Exhibit 10.4(c)
SEVENTH AMENDED AND RESTATED
XXXXX'X GENERAL STORES, INC. EMPLOYEES'
STOCK OWNERSHIP PLAN AND TRUST AGREEMENT
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THIS SEVENTH AMENDED AND RESTATED XXXXX'X GENERAL STORES, INC. EMPLOYEES'
STOCK OWNERSHIP PLAN AND TRUST AGREEMENT is made and entered into this 29/th/
day of April, 2002, by and between XXXXX'X GENERAL STORES, INC., an Iowa
corporation with its principal place of business in Des Moines, Iowa,
hereinafter referred to as the "Company," and UMB Bank, N.A., having a principal
office at Kansas City, Missouri, as Trustee, hereinafter referred to as the
"Trustee."
INTRODUCTION
The Company hereby amends, restates and continues, within this Agreement,
this Seventh Amended and Restated Xxxxx'x General Stores, Inc. Employees' Stock
Ownership Plan and Trust, intended to conform to and qualify under Section 401
and Section 501 of the Internal Revenue Code of 1986, as amended, for the
purpose of providing retirement benefits for Eligible Employees and to promote
in its employees the strongest interest in the successful operation of the
business, loyalty to the Company and increased efficiency in their work, with
the assurance that they will share in the prosperity of the enterprise, on the
following terms and conditions. This Plan is an amended plan, in restated form,
with the original plan being last amended and restated on the 27/th/ day of
April, 1995, and is intended to be an Employee Stock Ownership Plan designed to
invest primarily in securities of the Company in accordance with Section 4975 of
the Internal Revenue Code of 1986, as amended.
This restatement, generally effective as of May 1, 1997, is set forth in
this document and is substituted in lieu of the prior plan document. This
restatement is made retroactively to reflect the law changes made through the
Internal Revenue Service Restructuring and Reform Act of 1998. This restated
plan continues to be for the exclusive benefit of employees of the Company. All
persons covered under the plan on April 30, 1997, shall continue to be covered
under this restated Plan without any loss of benefits.
ARTICLE I
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DEFINITIONS
1.01 "Account" means the separate account(s) which the Plan Administrator
or the Trustee shall maintain for a Participant under the Plan.
1.02 "Accounting Date" means the last day of the Plan Year. Unless
otherwise specified in the Plan, the Plan Administrator will make all Plan
allocations for a particular Plan Year as of the Accounting Date of that Plan
Year.
1.03 "Account Balance" or "Accrued Benefit" means the amount standing in a
Participant's Account(s) as of any date derived from Company contributions,
Participant forfeitures and gains or losses, if any, under this Plan.
1.04 "Act" means the "Employee Retirement Income Security Act of 1974" and
any amendment thereto.
1.05 "Advisory Committee" means the Company's Advisory Committee as from
time to time constituted in accordance with Section 10.01 hereof.
1.06 "Beneficiary" (or "Beneficiaries") means a person designated by a
Participant who is or may become entitled to a benefit under this Plan. A
Beneficiary who becomes entitled to a benefit under this Plan remains a
Beneficiary under this Plan until the Trustee has fully distributed his or her
benefit to him or her. The Beneficiary's right to (and the Plan Administrator's
or the Advisory Committee's duty to provide to the Beneficiary) information or
data concerning the Plan does not arise until he or she first becomes entitled
to receive a benefit under this Plan.
1.07 "Break in Service" means a Plan Year in which an Employee fails to
complete more than five hundred (500) Hours of Service.
1.08 "Code" means the Internal Revenue Code of 1986, as amended.
1.09 "Company" means Xxxxx'x General Stores, Inc., an Iowa corporation
located in Des Moines, Iowa, or any corporation with or into which said
corporation may be merged or consolidated or to which its assets may be sold,
and any affiliated corporation whose Board of Directors, with the written
consent of Xxxxx'x General Stores, Inc., has adopted this Plan; provided,
however, that any such corporation elects in writing to adopt this Plan and to
be bound by the provisions contained herein. For purposes of determining a Year
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of Service, an Hour of Service and a Break In Service, and for any other purpose
required by the Act or the Code, the term "Company" shall include, in addition
to the aforesaid corporation, any and all corporations which are part of an
affiliated group of corporations (as defined in the Code) which includes the
aforenamed corporations; and for these purposes, except as provided herein, the
Plan shall treat all employees of all corporations which are members of a
controlled group of corporations (as defined in Code (S)414(b)), all employees
of all trades or businesses (whether or not incorporated) which are under common
control (as defined in Code (S)414(c)) and all employees of an affiliated
service group (as defined in Code (S)414(m)) as employed by a single employer.
Otherwise, "Company" shall refer only to (and, where applicable, require action
by) those particular affiliated corporations whose Boards of Directors have
adopted this Plan.
1.10 "Compensation" means a Participant's W-2 wages for federal income tax
withholding purposes, as defined under Code (S)3401(a), plus all other payments
to an Employee in the course of the Company's trade or business, for which the
Company must furnish the Employee a written statement under Code (S)(S)6041,
6051 and 6052, disregarding any rules limiting the remuneration included as
wages under this definition based on the nature or location of the employment or
service performed.
The following paragraphs (a), (b), (c) and (d) apply to the definition of
Compensation:
(a) Elective Contributions. "Elective Contributions" are amounts
excludible from the Employee's gross income under Code (S)(S)125,
132(f)(4), 402(e)(3), 402(h)(2), 403(b), 408(p) or 457, and contributed by
the Company, at the Employee's election, to a cafeteria plan, a qualified
transportation fringe benefit plan, a 401(k) arrangement, a SARSEP, a
tax-sheltered annuity, a SIMPLE plan or a Code (S)457 plan.
(b) Compensation Dollar Limitation. For any Plan Year, the Plan
Administrator cannot take into account more than $150,000 (or such larger
or smaller amount as the Commissioner of Internal Revenue may prescribe) of
any Participant's Compensation.
(c) Nondiscrimination. For purposes of determining whether the Plan
discriminates in favor of Highly Compensated Employees, Compensation means
Compensation as defined in this Section 1.10, except the Company annually
may elect operationally to include or to exclude Elective Contributions. In
applying the immediately preceding sentence, the Company must be consistent
and uniform with
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respect to all Employees and all plans of the Company for any particular
Plan Year. The Company may elect to exclude from this nondiscrimination
definition of Compensation any items of Compensation excludible under Code
(S)414(s) and the applicable Treasury regulations, provided such adjusted
definition conforms to the nondiscrimination requirements of those
regulations.
(d) Other Rules. Any reference in this Plan to Compensation is a
reference to the definition in this Section 1.10, unless the Plan reference
specifies a modification to this definition. The Plan Administrator will
take into account only Compensation actually paid for the relevant period.
The term "Compensation" does not include (i) Company contributions to a
plan of deferred compensation to the extent the contributions are not
included in the gross income of the Employee for the taxable year in which
contributed, on behalf of an Employee to a Simplified Employee Pension Plan
to the extent such contributions are excludible from the Employee's gross
income, and any distributions from a plan of deferred compensation,
regardless of whether such amounts are includible in the gross income of
the Employee when distributed; (ii) amounts realized from the exercise of a
non-qualified stock option, or when restricted stock (or property) held by
an Employee either becomes freely transferable or is no longer subject to a
substantial risk of forfeiture; (iii) amounts realized from the sale,
exchange or other disposition of stock acquired under a qualified stock
option; (iv) other amounts which receive special tax benefits, such as
premiums for group term life insurance (but only to the extent that the
premiums are not includible in the gross income of the Employee); or (v)
reimbursements or other expense allowances, fringe benefits (cash and
noncash), moving expenses, deferred compensation, and welfare benefits.
However, Compensation includes Elective Contributions made by the Company
on the Employee's behalf. A Compensation payment includes Compensation paid
by the Company to an Employee through another person under the common
paymaster provisions of Code (S)(S)3121(s) and 3306(p).
1.11 "Disability" means the Participant, because of a physical or mental
disability, will be unable to perform the duties of his or her customary
position of employment (or is unable to engage in any substantial gainful
activity) for an indefinite period which the Plan Administrator considers will
be of long continued duration. A Participant also is disabled if he or she
incurs the permanent loss or loss of use of a member or function of the body, or
is permanently disfigured, and incurs a Separation from Service. The Plan
considers a Participant disabled on the date the Plan Administrator determines
the Participant satisfies the definition of disability. The Plan Administrator
may require a Participant to submit to a physical examination in order to
confirm the disability. The
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Plan Administrator will apply the provisions of this Section 1.11 in a
nondiscriminatory, consistent and uniform manner.
1.12 "Disqualified Person" has the same meaning ascribed to that term under
Code (S)4975(e)(2).
1.13 "Effective Date" of this Plan, as restated during the 2001 Plan Year,
is generally May 1, 1997, except for the retroactive effective dates required by
the Uruguay Round Agreements Act, the Uniformed Services Employment and
Reemployment Rights Act of 1994, the Small Business Job Protection Act of 1996,
the Taxpayer Relief Act of 1997 and the Internal Revenue Service Restructuring
and Reform Act of 1998 or any final Treasury regulations published and effective
since the most recent effective date of this Plan. Further, to the extent the
Plan was operated according to an effective date earlier than is required by
law, then such date shall be the Effective Date.
1.14 "Employee" means any employee of the Company.
1.15 "Employer Securities" means any securities issued by the Company, or
by a corporation which is a member of the same controlled group of corporations,
which satisfy the definition of "qualifying employer securities" in Code
(S)4975(e)(8).
1.16 "Employment Commencement Date" means the date on which an Employee
first performs an Hour of Service for the Company.
1.17 "Exempt Loan" means a loan made to this Plan by a Disqualified Person,
or a loan to this Plan which a Disqualified Person guarantees, provided the loan
satisfies the requirements of Treas. Reg. (S)54.4975-7(b).
1.18 "Highly Compensated Employee" means an Employee:
(a) who, during the Plan Year or during the preceding Plan Year, is a
5 percent or more owner of the Company (applying the constructive ownership
rules of Code (S)318, and applying the principles of Code (S)318 for an
unincorporated entity); or
(b) who, during the preceding Plan Year, had Compensation from the
Company in excess of $80,000 (as adjusted by the Commissioner of Internal
Revenue for the relevant year pursuant to Code (S)415(d)).
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For purposes of this Section 1.18 "Compensation" means Compensation as
defined in Section 1.10, except Compensation specifically excludes Elective
Contributions. The Plan Administrator must make the determination of who is a
Highly Compensated Employee consistent with Code (S)414(q) and the Treasury
regulations issued under that Code section. For purposes of this Section
1.18, the term "preceding Plan Year" means the 12-consecutive month period
immediately preceding the current Plan Year.
1.19 "Hour of Service" means:
(a) Each Hour of Service for which the Company, either directly or
indirectly, pays an Employee, or for which the Employee is entitled to
payment, for the performance of duties. The Plan Administrator credits Hours
of Service under this paragraph (a) to the Employee for the computation
period in which the Employee performs the duties, irrespective of when paid;
(b) Each Hour of Service for back pay, irrespective of mitigation of
damages, to which the Company has agreed or for which the Employee has
received an award. The Plan Administrator credits Hours of Service under this
paragraph (b) to the Employee for the computation period(s) to which the
award or the agreement pertains rather than the computation period in which
the award, agreement or payment is made; and
(c) Each Hour of Service for which the Company, either directly or
indirectly, pays an Employee, or for which the Employee is entitled to
payment (irrespective of whether the employment relationship is terminated),
for reasons other than for the performance of duties during a computation
period, such as leave of absence, vacation, holiday, sick leave, illness,
incapacity (including disability), lay off, jury duty or military duty. The
Plan Administrator will credit no more than five hundred one (501) Hours of
Service under this paragraph (c) to an Employee on account of any single
continuous period during which the Employee does not perform any duties
(whether or not such period occurs during a single computation period. The
Plan Administrator credits Hours of Service under this paragraph (c) in
accordance with the rules of paragraphs (b) and (c) of Labor
Reg. (S)2530.200b-2, which the Plan, by this reference, specifically
incorporates in full within this paragraph (c).
The Plan Administrator will not credit an Hour of Service under more than
one (1) of the above paragraphs. A computation period for purposes of this
Section 1.19 is the Plan
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Year, Year of Service period, Break in Service period or other period, as
determined under the Plan provision for which the Plan Administrator is
measuring an Employee's Hours of Service. The Plan Administrator will resolve
any ambiguity with respect to the crediting of an Hour of Service in favor of
the Employee.
(1) Method of Creating Hours of Service. The Company will credit every
Employee with Hours of Service on the basis of the "actual" method. For
purposes of this Plan, "actual" method means the determination of Hours of
Service from records of hours worked and hours for which the Company makes
payment or for which payment is due from the Company. Alternatively, an
Employee who is compensated on a salaried basis may be credited with
forty-five (45) Hours of Service for each week (or part thereof) in which he
or she received Compensation during the Plan Year.
(2) Maternity/Paternity Leave; Family and Medical Leave Act. Solely for
purposes of determining whether the Employee incurs a Break in Service under
any provision of this Plan, the Plan Administrator will credit Hours of
Service during an Employee's unpaid absence period due to maternity or
paternity leave. The Advisory committee considers an Employee on maternity
or paternity leave if the Employee's absence is due to the Employee's
pregnancy, the birth of the Employee's child, the placement with the
Employee of an adopted child, or the care of the Employee's child
immediately following the child's birth or placement. The Plan Administrator
credits Hours of Service under this paragraph on the basis of the number of
Hours of Service the Employee would receive if he or she were paid during
the absence period or, if the Plan Administrator cannot determine the number
of Hours of Service the Employee would receive, on the basis of eight (8)
hours per day during the absence period. The Plan Administrator will credit
only the number of Hours of Service (up to 501 Hours of Service) necessary
to prevent an Employee's Break in Service. The Plan Administrator credits
all Hours of Service described in this paragraph to the computation period
in which the absence period begins or, if the Employee does not need these
Hours of Service to prevent a Break in Service in the computation period in
which is absence period begins, the Plan Administrator credits these Hours
of Service to the immediately following computation period.
(3) Qualified Military Service. Hour of Service also includes any
Service the Plan must credit in order to satisfy the crediting of Service
requirements of Code (S)414(u).
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1.20 "Leased Employee" means an Employee of the Company subject to the
provisions of this Section 1.20. A Leased Employee is an individual (who
otherwise is not an Employee of the Company) who, pursuant to a leasing
agreement between the Company and any other person, has performed services for
the Company (or for the Company and any persons related to the Company within
the meaning of Code (S)144(a)(3)) on a substantially full time basis for at
least one year and who performs services historically performed by in the
Company's business field. If a Leased Employee is treated as an Employee by
reason of this Section 1.20, "Compensation" includes Compensation from the
leasing organization which is attributable to services performed for the
Company.
(a) Safe Harbor Plan Exception. The Plan does not treat a Leased
Employee as an Employee if the leasing organization covers the employee in a
safe harbor plan and, prior to application of this safe harbor plan
exception, 20 percent or less of the Company's Employees (other than Highly
Compensated Employees) are Leased Employees. A safe harbor plan is a money
purchase pension plan providing immediate participation, full and immediate
vesting, and a nonintegrated contribution formula equal to at least 10
percent of the employee's compensation without regard to employment by the
leasing organization on a specified date. The safe harbor plan must
determine the 10 percent contribution on the basis of compensation as
defined in Code (S)415(c)(3) with the inclusion of elective contributions
(if otherwise excludible). If a Participant is a Leased Employee covered by
a plan maintained by the leasing organization, the Plan Administrator will
determine the allocation of Company contributions and Participant
forfeitures on behalf of the Participant by taking into account the Leased
Employee's allocation, if any, under the leasing organization's plan, but
only to the extent that allocation is attributable to the Leased Employee's
services performed for the Company.
(b) Other Requirements. The Plan Administrator must apply this Section
1.20 in a manner consistent with Code (S)(S)414(n) and 414(o) and the
regulations issued under those Code sections.
1.21 "Leveraged Employer Securities" means Employer Securities acquired by
the Trust with the proceeds of an Exempt Loan and which satisfy the definition
of "qualifying employer securities" in Code (S)4975(e)(8).
1.22 "Named Fiduciary" means (except as otherwise used in Section 11.16) the
Plan Administrator for purposes of Section 402 of the Act. Individuals on the
Advisory
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Committee shall have the authority to control and manage the Plan operations and
administration.
1.23 "Nonforfeitable" means a Participant's or Beneficiary's unconditional
claim, legally enforceable against this Plan, to the Participant's Accrued
Benefit.
1.24 "Nonhighly Compensated Employee" means any Employee who is not a Highly
Compensated Employee.
1.25 "Normal Retirement Age" means the sixty-second (62/nd/) birthday of any
Participant hereunder.
1.26 "Participant" means an Employee who is eligible to be and becomes a
Participant in accordance with the provisions of Section 3.01. An Employee who
becomes a Participant shall remain a Participant under this Plan until the
Trustee has fully distributed his or her Nonforfeitable Accrued Benefit to him
or her or to his or her Beneficiary.
1.27 "Plan" means the retirement plan established and continued by the
Company in the form of this Agreement, designated as the "Seventh Amended and
Restated Xxxxx'x General Stores, Inc. Employees' Stock Ownership Plan and
Trust." The Company has designed this Plan to invest primarily in Employer
Securities.
1.28 "Plan Administrator" means the Advisory Committee. In addition to other
duties, the Plan Administrator shall have full responsibility for compliance
with the reporting and disclosure rules under the Act as respects this Plan. The
Plan Administrator is hereby designated as the agent for service of legal
process.
1.29 "Plan Entry Date" means the restated Effective Date and every May 1 and
November 1 after the restated Effective Date.
1.30 "Plan Year" means the fiscal year of the Plan, a twelve (12)
consecutive month period ending every April 30.
1.31 "Protected Benefit" means any accrued benefit described in Treas.
Reg. (S)1.411(d)-4, including any optional form of benefit provided under the
Plan which may not (except in accordance with such Regulations) be reduced,
eliminated or made subject to the Company's discretion.
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1.32 "Separation from Service" means a separation from Service with the
Company maintaining this Plan.
1.33 "Service" means any period of time the Employee is in the employ of the
Company, including any period the Employee is on an unpaid leave of absence
authorized by the Company under a uniform, nondiscriminatory policy applicable
to all Employees.
1.34 "Taxable Wage Base" means the maximum amount of earnings which is
considered to be wages for the year under Code (S)3121(a)(1). The Taxable Wage
Base for any Plan Year shall be the amount that is currently in effect on the
last day of the Plan Year.
1.35 "Trust" means the separate Trust created under the Plan.
1.36 "Trust Fund" means all property every kind held or acquired by the
Trustee under this Plan and Trust, other than incidental benefit insurance
contracts, if any. This Plan creates a single Trust for all companies
participating under this Plan. However, the Trustee will maintain separate
records of account in order to properly reflect each Participant's Annual
Benefit derived from each participating company.
1.37 "Trustee" means UMB Bank, N.A., Kansas City, Missouri, chosen by the
Company's Board of Directors to act as Trustee hereunder, or any successor
Trustee(s) chosen by the Company's Board of Directors to act hereunder and who
in writing accepts the position of Trustee.
1.38 "Vested" means a Participant or a Beneficiary has an unconditional
claim, legally enforceable against the Plan, to the Participant's Account
Balance or Accrued Benefit.
1.39 DETERMINATION OF TOP HEAVY STATUS. If this Plan is the only qualified
plan maintained by the Company, the Plan is top heavy for a Plan Year if the top
heavy ratio as of the Determination Date exceeds 60 percent. The top heavy ratio
is a fraction, the numerator of which is the sum of the present value of Accrued
Benefits of all Key Employees as of the Determination Date and the denominator
of which is a similar sum determined for all Employees. The Plan Administrator
must include in the top heavy ratio, as a part of the present value of Accrued
Benefits, any contribution not made as of the Determination Date but includible
under Code (S)416 and the applicable Treasury regulations, and distributions
made within the Determination Period. The Plan Administrator must calculate the
top heavy ratio by disregarding the Accrued Benefit (and
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distributions, if any, of the Accrued Benefit) of any Non-Key Employee who was
formerly a Key Employee, and by disregarding the Accrued Benefit (including
distributions, if any, of the Accrued Benefit) of any individual who has not
received credit for at least one Hour of Service with the Company during the
Determination Period. The Plan Administrator must calculate the top heavy ratio,
including the extent to which it must take into account distributions, rollovers
and transfers, in accordance with Code (S)416 and the regulations under that
Code section.
