File No. 33-
As filed with the Securities and Exchange Commission on December 13, 1995
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------------------
TYCO INTERNATIONAL LTD.
(Exact Name of Registrant as Specified in Its Charter)
MASSACHUSETTS 04-2297459
(State or other Jurisdiction of (IRS Employer Identification No.)
Incorporation or Organization)
ONE TYCO PARK, EXETER, NEW HAMPSHIRE 03833
(Address of Principal Executive Offices)
603-778-9700
(Registrant's Telephone Number)
TYCO INTERNATIONAL LTD. RETIREMENT SAVINGS AND INVESTMENT PLANS
(Full Title of the Plan)
-------------------------------------
Mark H. Swartz
Vice President and Chief Financial Officer
TYCO INTERNATIONAL LTD.
ONE TYCO PARK
EXETER, NEW HAMPSHIRE 03833
(Name and Address of Agent for Service)
(603) 778-9700
(Telephone Number, Including Area Code, of Agent for Service)
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Calculation of Registration Fee
- --------------------------------------------------------------------------------
Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities to to be Price Offering Registration
be Registered (1) Registered (2) Per Share Price Fee
- --------------------------------------------------------------------------------
Common Stock,
$0.50 par value 2,000,000 $32.8750 (3) $ 65,750,000 $22,672
- --------------------------------------------------------------------------------
(1) In addition, pursuant to Rule 416(c) under the Securities Act of
1933, as amended (the "Securities Act"), this registration statement
also covers an indeterminate amount of interests to be offered or sold
pursuant to the Tyco International Ltd. Retirement Savings and
Investment Plans, as listed in Part II, Item 3. (2) Plus such
additional number of shares as may be required pursuant to the option
plan in the event of a stock dividend, reverse stock split, split-up,
recapitalization or other similar event. (3) This estimate is made
pursuant to Rule 457(c) and (h) under the Securities Act solely for
purposes of determining the amount of the registration fee and is based
upon the market value of outstanding shares of the Company's common
stock on December 11, 1995, utilizing the average of the high and low
sale prices on the New York Stock Exchange on that date.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
-----------------------------------------------
Tyco International Ltd. (the "Company") and the plans listed below:
- Tyco International Ltd. Retirement Savings and Investment Plan
- Simplex Hourly Employees Retirement Savings and Investment Plan
- Armin Plastics - Division of Tyco International Ltd. Retirement Savings
and Investment Plan for Certain Non-Union Hourly Employees
- Grinnell Corporation Hourly Retirement Savings and Investment Plan
- Mueller Company Decatur Plant Retirement Savings and Investment Plan for
AIW Local 838
- Mueller Co. Chattanooga Plant Retirement Savings and Investment Plan for
Hourly Employees Covered by a Collective Bargaining Agreement
- Mueller Co. Cleveland Plant Retirement Savings and Investment Plan
- Allied Tube & Conduit Corporation Retirement Savings and Investment Plan
- Allied Philadelphia Union Retirement Savings and Investment Plan
- Anvil Products, Inc. Hourly Retirement Savings and Investment Plan
- Grinnell Corporation Columbia Plant Retirement Savings and Investment Plan
for Hourly Employees Covered by a Collective Bargaining Agreement
- Tyco International Ltd. Retirement Savings and Investment Plan for Hourly
Employees Covered by a Collective Bargaining Agreement
(collectively, the "Tyco International Ltd. Retirement Savings and Investment
Plans") hereby incorporate by reference the documents listed below, which have
previously been filed with the Securities and Exchange Commission:
The Company's Annual Report on Form 10-K for the fiscal year ended June
30, 1995; and
The Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1995.
In addition, all documents subsequently filed with the Securities and
Exchange Commission by the Company pursuant to Sections 13(a) and 13(c), Section
14 and Section 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered hereunder
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this registration statement 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.
--------------------------------------
The validity of the shares to be offered hereby will be passed upon for
the Company by M. Brian Moroze, General Counsel and Assistant Secretary of the
Company.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
The Restated Articles of Organization of the Company provide that the
Company shall indemnify certain persons, including directors and officers,
against liabilities, amounts paid in settlement and professional fees and other
disbursements incurred by each such person in connection with any action, suit
or proceeding, civil or criminal,
<PAGE>
brought or threatened in or before any court, tribunal, administrative or
legislative body or agency in which he is involved as a result of his serving or
having served in such position or, at the request of the Company, in certain
positions of any other corporation in which the Company owns shares or of which
it is a creditor. No indemnification shall be provided to an individual with
respect to a matter as to which it shall have been adjudicated that he did not
act in good faith in the reasonable belief that his action was in the best
interests of the Company. In the event that any action, suit or proceeding is
compromised or settled so as to impose any liabilities or obligation upon a
person eligible for indemnification by the Company, no indemnification shall be
provided to him with respect to such matter if the Company has obtained an
opinion of its counsel that with respect to said matter he did not act in good
faith in the reasonable belief that his action was in the best interests of the
Company. The Restated Articles of Organization of the Company further provide
that nothing in them shall limit any lawful rights to indemnification existing
independently of them.
Section 67 of Chapter 156B of the General Laws of the Commonwealth of
Massachusetts provides that a corporation may indemnify any director or officer
(among others) except as to any matter as to which he is adjudicated in any
proceeding not to have acted in good faith in the reasonable belief that his
action was in the best interests of the corporation. Section 67 further provides
that a corporation has the power to purchase and maintain insurance policies on
behalf of any such officer or director against liability incurred by him in such
capacity or arising out of his status as such, whether or not the corporation
has the power to indemnify such officer or director against such liability.
The Company maintains $35,000,000 of insurance to reimburse its
directors and officers for charges and expenses incurred by them for wrongful
acts claimed against them by reason of their being or having been directors or
officers of the Company or any Subsidiary thereof. Such insurance specifically
excludes reimbursement of any director or officer for any charge or expense
incurred in connection with various designated matters, including libel or
slander, illegally obtained personal profits, profits recovered by the Company
pursuant to Section 16(b) of the Exchange Act and deliberate dishonesty.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not Applicable.
Item 8. Exhibits.
--------
(a) The following is a complete list of exhibits filed or incorporated
by reference as part of this registration statement.
Exhibit
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3.1 Restated Articles of Organization, as amended [incorporated by
reference to Exhibit 3(a) to the Company's Annual Report on
Form 10-K for the fiscal year ended May 31, 1987].
3.2 Articles of Amendment dated November 9, 1993, effective
November 10, 1993 [incorporated by reference to Exhibit 3 to
the Company's Current Report on Form 8-K filed on November 12,
1993].
3.3 By-laws [incorporated by reference to Exhibit 3 to the
Company's Current Report on Form 8-K filed on August 17,
1990].
5.1 Opinion of M. Brian Moroze, General Counsel and Assistant
Secretary, as to the legality of the securities being
registered.
10.1a Tyco International Ltd. Retirement Savings and Investment Plan
10.1b Simplex Hourly Employees Retirement Savings and Investment
Plan
10.1c Armin Plastics - Division of Tyco International Ltd.
Retirement Savings and Investment Plan for Certain Non-Union
Hourly Employees
10.1c1 First Amendment to Armin Plastics - Division of Tyco
International Ltd. Retirement Savings and Investment Plan for
Certain Non-Union Hourly Employees
10.1d Grinnell Corporation Hourly Retirement Savings and Investment
Plan
10.1e Mueller Company Decatur Plant Retirement Savings and
Investment Plan for AIW Local 838 - Adoption Agreement
<PAGE>
10.1e1 Attachment to Mueller Company Decatur Plant Retirement Savings
and Investment Plan for AIW Local 838
10.1e2 1993 Addendum to Mueller Company Decatur Plant Retirement
Savings and Investment Plan for AIW Local 838
10.1e3 June 1994 Addendum to Mueller Company Decatur Plant Retirement
Savings and Investment Plan for AIW Local 838
10.1f Mueller Co. Chattanooga Plant Retirement Savings and
Investment Plan for Hourly Employees Covered by a Collective
Bargaining Agreement - Adoption Agreement
10.1f1 Attachment to Mueller Co. Chattanooga Plant Retirement Savings
and Investment Plan for Hourly Employees Covered by a
Collective Bargaining Agreement
10.1f2 1993 Addendum to Mueller Co. Chattanooga Plant Retirement
Savings and Investment Plan for Hourly Employees Covered
by a Collective Bargaining Agreement
10.1g Mueller Co. Cleveland Plant Retirement Savings and Investment
Plan - Adoption Agreement
10.1g1 1993 Addendum to Mueller Co. Cleveland Plant Retirement
Savings and Investment Plan
10.1h Allied Tube & Conduit Corporation Retirement Savings and
Investment Plan - Adoption Agreement
10.1h1 Attachment to Allied Tube & Conduit Corporation Retirement
Savings and Investment Plan
10.1h2 1993 Addendum to Allied Tube & Conduit Corporation Retirement
Savings and Investment Plan
10.1i Allied Philadelphia Union Retirement Savings and Investment
Plan - Adoption Agreement
10.1i1 Attachment to Allied Philadelphia Union Retirement Savings and
Investment Plan
10.1i2 1993 Addendum to Allied Philadelphia Union Retirement Savings
and Investment Plan
10.1j Anvil Products, Inc. Hourly Retirement Savings and Investment
Plan - Adoption Agreement
10.1j1 Attachment to Anvil Products, Inc. Hourly Retirement Savings
and Investment Plan
10.1j2 1993 Addendum to Anvil Products, Inc. Hourly Retirement
Savings and Investment Plan
10.1k Grinnell Corporation Columbia Plant Retirement Savings and
Investment Plan for Hourly Employees Covered by a Collective
Bargaining Agreement - Adoption Agreement
10.1k1 Attachment to Grinnell Corporation Columbia Plant Retirement
Savings and Investment Plan for Hourly Employees
Covered by a Collective Bargaining Agreement
10.1k2 1993 Addendum to Grinnell Corporation Columbia Plant
Retirement Savings and Investment Plan for Hourly
Employees Covered by a Collective Bargaining Agreement
10.1k3 1994 Addendum to Grinnell Corporation Columbia Plant
Retirement Savings and Investment Plan for Hourly Employees
Covered by a Collective Bargaining Agreement
10.1l Tyco International Ltd. Retirement Savings and Investment
Plan for Hourly Employees Covered by a Collective Bargaining
Agreement
10.1l1 First Amendment to Tyco International Ltd. Retirement Savings
and Investment Plan for Hourly Employees Covered by a
Collective Bargaining Agreement
10.1m Goodwin Proctor & Hoar Regional Prototype Defined Contribution
Basic Plan Document
10.2a IRS determination letter for Tyco International Ltd.
Retirement Savings and Investment Plan
10.2b IRS determination letter for Simplex Hourly Employees
Retirement Savings and Investment Plan
10.2c IRS determination letter for Armin Plastics - Division of Tyco
International Ltd. Retirement Savings and Investment
Plan for Certain Non-Union Hourly Employees
10.2d IRS determination letter for Grinnell Corporation Hourly
Retirement Savings and Investment Plan
10.2e IRS determination letter for Mueller Company Decatur Plant
Retirement Savings and Investment Plan for AIW Local 838
<PAGE>
10.2f IRS determination letter for Mueller Co. Chattanooga Plant
Retirement Savings and Investment Plan for Hourly
Employees Covered by a Collective Bargaining Agreement
10.2g IRS determination letter for Mueller Co. Cleveland Plant
Retirement Savings and Investment Plan
10.2h IRS determination letter for Allied Tube & Conduit Corporation
Retirement Savings and Investment Plan
10.2i IRS determination letter for Allied Philadelphia Union
Retirement Savings and Investment Plan
10.2j IRS determination letter for Anvil Products, Inc. Hourly
Retirement Savings and Investment Plan
10.2k IRS determination letter for Grinnell Corporation Columbia
Plant Retirement Savings and Investment Plan for
Hourly Employees Covered by a Collective Bargaining Agreement
10.2l IRS determination letter for Tyco International Ltd.
Retirement Savings and Investment Plan for Hourly Employees
Covered by a Collective Bargaining Agreement
23.1(a) Consent of Counsel (included in Exhibit 5.1 hereto).
23.1(b) Consent of Coopers & Lybrand L.L.P.
23.1(c) Consent of Price Waterhouse LLP
24 Powers of Attorney (included in Part II of this registration
statement).
<PAGE>
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 Securities Act of 1933;
(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; and
(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) herein do 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 undersigned
registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by the reference in the registration
statement;
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, 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; and
(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 Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) 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
Securities Act of 1933 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Town of Exeter, State of New Hampshire, on the 13th day of
December, 1995.
TYCO INTERNATIONAL LTD.
By: /s/ Mark H. Swartz
-----------------------------------
Mark H. Swartz
Vice President - Chief Financial Officer
(Principal Financial and Accounting Officer)
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned
constitutes and appoints L. DENNIS KOZLOWSKI and MARK H. SWARTZ, and each of
them, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign this Registration Statement and all
pre-effective and post-effective amendments, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto such attorneys-in-fact and
agents, and each of them full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that such attorneys-in-fact and
agents or any of them or their or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS ON
DECEMBER 13, 1995 IN THE CAPACITIES INDICATED BELOW.
Chairman of the Board, Chief Executive
/s/ L. Dennis Kozlowski Officer and Director (Principal Executive
- ---------------------------------- Officer)
L. Dennis Kozlowski
/s/ Joshua M. Berman Director
- ----------------------------------
Joshua M. Berman
/s/ Richard S. Bodman Director
- ----------------------------------
Richard S. Bodman
/s/ John F. Fort Director
- ----------------------------------
John F. Fort
/s/ Stephen W. Foss Director
- ----------------------------------
Stephen W. Foss
/s/ Richard A. Gilleland Director
- ----------------------------------
Richard A. Gilleland
/s/ Philip M. Hampton Director
- ----------------------------------
Philip M. Hampton
/s/ Mark H. Swartz Vice President - Chief Financial Officer
- ----------------------------------
Mark H. Swartz
/s/ Frank W. Walsh, Jr. Director
- ----------------------------------
Frank W. Walsh, Jr.
<PAGE>
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE MEMBERS
OF THE TYCO RETIREMENT COMMITTEE, WHICH COMMITTEE IS AUTHORIZED TO TAKE ACTION
ON BEHALF OF AND IN THE NAME OF THE TYCO INTERNATIONAL LTD. RETIREMENT SAVINGS
AND INVESTMENT PLANS HAVE DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED
ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE TOWN OF
EXETER, STATE OF NEW HAMPSHIRE, ON THE 13th DAY OF DECEMBER, 1995.
TYCO INTERNATIONAL LTD.
RETIREMENT COMMITTEE
By: /s/ Barbara S. Miller
-------------------------------------
Barbara S. Miller, Authorized Signatory
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
- ---------- -----------
3.1 Restated Articles of Organization, as amended [incorporated
by reference to Exhibit 3(a) to the Company's Annual Report on
Form 10-K for the fiscal year ended May 31, 1987].
3.2 Articles of Amendment dated November 9, 1993, effective
November 10, 1993 [incorporated by reference to Exhibit 3 to
the Company's Current Report on Form 8-K filed on November 12,
1993].
3.3 By-laws [incorporated by reference to Exhibit 3 to the
Company's Current Report on Form 8-K filed on August 17,
1990].
5.1 Opinion of M. Brian Moroze, General Counsel and Assistant
Secretary, as to the legality of the securities being
registered.
10.1a Tyco International Ltd. Retirement Savings and Investment Plan
10.1b Simplex Hourly Employees Retirement Savings and Investment
Plan
10.1c Armin Plastics - Division of Tyco International Ltd.
Retirement Savings and Investment Plan for Certain Non-Union
Hourly Employees
10.1c1 First Amendment to Armin Plastics - Division of Tyco
International Ltd. Retirement Savings and Investment Plan for
Certain Non-Union Hourly Employees
10.1d Grinnell Corporation Hourly Retirement Savings and Investment
Plan
10.1e Mueller Company Decatur Plant Retirement Savings and
Investment Plan for AIW Local 838 - Adoption Agreement
10.1e1 Attachment to Mueller Company Decatur Plant Retirement
Savings and Investment Plan for AIW Local 838
10.1e2 1993 Addendum to Mueller Company Decatur Plant Retirement
Savings and Investment Plan for AIW Local 838
10.1e3 June 1994 Addendum to Mueller Company Decatur Plant Retirement
Savings and Investment Plan for AIW Local 838
10.1f Mueller Co. Chattanooga Plant Retirement Savings and
Investment Plan for Hourly Employees Covered by a Collective
Bargaining Agreement - Adoption Agreement
10.1f1 Attachment to Mueller Co. Chattanooga Plant Retirement Savings
and Investment Plan for Hourly Employees Covered by a
Collective Bargaining Agreement
10.1f2 1993 Addendum to Mueller Co. Chattanooga Plant Retirement
Savings and Investment Plan for Hourly Employees Covered
by a Collective Bargaining Agreement
10.1g Mueller Co. Cleveland Plant Retirement Savings and Investment
Plan - Adoption Agreement
<PAGE>
10.1g1 1993 Addendum to Mueller Co. Cleveland Plant Retirement
Savings and Investment Plan
10.1h Allied Tube & Conduit Corporation Retirement Savings and
Investment Plan - Adoption Agreement
10.1h1 Attachment to Allied Tube & Conduit Corporation Retirement
Savings and Investment Plan
10.1h2 1993 Addendum to Allied Tube & Conduit Corporation Retirement
Savings and Investment Plan
10.1i Allied Philadelphia Union Retirement Savings and Investment
Plan - Adoption Agreement
10.1i1 Attachment to Allied Philadelphia Union Retirement Savings
and Investment Plan
10.1i2 1993 Addendum to Allied Philadelphia Union Retirement Savings
and Investment Plan
10.1j Anvil Products, Inc. Hourly Retirement Savings and Investment
Plan - Adoption Agreement
10.1j1 Attachment to Anvil Products, Inc. Hourly Retirement Savings
and Investment Plan
10.1j2 1993 Addendum to Anvil Products, Inc. Hourly Retirement
Savings and Investment Plan
10.1k Grinnell Corporation Columbia Plant Retirement Savings and
Investment Plan for Hourly Employees Covered by a Collective
Bargaining Agreement - Adoption Agreement
10.1k1 Attachment to Grinnell Corporation Columbia Plant Retirement
Savings and Investment Plan for Hourly Employees
Covered by a Collective Bargaining Agreement
10.1k2 1993 Addendum to Grinnell Corporation Columbia Plant
Retirement Savings and Investment Plan for Hourly
Employees Covered by a Collective Bargaining Agreement
10.1k3 1994 Addendum to Grinnell Corporation Columbia Plant
Retirement Savings and Investment Plan for Hourly
Employees Covered by a Collective Bargaining Agreement
10.1l Tyco International Ltd. Retirement Savings and Investment Plan
for Hourly Employees Covered by a Collective Bargaining
Agreement
10.1l1 First Amendment to Tyco International Ltd. Retirement Savings
and Investment Plan for Hourly Employees Covered by a
Collective Bargaining Agreement
10.1m Goodwin Proctor & Hoar Regional Prototype Defined Contribution
Basic Plan Document
10.2a IRS determination letter for Tyco International Ltd.
Retirement Savings and Investment Plan
10.2b IRS determination letter for Simplex Hourly Employees
Retirement Savings and Investment Plan
10.2c IRS determination letter for Armin Plastics - Division of Tyco
International Ltd. Retirement Savings and Investment
Plan for Certain Non-Union Hourly Employees
<PAGE>
10.2d IRS determination letter for Grinnell Corporation Hourly
Retirement Savings and Investment Plan
10.2e IRS determination letter for Mueller Company Decatur Plant
Retirement Savings and Investment Plan for AIW Local 838
10.2f IRS determination letter for Mueller Co. Chattanooga Plant
Retirement Savings and Investment Plan for Hourly
Employees Covered by a Collective Bargaining Agreement
10.2g IRS determination letter for Mueller Co. Cleveland Plant
Retirement Savings and Investment Plan
10.2h IRS determination letter for Allied Tube & Conduit Corporation
Retirement Savings and Investment Plan
10.2i IRS determination letter for Allied Philadelphia Union
Retirement Savings and Investment Plan
10.2j IRS determination letter for Anvil Products, Inc. Hourly
Retirement Savings and Investment Plan
10.2k IRS determination letter for Grinnell Corporation Columbia
Plant Retirement Savings and Investment Plan for Hourly
Employees Covered by a Collective Bargaining Agreement
10.2l IRS determination letter for Tyco International Ltd.
Retirement Savings and Investment Plan for Hourly Employees
Covered by a Collective Bargaining Agreement
23.1(a) Consent of Counsel (included in Exhibit 5.1 hereto).
23.1(b) Consent of Coopers & Lybrand L.L.P.
23.1(c) Consent of Price Waterhouse LLP
24 Powers of Attorney (included in Part II of this registration
statement).
EXHIBIT 5.1
December 13, 1995
Tyco International Ltd.
One Tyco Park
Exeter, New Hampshire 03833
Re: Tyco International Ltd. Retirement Savings and Investment Plans
Dear Sirs:
I am General Counsel of Tyco International Ltd., a Massachusetts
corporation (the "Company"). I refer to the registration pursuant to the
Securities Act of 1933, as amended (the "Act"), of 2,000,000 shares of Common
Stock, par value $.50 per share (the "Shares"), of the Company which may be
issued under the Tyco International Ltd. Retirement Savings and Investment Plans
(the "Plans").
I have advised the Company in connection with the registration of the
Shares under the Act. I have examined the Plans; the Restated Articles of
Organization and the By-laws of the Company, each as amended to date; such
records of the corporate proceedings of the Company as I deemed relevant; the
Registration Statement on Form S-8 under the Act relating to the Shares (the
"Registration Statement"); and such other certificates, records and documents as
I considered necessary for the purposes of this opinion. I have also examined
and relied upon representations, statements or certificates of public officials
and officers and representations of the Company.
Based upon the foregoing, I am of the opinion that upon the issuance
and delivery of the Shares in accordance with the terms of the Registration
Statement and the Plans, the Shares will be legally issued, fully paid and
non-assessable shares of the Company's Common Stock. My opinion assumes that all
requisite steps will be taken to comply with the requirements of the Act and
applicable requirements of state laws regulating the offer and sale of
securities.
I am an attorney admitted to practice in the Commonwealth of
Massachusetts and the State of New York. I express no opinion concerning the
laws of any jurisdiction other than the laws of the United States of America,
the Commonwealth of Massachusetts, and the State of New York.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of my name therein. I am delivering this
opinion to the Company, and no other person other than the Company may rely on
it.
Very truly yours,
/s/ M. Brian Moroze
M. Brian Moroze
General Counsel and Assistant Secretary
TYCO INTERNATIONAL LTD.
RETIREMENT SAVINGS AND INVESTMENT PLAN
Amended and Restated as of April 1, 1993
----------------------------------------
<PAGE>
TYCO INTERNATIONAL LTD.
RETIREMENT SAVINGS AND INVESTMENT PLAN
TABLE OF CONTENTS
Page
----
ARTICLE I. DEFINITIONS. . . . . . . . . . . . . . . . . . . . 1
1.01 "AFFILIATED COMPANY" . . . . . . . . . . . . . . . . 1
1.02 "BASIC PARTICIPANT CONTRIBUTIONS". . . . . . . . . . 1
1.03 "BASIC TAX-DEFERRED CONTRIBUTIONS" . . . . . . . . . 1
1.04 "BENEFICIARY". . . . . . . . . . . . . . . . . . . . 2
1.05 "BREAK IN SERVICE" . . . . . . . . . . . . . . . . . 2
1.06 "CODE" . . . . . . . . . . . . . . . . . . . . . . . 2
1.07 "COMMITTEE". . . . . . . . . . . . . . . . . . . . . 2
1.08 "COMPENSATION" . . . . . . . . . . . . . . . . . . . 2
1.09 "COMPUTATION PERIOD" . . . . . . . . . . . . . . . . 4
1.10 "DISABILITY" . . . . . . . . . . . . . . . . . . . . 5
1.11 "EARLY RETIREMENT DATE". . . . . . . . . . . . . . . 5
1.12 "EFFECTIVE DATE" . . . . . . . . . . . . . . . . . . 5
1.13 "ELIGIBLE EMPLOYEE". . . . . . . . . . . . . . . . . 5
1.14 "EMPLOYEE" . . . . . . . . . . . . . . . . . . . . . 6
1.15 "EMPLOYER" . . . . . . . . . . . . . . . . . . . . . 6
1.16 "EMPLOYER ACCOUNT" . . . . . . . . . . . . . . . . . 6
1.17 "EMPLOYER MATCHING CONTRIBUTIONS". . . . . . . . . . 6
1.18 "EMPLOYMENT COMMENCEMENT DATE" . . . . . . . . . . . 6
1.19 "ENTRY DATE" . . . . . . . . . . . . . . . . . . . . 6
1.20 "ERISA". . . . . . . . . . . . . . . . . . . . . . . 6
1.21 "FAMILY MEMBER". . . . . . . . . . . . . . . . . . . 6
1.22 "FORFEITURE DATE". . . . . . . . . . . . . . . . . . 7
1.23 "HIGHLY COMPENSATED EMPLOYEE". . . . . . . . . . . . 7
1.24 "HOUR OF SERVICE". . . . . . . . . . . . . . . . . . 7
1.25 "INVESTMENT FUND". . . . . . . . . . . . . . . . . . 8
1.26 "NORMAL RETIREMENT DATE" . . . . . . . . . . . . . . 8
1.27 "PARTICIPANT". . . . . . . . . . . . . . . . . . . . 8
1.28 "PARTICIPANT ACCOUNT". . . . . . . . . . . . . . . . 8
1.29 "PARTICIPANT CONTRIBUTIONS". . . . . . . . . . . . . 8
1.30 "PLAN" . . . . . . . . . . . . . . . . . . . . . . . 9
1.31 "PLAN ADMINISTRATOR" . . . . . . . . . . . . . . . . 9
1.32 "PLAN YEAR". . . . . . . . . . . . . . . . . . . . . 9
1.33 "PRIOR PLAN ACCOUNT" . . . . . . . . . . . . . . . . 9
1.34 "QUALIFIED NONELECTIVE CONTRIBUTIONS". . . . . . . . 9
1.35 "ROLLOVER ACCOUNT" . . . . . . . . . . . . . . . . . 10
1.36 "SEVERANCE FROM SERVICE" . . . . . . . . . . . . . . 10
(i)
<PAGE>
Page
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1.37 "SERVICE". . . . . . . . . . . . . . . . . . . . . . 10
1.38 "SUPPLEMENTAL PARTICIPANT CONTRIBUTIONS" . . . . . . 11
1.39 "SUPPLEMENTAL TAX-DEFERRED CONTRIBUTIONS". . . . . . 11
1.40 "TAX-DEFERRED ACCOUNT" . . . . . . . . . . . . . . . 11
1.41 "TAX-DEFERRED CONTRIBUTIONS" . . . . . . . . . . . . 11
1.42 "TRUST". . . . . . . . . . . . . . . . . . . . . . . 12
1.43 "TRUSTEE". . . . . . . . . . . . . . . . . . . . . . 12
1.44 "VALUATION DATE" . . . . . . . . . . . . . . . . . . 12
1.45 "VOLUNTARY ACCOUNT". . . . . . . . . . . . . . . . . 12
1.46 "VOLUNTARY PARTICIPANT CONTRIBUTIONS". . . . . . . . 12
1.47 "VOLUNTARY TAX-DEFERRED ACCOUNT" . . . . . . . . . . 12
1.48 "VOLUNTARY TAX-DEFERRED CONTRIBUTIONS" . . . . . . . 12
1.49 "YEAR OF ELIGIBILITY SERVICE". . . . . . . . . . . . 13
ARTICLE II. PLAN PARTICIPATION. . . . . . . . . . . . . . . . 14
2.01 PARTICIPATION. . . . . . . . . . . . . . . . . . . . 14
2.02 CESSATIONS OF PARTICIPATION AND ACTIVE
PARTICIPATION. . . . . . . . . . . . . . . . . . . . 15
2.03 REINSTATEMENT OF ACTIVE PARTICIPATION. . . . . . . . 15
2.04 BREAK IN SERVICE . . . . . . . . . . . . . . . . . . 16
2.05 TRANSFERS OF EMPLOYMENT; CHANGES IN EMPLOYMENT
STATUS.. . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE III. CONTRIBUTIONS. . . . . . . . . . . . . . . . . . 19
3.01 BASIC CONTRIBUTIONS. . . . . . . . . . . . . . . . . 19
3.02 SUPPLEMENTAL CONTRIBUTIONS . . . . . . . . . . . . . 19
3.03 EMPLOYER MATCHING CONTRIBUTIONS. . . . . . . . . . . 21
3.04 FORFEITURES. . . . . . . . . . . . . . . . . . . . . 21
3.05 CHANGES IN LEVEL OF PARTICIPATION. . . . . . . . . . 21
3.06 VOLUNTARY TAX-DEFERRED CONTRIBUTIONS . . . . . . . . 22
3.07 VOLUNTARY PARTICIPANT CONTRIBUTIONS. . . . . . . . . 23
3.08 CERTAIN DISABLED PARTICIPANTS. . . . . . . . . . . . 24
3.09 ROLLOVER CONTRIBUTIONS . . . . . . . . . . . . . . . 25
3.10 DETERMINATION OF CONTRIBUTIONS . . . . . . . . . . . 26
3.11 PAYMENT OF CONTRIBUTIONS . . . . . . . . . . . . . . 26
3.12 FUNDING. . . . . . . . . . . . . . . . . . . . . . . 26
3.13 ELECTION OF INVESTMENTS. . . . . . . . . . . . . . . 26
ARTICLE IV. LIMITATIONS ON CONTRIBUTIONS AND ALLOCATIONS. . . 28
4.01 LIMITATION ON TAX-DEFERRED CONTRIBUTIONS . . . . . . 28
4.02 LIMITATION ON PARTICIPANT AND EMPLOYER MATCHING
CONTRIBUTIONS. . . . . . . . . . . . . . . . . . . . 33
(ii)
<PAGE>
Page
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4.03 QUALIFIED NONELECTIVE CONTRIBUTIONS AND MULTIPLE
USE TEST . . . . . . . . . . . . . . . . . . . . . . 36
4.04 LIMITATIONS ON ANNUAL ADDITIONS. . . . . . . . . . . 37
ARTICLE V. WITHDRAWALS PRIOR TO TERMINATION OF EMPLOYMENT . . 41
5.01 WITHDRAWALS FROM VOLUNTARY ACCOUNTS. . . . . . . . . 41
5.02 WITHDRAWALS FROM VOLUNTARY TAX-DEFERRED
ACCOUNTS . . . . . . . . . . . . . . . . . . . . . . 41
5.03 RESUMPTION OF VOLUNTARY CONTRIBUTIONS. . . . . . . . 43
5.04 PROCEDURE FOR WITHDRAWAL . . . . . . . . . . . . . . 43
5.05 SPOUSAL CONSENT FOR WITHDRAWALS. . . . . . . . . . . 43
ARTICLE VI. VESTING, SEVERANCE FROM SERVICE AND FORFEITURES . 45
6.01 VESTING. . . . . . . . . . . . . . . . . . . . . . . 45
6.02 SEVERANCE FROM SERVICE . . . . . . . . . . . . . . . 45
6.03 FORFEITURES. . . . . . . . . . . . . . . . . . . . . 46
ARTICLE VII. DISTRIBUTIONS AT RETIREMENT, DEATH OR DISABILITY 48
7.01 DISTRIBUTIONS AT RETIREMENT. . . . . . . . . . . . . 48
7.02 AUTOMATIC ANNUITY FORM . . . . . . . . . . . . . . . 50
7.03 DISTRIBUTIONS UPON INCURRING DISABILITY. . . . . . . 52
7.04 DISTRIBUTIONS AT DEATH . . . . . . . . . . . . . . . 52
7.05 LOANS TO PARTICIPANTS. . . . . . . . . . . . . . . . 55
ARTICLE VIII. ADMINISTRATION. . . . . . . . . . . . . . . . . 58
8.01 ALLOCATION OF RESPONSIBILITY . . . . . . . . . . . . 58
8.02 APPOINTMENT OF PLAN ADMINISTRATOR. . . . . . . . . . 58
8.03 CLAIMS PROCEDURE . . . . . . . . . . . . . . . . . . 59
8.04 RECORDS AND REPORTS. . . . . . . . . . . . . . . . . 59
8.06 RULES AND DECISIONS. . . . . . . . . . . . . . . . . 61
8.07 AUTHORIZATION OF BENEFIT PAYMENTS. . . . . . . . . . 61
8.08 APPLICATION AND FORMS FOR BENEFITS . . . . . . . . . 61
8.09 FACILITY OF PAYMENT. . . . . . . . . . . . . . . . . 62
8.10 COMPENSATION OF PLAN ADMINISTRATOR AND PLAN
EXPENSES . . . . . . . . . . . . . . . . . . . . . . 62
8.11 INDEMNIFICATION. . . . . . . . . . . . . . . . . . . 62
ARTICLE IX. MISCELLANEOUS . . . . . . . . . . . . . . . . . . 64
9.01 NONGUARANTEE OF EMPLOYMENT . . . . . . . . . . . . . 64
9.02 RIGHTS OF EMPLOYEES AND BENEFICIARIES. . . . . . . . 64
9.03 NONALIENATION OF BENEFITS. . . . . . . . . . . . . . 64
9.04 DISCONTINUANCE OF EMPLOYER CONTRIBUTIONS . . . . . . 65
(iii)
<PAGE>
Page
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9.05 REVERSION TO EMPLOYER. . . . . . . . . . . . . . . . 65
9.06 COMMENCEMENT AND TIMING OF DISTRIBUTIONS . . . . . . 65
9.07 JURISDICTION . . . . . . . . . . . . . . . . . . . . 68
9.08 LEASED EMPLOYEES . . . . . . . . . . . . . . . . . . 68
9.09 EFFECTIVE DATE . . . . . . . . . . . . . . . . . . . 69
ARTICLE X. AMENDMENTS AND ACTION BY EMPLOYER. . . . . . . . . 71
10.01 AMENDMENTS. . . . . . . . . . . . . . . . . . . 71
10.02 ACTION BY EMPLOYER. . . . . . . . . . . . . . . 71
ARTICLE XI. SUCCESSOR EMPLOYER AND MERGER
OR CONSOLIDATION OF PLANS. . . . . . . . . 72
11.01 SUCCESSOR EMPLOYER. . . . . . . . . . . . . . . 72
11.02 PLAN ASSETS. . . . . . . . . . . . . . . . . . . . 72
ARTICLE XII. PLAN TERMINATION . . . . . . . . . . . . . . . . 73
12.01 RIGHT TO TERMINATE. . . . . . . . . . . . . . . 73
12.02 PARTIAL TERMINATION . . . . . . . . . . . . . . 73
12.03 LIQUIDATION OF THE PLAN . . . . . . . . . . . . 73
12.04 MANNER OF DISTRIBUTION. . . . . . . . . . . . . 74
ARTICLE XIII. DISCHARGE OF DUTIES BY FIDUCIARIES. . . . . . . 75
ARTICLE XIV. TOP-HEAVY PROVISIONS . . . . . . . . . . . . . . 76
14.01 GENERAL RULE. . . . . . . . . . . . . . . . . . 76
14.02 VESTING PROVISIONS. . . . . . . . . . . . . . . 76
14.03 MINIMUM BENEFIT PROVISIONS. . . . . . . . . . . 76
14.04 ADJUSTMENT TO COMBINED PLAN LIMIT . . . . . . . 77
14.05 TOP-HEAVY PLAN DEFINITION . . . . . . . . . . . 77
14.06 KEY EMPLOYEE. . . . . . . . . . . . . . . . . . 79
14.07 NON-KEY EMPLOYEE. . . . . . . . . . . . . . . . 79
14.08 CHANGE FROM TOP-HEAVY STATUS. . . . . . . . . . 79
ARTICLE XV. DIRECT ROLLOVERS. . . . . . . . . . . . . . . . . 80
15.01 APPLICATION OF THIS ARTICLE . . . . . . . . . . 80
15.02 DEFINITIONS . . . . . . . . . . . . . . . . . . 80
Supplement A 82
Supplement B 86
Supplement C 91
Supplement D 96
Supplement E 99
(iv)
<PAGE>
FOREWORD
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Prior to October 1, 1978, Simplex Wire and Cable Company maintained a
defined benefit pension plan, the Retirement Plan for Salaried Employees of
Simplex Wire and Cable Company, for the benefit of its eligible salaried
employees. Effective as of October 1, 1978, this defined benefit plan was
terminated and a new defined contribution plan, the Simplex Salaried Employee
Money Purchase Pension Plan (the "Plan"), was established for the benefit of
eligible salaried employees. Subsequent to October 1, 1978, the Plan was amended
in certain respects.
Effective as of January 1, 1984, the Plan was amended and restated to
consolidate all of such prior amendments into a single plan document and to
effect a number of changes to the Plan. On and after January 1, 1984, the Plan
has consisted of two portions, a money purchase pension plan pursuant to which
the participating employers made all Employer Matching Contributions and a
profit sharing plan pursuant to which the participating employers made all
Tax-Deferred Contributions. The January 1, 1984 amendment and restatement of the
Plan was further designed to facilitate the adoption of the Plan by Tyco
International Ltd. for the benefit of certain of its employees, and to effect
certain other changes in the terms and provisions of the Plan.
Effective as of January 1, 1985, the Plan was amended and restated in its
entirety, to consolidate prior amendments and to effect further changes to the
Plan, in part to comply with relevant changes to the Code and ERISA made by the
Tax Equity and Fiscal Responsibility Act of 1982, the Retirement Equity Act of
1984, and the Deficit Reduction Act of 1984.
<PAGE>
Effective as of January 1, 1988, the Plan is again amended and restated in
its entirety to change the name of the Plan to the Tyco Laboratories, Inc. and
Affiliated Companies Retirement Savings and Investment Plan, to allow basic
after-tax contributions, to make changes to the matching formula of the Plan, to
provide special rules for the merger of the Grinnell Corporation Investment and
Savings Plan for Certain Salaried Employees into the Plan, to make changes
required by the Tax Reform Act of 1986, to change to the elapsed time rule for
measuring vesting credit, and to reflect the establishment of a trust to hold
assets of the Plan.
Effective as of July 1, 1992, the Plan is further amended and restated to
permit participant-directed investments, to reflect the final Section 401(k)
regulations, and to incorporate plan amendments made since January 1, 1988.
Certain amendments made as part of this amendment and restatement have a delayed
effective date.
Effective as of April 1, 1993, the Plan is again amended and restated to
change the eligibility provisions, to add a participant loan provision, to
change the name of the Plan to Tyco International Ltd. Retirement Savings and
Investment Plan and to make other administrative changes. Certain amendments
made as part of this amendment and restatements have a different effective date.
Effective as of January 1, 1994, the two portions of the Plan have been
merged, and the Plan shall consist solely of a profit sharing plan.
<PAGE>
ARTICLE I. DEFINITIONS
-----------------------
1.01 "AFFILIATED COMPANY" means (a) a corporation which, together with Tyco
International Ltd., is a member of a controlled group of corporations (as
defined in Section 414(b) of the Code), (b) a trade or business (whether or not
incorporated) which is under common control (as defined in Section 414(c) of the
Code) with Tyco International Ltd., or (c) a corporation, partnership or other
entity which, together with Tyco International Ltd., is a member of an
affiliated service group (as defined in Section 414(m) of the Code), or (d) an
organization which is required to be aggregated with Tyco International Ltd.
pursuant to regulations promulgated under Section 414(o) of the Code. For
purposes of determining an Employee's Hours of Service, years of Service, Years
of Eligibility Service, and the occurrence of a Break in Service under the Plan,
any period of employment with Tyco International Ltd. or with an Affiliated
Company, including periods of employment with an Affiliated Company or any
predecessor entity prior to the date on which such entity became an Affiliated
Company if the Employee is employed by such entity on the date of acquisition,
shall be recognized.
1.02 "BASIC PARTICIPANT CONTRIBUTIONS" shall mean the after-tax basic
contributions paid by a Participant (a) prior to January 1, 1984 in accordance
with the provisions of the Plan as then in effect; (b) after December 31, 1983
as a result of the Code Section 415 limitations set forth in Section 4.04; or
(c) after July 1, 1987 in accordance with the provisions of Section 3.01(b) of
the Plan. Prior to January 1, 1994, the Basic Participant Contributions were
made under the money purchase portion of the Plan.
1.03 "BASIC TAX-DEFERRED CONTRIBUTIONS" shall mean the contributions made
by the Employer for each Participant pursuant to Section 3.01(a) of the Plan
which are made on account of a salary adjustment agreement with such
Participant.
<PAGE>
1.04 "BENEFICIARY" shall mean the person(s) or other recipient(s)
designated in accordance with the provisions of Article VII hereof to receive
any death benefit which may become payable under this Plan, and includes the
surviving spouse of a Participant who is deemed to be a designated Beneficiary
pursuant to Section 7.02 or 7.04(b).
1.05 "BREAK IN SERVICE" on and after January 1, 1987, shall mean a twelve
(12) consecutive month period during which the Employee does not perform any
Hours of Service for the Employer or any Affiliated Company. Prior to January 1,
1987, the term "Break in Service" shall have the same meaning as defined in this
Plan as in effect immediately prior to January 1, 1987. In the case of any
Employee who is absent from work for maternity or paternity reasons, the
twelve-consecutive month period beginning on the first anniversary of the first
date of such absence shall not constitute a Break in Service. For purposes of
this paragraph, an absence from work for maternity or paternity reasons means an
absence from work by reason of pregnancy, birth or adoption of a child, or for
purposes of caring for such child during a period beginning immediately
following such birth or adoption.
1.06 "CODE" shall mean the Internal Revenue Code of 1986, and any
amendments thereto, and any rulings and regulations thereunder.
1.07 "COMMITTEE" shall mean the Retirement Committee appointed pursuant to
Article VIII hereof.
1.08 "COMPENSATION" shall mean:
(a) direct cash compensation for the previous calendar year paid to a
Participant by the Employer for services rendered, including salaries, overtime
pay, commissions, bonuses, amounts realized when restricted stock held by the
Participant
2
<PAGE>
becomes freely transferable or is no longer subject to a substantial
risk of forfeiture, and any amounts which would have been paid to the
Participant as cash compensation but for an election by such Participant under
Section 125 or 401(k) of the Code, but excluding any other form of direct and
indirect remuneration, any amounts paid from the Tyco International, Ltd.
Deferred Compensation Plan, and other forms of contributions or benefits under
this Plan.
(b) notwithstanding (a) above, for (i) any Participant entering the
Plan on or after his 55th birthday, (ii) any former Participant whose status as
an active Participant is reinstated upon his reemployment pursuant to Section
2.03, (iii) any former Employee who becomes an active Participant upon his
reemployment pursuant to Section 2.03, and (iv) with respect to Employees who
become Participants for the first time on or after April 1, 1993, Compensation
for the first year of participation or first year of reinstatement of active
participation (and the second year of participation or reinstatement of active
participation if the Participant does not have a full year of employment during
his first year of participation or reinstatement) shall mean the Participant's
annualized rate of base compensation on his Employment Commencement Date (or
date of reemployment). In the case of an hourly Employee, compensation shall be
annualized based on 2,000 hours. For succeeding years of participation,
Compensation shall be as stated in (a) above.
(c) For Plan Years beginning after December 31, 1988, a Participant's
Compensation for any Plan Year shall not be taken into account, to the extent
that such Compensation exceeds $200,000, subject to cost-of-living adjustments
made by the Secretary of Treasury or his delegate. In determining the
Compensation of a Participant for purposes of this $200,000 limitation, the
rules of Section 414(q)(6) of Code shall apply, except that in
3
<PAGE>
applying such rules, the term "family" shall include only the spouse of the
Participant and any lineal descendants of the Participant who have not attained
age 19 before the close of the Plan Year. If, as a result of the application of
such rules, the adjusted $200,000 limitation is exceeded, then the limitation
shall be prorated among the affected individuals in proportion to each such
individual's Compensation as determined under this Section prior to application
of the limitation.
In addition to other applicable limitations set forth in the Plan, and
notwithstanding any other provision of the Plan to the contrary, for Plan Years
beginning on or after January 1, 1994, the annual Compensation of each employee
taken into account under the Plan shall not exceed the OBRA '93 annual
compensation limit. The OBRA '93 annual compensation limit is $150,000, as
adjusted by the Commissioner for increases in the cost of living in accordance
with Section 401(a)(17)(B) of the Code. The cost-of-living adjustment in effect
for a calendar year applies to any period, not exceeding twelve (12) months,
beginning in such calendar year over which compensation is determined
(determination period). If a determination period consists of fewer than twelve
(12) months, the OBRA '93 annual compensation limit will be multiplied by a
fraction, the numerator of which is the number of months in the determination
period, and the denominator of which is twelve (12).
For Plan Years beginning on or after January 1, 1994, any reference in this
Plan to the limitation under Section 401(a)(17) of the Code shall mean the OBRA
'93 annual compensation limit set forth in this provision.
1.09 "COMPUTATION PERIOD" shall mean the twelve (12) consecutive month
period commencing on the Employee's Employment Commencement Date (or date of
4
<PAGE>
reemployment in the case of an Employee who is reemployed after incurring one or
more Breaks in Service) and each anniversary thereof.
1.10 "DISABILITY" shall mean a Participant's permanent and total incapacity
of engaging in any employment for the Employer for physical or mental reasons.
Disability shall be deemed to exist only when such Participant meets either the
requirements for disability benefits under the Social Security law then in
effect, or the requirements for disability benefits under the Employer's long
term disability plan.
1.11 "EARLY RETIREMENT DATE" shall mean the date on which a Participant,
subject to the further provisions of this Section 1.11, terminates employment
and is entitled to a distribution of his accounts in accordance with Article
VII. A Participant's Early Retirement Date may occur on the first day of any
month coincident with or following his 55th birthday.
1.12 "EFFECTIVE DATE" shall generally mean, unless otherwise provided
elsewhere herein or in Section 9.09, April 1, 1993, being the effective date of
this amendment and restatement of the Plan.
1.13 "ELIGIBLE EMPLOYEE" shall mean any Employee of an Employer who, on or
after the effective date of the adoption of this Plan by the Employer, is a
member of a class of employees which has been designated by the Board of
Directors of such Employer or the Committee as eligible to participate in this
Plan. Leased employees are not eligible to participate in this Plan. Except as
otherwise provided in Appendix D, Employees covered by a collective bargaining
agreement are not eligible to participate in this Plan unless specifically
provided for in the collective bargaining agreement.
5
<PAGE>
1.14 "EMPLOYEE" shall mean any individual who is receiving remuneration for
services rendered to Tyco International Ltd., or any Affiliated Company as a
common law employee.
1.15 "EMPLOYER" shall mean Tyco International Ltd., and any Affiliated
Company which adopts this Plan.
1.16 "EMPLOYER ACCOUNT" shall mean that portion of a Participant's interest
in the money purchase pension plan portion of the Plan which is attributable to
the Employer Matching Contributions made on his behalf hereunder.
1.17 "EMPLOYER MATCHING CONTRIBUTIONS" shall mean the contributions
required to be made by the Employer pursuant to Section 3.03. Such contributions
are in addition to the Tax-Deferred Contributions required to be made by the
Employer pursuant to salary adjustment agreements.
1.18 "EMPLOYMENT COMMENCEMENT DATE" shall mean the date the
Employee first performs an Hour of Service for the Employer or an Affiliated
Company.
1.19 "ENTRY DATE" shall mean January 1 or July 1 through March 31,
1993 and shall mean January 1, April 1, July 1 or October 1 from April 1,
1993 onwards.
1.20 "ERISA" shall mean Public Law No. 93-406, the Employee Retirement
Income Security Act of 1974, and any amendments thereto and any rulings and
regulations thereunder.
1.21 "FAMILY MEMBER" shall mean, on or after January 1, 1987, the spouse or
lineal ascendants or descendants (and their spouses) of an Employee who owns (or
is considered to own within the meaning of Section 318 of the Code) more than 5%
of the outstanding stock of the Employer or an Affiliated Company or who is a
member of a group
6
<PAGE>
consisting of the ten (10) Highly Compensated Employees paid the greatest
Compensation during the Plan Year.
1.22 "FORFEITURE DATE" shall mean, effective January 1, 1993, the date the
Participant ceases to be an Employee. A Participant who has no vested interest
in his Employer Account shall be deemed to be cashed-out of his Employer Account
on his Forfeiture Date.
1.23 "HIGHLY COMPENSATED EMPLOYEE" shall mean, on or after January 1, 1987,
any person who is a "highly compensated employee" within the meaning of Section
414(q) of the Code and the regulations promulgated thereunder. In making this
determination, the Committee may elect to make the look-back year calculation
for a determination year on the basis of the calendar year ending with or within
the applicable determination year.
1.24 "HOUR OF SERVICE" shall mean"
(a) Each hour for which an Employee is paid, or entitled to payment,
for the performance of duties for the Employer. These hours shall be
credited to the Employee for the Computation Period in which the duties are
performed;
(b) Each hour for which an Employee is paid, or entitled to payment,
by the 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. No more than 501 Hours of Service
shall be credited under this paragraph for any single continuous period of
absence for which no duties are performed (whether or not such period occurs in
a single Computation Period). Hours under this paragraph shall be
7
<PAGE>
calculated and credited pursuant to Section 2530.200b-2(b) and (c) of the
Department of Labor Regulations which are incorporated herein by this reference;
(c) Each hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by the Employer. The same Hours of
Service shall not be credited both under paragraphs (a) or (b), as the case may
be, and under this paragraph (c). These hours shall be credited to the Employee
for the Computation Period for which the award, agreement or payment is made.
1.25 "INVESTMENT FUND" or "INVESTMENT FUNDS" shall mean such one or more
investment vehicles, including but not limited to mutual funds and fixed income
insurance contracts, which the Plan Administrator may from time to time, in its
sole discretion, specify as being available for the investment of Trust assets
at the direction of the Participants.
1.26 "NORMAL RETIREMENT DATE" shall mean a Participant's sixty-fifth (65th)
birthday.
1.27 "PARTICIPANT" shall mean any Eligible Employee who elects to
participate in the Plan in accordance with the provisions of Article II hereof
or who has funds in the Plan maintained for his benefit.
1.28 "PARTICIPANT ACCOUNT" shall mean that portion of a Participant's
interest in the profit sharing portion of the Plan which is attributable to his
Basic and Supplemental Participant Contributions.
1.29 "PARTICIPANT CONTRIBUTIONS" shall mean and include a Participant's
Basic Participant Contributions, Supplemental Participant Contributions and
Voluntary Participant Contributions, collectively.
8
<PAGE>
1.30 "PLAN" shall mean the Tyco International Ltd. Retirement Savings and
Investment Plan as set forth herein and as amended from time to time hereafter.
The Plan shall consist of two portions, a money purchase pension plan and a
profit sharing plan. All references to the Plan on or after January 1, 1984
shall include both such money purchase pension plan and such profit sharing
plan. The Plan was formerly known as the Tyco Laboratories, Inc. and Affiliated
Companies Retirement Savings and Investment Plan and the Simplex Salaried
Employee Retirement Plan. Prior to 1984, the Plan was known as the Simplex
Salaried Employee Money Purchase Pension Plan.
1.31 "PLAN ADMINISTRATOR" shall mean the Committee, or its successor(s),
who shall have those responsibilities of administering the Plan as set forth in
Article VIII hereof.
1.32 "PLAN YEAR" shall mean the twelve (12) month period commencing on any
January 1, and ending on the succeeding December 31.
1.33 "PRIOR PLAN ACCOUNT" shall mean that portion of a Participant's
interest in the Plan which is attributable to withdrawable contributions
transferred to this Plan from a prior plan.
1.34 "QUALIFIED NONELECTIVE CONTRIBUTIONS" shall mean contributions made by
the Employer on behalf of a Participant that (i) the Participant may not elect
to receive in cash until distributed from the Plan, (ii) is 100% vested and
nonforfeitable when made, and (iii) is not distributed from the Plan to the
Participant or his Beneficiary before the earlier of his separation from
service, death, Disability or the occurrence of any such events described in
Section 9.06(f), clauses (ii), (iii) or (iv). Qualified Nonelective
Contributions shall be allocated to a Participant's Tax Deferred Account.
9
<PAGE>
1.35 "ROLLOVER ACCOUNT" shall mean that portion of a Participant's interest
in this Plan which is attributable to amounts which are attributable to any
rollover contributions which the Participant made to the Plan pursuant to
Section 3.09.
1.36 "SEVERANCE FROM SERVICE" means the earlier of the date on which an
Employee terminates employment, retires or dies, or the first anniversary of the
first day of absence (with or without pay) for any other reason. Transfers of an
Employee between and among Affiliated Companies, including Tyco International
Ltd., will not result in a Severance from Service.
1.37 "SERVICE" of an Employee shall mean the sum of the following:
(a) With respect to Service of such Employee on or after January 1,
1987, a period of time commencing with such Employee's Employment Commencement
Date (in the case of an Employee who is not employed on January 1, 1987) or
commencing with the 1987 anniversary of his Employment Commencement Date (in the
case of an Employee who is employed on January 1, 1987), and ending on the date
of the Employee's next following Severance from Service. In the case of an
Employee who performs an Hour of Service for the Employer or an Affiliated
Company within twelve (12) months of the date of his Severance from Service, his
period of Service shall include the period following his Severance from Service
and, in such event, said Severance from Service shall be disregarded for all
purposes of the Plan. Periods of Service which are not successive shall be
aggregated. For vesting purposes, credit shall be given only for whole years and
(after aggregating as provided above), any remaining fraction of a year shall be
disregarded.
(b) With respect to Service of such Employee prior to the 1987
anniversary of his Employment Commencement Date, each Computation Period during
which such
10
<PAGE>
Employee is credited with at least 1,000 Hours of Service (including
years prior to the adoption of this Plan by the Employer).
(c) An Employee whose employment is terminated after January 1, 1987
after being credited with 1,000 Hours of Service in his Computation Period which
begins in 1987 shall receive credit under the Plan for at least one (1) year of
Service for such period of Service.
1.38 "SUPPLEMENTAL PARTICIPANT CONTRIBUTIONS" shall mean the
after-tax supplemental contributions paid by a Participant under the Plan (a)
prior to January 1, 1984 in accordance with the provisions of the Plan as then
in effect; (b) after December 31, 1983 as a result of the Code Section 415
limitations set forth in Section 4.03; or (c) after July 1, 1987 in accordance
with the provisions of Section 3.02(b) of the Plan. Prior to January 1, 1994,
the Supplemental Participant Contributions were made when the money purchase
portion of the Plan.
1.39 "SUPPLEMENTAL TAX-DEFERRED CONTRIBUTIONS" shall mean the
contributions made by the Employer for eligible Participants pursuant to Section
3.02(a) of the Plan which are made on account of a salary adjustment agreement
with each such Participant.
1.40 "TAX-DEFERRED ACCOUNT" shall mean that portion of a Participant's
interest in the Plan which is attributable to his Basic and Supplemental
Tax-Deferred Contributions and his Qualified Nonelective Contributions.
1.41 "TAX-DEFERRED CONTRIBUTIONS" shall mean and include a Participant's
Basic Tax-Deferred Contributions, Supplemental Tax-Deferred Contributions and
Voluntary Tax-Deferred Contributions, collectively.
11
<PAGE>
1.42 "TRUST" means the trust created by an agreement between Tyco
International Ltd. and the Trustee for purposes of holding Plan assets.
1.43 "TRUSTEE" means the trustee duly designated under the trust agreement
and any duly appointed successor trustee or trustees.
1.44 "VALUATION DATE" shall mean the last business day of each month
through September 30, 1993 and from October 1, 1993 onwards shall mean each
business day of the Plan Year on which the New York Stock Exchange is open or
any other date the Committee shall designate.
1.45 "VOLUNTARY ACCOUNT" shall mean that portion of a Participant's
interest in the Plan which is attributable to his Voluntary Participant
Contributions. This account, together with the Participant's Participant
Account, shall be treated as a separate contract for purposes of Section 72(d)
of the Code.
1.46 "VOLUNTARY PARTICIPANT CONTRIBUTIONS" shall mean the voluntary
after-tax contributions made to the Plan by a Participant pursuant to Section
3.07. Prior to January 1, 1994, the Voluntary Participant Contributions were
made under the money purchase portion of the Plan.
1.47 "VOLUNTARY TAX-DEFERRED ACCOUNT" shall mean the portion of a
Participant's interest in the profit sharing portion of the Plan which is
attributable to his Voluntary Tax-Deferred Contributions.
1.48 "VOLUNTARY TAX-DEFERRED CONTRIBUTIONS" shall mean the
contributions made by the Employer for eligible Participants pursuant to Section
3.06 of the Plan which are made on account of a salary adjustment agreement with
each such Participant.
12
<PAGE>
1.49 "YEAR OF ELIGIBILITY SERVICE" shall mean each Computation Period
during which an Employee is credited with at least 1,000 Hours of Service with
the Employer.
Wherever used herein, a pronoun in the masculine gender shall be considered
as including the feminine gender unless the context clearly indicates otherwise.
13
<PAGE>
ARTICLE II. PLAN PARTICIPATION
-------------------------------
2.01 PARTICIPATION. Each Eligible Employee who was actively participating
in the Plan on March 31, 1993 shall be eligible to continue as a Participant in
this Plan on April 1, 1993, and each other Eligible Employee, including each
future Eligible Employee, shall be eligible to become a Participant in this Plan
as of the Entry Date which coincides with or immediately follows the latest of:
(a) the effective date of the adoption of this Plan by the Employer
of the Eligible Employee;
(b) the date which is the 90th day after the Eligible Employee's
Employment Commencement Date;
(c) the Eligible Employee's 21st birthday (18th birthday on and
after July 1, 1994); and
(d) the date the Employee becomes an Eligible Employee.
Notwithstanding the provision of subsection (b) above, with respect to an
Eligible Employee employed at the Twitchell location, such Eligible Employee
shall not be eligible to become a Participant in the Plan until the Entry Date
which coincides with or immediately follows the completion of one (1) Year of
Eligibility Service by such Eligible Employee and the satisfaction of the
provisions of subsections (a), (c), and (d) above.
The Plan Administrator shall notify each Eligible Employee on or before the
date he is first eligible to participate, and shall supply each such Eligible
Employee with an application form on which to apply for inclusion in the Plan
and to authorize the Employer to adjust his salary in consideration of the Basic
Tax-Deferred Contributions to be made to the Plan by the Employer on his behalf
and/or to authorize the Employer to make regular payroll
14
<PAGE>
deductions of his Basic Participant Contributions. Upon notification of
eligibility and receipt of an application, an Eligible Employee shall have 31
days (or such shorter period as the Plan Administrator may specify) in which to
return the completed application to the Plan Administrator who shall, in turn,
notify the Employer to begin making the necessary salary adjustments and Basic
Tax-Deferred Contributions and/or payroll deductions and Basic Participant
Contributions in accordance with Article III hereof. If an Eligible Employee
should elect not to be included in the Plan during such period, he may elect to
become a Participant on the Entry Date coincident with or next following the
date he has completed and returned said application to the Plan Administrator.
If, however, an Eligible Employee is hired on or after his 55th birthday or an
Employee becomes an Eligible Employee on or after his 55th birthday, he shall be
eligible to commence participation in this Plan on the first day of the month
following his date of hire or the date he becomes an Eligible Employee,
whichever is later.
2.02 CESSATIONS OF PARTICIPATION AND ACTIVE PARTICIPATION.
Participant shall become an inactive Participant as of his Severance from
Service. He shall remain an inactive Participant until the date on which the
balance of his accounts are distributed to him, at which time he shall cease to
be a Participant.
2.03 REINSTATEMENT OF ACTIVE PARTICIPATION. If a Participant becomes an
inactive Participant or ceases to be such altogether and he is subsequently
reemployed by the Employer as an Eligible Employee or if a former Eligible
Employee terminates employment after fulfilling the eligibility requirements of
Section 2.01 but prior to enrolling in the Plan and he is subsequently
reemployed by the Employer as an Eligible Employee, he shall recommence active
participation in this Plan upon his date of
15
<PAGE>
reemployment or if he so elects, on a subsequent Entry Date, provided he
agrees to adjust his salary in return for the Employer making equivalent Basic
Tax-Deferred Contributions to the Plan on his behalf and/or to authorize the
Employer to make payroll deductions of his Basic Participant Contributions. An
Eligible Employee who became an inactive Participant by virtue of his attainment
of Normal Retirement Date shall recommence active participation in this Plan on
January 1, 1988, or if he so elects, on a subsequent Entry Date, provided he
agrees to adjust his salary in return for the Employer making equivalent Basic
Tax-Deferred Contributions to the Plan on his behalf and/or to authorize the
Employer to make payroll deductions of his Basic Participant Contributions.
2.04 BREAK IN SERVICE. The following shall apply to all Employees or
Participants who are reemployed after incurring a Break in Service:
(a) Employees or Participants Who Were Vested In Their Employer
-----------------------------------------------------------
Accounts. With respect to an Employee or Participant who was vested in his
Employer Account prior to his termination of employment, his prior years of
Service shall be fully restored upon reemployment.
(b) Employees or Participants Who Were Not Vested In Their Employer
---------------------------------------------------------------
Accounts.
- --------
(i) With respect to an Employee or Participant who
incurred a Break in Service prior to January 1, 1985 and who was not vested
in his Employer Account prior to his termination of employment, his prior
years of Service shall be fully restored upon reemployment only if the
number of his consecutive Breaks in Service is less than the aggregate
number of years of Service completed prior to the Break in Service. If such
Employee's or Participant's number of consecutive Breaks
16
<PAGE>
in Service equals or exceeds the aggregate number of years of Service
completed prior to the Break in Service, his prior years of Service shall
be forfeited and he shall be treated as a new Employee for vesting purposes
and for purposes of determining his eligibility to make Supplemental
Contributions.
(ii) With respect to an Employee or Participant who incurs
a Break in Service on or after January 1, 1985 and who was not vested in
his Employer Account prior to his termination of employment, his prior
years of Service, and Years of Eligibility Service shall be fully restored
upon reemployment only if the number of his consecutive Breaks in Service
is less than the greater of five (5) or the aggregate number of years of
Service before such break. If such Employee's or Participant's number of
consecutive Breaks in Service equals or exceeds the greater of five (5) or
the aggregate number of years of Service before such break, his prior years
of Service shall be forfeited and he shall be treated as a new Employee for
vesting purposes and for purposes of determining his eligibility to make
Supplemental Contributions.
2.05 TRANSFERS OF EMPLOYMENT; CHANGES IN EMPLOYMENT
STATUS. If an individual should transfer his employment from a non-participating
Affiliated Company to the Employer or if an individual should change the status
of his employment with the Employer and, in either case, he thereby becomes an
Eligible Employee, then for purposes of determining the Compensation of such an
Eligible Employee, compensation paid by such non-participating Affiliated
Company shall be included as if it had been paid by an Employer. If an Eligible
Employee should transfer his employment from the Employer to a non-participating
Affiliated Company or if an Eligible Employee should change the status of his
employment with the Employer and, in either case, he thereby ceases
17
<PAGE>
to be an Eligible Employee, he shall cease to be an active Participant as of the
day on which such transfer or change in status occurs, but he shall not be
deemed to have incurred a Severance from Service, and he shall not be entitled
to receive a distribution from the Plan until his actual Severance from Service.
18
<PAGE>
ARTICLE III. CONTRIBUTIONS
---------------------------
3.01 BASIC CONTRIBUTIONS. Each Participant shall make basic contributions
to the Plan which shall entitle him to be credited with Employer Matching
Contributions. Basic contributions may be made in the form of Basic Tax-Deferred
Contributions or Basic Participant Contributions. Subject to the limitations set
forth in Article IV, for each Plan Year, the total amount of Basic Tax-Deferred
Contributions or Basic Participant Contributions which shall be made by or on
behalf of each Participant shall be equal to one percent (1%) of his
Compensation.
(a) Basic Tax-Deferred Contributions. A Participant may elect to have
--------------------------------
the Employer make Basic Tax-Deferred Contributions to the Plan on his behalf by
agreeing to adjust his compensation by an amount equal to the amount of such
Basic Tax-Deferred Contributions. Basic Tax-Deferred Contributions shall be
credited to the Participant's Tax-Deferred Account.
(b) Basic Participant Contributions. A Participant may elect to make
-------------------------------
Basic Participant Contributions to the Plan by authorizing the Employer to make
regular payroll deductions equal to the amount of such Basic Participant
Contributions. Basic Participant Contributions shall be credited to the
Participant's Participant Account.
