EX-4.1 4 w88510exv4w1.txt COTT USA 401(K) SAVINGS & RETIREMENT PLAN Exhibit 4.1 THE RESTATED COTT USA 401(k) SAVINGS & RETIREMENT PLAN As Restated and Amended Effective January 1, 1997 THE RESTATED COTT USA 401(k) SAVINGS & RETIREMENT PLAN WHEREAS, effective January 1, 1995, BCB USA Corp. (formerly named, Cott Beverages USA, Inc.) (the "Employer") established the Cott USA 401(k) Savings & Retirement Plan and Trust (the "Plan"), a profit sharing plan containing a section 401(k) cash or deferred feature; WHEREAS, under Article 16 of the Plan, the Employer reserved the right to amend the provisions of the Plan; WHEREAS, the Small Business Job Protection Act of 1996 and subsequent legislation and regulations ("employee benefit changes") have made numerous changes to the rules governing all qualified plans, including section 401(k) plans, thereby requiring all qualified plans to be amended to reflect these changes in order for such plans to retain their tax-qualified status; WHEREAS, the Internal Revenue Service has extended the "remedial amendment period" for plans to be amended to comply with the employee benefit changes through the last day of the first plan year beginning after December 31, 2000; and WHEREAS, in light of the amendments that have previously been made to the Plan, the need to amend the Plan to comply with the employee benefit changes, and the desire of the Employer to convert from a non-standardized prototype to an individually designed plan document, it has been decided to amend and entirely restate the Plan. -i- NOW, THEREFORE, except as otherwise provide in the Plan, effective January 1, 1997, the Plan is hereby amended and restated as set forth herein. -ii- TABLE OF CONTENTS THE RESTATED COTT USA 401(k) SAVINGS & RETIREMENT PLAN I. DEFINITIONS II. ELIGIBILITY AND PARTICIPATION III. CONTRIBUTIONS IV. STATUTORY LIMITATIONS ON CONTRIBUTIONS V. INVESTMENT OF TRUST ASSETS VI. VALUATION OF TRUST ASSETS VII. DISTRIBUTION OF ACCOUNT BALANCES VIII. DESIGNATION OF BENEFICIARY IX. LOANS X. TOP HEAVY RULES XI. ADMINISTRATION OF THE PLAN XII. THE TRUST FUND XIII. AMENDMENT, TERMINATION AND DISCONTINUANCE OF CONTRIBUTIONS XIV. MISCELLANEOUS ARTICLE I DEFINITIONS 1.1 "Account Balance" shall mean the sum of the account balances in the Participant's Salary Deferral Account, Matching Account, Employer Account and Rollover Account. 1.2 "Adjusted Compensation" shall mean wages within the meaning of Section 3401(a) of the Code (without regard to any rules under Section 3401(a) that limit the remuneration included in wages based on the nature or location of the employment or services performed) received by an Employee during a Plan Year and all other payments of compensation to the Employee during the Plan Year for which the Employer is required to furnish a written statement under Sections 6041(d), 6051(a)(3) and 6052 of the Code. 1.3 "Adjustment Factor" shall mean the cost of living adjustment factor prescribed by the Secretary of the Treasury under Section 415(d) of the Code, as applied to such items and in such manner as the Secretary shall provide. 1.4 "Affiliate" shall mean any corporation which is a member of a controlled group of corporations (as defined in Section 414(b) of the Code) which includes the Employer; any trade or business (whether or not incorporated) which is under common control (as defined in Section 414(c) of the Code) with the Employer; and any organization (whether or not incorporated) which is a member of an affiliated service group (as defined in Section 414(m) of the Code) which includes the Employer. 1.5 "Annual Additions" shall mean the total of all Salary Deferral Contributions, Matching Contributions and Employer Contributions credited to each Participant under this Plan for each Limitation Year. To the extent applicable, Annual Additions shall also include amounts I-1 described in Sections 415(l) and 419A(d)(2) of the Code. 1.6 "Beneficiary" shall mean the person, legal representative, estate or trust designated under Article VIII to receive payments on account of the death of the Participant. 1.7 "Code" shall mean the Internal Revenue Code of 1986, as amended. 1.8 "Committee" shall mean the Administrative Committee appointed by the Company which administers the Plan pursuant to Article XI. 1.9 "Company" shall mean BCB USA Corp., and any successors thereto; provided, however, that prior to January 24, 2000 "Company" shall mean Cott Beverages USA, Inc. 1.10 "Company Stock" shall mean the common stock of Cott Corporation, as traded on the NASDAQ National Market. 1.11 "Compensation" shall mean salary, wages, bonuses, overtime, gratuities, commissions and other remuneration received by a Participant for personal services actually rendered in the course of employment with the Employer during a Plan Year for the period of time during which he was a Participant during such Plan Year. Compensation shall include Salary Deferral Contributions hereunder, and any pre-tax salary reduction contributions under a Code Section 125 plan but shall exclude all other employer contributions to this Plan and to any other pension or profit sharing plan, or contributions made under any insurance or welfare plan, reimbursement or other expense allowances, moving expenses, fringe benefits, welfare benefits, car allowances and any employer contributions to the Cott Beverages USA, Inc. Employee Stock Purchase Plan. 1.12 "Disability" shall mean a physical or mental condition of a Participant which in the opinion of the Committee and based on medical evidence is believed to be permanent and to render the Participant unfit to perform the duties of an Employee, and for which he is either I-2 eligible for disability benefits under the Social Security Act or would have been eligible for disability benefits under the Social Security Act if he had satisfied the minimum employment requirements under such Act. In making its determination, the Committee may employ a doctor who is licensed and qualified to practice medicine in any state to examine the Participant and/or the appropriate medical records, and then issue an opinion as to the disability of the Participant involved. 1.13 "Effective Date" of this Plan shall mean January 1, 1995. 1.14 "Eligible Employee" shall mean, except as provided herein, any Employee of the Employer who has reached age 18 and has completed a three-month (six-month for individuals hired on or after July 1, 1999) Period of Service (without regard to the number of Hours of Service completed during those months). For purposes of the Plan, an Eligible Employee shall not include: (a) any Employee who is included in a unit covered by a collective bargaining agreement between Employee representatives and the Employer unless the bargaining agreement specifically requires participation in this Plan; (b) any Employee who is a non-resident alien and who receives no earned income from the Employer which constitutes income from U.S. sources; or (c) any individual retained directly or through a third party agency, including a leasing organization within the meaning of Code Section 414(n)(2), to perform services for the Employer (for either a definite or indefinite duration) in the capacity of a temporary service worker, leased worker, independent contractor, consultant or any similar capacity, to the extent that such individual is or has been determined by a governmental entity, court, arbitrator, or other third party, to be an employee of the Employer for any purpose, including tax withholding, employment tax, employment law or for purposes of any other employee benefit plan of the Employer. I-3 1.15 "Employee" shall mean any individual hired by the Employer as an employee. For purposes of this Plan, an Employee shall not include any individual retained directly or through a third party agency, including a leasing organization within the meaning of Code Section 414(n)(2), to perform services for the Employer (for either a definite or indefinite duration) in the capacity of a temporary service worker, leased worker, independent contractor, consultant or any similar capacity. 1.16 "Employer" shall mean the Company and any Affiliate which adopts the Plan. 1.17 "Employer Account" shall mean the separate account of a Participant established and maintained in accordance with Section 3.5. 1.18 "Employer Contribution" shall mean the employer contribution made by the Employer in accordance with Section 3.3. 1.19 "Employment Commencement Date" shall mean the first date on which an Employee (or a returning Employee) completes an Hour of Service. 1.20 "Entry Date" shall mean January 1, April 1, July 1 and October 1 of each calendar year. 1.21 "ERISA" shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time. 1.22 "Fund" shall mean all funds and assets held and administered by the Trustee at any time under the Trust, out of which payments under this Plan shall be made. 1.23 "Highly Compensated Employee" shall mean, with respect to the Employer, an Employee who performed services for the Employer during the "determination year" and at any time during the "determination year" or the "look-back year" was a 5% owner of the Employer or any Affiliate, or who, during the "look-back year," received Adjusted Compensation from the I-4 Employer or any Affiliate in excess of $80,000 (as adjusted pursuant to Section 415(d) of the Code). For purposes of this Section: (a) the "determination year" shall be the Plan Year for which compliance is being tested, (b) the "look-back year" shall be the 12-month period immediately preceding the determination year, and (c) "Adjusted Compensation" shall include Salary Deferral Contributions and any pre-tax salary reduction contributions under a Code Section 125 plan. If the Employer makes an election for any year in determining whether an Employee is a Highly Compensated Employee for such year, the first paragraph shall be applied by substituting "$80,000 (as adjusted pursuant to Section 415(d) of the Code) and who was a member of the 'top-paid group' for such year" for "$80,000 (as adjusted pursuant to Section 415(d) of the Code)" therein. The "top-paid group" for a look-back year shall consist of the top 20% of Employees ranked on the basis of compensation received during the year excluding Employees described in Section 414(q)(5) of the Code and Treasury Regulations thereunder. 1.24 "Hour of Service" shall mean: (a) Each hour for which an Employee is paid, or entitled to payment, for the performance of duties for the Employer. (b) Each hour for which an Employee is paid, or entitled to payment, by the Employer on account of a period of time during which no duties are performed due to vacation, holiday, illness, incapacity (including disability), layoff, jury duty or military duty. Notwithstanding the preceding sentence, no more than 501 Hours of Service shall be credited under this paragraph (b) to an Employee on account of any single continuous period during which the Employee performs no duties. The determination of Hours of Service for reasons other than the I-5 performance of duties, and the crediting of such hours, shall be made in accordance with the rules provided by Department of Labor Reg. Sections 2530.200b-2(b) and (c). (c) Each hour for which back pay, irrespective of mitigation of damages, is either awarded or agreed to by the Employer. The same Hours of Service shall not be credited both under paragraph (a) or paragraph (b), as the case may be, and under this paragraph (c). Crediting of Hours of Service for back pay awarded or agreed to with respect to periods described in paragraph (b) shall be subject to the limitations set forth in that paragraph. 1.25 "Investment Funds" means the investment funds provided for in Section 12.2. 1.26 "Limitation Year" shall mean the 12 month period corresponding with the Plan Year. 1.27 "Matching Account" shall mean the separate account of a Participant established and maintained in accordance with Section 3.5. 1.28 "Matching Contribution" shall mean the matching contribution made by the Employer in accordance with Section 3.2. 1.29 "Nonhighly Compensated Employee" shall mean an Employee of the Employer who is not a Highly Compensated Employee. 1.30 "Normal Retirement Date" shall mean the Participant's 65th birthday. 1.31 (a) "One-Year Break in Service" means a Plan Year during which an Employee fails to complete more than 500 Hours of Service. (b) Solely for purposes of determining whether an Employee has incurred a One-Year Break in Service, an Employee who is absent from work for maternity or paternity reasons shall receive credit for the Hours of Service which would otherwise have been credited to such Employee but for such absence, or in any case in which such hours cannot be I-6 determined, 8 Hours of Service per day of such absence. For purposes of this paragraph, an absence from work for maternity or paternity reasons means an absence: (i) by reason of the pregnancy of the Employee; (ii) by reason of a birth of a child of the Employee; (iii) by reason of the placement of a child with the employee in connection with the adoption of such child by such Employee; or (iv) for purposes of caring for such child for a period beginning immediately following such birth or placement. The Hours of Service credited under this paragraph shall be credited (A) in the Plan Year in which the absence begins if the crediting is necessary to prevent a One-Year Break in Service in that period, or (B) in all other cases, in the following Plan Year. This paragraph shall not apply unless the Employee furnishes to the Committee such timely information as the Committee may require to establish that the absence from employment is for the reasons described above. 1.32 (a) "One-Year Period of Severance" shall mean a twelve-month period beginning on the Severance from Service Date and ending on the first anniversary of such Date during which the Employee fails to perform an Hour of Service. (b) Solely for purposes of determining whether an Employee has incurred a One-Year Period of Severance, an Employee who is absent from work for maternity or paternity reasons shall not attain a Severance from Service Date until the second anniversary of the first date of such absence. For purposes of this paragraph, an absence from work for maternity or paternity reasons means an absence: (i) by reason of the pregnancy of the Employee, (ii) by reason of a birth of a child of the Employee, (iii) by reason of the placement of a child with the Employee in connection with the adoption of such child by such Employee, or (iv) for purposes of caring for such child for a period beginning immediately following such birth or placement. This paragraph shall not apply unless such Employee furnishes to the Committee such timely I-7 information as the Committee may require to establish that the absence from employment is for the reasons described above and to establish the period for which there was such an absence. 1.33 "Participant" shall mean any Eligible Employee who participates in the Plan as provided in Section 2.3 hereof. A Participant shall continue to be a Participant as long as he has an Account Balance hereunder. 1.34 "Period of Absence" shall mean an absence from service of 12 months or less, with or without pay, for any reason other than a quit, discharge, Retirement or death. 