The Administrator has exclusive discretionary authority and responsibility for administering the QDRO Procedures. The Administrator will provide only factual information concerning this Plans terms and a participants benefits under this Plan. Parties seeking QDROs may not rely on the Administrator for advice concerning which type of QDRO is appropriate for them. If any party is unsure as to the legal requirements of a QDRO or the benefits to which the party is entitled, that party should consult a legal advisor.

10.3     Notices

Any notice provided under the QDRO Procedures will be mailed or otherwise sent to the addresses provided in the Order. If the Order does not specify an address or if a notice is being provided before this Plans receipt of an Order, the notice will be sent to the last address of each party that is known to the Administrator.

The Alternate Payee and the affected Participant may each designate a representative for receipt of copies of notices that are sent to the Alternate Payee and the Participant under these QDRO procedures. Unless the Alternate Payee or the Participant otherwise requests, whenever notices are sent to the Alternate Payee or the Participant under these QDRO procedures, copies also will be sent to their respective designated representatives.

10.4     Requests for Information for Drafting QDROs

A prospective Alternate Payee, or the Alternate Payees representative, may submit a written request to the Administrator for information that is reasonably required to prepare a QDRO, including a copy of these QDRO procedures, this Plans summary plan description, and statements of the Participants Account Balance under this Plan. The Administrator may require the prospective Alternate Payee to provide the Participants authorization or other documentation before disclosing any information about the amount of the Participants Account Balance.

The Administrator will also provide a copy of this Plans model QDRO for the parties to use in drafting an Order if they so choose. The model QDRO should be modified to fit the requirements of the parties and the courts. Use of the model QDRO is not required.

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10.5     Notice of Pending Order

If, prior to this Plans receipt of an Order, the Administrator receives written notice that a Participants Individual Account is likely to be subject to a forthcoming Order based on a pending domestic relations action, the following will apply.

(a)   Notification of Participant and Alternate Payee.  The Administrator will promptly notify the Participant and each potential Alternate Payee (specified in the written notice as entitled to a payment of benefits under this Plan) of receipt of the notice. The Administrator will provide a copy of the QDRO Procedures with the notification.

(b)   Actions Relating to Participant’s Account.  If the Participants benefit under this Plan is not in pay status, the Administrator will take any actions as the Administrator deems necessary to maintain the status of the Participants Individual Account, including, but not limited to, the suspension of the Participants right to distributions or to take loans from this Plan.  If this Plan does not receive an Order within 90 days after receiving the notice, the Administrator will revoke any actions taken under these QDRO procedures, including canceling the suspension of the Participants right to distributions or loans, and will administer this Plan as if the Administrator had not received the notice.  If the Administrator receives a subsequent written notice before or after the expiration of the 90-day period, and the Participants Individual Account under this Plan is not in pay status, the Administrator may apply the suspension provisions with respect to the subsequent notice.  If this Plan receives an Order relating to the Participants Individual Account under this Plan within 90 days after receiving the notice, the Administrator will proceed to determine the qualified status of the Order.  If the Participants Individual Account under this Plan is in pay status, the Administrator will take no action to suspend distributions or loans or otherwise to maintain the status of the Participants Individual Account until the Administrator receives an Order.

10.6     Receipt of Order

When this Plan receives an Order that purports to be a QDRO, the following will apply.

(a)   Notification of Receipt of Order.  The Administrator will promptly notify the Participant and each Alternate Payee (specified in the Order as entitled to a payment of benefits under this Plan) of the receipt of the Order. The Administrator will provide a copy of the QDRO Procedures to the Participant and to each Alternate Payee with the notification.

(b)   Review of Order.  The Administrator will review the Order and may request that its legal counsel review the Order to determine whether the Order is qualified. The determination of whether the Order is a QDRO will be made within a reasonable period after receipt of the Order.

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(c)   Notice of Determination.  The Administrator will promptly notify in writing the Participant and each Alternate Payee (specified in the Order as entitled to a payment of benefits under this Plan) of the determination of the qualified status of the Order.

10.7     Requirements of a Qualified Order

An Order will be determined to be qualified if the Administrator determines that it meets the requirements of a qualified Order under ERISA Section 206(d)(3) and Code Section 414(p), which include the following.

(a)   Valid Domestic Relations Order.  The Order is a valid domestic relations order issued by a state authority. The Order creates or recognizes the existence of an Alternate Payees right, or assigns to an Alternate Payee the right, to receive all or a portion of the Account Balance payable with respect to the Participant under this Plan.

(b)   No Prohibited Benefits or Options.  The Order does not require this Plan to provide any type or form of benefit, or any option, not otherwise provided under this Plan. The Order does not require this Plan to provide increased benefits (determined on the basis of actuarial value). The Order does not require the payment of benefits to an Alternate Payee which are required to be paid to another Alternate Payee under another Order previously determined to be a QDRO.

(c)   Timing and Subsequent Orders.  Subject to the other requirements of the QDRO Procedures, an Order will not fail to be treated as qualified solely because of the time at which it is issued or solely because the Order is issued after, or revises, another Order or QDRO (but only if the Order does not assign benefits that are assigned to another Alternate Payee under another QDRO).

(d)   Required Information.  The Order must clearly specify the following information:

(i)        Name and Address. The name and last known mailing address of the Participant and of each Alternate Payee covered by the Order.

(ii)       Amount of Benefits. The amount or percentage of the Participants Account Balance to be paid by this Plan to each Alternate Payee, or the manner in which the amount or percentage is to be determined, including whether the amount of the Alternate Payees benefit includes a corresponding share of the Participants Account Balance earnings and losses from the date that serves as the measurement for determining the amount of the Alternate Payees benefit.

(iii)      Number of Payments or Time Period. The number of payments or the period to which the Order applies.

(iv)      Identification of Plan. The name of each plan to which the Order applies.