If the Company maintains other qualified plans (including a simplified
employee pension plan), or maintained another such plan which now is terminated,
this Plan is top heavy only if it is part of the Required Aggregation Group, and
the top heavy ratio for the Required Aggregation Group and for the Permissive
Aggregation Group, if any, each exceeds 60 percent. The Plan Administrator will
calculate the top heavy ratio in the same manner as required by the first
paragraph of this Section 1.39, taking into account all plans within the
Aggregation Group. To the extent the Plan Administrator must take into account
distributions to a Participant, the Plan Administrator must include
distributions from a terminated plan which would have been part of the Required
Aggregation Group if it were in existence on the Determination Date. The Plan
Administrator will calculate the present value of Accrued Benefit under defined
benefit plans or simplified employee pension plans included within the group in
accordance with the terms of those plans, Code (S)416 and the regulations under
that Code section. If a Participant in a defined benefit plan is a Non-Key
Employee, the Plan Administrator will determine his Accrued Benefit under the
accrual method, if any, which is applicable uniformly to all defined benefit
plans maintained by the Company or, if there is no uniform method, in accordance
with the slowest accrual rate permitted under the fractional rule accrual method
described in Code (S)411(b)(1)(C). To calculate the present value of benefits
from a defined benefit plan, the Plan Administrator will use the actuarial
assumptions (interest and mortality only) prescribed by the defined benefit
plan(s) to value benefits for top heavy purposes. If any aggregated plan does
not have a valuation date coinciding with the Determination Date, the Plan
Administrator must value the Accrued Benefits in the aggregated plan as of the
most recent valuation date falling within the twelve-month period ending on the
Determination Date, except as Code (S)416 and applicable Treasury regulations
require for the first and second plan year of a defined benefit plan. The Plan
Administrator will calculate the top heavy ratio with reference to the
Determination Dates that fall within the same calendar year.
Definitions. For purposes of applying the provisions of this Section 1.34:
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(a) "Company" means the Company that adopts this Plan and any related
employers described in Section 1.35.
(b) "Compensation" means Compensation as determined under Section 1.18
(relating to the Highly Compensated Employee definition).
(c) "Determination Date" for any Plan Year is the Accounting Date of the
preceding Plan Year or, in the case of the first Plan Year of the Plan, the
Accounting Date of that Plan Year. The "Determination Period" is the five (5)
year period ending on the Determination Date.
(d) "Key Employee" means, as of any Determination Date, any Employee or
former Employee (or Beneficiary of such Employee) who, for any Plan Year in the
Determination Period: (i) has Compensation in excess of 50 percent of the dollar
amount prescribed in Code (S)415(b)(1)(A) (relating to defined benefit plans)
and is an officer of the Company, (ii) has Compensation in excess of the dollar
amount prescribed in Code (S)415(c)(1)(A) (relating to defined contribution
plans) and is one of the Employees owning the ten largest interests in the
Company, (iii) is a more than 5 percent owner of the Company; or (iv) is a more
than 1 percent owner of the Company and has Compensation of more than $150,000.
The constructive ownership rules of Code (S)318 (or the principles of that
section, in the case of an unincorporated Company,) will apply to determine
ownership in the Company. The number of officers taken into account under clause
(i) will not exceed the greater of 3 or 10 percent of the total number (after
application of the Code (S)414(q)(8) exclusions) of Employees, but no more than
50 officers. The Plan Administrator will make the determination of who is a Key
Employee in accordance with Code (S)416(i)(1) and the regulations under that
Code section.
(e) "Non-Key Employee" is an employee who does not meet the definition of
Key Employee.
(f) "Permissive Aggregation Group" is the Required Aggregation Group plus
any other qualified plan maintained by the Company, but only if such group would
satisfy in the aggregate the requirements of Code (S)401(a)(4) and Code (S)410.
The Plan Administrator will determine the Permissive Aggregation Group.
(g) "Required Aggregation Group" means: (1) each qualified plan of the
Company in which at least one Key Employee participates at any time during the
Determination Period; and (2) any other qualified plan of the Company which
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enables a plan described in clause (1) to meet the requirements of Code
(S)401(a)(4) or Code (S)410.
1.40 RELATED EMPLOYERS. A related group is a controlled group of
corporations (as defined in Code (S)414(b)), trades or businesses (whether or
not incorporated) which are under common control (as defined in Code (S)414(c))
or an affiliated service group (as defined in Code (S)414(m) or in Code (S)
414(o)). If the Company is a member of a related group, the term "Company"
includes the related group members for purposes of crediting Hours of Service,
determining Years of Service and Breaks in Service under Articles III and VI,
applying the limitations on allocations in Part 2 of Article IV, applying the
top heavy rules and the minimum allocation requirements of Article IV, the
definitions of Employee, Highly Compensated Employee and Compensation, and for
any other purpose required by the applicable Code section or by a Plan
provision. However, only a Company described in Section 1.09 may contribute to
the Plan and only an Employee employed by a Company described in Section 1.09 is
eligible to participate in this Plan.
1.41 SERVICE FOR PREDECESSOR EMPLOYER. If the Company maintains the plan of
a predecessor employer, the Plan treats service of the Employee with the
predecessor employer as service with the Company.
1.42 PLAN MAINTAINED BY MORE THAN ONE EMPLOYER.
(a) Treatment of Employers. If more than one employer maintains this
Plan, then for purposes of determining Service and Hours of Service, the
Plan Administrator will treat all Companies maintaining this Plan as a
single employer.
(b) Plan Allocations. The Plan Administrator must allocate all Company
contributions and forfeitures to each Participant in the Plan, in
accordance with Article IV, without regard to which contributing Company
employs the Participant. A Participant's Compensation includes Compensation
from all participating Companies irrespective of which Companies are
contributing to the Plan.
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ARTICLE II
STATEMENT OF TRUST
The Company adopted the Amended and Restated Xxxxx'x General Stores, Inc.
Employees' Profit Sharing Trust, effective as of May 1, l966, and later adopted
the Amended and Restated Xxxxx'x General Stores, Inc. Employee's Profit Sharing
and Stock Ownership Plan and Trust, effective as of May 1, l981. On November 25,
1985, the Company continued and restated the Plan as the Fourth Amended and
Restated Xxxxx'x General Stores, Inc. Employees' Profit Sharing and Stock
Ownership Plan and Trust, effective as of May 1, l985; on July 26, 1989, the
Company continued and restated the Plan as the Fifth Amended and Restated
Xxxxx'x General Stores, Inc. Employees' Profit Sharing and Stock Ownership Plan
and Trust effective as of May 1, 1989; and on April 27, 1995, the Company last
continued and restated the Plan as the Sixth Amended and Restated Xxxxx'x
General Stores, Inc. Employees' Profit Sharing and Stock Ownership Plan and
Trust effective as of May 1, 1995.
As of the Effective Date of this continued Plan, the Company does hereby
adopt this Plan and Trust with the Trustee, under the name THE SEVENTH AMENDED
AND RESTATED XXXXX'X GENERAL STORES, INC. EMPLOYEES' STOCK OWNERSHIP PLAN AND
TRUST AGREEMENT, as set forth herein, in substitution for, and in amendment of,
the Company's existing Plan dated as of April 27, 1995. The provisions of this
Plan, as a restated Plan, apply solely to an Employee whose employment with the
Company terminates on or after May 1, 2001. If an Employee's employment with the
Company terminated prior to May 1, 2001, that Employee shall be entitled to
benefits under the Plan as the Plan existed on the date of the Employee's
termination of employment.
All funds and property contributed to the Trustee hereunder shall be held
and administered by the Trustee, in trust, in accordance with the terms and
conditions set forth in this Agreement. This Plan and Trust are intended to meet
the requirements of Section 401(a) of the Code and of the Act and are designed
to invest primarily in Employer Securities.
The Trustee hereby agrees to hold the Trust Fund and any and all monies or
property transferred, assigned, set over and conveyed to the Trustee or which
the Trustee may receive from earnings upon the Trust Fund by reason of
enhancement in value of the Trust Fund, for the uses and purposes and subject to
the terms and conditions of the Trust as stated herein.
-14-
ARTICLE III
PARTICIPATION
3.01 ELIGIBILITY. Each Employee becomes a Participant in the Plan on the
Plan Entry Date (if employed on that date) coincident with or immediately
following the later of the date on which he completes one (1) Year of Service or
attains age twenty- one (21). Each Employee who was a Participant in the Plan on
the day before the Effective Date of this restated Plan continues as a
Participant in the Plan.
3.02 YEAR OF SERVICE - PARTICIPATION. For purposes of an Employee's
participation in the Plan, the Plan takes into account all of an Employee's
Years of Service with the Company except as provided in Section 3.03. "Year of
Service" means a twelve (12) consecutive month period during which the Employee
completes not less than one thousand (1,000) hours of Hours of Service,
measuring the beginning of the first twelve (12) month period from the
Employment Commencement Date. If the Employee does not complete one thousand
(1,000) Hours of Service during the twelve (12) month period commencing with the
Employee's Employment Commencement Date, the Plan shall measure succeeding
twelve (12) consecutive month periods from each anniversary of the Employee's
Employment Commencement Date.
3.03 BREAK IN SERVICE - PARTICIPATION. For purposes of participation in
this Plan, the Plan does not apply any Break in Service rule.
3.04 PARTICIPATION UPON RE-EMPLOYMENT.
(a) A Participant who incurs a Separation from Service shall re-enter
the Plan as a Participant on the date of his or her reemployment.
(b) An Employee who satisfies the eligibility conditions but who
incurs a Separation from Service prior to becoming a Participant becomes a
Participant in the Plan on the later of the Plan Entry Date on which he or
she would have entered the Plan had he or she not incurred a Separation
from Service or the date of his or her re-employment.
(c) Any Employee who incurs a Separation from Service prior to
satisfying the Plan's eligibility conditions becomes a Participant in
accordance with the provisions of Section 3.01.
-15-
3.05 DESIGNATION OF PARTICIPANTS. All determinations by the Plan
Administrator of who shall be Participants and all determinations as to when any
Employee shall cease to be a Participant or an Employee shall be solely in the
discretion of the Plan Administrator within these rules, and the Trustee shall
recognize as Participants all Employees whose names are furnished to the
Trustee.
* * *
-16-
ARTICLE IV
COMPANY CONTRIBUTIONS
Part 1. Amount of Company Contributions and Plan Allocations: Sections 4.01
through 4.06.
4.01 AMOUNT. For each Plan Year, the Company will contribute to the Trust an
amount which the Company may from time to time deem advisable. Although the
Company will contribute to this Plan irrespective of whether it has net profits,
the Company intends the Plan to be a stock bonus plan for all purposes of the
Code. The Company may not make a contribution to the Trust for any Plan Year to
the extent the contribution would exceed the Participants' "Maximum Permissible
Amounts" under Section 4.09.
The Company contributes to the Plan on the condition its contribution is not
due to a mistake of fact and the Internal Revenue Service will not disallow the
deduction for its contribution. The Trustee, upon written request from the
Company, must return to the Company the amount of the Company's contribution
made by the Company by mistake of fact or the amount of the Company's
contribution disallowed as a deduction under Code (S)404. The Trustee will not
return any portion of the Company's contribution under the provisions of this
paragraph more than one (1) year after:
(a) The Company made the contribution by mistake of fact; or
(b) The disallowance of the contribution as a deduction, and then, only
to the extent of the disallowance.
The Trustee will not increase the amount of the Company contribution returnable
under this Section 5.01 for any earnings attributable to the contribution, but
the Trustee shall decrease the Company contribution returnable for any losses
attributable to it. The Trustee may require the Company to furnish it whatever
evidence the Trustee deems necessary to enable the Trustee to confirm the amount
the Company has requested be returned is properly returnable under the Act.
The Company may make its contribution in cash or in Employer Securities as
the Company from time to time may determine. The Company may make its
contribution of Employer Securities at fair market value determined at the time
of contribution.
-17-
Notwithstanding any provision in this Article IV to the contrary, the Plan
will provide contributions and Service credit with respect to qualified military
service in accordance with Code (S)414(u).
4.02 DETERMINATION OF CONTRIBUTION. The Company, from its records, shall
determine the amount of any contributions to be made by it to the Trust under
the terms of this Plan.
4.03 TIME OF PAYMENT. The Company may pay its contribution for each Plan
Year in one (1) or more installments without interest. The Company must,
however, make its contribution to the Trustee within the time prescribed
(including extensions) by the Code or applicable Treasury regulations.
4.04 CONTRIBUTION ALLOCATION.
(a) Method of Allocation. Subject to Section 4.04(B) and any
restoration allocation required under Section 6.04, the Plan Administrator
will allocate and credit each annual Company contribution (and Participant
forfeitures, if any), in accordance with this Section 4.04(A), to the
Account of each Participant who satisfies the conditions of Section 4.06
in the same ratio that each Participant's Compensation for the Plan Year
bears to the total Compensation of all Participants for the Plan Year.
To determine a Participant's contribution allocation under this
Section 4.04(a), Compensation means the general definition of Compensation
described in Section 1.10, but excluding reimbursement or other expense
allowances, fringe benefits (cash and non cash), moving expenses, deferred
compensation and welfare benefits, and including Elective Contributions
(as defined in Section 1.10).
(b) Top Heavy Minimum Allocation.
(1) Minimum Allocation. If the Plan is top heavy in any
Plan Year:
a) Each Non-Key Employee (as defined in Section 1.38)
who is a Participant and is employed by the Company on the
last day of the Plan Year will receive a top heavy minimum
allocation for that Plan Year, irrespective of whether he or
she satisfies the Hours of Service condition under Section
4.06; and
-18-
b) The top heavy minimum allocation is the lesser of 3
percent of the Non-Key Employee's Compensation for the Plan Year or
the highest contribution rate for the Plan Year made on behalf of
any Key Employee (as defined in Section 1.39). However, if a
defined benefit plan maintained by the Company which benefits a Key
Employee depends on this Plan to satisfy the antidiscrimination
rules of Code (S)401(a)(4) or the coverage rules of Code (S)410 (or
another plan benefitting the Key Employee so depends on such
defined benefit plan), the top heavy minimum allocation is 3
percent of the Non-Key Employee's Compensation regardless of the
contribution rate for the Key Employees.
(2) Determining Top-Heavy Contribution Rates. In determining
under Section 4.04(b) the highest contribution rate for any Key Employee,
the Plan Administrator takes into account all Company contributions
(including deferral contributions and including matching contributions, if
any, but not including Company contributions to Social Security) and
forfeitures allocated to the Participant's Account for the Plan Year,
divided by his or her Compensation for the entire Plan Year. For purposes
of satisfying the Company's top-heavy minimum allocation requirement, the
Plan Administrator disregards the elective deferrals and matching
contributions, if any, allocated to a Non-Key Employee's Account in
determining the Non-Key Employee's contribution rate. However, the Plan
Administrator operationally may include in the contribution rate of a
Non-Key Employee any matching contributions not necessary to satisfy the
nondiscrimination requirements of Code (S)401(k) or of Code (S)401(m).
To determine a Participant's contribution rate, the Plan
Administrator must treat all qualified top-heavy defined contribution
plans maintained by the Company (or by any Related Employer) as a single
plan. If, for a Plan Year, there are no allocations of Company
contributions or of forfeitures for any Key Employee, the Plan does not
require any top-heavy minimum allocation for the Plan Year, unless a
top-heavy minimum allocation applies because of the maintenance by the
Company of more than one plan.
(3) Satisfaction of Top-Heavy Minimum. The Plan will satisfy the
top-heavy minimum allocation requirement in accordance with the following
requirements:
-19-
a) If the Company makes any necessary additional contribution to
this Plan, the Plan Administrator first will allocate the Company
contributions (the Participant forfeitures, if any) for the Plan Year
in accordance with the provisions of Section 4.04(a). The Company then
will contribute an additional amount for the Account of any
Participant entitled under Section 4.04(c) to a top-heavy minimum
allocation and whose contribution rate for the Plan Year, under this
Plan and any other plan aggregated under this Section 4.04, is less
than the top-heavy minimum allocation. The additional amount is the
amount necessary to increase the Participant's contribution rate to
the top-heavy minimum allocation. The Plan Administrator will allocate
the additional contribution to the Account of the Participant on whose
behalf the Company makes the contribution.
b) If the Company makes the top-heavy minimum allocation under
another plan, this Plan does not provide the top-heavy minimum
allocation, and the Plan Administrator will allocate the annual
Company contributions (and Participant forfeitures) under the Plan
solely in accordance with the allocation method under Section 4.04(a).
4.05 FORFEITURE ALLOCATION. The amount of a Participant's Accrued Benefit
forfeited under the Plan is a Participant forfeiture. Subject to any restoration
allocation required under Sections 6.04 or 10.14, the Plan Administrator will
allocate the forfeiture in accordance with Section 4.04(a), as a Company
contribution for the Plan Year in which the forfeiture occurs, as if the
Participant forfeiture were an additional Company contribution for that Plan
Year. The Plan Administrator will continue to hold the undistributed, non-Vested
portion of a terminated Participant's Accrued Benefit in his or her Account
solely for his or her benefit until a forfeiture occurs at the time specified in
Section 6.09. Except as provided under Section 6.04, a Participant will not
share in the allocation of a forfeiture of any portion of his or her Accrued
Benefit.
4.06 ACCRUAL OF BENEFIT. The Plan Administrator will determine the
allocation conditions which apply to company contributions and Participant
forfeitures on the basis of the Plan Year. Except for purposes of determining
the top-heavy minimum contribution under Section 4.04(b), the Plan Administrator
will take into account only the Compensation determined for the portion of the
Plan Year in which the Employee actually is a Participant.
-20-
(a) Hours of Service Requirement. Subject to the top-heavy minimum
allocation requirement of Section 4.04(b), the Plan Administrator will not
allocate any portion of a Company contribution for a Plan Year to any
Participant's Account if the Participant does not complete a minimum of
1,000 Hours of Service during the Plan Year.
(b) Employment Requirement. A Participant who, during a particular
Plan Year, completes the Hours of Service requirement under this Section
4.06 will not share in the allocation of Company contributions and
Participant forfeitures, if any, for that Plan Year unless he or she is
employed by the Company on the Accounting Date of that Plan Year.
(c) Suspension of Allocation Requirements. The Plan suspends the
allocation requirements under paragraphs (a) and (b) for any Plan Year if
the Plan fails to satisfy the Coverage Test. A Plan satisfies the "Coverage
Test" if, on the last day of the Plan Year, the benefitting ratio of the
Nonhighly Compensated Includible Employees is at least 70 percent of the
benefitting ratio of the Highly Compensated Includible Employees.
The benefitting ratio of the Nonhighly Compensated Includible Employees is
the number of Nonhighly Compensated Includible Employees benefitting under the
Plan over the number of the Includible Employees who are Nonhighly Compensated
Employees. "Includible" Employees are all Employees other than: (1) those
Employees excluded from participating in the Plan for the entire Plan Year by
reason of the Code*s collective bargaining unit exclusion or the Code*s
nonresident alien exclusion or by reason of the age and service requirements of
Article III; and (2) any Employee who incurs a Separation from Service during
the Plan Year and fails to complete at least 501 Hours of Service for the Plan
Year. A "Nonhighly Compensated Includible Employee" is an Employee who is not a
Highly Compensated Includible Employee.
For purposes of the Coverage Test, an Employee is benefitting under the
Plan on a particular date if, under Section 3.02 of the Plan, he/she is entitled
to a Company contribution or a Participant forfeiture allocation for the Plan
Year.
If this paragraph (c) applies for a Plan Year, the Plan Administrator will
suspend the allocation conditions for the Nonhighly Compensated Includible
Employees who are Participants, beginning first with the Includible Employee(s)
employed with the Company on the last day of the Plan Year, then the Includible
Employee(s) who have the latest Separation from Service during the Plan Year,
and continuing to suspend the allocation
-21-
conditions for each Includible Employee who incurred an earlier Separation from
Service, from the latest to the earliest Separation from Service date, until the
Plan satisfies the Coverage Test for the Plan Year. If two or more includible
Employees have a Separation from Service on the same day, the Plan Administrator
will suspend the allocation conditions for all such Includible Employees,
irrespective of whether the Plan can satisfy the Coverage Test by accruing
benefits for fewer than all such Includible Employees. If the Plan suspends the
allocation conditions for an Includible Employee, that Employee will share in
the allocation of the Company contribution and Participant forfeitures, if any,
without regard to whether employed by the Company on the last day of the Plan
Year.