1.35 (a) "Period of Service" shall mean a period of time commencing on the Employee's Employment Commencement Date and ending on his Severance from Service Date. A Period of Service shall include a Period of Absence within such Period of Service. (b) All Periods of Service (and all Periods of Severance which are counted as Periods of Service) shall, if noncontinuous, be aggregated and less than three-month Periods of Service (whether or not consecutive) shall be aggregated on the basis that three months of service shall equal a three-month (or six-month, if applicable) Period of Service. For purposes of this determination, a Period of Severance shall be counted as a Period of Service if: (i) an Employee severs from service by reason of a quit, discharge or Retirement and then performs an Hour of Service within 12 months of the Severance from Service Date; or (ii) an Employee severs from service by reason of a quit, discharge, or Retirement during a Period of Absence, and he performs an Hour of Service within 12 months of the date on which he was first absent from service. (c) Except as otherwise provided in Section 2.4(b): I-8 (i) Any period during which an Employee was employed by Cott Distributors USA, Inc. on or after July 1, 1992, BCB Manufacturing USA, Inc. on or after May 31, 1994, Choice Brands USA, Inc. on or after May 31, 1994, and Lakeport Brewing USA, Inc. on or after August 2, 1992 shall be treated as employment as an Employee for purposes of calculating a "Period of Service"; (ii) If on August 2, 1992 an Employee was employed by Cott Distributors USA, Inc., any period during which such individual was employed by Comstock Michigan Fruit/Curtice Burns shall be treated as employment as an Employee for purposes of calculating a "Period of Service"; (iii) If on October 18, 2000 an Employee was employed by Concord Beverage Company and on October 19, 2000 such Employee was employed by Concord Beverage L.P., any period during which such individual was employed by Concord Beverage Company shall be treated as employment as an Employee for purposes of calculating a "Period of Service"; and (iv) Any period during which an individual is employed by an Affiliate shall be treated as employment as an Employee for purposes of calculating a "Period of Service". 1.36 "Period of Severance" shall mean the period of time commencing on the Severance from Service Date and ending on the date on which the Employee again performs an Hour of Service. 1.37 "Plan" shall mean The Restated Cott USA 401(k) Savings & Retirement Plan. The Plan is intended to be a profit sharing plan as described in Section 401(a)(27) of the Code. 1.38 "Plan Administrator" shall mean the Committee. I-9 1.39 "Plan Year" shall mean the calendar year. 1.40 "Restatement Effective Date" shall mean, except as otherwise provided herein, January 1, 1997. 1.41 "Retirement" shall mean retirement by a Participant on or after attaining his Normal Retirement Date. .42 "Rollover Account" shall mean the separate account of a Participant established and maintained in accordance with Section 3.5. 1.43 "Rollover Contribution" shall mean any rollover contributions made by a Participant in accordance with Section 3.4. 1.44 "Salary Deferral Account" shall mean the separate account of a Participant established and maintained in accordance with Section 3.5. 1.45 "Salary Deferral Contribution" shall mean the salary deferral contribution contributed to the Plan in accordance with Section 3.1. 1.46 (a) "Severance from Service Date" shall mean the earliest of (i) the day on which an Employee quits, retires, is discharged or dies or (ii) the first anniversary of a Period of Absence. (b) An Employee who is absent on account of an Approved Absence shall not be considered to have attained a Severance from Service Date as a result of such absence; provided, however, that this paragraph shall not apply unless the Employee returns to work on the first working day following the expiration of such Approved Absence. (c) For purposes of paragraph (b) of this Section 1.46, an "Approved Absence" shall mean a leave of absence granted by the Employer under rules uniformly applicable to all Employees similarly situated. An Approved Absence shall be granted for such I-10 purposes as vacation, military service in the Armed Forces of the United States, layoff or sickness. An Approved Absence shall not exceed 24 consecutive months, or, in the case of a Participant in military service of the Armed Forces of the United States, that period during which his re-employment rights are protected by law. 1.47 "Termination of Employment" shall mean the voluntary severance of employment of an Employee, or the involuntary severance of employment of an Employee by the Employer, other than severance of employment by reason of death, Disability or Retirement under this Plan. For purposes of this Plan, an Employee shall not be considered to have a Termination of Employment until such Employee is no longer employed by the Employer or any Affiliate. 1.48 "Trust" shall mean the instrument executed pursuant to Article XII by the Employer and the Trustee. 1.49 "Trustee" shall mean the trustee designated as such under the Trust. 1.50 "Valuation Date" shall mean each business day. 1.51 "Vested Percentage shall mean the portion of a Participant's Account Balance that is nonforfeitable. 1.52 (a) "Year of Service" shall mean any Plan Year during which an Employee is credited with at least 1,000 Hours of Service. (b) Except as otherwise provided in paragraph (c) of this Section 1.52: (i) Any period during which an Employee was employed by Cott Distributors USA, Inc. on or after July 1, 1992, BCB Manufacturing USA, Inc. on or after May 31, 1994, Choice Brands USA, Inc. on or after May 31, 1994, and Lakeport Brewing USA, Inc. on or after August 2, 1992 shall be treated as employment as an Employee for purposes of calculating a "Year of Service"; I-11 (ii) If on August 2, 1992 an Employee was employed by Cott Distributors USA, Inc., any period during which such individual was employed by Comstock Michigan Fruit/Curtice Burns shall be treated as employment as an Employee for purposes of calculating a "Year of Service"; (iii) If on October 18, 2000 an Employee was employed by Concord Beverage Company and on October 19, 2000 such Employee was employed by Concord Beverage L.P., any period during which such individual was employed by Concord Beverage Company shall be treated as employment as an Employee for purposes of calculating a "Year of Service"; and (iv) Any period during which an individual is employed by an Affiliate shall be treated as employment as an Employee for purposes of calculating a "Year of Service". (c) If a Participant (i) ceases to be an Employee on account of his Termination of Employment, (ii) has not made any Salary Deferral Contributions under the Plan, (iii) has a Vested Percentage in his Matching Account and Employer Account equal to zero percent (0%), (iv) incurs five (5) consecutive One Year Breaks in Service, and (v) is reemployed by the Employer, in determining such Participant's Years of Service under the Plan, Years of Service shall be computed without regard to any Years of Service prior to the five (5) consecutive One-Year Breaks in Service. I-12 ARTICLE II ELIGIBILITY AND PARTICIPATION 2.1 Any Eligible Employee who is a Participant in the Plan on the Restatement Effective Date shall continue as a Participant subject to the terms hereunder. 2.2 (a) Any Eligible Employee who is not a Participant on the Restatement Effective Date may become a Participant hereunder on any future Entry Date (or on a subsequent date) in accordance with Section 2.3. (b) Each Employee who becomes an Eligible Employee after the Restatement Effective Date may become a Participant hereunder on any Entry Date after which such Employee becomes an Eligible Employee (or on a subsequent date) in accordance with Section 2.3. 2.3 An Eligible Employee shall become a Participant (i) by authorizing Salary Deferral Contributions to the Plan in accordance with Section 3.1, or (ii) if Employer Contributions are made by the Employer on such Eligible Employee's behalf in accordance with Section 3.3. 2.4 (a) Except as otherwise provided in paragraph (b) of this Section 2.4, a Participant, or an Eligible Employee, who ceases to be an Eligible Employee or who has a Termination of Employment with the Employer, shall again become eligible to participate in the Plan as of the first date on which he completes an Hour of Service as an Eligible Employee. (b) If a Participant or Eligible Employee (i) ceases to be an Employee on account of his Termination of Employment, (ii) has not made any Salary Deferral Contributions under the Plan, (iii) has a Vested Percentage in his Matching Account and Employer Account equal to zero percent (0%), (iv) incurs five (5) consecutive One-Year Periods of Severance, and II-1 (v) is reemployed by the Employer, in determining the date on which such Employee shall again become an Eligible Employee eligible to participate in the Plan, such Employee's Period of Service shall be computed without regard to any Period of Service prior to the five (5) consecutive One-Year Periods of Severance. 2.5 Notwithstanding anything contained herein, if an individual was a participant in the CBC 401(k) Plan on October 18, 2000 and was an Employee other than an Employee described in clauses (a)-(c) of Section 1.14 on October 19, 2000, such individual may become a Participant hereunder on October 19, 2000 or any Entry Date thereafter (or on a subsequent date) in accordance with Section 2.3. II-2 ARTICLE III CONTRIBUTIONS 3.1 Salary Deferral Contributions. (a) (i) Each Eligible Employee may elect to become a Participant as of any Entry Date after becoming an Eligible Employee by authorizing the Employer (on the appropriate election form) to reduce his Compensation for a Plan Year by an amount equal to from one percent (1%) to fifteen percent (15%) (in whole percentages) of such Compensation and to have such amount deposited to the Plan as a Salary Deferral Contribution hereunder. (ii) Each Eligible Employee shall file such election with the Committee prior to the Entry Date as of which he elects to become a Participant. The Eligible Employee's election shall specify the percentage of his Compensation for each payroll period that is to be contributed to the Plan as a Salary Deferral Contribution. The amount contributed to the Plan shall be credited to the Participant's Salary Deferral Account. The election of the Participant shall remain in effect unless a new election is made by the Participant in accordance with paragraph (b) of this Section or Salary Deferral Contributions are suspended in accordance with paragraph (c) of this Section. (b) A Participant may increase or decrease his Salary Deferral Contributions, effective as soon as practicable but no earlier than the next Entry Date, in the manner prescribed by the Committee. (c) A Participant may suspend his Salary Deferral Contributions, effective as soon as practicable but no earlier than the first day of any payroll period, in the manner prescribed by the Committee. Salary Deferral Contributions so suspended may not be subsequently III-1 made up. A Participant may recommence Salary Deferral Contributions to the Plan, effective as of any subsequent Entry Date but no earlier than ninety days after the date Salary Deferral Contributions were suspended, in the manner prescribed by the Committee. A Participant may only make one suspension of Salary Deferral Contributions in any twelve-month period. Salary Deferral Contributions shall cease automatically when a Participant ceases to be an Employee. 3.2 Matching Contributions. For each payroll period, the Employer may make a Matching Contribution to the Plan on behalf of each Participant who makes Salary Deferral Contributions during such payroll period. The amount of such Matching Contribution to be made for a payroll period shall be equal to one hundred percent (100%) of the Salary Deferral Contributions made on behalf of the Participant for that payroll period; provided, however, that in all cases, a Participant's Salary Deferral Contributions for any payroll period in excess of five percent (5%) of such Participant's Compensation for such payroll period shall not be taken into account hereunder. If no Salary Deferral Contributions are made on behalf of a Participant for a payroll period, no Matching Contribution shall be made for such Participant for that payroll period. Any Matching Contributions made hereunder shall be credited to the Participant's Matching Account. 3.3 Employer Contributions. (a) In addition to any Salary Deferral Contributions and Matching Contributions to be made for a Plan Year, the Employer may elect to make an Employer Contribution to the Plan for the Plan Year for each Eligible Employee who is eligible for an allocation under paragraph (b) of this Section, in an amount determined in the sole discretion of the Board of Directors of the Company. III-2 (b) An Eligible Employee shall be eligible to receive an allocation of an Employer Contribution for a Plan Year only if: (i) such Eligible Employee is an Eligible Employee on the last day of the Plan Year; and (ii) such Eligible Employee has been credited with at least 1,000 Hours of Service during such Plan Year. (c) Any Employer Contribution made for a Plan Year shall be allocated as of the last day of such Plan Year to the Employer Account of each Participant who is eligible for an allocation under paragraph (b) of this Section in the proportion that each such Participant's Compensation for the Plan Year bears to the total Compensation of all such Participants for the Plan Year. 3.4 Rollover Contributions. (a) For the purpose of this Section, the term "Rollover Contribution" shall mean any "rollover amount" described in Section 402(c) of the Code (including any direct transfers within the meaning of Section 401(a)(31) of the Code) and any "rollover contribution" described in Section 408(d)(3)(A)(ii) of the Code. (b) Upon the written request of a Participant, the Committee shall direct the Trustee to receive and accept funds constituting a Rollover Contribution from or on behalf of such Participant. Such request shall set forth the amount of the Rollover Contribution and the facts establishing that such amount constitutes a Rollover Contribution within the meaning of paragraph (a) of this Section. In no event shall the Trustee be obliged to (i) accept any funds as a Rollover Contribution if, upon advice of counsel, the receipt thereof could jeopardize the qualified or exempt status of the Plan or Trust, or (ii) accept property as a Rollover Contribution. III-3 (c) A Rollover Contribution shall become part of the Trust Fund, as of the date such contribution is made, subject to the following provisions: (i) A Rollover Contribution shall be credited to the Rollover Account of the Participant on whose behalf such contribution is made. Such account shall be maintained as a separate account in addition to any other accounts for such Participant. (ii) A Participant shall be fully vested at all times in the his Rollover Account. (iii) A Participant's interest in the Fund represented by his Rollover Account shall be distributed in full or segregated at the same time and in the same manner as such Participant's interest in the Fund as provided in Article VII. (d) The Committee may direct the Trustee to accept as part of a Participant's Rollover Contribution any outstanding loan(s) that such Participant may have under the qualified plan from which such Rollover Contribution is being transferred; provided, however, that in the event that a loan(s) is transferred to the Plan as part of a Participant's Rollover Contribution, such loan(s) will continue to be held on the same terms as those contained in the loan agreement between the Participant and the qualified plan from which the loan(s) is rolled over, except that the Plan will be substituted as the obligee of the loan(s). (e) For purposes of this Section 3.4, the term Participant shall also include an Employee of the Employer, other than an Employee not eligible for the Plan under clauses (a), (b) and (c) of Section 1.14. III-4 3.5 Maintenance of Accounts for Each Participant. The Committee shall maintain a separate Salary Deferral Account, Matching Account, Employer Account, and Rollover Account in the name of each Participant. The maintenance of separate accounts shall not require a segregation of assets and shall not in any way limit the powers of the Trustee or the Committee with respect to the operation of the Fund. Such accounts shall at all times reflect the Account Balance of such Participant (or of his Beneficiary); and the Account Balance of a Participant on any date shall equal the sum of the balances in his accounts as of such date. 3.6 Irrevocable Divestiture by the Employer. (a) Except as provided in Article IV and paragraphs (b) and (c) of this Section, and notwithstanding any other provision of this Plan or of the Trust to the contrary, the Employer irrevocably divests itself of any interest or reversion whatsoever in any sums contributed by the Employer to the Fund, and it shall be impossible for any portion of the Fund to be used for, or diverted to, any purpose other than the exclusive benefit of Participants or their Beneficiaries and for payment of reasonable administrative expenses as provided in Section 14.4. (b) If a contribution is made to the Plan due to a mistake of fact, such contribution shall be refunded to the Employer within one year of such contribution. (c) All contributions by the Employer are conditioned upon their deductibility under Section 404 of the Code, and if part or all of the deduction for any contribution is disallowed, the contribution, to the extent disallowed, shall be returned to the Employer within one year after the disallowance of the deduction. (d) Refunds of contributions due to a mistake of fact or disallowance of a deduction shall be governed by the following requirements: III-5 (i) Earnings attributable to the amount being refunded shall remain in the Plan, but losses thereto must reduce the amount to be refunded. (ii) In no event may a refund be made that would cause the Account Balance of any Participant to be reduced to less than what the Participant's Account Balance would have been had the mistaken or nondeductible amount not been contributed. 