EMPLOYEE SAVINGS PLAN

EXHIBIT 4.6

EXHIBIT 4.6

 

EXECUTION COPY

IDAHO POWER COMPANY

EMPLOYEE SAVINGS PLAN

Amended and Restated as of October 1, 2000 (revised)

TABLE OF CONTENTS

Page

IDAHO POWER COMPANY

EMPLOYEE SAVINGS PLAN

Amended and Restated as of October 1, 2000 (revised)

Introduction

The Company originally adopted the Idaho Power Company Employee Savings Plan (the “Plan”) on July 1, 1974, and the Plan has been amended and restated from time to time thereafter.  Effective October 9, 1994, the Idaho Power Company Employee Stock Ownership Plan was merged with and into the Plan.  The Plan was amended and restated effective January 1, 1989, and such restated Plan received a favorable determination letter from the Internal Revenue Service, dated May 20, 1996, which covered certain amendments made to the Plan on July 11, 1996.  The Plan was further amended on July 11, 1996, March 13, 1997, and December 31, 1997.  On February 19, 1998, the Plan was then amended and restated (“1998 Restatement”) to incorporate the prior amendments, make further clarifying and design changes, and to reflect provisions of the Small Business Job Protection Act of 1996 (“SBJPA”), the Uniform Services Employment and Reemployment Rights Act (“USERRA”), Rev. Rul. 94-76 and the Taxpayer Relief Act of 1997.  The 1998 Restatement received a favorable determination letter dated February 13, 1999, covering amendments thereto dated February 19, 1998, October 2, 1998, October 9, 1998, and April 2, 1999.

This document completely amends and restates the Plan to incorporate the prior amendments, make further clarifying changes, and to reflect provisions, as applicable, of the Uruguay Round Agreements Act (“GATT”) and the Internal Revenue Service Restructuring Act of 1998.

This restatement generally will be effective October 1, 2000, except to the extent that certain provisions either are not required by law to be effective until a later date, or are required by law to be effective at an earlier date, and except as otherwise specifically indicated.  Notwithstanding the foregoing, provisions of this restatement shall not increase benefits or rights for Participants who terminated employment prior to October 1, 2000, unless otherwise specifically indicated or as otherwise required by law.

This restatement was adopted to include additional language in Section 9.8 and a new subsection 9.8.4 effective January 1, 2001.  These provisions were added after the other provisions of the restatement were adopted on October 12, 2000, making this the second restatement of the Plan effective October 1, 2000

In connection with this amendment and restatement, the Company intends to preserve all Code section 411(d)(6) protected benefits within the meaning of Treasury Regulation § 1.411(d)-4 and this document should be interpreted accordingly.  The Plan is intended to qualify under Code sections 401(a) and 401(k), and the Trust Agreement established pursuant to the Plan is an employees’ trust intended to constitute a tax-exempt organization under Code section 501(a).

Prior to January 1, 1998, the Plan was designed to qualify as a profit-sharing plan for purposes of sections 401(a), 402, 412 and 417 of the Code.  Effective January 1, 1998, the Plan was converted to a stock bonus plan under Code section 401(a) and an employee stock ownership plan within the meaning of Code section 4975(e)(7) (“ESOP”) that is designed to invest primarily in Company Stock.  Effective January 1, 2001, only the Company Stock Fund portion of the Plan will constitute an ESOP, and the remainder of the Plan will be a non-ESOP stock bonus plan.  See Article 5 for more information regarding the Non-ESOP Company Stock Fund and the ESOP Company Stock Fund.  It is intended that the Plan will at all times meet the stock distribution requirement of Code section 409(h)(1)(A) by permitting Participants to direct the investment of their Accounts into Company Stock prior to distribution.  It is further intended that the Plan will at all times meet the ESOP diversification requirements of Code section 401(a)(28)(B) by permitting Participants to direct the investment of their entire Account into investments other than Company Stock, thereby providing complete diversification at all times.

“ Administrator ” means the Company, or the Committee, if one is appointed pursuant to Section 9.1.

“ Account ” means the records, including subaccounts, maintained by the Administrator in the manner provided in Article ‎4 to determine the interest of each Participant in the assets of the Plan and may refer to any or all of the Participant’s Deferral Contribution Account, After Tax-Account, Matching Contribution Account, and, Rollover Account, as applicable.

