XXXX SAVINGS PLAN
AND
TRUST AGREEMENT
As Amended and Restated as of October 1, 1996.
XXXX SAVINGS PLAN
Table of Contents
Page
ARTICLE I.
DEFINITIONS AND CONSTRUCTION
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . 2
Section 1.02. Construction . . . . . . . . . . . . . . . . . . . . 5
ARTICLE II.
PARTICIPATION, VESTING SERVICE, BREAK IN SERVICE
Section 2.01. Participation . . . . . . . . . . . . . . . . . . . . 6
Section 2.02. Vesting Service . . . . . . . . . . . . . . . . . . . 7
Section 2.03. Break in Service . . . . . . . . . . . . . . . . . . 7
Section 2.04. Service for Controlled Group . . . . . . . . . . . . 7
ARTICLE III.
CONTRIBUTIONS TO THE TRUST FUND
Section 3.01. Election to Make Deposits . . . . . . . . . . . . . . 8
Section 3.02. Amount and Payment of Participant Deposits . . . . . 8
Section 3.03. Company Matching Contributions . . . . . . . . . . . 9
Section 3.04. No Liability for Future Company Contributions . . . . 10
Section 3.05. Time Period for Payment of Company Contributions . . 10
ARTICLE IV.
INVESTMENTS
Section 4.01. Direction of Investment . . . . . . . . . . . . . . . 11
Section 4.02. Reallocation of Accounts . . . . . . . . . . . . . . 11
Section 4.03. Description of Funds . . . . . . . . . . . . . . . . 11
Section 4.04. Funding Policy . . . . . . . . . . . . . . . . . . . 12
ARTICLE V.
PARTICIPANT ACCOUNTS
Section 5.01. Participant Accounts . . . . . . . . . . . . . . . . 13
Section 5.02. Allocation of Participant Deposits . . . . . . . . . 13
Section 5.03. Allocation of Company Matching Contributions . . . . 13
Section 5.04. Disposition of Forfeitures . . . . . . . . . . . . . 13
Section 5.05. Allocation of Changes in Value . . . . . . . . . . . 13
Section 5.06. Maximum Allocation Limitations . . . . . . . . . . . 13
ARTICLE VI.
BENEFITS
Section 6.01. Eligibility for Benefits and Vesting . . . . . . . . 15
Section 6.02. Death . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 6.03. Form and Time of Payment . . . . . . . . . . . . . . 16
Section 6.04. Payments to Minor or Incompetent Person . . . . . . . 18
Section 6.05. Direct Transfer of Eligible Rollover Distributions . 19
Section 6.06. Withdrawals . . . . . . . . . . . . . . . . . . . . . 19
Section 6.07. Erroneous Overpayments . . . . . . . . . . . . . . . 20
Section 6.08. Xxxx Company Common Stock . . . . . . . . . . . . . . . 21
ARTICLE VII.
PLAN ADMINISTRATION
Section 7.01. Appointment of Administrator . . . . . . . . . . . . 22
Section 7.02. Responsibility and Authority of the Administrator . . 22
Section 7.03. Use of Professional Services . . . . . . . . . . . . 23
Section 7.04. Fees and Expenses . . . . . . . . . . . . . . . . . . 23
Section 7.05. Delegation of Authority and Responsibility . . . . . 23
Section 7.06. Requirement to Furnish Information and to Use
Administrator's Forms . . . . . . . . . . . . . 24
Section 7.07. Claims Procedure . . . . . . . . . . . . . . . . . . 24
Section 7.08. Agent for Service of Process . . . . . . . . . . . . 24
ARTICLE VIII.
TRUSTEE
Section 8.01. Successor Trustee . . . . . . . . . . . . . . . . . . 25
Section 8.02. General Powers . . . . . . . . . . . . . . . . . . . 25
Section 8.03. Payments from the Trust Fund . . . . . . . . . . . . 26
Section 8.04. Trustee Accounting . . . . . . . . . . . . . . . . . 26
Section 8.05. Settlement of Trustee Accounts . . . . . . . . . . . 26
Section 8.06. Reliance on Written Communications . . . . . . . . . 27
Section 8.07. Trustee Fees and Expenses . . . . . . . . . . . . . . 27
ARTICLE IX.
INVESTMENT OF TRUST FUND
Section 9.01. Trustee Investment of Trust Fund . . . . . . . . . . 28
Section 9.02. Appointment of Investment Manager . . . . . . . . . . 28
ARTICLE X.
FIDUCIARIES AND ALLOCATION OF RESPONSIBILITIES
Section 10.01. Fiduciaries . . . . . . . . . . . . . . . . . . . . 29
Section 10.02. Allocation of Fiduciary Responsibilities . . . . . . 29
Section 10.03. General Limitation on Liability . . . . . . . . . . 29
Section 10.04. Multiple Fiduciary Capacities . . . . . . . . . . . 29
ARTICLE XI.
AMENDMENT AND TERMINATION
Section 11.01. Amendment . . . . . . . . . . . . . . . . . . . . . 30
Section 11.02. Termination . . . . . . . . . . . . . . . . . . . . 30
ARTICLE XII.
GENERAL PROVISIONS
Section 12.01. Non-Guarantee of Continued Employment or Other
Benefits . . . . . . . . . . . . . . . . . . . 31
Section 12.02. Mergers, Consolidations and Transfers of Plan Assets 31
Section 12.03. Spendthrift Clause . . . . . . . . . . . . . . . . . 31
Section 12.04. Exclusive Benefit . . . . . . . . . . . . . . . . . 31
Section 12.05. Full Satisfaction of Claims . . . . . . . . . . . . 32
Section 12.06. Indemnification . . . . . . . . . . . . . . . . . . 32
Section 12.07. Counterparts . . . . . . . . . . . . . . . . . . . . 32
Section 12.08. Successors and Assigns . . . . . . . . . . . . . . . 32
Section 12.09. IRS Approval . . . . . . . . . . . . . . . . . . . . 32
Section 12.10. Top-Heavy Restrictions . . . . . . . . . . . . . . . 32
Section 12.11. Retroactive Application of Certain Plan Provisions . 34
ARTICLE XIII.
TRUSTEE ACCEPTANCE
Section 13.01. Date of Acceptance . . . . . . . . . . . . . . . . . 35
XXXX SAVINGS PLAN
THIS TRUST AGREEMENT, revised and continued this 1st day of October,
1996 by and between Xxxx Company, a Wisconsin corporation (hereinafter called
the "Company"), and Xxxxxxxx and Xxxxxx Trust Company as trustee of the trust
hereby continued (hereinafter called the "Trustee").
W I T N E S S E T H:
WHEREAS, effective as of April 22, 1985, the Company adopted the
Xxxx Savings Plan to encourage eligible employees to contribute toward their
own retirement savings through the means of a "cash or deferred arrangement"
under Section 401(k) of the Internal Revenue Code of 1954, as amended; and
WHEREAS, the plan and trust herein set forth is intended to satisfy
the applicable requirements of Sections 401(a), 401(k), and 501(a) of such
Code, as amended by the Tax Reform Act of 1986 (and now known as the Internal
Revenue Code of 1986) and other statutory and regulatory requirements; and
WHEREAS, in order to reflect the change in Trustee and the proposed
change to a daily valuation system, it is necessary to amend and restate the
plan and trust as hereinafter set forth, effective as of October 1, 1996;
NOW, THEREFORE, in consideration of the mutual covenants herein set
forth, the Company and the Trustee agree as follows:
ARTICLE I.
DEFINITIONS AND CONSTRUCTION
Section 1.01. Definitions. Whenever used herein, the following
words and phrases shall have the following meanings, except as required
otherwise by the context:
(a) "Administrator" means the individual, group of individuals,
corporation or other entity appointed by the Board to administer the Plan
pursuant to Section 7.01 hereof.
(b) "Beneficiary" means the person, trust and/or other entity
entitled to receive benefits in the event of the Participant's death. A
Participant shall designate his Beneficiary on the form and in the manner
prescribed by the Administrator and such designation may be changed or
withdrawn by the Participant at any time. The most recent valid designation
on file with the Administrator at the time of the Participant's death shall be
the Beneficiary. Notwithstanding the foregoing, in the event the Participant
is married at the time of his death, the Beneficiary shall be the
Participant's spouse at such time unless such spouse consented in writing to
the designation of an alternative Beneficiary after notice of the spouse's
rights and such consent was witnessed (i) by a Plan representative appointed
by the Administrator or (ii) by a notary public. In the event no valid
designation of a Beneficiary is on file with the Administrator at the date of
death or no designated Beneficiary survives him, the Participant's spouse
shall be deemed the Beneficiary; in the further event the Participant is
unmarried or his spouse does not survive him, the Participant's estate shall
be deemed to be his Beneficiary.
(c) "Board" means the Board of Directors of the Company.
(d) "Break in Service" means, with respect to a Participant, any
Period of Severance which lasts for twelve (12) or more consecutive months.
(e) "Code" means the Internal Revenue Code of 1986, as interpreted
by applicable regulations and rulings issued pursuant thereto, all as amended
and in effect from time to time.
(f) "Company" means Xxxx Company, a Wisconsin corporation, and any
successors and assigns thereto.