3.7 Payment of Contributions to Trust Fund. The Employer shall make payment of the Salary Deferral Contributions to the Fund under the terms hereof not later than the 15th business day of the month after the month during which such amounts would otherwise have been paid to the Employee or such other time period permitted by applicable regulations. The Employer shall make the Matching Contributions and Employer Contributions to the Fund under the terms hereof not later than the due date for filing the Employer's Federal Income Tax Return for its fiscal tax year, including any extensions thereto. III-6 ARTICLE IV STATUTORY LIMITATIONS ON CONTRIBUTIONS 4.1 Maximum Dollar Amount of Salary Deferral Contributions. For any calendar year, a Participant shall not be permitted to make total Salary Deferral Contributions to this Plan, which, when added to any other amounts previously contributed as elective deferrals pursuant to Section 401(k) of the Code to any other tax2 qualified plans maintained by the Employer or an Affiliate, would exceed the maximum statutory limit of Section 402(g) of the Code for that calendar year, as adjusted from time to time by the Adjustment Factor. For purposes of this Section, Excess Deferrals that are distributed in accordance with Section 4.2 shall be disregarded. 4.2 Distribution of Excess Deferrals. (a) In General. Notwithstanding any other provision of the Plan, Excess Deferrals and the income or loss allocable thereto shall be distributed, where practicable, within the calendar year made, but in no event later than April 15 of the following calendar year to Participants who either file timely statements claiming such allocable Excess Deferrals, or who are deemed to have claimed such allocable Excess Deferrals, for the preceding calendar year. Any such distribution on or before the last day of the calendar year shall be made after the date on which the Plan received the Excess Deferral. Such distributions of Excess Deferrals and the income allocable thereto shall be considered distributions of the Salary Deferral Contributions of the affected Participants and, if returned after the end of the calendar year in which they were contributed, shall be considered distributions of such contributions for the preceding calendar year. Any Excess Deferrals and income allocable thereto which are distributed pursuant to this Section 4.2 shall be distributed in the following order of priority: IV-1 (i) First, from the portion of the Salary Deferral Contributions made during the calendar year in which the Excess Deferral was made that was not subject to a Matching Contribution under Section 3.2; and (ii) second, from the portion of the Salary Deferral Contributions made during the calendar year in which the Excess Deferral was made that was subject to a Matching Contribution under Section 3.2. (b) Definition. For purposes of this Article IV: (i) "Excess Deferrals" shall mean the excess of the total of the Participant's Salary Deferral Contributions made under this Plan and any other tax qualified plan maintained by the Employer or an Affiliate for any calendar year over the maximum statutory limit of Code Section 402(g) for such calendar year. Any such Excess Deferrals shall be deemed to have been claimed by the Participant as allocable Excess Deferrals and shall be distributed in accordance with paragraph (a) of this Section. (ii) If the Participant also makes before-tax contributions for the calendar year to plans or arrangements described in Code Sections 401(k), 408(k) or 403(b) that are not maintained by the Employer or an Affiliate, then Excess Deferrals shall be the amount of excess Salary Deferral Contributions for such calendar year that the Participant allocates to this Plan pursuant to the claim procedures set forth in paragraph (c) of this Section. (c) Excess Deferrals Claims Procedure. The Participant's claim shall be in writing; shall be submitted to the Committee no later than March 1; shall specify the Participant's Excess Deferrals for the preceding calendar year; and shall be accompanied by the Participant's written statement that if such amounts are not distributed, such Salary Deferral Contributions, IV-2 when added to the before-tax contributions made under other plans or arrangements described in Code Sections 401(k), 408(k) or 403(b) that are not maintained by the Employer or any Affiliate exceed the limit imposed on the Participant by Section 402(g) of the Code for the calendar year in which the deferrals occurred. Any Excess Deferrals under this paragraph shall be distributed in accordance with paragraph (a) of this Section. (d) Determination of Income or Loss. Distributions of Excess Deferrals shall be adjusted for income or loss by a reasonable method in accordance with regulations prescribed by the Secretary of the Treasury; provided, however, that no adjustment shall be made for any income or loss for the period between the end of the calendar year and the date of distribution. (e) Reduction For Excess Salary Deferral Contributions Distributed. The amount of Excess Deferrals to be distributed with respect to any Participant for the calendar year shall be reduced by the amount of Excess Salary Deferral Contributions (as defined in Section 4.4(b)) previously distributed to the Participant pursuant to Section 4.4(a) for the Plan Year beginning with or within such calendar year. In the event of a reduction pursuant to the terms of the preceding sentence, the amount of Excess Salary Deferral Contributions includible in the gross income of the Participant and reported by the Employer as a distribution of Excess Salary Deferral Contributions shall be reduced by the amount of such reduction. (f) Forfeiture of Matching Contributions. Any Matching Contributions which are attributable to Salary Deferral Contributions required to be distributed under paragraph (a) of this Section shall be forfeited as of the date of the distribution of such Excess Deferrals. 4.3 Limitations on Salary Deferral Contributions. Salary Deferral Contributions of Eligible Employees who are Highly Compensated Employees for a Plan Year shall be subject to IV-3 the limitations of this Section. For purposes of this Section 4.3 and Section 4.4, Eligible Employees shall be those Eligible Employees who are eligible to participate in the Plan for the applicable Plan Year. (a) Average Actual Deferral Percentage. The Average Actual Deferral Percentage for Eligible Employees who are Highly Compensated Employees for the Plan Year must satisfy one of the following tests: (i) The Average Actual Deferral Percentage for a Plan Year for Eligible Employees who are Highly Compensated Employees for the Plan Year shall not exceed the Average Actual Deferral Percentage for the prior Plan Year for Eligible Employees who were Nonhighly Compensated Employees for the prior Plan Year multiplied by 1.25; or (ii) The excess of the Average Actual Deferral Percentage for a Plan Year for Eligible Employees who are Highly Compensated Employees for the Plan Year over the Average Actual Deferral Percentage for the prior Plan Year for Eligible Employees who were Nonhighly Compensated Employees for such prior Plan Year shall not exceed 2 percentage points, and the Average Actual Deferral Percentage for Eligible Employees who are Highly Compensated Employees for the Plan Year shall not exceed the Average Actual Deferral Percentage for the prior Plan Year for Eligible Employees who were Nonhighly Compensated Employees for such prior Plan Year multiplied by 2. (iii) For the Plan Years beginning January 1, 1997, January 1, 1998, January 1, 1999 and January 1, 2000, in performing tests set forth in (i) and (ii) of this Section 4.3(a), the Average Actual Deferral Percentage for the prior IV-4 Plan Year for Eligible Employees who were Nonhighly Compensated Employees for the prior Plan Year shall be the Average Actual Deferral Percentage for the current Plan Year for Eligible Employees who are Nonhighly Compensated Employees for the current Plan Year. (b) Definitions. For purposes of this Section, the following definitions shall be used: (i) "Actual Deferral Percentage" shall mean the ratio (expressed as a percentage) of Salary Deferral Contributions made on behalf of an Eligible Employee for a Plan Year (including Excess Deferrals of Highly Compensated Employees) to the Eligible Employee's ADP Compensation for such Plan Year. (ii) "Average Actual Deferral Percentage" shall mean, for a specified group of Eligible Employees for a Plan Year, the average (expressed as a percentage) of the Actual Deferral Percentages of the Eligible Employees in such group for a Plan Year. (iii) "ADP Compensation" shall mean for any Plan Year, Adjusted Compensation received during the Plan Year by an Eligible Employee; provided, however, that at the election of the Committee, ADP Compensation may be limited to Adjusted Compensation received by an Eligible Employee for the portion of the Plan Year in which such Eligible Employee was eligible to participate in the Plan. For purposes of this Section, Adjusted Compensation shall include Salary Deferral Contributions and any pre-tax salary reduction contributions under a Code Section 125 plan. IV-5 (c) Special Rules. (i) Except as provided below, if, in addition to this Plan, an Eligible Employee who is a Highly Compensated Employee participates in one or more cash or deferred arrangements of the Employer or an Affiliate for a Plan Year, all of such arrangements shall be treated as one cash or deferred arrangement for purposes of the determining the Actual Deferral Percentage of such Eligible Employee. However, if the cash or deferred arrangements have different plan years, this subparagraph shall be applied by treating all cash or deferred arrangements ending with or within the same calendar year as a single arrangement. Notwithstanding the foregoing, plans that are not permitted to be aggregated are not required to be aggregated for purposes of this subparagraph. (ii) In the event that this Plan is aggregated with one or more other plans for purposes of Sections 401(a)(4) and 410(b) of the Code (other than for purposes of the average benefits percentage test), this Section 4.3 shall then be applied by determining the Average Actual Deferral Percentage of Eligible Employees as if all of such plans were a single plan. Plans may be aggregated under this subparagraph only if they have the same plan year. (iii) If during a Plan Year the projected aggregate amount of Salary Deferral Contributions to be allocated to all Participants who are Highly Compensated Employees under this Plan would cause the Plan to fail to satisfy the tests set forth in Section 4.3(a), the Committee may then automatically reduce or restrict Highly Compensated Employees' deferral elections made pursuant to IV-6 Section 3.1 by the amount necessary to satisfy one of the tests set forth in Section 4.3(a) (iv) The determination and treatment of the Salary Deferral Contributions and the Actual Deferral Percentage of any Participant shall satisfy such other requirements as may be prescribed by the Secretary of the Treasury. 4.4 Distribution of Excess Salary Deferral Contributions. (a) In General. Notwithstanding any other provision of the Plan, Excess Salary Deferral Contributions and income or loss allocable thereto shall be distributed to those Participants on whose behalf such Salary Deferral Contributions were made for a Plan Year based on the amount of contributions made by such Participants in accordance with the provisions of Section 401(k)(8)(C) of the Code. Such distributions shall, to the extent practicable, be made within 2-1/2 months after the close of such Plan Year (in order to avoid the 10 percent excise tax under Section 4979 of the Code) and in no event later than the last day of the Plan Year immediately following the Plan Year for which such excess Salary Deferral Contributions were made. Such distributions of Excess Salary Deferral Contributions and the income or loss allocable thereto shall be considered distributions of the Salary Deferral Contributions of the affected Participants for such Plan Year. Any Excess Salary Deferral Contributions and income allocable thereto which are required to be distributed pursuant to this Section 4.4 shall be distributed in the following order of priority: (i) First, from the portion of the Salary Deferral Contributions for the preceding Plan Year that was not subject to a Matching Contribution under Section 3.2; and IV-7 (ii) second, from the portion of the Salary Deferral Contributions for the preceding Plan Year that was subject to a Matching Contribution under Section 3.2. (b) Excess Salary Deferral Contributions. For purposes of this Section, "Excess Salary Deferral Contributions" shall mean, with respect to any Plan Year, the excess of: (i) The aggregate amount of Salary Deferral Contributions actually taken into account in computing the Actual Deferral Percentages of Highly Compensated Employees for such Plan Year, over (ii) the maximum amount of such contributions permitted by the Average Actual Deferral Percentage test described in Section 4.3(a) (determined by reducing contributions made on behalf of Highly Compensated Employees in order of the Actual Deferral Percentages, beginning with the highest of such percentages). Excess Salary Deferral Contributions shall be considered as Annual Additions for purposes of Section 4.7 even if they are distributed from the Plan. (c) Determination of Income or Loss. Excess Salary Deferral Contributions shall be adjusted for income or loss by a reasonable method in accordance with regulations prescribed by the Secretary of the Treasury; provided, however, that no adjustment shall be made for any income or loss attributable to the period between the end of the Plan Year for which the Excess Salary Deferral Contributions are being distributed and the date of distribution. (d) Reduction for Excess Deferrals Distributed. The amount of Excess Salary Deferral Contributions to be distributed to the Participant pursuant to this Section shall be re- IV-8 duced by the amount of the Excess Deferrals previously distributed to the Participant pursuant to Section 4.2 above for the Participant's taxable year ending with or within the Plan Year. (e) Forfeiture of Matching Contribution. Any Matching Contributions which are attributable to Excess Salary Deferral Contributions required to be distributed under paragraph (a) of this Section shall be forfeited as of the date of the distribution of such Excess Salary Deferral Contributions. 