EXHIBIT 10.1
QUANEX CORPORATION
EMPLOYEE SAVINGS PLAN
AMENDMENT AND RESTATEMENT
EFFECTIVE JANUARY 1, 1998
QUANEX CORPORATION EMPLOYEE SAVINGS PLAN
THIS AGREEMENT adopted by Quanex Corporation, a Delaware corporation (the
"Sponsor"),
WITNESSETH:
WHEREAS, effective April 1, 1986, the Sponsor established Quanex
Corporation Employee Savings Plan (the "Plan").
WHEREAS, the Plan is intended to be a profit sharing plan;
WHEREAS, the Sponsor desires to amend and restate the Plan;
NOW, THEREFORE, the Plan is hereby amended and restated in its entirety as
set forth below.
TABLE OF CONTENTS
SECTION
ARTICLE I - DEFINITIONS
Account.............................................................1.01
Active Service......................................................1.02
Affiliated Employer.................................................1.03
Annual Compensation.................................................1.04
Annuity Starting Date...............................................1.05
Beneficiary or Beneficiaries........................................1.06
Board...............................................................1.07
Code................................................................1.08
Committee...........................................................1.09
Considered Compensation.............................................1.10
Contribution........................................................1.11
Direct Rollover.....................................................1.12
Disability..........................................................1.13
Distributee.........................................................1.14
Eligible Retirement Plan............................................1.15
Eligible Rollover Distribution......................................1.16
Employee............................................................1.17
Employer or Employers...............................................1.18
Entry Date..........................................................1.19
ERISA...............................................................1.20
Five Percent Owner..................................................1.21
Highly Compensated Employee.........................................1.22
Hour of Service.....................................................1.23
Leased Employee.....................................................1.24
Maternity or Paternity Absence......................................1.25
Nonforfeitable Interest.............................................1.26
Non-Highly Compensated Employee.....................................1.27
Participant.........................................................1.28
Period of Service...................................................1.29
Period of Severance.................................................1.30
Plan................................................................1.31
Plan Year...........................................................1.32
Qualified Domestic Relations Order..................................1.33
Regulation..........................................................1.34
Required Beginning Date.............................................1.35
Retirement Age......................................................1.36
Rollover Contribution...............................................1.37
Separation From Service.............................................1.38
Severance From Service Date.........................................1.39
Servers Service.....................................................1.40
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Sponsor.............................................................1.41
Sponsor Stock.......................................................1.42
Spouse..............................................................1.43
Trust...............................................................1.44
Trustee.............................................................1.45
Valuation Date......................................................1.46
ARTICLE II - ELIGIBILITY
Eligibility Requirements............................................2.01
Early Participation for Rollover Purposes...........................2.02
Eligibility Upon Reemployment.......................................2.03
Cessation of Participation..........................................2.04
Recommencement of Participation.....................................2.05
ARTICLE III - CONTRIBUTIONS
Salary Deferral Contributions.......................................3.01
After-Tax Contributions.............................................3.02
Matching Contributions..............................................3.03
Supplemental Contributions..........................................3.04
Rollover Contributions and Plan-to-Plan Transfers...................3.05
QNECS - Extraordinary Employer Contributions........................3.06
Restoration Contributions...........................................3.07
Nondeductible Contributions Not Required............................3.08
Form of Payment of Contributions....................................3.09
Deadline for Payment of Employer Contributions......................3.10
Return of Contributions for Mistake,
Disqualification or Disallowance of Deduction...................3.11
ARTICLE IV - ALLOCATION AND VALUATION OF ACCOUNTS
Information Statements from Employer................................4.01
Allocation of Salary Deferral Contributions.........................4.02
Allocation of After-Tax Contributions...............................4.03
Allocation of Matching Contributions................................4.04
Allocation of Supplemental Contributions............................4.05
Allocation of QNECs.................................................4.06
Allocation of Forfeitures...........................................4.07
Valuation of Accounts...............................................4.08
No Rights Unless Otherwise Prescribed...............................4.09
ARTICLE V - BENEFITS
Retirement Benefit..................................................5.01
Death Benefit.......................................................5.02
Distribution Method.................................................5.03
Immediate Payment of Small Amount Upon Separation From Service......5.04
Direct Rollover Option..............................................5.05
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Distribution Upon Disposition of Assets or a Subsidiary.............5.06
Time of Distribution................................................5.07
Consent to Distribution.............................................5.08
Information Provided to Participants................................5.09
Designation of Beneficiary..........................................5.10
Distributions to Disabled Persons...................................5.11
Distributions Pursuant to Qualified Domestic Relations Orders.......5.12
Claims Procedure....................................................5.13
ARTICLE VI - IN-SERVICE DISTRIBUTIONS
In-Service Financial Hardship Distributions.........................6.01
In-Service Distributions of After-Tax Contributions,
Matching Contributions and Supplemental Contributions...........6.02
Method of Payment...................................................6.03
In-Service Distributions for Certain Former Participants............6.04
ARTICLE VII - VESTING
ARTICLE VIII - FORFEITURES AND RESTORATIONS
Forfeiture on Termination of Participation..........................8.01
Restoration of Forfeited Amounts....................................8.02
Forfeitures by Lost Participants or Beneficiaries...................8.03
ARTICLE IX - ACTIVE SERVICE
General.............................................................9.01
Disregard of Certain Service........................................9.02
Certain Brief Absences Counted as Active Service....................9.03
Service Credit Required by Law......................................9.04
Special Maternity or Paternity Absence Rules........................9.05
Employment Records Conclusive.......................................9.06
ARTICLE X -- INVESTMENT ELECTIONS
Investment Funds Established.......................................10.01
Election Procedures Established....................................10.02
ARTICLE XI - ADOPTION OF PLAN BY OTHER EMPLOYERS
Adoption Procedure.................................................11.01
No Joint Venture Implied...........................................11.02
All Trust Assets Available to Pay All Benefits.....................11.03
Qualification a Condition Precedent to Adoption and Continued
Participation..................................................11.04
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ARTICLE XII - AMENDMENT AND TERMINATION
Right to Amend and Limitations Thereon.............................12.01
Mandatory Amendments...............................................12.02
Withdrawal of Employer.............................................12.03
Termination of Plan................................................12.04
Partial or Complete Termination or Complete Discontinuance of
Contributions..................................................12.05
ARTICLE XIII- MISCELLANEOUS
Plan Not an Employment Contract....................................13.01
Benefits Provided Solely From Trust................................13.02
Assignments Prohibited.............................................13.03
Requirements Upon Merger or Consolidation of Plans.................13.04
Gender of Words Used...............................................13.05
Severability.......................................................13.06
Reemployed Veterans................................................13.07
Limitations on Legal Actions.......................................13.08
Governing Law......................................................13.09
APPENDIX A - LIMITATIONS ON CONTRIBUTIONS
APPENDIX B - TOP-HEAVY REQUIREMENTS
APPENDIX C - ADMINISTRATION OF THE PLAN
APPENDIX D - FUNDING
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ARTICLE I
DEFINITIONS
The words and phrases defined in this Article shall have the meaning set
out in the definition unless the context in which the word or phrase appears
reasonably requires a broader, narrower or different meaning.
1.01 "ACCOUNT" means all ledger accounts pertaining to a Participant which
are maintained by the Committee to reflect the Participant's interest in the
Trust. The Committee shall establish the following Accounts and any additional
Accounts that the Committee considers necessary to reflect the entire interest
of the Participant in the Trust. Each of the Accounts listed below and any
additional Accounts established by the Committee shall reflect the Contributions
or amounts transferred to the Trust, if any, and the appreciation or
depreciation of the assets in the Trust and the income earned or loss incurred
on the assets in the Trust attributable to the Contributions and/or other
amounts transferred to the Account.
(a) Salary Deferral Contribution Account - the Participant's
before-tax contributions, if any, made pursuant to Section 3.01.
(b) After-Tax Contribution Account - the Participant's after-tax
contributions, if any, made pursuant to Section 3.02.
(c) Matching Contribution Account - the Employer's matching
contributions, if any, made pursuant to Section 3.03.
(d) Supplemental Contribution Account - the Employer's
contributions, if any, made pursuant to Section 3.04.
(e) QNEC Account - the Employer's contributions, known as "qualified
nonelective employer contributions", made as a means of passing the actual
deferral percentage test of section 401(k) of the Code.
(f) Rollover Account - funds transferred from another qualified plan
or individual retirement account for the benefit of a Participant.
1.02 "ACTIVE SERVICE" means the Periods of Service which are counted for
eligibility and vesting purposes as calculated under Article IX.
1.03 "AFFILIATED EMPLOYER" means the Employer and any employer which is a
member of the same controlled group of corporations within the meaning of
section 414(b) of the Code or which is a trade or business (whether or not
incorporated) which is under common control (within the meaning of section
414(c) of the Code), which is a member of an affiliated service group (within
the meaning of section 414(m) of the Code) with the Employer, or which is
required to be aggregated with the Employer under section 414(o) of the Code.
For purposes of the limitation on allocations contained in Appendix A, the
definition of Affiliated Employer is modified by substituting the phrase "more
than 50 percent" in place of the phrase "at least 80 percent" each place the
latter phrase appears in section 1563(a)(1) of the Code.
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1.04 "ANNUAL COMPENSATION" means the Employee's wages from the Affiliated
Employers as defined in section 3401(a) of the Code for purposes of federal
income tax withholding at the source (but determined without regard to any rules
that limit the remuneration included in wages based on the nature or location of
the employment or the services performed) modified by including elective
contributions under a cafeteria plan described in section 125 of the Code and
elective contributions to any plan qualified under section 401(k), 408(k), or
403(b) of the Code. Except for purposes of Section A.4.1 of Appendix A of the
Plan, Annual Compensation in excess of $150,000.00 (as adjusted by the Secretary
of Treasury) shall be disregarded. If the Plan Year is ever less than 12 months,
the $150,000.00 limitation (as adjusted by the Secretary of Treasury) will be
prorated by multiplying the limitation by a fraction, the numerator of which is
the number of months in the Plan Year, and the denominator of which is 12.
1.05 "ANNUITY STARTING DATE" means the first day of the first period for
which an amount is payable as an annuity, or in the case of a benefit payable in
the form of a lump sum, the date on which the Trustee disburses the lump sum.
1.06 "BENEFICIARY" OR "BENEFICIARIES" means the person or persons, or the
trust or trusts created for the benefit of a natural person or persons or the
Participant's or former Participant's estate, designated by the Participant or
former Participant to receive the benefits payable under the Plan upon his
death.
1.07 "BOARD" or "BOARD OF DIRECTORS" means the board of directors of the
Sponsor.
1.08 "CODE" means the Internal Revenue Code of 1986, as amended from time
to time.
1.09 "COMMITTEE" means the committee appointed by the Sponsor to
administer the Plan.
1.10 "CONSIDERED COMPENSATION" means Annual Compensation paid to a
Participant by an Affiliated Employer for a Plan Year, REDUCED by all of the
following items (even if includable in gross income): all reimbursements or
other expense allowances (such as the payment of moving expenses or automobile
mileage reimbursements), cash and noncash fringe benefits (such as the use of an
automobile owned by the Employer, club memberships, tax gross-ups, attendance
and safety awards, fitness reimbursements, housing allowances, financial
planning benefits and Beneflex dollars), deferred compensation (such as amounts
realized upon the exercise of a nonqualified stock option or upon the premature
disposition of an incentive stock option, pay for accrued vacation upon
Separation From Service, amounts realized when restricted property or other
property held by a Participant either becomes freely transferable or no longer
subject to a substantial risk of forfeiture under section 83 of the Code), and
welfare benefits (such as severance pay). An Employee's Considered Compensation
paid to him during any period in which he is not eligible to participate in the
Plan under Article II shall be disregarded. Considered Compensation in excess of
$150,000.00 as adjusted by the Secretary of Treasury for increases in the cost
of living in accordance with section 401(a)(17)(B) of the Code shall be
disregarded. If the Plan Year is ever less than 12 months, the $150,000.00
limitation (as adjusted by the Secretary of Treasury) will be prorated by
multiplying the limitation by a
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fraction, the numerator of which is the number of months in the Plan Year, and
the denominator of which is 12.
1.11 "CONTRIBUTION" means the total amount of contributions made under the
terms of the Plan. Each specific type of Contribution shall be designated by the
type of contribution made as follows:
(a) Salary Deferral Contribution - a before-tax contribution made by
the Employer pursuant to the Employee's salary deferral agreement.
(b) After-Tax Contribution - an after-tax contribution made by the
Employee.
(c) Matching Contribution - a contribution made by the Employer
pursuant to Section 3.03.
(d) Supplemental Contribution - a contribution made by the Employer
pursuant to Section 3.04.
(e) QNEC - an extraordinary contribution, known as a "qualified
nonelective employer contribution", made by the Employer as a means of
passing the actual deferral percentage test of section 401(k) of the Code
or the actual contribution percentage test of section 401(m) of the Code.
(f) Rollover Contribution - a contribution made by a Participant
which consists of any part of an eligible rollover distribution (as
defined in section 402 of the Code) from a qualified employee trust
described in section 401(a) of the Code.
1.12 "DIRECT ROLLOVER" means a payment by the Plan to the Eligible
Retirement Plan specified by the Distributee.
1.13 "DISABILITY" means a mental or physical disability which, in the
opinion of a physician selected by the Committee, shall prevent the Participant
from earning a reasonable livelihood with any Affiliated Employer and which can
be expected to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months and which: (a) was not
contracted, suffered or incurred while the Participant was engaged in, or did
not result from having engaged in, a felonious criminal enterprise; (b) did not
result from alcoholism or addiction to narcotics; and (c) did not result from an
injury incurred while a member of the Armed Forces of the United States for
which the Participant receives a military pension.
1.14 "DISTRIBUTEE" means an Employee or former Employee. In addition, the
Employee's or former Employee's surviving Spouse and the Employee's or former
Employee's Spouse or former Spouse who is the alternate payee under a Qualified
Domestic Relations Order, are Distributees with regard to the interest of the
Spouse or former Spouse.
1.15 "ELIGIBLE RETIREMENT PLAN" means 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
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section 401(a) of the Code, that accepts the Distributee's Eligible Rollover
Distribution. However, in the case of an Eligible Rollover Distribution to the
surviving Spouse, an Eligible Retirement Plan is an individual retirement
account or individual retirement annuity.
1.16 "ELIGIBLE ROLLOVER DISTRIBUTION" as defined in section 402 of the
Code 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: (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 Distributee or the joint lives (or joint life expectancies)
of the Distributee and the Distributee's Beneficiary, or for a specified period
of ten years or more; (b) any distribution to the extent the distribution is
required under section 401(a)(9) of the Code; (c) 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 after December 31, 1998, (d) any
financial hardship distribution described in section 401(k)(2) of the Code from
a Participant's Salary Deferral Contribution Account or from the Participant's
QNEC Account (to the extent that QNECs were treated as Section 401(k)
Contributions under Appendix A).
1.17 "EMPLOYEE" means, except as otherwise specified in this Section, all
common law employees of an Affiliated Employer and all Leased Employees.