(g) "Compensation" means the earnings paid to a Participant for
services on or after his entry date in Section 2.01(a), equal to the sum of
the amount reportable in Box 1 of Form W-2, plus any Deposits hereunder and
salary reduction pursuant to Code Section 125 or 401(k), less any
reimbursements or other expense allowances, fringe benefits (cash or noncash),
moving expenses, deferred compensation, and welfare benefits. The maximum
annual compensation taken into account hereunder for purposes of calculating
any Participant's accrued benefit (including the right to any optional
benefit) and for all other purposes under the Plan shall be $150,000 (or such
higher amount permitted pursuant to Code Section 401(a)(17)). For purposes of
calculating this maximum for any 5 percent owner or highly compensated
employee who is in the group of ten employees paid the greatest compensation
during the year, pursuant to Code Section 414(q)(6), the compensation of a
spouse or a lineal descendant under age nineteen before the end of the Plan
Year shall be treated as if paid to the employee.
(h) "Date of Hire" means the first day on which an individual
performs an hour of employment as defined in Section 2.01(c) hereof.
(i) "Date of Rehire" means the first day on which an individual
performs an hour of employment upon rehire following a Break in Service.
(j) "Deposits" means amounts designated under the Plan by
Participants pursuant to Article III hereof which are contributed by the
Company in lieu of payment of an equal amount to the Participant as
compensation.
(k) "Employee" means any person employed on other than a temporary
basis (i) by the Company in the position of an office, sales, or supervisory
employee or (ii) in a non-union hourly position by either Xxxx in Madison,
South Dakota, Xxxx Power Products, Inc. in Yankton, South Dakota or
Xxxxxxx-Xxxxxx, Inc. in Lebanon, Pennsylvania. Persons working at other
Company facilities shall become Employees only upon specific action of the
Board. A person who is a "leased employee" within the meaning of Code Section
414(n) and (o) shall not be eligible to participate in the Plan, but in the
event such a person was participating or subsequently becomes eligible to
participate herein, credit shall be given for the person's service as a leased
employee toward completion of the Plan's eligibility and vesting requirements,
including any service for a member of the controlled group or affiliated
service group, if applicable. In addition, "Employee" shall also mean any
person employed in West Bend, Wisconsin, in a position represented by a
collective bargaining unit, provided that any such Employee shall not be
eligible for any contributions under Sections 3.03 and 5.03.
(l) "ERISA" means the Employee Retirement Income Security Act of
1974, as interpreted and applied under regulations and rulings issued pursuant
thereto, all as amended and in effect from time to time.
(m) "Investment Manager" means the Administrator or a person,
insurance company, corporation or association which qualifies as an
"investment manager" as defined in Section 3(38) of ERISA, including the
Trustee, appointed pursuant to Section 9.02 to direct the investment of all or
any portion of the assets held by the Trustee under this Agreement.
(n) "Normal Retirement Date" means the Participant's sixty-fifth
(65th) birthday.
(o) "Participant" means any Employee who satisfies the provisions
of Section 2.01 hereof.
(p) "Period of Severance" means the total period of time,
calculated in years, months and days, which elapses between an employee's
Severance from Service Date and such employee's Date of Rehire.
(q) "Plan" means the profit sharing retirement plan herein
contained, as amended and in effect from time to time, which shall be known as
the "Xxxx Savings Plan."
(r) "Plan Year" means the twelve (12) month period commencing on
January 1 of each year except that the first Plan Year will be April 22, 1985
through December 31, 1985.
(s) "Severance From Service Date" means the earlier of the date on
which an employee's employment with the Company terminates on account of a
quit, discharge, retirement (including retirement due to Total and Permanent
Disability) or death, or the first anniversary of an employee's absence for
any other reason, including a leave of absence, sick leave or disability
leave; provided, however, that, in the case of an employee who leaves active
service with the Company in connection with his commencing to perform military
duty in the armed forces of the United States of America or of any state
thereof under circumstances entitling him to veterans' reemployment rights
pursuant to the Vietnam Era Veterans' Readjustment Act or any other comparable
federal statute, he shall not be deemed to have incurred a Severance from
Service Date hereunder while performing such military duty and shall have the
period thereof included as part of his Vesting Service hereunder if, but only
if, he returns to the Company's service within the applicable time limit and
under the other conditions prescribed by such statutes for his exercise of
such veterans' reemployment rights.
(t) "Total and Permanent Disability" means a physical or mental
condition which totally and presumably permanently prevents a Participant from
engaging in any substantially gainful activity, as determined by the
Administrator based on a medical examination by a doctor or clinic appointed
by the Administrator. Notwithstanding any other provision of this section, no
Participant shall qualify if the Administrator determines that his disability
results from an injury suffered while engaged in a felonious or criminal act
or enterprise.
(u) "Trust Fund" means all sums of money and other property,
together with all earnings, income and other increment thereon, held in trust
for purposes of providing benefits and defraying the reasonable expenses of
the Plan, pursuant to the terms of this Agreement.
(v) "Trustee" means Xxxxxxxx and Xxxxxx Trust Company or any
successor or successors thereto designated by the Board pursuant to Section
8.01 hereof.
(w) "Vesting Service" means a Participant's service with the
Company as calculated under Section 2.02 hereof.
Section 1.02. Construction. (a) Whenever any words are used
herein in the masculine, they shall be construed as though they were used in
the feminine in all cases where they would so apply; and wherever any words
are used in the singular or the plural, they shall be construed as though they
were used in the plural or the singular, as the case may be, in all cases
where they would so apply. The words "hereof," "herein," "hereunder" and
other similar compounds of the word "here" shall mean and refer to this entire
Agreement and not to any particular article or section. Titles of articles
and sections hereof are for general information only, and this Agreement and
the Plan are not to be construed by reference thereto.
(b) The Plan is intended to qualify under Section 401 of the Code
and shall be interpreted so as to comply with the applicable requirements
thereof, where such requirements are not clearly contrary to the express terms
hereof. This Agreement and the Plan shall be construed and their validity
determined according to the laws of the State of Wisconsin to the extent such
laws are not preempted by federal law. In case any provision of this
Agreement and/or the Plan shall be held illegal or invalid for any reason,
said illegality or invalidity shall not affect the remaining parts of this
Agreement and/or the Plan, but this Agreement and/or the Plan shall be
construed and enforced as if said illegal and invalid provisions had never
been inserted therein.
ARTICLE II.
PARTICIPATION, VESTING SERVICE, BREAK IN SERVICE
Section II.01. Participation. (a) An Employee shall become a
Participant as of the first day of any quarter (i.e., January 1, April 1, July
1 or October 1) coincident with or next following his completion of the
qualifying period and filing of the election of Deposits.
(b) The qualifying period shall be the first to occur of the
following:
(i) the twelve (12) month period immediately following
the employee's date of employment during which the
employee accumulates at least 1,000 hours of
employment; or
(ii) any Plan Year commencing after the date of employment
during which the employee accumulates at least 1,000
hours of employment; or
(iii) for any employee regularly scheduled to work forty
(40) hours per week, sixty (60) days of Vesting
Service.
(c) For purposes of this Section an hour of employment is an hour
for which a person is directly or indirectly paid by the Company for the
performance of duties. Hours of employment shall also include each hour not
credited under the preceding sentence for which back pay has been either
awarded or agreed to, irrespective of mitigation of damages, and each of the
first 501 hours during a single continuous period of absence for which a
Participant is paid or entitled to payment for vacation, holiday, illness,
incapacity (including disability), layoff, jury duty, military duty, or leave
of absence. Notwithstanding the foregoing, no credit shall be given for
payments pursuant to applicable workers' compensation or unemployment
compensation or disability insurance laws. The Administrator shall determine
each Participant's hours of employment in accordance with Department of Labor
Regulations 2530.200b-2(b) and (c).
(d) A former Participant who is rehired by the Company shall resume
participation in the Plan as of the first day of the calendar month coincident
with or next following his election to make Deposits.
(e) It is expressly provided that any employee who is in a unit of
employees covered by a collective bargaining agreement shall become, or
continue as, a Participant only if such bargaining agreement specifically
provides that employees in such unit shall be covered by the Plan.
Section II.02. Vesting Service. Each Participant shall be credited
with Vesting Service equal to the aggregate periods of time between his Date
of Hire or subsequent Date of Rehire, as applicable, and the next following
Severance from Service Date. A Participant shall also be credited with
Vesting Service for any Period of Severance of less than twelve (12)
consecutive months in duration. Except for purposes of eligibility to
participate pursuant to Section 2.01(b)(iii), Vesting Service shall not count
any period prior to January 1, 1985.
Section II.03. Break in Service. Vesting Service earned after a
Break in Service which lasts for at least six (6) years shall not be
considered for purposes of determining a Participant's vested interest in
amounts accrued in his account prior to the Break in Service. Vesting Service
earned prior to a Break in Service shall be aggregated with Vesting Service
earned after the Break in Service for purposes of determining a Participant's
vested interest in amounts accrued in his account after the Break in Service.
Separate accounts shall be maintained for amounts accrued with respect to a
Participant before a six (6) year Break in Service and after such a Break in
Service.
Section II.04. Service for Controlled Group. Solely for purposes of
Sections 2.01(b), 2.01(c), 2.02, and 2.03 hereof, employment with the Company
shall include employment with any member of a controlled group of
corporations, a group of trades or businesses under common control or an
affiliated service group member as defined in Code Sections 414(b), (c) and
(m) that includes the Company, but only while such corporation is in such
controlled group.
