EXHIBIT 10.06
XXXXX INDUSTRIES, INC. NON-QUALIFIED RETIREMENT PLAN
THIS INDENTURE is made as of this 1st day of November, 1997, by Xxxxx
Industries, Inc., a corporation duly organized and existing under the laws of
the State of Delaware (hereinafter called the "Primary Sponsor").
W I T N E S S E T H:
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WHEREAS, the Primary Sponsor and certain of its affiliates maintain the
Xxxxx Industries, Inc. Employees' Retirement Savings 003 Plan (the "003 Plan")
and/or the Xxxxx Industries, Inc. Employees' Retirement Savings 004 Plan (the
"004 Plan"), both of which are defined contribution plans under which
participating employees may contribute on a pre-tax basis pursuant to a
qualified cash or deferred arrangement within the meaning of Section 401(k) of
the Internal Revenue Code of 1986.
WHEREAS, the limitations of Sections 401(a)(17), 401(k)(3), 401(m), 402(g)
and 415 of the Internal Revenue Code of 1986 may, separately or in combination,
limit the amount of pre-tax employee contributions and employer matching
contributions that otherwise could be made under the 003 Plan and the 004 Plan
on behalf of certain participants.
WHEREAS, effective January 1, 1995, the Primary Sponsor established the
Xxxxx Industries, Inc. Non-Qualified Retirement Plan (the "Plan") for the
benefit of those 003 Plan participants whose benefits under those plans may be
limited by one or more of those Internal Revenue Code limitations described
above for the purpose of providing, to the extent possible on a non-qualified
and unfunded basis, an opportunity for such participants to continue to
accumulate retirement savings as if such persons had been able to continue to
participate in the 003 Plan without regard to such limitations in addition to an
opportunity to accumulate retirement savings separate and apart from
participation in the 003 Plan.
WHEREAS, effective November 1, 1997, the Primary Sponsor desires to amend
the Plan, among other reasons, to clarify that its provisions extend to eligible
participants under the 004 Plan.
NOW, THEREFORE, the Primary Sponsor does hereby amend and restate the Plan
in its entirety, effective as of the date first above written, to read as
follows:
XXXXX INDUSTRIES, INC. NON-QUALIFIED RETIREMENT PLAN
TABLE OF CONTENTS
PAGE
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SECTION 1 DEFINITIONS................................................................................ 3
SECTION 2 ELIGIBILITY................................................................................ 5
SECTION 3 CONTRIBUTIONS.............................................................................. 5
SECTION 4 CREDITING ACCOUNTS......................................................................... 7
SECTION 5 EMERGENCY WITHDRAWALS...................................................................... 7
SECTION 6 DEATH BENEFITS............................................................................. 8
SECTION 7 PAYMENT OF BENEFITS ON RETIREMENT OR DEATH................................................. 8
SECTION 8 PAYMENT OF BENEFITS ON OTHER TERMINATIONS OF EMPLOYMENT.................................... 9
SECTION 9 ADMINISTRATION OF THE PLAN................................................................. 9
SECTION 10 CLAIM REVIEW PROCEDURE..................................................................... 11
SECTION 11 LIMITATION OF ASSIGNMENT, PAYMENTS TO LEGALLY INCOMPETENT DISTRIBUTEE AND
UNCLAIMED PAYMENTS......................................................................... 12
SECTION 12 LIMITATION OF RIGHTS....................................................................... 13
SECTION 13 AMENDMENT TO OR TERMINATION OF THE PLAN.................................................... 13
SECTION 14 ADOPTION OF PLAN BY AFFILIATES............................................................. 13
SECTION 15 MISCELLANEOUS.............................................................................. 14
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SECTION 1
DEFINITIONS
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Whenever used herein, the masculine pronoun shall be deemed to include the
feminine, and the singular to include the plural, unless the context clearly
indicates otherwise, and the following words and phrases shall, when used
herein, have the meanings set forth below:
1.1 "Account" means the bookkeeping accounts established and maintained by
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the Plan Administrator to reflect the interest of a Member under the Plan and
shall include the following:
(a) "Employee Deferral Account" which shall reflect credits to a
-------------------------
Member's Account made on his or her behalf pursuant to Section 3.1, as
adjusted to reflect other credits or charges.