Part 2. Limitations on Allocations: Sections 4.07 and 4.08
4.07 LIMITATIONS ON ALLOCATIONS TO PARTICIPANTS' ACCOUNTS. The amount of
Annual Additions which the Plan Administrator may allocate under this Plan on a
Participant's behalf for a Limitation Year may not exceed the Maximum
Permissible Amount. If the amount the Company otherwise would contribute to the
Participant's Account would cause the Annual Additions for the Limitation Year
to exceed the Maximum Permissible Amount, the Company will reduce the amount of
its contribution so the Annual Additions for the Limitation Year will equal the
Maximum Permissible Amount. If an allocation of Company contributions, pursuant
to Section 4.04, would result in an Excess Amount (other than an Excess Amount
resulting from a reasonable error in estimating a Participant's actual annual
Compensation, because of the allocation of Participant forfeitures or because of
a reasonable error in determining a Participant's Elective Contributions, if
any) to the Participant's Account, the Plan Administrator will reallocate the
Excess Amount to the remaining Participants who are eligible for an allocation
of Company contributions for the Plan Year in which the Limitation Year ends.
The Plan Administrator will make this reallocation on the basis of the
allocation method under the Plan as if the Participant whose Account otherwise
would receive the Excess Amount is not eligible for an allocation of Company
contributions.
(a) Estimation of Compensation. Prior to the determination of the
Participant's actual Compensation for a Limitation Year, the Plan
Administrator may determine the Maximum Permissible Amount on the basis of
the Participant's estimated annual Compensation for such Limitation year.
The Plan Administrator must make this determination on a reasonable and
uniform basis for all Participants similarly situated. The Plan
Administrator must reduce any Company contributions (including any
allocation of forfeitures) based on estimated annual Compensation by any
Excess Amount carried over from prior years. As soon as is administratively
-22-
feasible after the end of the Limitation year, the Plan Administrator will
determine the Maximum Permissible Amount for such Limitation Year on the
basis of the Participant's actual Compensation for such Limitation Year.
(b) More Than One Plan. If the Plan Administrator allocated an Excess
Amount to a Participant's Account on an allocation date of this Plan which
coincides with an allocation date of another defined contribution plan
maintained by the Company, the Excess Amount attributed to this Plan will
be the product of:
(1) The total Excess Amount allocated as of such date (including
any amount which the Plan Administrator would have allocated but for
the limitations of Code(S)415) times;
(2) The ratio of a) the amount allocated to the Participant as
of such date under this Plan divided by b) the total amount allocated
as of such date under all qualified defined contribution plans
(determined without regard to the limitations of Code(S)415).
(c) Disposition of Excess Amount. If, because of a determination of
the Participant's actual Compensation, or because of the allocation of
forfeitures or because of a Participant's Elective Contributions, if any,
there is an Excess Amount with respect to a Participant for a Limitation
Year, the Plan Administrator will dispose of such Excess Amount as follows:
(1) The Plan Administrator first will return to the Participant
any nondeductible Employee contributions and then any Elective
Contributions under a 401(k) arrangement, if any, to the extent the
return would reduce the Excess Amount.
(2) If, after the application of paragraph (1), an Excess Amount
still exists, and the Plan covers the Participant at the end of the
Limitation Year, then the Plan Administrator will use the Excess
Amount(s) to reduce future Company contributions (including any
allocation of forfeitures) under the Plan for the next Limitation Year
and for each succeeding Limitation Year, as is necessary, for the
Participant.
(3) If, after the application of paragraph (1), an Excess Amount
still exists, and the Plan does not cover the Participant at the end
of the Limitation Year, then the Plan Administrator will hold the
Excess Amount unallocated in
-23-
a suspense account. The Plan Administrator will apply the suspense
account to reduce Company Contributions (including allocation of
forfeitures) for all remaining Participants in the next Limitation
Year, and in each succeeding Limitation Year if necessary. Neither the
Company nor any Employee may contribute to the Plan for any Limitation
Year in which the Plan is unable to allocate fully a suspense account
maintained pursuant to this paragraph (3).
(4) The Plan Administrator under paragraphs (2) or (3) will not
distribute any Excess Amount(s) to Participants or to former
Participants.
(d) Defined Benefit Plan Limitation. The Company does not maintain
and never has maintained a defined benefit plan covering any Participant in
this Plan. Accordingly, no special defined benefit plan limitation applies
under this Plan.
4.08 DEFINITIONS - ARTICLE IV. For purposes of Article IV, the following
terms shall mean:
(a) "Annual Addition" means the sum of the following amounts
allocated on behalf of a Participant for a Limitation year, of (i) all
Company contributions and (ii) all forfeitures. Except to the extent
provided in Treasury regulations, Annual Additions include excess
contributions described in Code(S)401(k), excess aggregate contributions
described in Code(S)401(m) and excess deferrals described in Code(S)402(g),
irrespective of whether the Plan distributes or forfeits such excess
amounts. Annual Additions also include Excess Amounts reapplied to reduce
Company contributions under Section 4.07. Annual Additions also include
amounts allocated to an individual medical account (as defined in
Code(S)415(1)(2) included as part of a defined benefit plan maintained by
the Company. Furthermore, Annual Additions include contributions paid or
accrued after December 31, l985, for taxable years ending after December
31, l985, attributable to post-retirement medical benefits allocated to the
separate account of a key employee (as defined in Code(S)419(A)(d)(3))
under a welfare benefit fund (Code(S)419(e)) maintained by the Company, but
only for purposes of the dollar limitation applicable to the Maximum
Permissible Amount.
"Annual Additions" do not include any Company contributions
applied by the Plan Administrator (not later than the due date, including
extensions, for filing the Company's Federal income tax return for that
Plan Year) to pay interest on an Exempt Loan, and any Leveraged Employer
Securities the Plan Administrator allocates as forfeitures; provided,
however, the provisions of this sentence do not
-24-
apply in a Plan Year for which the Plan Administrator allocates more than
one-third of the Company contributions applied to pay principal and
interest on an Exempt Loan to Restricted Participants. The Plan
Administrator may reallocate the Company Contributions in accordance with
Section 4.04 to the Accounts of Nonhighly Compensated Employee-Participants
to the extent necessary in order to satisfy this special limitation.
(b) "Compensation" means, for purposes of applying the limitations of
Part 2 of this Article IV, Compensation as defined in Section 1.10, except,
for Limitation Years beginning prior to January 1, 1998, Compensation does
not include Elective Contributions.
(c) "Maximum Permissible Amount" - The lesser of (i) $30,000 (or, if
greater, the $30,000 amount as adjusted under (S)415(d), or (ii)
twenty-five percent (25%) of the Participant's Compensation for the
Limitation Year. If there is a short Limitation Year because of a change in
the Limitation Year, the Plan Administrator will multiply the $30,000 (or
adjusted) limitation by the following fraction:
Number of Months in the short Limitation Year
12.
(d) "Company" means the Company that adopts this Plan and any related
employers described in Section 1.39. Solely for purposes of applying the
limitations of Part 2 of this Article IV, the Plan Administrator will
determine related employers described in Section 1.34 by modifying Code
(S)(S)414(b) and (c) in accordance with Code (S) 415(h).
(e) "Excess Amount" means the excess of the Participant's Annual
Additions for the Limitation Year over the Maximum Permissible Amount.
(f) "Limitation Year" means the Plan Year. If the Company amends the
Limitation Year to a different 12 consecutive month period, the new
Limitation Year must begin on a date within the Limitation Year for which
the Company makes the amendment, creating a short Limitation Year.
(g) "Defined contribution plan" means a retirement plan which
provides for an individual account for each participant and for benefits
based solely on the amount contributed to the participant's account, and
any income, expenses, gains and losses, and any forfeitures of accounts of
other participants which the plan may
-25-
allocate to such participant's account. The Plan Administrator must treat all
defined contribution plans (whether or not terminated) maintained by the Company
as a single plan. For purposes of the limitations of Part 2 of this Article IV,
the Plan Administrator will treat employee contributions made to a defined
benefit plan maintained by the Company as a separate defined contribution plan.
The Plan Administrator will also treat as a defined contribution plan an
individual medical account (as defined in Code (S)415(1)(2)) included as part of
a defined benefit plan maintained by the Company and, for taxable years ending
after December 31, l985, a welfare benefit fund under Code (S)419(e) maintained
by the Company to the extent there are post-retirement medical benefits
allocated to the separate account of a key employee (as defined in
Code (S)419A(d)(3)).
(h) "Defined benefit plan" means a retirement plan which does not provide
for individual accounts for Company contributions. The Plan Administrator must
treat all defined benefit plans (whether or not terminated) maintained by the
Company as a single plan.
* * *
-26-
ARTICLE V
PARTICIPANT CONTRIBUTIONS
5.01 PARTICIPANT VOLUNTARY CONTRIBUTIONS. The Plan does not permit nor
require Participant voluntary contributions.
5.02 PARTICIPANT ROLLOVER CONTRIBUTIONS. The Plan does not permit
Participant rollover contributions.
* * *
-27-
ARTICLE VI
TERMINATION OF SERVICE - PARTICIPANT VESTING
6.01 NORMAL RETIREMENT AGE. A Participant's Normal Retirement Age is
sixty-two (62) years of age. A Participant who remains in the employ of the
Company after attaining Normal Retirement Age will continue to participate in
Company contributions. A Participant's Accrued Benefit derived from Company
contributions is 100 percent Nonforfeitable upon and after his or her attaining
Normal Retirement Age (if employed by the Company on or after that date). Upon
termination of a Participant's employment for any reason after attaining Normal
Retirement Age, the Plan Administrator shall direct the Trustee to commence
payment of the Participant's Accrued Benefit to him) or to his Beneficiary if
the Participant is deceased), in accordance with the provisions of Article VII.
6.02 PARTICIPANT DISABILITY OR DEATH. If a Participant's employment with
the Company terminates as a result of death or Disability, the Participant's
Accrued Benefit derived from Company contributions will be 100 percent
Nonforfeitable.
6.03 VESTING SCHEDULE.
(a) Vesting in Account-Generally. Except as provided in Sections 6.01
and 6.02, for each Year of Service (unless this Plan is top heavy in the
Plan Year) a Participant's Nonforfeitable percentage of his or her Accrued
Benefit (forfeiting the balance, if any) derived from Company contributions
equals the percentage in the following vesting schedule:
Completed Percent of
Years of Service Nonforfeitable
With the Company Accrued Benefit
---------------- ---------------
Less than 5 .......................... None
5 or more .......................... 100%
(b) Vesting in Account in Top Heavy Years. For any Plan Year for which
the Plan is a top heavy Plan (as defined in Article XIV), the Plan
Administrator shall calculate a Participant's Nonforfeitable percentage of
his or her Accrued Benefit under the following schedule:
-28-
Completed Percent of
Years of Service Nonforfeitable
With the Company Accrued Benefit
---------------- ---------------
Less than 2 ............................. None
2 ...................................... 20%
3 ...................................... 40%
4 ...................................... 60%
5 or more .............................. 100%
The Plan Administrator shall apply the top heavy schedule to Participants
who earn at least one (1) Hour of Service after the top heavy schedule
becomes effective. A shift between vesting schedules under this Section
6.03 is an amendment to the vesting schedule, and the Plan Administrator
shall apply the rules of Section 8.05 accordingly. A shift to a new
vesting schedule under this Section 6.03 is effective on the first day of
the Plan Year for which the top heavy status of the Plan changes.
(c) Special Vesting Schedule. If the Trustee makes a distribution
(other than a cash-out distribution described in Section 6.04) to a
partially-Vested Participant, and the Participant has not incurred a
Forfeiture Break in Service at the relevant time, the Plan Administrator
will establish a separate Account for the Participant's Account Balance.
At any relevant time following the distribution, the Plan Administrator
will determine the Participant's Vested Account Balance derived from
Company contributions in accordance with the following formula: P(AB + (R)
x D)) - (R) x D).
To apply this formula, "P" is the Participant's current vesting
percentage at the relevant time, "AB" is the Participant's Company-derived
Account Balance at the relevant time, "R" is the ratio of "AB" to the
Participant's Company-derived Account Balance immediately following the
earlier distribution and "D" is the amount of the earlier distribution.
If, under a restated Plan, the Plan has made distribution to a
partially-Vested Participant prior to its restated Effective Date and is
unable to apply the cash-out provisions of Section 6.04 to that prior
distribution, this special vesting formula also applies to that
Participant's remaining Account Balance.
6.04 CASH-OUT DISTRIBUTIONS TO PARTIALLY-VESTED PARTICIPANTS/RESTORATION
OF FORFEITED ACCRUED BENEFIT. If, pursuant to Article VII, a partially-Vested
Participant receives a cash-out distribution before he or she incurs a
Forfeiture Break in Service (as defined in Section 6.08), the
-29-
cash-out distribution will result in an immediate forfeiture of the non-Vested
portion of the Participant's Accrued Benefit derived from Company contributions.
See Section 6.09. A partially-Vested Participant is a Participant whose
Nonforfeitable percentage determined under Section 6.03 is less than 100
percent. If the value of a Participant's Nonforfeitable Accrued Benefit is zero,
the Participant shall be deemed to have received a distribution of such
Participant's Nonforfeitable Accrued Benefit. A cash-out distribution is a
distribution of the entire present value of the Participant's Vested Account
Balance upon Separation from Service.
(a) Restoration and Conditions Upon Restoration. A partially-Vested
Participant who is re-employed by the Company after receiving a cash-out
distribution of the Vested percentage of his or her Accrued Benefit may
repay the Trustee the amount of the cash-out distribution attributable to
Company contributions unless the Participant no longer has a right to
restoration under the requirements of this Section 6.04. If a
partially-Vested Participant makes the cash-out distribution repayment, the
Plan Administrator, subject to the conditions of this paragraph (a), must
restore his or her Accrued Benefit attributable to Company contributions to
the same dollar amount as the dollar amount of his or her Accrued Benefit
on the Accounting Date, or other evaluation date, immediately preceding the
date of the cash-out distribution, unadjusted for any gains or losses
occurring subsequent to that Accounting Date, or other valuation date.
Restoration of the Participant's Accrued Benefit shall include restoration
of all Code (S)411(d)(6) protected benefits with respect to that restored
Accrued Benefit, in accordance with applicable Treasury regulations. The
Plan Administrator shall not restore a re-employed Participant's Accrued
Benefit under this section 6.04 if:
(1) five (5) years have elapsed since the Participant's first
re-employment date following the cash-out distribution;
(2) the Participant is not in the Company's Service on the date
the Participant makes his or her request to repay his or her cash-out
distribution; or
(3) the Participant incurred a Forfeiture Break in Service (as
defined in Section 6.08). This condition also applies if the
Participant makes repayment within the Plan Year in which he or she
incurs the Forfeiture Break in Service and that Forfeiture Break in
Service would result in a complete forfeiture of the amount the Plan
Administrator otherwise would restore.
-30-
(b) Time and Method of Restoration. If none of the conditions in Section
6.04(c) preventing restoration of the Participant's Accrued Benefit applies, the
Plan Administrator will restore the Participant's Accrued Benefit as of the Plan
Year Accounting Date coincident with or immediately following the repayment. To
restore the Participant's Accrued Benefit, the Plan Administrator, to the extent
necessary, will allocate to the Participant's Account:
(1) first, the amount, if any, of Participant forfeitures the Plan
Administrator would otherwise allocate under Section 4.05;
(2) second, the amount, if any, of the Trust Fund net income or gain
for the Plan Year; and
(3) Third, the Company contribution for the Plan Year to the extent
made under a discretionary formula.
To the extent the amount(s) described in clauses (1), (2) and (3) are
insufficient to enable the Plan Administrator to make the required restoration,
the Company must contribute, without regard to any requirement or condition of
Article IV, the additional amount as is necessary to enable the Plan
Administrator to make the required restoration. If, for a particular Plan Year,
the Plan Administrator must restore the Accrued Benefit of more than one (1)
re-employed Participant, then the Plan Administrator will make the restoration
allocation(s) to each such Participant's Account in the same proportion that a
Participant's restored amount for the Plan Year bears to the restored amount for
the Plan Year of all re-employed Participants. The Plan Administrator shall not
take into account the allocation(s) under this Section 6.04 in applying the
limitation on allocations under Part 2 of Article IV.
(c) 0 Percent Vested Participant. The deemed cash-out rule applies to a 0
percent Vested Participant. A 0 percent Vested Participant is a Participant
whose Accrued Benefit derived from Company contributions is entirely forfeitable
at the time of his or her Separation from Service. If the Participant's Account
is not entitled to an allocation of Company contributions for the Plan Year in
which he or she has a Separation from Service, the Plan Administrator will apply
the deemed cash-out rule as if the 0 percent Vested Participant received a
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cash-out distribution on the date of Participant's Separation from Service.
If the Participant's Account is entitled to an allocation of Company
contributions or Participant forfeitures for the Plan Year in which he or
she has a Separation from Service, the Plan Administrator will apply the
deemed cash-out rule as if the 0 percent Vested Participant received a
cash-out distribution on the first day of the first Plan Year beginning
after his or her Separation from Service. For purposes of applying the
restoration provisions of this Section 6.04, the Plan Administrator will
treat the 0 percent Vested Participant as repaying his or her cash-out
"distribution" on the first date of his or her re-employment with the
Company.
6.05 ACCOUNTING FOR REPAID AMOUNT. As soon as is administratively
practicable, the Plan Administrator will credit to the Participant's Account the
cash-out amount a Participant has repaid to the Plan. Pending the restoration of
the Participant's Account Balance, the Plan Administrator may direct the Trustee
to maintain a temporary segregated investment Account in the name of the
Participant if necessary to prevent a distortion of income, gain or loss
allocations under Section 9.08. The Plan Administrator will direct the Trustee
to repay to the Participant as soon as is administratively practicable the full
amount of the Participant's repaid cash-out amount if the Plan Administrator
determines any of the conditions of Section 6.04(a) prevents restoration as of
the applicable Accounting Date, notwithstanding the Participant's repayment.
6.06 YEAR OF SERVICE - VESTING. For purposes of vesting under Section 6.03,
Year of Service means any Plan Year during which the Employee completes not less
than one thousand (1,000) Hours of Service with the Company.
6.07 BREAK IN SERVICE - VESTING. For purposes of this Article VI, a
Participant incurs a Break in Service if during any Plan Year he or she does not
complete more than five hundred (500) Hours of Service with the Company. The
Plan does not apply the Break in Service rule under Code (S)411(a)(6)(B).
Therefore, an Employee need not complete a Year of Service after a Break in
Service before the Plan takes into account the Employee's otherwise includible
Years of Service under this Article VI. This Plan also does not apply the Parity
Break in Service rule under Code (S)411(a)(6)(D).
6.08 INCLUDED YEARS OF SERVICE - VESTING. For purposes of determining
"Years of Service" under Section 6.06, the Plan takes into account all Years of
Service an Employee completes with the Company, except:
(a) any Year of Service after the Participant first incurs a
Forfeiture Break in Service or receives a cash-out distribution (unless the
Plan Administrator restores the Participant's Account under Section
6.04(a)). The Participant incurs a "Forfeiture Break in Service" when he or
she incurs five (5) consecutive Breaks in Service. This exception shall
apply for the sole purpose of determining a Participant's Nonforfeitable
percentage of his or her Accrued Benefit derived from Company
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contributions which accrued for his or her benefit prior to the Forfeiture
Break in Service; and
(b) any Year of Service before the Plan Year in which the Participant
attained the age of eighteen (18).
6.09 FORFEITURE OCCURS. A Participant's forfeiture, if any, of his or her
Accrued Benefit derived from Company contributions occurs under the Plan on the
earlier of:
(a) the last day of the Plan Year in which the Participant first
incurs a Forfeiture Break in Service; or
(b) the date the Participant receives a cash out distribution.
