EXHIBIT 10.1
THE XXXXXX
XXXX-TERM SAVINGS AND INVESTMENT PLAN
(As Amended and Restated Effective
May 1, 1993)
101
THE XXXXXX
XXXX-TERM SAVINGS AND INVESTMENT PLAN
(As Amended and Restated Effective May 1, 1993)
This Plan was adopted by the Company effective January 1,
1989, and has been amended and restated effective as of May 1, 1993,
except where otherwise provided. The Plan and the related Trust
Agreement will continue to permit Eligible Employees to defer the
Federal income tax on certain portions of their wages as provided by
the Internal Revenue Code and to furnish them with additional security
in the form of retirement and disability benefits. Except as may be
required by ERISA or the Internal Revenue Code, the rights of any
person whose status as an Employee has terminated shall be determined
pursuant to the Plan as in effect on the date such employment status
terminated, unless a subsequently adopted provision of the Plan is
made specifically applicable to such person.
ARTICLE I
DEFINITIONS
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Whenever used herein the following words and phrases shall
have the meanings stated below unless a different meaning is plainly
required by the context:
1.1 "Account" means all or any one of the Savings Account,
Matching Contributions Account, Transfer Account, Xxxxxx Account,
Xxxxxxx Account Anchor Account, Intercraft Account and/or Levolor
Account maintained by the Trustee for an individual Participant,
Surviving Spouse or Beneficiary.
1.2 "Actual Deferral Percentage" for a specified group of
Eligible Employees for a given Plan Year means the average of the
ratios, calculated separately for each Eligible Employee in such
group, of: (a) the aggregate of (i) the Earnings Deferral
Contribution, if any, contributed by the Company on behalf of each
such Eligible Employee for the Plan Year, and (ii) the Supplemental
Contribution, if any, made by an Employer on behalf of each such
Eligible Employee for such Plan Year; to(b) the Eligible Employee's
Earnings for such Plan Year.
1.3 "Adjusted Balance" means the balance in a Participant's
Savings Account, Matching Contributions Account, Transfer Account,
Xxxxxx Account, Xxxxxxx Account, Anchor Account, Intercraft Account or
Levolor Account.
1.4 "Affiliated Employer" means (a) any corporation that is
a member of a controlled group of corporations (as defined in
Section 414(b) of the Code) that includes the Company; (b) any trade
or business (whether or not incorporated) that is under common control
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(as defined in Section 414(c) of the Code) with the Company; (c) any
member of an affiliated service group (as defined in Section 414(m) of
the Code) that includes the Company; and (d) any member of the same
group of associated organizations (as defined in Section 414(o) of the
Code). For purposes of applying the limitations of Section 415 of the
Code referred to in Section 1.29, "Affiliated Employer" is determined
in accordance with Sections 414(b) and (c) of the Code, as modified by
Section 415(h) therein.
1.5 "Anchor Account" means the record of money and assets
held by the Trustee for an individual Participant, Surviving Spouse or
Beneficiary pursuant to the provisions of the Plan, derived from the
account balances of the accounts held under the Anchor Plan as of
December 31, 1988. The Anchor Account shall consist of sub-accounts
corresponding to the various sub-accounts maintained under the Anchor
Plan.
1.6 "Anchor Plan" means the Anchor Hocking Corporation
Savings and Investment Plan, as Amended and Restated Effective
January 1, 1987.
1.7 "Annual Additions" means the total of: (a) Employer
contributions allocated to a Participant's accounts under this Plan
and any Related Plan during any Limitation Year; (b) the amount of
employee contributions made by the Participant under this Plan and any
Related Plan; and (c) forfeitures allocated to a Participant's
accounts under any Related Plan.
1.8 "Beneficiary" means the person, persons, or entity
designated or determined pursuant to the provisions of Section 7.2(b)
of the Plan.
1.9 "Board" means the Board of Directors of the Company.
1.10 "Break in Service" means the period of an Employee's
absence from active employment commencing upon his Severance Date from
the Company, and all Affiliated Employers, and ending (if at all) when
he again performs an Hour of Service within the meaning of Section
1.23(a).
1.11 "Code" means the Internal Revenue Code of 1986, as
amended from time to time. Reference to a section of the Code shall
include that section and any comparable section or sections of any
future legislation that amends, supplements or supersedes said
section.
1.12 "Committee" means the Retirement Committee described in
Section 9.1.
1.13 "Company" means Xxxxxx Operating Company, a Delaware
corporation, or any successor corporation resulting from a merger or
consolidation of the Company or transfer of substantially all of the
assets of the Company, if such successor or transferee shall adopt and
continue the Plan by appropriate corporate action pursuant to
Section 12.3 of the Plan.
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1.14 (a) "Compensation" means a Participant's total
earnings from the Company and all Affiliated Employers paid during a
Plan Year for services rendered, including the regular rate portion of
overtime pay, commissions and any lump sum payments received in lieu
of an increase in such Participant's base pay (as agreed upon by the
Company and any collective bargaining unit during the term of the
applicable collective bargaining agreement), but excluding any
bonuses, the premium rate portion of overtime pay, moving expenses,
automobile expenses, stock options, contributions or benefits under
this Plan or any other pension, profit sharing, insurance,
hospitalization or other plan or policy maintained by any Employer for
the benefit of such Participant, and all other extraordinary and
unusual payments. Notwithstanding the preceding provisions of this
Section 1.14, for purposes of Section 1.29 and Section 6.7
"Compensation" shall have the meaning set forth in Section 1.29, and
for purposes of Article XIV "Compensation" shall have the meaning set
forth in Section 14.2(a). In no event shall the Compensation taken
into account for an Employee under the Plan for any Plan Year exceed
(a) $200,000 (or such greater amount provided pursuant to
Section 401(a)(17) of the Code), in Plan Years commencing on and after
January 1, 1989 and prior to January 1, 1994.
(b) In addition to other applicable limitations set forth in the
Plan and notwithstanding any other provision of the Plan to the
contrary, for Plan Years beginning on or after January 1, 1994, the
annual Compensation of each Participant taken into account under the
Plan shall not exceed the OBRA '93 annual Compensation limit. The
OBRA '93 annual Compensation limit is $150,000, as adjusted by the
Commissioner for increases in the cost of living in accordance with
Section 401(a)(17)(B) of the Code. The cost-of-living adjustment in
effect for a calendar year applies to any period, not exceeding 12
months, over which Compensation is determined (determination period)
beginning in such calendar year. If a determination period consists
of fewer than 12 months, the OBRA '93 annual Compensation limit will
be multiplied by a fraction, the numerator of which is the number of
months in the determination period, and the denominator of which is
12.
(c) For Plan Years beginning on or after January 1, 1994, any
reference in this Plan to the limitation under Section 401(a)(17) of
the Code shall mean the OBRA '93 annual Compensation limit set forth
in this provision.
(d) If Compensation for any prior determination period is taken
into account in determining a Participant's benefits accruing in the
current Plan Year, the Compensation for that prior determination
period is subject to the OBRA '93 annual Compensation limit in effect
for that prior determination period. For this purpose, for
determination periods beginning before the first day of the first Plan
Year beginning on or after January 1, 1994, the OBRA '93 annual
Compensation limit is $150,000.
1.15 (a) "Earnings" means a Participant's Compensation paid
during a Plan Year, increased by (a) the amount subject to any Long-
Term Savings Agreement entered into by the Participant for such Plan
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Year, and (b) the amount contributed on behalf of the Participant to
the Xxxxxx Flexible Benefits Account Plan. In no event shall the
Earnings taken into account for an Employee under the Plan for any
Plan Year exceed (a) $200,000 (or such greater amount provided
pursuant to Section 401(a)(17) of the Code), in Plan Years commencing
on and after January 1, 1989 and prior to January 1, 1994.
(b) In addition to other applicable limitations set forth in the
Plan and notwithstanding any other provision of the Plan to the
contrary, for Plan Years beginning on or after January 1, 1994, the
annual Earnings of each Participant taken into account under the Plan
shall not exceed the OBRA '93 annual Compensation limit. The OBRA '93
annual Compensation limit is $150,000, as adjusted by the Commissioner
for increases in the cost of living in accordance with Section
401(a)(17)(B) of the Code. The cost-of-living adjustment in effect
for a calendar year applies to any period, not exceeding 12 months,
over which Earnings are determined (determination period) beginning in
such calendar year. If a determination period consists of fewer than
12 months, the OBRA '93 annual Compensation limit will be multiplied
by a fraction, the numerator of which is the number of months in the
determination period, and the denominator of which is 12.
(c) For Plan Years beginning on or after January 1, 1994, any
reference in this Plan to the limitation under Section 401(a)(17) of
the Code shall mean the OBRA '93 annual Compensation limit set forth
in this provision.
(d) If Earnings for any prior determination period are taken
into account in determining a Participant's benefits accruing in the
current Plan Year, the Earnings for that prior determination period
are subject to the OBRA '93 annual Compensation limit in effect for
that prior determination period. For this purpose, for determination
periods beginning before the first day of the first Plan Year
beginning on or after January 1, 1994, the OBRA '93 annual
Compensation limit is $150,000.
1.16 "Earnings Deferral Contributions" means amounts con-
tributed by the Company at the direction of a Participant pursuant to
the provisions of Section 3.1 of the Plan.
1.17 "Eligibility Year of Service" means the twelve (12)
month period, commencing with the date an Employee first performs an
Hour of Service for the Company or an Affiliated Employer, during
which he completes at least 1,000 Hours of Service, or if he does not
complete 1,000 Hours of Service during such twelve (12) month period,
then the first Plan Year ending thereafter in which he does complete
1,000 Hours of Service.
1.18 "Eligible Employee" means any Employee who has met the
eligibility requirements contained in Section 2.1 or 2.2, excluding
any person who is a leased employee pursuant to Section 1.19.
1.19 "Employee" means an individual employed by an Employer
on or after January 1, 1989 and who is in a covered classification of
Employees, as listed on Appendix A hereto; provided that "Employee"
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does not include any individual covered under the terms and conditions
of a collective bargaining agreement to which any Employer is a party,
unless such agreement provides for the participation of such
individual. A person who is not an employee of the Company and who
performs services for an Employer pursuant to an agreement between an
Employer and a leasing organization shall be considered a "leased
employee" after such person has performed such services on a
substantially full-time basis for at least twelve months and if the
services are of a type historically performed by employees in the
business field of such Employer. A person who is considered a leased
employee of an Employer shall not be considered an Employee for
purposes of the Plan other than for purposes of determining the Hours
of Service and Vesting Service a person earns that would be considered
if and when he becomes an Employee other than by reason of being a
leased employee. Notwithstanding the preceding sentence, a leased
employee's Hours of Service and Vesting Service shall not be
considered if the requirements of Section 414(n)(5) of the Code are
satisfied with respect to such person.
1.20 "Employer" means the Company, any Affiliated Employer
listed in Appendix A hereto or any Affiliated Employer that may
hereafter adopt the Plan, pursuant to Section 13.15.
1.21 "ERISA" means Public Law No. 93-406, the Employee
Retirement Income Security Act of 1974, as from time to time amended.
1.22 "Highly Compensated Eligible Employee" means an Eligi-
ble Employee who during the Plan Year or preceding Plan Year:
(a) was at any time a five percent owner of the Company or
an Affiliated Employer;
(b) received compensation from the Company or an Affiliated
Employer in excess of $75,000 (or such greater amount provided by the
Secretary of the Treasury pursuant to Section 414(q) of the Code);
(c) received compensation from the Company or an Affiliated
Employer in excess of $50,000 (or such greater amount provided by the
Secretary of the Treasury pursuant to Section 414(q) of the Code) and
was in the top-paid group of employees for such Plan Year (as defined
in Section 414(q)(4) of the Code); or
(d) was at any time an officer of the Company or an
Affiliated Employer (as defined in Section 414(q)(5) of the Code) and
received compensation from the Company or an Affiliated Employer
greater than 50% of the amount in effect under Section 415(b)(1)(A) of
the Code for such Plan Year.
The provisions of Section 414(q) of the Code shall apply in
determining whether an Eligible Employee is a Highly Compensated
Eligible Employee. The Company may elect, for any Plan Year, to
identify Highly Compensated Eligible Employees based upon only the
current Plan Year to the extent permitted by Section 414(q) of the
Code and regulations issued thereunder.
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1.23 "Hour of Service" means:
(a) each hour for which an Employee is paid or entitled to
payment for the performance of duties for the Company or an Affiliated
Employer on and after the date the Employee is first hired by the
Company or an Affiliated Employer; and
(b) each hour for which an Employee is directly or
indirectly paid by the Company or an Affiliated Employer or is
entitled to payment from the Company or an Affiliated Employer during
which no duties are performed by reason of vacation, holiday, illness,
incapacity (including disability), layoff, jury duty, military duty or
leave of absence (but not in excess of 501 hours in any continuous
period during which no duties are performed), on and after the date
the Employee is first hired by the Company or an Affiliated Employer.
(c) Each Hour of Service for which back pay, irrespective
of mitigation of damages, is either awarded or agreed to by the
Company or an Affiliated Employer shall be included under either
subsection (a) or (b) above as may be appropriate.
Hours of Service shall be credited:
(i) in the case of Hours referred to in subsection (a)
above, for the computation period in which the duties are
performed;
(ii) in the case of Hours referred to in subsection (b)
above and (d) below, for the computation period or periods in
which the period during which no duties are performed occurs; and
(iii) in the case of Hours of Service for which
back pay is awarded or agreed to by the Company or an Affiliated
Employer in subsection (c) above, for the computation period or
periods to which the award or agreement pertains rather than to
the computation period in which the award, agreement or payment
is made.
(d) Solely for purposes of determining an Employee's
eligibility to participate in the Plan under Sections 2.1 and 2.2,
Hours of Service shall include an approved leave of absence granted by
an Employer to the Employee on or after August 5, 1993 pursuant to the
Family and Medical Leave Act, if the Employee returns to work for an
Employer at the end of such leave of absence.
In determining Hours of Service with respect to an Employee
who is employed on other than an hourly-rated basis, such Employee
shall be credited with ten (10) Hours of Service per day for each day,
or forty-five (45) Hours of Service per week for each week, the
Employee would, if hourly-rated, be credited with service pursuant to
subsection (a) above. If an Employee is paid for reasons other than
the performance of duties pursuant to subsection (b) or (d) above:
(i) in the case of a payment made or due which is calculated on the
basis of units of time, an Employee shall be credited with the number
of regularly scheduled working hours included in the units of time on
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the basis of which the payment is calculated; and (ii) an Employee
without a regular work schedule shall be credited with eight (8) Hours
of Service per day (to a maximum of forty (40) Hours of Service per
week) for each day that the Employee is so paid. Hours of Service
shall be calculated in accordance with Department of Labor Regulations
Section 2530.200b-2 or any future legislation or regulation that
amends, supplements or supersedes said section.
1.24 "Investment Fund" or "Fund" means any of the funds
maintained by the Trustee and referred to in Article XI.
1.25 "Limitation Year" means the twelve (12) consecutive
month period to be used in determining the Plan's compliance with Code
Section 415 and the regulations thereunder.
1.26 "Long-Term Savings Agreement" means a written agreement
entered into by a Participant pursuant to the provisions of Section
3.1 of the Plan.
1.27 "Matching Contributions" mean contributions made by an
Employer pursuant to the provisions of Section 4.1 of the Plan.
1.28 "Matching Contributions Account" means the record of
money and assets held by the Trustee for an individual Participant,
Surviving Spouse or Beneficiary pursuant to the provisions of the
Plan, derived from Matching Contributions.
1.29 "Maximum Permissible Amount" means the lesser of: (a)
25% of a Participant's Compensation; or (b) thirty thousand dollars
($30,000)(or, if greater, one-quarter (1/4) of the dollar limitation
in effect pursuant to Section 415(b)(1)(A) of the Code). For purposes
of this Section 1.29 and Section 6.7 Compensation shall mean wages,
salaries, fees for professional services and other amounts received
for personal services actually rendered in the course of employment
with the Company or an Affiliated Employer that is currently
includable in gross income (including, but not limited to commissions
paid salesmen, compensation for services on the basis of a percentage
of profits, tips and bonuses); shall include all compensation actually
paid or made available to a Participant for an entire Limitation Year
(other than amounts subject to the Long-Term Savings Agreement of such
Participant); and shall not include any other items or amounts paid to
or for the benefit of a Participant.
1.30 "Xxxxxx Common Stock" means the common stock of Xxxxxx
Co., a Delaware Corporation.
1.31 "Normal Retirement Date" means the date a Participant
attains age sixty-five (65).
1.32 "Participant" means an Eligible Employee who becomes a
Participant under the provisions of Section 2.3 of the Plan. However,
an Employee who has made a Rollover Contribution pursuant to Section
5.1 of the Plan shall be deemed a Participant for purposes of the Plan
to the extent that the provisions of the Plan apply to the Transfer
Account of such Employee.
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1.33 "Plan" means the XXXXXX XXXX-TERM SAVINGS AND
INVESTMENT PLAN, as Amended and Restated Effective May 1, 1993.
1.34 "Plan Year" means the eight-month period from January
1, 1989 through August 31, 1989; the twelve month period from
September 1, 1989 through August 31, 1990; the four-month period from
September 1, 1990 through December 31, 1990; and, thereafter, the
twelve-month period from January 1 through December 31 of each
calendar year.
1.35 "Related Plan" means any other defined contribution
plan (as defined in Section 415 of the Code) maintained by the Company
or by an Affiliated Employer.
1.36 "Xxxxxx Account" means the record of money and assets
held by the Trustee for an individual Participant, Surviving Spouse or
Beneficiary pursuant to the provisions of the Plan, derived from
account balances of the accounts held under the Xxxxxx Plan as of
December 31, 1991. The Xxxxxx Account shall consist of sub-accounts
corresponding to the various sub-accounts maintained under the Xxxxxx
Plan.
1.37 "Xxxxxx Plan" means the X.X. Xxxxxx Company Profit
Sharing and Savings Master Plan, the Defined Contribution Master Plan
Adoption Agreement Profit Sharing Plan Formula with Code
Section 401(k) Arrangement, and Amendments No. 1 and No. 2 thereto.
1.38 "Rollover Contribution" means an amount received by the
Trustee pursuant to the provisions of Section 5.1 of the Plan. In no
event shall Rollover Contribution include amounts directly transferred
to the Plan from the Anchor Plan, the Xxxxxx Plan or the Xxxxxxx Plan.
1.39 "Xxxxxxx Account" means the record of money and assets
by the Trustee for an individual Participant, Surviving Spouse or
Beneficiary pursuant to the provisions of the Plan, derived from
account balances of the accounts held under the Xxxxxxx Plan as of
December 31, 1992. The Xxxxxxx Account shall consist of sub-accounts
corresponding to the various sub-accounts maintained under the Xxxxxxx
Plan.
1.40 "Xxxxxxx Plan" means the Xxxxxxx Corporation Incentive
Savings Plan, as amended and restated effective December 1, 1987,
including the amendment thereto dated August 1990 and the Second
Amendment thereto dated November 21, 1991.
1.41 "Savings Account" means the record of money and assets
held by the Trustee for an individual Participant, Surviving Spouse or
Beneficiary pursuant to the provisions of the Plan, derived from
Earnings Deferral Contributions and Supplemental Employer
Contributions.
1.42 "Severance Date" means the earlier of:
(a) the date the employment of an employee terminates by
reason of quitting, retirement, death or discharge; or
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(b) the first anniversary of the first date of an absence
from the performance of duties as an Employee (with or without pay)
for any other reason (such as vacation, holidays, sickness,
disability, leave of absence or layoff).
If any Employee who is absent from work because of (i) the
Employee's pregnancy, (ii) the birth of the Employee's child, (iii)
the placement of a child with the Employee in connection with the
Employee's adoption of the child, or (iv) caring for such child
immediately following such birth or placement, shall be absent for
such reason beyond the first anniversary of the first date of absence,
his Severance Date shall be the second anniversary of the first day of
such absence, provided that the Employee furnishes to the Committee
such timely information that the Committee may reasonably require to
establish (A) that the absence from work is for one of the reasons
specified in clauses (i) through (iv), and (B) the number of days for
which there was such an absence. Notwithstanding anything to the
contrary contained herein, in no event shall an Employee who is absent
from work because of one of the reasons set forth in clauses (i)
through (iv) above receive Vesting Service for the period between the
first and second anniversary of the first day of such absence.
1.43 "Supplemental Employer Contribution" means a contribu-
tion made by an Employer pursuant to the provisions of Section 3.4 of
the Plan.
1.44 "Surviving Spouse" means the person to whom a Partici-
pant is married throughout the twelve (12) month period ending on the
date of his death.
1.45 "Transfer Account" means the record of money and assets
held by the Trustee for an individual Participant, Surviving Spouse or
Beneficiary pursuant to the provisions of the Plan, derived from a
Rollover Contribution described in Section 5.1. In no event shall
Transfer Accounts include amounts held in the Anchor Account, the
Xxxxxx Account, the Xxxxxxx Account, the Intercraft Account or the
Levolor Account.
1.46 "Trust" or "Trust Fund" means all money, securities and
other property held under the Trust Agreement for the purposes of the
Plan.
1.47 "Trust Agreement" means the agreement between the
Company and the Trustee governing the administration of the Trust, as
it may be amended from time to time.
1.48 "Trustee" means the corporation or individuals
appointed by the Board to administer the Trust.
1.49 "Valuation Date" means the date of any valuation of the
Trust Fund and underlying Accounts performed by the recordkeeper on
behalf of the Trustee for the Plan, provided that such valuation be
performed at least annually.
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1.50 "Vesting Service" means the aggregate of:
(a) all service of an Employee with the Company or an
Affiliated Employer, counted from the date the Employee is first hired
by the Company or an Affiliated Employer, to his last Severance Date;
(b) for an Employee who was a participant in the Anchor
Plan, all service, if any, of an Employee with Anchor Hocking
Corporation, or any entity that would satisfy the definition of
Affiliated Employer if Anchor Hocking Corporation were the Company,
counted from the date on which such Employee first commenced
employment and ending on December 31, 1988;
(c) for an Employee who was a participant in the Xxxxxx
Plan, all service, if any, of an Employee with X.X. Xxxxxx Company, or
any entity that would satisfy the definition of Affiliated Employer if
X.X. Xxxxxx Company were the Company, counted from the date on which
such Employee first commenced employment and ending on December 31,
1991; and
(d) for an Employee who was a participant in the Xxxxxxx
Plan, all service, if any, of an Employee with Xxxxxxx Corporation, or
any entity that would satisfy the definition of Affiliated Employer if
Xxxxxxx Corporation were the Company, counted from the date on which
such Employee first commenced employment and ending on December 31,
1992; subject, HOWEVER, to the following special rules:
(i) Breaks in Service will be excluded in determining
Vesting Service, except that a Break in Service incurred when an
Employee quits, retires, or is discharged will not be excluded if
the Employee returns to the performance of duties as an Employee
with the Company or an Affiliated Employer prior to the first
anniversary of his absence from the performance of duties;
provided that if such Break in Service commenced while the
Employee was absent from the performance of duties for one of the
reasons described in paragraph (b) of the definition of "Sever-
ance Date," the Break in Service will not be excluded only if it
is incurred, and the Employee returns to the performance of
duties as an Employee with the Company or an Affiliated Employer,
prior to the first anniversary of his absence from the
performance of duties.