3.02 SUPPLEMENTAL CONTRIBUTIONS. After a Participant has completed ten (10)
years of Service, he may elect to make supplemental contributions to the Plan
which shall entitle him to be credited with additional Employer Matching
Contributions on the Entry Date coincident with or next following his completion
of ten (10) years of Service. Supplemental contributions may be made in the form
of Supplemental Tax-Deferred Contributions or Supplemental Participant
Contributions. Subject to the limitations set forth
19
<PAGE>
in Article IV, for each Plan Year, the maximum amount of Supplemental
Tax-Deferred Contributions and Supplemental Participant Contributions which may
be made by or on behalf of a Participant shall be equal to the whole number
percentage of the Participant's Compensation which has been elected by the
Participant, but such percentage shall not exceed the maximum percentage
applicable to such Participant. The maximum percentage applicable to a
Participant shall be determined in accordance with the following schedule, based
on the number of years of Service completed by the Participant.
Years of Maximum
Service Supplemental Contributions
-------- --------------------------
10-19 1%
20-24 2%
25-29 3%
30 or more 4%
(a) Supplemental Tax-Deferred Contributions. A Participant eligible
---------------------------------------
for supplemental contributions under this Section 3.02 may elect to have the
Employer make Supplemental Tax-Deferred Contributions to the Plan on his behalf
by agreeing to a further downward adjustment in his Compensation equal to the
amount of such Supplemental Tax-Deferred Contributions. Supplemental
Tax-Deferred Contributions shall be credited to the Participant's Tax-Deferred
Account.
(b) Supplemental Participant Contributions. A Participant eligible for
--------------------------------------
supplemental contributions under this Section 3.02 may elect to make
Supplemental Participant Contributions to the Plan by authorizing the Employer
to make regular payroll deductions equal to the amount of such Supplemental
Participant Contributions. Supplemental Participant Contributions shall be
credited to the Participant's Participant Account.
20
<PAGE>
3.03 EMPLOYER MATCHING CONTRIBUTIONS. Unless otherwise provided in a
supplement attached hereto, for each Plan Year, Employer Matching Contributions
shall be made on behalf of each Participant in an amount equal to the sum of (a)
five (5) times the amount of Basic Tax-Deferred Contributions and/or Basic
Participant Contributions made by or on behalf of such Participant for such Plan
Year; and (b) the amount of Supplemental Tax-Deferred Contributions and/or
Supplemental Participant Contributions made by or on behalf of such Participant
for such Plan Year. Employer Matching Contributions shall be credited to the
Participant's Employer Account.
3.04 FORFEITURES. Amounts forfeited under Section 6.03 by Participants upon
termination of their employment with the Employer shall be reapplied in such a
way as to reduce future Employer Matching Contributions under the Plan.
3.05 CHANGES IN LEVEL OF PARTICIPATION. A Participant may elect to change
the amount of his salary adjustment and/or payroll deduction and the
corresponding Supplemental Tax-Deferred Contributions and/or Supplemental
Participant Contributions by or on his behalf to any other amount permissible
for such Participant under Section 3.02 as of any Entry Date. The Participant's
election to change his amount of salary adjustment and/or payroll deduction must
be made in writing to the Plan Administrator at least 30 days prior to the date
on which the charge is to be effective. A Participant may elect to suspend
salary adjustment and/or payroll deduction and the corresponding Basic and
Supplemental Tax-Deferred Contributions and/or Basic and Supplemental
Participant Contributions made by or on his behalf as of the first day of any
month. A Participant's election to suspend such contributions must be made in
writing to the Plan Administrator at least 30 days prior to the first day of any
month in which the suspension is to be made effective. A Participant who
21
<PAGE>
suspends contributions pursuant to the foregoing proviso may resume
contributions as of any Entry Date which succeeds the date of suspension by at
least three (3) months, by means of written notice to the Plan Administrator at
least 30 days prior to the date on which the resumption is to be effective.
3.06 VOLUNTARY TAX-DEFERRED CONTRIBUTIONS. If a Participant is
making Basic Tax-Deferred Contributions pursuant to Section 3.01, he may elect
to have the Employer make Voluntary Tax-Deferred Contributions to the Plan on
his behalf each year, but only if such Participant has agreed to a further
downward adjustment in his compensation equal to the amount of such Voluntary
Tax-Deferred Contributions.
For each Plan Year, the amount of Voluntary Tax-Deferred Contributions
shall be equal to the dollar amount or percentage of the Participant's
Compensation which has been elected by the Participant. Notwithstanding the
foregoing, in the case of a Participant whose Compensation was in excess of
$60,000, the amount of his Voluntary Tax-Deferred Contributions, when added to
his Voluntary Participant Contributions, may not exceed ten percent (10%) of his
Compensation. In the case of a Participant whose Compensation was $60,000 or
less, the amount of his Voluntary Tax-Deferred Contributions, when added to all
of his basic, supplemental, and voluntary contributions, may not exceed the
limitations of Section 4.04. Voluntary Tax-Deferred Contributions shall be
credited to the Participant's Voluntary Tax-Deferred Account.
A Participant may elect to change the amount of Voluntary Tax-Deferred
Contributions on his behalf as of any Entry Date; provided, however, that a
Participant may elect to suspend salary adjustment pursuant to this Section 3.06
and the Voluntary Tax-Deferred Contributions on his behalf as of the first day
of any month. A Participant's
22
<PAGE>
election to change the rate of Voluntary Tax-Deferred Contributions or to
suspend such contributions must be made in writing to the Plan Administrator at
least 30 days prior to the date on which the change or suspension is to be made
effective. A Participant who suspends Voluntary Tax-Deferred Contributions on
his behalf pursuant to the foregoing proviso may elect to resume such
contribution as of any Entry Date which succeeds the date of suspension by at
least three (3) months, by means of written notice to the Plan Administrator at
least 30 days prior to the date on which the resumption is to be effective.
3.07 VOLUNTARY PARTICIPANT CONTRIBUTIONS. If a Participant is making Basic
Contributions pursuant to Section 3.01, he may elect to make after-tax Voluntary
Participant Contributions to the Plan by executing an application authorizing
the Employer to make regular payroll deductions of said Voluntary Participant
Contributions. A Participant may elect to make Voluntary Participant
Contributions in any dollar amount or percentage of his Compensation.
Notwithstanding the foregoing, in the case of a Participant whose Compensation
was in excess of $60,000, the amount of his Voluntary Participant Contributions,
when added to his Voluntary Tax-Deferred Contributions, may not exceed ten
percent (10%) of his Compensation. In the case of a Participant whose
Compensation was $60,000 or less, the amount of his Voluntary Participant
Contributions, when added to all his other basic, supplemental and voluntary
contributions, may not exceed the limitations of Section 4.04.
Voluntary Participant Contributions shall be made by means of payroll
deductions and the amounts so deducted shall be credited to the Participant's
Voluntary Account.
The Participant may elect to change the amount of his Voluntary Participant
Contributions as of any Entry Date, subject to the limitations set forth in the
first paragraph
23
<PAGE>
of this Section 3.07. The Participant's election to change the
amount of his Voluntary Participant Contributions must be made in writing to the
Plan Administrator at least 30 days prior to the date on which the change is to
be made effective.
The Participant may elect to suspend all of his Voluntary Participant
Contributions by means of written notice to the Plan Administrator at least 30
days prior to the first day of the month in which the Participant wishes the
suspension to be made effective. The Participant may elect to resume Voluntary
Participant Contributions as of any Entry Date which succeeds the date of
suspension by at least three (3) months. Such election to resume Voluntary
Participant Contributions must be made in writing to the Plan Administrator at
least 30 days prior to the date on which the resumption is to be made effective.
3.08 CERTAIN DISABLED PARTICIPANTS. If a Participant in the Plan becomes
disabled so as to be eligible to receive long-term disability benefits under the
Employer's Long-Term Disability Plan (the "LTD Plan"), such Participant shall
continue to be a Participant hereunder. Pursuant to the terms of the LTD Plan,
the Employer shall contribute to the Plan on behalf of such disabled Participant
an annual amount equal to the Applicable Percentage for such Participant times
the Participant's Compensation during the Plan Year immediately preceding the
date his disability begins. The Applicable Percentage for any Participant shall
be a percentage equal to the sum of the percentage rates of Basic Tax-Deferred,
Basic Participant, Supplemental Tax-Deferred, Supplemental Participant and
Employer Matching Contributions on such Participant's behalf immediately prior
to his disability plus the percentage rate of Voluntary Tax-Deferred and
Voluntary Participant Contributions being made by such Participant six (6)
months prior to his disability, but in no event shall the Applicable Percentage
exceed 15%. For purposes of determining the
24
<PAGE>
percentage rate of Employer Matching Contributions on a Participant's behalf
immediately prior to his disability, the Plan Administrator shall follow the
provisions of Section 3.03. All amounts contributed for a disabled Participant
pursuant to this Section 3.08 shall be credited to the Employer Account of such
Participant. A disabled Participant shall continue to be entitled to receive
contributions under the Plan pursuant to this Section 3.08 as long as, and to
the extent that, the Employer is required under the LTD Plan to make such
contributions pursuant to the terms of said plan; provided, however, that if
such a Participant withdraws all or any portion of the amount credited to his
Voluntary Account and/or his Voluntary Tax-Deferred Account pursuant to Article
V, his Applicable Percentage shall be reduced to a percentage rate equal to the
sum of the percentage rates of Basic Tax-Deferred, Basic Participant,
Supplemental Tax-Deferred, Supplemental Participant and Employer Matching
Contributions on such Participant's behalf immediately prior to his disability;
and provided, further, that if such a Participant's accounts under the Plan are
distributed in a lump sum payment or applied to the purchase of an annuity
contract, or if such a Participant becomes actively employed in any capacity
(including without limitation part-time or rehabilitative employment), his
Applicable Percentage shall be reduced to zero. All contributions pursuant to
this Section 3.08 shall be fully vested and nonforfeitable at all times.
3.09 ROLLOVER CONTRIBUTIONS. With the consent of the Plan Administrator, an
Eligible Employee may rollover Eligible Rollover Distributions he may have
received from another retirement plan and trust qualified as an exempt employee
benefit plan and trust under Sections 401(a) and 501(a) of the Code. Such
Eligible Employee may also rollover distributions from an individual retirement
account or individual retirement annuity which consists of prior lump sum
distributions or Eligible Rollover Distributions
25
<PAGE>
from a qualified employee benefit plan and trust. All such amounts shall be
credited to his Rollover Account and shall be fully vested and nonforfeitable at
all times.
3.10 DETERMINATION OF CONTRIBUTIONS. The amount of Employer Matching
Contributions and Tax-Deferred Contributions shall be subject to final
determination by the Plan Administrator. The amount of such contributions, as
determined by the Plan Administrator, shall be conclusive and binding on all
persons.
3.11 PAYMENT OF CONTRIBUTIONS. The Employer Matching Contributions for each
Plan Year shall be made at such time or times as the Employer determines but not
later than the time required by law in order for the Employer to obtain a
deduction of the amount of such payment for Federal income tax purposes as
determined under the applicable provisions of the Code. All other contributions
made with respect to a pay period shall be paid into the Plan by the Employer no
later than 30 days after the last day of such pay period.
3.12 FUNDING. Tyco International Ltd. has entered into a trust agreement
with a Trustee, creating a Trust for the purpose of holding Plan assets and
providing benefits under the Plan. All contributions made by Participants or the
Employer under the Plan shall be invested in the Investment Funds and such other
investment vehicles as specifically provided in the trust agreement and shall be
held, managed and disposed of by the Trustee in accordance with the provisions
of the trust agreement for purposes contemplated by the Plan.
3.13 ELECTION OF INVESTMENTS.
(a) Effective as of July 1, 1992, each Participant, including a former
Participant whose account balances are still retained in the Trust, shall elect
the manner of investment of all amounts standing to the credit of his accounts
in the Trust among the
26
<PAGE>
Investment Funds established under the Trust. By such
election, the Participant shall direct the portion of the aggregate amount then
credited, and/or thereafter to be credited, to his accounts which is to be
invested by the Trustee in each of the Investment Funds, such to such rules and
regulations imposed by the Plan Administrator from time to time. The Plan
Administrator shall maintain records of account at all times adequately
reflecting each Participant's interest in each of the Investment Funds.
(b) A Participant may revoke his election as to any amounts then
standing in, and/or thereafter to be credited to, his accounts at such time or
times and in such manner as the Plan Administrator determines on a uniform basis
for all Participants, and may make a new investment election in accordance with
this Section 3.13. In the event that such a new election causes a transfer of
assets from one Investment Fund to another, the transfer shall be made by the
Trustee as soon as reasonably possible.
(c) To make an investment election, each Participant shall give notice
to the Plan Administrator in such form and at such time as the Plan
Administrator may reasonably require. To be effective, such an investment
election must be in accordance with any and all rules and regulations
established by the Plan Administrator for this purpose.
(d) Any investment election made hereunder shall continue to be
effective until properly revoked by the Participant.
(e) The Employer, the Plan Administrator and the Trustee shall have no
responsibility for the investment elections of the Participants and shall incur
no liability on account of investing the assets of the Trust in accordance with
such elections.
27
<PAGE>
ARTICLE IV. LIMITATIONS ON CONTRIBUTIONS AND ALLOCATIONS
---------------------------------------------------------
4.01 LIMITATION ON TAX-DEFERRED CONTRIBUTIONS.
(a) The aggregate Tax-Deferred Contributions made by the Employer for
each fiscal year shall not exceed that amount which, when added to the Employer
Matching Contributions made by the Employer for that fiscal year, equals the
maximum amount allowable as a deduction by the Employer under Section 404 of the
Code for such fiscal year.
(b) The aggregate Tax-Deferred Contributions made by the Employer for
any Participant under this Plan and all other plans maintained by the Employer
or an Affiliated Company for any calendar year shall not exceed $7,000, subject
to cost-of-living adjustments made by the Secretary of Treasury or his delegate
pursuant to Section 402(g)(5) of the Code. In the event that a Participant has
entered into a salary adjustment agreement with the Employer which authorizes
the Employer to make Basic, Supplemental and/or Voluntary Tax-Deferred
Contributions in excess of the dollar limitation set forth in the preceding
sentence, the Participant shall be deemed to have elected to make after-tax
Basic, Supplemental and/or Voluntary Participant Contributions equal to the
amount of such excess. Such after-tax contributions shall be effected by means
of payroll deduction and shall be credited to the Participant Account and/or
Voluntary Account, as the case may be, of such Participant.
(c) At any time during the Plan Year, the Employer may suspend or
reduce the amount of Tax-Deferred Contributions with respect to any Highly
Compensated Employee on a prospective basis if the Plan Administrator determines
that such suspension or reduction is necessary to cause the test in either (i)
or, to the extent not prohibited by
28
<PAGE>
regulations promulgated by the Secretary of Treasury, (ii) below to be met with
respect to Tax-Deferred Contributions for such Plan Year:
(i) the Actual Deferral Percentage for the Highly
Compensated Employees eligible for Tax-Deferred Contributions is not more
than the Actual Deferral Percentage for all other Employees eligible for
Tax-Deferred Contributions multiplied by 1.25; or
(ii) the excess of the Actual Deferral Percentage for the Highly
Compensated Employees eligible for Tax-Deferred Contributions over the
Actual Deferral Percentage for all other Employees eligible for
Tax-Deferred Contributions is not more than two (2) percentage points, and
the Actual Deferral Percentage for the Highly Compensated Employees is not
more than the Actual Deferral Percentage for all other Employees eligible
for Tax-Deferred Contributions multiplied by two (2). All determinations
required under this subsection (c) shall be made by the Plan
Administrator and its determinations shall be final and binding on all persons.
(d) For the purposes of subsection (c) above, the "Actual Deferral
Percentage" for a specified group of Employees for a Plan Year shall be the
average of the ratios (calculated separately for each Employee in such group and
expressed as a percentage) of (i) the amount of the Tax-Deferred Contributions
actually paid over to the Plan on behalf of the Employee for such Plan Year to
(ii) the Employee's "total compensation" for such Plan Year. If the Employer
elects to make Qualified Nonelective Contributions to the Plan, the Plan
Administrator may include any such contributions allocated to a Participant's
Tax-Deferred Account in determining the Participant's Actual Deferral
Percentage. For purposes of this subsection (d) and Section 4.02, "total
compensation" means the amount of
29
<PAGE>
compensation paid by the Employer to the Participant during the Plan Year (or
portion thereof in which the Participant is eligible to participate in the Plan)
which is required to be reported as wages on the Participant's Form W-2 plus the
amount which would have been paid to the Participant as cash compensation but
for an election by such Participant under Section 125 or 401(k) of the Code. The
"total compensation" taken into account with respect to a Participant for any
Plan Year shall not exceed the dollar limitation set forth in Section 401(a)(17)
of the Code, subject to cost-of-living adjustments made by the Secretary of
Treasury or his delegate.
(e) In determining the deferral percentage of a Highly Compensated
Employee who has a Family Member who is an Employee, the Tax-Deferred
Contributions made on behalf of such Highly Compensated Employee and the total
compensation of such Highly Compensated Employee shall include the Tax-Deferred
Contributions and total compensation of the Family Member, and the Family Member
shall not be considered a separate Employee for purposes of determining the
Actual Deferral Percentage for any group under the Plan to the extent required
by Section 414(q) of the Code and any regulations promulgated thereunder;
(f) If the Plan satisfies the requirements of Section 401(k),
401(a)(4) or 410(b) of the Code (other than the average benefit percentage test)
only if aggregated with one or more other qualified plans, or if one or more
other plans satisfy such requirements only if aggregated with this Plan, then
this Section 4.01 shall be applied by determining the Actual Deferral Percentage
of Employees as if all such plans were a single plan.
Notwithstanding the above requirements, for Plan Years beginning after December
31, 1989,
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<PAGE>
plans may be aggregated to satisfy Section 401(k) of the Code only if they have
the same Plan Year.
(g) In the event the Tax-Deferred Contributions actually made on
behalf of Highly Compensated Employees exceed the limitations set forth in
subsection (c) above, and the Employer does not elect to make Qualified
Nonelective Contributions to the Plan, the Plan Administrator shall direct the
Trustee to reduce such contributions of such Highly Compensated Employees in
order of their deferral percentages, beginning with the highest of such
percentages, to the extent necessary to cause the Plan to meet such limitations.
Such reduction shall be made first with respect to Voluntary Tax-Deferred
Contributions, then (if and to the extent necessary) with respect to
Supplemental Tax-Deferred Contributions, and lastly (if and to the extent
necessary) with respect to Basic Tax-Deferred Contributions. Any reduction of
Basic and Supplemental Tax-Deferred Contributions shall also be accompanied by a
reduction of the associated Employer Matching Contributions and such
contributions shall be forfeited and applied to reduce future Employer Matching
Contributions. Any Tax-Deferred Contributions so reduced, as adjusted for income
or losses allocable thereto in accordance with Section 4.01(h) below, shall be
distributed to the Highly Compensated Employees on whose behalf such
contributions were made as soon as practicable, but no later than December 31 of
the following Plan Year.
(h) The income or loss allocable to a Participant's Basic,
Supplemental and Voluntary Tax-Deferred Contributions which exceed the
limitation of subsection (c) above shall be determined by multiplying the
investment gain or loss of such Participant's Tax-Deferred Account and Voluntary
Tax-Deferred Account, as the case may be, for such Plan Year by a fraction. The
numerator of this fraction is the amount of the Participant's
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<PAGE>
excess Basic, Supplemental and Voluntary Tax-Deferred Contributions to be
distributed and the denominator is the amount credited to the Participant's
Tax-Deferred Account and Voluntary Tax-Deferred Account, as the case may be, as
of the beginning of the Plan Year, increased by the Basic, Supplemental or
Voluntary Tax-Deferred Contributions allocable to the applicable account for
such Plan Year.
(i) If, during any Plan Year, more than the maximum permissible amount
under Section 402(g) of the Code is allocated pursuant to one or more cash or
deferred arrangements to a Participant's accounts under this Plan and any other
plan described in Sections 401(k), 408(k), or 403(b) of the Code, the following
provisions shall apply:
(i) No later than March 1 of the next succeeding Plan
Year, the Participant may, but is not required to, allocate all or part of
such contributions in excess of the maximum permissible amount ("excess
deferrals") to this Plan. To be effective, such allocation must be in
writing, state that excess deferrals have been made on behalf of such
Participant for the preceding Plan Year, and be submitted to the Plan
Administrator.
(ii) To the extent a Participant timely allocates excess
deferrals to this Plan pursuant to (i) above, the Plan Administrator shall
direct the Trustee to distribute such excess deferral, as adjusted for
income or losses as determined in accordance with subsection (h) above, to
the Participant no later than the April 15 following such allocation.
32
<PAGE>
4.02 LIMITATION ON PARTICIPANT AND EMPLOYER MATCHING
CONTRIBUTIONS.
(a) At any time during the Plan Year, the Employer may suspend or
reduce the amount of Participant Contributions and Employer Matching
Contributions with respect to any Highly Compensated Employee if the Plan
Administrator determines that such suspension or reduction is necessary to cause
the test in either (i) or, to the extent not prohibited by regulations
promulgated by the Secretary of the Treasury, (ii) below to be met with respect
to such contributions for such Plan Year:
(i) the Actual Contribution Percentage for the Highly
Compensated Employees eligible to participate in the Plan is not more than
the Actual Contribution Percentage for all other Employees eligible to
participate in the Plan multiplied by 1.25; or
(ii) the excess of the Actual Contribution Percentage for the
Highly Compensated Employees eligible to participate in the Plan over the
Actual Contribution Percentage for all other Employees eligible to
participate in the Plan is not more than two (2) percentage points, and the
Actual Contribution Percentage for the Highly Compensated Employees
eligible to participate in the Plan is not more than the Actual
Contribution Percentage for all other Employees eligible to participate in
the Plan multiplied by two (2).
(b) For purposes of subsection (a) above, the "Actual Contribution
Percentage" for a specified group of Employees for a Plan Year shall be the
average of the ratios (calculated separately for each Employee in such group and
expressed as a percentage) of (i) the sum of Participant Contributions and
Employer Matching Contributions actually
33
<PAGE>
paid over to the Plan on behalf of the Employee for such Plan Year to (ii) the
Employee's "total compensation" for the Plan Year (as defined in Section 4.01(d)
above). To the extent permitted by applicable regulations, the Plan
Administrator may include the Basic, Supplemental or Voluntary Tax-Deferred
Contributions of a Participant who is not a Highly Compensated Employee in
determining his Actual Contribution Percentage, to the extent that such
contributions are not used in determining his Actual Deferral Percentage. If the
Employer elects to make Qualified Nonelective Contributions to the Plan, the
Plan Administrator may include any such contributions allocated to a
Participant's Tax-Deferred Account in determining the Participant's Actual
Contribution Percentage.
(c) In determining the contribution percentage of a Highly Compensated
Employee who has a Family Member who is an Employee, the Participant
Contributions made by, the Employer Matching Contributions made on behalf of,
and the "total compensation" of such Highly Compensated Employee shall include
the Participant Contributions, Employer Matching Contributions, and "total
compensation" of his Family Member, and the Family Member shall not be
considered a separate Employee for purposes of determining the Actual
Contribution Percentage for any group under the Plan to the extent required by
Section 414(q) of the Code and any regulations promulgated thereunder.
(d) If the Plan satisfies the requirements of Section 401(m),
401(a)(4) or 410(b) of the Code (other than the average benefit percentage test)
only if aggregated with one or more other qualified plans, or if one or more
other plans satisfy such requirements only if aggregated with this Plan, then
this Section 4.02 shall be applied by determining the Actual Contribution
Percentage of Employees as if all such plans were a single plan. Notwithstanding
the above requirements, for Plan Years beginning after December 31, 1989,
34
<PAGE>
plans may be aggregated to satisfy Section 401(m) of the Code only if they have
the same Plan Year.
(e) If, for any Plan Year, the Plan Administrator determines that the
Actual Contribution Percentage for the Highly Compensated Employees exceeds the
limitation set forth in this Section 4.02 and the Employer does not elect to
make Qualified Nonelective Contributions to the Plan, the Plan Administrator
shall direct the Trustee to distribute to the Highly Compensated Employees, in
order of their contribution percentages beginning with the highest of such
percentages, the amount necessary to cause the Plan to meet such limitation.
Such reduction shall be made first with respect to Voluntary Participant
Contributions, next with respect to Employer Matching Contributions, then with
respect to Supplemental Participant Contributions and lastly with respect to
Basic Participant Contributions. Any reduction of Basic and Supplemental
Participant Contributions shall also be accompanied by a reduction of the
associated Employer Matching Contributions, if any, and such contributions shall
be forfeited and shall be applied to reduce future Employer Matching
Contributions. Any Participant Contributions and Employer Matching Contributions
so reduced, as adjusted for income or loss thereto in accordance with Section
4.02(f) below, shall be distributed to the Highly Compensated Employee on whose
behalf such contributions were made as soon as practicable but no later than
December 31 of the following Plan Year.
(f) The income or loss allocable to a Participant's Participant
Contributions or Employer Matching Contributions which exceed the limitations
set forth in subsection (a) above shall be determined by multiplying the
investment gain or loss of such Participant's Voluntary Account, Participant
Account or Employer Account, as the case may be, for such
35
<PAGE>
Plan Year by a fraction. The numerator of this fraction is the amount of the
Participant's excess Participant Contributions or excess Employer Matching
Contributions to be distributed and the denominator is the amount credited to
the Participant's Voluntary Account, Participant Account or Employer Account, as
the case may be, as of the beginning of the Plan Year, increased by the
Participant Contributions or Employer Matching Contributions allocable to the
applicable account for such Plan Year.
4.03 QUALIFIED NONELECTIVE CONTRIBUTIONS AND MULTIPLE USE
TEST.
(a) The Employer may elect to make Qualified Nonelective
Contributions, which shall be considered, to the extent necessary, in conducting
the nondiscrimination tests of Sections 4.01 and 4.02. Such contributions (i)
may be made as a uniform percentage of Compensation or as a uniform dollar
amount contributed on a per capita basis, (ii) may be made for all or certain of
those Participants who are not Highly Compensated Employees, and (iii) may be
made at any time prior to the end of the 12-month period immediately following
the Plan Year to which such contributions relate. Qualified Nonelective
Contributions under this Section shall be allocated to the appropriate
Participants' Tax-Deferred Accounts which shall be fully vested and
nonforfeitable at all times.
(b) The contributions made by or on behalf of a Highly Compensated
Employee shall be further reduced and returned to such Employee to the extent
necessary to comply with rules and regulations of the Internal Revenue Service
promulgated to prevent the multiple use of the alternative limitation set forth
in Section 4.01(c)(ii) and Section 4.02(a)(ii).
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<PAGE>
(c) To the extent permitted by Treasury regulations, the Plan
Administrator may restructure the Plan into component plans for purposes of
conducting the nondiscrimination tests of Sections 4.01 and 4.02.
4.04 LIMITATIONS ON ANNUAL ADDITIONS.
(a) All annual additions made under the provisions of Article III or
this Article IV with respect to any Participant in any Limitation Year shall be
limited to the lesser of:
(i) Thirty thousand dollars ($30,000) (or, if greater,
one-fourth of the defined benefit dollar limitation as set forth in Section
415(b)(1) of the Code, as adjusted beginning in 1988 pursuant to Section
415(d) of the Code), or
(ii) 25% of the Participant's Compensation (determined in
accordance with Treasury Regulations Section 1.415-2(d)(11)(i)) for such
Limitation Year. For purposes of this Section 4.04, the term "annual
addition" shall mean the sum of:
(A) Tax-Deferred Contributions, including amounts returned
to the Participant pursuant to Section 4.01(e) but excluding amounts
returned to the Participant pursuant to Section 4.01(i),
(B) Employer Matching Contributions plus forfeitures,
including amounts forfeited or returned to the Participant pursuant to
Section 4.02,
(C) Contributions made pursuant to Section 3.08,
(D) Participant Contributions, including amounts returned to
the Participant pursuant to Section 4.02, plus
37
<PAGE>
(E) Qualified Nonelective Contributions.
For purposes of this Section 4.04, in the case of a Participant who is
permanently and totally disabled and who is not a Highly Compensated Employee,
the term "Participant's Compensation" shall mean the compensation the
Participant would have received for the year if the Participant were paid at the
rate of compensation paid immediately before becoming permanently and totally
disabled. If the case of a Participant who is permanently and totally disabled
and who is a Highly Compensated Employee, the term "Participant's Compensation"
shall be determined in accordance with Treasury Regulations Section
1.415-2(d)(2)(i).
In any case where a Participant is, or has been, included in a
tax-qualified defined benefit plan of the Employer or any Affiliated Company,
the sum of such Participant's defined benefit plan fraction and defined
contribution plan fraction shall not exceed one (1) for any Plan Year, and the
annual additions to such Participant's accounts under this Plan shall be further
limited to the extent necessary to comply with such combined plan limit.
The defined benefit plan fraction of a Participant for any Plan Year is a
fraction, the numerator of which is the projected annual normal retirement
benefit of such Participant under such defined benefit plan determined as of the
close of such Plan Year and the denominator of which is the lesser of:
(i) the product of 1.25 multiplied by the dollar
limitation in effect for such Limitation Year under Section 415(b)(1)(A)
of the Code; or
(ii) the product of 1.4 multiplied by such Participant's
highest three (3) years' average compensation (as defined by Section 415 of
the Code).
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<PAGE>
The defined contribution plan fraction of a Participant for any Limitation
Year is a fraction, the numerator of which is the aggregate amount as of the
close of such Limitation Year of the annual additions credited to such
Participant's accounts under the Plan and the denominator of which is the sum of
the lesser of the following amounts determined for such Limitation Year and each
prior Limitation Year of Service with the Employer or any Affiliated Company:
(i) the product of 1.25 multiplied by the dollar
limitation in effect for the Limitation Year under Section 415(c)(1)(A) of
the Code; or
(ii) the product of 1.4 multiplied by 25% of such
Participant's Compensation (defined in accordance with Treasury Regulations
Section 1.415-2(d)(11)(i)) for the Limitation Year.
If the foregoing limit is applicable to a Participant for a Plan Year, the Plan
Administrator shall reduce the annual additions to his accounts in the following
order of priority:
(1) against the Participant Contributions to the Plan for
the Limitation Year;
(2) against the Tax-Deferred Contributions made on behalf of
such Participant, the amount of such reduction to be held unallocated
and applied to reduce future Tax-Deferred Contributions under the Plan
for such Participant in the succeeding Limitation Year;
(3) against the Employer Matching Contributions (including
forfeitures) made on behalf of the Participant, the amount
of such reduction to
39
<PAGE>
be held unallocated and applied to reduce Employer Matching
Contributions to the Plan in the succeeding Limitation Year.
For the Limitation Year beginning in January 1, 1994 and all future
Limitation Years, Tax-Deferred Contributions that represent an excess annual
addition shall be returned to the Participant and earnings attributable to
the returned Participant Contributions and Tax-Deferred Contributions shall
also be returned to the Participant. For purposes of this Section 4.04, the
Limitation Year shall be the Plan Year.
40
<PAGE>
ARTICLE V. WITHDRAWALS PRIOR TO TERMINATION OF EMPLOYMENT
----------------------------------------------------------
5.01 WITHDRAWALS FROM VOLUNTARY ACCOUNTS. Subject to the
requirements of Section 5.05, a Participant may, at any time prior to the
distribution of his Voluntary Account, elect to withdraw a cash amount equal to
all or a specified portion of the value of such account. The Participant's
election to withdraw must be made in writing to the Plan Administrator and such
request must specify the amount to be withdrawn.
5.02 WITHDRAWALS FROM VOLUNTARY TAX-DEFERRED ACCOUNTS.
Subject to the requirements of Section 5.05, a Participant may, at any time
prior to the distribution of his Voluntary Tax-Deferred Account, request to
withdraw a cash amount equal to all or a specified portion of the value of such
account. Effective January 1, 1989, the maximum amount which a Participant may
withdraw from his Voluntary Tax-Deferred Account pursuant to the rules of this
Section 5.02 shall not exceed the balance in his Voluntary Tax-Deferred Account
as of December 31, 1988 plus all Voluntary Tax-Deferred Contributions allocated
to said account after such date. The Participant's request to withdraw must be
made in writing to the Plan Administrator and such request shall specify the
amount requested, the reason for the withdrawal and such additional information
as the Plan Administrator shall require.
The withdrawal of any amount from a Participant's Voluntary Tax-Deferred
Account shall be subject to the consent of the Plan Administrator. The basis for
the Plan Administrator consenting or refusing to consent to the Participant's
request shall be its determination that the requested withdrawal is necessary to
allow such Participant to meet an immediate and heavy financial need which such
Participant is not able to meet from any other reasonably available resources.
The foregoing standard shall be applied by the Plan
41
<PAGE>
Administrator so as to conform to the requirements of Section 401(k) of the Code
and the regulations thereunder. Notwithstanding the foregoing, a Participant who
has attained age 59-1/2 may withdraw a cash amount equal to all or a specified
portion of his Voluntary Tax-Deferred Account, including earnings, without the
need to seek the consent of the Plan Administrator.
A distribution shall be deemed to be made on account of an immediate and
heavy financial need of the Participant if the distribution is on account of:
(a) Medical expenses described in Section 213(a) of the Code incurred
by the Participant, his spouse or his dependents or expenses necessary for these
persons to obtain medical care;
(b) Purchase (excluding mortgage payments) of a principal residence
of the Participant;
(c) Payment of tuition and related educational fees for the next
twelve (12) months of post-secondary education for the Participant, his spouse
or his dependents;
(d) The need to prevent eviction of the Participant from his
principal residence or foreclosure on the mortgage of the Participant's
principal residence;
(e) Any other financial need permitted by the Commissioner of the
Internal Revenue Service.
If a Participant has an immediate and heavy financial need as described
above, he may receive a hardship withdrawal not in excess of the amount of the
immediate and heavy financial need (including amounts necessary to pay any
federal, state or local income taxes or penalties reasonably anticipated to
result from the distribution) provided the Plan Administrator determines that
such Participant is not able to meet such need from any other
42
<PAGE>
reasonably available resources. In determining that such Participant is not able
to meet such financial hardship from any other sources, the Plan Administrator
may reasonably rely upon the written certification of the Participant given in
accordance with the regulations promulgated under Section 401(k) of the Code.
5.03 RESUMPTION OF VOLUNTARY CONTRIBUTIONS. Any Participant who makes a
withdrawal in accordance with this Article V shall be prohibited from making
Voluntary Tax-Deferred and Voluntary Participant Contributions for a period of
twelve (12) months. After the expiration of such period, the Participant may
elect to resume Voluntary Tax-Deferred and/or Voluntary Participant
Contributions if he is otherwise eligible under the rules set forth in Section
3.06 and/or 3.07. Amounts withdrawn by a Participant may not be returned to this
Plan.
5.04 PROCEDURE FOR WITHDRAWAL. Each withdrawal pursuant to Section 5.01
and/or Section 5.02 shall be made as soon as practicable following the date the
Trustee receives from the Plan Administrator such written notice of withdrawal
as shall be required by the Trustee. The amount to be so withdrawn shall be that
specified in such written notice and shall be limited to the value of the
Participant's Voluntary Account and/or Voluntary Tax-Deferred Account and by the
provisions of Sections 5.01 and 5.02.
In no event will a Participant be allowed to withdraw any portion of his
Participant Account, Rollover Account, Tax-Deferred Account or Employer Account
prior to the date of the termination of his employment.
5.05 SPOUSAL CONSENT FOR WITHDRAWALS. Notwithstanding the foregoing
provisions of this Article, in the case of a married Participant whose aggregate
vested interest in his accounts under the Plan exceeds $3,500, no withdrawal
pursuant to
43
<PAGE>
Section 5.01 or 5.02 shall be permitted from any of such
Participant's accounts unless the spouse of such Participant has consented to
such withdrawal in a writing which satisfies the requirements of Section 7.02(b)
during the 90-day period preceding the date of such withdrawal.
44
<PAGE>
ARTICLE VI. VESTING, SEVERANCE FROM SERVICE AND FORFEITURES
------------------------------------------------------------
6.01 VESTING.
(a) A Participant shall at all times be 100% vested in each of his
accounts other than his Employer Account.
(b) A Participant's interest in his Employer Account shall become 100%
vested at the earliest of the following dates:
(i) The date the Participant has completed five (5)
years of Service.
(ii) The date of the Participant's death.
(iii) The date the Participant incurs a Disability.
(iv) The Participant's 55th birthday.
(v) The date of termination of the money purchase
pension plan portion of this Plan or the date of complete cessation of
Employer Matching Contributions.
6.02 SEVERANCE FROM SERVICE. Subject to the requirements of Sections 7.02
and 9.06, upon a Participant's Severance from Service from the Employer, he may
make a written request to the Plan Administrator for an immediate lump sum
payment equal to the value of his Voluntary Account, Voluntary Tax-Deferred
Account, Qualified Nonelective Account, Participant Account, Rollover Account,
Prior Plan Account, Tax-Deferred Account and, if he is vested pursuant to
Section 6.01(b), his Employer Account. The Participant may also elect to receive
distribution of his account balances in any other form set forth in Article VII.
The value of the accounts shall be determined as of a Valuation Date selected by
the Plan Administrator which shall apply on a uniform basis to all Participants
in the same circumstances. Notwithstanding the foregoing, if the value of the
45
<PAGE>
Participant's aggregate vested interest in his accounts under the Plan is not
more than $3,500 upon his Severance from Service (or at the time of any prior
distribution to him under the Plan), the Plan Administrator shall make an
immediate single sum cash payment to such Participant in an amount equal to such
value whether or not the Participant requests such distribution.
Payment of such accounts shall be made, or commence to be made, as soon as
practicable after the Trustee receives from the Plan Administrator such written
notice of distribution as shall be required by the Trustee.
6.03 FORFEITURES.
(a) If a Participant's Severance from Service from the Employer occurs
prior to any of the dates referenced in Section 6.01(b), he shall forfeit the
value of his Employer Account as of the Forfeiture Date. The value of such
accounts shall be determined as of such Forfeiture Date and, except as provided
in Article XII hereof, any amounts so forfeited by Participants shall be used to
offset future Employer Matching Contributions under the Plan.
(i) If such a Participant subsequently resumes employment
with the Employer before incurring five (5) consecutive Breaks in Service,
the amount previously forfeited from his Employer Account shall be restored
to such account as soon as administratively practical after the Participant
is reemployed. The Employer shall make an additional contribution to the
Plan with respect to the Plan Year of such reemployment to the extent
necessary to effect such restoration.
46
<PAGE>
(ii) If such a Participant subsequently resumes employment
with the Employer after incurring five (5) consecutive Breaks in Service,
any amounts previously forfeited shall not be restored.
(b) If a fully vested Participant incurs a Severance from Service from
the Employer and he subsequently resumes active employment with the Employer
prior to receiving a distribution of his Employer Account, such Participant
shall continue to be fully vested in such account on his date of reemployment.
47
<PAGE>
ARTICLE VII. DISTRIBUTIONS AT RETIREMENT, DEATH OR DISABILITY
--------------------------------------------------------------
7.01 DISTRIBUTIONS AT RETIREMENT. A Participant shall, as of his
retirement on or after his Early or Normal Retirement Date (whichever is
applicable), be entitled to a distribution of his accounts. The value of the
accounts shall be determined as of a Valuation Date selected by the Plan
Administrator which shall apply on a uniform basis to all Participants in
the same circumstances.
Subject to the requirements of Section 7.02, a Participant may elect to
receive his account balances as a single sum cash payment, as an annuity, or as
a combination of a single sum cash payment and an annuity; provided, however,
that (a) the method of distribution selected must ensure that payment will not
extend beyond the joint lives or joint life expectancies of the Participant and
his designated Beneficiary, (b) the method of distribution may not be a straight
life annuity, and (c) the method of distribution must comply with the minimum
distribution incidental benefit requirement of Section 1.401(a)(9)-2 of the
proposed regulations.
The following annuity forms are available under the Plan:
Year Certain Annuity: This form provides the retiring Participant with a
--------------------
monthly retirement benefit for life with the guarantee that a certain specified
number (not to exceed 120) of monthly retirement benefit payments as elected by
the Participant will be paid to either the retired Participant or his
Beneficiary.
If this form is elected and the retired Participant dies prior to the
receipt of the guaranteed monthly payments, the balance of the guaranteed
monthly payments will be paid to the retired Participant's Beneficiary and will
continue until the total of the guaranteed number of monthly payments have been
made to the retired Participant and his Beneficiary.
48
<PAGE>
The first such payment to the Beneficiary shall be due and payable as of the
first day of the month following the retired Participant's death.
In the event there is no designated Beneficiary living at the death of the
retired Participant, the balance of the guaranteed monthly payments which would
otherwise have become payable to the retired Participant's Beneficiary shall be
commuted to a single sum and shall be paid to any one or more of the surviving
members of the retired Participant's relatives in the following order of
preference: spouse, or in equal shares to his children, grandchildren, or
parents, or his estate.
If the Beneficiary of a deceased retired Participant should die prior to
receiving the balance of the guaranteed number of payments, the balance of such
payments which would otherwise have become payable to the retired Participant's
Beneficiary shall be commuted to a single sum and shall be paid to the
Beneficiary's executors or administrators.
Full Cash Refund Annuity: This form provides the retired Participant with a
------------------------
monthly benefit during his lifetime, and further provides that if the retired
Participant should die prior to receiving benefit payments in a sum equal to the
net single premium applied to purchase his benefit, the excess, if any, of such
net single premium over the aggregate amount of benefit payments previously paid
to him shall be paid in a lump sum to his designated Beneficiary. In the event
there is no designated Beneficiary living at the death of the retired
Participant, such payment shall be paid to any one or more of the surviving
members of the retired Participant's relatives in the following order of
preference: spouse, or in equal shares to his children, grandchildren, or
parents, or his estate.
Contingent Annuitant Annuity: This form provides the retired Participant
----------------------------
with a monthly retirement benefit during his lifetime and continues 100%, 66
2/3%, or 50% (as
49
<PAGE>
elected by the Participant) of the benefit to a Contingent Annuitant, if living,
after the retired Participant's death. If the Contingent Annuitant is the spouse
of the retired Participant, the retirement benefit is payable without
restriction. If, however, the Contingent Annuitant is a person other than the
spouse of the retired Participant, the benefit payable to the Contingent
Annuitant shall be limited to the extent necessary to comply with the minimum
distribution incidental benefit requirement of Section 1.401(a)(9)-2 of the
proposed regulations.
The monthly payments to the Contingent Annuitant shall commence on the
first day of the month following the month in which the retired Participant
dies, if the Contingent Annuitant is then living, and shall cease with the last
payment due for the month in which the Contingent Annuitant's death occurs. If
the Contingent Annuitant dies before the Participant commences to receive
retirement benefits, another Contingent Annuitant may be designated or the
retired Participant may elect another form of benefit payment. If the Contingent
Annuitant predeceases the retired Participant after payments have commenced,
such payments shall cease upon the retired Participant's death.
Notwithstanding the foregoing, if the value of a Participant's aggregate
vested interest in his accounts under the Plan is not more than $3,500 upon his
Early or Normal Retirement Date, or the date he incurs a Disability (whichever
is applicable) (or at the time of any prior distribution to him under the Plan),
the Plan Administrator shall make an immediate single cash payment to such
Participant in an amount equal to such value whether or not the Participant or
his spouse consents to such distribution.
7.02 AUTOMATIC ANNUITY FORM.
(a) Notwithstanding any provision hereof to the contrary, except as
provided in this Section 7.02, any distribution of benefits under this Plan to a
Participant
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<PAGE>
shall be made in the Automatic Annuity Form. In the case of a Participant who is
married on his "annuity starting date," the Automatic Annuity Form shall be a
50% Contingent Annuitant Option, with the 50% continuation to be paid to such
Participant's surviving spouse. In the case of a Participant who is not married
on his "annuity starting date," the Automatic Annuity Form shall be the Full
Cash Refund Annuity.
(b) The Automatic Annuity Form required by paragraph (a) of this
Section shall not apply if the value of the Participant's aggregate vested
interest in his accounts under the Plan is not more than $3,500, or if the
Participant has effectively designated in writing during the 90-day period
ending on his "annuity starting date" (and such designation is not revoked
during such period) an alternate payment option under Section 7.01. Such
designation shall be effective only if (i) the Participant's spouse has
consented to such designation of an alternate payment option in a writing which
acknowledges the effect of the designation and which is witnessed by a Plan
representative or notary public, or (ii) it is established to the satisfaction
of the Plan Administrator that such spousal consent is unobtainable because
there is no spouse, or because the spouse cannot be located, or because the
Participant has been abandoned by his spouse within the meaning of local law and
there is a court order to that effect, or because of other circumstances
prescribed by regulations under Section 417(a)(2) of the Code. Such a
designation may be revoked, with or without spousal consent, at any time during
the 90-day period ending on his "annuity starting date." Such a designation may
not be changed without spousal consent unless the initial consent of the spouse
expressly permits designations by the Participant without any requirement of
further consent by the spouse.
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(c) The Plan Administrator shall no less than 30 days and no more than
90 days prior to the Participant's annuity starting date provide each
Participant with a written explanation of: (i) the terms and conditions of the
Automatic Annuity Form; (ii) the Participant's right to make, and the effect of,
an election to waive the Automatic Annuity Form; (iii) the right of the
Participant's spouse; and (iv) the right to make, and the effect of, a
revocation of a previous election to waive the Automatic Annuity Form.
(d) For purposes of this Section 7.02 and Section 7.04, the term
"annuity starting date" means (i) the first day of the first period for which an
amount is payable as an annuity, or (ii) in the case of a benefit not payable in
the form of an annuity, the first day on which all events have occurred which
entitle the Participant to such benefit.
7.03 DISTRIBUTIONS UPON INCURRING DISABILITY. If a Participant should incur
a Disability prior to his Normal Retirement Date, he may elect by written notice
to the Plan Administrator to receive a distribution in accordance with Section
7.01 and 7.02 at any time after the date he incurs the Disability and prior to
his Normal Retirement Date (provided he is then living). If no such election is
filed, distribution will be made in accordance with Section 7.01 as of the
disabled Participant's Normal Retirement Date. Distribution of such disabled
Participant's accounts shall be made as provided in 7.02(a), unless the
exceptions in 7.02(b) apply, in which case the disabled Participant may choose
any method of distribution set forth in Section 7.01.
7.04 DISTRIBUTIONS AT DEATH.
(a) Except as otherwise provided in paragraph (b) of this Section,
upon the death of any active Participant prior to his "annuity starting date,"
the full amount credited to his accounts as of his date of death or in the case
of the death of a terminated or retired
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Participant, the undistributed vested balance of his accounts, shall be paid in
a single sum payment to his Beneficiary as soon as administratively practicable
after the Valuation Date coincident with or next following the date the
Participant's death is reported to the Plan Administrator. If a Participant's
death occurs after his "annuity starting date," any death benefit shall be
payable in accordance with the particular form of annuity which is in effect for
such Participant.
(b) Notwithstanding any provision hereof to the contrary, unless an
effective waiver has been filed pursuant to this paragraph (b), if a married
Participant dies prior to his "annuity starting date," distribution of at least
50% of the balance standing to the credit of his accounts as of the date of his
death shall be made by purchase of an annuity contract which provides for
payments to the Participant's spouse for life; provided, however, that if the
Participant's surviving spouse so elects, or if the amount otherwise required to
be distributed by purchase of such annuity does not exceed $3,500, distribution
shall be made by a single sum payment of the full amount due to such surviving
spouse hereunder in lieu of the purchase of such annuity contract. The portion
of a Participant's accounts which is not required to be distributed by purchase
of a surviving spouse annuity under this paragraph (b) shall be distributed
pursuant to paragraph (a) of this Section.
The Plan Administrator shall provide to each Participant, within the
"applicable period" with respect to the Participant, a written explanation with
respect to the surviving spouse annuity. The term "applicable period" means the
latest of (i) the period beginning with the first day of the Plan Year in which
the Participant attains age 32 and ending with the close of the Plan Year
preceding the Plan Year in which the Participant attains age 35; (ii) a
reasonable period after the Employee becomes a Participant; or (iii) a
reasonable period
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after separation from service in the case of a Participant who separates prior
to attaining age 35.
The surviving spouse annuity requirement of the paragraph (b) shall not be
applicable if the Participant, at any time after the beginning of the Plan Year
during which his 35th birthday occurs or his termination of employment,
whichever is earlier, has elected to waive such requirement and has designated a
Beneficiary other than his spouse, and such Participant's surviving spouse has
consented to such waiver and designation in a writing which acknowledges the
effect of the consent and which is witnessed by a Plan representative or notary
public; provided, however, that such spousal consent shall not be required if it
is established to the satisfaction of the Plan Administrator that such consent
was unobtainable because there is no spouse, because the spouse cannot be
located, or if the Participant can show by court order that he has been
abandoned by his spouse within the meaning of local law, or because of other
circumstances prescribed in regulations under Section 417(a)(2) of the Code. The
election by the Participant to waive the surviving spouse annuity and to
designate a Beneficiary other than his spouse may not be changed without spousal
consent unless the initial consent of the spouse expressly permits designations
by the Participant without any requirement of further consent by the spouse. In
the event that an effective election has been filed, distribution of 100% of the
balance standing to the credit of the Participant's accounts shall be made
pursuant to paragraph (a) of this Section.
Distribution of the surviving spouse annuity required under this
paragraph (b) must begin within a reasonable time after the Participant's death,
if the surviving spouse so directs. Otherwise, distribution of the surviving
spouse annuity shall commence as of such date as the surviving spouse elects in
writing.
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(c) Subject to the provisions of subsection (c) above, a Participant
may, from time to time in such manner as the Plan Administrator shall prescribe,
change his designated Beneficiary or Beneficiaries, but any such designation
which has the effect of naming a person other than the surviving spouse as
Beneficiary to more than 50% of his account balances is subject to the spousal
consent requirement of subsection (b) above.
(d) If a Participant has failed effectively to designate a
Beneficiary to receive the Participant's remaining account balances upon his
death, or a Beneficiary previously designated has predeceased the Participant
and no alternative designation has become effective, such account balances shall
be distributed to any one or more of the surviving members of the Participant's
relatives in the following order of preference: spouse, or in equal shares to
his children, grandchildren, or parents, or his estate.
7.05 LOANS TO PARTICIPANTS. Upon written application of an active
Participant, the Committee may direct the Trustee to lend to the Participant
such amount or amounts as the Committee may determine proper from the
Participant's accounts in the Plan (other than his Employer Account), provided
that the aggregate amount of all outstanding loans from this Plan and from any
other qualified plan maintained by the Employer or an Affiliated Company,
including accrued interest thereon, shall not exceed the lesser of (a) $50,000,
reduced by any loan repayment made during the one (1) year period ending on the
day before the date such loan is made, (b) 50% of the Participant's vested
interest in his accounts (determined at the time the loan is made), or (c) the
Participant's total account balance less the amount in his Employer Account.
Each loan to Participants shall meet the following requirements:
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(i) Loans shall be made available to all Participants on a reasonably
equivalent basis.
(ii) Loans shall not be made available to Highly Compensated Employees
in an amount greater than the amount made available to other Participants.
(iii) Loans shall be evidenced by the promissory notes of the
Participants, shall be adequately secured and shall bear a reasonable
interest rate. No more than 50% of the vested portion of the Participant's
accounts may be used as security for a loan.
(iv) In the event of default, foreclosure on the note and attachment of
security will not occur until a distributable event occurs under the Plan.
(v) Each loan shall by its terms require that repayment (principal and
interest) be amortized in level payments, not less frequently than
quarterly, over a period not extending beyond five (5) years from the date
of the loan. If the loan is used to acquire any dwelling unit which within
a reasonable time is to be used (determined at the time such loan is made)
as a principal residence of the Participant, then the repayment period shall
not extend beyond 15 years.
(vi) The minimum loan amount shall be $1,000 and no Participant may have
more than two (2) outstanding loans from this Plan and any other qualified
plan maintained by the Employer or an Affiliated Company at any time.
(vii) Each Participant shall obtain the consent of his spouse to the use
of his accounts as security for the loan. Spousal consent shall be obtained
during the 90-day period ending on the date on which the loan is to be so
secured. Such consent shall be in writing, shall acknowledge the effect of
such loan, and shall be witnessed by a
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Plan representative or a notary public. Such consent shall thereafter be
binding with respect to the consenting spouse or any subsequent spouse with
respect to the loan.
(viii) Each such loan shall be administered in accordance with the
Plan's participant loan policy.
Each such loan shall be deemed to be an investment made at the direction of
such Participant and shall be credited to the separate investment account of the
borrowing Participant. The Participant's accounts (other than his Employer
Account) shall be reduced to the extent necessary to permit the establishment of
a separate loan account for such Participant in the following order:
Tax-Deferred Account, Participant Account, Rollover Account, Voluntary
Tax-Deferred Account, Prior Plan Account and Voluntary Account. The reduction
from the Investment Funds in each account shall be made on a pro rata basis. All
interest and loan repayments, adjusted for administrative expenses, shall be
credited to such Participant's separate loan account. Amounts credited to such
Participant's separate loan account as a result of payments of interest and
principal shall be credited to the Participant's accounts in the inverse order
used to fund the loan and shall be reinvested as soon as practicable in the
Plan's Investment Funds in accordance with the investment election of the
Participant for new contributions currently on file with the Committee.
If any part or all of the amount standing to one or more of the
Participant's accounts under the Plan shall become distributable to such
Participant or his Beneficiary while a loan to such Participant under this
Section 7.05 is outstanding, the Committee shall direct the Trustee to apply the
amount of such distribution in payment of the entire outstanding loan principal,
whether or not then due, and any interest theretofore accrued, before
distributing the balance, if any, to the Participant or his Beneficiary.
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ARTICLE VIII. ADMINISTRATION
-----------------------------
8.01 ALLOCATION OF RESPONSIBILITY. The Board of Directors of the Employer
and the Plan Administrator shall have only those specific powers, duties,
responsibilities and obligations as are specifically given them under this Plan
and the trust agreement. In general, the Board of Directors of the Employer
shall have the sole responsibility for the appointment of the Retirement
Committee. The Board of Directors of the Employer and the Plan Administrator
shall each warrant that any directions given, information furnished or action
taken shall be in accordance with the provisions of this Plan authorizing or
providing for such direction, information or action.
8.02 APPOINTMENT OF PLAN ADMINISTRATOR. The Plan shall be
administered by a Retirement Committee which shall consist of three or more
members. Such members shall be appointed by and serve at the pleasure of the
Board of Directors of Tyco International Ltd. Any members of the Committee who
are employees of the Employer shall not receive compensation with respect to
their services on the Committee. Any such Employee member shall not be precluded
from participating in this Plan, but shall not be permitted to make any decision
or take any action with respect to his own participation in the Plan.
Any action taken by the Committee shall be by majority rule of the members
of the Committee. The Committee may delegate to any one of their number
authority to sign documents on behalf of the Committee, or to perform
ministerial acts, but no person to whom such authority is delegated shall
perform any act involving the exercise of discretion without first obtaining the
approval of the Committee. Any member of the Committee may resign at any time by
providing the Board of Directors of Tyco International Ltd. with
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written notice of his intent to resign. Such Board of Directors may remove any
member of the Committee at any time by providing such member with written
notification of his removal.
8.03 CLAIMS PROCEDURE. The Plan Administrator shall make all determinations
as to the right of any person to a benefit. Any denial by the Plan Administrator
of the claim for benefits to a Participant, former Participant or Beneficiary
under the Plan shall be stated in writing by it and delivered or mailed to the
Participant, former Participant or Beneficiary; and such notice shall set forth
the specific reasons for the denial, written to the best of its ability in a
manner that may be understood without legal or actuarial counsel.
Any person whose claim has been denied shall have the opportunity to appeal
such denial by written notification to the Plan Administrator within 60 days
following receipt of notice of denial. Within 60 days following receipt of such
written appeal, the Plan Administrator shall transmit written notification of
its decision regarding the appeal to said person, provided, however, that if the
Plan Administrator determines a hearing shall be necessary, such 60-day period
shall be extended to 120 days.
8.04 RECORDS AND REPORTS. The Plan Administrator shall exercise such
authority and responsibility as it deems appropriate in order to comply with
ERISA, and governmental regulations issued thereunder relating to records of
Participant's service, retirement benefits and the percentage of such benefits
which are nonforfeitable under the Plan; notifications to Participants; periodic
registration with the Internal Revenue Service; and annual reports to the
Internal Revenue Service and/or the Department of Labor.
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8.05 POWERS AND DUTIES OF THE PLAN ADMINISTRATOR. The Plan
Administrator shall have such duties and powers as may be necessary to discharge
its duties hereunder, including, but not limited to the following:
(a) To amend, construe and interpret the Plan, decide all questions of
eligibility and determine the amount and time of payment of any benefits
hereunder;
(b) To prescribe procedures to be followed by Participants, former
Participants or Beneficiaries in filing applications for benefits;
(c) To prepare and distribute, in such manner as it determines to be
appropriate, information explaining the Plan;
(d) To receive from the appropriate sources such information as shall
be necessary for the proper administration of the Plan;
(e) To receive, review and keep on file (as it deems convenient or
proper) reports of the financial condition, and of the receipts and
disbursements, of the assets from the Trustee;
(f) To appoint or employ individuals to assist in the administration
of the Plan and any other agents it deems advisable, including legal counsel;
(g) To direct the Trustee to pay reasonable expenses of the Plan and
Trust out of Trust assets;
(h) To select appropriate investment vehicles, including fixed
interest contracts, to constitute the Investment Funds available under the Trust
for the investment of plan assets, to permit Participants to direct investment
of their account balances in the Investment Funds, and to prescribe rules and
procedures relating to such directed investment; and
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(i) To enter into any and all contracts, fixed interest contracts, and
agreements for carrying the terms of the Plan and the administration thereof and
to do all acts as the Plan Administrator, in its sole discretion, may deem
necessary or appropriate, and all such contracts, agreements, and acts shall be
binding and conclusive on the parties hereto and on the Employees involved.
Except as provided by Section 10.02, the Plan Administrator shall have no
power to add to, subtract from or modify any of the terms of the Plan, or to
change or add to any benefits provided by the Plan, or to waive or fail to apply
any requirements of eligibility for a benefit under the Plan.
8.06 RULES AND DECISIONS. The Plan Administrator may adopt such rules as it
deems necessary, desirable, or appropriate. All rules and decisions of the Plan
Administrator shall be uniformly and consistently applied to all Participants in
similar circumstances. When making a determination or calculation, the Plan
Administrator shall be entitled to rely upon information furnished by a
Participant or Beneficiary, the legal counsel of the Employer or the Trustee.
8.07 AUTHORIZATION OF BENEFIT PAYMENTS. The Plan Administrator shall
issue directions to the appropriate party, including the Trustee, concerning the
payment of all benefits which are to be paid from the assets of the Plan, and
warrants that all such directions are in accordance with the provisions of this
Plan.
8.08 APPLICATION AND FORMS FOR BENEFITS. The Plan Administrator may
require a Participant or Beneficiary to complete and file with it an application
for benefits and all other forms approved by it and furnish all pertinent
information requested by it, including the Participant's or Beneficiary's
current mailing address.
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8.09 FACILITY OF PAYMENT. Whenever, in the Plan Administrator's opinion, a
person entitled to receive any benefit hereunder is under a legal disability or
is incapacitated in any way so as to be unable to manage his financial affairs,
the Plan Administrator may cause payments otherwise payable to such person to be
made to such person's legal representative for his benefit. Any payment of
benefits in accordance with the provisions of this Section 8.09 shall be a
complete discharge of any liability for the making of such payment under the
provisions of this Plan. In the event that a person entitled to receive any
benefit hereunder cannot be located after reasonable efforts of the Plan
Administrator, such person's benefit may be forfeited, and shall be reapplied in
such a way as to offset future Employer Matching Contributions under this Plan;
provided, however, that if such person subsequently files a claim for benefit
with the Plan Administrator, such benefit shall be restored (by a special
Employer Contribution) to the value previously forfeited.
8.10 COMPENSATION OF PLAN ADMINISTRATOR AND PLAN EXPENSES.
The Plan Administrator shall serve without compensation for services as such,
but all expenses of the Plan Administrator in administering the Plan shall
constitute a charge upon the Trust, unless paid by the Employer in its sole
discretion. Such expenses shall include any expenses incident to the functioning
of the Plan and Trust, including, but not limited to, attorneys' fees, fidelity
bonding, accounting and clerical charges, trustee fees, plan investment costs,
recordkeeping fees, consultants' fees and other costs of administering the Plan
and Trust.
8.11 INDEMNIFICATION. The Employer shall indemnify and hold harmless each
member of the Committee from and against any and all claims, losses, damages,
expenses (including reasonable attorneys' fees approved by the Employer) and
liability (including any
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reasonable amounts paid in settlement with the Employer's approval) arising
from any act or omission of such member, except when the same is judicially
determined to be due to the willful misconduct of such member.
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ARTICLE IX. MISCELLANEOUS
--------------------------
9.01 NONGUARANTEE OF EMPLOYMENT. Nothing contained in this Plan shall be
construed as a contract of employment between the Employer and any Employee, or
as a right of any Employee to be continued in the employment of the Employer, or
as a limitation of the right of the Employer to discharge any of its Employees,
with or without cause.
9.02 RIGHTS OF EMPLOYEES AND BENEFICIARIES. No Employee or
Beneficiary shall have any right to or interest in any assets of the Plan upon
termination of his employment or otherwise, except as provided from time to time
under this Plan, and then only to the extent of the benefits payable under the
Plan to such Employee or Beneficiary out of such assets. All payments of
benefits as provided for in this Plan shall be made solely out of Plan assets.
9.03 NONALIENATION OF BENEFITS. Benefits payable under this Plan shall not
be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, charge, garnishment, execution, or levy of any
kind, either voluntary or involuntary, including any such liability which is for
alimony or other payments for the support of a spouse or former spouse, or for
any other relative of the Employee, prior to actually being received by the
person entitled to the benefit under the terms of the Plan; and any attempt to
anticipate, alienate, sell, transfer, assign, pledge, encumber, charge or
otherwise dispose of any right to benefits payable hereunder shall be void; and
the Plan assets shall not in any manner be liable for, or subject to, the debts,
contracts, liabilities, engagements or torts of any person entitled to benefits
hereunder; provided, however, that nothing herein shall restrict or prohibit the
creation, assignment, or recognition of a right to
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any benefit payable with respect to a Participant pursuant to a "qualified
domestic relations order" (within the meaning of Sections 401(a)(13)(B) and
414(p) of the Code).
9.04 DISCONTINUANCE OF EMPLOYER CONTRIBUTIONS. In the event of
permanent discontinuance of contributions to the Plan by the Employer, the
accounts of all Participants shall, as of the date of such discontinuance,
become fully vested.
9.05 REVERSION TO EMPLOYER. The Employer has no beneficial interest in the
Plan assets and no part of the Plan assets shall ever revert or be repaid to the
Employer, directly or indirectly, except that:
(a) if a contribution is made by the Employer to the Plan by mistake
of fact, such contribution may be returned to the Employer within one (1) year
from the date the contribution is made, or
(b) if the Employer is denied a Federal income tax deduction with
respect to all or any portion of its contribution to the Plan, such contribution
(to the extent disallowed) shall be returned to the Employer within one (1) year
from the date of disallowance, it being the intent that all contributions to the
Plan by the Employer shall be so deductible.
9.06 COMMENCEMENT AND TIMING OF DISTRIBUTIONS.
(a) Any distribution to be made under this Plan to any Participant
shall be made no later than the 60th day following the close of the Plan Year in
which the Participant reaches his Normal Retirement Date or terminates
employment, whichever is later.
(b) Any distribution to be made under this Plan to a Participant who
is a "5% owner" at any time during the five-Plan-Year period ending in the
calendar year in which such Participant attains age 70-1/2, shall begin no later
than the April 1 following the
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close of the calendar year in which the Participant attains age 70-1/2.
Furthermore, if a Participant who is not described in the preceding sentence
becomes a 5% owner during any Plan Year subsequent to such five-Plan-Year
period, distribution to such Participant shall commence not later than the April
1 following the close of the calendar year during which such subsequent Plan
Year ends.
