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XXXXXX, XxXXXXXXX & FISH
VOLUME SUBMITTER DISCRETIONARY CONTRIBUTION PLAN
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XXXXXX, XXXXXXXXX & FISH
VOLUME SUBMITTER DISCRETIONARY CONTRIBUTION PLAN
TABLE OF CONTENTS
Page
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ARTICLE I PREAMBLE 1
ARTICLE II DEFINITIONS 2
2.1 Account
2.2 Administrator 2
2.3 Adoption Agreement 2
2.4 Affiliated Company 2
2.5 Annuity Starting Date 3
2.6 Break in Service 3
2.7 Code 3
2.8 Company 3
2.9 Company Contribution 4
2.10 Company Contribution Account 4
2.11 Compensation 4
2.12 Credited Service 6
2.13 Earned Income 6
2.14 Effective Date 6
2.15 Elective Contribution 6
2.16 Elective Contribution Account 7
2.17 Eligible Employee 7
2.18 Employee 7
2.19 Employee Contribution 7
2.20 Employee Contribution Account 7
2.21 Entry Date 8
2.22 ERISA 8
2.23 Highly Compensated Employee 8
2.24 Hour of Service 9
2.25 Matching Contribution 13
2.26 Matching Contribution Account 14
2.27 Normal Retirement Age 14
2.28 Participant 14
2.29 Plan 14
2.30 Plan Year 14
2.31 Prior Plan 14
2.32 Rollover Account 14
2.33 Self-Employed Individual 15
2.34 Sponsor 15
2.35 Trust 15
2.36 Trustee 15
2.37 Valuation Date 15
2.38 Year of Service 15
ARTICLE III PARTICIPATION 17
3.1 Participation 17
3.2 Termination of Participation 17
3.3 Rejoining After Termination 17
of Participation 17
3.4 Prior Plan Provisions to Apply
(i)
3
to Certain Persons 17
ARTICLE IV CONTRIBUTIONS 19
4.1 Company Contributions 19
4.2 Employee Contributions 19
4.3 Elective Contributions 19
4.4 Matching Contributions 20
4.5 Time of Contributions 20
4.6 Limitations on Annual Additions
under Section 415 of the Code 21
4.7 Nondiscrimination Provisions Under
Section 401(k)(3) of the Code 22
4.8 Nondiscrimination Provisions Under
Section 401(m)(2) of the Code 26
4.9 Limitation of Section 402(g) of
the Code 30
4.10 Limit on Contributions of the
Company 31
4.11 Limited Return of Contributions 31
4.12 Rollovers 31
ARTICLE V ALLOCATIONS TO PARTICIPANTS' ACCOUNTS 33
5.1 Individual Accounts 33
5.2 Allocation of Contributions 33
5.3 Allocation of Forfeitures 34
5.4 Adjustments to Accounts 34
5.5 Investment of Accounts 34
5.6 Appointment of Investment Manager 35
ARTICLE VI RETIREMENT 36
6.1 Retirement 36
6.2 Disability Retirement 36
ARTICLE VII BENEFITS 37
7.1 Benefits on Retirement 37
7.2 Benefits on Death 37
7.3 Termination of Employment 38
7.4 Changes in Vesting
Schedule 38
7.5 Manner of Payment of Benefits 39
7.6 Time of Payment of Benefits 39
7.7 Annuity Distributions 40
7.8 Spousal Consent 45
7.9 Separate Account 46
7.10 Installment Payment Fund 47
7.11 Cash-Outs of Certain Benefits 47
7.12 Repayment of Distribution 48
(ii)
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7.13 Direct Rollover 49
7.14 Immediate Distributions 50
7.15 Required Distributions 51
7.16 Latest Commencement Date
of Benefits 54
7.17 Nonalienation of Benefits 55
7.18 Distributions Required by a
Qualified Domestic Relations
Order 55
7.19 Certain Distribution Options
Protected 56
7.20 Incapacity of Payee 56
7.21 No Vested Rights 57
ARTICLE VIII WITHDRAWALS AND LOANS 58
8.1 Hardship Withdrawals 58
8.2 Withdrawals After Age 59 1/2 60
8.3 Other Withdrawals 61
8.4 Loans To Participants 61
ARTICLE IX TOP-HEAVY PROVISIONS 67
9.1 Top-Heavy Minimum Contributions 67
9.2 Top-Heavy Vesting 67
9.3 Adjustment to Limitation
on Benefits 68
9.4 Definitions 68
ARTICLE X TRUSTEE 72
10.1 Appointment 72
10.2 Removal and Replacement 72
10.3 Changes in Trust Arrangements 72
ARTICLE XI ADMINISTRATION OF PLAN 73
11.1 Appointment of Administrator 73
11.2 Powers and Duties 74
11.3 Effect of Interpretation or
Determination 76
11.4 Nondiscriminatory Exercise of
Authority 76
11.5 Named Fiduciary 76
11.6 Expenses and Indemnification 77
11.7 Examination of Records 77
11.8 Claims and Review Procedures 77
ARTICLE XII AMENDMENT AND TERMINATION 80
12.1 Amendment 80
12.2 Termination 81
12.3 Notices with Respect to
(iii)
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Termination 82
ARTICLE XIII MISCELLANEOUS PROVISIONS 83
13.1 Participant and Employee Rights 83
13.2 Exclusive Benefit 83
13.3 Release by Participants 84
13.4 Failure of Initial Qualification 84
13.5 Merger 84
13.6 Governing Law 85
(iv)
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ARTICLE I
The Plan and Trust are intended to qualify as a discretionary contribution
plan and trust under sections 401(a) and 501(a) of the Code. If provided under
Article IV of the Adoption Agreement, the cash or deferred arrangement under the
Plan is intended to qualify under section 401(k) of the Code.
ARTICLE II
DEFINITIONS
Wherever used in the Plan, the following terms have the following meanings:
2.1 "Account" or "Accounts" means the account or accounts established for
the benefit of a Participant under Section 5.1.
2.2 "Administrator" means the person or persons appointed pursuant to
Article XI to administer the Plan.
2.3 "Adoption Agreement" means the agreement in accordance with which the
Company adopts the Plan. The Adoption Agreement constitutes part of the Plan.
2.4 "Affiliated Company" means (a) any corporation which is a member of a
controlled group of corporations (as defined in section 414(b) of the Code) with
the Company; (b) any trade or business, whether or not incorporated, which is
under common control (as defined in section 414(c) of the Code) with the
Company; (c) any trade or business which is a member of an affiliated service
group (as defined in section 414(m) of the Code) of which the Company is also a
member; or (d) any organization required to be aggregated with the Company
pursuant to regulations issued under section 414(o) of the Code; PROVIDED, that
the term "Affiliated Company" shall not include any corporation, unincorporated
trade or business or other organization prior to the date on which such
corporation, trade or business or organization satisfies the affiliation or
control test of (a), (b), (c) or (d) above. In identifying an "Affiliated
Company" for purposes of Section 4.6, the definitions in sections 414(b) and (c)
of the Code will be modified as provided in section 415(h) of the Code.
2.5 "Annuity Starting Date" means the first day as of which benefits are
payable as an annuity or, if benefits are not payable as an annuity, the first
day on which all events have occurred which entitle the Participant to such
benefit.
2.6 "Break in Service" means one or more consecutive One Year Breaks in
Service. The term "One Year Break in Service" means, with respect to any
Employee, a Plan Year during which the Employee does not complete more than 500
Hours of Service.
2.7 "Code" means the Internal Revenue Code of 1986, as amended from time to
time.
2.8 "Company" means the Sponsor and any Affiliated Company which adopts the
Plan with the consent of the Sponsor.
2.9 "Company Contribution" means the amount contributed by the Company for
each Plan Year in accordance with the provisions of Section 4.1.
2.10 "Company Contribution Account" means the account maintained for a
Participant to which his or her share of Company Contributions is allocated,
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together with income, expenses, gains or losses attributable to such
Contributions.
2.11 "Compensation" means, with respect to any Participant for a Plan Year,
(a) For purposes of Sections 4.6 and 9.1, the Participant's wages,
salaries, 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 Company to the extent that the amounts are includable in gross
income, including but not limited to commissions paid to salesmen,
compensation for services on the basis of a percentage of profits,
commissions on insurance premiums, tips, bonuses, fringe benefits,
reimbursements and expense allowances, but not including any items
excludable from the definition of compensation under Treasury
Regulations, sections 1.415-2(d)(2) and (3).
(b) For purposes of Sections 2.23 and 9.4(a), the amounts specified in
paragraph (a) above, but including any amount which is not includable
in the gross income of an Employee by reason of sections 125,
402(a)(8) (prior to January 1, 1993), 402(e)(3) (on or after January
1, 1993), 402(h)(1)(B) or 403(b) of the Code.
(c) For all other purposes under the Plan, the amounts specified by the
Sponsor in the Adoption Agreement.
(d) For a Self-Employed Individual, (i) for purpose of Sections 4.6 and
9.1, his or her Earned Income, and (ii) for all other proposes under
the Plan, his or her Earned Income, but including the amounts
specified in subsection (b).
Compensation shall include only compensation actually paid to a Participant
during the Plan year. Consistent with section 401(a)(17) of the Code, the
Compensation of each Participant for any Plan Year shall be limited to $200,000
and, for Plan Years beginning on or after January 1, 1994, to $150,000, as
adjusted in each case from time to time by the Secretary of the Treasury or his
delegate. In computing such limitation, the rules of Code section 414(q)(6)
shall apply, except that 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 end of the Plan Year.
2.12 "Credited Service" means, with respect to any Employee, the number of
Plan Years during which the Employee has completed at least 1,000 Hours of
Service; PROVIDED that, as specified in the Adoption Agreement with respect to
Breaks in Service, certain Plan Years shall not be included as Credited Service.
2.13 "Earned Income" means 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 Company to a plan to the extent deductible under section
404 of the Code. For tax years commencing after December 31, 1989, Earned Income
is computed without regard to the deduction allowed the Company under Code
section 164(f).
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2.14 "Effective Date" means the date selected by the Sponsor in the
Adoption Agreement.
2.15 "Elective Contribution" means a contribution made for the benefit of a
Participant pursuant to Section 4.3.
2.16 "Elective Contribution Account" means the account maintained for a
Participant to which Elective Contributions made for the benefit of the
Participant are allocated, together with income, expenses, gains or losses
attributable to such Contributions.
2.17 "Eligible Employee" means an Employee eligible to participate in the
Plan as specified in the Adoption Agreement.
2.18 "Employee" means any person between whom and the Company or an
Affiliated Company there exists the common law relationship of employee and
employer. Such term shall include a Self-Employed Individual. Any person who is
a "leased employee," within the meaning of section 414(n) of the Code, and any
person required to be considered an employee pursuant to regulations under
section 414(o) of the Code, shall be considered an Employee to the extent
required under such section; PROVIDED, that no such person shall be eligible to
become a Participant until he or she is actually employed by the Company.
2.19 "Employee Contribution" means a contribution made by a Participant
pursuant to Section 4.2.
2.20 "Employee Contribution Account" means the account maintained for a
Participant to which Employee Contributions made by the Participant are
allocated, together with income, expenses, gains or losses attributable to such
Contributions.
2.21 "Entry Date" means the dates specified in the Adoption Agreement.
2.22 "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
2.23 "Highly Compensated Employee" means an Employee who, during the Plan
Year or the preceding Plan Year,
(a) was at any time a 5-percent owner, as defined in section 416(i)(1) of
the Code, of the Company,
(b) received Compensation in excess of $75,000,
(c) received Compensation in excess of $50,000 and was in the top-paid
group of employees, as defined in section 414(q)(4) of the Code, based
upon the exclusion of all employees excludable under section
414(q)(8), for the Year, or
(d) was at any time an officer of the Company and received Compensation
greater than 50 percent of the amount in effect under section
415(b)(1)(A) of the Code for such Year.
The $75,000 and $50,000 amounts in (b) and (c) above shall automatically be
adjusted if and to the extent the corresponding amounts in section 414(q) of the
Code are adjusted by the Secretary of the Treasury. No more than 50 Employees
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(or, if less, the greater of three Employees or 10 percent of all Employees)
shall be treated as officers for purposes of clause (d) above. An individual who
was not described in (a), (b), (c), or (d) above during the preceding Plan Year
shall be a Highly Compensated Employee during the current Plan Year only if he
or she is described in (a) above or is among the 100 Employees with the greatest
Compensation for the current Plan Year.
If an Employee is described in (a) above or is among the ten Employees with
the greatest Compensation during the Plan Year or the preceding Plan Year, the
Employee and any family members, as defined in section 414(q)(6) of the Code,
who are also Employees shall be treated as a single Employee.