ARTICLE III.
CONTRIBUTIONS TO THE TRUST FUND
Section III.01. Election to Make Deposits. Upon completion of his
qualification requirement under Section 2.01, an Employee may file a written
election for the Company to make Deposits under the Plan. An Employee is not
required to file such election immediately upon completion of his qualifying
period but may, subject to any rules the Administrator may adopt, file the
election at a later date. The election shall be filed with the Administrator
on such form and in the manner the Administrator prescribes. The election
shall be effective as of the Employee's participation date in subsection
2.01(a) and shall continue in effect until suspended or terminated pursuant to
the terms hereof.
Section III.02. Amount and Payment of Participant Deposits. (a)
Amount: At the time of his election under Section 3.01 hereof, the Employee
shall select the rate of his Deposits, based on a percentage of his
Compensation. Deposits shall commence with the payroll period which commences
on or immediately after the Employee's participation date. The Employee may
designate any whole percentage from one percent (1%) through fifteen percent
(15%), but only the first six percent (6%) of Compensation shall be eligible
for a match by Company contributions.
(b) Change in Rate: The rate of a Participant's Deposits shall
remain in effect and may be changed only as of the payroll period which
commences on or immediately after the first day of any quarter (i.e., January
1, April 1, July 1 or October 1) and such other dates as determined by the
Administrator, pursuant to such rules as the Administrator may establish.
Deposits may be suspended entirely at any time by thirty (30) days written
notice to the Administrator.
(c) Payment: Deposits shall be made by the Company through regular
payroll deduction in lieu of payment as Compensation to the Participants.
Deposits so received by the Company shall be remitted to the Trustee as soon
as practicable thereafter.
(d) No Participant shall contribute Deposits in excess of $9,500 in
any calendar year (or such higher amount permitted pursuant to Code Section
402(g)) less the amount of any elective deferrals under all other plans,
contracts or arrangements maintained by the Company. In addition, the Plan is
subject to the limitations of Code Section 401(k) which are incorporated
herein by this reference. Accordingly, the actual deferral percentage for
highly compensated employees as defined in Code Section 414(q) shall not
exceed the greater of:
(i) the actual deferral percentage of the nonhighly
compensated employees multiplied by 1.25, or
(ii) the lesser of (A) the actual deferral percentage of the
nonhighly compensated employees plus two percentage
points, or (B) the actual deferral percentage of the
nonhighly compensated employees multiplied by 2.0,
subject to such other applicable limit as may be prescribed by the Secretary
of the Treasury to prevent the multiple use of this alternative limitation.
In order to ensure the favorable tax treatment of Deposits hereunder pursuant
to Code Section 401(k) or to ensure compliance with Code Section 402(g) or
415, the Administrator in its discretion may prospectively decrease the rate
of Deposits of any Participant at any time and, to the extent permitted by
applicable regulations, may direct the Trustee to refund Deposits to any
Participant. Any excess contributions, determined (i) after application of
the family aggregation rules, any recharacterization of deferrals as after-tax
contributions if applicable and use of qualified nonelective contributions
and/or qualified matching contributions as helpful in the actual deferral
percentage test, and (ii) by leveling the highest deferral ratios until the
test is satisfied, and excess deferrals shall be distributed including
applicable income determined pursuant to applicable regulations, including gap
period income after 1988, together with any applicable matching contribution.
Such distributions shall be made during the Plan Year following the year the
excess contributions were made, and the amount shall be determined based on
the respective portions attributable to each highly compensated employee as
defined in Code Section 414(q) and based on compensation as defined in Code
Section 415(c)(3). Testing hereunder shall be done separately for nonunion
Employees and each group of Employees represented by a collective bargaining
unit.
Section III.03. Company Matching Contributions. (a) Subject to the
Company's right to amend or terminate the Plan as herein provided, the Company
shall contribute to the Trust Fund such amount from time to time as it
determines. Such contributions are not intended to be nor shall they be
treated as part of a "cash or deferred arrangement" under Section 401(k) of
the Code.
(b) The Plan is subject to the limitations of Code Section 401(m)
which are incorporated herein by this reference. Accordingly, the actual
contribution percentage of employer contributions for highly compensated
employees as defined in Code Section 414(q) shall not exceed the greater of:
(i) the actual contribution percentage of the nonhighly
compensated employees multiplied by 1.25, or
(ii) the lesser of (A) the actual contribution percentage of
the nonhighly compensated employees plus two percentage
points, or (B) the actual contribution percentage of the
nonhighly compensated employees multiplied by 2.0,
subject to such other applicable limit as may be prescribed by the Secretary
of the Treasury to prevent the multiple use of this alternative limitation.
In order to ensure compliance with Code Section 401(m), any excess aggregate
contributions, determined (i) after application of the family aggregation
rules, any recharacterization of deferrals as after-tax contributions if
applicable and use of qualified nonelective contributions and/or qualified
matching contributions as helpful in the actual deferral percentage test, and
(ii) by leveling the highest contribution ratios until the test is satisfied,
shall be distributed if vested or forfeited if forfeitable, including
applicable income determined pursuant to applicable regulations, including gap
period income after 1988, together with any applicable matching contribution.
Such distributions shall be made during the plan year following the year the
excess aggregate contributions were made, and the amount shall be determined
based on the respective portions attributable to each highly compensated
employee as defined in Code Section 414(q) and based on compensation as
defined in Code Section 415(c)(3). Testing hereunder shall be done separately
for nonunion Employees and each group of Employees represented by a collective
bargaining unit.
Section III.04. No Liability for Future Company Contributions. The
benefits under the Plan shall be only such as can be provided by the assets of
the Trust Fund, and there shall be no liability or obligation to make future
profit sharing contributions hereunder or to make any further contributions in
the event of termination of the Plan.
Section III.05 Time Period for Payment of Company Contributions.
The Company's contributions for any Plan Year shall be paid to the Trustee not
later than the time prescribed by law, including any extensions thereof, for
filing the Company's federal income tax return with respect to such year.
ARTICLE IV.
INVESTMENTS
Section IV.01. Direction of Investment. (a) Each Participant shall
direct, in the manner the Administrator prescribes, the percentage of
Deposits and allocable share of Company contributions which shall be invested
in each fund described in Section 4.03 hereof. A Participant who is a former
Employee or a Beneficiary, other than the deceased Participant's spouse, may
not direct the investment of his account. Such account shall remain in the
funds in which it was invested as of the date of the Participant's termination
of employment or date of death, whichever is applicable.
(b) In the event a Participant fails to direct investment of any
part of the account, such amount shall be invested on the Participant's behalf
in the Balanced Fund described in Section 4.03(a)(i) hereof.
(c) A Participant's direction of investment may be changed as of
the first day of any quarter (i.e., January 1, April 1, July 1 or October 1),
and such other dates as determined by the Administrator, pursuant to such
rules as the Administrator may establish. The election of investments
designates the percentage of future contributions to be allocated to a
particular fund. No reallocation shall be made due to differences in
investment results between various funds except as provided in Section 4.02
hereof.
Section IV.02. Reallocation of Accounts. Each Participant may
direct the Trustee, in the manner the Administrator prescribes, to reallocate
the Participant's accounts as of the first day of any quarter (i.e., January
1, April 1, July 1 or October 1), and such other dates as determined by the
Administrator, pursuant to such rules as the Administrator may establish.
Except to the extent permitted by the Administrator, no Participant's
direction to the Trustee for reallocation of the Participant's account may
include a reallocation to the Xxxx Company Stock Fund. Such direction may
include a reallocation out of the Xxxx Company Stock Fund.
Section IV.03. Description of Funds.
(a) There shall be at least four (4) investment funds with the
investment characteristics as determined by the Investment Manager.
(b) Additional funds may be established in the discretion of the
Investment Manager, with such titles and investment characteristics as shall
be determined by the Investment Manager, and communicated to Participants.
Any fund or any additional fund may be eliminated in the discretion of the
Investment Manager after notice to Participants and reallocation of such
amounts to remaining funds.
(c) Pending investment in securities of a character described for
the fund, any part of a fund may be invested in savings accounts or other
deposits with a bank, commercial paper or other short-term securities,
including any common funds of the Trustee utilizing similar investments but
excluding any securities of the Company.
(d) Each Participant's Deposits and allocable share of Company
contributions shall be invested in the various funds as directed by the
Participant pursuant to Sections 4.01 and 4.02 hereof.
Section IV.04. Funding Policy. The funding policy for the Plan is that
Deposits and Company contributions shall be managed in a manner consistent
with ERISA and the general investment objectives for the applicable funds and
for the purpose of defraying the reasonable expenses of administering the
Plan. The Administrator shall have primary responsibility for carrying out
the funding policy, and in addition to its specific responsibilities set forth
elsewhere in the Plan, shall establish and communicate to the Trustee and/or
other Investment Manager the general investment policy and objectives for the
funds designated pursuant to Section 4.03 hereof.
ARTICLE V.
PARTICIPANT ACCOUNTS
Section V.01. Participant Accounts. The Trustee shall establish and
maintain an account in the name of each Participant for his allocated share of
Company contributions and Participant Deposits. As soon as practicable
following each Plan Year, the Trustee shall prepare for each Participant an
annual statement reflecting the status of the Participant's account as of the
end of the Plan Year.