(c) Effective with respect to Plan Years beginning after December 31,
1988, any distribution to be made under this Plan to a Participant shall begin
no later than the April 1 following the close of the calendar year in which such
Participant attains age 70-1/2; provided, however, that (i) the foregoing
required distribution shall not apply to a Participant who attains age 70-1/2
before January 1, 1988 and who is not a 5% owner during the Plan Year ending
with or within the calendar year in which he attains age 66-1/2, or any
subsequent Plan Year, and (ii) distributions required with respect to the 1989
calendar year shall be made no later than April 1, 1990.
(d) For purposes of this Section, a "5% owner" is defined as an owner
of either (i) more than five percent (5%) of the outstanding stock of the
Employer or an Affiliated Company, or (ii) stock possessing more than five
percent (5%) of the total combined voting power of all the stock of the Employer
or of an Affiliated Company. For purposes of this definition, an individual
shall be deemed to own stock owned by others, as provided in Section 318 of the
Code.
(e) If the value of a terminated Participant's aggregate vested
interest in his accounts exceeds $3,500, distribution may not be made to such
Participant unless such Participant and his spouse (if the Participant is
married as of the date distribution of benefits is to be made or commenced)
elect to receive his distribution in writing during the 90-day
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period ending on the annuity starting date; provided, further, that spousal
consent shall not be required with respect to the commencement of benefits from
a Participant's accounts prior to the Participant's Normal Retirement Date in
the Automatic Annuity Form pursuant to Section 7.02. The Participant may also
elect to delay the receipt of his distribution until April 1 following the
calendar year in which such Participant attains age 70 1/2. The value of the
Participant's accounts shall be determined as of a Valuation Date selected by
the Plan Administrator which shall apply on a uniform basis to all Participants
in the same circumstances.
(f) Notwithstanding any other provision of the Plan, a Participant's
Tax-Deferred Account and Voluntary Tax- Deferred Account shall not be
distributable prior to his separation from service, Disability, death or
attainment of age 59-1/2, except (i) in cases of hardship as provided in Section
5.02 of the Plan, (ii) upon termination of the Plan without establishment or
maintenance of another defined contribution plan (other than an employee stock
ownership plan as defined in Section 4975(e)(7) of the Code), (iii) upon
disposition by the Employer or an Affiliated Company of substantially all of the
assets used by such corporation in a trade or business, in the case of a
Participant who continues employment with the corporation acquiring such assets,
or (iv) disposition by the Employer or an Affiliated Company of such
corporation's interest in a subsidiary, with respect to a Participant who
continues employment with such subsidiary. No distribution shall be authorized
by clauses (ii), (iii) or (iv) above, unless the distribution qualifies as a
"lump sum distribution" within the meaning of Section 401(k)(10)(B) of the Code.
(g) In the event a Participant dies before his Required Distribution
Date, his entire interest shall be paid to his Beneficiary in a lump sum no
later than December 31
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of the calendar year containing the fifth (5th) anniversary of the Participant's
death; provided, however, that if the Beneficiary is the Participant's spouse,
the spouse may elect an annuity form of payment which shall commence no later
than December 31 of the calendar year in which the Participant would have
attained age 70-1/2.
If a Participant dies on or after his Required Distribution Date, the
Participant's remaining interest in the Plan shall be distributed at least as
rapidly as under the method of distribution being used as of the date of death.
(h) If, and to the extent that, any portion of a Participant's vested
account balances is payable to a former spouse or dependent pursuant to a
qualified domestic relations order within the meaning of Sections 401(a)(13)(B)
and 414(p) of the Code, the provisions of said order shall govern the
distribution thereof. Such an order may provide for payments to a former spouse
or dependent even though the Participant is still employed by the Employer or is
otherwise not eligible for the distribution of benefits under the Plan.
9.07 JURISDICTION. This Plan shall be construed in accordance with the laws
of the jurisdiction of the State of New Hampshire except to the extent to which
said laws are superseded by Federal law.
9.08 LEASED EMPLOYEES. A "leased employee" shall receive credit for Hours
of Service and years of Service for the entire period during which he is a
leased employee of the Employer as if he were an Employee of the Employer;
provided, however, that a leased employee shall not be an Eligible Employee for
purposes of participation in the Plan as long as he remains a leased employee.
For purpose of this Section 9.08, the term "leased employee" means any person
(a) who is not an Employee of the Employer and (b) who pursuant to an agreement
between the Employer and any other person (a "leasing
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organization") has performed services for the Employer of a type historically
performed by employees in the business field of the Employer on a substantially
full-time basis for a period of at least one (1) year. Notwithstanding the
foregoing, if leased employees constitute less than 20% of the Employer's
nonhighly compensated work force within the meaning of Section 414(n)(5) of the
Code, a person who is covered by a money purchase pension plan maintained by the
leasing organization which provides a nonintegrated employer contribution rate
of at least ten percent (10%) of compensation, immediate participation and full
and immediate vesting shall not be considered a "leased employee."
9.09 EFFECTIVE DATE. The effective date of this amendment and restatement
shall be generally April 1, 1993, except for the following provisions:
(a) Participants may make Basic Participant Contributions pursuant to
Section 3.01(b) and Supplemental Participant Contributions pursuant to Section
3.02(b) only on or after July 1, 1987.
(b) The change to the elapsed time method of crediting Service shall
be effective January 1, 1987.
(c) The definitions of "Highly Compensated Employee," "Family Member,"
"Qualified Nonelective Account" and "Qualified Nonelective Contributions" and
the amendments to Article IV shall be effective January 1, 1987.
(d) The change in the definition of "Forfeiture Date" shall be
effective January 1, 1993.
(e) The ability of Participants to direct investment of their accounts
as set forth in Section 3.13 shall be effective July 1, 1992.
(f) The provision of Section 8.10 shall be effective July 1, 1992.
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(g) The addition of a loan provision in Section 7.05 shall be
effective October 1, 1993.
(h) The direct rollover provisions of Article XV shall be effective
January 1, 1993.
(i) The change in name of the Employer and the change in name of the
Plan shall be effective November 10, 1993.
(j) The change in age of participation from 21 to 18 shall be
effective July 1, 1994.
(k) The changes to Sections 3.06 and 3.07 shall be effective
July 1, 1994.
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ARTICLE X. AMENDMENTS AND ACTION BY EMPLOYER
---------------------------------------------
10.01 AMENDMENTS. The Employer reserves the right to make from time to time
any amendment or amendments to this Plan which do not cause any part of the
assets of the Plan to be used for, or diverted to, any purpose other than the
exclusive benefit of Participants or their Beneficiaries; provided, however,
that the Employer may make any amendment it determines necessary or desirable,
with or without retroactive effect, to comply with the requirements of the Code
or of any other pertinent provision of Federal or State law, or any regulation
or ruling of any duly constituted authority in connection therewith.
10.02 ACTION BY EMPLOYER. Any action by the Employer under this Plan may be
made by resolution of its Board of Directors, or by any person or persons duly
authorized by resolution of said Board to take such action. Each Employer
hereunder shall have and exercise all the rights, powers and duties thereof with
respect to the Plan as applied to itself and its employees and those assets of
the Plan which represent accounts of Participants employed by it. Each Employer
hereby delegates all such rights and powers including amendment or termination
of the Plan, to the Plan Administrator, acting alone, except as such Employer
may exercise the same for itself.
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ARTICLE XI. SUCCESSOR EMPLOYER AND MERGER
------------------------------------------
OR CONSOLIDATION OF PLANS
-------------------------
11.01 SUCCESSOR EMPLOYER. In the event of the dissolution, merger,
consolidation or reorganization of the Employer, provision may be made by which
the Plan will be continued by the successor; and, in that event, such successor
shall be substituted for the Employer under the Plan. The substitution of the
successor shall constitute an assumption of Plan liabilities by the successor
and the successor shall have all the powers, duties and responsibilities of the
Employer under the Plan.
11.02 PLAN ASSETS. In the event of any merger or consolidation of the Plan
with, or transfer in whole or in part of the assets and liabilities of the Plan
to, another plan of deferred compensation maintained or to be established for
the benefit of all or some of the Participants of this Plan, the assets of this
Plan applicable to such Participants shall be transferred to the other plan only
if
(a) each Participant would (if either this Plan or the other plan then
terminated) 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
this Plan had then terminated);
(b) resolutions of the Board of Directors of the Employer under this
Plan, or of any new or successor employer of the affected Participants, shall
authorize such transfer of assets; and in the case of the new or successor
employer of the affected Participants, its resolutions shall include an
assumption of liabilities with respect to such Participant's inclusion in the
new employer's plan; and
(c) such other plan is qualified under Section 401(a) of the Code.
72
<PAGE>
ARTICLE XII. PLAN TERMINATION
------------------------------
12.01 RIGHT TO TERMINATE. In accordance with the procedures set forth in
this Article, the Employer, by action of its Board of Directors, may terminate
the Plan, or either portion thereof, at any time. In the event of the
dissolution, merger, consolidation or reorganization of the Employer, the Plan
shall terminate and, subject to Section 9.06(f) of the Plan, the Plan assets
shall be liquidated unless the Plan is continued by a successor to the Employer
in accordance with Section 11.01.
12.02 PARTIAL TERMINATION. Upon termination of the Plan with respect to a
group of Participants which constitutes a partial termination of the Plan, the
Plan Administrator shall allocate and segregate for the benefit of the Employees
then or theretofore employed by the Employer with respect to which the Plan is
being terminated the proportionate interest of such Participants in the Plan
assets. The assets so allocated and segregated shall be used by the Plan
Administrator to pay benefits to or on behalf of Participants in accordance with
Section 12.03.
12.03 LIQUIDATION OF THE PLAN. Upon termination or partial termination of
the Plan, the accounts of all Participants affected thereby shall become fully
vested, and the Plan Administrator shall, subject to the provisions of the
immediately following paragraph, cause the assets remaining in the Plan,
including any forfeitures which shall not have been applied to reduce Employer
Matching Contributions hereunder, to be allocated to the remaining Participants
and Beneficiaries in proportion to their respective Employer Account balances.
In the event that any administrative expenses assessed under this Plan are
due and unpaid as of such Plan termination date, the payment of such expenses
shall be satisfied (a)
73
<PAGE>
by deducting the required amount from any then unallocated Plan assets,
and/or, if such Plan assets are insufficient to pay the full required amount,
(b) by deducting a pro-rata share of the amount remaining to be paid from
each Participant's Employer Account (if necessary).
12.04 MANNER OF DISTRIBUTION. Upon termination of the Plan, the Plan
Administrator shall direct the Trustee to make distributions to the Participant
or other person or persons entitled thereto in accordance with the provisions of
Article VII, provided, however, that if the Plan is terminated without the
establishment of a successor plan, the Plan Administrator may proceed with such
distribution at any time after such termination but prior to the time the
Participants would otherwise become entitled thereto under the Plan.
Distribution may be made in whole or in part, in cash or in nontransferable
annuity contracts.
74
<PAGE>
ARTICLE XIII. DISCHARGE OF DUTIES BY FIDUCIARIES
-------------------------------------------------
The Plan Administrator and any other person who, by reason of his
involvement in and under this Plan, shall be deemed to be a fiduciary within the
meaning of Title I, Section 3(21) of ERISA, shall discharge their Plan related
duties and responsibilities solely in the interest of the Participants and their
Beneficiaries and with the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent man acting in like capacity and
familiar with such matters would use in the conduct of an enterprise of a like
character and with like aims.
75
<PAGE>
ARTICLE XIV. TOP-HEAVY PROVISIONS
----------------------------------
14.01 GENERAL RULE. For any Plan Year for which this Plan is a "top-heavy
plan" as defined in Section 14.05 below, any other provisions of this Plan to
the contrary notwithstanding, this Plan shall be subject to the following
provisions:
(1) The vesting provisions set by Section 14.02.
(2) The minimum benefit provisions set by Section 14.03.
(3) The adjustment to the combined plan limit set by Section 14.04.
14.02 VESTING PROVISIONS. Each Participant who has completed the number of
Years of Service specified in the following table shall have a nonforfeitable
right to the percentage of his Employer Account under this Plan correspondingly
specified in the following table:
Years of Percentage of
Service Nonforfeitable Benefit
------- ----------------------
2 20%
3 40%
4 60%
5 100%
14.03 MINIMUM BENEFIT PROVISIONS. Each Participant who is a non-key
employee (as defined in Section 14.08 below) shall be entitled to an Employer
contribution for such Plan Year that shall be not less than three percent (3%)
of the Participant's compensation (as determined under Section 415 of the Code)
up to $200,000 (as increased or decreased in accordance with Section 401(a)(17)
of the Code) for the Plan Year. Tax-Deferred Contributions and Employer Matching
Contribution may not be used to satisfy the minimum benefit requirement of this
Section 14.03.
76
<PAGE>
14.04 ADJUSTMENT TO COMBINED PLAN LIMIT. In determining the defined benefit
plan fraction and the defined contribution plan fraction under Section 4.04
above, the number 1.0 shall be substituted for the number 1.25 each place it
appears in said Section.
14.05 TOP-HEAVY PLAN DEFINITION. This Plan shall be a "top-heavy plan" for
any Plan Year if, as of the determination date (as defined in subparagraph (a)
below), the present value of the accounts under the Plan for Participants
(including former Participants) who are "key employees" (as defined in Section
14.06 below) exceeds 60 percent of the sum of the accounts under the Plan for
all Participants (excluding the accounts of former "key employees" and of
employees who have not performed any services for the Employer at any time
during the five-year period ending on the determination date) or if this Plan is
required to be in an aggregation group (as defined in subparagraph (b) below)
which for such Plan Year is a top-heavy group (as defined in subparagraph (c)
below).
(a) "Determination date" means for any Plan Year the last day of the
immediately preceding Plan Year.
(b) "Aggregation group" means the group of plans, if any, that
includes the group of plans that are required to be aggregated and, if the Plan
Administrator so elects, the group of plans that are permitted to be aggregated.
(i) The group of plans that are required to be aggregated (the
"required aggregation group") includes:
(A) each plan (including each terminated plan) of the
Employer and of Affiliated Companies in which a "key employee" is a
Participant, and
77
<PAGE>
(B) each other plan (including each terminated plan) of the
Employer and of Affiliated Companies which enables a plan in which a
Key Employee is a Participant to meet the requirements of either
Section 401(a)(4) or Section 410 of the Code.
(ii) The plans that are permitted to be aggregated (the
"permissive aggregation group") includes any plan that is not part of the
"required aggregation group" that the Plan Administrator certifies as
constituting a plan within the "permissive aggregation group." Such plans
may be added to the "permissive aggregation group" only if, after the
addition, the "aggregation group" as a whole continues to meet the
requirements of both Section 401(a)(4) and Section 410 of the Code.
(c) "Top-heavy group" means the "aggregation group," if as of the
applicable determination date, the sum of the present value of the accrued
benefits for "key employees" under all defined benefit plans included in the
"aggregation group" plus the aggregate of the accounts of "key employees" under
all defined contribution plans included in the "aggregation group" exceeds 60
percent of the sum of the present value of the accrued benefits for all
employees under all such defined benefit plans plus the aggregate accounts for
all employees under such defined contribution plans (excluding the accrued
benefit and accounts of former "key employees" and of employees who have not
performed any services for the Employer at any time during the five-year period
ending on the determination date.)
(d) In determining whether this Plan constitutes a "top-heavy plan,"
the Plan Administrator shall follow the rules set forth in Section 416 of the
Code and regulations pertaining thereto.
78
<PAGE>
14.06 KEY EMPLOYEE. The term "key employee" means any Participant
(and any Beneficiary of a Participant) under this Plan who is a "key
employee" as determined in accordance with Section 416(i)(1) of the Code.
14.07 NON-KEY EMPLOYEE. The term "non-key employee" means any Employee
(and any beneficiary of an employee) who is a "non-key employee" as
determined in accordance with Section 416(i)(2) of the Code.
14.08 CHANGE FROM TOP-HEAVY STATUS. In the event the Plan should
become a "top-heavy plan" for a Plan Year and subsequently revert to a
plan which is not top-heavy, subparagraphs (a) and (b) below shall apply:
(a) The change from a "top-heavy plan" to a plan which is not
top-heavy shall not reduce a Participant's nonforfeitable right to any amount
previously credited to his Employer Account under the Plan, and any Participant
who has completed three (3) or more years of Service at the time the Plan
reverts to a plan which is not top-heavy shall continue to have his
nonforfeitable right to benefits under the Plan determined in accordance with
Section 14.02 above.
(b) The change from a "top-heavy plan" to a plan which is not
top-heavy shall not reduce a Participant's account balances.
79
<PAGE>
ARTICLE XV. DIRECT ROLLOVERS
-----------------------------
15.01 APPLICATION OF THIS ARTICLE. This Article applies to distributions
made on or after January 1, 1993. Notwithstanding any provision of the Plan to
the contrary that would otherwise limit a distributee's election under this
Article, a distributee may elect, at the time and in the manner prescribed by
the Committee, to have any portion of an Eligible Rollover Distribution from the
Plan paid directly to an Eligible Retirement Plan specified by the distributee
in a Direct Rollover.
15.02 DEFINITIONS. Whenever used in this Article or elsewhere in the
Plan, the following words shall have the following meanings:
(a) Eligible Rollover Distribution: An Eligible Rollover Distribution
------------------------------
is any distribution of all or any portion of the balance to the credit of the
distributee, except that an eligible rollover distribution does not include: any
distribution that is one of a series of substantially equal periodic payments
(not less frequently than annually) made for the life (or life expectancy) of
the distributee or the joint lives (or joint life expectancies) of the
distributee and the distributee's designated beneficiary, or for a specified
period of ten years or more; any distribution to the extent such distribution is
required under Section 401(a)(9) of the Code; and the portion of any
distribution that is not includible in gross income (determined without regard
to the exclusion for net unrealized appreciation with respect to employer
securities).
(b) Eligible Retirement Plan: An Eligible Retirement Plan is an
------------------------
individual retirement account described in Section 408(a) of the Code, an
individual retirement annuity described in Section 408(b) of the Code, an
annuity plan described in Section 403(a) of the Code, or a qualified trust
described in Section 401(a) of the Code, that accepts the
80
<PAGE>
distributee's Eligible Rollover Distribution. However, in the case of an
Eligible Rollover Distribution to the surviving spouse, an Eligible Retirement
Plan is an individual retirement account or individual retirement annuity.
(c) Distributee: A distributee includes an Employee or former
-----------
Employee. In addition, the Employee's or former Employee's surviving spouse and
the Employee's or former Employee's spouse or former spouse who is the alternate
payee under a qualified domestic relations order, as defined in Section 414(p)
of the Code, are distributees with regard to the interest of the spouse or
former spouse.
(d) Direct Rollover: A Direct Rollover is a payment by the Plan to
---------------
the Eligible Retirement Plan specified by the distributee.
IN WITNESS THEREFORE, this document has been signed and sealed by an
authorized member of the Retirement Committee this 29th day of December , 1994.
---- --------
RETIREMENT COMMITTEE UNDER THE
TYCO INTERNATIONAL LTD. RETIREMENT
SAVINGS AND INVESTMENT PLAN
By /s/ John A. Helfrich
---------------------------------
81
<PAGE>
SUPPLEMENT A
TO
TYCO INTERNATIONAL LTD.
RETIREMENT SAVINGS AND INVESTMENT PLAN
Special Provisions Applicable to Former Members in the Grinnell Corporation
Investment and Savings Plan for Certain Salaried Employees and to Certain Other
Grinnell Corporation Employees
- --------------------------------------------------------------------------------
PURPOSE
-------
Effective as of January 1, 1987, the Grinnell Corporation Investment and
Savings Plan for Certain Salaried Employees (the "Grinnell Plan") has been
merged into this Plan (the "Merger"), and the terms of this Plan superseded in
all respects the terms of the Grinnell Plan. This Supplement A provides for the
Merger and sets forth special provisions of the Plan that apply to Grinnell
Employees after December 31, 1986.
MERGER/APPLICATION OF PLAN
--------------------------
A.1 Special Definitions. For purposes of this Supplement A:
A.1.1 "Grinnell" means Grinnell Corporation, and, in the discretion of
--------
the Board of Directors of Grinnell Corporation, any predecessor or successor
thereof.
A.1.2 "Grinnell Accounts" means the various accounts maintained under
-----------------
the Grinnell Plan for Grinnell Participants immediately prior to the Merger.
A.1.3 "Grinnell Employee" means an individual who, on January 31,
-----------------
1986, was an Employee, as defined in Section 2.17 of the Grinnell Plan, and who,
on January 1, 1987, is an Employee as defined in this Plan.
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<PAGE>
A.1.4 "Grinnell Participant" means a Grinnell Corporation Employee
--------------------
who, on December 31, 1986, was a Member of the Grinnell Plan, as defined in
Section 2.25 of that Plan.
A.1.5 "Grinnell Plan" means the Grinnell Corporation Investment and
-------------
Savings Plan for Certain Salaried Employees, as in effect prior to the Merger.
A.1.6 "Grinnell Trust Fund" means the Trust Fund and its different
-------------------
components maintained under the Grinnell Plan immediately prior to the Merger.
A.2 Merger. Effective as of January 1, 1987, the Grinnell Plan is merged
------
into this Plan and the terms of this Plan supersede in all respects the terms of
the Grinnell Plan except as set forth in this Supplement A.
A.3 Transfer of Grinnell Trust Fund; Transfer Account.
-------------------------------------------------
A.3.1 Transfer to Insurance Company. The assets in the Grinnell Trust
-----------------------------
Fund shall be transferred as soon as practicable after December 31, 1986 to an
Insurance Company for investment in a Guaranteed Interest Contract as determined
by the Plan Administrator.
A.3.2 Treatment Prior to Transfer. Until the date that the complete
---------------------------
transfer of the Grinnell Trust Fund specified in Section A.3.1 occurs, the
trustee under the Grinnell Plan shall hold the balance of such Fund and the
amount to be transferred shall be adjusted for investment income or loss.
Pending the complete transfer, the trustee of the Grinnell Plan shall be deemed
a trustee of this Plan, and shall hold such amounts in trust under this Plan.
A.3.3 Prior Plan Accounts. The Plan Administrator shall maintain such
-------------------
Prior Plan Account or Accounts as it deems appropriate on behalf of each
Grinnell Participant. The Transfer Accounts shall record such Participant's
interest in this Plan which is
83
<PAGE>
attributable to his Grinnell Accounts. In addition, until all assets of the
Grinnell Trust Fund are actually transferred to an Insurance Company for
investment in a Guaranteed Interest Contract, the Grinnell Participants'
Transfer Accounts shall be separately credited with their proportionate share of
investment income or loss on the untransferred assets, and no other Participant
in this Plan shall share in such income or loss. Grinnell Participants shall be
100% vested in their Prior Plan Accounts.
A.4 Participation. Each Grinnell Employee shall be eligible to become an
-------------
active Participant in this Plan on January 1, 1987. A Grinnell Participant who
does not elect to enter the Plan as an active Participant in accordance with
Section 2.01 of this Plan shall be an inactive Participant with respect to his
Prior Plan Accounts until such time as either he elects to become an active
Participant or he ceases to be a Participant following the distribution or
withdrawal of his Prior Plan Accounts.
A.5 Service Prior to January 1, 1987. Each Grinnell Employee's Service, as
--------------------------------
defined in Section 2.31 of the Grinnell Plan, for periods prior to January 1,
1987, rounded to the nearest whole number of years, shall constitute years of
Service under this Plan for all purposes.
A.6 Computation Period. The Computation Period of each Grinnell Employee
------------------
with regard to years of Service after December 31, 1986 shall be the 12-month
period beginning on January 1, 1987 and on each succeeding January 1st.
A.7 Withdrawals Prior to Termination of Employment and Other Distributions.
---------------------------------------------------------------------
A.7.1 Funds Other Than 401(k). Withdrawals from and other
-----------------------
distributions of a Grinnell Participant's Prior Plan Accounts of amounts
attributable to such Participant's basic and supplemental after-tax savings and
his matching contributions (and earnings
84
<PAGE>
thereon) under the Grinnell Plan shall be subject to the provisions of Articles
V and VII of this Plan regarding Voluntary Accounts, except that no such
withdrawal shall result in the Participant's suspension under Section 5.03 of
this Plan.
A.7.2 Section 401(k) Funds. Withdrawals from and other distributions
--------------------
of a Grinnell Participant's Prior Plan Accounts of amounts attributable to the
Participant's basic and supplemental before-tax savings under the Grinnell Plan
shall be subject to the provisions of Articles V and VII of this Plan regarding
Voluntary Tax-Deferred Accounts, except that they shall not result in the
Participant's suspension under Section 5.03 of this Plan.
85
<PAGE>
SUPPLEMENT B
TO
TYCO INTERNATIONAL LTD.
RETIREMENT SAVINGS AND INVESTMENT PLAN
Special Provisions Applicable to Former Participants
in the Mueller Savings and Investment Plan
- --------------------------------------------------------------------------------
PURPOSE
-------
Effective as of December 31, 1988, the Mueller Savings Investment Plan (the
"Mueller Plan") has been merged into this Plan (the "Merger"), and the terms of
this Plan supersede in all respects the terms of the Mueller Plan. This
Supplement B provides for the Merger and sets forth special provisions of the
Plan that apply to participants in the Mueller Plan on or after December 31,
1988.
MERGER OF PLANS
---------------
B.1 Special Definitions. For purposes of this Supplement B, the following
-------------------
defined terms shall have the meaning set forth below:
B.1.1 Deferred Income Account means the account of a Mueller
-----------------------
Participant established pursuant to Section 2.9 of the Mueller Plan for the
purpose of crediting his deferrals under the Mueller Plan and all earnings and
losses thereon.
B.1.2 Employer Contribution Account means the account of a Mueller
-----------------------------
Participant established pursuant to Section 2.12 of the Mueller Plan for the
purpose of crediting his share of Employer matching contributions and
forfeitures under the Mueller Plan and all earnings and losses thereon.
86
<PAGE>
B.1.3 Mueller Employee means an individual who, on December 31, 1988,
----------------
was an Employee, as defined in Section 2.10 of the Mueller Plan, and who, on
December 31, 1988, is an Employee as defined in this Plan.
B.1.4 Mueller Participant means an Employee who, on December 31, 1988,
-------------------
was a Member of the Mueller Plan, as defined in Section 2.15 of that Plan.
B.1.5 Mueller Plan means the Mueller Savings and Investment Plan, as
------------
in effect immediately prior to the Merger.
B.1.6 Mueller Trust Fund means the trust fund and its different
------------------
components maintained under the Mueller Plan immediately prior to the Merger.
B.1.7 Participant Loans. All outstanding loans to Mueller
-----------------
Participants pursuant to Section 6.9 of the Mueller Plan on December 31, 1988.
B.2 Merger. Effective as of December 31, 1988, the Mueller Plan is merged
------
into this Plan and the terms of this Plan supersede in all respects the terms of
the Mueller Plan except as set forth in this Supplement B.
B.3 Transfer of Mueller Trust Fund
------------------------------
B.3.1 Transfer to Trust. The assets of the Mueller Trust Fund shall be
-----------------
transferred as soon as practicable after December 31, 1988 to the Trust
established under this Plan.
B.3.2 Separate Records. The Plan Administrator shall maintain separate
----------------
records for each Mueller Participant to the extent necessary to apply the
provisions of this Supplement B to the Mueller Participants.
B.4 Participation. Each Mueller Participant shall be eligible to become a
-------------
Participant in this Plan on January 1, 1989. A Mueller Participant who does not
elect to
87
<PAGE>
enter this Plan as an active Participant in accordance with Section
2.01 of this Plan shall be an inactive Participant until such time as either he
elects to become an active Participant or he ceases to be a Participant
following the distribution or withdrawal of his Deferred Income Account and
Employer Contribution Account. All other Mueller Employees shall be eligible to
become Participants of this Plan only if they otherwise meet the eligibility
provisions of Section 2.01 of this Plan.
B.5 Service. Each Mueller Employee's service with Mueller Co. shall be
-------
recognized as service under this Plan for all purposes.
B.6 Vesting. Each Mueller Participant shall be fully vested in his
-------
Deferred Income Account and Employer Contribution Account. In addition, each
Mueller Participant with at least five (5) years of Service on December 31,
1988 shall always be fully vested in all his accounts under this Plan. All
other Mueller Employees shall become vested in their Employer Accounts under
this Plan only in accordance with the provisions of Section 6.01.
B.7 Withdrawals Prior to Termination of Employment. Withdrawals from
----------------------------------------------
amounts standing to the credit of a Mueller Participant's Deferred Income
Account as of December 31, 1988 shall be subject to the provisions of Article V
of this Plan, except that no such withdrawal shall result in the Participant's
suspension under Section 5.03 of this Plan.
B.8 Participant Loans. All Mueller Participants with Participant Loans
-----------------
outstanding on December 31, 1988 shall continue to make principal and interest
payments in accordance with the provisions of their promissory notes to the
Mueller Plan. Each such loan shall continue to be deemed a separate investment
of each such Mueller Participant and shall be credited to his separate loan
account. All interest and principal payments shall first be
88
<PAGE>
credited to such Mueller Participant's separate loan account and shall be
reinvested as soon as practicable in the same manner as other assets of this
Plan.
If any part or all of the amount standing to the credit of the Mueller
Participant's accounts under the Plan shall become distributable to the
Participant or his Beneficiary while a Participant Loan is outstanding, the Plan
Administrator shall direct the Trustee to apply the amount of such distribution
in payment of the entire loan principal, whether or not then due, and any
interest theretofore accrued, before distributing the balance, if any, to the
Participant or his Beneficiary.
B.9 Distributions upon Termination of Employment. Each Mueller Participant
--------------------------------------------
shall receive the distribution of his accounts under the Plan in accordance with
the provisions of Articles VI, VII and IX of this Plan. In addition, each
Mueller Participant shall have the right to elect to receive the amounts
standing to the credit of his Deferred Income Account and Employer Contribution
Account as of December 31, 1988 in uniform annual or more frequent installments
(except that the first or last installment may be larger than the remaining
installments) over a period not exceeding his life expectancy. If a Mueller's
Participant dies prior to his required beginning date (as defined in Section
401(a)(9) of the Code and regulations promulgated thereafter), his Beneficiary
shall have the right to receive the amounts standing to the credit of the
Mueller Participant's Deferred Income Account and Employer Contribution Account
as of December 31, 1988 in installments, commencing no later than December 31
following the year of the Participant's death and payable over a period not
longer than the Beneficiary's life expectancy. If the Participant's
Beneficiary is his spouse, installment periods need not commence any earlier
than on the date the Mueller Participant would have attained age 70-1/2. A
Participant's or a Beneficiary's life
89
<PAGE>
expectancy shall be based on Table V, Treasury Regulation Section 1.72-9,
rounded down to the nearest whole number.
90
<PAGE>
SUPPLEMENT C
TO
TYCO INTERNATIONAL LTD.
RETIREMENT SAVINGS AND INVESTMENT PLAN
Special Provisions Applicable to Former Members in the
Wormald U.S. Savings and Retirement Fund
- --------------------------------------------------------------------------------
PURPOSE
-------
On and around October 1, 1994, the Wormald U.S. Savings and Retirement Fund
(the "Wormald Plan") will be merged into this Plan (the "Merger"), and the terms
of this Plan superseded in all respects the terms of the Wormald Plan. This
Supplement C provides for the Merger and sets forth special provisions of the
Plan that apply to former members in the Wormald Plan after October 1, 1994.
MERGER OF PLANS
---------------
C.1 Special Definitions. For purposes of this Supplement C, the following
-------------------
defined terms shall have the meaning set forth below:
C.1.1 Active Wormald Participant means an Employee of Ansul Fire
--------------------------
Protection who is an Eligible Employee as defined in Section 1.13 of this Plan
and who, on the effective date of the Merger, has assets maintained for his
behalf in the Wormald Trust Fund.
C.1.2 Additional Contributions Account, Basic Contributions Account,
-------------------------------------------------------------
Employer Matching Contributions Account, Merged Contributions Account, Prior
- ----------------------------------------------------------------------------
Plan Basic Contributions Account, Retroactive Contributions Account, Trustee
- ----------------------------------------------------------------------------
Transfer Contributions Account and Rollover Contributions mean the accounts of a
- ---------------------------------------------------------
Participant established and maintained pursuant to Section 5.1 of the Wormald
Plan.
91
<PAGE>
C.1.3 Base Pay means an Active Wormald Participant's total wages and
--------
salaries (excluding only incentive payments and bonuses) that would be paid for
services performed, prior to any reduction for Tax-Deferred Contributions or
other contributions to a cafeteria plan pursuant to Section 125 of the Code, as
limited by the provisions of Section 1.08(c).
C.1.4 Former Wormald Participant means a former Employee of Ansul Fire
--------------------------
Protection or Wormald U.S., Inc. who, on the effective date of the Merger, has
assets maintained for his behalf in the Wormald Trust Fund.
C.1.5 Participant Loans. All outstanding loans to Wormald
-----------------
Participants pursuant to Section 7.9 of the Wormald Plan on the effective date
of the Merger.
C.1.6 Wormald Participant means either an Active Wormald Participant
-------------------
or a Former Wormald Participant.
C.1.7 Wormald Plan means the Wormald U.S. Savings and Retirement Fund,
------------
as in effect immediately prior to the Merger.
C.1.8 Wormald Trust Fund means the trust fund maintained under the
------------------
Wormald Plan immediately prior to the Merger.
C.2 Merger. Effective as of October 1, 1994, the Wormald Plan is merged
------
into this Plan and the terms of this Plan supersede in all respects the terms of
the Wormald Plan except as set forth in this Supplement C. The terms of this
Plan will also serve to amend the Wormald Plan with all recent changes in tax
laws, including the Tax Reform Act of 1986, the Unemployment Compensation
Amendments of 1992, and the Revenue Reconciliation Act of 1993 and such
amendments shall be effective retroactively to the date or dates as may be
required by law.
92
<PAGE>
C.3 Transfer of Wormald Trust Fund
------------------------------
C.3.1 Transfer to Trust. The assets of the Wormald Trust Fund shall be
-----------------
transferred on or about October 1, 1994 to the Trust established under this
Plan. The assets in the money market fund under the Wormald Trust Fund will be
merged with the assets in the Retirement Government Money Market Fund under the
Trust; the assets in the fixed income fund under the Wormald Trust Fund will be
merged with the assets of the Fixed Interest Rate Fund under the Trust; and the
assets in the balanced fund under the Wormald Trust Fund will be merged with the
assets of the Balanced Fund in the Trust.
C.3.2 Separate Records. The Plan Administrator shall maintain separate
----------------
records for each Wormald Participant to the extent necessary to apply the
provisions of this Supplement C to the Wormald Participants.
C.3.3 Accounts. On and after the effective date of the Merger, (a) the
--------
assets of each Wormald Participant's Basic Contributions Account shall be
maintained in his Voluntary Tax-Deferred Account under the Plan; (b) the assets
of each Wormald Participant's Additional Contributions Account, Retroactive
Additional Contributions Account and Prior Plan Basic Contributions Account
shall be maintained in his Voluntary Account; (c) the assets of each Wormald
Participant's Employer Matching Contributions Account shall be maintained in his
Prior Plan Account; and (d) the assets of each Wormald Participant's Merged Plan
Contributions Account, Trustee Transfer Contributions Account, and Rollover
Contributions Account shall be maintained in his Rollover Account.
C.4 Vesting. Each Active Wormald Participant shall be fully vested in his
-------
Voluntary Tax-Deferred Account, Tax-Deferred Account, Participant Account,
Voluntary Account, Prior Plan Account and Rollover Account under this Plan.
Active Wormald
93
<PAGE>
Participants shall become vested in their Employer Accounts under
this Plan only in accordance with the provisions of Section 6.01.
C.5 Special Matching Contribution. Each Active Wormald Participant shall be
-----------------------------
entitled to receive an additional Employer matching contribution, subject to the
following rules:
C.5.1 For the period beginning on or after October 1, 1994 in which an
Active Wormald Participant makes Tax-Deferred Contributions to this Plan, he
shall be entitled to receive an additional Employer matching contribution equal
to 70% of his Voluntary Tax-Deferred Contributions; provided, however, that
Voluntary Tax-Deferred Contributions in excess of five percent (5%) of his Base
Pay for such period shall not be matched.
C.5.2 The additional Employer Matching Contributions shall be credited
to the Active Wormald Participant's Prior Plan Account.
C.6 Withdrawals
-----------
C.6.1 From Voluntary Account and Voluntary Tax-Deferred Account.
---------------------------------------------------------
Withdrawals by an Active Wormald Participant from his Voluntary Account and
Voluntary Tax-Deferred Account shall be subject to the provisions of Article V,
except that no such withdrawal shall result in any suspension under Section 5.03
of the Plan.
C.6.2 From Prior Plan Account. An Active Wormald Participant may also
-----------------------
withdraw from his Prior Plan Account for any reason; provided, however, that if
such withdrawal occurs prior to the fifth anniversary of the Active Wormald
Participant's initial participation in the Wormald Plan or this Plan for reasons
other than accident, or sickness or temporary disability of such Participant or
a member of his immediate family, such
94
<PAGE>
Participant's layoff, or a death in such Participant's immediate family, such
Participant may not withdraw funds from his Prior Plan Account attributable to
contributions which have been held in the Wormald Plan and this Plan for less
than two (2) years.
C.7 Participant Loans. All Wormald Participants with Participant Loans
-----------------
outstanding on the effective date of the Merger shall continue to make principal
and interest payments in accordance with their promissory notes to the Wormald
Plan. Each such loan shall continue to be deemed a separate investment of each
such Wormald Participant and shall be credited to his separate loan account. A
Former Wormald Participant who is no longer an Employee may not borrow any
additional amounts from the Plan.
C.8 Distributions Upon Termination of Employment. Each Wormald Participant
--------------------------------------------
upon termination of employment for any reason shall receive the distribution of
his accounts under the Plan in accordance with the provisions of Articles VI,
VII and IX of this Plan. In addition, each Wormald Participant shall have the
right to receive the distribution of his accounts pursuant to the optional forms
of distribution described in Article VII of the Wormald Plan in effect
immediately prior to the Merger.
C.9 Beneficiary. The determination of the Beneficiary of a Former Wormald
-----------
Participant shall be determined under the terms of the Wormald Plan in effect
immediately prior to the Merger.
95
<PAGE>
SUPPLEMENT D
TO
TYCO INTERNATIONAL LTD.
RETIREMENT SAVINGS AND INVESTMENT PLAN
- --------------------------------------------------------------------------------
As of January 1, 1994, the Plan is amended to allow participation by
Employees of Grinnell Fire Protection Systems ("Grinnell") in the bargaining
units which are represented by Local Union 669 and Local Union 821 of the United
Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada. This Supplement D sets forth special
provisions that apply to such Employees on and after January 1, 1994.
D.1 Special Definitions. For purposes of this Supplement D, the following
-------------------
defined terms shall have the meaning set forth below:
D.1.1 NASI Pension Plan means the National Automatic Sprinkler
-----------------
Industry Pension Plan.
D.1.2 Local 669 Employee means an hourly employee of Grinnell who is
------------------
employed as a sprinkler fitter (foreman, journeyman or apprentice), on the
active payroll of Grinnell as of April 12, 1994 and is in the bargaining unit
represented by Local Union 669.
D.1.3 Local 821 Employee means an hourly employee of Grinnell who is
------------------
employed as a sprinkler fitter (foreman, journeyman or apprentice), on the
active payroll of Grinnell as of August 8, 1994 and is in the bargaining unit
represented by Local Union 821.
D.1.4 Area Superintendent or Construction Manager means an employee of
-------------------------------------------
Grinnell who is classified as an area superintendent or construction manager, on
the active
96
<PAGE>
payroll of Grinnell in 1994, was an active participant in the NASI
Pension Plan and became ineligible to participate in the NASI Pension Plan
during 1994.
D.2 Eligibility. All Local 669 Employees actively at work at Grinnell on
-----------
April 12, 1994 shall be eligible to participate in the Plan on April 14, 1994.
All Local 821 Employees actively at work on August 8, 1994 shall be eligible to
participate in the Plan on August 8, 1994. An Area Superintendent or a
Construction Manager shall be eligible to participate in the Plan on the day he
became ineligible to participate in the NASI Pension Plan. Hourly employees of
Grinnell hired on or after April 13, 1994 and salaried employees of Grinnell
hired on or after January 2, 1994 shall be eligible to participate in the Plan
in accordance with the provisions of Section 2.01 of the Plan.
D.3 Service. The Plan shall recognize the years of service for vesting
-------
purposes of a Local 669 Employee, a Local 821 Employee or an Area Superintendent
or Construction Manager under the NASI Pension Plan as Service under this Plan
for purposes of vesting and eligibility for Supplemental Contributions. With
respect to an hourly employee of Grinnell who is employed as a sprinkler fitter
(foreman, journeyman or apprentice) on or after April 13, 1994 or a salaried
employee of Grinnell who is employed on or after January 2, 1994, the Plan shall
also recognize the years of service for vesting purpose of such employee under
the NASI Pension Plan as Service under this Plan for purposes of vesting and
eligibility for Supplemental Contributions.
D.4 Special One-Time Contribution. Each Local 669 Employee who became a
-----------------------------
Participant and each Area Superintendent or Construction Manager who became a
Participant shall be entitled to receive a special fully-vested one-time
contribution in his initial year of
97
<PAGE>
participation equal to $200 multiplied by his years of service recognized for
vesting purposes under the NASI Pension Plan, up to a maximum of $1,000.
D.5 Compensation. The Compensation (for purposes of Article II of the Plan)
------------
of employees covered under this Supplement D, other than Area Superintendents or
Construction Managers, shall be determined under the provisions of Section
1.08(a), but substituting the words "current calendar year" for the words "prior
calendar year."
98
<PAGE>
SUPPLEMENT E
TO
TYCO INTERNATIONAL LTD.
RETIREMENT SAVINGS AND INVESTMENT PLAN
Special Provisions Applicable to Former Members in the
Uni-Patch, Inc. 401(k) Profit Sharing Plan
- --------------------------------------------------------------------------------
PURPOSE
-------
On and around October 1, 1994, the Uni-Patch, Inc. 401(k) Profit Sharing
Plan ("Uni-Patch Plan") will be merged into this Plan (the "Merger"), and the
terms of this Plan superseded in all respect the terms of the Uni-Patch Plan.
This Supplement E provides for the Merger and sets forth special provisions that
apply to former members in the Uni-Patch Plan after October 1, 1994.
MERGER OF PLANS
---------------
E.1 Special Definitions. For purposes of this Supplement E, the following
-------------------
defined terms shall have the meaning set forth below:
E.1.1 Active Uni-Patch Participant means an Employee of Uni-Patch,
----------------------------
Inc. who is an Eligible Employee as defined in Section 1.13 of this Plan and
who, on the effective date of this Merger, has assets maintained for his behalf
in the Uni-Patch Plan.
E.1.2 Discretionary Non-Elective Account, Elective Deferral
-----------------------------------------------------
Account, Matching Non-Elective Account, and Rollover Account mean the accounts
- ------------------------------------------------------------
of a Participant and maintained pursuant to Section 5 of the Uni-Patch Plan.
<PAGE>
E.1.3 Former Uni-Patch Participant means a former Employee of
----------------------------
Uni-Patch, Inc. who, on the effective date of the Merger, has assets
maintained for his behalf in the Uni-Patch Trust Fund.
E.1.4 Uni-Patch Participant means either an Active Uni-Patch
---------------------
Participant or a Former Uni-Patch Participant.
E.1.5 Uni-Patch Plan means the Uni-Patch, Inc. 401(k) Profit
--------------
Sharing Plan, as in effect immediately prior to the Merger.
E.1.6 Uni-Patch Trust Fund means the trust fund maintained under the
--------------------
Uni-Patch Plan immediately prior to the Merger.
E.1.7 Merger. Effective as of October 1, 1994, the Uni-Patch Plan is
------
merged into this Plan and the terms of this Plan supersede in all respects the
terms of the Wormald Plan except as set forth in this Supplement E. The terms of
this Plan will also serve to amend the Uni-Patch Plan with all recent changes in
tax laws, including the Tax Reform Act of 1986, the Unemployment Compensation
Amendments of 1992, and the Revenue Reconciliation Act of 1993 and such
amendments shall be effective retroactively to the date or dates as may be
required by law.
E.3 Transfer of Uni-Patch Trust Fund.
--------------------------------
E.3.1 Transfer to Trust. The assets of the Uni-Patch Trust Fund shall
-----------------
be transferred on or about October 1, 1994 to the Trust established under this
Plan.
E.3.2 Separate Records. The Plan Administrator shall maintain separate
----------------
records for each Uni-Patch Participant to the extent necessary to apply the
provisions of this Supplement E to the Uni-Patch Participants.
100
<PAGE>
E.3.3 Accounts. On and after the effective date of the Merger, (a) the
--------
assets of each Uni-Patch Participant's Elective Deferral Account shall be
maintained in his Voluntary Tax-Deferred Account under the Plan; (b) the assets
of each Uni-Patch Participant's Matching Nonelective Account and Discretionary
Nonelective Account shall be maintained in his Prior Plan Account, and (c) the
assets of each Uni-Patch Participant's Rollover Account shall continue to be
maintained in his Rollover Account.
E.4 Vesting. Each Active Uni-Patch Participant shall be fully vested in his
-------
Voluntary Tax-Deferred Account, Rollover Account and Prior Plan Account under
this Plan. In addition, each Active Uni-Patch Participant with at least three
(3) years of vesting service under the Uni-Patch Plan on September 30, 1994
shall always be fully vested in his Employer Account under this Plan. All other
Active Uni-Patch Participants shall become vested in their Employer Accounts
under this Plan in accordance with the provisions of Section 6.01 of this Plan.
Notwithstanding the foregoing, years of Service for vesting service under this
Plan for an Uni-Patch Participant for periods prior to January 1, 1995 shall be
determined on the basis of completion of 1,000 Hours of Service in a calendar
year, and for periods on and after January 1, 1995, shall be determined on the
basis of the elapsed time method. An Active Uni-Patch Participant whose
employment is terminated in 1995 after being credited with 1,000 Hours of
Service, shall receive credit under the Plan for at least one (1) Year of
Service (for vesting purposes) for such period of Service.
E.5.1 From Voluntary Tax-Deferred Account. Withdrawals by an
-----------------------------------
Active Uni-Patch Participant for amounts standing to the credit of his
Voluntary Tax-Deferred Account shall be subject to the provisions of Article V.
101
<PAGE>
E.5.2 From Prior Plan Account. An Active Uni-Patch Participant who has
-----------------------
attained age 59 1/2 may withdraw from his Prior Plan Account, subject to the
spousal consent requirements of Section 5.05.
E.6 Distributions Upon Termination of Employment. Each Uni-Patch
--------------------------------------------
Participant upon termination of employment for any reason shall receive the
distribution of his accounts under the Plan in accordance with the provision of
Articles VI, VII and IX of this Plan. In addition, each Uni-Patch Participant
(or his Beneficiary) shall have the right to receive the amounts standing to the
credit of his Accounts pursuant to installment payments over a period certain in
monthly, quarterly, semi-annual or annual installments. The period over which
such payments is to be made to a Participant shall not extend beyond the
Participant's life expectancy (or the joint life and last survivor expectancies
of the Participant and his Beneficiary), subject to the minimum distribution
incidental benefit requirement, as determined in accordance with regulations
promulgated under Section 401(a)(9) of the Code. The life expectancy of the
Participant or the joint life and last survivor expectancies of the Participant
and his Beneficiary shall be determined using attained ages as of the calendar
years in which payments commence and Table V or VI of Treasury Regulations
Section.1.72-9. The life expectancy of the Participant and/or his spouse may not
be recalculated.
E.7 Beneficiary. The determination of the Beneficiary of a Former
-----------
Uni-Patch Participant shall be determined under the terms of the Uni-Patch Plan
in effect immediately prior to the Merger.
102
SIMPLEX HOURLY EMPLOYEES
RETIREMENT SAVINGS AND INVESTMENT PLAN
Amended and Restated as of July 1, 1993
---------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . 2
1.1 "Affiliated Company". . . . . . . . . . . . . . . . 2
1.2 "Basic Participant Contributions" . . . . . . . . . 2
1.3 "Basic Tax-Deferred Contributions". . . . . . . . . 2
1.4 "Beneficiary" . . . . . . . . . . . . . . . . . . . 3
1.5 "Break in Service". . . . . . . . . . . . . . . . . 3
1.6 "Code". . . . . . . . . . . . . . . . . . . . . . . 3
1.7 "Committee" . . . . . . . . . . . . . . . . . . . . 3
1.8 "Compensation". . . . . . . . . . . . . . . . . . . 3
1.9 "Disability". . . . . . . . . . . . . . . . . . . . 4
1.10 "Early Retirement Date" . . . . . . . . . . . . . . 5
1.11 "Effective Date". . . . . . . . . . . . . . . . . . 5
1.12 "Employee". . . . . . . . . . . . . . . . . . . . . 5
1.13 "Eligible Employee" . . . . . . . . . . . . . . . . 5
1.14 "Employer". . . . . . . . . . . . . . . . . . . . . 5
1.15 "Employer Account". . . . . . . . . . . . . . . . . 5
1.16 "Employer Matching Contributions" . . . . . . . . . 5
1.17 "Entry Date". . . . . . . . . . . . . . . . . . . . 5
1.18 "ERISA" . . . . . . . . . . . . . . . . . . . . . . 5
1.19 "Family Member" . . . . . . . . . . . . . . . . . . 6
1.20 "Forfeiture Date" . . . . . . . . . . . . . . . . . 6
1.21 "Forfeitures" . . . . . . . . . . . . . . . . . . . 6
1.22 "Highly Compensated Employee" . . . . . . . . . . . 6
1.23 "Hour of Service" . . . . . . . . . . . . . . . . . 6
1.24 "Investment Fund" or "Investment Funds" . . . . . . 8
1.25 "Normal Retirement Date". . . . . . . . . . . . . . 8
1.26 "Participant" . . . . . . . . . . . . . . . . . . . 8
1.27 "Participant Account" . . . . . . . . . . . . . . . 8
1.28 "Participant Contributions" . . . . . . . . . . . . 8
1.29 "Plan". . . . . . . . . . . . . . . . . . . . . . . 8
1.30 "Plan Administrator". . . . . . . . . . . . . . . . 8
1.31 "Plan Year" . . . . . . . . . . . . . . . . . . . . 8
1.32 "Prior Plan". . . . . . . . . . . . . . . . . . . . 9
1.33 "Qualified Nonelective Contributions" . . . . . . . 9
1.34 "Qualified Joint and Survivor Annuity". . . . . . . 9
1.35 "Rollover Account". . . . . . . . . . . . . . . . . 9
1.36 "Supplemental Participant Contributions". . . . . . 9
1.37 "Supplemental Tax-Deferred Contributions" . . . . . 10
1.38 "Tax-Deferred Account". . . . . . . . . . . . . . . 10
(i)
<PAGE>
1.39 "Tax-Deferred Contributions". . . . . . . . . . . . 10
1.40 "Trust" . . . . . . . . . . . . . . . . . . . . . . 10
1.41 "Trustee" . . . . . . . . . . . . . . . . . . . . . 10
1.42 "Valuation Date". . . . . . . . . . . . . . . . . . 10
1.43 "Vesting Computation Period". . . . . . . . . . . . 10
1.44 "Voluntary Account" . . . . . . . . . . . . . . . . 11
1.45 "Voluntary Participant Contributions" . . . . . . . 11
1.46 "Voluntary Tax-Deferred Account". . . . . . . . . . 11
1.47 "Voluntary Tax-Deferred Contributions". . . . . . . 11
1.48 "Year of Service" . . . . . . . . . . . . . . . . . 11
ARTICLE II PLAN PARTICIPATION. . . . . . . . . . . . . . . . . 12
2.1 Participation . . . . . . . . . . . . . . . . . . . 12
2.2 Cessation of Participation. . . . . . . . . . . . . 13
2.3 Reinstatement of Active Participation . . . . . . . 13
2.4 Break In Service. . . . . . . . . . . . . . . . . . 14
2.5 Transfer of Employment; Changes in Employment
Status . . . . . . . . . . . . . . . . . . . . . . 14
2.6 Reinstatement of Former Employees Who had
Previously Participated in a Prior Simplex
Pension Plan. . . . . . . . . . . . . . . . . . . . 15
ARTICLE III CONTRIBUTIONS . . . . . . . . . . . . . . . . . 16
3.1 Funding . . . . . . . . . . . . . . . . . . . . . . 16
3.2 Basic Contributions . . . . . . . . . . . . . . . . 16
3.3 Supplemental Contributions. . . . . . . . . . . . . 17
3.4 Employer Matching Contributions . . . . . . . . . . 18
3.5 Forfeitures . . . . . . . . . . . . . . . . . . . . 18
3.6 Voluntary Tax-Deferred Contributions. . . . . . . . 18
3.7 Voluntary Participant Contributions . . . . . . . . 19
3.8 Duration of Contributions . . . . . . . . . . . . . 20
3.9 Rollover Contributions. . . . . . . . . . . . . . . 21
3.10 Determination of Contributions. . . . . . . . . . . 21
3.11 Payment of Contributions. . . . . . . . . . . . . . 21
3.12 Changes in Level of Participation . . . . . . . . . 22
3.13 Profits Not Required. . . . . . . . . . . . . . . . 22
3.14 Election of Investments . . . . . . . . . . . . . . 23
ARTICLE IV LIMITATIONS ON CONTRIBUTIONS AND ALLOCATIONS. . . . 25
4.1 Limitation on Tax-Deferred Contributions. . . . . . 25
4.2 Limitation on Participant and Employer
Matching Contributions . . . . . . . . . . . . . 29
4.3 Qualified Nonelective Contributions and
Multiple Use Test . . . . . . . . . . . . . . . 33
(ii)
<PAGE>
4.4 Limitations on Annual Additions . . . . . . . . . . 34
ARTICLE V WITHDRAWALS PRIOR TO TERMINATION OF EMPLOYMENT. . . 38
5.1 Withdrawals from Voluntary Accounts . . . . . . . . 38
5.2 Withdrawals from Voluntary Tax-Deferred Accounts. . 38
5.3 Resumption of Voluntary Contributions . . . . . . . 40
5.4 Procedure for Withdrawal. . . . . . . . . . . . . . 40
5.5 Spousal Consent for Withdrawals . . . . . . . . . . 40
ARTICLE VI VESTING, TERMINATION OF EMPLOYMENT AND FORFEITURES. 42
6.1 Vesting . . . . . . . . . . . . . . . . . . . . . . 42
6.2 Termination of Employment . . . . . . . . . . . . . 42
6.3 Forfeitures . . . . . . . . . . . . . . . . . . . . 43
ARTICLE VII DISTRIBUTION AT RETIREMENT, DEATH, OR DISABILITY 45
7.1 Distributions at Retirement . . . . . . . . . . . . 45
7.2 Automatic Annuity Form. . . . . . . . . . . . . . . 48
7.3 Distributions Upon Incurring Disability . . . . . . 50
7.4 Distributions at Death. . . . . . . . . . . . . . . 50
7.5 Loans to Participants . . . . . . . . . . . . . . . 53
ARTICLE VIII ADMINISTRATION. . . . . . . . . . . . . . . . . 56
8.1 Allocation of Responsibility. . . . . . . . . . . . 56
8.2 Appointment of Plan Administrator . . . . . . . . . 56
8.3 Claims Procedure. . . . . . . . . . . . . . . . . . 57
8.4 Records and Reports . . . . . . . . . . . . . . . . 57
8.5 Powers and Duties of the Plan Administrator . . . . 58
8.6 Rules and Decisions . . . . . . . . . . . . . . . . 59
8.7 Authorization of Benefit Payments . . . . . . . . . 59
8.8 Application and Forms for Benefits. . . . . . . . . 59
8.9 Facility of Payment . . . . . . . . . . . . . . . . 60
8.10 Compensation of Plan Administrator and
Plan Expenses . . . . . . . . . . . . . . . . . . 60
8.11 Indemnification . . . . . . . . . . . . . . . . . . 61
ARTICLE IX MISCELLANEOUS . . . . . . . . . . . . . . . . . . . 62
9.1 Nonguarantee of Employment. . . . . . . . . . . . . 62
9.2 Rights of Employees and Beneficiaries . . . . . . . 62
9.3 Nonalienation of Benefits . . . . . . . . . . . . . 62
(iii)
<PAGE>
9.4 Discontinuance of Employer Contributions. . . . . . 63
9.5 No Reversion to Employer. . . . . . . . . . . . . . 63
9.6 Commencement and Timing of Distributions. . . . . . 63
9.7 Jurisdiction. . . . . . . . . . . . . . . . . . . . 65
9.8 Leased Employees. . . . . . . . . . . . . . . . . . 66
ARTICLE X AMENDMENTS. . . . . . . . . . . . . . . . . . . . . 67
10.1 Amendments. . . . . . . . . . . . . . . . . . . . . 67
ARTICLE XI SUCCESSOR EMPLOYER AND MERGER OR CONSOLIDATION OF
PLANS . . . . . . . . . . . . . . . . . . . . . . 68
11.1 Successor Employer. . . . . . . . . . . . . . . . . 68
11.2 Plan Assets . . . . . . . . . . . . . . . . . . . . 68
ARTICLE XII PLAN TERMINATION. . . . . . . . . . . . . . . . 70
12.1 Right to Terminate. . . . . . . . . . . . . . . . . 70
12.2 Partial Termination . . . . . . . . . . . . . . . . 70
12.3 Liquidation of the Plan . . . . . . . . . . . . . . 70
12.4 Manner of Distribution. . . . . . . . . . . . . . . 71
ARTICLE XIII DISCHARGE OF DUTIES BY FIDUCIARIES. . . . . . . 72
ARTICLE XIV TOP-HEAVY PROVISIONS. . . . . . . . . . . . . . 73
14.1 General Rule. . . . . . . . . . . . . . . . . . . . 73
14.2 Vesting Provisions. . . . . . . . . . . . . . . . . 73
14.3 Minimum Benefit Provisions. . . . . . . . . . . . . 73
14.4 Limitation on Compensation. . . . . . . . . . . . . 74
14.5 Adjustment to Combined Plan Limit . . . . . . . . . 74
14.6 Top-Heavy Plan Definition . . . . . . . . . . . . . 74
14.7 Key Employee. . . . . . . . . . . . . . . . . . . . 76
14.8 Non-Key Employee. . . . . . . . . . . . . . . . . . 76
14.9 Change from Top-Heavy Status. . . . . . . . . . . . 76
ARTICLE XV DIRECT ROLLOVERS. . . . . . . . . . . . . . . . . . 78
15.01 Application of this Article . . . . . . . . . . . . 78
15.02 Definitions . . . . . . . . . . . . . . . . . . . . 78
(iv)
<PAGE>
FOREWORD
--------
The Money Purchase Pension Plan For Employees of Simplex Wire and Cable
Company included in the Bargaining Unit Represented by Local Union #2208, IBEW
(the "Plan") was established on January 1, 1981 by Simplex Wire and Cable
Company (the "Employer"), for the benefit of its eligible employees.
The Plan was subsequently amended and restated, effective as of January 1,
1990, to convert it into a profit-sharing plan pursuant to which the Employer
may make Tax-Deferred Contributions on behalf of its Eligible Employees. At that
time, the name of the Plan was changed to the Simplex Hourly Employees
Retirement Savings and Investment Plan and certain changes required by the Tax
Reform Act of 1986 were also made.
Effective as of July 1, 1992, the Plan was further amended and again
restated to make further changes required by the final regulations and to permit
directed investments by its participants.
Effective as of July 1, 1993, the Plan is again amended and restated to
permit plan loans, to change the eligibility requirement and to make other
administrative changes to the Plan.
<PAGE>
ARTICLE I
---------
DEFINITIONS
-----------
1.1 "Affiliated Company" means (a) a corporation which, together with
Simplex Technologies, Inc., is a member of a controlled group of corporations
(as defined in Section 414(b) of the Code), (b) a trade or business (whether or
not incorporated) which is under common control (as defined in Section 414(c) of
the Code) with Simplex Wire and Cable Company, (c) a corporation, partnership or
other entity which, together with Simplex Wire and Cable Company, is a member of
an affiliated service group (as defined in Section 414(m) of the Code), or (d) a
corporation, partnership or other entity which must be aggregated with Simplex
Wire and Cable Company pursuant to regulations promulgated under Section 414(o)
of the Code. For purposes of determining an Employee's Hours of Service, Years
of Service, and the occurrence of a Break in Service under the Plan, any period
of employment with Simplex Technologies, Inc. or with an Affiliated Company,
including periods of employment with an Affiliated Company or any predecessor
entity prior to the date on which such entity became an Affiliated Company if
the Employee is employed by such entity on the date of acquisition, shall be
recognized.
1.2 "Basic Participant Contributions" shall mean the after-tax basic
contributions paid by a Participant under the Plan in accordance with Section
3.2(b) of the Plan.
1.3 "Basic Tax-Deferred Contributions" shall mean the contributions made by
the Employer for each Participant pursuant to Section 3.2(a) of the Plan which
are made on account of a salary adjustment agreement with such Participant.
2
<PAGE>
1.4 "Beneficiary" shall mean the person(s) or other recipient(s) designated
in accordance with the provisions of Article VII hereof to receive any death
benefit which may become payable under this Plan, and includes the surviving
spouse of a Participant who is deemed to be a designated Beneficiary pursuant to
Section 7.4(b).
1.5 "Break in Service" shall mean a Vesting Computation Period in which an
Employee is not credited with more than 500 Hours of Service.
1.6 "Code" shall mean the Internal Revenue Code of 1986, and any amendments
thereto, and any rulings and regulations thereunder.
1.7 "Committee" shall mean the Retirement Committee appointed pursuant to
Article VIII hereof.
1.8 "Compensation" shall mean:
(a) total taxable W-2 earnings for the previous calendar year paid to
a Participant by the Employer for services rendered, including amounts which
would have been paid to the Participant as cash compensation but for an election
by such Participant under Section 125 or 401(k) of the Code, but excluding
amounts in excess of $200,000, subject to cost-of-living adjustments made by the
Secretary of Treasury or his delegate. For Plan Years beginning on or after
January 1, 1994, the limitation shall be reduced to $150,000.
(b) Notwithstanding (a) above, for (i) any former Participant whose
status as an active Participant is reinstated upon his reemployment pursuant to
Section 2.3, (ii) any former Employee who becomes an active Participant upon his
reemployment pursuant to Section 2.3, and (iii) with respect to Employees who
become Participants for the first time on or after April 1, 1993, Compensation
for the first year of participation or first year of
3
<PAGE>
reinstatement of active participation (and the second year of participation or
reinstatement of active participation if the Participant does not have a full
year of employment during his first year of participation or reinstatement)
shall mean the Participant's annualized rate of base compensation on his
Employment Commencement Date (or date of reemployment). In the case of an hourly
Employee, Compensation shall be annualized based on 2,000 hours. For succeeding
years of participation, Compensation shall be as in (a) above.
(c) In determining the Compensation of a Participant for purposes of
this limitation, the rules of Section 414(q)(6) of the Code shall apply, except
that in applying such rules, the term "family" shall include only the spouse of
the Participant and any lineal descendants of the Participant who have not
attained age 19 before the close of the Plan Year. If, as a result of the
application of such rules, the adjusted limitation is exceeded, then the
limitation shall be prorated among the affected individuals in proportion to
each such individual's Compensation as determined under this section prior to
application of the limitation.
1.9 "Disability" shall mean a Participant's permanent and total incapacity
of engaging in any employment for the Employer due to physical or mental
reasons. Disability shall be deemed to exist only when a written application has
been filed with the Employer by or on behalf of such Participant and when such
Disability is certified to the Employer by a licensed physician approved by the
Employer; provided, however, that in the event any such Participant meets the
requirements for disability benefits under the Social Security Law then in
effect, such Participant shall thereafter be deemed to be disabled within the
meaning of this definition.
4
<PAGE>
1.10 "Early Retirement Date" shall mean the date on which a Participant
may, subject to the further provisions of this Section 1.10, terminate
employment and be entitled to a distribution of such Participant's Employer
Account in accordance with Article VII. A Participant's Early Retirement Date
may occur on the first day of any month on or following such Participant's 55th
birthday.
1.11 "Effective Date" of this amendment and restatement shall mean July 1,
1993. The original effective date of this Plan shall mean January 1, 1981.
1.12 "Employee" shall mean any individual who is receiving remuneration for
services rendered to the Employer or an Affiliated Company as a common law
employee.