4.5 Limitations on Matching Contributions. Matching Contributions of Eligible Employees who are Highly Compensated Employees for a Plan Year shall be subject to the limitations of this Section. For purposes of this Section 4.5 and Section 4.6, Eligible Employees shall be those Employees who are eligible to participate in the Plan for the applicable Plan Year. (a) Average Actual Contribution Percentage. The Average Actual Contribution Percentage for Eligible Employees who are Highly Compensated Employees for the Plan Year must satisfy one of the following tests: (i) The Average Actual Contribution Percentage for a Plan Year for Eligible Employees who are Highly Compensated Employees for the Plan Year shall not exceed the Average Actual Contribution Percentage for the prior Plan Year for Eligible Employees who were Nonhighly Compensated Employees for the prior Plan Year multiplied by 1.25; or (ii) The excess of the Average Actual Contribution Percentage for a Plan Year for Eligible Employees who are Highly Compensated Employees for the Plan Year over the Average Actual Contribution Percentage for the prior Plan Year for Eligible Employees who were Nonhighly Compensated Employees for such prior Plan Year shall not exceed 2 percentage points, and the Average IV-9 Actual Contribution Percentage for Eligible Employees who are Highly Compensated Employees for the Plan Year shall not exceed the Average Actual Contribution Percentage for the prior Plan Year for Eligible Employees who were Nonhighly Compensated Employees for such prior Plan Year multiplied by 2. (iii) For the Plan Years beginning January 1, 1997, January 1, 1998, January 1, 1999 and January 1, 2000, in performing the tests set forth in (i) and (ii) of this Section 4.5(a), the Average Actual Contribution Percentage for the prior Plan Year for Eligible Employees who were Nonhighly Compensated Employees for the prior Plan Year shall be the Average Actual Contribution Percentage for the current Plan Year for Eligible Employees who are Nonhighly Compensated Employees for the current Plan Year. (b) Definitions. For purposes of this Section, the following definitions shall be used: (i) "Actual Contribution Percentage" shall mean the ratio (expressed as a percentage) of Matching Contributions made on behalf of an Eligible Employee for a Plan Year to the Eligible Employee's ACP Compensation for such Plan Year. (ii) "Average Actual Contribution Percentage" shall mean, for a specified group of Eligible Employees for a Plan Year, the average (expressed as a percentage) of the Actual Contribution Percentages of the Eligible Employees in such group for a Plan Year. (iii) "ACP Compensation" shall mean for any Plan Year, Adjusted Compensation received during the Plan Year by an Eligible Employee; IV-10 provided, however, that at the election of the Committee, ACP Compensation may be limited to Adjusted Compensation received by an Eligible Employee for the portion of the Plan Year in which such Eligible Employee was eligible to participate in the Plan. For purposes of this Section, Adjusted Compensation shall include Salary Deferral Contributions and any pre-tax salary reduction contributions under a Code Section 125 plan. (c) Special Rules. (i) Except as provided below, if, in addition to this Plan, an Eligible Employee who is a Highly Compensated Employee participates in one or more cash or deferred arrangements of the Employer or an Affiliate for a Plan Year, all of such arrangements shall be treated as one cash or deferred arrangement for purposes of the determining the Actual Contribution Percentage of such Eligible Employee. However, if the cash or deferred arrangements have different plan years, this subparagraph shall be applied by treating all cash or deferred arrangements ending with or within the same calendar year as a single arrangement. Notwithstanding the foregoing, plans that are not permitted to be aggregated are not required to be aggregated for purposes of this subparagraph. (ii) In the event that this Plan is aggregated with one or more other plans for purposes of Sections 401(a)(4) and 410(b) of the Code (other than for purposes of the average benefits percentage test), this Section 4.5 shall then be applied by determining the Average Actual Contribution Percentage of Eligible Employees as if all of such plans were a single plan. Plans may be aggregated under this subparagraph only if they have the same plan year. IV-11 (iii) In determining the Actual Contribution Percentage of Highly Compensated Employees and/or Nonhighly Compensated Employees, the Committee may elect to treat Salary Deferral Contributions as Matching Contributions, provided that (A) the Plan satisfies the Average Actual Deferral Percentage limitation set forth in Section 4.3(a) prior to the exclusion of any Salary Deferral Contributions which are treated as Matching Contributions and (B) the Plan continues to satisfy the Actual Deferral Percentage limitation after the exclusion of such Salary Deferral Contributions. (iv) The determination and treatment of the Matching Contributions and the Actual Contribution Percentage of any Participant shall satisfy such other requirements as may be prescribed by the Secretary of the Treasury. (d) Multiple Use Limitation. (i) Notwithstanding any other provision contained in this Section 4.5, if the Average Actual Deferral Percentage for a Plan Year for Eligible Employees who are Highly Compensated Employees satisfies the alternative set forth in subparagraph (ii) of Section 4.3(a) but does not satisfy subparagraph (i) of Section 4.3(a), and the Average Actual Contribution Percentage for a Plan Year for Eligible Employees who are Highly Compensated Employees satisfies the alternative set forth in subparagraph (ii) of Section 4.5(a) but does not satisfy subparagraph (i) of Section 4.5(a), a special limitation shall apply. Under this limitation, the sum of the Average Actual Deferral Percentages for a Plan Year for the Eligible Employees who are Highly Compensated Employees plus the IV-12 Average Actual Contribution Percentages for such Plan Year for such Eligible Employees may not exceed the greater of: (A) the sum of the maximum Average Actual Deferral Percentage permissible for Eligible Employees who are Highly Compensated Employees under subparagraph (i) of Section 4.3(a) plus the maximum Average Actual Contribution Percentage for such Eligible Employees under subparagraph (ii) of Section 4.5(a); or (B) the sum of the maximum Average Actual Deferral Percentage permissible for Eligible Employees who are Highly Compensated Employees under subparagraph (ii) of Section 4.3(a) plus the maximum Average Actual Contribution Percentage permissible for such Eligible Employees under subparagraph (i) of Section 4.5(a). (ii) In determining whether the Plan satisfies the multiple use limitation set forth in this paragraph (d), the Committee may elect to apply the rules set forth in subparagraph (iii) of Section 4.5(c). (iii) If the multiple use limitation set forth in this paragraph (d) is not satisfied, either Salary Deferral Contributions shall be distributed in accordance with the provisions of Section 4.4, or Matching Contributions shall be distributed or forfeited in accordance with the provisions of Section 4.6, to the extent necessary to satisfy such limitation. 4.6 Distribution or Forfeiture of Excess Matching Contributions. (a) In General. Notwithstanding any other provision of the Plan, Excess Matching Contributions and income or loss allocable thereto shall either be forfeited, if IV-13 forfeitable under the provisions of Section 7.3, or distributed to those Participants on whose behalf such Matching Contributions were made for a Plan Year based on the amount of contributions made by such Participants in accordance with the provisions of Section 401(m)(6)(C) of the Code. Such distributions shall, to the extent practicable, be made within 2-1/2 months after the close of such Plan Year (in order to avoid the 10 percent excise tax under Section 4979 of the Code) and in no event later than the last day of the Plan Year immediately following the Plan Year for which such excess Matching Contributions were made. Such distributions of Excess Matching Contributions and the income or loss allocable thereto shall be considered distributions of the Matching Contributions of the affected Participants for such Plan Year. (b) Excess Matching Contributions. For purposes of this Section, "Excess Matching Contributions" shall mean, with respect to any Plan Year, the excess of: (i) The aggregate amount of Matching Contributions actually made on behalf of Highly Compensated Employees for such Plan Year, over (ii) the maximum amount of Matching Contributions permitted by the Average Actual Contribution Percentage test described in Section 4.5(a) (determined by reducing contributions made on behalf of Highly Compensated Employees in order of the Actual Contribution Percentages, beginning with the highest of such percentages). Excess Matching Contributions shall be considered as Annual Additions for purposes of Section 4.7 even if they are distributed from the Plan. (c) Determination of Income or Loss. Excess Matching Contributions shall be adjusted for income or loss by a reasonable method in accordance with regulations prescribed IV-14 by the Secretary of the Treasury; provided, however, that no adjustment shall be made for any income or loss attributable to the period between the end of the calendar year and the date of distribution. 4.7 Limitation on Contributions. (a) The Annual Additions credited to a Participant under this Plan for any Limitation Year shall not exceed the lesser of (i) 25 percent of the Participant's Adjusted Compensation or (ii) $30,000 (as adjusted by the Adjustment Factor). (b) Notwithstanding the foregoing, the compensation limitation referred to in subsection (a)(i) shall not apply to: (i) Any amount otherwise treated as an Annual Addition under Section 415(l)(1) of the Code, or (ii) Any contribution for medical benefits otherwise treated as an Annual Addition under Section 419A(d)(2). (c) In applying the limitations of paragraph (a): (i) All "defined contribution plans" of the Employer or its Affiliates shall be aggregated with this Plan. (ii) If "annual additions" (within the meaning of Section 415(c)(2) of the Code) are credited to a Participant's accounts under any other qualified defined contribution plan maintained by the Employer or any Affiliate that is required to be aggregated under subparagraph (i), the maximum amount of Annual Additions that may be credited to such Participant under this Plan shall be limited to the excess of the limitations described in paragraph (a) over the amount IV-15 of the annual additions credited to the Participant under such other qualified defined contribution plans. (d) For purposes of this Section: (i) "defined contribution plan" shall mean a plan which provides for an individual account for each Participant and for benefits based solely on the amount contributed to the accounts of the Participant, and any income, expenses, gains and losses which may be credited to such Participant's accounts; (ii) the definition of "Affiliate" shall be modified by Section 415(h) of the Code; and (iii) effective January 1, 1998, "Adjusted Compensation" shall include Salary Deferral Contributions and any pre-tax salary reduction contributions under a Code Section 125 plan. (e) Subject to paragraph (f), in no event shall Annual Additions be made under this Plan for any Participant in a Limitation Year to the extent that there is an amount credited to such Participant's accounts in excess of the maximum amount permitted under this Section. (f) If the amount of Annual Additions which are credited to a Participant under this Plan for any Limitation Year exceeds the maximum amount permitted under this Section ("Excess Annual Additions"), and if such excess was caused by the allocation of forfeitures, by a reasonable error in estimating the Participant's Adjusted Compensation, by a reasonable error in determining the amount of Salary Deferral Contributions that may be made with respect to the Participant under the limitations of this Section, or by other limited facts and circumstances, the Excess Annual Additions may be reduced for such Limitation Year in the following manner: (i) Salary Deferral Contributions (and any income attributable thereto) shall be distributed to the extent that such distributions reduce the Excess IV-16 Annual Additions. Any Salary Deferral Contributions that are so distributed shall not be considered as an Annual Addition for the Limitation Year and shall be disregarded for purposes of Sections 4.1, 4.3 and 4.5. (ii) If there remains any Excess Annual Additions after the application of subparagraph (i) of this paragraph, such Excess Annual Additions shall be used to reduce Matching Contributions for the next Limitation Year (and succeeding limitation Years, as necessary) for the Participant. However, if the Participant is not participating in the Plan for the applicable Limitation Year, the Excess Annual Additions shall be held in a suspense account for that Limitation Year and credited to the next Limitation Year to all remaining Participants in the same proportion as the Compensation paid to such Participants during such Limitation Year. Furthermore, the Excess Annual Additions shall be used to reduce Matching Contributions for the next Limitation Year (and succeeding Limitation Years, as necessary) for all of such Participants. Any Excess Annual Additions that are treated in accordance with this subparagraph (iii) for the Limitation Year shall not be considered as Annual Additions for such Limitation Year. (iii) If there remains any Excess Annual Additions after the application of subparagraphs (i) and (ii) of this paragraph, such Excess Annual Additions shall be used to reduce Employer Contributions for the next Limitation Year (and succeeding limitation Years, as necessary) for the Participant. However, if the Participant is not participating in the Plan for the applicable Limitation Year, the Excess Annual Additions shall be held in a suspense account IV-17 for that Limitation Year and credited to the next Limitation Year to all remaining Participants in the same proportion as the Compensation paid to such Participants during such Limitation Year. Furthermore, the Excess Annual Additions shall be used to reduce Employer Contributions for the next Limitation Year (and succeeding Limitation Years, as necessary) for all of such Participants. Any Excess Annual Additions that are treated in accordance with this subparagraph (iii) for the Limitation Year shall not be considered as Annual Additions for such Limitation Year. (iv) If a suspense account is in existence at any time during the Limitation Year, investment gains and losses and other income and expenses shall not be allocated to the suspense account. (v) If this Plan is terminated and at the time of such termination a balance remains in the suspense account which, because of the limitations imposed by this Section, cannot be credited to any Participant, such balance shall revert to the Employer. 