“ After Tax Contribution ” means a contribution described in Section 3.3.

“ Alternate Payee ” means any spouse, former spouse, child or other dependent of a Participant who is recognized by a qualified domestic relations order as having a right to receive all or a portion of the Account of a Participant under the Plan.

“ Beneficiary ” means any person or persons designated in writing by the Participant (which designation may be changed from time to time) to receive benefits under the Plan payable upon the death of a Participant.  If the Participant is married, designation of a Beneficiary who is not the Participant’s Spouse shall require spousal consent which is notarized.  If no such designation is in effect at the time of death of the Participant, or if no person so designated shall survive the Participant, the Beneficiary shall be his Spouse, or if the deceased Participant has no surviving Spouse, his estate.

“ Board of Directors ” or “ Board ” means the Board of Directors of the Company.

“ Code ” means the Internal Revenue Code of 1986, as amended from time to time and, as appropriate, any predecessor provisions.

“ Company ” means Idaho Power Company, an Idaho corporation, and any successor thereto.

“ Company Stock ” means shares of common stock, par value $2.50 per share, of IDACORP, Inc., which stock is publicly traded.

“ Compensation ” with respect to any Participant means the Base Pay of a Participant, plus amounts under any Company approved annual incentive plan of the Employer and amounts under any Company approved commission arrangement of the Employer (including, but not limited to, payments based on a percentage of sales, profits, production labor, or production sales), paid during the Plan Year for services rendered to his Employer.  A Participant’s Compensation shall include Deferral Contributions under this Plan and any deductions under Code section 125 or 129.

“Base Pay” means for regular full-time employees, the salary established by the wage schedule for each position plus any partial disability payments, less any reductions for time not worked.  For other employees, base pay means hours worked times hourly rate.  Payment for compensated time off is included in base pay.  Overtime is not included in Base Pay.

Compensation will exclude amounts (including but not limited to severance or separation pay or annual incentive compensation) paid after the Participant terminates employment with the Controlled Group, or otherwise ceases to be eligible to participate in the Plan; provided, however, that payments made in the first month after termination relating to pre-termination wages or payoff of unused vacation and/or sick leave will constitute Compensation.  Compensation for a Long Term Disability Participant shall mean the amount of compensation received from the Employer’s Long Term Disability Plan for a Plan Year.

For purposes of determining benefits under the Plan, Compensation is limited to $160,000, as indexed for the cost of living pursuant to Code sections 401(a)(17) and 415(d), per Plan Year.

“ Controlled Group ” means the Company and any and all other corporations, trades and businesses, the employees of which, together with employees of the Company, are required by Code section 414 (b), (c), (m) or (o) to be treated as if they were employed by a single employer.

“ Controlled Group Member ” means each corporation or unincorporated trade or business that is or was a member of the Controlled Group, but only during the period when it is or was such a member.

“ Disability ” (or “ Disabled ”) means a physical or mental condition of a Participant that constitutes total and permanent disability for purposes of the Company’s Long Term Disability Plan.

“ Distributee ” means an Employee; a former Employee; an Employee’s or former Employee’s surviving Spouse; or an Employee’s or former Employee’s Spouse or former spouse who is an Alternate Payee under a QDRO.

“ Eligible Retirement Plan ” means an individual retirement account described in Code section 408(a), an individual retirement annuity described in Code section 408(b), an annuity plan described in Code section 403(a), or a qualified trust described in Code section 401(a), which accepts a Distributee’s Eligible Rollover Distribution.  In the case of a Distributee who is a surviving Spouse, Eligible Retirement Plan means an individual retirement account or individual retirement annuity.

“ Employee ” means any person who is (i) employed by any Controlled Group Member if their relationship is, for federal income tax purposes, that of employer and employee or (ii) a “leased employee” of a Controlled Group Member within the meaning of Code section 414(n)(2), but only for purposes of the requirements of Code section 414(n)(3).

“Employee Contributions” means Deferral Contributions and After Tax Contributions.