2.24 "Hour of Service" means for any Employee:
(a) Each hour for which the Employee is directly or indirectly paid, or
entitled to payment, for the performance of duties for the Company or
an Affiliated Company, each such hour to be credited to the Employee
for the computation period in which such duties are performed;
(b) Each hour for which the Employee is directly or indirectly paid, or
entitled to payment, by the Company or an Affiliated Company on
account of any of the following periods during which no duties are
performed; PROVIDED, HOWEVER, that no more than 501 Hours of Service
shall be credited under this subparagraph (b) to any Employee on
account of any single continuous period during which he or she
performs no duties; and FURTHER PROVIDED, that Hours of Service shall
not be credited under this paragraph (b) for a payment which solely
reimburses the Employee for medically related expenses incurred by the
Employee, or which is made or due under a plan maintained solely for
the purpose of complying with applicable worker's compensation,
unemployment compensation or disability insurance laws:
(i) Periods of time during which the Employee has been excused from
work by the Company or an Affiliated Company by reason of
vacation, holiday, illness, incapacity (including disability),
layoff, jury duty or military duty; PROVIDED, that in the event
that the Employee fails to return to work upon the expiration of
the period for which he or she has been so excused, his or her
employment shall be deemed to terminate;
(ii) Periods of approved leave authorized by the Company or an
Affiliated Company; PROVIDED, that in the event the Employee
fails to return to the active employ of the Company or the
Affiliated Company upon the expiration of the period of such
leave his or her employment shall be deemed to terminate;
(c) To the extent not already credited under paragraph (a) or (b) of this
Section, each hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by the Company or an
Affiliated Company, each such hour being credited to the computation
period to which such award or agreement pertains; PROVIDED, that
crediting of Hours of Service under this paragraph (c) with respect to
periods described in paragraph (b) shall be subject to the limitations
set forth in such paragraph (b);
(d) To the extent not already described under subparagraph (a), (b), or
(c) of this Section,
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(i) Each noncompensated hour while an Employee is in the armed forces
of the United States; PROVIDED, that the Employee returns to the
employ of the Company or an Affiliated Company at a time when he
or she has reemployment rights under federal law;
(ii) Each noncompensated hour as determined by the Company to be
credited for periods covered by leaves of absence authorized by
it or an Affiliated Company;
(e) Solely for purposes of determining whether a Break in Service has
occurred, the number of hours which would otherwise have been credited
to an Employee during a period of absence from work for maternity or
paternity reasons (or, if the number of such hours cannot be
determined, eight Hours of Service for each day of such absence);
PROVIDED, HOWEVER, that no more than 501 Hours of Service shall be
credited with respect to any such maternity or paternity absence.
For purposes of this paragraph (e), an absence from work for maternity
or paternity reasons means an absence (i) by reason of the pregnancy
of the Employee, (ii) by reason of the birth of a child of the
Employee, (iii) by reason of the placement of a child with the
Employee in connection with the adoption of such child by such
Employee, or (iv) for purposes of caring for such child for a period
beginning immediately following such birth or placement. An Employee
shall furnish such information as the Administrator shall reasonably
request to establish that he or she is absent from work for maternity
or paternity reasons.
Hours of Service credited in accordance with this paragraph (e) shall
be credited for the computation period in which the absence begins, if
necessary to prevent the Employee from incurring a Break in Service in
such period, or if not, in the computation period following the period
in which the absence begins if necessary to prevent a Break in Service
in that period.
The provisions relating to the special rules for the determination of Hours
of Service for reasons other than the performance of duties and to the crediting
of Hours of Service to computation periods in sections 2530.200b-2(b) and (c),
respectively, of the Department of Labor Regulations are incorporated by
reference herein.
2.25 "Matching Contribution" means the amount contributed by the Company
for a Plan Year pursuant to Section 4.4.
2.26 "Matching Contribution Account" means the account maintained for a
Participant to which Matching Contributions made for the benefit of the
Participant are allocated, together with income, expenses, gains or losses
attributable to such Contributions.
2.27 "Normal Retirement Age" means the age specified by the Sponsor in the
Adoption Agreement.
2.28 "Participant" means an Employee of the Company who has become a
participant in the Plan in accordance with Article III.
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2.29 "Plan" means the plan as contained herein and as named in the Adoption
Agreement.
2.30 "Plan Year" or "Limitation Year" means the 12-month period specified
by the Sponsor in the Adoption Agreement.
2.31 "Prior Plan" means, if the Plan is an amendment and restatement of a
qualified plan of the Company, such plan as in effect from time to time prior to
the Effective Date.
2.32 "Rollover Account" means the account maintained for a Participant to
which a rollover contribution made pursuant to Section 4.12 is credited,
together with income, expenses, gains and losses attributable to such
contribution.
2.33 "Self-Employed Individual" means an individual who has Earned Income
for the taxable year from the trade or business with respect to which the Plan
is established, or who would have had Earned Income but for the fact that the
trade or business had no net profits for such year.
2.34 "Sponsor" means the organization named as such in the Adoption
Agreement.
2.35 "Trust" means the trust established as part of the Plan.
2.36 "Trustee" means, collectively, the trustee or trustees acting under
the Trust.
2.37 "Valuation Date" means the last day of each Plan Year and such other
days as may be specified by the Administrator.
2.38 "Year of Service" means, with respect to any Employee, a period of 12
consecutive months during which the Employee has completed at least 1,000 Hours
of Service. Computation of any such 12 month period shall be made with reference
to the date on which the Employee's employment or reemployment commenced.
Singular pronouns shall include the plural, unless the context indicates
otherwise.
ARTICLE III
PARTICIPATION
3.1 PARTICIPATION. Each Eligible Employee of the Company shall become a
Participant in the Plan as of the Entry Date coinciding with or next following
the day on which he or she meets the eligibility requirements specified in the
Adoption Agreement. If the Plan is a restatement, each individual who was a
participant in the Prior Plan immediately prior to the Effective Date shall
become a Participant in the Plan as of the Effective Date; PROVIDED, that he or
she is an Eligible Employee of the Company on such Date.
3.2 TERMINATION OF PARTICIPATION. A Participant's participation in the Plan
shall terminate on the first to occur of (a) his or her retirement, death or
termination of employment as an Eligible Employee, and (b) the termination of
the Plan.
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3.3 REJOINING AFTER TERMINATION OF PARTICIPATION. Each Participant whose
participation in the Plan terminates shall again become a Participant as of the
first day of his or her reemployment as an Eligible Employee of the Company.
3.4. PRIOR PLAN PROVISIONS TO APPLY TO CERTAIN PERSONS. The provisions of
the Plan shall apply only to individuals who are Employees of the Company or an
Affiliated Company on or after the Effective Date. The rights and benefits, if
any, of each other Employee shall be determined in accordance with the
provisions of the Prior Plan in effect on the date such Employee terminated his
or her employment with the Company or an Affiliated Company.
ARTICLE IV
CONTRIBUTIONS
4.1 COMPANY CONTRIBUTIONS. The Company shall contribute for each Plan Year
the amount, if any, determined by the Sponsor in its sole discretion.
4.2 EMPLOYEE CONTRIBUTIONS. If provided in the Adoption Agreement, a
Participant may elect to make after-tax Employee Contributions to the Plan. Such
Contributions shall be in an amount equal to any whole percentage of the
Participant's Compensation, within the limits specified in the Adoption
Agreement. Employee Contributions may be made by means of payroll deduction, or
by direct payments to the Company. A Participant may cease making Employee
Contributions at any time, but may elect to increase or decrease the amount of
such Contributions only at such times as the Administrator may determine. Any
election pursuant to this Section 4.2 shall be made in such form and manner as
the Administrator may prescribe.
4.3 ELECTIVE CONTRIBUTIONS. If provided in the Adoption Agreement, a
Participant may elect, by entering into a salary reduction agreement with the
Company, to have the Company contribute to the Plan on his or her behalf any
whole percentage, within the limits specified in the Adoption Agreement, of his
or her Compensation payable thereafter. A Participant may from time to time (a)
change such percentage with respect to Compensation not yet payable by entering
into a new salary reduction agreement, or (b) cease making Elective
Contributions by revoking any salary reduction agreement then in effect. Any
salary reduction agreement and the revocation of any such agreement shall be
made in such form and manner, and subject to such prior notice, as the
Administrator may prescribe and shall be effective as of the date subsequent to
its execution specified in the Adoption Agreement. A salary reduction agreement
shall remain in effect until changed or revoked by the Participant.
4.4 MATCHING CONTRIBUTIONS. If provided in the Adoption Agreement, in the
event that a Participant elects to make Employee or Elective Contributions, the
Company shall contribute for the benefit of the Participant the amount specified
in the Adoption Agreement.
4.5 TIME OF CONTRIBUTIONS. Company Contributions and Matching Contributions
for each Plan Year shall be paid over to the Trustee not later than the time
prescribed by law for filing the Company's federal income tax return, including
extensions, with respect to the fiscal year ending with, or within which ends,
such Plan Year. Employee Contributions and Elective Contributions shall be paid
over to the Trustee as soon as such contributions can reasonably be segregated
from the general assets of the Company, but in no event later than 90 days after
such amounts are received by the Company or would otherwise have been payable as
Compensation to the Participant.
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4.6. LIMITATIONS ON ANNUAL ADDITIONS UNDER SECTION 415 OF THE CODE.
Notwithstanding any other provision of the Plan, the annual additions, within
the meaning of Code section 415(c)(2), made to a Participant's Accounts for any
Limitation Year, when added to the annual additions to his or her accounts for
such Year under all other defined contribution plans maintained by the Company
and the Affiliated Companies, shall not exceed the lesser of (a) $30,000 (or, if
greater, one-fourth of the limitation in effect under section 415(b)(1)(A) of
the Code), or (b) 25 percent of the Participant's Compensation for the
Limitation Year. In the case of a Participant who also participates in a defined
benefit plan maintained by the Company or an Affiliated Company, the annual
addition for a Limitation Year will, if necessary, be further limited so that
the sum of the Participant's "defined contribution fraction," as determined
under section 415(e) of the Code and Treasury Regulations thereunder, and his or
her "defined benefit plan fraction," as so determined, for such Limitation Year
does not exceed 1.0. The annual addition which would otherwise be made on behalf
of a Participant under the Plan shall be reduced in the order, with respect to
any other qualified plans maintained by the Company or an Affiliated Company,
specified in the Adoption Agreement.
In the event that the amounts otherwise allocable to the Accounts of any
Participant for any Plan Year would be in excess of the limitations provided in
this Section 4.6, such excess shall be disposed of in the following order:
(a) Any Employee Contributions made for the Limitation Year, to the extent
that their return would reduce such excess, shall be returned to the
Participant;
(b) Such excess amounts shall be used to reduce contributions by the
Company for the following Limitation Year for the Participant, if he
or she is covered by the Plan at the end of such Year; and
(c) Such excess amounts shall otherwise be held in a suspense account and
used to reduce contributions by the Company for the following
Limitation Year and each succeeding Limitation Year, if necessary;
PROVIDED, that no such suspense account shall participate in the
allocation of the income, gains or losses under the Plan.
4.7 NONDISCRIMINATION PROVISIONS UNDER SECTION 401(k)(3) OF THE CODE.
Elective Contributions under the Plan shall at all times meet the applicable
requirements of section 401(k)(3) of the Code. This Section 4.7 shall be
interpreted and applied in accordance with such Code section and Treasury
Regulations thereunder, including section 1.401(k)-1, which are incorporated
herein by reference.
(a) ACTUAL DEFERRAL PERCENTAGES. For each Plan Year, the Administrator
shall determine for each Employee eligible to make Elective
Contributions the ratio of his or her Elective Contributions for the
Plan Year to his or her Compensation for such Year. To the extent
permitted under Treasury Regulations, the Administrator may take into
account only that portion of the Plan Year during which the Employee
was a Participant. The actual deferral ratios for all Highly
Compensated Employees eligible to make Elective Contributions, and the
actual deferral ratios for all non-Highly Compensated Employees
eligible to make such Contributions, shall be averaged to determine
the actual deferral percentages for each group of Employees for the
Plan Year. The actual deferral percentage for the group of Highly
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Compensated Employees for any Plan Year shall not exceed the greater
of:
(i) 125 percent of the actual deferral percentage for the group of
non-Highly Compensated Employees, and
(ii) Twice, but not more than two percentage points in excess of, the
actual deferral percentage for the group of non-Highly
Compensated Employees.