4.8 Limitation on Compensation. For purposes of this Plan, Compensation, ADP Compensation and ACP Compensation (collectively "Contribution Compensation") of a Participant for a Plan Year in excess of $160,000 (as adjusted by the Adjustment Factor under Section 401(a)(17)(B) of the Code) shall not be taken into account. IV-18 ARTICLE V INVESTMENT OF TRUST ASSETS 5.1 Investment Funds. (a) Except as provided in paragraph (b) of this Section, each Participant's Accounts under the Plan shall be invested in the Investment Funds in the proportions and amounts as determined by the Participant pursuant to Section 5.2. (b) Twenty-five percent (25%) of each Participant's Matching Contributions shall be automatically invested in Company Stock and shall not be transferred to any other Investment Funds under the Plan. 5.2 Investment Options of Participants. (a) Except as provided in 5.1(b), each Participant shall elect to invest his Accounts in the Investment Funds maintained by the Trustee under Section 12.2 in such proportions as the Participant shall indicate, up to the sum of the account balances in the Accounts. Each Participant's initial investment directions shall be given in writing to the Committee and shall be signed by the Participant. All investment directions, including requests for changes or transfers, shall be subject to such rules and regulations as the Committee shall determine in a uniform and nondiscriminatory manner. (b) The Trustee shall take such steps as are necessary to make the investments in accordance with the designations, changes in designations, or transfer request made by Participants. (c) The selection of any Investment Fund is the sole and exclusive responsibility of each Participant and it is intended that the selection of an Investment Fund by each Participant be within the parameters of Section 404(c) of ERISA and the regulations V-1 thereunder. None of the Employer, nor the Trustee, nor any Committee member, nor any of the directors, officers, agents or Employees of the Employer are empowered to or shall be permitted to advise a Participant as to the manner in which his accounts shall be invested or changed. No liability whatsoever shall be imposed upon the Employer, the Trustee, any Committee member, or any director, officer, agent or Employee of the Employer for any loss resulting to a Participant's account because of any sale or investment directed by a Participant under this Section or because of the Participant's failure to take any action regarding an investment acquired pursuant to such elective investment. V-2 ARTICLE VI VALUATION OF TRUST ASSETS 6.1 Time and Manner of Valuation. As of each Valuation Date, the Trustee shall value all of the assets in each Investment Fund maintained under Section 12.2 for the purpose of determining the amount, if any, of the net increase or net decrease in the fair market value of each such Fund. The fair market value of each Investment Fund shall represent the fair market value of all securities or other property held thereunder, plus cash and accrued earnings, less accrued expenses and proper charges against each Fund as of the Valuation Date. The Trustee's determination shall be final and conclusive for all purposes of this Plan. 6.2 Allocation of Net Increase and Net Decrease to Accounts of Participants. The Trustee shall allocate as of such Valuation Date a part of each such net increase or net decrease for each Fund to the Salary Deferral Account, Matching Account, Employer Account and Rollover Account of each Participant in the ratio that the balance in each such account bears to all such accounts invested in such Fund. Any dividends paid with respect to the Company Stock held in a Participant's Matching Account shall be used to purchase additional shares of Company Stock for such Participant. VI-1 ARTICLE VII DISTRIBUTION OF ACCOUNT BALANCES 7.1 Payments on Account of Retirement or Disability. (a) A Participant who ceases to be an Employee due to his Retirement or Disability shall be entitled to receive a distribution under the Plan of his entire Account Balance in the form of, except as provided in paragraph (e) of this Section, a lump sum cash payment. (b) (i) Except as otherwise provided in subparagraph (ii) of this paragraph (and subject to the provisions of Section 7.4, if applicable), any distribution under this Section on account of Retirement shall be made as soon as practicable after the Participant's Retirement, but in no event later than 60 days after the close of the Plan Year in which his Retirement occurred. (ii) A Participant who ceases to be an Employee due to his Retirement shall be entitled to defer receipt of any distribution to be made under this paragraph until he elects to receive such distribution; provided, however, that such distribution must be made not later than April 1 of the calendar year following the calendar year in which such Participant attains the age of 70-1/2. Except as provided in paragraph (e) of this Section, any distribution under this subparagraph shall be made in the form of a lump sum cash payment as soon as practicable following the Participant's election to receive the distribution, but in no event later than the April 1 of the calendar year following the calendar year in which such Participant attains the age of 70-1/2. (c) Any distributions under this Section 7.1 on account of Disability shall be made or commence in accordance with the provisions of paragraph (b) and (c) of Section 7.3 VII-1 (d) Whether or not a Participant retires upon attaining his Normal Retirement Date, the Participant's interest in his Matching Account and Employer Account shall be fully vested as of such date. (e) Notwithstanding paragraphs (a) and (b) of this Section 7.1, any Participant who ceases to be an Employee on account of his Retirement or Disability and whose Account Balance exceeds $3,500 (effective January 1, 1998, $5,000) may elect, in lieu of a lump sum cash payment, to receive his distribution in the form of substantially equal monthly installments over a period not to exceed the shorter of fifteen years or the Participant's life expectancy. 7.2 Payment upon Death of Participant. (a) If a Participant ceases to be an Employee on account of his death, or if a Participant dies after his Retirement or Disability but before receiving or commencing to receive his Account Balance hereunder, the Participant's Beneficiary shall be entitled to receive a distribution of the Participant's entire Account Balance in the form of a lump sum cash payment. Any distribution under this Section shall be made to the Participant's Beneficiary as soon as practicable after the Participant's death. (b) If a Participant who ceased to be an Employee on account of his Retirement or Disability dies after commencing to receive a distribution of his Account Balance in the form of installment payments but prior to the completion of the distribution of the entire Account Balance, the Participant's Beneficiary shall receive a distribution of such Participant's remaining Account Balance in a lump sum cash payment. Any distribution shall be made as soon as practicable after the Participant's death. VII-2 7.3 Payments on Account of Termination of Employment. (a) (i) A Participant who ceases to be an Employee on account of his Termination of Employment shall be entitled to receive 100% of the balance in his Salary Deferral Account and Rollover Account, plus the Vested Percentage of the balance in his Matching Account and Employer Account. (For purposes of this Article VII, the balance in a Participant's Salary Deferral Account and Rollover Account and the Vested Percentage of the balance in such Participant's Matching Account and Employer Account shall be referred to as the "Vested Account Balance".) (ii) The Vested Percentage of the balance in a Participant's Matching Account and Employer Account shall be based upon such Participant's Years of Service as of the date of his Termination of Employment in accordance with the following vesting schedule:
Years of Service ("Vested Percentage") ---------------- --------------------- Less than 1 year 0% 1 but less than 2 20% 2 but less than 3 40% 3 but less than 4 60% 4 but less than 5 80% 5 or more 100%
(iii) In determining a Participant's Vested Percentage in his Matching Account and Employer Account under subparagraph (ii) of this paragraph, Years of Service shall be computed without regard to any Years of Service after five consecutive One Year Breaks in Service; i.e., Years of Service completed after five (5) consecutive One Year Breaks in Service shall not be taken into account for purposes of determining a Participant's Vested Percentage VII-3 in his Matching Account and Employer Account derived from Matching Contributions and Employer Contributions which were made before such five-year period. (v) In the event that the Plan is amended to change the vesting schedule, each Participant who has completed at least three (3) Years of Service and whose Vested Percentage is determined under the new vesting schedule may elect, within a reasonable period after the adoption of the amendment, to have his Vested Percentage determined under the vesting schedule in effect prior to the amendment. (b) The Participant's Vested Account Balance to which he shall be entitled under paragraph (a) of this Section shall be distributed as follows: (i) If the value of the Participant's Vested Account Balance under paragraph (a) of this Section does not exceed $3,500 (effective January 1, 1998, $5,000) such Participant (or his Beneficiary should the Participant die before receiving any payments hereunder) shall receive a distribution of such Vested Account Balance in a lump sum cash payment as soon as practicable following his Termination of Employment. (ii) If the value of the Participant's Vested Account Balance under paragraph (a) of this Section exceeds $3,500 (effective January 1, 1998, $5,000), such Participant shall receive a distribution of such Vested Account Balance in a lump sum cash payment as soon as practicable following his Termination of Employment, provided that the Participant elects to receive such immediate distribution of his Vested Account Balance by filing an election with VII-4 the Committee. If such Participant should die prior to receiving a distribution of his Vested Account Balance, the Participant's Beneficiary shall receive a distribution of such Participant's Vested Account Balance in a lump sum cash payment as soon as practicable following the Participant's date of death. (iii) If the value of the Participant's Vested Account Balance under paragraph (a) of this Section exceeds $3,500 (effective January 1, 1998, $5,000) and if such Participant does not elect to receive an immediate distribution of such Vested Account Balance in a lump sum cash payment, such Participant (hereinafter referred to as a "Terminated Vested Participant") shall receive a distribution of his Vested Account Balance in accordance with paragraph (c) of this Section. If the value of a Participant's Vested Account Balance, determined at the time of a distribution to the Participant, exceeds $3,500 (effective January 1, 1998, $5,000), then, for purposes of this paragraph (b), the value of such Vested Account Balance at any subsequent time shall be deemed to exceed $3,500 (effective January 1, 1998, $5,000). (c) The payment of a Terminated Vested Participant's Vested Account Balance under this paragraph (c) shall be made in the form of a lump sum cash payment no later than 60 days after the end of the Plan Year in which such Participant reaches age 65; provided, however, that the Participant may elect to receive an earlier payment of such Account Balance. If the Participant makes such an election, payment shall be made in a lump sum cash payment no later than 60 days after the end of the Plan Year in which the election is made. (d) Notwithstanding anything contained in this Section 7.3, if a Participant whose Vested Account Balance exceeds $3,500 (effective January 1, 1998, $5,000) ceases to be VII-5 an Employee on account of his Termination of Employment, such Participant may elect, in lieu of a lump sum cash payment, to receive his Vested Account Balance in the form of substantially equal monthly installments over a period not to exceed the shorter of fifteen years or the Participant's life expectancy. (e) In the case of a Participant who receives a distribution pursuant to either paragraph (b)(i) or (b)(ii) of this Section in connection with his Termination of Employment, the balance of such Participant's interest in his Matching Account and Employer Account in excess of his vested interest in such accounts shall be forfeited as of the date that the distribution is made to the Participant. In the case of a Terminated Vested Participant, the balance of such Participant's interest in his Matching Account and Employer Accounts in excess of his vested interest in such accounts shall be forfeited as of the earlier of (i) the last day of the Plan Year in which such Participant incurs five (5) consecutive One-Year Breaks in Service or (ii) the date that the Participant receives payment of his Vested Account Balance pursuant to paragraph (c) of this Section. Except as otherwise provided under paragraph (f), the amount of any forfeitures described in this paragraph for the Plan Year, as well as any forfeitures under Sections 4.2(f), 4.4(e), 4.6(a) and 7.8 for the Plan Year, shall be used to pay administrative expenses of the Plan pursuant to Section 14.4. Any remaining forfeitures may be applied as a credit towards any Matching Contributions or Employer Contributions to be made by the Employer. (f) If a Participant who has forfeited any amounts in accordance with the provisions of this Section pursuant to his Termination of Employment shall return to the employ of the Employer prior to completing five (5) consecutive One-Year Breaks in Service, the amount so forfeited shall be restored to the Participant only if such Participant repays the full amount previously distributed to him within five years of the date he is reemployed by the VII-6 Employer. In the event of such repayment, a Matching Account and Employer Account shall be reestablished on behalf of such Participant and the amount forfeited shall be added to the balance of such Matching Account and Employer Account as of the time of his return to the employ of the Employer. Any forfeiture to be used to pay administrative expenses of the Plan or applied as a credit towards any Matching Contributions or Employer Contributions to be made by the Employer under paragraph (e) of this Section may, in the sole discretion of the Committee, be used for the purpose of restoring, as required under this paragraph, the amounts forfeited in accordance with the provisions of this Section. To the extent such forfeitures are insufficient, the Employer shall make a special contribution to restore the forfeiture. 