“ Employer ” or “ Participating Employer ” means the Company and any Controlled Group Member or organizational unit thereof which meets the requirements of Section ‎14.1 of the Plan.  The Company will maintain a list of currently participating Employers, along with the effective dates of their participation.  The Company may choose to satisfy the obligation of any Employer hereunder.

“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended from time to time.

“ Investment Funds ” means the Funds described in Article ‎5.

“Long Term Disability Participant” means a Participant who qualifies for, and receives benefits from, the Employer’s Long Term Disability Plan.

“ Matching Contribution ” means a contribution described in Section 3.4.

“ Named Fiduciary ” means the Employer, the Administrator and any other entity or individual designated in writing by the Employer as a “fiduciary” as defined in section 3(21) of ERISA.  “Named Fiduciary” shall also mean any person designated by the Administrator to review a claim denial, in accordance with Section ‎9.8.

“ Participant ” means an Employee or former Employee who has met the applicable eligibility requirements of Article ‎2 and who has not yet received a distribution of the entire amount of his interest in the Plan.

“ Plan ” means the IDAHO POWER COMPANY EMPLOYEE SAVINGS PLAN, the terms of which are set forth herein, as amended from time to time.

“ Plan Year ” means the period with respect to which the records of the Plan are maintained, which shall be the 12-month period beginning on January 1 and ending on December 31.

“ QDRO ” means a qualified domestic relations order within the meaning of Code section 414(p).

“ Qualified Matching Contribution ” means a contribution by an Employer to the Plan pursuant to Section ‎10.7 which is used to satisfy the Contribution Percentage test set forth in that Section.

“ Qualified Non-Elective Contribution ” means a contribution by an Employer to the Plan that is made pursuant to Section ‎10.6.  Such contributions shall be considered Deferral Contributions for all purposes of the Plan and shall be used to satisfy the “Actual Deferral Percentage” test as set forth in Section ‎10.6.

“ Qualified Plan ” means an employee benefit plan that is qualified under Code section 401(a).

“ Rollover Contribution ” means a contribution described in Section ‎3.5.

“ Self-Directed Brokerage Fund ” means an Investment Fund that consists solely of all or part of the assets of a single Participant’s Account, which assets the Participant controls by investment directives to the Trustee and which may not be commingled with assets of any other Participant’s Accounts.

“ Spouse ” means the person to whom a Participant is legally married at a specified time; “surviving Spouse” means the person to whom a Participant is legally married at the time of his death.  The term “Spouse” shall be interpreted in a manner consistent with section 105(b) of the Code.

“ Trust Agreement ” means the agreement or agreements between the Company and the Trustee establishing a trust fund to provide for the investment, reinvestment, administration and distribution of contributions made under the Plan and the earnings thereon, as amended from time to time, including any successor trust that may be established with a successor trustee.

“ Trust Fund ” or “ Trust ” means the assets of the Plan held by the Trustee pursuant to the Trust Agreement.

“ Trustee ” means the one or more individuals or organizations who have entered into the Trust Agreement as Trustee(s), and any duly appointed successor.

“ Valuation Date ” means the date with respect to which the Trustee determines the fair market value of the assets comprising the Trust Fund or any portion thereof.  The regular Valuation Date shall mean every business day of the Trustee, if a financial institution; otherwise, every business day on which the New York Stock Exchange is open.

2.           PARTICIPATION

 

Each Employee, other than an ineligible Employee under Section 2.3, will be eligible to become a Participant once he has attained age 18, if he is then employed by an Employer.

No Matching Contributions will be due for Employee Contributions attributable to periods prior to when a Participant has completed twelve (12) months of employment, which need not be consecutive, with a Controlled Group Member.  For the purpose of this Section, and subject to Section ‎8.1, the twelve (12) months of employment generally will include those periods of employment with any Controlled Group Member, regardless of whether the Controlled Group Member was a Participating Employer during the period(s) to be included.

An Employee eligible to participate in the Plan may enroll as a Participant on his hire date or as of any subsequent pay period.  Long Term Disability Participants who were not receiving benefits from the Employer’s Long Term Disability Plan as of January 1, 1998 are not eligible to contribute to the Plan.