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10.8     Participants Account During Determination Period

During the period that the qualified status of the Order is being determined (Determination Period), the following will apply with respect to the Participants Individual Account under this Plan.

(a)   Separate Accounting.  During the Determination Period, the Administrator will separately account for the amounts that would have been payable currently to the Alternate Payee during the Determination Period if the Order had been determined to be a QDRO. The Administrator will not separately account for amounts that would not otherwise be payable currently to the Alternate Payee during the Determination Period.  The Administrator will preserve the amount, if any, subject to separate accounting, for not longer than an 18-month period beginning on the later of: (1) the date of receipt of the Order; or (2) the first date on which a payment would be required to be made under an Order. If it is determined that the Order is not a QDRO, or if the determination as to the qualified status of the Order is not made or otherwise resolved within the 18-month period, the Administrator will pay the amounts (including any earnings or losses) to whomever would have been entitled to the amounts if there had been no Order unless there is a cure period in effect under ARTICLE IX of these QDRO Procedures. Any determination that the Order is a QDRO after the 18-month period will be applied prospectively only.

(b)   Suspension of Participant Distributions and Loans.  The Administrator will take steps to provide that amounts that would have been payable to the Alternate Payee, if the Order were a QDRO, are not distributed to the Participant or any other person during the Determination Period. If the Participant is receiving distributions from this Plan at the time of receipt of the Order, the Administrator will suspend distributions to the Participant to the extent the Administrator deems necessary to comply with the Order should the Administrator eventually determine that the Order is a QDRO. The Administrator will suspend the Participants right to take loans during the Determination Period.

(c)   Death of Participant or Alternative Payee. An Order will not fail to be a QDRO merely because it was issued after the death of the Participant or Alternate Payee. If the Alternate Payee dies before receiving benefits from this Plan, and the Alternate Payee has not designated a beneficiary, the Alternate Payees benefit payments, if any, shall be paid in accordance with the distribution provisions of this Plan treating the Alternate Payee as if the Alternate Payee were the Participant for purposes of determining who is entitled to benefit payments upon the Alternate Payees death.

(d)   Participant-Directed Investments.  This Plan will continue to permit the Participants investment directions during the Determination Period.

10.9     Determination That Order Is Not a QDRO

If the Administrator determines that the Order is not qualified, the following will apply.

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(a)   Written Notice of Adverse Decision.  The Administrator will provide a written notice to the Participant and each Alternate Payee of the adverse decision and will include the following in the notice: (1) the reasons for the adverse decision; (2) specific references to this Plan provisions on which the Administrators determination is based; (3) an explanation of any time limits that apply to appeal rights available to the parties under this Plan; and (4) a description of any additional material, information, or modifications necessary for the Order to be determined to be qualified. The Administrator will include a copy of this Plans claims procedures with the written notice of an adverse decision.

(b)   Review of Adverse Determination.  If either party specified in the Order wishes a review of the adverse determination, the party must follow this Plans claim procedures, including adhering to any relevant time limitations.

(c)   Procedures During Period of Curing Defects.  If the Administrator determines that the Order is not a QDRO within the 18-month period described these QDRO procedures, the Administrator may continue to delay distribution of any benefits subject to the Order if the Administrator has reason to believe that a party will seek to cure the defects in the Order. The Administrator may continue to delay distribution so long as the Administrator determines a delay is necessary to fulfill the Administrators fiduciary duties under this Plan, but no longer than the end of the 18-month period.

10.10   Determination That Order Is a QDRO

If the Administrator determines that the Order is qualified, the following will apply.

(a)   Notice of Determination.  The Administrator will provide a written notice to the Participant and each Alternate Payee of the determination that the Order is a QDRO.

(b)   Alternate Payees Benefit.  Unless the Order specifies otherwise, this Plan will establish and maintain a separate recordkeeping account for each Alternate Payee until this Plan has completed the payment of benefits under the QDRO. If the QDRO requires immediate payment, this Plan will pay the designated benefits, including, if applicable, any earning or loss adjustments that are payable to the Alternate Payee, as soon as administratively feasible.  The Alternate Payees benefit will be taken proportionately from each investment in the Participants  Individual Accounts and will be invested according to the Alternate Payees investment directions or, in the absence of the Alternate Payees direction, this Plans default investment rules. None of any outstanding loan balance, however, will be allocated to the Alternate Payees account. Pro rata earnings and losses will be allocated to the Alternate Payee for the period between the date specified in the QDRO for determining the Alternate Payees benefit and the date of transfer under this ARTICLE X. The Participant will direct investment of the Alternate Payees benefit if the QDRO provides that no separate account be established.  The provisions of this Plan applicable to Participants will apply to the Alternate Payee.  Any expenses that are charged

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against Participants Individual Accounts generally (for example, investment fees) will be charged against the Alternate Payees separate account, if applicable. 

(c)   Participants Beneficiary Designation.  The Participants beneficiary designation of the Alternate Payee as the Participants beneficiary, if applicable, will not be effective after the date that the Order is determined to be qualified unless the Participant executes a new beneficiary designation after that date that designates the Alternate Payee as the Participants named beneficiary.

ARTICLE XI
The Committee

11.1     Committee Appointment

The Board of Directors of the Plan Sponsor (or a committee thereof) will appoint the Committee consisting of three or more members. The Board of Directors may remove any member of the Committee at any time and a member may resign by written notice to the Board of Directors. Any vacancy in the membership of the Committee will be filled by appointment made by the Board of Directors, but pending the filling of any vacancy, the then members of the Committee may act under this Plan as though they alone constitute the full Committee. The Plan Sponsor will notify the Trustee promptly of the appointment of the Committee and of any change in the membership of the Committee. Upon the termination of the employment of a Committee member with the Employer and all Related Employers, his or her membership on the Committee will be deemed to be resigned effective as of the date on which the member’s employment is terminated.