Section V.02. Allocation of Participant Deposits. As of each December 31
and such other dates as determined by the Administrator, the Trustee shall
allocate each Participant's Deposits for the payroll deduction periods since
the last Deposit applicable Participant's account.
Section V.03. Allocation of Company Matching Contributions. As of each
December 31 and such other dates as determined by the Administrator, the
Trustee shall allocate the Company's matching contribution, if any, and any
allocable forfeitures under Section 5.04 hereof among the Participants on a
pro rata basis with respect to Participant Deposits for the applicable period,
up to a maximum Deposit of six percent (6%) of Compensation for such period.
Notwithstanding the foregoing, Participants who are employed in West Bend,
Wisconsin, represented by a collective bargaining unit shall not be eligible
for any Company matching contributions.
Section V.04. Disposition of Forfeitures. The Trustee shall establish a
special account known as the "Suspense Account" and shall enter into such
account amounts as are forfeited by any former Participant under Section 6.01
hereof. Amounts in the Suspense Account shall be allocated with the Company
matching contribution pursuant to Section 5.03 hereof as soon as practicable.
Section V.05. Allocation of Changes in Value. As of each December 31
and such other dates as determined by the Administrator, the Trustee shall
value each investment fund under Section 4.03 hereof and proportionately
adjust each Participant's account invested in such fund to reflect the effect
of income received, any change in fair market value (whether realized or
unrealized), expenses and all other transactions during the applicable period
respecting such fund.
Section V.06. Maximum Allocation Limitations. The Plan is subject to
the limitations on benefits and contributions imposed by Code Section 415
which are incorporated herein by this reference. The limitation year shall be
the Plan Year. In the event that there are multiple plans, and the sum of the
defined benefit plan fraction and the defined contribution plan fraction, as
defined in Code Section 415, exceeds applicable limits, then such Participants
benefit under the defined benefit plan shall be reduced until such limits are
satisfied. If, notwithstanding the foregoing provisions of this section, the
limitations of Code Section 415 are exceeded as a result of a reasonable error
in estimating a Participant's compensation, a reasonable error in estimating
the amount of Participant's Deposits that a Participant may elect under the
limits of Code section 415, the allocation of forfeitures, or such other facts
and circumstances as the commissioner of the Internal Revenue Service may
prescribe, there shall be deducted from the Participant's account and returned
to the Participant such portion of the Participant's Deposits, together with
earnings thereon, as may be necessary to satisfy Code Section 415. If the
requirements are still not satisfied, there shall be deducted from the
Participant's account all or a portion of the employer contributions for such
limitation year as may be necessary to comply with Code Section 415 which
amounts shall be reallocated among other eligible Participants to the extent
that such additional allocation would not exceed the Code Section 415 limits
with respect to such other Participants. Any amounts which cannot be
allocated or reallocated due to limitations shall be credited to a suspense
account subject to the following conditions: (i) amounts in the suspense
account shall be allocated as a forfeiture among all eligible Participants
hereunder at such time, including termination of the Plan or complete
discontinuance of company contributions, as the foregoing limitations permit,
(ii) no investment gains or losses shall be allocated to the suspense account,
(iii) no further company contributions shall be permitted until the foregoing
limitations permit their allocation to Participant's accounts, and (iv) upon
termination of the Plan any unallocated amounts in the suspense account shall
revert to the Company.
ARTICLE VI.
BENEFITS
Section VI.01. Eligibility for Benefits and Vesting. (a) A Participant
shall be fully vested and entitled pursuant to Section 6.03 hereof to receive
upon termination of employment the total amount credited to his account if he:
(i) attains age sixty-five (65);
(ii) terminates employment under circumstances eligible for early
retirement under a Company-sponsored, qualified defined benefit
plan in which the Participant is covered;
(iii) terminates employment on account of Total and Permanent
Disability; or
(iv) incurs a layoff without recall which results in his termination
of employment pursuant to Company policy.
If a Participant's employment is terminated under any other circumstances
(except by reason of death which is provided for in Section 6.02 hereof), he
shall be entitled pursuant to Section 6.03 hereof to receive the entire
balance of the account attributable to his Deposits, plus that percentage of
the balance in his account attributable to Company contributions which
represents his vested interest determined in accordance with the following
table, and the remainder of his account balance attributable to Company
contributions shall be subject to forfeiture pursuant to subsection (b) below.
Percentage of Account
Balance Attributable
to Company Contributions
Years of Vesting Service Representing Vested Interest
Less than 1 0%
1 20%
2 40%
3 60%
4 80%
5 or more 100%
(b) Any amounts in a Participant's account which are not payable
under subsection (a) above when his employment with the Company is severed
shall remain in such account and shall continue to share in allocations under
Section 5.05 hereof until such former Participant incurs a six-year break in
service as defined in Section 2.04 hereof, whereupon they shall be forfeited
and administered pursuant to Section 5.04 hereof. Notwithstanding the
foregoing, if a Participant whose employment with the Company terminates prior
to his becoming one hundred percent (100%) vested in the portion of his
account balance attributable to Company contributions receives a distribution
or distributions of his entire vested interest in his account, such
Participant's nonvested interest in the Company contributions credited to his
account shall be forfeited; provided, however, that if such Participant is
reemployed prior to incurring a six-year break in service, any forfeited
amounts shall be reinstated from current forfeitures if available or a special
Company contribution. Any amounts that are reinstated pursuant to the
previous sentence shall continue to vest according to the schedule in
subsection (a) above taking into consideration any distributed amount. In any
such event, the Participant's vested portion of his remaining account shall
not be less than an amount "X" determined by the formula X = P(AB+D)-D, where
P is the vested percentage at the relevant time, AB is the account balance at
the relevant time, and D is the amount of the distribution. A Participant
whose entire vested interest in his account has been distributed or who has no
vested interest shall be deemed cashed out of the Plan.
(c) Benefits payable in installments to a former Participant shall
be suspended upon his reemployment by the Company. Any undistributed amount
shall be maintained in his account and shall continue to share in allocations
under Section 5.05 hereof until he again terminates his employment with the
Company.
Section VI.02. Death. Upon the death of a Participant before his
termination of employment with the Company, the total amount then credited to
his account shall be fully vested and payable to the Participant's
Beneficiary. Upon the death of a Participant after his termination of
employment, the vested portion of his account shall be payable to the
Participant's Beneficiary.
Section VI.03. Form and Time of Payment. (a) All amounts payable
to a Participant who terminates employment with the Company on account of
Total and Permanent Disability or after attainment of age sixty-five (65)
shall be paid as the Participant shall determine in one of the following ways:
(i) in lump sum; or
(ii) in substantially equivalent installments over a period
determined by the Participant not to exceed up to ten (10)
years.
In any case where the Participant has determined payment to be on an
installment basis, payment of all or any portion of the unpaid balance may be
accelerated in the Participant's sole discretion.
(b) All amounts payable to a Beneficiary shall be paid as the
Beneficiary shall determine in one of the following ways:
(i) in lump sum; or
(ii) in substantially equivalent installments over a period
determined by the Beneficiary not exceeding five (5) years
from the Participant's death; provided, however, that if
payment to the Participant has begun in installments prior
to his death, the balance of his account shall be
distributed at least as rapidly as that method selected
prior to his death.
(c) All amounts not payable pursuant to subsection (a) or (b) above
shall be paid in lump sum.
(d) Payment, under whichever method is determined, shall commence
at such time as the particular Participant or Beneficiary involved shall
determine. Notwithstanding the foregoing,
(i) except with respect to death benefits payable to a
nonspouse Beneficiary, no lump sum cash distribution
shall be made without the consent of the Participant
or deceased Participant's spouse, to the extent
required by law, where the nonforfeitable portion of
such Participant's or spouse's, in case of the
Participant's death, account exceeds, or has ever
exceeded, $3,500; but
(ii) benefits shall not commence later than sixty (60)
days after the end of the Plan Year in which the
Participant attains or would have attained, in the
case of death benefits payable to a deceased
Participant's spouse, age sixty-five (65) or incurs a
termination of employment, whichever shall last
occur; but
(iii) notwithstanding the foregoing, effective April 1,
1990, benefits payable to a Participant shall be paid
or commenced no later than the April 1 following the
calendar year in which the Participant attains age
seventy and one-half (70-1/2), even if the
Participant is still employed; with respect to
benefits payable to a deceased Participant's spouse,
benefits shall be paid or commenced no later than the
later of (A) December 31 of the calendar year
immediately following the calendar year in which the
Participant died and (B) December 31 of the calendar
year in which the Participant would have attained age
seventy and one-half (70-1/2).
(e) For purposes of any distribution or withdrawal pursuant to this
Article, the value of the Participant's account balances shall be determined
as of the end of any quarter (i.e. March 31, June 30, September 30 or December
31) coincident or immediately following the date on which the Trustee receives
the direction from the Administrator to make such payment. At the election of
the Participant or deceased Participant's spouse, the direction to the Trustee
shall include a direction to pay a percentage of the anticipated balance, not
in excess of eighty percent (80%), prior to the applicable end of any quarter
(i.e. March 31, June 30, September 30 or December 31), with a final payment
after the valuation for the end of any quarter (i.e. March 31, June 30,
September 30 or December 31) has been completed; provided however, that if the
Participant or spouse makes such an election, the Participant or spouse shall
pay all costs incurred to effect the early valuation necessitated by his
election. Notwithstanding the foregoing provisions of this section, after the
change to a daily valuation system, for purposes of any distribution or
withdrawal pursuant to this Article, the value of the Participant's account
balances shall be determined as of the business day immediately preceding the
date of the distribution.