An Employee who is otherwise eligible to participate in the Plan will not become or continue as an active Participant if:

An Employee or Participant who is or becomes ineligible to participate in the Plan will be eligible to participate in the Plan on the first day he is no longer described in subsection ‎2.3.1 and is credited with one or more hours of service by an Employer, provided that he has otherwise met the requirements of Section ‎2.1.  Such an Employee or Participant may commence or resume participation in the Plan as soon as administratively feasible, after completing the enrollment procedure established by the Administrator.

3.           CONTRIBUTIONS

 

Upon enrollment, a Participant may direct that his Employer make Deferral Contributions for him to the Trust Fund of from 1% to 15% (20%, effective October 1, 2000) of his Compensation (in 1% increments) for each pay period.  If a Participant’s Deferral Contributions must be reduced to comply with the requirements of Section ‎10.6 or the requirements of applicable law, his Deferral Contributions as so reduced will be the maximum percentage of his Compensation permitted by such Section or law notwithstanding the 1% increments requirement.  A Participant’s Deferral Contributions and After Tax Contributions are limited to 20% of a Participant’s Compensation for a Plan Year.  Long Term Disability Participants are not eligible to make Deferral Contributions.

Deferral Contributions made for a Participant during a pay period pursuant to a salary reduction agreement will be transmitted to the Trustee as soon as practicable, but in no event later than the period prescribed by law.

The percentage or percentages designated by a Participant shall continue in effect, notwithstanding any changes in the Participant’s Compensation.  A Participant may, however, in accordance with the percentages permitted by subsection ‎3.1.1, change the percentage of his Deferral Contributions, effective as of any pay period (with respect to all pay periods ending on or after such period), by filing a notice with the Administrator prior to such pay period in accordance with procedures established by the Administrator from time to time.  A Participant may suspend his Deferral Contributions at any time, to be effective as soon as administratively feasible thereafter.

A Participant who suspends his Deferral Contributions may, upon prior notice to the Administrator, resume making such Deferral Contributions as of any pay period.

The Administrator may establish procedures for electing and changing deferrals which may, without limitation, provide for different notice periods, different methods (including telephonic or electronic, as permitted by applicable law) of making deferral elections and changes and more or less frequent times at which deferral elections or changes may become effective.

A Participant’s Deferral Contributions for any taxable year of such Participant shall not exceed $10,000 (or such higher amount as may be prescribed by the Secretary of the Treasury, or his delegate, for such taxable year pursuant to Code section 402(g)(1)).  For purposes of this Section and except as otherwise provided in this Section, a Participant’s Deferral Contributions shall include (i) any employer contribution made under any qualified cash or deferred arrangement as defined in Code section 401(k) to the extent not includable in gross income for the taxable year under Code section 402(a)(8) (determined without regard to Code section 402(g)), (ii) any employer contribution to the extent not includable in gross income for the taxable year under Code section 402(h)(1)(B) (determined without regard to Code section 402(g)) and (iii) any employer contribution to purchase an annuity contract under Code section 403(b) under a salary reduction agreement within the meaning of Code section 3121(a)(5)(D).

If a Participant’s Deferral Contributions exceed the amount described in subsection ‎3.2.1 (hereinafter called the “excess deferrals”) during a taxable year of the Participant, such excess deferrals (adjusted for Trust Fund earnings and losses in the manner described in subsection 4.4.3) shall be distributed to the Participant by April 15 following the close of the taxable year in which such excess deferrals occurred if, by March 1 following the close of such taxable year, the Participant notifies the Administrator of any excess deferral amount allocated to the Participant’s Deferral Contribution under this Plan.

To ensure that excess deferrals will not be made to the Plan for any taxable year for any Participant, the Administrator will monitor (or cause to be monitored) the amount of Deferral Contributions being made to the Plan for each Participant during each taxable year and may take action to prevent Deferral Contributions made for any Participant under the Plan for any taxable year from exceeding the maximum amount under this Section.  This action is in addition to, and not in lieu of, any other actions that may be taken hereunder or that may be permitted by applicable law or regulation in order to ensure that the limitations described in this Section are met.

If a Participant receives a distribution of excess deferrals pursuant to subsection 3.2.2, Matching Contributions, if any, made with respect to such  distributed Deferral Contributions (adjusted for Trust Fund earnings and losses as set forth in subsection ‎4.4.3) shall be forfeited and credited against the Employer’s obligation to make Matching Contributions under Section 3.4.