11.2     Committee Action and Procedure

(a)   Any and all acts and decisions of the Committee will be by at least a majority of the then members. The Committee may delegate to any one or more of its members the authority to sign notices or other documents on its behalf or to perform ministerial acts for it, in which event the Trustee and any other person may accept the notice, document or act without question as having been authorized by the Committee.

(b)   The Committee may, but need not, call or hold formal meetings, and any decisions made or actions taken pursuant to written approval of a majority of the then members will be sufficient.

(c)   The Committee will maintain adequate records of its decisions, which records will be subject to inspection by the Employer and by any Participant, Former Participant, or Beneficiary, but only to the extent that they apply to the individuals.

(d)   The Committee may designate one of its members as chairman and one of its members as secretary and may establish policies and procedures governing it if they are consistent with this Plan.

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11.3     Committee Powers and Duties

The Committee will perform the duties and may exercise the powers and discretion given to it in this Plan, and its decisions and actions will be final and conclusive regarding all persons affected thereby. The Committee will exercise its discretion at all times in a nondiscriminatory manner. Subject to any limitations stated in this Plan, the Committee is authorized and empowered with the following powers, rights, and duties:

(a)   To determine the rights of eligibility of an Employee to participate in this Plan, the value of a Participant’s Account Balance, and the Nonforfeitable percentage of each Participant’s Individual Accounts;

(b)   To adopt rules of procedure and regulations necessary for the proper and efficient administration of this Plan provided the rules are consistent with the terms of this Plan;

(c)   To construe and enforce the terms of this Plan and the rules and regulations it adopts, including interpretation of this Plan documents and documents related to this Plan’s operation;

(d)   To direct the Trustee concerning the crediting and distribution of the Trust Fund;

(e)   To review and render decisions respecting a claim for, or denial of a claim for, a benefit under this Plan;

(f)   To furnish the Employer with information that the Employer may require for tax or other purposes;

(g)   To engage the service of agents whom it may deem advisable to assist it with the performance of its duties;

(h)   To engage the services of an Investment Manager or Managers (as defined in ERISA Section 3(38)), each of whom will have full power and authority to manage, acquire or dispose, or direct the Trustee with respect to acquisition or disposition, of any Plan asset under its control; and

(i)   To establish, in its sole discretion, a nondiscriminatory policy, pursuant to this Section, which the Trustee must observe in making loans, if any, to Participants and Beneficiaries.

11.4     Committee Reliance

The Trustee may rely without question on any notices or other documents received from the Committee. The Plan Sponsor and each Employer will furnish the Committee with all data and information available to the Employer, which the Committee may reasonably require to perform its functions under this Plan. The Committee may rely without question on any data or information furnished by the Plan Sponsor and each Employer.

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11.5     Committee Authority

Any and all disputes that may arise involving Participants, Former Participants, Beneficiaries, and/or the Trustee will be referred to the Committee, and its decisions will be final and conclusive regarding all affected persons. Furthermore, if any issue arises concerning the meaning, interpretation or application of any provisions of this Plan, the decision of the Committee on any issue will be final.

11.6     Conflicts of Interest

Notwithstanding any other provisions of this Plan, no member of the Committee may vote or otherwise act on any matter involving the Committee member’s rights, benefits, or other participation under this Plan.

11.7     Appointment of Agent and Legal Counsel

The Committee may engage agents to assist it and may engage legal counsel who may be counsel for the Plan Sponsor. All reasonable expenses incurred by the Committee will be paid by the Plan Sponsor.

11.8     Annual Accounting

As soon as administratively feasible after the last day of each Plan Year, but within the time prescribed by ERISA and the applicable Labor Regulations and at least annually, the Committee will advise each Participant, Former Participant, and Beneficiary for whom Individual Accounts are held under this Plan of the then balance in the Participant’s Individual Accounts and the other information ERISA requires to be furnished. No Participant except a member of the Committee will have the right to inspect the records reflecting the Individual Accounts of any other Participant.

11.9     Funding Policy

The Committee will review, not less often than annually, all pertinent Employee information and Plan data to establish the funding policy of this Plan and to determine the appropriate methods of carrying out this Plan’s objectives. The Committee must communicate periodically, as it deems appropriate, to the Trustee this Plan’s short-term and long-term financial needs so the investment policy can be coordinated with Plan financial requirements.

ARTICLE XII
Administration

12.1     Administrator Appointment

The Committee will be the Administrator of this Plan and will be responsible for filing all reporting and disclosure documents required by the Department of Labor and the Internal Revenue Service in accordance with ERISA, the Code, and the respective regulations.

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Service of process on this Plan or Trust Fund may be obtained by personal service on the Employer or any Committee member.

12.2     Copies of Additional Documents

Upon written request from a Participant or Beneficiary receiving benefits, the Administrator will furnish a copy of any one (1) or all of the following documents: the latest updated summary plan description, the latest annual report, any terminal report, Trust agreement, contract or other instruments under which this Plan was established or is operated. The Administrator may make a reasonable charge to cover the cost of furnishing complete copies.

12.3     Documents Available for Examination

Copies of this Plan description and the latest annual report, Trust agreement, contract or other instruments under which this Plan was established or is operated will be available for examination at the principal office of the Employer by any Participant or Beneficiary receiving benefits. Examination may be made during reasonable hours in person or by agent, accountant, or attorney.

12.4     Notice of Participant Rights under ERISA

The Administrator will furnish to each Participant and to each Beneficiary receiving benefits information on their rights under this Plan and how the rights may be protected by law.

12.5     Notice to Participant on Participant Termination

The Administrator will furnish a statement to a Participant who terminated Service with the Employer for any of the reasons set forth in ARTICLE V, through ARTICLE VIII, describing the nature, amount and form of the Nonforfeitable Account Balance, if any, to which the Participant is entitled as soon as administratively feasible after the close of the Plan Year in which the Participant terminated Service.

