EXHIBIT 4.9
XANSER CORPORATION
401(k) SAVINGS INVESTMENT PLAN
AMENDMENT AND RESTATEMENT
EFFECTIVE JANUARY 1, 1998
XANSER CORPORATION 401(K) SAVINGS INVESTMENT PLAN
THIS AGREEMENT adopted by Xanser Corporation, a Delaware corporation (the
"Sponsor"),
W I T N E S S E T H:
WHEREAS, effective April 1, 1991, the Sponsor established the Kaneb
Services, Inc. 401(k) Savings Investment Plan (the "Plan");
WHEREAS, the Plan is intended to satisfy the requirements of sections
401(a) and 401(k) of the Internal Revenue Code of 1986, as amended;
WHEREAS, the Sponsor desires to change the name of the Plan and to amend
and restate the Plan;
NOW, THEREFORE, the name of the Plan is changed to "Xanser Corporation
401(k) Savings Investment Plan" effective January 1, 2001, and the Sponsor
hereby adopts the amendment and restatement of the Plan, the terms of which are
set forth below.
TABLE OF CONTENTS
SECTION
ARTICLE I - DEFINITIONS
Account .......................................................... 1.01
Affiliated Employer .............................................. 1.02
Annual Compensation .............................................. 1.03
Beneficiary or Beneficiaries ..................................... 1.04
Benefit Commencement Date ........................................ 1.05
Board ............................................................ 1.06
Catch-up Eligible Participant .................................... 1.07
Code ............................................................. 1.08
Committee ........................................................ 1.09
Company Stock .................................................... 1.10
Computation Period ............................................... 1.11
Considered Compensation .......................................... 1.12
Contribution ..................................................... 1.13
Direct Rollover .................................................. 1.14
Disability ....................................................... 1.15
Distributee ...................................................... 1.16
Eligible Retirement Plan ......................................... 1.17
Eligible Rollover Distribution ................................... 1.18
Eligibility Service .............................................. 1.19
Employee ......................................................... 1.20
Employer or Employers ............................................ 1.21
Entry Date ....................................................... 1.22
ERISA ............................................................ 1.23
Five Percent Owner ............................................... 1.24
Forfeitable Interest ............................................. 1.25
Highly Compensated Employee ...................................... 1.26
Hour of Employment ............................................... 1.27
Hour of Service .................................................. 1.28
Leased Employee .................................................. 1.29
Mandatory Cashout Amount ......................................... 1.30
Matched Salary Deferral Contribution ............................. 1.31
Maternity or Paternity Absence ................................... 1.32
Nonforfeitable Interest .......................................... 1.33
Non-Highly Compensated Employee .................................. 1.34
Normal Retirement Age ............................................ 1.35
Participant ...................................................... 1.36
Period of Service ................................................ 1.37
Period of Severance .............................................. 1.38
Plan ............................................................. 1.39
Plan Year ........................................................ 1.40
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Qualified Domestic Relations Order ............................... 1.41
Regulation ....................................................... 1.42
Required Beginning Date .......................................... 1.43
Rollover Contribution ............................................ 1.44
Separation From Service .......................................... 1.45
Severance From Service Date ...................................... 1.46
Xxxxxx Service ................................................... 1.47
Sponsor .......................................................... 1.48
Spouse ........................................................... 1.49
Top-Paid Group ................................................... 1.50
Top-Paid Group Determination Year ................................ 1.51
Trust ............................................................ 1.52
Trustee .......................................................... 1.53
Valuation Date ................................................... 1.54
Vesting Service .................................................. 1.55
ARTICLE II - ELIGIBILITY
Eligibility Requirements ......................................... 2.01
Early Participation for Salary Deferral Contribution and Rollover
Purposes ..................................................... 2.02
Eligibility Upon Reemployment .................................... 2.03
Cessation of Participation ....................................... 2.04
Recommencement of Participation .................................. 2.05
ARTICLE III - CONTRIBUTIONS
Salary Deferral Contributions .................................... 3.01
Catch-up Salary Deferral Contributions ........................... 3.02
Matching Contributions ........................................... 3.03
Supplemental Contributions ....................................... 3.04
Rollover Contributions and Plan-to-Plan Transfers ................ 3.05
QNECS - Extraordinary Employer Contributions ..................... 3.06
Restoration Contributions ........................................ 3.07
Restorative Payments ............................................. 3.08
Nondeductible Contributions Not Required ......................... 3.09
Deadline for Payment of Employer Contributions ................... 3.10
Return of Contributions for Mistake,
Disqualification or Disallowance of Deduction ................ 3.11
ARTICLE IV - ALLOCATION AND VALUATION OF ACCOUNTS
Information Statements from Employer ............................. 4.01
Allocation of Salary Deferral Contributions ...................... 4.02
Allocation of Catch-up Salary Deferral Contributions ............. 4.03
Allocation of Matching Contributions ............................. 4.04
Allocation of Supplemental Contributions ......................... 4.05
Allocation of QNECs .............................................. 4.06
Allocation of Forfeitures ........................................ 4.07
Valuation of Accounts ............................................ 4.08
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No Rights Unless Otherwise Prescribed ............................ 4.09
ARTICLE V - BENEFITS
Benefit Upon Separation From Service ............................. 5.01
Distribution Method Available .................................... 5.02
Direct Rollover Option ........................................... 5.03
Time of Distribution ............................................. 5.04
Consent to Distribution Upon Separation From Service ............. 5.05
Information Provided to Participants and Former Participants ..... 5.06
Immediate Payment of Small Benefit ............................... 5.07
Designation of Beneficiary ....................................... 5.08
Distribution for Incapacitated Person or a Minor ................. 5.09
Distribution Pursuant to Qualified Domestic Relations Order ...... 5.10
Claims Procedure ................................................. 5.11
ARTICLE VI - IN-SERVICE DISTRIBUTIONS AND LOANS
In-Service Financial Hardship Distributions ...................... 6.01
In-Service Age 59 1/2 Distributions .............................. 6.02
Loans ............................................................ 6.03
ARTICLE VII - VESTING
ARTICLE VIII - ELIGIBILITY SERVICE AND VESTING SERVICE
Eligibility Service .............................................. 8.01
Vesting Service .................................................. 8.02
Disregard of Certain Service ..................................... 8.03
Special Rules for Maternity or Paternity Absences ................ 8.04
Definition of Hour of Employment ................................. 8.05
Service Credit Required by Federal Law ........................... 8.06
Employment Records Conclusive .................................... 8.07
Credit for Service with Xxxxxxxxx Associates, Inc. ............... 8.08
ARTICLE IX - FORFEITURES AND RESTORATIONS
Forfeiture on Termination of Participation ....................... 9.01
Restoration of Forfeited Amounts ................................. 9.02
Forfeitures by Lost Participants or Beneficiaries ................ 9.03
ARTICLE X - INVESTMENT ELECTIONS
Investment Funds Established ..................................... 10.01
Election Procedures Established .................................. 10.02
ARTICLE XI - INVESTMENTS IN COMPANY STOCK
Voting of Company Stock .......................................... 11.01
Tender Offers .................................................... 11.02
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Shares Credited .................................................. 11.03
Conversion ....................................................... 11.04
Authority to Invest in Company Stock ............................. 11.05
ARTICLE XII - ADOPTION OF PLAN BY OTHER EMPLOYERS
Adoption Procedure ............................................... 12.01
No Joint Venture Implied ......................................... 12.02
All Trust Assets Available to Pay All Benefits ................... 12.03
Qualification a Condition Precedent to Adoption and Continued
Participation ................................................ 12.04
ARTICLE XIII - AMENDMENT AND TERMINATION
Right to Amend and Limitations Thereon ........................... 13.01
Mandatory Amendments ............................................. 13.02
Withdrawal of Employer Upon its Rejection of an Amendment ........ 13.03
Termination of Participation in the Plan ......................... 13.04
Termination of Plan .............................................. 13.05
Partial or Complete Termination or Complete Discontinuance of
Contributions ................................................ 13.06
ARTICLE XIV - MISCELLANEOUS
Plan Not an Employment Contract .................................. 14.01
Benefits Provided Solely from Trust .............................. 14.02
Assignments Prohibited ........................................... 14.03
Requirements Upon Merger or Consolidation of Plans ............... 14.04
Gender of Words Used ............................................. 14.05
Severability ..................................................... 14.06
Reemployed Veterans .............................................. 14.07
Limitations on Legal Actions ..................................... 14.08
Governing Law .................................................... 14.09
APPENDIX A - LIMITATIONS ON CONTRIBUTIONS AND ALLOCATIONS
APPENDIX B - TOP-HEAVY REQUIREMENTS
APPENDIX C - ADMINISTRATION OF THE PLAN
APPENDIX D - FUNDING
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ARTICLE I
DEFINITIONS
The words and phrases defined in this Article shall have the meaning set
out in the definition unless the context in which the word or phrase appears
reasonably requires a broader, narrower or different meaning.
1.01 "ACCOUNT" means all ledger accounts pertaining to a Participant or
former Participant which are maintained by the Committee to reflect the
Participant's of former Participant's interest in the Trust. The Committee shall
establish the following accounts and any additional accounts that the Committee
considers necessary to reflect the entire interest of the Participant in the
Trust. Each of the accounts listed below and any additional accounts established
by the Committee shall reflect the Contributions made to the Trust on behalf of
a Participant or former Participant and the appreciation or depreciation of the
assets in the Trust and the income earned or loss incurred on the assets in the
Trust attributable to the Contributions and/or other amounts transferred to the
account.
(a) Salary Deferral Contribution Account - the Participant's or
former Participant's before-tax contributions, if any, made pursuant to
Section 3.01.
(b) Catch-up Salary Deferral Contribution Account - the
Participant's or former Participant's before-tax contributions, if any,
made pursuant to Section 3.02.
(c) Matching Contribution Account - the Employer's matching
contributions, if any, made pursuant to Section 3.03.
(d) Supplemental Contribution Account - the Employer's
contributions, if any, made pursuant to Section 3.04.
(e) Rollover Account - funds rolled over or transferred from another
qualified plan or individual retirement account for the benefit of a
Participant or former Participant.
(f) QNEC Account - the Employer's contributions, known as "qualified
nonelective employer contributions," made as a means of passing the actual
deferral percentage test set forth in section 401(k) of the Code or the
actual contribution percentage test set forth in section 401(m) of the
Code.
1.02 "AFFILIATED EMPLOYER" means the Employer and any employer which is a
member of the same controlled group of corporations within the meaning of
section 414(b) of the Code or which is a trade or business (whether or not
incorporated) which is under common control (within the meaning of section
414(c) of the Code), which is a member of an affiliated service group (within
the meaning of section 414(m) of the Code) with the Employer, or which is
required to be aggregated with the Employer under section 414(o) of the Code.
For purposes of the limitation on allocations contained in Appendix A, the
definition of Affiliated Employer is modified by substituting the phrase "more
than 50 percent" in place of the phrase "at least 80 percent" each place the
latter phrase appears in section 1563(a)(1) of the Code.
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1.03 "ANNUAL COMPENSATION" means, effective January 1, 1997, the
Employee's wages from the Affiliated Employers as defined in section 3401(a) of
the Code for purposes of federal income tax withholding at the source (but
determined without regard to any rules that limit the remuneration included in
wages based on the nature or location of the employment or the services
performed) modified by including elective contributions under a cafeteria plan
maintained by an Affiliated Employer that are excludable from the Employee's
gross income pursuant to section 125 of the Code, elective contributions under a
qualified transportation fringe benefit plan maintained by an Affiliated
Employer that are excludable from the Employee's gross income pursuant to
section 132(f)(4) of the Code and elective contributions made on behalf of the
Employee to any plan maintained by an Affiliated Employer that is qualified
under or governed by section 401(k), 408(k), or 403(b) of the Code. Except for
purposes of Section A.4.1 of Appendix A of the Plan, effective for Plan Years
commencing on or after January 1, 1994, but prior to January 1, 2002, Annual
Compensation in excess of $150,000.00 (as adjusted by the Secretary of Treasury
for increases in the cost of living) shall be disregarded. Except for purposes
of Section A.4.1 of Appendix A of the Plan, effective for Plan Years commencing
on or after January 1, 2002, Annual Compensation in excess of $200,000.00 (as
adjusted by the Secretary of Treasury for increases in the cost of living) will
be disregarded. If the Plan Year is ever less than 12 months, the $150,000.00
limitation (as adjusted by the Secretary of Treasury for increases in the cost
of living) or, for Plan Years that commence on or after January 1, 2002, the
$200,000.00 limitation (as adjusted by the Secretary of Treasury for increases
in the cost of living), will be prorated by multiplying the limitation by a
fraction, the numerator of which is the number of months in the Plan Year, and
the denominator of which is 12. Effective January 1, 1997, the family
aggregation rules previously contained in section 401(a)(17) of the Code are
disregarded.
1.04 "BENEFICIARY" OR "BENEFICIARIES" means the person or persons, or the
trust or trusts created for the benefit of a natural person or persons or the
Participant's or former Participant's estate, designated by the Participant or
former Participant to receive the benefits payable under the Plan upon his
death.
1.05 "BENEFIT COMMENCEMENT DATE" means (a) if the Participant or former
Participant does not elect to defer receipt of his distribution, the date of the
Participant's or former Participant's Separation From Service or (b) if the
Participant or former Participant elects to defer receipt of his distribution,
the earlier of the date on which the Participant or former Participant requests
to receive a distribution or the date on which a distribution may be made
without his consent under Section 5.05.
1.06 "BOARD" means the board of directors of the Sponsor.
1.07 "CATCH-UP ELIGIBLE PARTICIPANT" means a Participant who is age 50 or
who is projected to attain the age of 50 by December 31 of the applicable Plan
Year.
1.08 "CODE" means the Internal Revenue Code of 1986, as amended from time
to time.
1.09 "COMMITTEE" means the committee described in Appendix C that is
responsible for the day-to-day administration of the Plan.
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1.10 "COMPANY STOCK" means the common stock of
Xanser Corporation.
1.11 "COMPUTATION PERIOD" shall have the meaning specified in Section
8.01.
1.12 "CONSIDERED COMPENSATION" means as to each Employee, that Employee's
Annual Compensation modified by excluding the following items (even if
includable in gross income): awards, tax gross-up payments, reimbursements or
other expense allowances (such as the payment of moving expenses or automobile
mileage reimbursements), cash and noncash fringe benefits, deferred compensation
other than Salary Deferral Contributions (such as options) and welfare benefits
(such as severance pay). If an Employee is a Highly Compensated Employee,
bonuses paid to him will not be Considered Compensation. Compensation paid to an
Employee during any period in which the Employee does not satisfy the
eligibility requirements of Section 2.01 will not be Considered Compensation.
Effective for Plan Years commencing on or after January 1, 1994, but prior to
January 1, 2002, Considered Compensation in excess of $150,000.00 (as adjusted
by the Secretary of Treasury) shall be disregarded. Effective for Plan Years
commencing on or after January 1, 2002, Considered Compensation in excess of
$200,000.00 (as adjusted by the Secretary of Treasury for increases in the cost
of living) will be disregarded. If the Plan Year is ever less than twelve
months, the $150,000.00 limitation (as adjusted by the Secretary of Treasury for
increases in the cost of living) or, for Plan Years that commence on or after
January 1, 2002, the $200,000.00 limitation (as adjusted by the Secretary of
Treasury for increases in the cost of living) will be prorated by multiplying
the limitation by a fraction, the numerator of which is the number of months in
the Plan Year, and the denominator of which is twelve (12).
1.13 "CONTRIBUTION" means the total amount of contributions made under the
terms of the Plan. Each specific type of Contribution shall be designated by the
type of contribution made as follows:
(a) Salary Deferral Contribution - a contribution made by the
Employer pursuant to Section 3.01 and the Participant's salary deferral
agreement.
(b) Catch-up Salary Deferral Contribution - a contribution made by
the Employer pursuant to Section 3.02 and the Participant's salary
deferral agreement.
(c) Matching Contribution - a contribution made by the Employer
pursuant to Section 3.03.
(d) Supplemental Contribution - a contribution made by the Employer
pursuant to Section 3.04.
(e) Rollover Contribution - a contribution made by a Participant
pursuant to Section 3.05.
(f) QNEC - an extraordinary contribution, known as a "qualified
nonelective employer contribution," made by the Employer pursuant to
Section 3.06 as a means of passing the actual deferral percentage test set
forth in section 401(k) of the Code or the actual contribution percentage
test set forth in section 401(m) of the Code.
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1.14 "DIRECT ROLLOVER" means a payment by the Plan to the Eligible
Retirement Plan specified by the Distributee.
1.15 "DISABILITY" means a physical or mental condition which, in the
judgment of the Committee, based upon medical reports and other evidence
satisfactory to the Committee, will permanently prevent the Participant or
former Participant from satisfactorily performing his usual duties for his
Employer or the duties of such other position or job for which the Participant
or former Participant is qualified by reason of his training, education or
experience, and which (a) was not incurred while the Participant or former
Participant was engaged in a felonious criminal enterprise, and (b) did not
result from alcoholism, addiction to narcotics or a self-inflicted injury.
1.16 "DISTRIBUTEE" means the Participant or former Participant, the
Participant's or former Participant's surviving Spouse, the Participant's or
former Participant's Spouse, or the Participant's or former Participant's former
Spouse who is an alternate payee under a Qualified Domestic Relations Order.
1.17 "ELIGIBLE RETIREMENT PLAN" means (a) an individual retirement account
described in section 408(a) of the Code; (b) an individual retirement annuity
described in section 408(b) of the Code (other than an endowment contract); (c)
an annuity plan described in section 403(a) of the Code; (d) a qualified plan
described in section 401(a) of the Code that is a defined contribution plan that
accepts the Distributee's Eligible Rollover Distribution; (e) effective for a
distribution on or after January 1, 2002, an eligible deferred compensation plan
described in section 457(b) of the Code that is maintained by an eligible
employer described in section 457(e)(1)(A) of the Code but only if the plan
agrees to separately account for amounts rolled into such plan; or (f) effective
for a distribution on or after January 1, 2002, an annuity contract described in
section 403(b) of the Code. However, in the case of an Eligible Rollover
Distribution made prior to January 1, 2002, and after the death of a Participant
or former Participant to a Distributee who is the Participant's or former
Participant's surviving Spouse, an Eligible Retirement Plan is an individual
retirement account or individual retirement annuity.