(b) QUALIFIED NONELECTIVE CONTRIBUTIONS. As determined by the Sponsor in
its sole discretion, qualified nonelective contributions, within the
meaning of Treasury Regulations, section 1.401(k)-1(g)(13), may be
made to the Trust for a Plan Year. Qualified nonelective contributions
for a Plan Year shall be allocated, as the Sponsor shall determine,
among the Elective Contribution Accounts of either (i) all
Participants who are eligible to make Elective Contributions for the
Plan Year, or (ii) all such Participants who are not Highly
Compensated Employees. Except as otherwise expressly provided, any
qualified nonelective contribution shall be treated as an Elective
Contribution for all purposes under the Plan.
(c) CORRECTION OF EXCESS CONTRIBUTIONS. If the Elective Contributions made
on behalf of Participants would cause the Plan to exceed the limits
under section 401(k)(3) of the Code, the Administrator may limit the
amount of Elective Contributions to be made with respect to any Highly
Compensated Employee. If such limits have not been met for any Plan
Year after all contributions for such Year have been made, then any
excess contributions and any allocable income, gain or loss shall be
distributed to the affected Participants no later than 12 months after
the close of the Plan Year in which the excess contribution was made.
If a distribution becomes necessary, it will be first applied to
the Participant who is the Highly Compensated Employee having the
highest actual deferral percentage, until the limits of section
401(k)(3) are met or until such Participant's actual deferral
percentage is reduced to the same percentage level as that of the
Participant who is the Highly Compensated Employee having the next
highest actual deferral percentage. If further limitations are
required, the process shall be repeated until the limits of section
401(k)(3) are met. The amount of excess contributions for any Highly
Compensated Employee shall be determined as the amount of his or her
Elective Contributions for the Plan Year, less the product of (i) his
or her reduced actual deferral ratio and (ii) his or her Compensation.
A distribution under this Section shall be designated by the
Administrator as a distribution of excess contributions. Any excess
contributions to be distributed shall be reduced by excess deferrals
previously distributed under Section 4.9. Excess contributions shall
be allocated to Participants who are subject to the family aggregation
rules of section 414(q)(6) of the Code in the manner prescribed by
applicable Treasury Regulations.
The Administrator shall maintain such records as are necessary to
demonstrate compliance with the requirements of section 401(k)(3) of
the Code.
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4.8 NONDISCRIMINATION PROVISIONS UNDER SECTION 401(M)(2) OF THE CODE. The
Plan shall at all times meet the applicable requirements of section 401(m)(2) of
the Code. This section 4.8 shall be interpreted and applied in accordance with
such Code section and Treasury Regulations thereunder, including sections
1.401(m)-1 and 1.401(m)-2, which are incorporated herein by reference.
(a) ACTUAL CONTRIBUTION PERCENTAGES. For each Plan Year, the Administrator
shall determine for each Employee eligible for Employee Contributions
or Matching Contributions, the ratio of the Employee and Matching
Contributions made on his or her behalf for the Plan Year to his or
her Compensation for such Year. To the extent permitted under Treasury
Regulations, the Administrator may take into account only that portion
of the Plan Year during which the Employee was a Participant. The
actual contribution ratios for all Highly Compensated Employees
eligible for Employee or Matching Contributions, and the actual
contribution ratios for all non-Highly Compensated Employees eligible
for such Contributions, shall be averaged to determine the actual
contribution percentages for each group of Employees for the Plan
Year. The actual contribution percentage for the group of Highly
Compensated Employees shall not exceed the greater of:
(i) 125 percent of the actual contribution percentage for the group
of non-Highly Compensated Employees, and
(ii) Twice, but not more than two percentage points in excess of, the
actual contribution percentage for the group of non-Highly
Compensated Employees.
(b) CORRECTION OF EXCESS AGGREGATE CONTRIBUTIONS. If the Employee or
Matching Contributions made on behalf of Participants would cause the
Plan to exceed the limits under section 401(m)(2) of the Code, the
Administrator may limit the amount of such Contributions to be made
with respect to any Highly Compensated Employee. If such limits have
not been met for a Plan Year after all contributions for the Plan Year
have been made, then any excess aggregate contributions and any
allocable income, gain or loss shall be returned to the affected
Participants no later than 12 months after the close of the Plan Year
in which the excess aggregate contribution was made.
If a distribution becomes necessary, it will be first applied to
the Participant who is the Highly Compensated Employee with the
highest actual contribution ratio, until the limits of Code section
401(m)(2) are met or until such Participant's actual contribution
ratio is reduced to the same percentage level as that of the
Participant who is the Highly Compensated Employee having the next
highest actual contribution ratio. If further limitations are
required, this process shall be repeated until the tests of section
401(m)(2) are met. The amount of excess aggregate contributions for
any Highly Compensated Employee shall be determined as the amount of
Employee and Matching Contributions made with respect to the Employee,
less the product of (i) his or her reduced actual contribution ratio
and (ii) his or her Compensation.
Distributions of excess aggregate contributions shall be made
first from unmatched Employee Contributions and only then from matched
Employee Contributions and Matching Contributions. A Participant's
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excess aggregate contributions will be designated by the Administrator
as a distribution of excess aggregate contributions. Excess aggregate
contributions shall be allocated to Participants who are subject to
the family aggregation rules of section 414(q)(6) of the Code in the
manner prescribed by applicable Treasury Regulations.
The Administrator shall maintain such records as are necessary to
demonstrate compliance with the tests of section 401(m)(2) of the
Code.
(c) MULTIPLE USE TEST. In the event that (i) the limitations of Sections
4.7 and 4.8 are both exceeded and (ii) the sum of the actual deferral
percentage and the actual contribution percentage for the group of
Highly Compensated Employees exceeds the aggregate limit under
Treasury Regulations, section 1.401(m)-2(b)(3), the Administrator
shall reduce the actual contribution ratios of Highly Compensated
Employees in accordance with the requirements of such regulations.
4.9 LIMITATION OF SECTION 402(G) OF THE CODE.
(a) GENERAL LIMITATION. Elective Contributions made on behalf of a
Participant, when added to the Participant's elective deferrals,
within the meaning of section 402(g)(3) of the Code, under all plans,
contracts or arrangements maintained by the Company or an Affiliated
Company shall not exceed the limitation of section 402(g) of the Code,
as from time to time adjusted by the Secretary of the Treasury.
(b) CORRECTION OF EXCESS DEFERRALS. If following the close of a
Participant's taxable year, the Participant notifies the Administrator
that all or a portion of his or her Elective Contributions for the
prior calendar year exceeds the limit of section 402(g) of the Code,
the Administrator may distribute such excess amount to the
Participant, together with any income, gain, or loss allocable
thereto, no later than the April 15 following the calendar year with
respect to which the excess deferral was made. No distribution of an
excess deferral shall be made during the taxable year of a Participant
in which the excess deferral was made unless the correcting
distribution is made after the date on which the Plan received the
excess deferral and both the Participant and the Plan designate the
distribution as a distribution of an excess deferral. The amount of
any excess deferral that may be distributed to a Participant will be
reduced by the amount of any Elective Contributions previously
distributed to the Participant as excess contributions under Section
4.7.
4.10 LIMIT ON CONTRIBUTIONS OF THE COMPANY. Contributions made by the
Company shall in no event be greater than the amount which is deductible under
section 404 of the Code. All contributions by the Company are hereby conditioned
on their deductibility under section 404 of the Code.
4.11 LIMITED RETURN OF CONTRIBUTIONS. Notwithstanding any other provision
of the Plan, any contribution which was made by the Company under a mistake of
fact or which was conditioned on the deductibility of such contribution under
section 404 of the Code, but the deduction of which is disallowed or treated as
disallowed, shall upon request of the Company be returned to it within one year
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following the payment of such contribution or the disallowance of such deduction
(to the extent disallowed), whichever is applicable.
4.12 ROLLOVERS. If permitted under the Adoption Agreement, an Employee may
make a contribution to the Plan of any amount which qualifies for rollover under
sections 402(c) (or, prior to January 1, 1993, 402(a)(5)), 403(a) or 408(d)(3)
of the Code. A rollover shall be permitted only if the optional forms of
benefit, within the meaning of section 411(d)(6) of the Code, with respect to
such amounts are otherwise provided for under the Plan.
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ARTICLE V
ALLOCATIONS TO PARTICIPANTS' ACCOUNTS
5.1 INDIVIDUAL ACCOUNTS. The Administrator shall establish and maintain, or
cause to be established and maintained, Accounts for the benefit of each
Participant to reflect his or her interest in the Trust. Separate Accounts shall
be established for Company, Employee, Elective and Matching Contributions and
rollovers, respectively, to the extent such contributions are provided for in
the Adoption Agreement. Such other accounts may be established as the
Administrator deems necessary or appropriate to carry out the purposes of the
Plan.
5.2 ALLOCATION OF CONTRIBUTIONS. Company Contributions and Matching
Contributions for a Plan Year shall be allocated to the Accounts of Participants
entitled to share in such Contributions, as provided in the Adoption Agreement,
as of each Valuation Date. Company Contributions shall be allocated in the
proportion that each Participant's Compensation bears to the total Compensation
of all Participants entitled to share in such Contributions. In the event the
Company makes any contributions in kind, the assets contributed shall be
allocated at their fair market value. Elective Contributions and Employee
Contributions shall be allocated to the Accounts of Participants as of the last
day of the pay period, as specified in the Adoption Agreement, to which such
Contributions relate.
5.3 ALLOCATION OF FORFEITURES. Amounts forfeited under Section 7.9 shall be
applied and allocated to Participants as provided in the Adoption Agreement.
5.4 ADJUSTMENTS TO ACCOUNTS. As of each Valuation Date, the fair market
value of the assets attributable to amounts held in each Participant Account
shall be determined and the balance of each such Account adjusted to reflect
gain, loss, income and expenses attributable to such assets. The balances of
such Accounts shall be adjusted to reflect any contributions, distributions and
transfers made since the preceding Valuation Date.
5.5 INVESTMENT OF ACCOUNTS. Except as otherwise provided in the Adoption
Agreement, all amounts held in the Trust shall be invested by the Trustee in its
sole discretion.
To the extent provided in the Adoption Agreement, each Participant shall
direct the investment of his or her Accounts among the investment options
available under the Plan. Investment directions shall be made, or changed, in
such form and manner, and with such frequency, as the Administrator may
prescribe, and shall become effective as of such dates as the Administrator
shall determine, consistent with the requirements of the investment vehicles.
Amounts may be transferred among investment options under the Plan in such form
and manner, and with such frequency, as the Administrator may prescribe.
If an investment manager has been appointed in accordance with Section 5.6,
the investment manager shall invest in its sole discretion such portion of the
Trust as the Sponsor shall determine.
5.6 APPOINTMENT OF INVESTMENT MANAGER. The Sponsor may appoint one or more
investment managers to manage the investment of all or any portion, as
determined by the Sponsor, of the Trust assets. The investment manager shall
acknowledge in writing that it is a fiduciary with respect to the Plan. An
investment manager must be (a) registered as an investment adviser under the
Investment Advisers Act of 1940, (b) a bank as defined in that Act, or (c) an
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insurance company qualified under the laws of more than one state to manage,
acquire or dispose of any assets of the Plan.
ARTICLE VI
RETIREMENT
6.1 RETIREMENT. An Employee may retire as of the first day of any month on
or after the attainment of Normal Retirement Age. In the event of a
Participant's retirement, he or she shall be entitled to a benefit in accordance
with Section 7.1. A Participant shall have a nonforfeitable interest in amounts
held in his or her Accounts as of the date on which he or she attains Normal
Retirement Age.
6.2 DISABILITY RETIREMENT. If provided in the Adoption Agreement, if
because of a medically determinable physical or mental impairment likely to
result in death or to be of a continuous duration of not less than 12 months, a
Participant cannot engage in any substantial gainful employment and terminates
employment with the Company and the Affiliated Companies, he or she will be
entitled to a benefit in accordance with Section 7.1. In the event of such a
disability, the Participant shall have a nonforfeitable interest in amounts held
in his or her Accounts. Whether or not a Participant is disabled will be
determined by the Administrator on the basis of medical evidence satisfactory to
the Administrator.
ARTICLE VII
BENEFITS
7.1 BENEFITS ON RETIREMENT. Each Participant who retires in accordance with
Section 6.1 or 6.2 shall be entitled to a benefit, payable as provided in
Section 7.5, equal to the balance of his or her Accounts, determined as of the
Valuation Date coinciding with or immediately preceding the date distribution is
to be made or commence.
7.2 BENEFITS ON DEATH. In the event of the death of a Participant, his or
her beneficiary will have a nonforfeitable interest in, and will be entitled to
receive a benefit equal to, the balance of his or her Accounts, determined as of
the Valuation Date coinciding with or immediately preceding the date
distribution is to be made or commence.