1.13 "Eligible Employee" shall mean a person who is a regular hourly-paid
employee working in production, maintenance or quality job control, and who is
included on the active employment rolls of the Employer on or after the
Effective Date.
1.14 "Employer" shall mean Simplex Technologies, Inc. or its successor(s).
1.15 "Employer Account" shall mean that portion of a Participant's interest
in this Plan which is attributable to the Employer Matching Contributions made
on such Participant's behalf hereunder.
1.16 "Employer Matching Contributions" shall mean the contribution due and
payable by the Employer in accordance with Section 3.4 of this Plan.
1.17 "Entry Date" shall mean January 1, April 1, July 1 or October 1.
1.18 "ERISA" shall mean Public Law No. 93-406, the Employee Retirement
Income Security Act of 1974, and any amendments thereto.
5
<PAGE>
1.19 "Family Member" shall mean the spouse or lineal ascendants or
descendants (and their spouses) of an Employee who owns (or is considered to own
within the meaning of Section 318 of the Code) more than five percent (5%) of
the outstanding stock of the Employer or an Affiliated Company or who is a
member of a group consisting of the ten (10) Highly Compensated Employees paid
the greatest Compensation during the plan year.
1.20 "Forfeiture Date" shall mean the date the Participant ceases to be an
Employee. A Participant who has no vested interest in his Employer Account shall
be deemed to be cashed-out of his Employer Account on his Forfeiture Date.
1.21 "Forfeitures" shall mean the portion of a Participant's Employer
Contributions Account which is forfeited in accordance with Section 6.3 of the
Plan.
1.22 "Highly Compensated Employee" shall mean any person who is a "highly
compensated employee" within the meaning of Section 414(q) of the Code and the
regulations promulgated thereunder.
1.23 "Hour of Service" shall mean:
(a) Each hour for which an Employee is paid, or entitled to payment,
for the performance of duties for the Employer. These hours shall be credited to
the Employee for the Vesting Computation Period in which the duties are
performed; and
(b) Each hour for which an Employee is paid, or entitled to payment by
the 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. No more than 501 Hours of Service shall
be credited under this paragraph for a single
6
<PAGE>
continuous period (whether or not such period occurs in a single computation
period). Hours under this paragraph shall be calculated and credited pursuant to
Section 2530.200b-2(b) and (c) of the Department of Labor Regulations which are
incorporated herein by this reference; and
(c) Each hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by the Employer. The same Hours of
Service shall not be credited both under paragraphs (a) or (b), as the case may
be, and under this paragraph (c). These hours shall be credited to the Employee
for the Vesting Computation Period in which the award, agreement or payment is
made.
Solely for the purposes of determining whether a Break in Service has
occurred in a Vesting Computation Period, an Employee who is absent from work by
reason of pregnancy, birth or adoption of a child, or for purposes of caring for
such child for a period beginning immediately following such birth or adoption
shall receive credit for the Hours of Service which would otherwise have been
credited to such Employee but for such absence, or in any case, in which such
hours cannot be determined, eight (8) Hours of Service per day of such absence;
provided, however, that the number of Hours of Service credited under this
paragraph shall not exceed the difference between 501 and the number of Hours of
Service with which such Employee would have been credited for the Vesting
Computation Period to which this paragraph is applicable. The Hours of Service
credited under this paragraph shall be credited in the first Vesting Computation
Period in which such credit is necessary to avoid a Break in Service.
7
<PAGE>
1.24 "Investment Fund" or "Investment Funds" shall mean such one or more
investment vehicles, including but not limited to mutual funds and insurance
contracts, which the Plan Administrator may from time to time, in its sole
discretion, specify as being available for the investment of Trust assets.
1.25 "Normal Retirement Date" shall mean a Participant's 65th birthday.
1.26 "Participant" shall mean an Eligible Employee who is participating in
the Plan in accordance with the provisions of Article II.
1.27 "Participant Account" shall mean that portion of a Participant's
interest in this Plan which is attributable to the Participant's Basic and
Supplemental Participant Contributions.
1.28 "Participant Contributions" shall mean and include a Participant's
Basic Participant Contributions, Supplemental Participant Contributions and
Voluntary Participant Contributions, collectively.
1.29 "Plan" shall mean the Simplex Hourly Employees Retirement Savings and
Investment Plan. Prior to 1990, the Plan was known as the Money Purchase Pension
Plan for Employees of Simplex Wire and Cable Company included in the Bargaining
Unit Represented by Local Union #2208, I.B.E.W.
1.30 "Plan Administrator" shall mean the Committee, or its successor(s),
who shall have those responsibilities of administering the Plan as set forth in
Article VIII hereof.
1.31 "Plan Year" shall mean the twelve (12) month period commencing on any
January 1, and ending on the succeeding December 31.
8
<PAGE>
1.32 "Prior Plan" shall mean the Pension Plan for Employees of Simplex Wire
and Cable Company Included in the Bargaining Unit Represented by Local Union
#2208, I.B.E.W.
1.33 "Qualified Nonelective Contributions" shall mean contributions made by
the Employer on behalf of a Participant that (i) the Participant may not elect
to receive in cash until distributed from the Plan, (ii) is 100% vested and
nonforfeitable when made, and (iii) is not distributed from the Plan to the
Participant or his Beneficiary before the earlier of his separation from
service, death, Disability or the occurrence of any such events described in
Section 9.6(d), subsections (ii), (iii) or (iv). Qualified Nonelective
Contributions shall be allocated to a Participant's Tax-Deferred Account.
1.34 "Qualified Joint and Survivor Annuity" shall mean an annuity for the
life of the Participant with a survivor annuity for the life of the
Participant's spouse which is neither (i) less than one-half (1/2) of, nor (ii)
greater than, the amount of the annuity payable during the joint lives of the
Participant and the Participant's spouse.
1.35 "Rollover Account" shall mean that portion of a Participant's interest
in this Plan which is attributable to 100% of the value of the benefit, if any,
the Participant elected to roll over to this Plan from a Prior Plan, and/or
which is attributable to any rollover contributions which the Participant made
to the Plan pursuant to Section 3.9.
1.36 "Supplemental Participant Contributions" shall mean the after-tax
contributions paid by a Participant in accordance with Section 3.3(b) of the
Plan.
9
<PAGE>
1.37 "Supplemental Tax-Deferred Contributions" shall mean the contributions
made by the Employer for each Participant pursuant to Section 3.3(a) of the Plan
which are made on account of a salary adjustment agreement with such
Participant.
1.38 "Tax-Deferred Account" shall mean that portion of a Participant's
interest in the Plan which is attributable to the Participant's Basic and
Supplemental Tax-Deferred Contributions and Qualified Nonelective Contributions.
1.39 "Tax-Deferred Contributions" shall mean and include a Participant's
Basic Tax-Deferred Contributions, Supplemental Tax-Deferred Contributions and
Voluntary Tax-Deferred Contributions, collectively.
1.40 "Trust" shall mean the trust created by an agreement between the
Employer or an Affiliated Company and the Trustee for purposes of holding Plan
assets.
1.41 "Trustee" shall mean the trustee duly designated under the trust
agreement and any duly appointed successor trustee or trustees.
1.42 "Valuation Date" shall mean the last business day of each month
through September 30, 1993 and from October 1, 1993 onwards, shall mean each
business day of the Plan Year on which the New York Stock Exchange is open or
any other date the Committee shall designate.
1.43 "Vesting Computation Period" shall mean the twelve (12) consecutive
month period commencing on the date the Employee first performs an Hour of
Service and each anniversary thereof. If an Employee is rehired after forfeiting
his prior Service, the Employee's Vesting Computation Period shall be based on
the Employee's date of rehire.
10
<PAGE>
1.44 "Voluntary Account" shall mean that portion of a Participant's
interest in this Plan which is attributable to the Participant's Voluntary
Participant Contributions. This account shall be treated as a separate contract
for purposes of Section 72(e)(9) of the Code.
1.45 "Voluntary Participant Contributions" shall mean the voluntary
after-tax contributions made to the Plan by a Participant pursuant to Section
3.7.
1.46 "Voluntary Tax-Deferred Account" shall mean the portion of a
Participant's interest in the Plan which is attributable to the Participant's
Voluntary Tax-Deferred Contributions.
1.47 "Voluntary Tax-Deferred Contributions" shall mean the contributions
made by the Employer for each Participant pursuant to Section 3.6 of the Plan,
which are made on account of a salary adjustment agreement with such
Participant.
1.48 "Year of Service" shall mean a Vesting Computation Period in which an
Employee completes at least 1,000 Hours of Service.
Wherever used herein, a pronoun in the masculine gender shall be considered
as including the feminine gender unless the context clearly indicates otherwise.
11
<PAGE>
ARTICLE II
----------
PLAN PARTICIPATION
------------------
2.1 Participation. Each Eligible Employee who was actively participating in
-------------
the Plan on June 30, 1993 shall be eligible to continue as a Participant in this
Plan on July 1, 1993 and each other Eligible Employee, including each future
Eligible Employee, shall be eligible to become a Participant in this Plan as of
the Entry Date, which coincides with or immediately follows the later of:
(a) the Effective Date;
(b) the date which is the 90th day after the Eligible Employee's
Employment Commencement Date;
(c) the Employee's 18th birthday; and
(d) the date the Employee becomes an Eligible Employee.
The Plan Administrator shall notify each Eligible Employee on or before the
Entry Date next following the date such Employee meets the above eligibility
requirements and shall supply each such Eligible Employee with an application
form on which to apply for inclusion in the Plan and to authorize the Employer
to adjust the Employee's salary in consideration of the Tax-Deferred
Contributions to be made to the Plan by the Employer on such Employee's behalf
and/or to authorize the Employer to make regular payroll deductions of his Basic
Participant Contributions. Upon notification of eligibility and receipt of an
application, an Eligible Employee shall have 30 days in which to return the
completed application to the Plan Administrator who shall, in turn, notify the
Employer to begin making the necessary salary adjustments and Tax-Deferred
Contributions and/or payroll deductions
12
<PAGE>
and Basic Participant Contributions in accordance with Article III hereof. If an
Eligible Employee should elect not to be included in the Plan during such 30 day
period, such Employee may elect to become a Participant on the Entry Date
coincident with or next following the date such Employee has completed and
returned said application to the Plan Administrator.
2.2 Cessation of Participation.
--------------------------
A Participant shall become an inactive
Participant on the date such Participant's employment with the Employer
terminates. Such Participant shall remain an inactive Participant until the date
on which the balance of such Participant's accounts are distributed to such
Participant or are forfeited, at which time he shall cease to be a Participant.
Active participation in this Plan subsequent to either of those dates shall be
determined in accordance with Section 2.3.
2.3 Reinstatement of Active Participation.
-------------------------------------
If a Participant becomes an
inactive Participant or ceases to be such altogether and he is subsequently
reemployed by the Employer as an Eligible Employee or if a former Eligible
Employee terminates employment after fulfilling the eligibility requirements of
Section 2.1 but prior to enrolling in the Plan and he is subsequently reemployed
by the Employer as an Eligible Employee, he shall recommence active
participation in this Plan upon his date of reemployment or if such Participant
elects, on a subsequent Entry Date, provided such Participant agrees to a salary
adjustment in return for the Employer making equivalent Basic Tax-Deferred
Contributions to the Plan on such Participant's behalf and/or to authorize the
Employer to make payroll deductions of such Participant's Basic Participant
Contributions.
13
<PAGE>
2.4 Break In Service. The following shall apply to all Employees or
----------------
Participants who are reemployed after incurring a Break in Service:
(a) Employees or Participants Who Were Vested in Their Employer
-----------------------------------------------------------
Accounts.
- --------
With respect to an Employee or Participant who was vested in his
Employer Account prior to his termination of employment, his prior Years of
Service shall be fully restored upon reemployment.
(b) Employees or Participants Who Were Not Vested In Their Employer
---------------------------------------------------------------
Accounts.
- --------
With respect to an Employee or Participant who incurs a Break in
Service prior to his termination of employment, his prior Years of Service shall
be fully restored upon reemployment only if the number of his consecutive Breaks
in Service is less than the greater of five (5) or the aggregate number of Years
of Service before such break. If such Employee's or Participant's number of
consecutive Breaks in Service equals or exceeds the greater of five (5) or the
aggregate number of Years of Service before such break, his prior Years of
Service shall be forfeited and he shall be treated as a new Employee for vesting
purposes of the Plan and for purposes of determining his eligibility to make
Supplemental Contributions.
2.5 Transfer of Employment; Changes in Employment Status.
----------------------------------------------------
If an individual
should transfer employment from an Affiliated Company to the Employer or if an
individual should change employment status with the Employer and, in either
case, such individual thereby becomes an Eligible Employee, then for the
purposes of determining the Compensation of such an Eligible Employee,
compensation paid by such Affiliated Company shall be included as if it had been
paid by the Employer. If an Eligible Employee should
14
<PAGE>
transfer employment from the Employer to an Affiliated Company or if an
Eligible Employee should change employment status with the Employer and, in
either case, ceases to be an Eligible Employee, such individual shall cease to
be an active Participant as of the day on which such transfer or change in
status occurs, but such individual shall not be deemed to have incurred a
termination from employment, and such individual shall not be entitled to
receive a distribution from the Plan until his actual termination from
employment.
2.6 Reinstatement of Former Employees Who had Previously Participated in a
----------------------------------------------------------------------
Prior Simplex Pension Plan.
- -------------------------- If a former Employee who had participated in a
pension plan maintained by Employer prior to January 1, 1981 should be
reemployed by the Employer as an Eligible Employee after January 1, 1981, such
Employee shall be eligible to participate in the Plan on the first day of the
month following the date of reemployment.
15
<PAGE>
ARTICLE III
-----------
CONTRIBUTIONS
-------------
3.1 Funding. The Employer or an Affiliated Company has entered into a trust
-------
agreement with a Trustee, creating a Trust for the purpose of holding Plan
assets and providing benefits under the Plan. All contributions made by
Participants or the Employer under the Plan shall be invested in the Investment
Funds and such other investment vehicles specifically provided in the trust
agreement and shall be held, managed and disposed of by the Trustee in
accordance with the provisions of the trust agreement for purposes contemplated
by the Plan.
3.2 Basic Contributions. Each Participant shall make basic contributions to
-------------------
the Plan which shall entitle such Participant to be credited with Employer
Matching Contributions. Basic contributions may be made in the form of Basic
Tax-Deferred Contributions or Basic Participant Contributions. Subject to the
limitations set forth in Article IV, for each Plan Year, the total amount of
Basic Tax-Deferred Contributions or Basic Participant Contributions which shall
be made by or on behalf of each Participant shall be equal to one percent (1%)
of such Participant's Compensation.
(a) Basic Tax-Deferred Contributions: A Participant may elect to have
--------------------------------
the Employer make Basic Tax-Deferred Contributions to the Plan on such
Participant's behalf by agreeing to adjust such Participant's compensation by an
amount equal to the amount of such Basic Tax-Deferred Contributions. Basic
Tax-Deferred Contributions shall be credited to the Participant's Tax-Deferred
Account.
16
<PAGE>
(b) Basic Participant Contributions: A Participant may elect to make
-------------------------------
Basic Participant Contributions to the Plan by authorizing the Employer to make
regular payroll deductions equal to the amount of such Basic Participant
Contributions. Basic Participant Contributions shall be credited to the
Participant's Participant Account.
3.3 Supplemental Contributions. After a Participant has completed ten (10)
--------------------------
Years of Service, such Participant may elect on any subsequent Entry Date to
make supplemental contributions to the Plan which shall entitle such Participant
to be credited with additional Employer Matching Contributions. Subject to the
limitations set forth in Article IV, for each Plan Year, the maximum amount of
Supplemental Tax-Deferred Contributions and Supplemental Participant
Contributions which may be made by or on behalf of a Participant shall be equal
to the whole number percentage of the Participant's Compensation which has been
elected by the Participant, but such percentage shall not exceed the maximum
percentage applicable to the Participant. The maximum percentage applicable to a
Participant shall be determined in accordance with the following schedule, based
on the number of Years of Service the Participant has completed.
Maximum Supplemental
Years of Service Tax-Deferred Contributions
---------------- --------------------------
10-19 1%
20-24 2%
25-29 3%
30 or more 4%
(a) Supplemental Tax-Deferred Contributions. A Participant eligible
---------------------------------------
for supplemental contributions under this Section 3.3 may elect to have the
Employer make Supplemental Tax-Deferred Contributions to the Plan on his behalf
by agreeing to a further
17
<PAGE>
downward adjustment in his Compensation equal to the amount of such Supplemental
Tax-Deferred Contributions. Supplemental Tax-Deferred Contributions shall be
credited to the Participant's Tax-Deferred Account.
(b) Supplemental Participant Contributions. A Participant eligible for
--------------------------------------
supplemental contributions under this Section 3.3 may elect to make Supplemental
Participant Contributions to the Plan by authorizing the Employer to make
regular payroll deductions equal to the amount of such Supplemental Participant
Contributions. Supplemental Participant Contributions shall be credited to the
Participant's Participant Account.
3.4 Employer Matching Contributions. For each Plan Year, Employer Matching
-------------------------------
Contributions shall be made on behalf of each Participant in an amount equal to
the sum of (a) two (2) times the amount of Basic Tax-Deferred Contributions
and/or Basic Participant Contributions made by or on behalf of such Participant
for such Plan Year; and (b) the amount of Supplemental Tax-Deferred
Contributions and/or Supplemental Participant Contributions made on behalf of
such Participant for such Plan Year. Employer Matching Contributions shall be
credited to the Participant's Employer Account.
3.5 Forfeitures. Amounts forfeited under Section 6.3 by Participants upon
-----------
termination of their employment with the Employer shall be reapplied in such a
way as to reduce future Employer Matching Contributions under the Plan.
3.6 Voluntary Tax-Deferred Contributions. Subject to the limitations of
------------------------------------
Section 4.4, a Participant may elect to make Voluntary Tax-Deferred
Contributions to the Plan in addition to his Basic Tax-Deferred Contributions
and any Supplemental Tax-Deferred Contributions by executing an application
authorizing the Employer to make a further
18
<PAGE>
adjustment to such Participant's salary equal to the amount of such Voluntary
Tax-Deferred Contributions. Voluntary Tax-Deferred Contributions shall be
credited to the Participant's Voluntary Tax-Deferred Account.
The Participant may elect to change the amount of his Voluntary
Tax-Deferred Contributions as of any Entry Date, subject to the limitation
described in the second paragraph of this Section 3.6. The Participant's
election to change the amount of his Voluntary Tax-Deferred Contributions
must be made in writing to the Plan Administrator at least 30 days prior to
the Entry Date on which the Participant wishes the change to be effective.
The Participant may elect to suspend all of such Participant's Voluntary
Tax-Deferred Contributions by means of written notice to the Plan Administrator
at least 30 days prior to the first day of the month in which the Participant
wishes the suspension to be effective. The Participant may elect to resume
Voluntary Tax-Deferred Contributions as of any Entry Date which succeeds the
date of suspension by at least three (3) months. Such election to resume
Voluntary Tax-Deferred Contributions must be made in writing to the Plan
Administrator at least 30 days prior to the date on which the resumption is to
be made effective.
3.7 Voluntary Participant Contributions. If a Participant is making Basic
-----------------------------------
Contributions pursuant to Section 3.2, subject to the limitations of Section
4.4, such Participant may elect to make after-tax Voluntary Participant
Contributions to the Plan by executing an application authorizing the Employer
to make regular payroll deductions of said Voluntary Participant Contributions.
Voluntary Participant Contributions shall be made by
19
<PAGE>
means of payroll deductions and the amounts so deducted shall be credited to the
Participant's Voluntary Account.
The Participant may elect to change the amount of his of Voluntary
Participant Contributions as of any Entry Date, subject to the limitation
permitted by the first paragraph of this Section 3.7. The Participant's election
to change the amount of his Voluntary Participant Contributions must be made in
writing to the Plan Administrator at least 30 days prior to the Entry Date on
which the Participant wishes the change to be made effective.
The Participant may elect to suspend all of such Participant's Voluntary
Participant Contributions by means of written notice to the Plan Administrator
at least 30 days prior to the first day of the month in which the Participant
wishes the suspension to be made effective. The Participant may elect to resume
Voluntary Participant Contributions as of any Entry Date which succeeds the date
of suspension by at least three (3) months. Such election to resume Voluntary
Participant Contributions must be made in writing to the Plan Administrator at
least 30 days prior to the date on which the resumption is to be made effective.
3.8 Duration of Contributions. In no event will any contribution be made
-------------------------
to this Plan by or on behalf of any Participant once such Participant is deemed
permanently and totally disabled.
However, an employee who is receiving Accident and Sickness benefits or
Workmen's Compensation, under the current benefit program, may continue to make
any of the aforementioned contributions to this Plan.
20
<PAGE>
3.9 Rollover Contributions. With the approval of the Plan Administrator,
----------------------
each Participant may roll over any Eligible Rollover Distribution (as defined in
Section 15.02(a)) he may have received from another retirement plan and trust
qualified as an exempt employee benefit plan and trust under Sections 401(a) and
501(a) of the Code. Such Participant may also roll over distributions from an
individual retirement account or individual retirement annuity which consists of
prior lump sum distributions or Eligible Rollover Distributions from a qualified
employee benefit plan and trust, provided that such funds are transferred to the
Plan within 60 days after the Participant receives them. Notwithstanding the
foregoing, no rollover amounts may be accepted to the extent prohibited by
Section 402 or 408 of the Code. Contributions under this Section 3.9 shall be in
cash only, and shall be fully vested and nonforfeitable at all times. Rollover
Contributions shall be credited to a separate Rollover Account for such
Participant. Rollover Contributions shall not be deemed to be Participant
contributions for purpose of the limitations set forth in Sections 4.1, 4.2 and
4.4.
3.10 Determination of Contributions. The amount of Employer Matching
------------------------------
Contributions, Tax-Deferred Contributions and Qualified Nonelective
Contributions shall be subject to final determination by the Plan Administrator.
The amount of such contributions, as determined by the Plan Administrator, shall
be conclusive and binding on all persons.
3.11 Payment of Contributions. The Employer Matching Contributions for
------------------------
each Plan Year shall be made at such time or times as the Employer determines
but not later than the time required by law in order for the Employer to
obtain a deduction of the amount of such payment for Federal income tax
purposes as determined under the applicable provisions
21
<PAGE>
of the Code. All other contributions made with respect to a pay period shall be
paid into the Plan by the Employer no later than 30 days after the last day of
such pay period.
3.12 Changes in Level of Participation. A Participant may elect to change
---------------------------------
the amount of his salary adjustment and/or payroll deduction and the
corresponding Supplemental Tax-Deferred Contributions and/or Supplemental
Participant Contributions by or on his behalf to any other amount permissible
for such Participant under Section 3.3 as of any Entry Date. The Participant's
election to change his amount of salary adjustment and/or payroll deduction must
be made in writing to the Plan Administrator at least 30 days prior to the date
on which the change is to be made effective. A Participant may elect to suspend
salary adjustment and/or payroll deduction and the corresponding Basic and
Supplemental Tax-Deferred Contributions and/or Basic and Supplemental
Participant Contributions made by or on his behalf as of the first day of any
month. A Participant's election to suspend such contributions must be made in
writing to the Plan Administrator at least 30 days prior to the first day of any
month in which the suspension is to be made effective. A Participant who
suspends contributions pursuant to the foregoing proviso may resume
contributions as of any Entry Date which succeeds the date of suspension by at
least three (3) months, by means of written notice to the Plan Administrator at
least 30 days prior to the date on which the resumption is to be effective.
3.13 Profits Not Required. The Employer shall, notwithstanding any other
--------------------
provisions of the Plan, make all contributions to the Plan without regard to
current or accumulated earnings or profits. Notwithstanding the foregoing, the
Plan shall be designated
22
<PAGE>
to qualify as a profit-sharing plan for purposes of Sections 401(a), 402, 412
and 417 of the Code.
3.14 Election of Investments.
-----------------------
(a) Each Participant, including a former Participant whose account
balances are still maintained in the Trust, shall elect the manner of investment
of all amounts standing to the credit of his accounts in the Trust among the
Investment Funds established under the Trust. By such election, the Participant
shall direct the portion of the aggregate amount then credited, and/or
thereafter to be credited, to his accounts which is to be invested by the
Trustee in each of the Investment Funds. The Plan Administrator shall maintain
records of account at all times adequately reflecting each Participant's
interest in each of the Investment Funds.
(b) A Participant may revoke his election as to any amounts then
standing in, and/or thereafter to be credited to, his accounts at such time or
times and in such manner as the Plan Administrator determines on a uniform basis
for all Participants, and may make a new investment election in accordance with
this Section 3.14. Effective October 1, 1993, such investment election changes
may be made on a daily basis. In the event that such a new election causes a
transfer of assets from one Investment Fund to another, the transfer shall be
made by the Trustee as soon as reasonably possible.
(c) To make an investment election, each Participant shall give notice
to the Plan Administrator in such form and at such time as the Plan
Administrator may reasonably require. To be effective, such an investment
election must be in accordance with any and all rules and regulations
established by the Plan Administrator for this purpose.
23
<PAGE>
(d) Any investment election made hereunder shall continue to be
effective until properly revoked by the Participant.
(e) The Employer, the Plan Administrator and the Trustee shall have no
responsibility for the investment elections of the Participants and shall incur
no liability on account of investing the assets of the Trust in accordance with
such directions.
24
<PAGE>
ARTICLE IV
----------
LIMITATIONS ON CONTRIBUTIONS AND ALLOCATIONS
--------------------------------------------
4.1 Limitation on Tax-Deferred Contributions.
----------------------------------------
(a) The aggregate Tax-Deferred Contributions made by the Employer for
each fiscal year shall not exceed that amount which, when added to the Employer
Matching Contributions made by the Employer for that fiscal year, equals the
maximum amount allowable as a deduction by the Employer under Section 404 of the
Code for such fiscal year.
(b) The aggregate Tax-Deferred Contributions made by the Employer for
any Participant under this Plan and any other plan maintained by the Employer or
an Affiliated Company for any calendar year shall not exceed $8,994, subject to
cost-of-living adjustments made by the Secretary of Treasury or his delegate
pursuant to Section 402(g)(5) of the Code.
(c) At any time during the Plan Year, the Employer may suspend or
reduce the amount of Tax-Deferred Contributions with respect to any Highly
Compensated Employee if the Plan Administrator determines that such suspension
or reduction is necessary to cause the test in either (i) or, to the extent not
prohibited by regulations promulgated by the Secretary of Treasury, (ii) below
to be met with respect to Tax-Deferred Contributions for such Plan Year:
(i) the Actual Deferral Percentage for the Highly Compensated
Employees eligible for Tax-Deferred Contributions is not more than the
Actual
25
<PAGE>
Deferral Percentage for all other Employees eligible for Tax-Deferred
Contributions multiplied by 1.25; or
(ii) the excess of the Actual Deferral Percentage for the Highly
Compensated Employees eligible for Tax-Deferred Contributions over the
Actual Deferral Percentage for all other Employees eligible for
Tax-Deferred Contributions is not more than two (2) percentage points, and
the Actual Deferral Percentage for the Highly Compensated Employees is not
more than the Actual Deferral Percentage for all other Employees eligible
for Tax-Deferred Contributions multiplied by two (2). All determinations
required under this subsection (c) shall be made by the Plan Administrator
and its determinations shall be final and binding on all persons.
(d) For the purposes of subsection (c) above, the "Actual Deferral
Percentage" for a specified group of Employees for a Plan Year shall be the
average of the ratios (calculated separately for each Employee in such group and
expressed as a percentage) of (i) the amount of the Tax-Deferred Contributions
actually paid over to the Plan on behalf of the Employee for such Plan Year to
(ii) the Employee's "total compensation" for such Plan Year. If the Employer
elects to make Qualified Nonelective Contributions to the Plan, the
Plan Administrator may include any such contributions allocated to a
Participant's Tax-Deferred Account in determining the Participant's Actual
Deferral Percentage. For purposes of this subsection (d) and Section 4.2, "total
compensation" means the amount of compensation paid by the Employer to the
Employee during the Plan Year (or portion thereof in which the Participant is
eligible to participate in the Plan) which is subject to withholding and
required to be reported on the Employee's Form W-2 plus the amount which would
have
26
<PAGE>
been paid to the Employee as cash compensation but for an election by such
Employee under Section 125 or 401(k) of the Code, but excluding the amount paid
prior to the date such Employee becomes eligible to participate in the Plan. The
"total compensation" taken into account with respect to a Participant for any
Plan Year shall not exceed $200,000 ($150,000 beginning January 1, 1994),
subject to cost-of-living adjustments made by the Secretary of Treasury or his
delegate.
(e) In determining the deferral percentage of a Highly Compensated
Employee who has a Family Member who is an Employee, the Tax-Deferred
Contributions made on behalf of such Highly Compensated Employee and the "total
compensation" of such Highly Compensated Employee shall include the Tax-Deferred
Contributions and "total compensation" of the Family Member, and the Family
Member shall not be considered a separate Employee for purposes of determining
the Actual Deferral Percentage for any group under the Plan to the extent
required by Section 414(q) of the Code and any regulations promulgated
thereunder;
(f) If the Plan satisfies the requirements of Section 401(k),
401(a)(4) or 410(b) of the Code (other than the average benefit percentage test)
only if aggregated with one or more other qualified plans, or if one or more
other plans satisfy such requirements only if aggregated with this Plan, then
this Section 4.1 shall be applied by determining the Actual Deferral Percentage
of Employees as if all such plans were a single plan. Notwithstanding the above
requirements, plans may be aggregated to satisfy Section 401(k) of the Code only
if they have the same Plan Year.
27
<PAGE>
(g) In the event Tax-Deferred Contributions actually made on behalf of
Highly Compensated Employees exceed the limitations set forth in subsection (c)
above, the Plan Administrator shall direct the Trustee to reduce such
contributions of such Highly Compensated Employees in order of their deferral
percentages, beginning with the highest of such percentages, to the extent
necessary to cause the Plan to meet such limitations. Such reduction shall be
made first with respect to Voluntary Tax-Deferred Contributions, then (if and to
the extent necessary) with respect to Supplemental Tax-Deferred Contributions,
and lastly (if and to the extent necessary) with respect to Basic Tax-Deferred
Contributions. Any reduction in Supplemental or Basic Tax-Deferred Contributions
shall also be accompanied by a reduction of the associated Employer Matching
Contributions, which shall be forfeited and applied to reduce future Employer
Matching Contributions. Any Tax-Deferred Contributions so reduced, as adjusted
for income or loss allocable thereto in accordance with Section 4.1(h) below,
shall be distributed to the Highly Compensated Employees on whose behalf such
contributions were made as soon as practicable, but no later than December 31 of
the following Plan Year.
(h) The income or loss allocable to a Participant's Tax-Deferred
Contributions which exceed the limitation of subsection (c) above shall be
determined by multiplying the investment gain or loss of such Participant's
Tax-Deferred Account and Voluntary Tax-Deferred Account for such Plan Year from
which such excess Tax-Deferred Contributions are withdrawn by a fraction. The
numerator of this fraction is the amount of the Participant's excess
Tax-Deferred Contributions to be distributed and the denominator is the amount
credited to the Participant's Tax-Deferred Account and Voluntary Tax-Deferred
28
<PAGE>
Account as of the beginning of the Plan Year, increased by the Tax-Deferred
Contributions allocable to such accounts for such Plan Year.
(i) If, during any Plan Year, more than the maximum permissible amount
under Section 402(g) of the Code is allocated pursuant to one or more cash or
deferred arrangements to a Participant's accounts under this Plan and any other
plan described in Sections 401(k), 408(k), or 403(b) of the Code, the following
provisions shall apply:
(i) No later than March 1 of the next succeeding Plan Year, the
Participant may, but is not required to, allocate all or part of such
contributions in excess of the maximum permissible amount ("excess
deferrals") to this Plan. To be effective, such allocation must be in
writing, state that excess deferrals have been made on behalf of such
Participant for the preceding Plan Year, and be submitted to the Plan
Administrator.
(ii) To the extent a Participant timely allocates excess
deferrals to this Plan pursuant to (i) above, the Plan Administrator shall
direct the Trustee to distribute such excess deferral, adjusted for income
or losses as determined in accordance with subsection (h) above, to the
Participant no later than the April 15 following such allocation.
4.2 Limitation on Participant and Employer Matching Contributions.
-------------------------------------------------------------
(a) For each Plan Year, the Participant Contributions and Employer
Matching Contributions made with respect to any Highly Compensated Employee
shall be suspended or reduced if the Plan Administrator determines that such
suspension or reduction is necessary to cause the test in either (i) or, to the
extent not prohibited by regulations
29
<PAGE>
promulgated by the Secretary of the Treasury, (ii) below to be met with respect
to such contributions for such Plan Year:
(i) the Actual Contribution Percentage for the Highly Compensated
Employees eligible to participate in the Plan is not more than the Actual
Contribution Percentage for all other Employees eligible to participate in
the Plan multiplied by 1.25; or
(ii) the excess of the Actual Contribution Percentage for the
Highly Compensated Employees eligible to participate in the Plan over the
Actual Contribution Percentage for all other Employees eligible to
participate in the Plan is not more than two (2) percentage points, and the
Actual Contribution Percentage for the Highly Compensated Employees
eligible to participate in the Plan is not more than the Actual
Contribution Percentage for all other Employees eligible to participate in
the Plan multiplied by two (2). All determinations required under this
subsection (a) shall be made by the Plan
Administrator and its determinations shall be final and binding on all persons.
(b) For purposes of subsection (a) above, the "Actual Contribution
Percentage" for a specified group of Employees for a Plan Year shall be the
average of the ratios (calculated separately for each Employee in such group and
expressed as a percentage) of (i) the sum of Participant Contributions and
Employer Matching Contributions actually paid over to the Plan on behalf of the
Employee for such Plan Year to (ii) the Employee's "total compensation" for the
Plan Year (as defined in Section 4.1(d) above). To the extent permitted by
applicable regulations, the Plan Administrator may include Tax-Deferred
30
<PAGE>
Contributions of a Participant who is not a Highly Compensated Employee in
determining his Actual Contribution Percentage, to the extent that such
contributions are not used in determining his Actual Deferral Percentage under
Section 4.1. If the Employer elects to make Qualified Nonelective Contributions
to the Plan, the Plan Administrator may include any such contributions allocated
to a Participant's Tax-Deferred Account in determining the Participant's Actual
Contribution Percentage.
(c) In determining the contribution percentage of a Highly Compensated
Employee who has a Family Member who is an Employee, the Participant
Contributions made by, the Employer Matching Contributions made on behalf of,
and the "total compensation" of such Highly Compensated Employee shall include
the Participant Contributions, Employer Matching Contributions, and "total
compensation" of his Family Member, and the Family Member shall not be
considered a separate Employee for purposes of determining the Actual
Contribution Percentage for any group under the Plan to the extent required by
Section 414(q) of the Code and any regulations promulgated thereunder.
(d) If the Plan satisfies the requirements of Section 401(m),
401(a)(4) or 410(b) of the Code (other than the average benefit percentage test)
only if aggregated with one or more other qualified plans, or if one or more
other plans satisfy such requirements only if aggregated with this Plan, then
this Section 4.2 shall be applied by determining the Actual Contribution
Percentage of Employees as if all such plans were a single plan. Notwithstanding
the above requirements, plans may be aggregated to satisfy Section 401(m) of the
Code only if they have the same Plan Year.
31
<PAGE>
The Plan Administrator may include the Basic, Supplemental or Voluntary
Tax-Deferred Contributions of a Participant who is not a Highly Compensated
Employee in determining his Actual Contribution Percentage, to the extent that
such contributions are not used in determining his Actual Deferral Percentage
under Section 4.1.
(e) If, for any Plan Year, the Plan Administrator determines that the
Actual Contribution Percentage for the Highly Compensated Employees exceed the
limitation set forth in subsection (a) above, the Plan Administrator shall
direct the Trustee to distribute to the Highly Compensated Employees, in order
of their contribution percentages beginning with the highest of such
percentages, the amount necessary to cause the Plan to meet such limitation.
Such reduction shall be made first with respect to Voluntary Participant
Contributions, then with respect to Supplemental Participant Contributions and
Basic Participant Contributions and lastly with respect to Employer Matching
Contributions. Any reductions of Basic and Supplemental Participant
Contributions shall also be accompanied by a reduction of the associated
Employer Matching Contributions, if any, and such contributions shall be
forfeited and shall be applied to reduce future Employer Matching Contributions.
Such Participant Contributions and Employer Matching Contributions shall be
adjusted for income or loss allocable thereto in accordance with Section 4.2(f)
below, and shall be distributed to the Highly Compensated Employee on whose
behalf such contributions were made as soon as practicable but no later than
December 31 of the following Plan Year. Notwithstanding the foregoing, if a
Highly Compensated Employee is not vested in the amount of Employer Matching
Contributions to be distributed to him pursuant to the foregoing sentence, such
amount shall not be distributed to him and shall be forfeited as of
32
<PAGE>
the last day of the Plan Year and shall be used to reduce future Employer
Matching Contributions.
(f) The income or loss allocable to a Participant's Participant
Contributions and Employer Matching Contributions which exceed the limitation
set forth in subsection (a) above shall be determined by multiplying the
investment gain or loss of such Participant's Participant and Employer Accounts
by a fraction. The numerator of this fraction is the amount of the Participant's
excess Participant and Employer Matching Contributions to be distributed and the
denominator is the amount credited to the Participant's Participant and Employer
Accounts as of the beginning of the Plan Year, increased by the Participant and
Employer Matching Contributions allocated to such accounts for such Plan Year.
4.3 Qualified Nonelective Contributions and Multiple Use Test.
---------------------------------------------------------
(a) The Employer may elect to make Qualified Nonelective
Contributions, which shall be considered, to the extent necessary, in
conducting the nondiscrimination tests of Sections 4.1 and 4.2. Such
contributions (i) may be made as a uniform percentage of Compensation or
as a uniform dollar amount contributed on a per capita basis, (ii) may be made
for all or certain of those Participants who are not Highly Compensated
Employees, and (iii) may be made at any time prior to the end of the twelve
(12) month period immediately following the Plan Year to which such
contributions relate. Qualified Nonelective Contributions under this Section
shall be allocated to the appropriate Participants' Tax-Deferred Accounts
which shall be fully vested and nonforfeitable at all times.
33
<PAGE>
(b) The Voluntary Contributions, Basic Contributions, Supplemental
Contributions and Employer Matching Contributions of a Highly Compensated
Employee shall be further reduced and returned to such Employee to the extent
necessary to comply with rules and regulations of the Internal Revenue Service
promulgated to prevent the multiple use of the alternative limitation set forth
in Section 4.1(c)(ii) and Section 4.2(b).
(c) To the extent permitted by Treasury regulations, the Plan
Administrator may restructure the Plan into component plans for purposes of
conducting the nondiscrimination tests of Sections 4.1 and 4.2.
4.4 Limitations on Annual Additions.
-------------------------------
(a) All annual additions made under the provisions of Article III or
this Article IV with respect to any Participant in any Limitation Year shall be
limited to the lesser of:
(i) $30,000 (or, if greater, one-fourth of the defined benefit
dollar limitation as set forth in Section 415(b)(1) of the Code, as
adjusted beginning in 1988 pursuant to Section 415(d) of the Code), or
(ii) 25% of the Participant's compensation (determined in
accordance with Treasury Regulations Section 1.415-2(d)(11)(ii)) for such
Limitation Year.
For purposes of this Section 4.4, the term "annual addition" shall
mean the sum of:
34
<PAGE>
(A) Tax-Deferred Contributions, excluding excess
contributions and excess deferrals returned to the Participant
pursuant to Sections 4.1(g) and (i),
(B) Employer Matching Contributions plus forfeitures,
including excess aggregate contributions forfeited or returned to the
Participant pursuant to Section 4.2,
(C) Participant Contributions, including excess aggregate
contributions returned to the Participant pursuant to Section 4.2,
plus
(D) Qualified Nonelective Contributions.
In any case where a Participant is, or has been, included in a
tax-qualified defined benefit plan of the Employer or any Affiliated Company,
the sum of such Participant's defined benefit plan fraction and defined
contribution plan fraction shall not exceed one (1) for any Limitation Year, and
the annual additions to such Participant's accounts under this Plan shall be
further limited to the extent necessary to comply with such combined plan limit.
The defined benefit plan fraction of a Participant for any Limitation Year
is a fraction, the numerator of which is the projected annual normal retirement
benefit of such Participant under such defined benefit plan determined as of the
close of such Limitation Year and the denominator of which is the lesser of:
(i) the product of 1.25 multiplied by the dollar limitation in
effect for such Limitation Year under Section 415(b)(1)(A) of the Code; or
35
<PAGE>
(ii) the product of 1.4 multiplied by such Participant's highest
three (3) years' average compensation (as defined by Section 415 of the
Code). The defined contribution plan fraction of a Participant for any
Limitation Year is a
fraction, the numerator of which is the aggregate amount as of the close of such
Limitation Year of the annual additions credited to such Participant's accounts
under the Plan and the denominator of which is the sum of the lesser of the
following amounts determined for such Limitation Year and each prior Limitation
Year of Service with the Employer or any Affiliated Company:
(i) the product of 1.25 multiplied by the dollar limitation in
effect for the Limitation Year under Section 415(c)(1)(A) of the Code; or
(ii) the product of 1.4 multiplied by 25% of such Participant's
total compensation (determined in accordance with Treasury Regulations
Section 1.415-2(d)(11)(ii)) for the Limitation Year.
If the foregoing limit is applicable to a Participant for a Limitation Year, the
Plan Administrator shall reduce the annual additions to such Participant's
accounts in the following order of priority:
(1) against the Participant Contributions to the Plan for
the Limitation Year, the amount of such reductions, as adjusted for
earnings, to be returned to him;
(2) against the Tax-Deferred Contributions made on behalf of
such Participant, the amount of such reduction to be held unallocated
and
36
<PAGE>
applied to reduce future Tax-Deferred Contributions under the Plan
in the succeeding Limitation Year;
(3) against the Employer Matching Contributions (including
forfeitures) made on behalf of the Participant, the amount of such
reduction to be held unallocated and applied to reduce Employer
Matching Contributions to the Plan in the succeeding Limitation Year;
and
(4) the Plan Administrator may elect from time to time to
return Tax-Deferred Contributions to the Participant. For purposes of
this Section 4.4, the Limitation Year shall be the Plan Year.
37
<PAGE>
ARTICLE V
---------
WITHDRAWALS PRIOR TO TERMINATION OF EMPLOYMENT
----------------------------------------------
5.1 Withdrawals from Voluntary Accounts. Subject to the requirements of
-----------------------------------
Section 5.5, a Participant may, at any time prior to the distribution of such
Participant's Voluntary Account, elect to withdraw a cash amount equal to all or
a specified portion of the value of such account. The Participant's election to
withdraw must be made in writing to the Plan Administrator and such request must
specify the amount to be withdrawn.
5.2 Withdrawals from Voluntary Tax-Deferred Accounts. Subject to the
------------------------------------------------
requirements of Section 5.5, a Participant may, at any time prior to the
distribution of his Voluntary Tax-Deferred Account, request to withdraw a cash
amount from his Voluntary Tax-Deferred Account. If the Participant is under age
59-1/2, the maximum amount which a Participant may withdraw from his Voluntary
Tax-Deferred Account shall not exceed the balance in his Voluntary Tax-Deferred
Account as of December 31, 1988 plus all Voluntary Tax-Deferred Contributions
allocated to said account after such date. The Participant's request to withdraw
must be made in writing to the Plan Administrator and such request shall specify
the amount requested, the reason for the withdrawal and such additional
information as the Plan Administrator shall require.
The withdrawal of any amount from a Participant's Voluntary Tax-Deferred
Account shall be subject to the consent of the Plan Administrator. The basis for
the Plan Administrator consenting or refusing to consent to the Participant's
request shall be its determination that the requested withdrawal is necessary to
allow such Participant to meet an immediate and heavy financial need which such
Participant is not able to meet from any
38
<PAGE>
other reasonably available resources. A distribution shall be deemed to be made
on account of an immediate and heavy financial need of the Participant if the
distribution is made on account of:
(a) Medical expenses described in Section 213(a) of the Code incurred
by the Participant, his spouse or dependents, or expenses necessary for these
persons to obtain medical care;
(b) Purchase (excluding mortgage payments) of a principal residence
of the Participant;
(c) Payment of tuition and related educational fees for the next
twelve (12) months of post-secondary education for the Participant, his spouse
or his dependents;
(d) The need to prevent the eviction of the Participant from his
principal residence or foreclosure on the mortgage of the Participant's
principal residence; or
(e) Any other circumstance deemed by the Internal Revenue Service to
be an immediate and heavy financial need for purposes of Section 401(k) of the
Code.
If a Participant has an immediate and heavy financial need as described
above, he may receive a hardship withdrawal not in excess of the amount of the
immediate and heavy financial need (including amounts necessary to pay any
federal, state or local income taxes or penalties reasonably anticipated to
result from the distribution) provided the Plan Administrator determines that
such Participant is not able to meet such need from any other reasonably
available sources. In determining that such Participant is not able to meet such
financial hardship from any other sources, the Plan Administrator may reasonably
rely upon
39
<PAGE>
the written certification of the Participant given in accordance with
the regulations promulgated under Section 401(k) of the Code.
Notwithstanding the foregoing, a Participant who has attained age 59-1/2
may withdraw a cash amount equal to all or a specified portion of his Voluntary
Tax-Deferred Account, including earnings, without the need to seek the consent
of the Plan Administrator.
5.3 Resumption of Voluntary Contributions. Any Participant who makes a
-------------------------------------
withdrawal in accordance with this Article V shall be prohibited from making
Voluntary Tax-Deferred Contributions and Voluntary Participant Contributions for
a period of twelve (12) months. After the expiration of such period, the
Participant may elect to resume Voluntary Tax-Deferred Contributions and/or
Voluntary Participant Contributions in accordance with the rules set forth in
Section 3.6. Amounts withdrawn by a Participant may not be returned to this
Plan.
5.4 Procedure for Withdrawal. Each withdrawal pursuant to Section 5.1
------------------------
and/or Section 5.2 shall be made as soon as practicable following the date the
Trustee receives from the Plan Administrator such written notice of withdrawal
as shall be required by the Trustee. The amount to be so withdrawn shall be that
specified in such written notice and shall be limited by the provisions of
Sections 5.1 and 5.2.
In no event will a Participant be allowed to withdraw any portion of his
Participant Account, Rollover Account, Tax-Deferred Account or Employer Account
prior to the date of the termination of his employment.
5.5 Spousal Consent for Withdrawals. Notwithstanding the foregoing
-------------------------------
provisions of this Article, in the case of a married Participant whose aggregate
vested interest in his
40
<PAGE>
accounts under the Plan exceeds $3,500, no withdrawal
pursuant to Section 5.1 or 5.2 shall be permitted from any of such Participant's
accounts unless the spouse of such Participant has consented to such withdrawal
in a writing which satisfies the requirements of Section 7.2(b), during the
90-day period preceding the date of such withdrawal.
41
<PAGE>
ARTICLE VI
----------
VESTING, TERMINATION OF EMPLOYMENT AND FORFEITURES
--------------------------------------------------
6.1 Vesting.
-------
(a) A Participant shall at all times be 100% vested in each of his
accounts other than his Employer Account.
(b) A Participant's interest in his Employer Account shall become 100%
vested at the earliest of the following dates:
(i) The date the Participant completes five (5) Years of Service.
(ii) The date of the Participant's death.
(iii) The date the Participant incurs a Disability.
(iv) The Participant's 55th birthday.
(v) The date of termination of this Plan or the date of complete
cessation of Employer Matching Contributions.
6.2 Termination of Employment.
-------------------------
Upon the termination of a Participant's
employment with the Employer, such Participant may elect to receive the value of
his Voluntary Account and/or Voluntary Tax-Deferred Account in a single sum
payment or such Participant may elect to have such accounts paid to him at the
same time and in the same manner as his other accounts, as set forth in Article
VII, subject to the further provisions of this Section. The value of such
accounts shall be determined as of a Valuation Date selected by the Plan
Administrator which shall apply on a uniform basis to all Participants in the
same circumstances.
42
<PAGE>
If a Participant's employment is terminated in accordance with the
immediately preceding paragraph, such Participant may make a written request to
the Plan Administrator for an immediate single sum cash payment equal to the
value of his Participant Account, Rollover Account, Tax-Deferred Account, and,
if such Participant is vested pursuant to Section 6.1(b), his Employer Account.
The value of such accounts shall be determined as of a Valuation Date selected
by the Plan Administrator which shall apply on a uniform basis to all
Participants in the same circumstances. Notwithstanding the foregoing, if the
value of a Participant's aggregate vested interest in his accounts under the
Plan is $3,500 or less upon his termination of employment (or at the time of any
prior distribution to him under the Plan), the Plan Administrator shall make an
immediate single sum cash payment to such Participant in an amount equal to such
value whether or not the Participant consents to such distribution.
Payment of such accounts shall be made, or commence to be made, as soon as
practicable after the Trustee receives from the Employer or Plan Administrator
such written notice of early distribution as shall be required by the Trustee.
Notwithstanding the foregoing, in the case of a married Participant whose vested
interest under the Plan exceeds $3,500, no lump sum payment may be made pursuant
to this Section 6.2 unless the spouse of such Participant has consented to such
payment in a writing which complies with the requirements of Section 7.2.
6.3 Forfeitures.
-----------
(a) If a Participant's employment with the Employer is terminated
prior to any of the dates referenced in Section 6.1(b), he shall forfeit the
value of his Employer
43
<PAGE>
Account as of the Forfeiture Date. The value of such
Accounts shall be determined as of such Forfeiture Date and, except as provided
in Article XII hereof, any amounts so forfeited by Participants shall be used to
offset future Employer Matching Contributions under this Plan.
(i) If such a Participant subsequently resumes employment with
the Employer before incurring five (5) consecutive Breaks in Service, the
amount previously forfeited from the Participant's Employer Account shall
be restored to such Accounts as soon as administratively practical after
the Participant is reemployed. The Employer shall make an additional
contribution with respect to the Plan Year of such reemployment to the
extent necessary to effect such restoration.
(ii) If a Participant's employment with the Employer is
terminated prior to any of the dates referenced in Section 6.1(b) and such
Participant subsequently resumes employment with the Employer after
incurring five (5) consecutive Breaks in Service, any amounts previously
forfeited shall not be restored.
(b) If a vested Participant's employment with the Employer is
terminated in accordance with Section 6.2, and he subsequently resumes active
employment with the Employer prior to receiving a distribution of his Employer
Account, the Participant shall continue to be fully vested in such account on
his date of reemployment.
44
<PAGE>
ARTICLE VII
-----------
DISTRIBUTION AT RETIREMENT, DEATH, OR DISABILITY
------------------------------------------------
7.1 Distributions at Retirement. A Participant shall, as of his retirement
---------------------------
on or after his Early or Normal Retirement Date (whichever is applicable), be
entitled to a distribution of his accounts. The final value shall be determined
as of the Valuation Date coincident with or immediately following the date of
retirement or the receipt by the Plan Administrator of the election to receive
benefits, if later. The value of the accounts may also be determined as of a
Valuation Date selected by the Plan Administrator which shall apply on a uniform
basis for all Participants in the same circumstances.
Subject to the requirements of Section 7.2, a Participant may elect to
receive payment of such Participant's accounts in any of the following methods
or in a combination of any of the methods listed below; provided, however, that
the method of distribution selected must ensure that payment will not extend
beyond the joint lives or joint life expectancies of the Participant and his
designated Beneficiary, determined in accordance with the regulations
promulgated under Section 401(a)(9) of the Code.
(a) A single sum cash distribution equal to the total amount
contained in his accounts.
(b) An immediate annuity in one of the following forms:
(i) Contingent Annuitant Annuity: This form provides the
----------------------------
retired Participant with a monthly retirement benefit during his lifetime
and continues 100%, 66-2/3%, or 50% (as elected by the Participant) of the
benefit to a Contingent Annuitant, if living, after the retired
Participant's death. If the Contingent Annuitant
45
<PAGE>
is the spouse of the retired Participant, the retirement benefit is payable
without restriction. If, however, the Contingent Annuitant is a person
other than the spouse of the retired Participant, the benefit payable to
the Contingent Annuitant shall be limited to the extent necessary to comply
with the requirements of the minimum distribution incidental benefit
rule as set forth in the regulations promulgated under Section 401(a)(9)
of the Code.
The monthly payments to the Contingent Annuitant shall commence on the
first day of the month following the month in which the retired Participant
dies, if the Contingent Annuitant is then living, and shall continue monthly
with the last payment due for the month in which the Contingent Annuitant's
death occurs.
If the Contingent Annuitant dies before the Participant commences to
receive retirement benefits, another Contingent Annuitant may be designed or the
retired Participant may elect another form of benefit payment. If the Contingent
Annuitant predeceases the retired Participant after payments have commenced,
such payments shall cease upon the retired Participant's death.
(ii) Year Certain and Life Annuity. This form provides the
-----------------------------
retired Participant with a monthly retirement benefit during such
Participant's lifetime with the guarantee that a certain specified number
(60 or 120) of monthly retirement benefit payments as elected by the
Participant will be paid to either the retired Participant or his
Beneficiary; provided, however, that the period certain shall be limited to
the extent necessary to comply with the requirements of the minimum
46
<PAGE>
distribution incidental benefit rule as set forth in regulations
promulgated under Section 401(a)(9) of the Code.
If this form is elected and the retired Participant dies prior to the
receipt of the guaranteed monthly payments, the balance of the guaranteed
monthly payments will be paid to the retired Participant's Beneficiary and
will continue until the total of the guaranteed number of monthly payments
have been made to the retired Participant or his Beneficiary. The first
such payment to the Beneficiary shall be due and payable as of the first
day of the month following the retired Participant's death.
In the event there is no Beneficiary living at the death of the retired
Participant, the balance of the guaranteed monthly payments which would
otherwise have become payable to the retired Participant's Beneficiary shall be
commuted to a single sum and shall be paid to the Participant's estate.
If the Beneficiary of a deceased retired Participant should die prior to
receiving the balance of the guaranteed number of payments, the balance of such
payments which would otherwise have become payable to the retired Participant's
Beneficiary shall be commuted to a single sum and shall be paid to the
Beneficiary's estate.
(iii) Full Cash Refund Annuity. This form provides the retired
------------------------
Participant with a monthly benefit during his lifetime, and further
provides that if the retired Participant should die prior to receiving
benefit payments in a sum equal to the single premium applied to purchase
his benefit, the excess, if any, of such single premium over the aggregate
amount of benefit payments previously paid to such Participant shall be
paid in a lump sum to his Beneficiary. In the event there is no
47
<PAGE>
Beneficiary living at the death of the retired Participant, such payment
shall be made to the Participant's estate.
Notwithstanding the foregoing, if the value of a Participant's aggregate
vested interest in such Participant's accounts under the Plan is not more
than $3,500 upon his Early or Normal Retirement Date, or the date such
Participant incurs a Disability (whichever is applicable), or at the time
of any prior distribution to him from the Plan, the Plan Administrator
shall make an immediate single cash payment to such Participant in an
amount equal to such value whether or not the Participant or such
Participant's spouse consents to such distribution.
7.2 Automatic Annuity Form.
----------------------
(a) Notwithstanding any provision hereof to the contrary, except as
provided in this Section 7.2, any distribution of benefits under this Plan to a
Participant shall be made in the Automatic Annuity Form. In the case of a
Participant who is married on such Participant's "annuity starting date," the
Automatic Annuity Form shall be a 50% Contingent Annuitant Option, with the 50%
continuation to be paid to such Participant's surviving spouse. In the case of a
Participant who is not married on such Participant's "annuity starting date,"
the Automatic Annuity Form shall be the Full Cash Refund Annuity. The Plan
Administrator shall provide to each Participant, within a reasonable period
prior to the "annuity starting date," a written explanation of the terms and
conditions of the Automatic Annuity Form, the Participant's and such
Participant's spouse's right to waive such form and the effect thereof, and the
Participant's right to revoke such waiver and the effect thereof.
48
<PAGE>
(b) The Automatic Annuity Form required by paragraph (a) of this
Section shall not apply if the value of the Participant's aggregate vested
interest in such Participant's accounts under the Plan is not more than $3,500,
or if the Participant has effectively designated in writing during the 90 day
period ending on such Participant's "annuity starting date" (and such
designation is not revoked during such period) an alternate payment option under
Section 7.1. Such designation shall be effective only if (i) the Participant's
spouse has consented to such designation of an alternate payment option in a
writing which acknowledges the effect of the designation and which is witnessed
by a Plan representative or notary public, or (ii) it is established to the
satisfaction of the Plan Administrator that such spousal consent is unobtainable
because there is no spouse, or because the spouse cannot be located, or because
the Participant has been abandoned by the spouse within the meaning of local law
and there is a court order to that effect, or because of other circumstances
prescribed by regulations under Section 417(a)(2) of the Code. Such a
designation may be revoked, with or without spousal consent, at any time during
the 90 day period ending on such Participant's "annuity starting date." Such a
designation may not be changed without spousal consent unless the initial
consent of the spouse expressly permits designations by the Participant without
any requirement of further consent by the spouse.
(c) For purposes of this Section 7.2 and Section 7.4, the term
"annuity starting date" means (i) the first day of the first period for which an
amount is payable as an annuity, or (ii) in the case of a benefit not payable in
the form of an annuity, the first day on which all events have occurred which
entitle the Participant to such benefit.
49
<PAGE>
7.3 Distributions Upon Incurring Disability. If a Participant should incur
---------------------------------------
a Disability prior to such Participant's Normal Retirement Date, such
Participant may elect by written notice to the Plan Administrator to receive a
distribution in accordance with Sections 7.1 and 7.2 at any time after the date
he incurs the Disability and prior to his Normal Retirement Date (provided he is
then living). If no such election is filed, distribution will be made in
accordance with Section 7.1 as of the disabled Participant's Normal Retirement
Date. Distribution of such disabled Participant's accounts shall be made as
provided in 7.2(a), unless the exceptions in 7.2(b) apply, in which case the
disabled Participant may choose any method of distribution set forth in Section
7.1.
7.4 Distributions at Death.
----------------------
(a) Except as otherwise provided in paragraph (b) of this Section, if
a Participant should die prior to such Participant's "annuity starting date,"
any amount credited to such Participant's accounts as of his date of death (or
the undistributed vested balance of his accounts in the case of a terminated or
retired Participant), shall be paid in a single sum payment to his Beneficiary
as soon as administratively practicable after the date the Participant's death
is reported to the Plan Administrator. If a Participant's death occurs after his
"annuity starting date" (as defined in Section 7.2(c)), any death benefit shall
be payable at least as rapidly as under the particular form of annuity which is
in effect for such Participant as of the date of his death.
(b) Notwithstanding any provision hereof to the contrary, unless an
effective waiver has been filed pursuant to this paragraph (b), if a married
Participant dies prior to his "annuity starting date" (as defined in Section
7.2(c)), distribution of at least 50%
50
<PAGE>
of the balance standing to the credit of his accounts as of the date of his
death shall be made by purchase of an annuity contract which provides for
payments to the Participant's spouse for life; provided, however, that if
the Participant's surviving spouse so elects, or if the amount otherwise
required to be distributed by purchase of such annuity does not exceed
$3,500, distribution shall be made by a single sum payment of the full
amount due to such surviving spouse hereunder in lieu of the purchase of
such annuity contract. The portion of a Participant's accounts which is not
required to be distributed by purchase of a surviving spouse annuity under
this paragraph (b) shall be distributed pursuant to paragraph (a) of this
Section.
The Plan Administrator shall provide to each Participant, within the
"applicable period" with respect to the Participant, a written explanation with
respect to the surviving spouse annuity. The term "applicable period" means the
latest of (i) the period beginning with the first day of the Plan Year in which
the Participant attains age 32 and ending with the close of the Plan Year
preceding the Plan Year in which the Participant attains age 35; (ii) a
reasonable period after the Employee becomes a Participant; or (iii) a
reasonable period after separation of service in case of a Participant who
separates prior to attaining age 35.
The surviving spouse annuity requirement of the paragraph (b) shall not be
applicable if the Participant, at any time after the beginning of the Plan Year
during which his 35th birthday occurs or his termination of employment,
whichever is earlier, has elected to waive such requirement and has designated a
Beneficiary other than his spouse, and such Participant's surviving spouse has
consented to such waiver and designation in a writing which acknowledges the
effect of the consent and which is witnessed by a Plan representative
51
<PAGE>
or notary public; provided, however, that such spousal consent shall not be
required if it is established to the satisfaction of the Plan Administrator that
such consent was unobtainable because there is no spouse, because the spouse
cannot be located, or because the Participant has been abandoned by the spouse
within the meaning of local law and there is a court order to that effect, or
because of other circumstances prescribed in regulations under Section 417(a)(2)
of the Code. The election by the Participant to waive the surviving spouse
annuity and to designate a Beneficiary other than his spouse may not be changed
without spousal consent unless the initial consent of the spouse expressly
permits designations by the Participant without any requirement of further
consent by the spouse. In the event that an effective election has been filed,
distribution of 100% of the balance standing to the credit of the Participant's
accounts shall be made pursuant to paragraph (a) of this Section.
Distribution of the surviving spouse annuity required under this paragraph
(b) must begin within a reasonable time after the Participant's death, if the
surviving spouse so directs. Otherwise, distribution of the surviving spouse
annuity shall commence as of such date as the surviving spouse elects in
writing, but in no event later than the date which would have been the
Participant's Normal Retirement Date had he survived.
(c) A Participant may, from time to time in such manner as the Plan
Administrator shall prescribe, change his designated Beneficiary or
Beneficiaries, but any such designation which has the effect of naming a person
other than the surviving spouse as sole Beneficiary is subject to the spousal
consent requirement of subsection (b) above.
(d) If a Participant has failed effectively to designate a Beneficiary
to receive the Participant's remaining account balances upon his death, or a
Beneficiary
52
<PAGE>
previously designated has predeceased the Participant and no
alternative designation has become effective, such account balances shall be
distributed to any one or more of the surviving members of the Participant's
relatives in the following order of preference: spouse, or in equal shares to
his children, grandchildren, or parents, or his estate.
7.5 Loans to Participants. Effective October 1, 1993, upon written
---------------------
application of an active Participant, the Committee may direct the Trustee to
lend to the Participant such amount or amounts as the Committee may determine
proper from the Participant's accounts in the Plan (other than his Employer
Account), provided that the aggregate amount of all outstanding loans from this
Plan and from any other qualified plan maintained by the Employer or an
Affiliated Company, including accrued interest thereon, shall not exceed the
lesser of (a) $50,000, reduced by any loan repayment made during the one (1)
year period ending on the day before the date such loan is made, (b) 50% of the
Participant's vested interest in his accounts (determined at the time the loan
is made), or (c) the Participant's total account balance less the Employer
Account balance.
Each loan to Participants shall meet the following requirements:
(i) Loans shall be made available to all Participants on a
reasonably equivalent basis.
(ii) Loans shall not be made available to Highly Compensated
Employees in an amount greater than the amount made available to other
Participants.
(iii) Loans shall be evidenced by the promissory notes of the
Participants, shall be adequately secured and shall bear a reasonable
interest rate. No
53
<PAGE>
more than 50% of the vested portion of the Participant's accounts may be
used as security for a loan.
(iv) In the event of default, foreclosure on the note and
attachment of security will not occur until a distributable event occurs
under the Plan.
(v) Each loan shall by its terms require that repayment
(principal and interest) be amortized in level payments, not less
frequently than quarterly, over a period not extending beyond five (5)
years from the date of the loan. If the loan is used to acquire any
dwelling unit which within a reasonable time is to be used (determined at
the time such loan is made) as a principal residence of the Participant,
then the repayment period shall not extend beyond 15 years.
(vi) The minimum loan amount shall be $1,000 and no Participant
may have more than two (2) outstanding loans from this Plan and any other
qualified plan maintained by the Employer or an Affiliated Company at any
time.
(vii) Each such loan shall be administered in accordance
with the Plan's participant loan policy.
(viii) Each Participant shall obtain the consent of his spouse to
the use of his accounts as security for the loan. Spousal consent shall be
obtained during the 90-day period ending on the date on which the loan is
to be so secured. Such consent shall be in writing, shall acknowledge the
effect of such loan, and shall be witnessed by a Plan representative or a
notary public. Such consent shall thereafter be binding with respect to the
consenting spouse or any subsequent spouse with respect to the loan.