(b) "Employer Base Account" which shall reflect credits to a Member's
---------------------
Account made on his or her behalf pursuant to Section 3.2 and, if
applicable Section 3.5, as adjusted to reflect other credits or charges.
(c) "Employer Matching Account" which shall reflect credits to a
-------------------------
Member's Account made on his or her behalf pursuant to Section 3.3 and, if
applicable, Section 3.5, as adjusted to reflect other credits or charges.
(d) "Profit Sharing Account" which shall reflect credits to a Member's
----------------------
Account made on his or her behalf pursuant to Section 3.4, as adjusted to
reflect other credits or charges.
1.2 "Accrued Benefit" means the balance of a Member's Account.
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1.3 "Affiliate" means (a) any corporation which is a member of the same
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controlled group of corporations (within the meaning of Code Section 414(b)) as
is a Plan Sponsor and (b) any other trade or business (whether or not
incorporated) under common control (within the meaning of Code Section 414(c))
with a Plan Sponsor.
1.4 "Annual Compensation" means "Compensation," as that term is defined
-------------------
under the 003 Plan or 004 Plan, as applicable, for purposes of making
contributions pursuant to a salary deferral election, as the same may be amended
from time to time, but without regard to the limit on compensation that may be
recognized under Code Section 401(a)(17), plus any Deferral Amounts credited to
a Member during the Plan Year.
1.5 "Beneficiary" means the person or persons designated by the Member (and
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in the absence of any such designation, the Member's estate) to receive the
Member's Account in the
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event of the Member's death.
1.6 "Board of Directors" means the Board of Directors of the Primary
------------------
Sponsor.
1.7 "Code" means the Internal Revenue Code of 1986, as amended.
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1.8 "Deferral Amounts" means amounts credited to the Employee Deferral
----------------
Account of a Member at the election of a Member pursuant to Section 3.1.
1.9 "Disability" means a condition determined to exist pursuant to the
----------
definition of the term "Disability" under the 003 Plan or 004 Plan, as
applicable.
1.10 "Disabled Employee" means each former Eligible Employee who terminates
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active employment as a result of a Disability.
1.11 "Eligible Employee" means a member of a select group of management or
-----------------
highly compensated employees of a Plan Sponsor who is designated as being
eligible to participate in the Plan pursuant to Section 2.
1.12 "Employee" means any person who is classified by a Plan Sponsor or an
--------
Affiliate as a common law employee.
1.13 "Member" means any Eligible Employee or former Eligible Employee who
------
has become a participant in the Plan, for so long as his or her benefits
hereunder have not been paid out.
1.14 "Plan Administrator" means the organization or person designated by
------------------
the Primary Sponsor to administer the Plan or, in the absence of any such
designation, the Primary Sponsor.
1.15 "Plan Sponsor" means individually the Primary Sponsor and any other
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Affiliate or other entity which has adopted the Plan pursuant to Section 14.
1.16 "Plan Year" means each fiscal year beginning November 1 through
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October 31, 1997, the short period from November 1, 1997 through December 31,
1997 and, thereafter, the calendar year.
1.17 "Retirement Date" means the date on which the Member retires on or
---------------
after (a) attaining age 65, or (b) becoming subject to a Disability.
1.18 "Valuation Date" means each business day or any other day which the
--------------
Plan Administrator declares to be a Valuation Date.
1.19 "Withdrawal Circumstance" means a circumstance permitting a hardship
-----------------------
withdrawal under the 003 Plan or 004 Plan, as applicable. The Plan
Administrator retains the sole
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discretion to approve or deny any request for an in-service withdrawal based
upon a Withdrawal Circumstance. In no event, however, will a request be approved
to the extent a Withdrawal Circumstance is or may be relieved (a) through
reimbursement or compensation by insurance or otherwise, (b) by liquidation of
the Member's assets, to the extent the liquidation of such assets would not
itself cause severe financial hardship; or (c) by cessation of active
participation in the Plan.