A Participant may at any time designate one or more persons to be the
beneficiary or beneficiaries to receive all benefits payable under the Plan in
the event of his or her death. A Participant may also revoke a prior beneficiary
designation. A beneficiary designation or revocation of a designation shall be
made in such form and manner as the Administrator may prescribe. No such
designation or revocation shall become effective prior to its receipt by the
Administrator. Notwithstanding the foregoing, if a Participant was married at
the time of his or her death, he or she shall be deemed to have named his or her
surviving spouse as beneficiary unless the spousal consent requirements of
Section 7.8 have been met. If a Participant has not designated any beneficiary,
or no
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designated beneficiary survives the Participant, the benefit payable upon his or
her death will be paid to his or her estate.
7.3 TERMINATION OF EMPLOYMENT. If a Participant terminates employment for
any reason other than retirement or death, the Participant shall be entitled to
a benefit equal to the full balance of his or her Employee Contribution and
Elective Contribution Accounts and his or her Rollover Account, plus a portion
of his or her Company Contribution and Matching Contribution Accounts,
determined in accordance with the schedule provided in the Adoption Agreement.
The Participant's benefit shall be computed as of the Valuation Date coinciding
with or immediately preceding the date on which distribution is to be made or
commence.
7.4 CHANGES IN VESTING SCHEDULE. If the Plan is amended at any time and
such amendment directly or indirectly affects the computation of the
nonforfeitable interest of a Participant in his or her Accounts, such amendment
shall apply to any Participant who has completed three years of Credited Service
as of the end of the period described below only to the extent that the
Participant's nonforfeitable interest in his or her Accounts is equal to or
greater than such interest determined without regard to the amendment. The
period referred to in the preceding sentence will begin on the date the
amendment of the vesting schedule is adopted and will end on the date which is
60 days after the later of (a) the date on which such amendment is adopted and
(b) the date on which such amendment becomes effective.
7.5 MANNER OF PAYMENT OF BENEFITS. Subject to such rules as the
Administrator may prescribe, a Participant may elect to receive his or her
benefits in any of the forms specified in the Adoption Agreement. An election
pursuant to this Section must be made prior to the commencement of benefits and
shall become irrevocable upon the commencement of such benefits. In the absence
of any election by the Participant, his or her benefits shall be payable in an
immediate lump sum. However, if the normal form of benefit under the Plan, as
specified in the Adoption Agreement, is an annuity, benefits shall be paid as
provided in Section 7.7.
7.6 TIME OF PAYMENT OF BENEFITS. Distribution of benefits, or the
commencement thereof, shall be made, as specified in the Adoption Agreement, as
soon as reasonably practicable after the event giving rise to the distribution;
PROVIDED, HOWEVER, that in the case of termination of employment for a reason
other than retirement or death, distribution of a Participant's benefit shall be
made or commence as of the later of the Participant's termination of employment
or his or her Normal Retirement Date. Notwithstanding the foregoing, if provided
in the Adoption Agreement, a Participant may elect, subject to such rules as the
Administrator may prescribe, to have benefits commence after his or her
termination of employment and before his or her Normal Retirement Date or to
defer the commencement of benefits, in either case as specified in the Adoption
Agreement.
7.7. ANNUITY DISTRIBUTIONS. Notwithstanding any other provision of the
Plan, if annuity distributions are provided for under the Adoption Agreement and
a Participant elects distribution of his or her benefits in the form of an
annuity, or if annuity distributions are the normal form of benefit under the
Plan, as specified in the Adoption Agreement, the Participant's benefits will be
paid as provided in this Section 7.7.
(a) ANNUITY FORM. If a Participant is not married on his or her Annuity
Starting Date, then the Participant's benefits will be payable as a
single life annuity. If a Participant is married on his or her
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Annuity Starting Date and has not made an effective election of an
optional form of benefit under this Section, then benefits will be
payable in the form of a 50 percent joint and survivor annuity, under
which a reduced benefit will be payable to the Participant during his
or her lifetime, and upon his or her death one half of such reduced
benefit will be paid to the Participant's spouse during the spouse's
lifetime, if the spouse survives the Participant. The joint and
survivor form of benefit will be the actuarial equivalent of the
single life annuity otherwise payable to the Participant.
A Participant may elect not to receive his or her benefits in the
form described above and to have such benefits paid in one of the
optional forms permitted under the Adoption Agreement. Any such
election shall be made in such form and manner as the Administrator
may prescribe and during the election period described below. No
election by a married Participant will be effective unless the
Participant's spouse consents to the election in accordance with
Section 7.8.
(i) The election period will consist of the 90 day period preceding
the Participant's Annuity Starting Date and ending on such Date.
(ii) The Administrator shall provide each Participant with a written
explanation of the form of benefit described in (a) above
applicable to the Participant. This explanation will be written
in nontechnical terms and will contain (1) the terms and
conditions of the form of benefit; (2) the Participant's right,
if any, to make, and the effect of, an election to waive such
form of benefit; (3) in the case of a married Participant, the
rights of the Participant's spouse under Section 7.8 to consent
to a waiver of the form of benefit; and (4) The right to make,
and the effect of, a revocation of an election to waive payment
in such form of benefit.
The Administrator will also furnish Participants with a
general description of the eligibility conditions and other
material features of the optional forms of benefit, including
sufficient information as to the relative value of such optional
forms of payment. The Administrator will provide the foregoing
explanation and other information within the period beginning 90
days prior to the Participant's Annuity Starting Date and ending
30 days prior to such Date.
(iii) A Participant may revoke an election under this Section without
the requirement of spousal consent by filing a written revocation
with the Administrator any time during the election period
described above. A revocation will not prevent the Participant
from making a subsequent election under this Section during the
election period described above, subject, however, to Section
7.8.
(b) PRERETIREMENT DEATH BENEFIT. If a married Participant dies before his
or her Annuity Starting Date, then 50 percent of his or her vested
Account balance will be used to provide an annuity for the life of the
Participant's surviving spouse; PROVIDED, that in place of such
annuity, the spouse may elect in writing to receive distributions
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under the Plan as if he or she had been designated by the Participant
as his or her beneficiary with respect to 50 percent of the
Participant's Accounts.
A Participant may waive the preretirement death benefit during
the period commencing on the first day of the Plan Year in which the
Participant attains age 35 and ending on the date of the Participant's
death; PROVIDED, that in the case of a Participant who terminates
employment, the election period with respect to benefits accrued prior
to the date of such termination will in no event commence later than
the date of his or her termination of employment. A Participant may
elect to waive the application of this subsection prior to the Plan
Year in which he or she attains age 35, except that any such waiver
will cease to be effective as of the first day of the Plan Year in
which the Participant attains age 35. A waiver of the preretirement
death benefit must satisfy the consent requirements of Section 7.8.
The Administrator will provide the Participant with a written
explanation of the preretirement death benefit comparable to that
required under (a)(ii) above. The explanation shall be furnished
within whichever of the following periods ends last: (i) the period
beginning with the first day of the Plan Year in which the Participant
reaches age 32 and ending with the end of the Plan Year preceding the
Plan Year in which he or she reaches age 35, (ii) a reasonable period
ending after the Employee becomes a Participant, (iii) a reasonable
period ending after this Section first becomes applicable to the
Participant, (iv) in the case of a Participant who separates from
service before age 35, a reasonable period of time ending after such
separation from service. The two year period beginning one year prior
to the date of the event described in clause (ii), (iii) or (iv),
whichever is applicable, and ending one year after such date shall be
considered reasonable; PROVIDED, that in the case of a Participant who
separates from service under (iv) above and subsequently recommences
employment with the Employer, the applicable period for such
Participant shall be redetermined in accordance with this Section.
7.8. SPOUSAL CONSENT. No election by a married Participant to waive the
joint and survivor annuity form of benefit or the preretirement death benefit
pursuant to Section 7.7 will be effective, and no distribution subject to
sections 401(a)(11) and 417 of the Code may be made or commence to a married
Participant prior to his or her Normal Retirement Date, unless:
(a) The spouse of the Participant consents in writing to such election,
and the spouse's consent acknowledges the effect of such election and
the specific form of benefit or nonspouse beneficiary, if any,
including any class of beneficiaries and any contingent beneficiaries
(or, with respect to subsequent designations, the consent of the
spouse expressly permits such designations without any requirement of
further consent by such spouse), and such consent is witnessed by a
Plan representative or a notary public; or
(b) It is established to the satisfaction of the Administrator that the
required consent may not be obtained because there is no spouse,
because the spouse cannot be located, or because of such other
circumstances as the Secretary of the Treasury may prescribe by
regulations.
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Any consent by the spouse or establishment that the consent of a spouse may
not be obtained under (a) or (b) above shall be effective only with respect to
such spouse. Any consent that permits beneficiary designations or the election
of optional forms of benefit by the Participant without any requirement of
further consent must acknowledge the spouse's right to limit consent to a
specific beneficiary or optional form of benefit and the spouse's voluntary
election to relinquish those rights. Any election and spousal consent under this
Section must be made in such form and manner as the Administrator may prescribe.
7.9 SEPARATE ACCOUNT. If a Participant receives a distribution from an
Account at a time when he or she has a nonforfeitable interest in less than 100
percent of the Account, then upon such distribution the balance remaining in the
Account shall be transferred to a separate account. On any particular date prior
to the occurrence of five consecutive One Year Breaks in Service, the
Participant shall be entitled to a nonforfeitable portion of the balance of his
or her separate account, payable as otherwise provided under the Plan, equal to
an amount determined by the following formula:
X = P(AB + (R x D)) - (R x D),
where P is the vested percentage as of such date; AB is the balance in the
separate account as of such date; D is the amount which was distributed; and R
is the ratio of the balance of the separate account on such date to the balance
of the separate account after the distribution. If the Participant or former
Participant incurs five consecutive One Year Breaks in Service, the portion of
his or her separate account which is not nonforfeitable under the foregoing
formula shall be forfeited. Except as otherwise provided in this Section 7.9,
any separate account shall be treated as though it were the Account from which
it was derived for all purposes under the Plan.
7.10 INSTALLMENT PAYMENT FUND. If a benefit is payable in installments,
assets equal in amount to the present value of all such installments shall be
segregated and held by the Trustee in an installment payment fund for the
benefit of the person or persons to whom the benefit is payable. The Trustee
shall maintain a separate account in such fund for each such person and each
installment shall be charged to such account upon payment.
7.11 CASH-OUTS OF CERTAIN BENEFITS. Notwithstanding any other provision of
the Plan, with respect to a Participant whose employment with the Company or an
Affiliated Company terminates for any reason and who is entitled to a
nonforfeitable benefit under the Plan, if the present value of such
nonforfeitable benefit does not, and did not at the time of any prior
distribution, exceed $3,500, the Participant's benefit shall be distributed in
cash or other assets of the Trust in a lump sum as soon as reasonably
practicable after the termination of his or her employment and, in any case,
within 60 days after the close of the Plan Year in which such termination
occurs.
7.12 REPAYMENT OF DISTRIBUTION. If a Participant terminates employment with
the Company and the Affiliated Companies at a time when he or she has a
nonforfeitable interest in less than 100 percent of his or her Accounts and
receives a distribution of benefits under the Plan, and he or she subsequently
returns to the employ of the Company before incurring five consecutive One Year
Breaks in Service and again becomes a Participant, such Participant may repay to
the Plan the full amount of such distribution; PROVIDED, that such repayment is
made before the earlier of (a) the close of the period in which the Participant
incurs five consecutive One Year Breaks in Service commencing with the
distribution, and (b) the fifth anniversary of the Participant's reemployment
with
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the Company. In the event of such repayment the full present value of the
Participant's benefit (nonforfeitable and forfeitable, if any) as of the date of
such distribution shall be restored to his or her Accounts.
7.13 DIRECT ROLLOVER. With respect to distributions made on or after
January 1, 1993, a Participant may elect to have all or any portion of a
distribution paid in the form of a direct rollover to an individual retirement
account or annuity described in section 408(a) or (b) of the Code, an annuity
plan described in section 403(a) of the Code, or a plan and trust qualified
under section 401(a) of the Code, if such plan accepts direct rollover
distributions. Notwithstanding the foregoing, this Section shall not apply to
any distribution that is (a) one of a series of substantially equal installments
over the life or life expectancy of the Participant or the lives or joint life
expectancies of the Participant and his or her beneficiary, or over a fixed
period of ten years or more, (b) a required minimum distribution under section
401(a)(9) of the Code, (c) a distribution (or portion of a distribution) of
amounts not otherwise includable in income, (d) a distribution in an amount less
than $200, or (e) a distribution that is otherwise not an eligible rollover
distribution, within the meaning of section 402(f)(2)(A) of the Code and
applicable Treasury Regulations thereunder. Any election pursuant to this
Section 7.13 shall be made in such form and manner as the Administrator may
prescribe and shall specify the retirement plan to which the distribution is to
be made. Any such election may be revoked by the Participant at any time prior
to the time distribution is made. If no election is made by the Participant
under this Section, the distribution shall be paid to the Participant. If any
distribution is payable to the spouse or former spouse of a Participant, this
Section shall apply as if such spouse or former spouse were the Participant,
except that any such distribution may be directly rolled over only to an
individual retirement account or annuity.
