BASIC PLAN DOCUMENT #05
03/24/95 PLAN #002
IRS LETTER SERIAL NO.: D363689a
PRISM(R) PROTOTYPE RETIREMENT PLAN & TRUST
SECTION 401(k) PROFIT SHARING PLAN
(NONSTANDARDIZED)
ADOPTION AGREEMENT(1)
The Employer(2), designated below, hereby establishes a profit-sharing plan
(optionally including a cash or deferred arrangement (as defined in Section
401(k) of the Internal Revenue Code)) for all Eligible Employees as defined in
this Adoption Agreement pursuant to the terms of the PRISM(R) PROTOTYPE
RETIREMENT PLAN & TRUST BASIC PLAN DOCUMENT # 05.
A. EMPLOYER INFORMATION:
1. NAME: XXXXXX LABORATORIES
2. ADDRESS: 000 XXXX XXXXXX XXXXXX
3. ADDRESS: ASHLAND, OHIO 44805
4. ATTENTION: XXXXX XXXXXXXX, XX. TELEPHONE: (000) 000-0000
5. EMPLOYER TAXPAYER IDENTIFICATION NUMBER(3): 00-0000000
B. BASIC PLAN PROVISIONS:
1. PLAN NAME (SELECT ONE):
a. /X/ This plan is established effective SEPTEMBER 1, 1996, (the
"Effective Date") as a profit sharing plan and trust (optionally
with a "cash or deferred arrangement" as defined in Code
Section 401(k)) to be known as XXXXXX LABORATORIES ASHLAND UNION
401(k) Plan and Trust (the "Plan") in the form of the PRISM(R)
PROTOTYPE RETIREMENT PLAN & TRUST.
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(1) Footnotes in this Adoption Agreement are not to be construed as part of the
Plan provisions but are explanatory only. To the extent a footnote is
inconsistent with the provisions of the Basic Plan Document or applicable
law, the provisions of the Plan shall be construed in conformity with the
Basic Plan Document or law.
(2) Terms that are capitalized are defined in the PRISM(R) PROTOTYPE RETIREMENT
PLAN & TRUST BASIC PLAN DOCUMENT.
(3) The Plan will have an individual TIN, distinct from the Employer TIN.
b. / / This plan is an amendment and restatement in the form of the
PRISM(R) PROTOTYPE RETIREMENT PLAN & TRUST, effective ________,
19__, (the "Effective Date") of the _______ Plan and Trust (the
"Plan"), originally effective as of _______, 19__ (the "Original
Effective Date").
2. EMPLOYER'S THREE DIGIT PLAN NUMBER: 005
3. COMMITTEE MEMBERS(4): See page 2B
4. DEFINITIONS:
a. COMPENSATION for allocation purposes:
i Will be determined over the following applicable period
(select only one):
(a) /X/ the Plan Year
(b) / / the period of Plan participation during the Plan
Year
(c) / / a consecutive 12 month period commencing on and
ending with, or within, the Plan Year.
ii /X/ If selected, Compensation will include Employer
contributions made pursuant to a Salary Reduction
Agreement, or other arrangement, which are not includible
in the gross income of the Employee under Sections 125,
402(e)(3), 402(h)(1)(B) or 403(b) of the Internal Revenue
Code.
iii Shall NOT include (select as many as desired):
(a) /X/ Bonuses
(b) /X/ Commissions
(c) / / Taxable fringe benefits identified below:
___________
(d) /X/ Other items of remuneration identified below:
OVERTIME AND SHIFT PREMIUM, LUMP SUM VACATION PAY,
SICK PAY, AND FRINGE BENEFITS (CASH AND NON-CASH)
iv Shall be limited to $_____, which shall be the maximum
amount of compensation considered for plan allocation
purposes (but not for testing purposes), and may not be an
amount in excess of the Internal
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(4) Committee members direct the day to day operation of the Plan. Committee
members serve at the pleasure of the Employer. See Section 11.4 for changes
in Committee membership. If no Committee members are specified, the
Employer shall assume responsibility for the operations of the Plan.
PAGE 2A
The individuals then serving on the Employee Benefits Board of Review of Xxxxxx
Laboratories shall appoint a Committee to serve as Plan Administrator of the
Plan. The current Committee members shall be the Director of Benefits
Administration, Corporate, of Xxxxxx Laboratories, or if there is no such person
by that title, such other person acting in a similar capacity, and the Director
of Human Resources, Abbott Ashland, or if there is no person by that title, such
other person acting in a similar capacity. In the event of a deadlock on any
matter that is voted on by the Committee, the Employee Benefits Board of Review
shall vote on such matter and the decision of the Employee Benefits Board of
Review shall control on such matter.
2B
Revenue Code Section 401(a)(17) limit in effect for the
Plan Year(5). If no amount is specified, Compensation
shall be limited to the Internal Revenue Code Secton
401(a)(17) amount, as adjusted by the Secretary of the
Treasury from time to time.
b. EARLY RETIREMENT DATE.
i /X/ is not applicable to this Plan
ii / / is the latter of the date on which the Participant
attains age ___ (not less than 55) and the date on which
the Participant completes ___ Years of Service.
c. HOUR OF SERVICE shall be determined on the basis of the method
selected below. Only one method may be selected. The method
shall be applied to all Employees covered under the Plan as
follows (select only one):
i /X/ On the basis of actual hours for which an Employee
is paid, or entitled to be paid.
ii / / On the basis of days worked. An Employee shall be
credited with ten (10) Hours of Service if under Section
1.1(U) of the Plan such Employee would be credited with
at least one (1) Hour of Service during the day.
iii / / On the basis of weeks worked. An Employee shall be
credited with forty-five (45) Hours of Service if under
Section 1.1(U) of the Plan such Employee would be
credited with at least one (1) Hour of Service during the
week.
iv / / On the basis of semi-monthly payroll periods. An
Employee shall be credited with ninety-five (95) Hours of
Service if under Section 1.1(U) of the Plan such Employee
would be credited with at least one (1) Hour of Service
during the semi-monthly payroll period.
v / / On the basis of months worked. An Employee shall be
credited with one hundred ninety (190) Hours of Service
if under Section 1.1(U) of the Plan such Employee would
be credited with at least one (1) Hour of Service during
the month.
d. LIMITATION YEAR shall mean the 12 month period commencing on
JANUARY 1 and ending on DECEMBER 31.
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(5) If no amount is specified, the maximum amount of Compensation allowed under
Code Section 401(a)(17) (the "$150,000 limit" ("$200,000 limit" prior to
the Plan Year beginning before January 1, 1994)), as adjusted from time to
time, shall be used.
PAGE 3
e. NORMAL RETIREMENT DATE for each Participant shall mean (select
one):
i /X/ the date the Participant attains age: 65 (not to
exceed 65)
ii / / the latter of the date the Participant attains age __
(not to exceed 65) or the ____ (not to exceed 5th)
anniversary of the participation commencement date. If for
the Plan Years beginning before January 1, 1988, Normal
Retirement Date was determined with reference to the
anniversary of the participation commencement date (more
than 5 but not to exceed 10 years), the anniversary date
for Participants who first commenced participation under
the Plan before the first Plan Year beginning on or after
January 1, 1988 shall be the earlier of (A) the tenth
anniversary of the date the Participant commenced
participation in the Plan (or such anniversary as had been
elected by the employer, if less than 10) or (B) the fifth
anniversary of the first day of the first Plan Year
beginning on or after January 1, 1988. Notwithstanding any
other provisions of the Plan, the participant commencement
date is the first day of the first Plan Year in which the
Participant commenced participation in the Plan.
f. PERMITTED DISPARITY LEVEL, for purposes of allocating Employer
Contributions, shall mean (select only one):
i /X/ Not applicable - the Plan does not use permitted
disparity.
ii / / The Taxable Wage Base, which is the contribution and
benefit base under section 230 of the Social Security Act
at the beginning of the year.
iii / / ___% (not greater than 100%) of the Taxable Wage Base
as defined in B(4)(f)(ii) above.
iv / / $______, provided that the amount does not exceed the
Taxable Wage Base as defined in B(4)(f)(ii) above.
g. PLAN YEAR shall mean (select and complete only one of the
following):
i /X/ the 12-consecutive month period which coincides with
the Limitation Year. The first Plan Year shall be the
period commencing on the Effective Date and ending on the
last day of the Limitation Year.
ii / / the 12-consecutive month period commencing on ______,
19___, and each annual anniversary thereof.
iii / / the calendar year (January 1 through December 31).
PAGE 4
h. QUALIFIED DISTRIBUTION DATE, for purposes of making
distributions under the provisions of a Qualified Domestic
Relations Order (as defined in Internal Revenue Code Section
414(p)), /X/ SHALL / / SHALL NOT be the date the order is
determined to be qualified. If SHALL is selected, the
Alternate Payee will be entitled to an immediate distribution
of benefits as directed by the Qualified Domestic Relations
Order. If SHALL NOT is selected, the Alternate Payee may only
take a distribution on the earliest date that the Participant
is entitled to a distribution.
i. SPOUSE:
/ / If selected, Spouse shall mean only that person who has
actually been the Participant's spouse for at least one
year.
j. YEAR OF SERVICE shall mean:
i For ELIGIBILITY purposes (select one of the following):
(a) / / the 12 consecutive months during which an Employee
is credited with ___ (not more than 1000) Hours of
Service.
(b) /X/ a Period of Service (using the elapsed time method
of counting Service, as described in Section
1.1(N)(3) of the Plan).
ii For ALLOCATION accrual purposes (select one of the
following):
(a) / / the 12 consecutive months during which an Employee
is credited with ___ (not more than 1000) Hours of
Service.
(b) /X/ a Period of Service (using the elapsed time method
of counting Service, as described in Section
1.1(N)(3) of the Plan).
iii For VESTING service purposes (select one of the following):
(a) / / the 12 consecutive months during which an Employee
is credited with ___ (not more than 1000) Hours of
Service.
(b) /X/ a Period of Service (using the elapsed time method
of counting Service, as described in Section
1.1(N)(3) of the Plan).
iv For purpose of computing Years of Service in plans where
Year of Service is defined in terms of Hours of Service),
the consecutive 12 month period shall be:
PAGE 5
(a) For ELIGIBILITY purposes, the first Year of Service
shall be computed using the 12 month period commencing
on the Employee's date of hire and ending on the first
annual anniversary of the Employee's date of hire (the
"Initial Computation Period"). In the event an employee
does not complete an eligibility Year of Service during
this initial computation period, the computation period
shall be (select only one):
(1) / / the period commencing on each annual
anniversary of the Employee's date of hire
and ending on the next annual anniversary of
the Employee's date of hire.
(2) / / the Plan Year, commencing with the Plan Year
in which the Initial Computation Period
ends.
(b) For VESTING purposes, Years of Service shall be
computed on the basis of:
(1) / / the period commencing on each annual
anniversary of the Employee's date of hire
and ending on the next annual anniversary of
the Employee's date of hire.
(2) / / the Plan Year, commencing with the first
Plan Year an Employee completes an Hour of
Service.
(c) For ALLOCATION accrual purposes, Year of Service shall
be computed on the basis of the Plan Year.
v / / For ELIGIBILITY purposes, Years of Service with the
following Predecessor Employers shall count in fulfilling
the eligibility requirements for this Plan:
_________
vi / / For VESTING purposes, Years of Service with the following
Predecessor Employers shall count for purposes of
determining the nonforfeitable amount of a Participant's
account:
5. COVERAGE:
This Plan is extended by the Employer to the following Employees
who have met the eligibility requirements (select as many as
appropriate):
i / / All Employees
ii / / Salaried Employees
iii / / Sales Employees
PAGE 6
iv / / Hourly Employees
v / / Leased Employees
vi / / All Employees except (select as applicable):
(a) / / those who are members of a unit of Employees
covered by a collective bargaining agreement
between the Employer and Employee
representatives, if retirement benefits were
the subject of good faith bargaining and if two
percent or less of the Employees who are
covered pursuant to that agreement are
professionals as defined in Section 1.410(b)-9
of the Regulations. For this purpose, the term
"Employee representative" does not include any
organization more than half of whose members
are Employees who are owners, officers, or
executives of the Employer.
(b) / / those who are nonresident aliens (within the
meaning of Internal Revenue Code Section
7701(b)(1)(B)) and who receive no earned income
(within the meaning of Internal Revenue Code
Section 911(d)(2)) from the Employer which
constitutes income from sources within the
United States (within the meaning of Internal
Revenue Code Section 861(a)(3)).
vii /X/ Union Employees (who are members of the following
unions or union affiliates:
UNITED STEELWORKERS OF AMERICA LOCAL UNION NO. 196-L
viii / / Other Employees, described as follows:
____________
6. ELIGIBILITY:
An Employee covered by the Plan may become a Participant upon
completion of the following eligibility requirements:
a. SERVICE(6):
i / / There shall be no minimum service requirement for an
Employee to become a Participant.
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(6) If a fractional year is elected, the elapsed time method of computing
service shall be used for the fractional year. Eligibility provisions for
optional cash or deferred arrangements are contained in Item C of this
Adoption Agreement.
PAGE 7
ii /X/ The Employee must complete 1 MONTH of Service (not more
than 2 years) to be a Participant for purposes of
receiving allocations of Employer Profit Sharing
Contributions.
b. AGE:
i /X/ There shall be no minimum age requirement for an
Employee to become a Participant.
ii / / The Employee must attain age __ (not more than 21) to be
a Participant in the Plan.
c. WAIVER OF AGE AND SERVICE REQUIREMENTS:
i / / Notwithstanding the provisions of Items B(6)(a) and (b),
Employees who have not satisfied the age and service
requirements, but would otherwise be eligible to
participate in the plan, shall be eligible to
participate on the Effective Date.
ii / / For new Plans, notwithstanding the provisions of Items
B(6)(a) and (b), Employees who have not satisfied the
age and service requirements, but would otherwise be
eligible to participate in the plan, shall be eligible
to participate on the Effective Date.
d. ENTRY DATES:
Upon completion of the eligibility requirements, an Employee
shall commence participation in the Plan (select only one):
i /X/ As soon as practicable under the payroll practices
utilized by the Employer, and consistently applied to
all Employees, or if earlier, the first day of the Plan
Year.
ii / / As of the first day of the month following the
completion of the eligibility requirements.
iii / / As of the earliest of the first day of the Plan Year,
fourth, seventh or tenth month of the Plan Year next
following completion of the eligibility requirements.
iv / / As of the earliest of the first day of the Plan Year or
seventh month of the Plan Year next following completion
of the eligibility requirements.
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PAGE 8
v / / As of the first day of the Plan Year next following
completion of the eligibility requirements (may only be
selected if the eligibility year of service requirement
is 6 months or less).
7. VESTING:
a. The percentage of a Participant's Employer Contribution Account
(attributable to Employer Profit Sharing Contributions) to be
vested in him or her upon termination of employment prior to
attainment of the Plan's Normal Retirement Date shall be(8):
COMPLETED YEARS OF SERVICE
1 2 3 4 5 6 7
----- ----- ----- ----- ----- ----- -----
i / / 100%
----- -----
ii / / 100%
----- ----- -----
iii / / 20% 40% 60% 80% 100%
----- ----- ----- ----- ----- -----
iv / / 20% 40% 60% 80% 100%
----- ----- ----- ----- ----- ----- -----
v / / 10% 20% 30% 40% 60% 80% 100%
----- ----- ----- ----- ----- ----- -----
vi / / 100%
----- ----- ----- ----- -----
vii / / 100%
----- ----- ----- ----- ----- ----- -----
vii / / Full and immediate vesting upon entry into the Plan(9)
Notwithstanding anything to the contrary in the Plan, the
amount inserted in the blanks above shall not exceed the
limits specified in Code Section 411(a)(2).
b. For purposes of computing a Participant's vested account balance,
Years of Service for vesting purposes / / SHALL / / SHALL NOT
include Years of Service before the Employer maintained this Plan
or any predecessor plan, and / / SHALL / / SHALL NOT include Years
of Service before the Employee attained age 18.
c. Notwithstanding the provisions of this Item B(7)(c) of the
Adoption Agreement, a Participant shall become fully vested in his
Participant's Employer Contribution if:(10)
i / / the Participant's job is eliminated without the
Participant being offered a comparable position
elsewhere with the Employer.
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(8) Notwithstanding the selection made in this Item B(7)(a), a Participant
shall be fully vested in his or her Employer Contribution Accounts if the
Participant dies or becomes Disabled while in the employ of the Employer.
(9) If more than one Year of Service is an eligibility requirement, Item viii
MUST be selected.
(10) The provisions of this section will be administered by the Employer on a
consistent and nondiscriminatory basis.
PAGE 9
ii / / for such reason as is described below:
________
8. EMPLOYER PROFIT SHARING CONTRIBUTIONS:
a. CONTRIBUTIONS:
i / / In its discretion, the Employer may contribute Employer
Profit Sharing Contributions to the Plan.
ii / / The Employer shall contribute Employer Profit Sharing
Contributions to the Plan in the amount of ___% of the
Compensation of all Eligible Participants under the
Plan.
iii / / If selected, the Employer may make Employer Profit
Sharing Contributions without regard to current or
accumulated Net Profits of the Employer for the taxable
year ending with, or within the Plan Year.
iv / / If selected, the Employer may designate all or any part
of the Employer Profit Sharing Contributions as
Qualified Nonelective Contributions, provided, however,
that contributions so designated will be subject to the
same vesting, distribution, and withdrawal restrictions
as Before Tax Contributions(11).
b. ALLOCATIONS:
Employer Profit Sharing Contributions shall be allocated to the
accounts of eligible Participants according to the following
selected allocation formula:
i / / The Employer Profit Sharing Contributions shall be
allocated to each eligible Participant's account in the
ratio which the Participant's Compensation bears to the
Compensation of all eligible Participants. Employer
Profit Sharing Plan Contributions, shall be allocated to
the accounts of Participants who have completed a Year
of Service(12) (select one):
(a) / / as of the last day of the month preceding the
month in which the contribution was made.
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(11) Amounts designated as Qualified Nonelective Contributions will be allocated
pursuant to Section 3.1(A)(14) of the Basic Plan Document.
(12) In the event contributions are allocated on a basis other than a full plan
year, the Year of Service shall be based on the elapsed time method of
calculation, and a Participant shall be deemed to have completed an
appropriate Period of Service for allocation purposes if the Participant
has completed a pro-rata Period of Service corresponding to the interval on
which contributions are allocated.
PAGE 10
(b) / / as of the last day of the Plan quarter
preceding the quarter in which the
contribution was made.
(c) / / as of the last day of the Plan Year.
ii / / The Employer Profit Sharing Contributions shall be
allocated in accordance with the following formula:
(a) If the Plan is Top-Heavy, the contribution shall be
first credited to each eligible Participant's
Account in the ratio which the Participant's
Compensation bears to the total Compensation of all
eligible Participants, up to 3% of each
Participant's Compensation.
(b) If the Plan is Top-Heavy, any Employer Profit
Sharing Contribution remaining after the allocation
in (a) above shall be credited to each eligible
Participant's account in the ratio which the
Participant's Excess Compensation(13) bears to the
total Excess Compensation of all eligible
Participants, up to 3% of each eligible
Participant's Excess Compensation.
(c) Any contributions remaining after the allocation
in (b) above shall be credited to each eligible
Participant's account in the ratio which the sum
of the Participant's total Compensation and Excess
Compensation bears to the sum of the total
Compensation and Excess Compensation of all
eligible Participants, up to an amount equal to the
maximum Excess Percentage times the sum of the
Participant's Compensation and Excess
Compensation. If the Plan is Top-Heavy, the
maximum Excess Percentage is N/A% (insert
percentage). If the Plan is not Top-Heavy, the
maximum Excess Percentage is N/A% (insert
percentage, which shall not exceed the prior
Excess Percentage limitation specified by more than
3).
NOTE: If the Permitted Disparity Level defined at Item
B(4)(f) is the Taxable Wage Base (which is the
contribution and benefit base under section 230 of
the Social Security Act at the beginning of the
year), then the maximum Excess Percentage should be
2.7% if the Plan is Top Heavy and 5.7% if the Plan
is not Top-Heavy.
If the Permitted Disparity Level defined at Item
B(4)(f) is greater than 80% but less than 100% of
the Taxable
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(13) Excess Compensation means a Participant's Compensation in excess of the
Permitted Disparity Level specified in the Definitions section of this
Adoption Agreement.
PAGE 11
Wage Base, then the maximum Excess Percentage
should be 2.4% if the Plan is Top-Heavy and 5.4% if
the Plan is not Top-Heavy.
If the Permitted Disparity Level defined at Item
B(4)(f) is greater than the greater of $10,000 or
20% of the Taxable Wage Base, but not more than
80%, then the maximum Excess Percentage should be
1.3% if the Plan is Top-Heavy and 4.3% if the Plan
is not Top-Heavy.
(d) Any remaining Employer Profit Sharing Contribution
shall be allocated among eligible Participants'
accounts in the ratio which the Participant's
Compensation bears to the total Compensation of all
Participants.
iii / / If selected, and the Employer has elected to allocate
Employer Profit Sharing Plan Contributions as of the
last day of the Plan Year, a Participant must be
employed by the Employer on the last day of the Plan
Year in order to receive an allocation(14).
iv / / A Participant who terminates before the end of the
period for which contributions are allocated shall share
in the allocation of Employer Profit Sharing
Contributions if termination of employment was the
result of (select all that apply):
(a) / / retirement
(b) / / disability
(c) / / death
(d) / / other, as specified below:
_____________
9. ROLLOVER & TRANSFER CONTRIBUTIONS (SELECT ONE):
a. /X/ Subject to policies, applied in a consistent and
nondiscriminatory manner, adopted by the Committee, each
Employee, who would otherwise be eligible to participate in
the Plan except that such Employee has not yet met the
eligibility requirements, and each Participant may make a
Rollover Contribution as described in Internal Revenue Code
Sections 402(a)(5), 403(a)(4) or 408(d)(3).
b. / / Subject to policies, applied in a consistent and
nondiscriminatory manner, adopted by the Committee, each
Participant may make a
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(14) This option shall only be effective if Item 8(b)(i)(c) has been selected.
Even if this Item is selected, the provisions of Section 4.8 of the Basic
Plan Document may supersede this requirement if necessary to satisfy Code
Sections 401(a)(26) and 410(b).
PAGE 12
Rollover Contribution as described in Internal Revenue Code
Sections 402(a)(5), 403(a)(4) or 408(d)(3).
c. / / No Employee shall make Rollover Contributions to the Plan.
10. DISTRIBUTIONS:
a. DISTRIBUTIONS UPON SEPARATION FROM SERVICE:
The Normal Form of Benefit under the Plan shall be a single lump
sum distribution, made /X/ (if selected) as soon as
administratively practical after receipt of a distribution
request from a Participant entitled to a distribution or / / (if
selected) upon the Participant's attainment of the Plan's Early
Retirement Date or the Plan's Normal Retirement Date, whichever
is earlier.
In addition to the Normal Form of Benefit, the Participant shall
be entitled to select from among the following optional forms of
benefit specified by the employer (select as many as apply):
i / / Installment payments
ii / / Such other forms as may be specified below:
b. IN-SERVICE DISTRIBUTIONS (SELECT AS MAY BE APPROPRIATE):
i /X/ There shall be no in-service distribution of Participant
account balances derived from Employer Profit Sharing
Contributions.
ii / / Participants may request an in-service distribution of
their account balance attributable to Employer Profit
Sharing Contributions, for the following reasons:
(a) / / For purposes of satisfying a financial hardship,
as determined in accordance with the uniform
nondiscriminatory policy of the Committee;
(b) / / Attainment of age 59 1/2 by the Participant; or
(c) / / Attainment of the Plan's Normal Retirement Date
by the Participant.
11. FORFEITURES:
a. Forfeitures of amounts attributable to Employer Profit Sharing
Contributions shall be reallocated as of:
PAGE 13
i / / the last day of the Plan Year in which the
Forfeiture occurred.
ii / / the last day of the Plan Year following the Plan Year in
which the Forfeiture occurred.
iii / / the last day of the Plan Year in which the Participant
suffering the Forfeiture has incurred five consecutive
One Year Breaks in Service.
b. Forfeitures of Employer Profit Sharing Contributions shall be
reallocated as follows:
i / / Not applicable as Employer Profit Sharing Contributions
are always 100% vested and nonforfeitable.
ii / / Used first to pay the expenses of administering the
Plan, and then allocated pursuant to one of the
following two options(15):
iii / / Forfeitures shall be allocated to Participant's accounts
in the same manner as Employer Profit Sharing
Contributions, Employer Matching Contributions,
Qualified Nonelective Contributions or Qualified
Matching Contributions, in the discretion of the
Employer, for the year in which the Forfeiture arose.
iv / / Forfeitures shall be applied to reduce the Employer
Profit Sharing Contributions, Employer Matching
Contributions, Qualified Nonelective Contributions or
Qualified Matching Contributions, in the discretion of
the Employer, for the Plan Year following the Plan Year
in which the Forfeiture arose.
12. LIMITATIONS ON ALLOCATIONS:
If the Employer maintains or ever maintained another qualified
retirement plan in which any Participant in this Plan is (or was) a
participant, or could possibly become a participant, the Employer must
complete the following:
a. If the Participant is covered under another qualified defined
contribution plan maintained by the Employer other than a Master
or Prototype Plan:
i / / The provisions of this Plan shall apply as if the other
plan were a Master or Prototype plan; or,
ii / / The following provisions will be effective to limit the
total Annual Additions to the Maximum Permissible
Amount, and
----------------
(15) If this option is selected, iii or iv MUST be selected to reallocate
Forfeitures of Employer Profit Sharing Contributions REMAINING after
expenses of administering the Plan have been paid.
PAGE 14
will properly reduce any Excess Amounts, in a manner
that precludes Employer discretion:
b. If the Participant is or ever has been a participant in a
qualified defined benefit plan maintained by the Employer, the
following provisions will be effective to satisfy the 1.0
limitation of Internal Revenue Code Section 415(e), in a manner
that precludes Employer discretion:
SEE ADDENDUM
13. INTERNAL REVENUE CODE SECTION 411(d)(6) PROTECTED BENEFITS:
/ / If selected, the Plan has Internal Revenue Code Section 411(d)(6)
Protected Benefits from a prior plan that this Plan amends, that
must be protected.
14. TOP-HEAVY PLAN PROVISIONS:
For each Plan Year in which the Plan is a Top-Heavy Plan the following
provisions will apply:
a. The percentage of a Participant's Employer Contribution Account
to be vested in him upon termination of employment prior to
retirement shall be:
i / / a percentage determined in accordance with the following
schedule:
YEARS OF SERVICE PERCENTAGE
---------------- ----------
Less than two 0
Two but less than three 20
Three but less than four 40
Four but less than five 60
Five but less than six 80
Six or more 100;
ii / / 100% vesting after ___ (not to exceed 3) Years of
Service; provided, however, that Years of Service may
not exceed two (2) if the service requirement for
eligibility exceeds 1 year; or
iii /X/ computed in accordance with the vesting schedule
selected by the Employer in Items B(7)(a) or C(4)(d), as
long as the benefits under the vesting schedule in Items
B(7)(a) or C(4)(d) vest at least as rapidly as the two
options specified in this Item B(14)(a), above.
If the vesting schedule under the Plan shifts in or out of the
schedules above for any Plan Year because of the Plan's Top-Heavy
status, such shift
PAGE 15
is an amendment to the vesting schedule and the election
Section 2.2 of the Basic Plan Document applies.
b. For purposes of minimum Top-Heavy allocations, contributions and
forfeitures equal to ___% (not less than 3%) of each Non-key
Employee's Compensation will be allocated to each Participant's
Contribution Account when the Plan is a Top-Heavy Plan, except as
otherwise provided in the Basic Plan Document. This Item 14 will
not apply to any Participant to the extent the Participant is
covered under any other plan or plans of the Employer and the
Employer completes the following: (Insert the name of the plan
or plans which will meet the minimum allocation or benefit
requirement applicable to Top-Heavy plans.)
c. The Valuation Date as of which account balances or accrued
benefits are valued for purposes of computing the Top-Heavy Ratio
shall be the last day of each Plan Year.
d. If the Employer maintains or has ever maintained one or more
defined benefit plans which have covered or could cover a
Participant in this Plan, complete the following:
Present Value: For purposes of establishing Present Value to
compute the Top-Heavy Ratio, any benefit shall be discounted only
for mortality and interest based on the following:
Interest rate ____% Mortality table
15. INVESTMENTS:
a. Investments made pursuant to the investment direction provisions
of the Basic Plan Document shall be made into any appropriate
Investment Fund as selected by the Employer. In addition,
investment of Plan assets is expressly authorized, as required
by Revenue Ruling 81-100, in each of the following common or
collective funds sponsored by the Trustee, or an affiliate of
the Trustee(16):
SOCIETY NATIONAL BANK EB MANAGED GUARANTEED INCOME CONTRACT
FUND, THE SOCIETY NATIONAL BANK MULTIPLE INVESTMENT TRUST
FOR EMPLOYEE BENEFIT TRUSTS, AND OTHER COLLECTIVE TRUSTS
EXEMPT FROM TAX UNDER IRC SECTION 501 AND AS DESCRIBED IN
REV. RUL. 81-100.
b. /X/ If selected, an Employer Stock Fund shall be available as an
Investment Fund pursuant to the terms of the Basic Plan
Document.
/ / If selected, and an Employer Stock Fund is available as
an Investment Fund, Participants will have the right,
notwith-
----------------
(16) This Item is for use in identifying collective trust funds, which, pursuant
to Revenue Ruling 81-100 must be specifically referenced in the Plan.
Actual Investment Funds are referenced on the Investment Fund Designation
form attached to this
Adoption Agreement.
PAGE 16
standing any other provisions of the Plan, to direct
that a portion of the Plan assets held for their benefit
and invested in the Employer Stock Fund be diversified
pursuant to the provisions of Section 10.7(F) of the
Basic Plan Document.
c. Participants may make changes of existing account balances and
future contributions from among the Investment Funds offered:
i / / Once during each business day that the Trustee and the
New York Stock Exchange are open.
ii / / Once during each calendar month.
iii / / Once during each quarter of the Plan Year.
iv /X/ Once during each rolling 30 day period.
d. /X/ If selected, the Participant shall be restricted in making
changes of existing account balances from any Investment
Fund, as specified in the terms or conditions of such
Investment Fund, and the Employer shall attach an addendum
specifying such restriction.
e. The Participant will designate into which Investment Funds all
contributions to their accounts are made, EXCEPT the following:
i / / Employer Profit Sharing Contributions
ii /X/ Employer Mandatory Matching Contributions
iii / / Employer Discretionary Matching Contributions
iv /X/ Qualified Matching Contributions
v / / Qualified Nonelective Contributions
f. /X/ If selected, and to the extent a selection is made above, the
Employer shall attach an Investment Direction Addendum
specifying how the contributions so specified shall be
invested among the Investment Fund.
g. / / If selected, the Participant shall be restricted in the use
of the Employer Stock Fund as an Investment Fund for
designating the investment of contributions in the
Participant's account, as follows:
i / / The Participant may not direct the investment of
Plan assets held in their account into the Employer
Stock Fund.
ii / / The Participant may direct ___% of the following
contributions into the Employer Stock Fund:
PAGE 17
(a) / / Employer Profit Sharing Contributions
(b) / / Employer Mandatory Matching Contributions
(c) / / Employer Discretionary Matching
Contributions
(d) / / Qualified Matching Contributions
(e) / / Qualified Nonelective Contributions
iii / / ___% of the following contributions will be invested
into the Employer Stock Fund, with the balance invested
among:
(a) / / the other Investment Funds, including the
Employer Stock Fund
(b) / / the other Investment Funds, NOT including
the Employer Stock Fund
16. LOANS (SELECT ONE):
a. /X/ Loans may be made from the Plan in accordance with the Basic
Plan Document and such policies and procedures as the
Committee may adopt and apply on a consistent and
nondiscriminatory basis(17).
b. / / No loans shall be made from the Plan.
17. TRUSTEE:
The Trustee of this Plan shall be KEY TRUST COMPANY OF OHIO, N.A. (a
bank or trust company affiliated with KeyCorp within the meaning of
Internal Revenue Code Section 1504).
18. EFFECTIVE DATE ADDENDUM:
/ / If selected, the following provisions shall have the specified
effective dates (which are different from the date specified in
Item B(1)):
----------------
(17) If this option is selected, the Employer must establish appropriate
procedures for implementation of the Plan's loan program.
PAGE 18A
C. SECTION 401(k) PLAN PROVISIONS:
1. SERVICE:
An Eligible Employee shall be required to fulfill the following
eligibility service requirements in order to participate in the Plan
through a salary reduction agreement and for purposes of receiving an
allocation of Employer Matching Contributions:
a. /X/ The Employee must complete 1 MONTH of Service (not more
than 1 year) to be a Participant for purposes of receiving
allocations of Employer Matching Contributions.
b. /X/ The Employee must complete 1 MONTH of Service (not more than
1 year) to be a Participant for purposes of entering into a
Salary Reduction Agreement and having Employee Before Tax
Contributions or Employee After Tax Contributions
contributed to the Plan on the Employee's behalf.
2. EMPLOYEE SALARY DEFERRALS:
a. /X/ Participants shall be entitled to enter into a Salary
Reduction Agreement providing for Before Tax Contributions
to be made to the Plan.
i The minimum Before Tax Contribution shall be 1% of the
Participant's Compensation.
ii The maximum Before Tax Contribution shall be 15% of
the Participant's Compensation.
b. /X/ Participants shall be entitled to enter into a Salary
Reduction Agreement providing for After Tax Contributions to
be made to the Plan.
i The minimum After Tax Contribution shall be 1% of the
Participants Compensation.
ii The maximum After Tax Contribution shall be 12% of the
Participant's Compensation.
iii /X/ If selected, notwithstanding the above, a
Participant shall not be able to enter into a
Salary Reduction Agreement providing for After
Tax Contributions to be made to the Plan unless
the Participant has entered into a Salary
Reduction Agreement that provides for Before Tax
Contributions to be made to the Plan in an
amount of at least 3% of the Participant's
Compensation.
PAGE 19
c. / / If selected, a Participant shall be entitled to enter into a
Salary Reduction Agreement providing that any extraordinary
item of compensation, not yet payable (including bonuses), be
withheld from the Participant's Compensation and contributed
to the Plan as either a Before Tax Contribution, or After Tax
Contribution (provided such contributions are authorized
above, and to the extent that such contribution, when
aggregated with either the Participants other Before Tax
Contributions or After Tax Contributions do not exceed the
limitations specified above, on an annual basis).
3. CONTRIBUTION CHANGES:
a. Participants may increase or decrease the amount of contributions
made to the Plan pursuant to a Salary Reduction Agreement once
each:
i / / Plan Year
ii / / Semi-annual period, based on the Plan Year
iii / / Quarter, based on the Plan Year
iv /X/ Month
v / / Other, as specified below (provided that it is at least
once per year):
________
b. Claims for returns of Excess Before Tax Contributions for the
Participant's preceding taxable year must be made in writing, and
submitted to the Committee by MARCH 15 (specify a date between
March 1 and April 15).(18)
4. EMPLOYER MATCHING CONTRIBUTIONS(19):
a. MANDATORY MATCHING CONTRIBUTIONS:
The Employer shall make contributions to the Plan, in an amount
as specified below:
i /X/ An amount, equal to 50% of each Participant's Before Tax
Contributions, however, no match shall be made on
Participant's Before Tax Contributions in excess of 3%
(or $___) of the Participant's Compensation.
ii / / An amount, equal to __% of each Participant's After Tax
Contributions, but not to exceed __% of the
Participant's Compensation, or $_____.
----------------
(18) The date specified is for the refund of amount deferred in excess of the
Code Section 402(g) limit (the $7,000 limit) for the Participant's taxable
year.
(19) The Employer shall have the right to designate all, or any portion of
Employer Matching Contributions as Qualified Matching Contributions, which
shall then be subject to the same vesting, distribution, and withdrawal
restrictions as Before Tax Contributions.
PAGE 20
iii / / An amount, equal to ___% of each Participant's
contributions made pursuant to a Salary Reduction
Agreement (including both Before Tax Contributions and
After Tax Contributions), but only if the Participant
has entered into a Salary Reduction Agreement providing
for Before Tax Contributions of at least ___% of the
Participant's Compensation, but not to exceed ___% of
the Participant's Compensation, or $_____.
iv / / An amount equal to the sum of the following:
(a) ____% of the first ____% of the Participant's
Compensation deferred pursuant to a Salary
Reduction Agreement; plus,
(b) ____% of the next ____% of the Participant's
Compensation deferred pursuant to a Salary
Reduction Agreement; plus,
(c) ____% of the next ____% of the Participant's
Compensation deferred pursuant to a Salary
Reduction Agreement, but not to exceed _% of
the Participant's Compensation, or $_____.
v / / An amount equal to $_____, for each Participant who
enters into a Salary Reduction Agreement providing for
/ / Before Tax Contributions, / / After Tax
Contributions, or / / either Before Tax Contributions or
After Tax Contributions (or a combination of both) equal
to or exceeding ____% of the Participant's Compensation.