1.18 "ELIGIBLE ROLLOVER DISTRIBUTION" means 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
Beneficiary, or for a specified period of ten years or more; (b) any
distribution to the extent the distribution is required under section 401(a)(9)
of the Code; (c) the portion of any distribution that is not includable in gross
income (determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities) unless, for a distribution
made on or after January 1, 2002, the Eligible Retirement Plan to which the
distribution is transferred (1) agrees to separately account for amounts so
transferred, including separately accounting for the portion of such
distribution which is not includable in gross income or (2) is an individual
retirement account described in section 408(a) of the Code or an individual
retirement annuity described in section 408(b) of the Code (other than an
endowment contract); and, (d) effective for distributions after December 31,
1998, and prior to January 1, 2002, any financial hardship distribution
described in section 401(k)(2) of the Code from a Participant's or former
Participant's Salary Deferral Contribution
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Account or from the Participant's or former Participant's QNEC Account (to the
extent that QNECs were treated as Section 401(k) Contributions under Appendix
A), and (e) effective for a distribution made after December 31, 2001, a
distribution from any of the Participant's or former Participant's Accounts due
to a financial hardship of the Participant or former Participant.
1.19 "ELIGIBILITY SERVICE" means service for which an Employee is entitled
to receive credit under Article VIII for purposes of initial eligibility to
participate in the Plan.
1.20 "EMPLOYEE" means, except as otherwise specified in this Section, all
common law employees of an Affiliated Employer and all Leased Employees.
1.21 "EMPLOYER" OR "EMPLOYERS" means the Sponsor and any other business
organization that adopts the Plan with the consent of the Sponsor.
1.22 "ENTRY DATE" means for purposes of eligibility to make or receive
allocations of Contributions other than Salary Deferral Contributions and
Rollover Contributions, the first day of the calendar quarter (January 1, April
1, July 1, and October 1) that coincides with or next follows the date that the
Employee is employed in an eligible classification (determined under Article II)
and has completed one year of Eligibility Service. "Entry Date" means, for
purposes of eligibility to make Salary Deferral Contributions and Rollover
Contributions, the first day of the month next following (not coincident with)
the date that the Employee is employed in an eligible classification (determined
under Article II) and has completed an Hour of Employment.
1.23 "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
1.24 "FIVE PERCENT OWNER" means a person who is a five percent owner as
defined in section 416(i) of the Code.
1.25 "FORFEITABLE INTEREST" means a Participant's or former Participant's
forfeitable interest in his Account balance determined under Article VII.
1.26 "HIGHLY COMPENSATED EMPLOYEE" means, effective January 1, 1997, an
Employee of an Affiliated Employer who, (a) during either the calendar year for
which a determination of an Employee's status as a Highly Compensated Employee
or a Non-Highly Compensated Employee is being made, or the preceding calendar
year, was at any time a Five Percent Owner or (b) during the Top-Paid Group
Determination Year had Annual Compensation from the Affiliated Employers in
excess of $80,000.00 (as adjusted from time to time by the Secretary of the
Treasury) and was in the Top-Paid Group for such Top-Paid Group Determination
Year. A former Employee shall be treated as a Highly Compensated Employee if (a)
he was a Highly Compensated Employee when he incurred a Separation From Service,
or (b) he was a Highly Compensated Employee at any time after attaining age 55.
1.27 "HOUR OF EMPLOYMENT" shall have the meaning specified in Section
8.05.
1.28 "HOUR OF SERVICE" means each hour that an Employee is paid or
entitled to payment by an Affiliated Employer for the performance of duties.
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1.29 "LEASED EMPLOYEE" means, effective January 1, 1997, any person who
(a) is not a common law employee of an Affiliated Employer, (b) pursuant to an
agreement between an Affiliated Employer and any other person, has performed
services for an Affiliated Employer (or for an Affiliated Employer and related
persons determined in accordance with section 414(n)(6) of the Code) on a
substantially full-time basis for a period of at least one year and (c) performs
the services under primary direction or control by the recipient.
1.30 "MANDATORY CASHOUT AMOUNT" means the dollar amount specified in
section 411(a)(11) of the Code as it may be amended from time to time.
1.31 "MATCHED SALARY DEFERRAL CONTRIBUTION" means that portion of a
Participant's Salary Deferral Contribution that does not exceed six percent of
the Participant's Considered Compensation for the Plan Year.
1.32 "MATERNITY OR PATERNITY ABSENCE" means a period in which an Employee
is absent from work (a) by reason of the pregnancy of the Employee, (b) by
reason of the birth of a child of the Employee, (c) by reason of the placement
of a child with the Employee in connection with the adoption of the child by the
Employee, or (d) for purposes of caring for such child for a period immediately
following such birth or placement for adoption.
1.33 "NONFORFEITABLE INTEREST" means a Participant's or former
Participant's nonforfeitable interest in his Account balance determined under
Article VII, Section 13.06, Appendix B and other applicable provisions of the
Plan.
1.34 "NON-HIGHLY COMPENSATED EMPLOYEE" means an Employee who is not a
Highly Compensated Employee.
1.35 "NORMAL RETIREMENT AGE" means age 65.
1.36 "PARTICIPANT" means an Employee who is eligible to participate in the
Plan.
1.37 "PERIOD OF SERVICE" means a period of service for an Affiliated
Employer which commences on the day on which an Employee performs his initial
Hour of Service or performs his initial Hour of Service after he Xxxxxx Service,
whichever is applicable, and ends on the date the Employee subsequently Xxxxxx
Service.
1.38 "PERIOD OF SEVERANCE" means the period of time which commences on the
Employee's Severance from Service Date and ends on the date the Employee
subsequently performs an Hour of Service.
1.39 "PLAN" means the
Xanser Corporation 401(k) Savings Investment Plan,
as amended from time to time.
1.40 "PLAN YEAR" means the calendar year.
1.41 "QUALIFIED DOMESTIC RELATIONS ORDER" means an order which the
Committee determines is a qualified domestic relations order as defined in
section 414(p) of the Code.
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1.42 "REGULATION" means the Department of Treasury regulation specified,
as it may be changed from time to time.
1.43 "REQUIRED BEGINNING DATE" means:
(a) effective January 1, 2002, in the case of an individual who is
not a Five Percent Owner in the Plan Year that ends in the calendar year
in which he attains age 70 1/2, the Required Beginning Date is April 1 of
the calendar year following the later of (1) the calendar year in which
the individual attains age 70 1/2, or (2) the calendar year in which the
individual incurs a Separation From Service;
(b) in the case of an individual who is a Five Percent Owner in the
Plan Year that ends in the calendar year in which he attains age 70 1/2,
the Required Beginning Date is April 1 of the calendar year following the
year in which he attains age 70 1/2; and
(c) notwithstanding subsection (a), in the case of an individual who
attained age 70 1/2 prior to January 1, 2002, the Required Beginning Date
is April 1 of the calendar year following the calendar year in which the
individual attained age 70 1/2.
1.44 "ROLLOVER CONTRIBUTION" means the amount contributed by a Participant
which consists of any part of an Eligible Rollover Distribution from a qualified
employee trust described in section 401(a) of the Code other than an amount that
is not includable in the Participant's gross income.
1.45 "SEPARATION FROM SERVICE" means an individual's termination of
employment with an Affiliated Employer without commencing or continuing
employment with (a) any other Affiliated Employer or (b) effective for
distributions prior to January 1, 2002, any other entity under such
circumstances that, under Regulations and Internal Revenue Service rulings, the
individual is not deemed to have incurred a Separation From Service within the
meaning of section 401(k)(2) of the Code.
1.46 "SEVERANCE FROM SERVICE DATE" means the earlier of the date of the
Employee's Separation From Service, or the first anniversary of the date on
which the Employee is absent from service (with or without pay) for any reason
other than his Separation From Service or a Maternity or Paternity Absence, such
as vacation, holiday, sickness, or a leave of absence other than a Maternity or
Paternity Absence. The Severance From Service Date of an Employee who is absent
beyond the first anniversary of his first day of absence by reason of a
Maternity or Paternity Absence is the second anniversary of the first day of the
absence.
1.47 "XXXXXX SERVICE" means the occurrence of a Participant's or former
Participant's Severance From Service Date.
1.48 "SPONSOR" means
Xanser Corporation, a Delaware corporation.
1.49 "SPOUSE" means the person to whom the Participant or former
Participant is married under applicable local law. In addition, to the extent
provided in a Qualified Domestic Relations Order, a surviving former spouse of a
Participant or former Participant will be treated as the Spouse of the
Participant or former Participant and to the same extent any current spouse
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of the Participant or former Participant will not be treated as a Spouse of the
Participant or former Participant.
1.50 "TOP-PAID GROUP" means an Employee who, for the Top-Paid Group
Determination Year in question, is in the group consisting of the top 20 percent
of the Employees when ranked on the basis of Annual Compensation paid for the
Top-Paid Group Determination Year. For purposes of determining the number of
Employees in the Top-Paid Group, the following shall be excluded: (a) an
Employee who has not been an employee for at least six months by the end of the
Top-Paid Group Determination Year; (b) an Employee who normally works less than
17 1/2 hours per week for Affiliated Employers (disregarding any weeks during
which the Employee performed no services for Affiliated Employers); (c) an
Employee who normally works for Affiliated Employers not more than six months
during a calendar year (determined by disregarding the Top-Paid Group
Determination Year, and by treating the individual as having worked for a month
for any month in which he has worked for one day for an Affiliated Employer);
(d) an Employee who has not attained the age of 21; and (e) except to the extent
provided in Regulations, an Employee who is included in a unit of Employees
covered by a collective bargaining agreement between Employee representatives
and an Affiliated Employer.
1.51 "TOP-PAID GROUP DETERMINATION YEAR" means the calendar year
immediately preceding the calendar year for which a determination of the
Employee's status as a Highly Compensated Employee or a Non-Highly Compensated
Employee is being made.
1.52 "TRUST" means the trust estate created to fund the Plan.
1.53 "TRUSTEE" means collectively one or more persons or corporations with
trust powers which have been appointed by the initial Sponsor and have accepted
the duties of Trustee and any successor appointed by the Sponsor.
1.54 "VALUATION DATE" means each business day of the Plan Year.
1.55 "VESTING SERVICE" means service for which an Employee is entitled to
receive credit under Article VIII for purposes of determining his Nonforfeitable
Interest in amounts credited to his Account.
I-8
ARTICLE II
ELIGIBILITY
2.01 ELIGIBILITY REQUIREMENTS. Except as specified in this Section 2.01 or
in Section 2.02 below, each Employee who has completed one year of Eligibility
Service as of June 1, 2001, shall be eligible to participate in the Plan on July
1, 2001. Except as specified below, any other Employee who is employed by an
Employer shall be eligible to participate in the Plan beginning on the first
Entry Date (the first day of the applicable calendar quarter) after June 1,
2001, that occurs with or next follows the date on which the Employee completes
one year of Eligibility Service. An Employee shall not be eligible to
participate in the Plan during any period in which he is included in a unit of
Employees covered by a collective bargaining agreement between Employee
representatives and the Employer shall be excluded if there has been good faith
bargaining between the Employer and the Employee representatives pertaining to
retirement benefits and the agreement does not require the Employer to include
the Employee in the Plan. In addition, a Leased Employee shall not be eligible
to participate in the Plan unless the Plan's qualified status is dependent upon
coverage of the Leased Employee. An Employee who is a nonresident alien (within
the meaning of section 7701(b) of the Code) and receives no earned income
(within the meaning of section 911(d)(2) of the Code) from any Affiliated
Employer that constitutes income from sources within the United States (within
the meaning of section 861(a)(3) of the Code) is not eligible to participate in
the Plan. During any period in which an individual is classified by an Employer
as an independent contractor with respect to such Employer, the individual is
not eligible to participate in the Plan (even if he is subsequently reclassified
by the Internal Revenue Service or a court as a common law employee of the
Employer and the Employer acquiesces to the reclassification). An Employee who
is a nonresident alien (within the meaning of section 7701(b) of the Code) and
receives no earned income (within the meaning of section 911(d)(2) of the Code)
from any Affiliated Employer that constitutes income from sources within the
United States (within the meaning of section 861(a)(3) of the Code) is not
eligible to participate in the Plan. An Employee who is a nonresident alien
(within the meaning of section 7701(b) of the Code) and who does receive earned
income (within the meaning of section 911(d)(2) of the Code) from any Affiliated
Employer that constitutes income from sources within the United States (within
the meaning of section 861(a)(3) of the Code) all of which is exempt from United
States income tax under an applicable tax convention is not eligible to
participate in the Plan. An Employee who is expatriated to the United States
from another country is not eligible to participate in the Plan for so long as
he continues to accrue deferred compensation or retirement benefits under any
agreement or program to which an Affiliated Employer other than an Employer is a
party. Finally, an Employee who is employed outside the United States is not
eligible to participate in the Plan unless the Committee elects to permit him to
participate in the Plan.
2.02 EARLY PARTICIPATION FOR SALARY DEFERRAL CONTRIBUTION AND ROLLOVER
PURPOSES. An Employee who satisfies the eligibility requirements specified in
Section 2.01 other than the service requirement shall be eligible to make Salary
Deferral Contributions and Rollover Contributions to the Plan on the later of
June 1, 2000, or the Entry Date (the first day of the month) next following (not
coincident with) the date on which he completes an Hour of Employment.
II-1
2.03 ELIGIBILITY UPON REEMPLOYMENT. If an Employee incurs a Separation
From Service with the Employer prior to the date he initially begins
participating in the Plan, he shall be eligible to begin participation in the
Plan on the later of (a) the date he would have commenced participation in the
Plan if he had not incurred a Separation From Service or (b) the date on which
he performs an Hour of Service after his Separation From Service. Subject to
Section 2.04, once an Employee commences participation in the Plan, his
eligibility to participate in the Plan shall continue until he Xxxxxx Service.
2.04 CESSATION OF PARTICIPATION. An individual who has commenced
participation in the Plan will cease participation in the Plan on the earliest
of the date on which he (a) Xxxxxx Service, (b) is transferred from the employ
of an Employer to the employ of an Affiliated Employer that has not adopted the
Plan, (c) becomes included in a unit of employees covered by a collective
bargaining agreement that does not require coverage of those employees under the
Plan, (d) becomes a Leased Employee, or (e) becomes included in another
classification of Employees who, under the terms of the Plan, are not eligible
to participate. Under these circumstances, the former Participant's Account
becomes frozen; he cannot contribute to the Plan or share in the allocation of
any Contributions for the frozen period. However, his Account shall continue to
share in any Plan income allocable to his Account during the frozen period of
time.
2.05 RECOMMENCEMENT OF PARTICIPATION. A person who previously participated
in the Plan will again participate in the Plan on the day on which he becomes
included in a classification of Employees that, under the terms of the Plan, is
eligible to participate.
II-2
ARTICLE III
CONTRIBUTIONS
3.01 SALARY DEFERRAL CONTRIBUTIONS. The Employer shall make a Salary
Deferral Contribution in an amount equal to the amount by which its
Participants' Considered Compensation was reduced as a result of salary deferral
agreements (excluding amounts of Considered Compensation deferred pursuant to
Section 3.02 that are properly characterized as Catch-up Salary Deferral
Contributions). Any such salary deferral agreement shall be an agreement in a
form satisfactory to the Committee to prospectively receive Considered
Compensation from the Employer in a reduced amount and to have the Employer
contribute an amount equal to the amount of the reduction to the Trust on
account of the Participant. Further, any such salary deferral agreement shall be
revocable in accordance with its terms, provided that no revocation shall be
retroactive or permit payment to the Participant of the amount required to be
contributed to the Trust. A Participant's or former Participant's right to
benefits derived from Salary Deferral Contributions made to the Plan on his
behalf shall be nonforfeitable. The maximum amount a Participant may elect to
reduce his Considered Compensation under his salary deferral agreement shall be
determined by the Committee, in its sole discretion from time to time. In
addition, the election to have Salary Deferral Contributions made, the ability
to change the rate of Salary Deferral Contributions, the right to suspend Salary
Deferral Contributions, and the manner of commencing new Salary Deferral
Contributions shall be permitted under any uniform method determined by the
Committee from time to time.
3.02 CATCH-UP SALARY DEFERRAL CONTRIBUTIONS. The Employer shall make a
Catch-up Salary Deferral Contribution in an amount equal to the amounts by which
its Participants' Considered Compensation was reduced as a result of salary
deferral agreements authorizing Catch-up Salary Deferral Contributions (to the
extent that their deferrals are properly characterized as Catch-up Salary
Deferral Contributions). Any such salary deferral agreement shall be an
agreement in a form satisfactory to the Committee to prospectively receive
Considered Compensation from the Employer in a reduced amount and to have the
Employer contribute an amount equal to the amount of the reduction to the Trust
on behalf of the Participant. Further, any such salary deferral agreement shall
be revocable in accordance with its terms, provided that no revocation shall be
retroactive or permit payment to the Participant of the amount required to be
contributed to the Trust. A Participant's or former Participant's right to
benefits derived from Catch-up Salary Deferral Contributions made to the Plan on
his behalf shall be nonforfeitable.
Catch-up Salary Deferral Contributions on behalf of a Participant shall be
permitted to the extent that the Catch-up Salary Deferral Contributions do not
exceed the lesser of (a) the "applicable dollar amount" under section 414(v) of
the Code for the Plan Year (as adjusted from time to time by the Secretary of
Treasury), or (b) an amount equal to the Participant's Annual Compensation for
the Plan Year minus the Participant's Salary Deferral Contributions for the Plan
Year.
A final determination as to whether amounts deferred under the Plan by a
Participant are properly characterized as Salary Deferral Contributions or
Catch-up Salary Deferral Contributions for a Plan Year shall be made as of the
end of the Plan Year. To the extent that
III-1
amounts deferred under the Plan on a pre-tax basis at the election of a
Participant exceed the least of (a) the lowest statutory limit on Salary
Deferral Contributions (including limits imposed under sections 401(a)(30) and
415 of the Code), (b) the maximum limitation on Salary Deferral Contributions,
if any, imposed by the Committee pursuant to Section 3.01, or (c) the highest
amount of Salary Deferral Contributions on behalf of the Participant that may be
retained in the Plan under the rules of section 401(k)(8)(C) of the Code, the
amounts deferred shall be characterized as Catch-up Salary Deferral
Contributions. Any amounts deferred under the Plan on a pre-tax basis at the
election of a Participant that are not properly characterized as Catch-up Salary
Deferral Contributions pursuant to the rules of the preceding sentence shall be
characterized as Salary Deferral Contributions for all purposes under the Plan.
3.03 MATCHING CONTRIBUTIONS. Effective July 1, 2001, the Employer will
make a Matching Contribution in an amount equal to 50 percent of the Matched
Salary Deferral Contributions of all Participants who satisfy the requirement of
Section 2.01 for the Plan Year.
3.04 SUPPLEMENTAL CONTRIBUTIONS. The Employer shall contribute a
Supplemental Contribution in an amount equal to two percent of the Considered
Compensation of all Participants who satisfy the requirement of Section 2.01
during the Plan Year or such greater amount as shall be determined by the
Employer.