Notwithstanding anything in this Plan to the contrary, as of the date on
which the Company shall discharge any Employee for theft, embezzlement,
obtaining funds or property under false pretenses or for any similar action, or
the Company shall discharge any Employee for assisting a competitor without
permission, interfering with the Company's relationship with a customer or any
similar action, or if any Employee who has terminated his or her Service with
the Company violates any noncompetition provision under an agreement with the
Company. However, this Section 6.09(c) shall not apply: (i) if the Employee has
at least five (5) Years of Service for purposes of Section 6.03 through Section
6.08; (ii) to the extent the Employee's Accrued Benefit is nonforfeitable by
reason of Section 6.03(b) prior to the effective date of his or her termination;
(iii) if the Employee has attained Normal Retirement Age; (iv) to the extent the
Employee's Accrued Benefit is Nonforfeitable as of the Effective Date; and (v)
if the Employee has five or more Years of Service as of the Effective Date and
elects to apply Section 6.03(b) in determining the Nonforfeitable portion of his
or her Accrued Benefit.
The Plan Administrator determines the percentage of Participant's Accrued
Benefit forfeiture, if any, under this Section 6.09 solely by reference to the
vesting schedule of Section 6.03. A Participant will not forfeit any portion of
his or her Accrued Benefit for any other reason or cause except as expressly
provided by this Section 6.09 or as provided by Section 10.14.
Furthermore, if the Participant's Account is entitled to an allocation of
Company contributions or Participant forfeitures for the Plan Year in which he
or she otherwise would incur a forfeiture under this Section 6.09 by reason of a
cash-out distribution, the
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Plan Administrator will apply the cash-out forfeiture rule as if the
partially-Vested Participant received a cash-out distribution on the first day
of the immediately following Plan Year.
6.10 AMENDMENT TO VESTING SCHEDULE. Though the Employer reserves the right
to amend the vesting schedule at any time, the Plan Administrator will not apply
the amended vesting schedule to reduce the Vested percentage (determined as of
the later of the date the Company adopts the Amendment, or the date the
amendment becomes effective) of any Participant's existing and future Account
Balance derived from Company contributions to a percentage less than the Vested
percentage computed under the Plan without regard to the amendment. An amended
vesting schedule will apply to a Participant only if the Participant receives
credit for at least one Hour of Service after the new schedule becomes
effective.
If the Company makes a permissible amendment to the vesting schedule, each
Participant having at least three Years of Service with the Company may elect to
have the percentage of his/her Nonforfeitable Accrued Balance computed under the
Plan without regarding to the amendment. The Participant must file his or her
election with the Plan Administrator within 60 days of the latest of: (a) the
Company's adoption of the amendment; (b) the effective date of the amendment; or
(c) the Participant's receipt of a copy of the amendment. The Plan
Administrator, as soon as practicable, must forward a true copy of any amendment
to the vesting schedule to each affected Participant, together with an
explanation of the effect of the amendment, the appropriate form upon which the
Participant may make an election to remain under the vesting schedule provided
under the Plan prior to the amendment and notice of the time within which the
Participant must make an election to remain under the prior vesting schedule.
The election described in Section 6.10 does not apply to a Participant if the
amended vesting schedule provides for vesting at least as rapid at any time as
the vesting schedule in effect prior to the amendment. The election described in
this Section 6.10 does not apply to a Participant if the amended vesting
schedule provides for vesting at least as rapid at any time as the vesting
schedule in effect prior to the amendment. For purposes of this Section 6.10, an
amendment to the vesting schedule include any Plan amendment which directly or
indirectly affects the computation of the Vested percentage of an Employee's
rights to his/her Company derived Account Balance. Furthermore, the Plan
Administrator must treat any shift in the vesting schedule, due to a change in
the Plan's top-heavy status, as an amendment to the vesting schedule for
purposes of this Section 6.10.
* * *
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ARTICLE VII
TIME AND METHOD OF PAYMENT OF BENEFITS
7.01 TIME OF PAYMENT OF ACCRUED BENEFIT. Unless, pursuant to Section 7.03,
the Participant or the Beneficiary elects in writing to a different time of
payment, the Plan Administrator will direct the Trustee to make distribution of
a Participant's Nonforfeitable Accrued Benefit in accordance with this Section
7.01. A Participant must consent, in writing, to any distribution required if
the present value of the Participant's Nonforfeitable Accrued Benefit, at the
time of the distribution to the Participant, exceeds $5,000 and the Participant
has not attained Normal Retirement Age.
(a) Distribution Upon Separation from Service for a Reason Other Than
Death.
(1) Participant's Nonforfeitable Accrued Benefit Not Exceeding
$5,000. Upon the Participant's Separation from Service for any reason
other than death, the Plan Administrator will direct the Trustee to
distribute the Participant's Nonforfeitable Accrued Benefit not
exceeding $5,000 in a lump sum as soon as administratively
practicable, but in no event later than the 60/th/ day following the
close of the Plan Year in which the Participant attains Normal
Retirement Age, or if later, no later than the 60/th/ day following
the close of the Plan Year in which the Participant's Separation from
Service occurs.
(2) Participant's Nonforfeitable Accrued Benefit Exceeds $5,000.
Upon the Participant's Separation from Service for any reason other
than death, the Plan Administrator will direct the Trustee to
distribute the Participant's Nonforfeitable Accrued Benefit exceeding
$5,000 in a form and at the time elected by the Participant pursuant
to Section 7.03. In the absence of an election by the Participant, the
Plan Administrator will direct the Trustee to distribute the
Participant's Nonforfeitable Accrued Benefit in a lump sum on the
60/th/ day following the close of the Plan Year in which the latest of
the following events occurs: (a) the Participant attains Normal
Retirement Age; (b) the Participant attains age 62; or (c) the
Participant separates from Service.
(3) Disability. If the Participant's Separation from Service
occurs because of his or her disability, the Plan Administrator will
direct the Trustee to
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pay the Participant's Nonforfeitable Accrued Benefit in the same manner as
if the Participant had incurred a Separation from Service without
Disability.
(b) Required Beginning Date. If any distribution commencement date
described under paragraph (a), either by Plan provision or by Participant
election or nonelection, is later than the Participant's required beginning
date, the Plan Administrator instead must direct the Trustee to make
distribution on the Participant's required beginning date. A Participant's
required beginning date is the first day of April of the calendar year following
the calendar year in which the Participant attains age 70 1/2, except that the
required beginning date of a Participant who attains age 70 1/2 after December
31, 1999 and who is not a 5 percent owner (as defined in section 1.18(a)) shall
be the first day of April of the calendar year following the later of the
calendar year in which the Participant attains age seventy and one-half (70 1/2)
or the calendar year in which the Participant retires. A mandatory distribution
at the Participant's required beginning date will be in lump sum.
(c) Death of the Participant. The Plan Administrator will direct the
Trustee, in accordance with this Section 7.01(c), to distribute to the
Participant's Beneficiary the Participant's Nonforfeitable Accrued Benefit
remaining in the Trust at the time of the Participant's death all in accordance
with this Article VII.
(1) Deceased Participant's Nonforfeitable Accrued Benefit Does Not
Exceed $5,000. The Plan Administrator must direct the Trustee to pay the
deceased Participant's Nonforfeitable Accrued Benefit in a lump sum, as
soon as administratively practicable following the Participant's death or,
if later, the date on which the Plan Administrator receives notification
of or otherwise confirms the Participant's death.
(2) Deceased Participant's Nonforfeitable Accrued Benefit Exceeds
$5,000. The Plan Administrator will direct the Trustee to pay the deceased
Participant's Nonforfeitable Accrued Benefit at the time elected by the
Participant or, if applicable, by the Beneficiary, as permitted under this
Article VII. In the absence of an election, the Plan Administrator will
direct the Trustee to distribute the Participant's undistributed
Nonforfeitable Accrued Benefit in a lump sum as soon as administratively
practicable following the Participant's death or, if later, as soon as
administratively practicable following the date of the Participant's death
or, if later, the date on which the Plan
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Administrator receives notification of or otherwise confirms the
Participant's death.
If the death benefit is payable to the Participant's surviving
spouse in full, the surviving spouse may elect distribution at any
time this Article VII would permit a Participant to receive
distribution upon Separation from Service.
7.02 METHOD OF PAYMENT OF ACCRUED BENEFIT. The Plan Administrator shall
direct the Trustee to distribute a Participant's Nonforfeitable Accrued Benefit
by payment in a lump sum. Notwithstanding any provision of this Plan to the
contrary, all distributions shall be determined and made in accordance with ss.
401(a)(9) of the Code and the Regulations under (S) 401(a)(9) of the Code. The
Plan Administrator may not direct the Trustee to distribute the Participant's
Nonforfeitable Accrued Benefit, nor may the Participant or the Participant's
Beneficiary elect to have the Trustee distribute his or her Nonforfeitable
Accrued Benefit, under a method of payment which, as of the Required Beginning
Date, does not satisfy the minimum distribution requirements under Code ss.
401(a)(9) and the applicable Treasury Regulations.
7.03 BENEFIT PAYMENT ELECTIONS. Not earlier than 90 days before nor later
than 30 days before the date the Participant's Nonforfeitable Accrued Benefit is
distributed, the Plan Administrator must provide a benefit notice to a
Participant who is eligible to make a benefit payment election. The benefit
notice must explain the Participant's right to postpone distribution until the
applicable date described in Section 7.01(a)(2).
If a Participant or Beneficiary makes a benefit payment election, the Plan
Administrator will direct the Trustee to distribute the Participant's
Nonforfeitable Accrued Benefit in accordance with that election. Any election is
subject to the requirements of Section 7.02 and any other applicable provision
of this Article VII. Upon the Participant's or Beneficiary's request, the Plan
Administrator shall furnish the Participant or Beneficiary an appropriate form
for the making of the election. The Participant or Beneficiary shall make an
election by filing the election form with the Plan Administrator at any time
before the Trustee otherwise would commence to pay a Participant's
Nonforfeitable Accrued Benefit in accordance with the requirements of this
Article VII.
(a) Participant Elections After Separation from Service. If the
present value of a Participant's Nonforfeitable Accrued Benefit exceeds
$5,000, he or she may elect to have the Trustee make distribution as soon
as administratively
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practicable after Separation from Service. The Participant may reconsider an
election at any time and elect to receive distribution as soon as
administratively practicable. A Participant who has separated from Service may
elect distribution as soon as administratively practicable following his or her
attainment of Normal Retirement Age irrespective of the restrictions otherwise
applicable under this Section 7.03(a). If the Participant is partially Vested in
his or her Accrued Benefit, an election to distribute prior to the Participant's
incurring a Forfeiture Break in Service (as defined in Section 6.08), must be in
the form of a cash-out distribution (as defined in Article VI). A Participant
may not receive a cash-out distribution upon Separation from Service if, prior
to the time the Trustee actually makes the cash-out distribution, the
Participant returns to employment with the Company.
(b) Participant Elections Prior to Termination of Employment. After a
Participant attains Normal Retirement Age, the Participant, until he or she
retires, has a continuing election to receive all of his or her Accrued Benefit.
A Participant must make an election to receive an in-Service withdrawal under
this Section 7.03(b) on a form prescribed by the Plan Administrator at any time
during the Plan Year for which the Participant's election is to be effective.
The Trustee must make a distribution of the amount withdrawn to a Participant in
accordance with the election under this Section 7.03(b) as soon as
administratively practicable after the Participant files the written election
with the Trustee in a lump sum.
(c) Determination of Vested Account Balance. For purposes of the consent
requirements under this Article VII, the Plan Administrator determines a
Participant's Vested Account Balance as of the most recent valuation date
immediately prior to the distribution date. The Plan Administrator in
determining the Participant's Vested Account Balance at the relevant time, will
disregarding a Participant's Vested Account Balance existing on any prior date,
except as the Code otherwise may require.
(d) Death Benefit Elections. If the present value of the deceased
Participant's Nonforfeitable Accrued Benefit exceeds $5,000, the Participant's
Beneficiary may elect to have the Trustee distribute the Participant's
Nonforfeitable Accrued Benefit as soon as administratively practicable. The
Beneficiary's election is subject to any restrictions designated in writing by
the Participant and not revoked as of his or her date of death.
(e) Transitional Elections. Notwithstanding the provisions of Sections
7.01 and 7.02, if the Participant or Beneficiary signed a written distribution
designation
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prior to January 1, 1984, the Plan Administrator must distribute the
Participant's Nonforfeitable Accrued Benefit in accordance with that
designation, subject, however, to the requirements, if applicable, of
Sections 7.05 and 7.06. This Section 7.03(d) does not apply to a pre-1984
distribution designation and the Plan Administrator will not comply with
that designation, if any of the following applies: (1) the method of
distribution would have disqualified the Plan under Code Section 401(a)(9)
as in effect on December 31, 1983; (2) the Participant did not have an
Accrued Benefit as of December 31, 1983; (3) the distribution designation
does not specify the timing and form of the distribution and the death
Beneficiaries in order of priority; (4) the substitution of a Beneficiary
modifies the payment period of the distribution; or (5) the Participant or
Beneficiary modifies or revokes the distribution designation. In the event
of a revocation, the Plan must distribute, no later than December 31 of the
calendar year following the year of revocation, the amount which the
Participant would have received under Section 7.02(a) if the election had
not been in effect or, if the Beneficiary revokes the election, the amount
which the Beneficiary would have received under Section 7.02(b) if the
election had not been in effect. The Plan Administrator will apply this
Section 7.03(d) to rollovers and transfers in accordance with Part J of the
Code (S)401(a)(9) regulations.
7.04 ANNUITY DISTRIBUTIONS TO PARTICIPANTS AND SURVIVING SPOUSES. The joint
and survivor annuity requirements of the Code do not apply to this Plan. The
Plan does not provide any annuity distributions to Participants. A transfer
agreement described in Section 16.05 may not permit a plan which is subject to
the provisions of Code (S)417 to transfer assets to this Plan.
7.05 SPECIAL DISTRIBUTION AND PAYMENT REQUIREMENTS. Unless the Participant
elects in writing to have the Trustee apply other distribution provisions of the
Plan, or unless other distribution provisions of the Plan require earlier
distribution of the Participant's Accrued Benefit, the Trustee must distribute
the portion of the Participant's Accrued Benefit attributable to Employer
Securities (the "Eligible Portion") no later than the time prescribed by this
Section 7.05, irrespective of any other provision of the Plan. The distribution
provisions of this Section 7.05 are subject to the consent requirements of the
Plan.
(a) If the Participant separates from Service by reason of the
attainment of Normal Retirement Age, death or Disability, the Plan
Administrator will direct the Trustee to distribute the Eligible Portion
not later than one year after the close of the Plan Year in which that
event occurs.
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(b) If the Participant separates from Service for any reason other than
by reason of the attainment of Normal Retirement Age, death or disability, the
Plan Administrator will direct the Trustee to distribute the Eligible Portion
not later than one year after the close of the Plan Year in which the
Participant incurs a Separation from Service. If the Participant resumes
employment with the Company on or before the last day of the fifth Plan Year
following the Plan Year of his or her Separation from Service, the distribution
provisions of this paragraph (b) do not apply.
For purposes of this Section 7.05, Employer Securities do not include
any Employer Securities acquired with the proceeds of an Exempt Loan until the
close of the Plan Year in which the borrower repays the Exempt Loan in full.
7.06 DIRECT ROLLOVER OF ELIGIBLE ROLLOVER DISTRIBUTIONS.
(a) Participant Election. Notwithstanding any provision of this Plan to
the contrary that would otherwise limit a Participant's election under this
Section, a Participant may elect, at the time and in the manner prescribed by
the Plan Administrator, to have any portion of an eligible rollover distribution
paid directly to an eligible retirement plan specified by the Participant in a
direct rollover designation. For purposes of this Section 7.06, a Participant
includes a Participant's surviving spouse and the Participant's spouse or former
spouse who is an alternate payee.
(b) Rollover and Withholding Notice. At least 30 days and not more than
90 days prior to the Trustee's distribution of an eligible rollover
distribution, the Plan Administrator must provide a written notice (including a
summary notice as permitted under applicable Treasury regulations) explaining to
the Participant the rollover option, the applicability of mandatory 20 percent
federal withholding to any amount not directly rollover over, and the
recipient's right to roll over within 60 days after the date of receipt of the
distribution ("rollover notice.") If applicable, the rollover notice also must
explain the availability of income averaging and the exclusion if net unrealized
appreciation. A recipient of an eligible rollover distribution (whether he or
she elects a direct rollover or elects to receive the distribution) also may
elect to receive distribution at any administratively practicable time which is
earlier than 30 days following receipt of the rollover notice.
(c) Default Rollover. The Plan Administrator, in the case of a
Participant who does not respond timely to the notice described in Section
7.06(b), may make a direct rollover of the Participant's Account (as described
in Revenue Ruling 2000-36
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or in any successor guidance) in lieu of distributing the Participant's Accrued
Benefit.
(d) Definitions. The following definitions apply to this Section 7.06:
(1) Eligible Rollover Distribution. An eligible rollover
distribution is any distribution of all or any portion of the balance
to the credit of the distributee, except that an eligible rollover
distribution does not include:
a) 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;
b) any distribution to the extent such distribution is required
under (S)401(a)(9) of the Code; and
c) 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).
(2) Eligible Retirement Plan. An eligible retirement plan is an
individual retirement account described in (S)408(a) of the Code, an
individual retirement annuity described in (S)408(b) of the Code, an
annuity plan described in (S)403(a) of the Code or a qualified trust
described in (S)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.
(3) Distributee. A distributee includes an Employee or former
Employee and, 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 with regard to the interest of the spouse or
former spouse.
(4) Direct Rollover. A direct rollover is a payment by the Plan to
the eligible retirement plan specified by the distributee.
-41-
7.07 DISTRIBUTIONS UNDER DOMESTIC RELATIONS ORDERS. Nothing contained in
this Plan prevents the Trustee, in accordance with the direction of the Plan
Administrator, from complying with the provisions of a qualified domestic
relations order (or "QDRO") as defined in Code (S)414(p). This Plan specifically
permits distribution to an alternate payee under a qualified domestic relations
order at any time, irrespective of whether the Participant has attained his or
her earliest retirement age (as defined under Code (S)414(p)) under the Plan. A
distribution to an alternate payee prior to the Participant's attainment of
earliest retirement age is available only if: (a) the QDRO specifies
distribution at that time or permits an agreement between the Plan and the
alternate payee to authorize an earlier distribution; and (b) if the present
value of the alternate payee's benefits under the Plan exceeds $5,000, and the
QDRO requires that the alternate payee consent to any distribution occurring
prior to the Participant's attainment of the earliest retirement age. Nothing in
this Section 7.07 permits a Participant a right to receive distribution at a
time otherwise not permitted under the Plan nor does it permit the alternate
payee to receive a form of payment not permitted under the Plan.
The Plan Administrator must establish reasonable procedures to determine
the qualified status of a domestic relations order. Upon receiving a domestic
relations order, the Plan Administrator promptly will notify the Participant and
any alternate payee named in the order, in writing, of the receipt of the order
and Plan's procedures for determining the qualified status of the order. Within
a reasonable period of time after receiving the domestic relations order, the
Plan Administrator must determine the qualified status of the order and must
notify the Participant and each alternate payee, in writing, of its
determination. The Plan Administrator must provide notice under this paragraph
by mailing to the individual's address specified in the domestic relations
order, or in a manner consistent with Department of Labor regulations.
If any portion of the Participant's Nonforfeitable Accrued Benefit is
payable during the period the Plan Administrator is making its determination of
the qualified status of the domestic relations order, the Plan Administrator
must make a separate accounting of the amounts payable. If the Plan
Administrator determines the QDRO is a qualified domestic relations order within
eighteen (18) months of the date amounts first are payable following receipt of
the order, the Plan Administrator will direct the Trustee to distribute the
payable amounts in accordance with the QDRO. If the Plan Administrator does not
make its determination of the qualified status of the order within the eighteen
(18) month determination period, the Plan Administrator will direct the Trustee
to distribute the payable amounts in the manner the Plan would distribute if the
order did not exist and
-42-
shall apply the order prospectively if the Plan Administrator later determines
the order is a QDRO.
To the extent it is not inconsistent with the provisions of the qualified
domestic relations order, the Plan Administrator may direct the Trustee to
invest any partitioned amount in a segregated subaccount or separate account and
to invest the account in Federally insured, interest-bearing savings accounts or
time deposits (or a combination of both), or in other fixed income investments.
A segregated subaccount remains a part of the Trust, but it alone shares in any
income it earns, and it alone bears any expense or loss it incurs. The Trustee
will make any payment or distribution required under this Section 7.07 by
separate benefit check or other separate distribution to the alternate payee(s).