Such contributions shall be made and allocated:
(a) / / only during the first Plan Year the Plan is in
effect, or if a restatement, for the first Plan
Year beginning with, or containing the
restatement Effective Date.
(b) / / each Plan Year that a Participant has in force
a Salary Reduction Agreement meeting the
criteria specified above.
(c) / / during the first Plan Year that the Participant
participates through a Salary Reduction
Agreement meeting the criteria specified above.
b. DISCRETIONARY MATCHING CONTRIBUTIONS:
/ / The Employer shall make contributions to the Plan, in an
amount determined by resolution of the Board of Directors on
an annual basis. The Board resolution shall provide for the
percentage and/or
PAGE 21
amount of Before Tax Contributions and/or After Tax
Contributions to be matched and the maximum percentage
and/or amount of Before Tax Contributions and/or After Tax
Contributions eligible for matching.
c. ALLOCATION OF MATCHING CONTRIBUTIONS:
Employer Matching Contributions shall be allocated pursuant to
the terms of the Basic Plan Document, notwithstanding the
foregoing:
i / / A Participant who terminates before the end of the period
for which contributions are allocated shall share in the
allocation of Employer Matching Contributions if
termination of employment was the result of (select all
that apply):
(a) / / retirement
(b) / / disability
(c) / / death
(d) / / other, as specified below:
____________
ii /X/ Employer Matching Contributions shall be allocated to the
accounts of Participants (select one):
(a) /X/ as of each pay period for which a contribution
was made pursuant to a Salary Reduction
Agreement.
(b) / / semi-monthly.
(c) / / as of the last day of the month preceding the
month in which the contribution was made.
(d) / / as of the last day of the Plan quarter
preceding the quarter in which the
contribution was made.
(e) / / as of the last day of the Plan year.
PAGE 22
iii /X/ If selected, the Employer may make Employer Matching
Contributions without regard to current or accumulated
Net Profits of the Employer for the taxable year ending
with, or within the Plan Year(20).
d. The percentage of a Participant's Employer Matching Contribution
Account(21) (attributable to Employer Matching Contributions) to
be vested in him or her upon termination of employment prior to
attainment of the Plan's Normal Retirement Date shall be(22):
COMPLETED YEARS OF SERVICE
1 2 3 4 5 6 7
------ ------ ------ ------ ------ ------ ------
i / / 100%
------ ------
ii / / 100%
------ ------ ------
iii / / 20% 40% 60% 80% 100%
------ ------ ------ ------ ------ ------
iv / / 20% 40% 60% 80% 100%
------ ------ ------ ------ ------ ------ ------
v / / 10% 20% 30% 40% 60% 80% 100%
------ ------ ------ ------ ------ ------ ------
vi / / 100%
------ ------ ------ ------ ------
vii / / 100%
------ ------ ------ ------ ------ ------ ------
vii /X/ Full and immediate vesting upon entry into the Plan
Notwithstanding anything to the contrary in the Plan, the amount inserted in the
blanks above shall not exceed the limits specified in Code Section 411(a)(2).
e. Notwithstanding the provisions of this Item C(4)(e) of the
Adoption Agreement, a Participant shall become fully vested in
his Participant's Employer Matching Contribution Account if(23):
i / / the Participant's job is eliminated without the
Participant being offered a comparable position
elsewhere with the Employer.
ii / / for such reason as is described below:
___________________________
----------------
(20) Net Profits will never be required for the contribution of Before Tax
Contributions, After Tax Contributions, Qualified Nonelective Contributions
or Qualified Matching Contributions.
(21) Notwithstanding anything in the
Adoption Agreement to the contrary, amounts
in a Participant's account attributable to Before Tax Contributions,
Qualified Nonelective Contributions, and Qualified Matching Contributions
shall be 100% vested and nonforfeitable at all time.
(22) Notwithstanding the selection made in this Item B(7)(b), a Participant
shall be fully vested in his or her Employer Contribution Accounts if the
Participant dies or becomes Disabled while in the employ of the Employer.
(23) The provisions of this section will be administered by the Employer on a
consistent and nondiscriminatory basis.
PAGE 23
f. CORRECTIVE CONTRIBUTIONS:
i /X/ If selected, the Employer shall be authorized to make
Qualified Matching Contributions, subject to the terms
of the Basic Plan Document, in an amount determined by
resolution of the Board of Directors on an annual basis.
ii / / If selected, the Employer shall be authorized to make
Qualified Nonelective Contributions, subject to the
terms of the Basic Plan Document, in an amount
determined by resolution of the Board of Directors on an
annual basis.
5. GAP EARNINGS:
/ / If selected, Gap Earnings, as defined in Section 3.2(G)(1) of the
Basic Plan Document, will be calculated for Excess Elective
Deferrals, Excess Contributions and Excess Aggregate
Contributions, and refunded to the Participant as provided for in
Article III of the Basic Plan Document.
6. FORFEITURES:
a. Forfeitures of amounts attributable to Employer Matching
Contributions shall be reallocated as of:
i / / the last day of the Plan Year in which the Forfeiture
occurred.
ii / / the last day of the Plan Year following the Plan Year
in which the Forfeiture occurred.
iii / / the last day of the Plan Year in which the Participant
suffering the Forfeiture has incurred the fifth
consecutive One Year Break in Service.
b. Forfeitures of Employer Matching Contributions shall be
reallocated as follows:
i / / Not applicable as Employer Matching Contributions are
always 100% vested and nonforfeitable.
ii / / Used first to pay the expenses of administering the
Plan, and then allocated pursuant to one of the
following two options:
iii / / Forfeitures shall be allocated to Participant's
accounts in the same manner as Employer Profit Sharing
Contributions, Employer Matching Contributions,
Qualified Nonelective Contributions or Qualified
Matching Contributions, in the discretion of the
Employer, for the year in which the Forfeiture arose.
PAGE 24
iv / / Forfeitures shall be applied to reduce the Employer
Profit Sharing Contributions, Employer Matching
Contributions, Qualified Nonelective Contributions or
Qualified Matching Contributions, in the discretion of
the Employer, for the Plan Year following the Plan Year
in which the Forfeiture arose.
c. Forfeitures of Excess Aggregate Contributions shall be:
i / / Applied to reduce Employer contributions for the Plan
Year in which the excess arose, but allocated as below,
to the extent the excess exceeds Employer contributions
for the Plan Year, or the Employer has already
contributed for such Plan Year.
ii / / Allocated after all other forfeitures under the Plan:
(a) / / to the Matching Contribution account of each
Non-highly Compensated Participant who made
Before Tax Contributions or After Tax
Contributions in the ratio which each such
Participant's Compensation for the Plan Year
bears to the total Compensation of all such
Participants for the Plan Year; or,
(b) / / to the Matching Contribution account of each
Non-highly Compensated Eligible Participant in
the ratio which each Eligible Participant's
Compensation for the Plan Year bears to the
total Compensation of all Eligible
Participants for the Plan Year.
7. IN-SERVICE DISTRIBUTIONS (SELECT AS MAY BE APPROPRIATE):
a. /X/ There shall be no in-service distribution of Participant
account balances derived from Before Tax Contributions
(including Qualified Nonelective Contributions and Qualified
Matching Contributions treated as Before Tax Contributions
under the terms of the Basic Plan Document), or Employer
Matching Contributions.
b. / / Participants may request an in-service distribution of their
account balance attributable to Employer Matching
Contributions, for the following reasons:
i / / For purposes of satisfying a financial hardship,
as determined in accordance with the uniform
nondiscriminatory policy of the Committee;
ii / / Attainment of age 59 1/2 by the Participant; or
PAGE 25
iii / / Attainment of the Plan's Normal Retirement Date
by the Participant.
c. / / Participants may request an in-service distribution of their
account balance attributable to Employee Before Tax
Contributions, for the following reasons:
i / / For purposes of satisfying a financial
hardship, as determined by the facts and
circumstances of an Employee's situation, in
accordance with the provisions of Section 3.9
of the Basic Plan Document;
ii / / For purposes of satisfying a financial
hardship, using the "safe harbor" provisions of
Section 3.9 of the Basic Plan Document.
iii / / Attainment of age 59 1/2 by the Participant; or
iv / / Attainment of the Plan's Normal Retirement Date
by the Participant.
PAGE 26
NOTICE: The adopting Employer may not rely on an opinion letter issued by the
National Office of the Internal Revenue Service as evidence that the Plan is
qualified under the provisions of Section 401 of the Internal Revenue Code. In
order to obtain reliance with respect to the Plan's qualification, the Employer
must apply to the Key District Office of the Internal Revenue Service for a
determination letter.
This
Adoption Agreement may only be used in conjunction with Basic Plan Document
# 05.
This Plan document may only be used under the express authority of KeyCorp, its
subsidiaries and affiliates, and is not effective as completed until executed by
a duly authorized officer of KeyCorp, one of its subsidiaries or affiliates, and
approved by KeyCorp's counsel.
KeyCorp, as sponsor, may amend or discontinue this prototype plan document upon
proper notification to all adopting Employers pursuant to Revenue Ruling 89-13.
Failure to properly fill out an Adoption Agreement may result in
disqualification of the Plan, and adverse tax consequences to the Employer and
Plan Participants.
This Plan is sponsored by:
KeyCorp, on behalf of its operating subsidiaries, banking and trust
company affiliates
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
(000) 000-0000
PAGE 27
IN WITNESS WHEREOF, the Employer and the Trustee, by their respective duly
authorized officers, have caused this Adoption Agreement to be executed on this
11th day of September 1996.
EMPLOYER:
-------------
By:
----------------------------------------------------
Title: Senior Vice President, Human Resources
-------------------------------------------------
TRUSTEE:
By:
----------------------------------------------------
Title: Vice President
-------------------------------------------------
and
By:
----------------------------------------------------
Title: Assistant Vice President
-------------------------------------------------
APPROVED ON BEHALF OF TRUSTEE:
Initials: Date: 9/11/96
------------- -------------
PAGE 28
INVESTMENT FUND DESIGNATION
XXXXXX LABORATORIES (the "Named Fiduciary"), as an independent fiduciary
with respect to the XXXXXX LABORATORIES ASHLAND UNION 401(k) (the "Plan"), an
employee pension benefit plan covered by the applicable provisions of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA") and its
employees who participate therein (the "Participants"), hereby designates the
following investment funds from among the investment fund options available for
adopting employers of the PRISM(R) PROTOTYPE RETIREMENT PLAN & TRUST (as defined
in Section 10.7 of the Plan), available for selection by Participants for the
investment of Plan assets held for their benefit:
(a) EB MaGIC FUND
(b) INCOME FUND OF AMERICA
(c) VICTORY DIVERSIFIED STOCK FUND
(d) GROWTH FUND OF AMERICA
(e)
(f)
(g)
(h)
/X/ In addition, if selected, an Employer Stock Fund will also be
available.
In making the selection of Investment Funds, the Named Fiduciary hereby confirms
and acknowledges that:
- The Named Fiduciary has had made available to it copies of the
prospectuses (to the extent required under applicable federal
securities law and regulation) for each investment fund available
for selection by adopting employers of the PRISM(R) PROTOTYPE
RETIREMENT PLAN & TRUST, and has received copies of each such
prospectus for the Investment Funds selected;
- The Named Fiduciary acknowledges that the Trustee of the Plan may
receive certain fees for services provide to, or on behalf of an
Investment Fund, or the sponsors or distributors thereof,
pursuant to plans of distribution adopted by the fund under the
provisions of Rule 12b-1 of the Investment Company Act of 1940,
and further acknowledges that (i) such fee, if paid, is
appropriate for services rendered to the fund, and when
aggregated with other fees for service payable to the Trustee
constitutes reasonable compensation for the Trustee's services to
the Plan; and (ii) the Plan will be able to redeem its interest
in any such Investment Fund on reasonably short notice without
penalty;
- The Named Fiduciary further acknowledges that it has selected the
Investment Funds on its determination, after due inquiry, that
the Investment Funds are appropriate vehicles for the investment
of Plan assets pursuant to the terms of the Plan, considering all
relevant facts and circumstances, including but not limited to
(i) the investment policy and philosophy of the Named Fiduciary
developed pursuant to ERISA Section 404; (ii) the ability of
Participants, using an appropriate mix of Investment Funds, to
diversify the investment of Plan assets held for their benefit;
and, (iii) the ability of Participants to, utilizing an ap-
PAGE 29
their account in the Plan with risk and return characteristics
within the normal range of risk and return characteristics for
individuals with similar investment backgrounds, experience and
expectations; and,
- The Named Fiduciary acknowledges that it has not relied on any
representations or recommendations from the Trustee or any of its
employees in selecting the Investment Funds.
The Trustee agrees to follow the Named Fiduciary's direction with respect to
offering the Investment Funds available for selection by the Participants in the
Plan for the investment of Plan assets held for their benefit:
IN WITNESS WHEREOF, the Employer, by its duly authorized representative,
has executed this document in connection with adoption of the Plan utilizing
the PRISM(R) PROTOTYPE RETIREMENT PLAN & TRUST documents, as provided by the
Trustee.
NAMED FIDUCIARY:
By:
----------------------------------
Title: Senior Vice President, Human Resources
---------------------------------------
Seen and accepted by the Trustee, who shall provide the Investment Funds
selected by the Employer pursuant to the terms of this document, and pursuant to
the Plan.
TRUSTEE:
By:
----------------------------------
Title: Assistant Vice President
--------------------------------
PAGE 30
ADDENDUM
To the extent necessary to satisfy the limitations of Code Section 415 for
any Participant, the annual addition which would otherwise be made on behalf
of the Participant under the Plan shall be reduced only after the
Participant's benefit is reduced under any and all qualified defined benefit
plans, and after the Participant's annual addition is reduced under any other
defined contribution plan. The Participant's annual addition under this Plan
shall be reduced, by reducing and refunding to the Participant, first, his or
her After Tax Contributions, then his or her Before Tax Contributions for the
limitation year. Any After Tax Contribution that is refunded will be adjusted
for income or loss pursuant to Regulation Section 1.401(m)-1(e)(3)(ii) and any
Before Tax Contribution that is refunded will be adjusted for income or loss
pursuant to Regulation Section 1.401(f)-1(f)(4)(ii). Any Employer Contribution
based upon such After Tax Contributions or Before Tax Contributions shall
also be reduced, and the amount by which the Employer Contribution is reduced
will remain part of the assets of the Trust and allocated to the
Participants' Employer Contribution Accounts in the following year at the
same time and in the same manner as Employer Contributions are allocated
under Section C.4. If further adjustments are required, any Qualified
Nonelective Employer Contribution for the Participants' benefit shall be
reduced and the amount by which it is reduced will remain part of the Trust
and allocated to the Participants' Employer Contribution Accounts in the
following year at the same time and in the same manner as Employer
Contributions are allocated under Section C.4. "Qualified Nonelective
Employer Contribution" for purposes of this paragraph, means a contribution
(other than an Employer Matching Contribution) made for the benefit of a
Participant by the Employer in its discretion.
If, as the result of a reasonable error in estimating a Participant's
Compensation for a Plan Year or limitation year or under such other facts or
circumstances as may be permitted under regulation or by the Internal Revenue
Service, the annual addition under the Plan for a Participant would cause the
Code Section 415 limitations for a limitation year to be exceeded, the excess
amounts in the Participant's Accounts will be used to reduce Employer
Contributions for the next limitation year (and succeeding limitation years,
as necessary) for that Participant if such Participant is covered by the Plan
as of the end of the limitation year. However, if the Participant is not
covered by the Plan as of the end of the limitation year, the excess amounts
will not be distributed to Participants or former Participants, but will be
held unallocated for that limitation year in a suspense account. If the
suspense account is in existence at any time during any subsequent limitation
year, all amounts in the suspense account will be allocated to the Accounts
of all Participants in proportion to their relative earnings for the
subsequent limitation year, before any other contributions which would be
part of an annual addition are made to the Plan for the subsequent limitation
year. No investment gains or losses will be allocated to any suspense
accounts described in this paragraph.
Notwithstanding Section 6.6(A)(2)(c) of the Basic Plan Document, "Compensation"
for purposes of this Addendum, shall mean the Participant's wages, salaries,
fees for professional services and other amounts received during the Plan year
(without regard to whether or not an amount is paid in cash) for personal
services actually rendered in the course of employment with the Employer to the
extent that the amounts are includable in gross income, including but not
limited to commissions paid to salespeople, compensation for services on the
basis of a percentage of profits, tips, bonuses, fringe benefits,
reimbursements, and expense allowances, but not including those items excludable
from the definition of compensation under Regulation section 1.415-2(d)(2)
(including amounts that are excludable from gross income under Code sections 125
or 401(k)).
19. TRUST INVESTMENTS IN SHARES OF COMMON STOCK OF XXXXXX LABORATORIES. Trust
investments pursuant to this Section 19 shall be made only in securities
constituting "qualifying employer securities" within the meaning of Section
407(d)(5) of ERISA. Trust investments in such securities of the Employer
shall be subject to the following terms and conditions.
(a) ACQUISITION LIMIT. Pursuant to the Plan, the Trust may be invested in
Xxxxxx Laboratories common stock ("Abbott Stock") to the extent
necessary to comply with investment directions of Plan Participants
under the Plan.
(b) FIDUCIARY DUTIES OF NAMED FIDUCIARIES. The Xxxxxx Stock Committee as
named fiduciaries, shall continually monitor the suitability of
acquiring and holding Xxxxxx Stock under the fiduciary duty rules of
Section 404(a)(1) of ERISA (as modified by Section 404(a)(2) of
ERISA). The Trustee shall not be liable for any loss, or by reason of
any breach, that arises from the direction of the Abbot Stock
Committee with respect to the acquisition and holding of Xxxxxx Stock,
unless it is clear on the face of the direction that the actions to be
taken under the direction would be prohibited under ERISA. The Xxxxxx
Stock Committee shall be responsible for determining whether, under
the circumstances prevailing at a given time, their fiduciary duty to
Plan Participants and beneficiaries under the Plan and ERISA requires
that the Employer follow the advice of independent counsel as to the
voting and tender or retention of Abbott Stock. The Xxxxxx
Laboratories Employee Benefit Board of Review (the "Board of Review")
shall certify to the Trustee the names and specimen signatures of the
Xxxxxx Stock Committee. The Board of Review shall give prompt notice
to the Trustee of changes in the Xxxxxx Stock Committee, and until
such notice is received by the Trustee, the Trustee shall be fully
protected in assuming that the membership of the Xxxxxx Stock
Committee is unchanged and its members are acting accordingly. The
Xxxxxx Stock Committee may certify to the Trustee the names of persons
authorized to act for it in relation to the Trustee and may designate
a person, corporation or other entity, whether or not affiliated with
the Employer, to so act. Whenever the Trustee is required or
authorized to take any action hereunder pursuant to any written
direction or determination of the Xxxxxx Stock Committee, such
direction or determination shall be sufficient protection to the
Trustee if contained in a writing signed by any one or more of the
persons authorized to execute documents on behalf of the Xxxxxx Stock
Committee, as the case may be. A majority of the members of the Xxxxxx
Stock Committee may act by meeting or by writing signed
18B
without meeting. The Trustee shall act, and shall be fully protected
in acting, in accordance with such orders, requests and instructions
of the Abbott Stock Committee. The Abbott Stock Committee shall
consist of the then acting Co-Trustees of the Xxxxxx Laboratories
Stock Retirement Trust.
Any member of the Abbott Stock Committee may resign at any time upon
sixty (60) days' written notice to the Board of Review, and the Board
of Review may remove any of the members of the Xxxxxx Stock Committee
at any time upon sixty (60) days' written notice to that individual;
provided, however, that the parties may by written instrument waive
such notice. If any of the members of the Xxxxxx Stock Committee shall
resign, be removed or for any other reason cease to be a member of the
Xxxxxx Stock Committee, the Board of Review shall appoint a successor
member. Subject to the foregoing provisions, any resignation or
removal of a member of the Xxxxxx Stock Committee or appointment of a
new member of the Xxxxxx Stock Committee shall be by instrument in
writing and shall become effective on the date therein specified. Any
successor member of the Xxxxxx Stock Committee shall have the same
powers and duties as the succeed member of the Xxxxxx Stock Committee,
subject to such changes as the Board of Review may then determine.
(c) EXECUTION OF PURCHASES AND SALES. To implement transactions regarding
investments in Employer Stock, including purchases, redemptions and
exchanges, the Trustee shall purchase or sell Employer Stock on the
open market, as the case may be, as soon as practicable following
receipt by the Trustee in good order all information and documentation
necessary to effect such purchase or sale. However, the Trustee may
accumulate all like purchases into a single batch and may accumulate
all like sales as a result of receiving instructions for redemptions
and exchanges out of Xxxxxx Stock into a single batch, but shall not
be required to do so.
The Trustee may purchase or sell Xxxxxx Stock from or to the Employer
if the purchase or sale is for no more than adequate consideration
(within the meaning of Section 3(18) of ERISA) and no commission is
charged. To the extent that Employer contributions under the Plan are
to be invested in Xxxxxx Stock, the Employer may transfer Xxxxxx Stock
to the Trust in lieu of cash. The number of shares so transferred
shall be determined by dividing the amount of the contribution by the
closing price of Xxxxxx Stock on any national securities exchange on
the trading day immediately preceding the date as of which the
contribution is made.
18C
The Trustee and the Employer may, in an appendix to this Section 19,
or in a separate services agreement, agree upon such prescribed dates
for purchases and sales of Xxxxxx Stock and such rules and conventions
in connection with such purchases and sales as they may find mutually
acceptable.
(d) SECURITIES LAW REPORTS. The Employer shall be responsible for filing
all reports required under federal or state securities laws with
respect to the Trust's ownership of Xxxxxx Stock, including, without
limitation, any reports required under Section 13 or 16 of the
Securities Exchange Act of 1934, and shall immediately notify the
Trustee in writing of any requirement to stop purchases or sales of
Xxxxxx Stock pending the filing of any report. The Trustee shall
provide to the Employer such information on the Trust's ownership of
Xxxxxx Stock as the Employer may reasonably request in order to comply
with federal or state securities laws.
(e) VOTING OF SHARES. Notwithstanding Section 10.8 of the Basic Plan
Document, the provisions of this Section 19 shall govern the voting of
Xxxxxx Stock. When the issuer of Xxxxxx Stock files preliminary proxy
solicitation materials with the Securities and Exchange Commission
(or final proxy solicitation materials where no preliminary proxy
solicitation materials are filed), the Employer shall cause a copy of
all the materials to be simultaneously sent to the Trustee, and the
Trustee shall prepare a voting instruction form on behalf of the
Xxxxxx Stock Committee based upon these materials. The Xxxxxx Stock
Committee shall vote or not vote shares of Xxxxxx Stock; provided,
however, in the event that the Xxxxxx Stock Committee in its sole
judgment determines that any matter that is to be voted on at any
general or special meeting of the shareholders of the Employer could
materially affect the interests of Plan Participants, the Xxxxxx Stock
Committee shall promptly distribute copies of such proxy solicitation
materials for such meeting to the Plan Participants and shall solicit
the voting directions of Plan Participants on such matter.
(In those cases where the Xxxxxx Stock Committee determines that any
matter to be voted on could materially affect the interests of the
Plan Participants, the Xxxxxx Stock Committee shall vote or not vote
shares of Xxxxxx Stock credited to Plan Participants' accounts as
directed by such Plan Participants. Such directions shall be
communicated in writing or by facsimile or similar means and shall be
held in confidence by the Trustee and the Xxxxxx Stock Committee and
not divulged to the Employer, or any officer or employee thereof, or
any other person (other than the members of the Xxxxxx Stock Committee
itself), or any other person except to the extent necessary for the
Xxxxxx
18D
Stock Committee to act on the directions. The Xxxxxx Stock Committee
shall vote those shares of Xxxxxx Stock not credited to Plan
Participants' accounts, and those shares of Xxxxxx Stock credited to
the accounts of Plan Participants for which no voting directions are
received in the same proportion on each issue as they vote those
shares credited to Plan Participants' accounts for which they
received voting directions from Plan Participants.
(f) TENDER OFFERS. Upon commencement of a tender offer for any Xxxxxx
Stock, the Employer shall notify each Plan Participant, and use its
best efforts to timely distribute or cause to be distributed to Plan
Participants the same information that is distributed to shareholders
of the issuer of Xxxxxx Stock in connection with the tender offer, and
after consulting with the Xxxxxx Stock Committee, shall provide at the
Employer's expense a means by which Plan Participants may direct the
Xxxxxx Stock Committee whether or not to tender the Xxxxxx Stock
credited to their accounts (whether or not vested). The Employer will
provide to the Trustee and the Xxxxxx Stock Committee a copy of any
material provided to Plan Participants and shall certify to the
Trustee and the Xxxxxx Stock Committee that the materials have been
mailed or otherwise sent to Plan Participants.
Each Plan Participant shall have the right to direct the Xxxxxx Stock
Committee to tender or not tender some or all of the shares of Xxxxxx
Stock credited to the Plan Participant's accounts. Directions from a
Plan Participant to the Xxxxxx Stock Committee concerning the tender
of Xxxxxx Stock shall be communicated in writing or by facsimile or
such similar means and shall be held in confidence by the Trustee and
the Xxxxxx Stock Committee and not divulged to the Employer, or any
officer or employee thereof (other than the members of the Xxxxxx
Stock Committee itself), or any other person except to the extent
necessary for the Xxxxxx Stock Committee to act on the directions. The
Xxxxxx Stock Committee shall tender or not tender shares of Xxxxxx
Stock as directed by the Plan Participant. The Xxxxxx Stock Committee
shall not tender shares of Xxxxxx Stock credited to a Plan
Participant's accounts for which they have received no directions from
the Plan Participant.
The Xxxxxx Stock Committee shall tender that number of shares of
Xxxxxx Stock not credited to Plan Participants' accounts determined by
multiplying the total number of such shares by a fraction, of which
the numerator is the number of shares of Xxxxxx Stock credited to Plan
Participants' accounts for which the Xxxxxx Stock Committee has
received directions from Plan Participants to tender (which directions
18E
have not been withdrawn as of the date of this determination), and of
which the denominator is the total number of shares of Xxxxxx Stock
credited to Plan Participants' accounts.
A Plan Participant who has directed the Xxxxxx Stock Committee to
tender some or all of the shares of Xxxxxx Xxxxx credited to his
accounts may, at any time before the tender offer withdrawal date,
direct the Xxxxxx Stock Committee to withdraw the directed number of
shares from the tender offer before the tender offer withdrawal
deadline. A Plan Participant shall not be limited as to the number of
directions to tender or withdraw that he may give to the Xxxxxx Stock
Committee.
A direction by a Plan Participant to the Xxxxxx Stock Committee to
tender shares of Xxxxxx Xxxxx credited to his accounts shall not be
considered a written election under the Plan by a Plan Participant to
withdraw or have distributed to him any or all of such shares. The
Xxxxxx Stock Committee shall credit to each account of the Plan
Participant from which the tendered shares were taken the proceeds
received by the Trust in exchange for the shares of Xxxxxx Stock
tendered from that account. Pending receipt of directions from the
Plan Participant as to the investment of the proceeds of the tendered
shares, the Trustee shall invest the proceeds as the Xxxxxx Stock
Committee directs or if no directions are provided, the Trustee shall
invest the proceeds as set forth in the Basic Plan Document.
18F
03/24/95 Basic Plan Document No. 05
------------------------------------
PRISM(R)
PROTOTYPE RETIREMENT
PLAN AND TRUST
------------------------------------
PRISM(R) PROTOTYPE RETIREMENT PLAN AND TRUST
TABLE OF CONTENTS
ARTICLE PAGE
I DEFINITIONS ..........................................................................1
1.1 DEFINITIONS .....................................................................1
1.2 GENDER AND NUMBER ...............................................................10
1.3 CONTROL OF TRADES OR BUSINESSES BY OWNER-EMPLOYEE ...............................10
II ELIGIBILITY AND VESTING ..............................................................11
2.1 ELIGIBILITY......................................................................11
2.2 VESTING .........................................................................13
III CODE 401(k) AND CODE 401(m) ARRANGEMENTS .............................................14
3.1 PROVISION RELATING TO BOTH BEFORE TAX CONTRIBUTIONS AND AFTER
TAX CONTRIBUTIONS...........................................................14
3.2 BEFORE TAX CONTRIBUTIONS (ELECTIVE DEFERRALS) ...................................18
3.3 AFTER TAX CONTRIBUTIONS (EMPLOYEE CONTRIBUTIONS) ................................22
3.4 EMPLOYER CONTRIBUTIONS ..........................................................23
3.5 LIMITATIONS ON AFTER TAX CONTRIBUTIONS (EMPLOYEE CONTRIBUTIONS)
AND MATCHING CONTRIBUTIONS..................................................25
3.6 NET PROFITS NOT REQUIRED IF SO ELECTED IN ADOPTION AGREEMENT ....................27
3.7 FORM, PAYMENT AND ALLOCATION OF CONTRIBUTIONS....................................27
3.8 DISTRIBUTION REQUIREMENTS FOR BEFORE TAX CONTRIBUTION ACCOUNT ...................28
3.9 HARDSHIP DISTRIBUTION ...........................................................28
3.10 WITHDRAWAL OF AFTER TAX CONTRIBUTIONS ...........................................29
3.11 WITHDRAWAL OF MATCHING CONTRIBUTIONS ............................................30
IV OTHER CONTRIBUTIONS ..................................................................31
4.1 EMPLOYER CONTRIBUTIONS ...........................................................31
4.2 SEPARATE ACCOUNTS ................................................................31
4.3 VESTING ..........................................................................31
4.4 LIMITATION ON EMPLOYER CONTRIBUTIONS .............................................31
4.5 EMPLOYEE CONTRIBUTIONS ...........................................................31
4.6 EXCLUSIVE BENEFIT ................................................................32
i
4.7 FORM, PAYMENT AND ALLOCATION OF CONTRIBUTIONS ....................................33
4.8 SAFE HARBOR ALLOCATION ...........................................................33
V PERIOD OF PARTICIPATION...............................................................33
5.1 TERMINATION DATES.................................................................33
5.2 RESTRICTED PARTICIPATION..........................................................34
VI ACCOUNTING............................................................................34
6.1 ACCOUNTS ESTABLISHED .............................................................34
6.2 EMPLOYER CONTRIBUTIONS CONSIDERED MADE ON LAST DAY OF
PLAN YEAR....................................................................35
6.3 ACCOUNTING STEPS..................................................................35
6.4 ALLOCATION OF EMPLOYER CONTRIBUTIONS..............................................35
6.5 ALLOCATION OF FORFEITURES.........................................................36
6.6 LIMITATION ON ALLOCATIONS.........................................................36
6.7 REPORTS TO PARTICIPANTS...........................................................43
VII PAYMENT OF ACCOUNT BALANCES ..........................................................43
7.1 TERMINATION OF EMPLOYMENT UPON DISABILITY OR DEATH................................43
7.2 TIMING FOR DETERMINING ACCOUNT BALANCE UPON TERMINATION
OF EMPLOYMENT PRIOR TO RETIREMENT, DISABILITY OR DEATH ......................44
7.3 VESTING ON DISTRIBUTION BEFORE BREAK-IN-SERVICE; CASH-OUTS .......................44
7.4 RESTRICTIONS ON IMMEDIATE DISTRIBUTIONS...........................................45
7.5 COMMENCEMENT OF BENEFITS..........................................................46
7.6 XXXXXX AND MODES OF DISTRIBUTION .................................................46
7.7 DESIGNATION OF BENEFICIARY........................................................52
7.8 OPTIONAL FORMS OF BENEFIT ........................................................53
7.9 DISTRIBUTION UPON DISABILITY......................................................53
7.10 JOINT AND SURVIVOR ANNUITY REQUIREMENTS..........................................53
7.11 DISTRIBUTIONS TO QUALIFIED PLANS.................................................59
7.12 PROFIT SHARING PLANS AND 401(k) PROFIT SHARING PLANS ONLY -
WITHDRAWAL OF EMPLOYER CONTRIBUTIONS .......................................59
7.13 PROHIBITION AGAINST ALIENATION...................................................59
7.14 MISSING PARTICIPANT OR BENEFICIARY...............................................60
7.15 LIMITATION ON CERTAIN DISTRIBUTIONS..............................................60
7.16 FORM OF DISTRIBUTIONS AND WITHDRAWALS ...........................................60
VIII DIRECT ROLLOVERS .....................................................................61
8.1 GENERAL .........................................................................61
8.2 DEFINITIONS .....................................................................61
ii
IX TOP HEAVY PROVISIONS ................................................................62
9.1 USE OF TOP-HEAVY PROVISIONS .....................................................62
9.2 TOP-HEAVY DEFINITIONS ...........................................................62
9.3 MINIMUM ALLOCATION ..............................................................64
9.4 MINIMUM VESTING SCHEDULES .......................................................65
X TRUSTEE .............................................................................65
10.1 TRUSTEE ........................................................................65
10.2 RECORDS AND ACCOUNTS OF TRUSTEE ................................................66
10.3 REPORTS TO EMPLOYER ............................................................66
10.4 POWERS OF TRUSTEE ..............................................................66
10.5 TRUSTEE'S FEES AND EXPENSES ....................................................68
10.6 TRUSTEE MAY RESIGN OR BE REMOVED ...............................................68
10.7 SEPARATE INVESTMENT FUNDS ......................................................69
10.8 REGISTRATION, DISTRIBUTION AND VOTING OF EMPLOYER STOCK AND
PROCEDURES REGARDING TENDER OFFERS .........................................73
10.9 VALUATION OF INVESTMENT FUNDS AND ACCOUNTS .....................................76
XI ADMINISTRATION ......................................................................77
11.1 COMMITTEE MEMBERSHIP ...........................................................77
11.2 POWERS AND DUTIES OF COMMITTEE .................................................77
11.3 ACTIONS OF THE COMMITTEE .......................................................78
11.4 RESIGNATION, REMOVAL AND DESIGNATION OF SUCCESSORS .............................78
11.5 COMMITTEE REVIEW ...............................................................78
11.6 RECORDS ........................................................................79
11.7 COMPENSATION ...................................................................79
11.8 DESIGNATION OF NAMED FIDUCIARIES AND ALLOCATION OF
RESPONSIBILITY AMONG FIDUCIARIES ...........................................79
11.9 NOTICE BY COMMITTEE OR EMPLOYER ................................................80
11.10 LOANS TO PARTICIPANTS .........................................................80
XII FAILURE TO ATTAIN OR RETAIN QUALIFIED STATUS ........................................83
12.1 FAILURE TO QUALIFY AS A PROTOTYPE ..............................................83
12.2 FAILURE OF EMPLOYER TO ATTAIN OR RETAIN QUALIFICATION ..........................83
XIII MISCELLANEOUS .......................................................................83
13.1 EMPLOYER ACTION ................................................................83
13.2 NO GUARANTEE OF INTERESTS ......................................................83
13.3 EMPLOYMENT RIGHTS ..............................................................83
13.4 INTERPRETATIONS AND ADJUSTMENTS ................................................83
iii
13.5 UNIFORM RULES ..................................................................83
13.6 EVIDENCE .......................................................................83
13.7 WAIVER OF NOTICE ...............................................................84
13.8 CONTROLLING LAW ................................................................84
13.9 TAX EXEMPTION OF TRUST .........................................................84
13.10 COUNTERPARTS ..................................................................84
13.11 ANNUAL STATEMENT OF ACCOUNT ...................................................84
13.12 NO DUTY TO INQUIRE ............................................................84
13.13 INVALIDITY ....................................................................84
13.14 TITLES ........................................................................84
13.15 NO DUTY OF TRUSTEE TO COLLECT CONTRIBUTIONS ...................................84
13.16 TRUSTEE DISTRIBUTES BY COMMITTEE DIRECTION ....................................84
XIV AMENDMENT OR TERMINATION ............................................................84
14.1 AMENDMENT BY THE SPONSOR .......................................................84
14.2 AMENDMENT BY ADOPTING EMPLOYER .................................................85
14.3 VESTING - PLAN TERMINATION .....................................................85
14.4 VESTING - COMPLETE DISCONTINUANCE OF CONTRIBUTIONS .............................85
14.5 PLAN MERGER - MAINTENANCE OF BENEFIT ...........................................85
14.6 DIRECT TRANSFER ................................................................85
14.7 TERMINATION OF PARTICIPATION BY EMPLOYER .......................................86
14.8 NOTICE OF AMENDMENT, TERMINATION OR PARTIAL TERMINATION ........................86
14.9 SUBSTITUTION OF TRUSTEE ........................................................86
XV DISCHARGE OF DUTIES BY FIDUCIARIES ..................................................86
15.1 DISCHARGE OF DUTIES ............................................................86
XVI AMENDMENT AND CONTINUATION OF ORIGINAL PLAN .........................................87
16.1 AMENDMENT AND CONTINUATION .....................................................87
iv
PRISM(R) PR0TOTYPE RETIREMENT PLAN AND TRUST
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. Unless the context indicates otherwise, the following terms,
when used herein with initial capital letters, shall have the meanings set
forth below:
(A) ACCOUNTING DATE: The date which is the last business day of each month
of the Employer's Plan Year or such other date as may be agreed upon
between the Employer and the Trustee, but only if the Employer has
specifically requested the Trustee to prepare an accounting on or
before such date. Notwithstanding the foregoing, the Trustee shall
value the assets held in the Trust on each business day that the
Trustee and the New York Stock Exchange are open for business.