12.6     Notice to Trustee on Participant Termination

(a)   As soon as practicable after a Participant terminates employment with the Employer for any of the reasons set forth in ARTICLE IV, the Administrator will give written notice to the Trustee, including the following information and directions that may be necessary or advisable under the circumstances:

(i)        Name and address of the Participant;

(ii)       Reason the Participant terminated employment with the Employer;

(iii)      Name and address of the Beneficiary or Beneficiaries of a deceased Participant;

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(iv)      Nonforfeitable percentage or amount to which the Participant is entitled as of his Severance from Employment Date pursuant to ARTICLE VI; and

(v)

Time, manner, and amount of payment to be made pursuant to the Participant’s election under ARTICLE VIII.

 

If a Former Participant or Beneficiary dies, the Administrator will give like notice to the Trustee, but only if the Administrator learns of the death.

(b)   At any time and from time to time after giving the notice provided under this Section, the Administrator may modify the original notice or any subsequent notice by a further written notice or notices to the Trustee, but any action taken or payments made by the Trustee pursuant to a prior notice will not be affected by a subsequent notice.

(c)   A copy of each notice provided under this Section will be mailed by the Administrator to the Participant, Former Participant, or Beneficiary involved, but the failure to send or receive the copy will not affect the validity of any action taken or payment made pursuant thereto.

(d)   Upon receipt of any notice provided under this Section, the Trustee will promptly take any action and make any payments directed in the notice. The Trustee may rely on the information and directions in the notice absolutely and without question. However, the Trustee may inform the Administrator of any error or oversight that the Trustee believes to exist in any notice.

12.7     Claims for Benefits

Normally, whenever a Participant or Beneficiary becomes entitled to benefits under this Plan, the Administrator and the Trustee will automatically initiate procedures to provide for the payment of the benefits. If a Participant or Beneficiary believes that he or she is entitled to the payment of benefits under this Plan and no action is forthcoming from the Administrator or the Trustee, then the Participant or Beneficiary may file a written claim for benefits with the Administrator or the Trustee.

12.8     Appeals of Decisions of the Committee

(a)   If any Participant or Beneficiary (“Claimant”) files a claim for benefits under this Plan and the claim is denied in whole or in part, the Administrator will give notice of the decision to the Claimant in writing setting forth:

(i)        The specific reasons for the denial;

(ii)       A specific reference to pertinent provisions of this Plan, if any, upon which the denial is based;

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(iii)      A description of any additional material or information necessary for the Claimant to perfect the claim with an explanation of the necessity therefor; and

(iv)      That any appeal the Claimant wishes to make of the adverse determination must be in writing to the Administrator within 60 days after receipt of the Administrator’s notice of denial of benefits. The Administrator’s notice must further advise the Claimant that failure to appeal the action in writing within the 60 day period will render the Administrator’s determination final, binding and conclusive.

(b)   The written notice will be given to the Claimant as soon as administratively feasible after the decision is made, but not later than 60 days after the claim is filed. The Claimant will have the right to be represented, to review pertinent documents and to present written and oral evidence.

(c)   If the Claimant should appeal to the Administrator, the Claimant or the duly authorized representative, may submit, in writing, issues and comments the Claimant or the duly authorized representative considers pertinent. The Administrator will render the decision on the review and will set forth the specific reasons for the decision with specific references to pertinent provisions. The Administrator will render the decision in writing within 60 days after receipt of the request for review unless special circumstances, such as the need for a hearing, require an extension that will not exceed an additional 60 days.

12.9     Special Rules for Disability Claims

Notwithstanding Sections 12.7 and 12.8 above, the following rules and procedures will apply to claims and appeals arising on account of a Participant’s Disability.

(a)   Disability Benefit Claims. The Administrator will review all claims for Disability benefits, and will notify the Claimant of any adverse benefit determination within a reasonable period of time, but generally no later than 45 days after receipt of the claim by this Plan. Such notice will contain the information required under Section 12.8(a) above.

(i)        This initial 45-day period may be extended up to an additional 30 days, where the Administrator determines that the extension is necessary due to matters beyond the control of this Plan. The Administrator will notify the Claimant of any extension before the expiration of the initial 45-day period. This notice will indicate the special circumstances requiring an extension and the date by which the Administrator expects to render a decision. This notice will also specifically explain the standards on which entitlement to a claim is based, the unresolved issues that prevent a decision, and any additional information needed to resolve these issues. Where the Administrator determines that a second 30-day extension is necessary due to matters beyond the control of this Plan, a similar

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extension notice will be provided to the Claimant before the end of the first 30-day extension period.

(ii)       The Claimant will have an additional 45 days from receipt of an extension notice to provide any additional specified information. The period for making the benefit determination will be suspended until the Claimant provides this information. A Claimant’s failure to respond to a request for additional information within 45 days, however, will lead to an adverse determination on his or her claim.

(b)   Disability Benefit Appeals. A Claimant may file an appeal of an adverse determination on a Disability benefit claim within 180 days following receipt of a notification of the adverse determination.

(i)        The review will not afford deference to the initial adverse determination, and the review will be conducted by an appropriate Named Fiduciary of this Plan who is neither the individual who made the initial adverse determination, nor that individual’s subordinate.

(ii)       In deciding the appeal of any adverse determination that is based in whole or in part on medical judgment, the appropriate Named Fiduciary will consult with a health care professional who has appropriate training and experience in the field of medicine involved in the medical judgment. The health care professional engaged for this purpose will be an individual who was neither consulted in connection with the initial adverse determination, nor any subordinate of such person. The Named Fiduciary will identify any medical or vocational experts whose advice was obtained in connection with a Claimant’s adverse determination, without regard to whether the advice was relied upon in making the benefit determination.