3.05 ROLLOVER CONTRIBUTIONS AND PLAN-TO-PLAN TRANSFERS. The Committee may
permit Rollover Contributions by Participants and/or direct transfers to or from
another qualified plan on behalf of Participants from time to time. If Rollover
Contributions and/or direct transfers to or from another qualified plan are
permitted, the opportunity to make those contributions and/or direct transfers
must be made available to Participants on a nondiscriminatory basis. For this
purpose only, all Employees who are included in a classification of Employees
who are eligible to participate in the Plan shall be considered to be
Participants of the Plan even though they may not have met the Eligibility
Service requirements for eligibility. However, they shall not be entitled to
elect to have Salary Deferral Contributions made or to share in Employer
Contributions or forfeitures unless and until they have met the requirements for
eligibility, contributions and allocations. A Rollover Contribution shall not be
accepted unless it is directly rolled over to the Plan in a rollover described
in section 401(a)(31) of the Code. A Participant shall not be permitted to make
a Rollover Contribution if the property he intends to contribute is for any
reason unacceptable to the Trustee. A Participant's or former Participant's
right to benefits attributable to his Rollover Contributions made to the Plan
shall be nonforfeitable.
3.06 QNECS - EXTRAORDINARY EMPLOYER CONTRIBUTIONS. Any Employer may make a
QNEC in such amount, if any, as shall be determined by it. A Participant's or
former Participant's right to benefits derived from QNECs made to the Plan on
his behalf shall be nonforfeitable. In no event will QNECs be distributed before
Salary Deferral Contributions may be distributed.
3.07 RESTORATION CONTRIBUTIONS. The Employer shall, for each Plan Year,
make a restoration contribution in an amount equal to the sum of (a) such
amount, if any, as shall be necessary to fully restore all Matching Contribution
Accounts and Supplemental Contribution Accounts required to be restored pursuant
to the provisions of Section 9.02 after the application of all forfeitures
available for such restorations; plus (b) an amount equal in value to the value
of
III-2
forfeited benefits described in and payable under Section 9.03, after the
application of all forfeitures available for such restorations.
3.08 RESTORATIVE PAYMENTS. If due to an oversight or inadvertent error an
Employer fails to make a Contribution to the Plan on behalf of a Participant or
former Participant, as soon as administratively practicable following the
Employer's discovery of the error, the Employer shall make a restorative payment
to the Plan on behalf of the Employee in an amount equal to the amount of
required Contributions the Employer should have made to the Plan on behalf of
the Participant or former Participant plus interest thereon (both determined in
a manner that is consistent with then-current guidance from the Department of
Treasury concerning such restorative payments) after the application of
forfeitures available for such restoration.
3.09 NONDEDUCTIBLE CONTRIBUTIONS NOT REQUIRED. Notwithstanding any other
provision of the Plan, no Employer shall be required to make any contribution
that would be a "nondeductible contribution" within the meaning of section 4972
of the Code.
3.10 DEADLINE FOR PAYMENT OF EMPLOYER CONTRIBUTIONS. Salary Deferral
Contributions and Catch-up Salary Deferral Contributions shall be paid to the
Trustee in installments. The installment for each payroll period shall be paid
as soon as administratively feasible. The Matching Contributions, the
Supplemental Contributions and QNECs for a Plan Year shall be paid to the
Trustee in one or more installments, as the Employer may from time to time
determine; provided, however, that such contributions may not be paid later than
the time prescribed by law (including extensions thereof) for filing the
Employer's income tax return for its taxable year ending with or within such
Plan Year.
3.11 RETURN OF CONTRIBUTIONS FOR MISTAKE, DISQUALIFICATION OR DISALLOWANCE
OF DEDUCTION. Subject to the limitations of section 415 of the Code, the assets
of the Trust shall not revert to any Employer or be used for any purpose other
than the exclusive benefit of the Participants, former Participants, and their
Beneficiaries and the reasonable expenses of administering the Plan except:
(a) any Employer Contribution made because of a mistake of fact may
be repaid to the Employer within one year after the payment of the
Contribution;
(b) all Employer Contributions are conditioned upon the Plan's
initial qualification under section 401 of the Code and may be repaid to
the Employer within one year after the date of denial of the initial
qualification of the Plan; and
(c) all Employer Contributions are conditioned upon their
deductibility under section 404 of the Code; therefore, to the extent the
deduction is disallowed, the Contributions may be repaid to the Employer
within one year after the disallowance.
The Employer has the exclusive right to determine if a Contribution or any
part of it is to be repaid or is to remain as a part of the Trust except that
the amount to be repaid is limited, if the Contribution is made by mistake of
fact or if the deduction for the Contribution is disallowed, to the excess of
the amount contributed over the amount that would have been contributed had
there been no mistake or over the amount disallowed. Earnings which are
attributable to any excess contribution cannot be repaid. Losses attributable to
an excess contribution must reduce
III-3
the amount that may be repaid. All repayments of Contributions made due to a
mistake of fact or with respect to which a deduction is disallowed are limited
so that the balance in a Participant's or former Participant's Account cannot be
reduced to less than the balance that would have been in the Participant's or
former Participant's Account had the mistaken amount or the amount disallowed
never been contributed.
III-4
ARTICLE IV
ALLOCATION AND VALUATION OF ACCOUNTS
4.01 INFORMATION STATEMENTS FROM EMPLOYER. Upon request by the Committee,
the Employer shall provide the Committee with a schedule setting forth the
amount of its Salary Deferral Contribution, Supplemental Contribution, QNEC, and
restoration contribution; the names of its Participants, the number of years of
Vesting Service of each of its Participants and former Participants, the amount
of Considered Compensation and Annual Compensation paid to each Participant and
former Participant, and the amount of Considered Compensation and Annual
Compensation paid to all its Participants and former Participants. Such
schedules shall be conclusive evidence of such facts.
4.02 ALLOCATION OF SALARY DEFERRAL CONTRIBUTIONS. The Committee shall
allocate the Salary Deferral Contribution among the Participants by allocating
to each Participant the amount by which his Considered Compensation was reduced
pursuant to a salary deferral agreement under Section 3.01 and shall credit each
such Participant's share to his Salary Deferral Contribution Account.
4.03 ALLOCATION OF CATCH-UP SALARY DEFERRAL CONTRIBUTIONS. The Committee
shall allocate the Catch-up Salary Deferral Contribution among the Participants
by allocating to each Participant the amount by which his Considered
Compensation was reduced pursuant to a salary deferral agreement under Section
3.02 and shall credit each such Participant's share to his Catch-up Salary
Deferral Contribution Account.
4.04 ALLOCATION OF MATCHING CONTRIBUTIONS. The Committee shall separately
allocate the Matching Contribution made by an Employer among the Employer's
Participants based upon the Matched Salary Deferral Contributions of each such
Participant. Each Participant's proportionate share shall be credited to his
Matching Contribution Account.
4.05 ALLOCATION OF SUPPLEMENTAL CONTRIBUTIONS. For each Plan Year, the
Committee shall allocate the Supplemental Contribution made by an Employer among
the Participants who are employed by the Employer during the Plan Year, based
upon each such Participant's Considered Compensation paid by the Employer as
compared to the Considered Compensation for all such Participants employed by
the Employer and eligible for the allocation.
4.06 ALLOCATION OF QNECS. The Committee shall separately allocate the QNEC
among the Non-Highly Compensated Employees who are Participants based upon each
such Participant's Considered Compensation as compared to the Considered
Compensation of all such Participants.
4.07 ALLOCATION OF FORFEITURES. At the time a forfeiture occurs pursuant
to Article IX, Section A.3.3 of Appendix A, the amount forfeited will first be
used to reinstate any Account required to be reinstated under Article IX, and
any remaining amount will be applied to reduce the Employer's obligation to make
future Matching Contributions or Supplemental Contributions. However, in no
event will amounts forfeited pursuant to Section A.3.3 of
IV-1
Appendix A be allocated to the Accounts of Participants whose Matching
Contributions are forfeited pursuant to Section A.3.3 of Appendix A.
4.08 VALUATION OF ACCOUNTS. A Participant's or former Participant's
Account shall be valued at fair market value on each Valuation Date. The
earnings and losses attributable to any asset in the Trust will be allocated
solely to the Account of the Participant or former Participant on whose behalf
the investment in the asset was made. In determining the fair market value of
the Participant's or former Participant's Account, the Trustee shall utilize
such sources of information as it may deem reliable including, but not limited
to, stock market quotations, statistical evaluation services, newspapers of
general circulation, financial publications, advice from investment counselors
or brokerage firms, or any combination of sources which in the opinion of the
Trustee will provide the price such assets were last traded at on a registered
stock exchange; provided, however, that with respect to regulated investment
company shares, the Trustee shall rely exclusively on information provided to it
by the investment adviser to such funds.
4.09 NO RIGHTS UNLESS OTHERWISE PRESCRIBED. No allocations, adjustments,
credits, or transfers shall ever vest in any Participant or former Participant
any right, title, or interest in the Trust except at the times and upon the
terms and conditions herein set forth.
IV-2
ARTICLE V
BENEFITS
5.01 BENEFIT UPON SEPARATION FROM SERVICE. Upon his Separation From
Service, a Participant or former Participant (or in the event the Participant or
former Participant has died, his Beneficiary) is entitled to receive his
Nonforfeitable Interest in his Account balance (reduced by any security interest
held by the Plan by reason of a loan outstanding to the Participant or former
Participant) commencing no later than the applicable deadline specified in
Section 5.04.
5.02 DISTRIBUTION METHOD AVAILABLE. The only distribution method available
under the Plan is a lump sum payment in cash or in kind.
5.03 DIRECT ROLLOVER OPTION. To the extent required under Regulations, a
Distributee has the right to direct that any portion of his Eligible Rollover
Distribution will be directly paid to an Eligible Retirement Plan specified by
him that will accept the Eligible Rollover Distribution.
5.04 TIME OF DISTRIBUTION. Notwithstanding any other provision of the
Plan, all benefits payable under the Plan shall be distributed, or commence to
be distributed, in compliance with the following provisions:
(a) DISTRIBUTION DEADLINES FOR CERTAIN PARTICIPANTS AND FORMER
PARTICIPANTS WHO ARE AGE 70 1/2 OR OLDER. If a Participant or former
Participant is required to receive a distribution under section 401(a)(9)
of the Code, the Participant or former Participant must elect to receive a
distribution in one lump sum or in installments which must commence by his
Required Beginning Date. If installments are elected, each installment
paid must be equal to or greater than the minimum required distribution
under section 401(a)(9) of the Code.
(b) DISTRIBUTION DEADLINE FOR DEATH BENEFITS. If a Participant or
former Participant dies before the distribution of his Plan benefit has
commenced, his entire interest shall be distributed within five years
after his death. This five-year deadline (as opposed to the life
expectancy rule in section 401(a)(9)(B)) will apply in all cases.
(c) LIMITATIONS ON DEATH BENEFITS. Benefits payable under the Plan
shall not be provided in any form that would cause a Participant's or
former Participant's death benefit to be more than incidental. Any
distribution required to satisfy the incidental benefit requirement shall
be considered a required distribution for purposes of section 401(a)(9) of
the Code.
(d) COMPLIANCE WITH SECTION 401(A)(9). All distributions under the
Plan will be made in accordance with the requirements of section 401(a)(9)
of the Code and all Regulations promulgated thereunder, including,
effective January 1, 2001, Regulations that were proposed in January of
2001 (until final Regulations are issued) but not including Regulations
that were proposed prior to January of 2001.
V-1
(e) COMPLIANCE WITH SECTION 401(A)(14). Unless the Participant or
former Participant otherwise elects, the payment of benefits under the
Plan to the Participant or former Participant will begin not later than
the 60th day after the close of the Plan Year in which occurs the latest
of (1) the date on which the Participant or former Participant attains the
later of age 62 or Normal Retirement Age, (2) the tenth anniversary of the
year in which the Participant or former Participant commenced
participation in the Plan, or (3) the date of the Participant's or former
Participant's Separation From Service.
(f) EMPLOYER DISTRIBUTION DEADLINE. Subject to the Participant's
rights under Section 5.03, the Employer shall have the right to instruct
the Trustee to immediately distribute the Participant's Account balance at
any time after the later of the date on which the Participant's Separation
From Service occurs on the date on which the Participant attains age 65.
5.05 CONSENT TO DISTRIBUTION UPON SEPARATION FROM SERVICE. Notwithstanding
any other provision of the Plan, no benefit shall be distributed or commence to
be distributed to a Participant or former Participant prior to his attainment of
the later of age 62 or Normal Retirement Age without his consent, unless the
benefit is payable immediately under Section 5.07. Any such consent shall be
valid only if given not more than 90 days prior to the Participant's or former
Participant's Benefit Commencement Date and after his receipt of the notice
regarding benefits described in Section 5.06.
5.06 INFORMATION PROVIDED TO PARTICIPANTS OR FORMER PARTICIPANTS. Unless a
Participant's or former Participant's benefit is payable immediately under
Section 5.07, the Sponsor shall provide such Participant or former Participant
with a written explanation of the Participant's or former Participant's right,
if any, to defer receipt of the distribution and an explanation of his rights
under Section 5.03. The written explanation shall be provided to a Participant
or former Participant no less than 30 days and no more than 90 days before his
Benefit Commencement Date unless he legally waives this requirement.
5.07 IMMEDIATE PAYMENT OF SMALL BENEFIT. Notwithstanding any other
provision of the Plan other than Section 5.03, if a Participant's or former
Participant's Account balance at the time of his Separation From Service is less
than or equal to the Mandatory Cashout Amount, his Account balance shall be paid
to him (or in the event he has died, to his Beneficiary) as soon as
administratively practicable in the form of a single sum payment. The Committee
is authorized to establish a default procedure whereby any Distributee who is
subject to this Section 5.07 and fails to make an affirmative election to make a
direct rollover is deemed to have elected to receive a lump sum cash
distribution of his entire Nonforfeitable Interest in his Plan benefit. However,
a distribution will not be made under the default procedure unless the
Distributee has received an explanation of the default procedure, as well as the
notification of his direct rollover rights referred to in Section 5.06, within
the time periods prescribed by law.
5.08 DESIGNATION OF BENEFICIARY. Each Participant or former Participant
has the right to designate and to revoke the designation of his Beneficiary or
Beneficiaries. Each designation or revocation must be evidenced by a written
document in the form required by the Committee, signed by the Participant or
former Participant and filed with the Committee. If no designation is on file at
the time of a Participant's or former Participant's death or if the Committee
determines
V-2
that the designation is ineffective, the designated Beneficiary shall be the
Participant's or former Participant's Spouse, if living, or if not, the
executor, administrator or other personal representative of the Participant's or
former Participant's estate. If a Participant or former Participant is
considered to be married under local law, the Participant's or former
Participant's designation of any Beneficiary, other than the Participant's or
former Participant's Spouse, shall not be valid unless the spouse acknowledges
in writing that she understands the effect of the Participant's or former
Participant's beneficiary designation and consents to it. The consent must be to
a specific Beneficiary. The written acknowledgement and consent must be filed
with the Committee, signed by the Spouse and at least two witnesses, one of whom
must be a Participant or former Participant's of the Committee or a notary
public. However, if the Spouse cannot be located or there exist other
circumstances as described in sections 401(a)(11) and 417(a)(2) of the Code, the
requirement of the Participant's or former Participant's Spouse's
acknowledgement and consent may be waived. If a Beneficiary other than the
Participant's or former Participant's Spouse is named, the designation shall
become invalid if the Participant or former Participant is later determined to
be married under local law, the Participant's or former Participant's missing
Spouse is located or the circumstances which resulted in the waiver of the
requirement of obtaining the consent of the Participant's or former
Participant's Spouse no longer exist.
5.09 DISTRIBUTION FOR INCAPACITATED PERSON OR A MINOR. If the Committee
determines that any person to whom a payment is due is a minor or is unable to
care for his affairs because of physical or mental disability, it shall have the
authority to cause the payments to be made to the Spouse, parent, brother,
sister or other person the Committee determines to have incurred, or to be
expected to incur, expenses for that person unless a prior claim is made by a
qualified guardian or other legal representative. The Committee and the Trustee
shall not be responsible to oversee the application of those payments. Payments
made pursuant to this power shall be a complete discharge of all liability under
the Plan and the Trust and the obligations of the Employer, the Trustee, the
Trust and the Committee.
5.10 DISTRIBUTION PURSUANT TO QUALIFIED DOMESTIC RELATIONS ORDER. The
Committee will instruct the Trustee to pay benefits in accordance with the terms
of any order that has been determined, in accordance with Plan procedures, to be
a Qualified Domestic Relations Order. A Qualified Domestic Relations Order may
require the payment of an immediate cash lump sum to an alternate payee even if
the Participant is not then entitled to receive an immediate payment of Plan
benefits.
5.11 CLAIMS PROCEDURE. When a benefit is due, the Participant, former
Participant, or Beneficiary should submit a claim to the office designated by
the Committee to receive claims. Under normal circumstances, the Committee will
make a final decision as to a claim within 90 days after receipt of the claim.
If the Committee notifies the claimant in writing during the initial 90-day
period, it may extend the period up to 180 days after the initial receipt of the
claim. The written notice must contain the circumstances necessitating the
extension and the anticipated date for the final decision. If a claim is denied
during the claims period, the Committee must notify the claimant in writing. The
denial must include the specific reasons for it, the Plan provisions upon which
the denial is based, any additional material or information necessary for the
claimant to perfect the claim and an explanation of why such material or
information is necessary, and the
V-3
Plan's review procedures and time limits, including a statement of the
claimant's right to bring a civil action under section 502(a) of ERISA.
If a Participant's, former Participant's or Beneficiary's claim is denied
and he wants a review, he must apply to the Committee in writing. That
application can include any arguments, written comments, documents, records, and
other information relating to the claim for benefits. In addition, the claimant
is entitled to receive on request and free of charge reasonable access to and
copies of all information relevant to the claim. For this purpose, "relevant"
means information that was relied on in making the benefit determination or that
was submitted, considered or generated in the course of making the
determination, without regard to whether it was relied on, and information that
demonstrates compliance with the Plan's administrative procedures and safeguards
for assuring and verifying that Plan provisions are applied consistently in
making benefit determinations. The Committee must take into account all
comments, documents, records, and other information submitted by the claimant
relating to the claim, without regard to whether the information was submitted
or considered in the initial benefit determination. The claimant may either
represent himself or appoint a representative, either of whom has the right to
inspect all documents pertaining to the claim and its denial. The Committee can
schedule any meeting with the claimant or his representative that it finds
necessary or appropriate to complete its review. The request for review must be
filed within 90 days after the denial. If it is not, the denial becomes final.
If a timely request is made, the Committee must make its decision, under normal
circumstances, within 60 days of the receipt of the request for review. However,
if the Committee notifies the claimant prior to the expiration of the initial
review period, it may extend the period of review up to 120 days following the
initial receipt of the request for a review. All decisions of the Committee must
be in writing and must include the specific reasons for its action, the Plan
provisions on which its decision is based, and a statement that the claimant is
entitled to receive, upon request and free of charge, reasonable access to, and
copies of, all documents, records, and other information relevant to the
claimant's claim for benefits, and a statement of the claimant's right to bring
an action under section 502(a) of ERISA If a decision is not given to the
claimant within the review period, the claim is treated as if it were denied on
the last day of the review period.
