Exhibit (10)(b)(iv)
Fourth Amendment
to the
McDonald's Profit Sharing Program
The McDonald's Profit Sharing Program, as amended and restated effective
November 1, 1998 (the "Program"), and amended thereafter effective June 1, 2000,
January 1, 2001 and March 1, 2001 is hereby further amended, effective November
1, 1998 as follows:
I.
Section 1.14(c) is hereby amended by deleting the phrase "effective before
January 1, 1988" and inserting in its place the phrase "effective January 1,
1998".
II.
The last paragraph of Section 4.1(c) is hereby amended to read as follows:
A Participant's Employer Matching Contributions, LESOP Employer
Matching Allocations, LESOP Employer Matching Contributions, Special
Section 401(k) Contributions or Participant Elected Contributions
which are counted for purposes of the Required ADP Test pursuant to
Section 5.2(e) shall not be counted for purposes of calculating such
Participant's Average Contribution Percentage. In addition, the
Special Section 401(k) Employer Contributions and any other qualified
matching contributions and/or qualified nonelective contributions (as
defined in Treas. Reg. Section 1.401(k)-1(g)(13)) used to satisfy the
Required ACP Test in Section 4.1(d) for any Plan Year may not be used
to satisfy the Required ACP Test for any other Plan Year. The Special
Section 401(k) Employer Contributions and any other qualified matching
contributions and/or qualified nonelective contributions (as defined
in Treas. Reg. Section 1.401(k)-1(g)(13)) used to satisfy the Required
ACP Test for any Plan Year must be contributed to the Trust no later
than the last of the Plan Year following the Plan Year for which such
contributions are so used.
III.
Section 4.1(d) is hereby amended to read as follows:
(d) Required Actual Contribution Percentage Test and Adjustment.
The Average ACP for the group of Highly Compensated Employees for a
Plan Year beginning on or after January 1, 1997 shall bear a
relationship to the Average ACP for all Non-highly Compensated
Employees for such Plan Year which meets at least one of the following
tests ("Required ACP Test"):
(1) The Average ACP for the Plan Year for the group of
Active Participants who were Non-highly Compensated Employees in
that year multiplied by 1.25 is greater than or equal to the
Average ACP for the Plan Year for the Active Participants who
were Highly Compensated Employees; or
(2) The excess of the Average ACP for the Plan Year for the
group of Highly Compensated Employees who are Active Participants
over the Average ACP for the Plan Year for Non-highly Compensated
Employees who were Active Participants is not more than 2
percentage points, and the Average ACP for the Plan Year for the
group of Highly Compensated Employees who are Active Participants
is not more than the Average ACP for the Plan Year of all
Non-highly Compensated Employees who are Active Participants
multiplied by 2.
If the Required ACP Test for a Plan Year is not met and, if the
Company does not elect to make Special Section 401(k) Employer
Contributions or to count Participant Elected Contributions for
purposes of the Required ACP test with respect to the Plan Year
sufficient to result in the Required ACP test being passed, then the
Committee shall reduce Employer Matching Contributions and Forfeitures
(which for this purpose shall include any Participant Elected
Contributions counted in the Required ACP Test) or the LESOP Employer
Matching Allocations and LESOP Employer Matching Contributions that
Active Participants who are Highly Compensated Employees for the Plan
Year (or a portion of such Active Participants) may defer in the
following steps:
Step 1. The Committee shall first determine the dollar amount of
the reductions which would have to be made to the Employer Matching
Contributions and Forfeitures allocated therewith or LESOP Employer
Matching Allocations and LESOP Employer Matching Contributions of
Highly Compensated Employees who are Active Participants for the Plan
Year in order that the Average ACP of the Highly Compensated Employees
would not exceed both the amounts permitted in Sections 4.1(d)(1) and
(d)(2). Such amount shall be calculated by first determining
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the dollar amount by which the Employer Matching Contributions and any
Forfeitures allocated therewith or LESOP Employer Matching Allocations
and LESOP Employer Matching Contributions and any Forfeitures
allocated therewith of the Highly Compensated Employees who have the
highest Actual Contribution Percentage would have to be reduced until
the first to occur of: (i) such Highly Compensated Employees' Actual
Contribution Percentage, after the reductions made on account of any
reductions made under Section 5.2, would become tied with the Actual
Contribution Percentage of one or more other Highly Compensated
Employees or (ii) the Average ACP of all of the Highly Compensated
Employees, as recalculated after the reductions made under this Step