SECTION 2
ELIGIBILITY
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2.1 Eligibility. An Eligible Employee shall become a Member after (a) being
-----------
designated for membership in the Plan by appropriate action of the Director of
Human Resources of the Primary Sponsor; and (b) completing an enrollment form
prescribed by the Plan Administrator in which the Eligible Employee elects to
participate in the Plan. A Member's election to participate shall be effective
until the Member notifies the Plan Administrator, in such manner and form as the
Plan Administrator shall from time to time prescribe, that the Member wishes to
suspend active participation. A Member who suspends active participation under
the Plan may resume active participation in the Plan by delivering a new
enrollment form to the Plan Administrator. A Member may modify his or her
election or, if applicable, resume active participation in the Plan effective as
of the beginning of the payroll period immediately following the date such
enrollment is processed and made effective pursuant to the Plan Administrator's
normal administrative procedures then in effect.
2.2 Effective Date of Participation. Eligible Employees shall be eligible
-------------------------------
to participate in the Plan as of the date the Eligible Employee is designated
for participation in the Plan pursuant to Section 2.1.
2.3 Cessation of Participation. A Member who ceases to be an Eligible
--------------------------
Employee will no longer be eligible to make further deferrals under the Plan
pursuant to Section 3, but shall continue to be subject to all other terms of
the Plan so long as he or she remains a Member of the Plan.
2.4 Coordination with 401(k) Arrangements. In the event the Member
-------------------------------------
participates in a plan of a Plan Sponsor or Affiliate intended to qualify under
Code Section 401(a) and containing a tax-qualified cash or deferred arrangement
qualified under Code Section 401(k), the Member shall be suspended from
continued participation under this Plan to the extent required by such other
plan as a result of a hardship withdrawal made by such Member under such other
plan.
SECTION 3
CONTRIBUTIONS
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3.1 Deferral Amounts. (a) Each Plan Year a Member who is an Eligible
----------------
Employee for all or any portion of the Plan Year and who has an effective
enrollment form
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on file with the Plan Administrator shall be deemed to have elected to
defer under the Plan that portion of the Annual Compensation otherwise
payable to him or her for the Plan Year which the Member has elected to
defer under the 003 Plan or 004 Plan, as applicable, but which can not be
deferred under that plan because of one or more of the following
limitations: (i) the provisions relating to the annual limit on salary
deferrals set forth in Code Section 402(g); (ii) the provisions relating to
the limit on includable compensation as set forth in Code Section
401(a)(17); (iii) the provisions relating to the non-discrimination testing
limitations under Code Sections 401(k)(3) or 401(m); or (iv) the provisions
relating to the limit on "annual additions," within the meaning of Code
Section 415.
(b) Each Plan Year a Member (i) who is an Eligible Employee for all
or any portion of the Plan Year; (ii) who has an effective enrollment form
on file with the Plan Administrator; and (iii) (A) who has in effect an
election to make the maximum elective deferrals under the 003 Plan or 004
Plan, as applicable, for which matching contributions may be made under
that plan or (B) who has not met the eligibility requirements to
participate in the 003 Plan or 004 Plan, as applicable, may also elect to
defer under the Plan a separate percentage of Annual Compensation otherwise
payable to him or her for the Plan Year; provided such election may not
apply to more than fifteen percent (15%) of the Member's Annual
Compensation.
3.2 Base Contributions. Each Plan Sponsor which also sponsors the 003 Plan
------------------
proposes to credit on behalf of each Member employed by that Plan Sponsor (other
than Members to whose Employer Base Accounts amounts are not to be credited) for
the Plan Year an amount equal to three percent (3%) of the Member's Annual
Compensation in excess of the dollar limitation then in effect pursuant to Code
Section 401(a)(17).
3.3 Matching Contributions. Each Plan Sponsor proposes to credit on behalf
----------------------
of each Member employed by that Plan Sponsor (other than Members to whose
Employer Matching Accounts amounts are not to be credited) for allocation to
that Member's Employer Matching Account an amount equal to (X) reduced by (Y)
where:
(a) (X) an amount determined by applying the matching contribution
provisions of the 003 Plan or 004 Plan, as adopted by the Plan Sponsor,
(but without regard to any direct or indirect limitation described under
Section 3.1(a)) to the aggregate elective deferrals made on behalf of the
Member under the 003 Plan or 004 Plan, as applicable, and the Deferral
Amounts made on behalf of the Member under the Plan for the applicable
period; and
(b) (Y) is the matching contribution actually credited to the Member
for the same period under the 003 Plan or 004 Plan, as applicable.