V-4
ARTICLE VI
IN-SERVICE DISTRIBUTIONS AND LOANS
6.01 IN-SERVICE FINANCIAL HARDSHIP DISTRIBUTIONS.
(a) General. Prior to his Separation From Service, a Participant or
former Participant is entitled to receive a distribution from his Salary
Deferral Contribution Account (except for income credited to his Salary
Deferred Contribution Account), his Catch-up Salary Deferral Contribution
Account (except for income credited to his Catch-up Salary Deferral
Contribution Account), and his Rollover Account in the event of an
immediate and heavy financial need incurred by the Participant or former
Participant and the Committee's determination that the withdrawal is
necessary to alleviate that hardship.
(b) Permitted Reasons for Financial Hardship Withdrawals. A
distribution shall be made on account of financial hardship only if the
distribution is for: (1) Expenses for medical care described in section
213(d) of the Code previously incurred by the Participant or former
Participant, the Participant's or former Participant's Spouse, or any
dependents of the Participant or former Participant (as defined in section
152 of the Code) or necessary for these persons to obtain medical care
described in section 213(d) of the Code, (2) costs directly related to the
purchase (excluding mortgage payments) of a principal residence for the
Participant or former Participant, (3) payment of tuition and related
educational fees for the next 12 months of post-secondary education for
the Participant, or former Participant, his Spouse, children, or
dependents (as defined in section 152 of the Code), or (4) payments
necessary to prevent the eviction of the Participant or former Participant
from his principal residence or foreclosure on the mortgage of the
Participant's or former Participant's principal residence.
(c) Amount. A distribution to satisfy an immediate and heavy
financial need shall not be made in excess of the amount of the immediate
and heavy financial need of the Participant or former Participant and the
Participant or former Participant must have obtained all distributions,
other than hardship distributions, and all nontaxable (at the time of the
loan) loans currently available under all plans maintained by the
Employer. The amount of a Participant's or former Participant's immediate
and heavy financial need includes any amounts necessary to pay any
federal, state or local income taxes or penalties reasonably anticipated
to result from the financial hardship distribution.
(d) Suspension of Participation in Certain Benefit Programs. The
Participant's or former Participant's hardship distribution shall
terminate his right to have the Employer make any Salary Deferral
Contributions on his behalf until the next time Salary Deferral
Contributions are permitted after (1) the lapse of 12 months following the
hardship distribution if the hardship distribution is made prior to
January 1, 2002, or six months after he receives a hardship distribution
if the distribution is made on or after January 1, 2002, and (2) his
timely filing of a written request to resume his Salary Deferral
Contributions. In addition, for 12 months after he receives a hardship
distribution from the Plan, the Participant or former Participant is
prohibited from making
VI-1
elective contributions and employee contributions to or under all other
qualified and nonqualified plans of deferred compensation maintained by
the Employer. However, the Participant or former Participant is not
prohibited from making contributions to a health or welfare benefit plan,
including one that is part of a cafeteria plan within the meaning of
section 125 of the Code.
(e) Resumption of Salary Deferral Contributions. Effective for Plan
Years that commence prior to January 1, 2002, when the Participant or
former Participant resumes Salary Deferral Contributions, he cannot have
the Employer make any Salary Deferral Contributions in excess of the limit
in section 402(g) of the Code for that taxable year reduced by the amount
of Salary Deferral Contributions made by the Employer on the Participant's
or former Participant's behalf during the taxable year of the Participant
or former Participant in which he received the hardship distribution.
(f) Order of Withdrawals. Financial hardship distributions will be
made in the following order: First withdrawals will be made from the
Participant's or former Participant's Rollover Account, then from his
Salary Deferral Contribution Account, and finally, from his Catch-up
Salary Deferral Contribution Account. A Participant or former Participant
shall not be entitled to receive a financial hardship distribution of any
amount credited to his QNEC Account, or of any income that is allocable or
credited to his Salary Deferral Contribution Account or Catch-up Salary
Deferral Contribution Account.
(g) Method of Payment. Distributions pursuant to this Section 6.01
will be paid in lump sums in cash.
6.02 IN-SERVICE AGE 59 1/2 DISTRIBUTIONS. Prior to his Separation From
Service, a Participant or former Participant may withdraw part or all of his
Nonforfeitable Interest in his Account balances on or after the date that he
attains age 59 1/2. Distributions pursuant to this Section 6.02 will be paid in
lump sums in cash.
6.03 LOANS. The Committee may direct the Trustee to make a loan to a
Participant or former Participant who is an Employee, or to a Beneficiary who is
a "party in interest" within the meaning of ERISA. The Committee will be
responsible for administering the Plan loan program. The Committee is authorized
to adopt Plan loan procedures. All loans will comply with the following
requirements:
(a) All loans will be made solely from the Participant's, former
Participant's, or Beneficiary's Account.
(b) Loans will be available on a nondiscriminatory basis to all
Beneficiaries who are "parties in interest" within the meaning of ERISA,
and to all Participants and former Participants who are Employees.
(c) Loans will not be made for less than $1,000.00.
(d) The maximum amount of a loan may not exceed the lesser of (1)
$50,000.00 reduced by the person's highest outstanding loan balance from
the Plan during the preceding one-year period, or (2) one-half of the
person's Nonforfeitable
VI-2
Interest in his Account balance determined as of the date on which the
loan is approved by the Committee.
(e) Any loan from the Plan will be evidenced by a note or notes
(signed by the person applying for the loan) having such maturity, bearing
such rate of interest, and containing such other terms as the Committee
will require by uniform and nondiscriminatory rules consistent with this
Section and proper lending practices.
(f) All loans will bear a reasonable rate of interest which will be
established by the Committee.
(g) Each loan will be fully secured by a pledge of the borrowing
person's Account balance. No more than 50 percent of the person's Account
balance (determined immediately after the origination of the loan) will be
considered as security for any loan.
(h) Generally, the term of the loan will not be more than five
years. The Committee may agree to a longer term only if such term is
otherwise reasonable and the proceeds of the loan are to be used to
acquire a dwelling which will be used within a reasonable time (determined
at the time the loan is made) as the principal residence of the borrowing
person.
(i) The terms of each Plan loan agreement will require substantially
level amortization of the loan (with payments not less frequently than
quarterly) over the term of the loan. However, the level amortization
requirement will not apply for a period, not longer than one year (or such
longer period as may apply under the Uniformed Services Employment and
Reemployment Rights Act of 1994 ("USERRA")) that an eligible borrower is
on a bona fide leave of absence, either without pay from the Employer or
at a rate of pay (after income and employment tax withholding) that is
less than the amount of the installment payments required under the terms
of the loan. However, the loan (including interest that accrues during the
leave of absence) must be repaid by the five-year loan maturity deadline
specified in paragraph (h) above (unless the loan was a home loan
described in paragraph (h) above), and the amount of the installments due
after the leave ends (or, if earlier, after the first anniversary of the
leave or such longer period as may apply under USERRA) must not be less
than the amount required under the terms of the original loan.
(j) No amount that is pledged as collateral for a Plan loan to a
Participant or former Participant will be available for distribution or
withdrawal before the Participant or former Participant has fully repaid
his loan.
(k) All interest payments made pursuant to the terms of the loan
agreement will be credited to the borrowing person's Account and will not
be considered as general earnings of the Trust to be allocated to other
Participants or former Participants.
(l) A Participant or former Participant may have no more than one
Plan loan outstanding at any time.
VI-3
ARTICLE VII
VESTING
A Participant or former Participant always has a fully Nonforfeitable
Interest in amounts credited to his Salary Deferral Contribution Account, his
Catch-up Salary Deferral Contribution Account, his QNEC Account and his Rollover
Account. A Participant or former Participant has a fully Nonforfeitable Interest
in amounts credited to his Matching Contribution Account and his Supplemental
Contribution Account when he (a) attains his Normal Retirement Age on or prior
to his Separation From Service, (b) incurs a Separation From Service due to
death or (c) incurs a Separation From Service due to Disability. Prior to the
occurrence of any of the three events listed in the preceding sentence, a
Participant or former Participant has a Nonforfeitable Interest in amounts
credited to his Matching Contribution Account and his Supplemental Contribution
Account determined in accordance with the following vesting schedule:
IF THE PARTICIPANT OR FORMER
PARTICIPANT HAS COMPLETED THE
FOLLOWING NUMBER OF YEARS OF VESTING HIS NONFORFEITABLE
SERVICE INTEREST IS
---------------------------------------- -------------------------
Less than one year 0 percent
One but less than two 20 percent
Two but less than three 40 percent
Three but less than four 60 percent
Four but less than five 80 percent
Five or more 100 percent
Except as specified in this Article, subject to the possible application
of Section 13.06 or Section B.2.3 of Appendix B, a Participant or former
Participant has no Nonforfeitable Interest in amounts credited to his Matching
Contribution Account or his Supplemental Contribution Account. To the extent
that a Participant or former Participant does not have a Nonforfeitable Interest
in amounts credited to his Matching Contribution Account or his Supplemental
Contribution Account, he has a Forfeitable Interest in amounts credited to such
accounts.
VII-1
ARTICLE VIII
ELIGIBILITY SERVICE AND VESTING SERVICE
8.01 ELIGIBILITY SERVICE. For the purpose of determining eligibility to
participate in the Plan, an Employee will earn one year of Eligibility Service
if he completes 1,000 Hours of Employment during a Computation Period. The
Computation Period is merely a measurement period during which an Employee must
earn 1,000 Hours of Employment in order to be credited with one year of
Eligibility Service. There is no requirement that the entire 12-month
Computation Period must elapse before the Employee may be credited with one year
of Eligibility Service. Initially, an Employee's Computation Period is the
12-month period commencing on the date on which he first completes an Hour of
Employment. If the Employee does not complete 1,000 Hours of Employment during
the 12-month period commencing on the date on which he first completes an Hour
of Employment, his Computation Period shall then shift to the Plan Year in which
occurs the first anniversary of the date on which he first completes an Hour of
Employment. Thereafter, the Employee's Computation Periods shall be succeeding
Plan Years.
8.02 VESTING SERVICE. For purposes of determining an Employee's
Nonforfeitable Interest in his Account balance, an Employee shall receive credit
for Vesting Service commencing on the date the Employee first performs an Hour
of Service and ending on his Severance From Service Date. If an Employee Xxxxxx
Service he shall recommence earning Vesting Service when he again performs an
Hour of Service. If an Employee performs an Hour of Service within 12 months
after he Xxxxxx Service, the intervening Period of Severance shall be counted as
a Period of Service for vesting purposes. Subject to Section 8.03, when
determining an Employee's Vesting Service, all Periods of Service, whether or
not completed consecutively, shall be aggregated. In aggregating Vesting
Service, 365 days of Vesting Service shall be counted as one year of Vesting
Service. No fractional years shall be counted for purposes of vesting.
8.03 DISREGARD OF CERTAIN SERVICE. If an Employee incurs a Separation From
Service at a time when he does not have a Nonforfeitable Interest in a portion
of his Account balance and his Period of Severance continues for a continuous
period of five years or more, the Period of Service completed by the Employee
before the Period of Severance shall not be taken into account for Vesting
Service purposes if his Period of Severance equals or exceeds his Period of
Service, whether or not consecutive, completed before the Period of Severance.
8.04 SPECIAL RULES FOR MATERNITY OR PATERNITY ABSENCES. Except as
specified below, the period of time between (a) the first anniversary of the
first day of a Maternity or Paternity Absence of an Employee and (b) the second
anniversary of the first day of the absence shall not be counted as a Period of
Severance or as Eligibility Service or Vesting Service. However, if the Employee
returns to active employment with an Affiliated Employer prior to the expiration
of twelve months following the earlier of (a) the date of his Separation From
Service or (b) the second anniversary of the first day of his Maternity or
Paternity Absence, he shall be granted Eligibility Service and Vesting Service
for the entire period of his Maternity or Paternity Absence.
VIII-1
8.05 DEFINITION OF HOUR OF EMPLOYMENT. An Hour of Employment for purposes
of the Plan shall be each hour (a) for which an Employee is either directly or
indirectly paid or entitled to payment by the Affiliated Employer for the
performance of duties; (b) for which an Employee is either directly or
indirectly paid or entitled to payment by the Affiliated Employer on account of
a period of time during which no duties are performed (irrespective of whether
the employment relationship has terminated) due to vacation, holiday, illness,
incapacity (including Disability), layoff, jury duty, military duty or leave of
absence; or (c) for which back pay, irrespective of mitigation of damages, is
either awarded or agreed to by the Affiliated Employer; provided, however, that
the same Hours of Employment shall not be credited both under clause (a) or
clause (b) and this clause (c). Solely for purposes of clause (b) of the
preceding sentence, (1) no more than 501 Hours of Employment shall be credited
to an Employee on account of any single continuous period during which the
Employee performs no duties (whether or not such period occurs in a single
computation period); (2) Hours of Employment shall not be credited if payment
therefor is made or due under a plan maintained solely for the purpose of
complying with applicable workmen's compensation, or unemployment compensation
or disability insurance laws; and (3) Hours of Employment shall not be credited
for a payment which solely reimburses an Employee for medical or
medically-related expenses incurred by the Employee. The number of Hours of
Employment to be credited with respect to a payment which is made or due on
account of a period during which an Employee performs no duties shall be
determined with reference to whether or not a payment is calculated on the basis
of units of time. Except as otherwise provided below, with respect to such a
payment made or due which is calculated on the basis of units of time, the
number of Hours of Employment to be credited shall be the number of regularly
scheduled hours included in the units of time on the basis of which payment is
calculated. With respect to a payment made or due which is not calculated on the
basis of units of time, the number of Hours of Employment to be credited shall
be equal to the amount of the payment divided by the Employee's most recent
hourly rate of compensation before the period during which no duties are
performed. For purposes of the preceding sentence, (a) if an Employee's
compensation is determined on the basis of an hourly rate, such hourly rate
shall be the Employee's most recent hourly rate of compensation, (b) if an
Employee's compensation is determined on the basis of a fixed rate for specified
periods of time other than hours, the Employee's hourly rate of compensation
shall be the Employee's most recent rate of compensation for a specified period
of time divided by the number of hours regularly scheduled for the performance
of duties during such period of time and (c) if an Employee's compensation is
not determined on the basis of a fixed rate for specified periods of time, then
the Employee's hourly rate of compensation shall be the lowest hourly rate of
compensation paid to employees in the same job classification as that of the
Employee or, if no employees in the same job classification have the same hourly
rate, the minimum wage as established from time to time under section 6(a)(1) of
the Fair Labor Standards Act of 1938, as amended. Notwithstanding the above, an
Employee shall not be credited on account of a period during which no duties are
performed with a number of Hours of Employment which is greater than the number
of hours regularly scheduled for the performance of duties during such period.
For purposes of this paragraph, an Employee without a regular work schedule
shall be deemed to regularly work a 40-hour week, eight-hour day, or such other
representative period (determined by the Committee and announced to employees)
which reflects the average hours worked by the employee, or by other employees
in the same job classification, provided the method used to calculate the
average
VIII-2
number of hours worked during such period is consistently applied with respect
to all Employees within the same reasonably defined job classifications.
Except as otherwise provided below, Hours of Employment shall be credited
to the above-described computation period(s) in which duties are performed. With
respect to Hours of Employment for which an Employee is either directly or
indirectly paid or entitled to payment by an Employer on account of a period of
time during which no duties are performed, (a) hours of service credited to the
Employee on account of a payment which is calculated on the basis of units of
time shall be credited to the computation period or periods in which the period
during which no duties are performed occurs, beginning with the first unit of
time to which the payment relates; and (b) Hours of Employment credited to an
Employee by reason of a payment which is not calculated on the basis of units of
time shall be credited to the computation period in which the period during
which no duties are performed occurs, or if the period during which no duties
are performed extends beyond one computation period, such Hours of Employment
shall be allocated between not more than the first two computation periods on
any reasonable basis which is consistently applied with respect to all employees
within the same reasonably defined job classifications. Hours of Employment for
which back pay, irrespective of mitigation of damages, is either awarded or
agreed to by the Employer shall be credited to the computation period or periods
to which the award or agreement for back pay pertains, rather than to the
computation period in which the award, agreement or payment is made. For
purposes of this paragraph, if Hours of Employment are to be credited to an
Employee in connection with a period of no more than 31 days which extends
beyond one computation period, all such hours may be credited to the first or
second computation period provided all Employees within the same reasonably
defined job classifications are consistently treated similarly.
8.06 SERVICE CREDIT REQUIRED BY FEDERAL LAW. An Employee will be granted
credit for Eligibility Service and Vesting Service for time he is not actively
performing services for an Affiliated Employer to the extent required under
federal law. An Employee will be granted credit for Eligibility Service and
Vesting Service for services performed for a predecessor employer to the extent
required by section 414(a) of the Code and Regulations issued thereunder.
8.07 EMPLOYMENT RECORDS CONCLUSIVE. The employment records of the Employer
shall be conclusive for all determinations of Eligibility Service and Vesting
Service.
8.08 CREDIT FOR SERVICE WITH XXXXXXXXX ASSOCIATES, INC. An Employee who
was a participant in the Xxxxxxxxx Associates, Inc. 401(k) Plan shall be granted
credit for Vesting Service for his service earned under the Xxxxxxxxx
Associates, Inc. 401(k) Plan.
VIII-3
ARTICLE IX
FORFEITURES AND RESTORATIONS
9.01 FORFEITURE ON TERMINATION OF PARTICIPATION.
(a) If as a result of his Separation From Service a Participant or
former Participant receives (or is deemed to receive under Section 5.07) a
distribution of his entire Nonforfeitable Interest in his Matching
Contribution Account and his Supplemental Contribution Account not later
than the end of the second Plan Year following the Plan Year in which his
Separation From Service occurs, the remaining amounts credited to his
Matching Contribution Account and his Supplemental Contribution Account
will be immediately forfeited upon the distribution.
(b) If a Participant's or former Participant's Forfeitable Interest
is not forfeited pursuant to Section 9.01(a), his Forfeitable Interest in
amounts credited to his Matching Contribution Account and his Supplemental
Contribution Account will be permanently forfeited (with no right of
reinstatement under Section 9.02) on the later of the date of his
Separation From Service or the date on which he has incurred a Period of
Severance of five consecutive years.