1.18 "EMPLOYER" OR "EMPLOYERS" means the Sponsor and any other business
organization that adopts the Plan.
1.19 "ENTRY DATE" means the first day of each calendar quarter, January 1,
April 1, July 1, and October 1.
1.20 "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
1.21 "FIVE PERCENT OWNER" means an Employee who is a five percent owner as
defined in section 416(i) of the Code.
1.22 "HIGHLY COMPENSATED EMPLOYEE" means an Employee or an Affiliated
Employer who, during the Plan Year or the preceding Plan Year, (a) was at any
time a Five Percent Owner at any time during the Plan Year or the preceding Plan
Year or (b) had Annual Compensation from the Affiliated Employers in excess of
$80,000.00 (as adjusted from time to time by the Secretary of the Treasury) for
the preceding Plan Year.
1.23 "HOUR OF SERVICE" means each hour that an Employee is paid or
entitled to payment by an Affiliated Employer for the performance of duties.
1.24 "LEASED EMPLOYEE" means any person who (a) is not a common law
employee of an Affiliated Employer, (b) pursuant to an agreement between an
Affiliated Employer and any other person, has performed services for an
Affiliated Employer (or for an Affiliated Employer and related persons
determined in accordance with section 414(n)(6) of the Code) on a substantially
full-time basis for a period of at least one year and (c) performs the services
under primary direction and control of the recipient.
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1.25 "MATERNITY OR PATERNITY ABSENCE" means a period in which an Employee
is absent from work (a) by reason of the pregnancy of the Employee, (b) by
reason of the birth of a child of the Employee, (c) by reason of the placement
of a child with the Employee in connection with the adoption of the child by the
Employee, or (d) for purposes of caring for such child for a period immediately
following such birth or placement for adoption.
1.26 "NONFORFEITABLE INTEREST" means a Participant's nonforfeitable
interest in amounts credited to his Account determined in accordance with
Article VII.
1.27 "NON-HIGHLY COMPENSATED EMPLOYEE" means an Employee who is not a
Highly Compensated Employee.
1.28 "PARTICIPANT" means an Employee who is eligible to participate in the
Plan under the provisions of Article II.
1.29 "PERIOD OF SERVICE" means a period of employment with an Affiliated
Employer which commences on the later of (1) April 1, 1986 or (2) the day on
which an Employee performs his initial Hour of Service or performs his initial
Hour of Service after he Xxxxxx Service, whichever is applicable, and ends on
the date the Employee subsequently Xxxxxx Service.
1.30 "PERIOD OF SEVERANCE" means the period of time commencing on the
Employee's Severance From Service Date and ending on the date the Employee
subsequently performs an Hour of Service.
1.31 "PLAN" means the Quanex Corporation Employee Savings Plan, as amended
from time to time.
1.32 "PLAN YEAR" means the calendar year.
1.33 "QUALIFIED DOMESTIC RELATIONS ORDER" means a qualified domestic
relations order as defined in section 414(p) of the Code.
1.34 "REGULATION" means the Department of Treasury regulation specified,
as it may be changed from time to time.
1.35 "REQUIRED BEGINNING DATE" means:
(a) effective January 1, 2001, in the case of an individual who is
not a Five Percent Owner in the Plan Year that ends in the calendar year
in which he attains age 70 1/2, the Required Beginning Date is April 1 of
tHe calendar year following the later of (1) the calendar year in which
the individual attains age 70 1/2, or (2) the calendar year in which tHe
individual incurs a Separation From Service;
(b) in the case of an individual who is a Five Percent Owner in the
Plan Year that ends in the calendar year in which he attains age 70 1/2,
tHe Required Beginning Date is April 1 of the calendar year following the
calendar year in which he attains age 70 1/2.;
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(c) notwithstanding subsection(a), in the case of an individual who
attained age 70 1/2 prior to January 1, 2001, the Required Beginning DaTe
is April 1 of the calendar year following the calendar year in which the
individual attained age 70 1/2.
1.36 "RETIREMENT AGE" means age 65.
1.37 "ROLLOVER CONTRIBUTION" means the amount contributed by a Participant
of the Plan which consists of any part of an Eligible Rollover Distribution from
a qualified employee trust described in section 401(a) of the Code.
1.38 "SEPARATION FROM SERVICE" means an individual's termination of
employment with an Affiliated Employer WITHOUT commencing or continuing
employment with (a) any other Affiliated Employer or (b) any other entity under
circumstances where, under Regulations and Internal Revenue Service rulings, the
individual is not deemed to have incurred a Separation From Service within the
meaning of Section 401(k)(2) of the Code.
1.39 "SEVERANCE FROM SERVICE DATE" means the earlier of the date of the
Employee's Separation From Service, or the first anniversary of the date on
which the Employee is absent from service (with or without pay) for any reason
other than his Separation From Service or a Maternity or Paternity Absence, such
as vacation, holiday, sickness, or leave of absence. The Severance From Service
Date of an Employee who is absent beyond the first anniversary of his first day
of absence by reason of a Maternity or Paternity Absence is the second
anniversary of the first day of the absence.
1.40 "XXXXXX SERVICE" means the occurrence of a Participant's Severance
From Service Date.
1.41 "SPONSOR" means Quanex Corporation, a Delaware corporation.
1.42 "SPONSOR STOCK" means the common stock of the Sponsor or such other
publicly-traded stock of an Affiliated Employer as meets the requirements of
section 407(d)(5) of ERISA with respect to the Plan.
1.43 "SPOUSE" means the person to whom the Participant or former
Participant is married under applicable local law. In addition, to the extent
provided in a Qualified Domestic Relations Order, a surviving former spouse of a
Participant or former Participant will be treated as the Spouse of the
Participant or former Participant, and to the same extent any current spouse of
the Participant or former Participant will not be treated as a Spouse of the
Participant or former Participant.
1.44 "TRUST" means the trust estate created to fund the Plan.
1.45 "TRUSTEE" means collectively one or more persons or corporations with
trust powers which have been appointed by the initial Sponsor and have accepted
the duties of Trustee and any successor appointed by the Sponsor.
1.46 "VALUATION DATE" means each business day of the Plan Year.
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ARTICLE II
ELIGIBILITY
2.01 ELIGIBILITY REQUIREMENTS. Each Employee who is employed by an
Employer shall be eligible to participate in the Plan beginning on the Entry
Date that occurs with or next follows the date on which the Employee completes
three months of Active Service. However, an Employee who is included in a unit
of Employees covered by a collective bargaining agreement between the Employees'
representative and the Employer shall be excluded, even if he has met the
requirements for eligibility, if there has been good faith bargaining between
the Employer and the Employees' representative pertaining to retirement benefits
and the agreement does not require the Employer to include such Employees in the
Plan. In addition, a Leased Employee shall not be eligible to participate in the
Plan unless the Plan's qualified status is dependent upon coverage of the Leased
Employee. An Employee who is compensated on an hourly rated basis for services
rendered at the Sponsor's MacSteel-Arkansas Division is not eligible to
participate in the Plan. An Employee who is employed by the Sponsor at one of
the Sponsor's Xxxxxxx divisions or the Sponsor's Fabricated Products division is
not eligible to participate in the Plan. An Employee who is a nonresident alien
(within the meaning of section 7701(b) of the Code) and receives no earned
income (within the meaning of section 911(d)(2) of the Code) from any Affiliated
Employer that constitutes income from sources within the United States (within
the meaning of section 861(a)(3) of the Code) is not eligible to participate in
the Plan. An Employee who is a nonresident alien (within the meaning of section
7701(b) of the Code) and who does receive earned income (within the meaning of
section 911(d)(2) of the Code) from any Affiliated Employer that constitutes
income from sources within the United States (within the meaning of section
861(a)(3) of the Code) all of which is exempt from United States income tax
under an applicable tax convention is not eligible to participate in the Plan.
During any period in which an individual is classified by an Employer as an
independent contractor with respect to such Employer, the individual is not
eligible to participate in the Plan (even if he is subsequently reclassified by
the Internal Revenue Service as a common law employee of the Employer and the
Employer acquiesces to the reclassification). Finally, an Employee who is
employed outside the United States is not eligible to participate in the Plan
unless the Committee elects to permit him to participate in the Plan.
2.02 EARLY PARTICIPATION FOR ROLLOVER PURPOSES. An Employee who satisfies
the eligibility requirements specified in Section 2.01 other than the service
requirement shall be eligible to make Rollover Contributions to the Plan on the
Entry Date next following (not coincident with) the date on which he completes
an Hour of Service.
2.03 ELIGIBILITY UPON REEMPLOYMENT. If an Employee incurs a Separation
From Service prior to the date he initially begins participating in the Plan, he
shall be eligible to begin participation in the Plan on the later of the date he
would have become a Participant if he did not incur a Separation From Service or
the date on which he performs an Hour of Service after he incurs a Separation
From Service. Subject to Section 2.04, once an Employee becomes a Participant,
his eligibility to participate in the Plan shall continue until he Xxxxxx
Service.
2.04 CESSATION OF PARTICIPATION. An individual who has become a
Participant will cease to be a Participant on the earliest of the date on which
he (a) Xxxxxx Service, (b) is
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transferred from the employ of an Employer to the employ of an Affiliated
Employer that has not adopted the Plan, (c) becomes included in a unit of
employees covered by a collective bargaining agreement that does not require
coverage of those employees under the Plan, (d) becomes a Leased Employee, or
(e) becomes included in another classification of Employees who, under the terms
of the Plan, are not eligible to participate. Under these circumstances, the
Participant's Account becomes frozen; he cannot contribute to the Plan or share
in the allocation of any Contributions for the frozen period. However, his
Accounts shall continue to share in any Plan income allocable to his Accounts
during the frozen period of time.
2.05 RECOMMENCEMENT OF PARTICIPATION. A former Participant will again
become a Participant on the day on which he again becomes included in a
classification of Employees that, under the terms of the Plan, is eligible to
participate.
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ARTICLE III
CONTRIBUTIONS
3.01 SALARY DEFERRAL CONTRIBUTIONS. Each Employer shall make a Salary
Deferral Contribution in an amount equal to the amount by which the Considered
Compensation of its Employees who are Participants was reduced on a pre-tax
basis pursuant to salary deferral agreements. Any such salary deferral agreement
shall be an agreement in a form satisfactory to the Committee to prospectively
receive Considered Compensation from the Employer in a reduced amount and to
have the Employer contribute an amount equal to the amount of the reduction to
the Trust on account of the Participant. Any such salary deferral agreement
shall be revocable in accordance with its terms, provided that no revocation
shall be retroactive or permit payment to the Participant of the amount required
to be contributed to the Trust. A Participant's right to benefits attributable
to Salary Deferral Contributions made to the Plan on his behalf shall be
nonforfeitable.
The maximum amount a Participant may elect to reduce his Considered
Compensation under his salary deferral agreement and have contributed to the
Plan on a pre-tax basis shall be determined by the Committee, in its sole
discretion from time to time. The election to have Salary Deferral Contributions
made, the ability to change the rate of Salary Deferral Contributions, the right
to suspend Salary Deferral Contributions, and the manner of commencing new
Salary Deferral Contributions shall be permitted under any uniform method
determined by the Committee from time to time.
3.02 AFTER-TAX CONTRIBUTIONS. To the extent permitted by the Committee,
each Participant may make voluntary after-tax contributions to the Plan through
payroll deductions or in a lump sum in cash. A Participant's right to benefits
attributable to After-Tax Contributions made to the Plan on his behalf shall be
nonforfeitable.
The maximum amount a Participant may elect to contribute to the Plan on an
after-tax basis shall be determined by the Committee from time to time. The
election to have After-Tax Contributions made, the ability to change the rate of
After-Tax Contributions, the right to suspend After-Tax Contributions, and the
manner of commencing new After-Tax Contributions shall be permitted under any
uniform method determined by the Committee from time to time.
3.03 MATCHING CONTRIBUTIONS. Each Employer will make a Matching
Contribution on behalf of each of its Employees who is a Participant in an
amount equal to 50 percent of the first five percent of such Participant's
Considered Compensation contributed to the Plan pursuant to such Participant's
Salary Deferral Contributions and After-Tax Contributions for the Plan Year.
3.04 SUPPLEMENTAL CONTRIBUTIONS. Each Employer may contribute for a Plan
Year a Supplemental Contribution to be allocated among Participants in such
amount, if any, as shall be determined by the Employer. The rate of the
Supplemental Contribution need not be uniform among all divisions of the
Employer.
3.05 ROLLOVER CONTRIBUTIONS AND PLAN-TO-PLAN TRANSFERS. The Committee may
permit Rollover Contributions by Participants and/or direct transfers to or from
another qualified
III-1
plan on behalf of Participants from time to time. If Rollover Contributions
and/or direct transfers to or from another qualified plan are permitted, the
opportunity to make those contributions and/or direct transfers must be made
available to Participants on a nondiscriminatory basis. For this purpose only,
all Employees who are included in a classification of Employees who are eligible
to participate in the Plan shall be considered to be Participants of the Plan
even though they may not have met the Active Service requirements for
eligibility. However, they shall not be entitled to elect to have Salary
Deferral Contributions made or to share in Employer Contributions or forfeitures
unless and until they have met the requirements for eligibility, contributions
and allocations. A Rollover Contribution shall not be accepted unless it is
directly rolled over to the Plan in a rollover described in section 401(a)(31)
of the Code. A Participant shall not be permitted to make a Rollover
Contribution if the property he intends to contribute is for any reason
unacceptable to the Trustee. A Participant's right to benefits attributable to
his Rollover Contributions made to the Plan shall be nonforfeitable.
3.06 QNECS - EXTRAORDINARY EMPLOYER CONTRIBUTIONS. Any Employer may make a
QNEC in such amount, if any, as shall be determined by it. A Participant's right
to benefits attributable to QNECs made to the Plan on his behalf shall be
nonforfeitable. In no event will QNECs be distributed before Salary Deferral
Contributions may be distributed from the Plan.
3.07 RESTORATION CONTRIBUTIONS. The Employer shall, for each Plan Year,
make a restoration contribution in an amount equal to the sum of (a) such
amount, if any, as shall be necessary to fully restore all Matching Contribution
Accounts and Supplemental Contribution Accounts required to be restored pursuant
to the provisions of Section 8.02 after the application of all forfeitures
available for such restoration; plus (b) an amount equal in value to the value
of forfeited benefits required to be restored under Section 8.03, after the
application of all forfeitures available for such restoration.
3.08 NONDEDUCTIBLE CONTRIBUTIONS NOT REQUIRED. Notwithstanding any other
provision of the Plan, no Employer shall be required to make any contribution
that would be a "nondeductible contribution" within the meaning of section 4972
of the Code.
3.09 FORM OF PAYMENT OF CONTRIBUTIONS. Contributions may be paid to the
Trustee either in cash or in qualifying employer securities (as such term is
defined in section 407(d) of ERISA) or any combination thereof, provided that
payment may not be made in any form constituting a prohibited transaction under
section 4975 of the Code or section 406 of ERISA.
