ES3, INC 401(K) AND PROFIT SHARING PLAN

Age/service weighted plan where allocations are based on age service or age and service; or new comparability or similar plan where allocations are based on participant classifications consisting entirely or predominantly of highly compensated employees or the plan provides an additional allocation rate on compensation above a specified threshold that exceeds the permitted disparity limits of Code section 401(l).

Profit-sharing plan.

This plan or any part of it is intended to meet the conditions of 29 CFR 2550.404c-1 (shifting investment responsibility to participants).

Participants have the opportunity to direct the investment of all of the assets allocated to their individual accounts regardless of whether 29 CFR 2550.404c-1 is intended to be met.

Employee contributions are allocated to separate accounts under the plan or employer contributions are based in whole or in part on employee deferrals or contributions to the plan. Not applicable to 401(k) plans with only QNECs and/or QMACs or to 403(b)(1) 403(b)(7) or 408 arrangements.

Participant-directed brokerage accounts provided as an investment option under the plan.

A master prototype or volume submitter plan that is the subject of a favorable opinion or advisory letter from the IRS.