9.02 RESTORATION OF FORFEITED AMOUNTS. If an Employee who forfeited any
portion of amount credited to his Matching Contribution Account and his
Supplemental Contribution Account pursuant to the provisions of Section 9.01(a)
subsequently performs an Hour of Service and is employed in a classification of
employees that is eligible to participate in the Plan (determined under Article
II), then the following provisions shall apply:
(a) Repayment Requirement. The Employee's Matching Contribution
Account and Supplemental Contribution Account balances shall be restored
if he repays to the Trustee the full amount of any distribution from his
Matching Contribution Account and his Supplemental Contribution Account
with respect to which the forfeiture arose prior to the earlier of (1) the
date on which he incurs a Period of Severance of five years commencing
after his distribution, or (2) the fifth anniversary of the first date on
which the Participant subsequently performs his first Hour of Service
after his Separation From Service. A person who is deemed to have received
a distribution under Section 6.02 (because he had no Nonforfeitable
Interest in amounts credited to his Matching Contribution Account and his
Supplemental Contribution Account) will be deemed to have repaid amounts
credited to his Matching Contribution Account and his Supplemental
Contribution Account upon his reemployment if he is reemployed before the
earlier of the dates specified in clauses (1) and (2) in the preceding
sentence. An Employee who does not resume employment in a classification
of employees that is eligible to participate in the Plan (determined under
Article II) prior to the repayment deadline specified above shall not have
his Matching Contribution Account and Supplemental Contribution Account
balances restored.
(b) Amount Restored. The amount to be restored under the preceding
provisions of this Section 9.02 shall be the dollar value of the
Participant's Matching
IX-1
Contribution Account and Supplemental Contribution Account balances, both
the amount distributed and the amount forfeited. The Participant's
Matching Contribution Account and Supplemental Contribution Account
balances shall be restored as soon as administratively practicable after
the later of the date the Participant first performs an Hour of Service
after his Separation From Service or the date on which any required
repayment is completed. No distribution shall be made to a Participant as
a result of a prior Separation From Service after the restoration of such
account balances has been effectuated.
(c) No Other Basis for Restoration. Except as otherwise provided
above, a Participant's or former Participant's Account balance shall not
be restored after it has been forfeited pursuant to Section 9.01.
9.03 FORFEITURES BY LOST PARTICIPANTS OR BENEFICIARIES. If a person who is
entitled to a distribution cannot be located during a reasonable search after
the Trustee has initially attempted making payment, his Account balance shall be
forfeited. However, if at any time prior to the termination of the Plan and the
complete distribution of the Trust Fund, the missing former Participant or
Beneficiary files a claim with the Committee for the forfeited Account balance,
that Account balance shall be reinstated (without adjustment for income and
losses during the forfeited period) effective as of the date of the receipt of
the claim.
IX-2
ARTICLE X
INVESTMENT ELECTIONS
10.01 INVESTMENT FUNDS ESTABLISHED. It is contemplated that the assets of
the Plan shall be invested in such categories of assets as may be determined
from time to time by the Committee and announced and made available on an equal
basis to all Participants or former Participants. In accordance with procedures
established by the Committee, a Participant or former Participant may designate
the percentage of his Matching Contribution Account, QNEC Account, Rollover
Contribution Account and Salary Deferral Contribution Account to be invested in
each investment fund available under the Plan. To the extent required under
procedures established by the Committee, a Participant's or former Participant's
Matching Contribution Account, Supplemental Contribution Account and/or QNEC
Account must be invested in the Company Stock fund established for the Plan.
10.02 ELECTION PROCEDURES ESTABLISHED. The Committee shall, from time to
time, establish rules to be applied in a nondiscriminatory manner as to all
matters relating to the administration of the investment of funds including, but
not limited to, the following:
(a) the percentage of a Participant's or former Participant's
Account as it exists, from time to time, that may be transferred from one
fund to another and the limitations based on amounts, percentages, time,
or frequency, if any, on such transfers;
(b) the percentage of a Participant's or former Participant's future
contributions, when allocated to his Account, that may be invested in any
one or more funds and the limitations based upon amounts, percentages,
time, or frequency, if any, on such investments in various funds;
(c) the procedures for making investment elections and changing
existing investment elections;
(d) the period of notice required for making investment elections
and changing existing investment elections;
(e) the handling of income and change of value in funds when funds
are in the process of being transferred between investment funds and to
investment funds; and
(f) all other matters necessary to permit the orderly operation of
investment funds within the Plan.
When the Committee changes any previous applicable rule, it shall state the
effective time of the change and the procedures for complying with any such
change. Any change shall remain effective until such date as stated in the
change, or if none is stated, then until revoked or changed in a like manner.
X-1
ARTICLE XI
INVESTMENTS IN COMPANY STOCK
11.01 VOTING OF COMPANY STOCK. Each Participant, former Participant and
Beneficiary with an interest in Company Stock held in the Trust shall have the
right to direct the manner in which the Trustee is to vote the number of shares
of the Company Stock reflecting such Participant's or former Participant's or
Beneficiary's proportional interest in the Company Stock held in the Trust (both
vested and unvested). Directions from a Participant, former Participant or
Beneficiary to the Trustee concerning the voting of the Company Stock shall be
communicated in writing, or by mailgram or similar means to the Trustee or to
its designated agent. These individual directions shall be held in confidence
and shall not be divulged to the Employer, or any officer or employee thereof,
or any other person. Upon its receipt of the directions the Trustee shall vote
the shares of the Company Stock held in the Trust as directed by the
Participant, former Participant or Beneficiary. The Trustee shall vote shares of
the Company Stock reflecting the Participant's, former Participant's or
Beneficiary's proportional interest in the Company Stock held in the Trust (both
vested and unvested) for which it has received no directions from him in the
same proportion as it votes those shares for which it received voting directions
from Participants, former Participants and Beneficiaries. The Trustee shall vote
shares of the Company Stock not credited to Participants', former Participants'
or Beneficiaries' accounts for which it received voting directions from
Participants, former Participants or Beneficiaries.
11.02 TENDER OFFERS. Each Participant, former Participant and Beneficiary
shall have the right to direct the Trustee to tender or not to tender some or
all of the shares of the Company Stock reflecting his proportional interest in
the Company Stock held in the Trust (both vested and unvested). Directions from
a Participant, former Participant or Beneficiary to the Trustee concerning the
tender of the Company Stock shall be communicated in writing, or by mailgram or
such similar means as is agreed upon by the Trustee or its agent and the
Sponsor. These directions shall be held in confidence and shall not be divulged
to the Employer, or any officer or employee thereof, or any other person except
to the extent that the consequences of such directions are reflected in reports
regularly communicated to any such persons in the ordinary course of the
performance of the Trustee's or its agent's services. Upon its receipt of the
directions, the Trustee shall tender or not tender shares of Company Stock as
directed by the Participant, former Participant or Beneficiary. To the extent
that Participants, former Participants and Beneficiaries fail to affirmatively
direct the Trustee or fail to issue valid directions to the Trustee to tender
shares of the Company Stock credited to their accounts, they will be deemed to
have instructed the Trustee not to tender those shares. Accordingly, the Trustee
shall not tender shares of Company Stock credited to a Participant's, former
Participant's or Beneficiary's accounts for which it has received no directions
or invalid directions from him.
The Trustee shall tender that number of shares of the Company Stock not
credited to Participants', former Participants' and Beneficiaries' accounts
which is determined by multiplying the total number of shares of the Company
Stock not credited to Participants', former Participants' and Beneficiaries'
accounts by a fraction of which the numerator is the number of shares of the
Company Stock credited to Participants', former Participants' and Beneficiaries'
accounts for which the Trustee has received valid directions from Participants,
XI-1
former Participants and Beneficiaries to tender (which directions have not been
withdrawn as of the date of this determination) and of which the denominator is
the total number of shares of the Company Stock credited to Participants',
former Participants' and Beneficiaries' accounts.
A Participant, former Participant, or Beneficiary who has directed the
Trustee to tender some or all of the shares of the Company Stock credited to his
accounts may, at any time prior to the tender offer withdrawal date, direct the
Trustee to withdraw some or all of the tendered shares. A Participant, former
Participant or Beneficiary shall not be limited as to the number of directions
to tender or withdraw that he may give to the Client Service Agent.
A direction by a Participant, former Participant or Beneficiary to tender
shares of the Company Stock reflecting his proportional interest in the Company
Stock held in the Trust shall not be considered a written election under the
Plan by him to withdraw, or have distributed, any or all of his withdrawable
shares. The proceeds from the tendered shares shall be credited to the Accounts
of the Participants, former Participants and Beneficiaries in proportion to
their interests in the tendered shares.
11.03 SHARES CREDITED. For all purposes of this Article, the number of
shares of the Company Stock deemed "credited" to a Participant's, former
Participant's or Beneficiary's accounts as of the relevant date (the record date
or the date specified in the tender offer) shall be calculated by reference to
the number of shares reflected on the books of the transfer agent as of the
relevant date. In the case of a tender offer, the number of shares credited
shall be determined as of a date as close as administratively feasible to the
relevant date.
11.04 CONVERSION. All provisions in this Section XI shall also apply to
any securities received as a result of a conversion of the Company Stock.
11.05 AUTHORITY TO INVEST IN COMPANY STOCK. Up to 100 percent of the
Plan's assets may be invested in Company Stock.
XI-2
ARTICLE XII
ADOPTION OF PLAN BY OTHER EMPLOYERS
12.01 ADOPTION PROCEDURE. Any business organization may, with the approval
of the Board, adopt the Plan by:
(a) a certified resolution or consent of the board of directors of
the adopting Employer or an executed adoption instrument (approved by the
board of directors of the adopting Employer) agreeing to be bound as an
Employer by all the terms, conditions and limitations of the Plan except
those, if any, specifically described in the adoption instrument; and
(b) providing all information required by the Committee and the
Trustee.
12.02 NO JOINT VENTURE IMPLIED. The document which evidences the adoption
of the Plan by an Employer shall become a part of the Plan. However, neither the
adoption of the Plan and the Trust by an Employer nor any act performed by it in
relation to the Plan and the Trust shall ever create a joint venture or
partnership relation between it and any other Employer.
12.03 ALL TRUST ASSETS AVAILABLE TO PAY ALL BENEFITS. The Accounts of
Participants and former Participants employed by the Employers that adopt the
Plan shall be commingled for investment purposes. All assets in the Trust shall
be available to pay benefits to all Participants and former Participants
employed by any Employer.
12.04 QUALIFICATION A CONDITION PRECEDENT TO ADOPTION AND CONTINUED
PARTICIPATION. The adoption of the Plan and the Trust by a business organization
is contingent upon and subject to the express condition precedent that the
initial adoption meets all statutory and regulatory requirements for
qualification of the Plan and the exemption of the Trust that are applicable to
it and that the Plan and Trust continue in operation to maintain their qualified
and exempt status. In the event the adoption fails to initially qualify, the
adoption shall fail retroactively for failure to meet the condition precedent
and the portion of the Trust assets applicable to the adoption shall be
immediately returned to the adopting business organization and the adoption
shall be void ab initio. In the event the adoption as to a given business
organization later becomes disqualified and loses its exemption for any reason,
the adoption shall fail retroactively for failure to meet the condition
precedent and the portion of the Trust assets allocable to the adoption by that
business organization shall be immediately spun off, retroactively as of the
last date for which the Plan qualified, to a separate trust for its sole benefit
and an identical but separate Plan shall be created, retroactively effective as
of the last date the Plan as adopted by that business organization qualified,
for the benefit of the Participants and former Participants covered by that
adoption.
XII-1
ARTICLE XIII
AMENDMENT AND TERMINATION
13.01 RIGHT TO AMEND AND LIMITATIONS THEREON. The Sponsor has the sole
right to amend the Plan. An amendment may be made by a resolution of the Board,
a resolution of the Compensation Committee of the Board, or by an instrument in
writing executed by an authorized officer of the Sponsor. The amendment must
describe the nature of the amendment and its effective date. No amendment shall:
(a) vest in an Employer any interest in the Trust;
(b) cause or permit the Trust assets to be diverted to any purpose
other than the exclusive benefit of the present or future Participants,
former Participants and their Beneficiaries except under the circumstances
described in Section 3.11;
(c) decrease the Account of any Participant or former Participant,
or eliminate an optional form of payment in violation of section 411(d)(6)
of the Code;
(d) increase substantially the duties or liabilities of the Trustee
without its written consent; or
(e) change the vesting schedule to one which would result in the
Participant's or former Participant's Nonforfeitable Interest in amounts
credited to his Account (determined as of the later of the date of the
adoption of the amendment or of the effective date of the amendment) being
less than his Nonforfeitable Interest computed under the Plan without
regard to the amendment. If the Plan's vesting schedule is amended, if the
Plan is amended in any other way that affects the computation of the
Participant's or former Participant's Nonforfeitable Interest, or if the
Plan is deemed amended by an automatic change to or from a top-heavy
vesting schedule, each Participant or former Participant who has earned at
least three years of Vesting Service as of the date of the amendment or
change shall have his Nonforfeitable Interest computed under the Plan
without regard to the amendment or the change if that results in a higher
Nonforfeitable Interest.
Each Employer shall be deemed to have adopted any amendment made by the
Sponsor unless the Employer notifies the Committee of its rejection in writing
within 30 days after it receives a copy of the amendment. A rejection shall
constitute a withdrawal from the Plan by that Employer unless the Sponsor
acquiesces to the rejection.
13.02 MANDATORY AMENDMENTS. The Contributions of each Employer to the Plan
are intended to be:
(a) deductible under the applicable provisions of the Code;
(b) except as otherwise prescribed by applicable law, exempt from
the Federal Social Security Act;
XIII-1
(c) except as otherwise prescribed by applicable law, exempt from
withholding under the Code; and
(d) excludable from any Employee's regular rate of pay, as that term
is defined under the Fair Labor Standards Act of 1938, as amended.
The Sponsor shall make any amendment necessary to carry out this
intention, and it may be made retroactively.
13.03 WITHDRAWAL OF EMPLOYER UPON ITS REJECTION OF AN AMENDMENT. An
Employer may withdraw from the Plan and the Trust if the Sponsor does not
acquiesce in the Employer's rejection of an amendment or by giving written
notice of its intent to withdraw to the Committee. The Committee shall then
determine the portion of the Trust assets that is attributable to the
Participants and former Participants employed by the withdrawing Employer and
shall notify the Trustee to segregate and transfer those assets to the successor
trustee when it receives a designation of the successor from the withdrawing
Employer.
The determination of the Committee, in its sole discretion, of the portion
of the Trust assets that is attributable to the Participants and former
Participants employed by the withdrawing Employer shall be final and binding
upon all parties; and, the Trustee's transfer of those assets to the designated
successor Trustee shall relieve the Trustee of any further obligation, liability
or duty to the withdrawing Employer, the Participants and former Participants
employed by that Employer and their Beneficiaries, and the successor trustee.
13.04 TERMINATION OF PARTICIPATION IN THE PLAN. An Employer may terminate
its participation in the Plan by executing and delivering to the Sponsor a
notice of termination of participation which specifies the date of the
termination of participation.
13.05 TERMINATION OF PLAN. The Sponsor may completely terminate the Plan
and the Trust with respect to all Employers by executing and delivering to the
Committee and the Trustee, a notice of termination which specifies the date of
termination.
13.06 PARTIAL OR COMPLETE TERMINATION OR COMPLETE DISCONTINUANCE OF
CONTRIBUTIONS. Without regard to any other provision of the Plan, if there is a
partial or total termination of the Plan or there is a complete discontinuance
of the Employer's Contributions, each of the affected Participants and former
Participants shall immediately have a 100 percent Nonforfeitable Interest in his
Account as of the end of the last Plan Year for which a substantial Employer
Contribution was made and in any amounts later allocated to his Account. If the
Employer then resumes making substantial Contributions at any time, the
appropriate vesting schedule shall again apply to all amounts allocated to each
affected Participant's and former Participant's Account beginning with the Plan
Year for which they were resumed.
XIII-2
ARTICLE XIV
MISCELLANEOUS
14.01 PLAN NOT AN EMPLOYMENT CONTRACT. The maintenance of the Plan and the
Trust is not a contract between any Employer and its Employees which gives any
Employee the right to be retained in its employment. Likewise, it is not
intended to interfere with the rights of any Employer to discharge any Employee
at any time or to interfere with the Employee's right to terminate his
employment at any time.
14.02 BENEFITS PROVIDED SOLELY FROM TRUST. All benefits payable under the
Plan shall be paid or provided for solely from the Trust. No Employer assumes
any liability or responsibility to pay any benefit provided by the Plan.
14.03 ASSIGNMENTS PROHIBITED. No principal or income payable or to become
payable from the Trust shall be subject to anticipation or assignment by a
Participant, former Participant or Beneficiary to attachment by, interference
with, or control of any creditor of a Participant, former Participant or
Beneficiary; or to being taken or reached by any legal or equitable process in
satisfaction of any debt or liability of a Participant, former Participant or
Beneficiary prior to its actual receipt by the Participant, former Participant
or Beneficiary. Any attempted conveyance, transfer, assignment, mortgage,
pledge, or encumbrance of the Trust, any part of it, or any interest in it by a
Participant, former Participant or Beneficiary prior to distribution shall be
void, whether that conveyance, transfer, assignment, mortgage, pledge, or
encumbrance is intended to take place or become effective before or after any
distribution of Trust assets or the termination of the Trust itself. The Trustee
shall never under any circumstances be required to recognize any conveyance,
transfer, assignment, mortgage, pledge or encumbrance by a Participant, former
Participant or Beneficiary of the Trust, any part of it, or any interest in it,
or to pay any money or thing of value to any creditor or assignee of a
Participant, former Participant or Beneficiary for any cause whatsoever. These
prohibitions against the alienation of a Participant's or former Participant's
Account shall not apply to a Qualified Domestic Relations Order or to a
voluntary revocable assignment of benefits not in excess of ten percent of the
amount of any payment from the Plan if such assignment complies with Regulations
issued under section 401(a)(13) of the Code. Further, effective for judgments,
orders and decrees issued, and settlement agreements entered into, on or after
August 5, 1997, these prohibitions shall not apply to any offset of a
Participant's or former Participant's benefit under the Plan against an amount
that the Participant or former Participant is ordered or required to pay to the
Plan if (a) the order or requirement to pay (1) arises under a judgment of
conviction for a crime involving the Plan, (2) arises under a civil judgment
(including a consent order or decree) entered by a court in an action in
connection with an alleged violation of part 4 of subtitle B of title I of
ERISA, or (3) is pursuant to a settlement agreement between the Secretary of
Labor and the Participant or former Participant in connection with an alleged
violation of part 4 of subtitle B of title I of ERISA by a fiduciary or any
other person and (b) the judgment, order, decree or settlement agreement
expressly provides for the offset of all or a part of the amount ordered or
required to be paid to the Plan against the Participant's or former
Participant's benefits provided under the Plan.