3.4 Profit Sharing Contributions. Each Plan Sponsor which also sponsors the
----------------------------
003 Plan and makes a discretionary profit sharing contribution under that plan
for the Plan Year proposes to
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credit on behalf of each Member employed by that Plan Sponsor (other than
Members to whose Profit Sharing Accounts amounts are not to be credited) for
allocation to that Member' Profit Sharing Account an amount equal to (X) reduced
by (Y) where:
(a) (X) the amount which would have been credited to the Member under
the 003 Plan determined by applying the discretionary profit sharing
contribution provisions of the 003 Plan (but without regard to any
applicable limitation described under Section 3.1(a)) for the period; and
(b) (Y) is the discretionary profit sharing contribution actually
credited to the Member for the same period under the 003 Plan.
3.5 Contributions on Behalf of Disabled Employees. In lieu of any
---------------------------------------------
contributions pursuant to Section 3.2 and 3.3 for a Plan Year, each Plan Sponsor
which also sponsors the 003 Plan proposes to credit on behalf of each Member who
is a Disabled Employee of that Plan Sponsor (other than Disabled Employees who
are Normal Retirement Age or older or who recover and are no longer a Disabled
Employee) contributions equal to the amounts (but without regard to any direct
or indirect limitation described under Section 3.1(a)) described under Sections
4.1 and 4.3 of the 003 Plan for allocation to that Member's appropriate
subaccounts.
SECTION 4
CREDITING ACCOUNTS
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4.1 As soon as reasonably practicable following the date of withholding by
the Plan Sponsor, Deferral Amounts previously elected by a Member shall be
credited to the Member's Employee Deferral Account.
4.2 No later than as of the last day of each Plan Year or at such earlier
times as the Plan Administrator shall determine, the amounts to be credited for
the applicable period pursuant to Sections 3.2, and 3.3 (and, to the extent
applicable, Sections 3.4 and 3.5) on behalf of a Member shall be credited to the
Member's Employer Base Account; Employer Matching Account or Profit Sharing
Account, as applicable.
4.3 As of each Valuation Date, each Member's Account (other than any
Member who has received a distribution of his or her Accrued Benefit prior to
that Valuation Date) shall be credited with rate(s) of return in a manner
prescribed by the Plan Administrator.
SECTION 5
EMERGENCY WITHDRAWALS
---------------------
5.1 The Plan Administrator may pay all or a portion of a Member's Account
prior to the time such amounts otherwise become payable in accordance with the
provisions of the Plan; provided, however, that the Member demonstrates that he
or she has a Withdrawal Circumstance.
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5.2 Distributions in the event of a Withdrawal Circumstance shall be made
to a Member only in accordance with such rules, policies, procedures,
restrictions, and conditions as the Plan Administrator may from time to time
adopt. Any determination of the amount to be distributed on account of a
Withdrawal Circumstance shall be made by the Plan Administrator in accordance
with rules applied in a uniform and nondiscriminatory manner. A payment under
this Section shall be made in a lump sum in cash to the Member and shall be
charged against the Member's Account as of the Valuation Date coinciding with or
immediately preceding the date of the payment.
5.3 Notwithstanding the foregoing, a Member who receives a payment of all
or any portion of his or her Account pursuant to this Section 5.3 shall be
suspended from making deferrals under Section 3 for a period of twelve (12)
months immediately following the date the Member receives a payment under this
Section 5.3.
SECTION 6
DEATH BENEFITS
--------------
6.1 Upon the death of a Member who dies prior to the date on which the
Member is entitled to the commencement of payments of his or her Account, the
Member's Beneficiary shall be entitled to the full value of the Member's
Account.
6.2 Upon the death of a Member who is no longer an Employee, but prior to
the complete payment of his or her Account, the Member's Beneficiary shall be
entitled to receive the entire unpaid vested portion of the Member's Account in
a lump sum in cash.
6.3 If, subsequent to the death of a Member, the Member's Beneficiary dies
while entitled to receive benefits under the Plan, the successor Beneficiary, if
any, or, if none, the Member's estate shall generally be entitled to receive
benefits under the Plan.
6.4 Except as otherwise provided in this Section 6, any benefit payable
under this Section 6 shall be paid in accordance with and subject to the
provisions of Section 7 after receipt by the Plan Administrator of notice of the
death of the Member.