(ii) If a Participant's employment under the Anchor Plan
terminated prior to January 1, 1989 and recommences with the
Company or an Affiliated Employer on or after January 1, 1989,
the consequences of his absence from employment shall be
determined under the rules regarding Break in Service contained
in the Plan and not under the terms of the Anchor Plan.
(iii) If a Participant's employment under the Xxxxxx
Plan terminated prior to January 1, 1992 and recommences with the
Company or an Affiliated Employer on or after January 1, 1992,
the consequences of his absence from employment shall be
determined under the rules regarding Break in Service contained
in the Plan and not under the terms of the Xxxxxx Plan.
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(iv) If a Participant's employment under the Xxxxxxx Plan
terminated prior to January 1, 1993 and recommences with the
Company or an Affiliated Employer on or after January 1, 1993,
the consequences of his absence from employment shall be
determined under the rules regarding Break in Service contained
in the Plan and not under the terms of the Xxxxxxx Plan.
(v) If a Participant's employment under an Intercraft
Plan terminated prior to January 1, 1994 and recommences
with the Company or an Affiliated Employer on or after
January 1, 1994, the consequences of his absence from
employment shall be determined under the rules regarding
Break in Service contained in the Plan and not under the
terms of the Intercraft Plan.
(vi) If a Participant's employment under the Levolor
Plan terminated prior to October 1, 1994 and recommences
with the Company or an Affiliated Employer on or after
October 1, 1994, the consequences of his absence from
employment shall be determined under the rules regarding
Break in Service contained in the Plan and not under the
terms of the Levolor Plan.
(vii) Notwithstanding anything to the contrary contained
in the Plan, Vesting Service shall include, to the extent
required by law, a period of time during which an Employee is
absent from the Company and all Affiliated Employers to serve in
the armed forces of the United States, for as long as his
reemployment rights are guaranteed by law, if he returns or
offers to return to work for the Company or an Affiliated
Employer prior to the expiration of such reemployment rights.
(viii) Notwithstanding anything to the contrary in the
Plan, Vesting Service shall include any period of time during
which an Employee is on an approved leave of absence granted by
an Employer to the Employee on or after August 5, 1993 pursuant
to the Family and Medical Leave Act, if the Employee returns to
work for an Employer at the end of such leave of absence.
(e) for an Employee who was a participant in an Intercraft
Plan, all service, if any, of an Employee with Intercraft Corporation,
or any entity that would satisfy the definition of Affiliated Employer
if Intercraft Corporation were the Company, counted from the date on
which the Employee first commenced employment and ending on December
31, 1993.
(f) for an Employee who was a participant in the Levolor
Plan, all service, if any, of an Employee with Levolor Corporation, or
any entity that would satisfy the definition of Affiliated Employer if
Levolor Corporation were the Company, counted from the date on which
the Employee first commenced employment and ending on September 30,
1994.
1.51 "Wage Payment Date" means a date on which an Employee
receives Compensation from an Employer.
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1.52 "Wage Payment Period" means the period of time ending
on a Wage Payment Date for which a Participant is paid Compensation.
1.53 "Intercraft Account" means the record of money and
assets held by the Trustee for an individual Participant, Surviving
Spouse or Beneficiary pursuant to the provisions of the Plan, derived
from account balances of the accounts held under the Intercraft Profit
Sharing Plan and the Intercraft Retirement Program as of December 31,
1993. The Intercraft Account shall consist of sub-accounts
corresponding to the various sub-accounts maintained under the
Intercraft Profit Sharing Plan and the Intercraft Retirement Program.
1.54 "Intercraft Plan" means the Intercraft Company
Employees' Profit Sharing and Variable Investment Plan, as Amended and
Restated Effective January 1, 1989, including amendments thereto (the
"Intercraft Profit Sharing Plan"), and/or the Intercraft Industries
Retirement Program, as Amended and Restated Effective September 1,
1990, including amendments thereto (the "Intercraft Retirement
Program").
1.55 "Levolor Account" means the record of money and assets
held by the Trustee for an individual Participant, Surviving Spouse or
Beneficiary pursuant to the provisions of the Plan, derived from
account balances of the accounts held under the Levolor Plan as of
September 30, 1994. The Levolor Account shall consist of sub-accounts
corresponding to the various sub-accounts maintained under the Levolor
Plan.
1.56 "Levolor Plan" means the Levolor Profit Sharing and
401(k) Plan, as Amended and Restated Effective September 1, 1990,
including amendments thereto.
ARTICLE II
PARTICIPATION
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2.1 ELIGIBILITY REQUIREMENTS. (a) Any Employee who was
an Eligible Employee under the terms of the Plan in effect on
April 30, 1993 shall remain an Eligible Employee.
(b) Every other Employee shall become an Eligible Employee
as of the first day of his first Wage Payment Period of the month
following his completion of an Eligibility Year of Service.
(c) Notwithstanding (b) above, effective as of April 1,
1993, each Employee who is regularly and permanently scheduled to
complete 30 or more hours of work per week for an Employer shall
become an Eligible Employee for purposes of electing Earnings Deferral
Contributions pursuant to Section 3.1 of the Plan as of the first day
of his first Wage Payment Period of the month following his date of
hire.
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(d) Notwithstanding the above, (i) each Employee who was
employed by Intercraft Corporation on December 31, 1993 shall become
an Eligible Employee on January 1, 1994; and (ii) each Employee who
was employed at the Levolor division of the Company on September 30,
1994 shall become an Eligible Employee on October 1, 1994.
2.2 REEMPLOYMENT OF AN ELIGIBLE EMPLOYEE. If an Eligible
Employee shall incur a Break in Service and shall thereafter be
reemployed by an Employer, he shall again become an Eligible Employee
as of his first Wage Payment Period of the month following the date of
his resumption of employment.
2.3 ELECTION TO PARTICIPATE. (a) An Eligible Employee may
become a Participant by executing and filing with the Committee a
Long-Term Savings Agreement, an investment election form and such
other forms as may be required by the Committee, which will be
provided by the Committee.
(b) Each Eligible Employee shall become a Participant for
his first Wage Payment Period of any month designated by him if (i)
such Period begins on or after the date on which he becomes an
Eligible Employee, and (ii) such Eligible Employee executes and files
with the Committee a Long-Term Savings Agreement, an investment
election form in accordance with Section 11.3 of the Plan and any
other forms required by the Committee within a reasonable time, as
prescribed by the Committee, prior to the beginning of such Period.
No application to participate will be effective until all required
documents have been completed by the Eligible Employee and delivered
to the Committee.
ARTICLE III
SALARY DEFERRAL CONTRIBUTIONS
-----------------------------
3.1 EARNINGS DEFERRAL CONTRIBUTIONS. (a) Each Participant
shall elect, by entering into a Long-Term Savings Agreement with his
Employer, to reduce his Earnings from his Employer by a percentage
between one percent (1%) and fifteen percent (15%) (in increments of
one percent (1%), as elected by the Participant). Reductions to a
Participant's Earnings pursuant to his Long-Term Savings Agreement
shall be effected through payroll deductions, commencing with the Wage
Payment Date corresponding to the Wage Payment Period with respect to
which he becomes a Participant pursuant to Section 2.3(b), in accord-
ance with procedures established by the Committee. Long-Term Savings
Agreements shall be subject to the special rules set forth in this
Article III.
(b) Amounts subject to Long-Term Savings Agreements effec-
tive for a given Plan Year shall be reduced proportionately to the
extent that the aggregate of Earnings Deferral Contributions under
this Article III and Matching Contributions under Article IV exceed
the maximum deduction allowable for such Plan Year under Section 404
of the Code. All amounts so reduced, adjusted for earnings, gains and
114
losses allocable thereto, shall be returned to the Employers and
immediately thereafter paid by the Employers directly to the
applicable Participants.
(c) Notwithstanding any provision of the Plan to the
contrary, the elective deferrals (as defined in Section 402(g)(3) of
the Code) of any Participant for any taxable year of the Participant
shall not exceed the amount set forth in Section 402(g) of the Code,
as adjusted by the Secretary of the Treasury pursuant to
Section 402(g)(5) and 415(d) of the Code. Any amount contributed to
the Plan on behalf of a Participant during any Plan Year, pursuant to
the Participant's Long-Term Savings Agreement, in excess of the
limitation set forth in this paragraph, adjusted for earnings, gains
and losses allocable thereto, shall be returned to such Participant
within the time period set forth in Section 402(g)(2) of the Code.
(d) Each Employer shall contribute to the Trust for each
Wage Payment Period an Earnings Deferral Contribution in an amount
equal to the amounts designated by Participants pursuant to Long-Term
Savings Agreements and deducted from Earnings during such Wage Payment
Period and not reduced pursuant to paragraphs (b) or (c) of this
Section 3.1.
3.2 ADMINISTRATIVE RULES GOVERNING LONG-TERM SAVINGS
AGREEMENTS. (a) A Participant may change the percentage by which his
Earnings have been reduced pursuant to a Long-Term Savings Agreement,
within the percentage limits set forth in Section 3.1(a) of the Plan,
effective as of his first Wage Payment Period designated by him if
such Participant executes and delivers an amendment to such Long-Term
Savings Agreement designating such change, and any other forms
required by the Committee, within a reasonable time, as prescribed by
the Committee, prior to the beginning of such Period.
(b) Earnings Deferral Contributions shall be held unin-
vested by the Employers and shall be remitted to the Trustee as of the
earliest date on which such Contributions can reasonably be segregated
from the Employers' general assets, but no later than ninety (90) days
after each Wage Payment Date. In any event, each Employer shall pay
to the Trustee its Earnings Deferral Contribution with respect to a
particular Plan Year within the period of time prescribed by law for
filing the Employer's Federal income tax return for such Plan Year,
including extensions duly granted.
3.3 SUSPENSION OF LONG-TERM SAVINGS AGREEMENTS. (a) A
Participant may voluntarily suspend a Long-Term Savings Agreement for
an indefinite period of time; provided, however, that no period of
suspension shall be shorter in duration than one month. Such
suspension shall be effective as of the beginning of the Participant's
Wage Payment Period designated by him if a notice of suspension, on
such forms as shall be required by the Committee, is received by the
Committee within a reasonable time, as prescribed by the Committee,
prior to the beginning of such Period. If such notice is not received
by the Committee within such reasonable time prior to the beginning of
such Period, such suspension shall be effective as of the beginning of
the Participant's next succeeding Wage Payment Period. A Participant
115
will not be permitted to make up amounts subject to a Long-Term
Savings Agreement for any period of suspension. A Participant who
makes an election to suspend a Long-Term Savings Agreement pursuant to
this Section 3.3 may reinstate such Agreement effective as of his
first Wage Payment Period of any month following the period of
suspension if such Participant again executes and files with the
Committee a Long-Term Savings Agreement, and any other forms required
by the Committee, within a reasonable time, as prescribed by the
Committee, prior to the beginning of such Wage Payment Period.
(b) The Committee, at its election, may amend, suspend or
revoke a Long-Term Savings Agreement with a Participant at any time if
the Committee determines that such amendment or revocation is
necessary to ensure that the Annual Additions to the Accounts of a
Participant do not exceed the Maximum Permissible Amount for such
Participant for that Year or to ensure that the requirements of
Section 3.5 are met for such Year.
3.4 SUPPLEMENTAL EMPLOYER CONTRIBUTIONS. Each Employer
shall contribute to the Trust with respect to any Plan Year a
Supplemental Employer Contribution in such amount as the Board, in its
discretion, may determine by resolution adopted within thirty (30)
days after the end of such Plan Year. A Supplemental Employer
Contribution may be made to the Trust only if, and to the extent that,
such Contribution is necessary to satisfy one of the tests contained
in Section 3.5(b) of the Plan. The Supplemental Employer Contribution
for any Plan Year shall be allocated to Participants' Savings Accounts
pursuant to the provisions of Section 6.6 of the Plan. Upon
allocation to the Savings Accounts of Participants, the Supplemental
Employer Contribution shall be considered for all purposes of the Plan
as Earnings Deferral Contributions and be subject to all of the
provisions of the Plan regarding Earnings Deferral Contributions;
provided that no Matching Contribution shall be made with respect to a
Supplemental Employer Contribution. Within thirty (30) days after the
end of each Plan Year, the Company shall pay to the Trustee the
Supplemental Employer Contribution collected from each Employer with
respect to such Plan Year.
3.5 LIMITATIONS ON EARNINGS DEFERRAL CONTRIBUTIONS.
(a) Notwithstanding anything to the contrary contained elsewhere in
the Plan or contained in any Long-Term Savings Agreement, all Long-
Term Savings Agreements entered into with respect to any Plan Year
shall be valid only if one of the tests set forth in paragraph (b)
next below is satisfied for such Plan Year. In determining whether
such tests are satisfied, all Earnings Deferral Contributions and
Supplemental Employer Contributions made with respect to such Plan
Year shall be considered.
(b) For each Plan Year the Actual Deferral Percentage for
Highly Compensated Eligible Employees shall bear to the Actual
Deferral Percentage for all other Eligible Employees a relationship
that satisfies either of the following tests:
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(i) The Actual Deferral Percentage for Highly Compensated
Eligible Employees is not more than the Actual Deferral
Percentage of all other Eligible Employees multiplied by 1.25; or
(ii) The Actual Deferral Percentage for Highly Compensated
Eligible Employees is not more than the Actual Deferral
Percentage for all other Eligible Employees multiplied by two and
the excess of the Actual Deferral Percentage for the group of
Highly Compensated Eligible Employees over that of all other Xxx-
gible Employees is not more than two percentage points.
(c) If at the end of any Plan Year neither of the tests set
forth in paragraph (b) next above is satisfied for such Year, then:
(i) Long-Term Savings Agreements entered into for such Year
by Highly Compensated Eligible Employees shall be valid only to
the extent permitted by one of the tests set forth in paragraph
(b) next above, and Earnings Deferral Contributions made for such
Year on behalf of Highly Compensated Eligible Employees shall be
reduced to the extent necessary to comply with one of the tests
set forth in paragraph (b) next above. All Earnings Deferral
Contributions so reduced, adjusted for earnings, gains and losses
allocable thereto, shall be allocated and distributed in the
manner provided in Section 3.6.
(ii) Reductions pursuant to (i) next above shall be effected
with respect to Highly Compensated Eligible Employees pursuant to
the following procedure: The Actual Deferral Percentage of the
Highly Compensated Eligible Employee with the highest Actual
Deferral Percentage shall be reduced to the extent necessary to
cause such Highly Compensated Eligible Employee's Actual Deferral
Percentage to equal the Actual Deferral Percentage of the Highly
Compensated Eligible Employee with the next highest Actual
Deferral Percentage. This process shall be repeated until the
Plan satisfies one of the tests set forth in paragraph (b) for
such Plan Year.
(iii) Long-Term Savings Agreements entered into by all
Participants who are not Highly Compensated Eligible Employees
shall be valid and Earnings Deferral Contributions made on behalf
of such Participants shall not be changed.
The calculations, reductions and allocations required by this Section
3.5(c) and Section 3.6 shall be made by the Committee with respect to
a Plan Year at any time prior to the close of the following Plan Year.
(d) If at any time during a Plan Year the Committee, in its
sole discretion, determines that neither of the tests set forth in
paragraph (b) of this Section 3.5 may be met for such Plan Year, then:
(i) The Committee shall have the unilateral right during
the Plan Year to require the prospective reduction, for the
balance of such Plan Year or any part thereof, of the percentage
of the Earnings of Highly Compensated Eligible Employees that may
be subject to Long-Term Savings Agreements. Such reductions
117
shall be made to the extent necessary, in the discretion of the
Committee, to assure that one of the tests set forth in paragraph
(b) of this Section 3.5 shall be met for the Plan Year and shall
be based upon estimates made from data available to the Committee
at any time during the Plan Year.
(ii) Reductions pursuant to subsection (i) next above shall
be effected with respect to Highly Compensated Eligible Employees
pursuant to the following procedure: the Actual Deferral
Percentage of the Highly Compensated Eligible Employee with the
highest Actual Deferral Percentage shall be reduced to the extent
necessary to cause such Highly Compensated Eligible Employee's
Actual Deferral Percentage to equal the Actual Deferral
Percentage of the Highly Compensated Eligible Employee with the
next highest Actual Deferral Percentage. This process shall be
repeated to the extent necessary to assure that one of the tests
set forth in paragraph (b) shall not be exceeded for such Plan
Year.
3.6 RETURN OF CERTAIN EARNINGS DEFERRAL CONTRIBUTIONS.
(a) If an Earnings Deferral Contribution made on behalf of a
Participant who is a Highly Compensated Eligible Employee is reduced
for a Plan Year pursuant to Section 3.5(c), the amount so reduced,
adjusted for earnings, gains and losses allocable thereto for the Plan
Year , pursuant to Section 401(k)(8) of the Code, shall be returned to
the Participant's Employer and as soon as practicable thereafter paid
by the Employer directly to such Participant.
(b) Notwithstanding anything to the contrary contained
elsewhere in the Plan, if a Participant's Earnings Deferral
Contributions are returned pursuant to paragraph (a) above, any
Matching Contributions attributable thereto shall be forfeited and
shall be used as described in Section 6.10.
ARTICLE IV
MATCHING CONTRIBUTIONS
----------------------
4.1 MATCHING CONTRIBUTIONS. (a) As of each Wage Payment
Date, each Employer shall contribute to the Trust for each Participant
who satisfies Section 2.1(a) or (b) of the Plan and who is an Employee
of such Employer a Matching Contribution in an amount equal to fifty
percent (50%) of the amount deducted from his Earnings through a
payroll deduction as of such Wage Payment Date pursuant to a Long-Term
Savings Agreement; provided, however, that in no event shall the
Matching Contribution for a Participant on any Wage Payment Date
exceed three percent (3%) of such Participant's Earnings for the Wage
Payment Period corresponding to such Wage Payment Date.
(b) Matching Contributions shall be held uninvested by the
Employers and shall be remitted to the Trustee on the earliest date on
which such Contributions can reasonably be segregated from the
118
Employers' general assets, but no later than ninety (90) days
following each Wage Payment Date.
(c) Matching Contributions made with respect to a Plan Year
or any part thereof pursuant to this Section 4.1 shall in no event be
made later than the time prescribed by law for filing the income tax
return of the Company for the fiscal year of the Company that
corresponds to such Plan Year, including extensions duly granted.
4.2 SPECIAL RULES APPLICABLE TO MATCHING CONTRIBUTIONS .
(a) Notwithstanding any provision of the Plan to the contrary, for
each Plan Year the Contribution Percentage for Highly Compensated
Eligible Employees shall not exceed the greater of:
(i) The Contribution Percentage for all other Eligible
Employees multiplied by 1.25; or
(ii) The lesser of the Contribution Percentage for all other
Eligible Employees multiplied by two or the Contribution
Percentage for all other Eligible Employees plus two percentage
points.
(b) For purposes of this Section, the term "Contribution
Percentage" for a specified group of Eligible Employees for a given
Plan Year means the average of the ratios, calculated separately for
each Eligible Employee in such group, of (i) the aggregate of (A) the
Matching Contributions, if any, made on behalf of each such Eligible
Employee for such Plan Year, and (B) in the discretion of the
Committee and pursuant to applicable Treasury regulations, the
Earnings Deferral Contribution, if any, contributed on behalf of each
such Eligible Employee for such Plan Year, and (ii) the Eligible
Employee's Earnings for such Plan Year.
(c) If, at the end of any Plan Year, neither of the tests
set forth in paragraph (a) above is satisfied for such Plan Year, then
the Matching Contributions made for such Plan Year on behalf of Highly
Compensated Eligible Employees shall be reduced in the manner set
forth in the next sentence to the extent necessary to comply with one
of the tests set forth in paragraph (a). Reductions pursuant to the
preceding sentence shall be effected with respect to Highly
Compensated Eligible Employees pursuant to the following procedure:
the Contribution Percentage of the Highly Compensated Eligible
Employee with the Highest Contribution Percentage shall be reduced to
the extent necessary to cause such Highly Compensated Eligible
Employee's Contribution Percentage to equal the Contribution
Percentage of the Highly Compensated Eligible Employee with the next
highest Contribution Percentage. This process shall be repeated until
the Plan satisfies one of the tests set forth in paragraph (a) for
such Plan Year.
(d) Matching Contributions made on behalf of Participants
who are not Highly Compensated Eligible Employees shall be valid and
shall not be changed.
119
(e) Matching Contributions that are reduced pursuant to the
preceding provisions of this Section for a Plan Year, adjusted for
earnings, gains and losses allocable thereto for such Plan Year ,
pursuant to Section 401(m) of the Code, shall be returned to the
Employers and as soon as practicable thereafter paid by the Employers
directly to the applicable Participant.
(f) The calculations, reductions and payments required by
this Article shall be made by the Committee with respect to a Plan
Year at any time prior to the close of the following Plan Year.
(g) If a "Multiple Use of the Alternative Limitation," as
defined below, occurs in a Plan Year, then, notwithstanding any other
provisions of Section 3.5 or of this Section 4.2, the test in
paragraph (a)(ii) of this Section shall not be used to satisfy the
requirements of this Section for Matching Contributions in the same
Plan Year that the test contained in Section 3.5(b)(ii) is used to
satisfy the requirements of Section 3.5 with respect to Earnings
Deferral Contributions. If the preceding sentence shall be applicable
for a Plan Year, then the Committee shall determine whether to use the
test in paragraph (a)(ii) of this Section to satisfy the requirements
of this Section 4.2, or to use the test in paragraph (b)(ii) of
Section 3.5 to satisfy the requirements of Section 3.5, for such Plan
Year.
A Multiple Use of the Alternative Limitation shall occur in
a Plan Year if both of the following conditions are satisfied in the
Plan Year:
(i) At least one Highly Compensated Eligible Employee
employed by the Company or an Affiliated Employer is eligible to
participate both in a cash or deferred arrangement subject to
Section 401(k) of the Code and in a plan subject to Section
401(m) of the Code; and
(ii) The sum of the Actual Deferral Percentage of the entire
group of Highly Compensated Eligible Employees under such
arrangement subject to Section 401(k) and the Contribution
Percentage of the entire group of Highly Compensated Eligible
Employees under such plan subject to Section 401(m) for such Plan
Year exceeds the greater of:
(A) the sum of:
(I) 125% of the greater of (a) the Actual
Deferral Percentage of the Group of Eligible
Employees who are not Highly Compensated Eligible
Employees for such Plan Year, or (b) the
Contribution Percentage of the group of Eligible
Employees who are not Highly Compensated Eligible
Employees for such Plan Year, and
(II) Two plus the lesser of (A)(I)(a) or
(I)(b) above. In no event, however, shall this
120
amount exceed 200% of the lesser of (A)(I)(a) or
(A)(I)(b) above; or
(B) the sum of:
(I) 125% of the lesser of (a) the Actual
Deferral Percentage of the group of Eligible
Employees who are not Highly Compensated Eligible
Employees for such Plan Year, or (b) the
Contribution Percentage of the group of Eligible
Employees who are not Highly Compensated Eligible
Employees for such Plan Year, and
(II) Two plus the greater of (B)(I)(a) or
(B)(I)(b) above. In no event, however, shall this
amount exceed 200% of the greater of (B)(I)(a) or
(B)(I)(b) above.