XIV-1
14.04 REQUIREMENTS UPON MERGER OR CONSOLIDATION OF PLANS. The Plan shall
not merge or consolidate with or transfer any assets or liabilities to any other
plan unless each Participant and former Participant would receive a benefit
immediately after the merger, consolidation, or transfer which is equal to or
greater than the benefit he would have been entitled to receive immediately
before the merger, consolidation, or transfer (if the Plan had then terminated).
14.05 GENDER OF WORDS USED. If the context requires it, words of one
gender when used in the Plan shall include the other gender, and words used in
the singular or plural shall include the other.
14.06 SEVERABILITY. Each provision of this Agreement may be severed. If
any provision is determined to be invalid or unenforceable, that determination
shall not affect the validity or enforceability of any other provision.
14.07 REEMPLOYED VETERANS. Effective January 12, 1994, the requirements of
the Uniformed Services Employment and Reemployment Rights Act of 1994 will be
complied with in the operation of the Plan in the manner permitted under section
414(u) of the Code. Effective January 12, 1994, notwithstanding any other
provision of the Plan, Contributions, Eligibility Service and Vesting Service
with respect to a person who has engaged in qualified military service will be
provided in accordance with section 414(u) of the Code.
14.08 LIMITATIONS ON LEGAL ACTIONS. No person may bring an action
pertaining to the Plan or the Trust until he has exhausted his administrative
claims and appeal remedies identified in Section 5.11. Further, no person may
bring an action pertaining to a claim for benefits under the Plan or the Trust
following 180 days after the Committee's final denial of his claim for benefits.
14.09 GOVERNING LAW. The provisions of the Plan shall be construed,
administered, and governed under the laws of the United States unless the
specific matter in question is governed by state law in which event the laws of
the State of
Texas shall apply.
XIV-2
IN WITNESS WHEREOF,
Xanser Corporation has caused this Agreement to be
executed this 21st day of February, 2002, in multiple counterparts, each of
which shall be deemed to be an original, to be effective the 1st day of January,
1998, except for those provisions which have an earlier effective date provided
by law, or as otherwise provided under applicable provisions of the Plan.
XANSER CORPORATION
By: /s/ XXXXXXX X. XXXXXXX
-------------------------------------
Title: Vice President
----------------------------------
APPENDIX A
LIMITATIONS ON CONTRIBUTIONS AND ALLOCATIONS
PART A.1 DEFINITIONS
DEFINITIONS. As used herein the following words and phrases have the
meaning attributed to them below:
A.1.1 "ACTUAL CONTRIBUTION RATIO" means the ratio of Section 401(m)
Contributions actually paid into the Trust on behalf of an Employee for a Plan
Year to the Employee's Annual Compensation for the same Plan Year. For this
purpose, Annual Compensation for any portion of the Plan Year in which the
Employee was not an eligible Employee (as defined in Section A.2.4) will not be
taken into account.
A.1.2 "ACTUAL DEFERRAL PERCENTAGE" means, for a specified group of
Employees for a Plan Year, the average of the ratios (calculated separately for
each Employee in the group) of the amount of Section 401(k) Contributions
actually paid into the Trust on behalf of the Employee for the Plan Year to the
Employee's Annual Compensation for the Plan Year.
A.1.3 "ACTUAL DEFERRAL RATIO" means the ratio of Section 401(k)
Contributions actually paid into the Trust on behalf of an Employee for a Plan
Year to the Employee's Annual Compensation for the same Plan Year. For this
purpose, Annual Compensation for any portion of the Plan Year in which the
Employee was not an eligible Employee (as defined in Section A.2.3) will not be
taken into account.
A.1.4 "ANNUAL ADDITIONS" means the sum of the following amounts credited
on behalf of a Participant for the Limitation Year: (a) Employer contributions
excluding Catch-up Salary Deferral Contributions and including Salary Deferral
Contributions, (b) Employee after-tax contributions and (c) forfeitures. For
this purpose, Employee contributions are determined without regard to any
rollover contributions (as defined in sections 402(c), 403(a)(4), 403(b)(8),
408(d)(3) and 457(e)(16) of the Code without regard to employee contributions to
a simplified employee pension which are excludable from gross income under
section 408(k)(6) of the Code). Excess 401(k) Contributions for a Plan Year are
treated as Annual Additions for that Plan Year even if they are corrected
through distribution. Excess Deferrals that are timely distributed as set forth
in Section A.3.1 will not be treated as Annual Additions.
A.1.5 "CONTRIBUTION PERCENTAGE" means, for a specified group of Employees
for a Plan Year, the average of the ratios (calculated separately for each
Employee in the group) of the amount of Section 401(m) Contributions actually
paid into the Trust on behalf of the Employee for the Plan Year to the
Employee's Annual Compensation for the Plan Year.
A.1.6 "CURRENT PLAN YEAR" means the Plan Year for which the applicable
discrimination test under section 401(k) or section 401(m) is being performed.
A.1.7 "EXCESS AGGREGATE 401(M) CONTRIBUTIONS" means, with respect to any
Plan Year, the excess of (a) the aggregate amount of Section 401(m)
Contributions actually paid into the Trust on behalf of Highly Compensated
Employees for the Plan Year over (b) the maximum
A-1
amount of those contributions permitted under the limitations set out in the
first sentence of Section A.2.3.
A.1.8 "EXCESS AMOUNT" means the excess of the Annual Additions credited to
the Participant's Account for the Limitation Year over the Maximum Permissible
Amount.
A.1.9 "EXCESS DEFERRAL" means the aggregate amount of a Participant's
Salary Deferral Contributions and other elective deferral contributions
described in Section A.2.1 in excess of the limitation specified in Section
A.2.1, or the aggregate amount of the Participant's Salary Deferral
Contributions that the Participant timely notifies the Committee under Section
A.2.1 exceeds the limitation in section 402(g) of the Code.
A.1.10 "EXCESS 401(K) CONTRIBUTIONS" means, with respect to any Plan Year,
the excess of (a) the aggregate amount of Section 401(k) Contributions actually
paid to the Trustee on behalf of Highly Compensated Employees for the Plan Year
over (b) the maximum amount of those contributions permitted under the
limitations set out in the first sentence of Section A.2.2.
A.1.11 "LIMITATION YEAR" means the calendar year. All qualified plans
maintained by any Affiliated Employer must use the same Limitation Year. If the
Limitation Year is changed to a different 12-consecutive month period, the new
Limitation Year must begin on a date within the Limitation Year in which the
amendment is made.
A.1.12 "MAXIMUM PERMISSIBLE AMOUNT" means, for Limitation Years that
commence prior to January 1, 2002, the lesser of (a) $30,000.00 as adjusted by
the Secretary of Treasury for increases in the cost of living, or (b) 25 percent
of the Participant's Annual Compensation for the Limitation Year. "Maximum
Permissible Amount" means, for Limitation Years that commence on or after
January 1, 2002, the lesser of (a) $40,000.00 as adjusted by the Secretary of
Treasury for increases in the cost of living or (b) 100 percent of the
Participant's Annual Compensation for the Limitation Year. The Annual
Compensation limitation referred to in clauses (b) of the immediately preceding
sentences shall not apply to any contribution for medical benefits (within the
meaning of section 401(h) or section 419A(f)(2) of the Code) that is otherwise
treated as an Annual Addition under section 415(l)(1) or section 419A(d)(2) of
the Code. If a short Limitation Year is created because of an amendment changing
the Limitation Year to a different 12-consecutive month period, the Maximum
Permissible Amount shall not exceed the dollar limitation in effect under
section 415(c)(1)(A) of the Code multiplied by a fraction, the numerator of
which is the number of months in the short Limitation Year, and the denominator
of which is 12.
A.1.13 "PRECEDING PLAN YEAR" means the Plan Year immediately preceding the
Current Plan Year.
A.1.14 "SECTION 401(K) CONTRIBUTIONS" means the sum of Salary Deferral
Contributions made on behalf of the Participant during the Plan Year, and QNECs
that the Employer elects to have treated as section 401(k) Contributions
pursuant to section 401(k)(3)(d)(ii) of the Code.
A.1.15 "SECTION 401(M) CONTRIBUTIONS" means the sum of Matching
Contributions made on behalf of the Participant during the Plan Year and other
amounts that the Employer elects to have treated as Section 401(m) Contributions
pursuant to section 401(m)(3)(B) of the Code.
A-2
However, effective for Plan Years that commence prior to January 1, 2002,
Matching Contributions and Salary Deferral Contributions that the Employer could
otherwise elect to have treated as Section 401(m) Contributions are not Section
401(m) Contributions to the extent that they are used to enable the Plan to
satisfy the minimum contribution requirements of section 416 of the Code.
PART A.2 LIMITATIONS ON CONTRIBUTIONS
A.2.1 DOLLAR LIMITATION UPON SALARY DEFERRAL CONTRIBUTIONS. The maximum
Salary Deferral Contribution that a Participant may elect to have made on his
behalf during a calendar year may not, when added to his elective deferrals
under other plans or arrangements which are both (1) described in sections
401(k), 403(b), 408(k) and 408(p)(2) of the Code and (2) either (a) maintained
by an Affiliated Employer or (b) maintained by an entity that is not an
Affiliated Employer but the Participant satisfies the notification requirements
of this Section A.2.1, exceed the amount of the dollar limitation in effect
under section 402(g)(1) of the Code for the Participant's taxable year beginning
in such calendar year. The Employer shall notify the Committee no later than
April 1 following the calendar year in which Excess Deferrals are made that
Excess Deferrals have been made on behalf of a Participant taking into account
only elective deferrals to plans maintained by Affiliated Employers. The
Participant may notify the Committee, in writing, no later than April 1
following the calendar year in which the deferrals were made, of the amount of
deferrals the Participant made to the Plan in excess of the limitation of
section 402(g) of the Code, taking into account the Plan and plans that are not
maintained by Affiliated Employers. Such amount shall be treated as an Excess
Deferral. For purposes of applying the requirements of Section A.2.2, Excess
Deferrals shall not be disregarded merely because they are Excess Deferrals or
because they are distributed in accordance with Section A.3.1. However, Excess
Deferrals made to the Plan on behalf of Non-Highly Compensated Employees in
violation of this Section A.2.1 are not to be taken into account under Section
A.2.2.
A.2.2 LIMITATION BASED UPON ACTUAL DEFERRAL PERCENTAGE. Effective for Plan
Years commencing on or after January 1, 1997, the Actual Deferral Percentage for
eligible Highly Compensated Employees for the Current Plan Year must bear a
relationship to the Actual Deferral Percentage for all other eligible Employees
for (a) the Preceding Plan Year in the case of testing for Plan Years commencing
on or after January 1, 2000, or (b) the Current Plan Year in the case of testing
for Plan Years commencing prior to January 1, 2000, which meets either of the
following tests:
(1) the Actual Deferral Percentage of the eligible Highly
Compensated Employees is not more than the Actual Deferral Percentage of
all other eligible Employees multiplied by 1.25; or
(2) the excess of the Actual Deferral Percentage of the eligible
Highly Compensated Employees over that of all other eligible Employees is
not more than two percentage points, and the Actual Deferral Percentage of
the eligible Highly Compensated Employees is not more than the Actual
Deferral Percentage of all other eligible Employees multiplied by two.
A-3
For purposes of this test, an eligible Employee is an Employee who is
directly or indirectly eligible to make Salary Deferral Contributions for all or
part of the Current Plan Year. A person who is suspended from making Salary
Deferral Contributions because he has made a withdrawal is an eligible Employee.
If no Salary Deferral Contributions are made for an eligible Employee, the
Actual Deferral Ratio that shall be included for him in determining the Actual
Deferral Percentage is zero. If the Plan and any other plan or plans which
include cash or deferred arrangements are considered as one plan for purposes of
section 401(a)(4) or 410(b) of the Code, the cash or deferred arrangements
included in the Plan and the other plans shall be treated as one plan for
purposes of this Section. If any Participant who is a Highly Compensated
Employee is a participant in any other cash or deferred arrangements of the
Employer, when determining the deferral percentage of such Participant, all such
cash or deferred arrangements are treated as one cash or deferred arrangement.
Notwithstanding the foregoing, effective for Plan Years commencing on or
after January 1, 1998, an individual who is not a Highly Compensated Employee
and who has not satisfied the minimum age and service requirements of Section
410(a)(1)(A) will not be treated as an eligible Employee for purposes of this
Section A.2.2 if the Sponsor elects to apply section 410(b)(4)(3) of the Code in
determining whether the Plan meets the requirements of section 401(k)(3) of the
Code.
A Salary Deferral Contribution will be taken into account under the Actual
Deferral Percentage test of section 401(k) of the Code and this Section for a
Plan Year only if it relates to Considered Compensation that either would have
been received by the Employee in the Plan Year (but for the deferral election)
or is attributable to services performed by the Employee in the Plan Year and
would have been received by the Employee within 2 1/2 months after the close of
the Plan Year (but for the deferral election). In addition, a Section 401(k)
Contribution will be taken into account under the Actual Deferral Percentage
test of section 401(k) of the Code and this Section for a Plan Year only if it
is allocated to an Employee as of a date within that Plan Year. For this purpose
a Section 401(k) Contribution is considered allocated as of a date within a Plan
Year if the allocation is not contingent on participation or performance of
services after such date and the Section 401(k) Contribution is actually paid to
the Trust no later than 12 months after the Plan Year to which the Section
401(k) Contribution relates.
Failure to correct Excess 401(k) Contributions by the close of the Plan
Year following the Plan Year for which they were made will cause the Plan's cash
or deferred arrangement to be disqualified for the Plan Year for which the
Excess 401(k) Contributions were made and for all subsequent years during which
they remain in the Trust. Also, the Employer will be liable for a ten percent
excise tax on the amount of Excess 401(k) Contributions unless they are
corrected within 2 1/2 months after the close of the Plan Year for which they
were made.
For the Plan Year that commences on January 1, 2000, the Actual Deferral
Percentage of persons who are not Highly Compensated Employees will be
determined by taking into account only (1) Salary Deferral Contributions for
such persons that were taken into account for purposes of the actual deferral
percentage test set forth in section 401(k) of the Code and this Section A.2.2
for the Plan Year that commenced on January 1, 1999 and (2) QNECS that were
allocated to the Accounts of such persons for the Plan Year that commenced on
January 1, 1999, but that were not used to satisfy the actual deferral
percentage test set forth in section 401(k) of the Code
A-4
and this Section A.2.2 or the actual contribution percentage test set forth in
section 401(m) of the Code and Section A.2.3 for the Plan Year that commences on
January 1, 1999.
A.2.3 LIMITATION BASED UPON CONTRIBUTION PERCENTAGE. Effective for Plan
Years commencing on or after January 1, 1997, the Contribution Percentage for
eligible Highly Compensated Employees for the Current Plan Year must bear a
relationship to the Contribution Percentage for all other eligible Employees for
(a) the Preceding Plan Year in the case of testing for Plan Years commencing on
or after January 1, 2000 or (b) the Current Plan Year in the case of testing for
Plan Years commencing prior to January 1, 2000, which meets either of the
following tests:
(1) the Contribution Percentage of the eligible Highly Compensated
Employees is not more than the Contribution Percentage of all other
eligible Employees multiplied by 1.25; or
(2) the excess of the Contribution Percentage of the eligible Highly
Compensated Employees over that of all other eligible Employees is not
more than two percentage points, and the Contribution Percentage of the
eligible Highly Compensated Employees is not more than the Contribution
Percentage of all other eligible Employees multiplied by two.
For purposes of this test an eligible Employee is an Employee who is
directly or indirectly eligible to receive an allocation of Matching
Contributions for all or part of the Plan Year. Except as provided below, an
Employee who would be eligible to receive an allocation of Matching
Contributions but for his election not to participate is an eligible Employee.
An Employee who would be eligible to receive an allocation of Matching
Contributions but for the limitations on his Annual Additions imposed by section
415 of the Code or because he has made a withdrawal is an eligible Employee.
Notwithstanding the foregoing, effective for Plan Years commencing on or
after January 1, 1998, an individual who is not a Highly Compensated Employee
and who has not satisfied the minimum age and service requirements of section
410(a)(1)(A) of the Code will not be treated as an eligible Employee for
purposes of this Section A.2.4 if the Sponsor elects to apply section
410(b)(4)(B) of the Code in determining whether the Plan meets the requirements
of section 401(m)(2) of the Code.
If no Section 401(m) Contributions are made on behalf of an eligible
Employee, the Actual Contribution Ratio that shall be included for him in
determining the Contribution Percentage is zero.
If the Plan and any other plan or plans to which Section 401(m)
Contributions are made are considered as one plan for purposes of section
401(a)(4) or 410(b) of the Code, the Plan and those plans are to be treated as
one plan. The Actual Contribution Ratio of a Highly Compensated Employee who is
eligible to participate in more than one plan of an Affiliated Employer to which
employee or matching contributions are made is calculated by treating all the
plans in which the Employee is eligible to participate as one plan. However,
plans that are not
A-5
permitted to be aggregated under Regulation section 1.410(m)-1(b)(3)(ii) are not
aggregated for this purpose.
A Matching Contribution will be taken into account under this Section for
a Plan Year only if (a) it is allocated to the Employee's Account as of a date
within the Plan Year, (b) it is paid to the Trust no later than the end of the
12-month period beginning after the close of the Plan Year, and (c) it is made
on behalf of an Employee on account of his Salary Deferral Contributions for the
Plan Year.
At the election of the Employer, a Participant's Salary Deferral
Contributions, and XXXXx made on behalf of the Participant during the Plan Year
shall be treated as Section 401(m) Contributions that are Matching Contributions
provided that the conditions set forth in Regulation section 1.401(m)-1(b)(5)
are satisfied. Salary Deferral Contributions may not be treated as Matching
Contributions for purposes of the contribution percentage test set forth in this
Section unless such contributions, including those taken into account for
purposes of the test set forth in this Section, satisfy the actual deferral
percentage test set forth in Section A.2.3. Moreover, Salary Deferral
Contributions and QNECs may not be taken into account for purposes of the test
set forth in this Section to the extent that such contributions are taken into
account in determining whether any other contributions satisfy the actual
deferral percentage test set forth in Section A.2.2. Finally, Salary Deferral
Contributions and QNECs may be taken into account for purposes of the test set
forth in this Section only if they are allocated to the Employee's Account as of
a date within the Plan Year being tested within the meaning of Regulation
section 1.401(k)-1(b)(4).
Failure to correct Excess Aggregate 401(m) Contributions by the close of
the Plan Year following the Plan Year for which they were made will cause the
Plan to fail to be qualified for the Plan Year for which the Excess Aggregate
401(m) Contributions were made and for all subsequent years during which they
remain in the Trust. Also, the Employer will be liable for a ten percent excise
tax on the amount of Excess Aggregate 401(m) Contributions unless they are
corrected within 2 1/2 months after the close of the Plan Year for which they
were made.