SECTION 7
PAYMENT OF BENEFITS ON RETIREMENT OR DEATH
------------------------------------------
7.1 Upon the retirement or death of a Member, the Accrued Benefit of the
Member shall be determined as of the Valuation Date coinciding with or
immediately preceding the Member's Retirement Date or death, increased by
Deferral Amounts and matching contributions credited pursuant to Section 3.3 (or
Section 3.5, as applicable) and adjusted for interest credited pursuant to
Section 4.3 through the Valuation Date immediately preceding the date the
Accrued Benefit is paid. Payment of the Member's Accrued Benefit shall commence
as soon as practicable after the Retirement Date or death of the Member.
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7.2 The method of payment of the Accrued Benefit of a Member shall be
determined by the Primary Sponsor and may be in any form then authorized by the
003 Plan or 004 Plan, as applicable. If the Accrued Benefit is not paid in a
lump sum, the Member's Account will continue to be credited with a rate or rates
of return in accordance with Section 4.3 until the Account is fully distributed.
SECTION 8
PAYMENT OF BENEFITS ON OTHER TERMINATIONS OF EMPLOYMENT
-------------------------------------------------------
8.1 A Member shall be considered to have terminated employment with the
Plan Sponsor or any Affiliate on the date determined by the Plan Administrator.
Transfer of a Member from one Plan Sponsor to another Plan Sponsor shall not be
deemed for any purpose under the Plan to be a termination of employment by the
Member.
8.2 In the event of the termination of employment of a Member for reasons
other than those specified in Sections 6 and 7 above, the Accrued Benefit of the
Member shall be determined as of the Valuation Date coinciding with or
immediately preceding the date of the termination of employment and shall be
increased by any Deferral Amounts credited to the Employee Deferral Account of
the Member since that Valuation Date. While no further amounts credited
pursuant to any other provision of Section 3 shall be made to the Member's
Account after that Valuation Date, the Member's Account shall be adjusted for a
rate or rates of return credited pursuant to Section 4.3 through the Valuation
Date immediately preceding the date the Accrued Benefit is paid.
8.3 A Member shall be entitled to payment of his or her Accrued Benefit in
cash in a lump sum. Payment shall commence as soon as practicable following the
Member's termination of employment.
SECTION 9
ADMINISTRATION OF THE PLAN
--------------------------
9.1 Operation of the Plan Administrator. The Primary Sponsor shall be the
-----------------------------------
Plan Administrator, unless it appoints another Plan Administrator. If an
organization is appointed to serve as the Plan Administrator, then the Plan
Administrator may designate in writing a person who may act on behalf of the
Plan Administrator. The Primary Sponsor shall have the right to remove the Plan
Administrator at any time by notice in writing. The Plan Administrator may
resign at any time by written notice or resignation to the Primary Sponsor.
Upon removal or resignation, or in the event of the dissolution of the Plan
Administrator, the Primary Sponsor shall appoint a successor.
-9-
9.2 Duties of the Plan Administrator.
--------------------------------
(a) The Plan Administrator shall perform any act which the Plan
authorizes or requires of the Plan Administrator by action taken in
compliance with the Plan and may designate in writing other persons to
carry out its duties under the Plan. The Plan Administrator may employ
persons to render advice with regard to any of the Plan Administrator's
duties.
(b) The Plan Administrator shall from time to time establish rules,
not contrary to the provisions of the Plan, for the administration of the
Plan and the transaction of its business. All elections and designations
under the Plan by a Member or Beneficiary shall be made on forms prescribed
by the Plan Administrator. The Plan Administrator shall have discretionary
authority to construe the terms of the Plan and shall determine all
questions arising in the administration, interpretation and application of
the Plan, including, but not limited to, those concerning eligibility for
benefits and it shall not act so as to discriminate in favor of any person.
All determinations of the Plan Administrator shall be conclusive and
binding on all persons, subject to the provisions of the Plan and subject
to applicable law.
(c) The Plan Administrator shall furnish Members and Beneficiaries
with all disclosures now or hereafter required by the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"). The Plan Administrator
shall file, as required, the various reports and disclosures concerning the
Plan and its operations as required by ERISA and by the Code, and shall be
solely responsible for establishing and maintaining all records of the
Plan.