(iii) The Actual Deferral Percentage of the entire group
of Highly Compensated Eligible Employees exceeds the amount
described in Section 3.5(b)(i); and
(iv) The Contribution Percentage of the entire group of
Highly Compensated Eligible Employees exceeds the amount
described in Section 4.2(a)(i).
ARTICLE V
ROLLOVERS AND TRANSFERS FROM OTHER PLANS
----------------------------------------
5.1 ROLLOVERS AND TRANSFERS FROM OTHER PLANS. (a) An Em-
ployee who has received a distribution of his interest in a qualified
plan of the Company or an Affiliated Employer or a former employer
under circumstances meeting the requirements of Section 402(c)(4) of
the Code relating to distributions from qualified plans may elect to
deposit all or any portion (as designated by such Employee in writing
to the Committee) of the amount of such distribution as a Rollover
Contribution to this Plan. A Rollover Contribution may be made only
within sixty (60) days following the date such Employee receives the
distribution from the plan of the Company or an Affiliated Employer or
his former employer (or within such additional period as may be
provided under Section 408 of the Code if the Employee shall have made
a timely deposit of the distribution in an individual retirement
account).
(b) The Trustee may also receive a Rollover Contribution
directly from the trustee under a plan of the Company or an Affiliated
Employer or former employer of all or any portion (as designated by
such Employee in writing to the Committee) of the amount that would
otherwise be distributable to the Employee from such plan; provided
that no such Rollover Contribution shall be received directly from a
plan if such plan is a defined benefit plan or a defined contribution
plan that provides for a life annuity form of payment except to the
121
extent that such Rollover Contribution is made pursuant to Section
401(a)(31) of the Code. In the event that a Participant has a loan
outstanding under a plan of the Company or an Affiliated Employer at
the time the Trustee receives a direct transfer of such Participant's
accounts from the trustee under the plan, such loan, at the discretion
of the Committee, shall be transferred to and assumed by the Trustee
and shall thereafter be treated as a loan made pursuant to
Article VIII of this Plan.
(c) The Committee shall establish rules and procedures to
implement this Section 5.1, including, without limitation, such
procedures as may be appropriate to permit the Committee to verify the
tax qualified status of the plan of the former employer or the Company
or an Affiliated Employer and compliance with any applicable pro-
visions of the Code relating to Rollover Contributions. Rollover
Contributions may be received in cash or in Xxxxxx Common Stock. No
Rollover Contribution shall be accepted until the Employee has
completed an investment election form in accordance with Section 11.3
of the Plan and delivered such form to the Committee. The amount
contributed or transferred to the Trustee pursuant to this Section
shall be placed in the Employee's Transfer Account for the benefit of
the Employee. Each Transfer Account shall share in the earnings,
gains and losses of the Trust Fund as set forth in Section 6.9 of the
Plan and shall be distributed at the same times and in the manner set
forth in Article VII below.
ARTICLE VI
ALLOCATIONS TO PARTICIPANTS' ACCOUNTS
-------------------------------------
6.1 SEPARATE ACCOUNTS. The Committee shall create and
maintain a separate Savings Account, Matching Contributions Account,
Transfer Account, Xxxxxx Account, Xxxxxxx Account, Anchor Account,
Intercraft Account and Levolor Account for each Participant, as shall
be needed. Participants' Accounts (and, where applicable, their sub-
accounts) are primarily for accounting purposes and do not require a
segregation of the Trust Fund. The Committee may delegate the
responsibility for the maintenance of the Accounts to the Trustee or
any agent or agents.
6.2 SUSPENSE ACCOUNT. The Committee shall maintain a Sus-
pense Account, if necessary, pursuant to the provisions of
Section 6.7. The investment of the balance in the Suspense Account
shall be within the sole discretion of the Committee.
6.3 ALLOCATION OF MATCHING CONTRIBUTIONS. As of each Wage
Payment Date , there shall be allocated to the Matching Contribution
Account of each Participant the Matching Contribution made on behalf
of such Participant pursuant to Section 4.1(a) for the Wage Payment
Period corresponding to such Date. Subject to Section 3.5(c), an
allocation pursuant to this Section shall be made only to the Matching
Contributions Account of a Participant whose Earnings were reduced
through payroll deductions pursuant to a Long-Term Savings Agreement
during the Wage Payment Period corresponding to such Date .
122
6.4 ALLOCATION OF EARNINGS DEFERRAL CONTRIBUTIONS. As of
each Wage Payment Date , there shall be allocated to the Savings
Account of each Participant an Earnings Deferral Contribution equal to
(a) the amount by which the Participant's Earnings were reduced by
payroll deductions during the Wage Payment Period corresponding to
such Wage Payment Date , pursuant to such Participant's Long-Term
Savings Agreement, reduced by (b) any applicable amounts pursuant to
the provisions of Sections 3.1(b), 3.1(c) and 3.5(c).
6.5 ALLOCATION OF ROLLOVER CONTRIBUTIONS. Rollover
Contributions made by or for an Employee shall be allocated to his
Transfer Account as soon as practicable following receipt of such
Contributions by the Trustee and the deposit of such funds into the
Trust Fund.
6.6 ALLOCATION OF SUPPLEMENTAL EMPLOYER CONTRIBUTIONS. In
the event that a Supplemental Employer Contribution is made with
respect to any Plan Year, such Contribution shall be allocated to the
Savings Accounts of all Participants who are not Highly Compensated
Eligible Employees. Such allocation shall be in the proportion to the
ratio that each such Participant's Earnings bears to the total
Earnings of all such Participants. Supplemental Employer
Contributions made for a Plan Year shall be allocated to Participants'
Savings Accounts as of the last day of such Plan Year.
6.7 MAXIMUM ALLOCATION.
(a) Except as provided in paragraph (b) below, the
allocations to the Account of any Participant in any Limitation Year
shall be limited so that the Participant's Annual Additions for such
Year do not exceed the Maximum Permissible Amount.
(b) If the foregoing limitation on allocations would be ex-
ceeded in any Limitation Year for any Participant as a result of
(i) the allocation of forfeitures; (ii) reasonable error in estimating
a Participant's Compensation (as defined in Section 1.29);
(iii) reasonable error in determining the amount of elective deferrals
(within the meaning of Section 402(g)(3) of the Code) that may be made
with respect to a Participant; or (iv) under such other limited facts
and circumstances which the Commissioner of the Internal Revenue
Service, pursuant to Treasury Regulation 1.415-6(b)(6), finds justify
the availability of this subsection 6.7(b), the Participant's Earnings
Deferral Contributions shall be distributed to him to the extent that
such distribution would reduce the amount in excess of the limits of
subsection 6.7(a). Any amounts in excess of the limits of subsection
6.7(a) remaining after such distribution shall be placed, unallocated
to any Participant, in a Suspense Account. If a Suspense Account is
in existence at any time during a particular Limitation Year, other
than the Limitation Year described in the preceding sentence, all
amounts in the Suspense Account must be allocated to Participants'
Accounts (subject to the limits of this Section 6.7) before any
contributions that constitute Annual Additions may be made to the Plan
for that Limitation Year. The excess amount allocated pursuant to
this subsection 6.7(b) shall be used to reduce Matching Contributions
for the next Limitation Year (and succeeding Limitation Years, as
123
necessary) for that Participant. However, if that Participant is not
covered by the Plan as of the end of the applicable Limitation Year,
then the excess amount must be held unallocated in the Suspense
Account for the Limitation Year and reallocated in the next Limitation
Year to all of the remaining Participants in the Plan. The Suspense
Account will not share in the valuation of Participants' Accounts and
the allocation of earnings set forth in Section 6.9 of the Plan, and
the change in fair market value and allocation of earnings
attributable to the Suspense Account shall be allocated to the
remaining Accounts hereunder as set forth in Section 6.9.
(c) Any reduction in the contributions and allocations made
under this Plan for a Participant's Account required pursuant to this
Section 6.7 and Section 415 of the Code shall be effected, to the
extent necessary, in the following manner: (i) first, the Matching
Contribution that would have been made for the applicable Plan Year
with respect to such Participant shall be reduced; (ii) next, the
Supplemental Employer Contribution that would have been made for the
applicable Plan Year with respect to such Participant shall be
reduced; and (iii) last, the Earnings Deferral Contribution that would
have been made for the applicable Plan Year with respect to such
Participant, adjusted for earnings, gains and losses allocable
thereto, shall be reduced. Any reductions in Matching Contributions
and Supplemental Employer Contributions pursuant to clauses (i) and
(ii), adjusted for gains, earnings and losses allocable thereto, shall
be treated pursuant to subsection (b) of this Section. The amount of
any reductions in Earnings Deferral Contributions pursuant to
clause (iii), adjusted for gains, earnings and losses allocable
thereto, shall be paid by the Trustee directly to the affected
Participant pursuant to subsection (b) of this Section.
(d) Upon termination of the Plan, any amounts in a Suspense
Account at the time of such termination shall revert to the Company.
(e) In the event that any Participant under this Plan is
also a Participant in a defined benefit plan (as defined in Section
415(k) of the Code) maintained by the Company, the sum of the defined
benefit plan fraction and the defined contribution plan fraction (as
such terms are defined in Section 415(e) of the Code) for any
Limitation Year with respect to such Participant shall not exceed
one (1). If such sum exceeds one (1), the contributions and
allocations to the Participant's Account under this Plan shall be
reduced (prior to the reduction of any benefit of such Participant
under such defined benefit plan), as necessary, to obtain compliance
with Section 415(e) of the Code. Any such reduction under this Plan
shall be made only to the extent necessary so that the sum of such
fractions shall equal one (1). For purposes of this Section 6.7, a
plan is deemed to be maintained by the Company if the plan is
maintained by any Affiliated Employer.
(f) If a Participant is entitled to receive an allocation
under this Plan and any Related Plan and, in the absence of the
limitations contained in this Section 6.7, the Company would
contribute or allocate to the Account of that Participant an amount
for a Limitation Year that would cause the Annual Additions to the
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Account of the Participant to exceed the Maximum Permissible Amount
for such Year, then the contributions and allocations made with
respect to the Participant under this Plan shall not be reduced until
the contributions or allocations under the Related Plan have been
reduced to the extent necessary so that the allocation of such Annual
Additions does not exceed the Maximum Permissible Amount.
(g) The provisions of this Section shall be interpreted by
the Committee, in the administration of the Plan, to reduce
allocations (as required by this Section) only to the minimum extent
necessary to reflect the requirements of Section 415 of the Code, as
amended and in force from time to time, and Treasury Regulations
promulgated pursuant to said Section, which are hereby incorporated by
reference herein.
6.8 VESTING. (a) Each Participant shall at all times be
fully vested in the Adjusted Balance of his Savings Account and
Transfer Account under the Plan.
(b) Each Participant who was a participant in the Anchor
Plan, and who was a "Member" within the meaning of that plan, on
July 2, 1987, shall at all times be fully vested in the Adjusted
Balance of his Anchor Account and Matching Contributions Account under
the Plan.
(c) Each Participant who was a participant in the Anchor
Plan, but who was not a "Member" within the meaning of that plan, on
July 2, 1987, shall have a vested interest in the Adjusted Balance of
his Anchor Account in accordance with the provisions of Article VII of
the Anchor Plan as in effect on December 31, 1988.
(d) Each Participant who was a participant in the Xxxxxx
Plan shall at all times be fully vested in the Adjusted Balance of his
Xxxxxx Account.
(e) Each Participant who was a participant in the Xxxxxxx
Plan shall at all times be fully vested in the Adjusted Balance of his
Xxxxxxx Account.
(f) Each Participant who was employed in the Packaging
Division of Anchor Hocking Corporation at its locations in Lancaster,
Ohio, Weirton, West Virginia, Connellsville, Pennsylvania and
Glassboro, New Jersey on December 31, 1992 shall be fully vested in
the Adjusted Balance of his Matching Contributions Account as of
December 31, 1992.
(g) Each Participant who was employed by the Counselor Borg
Scale Company on October 27, 1993 shall be fully vested in the
Adjusted Balance of his Matching Contributions Account as of October
27, 1993.
(h) Each Participant who was a participant in an Intercraft
Plan shall at all times be fully vested in the Adjusted Balance of his
Intercraft Account.
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(i) Each Participant who was a participant in the Levolor
Plan shall at all times be fully vested in the Adjusted Balance of his
Levolor Account.
(j) Each Participant not described in paragraph (b), (f),
or (g) shall have a vested interest in the Adjusted Balance of his
Matching Contributions Account in accordance with the following
Schedule:
Vested Forfeitable
Years of Vesting Service Percentage Percentage
------------------------ ---------- -----------
Fewer than 5 years 0% 100%
5 years or more 100% 0%
(k) On reaching his Normal Retirement Date while an Em-
ployee, a Participant shall be one hundred percent (100%) vested in
the Adjusted Balance of his Anchor Account and Matching Contributions
Account.
(l) In the event a Participant dies or becomes permanently
disabled (as defined in Section 7.3) while an Employee, he shall be
one hundred percent (100%) vested in the Adjusted Balance of his
Anchor Account and Matching Contributions Account as of the date of
his death or termination due to disability.
6.9 ALLOCATIONS AND ADJUSTMENTS TO ACCOUNT. As of the
close of business of each business day , the Trustee shall determine,
on an accrual basis of accounting, the Adjusted Balance of the Account
of each Participant in the following manner:
(a) The Trustee shall determine the earnings and the amount
of any realized or unrealized appreciation or depreciation in the fair
market value of each of the Investment Funds, determined as of the
close of business of the preceding business day. Such determination
shall reflect a reduction for any investment manager fees charged with
respect to a particular Investment Fund. In determining such value
the Trustee shall use such generally accepted methods and bases as the
Trustee, in its discretion, shall deem advisable. The judgment of the
Trustee as to the fair market value of any asset shall be
presumptively conclusive and binding on all persons.
(b) Except as otherwise provided in paragraph (c) next
below, the earnings and market appreciation or depreciation of each
Investment Fund (including earnings and appreciation or depreciation
attributable to the investment of any Suspense Account in such
Investment Fund) shall be allocated to each applicable Account
(excluding any Suspense Account) that is invested in such Investment
Fund on the current business day by multiplying the earnings and
market appreciation or depreciation of such Fund by a fraction, the
numerator of which is the Adjusted Balance of such Account invested in
the applicable Fund as of the close of business of the preceding
business day and the denominator of which is the total of the Adjusted
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Balances of all such Accounts (excluding any Suspense Account)
invested in such Fund as of the close of business of the preceding
business day (subtracting for purposes of determining such fraction
all distributions, withdrawals and loans made from any such Account
since such prior business day). Each such Account (excluding any
Suspense Account) shall be adjusted by adding thereto or subtracting
therefrom its share of the earnings and market appreciation or
depreciation of each Investment Fund as determined by the preceding
sentence. Each Account shall then be further adjusted by adding to it
the amount of contributions, if any, allocable thereto for each
Participant pursuant to Sections 6.3, 6.4, 6.5 and 6.6 since the close
of business of the preceding business day, and subtracting therefrom
all distributions, withdrawals and loans from such Account since such
preceding business day.
(c) Earnings on amounts relating to Rollover Contributions,
benefit payments and loan repayments that are invested by the Trustee
in short term investment obligations pending allocation to
Participants' Accounts or distribution to Participants or
Beneficiaries, as the case may be, shall first be used to pay certain
administrative expenses described in Section 9.6. Any remaining
earnings on such amounts shall be allocated among the Accounts of all
Participants employed by an Employer in proportion to the ratio that
each such Participant's Account balance bears to the total Account
balances of all such Participants.
6.10 ALLOCATION OF FORFEITURES. As of each Wage Payment
Date any amount that may have become allocable during the
corresponding Wage Payment Period by reason of a forfeiture of the
Adjusted Balance of the Anchor Account or Matching Contributions
Account of any Participant pursuant to Section 7.4 shall first be used
to pay certain administrative expenses described in Section 9.6. Any
remaining amounts of forfeitures shall be used to offset the amount of
Matching Contributions to be made for the next Wage Payment Period by
such Participant's Employer pursuant to Section 4.1 and shall be
allocated among the Matching Contributions Accounts of all
Participants employed by such Employer pursuant to the provisions of
Section 6.3.
6.11 ACCOUNTS TRANSFERRED FROM THE XXXXXX PLAN. If a
Participant who was a participant in the Xxxxxx Plan prior to January
1, 1992 had accounts transferred from the Xxxxxx Plan to this Plan by
reason of the termination of the Xxxxxx Plan as of December 31, 1991,
such transferred accounts, and the earnings and losses allocable
thereto, shall be held in the Xxxxxx Account established in the
Participant's name under the Trust.
6.12 ACCOUNTS TRANSFERRED FROM THE XXXXXXX PLAN. If a
Participant who was a participant in the Xxxxxxx Plan prior to January
1, 1993 had accounts transferred from the Xxxxxxx Plan to this Plan by
reason of the merger of the Xxxxxxx Plan as of December 31, 1992, such
transferred accounts, and the earnings and losses allocable thereto,
shall be held in the Xxxxxxx Account established in the Participant's
name under the Trust.
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6.13 ACCOUNTS TRANSFERRED FROM AN INTERCRAFT PLAN. If a
Participant who was a participant in an Intercraft Plan prior to
January 1, 1994 has accounts transferred from the Intercraft Plan to
this Plan by reason of the merger of the Intercraft Plan as of January
1, 1994, such transferred accounts, and the earnings and losses
allocable thereto, shall be held in the Intercraft Account established
in the Participant's name under the Trust.
6.14 ACCOUNTS TRANSFERRED FROM THE LEVOLOR PLAN. If a
Participant who was a participant in the Levolor Plan prior to October
1, 1994 has accounts transferred from the Levolor Plan to this Plan by
reason of the merger of the Levolor Plan as of October 1, 1994, such
transferred accounts, and the earnings and losses allocable thereto,
shall be held in the Levolor Account established in the Participant's
name under the Trust.
ARTICLE VII
PAYMENT OF BENEFITS
-------------------
7.1 PAYMENTS ON RETIREMENT. A Participant who attains his
Normal Retirement Date and continues to be an Employee shall continue
to share in the allocation of Earnings Deferral Contributions,
Supplemental Employer Contributions, Matching Contributions, and may
elect or continue to enter into Long-Term Savings Agreements. Upon
the retirement of a Participant at or after his Normal Retirement
Date, the Committee shall notify the Trustee in writing of the
Participant's retirement and shall direct the Trustee to make payment,
in a method provided in the Plan, of the Adjusted Balance of the
Participant's Account as of the Participant's retirement date.
7.2 PAYMENTS ON DEATH.
(a) Upon the death of a Participant the Committee shall
promptly notify the Trustee in writing of the Participant's death and
the name of his Beneficiary (or Surviving Spouse if paragraph (c) is
applicable) and shall direct the Trustee to make payment, in a method
provided in the Plan, of the Adjusted Balance of the Participant's
Account as of his date of death, to his Beneficiary or Surviving
Spouse, as the case may be, in accordance with Section 7.5.
(b) Each Participant who is not married to a Surviving
Spouse at the date of his death, and each married Participant whose
Surviving Spouse has consented to an alternate Beneficiary
designation, shall have the right to designate, by giving a written
designation to the Committee, a person or persons or entity as
Beneficiary to receive the death benefit provided under this Section
7.2. Successive designations may be made, and the last designation
received by the Committee prior to the death of the Participant shall
be effective and shall revoke all prior designations. If a designated
Beneficiary shall die before the Participant, his interest shall
terminate and, unless otherwise provided in the Participant's
designation, if such designation named more than one Beneficiary, such
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interest shall be paid in equal shares to those Beneficiaries, if any,
who survive the Participant. The Participant shall have the right to
revoke the designation of any Beneficiary without the consent of the
Beneficiary.
(c) The Beneficiary of each married Participant shall be
the Surviving Spouse of the Participant and the death benefits of any
Participant who is married to a Surviving Spouse at the date of his
death shall be paid in full to his Surviving Spouse in a single lump
sum. Notwithstanding the preceding sentence, the death benefits
provided pursuant to Section 7.2(a) shall be distributed to a married
Participant's Beneficiary (if any) designated as provided in paragraph
(b) and pursuant to the method, if any, designated by the Participant
as provided in paragraph (b), if the Participant's Surviving Spouse
consented to such designation by the Participant, prior to the date of
his death, in writing in accordance with the requirements of Sections
205(b)(1)(C)(i) and 205(c)(2)(A) of ERISA. Such consent must
acknowledge the effect of the election and the identity of any non-
Surviving Spouse Beneficiary, including any class of Beneficiaries or
contingent Beneficiaries, and must be witnessed by a representative of
the Plan or a notary public. The consent of the Participant's
Surviving Spouse shall not be required if the Participant establishes
to the satisfaction of the Committee that such consent may not be
obtained because there is no Surviving Spouse or the Surviving Spouse
cannot be located, or because of such other circumstances as the
Secretary of the Treasury may prescribe by regulations. The
Participant may not subsequently change the method of distribution
elected by the Participant or the designation of his Beneficiary
unless his Surviving Spouse consents to the new election or
designation in accordance with the requirements set forth in the
preceding sentence, or unless the Surviving Spouse's consent permits
the Participant to change the election of method of payment or the
designation of his Beneficiary without the Surviving Spouse's further
consent. A Spouse's consent shall be irrevocable. Any consent by a
Surviving Spouse, or establishment that the consent of the Surviving
Spouse may not be obtained, shall be effective only with respect to
that Surviving Spouse.
(d) If a Participant shall fail to designate a Beneficiary,
or if such designation shall for any reason be illegal or ineffective,
or if no Beneficiary shall survive the Participant, his death benefits
shall be paid:
(i) to his Surviving Spouse;
(ii) if there is no Surviving Spouse, to his surviving
children (including legally adopted children) in equal shares;
(iii) if there is neither a Surviving Spouse nor
surviving children, to his surviving parents in equal shares;
(iv) if there is neither a Surviving Spouse, nor surviving
children or surviving parents, to the duly appointed and
qualified executor or other personal representative of the
129
Participant to be distributed in accordance with the
Participant's will or applicable intestacy law; or
(v) in the event that there shall be no such representative
duly appointed and qualified within six (6) months after the date
of death of such deceased Participant, then to such persons as,
at the date of his death, would be entitled to share in the
distribution of such deceased Participant's personal estate under
the provisions of the applicable statute then in force governing
the descent of intestate property, in the proportions specified
in such statute.
(e) The Committee may determine the identity of the dis-
tributees and in so doing may act and rely upon any information
it may deem reliable upon reasonable inquiry, and upon any
affidavit, certificate, or other paper believed by it to be
genuine, and upon any evidence believed by it sufficient.