Upon enrollment, a Participant will be entitled to contribute to the Trust Fund an amount between 1% and 20% of his Compensation (in 1% increments) for each pay period as an After Tax Contribution which is non-deductible.  Deferral Contributions and After Tax Contributions are limited to 20% of a Participant’s Compensation.

The percentage of Compensation designated by the Participant as his After Tax Contribution rate will continue in effect (unless restricted hereunder) until he elects to change such percentage.  A Participant may elect to begin After Tax Contributions or change his After Tax Contribution rate effective as of any payroll period.  Such change shall be effected in accordance with procedures established by the Administrator.  A Participant may suspend his After Tax Contributions to the Plan at any time.  The suspension will be effective as soon as administratively feasible.  A Participant who suspends his After Tax Contributions can once again make After Tax Contributions as of any payroll period.

Each Employer will contribute to the Trust on account of each Plan Year a Matching Contribution equal to 100% of each Participant’s Employee Contributions for a pay period, in an amount up to the first 2% of the Participant’s Compensation with respect to such pay period.  For the Employee Contributions equal to the next 4% of the Participant’s Compensation for a pay period (i.e., above 2% to 6%), the Employer will make a Matching Contribution of 50%.

Each Employer will make its Matching Contributions to the Trust in one or more installments not later than the due date (including extensions) for the filing of the Employer’s income tax return for the year for which the contributions are made.

Rollover Contributions shall be permitted, subject to the provisions of this Section.  The Administrator may direct the Trustee to accept, in accordance with procedures approved by the Administrator, all or part of an Eligible Rollover Distribution for the benefit of a Participant from (i) the Participant, (ii) another Qualified Plan or (iii) an individual retirement account or annuity, as defined in section 7701(a)(37) of the Code, if such individual retirement account or annuity meets the requirements of paragraphs (A) and (B) of Code section 408(d)(3).

Deferral Contributions will be subject to the average percentage test set forth in Section ‎10.6.

After Tax Contributions and Matching Contributions will be subject to the average contribution percentage test set forth in Section ‎10.7.

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

 

The Administrator will establish a Deferral Contribution Account, After Tax Contribution Account, Matching Contribution Account, and, if applicable, a Rollover Account for each Participant and may establish one or more subaccounts of a Participant’s Accounts, if the Administrator determines that subaccounts are necessary or desirable in administering the Plan.

Deferral Contributions made by an Employer on behalf of a Participant will be allocated to the Participant’s Deferral Contribution Account.

After Tax Contributions made by a Participant will be allocated to the Participant’s After Tax Contribution Account.

Matching Contributions made by an Employer on behalf of a Participant will be allocated to the Participant’s Matching Contribution Account.

Each Rollover Contribution made by a Participant shall be allocated to his Rollover Account.

Qualified Non-Elective Contributions and Qualified Matching Contributions will be allocated to the Deferral Contribution Accounts of the Participants designated as the group of Participants to whom the contribution is to be allocated based on the ratio that each designated Participant’s Compensation for the Plan Year bears to the Compensation of all designated Participants for the Plan Year; provided, however, that subaccounts will be maintained for the purpose of excluding Qualified Matching Contributions from the “Actual Deferral Percentage” test pursuant to Section ‎10.6 below and for the purpose of excluding Qualified Matching Contributions and Qualified Non-Elective Contributions from the amount available for hardship withdrawals under Section 7.8 below.

Article ‎10 sets forth certain rules under Code sections 401(k), 401(m) and 415 that limit the amount of Employee Contributions and Employer contributions that may be allocated to a Participant’s Accounts for a Plan Year.

The Administrator, through its accounting records, will segregate each Account and subaccount and will maintain a separate and distinct record of all income and losses of the Trust Fund attributable to each Account or subaccount.  Income or loss of the Trust Fund will include any unrealized increase or decrease in the fair market value of the assets of the Trust Fund.