1, no longer would exceed the amounts permitted in both Sections
4.1(d)(1) and (d)(2). Then, unless the Average ACP of the Highly
Compensated Employees, as recalculated after the reductions made under
this Step 1, would no longer exceed the amounts permitted in both
Sections 4.1(d)(1) and (d)(2) if the total amount of such reductions
were made, the reduction process shall be repeated by determining the
dollar amount of reductions which would have to be made to the
Employer Matching Contributions and Forfeitures allocated therewith or
LESOP Employer Matching Allocations and LESOP Employer Matching
Contributions and any Forfeitures allocated therewith of the group of
Active Participants who are Highly Compensated Employees who after all
prior reductions made in this Step 1 would have the highest Actual
Contribution Percentage until the first to occur of: (iii) the Actual
Contribution Percentage, including the prior reductions made in this
Step 1, of each person in such group becomes tied with that of one or
more other Active Participants who are Highly Compensated Employees or
(iv) the Average ACP of all of the Active Participants who are Highly
Compensated Employees, after the prior reductions were made, no longer
would exceed both the amounts permitted in Sections 4.1(d)(1) and
(d)(2). This process is repeated until the Average ACP of all of the
Active Participants who are Highly Compensated Employees, after all
reductions, would no longer exceed the amounts described in both
Sections 4.1(d)(1) and (d)(2).
Step 2. Next, the Committee shall determine the total dollar
amount of reductions to the Employer Matching Contributions and
Forfeitures or LESOP Employer Matching Allocations and LESOP Employer
Matching Contributions calculated under Step 1 ("Total Excess
Contributions").
Step 3. Finally, the Committee shall reduce the Employer Matching
Contributions and Forfeitures or LESOP Employer Matching Allocations
and LESOP Employer Matching
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Contributions of the Active Participants who are Highly Compensated
Employees with the highest total dollar amount of such contributions
by the lesser of the amount which either: (i) causes such Highly
Compensated Employees' Employer Matching Contributions and Forfeitures
or LESOP Employer Matching Allocations and LESOP Employer Matching
Contributions to equal the total dollar amount of the Employer
Matching Contributions and Forfeitures or LESOP Employer Matching
Allocations and LESOP Employer Matching Contributions of the Highly
Compensated Employees with the next highest dollar amount of Employer
Matching Allocations and LESOP Employer Matching Contributions and
Forfeitures or LESOP Employer Matching Allocations and LESOP Employer
Matching Contributions or (ii) reduces the total of the Highly
Compensated Employee's Employer Matching Contributions or LESOP
Employer Matching Allocations and LESOP Employer Matching
Contributions (and any Forfeitures allocated therewith) by the Total
Excess Contributions. Then, unless the total amount of reductions made
to Highly Compensated Employees' Employer Matching Contributions or
LESOP Employer Matching Allocations and LESOP Employer Matching
Contributions (and any forfeitures allocated therewith) under this
Step 3 equals the amount of Total Excess Contributions, the reduction
process shall be repeated by reducing the Employer Matching
Contributions or LESOP Employer Matching Allocations and LESOP
Employer Matching Contributions (and any Forfeitures allocated
therewith) of the group of Highly Compensated Employees with the
highest dollar amount of Employer Matching Contributions or LESOP
Employer Matching Allocations and LESOP Employer Matching
Contributions, after the prior reductions made in this Step 3, by the
lesser of the amount which either: (iii) causes such Highly
Compensated Employees' Employer Matching Contributions or LESOP
Employer Matching Allocations and LESOP Employer Matching
Contributions (and any Forfeitures allocated with such contributions)
made in this Step 3 to equal the dollar amount of the Employer
Matching Contributions or LESOP Employer Matching Allocations and
LESOP Employer Matching Contributions (and any Forfeitures allocated
with such contributions) of other Highly Compensated Employees with
the next highest dollar amount of Employer Matching Contributions or
LESOP Employer Matching Allocations and LESOP Employer Matching
Contributions (and any Forfeitures allocated with such contributions)
or (iv) causes total reductions to equal the Total Excess
Contributions. This process is repeated with each successive group of
Highly Compensated Employees with the highest dollar amount, after the
prior reductions of the Employer Matching Contributions or LESOP
Employer Matching Allocations and LESOP Employer
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Matching Contributions (and any Forfeitures allocated with such
contributions) made under this Step 3 until the total reductions equal
the Total Excess Contributions.