(f) The provisions of the Plan are intended to comply with Code
Section 401(a)(9) which prescribes certain rules regarding minimum
distributions and requires that death benefits be incidental to retirement
benefits. All distributions under the Plan shall be made in conformance with
Section 401(a)(9) and the regulations thereunder which are incorporated herein
by reference. The provisions of the Plan governing distributions are intended
to apply in lieu of any default provisions prescribed in regulations;
provided, however, that Code Section 401(a)(9) and the regulations thereunder
override any Plan provisions inconsistent with such Code Section and
regulations.
Section VI.04. Payments to Minor or Incompetent Person. In the
event that any amount is payable under the Plan to any person who is a minor
or is deemed by the Administrator to be incompetent, either mentally or
physically, or for any other reason incapable of receiving such payment, the
Administrator may, in its sole discretion, make such payment for the benefit
of such person in any of the following ways that the Administrator may select:
(i) to such person's legal representative appointed by proceedings
satisfactory to the Administrator; (ii) directly to such person even though he
is not then able to exercise control over such payment; and/or (iii) to any
custodian under the Uniform Gifts to Minors Act or similar statutes or
guardian of such person or of his property with whom such person is making his
home. The Administrator shall not be required to see to the proper
application of any such payment made for such person's benefit pursuant to the
provisions of this Section, and any such payment shall satisfy in full such
person's entitlement to that payment.
Section VI.05. Direct Transfer of Eligible Rollover Distributions.
(a) This section applies to distributions made on or after January
1, 1993. Notwithstanding any provision of the Plan to the contrary that would
otherwise limit a distributee's election under this section, a distributee may
elect, at the time and in the
manner prescribed by the Administrator, to have any portion of an eligible
rollover distribution paid directly to an eligible retirement plan specified
by the distributee in a direct rollover as such terms are defined herein.
(b) An eligible rollover distribution is any distribution of all or
any portion of the balance to the credit of the distributee, except that an
eligible rollover distribution does not include: any distribution that is one
of a series of substantially equal periodic payments (not less frequently than
annually) made for the life (or life expectancy) of the distributee or the
joint lives (or joint life expectancies) of the distributee and the
distributee's designated beneficiary, or for a specified period of ten years
or more; any distribution to the extent such distribution is required under
Section 401(a) (9) of the Code; and the portion of any distribution that is
not includible in gross income (determined without regard to the exclusion for
net unrealized appreciation with respect to employer securities).
(c) An eligible retirement plan is an individual retirement account
described in Section 408(a) of the Code, an individual retirement annuity
described in Section 408(b) of the Code, an annuity plan described in Section
403(a) of the Code, or a qualified trust described in Section 401(a) of the
Code, that accepts the distributee's eligible rollover distribution. However,
in the case of an eligible rollover distribution to the surviving spouse, an
eligible retirement plan is an individual retirement account or individual
retirement annuity.
(d) A distributee includes an employee or former employee. In
addition, the employee's or former employee's surviving spouse and the
employee's or former employee's spouse or former spouse who is the alternate
payee under a qualified domestic relations order, as defined in Section 414(p)
of the Code, are distributees with regard to the interest of the spouse or
former spouse.
(e) A direct rollover is a payment by the Plan to the eligible
retirement plan specified by the distributee.
Section VI.06. Withdrawals. (a) Upon a showing of substantial
hardship, a Participant may withdraw any portion of the balance in his account
which is attributable to his Participant Deposits upon written request to and
approval of the Administrator. For purposes of this Section, substantial
hardship shall mean:
(i) unreimbursed medical expenses described in Code
Section 213(d) incurred by the Participant, the
Participant's spouse or any dependents of the
Participant (as defined in Code Section 152) or
necessary for these individuals to obtain medical
care;
(ii) costs directly related to the purchase (excluding
mortgagepayments) ofa principalresidence for
the Participant;
(iii) payment of tuition and related educational fees for
the next 12 months of post-secondary education for
the Participant or the Participant's spouse, children
or dependents; or
(iv) payments necessary to prevent the eviction of the
Participant from his principal residence or
foreclosure on the mortgage of the Participant's
principal residence.
The hardship withdrawal (i) shall be limited to the amount of the
immediate and heavy financial need, (ii) including to the extent permitted by
rules established by the Administrator any amounts necessary to pay any
federal, state or local income taxes or penalties reasonably anticipated to
result from the withdrawal. (iii) shall be made only after the Participant
takes all permitted loans and distributions hereunder and pursuant to any
other plan maintained by the Employers and (iv) shall not include any net
earnings credited after December 31, 1988 to the balance in the Participant's
account derived from Deposits.
Any Participant who makes a withdrawal under this Section, shall
have his Deposits and any other elective contributions or employee
contributions under this Plan or any other plan maintained by the Employer
(both qualified and nonqualified) automatically suspended for a period of
twelve (12) months following such withdrawal. The amount which such a
Participant may contribute as Deposits for the calendar year following such
withdrawal shall not exceed the amount described in Section 402(g) for such
year, reduced by the amount of such Participant's actual Deposits for the
calendar year in which the withdrawal occurred.
(b) After attainment of age fifty-nine and one-half (59-1/2), a
Participant may withdraw any portion of the balance in his account which is
attributable to his Participant Deposits upon written request to the
Administrator. No more than two (2) such withdrawals may be made by a
Participant during any twelve (12) month period.
Section VI.07. Erroneous Overpayments. In the event any payments
hereunder to a Participant, former Participant, surviving spouse or any other
Beneficiary hereunder exceed the amounts to which such person was entitled,
the Administrator may withhold or reduce subsequent payments, or may take such
other action as it deems necessary or appropriate.
Section VI.08. Xxxx Company Common Stock.
(a) A Participant may direct the voting at each annual meeting and
at each special meeting of the stockholders of Xxxx Company of that number of
whole shares of Xxxx Company Common Stock attributable to his balance in Xxxx
Company Stock Fund, as of the valuation date preceding the record date for
such meeting. Each such Participant will be provided with copies of any
pertinent material together with a request for the Participant's confidential
instructions as to how such shares are to be voted. The Trustee shall vote
such shares in accordance with such instructions. Any shares of Xxxx Company
Common Stock for which the Trustee has not received instructions shall not be
voted.
(b) Participant may direct the Trustee with respect to the exercise
of tender offer rights with respect to that number of whole and fractional
shares of Xxxx Company Common Stock attributable to his balance in the Xxxx
Company Stock Fund as of the valuation date preceding the applicable record
date. Each Participant shall be provided with copies of any pertinent
material distributed to shareholders generally, in addition to a request for
the Participant's instructions. The Trustee shall act in accordance with the
directions received from the Participants. Any shares of Xxxx Company Common
Stock for which the Trustee has not received instructions shall not be
tendered. The proceeds of any shares of Xxxx Company Common Stock tendered in
accordance with this Section shall be credited to the investment fund or funds
elected by the Participant pursuant to rules established by the Administrator.
(c) The Trustee shall be responsible for ensuring the
confidentiality of a Participant's instructions under this Section to the
extent reasonably possible.
ARTICLE VII.
PLAN ADMINISTRATION
Section VII.01. Appointment of Administrator. The Plan shall be
administered by an individual, or a committee of individuals appointed by the
Board and serving at its pleasure. An Administrator position may, but need
not, be filled by an officer, director or employee of the Company. Any
vacancy in an Administrator position, whether caused by death, resignation,
removal or other cause, shall be filled by the Board and the President of the
Company shall act as Administrator until such vacancy is filled. If the
Administrator is a committee, such vacancy shall not affect the
Administrator's authority to carry out its duties and responsibilities under
the Plan. Also, if the Administrator is a committee, it may select from its
committee members a chairman and such other officers as it deems appropriate,
and Administrator action may be taken on vote of at least a majority of the
committee members present at any meeting or upon unanimous written consent of
all members without a meeting. Such Administrator meetings shall be scheduled
to be held at least annually and minutes of such meetings shall be kept. All
actions of the Administrator shall be recorded in such minutes or other
appropriate written form. The Administrator may establish such other
procedures and operating rules as it deems appropriate. Any party serving in
an Administrator position may serve in similar capacities under other employee
retirement and welfare benefit plans established and maintained by the
Company. The Administrator shall be deemed the Plan's administrator for all
purposes of ERISA.
Section VII.02. Responsibility and Authority of the Administrator.