(a)              With respect to Investment Funds which have a readily determinable fair market value as of the end of each business day during the calendar year, the share of net income or net loss of the Trust Fund to be credited to, or deducted from, each Account will be the allocable portion of the net income or net loss of the Trust Fund attributable to each Account determined by the Administrator as of each Valuation Date, based upon the ratio that each Account balance as of the previous Valuation Date bears to all Account balances after adjustment for withdrawals, distributions and other additions or subtractions.  The share of net income or net loss to be credited to, or deducted from, any subaccount will be an allocable portion of the net income or net loss credited to or deducted from the Account under which the subaccount is established.

(b)              With respect to Investment Funds which do not have a readily determinable fair market value as of the end of each business day during the calendar year, the Trustee shall determine a method of allocation which shall take into account the period over which a readily determinable fair market value is not available (using time weighted averages) and which the Trustee deems appropriate, and the Trustee’s determination of such method of allocation will be conclusive on all interested persons for all purposes of the Plan.

(c)              To the extent that Investment Funds are mutual funds or similar investments, share-based accounting may be used in keeping records for the Plan, and the provisions of this subsection shall be applied and interpreted accordingly.

The earnings and losses of the Trust Fund for the Plan Year allocable to Deferral Contributions or After Tax Contributions to be returned to a Participant or Matching Contributions to be forfeited or returned to a Participant pursuant to subsection 3.2.2, 10.6.5, or 10.7.4 will be determined by multiplying the Trust Fund earnings or losses for the Plan Year allocable to the Participant’s Deferral Contribution Account, After Tax Contribution Account or

 

The Trust Fund will be divided into such Investment Funds (including an ESOP Company Stock Fund, a Non-ESOP Company Stock Fund, and Self-Directed Brokerage Funds, as identified below) as shall be designated by the Administrator from time to time and a Participant’s Account will be invested therein as provided in this Article.  A Participant’s Account will be invested and reinvested in such funds in accordance with the terms of the Trust Agreement and the provisions of this Article.  Notwithstanding any provision of the Plan to the contrary, the Administrator in its sole discretion may direct the Trustee to keep such portion of each Investment Fund in cash or cash equivalents as the Administrator may from time to time deem to be advisable to maintain sufficient liquidity to meet the obligations of the Plan or for other reasons.

There is no limitation under the Plan on the amount of qualifying employer securities within the meaning of ERISA section 407(d)(5) (including Company Stock) that can be held in the Trust Fund under the Plan, provided, however, that the Plan will not hold employer securities acquired with an exempt loan as defined in section 4975(d)(3) of the Code and Treasury Regulations thereunder.

Shares of Company Stock held or distributed by the Trustee may include such legend restrictions on transferability as the Company may reasonably require in order to assure compliance with applicable Federal and state securities laws.  Except as otherwise provided in this Section, no shares of Company Stock held or distributed by the Trustee may be subject to a put, call or other option, or buy-sell or similar arrangement.  The ESOP Company Stock Fund and the Non-ESOP Company Stock Fund will be maintained on a share-based accounting method and Participants will be credited with fractional shares, as appropriate. Dividends on Company Stock will be immediately reinvested in Company Stock, such that there generally will be no cash component of the ESOP Company Stock Fund, unless dividends are paid to Participants, as provided below.

If so determined by the Administrator, any cash dividends payable on Company Stock allocated to the Accounts of Participants may be paid currently (or within (90) days after the end of the Plan Year in which the dividends are paid to the Trust) in cash to such Participants (or their beneficiaries) on a nondiscriminatory basis, or the Company may pay such dividends directly to the Participants (or their Beneficiaries).  Such distribution (if any) of cash dividends will be limited to Accounts of Participants who are no longer Employees of the Employer.  Any determination by the Administrator in accordance with this subsection 5.1.2 will be reflected in separate written procedures.  Notwithstanding any other provisions of the Plan, the Plan Administrator is authorized to direct the investment of dividends if they are accumulated with the intent to distribute them later in accordance with this subsection 5.1.2.  Earnings on such accumulated dividends will be allocated to the Participants’ Accounts when the dividends are distributed.