(B) ADOPTION AGREEMENT: The Adoption Agreement adopting this Plan which
has been executed by the Employer and accepted by the Trustee,
including any amendment thereof, which is incorporated herein by
reference.
(C) BASIC PLAN DOCUMENT: This document, which, in connection with the
Adoption Agreement forms the Plan.
(D) BENEFICIARY: The person or persons to whom a deceased Participant's
benefits are payable under the Plan.
(E) BREAK IN SERVICE: A 12-consecutive month period during which the
Participant does not complete more than one-half of the Hours of
Service with the Employer required for a Year of Service, as elected
in the Adoption Agreement. For eligibility purposes, the initial
12-consecutive month period is the period beginning on the Employees
date of hire. Subsequent 12-consecutive month periods for eligibility
purposes will be either the period ending on the annual anniversary of
the Employee's date of hire or the Plan Year, as selected in the
Adoption Agreement. For all other purposes, the 12-consecutive month
period shall be the Plan Year, or other computation period as selected
in the Adoption Agreement. If the elapsed time method of crediting
service is elected in the Adoption Agreement, "Break In Service" will
mean a Period of Severance of at least 12 consecutive months.
(F) CODE: The Internal Revenue Code of 1986, and amendments thereto.
(G) COMMITTEE: The Committee provided for in Article XI, which shall be a
Named Fiduciary as defined in the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"). To the extent that the Employer
does not appoint a Committee, the Employer shall have the duty of the
day to day administration of the Plan and shall be the Named Fiduciary
for that purpose.
(H) COMPENSATION: Compensation shall have the following various
definitions, as may be appropriate within the context of the Plan:
(1) Compensation as that term is defined in Section 6.6(A) of the
Plan. For any Self-Employed Individual covered under the Plan,
Compensation will mean Earned Income. Compensation shall include
only that compensation which is actually paid to the Participant
during the determination period. Except as provided elsewhere in
this Plan, the determination period shall be the period elected
by the Employer in the Adoption Agreement. If the Employer makes
no election, the determination period shall be the Plan Year. For
purposes of allocations of Employer Profit Sharing or Matching
Contributions, the definition of Compensation in Section
6.6(A)(2)(a) shall be used, as modified in the Adoption
Agreement.
Notwithstanding the above, if elected by the Employer in the
Adoption Agreement, Compensation for allocation purposes shall
include any amount which is contributed by the Employer pursuant
to a salary reduction agreement and which is not includible in
the gross income of the employee under Sections 125, 402(e)(3),
402(h)(1)(B) or 403(b) of the Code.
(2) For years beginning after December 31, 1988, and prior to January
1, 1994, the annual Compensation of each Participant taken into
account for determining all benefits provided under the Plan for
any determination period shall not exceed $200,000. This
limitation shall be adjusted by the Secretary at the same time
and in the same manner as under Section 415(d) of the Code except
that the dollar increase in effect on January 1 of any calendar
year is effective for plan years beginning in such calendar year
and the first adjustment to the $200,000 limitation is effective
on January 1, 1990. After December 31, 1993, the annual
Compensation of each Participant taken into account for
determining all benefits provided under the Plan for any
determination period shall not exceed $150,000, or such other
lesser amount as may be specified in the Adoption Agreement. This
limitation shall be adjusted by the Secretary at the same time
and in the same manner as under Section 415(d) of the Code. If a
Plan determines Compensation on a period of time that contains
fewer than 12 calendar months, then the annual Compensation limit
is an amount equal to the annual Compensation limit for the
calendar year in which the Compensation period begins multiplied
by a ratio obtained by dividing the number of full months in the
period by 12.
In determining the Compensation of a Participant for purposes of
this limitation, the rules of Section 414(q)(6) of the Code shall
apply, except in applying such rules, the term "family" shall
include only the Spouse of the Participant and any lineal
descendants of the Participant who have not attained age 19
before the close of the year. If, as a result of the application
of such rules the adjusted annual compensation limitation is
exceeded, then (except for purposes of determining the portion of
Compensation up to the integration level if this Plan provides
for permitted disparity), the limitation shall be prorated among
the affected individuals in proportion to each such individual's
Compensation as determined under this Section prior to the
application of this limitation.
If compensation for any prior determination period is taken into
account in determining an Employee's allocations or benefits for
the current determination period, the compensation for such prior
year is subject to the applicable annual compen-
PAGE 2
sation limit in effect for that prior year. For this purpose, for
years beginning before January 1, 1990, the applicable
compensation limit is $200,000. In addition, in determining
allocations in plan years beginning on or after January 1, 1994,
the annual compensation limit in effect for determination periods
beginning before that date is $150,000.
(I) DISABILITY: The inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental
impairment 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 twelve (12) months. The permanence and degree of such impairment
shall be supported by medical evidence. The Employer shall determine
the existence of a Disability based on its current disability policy,
applied on a uniform and nondiscriminatory basis.
(J) EARNED INCOME: The net earnings from self-employment in the trade or
business with respect to which the Plan is established, for which
personal services of the individual are a material income-producing
factor. Net earnings will be determined without regard to items not
included in gross income and the deductions allocable to such items.
Net earnings are reduced by contributions by the Employer to a
qualified Plan to the extent deductible under Section 404 of the Code.
Net earnings shall be determined with regard to the deduction allowed
to the taxpayer by Section 164(f) of the Code for taxable years
beginning after December 31, 1989.
(K) EARLY RETIREMENT DATE: The date specified in the Adoption Agreement at
which a participating Employee may receive an early retirement
benefit.
(L) EFFECTIVE DATE: The date specified in the Adoption Agreement which
shall be the effective date of the provisions of this Plan, unless
modified in Item B(18) of the Adoption Agreement. If the Plan is a
restatement of an existing Plan, the original effective date of the
Plan shall be as specified in the Adoption Agreement.
(M) ELIGIBLE EMPLOYEE: Any Employee who is eligible to receive an Employer
contribution (including forfeitures), as defined in Item B(6) of the
Adoption Agreement.
(N) ELIGIBILITY COMPUTATION PERIOD: For purposes of determining Years of
Service and Breaks in Service for purposes of eligibility, the initial
Eligibility Computation Period is the 12-consecutive month period
beginning on the Employee's Employment Commencement Date.
(1) For plans in which the Eligibility Computation Periods commence
on the 12-consecutive month anniversary of the Employee's
Employment Commencement Date, the succeeding 12-consecutive month
periods commence with the first anniversary of the Employee's
Employment Commencement Date.
(2) For plans in which the Eligibility Computation Period shifts to
the Plan Year, the succeeding 12-consecutive month periods
commence with the first Plan Year which commences prior to the
first anniversary of the Employee's Employment Commencement Date
regardless of whether the Employee is entitled to be credited
with number of Hours of Service specified in the Adoption
Agreement during the
PAGE 3
initial Eligibility Computation Period. An Employee who is
credited with number of Hours of Service specified in the
Adoption Agreement in both the initial Eligibility Computation
Period and the first Plan Year which commences prior to the first
anniversary of the Employee's initial Eligibility Computation
Period will be credited with two Years of Service for purposes of
eligibility to participate.
Years of Service and Breaks in Service will be measured on the
same Eligibility Computation Period.
(3) Notwithstanding any other provisions of this section, if the
elapsed time method of crediting service is elected in the
Adoption Agreement for purposes of eligibility, an Employee will
receive credit for the aggregate of all time periods completed
(as may be elected in the Adoption Agreement) beginning with the
Employee's Employment Commencement Date or Reemployment
Commencement Date and ending on the date a Break In Service
begins. The Employee will receive credit for any Period of
Severance of less than 12 consecutive months.
(O) EMPLOYEE: Any employee, including any Self Employed Individual, of the
Employer maintaining the Plan or of any other employer required to be
aggregated with such Employer under Sections 414(b), (c), (m) or (o)
of the Code.
The term Employee shall also include any Leased Employee deemed to be
an Employee of any Employer described in the previous paragraph as
provided in Sections 414(n) or (o) of the Code.
(P) EMPLOYER: The Employer specified in the Adoption Agreement and any
successor to the business of the Employer establishing the Plan, which
shall be the Plan Administrator for purposes of Section 3(16) of
ERISA, a Named Fiduciary as defined in ERISA, and which may delegate
all or any part of its powers, duties and authorities in such capacity
without ceasing to be such Plan Administrator.
(Q) EMPLOYMENT COMMENCEMENT DATE: The date on which an Employee first
performs an Hour of Service for the Employer.
(R) ENTRY DATE: The date selected by the Employer in Item B(6)(d) of the
Adoption Agreement, which shall be:
(1) The Effective Date of the Plan, for any Employee who has
satisfied the eligibility requirements set forth in the Adoption
Agreement;
(2) The first day of the month which coincides with or immediately
follows the date on which the Employee satisfies the eligibility
requirements set forth in the Adoption Agreement;
(3) The first day of the Plan Year or the fourth, seventh, or tenth
month of the Plan Year which coincides with or immediately
follows the date on which the Employee satisfies such eligibility
requirements;
PAGE 4
(4) The first day of the Plan Year or the seventh month of the Plan
Year which coincides with or immediately follows the date on
which the Employee satisfies such eligibility requirements;
(5) The first day of the Plan Year, but only if the eligibility
service requirements specified in Item B(6)(d) are six months or
less; or,
(6) As soon as practicable after the Employee satisfies such
eligibility requirements specified in the Adoption Agreement, but
in no event beyond the date which would be six months following
the date on which the Employee first completes the eligibility
requirements specified in the Adoption Agreement.
(S) ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
(T) HIGHLY COMPENSATED EMPLOYEE: The term Highly Compensated Employee
includes highly compensated active employees and highly compensated
former employees.
A highly compensated active employee includes any Employee who
performs service for the Employer during the determination year and
who, during the look-back year: (i) received Compensation from the
Employer in excess of $75,000 (as adjusted pursuant to Section 415(d)
of the Code); (ii) received Compensation from the Employer in excess
of $50,000 (as adjusted pursuant to Section 415(d) of the Code) and
was a member of the top-paid group for such year; or (iii) was an
officer of the Employer and received Compensation during such year
that is greater than 50 percent of the dollar limitation in effect
under section 415(b)(1)(A) of the Code. The term Highly Compensated
Employee also includes: (i) Employees who are both described in the
preceding sentence if the term "determination year" is substituted for
the term "look-back year" and the Employee is one of the 100 Employees
who receive the most compensation from the Employer during the
determination year; and (ii) Employees who are 5 percent owners at any
time during the look-back year or determination year.
If no officer has satisfied the Compensation requirement of (iii)
above during either a determination year or look-back year, the
highest paid officer for such year shall be treated as a Highly
Compensated Employee.
For this purpose, the determination year shall be the Plan Year. The
look-back year shall be the twelve-month period immediately preceding
the determination year. A highly compensated former employee includes
any Employee who separated from service (or was deemed to have
separated) prior to the determination year, performs no service for
the Employer during the determination year, and was a highly
compensated active employee for either the separation year or any
determination year ending on or after the Employee's 55th birthday.
If an Employee is, during a determination year or look-back year, a
family member of either a 5 percent owner who is an active or former
employee or a Highly Compensated Employee who is one of the 10 most
Highly Compensated Employees ranked on the basis of Compensation paid
by the Employer during such year, then the family member and the 5
percent owner or top-ten Highly Compensated Employee shall be
aggregated. In such
PAGE 5
case, the family member and 5 percent owner or top-ten Highly
Compensated Employee shall be treated as a single employee receiving
Compensation and Plan contributions or benefits equal to the sum of
such Compensation and contributions or benefits of the family member
and 5 percent owner or top-ten Highly Compensated Employee.
For purposes of this Section, family member includes the Spouse,
lineal ascendants and descendants of the employee or former employee
and the spouses of such lineal ascendants and descendants.
The determination of who is a Highly Compensated Employee, including
the determinations of the number and identity of Employees in the
top-paid group, the top 100 Employees, the number of Employees treated
as officers and the Compensation that is considered, will be made in
accordance with Section 414(q) of the Code and the regulations
thereunder.
(U) HOUR OF SERVICE:
(1) Each hour for which an Employee is paid, or entitled to payment
for the performance of duties for the Employer. These hours shall
be credited to the Employee for the computation period in which
the duties are performed; and
(2) Each hour for which an Employee is paid, or entitled to payment,
by the Employer on account of a period of time during which no
duties are performed (irrespective of whether the employment
relationship has terminated) due to vacation, holiday, illness,
incapacity (including Disability), layoff, jury duty, military
duty, or leave of absence. No more than 501 Hours of Service
shall be credited under this paragraph for any single continuous
period (whether or not such period occurs in a single computation
period). Hours under this paragraph shall be calculated and
credited pursuant to Section 2530.200b-2 of the Department of
Labor Regulations which are incorporated herein by reference; and
(3) Each hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by the Employer. The same
Hours of Service shall not be credited both under subparagraph
(1) or subparagraph (2), as the case may be, and under this
subparagraph (3). These hours shall be credited to the Employee
for the computation period or periods to which the award or
agreement pertains rather than for the computation period in
which the award, agreement or payment is made.
Hours of Service will be credited for employment with other
members of an affiliated service group (under Section 414(m)), a
controlled group of corporations (under Section 414(b)), or a
group of trades or businesses under common control (under Section
414(c)) of which the adopting Employer is a member, and any other
entity required to be aggregated with the Employer pursuant to
Section 414(o).
Hours of Service will also be credited for any individual
considered an Employee for purposes of this Plan under Sections
414(n) or 414(o).
PAGE 6
(4) Where the Employer maintains the Plan of a predecessor employer,
service for such predecessor employer shall be treated as service
for the Employer. If the Employer does not maintain the Plan of a
predecessor employer, the Plan does not credit service with the
predecessor employer, unless the Employer identifies the
predecessor in its Adoption Agreement and specifies the purposes
for which the Plan will credit service with that predecessor
employer.
(5) Solely for purposes of determining whether a Break-in-Service, as
defined in Section 1.1 (E), for participation and vesting
purposes has occurred in a computation period, an individual who
is absent from work for maternity or paternity reasons shall
receive credit for the Hours of Service which would otherwise
have been credited to such individual but for such absence, or in
any case in which such hours cannot be determined, 8 Hours of
Service per day of such absence. For purposes of this paragraph,
an absence from work for maternity or paternity reasons means an
absence (1) by reason of the pregnancy of the individual, (2) by
reason of a birth of a child of the individual, (3) by reason of
the placement of a child with the individual in connection with
the adoption of such child by such individual, or (4) for
purposes of caring for such child for a period beginning
immediately following such birth or placement. The Hours of
Service credited under this paragraph shall be credited (1) in
the computation period in which the absence begins if the
crediting is necessary to prevent a Break-in-Service in that
period, or (2) in all other cases, in the following computation
period.
(6) Hours of Service will be determined on the basis of the method
selected in the Adoption Agreement.
(V) INVESTMENT FUND: One of the funds provided for Section 10.7, and as
selected by the Employer, as a Named Fiduciary, on the Investment Fund
Designation portion of the Adoption Agreement.
(W) LEASED EMPLOYEE: Any person (other than an employee of the recipient)
who pursuant to an agreement between the recipient and any other
person ("leasing organization") has performed services for the
recipient (or for the recipient 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 such services are of
a type historically performed by employees in the business field of
the recipient employer. Contributions or benefits provided a leased
employee by the leasing organization which are attributable to
services performed for the recipient employer shall be treated as
provided by the recipient employer.
A leased employee shall not be considered an employee of the recipient
if: (i) such employee is covered by a money purchase pension Plan
providing: (1) a nonintegrated employer contribution rate of at least
10 percent of compensation, as defined in Section 415(c)(3) of the
Code, but including amounts contributed pursuant to a salary reduction
agreement which are excludable from the employee's gross income under
Section 125, Section 402(e)(3), Section 402(h)(1)(B) or Section 403(b)
of the Code, (2) immediate participation, and (3) full and immediate
vesting; and (ii) leased employees do not constitute more than 20
percent of the recipient's nonhighly compensated workforce.
PAGE 7
(X) NET PROFITS: Current and accumulated earnings of the Employer before
Federal and state taxes and contributions to this and any other
qualified Plan, determined by the Employer in accordance with
generally accepted accounting principles.
(Y) NONHIGHLY COMPENSATED EMPLOYEE: An Employee of the Employer who is
neither a Highly Compensated Employee nor a Family Member.
(Z) NORMAL RETIREMENT DATE: The date specified in the Adoption Agreement
at which a participant shall become fully vested in his account
balances, as provided for in this document.
(AA) OWNER-EMPLOYEE: An individual who is a sole proprietor, or who is a
partner owning more than 10 percent of either the capital or profits
interest of the partnership.
(BB) PAIRED PLANS: The Employer has adopted Plan #001 and Plan #003, both
using this basic Plan document, which constitutes a set of "paired
plans" as defined by the Internal Revenue Service in Revenue Procedure
89-9, or any successor thereto.
(CC) PARTICIPANT: A person who becomes eligible to participate in
accordance with the provisions of Article II, and whose participation
has not been terminated.
(DD) PERMITTED DISPARITY LEVEL: The level selected in the Adoption
Agreement, not to exceed the Taxable Wage Base in effect at the
beginning of the Plan Year. The Taxable Wage Base is the contribution
and benefit base under section 230 of the Social Security Act at the
beginning of the year.
(EE) PERIOD OF SERVICE: The period beginning on the Employee's Employment
Commencement Date or Reemployment Commencement Date, and ending on the
date a Period of Severance begins. The Employee will receive credit
for any Period of Service of less than 12 consecutive months.
Fractional periods of a year will be expressed in days.
(FF) PERIOD OF SEVERANCE: A continuous period of time during which the
Employee is not employed by the Employer. A Period of Severance begins
on the date the Employee retires, quits, or is discharged, or dies, or
if earlier, the twelve month anniversary of the date on which the
Employee was first absent from work for any other reason; provided,
that if an Employee is absent from work for any other reason and
retires, quits, is discharged, or dies within 12 months, the Period of
Severance begins on the day the Employee quits, retires, is
discharged, or dies.
(GG) PLAN: This Plan established by the Employer as embodied in this
agreement and in the Adoption Agreement, and all subsequent amendments
thereto.
(HH) PLAN YEAR: The 12-consecutive month period designated by the Employer
in the Adoption Agreement. In the event that the original Effective
Date is not the first day of the Plan Year, the first Plan Year shall
be a short Plan Year, beginning on the original Effective Date, and
ending on the last day of the Plan Year as specified in the Adoption
Agreement.
PAGE 8
(II) QUALIFIED DISTRIBUTION DATE: For purposes of Section 7.13, the
Qualified Distribution Date, if selected in the Adoption Agreement,
shall be the earliest retirement date specified in Code Section 414(p)
and shall operate to allow a distribution to an Alternate Payee at the
time a domestic relations order is determined to be qualified.
(JJ) REEMPLOYMENT COMMENCEMENT DATE: The date on which an Employee
completes an Hour of Service with the Employer after a Break In
Service or a Period of Severance.
(KK) RELATED EMPLOYERS: Any employer related to the Employer as a
controlled group of corporations (as defined in Section 414(b) of
the Code), a group of trades or businesses (whether or not
incorporated) which are under common control (as defined in Section
414(c)) or an affiliated service group (as defined in Section 414(m)
or in Section 414(o) of the Code). If the Employer is a member of a
related group, the term "Employer" includes the related group members
for purposes of crediting Hours of Service, determining Years of
Service and Breaks in Service under Article II, applying participation
and coverage testing, applying the limitations on allocations in
Section 6.6, applying the top heavy rules and the minimum allocation
requirements of Article IX, the definitions of Employee, Highly
Compensated Employee, Compensation and Leased Employee, and for any
other purpose required by the applicable Code section or by a Plan
provision. However, an Employer may contribute to the Plan only by
signing the Adoption Agreement or a Participation Agreement to the
Employer's Adoption Agreement. If one or more of the Employer's
related group members become Participating Employers by executing a
Participation Agreement to the Employer's Adoption Agreement, the term
"Employer" includes the participating related group members for all
purposes of the Plan, and "Plan Administrator" means the Employer that
is the signatory to the Adoption Agreement.
If the Employer's Plan is a standardized Plan, all Employees of the
Employer or of any member of the Employer's related group, are
eligible to participate in the Plan, irrespective of whether the
related group member directly employing the Employee is a
Participating Employer. If the Employer's Plan is a nonstandardized
Plan, the Employer must specify in Item B(5) of its Adoption
Agreement, whether the Employees of related group members that are
not Participating Employers are eligible to participate in the Plan.
Under a nonstandardized Plan, the Employer may elect to exclude
from the definition of "Compensation" for allocation purposes any
Compensation received from a related employer that has not executed a
Participation Agreement and whose Employees are not eligible to
participate in the Plan.
(LL) SELF-EMPLOYED INDIVIDUAL: An individual who has Earned Income for the
taxable year from the trade or business for which the Plan is
established; also, an individual who would have had Earned Income but
for the fact that the trade or business had no Net Profits for the
taxable year.
(MM) SPOUSE: The person to whom the Participant is legally married at the
relevant time. Notwithstanding the foregoing, if selected in the
Adoption Agreement, Spouse shall only refer to an individual to whom a
Participant has been married to for a period of at least one year,
ending at the relevant time.
PAGE 9
(NN) STOCKHOLDER-EMPLOYEE: An employee or officer of an electing small
business (Subchapter S) corporation who owns (or is considered as
owning within the meaning of Section 318(a)(1) of the Code), on any
day during the taxable year of such corporation, more than 5% of the
outstanding stock of the corporation.
(OO) TERMINATION DATE: The date on which a Participant's employment is
terminated as provided in Section 5.1.
(PP) TRUSTEE: The entity specified in Item B(17) of the Adoption Agreement,
which shall be any bank or trust company which is affiliated with
KeyCorp. within the meaning of Section 1504 of the Code, each of which
with full trust powers, and its successors by merger or
reorganization.
(QQ) TRUST FUND: All assets held under the Plan by the Trustee.
(RR) VALUATION DATE. The date on which the assets of the Trust shall be
valued, as provided for herein, with earning or losses since the
previous Valuation Date being credited, as appropriate to Participant
accounts. Notwithstanding anything to the contrary in the Plan, the
Valuation date shall be each business day that the Trustee and the New
York Stock Exchange are each open for business, provided, however,
that the Trustee shall not be obligated to value the Trust in the
event through circumstances beyond its control, appropriate prices may
not be obtained for the assets held in the Investment Funds.
(SS) VESTING COMPUTATION PERIOD. The Vesting Computation Period shall be
the 12-consecutive month period selected by the Employer in the
Adoption Agreement.
(TT) YEAR OF PARTICIPATION: For purposes of vesting, a twelve (12) month
period in which an Employee has a balance in an account established
under a 401(k)/401(m) arrangement regardless of whether the Employee
is currently making contributions under the arrangement.
(UU) YEAR OF SERVICE: (i) If the elapsed time method of crediting service
is elected in the Adoption Agreement, a Year of Service will mean a
one-year Period of Service. If the actual hours method of crediting
service is elected in the Adoption Agreement, a Year of Service will
mean a 12-consecutive month period as specified in the Adoption
Agreement during which the Employee completes the number of Hours of
Service (not to exceed 1000) specified in the Adoption Agreement.
1.2 GENDER AND NUMBER. Unless the context indicates otherwise, the masculine
shall include the feminine, and the use of any words herein in the singular
shall include the plural and vice versa.
1.3 CONTROL OF TRADES OR BUSINESSES BY OWNER-EMPLOYEE. If this Plan provides
contributions or benefits for one or more Owner-Employees who control both
the business for which this Plan is established and one or more other
trades or businesses, this Plan and the Plan established for other trades
or businesses must, when looked at as a single Plan, satisfy Sections 401
(a) and (d) for the employees of this and all other trades or businesses.
If the Plan provides contributions or benefits for one or more
Owner-Employees who control one or more other trades or businesses, the
employees of the other trades or businesses must be in-
PAGE 10
cluded in a Plan which satisfies Sections 401(a) and (d) and which
provides contributions and benefits not less favorable than provided for
Owner-Employees under this Plan.
If an individual is covered as an Owner-Employee under the plans of two or
more trades or businesses which are not controlled and the individual
controls a trade or business, then the contributions or benefits of the
employees under the Plan of the trades or businesses which are controlled
must be as favorable as those provided for him under the most favorable
Plan of the trade or business which is not controlled.
For purposes of the preceding paragraphs, an Owner-Employee, or two or more
Owner-Employees, will be considered to control a trade or business if the
Owner-Employee, or two or more Owner-Employees together:
(1) Own the entire interest in an unincorporated trade or business, or
(2) In the case of a partnership, own more than 50 percent of either
capital interest or the profits interest in the partnership.
For purposes of the preceding sentence, an Owner-Employee, or two or
more Owner-Employees shall be treated as owning any interest in a
partnership which is owned, directly or indirectly, by a partnership
which such Owner-Employee, or such two or more Owner-Employees, are
considered to control within the meaning of the preceding sentence.
ARTICLE II
ELIGIBILITY AND VESTING
2.1 ELIGIBILITY.
(A) PARTICIPATION. Every Employee who meets the eligibility requirements
specified by the Employer in the Adoption Agreement shall become
eligible to commence participation in this Plan.
(B) COMMENCEMENT OF PARTICIPATION.
(1) For purposes of Money Purchase Pension Plans, Profit Sharing
Plans and 401(k) Plans with Profit Sharing Contributions, each
Eligible Employee shall commence participation on the Entry Date.
(2) For purposes of 401(k) and 401(m) arrangements, an Eligible
Employee may, but is not required to, enroll as a Participant as
of the Entry Date on which such Employee is initially eligible
by filing with the Committee before such date, an enrollment
form prescribed by the Committee. The time period for filing an
enrollment form shall be determined by the Committee. The form
shall include an authorization and request to the Employer to
deduct from such Participant's Compensation in each pay
period the designated After Tax Contributions, and/or to reduce
such Participant's Compensation in each pay period by the amount
of the designated Before Tax Contributions.
PAGE 11
(C) YEARS OF SERVICE COUNTED TOWARDS ELIGIBILITY. All Years of Service
with the Employer are counted toward eligibility except the following:
(1) In a Plan which (a) requires an Employee to complete more than
one Year of Service as an eligibility requirement and (b)
provides immediate 100% vesting in a Participant's Employer
Contribution Account after not more than two (2) Years of
Service, if an Employee has a 1-year Break in Service before
satisfying the Plan's requirement for eligibility, service before
such break will not be taken into account.
(2) In the case of a Participant who does not have any nonforfeitable
right to the account balance derived from Employer contributions,
Years of Service before a period of consecutive 1-year Breaks in
Service will not be taken into account in computing eligibility
service if the number of consecutive 1-year Breaks in Service in
such period equals or exceeds the greater of 5 or the aggregate
number of Years of Service. Such aggregate number of Years of
Service will not include any Years of Service disregarded under
the preceding sentence by reason of prior Breaks in Service.
(3) If a Participant's Years of Service are disregarded pursuant to
the preceding paragraph, such Participant will be treated as a
new Employee for eligibility purposes. If a Participant's Years
of Service may not be disregarded pursuant to the preceding
paragraph, such Participant shall continue to participate in the
Plan, or, if terminated, shall participate immediately upon
reemployment.
(D) ELIGIBILITY BREAK IN SERVICE, ONE YEAR HOLD-OUT RULE. If the Plan is
a nonstandardized Plan, then:
(1) In the case of any Participant who has a 1-year Break in Service
or Severance, years of eligibility service before such break will
not be taken into account until the Employee has completed a
Year of Service after returning to employment.
(2) For plans in which the eligibility computation is measured with
reference to the Employment Commencement Date, such Year of
Service will be measured beginning on the Employee's Reemployment
Commencement Date and, if necessary, subsequent 12-consecutive
month periods beginning on anniversaries of the Reemployment
Commencement Date.
(3) For plans which shift the Eligibility Computation Period to the
Plan Year, such Year of Service will be measured by the
12-consecutive month period beginning on the Employee's
Reemployment Commencement Date and, if necessary, Plan Years
beginning with the Plan Year which includes the first anniversary
of the Reemployment Commencement Date.
(4) If a Participant completes a Year of Service in accordance with
this provision, his or her participation will be reinstated as a
Participant as of the Reemployment Commencement Date.
(E) PARTICIPATION UPON RETURN TO ELIGIBLE CLASS.
PAGE 12
(1) In the event a Participant is no longer a member of an eligible
class of Employees and becomes ineligible to participate but has
not incurred a Break In Service, such Employee shall participate
immediately upon returning to an eligible class of Employees. If
such Participant incurs a Break In Service eligibility will be
determined under the Break in Service rules of the Plan.
(2) In the event an Employee who is not a member of an eligible class
of Employees becomes a member of an eligible class, such Employee
will participate immediately if such Employee has satisfied the
minimum age and service requirements and would have otherwise
previously become a Participant.
2.2 VESTING.
(A) VESTING SCHEDULE. In the case of an Employee who terminates
participation under this Plan for any reason other than death,
Disability, or employment at the Normal Retirement Date, such
Participant, as of the last day of his participation under this Plan,
shall have a vested interest in his Employer Contribution Account
pursuant to the formula specified by the Employer in the Adoption
Agreement.
(B) VESTING UPON NORMAL RETIREMENT DATE. Notwithstanding the vesting
schedule elected by the Employer in Items B(7)(a) or C(4)(d) of the
Adoption Agreement, an Employee's right to his or her Employer
Contribution balance shall be nonforfeitable at the Employee's
Normal Retirement Date.
(C) VESTING BREAK IN SERVICE - 1 YEAR HOLDOUT. In the case of any
Participant who has incurred a 1-year Break in Service, Years of
Service before such break will not be taken into account until the
Participant has completed a Year of Service after such Break in
Service.
(D) VESTING FOR PRE-BREAK AND POST-BREAK ACCOUNT. In the case of a
Participant who has 5 or more consecutive 1-year Breaks in Service,
all service after such Breaks in Service will be disregarded for the
purpose of vesting the employer-derived account balance that accrued
before such Breaks in Service. Such Participant's pre-break service
will count in vesting the post-break employer-derived account balance
only if either:
(1) such Participant has any nonforfeitable interest in the account
balance attributable to employer contributions at the time of
separation from service; or
(2) upon returning to service the number of consecutive 1-year
Breaks in Service is less than the number of Years of Service.
Separate accounts will be maintained for the Participant's
pre-break and post-break Employer Contribution Account balance.
Both accounts will share in the earnings and losses of the Trust
Fund.
(E) AMENDMENT OF VESTING SCHEDULE. If the Plan's vesting schedule is
amended, or the Plan is amended in any way that directly or indirectly
affects the computation of the Participant's nonforfeitable percentage
or if the Plan is deemed amended by an automatic change to or from a
top-heavy vesting schedule, each Participant with at least three (3)
Years of Service with the Employer may elect within a reasonable
period after the adoption of the amend-
PAGE 13
ment or change, to have the nonforfeitable percentage computed under
this Plan without regard to such amendment or change. For Participants
who do not have at least 1 Hour of Service in any Plan Year beginning
after December 31, 1988, the preceding sentence shall be applied by
substituting "5 Years of Service" for "3 Years of Service" where such
language appears.
This period during which the election may be made shall commence with
the date the amendment is adopted or deemed to be made and shall end
on the latest of:
(1) Sixty (60) days after the amendment is adopted;
(2) Sixty (60) days after the amendment becomes effective; or
(3) Sixty (60) days after the Participant is issued written notice of
the amendment by the Employer or Committee.
(F) AMENDMENT AFFECTING VESTED AND/OR ACCRUED BENEFITS. No amendment to
the Plan shall be effective to the extent that it has the effect of
decreasing a Participant's accrued benefit. Notwithstanding the
preceding sentence, a Participant's account balance may be reduced to
the extent permitted under Section 412(c)(8) of the Code. For purposes
of this paragraph, a Plan amendment which has the effect of decreasing
a Participant's account balance or eliminating an optional form of
benefit, with respect to benefits attributable to service before the
amendment shall be treated as reducing an accrued benefit.
Furthermore, if the vesting schedule of a Plan is amended, in the case
of an Employee who is a Participant as of the later of the date such
amendment is adopted or the date it becomes effective, the
nonforfeitable percentage (determined as of such date) of such
Employee's Employer-derived accrued benefit will not be less than the
percentage computed under the Plan without regard to such amendment.
ARTICLE III
CODE 401(k) AND CODE 401(m) ARRANGEMENTS
3.1 PROVISION RELATING TO BOTH BEFORE TAX CONTRIBUTIONS AND AFTER TAX
CONTRIBUTIONS.
(A) DEFINITIONS: The following definitions are applicable to this Article
of the Plan.
(1) ACTUAL DEFERRAL PERCENTAGE OR ADP: for a specified group of
Participants for a Plan Year, the average of the ratios
(calculated separately for each Participant in such group) of (1)
the amount of Employer contributions actually paid over to the
trust on behalf of such Participant for the Plan Year to (2) the
Participant's Compensation for such Plan Year (whether or not the
Employee was a Participant for the entire Plan Year, but limited
to that portion of the Plan Year in which the Employee was an
Eligible Participant if the Employer so elects for such Plan Year
to so limit Compensation for all Eligible Employees). Employer
contributions on behalf of any Participant shall include (1) any
Before Tax Contributions made pursuant to the Participant's
deferral election, including Excess Before Tax Contributions, but
excluding Before Tax Contributions that are taken into account in
the Contribution Percentage test (provided the ADP test is
satisfied both with and without exclusion of these Before Tax
Contributions); and (2) at the election of the Employer,
Qualified Non-elective Contributions and Qualified Matching
PAGE 14
Contributions. For purposes of computing Actual Deferral
Percentages, an Employee who would be a Participant but for the
failure to make Before Tax Contributions shall be treated as a
participant on whose behalf no Before Tax Contributions are
made.
(2) AFTER TAX CONTRIBUTIONS ("EMPLOYEE CONTRIBUTIONS"): Any
contribution made to the Plan by or on behalf of a Participant
that is included in the Participant's gross income in the year in
which made and that is maintained under a separate account to
which earnings and losses are allocated.
(3) AGGREGATE LIMIT: The sum of (i) 125 percent of the greater of the
ADP of the Non-highly Compensated Employees for the Plan Year or
the ACP of Non-highly Compensated Employees under the Plan
subject to Code Section 401(m) for the Plan Year beginning with
or within the Plan Year of the cash or deferred arrangement and
(ii) the lesser of 200% or two plus the lesser of such ADP or
ACP. "Lesser" is substituted for "greater" in "(i)", above, and
"greater" is substituted for "lesser" after "two plus the" in
"(ii)" if it would result in a larger Aggregate Limit.
(4) AVERAGE CONTRIBUTION PERCENTAGE OR ACP: the average (expressed as
a percentage) of the Contribution Percentages of the Eligible
Participants in a group.
(5) BEFORE TAX CONTRIBUTIONS ("ELECTIVE DEFERRALS"): Employer
contributions made to the Plan at the election of the
Participant, in lieu of cash compensation, which shall include
contributions made pursuant to a salary reduction agreement or
other deferral mechanism. With respect to any taxable year, a
Participant's Before Tax Contributions are the sum of all
Employer contributions made on behalf of such Participant
pursuant to an election to defer under any qualified cash or
deferred arrangement as described in Section 401(k) of the Code,
any simplified employee pension cash or deferred arrangement as
described in Code Section 402(h)(1)(B), any eligible deferred
compensation Plan under Code Section 457, any Plan as described
under Code Section 457, any Plan as described under Code Section
501(c)(18), and any Employer contributions made on behalf of a
Participant for the purchase of an annuity contract under Code
Section 403(b) pursuant to a salary reduction agreement.
(6) CONTRIBUTION PERCENTAGE: The ratio (expressed as a percentage)
of the Participant's Contribution Percentage Amounts to the
Participant's Compensation for the Plan Year (whether or not the
Employee was a Participant for the entire Plan Year, but limited
to that portion of the Plan Year in which the Employee was an
Eligible Participant if the Employer so elects for such Plan
Year to so limit Compensation for all Eligible Employees).