3.10 DEADLINE FOR PAYMENT OF CONTRIBUTIONS. Salary Deferral Contributions
and After-Tax Contributions shall be paid to the Trustee in installments. The
installment for each payroll period shall be paid as soon as administratively
feasible. The Matching Contributions, Supplemental Contributions and QNECs for a
Plan Year shall be paid to the Trustee in one or more installments, as the
Employer may from time to time determine; provided, however, that such
contributions may not be paid later than the time prescribed by law (including
extensions thereof) for filing the Employer's income tax return for its taxable
year ending with or within such Plan Year.
3.11 RETURN OF CONTRIBUTIONS FOR MISTAKE, DISQUALIFICATION OR DISALLOWANCE
OF DEDUCTION. Subject to the limitations of section 415 of the Code, the assets
of the Trust shall not
III-2
revert to any Employer or be used for any purpose other than the exclusive
benefit of Participants, former Participants and their Beneficiaries and the
reasonable expenses of administering the Plan except:
(a) any Employer Contribution made because of a mistake of fact may
be repaid to the Employer within one year after the payment of the
Contribution; and
(b) all Employer Contributions are conditioned upon their
deductibility under section 404 of the Code; therefore, to the extent the
deduction is disallowed, the Contributions may be repaid to the Employer
within one year after the disallowance.
The Employer has the exclusive right to determine if a Contribution or any
part of it is to be repaid or is to remain as a part of the Trust except that
the amount to be repaid is limited, if the Contribution is made by mistake of
fact or if the deduction for the Contribution is disallowed, to the excess of
the amount contributed over the amount that would have been contributed had
there been no mistake or over the amount disallowed. Earnings which are
attributable to any excess contribution cannot be repaid. Losses attributable to
an excess contribution must reduce the amount that may be repaid. All repayments
of Contributions made due to a mistake of fact or with respect to which a
deduction is disallowed are limited so that the balance in a Participant's or
former Participant's Account cannot be reduced to less than the balance that
would have been in the Participant's or former Participant's Account had the
mistaken amount or the amount disallowed never been contributed.
III-3
ARTICLE IV
ALLOCATION AND VALUATION OF ACCOUNTS
4.01 INFORMATION STATEMENTS FROM EMPLOYER. Upon request by the Committee,
the Employer shall provide the Committee with a schedule setting forth the
amount of its Salary Deferral Contribution, Supplemental Contribution, QNEC, and
restoration contribution; the names of its Participants, the number of years of
Active Service of each of its Participants, the amount of Considered
Compensation and Annual Compensation paid to each Participant, and the amount of
Considered Compensation and Annual Compensation paid to all its Participants.
Such schedules shall be conclusive evidence of such facts.
4.02 ALLOCATION OF SALARY DEFERRAL CONTRIBUTIONS. The Committee or its
designee shall allocate the Salary Deferral Contribution among the Participants
by allocating to each Participant the amount by which his Considered
Compensation was reduced pursuant to a salary deferral agreement (as described
in Section 3.01) and shall credit each such Participant's share to his Salary
Deferral Contribution Account.
4.03 ALLOCATION OF AFTER-TAX CONTRIBUTIONS. The Committee or its designee
shall allocate After-Tax Contributions made by a Participant in the amount of
such After-Tax Contributions and shall credit such After-Tax Contributions to
the Participants After-Tax Contribution Account.
4.04 ALLOCATION OF MATCHING CONTRIBUTIONS. The Committee or its designee
shall separately allocate the Matching Contribution made by an Employer among
the Employer's Participants in the proportion which the matched Salary Deferral
Contributions and matched After-Tax Contributions of each such Participant bears
to the total matched Salary Deferral Contributions and matched After-Tax
Contributions of all such Participants. Each Participant's proportionate share
shall be credited to his Matching Contribution Account.
4.05 ALLOCATION OF SUPPLEMENTAL CONTRIBUTIONS. For each Plan Year, the
Committee or its designee shall allocate the Supplemental Contribution made by
an Employer among the Participants who are employed by the Employer during the
Plan Year, based upon each such Participant's Considered Compensation paid by
the Employer as compared to the Considered Compensation for all such
Participants employed by the Employer and eligible for the allocation.
4.06 ALLOCATION OF QNECS. The Committee or its designee shall separately
allocate the QNEC among the Non-Highly Compensated Employees who are
Participants based upon each such Participant's Considered Compensation as
compared to the Considered Compensation of all such Participants.
4.07 ALLOCATION OF FORFEITURES. At the time a forfeiture occurs pursuant
to Article VIII, the amount forfeited will first be used to reinstate any
Account required to be reinstated under Article VIII, and any remaining amount
will be applied to the payment of Matching Contributions or Supplemental
Contributions.
4.08 VALUATION OF ACCOUNTS. A Participant's or former Participant's
Accounts shall be valued by the Trustee at fair market value on each Valuation
Date. The earnings and losses
IV-1
attributable to any asset in the Trust will be allocated solely to the Account
of the Participant or former Participant on whose behalf the investment in the
asset was made. In determining the fair market value of the Participants' or
former Participant's Accounts, the Trustee shall utilize such sources of
information as it may deem reliable including, but not limited to, stock market
quotations, statistical evaluation services, newspapers of general circulation,
financial publications, advice from investment counselors or brokerage firms, or
any combination of sources which in the opinion of the Trustee will provide the
price such assets were last traded at on a registered stock exchange; provided,
however, that with respect to regulated investment company shares, the Trustee
shall rely exclusively on information provided to it by the investment adviser
to such funds.
4.09 NO RIGHTS UNLESS OTHERWISE PRESCRIBED. No allocations, adjustments,
credits, or transfers shall ever vest in any Participant or former Participant
any right, title, or interest in the Trust except at the times and upon the
terms and conditions set forth in the Plan.
IV-2
ARTICLE V
BENEFITS
5.01 RETIREMENT BENEFIT. Upon his Separation From Service, a Participant
or former Participant is entitled to receive his Nonforfeitable Interest in his
Account balances.
5.02 DEATH BENEFIT. If a Participant or former Participant dies, the death
benefit payable to his Beneficiary shall be the Participant's Nonforfeitable
Interest in 100 percent of the remaining amount of his Account balances.
5.03 DISTRIBUTION METHOD. Any distribution under the Plan shall be made in
the form of a cash lump sum.
5.04 IMMEDIATE PAYMENT OF SMALL AMOUNT UPON SEPARATION FROM SERVICE. Each
Participant or former Participant whose Nonforfeitable Interest in his Account
balance at the time of a distribution to him on account of his Separation From
Service is, in the aggregate, less than or equal to $5,000.00, shall be paid in
the form of an immediate single sum cash payment and/or as a Direct Rollover, as
elected by him under section 5.05. However, if a Distributee who is subject to
this Section 5.04 does not furnish instructions in accordance with Plan
procedures to directly roll over his Plan benefit within 45 days after he has
been given direct rollover forms, he will be deemed to have elected to receive
an immediate lump sum cash distribution of his entire Plan benefit. If a
Participant's or former Participant's Nonforfeitable Interest in his Account
balance payable upon his Separation From Service is zero (because he has no
Nonforfeitable Interest in his Account balance), he will be deemed to receive an
immediate distribution of his entire Nonforfeitable Interest in his Account
balance.
5.05 DIRECT ROLLOVER OPTION. To the extent required under Regulations, a
Distributee has the right to direct that any portion of his Eligible Rollover
Distribution will be directly paid to an Eligible Retirement Plan specified by
him that will accept the Eligible Rollover Distribution.
5.06 DISTRIBUTION UPON DISPOSITION OF ASSETS OR A SUBSIDIARY. A
Participant or former Participant who is employed by an Employer that is a
corporation is entitled to receive a lump sum cash distribution of his
Nonforfeitable Interest in his Account balance in the event of the sale or other
disposition by the Employer of at least 85 percent of all of the assets used by
the Employer in a trade or business of the Employer to an unrelated corporation
if (a) the Employer continues to maintain the Plan after the disposition and (b)
in connection with the disposition the Participant or former Participant is
transferred to the employ of the corporation acquiring the assets
A Participant or former Participant is entitled to receive a lump sum cash
distribution of his Nonforfeitable Interest in his Account balance in the event
of the sale or other disposition by the Sponsor of its interest in a subsidiary
(within the meaning of Section 409(d)(3) of the Code) to an unrelated entity or
individual if (a) the Sponsor continues to maintain the Plan after the
disposition and (b) in connection with the disposition the Participant continues
employment with the subsidiary.
V-1
The selling Employer is treated as continuing to maintain the Plan after
the disposition only if the purchaser does not maintain the Plan after the
disposition. A purchaser is considered to maintain the Plan if it adopts the
Plan, becomes an employer whose employees accrue benefits under the Plan, or if
the Plan is merged or consolidated with, or any assets or liabilities are
transferred from the Plan to, a plan maintained by the purchaser in a
transaction that is subject to Section 414(1)(1) of the Code. An unrelated
corporation, entity or individual is one that is not required to be aggregated
with the selling Employer under Section 414(b), (c), (m), or (o) of the Code
after the sale or other disposition.
If a Participant's Nonforfeitable Interest in his Account balance is
$5,000.00 or less on the date of the disposition, the Committee will direct the
Trustee to pay to the Participant, a lump sum cash distribution of his
Nonforfeitable Interest in his Account balance as soon as administratively
practicable following the disposition and any Internal Revenue Service approval
of the distribution that the Committee deems advisable to obtain.
If a Participant's Nonforfeitable Interest in his Account balance is more
than $5,000.00 on the date of the disposition, he may elect (1) to receive a
lump sum cash distribution of his Nonforfeitable Interest in his Account balance
as soon as administratively practicable following the disposition and receipt of
any Internal Revenue Service approval of the distribution that the Committee
deems advisable to obtain, or (2) he may elect to defer receipt of his
Nonforfeitable Interests in his Account balance until the first day of the month
coincident with or next following the date that he attains Retirement Age. In
the manner and at the time required under Regulations, the Committee will
provide the Participant with a notice of his right to defer receipt of his
Account balance described in Section 5.09.
However, no distribution shall be made to a Participant under this Section
5.06 after the end of the second calendar year following the calendar year in
which the disposition occurred. In addition, no distribution shall be made under
this Section unless it is a lump sum distribution within the meaning of section
402(e)(4)(D) of the Code, without regard to subclauses (I), (II), (III), and
(IV) of clause (i) thereof.
5.07 TIME OF DISTRIBUTION. Notwithstanding any other provision of the
Plan, any benefit payable under the Plan shall be distributed in compliance with
the following provisions:
(a) DISTRIBUTION DEADLINES FOR PARTICIPANTS OR FORMER PARTICIPANTS
WHO ARE 70 1/2 OR OLDER. If a Participant or former Participant attains 70
1/2, the Participant or former Participant must elect to receive the
distribution required under section 401(a)(9) of the Code in one lump sum
which must be paid by his Required Beginning Date.
(b) DISTRIBUTION DEADLINE FOR DEATH BENEFITS. If a Participant or
former Participant dies before the distribution of his Plan benefit has
commenced, his entire interest shall be distributed within five years
after his death.
(c) LIMITATIONS ON DEATH BENEFITS. Benefits payable under the Plan
shall not be provided in any form that would cause a Participant's death
benefit to be more than incidental. Any distribution required to satisfy
the incidental benefit requirement shall be considered a required
distribution for purposes of section 401(a)(9) of the Code.
V-2
(d) COMPLIANCE WITH SECTION 401(A)(9). All distributions under the
Plan will be made in accordance with the requirements of section 401(a)(9)
of the Code and all Regulations promulgated thereunder. The provisions of
the Plan reflecting section 401(a)(9) of the Code override any
distribution options in the Plan inconsistent with such Section.
(e) COMPLIANCE WITH SECTION 401(A)(14). Unless the Participant or
former Participant otherwise elects, the payment of benefits under the
Plan to the Participant or former Participant will begin not later than
the 60th day after the close of the Plan Year in which occurs the latest
of (a) the date on which the Participant or former Participant attains the
later of age 62 or Retirement Age, (b) the tenth anniversary of the year
in which the Participant or former Participant commenced participation in
the Plan, or (c) the Participant's or former Participant's Separation From
Service.
5.08 CONSENT TO DISTRIBUTION. Notwithstanding any other provision of the
Plan, no benefit shall be distributed or commence to be distributed to a
Participant or former Participant prior to his attainment of the later of age 62
or Retirement Age without his consent, unless the benefit is payable immediately
under Section 5.04. Any such consent shall be valid only if given not more than
90 days prior to the Participant's or former Participant's Annuity Starting Date
and after his receipt of the notice regarding benefits described in Section
5.09(a).
5.09 INFORMATION PROVIDED TO PARTICIPANTS. Information regarding the form
of benefits available under the Plan shall be provided to Participants or former
Participants in accordance with the following provisions:
(a) GENERAL INFORMATION. The Sponsor shall provide each Participant
or former Participant with a written general explanation of the
Participant's or former Participant's right, if any, to defer receipt of
the distribution.
(b) TIME FOR GIVING NOTICE. The written general explanation or
description regarding any optional forms of benefit available under the
Plan shall be provided to a Participant or former Participant no less than
30 days and no more than 90 days before his Annuity Starting Date unless
he legally waives this requirement.
5.10 DESIGNATION OF BENEFICIARY. Each Participant and former Participant
has the right to designate and to revoke the designation of his Beneficiary or
Beneficiaries. Each designation or revocation must be evidenced by a written
document in the form required by the Committee, signed by the Participant or
former Participant and filed with the Committee. If no designation is on file at
the time of a Participant's or former Participant's death or if the Committee
determines that the designation is ineffective, the designated Beneficiary shall
be the Participant's or former Participant's Spouse, if living, or if not, the
executor, administrator or other personal representative of the Participant's or
former Participant's estate. If a Participant or former Participant is
considered to be married under local law, his designation of any Beneficiary,
other than his Spouse, shall not be valid unless the Spouse acknowledges in
writing that the Spouse understands the effect of the Participant's or former
Participant's beneficiary designation and consents to it. The consent must be to
a specific Beneficiary. The written acknowledgement and consent must be filed
with the Committee, signed by the Spouse and at
V-3
least two witnesses, one of whom must be a member of the Committee or a notary
public. However, if the Spouse cannot be located or there exist other
circumstances as described in sections 401(a)(11) and 417(a)(2) of the Code, the
requirement of the Participant's or former Participant's Spouse's
acknowledgement and consent may be waived. If a Beneficiary other than the
Participant's or former Participant's Spouse is named, the designation shall
become invalid if the Participant or former Participant is later determined to
be married under local law, the Participant's or former Participant's missing
Spouse is located or the circumstances which resulted in the waiver of the
requirement of obtaining the consent of his Spouse no longer exist.
5.11 DISTRIBUTIONS TO DISABLED PERSONS. If the Committee determines that
any person to whom a payment is due is unable to care for his affairs because of
physical or mental disability, it shall have the authority to cause the payments
to be made to the Spouse, brother, sister or other person the Committee
determines to have incurred, or to be expected to incur, expenses for that
person unless a prior claim is made by a qualified guardian or other legal
representative. The Committee and the Trustee shall not be responsible to
oversee the application of those payments. Payments made pursuant to this power
shall be a complete discharge of all liability under the Plan and the Trust and
the obligations of the Employer, the Trustee, the Trust and the Committee.