For the Plan Year that commences on January 1, 2000, the Contribution
Percentage of persons who are not Highly Compensated Employees will be
determined by taking into account only (a) After-Tax Contributions made on
behalf of those persons during the Plan Year that commenced on January 1, 1999;
(b) Matching Contributions made on behalf of such persons that were taken into
account for purposes of the actual contribution percentage test set forth in
section 401(m) of the Code and this Section A.2.3 for the Plan Year that
commences on January 1, 1999; and (c) QNECS that were allocated to the Accounts
of such persons for the Plan Year that commences on January 1, 1999, but that
were not used to satisfy the actual deferral percentage test set forth in
section 401(k) of the Code and Section A.2.2 or the actual contribution
percentage test set forth in section 401(m) of the Code and this Section A.2.3
for the Plan Year that commences on January 1, 1999.
A.2.4 ADDITIONAL TEST IN THE EVENT OF MULTIPLE USE OF THE ALTERNATIVE
LIMITATION. Effective for Plan Years that commence prior to January 1, 2002, if
the second alternative permitted in Sections A.2.2 and A.2.3 is used for both
the actual deferral percentage test and the contribution percentage test, the
following additional limitation on Salary Deferral Contributions
A-6
shall apply. The Actual Deferral Percentage plus the Contribution Percentage of
the eligible Highly Compensated Employees cannot exceed the greater of (a) or
(b), where
(a) is the sum of:
(1) 1.25 times the greater of the Actual Deferral Percentage
or the Contribution Percentage of the eligible Non-Highly
Compensated Employees for the Preceding Plan Year, and
(2) the lesser of (x) two percentage points plus the lesser of
the Actual Deferral Percentage or the Contribution Percentage of the
eligible Non-Highly Compensated Employees for the preceding Plan
Year or (y) two times the lesser of the Actual Deferral Percentage
or the Contribution Percentage of the group of eligible Non-Highly
Compensated Employees for the Preceding Plan Year; and
(b) is the sum of:
(1) 1.25 times the lesser of the Actual Deferral Percentage or
the Contribution Percentage of the eligible Non-Highly Compensated
Employees for the Preceding Plan Year, and
(2) the lesser of (x) two percentage points plus the greater
of the Actual Deferral Percentage or the Contribution Percentage of
the eligible Non-Highly Compensated Employees for the preceding Plan
Year or (y) two times the greater of the Actual Deferral Percentage
or the Contribution Percentage of the group of eligible Non-Highly
Compensated Employees for the Preceding Plan Year.
PART A.3 CORRECTION PROCEDURES FOR CONTRIBUTIONS IN EXCESS OF LIMITATIONS
A.3.1 EXCESS DEFERRAL FAIL SAFE PROVISION. Excess Deferrals as adjusted by
any earnings or losses, will be distributed from the Plan to the Participant no
later than April 15 following the Participant's taxable year in which the Excess
Deferral was made. The income allocable to the Excess Deferrals for the taxable
year of the Participant shall be determined by multiplying the income for the
taxable year of the Participant allocable to Salary Deferral Contributions by a
fraction. The numerator of the fraction is the amount of the Excess Deferrals
made on behalf of the Participant for the taxable year. The denominator of the
fraction is the Participant's total Salary Deferral Account balance as of the
beginning of the taxable year plus the Participant's Salary Deferral
Contributions for the taxable year.
A.3.2 ACTUAL DEFERRAL PERCENTAGE FAIL SAFE PROVISION. As soon as
practicable after the close of each Plan Year, the Committee shall determine
whether the Actual Deferral Percentage for the Highly Compensated Employees
would exceed the limitation set forth in Section A.2.2. If the limitation would
be exceeded for a Plan Year, before the close of the following Plan Year (a) the
amount of Excess 401(k) Contributions for that Plan Year (and any income
allocable to those contributions as calculated in the specific manner required
by
A-7
Section A.3.5) shall be distributed or (b) the Employer may make a QNEC which it
elects to have treated as a Section 401(k) Contribution.
The amount of Excess 401(k) Contributions to be distributed shall be
determined in the following manner:
First, the Committee will determine the aggregate amount of Excess 401(k)
Contributions as follows. The Committee will determine how much the Actual
Deferral Ratio of the Highly Compensated Employee with the highest Actual
Deferral Ratio would have to be reduced to satisfy the Actual Deferral
Percentage Test or cause such Actual Deferred Ratio to equal the Actual Deferral
Ratio of the Highly Compensated Employee with the next highest Actual Deferred
Ratio. If a lesser reduction would enable the Plan to satisfy the Actual
Deferral Percentage Test, only the lesser reduction may be made. Second, this
process is repeated until the Actual Deferral Percentage Test is satisfied. The
amount of Excess 401(k) Contributions is equal to the sum of these hypothetical
reductions multiplied, in each case, by the Highly Compensated Employee's Annual
Compensation.
Then, effective for Plan Years that commence on or after January 1, 1997,
the total amount of Excess 401(k) Contributions shall be distributed on the
basis of the respective amounts attributable to each Highly Compensated
Employee. The Highly Compensated Employees subject to the actual distribution
are determined using the "dollar leveling method." The Salary Deferral
Contributions of the Highly Compensated Employee with the greatest dollar amount
of Salary Deferral Contributions and other contributions treated as Section
401(k) Contributions for the Plan Year are reduced by the amount required to
cause that Highly Compensated Employee's Salary Deferral Contributions to equal
the dollar amount of the Salary Deferral Contributions and other contributions
treated as Section 401(k) Contributions for the Plan Year of the Highly
Compensated Employee with the next-highest dollar amount. This amount is then
distributed to the Highly Compensated Employee with the highest dollar amount.
However, if a lesser deduction, when added to the total dollar amount already
distributed under this Section A.3.2 would equal the total Excess 401(k)
Contributions, the lesser reduction shall be distributed. This process shall be
continued until the amount of the Excess 401(k) Contributions have been
distributed.
QNEC's will be treated as Section 401(k) Contributions only if: (a) the
conditions described in Regulation section 1.401(k)-1(b)(5) are satisfied and
(b) they are allocated to Participants' Accounts as of a date within that Plan
Year and are actually paid to the Trust no later than the end of the 12-month
period immediately following the Plan Year to which the contributions relate. If
the Employer makes a QNEC that it elects to have treated as a Section 401(k)
Contribution, the Contribution will be in an amount necessary to satisfy the
Actual Deferral Percentage test and will be allocated first to those Non-Highly
Compensated Employees who had the lowest Actual Deferral Ratio. The Excess
401(k) Contributions of Highly Compensated Employees will not be recharacterized
to the extent that the recharacterized amounts would exceed the Contribution
Percentage as determined prior to applying the Contribution Percentage
limitations.
Any distributions of the Excess 401(k) Contributions for any Plan Year are
to be made to Highly Compensated Employees on the basis of the amount of
contributions by, or on behalf of,
A-8
each Highly Compensated Employee. The amount of Excess 401(k) Contributions to
be distributed for any Plan Year must be reduced by any excess Salary Deferral
Contributions previously distributed for the taxable year ending in the same
Plan Year. To the extent that Excess Section 401(k) Contributions are
distributed pursuant to this Section A.3.2, the Matching Contributions made with
respect to those Excess Section 401(k) Contributions shall be forfeited.
A.3.3 CONTRIBUTION PERCENTAGE FAIL SAFE PROVISION. If the limitation set
forth in Section A.2.3 would be exceeded for any Plan Year, any one or more of
the following corrective actions shall be taken before the close of the
following Plan Year as determined by the Committee in its sole discretion: (a)
the amount of the Excess Aggregate 401(m) Contributions for that Plan Year (and
any income allocable to those Contributions as calculated in the manner set
forth in Section A.3.5) shall be forfeited or (b) the Employer may make a QNEC
which it elects to have treated as a Section 401(m) Contribution.
The amount of Excess Aggregate 401(m) Contributions to be distributed
shall be determined in the following manner.
First, the Committee will determine the aggregate amount of Excess
Aggregate 401(m) Contributions as follows: The Committee will determine how much
the Actual Contribution Ratio of the Highly Compensated Employee with the
highest Actual Contribution Ratio would have to be reduced to satisfy the Actual
Contribution Percentage Test or cause such Actual Contribution Ratio to equal
the Actual Contribution Ratio of the Highly Compensated Employee with the
next-highest Actual Contribution Ratio. If a lesser reduction would enable the
Plan to satisfy the Actual Contribution Percentage Test, only this lesser
reduction may be made. Second, this process is repeated until the Actual
Contribution Percentage Test is satisfied. The amount of Excess Aggregate 401(m)
Contributions is equal to the sum of these hypothetical reductions multiplied,
in each case, by the Highly Compensated Employee's Annual Compensation.
Then, effective for Plan Years that commence on or after January 1, 1997,
the total amount of Excess Aggregate 401(m) Contributions shall be forfeited on
the basis of the respective amounts attributable to each Highly Compensated
Employee. The Highly Compensated Employees subject to the forfeitures are
determined using the "dollar leveling method." The Matching Contributions of the
Highly Compensated Employee with the greatest dollar amount of Matching
Contributions and other contributions treated as Section 401(m) Contributions
for the Plan Year are reduced by the amount required to cause that Highly
Compensated Employee's Matching Contributions and other contributions treated as
Section 401(m) Contributions for the Plan Year to equal the dollar amount of
Matching Contributions and other contributions treated as Section 401(m)
Contributions for the Plan Year of the Highly Compensated Employee with the next
highest dollar amount. This amount is then forfeited from the Account of the
Highly Compensated Employee with the highest dollar amount. However, if a lesser
reduction, when added to the total dollar amount already forfeited under this
Section A.3.3., would equal the total Excess Aggregate 401(m) Contributions, the
lesser reduction amount shall be forfeited. This process shall be continued
until the amount of the Excess Aggregate 401(m) Contributions has been
forfeited.
A-9
A.3.4 ALTERNATIVE LIMITATION FAIL SAFE. As soon as practicable after the
close of each Plan Year, the Committee shall determine whether the alternative
limitation would be exceeded. If the limitation would be exceeded for any Plan
Year, before the close of the following Plan Year the Actual Deferral Percentage
or Contribution Percentage of the eligible Highly Compensated Employees, or a
combination of both, shall be reduced by distributions made in the manner
described in the Regulations. These distributions shall be in addition to and
not in lieu of distributions required for Excess 401(k) Contributions and Excess
Aggregate 401(m) Contributions.
A.3.5 INCOME ALLOCABLE TO EXCESS 401(K) CONTRIBUTIONS AND EXCESS AGGREGATE
401(M) CONTRIBUTIONS. The income allocable to Excess 401(k) Contributions for
the Plan Year shall be determined by multiplying the income for the Plan Year
allocable to Section 401(k) Contributions by a fraction. The numerator of the
fraction shall be the amount of Excess 401(k) Contributions made on behalf of
the Participant for the Plan Year. The denominator of the fraction shall be the
Participant's total Account balance attributable to Section 401(k) Contributions
as of the beginning of the Plan Year plus the Participant's Section 401(k)
Contributions for the Plan Year. The income allocable to Excess Aggregate 401(m)
Contributions for a Plan Year shall be determined by multiplying the income for
the Plan Year allocable to Section 401(m) Contributions by a fraction. The
numerator of the fraction shall be the amount of Excess Aggregate 401(m)
Contributions made on behalf of the Participant for the Plan Year. The
denominator of the fraction shall be the Participant's total Account balance
attributable to Section 401(m) Contributions as of the beginning of the Plan
Year plus the Participant's Section 401(m) Contributions for the Plan Year.
PART A.4 LIMITATION ON ALLOCATIONS
A.4.1 BASIC LIMITATION ON ALLOCATIONS. The Annual Additions which may be
credited to a Participant's Account under the Plan for any Limitation Year will
not exceed the Maximum Permissible Amount reduced by the Annual Additions
credited to a Participant's Account for the same Limitation Year under any other
qualified defined contribution plans maintained by any Affiliated Employer. If
the Annual Additions with respect to the Participant under such other qualified
defined contribution plans are less than the Maximum Permissible Amount and the
Employer Contribution that would otherwise be contributed or allocated to the
Participant's Account under the Plan would cause the Annual Additions for the
Limitation Year to exceed this limitation, the amount contributed or allocated
under the Plan will be reduced so that the Annual Additions under all qualified
defined contribution plans maintained by any Affiliated Employer for the
Limitation Year will equal the Maximum Permissible Amount. If the Annual
Additions with respect to the Participant under such other qualified defined
contribution plans in the aggregate are equal to or greater than the Maximum
Permissible Amount, no amount will be contributed or allocated to the
Participant's Account under the Plan for the Limitation Year. Effective as of
January 1, 1987, until January 1, 2000 (the effective date of the repeal of
section 415(e) of the Code), a permanent adjustment shall be made to the defined
contribution fraction for purposes of applying the limitation of section 415(e)
of the Code to the Plan. The adjustment is to permanently subtract from the
defined contribution numerator an amount equal to the product of (a) the sum of
the defined contribution fraction plus the defined benefit fraction as of the
determination date minus one, times (b) the denominator of the defined
contribution fraction as of the determination date. For this purpose, the
determination date is December 31, 1986.
A-10
Both fractions in clauses (a) and (b) above are computed in accordance with
section 415 of the Code as amended by the Tax Reform Act of 1986 and section
1106(i)(3) of the Tax Reform Act of 1986.
A.4.2 ESTIMATION OF MAXIMUM PERMISSIBLE AMOUNT. Prior to determining the
Participant's actual Annual Compensation for the Limitation Year, the Employer
may determine the Maximum Permissible Amount on the basis of a reasonable
estimation of the Participant's Annual Compensation for such Limitation Year,
uniformly determined for all Participants similarly situated. As soon as is
administratively feasible after the end of the Limitation Year, the Maximum
Permissible Amount for the Limitation Year shall be determined on the basis of
the Participant's actual Annual Compensation for such Limitation Year.
A.4.3 ATTRIBUTION OF EXCESS AMOUNTS. If a Participant's Annual Additions
under the Plan and all other qualified defined contribution plans maintained by
an Affiliated Employer result in an Excess Amount, the total Excess Amount shall
be attributed to the Plan.
A.4.4 TREATMENT OF EXCESS AMOUNTS. If an Excess Amount attributed to the
Plan is held or contributed as a result of or because of (a) the allocation of
forfeitures, (b) reasonable error in estimating a Participant's Considered
Compensation, (c) reasonable error in calculating the maximum Salary Deferral
Contribution that may be made with respect to a Participant under section 415 of
the Code or (d) any other facts and circumstances which the Commissioner of
Internal Revenue finds to be justified, the Excess Amount shall be reduced as
follows:
(1) First, the Excess Amount shall be reduced to the extent
necessary by distributing to the Participant all Salary Deferral
Contributions together with their earnings. These distributed amounts are
disregarded for purposes of the testing and limitations contained in this
Appendix A.
(2) Second, if the Participant is still employed by the Employer at
the end of the Limitation Year, then such Excess Amounts shall not be
distributed to the Participant, but shall be reallocated to a suspense
account and shall be reapplied to reduce future Employer Contributions
(including any allocation of forfeitures) under the Plan for such
Participant in the next Limitation Year, and for each succeeding
Limitation Year, if necessary.
(3) If, after application of paragraph (b) of this Section, an
Excess Amount still exists, and the Participant is not still employed by
the Employer at the end of the Limitation Year, then such Excess Amounts
in the Participant's Account shall not be distributed to the Participant,
but shall be reallocated to a suspense account and shall be reapplied to
reduce future Employer Contributions (including allocation of any
forfeitures), for all remaining Participants in the next Limitation Year
and each succeeding Limitation Year if necessary.
(4) If a suspense account is in existence at any time during the
Limitation Year pursuant to this Section, it will not participate in the
allocation of the Trust's investment gains and losses. If a suspense
account is in existence at any time during a particular Limitation Year,
all amounts in the suspense account must be allocated and
A-11
reallocated to Participants' Accounts before any Employer Contribution may
be made to the Plan for that Limitation Year. Excess Amounts may not be
distributed to Participants or former Participants. If the Plan is
terminated while a suspense account described in this Section is in
existence, the amount in such suspense account shall revert to the
Employer(s) to which it is attributable.
A-12
APPENDIX B
TOP-HEAVY REQUIREMENTS
PART B.1 DEFINITIONS
As used herein, the following words and phrases have the meaning
attributed to them below:
B.1.1 "AGGREGATE ACCOUNTS" means the total of all account balances.
B.1.2 "AGGREGATION GROUP" means (a) each plan that is qualified under
section 401(a) of the Code and is maintained by any Affiliated Employer in which
a Key Employee is a member and (b) each other plan of the Employer or any
Affiliated Employer which enables any plan in (a) to meet the requirements of
either section 401(a)(4) or 410 of the Code. Any Employer may treat a plan not
required to be included in the Aggregation Group as being a part of the group if
the group would continue to meet the requirements of section 401(a)(4) and 410
of the Code with that plan being taken into account.
B.1.3 "DETERMINATION DATE" means for a given Plan Year the last day of the
preceding Plan Year or in the case of the first Plan Year the last day of that
Plan Year.
B.1.4 "KEY EMPLOYEE" means for Plan Years commencing prior to January 1,
2002, an Employee or former Employee (including a deceased former Employee) who
at any time during the Plan Year or any of the four preceding Plan Years is (a)
an officer of any Affiliated Employer having Annual Compensation greater than 50
percent of the annual addition limitation of section 415(b)(1)(A) of the Code
for the Plan Year, (b) one (1) of the ten employees having Annual Compensation
from any Affiliated Employer of greater than 100 percent of the annual addition
limitation of section 415(c)(1)(A) of the Code for the Plan Year and owning or
considered as owning (within the meaning of section 318 of the Code) the largest
interest in an Employer or any Affiliated Employer, treated separately, (c) a
Five Percent Owner of any Affiliated Employer, treated separately, or (d) a One
Percent Owner of any Affiliated Employer, treated separately, having Annual
Compensation from any Affiliated Employer of more than $150,000.00. For this
purpose no more than fifty (50) employees or, if lesser, the greater of three
(3) employees or ten percent (10%) of the employees shall be treated as
officers. Section 416(i) of the Code shall be used to determine percentage of
ownership. For the purpose of the test set out in (b) above, if two (2) or more
employees have the same interest in an Affiliated Employer, the employee with
the greater Annual Compensation from the Affiliated Employer shall be treated as
having the larger interest.
"Key Employee" means for Plan Years commencing on or after January 1,
2002, an Employee or former Employee (including a deceased former Employee) who
at any time during the Plan Year is (a) an officer of any Affiliated Employer
having Annual Compensation greater than $130,000.00 (as adjusted by the
Secretary of Treasury from time to time for increases in the cost of living),
(b) a Five Percent Owner of any Affiliated Employer, treated separately, or (c)
a One Percent Owner of any Affiliated Employer, treated separately, having
Annual Compensation
B-1
greater than $150,000.00. For this purpose no more than fifty (50) employees or,
if lesser, the greater of three (3) employees or ten percent (10%) of the
employees shall be treated as officers.
