If the plan so provides in [Section 3.4(a)] or [Section 3.6] that the safe harbor requirements will be met, the provisions of this [Section 5.5(f)] shall apply for the plan year as provided in such Sections and any provisions relating to the ADP test described in [Section 5.5(b)] or the ACP test described in [Section 5.5(c)] shall not apply. To the extent that any other provision of the plan is inconsistent with the provisions of this [Section 5.5(f)], the provisions of this [Section 5.5(f)] shall govern when [Section 3.4(a)] or [Section 3.6] so provide. In accordance with Regulation [[sections 1.401(k)-1(e)(7) and 1.401(m)-1(c)(2)])])])]])])])], it is impermissible for the employer to use ADP and ACP testing for a plan year in which it is intended for the plan through its written terms to be a Code section 401(k) safe harbor plan and a Code section 401(m) safe harbor plan and the employer fails to satisfy the requirements of such safe harbors for the plan year.

Safe Harbor Contributions. Pursuant to [Section 11.3], certain employer contributions under the Plan have and will be made under the ADP Safe Harbor and ACP Safe Harbor (as defined in [Section 11.3]), and [Section 11.3] provides that the Plan is administered and interpreted in a manner consistent with the requirements of the ADP Safe Harbor and ACP Safe Harbor. Therefore, notwithstanding [Section 7.4(c)], contributions made to satisfy the ADP Safe Harbor and ACP Safe Harbor (and earnings thereon) shall not be distributed prior to the earlier of attainment of age 59 ½ or Termination of Employment.

Reliance as a Safe Harbor. For purposes of this Agreement, and without creating any presumption as to a lack of good faith if the following circumstances do not exist, the Indemnitee shall be deemed to have acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Company if the Indemnitee’s actions or omissions to act are taken in good faith reliance upon the records of the Company, including its financial statements, or upon information, opinions, reports or statements furnished to the Indemnitee by the officers or employees of the Company or any of its subsidiaries in the course of their duties, or by committees of the Board or by any other Person (including legal counsel, accountants and financial advisors) as to matters the Indemnitee reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company. In addition, the knowledge and/or actions, or failures to act, of any director, officer, agent or employee of the Company shall not be imputed to the Indemnitee for purposes of determining the right to indemnity hereunder.

Satisfying ADP safe harbor. The provisions of this Subsection apply for purposes of satisfying the "ADP test safe harbor." # The "ADP test safe harbor contribution" is the contribution, elected by the Employer in the 401(k) ADP Test Safe Harbor

Alternative Timing of Amendment and Notice for Safe Harbor Nonelective Contribution – If an employer using the current year method to satisfy the ADP test determines that it may choose during a plan year to satisfy the ADP test safe harbor requirements by providing a safe harbor nonelective contribution, the plan administrator shall provide a written notice to eligible employees before the beginning of the plan year that # the plan may be amended during the plan year to provide that the employer will make a safe harbor nonelective contribution of at least 3% to the plan for the plan year and # if the plan is so amended, a supplemental notice will be given to eligible employees 30 days prior to the last day of the plan year informing them of such an amendment. If the employer elects during the plan year to satisfy the ADP test safe harbor requirements by providing a safe harbor nonelective contribution, the amendment shall be adopted not later than 30 days before the last day of the plan year. The supplemental notice

The Plan satisfied the ADP Safe Harbor and/or ACP Safe Harbor requirements for the immediately preceding Plan Year; and

"Qualified Automatic Contribution Safe Harbor Account" means the account established hereunder to which Qualified Automatic Contribution "ADP test safe harbor contributions" are allocated. Amounts in the Qualified Automatic Contribution Safe Harbor Account are subject to the distribution restrictions of [Section 12.2(e)].

Safe harbor plan exception – The plan shall not treat a leased employee as an employee if the leasing organization covers the employee in a safe harbor plan and, prior to application of this safe harbor plan exception, 20% or less of the employer's nonhighly compensated employees are leased employees. A safe harbor plan is a money purchase pension plan providing immediate participation, full and immediate vesting, and a nonintegrated contribution formula equal to at least 10% of the employee's compensation without regard to employment by the leasing organization on a specified date. The safe harbor plan must determine the 10% contribution on the basis of compensation as defined in [Section 5.1(c)(2)].

the Safe Harbor Amount, or

If the Employer eliminates a matching contribution that is not an "ADP test safe harbor contribution," then the "ADP test safe harbor" provisions of this Section continue to apply (i.e., the provisions relating to the ADP test described in [Section 12.4] and in Code §401(k)(3) do not apply for such Plan Year to the group of Participants subject to the "ADP test safe harbor" provisions).