5.12 DISTRIBUTIONS PURSUANT TO QUALIFIED DOMESTIC RELATIONS ORDERS. The
Committee will instruct the Trustee to pay benefits in accordance with the terms
of any order that has been determined, in accordance with Plan procedures, to be
a Qualified Domestic Relations Order. A Qualified Domestic Relations Order may
require the payment of an immediate cash lump sum to an alternate payee even if
the Participant or former Participant is not then entitled to receive an
immediate payment of Plan benefits.
5.13 CLAIMS PROCEDURE. When a benefit is due, the Participant, former
Participant or Beneficiary should submit his claim to the person or office
designated by the Committee to receive claims. Under normal circumstances, a
final decision shall be made as to a claim within 90 days after receipt of the
claim. If the Committee notifies the claimant in writing during the initial
90-day period, it may extend the period up to 180 days after the initial receipt
of the claim. The written notice must contain the circumstances necessitating
the extension and the anticipated date for the final decision. If a claim is
denied during the claims period, the Committee must notify the claimant in
writing. The denial must include the specific reasons for it, the Plan
provisions upon which the denial is based, and the claims review procedure. If
no action is taken during the claims period, the claim is treated as if it were
denied on the last day of the claims period.
If a Participant's, former Participant's or Beneficiary's claim is denied
and he wants a review, he must apply to the Committee in writing. That
application may include any comment or argument the claimant wants to make. The
claimant may either represent himself or appoint a representative, either of
whom has the right to inspect all documents pertaining to the claim and its
denial. The Committee may schedule any meeting with the claimant or his
representative that it finds necessary or appropriate to complete its review.
The request for review must be filed within 60 days after the denial. If
it is not, the denial becomes final. If a timely request is made, the Committee
must make its decision, under
V-4
normal circumstances, within 60 days of the receipt of the request for review.
However, if the Committee notifies the claimant prior to the expiration of the
initial review period, it may extend the period of review up to 120 days
following the initial receipt of the request for a review. All decisions of the
Committee must be in writing and must include the specific reasons for their
action and the Plan provisions on which their decision is based. If a decision
is not given to the claimant within the review period, the claim is treated as
if it were denied on the last day of the review period.
V-5
ARTICLE VI
IN-SERVICE DISTRIBUTIONS
6.01 IN-SERVICE FINANCIAL HARDSHIP DISTRIBUTIONS.
(a) GENERAL. Prior to his Separation From Service, a Participant is
entitled to receive a distribution from his Salary Deferral Contribution
Account (except for income that was not credited to his Salary Deferral
Account as of December 31, 1988), his Rollover Account, his After-Tax
Contribution Account, his Nonforfeitable Interest in his Matching
Contribution Account and his Nonforfeitable Interest in his Supplemental
Contribution Account in the event of an immediate and heavy financial need
incurred by the Participant and the Committee's determination that the
withdrawal is necessary to alleviate that hardship.
(b) PERMITTED REASONS FOR FINANCIAL HARDSHIP DISTRIBUTIONS. A
distribution shall be made on account of financial hardship only if the
distribution is for: (i) expenses for medical care described in section
213(d) of the Code previously incurred by the Participant, the
Participant's Spouse, or any dependents of the Participant (as defined in
section 152 of the Code) or necessary for these persons to obtain medical
care described in section 213(d) of the Code, (ii) costs directly related
to the purchase (excluding mortgage payments) of a principal residence for
the Participant, (iii) payment of tuition and related educational fees for
the next 12 months of post-secondary education for the Participant, his
Spouse, children, or dependents (as defined in section 152 of the Code),
(iv) payments necessary to prevent the eviction of the Participant from
his principal residence or foreclosure on the mortgage of the
Participant's principal residence, or (v) any other event added to this
list by the Commissioner of Internal Revenue.
(c) AMOUNT. A distribution to satisfy an immediate and heavy
financial need shall not be made in excess of the amount of the immediate
and heavy financial need of the Participant and the Participant must have
obtained all distributions, other than hardship distributions, and all
nontaxable (at the time of the loan) loans currently available under all
plans maintained by the Employer. The amount of a Participant's immediate
and heavy financial need includes any amounts necessary to pay any
federal, state or local income taxes or penalties reasonably anticipated
to result from the financial hardship distribution.
(d) SUSPENSION OF PARTICIPATION IN CERTAIN BENEFIT PROGRAMS. The
Participant's hardship distribution shall terminate his right to have the
Employer make any Salary Deferral Contributions on his behalf until the
next time Salary Deferral Contributions are permitted after the lapse of
12 months following the hardship distribution and his timely filing of a
written request to resume his Salary Deferral Contributions. In addition,
for 12 months after he receives a hardship distribution from the Plan, the
Participant is prohibited from making elective contributions and employee
contributions to or under all other qualified and nonqualified plans of
deferred compensation maintained by the Employer, including stock option
plans, stock purchase plans and Code section 401(k) cash or deferred
arrangements that are part of cafeteria
VI-1
plans described in section 125 of the Code. However, the Participant is
not prohibited from making contributions to a health or welfare benefit
plan, including one that is part of a cafeteria plan within the meaning of
section 125 of the Code.
(e) RESUMPTION OF SALARY DEFERRAL CONTRIBUTIONS. When the
Participant resumes Salary Deferral Contributions, he cannot have the
Employer make any Salary Deferral Contributions in excess of the limit in
section 402(g) of the Code for that taxable year reduced by the amount of
Salary Deferral Contributions made by the Employer on the Participant's
behalf during the taxable year of the Participant in which he received the
hardship distribution.
(f) ORDER OF DISTRIBUTIONS. Financial hardship distributions will be
made in the following order: First withdrawals will be made from the
Participant's After-Tax Contribution Account, then from his Rollover
Contribution Account, then from his Matching Contribution Account, then
from his Supplemental Contribution Account and finally, from his Salary
Deferral Contribution Account. A Participant shall not be entitled to
receive a financial hardship distribution of any amount credited to his
QNEC Account.
6.02 IN-SERVICE DISTRIBUTION OF AFTER-TAX CONTRIBUTIONS, MATCHING
CONTRIBUTIONS AND SUPPLEMENTAL CONTRIBUTIONS. Each Participant shall be entitled
to withdraw a portion or all of his After-Tax Contribution Account and his
Nonforfeitable Interest in his Matching Contribution Account and his
Supplemental Contribution Account. However, the minimum amount of the
distribution permitted under this Section 6.02 shall be the lesser of $1,000.00
or the total amount which could otherwise be distributed under this Section
6.02. Also, a Participant may make a withdrawal of a portion of his
Nonforfeitable Interest in his Matching Contribution Account and his
Supplemental Contribution Account only if the Participant has been a Participant
in this Plan for five or more years or the amounts withdrawn from the Matching
Contribution Account and his Supplement Contribution Account have been credited
to his Account for a minimum of two years. A Participant may not make another
distribution request under this Section 6.02 until such Participant has made
After-Tax Contributions and/or Salary Deferral Contributions for a period of
twelve months or more after receiving his most recent distribution pursuant to
this Section 6.02.
6.03 METHOD OF PAYMENT. Any distribution made pursuant to this Article VI
will be paid in the form of a cash lump sum.
6.04 IN-SERVICE DISTRIBUTIONS FOR CERTAIN FORMER PARTICIPANTS. Former
Participants who are described in Section 5.06 shall be entitled to receive
distributions pursuant to this Article VI under the same terms and conditions as
are applicable to Participants.
VI-2
ARTICLE VII
VESTING
A Participant or former Participant has a fully nonforfeitable interest in
his entire Account balance when he (a) incurs a Disability on or prior to the
date of his Separation From Service, (b) attains his Normal Retirement Age on or
prior to the date of his Separation From Service, or (c) incurs a Separation
From Service due to death. A Participant or former Participant shall at all
times have a fully nonforfeitable interest in amounts credited to his Salary
Deferral Contribution Account, QNEC Account, Rollover Account and After-Tax
Contribution Account. A Participant or former Participant shall have a
nonforfeitable interest in the following percentage of amounts credited to his
Matching Contribution Account and his Supplemental Contribution Account:
Years of Active Service Completed by the
Participant or Former Participant Vested Percentage
---------------------------------------- -----------------
Less than one................................................. 0
One but less than two......................................... 20
Two but less than three....................................... 40
Three but less than four...................................... 60
Four but less than five....................................... 80
Five or more.................................................. 100
Subject to the possible application of Section B.2.3 of Appendix B or
Section 11.05, except as specified above, a Participant or former Participant
has no vested interest in his Account balance and shall not be entitled to any
benefits under the Plan upon or following his Separation From Service.
VII-1
ARTICLE VIII
FORFEITURES AND RESTORATIONS
8.01 FORFEITURE ON TERMINATION OF PARTICIPATION.
(a) If as a result of his Separation From Service a Participant or
former Participant receives (or is deemed to receive under Section 5.04),
a distribution of his entire Nonforfeitable Interest in the Plan not later
than the end of the second Plan Year following the Plan Year in which his
Separation From Service occurs, the remaining nonvested portion of his
Account balance will be immediately forfeited upon the distribution.
(b) If, not later than the end of the second Plan Year following the
Plan Year in which his Separation From Service occurs, a Participant or
former Participant receives a distribution of less than the full amount of
his entire Nonforfeitable Interest in his Account balance as a result of
his Separation From Service pursuant to his voluntary election to receive
such distribution, the remaining nonvested portion of his Account balance
will be forfeited immediately upon the distribution.
(c) If a Participant or former Participant neither receives nor is
deemed to receive a distribution as a result of his Separation From
Service, the nonvested portion of his Account balance will be permanently
forfeited (with no right of reinstatement under Section 8.02) on the LATER
of the date of his Separation From Service or the date on which he has
incurred a Period of Severance of five consecutive years.
8.02 RESTORATION OF FORFEITED AMOUNTS. If a Participant or former
Participant who forfeited any portion of his Account balance pursuant to the
provisions of Section 8.01 subsequently performs an Hour of Service, then the
following provisions shall apply:
(a) REPAYMENT REQUIREMENT. The Participant's Account balance
(unadjusted for gains or losses subsequent to the forfeiture) shall be
restored if he repays to the Trustee the full amount of any distribution
with respect to which the forfeiture arose prior to the EARLIER of (1) the
date on which he incurs a Period of Severance of five years commencing
after his distribution, or (2) the fifth anniversary of the first date on
which the Participant subsequently performs his first Hour of Service
after his Separation From Service. A Participant who is deemed to have
received a distribution under Section 5.04 (because he had no
Nonforfeitable Interest in his Account balance) will be deemed to have
repaid his Account balance upon his reemployment if he is reemployed
before the earlier of the dates specified in clauses (1) and (2) in the
preceding sentence.
(b) AMOUNT RESTORED. The amount to be restored under the preceding
provisions of this Section 8.02 shall be the dollar value of the Account
balance, both the amount distributed and the amount forfeited. The
Participant's Account balance shall be restored as soon as
administratively practicable after the later of the date the Participant
first performs an Hour of Service after his Separation From Service or the
date on which any required repayment is completed.
VIII-1
(c) NO OTHER BASIS FOR RESTORATION. Except as otherwise provided
above, a Participant's Account balance shall not be restored after it has
been forfeited pursuant to Section 8.01.
8.03 FORFEITURES BY LOST PARTICIPANTS OR BENEFICIARIES. If a person who is
entitled to a distribution cannot be located during a reasonable search after
the Committee has initially attempted making payment, his Account balance shall
be forfeited. However, if at any time prior to the termination of the Plan and
the complete distribution of the Trust assets, the missing former Participant or
Beneficiary files a claim with the Committee for the forfeited Account balance,
that Account balance shall be reinstated (without adjustment for trust income or
losses during the period of forfeiture) effective as of the date of the receipt
of the claim.
VIII-2
ARTICLE IX
ACTIVE SERVICE
9.01 GENERAL. For purposes of determining an Employee's eligibility to
participate in the Plan and his nonforfeitable interest in his Account balance,
the Employee shall receive credit for Active Service commencing on the later of
(1) April 1, 1986 or (2) the date he first performs an Hour of Service and
ending on his Severance From Service Date. If an Employee Xxxxxx Service, he
shall recommence earning Active Service when he again performs an Hour of
Service. If an Employee performs an Hour of Service within twelve months after
his Severance From Service Date, the intervening Period of Severance shall be
counted as Active Service. When determining an Employee's Active Service, all
Periods of Service, whether or not completed consecutively, shall be aggregated
on a per-day basis. In aggregating Active Service, thirty days shall be counted
as one month and 365 days shall be counted as one year of Active Service.
9.02 DISREGARD OF CERTAIN SERVICE. If an Employee incurs a Separation From
Service at a time when he does not have a Nonforfeitable Interest in a portion
of his Matching Contribution Account balance or his Supplemental Contribution
Account balance and his Period of Severance continues for a continuous period of
five years or more, the Period of Service completed by the Employee before the
Period of Severance shall not be taken into account as Active Service, if his
Period of Severance equals or exceeds his Period of Service, whether or not
consecutive, completed before the Period of Severance.
9.03 CERTAIN BRIEF ABSENCES COUNTED AS ACTIVE SERVICE. If an Employee
performs an Hour of Service within 365 days after he Xxxxxx Service, the
intervening Period of Severance shall be counted as a Period of Service.
9.04 SERVICE CREDIT REQUIRED BY LAW. An Employee will be granted credit
for Active Service for time he is not actively performing services for an
Affiliated Employer the extent required under federal law.
9.05 SPECIAL MATERNITY OR PATERNITY ABSENCE RULES. Except as specified
below, the period of time between (a) the first anniversary of the first day of
a Maternity or Paternity Absence of an Employee and (b) the second anniversary
of the first day of the absence shall not be counted as a Period of Severance or
as Active Service. However, if the Employee returns to active employment with an
Affiliated Employer prior to the expiration of twelve months following the
earlier of (1) the date of his Separation From Service or (2) the second
anniversary of the first day of his Maternity or Paternity Absence, he shall be
granted Active Service for the entire period of his Maternity or Paternity
Absence.
9.06 EMPLOYMENT RECORDS CONCLUSIVE. The employment records of the Employer
shall be conclusive for all determinations of Active Service.
IX-1
ARTICLE X
INVESTMENT ELECTIONS
10.01 INVESTMENT FUNDS ESTABLISHED. It is contemplated that the assets of
the Plan shall be invested in such categories of assets as may be determined
from time to time by the Committee and announced and made available on an equal
basis to all Participants and former Participants. In accordance with procedures
established by the Committee, each Participant and former Participant may
designate the percentage of his Account to be invested in each investment fund
available under the Plan. Up to one hundred percent of the Trust assets may be
invested in Sponsor Stock.