Effective January 1, 2001, an additional Investment Fund invested primarily in shares of Company Stock shall be established and maintained, to be known as the Non-ESOP Company Stock Fund.  All contributions (including, without limitation, Deferral Contributions, After-Tax Contributions and Matching Contributions) which are credited to a Participant’s Account on or after January 1, 2001 and which are designated by the Participant to be invested in the Company Stock Fund shall be instead invested initially in the Non-ESOP Company Stock Fund.  Once each calendar quarter, as soon as administratively feasible after the date designated by the Administrator, all amounts held in the Non-ESOP Company Stock Fund on behalf of a Participant shall be automatically transferred to the Company Stock Fund.  Notwithstanding the foregoing, a Participant may at any time there are amounts credited to his or her Non-ESOP Company Stock Fund direct a transfer of investment from the Non-ESOP Company Stock Fund into any other Investment Fund under the Plan, including the Company Stock Fund.  Furthermore, a Participant may at any time there are amounts credited to his or her Company Stock Fund direct a transfer of investment into any other Investment Fund (other than the Non-ESOP Company Stock Fund) in accordance with procedures established  by the Administrator.   The Administrator may establish procedures for automatically transferring accounts from the Non-ESOP Company Stock Fund to the Company Stock Fund.  The Company Stock Fund may be also referred to as the “ESOP Company Stock Fund.”

The Administrator may (but is not required to) establish Self-Directed Brokerage Funds as additional Investment Funds for individual Participants, and may adopt rules and procedures for Self-Directed Brokerage Funds that are different from the rules and procedures that apply to other Investment Funds. If the Administrator establishes such Self-Directed Brokerage Funds, the Participant for whom a Self-Directed Brokerage Fund is established shall direct the Trustee to invest the assets of the Self-Directed Brokerage Fund in investments that the Participant chooses, subject to limitations imposed by the Administrator’s rules and procedures.  In no event, however, shall the Participant be allowed to direct the investment of such assets into any work of art, rug or antique, metal or gem, stamp or coin, alcoholic beverage or other similar tangible personal property if the Secretary of the Treasury shall have prohibited investment in such property.

In the event of distributions to a Participant from the Plan that are required by law or the terms of the Plan, including without limitation, distributions necessary to effect compliance with nondiscrimination testing, allocation limits and minimum required distributions, such distributions will be made first from Investment Funds other than the Participant’s Self-Directed Brokerage Fund.  If the assets in such Investment Funds are insufficient, the Administrator will direct the Trustee to effect a sale of securities in the Self-Directed Brokerage Fund and an investment exchange to the Plan’s other investment options to provide sufficient funds for the distribution.

Each Participant will, by direction to the Administrator, direct that all Deferral Contributions, After Tax Contributions, Matching Contributions and Rollover Contributions made by or for him be invested in one or more of the Investment Funds (but not to a Self-Directed Brokerage Fund) in percentages which are multiples of 1%.  If a Self-Directed Brokerage Fund has been established for a Participant, the Participant may direct the Administrator to have funds transferred from other Investment Funds into the Self-Directed Brokerage Fund, subject to the rules and procedures established by the Administrator.  An investment option selected by a Participant will remain in effect unless and until an investment change is made by him and becomes effective pursuant to Section ‎5.3.  In the absence of an effective investment direction, such contributions made by or for a Participant will be invested in the Investment Fund that maximizes the goals of liquidity and preservation of principal, as determined by the Administrator.

A Participant may elect and change investment options in accordance with procedures established by the Administrator, which may, without limitation, provide for various notice periods, various methods (including telephonic or electronic, as permitted by applicable law) of making investment elections and changes and various times at which investment elections or changes may become effective.

The Administrator shall give appropriate and timely directions to the Trustee in order to permit the Trustee to give effect to the investment choice and investment change elections made under this Article and to provide funds for distributions pursuant to Article ‎7.

The fair market value of the total net assets comprising the Trust Fund and of each Investment Fund will be determined by the Trustee as of the close of business on each Valuation Date.  Each such valuation will be made on the basis of the market value (as determined by the Trustee) of the Trust assets, except that property which the Trustee determines does not have a readily determinable market value will be valued at fair market value as determined by the Trustee in such manner as it deems appropriate, and the Trustee’s determination of such value will be conclusive on all interested persons for all purposes of the Plan.  In determining such value, the Trustee shall deduct all permissible expenses for which the Trustee has not yet obtained reimbursement from the Employer or the Trust Fund .