The Committee shall reduce and distribute Employer Matching
Contributions or LESOP Employer Matching Allocations and LESOP
Employer Matching Contributions (and any Forfeitures allocated with
such contributions) equal to the Total Excess Contributions for the
Plan Year and any income, gains or losses attributable thereto, as
determined in accordance with Section 5.3, to Highly Compensated
Employees as determined in Step 3 no later than the last day of the
Plan Year following the Plan Year with respect to which such reduced
Employer Matching Contributions, LESOP Employer Matching Allocations
and LESOP Employer Matching Allocations and LESOP Employer Matching
Contributions (and any forfeitures allocated with such contributions)
were made.
IV.
Section 4.1 is hereby amended to add a new subsection (e) to the end
thereof to read as follows:
(e) Aggregation. The Actual Contribution Percentage for any
Highly Compensated Employee who is an Active Participant for the Plan
Year and is also eligible to have employee nondeductible contributions
or to have matching contributions (within the meaning of Section
401(m)(4)(A) of the Code) or qualified nonelective contributions
(within the meaning of Treas. Reg. Section 1.401(k)-1(g)(13))
allocated under one or more Related Plans subject to Code Section
401(m) (other than those that may not be permissively aggregated with
the Plan) shall be determined as if the employee nondeductible
contributions, matching contributions and qualified nonelective
contributions made under the Related Plans for such Plan Year had been
made under this Plan. If a Highly Compensated Participant participates
in two or more Related Plans subject to Code Section 401(m) that have
different plan years, all such Related Plans ending with or within the
same calendar year shall be treated as a single arrangement.
In the event this Plan satisfies the requirements of Code
Sections 401(m), 401(a)(4) or 410(b) (other than Code Section
410(b)(2)(A)(ii)) only if aggregated with one or more Related Plans,
or if one or more Related Plans satisfy the requirements of
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such Sections of the Code only if aggregated with this Plan, then
Section 4.1 shall be applied by determining the actual contribution
percentages of Participants as if this Plan and all such Related Plans
were a single plan; provided, however, that the Plan and one or more
Related Plans may be aggregated in order to satisfy the
non-discrimination rules of Section 401(m) of the Code only if the
Plan and such Related Plans have the same plan year and apply the same
testing method under Code Section 401(m)(2).
V.
The first sentence of Section 4.7 is hereby amended to read as follows:
The provisions of this Section 4.7 shall be effective on and after
December 12, 1994 and shall apply to each person reemployed by an
Employer after a period of uniformed service with reemployment rights
under Chapter 43 of Title 38, United States Code ("Qualified Uniformed
Service"); provided that any Employee seeking benefits under this
Section 4.7 shall notify the Benefits Accounting Department of his
eligibility and provide such information and proof, including but not
limited to his certificate of service, as shall reasonably be required
to confirm the Employee's eligibility.
VI.
Section 5.2(d) is hereby amended by adding a new paragraph following
Section 5.2(d)(3) to read as follows:
The Special Section 401(k) Employer Contributions and any other
qualified matching contributions and/or qualified nonelective
contributions (as defined in Treas. Reg. Section 1.401(k)-1(g)(13))
used to satisfy the Required ADP Test in Section 5.2(e) for any Plan
Year may not be used to satisfy the Required ADP Test for any other
Plan Year. The Special Section 401(k) Employer Contributions and any
other qualified matching contributions and/or qualified nonelective
contributions (as defined in Treas. Reg. Section 1.401(k)-1(g)(13))
used to satisfy the Required ADP Test for any Plan Year must be
contributed to the Trust no later than the last of the Plan Year
following the Plan Year for which such contributions are so used.