The Administrator shall provide Participants with notice with respect to
the direct rollover of eligible rollover distributions no less than 30 days and
no more than 90 days prior to the Participant's Annuity Starting Date; PROVIDED,
HOWEVER, that if the distribution is not subject to sections 401(a)(11) and 417
of the Code, the Participant may affirmatively elect, in accordance with such
procedures as the Administrator may prescribe, to have benefits commence sooner
than 30 days after such notice.
7.14 IMMEDIATE DISTRIBUTIONS. Notwithstanding any other provision of the
Plan, no distribution will be made to a Participant of amounts held in his or
her Accounts before his or her Normal Retirement Date, unless the written
consent of the Participant, and, if the distribution is subject to sections
401(a)(11) and 417 of the Code, the Participant's spouse, has been obtained.
Such consent shall be made in writing within the 90-day period ending on the
Participant's Annuity Starting Date. Within the period beginning 90 days before
the Participant's Annuity Starting Date and ending 30 days before such Date, the
Administrator will provide the Participant with written notice containing a
general description of the material features and an explanation of the relative
values of the optional forms of benefit available under the Plan and informing
the Participant of his or her right to defer receipt of the distribution until
his or her Normal Retirement Date; PROVIDED, that if the distribution is not
subject to sections 401(a)(11) and 417 of the Code, the Participant may elect to
have benefits commence less than 30 days after such notice. Notwithstanding the
foregoing, all or any portion of a Participant's Accounts may be distributed
without the consent of the Participant or the Participant's spouse to the extent
that a distribution is required to satisfy section 401(a)(9) or section 415 of
the Code.
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7.15 REQUIRED DISTRIBUTIONS. Notwithstanding any other provision of the
Plan, distribution of benefits under Article VII shall satisfy the requirements
of this Section 7.15. The benefits of a Participant will be distributed (a) to
the Participant in full not later than the required beginning date, or (b)
beginning not later than the required beginning date, to the Participant over a
period not extending beyond the life expectancy of the Participant, or to the
Participant and his or her designated beneficiary over a period not extending
beyond the life expectancies of the Participant and the designated beneficiary.
For purposes of this Section, a Participant's "required beginning date" shall be
the date determined under Section 7.16(b) with respect to the Participant, and
the term "designated beneficiary" shall have the meaning given such term under
section 401(a)(9) of the Code and Treasury Regulations thereunder.
In the event that distribution of benefits to a Participant has commenced
and the Participant dies prior to the distribution of his or her entire benefit,
but after the required beginning date, the remaining portion of the benefit will
be distributed at least as rapidly as under the method of distribution used as
of the date of the Participant's death. In the event a Participant dies before
distribution of benefits has commenced or after actual commencement but before
the required beginning date, the remaining benefit will be distributed within
five years unless the benefit is payable to a designated beneficiary, in which
case such benefit will be distributed, beginning not later than one year after
the death of the Participant (or such other time as may be prescribed by
regulations), over a period not exceeding the life expectancy of such
beneficiary; PROVIDED, that if the designated beneficiary is the Participant's
spouse, distributions will not be required to commence hereunder earlier than
the date on which the Participant would have attained age 70 1/2, and, in the
event the Participant's spouse dies prior to the commencement of distributions,
the provisions of this Section shall apply as if such spouse were the
Participant. Any distribution required under the incidental death benefit
requirements of section 401(a)(9)(G) of the Code will be treated as a
distribution required under section 401(a)(9) of the Code and this Section.
In the case of distributions to be made in installments, if provided in the
Adoption Agreement, the amount of an installment for a particular calendar year
shall be determined by dividing (i) the value of the Participant's Accounts as
of the Valuation Date immediately preceding the beginning of such year (adjusted
for any allocations of contributions and any distributions which are made after
the Valuation Date but before such year) by (ii) the greatest of (A) the number
of remaining installments under the period elected by the Participant as of the
beginning of such year, (B) the number of years in the applicable remaining life
expectancy for such year determined pursuant to proposed Treasury Regulations,
section 1.401(a)(9)-1, or (iii) (if the Participant's beneficiary is not his or
her spouse) the applicable divisor for such year determined under section
1.401(a)(9)-2 of the proposed Treasury Regulations. If provided in the Adoption
Agreement, for purposes of determining the amount of any installment
distribution, the life expectancies of the Participant and his or her spouse
will be recalculated annually pursuant to section 401(a)(9) of the Code.
The provisions of this Section will be interpreted and applied in
accordance with applicable Treasury Regulations under section 401(a)(9) of the
Code, including proposed Treasury Regulations, sections 1.401(a)(9)-1 and
1.401(a)(9)-2.
7.16 LATEST COMMENCEMENT DATE OF BENEFITS. In no case will the payment of
benefits to any Participant commence later than the earlier of:
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(a) Unless the Participant otherwise elects in writing, the 60th day after
the latest of the following:
(i) The close of the Plan Year in which the Participant attains
Normal Retirement Age;
(ii) The close of the Plan Year in which occurs the tenth anniversary
of the year in which the Participant commenced participation in
the Plan; or
(iii) The close of the Plan Year in which the Participant ceases to be
an Employee; and
(b) The April 1 next following the close of the calendar year in which the
Participant attains age 70 1/2 or, in the case of any Participant who
attains age 70 1/2 before January 1, 1988 and is not a 5-percent owner
(as defined in section 416(i)(1)(B)(i) of the Code) of the Company or
an Affiliated Company at any time during the five Plan Year period
ending in the calendar year in which the Participant attains age 70
1/2 or any subsequent Plan Year, the close of the calendar year in
which he or she retires, if later; PROVIDED, that in the case of any
Participant who attains age 70 1/2 after December 31, 1987 and before
January 1, 1989, payment of benefits shall commence not later than
April 1, 1990.
7.17 NONALIENATION OF BENEFITS. No benefit payable to any person under the
Plan shall be subject to anticipation or assignment by such person or to
attachment by or the interference or control of any creditor, or be taken or
reached by any legal or equitable process in satisfaction of any debt or
liability prior to actual receipt; PROVIDED, HOWEVER, that this provision shall
be inapplicable to the extent otherwise provided in a qualified domestic
relations order, within the meaning of section 414(p) of the Code.
7.18 DISTRIBUTIONS REQUIRED BY A QUALIFIED DOMESTIC RELATIONS ORDER. To the
extent required by a qualified domestic relations order, within the meaning of
section 414(p) of the Code, the Administrator shall make distribution of a
Participant's benefits to alternate payees named in such order in a manner
consistent with the distribution options otherwise available under the Plan,
regardless of whether the Participant is otherwise entitled to a distribution at
such time under the Plan.
7.19 CERTAIN DISTRIBUTION OPTIONS PROTECTED. Notwithstanding any other
provision of the Plan, if the Plan is a restatement and any distribution option
available under the Prior Plan is an optional form of benefit within the meaning
of section 411(d)(6) of the Code, such option shall continue to be available to
the extent required by such Code section.
7.20 INCAPACITY OF PAYEE. Subject to the requirements of XXXXX, if any
person to whom a benefit is payable under the Plan is, in the opinion of the
Administrator, incapable for any reason of handling his or her affairs at the
time payment thereof is due, such payment (unless prior demand therefor is made
to the Administrator or the Trustee by a duly qualified guardian or other
legally qualified representative of such person) may be made to the Employee or
persons comprised in the class consisting of the spouse, parent, brothers,
sisters or issue of the person to whom the benefit is payable, as the
Administrator may determine, and each payment made pursuant to such
determination shall constitute a full discharge of all liability under the Plan
with respect thereto.
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7.21 NO VESTED RIGHTS. A Participant who terminates employment with the
Company and the Affiliated Companies for reasons other than retirement or death
and who has no vested benefit under the Plan shall be deemed to receive a
distribution of zero benefits hereunder and shall promptly forfeit all rights to
all benefits under the Plan.
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ARTICLE VIII
WITHDRAWALS AND LOANS
8.1 HARDSHIP WITHDRAWALS.
(a) IN GENERAL. If provided in the Adoption Agreement, a Participant who
has suffered a financial hardship, as determined by the Administrator
in accordance with the provisions of this Section, may withdraw the
amount necessary to meet the hardship, but not in excess of the value
of his or her nonforfeitable interest in his or her Accounts,
exclusive of earnings after December 31, 1988, on Elective
Contributions. Such a withdrawal shall be made in such form and
manner, and with such prior notice, as the Administrator may
prescribe.
Xxxxxxxxxxx will be charged first to the Participant's Rollover
Account, next to his or her Employee Contribution Account, next to his
or her Company Contribution and Matching Contribution Accounts, and
the balance, if any, will be charged to his or her Elective
Contribution Account.
(b) IMMEDIATE AND HEAVY FINANCIAL NEED. For purposes of this Section 8.1,
financial hardship shall consist of:
(i) Expenses for medical care described in section 213(d) of the Code
or necessary to obtain such care incurred by the Participant, his
or her spouse or any of his or her dependents (as defined in
section 152 of the Code);
(ii) The purchase (excluding mortgage payments) of a principal
residence of the Participant;
(iii) The payment of tuition or related fees for the next 12 months of
post-secondary education for the Participant, his or her spouse,
children or dependents; or
(iv) The need to prevent the eviction of the Participant from his or
her principal residence or foreclosure on the mortgage of his or
her principal residence.
The Administrator shall determine whether there is an immediate and
heavy financial need, and the amount of such need, on the basis of
such written evidence from the Participant as the Administrator may
require. The Participant shall also provide evidence that he or she
has obtained all other distributions (other than hardship
distributions) and all nontaxable loans currently available under the
Plan and all other plans maintained by the Company and the Affiliated
Companies.
(c) EFFECT OF HARDSHIP DISTRIBUTION. If a Participant receives a
hardship distribution from his or her Elective Contribution
Account, then any salary reduction agreement, Employee
Contribution election, or any other elective or employee
contribution election in effect with respect to the Participant
under the Plan or any other qualified plan maintained by the
Company or an Affiliated Company shall be suspended for the
12-month period beginning with the date the Participant receives
the distribution. The amount of Elective Contributions made
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for the benefit of the Participant, together with any elective
deferrals made on behalf of the Participant under any other plan
maintained by the Company or an Affiliated Company for the calendar
year immediately following the calendar year of the hardship
distribution must not exceed the applicable limit under section 402(g)
of the Code for such next calendar year, less the amount of such
contributions made on behalf of the Participant for the calendar year
of the hardship distribution.
8.2 WITHDRAWALS AFTER AGE 59 1/2. If provided in the Adoption Agreement, a
Participant who has attained age 59 1/2 may withdraw all or a portion of the
amounts held in one or more of his or her Accounts not in excess of his or her
nonforfeitable interest in such Account. Such withdrawal shall be made in such
form and manner, and with such prior notice, as the Administrator may prescribe.
8.3 OTHER WITHDRAWALS. A Participant may withdraw at any time all or a
portion of the amounts held in his or her Employee Contribution Account. If
provided in the Adoption Agreement, a Participant may withdraw all or a portion
of the amounts held in his or her Rollover Account and his or her Company
Contribution and Matching Contribution Accounts not in excess of his or her
nonforfeitable interest in each such Account; PROVIDED, that (a) he or she has
been a Participant for five years or more, or (b) the withdrawal is limited to
amounts attributable to contributions which have been allocated to the
Participant's Account for at least two years. A withdrawal under this Section
8.3 shall be made in such form and manner, and with such prior notice, as the
Administrator may prescribe.
8.4 LOANS TO PARTICIPANTS. If provided in the Adoption Agreement, and
subject to the conditions of this Section 8.4, loans shall be made from the
Trust to Participants upon the written request of the Participant.
(a) The Administrator shall prescribe such rules and procedures as it
deems necessary or appropriate to carry out the purposes of this
Section. All such rules and procedures shall be considered part of the
Plan for purposes of Department of Labor Regulations, section
2550.408b-1(d).
(b) The following limitations shall apply in determining the amount of any
loan under the Plan:
(i) The amount of the loan, together with any other outstanding
indebtedness of the Participant under the Plan or any other
qualified retirement plans of the Company and the Affiliated
Companies, shall not exceed $50,000 reduced by the excess of (A)
the highest outstanding loan balance of the Participant from such
plans during the one-year period ending on the day prior to the
date on which the loan is made, over (B) the Participant's
outstanding loan balance from such plans immediately prior to the
loan.