(iii)      The Claims Administrator will notify the claimant of its benefit determination in writing within a reasonable period following receipt of the claimant’s request for review, but no later than 45 days after receipt of the Claimant’s appeal.

ARTICLE XIII
Investment of Trust Assets

13.1     Appointment of Trustee

The Plan Sponsor will determine the number of Trustees, will appoint such Trustees, and may at any time, and from time to time, increase or decrease the number of Trustees. The Plan Sponsor may remove any Trustee at any time and appoint a successor Trustee or Trustees or reduce the number of Trustees (but not to less than one). The Trustee or Trustees will have such rights, powers, and duties as will from time to time be specified in or determined pursuant to the Trust Agreement. The Trust Agreement will form a part of this Plan, and the Trust Fund assets will be administered in accordance with the terms of this Plan and the Trust Agreement.

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13.2     Investment of Accounts

(a)   All Individual Accounts will be invested and reinvested by the Trustee in accordance with Participant direction, as provided herein.

(i)        Each Participant, in his written application for participation or through such other means as may be authorized by the Administrator, if any, will direct the Administrator and the Trustee as to which Investment Fund(s) he wishes to utilize and the percentage of his Individual Accounts he wishes to have invested in each fund.

(ii)       A Participant may change his designation of the manner for investment of such Participant’s Individual Accounts, or current contributions made on behalf of or by the Participant, or both, to any other manner permitted hereunder. This change may be made in writing to the Administrator or through such other means as may be authorized by the Administrator, if any. A change will be applicable as soon as administratively feasible following its delivery to the Trustee. In order to comply with applicable federal or state securities laws, the Administrator may establish such rules with respect to the change of investment designation by Participants as it will deem necessary or advisable to prevent possible violations of such laws.

(iii)      To the extent a Participant fails to direct the investment of all or any portion of his or her Individual Accounts, the Administrator will direct the Trustee to invest such Individual Accounts in one of the Investment Funds available for the Participants to choose among, in accordance with applicable Labor Regulations.

The Administrator may permit a Participant to make an election under this Section through any electronic or telephonic means authorized by the Administrator.

(b)   Investment Funds. The Administrator will select the “Investment Funds” available under this Plan in accordance with a separate written investment policy. The Administrator will select and maintain such Investment Funds in accordance with the Administrator’s written investment policy. Such Investment Funds will be communicated to Participants in writing. All Individual Accounts will be allocated by the Administrator to the Investment Funds specified in the separate written investment policy. Dividends, interest, and other distributions will be reinvested in the same Investment Fund from which they are received.

Except as otherwise provided, the assets of each Investment Fund will be invested exclusively in shares of the registered investment company designated by the Administrator, provided that such shares constitute securities described in ERISA Section 401(b)(1). Amounts invested in any such Investment Fund in amounts estimated by the Trustee to be needed for cash withdrawals, or in amounts too small to be reasonably invested, or in amounts that the Trustee deems to be in the best

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interest of the Participants, may be retained by the Trustee in cash or invested temporarily.

(c)   Investment in Sonic Stock Fund.  In addition to the investment funds designated under subsection (b) above, this Plan shall maintain the Sonic Stock Fund as an investment fund within this Plan.  The Sonic Stock Fund will invest solely in Sonic Stock.  Sonic Stock is currently traded on the over-the-counter market with price quotations reported on the NASDAQ National Market System under the symbol SONC.  No Participant shall be allowed to direct more than twenty-five percent (25%) of each single Salary Deferral Contribution or Catch-Up Contribution to be in invested in the Sonic Stock Fund.  Subject to the preceding sentence, a Participant shall be allowed to direct the Trustee to transfer amounts into and out of the Sonic Stock Fund without restriction.

The accounting methods or formulae to be used under this Plan for the purpose of maintaining a Participant’s Account Balance with respect to any portion thereof invested in the Sonic Stock Fund shall be determined by the Committee and shall be based upon the unit accounting method, whereby all Plan assets in the Sonic Stock Fund are carried as units, as opposed to actual shares of Sonic Stock.  Thus, Participants shall not have any individual Sonic Stock allocated to their Account Balances, but rather they shall be allocated an undivided percentage interest, denominated in units, in the entire Sonic Stock Fund, representing the portion of the Sonic Stock Fund allocated to their Account Balances.  The accounting methods or formulae selected by the Committee may be revised from time to time in order to accomplish the foregoing purposes, but shall at all times conform to the general principles in this subsection 13.2(c).

13.3     Income and Expenses

(a)   The dividends, capital gains distributions, and other earnings received on an Investment Fund that is specifically credited to a Participant’s or Former Participant’s separate Individual Accounts under this Plan will be allocated to such separate Individual Accounts and immediately reinvested, to the extent practicable, in additional shares of such Investment Fund.

(b)   Fees charged by the Trustee and other expenses of operating the Trust will be paid by the Employers or, in the absence of such payments (that are not obligatory), out of the general Trust Fund assets and charged to the separate Individual Accounts of all Participants and Former Participants under this Plan in the ratio that the fair market value of each such Individual Account bears to the total fair market value of all separate Individual Accounts; provided, however, that such amounts will be adjusted to reflect any revenue sharing payments received from an Investment Fund.

13.4     Exclusive Benefit

The Plan and the Trust Fund are established and will be maintained for the exclusive benefit of the Participants, Former Participants, and their Beneficiaries. Subject to the

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exceptions expressly set forth in this Plan or the Trust Agreement, no part of the Trust Fund assets may ever revert to an Employer or be used for or diverted to purposes other than the exclusive benefit of the Participants, Former Participants, and Beneficiaries.