7.3 PAYMENTS ON DISABILITY. Upon the termination of a
Participant's employment with all Employers by reason of a disability,
the Committee shall notify the Trustee in writing of said disability
termination, and shall direct the Trustee to make payment, in a method
provided in the Plan, of the Adjusted Balance of the Participant's
Accounts as of the date of such Participant's disability termination.
For purposes of this section "disability" means a physical or mental
condition that is expected to render the Participant permanently
unable to perform his usual duties or any comparable duties for his
Employer. The determination of the existence of such disability shall
be made by the Committee and shall be final and binding upon such
Participant and all other parties. The Committee may require
submission of such medical evidence as it may deem necessary in order
to arrive at its determination. The Committee's determination of the
existence of a disability will be made with reference to the nature of
the injury without regard to the period the Participant is absent from
work.
7.4 PAYMENTS ON TERMINATION FOR REASONS OTHER THAN RETIRE-
MENT, DEATH OR DISABILITY. Upon the termination of employment with
all Employers of a Participant for any reason other than retirement,
death or disability, the Committee shall notify the Trustee in writing
of the Participant's termination and shall direct the Trustee to make
payment of the Adjusted Balance of the Participant's Savings Account,
Xxxxxx Account, Intercraft Account, Levolor Account, Xxxxxxx Account
and Transfer Account, and the vested portion of the Adjusted Balance
of his Anchor Account and Matching Contributions Account, as of the
Valuation Date immediately succeeding his application for
distribution, in accordance with Section 7.5. The non-vested
portion, if any, of the Adjusted Balance of the Participant's Anchor
Account and Matching Contributions Account shall be forfeited after
the Participant incurs a one-year Break in Service. Forfeitures shall
be used first to pay certain administrative expenses described in
Section 9.6, and then to reduce Matching Contributions for the Plan
Year next following the Year the forfeiture occurs and for succeeding
Years, to the extent necessary, as provided in Section 6.10. If a
Participant is reemployed before he incurs a Break in Service of at
130
least five years, the forfeited portion of his Anchor Account and
Matching Contribution Account will be reinstated and he will
continue to vest in such Accounts. If a Participant who is rehired
before he incurs a Break in Service of at least five years again
incurs a termination of employment under circumstances in which he is
not fully vested in his Anchor Account and Matching Contributions
Account, a portion of his Anchor Account and Matching Contributions
Account distributable on the date of his later termination of
employment shall be calculated as follows:
(i) the amount distributed to the Participant from his
Anchor Account and Matching Contributions Account upon his
earlier termination of employment shall be added to the Adjusted
Balance of his Anchor Account and Matching Contributions Account;
(ii) the amount determined under paragraph (i) shall be
multiplied by the vested percentage as of the date of his later
termination of employment determined under Section 6.8; and
(iii) the amount distributed to the Participant upon his
earlier termination of employment shall be deducted from the
product calculated under paragraph (ii) to determine the amount
distributable upon his termination of employment.
7.5 MANNER AND TIMING OF PAYMENT. (a) Whenever the
Committee shall direct the Trustee to make payment to a Participant,
his Beneficiary, or his Surviving Spouse upon termination of the
Participant's employment (whether by reason of retirement, death,
disability or for other reasons), the Committee shall direct the
Trustee to pay the Adjusted Balance of his Savings Account, Transfer
Account, Xxxxxx Account, Intercraft Account, Levolor Account and
Xxxxxxx Account, if any, and the vested portion of the Adjusted
Balance of his Matching Contributions Account and Anchor Account, if
any, to or for the benefit of the Participant, his Beneficiary, or his
Surviving Spouse, in cash or wholly or partly in kind, in either of
the following ways as the Participant (or, in the case of a deceased
former Participant, his Beneficiary or Surviving Spouse) shall
determine:
(i) In a lump sum, payable sixty days after termination of
the Participant's employment with all Employers unless the
Participant elects to defer payment until March 31 of the
succeeding Plan Year; provided that distributions in kind shall
be valued at the fair market value of the assets distributed on
the date of such distribution; or
(ii) In installments payable in fixed and substantially
equal monthly, quarterly, semi-annual or annual amounts, com-
mencing sixty days after termination of the Participant's
employment with all Employers, unless the Participant elects to
defer commencement of payments until March 31 of the succeeding
Plan Year; and continuing over a period not longer than the maxi-
mum period permitted under paragraph (c) below; provided that
distributions in kind shall be valued at the fair market value of
the assets distributed on the date of such distribution. The
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Participant, or Beneficiary or Surviving Spouse, as the case may
be, may increase the fixed amount of the installment payment
previously elected, or may elect to have the remaining vested
portions of the Adjusted Balance of the Accounts paid in a lump
sum. Such election shall be effective as of the first day of any
month if written notice is received by the Committee no later
than the fifteenth day of the preceding month.
(b) Notwithstanding anything to the contrary in the Plan,
and subject to subsection 7.5(d), if on the last day of the Plan Year
corresponding to or following the date of a Participant's termination
of employment, the total amount payable under paragraph (a), excluding
amounts distributable from his Transfer Account, is $3,500 or less,
such amount shall be distributed to the Participant in a lump sum as
soon as is administratively feasible following such date.
Notwithstanding the foregoing, if on the last day of the Plan Year
corresponding to or following the date of a Participant's termination
of employment, the total amount payable under paragraph (a), excluding
amounts distributable from the Participant's Transfer Account, exceeds
$3,500, no part of such amount may be distributed prior to the earlier
of the Participant's Normal Retirement Date or the date of his death
without the written consent of the Participant.
(c) Notwithstanding anything to the contrary contained
elsewhere in the Plan:
(i) The payment of benefits under the Plan to any
Participant will:
(A) be distributed to him not later than the Required
Distribution Date (as defined in paragraph (c)(iii)), or
(B) be distributed to him commencing not later than
the Required Distribution Date in accordance with regu-
lations prescribed by the Secretary of the Treasury (I) over
the life of the Participant or over the lives of the
Participant and his Beneficiary, or (II) over a period not
extending beyond the life expectancy of the Participant or
the life expectancy of the Participant and his Beneficiary.
(ii) (A) If the Participant dies after distribution
to him has commenced pursuant to paragraph (c)(i)(B) but
before his entire interest in the Plan has been distributed
to him, then the remaining portion of that interest will be
distributed at least as rapidly as under the method of
distribution being used under paragraph (c)(i)(B) at the
date of his death.
(B) If the Participant dies before distribution
to him has commenced pursuant to paragraph (c)(i)(B), then,
except as provided in paragraphs (c)(ii)(C) and (c)(ii)(D),
his entire interest in the Plan will be distributed within
five years after his death.
132
(C) Notwithstanding the provisions of paragraph
(c)(ii)(B), if the Participant dies before distribution to
him has commenced pursuant to paragraph (c)(i)(B) and if any
portion of his interest in the Plan is payable (I) to or for
the benefit of a Beneficiary, (II) in accordance with
regulations prescribed by the Secretary of the Treasury over
the life of the Beneficiary or over a period not extending
beyond the life expectancy of the Beneficiary, and (III)
beginning not later than one year after the date of the
Participant's death or such later date as the Secretary of
the Treasury may prescribe by regulations, then the portion
of his interest referred to in this paragraph (c)(ii)(C)
shall be treated as distributed on the date on which such
distributions begin.
(D) Notwithstanding the provisions of paragraphs
(c)(ii)(B) and (c)(ii)(C), if the Beneficiary referred to in
paragraph (c)(ii)(C) is the Surviving Spouse of the
Participant, then
(I) the date on which the distributions are
required to begin under paragraph
(c)(ii)(C)(III) of this Section shall not be
earlier than the date on which the
Participant would have attained age 70 1/2,
and
(II) if the Surviving Spouse dies before the
distributions to that Spouse begin, then this
paragraph (c)(ii)(D) shall be applied as if
the Surviving Spouse were the Participant.
(iii) For purposes of this paragraph (c), the Required
Distribution Date means April 1 of the calendar year following
the calendar year in which the Participant attains age 70 1/2.
(iv) For purposes of this paragraph (c), the life expectancy
of a Participant and his Spouse may be redetermined, but not more
frequently than annually. This subsection (c)(iv) shall not
apply in the case of a life annuity.
(v) A Participant may not elect a form of distribution
providing for payments after the Participant's death to a
Beneficiary other than his Spouse unless the actuarial value of
the payments expected to be made to the Participant during his
lifetime is more than fifty percent (50%) of the actuarial value
of the total payments expected to be made under such form of
distribution.
(d) This subsection 7.5(d) 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 subsection, a Distributee may elect, at the time and in the
manner prescribed by the Plan Administrator, to have any portion of an
133
Eligible Rollover Distribution paid directly to an Eligible Retirement
Plan specified by the Distributee in a Direct Rollover.
(i) Definitions.
(A) "Eligible Rollover Distribution" is any
distribution of all or any portion of the balance to the
credit of the Distributee, except that an Eligible Rollover
Distribution does not include: any distribution that is one
of a series of substantially equal periodic payments (not
less frequently than annually) made for the life (or life
expectancy) of the Distributee or the joint lives (or joint
life expectancies) of the Distributee and the Distributee's
designated Beneficiary, or for a specified period of ten
years or more; any distribution to the extent such
distribution is required under section 401(a)(9) of the
Code; and the portion of any distribution that is not
includible in gross income (determined without regard to the
exclusion for net unrealized appreciation with respect to
employer securities).
(B) "Eligible Retirement Plan" is an individual
retirement account described in section 408(a) of the Code,
an individual retirement annuity described in section 408(b)
of the Code, an annuity plan described in section 403(a) of
the Code, or a qualified trust described in section 401(a)
of the Code, that accepts the Distributee's eligible
rollover distribution. However, in the case of an Eligible
Rollover Distribution to the Surviving Spouse, an Eligible
Retirement Plan is an individual retirement account or
individual retirement annuity.
(C) "Distributee" 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.
(D) "Direct Rollover" is a payment by the Plan to the
Eligible Retirement Plan specified by the Distributee.
(e) If a distribution is one to which Sections 401(a)(11)
and 417 of the Code do not apply, such distribution may commence less
than 30 days after the notice required under section 1.411(a)-11(c)
of the Income Tax Regulations is given, provided that:
(i) the Committee clearly informs the Participant that
the Participant has a right to a period of at least 30 days
after receiving the notice to consider the decision of
whether or not to elect a distribution (and, if applicable,
a particular distribution option), and
134
(ii) the Participant, after receiving the notice,
affirmatively elects a distribution.
(f) A Participant who entered the Levolor Plan prior to
September 1, 1990 and for whom a Levolor Account has been established
under the Plan may elect to have the Adjusted Balance of the portion
of such Levolor Account attributable to employer profit sharing
contributions paid either pursuant to paragraph (g) below or in the
form of a paid-up annuity policy.
(g) Notwithstanding the above, the following provisions of
this paragraph (g) apply with respect to the Adjusted Balance of (i)
the portion of a Participant's Intercraft Account held under the
Intercraft Retirement Program, and (ii) the portion of a Participant's
Levolor Account referred to in paragraph (f) above, in the case of a
Participant who elects payment of such portion in the form of an
annuity pursuant to paragraph (f) above:
(i) Payment for reasons other than death.
(A) Upon termination of a Participant's employment with all
Employers for any reason other than death, the Committee shall
direct the Trustee to pay such portion as follows:
(I) If the Participant has a Spouse at the date
payments to him are to commence, such amount shall
be payable to the Participant in the form of a
Joint and Survivor Annuity. However, the
Participant, with the consent of his Spouse, may
elect during the Election Period to waive payment
in the form of a Joint and Survivor Annuity
pursuant to subsection (i)(B) below and elect
payment of such portion in a method described in
Section 7.5(a) and (d) above. For purposes of
this subsection (i), the term "Joint and Survivor
Annuity" means an annuity payable to the
Participant for his life, with a survivor annuity
payable to his Spouse for the life of such Spouse
commencing on the first day of the month
immediately following the date of death of the
Participant, in an amount equal to one-half of the
amount payable during the life of the Participant.
(II) If a Participant does not have a Spouse at the
date payments to him are to commence, such portion
shall be payable to him in the form of a Single
Life Annuity. However, the Participant may elect
during the Election Period to waive payment in the
form of a Single Life Annuity pursuant to
subsection (i)(B) below and elect payment of such
portion in a method described in Section 7.5(a)
and (d) above. For purposes of this paragraph
(i), the term "Single Life Annuity" means an
annuity payable to the Participant for his life.
135
(B) Within a reasonable time prior to the commencement
of payments to a Participant under the Plan, the Committee
shall give the Participant a written notice, in nontechnical
terms, of his right to waive payment of such portion in the
form of a Joint and Survivor Annuity or Single Life Annuity,
as the case may be, pursuant to paragraph (i)(A) and of his
right to elect the method of such payment as described in
Section 7.5(a) and (d) above. Such notice shall include a
description of (I) the terms and conditions of the Joint and
Survivor Annuity or Single Life Annuity, whichever is
applicable, (II) the Participant's right to make, and the
effect of making, an election to waive the Joint and
Survivor Annuity or Single Life Annuity, (III) the right of
the Participant's Spouse, if any, not to consent to such an
election, (IV) the right to make, and the effect of, a
revocation of such an election, and (V) the methods of
payment pursuant to Section 7.5(a) and (d) above. A
Participant may elect at any time during the Election Period
to waive the Joint and Survivor Annuity or Single Live
Annuity, as the case may be, and to elect a method of
payment described in Section 7.5(a) and (d) above. For
purposes of this subsection (i), the term "Election Period"
means the ninety-day period ending on the earliest date with
respect to which payments to the Participant commence. Any
election pursuant to this paragraph (i) may be modified or
revoked during the Election Period and shall be
automatically revoked if the Participant dies before
payments commence.
(C) Any election by a married Participant to
waive payment in the form of a Joint and Survivor
Annuity shall not take effect unless the Participant's
Spouse consents in writing to the election and such
consent acknowledges the effect of the election. Such
a consent must acknowledge the effect of the election
and the identity of any non-Spouse Beneficiary,
including any class of Beneficiaries or contingent
Beneficiaries, designated to receive any installments
remaining unpaid at the date of his death, and must be
witnessed by a representative of the Plan or a notary
public. The consent of the Participant's Spouse shall
not be required if the Participant establishes to the
satisfaction of the Committee that consent may not be
obtained because there is no Spouse or the Spouse
cannot be located, or because of such other
circumstances as the Secretary of the Treasury may
prescribe by regulations. Any designation by a
Participant of a new Beneficiary or alternate method of
payment shall not take effect unless the Participant's
Spouse, if any, consents to the new designation
pursuant to the procedures set forth in the preceding
sentence or unless the Spouse's consent permits the
Participant to change the designation of his
Beneficiary or the method of payment without the
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Spouse's consent. A Spouse's consent shall be
irrevocable.
(ii) Payment By Reason of Death.
(A) Upon the death of a Participant prior to commencement
of payment of such portion to him, the Committee shall direct the
Trustee to pay such amount as follows:
(I) If the Participant has a Spouse at the date of his
death, the Adjusted Balance of such portion shall
be payable to his Spouse as a Preretirement
Survivor Annuity. However, the Participant, with
the consent of his Spouse, may elect during the
Election Period to waive the Preretirement
Survivor Annuity pursuant to (ii)(B) below and
elect payment of such portion in a method
described in Section 7.5(a) and (d) above. For
purposes of this paragraph (ii), the term
"Preretirement Survivor Annuity" means an annuity
payable for the life of the Participant's Spouse,
commencing on the first day of the month after the
date of death of the Participant.
(II) If a Participant does not have a Spouse at the
date of his death, such portion shall be payable
to his Beneficiary in any of the ways set forth in
Section 7.5(a) above as the Participant shall
elect by written notice delivered to the Committee
during the Election Period.
(B) The Committee shall provide each married
Participant with a written explanation of the Preretirement
Survivor Xxxxxxx. The explanation shall be provided to each
such Participant as soon as may be practicable after his
date of employment. If the employment of the Participant
with the all Employers terminates prior to the date of his
death and he is then reemployed, he must receive such
written explanation as soon as practicable after the date of
reemployment. Such notice shall include a description of
(I) the terms and conditions of the Preretirement Survivor
Xxxxxxx, (II) the Participant's right to make, and the
effect of, an election to waive the Preretirement Survivor
Annuity and to designate a beneficiary to receive the
adjusted balances in his accounts, (III) the rights of the
Participant's spouse not to consent to such an election,
(IV) the right to make, and the effect of, the revocation of
such an election, and (V) the methods of payment pursuant to
paragraph (iv) below. A Participant may elect at any time
during the Election Period to waive the Preretirement
Survivor Annuity, if applicable, and to elect a method of
payment described in Section 7.5(a) and (d) above. For
purposes of this subsection (ii), the term "Election Period"
means the period that begins on the date on which the
Participant receives the aforementioned explanation and ends
137
on the date of the Participant's death. Any election
pursuant to this subsection (ii) may be modified or revoked
during the Election Period.
(C) Any election by a married Participant to waive payment
in the event of his death in the form of a Preretirement Survivor
Annuity and to designate a non-Spouse Beneficiary shall not take
effect unless the Participant's Spouse consents in writing to the
election and designation prior to the Participant's death. The
Spousal consent provisions described in (i)(C) above shall apply.
7.6 WITHDRAWALS FROM TRANSFER ACCOUNT. As of the last day
of his first full Wage Payment Period of any month Participant may
withdraw from his Transfer Account an amount not in excess of the
Adjusted Balance thereof determined as of such day. Each request for
distribution pursuant to this Section 7.6 must be made by written
application to the Committee no later than the fifteenth day of the
month preceding the last day of the applicable calendar month.
7.7 WITHDRAWALS FROM ANCHOR ACCOUNT. A Participant for
whom an Anchor Account has been established under the Plan shall be
entitled to withdraw amounts from his various sub-accounts thereunder
pursuant to this Section. The sub-accounts referred to below have the
meaning as set forth in the Anchor Plan and consist of the funds
accumulated thereunder as of December 31, 1988. Such withdrawals are
effective as of the first day of any month if written notice is
received by the Committee no later than the fifteen day of preceding
month.
(a) A Participant may elect to withdraw 25%, 50%, 75% or
100% of the portion of his Voluntary Member Contributions Sub-
Account that is attributable to Voluntary Member Contributions
made prior to January 1, 1987, excluding any net earnings and
gain thereon.
(b) A Participant who has withdrawn 100% of his pre-1987
Voluntary Member Contributions may elect to withdraw 25%, 50%,
75% or 100% of the portion of his Basic Member Contribution Sub-
Account that is attributable to Basic Member Contributions made
prior to January 1, 1987, excluding any net earnings and gains
thereon.
(c) Any Participant who has withdrawn 100% of his pre-1987
Voluntary Member and Basic Member Contributions may elect to
withdraw 25%, 50%, 75% or 100% of the remainder of his Voluntary
Member Contribution Sub-Account, including any net earnings and
gain thereon.
(d) A Participant who has withdrawn 100% of his pre-1987
Basic Member Contributions and 100% of his Voluntary Member
Contributions Sub-Accounts may elect to withdraw 25%, 50%, 75% or
100% of the remainder of his Basic Member Contributions Sub-
Account, including any net earnings and gain thereon.
138
(e) A Participant who has withdrawn 100% of his Voluntary
Member and Basic Member Contributions Sub-Accounts including any
net earnings and gain thereon, may elect to withdraw 100% of his
PAYSOP Sub-Account, including any net earnings and gain thereon.
(f) A Participant who is at least 59-1/2 years old, or who
has demonstrated the existence of a Hardship (as defined in
paragraph (j) below), and who has withdrawn 100% of his Voluntary
Member and Basic Member Contributions Sub-Accounts and 100% of
his PAYSOP Sub-Account, may elect to withdraw 25%, 50%, 75% or
100% of his Voluntary Employer Contributions Sub-Account,
including any net earnings and gain thereon earned through
December 31, 1988; provided, however, that in the case of any
Hardship withdrawal, the amount withdrawn pursuant to this
paragraph shall be determined without regard to the percentages
set forth in this paragraph and shall in no event exceed the
amount necessary to relieve the Hardship.
(g) A Participant who is at least 59-1/2 years old, or who
has demonstrated the existence of a Hardship (as defined in
paragraph (j) below), and who has withdrawn 100% of his Voluntary
Contributions and Basic Member Contributions Sub-Accounts and
100% of his PAYSOP Sub-Account pursuant to subsections (a)
through (f) may elect to withdraw 25%, 50%, 75% or 100% of his
Basic Employer Contributions Sub-Account, including any net
earnings and gain thereon earned through December 31, 1988;
provided, however, that in the case of any Hardship withdrawal,
the amount withdrawn pursuant to this paragraph shall be
determined without regard to the percentages set forth in this
paragraph and shall in no event exceed the amount necessary to
relieve the Hardship.
(h) A Participant who has withdrawn 100% of his Voluntary
Contributions and Basic Contributions Sub-Accounts and 100% of
his PAYSOP Sub-Account in accordance with (and as permitted by)
paragraphs (a) through (g) of this Section may elect to withdraw
25%, 50%, 75% or 100% of his Matching Employer Contributions Sub-
Account in which he has a vested interest, including any net
earnings and gain thereon.
(i) If a Participant makes a withdrawal under
paragraphs (f) and/or (g) of this Section on account of a
Hardship, such withdrawal shall be subject to the following
rules:
(i) Each request for such a withdrawal must be made by
written application to the Committee supported by such
evidence as the Committee may require;
(ii) Each withdrawal shall be an account of a Hardship (as
defined in paragraph (j)) suffered by the Participant;
(iii) The amount withdrawn shall not be in excess of the
immediate and heavy financial need of the
Participant, which need shall be deemed to include
139
any amounts necessary to satisfy any Federal,
state or local income taxes or penalties
reasonably expected to be incurred by the
Participant as a result of the withdrawal;
(iv) The Participant shall first obtain all distributions,
other than hardship distributions, and all nontaxable
loans currently available under the Plan and all other
plans maintained by the Company or any Affiliated
Employer;
(v) The Participant's elective contributions and employee
contributions (as defined in Treasury Regulation
Section 1.401(k)) shall be suspended under the Plan and
all other plans maintained by the Company or any
Affiliated Employer for twelve (12) months after his
receipt of the Hardship withdrawal; and
(vi) The Participant may not make elective contributions (as
defined in Treasury Regulation Section 1.401(k)) under
the Plan or any other plan maintained by the Company or
any Affiliated Employer for the Participant's taxable
year immediately following the taxable year of the
Hardship withdrawal in excess of the applicable limit
under Code Section 402(g) for such next taxable year
less the amount of such Participant's elective
contributions for the taxable year of the Hardship
withdrawal.