(ii) The amount of the loan shall not exceed 50 percent of the
Participant's nonforfeitable interest in his or her Accounts,
determined as of the Valuation Date immediately preceding the
date of the loan.
(c) Each loan shall be evidenced by a note signed by the Participant and
shall be secured by 50 percent of his or her nonforfeitable interest
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in his or her Accounts. The loan shall bear interest at an annual
percentage interest rate to be determined by the Administrator. In
determining the interest rate, the Administrator shall take into
consideration interest rates currently being charged by persons in the
business of lending with respect to loans made in similar
circumstances. The Administrator shall make such determination through
consultation with one or more lending institutions, as the
Administrator deems appropriate.
(d) Each loan made to a Participant who is receiving regular payments of
Compensation from the Employer shall be repayable by payroll
deduction. Loans made to Participants where payroll deduction is not
practicable shall be repayable in such manner as the Administrator may
from time to time determine. Loan payments shall be made not less
frequently than quarterly, over a specified term as determined by the
Administrator, in substantially level payments. Such term shall not
exceed five years unless the loan is being applied toward the purchase
of a principal residence for the Participant.
(e) If, at the time distribution of benefits is to be made or commence to
a Participant or his beneficiary, there remains any unpaid balance of
a loan under the Plan, such unpaid balance shall, to the extent
consistent with Department of Labor Regulations, become immediately
due and payable in full. Such unpaid balance, together with any
accrued but unpaid interest on the loan, shall be deducted from the
Participant's Accounts subject to the default provisions below, before
any distribution of benefits is made.
(f) In the event of a default in making any payment of principal or
interest when due under the note evidencing any loan under this
Section, if such default continues for more than 14 days after written
notice of the default by the Trustee, the unpaid principal balance of
the note shall immediately become due and payable in full. Such unpaid
principal, together with any accrued but unpaid interest, shall
thereupon be deducted from the Participant's Accounts, subject to the
further provisions of this Section. The amount so deducted shall be
treated as distributed to the Participant and applied by him or her as
a payment of the unpaid interest and principal (in that order) under
the note evidencing such loan. In no event shall the Administrator
apply the Participant's Accounts to satisfy his or her repayment
obligation, whether or not he or she is in default, unless the amount
so applied could otherwise be distributed in accordance with the Plan.
(g) The note evidencing a loan to a Participant shall be an asset of the
Trust which is allocated to the Accounts of the Participant and shall
for purposes of the Plan be deemed to have a value at any given time
equal to the unpaid principal balance of the note plus the amount of
any accrued but unpaid interest.
(h) A Participant may designate the Account or Accounts from which his or
her loan is to be made. In the absence of such a designation, the loan
shall be made proportionately from the Participant's Accounts under
the Plan.
(i) if the Participant's benefit is subject to sections 401(a)(11) and 417
of the Code, the written consent of the Participant's spouse to the
loan must be obtained in accordance with Section 7.8.
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(j) Loans shall be made available under this Section to all Participants
on a reasonably equivalent basis, except that the Administrator may
make reasonable distinctions based on creditworthiness and financial
need.
(k) For purposes of this Section, a former Participant or beneficiary who
is a party in interest with respect to the Plan, within the meaning of
section 3(14) of ERISA, shall be treated as a Participant.
ARTICLE IX
TOP-HEAVY PROVISIONS
9.1 TOP-HEAVY MINIMUM CONTRIBUTIONS. Notwithstanding any other provision of
the Plan, for any Plan Year which is a top-heavy plan year, each Participant who
is a Participant on the last day of such Plan Year and who is not a key employee
shall be entitled to receive a minimum contribution under the Plan equal to the
lesser of (a) 3 percent of his or her Compensation for such Plan Year, or (b) if
the Company or the Affiliated Company does not maintain a defined benefit plan
required to be aggregated with the Plan, the largest percentage of Compensation
contributed (exclusive of Employee Contributions) on behalf of a key employee
for such Plan Year. If the Company or the Affiliated Company maintains a defined
benefit plan required to be aggregated with the Plan, such minimum contribution
shall be equal to 5 percent of the Participant's Compensation for the Plan Year.
Notwithstanding the foregoing, no minimum contribution will be required with
respect to a Participant who is also covered by another top-heavy plan of the
Company or an Affiliated Company under which he or she receives the top-heavy
minimum contribution or the top-heavy defined benefit minimum.
9.2 TOP-HEAVY VESTING. Notwithstanding any other provision of the Plan, for
each Employee who is a Participant at any time during a top-heavy plan year the
nonforfeitable percentage of the Participant's Company Contribution and Matching
Contribution Accounts shall be determined in accordance with the following
schedule:
If the period of his or her
Credited Service is: The percentage shall be:
--------------------------- ------------------------
Less than 2 years 0%
2 years but less than 3 years 20%
3 " " " " 4 " 40%
4 " " " " 5 " 60%
5 " " " " 6 " 80%
6 or more years 100%
9.3 ADJUSTMENT TO LIMITATION ON BENEFITS. For purposes of the limits of
section 415 of the Code, the definitions of "defined contribution plan fraction"
and "defined benefit plan fraction" shall be modified, for any Plan Year which
is a top-heavy plan year, by applying the special rule in section 416(h) of the
Code unless (a) the Plan and each plan with which the Plan is required to be
aggregated for top-heavy purposes satisfies the requirements of section
416(h)(2)(A) of the Code and section 1.416-1, M-14 of the Treasury Regulations,
and (b) such Plan Year would not be a top-heavy plan year if "90 percent" were
substituted for "60 percent" in the definition of a top-heavy plan year.
9.4 DEFINITIONS. For purposes of these top-heavy provisions, the following
terms have the following meanings:
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(a) "key employee" means a key employee described in Code section
416(i)(l) of the Code; and
(b) "top-heavy plan year" means a Plan Year if the sum of the account
balances of all key employees under the Plan and each other defined
contribution plan (as of the applicable determination date of each
such plan) which is aggregated with the Plan, plus the sum of the
present values of the total accrued benefits of all key employees
under each defined benefit plan (as of the applicable determination
date of each such plan) which is aggregated with the Plan exceeds 60
percent of the sum of such amounts for all Employees and former
Employees (other than former key employees, but including
beneficiaries of former Employees) under the Plan and all such plans.
For purposes of these determinations:
(i) The foregoing determination will be made in accordance with the
provisions of section 416 of the Code and Treasury Regulations
thereunder, which are specifically incorporated herein by
reference.
(ii) The term "determination date" means, with respect to the initial
plan year of a plan, the last day of such plan year and, with
respect to any other plan year of a plan, the last day of the
preceding plan year of such plan. The term "applicable
determination date" means, with respect to the Plan, the
determination date for the Plan Year of reference and, with
respect to any other plan, the determination date for any plan
year of such plan which falls within the same calendar year as
the applicable determination date of the Plan.
(iii) Accrued benefits or account balances under a plan will be
determined as of the most recent valuation date of the plan in
the 12-month period ending on the applicable determination date
of the plan; PROVIDED, HOWEVER, that in the case of a defined
benefit plan such valuation date must be the same date as is
employed for minimum funding purposes, and in the case of a
defined contribution plan the value so determined will be
adjusted for contributions made after the valuation date to the
extent required by applicable regulations.
(iv) If any individual has not received any compensation from the
Company or an Affiliated Company maintaining a plan (other than
benefits under the plan) at any time during the five-year period
ending on the applicable determination date with respect to such
plan, any accrued benefit for such individual (and the account of
such individual) under such plan shall not be taken into account.
(v) Each plan of the Company or an Affiliated Company (whether or not
terminated) in which a key employee participates, and any other
plan of the Company or an Affiliated Company which enables a plan
referred to in the preceding clause to satisfy the requirements
of sections 401(a)(4) and 410 of the Code, shall be aggregated
with the Plan. Any plan of the Company or an Affiliated Company
not required to be aggregated with the Plan may nevertheless, at
the discretion of the Administrator, be aggregated with the Plan
if the benefits and coverage of all
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aggregated plans would continue to satisfy the requirements of
sections 401(a)(4) and 410 of the Code.
(vi) The determination of the present value of accrued benefits under
a defined benefit plan shall be made on the basis of the funding
assumptions employed by such plan.
ARTICLE X
TRUSTEE
10.1 APPOINTMENT. A Trustee for the Plan shall be named in a trust
instrument executed by the Sponsor, and, upon acceptance thereof, the Trustee
shall perform the duties and exercise the authority of the Trustee as set forth
in the Plan and trust instrument. All assets of the Plan shall, until disposed
of pursuant to the provisions of the Plan, be held in the Trust in the
possession of the Trustee.
10.2 REMOVAL AND REPLACEMENT. The Sponsor shall reserve the right to remove
the Trustee at any time and to appoint a successor Trustee.
10.3 CHANGES IN TRUST ARRANGEMENTS. The Sponsor may from time to time enter
into such further agreements with the Trustee or other parties, make such
amendments to trust instruments or take such other action as it may deem
necessary or desirable to carry out the Plan.
ARTICLE XI
ADMINISTRATION OF PLAN
11.1 APPOINTMENT OF ADMINISTRATOR. The Plan shall be administered by the
Administrator who shall be appointed by and serve at the pleasure of the
Sponsor. The Administrator may also appoint one or more assistant administrators
and other persons, who shall serve at its pleasure, to assist it in the
administration of the Plan and may allocate and delegate its fiduciary
responsibilities under the Plan by written instrument in accordance with section
405 of ERISA.
If a committee is appointed as Administrator, the committee shall act by a
majority of its members; PROVIDED, that no member of the committee shall vote on
or decide any matter relating to himself or herself as a Participant. All such
matters shall be voted on or decided by the other members of the committee and,
in the event that they do not agree, by the Board of Directors of the Sponsor,
and the vote, decision or determination of such other members or of the Sponsor,
as the case may be, shall be final and conclusive upon the interested member of
the committee. A formal meeting of the committee need not be called or held for
the purpose of making any decision, but decisions may be made and evidenced by a
written document signed by a majority of the committee.
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11.2 POWERS AND DUTIES. In addition to such powers and duties as may be
specified elsewhere in this instrument, the Administrator shall have the
discretionary authority to:
(a) Make and enforce such rules as it deems necessary or proper for the
administration of the Plan;
(b) Determine all matters relating to the eligibility of persons to become
Participants in the Plan and determine whether or not any Eligible
Employee has become a Participant in the Plan;
(c) Determine whether and when the employment of any Participant has been
terminated and, if material to a determination of the benefits of such
Participant, the cause of such termination;
(d) Decide all questions and disputes which may arise from time to time
with respect to the rights under the Plan of Employees, Participants
and all other persons who may be entitled to benefits under the Plan;
(e) Compute, or cause to be computed, the amount of benefits which will be
payable to any Participant or other person, to determine the person or
persons to whom such benefits will be paid and to authorize the
payment of such benefits;
(f) Furnish to the Trustee from time to time in writing all such
information, data and directions as may be required by the Trustee or
the terms of this instrument for the performance by the Trustee of its
duties hereunder;
(g) Determine such matters as may from time to time be submitted to it by
the Trustee which the Trustee states to be necessary for it properly
to discharge its duties, powers and obligations under this instrument;
(h) Keep, or cause to be kept, such books and records as may be necessary
or appropriate for the orderly administration of the Plan, all such
books and records to be open to inspection at any time by the Sponsor;
(i) Execute and file, or cause to be executed and filed, such reports or
other documents, and make, or cause to be made, such disclosures, as
the Plan or any one acting for the Plan may be required to execute and
file or make by any applicable law or statute now or hereafter
enacted, unless otherwise provided by such law or statute;
(j) Interpret and construe any and all of the provisions of this
instrument; and
(k) Perform all such other duties and acts as may be required to be
performed by the Administrator by the terms of this instrument and the
operation of the Plan.
11.3 EFFECT OF INTERPRETATION OR DETERMINATION. Any interpretation of the
Plan or other determination with respect to the Plan by the Administrator shall
be final and conclusive on all persons in the absence of clear and convincing
evidence that the Administrator acted arbitrarily and capriciously.
11.4 NONDISCRIMINATORY EXERCISE OF AUTHORITY. Whenever, in the
administration of the Plan, any discretionary action by the Administrator is
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required, it shall exercise its authority in a nondiscriminatory manner so that
all persons similarly situated will receive substantially the same treatment.
11.5 NAMED FIDUCIARY. The Administrator will be a "named fiduciary" for
purposes of section 402(a)(1) of ERISA with authority to control and manage the
operation and administration of the Plan, except that it will have no authority
over the investment of the assets of the Trust.