(d) The statement of specific duties for a Plan Administrator in this
Section is not in derogation of any other duties which a Plan Administrator
has under the provisions of the Plan or under applicable law.
(e) Each Plan Sponsor shall indemnify and hold harmless each person
constituting the Plan Administrator from and against any and all claims and
expenses (including, without limitation, attorney's fees and related costs)
arising in connection with the performance by the person of his or her
duties in that capacity, other than any of the foregoing arising in
connection with the willful neglect or willful misconduct of the person
acting.
9.3 Action by the Primary Sponsor or a Plan Sponsor. Any action to be
-----------------------------------------------
taken by the Primary Sponsor or a Plan Sponsor shall be taken by resolution or
written direction duly adopted by its board of directors or appropriate
governing body, as the case may be; provided, however, that by such resolution
or written direction, the board of directors or appropriate governing body, as
the case may be, may delegate to any officer or other appropriate person of a
Plan Sponsor the authority to take any such actions as may be specified in such
resolution or written direction, other
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than the power to amend, modify or terminate the Plan or to determine the basis
of any payment obligations of any Plan Sponsor.
SECTION 10
CLAIM REVIEW PROCEDURE
----------------------
10.1 In the event that a Member or Beneficiary is denied a claim for
benefits under a Plan, the Plan Administrator shall provide to such claimant
written notice of the denial which shall set forth:
(a) the specific reasons for the denial;
(b) specific references to the pertinent provisions of the Plan on
which the denial is based;
(c) a description of any additional material or information necessary
for the claimant to perfect the claim and an explanation of why such
material or information is necessary; and
(d) an explanation of the Plan's claim review procedure.
10.2 After receiving written notice of the denial of a claim, a claimant
may:
(a) request a full and fair review of such denial by written
application to the Plan Administrator;
(b) review pertinent documents; and
(c) submit issues and comments in writing to the Plan Administrator.
10.3 If the claimant wishes such a review of the decision denying his or
her claim to benefits under the Plan, he or she must submit such written
applications to the Plan Administrator within sixty (60) days after receiving
written notice of the denial.
10.4 Upon receiving such written application for review, the Plan
Administrator may schedule a hearing for purposes of reviewing the claimant's
claim, which hearing shall take place not more than thirty (30) days from the
date on which the Plan Administrator received such written application for
review.
10.5 At least ten (10) days prior to the scheduled hearing, the claimant
shall receive written notice of the date, time, and place of such scheduled
hearing. The claimant may request that the hearing be rescheduled, for his or
her convenience, on another reasonable date or at another reasonable time or
place.
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10.6 No later than sixty (60) days following the receipt of the written
application for review, the Plan Administrator shall submit its decision on the
review in writing to the claimant involved; provided, however, a decision on the
written application for review may be extended, in the event special
circumstances such as the need to hold a hearing require an extension of time,
to a day no later than one hundred twenty (120) days after the date of receipt
of the written application for review. The decision shall include specific
reasons for the decision and specific references to the pertinent provisions of
the Plan on which the decision is based.
SECTION 11
LIMITATION OF ASSIGNMENT, PAYMENTS TO LEGALLY
INCOMPETENT DISTRIBUTEE AND UNCLAIMED PAYMENTS
----------------------------------------------
11.1 No benefit which shall be payable under the Plan to any person shall
be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance or charge, and any attempt to anticipate,
alienate, sell, transfer, assign, pledge, encumber or charge the same shall be
void; and no such benefit shall in any manner be liable for, or subject to, the
debts, contracts, liabilities, engagements or torts of any person, nor shall it
be subject to attachment or legal process for, or against, such person, and the
same shall not be recognized under the Plan, except to such extent as may be
required by law.
11.2 If any person who shall be entitled to any benefit under the Plan
shall become bankrupt or shall attempt to anticipate, alienate, sell, transfer,
assign, pledge, encumber or charge such benefit under the Plan, then the payment
of any such benefit in the event a Member or Beneficiary is entitled to payment
shall, in the discretion of the Plan Administrator, cease and terminate and in
that event the Plan Administrator shall apply the same for the benefit of such
person, his or her spouse, children, other dependents or any of them in such
manner and in such proportion as the Plan Administrator shall determine.