13.5     Valuation

The value of each Participant’s Individual Accounts will be determined as of each Valuation Date, on the basis of the fair market value of the assets allocated to each such Participant’s Individual Accounts, as appraised by the Trustee.

(a)   As of each Valuation Date, the Administrator will determine the fair market value of each Investment Fund being administered by the Trustee. With respect to each such Investment Fund, the Administrator will determine (i) the change in value between the current Valuation Date and the then last preceding Valuation Date, (ii) the net gain or loss resulting from expenses paid (including fees and expenses, if any, which are to be charged to such Investment Fund), and (iii) realized and unrealized gains and losses.

The transfer of funds to or from an Investment Fund and payments, distributions, and withdrawals from an Investment Fund to provide benefits under this Plan for Participants or Beneficiaries will not be deemed to be gains, expenses, or losses of an Investment Fund.

As of each Valuation Date, the Administrator will direct the Trustee to allocate the net gain or loss of each Investment Fund on the Valuation Date to the Individual Accounts of Participants participating in such Investment Fund on such Valuation Date. Contributions and rollovers received and credited to Participants’ Individual Accounts as of such Valuation Date, or as of an earlier date since the last preceding Valuation Date will not be considered in allocating gains or losses allocated to Participants’ Individual Accounts.

(b)   The reasonable and equitable decision of the Administrator as to the value of each Investment Fund, and of any Individual Account as of each Valuation Date will be conclusive and binding upon all persons having any interest, direct or indirect, in the Investment Funds or in any account.

13.6     Investment Policy

The Trustee will be obliged only to use good faith and to exercise its honest judgment as to what investments are from time to time in the best interests of the Trust Fund and the Participants and their Beneficiaries. Furthermore, the Trustee may hold any portion of the Trust Fund in cash and uninvested whenever it deems such holding necessary or advisable.

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ARTICLE XIV
Participant Loans

14.1     General

Unless otherwise provided by the Administrator, this Plan authorizes the Trustee to make loans on a nondiscriminatory basis to a Participant or Beneficiary in accordance with the written loan policy established by the Administrator, provided (i) the loan policy satisfies the requirements of Code Section 72(p); (ii) loans are available to all Participants and Beneficiaries on a reasonably equivalent basis and are not available in a greater amount for Highly Compensated Employees than for other Employees; (iii) any loan is adequately secured and bears a reasonable rate of interest; (iv) the loan provides for repayment within a specified time; (v) the default provisions of the note prohibit offset of the Participant’s Nonforfeitable Account Balance prior to the time the Trustee otherwise would distribute the Participant’s Nonforfeitable Account Balance; and (vii) the loan otherwise conforms to the exemption provided by Code Section 4975(d)(1).

14.2     Loan Policy

If the Administrator adopts a loan policy, pursuant to Sections 11.3(i) and 14.1, the loan policy must be a written document and must include (i) the identity of the person or positions authorized to administer the Participant loan program; (ii) a procedure for applying for the loan; (iii) the criteria for approving or denying a loan; (iv) the limitations, if any, on the types and amounts of loans available; (v) the procedure for determining a reasonable rate of interest; (vi) the types of collateral that may secure the loan; and (vii) the events constituting default and the steps this Plan will take to preserve Plan assets in the event of default. This Section specifically incorporates any written loan policy adopted by the Administrator as part of this Plan.

14.3     Special Rules under USERRA for Loan Repayments.

Loan repayments will be suspended under this Plan, as permitted under Code Section 414(u)(4), on behalf of those Participants who are on an authorized leave of absence pursuant to qualified military service.

ARTICLE XV
Rollovers, Mergers, and Direct Transfers

15.1     Participant Rollover Contributions

Any Participant who has the Administrator’s written consent and who has filed with the Trustee the form prescribed by the Administrator may contribute cash or other property to the Trust other than as a voluntary contribution if the contribution is a Rollover Contribution that the Code permits an Employee to transfer either directly or indirectly from one qualified plan to another qualified plan. Before accepting a Rollover Contribution, the Trustee may require an Employee to furnish satisfactory evidence that the proposed transfer is in fact a Rollover Contribution that the Code permits an

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Employee to make to a qualified plan. A Rollover Contribution is not an Annual Addition for purposes of Code Section 415.

An Eligible Employee, prior to satisfying this Plan’s conditions, may make a Rollover Contribution to the Trust Fund to the same extent and in the same manner as a Participant. If an Employee makes a Rollover Contribution to the Trust Fund prior to satisfying this Plan’s eligibility conditions, the Administrator and Trustee must treat the Eligible Employee as a Participant for all purposes of this Plan except the Eligible Employee is not a Participant for purposes of sharing in Employer contributions or Forfeitures under this Plan until the Eligible Employee actually becomes a Participant in this Plan. If the Eligible Employee has a Severance from Employment Date prior to becoming a Participant, the Trustee will distribute the Rollover Account to the individual.

For any Rollover Contribution, the following requirements will be met:

(a)   The Administrator will maintain a Participant’s Rollover Contributions in a separate Rollover Account.

(b)   Except with respect to a Plan asset properly subject to Employer, Participant, or Administrator direction of investment, the Trustee will invest the Rollover Contribution in a segregated investment Rollover Account for the Participant’s sole benefit unless the Trustee, in its sole discretion, agrees to invest the Rollover Contribution as part of the Trust Fund. The Trustee will not have any investment responsibility for a Participant’s segregated Rollover Account. The Participant, however, from time to time, may direct the Trustee in writing on the investment of the segregated Rollover Account in an Investment Fund. A Participant’s segregated Rollover Account alone will bear any extraordinary expenses resulting from investments made at the direction of the Participant. As of the Valuation Date, the Administrator will allocate and credit the net income or charge the net loss from a Participant’s segregated Rollover Account and credit or charge respectively the increase or decrease in the fair market value of the assets of a segregated Rollover Account solely to that Rollover Account. The Trustee is not liable nor responsible for any loss resulting to any Beneficiary, nor to any Participant, because of any sale or investment made or other action taken pursuant to and in accordance with the direction of the Participant. In all other respects, the Trustee will hold, administer, and distribute a Rollover Contribution in the same manner as any Employer contribution made to the Trust Fund.