11.6 EXPENSES AND INDEMNIFICATION. All usual and reasonable expenses of the
Administrator shall be paid in whole or in part by the Company, and any expenses
not paid by the Company shall be paid out of the principal or income of the
Trust, consistent with applicable law. If the Administrator is an Employee he or
she shall not receive compensation with respect to services performed as
Administrator. The Company agrees to indemnify the Administrator and save him or
her harmless against any and all liability occasioned by or arising out of any
action taken, suffered or omitted in good faith by such Administrator.
11.7 EXAMINATION OF RECORDS. The Administrator will make available to each
Participant such of its records as pertain to him or her, for examination at
reasonable times during normal business hours.
11.8 CLAIMS AND REVIEW PROCEDURES.
(a) CLAIMS. If any person believes he or she is being denied any rights or
benefits under the Plan, such person may file a claim in writing with
the Administrator. If any such claim is wholly or partially denied,
the Administrator will notify such person of its decision in writing.
Such notification will contain (i) specific reasons for the denial,
(ii) specific reference to pertinent Plan provisions, (iii) a
description of any additional material or information necessary for
such person to perfect such claim and an explanation of why such
material or information is necessary and (iv) information as to the
steps to be taken if the person wishes to submit a request for review.
Such notification will be given within 90 days after the claim is
received by the Administrator (or within 180 days, if special
circumstances require an extension of time for processing the claim,
and if written notice of such extension and circumstances is given to
such person within the initial 90-day period). If such notification is
not given within such period, the claim will be considered denied as
of the last day of such period and such person may request a review of
his or her claim.
(b) REVIEW PROCEDURE. Within 60 days after the date on which a person
receives a written notice of a denied claim (or, if applicable, within
60 days after the date on which such denial is considered to have
occurred) such person (or his or her duly authorized representative)
may (i) file a written request with the Administrator for a review of
the denied claim and of pertinent documents and (ii) submit written
issues and comments to the Administrator. The Administrator will
notify such person of its decision in writing. Such notification will
be written in a manner calculated to be understood by such person and
will contain specific reasons for the decision as well as specific
references to pertinent Plan provisions. The decision on review will
be made within 60 days after the request for review is received by the
Administrator (or within 120 days, if special circumstances require an
extension of time for processing the request, such as an election by
the Administrator to hold a hearing, and if written notice of such
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extension and circumstances is given to such person within the initial
60-day period). If the decision on review is not made within such
period, the claim will be considered denied.
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ARTICLE XII
AMENDMENT AND TERMINATION
12.1 AMENDMENT. The Sponsor shall have the right, at any time and from time
to time, to modify or amend the Plan or any of its provisions, each such
modification or amendment to be by instrument in writing; PROVIDED, that no such
modification or amendment shall be such, or shall be so construed, as to:
(a) Cause or permit any assets of the Trust to be diverted to purposes
other than the exclusive benefit of Participants and their
beneficiaries, as provided in Section 13.2;
(b) Reduce the benefits then accrued, or the nonforfeitable interest in
such benefits, of any Participant in the Plan; or
(c) Change, without the prior written consent of the Trustee or
Administrator, any of the powers, rights, duties or obligations of the
Trustee or Administrator, as the case may be,
unless such modification or amendment is necessary or appropriate in order to
qualify the Plan or Trust under section 401(a) or 501(a) of the Code, or to
retain such qualified status, or to insure compliance of the Plan with ERISA.
12.2 TERMINATION. Although the Sponsor expects to continue the Plan
indefinitely, it expressly reserves the right to terminate it at any time by an
instrument in writing, the termination to be effective on the date specified in
such instrument. From and after the termination date, no further contributions
shall be made by the Company and the Trustee shall proceed with the liquidation
of the Trust. In the event of a termination or partial termination of the Plan,
or the complete discontinuance of contributions by the Company, each affected
Participant or other person entitled to benefits under the Plan shall be
entitled to a nonforfeitable benefit, payable as otherwise provided in the Plan,
equal in amount to the value of the Participant's Accounts determined as of the
Valuation Date coinciding with or immediately preceding the date distribution is
to be made or commence. If the Company or an Affiliated Company maintains a
defined contribution plan (other than an employee stock ownership plan as
defined in section 4975(e)(7) of the Code), a Participant's benefits will not be
distributed without the Participant's consent. In the event a successor plan, as
defined for purposes of section 401(k) of the Code, is established or
maintained, distribution shall be made in accordance with the requirements of
such Code section. Upon the completion of distributions, the Trust will
terminate and no Participant or other person shall have any claims under the
Plan or Trust, except as required by applicable law.
12.3 NOTICES WITH RESPECT TO TERMINATION. No payment of benefits or
distribution of assets shall be made by the Trustee hereunder until receipt by
it of written confirmation from the Sponsor that it has given all notices and
prepared and filed all reports which may be required by law.
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
13.1 PARTICIPANT AND EMPLOYEE RIGHTS. The Plan shall not be deemed to give
any Participant or Employee the right to be retained in the employ of the
Company or an Affiliated Company, or confer on any Participant or Employee any
rights, legal or equitable, except such as are expressly set forth in the Plan.
No provision of the Plan nor any action taken by the Company under the Plan
shall in any way prevent the Company or an Affiliated Company from terminating
the employment of any Employee or Participant at any time, nor subject it to any
liability under this instrument for any such termination.
13.2 EXCLUSIVE BENEFIT. The Plan and Trust are for the exclusive benefit of
the Employees of the Company and the Affiliated Companies. No part of the assets
of the Trust shall be held for purposes other than the exclusive benefit of
Participants and their beneficiaries and the payment of expenses of
administering the Plan and Trust. Except as provided in Sections 4.11 and 13.4,
no funds paid to the Trust under the Plan and no funds or property at any time
held by the Trustee shall revert or inure to the possession, ownership or
control of the Company.
13.3 RELEASE BY PARTICIPANTS. Except to the extent that it relieves the
Company, the Administrator or the Trustee from responsibility or liability for
any responsibility, obligation or duty owing to the Plan or any Participant, any
payment to any Participant or to any person entitled to a benefit under the
Plan, made in accordance with the provisions of this instrument, shall to the
extent thereof be in full satisfaction of all claims against any or all of the
Trustee, the Administrator and the Company, any of whom may require such
Participant or person, as a condition precedent to such payment, to execute a
receipt and release therefor in such form as shall be determined by the Trustee,
the Administrator or the Company, as the case may be.
13.4 FAILURE OF INITIAL QUALIFICATION. If the Plan is a new plan and it is
determined by the Internal Revenue Service that the Plan does not initially
qualify under section 401(a) of the Code, all assets then held in the Trust
shall be returned to the Company within one year of the date the application is
denied; PROVIDED, that the application is made by the time prescribed by law for
filing the Company's income tax return for the fiscal year in which the Plan is
adopted. Upon such distribution the Plan will be considered to be rescinded and
to be of no force or effect.
13.5 MERGER. In the event of any merger or consolidation of the Plan with
any other plan, or in the event of any transfer of assets and liabilities from
the Plan to any other plan, the assets of the Plan applicable to any Participant
shall be transferred to such other plan only if the benefit to which such
Participant is entitled immediately after the merger, consolidation or transfer
(determined as if the plan had then terminated) is equal to or greater than the
benefit which he or she would have been entitled to receive if the Plan had
terminated immediately prior to such merger, consolidation or transfer.
13.6 GOVERNING LAW. This instrument shall be construed, and the rights and
liabilities of all persons hereunder shall be determined, in accordance with the
laws of the Commonwealth of Massachusetts, to the extent not preempted by XXXXX.
-33-
39
XXXXXX, XxXXXXXXX & FISH
VOLUME SUBMITTER DISCRETIONARY CONTRIBUTION PLAN
ADOPTION AGREEMENT
40
ARTICLE I
ADOPTION
The Sponsor hereby adopts a discretionary contribution plan in the form of the
Xxxxxx, XxXxxxxxx & Fish Volume Submitter Discretionary Contribution Plan. The
name of the Plan is
The MacDermid Equipment 401K Plan
-------------------------------------------------------------------------
The Plan
Select one:
[x] is initially established as of the Effective Date.
[ ] is an amendment and restatement of _______________ which was
initially established on _____________________.
This Adoption Agreement constitutes part of the Plan. Capitalized terms have the
same meanings as in the Plan document.
ARTICLE II
DEFINITIONS
2.11 "Compensation" under Section 2.11(c) means (select one):
Select one:
[ ] the amounts specified in Section 2.11(a).
[ ] the amounts specified in Section 2.11(b).
[ ] wages within the meaning of section 3401(a) of the Code and
all other payments of compensation paid to the Participant
while a Participant by the Company (in the course of the
Company's trade or business) for which the Company is
required to furnish the Participant a written statement
under sections 6041(d), 6051(a)(3), and 6052 of the Code.
Compensation under this paragraph shall be determined
without regard to any rules under section 3401(a) of the
Code that limit the remuneration included in wages based on
the nature or location of the employment or the services
performed.
[ ] wages within the meaning of section 3401(a) of the Code, for
purposes of income tax withholding at the source, paid to
the Participant while a Participant, 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.
[x] other SEE ATTACHMENT.
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41
2.12 "Credited Service" under Section 2.12 shall NOT include the following:
[ ] there are no Breaks in Service under the Plan.
[x] In the case of any Employee who does not have a nonforfeitable
right to a benefit derived from contributions by the Company,
years of Credited Service prior to any Break in Service shall not
be taken into account if the number of consecutive One Year
Breaks in Service is five or more. The aggregate number of years
of Credited Service prior to such Break in Service shall be
deemed not to include any years of Credited Service not required
to be taken into account under this Section by reason of any
prior Break in Service.
[ ] In the case of any Employee who incurs five consecutive One Year
Breaks in Service, Credited Service following such Break in
Service shall not be taken into account for purposes of
determining the Employee's nonforfeitable right to a benefit
derived from contributions by the Company which accrued before
such Break in Service.
[ ] In the case of any Employee who incurs a Break in Service, years
of Credited Service prior to such Break shall not be taken into
account until he or she has completed a year of Credited Service
after such Break in Service.
2.14 "Effective Date" under Section 2.14 means
January 1, 1999 .
-----------------------------------------------------------------
2.17 "Eligible Employee" under Section 2.17 means
[ x ] all Employees of the Company.
[ ] __________________________________________________________.
2.21 "Entry Date" under Section 2.21 means the following dates (which, with
respect to any Participant, cannot be later than six months after the
requirements for eligibility are satisfied)
The first of any month
-------------------------------------------------------------------
2.27 "Normal Retirement Age" under Section 2.27 means
Age 65 .
--------------------------------------------------------------------
2.30 "Plan Year" and "Limitation Year" under Section 2.30 mean
The 12 month period ending March 31st. .
--------------------------------------------------------------------
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42
ARTICLE III
PARTICIPATION
3.1 Each Eligible Employee of the Company shall become eligible to participate
in the Plan upon satisfying ALL of the following indicated requirements:
[ ] the completion of an Hour of Service.
[x] the completion of a period of employment of 30 days (without regard
to Hours of Service).
[ ] the completion of one Year of Service with respect to Elective
Contributions.
[ ] the completion of ____________ Years of Service.
[x] the attainment of age 18 _________.
ARTICLE IV
CONTRIBUTIONS
4.2 Employee Contributions under Section 4.2
[ ] are permitted.
[x] are not permitted.
If permitted, Employee Contributions may be made in an amount equal to a whole
percentage of the Participant's Compensation from ___ to ___ percent.
4.3 Elective Contributions under Section 4.3
[x] are permitted.
[ ] are not permitted.
If permitted, Elective Contributions may be made in an amount equal to a whole
percentage of the Participant's Compensation from 1 to 15 percent.
A salary reduction agreement shall be effective as of the 1st day of the month
_______ following its execution by the Participant.
4.4 Matching Contributions under Section 4.4
[x] will be made by the Company.
[ ] will not be made by the Company.
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43
If permitted, Matching Contributions will be made, with respect to each eligible
Participant, in an amount equal to 50% OF THE FIRST 6% OF ELECTIVE CONTRIBUTIONS
INVESTED IN MACDERMID INCORPORATED COMPANY STOCK.
4.6 If the Company maintains, or has maintained, any other qualified plan or
plans, contributions and benefits will be limited in accordance with the
requirements of Section 4.6
[x] first under this Plan.
[ ] by the following means _____________________________________________
_______________________________________________________________________________.
4.12 Rollovers under Section 4.12
[x] are permitted.
[ ] are not permitted.
ARTICLE V
ALLOCATION TO PARTICIPANTS' ACCOUNTS
5.2 A Participant will be entitled to share in the Company Contribution for a
Plan Year if he or she
Select all that apply:
[ ] has been a Participant at any time during the Plan Year.