(j) For purposes of this Section and Section 7.12, a
distribution will be on account of Hardship if it is needed for:
(i) medical expenses described in Section 213(d) of the Code
previously incurred by, or expected to be incurred by, the
Participant, his spouse, or any of his dependents (as defined in
Section 152 of the Code) or necessary for any of these persons to
obtain medical care (as defined in Section 213(d) of the Code);
(ii) payment of tuition and related educational fees for the next
twelve months of post-secondary education for the Participant,
his spouse, or any of his dependents (as defined in Section 152
of the Code); (iii) the purchase (excluding mortgage payments) of
a principal residence for the Participant; or (iv) the need to
prevent the eviction of the Participant from his principal
residence or foreclosure on the mortgage of the Participant's
principal residence.
(k) A Participant who has made a withdrawal pursuant to
this Section and desires to resume having Earnings Deferral and
Matching Contributions made for him, after the expiration of the
periods provided in clauses v and vi of paragraph (i) above shall
execute and file with the Committee a Long-Term Savings Agreement
and any other forms required by the Committee, no later than the
fifteenth day of the month preceding the beginning of any
succeeding Wage Payment Period. In the event a Participant makes
either concurrent or consecutive withdrawals under more than one
of such paragraphs of this Section 7.7, the periods provided in
140
such paragraphs shall run concurrently, with each period
commencing on the effective date of the applicable withdrawal.
7.8 WITHDRAWALS FROM XXXXXX ACCOUNT. A Participant for
whom a Xxxxxx Account has been established under this Plan and who is
at least 59-1/2 years old may elect to withdraw all or any portion of
his Xxxxxx Account. Such withdrawal shall be effective as of the
first day of any month if written notice is received by the Committee
no later than the fifteenth day of the preceding month.
7.9 WITHDRAWALS FROM XXXXXXX ACCOUNT. (a) A Participant
for whom a Xxxxxxx Account has been established under the Plan and who
is at least 59-1/2 years old may elect to withdraw all or any portion
of his Xxxxxxx Account. Such withdrawal shall be effective as of the
first day of any month if written notice is received by the Committee
no later than the fifteenth day of the preceding month.
(b) A Participant for whom a Xxxxxxx Account has been
established under the Plan and who has demonstrated the existence of a
Hardship (as defined in paragraph 7.7(j)) may elect a withdrawal from
his Xxxxxxx Account; provided, however, that in the case of any
Hardship withdrawal, the amount withdrawn pursuant to this paragraph
shall be made in accordance with paragraphs 7.7(i) and (k) and shall
in no event exceed the amount necessary to relieve the Hardship.
7.10 WITHDRAWALS FROM SAVINGS ACCOUNT. A Participant who is
at least 59-1/2 years old may elect to withdraw from his Savings
Account all or any portion of the Adjusted Balance thereof. Such
withdrawal shall be effective as of the first day of any month if
written notice is received by the Committee no later than the
fifteenth day of the preceding month.
7.11 WITHDRAWALS FROM INTERCRAFT ACCOUNT. (a) A Participant
for whom an Intercraft Account has been established under the Plan and
who is at least 59-1/2 may elect to withdraw all or any portion of his
Intercraft Account, other than those amounts in the Intercraft Account
attributable to (i) discretionary employer contributions made pursuant
to Section 4.1 of the Intercraft Profit Sharing Plan and (ii)
contributions made under the Intercraft Retirement Program. Such
withdrawal shall be effective as of the first day of any month if
written notice is received by the Committee no later than the
fifteenth day of the preceding month.
(b) A Participant for whom an Intercraft Account has been
established under the Plan and who has demonstrated the existence of a
Hardship (as defined in paragraph 7.7(j)) may elect a withdrawal from
his Intercraft Account of amounts other than those attributable to the
Intercraft Retirement Program; provided, however, that in the case of
any Hardship withdrawal, the amount withdrawn pursuant to this
paragraph shall be made in accordance with paragraphs 7.7(i) and (k)
and shall in no event exceed the amount necessary to relieve the
Hardship.
(c) A Participant for whom an Intercraft Account has been
established under the Plan and who is at least 65 may elect to
141
withdraw all or any portion of his Intercraft Plan attributable to
discretionary employer contributions made pursuant to Section 4.1 of
the Intercraft Profit Sharing Plan. Such withdrawal shall be
effective as of the first day of any month if written notice is
received by the Committee no later than the fifteenth day of the
preceding month.
7.12 WITHDRAWALS FROM LEVOLOR ACCOUNT. (a) A Participant
for whom a Levolor Account has been established under the Plan and who
is at least 59-1/2 may elect to withdraw all or any portion of his
Levolor Account, other than those amounts in the Levolor Account
attributable to discretionary employer contributions made under the
Levolor Plan. Such withdrawal shall be effective as of the first day
of any month if written notice is received by the Committee no later
than the fifteenth day of the preceding month.
(b) A Participant for whom a Levolor Account has been
established under the Plan and who has demonstrated the existence of a
Hardship (as defined in paragraph 7.7(j)) may elect a withdrawal from
his Levolor Account; provided, however, that in the case of any
Hardship withdrawal, the amount withdrawn pursuant to this paragraph
shall be made in accordance with paragraphs 7.7(i) and (k) and shall
in no event exceed the amount necessary to relieve the Hardship.
(c) A Participant for whom a Levolor Account has been
established under the Plan and who is at least 65 may elect to
withdraw all or any portion of his Levolor Plan attributable to
discretionary employer contributions made under the Levolor Plan.
Such withdrawal shall be effective as of the first day of any month if
written notice is received by the Committee no later than the
fifteenth day of the preceding month.
7.13 RULES GOVERNING IN-SERVICE DISTRIBUTIONS. (a) In the
event a Participant requests to receive a distribution pursuant to
Sections 7.6, 7.7, 7.8, 7.9, 7.10, 7.11 or 7.12, and the distribution
is approved if necessary, the distribution shall be paid to the
Participant as soon as is reasonably practicable upon receipt of the
written request for such distribution. If a Participant's termination
of employment with all Employers occurs after an election is made in
accordance with those Sections, but prior to distribution of the full
amount elected, such election shall be automatically void and the
benefits he or his Surviving Spouse or Beneficiary are entitled to
receive under the Plan shall be distributed in accordance with the
other provisions of this Article.
(b) A Participant may not make more than one withdrawal per
Plan Year pursuant to each of Section 7.6, 7.7, 7.8, 7.9, 7.10, 7.11
or 7.12.
7.14 DISTRIBUTION OF UNALLOCATED CONTRIBUTIONS. (a) If on
the date of termination of a Participant's employment, the
Participant's Employer shall be holding a Rollover Contribution made
by the Participant, but not yet allocated to his Transfer Account,
such Employer shall pay such amounts either directly to the Partici-
pant (or his Beneficiary or Surviving Spouse, as the case may be) or
142
to the Trustee, to be distributed by the Trustee in accordance with
Section 7.5.
(b) If on the date of termination of a Participant's
employment, a Participant's Earnings have been reduced by any amount
pursuant to a Long-Term Savings Agreement, or a Matching Contribution
has been made on behalf of such Participant pursuant to Section
4.1(a), and any such amount has not yet been allocated to his Savings
Account or Matching Contributions Account (whichever is applicable),
the Participant's Employer shall pay such amounts to the Trustee to be
credited to the Participant's Savings Account or Matching
Contributions Account (whichever is applicable), to be distributed by
the Trustee in accordance with Section 7.5.
7.15 ADMINISTRATIVE POWERS RELATING TO PAYMENTS. If a
Participant, Beneficiary, or Surviving Spouse, is under a legal
disability or, by reason of illness or mental or physical disability,
is in the opinion of the Committee unable properly to attend to his
personal financial matters, the Trustee may make such payments in such
of the following ways as the Committee shall direct:
(a) directly to such Participant, Beneficiary, or Surviving
Spouse;
(b) to the legal representative of such Participant,
Beneficiary, or Surviving Spouse; or
(c) to some relative by blood or marriage, or friend, for
the benefit of such Participant, Beneficiary or Surviving Spouse.
Any payment made pursuant to this Section shall be in complete
discharge of the obligation therefor under the Plan.
7.16 DISTRIBUTIONS FROM SAVINGS ACCOUNT. Notwithstanding
anything to the contrary contained elsewhere in the Plan, a
Participant's Savings Account, that portion of his Anchor Account
attributable to Basic Employer Contributions and Voluntary Employer
Contributions (as defined in the Anchor Plan), that portion of his
Xxxxxx Account attributable to elective deferrals (within the meaning
of the Xxxxxx Plan), that portion of his Xxxxxxx Account attributable
to elective deferrals (within the meaning of the Xxxxxxx Plan), that
portion of his Intercraft Account attributable to elective deferrals
(within the meaning of the Intercraft Profit Sharing Plan) and that
portion of his Levolor Account attributable to elective deferrals
(within the meaning of the Levolor Plan) shall not be distributable
other than upon:
(a) the Participant's separation from service, death, or
disability;
(b) termination of the Plan without establishment or
maintenance of another defined contribution plan (other than an
employee stock ownership plan as defined in Section 4975(e)(f) of
the Code);
143
(c) the date of the sale or other disposition by the
Participant's Employer to an unrelated corporation of
substantially all of the assets (within the meaning of Sec-
tion 409(d)(2) of the Code) used by such Employer in a trade or
business of the Employer, but only if (i) the Participant is
employed by such trade or business and continues employment with
the entity acquiring such assets, and (ii) the Company continues
to maintain the Plan after the sale or other disposition. The
sale of 85% of the assets used in the trade or business shall be
deemed a sale of "substantially all" of the assets used in such
trade or business;
(d) the date of the sale by the Participant's Employer of
such Employer's interest in a subsidiary (within the meaning of
Section 409(d)(3) of the Code), but only if (i) the Participant
is employed by such subsidiary and continues employment with such
subsidiary following such sale, and (ii) the Company continues to
maintain the Plan after the sale or other disposition;
(e) the Participant's attainment of age 59-1/2; or
(f) the Participant's Hardship (in the case of a
distribution from a Participant's Anchor Account, Xxxxxxx
Account, Intercraft Account and Levolor Account).
Notwithstanding anything to the contrary contained herein, an event
shall not be treated as described in clauses (b), (c) or (d) above
with respect to any Participant unless the Participant receives a lump
sum distribution (as defined in Section 401(k)(10)(B)(ii) of the Code)
by reason of the event. Nothing in this Section is intended to expand
the instances in which distributions may be made to Participants.
This Section is included in the Plan solely to set forth the
restrictions of Section 401(k) of the Code.
ARTICLE VIII
LOANS TO PARTICIPANTS
---------------------
8.1 LOANS TO PARTICIPANTS. (a) The Committee shall direct
the Trustee to make a loan to active Participants, and, to the extent
not inconsistent with Section 401(a) of the Code, to former
Participants who are parties in interest (as defined in Section 3(14)
of ERISA) and who retain account balances under the Plan pursuant to
Section 7.5(b) ("Former Participants"), applied for pursuant to the
terms of this Article. No more than one such loan may be outstanding
from the Plan to any Participant at any time. Such loan shall be in
an amount which does not exceed the amount set forth in Section 8.2
below. A loan shall be made on the written application of the
Participant to the Committee and on such terms and conditions as are
set forth in this Section 8.1 and Sections 8.2 and 8.3 below. In
making such loans the Committee shall pursue uniform policies and
shall not discriminate in favor of or against any Participant or group
of Participants.
144
(b) Each borrowing Participant shall, as a condition to
receiving a loan hereunder, specify in his loan application the
Investment Funds in which each of his Accounts are invested from which
such loan shall be paid. Each such loan shall be made in accordance
with the specification of the borrowing Participant except that if any
Investment Fund imposes any restriction or penalty on a distribution,
the loan shall be paid from the Investment Funds in such manner as
will comply with such restriction and avoid such penalty. Principal
and interest payments on a loan shall be allocated among Investment
Funds in accordance with subsection 8.4(e).
(c) The Committee may impose such additional uniform and
nondiscriminatory administrative requirements upon Participants
applying for loans as the Committee may determine.
8.2 MAXIMUM LOAN AMOUNT. (a) In no event shall any loan
made pursuant to this Article to any Participant be in an amount which
shall cause the outstanding aggregate balance of all loans made to
such Participant under this Plan and all other qualified employer
plans (as defined in Section 72(p)(4)(A) of the Code) maintained by
the Participant's Employer to exceed the lesser of:
(i) $50,000, reduced by the excess (if any) of:
(A) the highest outstanding balance of loans from the
Plan and such plans to the Participant during the one-year
period ending on the day before the date such loan is made,
over
(B) the outstanding balance of loans from the Plan and
such plans to the Participant on the date on which such loan
is made; or
(ii) fifty percent (50%) of the vested portion of the
Adjusted Balance of the Participant's Accounts. For purposes of
this clause, the Adjusted Balance of the Accounts of the
Participant shall be determined as of the valuation of such
Accounts most recently available as of the date the loan is
effective.
8.3 REPAYMENT OF LOANS. Any loan made under this Article
shall mature and be payable in full on a date elected by the borrowing
Participant that (a) in the case of a loan which does not exceed
$2,000, is within three (3) years from the date such loan is made, (b)
in the case of a loan which exceeds $2,000, but does not exceed
$3,000, is within four (4) years from the date such loan is made, and
(c) in the case of a loan which exceeds $3,000, is within five (5)
years from the date such loan is made. Notwithstanding the foregoing,
in the case of a loan used to acquire any dwelling unit that within a
reasonable time after the loan is made is to be used (determined at
the time the loan is made) as the Participant's principal residence,
the terms specified in clauses (a) and (b) above apply, but in
addition, such loans shall mature and be payable on the date elected
by the borrowing Participant that (i) in the case of such a loan which
exceeds $3,000, but does not exceed $4,000, is within five (5) years
145
from the date such loan is made, (ii) in the case of such a loan which
exceeds $4,000, but does not exceed $5,000, is within six (6) years
from the date such loan is made, (iii) in the case of such a loan
which exceeds $5,000, but does not exceed $6,000, is within seven (7)
years from the date such loan is made, (iv) in the case of such a loan
which exceeds $6,000, but does not exceed $7,000, is within eight (8)
years from the date the loan is made, (v) in the case of such a loan
which exceeds $7,000, but does not exceed $8,000, is within nine (9)
years from the date the loan is made, and (vi) in the case of such a
loan which exceeds $8,000, is within ten (10) years from the date the
loan is made.
8.4 TERMS. (a) Loans to Participants shall be made
according to the following terms:
(i) the minimum principal amount of any loan, at the time
it is made, shall be $1,000.
(ii) proceeds of the loan shall be disbursed to a Partici-
pant no later than sixty (60) days after he has applied for the
loan in accordance with procedures established by the Committee;
(iii) each loan shall be adequately secured, provided
that such security shall not include a portion in excess of fifty
percent (50%) of the vested portion of the Adjusted Balance of
the Participant's Accounts as of the date the loan is effective;
(iv) interest shall be charged on a loan at a rate that is
commensurate with the interest rates charged by persons in the
business of lending money for loans that would be made under
similar circumstances. The Committee shall determine a
reasonable rate of interest based on the foregoing;
(v) payments of principal and interest shall be made
through payroll deductions, which deductions shall be irrevocably
authorized by the borrowing Participant in writing on a form
supplied by the Committee at the time the loan is made to him,
and such payroll deductions shall be sufficient to amortize the
principal and interest payable pursuant to the loan during the
term thereof on a substantially level basis in equal installments
(but not less frequently than quarterly). In the case of a
Former Participant, payment of principal and interest shall be
made by personal payment in quarterly or more frequent
installments according to procedures established by the
Committee;
(vi) the borrowing Participant shall have the right to
prepay all (but not a portion) of the interest and principal of
such loan without penalty;
(vii) the loans shall be evidenced by such forms of
obligations, and shall be made upon such additional terms as to
default, prepayment, security and otherwise as the Committee
shall determine; and
146
(viii) the Committee may charge a borrowing Participant
reasonable administrative fees (payable to the Plan), on a
nondiscriminatory basis, with respect to each loan.
(b) The entire unpaid balance of any loan made under this
Article and all interest due thereon, including all arrearages
thereon, shall immediately become due and payable without further
notice or demand, if with respect to the borrowing Participant, any of
the following events of default occurs:
(i) any payment of principal and/or accrued interest on the
loan remains due and unpaid for a period of thirty (30) days
after the same becomes due and payable under the terms of the
loan;
(ii) a proceeding in bankruptcy, receivership or insolvency
is commenced by or against the borrowing Participant;
(iii) the employment of the borrowing Participant with
all Employers is terminated for any reason and the Participant
does not become a Former Participant (except to the extent
inconsistent with Section 401(a) of the Code); provided, however,
that in the case of a Participant who terminates employment with
an Employer but immediately commences employment with the
purchaser of substantially all of the stock or assets of such
Employer and continues employment with such purchaser, any such
unpaid balance shall become due and payable pursuant to this
subsection (b) upon the expiration of a reasonable period of time
(as prescribed by the Committee) following the purchase of the
Employer's stock or assets. During such period, the Participant
shall continue to make payments of the principal and interest
through payroll deductions pursuant to subsection 8.3(v) of the
Plan, or by such other method deemed appropriate by the
Committee.
(iv) the borrowing Participant attempts to make an
assignment, for the benefit of creditors, of any security for the
loan; or
(v) the borrowing Participant becomes a Former Participant
and thereafter receives a distribution of the vested portion of
the Adjusted Balance of his Accounts (except to the extent
inconsistent with Section 401(a) of the Code).
Any payments of principal and/or interest on the loan not paid when
due shall bear interest thereafter, to the extent permitted by law, at
the rate specified by the terms of the loan. The payment and
acceptance of any sum or sums at any time on account of the loan after
an event of default, or any failure to act or enforce the rights
granted hereunder upon an event of default, shall not be a waiver of
the right of acceleration set forth in this paragraph.
(c) If an event of default and an acceleration of the
unpaid balance of the loan and interest due thereon shall occur, the
Committee shall direct the Trustee to pursue any remedies available to
147
a creditor at law or under the terms of the loan, including the right
to execute on the security for the loan; provided, however, that
neither the Trustee nor the Committee may execute on any amount in the
borrowing Participant's Savings Account at any time prior to the time
that a distribution of the Account could occur consistent with the
provisions of Section 7.14 of the Plan.
(d) Each such loan shall be a first lien against the vested
portion of the Adjusted Balances of the Accounts of the borrowing
Participant, unless the Committee shall accept other security. If:
(i) any portion of a loan shall be outstanding; and (ii) an event
occurs pursuant to which the Participant or his estate or his Bene-
ficiaries will receive a distribution or withdrawal from the Accounts
of such Participant under the provisions of the Plan, then such
distribution or withdrawal shall, to the extent necessary to liquidate
the unpaid portion of the loan, be made to the Trustee as payment on
the loan or loans. No distribution or withdrawal shall be made to a
Participant or his estate or his Beneficiaries from his Accounts in an
amount greater than the excess of the portion of his Accounts
otherwise distributable over the aggregate of the amounts owing with
respect to such loan plus interest, if any, thereon.
(e) All loans made pursuant to this Article shall be funded
from the vested portion of the Adjusted Balance of the borrowing
Participant's Accounts as set forth in Section 8.2(b). The Accounts
of a Participant shall, to the extent used to fund such loan, not
participate in the allocation of earnings and losses pursuant to Sec-
tion 6.9 or Article XI. All principal and interest paid by a
Participant with respect to a loan shall be credited to the borrowing
Participant's Accounts and shall not be allocated pursuant to Section
6.9 as earnings of the Investment Funds. All payments of principal
and interest made by a Participant with respect to a loan shall be
allocated to one or more of the Investment Funds in the same ratio as
the allocation of the Participant's Earnings Deferral Contributions to
such Investment Funds, which is in effect pursuant to Section 11.3 at
the time such payment is received by the Trustee. If no allocation
direction is in effect at the time such payment is received, the
payments shall be allocated based upon the last such allocation
direction which was in effect for such Participant. If no such
allocation direction was in effect at any time, such payment shall be
allocated on a pro rata basis to each of the Investment Funds
described in the schedule attached to the Trust Agreement.
ARTICLE IX
PLAN ADMINISTRATION
-------------------
9.1 COMPANY RESPONSIBILITY. The Company shall be respon-
sible for and shall control and manage the operation and
administration of the Plan. It shall be the "Plan Administrator" and
"Named Fiduciary" for purposes of ERISA and shall be subject to
service of process on behalf of the Plan. The Company shall appoint a
Committee of two or more persons to be known as the Retirement
148
Committee and to act on behalf of the Company in performing these
duties. The Company shall advise the Trustee in writing of the names
of the Committee members and of changes in membership from time to
time.
9.2 POWERS AND DUTIES OF COMMITTEE. The Committee shall
administer the Plan in accordance with its terms and shall have all
powers necessary to carry out the provisions of the Plan. The
Committee shall direct the Trustee concerning all payments which shall
be made out of the Trust pursuant to the Plan. The Committee shall
interpret the Plan and shall determine all questions arising in the
administration, interpretation, and application of the Plan, including
but not limited to, questions of eligibility and the status and rights
of Participants, Beneficiaries, Surviving Spouses and other persons.
Any such determination by the Committee shall presumptively be
conclusive and binding on all persons. The regularly kept records of
an Employee's Employer shall be conclusive and binding upon all
persons with respect to an Employee's age, time and amount of Com-
pensation and Earnings and the manner of payment thereof, and all
other matters contained therein relating to Employees. All rules and
determinations of the Committee shall be uniformly and consistently
applied to all persons in similar circumstances.
9.3 RECORDS AND REPORTS OF COMMITTEE. The Committee shall
keep all such books of account, records, and other data as may be
necessary for proper administration of the Plan. The Committee shall
notify the Trustee of any action taken by the Committee and, when
required, shall notify any other interested person or persons.
9.4 ORGANIZATION AND OPERATION OF COMMITTEE. (a) The Com-
mittee shall act by majority vote of its members at the time in
office, and such action may be taken either by a vote at a meeting or
in writing without a meeting. The signature of any one of the members
will be sufficient to authorize Committee action.
(b) The Committee may authorize any one of the members or
any other person to execute any document on behalf of the Committee,
in which event the Committee shall notify the Trustee in writing of
such action and the name or names of such member or person. The
Trustee thereafter shall accept and rely upon any document executed by
such member or persons as representing action by the Committee, until
the Committee shall file with the Trustee a written revocation of such
designation.
(c) The Committee may adopt such bylaws and regulations as
it deems desirable for the conduct of its affairs and may appoint such
accountants, counsel, specialists, and other persons as it deems
necessary or desirable in connection with the administration of the
Plan. The Committee shall be entitled to rely conclusively upon, and
shall be fully protected by the Company in any action taken by it in
good faith in relying upon, any opinions or reports that shall be
furnished to it by any such accountant, counsel, or other specialist.