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VII.
Section 5.2(e) is hereby amended to read as follows:
(e) Required ADP Test. The Average ADP for Active
Participants who are Highly Compensated Employees for the Plan
Year bears a relationship to the Average ADP for Non-highly
Compensated Employees who were Active Participants for the Plan
Year for Plan Years beginning in 1997 and thereafter, which meets
either of the following tests ("Required ADP Test"):
(1) The Average ADP for the Plan Year for the group of
Active Participants who were Non-highly Compensated
Employees in that year multiplied by 1.25 is greater than or
equal to the Average ADP for the Plan Year for the Highly
Compensated Employees; or
(2) The excess of the Average ADP for the Plan Year for
the group of Highly Compensated Employees who are Active
Participants over the Average ADP for the Plan Year of all
Non-highly Compensated Employees who were Active
Participants is not more than 2 percentage points, and the
Average ADP for the Plan Year for the group of Highly
Compensated Employees who are Active Participants is not
more than the Average ADP for the Plan Year of all
Non-highly Compensated Employees who were Active
Participants multiplied by 2.
If the Required ADP Test for a Plan Year is not met and, if
the Company does not elect to make Special Section 401(k)
Employer Contributions or elect to count some or all of Employer
Matching Contributions, LESOP Employer Matching Allocations and
LESOP Employer Matching Contributions and Forfeitures allocated
with each respective type of contribution for purposes of the ADP
test with respect to the Plan Year sufficient to result in the
Required ADP Test being passed, then the Committee shall reduce
Participant Elected Contributions (which for this purpose shall
include any Employer Matching Contributions, LESOP Employer
Matching Allocations and LESOP Employer Matching Contributions
and Forfeitures allocated with each respective type of
contribution counted in the Required ADP Test) and any Employer
Matching Contributions, LESOP Employer Matching Allocations and
LESOP Employer Matching Contributions and Forfeitures allocated
with each respective type of contribution allocated with respect
to reduced Participant Elected Contributions that Active
Participants who are Highly Compensated Employees
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for the Plan Year (or a portion of such Active Participants) may
defer in the following steps:
Step 1. The Committee shall first determine the dollar
amount of the reductions which would have to be made to the
Participant Elected Contributions of Highly Compensated Employees
who are Active Participants for the Plan Year in order that the
Average ADP of the Highly Compensated Employees would not exceed
the amounts permitted in both Sections 5.2(e)(1) and (e)(2). Such
amount shall be calculated by first determining the dollar amount
by which the Participant Elected Contributions of Highly
Compensated Employees who have the highest Actual Deferral
Percentage would have to be reduced until the first to occur of:
(i) such Employees' Actual Deferral Percentage, after the
reductions under Section 5.2(b), would become tied with the
Actual Deferral Percentage of one or more other Highly
Compensated Employees or (ii) the Average ADP of all of the
Highly Compensated Employees, as recalculated after any prior
reductions under Section 5.2(b), no longer would exceed the
amounts permitted in both Sections 5.2(e)(1) and (e)(2). Then,
unless the recalculated Average ADP of the Highly Compensated
Employees no longer exceeds the amounts permitted in both
Sections 5.2(e)(1) and (e)(2), the reduction process shall be
repeated by determining the amount of reductions which would have
to be made to the Participant Elected Contributions of Highly
Compensated Employees who after all prior reductions would have
the highest Actual Deferral Percentage until the first to occur
of: (iii) the Actual Deferral Percentage, after any prior
reductions under Sections 5.2(b), 4.2(c) and this Step 1, of each
person in such group becomes tied with that of one or more other
Highly Compensated Employees or (iv) the Average ADP of all of
the Highly Compensated Employees, after the prior reductions, no
longer would exceed the amounts permitted in both Sections
5.2(e)(1) and (e)(2). This process is repeated until the Average
ADP of the Highly Compensated Employees, after all reductions,
would no longer exceed the amounts permitted in both Sections
5.2(e)(1) and (e)(2).
Step 2. Determine the total dollar amount of reductions to
the Participant Elected Contributions calculated under Step 1
("Total Excess Deferrals").