(c)   A Participant’s Rollover Contributions will not be forfeitable nor reduce in any way the obligations of the Employer under this Plan.

15.2     Mergers and Direct Transfers

To the extent directed by the Administrator, 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 Section 401(a), and to accept the direct transfer of Plan assets or to transfer plan assets, as a party to any agreement. Further, the Trustee

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may permit the transfer of Plan assets to an individual retirement account or an individual retirement annuity. However, the Trustee, before any merger or direct transfer is consummated, will be satisfied that the holding of any transferred assets is permitted by the transferee trusts. In addition, the Trustee must reasonably determine, prior to permitting such a transfer, that the transferee plan will continue the distribution restrictions of Code Sections 401(k)(2) and 401(k)(10) on any transferred amounts that are attributable to Salary Deferral Contributions of Participants. When the Trustee is so satisfied, the Trustee will accept the direct transfer of plan assets or will cause to be transferred the assets directed to be transferred. The Trustee may accept a direct transfer of plan assets on behalf of an Employee prior to the date the Employee satisfies this Plan’s eligibility conditions. If the Trustee accepts a direct transfer of plan assets, the Administrator and Trustee must treat the Employee as a Participant for all purposes of this Plan except that the Employee is not a Participant for purposes of sharing in any Employer contributions or Forfeitures under this Plan until the Employee actually becomes a Participant in this Plan.

The Trustee may not consent to, or be a party to, any merger or consolidation with another plan or to a transfer of assets and liabilities to another plan, unless, immediately after the merger, consolidation or transfer the surviving plan provides each Participant a benefit equal to or greater than the benefit each Participant would have received had the plan terminated immediately before the merger, consolidation, or transfer.

15.3     Rules Concerning Certain Rollovers, Mergers, and Direct Transfers

The Trustee will hold, administer, and distribute the transferred assets as a part of the Trust Fund and the Trustee must maintain a separate Individual Accounts for the benefit of the Employees on whose behalf the Trustee accepted the transfer to reflect the value of the transferred assets.

The Plan will preserve all Code Section 411(d)(6) protected benefits with respect to those transferred assets, in the manner described in Section 9.2(c)(iii).

If this Plan receives a direct transfer, by merger or otherwise, of Salary Deferral Contributions, or amounts treated as Salary Deferral Contributions, under a plan with a Code Section 401(k) arrangement, the distribution restrictions of Code Sections 401(k)(2) and 401(k)(10) continue to apply to those transferred Salary Deferral Contributions.

ARTICLE XVI
Exclusive Benefit

16.1     Exclusive Benefit

Except as otherwise provided, no Employer will have a beneficial interest in any asset of the Trust Fund and no part of any asset in the Trust Fund may ever revert to or be repaid to an Employer, either directly or indirectly. Further, prior to the satisfaction of all liabilities with respect to the Participants and their Beneficiaries under this Plan, no part of the corpus or income of the Trust Fund, or any asset of the Trust Fund, may be used for, or diverted to, purposes other than the exclusive benefit of the Participants or their

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Beneficiaries. No amendment or revocation by the Administrator or Plan Sponsor of this Section may cause or permit any portion of the Trust Fund to revert to or become a property of the Employer.

16.2     Denial of Request for Approval

Any contribution to the Trust Fund associated with this Plan is conditioned on qualification of this Plan under applicable Code Sections and of the exemption of the Trust Fund created under this Plan under Code Section 501(a). If the Commissioner of the Internal Revenue Service, upon this Plan Sponsor’s request for approval of this Plan and Trust, determines that this Plan is not qualified or the Trust Fund is not exempt, then the Trustee may return to the Employer, within one (1) year after the date of final disposition of the Plan Sponsor’s request for initial approval, any contribution made by the Employer, and any increment attributable to the contribution.

16.3     Mistake of Fact    

Notwithstanding any contrary provision in this Plan, if a contribution is made by an Employer by a mistake of fact, the contribution may be returned to the Employer within one (1) year after the payment of the contribution. The amount of the mistaken contribution is equal to the excess of (i) the amount contributed over (ii) the amount that would have been contributed had there not occurred a mistake of fact. Earnings attributable to mistaken contributions may not be returned to the Employer, but losses attributable thereto will reduce the amount to be returned.

16.4     Disallowance of Deduction

Notwithstanding any contrary provision in this Plan, any contributions by the Employer to this Plan and Trust are conditioned on the deductibility of the contribution by the Employer under the Code. To the extent any deduction is disallowed, the Employer, within one (1) year following a final determination of the disallowance, whether by agreement with the Internal Revenue Service or by final decision in a court of competent jurisdiction, may demand repayment of the disallowed contribution, and the Trustee will return the contribution within one (1) year following the disallowance. Earnings attributable to excess contributions may not be returned to the Employer, but losses attributable thereto will reduce the amount to be returned.

16.5     Spendthrift Clause

Except as provided below, no Participant, Former Participant, or Beneficiary will have the right to anticipate, assign, or alienate any benefit provided under this Plan and the Trustee will not recognize any anticipation, assignment or alienation. Furthermore, a benefit under this Plan is not subject to attachment, garnishment, levy, execution, or other legal or equitable process. All provisions of this Plan will be for the exclusive benefit of those designated herein. These restrictions will not apply in the following case(s):

(a)   Distributions Pursuant to Qualified Domestic Relations Orders. The Administrator may direct the Trustee under the nondiscriminatory policy adopted by the

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Administrator to pay an Alternate Payee designated under a qualified domestic relations order as defined in Code Section 414(p) or any domestic relations order entered before January 1, 1985 if payment of benefits pursuant to the order has commenced as of that date. To the extent provided under a qualified domestic relations order, a former spouse of a Participant will be treated as the spouse or for all purposes of this Plan.