* * *
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ARTICLE VIII
COMPANY ADMINISTRATIVE PROVISIONS
8.01 INFORMATION TO COMMITTEE. The Company must supply current information
to the Plan Administrator as to the name, date of birth, date of employment,
annual compensation, leaves of absence, Years of Service and date of termination
of employment of each Employee who is, or who will be eligible to become, a
Participant under the Plan, together with any other information which the Plan
Administrator considers necessary. The Company's records as to the current
information the Company furnishes to the Plan Administrator are conclusive as to
all persons.
8.02 NO LIABILITY. The Company assumes no obligation or responsibility or
any of its Employees, Participants or Beneficiaries for any act of, or failure
to act, on the part of its Plan Administrator, the Trustee or the Plan
Administrator.
8.03 INDEMNITY OF COMMITTEE. The Company indemnifies and saves harmless the
Plan Administrator and the members of the Plan Administrator, and each of them,
from and against any and all loss resulting from liability to which the Plan
Administrator and the Plan Administrator, or the members of the Plan
Administrator, may be subjected by reason of any act or conduct (except willful
misconduct or gross negligence) in their official capacities in the
administration of this Trust or Plan or both, including all expenses reasonably
incurred in their defense, in case the Company fails to provide such defense.
The indemnification provisions of this Section 8.03 do not relieve the Plan
Administrator or any Plan Administrator member from any liability it may have
under the Act for breach of a fiduciary duty. Furthermore, the Plan
Administrator and the Plan Administrator members and the Company may execute a
letter agreement further delineating the indemnification agreement of this
Section 8.03, provided the letter agreement must be consistent with and must not
violate the Act. The indemnification provisions of this Section 8.03 extend to
the Trustee solely to the extent provided by a letter agreement executed by the
Trustee and the Company.
8.04 COMPANY DIRECTION OF INVESTMENT. The Company has the right to direct
the Trustee with respect to the investment and re-investment of assets
comprising the Trust Fund only if the Trustee consents in writing to permit such
direction. If the Trustee consents to Company direction of investment, the
Trustee and the Company must execute a letter agreement as a part of this Plan
containing such conditions, limitations and other provisions they deem
appropriate before the Trustee will follow any Company direction as respects the
investment or re-investment of any part of the Trust Fund.
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* * *
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ARTICLE IX
PARTICIPANT ADMINISTRATIVE PROVISIONS
9.01 BENEFICIARY DESIGNATION. Any Participant may from time to time
designate, in writing, any person or persons, contingently or successively, to
whom the Trustee shall pay his or her Accrued Benefit (including any life
insurance proceeds payable to the Participant's Account) on event of the
Participant's death and the Participant may designate the time of payment. The
Plan Administrator shall prescribe the form for the written designation of
Beneficiary and, upon the Participant's filing the form with the Plan
Administrator, the form effectively revokes all designations filed prior to that
date by the same Participant.
A married Participant's Beneficiary designation is not valid unless the
Participant's spouse consents, in writing, to the Beneficiary designation. The
spouse's consent must acknowledge the effect of that consent and a notary public
or the Plan Administrator (or its representative) must witness that consent. The
spousal consent requirements of this paragraph do not apply if: (1) the
Participant and his or her spouse are not married throughout the one year period
ending on the date of the Participant's death; (2) the Participant's spouse is
the Participant's sole primary beneficiary; (3) the Plan Administrator is not
able to locate the Participant's spouse; (4) the Participant is legally
separated or has been abandoned (within the meaning of State law) and the
Participant has a court order to that effect; or (5) other circumstances exist
under which the Secretary of the Treasury will excuse the consent requirement.
If the Participant's spouse is legally incompetent to give consent, the spouse's
legal guardian (even if the guardian is the Participant) may give consent.
9.02 NO BENEFICIARY DESIGNATION. If a Participant fails to name a
Beneficiary in accordance with Section 9.01, or if the Beneficiary named
predeceases the Participant or dies before complete distribution of the
Participant's Accrued Benefit as prescribed by the Participant's Beneficiary
form, then the Trustee will pay the Participant's Accrued Benefit in accordance
with Section 7.02 in the following order of priority to:
(a) the Participant's surviving spouse;
(b) the Participant's surviving children, including adopted children,
in equal shares;
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(c) the Participant's surviving parents, in equal shares; or
(d) the legal representative of the estate of the last to die of the
Participant and his or her Beneficiary.
The Plan Administrator will direct the Trustee as to the method and to whom
the Trustee will make payment under this Section 9.02.
9.03 PERSONAL DATA TO COMMITTEE. Each Participant and each Beneficiary of a
deceased Participant must furnish to the Plan Administrator such evidence, data
or information as the Plan Administrator considers necessary or desirable for
the purpose of administering the Plan. The provisions of this Plan are effective
for the benefit of each Participant upon the condition precedent that each
Participant will furnish promptly full, true and complete evidence, data and
information when requested by the Plan Administrator, provided the Plan
Administrator advises each Participant of the effect of his or her failure to
comply with its request.
9.04 ADDRESS FOR NOTIFICATION. Each Participant and each Beneficiary of a
deceased Participant shall file with the Plan Administrator from time to time,
in writing, his or her post office address and any change of post office
address. Any communication, statement or notice addressed to a Participant, or
Beneficiary, at his or her last post office address filed with the Plan
Administrator, or as shown on the records of the Company, binds the Participant,
or Beneficiary, for all purposes of this Plan.
9.05 ASSIGNMENT OR ALIENATION. Subject to Code (S) 414(p) relating to
qualified domestic relations orders, neither a Participant nor a Beneficiary may
anticipate, assign or alienate (either at law or in equity) any benefit provided
under the Plan, and the Trustee will not recognize any such anticipation,
assignment or alienation. Furthermore, a benefit under the Plan is not subject
to attachment, garnishment, levy, execution or other legal or equitable process.
9.06 NOTICE OF CHANGE IN TERMS. The Plan Administrator, within the time
prescribed by the Act and the applicable regulations, must furnish all
Participants and Beneficiaries a summary description of any material amendment
to the Plan or notice of discontinuance of the Plan and all other information
required by the Act to be furnished without charge.
9.07 LITIGATION AGAINST THE TRUST. A court of competent jurisdiction may
authorize any appropriate equitable relief to redress violations of the Act or
to
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enforce any provisions of the Act or the terms of the Plan. A fiduciary may
receive reimbursement of expenses properly and actually incurred in the
performance of its duties with the Plan.
9.08 INFORMATION AVAILABLE. Any Participant in the Plan or any Beneficiary
may examine copies of the Plan description, latest annual report, any bargaining
agreement, this Plan and Trust, contract or any other instrument under which the
Plan was established or is operated. The Plan Administrator will maintain all of
the items listed in this Section 9.08 in its office, or in such other place or
places as it may designate from time to time in order to comply with the
regulations issued under the Act, for examination during reasonable business
hours. Upon the written consent of a Participant or Beneficiary the Plan
Administrator will furnish him or her with a copy of any item listed in this
Section 9.08. The Plan Administrator may make a reasonable charge to the
requesting person for the copy so furnished.
9.09 APPEAL PROCEDURE FOR DENIAL OF BENEFITS. The Plan Administrator shall
provide adequate notice in writing to any Participant or to any Beneficiary
("Claimant") whose claim for benefits under the Plan the Plan Administrator has
denied. The Plan Administrator's notice to the Claimant must set forth:
(a) the specific reason for the denial;
(b) specific references to pertinent Plan provisions on which the Plan
Administrator based its denial;
(c) a description of any additional material and information needed
for the Claimant to perfect his or her claim and an explanation of why the
material or information is needed; and
(d) that any appeal the Claimant wishes to make of the adverse
determination must be in writing to the Plan Administrator within
seventy-five (75) days after receipt of the Plan Administrator's notice of
denial of benefits. The Plan Administrator's notice must further advise the
Claimant that his or her failure to appeal the action to the Plan
Administrator in writing within the seventy-five (75) day period will
render the Plan Administrator's determination final, binding and
conclusive.
If the Claimant should appeal to the Plan Administrator, the Claimant, or
his or her duly authorized representative, may submit, in writing, whatever
issues and comments he
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or she feels are pertinent. The Claimant, or his or her duly authorized
representative, may review pertinent Plan documents. The Plan Administrator will
re-examine all facts related to the appeal and make a final determination as to
whether the denial of benefits is justified under the circumstances. The Plan
Administrator will advise the Claimant of its decision within sixty (60) days of
the Claimant's written request for review, unless special circumstances (such as
a hearing) would make the rendering of a decision within the sixty (60) day
limit unfeasible, but in no event may the Plan Administrator render a decision
respecting a denial for a claim for benefits later than one hundred twenty (120)
days after its receipt of a request for review.
The Plan Administrator's notice of denial of benefits must identify the
name of each member of the Plan Administrator and the name and address of the
Plan Administrator member to whom the Claimant may forward his or her appeal.
9.10 PARTICIPANT DIRECTION OF INVESTMENT. Except as provided in this
Section 9.10, a Participant does not have the right to direct the Trustee with
respect to the investment of re-investment of the assets comprising the
Participant's individual Account. Each Qualified Participant may direct the
Trustee as to the investment of 25 percent of the value of the Participant's
Accrued Benefit attributable to Employer Securities (the "Eligible Accrued
Benefit") within 90 days after the Accounting Date of each Plan Year (to the
extent a direction amount exceeds the amount to which a prior direction under
this Section 9.10 applies) during the Participant's Qualified Election Period.
For the last Plan Year in the Participant's Qualified Election Period, the
Trustee will substitute "50 percent" for "25 percent" in the immediately
preceding sentence. The Qualified Participant must make his or her direction to
the Trustee in writing, the direction may be effective no later than 180 days
after the close of the Plan Year to which the direction applies, and the
direction must specify which, if any, of the investment options the Participant
selects.
A Qualified Participant may choose one of the following investment
options:
(a) The distribution of the portion of his or her Eligible Accrued
Benefit covered by the election. The Trustee will make the distribution
within 90 days after the last day of the period during which the Qualified
Participant may make the election. The provisions of this Plan applicable
to a distribution of Employer Securities apply to this investment option.
(b) The direct transfer of the portion of his or her Eligible Accrued
Benefit covered by the election to another qualified plan of the Company
which accepts such
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transfers, but only if the transferee plan permits employee-directed
investment and does not invest in Employer Securities to a substantial
degree. The Trustee will make the direct transfer no later than 90 days
after the last day of the period during which the Qualified Participant may
make the election.
For purposes of this Section 9.10, the following definitions apply:
(1) "Qualified Participant" means a Participant who has attained
age 55 and who has completed at least 10 years of participation in the
Plan. A "year of participation" means a Plan Year in which the
Participant was eligible for an allocation of Company contributions,
irrespective of whether the Company actually contributed to the Plan
for that Plan Year.
(2) "Qualified Election Period" means the 6 Plan Year period
beginning with the Plan Year in which the Participant first becomes a
Qualified Participant.
A Participant's right under this Section 9.10 to direct the investment of
his or her Account applies solely to Employer Securities acquired by the Plan
after December 31, 1986.
* * *
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ARTICLE X
ADVISORY COMMITTEE - DUTIES WITH RESPECT
TO PARTICIPANTS' ACCOUNTS
10.01 MEMBERS' COMPENSATION, EXPENSES. The Company must appoint an Advisory
Committee to administer the Plan, the members of which may or may not be
Participants in the Plan. The members of the Advisory Committee will serve
without compensation for services as such, but the Company will pay all expenses
of the Advisory Committee, including the expense for any bond required under the
Act.
10.02 TERM. Each member of the Advisory Committee serves until his or her
successor is appointed.
10.03 POWERS. In case of a vacancy in the membership of the Advisory
Committee, the remaining members of the Advisory Committee may exercise any and
all of the powers, authority, duties and discretion conferred upon the Advisory
Committee pending the filling of the vacancy.
10.04 GENERAL. The Advisory Committee has the following powers and duties:
(a) To select a Secretary, who need not be a member of the Advisory
Committee;
(b) To determine the rights of eligibility of an Employee to
participate in the Plan, the value of a Participant's Accrued Benefit and
the Nonforfeitable percentage of each Participant's Accrued Benefit;
(c) To adopt rules of procedure and regulations necessary for the
proper and efficient administration of the Plan provided the rules are not
inconsistent with the terms of this Agreement;
(d) To enforce the terms of the Plan and the rules and regulations it
adopts;
(e) To direct the Trustee as respects the crediting and distribution
of the Trust;
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(f) To review and render decisions respecting a claim for (or denial
of a claim for) a benefit under the Plan;
(g) To furnish the Company with information which the Company may
require for tax or other purposes;
(h) To engage the service of agents whom it may deem advisable to
assist it with the performance of its duties;
(i) To engage the services of an Investment Manager or managers (as
defined in Act Section 3(38)), each of whom shall have full power and
authority to manage, acquire or dispose (or direct the Trustee with respect
to acquisition or disposition) of any Plan asset under its control;
(j) The Advisory Committee must exercise all of its powers, duties
and discretion under the Plan in a uniform and nondiscriminatory manner.
10.05 FUNDING POLICY. The Advisory Committee will review, not less often
than annually, all pertinent Employee information and Plan data in order to
establish the funding policy of the Plan and to determine the appropriate
methods of carrying out the Plan's objectives. The Advisory Committee must
communicate periodically, as it deems appropriate, to the Trustee and to any
Plan Investment Manager the Plan's short-term and long-term financial needs so
investment policy can be coordinated with Plan financial requirements.
10.06 MANNER OF ACTION. The decision of a majority of the members appointed
and qualified controls.
10.07 AUTHORIZED REPRESENTATIVE. The Advisory Committee may authorize any
one (1) of its members, or its Secretary, to sign on its behalf any notices,
directions, applications, certificates, consents, approvals, waivers, letters or
other documents. The Advisory Committee must evidence this authority by an
instrument signed by all members and filed with the Trustee.
10.08 INTERESTED MEMBER. No member of the Advisory Committee may decide or
determine any matter concerning the distribution, nature or method of settlement
of his or her own benefits under the Plan, except in exercising an election
available to that member in his or her capacity as a Participant.
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10.09 INDIVIDUAL ACCOUNTS. The Advisory Committee will maintain, or direct
the Trustee to maintain, a separate Account, or multiple separate Accounts, in
the name of each Participant to reflect the Participant's Accrued Benefit under
the Plan. The Advisory Committee must maintain for a Participant one Account
designated as the "Employer Securities Account" to reflect a Participant's
interest in Employer Securities held by the Trust and another Account designated
as the "General Investments Account" to reflect the Participant's interest in
the Trust Fund attributable to assets other than Employer Securities. If a
Participant re-enters the Plan subsequent to his or her having a Forfeiture
Break in Service (as defined in Section 6.08), the Advisory Committee, or the
Trustee, must maintain a separate Account for the Participant's pre-Forfeiture
Break in Service Accrued Benefit and a separate Account for his or her
post-Forfeiture Break in Service Accrued Benefit unless the Participant's entire
Accrued Benefit under the Plan is 100 percent Nonforfeitable.
The Advisory Committee will make its allocations, or request the Trustee
to make its allocations, to the Accounts of the Participants in accordance with
the provisions of Section 10.11. The Advisory Committee may direct the Trustee
to maintain a temporary segregated investment Account in the name of a
Participant to prevent a distortion of income, gain or loss allocations under
Section 10.11. The Advisory Committee must maintain records of its activities.
10.10 VALUE OF PARTICIPANT'S ACCRUED BENEFIT. The value of each
Participant's Accrued Benefit consists of that proportion of the net worth (at
fair market value) of the Company's Trust Fund which the net credit balance in
his or her Account (exclusive of the cash value of incidental benefit insurance
contracts) bears to the total net credit balance in the Accounts (exclusive of
the cash value of the incidental benefit insurance contracts) of all
Participants plus the cash surrender value of any incidental benefit insurance
contracts held by the Trustee on the Participant's life. The value of a
Participant's Accrued Benefit is its value as of the most recent valuation date
(as defined in Section 10.11).
10.11 ALLOCATIONS TO PARTICIPANT'S ACCOUNTS. A "valuation date" under this
Plan is each Accounting Date and each interim valuation date determined under
Section 11.14. As of each valuation date the Advisory Committee must adjust the
General Investment Accounts to reflect net income, gain or loss since the last
valuation date. The valuation period is the period beginning the day after the
last valuation date and ending on the current valuation date.
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(a) Employer Securities Account. As of the Accounting Date of each Plan
Year, the Advisory Committee first will reduce Employer Securities Accounts
for any forfeitures arising under Section 6.09 and then will credit the
Employer Securities Account maintained for each Participant with the
Participant's allocable share of Employer Securities (including fractional
shares) purchased and paid for by the Trust or contributed in kind to the
Trust, with any forfeitures of Employer Securities and with any stock
dividends on Employer Securities allocated to his or her Employer
Securities Account. The Advisory Committee will allocate Employer
Securities acquired with an Exempt Loan under Section 11.03(b) in
accordance with that Section. Except as otherwise specifically provided in
Section 11.03(b), the Advisory Committee will base allocations to the
Participant's Accounts on dollar values expressed as shares of Employer
Securities or on the basis of actual shares where there is a single class
of Employer Securities. In making a forfeiture reduction under this Section
10.11, the Advisory Committee, to the extent possible, first must forfeit
from a Participant's General Investments Account before making a forfeiture
from his or her Employer Securities Account.
(b) General Investments Account.
Trust Fund Accounts. The allocation provisions of this paragraph apply
to all Participant General Investment Accounts other than segregated
investment Accounts. The Advisory Committee first will adjust the
Participant General Investment Accounts, as those Accounts stood at the
beginning of the current valuation period, by reducing the Accounts for any
forfeitures arising under Section 6.09 or under Section 10.14, for amounts
charged during the valuation period to any Accounts in accordance with
Section 10.13 (relating to distributions) and Section 12.01 (relating to
insurance premiums), for the cash value of incidental benefit insurance
contracts and for the amount of any General Investment Account which the
Trustee has fully distributed since the immediately preceding valuation
date. The Advisory Committee then, subject to the restoration allocation
requirements of Section 6.04 or of Section 10.14, will allocate the net
income, gain or loss pro rata to the adjusted Participant General
Investment Accounts. The allocable net income, gain or loss is the net
income (or net loss), including the increase or decrease in the fair market
value of assets, since the last valuation date. In making its allocation
under this Section 10.11[B], the Advisory Committee will exclude Employer
Securities allocated to Employer Securities Accounts, stock dividends on
allocated Employer Securities and interest paid by the Trust on an Exempt
Loan. The Advisory Committee will include as income (available for payment
on an Exempt Loan) any
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cash dividends on Employer Securities except cash dividends which the
Advisory Committee has directed the Trustee to distribute in accordance
with Section 11.08.
Segregated Investment Accounts. A segregated investment Account
receives all income it earns and bears all expense or loss it incurs. As of
the valuation date, the Advisory Committee must reduce a segregated Account
for any forfeiture arising under Section 6.09 after the Advisory Committee
has made all other allocations, changes or adjustments to the Account for
the Plan Year.
Additional Rules. An Excess Amount or suspense account described in
Part 2 of Article IV does not share in the allocation of net income, gain
or loss described in this Section 10.11[B]. This Section 10.11[B] applies
solely to the allocation of net income, gain or loss of the Trust. The
Advisory Committee will allocate the Company contributions and Participant
forfeitures, if any, in accordance with Article IV.
10.12 INDIVIDUAL STATEMENT. As soon as practicable after the Accounting
Date of each Plan Year but within the time prescribed by the Act and the
regulations under the Act, the Plan Administrator will deliver to each
Participant (and to each Beneficiary) a statement reflecting the condition of
his or her Accrued Benefit in the Trust as of that date and such other
information the Act requires be furnished the Participant or Beneficiary. No
Participant, except a member of the Advisory Committee, has the right to inspect
the records reflecting the Account of any other Participant.
10.13 ACCOUNT CHARGED. The Advisory Committee will charge all distributions
made to a Participant or to his or her Beneficiary from his or her Account
against the Account of the Participant when made. The Plan Administrator also
will charge a Participant's Account for any reasonable administrative expenses
incurred by the Plan directly related to that Account.
10.14 LOST PARTICIPANTS. If the Plan Administrator is unable to locate any
Participant or Beneficiary whose Account becomes distributable under Article VI
or under Section 14.04 (a "Lost Participant"), the Plan Administrator will apply
the provisions of this Section 10.14.
a) Attempt to Locate. The Plan Administrator will use one or more of
the following methods to attempt to locate a lost Participant: (1) provide
a distribution notice to the lost Participant at his/her last known address
by certified or registered mail; (2) use of the IRS letter forwarding
program under Rev. Proc. 94-22; (3) use of
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a commercial locator service, the internet or other general search method; or
(4) use of the Social Security Administration search program.