Step 3. The Participant Elected Contributions (which for
this purpose shall include any other contributions counted for
purposes of calculating the Required ADP Test) of the Highly
Compensated Employees with the highest dollar amount of
Participant Elected Contributions shall be reduced by the lesser
of
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the dollar amount which either (i) causes such Highly Compensated
Employees' Participant Elected Contributions to equal the dollar
amount of the Participant Elected Contributions of the Highly
Compensated Employees with the next highest dollar amount of
Participant Elected Contributions or (ii) reduces the total of
all Highly Compensated Employees' Participant Elected
Contributions by the Total Excess Contributions. Then, unless the
total amount of reductions made to Highly Compensated Employees'
Participant Elected Contributions under this Step 3 equals the
amount of the Total Excess Deferrals, the reduction process shall
be repeated by reducing the Participant Elected Contributions of
the group of Highly Compensated Employees with the highest dollar
amount of Participant Elected Contributions, after the prior
reductions made in this Step 3, by the lesser of the amount which
either: (iii) causes such Highly Compensated Employees'
Participant Elected Contributions after reductions made in
Section 5.2(b) and made in this Step 3 to equal the dollar amount
of the Participant Elected Contributions of the Highly
Compensated Employees with the next highest dollar amount of
Participant Elected Contributions or (iv) causes total reductions
to equal the Total Excess Contributions. This process is repeated
with each successive group of Highly Compensated Employees with
the highest dollar amount, after the prior reductions, of the
Participant Elected Contributions until the total reductions made
under this Step 3 equal the Total Excess Contributions.
The Committee shall reduce and distribute the Total Excess
Deferrals for the Plan Year and any income, gains or losses
attributable thereto, as determined in accordance with Section
5.3, to Highly Compensated Employees as determined under Step 3
no later than the last day of the Plan Year following the Plan
Year with respect to which such reduced Participant Elected
Contributions were made.
If Employer Matching Contributions, LESOP Employer Matching
Allocations or LESOP Employer Matching Contributions and any
Forfeitures allocated with each respective type of contribution
are included in calculating the Average ADP for a Plan Year, any
such contributions reduced hereunder shall be distributed to
Participants in the same manner as Participant Elected
Contributions are distributed (including any income allocable
thereto). If Employer Matching Contributions, LESOP Employer
Matching Allocations, LESOP Employer Matching Contributions and
any Forfeitures allocated with each respective type of
contribution are not included in calculating the Average ADP for
the Plan Year, any amount of Employer Matching
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Contributions, LESOP Employer Matching Allocations and LESOP
Employer Matching Contributions and any Forfeitures allocated
with each respective type of contribution therewith which are
reduced hereunder because such contributions were originally
allocated with respect to Participant Elected Matched
Contributions which are reduced to meet the above tests shall
become a Forfeiture and shall be allocated with other
Participants' Employer Matching Contribution, LESOP Employer
Matching Allocations and LESOP Employer Matching Contributions
and any Forfeitures allocated with each respective type of
contribution, in proportion to the Employer Matching
Contributions, LESOP Employer Matching Allocations and LESOP
Employer Matching Contributions and Forfeitures, respectively,
allocated therewith to such Accounts pursuant to Sections 7.2 or
7.3, as applicable.
VIII.
Section 5.2 is hereby amended to add a new subsection (f) to the end
thereof to read as follows:
(f) Aggregation. The Actual Deferral Percentage for any
Highly Compensated Employee who is an Active Participant for the
Plan Year and is also eligible to have elective deferrals (within
the meaning of Section 402(g) of the Code) or qualified matching
contributions or qualified nonelective contributions (within the
meaning of Treas. Reg. Section 1.401(k)-1(g)(13)) allocated under
one or more Related Plans subject to Code Section 401(k) (other
than those that may not be permissively aggregated with the Plan)
shall be determined as if the elective deferrals, qualified
matching contributions and qualified nonelective contributions
made under the Related Plans for such Plan Year had been made
under this Plan. If a Highly Compensated Participant participates
in two or more Related Plans subject to Code Section 401(k) that
have different plan years, all such Related Plans ending with or
within the same calendar year shall be treated as a single
arrangement.