(7) CONTRIBUTION PERCENTAGE AMOUNTS: The sum of the After Tax
Contributions, Matching Contributions, and Qualified Matching
Contributions (to the extent not taken into account for purposes
of the ADP test) made under the Plan on behalf of the Participant
for the Plan Year. Such Contribution Percentage Amounts shall not
include Matching Contributions that are forfeited either to
correct Excess Aggregate Contributions or because the
contributions to which they relate are Excess
PAGE 15
Before Tax Contributions, Excess Contributions or Excess
Aggregate Contributions. If so elected in the Adoption Agreement
the Employer may include Qualified Non-elective Contributions in
the Contribution Percentage Amounts. The Employer also may elect
to use Before Tax Contributions in the Contribution Percentage
Amounts so long as the ADP test is met before the Before Tax
Contributions are used in the ACP test and continues to be met
following the exclusion of those Before Tax Contributions that
are used to meet the ACP test.
(8) ELIGIBLE PARTICIPANT: Any Employee who is eligible to make an
After Tax Contribution or a Before Tax Contribution (if the
Employer takes such contributions into account in the calculation
of the Contribution Percentage), or to receive a Matching
Contribution (including forfeitures) or a Qualified Matching
Contribution. If an After Tax Contribution is required as a
condition of participation in the Plan, any Employee who would be
a Participant in the Plan if such Employee made such a
contribution shall be treated as an eligible Employee on behalf
of whom no After Tax Contributions are made.
(9) EXCESS AGGREGATE CONTRIBUTIONS: With respect to any Plan Year,
the excess of:
(a) The aggregate Contribution Percentage Amounts taken into
account in computing the numerator of the Contribution
Percentage actually made on behalf of Highly Compensated
Employees for such Plan Year, over
(b) The maximum Contribution Percentage Amounts permitted by the
ACP test (determined by reducing contributions made on
behalf of Highly Compensated Employees in order of their
Contribution Percentages beginning with the highest of such
percentages).
Such determination shall be made after first determining
Excess Before Tax Contributions pursuant to Section 3.2(D)
and (E) and then determining Excess Contributions pursuant
to section 3.2(F), (G) and (H).
(10) EXCESS BEFORE TAX CONTRIBUTIONS ("EXCESS ELECTIVE DEFERRALS"):
Those Before Tax Contributions that are includible in a
Participant's gross income under Section 402(g) of the Code to
the extent such Participant's Before Tax Contributions for a
taxable year exceed the dollar limitation under such Code
section. Excess Before Tax Contributions shall be treated as
Annual Additions under the Plan, unless such amounts are
distributed no later than the first April 15 following the
close of the Participants taxable year. Excess Before Tax
Contributions shall be adjusted for income or loss up to the
end of the taxable year of the Employee, and if elected in the
Adoption Agreement, for the income or loss attributable to the
period from the end of the Employee's taxable year to the date
of distribution (the "Gap Period"). The income or loss allocable
to Excess Before Tax Contributions is (1) the income or loss
allocable to the Participant's Before Tax Contribution Account
for the taxable year multiplied by a fraction, the numerator of
which is such Participant's Excess Before Tax Contributions for
the year and the denominator is the Participant's account balance
attributable to Before Tax Contributions without regard to any
income or loss occurring during such taxable year plus, (2) if
Gap
PAGE 16
Period income or loss applies, ten percent of the amount
determined under (1) multiplied by the number of whole calendar
months between the end of the Participant's taxable year and the
date of distribution, counting the month of distribution if
distribution occurs after the 15th of such month.
(11) EXCESS CONTRIBUTIONS: With respect to any Plan Year, the excess
of:
(a) The aggregate amount of Employer contributions actually
taken into account in computing the ADP of Highly
Compensated Employee for such Plan Year, over
(b) The maximum amount of such contributions permitted by the
ADP test (determined by reducing contributions made on
behalf of Highly Compensated Employee in order of the ADPs,
beginning with the highest of such percentages).
(12) MATCHING CONTRIBUTIONS: An Employer contribution made to this or
any other defined contribution Plan on behalf of a Participant on
account of an After Tax Contribution made by such Participant, or
on account of a Participant's Before Tax Contribution, under a
Plan maintained by the Employer.
(13) QUALIFIED MATCHING CONTRIBUTIONS: Matching Contributions which
are subject to the distribution and nonforfeitability
requirements under Section 401(k) of the Code when made.
Qualified Matching Contributions shall be allocated, in the
discretion of Employer, to the accounts of all Employees, or only
to the accounts of Non-highly Compensated Employees.
(14) QUALIFIED NON-ELECTIVE CONTRIBUTIONS: Contributions (other than
Matching Contributions or Qualified Matching Contributions) made
by the Employer and allocated to Participants' accounts that the
Participants may not elect to receive in cash until distributed
from the Plan; that are nonforfeitable when made; and that are
distributable only in accordance with the distribution provisions
that are applicable to Before Tax Contributions and Qualified
Matching Contributions. Qualified Non-elective Contributions
shall be allocated, in the discretion of Employer, to the
accounts of all Employees, or only to the accounts of Non-highly
Compensated Employees.
(B) NONFORFEITABILITY AND VESTING. The Participant's accrued benefits
derived from Before Tax Contributions and After Tax Contributions are
nonforfeitable and fully vested.
(C) NOTICE TO COMMITTEE. The Committee shall set the time period during
which a Participant may provide written notice to increase, decrease
or terminate Before Tax Contributions and After Tax Contributions.
(D) SUSPENSION AFTER RECEIPT OF HARDSHIP DISTRIBUTION. If the Employer has
elected in the Adoption Agreement to have the "safe harbor" hardship
rules apply, an Employee's Before Tax Contributions and After Tax
Contributions shall be suspended for twelve months after
PAGE 17
the receipt by such Employee of a Hardship distribution (as defined in
Section 3.9) from this Plan or any other Plan maintained by the
Employer.
(E) SEPARATE ACCOUNTS. Separate accounts for Before Tax Contributions and
After Tax Contributions will be maintained for each Participant. Each
account will be credited with the applicable contributions and
earnings thereon.
3.2 BEFORE TAX CONTRIBUTIONS. (ELECTIVE DEFERRALS).
(A) ALLOCATION OF BEFORE TAX CONTRIBUTIONS. If the Employer selects Item
C(2) in the Adoption Agreement, for each Plan Year the Employer will
contribute and allocate to each Participant's Before Tax Contribution
Account an amount equal to the amount of the Participant's Before Tax
Contributions. The provisions of the cash or deferred arrangement may
be made effective as of the first day of the Plan Year in which the
cash or deferred option is adopted, however, under no circumstances
may a salary reduction agreement or other deferral mechanism be
adopted retroactively. Before Tax Contributions must be contributed
and allocated to the Plan no later than thirty (30) days after the
close of the Plan Year for which the contributions are deemed to be
made, or such other time as provided in applicable regulations under
the Code.
(B) BEFORE TAX CONTRIBUTIONS PURSUANT TO A SALARY REDUCTION AGREEMENT. To
the extent provided in the Adoption Agreement, a Participant may
elect to have Before Tax Contributions made under this Plan. Before
Tax Contributions shall be continuing contributions through payroll
deduction made pursuant to a salary reduction agreement.
(1) COMMENCEMENT OF BEFORE TAX CONTRIBUTIONS. An Employee may elect
to commence Before Tax Contributions as of his or her Entry Date
as described in Section 2.1(B). Such election shall not become
effective before the Entry Date. Such election may not be made
retroactively.
(2) MODIFICATION AND TERMINATION OF BEFORE TAX CONTRIBUTIONS. A
Participant's election to commence Before Tax Contributions shall
remain in effect until modified or terminated. A Participant may
increase or decrease his or her Before Tax Contributions as of
any date as selected by the Employer in Item C(3) of the Adoption
Agreement upon notice to the Committee. A Participant may
terminate his or her election to make Before Tax Contributions as
of the Participant's next wage payment date upon notice to the
Committee. Any Participant who terminates Before Tax
Contributions may elect to recommence making Before Tax
Contributions as of the date selected by the Employer in
Item C(3) of the Adoption Agreement following his or her
suspension of contributions.
(C) CASH BONUSES. If Item C(2)(c) of the Adoption Agreement is selected, a
Participant may also enter into a salary reduction agreement on cash
bonuses that, directing that the amount of such salary reduction be
contributed to the Plan as a Before Tax Contribution, or received by
the Participant in cash. A Participant shall be afforded a reasonable
period to elect to defer amounts described in this Section 3.2 to the
Plan. Such election shall not become effective before the
Participant's Entry Date.
PAGE 18
(D) MAXIMUM AMOUNT OF BEFORE TAX CONTRIBUTIONS. A Participant's Before Tax
Contributions are subject to any limitations imposed in Item C(2) of
the Adoption Agreement, calculated on an annual basis, and any further
limitations under the Plan. No Participant shall be permitted to have
Before Tax Contributions made under this Plan, or any other qualified
Plan maintained by the Employer, during any taxable year in excess of
the dollar limitation contained in Code Section 402(g) in effect at
the beginning of such taxable year. Furthermore, if an Employee
receives a Hardship distribution (as defined in Section 3.9, utilizing
the "safe harbor" rules) from this Plan or any other Plan maintained
by the Employer, the Employee may not make Before Tax Contributions
for the Employee's taxable year immediately following the taxable
year of the Hardship distribution in excess of the applicable limit
under Section 402(g) of the Code for such taxable year less the amount
of the Employee's Before Tax Contributions for the taxable year of the
Hardship distribution.
(E) DISTRIBUTION OF EXCESS BEFORE TAX CONTRIBUTIONS. If a Participant
makes Before Tax Contributions to this Plan and to another Plan, and
the Participant has made Excess Before Tax Contributions to one or
more of the plans, the Participant may assign the amount of any such
Excess Before Tax Contributions among the plans under which such
Before Tax Contributions were made. The Participant may assign to this
Plan any Excess Before Tax Contributions made during a taxable year of
the Participant to this Plan by notifying the Committee on or before
the date specified in the Adoption Agreement of the amount of the
Excess Before Tax Contributions to be assigned to the Plan. A
Participant is deemed to notify the Committee of any Excess Before Tax
Contributions that arise by taking into account only those Before Tax
Contributions made under the Plan or Plans of this Employer.
Notwithstanding any other provision of the Plan, Excess Before Tax
Contributions, plus any income and minus any loss allocable thereto,
shall be distributed no later than April 15 to any Participant to
whose account Excess Before Tax Contributions were assigned for the
preceding year and who claims Excess Before Tax Contributions for such
taxable year.
The Participant's claim shall be in writing; shall be submitted to the
Committee not later than the date elected in Item CC of the Adoption
Agreement; shall specify the amount of the Participant's Excess Before
Tax Contribution for the preceding calendar year; and shall be
accompanied by the Participant's written statement that if such
amounts are not distributed, such Excess Before Tax Contributions,
when added to amounts deferred under other plans or arrangements
described in Sections 401(k), 408(k), or 403(b) of the Code, will
exceed the limit imposed on the Participant by Section 402(g) of the
Code for the year in which the deferral occurred.
(F) ACTUAL DEFERRAL PERCENTAGE. The ADP for Participants who are Highly
Compensated Employees for each Plan Year and the ADP for Non-highly
Compensated Employees for the same Plan Year must satisfy one of the
following tests:
(1) 1.25 LIMIT. The ADP for Participants who are Highly Compensated
Employees for the Plan Year shall not exceed the ADP for
Participants who are Non-highly Compensated Employees for the
same Plan Year multiplied by 1.25; or
PAGE 19
(2) 2.0 LIMIT. The ADP for Participants who are Highly Compensated
Employees for the Plan Year shall not exceed the ADP for
Participants who are Non-highly Compensated Employees for the
same Plan Year multiplied by 2.0, provided that the ADP for
Participants who are Highly Compensated Employees does not exceed
the ADP for Participants who are Non-highly Compensated Employees
by more than two (2) percentage points.
(3) SPECIAL RULES.
(a) The ADP for any Participant who is a Highly Compensated
Employee for the Plan Year and who is eligible to have
Before Tax Contributions (and Qualified Non-elective
Contributions, or Qualified Matching Contributions, or both,
if treated as Elective Deferrals for purposes of the ADP
test) allocated to his or her accounts under two or more
arrangements described in Section 401(k) of the Code, that
are maintained by the Employer, shall be determined as if
such Before Tax Contributions (and, if applicable, such
Qualified Non-elective Contributions or Qualified Matching
Contributions, or both,) were made under a single
arrangement. If a Highly Compensated Employee participates
in two or more cash or deferred arrangements that have
different Plan Years, all cash or deferred arrangements
ending with or within the same calendar year shall be
treated as a single arrangement.
(b) In the event that this Plan satisfies the requirements of
Sections 401(k), 401(a)(4), or 41O(b) of the Code only
if aggregated with one or more other plans, or if one or
more other plans satisfy the requirements of such Sections
of the Code only if aggregated with this Plan, then this
section shall be applied by determining the ADP of Employees
as if all such plans were a single Plan. For Plan Years
beginning after December 31, 1989, plans may be aggregated
in order to satisfy Section 401(k) of the Code only if they
have the same Plan Year.
(c) For purposes of determining the ADP of a Participant who is
a 5-percent owner or one of the ten most highly-paid Highly
Compensated Employees, the Before Tax Contributions (and
Qualified Non-elective Contributions or Qualified Matching
Contributions, or both, if treated as Before Tax
Contributions for purposes of the ADP test) and Compensation
of such Participant shall include the Before Tax
Contributions (and, if applicable, Qualified Non-elective
Contributions) and Compensation for the Plan Year of Family
Members (as defined in Section 414(q)(6) of the Code).
Family Members, with respect to such Highly Compensated
Employees, shall be disregarded as separate employees in
determining the ADP both for Participants who are Non-highly
Compensated Employees and for Participants who are Highly
Compensated Employees.
(d) For purposes of determining the ADP test, Before Tax
Contributions if treated as Before Tax Contributions and
Qualified Non-elective Contributions must be made before the
last day of the twelve-month period immediately following
the Plan Year to which contributions relate.
PAGE 20
(e) The Employer shall maintain records sufficient to
demonstrate satisfaction of the ADP test and the amount of
Qualified Non-elective Contributions used in such test.
(f) The determination and treatment of the ADP amounts of any
Participant shall satisfy such other requirements as may be
prescribed by the Secretary of the Treasury.
(G) DISTRIBUTION OF EXCESS CONTRIBUTIONS. Notwithstanding any other
provision of the Plan, Excess Contributions, plus any income and minus
any loss allocable thereto, shall be distributed no later than the
last day of each Plan Year to Participants to whose accounts Excess
Contributions were allocated for the preceding Plan Year. If such
excess amounts are distributed more than 2-1/2 months after the last
day of the Plan Year in which such excess amounts arose, a ten (10)
percent excise tax will be imposed on the Employer maintaining the
Plan with respect to such amounts. Such distributions shall be made to
Highly Compensated Employees on the basis of the respective portions
of the Excess Contributions attributable to each of such Employees.
Excess Contributions of Participants who are subject to the Family
Member aggregation rules shall be allocated among the Family Members
in proportion to the Before Tax Contributions (and amounts treated as
Before Tax Contributions) of each Family Member that is combined to
determine the combined ADP.
Excess Contributions (including the amounts recharacterized) shall be
treated as Annual Additions under the Plan.
(1) DETERMINATION OF INCOME OR LOSS. The Excess Contributions shall
be adjusted for income or loss up to the date of distribution.
The income or loss allocable to Excess Contributions is (1) the
income or loss allocable to the Participant's Before Tax
Contribution Account (and, if applicable, the Qualified
Non-elective Contribution Account or the Qualified Matching
Contribution Account or both) multiplied by a fraction, the
numerator of which is such Participant's Excess Contribution for
the year and the denominator is the Participant's account balance
attributable to Before Tax Contributions (and Qualified
Non-Elective Contributions or Qualified Matching Contributions or
both, if any of such contributions are included in the ADP test)
without regard to any income or loss occurring during such
taxable year, plus, (2) if Gap Period income or loss applies, as
elected in the Adoption Agreement, ten percent of the amount
determined under (1) multiplied by the number of whole calendar
months between the end of the Plan Year and the date of
distribution, counting the month of distribution if distribution
occurs after the 15th of such month.
(2) ACCOUNTING FOR EXCESS CONTRIBUTIONS. Excess Contributions shall
be distributed from the Participant's Before Tax Contribution
Account and Qualified Matching Contribution Account (if
applicable) in proportion to the Participant's Before Tax
Contributions and Qualified Matching Contributions (to the extent
used in the ADP test) for the Plan Year. Excess Contributions
shall be distributed from the participant's Qualified
Non-elective Contribution Account only to the extent that
PAGE 21
such Excess Contributions exceed the balance in the Participant's
Before Tax Contribution Account.
(H) RECHARACTERIZATION. If the Plan permits After Tax Contributions
(Employee Contributions), Excess Contributions may be recharacterized
pursuant to this subsection. Recharacterized amounts may be used in
the Plan from which Excess Contributions arose or in another Plan of
the employer with the same Plan Year.
(1) TREATMENT OF AMOUNTS RECHARACTERIZED. A Participant may treat his
or her Excess Contributions as an amount distributed to the
Participant and then contributed by the Participant to the Plan.
Recharacterized amounts will remain nonforfeitable and subject to
the same distribution requirements as Before Tax Contributions.
Amounts may not be recharacterized by a Highly Compensated
Employee to the extent that such amount in combination with other
After Tax Contributions made by that Employee would exceed any
stated limit under the Plan on After Tax Contributions.
(2) TIMING OF RECHARACTERIZATION. Recharacterization must occur no
later than two and one-half months after the last day of the Plan
Year in which such Excess Contributions arose and is deemed to
occur no earlier than the date the last Highly Compensated
Employee is informed in writing of the amount recharacterized and
the consequences thereof. Recharacterized amounts will be taxable
to the Participant for the Participant's tax year in which the
Participant would have received them in cash.
(I) ADJUSTMENTS TO BEFORE TAX CONTRIBUTION PERCENTAGES. Anything to the
contrary in this Article III notwithstanding, the Committee shall have
the right to reduce the percentages designated pursuant to Section
3.2(B), of any one or more Highly Compensated Employees in a manner
prescribed or approved by the Committee to the extent necessary or
convenient to ensure that at least one of the ADP tests set forth in
Section 3.2(F) is satisfied, but in no event shall such reduction
result in a percentage less than zero. Any such reduction shall be
effected quarterly, or more frequently as the Committee may determine
and each affected Highly Compensated Employee shall be deemed to have
elected the permissible percentage determined by the Committee. The
Committee may, on a prospective basis, and subject to the percentage
limits of Section 3.3 below, treat amounts contributed to the Plan
pursuant to a salary reduction agreement as After Tax Contributions by
each affected Highly Compensated Employee; provided that if any such
reduction cannot be so treated because of the said percentage limits
or because of the nondiscrimination requirements of Code Section
401(m) or otherwise, then the amount of such reduction (and any
income allocable thereto) shall be distributed to each affected Highly
Compensated Employee pursuant to Code Section 401(k)(8) or Code
Section 401(m)(6), if applicable, not later than the close of the
first 2-1/2 months of the Plan Year following the Plan Year in which
the contribution was made.
3.3 AFTER TAX CONTRIBUTIONS. (EMPLOYEE CONTRIBUTIONS).
(A) ALLOCATION OF AFTER TAX CONTRIBUTIONS. If the Employer selects
Item C(2)(b) in the Adoption Agreement, the Employer will deduct
from the Participant's pay and allocate to
PAGE 22
each Participant's After Tax Contribution Account an amount equal
to the percentage of Compensation authorized by the Participant
as an After Tax Contribution. The Employer shall transmit After
Tax Contributions to the Trustee within thirty (30) days after
the month end in which such deductions are made.
(B) EMPLOYEE AUTHORIZES AFTER TAX CONTRIBUTIONS. To the extent
provided in the Adoption Agreement, a Participant may elect to
make After Tax Contributions under the Plan.
(1) ELECTION TO MAKE AFTER TAX CONTRIBUTIONS. An Employee may
elect to make After Tax Contributions as of his or her Entry
Date as described in Section 2.1(B). Such election will not
become effective before the Entry Date.
(2) MODIFICATION AND TERMINATION OF AFTER TAX CONTRIBUTIONS. A
Participant's election to commence After Tax Contributions
shall remain in effect until modified or terminated. A
Participant may increase or decrease his or her After Tax
Contributions as selected by the Employer in Item C(3) of
the Adoption Agreement upon written notice to the
Committee. A Participant may terminate his or her election
to make After Tax Contributions at any time as of the
Participant's next wage payment date upon written notice to
the Committee. Any Participant who terminates After Tax
Contributions may elect to recommence making After Tax
Contributions as of the date selected by the Employer in
Item C(3) of the Adoption Agreement following his or her
suspension of contributions.
(C) MAXIMUM AMOUNT OF AFTER TAX CONTRIBUTIONS. A Participant's
After Tax Contributions are subject to any limitations imposed in
Item C(3) of the Adoption Agreement, calculated on an annual
basis, and any further limitations under the Plan.
(D) CASH BONUSES. If Item C(2)(c) of the Adoption Agreement is
selected, a Participant may also enter into a salary reduction
agreement on cash bonuses, directing that the amount of such
salary reduction be contributed to the Plan as an After Tax
Contribution, or received by the Participant in cash. A
Participant shall be afforded a reasonable period to elect to
defer amounts described in this Section 3.3 to the Plan. Such
election shall not become effective before the Participant's
Entry Date.
3.4 EMPLOYER CONTRIBUTIONS.
(A) MATCHING CONTRIBUTIONS. If elected by the Employer in the Adoption
Agreement, the Employer will or may make Matching Contributions
to the Plan. The amount of such Matching Contributions shall be
calculated by reference to the Participants' Before Tax Contributions
and/or After Tax Contributions as specified by the Employer in the
Adoption Agreement.
(B) QUALIFIED MATCHING CONTRIBUTIONS. If elected by the Employer in the
Adoption Agreement, the Employer may make Qualified Matching
Contributions to the Plan.
In addition, in lieu of distributing Excess Contributions as provided
in Section 3.2(G) of the Plan, or Excess Aggregate Contributions as
provided in Section 3.5(C) of the Plan, the Employer may make
Qualified Matching Contributions on behalf of Employees that are
PAGE 23
sufficient to satisfy either the Actual Deferral Percentage or the
Average Contribution Percentage test, or both, pursuant to regulations
under the Code.
(C) QUALIFIED NON-ELECTIVE CONTRIBUTIONS. If elected by the Employer in
the Adoption Agreement, the Employer may make Qualified Non-elective
Contributions to the Plan.
In addition, in lieu of distributing Excess Contributions as provided
in Section 3.2(G) of the Plan, or Excess Aggregate Contributions as
provided in Section 3.5(C) of the Plan, the Employer may make
Qualified Non-elective Contributions on behalf of Employees that are
sufficient to satisfy either the Actual Deferral Percentage or the
Average Contribution Percentage test, or both, pursuant to regulations
under the Code.
(D) SEPARATE ACCOUNTS. An Employer Matching Account shall be maintained
for a Participant's accrued benefit attributable to Matching
Contributions. A Qualified Matching Contribution Account shall be
maintained for a Participant's accrued benefit attributable to
Qualified Matching Contributions. A Qualified Non-elective
Contribution Account shall be maintained for a Participant's accrued
benefit attributable to Qualified Non-elective Contributions. Such
accounts shall be credited with the applicable contributions, earnings
and losses, distributions, and other adjustments.
(E) VESTING. Matching Contributions will be vested in accordance with the
Employer's election in Items C(4)(d) and C(4)(e) of the Adoption
Agreement. In any event, Matching Contributions shall be fully vested
at Normal Retirement Date, upon the complete or partial termination of
the Plan, or upon the complete discontinuance of Matching
Contributions, as applicable. Qualified Non-elective Contributions and
Qualified Matching Contributions are nonforfeitable when made.
(F) FORFEITURES. Forfeitures of Matching Contributions shall be used to
reduce such contributions, or shall be allocated to Participants, in
accordance with the Employer's election in Item C(6) of the Adoption
Agreement.
(G) ALLOCATION OF DISCRETIONARY MATCHING CONTRIBUTIONS. If the Employer
selects Item C(4)(b) in the Adoption Agreement, any discretionary
Matching Contributions shall be allocated as of the allocation date
specified in Item C(4)(c)(ii) of the Adoption Agreement, to the
Employer Matching Account of each Participant who has made Before Tax
Contributions and/or After Tax Contributions eligible for matching. If
Item C(4)(c)(ii)(e) has been selected (imposing a last day of the Plan
Year requirement) the allocation shall be made to a Participant who
(1) if a Participant in a nonstandardized Plan, is employed or on
leave of absence on the last day of the Plan Year, and (2) if a
Participant in a standardized Plan, either completes more than 500
Hours of service during the Plan Year or is employed on the last day
of the Plan Year. The following Participants will also share in the
Matching Contributions for the year, if elected in the Adoption
Agreement: (1) Participants in a nonstandardized Plan whose employment
terminated before the end of the Plan Year because of retirement,
death, disability or as specified in the Adoption Agreement, and (2)
Participants in a standardized Plan whose employment terminated before
the end of the Plan Year because of retirement, death, disability or
as specified in the Adoption Agreement, and completed 500 Hours of
Service or less. Notwithstanding the foregoing, if the Employer makes
a contribution prior to the end of the Plan Year, Participants shall
be
PAGE 24
entitled to an allocation of that contribution when made, without
regard to any end of the Plan Year requirement.
(H) LIMITATION ON EMPLOYER CONTRIBUTIONS. The Employer's contributions for
any Plan Year shall not exceed the maximum amount which the Employer
may deduct pursuant to Section 404 of the Code.
3.5 LIMITATIONS ON AFTER TAX CONTRIBUTIONS (EMPLOYEE CONTRIBUTIONS) AND
MATCHING CONTRIBUTIONS.
(A) CONTRIBUTION PERCENTAGE. The ACP for Participants who are Highly
Compensated Employees for each Plan Year and the ACP for Participants
who are Non-highly Compensated Employees for the same Plan Year must
satisfy one of the following tests:
(1) 1.25 LIMIT. The ACP for Participants who are Highly Compensated
Employees for the Plan Year shall not exceed the ACP for
Participants who are Non-highly Compensated Employees for the
same Plan Year by 1.25, or
(2) 2.0 LIMIT. The ACP for Participants who are Highly Compensated
Employees for the Plan Year shall not exceed the ACP for
Participants who are Non-highly Compensated Employees for the
same Plan Year multiplied by two (2), provided that the ACP for
Participants who are Highly Compensated Employees does not exceed
the ACP for Participants who are Non-highly Compensated Employees
by more than two (2) percentage points.
(B) SPECIAL RULES.
(1) MULTIPLE USE. If one or more Highly Compensated Employees
participate in both a cash or deferred arrangement and a Plan
subject to the ACP test maintained by the Employer and the sum of
the ADP and ACP of those Highly Compensated Employees subject to
either or both tests exceeds the Aggregate Limit, then the ACP of
those Highly Compensated Employees who also participate in a cash
or deferred arrangement will be reduced (beginning with such
Highly Compensated Employee whose ACP is the highest) so that the
limit is not exceeded. The amount by which each Highly
Compensated Employee's Contribution Percentage amounts is reduced
shall be treated as an Excess Aggregate Contribution. The ADP and
ACP of the Highly Compensated Employees are determined after any
corrections required to meet the ADP and ACP tests. Multiple use
does not occur if either the ADP and ACP of the Highly
Compensated Employees does not exceed 1.25 multiplied by the ADP
and ACP of the Non-highly Compensated Employees.
(2) AGGREGATION OF CONTRIBUTION PERCENTAGES. For purposes of this
section, the Contribution Percentage for any Participant who is a
Highly Compensated Employee and who is eligible to have
Contribution Percentage Amounts allocated to his or her accounts
under two or more plans described in Section 401(a) of the Code,
or arrangements described in Section 401(k) of the Code, that are
maintained by the Employer, shall be determined as if the total
of such Contribution Percentage Amounts was made under each Plan.
If a Highly Compensated Employee participates in two or more cash
or deferred arrangements that have different Plan
PAGE 25
years all cash or deferred arrangements ending with or within the
same calendar year shall be treated as a single arrangement.
Notwithstanding the foregoing, certain plans shall be treated as
separate if mandated to be disaggregated under regulations under
Section 401(m) of the Code.
(3) AGGREGATION OF PLANS. In the event that this Plan satisfies the
requirements of Sections 401(m), 401(a)(4) or 410(b) of the
Code only if aggregated with one or more other plans, or if one
or more other plans satisfy the requirements of such sections of
the Code only if aggregated with this Plan, then this section
shall be applied by determining the Contribution Percentage of
Employees as if all such plans were a single Plan. For Plan Years
beginning after December 31, 1989, plans may be aggregated in
order to satisfy Section 401(m) of the Code only if they have
the same Plan Year.
(4) FAMILY AGGREGATION. For purposes of determining the Contribution
Percentage of a Participant who is a five-percent owner or one of
the ten most highly-paid Highly Compensated Employees, the
Contribution Percentage Amounts and Compensation of such Employee
shall include the Contribution Percentage Amounts and
Compensation for the Plan Year of Family Members, as defined in
Section 414(q)(6) of the Code. Family Members, with respect to
Highly Compensated Employees, shall be disregarded as separate
employees in determining the Contribution Percentage both for
Participants who are Non-highly Compensated Employees and for
Participants who are Highly Compensated Employees.
(5) TIME OF CONTRIBUTIONS. For purposes of determining the
Contribution Percentage test, After Tax Contributions are
considered to have been made in the Plan Year in which
contributed to the Trust. Matching Contributions and Qualified
Non-elective Contributions will be considered made for a Plan
Year if made no later than the end of the twelve-month period
beginning on the day after the close of the Plan Year.
(6) RECORDS. The Employer shall maintain records sufficient to
demonstrate satisfaction of the ACP test and the amount of
Qualified Non-elective Contributions or Qualified Matching
Contributions, or both, used in such test.
(7) REGULATIONS. The determination and treatment of the Contribution
Percentage of any Participant shall satisfy such other
requirements as may be prescribed by the Secretary of the
Treasury.
(C) DISTRIBUTION OF EXCESS AGGREGATE CONTRIBUTIONS.
(1) GENERAL RULE. Notwithstanding any other provision of this Plan,
Excess Aggregate Contributions, plus any income and minus any
loss allocable thereto, shall be forfeited, if forfeitable, or
if not forfeitable, distributed no later than the last day of
each Plan Year to Participants to whose accounts Excess Aggregate
Contributions were allocated for the preceding Plan Year. Excess
Aggregate Contributions of Participants who are subject to the
Family Member aggregation rules shall be allocated among the
Family Members in proportion to the After Tax and Matching
Contributions (or amounts treated as Matching Contributions) of
each Family
PAGE 26
Member that is combined to determine the combined ACP. If such
Excess Aggregate Contributions are distributed more than 2-1/2
months after the last day of the Plan Year in which such excess
amounts arose, a ten (10) percent excise tax will be imposed on
the Employer maintaining the Plan with respect to those amounts.
Excess Aggregate Contributions shall be treated as Annual
Additions under the Plan.
(2) DETERMINATION OF INCOME OR LOSS. Excess Aggregate Contributions
shall be adjusted for income or loss up to the date of
distribution. The income or loss allocable to Excess Aggregate
Contributions is the sum of: (1) income or loss allocable to the
Participant's After Tax Contribution Account, Matching
Contribution Account, Qualified Matching Contribution Account,
(if any, and if all amounts therein are not used in the ADP test)
and, if applicable, the Qualified Non-elective Contribution
Account and Before Tax Contribution Account for the Plan Year
multiplied by a fraction, the numerator of which is such
Participant's Excess Aggregate Contributions for the year and the
denominator is the Participant's account balance(s) attributable
to Contribution Percentage Amounts without regard to any income
or loss occurring during such Plan Year; and (2) ten percent of
the amount determined under (1) multiplied by the number of whole
calendar months between the end of the Plan Year and the date of
distribution, counting the month of distribution if distribution
occurs after the 15th of such month.
(3) FORFEITURES OF EXCESS AGGREGATE CONTRIBUTIONS. Forfeitures of
Excess Aggregate Contributions may either be reallocated to the
accounts of Non-Highly Compensated Employees or applied to reduce
Employer Contributions, as elected by the Employer in Item
C(6)(c) of the Adoption Agreement.
(4) ACCOUNTING FOR EXCESS AGGREGATE CONTRIBUTIONS. Excess Aggregate
Contributions shall be forfeited, if forfeitable, or distributed
on a pro-rata basis from the Participant's After Tax Contribution
Account and Matching Contribution Account and Qualified Matching
Contribution Account (and, if applicable, the Participant's
Qualified Non-elective Contribution Account and Before Tax
Contribution Account, or both).
3.6 NET PROFITS NOT REQUIRED IF SO ELECTED IN ADOPTION AGREEMENT. If the
Employer elects, Matching Contributions may be made without regard to Net
Profits in accordance with Item C(4)(c)(iii) of the Adoption Agreement. If
the Plan is a profit-sharing Plan, the Plan shall continue to be designed
to qualify as a profit-sharing Plan for purposes of Sections 401(a), 402,
412, and 417 of the Code. Net Profits shall not be required for Before Tax
Contributions or After Tax Contributions to be made to the Plan.
3.7 FORM, PAYMENT AND ALLOCATION OF CONTRIBUTIONS. All contributions under this
Article III made for a Plan Year shall be made in cash, and shall be
delivered to the Trustee at such time or times as shall be agreed upon
between the Committee and the Trustee. The Committee shall instruct the
Trustee as to the allocation of contributions to the Participant's
accounts.
PAGE 27
3.8 DISTRIBUTION REQUIREMENTS FOR BEFORE TAX CONTRIBUTION ACCOUNT. Before Tax
Contributions, Qualified Non-elective Contributions and Qualified Matching
Contributions, and income allocable to each are not distributable to a
Participant or his or her Beneficiary or Beneficiaries, in accordance with
such Participant's, Beneficiary's or Beneficiaries' election, earlier than
upon separation from service, death, disability, or as selected in the
Adoption Agreement. Such amounts may not be distributed unless in
accordance with the Participant's election made pursuant to rules
established by the Committee as authorized in the Adoption Agreement, and
upon:
(A) Termination of the Plan without the establishment of another defined
contribution Plan, other than an employee stock ownership Plan (as
defined in Section 4975(e) or Section 409 of the Code) or a simplified
employee pension Plan as defined in Section 408(k).
(B) The disposition by a corporation to an unrelated corporation of
substantially all of the assets (within the meaning of Section
409(d)(2) of the Code) used in a trade or business of such corporation
if such corporation continues to maintain this Plan after the
disposition, but only with respect to Employees who continue
employment with the corporation acquiring such assets.
(C) The disposition by a corporation to an unrelated entity of such
corporation's interest in a subsidiary (within the meaning of Section
409(d)(3) of the Code) if such corporation continues to maintain this
Plan, but only with respect to Employees who continue employment with
such subsidiary.
(D) The attainment of age 59-1/2 in the case of a profit-sharing Plan, or
the attainment of the Plan's Normal Retirement Date, if either or both
are selected in the Adoption Agreement.
(E) The Hardship of the Participant as described in Section 3.9, if
selected in the Adoption Agreement.
All distributions that may be made pursuant to one or more of the
foregoing distributable events are subject to the spousal and
Participant consent requirements (if applicable) contained in Sections
411(a)(11) and 417 of the Code. In addition, distributions after
March 31, 1988, that are triggered by any of the first three events
above, in Sections 3.8(A), (B) and (C) must be made in a lump sum.
3.9 HARDSHIP DISTRIBUTION.
(A) AMOUNT AVAILABLE FOR WITHDRAWAL. Upon the written request of a
Participant received and approved by the Committee, a Participant may
withdraw, in cash, up to one hundred per cent (100%) of the amount of
such Participant's Before Tax Contributions (and any earnings credited
to a Participant's account as of the end of the last Plan Year ending
before July 1, 1989) or such lesser amount as the Committee may
approve, in the event of Hardship. For purposes of this Section,
Hardship is defined as immediate and heavy financial need of the
Employee where such Employee lacks other available resources. Hardship
distributions are subject to the spousal consent requirements
contained in Sections 411(a)(11) and 417 of the Code. The Committee
is authorized to and shall request from the Participant making such a
request such evidence as the Committee deems necessary and appropriate
to substantiate a Hardship, the amount of expenses resulting
PAGE 28
from such Hardship and the other resources of the Participant
reasonably available to meet such expenses.
(B) SPECIAL RULES:
(1) IMMEDIATE AND HEAVY NEED. The following are the only financial
needs considered immediate and heavy: expenses incurred or
necessary for medical care, described in Section 213(d) of the
Code, of the Employee, the Employee's Spouse or dependents; the
purchase (excluding mortgage payments) of a principal residence
for the Employee; payment of tuition and related educational fees
for the next twelve months of post-secondary education for the
Employee, the Employee's Spouse, children or dependents; or the
need to prevent the eviction of the Employee from, or a
foreclosure on the mortgage of, the Employee's principal
residence.
(2) SATISFACTION OF NEED. A distribution will be considered as
necessary to satisfy an immediate and heavy financial need of the
Employee only if:
(a) The Employee has obtained all distributions, other than
Hardship distributions, and all nontaxable loans under all
plans maintained by the Employer;
(b) All plans maintained by the Employer provide that the
Employee's Before Tax Contributions (and After Tax
Contributions) will be suspended for twelve months after the
receipt of the Hardship distribution;
(c) The distribution is not in excess of an immediate and heavy
financial need (including amounts necessary to pay any
federal, state or local income taxes or penalties reasonably
anticipated to result from the distribution); and
(d) All plans maintained by the Employer provide that the
Employee may not make Before Tax Contributions for the
Employee's taxable year immediately following the taxable
year of the Hardship distribution in excess of the
applicable limit under Section 402(g) of the Code for such
taxable year less the amount of such Employee's Before Tax
Contributions for the taxable year of the Hardship
distribution.
(3) TAXES AND PENALTIES. The amount of an immediate and heavy
financial need may include any amounts necessary to pay any
federal, state or local income taxes or penalties reasonably
anticipated to result from the distribution.
3.10 WITHDRAWAL OF AFTER TAX CONTRIBUTIONS. Subject to the provisions of the
Plan, in accordance with rules for giving notice as determined by the
Committee, a Participant may withdraw as of the first Accounting Date
subsequent to receipt by the Committee of such notice:
(A) MAXIMUM AMOUNT. An amount equal to not more than 100% of the
Participant's After Tax Contribution Account determined as of such
Accounting Date. No Participant who has made any withdrawal of After
Tax Contributions in the twelve (12) months preceding the giving of
such notice may make a withdrawal under this Section. A Participant
who
PAGE 29
makes a withdrawal of After Tax Contributions shall be required to
suspend After Tax Contributions for a period of six (6) months,
commencing with the effective date of such withdrawal. A Participant
may, pursuant to Article III, elect to commence After Tax
Contributions as of the first day of the first payroll period of the
month following the conclusion of such suspension period, or the first
payroll period of any month thereafter, upon advance written notice to
the Committee.
(B) MINIMUM AMOUNT. Notwithstanding anything to the contrary in this
Section 3.10, any withdrawal made pursuant to Section 3.10(A) shall
be for a minimum whole dollar amount not less than Five Hundred
Dollars ($500.00); except that if the amount available for withdrawal
is less than Five Hundred Dollars ($500.00) then the minimum amount of
the withdrawal shall be the amount available.
(C) FORFEITURES. NO forfeitures will occur solely as a result of an
Employee's withdrawal of After Tax Contributions.
(D) LOAN SECURITY. Notwithstanding anything to the contrary in this
Section 3.10, a Participant may not make a withdrawal pursuant to
this Section of any portion of the Participants vested interest which
has been assigned to secure repayment of a loan in accordance with
Section 11.10, below, until such time as the Committee shall have
released said portion so assigned.
3.11. WITHDRAWAL OF MATCHING CONTRIBUTIONS. Subject to the provisions of the
Plan, in accordance with rules for giving notice as determined by the
Committee, and as elected in the Adoption Agreement, a Participant may
withdraw as of the first Accounting Date subsequent to receipt by the
Committee of such notice:
(A) MAXIMUM AMOUNT. An amount equal to not more than 100% of the vested
amounts in the Participant's Matching Contribution Account determined
as of such Accounting Date. No Participant who has made any withdrawal
of Matching Contributions in the twelve (12) months preceding the
giving of such notice may make a withdrawal under this Section.
(B) MINIMUM AMOUNT. Notwithstanding anything to the contrary in this
Section 3.11, any withdrawal made pursuant to Section 3.11(A) shall
be for a minimum whole dollar amount not less than Five Hundred
Dollars ($500.00); except that if the amount available for withdrawal
is less than Five Hundred Dollars ($500.00) then the minimum amount of
the withdrawal shall be the amount available.
(C) FORFEITURES. No forfeitures will occur solely as a result of an
Employee's withdrawal of Matching Contributions.
(D) LOAN SECURITY. Notwithstanding anything to the contrary in this
Section 3.11, a Participant may not make a withdrawal, pursuant to
this Section of any portion of the Participant's vested interest
which has been assigned to secure repayment of a loan in accordance
with Section 11.10, below, until such time as the Committee shall
have released said portion so assigned.
PAGE 30
ARTICLE IV
OTHER CONTRIBUTIONS
4.1 EMPLOYER CONTRIBUTIONS.
(A) MONEY PURCHASE PENSION PLANS ONLY. As elected by the Employer in the
Adoption Agreement, the Employer shall make contributions to the Plan.
(B) PROFIT SHARING PLANS AND 401(k) PLANS ONLY.
(1) EMPLOYER CONTRIBUTIONS. For each Plan Year, the Employer, shall
or may make contributions to the Plan in an amount as selected in
the Adoption Agreement or determined by Resolution of the Board
of Directors of the Employer.
(2) NET PROFITS NOT REQUIRED IF SO ELECTED IN ADOPTION AGREEMENT. If
the Employer elects, Employer Contributions under a profit
sharing Plan may be made without regard to Net Profits in
accordance with Item B(8)(a)(iii) of the Adoption Agreement. The
Plan shall continue to be designed to qualify as a profit-sharing
Plan for purposes of Sections 401(a), 402, 412, and 417 of the
Code.
4.2 SEPARATE ACCOUNTS. An Employer Contribution Account shall be maintained for
each Participant to which will be credited the employer pension or profit
sharing contributions ("Employer Contributions"). Such accounts shall be
credited with the applicable contributions, earnings and losses,
distributions, and other adjustments.
4.3 VESTING. Employer Contributions will be vested in accordance with the
Employer's election in Item B(7), as applicable, of the Adoption Agreement.
In any event, Employer Contributions shall be fully vested at Normal
Retirement Date, upon the complete or partial termination of the Plan, and,
in profit sharing plans, upon the complete discontinuance of Employer
Contributions.
4.4 LIMITATION ON EMPLOYER CONTRIBUTIONS. The Employer's Contribution for any
Plan Year shall not exceed the maximum amount which the Employer may deduct
pursuant to Section 404 of the Code. The Employer Contributions shall be
payable not later than the time for filing the Employer's federal income
tax return, including extensions.
4.5 EMPLOYEE CONTRIBUTIONS.
(A) DISTRIBUTIONS FROM QUALIFIED PLANS - ROLLOVERS.
(1) If the Employer selects Item B(9) in the Adoption Agreement, an
Employee who is entitled to make a rollover contribution
described in Section 402(a)(5), Section 403(a)(4) or Section
408(d)(3) of the Code ("Rollover Contribution"), may elect, with
the approval of the Committee, to make such a Rollover
Contribution to the Plan. The Employee shall deliver or cause to
be delivered, to the Trustee the cash which constitutes such
Rollover Contribution at such time or times and in such manner as
shall be specified by the Committee. As of the date of receipt of
such property by the Trustee, a Rollover Account shall be
established in the name of the Employee who has made a Rollover
Contribution as provided in this Section 4.5
PAGE 31
and shall be credited with such assets on such date. A Rollover
Contribution shall not be deemed to be a contribution of such
Employee for any purpose of this Agreement. All Rollover
Contributions and the earnings on these contributions shall be
immediately fully vested and nonforfeitable.
(2) Subject to the provisions of the Plan, on advance notice given to
the Committee in accordance with rules established by the
Committee a Participant in a profit sharing Plan or 401(k)
profit sharing Plan may withdraw all or any part (in any whole
dollar amount specified by the Participant) of the value of any
Rollover Account, provided no Participant who has made any
withdrawal under Section 4.5(A) during the calendar year in which
such notice is given may make an additional withdrawal under this
Section 4.5(A) during the remainder of such year.
(B) NONDEDUCTIBLE EMPLOYEE CONTRIBUTIONS AND MATCHING CONTRIBUTIONS NO
LONGER ACCEPTED.
(1) This Plan will not accept nondeductible employee contributions
and matching contributions except pursuant to a 401(m)
arrangement described in Article III. Employee contributions for
Plan Years beginning after December 31, 1986, together with any
matching contributions as defined in Section 401(m) of the Code,
will be limited so as to meet the nondiscrimination test of
Section 401(m).
(2) A separate account will be maintained by the Trustee for the
previously made nondeductible employee contributions of each
Participant.
(3) Employee contributions and earnings thereon will be
nonforfeitable at all times. No forfeitures will occur solely as
a result of an Employee's withdrawal of Employee contributions.
(C) DEDUCTIBLE EMPLOYEE CONTRIBUTIONS NO LONGER ACCEPTED. The Committee
will not accept deductible Employee contributions which are made for a
taxable year beginning after December 31, 1986. Contributions made
prior to that date will be maintained in a separate account which will
be nonforfeitable at all times. The account will share in the gains
and losses of the Trust Fund in the same manner as described in
Article VI of the Plan. No part of the deductible voluntary
contribution account will be used to purchase life insurance. Subject
to Section 7.10, Joint and survivor annuity requirements (if
applicable), the Participant may withdraw any part of the deductible
voluntary contribution account by making a written application to the
Committee.
4.6 EXCLUSIVE BENEFIT. Except as provided in the Plan, the Employer has no
beneficial interest in the Trust Fund, and no part of the Trust Fund shall
revert or be repaid to the Employer, directly or indirectly, or diverted to
purposes other than for the exclusive benefit of Participants and their
Beneficiaries, except that (1) any contribution made by the Employer
because of a mistake of fact must be returned to the Employer within one
year of the contribution; (2) in the event the deduction of a contribution
made by the Employer is disallowed under Section 404 of the Code, such
contribution (to the extent disallowed) must be returned to the Employer
within one year of the disallowance of the deduction; and (3) in the event
that the Commissioner of Internal Revenue determines that the Plan is not
initially qualified under the Internal Revenue Code, any
PAGE 32
contribution made incident to that initial qualification by the Employer
must be returned to the Employer within one year after the date the initial
qualification is denied, but only if the application for the qualification
is made by the time prescribed by law for filing the Employer's return for
the taxable year in which the Plan is adopted or such later date as the
Secretary of the Treasury may prescribe.
4.7 FORM, PAYMENT AND ALLOCATION OF CONTRIBUTIONS. Contributions made for a
Plan Year shall be made in cash; provided, however, that if the Plan has an
Employer Stock Fund, contributions for the Employer Stock Fund may be made
in Employer Stock. Contributions shall be delivered to the Trustee at such
time or times as shall be agreed upon between the Committee and the
Trustee. The Committee shall instruct the Trustee as to the allocation of
contributions to the Participant's accounts pursuant to the elections made
in the Adoption Agreement. Employer Stock contributed to the Plan shall be
valued at fair market value at the time of its transfer to the Plan.
4.8 SAFE HARBOR ALLOCATION. Notwithstanding anything to the contrary in the
Adoption Agreement, in the event the requirements of Code Sections
401(a)(26) or 410(b) are not met during the Plan Year, Employer
Contributions will be allocated to Eligible Employees in the following
order until the applicable requirements are met:
(A) Eligible Employees employed by the Employer on the last day of the
Plan Year and who have completed more than 750 Hours of Service during
the Plan Year;
(B) Eligible Employees employed by the Employer on the last day of the
Plan Year and who have completed more than 500 but less than 750 Hours
of Service during the Plan Year;
(C) Eligible Employees employed by the Employer on the last day of the
Plan Year and who have completed 500 or fewer Hours of Service during
the Plan Year;
(D) Eligible Employees who have completed 750 or more Hours of Service
during the Plan Year;
(E) Eligible Employees who have completed more than 500 but less than 750
Hours of Service during the Plan Year.
In no event will Employees who have terminated employment with the
Employer during the Plan Year and who have completed 500 or fewer
Hours of Service during the Plan Year receive any allocation of
Employer Profit Sharing Contributions.
ARTICLE V
PERIOD OF PARTICIPATION
5.1 TERMINATION DATES. A Participant's Termination Date will be the date on
which his employment with the Employer is terminated because of the first
to occur of the following events:
(A) NORMAL RETIREMENT. The Participant retires from the employ of the
Employer upon attaining the Normal Retirement Date selected in the
Adoption Agreement. If the Employer enforces a mandatory retirement
age the Normal Retirement Date is the date the
PAGE 33
Participant attains the lesser of that mandatory age or the age
specified in the Adoption Agreement.
(B) EARLY RETIREMENT. The Participant retires from the employ of the
Employer upon attaining the Early Retirement Date selected in the
Adoption Agreement. If a Participant terminates employment prior to
meeting any minimum age specified in the Adoption Agreement but after
having completed the specified minimum service requirement, the
terminated Participant shall be entitled to an early retirement
benefit upon attaining the minimum age required.
(C) LATE RETIREMENT. The Participant retires from the employ of the
Employer after the Normal Retirement Date. A Participant who continues
to work beyond the Normal Retirement Date shall continue participation
in the Plan on the same basis as the other Participants.
(D) DISABILITY RETIREMENT. The Participant is terminated from the employ
of the Employer because of Disability, as determined by the Committee,
as defined in Section 1.1(I), irrespective of his age.
(E) DEATH. The Participant's death.
(F) OTHER TERMINATION. The Participant terminates employment before
Normal, Early, Late or Disability Retirement.
If a Participant continues in the employ of the Employer but no longer
is a member of a class of Employees to which the Plan has been and
continues to be extended by the Employer, the Participant's
Termination Date nevertheless will be as stated above and his or her
accounts will be held as stated in Section 5.2.
5.2 RESTRICTED PARTICIPATION. When distribution of part or all of the benefits
to which a Participant is entitled under the Plan is deferred beyond or
cannot be made until after the Participant's Termination Date, or during
any period that a Participant continues in the employ of the Employer but
no longer is a member of a class of Employees to which the Plan has been
and continues to be extended by the Employer, the Participant, or in the
event of his or her death such Participant's Beneficiary, will be
considered and treated as a Participant for all purposes of the Plan,
except that no share of contributions or forfeitures will be credited to
his or her Accounts (a) for any period such Participant continues in the
employ of the Employer but no longer is a member of a class of Employees to
which the Plan has been and continues to be extended by the Employer, or
(b) after the Participant's Termination Date.
ARTICLE VI
ACCOUNTING
6.1 ACCOUNTS ESTABLISHED. There shall be established and maintained for each
Participant such accounts as are applicable, to reflect such Participant's
interest in each Investment Fund.
All income, expenses, gains and losses attributable to each account shall
be separately accounted for. The interest of each Participant in the Trust
Fund at any time shall consist of the amount
PAGE 34
credited to his or her accounts as of the last preceding Valuation Date
plus credits and minus debits to such accounts since that date.
6.2 EMPLOYER CONTRIBUTIONS CONSIDERED MADE ON LAST DAY OF PLAN YEAR. Unless
otherwise elected in the Adoption Agreement, for purposes of this Article
VI, the Employer's Contribution under Article IV will be considered to have
been made on the last day of the Plan Year for which contributed.
6.3 ACCOUNTING STEPS. As of each Valuation Date, the Trustee shall:
(A) Charge to the prior account balances all previously uncharged payments
or distributions made from Participants' accounts since the last
preceding Valuation Date.
(B) Adjust the net credit balances in Participants' accounts upward or
downward, pro rata, so that the total of such net credit balances will
equal the then adjusted net worth of the Trust Fund;
(C) Allocate and credit Employer Contributions and any forfeitures (as
described in Section 7.3) that are to be allocated and credited as of
that date in accordance with Sections 6.5 and 6.6.
Notwithstanding the preceding, the Trustee shall be authorized to
utilize such other method of accounting for the gains or losses
experience by the Trust as may accurately reflect each Participant's
interest therein.
6.4 ALLOCATION OF EMPLOYER CONTRIBUTIONS.
(A) DISCRETIONARY PROFIT SHARING CONTRIBUTIONS.
(1) NONSTANDARDIZED PLANS. If the Plan is a nonstandardized Plan,
Employer Contributions for the Plan Year shall be allocated among
and credited to the Employer Contribution Accounts of each
Participant, including a Participant on leave of absence, who is
entitled to receive a contribution as elected by the Employer in
the Adoption Agreement, pursuant to the formula elected by the
Employer in Item B(8)(b) of the Adoption Agreement If elected in
the Adoption Agreement, Participants whose employment terminated
because of retirement, death or disability before the end of the
Plan Year will share in the contributions for the year if elected
in the Adoption Agreement.
(2) STANDARDIZED PLANS. Employer Contributions for the Plan Year
shall be allocated among and credited to the Employer
Contribution Account of each Participant who either completes
more than 500 Hours of Service during the Plan Year (or such
lesser number of Hours of Service as may be specified in the
Adoption Agreement) or is employed on the last day of the Plan
Year pursuant to the formula elected by the Employer in
Item B(8)(b) of the Adoption Agreement. If elected in the
Adoption Agreement, Participants whose employment terminated
before the end of the Plan Year because of retirement, death or
disability will share in the contributions for the year if
elected in the Adoption Agreement.
PAGE 35
(B) MONEY PURCHASE PENSION PLANS. Employer Contributions will be made
and allocated to the Employer Contribution Accounts of Participants
for the Plan Year as elected in the Adoption Agreement. Sections
6.4(A)(1) and (2) above also apply to the Money Purchase Pension
Plans.
(C) PAIRED PLANS. Notwithstanding anything in the Plan to the contrary,
if the Employer maintains two plans which are Paired Plans, only
one may contain an allocation, as elected in the Adoption
Agreement, utilizing permitted disparity as defined in Code Section
401(1).
6.5 ALLOCATION OF FORFEITURES. As elected in Items B(11) and/or C(6) of the
Adoption Agreement, as of the last day of the Plan Year, any forfeitures
which arose under the Plan during that year shall be used to: (i) pay the
expenses of the Plan; (ii) reduce Employer Contributions; or, (iii) be
allocated to Participants accounts, as may be selected in the Adoption
Agreement. Forfeitures under (iii) shall be allocated as provided in
Section 6.4.
6.6 LIMITATION ON ALLOCATIONS.
(A) DEFINITIONS: For purposes of limiting allocations pursuant to this
section, the following definitions shall apply:
(1) ANNUAL ADDITIONS: The sum of the following amounts credited to a
Participant's account for the Limitation Year:
(a) Employer Contributions;
(b) Employee Contributions;
(c) forfeitures;
(d) amounts allocated, after March 31, 1984, to an individual
medical account, as defined in Section 415(1)(2) of the
Code, which is part of a pension or annuity Plan maintained
by the Employer are treated as Annual Additions to a defined
contribution Plan. Also amounts derived from contributions
paid or accrued after December 31, 1985, in taxable years
ending after such date, which are attributable to
post-retirement medical benefits, allocated to the separate
account of a Key Employee, as defined in Section 419A(d)(3)
of the Code, under a welfare benefit fund, as defined in
Section 419(e) of the Code, maintained by the Employer are
treated as Annual Additions to a defined contribution Plan;
and,
(e) allocations under a simplified employee pension.
For this purpose, any Excess Amount applied under Sections
6.6(B)(4) or 6.6(C)(6) in the Limitation Year to reduce Employer
Contributions will be considered Annual Additions for such
Limitation Year.
PAGE 36
(2) COMPENSATION: Compensation as described below, interpreted
consistently with the provisions of Code Section 414(s) and the
regulations issued thereunder, as may be selected by the
Employer, and uniformly applied for testing purpose:
(a) W-2 COMPENSATION (WAGES, TIPS, AND OTHER COMPENSATION
REQUIRED TO BE REPORTED UNDER SECTIONS 6041, 6051, AND 6052
OF THE CODE, AS REPORTED ON FORM W-2). Compensation is
defined as wages within the meaning of Section 3401(a) and
all other payments of compensation to an Employee by the
Employer (in the course of the Employer's trade or business)
for which the Employer is required to furnish the Employee a
written statement under Sections 6041(d), 6051(a)(3) and
6052 of the Code. Compensation must be determined without
regard to any rules under Section 3401(a) that limit the
remuneration included in wages based on the nature or
location of the employment or the services performed (such
as the exception for agricultural labor in Section
3401(a)(2).
(b) WITHHOLDING COMPENSATION (SECTION 3401(a)). Compensation is
defined as wages within the meaning of Section 3401(a) for
the purposes of 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 (such
as the exception for agricultural labor in Section 3401
(a)(2)).
(c) SECTION 415 SAFE-HARBOR COMPENSATION. Compensation is
defined as wages, salaries, and fees for professional
services and other amounts received (without regard to
whether or not an amount is paid in cash) for personal
services actually rendered in the course of employment with
the Employer maintaining the Plan to the extent that the
amounts are includible in gross income (including, but not
limited to, commissions paid salesman, compensation for
services on the basis of a percentage of profits,
commissions on insurance premiums, tips, bonuses, fringe
benefits, and reimbursements or other expense allowances
under a nonaccountable Plan (as described in 1.62-2(c)),
and excluding the following:
(i) Employer contributions to a Plan of deferred
compensation which are not includible in the Employee's
gross income for the taxable year in which contributed,
or Employer contributions under a simplified employee
pension Plan to the extent such contributions are
deductible by the Employee, or any distributions from a
Plan of deferred compensation;
(ii) amounts realized from the exercise of a non-qualified
stock option, or when restricted stock (or property)
held by an Employee becomes freely transferable or is
no longer subject to a substantial risk of forfeiture;
(iii) amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified stock
option; and
PAGE 37
(iv) other amounts which received special tax benefits,
or contributions made by the Employer (whether or
not under a salary reduction agreement) towards the
purchase of an annuity contract described in
Section 403(b) of the Code (whether or not the
contributions are actually excludable from the
gross income of the Employee).
Notwithstanding anything in the definitions of Compensation
preceding, at the discretion of the Employer, uniformly applied,
Compensation shall, for purposes of ADP and ACP testing as
provided for in Article III, include amounts not currently
includible in income pursuant to Code Sections 125, 402(a)(8),
402(h) and 403(b). For allocation purposes, such amounts shall be
includible as elected in the Adoption Agreement.
For any self-employed Individual, Compensation will mean Earned
Income.
For Limitation Years beginning after December 31, 1991, for
purposes of applying the limitations of Section 6.6, Compensation
for a Limitation Year is the compensation actually paid or made
available during such Limitation Year.
Notwithstanding the preceding sentence, Compensation for a
Participant in a defined contribution Plan who is permanently and
totally disabled (as defined in Section 22(e)(3) of the Code) is
the Compensation such Participant would have received for the
Limitation Year if the Participant had been paid at the rate of
Compensation paid immediately before becoming permanently and
totally disabled; such imputed compensation for the disabled
Participant may be taken into account only if the Participant is
not a Highly Compensated Employee, (as defined in Section 414(q)
of the Code), and contributions made on behalf of such
Participant are nonforfeitable when made.
(3) DEFINED BENEFIT FRACTION: A fraction, the numerator of which is
the sum of the Participant's Projected Annual Benefits under all
the defined benefit plans (whether or not terminated) maintained
by the Employer, and the denominator of which is the lesser of
125 percent of the dollar limitation determined for the
Limitation Year under Sections 415(b) and (d) of the Code or 140
percent of the Participant's Highest Average Compensation,
including any adjustments under Section 415(b) of the Code.
Notwithstanding the above if the Participant was a participant as
of the first day of the first Limitation Year beginning after
December 31, 1986, in one or more defined benefit plans
maintained by the Employer which were in existence on May 6,
1986, the denominator of this fraction will not be less than 125
per cent of the sum of the annual benefits under such plans which
the Participant had accrued as of the close of the last
Limitation Year beginning before January 1, 1987, disregarding
any changes in the terms and conditions of the Plan after May 5,
1986. The preceding sentence applies only if the defined benefit
plans individually and in the aggregate satisfied the
requirements of Section 415 for all Limitation Years beginning
before January 1, 1987.
PAGE 38
(4) DEFINED CONTRIBUTION DOLLAR LIMITATION: For purposes of
calculating the Maximum Permissible Amount: $30,000 or, if
greater, one-fourth of the defined benefit dollar limitation set
forth in Section 415(b)(1) of the Code as in effect for the
Limitation Year.
(5) DEFINED CONTRIBUTION FRACTION: A fraction, the numerator of which
is the sum of the Annual Additions to the Participant's accounts
under all the defined contribution plans (whether or not
terminated) maintained by the Employer for the current and all
prior Limitation Years, (including the Annual Additions
attributable to the Participant's nondeductible employee
contributions to all defined benefit plans, whether or not
terminated, maintained by the Employer, and the Annual Additions
attributable to all welfare benefit funds, as defined in Section
419(e) of the Code, individual medical accounts, as defined in
Section 415(l)(2) of the Code, and simplified employee pension,
maintained by the Employer), and the denominator of which is the
sum of the maximum aggregate amounts for the current and all
prior Limitation Years of service with the Employer (regardless
of whether a defined contribution Plan was maintained by the
Employer). The maximum aggregate amount in any Limitation Year is
the lesser of 125 percent of the dollar limitation determined
under Sections 415(b) and (d) of the Code in effect under Section
415(c)(1)(A) of the Code or 35 percent of the Participant's
Compensation for such year.
If the Employee was a participant as of the end of the first day
of the first Limitation Year beginning after December 31, 1986,
in one or more defined contribution plans maintained by the
Employer which were in existence on May 6, 1986, the numerator of
this fraction will be adjusted if the sum of this fraction and
the Defined Benefit Fraction would otherwise exceed 1.0 under the
terms of this Plan. Under the adjustment, an amount equal to the
product of (1) the excess of the sum of the fractions over 1.0
times (2) the denominator of this fraction, will be permanently
subtracted from the numerator of this fraction. The adjustment is
calculated using the fractions as they would be computed as of
the end of the last Limitation Year beginning before January 1,
1987, and disregarding any changes in the terms and conditions of
the Plan made after May 5, 1986, but using the Section 415
limitation applicable to the first Limitation Year beginning on
or after January 1,1987.
The Annual Addition for any Limitation Year beginning before
January 1, 1987, shall not be recomputed to treat all Employee
contributions as Annual Additions.
(6) EMPLOYER: For purposes of this Section 6.6: the Employer that
adopts this Plan, and all members of a controlled group of
corporations (as defined in section 414(b) of the Code as
modified by Section 415(h), all commonly controlled trades or
businesses (as defined in Section 414(c) as modified by Section
415(h)) or affiliated service groups (as defined in Section
414(m)) of which the adopting Employer is a part, and any other
entity required to be aggregated with the Employer pursuant to
regulations under Section 414(o) of the Code.
PAGE 39
(7) EXCESS AMOUNT: The excess of the Participant's Annual Additions
for the Limitation Year over the Maximum Permissible Amount.
(8) HIGHEST AVERAGE COMPENSATION: For purposes of calculating the
Defined Benefit Fraction, the average compensation for the three
(3) consecutive Years of Service with the Employer that produces
the highest average. A Year of Service with the Employer is the
twelve-consecutive month period defined in Item B(4)(j) of the
Adoption Agreement.
(9) LIMITATION YEAR: A calendar year or any other 12 consecutive
month period elected in Item B(4)(d) of the Adoption Agreement.
All qualified plans maintained by the 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.
(10) MASTER OR PROTOTYPE PLAN: A Plan the form of which is the subject
of a favorable opinion letter from the Internal Revenue Service.
(11) MAXIMUM PERMISSIBLE AMOUNT: The maximum Annual Addition that may
be contributed or allocated to a Participant's account under the
Plan for any Limitation Year shall not exceed the lesser of:
(a) the Defined Contribution Dollar Limitation, or
(b) 25 percent of the Participant's Compensation for the
Limitation Year.
The Compensation limitation referred to in (b) shall not
apply to any contribution for medical benefits (within the
meaning of Section 401(h) or Section 419A(f)(2) of the Code)
which is otherwise treated as an Annual Addition under
Section 415(l)(1) or 419A(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
will not exceed the Defined Contribution Dollar Limitation
multiplied by the following fraction:
Number of months in the short Limitation Year
---------------------------------------------
12
(12) PROJECTED ANNUAL BENEFIT: For purposes of calculating the Defined
Benefit Fraction: the annual retirement benefit (adjusted to an
actuarially equivalent straight life annuity if such benefit is
expressed in a form other than a straight life annuity or
qualified joint and survivor annuity) to which the Participant
would be entitled under the terms of the Plan, assuming: (1) the
Participant will continue employment until Normal Retirement Date
under the Plan, (or current age, if later), and (2) the
Participant's Compensation for the current Limitation Year and
all other relevant factors used to determine benefits under the
Plan will remain constant for all future Limitation Years.
PAGE 40
(B) ANNUAL ADDITION LIMITATIONS:
(1) If the Participant does not participate in, and has never
participated in another qualified Plan or welfare benefit fund,
as defined in Section 419(e) of the Code maintained by the
Employer, or an individual medical account, as defined in Section
415(l)(2) of the Code, maintained by the Employer, or a
simplified employee pension, as defined in Section 408(K) of the
Code, maintained by the Employer which provides an Annual
Addition as defined in Section 6.6(E), the amount of Annual
Additions which may be credited to the Participant's account
for any Limitation Year will not exceed the lesser of the Maximum
Permissible Amount or any other limitation contained in this
Plan. If the Employer Contribution that would otherwise be
contributed or allocated to the Participant's account would cause
the Annual Additions for the Limitation Year to exceed the
Maximum Permissible Amount, the amount contributed or allocated
will be reduced so that the Annual Additions for the Limitation
Year will equal the Maximum Permissible Amount.
(2) Prior to determining the Participant's actual Compensation for
the Limitation Year, the Employer may determine the Maximum
Permissible Amount for a Participant on the basis of a reasonable
estimation of the Participant's Compensation for the Limitation
Year, uniformly determined for all Participants similarly
situated.
(3) As soon as is administratively feasible after the end of the
Limitation Year, the Maximum Permissible Amount for the
Limitation Year will be determined on the basis of the
Participant's actual Compensation for the Limitation Year.
(4) If pursuant to Section 6.6(B)(3) or as result of the allocation
of forfeitures, there is an Excess Amount, the excess will be
disposed of as follows:
(a) Any nondeductible voluntary employee contributions, to the
extent they would reduce the Excess Amount, will be returned
to the Participant.
(b) If after the application of paragraph (a) an Excess Amount
still exists and the Participant is covered by the Plan at
the end of the Limitation Year, the Excess Amount in the
Participant's account will be used to reduce Employer
Contributions (including any allocation of forfeitures) for
such Participant in the next Limitation year, and each
succeeding Limitation Year, if necessary.
(c) If after the application of paragraph (a) an Excess Amount
still exists, and the Participant is not covered by the Plan
at the end of a Limitation Year, the Excess Amount will be
held unallocated in a suspense account. The suspense
account will be applied 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.
PAGE 41
(d) If a suspense account is in existence at any time during a
Limitation Year pursuant to this Section 6.6(A), it will not
participate in the allocation of the trust'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 Contributions or
any Employee contributions may be made to the Plan for that
Limitation Year. Excess Amounts may not be distributed to
Participants or former Participants.
(C) MULTIPLE PLAN LIMITATION.
(1) This Section 6.6(C) applies if, in addition to this Plan, the
Participant is covered under another qualified Master or
Prototype defined contribution Plan maintained by the Employer, a
welfare benefit fund, as defined in Section 419(e) of the Code
maintained by the Employer, or an individual medical account, as
defined in Section 415(l)(2) of the Code, maintained by the
Employer, or a simplified employee pension maintained by the
employer which provides an Annual Addition as defined in
Section 6.6(A) during any Limitation Year. The Annual Additions
which may be credited to a Participant's accounts under this Plan
for any such Limitation Year shall not exceed the Maximum
Permissible Amount reduced by the Annual Additions credited to a
Participant's accounts under the other qualified master and
prototype defined contribution plans, welfare benefit funds,
individual medical accounts, and simplified employee pensions for
the same Limitation Year. If the Annual Additions with respect to
the Participant under other qualified master and prototype
defined contribution plans and welfare benefit funds, individual
medical accounts, and simplified employee pension, maintained by
the Employer are less than the Maximum Permissible Amount and the
contributions that would otherwise be contributed or allocated to
the Participant's Employer Contribution Account under this Plan
would cause the Annual Additions for the Limitation Year to
exceed this limitation, the amount contributed or allocated will
be reduced so that the Annual Additions under all such plans and
funds for the Limitation Year will equal the Maximum Permissible
Amount. If the Annual Additions with respect to the Participant
under such other qualified master and prototype defined
contribution plans, welfare benefit funds individual medical
accounts, and simplified employee pension, in the aggregate are
equal to or greater than the Maximum Permissible Amount, no
amount will be contributed or allocated to the Participant's
Employer Contribution Account under this Plan for the Limitation
Year.
(2) Prior to determining the Participant's actual Compensation for
the Limitation Year, the Employer may determine the Maximum
Permissible Amount for a Participant in the manner described in
Section 6.6(B)(2).
(3) As soon as is administratively feasible after the end of the
Limitation Year, the Maximum Permissible Amount for the
Limitation Year will be determined on the basis of the
Participant's actual Compensation for the Limitation Year.
PAGE 42
(4) If, pursuant to Section 6.6(C)(3) or as a result of the
allocation of forfeitures, a Participant's Annual Additions under
this Plan and all other plans result in an Excess Amount for a
Limitation Year, the Excess Amount shall be deemed to consist of
the amounts last allocated, except that Annual Additions
attributable to a simplified employee pension will be deemed to
have been allocated first, followed by annual additions to a
welfare benefit fund or individual medical account regardless of
the actual allocation date.
(5) If an Excess Amount was allocated to a Participant on an
allocation date of this Plan which coincides with an allocation
date of another Plan, the Excess Amount attributed to this Plan
will be the product of:
(a) the total Excess Amount allocated as of such date, times
(b) the ratio of (i) the Annual Additions allocated to the
Participant for the Limitation Year as of such date under
this Plan to (ii) the total Annual Additions allocated to
the Participant for the Limitation Year as of such date
under this and all other qualified Master or Prototype
defined contribution plans.
(6) Any Excess Amount attributed to this Plan should be disposed of
as provided in Section 6.6(C)(4).
(D) If the Participant is covered under another qualified defined
contribution Plan maintained by the Employer which is not a Master or
Prototype Plan, Annual Additions which may be credited to the
Participant's accounts under this Plan for any Limitation Year will be
limited in accordance with Section 6.6(C) (1-6) as though the Plan
were a Master or Prototype Plan unless the Employer provides other
limitations in Item B(12) of the Adoption Agreement.
(E) If the Employer maintains, or at any time maintained, a qualified
defined benefit Plan covering any Participant in this Plan, the sum of
the Participant's Defined Benefit Plan Fraction and Defined
Contribution Plan Fraction will not exceed 1.0 in any Limitation
Year. The Annual Additions which may be credited to the Participant's
accounts under this Plan for any Limitation Year will be limited in
accordance with Item B(12) of the Adoption Agreement.
6.7 REPORTS TO PARTICIPANTS. The Committee shall cause reports to be made at
least annually to each Participant and to the Beneficiary of each deceased
Participant as to the value of each such Participant's accounts, as of an
appropriate preceding Valuation Date.
ARTICLE VII
PAYMENT OF ACCOUNT BALANCES
7.1 TERMINATION OF EMPLOYMENT UPON DISABILITY OR DEATH. A Participant shall
become fully vested in his or her Employer Contribution Accounts if the
Participant becomes Disabled under Sections 5.1(A), (B), (C) or (D) or
dies while still employed. The accounts of a Participant who retires
becomes Disabled or dies will become distributable to the Participant or to
his or her Spouse or
PAGE 43
Beneficiary. If distributed immediately, subject to Section 7.4, the
distributable balance, after adjustments, will be determined as soon as
practicable following the receipt by the Trustee of written notice of the
Participant's termination from the Committee.
7.2 TIMING FOR DETERMINING ACCOUNT BALANCE UPON TERMINATION OF EMPLOYMENT PRIOR
TO RETIREMENT, DISABILITY OR DEATH. If a Participant terminates employment
with the Employer before retirement under Sections 5.1(F) the vested
portion of the Participant's Employer Contribution Account and/or Matching
Account shall be determined and such Participant's accounts will be
distributable to the Participant. If distributed immediately, subject to
Section 7.4, the distributable balance, after adjustments, will be
determined as soon as practicable following receipt by the Trustee of
written notice of the Participant's termination from the Committee. The
account balance shall be distributable at such time as elected in the
Adoption Agreement, but in no event shall an account balance not be
distributable later than the Participant's Normal Retirement Date.
7.3 VESTING ON DISTRIBUTION BEFORE BREAK-IN-SERVICE; CASH-OUTS.
(A) If an Employee terminates service, and the value of the Employee's
vested account balance derived from Employer and Employee
contributions is not greater than $3,500, the Employee will receive a
distribution of the value of the entire vested portion of such account
balances, and Rollover Account balance, if any. The nonvested portion
will be treated as a forfeiture. For purposes of this Section 7.3, if
the value of an Employee's vested account balance is zero, the
Employee shall be deemed to have received a distribution of such
vested account balance. A Participant's vested account balance shall
not include accumulated deductible employee contributions within the
meaning of Section 72(o)(5)(B) of the Code for Plan Years beginning
prior to January 1, 1989.