9.5 CLAIMS PROCEDURE. Claims for benefits under the Plan
shall be made in writing to the Committee. In the event a claim for
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benefits is wholly or partially denied by the Committee, the Committee
shall, within a reasonable period of time, but no later than ninety
(90) days after receipt of the claim, notify the claimant in writing
of the denial of the claim. If the claimant shall not be notified in
writing of the denial of the claim within ninety (90) days after it is
received by the Committee, the claim shall be deemed denied. A notice
of denial shall be written in a manner calculated to be understood by
the claimant, and shall contain (a) the specific reason or reasons for
denial of the claim, (b) a specific reference to the pertinent Plan
provisions upon which the denial is based, (c) a description of any
additional material or information necessary for the claimant to
perfect the claim, together with an explanation of why such material
or information is necessary, and (d) an explanation of the Plan's
review procedure. Within sixty (60) days of the receipt by the
claimant of the written notice of denial of the claim, or within sixty
(60) days after the claim is deemed denied as set forth above, if ap-
plicable, the claimant may file a written request with the Committee
that it conduct a full and fair review of the denial of the claimant's
claim for benefits, including the conducting of a hearing, if deemed
necessary by the Committee. In connection with the claimant's appeal
of the denial of his benefit, the claimant may review pertinent
documents and may submit issues and comments in writing. The
Committee shall render a decision on the claim appeal promptly, but
not later than sixty (60) days after the receipt of the claimant's
request for review, unless special circumstances (such as the need to
hold a hearing, if necessary), require an extension of time for
processing, in which case the sixty (60) day period may be extended to
one hundred and twenty (120) days. The Committee shall notify the
claimant in writing of any such extension. The decision upon review
shall (a) include specific reasons for the decision, (b) be written in
a manner calculated to be understood by the claimant and (c) contain
specific references to the pertinent Plan provisions upon which the
decision is based.
9.6 EXPENSES. All proper expenses related to the Trustee
and recordkeeping fees in connection with the operation of the Plan,
including check charges for distributions made under Article VII of
the Plan, shall be paid by the Company. Costs relating to de minimis
corrective adjustments to Participants' Accounts or Investment Funds
shall be deemed administrative expenses of the Plan and shall first be
paid out of forfeitures allocable under Section 6.10, and then out of
amounts described in subsection 6.9(c). All other costs, including
costs and expenses of litigation involving the Plan and losses, if
any, of the Plan of any kind or character, shall be deemed expenses of
the Plan and shall be borne by the Plan, and paid out of the Plan
assets, except to the extent the Board elects to have such expenses
paid directly by the Company.
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ARTICLE X
TRUST AGREEMENT
---------------
10.1 ESTABLISHMENT OF TRUST. A Trust has been created and
shall be maintained for the purposes of the Plan. All contributions
under the Plan shall be paid into the Trust. The Trust Fund shall be
held, invested and disposed of by the Trustee from time to time acting
in accordance with the Trust Agreement. All withdrawals and
distributions payable under the Plan shall be paid solely from the
Trust Fund.
ARTICLE XI
INVESTMENT FUNDS
----------------
11.1 INVESTMENT FUNDS. The Adjusted Balance of each Parti-
cipant's Savings Account, Transfer Account, Matching Contributions
Account, Rogers Account, Xxxxxxx Account, Anchor Account, Intercraft
Account and Levolor Account shall be invested in the various
Investment Funds described in the schedule attached to the Trust
Agreement.
11.2 INITIAL INVESTMENT. All Earnings Deferral
Contributions, Matching Contributions and Rollover Contributions
received by the Trustee shall be allocated among the Investment Funds
no later than the close of business of the business day next following
receipt by the Trustee of such Contributions in accordance with
Participants' selection of Investment Funds pursuant to Section 11.3.
In the event that Contributions cannot be allocated among the
Investment Funds on the business day next following receipt by the
Trustee, such Contributions shall be initially invested in such short
term investment obligations as are selected by the Trustee pending
such allocation.
11.3 SELECTION OF INVESTMENT FUNDS. (a) Each Participant
shall complete an investment election form provided by the Committee
directing that his Earnings Deferral Contributions, Matching
Contributions and Rollover Contribution be invested, in specified
multiples of ten percent (10%), in any of the Investment Funds.
(b) Each Participant shall have the right to modify the
direction made in paragraph (a) above with respect to subsequent
Earnings Deferral Contributions, Matching Contributions and Rollover
Contributions under the Plan.
(c) Each Participant shall have the right to direct that
the portion of his Savings Account, Transfer Account, Matching
Contributions Account, Rogers Account, Xxxxxxx Account, Anchor
Account, Intercraft Account and Levolor Account held in any one
Investment Fund be transferred, in whole or in part, to any other
151
Investment Fund. This direction shall not be made more than one time
each month, and shall be made by designating the whole percentage of
the Adjusted Balance of such Accounts that is to be divided among the
various applicable Funds as of the date set forth in paragraph (d)
next below.
(d) Any direction by a Participant pursuant to this Section
shall be given to the Committee or to the recordkeeper acting on
behalf of the Trustee. Any such direction given to the Committee
shall be effective as of the Participant's next Wage Payment Period
designated by him if such direction, on such forms as shall be
required by the Committee is received within a reasonable time, as
prescribed by the Committee, prior to the beginning of such Period.
Any such direction given to the recordkeeper shall be pursuant to
rules it establishes, and shall be given no later than the close of
business on the business day preceding the business day for which such
direction is to be given effect.
(e) The recordkeeper as shall be appointed by the Committee
shall separately account for the interests of each Participant in the
several Investment Funds. Each Investment Fund may be invested as a
single fund, however, without segregation of Fund assets to represent
the interests of Participants.
(f) The portion of any Account invested in the Xxxxxx
Common Stock Fund will be charged a fee of $.05 per each equivalent
share of Xxxxxx Common Stock at the time it is credited to such
Account.
11.4 INVESTMENT OF ANCHOR ACCOUNT. (a) Within a reasonable
time prior to January 1, 1989, each Participant who was expected to
have an Anchor Account established under the Plan was given the
opportunity to direct that his Anchor Account be invested, in
specified multiples of ten percent (10%), in any of the Investment
Funds.
(b) Each Participant for whom an Anchor Account has been
established shall have the right to direct a transfer of amounts held
in any one Investment Fund to any other Investment Fund in accordance
with the provisions of Section 11.3(c).
11.5 REGISTRATION OF XXXXXX COMMON STOCK. All shares of
Xxxxxx Common Stock acquired by the Trustee shall be held in the
possession of the Trustee until disposed of pursuant to provisions of
the Plan and Trust. Such securities may be registered in the name of
the Trustee or its nominee or deposited with a depository.
11.6 INVESTMENT OF ROGERS ACCOUNT. (a) Within a reasonable
time prior to the transfer of assets from the Rogers Plan, each
Participant who was expected to have a Rogers Account established
under the Plan was given the opportunity to direct that his Rogers
Account be invested, in specified multiples of ten percent (10%), in
any of the Investment Funds.
152
(b) Each Participant for whom a Rogers Account has been
established shall have the right to direct a transfer of amounts held
in any one Investment Fund to any other Investment Fund in accordance
with the provisions of Section 11.3(c).
11.7 INVESTMENT OF XXXXXXX ACCOUNT. (a) Within a
reasonable time prior to the transfer of assets from the Xxxxxxx Plan,
each Participant who was expected to have a Xxxxxxx Account
established under the Plan was given the opportunity to direct that
his Xxxxxxx Account be invested, in specified multiples of ten percent
(10%), in any of the Investment Funds.
(b) Each Participant for whom a Xxxxxxx Account has been
established shall have the right to direct a transfer of amount held
in any one Investment Fund to any other Investment Fund in accordance
with the provisions of Section 11.3(c).
11.8 INVESTMENT OF INTERCRAFT ACCOUNT. (a) Within a
reasonable time prior to the transfer of assets from the Intercraft
Plan, each Participant who was expected to have an Intercraft Account
established under the Plan was given the opportunity to direct that
his Intercraft Account be invested, in specified multiples of ten
percent (10%), in any of the Investment Funds.
(b) Each Participant for whom an Intercraft Account has
been established shall have the right to direct a transfer of amounts
held in any one Investment Fund to any other Investment Fund in
accordance with the provisions of Section 11.3(c).
11.9 INVESTMENT OF LEVOLOR ACCOUNT. (a) Within a
reasonable time prior to the transfer of assets from the Levolor Plan,
each Participant who was expected to have an Levolor Account
established under the Plan was given the opportunity to direct that
his Levolor Account be invested, in specified multiples of ten percent
(10%), in any of the Investment Funds.
(b) Each Participant for whom a Levolor Account has been
established shall have the right to direct a transfer of amounts held
in any one Investment Fund to any other Investment Fund in accordance
with the provisions of Section 11.3(c).
11.10 DEFAULT OF INVESTMENT ELECTION. Any portion of a
Participant's Account that as of May 1, 1993 was invested by the
Trustee in the Xxxxxxx Xxxxx Ready Assets Fund due to the
Participant's failure to direct the investment thereof pursuant to the
terms of the Plan, to the extent identifiable, and all identifiable
earnings thereon, shall be invested in accordance with the most recent
investment election received from the Participant with respect to
other amounts in his Account. If no such investment election has been
received from the Participant, such portion of his Account shall be
divided equally and invested in each of the Investment Funds described
in the schedule attached to the Trust Agreement, subject to the
minimum amount requirements of each Fund, until such time as the
Trustee is directed otherwise by the Participant. Any portion of a
Participant's Account that as of May 1, 1993 was invested in the
153
Xxxxxxx Xxxxx Ready Assets Fund due to the Participant's failure to
direct the investment thereof pursuant to the terms of the Plan,
including the earnings thereon, that are not identifiable shall remain
invested in such Fund until the Trustee is directed otherwise by the
Participant.
ARTICLE XII
AMENDMENT AND TERMINATION
--------------------------
12.1 AMENDMENT OF PLAN. The Company shall have the right to
amend the Plan at any time and from time to time by resolution of the
Board, and all Employers and all persons claiming any interest
hereunder shall be bound thereby; provided, however, that no amendment
shall have the effect of: (i) directly or indirectly divesting the
interest of any Participant in any amount that he would have received
had he terminated his employment with all Employers immediately prior
to the effective date of such amendment, or the interest of any
Beneficiary or Surviving Spouse as such interest existed immediately
prior to the effective date of such amendment; (ii) directly or
indirectly affecting the vested interest of a Participant under the
Plan as determined by Sections 6.8 and 14.4 unless the conditions of
Section 203(c) of ERISA are satisfied; (iii) vesting in any Employer
any right, title or interest in or to any Trust assets; (iv) causing
or effecting discrimination in favor of officers, shareholders, or
Highly Compensated Eligible Employees; or (v) causing any part of the
Plan assets to be used for any purpose other than for the exclusive
benefit of the Participants and their Beneficiaries and Surviving
Spouses.
12.2 VOLUNTARY TERMINATION OF OR PERMANENT DISCONTINUANCE OF
CONTRIBUTIONS TO THE PLAN. The Company shall have the right to
terminate the Plan in whole or in part, or to permanently discontinue
contributions to the Plan, at any time by resolution of its Board and
by giving written notice of such termination or permanent discontinu-
ance to the Trustee. Such resolution shall specify the effective date
of termination or permanent discontinuance, which shall not be earlier
than the first day of the Plan Year which includes the date of the
resolution.
12.3 INVOLUNTARY TERMINATION OF PLAN. The Plan shall auto-
matically terminate if the Company is legally adjudicated a bankrupt,
makes a general assignment for the benefit of creditors, or is
dissolved. In the event of the merger or consolidation of the Company
into or with any other corporation, respectively, or in the event
substantially all of the assets of the Company shall be transferred to
another corporation, the successor corporation resulting from the con-
solidation or merger, or transfer of such assets, as the case may be,
shall have the right to adopt and continue the Plan and succeed to the
position of the Company hereunder. If, however, the Plan is not so
adopted within ninety (90) days after the effective date of such
consolidation, merger or sale, the Plan shall automatically be deemed
terminated as of the effective date of such transaction. Nothing in
154
this Plan shall prevent the dissolution, liquidation, consolidation or
merger of the Company, or the sale or transfer of all or substantially
all of its assets.
12.4 PAYMENTS ON TERMINATION OF, OR PERMANENT DISCONTINUANCE
OF CONTRIBUTIONS TO, THE PLAN. If the Plan is terminated as herein
provided, or if it should be partially terminated, or upon the
complete discontinuance of Employer contributions to the Plan, the
following procedure shall be followed, except that in the event of a
partial termination it shall be followed only in case of those
Participants, Beneficiaries and Surviving Spouses directly affected:
(a) The Committee may continue to administer the Plan, but
if it fails to do so, its records, books of account and other
necessary data shall be turned over to the Trustee and the Trustee
shall act on its own motion as hereinafter provided.
(b) Notwithstanding any other provisions of the Plan all
interests of Participants shall continue to be fully vested and
nonforfeitable.
(c) The value of the Trust Fund and the Accounts of all
Participants, Beneficiaries and Surviving Spouses shall be determined
as of the date of termination or discontinuance.
(d) Distribution to Participants, Beneficiaries and
Surviving Spouses shall be made at such time after termination of or
discontinuance of contributions to the Plan as provided in Section 7.5
above and not later than the time specified in Section 7.5.
ARTICLE XIII
MISCELLANEOUS
-------------
13.1 DUTY TO FURNISH INFORMATION AND DOCUMENTS. Partici-
pants and their Beneficiaries and Surviving Spouses must furnish to
the Committee and the Trustee such evidence, data or information as
the Committee considers necessary or desirable for the purpose of
administering the Plan, and the provisions of the Plan for each person
are upon the condition that he will furnish promptly full, true, and
complete evidence, data, and information requested by the Committee.
All parties to, or claiming any interest under, the Plan hereby agree
to perform any and all acts, and to execute any and all documents and
papers, necessary or desirable for carrying out the Plan and the
Trust.
13.2 STATEMENTS AND AVAILABLE INFORMATION. The Committee
shall advise its Employees of the eligibility requirements and
benefits under the Plan. As soon as practicable after the end of each
calendar year, the Committee shall provide each Participant, and each
former Participant and Beneficiary or Surviving Spouse with respect to
whom an Account is maintained, with a statement reflecting the
current status of his Accounts including the Adjusted Balance thereof.
155
No Participant shall have the right to inspect the records reflecting
the Account of any other Participant. The Committee shall make
available for inspection at reasonable times by Participants and Bene-
ficiaries or Surviving Spouses, copies of the Plan, any amendments
thereto, Plan summary, and all reports of Plan and Trust operations
required by law.
13.3 NO ENLARGEMENT OF EMPLOYMENT RIGHTS. Nothing contained
in the Plan shall be construed as a contract of employment between any
Employer and any person, nor shall the Plan be deemed to give any
person the right to be retained in the employ of any Employer or limit
the right of any Employer to employ or discharge any person with or
without cause, or to discipline any Employee.
13.4 APPLICABLE LAW. All questions pertaining to the
validity, construction and administration of the Plan shall be
determined in conformity with the laws of Illinois to the extent that
such laws are not preempted by ERISA and valid regulations published
thereunder.
13.5 NO GUARANTEE. None of the Trustee, the Committee and
any Employer in any way guarantees the Trust Fund from loss or
depreciation nor the payment of any benefits which may be or become
due to any person from the Trust Fund. No Participant or other person
shall have any recourse against the Trustee, the Committee or any
Employer if the Trust Fund is insufficient to provide Plan benefits in
full. Nothing herein contained shall be deemed to give any
Participant, former Participant, or Beneficiary or Surviving Spouse an
interest in any specific part of the Trust Fund or any other interest
except the right to receive benefits out of the Trust Fund in ac-
cordance with the provisions of the Plan and Trust.
13.6 UNCLAIMED FUNDS. Each Participant shall keep the Com-
mittee informed of his current address and the current address of his
Surviving Spouse, Beneficiary or Beneficiaries. None of the
Committee, the Trustee and any Employer shall be obligated to search
for the whereabouts of any person. If the location of a Participant
is not made known to the Committee within three years after the date
on which distribution of the Participant's accounts may first be made,
distribution may be made as though the Participant had died at the end
of the three-year period. If, within one additional year after such
three year period has elapsed, or, within three years after the actual
death of a Participant, the Committee is unable to locate any indi-
vidual who would receive a distribution under the Plan upon the death
of the Participant pursuant to Section 7.2 of the Plan, the Adjusted
Balance in the Participant's Account shall be deemed a forfeiture and
shall be used to reduce Matching Contributions to the Plan for the
Plan Year next following the year in which the forfeiture occurs and
for succeeding years to the extent necessary; provided, however, that
in the event that the Participant or a Beneficiary or Surviving Spouse
makes a valid claim for any amount that has been forfeited, the
benefits that have been forfeited shall be reinstated.
13.7 MERGER OR CONSOLIDATION OF PLAN. Any merger or
consolidation of the Plan with another plan, or transfer of Plan
156
assets or liabilities to any other plan, shall be effected in
accordance with such regulations, if any, as may be issued pursuant to
Section 208 of ERISA, in such a manner that each Participant in the
Plan would receive, if the merged, consolidated or transferee plan
were terminated immediately following such event, a benefit which is
equal to or greater than the benefit he would have been entitled to
receive if the Plan had terminated immediately before such event.
13.8 INTEREST NON-TRANSFERABLE. (a) Except as provided in
Article VIII of the Plan, no interest of any person or entity in, or
right to receive distributions from, the Trust Fund shall be subject
in any manner to sale, transfer, assignment, pledge, attachment,
garnishment, or other alienation or encumbrance of any kind; nor may
such interest or right to receive distributions be taken, either
voluntarily or involuntarily, for the satisfaction of the debts of, or
other obligations or claims against, such person or entity, including
claims for alimony, support, separate maintenance and claims in
bankruptcy proceedings. The Account of any Participant, however,
shall be subject to and payable in accordance with the applicable
requirements of any qualified domestic relations order, as that term
is defined in Section 206(d)(3) of ERISA, and the Committee shall
direct the Trustee to provide for payment from a Participant's Account
in accordance with such order and with the provisions of Section
206(d)(3) of ERISA and any regulations promulgated thereunder. All
such payments pursuant to a qualified domestic relations order shall
be subject to reasonable rules and regulations promulgated by the
Committee respecting the time of payment pursuant to such order and
the valuation of the Participant's Account from which payment is made;
provided, that all such payments are made in accordance with such
order and Section 206(d)(3). A payment from a Participant's Account
may be made to an alternate payee (as defined in Section 414(p)(8) of
the Code) prior to the date the Participant reaches his earliest
retirement age (as defined in Section 414(p)(4)(B) of the Code) if
such payments are made pursuant to a qualified domestic relations
order. The balance of an Account that is subject to any qualified
domestic relations order shall be reduced by the amount of any payment
made pursuant to such order.
(b) Notwithstanding paragraph (a) next above, if any
Participant borrows money pursuant to Article VIII of the Plan, the
Trustee and the Committee shall have all rights to collect upon such
indebtedness as are granted pursuant to Article VIII of the Plan and
any agreements or documents executed in connection with such loan.
13.9 PRUDENT MAN RULE. Notwithstanding any other provision
of the Plan and the Trust Agreement, the Trustee and the Committee
shall exercise their powers and discharge their duties under the Plan
and the Trust Agreement for the exclusive purpose of providing
benefits to Employees and their Beneficiaries and Surviving Spouses,
and shall act with the care, skill, prudence and diligence under the
circumstances that a prudent man acting in a like capacity and
familiar with such matters would use in the conduct of an enterprise
of a like character and with like aims. Subject to the terms of the
preceding sentence and the provisions of Article XI, the Trustee shall
diversify investments of the Trust Fund so as to minimize the risk of
157
large losses, unless under the circumstances it is clearly prudent not
to do so.
13.10 LIMITATIONS ON LIABILITY. Notwithstanding any
other provisions of the Plan or the Trust, none of the Trustees, the
Committee, any member thereof, any Employer or Affiliated Employer and
each individual acting as an employee or agent of any of them shall be
liable to any Participant, former Participant, Beneficiary, or
Surviving Spouse for any claim, loss, liability or expense incurred in
connection with the Plan or the Trust, except when the same shall have
been judicially determined to be a result of liability under Part 4 of
Title I of ERISA or due to the gross negligence or willful misconduct
of such person. The Company shall indemnify and hold harmless each
Trustee, Committee member, employee of the Company, or any individual
acting as an employee or agent of any of them or the Company (to the
extent not indemnified or held harmless under any liability insurance
or any other indemnification arrangement with respect to the Plan or
the Trust) from any and all claims, losses, liabilities, costs and
expense (including attorneys' fees) arising out of any actual or
alleged act or failure to act with respect to the administration of
the Plan or the Trust, except that no indemnification or defense shall
be provided to any person with respect to conduct which has been
judicially determined, or agreed by the parties, to have constituted
bad faith or willful misconduct on the part of such person, or to have
resulted in his receipt of personal profit or advantage to which he is
not entitled. In connection with the indemnification provided by the
preceding sentence, expenses incurred in defending a civil or criminal
action, suit or proceeding, or incurred in connection with a civil or
criminal investigation, may be paid by the Company in advance of the
final disposition of such action, suit, proceeding, or investigation,
as authorized by the Board in the specific case, upon receipt of an
undertaking by or on behalf of the party to be indemnified to repay
such amount, unless it shall ultimately be determined that he is
entitled to be indemnified by the Company pursuant to this Section.
The preceding provisions of this Section shall not apply to any
claims, losses, liabilities, costs and expenses arising out of any
actual or alleged act or failure to act of a Participant, or any
individual acting as an employee or agent of a Participant, in the
selection of investment media for his Account, or the investment of
the assets in his Account.
13.11 HEADINGS. The headings in this Plan are inserted
for convenience of reference only and are not to be considered in
construction of the provisions hereof.
13.12 GENDER AND NUMBER. Except when otherwise required
by the context, any masculine terminology in this document shall
include the feminine, and any singular terminology shall include the
plural.
13.13 ERISA AND APPROVAL UNDER INTERNAL REVENUE CODE.
This Plan is intended to qualify as a Plan and Trust meeting the
requirements of Sections 401 and 501(a) of the Code, as now in effect
or hereafter amended, so that the income of the Trust Fund may be
exempt from taxation under Section 501(a) of the Code, contributions
158
of the Company under the Plan may be deductible for Federal income tax
purposes under Section 404 of the Code, and amounts subject to Long-
Term Savings Agreements are not treated as distributed to Participants
for Federal income tax purposes under Section 402(a)(8) of the Code,
all as now in effect or hereafter amended. Any modification or
amendment of the Plan and/or Trust may be made retroactively, as
necessary or appropriate, to establish and maintain such qualification
and to meet any requirement of the Code or ERISA.
13.14 EXCLUSIVE BENEFIT OF EMPLOYEES. All contributions
made pursuant to the Plan shall be held by the Trustee in accordance
with the terms of the Trust Agreement for the exclusive benefit of
those Employees who are Participants under the Plan, including former
Participants and their Beneficiaries and Surviving Spouses, and shall
be applied to provide benefits under the Plan and to pay expenses of
administration of the Plan and the Trust, to the extent that such
expenses are not otherwise paid. At no time prior to the satisfaction
of all liabilities with respect to such Employees and their Bene-
ficiaries shall any part of the Trust Fund (other than such part as
may be required to pay administration expenses and taxes), be used
for, or diverted to, purposes other than for the exclusive benefit of
such Employees and their Beneficiaries and Surviving Spouses.