11.3 Whenever any benefit which shall be payable under the Plan is to be
paid to or for the benefit of any person who is then a minor or determined to be
incompetent by qualified medical advice, the Plan Administrator need not require
the appointment of a guardian or custodian, but shall be authorized to cause the
same to be paid over to the person having custody of such minor or incompetent,
or to cause the same to be paid to such minor or incompetent without the
intervention of a guardian or custodian, or to cause the same to be paid to a
legal guardian or custodian of such minor or incompetent if one has been
appointed or to cause the same to be used for the benefit of such minor or
incompetent.
11.4 Whenever the Plan Administrator cannot, within a reasonable time after
payments are to commence, locate any person to or for the benefit of whom such
payments are to be made, after making a reasonable effort to locate such person,
the Plan Administrator may direct that the payment and any remaining payments
otherwise due to the Member be cancelled on the records of the Plan, except that
in the event the Member later notifies the Plan Administrator of his or her
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whereabouts and requests the payments due to him or her under the Plan, the Plan
Sponsor shall re-credit the Member's account and provide for payment of the re-
credited amount to the Member as soon as administratively feasible.
SECTION 12
LIMITATION OF RIGHTS
--------------------
Membership in the Plan shall not give any Employee any right or claim
except to the extent that such right is specifically fixed under the terms of
the Plan. The adoption of the Plan by any Plan Sponsor shall not be construed to
give any Employee a right to be continued in the employ of a Plan Sponsor or as
interfering with the right of a Plan Sponsor to terminate the employment of any
Employee at any time.
SECTION 13
AMENDMENT TO OR TERMINATION OF THE PLAN
---------------------------------------
13.1 The Primary Sponsor reserves the right at any time to modify or amend
or terminate the Plan. No such modifications or amendments shall have the effect
of retroactively changing or depriving Members or Beneficiaries of benefits
already accrued under the Plan. No Plan Sponsor other than the Primary Sponsor
shall have the right to so modify, amend or terminate the Plan. Notwithstanding
the foregoing, each Plan Sponsor may terminate its own participation in the
Plan.
13.2 Each Plan Sponsor other than the Primary Sponsor shall have the right
to terminate its participation in the Plan by resolution of its board of
directors or other appropriate governing body and notice in writing to the
Primary Sponsor. Any termination by a Plan Sponsor shall not be a termination as
to any other Plan Sponsor.
13.3 If the Plan is terminated by the Primary Sponsor, it shall terminate
as to all Plan Sponsors.
SECTION 14
ADOPTION OF PLAN BY AFFILIATES
------------------------------
Any corporation or other business entity related to the Primary Sponsor by
function or operation and any Affiliate, if the corporation, business entity or
Affiliate is authorized to do so by written direction adopted by the Board of
Directors, may adopt the Plan by action of the board of directors or other
appropriate governing body of such corporation, business entity or Affiliate.
Any adoption shall be evidenced by certified copies of the resolutions of the
foregoing board of directors or governing body indicating the adoption by the
adopting corporation, or business entity or Affiliate.
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SECTION 15
MISCELLANEOUS
-------------
15.1 All payments provided under the Plan shall be paid from the general
assets of the applicable Plan Sponsor and no separate fund shall be established
to secure payment. Notwithstanding the foregoing, the Primary Sponsor may
establish a grantor trust to assist it and other Plan Sponsors in funding Plan
obligations, and any payments made to a Member or Beneficiary from such trust
shall relieve the Plan Sponsor from any further obligations under the Plan only
to the extent of such payment. Nothing herein shall constitute the creation of
a trust or other fiduciary relationship between a Plan Sponsor and any other
person.
15.2 Each Plan Sponsor shall withhold from any benefits payable under the
Plan all federal, state and local income taxes or other taxes required to be
withheld pursuant to applicable law.
15.3 To the extent not preempted by applicable federal law, the Plan shall
be governed by and construed in accordance with the laws of the State of
Georgia.
IN WITNESS WHEREOF, the Primary Sponsor has caused this indenture to be
executed as of the date first above written.
XXXXX INDUSTRIES, INC.
By:
-----------------------
Title:
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ATTEST:
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Title:
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[CORPORATE SEAL]
-14-