[x] is a Participant on the last day of the Plan Year.
[x] has completed 1000 Hours of Service during the Plan Year.
[x] retires or dies during the Plan Year (without regard to Hours
of Service).
5.3 Forfeitures for a Plan Year shall be
[x] applied to reduce contributions by the Company for the Plan Year if
related to Company matching contributions under Section 4.4.
[x] allocated to Participants who are Participants on the last day of the
Plan Year in the proportion that each Participant's Compensation bears
to the total Compensation of all such Participants if related to
Company Contributions under Section 4.1.
5.5 The Trust shall be invested under Section 5.5 as follows:
[x] Each Participant shall direct the investment of the following
percentages of amounts in his or her Accounts:
100% of Elective Contributions .
---------------------------------------------------------------------
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44
[ ] The Trustee shall direct the investment of the following portion
of the Trust:
_____________________________________________________________________.
[ ] An investment manager shall direct the investment of the following
portion of the Trust: ______________________________________________.
ARTICLE VI
RETIREMENT
6.2 Retirement in the event of disability
[x] is permitted under the Plan.
[ ] is not permitted under the Plan.
ARTICLE VII
BENEFITS
7.3 Each Participant's nonforfeitable percentage of amounts held in his or her
Company Contribution and Matching Contribution Accounts upon termination of
employment prior to Normal Retirement Age under Section 7.3 shall be
[x] 100 percent after five years of Credited Service.
[ ] a percentage determined in accordance with the following schedule:
If the period of his or The applicable
her Credited Service is: percentage shall be:
------------------------------------------------------
Less than 3 years 0%
3 but less than 4 years 20%
4 but less than 5 years 40%
5 but less than 6 years 60%
6 but less than 7 years 80%
7 years or more 100%
[ ] other _________________________________________.
7.5 Distribution of benefits under Section 7.5 may be made in the following
forms:
[ ] an immediate lump sum payment.
[ ] substantially equal installments payable not less frequently
than annually over a period not to exceed the life expectancy
of the Participant or the joint life expectancies of the
Participant and his or her beneficiary.
[ ] an annuity.
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45
[x] any combination of the above.
[ ] Annuity distributions under Section 7.7 will be the normal
form of benefit under the Plan.
7.6 In the event of termination of employment for reasons other than retirement
or death, a Participant
[x] may elect to receive benefits prior to his or her Normal
Retirement Date.
[ ] may not elect to receive benefits prior to his or her Normal
Retirement Date.
[x] may elect to defer the commencement of benefits.
[ ] may not elect to defer the commencement of benefits.
7.6 Distribution of benefits shall be made or commence under Section 7.6 as of
any __________ day of any
[x] month.
[ ] calendar quarter.
[ ] year.
7.7 Life expectancies of the Participant and the Participant's spouse
[ ] shall be recalculated annually.
[x] shall not be recalculated.
ARTICLE VIII
WITHDRAWALS AND LOANS
8.1 Hardship withdrawals under Section 8.1
[x] are permitted.
[ ] are not permitted.
8.2 Withdrawals after age 59 1/2 under Section 8.2
[x] are permitted.
[ ] are not permitted.
8.3 Other withdrawals from Participants' Company and Matching Contribution
Accounts under Section 8.3
[ ] are permitted.
[x] are not permitted.
8.4 Loans to Participants under Section 8.4
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46
[x] are permitted.
[ ] are not permitted.
ARTICLE IX
TOP-HEAVY PROVISIONS
9.1 If the Company maintains a defined benefit plan required to be aggregated
with the Plan, the top-heavy minimum will be provided
[x] under Section 9.1 of the Plan.
[ ] by the following means ________________________________________
_________________________________________________________________.
IN WITNESS WHEREOF, the Sponsor has caused this Adoption Agreement to be
executed
this day of , 199.
By __________________________________________
________ Its__________________________________________
Accepted by the Trustee:
______________
By ___________
-8-
47
MACDERMID EQUIPMENT 401(K) PLAN
Attachment to Plan and Trust
WHEREAS, the Plan and Trust have not been amended to reflect certain
changes in the employee benefit plan qualification requirements of Section
401(a) of the Internal Revenue Code of 1986 (the "Code") enacted since the Plan
and Trust were established, including changes to the qualification requirements
made by the Uruguay Round Agreements Act, the Small Business Job Protection Act
of 1996, and the Taxpayer Relief Act of 1997; and
WHEREAS, the remedial amendment period with respect to the foregoing
qualification changes has been extended generally until the last day of the
first plan year beginning on or after January 1, 2000, see generally Revenue
Procedure 99-23, I.R.B. 1999-16, 5 (April 5, 1999); and
WHEREAS, notwithstanding the extension of the remedial amendment period
for these qualification changes, the Employer desires that the Plan and Trust be
administered in accordance with applicable law in effect during the remedial
amendment period;
NOW, THEREFORE, the Employer directs that the Plan and Trust be deemed
to have been amended, solely for purposes of plan administration, as follows:
1. "Compensation" shall (i) be determined without regard to the final
sentence of Section 2.11, and (ii) include any elective deferral (as defined in
section 402(g)(3) of the Code) and any amount that is contributed or deferred by
the Company at the election of the Employee and which is not includable in the
gross income of the Employee by reason of section 125 of the Code.
2. The definition of "Highly Compensated Employee" set forth in Section
2.23 shall be replaced with the following definition:
"`Highly Compensated Employee' means an Employee who (a) was a
5-percent owner, as defined in section 416(i)(1) of the Code, of the
Company, at any time during the Plan Year or the preceding Plan Year,
or (b) for the preceding Plan Year received Compensation from the
Company in excess of $80,000 (adjusted as provided in Section 415(d) of
the Code), and, if the Company elects the operation of the remainder of
this clause (b), was in the top twenty percent of all Employees of the
Company on the basis of Compensation for such preceding Plan Year."
3. Section 2.24 of the Plan is amended by inserting immediately after
paragraph (e) of said Section 2.24 the following new paragraph.
"(f) To the extent not already credited under paragraph (a), (b), (c),
(d) or (e) of this Section, each period of qualified military service in the
uniformed services (as defined for
48
purposes of section 414(u)(5) of the Code and the Uniformed Services Employment
and Reemployment Rights Act of 1994 ("USERRA")) served by an Employee shall be
considered, upon reemployment of the Employee by the Company under USERRA, for
purposes of the Plan to be service with the Company for purposes determining
such Employee's eligibility, if any, to receive Matching Contributions and such
Employee's nonforfeitable interest therein."
4. Section 4.7 of the Plan is amended as follows:
(i) delete the first and second sentences of Section 4.7(a) in
their entirety and insert in lieu thereof the following:
"For each Plan Year, the Administrator shall
determine for each Employee eligible to make
Elective Contributions the ratio of his or her
Elective Contributions for the immediately preceding
Plan Year to his or her Compensation for such
preceding Plan Year. To the extent permitted under
Treasury Regulations, the Committee may take into
account only that portion of such preceding Plan
Year during which the Employee was a Participant."
(ii) delete the third sentence of Section 4.7(c) in its entirety
and insert in lieu thereof the following:
"If a distribution becomes necessary, it will be
applied first to the Participant who is the Highly
Compensated Employee having the highest actual
deferral amount, until the limits of section
401(k)(3) are met or until such Participant's actual
deferral amount is reduced to the same amount as
that of the Participant who is the Highly
Compensated Employee having the next highest actual
deferral amount."
(iii) delete the eighth sentence of Section 4.7(c) in its
entirety.
5. Section 4.8 of the Plan is amended as follows:
(i) delete the first sentence of Section 4.8(a) in its entirety
and insert in lieu thereof the following:
"For each Plan Year, the Administrator shall
determine for each Employee eligible for Matching
Contributions, the ratio of the Matching
Contributions made on his or her behalf for the
immediately preceding Plan Year to his or her
Compensation for such preceding Year."
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49
(ii) delete the third sentence of Section 4.8(b) in its entirety
and insert in lieu thereof the following:
"If a distribution becomes necessary, it will be
first applied to the Participant who is the Highly
Compensated Employee with the highest actual
contribution amount, until the limits of Code
section 401(m)(2) are met or until such
Participant's actual contribution amount is reduced
to the same contribution amount as that of the
Participant who is the Highly Compensated Employee
having the next highest actual contribution amount."
(iii) delete the seventh sentence of Section 4.8(b) in its
entirety.
6. Section 7.11 of the Plan is amended by deleting from the first
sentence thereof the reference to "$3,500" and inserting in lieu thereof
"$5,000".
7. Section 7.16 of the Plan is amended by deleting the provisions of
subsection 7.16(b) in their entirety and by inserting in lieu thereof the
following:
"The April 1 next following the end of the later of (i) the
calendar year in which the Participant attains age 70 1/2, and
(ii) except with respect to a Participant who is a 5 percent
owner (as defined in section 416(i)(1)(B)(i) of the Code) of the
Company for the Plan Year ending in the calendar year in which
the Participant attains age 70 1/2, the calendar year in which
the Participant retires."
8. Section 7.17 of the Plan is amended by designating the first (and
only) paragraph thereof as "(a)" and by inserting after such subsection (a) the
following new subsection:
"(b) The non-alienation rule of Section 1(a) above shall not apply to
any offset, as defined by the Administrator, of a Participant's
benefit(s) under the Plan against an amount that the Participant
is ordered or required to pay to the Plan if:
(i) the order or requirement to pay arises (1) under a judgment
of conviction for a crime involving the Plan; (2) under a
civil judgment (including a consent order or decree) entered
by a court in an action brought in connection with a
violation (or alleged violation) of Part 4 of Subtitle B of
Title I of the ERISA; or (3) pursuant to a settlement
agreement between the Secretary of the United States
Department of Labor and the Participant, or a settlement
agreement between the Pension Benefit Guaranty Corporation
and the Participant, in connection with a violation (or
alleged violation) of Part 4 of Subtitle B of Title I of
ERISA by a
-3-
50
fiduciary (as defined in Section 3(21) of ERISA) or any
other person; and
(ii) the judgment, order, decree, or settlement agreement
expressly provides for the offset of all or part of the
amount ordered or required to be paid to the Plan against
the Participant's benefit(s) provided under the Plan; and
(iii) in a case in which the survivor annuity requirements of
Section 205 of ERISA or Section 401(a)(11) of the Code apply
with respect to distributions from the Plan to the
Participant, if the Employee has a spouse at the time at
which the offset is to be made;
(1) either:
(A) such spouse has consented in writing to such offset
and such consent is witnessed by a notary public or
Plan representative designated by the Administrator
(or it is established to the satisfaction of such
Plan representative that such consent may not be
obtained by reason of circumstances described in
Section 205(c)(2)(5) of ERISA or Section
417(a)(2)(B) of the Code, or
(B) an election to waive the right of the spouse to a
qualified joint and survivor annuity or a qualified
preretirement survivor annuity is in effect in
accordance with the requirements of Section 205(c)
of ERISA or Section 417(a) of the Code; or
(2) such spouse is ordered or required in such judgment,
order, decree, or settlement to pay an amount to the
Plan in connection with a violation of Part 4 of
Subtitle B of Title I of ERISA; or
(3) in such judgment, order, decree, or settlement, such
spouse retains the right to receive the survivor
annuity under a qualified joint and survivor annuity
provided pursuant to Section 205(a)(1) of ERISA or
Section 401(a)(11)(A)(i) of the Code, and under a
qualified preretirement survivor annuity provided
pursuant to Section 205(a)(2) of ERISA or Section
401(a)(11)(A)(ii) of the Code, determined in
accordance with Section 206(d)(5) of ERISA and
Section 401(a)(13)(D) of the Code."
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51
MacDermid Equipment, Inc.
Dated: ________________ By: _______________________________
Title:
Accepted by the Trustee:
By:_____________________
Title:
Dated: __________________
-5-
52
MACDERMID EQUIPMENT
401(k) PLAN
Attachment to Adoption Agreement
SECTION 2.11 "Compensation" under Section 2.11(c) means (a) for purposes of
Section 4.3, the amounts specified in Section 2.11(b); and (b) for
purposes of Section 5.2, with respect to any Participant, such
Participant's wages for the Plan Year within the meaning of Code
Section 3401(a) (for the purposes of income tax withholding at the
source), excluding (even if includable in gross income) overtime,
commissions, bonuses, reimbursements or other expense allowances,
fringe benefits (cash or noncash), deferred compensation, and
welfare benefits.
MACDERMID EQUIPMENT, INC.
Dated: __________________________ By: _________________________________
Title:
Accepted by the Trustee:
By: _____________________________
Title:
