As filed with the Securities and Exchange Commission on September 11, 1997
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-------------------
SANO CORPORATION
- --------------------------------------------------------------------------------
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
FLORIDA 65-0263022
------------------------------- ----------------------
(STATE OR OTHER JURISDICTION OF (IRS EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
3250 COMMERCE PARKWAY
MIRAMAR, FLORIDA 33025
- --------------------------------------------------------------------------------
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
SANO CORPORATION 401(K) PLAN
- --------------------------------------------------------------------------------
(FULL TITLE OF THE PLAN)
-------------------
REGINALD L. HARDY
PRESIDENT
SANO CORPORATION
3250 COMMERCE PARKWAY
MIRAMAR, FLORIDA 33025
- --------------------------------------------------------------------------------
(Name and address of agent for service)
(954) 430-3340
- --------------------------------------------------------------------------------
(Telephone number, including area code, of agent for service)
COPY TO:
GARY M. EPSTEIN, ESQ.
GREENBERG TRAURIG HOFFMAN
LIPOFF ROSEN & QUENTEL, P.A.
1221 BRICKELL AVENUE
MIAMI, FLORIDA 33131
(305) 579-0894
-------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
PROPOSED MAXIMUM PROPOSED
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE (1) OFFERING PRICE(1) REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
COMMON STOCK, 50,000 $20.25 $1,012,500 $306.82
$.01 PAR VALUE SHARES
====================================================================================================================================
<FN>
(1) Estimated solely for the purpose of calculating the registration fee which
was computed in accordance with Rule 457(h) on the basis of an assumed
price of $20.25 per share (based on the Registrant's closing stock price on
the Nasdaq Stock Market on September 9, 1997).
</FN>
</TABLE>
<PAGE>
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant hereby incorporates by reference into this
Registration Statement the following documents or portions thereof as indicated:
(a) the Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1996;
(b) all other reports filed by the Registrant pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of
1934 (the "Exchange Act") since the end of fiscal year
1996; and
(c) the descriptions of the Registrant's Common Stock and
related matters set forth under the captions
"Description of Capital Stock" and "Dividend Policy" in
the Registrant's Registration Statement on Form S-1 (File
No. 33-97194) filed under the Securities Act of 1933, as
amended (the "Act"), including any amendments to such
descriptions in such Registration Statement.
In addition, all documents subsequently filed by the
Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated herein by reference
and to be a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant has authority under Section 607.0850 of the
Florida Business Corporation Act to indemnify its directors and officers to the
extent provided in such statute. The Registrant's Articles of Incorporation
provide that the Registrant may indemnify its executive officers and directors
to the fullest extent permitted by law either now or hereafter.
The provisions of the Florida Business Corporation Act that
authorize indemnification do not eliminate the duty of care of a director, and
in appropriate circumstances equitable remedies such as injunctive or other
forms of nonmonetary relief will remain available under Florida law. In
addition, each director will continue to be subject to liability for (a)
violations of criminal laws, unless the director had reasonable cause to believe
his conduct was lawful or had no reasonable cause to believe his conduct was
unlawful; (b) deriving an improper personal benefit from a transaction; (c)
voting for or assenting to an unlawful distribution; and (d) willful misconduct
or a conscious disregard for the best interests of the Registrant in a
proceeding by or in the right of the Registrant to procure a judgment in its
favor or in a proceeding by or in the right of a shareholder. The statute does
not affect a director's responsibilities under any other law, such as the
federal securities laws.
At present, there is no pending litigation or proceeding
involving a director or officer of the Registrant as to which indemnification is
being sought, nor is the Registrant aware of any threatened litigation that may
result in claims for indemnification by any officer or director.
2
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS
See "Exhibit Index" on page II-4 below.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) shall not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Miramar, State of Florida on September __, 1997.
SANO CORPORATION
By: /s/REGINALD L. HARDY
---------------------
Reginald L. Hardy
President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Marc M. Watson and Reginald L.
Hardy his true and lawful attorneys-in-fact, each acting alone, with full powers
of substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all amendments, including any
post-effective amendments, to this Registration Statement, and to file the same,
with exhibits thereto, and other documents to be filed in connection therewith,
with the Securities and Exchange Commission, hereby ratifying and confirming all
that said attorneys-in-fact or their substitutes, each acting alone, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/REGINALD L. HARDY President and Director September 10, 1997
- --------------------------------- (principal executive officer)
Reginald L. Hardy
/s/MARC M. WATSON Chairman of the Board September 10, 1997
- ---------------------------------
Marc M. Watson
/s/GERALD S. COOMBS Chief Financial Officer September 10, 1997
- --------------------------------- (principal financial officer and
Gerald S. Coombs principal accounting officer)
/s/CHARLES J. BETLACH, PH.D. Director September 10, 1997
- ---------------------------------
Charles J. Betlach, Ph.D.
Director September __, 1997
- ---------------------------------
Hubert E. Huckel, M.D.
/s/MARCO POSSATI Director September 10, 1997
- ---------------------------------
Marco Possati
/s/ROY S. WALZER Director September 10, 1997
- ---------------------------------
Roy S. Walzer
</TABLE>
4
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT INDEX
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION PAGE NO.
------- ----------- ----------
<S> <C> <C>
3.1 Registrant's Amended and Restated Articles of Incorporation (1)
3.2 Registrant's Amended and Restated Bylaws (2)
4.3 Sano Corporation 401(k) Plan
5.1 Opinion of Greenberg Traurig Hoffman Lipoff Rosen & Quentel, P.A.
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Greenberg Traurig Hoffman Lipoff Rosen & Quentel,
P.A. (contained in its opinion filed as Exhibit 5.1 hereto)
24.1 Power of Attorney is included in the Signatures section of this
Registration Statement
<FN>
- ----------------------------
(1) Incorporated by reference to Exhibit 3.1 filed with the Registrant's Registration Statement on Form S-1 (File
No. 33-97194).
(2) Incorporated by reference to Exhibit 3.2 filed with the Registrant's Registration Statement on Form S-1 (File
No. 33-97194).
</FN>
</TABLE>
5
EXHIBIT 4.3
PLAN #004
NONSTANDARDIZED
ADOPTION AGREEMENT
PROTOTYPE CASH OR DEFERRED PROFIT-SHARING
PLAN AND TRUST/CUSTODIAL ACCOUNT
SPONSORED BY
SUNTRUST
The Employer named below hereby establishes a Cash or Deferred Profit-Sharing
Plan for eligible Employees as provided in this Adoption Agreement and the
accompanying Basic Prototype Plan and Trust/Custodial Account Basic Plan
Document #04.
1. EMPLOYER INFORMATION
NOTE: If multiple Employers are adopting the Plan, complete this
section based on the lead Employer. Additional Employers may adopt this
Plan by attaching executed signature pages to the back of the
Employer's Adoption Agreement.
(a) NAME AND ADDRESS:
SANO CORPORATION
3250 COMMERCE PARKWAY
MIRAMAR, FL 33025
(b) TELEPHONE NUMBER: (305)430-3340
(c) TAX ID NUMBER: 65-263022
(d) FORM OF BUSINESS:
[ ] (i) Sole Proprietor
[ ] (ii) Partnership
[x] (iii) Corporation
[ ] (iv) "S" Corporation (formerly known as
Subchapter S)
[ ] (v) Other:
<PAGE>
(e) NAME OF INDIVIDUAL AUTHORIZED TO ISSUE INSTRUCTIONS TO THE
TRUSTEE/CUSTODIAN:
THOSE CERTIFIED BY THE EMPLOYER (P&T 11.4(D))
(f) NAME OF PLAN: SANO CORPORATION 401(K) PLAN
(g) THREE DIGIT PLAN NUMBER
FOR ANNUAL RETURN/REPORT: 001
2. EFFECTIVE DATE
(a) This is a new Plan having an effective date of
(b) This is an amended Plan.
The effective date of the original Plan was JANUARY 1, 1996
The effective date of the amended Plan is JANUARY 1, 1996
(c) If different from above, the Effective Date for the Plan's
Elective Deferral provisions shall be ____________________.
NOTE: See Appendix A before Signatures at Paragraph 23 for
provisions which differ from this final Tax Reform Act of 1986
Plan Document and their effective periods.
3. DEFINITIONS
(a) "Collective or Commingled Funds" (Applicable to
institutional Trustees only.) Investment in collective or
commingled funds as permitted at paragraph 13.3(b) of the
Basic Plan Document #04 shall only be made to the following
specifically named fund(s):
SUNTRUST EMPLOYEE BENEFIT STABLE ASSET FUND
Funds made available after the execution of this Adoption
Agreement will be listed on schedules attached to the end of
this Adoption Agreement.
(b) "Compensation" Compensation shall be determined on the basis
of the:
[x] (i) Plan Year.
[ ] (ii) Employer's Taxable Year.
[ ] (iii)Calendar Year.
<PAGE>
NOTE: If Plan Year is selected, Compensation will only include
amounts earned while a Participant.
Compensation shall be determined on the basis of the following
safe-harbor definition of Compensation in IRS Regulation
Section 1.414(s)-l(c):
[x] (iv) Code Section 6041 and 6051 Compensation,
[ ] (v) Code Section 3401 (a) Compensation, or
[ ] (vi) Code Section 415 Compensation.
Compensation [X] shall [ ] shall not include Employer
contributions made pursuant to a Salary Savings Agreement
which are not includable in the gross income of the Employee
for the reasons indicated in the definition of Compensation at
1.12 of the Basic Plan Document #04.
NOTE: Any exclusion of Compensation must satisfy the
requirements of Section 1.401(a)(4) of the Income Tax
Regulations and Code Section 414(s) and the regulations
thereunder.
For purposes of the Plan, Compensation shall be limited to
$_________, . the maximum amount which will be considered for
Plan purposes. [If an amount is specified, it will limit the
amount of contributions allowed on behalf of higher
compensated Employees. Completion of this section is not
intended to coordinate with the $150,000 of Code Section
401(a)(17), thus the amount should be less than $150,000 as
adjusted for cost-of-living increases.]
If the Employer chooses a non-integrated allocation formula,
Compensation will exclude:
[ ] (1) overtime.
[ ] (2) bonuses.
[ ] (3) commissions.
[ ] (4) ___________.
NOTE: Any exclusion of Compensation must satisfy the requirements of
Section 1.401 (a)(4) of the Income Tax Regulations and Code
Section 414(s) and the regulations thereunder.
For purposes of ADP and ACP testing, calculations shall be
determined based on [X] Compensation amounts for the periods
which the Employee was eligible to participate or [ ]
Compensation amounts for the entire Plan Year, whether or not
the Employee was a Participant for the entire Plan Year.
(c) "Entry Date"
[ ] (i) The first day of the Plan Year nearest the
date on which an Employee meets the
eligibility requirements.
<PAGE>
[x] (ii) The earlier of the first day of the Plan
Year or the first day of the seventh month
of the Plan Year coinciding with or
following the date on which an Employee
meets the eligibility requirements.
[ ] (iii) The first day of the Plan Year following the
date on which the Employee meets the
eligibility requirements. If this election
is made, the Service requirement at 4(a)(ii)
may not exceed 1/2 year and the age
requirement at 4(b)(ii) may not exceed
20-1/2.
[ ] (iv) The first day of the month coinciding with
or following the date on which an Employee
meets the eligibility requirements.
[ ] (v) The first day of the Plan Year, or
the first day of the fourth month, or the
first day of the seventh month or the first
day of the tenth month, of the Plan Year
coinciding with or following the date on
which an Employee meets the eligibility
requirements.
(d) "Hours of Service" Shall be determined on the basis of
the method selected below. Only one method may be selected.
The method selected shall be applied to all Employees covered
under the Plan as follows:
[x] (i) On the basis of actual hours for which an
Employee is paid or entitled to payment.
[ ] (ii) On the basis of days worked.
An Employee shall be credited with ten (10)
Hours of Service if under paragraph 1.44 of
the Basic Plan Document #04 such Employee
would be credited with at least one (1) Hour
of Service during the day.
[ ] (iii) On the basis of weeks worked.
An Employee shall be credited with
forty-five (45) Hours of Service if under
paragraph 1.44 of the Basic Plan Document
#04 such Employee would be credited with at
least one (1) Hour of Service during the
week.
[ ] (iv) On the basis of semi-monthly payroll
periods.
An Employee shall be credited with
ninety-five (95) Hours of Service if under
paragraph 1.44 of the Basic Plan Document
#04 such Employee would be credited with at
least one (1) Hour of Service during the
semi-monthly payroll period.
[ ] (v) On the basis of months worked.
An Employee shall be credited with
one-hundred-ninety (190) Hours of Service if
under paragraph 1.44 of the Basic Plan
Document #04 such Employee would be credited
with at least one ( 1 ) Hour of Service
during the month.
<PAGE>
(e) "Limitation Year" The 12-consecutive month period
commencing on JANUARY 1 and ending on DECEMBER 31.
If applicable, the Limitation Year will be a short Limitation
Year commencing on ________________and ending on ____________.
Thereafter, the Limitation Year shall end on the date last
specified above.
(f) "Net Profit"
[x] (i) Not applicable (profits will not be
required for any contributions to the Plan).
[ ] (ii) As defined in paragraph 1.51 of the Basic
Plan Document #04.
[ ] (iii) Shall be defined as:
-------------------------------
(Only use if definition in paragraph 1.51 of the
Basic Plan Document #04 is to be superseded.)
(g) "Plan Year" The 12-consecutive month period commencing on
JANUARY 1 AND ending on DECEMBER 31.
If applicable, the Plan Year will be a short Plan Year
commencing on _____ and ending on _______. Thereafter, the
Plan Year shall end on the date last specified above.
(h) "Qualified Early Retirement Age" For purposes of making
distributions under the provisions of a Qualified Domestic
Relations Order, the Plan's Qualified Early Retirement Age
with regard to the Participant against whom the order is
entered [x] shall [ ] shall not be the date the order is
determined to be qualified. If "shall" is elected, this will
only allow payout to the alternate payee(s).
(i) "Qualified Joint and Survivor Annuity" The safe-harbor
provisions of paragraph 8.7 of the Basic Plan Document #04 [x]
are [ ] are not applicable. If not applicable, the survivor
annuity shall be _% (50%, 66-2/3%, 75% or 100%) of the annuity
payable during the lives of the Participant and Spouse. If no
answer is specified, 50% will be used.
(j) "Taxable Wage Base"
[x] (i) Not Applicable - Plan is not integrated with
Social Security.
[ ] (ii) The maximum earnings considered wages for
such Plan Year under Code Section 3121(a).
<PAGE>
[ ] (iii) _____% (not more than 100%) of the amount
considered wages for such Plan Year
under Code Section 3121(a).
[ ] (iv) $_______, provided that such amount
is not in excess of the amount determined
under paragraph 3(j)(ii) above.
[ ] (v) For the 1989 Plan Year $10,000. For
all subsequent Plan Years, 20% of the
maximum earnings considered wages for such
Plan Year under Code Section 3121(a).
NOTE: Using less than the maximum at (ii) may result in a
change in the allocation formula in Section 7.
(k) "Valuation Date(s)" Allocations to Participant Accounts will
be done in accordance with Article V of the Basic Plan
Document #04:
(i) Daily
(ii) Weekly
(iii) Monthly
(iv) Bi-Monthly
(v) Quarterly
(vi) Semi-Annually
(vii) Annually
Indicate Valuation Date(s) to be used by specifying option
from list above:
<PAGE>
<TABLE>
<CAPTION>
TYPE OF CONTRIBUTION(S) VALUATION DATE(S)
- ----------------------- -----------------
<S> <C>
After-Tax Voluntary Contributions [Section 6] n/a
Elective Deferrals [Section 7(b)] (i)
Matching Contributions [Section 7(c)] (i)
Qualified Non-Elective Contributions [Section 7(d)] (i)
Non-Elective Contributions [Section 7(e), (f) and (g)] n/a
Minimum Top-Heavy Contributions [Section 7(i)] (i)
</TABLE>
(l) "Year of Service"
(i) For Eligibility Purposes: The 12-consecutive
month period during which an Employee is
credited with 1000 (not more than 1,000)
Hours of Service.
(ii) For Allocation Accrual Purposes - Employer Matching
Contributions: The 12-consecutive month
period during which an Employee is credited
with 1000 (not more than 1,000) Hours of
Service.
(iii) For Allocation Accrual Purposes -All Other Employer
Contributions: The 12-consecutive month
period during which an Employee is credited
with 1000 (not more than 1,000) Hours of
Service.
(iv) For Vesting Purposes: The 12-consecutive month period
during which an Employee is credited with
1000 (not more than 1,000) Hours of Service.
4. ELIGIBILITY REQUIREMENTS
(a) Service:
[ ] (i) The Plan shall have no Service requirement.
[x] (ii) The Plan shall cover only Employees having completed
at least 1/2 [not more than one ( 1 )] Years
of Service.
NOTE: If the eligibility period selected is less than one
year, an Employee will not be required to complete any
specified number of Hours of Service to receive credit for
such period.
<PAGE>
(b) Age:
[ ] (i) The Plan shall have no minimum age
requirement.
[x] (ii) The Plan shall cover only Employees having
attained age 21 (not more than age 21).
(c) Classification:
The Plan shall cover all Employees who have met the age and
service requirements with the following exceptions:
[x] (i) No exceptions.
[ ] (ii) The Plan shall exclude Employees included in
a unit of Employees covered by a collective
bargaining agreement between the Employer
and Employee Representatives, if retirement
benefits were the subject of good faith
bargaining. For this purpose, the term
"Employee Representative" does not include
any organization more than half of whose
members are Employees who are owners,
officers, or executives of the Employer.
[ ] (iii) The Plan shall exclude Employees who are
nonresident aliens and who receive no earned
income from the Employer which constitutes
income from sources within the United
States.
[ ] (iv) The Plan shall exclude from participation
any nondiscriminatory classification of
Employees determined as follows:
NOTE: Employees, if otherwise permitted under law and
regulations, may waive out from all or a portion of
this Plan if the Employer so provides above and the
Plan continues to meet the requirements of Code
Sections 401(a)(26) and 410(b). In addition,
eliminating part-time employees, as announced by
several Key Districts, is NOT acceptable since the
IRS considers that to be a discriminatory
classification.
(d) Employees on Effective Date:
[ ] (i) Not Applicable. All Employees will be
required to satisfy both the age and Service
requirements specified above.
[x] (ii) Employees employed on the Plan's Effective
Date do not have to satisfy the Service
requirements specified above.
[x] (iii) Employees employed on the Plan's Effective
Date do not have to satisfy the age
requirements specified above.
<PAGE>
5. RETIREMENT AGES
(a) Normal Retirement Age:
If the Employer imposes a requirement that Employees retire
upon reaching a specified age, the Normal Retirement Age
selected below may not exceed the Employer imposed mandatory
retirement age.
[x] (i) Normal Retirement Age shall be 65 (not to
exceed age 65).
[ ] (ii) Normal Retirement Age shall be the later of
attaining age (not to exceed age 65) or the
(not to exceed the 5th) anniversary of the
first day of the first Plan Year in which
the Participant commenced participation in
the Plan.
(b) Early Retirement Age:
[x] (i) Not Applicable.
[ ] (ii) The Plan shall have an Early Retirement Age
of (not less than 55) and completion of
Years of Service.
6. EMPLOYEE CONTRIBUTIONS
[x] (a) Participants shall be permitted to make Elective
Deferrals in any amount from 2% up to 16% of their
Compensation.
If (a) is applicable, Participants shall be permitted
to amend their Salary Savings Agreements to change
the contribution percentage as provided below:
[ ] (i) On the Anniversary Date of the Plan,
[x] (ii) On the Anniversary Date of the Plan and on
the first day of the seventh month of the
Plan Year,
[ ] (iii) On the Anniversary Date of the Plan and on
the first day following any Valuation Date,
[ ] (iv) On the Anniversary Date of the Plan and on
the first day of the fourth, seventh and
tenth months of the Plan Year, or
[ ] (v) Upon 30 days notice to the Employer.
[ ] (b) Participants shall be permitted to make after tax
Voluntary Contributions up to _ % of Compensation.
<PAGE>
[ ] (c) Participants shall be required to make after tax
Voluntary Contributions as follows (Thrift Savings Plan):
[ ] (i) ____% of Compensation.
[ ] (ii) A percentage determined by the Employee on
his or her enrollment form.
NOTE: If Employee after-tax Voluntary Contributions are
required for the Employee to participate in the Plan, the
Employer Contribution shall be deemed Employer Matching
Contributions subject to the Average Contribution Percentage
[401(m)] Test.
[x] (d) If necessary to pass the Average Deferral Percentage
Test, Participants [ ] may [x] may not have Elective
Deferrals recharacterized as Voluntary Contributions.
NOTE: The Average Deferral Percentage Test will apply to
contributions under (a) above. The Average
Contribution Percentage Test will apply to
contributions under (b) and (c) above, and may apply
to (a).
7. EMPLOYER CONTRIBUTIONS AND ALLOCATION THEREOF
NOTE: The Employer shall make contributions to the Plan in
accordance with the formula or formulas selected below. The
Employer's contribution shall be subject to the limitations
contained in Articles m and X. For this purpose, a
contribution for a Plan Year shall be limited for the
Limitation Year which ends with or within such Plan Year.
Also, the integrated allocation formulas below are for Plan
Years beginning in 1989 and later. The Employer's allocation
for earlier years shall be as specified in its Plan prior to
amendment for the Tax Reform Act of 1986.
(a) Profits Requirement:
(i) Current or Accumulated Net Profits are required for:
[ ] (A) Matching Contributions.
[ ] (B) Qualified Non-Elective Contributions.
[ ] (C) discretionary contributions.
(ii) No Net Profits are required for:
[x] (A) Matching Contributions.
[x] (B) Qualified Non-Elective Contributions.
[ ] (C) discretionary contributions.
NOTE: Elective Deferrals can always be contributed regardless
of profits.
<PAGE>
[x] (b) Salary Savings Agreement:
The Employer shall contribute and allocate to each
Participant's account an amount equal to the amount withheld
from the Compensation of such Participant pursuant to his or
her Salary Savings Agreement. If applicable, the maximum
percentage is specified in Section 6 above.
An Employee who has terminated his or her election under the
Salary Savings Agreement other than for hardship reasons may
not make another Elective Deferral:
[ ] (i) until the first day of the next Plan Year.
[ ] (ii) until the next valuation Date.
[x] (iii) until the first day of the next Plan Year
or, if earlier, on the first day of the
seventh month of the current Plan Year.
[ ] (iv) until the first day of the next Plan Year
or, if earlier, on the first day of the
fourth, seventh and tenth months of the
current Plan Year.
[ ] (v) for a period of month(s) (not to exceed
12 months).
[x] (c) Matching Employer Contribution [See paragraphs (h)
and (i)]:
[ ] (i) PERCENTAGE MATCH: The Employer shall
contribute and allocate to each eligible
Participant's account an amount equal to
____% of the amount contributed and
allocated in accordance with paragraph 7(b)
above and (if checked) ____% of [ ] the
amount of Voluntary Contributions made in
accordance with paragraph 4.1 of the Basic
Plan Document #04. The Employer shall not
match Participant Elective Deferrals as
provided above in excess of $______ or in
excess of _____% of the Participant's
Compensation or if applicable, Voluntary
Contributions in excess of $______ or in
excess of ___ % of the Participant's
Compensation. In no event will the match on
both Elective Deferrals and Voluntary
Contributions exceed a combined amount of
$_______ or ____%.
[x] (ii) DISCRETIONARY MATCH: The Employer shall
contribute and allocate to each eligible
Participant's account a percentage of the
Participant's Elective Deferral contributed
and allocated in accordance with paragraph
7(b) above. The Employer may set such
percentage prior to the end of the Plan
Year. The Employer shall not match
Participant Elective Deferrals in excess of
$_____ or in excess of 6% of the
Participant's Compensation.
<PAGE>
[ ] (iii) TIERED MATCH: The Employer shall
contribute and allocate to each
Participant's account an amount equal to
_____% of the first ______% of the
Participant's Compensation, to the extent
deferred.
_____% of the next _____% of the
Participant's Compensation, to the extent
deferred.
________% of the next ______% of the
Participant's Compensation, to the extent
deferred.
NOTE: Percentages specified in (iii) above may not increase
as the percentage of Participant's contribution
increases.
[ ] (iv) FLAT DOLLAR MATCH: The Employer shall
contribute and allocate to each
Participant's account $_________ if the
Participant defers at least 1% of
Compensation.
[ ] (v) PERCENTAGE OF COMPENSATION MATCH: The
Employer shall contribute and allocate to
each Participant's account ____% of
Compensation if the Participant defers at
least 1% of Compensation.
NOTE: Matching options (iv) or (v) may
violate the Code Section 401(a) regulations
by failure to make the match effectively
available to all Participants.
[ ] (vi) PROPORTIONATE COMPENSATION MATCH: The
Employer shall contribute and allocate to
each Participant who defers at least 1% of
Compensation, an amount determined by
multiplying such Employer Matching
Contribution by a fraction the numerator of
which is the Participant's Compensation and
the denominator of which is the Compensation
of all Participants eligible to receive such
an allocation. The Employer shall set such
discretionary contribution prior to the end
of the Plan Year.
[x] (vii) QUALIFIED MATCH: Employer Matching
Contributions will be treated as Qualified
Matching Contributions to the extent
specified below:
[ ] (A) All Matching Contributions.
[ ] (B) None
[ ] (C) ______% of the Employer's Matching
Contribution.
[ ] (D) Up to ____% of each Participant's
Compensation.
<PAGE>
[x] (E) The amount necessary to meet the [ ]
Average Deferral Percentage (ADP)
Test, [ ] Average Contribution
Percentage (ACP) Test, [x] Both
the ADP and ACP Tests.
(viii) Matching Contribution Computation Period:
The time period upon which matching
contributions will be based shall be:
[ ] (A) weekly
[ ] (B) bi-weekly
[ ] (C) semi-monthly
[ ] (D) monthly
[ ] (E) quarterly
[ ] (F) semi-annually
[x] (G) annually
[ ] (H) the Participant's payroll period
(ix) ELIGIBILITY FOR MATCH: Employer Matching
Contributions, whether or not Qualified, will only be
made on Employee Contributions not withdrawn prior to
the end of the [ ] valuation period [ ] Plan Year.
NOTE: This Eligibility for Match shall override any
conflicting Employer contribution requirements in the Basic
Plan Document since the Employee Elective Deferrals and/or
Contributions shall be deemed not made if withdrawn.
[x] (d) Qualified Non-Elective Employer Contribution - [See
paragraphs (h) and (i)] These contributions are fully vested
when contributed.
The Employer shall have the right to make an
additional discretionary contribution which shall be
allocated to each eligible Employee in proportion to
his or her Compensation as a percentage of the
Compensation of all eligible Employees. This part of
the Employer's contribution and the allocation
thereof shall be unrelated to any Employee
contributions made hereunder. The amount of Qualified
non-Elective Contributions taken into account for
purposes of meeting the ADP or ACP test requirements
is:
[ ] (i) All such Qualified non-Elective
Contributions.
[x] (ii) The amount necessary to meet [ ] the ADP
test, [ ] the ACP test, [x] Both the ADP and
ACP tests.
<PAGE>
Qualified non-Elective Contributions will be made to:
[ ] (iii) All Employees eligible to participate.
[x] (iv) Only non-Highly Compensated Employees
eligible to participate.
[ ] (e) Additional Employer Contribution Other Than Qualified
Non-Elective Contributions - Non-Integrated [See paragraphs
(h) and (i)].
The Employer shall have the right to make an additional
discretionary contribution which shall be allocated to each
eligible Employee in proportion to his or her Compensation as
a percentage of the Compensation of all eligible Employees.
This part of the Employer's contribution and the allocation
thereof shall be unrelated to any Employee contributions made
hereunder.
[ ] (f) Additional Employer Contribution - Integrated
Allocation Formula [See paragraphs (h) and (i)]
The Employer shall have the right to make an additional
discretionary contribution. The Employer's contribution
for the Plan Year plus any forfeitures shall be allocated
to the accounts of eligible Participants as follows:
(i) First, to the extent contributions and forfeitures
are sufficient, all Participants will receive an
allocation equal to 3% of their Compensation.
(ii) Next, any remaining Employer Contributions and
forfeitures will be allocated to Participants who have
Compensation in excess of the Taxable Wage Base (excess
Compensation). Each such Participant will receive an
allocation in the ratio that his or her excess
compensation bears to the excess Compensation of all
Participants. Participants may only receive an allocation
of 3% of excess Compensation.
(iii) Next, any remaining Employer contributions and
forfeitures will be allocated to all Participants in the
ratio that their Compensation plus excess Compensation
bears to the total Compensation plus excess Compensation
of all Participants. Participants may only receive an
allocation of up to 2.7% of their Compensation plus
excess Compensation, under this allocation method. If the
Taxable Wage Base defined at Section 3(j) is less than or
equal to the greater of $10,000 or 20% of the maximum,
the 2.7% need not be reduced. If the amount specified is
greater than the greater of $10,000 or 20% of the maximum
Taxable Wage Base, but not more than 80%, 2.7% must be
reduced to 1.3%. If the amount specified is greater than
80% but less than 100% of the maximum Taxable Wage Base,
the 2.7% must be reduced to 2.4%.
NOTE: If the Plan is not Top-Heavy or if the Top-Heavy minimum
contribution or benefit is provided under another Plan [see Section
11(c)(ii)] covering the same Employees, sub-
<PAGE>
paragraphs (i) and (ii) above may be disregarded and 5.7%, 4.3% or 5.4%
may be substituted for 2.7%, 1.3% or 2.4% where it appears in (iii)
above.
(iv) Next, any remaining Employer contributions
and forfeitures will be allocated to all
Participants (whether or not they received
an allocation under the preceding
paragraphs) in the ratio that each
Participant's Compensation bears to all
Participants' Compensation.
(g) Additional Employer Contribution-Alternative Integrated
Allocation Formula. [See paragraph (h) and (i)]
The Employer shall have the right to make an additional discretionary
contribution. To the extent that such contributions are sufficient,
they shall be allocated as follows:
______% of each eligible Participant's Compensation plus _____% of
Compensation in excess of the Taxable Wage Base deemed at Section 3(j)
hereof. The percentage on excess compensation may not exceed the lesser
of (i) the amount first specified in this paragraph or (ii) the greater
of 5.7% or the percentage rate of tax under Code Section 311l(a) as in
effect on the first day of the Plan Year attributable to the Old Age
(OA) portion of the OASDI provisions of the Social Security Act. If the
Employer specifies a Taxable Wage Base in Section 3(j) which is lower
than the Taxable Wage Base for Social Security purposes (SSTWB) in
effect as of the first day of the Plan Year, the percentage contributed
with respect to excess Compensation must be adjusted. If the Plan's
Taxable Wage Base is greater than the larger of $10,000 or 20% of the
SSTWB but not more than 80% of the SSTWB, the excess percentage is
4.3%. If the Plan's Taxable Wage Base is greater than 80% of the SSTWB
but less than 100% of the SSTWB, the excess percentage is 5.4%.
NOTE: Only one plan maintained by the Employer may be integrated
with Social Security.
(h) Allocation of Excess Amounts (Annual Additions)
In the event that the allocation formula above results in an
Excess Amount, such excess shall be:
[ ] (i) placed in a suspense account accruing no
gains or losses for the benefit of the
Participant.
[x] (ii) reallocated as additional Employer
contributions to all other Participants to
the extent that they do not have any Excess
Amount.
( i) Minimum Employer Contribution Under Top-Heavy Plans:
For any Plan Year during which the Plan is Top-Heavy, the sum
of the contributions and forfeitures as allocated to eligible
Employees under paragraphs 7(d), 7(e), 7(f), 7(g) and 9 of
this Adoption Agreement shall not be less than the amount
required under paragraph 14.2 of the Basic Plan document #04.
Top-Heavy minimums will be allocated to:
<PAGE>
[x] (i) all eligible Participants.
[ ] (ii) only eligible non-Key Employees who are
Participants.
(j) Return of Excess Contributions and/or Excess Aggregate
Contributions:
In the event that one or more Highly Compensated Employees is
subject to both the ADP and ACP tests and the sum of such
tests exceeds the Aggregate Limit, the limit will be satisfied
by reducing the:
[ ] (i) the ADP of the affected Highly Compensated
Employees.
[x] (ii) the ACP of the affected Highly Compensated
Employees.
[ ] (iii) a combination of the ADP and ACP of the
affected Highly Compensated Employees.
8. ALLOCATIONS TO TERMINATED EMPLOYEES
[x] (a) The Employer will not allocate Employer related
contributions to Employees who terminate during a Plan Year,
unless required to satisfy the requirements of Code Section
401(a)(26) and 410(b). (These requirements are effective for
1989 and subsequent Plan Years.)
[ ] (b) The Employer will allocate Employer matching and other
related contributions as indicated below to Employees who
terminate during the Plan Year as a result of:
MATCHING OTHER
-------- -----
[ ] [ ] (i) Retirement.
[ ] [ ] (ii) Disability.
[ ] [ ] (iii) Death.
[ ] [ ] (iv) Other termination of employment provided
that the Participant has completed
a Year of Service as defined for Allocation
Accrual Purposes.
[ ] [ ] (v) Other termination of employment even though
the Participant has not completed a Year of
Service.
[ ] [ ] (vi) Termination of employment (for any reason)
provided that the Participant had completed
a Year of Service for Allocation Accrual
Purposes.
<PAGE>
9. ALLOCATION OF FORFEITURES
NOTE: Subsections (a), (b) and (c) below apply to forfeitures of
amounts other than Excess Aggregate Contributions.
(a) Allocation Alternatives:
If forfeitures are allocated to Participants, such allocation
shall be done in the same manner as the Employer's
contribution.
[ ] (i) Not Applicable. All contributions are always
fully vested.
[ ] (ii) Forfeitures shall be allocated to
Participants in the same manner as the
Employer's contribution.
If allocation to other Participants is
selected, the allocation shall be as
follows:
[1] Amount attributable to Employer
discretionary contributions and
Top-Heavy minimums will be allocated
to:
[ ] all eligible Participants under
the Plan.
[ ] only those Participants eligible
for an allocation of Employer
contributions in the current
year.
[ ] only those Participants eligible
for an allocation of matching
contributions in the current
year.
[2] Amounts attributable to Employer
Matching contributions will be
allocated to:
[ ] all eligible Participants.
[ ] only those Participants eligible
for allocations of matching
contributions in the current
year.
[ ] (iii) Forfeitures shall be applied to reduce the
Employer's contribution for such Plan Year.
[x] (iv) Forfeitures shall be applied to offset
administrative expenses of the Plan. If
forfeitures exceed these expenses, (iii)
above shall apply.
(b) Date for Forfeitures:
NOTE: If no distribution has been made to a former Participant,
sub-section (i) below will apply to such Participant even if the
Employer elects (ii), (iii), (iv) or (v) below as its normal
administrative policy.
<PAGE>
[ ] (i) Forfeitures shall be applied pursuant to the
selection in (a) above at the end of the
Plan Year during which the former
Participant incurs his or her fifth
consecutive one year Break In Service.
[ ] (ii) Forfeitures shall be applied pursuant to the
selection in (a) above immediately as of the
beginning of the next month.
[x] (iii) Forfeitures shall be applied pursuant to the
selection in (a) above immediately as of the
beginning of the next quarter.
[ ] (iv) Forfeitures shall be applied pursuant to the
selection in (a) above at the end of the
Plan Year during which the former Employee
incurs his or her_ (1st, 2nd, 3rd, or 4th)
consecutive one year Break In Service.
[ ] (v) Forfeitures shall be applied pursuant to the
selection in (a) above immediately as of the
Plan Year end.
(c) Restoration of Forfeitures:
If amounts are forfeited prior to five consecutive 1-year
Breaks in Service, the Funds for restoration of account
balances will be obtained from the following resources in the
order indicated (fill in the appropriate number):
[1] (i) Current year's forfeitures.
[2] (ii) Additional Employer contribution.
[ ] (iii) Income or gain to the Plan.
(d) Forfeitures of Excess Aggregate Contributions shall be:
[x] (i) Applied to reduce Employer contributions for
the Plan Year in which the excess arose, but
allocated under (ii) below to the extent the
excess exceeds the Employer contribution or
the Employer has already contributed for
such Plan Year.
[ ] (ii) Allocated, after all other forfeitures under
the Plan, to the Matching Contribution
account of each non-highly compensated
Participant who made Elective Deferrals or
Voluntary Contributions in the ratio which
each such Participant's Compensation for the
Plan Year bears to the total Compensation of
all Participants for such Plan Year. Such
forfeitures cannot be allocated to the
account of any Highly Compensated Employee.
<PAGE>
NOTE: If (ii) is selected, amounts allocated thereunder must
be included in the ACP Test for the Plan Year in which
allocated to the Participant
Forfeitures of Excess Aggregate Contributions will be so
applied at the end of the Plan Year in which they occur.
10. CASH OPTION
[ ] (a) The Employer may permit a Participant to elect to
defer to the Plan, an amount not to exceed _% of any Employer
paid cash bonus made for such Participant for any year. A
Participant must file an election to defer such contribution
at least fifteen (15) days prior to the end of the Plan Year.
If the Employee fails to make such an election, the entire
Employer paid cash bonus to which the Participant would be
entitled shall be paid as cash and not to the Plan. Amounts
deferred under this section shall be treated for all purposes
as Elective Deferrals. Notwithstanding the above, the election
to defer must be made before the bonus is made available to
the Participant.
[x] (b) Not Applicable.
11. LIMITATIONS ON ALLOCATIONS
[x] This is the only Plan the Employer maintains or ever
maintained, therefore, this section is not applicable.
[ ] The Employer does maintain or has maintained another Plan
(including a Welfare Benefit Fund or an individual medical
account (as defined in Code Section 415(1)(2)), under which
amounts are treated as Annual Additions) and has completed the
proper sections below.
Complete (a), (b) and (c) only if the Employer maintains or
ever maintained another qualified plan, including a Welfare
Benefit Fund or an individual medical account [as defined in
Code Section 415(1)(2)] in which any Participant in this Plan
is (or was) a participant or could possibly become a
participant.
(a) If the Participant is covered under another qualified
Defined Contribution Plan maintained by the Employer, other
than a Master or Prototype Plan:
[ ] (i) the provisions of Article X of the Basic
Plan Document #04 will apply, as if the
other plan were a Master or Prototype Plan.
[ ] (ii) Attach provisions stating the method under
which the plans will limit total Annual
Additions to the Maximum Permissible Amount,
and will properly reduce any Excess Amounts,
in a manner that precludes Employer
discretion.
<PAGE>
(b) If a Participant is or ever has been a participant in a
Defined Benefit Plan maintained by the Employer:
Attach provisions which will satisfy the 1.0 limitation of
Code Section 415(e). Such language must preclude Employer
discretion. The Employer must also specify the interest and
mortality assumptions used in determining Present Value in the
Defined Benefit Plan.
(c) The minimum contribution or benefit required under Code
Section 416 relating to Top-Heavy Plans shall be satisfied by:
[ ] (i) this Plant
[ ] (ii) _____________________(Name of other qualified
plan of the Employer).
[ ] (iii) Attach provisions stating the method under
which the minimum contribution and benefit
provisions of Code Section 416 will be
satisfied. If a Defined Benefit Plan is or
was maintained, an attachment must be
provided showing interest and mortality
assumptions used in the Top-Heavy Ratio.
12. VESTING
Employees shall have a fully vested and nonforfeitable interest in any
Employer contribution and the investment earnings thereon made in
accordance with paragraphs (select one or more options) [ ] 7(c), [ ]
7(e), [ ] 7(f), [ ] 7(g) and [ ] 7(i) hereof. Contributions under
paragraph 7(b), 7(c)(vii) and 7(d) are always fully vested. If one or
more of the foregoing options are not selected, such Employer
contributions shall be subject to the vesting table selected by the
Employer.
Each Participant shall acquire a vested and nonforfeitable percentage
in his or her account balance attributable to Employer contributions
and the earnings thereon under the procedures selected below except
with respect to any Plan Year during which the Plan is Top-Heavy, in
which case the Two-twenty vesting schedule [Option (b)(iv)] shall
automatically apply unless the Employer has already elected a faster
vesting schedule. If the Plan is switched to option (b)(iv), because of
its Top-Heavy status, that vesting schedule will remain in effect even
if the Plan later becomes non-Top-Heavy until the Employer executes an
amendment of this Adoption Agreement indicating otherwise.
(a) Computation Period:
The computation period for purposes of determining Years of
Service and Breaks in Service for purposes of computing a
Participant's nonforfeitable right to his or her account
balance derived from Employer contributions:
[ ] (i) shall not be applicable since Participants
are always fully vested,
[ ] (ii) shall commence on the date on which
an Employee first performs an Hour of Service
for the Employer and each subsequent
12-
<PAGE>
consecutive month period shall commence on
the anniversary thereof, or
[x] (iii) shall commence on the first day of the Plan
Year during which an Employee first performs
an Hour of Service for the Employer and each
subsequent 12 consecutive month period shall
commence on the anniversary thereof.
A Participant shall receive credit for a Year of Service if he or she
completes at least 1,000 Hours of Service [or if lesser, the number of
hours specified at 3 (1)(iii) of this Adoption Agreement] at any time
during the 12-consecutive month computation period. Consequently, a
Year of Service may be earned prior to the end of the 12-consecutive
month computation period and the Participant need not be employed at
the end of the 12-consecutive month computation period to receive
credit for a Year of Service.
(b) Vesting Schedules:
NOTE: The vesting schedules below only apply to a Participant who has
at least one Hour of Service during or after the 1989 Plan Year. If
applicable, Participants who separated from Service prior to the 1989
Plan Year will remain under the vesting schedule as in effect in the
Plan prior to amendment for the Tax Reform Act of 1986.
(i) Full and immediate vesting.
<TABLE>
<CAPTION>
YEARS OF SERVICE
----------------
1 2 3 4 4 6 7
- - - - - - -
<S> <C> <C> <C> <C> <C> <C> <C>
(ii) ____% 100%
(iii) 0% 0% 100%
(iv) ___% 20% 40% 60% 80% 100%
(v) ___% ___% 20% 40% 60% 80% 100%
(vi) 10% 20% 30% 40% 60% 80% 100%
(vii) ___% ___% ___% ___% 100%
(viii) ___% ___% ___% ___% ___% ___% 100%
</TABLE>
NOTE: The percentages selected for schedule (viii) may not be less for any year
than the percentages shown at schedule (v).
[x] All contributions other than those which are fully vested when
contributed will vest under schedule (iii) above.
[ ] Contributions other than those which are fully vested when
contributed will vest as provided below:
<PAGE>
VESTING OPTION TYPE OF EMPLOYER CONTRIBUTION
SELECTED -----------------------------
--------------
_____ 7(c) Employer Match on Salary Savings
_____ 7(c) Employer Match on
Employee Voluntary
_____ 7(e) Employer Discretionary
______ 7(f) & (g) Employer Discretionary-
Integrated
(c) Service disregarded for Vesting:
[x] (i) Not Applicable. All Service shall be
considered.
[ ] (ii) Service prior to the Effective Date of this
Plan or a predecessor plan shall be
disregarded when computing a Participant's
vested and nonforfeitable interest.
[ ] (iii) Service prior to a Participant having
attained age 18 shall be disregarded when
computing a Participant's vested and
nonforfeitable interest.
13. SERVICE WITH PREDECESSOR ORGANIZATION
For purposes of satisfying the Service requirements for eligibility,
Hours of Service shall include Service with the following predecessor
organization(s):
(These hours will also be used for vesting purposes.)
NOTE: Past Service credit may only be given to Employees of a predecessor
employer in situations where there was a transaction between the predecessor
employer and this Plan's Employer in which there was a stock or asset
acquisition, a merger, or similar transaction involving a change in the Employer
of the Employees of a trade or business.
14. ROLLOVER/TRANSFER CONTRIBUTIONS
(a) Rollover Contributions, as described at paragraph 4.3 of
the Basic Plan Document #04, [x] shall [ ] shall not be
permitted. If permitted, Employees [x] may [ ] may not make
Rollover Contributions prior to meeting the eligibility
requirements for participation in the Plan.
(b) Transfer Contributions, as described at paragraph 4.4 of
the Basic Plan Document #04 [x] shall [ ] shall not be
permitted. If permitted, Employees [x] may [ ] may
<PAGE>
not make Transfer Contributions prior to meeting the
eligibility requirements for participation in the Plan.
NOTE: Even if available, the Employer may refuse to accept such
contributions if its Plan meets the safe-harbor rules of paragraph 8.7
of the Basic Plan Document #04.
15. HARDSHIP WITHDRAWALS
Hardship withdrawals, as provided for in paragraph 6.9 of the Basic
Plan Document #04, [x] are [ ] are not permitted. Hardship withdrawals
shall be made from [x] all eligible monies [ ] only from eligible
Employee Elective Deferrals and eligible earnings thereon.
16. PARTICIPANT LOANS
Participant loans, as provided for in paragraph 13.5 of the Basic Plan
Document #04, [x] are [ ] are not permitted. If permitted, repayments
of principal and interest shall be repaid to [x] the Participant's
segregated account or [ ] the general Fund.
17. INSURANCE POLICIES
The insurance provisions of paragraph 13.6 of the Basic Plan Document
#04 [ ] shall [x] shall not be applicable.
18. EMPLOYER INVESTMENT DIRECTION
The Employer investment direction provisions, as set forth in paragraph
13.7 of the Basic Plan Document #04, [x] shall [ ] shall not be
applicable.
19. EMPLOYEE INVESTMENT DIRECTION
(a) The Employee investment direction provisions, as set forth in
paragraph 13.8 of the Basic Plan Document #04, [x] shall [ ]
shall not be applicable.
If applicable, Participants may direct their investments:
[x] (i) among funds offered by the Trustee.
[ ] (ii) among any allowable investments.
(b) Participants may direct the following kinds of contributions
and the earnings thereon (check all applicable):
[ ] (i) All Contributions
[x] (ii) Elective Deferrals
[ ] (iii) Employee Voluntary Contributions (after-tax)
<PAGE>
[ ] (iv) Employee Mandatory Contributions (after-tax)
[ ] (v) Employer Qualified Matching Contributions
[ ] (vi) Other Employer Matching Contributions
[ ] (vii) Employer Qualified Non-Elective
Contributions
[ ] (viii) Employer Discretionary Contributions
[x] (ix) Rollover Contributions
[x] (x) Transfer Contributions
NOTE: To the extent that Employee investment direction was previously
allowed, the Trustee shall have the right to either make the assets
part of the general Trust, or leave them as separately invested subject
to the rights of paragraph 13.8.
20. EARLY PAYMENT OPTION
(a) A Participant who separates from Service prior to retirement,
death or Disability [x] may [ ] may not make application to
the Employer requesting an early payment of his or her vested
account balance.
NOTE: If the above early payment of Vested Account Balances
is selected, either option 21 (a)(i) or 21(a)(ii)
below should also be selected.
(b) A Participant who has attained age 59-1/2 and who has not
separated from Service [x] may [ ] may not obtain a
distribution of his or her vested Employer contributions.
Distribution can only be made if the Participant is 100%
vested.
(c) A Participant who has attained the Plan's Normal Retirement
Age and who has not separated from Service [x] may [ ] may not
receive a distribution of his or her vested account balance.
NOTE: If the Participant has had the right to withdraw his or her
account balance in the past, this right may not be taken away.
Notwithstanding the above, to the contrary, required minimum
distributions will be paid. For timing of distributions, see item 2
1(a) below.
21. DISTRIBUTION OPTIONS
(a) Timing of Distributions:
In cases of termination for other than death, Disability or
retirement, benefits shall be paid:
[ ] (i) As soon as administratively feasible,
following the close of the valuation period
during which a distribution is requested or
is otherwise payable.
<PAGE>
[ ] (ii) As soon as administratively feasible
following the close of the Plan Year during
which a distribution is requested or is
otherwise payable.
[x] (iii) As soon as administratively feasible,
following the date on which a distribution
is requested or is otherwise payable.
[ ] (iv) As soon as administratively feasible, after
the close of the Plan Year during which the
Participant incurs consecutive one-year
Breaks in Service.
[ ] (v) Only after the Participant has achieved the
Plan's Normal Retirement Age, or Early
Retirement Age, if applicable.
In cases of death, Disability or retirement, benefits shall be
paid:
[ ] (vi) As soon as administratively feasible,
following the close of the valuation period
during which a distribution is requested or
is otherwise payable.
[ ] (vii) As soon as administratively feasible
following the close of the Plan Year during
which a distribution is requested or is
otherwise payable.
[x] (viii) As soon as administratively feasible,
following the date on which a distribution
is requested or is otherwise payable.
NOTE: A Participant (and the Participant's spouse, if
applicable) must consent to any distribution if the
Participant's Vested Account Balance exceeds $3,500 or if at
the time of any prior distribution it exceeded $3,500.
(b) Optional Forms of Payment:
[x] (i) Lump Sum.
[ ] (ii) Installment Payments.
[ ] (iii) Life Annuity*.
[ ] (iv) Life Annuity Term Certain*.
Life Annuity with payments guaranteed for
___ years (not to exceed 20 years, specify
all applicable).
[ ] (v) Joint and [ ] 50%, [ ] 66-2/3%, [ ] 75% or
[ ] 100% survivor annuity* (specify all
applicable).
[ ] (vi) Other form(s) specified:
<PAGE>
*Not available in Plan meeting provisions of paragraph 8.7 of
Basic Plan Document #04.
NOTE: Only optional Forms of Payments properly permitted under
a prior plan of the Employer or predecessor Employer may be
selected at subparagraph (b)(vi) above.
(c) Recalculation of Life Expectancy:
In determining required distributions under the Plan, Participants
and/or their Spouse (Surviving Spouse) [x] shall [ ] shall not have the
right to have their life expectancy recalculated annually.
If "shall",
[ ] only the Participant shall be recalculated.
[ ] both the Participant and Spouse shall be recalculated.
[x] who is recalculated shall be determined by the Participant.
22. SPONSOR CONTACT
Employers should direct questions concerning the language contained in
and qualification of the Prototype to:
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
(Job Title) TRUST ADMINISTRATOR
(Phone Number) (407)237-4254
In the event that the Sponsor amends, discontinues or abandons this
Prototype Plan, notification will be provided to the Employer's address
provided on the first page of this Agreement.
23. SIGNATURES:
DUE TO THE SIGNIFICANT TAX RAMIFICATIONS, THE SPONSOR RECOMMENDS THAT
BEFORE YOU EXECUTE THIS ADOPTION AGREEMENT, YOU CONTACT YOUR ATTORNEY
OR TAX ADVISOR, IF ANY.
(a) EMPLOYER:
Name and address of Employer if different than specified in
Section I above.
This agreement and the corresponding provisions of the Plan
and Trust/Custodial Account Basic Plan Document #04 were
adopted by the Employer the 15th day of October 1996
Signed for the Employer by:
Title: Chief Financial Officer
Signature /S/ GERALD S. COOMBS
---------------------------
<PAGE>
THE EMPLOYER UNDERSTANDS THAT ITS FACE TO PROPERLY COMPLETE THE ADOPTION
AGREEMENT MAY RESULT IN DISQUALIFICATION OF ITS PLAN.
Employer's Reliance: The adopting Employer may not rely on an opinion letter
issued by the National Office of the Internal Revenue Service as evidence that
the Plan is qualified under Code Section 401. In order to obtain reliance with
respect to Plan qualification, the Employer must apply to the appropriate Key
District Office for a determination letter.
This Adoption Agreement may only be used in conjunction with Basic Plan Document
#04.
[x] (b) TRUSTEE:
Name of Trustee:
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
The assets of the Fund shall be invested in
accordance with paragraph 13.3 of the Basic Plan
Document #04 as a Trust. As such, the Employer's Plan
as contained herein was accepted by the Trustee the _
day of _ , 19_.
Signed for the Trustee by: BECKY CARROLL
Title: Assistant Vice President and Trust Officer
Signature /S/ BECKY CARROLL
---------------------------
Signature:
---------------------------
[ ](c) CUSTODIAN:
Name of Custodian:
The assets of the Fund shall be invested in accordance with paragraph
13.4 of the Basic Plan Document #04 as a Custodial Account. As such,
the Employer's Plan as contained herein was accepted by the Custodian
the ____day of _____, 19_.
Signed for the Custodian by:
Title:
Signature:
---------------------------
<PAGE>
(d) SPONSOR:
The Employer's Agreement and the corresponding provisions of
the Plan and Trust/Custodial Account Basic Plan Document #04
were accepted by the Sponsor the _ day of __________, 19_.
Signed for the Sponsor by: BECKY CARROLL
Title: Assistant Vice President AND Trust Officer
Signature /S/ BECKY CARROLL
---------------------------
EXHIBIT 5.1
OPINION OF GREENBERG TRAURIG HOFFMAN LIPOFF ROSEN & QUENTEL, P.A.
September 11, 1997
Sano Corporation
3250 Commerce Parkway
Miramar, Florida 33025
RE: REGISTRATION STATEMENT ON FORM S-8 FOR
SANO CORPORATION'S 401(K) PLAN
Ladies and Gentlemen:
On the date hereof, Sano Corporation, a Florida corporation (the
"Company"), sent for filing with the Securities and Exchange Commission (the
"Commission"), a Registration Statement on Form S-8 (the "Registration
Statement"), under the Securities Act of 1933, as amended (the "Act"). The
Registration Statement relates to the Company's 401(k) Plan (the "401(k) Plan").
We have acted as counsel to the Company in connection with the preparation and
filing of the Registration Statement.
In connection therewith, we have examined and relied upon the original
or a copy, certified to our satisfaction, of (i) the Articles of Incorporation
and Bylaws of the Company; (ii) records of corporate proceedings of the Company
authorizing the 401(k) Plan; (iii) the Registration Statement and exhibits
thereto; and (iv) such other documents and instruments as we have deemed
necessary for the expression of the opinions herein contained. In making the
foregoing examinations, we have assumed the genuineness of all signatures and
the authenticity of all documents submitted to us as originals, and the
conformity to original documents of all documents submitted to us as certified
or photostatic copies. As to various questions of fact material to this opinion,
we have relied, to the extent we deemed reasonably appropriate, upon
representations of officers or directors of the Company and upon documents,
records and instruments furnished to us by the Company, without independently
checking or verifying the accuracy of such documents, records and instruments.
Based upon the foregoing examination, we are of the opinion that the
Company presently has available at least 50,000 shares of authorized and
unissued Common Stock from which the 50,000 shares of Common Stock currently
proposed to be distributed under the 401K Plan may be issued. In addition,
assuming that the Company maintains an adequate number of authorized but
unissued shares of Common Stock available for issuance to those persons who are
eligible, and that the consideration for the shares of Common Stock issued
pursuant to the distribution is actually received by the Company as provided in
the 401K Plan, we are of the opinion that the shares of Common Stock issued
pursuant to the 401K Plan, granted under and in accordance with the terms of the
401K Plan will be duly and validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we come
within the category of persons whose consent is required by Section 7 of the Act
or the rules and regulations of the Commission thereunder.
Sincerely,
GREENBERG TRAURIG HOFFMAN
LIPOFF ROSEN & QUENTEL, P.A.
By: /S/ GARY M. EPSTEIN
-----------------------
Gary M. Epstein
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
January 30, 1997 included in the Company's Form 10-K for the year ended December
31, 1996 and to all references to our firm included in this registration
statement.
ARTHUR ANDERSEN LLP
- ----------------------
Miami, Florida,
September 8, 1997