10.02 ELECTION PROCEDURES ESTABLISHED. The Committee shall, from time to
time, establish rules to be applied in a nondiscriminatory manner as to all
matters relating to the administration of the investment of funds including, but
not limited to, the following:
(a) the percentage of a Participant's or former Participant's
Account as it exists, from time to time, that may be transferred from one
fund to another and the limitations based on amounts, percentages, time,
or frequency, if any, on such transfers;
(b) the percentage of a Participant's future contributions, when
allocated to his Account, that may be invested in any one or more funds
and the limitations based upon amounts, percentages, time, or frequency,
if any, on such investments in various funds;
(c) the procedures for making investment elections and changing
existing investment elections;
(d) the period of notice required for making investment elections
and changing existing investment elections;
(e) the handling of income and change of value in funds when funds
are in the process of being transferred between investment funds and to
investment funds; and
(f) all other matters necessary to permit the orderly operation of
investment funds within the Plan.
When the Committee changes any previous applicable rule, it shall state the
effective time of the change and the procedures for complying with any such
change. Any change shall remain effective until such date as stated in the
change, or if none is stated, then until revoked or changed in a like manner.
X-1
ARTICLE XI
ADOPTION OF PLAN BY OTHER EMPLOYERS
11.01 ADOPTION PROCEDURE. Any business organization may, with the approval
of the Board, adopt the Plan by:
(a) a certified resolution or consent of the board of directors of
the adopting Employer or an executed adoption instrument (approved by the
board of directors of the adopting Employer) agreeing to be bound as an
Employer by all the terms, conditions and limitations of the Plan except
those, if any, specifically described in the adoption instrument; and
(b) providing all information required by the Committee and the
Trustee.
11.02 NO JOINT VENTURE IMPLIED. The document which evidences the adoption
of the Plan by an Employer shall become a part of the Plan. However, neither the
adoption of the Plan and the Trust by an Employer nor any act performed by it in
relation to the Plan and the Trust shall ever create a joint venture or
partnership relation between it and any other Employer.
11.03 ALL TRUST ASSETS AVAILABLE TO PAY ALL BENEFITS. The Accounts of
Participants employed by the Employers that adopt the Plan shall be commingled
for investment purposes. All assets in the Trust shall be available to pay
benefits to all Participants employed by any Employer.
11.04 QUALIFICATION A CONDITION PRECEDENT TO ADOPTION AND CONTINUED
PARTICIPATION. The adoption of the Plan and the Trust by a business organization
is contingent upon and subject to the express condition precedent that the
initial adoption meets all statutory and regulatory requirements for
qualification of the Plan and the exemption of the Trust that are applicable to
it and that the Plan and Trust continue in operation to maintain their qualified
and exempt status. In the event the adoption fails to initially qualify, the
adoption shall fail retroactively for failure to meet the condition precedent
and the portion of the Trust assets applicable to the adoption shall be
immediately returned to the adopting business organization and the adoption
shall be void ab initio. In the event the adoption as to a given business
organization later becomes disqualified and loses its exemption for any reason,
the adoption shall fail retroactively for failure to meet the condition
precedent and the portion of the Trust assets allocable to the adoption by that
business organization shall be immediately spun off, retroactively as of the
last date for which the Plan qualified, to a separate trust for its sole benefit
and an identical but separate Plan shall be created, retroactively effective as
of the last date the Plan as adopted by that business organization qualified,
for the benefit of the Participants covered by that adoption.
XI-1
ARTICLE XII
AMENDMENT AND TERMINATION
12.01 RIGHT TO AMEND AND LIMITATIONS THEREON. The Sponsor has the sole
right to amend the Plan. An amendment may be made by a certified resolution or
consent of the Board, or by an instrument in writing executed by the appropriate
officer of the Sponsor. The amendment must describe the nature of the amendment
and its effective date. No amendment shall:
(a) vest in an Employer any interest in the Trust;
(b) cause or permit the Trust assets to be diverted to any purpose
other than the exclusive benefit of the present, former or future
Participants and their Beneficiaries except under the circumstances
described in Section 3.11;
(c) decrease the Account of any Participant or former Participant,
or eliminate an optional form of payment in violation of section 411(d)(6)
of the Code; or
(d) change the vesting schedule to one which would result in a
Participant's or former Participant's Nonforfeitable Interest in his
Account balance (determined as of the later of the date of the adoption of
the amendment or of the effective date of the amendment) of any
Participant or former Participant being less than his Nonforfeitable
Interest computed under the Plan without regard to the amendment. If the
Plan's vesting schedule is amended or if the Plan is deemed amended by an
automatic change to or from a top-heavy vesting schedule, each Participant
or former Participant who has at least three years of Active Service as of
the date of the amendment or change shall have his nonforfeitable
percentage computed under the Plan without regard to the amendment or the
change if that results in a higher Nonforfeitable Interest in his Account
balance.
Each Employer shall be deemed to have adopted any amendment made by the
Sponsor unless the Employer notifies the Committee of its rejection in writing
within 30 days after it receives a copy of the amendment. A rejection shall
constitute a withdrawal from the Plan by that Employer unless the Sponsor
acquiesces in the rejection.
12.02 MANDATORY AMENDMENTS. The Contributions of each Employer to the Plan
are intended to be:
(a) deductible under the applicable provisions of the Code;
(b) except as otherwise prescribed by applicable law, exempt from
the Federal Social Security Act;
(c) except as otherwise prescribed by applicable law, exempt from
with- holding under the Code; and
(d) excludable from any Employee's regular rate of pay, as that term
is defined under the Fair Labor Standards Act of 1938, as amended.
XII-1
The Sponsor shall make any amendment necessary to carry out this
intention, and it may be made retroactively.
12.03 WITHDRAWAL OF EMPLOYER. An Employer may withdraw from the Plan and
the Trust if the Sponsor does not acquiesce in its rejection of an amendment or
by giving written notice of its intent to withdraw to the Committee. The
Committee shall then determine the portion of the Trust assets that is
attributable to the Participants employed by the withdrawing Employer and shall
notify the Trustee to segregate and transfer those assets to the successor
trustee when it receives a designation of the successor from the withdrawing
Employer.
A withdrawal shall not terminate the Plan and the Trust with respect to
the withdrawing Employer, if the Employer either appoints a successor trustee
and reaffirms the Plan and the Trust as its new and separate plan and trust
intended to qualify under section 401(a) of the Code, or establishes another
plan and trust intended to qualify under section 401(a) of the Code.
The determination of the Committee, in its sole discretion, of the portion
of the Trust assets that is attributable to the Participants employed by the
withdrawing Employer shall be final and binding upon all parties; and, the
Trustee's transfer of those assets to the designated successor Trustee shall
relieve the Trustee of any further obligation, liability or duty to the
withdrawing Employer, the Participants employed by that Employer and their
Beneficiaries, and the successor trustee.
12.04 TERMINATION OF PLAN. The Sponsor may terminate the Plan and the
Trust with respect to all Employers by executing and delivering to the Committee
and the Trustee, a notice of termination, specifying the date of termination.
12.05 PARTIAL OR COMPLETE TERMINATION OR COMPLETE DISCONTINUANCE OF
CONTRIBUTIONS. Without regard to any other provision of the Plan, if there is a
partial or total termination of the Plan or there is a complete discontinuance
of the Employer's Contributions, each of the affected Participants shall
immediately have a fully Nonforfeitable Interest in his Account as of the end of
the last Plan Year for which a substantial Employer Contribution was made and in
any amounts later allocated to his Account. If the Employer then resumes making
substantial Contributions at any time, the appropriate vesting schedule shall
again apply to all amounts allocated to each affected Participant's Account
beginning with the Plan Year for which they were resumed.
XII-2
ARTICLE XIII
MISCELLANEOUS
13.01 PLAN NOT AN EMPLOYMENT CONTRACT. The maintenance of the Plan and the
Trust is not a contract between any Employer and its Employees which gives any
Employee the right to be retained in its employment. Likewise, it is not
intended to interfere with the rights of any Employer to discharge any Employee
at any time or to interfere with the Employee's right to terminate his
employment at any time.
13.02 BENEFITS PROVIDED SOLELY FROM TRUST. All benefits payable under the
Plan shall be paid or provided for solely from the Trust. No Employer assumes
any liability or responsibility to pay any benefit provided by the Plan.
13.03 ASSIGNMENTS PROHIBITED. No principal or income payable or to become
payable from the Trust Fund shall be subject to anticipation or assignment by a
Participant, former Participant or Beneficiary to attachment by, interference
with, or control of any creditor of a Participant, former Participant or
Beneficiary; or to being taken or reached by any legal or equitable process in
satisfaction of any debt or liability of a Participant, former Participant, or
Beneficiary prior to its actual receipt by the Participant, former Participant
or Beneficiary. Any attempted conveyance, transfer, assignment, mortgage,
pledge, or encumbrance of any Trust assets, any part of it, or any interest in
it by a Participant, former Participant or Beneficiary prior to distribution
shall be void, whether that conveyance, transfer, assignment, mortgage, pledge,
or encumbrance is intended to take place or become effective before or after any
distribution of Trust assets or the termination of the Trust itself. The Trustee
shall never under any circumstances be required to recognize any conveyance,
transfer, assignment, mortgage, pledge or encumbrance by a Participant , former
Participant, or Beneficiary of the Trust, any part of it, or any interest in it,
or to pay any money or thing of value to any creditor or assignee of a
Participant, former Participant or Beneficiary for any cause whatsoever. These
prohibitions against the alienation of a Participant's Account shall not apply
to a Qualified Domestic Relations Order or to a voluntary revocable assignment
of benefits not in excess of ten percent of the amount of any payment from the
Plan if such assignment complies with Regulations issued under Section
401(a)(13) of the Code. Further, these prohibitions shall not apply to any
offset of a Participant's or former Participant's benefits provided under a Plan
against an amount that the Participant or former Participant is ordered or
required to pay to the Plan if--(a) the order or requirement to pay arises--(1)
under a judgment of conviction for a crime involving the Plan, (2) under a civil
judgment (including a consent order or decree) entered by a court in an action
brought in connection with an alleged violation of part 4 of subtitle B of title
I of ERISA, or (3) pursuant to a settlement agreement between the Secretary of
Labor and the Participant or former Participant in connection with a violation
(or alleged violation) of part 4 of subtitle B of ERISA by a fiduciary or any
other person, and (b) the judgment, order, decree, or settlement agreement
expressly provides for the offset of all or part of the amount ordered or
required to be paid to the Plan against the Participant's or former
Participant's benefits provided under the Plan.
13.04 REQUIREMENTS UPON MERGER OR CONSOLIDATION OF PLANS. The Plan shall
not merge or consolidate with or transfer any assets or liabilities to any other
plan unless each Participant would receive a benefit immediately after the
merger, consolidation, or transfer
XIII-1
which is equal to or greater than the benefit he would have been entitled to
receive immediately before the merger, consolidation, or transfer (if the Plan
had then terminated).
13.05 GENDER OF WORDS USED. If the context requires it, words of one
gender when used in the Plan shall include the other gender, and words used in
the singular or plural shall include the other.
13.06 SEVERABILITY. Each provision of this Agreement may be severed. If
any provision is determined to be invalid or unenforceable, that determination
shall not affect the validity or enforceability of any other provision.
13.07 REEMPLOYED VETERANS. The requirements of the Uniformed Services
Employment and Reemployment Rights Act of 1994 will be complied with in the
operation of the Plan in the manner permitted under section 414(u) of the Code.
13.08 LIMITATIONS ON LEGAL ACTIONS. No person may bring an action
pertaining to the Plan or Trust until he has exhausted his administrative claims
and appeal remedies identified in section 5.13. Further, no person may bring an
action pertaining to a claim for benefits under the Plan or the Trust following
90 days after the Committee's final denial of his claim for benefits.
13.09 GOVERNING LAW. The provisions of the Plan shall be construed,
administered, and governed under the laws of the United States unless the
specific matter in question is governed by state law in which event the laws of
the State of Texas shall apply.
XIII-2
IN WITNESS WHEREOF, Quanex Corporation has caused this Agreement to be
executed this 28th day of December, 2000, in multiple counterparts, each of
which shall be deemed to be an original, to be effective the 1st day of January,
1998, except for those provisions which have an earlier effective date provided
by law, or as otherwise provided under applicable provisions of the Plan.
QUANEX CORPORATION
By XXXX XXXXXXX
Title VICE PRESIDENT OF HUMAN RESOURCES
APPENDIX A
LIMITATIONS ON CONTRIBUTIONS AND ALLOCATIONS
PART A.1 DEFINITIONS
DEFINITIONS. As used herein the following words and phrases have the
meaning attributed to them below:
A.1.1 "ACTUAL CONTRIBUTION RATIO" shall mean the ratio of Section 401(m)
Contributions actually paid into the Trust on behalf of an Employee for a Plan
Year to the Employee's Annual Compensation for the same Plan Year. For this
purpose, Annual Compensation for any portion of the Plan Year in which the
Employee was not an eligible Employee (as defined in Section A.2.4) will not be
taken into account.
A.1.2 "ACTUAL DEFERRAL PERCENTAGE" means, for a specified group of
Employees for a Plan Year, the average of the ratios (calculated separately for
each Employee in the group) of the amount of Section 401(k) Contributions
actually paid into the Trust on behalf of the Employee for the Plan Year to the
Employee's Annual Compensation for the Plan Year.
A.1.3 "ACTUAL DEFERRAL RATIO" means the ratio of Section 401(k)
Contributions actually paid into the Trust on behalf of an Employee for a Plan
Year to the Employee's Annual Compensation for the same Plan Year. For this
purpose, Annual Compensation for any portion of the Plan Year in which the
Employee was not an eligible Employee (as defined in Section A.2.3) will not be
taken into account.
A.1.4 "ANNUAL ADDITIONS" means the sum of the following amounts credited
on behalf of a Participant for the Limitation Year: (a) Employer contributions,
(b) Employee contributions and (c) forfeitures. Excess 401(k) Contributions for
a Plan Year are treated as Annual Additions for that Plan Year even if they are
corrected through distribution. Excess Deferrals that are timely distributed as
set forth in Section A.3.1 will not be treated as Annual Additions.
A.1.5 "CONTRIBUTION PERCENTAGE" shall mean, for a specified group of
Employees for a Plan Year, the average of the ratios (calculated separately for
each Employee in the group) of the amount of Section 401(m) Contributions
actually paid into the Trust on behalf of the Employee for the Plan Year to the
Employee's Annual Compensation for the Plan Year.
A.1.6 "EXCESS AGGREGATE 401(M) CONTRIBUTIONS" means, with respect to any
Plan Year, the excess of (a) the aggregate amount of Section 401(m)
Contributions actually paid into the Trust on behalf of Highly Compensated
Employees for the Plan Year over (b) the maximum amount of those contributions
permitted under the limitations set out in the first sentence of Section A.2.4.
A.1.7 "EXCESS AMOUNT" shall mean the excess of the Annual Additions
credited to the Participant's Account for the Limitation Year over the Maximum
Permissible Amount.
A.1.8 "EXCESS 401(K) CONTRIBUTIONS" means, with respect to any Plan Year,
the excess of (a) the aggregate amount of Section 401(k) Contributions actually
paid to the Trustee on behalf of Highly Compensated Employees for the Plan Year
over (b) the maximum amount of those contributions permitted under the
limitations set out in the first sentence of Section A.2.3.