(b) Failure to Locate. If a lost Participant remains unlocated for six
months following the date of the Plan Administrator first attempts to locate the
lost Participant using one or more of the methods described in Section 10.14(a),
the Plan Administrator may forfeit the lost Participant's Account. If the Plan
Administrator will forfeit the lost Participant's Account, the forfeiture occurs
at the end of the above-described six month period and the Plan Administrator
will allocate the forfeiture in accordance with Section 4.04. If a lost
Participant whose Account was forfeited thereafter at any time but before the
Plan has been terminated makes a claim for his/her forfeited Account, the Plan
Administrator will restore the forfeited Account to the same dollar amount as
the amount forfeited, unadjusted for net income, gains or losses occurring
subsequent to the forfeiture. The Plan Administrator will make the restoration
in the Plan Year in which the lost Participant makes the claim, first from the
amount, if any, of Participant forfeitures the Plan Administrator otherwise
would allocate for the Plan Year, then from the amount, if any, of Trust net
income or gain for the Plan Year and last from the amount or additional amount
the Employer contributes to the Plan for the Plan Year. The Plan Administrator
will distribute the restored Account to the lost Participant not later than 60
days after the close of the Plan Year in which the Plan Administrator restores
the forfeited Account.
(c) Nonexclusivity and Uniformity. The provisions of Section 10.14 are
intended to provide permissible but not exclusive means for the Plan
Administrator to administer the Accounts of lost Participants. The Plan
Administrator may utilize any other reasonable method to locate lost
Participants and to administer the Accounts of lost Participants, including the
default rollover under Section 7.06(c) and such other methods as the Revenue
Service or the U.S. Department of Labor ("DOL") may in the future specify. The
Plan Administrator will apply this Section 10.14 in a reasonable, uniform and
nondiscriminatory manner, but may in determining a specific course of action as
to a particular Account, reasonably take into account differing circumstances
such as the amount of a lost Participant's Account, the expense in attempting to
locate a lost Participant, the Plan Administrator's ability to establish and the
expense of establishing a rollover XXX, and other factors. The Plan
Administrator may charge to the Account of a lost Participant the reasonable
expenses incurred under this Section 10.14 and which are associated with the
lost Participant's Account.
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10.15 PLAN CORRECTION. The Plan Administrator in conjunction with the
Employer may undertake such correction of Plan errors as the Plan Administrator
deems necessary, including correction to preserve tax qualification of the Plan
under Code ss. 401(a) or to correct a fiduciary breach under ERISA. Without
limiting the Plan Administrator's authority under the prior sentence, the Plan
Administrator, as it determines to be reasonable and appropriate, may undertake
correction of Plan document, operational, demographic and employer eligibility
failures under a method described in the Plan or under the Employee Plans
Compliance Resolution System ("EPCRS") or any successor program to EPCRS. The
Plan Administrator, as it determines to be reasonable and appropriate, also may
undertake or assist the appropriate fiduciary or plan official in undertaking
correction of a fiduciary breach, including correction under the Voluntary
Fiduciary Correction Program ("VFC") or any successor program to VFC.
10.16 NO RESPONSIBILITY FOR OTHERS. Except as required under ERISA, the
Plan Administrator has no responsibility or obligation under the Plan to
Participants or Beneficiaries for any act (unless the Plan Administrator also
serves in such capacities) required of the Company, the Trustee or of any other
service provider to the Plan. The Plan Administrator is not responsible to
collect any required plan contribution or to determine the correctness or
deductibility or any Company contribution. The Plan Administrator in
administering the Plan is entitled to, but is not required to rely upon,
information which a Participant, Beneficiary, Trustee, the Company, a Plan
service provider or a representatives thereof provides to the Plan
Administrator.
* * *
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ARTICLE XI
TRUSTEE, POWERS AND DUTIES
11.01 ACCEPTANCE. The Trustee accepts the Trust created under the Plan and
agrees to perform the obligations imposed. The Trustee shall provide bond for
the faithful performance of its duties under the Trust to the extent required by
the Act.
11.02 RECEIPT OF CONTRIBUTIONS. The Trustee is accountable to the Company
for the funds contributed to it by the Company, but does not have any duty to
see that the contributions received comply with the provisions of the Plan. The
Trustee is not obliged to collect any contributions from the Company, nor is
obliged to see that funds deposited with it are deposited according to the
provisions of the Plan.
11.03 FULL INVESTMENT POWERS.
(a) Trustee Powers. The Trustee has full discretion and authority with
regard to the investment of the Trust Fund, except with respect to a Plan
asset under the control or direction of a properly appointed Investment
Manager or with respect to a Plan asset subject to Company, Participant or
Advisory Committee direction of investment. The Trustee must coordinate its
investment policy with Plan financial needs as communicated to it by the
Advisory Committee. The Trustee is authorized and empowered, but not by way
of limitation, with the following powers, rights and duties:
(1) to invest the Trust Fund primarily in Employer Securities
("primarily" meaning the authority to hold and to acquire not more than
100 percent of the Trust Fund in Employer Securities) and to invest any
part or all of the Trust Fund in any common or preferred stocks,
open-end or closed-end mutual funds, put and call options, traded on a
national exchange, United States retirement plan bonds, corporate
bonds, debentures, convertible debentures, commercial paper, U.S.
Treasury Bills, U.S. Treasury Notes and other direct or indirect
obligations of the United States Government or its agencies, improved
or unimproved real estate situated in the United States, limited
partnerships, insurance contracts of any type, mortgages, notes or
other property of any kind, real or personal, and to buy or sell
options on common stock on a nationally recognized exchange with or
without holding the underlying common stock, and to make any other
investments the Trustee deems appropriate, as a prudent person would do
under like circumstances with due regard for the purposes of
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this Plan. Any investment made or retained by the Trustee in good faith is
proper but must be of a kind (with the exception of Employer Securities)
constituting a diversification considered by law suitable for trust investments.
(2) to retain in cash so much of the Trust Fund as it may deem advisable to
satisfy liquidity needs of the Plan and to deposit any cash held in the Trust
Fund in a bank account at reasonable interest. If the Trustee is a bank or
similar financial institution supervised by the United States or by a state,
this paragraph (b) includes specific authority to invest in any type of deposit
of the Trustee (or of a bank related to the Trustee within the meaning of Code
ss. 414(b)) at a reasonable rate of interest or in a common trust fund (the
provisions of which govern the investment of such assets and which the Plan
incorporates by this reference) as described in Code ss. 584 which the Trustee
(or its affiliate as defined in Code ss. 1504) maintains exclusively for the
collective investment of money contributed by the bank in its capacity as
Trustee and which conforms to the rules of the Comptroller of the Currency;
(3) to manage, sell, contract to sell, grant options to purchase, convey,
exchange, transfer, abandon, improve, repair, insure, lease for any term even
though commencing in the future or extending beyond the term of the Trust, and
otherwise deal with all property, real or personal, in such manner, for such
considerations and on such terms and conditions as the Trustee decides;
(4) to credit and distribute the Trust as directed by the Advisory
Committee. The Trustee is not obliged to inquire as to whether any payee or
distributee is entitled to any payment or whether the distribution is proper or
within the terms of the Plan, or as to the manner of making any payment or
distribution. The Trustee is accountable only to the Advisory Committee for any
payment or distribution made by it in good faith on the order or direction of
the Advisory Committee;
(5) to issues notes or other obligations or otherwise borrow money, to
assume indebtedness, extend mortgages and encumber by mortgage or pledge;
(6) to compromise, contest, contest, arbitrate or abandon claims and
demands, in its discretion;
(7) to vote, subject to Section 11.16, all voting stock held by the Trust
Fund;
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(8) to lease for oil, gas and other mineral purposes and to create mineral
severances by grant or reservation; to pool or unitize interests in oil, gas and
other minerals; and to enter into operating agreements and to execute division
and transfer orders;
(9) to hold any securities or other property in the name of the Trustee or
its nominee, with depositories or agent depositories, or in another form as it
may deem best, with or without disclosing the trust relationship;
(10) to perform any and all other acts in its judgment necessary or
appropriate for the proper and advantageous management, investment and
distribution of the Trust;
(11) to retain any funds or property subject to any dispute without
liability for the payment of interest, and to decline to make payment or
delivery of the funds or property until final adjudication is made by a court of
competent jurisdiction;
(12) to file all tax returns required of the Trustee;
(13) to furnish to the Company and the Plan Administrator an annual
statement of account showing the condition of the Trust Fund and all investment,
receipts, disbursements and other transactions effected by the Trustee during
the Plan Year covered by the statement and also stating the assets of the Trust
held at the end of the Plan Year, which accounts shall be conclusive on all
persons, including the Company and the Plan Administrator, except as to any act
or transaction concerning which the Company and the Plan Administrator files
with the Trustee written exceptions or objections within ninety (90) days after
the receipt of the accounts, or for which the Act authorizes a longer period
within which to object; and
(14) to begin, maintain or defend any litigation necessary in connection
with the administration of the Plan, except that the Trustee is not obliged or
required to do so unless indemnified to its satisfaction. The Trustee will
allocate any insurance proceeds received from the purchase of insurance
contracts under paragraph (a) to Participants' Accounts in the same manner as
the allocation under Section 4.04 of the Company contribution for the Plan Year
in which the death of the insured Participant occurs.
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(b) Exempt Loan. This Section 11.03(b) specifically authorizes the Trustee
to enter into an Exempt Loan transaction. The following terms and conditions
will apply to any Exempt Loan:
(1) The Trustee will use the proceeds of the loan within a reasonable
time after receipt only for any or all of the following purposes: (i) to
acquire Employer Securities, (ii) to repay such loan, or (iii) to repay a
prior Exempt Loan. Except as provided under Article XIII, no Employer
Security acquired with the proceeds of an Exempt Loan may be subject to a
put, call or other option, or buy-sell or similar arrangement while held by
and when distributed from this Plan, whether or not this Plan is then an
employee stock ownership plan.
(2) The interest rate of the loan may not be more than a reasonable
rate of interest.
(3) Any collateral the Trustee pledges to the creditor must consist
only of the assets purchased by the borrowed funds and those assets the
Trust used as collateral on the prior Exempt Loan repaid with the proceeds
of the current Exempt Loan.
(4) The creditor may have no recourse against the Trust under the loan
except with respect to such collateral given for the loan, contributions
(other than contributions of Employer Securities) that the Company makes to
the Trust to meet its obligations under the loan, and earnings attributable
to such collateral and the investment of such contributions. The payment
made with respect to an Exempt Loan by the Plan during a Plan Year must not
exceed an amount equal to the sum of such contributions and earnings
received during or prior to the year less such payments in prior years. The
Plan Administrator and the Trustee must account separately for such
contributions and earnings in the books of account of the Plan until the
Trust repays the loan.
(5) In the event of default upon the loan, the value of Plan assets
transferred in satisfaction of the loan must not exceed the amount of the
default, and if the lender is a Disqualified Person, the loan must provide
for transfer of Plan assets upon default only upon and to the extent of the
failure of the Plan to meet the payment schedule of the loan.
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(6) The Trustee must add and maintain all assets acquired with the
proceeds of an Exempt Loan in a suspense Account referred to in this
Article XI as the "Exempt Loan Suspense Account." In withdrawing assets
from the Suspense Account, the Trustee will apply the provisions of Treas.
Reg. (S)(S) 54.4975-7(b)(8) and (15) as if all securities in the Exempt
Loan Suspense Account were encumbered. Upon the payment of any portion of
the loan, the Trustee will effect the release of assets in the Exempt Loan
Suspense Account from encumbrances. For each Plan Year during the duration
of the loan, the number of Employer Securities released must equal the
number of encumbered Employer Securities held immediately before release
for the current Plan Year multiplied by a fraction. The numerator of the
fraction is the amount of principal and interest paid for the Plan Year.
The denominator of the fraction is the sum of the numerator plus the
principal and interest to be paid for all future Plan Years. The number of
future Plan Years under the loan must be definitely ascertainable and must
be determined without taking into account any possible extension or renewal
periods. If the interest rate under the loan is variable, the interest to
be paid in future Plan Years must be computed by using the interest rate
applicable as of the end of the Plan Year. If collateral includes more than
one class of Employer Securities, the number of Employer Securities of each
class to be released for a Plan Year must be determined by applying the
same fraction to each such class. The Plan Administrator will allocate
assets withdrawn from the Exempt Loan Suspense Account to the Accounts of
Participants who otherwise share in the allocation of the Company's
contribution for the Plan Year for which the Trustee has paid the portion
of the loan resulting in the release of the assets. The Plan Administrator
consistently will make this allocation as of each Accounting Date on the
basis of non-monetary units, taking into account the relative Compensation
of all such Participants for such Plan Year.
(7) The loan must be for a specific term and may not be payable at the
demand of any person except in the case of default.
(8) Notwithstanding the fact this Plan ceases to be an employee stock
ownership plan, Employer Securities acquired with the proceeds of an Exempt
Loan will continue after the Trustee repays the loan to be subject to the
provisions of Treas. Reg (S)(S) 54.4975-7(b)(4), (10), (11) and (12)
relating to put, call or other options and to buy-sell or similar
arrangements, except to the extent these regulations are inconsistent with
Code (S) 409(h).
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11.04 RECORDS AND STATEMENTS. The records of the Trustee pertaining to the
Plan must be open to the inspection of the Plan Administrator and the Company at
all reasonable times and may be audited from time to time by any person or
persons as the Company and Plan Administrator may specify in writing. The
Trustee shall furnish the Plan Administrator with whatever information relating
to the Trust Fund the Plan Administrator considers necessary.
11.05 FEES AND EXPENSES FROM FUND. The Trustee will receive reasonable
annual compensation as may be agreed upon from time to time between the Company
and the Trustee. The Trustee will pay all fees and expenses reasonably incurred
by it in its administration of the Plan from the Trust Fund unless the Company
pays the fees and expenses. The Plan Administrator shall not treat any fee or
expense paid, directly or indirectly, by the Company as a Company contribution,
provided the fee or expense relates to the ordinary and necessary administration
of the Fund. No person who is receiving full pay from the Company shall receive
compensation for services as Trustee from the Trust Fund.
11.06 PARTIES TO LITIGATION. Except as otherwise provided by the Act, only
the Company and the Plan Administrator and the Trustee are necessary parties to
any court proceeding involving the Trustee or the Trust Fund. No Participant, or
Beneficiary, is entitled to any notice of process unless required by the Act.
Any final judgment entered in any proceeding will be conclusive upon the Company
and the Plan Administrator, the Trustee, Participants and Beneficiaries.
11.07 PROFESSIONAL AGENTS. The Trustee may employ and pay from the Trust
Fund reasonable compensation to agents, attorneys, accountants and other persons
to advise the Trustee as in its opinion may be necessary. The Trustee may
delegate to any agent, attorney, accountant or other person selected by it any
non-Trustee power or duty vested in it by the Plan, and the Trustee may act or
refrain from acting on the advice or opinion of any agent, attorney, accountant
or other person so selected.
11.08 DISTRIBUTION OF TRUST FUND. The Trustee shall make all distributions
of benefits under the Plan in Employer Securities valued at fair market value at
the time of distribution, provided, however:
(a) If a Participant's nonforfeitable Accrued Benefit would consist
of less than 500 shares of Employer Securities based on the number of
shares allocated to the Participant's Employer Securities Account and the
number of full shares of Employer Securities that could be purchased with
the balance of the Participant's
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General Investment Account as of the valuation date immediately preceding
the date of a distribution to the Participant, then the Participant or his
or her Beneficiary may elect to receive the Participant's nonforfeitable
Accrued Benefit (i) in shares of Employer Securities or (ii) in cash in an
amount equal to the bid price for such shares on an over-the-counter market
(or the average of the highest and lowest selling prices quoted on a stock
exchange, as the case may be) on a trading date not more than three (3)
business days preceding the date of distribution; and
(b) the Trustee shall pay in cash any fractional share of Employer
Securities to which a Participant or his or her Beneficiary is entitled.
Except as provided in paragraph (a) above, in the event the Trustee is to make a
distribution in shares of Employer Securities, the Trustee shall apply any
balance in a Participant's General Investments Account to provide shares of
Employer Securities for distribution at the fair market value as of the
valuation date immediately preceding the distribution.
If the Company's charter or bylaws restrict ownership of substantially all
shares of Employer Securities to Employees and the Trust, as described in Code
(S)409(h)(2), the Trustee will make the distribution of a Participant's Accrued
Benefit entirely in cash.
Notwithstanding the preceding provisions of this Section 11.08, the
Trustee, if directed in writing by the Plan Administrator, will pay, in cash,
any cash dividends on Employer Securities allocated, or allocable to
Participants, Employer Securities Accounts, irrespective of whether a
Participant is fully Vested in his or her Employer Securities Account. The Plan
Administrator's direction must state whether the Trustee is to pay the cash
dividend distributions currently, or within the 90 day period following the
close of the Plan Year in which the Company pays the dividends to the Trust. The
Plan Administrator may request the Company to pay dividends on Employer
Securities directly to Participants.
11.09 DISTRIBUTION DIRECTIONS. If no one claims a payment or distribution
made from the Trust, the Trustee shall promptly notify the Plan Administrator
and then dispose of the payment in accordance with the subsequent direction of
the Plan Administrator.
11.10 THIRD PARTY. No person dealing with the Trustee is obligated to see
to the proper application of any money paid or property delivered to the
Trustee, or to inquire whether the Trustee has acted pursuant to any of the
terms of the Plan. Each
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person dealing with the Trustee may act upon any notice, request or
representation in writing by the Trustee, or by the Trustee's duly authorized
agent, and is not liable to any person in so acting. The certificate of the
Trustee that it is acting in accordance with the Plan will be conclusive in
favor of any person relying on the certificate. If more than two persons act as
Trustee, the decision of a majority of such persons controls with respect to any
decision regarding the administration or investment of the Trust Fund.
11.11 RESIGNATION. The Trustee may resign at any time as Trustee of the
Plan by giving thirty (30) days' written notice in advance to the Company and to
the Plan Administrator. If the Company fails to appoint a successor Trustee
within 60 days of its receipt of the Trustee's written notice of resignation,
the Trustee will treat the Company as having appointed itself as Trustee and as
having filed its acceptance of appointment with the former Trustee.
11.12 REMOVAL. The Company, by giving thirty (30) days' written notice in
advance to the Trustee, may remove any Trustee. In the event of the resignation
or removal of a Trustee, the Company must appoint a successor Trustee if it
intends to continue the Plan. If two or more persons hold the position of
Trustee, in the event of the removal of one such person, during any period the
selection of a replacement is pending, or during any period such person is
unable to serve for any reason, the remaining person or persons will act as the
Trustee.
11.13 INTERIM DUTIES AND SUCCESSOR TRUSTEE. Each successor Trustee succeeds
to the title to the Trust vested in its predecessor by accepting in writing its
appointment as successor Trustee and filing the acceptance with the former
Trustee and the Plan Administrator without the signing or filing of any further
statement. The resigning or removed Trustee, upon receipt of acceptance in
writing of the Trust by the successor Trustee, must execute all documents and do
all acts necessary to vest the title of record in any successor Trustee. Each
successor Trustee has and enjoys all of the powers, both discretionary and
ministerial, conferred under this Agreement upon its predecessor. A successor
Trustee is not personally liable for any act or failure to act of any
predecessor Trustee, except as required under the Act. With the approval of the
Company and the Plan Administrator, a successor Trustee, with respect to the
Plan, may accept the account rendered and the property delivered to it by a
predecessor Trustee without incurring any liability or responsibility for so
doing.
11.14 VALUATION OF TRUST. The Trustee must value the Trust Fund as of each
Accounting Date to determine the fair market value of each Participant's Accrued
Benefit in the Trust, and the Trustee also must value the Trust Fund on such
other dates as
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directed by the Plan Administrator. With respect to activities carried on by the
Plan, an independent appraiser meeting requirements similar to those prescribed
by Treasury regulations under Code ss. 170(a)(1) must perform all valuations of
Employer Securities which are not readily tradeable on an established securities
market.