54
<PAGE>
Each such loan shall be deemed to be an investment made at the direction of
such Participant and shall be credited to the separate investment account of the
borrowing Participant. The Participant's accounts (other than his Employer
Account) shall be reduced to the extent necessary to permit the establishment of
a separate loan account for such Participant in the following order:
Tax-Deferred Account, Rollover Account, Voluntary Account and Voluntary
Tax-Deferred Account. The reduction from the Investment Funds in each account
shall be made on a pro rata basis. All interest and loan repayments, adjusted
for administrative expenses, shall be credited to such Member's separate loan
account. Amounts credited to such Member's separate loan account as a result of
payments of interest and principal shall be credited to the Participant's
accounts in the inverse order used to fund the loan and shall be reinvested as
soon as practicable in the Plan's Investment Funds in accordance with the
investment election of the Participant for new contributions currently on file
with the Committee.
If any part or all of the amount standing to one or more of the
Participant's accounts under the Plan shall become distributable to such
Participant or his Beneficiary while a loan to such Participant under this
Section 7.04 is outstanding, the Committee shall direct the Trustee to apply the
amount of such distribution in payment of the entire outstanding loan principal,
whether or not then due, and any interest theretofore accrued, before
distributing the balance, if any, to the Participant or his Beneficiary.
55
<PAGE>
ARTICLE VIII
------------
ADMINISTRATION
--------------
8.1 Allocation of Responsibility. The Board of Directors of Tyco
----------------------------
International Ltd. and the Plan Administrator shall have only those specific
powers, duties, responsibilities and obligations as are specifically given them
under this Plan and the trust agreement. In general, such Board of Directors
shall have the sole responsibility for the appointment of the Retirement
Committee. The Board of Directors and Plan Administrator shall each warrant that
any directions given, information furnished or action taken shall be in
accordance with the provisions of this Plan authorizing or providing for such
directions, information or action.
8.2 Appointment of Plan Administrator. The Plan shall be administered by a
---------------------------------
Retirement Committee which shall consist of three or more members. Such members
shall be appointed by and serve at the pleasure of the Board of Directors of
Tyco International Ltd. All usual and reasonable expenses of the Committee shall
be paid by the Employer. Any members of the Committee who are employees of the
Employer shall not receive compensation with respect to their services on the
Committee. Any such Employee member shall not be precluded from participating in
this Plan, but shall not be permitted to make any decision or take any action
with respect to his own participation in the Plan.
Any action taken by the Committee shall be by majority rule of the members
of the Committee. The Committee may delegate to any one of their number
authority to sign documents on behalf of the Committee, or to perform
ministerial acts, but no person to whom such authority is delegated shall
perform any act involving the exercise of discretion
56
<PAGE>
without first obtaining the approval of the Committee. Any member of the
Committee may resign at any time by providing the Board of Directors of Tyco
International Ltd. with written notice of his intent to resign. Such Board of
Directors may remove any member of the Committee at any time by providing such
member with written notification of his removal.
8.3 Claims Procedure. The Plan Administrator shall make all determinations
----------------
as to the right of any person to a benefit. Any denial by the Plan Administrator
of the claim for benefits to a Participant, former Participant or Beneficiary
under the Plan shall be stated in writing by it and delivered or mailed to the
Participant, Former Participant or Beneficiary; and such notice shall set forth
the specific reasons for the denial, written to the best of its ability in a
manner that may be understood without legal or actuarial counsel.
Any person whose claim has been denied shall have the opportunity to appeal
such denial by written notification to the Plan Administrator within 60 days
following receipt of notice of denial. Within 60 days following receipt of such
written appeal, the Plan Administrator shall transmit written notification of
its decision regarding the appeal to said person, provided, however, that if the
Plan Administrator determines a hearing shall be necessary, such 60 day period
shall be extended to 120 days.
8.4 Records and Reports. The Plan Administrator shall exercise such
-------------------
authority and responsibility as it deems appropriate in order to comply with
ERISA, and governmental regulations issued thereunder relating to records of
Participant's Service, retirement benefits and the percentage of such benefits
which are nonforfeitable under the Plan; notifications to Participants; periodic
registration with the Internal Revenue Service; and annual reports to
57
<PAGE>
the Department of Labor. The Plan Administrator shall keep appropriate books and
records with respect to its operation and to furnish same, upon request, to the
Employer.
8.5 Powers and Duties of the Plan Administrator. The Plan Administrator
-------------------------------------------
shall have such duties and powers as may be necessary to discharge its duties
hereunder, including but not limited to the following:
(a) To amend, construe and interpret the Plan, decide all questions of
eligibility and determine the amount and time of payment of any benefits
hereunder;
(b) To prescribe procedures to be followed by Participants, Former
Participants or Beneficiaries in filing applications for benefits;
(c) To prepare and distribute, in such manner as it determines to be
appropriate, information explaining the Plan;
(d) To receive from the appropriate sources such information as
shall be necessary for the proper administration of the Plan;
(e) To receive, review and keep on file (as it deems convenient or
proper) reports of the financial condition, and of the receipts and
disbursements, of the assets from the Trustee;
(f) To appoint or employ individuals to assist in the administration
of the Plan and any other agents it deems advisable, including legal counsel.
(g) To select appropriate investment vehicles, including fixed
interest contracts, to constitute the Investment Funds available under the Trust
for the investment of plan assets, to permit Participants to direct investment
of their account balances in the Investment Funds, and to prescribe rules and
procedures relating to such directed investment.
58
<PAGE>
(h) To enter into any and all contracts, fixed interest contracts, and
agreements for carrying the terms of the Plan and the administration thereof and
to do all acts as the Plan Administrator, in its sole discretion, may deem
necessary or appropriate, and all such contracts, agreements, and acts shall be
binding and conclusive on the parties hereto and on the Employees involved.
The Plan Administrator shall have no power to add to, subtract from or
modify any of the terms of the Plan, or to change or add to any benefits
provided by the Plan, or to waive or fail to apply any requirements of
eligibility for a benefit under the Plan. Neither shall the Plan Administrator
have the power to prescribe in any manner internal procedures or operations of
the Employer.
8.6 Rules and Decisions. The Plan Administrator may adopt such rules as it
-------------------
deems necessary, desirable, or appropriate. All rules and decisions of the Plan
Administrator shall be uniformly and consistently applied to all Participants in
similar circumstances. When making a determination of calculation, the Plan
Administrator shall be entitled to rely upon information furnished by a
Participant or Beneficiary, or the legal counsel of the Employer, the insurance
company or the Trustee.
8.7 Authorization of Benefit Payments. The Plan Administrator shall issue
---------------------------------
directions to the appropriate party concerning the payment of all benefits which
are to be paid from the assets of the Plan and warrants that all such directions
are in accordance with the provisions of this Plan.
8.8 Application and Forms for Benefits. The Plan Administrator may require
----------------------------------
a Participant or Beneficiary to complete and file with them an application for
benefits and all
59
<PAGE>
other forms approved by them and furnish all pertinent information
requested by them, including the Participant's or Beneficiary's current mailing
address.
8.9 Facility of Payment. Whenever, in the Plan Administrator's opinion, a
-------------------
person entitled to receive any benefit hereunder is under a legal disability or
is incapacitated in any way so as to be unable to manage his financial affairs,
the Plan Administrator may cause payments otherwise payable to such person to be
made to such person's legal representative or to a relative or friend of such
person for his benefit. Any payment of benefit in accordance with the provisions
for this Section 8.9 shall be a complete discharge of any liability for the
making of such payment under the provisions of this Plan. In the event that a
person entitled to receive any benefit hereunder cannot be located after
reasonable efforts of the Plan Administrator, such person's benefit shall be
forfeited, and shall be reapplied in such a way as to offset future Employer
Matching Contributions under this Plan; provided, however, that if such person
subsequently files a claim for benefit with the Plan Administrator, such benefit
shall be restored (by a special Employer contribution) to the value previously
forfeited.
8.10 Compensation of Plan Administrator and Plan Expenses. The Plan
----------------------------------------------------
Administrator shall serve without compensation for services as such, but all
expenses of the Plan Administrator in administering the Plan shall constitute a
charge upon the Trust, unless paid by the Employer in its sole discretion. Such
expenses shall include any expenses incident to the functioning of the Plan and
Trust, including, but not limited to, attorneys' fees, fidelity bonding,
accounting and clerical charges, trustee fees, plan investment costs,
recordkeeping fees, consultants' fees and other costs of administering the Plan
and Trust.
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8.11 Indemnification. The Employer shall indemnify and hold harmless each
member of the Committee from and against any and all claims, losses, damages,
expenses (including reasonable attorneys' fees approved by the Employer) and
liability (including any reasonable amounts paid in settlement with the
Employer's approval) arising from any act or omission of such member, except
when the same is judicially determined to be due to the willful misconduct of
such member.
61
<PAGE>
ARTICLE IX
----------
MISCELLANEOUS
-------------
9.1 Nonguarantee of Employment. Nothing contained in this Plan shall be
--------------------------
construed as a contract of employment between the Employer and Employee, or as a
right of any Employee to be continued in the employment of the Employer, or as a
limitation of the right of the Employer to discharge any of its Employees, with
or without cause.
9.2 Rights of Employees and Beneficiaries. No Employee or Beneficiary shall
-------------------------------------
have any right to or interest in any assets of the Plan upon termination of
employment or otherwise, except as provided from time to time under this Plan,
and then only to the extent of the benefits payable under the Plan to such
Employee or Beneficiary out of such assets. All payments of benefits as provided
for in this Plan shall be made solely out of Plan assets.
9.3 Nonalienation of Benefits. Benefits payable under this Plan shall not
-------------------------
be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, charge, garnishment, execution, or levy of any
kind, either voluntary or involuntary, including any such liability which is for
alimony or other payments for the support of a spouse or former spouse, or for
any other relative of the Employee, prior to actually being received by the
person entitled to the benefit under the terms of the Plan; and any attempt to
anticipate, alienate, sell, transfer, assign, pledge, encumber, charge or
otherwise dispose of any right to benefits payable hereunder, shall be void. The
Plan assets shall not in any manner be liable for, or subject to, the debts,
contracts, liabilities, engagements or torts of any person entitled to benefits
hereunder. Notwithstanding the foregoing, benefits under the Plan shall be paid
in accordance with the applicable
62
<PAGE>
requirements of any qualified domestic relations order (within the meaning
of Section 404(a)(13)(B) and 414(p) of the Code and the regulations thereunder)
which has been received, and determined to be such, by the Plan Administrator.
9.4 Discontinuance of Employer Contributions. In the event of permanent
----------------------------------------
discontinuance of contributions to the Plan by the Employer, the accounts of all
Participants shall, as of the date of such discontinuance, become fully vested.
9.5 No Reversion to Employer. The Employer has no beneficial interest in
------------------------
the Plan assets and no part of the Plan assets shall ever revert or be repaid to
the Employer, directly or indirectly, except that: (a) if a contribution is made
by the Employer to the Plan by mistake of fact, such contribution may be
returned to the Employer within one year from the date the contribution is made,
or (b) if the Employer is denied a Federal income tax deduction with respect to
all or any portion of its contribution to the Plan, such contribution (to the
extent disallowed) shall be returned to the Employer within one (1) year from
the date of disallowance, it being the intent that all contributions to the Plan
by the Employer shall be so deductible.
9.6 Commencement and Timing of Distributions.
----------------------------------------
(a) Any distribution to be made under this Plan to any Participant
shall be made no later than the 60th day following the close of the Plan Year in
which the Participant reaches his Normal Retirement Date or terminates
employment, whichever is later.
(b) Any distribution to be made under this Plan to a Participant shall
begin no later than the April 1 following the close of the calendar year in
which such Participant attains age 70-1/2 (the "Required Beginning Date").
63
<PAGE>
(c) If the value of a terminated Participant's aggregate vested
interest in his accounts exceeds $3,500, distribution of benefits may not be
made to such Participant unless such Participant and his spouse (if the
Participant is married as of the date distribution of
benefits is to be made or commenced) elect to receive his distribution in
writing during the 90-day period ending on the annuity starting date; provided,
further, that spousal consent shall not be required with respect to the
commencement of benefits from a Participant's accounts prior to the
Participant's Normal Retirement Date in the Automatic Annuity Form pursuant to
Section 7.2. The Participant may also choose to delay the receipt of his
distribution until his Required Beginning Date. The value of the Participant's
accounts subject to distribution pursuant to this Section 9.6 shall be
determined as of a Valuation Date selected by the Plan Administrator which shall
apply on a uniform basis to all Participants in the same circumstances.
(d) Notwithstanding any other provision of the Plan, a Participant's
Tax-Deferred Account and Voluntary Tax-Deferred Account shall not be
distributable prior to his separation from service, Disability, death or
attainment of age 59-1/2, except (i) in cases of hardship as provided in Section
5.2 of the Plan, (ii) upon termination of the Plan without establishment or
maintenance of another defined contribution plan (other than an employee stock
ownership plan as defined in Section 4975(e)(7) of the Code), (iii) upon
disposition by the Employer or an Affiliated Company of substantially all of the
assets used by such corporation in a trade or business, in the case of a
Participant who continues employment with the corporation acquiring such assets,
or (iv) disposition by the Employer or an Affiliated Company of such
corporation's interest in a subsidiary, with respect to a
64
<PAGE>
Participant who continues employment with such subsidiary. No distribution
shall be authorized by clauses (ii), (iii) or (iv) above, unless the
distribution qualifies as a "lump sum distribution" within the meaning of
Section 401(k)(10)(B) of the Code.
(e) In the event a Participant dies before his Required Beginning
Date, his entire interest shall be paid to his Beneficiary in a lump sum no
later than December 31 of the calendar year containing the fifth (5th)
anniversary of the Participant's death; provided, however, that if the
Beneficiary is the Participant's spouse, the spouse may elect an annuity form of
payment which shall commence no later than December 31 of the calendar year in
which the Participant would have attained age 70 1/2.
If a Participant dies on or after his Required Beginning Date, the
Participant's remaining interest in the Plan shall be distributed at least as
rapidly as under the method of distribution being used as of the date of death.
(f) If, and to the extent that, any portion of a Participant's vested
account balances is payable to a former spouse or dependent pursuant to a
qualified domestic relations order within the meaning of Sections 401(a)(13)(B)
and 414(p) of the Code, the provisions of said order may provide for payments to
a former spouse or dependent even though the Participant is still employed by
the Employer or is otherwise not eligible for the distribution of benefits under
the Plan.
9.7 Jurisdiction. The Plan shall be construed in accordance with the laws
------------
of the jurisdiction of the State of New Hampshire except to the extent to which
said laws are superseded by Federal Law.
65
<PAGE>
9.8 Leased Employees. A "leased employee" shall receive credit for Hours of
----------------
Service and Years of Service for the entire period during which he is a leased
employee of the Employer as if he were an Employee of the Employer; provided,
however, that a leased employee shall not be an Eligible Employee for purposes
of participation in the Plan as long as he remains a leased employee. For
purpose of this Section 9.9, the term "leased employee" means any person (a) who
is not an Employee of the Employer and (b) who pursuant to an agreement between
the Employer and any other person (a "leasing organization") has performed
services for the Employer of a type historically performed by employees in the
business field of the Employer on a substantially full-time basis for a period
of at least one (1) year. Notwithstanding the foregoing, if leased employees
constitute less than 20% of the Employer's nonhighly compensated work force
within the meaning of Section 414(n)(5) of the Code, a person who is covered by
a money purchase pension plan maintained by the leasing organization which
provides a non-integrated employer contribution rate of at least ten percent
(10%) of compensation, immediate participation and full and immediate vesting
shall not be considered a "leased employee."
66
<PAGE>
ARTICLE X
---------
AMENDMENTS
----------
10.1 Amendments. This Plan may be amended at any time by action of Tyco
----------
International Ltd. or the Plan Administrator; provided, however, no one shall
have the power to amend or terminate this Plan in such manner as would cause or
permit any of the Trust assets to be diverted to purposes other than for the
exclusive benefit of the Participants or their Beneficiaries, or would result in
the elimination or reduction of a subsidy, early retirement benefit or an
optional form of benefit with respect to benefits attributable to service prior
to the amendment. Any action by Tyco International Ltd. under this Plan may be
made by resolution of its Board of Directors, or by any person or persons duly
authorized by resolution of said Board to take such action. Tyco International
Ltd. hereby delegates all rights and powers with regard to the Plan including
amendment or termination of the Plan, to the Plan Administrator, acting alone,
except as Tyco International, Ltd. may exercise the same for itself.
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ARTICLE XI
----------
SUCCESSOR EMPLOYER AND MERGER OR CONSOLIDATION OF PLANS
-------------------------------------------------------
11.1 Successor Employer. In the event of the dissolution, merger,
------------------
consolidation or reorganization of the Employer, provision may be made by which
the Plan will be continued by the successor; and, in that event, such successor
shall be substituted for the Employer under the Plan. The substitution of the
successor shall constitute an assumption of Plan liabilities by the successor
and the successor shall have all the powers, duties and responsibilities of the
Employer under the Plan.
11.2 Plan Assets. In the event of any merger or consolidation of the Plan,
-----------
or transfer in whole or in part of the assets and liabilities of the Plan to
another plan of deferred compensation maintained or to be established for the
benefit of all or some of the Participants of this Plan, the assets of this Plan
applicable to such Participants shall be transferred to the other plan only if:
(a) each Participant would (if either this Plan or the other plan then
terminated) 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
this Plan had then terminated);
(b) resolutions of the Plan Administrator under this Plan, or of any
new or successor employer of the affected Participants, shall authorize such
transfer of assets; and, in the case of the new or successor employer of the
affected Participants, its resolutions shall include an assumption of
liabilities with respect to such Participants inclusion in the new employer's
plan; and
68
<PAGE>
(c) such other plan is qualified under Section 401(a) of the Internal
Revenue Code.
69
<PAGE>
ARTICLE XII
-----------
PLAN TERMINATION
----------------
12.1 Right to Terminate. Tyco International Ltd., by action of its Board of
------------------
Directors, may terminate the Plan at any time. In the event of the dissolution,
merger, consolidation or reorganization of the Employer, the Plan shall
terminate and, subject to Section 9.6(e) of the Plan, the Plan assets shall be
liquidated unless the Plan is continued by a successor to the Employer.
12.2 Partial Termination. Upon termination of the Plan with respect to a
-------------------
group of Participants which constitutes a partial termination of the Plan, the
Plan Administrator shall allocate and segregate for the benefit of the Employees
then or theretofore employed by the Employer with respect to which the Plan is
being terminated the proportionate interest of such Participants in the Plan
assets. The assets so allocated and segregated shall be used by the Plan
Administrator to pay benefits to or on behalf of Participants in accordance with
Section 12.3.
12.3 Liquidation of the Plan. Upon termination or partial termination of
-----------------------
the Plan, the accounts of all Participants affected thereby shall become fully
vested, and the Plan Administrator shall, subject to the provisions of the
immediately-following paragraph, cause the assets remaining in the Plan,
including any Forfeitures which shall not have been applied to reduce Employer
contributions hereunder, to be allocated to the remaining Participants and
Beneficiaries in proportion to their respective account balances.
In the event that any service charges assessed under this Plan are due and
unpaid as of such Plan termination date, the payment of such charges shall be
satisfied (a) by deducting
70
<PAGE>
the required amount from any then unallocated Plan
assets, and/or, if the Plan assets are insufficient to pay the full required
amount, (b) by deducting a pro rata share of the amount remaining to be paid
from each Participant's Employer Account.
12.4 Manner of Distribution.
----------------------
To the extent that no discrimination in value
results, any distribution after termination of the Plan may be made, in whole or
in part, in cash, in securities or in non-transferable annuity contracts, as the
Participants may elect. All non-cash distributions shall be valued at fair
market value at date of distribution.
71
<PAGE>
ARTICLE XIII
------------
DISCHARGE OF DUTIES BY FIDUCIARIES
----------------------------------
The Board of Directors of Tyco International Ltd., the Plan Administrator,
and any other person who, by reason of his involvement under this Plan, shall be
deemed to be a fiduciary within the meaning of Title I, Section 3(12) of ERISA,
shall discharge their Plan related duties and responsibilities solely in the
interest of the Participants and their Beneficiaries and with the care, skill,
prudence and diligence under the circumstances then prevailing that a prudent
man acting in like capacity and familiar with such matters would use in the
conduct of an enterprise of a like character and with like aims. Any provision
in any agreement or other plan document which has the effect of relieving said
fiduciaries from responsibility for acts within the discretionary authority of
such persons are hereby deleted and cancelled.
72
<PAGE>
ARTICLE XIV
-----------
TOP-HEAVY PROVISIONS
--------------------
14.1 General Rule. For any Plan Year for which this Plan is a "top-heavy
------------
plan" as defined in Section 14.6 below, any other provisions of this Plan to the
contrary notwithstanding, this Plan shall be subject to the following
provisions:
(1) The vesting provisions set by Section 14.2.
(2) The minimum benefit provisions set by Section 14.3.
(3) The limitation on compensation set by Section 14.4.
(4) The adjustment to the combined plan limit set by Section 14.5.
14.2 Vesting Provisions. Each Participant who has completed the number of
------------------
years of Service specified in the following table shall have a nonforfeitable
right to the percentage of his Employer Account under this Plan correspondingly
specified in the following table:
Years of Percentage of
Service Nonforfeitable Benefit
------- ----------------------
2 20%
3 40%
4 60%
5 100%
14.3 Minimum Benefit Provisions. Each Participant who is a non-key employee
--------------------------
(as defined in Section 14.8 below) shall be entitled to an Employer contribution
for such Plan Year that shall be not less than three percent (3%) of the
Participant's compensation (as determined under Section 415 of the Code) for the
Plan Year. Tax-Deferred Contributions and Employer Matching Contributions may
not be used to satisfy the minimum benefit requirement of this Section 14.3.
73
<PAGE>
14.4 Limitation on Compensation. Annual earnings taken into account under
--------------------------
this Article XIV and under Article IV for purposes of determining each
Participant's share of Employer contributions (and forfeitures) under the Plan
shall not exceed the first $200,000 ($150,000 beginning January 1, 1994). Such
amount shall be adjusted automatically for each Plan Year to the amount
prescribed by the Secretary of the Treasury or his delegate pursuant to
regulations for the calendar year in which such Plan Year commences.
14.5 Adjustment to Combined Plan Limit. In determining the defined benefit
---------------------------------
plan fraction and the defined contribution plan fraction under Section 4.4
above, the number 1.0 shall be substituted for the number 1.25 each place it
appears in said Section.
14.6 Top-Heavy Plan Definition. This Plan shall be a "top-heavy plan" for
-------------------------
any Plan Year if, as of the determination date (as defined in subparagraph (a)
below), the present value of the accounts under the Plan for Participants
(including former Participants) who are "key employees" (as defined in Section
14.7 below) exceeds 60 percent of the sum of the accounts under the Plan for all
Participants (excluding the accounts of former "key employees" and of
employees who have not performed any services for the Employer at any time
during the five-year period ending on the determination date) or if this Plan is
required to be in an aggregation group (as defined in subparagraph (b) below)
which for such Plan Year is a top-heavy group (as defined in subparagraph (c)
below).
(a) "Determination date" means for any Plan Year the last day of the
immediately preceding Plan Year.
74
<PAGE>
(b) "Aggregation group" means the group of plans, if any, that
includes the group of plans that are required to be aggregated and, if the Plan
Administrator so elects, the group of plans that are permitted to be aggregated.
(i) The group of plans that are required to be aggregated (the
"required aggregation group") includes:
(A) each plan (including each terminated plan) of the
Employer and of Affiliated Companies in which a "key employee" is a
Participant, and
(B) each other plan (including each terminated plan) of the
Employer and of Affiliated Companies which enables a plan in which a
Key Employee is a Participant to meet the requirements of either
Section 401(a)(4) or Section 410 of the Code.
(ii) The plans that are permitted to be aggregated (the
"permissive aggregation group") includes any plan that is not part of the
"required aggregation group" that the Plan Administrator certifies as
constituting a plan within the "permissive aggregation group." Such plans
may be added to the "permissive aggregation group" only if, after the
addition, the "aggregation group" as a whole continues to meet the
requirements of both Section 401(a)(4) and Section 410 of the Code.
(c) "Top-heavy group" means the "aggregation group," if as of the
applicable determination date, the sum of the present value of the accrued
benefits for "key employees" under all defined benefit plans included in the
"aggregation group" plus the
75
<PAGE>
aggregate of the accounts of "key employees" under all defined contribution
plans included in the "aggregation group" exceeds 60 percent of the sum of the
present value of the accrued benefits for all employees under all such defined
benefit plans plus the aggregate accounts for all employees under such defined
contribution plans (excluding the accrued benefit and accounts of former "key
employees" and of employees who have not performed any services for the Employer
at any time during the five-year period ending on the determination date.)
(d) In determining whether this Plan constitutes a "top-heavy plan,"
the Plan Administrator shall follow the rules set forth in Section 416 of the
Code and regulations pertaining thereto.
14.7 Key Employee. The term "key employee" means any Participant (and any
------------
Beneficiary of a Participant) under this Plan who is a "key employee" as
determined in accordance with Section 416(i)(1) of the Code.
14.8 Non-Key Employee. The term "non-key employee" means any Employee (and
----------------
any beneficiary of an employee) who is a "non-key employee" as determined
in accordance with Section 416(i)(2) of the Code.
14.9 Change from Top-Heavy Status. In the event the Plan should become a
----------------------------
"top-heavy plan" for a Plan Year and subsequently revert to a plan which is not
top-heavy, subparagraphs (a) and (b) below shall apply:
(a) The change from a "top-heavy plan" to a plan which is not
top-heavy shall not reduce a Participant's nonforfeitable right to any amount
previously credited to his Employer Account under the Plan, and any Participant
who has completed three (3) or more Years of Service at the time the Plan
reverts to a plan which is not top-heavy shall continue
76
<PAGE>
to have his nonforfeitable right to benefits under the Plan determined in
accordance with Section 14.2 above.
(b) The change from a "top-heavy plan" to a plan which is not
top-heavy shall not reduce a Participant's account balances.
77
<PAGE>
ARTICLE XV
----------
DIRECT ROLLOVERS
----------------
15.01 Application of this Article. This Article applies to distributions
---------------------------
made on or after January 1, 1993. Notwithstanding any provision of the Plan to
the contrary that would otherwise limit a distributee's election under this
Article, a distributee may elect, at the time and in the manner prescribed by
the Committee, to have any portion of an Eligible Rollover Distribution from the
Plan paid directly to an Eligible Retirement Plan specified by the distributee
in a Direct Rollover.
15.02 Definitions. Whenever used in this Article or elsewhere in the
-----------
Plan, the following words shall have the following meanings:
(a) Eligible Rollover Distribution: An Eligible Rollover Distribution
is any distribution of all or any portion of the balance to the credit of the
distributee, except that an eligible rollover distribution does not include: any
distribution that is one of a series of substantially equal periodic payments
(not less frequently than annually) made for the life (or life expectancy) of
the distributee or the joint lives (or joint life expectancies) of the
distributee and the distributee's designated beneficiary, or for a specified
period of ten years or more; any distribution to the extent such distribution is
required under Section 401(a)(9) of the Code; and the portion of any
distribution that is not includible in gross income (determined without regard
to the exclusion for net unrealized appreciation with respect to employer
securities).
(b) Eligible Retirement Plan: An Eligible Retirement Plan is an
------------------------
individual retirement account described in Section 408(a) of the Code, an
individual retirement annuity
78
<PAGE>
described in Section 408(b) of the Code, an annuity plan described in
Section 403(a) of the Code, or a qualified trust described in Section 401(a) of
the Code, that accepts the distributee's Eligible Rollover Distribution.
However, in the case of an Eligible Rollover Distribution to the surviving
spouse, an Eligible Retirement Plan is an individual retirement account or
individual retirement annuity.
(c) Distributee: A distributee includes an Employee or former
Employee. In addition, the Employee's or former Employee's surviving spouse and
the Employee's or former Employee's spouse or former spouse who is the alternate
payee under a qualified domestic relations order, as defined in Section 414(p)
of the Code, are distributees with regard to the interest of the spouse or
former spouse.
(d) Direct Rollover: A Direct Rollover is a payment by the Plan to
the Eligible Retirement Plan specified by the distributee.
Executed this 5th day of August, 1994 by an authorized
member of the Retirement Committee.
RETIREMENT COMMITTEE UNDER
THE SIMPLEX HOURLY EMPLOYEES
RETIREMENT SAVINGS AND
INVESTMENT PLAN
By: /s/ John A. Helfrich
---------------------------------
79
ARMIN PLASTICS - DIVISION OF
TYCO INTERNATIONAL LTD.
RETIREMENT SAVINGS AND INVESTMENT PLAN
FOR CERTAIN NON-UNION HOURLY EMPLOYEES
Amended and Restated as of July 1, 1993
---------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I - DEFINITIONS. . . . . . . . . . . . . . . . . . . . 2
1.01 "AFFILIATED COMPANY" . . . . . . . . . . . . . . . . 2
1.02 "BASIC TAX-DEFERRED CONTRIBUTIONS" . . . . . . . . . 2
1.03 "BENEFICIARY". . . . . . . . . . . . . . . . . . . . 2
1.04 "BREAK IN SERVICE" . . . . . . . . . . . . . . . . . 2
1.05 "CODE" . . . . . . . . . . . . . . . . . . . . . . . 3
1.06 "COMMITTEE". . . . . . . . . . . . . . . . . . . . . 3
1.07 "COMPENSATION" . . . . . . . . . . . . . . . . . . . 3
1.08 "COMPUTATION PERIOD" . . . . . . . . . . . . . . . . 4
1.09 "DISABILITY" . . . . . . . . . . . . . . . . . . . . 4
1.11 "ELIGIBLE EMPLOYEE". . . . . . . . . . . . . . . . . 4
1.12 "EMPLOYEE" . . . . . . . . . . . . . . . . . . . . . 4
1.13 "EMPLOYER" . . . . . . . . . . . . . . . . . . . . . 5
1.14 "EMPLOYER ACCOUNT" . . . . . . . . . . . . . . . . . 5
1.15 "EMPLOYER MATCHING CONTRIBUTIONS". . . . . . . . . . 5
1.16 "EMPLOYMENT COMMENCEMENT DATE" . . . . . . . . . . . 5
1.17 "ENTRY DATE" . . . . . . . . . . . . . . . . . . . . 5
1.18 "ERISA". . . . . . . . . . . . . . . . . . . . . . . 5
1.19 "FAMILY MEMBER". . . . . . . . . . . . . . . . . . . 5
1.20 "FORFEITURE DATE". . . . . . . . . . . . . . . . . . 6
1.21 "HIGHLY COMPENSATED EMPLOYEE". . . . . . . . . . . . 6
1.22 "HOUR OF SERVICE". . . . . . . . . . . . . . . . . . 6
1.23 "INVESTMENT FUND" or "INVESTMENT FUNDS". . . . . . . 7
1.24 "NORMAL RETIREMENT DATE" . . . . . . . . . . . . . . 7
1.25 "PARTICIPANT". . . . . . . . . . . . . . . . . . . . 7
1.26 "PLAN" . . . . . . . . . . . . . . . . . . . . . . . 7
1.27 "PLAN ADMINISTRATOR" . . . . . . . . . . . . . . . . 7
1.28 "PLAN SPONSOR" . . . . . . . . . . . . . . . . . . . 7
1.29 "PLAN YEAR". . . . . . . . . . . . . . . . . . . . . 7
1.30 "QUALIFIED NONELECTIVE CONTRIBUTIONS". . . . . . . . 8
1.31 "ROLLOVER ACCOUNT" . . . . . . . . . . . . . . . . . 8
1.32 "SEVERANCE FROM SERVICE" . . . . . . . . . . . . . . 8
1.33 "SERVICE". . . . . . . . . . . . . . . . . . . . . . 8
1.34 "SUPPLEMENTAL TAX-DEFERRED CONTRIBUTIONS". . . . . . 9
1.35 "TAX-DEFERRED ACCOUNT" . . . . . . . . . . . . . . . 9
1.36 "TAX-DEFERRED CONTRIBUTIONS" . . . . . . . . . . . . 9
1.37 "TRUST". . . . . . . . . . . . . . . . . . . . . . . 9
1.38 "TRUSTEE". . . . . . . . . . . . . . . . . . . . . . 9
1.39 "VALUATION DATE" . . . . . . . . . . . . . . . . . . 9
1.40 "VOLUNTARY TAX-DEFERRED ACCOUNT" . . . . . . . . . . 9
(i)
<PAGE>
Page
----
1.41 "VOLUNTARY TAX-DEFERRED CONTRIBUTIONS" . . . . . . . 10
1.42 "YEAR OF ELIGIBILITY SERVICE". . . . . . . . . . . . 10
ARTICLE II - PLAN PARTICIPATION. . . . . . . . . . . . . . . . 11
2.01 PARTICIPATION. . . . . . . . . . . . . . . . . . . . 11
2.02 CESSATIONS OF PARTICIPATION AND ACTIVE
PARTICIPATION. . . . . . . . . . . . . . . . . . . . 12
2.03 REINSTATEMENT OF ACTIVE PARTICIPATION. . . . . . . . 12
2.04 BREAK IN SERVICE . . . . . . . . . . . . . . . . . . 12
2.05 TRANSFERS OF EMPLOYMENT; CHANGES IN EMPLOYMENT
STATUS . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE III - CONTRIBUTIONS. . . . . . . . . . . . . . . . . . 14
3.01 BASIC TAX-DEFERRED CONTRIBUTIONS . . . . . . . . . . 14
3.02 SUPPLEMENTAL TAX-DEFERRED CONTRIBUTIONS. . . . . . . 14
3.03 EMPLOYER MATCHING CONTRIBUTIONS. . . . . . . . . . . 15
3.04 FORFEITURES. . . . . . . . . . . . . . . . . . . . . 15
3.05 CHANGES IN LEVEL OF PARTICIPATION. . . . . . . . . . 15
3.06 VOLUNTARY TAX-DEFERRED CONTRIBUTIONS . . . . . . . . 16
3.07 ROLLOVER CONTRIBUTIONS . . . . . . . . . . . . . . . 17
3.08 DETERMINATION OF CONTRIBUTIONS . . . . . . . . . . . 18
3.09 PAYMENT OF CONTRIBUTIONS . . . . . . . . . . . . . . 18
3.10 FUNDING. . . . . . . . . . . . . . . . . . . . . . . 18
3.11 ELECTION OF INVESTMENTS. . . . . . . . . . . . . . . 18
ARTICLE IV - LIMITATIONS ON CONTRIBUTIONS AND ALLOCATIONS. . . 20
4.01 LIMITATION ON TAX-DEFERRED CONTRIBUTIONS . . . . . . 20
4.02 LIMITATION ON EMPLOYER MATCHING CONTRIBUTIONS. . . . 24
4.03 QUALIFIED NONELECTIVE CONTRIBUTIONS AND MULTIPLE
USE TEST . . . . . . . . . . . . . . . . . . . . . . 27
4.04 LIMITATIONS ON ANNUAL ADDITIONS. . . . . . . . . . . 28
ARTICLE V - WITHDRAWALS AND LOANS PRIOR TO TERMINATION OF
EMPLOYMENT. . . . . . . . . . . . . . . . . . . . . . . . 32
5.01 WITHDRAWALS FROM VOLUNTARY TAX-DEFERRED
ACCOUNTS . . . . . . . . . . . . . . . . . . . . . . 32
5.02 RESUMPTION OF VOLUNTARY CONTRIBUTIONS. . . . . . . . 34
5.03 PROCEDURE FOR WITHDRAWAL . . . . . . . . . . . . . . 34
5.04 LOANS TO PARTICIPANTS. . . . . . . . . . . . . . . . 34
ARTICLE VI - VESTING, SEVERANCE FROM SERVICE AND FORFEITURES . 38
6.01 VESTING. . . . . . . . . . . . . . . . . . . . . . . 38
6.02 SEVERANCE FROM SERVICE . . . . . . . . . . . . . . . 38
(ii)
<PAGE>
Page
----
6.03 FORFEITURES. . . . . . . . . . . . . . . . . . . . . 39
ARTICLE VII - DISTRIBUTIONS AT RETIREMENT, DEATH OR DISABILITY 41
7.01 DISTRIBUTIONS AT RETIREMENT. . . . . . . . . . . . . 41
7.02 NORMAL FORM OF ANNUITY . . . . . . . . . . . . . . . 44
7.03 DISTRIBUTIONS UPON INCURRING DISABILITY. . . . . . . 45
7.04 DISTRIBUTIONS AT DEATH . . . . . . . . . . . . . . . 46
ARTICLE VIII - ADMINISTRATION. . . . . . . . . . . . . . . . . 48
8.01 ALLOCATION OF RESPONSIBILITY . . . . . . . . . . . . 48
8.02 APPOINTMENT OF PLAN ADMINISTRATOR. . . . . . . . . . 48
8.03 CLAIMS PROCEDURE . . . . . . . . . . . . . . . . . . 49
8.04 RECORDS AND REPORTS. . . . . . . . . . . . . . . . . 49
8.05 POWERS AND DUTIES OF THE PLAN ADMINISTRATOR. . . . . 50
8.06 RULES AND DECISIONS. . . . . . . . . . . . . . . . . 51
8.07 AUTHORIZATION OF BENEFIT PAYMENTS. . . . . . . . . . 51
8.08 APPLICATION AND FORMS FOR BENEFITS . . . . . . . . . 51
8.09 FACILITY OF PAYMENT. . . . . . . . . . . . . . . . . 52
8.10 COMPENSATION OF PLAN ADMINISTRATOR AND PLAN
EXPENSES . . . . . . . . . . . . . . . . . . . . . . 52
8.11 INDEMNIFICATION. . . . . . . . . . . . . . . . . . . 53
ARTICLE IX - MISCELLANEOUS . . . . . . . . . . . . . . . . . . 54
9.01 NONGUARANTEE OF EMPLOYMENT . . . . . . . . . . . . . 54
9.02 RIGHTS OF EMPLOYEES AND BENEFICIARIES. . . . . . . . 54
9.03 NONALIENATION OF BENEFITS. . . . . . . . . . . . . . 54
9.04 DISCONTINUANCE OF EMPLOYER CONTRIBUTIONS . . . . . . 55
9.05 REVERSION TO EMPLOYER. . . . . . . . . . . . . . . . 55
9.06 COMMENCEMENT AND TIMING OF DISTRIBUTIONS . . . . . . 55
9.07 JURISDICTION . . . . . . . . . . . . . . . . . . . . 58
9.08 LEASED EMPLOYEES . . . . . . . . . . . . . . . . . . 58
9.09 EFFECTIVE DATE . . . . . . . . . . . . . . . . . . . 59
ARTICLE X - AMENDMENTS AND ACTION BY PLAN SPONSOR. . . . . . . 60
10.01 AMENDMENTS. . . . . . . . . . . . . . . . . . . 60
10.02 ACTION BY EMPLOYER. . . . . . . . . . . . . . . 60
ARTICLE XI - SUCCESSOR PLAN SPONSOR AND MERGER OR
CONSOLIDATION OF PLANS. . . . . . . . . . . . . . . 61
11.01 SUCCESSOR PLAN SPONSOR. . . . . . . . . . . . . 61
11.02 PLAN ASSETS . . . . . . . . . . . . . . . . . . 61
12.01 RIGHT TO TERMINATE. . . . . . . . . . . . . . . 62
12.02 PARTIAL TERMINATION . . . . . . . . . . . . . . 62
(iii)
<PAGE>
Page
----
12.03 LIQUIDATION OF THE PLAN . . . . . . . . . . . . 62
12.04 MANNER OF DISTRIBUTION. . . . . . . . . . . . . 63
ARTICLE XIII - DISCHARGE OF DUTIES BY FIDUCIARIES. . . . . . . 64
ARTICLE XIV - TOP-HEAVY PROVISIONS . . . . . . . . . . . . . . 65
14.01 GENERAL RULE. . . . . . . . . . . . . . . . . . 65
14.02 VESTING PROVISIONS. . . . . . . . . . . . . . . 65
14.03 MINIMUM BENEFIT PROVISIONS. . . . . . . . . . . 65
14.04 LIMITATION ON COMPENSATION. . . . . . . . . . . 66
14.05 ADJUSTMENT TO COMBINED PLAN LIMIT . . . . . . . 66
14.06 TOP-HEAVY PLAN DEFINITION . . . . . . . . . . . 66
14.07 KEY EMPLOYEE. . . . . . . . . . . . . . . . . . 68
14.08 NON-KEY EMPLOYEE. . . . . . . . . . . . . . . . 68
14.09 CHANGE FROM TOP-HEAVY STATUS. . . . . . . . . . 68
ARTICLE XV - DIRECT ROLLOVERS. . . . . . . . . . . . . . . . . 70
15.01 APPLICATION OF THIS ARTICLE . . . . . . . . . . 70
15.02 DEFINITIONS . . . . . . . . . . . . . . . . . . 70
(iv)
<PAGE>
FORWARD
-------
The Armin Corporation Retirement Savings and Investment Plan for Certain
Non-Union Hourly Employees (the "Plan") was established as of July 1, 1988 by
Armin Corporation, Armin Plastics Oklahoma, Inc. and Armin Poly-Version, Inc.
Oklahoma for the benefit of their eligible employees. The Plan was subsequently
amended, effective as of January 1, 1989, to make certain changes required by
the Tax Reform Act of 1986 and to permit participant-directed investments.
Effective July 1, 1993, the Plan is further amended and restated to make
additional changes required by the final regulations, to permit Voluntary
Tax-Deferred Contributions, hardship withdrawals and plan loans, and to change
the name of the Plan to Armin Plastics Division of Tyco International Ltd.
Retirement Savings and Investment Plan for Certain Non-Union Hourly Employees.
<PAGE>
ARTICLE I - DEFINITIONS
-----------------------
1.01 "AFFILIATED COMPANY" means (a) a corporation which, together with Tyco
International Ltd., is a member of a controlled group of corporations (as
defined in Section 414(b) of the Code), (b) a trade or business (whether or not
incorporated) which is under common control (as defined in Section 414(c) of the
Code) with Tyco International Ltd., (c) a corporation, partnership or other
entity which, together with Tyco International Ltd., is a member of an
affiliated service group (as defined in Section 414(m) of the Code), or (d) any
entity required to be aggregated with Tyco International Ltd. under Section
414(o) of the Code. For purposes of determining an Employee's Hours of Service,
years of Service, Years of Eligibility Service, and the occurrence of a Break in
Service under the Plan, any period of employment with Tyco International Ltd. or
with an Affiliated Company, including periods of employment with an Affiliated
Company or any predecessor entity prior to the date on which such entity became
an Affiliated Company if the Employee is employed by such entity on the date of
acquisition, shall be recognized.
1.02 "BASIC TAX-DEFERRED CONTRIBUTIONS" shall mean the contributions made
by the Employer for each Participant pursuant to Section 3.01 hereof which are
made on account of a salary adjustment agreement with such Participant.
1.03 "BENEFICIARY" shall mean the person(s) or other recipient(s)
designated in accordance with the provisions of Section 6.04 hereof to receive
any death benefit which may become payable under this Plan.
1.04 "BREAK IN SERVICE" shall mean a twelve (12) consecutive month period
during which the Employee does not perform any Hours of Service for the Employer
or any Affiliated Company. In the case of any Employee who is absent from work
for maternity or
2
<PAGE>
paternity reasons, the twelve-consecutive month period beginning on the first
anniversary of the first date of such absence shall not constitute a Break in
Service. For purposes of this paragraph, an absence from work for maternity or
paternity reasons means an absence from work by reason of pregnancy, birth or
adoption of a child, or for purposes of caring for such child during a period
beginning immediately following such birth or adoption.
1.05 "CODE" shall mean the Internal Revenue Code of 1986, and any
amendments thereto, and any rulings and regulations thereunder.
1.06 "COMMITTEE" shall mean the Retirement Committee appointed pursuant to
Article VIII hereof.
1.07 "COMPENSATION" shall mean direct cash compensation for the current
calendar year paid to a Participant by the Employer for services rendered,
including salaries, overtime pay, commissions, bonuses, and any amounts which
would have been paid to the Participant as cash compensation but for an election
by such Participant under Section 125 or 401(k) of the Code, but excluding any
other form of direct and indirect remuneration, and other forms of contributions
or benefits under this Plan. For Plan Years beginning after December 31, 1988
but before January 1, 1994, a Participant's Compensation for any Plan Year shall
not be taken into account to the extent that such Compensation exceeds $200,000,
subject to cost-of-living adjustments made by the Secretary of Treasury or his
delegate. For Plan Years beginning on or after January 1, 1994, the limitation
shall be reduced to $150,000.
In determining the Compensation of a Participant for purposes of this
$200,000 (or $150,000) limitation, the rules of Section 414(q)(6) of the Code
shall apply, except that in applying such rules, the term "family" shall include
only the spouse of the Participant and
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any lineal descendants of the Participant who have not attained age 19 before
the close of the Plan Year. If, as a result of the application of such rules,
the adjusted $200,000 (or $150,000) limitation is exceeded, then the limitation
shall be prorated among the affected individuals in proportion to each such
individual's compensation as determined under this section prior to application
of this limitation.
1.08 "COMPUTATION PERIOD" shall mean the twelve (12) consecutive month
period commencing on the Employee's Employment Commencement Date (or date of
reemployment in the case of an Employee who is reemployed after incurring one or
more Breaks in Service) and each anniversary thereof.
1.09 "DISABILITY" shall mean a Participant's permanent and total incapacity
of engaging in any employment for the Employer for physical or mental reasons.
Disability shall be deemed to exist only when such Participant meets either the
requirements for disability benefits under the Social Security law then in
effect, or the requirements for disability benefits under the Employer's long
term disability plan.
1.10 "EFFECTIVE DATE" of this amendment and restatement shall mean July 1,
1993 unless otherwise provided. The original effective date of this Plan shall
mean July 1, 1988.
1.11 "ELIGIBLE EMPLOYEE" shall mean any hourly non-union paid Employee of
the Employer listed on Schedule A from time to time.
1.12 "EMPLOYEE" shall mean any individual who is receiving remuneration for
services rendered to Tyco International Ltd., the Employer or any Affiliated
Company as a common law employee.
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1.13 "EMPLOYER" shall mean either Armin Plastics, a division of Tyco
International Ltd.
1.14 "EMPLOYER ACCOUNT" shall mean that portion of a Participant's interest
in the Plan which is attributable to the Employer Matching Contributions made on
his behalf hereunder.
1.15 "EMPLOYER MATCHING CONTRIBUTIONS" shall mean the contributions
required to be made by the Employer pursuant to Section 3.03. Such contributions
are in addition to the Tax-Deferred Contributions required to be made by the
Employer pursuant to salary adjustment agreements.
1.16 "EMPLOYMENT COMMENCEMENT DATE" shall mean the date the
Employee first performs an Hour of Service for Tyco International Ltd., the
Employer or an Affiliated Company.
1.17 "ENTRY DATE" shall mean January 1 or July 1 through June 30, 1993 and
shall mean January 1, April 1, July 1 or October 1 from July 1, 1993 onwards.
1.18 "ERISA" shall mean Public Law No. 93-406, the Employee Retirement
Income Security Act of 1974, and any amendments thereto and any rulings and
regulations thereunder.
1.19 "FAMILY MEMBER" shall mean the spouse or lineal ascendants or
descendants (and their spouses) of an Employee who owns (or is considered to own
within the meaning of Section 318 of the Code) more than 5% of the outstanding
stock of the Employer or an Affiliated Company or who is a member of a group
consisting of the ten (10) Highly Compensated Employees paid the greatest
Compensation during the Plan Year.
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1.20 "FORFEITURE DATE" shall mean, effective January 1, 1993, the day the
Participant ceases to be an Employee. A Participant who has no vested interest
in his Employer Account shall be deemed to be cashed-out of his Employer Account
on his Forfeiture Date.
1.21 "HIGHLY COMPENSATED EMPLOYEE" shall mean any person who is a "highly
compensated employee" within the meaning of Section 414(q) of the Code and the
regulations promulgated thereunder. In making this determination, the Committee
may elect to make the look-back year calculation for a determination year on the
basis of the calendar year ending with or within the applicable determination
year.
1.22 "HOUR OF SERVICE" shall mean"
(a) Each hour for which an Employee is paid, or entitled to payment,
for the performance of duties for the Employer. These hours shall be credited to
the Employee for the Computation Period in which the duties are performed;
(b) Each hour for which an Employee is paid, or entitled to payment,
by the 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. No more than 501 Hours of Service
shall be credited under this paragraph for any single continuous period of
absence for which no duties are performed (whether or not such period occurs in
a single Computation Period). Hours under this paragraph shall be calculated and
credited pursuant to Section 2530.200b-2(b) and (c) of the Department of Labor
Regulations which are incorporated herein by this reference;
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(c) Each hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by the Employer. The same Hours of
Service shall not be credited both under paragraphs (a) or (b), as the case may
be, and under this paragraph (c). These hours shall be credited to the Employee
for the Computation Period for which the award, agreement or payment is made.
1.23 "INVESTMENT FUND" or "INVESTMENT FUNDS" shall mean such one or more
investment vehicles, including but not limited to mutual funds and insurance
contracts, which the Plan Administrator may from time to time, in its sole
discretion, specify as being available for the investment of Trust assets at the
direction of the Participants.
1.24 "NORMAL RETIREMENT DATE" shall mean a Participant's 65th birthday.
1.25 "PARTICIPANT" shall mean any Eligible Employee who elects to
participate in the Plan in accordance with the provisions of Article II hereof
or who has funds in the Plan maintained for his benefit.
1.26 "PLAN" shall mean the Armin Plastics - Division of Tyco International
Ltd. Retirement Savings and Investment Plan for Certain Non-Union Hourly
Employees as set forth herein and as amended from time to time hereafter.
1.27 "PLAN ADMINISTRATOR" shall mean the Committee, or its successor(s),
who shall have those responsibilities of administering the Plan as set forth in
Article VIII hereof.
1.28 "PLAN SPONSOR" shall mean Tyco International Ltd.
1.29 "PLAN YEAR" shall mean the twelve (12) month period commencing on any
January 1, and ending on the succeeding December 31.
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1.30 "QUALIFIED NONELECTIVE CONTRIBUTIONS" shall mean contributions
made by the Employer on behalf of a Participant that (i) the Participant may not
elect to receive in cash until distributed from the Plan, (ii) is 100% vested
and nonforfeitable when made, and (iii) is not distributed from the Plan to the
Participant or his Beneficiary before the earlier of his separation from
service, death, Disability or the occurrence of any such events described in
Section 9.05(f), subsections (ii), (iii) or (iv). Qualified Nonelective
Contributions shall be allocated to a Participant's Tax-Deferred Account.
1.31 "ROLLOVER ACCOUNT" shall mean that portion of a Participant's interest
in this Plan which is attributable to any rollover contributions which he made
to the Plan pursuant to Section 3.07.
1.32 "SEVERANCE FROM SERVICE" means the earlier of the date on which an
Employee terminates employment, retires or dies, or the first anniversary of the
first day of absence (with or without pay) for any other reason. Transfers of an
Employee between and among Affiliated Companies, including Tyco International
Ltd., will not result in a Severance from Service.
1.33 "SERVICE" of an Employee shall mean a period of time commencing with
such Employee's Employment Commencement Date, and ending on the date of the
Employee's next following Severance from Service. In the case of an Employee who
performs an Hour of Service for the Employer or an Affiliated Company within
twelve (12) months of the date of his Severance from Service, his period of
Service shall include the period following his Severance from Service and, in
such event, said Severance from Service shall be disregarded for all purposes of
the Plan. Periods of Service which are not successive shall be aggregated. For
vesting purposes, credit shall be given only for whole
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years and (after aggregated as provided above) any remaining fraction of a year
shall be disregarded.
1.34 "SUPPLEMENTAL TAX-DEFERRED CONTRIBUTIONS" shall mean the contributions
made by the Employer for eligible Participants pursuant to Section 3.02
hereunder which are made on account of a salary adjustment agreement with each
such Participant.
1.35 "TAX-DEFERRED ACCOUNT" shall mean that portion of a Participant's
interest in the Plan which is attributable to his Basic and Supplemental
Tax-Deferred Contributions and his Qualified Nonelective Contributions.
1.36 "TAX-DEFERRED CONTRIBUTIONS" shall mean and include a Participant's
Basic Tax-Deferred Contributions, Supplemental Tax-Deferred Contributions and,
effective January 1, 1994, Voluntary Tax-Deferred Contributions, collectively.
1.37 "TRUST" means the trust created by an agreement between the Plan
Sponsor and the Trustee for purposes of holding Plan assets.
1.38 "TRUSTEE" means the trustee duly designated under the trust agreement
and any duly appointed successor trustee or trustees.
1.39 "VALUATION DATE" shall mean the last business day of each month
through September 30, 1993 and from October 1, 1993 onwards, shall mean each
business day of the Plan Year or which the New York Stock Exchange is open or
any other date the Committee shall designate.
1.40 "VOLUNTARY TAX-DEFERRED ACCOUNT" shall mean, effective
January 1, 1994, the portion of a Participant's interest in the Plan which is
attributable to his Voluntary Tax-Deferred Contributions.
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1.41 "VOLUNTARY TAX-DEFERRED CONTRIBUTIONS" shall mean, effective
January 1, 1994, the contributions made by the Employer for eligible
Participants pursuant to Section 3.06 hereunder which are made on account of a
salary adjustment agreement with each such Participant.
1.42 "YEAR OF ELIGIBILITY SERVICE" shall mean each Computation Period
during which an Employee is credited with at least 1,000 Hours of Service with
the Employer.
Wherever used herein, a pronoun in the masculine gender shall be considered
as including the feminine gender unless the context clearly indicates otherwise.
10
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ARTICLE II - PLAN PARTICIPATION
-------------------------------
2.01 PARTICIPATION. Each Eligible Employee who was actively participating
in the Plan on June 30, 1993 shall be eligible to continue as a Participant in
this Plan on July 1, 1993. Each other Eligible Employee, including each future
Eligible Employee, shall be eligible to become a Participant in this Plan as of
the Entry Date which coincides with or immediately follows the latest of:
(a) July 1, 1993;
(b) the date on which the Eligible Employee completes one (1) Year of
Eligibility Service; and
(c) the date the Employee becomes an Eligible Employee.
The Plan Administrator shall notify each Eligible Employee on or before the
date he is first eligible to participate, and shall supply each such Eligible
Employee with an application form on which to apply for inclusion in the Plan
and to authorize the Employer to adjust his salary in consideration of the Basic
Tax-Deferred Contributions to be made to the Plan by the Employer on his behalf.
Upon notification of eligibility and receipt of an application, an Eligible
Employee shall have 31 days (or such shorter period as the Plan Administrator
may specify) in which to return the completed application to the Plan
Administrator who shall, in turn, notify the Employer to begin making the
necessary salary adjustments and Basic Tax-Deferred Contributions in accordance
with Section 3.01 hereof. If an Eligible Employee should elect not to be
included in the Plan during such period, he may elect to become a Participant on
the Entry Date coincident with or next following the date he has completed and
returned said application to the Plan Administrator.
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2.02 CESSATIONS OF PARTICIPATION AND ACTIVE PARTICIPATION.
A Participant shall become an inactive Participant as of his Severance from
Service. He shall remain an inactive Participant until the date on which the
balance of his accounts are distributed to him, at which time he shall cease to
be a Participant.
2.03 REINSTATEMENT OF ACTIVE PARTICIPATION. If a Participant becomes
an inactive Participant or ceases to be such altogether and he is subsequently
reemployed as an Eligible Employee prior to the date he has incurred as a Break
in Service, he shall recommence active participation in this Plan upon his date
of reemployment or if he so elects, on a subsequent Entry Date, provided he
agrees to adjust his salary in return for the Employer making equivalent
Tax-Deferred Contributions to the Plan on his behalf.
2.04 BREAK IN SERVICE. The following shall apply to all Employees or
Participants who are reemployed after incurring a Break in Service:
(a) Employees or Participants Who Were Vested In Their Employer
-----------------------------------------------------------
Accounts. With respect to an Employee or Participant who was vested in his
- --------
Employer Account prior to his termination of employment, his prior years of
Service and Years of Eligiblity Service shall be fully restored upon
reemployment.
(b) Employees or Participants Who Were Not Vested In Their Employer
---------------------------------------------------------------
Accounts. With respect to an Employee or Participant who incurs a Break in
- --------
Service and who was not vested in his Employer Account prior to his termination
of employment, his prior years of Service and Years of Eligibility Service shall
be fully restored upon reemployment only if the number of his consecutive Breaks
in Service is less than the greater of five (5) or the aggregate number of Years
of Service before such break. If such Employee's or Participant's number of
consecutive Breaks in Service equals or exceeds the
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greater of five (5) or the aggregate number of years of Service before such
break, his prior years of Service and Years of Eligibility Service shall be
forfeited and he shall be treated as a new Employee for eligibility and vesting
purposes and for purposes of determining his eligibility to make Supplemental
Tax-Deferred Contributions.
If the prior Years of Service and Years of Eligibility Service of a former
Employee or Participant are restored pursuant to this Section 2.04, and such
fomer Employee or Participant otherwise meets the eligibility requirements of
Section 2.01, he shall commence participation in the Plan on his date of
reemployment, or if he so elects, on a subsequent Entry Date, provided he agrees
to adjust his salary in return for the Employer making equivalent Tax Deferred
Contributions to the Plan on his behalf.
2.05 TRANSFERS OF EMPLOYMENT; CHANGES IN EMPLOYMENT
STATUS. If an individual should transfer his employment from a non-participating
Affiliated Company to the Employer or if an individual should change the status
of his employment with the Employer and, in either case, he thereby becomes an
Eligible Employee, then for purposes of determining the Compensation of such an
Eligible Employee, compensation paid by such non-participating Affiliated
Company shall be included as if it had been paid by the Employer. If an Eligible
Employee should transfer his employment from the Employer to a non-participating
Affiliated Company or if an Eligible Employee should change the status of his
employment with the Employer and, in either case, he thereby ceases to be an
Eligible Employee, he shall cease to be an active Participant as of the day on
which such transfer or change in status occurs, but he shall not be deemed to
have incurred a Severance from Service, and he shall not be entitled to receive
a distribution from the Plan until his actual Severance from Service.
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ARTICLE III - CONTRIBUTIONS
---------------------------
3.01 BASIC TAX-DEFERRED CONTRIBUTIONS. Each Participant shall make Basic
Tax-Deferred Contributions to the Plan which shall entitle him to be credited
with Employer Matching Contributions. Subject to the limitations set forth in
Article IV, for each Plan Year, the total amount of Basic Tax-Deferred
Contributions which shall be made by or on behalf of each Participant shall be
equal to one percent (1%) of his Compensation. A Participant may elect to have
the Employer make Basic Tax-Deferred Contributions to the Plan on his behalf by
agreeing to adjust his Compensation by an amount equal to the amount of such
Basic Tax-Deferred Contributions. Basic Tax-Deferred Contributions shall be
credited to the Participant's Tax-Deferred Account.
3.02 SUPPLEMENTAL TAX-DEFERRED CONTRIBUTIONS. After a Participant has
completed five (5) years of Service, he may elect to make Supplemental
Tax-Deferred Contributions to the Plan, which shall entitle him to be credited
with additional Employer Matching Contributions, on the Entry Date coincident
with or next following his completion of five (5) years of Service. Subject to
the limitations set forth in Article IV, for each Plan Year, the maximum amount
of Supplemental Tax-Deferred Contributions which may be made by or on behalf of
a Participant shall be equal to the whole number percentage of the Participant's
Compensation which has been elected by the Participant, but such percentage
shall not exceed the maximum percentage applicable to such Participant. The
maximum percentage applicable to a Participant shall be determined in accordance
with the following schedule, based on the number of years of Service completed
by the Participant.
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Years of Maximum Supplemental
Service Tax-Deferred Contributions
------- --------------------------
5 - 9 1%
10 - 14 2%
15 - 19 3%
20 or more 4%
A Participant eligible under this Section 3.02 may elect to have the
Employer make Supplemental Tax-Deferred Contributions to the Plan on his behalf
by agreeing to a further downward adjustment in his Compensation equal to the
amount of such Supplemental Tax-Deferred Contributions. Supplemental
Tax-Deferred Contributions shall be credited to the Participant's Tax-Deferred
Account.
3.03 EMPLOYER MATCHING CONTRIBUTIONS. For each Plan Year,
Employer Matching Contributions shall be made on behalf of each Participant in
an amount equal to the sum of (a) two (2) times the amount of Basic Tax-Deferred
Contributions made on behalf of such Participant for such Plan Year; and (b) the
amount of Supplemental Tax-Deferred Contributions made on behalf of such
Participant for such Plan Year. Employer Matching Contributions shall be
credited to the Participant's Employer Account.
3.04 FORFEITURES. Amounts forfeited under Section 5.03 by Participants upon
termination of their employment with the Employer shall be reapplied in such a
way as to reduce future Employer Matching Contributions under the Plan.
3.05 CHANGES IN LEVEL OF PARTICIPATION. A Participant may elect to change
the percentage rate of his salary adjustment and the corresponding rate of Basic
and Supplemental Tax-Deferred Contributions on his behalf to any other
percentage rate (including zero) permissible for such Participant under Sections
3.01 and 3.02 as of any Entry Date. The Participant's election to change his
percentage rate of salary adjustment
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must be made in writing to the Plan Administrator at least 30 days prior to the
date on which the change is to be made effective.
A Participant may elect to suspend salary adjustment and the corresponding
Basic and Supplemental Tax-Deferred Contributions made on his behalf as of the
first day of any month. A Participant's election to suspend such contributions
must be made in writing to the Plan Administrator at least 30 days prior to the
first day of any month in which the suspension is to be made effective. A
Participant who suspends contributions pursuant to the foregoing proviso may
resume contributions as of any Entry Date which succeeds the date of suspension
by at least three (3) months, by means of written notice to the Plan
Administrator at least 30 days prior to the date on which the resumption is to
be effective.
3.06 VOLUNTARY TAX-DEFERRED CONTRIBUTIONS. Effective January 1,
1994, if a Participant is making Basic Tax-Deferred Contributions pursuant to
Section 3.01, he may elect to have the Employer make Voluntary Tax-Deferred
Contributions to the Plan on his behalf each year, but only if such Participant
has agreed to a further downward adjustment in his compensation equal to the
amount of such Voluntary Tax-Deferred Contributions.
Subject to the limitations set forth in Article IV, for each Plan Year, the
amount of Voluntary Tax-Deferred Contributions shall be equal to the dollar
amount or percentage of the Participant's Compensation which has been elected by
the Participant. Voluntary Tax-Deferred Contributions shall be credited to the
Participant's Voluntary Tax-Deferred Account.
A Participant may elect to change the rate or amount of the Voluntary
Tax-Deferred Contributions made on his behalf as of any Entry Date; provided,
however, that a Participant
16
<PAGE>
may elect to suspend salary adjustment pursuant to this Section 3.06 and the
Voluntary Tax-Deferred Contributions on his behalf as of the first day of any
month. A Participant's election to change the rate or amount of Voluntary
Tax-Deferred Contributions or to suspend such contributions must be made in
writing to the Plan Administrator at least 30 days prior to the date on which
the change or suspension is to be made effective. A Participant who suspends
Voluntary Tax-Deferred Contributions on his behalf pursuant to the foregoing
proviso may elect to resume such contribution as of any Entry Date which
succeeds the date of suspension by at least three (3) months, by means of
written notice to the Plan Administrator at least 30 days prior to the date on
which the resumption is to be effective.
3.07 ROLLOVER CONTRIBUTIONS. With the consent of the Plan Administrator, an
Eligible Employee may rollover any Eligible Rollover Distributions (as defined
in Section 15.02(a)) he may have received from another retirement plan and trust
qualified as an exempt employee benefit plan and trust under Sections 401(a) and
501(a) of the Code. Such Eligible Employee may also rollover distributions from
an individual retirement account or individual retirement annuity which consists
of prior lump sum distributions or Eligible Rollover Distributions from a
qualified employee benefit plan and trust, provided that such funds are
transferred to the Plan within 60 days after the Eligible Employee receives
them. Notwithstanding the foregoing, no rollover amounts may be accepted to the
extent prohibited by Sections 402 or 408 of the Code. Contributions under this
Section 3.07 shall be in cash only, and shall be fully vested and nonforfeitable
at all times. Rollover Contributions shall be credited to the Eligible
Employee's Rollover Account. Rollover Contributions shall not be deemed to be
Participant contributions for purposes of the limitations set forth in Sections
4.02 and 4.04.
17
<PAGE>
3.08 DETERMINATION OF CONTRIBUTIONS. The amount of Employer Matching
Contributions and Tax-Deferred Contributions shall be subject to final
determination by the Plan Administrator. The amount of such contributions, as
determined by the Plan Administrator, shall be conclusive and binding on all
persons.
3.09 PAYMENT OF CONTRIBUTIONS. The Employer Matching Contributions for each
Plan Year shall be made at such time or times as the Employer determines but not
later than the time required by law in order for the Employer to obtain a
deduction of the amount of such payment for Federal income tax purposes as
determined under the applicable provisions of the Code. All other contributions
made with respect to a pay period shall be paid into the Plan by the Employer no
later than thirty (30) days after the last day of such pay period.
3.10 FUNDING. The Plan Sponsor has entered into a trust agreement with a
Trustee, creating a Trust for the purpose of holding Plan assets and providing
benefits under the Plan. All contributions made by Participants or the Employer
under the Plan shall be invested in the Investment Funds and such other
investment vehicles as specifically provided in the trust agreement and shall be
held, managed and disposed of by the Trustee in accordance with the provisions
of the trust agreement for purposes contemplated by the Plan.
3.11 ELECTION OF INVESTMENTS.
(a) Each Participant, including a former Participant whose account
balances are still maintained in the Trust, shall elect the manner of investment
of all amounts standing to the credit of his accounts in the Trust among the
Investment Funds established under the Trust. By such election, the Participant
shall direct the portion of the aggregate amount then credited, and/or
thereafter to be credited, to his accounts which is to be invested by the
18
<PAGE>
Trustee in each of the Investment Funds, pursuant to such rules and regulations
as may be imposed by the Plan Administrator from time to time. The Plan
Administrator shall maintain records of account at all times adequately
reflecting each Participant's interest in each of the Investment Funds.
(b) A Participant may revoke his election as to any amounts then
standing in, and/or thereafter to be credited to, his accounts at such time or
times and in such manner as the Plan Administrator determines on a uniform basis
for all Participants, and may make a new investment election in accordance with
this Section 3.11. Effective October 1, 1993, such investment election changes
may be made on a daily basis. In the event that such a new election causes a
transfer of assets from one Investment Fund to another, the transfer shall be
made by the Trustee as soon as reasonably possible.
(c) To make an investment election, each Participant shall give notice
to the Plan Administrator in such form and at such time as the Plan
Administrator may reasonably require. To be effective, such an investment
election must be in accordance with any and all rules and regulations
established by the Plan Administrator for this purpose.
(d) Any investment election made hereunder shall continue to be
effective until properly revoked by the Participant.
(e) The Employer, the Plan Administrator and the Trustee shall have no
responsibility for the investment elections of the Participants and shall incur
no liability on account of investing the assets of the Trust in accordance with
such elections.
19
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ARTICLE IV - LIMITATIONS ON CONTRIBUTIONS AND ALLOCATIONS
---------------------------------------------------------
4.01 LIMITATION ON TAX-DEFERRED CONTRIBUTIONS.
(a) The aggregate Tax-Deferred Contributions made by the Employer for
each fiscal year shall not exceed that amount which, when added to the Employer
Matching Contributions made by the Employer for that fiscal year, equals the
maximum amount allowable as a deduction by the Employer under Section 404 of the
Code for such fiscal year.
(b) The aggregate Tax-Deferred Contributions made by the Employer for
any Participant under this Plan and all other Plans maintained by the Employer
or an Affiliated Company for any calendar year shall not exceed $7,000, subject
to cost-of-living adjustments made by the Secretary of Treasury or his delegate
pursuant to Section 402(g)(5) of the Code.
(c) At any time during the Plan Year, the Employer may suspend or
reduce the amount of Tax-Deferred Contributions with respect to any Highly
Compensated Employee on a prospective basis if the Plan Administrator determines
that such suspension or reduction is necessary to cause the test in either (i)
or, to the extent not prohibited by regulations promulgated by the Secretary of
Treasury, (ii) below to be met with respect to Tax-Deferred Contributions for
such Plan Year:
(i) the Actual Deferral Percentage for the Highly Compensated
Employees eligible for Tax-Deferred Contributions is not more than the
Actual Deferral Percentage for all other Employees eligible for
Tax-Deferred Contributions multiplied by 1.25; or
20
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(ii) the excess of the Actual Deferral Percentage for the Highly
Compensated Employees eligible for Tax-Deferred Contributions over the
Actual Deferral Percentage for all other Employees eligible for
Tax-Deferred Contributions is not more than two (2) percentage points, and
the Actual Deferral Percentage for the Highly Compensated Employees is not
more than the Actual Deferral Percentage for all other Employees eligible
for Tax-Deferred Contributions multiplied by two (2). All determinations
required under this subsection (c) shall be made by the Plan
Administrator and its determinations shall be final and binding on all
persons.
(d) For the purposes of subsection (c) above, the "Actual Deferral
Percentage" for a specified group of Employees for a Plan Year shall be the
average of the ratios (calculated separately for each Employee in such group and
expressed as a percentage) of (i) the amount of the Tax-Deferred Contributions
actually paid over to the Plan on behalf of the Employee for such Plan Year to
(ii) the Employee's "total compensation" for such Plan Year. If the Employer
elects to make Qualified Nonelective Contributions to the Plan, the Plan
Administrator may include any such contributions allocated to a Participant's
Tax-Deferred Account in determining the Participant's Actual Deferral
Percentage. For purposes of this subsection (d) and Section 4.02, "total
compensation" means the amount of compensation paid by the Employer to the
Participant during the Plan Year (or portion thereof in which the Participant is
eligible to participate in the Plan) which is subject to withholding and
required to be reported as wages on the Participant's Form W-2 plus the amount
which would have been paid to the Participant as cash compensation but for an
election by such Participant under Section 125 or 401(k) of the Code. The "total
compensation" taken into account with respect to a Participant for any Plan Year
beginning
21
<PAGE>
on or before December 31, 1993 shall not exceed $200,000 (subject to
cost-of-living adjustments made by the Secretary of Treasury or his delegate).
For Plan Year beginning after December 31, 1993, "total compensation" shall not
exceed $150,000 (subject to cost-of-living adjustments made by the Secretary of
Treasury or his delegate).
(e) In determining the deferral percentage of a Highly Compensated
Employee who has a Family Member who is an Employee, the Tax-Deferred
Contributions made on behalf of such Highly Compensated Employee and the total
compensation of such Highly Compensated Employee shall include the Tax-Deferred
Contributions and total compensation of the Family Member, and the Family Member
shall not be considered a separate Employee for purposes of determining the
Actual Deferral Percentage for any group under the Plan to the extent required
by Section 414(q) of the Code and any regulations promulgated thereunder;
(f) If the Plan satisfies the requirements of Section 401(k),
401(a)(4) or 410(b) of the Code (other than the average benefit percentage test)
only if aggregated with one or more other qualified plans, or if one or more
other plans satisfy such requirements only if aggregated with this Plan, then
this Section 4.01 shall be applied by determining the Actual Deferral Percentage
of Employees as if all such plans were a single plan. Notwithstanding the above
requirements, for Plan Years beginning after December 31, 1989, plans may be
aggregated to satisfy Section 401(k) of the Code only if they have the same Plan
Year.
(g) In the event the Tax-Deferred Contributions actually made on
behalf of Highly Compensated Employees exceed the limitation in subsection (c)
above, the Plan Administrator shall direct the Trustee to reduce such
contributions of such Highly
22
<PAGE>
Compensated Employees in order of their deferral percentages, beginning with the
highest of such percentages, to the extent necessary to cause the Plan to meet
such limitation. Such reduction shall be made first with respect to Voluntary
Tax-Deferred Contributions, then (if and to the extent necessary) with respect
to Supplemental Tax-Deferred Contributions, and then (if and to the extent
necessary) with respect to Basic Tax-Deferred Contributions. Any reduction in
Basic or Supplemental Tax-Deferred Contributions shall also be accompanied by a
reduction of the associated Employer Matching Contributions and such
contributions shall be forfeited and shall be applied to reduce future Employer
Matching Contributions. Any Tax-Deferred Contributions so reduced, as adjusted
for income or loss allocable thereto in accordance with Section 4.01(h) below,
shall be distributed to the Highly Compensated Employees on whose behalf such
contributions were made as soon as practicable, but no later than December 31 of
the following Plan Year.
(h) The income or loss allocable to a Participant's Tax-Deferred
Contributions which exceed the limitation of subsection (c) above shall be
determined by multiplying the investment gain or loss of such Participant's
Tax-Deferred Account or Voluntary Tax-Deferred Account for such Plan Year from
which such excess Tax-Deferred Contributions are withdrawn by a fraction. The
numerator of this fraction is the amount of the Participant's excess
Tax-Deferred Contributions to be distributed and the denominator is the amount
credited to the Participant's Tax-Deferred Account or Voluntary Tax-Deferred
Account as of the beginning of the Plan Year, increased by the Tax-Deferred
Contributions allocable to such account for such Plan Year.
(i) If, during any Plan Year, more than the maximum permissible amount
under Section 402(g) of the Code is allocated pursuant to one or more cash or
deferred
23
<PAGE>
arrangements to a Participant's account under this Plan and any other
plan described in Section 401(k), 408(k), or 403(b) of the Code, the following
provision shall apply:
(i) No later than March 1 of the next succeeding Plan Year, the
Participant may, but is not required to, allocate all or part of such
contributions in excess of the maximum permissible amount ("excess
deferrals") to this Plan. To be effective, such allocation must be in
writing, state that excess deferrals have been made on behalf of such
Participant for the preceding Plan Year, and be submitted to the Plan
Administrator.
(ii) To the extent a Participant timely allocates excess
deferrals to this Plan pursuant to (i) above, the Plan Administrator
shall direct the Trustee to distribute such excess deferral, adjusted
for income or losses as determined in accordance with subsection (h)
above, to the Participant no later than the April 15 following such
allocation.
4.02 LIMITATION ON EMPLOYER MATCHING CONTRIBUTIONS.
(a) For each Plan Year, the Employer Matching Contributions made with
respect to any Highly Compensated Employee shall be reduced if the Plan
Administrator determines that such reduction is necessary to cause the test in
either (i) or, to the extent not prohibited by regulations promulgated by the
Secretary of the Treasury, (ii) below to be met with respect to such
contributions for such Plan Year:
(i) the Actual Contribution Percentage for the Highly
Compensated Employees eligible to participate in the Plan is not more
than the Actual Contribution Percentage for all other Employees
eligible to participate in the Plan multiplied by 1.25; or
24
<PAGE>
(ii) the excess of the Actual Contribution Percentage for the
Highly Compensated Employees eligible to participate in the Plan over
the Actual Contribution Percentage for all other Employees eligible to
participate in the Plan is not more than two (2) percentage points,
and the Actual Contribution Percentage for the Highly Compensated
Employees eligible to participate in the Plan is not more than the
Actual Contribution Percentage for all other Employees eligible to
participate in the Plan multiplied by two (2).
All determinations required under this subsection (a) shall be made by the
Plan Administrator and its determinations shall be final and binding on all
persons.
(b) For purposes of subsection (a) above, the "Actual Contribution
Percentage" for a specified group of Employees for a Plan Year shall be the
average of the ratios (calculated separately for each Employee in such group and
expressed as a percentage) of (i) the amount of Employer Matching Contributions
actually paid over to the Plan on behalf of the Employee for such Plan Year to
(ii) the Employee's "total compensation" for the Plan Year (as defined in
Section 4.01(d) above). To the extent permitted by applicable regulations, the
Plan Administrator may include the Tax-Deferred Contributions of a Participant
who is not a Highly Compensated Employee in determining his Actual Contribution
Percentage, to the extent that such Contributions are not used in determining
his Actual Deferral Percentage under Section 4.01. If the Employer elects to
make Qualified Nonelective Contributions to the Plan, the Plan Administrator may
include any such contributions allocated to a Participant's Tax-Deferred Account
in determining the Participant's Actual Contribution Percentage.
25
<PAGE>
(c) In determining the contribution percentage of a Highly Compensated
Employee who has a Family Member who is an Employee, the Employer Matching
Contributions made on behalf of and the "total compensation" of such Highly
Compensated Employee shall include the Employer Matching Contributions and
"total compensation" of his Family Member, and the Family Member shall not be
considered a separate Employee for purposes of determining the Actual
Contribution Percentage for any group under the Plan to the extent required by
Section 414(q) of the Code and any regulations promulgated thereunder.
(d) If the Plan satisfies the requirements of Section 401(m),
401(a)(4) or 410(b) of the Code (other than the average benefit percentage test)
only if aggregated with one or more other qualified plans, or if one or more
other plans satisfy such requirements only if aggregated with this Plan, then
this Section 4.02 shall be applied by determining the Actual Contribution
Percentage of Employees as if all such plans were a single plan. Notwithstanding
the above requirements, for Plan Years beginning after December 31, 1989, plans
may be aggregated to satisfy Section 401(m) of the Code only if they have the
same Plan Year. The Plan Administrator may include the Basic, Supplemental, or
Voluntary Tax-Deferred Contributions of a Participant who is not a Highly
Compensated Employee in determining his Actual Contribution Percentage, to the
extent that such contributions are not used in determining his Actual Deferral
Percentage under Section 4.01.
(e) If, for any Plan Year, the Plan Administrator determines that the
Actual Contribution Percentage for the Highly Compensated Employees exceed the
limitation set forth in subsection (a) above, the Plan Administrator shall
direct the Trustee to distribute to the Highly Compensated Employees, in order
of their contribution percentages beginning
26
<PAGE>
with the highest of such percentages, the amount necessary to cause the Plan to
meet such limitation. Such Employer Matching Contributions shall be adjusted for
income or loss allocable thereto in accordance with Section 4.02(f) below, and
shall be distributed to the Highly Compensated Employee on whose behalf such
contributions were made as soon as practicable, but no later than December 31 of
the following Plan Year. Notwithstanding the foregoing, if a Highly Compensated
Employee is not vested in the amount of Employer Matching Contributions to be
distributed to him pursuant to the foregoing sentence, such amount shall not be
distributed to him and shall be forfeited and used to reduce future Employer
Matching Contributions.
(f) The income or loss allocable to a Participant's Employer Matching
Contributions which exceed the limitation set forth in subsection (a) above
shall be determined by multiplying the investment gain or loss of such
Participant's Employer Account by a fraction. The numerator of this fraction is
the amount of the Participant's excess Employer Matching Contributions to be
distributed and the denominator is the amount credited to the Participant's
Employer Account as of the beginning of the Plan Year, increased by the Employer
Matching Contributions allocable to such account for such Plan Year.
4.03 QUALIFIED NONELECTIVE CONTRIBUTIONS AND MULTIPLE USE
TEST.
(a) The Employer may elect to make Qualified Nonelective
Contributions, which shall be considered, to the extent necessary, in conducting
the nondiscrimination tests of Sections 4.01 and 4.02. Such contributions (i)
may be made as a uniform percentage of Compensation or as a uniform dollar
amount contributed on a per capita basis, (ii) may be
27
<PAGE>
made for all or certain of those Participants who are not Highly Compensated
Employees, and (iii) may be made at any time prior to the end of the twelve (12)
month period immediately following the Plan Year to which such contributions
relate. Qualified Nonelective Contributions under this Section shall be
allocated to the appropriate Participants' Tax-Deferred Accounts which shall be
fully vested and nonforfeitable at all times.
(b) The Basic Tax-Deferred Contributions, Supplemental Tax-Deferred
Contributions, Voluntary Tax-Deferred Contributions and Employer Matching
Contributions of a Highly Compensated Employee shall be further reduced and
returned to such Employee to the extent necessary to comply with rules and
regulations of the Internal Revenue Service promulgated to prevent the multiple
use of the alternative limitation set forth in Section 4.01(c)(ii) and Section
4.02(a)(ii).
(c) To the extent permitted by Treasury regulations, the Plan
Administrator may restructure the Plan into component plans for purposes of
conducting the nondiscrimination tests of Sections 4.01 and 4.02.
4.04 LIMITATIONS ON ANNUAL ADDITIONS.
(a) All annual additions made under the provisions of Article III or
this Article IV with respect to any Participant in any Limitation Year shall be
limited to the lesser of:
(i) $30,000 (or, if greater, one-fourth of the defined benefit
dollar limitation as set forth in Section 415(b)(1) of the Code, as
adjusted beginning in 1988 pursuant to Section 415(d) of the Code), or
28
<PAGE>
(ii) 25% of the Participant's compensation (determined in
accordance with Treasury Regulations Section 1.415-2(d)(11)(ii)) for
such Limitation Year.
For purposes of this Section 4.04, the term "annual addition" shall mean
the sum of:
(A) Tax-Deferred Contributions, including amounts returned
to the Participant pursuant to Section 4.01(e) but excluding
amounts returned to the Participant pursuant to Section 4.01(i),
(B) Employer Matching Contributions plus forfeitures,
including amounts forfeited or returned to the Participant
pursuant to Section 4.02, and
(C) Qualified Nonelective Contributions.
In any case where a Participant is, or has been, included in a
tax-qualified defined benefit plan of the Employer or any Affiliated Company,
the sum of such Participant's defined benefit plan fraction and defined
contribution plan fraction shall not exceed one (1) for any Limitation Year, and
the annual additions to such Participant's accounts under this Plan shall be
further limited to the extent necessary to comply with such combined plan limit.
The defined benefit plan fraction of a Participant for any Limitation Year
is a fraction, the numerator of which is the projected annual normal retirement
benefit of such Participant under such defined benefit plan determined as of the
close of such Limitation Year and the denominator of which is the lesser of:
(i) the product of 1.25 multiplied by the dollar limitation in
effect for such Limitation Year under Section 415(b)(1)(A) of the
Code; or
29
<PAGE>
(ii) the product of 1.4 multiplied by such Participant's highest
three (3) years' average compensation (as defined by Section 415 of
the Code).
The defined contribution plan fraction of a Participant for any Limitation
Year is a fraction, the numerator of which is the aggregate amount as of the
close of such Limitation Year of the annual additions credited to such
Participant's accounts under the Plan and the denominator of which is the sum of
the lesser of the following amounts determined for such Limitation Year and each
prior Limitation Year of Service with the Employer or any Affiliated Company:
(i) the product of 1.25 multiplied by the dollar limitation in
effect for the Limitation Year under Section 415(c)(1)(A) of the Code;
or
(ii) the product of 1.4 multiplied by twenty-five percent (25%)
of such Participant's total compensation (determined in accordance
with Treasury Regulations Section 1.415-2(d)(11)(ii)) for the
Limitation Year.
If the foregoing limit is applicable to a Participant for a Limitation Year, the
Plan Administrator shall reduce the annual additions to his accounts in the
following order of priority:
(1) against the Tax-Deferred Contributions made on behalf of
such Participant, the amount of such reduction to be held
unallocated and applied to reduce future Tax-Deferred
Contributions under the Plan in the succeeding Limitation Year;
(2) against the Employer Matching Contributions (including
forfeitures) made on behalf of the Participant, the amount of
such reduction to be held unallocated and applied to reduce
Employer
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<PAGE>
Matching Contributions to the Plan in the succeeding
Limitation Year, and
(3) the Plan Administrator may elect from time to time to
return the Tax-Deferred Contributions to the Participant.
For purposes of this Section 4.04, the Limitation Year shall be the Plan
Year.
31
<PAGE>
ARTICLE V - WITHDRAWALS AND LOANS PRIOR
---------------------------------------
TO TERMINATION OF EMPLOYMENT
----------------------------
5.01 WITHDRAWALS FROM VOLUNTARY TAX-DEFERRED ACCOUNTS.
Effective January 1, 1994, and subject to the requirements of Section 5.04, a
Participant may, at any time prior to the distribution of his Voluntary
Tax-Deferred Account, request to withdraw a cash amount equal to all or a
specified portion of the value of such account. If the Participant is under age
59-1/2, the maximum amount which a Participant may withdraw from his Voluntary
Tax-Deferred Account pursuant to the rules of this Section 5.01 shall not exceed
the amount of his Voluntary Tax-Deferred Account as of December 31, 1988 plus
all Voluntary Tax-Deferred Contributions allocated to said account after such
date. The Participant's request to withdraw must be made in writing to the Plan
Administrator and such request shall specify the amount requested, the reason
for the withdrawal and such additional information as the Plan Administrator
shall require.
The withdrawal of any amount from a Participant's Voluntary Tax-Deferred
Account shall be subject to the consent of the Plan Administrator. The basis for
the Plan Administrator consenting or refusing to consent to the Participant's
request shall be its determination that the requested withdrawal is necessary to
allow such Participant to meet an immediate and heavy financial need which such
Participant is not able to meet from any other reasonably available resources.
The foregoing standard shall be applied by the Plan Administrator so as to
conform to the requirements of Section 401(k) of the Code and the regulations
thereunder. Notwithstanding the foregoing, a Participant who has attained age
59-1/2 may withdraw a cash amount equal to all or a specified portion of his
Voluntary
32
<PAGE>
Tax-Deferred Account, including earnings, without the need to seek the
consent of the Plan Administrator.
A distribution shall be deemed to be made on account of an immediate and
heavy financial need of the Participant if the distribution is on account of:
(a) Medical expenses described in Section 213(a) of the Code incurred
by the Participant, his spouse or his dependents or expenses necessary for these
persons to obtain medical care;
(b) Purchase (excluding mortgage payments) of a principal residence
of the Participant;
(c) Payment of tuition and related educational fees for the next
twelve (12) months of post-secondary education for the Participant, his spouse
or his dependents;
(d) The need to prevent eviction of the Participant from his
principal residence or foreclosure on the mortgage of the Participant's
principal residence;
(e) Any other financial need permitted by the Commissioner of the
Internal Revenue Service.
If a Participant has an immediate and heavy financial need as described
above, he may receive a hardship withdrawal not in excess of the amount of the
immediate and heavy financial need (including amounts necessary to pay any
federal, state or local income taxes or penalties reasonably anticipated to
result from the distribution) provided the Plan Administrator determines that
such Participant is not able to meet such need from any other reasonably
available resources. In determining that such Participant is not able to meet
such financial hardship from any other sources, the Plan Administrator may
reasonably rely upon
33
<PAGE>
the written certification of the Participant given in accordance with the
regulations promulgated under Section 401(k) of the Code.
5.02 RESUMPTION OF VOLUNTARY CONTRIBUTIONS. Any Participant who makes a
withdrawal in accordance with this Article V shall be prohibited from making
Voluntary Tax-Deferred Contributions for a period of twelve (12) months. After
the expiration of such period, the Participant may elect to resume Voluntary
Tax-Deferred Contributions if he is otherwise eligible under the rules set forth
in Section 3.06. Amounts withdrawn by a Participant may not be returned to this
Plan.
5.03 PROCEDURE FOR WITHDRAWAL. Each withdrawal pursuant to Section
5.01 shall be made as soon as practicable following the date the Trustee
receives from the Plan Administrator such written notice of withdrawal as shall
be required by the Trustee. The amount to be so withdrawn shall be that
specified in such written notice and shall be limited to the value of the
Participant's Voluntary Tax-Deferred Account and by the provisions of Section
5.01.
In no event will a Participant be allowed to withdraw any portion of his
Rollover Account, Tax-Deferred Account or Employer Account prior to the date of
the termination of his employment.
5.04 LOANS TO PARTICIPANTS. Effective October 1, 1993 and upon written
application of an active Participant, the Committee may direct the Trustee to
lend to the Participant such amount or amounts as the Committee may determine
proper from the Participant's accounts in the Plan (other than his Employer
Account), provided that the aggregate amount of all outstanding loans from this
Plan and from any other qualified plan maintained by the Employer or an
Affiliated Company, including accrued interest thereon,
34
<PAGE>
shall not exceed the lesser of (a) $50,000, reduced by any loan repayment made
during the one (1) year period ending on the day before the date such loan is
made, (b) 50% of the Participant's vested interest in his accounts (determined
at the time the loan is made), or (c) the Participant's total account balance
less the Employer Account balance.
Each loan to Participants shall meet the following requirements:
(i) Loans shall be made available to all Participants on a reasonably
equivalent basis.
(ii) Loans shall not be made available to Highly Compensated Employees
in an amount greater than the amount made available to other Participants.
(iii) Loans shall be evidenced by the promissory notes of the
Participants, shall be adequately secured and shall bear a reasonable
interest rate. No more than 50% of the vested portion of the Participant's
accounts may be used as security for a loan.
(iv) In the event of default, foreclosure on the note and attachment
of security will not occur until a distributable event occurs under the
Plan.
(v) Each loan shall by its terms require that repayment (principal and
interest) be amortized in level payments, not less frequently than
quarterly, over a period not extending beyond five (5) years from the date
of the loan. If the loan is used to acquire any dwelling unit which within
a reasonable time is to be used (determined at the time such loan is made)
as a principal residence of the Participant, then the repayment period
shall not extend beyond 15 years.
35
<PAGE>
(vi) The minimum loan amount shall be $1,000 and no Participant may
have more than two (2) outstanding loans from this Plan and any other
qualified plan maintained by the Employer or an Affiliated Company at any
time.
(vii) Each Participant who has elected to receive his benefit in the
form of an annuity shall obtain the consent of his spouse to the use of his
accounts as security for the loan. Spousal consent shall be obtained during
the 90-day period ending on the date on which the loan is to be so secured.
Such consent shall be in writing, shall acknowledge the effect of such
loan, and shall be witnessed by a Plan representative or a notary public.
Such consent shall thereafter be binding with respect to the consenting
spouse or any subsequent spouse with respect to the loan.
(viii) Each such loan shall be administered in accordance with the
Plan's participant loan policy.
Each such loan shall be deemed to be an investment made at the direction of such
Participant and shall be credited to the separate investment account of the
borrowing Participant. The Participant's accounts (other than his Employer
Account) shall be reduced to the extent necessary to permit the establishment of
a separate loan account for such Participant in the following order:
Tax-Deferred Account, Rollover Account, and Voluntary Tax-Deferred Account. The
reduction from the Investment Funds in each account shall be made on a pro rata
basis. All interest and loan repayments, adjusted for administrative expenses,
shall be credited to such Member's separate loan account. Amounts credited to
such Member's separate loan account as a result of payments of interest and
principal shall be credited to the Participant's accounts in the inverse order
used to fund the loan and shall be reinvested as soon as practicable in the
Plan's Investment Funds in accordance with the
36
<PAGE>
investment election of the Participant for new contributions currently on file
with the Committee.
If any part or all of the amount standing to one or more of the
Participant's accounts under the Plan shall become distributable to such
Participant or his Beneficiary while a loan to such Participant under this
Section 5.05 is outstanding, the Committee shall direct the Trustee to apply the
amount of such distribution in payment of the entire outstanding loan principal,
whether or not then due, and any interest theretofore accrued, before
distributing the balance, if any, to the Participant or his Beneficiary.
37
<PAGE>
ARTICLE VI - VESTING, SEVERANCE FROM SERVICE AND FORFEITURES
------------------------------------------------------------
6.01 VESTING.
(a) A Participant shall at all times be 100% vested in his
Tax-Deferred Account, Rollover Account and Voluntary Tax-Deferred Account.
(b) A Participant's interest in his Employer Account shall become 100%
vested at the earliest of the following dates:
(i) The date the Participant has completed five (5) years of
Service.
(ii) The date of the Participant's death.
(iii) The date the Participant incurs a Disability.
(iv) The date the Plan is terminated in accordance with Section
12.01 or 12.02.
6.02 SEVERANCE FROM SERVICE. Upon a Participant's Severance from Service
from the Employer, he may make a written request to the Plan Administrator for
an immediate single sum cash payment equal to the value of his Rollover Account,
Tax-Deferred Account, Voluntary Tax-Deferred Account and, if he is vested
pursuant to Section 6.01(b), his Employer Account. The Participant may also
elect to receive distribution of his account balances in any other form set
forth in Article VII. The value of the accounts shall be determined as of the
Valuation Date coincident with or immediately following the date of Severance
from Service or the receipt by the Plan Administrator of the election to receive
benefits, if later. The value of the accounts may also be determined as of a
Valuation Date selected by the Plan Administrator which shall apply on a uniform
basis for all Participants in the same circumstances.
38
<PAGE>
Notwithstanding the foregoing, if the value of the Participant's aggregate
vested interest in his accounts under the Plan is not more than $3,500 upon his
Severance from Service (or at the time of any prior distribution to him under
the Plan), the Plan Administrator shall make an immediate single sum cash
payment to such Participant in an amount equal to such value whether or not the
Participant requests such distribution.
Payment of such accounts shall be made, or commence to be made, as soon as
practicable after the Trustee receives from the Plan Administrator such written
notice of early distribution as shall be required by the Trustee.
Notwithstanding the foregoing, any distributions made pursuant to this
Section shall be subject to the requirements of Sections 7.02 and 9.05.
6.03 FORFEITURES.
(a) If a Participant's Severance from Service from the Employer occurs
prior to any of the dates referenced in Section 6.01(b), he shall forfeit the
value of his Employer Account as of the Forfeiture Date. The value of such
accounts shall be determined as of such Forfeiture Date and, except as provided
in Article XII hereof, any amounts so forfeited by Participants shall be used to
offset future Employer Matching Contributions under the Plan.
(i) If such a Participant subsequently resumes employment with
the Employer before incurring five (5) consecutive Breaks in Service,
the amount previously forfeited from his Employer Account shall be
restored to such account as soon as administratively practical after
the Participant is reemployed. The Employer shall make an additional
contribution to the Plan
39
<PAGE>
with respect to the Plan Year of such reemployment to the extent
necessary to effect such restoration.
(ii) If such a Participant subsequently resumes employment with
the Employer after incurring five (5) consecutive Breaks in Service,
any amounts previously forfeited shall not be restored.
(b) If a fully vested Participant incurs a Severance from Service
from the
Employer and he subsequently resumes active employment with the Employer prior
to receiving a distribution of his Employer Account, such Participant shall
continue to be fully vested in such account on his date of reemployment.
40
<PAGE>
ARTICLE VII - DISTRIBUTIONS AT RETIREMENT, DEATH OR DISABILITY
--------------------------------------------------------------
7.01 DISTRIBUTIONS AT RETIREMENT. A Participant shall, as of his
retirement on or after his Normal Retirement Date, be entitled to a
distribution of his accounts. The final value of the accounts shall be
determined as of a Valuation Date selected by the Plan Administrator which
shall apply on a uniform basis to all participants in the same circumstances.
A Participant may elect to receive his account balances as a single sum
cash payment, as an annuity, or as a combination of a single sum cash payment
and an annuity; provided, however, that (a) the method of distribution selected
must ensure that payment will not extend beyond the joint lives or joint life
expectancies of the Participant and his designated Beneficiary, (b) the method
of distribution may not be a straight life annuity, (c) the method of
distribution must comply with the minimum distribution incidental benefit
requirements of Section 1.401(a)(9)-2 of the proposed regulations, and (d) any
annuity must meet the requirements of Section 7.02. The following annuity forms
are available under the Plan:
(a) Year Certain Annuity: This form provides the retiring Participant
--------------------
with a monthly retirement benefit for life with the guarantee that a certain
specified number (not to exceed 120) of monthly retirement benefit payments as
elected by the Participant will be paid to either the retired Participant or his
Beneficiary.
If this form is elected and the retired Participant dies prior to the
receipt of the guaranteed monthly payments, the balance of the guaranteed
monthly payments will be paid to the retired Participant's Beneficiary and will
continue until the total of the guaranteed number of monthly payments have been
made to the retired Participant and his Beneficiary.
41
<PAGE>
The first such payment to the Beneficiary shall be due and payable as of the
first day of the month following the retired Participant's death.
In the event there is no designated Beneficiary living at the death of the
retired Participant, the balance of the guaranteed monthly payments which would
otherwise have become payable to the retired Participant's Beneficiary shall be
commuted to a single sum and shall be paid to any one or more of the surviving
members of the retired Participant's relatives in the following order of
preference: spouse, or in equal shares to his children, grandchildren, or
parents, or his estate.
If the Beneficiary of a deceased retired Participant should die prior to
receiving the balance of the guaranteed number of payments, the balance of such
payments which would otherwise have become payable to the retired Participant's
Beneficiary shall be commuted to a single sum and shall be paid to the
Beneficiary's executors or administrators.
(b) Full Cash Refund Annuity: This form provides the retired
------------------------
Participant with a monthly benefit during his lifetime, and further provides
that if the retired Participant should die prior to receiving benefit payments
in a sum equal to the net single premium applied to purchase his benefit, the
excess, if any, of such net single premium over the aggregate amount of benefit
payments previously paid to him shall be paid in a lump sum to his designated
Beneficiary. In the event there is no designated Beneficiary living at the death
of the retired Participant, such payment shall be paid to any one or more of the
surviving members of the retired Participant's relatives in the following order
of preference: spouse, or in equal shares to his children, grandchildren, or
parents, or his estate.
(c) Contingent Annuitant Annuity: This form provides the retired
----------------------------
Participant with a monthly retirement benefit during his lifetime and continues
100%,
42
<PAGE>
66 2/3%, or 50% (as elected by the Participant) of the benefit to a
Contingent Annuitant, if living, after the retired Participant's death. If the
Contingent Annuitant is the spouse of the retired Participant, the retirement
benefit is payable without restriction. If, however, the Contingent Annuitant is
a person other than the spouse of the retired Participant, the benefit payable
to the Contingent Annuitant shall be limited to the extent necessary to comply
with the minimum distribution incidental benefit requirement of Section
1.401(a)(9)-2 of the proposed regulations.
The monthly payments to the Contingent Annuitant shall commence on the
first day of the month following the month in which the retired Participant
dies, if the Contingent Annuitant is then living, and shall cease with the last
payment due for the month in which the Contingent Annuitant's death occurs. If
the Contingent Annuitant dies before the Participant commences to receive
retirement benefits, another Contingent Annuitant may be designated or the
retired Participant may elect another form of benefit payment. If the Contingent
Annuitant predeceases the retired Participant after payments have commenced,
such payments shall cease upon the retired Participant's death.
Notwithstanding the foregoing, if the value of a Participant's aggregate
vested interest in his accounts under the Plan is not more than $3,500 upon his
Early or Normal Retirement Date, or the date he incurs a Disability (whichever
is applicable), or at the time of any prior distribution to him from the Plan,
the Plan Administrator shall make an immediate single cash payment to such
Participant in an amount equal to such value whether or not the Participant or
his spouse consents to such distribution.
43
<PAGE>
7.02 NORMAL FORM OF ANNUITY.
(a) Notwithstanding any provision hereof to the contrary, except as
provided in this Section 7.02, any distribution of benefits under this Plan to a
Participant who elects to receive his benefits in the form of an annuity shall
be made in the Normal Form of Annuity. In the case of a Participant who is
married on his "annuity starting date," the Normal Form of Annuity shall be a
50% Contingent Annuitant Option, with the 50% continuation to be paid to such
Participant's surviving spouse. In the case of a Participant who is not married
on his "annuity starting date," the Normal Form of Annuity shall be the Full
Cash Refund Annuity.
(b) The Normal Form of Annuity required by paragraph (a) of this
Section shall not apply (i) to the extent the Participant elects to receive
distribution of his accounts as a single sum cash payment, (ii) if the value of
the Participant's aggregate vested interest in his accounts under the Plan is
not more than $3,500, or (iii) if the Participant has effectively designated in
writing during the ninety-day period ending on his "annuity starting date" (and
such designation is not revoked during such period) an alternate annuity payment
option under Section 7.01. Such designation shall be effective only if (A) the
Participant's spouse has consented to such designation of an alternate annuity
payment option in a writing which acknowledges the effect of the designation and
which is witnessed by a Plan representative or notary public, or (B) it is
established to the satisfaction of the Plan Administrator that such spousal
consent is unobtainable because there is no spouse, or because the spouse cannot
be located, or because the Participant has been abandoned by the spouse within
the meaning of local law and there is a court order to that effect, or because
of other circumstances prescribed by regulations under Section 417(a)(2) of the
Code. Such a designation may be
44
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revoked, with or without spousal consent, at any time during the 90 day period
ending on his "annuity starting date," in which case the Normal Form of Annuity
shall be payable. Such a designation may not be changed without spousal consent
unless the initial consent of the spouse expressly permits designations by the
Participant without any requirement of further consent by the spouse.
(c) If a Participant elects to receive his benefits in the form of an
annuity, the Plan Administrator shall no less than 30 days and no more then 90
days prior to the Participant's annuity starting date provide the Participant
with a written explanation of: (i) the terms and conditions of the Normal Form
of Annuity; (ii) the Participant's right to make, and the effect of, an election
to waive the Normal Form of Annuity; (iii) the right of the Participant's
Spouse; and (iv) the right to make, and the effect of, a revocation of a
previous election to waive the Normal Form of Annuity.
(d) For purposes of this Section 7.02, the term "annuity starting
date" means (i) the first day of the first period for which an amount is payable
as an annuity, or (ii) in the case of a benefit not payable in the form of an
annuity, the first day on which all events have occurred which entitle the
Participant to such benefit.
7.03 DISTRIBUTIONS UPON INCURRING DISABILITY. If a Participant should incur
a Disability prior to his Normal Retirement Date, he may elect by written notice
to the Plan Administrator to receive a distribution in accordance with Sections
7.01 and 7.02 at any time after the date he incurs the Disability and prior to
his Normal Retirement Date (provided he is then living). If no such election is
filed, distribution will be made in accordance with Section 7.01 as of the
disabled Participant's Normal Retirement Date.
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Distribution of such disabled Participant's accounts shall be made under any
method of distribution set forth in Section 7.01 selected by the disabled
Participant.
7.04 DISTRIBUTIONS AT DEATH.
(a) Upon the death of any Participant who has a surviving spouse, the
Plan Administrator shall direct the Trustee to distribute the full amount
standing to the credit of such Participant's accounts (or the undistributed
vested balance of his accounts in the case of a terminated or retired
Participant) to the Participant's surviving spouse, unless the exception
provided by paragraph (b) of this Section 7.04 applies.
(b) The requirement of subsection (a) of this Section 7.04 shall not
apply if (i) the Participant elects to designate a Beneficiary other than his
spouse and his spouse has consented to such designation of a non-spouse
Beneficiary in a writing which acknowledges the effect of the designation and
which is witnessed by a Plan representative or notary public, or (ii) if it is
established to the satisfaction of the Plan Administrator that the consent of
the surviving spouse could not have been obtained because there is no spouse,
because the spouse cannot be located, or because the Participant has been
abandoned by the spouse within the meaning of local law and there is a court
order to that effect, or because of other circumstances prescribed by
regulations under Section 417(a)(2) of the Code.
A former spouse shall be treated as a surviving spouse to the extent
benefits must be paid to such former spouse upon the Participant's death
pursuant to a qualified domestic relations order (as defined in Section 414(p)
of the Code), except that no consent shall be required from such former spouse
with respect to the designation of a Beneficiary to receive benefits not subject
to said order.
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(c) If, and only if, a Participant is permitted under this Section
7.04 to designate a Beneficiary other than his surviving spouse, then such
Participant's accounts shall be distributed in accordance with this subsection
(c) of this Section 7.04. Such a Participant shall have the right to designate
one or more Beneficiaries, including contingent Beneficiaries, entitled to
receive the amount payable in behalf of such Participant under the provisions of
this Plan in the event of death. Such designation shall be made in writing in
such manner as the Plan Administrator shall determine. A Participant may change
such designation from time to time, and may revoke such designation, provided,
however, that any subsequent designation must meet the requirements of this
Section 7.04. Upon the death of any Participant, the Plan Administrator shall
direct the Trustee to distribute, to such Participant's Beneficiaries the full
amount standing to the credit of the Participant's accounts (or the
undistributed vested balance of his accounts in the case of a terminated or
retired Participant) in a single sum as soon as administratively practicable
after the Valuation Date coincident with or next following the date the
Participant's death is reported to the Plan Administrator. If a Participant dies
without having designated a Beneficiary, or if none of the designated
Beneficiaries survive the Participant, or if the Plan Administrator is in doubt
as to the effective status of a Beneficiary designation, payment of any sum that
would otherwise have been payable to such Beneficiary will be made to any one or
more of the surviving members of the deceased Participant's relatives in the
following order of preference: widow or widower, or in equal shares to his
children, grandchildren, or parents, or his estate.
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ARTICLE VIII - ADMINISTRATION
-----------------------------
8.01 ALLOCATION OF RESPONSIBILITY. The Board of Directors of the Plan
Sponsor and the Plan Administrator shall have only those specific powers,
duties, responsibilities and obligations as are specifically given them under
this Plan and the trust agreement. In general, the Board of Directors of the
Plan Sponsor shall have the sole responsibility for the appointment of the
Retirement Committee. The Board of Directors of the Plan Sponsor and the Plan
Administrator shall each warrant that any directions given, information
furnished or action taken shall be in accordance with the provisions of this
Plan authorizing or providing for such direction, information or action.
8.02 APPOINTMENT OF PLAN ADMINISTRATOR. The Plan shall be
administered by a Retirement Committee which shall consist of three or more
members. Such members shall be appointed by and serve at the pleasure of the
Board of Directors of the Plan Sponsor. All usual and reasonable expenses of the
Committee shall be paid by the Plan Sponsor. Any members of the Committee who
are employees of the Employer or the Plan Sponsor shall not receive compensation
with respect to their services on the Committee. Any such Employee member shall
not be precluded from participating in this Plan, but shall not be permitted to
make any decision or take any action with respect to his own participation in
the Plan.
Any action taken by the Committee shall be by majority rule of the members
of the Committee. The Committee may delegate to any one of their number
authority to sign documents on behalf of the Committee, or to perform
ministerial acts, but no person to whom such authority is delegated shall
perform any act involving the exercise of discretion without first obtaining the
approval of the Committee. Any member of the Committee may
48
<PAGE>
resign at any time by providing the Board of Directors of the Plan Sponsor with
written notice of his intent to resign. Such Board of Directors may remove any
member of the Committee at any time by providing such member with written
notification of his removal.
8.03 CLAIMS PROCEDURE. The Plan Administrator shall make all determinations
as to the right of any person to a benefit. Any denial by the Plan Administrator
of the claim for benefits to a Participant, former Participant or Beneficiary
under the Plan shall be stated in writing by it and delivered or mailed to the
Participant, former Participant or Beneficiary; and such notice shall set forth
the specific reasons for the denial, written to the best of its ability in a
manner that may be understood without legal or actuarial counsel.
Any person whose claim has been denied shall have the opportunity to appeal
such denial by written notification to the Plan Administrator within 60 days
following receipt of notice of denial. Within 60 days following receipt of such
written appeal, the Plan Administrator shall transmit written notification of
its decision regarding the appeal to said person, provided, however, that if the
Plan Administrator determines a hearing shall be necessary, such 60 day period
shall be extended to 120 days.
8.04 RECORDS AND REPORTS. The Plan Administrator shall exercise such
authority and responsibility as it deems appropriate in order to comply with
ERISA, and governmental regulations issued thereunder relating to records of
Participant's service, retirement benefits and the percentage of such benefits
which are nonforfeitable under the Plan; notifications to Participants; periodic
registration with the Internal Revenue Service; and annual reports to the
Internal Revenue Service and/or the Department of Labor.
49
<PAGE>
8.05 POWERS AND DUTIES OF THE PLAN ADMINISTRATOR. The Plan
Administrator shall have such duties and powers as may be necessary to discharge
its duties hereunder, including, but not limited to the following:
(a) To construe and interpret the Plan, decide all questions of
eligibility and determine the amount and time of payment of any benefits
hereunder;
(b) To prescribe procedures to be followed by Participants, former
Participants or Beneficiaries in filing applications for benefits;
(c) To prepare and distribute, in such manner as it determines to be
appropriate, information explaining the Plan;
(d) To receive from the appropriate sources such information as
shall be necessary for the proper administration of the Plan;
(e) To receive, review and keep on file (as it deems convenient or
proper) reports of the financial condition, and of the receipts and
disbursements, of the assets from the Insurance Company;
(f) To appoint or employ individuals to assist in the administration
of the Plan and any other agents it deems advisable, including legal counsel;
(g) To direct the Trustee to pay reasonable expenses of the Plan and
Trust out of Trust assets.
(h) To select appropriate investment vehicles, including fixed
interest contracts, to constitute the Investment Funds available under the Trust
for the investment of plan assets, to permit Participants to direct investment
of their account balances in the Investment Funds, and to prescribe rules and
procedures relating to such directed investment; and
50
<PAGE>
(i) To enter into any and all contracts, fixed interest contracts, and
agreements for carrying out the terms of the Plan and the administration
thereof, to select the Investment Funds available under the Trust and to do all
acts as the Plan Administrator, in its sole discretion, may deem necessary or
appropriate, and all such contracts, agreements, and acts shall be binding and
conclusive on the parties hereto and on the Employees involved.
Except as provided by Section 10.02, the Plan Administrator shall have no
power to add to, subtract from or modify any of the terms of the Plan, or to
change or add to any benefits provided by the Plan, or to waive or fail to apply
any requirements of eligibility for a benefit under the Plan.
8.06 RULES AND DECISIONS. The Plan Administrator may adopt such rules as it
deems necessary, desirable, or appropriate. All rules and decisions of the Plan
Administrator shall be uniformly and consistently applied to all Participants in
similar circumstances. When making a determination or calculation, the Plan
Administrator shall be entitled to rely upon information furnished by a
Participant or Beneficiary, the legal counsel of the Plan Sponsor, the insurance
company, or the Trustee.
8.07 AUTHORIZATION OF BENEFIT PAYMENTS. The Plan Administrator shall
issue directions to the appropriate party, including the Trustee, concerning the
payment of all benefits which are to be paid from the assets of the Plan, and
warrants that all such directions are in accordance with the provisions of this
Plan.
8.08 APPLICATION AND FORMS FOR BENEFITS. The Plan Administrator may
require a Participant or Beneficiary to complete and file with it an application
for
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benefits and all other forms approved by it and furnish all pertinent
information requested by it, including the Participant's or Beneficiary's
current mailing address.
8.09 FACILITY OF PAYMENT. Whenever, in the Plan Administrator's opinion, a
person entitled to receive any benefit hereunder is under a legal disability or
is incapacitated in any way so as to be unable to manage his financial affairs,
the Plan Administrator may cause payments otherwise payable to such person to be
made to such person's legal representative for his benefit. Any payment of
benefits in accordance with the provisions of this Section 8.09 shall be a
complete discharge of any liability for the making of such payment under the
provisions of this Plan. In the event that a person entitled to receive any
benefit hereunder cannot be located after reasonable efforts of the Plan
Administrator, such person's benefit shall be forfeited, and shall be reapplied
in such a way as to offset future Employer Matching Contributions under this
Plan; provided, however, that if such person subsequently files a claim for
benefit with the Plan Administrator, such benefit shall be restored (by a
special Employer contribution) to the value previously forfeited.
8.10 COMPENSATION OF PLAN ADMINISTRATOR AND PLAN EXPENSES.
The Plan Administrator shall serve without compensation for services as such,
but all expenses of the Plan Administrator in administering the Plan shall
constitute a charge upon the Trust, unless paid by the Employer in its sole
discretion. Such expenses shall include any expenses incident to the functioning
of the Plan and Trust, including, but not limited to, attorneys' fees, fidelity
bonding, accounting and clerical charges, trustee fees, plan investment costs,
recordkeeping fees, consultants' fees and other costs of administering the Plan
and Trust.
52
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8.11 INDEMNIFICATION. The Plan Sponsor shall indemnify and hold harmless
each member of the Committee from and against any and all claims, losses,
damages, expenses (including reasonable attorneys' fees approved by the Plan
Sponsor) and liability (including any reasonable amounts paid in settlement with
the Plan Sponsor's approval) arising from any act or omission of such member,
except when the same is judicially determined to be due to the willful
misconduct of such member.
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ARTICLE IX - MISCELLANEOUS
--------------------------
9.01 NONGUARANTEE OF EMPLOYMENT. Nothing contained in this Plan shall be
construed as a contract of employment between the Employer and any Employee, or
as a right of any Employee to be continued in the employment of the Employer, or
as a limitation of the right of the Employer to discharge any of its Employees,
with or without cause.
9.02 RIGHTS OF EMPLOYEES AND BENEFICIARIES. No Employee or
Beneficiary shall have any right to or interest in any assets of the Plan upon
termination of his employment or otherwise, except as provided from time to time
under this Plan, and then only to the extent of the benefits payable under the
Plan to such Employee or Beneficiary out of such assets. All payments of
benefits as provided for in this Plan shall be made solely out of Plan assets.
9.03 NONALIENATION OF BENEFITS. Benefits payable under this Plan shall not
be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, charge, garnishment, execution, or levy of any
kind, either voluntary or involuntary, including any such liability which is for
alimony or other payments for the support of a spouse or former spouse, or for
any other relative of the Employee, prior to actually being received by the
person entitled to the benefit under the terms of the Plan; and any attempt to
anticipate, alienate, sell, transfer, assign, pledge, encumber, charge or
otherwise dispose of any right to benefits payable hereunder shall be void; and
the Plan assets shall not in any manner be liable for, or subject to, the debts,
contracts, liabilities, engagements or torts of any person entitled to benefits
hereunder; provided, however, that nothing herein shall restrict or prohibit the
creation, assignment, or recognition of a right to
54
<PAGE>
any benefit payable with respect to a Participant pursuant to a "qualified
domestic relations order" (within the meaning of Sections 401(a)(13)(B) and
414(p) of the Code).
9.04 DISCONTINUANCE OF EMPLOYER CONTRIBUTIONS. In the event of
permanent discontinuance of contributions to the Plan by the Employer, the
accounts of all Participants shall, as of the date of such discontinuance,
become fully vested.
9.05 REVERSION TO EMPLOYER. The Employer has no beneficial interest in the
Plan assets and no part of the Plan assets shall ever revert or be repaid to the
Employer, directly or indirectly, except that:
(a) if a contribution is made by the Employer to the Plan by mistake
of fact, such contribution may be returned to the Employer within one (1) year
from the date the contribution is made, or
(b) if the Employer is denied a Federal income tax deduction with
respect to all or any portion of its contribution to the Plan, such contribution
(to the extent disallowed) may be returned to the Employer within one (1) year
from the date of disallowance, it being the intent that all contributions to the
Plan by the Employer shall be so deductible.
9.06 COMMENCEMENT AND TIMING OF DISTRIBUTIONS.
(a) Any distribution to be made under this Plan to any Participant
shall be made no later than the 60th day following the close of the Plan Year in
which the Participant reaches his Normal Retirement Date or terminates
employment, whichever is later.
(b) Any distribution to be made under this Plan to a Participant shall
begin no later than the April 1 following the close of the calendar year in
which the Participant attains age 70-1/2 (the "Required Beginning Date");
55
<PAGE>
(c) Effective with respect to Plan Years beginning after December 31,
1988, any distribution to be made under this Plan to a Participant shall begin
no later than the April 1 following the close of the calendar year in which such
Participant attains age 70-1/2; provided, however, that the foregoing required
distribution shall not apply to a Participant who attained age 70-1/2 before
January 1, 1988 and who is not a 5% owner during the Plan Year ending with or
within the calendar year in which he attained age 66-1/2, or any subsequent Plan
Year. Distribution to such Participant shall begin no later than April 1
following the close of the calendar year in which such Participant terminates
his employment.
(d) For purposes of this Section, a "5% owner" is defined as an owner
of either (i) more than five percent (5%) of the outstanding stock of the Plan
Sponsor or an Affiliated Company, or (ii) stock possessing more than five
percent (5%) of the total combined voting power of all the stock of the Plan
Sponsor or of an Affiliated Company. For purposes of this definition, an
individual shall be deemed to own stock owned by others, as provided in Section
318 of the Code.
(e) If the value of a terminated Participant's aggregate vested
interest in his accounts exceeds $3,500, distribution may not be made to such
Participant unless such Participant and his spouse (if the Participant is
married as of the date distribution of benefits is to be made or commenced)
elect to receive his distribution in writing during the 90-day period ending on
the annuity starting date; provided, further, that spousal consent shall not be
required with respect to the commencement of benefits from a Participant's
accounts (i) to the extent distribution is made in a single sum cash payment or
(ii) if the distribution commences prior to the Participant's Normal Retirement
Date in the Normal Form of
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Annuity pursuant to Section 7.02. The Participant may also choose to delay the
receipt of his distribution until his Required Beginning Date. The value of the
Participant's accounts shall be determined as of a Valuation Date selected by
the Plan Administrator which shall apply on a uniform basis to all Participants
in the same circumstances.
(f) Notwithstanding any other provision of the Plan, a Participant's
Tax-Deferred Account and Voluntary Tax-Deferred Account shall not be
distributable prior to his separation from service, Disability, death or
attainment of age 59-1/2, except (i) in cases of hardship as provided in Section
5.02 of the Plan, (ii) upon termination of the Plan without establishment or
maintenance of another defined contribution plan (other than an employee stock
ownership plan as defined in Section 4975(e)(7) of the Code), (iii) upon
disposition by the Employer or an Affiliated Company of substantially all of the
assets used by such corporation in a trade or business, in the case of a
Participant who continues employment with the corporation acquiring such assets,
or (iv) disposition by the Employer or an Affiliated Company of such
corporation's interest in a subsidiary, with respect to a Participant who
continues employment with such subsidiary. No distribution shall be authorized
by clauses (ii), (iii), or (iv) above, unless the distribution qualifies as a
"lump sum distribution" within the meaning of Section 401(k)(10)(B) of the Code.
(g) In the event a Participant dies before his Required Beginning
Date, his entire interest shall be paid to his Beneficiary in a lump sum no
later than December 31 of the calendar year containing the fifth (5th)
anniversary of the Participant's death; provided, however, that if the
Beneficiary is the Participant's spouse, the spouse may elect an annuity form of
payment which shall commence no later than December 31 of the calendar year in
which the Participant would have attained age 70 1/2.
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If a Participant dies on or after his Required Beginning Date, the
Participant's remaining interest in the Plan shall be distributed at least as
rapidly as under the method of distribution being used as of the date of death.
(h) If, and to the extent that, any portion of a Participant's vested
account balances is payable to a former spouse or dependent pursuant to a
qualified domestic relations order within the meaning of Section 401(a)(13)(B)
and 414(p) of the Code, the provisions of said order shall govern the
distribution thereof. Such an order may provide for payments to a former spouse
or dependent even though the Participant is still employed by the Employer or is
otherwise not eligible for the distribution of benefits under the Plan.
9.07 JURISDICTION. This Plan shall be construed in accordance with the laws
of the jurisdiction of the State of New Hampshire except to the extent to which
said laws are superseded by Federal law.
9.08 LEASED EMPLOYEES. A "leased employee" shall receive credit for Hours
of Service and years of Service for the entire period during which he is a
leased employee of the Employer or an Affiliated Company as if he were an
Employee of the Employer or Affiliated Company; provided, however, that a leased
employee shall not be an Eligible Employee for purposes of participation in the
Plan as long as he remains a leased employee. For purpose of this Section 9.07,
the term "leased employee" means any person (a) who is not an Employee of the
Employer or any Affiliated Company and (b) who pursuant to an agreement between
the Employer and any other person (a "leasing organization") has performed
services for the Employer or Affiliated Company of a type historically performed
by employees in the business field of the Employer on a substantially full-time
basis for a period of at least one (1) year. Notwithstanding the foregoing, if
leased employees constitute
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less than 20% of the Employer's or Affiliated Company's nonhighly compensated
work force within the meaning of Section 414(n)(5) of the Code, a person who is
covered by a money purchase pension plan maintained by the leasing organization
which provides a nonintegrated employer contribution rate of at least ten
percent (10%) of compensation, immediate participation and full and immediate
vesting shall not be considered a "leased employee."
9.09 EFFECTIVE DATE. The effective date of this amendment and restatement
shall be generally July 1, 1993, except for the following provisions:
(a) Participants may make Voluntary Tax-Deferred Contributions
pursuant to Section 3.06 only on or after January 1, 1994;
(b) The ability of Participants to make daily changes in their
investment elections and daily transfers of assets, as set forth in Section
3.11, shall be effective October 1, 1993;
(c) The ability of Participants to withdraw amounts from their
Voluntary Tax-Deferred Accounts in the event of an immediate and heavy financial
need pursuant to Section 5.01 shall be effective January 1, 1994;
(d) The ability of Participants to receive loans from the Plan
pursuant to Section 5.05 shall be effective October 1, 1993.
(e) The change in the definition of Forfeiture Date shall be effective
January 1, 1993.
(f) The direct rollover provisions of Article XV shall be effective
January 1, 1993.
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ARTICLE X - AMENDMENTS AND ACTION BY PLAN SPONSOR
-------------------------------------------------
10.01 AMENDMENTS. The Plan Sponsor reserves the right to make from time to
time any amendment or amendments to this Plan which do not cause any part of the
assets of the Plan to be used for, or diverted to, any purpose other than the
exclusive benefit of Participants or their Beneficiaries; provided, however,
that the Plan Sponsor may make any amendment it determines necessary or
desirable, with or without retroactive effect, to comply with the requirements
of the Code or of any other pertinent provision of Federal or State law, or any
regulation or ruling of any duly constituted authority in connection therewith.
10.02 ACTION BY EMPLOYER. Any action by the Plan Sponsor under this Plan
may be made by resolution of its Board of Directors, or by any person or persons
duly authorized by resolution of said Board to take such action. The Plan
Sponsor hereunder shall have and exercise all the rights, powers and duties
thereof with respect to the Plan and the assets of the Plan. The Plan Sponsor
hereby delegates all such rights and powers including amendment or termination
of the Plan, to the Plan Administrator, acting alone, except as such Plan
Sponsor may exercise the same for itself.
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ARTICLE XI - SUCCESSOR PLAN SPONSOR AND
---------------------------------------
MERGER OR CONSOLIDATION OF PLANS
--------------------------------
11.01 SUCCESSOR PLAN SPONSOR. In the event of the dissolution, merger,
consolidation or reorganization of the Plan Sponsor, provision may be made by
which the Plan will be continued by the successor; and, in that event, such
successor shall be substituted for the Plan Sponsor under the Plan. The
substitution of the successor shall constitute an assumption of Plan liabilities
by the successor and the successor shall have all the powers, duties and
responsibilities of the Employer under the Plan.
11.02 PLAN ASSETS. In the event of any merger or consolidation of the Plan
with, or transfer in whole or in part of the assets and liabilities of the Plan
to, another plan of deferred compensation maintained or to be established for
the benefit of all or some of the Participants of this Plan, the assets of this
Plan applicable to such Participants shall be transferred to the other plan only
if
(a) each Participant would (if either this Plan or the other plan then
terminated) 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
this Plan had then terminated);
(b) resolutions of the Board of Directors of the Employer under this
Plan, or of any new or successor employer of the affected Participants, shall
authorize such transfer of assets; and in the case of the new or successor
employer of the affected Participants, its resolutions shall include an
assumption of liabilities with respect to such Participant's inclusion in the
new employer's plan; and
(c) such other plan is qualified under Section 401(a) of the Code.
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ARTICLE XII - PLAN TERMINATION
------------------------------
12.01 RIGHT TO TERMINATE. In accordance with the procedures set forth in
this Article, the Plan Sponsor may terminate (including the permanent
discontinuance of contributions to the Plan by the Employer) the Plan at any
time. In the event of the dissolution, merger, consolidation or reorganization
of the Plan Sponsor, the Plan shall terminate and, subject to 9.05(f), the Plan
assets shall be liquidated unless the Plan is continued by a successor to the
Plan Sponsor in accordance with Section 11.01.
12.02 PARTIAL TERMINATION. Upon termination of the Plan with respect to a
group of Participants which constitutes a partial termination of the Plan, the
Plan Administrator shall allocate and segregate for the benefit of the Employees
then or theretofore employed by the Employer with respect to which the Plan is
being terminated the proportionate interest of such Participants in the Plan
assets. The assets so allocated and segregated shall be used by the Plan
Administrator to pay benefits to or on behalf of Participants in accordance with
Section 11.03.
12.03 LIQUIDATION OF THE PLAN. Upon termination or partial termination of
the Plan, the accounts of all Participants affected thereby shall become fully
vested, and the Plan Administrator shall, subject to the provisions of the
immediately following paragraph, cause the assets remaining in the Plan,
including any forfeitures which shall not have been applied to reduce Employer
Matching Contributions hereunder, to be allocated to the remaining Participants
and Beneficiaries in proportion to their respective Employer Account balances.
In the event that any administrative expenses assessed under this Plan are
due and unpaid as of such Plan termination date, the payment of such expenses
shall be satisfied (a)
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by deducting the required amount from any then unallocated Plan assets,
and/or, if such Plan assets are insufficient to pay the full required
amount, (b) by deducting a pro-rata share of the amount remaining
to be paid from each Participant's Employer Account (if necessary).
12.04 MANNER OF DISTRIBUTION. Upon termination of the Plan, the Plan
Administrator shall direct the Trustee to make distributions to the Participant
or other person or persons entitled thereto in accordance with the provisions of
Article VI, provided, however, that if the Plan is terminated without the
establishment of a successor plan, the Plan Administrator may proceed with such
distribution at any time after such termination but prior to the time the
Participants would otherwise become entitled thereto under the Plan.
Distribution may be made in whole or in part, in cash or in nontransferable
annuity contracts.
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ARTICLE XIII - DISCHARGE OF DUTIES BY FIDUCIARIES
-------------------------------------------------
The Board of Directors of the Plan Sponsor and the Plan Administrator and
any other person who, by reason of his involvement in and under this Plan, shall
be deemed to be a fiduciary within the meaning of Title I, Section 3(21) of
ERISA, shall discharge their Plan related duties and responsibilities solely in
the interest of the Participants and their Beneficiaries and with the care,
skill, prudence and diligence under the circumstances then prevailing that a
prudent man acting in like capacity and familiar with such matters would use in
the conduct of an enterprise of a like character and with like aims.
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ARTICLE XIV - TOP-HEAVY PROVISIONS
----------------------------------
14.01 GENERAL RULE. For any Plan Year for which this Plan is a "top-heavy
plan" as defined in Section 14.06 below, any other provisions of this Plan to
the contrary notwithstanding, this Plan shall be subject to the following
provisions:
(1) The vesting provisions set by Section 14.02.
(2) The minimum benefit provisions set by Section 14.03.
(3) The limitation on compensation set by Section 14.04.
(4) The adjustment to the combined plan limit set by Section 14.05.
14.02 VESTING PROVISIONS. Each Participant who has completed the number of
years of Service specified in the following table shall have a nonforfeitable
right to the percentage of his Employer Account under this Plan correspondingly
specified in the following table:
Years of Percentage of
Service Nonforfeitable Benefit
------- ----------------------
2 20%
3 40%
4 60%
5 100%
14.03 MINIMUM BENEFIT PROVISIONS. Each Participant who is a non-key
employee (as defined in Section 14.08 below) shall be entitled to an Employer
contribution for such Plan Year that shall be not less than three percent (3%)
of the Participant's compensation (as determined under Section 415 of the Code)
for the Plan Year. Tax-Deferred Contributions and Employer Matching
Contributions may not be used to satisfy the minimum benefit requirement of this
Section 14.03.
65
<PAGE>
14.04 LIMITATION ON COMPENSATION. For Plan Years beginning on or before
December 31, 1993, annual earnings taken into account under this Article XIV and
under Article IV for purposes of determining each Participant's share of
Employer contributions (and forfeitures) under the Plan shall not exceed the
first $200,000. For Plan Years beginning on or after January 1, 1994, such
annual earnings shall not exceed $150,000. Such amounts shall be adjusted
automatically for each Plan Year to the amount prescribed by the Secretary of
the Treasury or his delegate pursuant to regulations for the calendar year in
which such Plan Year commences. Notwithstanding the foregoing, for the initial
Plan Year commencing July 1, 1988 and ending December 31, 1988, the annual
earnings taken into account under this Section 14.04 shall be $100,000.
14.05 ADJUSTMENT TO COMBINED PLAN LIMIT. In determining the defined benefit
plan fraction and the defined contribution plan fraction under Section 4.03
above, the number 1.0 shall be substituted for the number 1.25 each place it
appears in said Section.
14.06 TOP-HEAVY PLAN DEFINITION. This Plan shall be a "top-heavy plan" for
any Plan Year if, as of the determination date (as defined in subparagraph (a)
below), the present value of the accounts under the Plan for Participants
(including former Participants) who are "key employees" (as defined in Section
13.07 below) exceeds 60 percent of the sum of the accounts under the Plan for
all Participants (excluding the accounts of former "key employees" and of
employees who have not performed any services for the Employer at any time
during the five-year period ending on the determination date) or if this Plan is
required to be in an aggregation group (as defined in subparagraph (b) below)
which for such Plan Year is a top-heavy group (as defined in subparagraph (c)
below).