A.1.9 "LIMITATION YEAR" shall mean the Plan Year. All qualified plans
maintained by any Affiliated Employer must use the same Limitation Year. If the
Limitation Year is amended to a different 12-consecutive month period, the new
Limitation Year must begin on a date within the Limitation Year in which the
amendment is made.
A-1
A.1.10 "MAXIMUM PERMISSIBLE AMOUNT" shall mean the lesser of (a) the
dollar limitation in effect under section 415(c)(1)(A) of the Code for the
Limitation Year, or (b) 25 percent of the Participant's Annual Compensation for
the Limitation Year. The Annual Compensation limitation referred to in clause
(b) of the immediately preceding sentence shall not apply to any contribution
for medical benefits (within the meaning of section 401(h) or section
419(A)(f)(2) of the Code) that is otherwise treated as an Annual Addition under
section 415(L)(1) or section 419(A)(d)(2) of the Code. If a short Limitation
Year is created because of an amendment changing the Limitation Year to a
different 12-consecutive month period, the Maximum Permissible Amount shall not
exceed the dollar limitation in effect under section 415(c)(1)(A) of the Code
multiplied by a fraction, the numerator of which is the number of months in the
short Limitation Year, and the denominator of which is 12.
A.1.11 "SECTION 401(K) CONTRIBUTIONS" means the sum of Salary Deferral
Contributions made on behalf of the Participant during the Plan Year, and QNECs
that the Employer elects to have treated as section 401(k) Contributions
pursuant to section 401(k)(3)(d)(ii) of the Code.
A.1.12 "SECTION 401(M) CONTRIBUTIONS" shall mean the sum of Employer
Matching Contributions and After-Tax Contributions made on behalf of the
Participant during the Plan Year and other amounts that the Employer elects to
have treated as Section 401(m) Contributions pursuant to section 401(m)(3)(B) of
the Code. However, Employer Matching Contributions and Salary Deferral
Contributions that the Employer could otherwise elect to have treated as Section
401(m) Contributions are not Section 401(m) Contributions to the extent that
they are used to enable the Plan to satisfy the minimum contribution
requirements of section 416 of the Code.
PART A.2 LIMITATIONS ON CONTRIBUTIONS
A.2.1 LIMITATIONS BASED UPON DEDUCTIBILITY AND THE MAXIMUM ALLOCATION
PERMITTED TO A PARTICIPANT'S ACCOUNT. Notwithstanding any other provision of the
Plan, no Employer shall make any contribution that would be a nondeductible
contribution within the meaning of section 4972 of the Code or that would cause
the limitation on allocations to each Participant's Account under section 415 of
the Code and Section A.4.1 to be exceeded.
A.2.2 DOLLAR LIMITATION UPON SALARY DEFERRAL CONTRIBUTIONS. The maximum
Salary Deferral Contribution that a Participant may elect to have made on his
behalf during the Participant's taxable year may not, when added to the amounts
deferred under other plans or arrangements described in sections 401(k), 408(k)
and 403(b) of the Code, exceed $7,000 (as adjusted by the Secretary of
Treasury). For purposes of applying the requirements of Section A.2.3, Excess
Deferrals shall not be disregarded merely because they are Excess Deferrals or
because they are distributed in accordance with this Section. However, Excess
Deferrals made to the Plan on behalf of Non-Highly Compensated Employees are not
to be taken into account under Section A.2.3.
A.2.3 LIMITATION BASED UPON ACTUAL DEFERRAL PERCENTAGE. The Actual
Deferral Percentage for eligible Highly Compensated Employees for any Plan Year
must bear a relationship to the Actual Deferral Percentage for all other
eligible Employees for the PRECEDING Plan Year which meets either of the
following tests:
(a) the Actual Deferral Percentage of the eligible Highly
Compensated Employees is not more than the Actual Deferral Percentage of
all other eligible Employees multiplied by 1.25; or
(b) the excess of the Actual Deferral Percentage of the eligible
Highly Compensated Employees over that of all other eligible Employees is
not more than two percentage points, and the Actual Deferral Percentage of
the eligible Highly Compensated Employees is not more than the Actual
Deferral Percentage of all other eligible Employees multiplied by two.
For purposes of this test an eligible Employee is an Employee who is
directly or indirectly eligible to make Salary Deferral Contributions for all or
part of the Plan Year. A person who is suspended from making Salary Deferral
Contributions because he has made a withdrawal is an eligible Employee. If no
Salary Deferral Contributions are made for an eligible Employee, the Actual
Deferral Ratio that shall be included for him in
A-2
determining the Actual Deferral Percentage is zero. If the Plan and any other
plan or plans which include cash or deferred arrangements are considered as one
plan for purposes of section 401(a)(4) or 410(b) of the Code, the cash or
deferred arrangements included in the Plan and the other plans shall be treated
as one plan for purposes of this Section. If any Participant who is a Highly
Compensated Employee is a participant in any other cash or deferred arrangements
of the Employer, when determining the deferral percentage of such Participant,
all such cash or deferred arrangements are treated as one plan for these dates.
Notwithstanding the foregoing, an individual who is not a Highly
Compensated Employee will not be treated as an eligible Employee for purposes of
this Section A.2.3 if the Sponsor elects to apply section 401(b)(4)(B) of the
Code in determining whether the Plan meets the requirements of section 401(k)(3)
of the Code.
A Salary Deferral Contribution will be taken into account under the Actual
Deferral Percentage test of section 401(k) of the Code and this Section for a
Plan Year only if it relates to Considered Compensation that either would have
been received by the Employee in the Plan Year (but for the deferral election)
or is attributable to services performed by the Employee in the Plan Year and
would have been received by the Employee within 2 1/2 months after the close of
the Plan Year (but for the deferral election). In addition, a Section 401(k)
Contribution will be taken into account under the Actual Deferral Percentage
test of section 401(k) of the Code and this Section for a Plan Year only if it
is allocated to an Employee as of a date within that Plan Year. For this purpose
a Section 401(k) Contribution is considered allocated as of a date within a Plan
Year if the allocation is not contingent on participation or performance of
services after such date and the Section 401(k) Contribution is actually paid to
the Trust no later than 12 months after the Plan Year to which the Section
401(k) Contribution relates.
Failure to correct Excess 401(k) Contributions by the close of the Plan
Year following the Plan Year for which they were made will cause the Plan's cash
or deferred arrangement to be disqualified for the Plan Year for which the
Excess 401(k) Contributions were made and for all subsequent years during which
they remain in the Trust. Also, the Employer will be liable for a ten percent
excise tax on the amount of Excess 401(k) Contributions unless they are
corrected within 2 1/2 months after the close of the Plan Year for whiCh they
were made.
A.2.4 LIMITATION BASED UPON CONTRIBUTION PERCENTAGE. The Contribution
Percentage for eligible Highly Compensated Employees for any Plan Year must not
exceed the greater of the following:
(a) the Contribution Percentage for all other eligible Employees for
the preceding Plan Year multiplied by 1.25; or
(b) the lesser of the Contribution Percentage for all other eligible
Employees for the preceding Plan Year multiplied by two, or the
Contribution Percentage for all other eligible Employees for the preceding
Plan Year plus two percentage points.
For purposes of this test an eligible Employee is an Employee who is
directly or indirectly eligible to receive an allocation of Employer Matching
Contributions for all or part of the Plan Year. Except as provided below, an
Employee who would be eligible to receive an allocation of Employer Matching
Contributions but for his election not to participate is an eligible Employee.
An Employee who would be eligible to receive an allocation of Matching Employer
Contributions but for the limitations on his Annual Additions imposed by section
415 of the Code is an eligible Employee.
Notwithstanding the foregoing, an individual who is not a Highly
Compensated Employee will not be treated as an eligible Employee for purposes of
this Section A.2.4 if the Sponsor elects to apply section 401(b)(4)(B) of the
Code in determining whether the Plan meets the requirements of section 401(m)(2)
of the Code.
If no Section 401(m) Contributions are made on behalf of an eligible
Employee the Actual Contribution Ratio that shall be included for him in
determining the Contribution Percentage is zero. If the Plan and any other plan
or plans to which Section 401(m) Contributions are made are considered as one
plan for purposes of section 401(a)(4) or 410(b) of the Code, the Plan and those
plans are to be treated as one. The Actual Contribution Ratio of a Highly
Compensated Employee who is eligible to participate in more than one plan of an
Affiliated employer to which employee or matching contributions are made is
calculated by treating all the plans in which the
A-3
Employee is eligible to participate as one plan. However, plans that are not
permitted to be aggregated under Regulation section 1.410(m)-1(b)(3)(ii) are not
aggregated for this purpose.
An Employer Matching Contribution will be taken into account under this
Section for a Plan Year only if (1) it is allocated to the Employee's Account as
of a date within the Plan Year, (2) it is paid to the Trust no later than the
end of the 12-month period beginning after the close of the Plan Year, and (3)
it is made on behalf of an Employee on account of his Salary Deferral
Contributions for the Plan Year.
At the election of the Employer, a Participant's Salary Deferral
Contributions, and XXXXx made on behalf of the Participant during the Plan Year
shall be treated as Section 401(m) Contributions that are Employer Matching
Contributions provided that the conditions set forth in Regulation section
1.401(m)-1(b)(5) are satisfied. Salary Deferral Contributions may not be treated
as Employer Matching Contributions for purposes of the contribution percentage
test set forth in this Section unless such contributions, including those taken
into account for purposes of the test set forth in this Section, satisfy the
actual deferral percentage test set forth in Section A.2.3. Moreover, Salary
Deferral Contributions and QNECs may not be taken into account for purposes of
the test set forth in this Section to the extent that such contributions are
taken into account in determining whether any other contributions satisfy the
actual deferral percentage test set forth in Section A.2.3. Finally, Salary
Deferral Contributions and QNECs may be taken into account for purposes of the
test set forth in this Section only if they are allocated to the Employee's
Account as of a date within the Plan Year being tested within the meaning of
Regulation section 1.401(k)-1(b)(4).
Failure to correct Excess Aggregate 401(m) Contributions by the close of
the Plan Year following the Plan Year for which they were made will cause the
Plan to fail to be qualified for the Plan Year for which the Excess Aggregate
401(m) Contributions were made and for all subsequent years during which they
remain in the Trust. Also, the Employer will be liable for a ten percent excise
tax on the amount of Excess Aggregate 401(m) Contributions unless they are
corrected within 2 1/2 months after the close of the Plan YeAr for which they
were made.
A.2.5 ALTERNATIVE LIMITATION BASED UPON ACTUAL DEFERRAL PERCENTAGE AND
CONTRIBUTION PERCENTAGE. If the second alternative permitted in Sections A.2.3
and A.2.4 is used for both the actual deferral percentage test and the
contribution percentage test the following additional limitation on Salary
Deferral Contributions shall apply. The Actual Deferral Percentage plus the
Contribution Percentage of the eligible Highly Compensated Employees cannot
exceed the greater of (a) or (b), where
(a) is the sum of:
(i) 1.25 times the greater of the Actual Deferral Percentage
or the Contribution Percentage of the eligible Non-Highly
Compensated Employees for the preceding Plan Year, and
(ii) the lesser of (x) two percentage points plus the lesser
of the Actual Deferral Percentage or the Contribution Percentage of
the eligible Non-Highly Compensated Employees for the preceding Plan
Year or (y) two times the lesser of the Actual Deferral Percentage
or the Contribution Percentage of the group of eligible Non-Highly
Compensated Employees for the preceding Plan Year; and
(b) is the sum of:
(i) 1.25 times the lesser of the Actual Deferral Percentage or
the Contribution Percentage of the eligible Non-Highly Compensated
Employees for the preceding Plan Year, and
(ii) the lesser of (x) two percentage points plus the greater
of the Actual Deferral Percentage or the Contribution Percentage of
the eligible Non-Highly Compensated Employees for the preceding Plan
Year or (y) two times the greater of the Actual Deferral Percentage
or the Contribution Percentage of the group of eligible Non-Highly
Compensated Employees for the preceding Plan Year.
A-4
PART A.3 CORRECTION PROCEDURES FOR ERRONEOUS CONTRIBUTIONS
A.3.1 EXCESS DEFERRAL FAIL SAFE PROVISION. As soon as practical after the
close of each Plan Year, the Committee shall determine if there would be any
Excess Deferrals. If there would be an Excess Deferral by a Participant, the
Excess Deferral as adjusted by any earnings or losses, will be distributed to
the Participant no later than April 15 following the Participant's taxable year
in which the Excess Deferral was made. The income allocable to the Excess
Deferrals for the taxable year of the Participant shall be determined by
multiplying the income for the taxable year of the Participant allocable to
Salary Deferral Contributions by a fraction. The numerator of the fraction is
the amount of the Excess Deferrals made on behalf of the Participant for the
taxable year. The denominator of the fraction is the Participant's total Salary
Deferral Account balance as of the beginning of the taxable year plus the
Participant's Salary Deferral Contributions for the taxable year.
A.3.2 ACTUAL DEFERRAL PERCENTAGE FAIL SAFE PROVISION. As soon as
practicable after the close of each Plan Year, the Committee shall determine
whether the Actual Deferral Percentage for the Highly Compensated Employees
would exceed the limitation set forth in Section A.2.3. If the limitation would
be exceeded for a Plan Year, before the close of the following Plan Year (a) the
amount of Excess 401(k) Contributions for that Plan Year (and any income
allocable to those contributions as calculated in the specific manner required
by Section A.3.5) shall be distributed or (b) the Employer may make a Qualified
Nonelective Employer Contribution which it elects to have treated as a Section
401(k) Contribution.
The amount of Excess 401(k) Contributions to be distributed shall be
determined in the following manner:
First, the Plan will determine how much the Actual Deferral Ratio of the
Highly Compensated Employee with the highest Actual Deferral Ratio would have to
be reduced to satisfy the Actual Deferral Percentage Test or cause such Actual
Deferral Ratio to equal the Actual Deferral Ratio of the Highly Compensated
Employee with the next highest Actual Deferral Ratio. If a lesser reduction
would enable the Plan to satisfy the Actual Deferral Percentage Test, only this
lesser reduction may be made. Second, this process is repeated until the Actual
Deferral Percentage Test is satisfied. The amount of Excess 401(k) Contributions
is equal to the sum of these hypothetical reductions multiplied, in each case,
by the Highly Compensated Employee's Annual Compensation.
Then, the total amount of Excess 401(k) Contributions shall be distributed
on the basis of the respective amounts attributable to each Highly Compensated
Employee. The Highly Compensated Employees subject to the actual distribution
are determined using the "dollar leveling method." The Salary Deferral
Contributions of the Highly Compensated Employee with the greatest dollar amount
of Salary Deferral Contributions and other contributions treated as Section
401(k) Contributions for the Plan Year are reduced by the amount required to
cause that Highly Compensated Employee's Salary Deferral Contributions to equal
the dollar amount of the Salary Deferral Contributions and other contributions
treated as Section 401(k) Contributions for the Plan Year of the Highly
Compensated Employee with the next highest dollar amount. This amount is then
distributed to the Highly Compensated Employee with the highest dollar amount.