The Administrator shall have and exercise all discretionary and other
authority to control and manage the operation and administration of the Plan
as it may be amended by the Board from time to time, except such authority as
is specifically allocated otherwise by or under the terms hereof. Without
limiting the foregoing and in addition to the authority and duties specified
elsewhere herein, the Administrator shall have exclusive authority to:
(a) interpret and apply all provisions hereof, including without
limitation, the power to determine who is a Participant in the Plan, and
the amount of Vesting Service and Compensation to be recognized for each
such Participant;
(b) formulate, issue and apply rules and regulations, which are
consistent with the terms and provisions hereof and the requirements of
applicable law;
(c) make appropriate determinations and calculations and direct the
Trustee to pay benefits accordingly;
(d) prescribe and require the use of appropriate forms;
(e) prepare all reports which may be required by law;
(f) determine the existence of Total and Permanent Disability and,
in this connection, to require any Participant to submit to a physical
examination by a licensed physician, in accordance with uniform rules and
procedures consistently applied to similarly situated individuals;
(g) approve or deny all applications under Article VI hereof and
direct the Trustee as to the timing of any distribution;
(h) transmit to the Trustee the investment elections of
Participants pursuant to Article IV hereof; and
(i) appoint any Investment Managers or otherwise direct investments
pursuant to Section 9.02 hereof.
Section VII.03. Use of Professional Services. The Administrator may
engage the services of and/or consult with any legal counsel, independent
qualified public accountant or other persons as may be deemed appropriate.
Such persons may be employed for the purpose of rendering advice to the
Administrator concerning the Administrator's responsibilities hereunder and
may be persons who render services to the Company and/or the Trustee. In any
case in which such services are utilized, the Administrator shall retain
exclusive discretionary authority and control over the management and
administration of the Plan.
Section VII.04. Fees and Expenses. No employee of the Company shall
receive compensation for services rendered in an Administrator capacity but
shall be reimbursed for all reasonable expenses incurred in that capacity.
Any other person or entity serving in an Administrator capacity shall be
entitled to such reasonable compensation therefor as may be mutually agreed
upon with the Company. Where services are utilized as provided in Section
7.03 hereof, the Administrator shall review and approve fees and other costs
for those services. Such fees and costs and any other expenses incurred in
the administration of the Plan and Trust Fund shall be paid out of the
principal or income of the Trust Fund unless voluntarily paid by the Company.
Section VII.05. Delegation of Authority and Responsibility. The
Administrator may direct other employees to perform duties and functions
relating to the administration of the Plan under the Administrator's
supervision. It is expressly provided, however, that in any such case, the
Administrator retains full and exclusive authority and responsibility for and
respecting any such activities by other employees, and nothing contained in
this Section 7.05 shall be construed to confer upon such other employees any
discretionary authority or control in and respecting the management and
administration of the Plan.
Section VII.06. Requirement to Furnish Information and to Use
Administrator's Forms. Each person entitled to benefits under the Plan shall
furnish to the Administrator such evidence, dates or information as the
Administrator considers necessary or desirable in order to properly administer
the Plan. Any designation of Beneficiary, benefit application, notification
or other writing to be submitted hereunder to the Administrator must be filed
pursuant to the procedure and on the appropriate form prescribed, and its
receipt acknowledged by the Administrator in order to be valid and effective.
Section VII.07. Claims Procedure. (a) A Participant or Beneficiary
who believes that he is then entitled to benefits hereunder in an amount
greater than he is receiving or has received, may file a claim for such
benefits by writing directly to the Administrator. Every claim which is
properly filed shall be decided and answered in writing within ninety (90)
days (or one hundred eighty (180) days if additional time is needed and the
claimant is so notified prior to the commencement of the extension) of its
receipt by the Administrator, stating whether the claim is granted or denied.
If the claim is wholly or partially denied, the specific reasons for denial
and reference to the pertinent Plan provisions shall be set forth in a written
notice to the claimant. Such notice shall also describe any information
necessary for the claimant to perfect an appeal and an explanation of the
Plan's claims appeal procedure as set forth in subsection (b) below.
(b) Within sixty (60) days of notice that a claim is denied, the
claimant may file a written appeal to the Administrator, including any
comments, statements or documents the claimant may wish to provide. Every
appeal shall be decided and answered within sixty (60) days (or one hundred
twenty (120) days if additional time is needed and the claimant is so notified
prior to the commencement of the extension) of its receipt by the
Administrator. If a Committee is serving as Administrator, the appeal shall
be considered and decided by the entire body at its next regularly scheduled
meeting occurring at least thirty (30) days after the appeal is timely filed
unless an extension of time is required to process the appeal, in which case a
written notice thereof shall be given to the claimant prior to the start of
such extension which shall not go beyond the third such regularly scheduled
meeting occurring after such filing. In the event the claim is denied upon
appeal, the specific reasons for denial and reference to the pertinent Plan
provisions shall be set forth in a written decision which shall be sent to the
claimant. The Administrator shall comply with any reasonable request from a
claimant for documents or information relevant to his claim prior to his
filing an appeal. The Administrator shall have discretionary authority to
determine eligibility for benefits and to construe the terms of the Plan; any
such determination or construction shall be final and binding on all parties
unless arbitrary and capricious.
Section VII.08. Agent for Service of Process. The Administrator is
designated as the agent for service of legal process with respect to all
matters pertaining to the Plan and the Trust Fund.
ARTICLE VIII.
TRUSTEE
Section VIII.01. Successor Trustee. Any Trustee may be removed by
action of the Board at any time, with or without cause, upon thirty (30) days'
written notice. Any Trustee may resign at any time upon thirty (30) days'
written notice to the Company. Upon such removal or resignation of a Trustee
the Board may appoint or designate a successor trustee or trustees and all the
monies and other property then constituting the Trust Fund shall be assigned,
transferred and paid over to such successor trustee or trustees.
Section VIII.02. General Powers. Except as otherwise limited by
Article IV and otherwise herein, in addition to any powers or authority
otherwise granted to the Trustee hereunder, the Trustee is authorized and
empowered:
(a) to act as complete and absolute owner of all assets in the
Trust Fund;
(b) to sell, exchange, convey, transfer or dispose of, or to grant
options with respect to, any asset in the Trust Fund and to apply the
proceeds of any such transaction in any manner consistent with the
purposes of the Trust Fund, including any loans authorized pursuant to
Section 6.06 hereof;
(c) to borrow or raise monies for the purposes of the Trust Fund in
such amount and upon such terms and conditions as the Trustee in its
discretion may deem advisable;
(d) to make, execute, acknowledge and deliver any and all
assignments, documents of transfer or conveyance and any and all other
instruments or documents that may be necessary or appropriate to carry
out the powers herein granted;
(e) to cause any asset in the Trust Fund to be registered in or
transferred to its name as Trustee or the name of its nominee or nominees
or to retain same unregistered or in form permitting transferability by
delivery, but the books and records of the Trustee shall at all times
show that all such assets are part of the Trust Fund;
(f) to execute any option, right or privilege appurtenant to or
respecting any asset of the Trust Fund or any contract with an insurance
company, including the right to vote in person or by proxy as to any
security in the Trust Fund;
(g) to employ such legal counsel, independent qualified public
accountant and other persons as may be deemed necessary for administering
the Trust Fund, which assistants may be those consulted by the Company,
any Investment Manager and/or the Administrator;
(h) to enforce, compromise, settle or abstain from same in its
discretion, any right, obligation or claim, whether asserted by or
against the Trustee and in general to protect in any way the interests of
the Trust Fund;
(i) to do all other acts which the Trustee may deem necessary or
proper and to exercise any and all powers of the Trustee upon such terms
and conditions as is deemed to be for the best interests of the Trust
Fund; and
(j) to employ or appoint investment advisors or managers to manage
any or all of the assets comprising the Trust, including any advisor or
manager which is a member of an affiliated group of which Xxxxxxxx and
Ilsley Trust Company, or any successor trustee, is a member. To
effectuate such appointment, the Trustee shall have the power to execute
any documents as are necessary and to appoint such advisor or manager as
co-fiduciary.
Section VIII.03. Payments from the Trust Fund. The Trustee shall
make payments from the Trust Fund to such persons, and in such manner and
amounts as may be specified in written directions to the Trustee from the
Administrator. Should any such payment be unclaimed, the Trustee shall notify
the Administrator thereof, and shall dispose of same in accordance with the
Administrator's further directions.
Section VIII.04. Trustee Accounting. The Trustee shall keep accurate
and detailed accounts of all investments, receipts and disbursements and other
transactions hereunder, and all accounts, books and records relating thereto
shall be open to inspection and audit at reasonable times by any person or
persons designated by the Administrator or the Company. Within ninety (90)
days following the last day of each Plan Year, or following the close of such
other annual period as may be agreed upon between the Trustee and the Company,
and within ninety (90) days after the removal or resignation of the Trustee,
the Trustee shall file with the Company a written report setting forth all
investments, receipts and disbursements, and other transactions effected by it
during the period ending as of such date or to the date of such removal or
resignation, as the case may be, including a description of all securities and
investments purchased and sold with the cost or net proceeds of such purchases
or sales, and showing all cash, securities and other property held at the end
of such period.