(B) If an Employee terminates service, and elects, in accordance with the
requirements of Section 7.4, to receive the value of the Employee's
vested account balance, the nonvested portion will be treated as a
forfeiture. If the Employee elects to have distributed less than the
entire vested portion of the balance in the Employer Contribution
Account, the part of the nonvested portion that will be treated as a
forfeiture is the total nonvested portion multiplied by a fraction,
the numerator of which is the amount of the distribution attributable
to Employer Contributions and the denominator of which is the total
value of the vested balance in the Employer Contribution Account.
(C) If an Employee receives a distribution pursuant to this Section 7.3
and the Employee resumes employment covered under this Plan, the
Employee's Employer Contribution Account and/or Matching Account
balance will be restored to the amount on the date of distribution if
the Employee repays to the Plan the full amount of the distribution
attributable to Employer contributions before the earlier of 5 years
after the first date on which the Participant is subsequently
reemployed by the Employer, or the date the Participant incurs five
(5) consecutive one (1) year Breaks in Service following the date of
the distribution. If an Employee is deemed to receive a distribution
pursuant to this Section 7.3, and the Employee resumes employment
covered under this Plan before the date the Participant incurs five
(5) consecutive one (1) year Breaks in Service, upon the reemployment
of such Employee, the Employer Contribution Account balance and/or
PAGE 44
Matching Account balance of the Employee will be restored to the
amount on the date of such deemed distribution.
7.4 RESTRICTIONS ON IMMEDIATE DISTRIBUTIONS.
(A) If the value of a Participant's vested account balance derived from
Employer and Employee contributions exceeds (or at the time of any
prior distribution exceeded) $3,500, and the account balance is
immediately distributable, the Participant and the Participant's
Spouse (or where either the Participant or the Spouse has died, the
survivor) must consent to any distribution of such account balance.
The consent of the Participant and the Participant's Spouse shall be
obtained in writing within the 90-day period ending on the annuity
starting date. The annuity starting date is the first day of the first
period for which an amount is paid as an annuity or any other form.
The Committee shall notify the Participant and the Participant's
Spouse of the right to defer any distribution until the Participant's
account balance is no longer immediately distributable. Such
notification shall include a general description of the material
features, and an explanation of the relative values of, the optional
forms of benefit available under the Plan in a manner that would
satisfy the notice requirements of Section 417(a)(3), and shall be
provided no less than 30 days and no more than 90 days prior to the
annuity starting date. However, distribution may commence less
than 30 days after the notice described in the preceding sentence is
given, provided the distribution is one to which sections 401(a)(11)
and 417 of the Internal Revenue Code do not apply, the plan
administrator clearly informs the participant that the participant
has a right to a period of at least 30 days after receiving the
notice to consider the decision of whether or not to elect a
distribution (and, if applicable, a particular distribution option),
and the participant after receiving the notice, affirmatively elects
a distribution.
Notwithstanding the foregoing, only the Participant need consent to
the commencement of a distribution in the form of a Qualified Joint
and Survivor Annuity while the account balance is immediately
distributable. (Furthermore, if payment in the form of a Qualified
Joint and Survivor Annuity is not required with respect to the
Participant pursuant to Section 7.10 of the Plan, only the Participant
need consent to the distribution of an account balance that is
immediately distributable. Neither the consent of the Participant nor
the Participant's Spouse shall be required to the extent that a
distribution is required to satisfy Section 401(a)(9) or Section 415
of the Code. In addition, upon termination of this Plan if the Plan
does not offer an annuity option (purchased from a commercial
provider), and if the Employer or any entity within the same
controlled group as the Employer does not maintain another defined
contribution Plan (other than an employee stock ownership Plan as
defined in Section 4975(e)(7) of the Code), the Participant's account
balance will, without the Participant's consent, be distributed to the
Participant. However, if any entity within the same controlled group
as the Employer maintains another defined contribution Plan (other
than an employee stock ownership Plan as defined in Section 4975(e)(7)
of the Code) then the Participant's account balance will be
transferred, without the Participant's consent, to the other Plan if
the Participant does not consent to an immediate distribution.
An account balance is immediately distributable if any part of the
account balance could be distributed to the Participant (or surviving
spouse) before the Participant attains or would have attained if not
deceased) the later of the Normal Retirement Date or age 62.
PAGE 45
(B) For purposes of determining the applicability of the foregoing consent
requirements to distributions made before the first day of the first
Plan Year beginning after December 31, 1988, the Participant's vested
account balance shall not include amounts attributable to accumulated
deductible employee contributions within the meaning of Section
72(o)(5)(B) of the Code.
7.5 COMMENCEMENT OF BENEFITS. Unless the Participant elects otherwise, payments
will be made or commence to a Participant by the Trustee, as directed by
the Committee, no later than the sixtieth (60th) day after the latest of
the close of the Plan Year in which (1) the Participant attains age
sixty-five (65) (or Normal Retirement Date; if earlier); (2) occurs the
tenth (10th) anniversary of the year in which the Participant commenced
participation in the Plan; or (3) the Participant terminates his or her
service with the Employer.
Notwithstanding the foregoing, the failure of a Participant and Spouse to
consent to a distribution while a benefit is immediately distributable,
within the meaning of Section 7.4 of the Plan, shall be deemed to be an
election to defer commencement of payment of any benefit sufficient to
satisfy this section.
7.6 TIMING AND MODES OF DISTRIBUTION.
(A) GENERAL RULES.
(1) Subject to Section 7.10, Joint and Survivor Annuity Requirements,
the requirements of this Section 7.6 shall apply to any
distribution of a Participant's interest and will take precedence
over any inconsistent provisions of this Plan. Unless otherwise
specified, the provisions of this Section 7.6 apply to calendar
years beginning after December 31, 1984.
(2) All distributions required under this Section 7.6 shall be
determined and made in accordance with the Income Tax Regulations
under Section 401(a)(9), including the minimum distribution
incidental benefit requirement of Section 1.401(a)(9)-2 of the
regulations.
(3) The normal form of payment for a profit-sharing Plan satisfying
the requirements of Section 7.10(F) hereof shall be a single sum
with no option for annuity payments; provided, however, that
distributions may be made:
(a) In installment payments, if the Employer has elected
installment payments in Item B(10)(a) of the Adoption
Agreement;
(b) Through such other form of benefit as may be identified in
Item B(10)(a) of the Adoption Agreement, which shall be
available to Participants as an optional form of benefit
payment, and shall preclude Employer discretion;
(c) Through such other form of benefits as may be required to be
protected as Section 411(d)(6) protected benefits.
PAGE 46
(B) REQUIRED BEGINNING DATE. The entire interest of a Participant must be
distributed or begin to be distributed no later than the Participant's
required beginning date.
(C) LIMITS ON DISTRIBUTION PERIODS. As of the first distribution calendar
year, distributions, if not made in a single-sum, may only be made
over one of the following periods (or a combination thereof):
(1) the life of the Participant,
(2) the life of the Participant and a designated Beneficiary,
(3) a period certain not extending beyond the life expectancy of the
Participant, or
(4) a period certain not extending beyond the joint and last survivor
expectancy of the Participant and a designated Beneficiary.
(D) DETERMINATION OF AMOUNT TO BE DISTRIBUTED EACH YEAR. If the
Participant's interest is to be distributed in other than a single
sum, the following minimum distribution rules shall apply on or after
the required beginning date:
(1) INDIVIDUAL ACCOUNT.
(a) If a Participant's benefit is to be distributed over:
(i) a period not extending beyond the life expectancy of
the participant or the joint life and last survivor
expectancy of the Participant and the Participant's
designated Beneficiary; or
(ii) a period not extending beyond the life expectancy of
the designated Beneficiary, the amount required to be
distributed for each calendar year, beginning with
distributions for the first distribution calendar year,
must at least equal the quotient obtained by dividing
the Participant's benefit by the applicable life
expectancy.
(b) For calendar years beginning before January 1, 1989, if the
Participant's Spouse is not the designated beneficiary, the
method of distribution selected must assure that at least
50% of the present value of the amount available for
distribution is paid within the life expectancy of the
Participant.
(c) For calendar years beginning after December 31, 1988, the
amount to be distributed each year, beginning with
distributions for the first distribution calendar year shall
not be less than the quotient obtained by dividing the
Participant's benefit by the lesser of (1) the applicable
life expectancy or (2) if the Participant's Spouse is not
the designated Beneficiary, the applicable divisor
determined from the table set forth in Q&A-4 of Section
1.401(a)(9)-2 of the Income Tax Regulations. Distributions
after the death of the Participant shall be distributed
using the applicable life expectancy in
PAGE 47
Section (1)(a) above as the relevant divisor without regard
to Regulations Section 1.401(a)(9)-2.
(d) The minimum distribution required for the Participant's
first distribution calendar year must be made on or before
the Participant's required beginning date. The minimum
distribution for other calendar years, including the minimum
distribution for the distribution calendar year in which the
Employee's required beginning date occurs, must be made on
or before December 31 of that distribution calendar year.
(2) OTHER FORMS. If the Participant's benefit is distributed in the
form of an annuity purchased from an insurance company,
distributions thereunder shall be made in accordance with the
requirements of Section 401(a)(9) of the Code and the regulations
thereunder.
(E) DEATH DISTRIBUTION PROVISIONS
(1) DISTRIBUTION BEGINNING BEFORE DEATH. If the Participant dies
after distribution of his or her interest has begun, the
remaining portion of such interest will continue to be
distributed at least as rapidly as under the method of
distribution being used prior to the Participant's death.
(2) DISTRIBUTION BEGINNING AFTER DEATH. If the Participant dies
before distribution of his or her interest begins, distribution
of the Participant's entire interest shall be completed by
December 31 of the calendar year containing the fifth anniversary
of the Participant's death except to the extent that an election
is made to receive distributions in accordance with (a) or (b)
below:
(a) if any portion of the Participant's interest is payable to a
designated Beneficiary, distributions may be made over the
life or over a period certain not greater than the life
expectancy of the designated Beneficiary commencing on or
before December 31 of the calendar year immediately
following the calendar year in which the Participant died;
(b) if the designated Beneficiary is the Participant's surviving
Spouse, the date distributions are required to begin in
accordance with (a) above shall not be earlier than the
later of (1) December 31 of the calendar year immediately
following the calendar year in which the Participant died
and (2) December 31 of the calendar year in which the
Participant would have attained age 70-1/2.
If the Participant has not made an election pursuant to this
Section 7.6(E)(2) by the time of his or her death, the
Participant's designated Beneficiary must elect the method
of distribution no later than the earlier of (1) December 31
of the calendar year in which distributions would be
required to begin under this section, or (2) December 31 of
the calendar year in which contains the fifth anniversary of
the date of death of the Participant. If the Participant has
no designated Beneficiary, or if the
PAGE 48
designated Beneficiary does not elect a method of
distribution, distribution of the Participant's entire
interest must be completed by December 31 of the calendar
year containing the fifth anniversary of the Participant's
death.
(3) SURVIVING SPOUSE'S DEATH. For purposes of Section (E)(2) above,
if the surviving Spouse dies after the Participant, but before
payments to such Spouse begin, the provisions of Section (E)(2)
with the exception of paragraph (b) therein, shall be applied as
if the surviving Spouse were the Participant.
(4) MINOR BENEFICIARY. For purposes of this Section (E), any amount
paid to a child of the Participant will be treated as if it had
been paid to the surviving Spouse if the amount becomes payable
to the surviving Spouse when the child reaches the age of
majority.
(5) DISTRIBUTION CONSIDERED TO BEGIN ON REQUIRED BEGINNING DATE. For
the purposes of this Section (E), distribution of a Participant's
interest is considered to begin on the Participant's required
beginning date (or, if Section (E)(3) above is applicable, the
date distribution is required to begin to the surviving Spouse
pursuant to Section (E)(2) above). If distribution in the form of
an annuity irrevocably commences to the Participant before the
required beginning date, the date distribution is considered to
begin is the date distribution actually commences.
(F) DEFINITIONS.
(1) APPLICABLE LIFE EXPECTANCY: The life expectancy (or joint and
last survivor expectancy) calculated using the attained age of
the Participant (or designated Beneficiary) as of the
Participant's (or designated Beneficiary's) birthday in the
applicable calendar year reduced by one for each calendar year
which has elapsed since the date life expectancy was first
calculated. If life expectancy is being recalculated, the
applicable life expectancy shall be the life expectancy as so
recalculated. The applicable calendar year shall be the first
distribution calendar year, and if life expectancy is being
recalculated such succeeding calendar year.
(2) DESIGNATED BENEFICIARY: The individual who is designated as
the Beneficiary under the Plan in accordance with Section
401(a)(9) and the proposed regulations thereunder.
(3) DISTRIBUTION CALENDAR YEAR: A calendar year for which a
minimum distribution is required. For distributions beginning
before the Participant's death, the first distribution calendar
year is the calendar year immediately preceding the calendar
year which contains the Participant's required beginning date.
For distributions beginning after the Participant's death, the
first distribution calendar year is the calendar year in which
distributions are required to begin pursuant to Section (E)
above.
(4) LIFE EXPECTANCY: Life expectancy and joint and last survivor
expectancy are computed by use of the expected return
multiples in Tables V and VI of Section 1.72-9 of the Income
Tax Regulations.
PAGE 49
Unless otherwise elected by the Participant (or Spouse, in the
case of distributions described in Section (E)(2)(b) above) by
the time distributions are required to begin, life
expectancies shall be recalculated annually. Such election
shall be irrevocable as to the Participant (or Spouse) and
shall apply to all subsequent years. The life expectancy of a
non-spouse Beneficiary may not be recalculated.
(5) PARTICIPANT'S BENEFIT:
(a) The account balance as of the last valuation date in the
calendar year immediately preceding the distribution
calendar year (valuation calendar year) increased by the
amount of any contributions or forfeitures allocated to
the account balance as of dates in the valuation calendar
year after the valuation date and decreased by
distributions made in the valuation calendar year after
the valuation date.
(b) Exception for second distribution calendar year. For
purposes of paragraph (a) above, if any portion of the
minimum distribution for the first distribution calendar
year is made in the second distribution calendar year on
or before the required beginning date, the amount of the
minimum distribution made in the second distribution
calendar year shall be treated as if it had been made in
the immediately preceding distribution calendar year.
(6) REQUIRED BEGINNING DATE:
(a) GENERAL RULE. The required beginning date of a Participant
is the first day of April of the calendar year following the
calendar year in which the Participant attains age 70-1/2.
(b) TRANSITIONAL RULES. The required beginning date of a
Participant who attains age 70-1/2 before January 1,
1988, shall be determined in accordance with (1) or (2)
below:
(i) Non-5-percent owners. The required beginning date of
a Participant who is not a 5-percent owner is the
first day of April of the calendar year following
the calendar year in which the later of retirement
or attainment of age 70-1/2 occurs.
(ii) 5-percent owners. The required beginning date of a
Participant who is a 5-percent owner during any year
beginning after December 31, 1979, is the first day
of April following the later of:
(a) the calendar year in which the participant attains
age 70-1/2, or
(b) the earlier of the calendar year with or within
which ends the Plan Year in which the Participant
becomes a 5-percent
PAGE 50
owner, or the calendar year in which the
Participant retires.
The required beginning date of a Participant who is not a
5-percent owner who attains age 70-1/2 during 1988 and who
has not retired as of January 1, 1989, is April 1, 1990.
(c) 5-PERCENT OWNER. A Participant is treated as a 5-percent
owner for purposes of this Section if such Participant is
a 5-percent owner as defined in Section 416(i) of the
Code (determined in accordance with Section 416 but
without regard to whether the Plan is top-heavy) at any
time during the Plan Year ending with or within the
calendar year in which such owner attains age 66-1/2 or
any subsequent Plan Year.
(d) Once distributions have begun to a 5-percent owner under
this Section, they must continue to be distributed, even
if the Participant ceases to be a 5-percent owner in a
subsequent year.
(G) TRANSITIONAL RULE.
(1) DISTRIBUTIONS TO 5-PERCENT OWNERS. Notwithstanding the other
requirements of this Section 7.6 and subject to the
requirements of Section 7.10, Joint and Survivor Annuity
Requirements, distributions on behalf of any Employee,
including a 5-percent owner, may be made in accordance with
all of the following requirements (regardless of when such
distribution commences):
(a) The distribution by the plan is one which would not have
disqualified such plan under Section 401(a)(9) of the
Internal Revenue Code as in effect prior to amendment by
the Deficit Reduction Act of 1984.
(b) The distribution is in accordance with a method of
distribution designated by the Employee whose interest in
the plan is being distributed or, if the Employee is
deceased, by a Beneficiary of such Employee.
(c) Such designation was in writing, was signed by the
Employee or the Beneficiary, and was made before January
1, 1984.
(d) The Employee had accrued a benefit under the Plan as of
December 31, 1983.
(e) The method of distribution designated by the Employee or
the Beneficiary specifies the time at which distribution
will commence, the period over which distributions will
be made, and in the case of any distribution upon the
Employee's death, the Beneficiaries of the Employee
listed in order of priority.
(2) DISTRIBUTION ON DEATH. A distribution upon death will not be
covered by this transitional rule unless the information in the
designation contains the required
PAGE 51
information described above with respect to the distributions to
be made upon the death of the Employee.
(3) DESIGNATION OF DISTRIBUTION METHOD. For any distribution which
commences before January 1, 1984, but continues after December
31, 1983, the Employee, or the Beneficiary, to whom such
distribution is being made, will be presumed to have designated
the method of distribution under which the distribution is being
made if the method of distribution was specified in writing and
the distribution satisfies the requirements in subsections
(G)(1)(a) and (e).
(4) REVOCATION OF DESIGNATIONS. If a designation is revoked any
subsequent distribution must satisfy the requirements of Section
401(a)(9) of the Code and the regulations thereunder. If a
designation is revoked subsequent to the date distributions are
required to begin, the plan must distribute by the end of the
calendar year following the calendar year in which the revocation
occurs the total amount not yet distributed which would have been
required to have been distributed to satisfy Section 401(a)(9) of
the Code and the regulations thereunder, but for the Section
242(b)(2) election. For calendar years beginning after December
31, 1988, such distributions must meet the minimum distribution
incidental benefit requirements in Section 1.401(a)(9)-2 of the
Income Tax Regulations. Any changes in the designation will be
considered to be a revocation of the designation. However, the
mere substitution or addition of another Beneficiary (one not
named in the designation) under the designation will not be
considered to be a revocation of the designation, so long as such
substitution or addition does not alter the period over which
distributions are to be made under the designation, directly or
indirectly (for example, by altering the relevant measuring
life). In the case in which an amount is transferred or rolled
over from one Plan to another Plan, the rules in Q&A J-2 and Q&A
J-3 shall apply.
7.7 DESIGNATION OF BENEFICIARY.
(A) DEFAULT BENEFICIARY. In the case of a Participant who is married, the
Participant's Beneficiary shall be the Participant's Spouse, but if
the Participant's Spouse consents as provided in this Section 7.7, or
if the Participant is not married, then the Participant shall have
the right to designate that after such Participant's death such
Participant's accounts shall be distributed to a designated
Beneficiary or Beneficiaries.
(B) SPOUSAL CONSENT. Any consent of a Spouse given pursuant to this
Section must be in writing and given prior to the death of the
Participant. Such consent must acknowledge the effect of the
Participant's Beneficiary designation, the identity of any non-Spouse
Beneficiary, including any class of Beneficiaries and contingent
Beneficiaries, and the consent must be witnessed by a Plan
representative or a Notary Public. The Participant may not
subsequently change the designation of his or her Beneficiary unless
his Spouse consents to the new designation in accordance with the
requirements set forth in the preceding sentence. The consent of a
Participant's Spouse shall not be required if the Participant
establishes to the satisfaction of the Committee that consent may not
be obtained because there is no Spouse, the Spouse cannot be located
or because of such other circumstances as the Secretary of the
Treasury may prescribe by regulations. A Spouse's
PAGE 52
consent shall be irrevocable. Any consent by a Spouse, or
establishment that the consent of the Spouse may not be obtained,
shall be effective only with respect to that Spouse.
(C) CHANGING BENEFICIARIES. Subject to Subparagraphs (A) and (B) above,
the Participant's designation of Beneficiary may be made, changed or
revoked by the Participant at any time by a written instrument, in
form satisfactory to the Committee, and shall become effective only
when executed by such Participant (and, if applicable, consented to by
the Participant's Spouse as set forth in Section 7.7(B)) and filed
with the Committee prior to such Participant's death. If all of the
Beneficiaries named in such designation shall have predeceased such
Participant, or die prior to complete distribution of the
Participant's accounts, or if such Participant fails to execute and
file a designation and is not survived by a Spouse the payment of such
Participant's accounts shall be made pursuant to the Plan and to such
Beneficiaries as required by state law. Neither the Employer, the
Committee, nor the Trustee, shall have any duty to see that such
Participant, any Spouse or any Beneficiary executes and files any such
designation with the Committee.
7.8 OPTIONAL FORMS OF BENEFIT. The optional forms of benefit provided by this
Plan are not subject to Employer discretion and are made available to all
Participants on a nondiscriminatory basis. The optional forms of benefit
are described in Articles III and VII, as may be selected in the Adoption
Agreement. If selected in Item B(13) of the Adoption Agreement, the
Employer may attach to the Plan a list of the Section "411(d)(6) protected
benefits" that must be preserved from a individually designed Plan or other
prototype Plan which this Plan amends.
7.9 DISTRIBUTION UPON DISABILITY. In the event of the Disability of the
Participant, the Trustee, following receipt of notification of such
Disability from the Committee, shall make distributions from the Account.
7.10 JOINT AND SURVIVOR ANNUITY REQUIREMENTS.
(A) APPLICATION. The provisions of this Section 7.10 shall apply to any
Participant who is credited with at least one Hour of Service with the
Employer on or after August 23, 1984, and such other Participants as
provided in Section 7.10(G).
(B) QUALIFIED JOINT AND SURVIVOR ANNUITY. Unless an optional form of
benefit is selected pursuant to a Qualified Election within the
ninety-day period ending on the Annuity Starting Date, a married
Participant's Vested Account Balance will be paid in the form of a
Qualified Joint and Survivor Annuity and an unmarried Participant's
Vested Account Balance will be paid in the form of a life annuity. The
Participant may elect to have such annuity distributed upon attainment
of the Earliest Retirement Age under the Plan.
(C) QUALIFIED PRE-RETIREMENT SURVIVOR ANNUITY. Unless an optional form of
benefit has been selected within the election period pursuant to a
Qualified Election, if a Participant dies before the Annuity Starting
Date then the Participant's Vested Account Balance shall be applied
toward the purchase of an annuity for the life of the surviving
Spouse. The surviving Spouse may elect to have such annuity
distributed within a reasonable period after the Participant's death.
(D) DEFINITIONS.
PAGE 53
(1) ELECTION PERIOD: The period which begins on the first day of the
Plan Year in which the Participant attains age 35 and ends on the
date of the Participant's death. If a Participant separates from
service prior to the first day of the Plan Year in which age 35
is attained, with respect to the account balance as of the date
of separation, the election period shall begin on the date of
separation.
Pre-age 35 waiver: A Participant who will not yet attain age 35
as of the end of any current Plan Year may make a special
Qualified Election to waive the Qualified Preretirement Survivor
Annuity for the period beginning on the date of such election and
ending on the first day of the Plan Year in which the Participant
will attain age 35. Such election shall not be valid unless the
Participant receives a written explanation of the Qualified
Preretirement Survivor Annuity in such terms as are comparable to
the explanation required under Section 7.10(E). Qualified
Preretirement Survivor Annuity coverage will be automatically
reinstated as of the first day of the Plan Year in which the
Participant attains age 35. Any new waiver on or after such date
shall be subject to the full requirements of this Section 7.10.
(2) EARLIEST RETIREMENT AGE: The earliest date on which, under the
Plan, the Participant could elect to receive retirement benefits.
(3) QUALIFIED ELECTION: A waiver of a Qualified Joint and Survivor
Annuity or a Qualified Preretirement Survivor Annuity. Any
waiver of a Qualified Joint and Survivor Annuity or a Qualified
Preretirement Survivor Annuity shall not be effective unless: (a)
the Participant's Spouse consents in writing to the election; (b)
the election designates a specific Beneficiary including any
class of Beneficiaries or any contingent Beneficiaries, which may
not be changed without spousal consent (or the Spouse expressly
permits designations by the Participant without any further
spousal consent); (c) the Spouse's consent acknowledges the
effect of the election; and (d) the Spouse's consent is witnessed
by a Plan representative or Notary Public. Additionally, a
Participant's waiver of the Qualified Joint and Survivor Annuity
shall not be effective unless the election designates a form of
benefit payment which may not be changed without spousal consent
(or the spouse expressly permits designations by the Participant
without any further spousal consent). If it is established to the
satisfaction of a Plan representative that there is no Spouse or
that the Spouse cannot be located, a waiver will be deemed a
Qualified Election.
Any consent by a Spouse obtained under this provision (or
establishment that the consent of a Spouse may not be obtained)
shall be effective only with respect to such Spouse. A consent
that permits designations by the Participant without any
requirement of further consent by such Spouse must acknowledge
that the Spouse has the right to limit consent to a specific
Beneficiary, and a specific form of benefit where applicable, and
that the Spouse voluntarily elects to relinquish either or both
of such rights. A revocation of a prior waiver may be made by a
Participant without the consent of the Spouse at any time before
the commencement of benefits. The number of revocations shall not
be limited. No consent obtained under this provision shall be
valid unless the Participant has received notice as provided in
Paragraph (E) below.
PAGE 54
(4) QUALIFIED JOINT AND SURVIVOR ANNUITY: An immediate annuity for
the life of the Participant with a survivor annuity for the life
of the Spouse which is not less than 50 percent and not more than
100 percent of the amount of the annuity which is payable during
the joint lives of the Participant and the Spouse and which is
the amount of benefit which can be purchased with the
Participant's vested account balance. The percentage of the
survivor annuity under the Plan shall be 50%.
(5) SPOUSE (SURVIVING SPOUSE): the Spouse or surviving Spouse of the
Participant, provided that a former Spouse will be treated as
the Spouse or surviving Spouse and the current Spouse will not be
treated as the Spouse or surviving Spouse to the extent provided
under a qualified domestic relations order as described in
Section 414(p) of the Code.
(6) ANNUITY STARTING DATE: The first day of the first period for
which an amount is payable as an annuity or any other form.
(7) VESTED ACCOUNT BALANCE: The aggregate value of the Participant's
vested account balances derived from Employer and Employee
contributions (including rollovers), whether vested before or
upon death. The provisions of this Section 7.10 shall apply to a
Participant who is vested in amounts attributable to Employer
contributions, Employee contributions (or both) at the time of
death or distribution.
(E) NOTICE REQUIREMENTS.
(1) QUALIFIED JOINT AND SURVIVOR ANNUITY. In the case of a Qualified
Joint and Survivor Annuity as described in Section 7.10(B), the
Committee shall no less than 30 days and no more than 90 days
prior to the Annuity Starting Date provide each Participant a
written explanation of: (i) the terms and conditions of a
Qualified Joint and Survivor Annuity; (ii) the Participant's
right to make and the effect of an election to waive the
Qualified Joint and Survivor Annuity form of benefit; (iii) the
rights of a Participant's Spouse; and (iv) the right to make,
and the effect of, a revocation of a previous election to waive
the Qualified Joint and Survivor Annuity.
(2) QUALIFIED PRE-RETIREMENT SURVIVOR ANNUITY. In the case of a
Qualified Pre-Retirement Survivor Annuity as described in Section
7.10(C), the Committee shall provide each Participant within the
applicable period for such Participant a written explanation of
the Qualified Pre-Retirement Survivor Annuity in such terms and
in such manner as would be comparable to the explanation provided
for meeting the requirements of Section 7.10(E) applicable to a
Qualified Joint and Survivor Annuity.
The applicable period for a Participant is whichever of the
following periods ends last: (i) the period beginning with the
first day of the Plan Year preceding the Plan Year in which the
Participant attains age thirty-two (32) and ending with the close
of the Plan Year in which the Participant attains age thirty-five
(35); (ii) a reasonable period ending after the individual
becomes a Participant; (iii) a
PAGE 55
reasonable period ending after Section 7.10(E)(3) ceases to
apply to the Participant; and (iv) a reasonable period ending
after Section 7.10 first applies to the Participant.
Notwithstanding the foregoing, notice must be provided within a
reasonable period ending after separation from service in the
case of a Participant who separates from service before attaining
age thirty-five (35).
For purposes of applying the preceding paragraph, a reasonable
period ending after the enumerated events described in (ii),
(iii) and (iv) is the end of the two-year period beginning one
year prior to the date the applicable event occurs, and ending
one year after that date. In the case of a Participant who
separates from service before the Plan Year in which age 35 is
attained, notice shall be provided within the two-year period
beginning one-year prior to separation and ending one year after
separation. If such a Participant thereafter returns to
employment with the Employer, the applicable period for such
participant shall be predetermined.
(3) SUBSIDIZED ANNUITY DISTRIBUTIONS. Notwithstanding the other
requirements of this Section 7.10(E), the respective notices
prescribed by this Section 7.10(E) need not be given to a
Participant if (1) the Plan "fully subsidizes" the cost of a
Qualified Joint and Survivor Annuity or Qualified Pre-Retirement
Survivor Annuity, and (2) the Plan does not allow the Participant
to waive the Qualified Joint and Survivor Annuity or Qualified
Preretirement Survivor Annuity and does not allow a married
Participant to designate a non-Spouse Beneficiary. For purposes
of this Section 7.10(E), a Plan fully subsidizes the cost of a
benefit if no increase in cost, or decrease in benefits to the
Participant may result from the Participant's failure to elect
another benefit.
(F) SAFE HARBOR RULES.
(1) APPLICATION. This Section shall apply to a Participant in a
profit-sharing Plan, and to any distribution, made on or after
the first day of the first Plan Year beginning after December 31,
1988, from or under a separate account attributable solely to
accumulated deductible employee contributions, as defined in
Section 72(o)(5)(B) of the Code, and maintained on behalf of a
Participant in a money purchase pension Plan, (including a target
benefit Plan) if the following conditions are satisfied: (1) the
Participant does not or cannot elect payments in the form of a
life annuity, and (2) on the death of the Participant, the
Participant's vested account balance will be paid to the
Participant's surviving Spouse, but if there is no surviving
Spouse or, if the surviving Spouse has already consented in a
manner conforming to a Qualified Election, then to the
Participant's designated Beneficiary. The surviving Spouse may
elect to have distribution of the vested account balance commence
within the 90-day period following the date of the Participant's
death. The account balance shall be adjusted for gains or losses
occurring after the participant's death in accordance with the
provisions of the Plan governing the adjustment of account
balances for other types of distributions. This Section 7.10(F)
shall not be operative with respect to a Participant in a
profit-sharing Plan if the Plan is a direct or indirect
transferee of a defined benefit Plan, money purchase Plan, a
target benefit Plan, stock bonus, or profit-sharing Plan which is
subject to the survivor annuity requirements of Section
401(a)(11) and Section 417 of the Code. If this
PAGE 56
Section 7.10(F) is operative, then the provisions of this
Section 7.10, other than in Section 7.10(G), shall be
inoperative.
(2) WAIVER. The Participant may waive the spousal death benefit
described in this section at any time provided that no such
waiver shall be effective unless it satisfies the conditions of
Section 7.10(D)(3) (other than the notification requirement
referred to therein) that would apply to the Participant's waiver
of the Qualified Preretirement Survivor Annuity.
(3) VESTED ACCOUNT BALANCE. For purposes of this Section 7.10(F),
vested account balance shall mean, in the case of a money
purchase pension Plan or a target benefit Plan, the
Participant's separate account balance attributable solely to
accumulated deductible employee contributions within the meaning
of Section 72(o)(5) (B) of the Code. In the case of a
profit-sharing Plan, vested account balance shall have the same
meaning as provided in Section 7.10(D)(7).
(G) TRANSITIONAL RULES.
(1) Any living Participant not receiving benefits on August 23, 1984,
who would otherwise not receive the benefits prescribed by the
previous sections of this Section 7.10 must be given the
opportunity to elect to have the prior sections of this Section
7.10 apply if such Participant is credited with at least one Hour
of Service under this Plan or a predecessor Plan in a Plan Year
beginning on or after January 1, 1976, and such Participant had
at least ten (10) years of vesting service when he or she
separated from service.
(2) Any living Participant not receiving benefits on August 23, 1984
who was credited with at least one Hour of Service under this
Plan or predecessor Plan on or after September 2, 1974, and who
is not otherwise credited with any service in a Plan Year
beginning on or after January 1, 1976 must be given the
opportunity to have his or her benefits paid in accordance with
Section 7.10(G)(4).
(3) The respective opportunities to elect (as described in Section
7.10(G)(1) and (2) above) must be afforded to the appropriate
Participants during the period commencing on August 23, 1984 and
ending on the date benefits would otherwise commence to these
Participants.
(4) Any Participant who has elected pursuant to Section 7.10(G)(2)
and any Participant who does not elect under Section 7.10(G)(1)
or who meets the requirements of Section 7.10(G)(1) except that
such Participant does not have at least ten (10) years of vesting
service when he or she separates from service, shall have his or
her benefits distributed in accordance with all of the following
requirements of benefits would have been payable in the form of a
life annuity:
a) Automatic joint and survivor annuity. If benefits in the
form of a life annuity become payable to a married
participant who:
PAGE 57
(i) begins to receive payments under the Plan on or after
Normal Retirement Date; or
(ii) dies on or after Normal Retirement Date while still
working for the Employer; or
(iii) begins to receive payments on or after the Qualified
Early Retirement Age; or
(iv) separates from service on or after attaining Normal
Retirement Date (or the Qualified Early Retirement
Age) and after satisfying the eligibility requirements
for the payment of benefits under the Plan and
thereafter dies before beginning to receive such
benefits;
then such benefits will be received under this Plan in the
form of a Qualified Joint and Survivor Annuity, unless the
Participant has elected otherwise during the election
period. The election period must begin at least 6 months
before the Participant attains Qualified Early Retirement
Age and end not more than 90 days before the commencement
of benefits. Any election hereunder will be in writing and
may be changed by the Participant at any time.
b) Election of early survivor annuity. A Participant who is
employed after attaining the Qualified Early Retirement Age
will be given the opportunity to elect, during the election
period, to have a survivor annuity payable on death. If the
Participant elects the survivor annuity, payments under such
annuity must not be less than the payments which would have
been made to the Spouse under the Qualified Joint and
Survivor Annuity if the Participant had retired on the day
before his or her death. Any election under this provision
will be in writing and may be changed by the Participant at
any time. The election period begins on the later of (1) the
90th day before the Participant attains the Qualified Early
Retirement Age, or (2) the date on which participation
begins, and ends on the date the Participant terminates
employment.
c) For purposes of this Section 7.10(G)(4):
(i) Qualified Early Retirement Age is the latest of: (i)
the earliest date, under the Plan, on which the
Participant may elect to receive retirement benefits,
(ii) the first day of the 120th month beginning before
the Participant reaches Normal Retirement Date, or
(iii) the date the Participant begins participation.
(ii) Qualified Joint and Survivor Annuity is an annuity for
the life of the participant with a survivor annuity for
the life of the Spouse as described in Section
7.10(D)(4).
(H) NONTRANSFERABILITY. Any annuity distributed from the Plan must be
nontransferable.
PAGE 58
(I) INCORPORATION OF TERMS. The terms of any annuity contract purchased
and distributed by the Plan to a Participant or Spouse shall comply
with the requirements of this Plan.
7.11 DISTRIBUTIONS TO QUALIFIED PLANS. In the event a former Employee whose
accounts have not been fully distributed becomes an active participant in
a Plan qualified under Section 401(a) of the Code, the Committee may direct
the Trustee to transfer the amount in such Participant's account(s) to any
such Plan provided the Plan to receive such transfers authorizes accepting
the transfer, provides that assets transferred shall be held in a separate
account and requires that the assets transferred shall not be subject to
any forfeiture provisions.
7.12 PROFIT SHARING PLANS AND 401(k) PROFIT SHARING PLANS ONLY - WITHDRAWAL OF
EMPLOYER CONTRIBUTIONS. Subject to the provisions of the Plan, in
accordance with rules for giving notice as determined by the Committee, and
as elected in the Adoption Agreement, a Participant may withdraw as of the
first Accounting Date subsequent to receipt by the Committee of such
notice:
(A) An amount equal to not more than 100% of the Participant's Employer
Contribution Account determined as of such Accounting Date. No
Participant who has made any withdrawal of Employer Contributions in
the twelve (12) months preceding the giving of such notice may make a
withdrawal under this Section.
(B) Notwithstanding anything to the contrary in this Section 7.12, any
withdrawal made pursuant to Section 7.12(A) shall be for a minimum
whole dollar amount not less than Five Hundred Dollars ($500.00);
except that if the amount available for withdrawal is less than Five
Hundred Dollars ($500.00) then the minimum amount of the withdrawal
shall be the amount available.
(C) No forfeitures will occur solely as a result of an Employee's
withdrawal of Employer Contributions.