11.15 LIMITATION ON LIABILITY - IF INVESTMENT MANAGER APPOINTED. The
Trustee is not liable for the acts or omissions of any Investment Manager or
Managers the Plan Administrator may appoint, nor is the Trustee under any
obligation to invest or otherwise manage any asset of the Plan which is subject
to the management of a properly appointed Investment Manager. The Plan
Administrator, the Trustee and any properly appointed Investment Manager may
execute a letter agreement as a part of this Plan delineating the duties,
responsibilities and liabilities of the Investment Manager with respect to any
part of the Trust Fund under the control of the Investment Manager.
11.16 PARTICIPANT VOTING RIGHTS - EMPLOYER SECURITIES.
[A] Tenders For Employer Securities.
(a) Notwithstanding any other provision of this Plan to the
contrary, if any, but subject to the provisions of subparagraphs (b), (c),
(d), (e) and (f) of this paragraph [A], in the event an offer shall be
received by the Trustee (including but not limited to a tender offer or
exchange offer within the meaning of the Securities Exchange Act of 1934,
as from time to time amended and in effect) to acquire any shares of
Employer Securities held by the Trustee in the Trust, whether or not
allocated to the Account of any Participant (hereinafter referred to as an
"Offer"), the Trustee shall have no discretion or authority to sell,
exchange or transfer any of such shares pursuant to such Offer except to
the extent, and only to the extent, that the Trustee is timely directed to
do so in writing (1) with respect to any Employer Securities held by the
Trustee subject to such Offer and allocated to the Account of any
Participant, by each Participant to whose Account any of such shares are
allocated, as a named fiduciary, within the meaning of Section 403(a)(1) of
the Act (referred to in this Section 11.16 as "named fiduciary") and (2)
with respect to any Employer Securities held by the Trustee subject to such
Offer and not allocated to the Account of any Participant, by each
Participant who has Employer Securities allocated to his or her Account, as
named fiduciary, with respect to an amount of such unallocated Employer
Securities equal to the total amount of unallocated Employer Securities,
multiplied by a fraction the numerator of which is the amount of Employer
Securities allocated to the Participant's Account under the Plan and the
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denominator of which is the total amount of Employers Securities allocated
to the Accounts of all Participants under the Plan.
Upon timely receipt of such instructions, the Trustee shall, subject
to the provisions of subparagraphs (c), (d) and (f) of this paragraph [A],
sell, exchange or transfer pursuant to such Offer, only such shares as to
which such instructions were given. The Trustee shall use its best efforts
to communicate or cause to be communicated to each Participant the
consequences of any failure to provide timely instructions to the Trustee.
In the event, under the terms of an Offer or otherwise, any shares of
Employer Securities tendered for sale, exchange or transfer pursuant to
such Offer may be withdrawn from such Offer, the Trustee shall follow such
instructions respecting the withdrawal of such securities from such Offer
in the same manner and the same proportion as shall be timely received by
the Trustee from the Participants as named fiduciaries entitled under this
paragraph to give instructions as to the sale, exchange or transfer of
securities pursuant to such Offer.
(b) In the event that an Offer for fewer than all of the shares of
Employer Securities held by the Trustee in the Trust shall be received by
the Trustee, each Participant who has been allocated any of such Employer
Securities subject to such Offer shall be entitled to direct the Trustee as
to the acceptance or rejection of such Offer (as provided by subparagraph
(a) of this paragraph [A]) with respect to the largest portion of such
Employer Securities as may be possible given the total number or amount of
shares of Employer Securities the Plan may sell, exchange or transfer
pursuant to the Offer based upon the instructions received by the Trustee
from all other Participants who shall timely instruct the Trustee pursuant
to this paragraph to sell, exchange or transfer such shares pursuant to
such Offer, each on a pro rata basis in accordance with the number or
amount of such shares allocated to their respective Employer Securities
Accounts.
(c) Notwithstanding the provisions of subparagraphs (a) and (b) of
this paragraph to the contrary, in the event that an Offer for fewer than
10 percent of all Employer Securities held by the Trustee subject to such
Offer held by the Trustee in the Trust shall be received by the Trustee,
the Trustee shall determine, in its sole discretion, whether to sell,
exchange or transfer any Employer Securities pursuant to such Offer, taking
into consideration items set forth in subparagraph (f) of this paragraph
[A]; provided, however, if there are multiple Offers within any twelve
month period (each Offer being for fewer than 10 percent of the Employer
Securities
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held by the Trustee), the Trustee shall be required to solicit directions
from Participants, as named fiduciaries, pursuant to the provisions of this
Section 11.16 with respect to each outstanding Offer that, after taking
into account all Employer Securities sold, exchanged or transferred in
accordance with any other Offer within the preceding 12 months and all
outstanding Offers for Employer Securities, would result in the sale,
exchange or transfer within such 12-month period, in the aggregate with all
other outstanding Offers, of more than 10 percent of the Employer
Securities held by the Trustee if all outstanding Offers were accepted by
the Trustee.
(d) In the event an Offer shall be received by the Trustee and
instructions shall be solicited from Participants in the Plan pursuant to
subparagraph (a) of this paragraph [A] regarding such Offer, and prior to
termination of such Offer, another Offer is received by the Trustee for the
Employer Securities subject to the first Offer, the Trustee shall use its
best efforts under the circumstances to solicit instructions from the
Participants to the Trustee (i) with respect to Employer Securities
tendered for sale, exchange or transfer pursuant to the first Offer,
whether to withdraw such tender, if possible, and, if withdrawn, whether to
tender any Employer Securities so withdrawn for sale, exchange or transfer
pursuant to the second Offer and (ii) with respect to Employer Securities
not tendered for sale, exchange or transfer pursuant to the first Offer,
whether to tender or not to tender such Employer Securities for sale,
exchange or transfer pursuant to the second Offer. The Trustee shall follow
all such instructions received in a timely manner from Participants in the
same manner and in the same proportion as provided in subparagraph (a) of
this paragraph [A]. With respect to any further Offer for any Employer
Securities received by the Trustee and subject to any earlier Offer
(including successive Offers from one or more existing offerors), the
Trustee shall act in the same manner as described above.
(e) In the event an Offer for any Employer Securities held by the
Trustee in the Trust shall be received by the Trustee and the Participants
shall be entitled to determine to accept, reject or withdraw an acceptance
of such Offer pursuant to subparagraphs (a) through (d) of this paragraph
[A], (i) the Company and the Trustee shall not interfere in any manner with
the decision of any Participant regarding the action of the Participant
with respect to such Offer (hereinafter referred to as an "Investment
Decision"), and the Trustee shall arrange for such Investment Decision to
be made on a confidential basis; (ii) the Trustee shall use its best
efforts to communicate or cause to be communicated to all Participants the
provisions of the Plan and Trust Agreement relating to the right of
Participants to direct the Trustee with respect to Employer Securities
subject to such Offer, including unallocated Employer Securities, and of
the obligation of the Trustee to follow such directions;
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(iii) the Trustee shall use its best efforts to distribute or cause to be
distributed to Participants all communications directed generally to the
owners of the Employer Securities to whom such Offer is made or is
available; and (iv) the Trustee shall use its best efforts to distribute or
cause to be distributed to Participants all communications that the Trustee
may receive, if any, from the persons making the Offer or any other
interested party (including the Company) relating to the Offer. The Company
and the Plan Administrator shall provide the Trustee with such information
and assistance as the Trustee may reasonably request in connection with any
communications or distributions to Participants. In no event shall the
communications to Participants by the offeror, the Company or other
interested parties or public communications directed generally to the
owners of the Employer Securities which are the subject of an Offer be
deemed to be interference in the making of an Investment Decision by any
Participant; provided, however, that Actss.510 shall apply to any
communication which threatens or intimates that actions which would violate
Actss.510 will or might be taken with respect to any Participant who does
not make an Investment Decision in accord with the wishes of the Company.
(f) In the event a court of competent jurisdiction shall issue to the
Plan, the Company or the Trustee an opinion or order, which shall, in the
opinion of counsel to the Company or the Trustee, invalidate under the Act,
in all circumstances or in any particular circumstances, any provision or
provisions of this paragraph [A] regarding the determination to be made as
to whether or not Employer Securities held by the Trustee shall be tendered
pursuant to an Offer or cause any such provision or provisions to conflict
with the Act, then, upon notice thereof to the Company or the Trustee, as
the case may be, such invalid or conflicting provisions of this paragraph
[A] shall be given no further force or effect. In such circumstances the
Trustee shall have no discretion to tender or not to tender Employer
Securities held in the Trust unless required under such order or opinion,
but shall follow instructions received from Participants, to the extent
such instructions have not been invalidated by such order or opinion. To
the extent required to exercise any residual fiduciary responsibility with
respect to such sale, exchange or transfer, the Trustee shall take into
account in exercising its fiduciary judgment, unless it is clearly
imprudent to do so, directions timely received from Participants, as such
directions are most indicative of what action is in the best interests of
Participants. Further, the Trustee, in addition to taking into
consideration any relevant financial factors bearing on any such decision,
shall take into consideration any relevant non-financial factors,
including, but not limited to, the continuing job security of Participants
as Employees of the Company or of any of its subsidiaries, conditions of
employment, employment
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opportunities and other similar matters, and the prospect of the
Participants and prospective Participants for future benefits under the
Plan (including any subsequent release and allocation of Employer
Securities held in the Exempt Loan Suspense Account required under Section
11.03[B](6).
(g) Notwithstanding anything elsewhere in this Plan or Trust Agreement
to the contrary, any proceeds received by the Trustee as a result of the
sale, exchange or transfer of Employer Securities pursuant to an Offer
shall be reinvested in Employer Securities by the Trustee, if such
securities are available for purchase and if not, to the extent
attributable to unallocated stock in the Exempt Loan Suspense Account,
shall be used to pay down the Exempt Loan. The balance of the proceeds, if
any, and the proceeds attributable to allocated Employer Securities shall
be invested in short-term, fixed income investments selected by the Trustee
and having a maturity of not more than two years from the time such
investment is made until the Trustee is otherwise directed by the Plan
Administrator or until the Participants to whose accounts such investments
are allocated shall be entitled to make investment elections with respect
to such accounts in accordance with the Plan.
[B] Voting Employer Securities; Options and Other Rights.
(a) Notwithstanding any other provision of this Plan to the contrary,
if any, the Trustee shall have no discretion or authority to vote Employer
Securities held in the Trust by the Trustee on any matter presented for a
vote by the stockholders of the Company except in accordance with timely
directions received by the Trustee from Participants who have Employer
Securities allocated to their Accounts under the Plan. Such directions
shall be given by Participants acting in their capacity as named
fiduciaries with respect to both allocated and unallocated Employer
Securities and, upon timely receipt of such instructions, the Trustee shall
vote the Employer Securities held in the Trust pursuant to the directions
of Participants giving instructions to the Trustee as set forth below.
(1) Employer Securities in Accounts. Each Participant who has
Employer Securities allocated to his or her Employer Securities
Account shall provide directions to the Trustee on any matter to be
presented for a vote by the stockholders of the Company with respect
to Employer Securities allocated to the Account of the Participant
under the Plan and the Trustee shall follow such directions.
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With respect to Employer Securities in any Account for which no
instructions were timely received by the Trustee, the Trustee shall vote
such Employer Securities in accordance with the directions of the
Participants who gave timely instructions to the Trustee, in the same
manner and in the same proportion to the voting of Participants on such
Employer Securities with respect to which timely instructions were given.
(2) Employer Securities in the Exempt Loan Suspense Account and other
Unallocated Employer Securities. Each Participant who has been allocated
Employer Securities to his or her Account shall, as named fiduciary, direct
the Trustee with respect to the vote of Employer Securities held by the
Trustee in the Exempt Loan Suspense Account and all other unallocated
Employer Securities, and the Trustee shall follow the directions of those
Participants who provide timely instructions to the Trustee. Each
Participant who has been allocated Employer Securities to his or her
Account entitled to vote on any matter presented for a vote by the
stockholders shall separately direct the Trustee with respect to the vote
of a portion of the shares of Employer Securities that are not allocated to
the Account of any Participant or for which no instructions were timely
received by the Trustee, whether or not allocated to the Account of any
Participant. Such direction shall be with respect to such number of votes
equal to the total number of votes attributable to Employer Securities not
allocated or with respect to which no responses were received multiplied by
a fraction the numerator of which is the number of votes attributable to
such Employer Securities allocated to the Participant's Employer Securities
Account and the denominator of which is the total number of votes
attributable to such Employer Securities allocated to the Account of all
such Participants who have provided directions to the Trustee under this
subparagraph.
(3) The Trustee shall use its best efforts to communicate or cause to
be communicated to all Participants the provisions of this Plan and the
Trust Agreement relating to the right of Participants to direct the Trustee
with respect to the voting of Employer Securities allocated to their
Accounts under the Plan and of Employer Securities not allocated to the
Account of any Participant. The Trustee shall use its best efforts to
distribute or cause to be distributed to Participants all communications
directed generally to the owners of Employer Securities entitled to vote,
and the Trustee shall use its best efforts to distribute or cause to be
distributed to Participants all communications that the Trustee may
receive, if any, from any person soliciting proxies or any other interested
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party (including the Company) relating to the matters being presented for a
vote by the stockholders of the Company. The Company and the Plan
Administrator shall provide the Trustee with such information and
assistance as the Trustee may reasonably request in connection with any
communications or distributions to Participants. In no event shall the
communications to Participants with respect to matters being presented for
a vote at a meeting of the stockholders of the Company by the Company or
other interested parties or public communications directed generally to the
stockholders of the Company be deemed to be interference in the making of a
decision by any Participant as to the voting of Employer Securities;
provided, however, that Act ss. 510 shall apply to any communication which
threatens or intimates that actions which would violate Act ss. 510 will or
might be taken with respect to any Participant who does not issue
directions to the Trustee in accord with the wishes of the Company.
(4) In the event a court of competent jurisdiction shall issue an
opinion or order to the Plan, the Company or the Trustee which shall, in
the opinion of counsel to the Company or the Trustee, invalidate under the
Act, in all circumstances or in any particular circumstances, any provision
or provisions of this paragraph [B] regarding the manner in which Employer
Securities held in the Trust shall be voted or cause any such provision or
provisions to conflict with the Act, then, upon notice thereof to the
Company or the Trustee, as the case may be, such invalid or conflicting
provision of this paragraph [B] shall be given no further force or effect.
In such circumstances the Trustee shall nevertheless have no discretion to
vote Employer Securities held in the Trust unless required under such order
or opinion but shall follow instructions received from Participants, to the
extent such instructions have not been invalidated. To the extent required
to exercise any residual fiduciary responsibility with respect to voting,
the Trustee shall take into account in exercising its fiduciary judgment,
unless it is clearly imprudent to do so, directions timely received from
Participants, as such directions are most indicative of what is in the best
interests of Participants. Further, the Trustee, in addition to taking into
consideration any relevant financial factors bearing on any such decision,
shall take into consideration any relevant non-financial factors,
including, but not limited to, the continuing job security of Participants
as Employees of the Company or any of its subsidiaries, conditions of
employment, employment opportunities and other similar matters, and the
prospect of the Participants and prospective Participants for future
benefits
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under the Plan (including any subsequent release and allocation of
Employer Securities held in the Exempt Loan Suspense Account).
(b) In the event that any option, right, warrant or similar property
derived from or attributable to the ownership of Employer Securities shall
be granted, distributed or otherwise issued which is and shall become
exercisable, each Participant shall be entitled, subject to the provisions
set forth below, to direct the Trustee to sell, exercise, distribute (with
the consent of the Plan Administrator) or retain any such option, right,
warrant or similar property. For such purpose there shall be furnished to
each Participant, on a timely and confidential basis, a form to be returned
to the Trustee on which he or she may set forth his or her direction
whether to sell, exercise, distribute or retain part or all of such option,
right, warrant or similar property. Upon timely receipt of such form or
other appropriate written direction, the Trustee shall follow such
direction to sell, exercise, distribute or retain part or all of any such
options, rights, warrants or similar property and, if such direction is to
retain the same, the Trustee shall follow any later appropriate written
directions to sell, exercise or distribute such options, rights, warrants
or similar property upon receipt thereof. If a Participant shall direct the
Trustee to exercise part or all of such options, rights, warrants or
similar property, the Trustee shall accumulate the amount equal to the
consideration necessary to exercise, from among the following sources: (a)
by obtaining appropriate written direction and authorization from the
Participant respecting one or more of (i) if and to the extent necessary,
the transfer and use, as he or she may designate, of the uninvested cash,
if any, allocated to him or her in his or her General Investments Account;
and (ii) if and to the extent necessary, the sale of part of his or her
options, rights, warrants or similar property, and use of the proceeds
thereof to exercise the remaining options, rights, warrants or similar
property which he or she has directed to be exercised or (b) if and to the
extent necessary, and to the extent the Trustee is willing and able, by
borrowing an amount equal to the consideration necessary to exercise,
provided that any such contribution or borrowing is permitted by applicable
law and further provided that such contribution or borrowing will not
adversely affect the continued qualified status of the Plan or continued
exempt status of the Trust under the Code. In the event of any such
borrowing, the Trustee shall make provisions for repayment thereof. The
securities acquired by the Trustee upon such exercise shall be held in a
special account or accounts established in the Trust at that time. If a
Participant shall direct the Trustee to distribute to him or her any such
options, rights, warrants or similar property, the Trustee, with the
consent of the Plan Administrator, shall distribute such options, rights,
warrants or similar property provided, as certified by the Plan
Administrator, (a) the Participant is age 65 or more or has five or more
years of Service and (b) such
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distribution will not adversely affect the continued qualified status of
the Plan or continued exempt status of the Trust under the Code. If a
Participant fails or refuses to file, with the Plan Administrator, an
election not to withhold any Federal taxes upon such distribution, the
Trustee shall be deemed to be authorized, to the extent necessary, as
instructed by the Plan Administrator, to sell part of such options, rights,
warrants, or similar property and use the proceeds therefrom to pay all
applicable Federal withholding taxes due in connection with such
distribution. Upon any such distribution, the Trustee shall report the same
to the Plan Administrator to permit compliance with the applicable
reporting provisions of the Code. For all Plan purposes, all options,
rights, warrants or similar property described in this subparagraph (b) of
paragraph [B] hereof, shall be treated as income added to the appropriate
Accounts of Participants. If, within a reasonable period of time after the
form soliciting direction from a Participant has been sent, no written
direction shall have been received by the Trustee from him or her, the
Trustee shall, in its sole discretion, sell, exercise or retain and keep
unproductive of income such option, right, warrant or similar property for
which no response has been received from such Participant and also for
options, rights, warrants or similar property derived from, or attributable
to, the ownership of Employer Securities not yet allocated to any
Participant's Employer Securities Account.
In addition the Trustee shall, in its sole discretion, sell, exercise
or retain and keep unproductive of income such option, right, warrant or
similar property attributable to unallocated Employer Securities held in
the Exempt Loan Suspense Account or other Account. In the event of a
discretionary decision by the Trustee to exercise, the Trustee shall be
deemed to be authorized to accumulate the amount equal to the consideration
necessary to exercise from any of the sources specified herein and to hold
such acquired securities in the Trust as specified herein. In connection
with any discretionary decisions by the Trustee to sell, exercise or retain
and keep unproductive of income any such option, right, warrant or similar
property, the Trustee shall consider, in addition to any relevant financial
factors, such as those set forth in paragraph [B](a)(4) hereof, all as
evidenced by the proportion of the directions received from Participants to
either sell, exercise or retain such options, rights, warrants or similar
property, and shall also consider such other factors as the Trustee may
deem relevant.
* * *
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ARTICLE XII
PROVISIONS RELATING TO INSURANCE AND INSURANCE COMPANY
12.01 INSURANCE BENEFIT. The Company may elect to provide incidental life
insurance benefits for insurable Participants who consent to life insurance
benefits by signing the appropriate insurance company application form. The
Trustee will not purchase any incidental life insurance benefit for any
Participant prior to the Accounting Date as of which the Plan Administrator
first makes an Company contribution allocation to the Participant's Account.
The Company shall direct the Trustee as to the insurance company and
insurance agent through which the Trustee is to purchase the insurance
contracts, the amount of the coverage and the applicable dividend plan. Each
application for a policy, and the policies themselves, must designate the
Trustee as sole owner, with the right reserved to the Trustee to exercise any
right or option contained in the policies, subject to the terms and provisions
of this Agreement. The Trustee must be the named beneficiary for the Account of
the insured Participant. Proceeds of insurance contracts paid to the
Participant's Account under this Article XII shall be subject to the
distribution requirements of Article VI and of Article VII. The Trustee will not
retain any such proceeds for the benefit of the Trust.