Section VIII.05. Settlement of Trustee Accounts. In case of any
disapproval of any statement of accounts of the Trustee submitted by the
Company in writing within ninety (90) days of receipt of such statement, an
audit of such statement shall be made by an independent certified public
accountant appointed by the Company unless a corrected statement shall have
been rendered to the Company and approved in writing by the Company. Upon
completion of such audit, the inaccuracies in such statement so audited, if
any, shall be corrected to conform to such audit and a corrected statement
shall be delivered by the Trustee to the Company. Any such corrected
statement shall stand approved as the statement of account of the Trustee as
to all matters embraced therein, without further approval. An approved or
corrected statement of account shall constitute an account stated between the
Trustee and the Company as to all matters embraced in such statement, and
shall be binding and conclusive upon all persons interested in the Trust Fund
to the same extent as if the account of the Trustee had been settled and
allowed in a proceeding for judicial settlement of its accounts in any court
of competent jurisdiction, to which all such persons had been made parties;
provided, however, that no such statement of accounts nor the Company's
approval thereof shall be deemed to relieve the Trustee of any liability which
may be imposed upon it for violation of a specific provision of the Code or
ERISA; provided further that nothing contained herein shall be deemed to
deprive the Trustee and/or the Company of the right to have a judicial
settlement of the Trustee's accounts.
Section VIII.06. Reliance on Written Communications. The Trustee
shall be fully protected in relying upon any written notice, certification or
other document or writing received from the Company, the Board, any Investment
Manager and/or the Administrator and believed to be genuine and shall be under
no duty to make an investigation or inquiry as to statements contained in any
such notice, certification or other document or writing, and may accept the
same as conclusive. Except when otherwise expressly provided herein, any
instrument to be delivered or furnished by the Company or the Board to the
Trustee shall be sufficiently executed if executed in the name of the Company
or Board by any appropriate officer of the former and any instrument to be
delivered or furnished by the Administrator to the Trustee shall be
sufficiently executed in the Administrator's name. The Trustee shall be fully
protected in relying upon a resolution of the Board, duly certified by the
Company's secretary or assistant secretary, as to the identity of any party
serving in the Administrator capacity until a subsequent resolution is filed
with the Trustee by the Board. The Company shall furnish to the Trustee the
name and signature of any person serving in the Administrator capacity and
such other person who shall be entitled to act on behalf of the Company in
dealing with the Trustee. Each Investment Manager appointed pursuant to
Section 9.02 hereof shall, from time to time, furnish the Trustee with the
name and specimen signature of any person authorized to direct the Trust on
its behalf under this Agreement. The Trustee shall have the right to request
that all directions and orders from the Investment Manager be in writing and
shall assume no liability hereunder for failure to act pursuant to such
directions and orders unless and until they are received in a form
satisfactory to it.
Section VIII.07. Trustee Fees and Expenses. The Trustee shall be
entitled to reimbursement of any reasonable expenses properly incurred in the
performance of its duties hereunder and any Trustee who is not an employee of
the Company shall be entitled to such reasonable compensation as shall be
mutually agreed upon with the Company. Such compensation and expenses shall
be paid from the Trust Fund unless paid by the Company.
ARTICLE IX.
INVESTMENT OF TRUST FUND
Section IX.01. Trustee Investment of Trust Fund. The Trust Fund
shall be invested and reinvested without distinction between principal and
income in such manner as the Trustee or any Investment Manager appointed
pursuant to Section 9.02 shall determine to be consistent and in accord with
the applicable requirements of ERISA and the Code and the provisions of
Article IV. Subject to the foregoing requirements, such investments and
reinvestments shall not be restricted to those of the character authorized for
fiduciaries under any present or future laws or administrative regulations or
pursuant to any rule of court, nor shall any investments be limited to any
amount or type in relation to the amount or type of investments of the Trust
Fund as a whole. The Trustee may hold all or any part of the Trust Fund in
cash, and shall not be liable for interest on monies so held, notwithstanding
that the Trustee, or any affiliate thereof, may accrue interest on such
uninvested cash. Such cash or cash balances may be deposited with any bank or
similar financial institution, including the Trustee, in savings accounts
earning a reasonable rate of interest. The Trustee may, from time to time,
invest and reinvest in interests in common, pooled, diversified, or
consolidated funds created and maintained by any bank, insurance company or
other financial institution, including the Trustee, for the collective
investment of assets in trusts of employee retirement plans qualified under
the applicable provisions of the Code whereupon, during the effective period
of such investment and reinvestment in such a fund, any instrument governing
such fund shall be deemed to be incorporated in and made a part of this
Agreement as fully and to all intents and purposes as if set forth herein at
length. The Trustee may invest in any registered investment company,
including any such company from which the Trustee, or any affiliate thereof,
receives an investment advisory fee or any other fee.
Section IX.02. Appointment of Investment Manager. The Administrator
may appoint one or more Investment Managers to manage the investment and
reinvestment of all or any portion of the investment funds in Section 4.03.
Any such Investment Manager shall serve at the pleasure of the Administrator.
Each Investment Manager shall acknowledge in writing that it is a
fiduciary with respect to the Plan. To the extent that Investment Managers
have been appointed to manage the investment and reinvestment of any assets of
the Trust Fund, then with respect to such assets, the Trustee shall be charged
with responsibility only to execute with reasonable diligence and care the
instructions of such Investment Manager and the Trustee shall not be liable in
any way for depreciation or loss incurred by reason or in respect of any
investments made or assets held pursuant to such instructions. To the extent
that no Investment Manager is appointed with respect to all or any portion of
an investment fund, the Administrator shall be deemed the Investment Manager.
ARTICLE X.
FIDUCIARIES AND ALLOCATION OF RESPONSIBILITIES
Section X.01. Fiduciaries. The Board, the Administrator, any
Investment Manager and the Trustee shall be deemed to be the only fiduciaries,
named and otherwise, of the Plan and Trust Fund for all purposes of ERISA. No
named fiduciary designated in this Section 10.01 shall be required to give any
bond or other security for the faithful performance of its duties and
responsibilities with respect to the Plan and/or Trust Fund, except as may be
required from time to time under ERISA.
Section X.02. Allocation of Fiduciary Responsibilities. The
fiduciary responsibilities (within the meaning of ERISA) allocated to each
named fiduciary designated in Section 10.01 hereof shall consist of the
responsibilities, duties, authority and discretion of such named fiduciary
which are expressly provided herein and in any related documents. Each such
named fiduciary may obtain the services of such legal, actuarial, accounting
and other assistants as it deems appropriate, any of whom may be assistants
who also render services to any other named fiduciary, the Plan and/or the
Company; provided, however, that where such services are obtained, the named
fiduciary shall not be deemed to have delegated any of its fiduciary
responsibilities to any such assistant but shall retain full and complete
authority over and responsibility for any activities of such assistant. The
Board, Trustee, any Investment Manager, Administrator and any individual
members thereof shall not be responsible for any act or failure to act of any
other one of them except as may be otherwise specifically provided under
ERISA.
Section X.03. General Limitation on Liability. Neither the Board,
the Administrator, the Trustee, any Investment Manager nor any other person or
entity, including the Company and its shareholders, directors and employees,
guarantees the Trust Fund in any manner against loss or depreciation and none
of them shall be jointly or severally liable for any act or failure to act or
for anything whatever in connection with the Plan and the Trust Fund, or the
administration thereof, except and only to the extent of liability imposed
because of a breach of fiduciary responsibility specifically prohibited under
ERISA.
Section X.04. Multiple Fiduciary Capacities. Any person or group
of persons may serve in more than one fiduciary capacity with respect to the
Plan and/or the Trust Fund.
ARTICLE XI.
AMENDMENT AND TERMINATION
Section XI.01. Amendment. The Company shall have the right by
action of the Board to amend this Agreement and/or the Plan at any time and in
any manner consistent with the Code and ERISA; provided, however, that any
amendment which increases the duties or responsibilities of the Trustee shall
be effective only with the Trustee's consent. In addition, the Administrator
may adopt such amendments to the Plan as may be requested by the Internal
Revenue Service in order to comply with the requirements for qualification
under Sections 401(a) and 501(a) of the Code. Any amendment may be
retroactive to the extent permitted by applicable law. Notwithstanding the
foregoing, no amendment to the Plan shall decrease a Participant's accrued
benefit or vested percentage or eliminate an optional form of distribution for
a previously accrued benefit.
Section 11.02. Termination. The Company shall have the right to
terminate the Plan, in whole or in part, by action of the Board at any time
and in such event, upon any other termination or partial termination, or upon
termination due to permanent discontinuance of all Company contributions, the
Trust Fund shall be fully vested and nonforfeitable to the extent of the
termination. Distribution of benefits shall be in the discretion of the
Administrator pursuant to Section 6.03 hereof.
ARTICLE XII.
GENERAL PROVISIONS
Section XII.01. Non-Guarantee of Continued Employment or Other
Benefits. Neither the establishment of the Plan, nor any modification or
amendment thereof, nor the payment of any benefit hereunder shall be construed
as giving any Participant or other person whomsoever any legal or equitable
right against the Company, its individual officers and employees, the Board or
its members, any Investment Manager, the Administrator or any Trustee, or the
right to the payment of any benefits hereunder (unless the same shall be
specifically provided herein) or as giving any employee the right to continue
his employment with the Company or as affecting the Company's right to sever
such employment.
Section XII.02. Mergers, Consolidations and Transfers of Plan
Assets. In the case of any merger, consolidation with, or transfer of assets
or liabilities to any other plan, each Participant must be entitled to receive
a benefit immediately after the merger, consolidation, or transfer (if the
applicable plan were then to terminate) which is equal to or greater than the
benefit he would have been entitled to receive immediately before the merger,
consolidation, or transfer (if the applicable plan were then to terminate).