A domestic relations order that otherwise satisfies the requirements for a qualified domestic relations order will not fail to be qualified: (i) solely because the order is issued after, or revises, another domestic relations order; or (ii) solely because of the time at which the order is issued, including issuance after the Participant’s death.

(b)   Participant Loans. If a Participant, Former Participant, or Beneficiary who has become entitled to receive payment of benefits under this Plan is indebted to the Trustee, by virtue of a Participant loan, the Administrator may direct the Trustee to pay the indebtedness and charge it against the Account Balance of the Participant, Former Participant, or Beneficiary.

(c)   Distributions Under Certain Judgments and Settlements. Nothing contained in this Plan prevents the Trustee from complying with a judgment or settlement that requires the Trustee to reduce a Participant’s benefits under this Plan by an amount that the Participant is ordered or required to pay to this Plan if each of the following criteria are satisfied:

(i)        The order or requirement must arise –

(A)      Under a judgment or conviction for a crime involving this Plan;

(B)      Under a civil judgment (including a consent order or decree) entered by a court in an action brought in connection with an actual or alleged violation of Part 4 of Title I of ERISA; or

(C)      Under a settlement agreement with either the Secretary of Labor or the Pension Benefit Guarantee Corporation and the Participant in connection with an actual or alleged violation of Part 4 of Title I of ERISA by a fiduciary or any other person.

(ii)       The decree, judgment, order, or settlement expressly provides for the offset of all or part of the amount ordered or required to be paid to this Plan against the Participant’s benefits under this Plan.

16.6     Termination

Upon termination of this Plan, in lieu of the distribution provisions of ARTICLE VIII, the Administrator will direct the Trustee to distribute each Participant’s Nonforfeitable Account Balance, in a single sum, as soon as administratively feasible after the later of the termination of this Plan or the receipt of a favorable determination letter from the Internal Revenue Service, if an application is filed, irrespective of the present value of the

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Participant’s Nonforfeitable Account Balance and whether the Participant consents to that distribution. This paragraph applies only if:

(a)   The Plan does not provide an annuity option;

(b)   The Plan is a profit sharing plan on its termination date; and

(c)   As of the period between this Plan termination date and the final distribution of assets, the Employer does not maintain any other defined contribution plan (other than an employee stock ownership plan).

For Participants or Beneficiaries who cannot be located upon Plan termination, and whose Nonforfeitable Account Balance exceeds $1,000, to liquidate the Trust, the Trustee will purchase a deferred annuity contract, distribute the benefits to an individual retirement account, or transfer the account to an ongoing qualified plan of the Employer or a Related Employer. If the Administrator distributes the lost Participant’s or Beneficiary’s benefits to an individual retirement account or purchases an annuity, and the Participant’s or Beneficiary’s whereabouts remain unknown for the duration of the escheat period, the benefits will ultimately escheat to the state under applicable state law.

Notwithstanding the foregoing, distributions may not be made following termination of this Plan if the Plan Sponsor establishes or maintains an alternative defined contribution plan as described in Treasury Regulation Section 1.401(k)‑1(d)(4)(i).

ARTICLE XVII
Construction

17.1     Headings

The headings in this Plan are for convenience only and will not be considered in construing this Plan.

17.2     Context

In this Plan, wherever the context of this Plan dictates, words used in the masculine may be construed in the feminine, the plural includes the singular and the singular includes the plural.

17.3     Employment Not Guaranteed

Nothing contained in this Plan, or regarding the establishment of this Plan or Trust Fund, or any modification or amendment to this Plan or Trust Fund, or in the creation of any Individual Accounts, or the payment of any benefit, will be construed as giving any Employee, Participant, or Beneficiary any right to continue in the employment of the Employer, any legal or equitable right against the Administrator, against the Employer, its stockholders, officers, or directors, or against the Trustee, except as expressly provided by this Plan, the Trust Fund, ERISA, or by separate agreement. Employment of

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all persons by the Employer will remain subject to termination by the Employer to the same extent as if this Plan had never been executed.

17.4     Waiver of Notice

Any person entitled to notice under this Plan may waive the notice unless the Code or Treasury Regulations prescribe the notice or ERISA specifically or impliedly prohibits a waiver.

17.5     State Law

This Plan and each of its provisions will be construed and their validity determined by the laws of the State of Oklahoma and applicable Federal law to the extent Federal statute supersedes Oklahoma law.

17.6     Parties Bound

This Plan will be binding on all persons entitled to benefits under this Plan, their respective heirs and legal representatives, on the Employer, its successors and assigns, and on the Trustee, the Administrator, and their successors.

17.7     Severance

If any provisions of this Plan will be invalid or unenforceable, the remaining provisions will continue to be fully effective.

17.8     Qualified Military Service

Notwithstanding any provision of this Plan to the contrary, contributions, benefits, and Service credits, with respect to qualified military service, will be provided in accordance with Code Section 414(u).

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            IN WITNESS WHEREOF, the Plan Sponsor, SONIC CORP., has caused this instrument to be executed on this _____ day of ________ 2012, to be effective as of the 1st day of January 1, 2013.

 

SONIC CORP.

 

By: ______________________________________

 

Title: _____________________________________

 

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Exhibit A

 

If approved by the Employer, Nonelective Contributions pursuant to Section 3.5 of the Plan shall be made in accordance with the benefit level of the eligible Participant, as designated in the records of the Employer’s People Department, as follows:

 

Benefit Level

Amount of Contribution

I

$350

II

$875

III

$1,750

 

 

 

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