66
<PAGE>
(a) "Determination date" means for any Plan Year the last day of the
immediately preceding Plan Year.
(b) "Aggregation group" means the group of plans, if any, that
includes the group of plans that are required to be aggregated and, if the Plan
Administrator so elects, the group of plans that are permitted to be aggregated.
(i) The group of plans that are required to be aggregated (the
"required aggregation group") includes:
(A) each plan (including each terminated plan) of the
Employer and of Affiliated Companies in which a "key employee" is
a Participant, and
(B) each other plan (including each terminated plan) of the
Employer and of Affiliated Companies which enables a plan in
which a Key Employee is a Participant to meet the requirements of
either Section 401(a)(4) or Section 410 of the Code.
(ii) The plans that are permitted to be aggregated (the
"permissive aggregation group") includes any plan that is not part of
the "required aggregation group" that the Plan Administrator certifies
as constituting a plan within the "permissive aggregation group." Such
plans may be added to the "permissive aggregation group" only if,
after the addition, the "aggregation group" as a whole continues to
meet the requirements of both Section 401(a)(4) and Section 410 of the
Code.
(c) "Top-heavy group" means the "aggregation group," if as of the
applicable determination date, the sum of the present value of the accrued
benefits for "key
67
<PAGE>
employees" under all defined benefit plans included in the "aggregation group"
plus the aggregate of the accounts of "key employees" under all defined
contribution plans included in the "aggregation group" exceeds 60 percent of the
sum of the present value of the accrued benefits for all employees under all
such defined benefit plans plus the aggregate accounts for all employees under
such defined contribution plans (excluding the accrued benefit and accounts of
former "key employees" and of employees who have not performed any services for
the Employer at any time during the five-year period ending on the determination
date.)
(d) In determining whether this Plan constitutes a "top-heavy plan,"
the Plan Administrator shall follow the rules set forth in Section 416 of the
Code and regulations pertaining thereto.
14.07 KEY EMPLOYEE. The term "key employee" means any Participant (and any
Beneficiary of a Participant) under this Plan who is a "key employee" as
determined in accordance with Section 416(i)(1) of the Code.
14.08 NON-KEY EMPLOYEE. The term "non-key employee" means any Employee
(and any beneficiary of an employee) who is a "non-key employee" as determined
in accordance with Section 416(i)(2) of the Code.
14.09 CHANGE FROM TOP-HEAVY STATUS. In the event the Plan should
become a "top-heavy plan" for a Plan Year and subsequently revert to a plan
which is not top-heavy, subparagraphs (a) and (b) below shall apply:
(a) The change from a "top-heavy plan" to a plan which is not
top-heavy shall not reduce a Participant's nonforfeitable right to any amount
previously credited to his Employer Account under the Plan, and any Participant
who has completed three (3) or more years of Service at the time the Plan
reverts to a plan which is not top-heavy shall continue
68
<PAGE>
to have his nonforfeitable right to benefits under the Plan determined in
accordance with Section 14.02 above.
(b) The change from a "top-heavy plan" to a plan which is not
top-heavy shall not reduce a Participant's account balances.
69
<PAGE>
ARTICLE XV - DIRECT ROLLOVERS
-----------------------------
15.01 APPLICATION OF THIS ARTICLE. This Article applies to distributions
made on or after January 1, 1993. Notwithstanding any provision of the Plan to
the contrary that would otherwise limit a distributee's election under this
Article, a distributee may elect, at the time and in the manner prescribed by
the Committee, to have any portion of an Eligible Rollover Distribution from the
Plan paid directly to an Eligible Retirement Plan specified by the distributee
in a Direct Rollover.
15.02 DEFINITIONS. Whenever used in this Article or elsewhere in the
Plan, the following words shall have the following meanings:
(a) Eligible Rollover Distribution. An Eligible Rollover Distribution
------------------------------
is any distribution of all or any portion of the balance to the credit of the
distributee, except that an eligible rollover distribution does not include: any
distribution that is one of a series of substantially equal periodic payments
(not less frequently than annually) made for the life (or life expectancy) of
the distributee or the joint lives (or joint life expectancies) of the
distributee and the distributee's designated beneficiary, or for a specified
period of ten years or more; any distribution to the extent such distribution is
required under Section 401(a)(9) of the Code; and the portion of any
distribution that is not includible in gross income (determined without regard
to the exclusion for net unrealized appreciation with respect to employer
securities).
(b) Eligible Retirement Plan. An Eligible Retirement Plan is an
------------------------
individual retirement account described in Section 408(a) of the Code, an
individual retirement annuity described in Section 408(b) of the Code, an
annuity plan described in Section 403(a) of the Code, or a qualified trust
described in Section 401(a) of the Code, that accepts the
70
<PAGE>
distributee's Eligible Rollover Distribution. However, in the case of an
Eligible Rollover Distribution to the surviving spouse, an Eligible Retirement
Plan is an individual retirement account or individual retirement annuity.
(c) Distributee. A distributee includes an Employee or former
-----------
Employee. In addition, the Employee's or former Employee's surviving spouse and
the Employee's or former Employee's spouse or former spouse who is the alternate
payee under a qualified domestic relations order, as defined in Section 414(p)
of the Code, are distributees with regard to the interest of the spouse or
former spouse.
(d) Direct Rollover. A Direct Rollover is a payment by the Plan to the
---------------
Eligible Retirement Plan specified by the distributee. IN WITNESS THEREFORE,
this document has been signed and sealed by an authorized member of the
Retirement Committee this 26 day of August, 1994.
-- ------
RETIREMENT COMMITTEE UNDER
THE ARMIN PLASTICS - DIVISION OF
TYCO INTERNATIONAL LTD.
RETIREMENT SAVINGS AND
INVESTMENT PLAN FOR CERTAIN
NON-UNION HOURLY EMPLOYEES
By /s/ John A. Helfrich
--------------------------
71
<PAGE>
SCHEDULE A
----------
Non-union hourly paid Employees employed at the following locations shall
be eligible to participate in the Plan upon meeting the age and service
requirements set forth in Article II.
Oklahoma New Jersey
-------- ----------
Armin Plastics Tulsa Armin Poly Version
Armin Plastics Pryor Armin Poly Film
Armin Poly-Version Armin Poly Bag
Armin Headquarters
36535.b1
12/8/93
72
FIRST AMENDMENT TO
ARMIN-PLASTICS DIVISION OF TYCO INTERNATIONAL LTD
RETIREMENT SAVINGS AND INVESTMENT PLAN FOR
CERTAIN NON-UNION HOURLY EMPLOYEES
A. The Armin Plastics Division of Tyco International Ltd. Retirement Savings
and Investment Plan For Certain Non-Union Hourly Employees established as of
July 1, 1988, as amended and restated as of July 1, 1993, is further amended as
follows:
1. Section 1.21 is hereby amended by deleting said Section in its
entirety and substituting the following at the end thereof:
"1.21 "Highly Compensated Employee" shall mean:
---------------------------
(a) any Employee who was, at any time in the look-back year or
determination year, a 5% owner;
(b) any Employee who, in the look-back year:
(i) received in Compensation more than $75,000 (as adjusted by
the Secretary of the Treasury to reflect rises in the cost
of living in accordance with Code Section 415(d)),
(ii) was an officer and received in Compensation more than 50% of
the dollar limitation in effect for such year under Code
Section 415(b)(1)(A); or
(iii) received in Compensation more than $50,000 (as adjusted
by the Secretary of the Treasury to reflect rises in
the cost of living in accordance with Code Section
415(d)) and was among the top 20% of Employees when
ranked on the basis of Compensation paid during such
year.
For purposes of calculating the top 20% of Employees when ranked
on the basis of Compensation paid during the look-back year,
there shall be excluded from the total number of Employees: (A)
Employees with less than six months of Service, (B) Employees who
normally work less than 17-1/2 hours per week, (C) Employees who
normally work less than six months per year, (D) except as
provided in Treasury Regulations, Employees covered by a
collective bargaining agreement, and (E) Employees
<PAGE>
who are nonresident aliens and who receive no earned income from
the Employer that constitutes income from sources within the
United States;
(c) any Employee not described in paragraph (b) above but who is
described in clause (i), (ii) or (iii) of paragraph (b) if the
term "determination year" is substituted for the term "look-back
year," and the Employee is among the 100 Employees who received
the most compensation from the Employer during the determination
year; and
(d) any former Employee who has separated from Service but who was a
Highly Compensated Employee as described in paragraph (a), (b) or
(c) above when he separated from Service or at any time after he
attained age 55.
For purposes of this Section, "Compensation" shall mean the amount paid
during the look-back year or determination year, whichever is applicable,
by the Employer or an Affiliated Company to the Employee for services
rendered (regardless of whether the individual was a Participant at the
time) as reportable to the Federal Government for the purpose of
withholding federal income taxes and increased by any amount to which Code
Sections 125, 402(e)(3), 402(h)(1)(B) or 403(b) apply. Also for purposes of
this Section, no more than 50 Employees or, if lesser, the greater of three
Employees or 10% of Employees shall be treated as officers; however, if no
officer has compensation in excess of the applicable stated dollar amount
above in any year, the officer with the highest Compensation shall be
treated as described in paragraph (b) or (c), as applicable.
For this purpose, the determination year shall be the Plan Year. The
look-back year shall be the 12-month period immediately preceding the
determination year. The Committee may elect to make the look-back year
calculation for a determination on the basis of the calendar year ending
with or within the applicable determination year, as prescribed by Section
414(q) of the Code and the regulations issued thereunder.
For the purpose of this Section 1.21, the Employer and all Affiliated
Companies shall be treated as a single employer."
2. Article III is hereby amended by adding the following Section 3.12
at the end thereof:
<PAGE>
"3.12 VALUATION AND ALLOCATION OF TRUST ASSETS
As of each Valuation Date, the Trustee shall determine the net worth of the
Trust and each of the Investment Funds, and the Committee shall adjust the
account balances of each Participant to reflect their proportionate share
of income, losses, appreciation, depreciation and expenses of each
Investment Fund since the last Valuation Date. In determining the net worth
of the Trust and of each Investment Fund, the Trustee shall value the
assets at their fair market value."
3. Section 4.01(d) is hereby amended by adding the following at the end
thereof:
"Tax-Deferred Contributions will be taken into account under the test in
subsection (c) above for a Plan Year only if they are allocated to a
Participant's account as of a date within that Plan Year."
4. Section 4.04 is hereby amended by adding the following at the end
thereof:
"The limitation on annual additions of this Section 4.04 shall apply to all
defined contribution plans (including voluntary employee contribution
accounts in a defined benefit plan and key employee accounts under a
welfare benefit plan described in Section 419 of the Code, as well as
employer contributions allocated to an IRA) of the Employer and all
Affiliated Companies, whether or not terminated, and all such plans shall
be treated as one defined contribution plan for purpose of the limitation
of this Section 4.04."
5. Section 7.04 is hereby amended by adding the following subsection (d)
at the end thereof:
"(d) In the event a Participant who has elected a payment of benefits in
the form of an annuity dies before his annuity starting date, the amount
payable to his surviving spouse pursuant to subsection (a) shall be made in
the form of an annuity for the life of the surviving spouse within a
reasonable time after the death of the Participant, subject to the spouse's
right to elect a lump sum amount."
6. Section 12.03 is hereby amended by deleting the first sentence thereof
and substituting the following in lieu thereof:
<PAGE>
"Upon termination or partial termination of the Plan or a complete
discontinuance of contributions, the Employer Accounts of all Participants
affected thereby shall become fully vested, and the Plan Administrator
shall, subject to the provisions of the immediately following paragraph,
cause the assets remaining in the Plan, including any forfeitures which
have not been applied to reduce Employer Matching Contributions hereunder,
to be allocated to the remaining Participants and Beneficiaries in
proportion to their respective Employer Account balances."
7. Section 14.06 is hereby amended by deleting subsection (a) in its
entirety and substituting therefor the following:
"(a) "Determination Date" means for any Plan Year subsequent to the first
Plan Year, the last day of the preceding Plan Year. For the first Plan Year
of the Plan, "determination date" means the last day of that Plan Year."
8. Section 14.06 is hereby amended by adding the following subsection (e)
at the end thereof:
"(e) For purposes of the top-heavy test, the value of account balances and
the present value of accrued benefits will be determined as of the most
recent valuation date that falls within or ends with the twelve-month
period ending on the "determination date." A valuation date is the annual
date on which plan assets must be valued for the purpose of determining the
value of account balances or the date on which liabilities and assets of a
defined benefit plan are valued. In the case of a defined benefit plan, the
valuation date shall be the same valuation date used for computing plan
costs for minimum funding."
B. The effective date of this First Amendment shall be July 1, 1988.
C. Except as amended herein, the Plan is confirmed in all other respects.
<PAGE>
IN WITNESS THEREOF, this First Amendment has been signed and sealed for by
an authorized member of the Retirement Committee this 21 day of February, 1995.
-- --------
RETIREMENT COMMITTEE UNDER
THE ARMIN-PLASTICS DIVISION
OF TYCO INTERNATIONAL LTD
RETIREMENT SAVINGS AND
INVESTMENT PLAN FOR CERTAIN
NON-UNION HOURLY
EMPLOYEES
By: /s/ John A. Helfrich
_____________________________
94397.b1
GRINNELL CORPORATION
HOURLY RETIREMENT SAVINGS AND INVESTMENT PLAN
Amended and Restated as of July 1, 1993
---------------------------------------
<PAGE>
TABLE OF CONTENTS
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . 2
1.01 "AFFILIATED COMPANY". . . . . . . . . . . . . . 2
1.02 "BASIC TAX-DEFERRED CONTRIBUTIONS". . . . . . . 2
1.03 "BENEFICIARY" . . . . . . . . . . . . . . . . . 2
1.04 "BREAK IN SERVICE". . . . . . . . . . . . . . . 3
1.05 "CODE". . . . . . . . . . . . . . . . . . . . . 3
1.06 "COMMITTEE" . . . . . . . . . . . . . . . . . . 3
1.07 "COMPENSATION". . . . . . . . . . . . . . . . . 3
1.08 "COMPUTATION PERIOD". . . . . . . . . . . . . . 4
1.09 "DISABILITY". . . . . . . . . . . . . . . . . . 4
1.10 "EFFECTIVE DATE". . . . . . . . . . . . . . . . 4
1.11 "ELIGIBLE EMPLOYEE" . . . . . . . . . . . . . . 4
1.12 "EMPLOYEE". . . . . . . . . . . . . . . . . . . 5
1.13 "EMPLOYER". . . . . . . . . . . . . . . . . . . 5
1.14 "EMPLOYER ACCOUNT". . . . . . . . . . . . . . . 5
1.15 "EMPLOYER MATCHING CONTRIBUTIONS" . . . . . . . 5
1.16 "EMPLOYMENT COMMENCEMENT DATE". . . . . . . . . 5
1.17 "ENTRY DATE". . . . . . . . . . . . . . . . . . 5
1.18 "ERISA" . . . . . . . . . . . . . . . . . . . . 6
1.19 "FAMILY MEMBER" . . . . . . . . . . . . . . . . 6
1.20 "FORFEITURE DATE" . . . . . . . . . . . . . . . 6
1.21 "HIGHLY COMPENSATED EMPLOYEE" . . . . . . . . . 6
1.22 "HOUR OF SERVICE" . . . . . . . . . . . . . . . 6
1.23 "INVESTMENT FUND" or "INVESTMENT FUNDS" . . . . 7
1.24 "NORMAL RETIREMENT DATE". . . . . . . . . . . . 7
1.25 "PARTICIPANT" . . . . . . . . . . . . . . . . . 7
1.26 "PLAN". . . . . . . . . . . . . . . . . . . . . 7
1.27 "PLAN ADMINISTRATOR". . . . . . . . . . . . . . 7
1.28 "PLAN YEAR" . . . . . . . . . . . . . . . . . . 7
1.29 "QUALIFIED NONELECTIVE CONTRIBUTIONS" . . . . . 8
1.30 "ROLLOVER ACCOUNT". . . . . . . . . . . . . . . 8
1.31 "ROLLOVER CONTRIBUTIONS". . . . . . . . . . . . 8
1.32 "SEVERANCE FROM SERVICE". . . . . . . . . . . . 8
1.33 "SERVICE" . . . . . . . . . . . . . . . . . . . 9
1.34 "TAX-DEFERRED ACCOUNT". . . . . . . . . . . . . 9
1.35 "TAX-DEFERRED CONTRIBUTIONS". . . . . . . . . . 9
1.36 "TRUST" . . . . . . . . . . . . . . . . . . . . 9
1.37 "TRUSTEE" . . . . . . . . . . . . . . . . . . . 9
1.38 "VALUATION DATE". . . . . . . . . . . . . . . . 9
1.39 "VOLUNTARY ACCOUNT" . . . . . . . . . . . . . . 10
1.40 "VOLUNTARY TAX-DEFERRED CONTRIBUTIONS". . . . . 10
<PAGE>
1.41 "YEAR OF ELIGIBILITY SERVICE" . . . . . . . . . 10
ARTICLE II PLAN PARTICIPATION . . . . . . . . . . . . . . . . 11
2.01 PARTICIPATION. . . . . . . . . . . . . . . . . 11
2.02 CESSATIONS OF PARTICIPATION AND ACTIVE
PARTICIPATION . . . . . . . . . . . . . . . . 12
2.03 REINSTATEMENT OF ACTIVE PARTICIPATION.. . . . . 12
2.04 BREAK IN SERVICE. . . . . . . . . . . . . . . . 12
2.05 TRANSFERS OF EMPLOYMENT; CHANGES IN
EMPLOYMENT STATUS . . . . . . . . . . . . . . . 13
ARTICLE III CONTRIBUTIONS . . . . . . . . . . . . . . . . . . 14
3.01 BASIC TAX-DEFERRED CONTRIBUTIONS. . . . . . . . 14
3.02 EMPLOYER MATCHING CONTRIBUTIONS . . . . . . . . 15
3.03 ROLLOVER CONTRIBUTIONS. . . . . . . . . . . . . 15
3.04 VOLUNTARY TAX-DEFERRED CONTRIBUTIONS. . . . . . 16
3.05 FORFEITURES . . . . . . . . . . . . . . . . . . 17
3.06 DETERMINATION OF CONTRIBUTIONS. . . . . . . . . 17
3.07 PAYMENT OF CONTRIBUTIONS. . . . . . . . . . . . 17
3.08 FUNDING . . . . . . . . . . . . . . . . . . . . 18
3.09 PROFITS NOT REQUIRED. . . . . . . . . . . . . . 18
3.10 ELECTION OF INVESTMENTS . . . . . . . . . . . . 18
ARTICLE IV LIMITATIONS ON CONTRIBUTIONS AND ALLOCATIONS . . . 20
4.01 LIMITATION ON BASIC TAX-DEFERRED
CONTRIBUTIONS . . . . . . . . . . . . . . . . . 20
4.02 LIMITATION ON EMPLOYER MATCHING
CONTRIBUTIONS . . . . . . . . . . . . . . . . . 24
4.03 QUALIFIED NONELECTIVE CONTRIBUTIONS AND
MULTIPLE USE TEST . . . . . . . . . . . . . . 27
4.04 LIMITATIONS ON ANNUAL ADDITIONS . . . . . . . . 28
ARTICLE V WITHDRAWALS PRIOR TO TERMINATION OF EMPLOYMENT. . . 32
5.01 WITHDRAWALS FROM TAX-DEFERRED ACCOUNTS AND
VOLUNTARY ACCOUNTS . . . . . . . . . . . . . . 32
5.02 RESUMPTION OF VOLUNTARY TAX-DEFERRED
CONTRIBUTIONS . . . . . . . . . . . . . . . . . 34
5.03 PROCEDURE FOR WITHDRAWAL. . . . . . . . . . . . 34
(ii)
<PAGE>
ARTICLE VI VESTING, SEVERANCE FROM SERVICE AND FORFEITURES. . 35
6.01 VESTING . . . . . . . . . . . . . . . . . . . . 35
6.02 SEVERANCE FROM SERVICE. . . . . . . . . . . . . 35
6.03 FORFEITURES . . . . . . . . . . . . . . . . . . 36
ARTICLE VII DISTRIBUTIONS AT RETIREMENT, DEATH OR DISABILITY. 38
7.01 DISTRIBUTIONS AT RETIREMENT . . . . . . . . . . 38
7.02 DISTRIBUTIONS UPON INCURRING DISABILITY . . . . 39
7.03 DISTRIBUTIONS AT DEATH. . . . . . . . . . . . . 39
7.04 LOANS TO PARTICIPANTS . . . . . . . . . . . . . 40
ARTICLE VIII ADMINISTRATION . . . . . . . . . . . . . . . . . 43
8.01 ALLOCATION OF RESPONSIBILITY. . . . . . . . . . 43
8.02 APPOINTMENT OF PLAN ADMINISTRATOR . . . . . . . 43
8.03 CLAIMS PROCEDURE. . . . . . . . . . . . . . . . 44
8.04 RECORDS AND REPORTS . . . . . . . . . . . . . . 44
8.05 POWERS AND DUTIES OF THE PLAN ADMINISTRATOR . . 45
8.06 RULES AND DECISIONS . . . . . . . . . . . . . . 46
8.07 AUTHORIZATION OF BENEFIT PAYMENTS . . . . . . . 46
8.08 APPLICATION AND FORMS FOR BENEFITS. . . . . . . 46
8.09 FACILITY OF PAYMENT . . . . . . . . . . . . . . 46
8.10 COMPENSATION OF PLAN ADMINISTRATOR AND PLAN
EXPENSES . . . . . . . . . . . . . . . . . . . 47
8.11 INDEMNIFICATION . . . . . . . . . . . . . . . . 47
ARTICLE IX MISCELLANEOUS. . . . . . . . . . . . . . . . . . . 48
9.01 NONGUARANTEE OF EMPLOYMENT. . . . . . . . . . . 48
9.02 RIGHTS OF EMPLOYEES AND BENEFICIARIES . . . . . 48
9.03 NONALIENATION OF BENEFITS . . . . . . . . . . . 48
9.04 DISCONTINUANCE OF EMPLOYER CONTRIBUTIONS. . . . 49
9.05 REVERSION TO EMPLOYER . . . . . . . . . . . . . 49
9.06 COMMENCEMENT AND TIMING OF DISTRIBUTIONS. . . . 49
9.07 JURISDICTION. . . . . . . . . . . . . . . . . . 51
9.08 LEASED EMPLOYEES. . . . . . . . . . . . . . . . 52
ARTICLE X AMENDMENTS AND ACTION BY EMPLOYER . . . . . . . . . 53
10.01 AMENDMENTS . . . . . . . . . . . . . . . . 53
10.02 ACTION BY EMPLOYER . . . . . . . . . . . . 53
(iii)
<PAGE>
ARTICLE XI SUCCESSOR EMPLOYER AND MERGER OR CONSOLIDATION
OF PLANS . . . . . . . . . . . . . . . . . 54
11.01 SUCCESSOR EMPLOYER . . . . . . . . . . . . 54
11.02 PLAN ASSETS. . . . . . . . . . . . . . . . 54
ARTICLE XII PLAN TERMINATION. . . . . . . . . . . . . . . . . 56
12.01 RIGHT TO TERMINATE . . . . . . . . . . . . 56
12.02 PARTIAL TERMINATION. . . . . . . . . . . . 56
12.03 LIQUIDATION OF THE PLAN. . . . . . . . . . 56
12.04 MANNER OF DISTRIBUTION . . . . . . . . . . 57
ARTICLE XIII DISCHARGE OF DUTIES BY FIDUCIARIES . . . . . . . 58
ARTICLE XIV TOP-HEAVY PROVISIONS. . . . . . . . . . . . . . . 59
14.01 GENERAL RULE . . . . . . . . . . . . . . . 59
14.02 VESTING PROVISIONS . . . . . . . . . . . . 59
14.03 MINIMUM BENEFIT PROVISIONS . . . . . . . . 59
14.04 ADJUSTMENT TO COMBINED PLAN LIMIT. . . . . 60
14.05 TOP-HEAVY PLAN DEFINITION. . . . . . . . . 60
14.06 KEY EMPLOYEE . . . . . . . . . . . . . . . 62
14.07 NON-KEY EMPLOYEE . . . . . . . . . . . . . 62
14.08 CHANGE FROM TOP-HEAVY STATUS . . . . . . . 62
ARTICLE XV DIRECT ROLLOVERS . . . . . . . . . . . . . . . . . 63
15.01 APPLICATION OF THIS ARTICLE. . . . . . . . 63
15.02 DEFINITIONS. . . . . . . . . . . . . . . . 63
(iv)
<PAGE>
FORWARD
-------
The Grinnell Corporation Hourly Retirement Savings and
Investment Plan (the "Plan") was established as of March 1, 1989 by Grinnell
Corporation (the "Employer"), for the benefit of its eligible employees. The
Plan was subsequently amended to permit Voluntary Tax-Deferred
Contributions and to conform with the requirements of the Tax Reform Act of
1986.
Effective as of July 1, 1992, the Plan was amended and restated to make
additional changes required by the final regulations and to permit directed
investments by its participants.
Effective as of July 1, 1993, the Plan is further amended and restated to
make additional changes required by the final regulations, to permit plan loans,
and to make other administrative changes to the Plan.
<PAGE>
ARTICLE I
DEFINITIONS
-----------
1.01 "AFFILIATED COMPANY" means (a) a corporation which, together with
Grinnell Corporation, is a member of a controlled group of corporations (as
defined in Section 414(b) of the Code), (b) a trade or business (whether or not
incorporated) which is under common control (as defined in Section 414(c) of the
Code) with Grinnell Corporation, (c) a corporation, partnership or other entity
which, together with Grinnell Corporation, is a member of an affiliated service
group (as defined in Section 414(m) of the Code), or (d) an organization which
is required to be aggregated with Grinnell Corporation pursuant to regulations
promulgated under Section 414(o) of the Code. For purposes of determining an
Employee's Hours of Service, years of Service, Years of Eligibility Service, and
the occurrence of a Break in Service under the Plan, any period of employment
with Grinnell Corporation or with an Affiliated Company if the Employee is
employed by such entity on the date of acquisition, including periods of
employment with an Affiliated Company or any predecessor entity prior to the
date on which such entity became an Affiliated Company, shall be recognized.
1.02 "BASIC TAX-DEFERRED CONTRIBUTIONS" shall mean the contributions made
by the Employer for each Participant pursuant to Section 3.01 of the Plan
which are made on account of a salary adjustment agreement with such
Participant.
1.03 "BENEFICIARY" shall mean the person(s) or other recipient(s) entitled
in accordance with the provisions of Article VII hereof to receive any
distribution which may become payable under this Plan after the death of a
Participant, and includes the surviving
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spouse of a Participant who is deemed to be a designated Beneficiary pursuant to
Section 7.03(b).
1.04 "BREAK IN SERVICE" shall mean a twelve (12) consecutive month period
during which the Employee does not perform any Hours of Service for the
Employer or any Affiliated Company. In the case of any Employee who is
absent from work for maternity or paternity reasons, the twelve-consecutive
month period beginning on the first anniversary of the first date of such
absence shall not constitute a Break in Service. For purposes of this
paragraph, an absence from work for maternity or paternity reasons means an
absence from work by reason of pregnancy, birth or adoption of a child, or for
purposes of caring for such child during a period beginning immediately
following such birth or adoption.
1.05 "CODE" shall mean the Internal Revenue Code of 1986, and any
amendments thereto, and any rulings and regulations thereunder.
1.06 "COMMITTEE" shall mean the Retirement Committee appointed pursuant to
Article VIII hereof.
1.07 "COMPENSATION" shall mean direct cash compensation for the current
calendar year paid to a Participant by the Employer for services rendered,
including salaries, overtime pay, commissions, bonuses, amounts realized when
restricted stock held by the Participant becomes freely transferable or is no
longer subject to a substantial risk of forfeiture, and any amounts which would
have been paid to the Participant as cash compensation but for an election by
such Participant under Section 125 or 401(k) of the Code, but excluding any
other form of direct and indirect remuneration, and other forms of contributions
or benefits under this Plan. A Participant's Compensation for any Plan Year
shall not be taken into account, to the extent that such Compensation exceeds
$200,000,
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subject to cost-of-living adjustments made by the Secretary of Treasury or his
delegate. For Plan Years beginning on or after January 1, 1994, the limitation
shall be reduced to $150,000.
In determining the Compensation of a Participant for purposes of this
limitation, the rules of Section 414(q)(6) of the Code shall apply, except that
in applying such rules, the term "family" shall include only the spouse of the
Participant and any lineal descendants of the Participant who have not attained
age 19 before the close of the Plan Year. If, as a result of the application of
such rules, the adjusted limitation is exceeded, then the limitation shall be
prorated among the affected individuals in proportion to each such individual's
Compensation as determined under this section prior to application of the
limitation.
1.08 "COMPUTATION PERIOD" shall mean the twelve (12) consecutive month
period commencing on the Employee's Employment Commencement Date (or date of
reemployment in the case of an Employee who is reemployed after incurring one or
more Breaks in Service) and each anniversary thereof.
1.09 "DISABILITY" shall mean a Participant's permanent and total incapacity
of engaging in any employment for the Employer for physical or mental reasons.
Disability shall be deemed to exist only when such Participant meets either the
requirements for disability benefits under the Social Security law then in
effect, or the requirements for disability benefits under the Employer's long
term disability plan.
1.10 "EFFECTIVE DATE" of this amendment and restatement shall mean January
1, 1993. The original effective date of this Plan shall mean March 1, 1989.
1.11 "ELIGIBLE EMPLOYEE" shall mean any hourly Employee of an Employer who,
on or after the effective date of the adoption of this Plan by the Employer, is
a member
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of a class of employees which has been designated by the Board of Directors of
such Employer as eligible to participate in this Plan. Notwithstanding the
foregoing, if an Employee's compensation or conditions of employment are
determined by or subject to collective bargaining with a union, he shall not be
an Eligible Employee unless the applicable collective bargaining agreement
expressly provides that he shall be eligible to participate in this Plan.
1.12 "EMPLOYEE" shall mean any individual who is receiving remuneration for
services rendered to Grinnell Corporation or any Affiliated Company as a common
law employee.
1.13 "EMPLOYER" shall mean Grinnell Corporation and any Affiliated Company
which adopts this Plan.
1.14 "EMPLOYER ACCOUNT" shall mean that portion of a Participant's interest
in the Plan which is attributable to the Employer Matching Contributions made on
his behalf hereunder.
1.15 "EMPLOYER MATCHING CONTRIBUTIONS" shall mean the contributions
required to be made by the Employer pursuant to Section 3.02. Such contributions
are in addition to the Basic Tax-Deferred Contributions and Voluntary
Tax-Deferred Contribution required to be made by the Employer pursuant to salary
adjustment agreements.
1.16 "EMPLOYMENT COMMENCEMENT DATE" shall mean the date the
Employee first performs an Hour of Service for the Employer or an
Affiliated Company.
1.17 "ENTRY DATE" shall mean January 1, April 1, July 1 and October 1.
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1.18 "ERISA" shall mean Public Law No. 93-406, the Employee Retirement
Income Security Act of 1974, and any amendments thereto and any rulings
and regulations thereunder.
1.19 "FAMILY MEMBER" shall mean the spouse or lineal ascendants or
descendants (and their spouses) of an Employee who owns (or is considered to own
within the meaning of Section 318 of the Code) more than 5% of the outstanding
stock of the Employer or an Affiliated Company or who is a member of a group
consisting of the ten (10) Highly Compensated Employees paid the greatest
Compensation during the Plan Year.
1.20 "FORFEITURE DATE" shall mean the date the Participant ceases to be an
Employee. A Participant who has no vested interest in his Employer Account shall
be deemed to be cashed-out of his Employer Account on his Forfeiture Date.
1.21 "HIGHLY COMPENSATED EMPLOYEE" shall mean any person who is a "highly
compensated employee" within the meaning of Section 414(q) of the Code and the
regulations promulgated thereunder.
1.22 "HOUR OF SERVICE" shall mean:
(a) Each hour for which an Employee is paid, or entitled to payment,
for the performance of duties for the Employer. These hours shall be credited to
the Employee for the Computation Period in which the duties are performed;
(b) Each hour for which an Employee is paid, or entitled to payment,
by the 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. No more than 501 Hours of Service
shall be credited under this paragraph for any
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single continuous period of absence for which no duties are performed (whether
or not such period occurs in a single Computation Period). Hours under this
paragraph shall be calculated and credited pursuant to Section 2530.200b-2(b)
and (c) of the Department of Labor Regulations which are incorporated herein by
this reference;
(c) Each hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by the Employer. The same Hours of
Service shall not be credited both under paragraphs (a) or (b), as the case may
be, and under this paragraph (c). These hours shall be credited to the Employee
for the Computation Period for which the award, agreement or payment is made.
1.23 "INVESTMENT FUND" or "INVESTMENT FUNDS" shall mean such one or more
investment vehicles, including but not limited to mutual funds and insurance
contracts, which the Plan Administrator may from time to time, in its sole
discretion, specify as being available for the investment of Trust assets.
1.24 "NORMAL RETIREMENT DATE" shall mean a Participant's 65th birthday.
1.25 "PARTICIPANT" shall mean any Eligible Employee who elects to
participate in the Plan in accordance with the provisions of Article II hereof.
1.26 "PLAN" shall mean the Grinnell Corporation Hourly Retirement Savings
and Investment Plan as set forth herein and as amended from time to time
hereafter.
1.27 "PLAN ADMINISTRATOR" shall mean the Committee, or its successor(s),
who shall have those responsibilities of administering the Plan as set forth in
Article VIII hereof.
1.28 "PLAN YEAR" shall mean the twelve (12) month period commencing on any
January 1 and ending on the succeeding December 31.
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1.29 "QUALIFIED NONELECTIVE CONTRIBUTIONS" shall mean contributions made by
the Employer on behalf of a Participant that (a) the Participant may not elect
to receive in cash until distributed from the Plan, (b) is 100% vested and
nonforfeitable when made, and (c) is not distributed from the Plan to the
Participant or his Beneficiary before the earlier of his separation from
service, death, disability or the occurrence of any such events described in
Section 9.06(d), clauses (ii), (iii) or (iv). Qualified Nonelective
Contributions shall be allocated to a Participant's Tax-Deferred Account.
1.30 "ROLLOVER ACCOUNT" shall mean that portion of a Participant's interest
in the Plan which is attributable to his Rollover Contributions.
1.31 "ROLLOVER CONTRIBUTIONS" shall mean contributions to the Plan made by
a Participant pursuant to Section 3.03 consisting of all or any portion of (a)
any amount received by such Participant from another plan and trust qualified as
an exempt employee benefit plan and trust under Sections 401(a) and 501(a) of
the Code, or (b) any amount received by such Participant from an individual
retirement account or individual retirement annuity which consists of a prior
lump sum distribution from a qualified employee benefit plan which but for such
contribution to the Plan, would have been taxable income to such Employee.
1.32 "SEVERANCE FROM SERVICE" means the earlier of the date on which an
Employee terminates employment, retires or dies, or the first anniversary of the
first day of absence (with or without pay) for any other reason. Transfers of an
Employee between and among Affiliated Companies, including Grinnell Corporation,
will not result in a Severance from Service.
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1.33 "SERVICE" of an Employee shall mean a period of time commencing with
such Employee's Employment Commencement Date and ending on the date of the
Employee's next following Severance from Service, and shall include any such
period or portion thereof occurring prior to the Effective Date of this Plan. In
the case of an Employee who performs an Hour of Service for the Employer or an
Affiliated Company within twelve (12) months of the date of his Severance from
Service, his period of Service shall include the period following his Severance
from Service and, in such event, said Severance from Service shall be
disregarded for all purposes of the Plan. Periods of Service which are not
successive shall be aggregated. For vesting purposes, credit shall be given only
for whole years and (after aggregating as provided above), any remaining
fraction of a year shall be disregarded.
1.34 "TAX-DEFERRED ACCOUNT" shall mean that portion of a Participant's
interest in the Plan which is attributable to his Basic Tax-Deferred
Contributions.
1.35 "TAX-DEFERRED CONTRIBUTIONS" shall mean and include a Participant's
Basic Tax-Deferred Contributions and Voluntary Tax-Deferred Contributions,
collectively.
1.36 "TRUST" means the trust created by an agreement between Grinnell
Corporation or an Affiliated Company and the Trustee for purposes of holding
Plan assets.
1.37 "TRUSTEE" means the trustee duly designated under the trust agreement
and any duly appointed successor trustee or trustees.
1.38 "VALUATION DATE" shall mean the last business day of
each month through September 30, 1993 and from October 1, 1993 onwards,
shall mean each business
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day of the Plan Year on which the New York Stock Exchange is open or any other
date the Committee may designate.
1.39 "VOLUNTARY ACCOUNT" shall mean that portion of a Participant's
interest in the Plan which is attributable to his Voluntary Tax-Deferred
Contributions.
1.40 "VOLUNTARY TAX-DEFERRED CONTRIBUTIONS" shall mean the
contributions made by the Employer for each Participant pursuant
to Section 3.04 of the Plan which are made on account by a salary adjustment
agreement with such Participant.
1.41 "YEAR OF ELIGIBILITY SERVICE" shall mean each Computation Period,
including Computation Periods occurring prior to March 1, 1989, during which an
Employee is credited with at least 1,000 Hours of Service with the Employer.
Wherever used herein, a pronoun in the masculine gender shall be considered
as including the feminine gender unless the context clearly indicates otherwise.
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ARTICLE II
PLAN PARTICIPATION
------------------
2.01 PARTICIPATION. Each Eligible Employee, including each future Eligible
Employee, shall be eligible to become a Participant in this Plan as of any Entry
Date which coincides with or immediately follows the latest of
(a) the effective date of the adoption of this Plan by
the Employer of the Eligible Employee;
(b) the date the Eligible Employee completes one (1) Year of
Eligibility Service;
(c) the Eligible Employee's 19th birthday; and
(d) the date the Employee becomes an Eligible Employee.
The Plan Administrator shall notify each Eligible Employee on or before the
date he is first eligible to participate, and shall supply each such Eligible
Employee with an application form on which to apply for inclusion in the Plan
and to authorize the Employer to adjust his salary in consideration of the Basic
Tax-Deferred Contributions to be made to the Plan by the Employer on his behalf.
Upon notification of eligibility and receipt of an application, an Eligible
Employee shall have 31 days (or such shorter period as the Plan Administrator
may specify) in which to return the completed application to the Plan
Administrator who shall, in turn, notify the Employer to begin making the
necessary salary adjustments and Basic Tax-Deferred Contributions in accordance
with Article III hereof. If an Eligible Employee should elect not to be included
in the Plan during such period, he may elect to become a Participant on the
Entry Date coincident with or next following the date he has completed and
returned said application to the Plan Administrator.
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2.02 CESSATIONS OF PARTICIPATION AND ACTIVE PARTICIPATION A
Participant shall become an inactive Participant as of his
Severance from Service. He shall remain an inactive Participant until the date
on which the balance of his accounts is distributed to him, at which time he
shall cease to be a Participant.
2.03 REINSTATEMENT OF ACTIVE PARTICIPATION. If a Participant
becomes an inactive Participant or ceases to be such altogether and he is
subsequently reemployed by the Employer as an Eligible Employee prior to the
date he has incurred a Break in Service, he shall recommence active
participation in this Plan on his date of reemployment or, if he so elects, on a
subsequent Entry Date provided he agrees to adjust his salary in return for the
Employer making equivalent Basic Tax-Deferred Contributions to the Plan on his
behalf.
2.04 BREAK IN SERVICE. The following shall apply to all Employees or
Participants who are reemployed after incurring a Break in Service:
(a) Employees or Participants Who Were Vested In Their Employer
Accounts. With respect to an Employee or Participant who was vested in his
Employer Account prior to his termination of employment, his prior years of
Service and Years of Eligibility Service shall be fully restored upon
reemployment.
(b) Employees or Participants Who Were Not Vested In Their Employer
Accounts.
With respect to an Employee or Participant who incurs a Break in Service
and who was not vested in his Employer Account prior to his termination of
employment, his prior years of Service and Years of Eligibility Service shall be
fully restored upon reemployment only if the number of his consecutive Breaks in
Service is less than the greater of five (5) or the aggregate number of years of
Service before such break. If such Employee's or
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Participant's number of consecutive Breaks in Service equals or exceeds the
greater of five (5) or the aggregate number of years of Service before such
break, his prior years of Service and Years of Eligibility Service shall be
forfeited and he shall be treated as a new Employee for all purposes of the
Plan.
If the prior years of Service and Years of Eligibility Service of a former
Employee or Participant are restored pursuant to this Section 2.04, and such
former Employee or Participant otherwise meets the eligibility requirements set
forth in Section 2.01, he shall be eligible to become an active Participant on
his date of reemployment, or if he so elects, on a subsequent Entry Date
provided he agrees to reduce his salary in return for the Employer making
equivalent Basic Tax-Deferred Contributions to the Plan on his behalf.
2.05 TRANSFERS OF EMPLOYMENT; CHANGES IN EMPLOYMENT
STATUS. If an individual should transfer his employment from a non-participating
Affiliated Company to the Employer or if an individual should change the status
of his employment with the Employer and, in either case, he thereby becomes an
Eligible Employee, then for purposes of determining the Compensation of such an
Eligible Employee, compensation paid by such non-participating Affiliated
Company shall be included as if it had been paid by an Employer. If an Eligible
Employee should transfer his employment from the Employer to a
non-participating Affiliated Company or if an Eligible Employee should
change the status of his employment with the Employer and, in either
case, he thereby ceases to be an Eligible Employee, he shall cease to be an
active Participant as of the day on which such transfer or change in status
occurs, but he shall not be deemed to have incurred a Severance from
Service, and he shall not be entitled to receive a distribution from the
Plan until his actual Severance from Service.
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ARTICLE III
CONTRIBUTIONS
-------------
3.01 BASIC TAX-DEFERRED CONTRIBUTIONS. Each Participant may make Basic
Tax-Deferred Contributions to the Plan which shall entitle him to be credited
with Employer Matching Contributions. Subject to the limitations set forth in
Article IV, for each Plan Year, the total amount of Basic Tax-Deferred
Contributions which shall be made by or on behalf of each Participant shall be
equal to two percent (2%) of his Compensation. After a Participant has completed
20 or more years of Service, he may elect, as of any January 1, April 1, July 1
or October 1, to increase his Basic Tax-Deferred Contributions to three percent
(3%) of his Compensation. The Participant may elect to have the Employer make
Basic Tax-Deferred Contributions to the Plan on his behalf by agreeing to adjust
his Compensation by an amount equal to the amount of such Basic Tax-Deferred
Contributions. Basic Tax-Deferred Contributions shall be credited to the
Participant's Tax-Deferred Account.
A Participant may elect to suspend salary adjustment pursuant to this
Section 3.01 and the Basic Tax-Deferred Contributions made on his behalf as of
the first day of any month. A Participant's election to suspend such
contributions must be made in writing to the Plan Administrator at least 30 days
prior to the first day of any month in which the suspension is to be made
effective. A Participant who suspends Basic Tax-Deferred Contributions on his
behalf pursuant to the foregoing proviso may elect to resume such contributions
as of any Entry Date which succeeds the date of suspension by at least three (3)
months, by means of written notice to the Plan Administrator given in the manner
required by the Plan Administrator, which may include completion of a new
application and salary reduction
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agreement as described in Section 2.01, at least 30 days prior to the date on
which the resumption is to be effective.
3.02 EMPLOYER MATCHING CONTRIBUTIONS. For each Plan Year,
Employer Matching Contributions shall be made on behalf of each Participant who
makes a Basic Tax-Deferred Contribution to the Plan during the Plan Year based
on the schedule set forth below in accordance with the number of years of
Service completed by such Participant. Employer Matching Contributions shall be
credited to the Participant's Employer Account.
Amount of Employer
Years of Service Matching Contributions
---------------- ----------------------
less than 10 100% of Basic Tax-Deferred Contributions, up
to 2% of Compensation
10 - 19 200% of Basic Tax-Deferred Contributions, up
to 4% of Compensation
20 or more 200% of Basic Tax-Deferred Contributions, up
to 6% of Compensation
Any increase in Employer Matching Contributions from 2% to 4% or 6% of
Compensation, as the case may be, shall be effective as of the Entry Date
coincident with or next following the date on which the date the Participant
attains the requisite years of Service, and, if applicable, increases his Basic
Tax-Deferred Contributions.
3.03 ROLLOVER CONTRIBUTIONS. With the approval of the Plan
Administrator, each Participant may roll over any Eligible Rollover Distribution
(as defined in Section 15.02(a)) he may have received from another retirement
plan and trust qualified as an exempt employee benefit plan and trust under
Sections 401(a) and 501(a) of the Code. Such Participant may also roll over
distributions from an individual retirement account or
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individual retirement annuity which consists of prior lump sum distributions or
Eligible Rollover Distributions from a qualified employee benefit plan and
trust, provided that such funds are transferred to the Plan within 60 days after
the Participant receives them. Notwithstanding the foregoing, no rollover
amounts may be accepted to the extent prohibited by Section 402 or 408 of the
Code. Contributions under this Section 3.03 shall be in cash only, and shall be
fully vested and nonforfeitable at all times. Rollover Contributions shall be
credited to a separate Rollover Account for such Participant. Rollover
Contributions shall not be deemed to be Participant contributions for purpose of
the limitations set forth in Sections 4.01 and 4.04.
3.04 VOLUNTARY TAX-DEFERRED CONTRIBUTIONS. A Participant may elect to have
the Employer make Voluntary Tax-Deferred Contributions to the Plan on his behalf
each year, but only if such Participant has agreed to a further downward
adjustment in his Compensation equal to the amount of such Voluntary
Tax-Deferred Contributions. Voluntary Tax-Deferred Contributions shall be
credited to the Participant's Voluntary Account.
Prior to August 1, 1994, for each Plan Year, the amount of Voluntary
Tax-Deferred Contributions shall not exceed 10% of the Participant's
Compensation as elected by the Participant. Effective August 1, 1994, the amount
of Voluntary Tax-Deferred Contributions shall not exceed the limitations set
forth in Article IV.
A Participant may elect to change the rate of Voluntary Tax-Deferred
Contributions on his behalf as of any Entry Date and August 1, 1994; provided,
however, that a Participant may elect to suspend salary adjustment pursuant to
this Section 3.04 and the Voluntary Tax-Deferred Contributions on his behalf as
of the first day of any month. A Participant's
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election to change the rate of Voluntary Tax-Deferred Contributions or to
suspend such contributions must be made in writing to the Plan Administrator at
least 30 days prior to the first day of any month in which the change or
suspension is to be made effective. A Participant who suspends Voluntary
Tax-Deferred Contributions on his behalf pursuant to the foregoing provision may
elect to resume such contributions as of any Entry Date which succeeds the date
of suspension by at least three (3) months, by means of written notice to the
Plan Administrator given in the manner required by the Plan Administrator, which
may include completion of a new application and salary adjustment agreement as
described in Section 2.01, at least 30 days prior to the date on which the
resumption is to be effective.
3.05 FORFEITURES. Amounts forfeited under Section 6.03 by Participants upon
termination of their employment with the Employer shall be reapplied in such a
way as to reduce future Employer Matching Contributions under the Plan.
3.06 DETERMINATION OF CONTRIBUTIONS. The amount of Basic Tax-Deferred
Contributions, Voluntary Tax-Deferred Contributions, Qualified Nonelective
Contributions and Employer Matching Contributions shall be subject to final
determination by the Plan Administrator. The amount of such contributions, as
determined by the Plan Administrator, shall be conclusive and binding on all
persons.
3.07 PAYMENT OF CONTRIBUTIONS. The Employer Matching Contributions for each
Plan Year shall be made at such time or times as the Employer determines but not
later than the time required by law in order for the Employer to obtain a
deduction of the amount of such payment for Federal income tax purposes as
determined under the applicable provisions of the Code. All Basic Tax-Deferred
Contributions made with respect to a pay period shall be paid into the Plan by
the Employer no later than 30 days after the last day of
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such pay period. All Voluntary Tax-Deferred Contributions made with respect to a
pay period shall be paid into the Plan by the Employer no later than 30 days
after the last day of such pay period.
3.08 FUNDING. Grinnell Corporation or an Affiliated Company has entered
into a trust agreement with a Trustee, creating a Trust for the purpose of
holding Plan assets and providing benefits under the Plan. All contributions
under the Plan shall be invested in the Investment Funds and such other
investment vehicles as specifically provided in the trust agreement and shall be
held, managed and disposed of by the Trustee in accordance with the provisions
of the trust agreement for purposes contemplated by the Plan.
3.09 PROFITS NOT REQUIRED. The Employer shall, notwithstanding any other
provision of the Plan, make all contributions to the Plan without regard to
current or accumulated earnings and profits. Notwithstanding the foregoing, the
Plan shall be designated to qualify as a profit-sharing plan for purposes of
Sections 401(a), 402, 412 and 417 of the Code.
3.10 ELECTION OF INVESTMENTS.
(a) Each Participant, including a former Participant whose account
balances are still maintained in the Trust, shall elect the manner of investment
of all amounts standing to the credit of his accounts in the Trust among the
Investment Funds established under the Trust. By such election, the Participant
shall direct the portion of the aggregate amount then credited, and/or
thereafter to be credited, to his accounts which is to be invested by the
Trustee in each of the Investment Funds. The Plan Administrator shall maintain
records of account at all times adequately reflecting each Participant's
interest in each of the Investment Funds.
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(b) A Participant may revoke his election as to any amounts then
standing in, and/or thereafter to be credited to, his accounts at such time or
times and in such manner as the Plan Administrator determines on a uniform basis
for all Participants, and may make a new investment election in accordance with
this Section 3.10. Effective October 1, 1993, such investment election changes
may be made on a daily basis. In the event that such a new election causes a
transfer of assets from one Investment Fund to another, the transfer shall be
made by the Trustee as soon as reasonably possible.
(c) To make an investment election, each Participant shall give
written notice to the Plan Administrator in such form and at such time as the
Plan Administrator may reasonably require. To be effective, such an investment
election must be in accordance with any and all rules and regulations
established by the Plan Administrator for this purpose.
(d) Any investment election made hereunder shall continue to be
effective until properly revoked by the Participant.
(e) The Employer, the Plan Administrator and the Trustee shall have no
responsibility for the investment elections of the Participants and shall incur
no liability on account of investing the assets of the Trust in accordance with
such directions.
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ARTICLE IV
LIMITATIONS ON CONTRIBUTIONS AND ALLOCATIONS
--------------------------------------------
4.01 LIMITATION ON BASIC TAX-DEFERRED CONTRIBUTIONS.
(a) The Basic Tax-Deferred Contributions and Voluntary Tax-Deferred
Contributions made by the Employer for each fiscal year shall not exceed that
amount which, when added to the Employer Matching Contributions made by the
Employer for that fiscal year, equals the maximum amount allowable as a
deduction by the Employer under Section 404 of the Code for such
fiscal year.
(b) The Basic Tax-Deferred Contributions and Voluntary Tax-Deferred
Contributions made by the Employer for any Participant under this Plan and all
other plans maintained by the Employer or an Affiliated Company for any calendar
year shall not exceed $8,994, subject to cost-of-living adjustments made by the
Secretary of Treasury or his delegate pursuant to Section 402(g)(5) of the Code.
(c) At any time during the Plan Year, the Employer may
suspend or reduce the amount of Basic Tax-Deferred Contributions and
Voluntary Tax-Deferred Contributions on a prospective basis with respect to any
Highly Compensated Employee if the Plan Administrator determines that such
suspension or reduction is necessary to cause the test in either (i) or, to the
extent not prohibited by regulations promulgated by the Secretary of Treasury,
(ii) below to be met with respect to Basic Tax-Deferred Contributions and
Voluntary Tax-Deferred Contributions for such Plan Year:
(i) the Actual Deferral Percentage for the Highly Compensated
Employees eligible for Basic Tax-Deferred Contributions and Voluntary
Tax-Deferred Contributions is not more than the Actual Deferral Percentage
for all other Employees
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eligible for Basic Tax-Deferred Contributions and Voluntary Tax-Deferred
Contributions multiplied by 1.25; or
(ii) the excess of the Actual Deferral Percentage for the Highly
Compensated Employees eligible for Basic Tax-Deferred Contributions and
Voluntary Tax-Deferred Contributions over the Actual Deferral Percentage
for all other Employees eligible for Basic Tax-Deferred Contributions and
Voluntary Tax-Deferred Contributions is not more than two (2) percentage
points, and the Actual Deferral Percentage for the Highly Compensated
Employees eligible for Basic Tax-Deferred Contributions and Voluntary
Tax-Deferred Contributions is not more than the Actual Deferral Percentage
for all other Employees eligible for Basic Tax-Deferred Contributions and
Voluntary Tax-Deferred Contributions multiplied by two (2). All
determinations required under this subsection (c) shall be made by the Plan
Administrator and its determinations shall be final and binding on all
persons.
(d) For the purposes of subsection (c) above, the "Actual Deferral
Percentage" for a specified group of Employees for a Plan Year shall be the
average of the ratios (calculated separately for each Employee in such group and
expressed as a percentage) of (i) the amount of the Basic Tax-Deferred
Contributions and Voluntary Tax-Deferred Contributions actually paid over to the
Plan on behalf of the Employee for such Plan Year to (ii) the Employee's "total
compensation" for such Plan Year. If the Employer elects to make Qualified
Nonelective Contributions to the Plan, the Plan Administrator may include any
such contributions allocated to a Participant's Tax-Deferred Account in
determining the Participant's Actual Deferral Percentage. For purposes of this
subsection (d) and Section 4.02, "total compensation" means the amount of
compensation paid by the Employer to the
21
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Participant during the Plan Year (or portion thereof in which the Participant is
eligible to participate in the Plan) which is subject to withholding and
required to be reported on the Participant's Form W-2 plus the amount which
would have been paid to the Participant as cash compensation but for an election
by such Participant under Section 125 or 401(k) of the Code. The "total
compensation" taken into account with respect to a Participant for any Plan Year
shall not exceed $200,000 ($150,000 beginning January 1, 1994), subject to
cost-of-living adjustments made by the Secretary of Treasury or his delegate.
(e) In determining the deferral percentage of a Highly Compensated
Employee who has a Family Member who is an Employee, the Basic Tax-Deferred
Contributions and Voluntary Tax-Deferred Contributions made on behalf of such
Highly Compensated Employee and the "total compensation" of such Highly
Compensated Employee shall include the Basic Tax-Deferred Contributions and
Voluntary Tax-Deferred Contributions and "total compensation" of the Family
Member, and the Family Member shall not be considered a separate Employee for
purposes of determining the Actual Deferral Percentage for any group under the
Plan to the extent required by Section 414(q) of the Code and the regulations
promulgated thereunder;
(f) If the Plan satisfies the requirements of Section 401(k),
401(a)(4) or 410(b) of the Code (other than the average benefit percentage test)
only if aggregated with one or more other qualified plans, or if one or more
other plans satisfy such requirements only if aggregated with this Plan, then
this Section 4.01 shall be applied by determining the Actual Deferral Percentage
of Participants as if all such plans were a single plan. Notwithstanding the
above requirements, plans may be aggregated to satisfy Section 401(k) of the
Code only if they have the same Plan Year.
22
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(g) In the event Basic Tax-Deferred Contributions and Voluntary
Tax-Deferred Contributions actually made on behalf of Highly Compensated
Employees exceed the limitations set forth in subsection (c) above, the Plan
Administrator shall direct the Trustee to reduce such contributions of such
Highly Compensated Employees in order of their deferral percentages, beginning
with the highest of such percentages, to the extent necessary to cause the Plan
to meet such limitations. Such reduction shall be made first with respect to
Voluntary Tax-Deferred Contributions and then with respect to Basic Tax-Deferred
Contributions. Any reduction in Basic Tax-Deferred Contributions shall also be
accompanied by a reduction of the associated Employer Matching Contributions,
which shall be forfeited and applied to reduce future Employer Matching
Contributions. Any Basic Tax-Deferred Contributions and Voluntary Tax-Deferred
Contributions so reduced, as adjusted for income or loss allocable thereto in
accordance with Section 4.01(h) below, shall be distributed to the Highly
Compensated Employees on whose behalf such contributions were made as soon as
practicable, but no later than December 31 of the following Plan Year.
(h) The income or loss allocable to a Participant's Tax-Deferred
Contributions which exceed the limitation of subsection (c) above shall be
determined by multiplying the investment gain or loss of such Participant's
Tax-Deferred Account for such Plan Year from which such excess Tax-Deferred
Contributions are withdrawn by a fraction. The numerator of this fraction is the
amount of the Participant's excess Tax-Deferred Contributions to be distributed
and the denominator is the amount credited to the Participant's Tax-Deferred
Account as of the beginning of the Plan Year, increased by the Tax-Deferred
Contributions allocable to such account for such Plan Year.
23
<PAGE>
(i) If, during any Plan Year, more than the maximum permissible amount
under Section 402(g) of the Code is allocated pursuant to one or more cash or
deferred arrangements to a Participant's accounts under this Plan and any other
plan described in Sections 401(k), 408(k), or 403(b) of the Code, the following
provisions shall apply:
(i) No later than March 1 of the next succeeding Plan Year, the
Participant may, but is not required to, allocate all or part of such
contributions in excess of the maximum permissible amount ("excess
deferrals") to this Plan. To be effective, such allocation must be in
writing, state that excess deferrals have been made on behalf of such
Participant for the preceding Plan Year, and be submitted to the Plan
Administrator.
(ii) To the extent a Participant timely allocates excess
deferrals to this Plan pursuant to (i) above, the Plan Administrator shall
direct the Trustee to distribute such excess deferrals, adjusted for income
or losses as determined in accordance with subsection (h) above, to the
Participant no later than the April 15 following such allocation.
4.02 LIMITATION ON EMPLOYER MATCHING CONTRIBUTIONS.
(a) For each Plan Year, the Employer Matching Contributions made with
respect to any Highly Compensated Employee shall be reduced if the Plan
Administrator determines that such reduction is necessary to cause the test in
either (i) or, to the extent not prohibited by regulations promulgated by the
Secretary of the Treasury, (ii) below to be met with respect to such
contributions for such Plan Year:
(i) the Actual Contribution Percentage for the Highly Compensated
Employees eligible to participate in the Plan is not more than the Actual
Contribution
24
<PAGE>
Percentage for all other Employees eligible to participate in the Plan
multiplied by 1.25; or
(ii) the excess of the Actual Contribution Percentage for the
Highly Compensated Employees eligible to participate in the Plan over the
Actual Contribution Percentage for all other Employees eligible to
participate in the Plan is not more than two (2) percentage points, and the
Actual Contribution Percentage for the Highly Compensated Employees
eligible to participate in the Plan is not more than the Actual
Contribution Percentage for all other Employees eligible to participate in
the Plan multiplied by two (2).
All determinations required under this subsection (a) shall be made by
the Plan Administrator and its determinations shall be final and binding
on all persons.
(b) For purposes of subsection (a) above, the "Actual Contribution
Percentage" for a specified group of Employees for a Plan Year shall be the
average of the ratios (calculated separately for each Employee in such group and
expressed as a percentage) of (i) Employer Matching Contributions actually paid
over to the Plan on behalf of the Employee for such Plan Year to (ii) the
Employee's "total compensation" for the Plan Year (as defined in Section 4.01(d)
above). To the extent permitted by applicable regulations, the Plan
Administrator may include the Basic and/or Voluntary Tax-Deferred Contributions
of a Participant who is not a Highly Compensated Employee in determining his
Actual Contribution Percentage, to the extent that such contributions are not
used in determining his Actual Deferral Percentage under Section 4.01. If the
Employer elects to make Qualified Nonelective Contributions to the Plan, the
Plan Administrator may also include any such
25
<PAGE>
contributions allocated to a Participant's Tax-Deferred Account in determining
the Participant's Actual Contribution Percentage.
(c) In determining the contribution percentage of a Highly Compensated
Employee who has a Family Member who is an Employee, the Employer Matching
Contribution made on behalf of and the "total compensation" of such Highly
Compensated Employee shall include the Employer Matching Contributions and
"total compensation" of his Family Member, and the Family Member shall not be
considered a separate Employee for purposes of determining the Actual
Contribution Percentage for any group under the Plan to the extent required by
Section 414(q) of the Code and the regulations promulgated thereunder.
(d) If the Plan satisfies the requirements of Section 401(m),
401(a)(4) or 410(b) of the Code (other than the average benefit percentage test)
only if aggregated with one or more other qualified plans, or if one or more
other plans satisfy such requirements only if aggregated with this Plan, then
this Section 4.02 shall be applied by determining the Actual Contribution
Percentage of Employees as if all such plans were a single plan. Notwithstanding
the above requirements, for Plan Years beginning after December 31, 1989, plans
may be aggregated to satisfy Section 401(m) of the Code only if they have the
same Plan Year.
(e) If, for any Plan Year, the Plan Administrator determines that the
Actual Contribution Percentage for the Highly Compensated Employees exceeds the
limitation set forth in Subsection (a) above, the Plan Administrator shall
direct the Trustee to distribute to the Highly Compensated Employees, in order
of their contribution percentages beginning with the highest of such
percentages, the amount of their Employer Matching
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Contributions necessary to cause the Plan to meet such limitation. Such Employer
Matching Contributions shall be adjusted for income or loss allocable thereto in
accordance with Section 4.02(f) below, and shall be distributed to the Highly
Compensated Employee on whose behalf such contributions were made as soon as
practicable but no later than December 31 of the following Plan Year.
Notwithstanding the foregoing, if a Highly Compensated Employee is not vested in
the amount of Employer Matching Contributions to be distributed to him pursuant
to the foregoing sentence, such amount shall not be distributed to him and shall
be forfeited as of the last day of the Plan Year and used to reduce future
Employer Matching Contributions.
(f) The income or loss allocable to a Participant's Employer Matching
Contributions which exceed the limitation set forth in subsection (a) above
shall be determined by multiplying the investment gain or loss of such
Participant's Employer Account by a fraction. The numerator of this fraction is
the amount of the Participant's excess Employer Matching Contributions to be
distributed and the denominator is the amount credited to the Participant's
Employer Account as of the beginning of the Plan Year, increased by the Employer
Matching Contributions allocable to such account for such Plan Year.
4.03 QUALIFIED NONELECTIVE CONTRIBUTIONS AND MULTIPLE USE
TEST.
(a) The Employer may elect to make Qualified Nonelective
Contributions, which shall be considered, to the extent necessary, in conducting
the nondiscrimination tests of Sections 4.01 and 4.02. Such contributions (i)
may be made as a uniform percentage of Compensation or as a uniform dollar
amount contributed on a per capita basis, (ii) may be
27
<PAGE>
made for all or certain of those Participants who are not Highly Compensated
Employees, and (iii) may be made at any time prior to the end of the twelve (12)
month period immediately following the Plan Year to which such contributions
relate. Qualified Nonelective Contributions under this Section shall be
allocated to the appropriate Participants' Tax-Deferred Accounts which shall be
fully vested and nonforfeitable at all times.
(b) The Voluntary Tax-Deferred Contributions, Basic Tax-Deferred
Contributions, and Employer Matching Contributions of a Highly Compensated
Employee shall be further reduced and returned to such Employee to the extent
necessary to comply with rules and regulations of the Internal Revenue Service
promulgated to prevent the multiple use of the alternative limitation set forth
in Section 4.01(c)(ii) and Section 4.02(a)(ii).
(c) To the extent permitted by Treasury regulations, the Plan
Administrator may restructure the Plan into component plans for purposes of
conducting the nondiscrimination tests of Sections 4.01 and 4.02.
4.04 LIMITATIONS ON ANNUAL ADDITIONS.
(a) All annual additions made under the provisions of
Article III or this Article IV with respect to any Participant in any Limitation
Year shall be limited to the lesser of:
(i) $30,000 (or, if greater, one-fourth of the defined benefit
dollar limitation as set forth in Section 415(b)(1) of the Code, as
adjusted beginning in 1988 pursuant to Section 415(d) of the Code), or
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(ii) 25% of the Participant's compensation (determined in
accordance with Treasury Regulations Section 1.415-2(d)(11)(ii)) for such
Limitation Year.