7.4 Special Distribution Rules. (a) (i) Notwithstanding anything to the contrary in this Article, as required by Section 401(a)(9) of the Code and the Treasury Regulations thereunder, with respect to any Participant who is a "five percent owner" (as defined in Code Section 416), the distribution of such Participant's Account Balance shall be made (or commence) in accordance with subparagraph (ii) of this paragraph no later than April 1 of the year following the calendar year in which the Participant reaches age 70-1/2, regardless of whether such Participant is still actively employed as of such date. If the Participant continues to participate in the Plan, any additional amounts credited to the Participant's Account Balance shall be distributed each year in accordance with subparagraph (ii) of this paragraph so as to satisfy the requirements of Section 401(a)(9) of the Code and the Treasury Regulations thereunder. VII-7 (ii) At the election of the Participant, the Participant's Account Balance shall either be distributed in its entirety to the Participant in accordance with Code Section 401(a)(9)(A)(i) and the Treasury Regulations thereunder, or distributed to the Participant over a period not extending beyond the life expectancy of the Participant or the life expectancy of such Participant and a designated beneficiary in accordance with Code Section 401(a)(9)(A)(ii) and the Treasury Regulations thereunder. (b) Notwithstanding any provision to the contrary and except as provided in paragraph (a) of this Section, the payment of benefits under this Plan to a Participant or his Beneficiary shall in all events commence within 60 days after the close of the Plan Year in which the latest of the following events occurs: (i) the attainment by the Participant of age 65; (ii) the tenth anniversary of the year in which the Participant first became a Participant in the Plan; or (iii) except as otherwise provided in Section 7.1(b), the Participant's Retirement or Termination of Employment with the Employer. (c) Notwithstanding any provision to the contrary in this Article VII, a Participant shall be entitled to receive a distribution of his Account Balance upon the termination of the Plan, provided that the Employer or Affiliate does not establish or maintain a successor plan (as defined in Treas. Reg. Section 1.401(k)-1(d)(3)). Any distributions made pursuant to this paragraph (c) shall be made in accordance with Section 13.2. VII-8 (d) Notwithstanding any provision to the contrary in this Article, a Participant shall be entitled to receive a distribution of his Vested Account Balance upon the occurrence of either: (i) The disposition by the Company to an unrelated corporation of substantially all of the assets (within the meaning of Section 409(d)(2) of the Code) used in a trade or business of the Company if the Company continues to maintain this Plan after the disposition, but only with respect to Employees who continue employment with the corporation acquiring such assets; or (ii) the disposition by the Company to an unrelated entity of the Company's interest in a subsidiary (within the meaning of Section 409(d)(3) of the Code) if the Company continues to maintain this Plan, but only with respect to Employees who continue employment with such subsidiary. The occurrence of any event described in this paragraph (d) shall be treated as a Termination of Employment and any distribution made as a result of the occurrence of such event shall be made in accordance with the provisions of Section 7.3. (e) Notwithstanding any other provision of this Article VII, any distributions of Company Stock shall be paid in shares of Company Stock (except to the extent of any fractional shares); provided, however, that the Participant or Beneficiary may elect to receive payment of such amounts in cash. 7.5 Hardship Distributions. A Participant shall be entitled to receive a hardship distribution of the total amount of the Participant's Salary Deferral Account (excluding the amount of any income attributable to Salary Deferral Contributions after December 31, 1988), if VII-9 the distribution is necessary to defray an immediate and severe financial hardship incurred by the Participant. The amount of the distribution may not exceed the amount required to meet the immediate financial need created by the hardship and not reasonably available from other resources of the Participant. The existence of an immediate and heavy financial need and the amount necessary to meet such need, will be determined by the Committee in accordance with the standards set forth below. (a) Immediate and Heavy Financial Need. For purposes hereof, an immediate and heavy financial need shall be limited to a need for funds for any of the following purposes: (i) Unreimbursed medical expenses described in Section 213(d) of the Code incurred by the Participant, the Participant's spouse, or any dependents of the Participant (as defined in Section 152 of the Code); (ii) Purchase (excluding mortgage payments) of a principal residence for the Participant; (iii) Payment of tuition and related educational fees (including room and board) for the next 12 months of post-secondary education for the Participant or his spouse, children, or dependents; (iv) Prevention of the eviction of the Participant from his principal residence or foreclosure on the mortgage on his principal residence; and (v) Any other reason recognized by the Commissioner of Internal Revenue Service in a revenue ruling, notice or other document of general applicability to constitute an immediate and heavy financial need. A Participant requesting a hardship withdrawal must represent that he has an emergency need for funds for one of the reasons specified above. The Participant shall provide VII-10 the Committee with any information and evidence which the Committee considers necessary in order to determine whether such a hardship exists and the amount of the withdrawal from the Plan that is necessary to meet the hardship. (b) Distribution Necessary to Satisfy the Financial Need. A hardship withdrawal shall be considered to be necessary to meet such an immediate and heavy financial need only under the following circumstances: (i) The distribution is not in excess of the amount of the immediate and heavy financial need of the Participant (that cannot be satisfied by distributions and/or non-taxable loans of the types described in subparagraph (ii) below). This distribution may include any amounts necessary to pay any federal, state or local income taxes or penalties reasonably anticipated to result from the distribution. (ii) The Participant has obtained (or requested) all distributions (including distributions after attaining age 59-1/2 and distributions of Rollover Contributions), other than hardship distributions, and all non-taxable loans currently available under all plans maintained by the Employer or any Affiliate. In the event of any hardship distribution to a Participant hereunder, such Participant may not make Salary Deferral Contributions (or comparable contributions) to the Plan or to any other deferred compensation plans maintained by the Employer or any Affiliate during the 12 calendar months immediately following the date of such hardship withdrawal. The Participant also may not make Salary Deferral Contributions (or comparable contributions) to the Plan or to any other tax-qualified retirement plan maintained by the Employer or any Affiliate, for the calendar year immediately following the calendar year of the hardship withdrawal, in VII-11 excess of the applicable limit under Section 402(g) of the Code for such next calendar year less the amount of such Participant's Salary Deferral Contributions (or comparable contributions) made on his behalf to the Plan or to any other tax-qualified retirement plan maintained by the Employer or any Affiliate for the calendar year of the hardship distribution. The foregoing provisions shall be applied on a uniform and nondiscriminatory basis and shall be subject to such changes as the Committee may deem to be necessary at any time to comply with Treasury Regulations or other rules issued under Section 401(k) of the Code. (c) Additional Operating Rules. The following rules shall apply to each request for a hardship distribution by a Participant: (i) The Participant's request for a hardship distribution shall be made on such forms as are provided from time to time by the Committee and the Participant shall furnish the Committee with such information as the Committee requests in its evaluation of the Participant's request. (ii) The amount of any hardship distribution shall in no event exceed the value of the Participant's Salary Deferral Account. (iii) Only one hardship withdrawal may be made in any twelve-month period. 7.6 Withdrawals of Rollover Contributions. (a) As of the first day of any calendar quarter, a Participant may withdraw all or a portion of his Rollover Contributions. The request for such withdrawal must be submitted in writing to the Committee. Any such withdrawal shall be made from the Investment Fund(s), consisting of Rollover Contributions, on a pro rata basis. VII-12 (b) In the event of a withdrawal under this Section, the Participant may continue his participation in the Plan without interruption and shall not, because of such withdrawal, be penalized under the Plan in any way. (c) The minimum amount that may be withdrawn under this Section is $500, or if less, the entire value of the Participant's Rollover Account. (d) The withdrawal of all or a portion of the Participant's Rollover Contributions shall be paid to the Participant as soon as practicable after the Participant's request is submitted to and approved by the Committee. 7.7 Withdrawals After Attainment of Age 59-1/2. (a) A Participant may apply in writing to the Committee for a withdrawal of all or a portion of (i) his Vested Employer Account, (ii) the vested portion of his Matching Account that is not invested in Company Stock and (iii) his Salary Deferral Account, at any time after attaining age 59-1/2. (b) In the event of a withdrawal under this Section, the Participant may continue his participation in the Plan without interruption and shall not, because of such withdrawal, be penalized under the Plan in any way. (c) The minimum withdrawal by a Participant under this Section 7.7 shall be $500 or, if less, the value of (i) the Participant's Vested Employer Account, (ii) the vested portion of his Matching Account that is not invested in Company Stock and (ii) his Salary Deferral Account. (d) The withdrawal shall be paid to the Participant as soon as practicable after the Participant's request is submitted to and approved by the Committee. VII-13 7.8 Rollovers to Other Plans or IRAs. (a) Notwithstanding any provision of the Plan to the contrary that would otherwise limit a Participant's election under the Plan, the Participant may elect, at the time and in the manner prescribed by the Committee, to have any portion of an Eligible Rollover Distribution paid directly to an Eligible Retirement Plan specified by the Participant in a Direct Rollover. (b) Definitions: For purposes of this Section 7.8, the following definitions shall apply: (i) "Eligible Rollover Distribution" shall mean any distribution of all or any portion of the Participant's Vested Account Balance, except that an Eligible Rollover Distribution does not include: (A) any distribution that is one of a series of substantially equal periodic payments (not less frequently than annually) made for the life (or life expectancy) of the Participant or the joint lives (or joint life expectancies) of the Participant and the Participant's designated beneficiary, or for a specified period of ten years or more; (B) any distribution to the extent such distribution is required under Section 401(a)(9) of the Code; (C) the portion of any distribution that is not includible in gross income (determined without regard to the exclusion for net unrealized appreciation with respect to employer securities); and (D) effective January 1, 2000, any distribution of Salary Deferral Contributions made pursuant to Section 7.5 on account of hardship. VII-14 (ii) "Eligible Retirement Plan" shall mean an individual retirement account described in Section 408(a) of the Code, an individual retirement annuity described in Section 408(b) of the Code, an annuity plan described in Section 403(a) of the Code, or a qualified trust described in Section 401(a) of the Code, that accepts the Participant's Eligible Rollover Distribution. However, in the case of an Eligible Rollover Distribution to a surviving spouse, an Eligible Retirement Plan shall mean only an individual retirement account or individual retirement annuity. (iii) "Participant" shall mean a Participant within the meaning of Section 1.33 who is entitled to receive a distribution under the Plan. In addition, the Participant's surviving spouse and the Participant's spouse or former spouse who is the alternate payee under a qualified domestic relations order as defined in Section 414(p) of the Code, shall be considered a Participant with regard to the interest of the spouse or former spouse. (iv) "Direct Rollover" shall mean a payment by the Plan to the Eligible Retirement Plan specified by the Participant. 7.9 Lost Participant. If payment of a Participant's Vested Account Balance is unable to be made under this Article VII because the Committee is unable to find the Participant or Beneficiary to whom payment is to be made, such Participant's Vested Account Balance shall be forfeited as of the last Valuation Date of the Plan Year in which the Committee determines that it is unable to find the Participant or Beneficiary. If the Participant or Beneficiary later makes a claim for such payment and the Committee determines that the claim is valid, the amount previ- VII-15 ously forfeited shall be restored and payment shall be made as soon as practicable following such determination. VII-16 ARTICLE VIII DESIGNATION OF BENEFICIARY 8.1 Right to Designate Beneficiary. Subject to the provisions of Section 8.3, each Participant may designate in a writing filed with the Committee, a Beneficiary to whom, in the event of the Participant's death, all benefits shall be payable. The Beneficiary so designated may be changed by the Participant (subject to the provisions of Section 8.3) at any time or from time to time during his life by signing and filing a new beneficiary designation form. The records of the Committee at the time of death shall be conclusive as to the identity of the proper Beneficiary and the amount properly payable, and payment made in accordance with such facts shall constitute a complete discharge of any and all obligations hereunder. 8.2 Applicable Rules if No Beneficiary Designation is Made. If no Beneficiary designation is on file with the Committee at the time of death of the Participant, or if such designation is not effective for any reason, then such death benefit shall be payable to the deceased Participant's spouse, if living. If such spouse does not survive him, payment shall be made to the Participant's issue per stirpes, or if no issue survive him, to his estate. 8.3 Payment of Account Balance to Spouse upon Death of Participant. If the Beneficiary designated by the Participant to receive the benefits payable hereunder in the event of his death is not his spouse, then, notwithstanding the applicable provisions of Sections 7.1, 7.2, 7.3 and Section 8.1, such benefits shall be payable to the Participant's surviving spouse unless (a) there is no surviving spouse; (b) the spouse consents, in the manner required under Section 417(a)(2)(A) of the Code, to the payment of such benefits to the designated Beneficiary; or (c) it is established to the satisfaction of the Committee that the spousal consent may not be VIII-1 obtained because of the conditions specified in Section 417(a)(2)(B) of the Code or in regulations promulgated under such Section of the Code. VIII-2 ARTICLE IX LOANS 9.1 Availability of Loans (a) Upon the application of any Participant, the Committee may direct the Trustee to make a loan to such Participant. (b) The terms and conditions on which the Committee will approve loans under the Plan will be applied on a reasonably equivalent basis and loans shall not be available to any Highly Compensated Employee in an amount equal to a percentage of his Account Balance which is greater than the percentage made available to other Participants. (c) The minimum loan shall be $1,000. Only one loan shall be made to a Participant during any Plan Year and only one loan may be outstanding at any time; provided, however, that for this purpose, any loan(s) that is rolled over into the Plan in accordance with Section 3.4(d) shall not be considered an outstanding loan(s) under the Plan. 9.2 Limitations on Loans. (a) In no event shall the total amount of a loan made to any Participant pursuant to this Section (when added to the outstanding balance of all other loans made by the Plan to the Participant) exceed the lesser of: (i) 50 percent of the Participant's Vested Account Balance (as defined in Section 7.3(a)) excluding any amounts invested in Company Stock or (ii) $50,000. (b) The $50,000 limitation set forth in paragraph (a) will be reduced by the excess, if any, of the highest outstanding loan balance from the Plan during the one year period IX-1 ending on the day before the date on which the loan was made over the outstanding loan balance from the Plan on the date that such loan was made. 9.3 Interest Rate. The interest rate charged on any loan made pursuant to this Section shall be determined by the Committee and shall be at least equivalent to the prevailing interest rate charged by persons in the business of lending money for loans which would be made under similar circumstances. Furthermore, the Participant's Account Balance may be charged a set-up fee and/or maintenance fee (as determined by the Committee). 