Section XII.03. Spendthrift Clause. No Participant or Beneficiary
shall have the right to transfer, assign, alienate, anticipate, pledge or
encumber any part of such benefits, nor shall such benefits, or any part of
the Trust Fund from which such benefits are payable, be subject to seizure by
legal process by any creditor of such Participant or Beneficiary. Any attempt
to effect such a diversion or seizure as aforedescribed shall be deemed null
and void for all purposes hereunder to the extent permitted by ERISA and the
Code. Notwithstanding the foregoing, the Trustee may recognize a qualified
domestic relations order with respect to child support, alimony payments or
marital property rights if such order contains sufficient information for the
Administrator to determine that it meets the applicable requirements of
Section 414(p) of the Code. The Administrator shall establish written
procedures concerning the notification of interested parties and the
determination of the validity of such orders; if any such order so directs,
distribution of benefits to the alternate payee may be made at a time not
permitted for distributions to the Participant.
Section XII.04. Exclusive Benefit. Anything in the Plan which might
be construed to the contrary notwithstanding, it shall be impossible at any
time prior to the satisfaction of all liabilities with respect to Participants
and their Beneficiaries under the Plan for any part of the Trust Fund assets
to be used for, or diverted to, purposes other than the exclusive benefit of
such Participants or their Beneficiaries and defraying the reasonable expenses
of administering the Plan and the Trust Fund. In no event shall the Company
receive at any time any amounts from such assets except as provided in Section
5.06 or 12.09 hereof or the event of a mistake of fact pursuant to the
directions of the Administrator within one year after such mistake is made.
Notwithstanding any provision herein to the contrary, employer contributions
hereunder are conditioned upon their deductibility under Code Section 404. To
the extent a deduction is disallowed, contributions may be returned to the
Employer within one year after such disallowance.
Section XII.05. Full Satisfaction of Claims. Any payment or
distribution to any Participant or Beneficiary shall be in full satisfaction
of all claims against the Trust Fund, the Trustee, the Administrator, any
Investment Manager and the Company and shall give rise to no claim or
liability notwithstanding it shall later appear that such payment or
distribution was made under a mistake of fact or law, except as otherwise
specifically provided by the Code or ERISA. No payment shall be made
hereunder which would be in violation of any applicable law or governmental
regulation as determined by the Administrator.
Section XII.06. Indemnification. The Company shall indemnify any
director and/or employee of the Company who acts with respect to the Plan as a
member of the Board, in an Administrator capacity or as a Trustee and shall
hold any such director and/or employee harmless from the consequences of his
acts or conduct in connection with the Plan except to the extent that such
consequences are the result of willful misconduct or bad faith shown on the
part of such director and/or employee.
Section XII.07. Counterparts. This Agreement may be executed in a
number of counterparts, each of which shall be deemed an original, and such
counterparts shall constitute but one and the same instrument. This Agreement
may be sufficiently evidenced by any one counterpart.
Section XII.08. Successors and Assigns. This Agreement and the Plan
herein contained shall be binding upon the successors and assigns of the
Company and the Trustee.
Section XII.09. IRS Approval. Any other provision to the contrary
notwithstanding, the effectiveness of this Agreement is subject to the
condition subsequent of the Company obtaining a determination from the
Internal Revenue Service that the Plan meets the requirements for
qualification contained in Code Section 401(a) and that the Trust Fund is
exempt from tax under Code Section 501(a).
Section XII.10. Top-Heavy Restrictions. (a) Notwithstanding any
provision to the contrary herein, in accordance with Code Section 416, if the
Plan is a top-heavy plan for any Plan Year, then the provisions of this
Section shall be applicable. The Plan is "top-heavy" for a Plan Year if as of
its "determination date" (i.e. the last day of the preceding Plan Year or the
last day of the Plan's first Plan Year, whichever is applicable), the total
present value of the accrued benefits of key employees (as defined in Code
Section 416(i)(1) and applicable regulations) exceeds sixty percent (60%) of
the total present value of the accrued benefits of all employees under the
plan (excluding those of former key employees and employees who have not
performed any services during the preceding five (5) year period) (as such
amounts are computed pursuant to Section 416(g) and applicable regulations
using a five percent (5%) interest assumption and a 1971 GAM mortality
assumption) unless such plan can be aggregated with other plans maintained by
the applicable controlled group in either a permissive or required aggregation
group and such group as a whole is not top-heavy. Any nonproportional
subsidies for early retirement and benefit options are counted assuming
commencement at the age at which they are most valuable. In addition, a plan
is top-heavy if it is part of a required aggregation group which is top-heavy.
Any plan of a controlled group may be included in a permissive aggregation
group as long as together they satisfy Code Section 401(a)(4) and 410
discrimination requirements. Plans of a controlled group which must be
included in a required aggregation group include any plan in which a key
employee participates or participated at any time during the determination
period (regardless of whether the plan has terminated) and any plan which
enables such a plan to meet Code Section 401(a)(4) or 410 discrimination
requirements. The present values of aggregated plans are determined
separately as of each plan's determination date and the results aggregated for
the determination dates which fall in the same calendar year. A "controlled
group" for purposes of this Section includes any group employers aggregated
pursuant to Code Sections 414(b), (c) or (m). The calculation of the present
value shall be done as of a valuation date which for a defined contribution
plan is the determination date and for a defined benefit plan is the date as
of which funding calculations are generally made within the twelve-month
period ending on the determination date. Solely for the purpose of
determining if the Plan, or any other plan included in a required aggregation
group of which this Plan is a part, is top-heavy (within the meaning of
Section 416(g) of the Code) the accrued benefit of an Employee other than a
key employee (within the meaning of Section 416(i)(1) of the Code) shall be
determined under (i) the method, if any, that uniformly applies for accrual
purposes under all plans maintained by the Affiliates, or (ii) if there is no
such method, as if such benefit accrued not more rapidly than the slowest
accrual rate permitted under the fractional accrual rate of Section
411(b)(1)(C) of the Code.
(b) If a defined contribution plan is top-heavy in a Plan Year,
non-key employee participants who have not separated from service at the end
of such Plan Year will receive allocations of employer contributions and
forfeitures at least equal to the lesser of three percent (3%) of compensation
(as defined in Code Section 415) for such year or the percentage of
compensation allocated on behalf of the key employee for whom such percentage
was the highest for such year (including any salary reduction contributions).
If a defined benefit plan is top-heavy in a Plan Year and no defined
contribution plan is maintained, the employer-derived accrued benefit on a
life-only basis commencing at the normal retirement age of each non-key
employee shall be at least equal to a percentage of the highest average
compensation for five consecutive years, excluding any years after such Plan
permanently ceases to be top-heavy, such percentage being the lesser of (i)
twenty percent (20%) or (ii) two percent (2%) times the years of service after
December 31, 1983 in which a Plan Year ends in which the Plan is top-heavy.
If the controlled group maintains both a defined contribution plan and a
defined benefit plan which cover the same non-key employee, such employee will
be entitled to the defined benefit plan minimum and not to the defined
contribution plan minimum.
(c) If the controlled group maintains a defined benefit plan and a
defined contribution plan which both cover one or more of the same key
employees, and if such plans are top-heavy, then the limitation stated in a
separate provision of this Plan with respect to the Code Section 415(e)
maximum benefit limitations shall be amended so that a 1.0 adjustment on the
dollar limitation applies rather than a 1.25 adjustment. This provision shall
not apply if the Plan is not "super top-heavy" and if the minimum benefit
requirements of this Section are met when two percent (2%) is changed to three
percent (3%) and twenty percent (20%) is changed to an amount not greater than
thirty percent (30%) which equals twenty percent (20%) plus one percent (1%)
for each year such plan is top-heavy. A plan is "super top-heavy" if the
ratio referred to in subsection (a) above results in a percentage in excess of
ninety percent (90%) rather than a percentage in excess of sixty percent
(60%).
Section XII.11. Retroactive Application of Certain Plan Provisions.
(a) The following provisions shall apply retroactively from and
after the Plan Year beginning in 1987:
(i) leased employees in Section 1.01(1);
(ii) contribution limitations in Sections 3.02(d), 3.03(b)
and 5.06; and
(iii) top-heavy rules in Section 12.10.
(b) The provision describing the direct transfer of eligible
rollover distributions in Section 6.05 shall apply retroactively from and
after January 1, 1993.
(c) The following provisions shall apply retroactively from and
after January 1, 1994:
(i) The maximum annual compensation considered under the Plan
in Section 1.01(g); and
(ii) The description of substantial hardship in Section
6.06(a).
ARTICLE XIII.
TRUSTEE ACCEPTANCE
Section XIII.01. Date of Acceptance. Effective as of October 1,
1996, the Trustee accepts the Trust hereby amended and restated and agrees to
be bound by all of the terms of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on this 21st day of March, 1997.
XXXX COMPANY
By: Xxxxxxx X. Xxxx
Title: Vice President
Attest: X.X. Xxxxxxx
Title: Vice President and Secretary
[Corporate Seal]
XXXXXXXX AND ILSLEY TRUST COMPANY, TRUSTEE
By: Xxxxxx X. Xxxxxx
Title: Vice President
Attest: Xxxxxxx Du Pre
Title: Vice President
[Corporate Seal]