(D) Notwithstanding anything to the contrary in this Section 7.12, a
Participant may not make a withdrawal, pursuant to this Section of any
portion of the Participant's vested interest which has been assigned
to secure repayment of a loan in accordance with Section 10.10, below,
until such time as the Committee shall have released said portion so
assigned.
7.13 PROHIBITION AGAINST ALIENATION.
(A) Except as provided in Sections 401(a)(13) and 414(p) of the Code, no
benefit or interest available under this Plan will be subject to
assignment or alienation, either voluntarily or involuntarily.
(B) The preceding sentence shall also apply to the creation, assignment,
or recognition of a right to any benefit payable with respect to a
Participant pursuant to a domestic relations order, unless the
Committee determines that such order is a qualified domestic relations
order, as defined in Section 414(p) of the Code, or any domestic
relations order entered before January 1, 1985.
PAGE 59
(C) All rights and benefits, including elections, provided to a
Participant in this Plan shall be subject to the rights afforded to
any "alternate payee" under a "qualified domestic relations order."
Furthermore, an immediate distribution to an "alternate payee" shall
be permitted if such distribution is authorized by a "qualified
domestic relations order," even if the affected Participant has not
reached the "earliest retirement age" under the Plan, provided that in
no event will any such distribution accelerate the repayment of any
loan made to the affected Participant under the Plan, unless such
Participant consents thereto in writing. For purposes of this Section
7.13, "alternate payee," "qualified domestic relations order" and
"earliest retirement age" shall have the meaning set forth under Code
Section 414(p), unless a Qualified Distribution Date has been selected
in the Adoption Agreement, in which case the earliest retirement age
shall be the date on which the domestic relations order is determined
to be qualified.
7.14 MISSING PARTICIPANT OR BENEFICIARY. Each Participant and/or each
Beneficiary must file with the Committee from time to time in writing his
or her post office address and each change of post office address. Any
communication, statement or notice addressed to a Participant and/or
Beneficiary at such last post office address filed with the Committee or if
no address is filed with the Committee then at the last post office address
as shown on the Employer's records, will be binding on the Participant
and/or Beneficiary for all purposes of the Plan. Neither the Committee nor
the Trustee shall be required to search for or locate a Participant or
Beneficiary.
Any other provision of the Plan to the contrary notwithstanding, if any
application for a benefit has not been filed by a Participant otherwise
eligible therefor within ninety (90) days after the Plan Year in which
occurred his or her termination date, the Committee shall mail to such
Participant and/or Beneficiary at his or her last known address an
application for benefit and a reminder that he or she is eligible for such
benefit. If such application is not filed with the Committee in accordance
with the provisions of the Plan within ninety (90) days after it is so
mailed to such Participant or his or her termination date, whichever is
later, the benefit shall be forfeited and shall be used to reduce future
Employer Contributions as though the Participant were not vested in his or
her accounts as of the end of said ninety (90) day period. Upon the
subsequent filing of an application therefor by the Participant and/or his
Beneficiary, such accounts shall be immediately reinstated pursuant to this
provision as though the Participant were 100% vested in his or her accounts
in an amount equal to the cash value of the accounts on the date forfeited.
To the extent forfeited amounts are not available, the Employer shall
contribute the amount required to reinstate the Participant's account
balance.
7.15 LIMITATION ON CERTAIN DISTRIBUTIONS. Notwithstanding anything contained
herein to the contrary, the Trustee may, in its discretion, delay
satisfying requests for distributions for up to one year where
distributions require amounts to be withdrawn from the Guaranteed
Investment Contract Fund; provided, however, that in no event shall the
Trustee delay distributions to a Participant beyond the legally required
time for distribution as set forth in Section 7.5.
7.16 FORM OF DISTRIBUTIONS AND WITHDRAWALS. The Trustee shall make all
distributions and withdrawals under the Plan, including Hardship
withdrawals, other withdrawals while the Participant is still employed, and
distributions upon retirement, disability, death and separation from
service, pro rata, from all accounts and Investment Funds, as follows:
PAGE 60
(A) In a Plan with no Employer Stock Fund, all withdrawals and
distributions under the Plan shall be made in cash.
(B) In a Plan with an Employer Stock Fund:
(1) Withdrawals and distributions under the Plan from the other
Investment Fund(s) shall be made in cash.
(2) Withdrawals and distributions under the Plan from the Employer
Stock Fund may be made in cash or in full shares of Employer
Stock, with any fractional share paid in cash, as elected by the
Participant. For the cash portion of any distribution or
withdrawal, the Participant will receive the cash proceeds from
the sale of shares of Employer Stock as of the sale date.
ARTICLE VIII
DIRECT ROLLOVERS
8.1 GENERAL. This Article applies to distributions made on or after January 1,
1993. Notwithstanding any provision of the Plan to the contrary that would
otherwise limit a distributee's election under this Article, a distributee
may elect, at the time and in the manner prescribed by the Plan
administrator, to have any portion of an eligible rollover distribution
paid directly to an eligible retirement Plan specified by the distributee
in a direct rollover.
8.2 DEFINITIONS.
(A) ELIGIBLE ROLLOVER DISTRIBUTION: An eligible rollover distribution is
any distribution of all or any portion of the balance to the credit of
the distributee, except that an eligible rollover distribution does
not include: any distribution that is one of a series of substantially
equal periodic payments (not less frequently than annually) made for
the life (or life expectancy) of the distributee or the joint lives
(or joint life expectancies) of the distributee and the distributee's
designated Beneficiary, or for a specified period of ten years or
more; any distribution to the extent such distribution is required
under section 401(a)(9) of the Code; and the portion of any
distribution that is not includible in gross income (determined
without regard to the exclusion for net unrealized appreciation with
respect to employer securities).
(B) ELIGIBLE RETIREMENT PLAN: An eligible retirement Plan is 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 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.
(C) DISTRIBUTEE: A distributee includes 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
PAGE 61
relations order, as defined in section 414(p) of the Code, are
distributees with regard to the interest of the Spouse or former
Spouse.
(D) DIRECT ROLLOVER: A direct rollover is a payment by the Plan to the
eligible retirement Plan specified by the distributee.
(E) WAIVER OF NOTICE. If a distribution is one to which Sections
401(a)(11) and 417 of the Internal Revenue Code do not apply, such
distribution may commence less than 30 days after the notice required
under Section 1.411(a)-(11)(c) of the Income Tax Regulations is given,
provided that: (1) the plan administrator clearly informs the
Participant that the Participant has a right to a period of at least
30 days after receiving the notice to consider the decision of whether
or not to elect a distribution (and, if applicable, a particular
distribution option), and (2) the Participant, after receiving the
notice, affirmatively elects a distribution.
ARTICLE IX
TOP-HEAVY PROVISIONS
9.1 USE OF TOP HEAVY PROVISIONS. If the Plan becomes a Top Heavy Plan in any
Plan Year after December 31, 1983, the provisions of this Article IX will
supersede any conflicting provision in the Plan or the Adoption Agreement.
The Committee has sole responsibility to make the determination as to the
top-heavy status of the Plan.
9.2 TOP-HEAVY DEFINITIONS.
(A) KEY EMPLOYEE: Any Employee or former Employee (and the Beneficiaries
of such Employee) who at any time during the determination period was
an officer of the Employer if such individual's annual Compensation
exceeds 50% of the dollar limitation under Section 415(b)(1)(A) of the
Code, an owner (or considered an owner under Section 318 of the Code)
of one of the ten largest interests in the Employer if such
individual's Compensation exceeds 100% of the dollar limitation under
Section 415(c)(1)(A) of the Code, a 5 per cent owner of the Employer,
or a 1 per cent owner of the Employer who has an annual Compensation
of more than $150,000. Annual compensation means compensation as
defined in Item B(4)(a) of the Adoption Agreement, but including
amounts contributed by the Employer pursuant to a salary reduction
agreement which are excludable from the Employee's gross income under
Section 125, Section 402(e)(3), Section 402(h)(1)(B) or Section 403(b)
of the Code. The determination period is the Plan Year containing the
Determination Date and the 4 preceding Plan Years.
The determination of who is Key Employee will made by the Committee in
accordance with Section 416(i)(1) of the Code and the regulations
thereunder.
(B) TOP-HEAVY PLAN: This Plan, for any Plan Year beginning after December
31, 1983, if any of the following conditions exists:
(1) If the Top-Heavy Ratio for this Plan exceeds 60 percent and this
Plan is not part of any Required Aggregation Group or Permissive
Aggregation Group of plans.
PAGE 62
(2) If this Plan is a part of a Required Aggregation Group of plans
but not part of a Permissive Aggregation Group and the
Top-Heavy Ratio for the group of plans exceeds 60 percent.
(3) If this Plan is a part of a Required Aggregation Group and part
of a Permissive Aggregation Group of plans and the Top-Heavy
Ratio for the Permissive Aggregation Group exceeds 60 percent.
(C) TOP-HEAVY RATIO: For purposes of determining if the Plan is a
Top-Heavy Plan:
(1) If the Employer maintains one or more defined contribution plans
(including any Simplified employee pension Plan) and the Employer
has not maintained any defined benefit Plan which during the
5-year period ending on the Determination Date(s) has or has had
accrued benefits, the Top-Heavy Ratio for this Plan alone or for
the Required or Permissive Aggregation Group as appropriate is a
fraction, the numerator of which is the sum of the account
balances of all Key Employees as of the Determination Date(s)
(including any part of any account balance distributed in the
5-year period ending on the Determination Date(s)), and the
denominator of which is the sum of all account balances
(including any part of any account balance distributed in the
5-year period ending on the Determination Date(s), both computed
in accordance with Section 416 of the Code and the regulations
thereunder. Both the numerator and denominator of the Top-Heavy
Ratio are increased to reflect any contribution not actually made
as of the Determination Date, but which is required to be taken
into account on that date under Section 416 of the Code and the
regulations thereunder.
(2) If the Employer maintains one or more defined contribution plans
(including any Simplified Employee Pension Plan) and the Employer
maintains or has maintained one or more defined benefit plans
which during the 5-year period ending on the Determination
Date(s) has or has had any accrued benefits, the Top-Heavy Ratio
for any Required or Permissive Aggregation Group as appropriate
is a fraction, the numerator of which is the sum of account
balances under the aggregated defined contribution plan or plans
for all Key Employees determined in accordance with (1) above,
and the Present Value of accrued benefits under the aggregated
defined benefit plan or plans for all Key Employees as of the
Determination Date(s), and the denominator of which is the sum of
the account balances under the aggregated defined contribution
plan or plans for all Participants, determined in accordance with
(1) above, and the Present Value of accrued benefits under the
defined benefit plan or plans for all Participants as of the
Determination Date(s), all determined in accordance with Section
416 of the Code and regulations thereunder. The accrued benefits
under a defined benefit plan in both the numerator and
denominator of the Top-Heavy Ratio are increased for any
distribution of an accrued benefit made in the five-year period
ending on the Determination Date.
(3) For purposes of (1) and (2) above, the value of account balances
and the Present Value of accrued benefits will be determined as
of the most recent Valuation Date that falls within or ends with
the 12-month period ending on the Determination Date, except as
provided in Section 416 of the Code and the regulations
thereunder
PAGE 63
for the first and second Plan years of a defined benefit Plan.
The account balances and accrued benefits of a Participant (a)
who is not a Key Employee but who was a Key Employee in a prior
year, or (b) who has not been credited with at least one Hour of
Service with any Employer maintaining the Plan at any time during
the five-year period ending on the Determination Date will be
disregarded. The calculation of the Top-Heavy Ratio, and the
extent to which distributions, rollovers, and transfers are taken
into account will be made in accordance with Section 416 of the
Code and the regulations thereunder. Voluntary deductible
employee contributions will not be taken into account for
purposes of computing the Top-Heavy Ratio. When aggregating
plans the value of account balances and accrued benefits will be
calculated with reference to the Determination Dates that fall
within the same calendar year.
The accrued benefit of a Participant other than a Key Employee
shall be determined under (a) the method, if any, that uniformly
applies for accrual purposes under all defined benefit plans
maintained by the Employer, or (b) if there is no such method, as
if such benefit accrued not more rapidly than the slowest accrual
rate permitted under the fractional rule of Section 411(b)(1)(C)
of the Code.
(D) PERMISSIVE AGGREGATION GROUP: The Required Aggregation Group of plans
plus any other Plan or plans of the Employer which, when considered as
a group with the Required Aggregation Group, would continue to satisfy
the requirements of Section 401(a)(4) and Section 410 of the Code.
(E) REQUIRED AGGREGATION GROUP: (1) Each qualified Plan of the Employer in
which at least one Key Employee participates or participated at any
time during the determination period (regardless of whether the Plan
has terminated), and (2) any other qualified Plan of Employer which
enables a Plan described in (1) to meet the requirements of Section
401(a)(4) or Section 410 of the Code.
(F) DETERMINATION DATE: For purposes of determining if there is a Key
Employee and for calculating the Top-Heavy Ratio: 1) for any Plan Year
subsequent to the first Plan Year, the last day of the preceding Plan
Year, and 2) for the first Plan Year of the Plan, the last day of
that year.
(G) VALUATION DATE: The date specified in Item B(14)(c) of the Adoption
Agreement as of which account balances or accrued benefits are valued
for purposes of calculating the Top-Heavy Ratio.
(H) PRESENT VALUE: Present Value shall be based only on the interest and
mortality rates specified in the Adoption Agreement.
9.3 MINIMUM ALLOCATION.
(A) Except as otherwise provided in Section 9.3(C) and (D) below, the
Employer Contributions and forfeitures allocated on behalf of any
Participant who is not a Key Employee shall not be less than the
lesser of three per cent (3%) of such Participant's Compensation or in
the case where the Employer has no defined benefit Plan which
designates this Plan to satisfy
PAGE 64
Section 401 of the Code, the largest percentage of Employer
contributions and forfeitures, as a percentage of the Key Employee's
Compensation, as limited by Section 401(a)(17) of the Code, allocated
on behalf of any Key Employee for that year. The minimum allocation is
determined without regard to any Social Security contribution. This
minimum allocation shall be made even though, under other Plan
provisions, the Participant would not otherwise be entitled to receive
an allocation or would have received a lesser allocation for the year
because of (i) such Participants failure to complete 1,000 Hours of
Service (or any other equivalent provided in the Plan) or (ii) the
Employee's failure to make mandatory contributions or (iii)
Compensation less than a stated amount.
(B) For purposes of computing the minimum allocation, Compensation shall
mean Compensation as defined in Section 6.6(A) as limited by Section
401(a)(17) of the Code.
(C) Section 9.3(A) shall not apply to any Participant who was not employed
by the Employer on the last day of the Plan Year.
(D) Section 9.3(A) shall not apply to any Participant to the extent the
Participant is covered under any other plan or plans of the Employer
and the Employer has provided in Item B(14) of the Adoption Agreement
that the minimum allocation or benefit requirement applicable to
Top-Heavy Plans will be met in the other plan or plans.
(E) The minimum allocation required (to the extent required to be
nonforfeitable under Section 416(b) of the Code) may not be forfeited
under Section 411(a)(3)(B) or Section 411(a)(3)(D) of the Code.
(F) For each Plan Year in which the Paired Plans are Top-Heavy, the
Top-Heavy requirements set forth in Article VIII of the Plan and Item
B(14) of the Adoption Agreement shall apply.
(G) Neither Before Tax Contributions nor Matching Contributions may be
taken into account for the purpose of satisfying the minimum Top-Heavy
contribution requirements.
9.4 MINIMUM VESTING SCHEDULES. For any Plan Year in which this Plan is a
Top-Heavy Plan, the vesting schedule elected by the Employer in Item B(14)
and/or C(4)(d) of the Adoption Agreement will automatically apply to the
Plan. The minimum vesting schedule applies to all benefits within the
meaning of Section 411(a)(7) of the Code except those attributable to
Employee contributions, including benefits accrued before the effective
date of Section 416 and benefits accrued before the Plan became a Top-Heavy
Plan. Further, no decrease in a Participant's nonforfeitable percentage may
occur in the event the Plan's status as a Top-Heavy Plan changes for any
Plan Year. However, this Section 9.4 does not apply to the account balance
of any Employee who does not have an Hour of Service after the Plan has
initially become a Top-Heavy Plan and such Employee's account balance
attributable to employer contributions and forfeitures will be determined
without regard to this Section 9.4.
ARTICLE X
TRUSTEE
10.1 TRUSTEE. The Trustee shall receive, hold, invest, administer and distribute
the Trust Fund in accordance with the provisions of the Plan as herein set
forth.
PAGE 65
10.2 RECORDS AND ACCOUNTS OF TRUSTEE. The Trustee shall maintain accurate and
detailed records and accounts of all its transactions of the Trust Fund,
which shall be available at all reasonable times for inspection or audit by
any person designated by the Employer and by any other person or entity to
the extent required by law.
10.3 REPORTS TO EMPLOYER. As soon as practicable following the close of each
accounting period and following the effective date of the termination of
the Plan, the Trustee shall file a written report with the Employer. The
report shall set forth all transactions with respect to the Trust Fund
during the period listing the Trust Fund assets with their market value as
of the close of the period covered by the report.
10.4 POWERS OF TRUSTEE. The Trustee shall administer the Trust Fund as a
nondiscretionary Trustee, and the Trustee shall not have any discretion or
authority with regard to the investment of the Trust Fund and shall act
solely as a directed Trustee of the fund contributed to it. The Trustee, as
a nondiscretionary Trustee, as may be directed by the Employer (or the
Participants to the extent provided herein) is authorized and empowered, by
way of limitation, with the following powers, rights and duties, each of
which the Trustee shall exercise in a nondiscretionary manner as directed
in accordance with the direction of the Employer (or the Participants) as a
Named Fiduciary (except to the extent that Plan assets are subject to the
control and management of a properly appointed Investment Manager):
(A) At the direction of the Named Fiduciary, to sell, write options on,
convey or transfer, invest and reinvest any part thereof in each and
every kind of property, whether real, personal or mixed, tangible or
intangible, whether income or non-income producing and wherever
situated, including, but not limited to, time deposits (including time
deposits in the Trustee or its affiliates, or any successor thereto,
if the deposits bear a reasonable rate of interest), fee simple,
leasehold or lesser estates in real estate, shares of common and
preferred stock, mortgages, bonds, leases, notes, debentures,
equipment or collateral trust certificates, rights, warrants,
convertible or exchangeable, and other corporate, individual or
government securities or obligations, annuity, retirement or other
insurance contracts, mutual funds (including funds for which the
Trustee or its affiliates serve as investment advisor), units of group
or collective trusts established to permit the pooling of funds of
separate pension and profit sharing trusts, provided the Internal
Revenue Service has ruled such group trust to be qualified under Code
Section 401(a) and exempt under Code Section 501(a) (or the applicable
corresponding provision of any other Revenue Act) or in units of any
other common, collective or commingled trust fund heretofore or
hereafter established and maintained by the Trustee or its affiliates;
as long as the Trustee holds any units hereunder, the instrument
establishing such common trust fund (including all amendments thereto)
shall be deemed to have been adopted and made a part of this Plan, and
such other investments as the Named Fiduciary shall direct the Trustee
to invest Plan assets or hold as an Investment Fund for the investment
of Plan assets pursuant to Participant direction.
(B) At the direction of the Named Fiduciary, to sell, convert, redeem,
exchange, grant options for the purchase or exchange of, or otherwise
dispose of any property held hereunder, at public or private sale, for
cash or upon credit with or without security, without obligation on
the part of any person dealing with the Trustee to see to the
application of the proceeds of or to inquire into the validity,
expediency, or propriety of any such disposal;
PAGE 66
(C) At the direction of the Named Fiduciary, to manage, operate, repair,
partition and improve and mortgage or lease (with or without an option
to purchase) for any length of time any property held in the Trust
Fund; to renew or extend any mortgage or lease, upon such terms as the
Trustee may deem expedient; to agree to reduction of the rate of
interest on any mortgage; to agree to any modification in the terms of
any lease or mortgage, or of any guarantee pertaining to either of
them; to exercise and enforce any right of foreclosure; to bid in
property on foreclosure; to take a deed in lieu of foreclosure with or
without paying consideration therefor and in connection therewith to
release the obligation on the bond secured by the mortgage; and to
exercise and enforce in any action, suit or proceeding at law or in
equity any rights, covenants, conditions, or remedies with respect to
any lease or mortgage or to any guarantee pertaining to either of them
or to waive any default in the performance thereof;
(D) In accordance with the direction of a Named Fiduciary, to vote,
personally or by general or limited proxy, any shares of stock or
other securities held in the Trust Fund, provided that all voting
rights pertaining to shares of any financial institution in the state
where the Trustee is located shall be exercised by the trustee only if
and as directed in writing by the Committee; provided further, that
the Trustee and the Employer may agree in writing that such voting
rights be passed through to the Participant's in proportion to their
interest in the Investment Funds, to delegate discretionary voting
power to the trustees of a voting trust for any period of time; and to
exercise or sell, personally or by power of attorney, any conversion
or subscription or other rights appurtenant to any securities or other
property held in the Trust Fund;
(E) As may be directed by the Named Fiduciary, to join in or oppose any
reorganization, recapitalization, consolidation, merger or
liquidation, or any Plan therefor, or any lease (with or without an
option to purchase), mortgage or sale of the property of any
organization the securities of which are held in the Trust Fund; to
pay from the Trust Fund any assessments, charges, or compensation
specified in any Plan of reorganization, recapitalization,
consolidation, merger or liquidation; to deposit any property with any
committee or depository; and to retain any property allotted to the
Trust Fund in any reorganization, recapitalization, consolidation,
merger or liquidation;
(F) In accordance with the written instructions of a Named Fiduciary, to
settle, compromise or commit to arbitration any claim, debt or
obligation of or against the Trust Fund; to enforce or abstain from
enforcing any right, claim, debt, or obligation; and to abandon any
property determined by it to be worthless;
(G) As may be directed by the Named Fiduciary, to continue to hold any
property of the Trust Fund, whether or not productive of income; to
reserve from investment and keep unproductive of income, without
liability for interest, such cash as it deems advisable and,
consistent with its obligations as Trustee hereunder, to hold such
cash in a demand deposit in the Trustee bank, its affiliates, or any
successor thereto;
(H) To hold property of the Trust Fund in its own name, or in the name of
nominee, without disclosure of this trust, or in bearer form so that
it may pass by delivery, and to deposit property with any depository,
but no such holding or depositing shall relieve the Trustee of
PAGE 67
its responsibility for the safe custody and disposition of the Trust
Fund in accordance with the provisions of this agreement as may be
directed by the Named Fiduciary, and the Trustee's records shall at
all times show that such property is part of the Trust Fund;
(I) As directed by the Named Fiduciary, to make, execute and deliver, as
Trustee, any deeds, conveyances, leases (with or without option to
purchase), mortgages, options, contracts, waivers, or other
instruments that the Trustee shall deem necessary or desirable in the
exercise of its powers under this agreement;
(J) To employ, at the expense of the Employer or the Trust Fund, agents
and delegate to them such duties as the Trustee sees fit; the Trustee
shall not be responsible for any loss occasioned by any such agents
selected by it with reasonable care; the Trustee may consult with
legal counsel (who may be counsel for the Employer) concerning any
questions which may arise with reference to its power or duties under
this Plan, and the written opinion of such counsel shall be full and
complete protection with respect to any action taken or not taken by
the Trustee in good faith and in accordance with the written opinion
of such counsel;
(K) To pay out of the Trust Fund any taxes imposed or levied with respect
to the Trust Fund and may contest the validity or amount of any tax,
assessment, penalty, claim or demand respecting the Trust Fund;
however, unless the Trustee shall have first been indemnified to its
satisfaction, it shall not be required to contest the validity of any
tax, or to institute, maintain or defend against any other action or
proceeding either at law or in equity;
(L) To make loans to Participants in accordance with policies established
by the Committee and in accordance with the terms of the Plan and the
and to segregate or otherwise identify property of the Trust Fund as
directed by the Committee for such purpose including providing
collateral for loans made pursuant to the Plan.
10.5 TRUSTEE'S FEES AND EXPENSES. The Trustee shall be entitled to receive
reasonable fees for its services hereunder in accordance with its schedule
of fees then in effect and shall be entitled to receive reimbursement for
all reasonable expenses incurred by it in the administration of this Plan.
Except to the extent that the Employer shall pay such fees and expenses,
they shall be charged to and collected by the Trustee from each
Participant's accounts. The Trustee's fees and expenses for extraordinary
services in connection with any Participant's accounts may be charged to
and collected by the Trustee from such accounts.
10.6 TRUSTEE MAY RESIGN OR BE REMOVED. The Trustee may resign by written notice
to the Employer which shall be effective sixty (60) days after delivery
unless the Trustee and the Employer agree to an earlier effective date. The
Trustee may be removed by the Employer by written notice to the Trustee
which shall be effective sixty (60) days after delivery unless the Trustee
and the Employer agree to an earlier effective date. Prior to the effective
date of such resignation or removal, the Employer shall amend its Plan to
eliminate any reference to the PRISM(R) PROTOTYPE RETIREMENT PLAN AND
TRUST, and appoint a new trustee. The Trustee shall deliver the Trust Fund
to its successor on the effective date of resignation or removal, or as
soon after such effective date as practicable. However, the Trustee may
first subtract any amounts owed it from the Trust Fund for compensation,
expenses and taxes due.
PAGE 68
If the Employer fails to so amend the Plan and appoint a successor trustee
within the sixty (60) days, or longer period as the Trustee permits in
writing, the Trustee shall apply to a court of competent jurisdiction for
appointment of a successor trustee.
10.7 SEPARATE INVESTMENT FUNDS.
(A) The assets of the Trust Fund shall be held in such number of
Investment Funds as the Employer and the Trustee may agree, plus an
Employer Stock Fund if selected by the Employer in the Adoption
Agreement, as the Employer shall designate in writing on the
Investment Fund Designation form affixed to the Adoption Agreement.
Such Investment Funds shall be selected by the Employer from among the
funds offered by the Trustee for use as Investment Funds in the
PRISM(R) PROTOTYPE RETIREMENT PLAN & TRUST. The Trustee reserves the
right to change the funds available for use as Investment Funds in the
PRISM(R) PROTOTYPE RETIREMENT PLAN & TRUST, from time to time, and the
Employer agrees to execute an amended Investment Fund Designation form
to reflect any such changes as may impact the Investment Funds
available to the Employer's Plan. The Employer hereby acknowledges
that, available as Investment Funds are interests in registered
investment companies (i.e. mutual funds) for which the sponsoring
organization, its parent, affiliates or successors may serve as
investment advisor and receive compensation from the registered
investment company for its services as investment advisor. The
Employer acknowledges that it, as Named Fiduciary, has the sole
responsibility for selection of the Investment Funds offered under the
Plan, and it has done so on the basis of the Employer's determination,
after due inquiry, of the appropriateness of the selected Investment
Funds as vehicles for the investment of Plan assets pursuant to the
terms of the Plan, considering all relevant facts and circumstances,
including but not limited to (i) the investment policy and philosophy
of the Employer developed pursuant to ERISA Section 402(b)(1); (ii)
the Participants, including average level of investment experience and
sophistication; (iii) the ability of Participants, using an
appropriate mix of Investment Funds, to diversify the investment of
Plan assets held for their benefit; (iv) the ability of Participants
to, utilizing an appropriate mix of Investment Funds, to structure an
investment portfolio within their account in the Plan with risk and
return characteristics within the normal range of risk and return
characteristics for individuals with similar investment backgrounds,
experience and expectations; and, (v) in making the selection of
Investment Funds, the Employer did not rely on any representations or
recommendations from the Trustee or any of its employees, except as
may have been provided through written materials, including marketing
materials provided by the various sponsors or distributors of the
Investment Funds, and that the Investment Fund selection has not be
influenced, approved, or encouraged through the actions of the Trustee
or its employees.
For purposes of the Plan, "Employer Stock" shall mean common stock
listed on a recognized securities exchange issued by an Employer of
Employees covered by the Plan or by an affiliate of such Employer and
which shall be a "qualifying employer security" as defined in ERISA.
The Employer Stock Fund shall be invested and reinvested in shares of
Employer Stock, which stock shall be purchased by the Trustee to the
extent not contributed to the Plan by the Employer, except for amounts
which may reasonably be expected to be necessary to satisfy
distributions to be made in cash. No Employer Stock shall be acquired
or held in any Investment Fund other than the Employer Stock Fund. Up
to 100% of the assets of the Trust Fund may be invested in Employer
Stock.
PAGE 69
All contributions shall be allocated by the Trustee to the Plan's
Investment Funds specified by the Employer. Dividends, interest and
other distributions shall be reinvested in the same Investment Fund
from which received.
Employers sponsoring 401(k) profit sharing plans may elect to
determine the Investment Funds, including an Employer Stock Fund, if
applicable, into which Matching Contributions and/or Employer
Contributions will be invested and/or into which Participants may not
direct contributions. By making these designations, the Employer shall
be deemed to have advised the Trustee in writing regarding the
retention of investment powers.
Notwithstanding the foregoing provisions of this Section 10.7(A), the
Trustee may, in its discretion, accept certain investments which have
been, and are, held as part of the Trust Fund prior to the date the
Employer adopted this Plan. Such investments shall be considered
investments directed by the Employer or an Investment Committee for
the Plan ("Investment Committee"), if one is acting. The Trustee shall
hold, administer and dispose of such investments in accordance with
directions to the Trustee contained in a written notice from the
Employer or Investment Committee. Any such notice shall advise the
Trustee regarding the retention of investment powers by the Employer
or the Investment Committee and shall be of a continuing nature or
otherwise, and may be revoked in writing by the Employer or Investment
Committee.
The Trustee shall not be liable but shall be fully protected by reason
of its taking or refraining from taking any action at the direction of
the Employer or Investment Committee, nor shall the Trustee be liable
but shall be fully protected by reason of its refraining from taking
any action because of the failure of the Employer or the Investment
Committee to give a direction or order. The Trustee shall be under no
duty to question or make inquiry as to any direction, notification or
order or failure to give a direction, notification or order by the
Employer or the Investment Committee. The Trustee shall be under no
duty to make any review of investments directed by the Employer or
Investment Committee acquired for the Trust Fund and under no duty at
any time to make any recommendation with respect to disposing of or
continuing to retain any such investments. While the Employer may
direct the Trustee with respect to Plan investments, the Employer may
not (1) borrow from the Fund or pledge any assets of the Fund as
security for a loan; (2) buy property or assets from or sell property
or assets to the Fund; (3) charge any fee for services rendered to the
Fund; or (4) receive any services from the Fund on a preferential
basis.
The Employer hereby indemnifies and holds the Trustee or its nominee
harmless from any and all actions, claims, demands, liabilities,
losses, damages or reasonable expenses of whatsoever kind and nature
in connection with or arising out of (1) any action taken or omitted
in good faith or any investment or disbursement of any part of the
Trust Fund made by the Trustee in accordance with the directions of
the Employer or the Investment Committee or any inaction with respect
to any Employer or Investment Committee directed investment or with
respect to any investment previously made at the direction of the
Employer or Investment Committee in the absence of directions from the
Employer or Investment Committee therefor, or (2) any failure by the
Trustee to pay for any property
PAGE 70
purchased by the Employer or the Investment Committee for the Trust
Fund by reason of the insufficiency of funds in the Trust Fund.
Anything hereinabove to the contrary notwithstanding, the Employer
shall have no responsibility to the Trustee under the foregoing
indemnification if the Trustee knowingly participated in or knowingly
concealed any act or omission of the Employer or Investment Committee
knowing that such act or omission constituted a breach of fiduciary
responsibility, or if the Trustee fails to perform any of the duties
undertaken by it under the provisions of this Plan, or if the Trustee
fails to act in conformity with the directions of an authorized
representative of the Employer or the Investment Committee.
(B) Each Participant shall by such mechanism as may be agreed upon between
the Trustee and Employer, direct that the contributions made to his or
her accounts for which the Participant may direct investments, as
selected by the Employer in the Adoption Agreement, be invested in one
or more of the Investment Funds, including the Employer Stock Fund, if
applicable. At the time an Employee becomes eligible for the Plan, he
or she shall specify the percentage of his or her accounts (expressed
in percentage increments as may be agreed to between the Employer and
the Trustee) to be invested pro-rata in each such Investment Fund.
(C) Upon prior written notice to the Trustee, or other form of notice
acceptable to the Trustee, a Participant may change an investment
direction with respect to future contributions. Through acceptable
notice to the Trustee, the Participant may elect to transfer all or a
portion of such Participant's interest in each Investment Fund (based
on the value of such interest on the Valuation Date immediately
preceding such election), including an Employer Stock Fund, if
applicable, to any other of the Investment Funds selected by the
Employer so that the Participant's interest in the said Investment
Funds immediately after the transfer is allocated in percentage
increments as may be agreed to by the Employer and the Trustee.
Notwithstanding any Participant's election to change Investment Funds,
the Trustee may, in its discretion, delay satisfaction of requests to
change from a guaranteed investment contract fund for up to one year,
or delay satisfaction of changes in Investment Funds pending
settlement of prior changes in Investment Funds.
(D) The Employer will be responsible when transmitting Employer and
Employee contributions to show the dollar amount to be credited to
each Investment Fund for each Employee.
(E) Except as otherwise provided in the Plan, neither the Trustee, nor the
Employer, nor any fiduciary of the Plan shall be liable to the
Participant or any of his or her beneficiaries for any loss resulting
from action taken at the direction of the Participant.
(F) In a 401(k) profit sharing Plan where the Employer has elected to
invest a portion or all of the Matching Contributions and/or Employer
Contributions in the Employer Stock Fund, then the following shall
apply:
PAGE 71
If selected by the Employer in the Adoption Agreement, a Participant
who is fifty-five (55) years of age or older and who is 100% vested in
his Matching Contribution account and/or Employer Contribution account
may elect to have the Employer Stock (and any earnings thereon)
attributable to such Matching Contributions and/or Employer
Contributions diversified in the other Investment Funds under the Plan
in accordance with the following rules and limitations. The amount of
Employer Stock which may be diversified each Plan Year shall be
determined in accordance with the following schedule:
----------------------------------------------------------------------
THEN THE PERCENT OF THE NUMBER
OF WHOLE SHARES (ROUNDED TO THE
NEAREST WHOLE NUMBER) CREDITED
TO THE PARTICIPANTS' MATCHING
IF THE AGE ATTAINED BY THE ACCOUNT AND/OR EMPLOYER CONTRIBUTION
PARTICIPANT ACCOUNT ON THE LAST DAY OF THE
DURING THE PLAN YEAR IS: PRECEDING PLAN YEAR WHICH MAY BE
DIVERSIFIED PURSUANT TO THE RULES
BELOW MAY NOT EXCEED
----------------------------------------------------------------------
55 25%
----------------------------------------------------------------------
56 25%
----------------------------------------------------------------------
57 30%
----------------------------------------------------------------------
58 40%
----------------------------------------------------------------------
59 50%
----------------------------------------------------------------------
60 60%
----------------------------------------------------------------------
61 70%
----------------------------------------------------------------------
62 80%
----------------------------------------------------------------------
63 90%
----------------------------------------------------------------------
64 100%
----------------------------------------------------------------------
The election to diversify may only be made once each Plan Year. The
election may be made in any month by providing notice to the Committee
in accordance with the frequency selected by the Employer for other
Investment Fund changes under the Plan. Each election to make a
transfer pursuant to this Section shall specify the Investment Fund(s)
into which the shares subject to diversification will be reinvested so
that the Participant's interest in the said Investment Fund(s),
immediately after the transfer, is allocated in increments as may be
allowed by the Trustee. Thereafter, the Participant's interest in said
Investment Fund(s) shall be subject to transfer in accordance with
this Section.
(G) Forfeitures arising under the Plan will be invested in an Investment
Fund as may be selected in the discretion of the Employer.
(H) In the event the Trust holds life insurance, the following
restrictions shall apply:
(1) Limitations on Premium Payments
(a) If ordinary or whole life insurance contracts are purchased
on the life of a Participant, less than one-half of the
insured Participant's current allocation
PAGE 72
of contributions will be used to pay premiums attributable
to such insurance. Ordinary or whole life insurance
contracts are those with both nondecreasing benefits and
nonincreasing premiums.
(b) If term or universal life insurance contracts are purchased,
no more than one-quarter of the insured Participant's
current allocation of contributions will be used to pay
premiums attributable to such insurance.
(c) If a combination of ordinary or whole life insurance
contracts and term or universal life insurance contracts are
purchased, the sum of one-half of the ordinary life
insurance premiums and all other life insurance premiums
will not exceed one-fourth of the aggregate employer
contributions allocated to any participant.
(2) The Plan Administrator will direct the Trustee to convert the
entire value of any life insurance contract at or before the
Participant's actual retirement or distribution on termination of
employment, but not later than the Participant's Required
Beginning Date to provide cash values or retirement annuity
income, or, subject to the Joint and Survivor Annuity waiver
requirements of Section 7.10, the Plan Administrator may direct
the Trustee to distribute the insurance contract directly to the
Participant.