However, if a lesser reduction, when added to the total dollar amount already
distributed under this Section A.3.2, would equal the total Excess 401(k)
Contributions, the lesser reduction amount shall be distributed. This process
shall be continued until the amount of the Excess 401(k) Contributions have been
distributed. Recharacterized Excess 401(k) Contributions will first be
determined using the ratio leveling method, then the dollar leveling method.
QNECs will be treated as Section 401(k) Contributions only if: (a) the
conditions described in Regulation section 1.401(k)-1(b)(5) are satisfied and
(b) they are allocated to Participants' Accounts as of a date within that Plan
Year and are actually paid to the Trust no later than the end of the 12-month
period immediately following the Plan Year to which the contributions relate. If
the Employer makes a QNEC that it elects to have treated as a Section 401(k)
Contribution, the Contribution will be in an amount necessary to satisfy the
Actual Deferral Percentage test and will be allocated first to those Non-Highly
Compensated Employees who had the lowest Actual Deferral Ratio. The Excess
401(k) Contributions of Highly Compensated Employees will not be recharacterized
to the extent that the recharacterized amounts would exceed the Contribution
Percentage as determined prior to applying the Contribution Percentage
limitations.
A-5
Any distributions of the Excess 401(k) Contributions for any Plan Year are
to be made to Highly Compensated Employees on the basis of the amount of
contributions by, or on behalf of, each Highly Compensated Employee. The amount
of Excess 401(k) Contributions to be distributed for any Plan Year must be
reduced by any excess Salary Deferral Contributions previously distributed for
the taxable year ending in the same Plan Year.
A.3.3 CONTRIBUTION PERCENTAGE FAIL SAFE PROVISION. If the limitation set
forth in Section A.2.4 would be exceeded for any Plan Year any one or more of
the following corrective action shall be taken before the close of the following
Plan Year as determined by the Committee in its sole discretion: (a) the amount
of the Excess Aggregate 401(m) Contributions for that Plan Year (and any income
allocable to those Contributions as calculated in the manner set forth in
Section A.3.5) shall be either distributed, or forfeited to the extent they are
not vested or (b) the Employer may make a QNEC which it elects to have treated
as a Section 401(m) Contribution. Forfeitures of Excess Aggregate 401(m)
Contributions shall be allocated to Participants who are Non-Highly Compensated
Employees as if such Contributions were additional Employer Matching
Contributions for the Plan Year.
The amount of Excess Aggregate 401(m) Contributions to be distributed
shall be determined in the following manner:
First, the Plan will determine how much the Actual Contribution Ratio of
the Highly Compensated Employee with the highest Actual Contribution Ratio would
have to be reduced to satisfy the Actual Contribution Percentage Test or cause
such Actual Contribution Ratio to equal the Actual Contribution Ratio of the
Highly Compensated Employee with the next highest Actual Contribution Ratio. If
a lesser reduction would enable the Plan to satisfy the Actual Contribution
Percentage Test, only this lesser reduction may be made. Second, this process is
repeated until the Actual Contribution Test is satisfied. The amount of Excess
Aggregate 401(m) Contributions is equal to the sum of these hypothetical
reductions multiplied, in each case, by the Highly Compensated Employee's Annual
Compensation.
Then, the total amount of Excess Aggregate 401(m) Contributions shall be
distributed on the basis of the respective amounts attributable to each Highly
Compensated Employee. The Highly Compensated Employees subject to the actual
distribution are determined using the "dollar leveling method." The After-Tax
Contributions and Matching Contributions of the Highly Compensated Employee with
the greatest dollar amount of After-Tax Contributions and Matching Contributions
and other contributions treated as matching contributions for the Plan Year are
reduced by the amount required to cause that Highly Compensated Employee's
After-Tax Contributions and Matching Contributions and other contributions
treated as Section 401(m) Contributions for the Plan Year to equal the dollar
amount of the After-Tax Contributions and Matching Contributions and other
contributions treated as Section 401(m) Contributions for the Plan Year of the
Highly Compensated Employee with the next highest dollar amount. This amount is
then distributed to the Highly Compensated Employee with the highest dollar
amount. However, if a lesser reduction, when added to the total dollar amount
already distributed under this Section A.3.3, would equal the total Excess
Aggregate 401(m) Contributions, the lesser reduction amount shall be
distributed. This process shall be continued until the amount of the Excess
Aggregate 401(m) Contributions have been distributed.
The corrective actions take under this Section A.3.3 must satisfy the
requirements of section 401(a)(4) of the Code. After correction, each level of
Employer Matching Contributions must be currently and effectively available to a
group of employees that satisfies the minimum coverage requirements of section
410(b) of the Code. A method under which employee contributions are distributed
to highly compensated employees to the extent necessary to meet the requirements
of section 401(m)(2) while matching contributions attributable to such employee
contributions remain allocated to the employee's account will not meet the
requirement of section 401(a)(4).
A.3.4 ALTERNATIVE LIMITATION FAIL SAFE. As soon as practicable after the
close of each Plan Year, the Committee shall determine whether the alternative
limitation would be exceeded. If the limitation would be exceeded for any Plan
Year, before the close of the following Plan Year the Actual Deferral Percentage
or Contribution Percentage of the eligible Highly Compensated Employees, or a
combination of both, shall be reduced by distributions made in the manner
described in the Regulations. These distributions shall be in addition to and
not in lieu of distributions required for Excess 401(k) Contributions and Excess
Aggregate 401(m) Contributions.
A-6
A.3.5 INCOME ALLOCABLE TO EXCESS 401(K) CONTRIBUTIONS AND EXCESS AGGREGATE
401(M) CONTRIBUTIONS. The income allocable to Excess 401(k) Contributions for
the Plan Year shall be determined by multiplying the income for the Plan Year
allocable to Section 401(k) Contributions by a fraction. The numerator of the
fraction shall be the amount of Excess 401(k) Contributions made on behalf of
the Participant for the Plan Year. The denominator of the fraction shall be the
Participant's total Account balance attributable to Section 401(k) Contributions
as of the beginning of the Plan Year plus the Participant's Section 401(k)
Contributions for the Plan Year. The income allocable to Excess Aggregate 401(m)
Contributions for a Plan Year shall be determined by multiplying the income for
the Plan Year allocable to Section 401(m) Contributions by a fraction. The
numerator of the fraction shall be the amount of Excess Aggregate 401(m)
Contributions made on behalf of the Participant for the Plan Year. The
denominator of the fraction shall be the Participant's total Account balance
attributable to Section 401(m) Contributions as of the beginning of the Plan
Year plus the Participant's Section 401(m) Contributions for the Plan Year.
PART A.4 LIMITATION ON ALLOCATIONS
A.4.1 BASIC LIMITATION ON ALLOCATIONS. The Annual Additions which may be
credited to a Participant's Accounts under the Plan for any Limitation Year will
not exceed the Maximum Permissible Amount reduced by the Annual Additions
credited to a Participant's Account for the same Limitation Year under any other
qualified defined contribution plans maintained by any Affiliated Employer. If
the Annual Additions with respect to the Participant under such other qualified
defined contribution plans are less than the Maximum Permissible Amount and the
Employer Contribution that would otherwise be contributed or allocated to the
Participant's Accounts under the Plan would cause the Annual Additions for the
Limitation Year to exceed this limitation, the amount contributed or allocated
under the Plan will be reduced so that the Annual Additions under all qualified
defined contribution plans maintained by any Affiliated Employer for the
Limitation Year will equal the Maximum Permissible Amount. If the Annual
Additions with respect to the Participant under such other qualified defined
contribution plans maintained by any Affiliated Employer in the aggregate are
equal to or greater than the Maximum Permissible Amount, no amount will be
contributed or allocated to the Participant's Account under the Plan for the
Limitation Year.
A.4.2 ESTIMATION OF MAXIMUM PERMISSIBLE AMOUNT. Prior to determining the
Participant's actual Annual Compensation for the Limitation Year, the Employer
may determine the Maximum Permissible Amount on the basis of a reasonable
estimation of the Participant's Annual Compensation for such Limitation Year,
uniformly determined for all Participants similarly situated. As soon as is
administratively feasible after the end of the Limitation Year, the Maximum
Permissible Amount for the Limitation Year shall be determined on the basis of
the Participant's actual Annual Compensation for such Limitation Year.
A.4.3 ATTRIBUTION OF EXCESS AMOUNTS. If a Participant's Annual Additions
under the Plan and all other qualified defined contribution plans maintained by
any Affiliated Employer result in an Excess Amount, the total Excess Amount
shall be attributed to the Plan.
A.4.4 TREATMENT OF EXCESS AMOUNTS. If an Excess Amount attributed to the
Plan is held or contributed as a result of or because of (i) the allocation of
forfeitures, (ii) reasonable error in estimating a Participant's Considered
Compensation, (iii) reasonable error in calculating the maximum Salary Deferral
Contribution that may be made with respect to a Participant under section 415 of
the Code or (iv) any other facts and circumstances which the Commissioner of
Internal Revenue finds to be justified, the Excess Amount shall be reduced as
follows:
(a) First, the Excess Amount shall be reduced to the extent
necessary by distributing to the Participant all Salary Deferral
Contributions together with their earnings. These distributed amounts are
disregarded for purposes of the testing and limitations contained in this
Appendix A.
(b) Second, if the Participant is still employed by the Employer at
the end of the Limitation Year, then such Excess Amounts shall not be
distributed to the Participant, but shall be reallocated to a suspense
account and shall be reapplied to reduce future Employer Contributions
(including any allocation of forfeitures) under the Plan for such
Participant in the next Limitation Year, and for each succeeding
Limitation Year, if necessary.
A-7
(c) If, after application of paragraph (b) of this Section, an
Excess Amount still exists, and the Participant is not still employed by
the Employer at the end of the Limitation Year, then such Excess Amounts
in the Participant's Accounts shall not be distributed to the Participant,
but shall be reallocated to a suspense account and shall be reapplied to
reduce future Employer Contributions (including allocation of any
forfeitures), for all remaining Participants in the next Limitation Year
and each succeeding Limitation Year if necessary.
(d) If a suspense account is in existence at any time during the
Limitation Year pursuant to this Section, it will not participate in the
allocation of the Trust Fund's investment gains and losses. If a suspense
account is in existence at any time during a particular Limitation Year,
all amounts in the suspense account must be allocated and reallocated to
Participants' Accounts before any Employer Contribution may be made to the
Plan for that Limitation Year. Excess Amounts may not be distributed to
Participants or former Participants. If the Plan is terminated while a
suspense account described in this Section is in existence, the amount in
such suspense account shall revert to the Employer(s) to which it is
attributable.
A-8
APPENDIX B
TOP-HEAVY REQUIREMENTS
PART B.1 DEFINITIONS
DEFINITIONS. As used herein, the following words and phrases have the
meaning attributed to them below:
B.1.1 "AGGREGATE ACCOUNTS" means the total of all Account balances derived
from Employer Contributions and Rollover Contributions.
B.1.2 "AGGREGATION GROUP" means (a) each plan of the Employer or any
Affiliated Employer in which a Key Employee is a Participant and (b) each other
plan of the Employer or any Affiliated Employer which enables any plan in (a) to
meet the requirements of either section 401(a)(4) or 410 of the Code. Any
Employer may treat a plan not required to be included in the Aggregation Group
as being a part of the group if the group would continue to meet the
requirements of section 401(a)(4) and 410 of the Code with that plan being taken
into account.
B.1.3 "DETERMINATION DATE" means for a given Plan Year the last day of the
preceding Plan Year or in the case of the first Plan Year the last day of that
Plan Year.
B.1.4 "KEY EMPLOYEE" means an Employee or former or deceased Employee or
Beneficiary of an Employee who at any time during the Plan Year or any of the
four preceding Plan Years is (a) an officer of an Employer or any Affiliated
Employer having Annual Compensation greater than 50 percent of the annual
addition limitation of section 415(b)(1)(A) of the Code for the Plan Year, (b)
one of the ten employees having Annual Compensation from an Employer or any
Affiliated Employer of greater than 100 percent of the annual addition
limitation of section 415(c)(1)(A) of the Code for the Plan Year and owning or
considered as owning (within the meaning of section 318 of the Code) the largest
interest in an Employer or any Affiliated Employer, treated separately, (c) a
Five Percent Owner of an Employer or any Affiliated Employer, treated
separately, or (d) a one percent owner of an Employer or any Affiliated
Employer, treated separately, having Annual Compensation from an Employer or any
Affiliated Employer of more than $150,000.00. For this purpose no more than 50
employees or, if lesser, the greater of three employees or ten percent of the
employees shall be treated as officers. Section 416(i) of the Code shall be used
to determine percentage of ownership. For the purpose of the test set out in (b)
above, if two or more employees have the same interest in an Employer, the
employee with the greater Annual Compensation from the Employer shall be treated
as having the larger interest.
B.1.5 "NON-KEY EMPLOYEE" means any Employee who is not a Key Employee.
B.1.6 "TOP-HEAVY PLAN" means any plan which has been determined to be
top-heavy under the test described in Appendix B of the Plan.
PART B.2 APPLICATION
B.2.1 APPLICATION. The requirements described in this Appendix B shall
apply to each Plan Year that the Plan is determined to be a Top-Heavy Plan.
B.2.2 TOP-HEAVY TEST. If on the Determination Date the Aggregate Accounts
of Key Employees in the Plan exceed 60 percent of the Aggregate Accounts of all
Employees in the Plan, the Plan shall be a Top-Heavy Plan for that Plan Year. In
addition, if the Plan is required to be included in an Aggregation Group and
that group is a top-heavy group, the Plan shall be treated as a Top-Heavy Plan.
An Aggregation Group is a top-heavy group if on the Determination Date the sum
of (a) the present value of the cumulative accrued benefits for Key Employees
under all defined benefit plans in the Aggregation Group which contains the
Plan, plus (b) the total of all of the accounts of Key Employees under all
defined contribution plans included in the Aggregation Group (which contains the
Plan) is more than 60 percent of a similar sum determined for all employees
covered in the Aggregation Group which contains the Plan.
B-1
In applying the above tests, the following rules shall apply:
(a) in determining the present value of the accumulated accrued
benefits for any Employee or the amount in the account of any Employee,
the value or amount shall be increased by all distributions made to or for
the benefit of the Employee under the Plan during the five-year period
ending on the Determination Date;
(b) all rollover contributions made after December 31, 1983 by the
Employee to the Plan shall not be considered by the Plan for either test;
(c) if an Employee is a Non-Key Employee under the plan for the Plan
Year but was a Key Employee under the plan for another prior Plan Year,
his Account shall not be considered; and
(d) benefits shall not be taken into account in determining the
top-heavy ratio for any Employee who has not performed services for the
Employer during the last five-year period ending upon the Determination
Date.
B.2.3 VESTING RESTRICTIONS IF PLAN BECOMES TOP-HEAVY. If a Participant has
at least one Hour of Service during a Plan Year when the Plan is a Top-Heavy
Plan, he shall either vest under each of the normal vesting provisions of the
Plan or under the following vesting schedule, whichever is more favorable:
Percentage of Amount Invested
In Accounts Containing
Completed Years of Active Service Employer Contributions
--------------------------------- -----------------------------
Less than two years..............................................0
Two years but less than three years.............................20
Three years but less than four years............................40
Four years but less than five years.............................60
Five years but less than six years..............................80
Six years or more..............................................100
If the Plan ceases to be a Top-Heavy Plan, this requirement shall no longer
apply. After that date, the normal vesting provisions of the Plan shall be
applicable to all subsequent Contributions by the Employer.