In the event this Plan satisfies the requirements of Code
Sections 401(k), 401(a)(4) or 410(b) (other than Code Section
410(b)(2)(A)(ii)) only if aggregated with one or more Related
Plans, or if one or more Related Plans satisfy the requirements
of such Sections of the Code only if aggregated with this Plan,
then Section 5.2 shall be applied by determining the Actual
Deferral Percentages of Participants as if this Plan and all such
Related Plans were a single plan; provided, however, that the
Plan and one
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or more Related Plans may be aggregated in order to
satisfy the non-discrimination rules of Section 401(k)
of the Code only if the Plan and such Related Plans
have the same plan year and apply the same testing
method under Code Section 401(k)(3).
IX.
The portion of Section 9.1(d) that precedes Section 9.1(d)(1) is hereby
amended to read as follows:
If a Participant has an Annual Excess for a Plan Year
resulting from contributions based on estimated annual
compensation, allocation of forfeitures, or a
reasonable error in determining the amount of elective
deferrals under Code Section 402(g)(3), such excess
shall not be allocated to the Participant's Accounts,
but shall be eliminated as follows:
X.
Section 11.11 is hereby amended by adding the following new paragraph to
the end thereof read as follows:
Notwithstanding the foregoing provisions of this
Section 11.11, the Committee shall not direct the
immediate distribution of any portion of the
Participant's vested Net Balance Account prior to March
22, 1999 (or prior to October 17, 2000 if the
distribution is subject to the survivor annuity
requirements of Section 11.2(e)) without the
Participant's written consent (or without the written
consent of the Participant and the Participant's spouse
if the distribution is subject to the survivor annuity
requirements of Section 11.2(e)) if the Participant's
vested Net Balance Account exceeded $5,000 at the time
of any prior distribution.
XI.
Section 11.13(e) is hereby amended to add the following sentence to the end
thereof to read as follows:
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If a Participant elects to discontinue distributions
under this Section 11.13(e), a new annuity starting
date shall apply to the subsequent recommencement of
distributions.
XII.
Section 11.17(c)(1) is hereby amended to read as follows:
(1) "Eligible Rollover Distribution" means any
distribution of all or any portion of the balance to
the credit of the Distributee, except that an Eligible
Rollover Distribution does not include: any
distribution that is one of a series of substantially
equal periodic payments (not less frequently than
annually) made for the life (or life expectancy) of the
Distributee or the joint lives (or joint life
expectancies) of the Distributee and the Distributee's
designated Beneficiary, or for a specified period of
ten years or more; any distribution to the extent such
distribution is required under Section 11.13; the
portion of any distribution that is not includable in
gross income (determined without regard to the
exclusion for net unrealized appreciation with respect
to employer securities); and effective for
distributions made on or after January 1, 2000, any
hardship withdrawal described in Code Section
401(k)(2)(B)(i)(IV) which are attributable to elective
deferrals described in Treas. Reg. Section
1.401(k)-1(d)(2)(ii).
XIII.
Section 15.2(b)(1)(B) is hereby amended to delete the phrase "Section
401(a)(4) and Section 410(b)" and insert in its place the phrase "Section
401(a)(4) or Section 410(b)".
XIV.
Section 15.2(d)(2)(A) is hereby amended as follows:
(A) have annual Considered Compensation from the
Employer, Commonly Controlled Entity or member of an
Affiliated Service Group for such Plan Year greater
than the amount in effect under Section 415(c)(1)(A) of
the Internal Revenue Code for the calendar year in
which such Plan Year ends (the greater of $30,000 for
1996, adjusted in subsequent years as determined in
accordance with regulations prescribed by the
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Secretary of the Treasury or his delegate pursuant to
the provisions of Section 415(d) of the Internal
Revenue Code); and
XV.
Section 15.2(f) is hereby amended by adding a new sentence to the end
thereof to read as follows:
The accrued benefit of any Non-Key Employee who was a
Key Employee for any prior Plan Year shall be excluded
in computing the Present Value of Accrued Benefits.
XVI.
Except as herein amended, the Plan shall remain in full force and effect.
Executed in multiple originals this 12th day of June, 2002.
McDonald's Corporation
By: /s/ Stanley R. Stein
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Its: Executive Vice President
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