However, without regard to the provisions of this Section
13.14: (a) if any contribution under the Plan is conditioned on
initial qualification of the Plan under Section 401 of the Code and if
the Plan receives an adverse determination with respect to its initial
qualification, nothing in this Section 13.14 shall prohibit the return
of such contribution to the Employers within one calendar year after
such determination, but only if the application for determination is
made by the time prescribed by law for filing the Company's return for
the taxable year in which the Plan is adopted, or such later date as
the Secretary of the Treasury may prescribe, (b) if a contribution is
conditioned upon the deductibility of the contribution under
Section 404 of the Code, then, to the extent the deduction is
disallowed, the Trustee shall, upon written request of an Employer,
return the contribution (to the extent disallowed), to the Employer
within one year after the date the deduction is disallowed; and (c) if
a contribution or any portion thereof is made by an Employer by a
mistake of fact, the Trustee shall, upon written request of the
Employer, return the contribution or such portion to the Employer
within one year after the date of payment to the Trustee; and (d)
earnings attributable to amounts to be returned to an Employer
pursuant to (b) or (c) above shall not be returned, and losses
attributable to amounts to be returned pursuant to (b) or (c) shall
reduce the amount so returned.
13.15 EXTENSION OF PLAN TO AFFILIATED EMPLOYERS.
(a) With the approval of the Board, any Affiliated Employer may adopt
the Plan and become a party to the Trust Agreement, and may qualify
its Employees to become Participants in the Plan, by taking proper
action to adopt the Plan. Any Affiliated Employer that adopts the Plan
shall become an Employer hereunder.
(b) The Plan will terminate with respect to any Affiliated
Employer that has adopted the Plan pursuant to this Section, or that
159
is listed in Appendix A hereto, if the Affiliated Employer ceases to
be an Affiliated Employer, revokes its adoption of the Plan by
appropriate corporate action, permanently discontinues its contribu-
tions on behalf of its Eligible Employees, is judicially declared
bankrupt, makes a general assignment for the benefit of creditors, or
is dissolved. If the Plan is terminated or contributions are
discontinued with respect to any Affiliated Employer the provisions of
Article XII shall apply to the interest in the Plan of the Employees
of such Affiliated Employer, and their Beneficiaries and Surviving
Spouses.
(c) The Company shall act as the agent for each Affiliated
Employer that adopts the Plan, or that is listed in Appendix A hereto,
for all purposes of administration thereof.
13.16 SECTION 16 OF THE SECURITIES EXCHANGE ACT OF 1934.
Notwithstanding anything to the contrary contained in the Plan, in no
event shall any provision hereof be given effect to the extent that
such provision may result in a violation of Section 16 of the
Securities Exchange Act of 1934 or the rules promulgated thereunder.
The Committee shall have the sole discretion to establish, adopt and
modify administrative procedures to insure compliance with Section 16
and all related rules, which procedures shall be binding on all
Participants.
13.17 SEVERABILITY. Each of the Sections contained in
the Plan shall be enforceable independently of every other Section in
the Plan, and the invalidity or nonenforceability of any Section shall
not invalidate or render nonenforceable any other section contained
herein. If any Section or provision in a Section is found invalid or
unenforceable, it is the intent of the parties that a court of
competent jurisdiction shall reform the Section or provisions to
produce its nearest enforceable economic equivalent.
ARTICLE XIV
TOP-HEAVY PROVISIONS
--------------------
14.1 TOP-HEAVY STATUS. The provisions of this Article shall
not apply to the Plan with respect to any Plan Year for which the Plan
is not Top-Heavy (except as provided in paragraphs (b) and (c) of
Section 14.4). If the Plan is or becomes Top-Heavy in any Plan Year,
the provisions of this Article XIV will supersede any conflicting
provisions elsewhere in the Plan.
14.2 DEFINITIONS. For purposes of this Article XIV, the
following words and phrases shall have the meanings stated below
unless a different meaning is plainly required by the context:
(a) "Compensation" shall, solely for purposes of this
Article XIV, have the meaning set forth in Section 414(q)(7) of the
Code. In no event shall the Compensation taken into account for a
Participant under the Plan for any Plan Year exceed (a) $200,000 (or
160
such greater amount provided pursuant to Section 401(a)(17) of the
Code), in Plan Years commencing on and after January 1, 1989 and prior
to January 1, 1994. For Plan Years commencing on and after January 1,
1994, subsections 1.14(b) through (d) shall apply with respect to
Compensation for purposes of this Article XIV.
(b) "Determination Date" shall mean, with respect to any
Plan Year: (i) the last day of the preceding Plan Year, or (ii) in the
case of the first Plan Year of the Plan, the last day of such Plan
Year.
(c) "Key Employee" shall mean an Employee meeting the
definition of "key employee" contained in Section 416(i)(1) of the
Code and the Treasury Regulations and other governmental releases
interpreting said Section. For purposes of applying such definition,
"Compensation" shall have the meaning set forth in Section 14.2(a)
above.
(d) "Non-key Employee" shall mean any Employee who is not a
Key Employee.
(e) "Permissive Aggregation Group Plan" shall mean any plan
of the Company or an Affiliated Employer that is not in the Required
Aggregation Group and that, when considered with the Required Aggre-
gation Group Plans, meets the requirements of Section 401(a)(4) and
410 of the Code.
(f) "Required Aggregation Group Plan" shall mean (1) each
plan of the Company or an Affiliated Employer in which a Key Employee
is a participant, and (2) each other plan of the Company or an
Affiliated Employer that enables any plan described in (1) to meet the
requirements of Sections 401(a)(4) and 410 of the Code.
(g) "Valuation Date" shall mean with respect to a
particular Determination Date, the most recent date for valuation of
the Investment Fund occurring within a twelve (12) month period ending
on the applicable Determination Date and used for computing Plan costs
for purposes of the minimum funding requirements of the Code.
14.3 DETERMINATION OF TOP-HEAVY STATUS. (a) The Plan will
be "Top-Heavy" with respect to any Plan Year if, as of the
Determination Date applicable to such Year, the ratio of the Adjusted
Balances in the Accounts of Key Employees (determined as of the
Valuation Date applicable to such Determination Date) to the Adjusted
Balances in the Accounts of all Employees (determined as of such
Valuation Date) exceeds sixty percent (60%). For purposes of
computing such ratio, and for all other purposes of applying and
interpreting this paragraph (a): (i) the amount of the Accounts of
any Employee shall be increased by the aggregate distributions made
with respect to such Employee under the Plan during the five-year
period ending on any Determination Date, (ii) benefits provided under
all plans that are aggregated pursuant to (b) of this Section must be
considered, and (iii) the provisions of Section 416 of the Code, and
all Treasury Regulations and other governmental releases interpreting
said Section shall be applied. If any Employee has not performed
161
services for the Company or any Affiliated Employer at any time during
the five-year period ending on any Determination Date, the balances of
the accounts of such Employee shall not be taken into consideration
for purposes of determining whether the Plan is Top-Heavy with respect
to the Plan Year to which such Determination Date applies.
(b) For purposes of determining whether the Plan is Top -
Heavy, all qualified retirement plans that are Required Aggregation
Group Plans shall be aggregated. All qualified retirement plans that
are Permissive Aggregation Group Plans shall be aggregated only to the
extent permitted by Section 416 of the Code and Treasury Regulations
promulgated thereunder elected by the Company.
14.4 VESTING. (a) If the Plan becomes Top-Heavy, the
vested interest of a Participant in the portion of his Matching
Contributions Account referred to in paragraph (d) below shall be
determined in accordance with the following formula in lieu of the
formula set forth in Section 6.8, unless the Participant would have a
greater vested interest under Section 6.8:
Vested Forfeitable
Years of Service Percentage Percentage
---------------- ---------- ------------
Fewer than 2 years 0% 100%
2 years 20% 80%
3 years 40% 60%
4 years 60% 40%
5 years or more 100% 0%
For purposes of the above schedule, years of Service shall include all
years of Service required to be counted under Section 411(a) of the
Code, disregarding all years of Service permitted to be disregarded
under Section 411(a)(4) of the Code.
(b) The vesting schedule set forth in paragraph (a) next
above shall apply to all amounts allocated to a Participant's Matching
Contributions Account while the Plan is Top-Heavy and during the
period of time before the Plan becomes Top-Heavy. This vesting
schedule shall not apply to the Matching Contributions Account of any
Employee who does not have an Hour of Service after the Plan becomes
Top-Heavy.
(c) If the Plan becomes Top-Heavy and subsequently ceases
to be Top-Heavy, the vesting schedule set forth in paragraph (a) of
this Section shall automatically cease to apply, and the vesting
provisions of Section 6.8 above shall automatically apply, with
respect to all amounts allocated to a Participant's Matching
Contributions Account for all Plan Years after the Plan Year with
respect to which the Plan was last Top-Heavy. For purposes of this
paragraph (c), this change in vesting schedules shall only be valid to
the extent that the conditions of Section 411(a)(10) of the Code are
satisfied.
162
14.5 MINIMUM CONTRIBUTION. For each Plan Year that the Plan
is Top-Heavy, each Employer will contribute and allocate to the
Savings Account of each Non-key Employee who is eligible to
participate in the Plan and is employed by such Employer on the last
day of such Plan Year an amount equal to the lesser of (i) three
percent (3%) of such Participant's Compensation (as defined in Section
14.2(a)) for such Plan Year and (ii) the largest percentage of
Employer contributions and forfeitures, as a percentage of the Key
Employee's Compensation (as defined in Section 14.2(a)), allocated to
the Savings Account of any Key Employee for such Year. The minimum
contribution allocable pursuant to this Section 14.5 will be deter-
mined without regard to any Earnings Deferral Contributions or
contributions by an Employer for any Employee under the Federal Social
Security Act. A Non-key Employee will not be excluded from an
allocation pursuant
to this Section merely because his Compensation is less than the
stated amount. A Non-key Employee who has become a Participant but
who fails to complete at least 1,000 Hours of Service in a Plan Year
in which the Plan is Top-Heavy shall not be excluded from an
allocation pursuant to this Section. A Non-key Employee who is a
Participant in the Plan and who declined to elect to have Earnings
Deferral Contributions made on his behalf under the Plan for the Plan
Year shall receive an allocation for that Plan Year pursuant to this
Section.
14.6 MAXIMUM ALLOCATION. For purposes of determining
whether the Plan would be Top-Heavy if "90%" were substituted for
"60%" each place it appears in paragraphs (1)(A) and (2)(B) of
Section 416(g) of the Code, as required by Section 416(h) of the Code,
all of the preceding provisions of this Article XV shall be applicable
except that the phrase "90%" shall be substituted for the phrase "60%"
where it appears in paragraph (a) of Section 14.3. If, pursuant to
the preceding sentence, it is determined that the Plan would be Top-
Heavy if "90%" were so substituted for "60%," then for purposes of
applying Sections 415(e) and 416(h) of the Code and Section 6.7 of the
Plan to the allocations to the Accounts of any Participant for any
Limitation Year, "1.0" shall be substituted for "1.25" in each
applicable place in paragraphs (2)(B) and (3)(B) of Section 415(e) of
the Code.
14.7 COLLECTIVE BARGAINING AGREEMENTS. The requirements of
Sections 14.4 and 14.5 shall not apply with respect to any Participant
included in a unit of employees covered by a collective bargaining
agreement between employee representatives and the Company or an
Affiliated Employer if retirement benefits were the subject of good
faith bargaining between such employee representatives and the Company
or an Affiliated Employer.
14.8 PARTICIPATION IN MORE THAN ONE PLAN. In the event that
a Participant is simultaneously covered under this Plan, at a time
when such Plan is Top-Heavy, and a defined benefit plan of the Company
or an Affiliated Employer, at a time when the plan is Top-Heavy, the
Participant shall be entitled only to the defined benefit minimum
163
under the defined benefit plan, and not to the defined contribution
minimum under this Plan.
IN WITNESS WHEREOF, the Company has caused the Plan to be
executed in its name by a duly authorized officer this 12th day of
July, 1993, effective as of May 1, 1993.
XXXXXX OPERATING COMPANY
By____________________________
164
EXHIBIT A
---------
FIRST AMENDMENT TO THE
XXXXXX XXXX TERM SAVINGS AND INVESTMENT PLAN
(As Amended and Restated Effective May 1, 1993)
WHEREAS, Xxxxxx Operating Company, a Delaware corporation,
(the "Company") maintains the Xxxxxx Xxxx-Term Savings and Investment
Plan, as Amended and Restated Effective May 1, 1993 (the "Plan"); and
WHEREAS, the Company has reserved the right to amend the
Plan and now deems it appropriate to do so;
NOW, THEREFORE, the Plan is hereby amended, effective as of
May 1, 1993, except where otherwise specifically indicated, and with
respect to each Employee who earns an Hour of Service on or after the
applicable effective date, except where otherwise specifically
indicated:
1. The first sentence of Section 1.14 of the Plan is hereby
amended to read as follows:
"'Compensation' means a Participant's total earnings from
the Company and all Affiliated Employers paid during a Plan
Year for services rendered, including the regular rate
portion of overtime pay, commissions and any lump sum
payments received in lieu of an increase in such
Participant's base pay (as agreed upon by the Company and
any collective bargaining unit during the term of the
applicable collective bargaining agreement), but excluding
any bonuses, the premium rate portion of overtime pay,
moving expenses, automobile expenses, stock options,
contributions or benefits under this Plan or any other
pension, profit sharing, insurance, hospitalization or other
plan or policy maintained by any Employer for the benefit of
such Participant, and all other extraordinary and unusual
payments."
2. Section 1.14 of the Plan is hereby amended, effective as of
January 1, 1994, by deleting the second sentence and adding a final
sentence to read as follows:
"In no event shall the Compensation taken into account for
an Employee under the Plan for any Plan Year exceed (a)
$200,000 (or such greater amount provided pursuant to
Section 401(a)(17) of the Code), in Plan Years commencing on
and after January 1, 1989 and prior to January 1, 1994."
3. Section 1.14 of the Plan is further amended, effective
January 1, 1994, by designating the first paragraph as subsection (a)
and adding new subsections (b) through (d) to read as follows:
165
"(b) In addition to other applicable limitations set
forth in the Plan and notwithstanding any other provision of
the Plan to the contrary, for Plan Years beginning on or
after January 1, 1994, the annual Compensation of each
Participant taken into account under the Plan shall not
exceed the OBRA '93 annual Compensation limit. The OBRA '93
annual Compensation limit is $150,000, as adjusted by the
Commissioner for increases in the cost of living in
accordance with Section 401(a)(17)(B) of the Code. The
cost-of-living adjustment in effect for a calendar year
applies to any period, not exceeding 12 months, over which
Compensation is determined (determination period) beginning
in such calendar year. If a determination period consists
of fewer than 12 months, the OBRA '93 annual Compensation
limit will be multiplied by a fraction, the numerator of
which is the number of months in the determination period,
and the denominator of which is 12.
(c) For Plan Years beginning on or after January 1,
1994, any reference in this Plan to the limitation under
Section 401(a)(17) of the Code shall mean the OBRA '93
annual Compensation limit set forth in this provision.
(d) If Compensation for any prior determination period
is taken into account in determining a Participant's
benefits accruing in the current Plan Year, the Compensation
for that prior determination period is subject to the OBRA
'93 annual Compensation limit in effect for that prior
determination period. For this purpose, for determination
periods beginning before the first day of the first Plan
Year beginning on or after January 1, 1994, the OBRA '93
annual Compensation limit is $150,000."
4. The second sentence of Section 1.15 of the Plan is hereby
amended, effective as of January 1, 1994, to read as follows:
"In no event shall the Earnings taken into account for an
Employee under the Plan for any Plan Year exceed (a)
$200,000 (or such greater amount provided pursuant to
Section 401(a)(17) of the Code), in Plan Years commencing on
and after January 1, 1989 and prior to January 1, 1994."
5. Section 1.15 of the Plan is further amended, effective
January 1, 1994, by designating the first paragraph as subsection (a)
and adding new subsections (b) through (d) to read as follows:
"(b) In addition to other applicable limitations set
forth in the Plan and notwithstanding any other provision of
the Plan to the contrary, for Plan Years beginning on or
after January 1, 1994, the annual Earnings of each
Participant taken into account under the Plan shall not
exceed the OBRA '93 annual Compensation limit. The OBRA '93
166
annual Compensation limit is $150,000, as adjusted by the
Commissioner for increases in the cost of living in
accordance with Section 401(a)(17)(B) of the Code. The
cost-of-living adjustment in effect for a calendar year
applies to any period, not exceeding 12 months, over which
Earnings are determined (determination period) beginning in
such calendar year. If a determination period consists of
fewer than 12 months, the OBRA '93 annual Compensation limit
will be multiplied by a fraction, the numerator of which is
the number of months in the determination period, and the
denominator of which is 12.
(c) For Plan Years beginning on or after January 1,
1994, any reference in this Plan to the limitation under
Section 401(a)(17) of the Code shall mean the OBRA '93
annual Compensation limit set forth in this provision.
(d) If Earnings for any prior determination period are
taken into account in determining a Participant's benefits
accruing in the current Plan Year, the Earnings for that
prior determination period are subject to the OBRA '93
annual Compensation limit in effect for that prior
determination period. For this purpose, for determination
periods beginning before the first day of the first Plan
Year beginning on or after January 1, 1994, the OBRA '93
annual Compensation limit is $150,000."
6. Section 1.23 of the Plan is hereby amended, effective as of
August 5, 1993, by amending subsection (c)(ii) to read as follows:
"(ii) in the case of Hours referred to in
subsections (b) above and (d) below, for the computation
period or periods in which the period during which no duties
are performed occurs;"
7. Section 1.23 of the Plan is further amended, effective as of
August 5, 1993, by adding a new subsection (d) immediately following
the paragraph designated as subsection (c), to read as follows:
"(d) Solely for purposes of determining an Employee's
eligibility to participate in the Plan under Sections 2.1
and 2.2, Hours of Service shall include an approved leave of
absence granted by an Employer to the Employee on or after
August 5, 1993 pursuant to the Family and Medical Leave Act,
if the Employee returns to work for an Employer at the end
of such leave of absence."
8. Section 1.23 of the Plan is further amended, effective as of
August 5, 1993, by inserting into the second sentence of the final
paragraph thereof the words "or (d)" after the word "(b)".
167
9. Section 1.50 of the Pan is amended, effective as of August
5, 1993, by adding a new paragraph (vi) at the end thereof to read as
follows:
"(vi) Notwithstanding anything to the contrary in
the Plan, Vesting Service shall include any period of time
during which an Employee is on an approved leave of absence
granted by an Employer to the Employee on or after August 5,
1993 pursuant to the Family and Medical Leave Act, if the
Employee returns to work for an Employer at the end of such
leave of absence."
10. Section 6.8 of the Plan is hereby amended, effective as of
October 27, 1993, by redesignating subsections (g), (h) and (i) as
subsections (h), (i) and (j), and inserting a new subsection (g) to
read as follows:
"(g) Each Participant who was employed by the Counselor Borg
Scale Company on October 27, 1993 shall be fully vested in the
Adjusted Balance of his Matching Contributions Account as of
October 27, 1993."
11. Subsection 6.8(h) of the Plan (as resdesignated pursuant to
Item 10 above) is amended, effective as of October 27, 1993, by
deleting the words "(b) or (f)" and inserting "(b), (f) or (g)" in
lieu thereof.
12. Section 7.5 of the Plan is amended, effective with respect
to distributions made on and after January 1, 1993, by adding a new
subsection 7.5(e) to read as follows:
"(e) If a distribution is one to which Sections 401(a)(11)
and 417 of the Code do not apply, such distribution may commence
less than 30 days after the notice required under section
1.411(a)-11(c) of the Income Tax Regulations is given, provided
that:
(i) the Committee clearly informs the Participant that
the Participant has a right to a period of at
least 30 days after receiving the notice to
consider the decision of whether or not to elect a
distribution (and, if applicable, a particular
distribution option), and
(ii) the Participant, after receiving the notice,
affirmatively elects a distribution."
13. Subsection 8.4(b)(iii) of the Plan is hereby amended to read
as follows:
"(iii) the employment of the borrowing Participant
with all Employers is terminated for any reason and the
168
Participant does not become a Former Participant (except to
the extent inconsistent with Section 401(a) of the Code);
provided, however, that in the case of a Participant who
terminates employment with an Employer but immediately
commences employment with the purchaser of substantially all
of the stock or assets of such Employer and continues
employment with such purchaser, any such unpaid balance
shall become due and payable pursuant to this subsection (b)
upon the expiration of a reasonable period of time (as
prescribed by the Committee) following the purchase of the
Employer's stock or assets. During such period, the
Participant shall continue to make payments of the principal
and interest through payroll deductions pursuant to
subsection 8.3(v) of the Plan, or by such other method
deemed appropriate by the Committee."
14. Subsection 14.2(a) of the Plan is hereby amended, effective
as of January 1, 1994, by adding two new sentences thereto to read as
follows:
"In no event shall the Compensation taken into account for a
Participant under the Plan for any Plan Year exceed (a)
$200,000 (or such greater amount provided pursuant to
Section 401(a)(17) of the Code), in Plan Years commencing on
and after January 1, 1989 and prior to January 1, 1994. For
Plan Years commencing on and after January 1, 1994,
subsections 1.14(b) through (d) shall apply with respect to
Compensation for purposes of this Article XIV."
169
IN WITNESS WHEREOF, the Company has caused this First Amendment
to the Plan to be executed on its behalf by its duly authorized
officer as of this 22nd day of February, 1994.
XXXXXX OPERATING COMPANY
By: ______________________________
Title ____________________________
170
SECOND AMENDMENT TO THE
XXXXXX XXXX TERM SAVINGS AND INVESTMENT PLAN
(AS AMENDED AND RESTATED EFFECTIVE MAY 1, 1993)
WHEREAS, Xxxxxx Operating Company, a Delaware corporation,
(the "Company") maintains the Xxxxxx Xxxx-Term Savings and Investment
Plan, as Amended and Restated Effective May 1, 1993 (the "Plan"); and
WHEREAS, the Company has reserved the right to amend the
Plan and now deems it appropriate to do so;
NOW, THEREFORE, the Plan is hereby amended, effective as of
the dates set forth herein, and with respect to each Employee who
earns an Hour of Service on or after the applicable effective date,
except where otherwise specifically indicated:
1. Section 1.1 of the Plan is hereby amended to read as
follows:
"Account" means all or any one of the Savings Account,
Matching Contributions Account, Transfer Account, Xxxxxx
Account, Anchor Account, Intercraft Account and/or Levolor
Account maintained by the Trustee for an individual
Participant, surviving Spouse or Beneficiary.
2. Section 1.3 of the Plan is hereby amended to read as
follows:
"Adjusted Balance" means the balance in a Participant's
Savings Account, Matching Contributions Account, Transfer
Account, Xxxxxx Account, Xxxxxxx Account, Anchor Account,
Intercraft Account or Levolor Account.