9.4 Security for Loan. Any loan made pursuant to this Section shall be secured by the Participant's Vested Account Balance excluding any amounts invested in Company Stock. 9.5 Term of Loan. (a) The term of any loan shall not be for more than five (5) years; provided, however, that the term of a loan used for the purpose of acquiring a dwelling unit which within a reasonable time is to be used (determined at the time the loan is made) as the principal residence of the Participant may be for a period of up to fifteen (15) years. (b) Notwithstanding the foregoing, the Committee shall require any such loan to be immediately repaid as of the date the Participant ceases to be an Employee. If the loan is not repaid as of such date, the Committee shall use the remedies provided under Section 9.8 to recover such loan. 9.6 Loan Agreement. Each Participant to whom a loan is made under this Section shall enter into an agreement with the Committee. Such agreement shall set forth the principal amount of the loan, the repayment terms (subject to the provisions of Section 9.7), the interest rate and the provisions for securing the loan in accordance with Section 9.4. IX-2 9.7 Repayment of Loan. (a) Payments of principal and interest shall be made by payroll deduction or in any other manner agreed to by the Participant and the Committee; provided, however, that in all cases, loan repayments of principal and interest shall be made in substantially level amounts and shall be made no less frequently than quarterly over the term of the loan. (b) Principal and interest payments with respect to the loan shall be credited solely to the appropriate account of the borrowing Participant from which the loan was made based upon the Participant's current investment elections. Any loss caused by nonpayment or other default on a Participant's loan obligations shall be borne solely by such Participant's appropriate account. (c) If a Participant is on an unpaid leave of absence, such Participant shall be obligated to repay the loan in the manner agreed to by such Participant and the Committee. (d) A loan may be repaid in full as of any date without penalty. 9.8 Collection of Loan. In the event that the Participant does not repay such loan within the time and manner prescribed by the repayment terms, in addition to any legal remedies the Committee may have, the Committee shall offset the unpaid amount of such loan against any distribution payable to such Participant or Beneficiary under Article VII no earlier than at the time such distribution would first become payable thereunder and the Participant shall be considered to having consented to a deemed distribution of the unpaid loan amount. In the event that the amount of any such offset is not sufficient to repay the remaining balance of any such loan, such Participant shall be liable for and continue to make payments on any balance still due from him. IX-3 9.9 Loan Guidelines. The Committee may issue loan guidelines, which shall form part of the Plan, describing the procedures and conditions for making and repaying loans, and the administrative fees due from Participants to take a loan, and may revise those guidelines at any time and for any reason. IX-4 ARTICLE X TOP HEAVY RULES 10.1 Notwithstanding anything contained herein to the contrary, the provisions of this Article X shall become effective only for Plan Years in which the Plan is a Top-Heavy Plan. 10.2 The following words and phrases as used in this Article X shall have the meanings specified below: (a) "Aggregation Group" shall mean the Plan and any other plan of the Employer or Affiliate intended to qualify under Section 401(a) of the Code: (i) in which a Key Employee is a participant; (ii) which enables a plan in which a Key Employee is a participant to meet the requirements of Section 401(a) or Section 410 of the Code. The Aggregation Group shall also include any plan that is not described above, but which is designated by the Employer to be part of such Group, provided that the Group continues to meet the requirements of Code Sections 401(a)(4) and 410 with such plan being taking into account. (b) "Compensation" shall mean the term as defined in Section 1.11. (c) "Determination Date" shall mean, with respect to any Plan Year, the last day of the preceding Plan Year or, in the case of the first Plan Year, the last day thereof. (d) "Key Employee" shall mean any person described in Section 416(i)(l) of the Code (which is herein incorporated by this reference) and shall, with respect to a Key Employee's cumulative accrued benefits and aggregated account balances, include any Beneficiary of such Key Employee. X-1 (e) "Non-Key Employee" shall mean any Employee who is not a Key Employee and shall, with respect to a Non-Key Employee's cumulative accrued benefits and aggregated account balances, include a Beneficiary of such Non-Key Employee. (f) "Top-Heavy Group" shall mean the Aggregation Group if the sum, as of the Determination Date, of: (i) the present value of the cumulative accrued benefits for Key Employees under all defined benefit plans in such Aggregation Group, plus (ii) the aggregate of the accounts of Key Employees under all defined contribution plans included in such Aggregation Group, exceed sixty percent (60%) of a similar sum determined for all employees. (g) "Top-Heavy Plan" shall mean with respect to any Plan Year, the Plan if, as of the Determination Date, the Plan is not part of an Aggregation Group and the aggregate of the accounts under the Plan of all Key Employees exceeds sixty percent (60%) of the aggregate of the accounts under the Plan of all employees, or if, as of the Determination Date, the Plan is part of a Top-Heavy Group. In determining the amount of the account or the cumulative accrued benefit of any employee for purposes of determining if the Plan is a Top-Heavy Plan, including the determination of whether the Aggregation Group is a Top-Heavy Group, the present value of the cumulative accrued benefit for the employee and the amount of the account of the employee, as the case may be with respect to any plan, shall be increased by the aggregate distributions made with respect to such employee under such plan during the Plan Year that includes the Determination Date or during the four preceding Plan Years; and the credit balance of any employee who has not received any Compensation from the Employer at any time during the 5-year period ending on the Determination Date shall be disregarded. X-2 10.3 Notwithstanding the provisions of Article III hereof, for each Plan Year in which this Plan is a Top-Heavy Plan, the Employer shall make a contribution (not including Salary Deferral Contributions) on behalf of each Eligible Employee who is a Non-Key Employee and is employed by the Employer on the last day of such Plan Year (regardless of the Hours of Service credited to such Eligible Employee for such Plan Year), in an amount equal to the lesser of (a) 3 percent of such Eligible Employee's Compensation for such Plan Year or (b) the largest percentage contribution amount (including Salary Deferral Contributions) allocated to any Key Employee for such Plan Year. X-3 ARTICLE XI ADMINISTRATION OF THE PLAN 11.1 Definitions. For purposes of this Plan: (a) "Fiduciary" shall mean any person who exercises any discretionary authority or discretionary control respecting the management or disposition of Plan assets, renders any investment advice for a fee or other compensation with respect to Plan assets, or exercises any discretionary authority or responsibility for Plan administration, and includes the Named Fiduciaries. (b) "Named Fiduciaries or Named Fiduciary" shall mean: (i) The Committee established to administer the Plan. The Committee shall have no responsibility relating to the management and control of the assets of the Plan, other than the responsibility to reconsider the policy and method of funding the Plan as provided in this Article. (ii) The Trustee who shall be a Named Fiduciary only with respect to the management and control of the assets of the Plan. 11.2 Administration. (a) The Committee shall have the authority to control and manage the operation and administration of the Plan in accordance with the responsibilities set forth in this Article, and shall have sole authority and discretion to determine all questions arising in the administration of the Plan, including questions relating to eligibility for, and the amount of, benefits under the Plan. The Committee shall consist of one or more individuals appointed by the Company. In the absence of any such appointment, the Company shall serve as the Committee. XI-1 (b) A majority of the Committee members serving at the time shall constitute a quorum for the transaction of business of the Committee. All resolutions or other actions taken by the members at any meeting shall be by a vote of a majority of those present at such meeting. Except when reconsidering the policy and method of funding the Plan under this Article, upon concurrence in writing of the majority of the Committee members at the time in office, they may take action otherwise than at a meeting of the Committee provided that detailed records of such action shall be kept. (c) The Committee may authorize any one or more individuals to execute any documents on behalf of the Committee, and any such documents so executed shall be accepted and relied upon as representing action by the Committee until the Committee shall revoke such authorization. (d) The Committee may from time to time establish rules and regulations to implement the provisions of this Plan. The records of the Employer, as certified to the Committee, shall be conclusive with respect to any and all factual matters dealing with the employment of a Participant. The Committee shall interpret the Plan and shall have sole authority and discretion to determine all questions arising in the administration, interpretation and application of the Plan, and all such determinations by the Committee shall be conclusive and binding on all persons subject, however, to the provisions of the Code and ERISA. (e) The Committee shall direct the Trustee to make payments from the Fund to Participants or Beneficiaries who qualify for such payments hereunder. Such order to the Trustee shall specify the name of the Participant or Beneficiary, his Social Security number, his address, and the amount and frequency of such payments. XI-2 (f) The Trustee may request instructions in writing from the Committee on any matters affecting the Trust and may rely and act thereon. (g) The Committee shall be the agent for receipt of service of process by the Plan. 11.3 Allocation and Delegation of Responsibilities. (a) The Committee may allocate among its members and may delegate to persons who are not members of the Committee any of its duties and responsibilities other than the responsibility to reconsider the policy and method of funding the Plan as provided in this Article. (b) The Committee may employ or engage accountants, legal counsel, actuaries, custodians, agents or other persons to render advice or perform ministerial duties with regard to any responsibility or duty which the Committee has under the Plan. To the extent permitted by law, a member of the Committee shall not be precluded from rendering such advice in his individual capacity, and shall be entitled to rely upon and be fully protected in any action taken by him in good faith in reliance upon any opinions or reports which shall be furnished to him by such accountants, legal counsel, actuaries, custodians, agents or other persons. (c) The Company may appoint an Investment Manager or Managers to manage, acquire and dispose of any assets of the Plan. Any such Investment Manager shall be an investment adviser registered under the Investment Advisers Act of 1940, a bank as defined in that Act, or an insurance company qualified to perform investment services under the laws of at least two States. The appointment of any such Investment Manager shall not be effective until such Investment Manager has acknowledged in writing that it is a Fiduciary with respect to the Plan. XI-3 (d) The Committee shall periodically, but at least annually, review the performance of any persons to whom any duties or responsibilities have been allocated or delegated, and any persons who are employed or engaged to render advice or perform ministerial services. The Committee may require such formal or informal reports from such persons as it shall deem prudent and appropriate, and shall promptly terminate such allocation, delegation, employment, or engagement upon its determination that any such person or persons have failed to discharge their obligations to the satisfaction of the Committee or with the standard of care which would be imposed upon the Committee in the absence of such allocation, delegation, employment, or engagement. (e) The Plan may purchase insurance for any Fiduciary to cover liability or losses occurring by reason of the act or omission of such Fiduciary, but such insurance shall permit recourse by the insurer against such Fiduciary in the case of a breach of a fiduciary obligation. (f) The Company shall indemnify any Committee member, director, officer, shareholder or Employee against any and all claims, losses, damages, expenses and liabilities arising from their responsibilities in connection with the Plan, unless the same is determined to be due to gross negligence or willful misconduct. (g) Nothing herein shall prevent any person or group of persons from serving in more than one fiduciary capacity with respect to the Plan, nor prevent an Employee or Participant from serving as a Fiduciary with respect to the Plan. 11.4 Standard of Conduct. (a) In discharging their duties, the Fiduciaries shall act with the skill, care, prudence and diligence under the circumstances then prevailing that a prudent man acting in a XI-4 like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims. All Fiduciaries shall discharge their duties with respect to this Plan solely in the interests of the Participants and Beneficiaries and for the exclusive purpose of providing benefits to Participants and their Beneficiaries and paying reasonable expenses of administering the Plan; provided that contributions (or the assets attributable thereto) may be returned to the Employer under Section 3.6 of this Plan. The foregoing paragraph is not intended as a comprehensive statement of all responsibilities and duties of Fiduciaries under ERISA or any other applicable law, and the Fiduciaries shall be subject to all other duties and responsibilities which may be imposed by ERISA or other applicable law. (b) Acquisition and holding by the Plan of "qualifying employer securities" and "qualifying employer real property", as defined in ERISA, shall be permitted in accordance with the provisions of Section 407 of ERISA. For this purpose, stock of Cott Corporation shall be considered qualifying employer securities. (c) The Committee shall periodically, but at least annually, reconsider the policy and method of funding the Plan and shall take such action as it deems necessary and advisable to implement its determinations. Such reconsideration shall take into account the short and long term financial needs of the Plan. 11.5 Resignation and Removal. (a) A member of the Committee may resign by delivering to the Company a written notice of his resignation to take effect not less than sixty (60) days after the delivery thereof, unless notice of a shorter duration shall be accepted as adequate. XI-5 (b) Any member of the Committee may be removed by the Company by delivering to such member or by mailing to him via registered mail at his last known address, a written notification of such removal duly executed by the Company, which shall take effect not less than sixty (60) days after delivery thereof, unless notice of a shorter duration shall be accepted as adequate. (c) When any member of the Committee shall cease to serve because of resignation, death, removal or otherwise, if no Committee members would continue to serve, the Company shall fill the vacancy; if one or more Committee members would otherwise continue to serve, the Company may, but need not, fill the vacancy. 