The Trustee will charge the premiums on any incidental benefit insurance
contracts covering the life of a Participant against the Account of that
Participant. The Trustee will hold all incidental benefit insurance contracts
issued under the Plan as assets of the Trust created under the Plan.
Incidental Insurance Benefits. The aggregate of life insurance premiums
paid for the benefit of a Participant, at all times, may not exceed the value of
the Participant's Nonforfeitable Accrued Benefit nor the following percentages
of the aggregate of the Company's contributions allocated to any Participant's
Account: (i) 49 percent in the case of the purchase of ordinary life insurance
contracts; or (ii) 25 percent in the case of the purchase of term life insurance
contracts. If the Trustee purchases a combination of ordinary life insurance
contract(s) and term life insurance contract(s), then the sum of one-half of the
premiums paid for the ordinary life insurance contract(s) and the premiums paid
for the term life insurance contract(s) may not exceed 25 percent of the Company
contributions allocated to any Participant's Account.
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12.02 LIMITATION ON LIFE INSURANCE PROTECTION. The Trustee will not
continue any life insurance protection for any Participant beyond the later of
his or her termination of employment or his or her attaining Normal Retirement
Age, or notification from the Plan Administrator of his or her termination of
employment. If the Trustee holds any incidental benefit insurance contracts on
the life of a Participant when he or she terminates employment (other than by
reason of death), the Trustee must proceed as follows:
(a) If the entire cash value of the contracts is Vested in the
terminating Participant, or if the contracts will have no cash value at the
end of the policy year in which termination of employment occurs, the
Trustee will transfer the contracts to the Participant endorsed so as to
vest in the transferee all right, title and interest to the contracts, free
and clear of the Trust; subject, however, to restrictions as to surrender
or payment of benefits as the issuing insurance company may permit and as
the Plan Administrator directs;
(b) If only part of the cash value of the contracts is Vested in the
terminating Participant, the Trustee, to the extent the Participant's
interest in the cash value of the contracts is not Vested, may adjust the
Participant's interest in the value of his or her Account attributable to
Trust assets other than incidental benefit insurance contracts and proceed
as in (a), or the Trustee must effect a loan from the issuing insurance
company on the sole security of the contracts for an amount equal to the
difference between the cash value of the contracts at the end of the policy
year in which termination of employment occurs and the amount of the cash
value that is Vested in the terminating Participant, and the Trustee must
transfer the contracts endorsed so as to vest in the transferee all right,
title and interest to the contracts, free and clear of the Trust; subject,
however, to the restrictions as to surrender or payment of benefits as the
issuing insurance company may permit and as the Plan Administrator directs;
(c) If no part of the cash value of the contracts is Vested in the
terminating Participant, the Trustee must surrender the contracts for cash
proceeds as may be available.
In accordance with the written direction of the Plan Administrator, the
Trustee will make any transfer of contracts under this Section 12.02 on the
Participant's distribution date (or as soon as administratively practicable
after that date).
The Trustee may not transfer any contract under this Section 12.02 which
contains a method of payment not specifically authorized by Article VII or which
fails to comply
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with the joint and survivor annuity requirements, if applicable, of Article VII.
In this regard, the Trustee either must convert such a contract to cash and
distribute the cash instead of the contract, or before making the transfer,
require the issuing company to delete the unauthorized method of payment option
from the contract.
12.03 DEFINITIONS. For purposes of this Article XII:
(a) "Policy" means an ordinary life insurance contract or a term life
insurance contract issued by an insurer on the life of a Participant.
(b) "Issuing insurance company" is any life insurance company which
has issued a policy upon application by the Trustee under the terms of this
Agreement.
(c) "Insurance Age" is the age of a person as determined by the
issuing company to accomplish the purposes of the Plan.
(d) "Contract" or "Contracts" means a policy of insurance. In the
event of any conflict between the provisions of this Plan and the terms of
any contract or policy of insurance issued in accordance with this Article
XII, the provisions of the Plan shall control.
(e) "Insurable Participant" means a Participant to whom an insurance
company, upon an application being submitted in accordance with the Plan,
will issue insurance coverage, either as a standard risk or as a risk in an
extra mortality classification.
(f) "Term life insurance contract" includes in addition to a
traditional term life insurance contract, a universal life insurance
contract and any other life insurance contract which is not an ordinary
life insurance contract.
12.04 DIVIDEND PLAN. The dividend plan is premium reduction unless the
Plan Administrator directs the Trustee to the contrary. The Trustee must use all
premiums for a contract to purchase insurance benefits or additional insurance
benefits for the Participant on whose life the insurance company has issued the
contract. Furthermore, the Plan Administrator must arrange, where possible, that
all insurance policies issued on the lives of Participants under the Plan to
have the same premium due date and all ordinary life insurance contracts to
contain guaranteed cash values with as uniform basic options as are possible to
obtain. The term "dividends" includes policy dividends, refunds of premiums and
other credits.
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12.05 INSURANCE COMPANY NOT A PARTY TO AGREEMENT. No insurance company,
solely in its capacity as an issuing insurance company, is a party to this
Agreement nor is the company responsible for its validity.
12.06 INSURANCE COMPANY NOT RESPONSIBLE FOR TRUSTEE'S ACTIONS. No
insurance company, solely in its capacity as an issuing insurance company, need
examine the terms of this Agreement nor is responsible for any action taken by
the Trustee.
12.07 INSURANCE COMPANY RELIANCE ON TRUSTEE'S SIGNATURE. For the purpose
of making application to an insurance company and in the exercise of any right
or option contained in any policy, the insurance company may rely upon the
signature of the Trustee and is saved harmless and completely discharged in
acting at the direction and authorization of the Trustee.
12.08 ACQUITTANCE. An insurance company is discharged from all liability
for any amount paid to the Trustee or paid in accordance with the direction of
the Trustee, and is not obliged to see to the distribution or further
application of any monies it so pays.
12.09 DUTIES OF INSURANCE COMPANY. Each insurance company must keep such
records; make such identification of contracts, funds and accounts within funds;
and supply such information as may be necessary for the proper administration of
the Plan under which is it carrying insurance benefits.
* * *
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ARTICLE XIII
MISCELLANEOUS
13.01 EVIDENCE. Anyone required to give evidence under the terms of the
Plan may do so by certificate, affidavit, document or other information which
the person to act in reliance may consider pertinent, reliable and genuine, and
to have been signed, made or presented by the proper party or parties. Both the
Plan Administrator and the Trustee are fully protected in acting and relying
upon any evidence described under the immediately preceding sentence.
13.02 NO RESPONSIBILITY FOR COMPANY ACTION. Neither the Trustee nor the
Plan Administrator has any obligation nor responsibility with respect to any
action required by the Plan to be taken by the Company, any Participant or
eligible Employee, nor for the failure of any of the above persons to act or
make any payment or contribution, or to otherwise provide any benefit
contemplated under this Plan. Furthermore, the Plan does not require the Trustee
or the Plan Administrator to collect any contribution required under the Plan,
or determine the correctness of the amount of any Company contribution. Neither
the Trustee nor the Plan Administrator need inquire into or be responsible for
any action or failure to act on the part of the others. Any action required of
the Company must be by its Board of Directors or its designate.
13.03 FIDUCIARIES NOT INSURERS. The Trustee, the Plan Administrator and
the Company in no way guarantee the Trust Fund from loss or depreciation. The
Company does not guarantee the payment of any money which may be or becomes due
to any person from the Trust Fund. The liability of the Plan Administrator and
the Trustee to make any payment from the Trust Fund at any time and all times is
limited to the then available assets of the Trust.
13.04 WAIVER OF NOTICE. Any person entitled to notice under the Plan may
waive the notice.
13.05 SUCCESSORS. The Plan is binding upon all persons entitled to
benefits under the Plan, their respective heirs and legal representatives, upon
the Company, its successors and assigns, and upon the Trustee, the Plan
Administrator, the Plan Administrator and their successors.
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13.06 WORD USAGE. Words used in the masculine also apply to the feminine
where applicable, and wherever the context of the Plan dictates, the plural
includes the singular and the singular includes the plural.
13.07 STATE LAW. The Plan shall be deemed to have been made in Missouri,
and all questions arising with respect to the provisions of this Plan and any
and all performance thereunder, or breach thereof, shall be interpreted,
governed and construed pursuant to the laws of Missouri, except to the extent
Federal statute supersedes Missouri law; and the Trustee and Participants under
the Plan consent that Iowa shall be the forum where any cause of action arising
under the Plan shall be instituted.
13.08 EMPLOYMENT NOT GUARANTEED. Nothing contained in this Plan, or with
respect to the establishment of the Trust, or any modification or amendment to
the Plan or Trust, or in the creation of any Account, or the payment of any
benefit, gives any Employee, Employee-Participant or any Beneficiary any right
to continue employment, any legal or equitable right against the Company, or
Employee of the Company, or against the Trustee, or its agents or employees, or
against the Plan Administrator, except as expressly provided by the Plan, the
Trust, the Act or by a separate agreement.
* * *
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ARTICLE XIV
EXCLUSIVE BENEFIT, AMENDMENT, TERMINATION
14.01 EXCLUSIVE BENEFIT. Except as provided under Article XIV, the
Company has no beneficial interest in any asset of the Trust, and no part of any
asset in the Trust may ever revert to or be repaid to a Company, either directly
or indirectly; nor prior to the satisfaction of all liabilities with respect to
the Participants and their Beneficiaries under the Plan, may any part of the
corpus or income of the Trust Fund, or any asset of the Trust, be (at any time)
used for, or diverted to, purposes other than the exclusive benefit of the
Participants or their Beneficiaries. However, if the Commissioner of Internal
Revenue, upon the Company's request for initial approval of this Plan,
determines that the Trust created under the Plan is not a qualified trust exempt
from Federal income tax, then (and only then) the Trustee, upon written notice
from the Company, will return the Company's contributions (and increment
attributable to the contributions) to the Company. The Trustee must make the
return of the Company contribution under this Section 15.01 within one (1) year
of a final disposition of the Company's request for initial approval of the
Plan. The Plan and Trust shall terminate upon the Trustee's return of the
Company's contributions.
14.02 AMENDMENT BY COMPANY. The Company has the right at any time and
from time to time:
(a) to amend this Agreement in any manner it deems necessary or
advisable in order to qualify (or maintain qualification of) this Plan and
the Trust created under it under the appropriate provisions of the Code (S)
401(a); and
(b) to amend this Agreement in any other manner.
No amendment may authorize or permit any of the Trust Fund (other than the
part which is required to pay taxes and administrative expenses) to be used or
diverted to purposes other than for the exclusive benefit of the Participants or
their Beneficiaries or estates. No amendment may cause or permit any portion of
the Trust Fund to revert to or become a property of the Company. The Company
also may not make any amendment which affects the rights, duties or
responsibilities of the Trustee or the Plan Administrator without the written
consent of the affected Trustee, the Plan Administrator or the affected member
of the Advisory Committee.
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Code (S) 411(d)(6) protected benefits. An amendment (including the adoption
of this Plan as a restatement of an existing plan) may not decrease a
Participant's Accrued Benefit, except to the extent permitted under Code (S)
412(c)(8), and may not reduce or eliminate Code (S) 411(d)(6) protected benefits
determined immediately prior to the adoption date (or, if later, the effective
date) of the amendment. An amendment reduces or eliminates Code (S) 411(d)(6)
protected benefits if the amendment has the effect of either (1) eliminating or
reducing an early retirement benefit or a retirement-type subsidy (as defined in
Treasury regulations), or (2) except as provided by Treasury regulations,
eliminating an optional form of benefit. The Plan Administrator must disregard
an amendment to the extent application of the amendment would fail to satisfy
this paragraph. If the Plan Administrator must disregard an amendment because
the amendment would violate clause (1) or clause (2), the Plan Administrator
must maintain a schedule of the early retirement option or other optional forms
of benefit the Plan must continue for the affected Participants.
The Company shall make all amendments in writing. Each amendment shall
state the date to which it is either retroactively or prospectively effective.
14.03 DISCONTINUANCE. The Company has the right, at any time, to suspend
or discontinue its contributions under the Plan, and to terminate, at any time,
this Plan and the Trust created under this Agreement. The Plan will terminate
upon the first to occur of the following:
(a) the date terminated by action of the Company;
(b) the date the Company shall be judicially declared bankrupt or
insolvent, unless the proceeding authorized continued maintenance of the
Plan; or
(c) the dissolution, merger, consolidation or reorganization of the
Company or the sale by the Company of all or substantially all of its
assets, unless the successor or purchaser makes provision to continue the
Plan, in which event the successor or purchaser shall substitute itself as
the Company under this Plan. Any termination of the Plan resulting from
this paragraph (c) is not effective until compliance with any applicable
notice requirements under ERISA.
14.04 FULL VESTING ON TERMINATION. Upon either full or partial
termination of the Plan, or, if applicable, upon the date of complete
discontinuance of Company contributions to the Plan, an affected Participant's
right to his or her Accrued
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Benefit is One Hundred Percent (100 percent) Nonforfeitable, irrespective of the
Nonforfeitable percentage which otherwise would apply under Article VI.
14.05 MERGER/DIRECT TRANSFER. The Trustee may not consent to, or be a
party to, any merger or consolidation with another plan, or to a transfer of
assets or liabilities to another plan, unless immediately after the merger,
consolidation or transfer, the surviving Plan provides each Participant a
benefit equal to or greater than the benefit each Participant would have
received had the Plan terminated immediately before the merger or consolidation
or transfer. The Trustee possesses the specific authority to enter into merger
agreements or direct transfer of assets agreements with the trustees of other
retirement plans described in Code (S) 401(a), including an elective transfer,
and to accept the direct transfer of plan assets, or to transfer plan assets, as
a party to any such agreement.
The Trustee may accept a direct transfer of plan assets on behalf of an
Employee prior to the date the Employee satisfies the Plan's eligibility
conditions. If the Trustee accepts such a direct transfer of plan assets, the
Plan Administrator and Trustee must treat the Employee as a Participant for all
purposes of the Plan except the Employee is not a Participant for purposes of
sharing in Company contributions or Participant forfeitures under Article VI
until he or she actually becomes a Participant in the Plan.
The Trustee may not consent to, or be a party to a merger, consolidation or
transfer of assets with a defined benefit plan, except with respect to an
elective transfer. The Trustee will hold, administer and distribute the
transferred assets as a part of the Trust Fund and the Trustee must maintain a
separate Company contribution Account for the benefit of the Employee on whose
behalf the Trustee accepted the transfer in order to reflect the value of the
transferred assets. Unless a transfer of assets to this Plan is an elective
transfer, the Plan will preserve all Code (S) 411(d)(6) protected benefits with
respect to those transferred assets, in the manner described in Section 14.02. A
transfer is an elective transfer if: (1) the transfer satisfies the first
paragraph of this Section 14.05; (2) the transfer is voluntary, under a fully
informed election by the Participant; (3) the Participant has an alternative
that retains his or her Code (S) 411(d)(6) protected benefits (including an
option to leave his or her benefit in the transferor plan, if that plan is not
terminating); (4) the transfer satisfies the applicable spousal consent
requirements of the Code; (5) the transferor plan satisfies the joint and
survivor notice requirements of the Code, if the Participant's transferred
benefit is subject to those requirements; (6) the Participant has a right to
immediate distribution from the transferor plan, in lieu of the elective
transfer; (7) the transferred benefit is at least the greater of the single sum
distribution provided by the transferor plan for which the Participant is
eligible or the
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present value of the Participant's accrued benefit under the transferor plan
payable at that plan's normal retirement age; (8) the Participant has a 100
percent Nonforfeitable interest in the transferred benefit; and (9) the transfer
otherwise satisfies applicable Treasury regulations. An elective transfer may
occur between qualified plans of any type.
Distribution restrictions under Code (S) 401(k). If the Plan receives a
direct transfer (by merger or otherwise) of elective contributions (or amounts
treated as elective contributions) under a Plan with a Code (S) 401(k)
arrangement, the distribution restrictions of Code (S)(S) 401(k)(2) and (10)
continue to apply to those transferred elective contributions.
14.06 TERMINATION. Upon termination of the Plan, the distribution
provisions of Article VII remain operative, with the following exceptions:
(a) if the present value of the Participant's Nonforfeitable Accrued
Benefit does not exceed $5,000, the Plan Administrator will direct the
Trustee to distribute the Participant's Nonforfeitable Accrued Benefit to
him or her in lump sum as soon as administratively practicable after the
Plan terminates; and
(b) if the present value of the Participant's Nonforfeitable Accrued
Benefit exceeds $5,000, the Participant or the Beneficiary, in addition to
the distribution events permitted under Article VII, may elect to have the
Trustee commence distribution of his or her Nonforfeitable Accrued Benefit
as soon as administratively practicable after the Plan terminates.
To liquidate the Trust, the Plan Administrator may purchase a deferred
annuity contract for each Participant which protects the Participant's
distribution rights under the Plan, if the Participant's Nonforfeitable Accrued
Benefit exceeds $5,000 and the Participant does not elect an immediate
distribution pursuant to paragraph (b).
In Lieu of the preceding provisions of this Section 14.06 and the
distribution provisions of Article VII, the Plan Administrator will direct the
Trustee to distribute each Participant's Nonforfeitable Accrued Benefit, in lump
sum, as soon as administratively practicable after the termination of the Plan,
irrespective of the present value of the Participant's Nonforfeitable Accrued
Benefit and without requirement of the Participant's consent to that
distribution. This paragraph does not apply if: (a) the Plan provides an annuity
option; or (2) as of the period between the Plan termination date and the final
distribution of assets the Company maintains any other defined contribution plan
(other than an ESOP).
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If the Plan Administrator is unable to locate any Participant or
Beneficiary whose Account becomes distributable upon Plan termination, the Plan
Administrator will apply Section 10.14.
The Trust shall continue until the Trustee in accordance with the direction
of the Plan Administrator has distributed all of the benefits under the Plan.
On each Valuation Date, the Plan Administrator will credit any part of a
Participant's Accrued Benefit retained in the Trust with its proportionate share
of the Trust's income, expenses, gains and losses, both realized and unrealized.
Upon termination of the Plan, the amount, if any, in a suspense account under
Article IV will revert to the Company, subject to the conditions of the Treasury
regulations permitting such a reversion. A resolution or amendment to freeze all
future benefit accrual but otherwise to continue maintenance of this Plan is not
a termination for purposes of this Section 14.06.
* * *
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IN WITNESS WHEREOF, the Company and the Trustee have executed this Plan and
Trust this 29/th/ day of April, 2002.
XXXXX'X GENERAL STORES, INC.
By: /s/ Xxxxxx X. Xxxx
------------------------------
Xxxxxx X. Xxxx, President
Attest:
/s/ Xxxx X. Xxxxxx
-------------------------
Xxxx X. Xxxxxx, Secretary
UMB BANK, N.A.,
TRUSTEE
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Title: Vice President and Employee Benefit
Counsel
STATE OF IOWA )
)SS:
COUNTY OF POLK )
On this 30th day of April, 2002, before me, a Notary Public in and for the
State of Iowa, personally appeared Xxxxxx X. Xxxx and Xxxx X. Xxxxxx, to me
personally known, who, being by me duly sworn, did say that they are the
President and Secretary, respectively, of Xxxxx'x General Stores, Inc., an Iowa
corporation; that the corporation is without corporate seal; that said
instrument was signed on behalf of said corporation by authority of its Board of
Directors; and Xxxxxx X. Xxxx and Xxxx X. Xxxxxx, as such officers, acknowledged
the execution of said instrument to be the voluntary act and deed of said
corporation by it and by them voluntarily executed.
Given under my hand and seal of office, this 30th day of April, 2002.
/s/ Xxx X. Xxxxx
------------------------------------------
Notary Public in and for the Xxxxx xx Xxxx
-00-
XXXXX XX XXXXXXXX )
)SS:
COUNTY OF XXXXXXX )
On this 26th day of April, 2002, before me, a Notary Public in and for the
State of Missouri, personally appeared Xxxxx X. Xxxxxxxxx, to me personally
known, who, being by me duly sworn, did say that she is a Vice President and
Employee Benefit Counsel of UMB Bank, N.A. that said instrument was signed on
behalf of said Bank.
Given under my hand and seal of office, this 26th day of April, 2002.
/s/ Xxxxx X. Xxxxxx
----------------------------------------------
Notary Public in and for the State of Missouri
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