3. The first sentence of Section 1.19 of the Plan is hereby
amended, effective as of May 1, 1993, to read as follows:
"Employee" means an individual who is employed by an
Employer on or after January 1, 1989 and who is in a covered
classification of Employees, as listed on Appendix A hereto;
provided that "Employee" does not include any individual
covered under the terms and conditions of a collective
bargaining agreement to which any Employer is a party,
unless such agreement provides for the participation of such
individual.
4. The second sentence of Section 1.45 of the Plan is hereby
amended to read as follows:
In no event shall Transfer Accounts include amounts held in
the Anchor Account, the Xxxxxx Account, the Xxxxxxx Account,
the Intercraft Account or the Levolor Account.
171
5. Section 1.50 of the Plan is hereby amended by adding new
paragraphs (e) and (f) immediately following paragraph (d) to read as
follows:
(e) for an Employee who was a participant in an
Intercraft Plan, all service, if any, of an Employee with
Intercraft Corporation, or any entity that would satisfy the
definition of Affiliated Employer if Intercraft Corporation
were the Company, counted from the date on which the
Employee first commenced employment and ending on December
31, 1993.
(f) for an Employee who was a participant in the
Levolor Plan, all service, if any, of an Employee with
Levolor Corporation, or any entity that would satisfy the
definition of Affiliated Employer if Levolor Corporation
were the Company, counted from the date on which the
Employee first commenced employment and ending on September
30, 1994.
6. Section 1.50 of the Plan is hereby further amended by
redesignating paragraphs (v) and (vi) as paragraphs (vii) and (viii)
and adding new paragraphs (v) and (vi) immediately following
subsection (iv) to read as follows:
(v) If a Participant's employment under an Intercraft
Plan terminated prior to January 1,1994 and recommences with
the Company or an Affiliated Employer on or after January 1,
1994, the consequences of his absence from employment shall
be determined under the rules regarding Break in Service
contained in the Plan and not under the terms of the
Intercraft Plan.
(vi) If a Participant's employment under the Levolor
Plan terminated prior to October 1, 1994 and recommences
with the Company or an Affiliated Employer on or after
October 1, 1994, the consequences of his absence from
employment shall be determined under the rules regarding
Break in Service contained in the Plan and not under the
terms of the Levolor Plan.
7. Article I of the Plan is hereby amended by adding the
following definitions thereto:
1.53 "Intercraft Account" means the record of money and
assets held by the Trustee for an individual Participant,
Surviving Spouse or Beneficiary pursuant to the provisions
of the Plan, derived from account balances of the accounts
held under the Intercraft Profit Sharing Plan and the
Intercraft Retirement Program as of December 31, 1993. The
Intercraft Account shall consist of sub-accounts
corresponding to the various sub-accounts maintained under
the Intercraft Profit Sharing Plan and the Intercraft
Retirement Program.
172
1.54 "Intercraft Plan" means the Intercraft Company
Employees' Profit Sharing and Variable Investment Plan, as
Amended and Restated Effective January 1, 1989, including
amendments thereto (the "Intercraft Profit Sharing Plan"),
and/or the Intercraft Industries Retirement Program, as
Amended and Restated Effective September 1, 1990, including
amendments thereto (the "Intercraft Retirement Program").
1.55 "Levolor Account" means the record of money and
assets held by the Trustee for an individual Participant,
Surviving Spouse or Beneficiary pursuant to the provisions
of the Plan, derived from account balances of the accounts
held under the Levolor Plan as of September 30, 1994. The
Levolor Account shall consist of sub-accounts corresponding
to the various sub-accounts maintained under the Levolor
Plan.
1.56 "Levolor Plan" means the Levolor Profit Sharing
and 401(k) Plan, as Amended and Restated Effective September
1, 1990, including amendments thereto.
8. Section 2.1 of the Plan is hereby amended by adding a new
paragraph (d) to read as follows:
(d) Notwithstanding the above, (i) each Employee who
was employed by Intercraft Corporation on December 31, 1993
shall become an Eligible Employee on January 1, 1994; and
(ii) each Employee who was employed at the Levolor division
of the Company on September 30, 1994 shall become an
Eligible Employee on October 1, 1994.
9. Section 3.6(b) of the Plan is hereby amended, effective as
of January 1, 1994, to read as follows:
(b) Notwithstanding anything to the contrary contained
elsewhere in the Plan, if a Participant's Earnings Deferral
Contributions are returned pursuant to (a) above, any
Matching Contributions attributable thereto shall be
forfeited and shall be used as described in Section 6.10.
10. The first sentence of Section 6.1 is hereby amended to read
as follows:
The Committee shall create and maintain a separate Savings
Account, Matching Contributions Account, Transfer Account,
Xxxxxx Account, Xxxxxxx Account, Anchor Account, Intercraft
Account and Levolor Account for each Participant, as shall
be needed.
11. Section 6.8 of the Plan is hereby amended by redesignating
paragraphs (h), (i) and (j) as paragraphs (j), (k) and (l) and
inserting new paragraphs (h) and (i) thereto to read as follows:
173
(h) Each Participant who was a participant in an
Intercraft Plan shall at all times be fully vested in the
Adjusted Balance of his Intercraft Account.
(i) Each Participant who was a participant in the
Levolor Plan shall at all times be fully vested in the
Adjusted Balance of his Levolor Account.
12. Article VI of the Plan is hereby amended by adding a new
Section 6.13 to read as follows:
6.13 ACCOUNTS TRANSFERRED FROM AN INTERCRAFT PLAN. If
a Participant who was a participant in an Intercraft Plan
prior to January 1, 1994 has accounts transferred from the
Intercraft Plan to this Plan by reason of the merger of the
Intercraft Plan as of January 1, 1994, such transferred
accounts, and the earnings and losses allocable thereto,
shall be held in the Intercraft Account established in the
Participant's name under the Trust.
13. Article VI is hereby further amended by adding a new Section
6.14 to read as follows:
6.14 ACCOUNTS TRANSFERRED FROM THE LEVOLOR PLAN. If a
Participant who was a participant in the Levolor Plan prior
to October 1, 1994 has accounts transferred from the Levolor
Plan to this Plan by reason of the merger of the Levolor
Plan as of October 1, 1994, such transferred accounts, and
the earnings and losses allocable thereto, shall be held in
the Levolor Account established in the Participant's name
under the Trust.
14. The first sentence of Section 7.4 of the Plan is hereby
amended by inserting immediately after the words "Xxxxxx Account" the
words ", Intercraft Account, Levolor Account".
15. The first sentence of Section 7.5 of the Plan is hereby
amended by inserting immediately after the words "Xxxxxx Account" the
words ", Intercraft Account, Levolor Account".
16. Section 7.5 of the Plan is hereby further amended by adding
a new paragraph (f) to read as follows:
(f) A Participant who entered the Levolor Plan prior
to September 1, 1990 and for whom a Levolor Account has been
established under the Plan may elect to have the Adjusted
Balance of the portion of such Levolor Account attributable
to employer profit sharing contributions paid either
pursuant to paragraph (g) below or in the form of a paid-up
annuity policy.
17. Section 7.5 of the Plan is further amended by adding a new
paragraph (g) to read as follows:
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(g) Notwithstanding the above, the following
provisions of this paragraph (g) apply with respect to the
Adjusted Balance of (i) the portion of a Participant's
Intercraft Account held under the Intercraft Retirement
Program, and (ii) the portion of a Participant's Levolor
Account referred to in paragraph (f) above, in the case of a
Participant who elects payment of such portion in the form
of an annuity pursuant to paragraph (f) above:
(i) Payment for reasons other than death.
(A) Upon termination of a Participant's
employment with all Employers for any reason other
than death, the Committee shall direct the Trustee
to pay such portion as follows:
(I) If the Participant has a Spouse at
the date payments to him are to commence,
such amount shall be payable to the
Participant in the form of a Joint and
Survivor Annuity. However, the Participant,
with the consent of his Spouse, may elect
during the Election Period to waive payment
in the form of a Joint and Survivor Annuity
pursuant to subsection (i)(B) below and elect
payment of such portion in a method described
in Section 7.5(a) and (d) above. For
purposes of this subsection (i), the term
"Joint and Survivor Annuity" means an annuity
payable to the Participant for his life, with
a survivor annuity payable to his Spouse for
the life of such Spouse commencing on the
first day of the month immediately following
the date of death of the Participant, in an
amount equal to one-half of the amount
payable during the life of the Participant.
(II) If the Participant does not have a
Spouse at the date payments to him are to
commence, such portion shall be payable to
him in the form of a Single Life Annuity.
However, the Participant may elect during the
Election Period to waive payment in the form
of a Single Life Annuity pursuant to
subsection (i)(B) below and elect payment of
such portion in a method described in Section
7.5(a) and (d) above. For purposes of this
paragraph (i), the term "Single Life Annuity"
means an annuity payable to the Participant
for his life.
(B) Within a reasonable time prior to the
commencement of payments to a Participant under
the Plan, the Committee shall give the Participant
175
a written notice, in nontechnical terms, of his
right to waive payment of such portion in the form
of a Joint and Survivor Annuity or Single Life
Annuity, as the case may be, pursuant to paragraph
(i)(A) and of his right to elect the method of
such payment as described in Section 7.5(a) and
(d) above. Such notice shall include a
description of (I) the terms and conditions of the
Joint and Survivor Annuity or Single Life Annuity,
whichever is applicable, (II) the Participant's
right to make, and the effect of making, an
election to waive the Joint and Survivor Annuity
or Single Life Annuity, (III) the right of the
Participant's Spouse, if any, not to consent to
such an election, (IV) the right to make, and the
effect of, a revocation of such an election, and
(V) the methods of payment pursuant to Section
7.5(a) and (d) above. A Participant may elect at
any time during the Election Period to waive the
Joint and Survivor Annuity or Single Live Annuity,
as the case may be, and to elect a method of
payment described in Section 7.5(a) and (d) above.
For purposes of this subsection (i), the term
"Election Period" means the ninety-day period
ending on the earliest date with respect to which
payments to the Participant commence. Any
election pursuant to this paragraph (i) may be
modified or revoked during the Election Period and
shall be automatically revoked if the Participant
dies before payments commence.
(C) Any election by a married Participant to
waive payment in the form of a Joint and Survivor
Annuity shall not take effect unless the
Participant's Spouse consents in writing to the
election and such consent acknowledges the effect
of the election. Such a consent must acknowledge
the effect of the election and the identity of any
non-Spouse Beneficiary, including any class of
Beneficiaries or contingent Beneficiaries,
designated to receive any installments remaining
unpaid at the date of his death, and must be
witnessed by a representative of the Plan or a
notary public. The consent of a Participant's
Spouse shall not be required if the Participant
establishes to the satisfaction of the Committee
that consent may not be obtained because there is
no Spouse or the Spouse cannot be located, or
because of such other circumstances as the
Secretary of the Treasury may prescribe by
regulations. Any designation by a Participant of
a new Beneficiary or alternate method of payment
shall not take effect unless the Participant's
Spouse, if any, consents to the new designation
176
pursuant to the procedures set forth in the
preceding sentence or unless the Spouse's consent
permits the Participant to change the designation
of his Beneficiary or the method of payment
without the Spouse's consent. A Spouse's consent
shall be irrevocable.
(ii) Payment By Reason of Death.
(A) Upon the death of a Participant prior to
commencement of payment of such portion to him,
the Committee shall direct the Trustee to pay such
amount as follows:
(I) If the Participant has a Spouse at
the date of his death, the Adjusted Balance
of such portion shall be payable to his
Spouse as a Preretirement Survivor Annuity.
However, the Participant, with the consent of
his Spouse, may elect during the Election
Period to waive the Preretirement Survivor
Annuity pursuant to (ii)(B) below and elect
payment of such portion in a method described
in Section 7.5(a) and (d) above. For
purposes of this paragraph (ii), the term
"Preretirement Survivor Annuity" means an
annuity payable for the life of the
Participant's Spouse, commencing on the first
day of the month after the date of death of
the Participant.
(II) If a Participant does not have a
Spouse at the date of his death, such portion
shall be payable to his Beneficiary in any of
the ways set forth in Section 7.5(a) above as
the Participant shall elect by written notice
delivered to the Committee during the
Election Period.
(B) The Committee shall provide each married
Participant with a written explanation of the
Preretirement Survivor Xxxxxxx. The explanation
shall be provided to each such Participant as soon
as may be practicable after his date of
employment. If the employment of the Participant
with the all Employers terminates prior to the
date of his death and he is then reemployed, he
must receive such written explanation as soon as
practicable after the date of reemployment. Such
notice shall include a description of (I) the
terms and conditions of the Preretirement Survivor
Annuity, (II) the Participant's right to make, and
the effect of, an election to waive the
Prepretirement Survivor Annuity and to designate a
beneficiary to receive the adjusted balances in
his accounts, (III) the rights of the
Participant's spouse not to consent to such an
election, (IV) the right to make, and the effect
of, the revocation of such an election, and (V)
the methods of payment pursuant to paragraph (iv)
below. A Participant may elect at any time during
177
the Election Period to waive the Preretirement
Survivor Annuity, if applicable, and to elect a
method of payment described in Section 7.5(a) and
(d) above. For purposes of this subsection (ii),
the term "Election Period" means the period that
begins on the date on which the Participant
receives the aforementioned explanation and ends
on the date of the eParticipant's death. Any
election pursuant to this subsection (ii) may be
modified or revoked during the Election Period..
(C) Any election by a married Participant to
waive payment in the event of his death in the
form of a Preretirement Survivor Annuity and to
designate a non-Spouse Beneficiary shall not take
effect unless the Participant's Spouse consents in
writing to the election and designation prior to
the Participant's death. The Spousal consent
provisions described in (i)(C) above shall apply.
18. Section 7.9 of the Plan is hereby amended, effective as of
May 1, 1993, by designating the current provisions as paragraph (a)
and adding a new paragraph (b) to read as follows:
(b) A participant for whom a Xxxxxxx Account has been
established under the Plan and who has demonstrated the
existence of a Hardship (as defined in paragraph 7.7(j)) may
elect a withdrawal from his Xxxxxxx Account; provided,
however, that in the case of any Hardship withdrawal, the
amount withdrawn pursuant to this paragraph shall be made in
accordance with paragraphs 7.7(i) and (k) and shall in no
event exceed the amount necessary to relieve the Hardship.
19. The Plan is hereby further amended by redesignating Sections
7.11-7.14 as Sections 7.13-7.16 and adding new Sections 7.11 and 7.12
to read as follows:
7.11 WITHDRAWALS FROM INTERCRAFT ACCOUNT. (a) A
Participant for whom an Intercraft Account has been
established under the Plan and who is at least 59-1/2 may
elect to withdraw all or any portion of his Intercraft
Account, other than those amounts in the Intercraft Account
attributable to (i) discretionary employer contributions
made pursuant to Section 4.1 of the Intercraft Profit
Sharing Plan and (ii) contributions made under the
Intercraft Retirement Program. Such withdrawal shall be
effective as of the first day of any month if written notice
is received by the Committee no later than the fifteenth day
of the preceding month.
(b) A Participant for whom an Intercraft Account has
been established under the Plan and who has demonstrated the
existence of a Hardship (as defined in paragraph 7.7(j)) may
elect a withdrawal from his Intercraft Retirement Program;
provided, however, that in the case of any Hardship
withdrawal, the amount withdrawn pursuant to this paragraph
shall be made in accordance with paragraphs 7.7(i) and (k)
and shall in no event exceed the amount necessary to relieve
the Hardship.
178
(c) A Participant for whom an Intercraft Account has
been established under the Plan and who is at least 65 may
elect to withdraw all or any portion of his Intercraft Plan
attributable to discretionary employer contributions made
pursuant to Section 4.1 of the Intercraft Profit Sharing
Plan. Such withdrawal shall be effective as of the first
day of any month if written notice is received by the
Committee no later then the fifteenth day of the preceding
month.
7.12 WITHDRAWALS FROM LEVOLOR ACCOUNT. (a) A
Participant for whom a Levolor Account has been established
under the Plan and who is at least 59-1/2 may elect to
withdraw all or any portion of his Levolor Account, other
than those amounts in the Levolor Account attributable to
discretionary employer contributions made under the Levolor
Plan. Such withdrawal shall be effective as of the first
day of any month if written notice is received by the
Committee no later than the fifteenth day of the preceding
month.
(b) A Participant for whom a Levolor Account has been
established under the Plan and who has demonstrated the
existence of a Hardship (as defined in paragraph 7.7(j)) may
elect a withdrawal from his Levolor Account; provided,
however, that in the case of any Hardship withdrawal, the
amount with withdrawn pursuant to this paragraph shall be
made in accordance with paragraphs 7.7(i) and (k) and shall
in no event exceed the amount necessary to relieve the
Hardship.
(c) A Participant for whom a Levolor Account has been
established under the Plan and who is at least 65 may elect
to withdraw all or any portion of his Levolor Plan
attributable to discretionary employer contributions made
under the Levolor Plan. Such withdrawal shall be effective
as of the first day of any month if written notice is
received by the Committee no later than the fifteenth day of
the preceding month.
20. The first sentence of Section 7.13(a) (as redesignated) of
the Plan is hereby amended to read as follows:
In the event a Participant requests to receive a
distribution pursuant to Sections 7.6, 7.7, 7.8, 7.9, 7.10,
7.11, or 7.12, and the distribution is approved if
necessary, the distribution shall be paid to the Participant
as soon as is reasonably practicable upon receipt of the
written request for such distribution.
21. Section 7.13(b) (as redesignated) is hereby amended to read
as follows:
179
(b) A Participant may not make more than one
withdrawal per Plan Year pursuant to each of Section 7.6,
7.7, 7.8, 7.9, 7.10, 7.11 or 7.12.
22. The first clause of the first sentence of Section 7.16 (as
redesignated) is hereby amended to read as follows:
Notwithstanding anything to the contrary contained elsewhere
in the Plan, a Participant's Savings Account, that portion
of his Anchor Account attributable to Basic Employer
Contributions and Voluntary Employer Contributions (as
defined in the Anchor Plan), that portion of his Xxxxxx
Account attributable to elective deferrals (within the
meaning of the Xxxxxx Plan), that portion of his Xxxxxxx
Account attributable to elective deferrals (within the
meaning of the Xxxxxxx Plan), that portion of his Intercraft
Account attributable to elective deferrals (within the
meaning of the Intercraft Profit Sharing Plan) and that
portion of his Levolor Account attributable to elective
deferrals (within the meaning of the Levolor Plan) shall not
be distributable other upon:
23. Subsection 7.16(f) (as redesignated) is hereby amended to
read as follows:
(f) the Participant's Hardship (in the case of a
distribution from a Participant's Anchor Account, Xxxxxxx
Account, Intercraft Account and Levolor Account).
24. The final sentence of Subsection 8.4(e) is hereby amended,
effective as of May 1, 1993, to read as follows:
If no such allocation direction was in effect at any time,
such payment shall be allocated on a pro rata basis to each
of the Investment Funds described in the schedule attached
to the Trust Agreement.
25. Section 11.1 of the Plan is hereby amended to read as
follows:
11.1 INVESTMENT FUNDS. The Adjusted Balance of each
Participant's Savings Account, Transfer Account, Matching
Contributions Account, Rogers Account, Xxxxxxx Account,
Anchor Account, Intercraft Account and Levolor Account shall
be invested in the various Investments Funds described in
the schedule attached to the Trust Agreement.
26. The first sentence of Section 11.3(c) of the Plan is hereby
amended to read as follows:
Each Participant shall have the right to direct that
the portion of his Savings Account, Transfer Account,
Matching Contributions Account, Rogers Account, Xxxxxxx
Account, Anchor Account, Intercraft Account and Levolor
180
Account held in any one Investment Fund be transferred, in
whole or in part, to any other Investment Fund.
27. Article XI of the Plan is hereby amended by redesignating
Section 11.8 as Section 11.10 and adding new Sections 11.8 and 11.9 to
read as follows:
11.8 INVESTMENT OF INTERCRAFT ACCOUNT. (a) Within a
reasonable time prior to the transfer of assets from the
Intercraft Plan, each Participant who was expected to have
an Intercraft Account established under the Plan was given
the opportunity to direct that his Intercraft Account be
invested, in specified multiples of ten percent (10%), in
any of the Investment Funds.
(b) Each Participant for whom an Intercraft Account
has been established shall have the right to direct a
transfer of amounts held in any one Investment Fund to any
other Investment Fund in accordance with the provisions of
Section 11.3(c).
11.9 INVESTMENT OF LEVOLOR ACCOUNT. (a) Within a
reasonable time prior to the transfer of assets from the
Levolor Plan, each Participant who was expected to have an
Levolor Account established under the Plan was given the
opportunity to direct that his Levolor Account be invested,
in specified multiples of ten percent (10%), in any of the
Investment Funds.
(b) Each Participant for whom a Levolor Account has
been established shall have the right to direct a transfer
of amounts held in any one Investment Fund to any other
Investment Fund in accordance with the provisions of Section
11.3(c).
28. Appendix A of the Plan is hereby amended, as set forth in
the form attached hereto.
Unless otherwise indicated, the amendments set forth above
pertaining specifically to the Intercraft Plan and Levolor Plan are
effective as of January 1, 1994 with respect to the Intercraft Plan
and October 1, 1994 with respect to the Levolor Plan
IN WITNESS WHEREOF, the Company has caused this Second Amendment
to the Plan to be executed on its behalf by its duly authorized
officer as of this 29th day of December, 1994.
XXXXXX OPERATING COMPANY
By:
-----------------------------
Title
---------------------------
181
THIRD AMENDMENT TO THE
XXXXXX XXXX TERM SAVINGS AND INVESTMENT PLAN
(AS AMENDED AND RESTATED EFFECTIVE MAY 1, 1993)
WHEREAS, Xxxxxx Operating Company, a Delaware
corporation, (the "Company") maintains the Xxxxxx Xxxx-Term
Savings and Investment Plan, as Amended and Restated Effective
May 1, 1993 (the "Plan"); and
WHEREAS, the Company has reserved the right to amend
the Plan and now deems it appropriate to do so;
NOW, THEREFORE, the Plan is hereby amended, effective
with respect to (i) Plan Years commencing September 1, 1990 and
ending December 31, 1993; and (ii) Plan Years commencing on and
after January 1, 1995, as follows:
Section 1.15 of the Plan is hereby amended by inserting a
second sentence immediately following the first sentence thereof
to read as follows:
Notwithstanding the preceding sentence, solely for
purposes of determining a Participant's Actual Deferral
Percentage defined in Section 1.2 and a Participant's
Contribution Percentage defined in Subsection 4.2(b),
Earnings means the amount of total remuneration
reportable on U.S. Treasury Department Form W-2 or any
successor Form thereof and paid to the Participant by
the Company or an Affiliated Employer during the Plan
Year.
IN WITNESS WHEREOF, the Company has caused this Third
Amendment to the Plan to be executed on its behalf by its duly
authorized officer as of this 29th day of December, 1995.
XXXXXX OPERATING COMPANY
By: __________________________
Title ________________________