The Employers, the Administrator and the Trustee do not guarantee the Participants or their Beneficiaries against loss or depreciation or fluctuation of the value of the assets of the Trust Fund or any Investment Fund.

The Administrator may impose such investment and other restrictions under the Plan as the Administrator, in its sole discretion, deems necessary or appropriate to ensure compliance with the Securities Exchange Act of 1934, as amended (“Act”), or any other applicable law.  Although Participants affected generally will include only those Participants subject to the reporting requirements of the Act, other participants may be affected in the discretion of the Administrator.  No transfers will be permitted under the Plan that would result in a violation of the Company’s insider trading policy.

6.           VESTING

 

6.1.           Fully Vested Interests

Participants shall be fully vested in their Account.  Balances will be 100% vested and nonforfeitable at all times.

 

Except as set forth in Sections ‎7.8, ‎7.9 or 7.10, and subject to the provisions and restrictions in Article 12, a Participant’s interest in his Deferral Contribution Account, After Tax Contribution Account, Matching Contribution Account and Rollover Account may be distributed only after the Participant’s Disability, termination of employment with all members of the Controlled Group or death.  Upon a Participant’s Disability, he will be entitled to a distribution in the same form and at the same time as if he had terminated employment.

Distributions will be made in the form provided in this and the following Sections of this Article.  A Participant or Beneficiary eligible to receive a distribution under the Plan shall request such distribution in accordance with procedures (including telephonic or electronic, as permitted by law) established by the Administrator, including furnishing such information as the Administrator may reasonably require.  Notwithstanding any other provision of this Article, but subject to the requirements of Section 12.2, if the value of a Participant’s vested interest in his Accounts does not exceed $5,000, determined according to Section ‎7.7 below, distribution to such Participant or his Beneficiary will be made in the form of a single lump sum payment of the full value of the Accounts (or so much thereof to which a Beneficiary is entitled) as soon as practicable after the Participant’s Disability, death or termination of employment with the Controlled Group.

The Participant (or his Beneficiary) may elect to receive any distribution of all or a portion of his Accounts in the form of whole shares of Company Stock (with the value of any fractional share paid in cash) by directing the investment of all or a portion of his Accounts in the Company Stock Fund prior to any distribution.  Distributions from the Company Stock Fund will be made in kind unless otherwise elected; provided, however, (i) that fractional shares of Company Stock will in all cases be distributed in cash and (ii) that partial withdrawals may not be made through a combination of stock and cash distributions.  Shares of Company Stock distributed by the Trustee shall be readily tradable on an established securities market.

If a Participant’s employment with the Controlled Group is terminated for any reason other than death, he shall receive his Account balance in the form of a single lump sum, unless he elects (and is eligible) to make periodic partial withdrawals in accordance with the provisions of this Article 7.

Upon the death of a Participant, if his Beneficiary is not his surviving Spouse, then his entire Account balance shall be paid to his Beneficiary within five years after the Participant’s death, and after completion of procedures established by the Administrator.

Upon the death of a Participant, if his Beneficiary is his surviving Spouse, then the Beneficiary shall have the option of commencing distributions as soon as practicable after completion of procedures established by the Administrator, or delaying distributions, subject to the limitations in Article 12.

Any distribution to a Participant or Beneficiary effected pursuant to this Article shall be made as soon as administratively feasible after an event of distribution described in Section ‎7.1 above, as he or his Beneficiary directs, subject to the rules set forth below and in Article 12.

If a Participant’s Account balance exceeds $5,000 after the Participant’s service with the Controlled Group terminates or the Participant becomes Disabled, distribution of his vested Account balance will not be made or commenced (subject to Section ‎12.4) unless he elects to receive such distribution.  Subject to Section 12.2, a Participant can request a distribution at any time after his termination of employment with the Controlled Group or Disability, and such distribution will be made as soon as administratively feasible after such request is received by the Administrator, subject to such further notices and elections which may be required under the terms of the Plan.  If a Participant’s Account balance is $5,000 or less, it will be distributed to him in a lump sum, as soon as administratively feasible after the applicable event.

Distribution of a Participant’s Account balance to the Participant’s Beneficiary will be made or will commence as soon as administratively feasible following notification to the Administrator of the Partic