For purposes of determining the number of officers taken into account, the
following employees shall be excluded: (1) employees who have not completed six
(6) months of Vesting Service, (2) employees who normally work less than
seventeen and one-half (17-1/2) hours per week, (3) employees who normally work
not more than six (6) months during any year, (4) employees who have not
attained the age of twenty-one (21), and (5) except to the extent provided in
Regulations, employees who are included in a unit of employees covered by an
agreement which the Secretary of Labor finds to be a collective bargaining
agreement between employee representatives and an Affiliated Employer. Section
416(i) of the Code shall be used to determine percentage of ownership.
The determination of who is a Key Employee will be made in accordance with
section 416(i) of the Code and applicable Regulations.
B.1.5 "NON-KEY EMPLOYEE" means any Employee who is not a Key Employee.
B.1.6 "ONE PERCENT OWNER" means a person who is a one percent owner as
defined in section 416(i) of the Code.
B.1.7 "TOP-HEAVY PLAN" means any plan which has been determined to be
top-heavy under the test described in Appendix B of the Plan.
PART B.2 APPLICATION
B.2.1 APPLICATION. The requirements described in this Appendix B shall
apply to each Plan Year that the Plan is determined to be a Top-Heavy Plan.
B.2.2 TOP-HEAVY TEST. If on the Determination Date the Aggregate Accounts
of Key Employees in the Plan exceed 60 percent of the Aggregate Accounts of all
Employees in the Plan, the Plan shall be a Top-Heavy Plan for the Plan Year
being tested. In addition, if the Plan is required to be included in an
Aggregation Group and that group is a top-heavy group, the Plan shall be treated
as a Top-Heavy Plan. An Aggregation Group is a top-heavy group if on the
Determination Date the sum of (a) the present value of the cumulative accrued
benefits for Key Employees under all defined benefit plans in the Aggregation
Group which contains the Plan, plus (b) the total of all of the accounts of Key
Employees under all defined contribution plans included in the Aggregation Group
(which contains the Plan) is more than 60 percent of a similar sum determined
for all employees covered in the Aggregation Group which contains the Plan.
In applying the above tests, the following rules shall apply:
(a) effective for Plan Years that begin on or after January 1, 2002,
in determining the present value of the accumulated accrued benefits for
any Employee or the amount in the account of any Employee, the value or
amount shall be increased by all distributions made to or for the benefit
of the Employee under the Plan after his Separation From Service and
during the one-year period ending on the Determination Date;
B-2
(b) effective for Plan Years that begin on or after January 1, 2002,
in determining the present value of the accumulated accrued benefits for
any Employee or the amount in the account of any Employee, the value or
amount shall be increased by all distributions made to or for the benefit
of the Employee under the Plan prior to his Separation From Service and
during the five-year period ending on the Determination Date;
(c) effective for Plan Years that begin prior to January 1, 2002, in
determining the present value of the accumulated accrued benefits for any
Employee or the amount in the account of any Employee, the value or amount
shall be increased by all distributions made to or for the benefit of the
Employee under the Plan during the five-year period ending on the
Determination Date;
(d) all rollover contributions made by the Employee to the Plan
shall not be considered by the Plan for either test;
(e) if an Employee is a Non-Key Employee under the Plan for the Plan
Year but was a Key Employee under the Plan for a prior Plan Year, his
Account shall not be considered;
(f) effective for Plan Years that begin on or after January 1, 2002,
notwithstanding any other provision of the Plan, benefits shall not be
taken into account in determining the top-heavy ratio for any Employee who
has not performed services for the Employer during the last one-year
period ending upon the Determination Date; and
(g) effective for Plan Years that begin prior to January 1, 2002,
notwithstanding any other provision of the Plan, benefits shall not be
taken into account in determining the top-heavy ratio for any Employee who
has not performed services for the Employer during the last five-year
period ending upon the Determination Date.
B.2.3 VESTING RESTRICTIONS IF PLAN BECOMES TOP-HEAVY. If a Participant has
at least one Hour of Service during a Plan Year when the Plan is a Top-Heavy
Plan, he shall either vest under each of the normal vesting provisions of the
Plan or under the following vesting schedule, whichever is more favorable:
HIS NONFORFEITABLE INTEREST
IN HIS MATCHING
CONTRIBUTION ACCOUNT AND
IF THE PARTICIPANT HAS COMPLETED THE HIS SUPPLEMENTAL
FOLLOWING NUMBER OF YEARS OF VESTING SERVICE CONTRIBUTION ACCOUNT IS
-------------------------------------------- -----------------------
Less than two years 0 percent
Two years but less than three years 20 percent
Three years but less than four years 40 percent
Four years but less than five years 60 percent
Five years but less than six years 80 percent
Six years or more 100 percent
B-3
If the Plan ceases to be a Top-Heavy Plan, this requirement shall no longer
apply. After that date, the normal vesting provisions of the Plan shall be
applicable to all subsequent Contributions by the Employer.
B.2.4 MINIMUM CONTRIBUTIONS IF PLAN BECOMES TOP-HEAVY. If the Plan is a
Top-Heavy Plan and the normal allocation of the Employer Contribution and
forfeitures is less than five percent of any Non-Key Employee Participant's
Annual Compensation, the Committee, without regard to the normal allocation
procedures, shall allocate the Employer Contribution and the forfeitures among
the Participants who are in the employ of the Employer at the end of the Plan
Year and who are Non-Key Employees in proportion to each such Participant's
Annual Compensation until each Non-Key Employee Participant has had an amount
equal to five percent of his Annual Compensation allocated to his Account. At
that time, any more Employer Contributions or forfeitures shall be allocated
under the normal allocation procedures described earlier in the Plan. Amounts
that may be treated as Section 401(k) Contributions made on behalf of Non-Key
Employees may not be included in determining the minimum contribution required
under this Section to the extent that they are treated as Section 401(k)
Contributions for purposes of the Actual Deferral Percentage test.
In applying this restriction, the following rules shall apply:
(1) Each Employee who is eligible for participation (without regard
to whether he has made mandatory contributions, if any are required, or
whether his compensation is less than a stated amount) shall be entitled
to receive an allocation under this Section; and
(2) All defined contribution plans required to be included in the
Aggregation Group shall be treated as one plan for purposes of meeting the
three percent maximum; this required aggregation shall not apply if the
Plan is also required to be included in an Aggregation Group which
includes a defined benefit plan and the Plan enables that defined benefit
plan to meet the requirements of sections 401(a)(4) or 410 of the Code.
B.2.5 DISREGARD OF GOVERNMENT PROGRAMS. If the Plan is a Top-Heavy Plan,
it must meet the vesting and benefit requirements described in this Article
without taking into account contributions or benefits under Chapter 2 of the
Code (relating to the tax on self-employment income), Chapter 21 of the Code
(relating to the Federal Insurance Contributions Act), Title II of the Social
Security Act, or any other federal or state law.
B.2.6 MODIFICATION OF THE SECTION 415(E) LIMIT IF PLAN BECOMES TOP-HEAVY.
For Plan Years beginning before January 1, 2000, in any Plan Year that the Plan
is a Top-Heavy Plan the limitations in section 415(e) of the Code and Appendix A
of the Plan shall be applied by substituting the number "1.00" for the number
"1.25" wherever it appears therein. Such substitution shall not cause a
reduction in any accrued benefit attributable to contributions for a Plan Year
prior to the Plan Year in which the Plan is a Top-Heavy Plan.
B-4
APPENDIX C
ADMINISTRATION OF THE PLAN
C.1 APPOINTMENT, TERM, RESIGNATION, AND REMOVAL. The Board shall appoint a
Committee of no fewer than two persons, the members of which shall serve until
their resignation, death, or removal. The Sponsor shall notify the Trustee in
writing of its composition from time to time. Any member of the Committee may
resign at any time by giving written notice of such resignation to the Sponsor.
Any member of the Committee may be removed by the Board, with or without cause.
Vacancies in the Committee arising by resignation, death, removal, or otherwise
shall be filled by such persons as may be appointed by the Board.
C.2 POWERS. The Committee shall have exclusive responsibility for the
administration of the Plan, according to the terms and provisions of this
document, and shall have all powers necessary to accomplish such purposes,
including, but not by way of limitation, the right, power, and authority:
(a) to make rules and regulations for the administration of the Plan
which are not inconsistent with the terms and provisions thereof, provided
such rules and regulations are evidenced in writing;
(b) to construe all terms, provisions, conditions, and limitations
of the Plan; and its construction thereof made in good faith and without
discrimination in favor of or against any Participant shall be final and
conclusive on all parties at interest;
(c) to correct any defect, supply any omission, or reconcile any
inconsistency which may appear in the Plan in such manner and to such
extent as it shall deem expedient to carry the Plan into effect for the
greatest benefit of all parties at interest, and its judgment in such
matters shall be final and conclusive as to all parties at interest;
(d) to select, employ, and compensate from time to time such
consultants, actuaries, accountants, attorneys, and other agents and
employees as the Committee may deem necessary or advisable for the proper
and efficient administration of the Plan, and any agent, firm, or employee
so selected by the Committee may be a disqualified person, but only if the
requirements of section 4975(d) of the Code have been met;
(e) to resolve all questions relating to the eligibility of
Employees to become Participants, and to determine the period of Vesting
Service and the amount of Considered Compensation with respect to which
the benefits of each Participant shall be calculated;
(f) to resolve all controversies relating to the administration of
the Plan, including but not limited to (1) differences of opinion arising
between the Employer and a Participant or former Participant, and (2) any
questions it deems advisable to determine in order to promote the uniform
and nondiscriminatory administration of the Plan for the benefit of all
parties at interest;
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(g) to direct and instruct or to appoint an investment manager or
managers which would have the power to direct and instruct the Trustee in
all matters relating to the preservation, investment, reinvestment,
management, and disposition of the Trust.
(h) to direct and instruct the Trustee in all matters relating to
the payment of Plan benefits and to determine a Participant's or former
Participant's entitlement to a benefit should he appeal a denial of his
claim for a benefit or any portion thereof; and
(i) to delegate such of its clerical and recordation duties under
the Plan as it may deem necessary or advisable for the proper and
efficient administration of the Plan.
C.3 ORGANIZATION. The Committee shall select from among its members a
chairman, who shall preside at all of its meetings, and shall select a
secretary, without regard as to whether that person is a member of the
Committee, who shall keep all records, documents, and data pertaining to its
supervision of the administration of the Plan.
C.4 QUORUM AND MAJORITY ACTION. A majority of the members of the Committee
shall constitute a quorum for the transaction of business, and the vote of a
majority of the members present at any meeting will decide any question brought
before that meeting. In addition, the Committee may decide any question by a
vote, taken without a meeting, of a majority of its members.
C.5 SIGNATURES. The chairman, the secretary, and any one or more of the
members of the Committee to which the Committee has delegated the power, shall
each, severally, have the power to execute any document on behalf of the
Committee, and to execute any certificate or other written evidence of the
action of the Committee. The Trustee, after being notified of any such
delegation of power in writing, shall thereafter accept and may rely upon any
document executed by such member or members as representing the action of the
Committee until the Committee files with the Trustee a written revocation of
that delegation of power.
C.6 DISQUALIFICATION OF COMMITTEE MEMBERS. A member of the Committee who
is also a Participant shall not vote or act upon any matter relating solely to
himself, unless he is the sole member of the Committee.
C.7 DISCLOSURE TO PARTICIPANTS, FORMER PARTICIPANTS AND BENEFICIARIES. The
Committee shall make available to each Participant, former Participant and
Beneficiary for his examination such records, documents, and other data as are
required under ERISA, but only at reasonable times during business hours. No
Participant, former Participant or Beneficiary shall have the right to examine
any data or records reflecting the compensation paid to any other Participant,
former Participant or Beneficiary, and the Committee shall not be required to
make any data or records available other than those required by ERISA.
C.8 STANDARD OF PERFORMANCE. The Committee and each of its members shall
use the care, skill, prudence, and diligence under the circumstances then
prevailing that a prudent man acting in a like capacity and familiar with such
matters would use in conducting his business as the administrator of the Plan;
shall, when exercising its power to direct investments, diversify the
investments of the Plan so as to minimize the risk of large losses, unless under
the
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circumstances it is clearly prudent not to do so; and shall otherwise act in
accordance with the provisions of the Plan and ERISA.
C.9 LIABILITY OF COMMITTEE AND LIABILITY INSURANCE. No member of the
Committee shall be liable for any act or omission of any other member of the
Committee, the Trustee, any investment manager, or any Participant, former
Participant or Beneficiary who directs the investment of his Account or other
agent appointed by the Committee except to the extent required by the terms of
ERISA, and any other applicable state or federal law, which liability cannot be
waived. No member of the Committee shall be liable for any act or omission on
his own part except to the extent required by the terms of ERISA, and any other
applicable state or federal law, which liability cannot be waived. In this
connection, each provision hereof is severable and if any provision is found to
be void as against public policy, it shall not affect the validity of any other
provision hereof.
Further, it is specifically provided that the Trustee may, at the
direction of the Committee, purchase out of the Trust assets hereof insurance
for the members of the Committee and any other fiduciaries appointed by the
Committee, and for the Trust itself to cover liability or losses occurring by
reason of the act or omission of any one or more of the members of the Committee
or any other fiduciary appointed by them under the Plan, provided such insurance
permits recourse by the insurer against the members of the Committee or the
other fiduciaries concerned in the case of a breach of a fiduciary obligation by
one or more members of the Committee or other fiduciary covered thereby.
C.10 BONDING. No member of the Committee shall be required to give bond
for the performance of his duties hereunder unless required by a law which
cannot be waived.
C.11 COMPENSATION. The Committee shall serve without compensation for
their services, but shall be reimbursed by the Employers for all expenses
properly and actually incurred in the performance of their duties under the Plan
unless the Employers elect to have such expenses paid out of the Trust assets.
C.12 PERSONS SERVING IN DUAL FIDUCIARY ROLES. Any person, group of
persons, corporations, firm, or other entity may serve in more than one
fiduciary capacity with respect to the Plan, including the ability to serve both
as a successor trustee and as a member of the Committee.
C.13 ADMINISTRATOR. For all purposes of ERISA, the administrator of the
Plan within the meaning of ERISA shall be the Sponsor. The Sponsor shall have
final responsibility for compliance with all reporting and disclosure
requirements imposed with respect to the Plan under any federal or state law, or
any regulations promulgated thereunder.
C.14 NAMED FIDUCIARY. The members of the Committee shall be the "named
fiduciary" for purposes of section 402(a)(1) of ERISA, and as such shall have
the authority to control and manage the operation and administration of the
Plan, except to the extent such authority and control are allocated or delegated
to other parties pursuant to the terms of the Plan.
C.15 STANDARD OF JUDICIAL REVIEW OF COMMITTEE ACTIONS. The Committee has
full and absolute discretion in the exercise of each and every aspect of its
authority under the Plan,
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including without limitation, the authority to determine any person's right to
benefits under the Plan, the correct amount and form of any such benefits; the
authority to decide any appeal; the authority to review and correct the actions
of any prior administrative committee; and all of the rights, powers, and
authorities specified in this Appendix C and elsewhere in the Plan.
Notwithstanding any provision of law or any explicit or implicit provision of
the Plan, any action taken, or ruling or decision made by the Committee in the
exercise of any of its powers and authorities under the Plan, these will be
final and conclusive as to all parties other than the Sponsor or Trustee,
including without limitation all Participants, former Participants and
Beneficiaries, regardless of whether the Committee or one or more members
thereof may have an actual or potential conflict of interest with respect to the
subject matter of such action, ruling, or decision. No such final action,
ruling, or decision of the Committee will be subject to de novo review in any
judicial proceeding; and no such final action, ruling, or decision of the
Committee may be set aside unless it is held to have been arbitrary and
capricious by a final judgment of a court having jurisdiction with respect to
the issue.
C.16 INDEMNIFICATION OF THE BOARD AND THE COMMITTEE BY THE SPONSOR. The
Sponsor shall indemnify and hold harmless the Board, the Committee, the Board
members, the Committee members, and any Employees of an Employer to whom the
Committee has allocated or delegated its responsibilities in accordance with the
provisions hereof, as well as any other fiduciary who is also an officer,
director, or Employee of an Employer, and hold each of them harmless from and
against all claims, loss, damages, expense, and liability arising from their
responsibilities in connection with the administration of the Plan which is not
otherwise paid or reimbursed by insurance, unless the same shall result from
their own willful misconduct.
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APPENDIX D
FUNDING
D.1 BENEFITS PROVIDED SOLELY BY TRUST. All benefits payable under the Plan
shall be paid or provided for solely from the Trust, and the Employer assumes no
liability or responsibility therefor.
D.2 FUNDING OF PLAN. The Plan shall be funded by one or more separate
Trusts. If more than one Trust is used, each Trust shall be designated by the
name of the Plan followed by a number assigned by the Committee at the time the
Trust is established.
D.3 INCORPORATION OF TRUST. Each Trust is a part of the Plan. All rights
or benefits which accrue to a person under the Plan shall be subject also to the
terms of the agreements creating the Trust or Trusts and any amendments to them
which are not in direct conflict with the Plan.
D.4 AUTHORITY OF TRUSTEE. Each Trustee shall have full title and legal
ownership of the assets in the separate Trust which, from time to time, are in
his or its separate possession. No other Trustee shall have joint title to or
joint legal ownership of any asset in one of the other Trusts held by another
Trustee. Each Trustee shall be governed separately by the trust agreement
entered into between the Employer and that Trustee and the terms of the Plan
without regard to any other agreement entered into between any other Trustee and
the Employer as a part of the Plan.
D.5 ALLOCATION OF RESPONSIBILITY. To the fullest extent permitted under
section 405 of ERISA, the agreements entered into between the Employer and each
of the Trustees shall be interpreted to allocate to each Trustee its specific
responsibilities, obligations and duties so as to relieve all other Trustees
from liability either through the agreement, Plan or ERISA, for any act of any
other Trustee which results in a loss to the Plan because of his act or failure
to act.
D.6 TRUSTEE'S FEES AND EXPENSES. The Trustee shall receive for its
services as Trustee hereunder the compensation which from time to time may be
agreed upon by the Sponsor and the Trustee. All of such compensation, together
with the expenses incurred by the Trustee in connection with the administration
of this Trust, including fees for legal services rendered to the Trustee, all
other charges and disbursements of the Trustee, and all other expenses of the
Plan shall be charged to and deducted from the Trust assets, unless the Sponsor
elects in writing to have any part or all of such compensation, expenses,
charges, and disbursements paid directly by the Sponsor. The Trustee shall
deduct from and charge against the Trust assets any and all taxes paid by it
which may be levied or assessed upon or in respect of the Trust hereunder or the
income thereof, and shall equitably allocate the same among the several
Participants, former Participants and Beneficiaries.
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