11.6 Bonding Requirement. All Fiduciaries and any other persons who handle assets of the Plan shall serve under such bond as may be required by ERISA, or other applicable law, but in the absence of any such requirement, shall serve without bond. The Plan shall purchase the bond for any Committee member, director, officer, shareholder or Employee who is required to serve under bond. 11.7 Benefit Claims and Appeals. The claim of any person (hereinafter referred to as the "Claimant") with respect to any benefits to which such Claimant may be entitled under the Plan shall be considered in accordance with the following procedure: (a) Any Claimant may make written application to the Committee for benefits to which he believes he is entitled, at the time the application is made, under the Plan. Such application shall set forth all information necessary to determine whether the claim should be approved or denied. The Committee shall furnish to the Claimant an acknowledgment of his application, including a notice of the time limits set forth in this Section 11.7. XI-6 (b) The Committee shall either approve the claim and take any appropriate action, or deny the claim. Such approval or denial shall be accomplished within an initial period of ninety (90) days after receipt of the claim by the Committee unless special circumstances require an extension of time for processing the claim. If such an extension is required, written notice of the extension shall be furnished to the Claimant prior to the termination of the initial ninety (90) day period. Any such extension shall expire no later than ninety (90) days after the end of the initial period. The extension notice shall describe the special circumstances requiring the extension of time and the expected date of decision. (c) If a claim is denied, the Committee shall furnish a written notice of such action to the Claimant within the applicable time limit described in paragraph (b). Such notice shall set forth, in a manner calculated to be understood by the Claimant: (i) the specific reason or reasons for the denial; (ii) specific reference to the pertinent provisions of this Plan on which the denial is based, (iii) a description of any additional material or information necessary for the Claimant to perfect his claim and an explanation of why such material or information is necessary; and (iv) an explanation of the review procedure, as set forth in paragraph (d). (d) A Claimant whose claim has been denied (or to whom no written notice of denial has been furnished within the applicable time limit described in paragraph (b)) may appeal by written notice to the Committee requesting a review of the denial. The Claimant's written XI-7 request for review must be submitted to the Committee within sixty (60) days after his receipt of the notice of the denial. A Claimant who wishes to appeal or has appealed a denial may: (i) review all pertinent documents relating to his claim; and (ii) submit issues and comments in writing for consideration by the Committee. (e) The Committee shall render the decision on review within an initial period of sixty (60) days after receipt of the Claimant's written request for review, unless special circumstances (including the need to hold a hearing, if the Committee has provided a procedure for holding hearings) require an extension of time. Any such extension shall expire no later than sixty (60) days after the end of the initial period. If such an extension is required, written notice thereof shall be furnished to the Claimant before the end of the initial period. The decision on review shall be in writing and shall include specific reasons for the decision, written in a manner calculated to be understood by the Claimant with specific references to the pertinent provisions of the Plan on which the decision is based. (f) Any claim, request for review or other action which may be made or taken by the Claimant under this Section may be made or taken by the Claimant's duly authorized representative. 11.8 Records and Reports. The Committee shall keep a record of all proceedings and acts and shall keep such books of account, records, and other data as may be necessary for proper administration of the Plan. The Committee shall make the records available for examination during business hours to the Employer or any person who may be entitled to benefits under the terms of this Plan, except that any such person shall examine only such records as pertain exclusively to such person, the Plan and Trust Agreement as currently in effect or hereafter XI-8 amended, and any other documents which such person may be entitled to examine under ERISA or any other applicable law. The Committee shall also furnish to any person who may be entitled to benefits under the terms of this Plan such reports, descriptions, notifications or other materials as may be required under ERISA, the Code or other applicable law. 11.9 Expenses and Compensation of Fiduciaries. (a) All Fiduciaries, except those receiving full time pay from the Employer may receive from the Plan such reasonable compensation for services rendered to the Plan as shall be determined by the Company. (b) All Fiduciaries may be reimbursed for expenses reasonably incurred in performance of their duties upon request, unless the contract, if any, for services by such fiduciaries does not provide for the requested reimbursement. (c) The Plan may make advances to a Fiduciary to cover expenses to be properly and actually incurred by such Fiduciary in the performance of that Fiduciary's duties with respect to the Plan, provided that (i) the amount of the advance shall be reasonable with respect to the amount of the expense which is to be incurred, and (ii) the Fiduciary must account to the Committee at the end of the period covered by the advance for the expenses actually incurred. (d) Nothing shall preclude a Fiduciary from receiving any benefit to which he may be entitled under the terms of the Plan, provided that such benefit shall be computed and paid on a basis which is consistent with the terms of the Plan as applied to all other Participants and Beneficiaries. XI-9 (e) The Committee shall not be bound by any notice or other communication unless and until it shall have been received in writing addressed to the Company at: Human Resources Department 5650 Whitesville Road - Suite 201 Columbus, GA 31904 XI-10 ARTICLE XII THE TRUST FUND 12.1 Trust Agreement. The Company has entered into an Agreement of Trust (the "Trust Agreement") with the Trustee, providing for the administration of the Fund by the Trustee, in such form and containing such provisions as are deemed appropriate. The Trust Agreement shall be deemed to form a part of this Plan, and any and all rights and benefits which may accrue to any person under this Plan shall be subject to all the terms and provisions of said Trust Agreement. 12.2 Investment Funds. The Fund shall be composed of (i) Investment Funds designated by the Committee consisting of amounts in Participants' Salary Deferral Accounts, Matching Accounts, Employer Accounts and Rollover Accounts and the earnings thereon that accrue from time to time and (ii) amounts invested in Company Stock. 12.3 No Segregation of Participants' Interests. Each Investment Fund may be maintained on an unallocated, undivided basis with no segregation of the interests of the Participants. XII-1 ARTICLE XIII AMENDMENT, TERMINATION AND DISCONTINUANCE OF CONTRIBUTIONS 13.1 (a) The provisions of this Plan may be amended at any time and from time to time, by the Company or by the Committee to the extent authority to make amendments to the Plan has been delegated to the Committee by the Company's Board of Directors. No such amendment, however, shall: (i) vest in the Company any interest or control over the funds accumulated in accordance with this Plan or the benefits provided hereunder, except as provided in Section 3.6; (ii) operate to deprive a Participant of any rights or benefits irrevocably vested in him under the Plan prior to such amendment; provided, however, that if any amendment shall be necessary to conform the Plan to the provisions and requirements of the Code, any regulation issued pursuant thereto, or any other pertinent provisions of federal or state law, no such amendment shall be considered prejudicial to the interest of a Participant or his Beneficiary, or a diversion of any part of the Fund to a purpose other than for their exclusive benefit; or (iii) increase the powers, duties or liabilities of the Trustee without the Trustee's written consent. (b) Any modification or amendment of the Plan may be made retroactive, if the Company, on the advice of counsel, deems such retroactivity to be necessary in order for the Plan to conform to, or satisfy the conditions of any law, governmental regulations or ruling, or to meet the requirements of the applicable sections of the Code. XIII-1 13.2 (a) This Plan may be terminated by the Company through action of the Company's Board of Directors. In the event of the termination or partial termination of the Plan, or if there is a complete discontinuance of contributions under the Plan, each affected Participant's interest in the Fund shall be fully vested as of the date of such termination, partial termination or complete discontinuance of contributions under the Plan. (b) If the operations of the Employer continue after termination, the Fund shall either (i) continue to be held for distribution in precisely the same time and manner as set forth in Article VII hereof or (ii) shall be held for distribution by the Trustee who shall distribute to the Participants then participating in the Fund the full amount standing to their credit, less the administrative costs to the Trustee for such distribution, in a lump sum cash payment in accordance with Article VII; provided, however, that subparagraph (ii) shall apply only if the distribution is permitted under Section 401(k)(10) of the Code and the Regulations thereunder. (c) If the Plan is terminated and the Employer dissolves or ceases operation, the Fund shall be held for distribution by the Trustee who shall distribute to the Participants then participating in the Fund the full amount standing to their credit, less the administrative costs to the Trustee for such distribution, in a lump sum cash payment in accordance with Article VII, provided that such distribution is permitted under Section 401(k)(10) of the Code and the Regulations thereunder. XIII-2 ARTICLE XIV MISCELLANEOUS 14.1 Nothing contained in this Plan or in the Trust shall be held or construed to create any liability upon the Employer to retain any Employee in its employ. The Employer reserves the right to discontinue the services of any Employee without any liability except for salary or wages that may be due and unpaid whenever, in its judgment, its best interests so require. 14.2 This Plan and the Trust is for the exclusive benefit of the Participants and their Beneficiaries. This Plan should be interpreted in a manner consistent with this intent and with the intention that the Trust satisfy those provisions of the Code relating to qualified employee plans. 14.3 The Employer shall have no liability in respect to the payment of benefits or otherwise under the Plan; and the Employer shall have no liability in respect to the administration of the Trust or of the Fund held by the Trustees, and each Participant and/or Beneficiary shall look solely to the Fund for any payments or benefits under the Plan. 14.4 The Employer may pay all administrative expenses of the Plan and Trust, including the compensation of consultants, auditors and counsel, but the Employer shall not be obligated to pay such expenses. If the Employer elects not to pay such expenses, the expenses shall be paid from the Fund. Any expenses directly relating to the investments of the Fund, such as taxes, commissions, and registration charges, shall be paid from the Fund. 14.5 Except as may otherwise be provided under Section 401(a)(13)(B) and (C) of the Code, no benefit under this Plan shall be subject in any manner to anticipation, pledge, encumbrance, alienation or assignment, and any attempt to anticipate, pledge, encumber, alienate or assign any such benefit shall be void, nor shall any such benefits be in any way subject to XIV-1 seizure, attachment or other legal or equitable process for the debts, contracts or liabilities of any Participant or Beneficiary. For purposes of this Section 14.5, payments may be made under this Plan to an "alternative payee" (as defined in Code Section 414(p)(8)) prior to the Participant's "earliest retirement age" (within the meaning of Code Section 414(p)(4)(B)) to the extent that such payments are consistent with the qualified domestic relations order. 14.6 In the case of any merger or consolidation of the Plan with, or transfer of Plan assets or liabilities to, any other plan, provisions shall be made so that each Participant in the Plan on the date thereof (if the Plan then terminated) would receive a benefit immediately after the merger, consolidation or transfer which is equal to or greater than the benefit he would have been entitled to receive immediately prior to the merger, consolidation or transfer if the Plan had then terminated. 14.7 If an Employee transfers from employment with the Employer to employment with an Affiliate, his employment shall be deemed terminated for purposes of the Plan at such time as he shall be employed by neither Employer nor Affiliate. 14.8 Effective December 12, 1994, notwithstanding any provision of the Plan to the contrary, contributions and service credit with respect to qualified military service will be provided in accordance with Section 414(u) of the Code. 14.9 This Plan shall be construed and administered in complete accordance with ERISA and, to the extent not preempted by such Act, the laws of the State of Georgia. 14.10 Pronouns shall be interpreted so that the masculine pronoun shall include the feminine, and the singular shall include the plural. XIV-2 14.11 Headings of sections and subsections of this Plan are inserted for convenience of reference. They constitute no part of this Plan and are not to be considered in the construction thereof. 14.12 If any provision of this Plan is held to be illegal, invalid or unenforceable for any reason, this shall not affect any other provision of the Plan, and this Plan shall be construed as if said illegal, invalid or unenforceable provision had never been inserted herein. 14.13 The Plan set forth herein shall amend and restate, effective as of January 1, 1997, unless otherwise provided herein, all provisions of the Plan, as in effect on December 31, 1996, except that the rights of former Employees who terminated employment, died or retired prior to January 1, 1997, shall be governed by the terms of such Plan as in effect at the time of the termination of employment, death or retirement. XIV-3 IN WITNESS WHEREOF, BCB USA Corp. has executed this Plan on this 22nd day of December, 2000. Attest: BCB USA CORP. /s/ Jennifer Sears By: /s/ Colin D. Walker ------------------------ -------------------------------- Title: Senior Vice President XIV-4