B.2.4 MINIMUM CONTRIBUTIONS IF PLAN BECOMES TOP-HEAVY. If the Plan is a
Top-Heavy Plan and the normal allocation of the Employer Contribution and
forfeitures is less than three percent of any Non-Key Employee Participant's
Annual Compensation, the Committee, without regard to the normal allocation
procedures, shall allocate the Employer Contribution and the forfeitures among
the Participants who are in the employ of the Employer at the end of the Plan
Year in proportion to each Participant's Annual Compensation as compared to the
total Annual Compensation of all Participants for that Plan Year until each
Non-Key Employee Participant has had an amount equal to the lesser of (i) the
highest rate of Contribution applicable to any Key Employee, or (ii) three
percent of his Annual Compensation allocated to his Account. At that time, any
more Employer Contributions or forfeitures shall be allocated under the normal
allocation procedures described earlier in the Plan. Salary Deferral
Contributions made on behalf of Key Employees are included in determining the
highest rate of Employer Contributions. Salary Deferral Contributions made on
behalf of Non-Key Employees are not included for that purpose. Amounts that may
be treated as Section 401(k) Contributions made on behalf of Non-Key Employees
may not be included in determining the minimum contribution required under this
Section to the extent that they are treated as Section 401(k) Contributions for
purposes of the Actual Deferral Percentage test.
In applying this restriction, the following rules shall apply:
(a) Each Employee who is eligible for Participantship (without
regard to whether he has made mandatory contributions, if any are
required, or whether his compensation is less than a stated amount) shall
be entitled to receive an allocation under this Section; and
B-2
(b) All defined contribution plans required to be included in the
Aggregation Group shall be treated as one plan for purposes of meeting the
three percent maximum; this required aggregation shall not apply if the
Plan is also required to be included in an Aggregation Group which
includes a defined benefit plan and the Plan enables that defined benefit
plan to meet the requirements of sections 401(a)(4) or 410 of the Code.
B.2.5 DISREGARD OF GOVERNMENT PROGRAMS. If the Plan is a Top-Heavy Plan,
it must meet the vesting and benefit requirements described in this Article
without taking into account contributions or benefits under Chapter 2 of the
Code (relating to the tax on self-employment income), Chapter 21 of the Code
(relating to the Federal Insurance Contributions Act), Title II of the Social
Security Act, or any other Federal or State law.
B.2.6 RESTRICTIONS IF PLAN BECOMES SUPER TOP-HEAVY. For Plan Years
beginning before January 1, 2000, the Plan is a super Top-Heavy Plan if as of
the Determination Date the Plan would continue to meet the test specified in
Section 1.032 of this Appendix B for being a Top-Heavy Plan, if 90 percent were
substituted for 60 percent. In any Plan Year that the Plan is a super Top-Heavy
plan the limitations in section 415 of the Code and Appendix A of the Plan shall
be applied by substituting the number "1.00" for the number "1.25" wherever it
appears therein. Such substitution shall not cause a reduction in any accrued
benefit attributable to contributions for a Plan Year prior to the Plan Year in
which the Plan is a super Top-Heavy Plan.
B-3
APPENDIX C
ADMINISTRATION OF THE PLAN
C.1 APPOINTMENT, TERM, RESIGNATION, AND REMOVAL. The Board shall appoint a
Committee of not less than two persons, the members of which shall serve until
their resignation, death, or removal. The Sponsor shall notify the Trustee in
writing of its composition from time to time. Any member of the Committee may
resign at any time by giving written notice of such resignation to the Sponsor.
Any member of the Committee may be removed by the Board, with or without cause.
Vacancies in the Committee arising by resignation, death, removal, or otherwise
shall be filled by such persons as may be appointed by the Board.
C.2 POWERS. The Committee shall have exclusive responsibility for the
administration of the Plan, according to the terms and provisions of this
document, and shall have all powers necessary to accomplish such purposes,
including, but not by way of limitation, the right, power, and authority:
(a) to make rules and regulations for the administration of the Plan
which are not inconsistent with the terms and provisions thereof, provided
such rules and regulations are evidenced in writing;
(b) to construe all terms, provisions, conditions, and limitations
of the Plan; and its construction thereof made in good faith and without
discrimination in favor of or against any Participant or former
Participant shall be final and conclusive on all parties at interest;
(c) to correct any defect, supply any omission, or reconcile any
inconsistency which may appear in the Plan in such manner and to such
extent as it shall deem expedient to carry the Plan into effect for the
greatest benefit of all parties at interest, and its judgment in such
matters shall be final and conclusive as to all parties at interest;
(d) to select, employ, and compensate from time to time such
consultants, actuaries, accountants, attorneys, and other agents and
employees as the Committee may deem necessary or advisable for the proper
and efficient administration of the Plan, and any agent, firm, or employee
so selected by the Committee may be a disqualified person, but only if the
requirements of section 4975(d) of the Code have been met;
(e) to resolve all questions relating to the eligibility of
Employees to become Participants, and to determine the period of Active
Service and the amount of Considered Compensation upon which the benefits
of each Participant shall be calculated;
(f) to resolve all controversies relating to the administration of
the Plan, including but not limited to (1) differences of opinion arising
between the Employer and a Participant or former Participant, and (2) any
questions it deems advisable to determine in order to promote the uniform
and nondiscriminatory administration of the Plan for the benefit of all
parties at interest;
(g) to direct and instruct or to appoint an investment manager or
managers which would have the power to direct and instruct the Trustee in
all matters relating to the preservation, investment, reinvestment,
management, and disposition of the Trust assets; provided, however, that
the Committee shall have no authority that would prevent the Trustee from
being an "agent independent of the issuer," as that term is defined in
Rule 10b-18 promulgated under the Securities Exchange Act of 1934, at any
time that the Trustee's failure to maintain such status would result in
the Sponsor or any other person engaging in a "manipulative or deceptive
device or contrivance" under the provisions of Rule 10b-6 of such Act;
(h) to direct and instruct the Trustee in all matters relating to
the payment of Plan benefits and to determine a Participant's or former
Participant's entitlement to a benefit should he appeal a denial of his
claim for a benefit or any portion thereof; and
C-1
(i) to delegate such of its clerical and recordation duties under
the Plan as it may deem necessary or advisable for the proper and
efficient administration of the Plan.
C.3 ORGANIZATION. The Committee shall select from among its members a
chairman, who shall preside at all of its meetings, and shall select a
secretary, without regard as to whether that person is a member of the
Committee, who shall keep all records, documents, and data pertaining to its
supervision of the administration of the Plan.
C.4 QUORUM AND MAJORITY ACTION. A majority of the members of the Committee
shall constitute a quorum for the transaction of business, and the vote of a
majority of the members present at any meeting will decide any question brought
before that meeting. In addition, the Committee may decide any question by a
vote, taken without a meeting, of a majority of its members.
C.5 SIGNATURES. The chairman, the secretary, and any one or more of the
members of the Committee to which the Committee has delegated the power, shall
each, severally, have the power to execute any document on behalf of the
Committee, and to execute any certificate or other written evidence of the
action of the Committee. The Trustee, after being notified of any such
delegation of power in writing, shall thereafter accept and may rely upon any
document executed by such member or members as representing the action of the
Committee until the Committee files with the Trustee a written revocation of
that delegation of power.
C.6 DISQUALIFICATION OF COMMITTEE MEMBERS. A member of the Committee who
is also a Participant of the Plan shall not vote or act upon any matter relating
solely to himself.
C.7 DISCLOSURE TO PARTICIPANTS. The Committee shall make available to each
Participant, former Participant, and Beneficiary for his examination such
records, documents, and other data as are required under ERISA, but only at
reasonable times during business hours. No Participant, former Participant, or
Beneficiary shall have the right to examine any data or records reflecting the
compensation paid to any other Participant, former Participant, or Beneficiary,
and the Committee shall not be required to make any data or records available
other than those required by ERISA.
C.8 STANDARD OF PERFORMANCE. The Committee and each of its members shall
use the care, skill, prudence, and diligence under the circumstances then
prevailing that a prudent man acting in a like capacity and familiar with such
matters would use in conducting his business as the administrator of the Plan;
shall, when exercising its power to direct investments, diversify the
investments of the Plan so as to minimize the risk of large losses, unless under
the circumstances it is clearly prudent not to do so; and shall otherwise act in
accordance with the provisions of the Plan and ERISA.
C.9 LIABILITY OF ADMINISTRATIVE COMMITTEE AND LIABILITY INSURANCE. No
member of the Committee shall be liable for any act or omission of any other
member of the Committee, the Trustee, any investment manager, or any Participant
or former Participant who directs the investment of his Account or other agent
appointed by the Committee except to the extent required by the terms of ERISA,
and any other applicable state or federal law, which liability cannot be waived.
No Participant of the Committee shall be liable for any act or omission on his
own part except to the extent required by the terms of ERISA, and any other
applicable state or federal law, which liability cannot be waived. In this
connection, each provision hereof is severable and if any provision is found to
be void as against public policy, it shall not affect the validity of any other
provision hereof.
Further, it is specifically provided that the Trustee may, at the
direction of the Committee, purchase out of the Trust assets insurance for the
members of the Committee and any other fiduciaries appointed by the Committee,
and for the Trust itself to cover liability or losses occurring by reason of the
act or omission of any one or more of the members of the Committee or any other
fiduciary appointed by them under the Plan, provided such insurance permits
recourse by the insurer against the members of the Committee or the other
fiduciaries concerned in the case of a breach of a fiduciary obligation by one
or more members of the Committee or other fiduciary covered thereby.
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C.10 BONDING. No member of the Committee shall be required to give bond
for the performance of his duties hereunder unless required by a law which
cannot be waived.
C.11 COMPENSATION. The Committee shall serve without compensation for
their services, but shall be reimbursed by the Employers for all expenses
properly and actually incurred in the performance of their duties under the Plan
unless the Employers elect to have such expenses paid out of the Trust assets.
C.12 PERSONS SERVING IN DUAL FIDUCIARY ROLES. Any person, group of
persons, corporations, firm, or other entity may serve in more than one
fiduciary capacity with respect to the Plan, including the ability to serve both
as a successor trustee and as a member of the Committee.
C.13 ADMINISTRATOR. For all purposes of ERISA, the administrator of the
Plan within the meaning of ERISA shall be the Sponsor. The Sponsor shall have
final responsibility for compliance with all reporting and disclosure
requirements imposed with respect to the Plan under any federal or state law, or
any regulations promulgated thereunder.
C.14 NAMED FIDUCIARY. The members of the Committee shall be the "named
fiduciary" for purposes of section 402(a)(1) of ERISA, and as such shall have
the authority to control and manage the operation and administration of the
Plan, except to the extent such authority and control is allocated or delegated
to other parties pursuant to the terms of the Plan.
C.15 STANDARD OF JUDICIAL REVIEW OF COMMITTEE ACTIONS. The Committee has
full and absolute discretion in the exercise of each and every aspect of its
authority under the Plan, including without limitation, the authority to
determine any person's right to benefits under the Plan, the correct amount and
form of any such benefits; the authority to decide any appeal; the authority to
review and correct the actions of any prior administrative committee; and all of
the rights, powers, and authorities specified in this Appendix and elsewhere in
the Plan. Notwithstanding any provision of law or any explicit or implicit
provision of this document or, any action taken, or ruling or decision made, by
the Committee in the exercise of any of its powers and authorities under the
Plan will be final and conclusive as to all parties other than the Sponsor or
Trustee, including without limitation all Participants, former Participants and
Beneficiaries, regardless of whether the Committee or one or more members
thereof may have an actual or potential conflict of interest with respect to the
subject matter of such action, ruling, or decision. No such final action,
ruling, or decision of the Committee will be subject to de novo review in any
judicial proceeding; and no such final action, ruling, or decision of the
Committee may be set aside unless it is held to have been arbitrary and
capricious by a final judgment of a court having jurisdiction with respect to
the issue.
C.16 INDEMNIFICATION OF COMMITTEE BY THE SPONSOR. The Sponsor shall
indemnify and hold harmless the Committee, the Committee members, and any
persons to whom the Committee has allocated or delegated its responsibilities in
accordance with the provisions hereof, as well as any other fiduciary who is
also an officer, director, or Employee of an Employer, and hold each of them
harmless from and against all claims, loss, damages, expense, and liability
arising from their responsibilities in connection with the administration of the
Plan which is not otherwise paid or reimbursed by insurance, unless the same
shall result from their own willful misconduct.
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APPENDIX D
FUNDING
D.1 BENEFITS PROVIDED SOLELY BY TRUST. All benefits payable under the Plan
shall be paid or provided for solely from the Trust, and the Employer assumes no
liability or responsibility therefor.
D.2 FUNDING OF PLAN. The Plan shall be funded by one or more separate
Trusts. If more than one Trust is used, each Trust shall be designated by the
name of the Plan followed by a number assigned by the Committee at the time the
Trust is established.
D.3 INCORPORATION OF TRUST. Each Trust is a part of the Plan. All rights
or benefits which accrue to a person under the Plan shall be subject also to the
terms of the agreements creating the Trust or Trusts and any amendments to them
which are not in direct conflict with the Plan.
D.4 AUTHORITY OF TRUSTEE. Each Trustee shall have full title and legal
ownership of the assets in the separate Trust which, from time to time, is in
his separate possession. No other Trustee shall have joint title to or joint
legal ownership of any asset in one of the other Trusts held by another Trustee.
Each Trustee shall be governed separately by the trust agreement entered into
between the Employer and that Trustee and the terms of the Plan without regard
to any other agreement entered into between any other Trustee and the Employer
as a part of the Plan.
D.5 ALLOCATION OF RESPONSIBILITY. To the fullest extent permitted under
section 405 of ERISA, the agreements entered into between the Employer and each
of the Trustees shall be interpreted to allocate to each Trustee its specific
responsibilities, obligations and duties so as to relieve all other Trustees
from liability either through the agreement, Plan or ERISA, for any act of any
other Trustee which results in a loss to the Plan because of his act or failure
to act.
D.6 TRUSTEE'S FEES AND EXPENSES. The Trustee shall receive for its
services as Trustee hereunder the compensation which from time to time may be
agreed upon by the Sponsor and the Trustee. All of such compensation, together
with the expenses incurred by the Trustee in connection with the administration
of this Trust, including fees for legal services rendered to the Trustee, all
other charges and disbursements of the Trustee, and all other expenses of the
Plan shall be charged to and deducted from the Trust Fund, unless the Sponsor
elects in writing to have any part or all of such compensation, expenses,
charges, and disbursements paid directly by the Sponsor. The Trustee shall
deduct from and charge against the Trust assets any and all taxes paid by it
which may be levied or assessed upon or in respect of the Trust hereunder or the
income thereof, and shall equitably allocate the same among the several
Participants and former Participants.
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