(3) The Trustee, at the direction of the Employer shall be entitled
to exercise all rights and options with respect to any such life
insurance contracts held by the Plan.
10.8 REGISTRATION, DISTRIBUTION AND VOTING OF EMPLOYER STOCK AND PROCEDURES
REGARDING TENDER OFFERS.
(A) All voting rights on shares of Employer Stock held in the Employer
Stock Fund shall be exercised by the Trustee only as directed by the
Participants acting in their capacity as "Named Fiduciaries" (as
defined in Section 402 of the Act) in accordance with the following
provisions of this Section 10.8(A):
(1) As soon as practicable before each annual or special
shareholders' meeting of the Employer, the Trustee shall furnish
to each Participant sufficient copies of the proxy solicitation
material sent generally to shareholders, together with a form
requesting confidential instructions on how the shares of
Employer Stock allocated to such Participant's account, and,
separately, such shares of Employer Stock as may be unallocated
("Unallocated Shares") or allocated to Participant accounts but
for which the Trustee does not receive timely voting instruction
from the Participant ("Non-Directed Shares"), (including
fractional shares to 1/1000th of a share) are to be voted. The
direction with respect to Non-Directed Shares and Unallocated
Shares shall apply to such number of votes equal to the total
number of votes attributable to Non-Directed Shares and
Unallocated Shares multiplied by a fraction, the numerator of
which is the number of shares of Employer Stock credited to the
Participant's account and the denominator of which is the total
number of shares credited to the accounts of all such
Participants who have timely provided directions to the Trustee
with respect to Non-Directed Shares and Unallocated Shares under
this Section 10.8(A)(1). The Employer and the Committee will
cooperate with the Trustee to ensure that Participants receive
the requisite information in a timely manner. The materials
furnished to the
PAGE 73
Participants shall include a notice from the Trustee that the
Trustee will vote any shares for which timely instructions are
not received by the Trustee as may be directed by those voting
Participants, acting in their capacity as Named Fiduciaries of
the Plan as provided above. Upon timely receipt of such
instructions, the Trustee shall vote the shares as instructed.
The instructions received by the Trustee from Participants or
Beneficiaries shall be held by the Trustee in strict confidence
and shall not be divulged or released to any person including
directors, officers or employees of the Employer, or of any other
company, except as otherwise required by law.
(2) With respect to all corporate matters submitted to shareholders,
all shares of Employer Stock shall be voted only in accordance
with the directions of such Participants as Named Fiduciaries as
given to the Trustee as provided in Section 10.8(A)(1). With
respect to shares of Employer Stock allocated to the account of a
deceased Participant, such Participant's Beneficiary, as Named
Fiduciary, shall be entitled to direct the voting of shares of
Employer Sock as if such Beneficiary were the Participant.
(B) All tender or exchange decisions with respect to Employer Stock held
in the Employer Stock Fund shall be made only by the Participants
acting in their capacity as Named Fiduciaries with respect to the
Employer Stock allocated to their accounts in accordance with the
following provisions of this Section 10.8(B):
(1) In the event an offer shall be received by the Trustee (including
a tender offer for shares of Employer Stock subject to Section
14(d)(1) of the Securities Exchange Act of 1934 or subject to
Rule 13e-4 promulgated under that Act, as those provisions may
from time to time be amended) to purchase or exchange any shares
of Employer Stock held by the Trust, the Trustee will advise each
Participant who has shares of Employer Stock credited to such
Participant's account in writing of the terms of the offer as
soon as practicable after its commencement and will furnish each
Participant with a form by which he may instruct the Trustee
confidentially whether or not to tender or exchange shares
allocated to such Participant's account, and, separately,
Unallocated Shares and Non-Directed Shares (including fractional
shares to 1/1000th of a share). The directions with respect to
Non-Directed Shares and Unallocated Shares shall apply to such
number of Non-Directed Shares and Unallocated Shares equal to the
total number of Non-Directed Shares and Unallocated Shares
multiplied by a fraction, the numerator of which is the number of
shares of Employer Stock credited to the Participant's account
and the denominator of which is the total number of shares
credited to the accounts of all such Participants who have timely
provided directions to the Trustee with respect to Non-Directed
Shares and Unallocated Shares under this Section 10.8(B). The
materials furnished to the Participants shall include (i) a
notice from the Trustee that, except as provided in this Section
10.8(B), the Trustee will not tender or exchange any shares for
which timely instructions are not received by the Trustee and
(ii) such related documents as are prepared by any person and
provided to the shareholders of the Employer pursuant to the
Securities Exchange Act of 1934. The Committee and the Trustee
may also provide Participants with such other material concerning
the tender or exchange offer as the Trustee or the
PAGE 74
Committee in its discretion determines to be appropriate;
provided, however, that prior to any distribution of materials by
the Committee, the Trustee shall be furnished with sufficient
numbers of complete copies of all such materials. The Employer
and the Committee will cooperate with the Trustee to ensure that
Participants receive the requisite information in a timely
manner.
(2) The Trustee shall tender or not tender shares or exchange shares
of Employer Stock (including fractional shares to 1/1000th of a
share) only as and to the extent instructed by the Participants
as Named Fiduciaries as provided in Section 10.8(B)(1). With
respect to shares of Employer Stock allocated to the account of a
deceased Participant, such Participant's Beneficiary, as a Named
Fiduciary, shall be entitled to direct the Trustee whether or not
to tender or exchange such shares as if such Beneficiary were the
Participant. If tender or exchange instructions for shares of
Employer Stock allocated to the account of any Participant are
not timely received by the Trustee, the Trustee will treat the
non-receipt as a direction not to tender or exchange such shares.
The instructions received by the Trustee from Participants or
Beneficiaries shall be held by the Trustee in strict confidence
and shall not be divulged or released to any person, including
directors, officers or employees of the Employer, or of any other
company, except as otherwise required by law.
(3) In the event, under the terms of a tender offer or otherwise, any
shares of Employer Stock tendered for sale, exchange or transfer
pursuant to such offer may be withdrawn from such offer, the
Trustee shall follow such instructions respecting the withdrawal
of such securities from such offer in the same manner and the
same proportion as shall be timely received by the Trustee from
the Participants, as Named Fiduciaries, entitled under this
Section 10.8(B) to give instructions as to the sale, exchange or
transfer of securities pursuant to such offer.
(4) In the event an offer shall be received by the Trustee and
instructions shall be solicited from Participants pursuant to
Section 10.8(B)(1-3) regarding such offer, and prior to
termination of such offer, another offer is received by the
Trustee for the securities subject to the first offer, the
Trustee shall use its best efforts under the circumstances to
solicit instructions from the Participants to the Trustee (i)
with respect to securities tendered for sale, exchange or
transfer pursuant to the first offer, whether to withdraw such
tender, if possible, and, if withdrawn, whether to tender any
securities so withdrawn for sale, exchange or transfer pursuant
to the second offer and (ii) with respect to securities not
tendered for sale, exchange or transfer pursuant to the first
offer, whether to tender or not to tender such securities for
sale, exchange or transfer pursuant to the second offer. The
Trustee shall follow all such instructions received in a timely
manner from Participants in the same manner and in the same
proportion as provided in Section 10.8(B)(1-3). With respect to
any further offer for any Employer Stock received by the Trustee
and subject to any earlier offer (including successive offers
from one or more existing offerors), the Trustee shall act in the
same manner as described above.
(5) A Participant's instructions to the Trustee to tender or exchange
shares of Employer Stock will not be deemed a withdrawal or
suspension from the Plan or a forfeiture
PAGE 75
of any portion of the Participant's interest in the Plan. Funds
received in exchange for tendered shares will be credited to the
account of the Participant whose shares were tendered and will be
used by the Trustee to purchase Employer Stock, as soon as
practicable. In the interim, the Trustee will invest such funds
in short-term investments permitted under the Plan, and in the
same manner in which forfeited amounts are invested.
(6) In the event the Employer initiates a tender or exchange offer,
the Trustee may, in its sole discretion, enter into an agreement
with the Employer not to tender or exchange any shares of
Employer Stock in such offer, in which event, the foregoing
provisions of this Section 10.8(B) shall have no effect with
respect to such offer and the Trustee shall not tender or
exchange any shares of Employer Stock in such offer.
(C) The Trustee acting with respect to the Employer Stock Fund may with
the consent of the Committee designate any Employee or other Trustee
as agent to solicit the instructions to vote provided for in
Subsection (A) of this Section, and shall be held harmless in relying
upon such agent's written advice as to how shares are to be voted, and
said Trustee may, with the consent of the Committee, designate any
Employee as agent to solicit instructions from Participants regarding
such a tender offer, as required under Subsection (B) above, and shall
be held harmless in relying upon such agent's written advice as to
whether shares of Employer Stock are to be tendered.
(D) The Employer shall be responsible for complying with applicable
federal and state securities laws and regulations.
10.9 VALUATION OF INVESTMENT FUNDS AND ACCOUNTS.
(A) As of each Valuation Date, the Trustee shall determine the fair market
value of each Investment Fund, including an Employer Stock Fund, if
any, being administered by the Trustee. With respect to each such
Investment Fund, the Trustee shall determine (a) the change in value
between the current Valuation Date and the then last preceding
Valuation Date, (b) the net gain or loss resulting from expenses paid
(including fees and expenses, if any, which are to be charged to such
Fund) and (c) realized and unrealized gains and losses.
The transfer of funds to or from an Investment Fund pursuant to
Section 10.7(C) and payments, distributions and withdrawals from an
Investment Fund to provide benefits under the Plan for Participants or
Beneficiaries shall not be deemed to be gains, expenses or losses of
an Investment Fund.
After each Valuation Date, the Trustee shall allocate the net gain or
loss of each Investment Fund as of such Valuation Date to the accounts
of Participants participating in such Investment Fund on such
Valuation Date. Contributions, forfeitures and rollovers received and
credited to Participants' accounts as of such Valuation Date, or as of
any earlier date since the last preceding Valuation Date shall not be
considered in allocating gains or losses allocated to Participants'
accounts.
PAGE 76
(B) The reasonable and equitable decision of the Trustee as to the value
of each Investment Fund, including an Employer Stock Fund, if any, and
of any account as of each Valuation Date shall be conclusive and
binding upon all persons having any interest, direct or indirect, in
the Investment Funds or in any account.
ARTICLE XI
ADMINISTRATION
11.1 COMMITTEE MEMBERSHIP. The Employer shall appoint a Committee which shall
consist of at least one member. The Committee members will be named in the
Adoption Agreement and may be, but are not required to be, Employees of the
Employer. All members of the Committee shall serve at the pleasure of the
Employer. In the event that the Committee has more than one member, one
member shall serve as Chairman and one as Secretary. Any member of the
Committee may resign by notice in writing to the Employer. Any vacancy in
the Committee shall be filled by the Employer as soon as practicable after
a vacancy. If the Employer does not designate a Committee, the Employer
shall assume all of the duties of the Committee.
11.2 POWERS AND DUTIES OF COMMITTEE. The Committee shall have all powers and
duties and only the powers and duties as are specifically conferred upon it
by this Plan or as the Employer may delegate to or impose upon it
consistent with the provisions of this Plan, ERISA and the Code. Without
limiting the generality of the foregoing, the Committee shall have the
following powers and duties:
(A) to interpret and construe the terms and provisions of this Plan and to
decide which may arise hereunder, including but not limited to --
(1) the amount of a Participant's Compensation,
(2) a Participant's Years of Service,
(3) the age of any person who might be entitled to receive benefits,
(4) the right of any person to receive benefits,
(5) the amount of any benefits to be paid to any persons;
(B) to cause to be maintained all necessary records and accounts under
this Plan and to keep in convenient form any data as may be necessary
for valuation of the assets and liabilities;
(C) to rely upon the records of the Employer or upon any certificate,
statement or other representation made to it by a Participant, a
Beneficiary, the authorized representative of the Participant or
Beneficiary, or the Trustee concerning any fact required to be
determined under any of the provisions of this Plan, and the Committee
shall not be required to make inquiry into the propriety of any action
by the Employer or the Trustee;
(D) to give written notice to a Participant, a Beneficiary, or the
authorized representative of the Participant or Beneficiary, of the
amount of benefits payable under this Plan;
PAGE 77
(E) to make and enforce any rules, not inconsistent with this Plan, as it
shall deem necessary or proper for the efficient administration of
this Plan;
(F) to have and exercise such other authority as it deems necessary to
carry out the purposes and provisions of this Plan, provided that any
act of discretion permitted shall be exercised in a uniform
non-discriminatory manner with respect to individuals in like or
similar circumstances;
(G) to adopt rules and guidelines for the administration of this Plan,
provided that they are not inconsistent with the terms of this Plan
and are uniformly applicable to all persons similarly situated and to
delegate in accordance with Section 11.8 such functions and duties as
the Committee deems advisable;
(H) to establish a funding policy and investment objectives consistent
with the purposes of the Plan and the requirements of law;
(I) to employ such attorneys, accountants and agents as it shall determine
to assist it in carrying out its duties hereunder.
Except as otherwise provided in this Plan or determined by the Employer,
any action or determination taken or made by the Committee or any
interpretation or construction made by the Committee shall be final and
shall be binding upon all persons. The Committee shall at all times
exercise the power and authority given to it under this Plan in a fair,
reasonable and non-discriminatory manner.
11.3 ACTIONS OF THE COMMITTEE. Any act authorized or required to be taken by the
Committee shall be taken by a decision of the majority of the members
acting at the time. Any decision of the Committee may be expressed by a
vote at a Committee meeting or in writing, signed by all members of the
Committee, without a meeting. All allocation statements, notices,
directions, approvals, instructions and all other communications required
or authorized to be given by the Committee under this Plan shall be in
writing and signed by a majority of the members of the Committee. The
Committee may, however, by an instrument in writing signed by all the
members and filed with the Trustee, designate one or more if its members as
having the authority to sign all such communications on behalf of the
Committee. Until notified in writing to the contrary, the Trustee shall be
fully protected in acting in accordance with all communications which it
considers genuine and to have been signed on behalf of the Committee by the
members authorized to sign communications. If at any time for any reason
the Committee shall be unable to act with respect to any matter, the
Employer shall act with respect to that matter and its action shall be
final and it shall be binding upon all persons.
11.4 RESIGNATION, REMOVAL AND DESIGNATION OF SUCCESSORS. Any member of the
Committee may resign at any time and any member may be removed by the
Employer with or without cause. In case of resignation, death, removal or
inability or failure for any cause of any member of the Committee to serve
or to continue to serve, a successor shall be appointed by the Employer.
The Committee shall promptly notify the Trustee of any change in its
membership.
11.5 COMMITTEE REVIEW. If any Participant, Spouse, Beneficiary, or other
authorized representative of a Participant, Spouse or Beneficiary shall
file an application with the Committee for benefits under
PAGE 78
the Plan and the application is denied, in whole or in part, such applicant
shall be notified of the denial in writing within ninety (90) days of
receipt of the claim. The notice to the applicant shall state that the
Committee has denied the application pursuant to the exercise of its
discretionary powers. This notice shall set forth the specific reasons for
the denial, specific reference to pertinent Plan provisions upon which the
denial is based, a description of any additional information needed to
perfect the claim with an explanation of why it is necessary and an
explanation of procedure for appeal.
Any Participant, Spouse, Beneficiary, or other authorized representative of
the Participant, Spouse or Beneficiary whose application for benefits has
been denied may, within sixty (60) days after receiving the notification,
make a written application to the Committee to review the denial. The
applicant may request that the review be made by written statements
submitted by the applicant and the Committee, at a hearing, or by both. Any
hearing shall be held in the main offices of the Employer on a date and
time as the Employer shall designate with at least seven (7) days notice to
the applicant unless the applicant accepts shorter notice. Within sixty
(60) days after the review has been completed, the Employer shall render a
written decision and shall send a copy to the applicant. This decision
shall include specific reasons for the decision, as well as specific
references to the pertinent Plan provisions upon which the decision is
based.
If the Participant, Spouse, Beneficiary, or other authorized representative
of a Participant, Spouse or Beneficiary does not file written notice with
the Employer at the times set forth above, the individual shall have waived
all benefits under this Plan other than as set forth in the notice from the
Committee.
11.6 RECORDS. The Committee shall keep or cause to be kept records of all
meetings, proceedings and actions held, undertaken or performed by it and
shall furnish to the Employer reports as the Employer may request.
11.7 COMPENSATION. The members of the Committee shall serve without compensation
for services as such, but all reasonably incurred fees and expenses shall
be paid by the Employer.
11.8 DESIGNATION OF NAMED FIDUCIARIES AND ALLOCATION OF RESPONSIBILITY AMONG
FIDUCIARIES. The Employer, the Committee and the Trustee shall be "Named
Fiduciaries" with respect to this Plan as that term is defined in ERISA.
The Named Fiduciaries shall have only those specific powers, duties,
responsibilities and obligations as are given to them under this Plan. The
Named Fiduciaries may designate any person or persons as a fiduciary and
may delegate to such person or persons any one or more of their powers,
functions, duties and responsibilities with respect to the Plan as set
forth in this Plan, authorizing or providing for such direction,
information or action. Any such designation shall be made in writing and
shall become effective upon written acceptance. No such designation or
delegation by the Employer or the Committee of any of its powers, authority
or responsibilities to the Trustee shall become effective unless such
designation or delegation shall first be accepted by the Trustee in a
writing signed by it and delivered to the Employer or the Committee, as
applicable. Furthermore, each Named Fiduciary may rely upon any such
direction, information or action of another Named Fiduciary as being proper
under this Plan and is not required to inquire into the propriety of any
such direction, information or action. It is intended that under this Plan
each Named Fiduciary shall be responsible for the proper exercise of its
own powers, duties, responsibilities and obligations and shall not be
responsible for act or failure to act of another fiduciary.
PAGE 79
11.9 NOTICE BY COMMITTEE OR EMPLOYER. Any communication or notice to any person
by the Committee or the Employer shall be in writing and may be given by
delivery to the person or by first class mail with postage prepaid
addressed to the person at the last address on file with the Committee or
the Employer. Any notice delivered as provided above shall be deemed to
have been given when delivered, and any notice mailed as provided above
shall be deemed to have been given when mailed.
11.10 LOANS TO PARTICIPANTS.
(A) (1) In accordance with Section 11.8 above, the Committee is hereby
designated as the named fiduciary with sole authority and
responsibility to approve or deny loans and, except as provided
in subsections (G) and (H) of this Section, collect unpaid loans,
in accordance with the provisions of this Section 11.10. This
Section 11.10 shall apply if the Employer is eligible to and
elects Item B(16) of the Adoption Agreement.
(2) Subject to the consent of the Committee, loans may be made upon
approval of the written application of a Participant or
Beneficiary submitted to the Committee. Such application shall be
submitted during a specified period established by the Committee
prior to the date the loan is to be made. The Committee shall
notify the Participant or Beneficiary whether the loan has been
approved or denied. Loans shall be made available to all
Participants and Beneficiaries on a reasonably equivalent basis,
except that no loans will be made to any Stockholder-Employee or
Owner-Employee and no loan shall be made to any Participant which
the Committee, upon reviewing the Participant's written
application determines may be reasonably expected to be unable to
repay the loan. Loans shall not be made available to Highly
Compensated Employees (as defined in Section 414(q) of the Code)
in an amount greater than the amount made available to other
Employees. Except for loans made prior to the date this Plan is
adopted, a Participant or Beneficiary shall have no more than
five loans outstanding at any given time.
(3) All loans will be adequately secured and will bear a reasonable
rate of interest. Rates of interest will be determined daily by
the Trustee for Plan loans. The Committee will determine the
minimum loan amount for the Plan.
(B) In reviewing and approving or denying loan applications hereunder, the
Committee shall bear sole responsibility for ensuring compliance with
all applicable federal or state laws and regulations, including the
federal Truth In Lending Act (15 U.S.C. Section 1601 et seq.), and
Equal Credit Opportunity Act (15 U.S.C. Section 1691 et seq.). The
Committee shall upon request supply the Trustee with evidence that it
has complied with such federal or state law.
(C) Notwithstanding Section 7.13 above, each loan made hereunder shall be
secured by a written assignment, in favor of the Plan, of that portion
of the Participant's accounts which the Committee determines to be
necessary to adequately secure repayment of the loan.
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(D) A Participant must obtain the consent of his or her Spouse, if any, to
use the account balance as security for the loan. Spousal consent
shall be obtained no earlier than the beginning of the ninety (90) day
period that ends on the date the loan is to be so secured. The consent
must be in writing and must be witnessed by a Plan representative or
Notary Public. Such consent shall thereafter be binding with respect
to the consenting spouse or any subsequent spouse with respect to that
loan. A new consent shall be required if the account balance is used
for renegotiation, extension, renewal, or other revision of the loan.
Notwithstanding the preceding paragraph, no spousal consent is
required for the use of the account balance as security for a Plan
loan to the Participant under a safe-harbor profit sharing Plan as
described in Section 7.10(F).
(E) No loan shall be approved by the Committee to any Participant or
Beneficiary in any amount which exceeds the lesser of
(1) $50,000, reduced by the excess (if any) of-
(a) the highest outstanding balance of loans from the Plan
during the one-year period ending on the day before the date
on which such loan was made, over,
(b) the outstanding balance of loans from the Plan on the date
on which such loan was made, or
(2) fifty percent (50%) of the present value of the Participant's
nonforfeitable accrued benefit.
For purposes of the above limitation, all loans from all plans of the
Employer and other members of a group of employers described in
Sections 414(b), (c), (m) and (o) of the Code are aggregated.
The term of the loan shall be determined by the Committee.
Furthermore, any loan shall, by its terms require that repayment
(principal and interest) be amortized in level payments, not less
frequently than quarterly over a period not extending beyond five
years from the date of the loan, except that the Committee, in its
discretion, may permit a repayment period in excess of five years for
loans made to a Participant or Beneficiary used to acquire a dwelling
unit which, within a reasonable time (determined at the time the loan
is made) will be used as a principal residence of the borrower.
An assignment or pledge of any portion of the participant's interest
in the Plan will be treated as a loan under this paragraph.
(F) Each loan hereunder shall be made pro rata from the borrowing
Participant's available accounts and Investment Funds. Loan
repayments shall generally be made via payroll deduction, except that
the repayment of outstanding principal at maturity, in the event the
loan is called, or in the event the Participant chooses to prepay the
loan shall be made in such manner as the Committee shall determine.
Loan repayments and interest thereon shall be credited to the
Investment Funds and accounts in accordance with current elections. No
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loan shall be considered a general investment of the Trust Fund. Each
loan shall be evidenced by a written agreement, evidencing the
Participant's obligation to repay the borrowed amount to the Plan, in
such form and with such provisions consistent with this Section 11.10
as is acceptable to the Trustee. All loan agreements shall be
deposited with the Trustee.
(G) In the event a Participant does not repay the principal of such loan
or interest thereon at such times as are required by the terms of the
loan or if the Participant ceases to be an Employee while such
Participant has a loan made hereunder which is outstanding, the
Committee, in its discretion, may direct the Trustee to take such
action as the Committee may reasonably determine, including:
(1) demand repayment of the loan and, subject to Section 10.4(K),
institute legal action against the Participant to enforce
collection of any balance due from the Participant, or
(2) demand repayment of the loan, and charge the total amount of the
unpaid loan and unpaid interest against the balance credited to
the Participant's vested account balance which was assigned as
security for the loan and reduce any payment or distribution from
the Trust Fund to which the Participant or the Participant's
Beneficiary may become entitled to the extent necessary to
discharge the obligation on the loan.
Notwithstanding the foregoing provisions of this Paragraph (G), in the
event of default, foreclosure on the note and attachment of security
will not occur until a distributable event occurs in the Plan.
(H) In the event the Committee fails or refuses for any reason to direct
the Trustee as provided in Paragraph (G) above or if the Trustee
otherwise reasonably concludes that the collectibility of a loan
hereunder is in jeopardy, the Trustee is authorized to take such
action as it may reasonably determine to enforce repayment and
satisfaction of the loan. The Employer shall be responsible for costs
and expenses incurred in collecting any loan balance.
(I) In the event that the amount of any payment or distribution from the
Trust Fund is insufficient to repay the balance due on any loan, the
Participant shall be liable for and continue to make repayments on
such balance.
(J) If a valid spousal consent has been obtained in accordance with
Paragraph (D), then, notwithstanding any other provision of this Plan,
the portion of the Participant's vested account balance used as a
security interest held by the Plan by reason of a loan outstanding to
the Participant shall be taken into account for purposes of
determining the amount of the account balance payable at the time of
death or distribution, but only if the reduction is used as repayment
of the loan. If less than 100% of the Participant's vested account
balance (determined without regard to the preceding sentence) is
payable to the surviving Spouse, then the account balance shall be
adjusted by first reducing the vested account balance by the amount of
the security used as repayment of the loan, and then determining the
benefit payable to the surviving Spouse.
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ARTICLE XII
FAILURE TO ATTAIN OR RETAIN QUALIFIED STATUS
12.1 FAILURE TO QUALIFY AS A PROTOTYPE. This Plan is established with the intent
that it shall qualify under Section 401 of the Code and that it shall
comply with ERISA and all other applicable laws, regulations and rulings.
It may be modified and amended retroactively, if necessary, to secure such
qualification. Should the Internal Revenue Service determine that this Plan
does not qualify under the Code or any statute of similar import, or fails
or refuses to issue an opinion, and if the Plan is not amended, as
required to qualify, before the time allowed by law for the Employer to
file its corporate federal tax return for the taxable year in which the
Effective Date occurs, the Plan shall be considered to be rescinded and of
no force and effect. Any assets attributable to contributions made by the
Employer shall be returned to the Employer by the Trustee as soon as
administratively feasible. The Employer shall refund to the Participant any
contributions made by the Participant to the Plan.
12.2 FAILURE OF EMPLOYER TO ATTAIN OR RETAIN QUALIFICATION. If the Employer's
Plan fails to attain or retain qualification, such Plan will no longer
participate in this prototype Plan and will be considered an individually
designed Plan.
ARTICLE XIII
MISCELLANEOUS
13.1 EMPLOYER ACTION. Except as may be specifically provided herein, any
action required or permitted to be taken by the Employer may be taken on
behalf of the Employer by any officer of the Employer.
13.2 NO GUARANTEE OF INTERESTS. Neither the Trustee, the Employer nor any other
named fiduciary in any way guarantees the Trust Fund from loss or
depreciation, nor do they guarantee any payment to any person. The
liability of the Trustee, the Employer and a named fiduciary to make any
payments hereunder is limited to the available assets of the Trust Fund.
13.3 EMPLOYMENT RIGHTS. The Plan is not a contract of employment. Participation
in the Plan will not give any Participant the right to be retained in the
Employer's employ, nor any right or claim to any benefit under the Plan,
unless the right or claim has specifically accrued under the Plan.
13.4 INTERPRETATIONS AND ADJUSTMENTS. To the extent permitted by law, an
interpretation of the Plan and a decision on any matter within a named
fiduciary's discretion made in good faith is binding on all persons. A
misstatement or other mistake of fact shall be corrected when it becomes
known and the person responsible shall make such adjustment on account
thereof as he or she considers equitable and practicable.
13.5 UNIFORM RULES. In the administration of the Plan, uniform rules will be
applied to all Participants similarly situated.
13.6 EVIDENCE. Evidence required of anyone under the Plan may be by certificate,
affidavit, document or other information which the person acting on it
considers pertinent and reliable and signed, made or presented by the
proper party or parties.
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13.7 WAIVER OF NOTICE. Any notice required under the Plan may be waived by the
person entitled to notice.
13.8 CONTROLLING LAW. The law of the state where the Trustee is located shall
be the controlling state law in all matters relating to the Plan and shall
apply to the extent that it is not preempted by the laws of the United
States of America.
13.9 TAX EXEMPTION OF TRUST. The trust herein created is designated as
constituting a part of a Plan intended to qualify under Sections 401(a) of
the Code and to be tax-exempt under Section 501(a) of the Code.
13.10 COUNTERPARTS. The Plan may be executed in two or more counterparts, any
one of which will be an original without reference to the others.
13.11 ANNUAL STATEMENT OF ACCOUNT. The assets of the Trust Fund will be valued
annually at fair market as of the last day of each Plan Year. On such date
the earning and losses of the Trust Fund will be allocated to each
Participant's accounts in the ratio that such account balance bears to all
account balances. The Trustee will deliver to the Employer a statement of
each Participant's account balances as of the last day of Plan Year.
13.12 NO DUTY TO INQUIRE. No person shall have any duty to make any inquiry as
to the application or use of the Trust Fund, or any part thereof, or to
inquire into the validity, expediency or propriety of any matter or thing
done or proposed to be done by the Trustee.
13.13 INVALIDITY. In case any provisions of this Plan shall be invalid, this
fact shall not affect the validity of any other provision.
13.14 TITLES. Titles to Articles and Sections are for convenience only and shall
have no bearing upon the construction or interpretation of this Plan.
13.15 NO DUTY OF TRUSTEE TO COLLECT CONTRIBUTIONS. The Trustee shall be
accountable for all contributions received but shall have no duty to
require any contributions to be delivered or to determine if the
contributions received comply with the Plan or with any Board of Directors
resolution of the Employer providing for contributions.
13.16 TRUSTEE DISTRIBUTES BY COMMITTEE DIRECTION. The Trustee shall make
distributions only through Committee direction. The Trustee shall have no
responsibility to see how distributions are applied or to ascertain
whether the Committee's directions comply with the Plan. Notwithstanding
anything in the Plan to the contrary, payments made in accordance with
these provisions will continue only so long as amounts remain in the
Participant's accounts.
ARTICLE XIV
AMENDMENT OR TERMINATION
14.1 AMENDMENT BY THE SPONSOR. Society National Bank, the sponsoring
organization, reserves the right without being required to obtain the
approval of the Employer to amend any part of the Plan from time to
time, subject to the provisions of Article XII, Section 14.2 and the
following:
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(A) Except as provided in Section 14.1(B) and (C), no amendment shall
become effective until at least thirty (30) days' prior written
notice (unless the Employer agrees to shorter notice) has been given
to the Employer, nor shall any such amendment reduce Participants'
benefits to less than the benefits to which they would have been
entitled if they had resigned from the employ of the Employer on the
effective date of the amendment;
(B) An amendment of the Plan and Trust which the sponsor deems necessary
to enable the Plan and Trust to meet the requirements of Section
401(a) of the Code may be made effective as of the date the Plan and
Trust was established by the sponsor or as of any subsequent date;
(C) An amendment of the Plan and Trust to conform the Plan and Trust to
any change in the law, regulations or rulings of the United States may
take effect as of the date such amendment is required to be
effective. Any amendment executed pursuant to the provisions of this
Section 14.1 shall be executed by an authorized officer of the
sponsor, or its successor. For purposes of this Section 14.1, the
Employer shall be deemed to have been furnished a copy of any
amendment on the business day next following the mailing by the
sponsor or the Trustee.
14.2 AMENDMENT BY ADOPTING EMPLOYER. The Employer may (1) change the choice of
options in the Adoption Agreement, (2) add overriding language in the
Adoption Agreement when such language is necessary to satisfy Section 415
or Section 416 of the Code because of the required aggregation of multiple
plans, and (3) add certain model amendments published by the Internal
Revenue Service which specifically provide that their adoption will not
cause the Plan to be treated as individually designed. An Employer that
amends the Plan for any other reason, including a waiver of the minimum
funding requirement under Section 412(d) of the Code, will no longer
participate in this Master or Prototype Plan and will be considered to have
an individually designed Plan.
14.3 VESTING - PLAN TERMINATION. In the event of termination or partial
termination of the Plan, the account balance of each affected Participant
will be nonforfeitable.
14.4 VESTING - COMPLETE DISCONTINUANCE OF CONTRIBUTIONS. In the event of a
complete discontinuance of contributions under the Plan, the account
balance of each affected Participant will be nonforfeitable.
14.5 PLAN MERGER - MAINTENANCE OF BENEFIT. In the event of a merger or
consolidation with, or transfer of assets to any other Plan, each
Participant will receive a benefit immediately after the merger,
consolidation or transfer (if the Plan then terminated) which is at least
equal to the benefit the Participant was entitled to immediately before
such merger, consolidation or transfer (if the Plan had then terminated).
14.6 DIRECT TRANSFER. In its discretion, the Trustee may accept the direct
transfer of Plan assets from the trustee of other retirement plans
described in Code Section 401(a). If the Plan receives a direct transfer
of elective deferrals (or amounts treated as elective deferrals) under a
Plan with a Code Section 401(k) arrangement, the distribution restrictions
of Code Sections 401(k)(2) and (10) continue to apply to those transferred
elective deferrals.
PAGE 85
14.7 TERMINATION OF PARTICIPATION BY EMPLOYER. The Employer expects to continue
its participation in this Plan indefinitely but reserves the right to
terminate this Plan as to its Employees at any time by written instrument
filed with the Trustee. In the event of such termination, partial
termination or complete discontinuance of contributions, or termination as
provided in Section 13.3, the account balance of each affected Participant
will be nonforfeitable. Distribution to Participants who have theretofore
become entitled to the payment of any benefits hereunder or to Spouses or
Beneficiaries of deceased Participants shall be made in the same manner as
if the Employer's participation had not terminated or contributions had not
been discontinued.
The account(s) of each such Participant, in the event of payment in other
than a single sum, need not be converted into cash, but may continue to
remain in the trust, with a right and obligation thereafter to participate
in the net earnings, losses, taxes and expenses of the trust.
If any Participant shall die after the termination of the Employer's
participation and before all of said Participant's interest has been paid,
then, upon the written direction of Employer, the entire undistributed
portion shall be paid in a single sum to the Participant's Beneficiary.
In the event of complete discontinuance of contributions, the Employer
shall terminate this Plan as to its Employees and each Participant's
interest shall be distributed to such Participant.
14.8 NOTICE OF AMENDMENT, TERMINATION OR PARTIAL TERMINATION. The Committee will
notify affected Participants of an amendment, termination or partial
termination of the Plan within a reasonable time.
14.9 SUBSTITUTION OF TRUSTEE. Any corporation or association into which the
Trustee may be converted, merged or with which it may be consolidated, or
any corporation or association resulting from any conversion, merger,
reorganization or consolidation to which the Trustee may be a party, shall
be the successor of the Trustee hereunder without the execution or filing
of any instrument or the performance of any further act.
ARTICLE XV
DISCHARGE OF DUTIES BY FIDUCIARIES
15.1 DISCHARGE OF DUTIES. Subject to the provisions of Articles IX and X, the
Named Fiduciaries and any other fiduciary shall discharge their respective
duties set forth in the Plan solely in the interest of the Participants
and their Spouses and Beneficiaries and:
(A) for the exclusive purpose of:
(1) providing benefits to Participants and their Spouses and
Beneficiaries; and
(2) defraying reasonable expenses of administering the Plan;
(B) with the care, skill, prudence and diligence under the circumstances
then prevailing that a prudent person acting in a like capacity and
familiar with such matters would use in the conduct of an enterprise
of a like character and with like aims; and
PAGE 86
(C) by diversifying 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.
ARTICLE XVI
AMENDMENT AND CONTINUATION OF ORIGINAL PLAN
16.1 AMENDMENT AND CONTINUATION. Notwithstanding any of the foregoing provisions
of the Plan to the contrary, an Employer which has previously established a
profit sharing Plan and trust or money purchase pension Plan and trust, as
applicable, (the "Original Plan") may, in accordance with the provisions of
the Original Plan, amend and continue that Plan in the form of this Plan
and Trust and become an Employer hereunder, subject to the following:
(A) Subject to the conditions and limitations of the Plan, each person who
is a Participant or former Participant under the Original Plan
immediately prior to the Effective Date of the amendment and
continuation thereof in the form of this Plan will continue as a
Participant under this Plan;
(B) The words "Original Plan" shall be substituted for the word "Plan"
where the word appears in Section 2.2 of the Plan;
(C) No election may be made in the Adoption Agreement if such election
will reduce the benefits of a Participant under the Original Plan to
less than the benefits to which he would have been entitled if he had
resigned from the employ of the Employer on the date of the amendment
and continuation of the Original Plan in the form of this Plan;
(D) The amounts, if any, credited to a Participant's or former
Participant's accounts, immediately prior to the Effective Date of the
amendment and continuation of the Original Plan in the form of this
Plan shall constitute the opening balances in his or her accounts, as
appropriate, under this Plan and Trust;
(E) Amounts being paid to a former Participant or Beneficiary in
accordance with the provisions of the Original Plan shall continue to
be paid in accordance with such provisions; and
(F) Any Beneficiary designation in effect under the Original Plan
immediately before its amendment and continuation in the form of this
Plan shall be deemed to be a valid Beneficiary designation filed with
the Employer under Section 7.7 of this Plan, to the extent consistent
with the provisions of this Plan, unless and until the Participant or
former Participant revokes such Beneficiary designation or makes a new
Beneficiary designation under this Plan.
IN WITNESS WHEREOF, Society National Bank has established this prototype
Plan as of the 24th day of March, 1995.
SOCIETY NATIONAL BANK
By:
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Title: Senior Vice President and General Counsel
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