For purposes of this Section 4.03, the term "annual addition" shall mean
the sum of:
(A) Basic Tax-Deferred Contributions and Voluntary
Tax-Deferred Contributions, excluding amounts returned to the
Participant pursuant to Section 4.01(i), plus
(B) Employer Matching Contributions plus forfeitures,
including amounts forfeited or returned to the Participant pursuant to
Section 4.02, plus
(C) Qualified Nonelective Contributions.
In any case where a Participant is, or has been, included in a
tax-qualified defined benefit plan of the Employer or any Affiliated Company,
the sum of such Participant's defined benefit plan fraction and defined
contribution plan fraction shall not exceed one (1) for any Limitation Year, and
the annual additions to such Participant's accounts under this Plan shall be
further limited to the extent necessary to comply with such combined plan limit.
The defined benefit plan fraction of a Participant for any Limitation Year
is a fraction, the numerator of which is the projected annual normal retirement
benefit of such Participant under such defined benefit plan determined as of the
close of such Limitation Year and the denominator of which is the lesser of:
(i) the product of 1.25 multiplied by the dollar limitation in
effect for such Limitation Year under Section 415(b)(1)(A) of the Code; or
29
<PAGE>
(ii) the product of 1.4 multiplied by such Participant's highest
three (3) years' average compensation (as defined by Section 415 of the
Code).
The defined contribution plan fraction of a Participant for any
Limitation Year is a fraction, the numerator of which is the aggregate amount as
of the close of such Limitation Year of the annual additions credited to such
Participant's accounts under the Plan and the denominator of which is the sum of
the lesser of the following amounts determined for such Limitation Year and each
prior Limitation Year of Service with the Employer or any Affiliated Company:
(i) the product of 1.25 multiplied by the dollar limitation in
effect for the Limitation Year under Section 415(c)(1)(A) of the Code; or
(ii) the product of 1.4 multiplied by 25% of such Participant's
total compensation (determined in accordance with Treasury Regulations
Section 1.415-2(d)(11)(ii)) for the Limitation Year.
If the foregoing limit is applicable to a Participant for a Limitation Year, the
Plan Administrator shall reduce the annual additions to his accounts in the
following order of priority:
(1) against the Basic Tax-Deferred Contributions and
Voluntary Tax-Deferred Contributions made on behalf of such
Participant, the amount of such reduction to be held unallocated and
applied to reduce future Basic Tax-Deferred Contributions and
Voluntary Tax-Deferred Contributions under the Plan in the
succeeding Limitation Year;
(2) against the Employer Matching Contributions (including
forfeitures) made on behalf of the Participant, the amount of such
reduction to
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<PAGE>
be held unallocated and applied to reduce Employer
Matching Contributions to the Plan in the succeeding Limitation Year;
and
(3) the Plan Administrator may elect from time to time to
return the Basic Tax-Deferred Contributions and Voluntary Tax-Deferred
Contributions to the Participant.
For purposes of this Section 4.04, the Limitation Year shall be the Plan
Year.
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ARTICLE V
WITHDRAWALS PRIOR TO TERMINATION OF EMPLOYMENT
----------------------------------------------
5.01 WITHDRAWALS FROM TAX-DEFERRED ACCOUNTS AND VOLUNTARY ACCOUNTS.
A Participant may, at any time prior to the distribution of
his Tax-Deferred Account and Voluntary Account, request to withdraw a cash
amount from such accounts. The maximum amount which a Participant may withdraw
from his Tax-Deferred Account and Voluntary Account pursuant to the rules of
this Section 5.01 shall not exceed the sum of the amount of his Basic
Tax-Deferred Contributions (no earnings) standing to the credit of his
Tax-Deferred Account as of December 31, 1989 (less any subsequent withdrawals)
and his Voluntary Tax-Deferred Contributions plus, after the Participant has
attained age 59-1/2, the earnings attributable to such amounts. The
Participant's request to withdraw must be made in writing to the Plan
Administrator and such request shall specify the amount requested, the reason
for the withdrawal and such additional information as the Plan Administrator
shall require.
The withdrawal of any amount from a Participant's Tax-Deferred Account and
Voluntary Account shall be subject to the consent of the Plan Administrator. The
basis for the Plan Administrator consenting or refusing to consent to the
Participant's request shall be its determination that the requested withdrawal
is necessary to allow such Participant to meet an immediate and heavy financial
need which such Participant is not able to meet from any other reasonably
available resources. The foregoing standard shall be applied by the Plan
Administrator so as to conform to the requirements of Section 401(k) of the
Code. Notwithstanding the foregoing, a Participant who has attained age 59-1/2
may withdraw a cash amount equal to all or a specified portion of his Basic
Tax-Deferred Contributions and
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Voluntary Tax-Deferred Contributions, including earnings, without the need to
seek the consent of the Plan Administrator. A distribution shall be deemed to
be made on account of an immediate and heavy financial need of the Participant
if the distribution is on account of:
(a) Medical expenses described in Section 213(d) of the Code incurred
by the Participant, his spouse or his dependents, or expenses necessary for
these persons to obtain medical care;
(b) Purchase (excluding mortgage payments) of a principal residence
of the Participant;
(c) Payment of tuition and related educational fees for the next
twelve (12) months of post-secondary education for the Participant, his
spouse or his dependents;
(d) The need to prevent eviction of the Participant from his
principal residence or foreclosure on the mortgage of the Participant's
principal residence; or
(e) Any other circumstance deemed by the Internal Revenue Service to
be an immediate and heavy financial need for purposes of Section 401(k) of
the Code.
If a Participant has an immediate and heavy financial need as described
above, he may receive a hardship withdrawal not in excess of the amount of the
immediate and heavy financial need (including amounts necessary to pay any
federal, state or local income taxes or penalties reasonably anticipated to
result from the distribution) provided the Plan Administrator determines that
such Participant is not able to meet such need from any other reasonably
available resources. In determining that such Participant is not able to meet
such financial hardship from any other sources, the Plan Administrator may
reasonably rely upon the written certification of the Participant given in
accordance with the regulations promulgated under Section 401(k)
of the Code.
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<PAGE>
5.02 RESUMPTION OF VOLUNTARY TAX-DEFERRED CONTRIBUTIONS.
Any Participant who makes a withdrawal in accordance with this Article V shall
be prohibited from making Voluntary Tax-Deferred Contributions for a period of
twelve (12) months. After the expiration of such period, the Participant may
elect to resume Voluntary Tax-Deferred Contributions in accordance with the
rules set forth in Section 3.04. Amounts withdrawn by a Participant may not be
returned to this Plan.
5.03 PROCEDURE FOR WITHDRAWAL. Each withdrawal pursuant to Section
5.01 shall be made as soon as practicable following the date the Trustee
receives from the Plan Administrator such written notice of withdrawal as shall
be required by the Trustee. The amount to be so withdrawn shall be that
specified in such written notice and shall be limited by the provisions of
Section 5.01. In no event will a Participant be allowed to withdraw any portion
of his Rollover Account or Employer Account prior to the date of the termination
of his employment.
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ARTICLE VI
VESTING, SEVERANCE FROM SERVICE AND FORFEITURES
-----------------------------------------------
6.01 VESTING.
(a) A Participant shall at all times be 100% vested in his
Tax-Deferred Account, Voluntary Account and Rollover Account.
(b) A Participant's interest in his Employer Account shall become
100% vested at the earliest of the following dates
(i) The date the Participant has completed five (5) years of
Service.
(ii) The date of the Participant's Normal Retirement Date.
(iii)The date of the Participant's death.
(iv) The date the Participant incurs a Disability.
(v) The date of termination of this Plan.
6.02 SEVERANCE FROM SERVICE. Upon a Participant's Severance from Service
from the Employer, he may make a written request to the Plan Administrator for
an immediate single sum cash payment equal to the value of his Tax-Deferred
Account, Voluntary Account and Rollover Account and, if he is vested pursuant to
Section 6.01(b), his Employer Account. The Participant may also elect to receive
distribution of his account balances in any other form set forth in Article VII.
The value of such accounts shall be determined as of a Valuation Date selected
by the Plan Administrator which shall apply on a uniform basis to all
Participants in the same circumstances. Notwithstanding the foregoing, if the
value of the Participant's aggregate vested interest in his accounts under the
Plan is not more than $3,500 upon his Severance from Service (or at the time of
any prior distribution to him under the Plan), the Plan Administrator shall make
an immediate single sum cash
35
<PAGE>
payment to such Participant in an amount equal to such value whether or not the
Participant requests such distribution.
Payment of such accounts shall be made as soon as practicable after the
Trustee receives from the Plan Administrator such written notice of early
distribution as shall be required by the Trustee.
Notwithstanding the foregoing, any distributions made pursuant to this
Section shall be subject to the requirements of Section 9.06.
6.03 FORFEITURES.
(a) If a Participant's Severance from Service from the Employer occurs
prior to any of the dates referenced in Section 6.01(b), he shall forfeit the
value of his Employer Account as of the Forfeiture Date. The value of such
account shall be determined as of such Forfeiture Date and, except as provided
in Article XII hereof, any amounts so forfeited by Participants shall be used to
offset future Employer Matching Contributions under the Plan.
(i) If such a Participant subsequently resumes employment with
the Employer before incurring five (5) consecutive Breaks in Service, the
amount previously forfeited from his Employer Account shall be restored to
such account as soon as administratively practical after the Participant is
reemployed. The Employer shall make an additional contribution to the Plan
with respect to the Plan Year of such reemployment to the extent necessary
to effect such restoration.
(ii) If such a Participant subsequently resumes employment with the
Employer after incurring five (5) consecutive Breaks in Service, any
amounts previously forfeited shall not be restored.
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<PAGE>
(b) If a fully vested Participant incurs a Severance from Service from
the Employer and he subsequently resumes active employment with the Employer
prior to receiving a distribution of his Employer Account, such Participant
shall continue to be fully vested in such account on his date of reemployment.
37
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ARTICLE VII
DISTRIBUTIONS AT RETIREMENT, DEATH OR DISABILITY
------------------------------------------------
7.01 DISTRIBUTIONS AT RETIREMENT. A Participant shall, as of his retirement
on or after his Normal Retirement Date, be entitled to a distribution of his
accounts. The value of his accounts for this purpose shall be determined as of a
Valuation Date selected by the Plan Administrator which shall apply on a uniform
basis to all Participants in the same circumstances.
A Participant may elect to receive his account balances as an immediate
single sum cash payment or as a series of substantially equal annual cash
payments over a period of five (5) or ten (10) years. If no such election is
filed, distribution will be made in an immediate single sum cash payment to the
Participant. Payment of such account balances shall be made, or annual payments
shall begin, as soon as practicable after the Trustee receives from the Plan
Administrator such written notice of distribution as shall be required by the
Trustee. In the event the Participant elects annual payments, his accounts shall
be revalued at least annually to reflect the distributions made and any interest
earned on his remaining account balances.
Notwithstanding the foregoing, if the value of a Participant's aggregate
vested interest in his accounts under the Plan is not more than $3,500 upon his
Normal Retirement Date, or the date he incurs a Disability (whichever is
applicable), or at the time of any prior distributions to him from the Plan, the
Plan Administrator shall make an immediate single sum cash payment to such
Participant in an amount equal to such value whether or not the Participant
consents to such distribution.
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7.02 DISTRIBUTIONS UPON INCURRING DISABILITY. If a Participant should incur
a Disability prior to his Normal Retirement Date, he may elect by written notice
to the Plan Administrator to receive a distribution in accordance with Section
7.01 at any time after the date he incurs the Disability and prior to his Normal
Retirement Date (provided he is then living). If no such election is filed,
distribution will be made in accordance with Section 7.01 as of the disabled
Participant's Normal Retirement Date. Notwithstanding the foregoing,
distribution under this Section 7.02 shall not be made to a Participant who is
receiving long term disability benefits under any long term disability plan
maintained by the Employer or any Affiliated Company until the earlier of the
Participant's Normal Retirement Date or the date such disability benefit
payments cease.
7.03 DISTRIBUTIONS AT DEATH.
(a) If a Participant should die prior to distribution of his entire
accounts under the Plan, any amount credited to his accounts as of his date of
death (or the undistributed vested balance of his accounts in the case of a
terminated or retired Participant) shall be paid in a single sum cash payment to
his Beneficiary as soon as administratively practicable after the Valuation Date
coincident with the date the Participant's death is reported to the Committee.
If the Beneficiary is the Participant's surviving spouse, distribution shall be
made within 90 days of the Participant's death if reasonably practicable, and
otherwise as soon as administratively practicable. If the Participant had
attained his Normal Retirement Date prior to his death, distribution shall be
made no later than 60 days following the close of the Plan Year in which his
death occurs.
(b) Each Participant may designate, at such time and in such manner as
the Committee shall prescribe, a Beneficiary or Beneficiaries to receive any
amount distributable
39
<PAGE>
under the Plan after the death of the Participant. Notwithstanding the
foregoing, a Participant's sole Beneficiary shall be his surviving spouse, if
the Participant has a surviving spouse, unless the Participant has designated
another Beneficiary with the written consent of such spouse (in which consent
such Beneficiary is specified by name or class, and the effect of such consent
is acknowledged) witnessed by a notary public or Plan representative. Any such
consent shall be irrevocable. The Committee may, in its sole discretion, waive
the requirement of spousal consent if the Committee is satisfied that the spouse
cannot be located, or if the Participant can show by court order that he has
been abandoned by the spouse within the meaning of local law, or if otherwise
permitted under applicable regulations.
(c) A Participant may, from time to time in such manner as the
Committee shall prescribe, change his designated Beneficiary or Beneficiaries,
but any such designation which has the effect of naming a person other than the
surviving spouse as sole Beneficiary is subject to the spousal consent
requirement of subsection (b) above.
(d) If a Participant has failed effectively to designate a Beneficiary
to receive the Participant's remaining account balances upon his death, or a
Beneficiary previously designated has predeceased the Participant and no
alternative designation has become effective, such account balances shall be
distributed to any one or more of the surviving members of the Participant's
relatives in the following order of preference: spouse, or in equal shares to
his children, grandchildren, or parents, or his estate.
7.04 LOANS TO PARTICIPANTS. Effective October 1, 1993, upon written
application of an active Participant, the Committee may direct the Trustee to
lend to the Participant such amount or amounts as the Committee may determine
proper from the
40
<PAGE>
Participant's accounts in the Plan (other than his Employer Account), provided
that the aggregate amount of all outstanding loans from this Plan and from any
other qualified plan maintained by the Employer or an Affiliated Company,
including accrued interest thereon, shall not exceed the lesser of (a) $50,000,
reduced by any loan repayment made during the one (1) year period ending on the
day before the date such loan is made, (b) 50% of the Participant's vested
interest in his accounts (determined at the time the loan is made), or (c) the
Participant's total account balance less the Employer Account balance.
Each loan to Participants shall meet the following requirements:
(i) Loans shall be made available to all Participants on a reasonably
equivalent basis.
(ii) Loans shall not be made available to Highly Compensated Employees
in an amount greater than the amount made available to other Participants.
(iii) Loans shall be evidenced by the promissory notes of the
Participants, shall be adequately secured and shall bear a reasonable
interest rate. No more than 50% of the vested portion of the Participant's
accounts may be used as security for a loan.
(iv) In the event of default, foreclosure on the note and attachment
of security will not occur until a distributable event occurs under the
Plan.
(v) Each loan shall by its terms require that repayment (principal and
interest) be amortized in level payments, not less frequently than
quarterly, over a period not extending beyond five (5) years from the date
of the loan. If the loan is used to acquire any dwelling unit which within
a reasonable time is to be used
41
<PAGE>
(determined at the time such loan is made) as a principal residence of the
Participant, then the repayment period shall not extend beyond 15 years.
(vi) The minimum loan amount shall be $1,000 and no Participant may
have more than two (2) outstanding loans from this Plan and any other
qualified plan maintained by the Employer or an Affiliated Company at any
time.
(vii) Each such loan shall be administered in accordance with the
Plan's participant loan policy.
Each such loan shall be deemed to be an investment made at the direction of
such Participant and shall be credited to the separate investment account of the
borrowing Participant. The Participant's accounts (other than his Employer
Account) shall be reduced to the extent necessary to permit the establishment of
a separate loan account for such Participant in the following order:
Tax-Deferred Account, Rollover Account and Voluntary Account. The reduction from
the Investment Funds in each account shall be made on a pro rata basis. All
interest and loan repayments, adjusted for administrative expenses, shall be
credited to such Member's separate loan account. Amounts credited to such
Member's separate loan account as a result of payments of interest and principal
shall be credited to the Participant's accounts in the inverse order used to
fund the loan and shall be reinvested as soon as practicable in the Plan's
Investment Funds in accordance with the investment election of the Participant
for new contributions currently on file with the Committee.
If any part or all of the amount standing to one or more of the
Participant's accounts under the Plan shall become distributable to such
Participant or his Beneficiary while a loan to such Participant under this
Section 7.04 is outstanding, the Committee shall direct the Trustee to apply the
amount of such distribution in payment of the entire outstanding loan
42
<PAGE>
principal, whether or not then due, and any interest theretofore accrued, before
distributing the balance, if any, to the Participant or his Beneficiary.
ARTICLE VIII
ADMINISTRATION
--------------
8.01 ALLOCATION OF RESPONSIBILITY. The Board of Directors of the Employer
and the Plan Administrator shall have only those specific powers, duties,
responsibilities and obligations as are specifically given them under this Plan
and the trust agreement. In general, the Board of Directors of the Employer
shall have the sole responsibility for the appointment of the Retirement
Committee. The Board of Directors of the Employer and the Plan Administrator
shall each warrant that any directions given, information furnished or action
taken shall be in accordance with the provisions of this Plan authorizing or
providing for such direction, information or action.
8.02 APPOINTMENT OF PLAN ADMINISTRATOR. The Plan shall be
administered by a Retirement Committee which shall consist of three or more
members. Such members shall be appointed by and serve at the pleasure of the
Board of Directors of Grinnell Corporation. All usual and reasonable expenses of
the Committee shall be paid by the Employer. Any members of the Committee who
are Employees of the Employer shall not receive compensation with respect to
their services on the Committee. Any such Employee member shall not be precluded
from participating in this Plan, but shall not be permitted to make any decision
or take any action with respect to his own participation in the Plan.
Any action taken by the Committee shall be by majority rule of the members
of the Committee. The Committee may delegate to any one of their number
authority to sign
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documents on behalf of the Committee, or to perform ministerial acts, but no
person to whom such authority is delegated shall perform any act involving the
exercise of discretion without first obtaining the approval of the Committee.
Any member of the Committee may resign at any time by providing the Board of
Directors of Grinnell Corporation with written notice of his intent to resign.
Such Board of Directors may remove any member of the Committee at any time by
providing such member with written notification of his removal.
8.03 CLAIMS PROCEDURE. The Plan Administrator shall make all determinations
as to the right of any person to a benefit. Any denial by the Plan Administrator
of the claim for benefits to a Participant, former Participant or Beneficiary
under the Plan shall be stated in writing by it and delivered or mailed to the
Participant, former Participant or Beneficiary; and such notice shall set forth
the specific reasons for the denial, written to the best of its ability in a
manner that may be understood without legal or actuarial counsel.
Any person whose claim has been denied shall have the opportunity to appeal
such denial by written notification to the Plan Administrator within 60 days
following receipt of notice of denial. Within 60 days following receipt of such
written appeal, the Plan Administrator shall transmit written notification of
its decision regarding the appeal to said person, provided, however, that if the
Plan Administrator determines a hearing shall be necessary, such 60 day period
shall be extended to 120 days.
8.04 RECORDS AND REPORTS. The Plan Administrator shall exercise such
authority and responsibility as it deems appropriate in order to comply with
ERISA, and governmental regulations issued thereunder relating to records of
Participants' Service, benefits and the percentage of such benefits which are
nonforfeitable under the Plan;
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notifications to Participants; periodic registration with the Internal Revenue
Service; and annual reports to the Internal Revenue Service and/or the
Department of Labor.
8.05 POWERS AND DUTIES OF THE PLAN ADMINISTRATOR. The Plan
Administrator shall have such duties and powers as may be necessary to discharge
its duties hereunder, including, but not limited to, the following:
(a) To construe and interpret the Plan, decide all questions of
eligibility and determine the amount and time of payment of any benefits
hereunder;
(b) To prescribe procedures to be followed by Participants, former
Participants or Beneficiaries in filing applications for benefits;
(c) To prepare and distribute, in such manner as it determines to be
appropriate, information explaining the Plan;
(d) To receive from the appropriate sources such information as
shall be necessary for the proper administration of the Plan;
(e) To appoint or employ individuals to assist in the administration
of the Plan and any other agents it deems advisable, including legal
counsel;
(f) To select appropriate investment vehicles, including fixed
interest contracts, to constitute the Investment Funds under the Trust for
the investment of plan assets, to permit Participants to direct investment
of their account balances in the Investment Funds, and to prescribe rules
and procedures relating to such directed investment; and
(g) To enter into any and all contracts, fixed interest contracts, and
agreements for carrying out the terms of the Plan and the administration
thereof, to select the Investment Funds available under the Trust and to do
all acts as the Plan
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Administrator, in its sole discretion, may deem
necessary or appropriate, and all such contracts, agreements, and acts
shall be binding and conclusive on the parties hereto and on the Employees
involved.
Except as provided by Section 10.02, the Plan Administrator shall have no
power to add to, subtract from or modify any of the terms of the Plan, or to
change or add to any benefits provided by the Plan, or to waive or fail to apply
any requirements of eligibility for a benefit under the Plan.
8.06 RULES AND DECISIONS. The Plan Administrator may adopt such rules as it
deems necessary, desirable, or appropriate. All rules and decisions of the Plan
Administrator shall be uniformly and consistently applied to all Participants in
similar circumstances. When making a determination or calculation, the Plan
Administrator shall be entitled to rely upon information furnished by a
Participant or Beneficiary, the legal counsel of the Employer, the insurance
company, or the Trustee.
8.07 AUTHORIZATION OF BENEFIT PAYMENTS. The Plan Administrator shall
issue directions to the appropriate party, including the Trustee, concerning the
payment of all benefits which are to be paid from the assets of the Plan, and
warrants that all such directions are in accordance with the provisions of this
Plan.
8.08 APPLICATION AND FORMS FOR BENEFITS. The Plan Administrator may
require a Participant or Beneficiary to complete and file with it an application
for benefits and all other forms approved by it and furnish all pertinent
information requested by it, including the Participant's or Beneficiary's
current mailing address.
8.09 FACILITY OF PAYMENT. Whenever, in the Plan Administrator's opinion, a
person entitled to receive any benefit hereunder is under a legal disability or
is
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incapacitated in any way so as to be unable to manage his financial affairs, the
Plan Administrator may cause payments otherwise payable to such person to be
made to such person's legal representative for his benefit. Any payment of
benefits in accordance with the provisions of this Section 8.09 shall be a
complete discharge of any liability for the making of such payment under the
provisions of this Plan. In the event that a person entitled to receive any
benefit hereunder cannot be located after reasonable efforts of the Plan
Administrator, such person's benefit shall be forfeited, and shall be reapplied
in such a way as to offset future Employer Matching Contributions under this
Plan; provided, however, that if such person subsequently files a claim for
benefit with the Plan Administrator, such benefit shall be restored (by a
special Employer contribution) to the value previously forfeited.
8.10 COMPENSATION OF PLAN ADMINISTRATOR AND PLAN EXPENSES.
The Plan Administrator shall serve without compensation for services as such,
but all expenses of the Plan Administrator in administering the Plan shall
constitute a charge upon the Trust, unless paid by the Employer in its sole
discretion. Such expenses shall include any expenses incident to the functioning
of the Plan and Trust, including, but not limited to, attorneys' fees, fidelity
bonding, accounting and clerical charges, trustee fees, plan investment costs,
recordkeeping fees, consultants' fees and other costs of administering the Plan
and Trust.
8.11 INDEMNIFICATION. The Employer shall indemnify and hold harmless each
member of the Committee from and against any and all claims, losses, damages,
expenses (including reasonable attorneys' fees approved by the Employer) and
liability (including any reasonable amounts paid in settlement with the
Employer's approval) arising from any act or
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omission of such member, except when the same is judicially determined to be due
to the willful misconduct of such member.
ARTICLE IX
MISCELLANEOUS
-------------
9.01 NONGUARANTEE OF EMPLOYMENT. Nothing contained in this Plan shall be
construed as a contract of employment between the Employer and any Employee, or
as a right of any Employee to be continued in the employment of the Employer, or
as a limitation of the right of the Employer to discharge any of its Employees,
with or without cause.
9.02 RIGHTS OF EMPLOYEES AND BENEFICIARIES. No Employee or
Beneficiary shall have any right to or interest in any assets of the Plan upon
termination of his employment or otherwise, except as provided from time to time
under this Plan, and then only to the extent of the benefits payable under the
Plan to such Employee or Beneficiary out of such assets. All payments of
benefits as provided for in this Plan shall be made solely out of Plan assets.
9.03 NONALIENATION OF BENEFITS. Benefits payable under this Plan shall not
be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, charge, garnishment, execution, or levy of any
kind, either voluntary or involuntary, including any such liability which is for
alimony or other payments for the support of a spouse or former spouse, or for
any other relative of the Employee, prior to actually being received by the
person entitled to the benefit under the terms of the Plan; and any attempt to
anticipate, alienate, sell, transfer, assign, pledge, encumber, charge or
otherwise dispose of any right to benefits payable hereunder
shall be void; and the Plan
48
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assets shall not in any manner be liable for, or subject to, the debts,
contracts, liabilities, engagements or torts of any person entitled to benefits
hereunder; provided, however, that nothing herein shall restrict or prohibit the
creation, assignment, or recognition of a right to any benefit payable with
respect to a Participant pursuant to a "qualified domestic relations order"
(within the meaning of Sections 401(a)(13)(B) and 414(p) of the
Code).
9.04 DISCONTINUANCE OF EMPLOYER CONTRIBUTIONS. In the event of
permanent discontinuance of contributions to the Plan by the Employer, the
accounts of all Participants shall, as of the date of such discontinuance,
become fully vested.
9.05 REVERSION TO EMPLOYER. The Employer has no beneficial
interest in the Plan assets and no part of the Plan assets shall ever revert or
be repaid to the Employer, directly or indirectly, except that
(a) if a contribution is made by the Employer to the Plan by mistake
of fact, such contribution may be returned to the Employer within one (1) year
from the date the contribution is made, or
(b) if the Employer is denied a Federal income tax deduction with
respect to all or any portion of its contribution to the Plan, such contribution
(to the extent disallowed) shall be returned to the Employer within one (1) year
from the date of disallowance, it being the intent that all contributions to the
Plan by the Employer shall be so deductible.
9.06 COMMENCEMENT AND TIMING OF DISTRIBUTIONS.
(a) Any distribution to be made under this Plan to any Participant
shall be made no later than the 60th day following the close of the Plan Year in
which the Participant reaches his Normal Retirement Date or terminates
employment, whichever is later.
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(b) Any distribution to be made under this Plan to a Participant shall
begin no later than the April 1 following the close of the calendar year in
which such Participant attains age 70-1/2 (the "Required Beginning Date").
(c) If the value of a terminated Participant's aggregate vested
interest in his accounts exceeds $3,500, distribution may not be made to such
Participant without his written consent. Distribution may commence less than 30
days after the notice required under Section 1.411(a)-11(c) of the Income Tax
Regulations is given, provided that (i) the Plans Adminstrator clearly informs
the Participant that the Participant has a right to a period of at least 30 days
after receiving the notice to consider the decision of whether or not to elect a
distribution, and (ii) the Participant, after receiving the notice,
affirmatively elects a distribution. A Participant may also choose to delay the
receipt of his distribution but in no event shall a distribution commence later
than his Required Beginning Date. The value of the Participant's accounts
subject to distribution pursuant to this Section 9.06 shall be determined as of
a Valuation Date selected by the Plan Administrator which shall apply on a
uniform basis to all Participants in the same circumstances.
(d) Notwithstanding any other provision of the Plan, a Participant's
Tax-Deferred Account and Voluntary Account shall not be distributable prior to
his separation from service, Disability, death or attainment of age 59-1/2,
except (i) in cases of hardship as provided in Section 5.01 of the Plan, (ii)
upon termination of the Plan without establishment or maintenance of another
defined contribution plan (other than an employee stock ownership plan as
defined in Section 4975(e)(7) of the Code), (iii) upon disposition by the
Employer or an Affiliated Company of substantially all of the assets used by
such corporation in a trade or business, in the case of a Participant who
continues employment with the corporation
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acquiring such assets, or (iv) disposition by an Employer or Affiliated Company
of such corporation's interest in a subsidiary, with respect to a Participant
who continues employment with such subsidiary. No distribution shall be
authorized by clauses (ii), (iii) or (iv) above, unless the distribution
qualifies as a "lump sum distribution" within the meaning of section
401(k)(10)(B) of the Code.
(e) In the event a Participant dies before his Required Distribution
Date, his entire interest shall be paid to his Beneficiary in a lump sum no
later than December 31 of the calendar year containing the fifth (5th)
anniversary of the Participant's death; provided, however, that if the
Beneficiary is the Participant's spouse, the spouse may elect an annuity form of
payment which shall commence no later than December 31 of the calendar year in
which the Participant would have attained age 70 1/2.
If a Participant dies on or after his Required Distribution Date, the
Participant's remaining interest in the Plan shall be distributed at least as
rapidly as under the method of distribution being used as of the date of death.
(f) If, and to the extent that, any portion of a Participant's vested
account balances is payable to a former spouse or dependent pursuant to a
qualified domestic relations order within the meaning of Sections 401(a)(13)(B)
and 414(p) of the Code, the provisions of said order shall govern the
distribution thereof. Such an order may provide for payments to a former spouse
or dependent even though the Participant is still employed by the Employer or is
otherwise not eligible for the distribution of benefits under the Plan.
9.07 JURISDICTION. This Plan shall be construed in accordance with the laws
of the jurisdiction of the State of New Hampshire except to the extent to which
said laws are superseded by Federal law.
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9.08 LEASED EMPLOYEES. A "leased employee" shall receive credit for Hours
of Service and years of Service for the entire period during which he is a
leased employee of the Employer as if he were an Employee of the Employer;
provided, however, that a leased employee shall not be an Eligible Employee for
purposes of participation in the Plan as long as he remains a leased employee.
For purposes of this Section 9.08, the term "leased employee" means any person
(a) who is not an Employee of the Employer and (b) who pursuant to an agreement
between the Employer and any other person (a "leasing organization") has
performed services for the Employer of a type historically performed by
employees in the business field of the Employer on a substantially full-time
basis for a period of at least one (1) year. Notwithstanding the foregoing, if
leased employees constitute less than 20% of the Employer's non-highly
compensated work force within the meaning of Section 414(n)(5) of the Code, a
person who is covered by a money purchase pension plan maintained by the leasing
organization which provides a nonintegrated employer contribution rate of at
least ten percent (10%) of compensation, immediate participation and full and
immediate vesting shall not be considered a "leased employee."
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ARTICLE X
AMENDMENTS AND ACTION BY EMPLOYER
---------------------------------
10.01 AMENDMENTS. The Employer reserves the right to make from time to time
any amendment or amendments to this Plan which do not cause any part of the
assets of the Plan to be used for, or diverted to, any purpose other than the
exclusive benefit of Participants or their Beneficiaries; provided, however,
that the Employer may make any amendment it determines necessary or desirable,
with or without retroactive effect, to comply with the requirements of the Code
or of any other pertinent provision of Federal or State law, or any regulation
or ruling of any duly constituted authority in connection therewith.
10.02 ACTION BY EMPLOYER. Any action by the Employer under this Plan may be
made by resolution of its Board of Directors, or by any person or persons duly
authorized by resolution of said Board to take such action. Each Employer
hereunder shall have and exercise all the rights, powers and duties thereof with
respect to the Plan as applied to itself and its employees and those assets of
the Plan which represent accounts of Participants employed by it. Each Employer
hereby delegates all such rights and powers including amendment or termination
of the Plan, to the Plan Administrator, acting alone, except as such Employer
may exercise the same for itself.
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ARTICLE XI
SUCCESSOR EMPLOYER AND MERGER
OR CONSOLIDATION OF PLANS
---------------------------
11.01 SUCCESSOR EMPLOYER. In the event of the dissolution, merger,
consolidation or reorganization of the Employer, provision may be made by which
the Plan will be continued by the successor; and, in that event, such successor
shall be substituted for the Employer under the Plan. The substitution of the
successor shall constitute an assumption of Plan liabilities by the successor
and the successor shall have all the powers, duties and responsibilities of the
Employer under the Plan.
11.02 PLAN ASSETS. In the event of any merger or consolidation of the Plan
with, or transfer in whole or in part of the assets and liabilities of the Plan
to, another plan of deferred compensation maintained or to be established for
the benefit of all or some of the Participants of this Plan, the assets of this
Plan applicable to such Participants shall be transferred to the other plan only
if
(a) each Participant would (if either this Plan or the other plan then
terminated) 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
this Plan had then terminated);
(b) resolutions of the Board of Directors of the Employer under this
Plan, or of any new or successor employer of the affected Participants, shall
authorize such transfer of assets; and in the case of the new or successor
employer of the affected Participants, its resolutions shall include an
assumption of liabilities with respect to such Participant's inclusion in the
new employer's plan; and
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(c) such other plan is qualified under Section 401(a) of the Code.
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ARTICLE XII
PLAN TERMINATION
----------------
12.01 RIGHT TO TERMINATE. In accordance with the procedures set forth in
this Article, the Employer may terminate the Plan at any time. In the event of
the dissolution, merger, consolidation or reorganization of the Employer, the
Plan shall terminate and, subject to Section 9.06(e) of the Plan, the Plan
assets shall be liquidated unless the Plan is continued by a successor to the
Employer in accordance with Section 11.01.
12.02 PARTIAL TERMINATION. Upon termination of the Plan with respect to a
group of Participants which constitutes a partial termination of the Plan, the
Plan Administrator shall allocate and segregate for the benefit of the Employees
then or theretofore employed by the Employer with respect to which the Plan is
being terminated the proportionate interest of such Participants in the Plan
assets. The assets so allocated and segregated shall be used by the Plan
Administrator to pay benefits to or on behalf of Participants in accordance with
Section 12.03.
12.03 LIQUIDATION OF THE PLAN. Upon termination or partial termination of
the Plan, the accounts of all Participants affected thereby shall become fully
vested, and the Plan Administrator shall, subject to the provisions of the
immediately following paragraph, cause the assets remaining in the Plan,
including any forfeitures which shall not have been applied to reduce Employer
Matching Contributions hereunder, to be allocated to the remaining Participants
and Beneficiaries in proportion to their respective Employer Account balances.
In the event that any service charges assessed under this Plan are due and
unpaid as of such Plan termination date, the payment of such charges shall be
satisfied (a) by deducting
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the required amount from any then unallocated Plan assets, and/or, if such
Plan assets are insufficient to pay the full required amount, (b) by
deducting a pro-rata share of the amount remaining to be paid from each
Participant's Employer Account (if necessary).
12.04 MANNER OF DISTRIBUTION. Upon termination of the Plan, the Plan
Administrator shall direct the Trustee to make distributions to the Participants
or other person or persons entitled thereto in accordance with the provisions of
Article VII, provided, however, that, subject to the provisions of Section
9.06(d) of the Plan, the Plan Administrator may proceed with such distributions
at any time after such termination but prior to the time the Participants would
otherwise become entitled thereto under the Plan.
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ARTICLE XIII
DISCHARGE OF DUTIES BY FIDUCIARIES
----------------------------------
The Board of Directors of the Employer and the Plan Administrator and any
other person who, by reason of his involvement in and under this Plan, shall be
deemed to be a fiduciary within the meaning of Title I, Section 3(21) of ERISA,
shall discharge their Plan related duties and responsibilities solely in the
interest of the Participants and their Beneficiaries and with 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 the
conduct of an enterprise of a like character and with like aims.
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ARTICLE XIV
TOP-HEAVY PROVISIONS
--------------------
14.01 GENERAL RULE. For any Plan Year for which this Plan is a
"top-heavy plan" as defined in Section 14.06 below, any other provisions of
this Plan to the contrary notwithstanding, this Plan shall be subject to the
following provisions
(1) The vesting provisions set by Section 14.02.
(2) The minimum benefit provisions set by Section 14.03.
(3) The adjustment to the combined plan limit set by Section 14.04.
14.02 VESTING PROVISIONS. Each Participant who has completed the number of
Years of Service specified in the following table shall have a nonforfeitable
right to the percentage of his Employer Account under this Plan correspondingly
specified in the following table:
Years of Percentage of
Service Nonforfeitable Benefit
------- ----------------------
2 20%
3 40%
4 60%
5 100%
14.03 MINIMUM BENEFIT PROVISIONS. Each Participant who is a non-key
employee (as defined in Section 14.07 below) shall be entitled to an Employer
contribution for such Plan Year that shall be not less than three percent (3%)
of the Participant's compensation (as determined under Section 415 of the Code)
up to the compensation limitation for the Plan Year. Tax-Deferred Contributions
and Employer Matching Contributions may not be used to satisfy the minimum
benefit requirement of this Section 14.03.
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14.04 ADJUSTMENT TO COMBINED PLAN LIMIT. In determining the
defined benefit plan fraction and the defined contribution plan fraction under
Section 4.04 above, the number 1.0 shall be substituted for the number 1.25
each place it
appears in said Section.
14.05 TOP-HEAVY PLAN DEFINITION. This Plan shall be a "top-heavy plan" for
any Plan Year if, as of the determination date (as defined in subparagraph (a)
below), the present value of the accounts under the Plan for Participants
(including former Participants) who are "key employees" (as defined in Section
14.06 below) exceeds 60% of the sum of the accounts under the Plan for all
Participants (excluding the accounts of former "key employees" and of employees
who have not performed any services for the Employer at any time during the
five-year period ending on the determination date) or if this Plan is required
to be in an aggregation group (as defined in subparagraph (b) below) which for
such Plan Year is a top-heavy group (as defined in subparagraph (c) below).
(a) "Determination date" means for any Plan Year the last day of the
immediately preceding Plan Year.
(b) "Aggregation group" means the group of plans, if any, that
includes the group of plans that are required to be aggregated
and, if the Plan Administrator so elects, the group of plans that are permitted
to be aggregated.
(i) The group of plans that are required to be aggregated (the
"required aggregation group") includes:
(A) each plan (including each terminated plan) of the
Employer and of Affiliated Companies in which a "key employee" is a
Participant, and
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(B) each other plan (including each terminated plan) of the
Employer and of Affiliated Companies which enables a plan in which a
Key Employee is a Participant to meet the requirements of either
Section 401(a)(4) or Section 410 of the Code.
(ii) The plans that are permitted to be aggregated (the "permissive
aggregation group") includes any plan that is not part of the "required
aggregation group" that the Plan Administrator certifies as constituting a
plan within the "permissive aggregation group." Such plans may be added to
the "permissive aggregation group" only if, after the addition, the
"aggregation group" as a whole continues to meet the requirements of both
Section 401(a)(4) and Section 410 of the Code.
(c) "Top-heavy group" means the "aggregation group," if as of the
applicable determination date, the sum of the present value of the accrued
benefits for "key employees" under all defined benefit plans included in the
"aggregation group" plus the aggregate of the accounts of "key employees" under
all defined contribution plans included in the "aggregation group" exceeds 60%
of the sum of the present value of the accrued benefits for all employees under
all such defined benefit plans plus the aggregate accounts for all employees
under such defined contribution plans (excluding the accrued benefit and
accounts of former "key employees" and of employees who have not performed any
services for the Employer at any time during the five-year period ending on the
determination date.)
(d) In determining whether this Plan constitutes a "top-heavy plan,"
the Plan Administrator shall follow the rules set forth in Section 416 of the
Code and regulations pertaining thereto.
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14.06 KEY EMPLOYEE. The term "key employee" means any Participant
(and any Beneficiary of a Participant) under this Plan who is a "key employee"
as determined in accordance with Section 416(i)(1) of the Code.
14.07 NON-KEY EMPLOYEE. The term "non-key employee" means any Employee
(and any Beneficiary of an Employee) who is a "non-key employee" as determined
in accordance with Section 416(i)(2) of the Code.
14.08 CHANGE FROM TOP-HEAVY STATUS. In the event the Plan should
become a "top-heavy plan" for a Plan Year and subsequently revert to a plan
which is not top-heavy, subparagraphs (a) and (b) below shall apply:
(a) The change from a "top-heavy plan" to a plan which is not
top-heavy shall not reduce a Participant's nonforfeitable right to any amount
previously credited to his Employer Account under the Plan, and any Participant
who has completed three (3) or more years of Service at the time the Plan
reverts to a plan which is not top-heavy shall continue to have his
nonforfeitable right to benefits under the Plan determined in accordance with
Section 14.02 above.
(b) The change from a "top-heavy plan" to a plan which is not
top-heavy shall not reduce a Participant's account balances.
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ARTICLE XV
DIRECT ROLLOVERS
----------------
15.01 APPLICATION OF THIS ARTICLE. This Article applies to distributions
made on or after January 1, 1993. Notwithstanding any provision of the Plan to
the contrary that would otherwise limit a distributee's election under this
Article, a distributee may elect, at the time and in the manner prescribed by
the Committee, to have any portion of an Eligible Rollover Distribution from the
Plan paid directly to an Eligible Retirement Plan specified by the distributee
in a Direct Rollover.
15.02 DEFINITIONS. Whenever used in this Article or elsewhere in the
Plan, the following words shall have the following meanings:
(a) Eligible Rollover Distribution: An Eligible Rollover Distribution
------------------------------
is any distribution of all or any portion of the balance to the credit of the
distributee, except that an eligible rollover distribution does not include: any
distribution that is one of a series of substantially equal periodic payments
(not less frequently than annually) made for the life (or life expectancy) of
the distributee or the joint lives (or joint life expectancies) of the
distributee and the distributee's designated beneficiary, or for a specified
period of ten years or more; any distribution to the extent such distribution is
required under Section 401(a)(9) of the Code; and the portion of any
distribution that is not includible in gross income (determined without regard
to the exclusion for net unrealized appreciation with respect to employer
securities).
(b) Eligible Retirement Plan: An Eligible Retirement Plan is an
------------------------
individual retirement account described in Section 408(a) of the Code, an
individual retirement annuity described in Section 408(b) of the Code, an
annuity plan described in Section 403(a) of the
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Code, or a qualified trust described in Section 401(a) of the Code, that accepts
the distributee's Eligible Rollover Distribution. However, in the case of an
Eligible Rollover Distribution to the surviving spouse, an Eligible Retirement
Plan is an individual retirement account or individual retirement annuity.
(c) Distributee: A distributee includes an Employee or former
-----------
Employee. In addition, the Employee's or former Employee's surviving spouse and
the Employee's or former Employee's spouse or former spouse who is the alternate
payee under a qualified domestic relations order, as defined in Section 414(p)
of the Code, are distributees with regard to the interest of the spouse or
former spouse.
(d) Direct Rollover: A Direct Rollover is a payment by the Plan to
---------------
the Eligible Retirement Plan specified by the distributee.
Executed this 14th day of November, 1994 by a duly authorized member of the
---- --------
Retirement Committee.
RETIREMENT COMMITTEE UNDER
THE GRINNELL CORPORATION
HOURLY RETIREMENT SAVINGS
AND INVESTMENT PLAN
By: /s/ John A. Helfrich
---------------------------
30194.b2
64
Mueller Company Decatur Plant
Retirement Savings and Investment
Plan For AIW Local 838
ADOPTION AGREEMENT 002
USE ONLY WITH BASIC
PLAN
DOCUMENT NO. 01
ADOPTION AGREEMENT
GOODWIN, PROCTER & HOAR REGIONAL PROTOTYPE NON-STANDARD
PROFIT SHARING SECTION 401(k) PLAN
1. THE EMPLOYER (Note: The term "Employer" includes all
Related Employers as defined in Section 2.12
of the Plan)
Name: Tyco Laboratories, Inc. Employer Identification
---------------------- Number:
Address: Tyco Park 04-2297459
--------- -----------------------
Exeter, NH 03833 Plan Number 027
------------------- --------
(001 or next available
number)
Nature of Business: Fiscal Year Ends:
Manufacturing 6/30
------------------- -----------------------
Type of Employer:
X corporation partnership
--- -----
sole proprietor other
--- -----
2. THE PLAN
A. The Plan or Amendment adopted by this Adoption
Agreement is effective July 1, 1992. (Should
ordinarily be the first day of a Fiscal Year.)
This adoption is (check one):
( ) An original adoption of an entirely new plan.
<PAGE>
(X) An amendment to and continuation of a plan
originally
effective September 1, 1991 and entitled Mueller
Company Decatur Plant Retirement Savings and
Investment Plan For AIW Local 838.
B. Top-Heavy status (check one):
( ) i. The Plan will always be administered as if it
were top-heavy.
( ) ii. The Employer will determine each year whether or
not the Plan is top-heavy. For purposes of
determining the top-heavy ratio, any benefit
N/A shall be discounted only for mortality and
interest based on the following (complete if you
maintain or ever maintained a defined benefit
plan):
Interest rate %
-----
Mortality table
-------------------------
Valuation date for purposes of computing the
top-heavy ratio shall be of each
----------
year.
3. PLAN YEAR, LIMITATION YEAR
The Plan Year shall be the twelve consecutive month period
ending on December 31 of each year. The Limitation Year
for all qualified plans of the Employer shall be the twelve
consecutive month period ending on December 31 of each year.
4. TRUSTEE
The Employer hereby designates the following to act as
Trustee under the Plan:
Mellon Bank, N.A.
- --------------------------------------------------------------
- --------------------------------------------------------------
5. PERMISSIBLE INVESTMENTS
The Permissible Investments shall include (check any
options you wish to elect):
( ) A. Such stocks, bonds, or other marketable
securities, including certificates of
participation or shares of any regulated mutual
<PAGE>
investment company, trust or fund, put and call
options, certain hedged covered option positions,
limited partnership interests, private letter
stock, as the Trustee from time to time selects;
provided that the Trustee shall not invest in
securities of an Employer; and that the Trustee
may hold funds of the Trust uninvested if and to
the extent it deems advisable from time to time,
and provided further that the Trustee is
authorized to commingle part or all of the assets
of the Trust in one or more trusts, including
trusts of which the Trustee is trustee, whether
now existing or hereafter created, for the
collective investment of funds held under
employees' pension or profit sharing plans or
trusts which are qualified within the meaning of
and exempt from tax under the revenue laws of the
United States, and permitted by existing or future
rulings of the United States Treasury Department
to pool their respective funds in a group trust,
in which event the instrument pursuant to which
such trust is established shall be deemed to be a
part of the Plan.
( ) B. Such guaranteed income contracts and similar
products, if any, whether issued by an insurance
company or other financial institution, as the
Trustee from time to time selects.
( ) C. Such short-term obligations from time to time
selected by the Trustee, including but not limited
to savings accounts, certificates of deposit,
variable demand notes, short-term commercial
paper, U.S. Treasury bills and notes, other
obligations with short maturities on which
interest income may vary from day to day, and
shares of mutual funds investing principally in
the foregoing.
( ) D. Such shares of one or more mutual funds or
interests in other pooled investment funds as
the Trustee from time to time selects.
(X) E. Other: Such shares of one or more mutual funds
and such guaranteed income contracts and similar
products, if any, whether issued by an insurance
company or other financial institution, as the
Plan Administrator for time to time selects.
<PAGE>
6. CONTRIBUTIONS AND FORFEITURES
(X) A. Elective Deferrals
------------------
If this paragraph is checked, Elective Deferrals
not in excess of 20% of a Member's Compensation
See shall be contributed to the Trust by the Employer
Attachment in accordance with a Salary Adjustment Agreement
with the Member.
The minimum Elective Deferrals per Member shall
be $ per week/month.
------
( ) B. Employee Contributions
----------------------
If this paragraph is checked, a Member may
contribute up to % of his Compensation to
----
the Trust on a nondeductible basis.
The minimum Employee Contributions per Member
shall be $ per week/month.
------
(X) C. Matching Contributions
----------------------
If this paragraph is checked, the Employer shall
make Matching Contributions to the Trust on behalf
of all Members who make (check (i) or (ii) or
both)
(X) (i) Elective Deferrals
( ) (ii) Employee Contributions
to the Trust.
The amount of Matching Contribution shall be
(check one or more below)
(X) (a) 200 percent of the Member's Elective
Deferrals.
( ) (b) percent of the Member's
-------
Employee Contributions.
( ) (c) such amount voted or
-------
declared by the Employer each Fiscal Year.
<PAGE>
The Employer shall not match the Member's
Elective Deferrals and/or Employee Contributions in
excess of $ 250, or in excess of percent
--- -----
of the Member's Compensation.
The Matching Contributions
( ) will (X) will not
be limited to the Employer's Net Profits.
(X) D. Employer Contributions
----------------------
See If this paragraph is checked, the Employer shall
Attachment make Employer Contributions to the Trust each
Fiscal Year in an amount determined as follows:
( ) (i) the amount voted or declared by the
Employer on account of such Fiscal Year.
( ) (ii) % of each eligible Member's
---
Compensation, plus the amount voted or
declared by the Employer on account of
such Fiscal Year.
( ) If this paragraph is checked, a Member is
eligible to share in the allocation of the
Employer Contribution for any Plan Year if he is
an Employee on the last day of the Plan Year, or
if he died, retired, became disabled during such
Plan Year, or terminated employment during such
Plan Year after being credited with more than
500 Hours of Service.
The Employer Contributions
( ) will ( ) will not
be limited to the Employer's Net Profits.
The Employer Contributions will be allocated to
each eligible Member as follows:
( ) NOT INTEGRATED: The allocation will be
made on a pro rata basis in accordance with
each eligible Member's Compensation.
( ) INTEGRATED: The allocation will be
integrated with Social Security as set
forth in Section 5.05B(b) of the Plan.
<PAGE>
( ) E. Qualified Non-Elective Contributions
------------------------------------
( ) If this paragraph is checked, in any Plan
Year in which the Plan cannot satisfy either the
ADP or ACP test, the Employer may make Qualified
Non-Elective Contributions to the Trust on behalf
of Non-Highly Compensated Employees in an amount
sufficient to enable the Plan to satisfy such
tests.
(X) F. Forfeitures
-----------
Forfeitures for each Plan Year shall be (check i
or ii)
(X) (i) applied to reduce Matching Contributions
for such Plan Year.
( ) (ii) allocated in the same manner as
Employer Contributions.
( ) G. In any year in which the Plan is or is deemed to
be top-heavy, a minimum contribution in the
amount determined under Section 14.05(a) of the
Plan is required. To avoid inappropriate
N/A omissions or duplication of minimum benefits or
contributions if the Employer maintains more than
one plan, the rules checked or specified below
shall apply (check one)
( ) (i) Minimum contributions shall be
provided in this Plan without
regard to the benefits or
contributions provided to the
Member under the Employer's other
plans (subject to the limitations
of Article XII).
( ) (ii) Any Member who is also covered
under the Employer's other defined
contribution plan and who is
employed on the last day of the
Plan Year shall receive minimum
contributions in the amount
determined under Section 14.05(a)
of the Plan under the Employer's
other defined contribution plan
( ) (iii) Any Member who is also covered
under the Employer's defined
benefit plan and who is employed
<PAGE>
on the last day of the Plan Year
shall receive minimum contributions
or benefits as follows:
( ) 1. A minimum contribution under
this Plan in an amount equal
to 5% of the Member's
Compensation.
( ) 2. A minimum contribution under
this Plan in an amount equal
to 7.5% of the Member's
Compensation.
( ) 3. A minimum benefit under the
Employer's defined benefit
plan equal to the product of
(a) the Member's average
Compensation for the period
of consecutive years (not
exceeding five) when the
Member had the highest
aggregate Compensation from
the Employer and (b) the
lesser of 2% per year of
service with the Employer or
20%.
( ) 4. A minimum benefit under the
Employer's defined benefit
plan equal to the product of
(a) the Member's average
Compensation for the period
of consecutive years (not
exceeding five) when the
Member had the highest
aggregate Compensation from
the Employer and (b) the
lesser of 3% per year of
service with the Employer or
30%.
Note: The total employer contributions (Elective Deferrals,
Matching Contributions, Employer Contributions and
Qualified Non-elective Contributions) to the Trust
each Fiscal Year may generally not exceed 15% of
aggregate Members' compensation. The Annual Additions
to a Member's accounts in any Limitation Year cannot
exceed the lesser of $30,000 or 25% of the Member's
Compensation.
<PAGE>
7. CLAIM FOR EXCESS ELECTIVE DEFERRALS
Members who claim Excess Elective Deferrals pursuant to
Section 6.02 of the Plan for the preceding calendar year
must submit their claims in writing to the Plan
Administrator by March 1.
Note: Excess Elective Deferrals distributed after April 15
are not only includable in the Member's gross income
for the year made, but are also includable in income
again in the year distributed.
8. COMPENSATION
Compensation shall mean all of each Member's
(X) W-2 earnings
( ) Compensation (as that term is defined in Section
12.05(c))
which is actually paid to the Member during
(X) the Plan Year.
( ) the calendar year ending with or within the Plan Year.
( ) the Limitation Year ending with or within the Plan
Year.
Compensation
(X) shall include ( ) shall not include
any amount which is contributed by the Employer pursuant to
a salary reduction agreement and which is not includible in
the gross income of the Employee under Section 125,
402(a)(8), 402(h) or 403(b) of the Code.
Compensation
( ) shall include (X) shall not include
any amount paid before the Member becomes eligible to
participate in the Plan.
For an Self-Employed Individual covered under the Plan,
Compensation means Earned Income.
<PAGE>
9. MEMBERSHIP/NORMAL RETIREMENT AGE
A. Each Employee will be eligible to become a Member in
this plan in accordance with Article III, except the
following (check any options you wish to elect):
( ) i. Employees who have not attained the age of
(cannot exceed 21).
------
(X) ii. Employees who have not completed 1 Year of
See Eligibility Service.
Attachment
( ) iii. Employees who have not been employed for at
least 6 months.
( ) iv. Employees covered by a collective bargaining
agreement which does not include this Plan,
if retirement benefits were the subject of
good faith bargaining.
( ) v. Employees employed in the following classes
shall be excluded from eligibility:
( ) hourly paid employees.
( ) salaried employees.
( ) commissioned employees.
(X) all employees other than employees
covered by a collective bargaining
agreement between Mueller Company
Decatur Plant and AIW Local 838.
( ) employees of Related Employers, except
that employees of the following
Related Employers shall be eligible
------------------------------------
------------------------------------.
( ) leased employees.
( ) all employees other than
-----------
------------------------------------
Note: The term "Employee" includes any employee of the
employer maintaining the plan or of any other employer
required to be aggregated under Section 414(b), (c),
(m) or (o) of the Code. Any individual who is a
"leased employee" of any such employer (see Section
2.11 of the Plan) shall also be considered an
Employee.
<PAGE>
B. Entry Date is generally defined as the first day of
the Plan Year and the first day of the seventh month
of the Plan Year. Check one of the following options
if you prefer an alternate definition.
( ) If this paragraph is checked, Entry Date shall
mean the first day of the Plan Year, and the
first day of the fourth, seventh and tenth month
of the Plan Year.
( ) If this paragraph is checked, Entry Date shall
mean the first day of each payroll period.
C. Normal Retirement Age under the Plan shall be
(check one):
(X) Age 65
( ) Age 62
( ) Other
-----------------------------
10. VESTING FORMULA
A. The Vesting Formula applicable to Plan Years in which
the Plan is or is deemed to be top-heavy shall be:
(check one)
( ) i. 100% vesting immediately upon participation.
( ) ii. 100% vesting after (not to exceed 3) Years
------
of Vesting Service.
( ) iii. ___ % (zero or higher) vesting after 1 Year of
Vesting Service.
N/A
___ % (20 or higher) vesting after 2 Years of
Vesting Service.
___ % (40 or higher) vesting after 3 Years of
Vesting Service.
___ % (60 or higher) vesting after 4 Years of
Vesting Service.
___ % (80 or higher) vesting after 5 Years of
Vesting Service
100% vesting after 6 Years of Vesting Service.
<PAGE>
B. (Complete this Paragraph only if you checked Paragraph
2(B)(ii).) The Vesting Formula applicable to Plan
Years in which the Plan is not top-heavy shall be:
(check one)
( ) i. ___ % (zero or higher) vesting after 1 Year of
Vesting Service.
___ % (zero or higher) vesting after 2 Years of
Vesting Service.
___ % (20 or higher) vesting after 3 Years of
Vesting Service.
___ % (40 or higher) vesting after 4 Years of
Vesting Service.
___ % (60 or higher) vesting after 5 Years of
Vesting Service
___ % (80 or higher) vesting after 6 Years of
Vesting Service
100% vesting after 7 Years of Vesting Service.
(X) ii. 100% after 5 (not to exceed 5) Years of Vesting
Service.
See
Attachment
11. SERVICE
A. Hours of Service shall be determined for all Employees
on the basis of actual hours for which an Employee is
paid or entitled to payment, unless the following
alternative is selected (check if you do not wish to
maintain detailed records of hours paid):
( ) On the basis of weeks worked. An Employee
shall be credited with forty-five (45) hours if
under Section 2.16 of the Plan such Employee would
be credited with at least one Hour of Service
during the week.
( ) On the basis of months worked. An Employee
shall be credited with one hundred-ninety (190)
hours if under Section 2.16 of the Plan such
Employee would be credited with at least one
Hour of Service during the month.
B. (Complete i and ii; 1000 Hours of Service will be
required if the blanks are not completed.)
<PAGE>
i. The minimum number of Hours of Service required
for a "Year of Eligibility Service" shall be 1000
ii. The minimum number of Hours of Service required
for a "Year of Vesting Service" shall be 1000
[0-1000].
C. Service for the following Predecessor Employer(s)
shall be treated as service for the Employer:
------
Mueller Company
-----------------------------------------------------
D. All of an Employee's Years of Vesting Service with the
Employer are counted to determine the vested
percentage in the Employee's Employer Account and
Matching Account except: (check if you wish to elect
this option)
( ) Years of Vesting Service before the Employer
maintained this plan or a predecessor plan.
( ) Years of Vesting Service completed before the
Employee attained age 18.
E. The computation period for determining an Employee's
Years of Vesting Service is the Plan Year unless the
following is checked (check if you wish to elect this
option):
(X) For purposes of determining an Employee's Years
of Vesting Service, the computation periods
shall be the Employee's employment years. An
employment year for an Employee is a twelve
consecutive month period beginning on his
employment commencement date. His employment
commencement date is the date on which he first
performed an Hour of Service.
12. INVESTMENT AND WITHDRAWALS: (check any options you wish to
elect)
(X) A. If this paragraph is checked, Members may elect
the investment of their Accounts pursuant to
Section 5.08B of the Plan.
( ) B. If this paragraph is checked, Members may make
the following withdrawals pursuant to Section
7.06(b) of the Plan (check the options you wish to
elect):
<PAGE>
( ) Withdrawals will be permitted from the
Member's Employee Account and/or
---------
Rollover Account pursuant to
-----------
Section 7.06(b)(i) of the Plan.
( ) Withdrawals will be permitted from the
Member's Employer Account and/or
---------
Matching Account pursuant to
-------------
Section 7.06(b)(ii) of the Plan; provided
( ) i. the Member has participated in the
Plan for at least sixty (60)
months; or
( ) ii. the Member has attained age
[fill in an age no less than 59-1/2].
( ) iii. the Member experiences a
"Financial Hardship" as defined in
Section 7.06(b) of the Plan.
Note: Fully vested Employer Contributions and Matching
Contributions will not be considered Qualified
Non-Elective Contributions and Qualified Matching
Contributions, respectively, if the Employer elects
the above withdrawal provision, and such contributions
cannot be used to help the Plan satisfy the ADP or ACP
test.
( ) Withdrawals will be permitted from the
Member's Elective Deferral Account for
purposes of a "Financial Hardship" pursuant
to Section 7.06(b)(iii) of the Plan.
( ) C. If this paragraph is checked, the Trustee shall
invest a portion of the Employer contribution in
Insurance Policies. The percentage of the
Employer contribution allocable to each insurable
Member's Employer Account and Matching Account to
be so invested shall be (complete i, ii or iii):
( ) i. % (not to exceed 25%) in a term life
---
insurance policy.
( ) ii. % (not to exceed 49%) in an ordinary
---
life insurance policy.
( ) iii. (1) % in a term life insurance policy
---
and
<PAGE>
(2) % in an ordinary life insurance
---
policy.
The percentage in (1) plus one-half of the
percentage in (2) shall not exceed 25%.
If Paragraph 12(A) has been checked, the
percentage specified above shall constitute
the maximum percentage of the Employer
Contribution and Matching Contribution
which each Member may elect to have applied to
the purchase of Insurance Policies.
( ) D. If this paragraph is checked, loans are permitted
under Section 7.10 of the Plan.
Note: Loans may not be made to Owner-Employees of an
unincorporated Employer or shareholder-employees of an
Employer which is an S Corporation.
13. FORMS OF DISTRIBUTION
Each Member may choose to have the distribution of his
Accounts made under Section 7.07 of the Plan in accordance
with one of the following options (check any options you wish to
offer under the Plan):
(X) A. One lump sum payment in cash or in kind or part in
cash and part in kind.
( ) B. Payments in cash or in kind in annual, quarterly
or monthly installments over a period not
exceeding one of the following periods selected
by the Member:
(i) the life expectancy of the Member;
(ii) the joint life and last survivor expectancy
of the Member and a Designated Beneficiary.
( ) C. Payments in cash or in kind in annual, quarterly
or monthly installments over a period up to 15
years as selected by the Member.
( ) D. Purchase of an immediate nontransferable annuity
which meets the requirements of Section 401(a)(9)
of the Code and the regulations promulgated
thereunder.
<PAGE>
14. TIMING OF DISTRIBUTIONS
The distribution of the Member's Accounts whose employment
terminates for reasons other than retirement, disability or
death and whose Accounts exceed $3,500 (insert $3,500 or
more) will commence within a reasonable time after the end
of the Plan Year in which the following occurs (check one):
(X) A. The Member's termination of employment.
( ) B. The date the Member attains (or would have
attained) Normal Retirement Age.
( ) C. years from the Member's termination of
----
employment.
15. LIMITATION ON CONTRIBUTIONS
If the Employer maintains or ever maintained another
qualified plan in which any Member of this Plan is (or was)
a participant or could possibly become a participant,
complete this section.
A. If the Member is covered under another qualified
defined contribution plan maintained by the Employer,
other than a regional prototype (check i or ii):
( ) i. The provisions of Section 12.02 will apply
as if the other plan were a regional
prototype plan.
( ) ii. (Provide the method under which the plans
will limit Annual Additions to the Maximum
Permissible Amount, and will properly
reduce any Excess Amounts, in a manner that
precludes Employer discretion)
---------
-----------------------------------------.
B. If the Member is or has ever been a participant in a
defined benefit plan maintained by the Employer
(provide the method under which the plans will satisfy
Section 415(e) of the Code): Any reduction will be
--------------------
made in the defined benefit plan.
--------------------------------------------------
<PAGE>
16. ADOPTION BY EMPLOYER AND TRUSTEE(S):
The employer named in Paragraph 1 (the "Employer") hereby
adopts the Mueller Company Decatur Plant Retirement Savings
and Investment Plan For AIW Local 838 consisting of this
Adoption Agreement and the Goodwin, Procter & Hoar Regional
Prototype Defined Contribution Basic Plan Document.
It is understood that the Employer assumes full
responsibility for the legal and tax aspects of its adoption
of this Plan. Failure by the Employer to complete this Adoption
Agreement properly may result in disqualification of the Plan.
Tyco Laboratories, Inc.
----------------------------
Employer
By: /s/ John A. Helfrich
-----------------------
Authorized Signature
Date: April 21, 1993
-----------------------
The Employer may not rely on the opinion letter obtained
by Goodwin, Procter & Hoar from the Internal Revenue Service as
evidence that the Plan is qualified under Section 401 of the
Internal Revenue Code. In order to obtain reliance with
respect to plan qualification, the Employer must apply to the
appropriate key district office of the Internal Revenue
Service for a determination letter.
If the Employer has any questions regarding plan provisions,
the procedure for adoption of this regional prototype plan, and
the effect of the notification letter, please contact a member
of the ERISA Department of Goodwin, Procter & Hoar at Exchange
Place, Boston, Massachusetts 02109, or by calling (617)
570-1000.
Goodwin, Procter & Hoar will inform the Employer of any
amendments made to the prototype plan or of the discontinuance
or abandonment of the prototype plan.
ZP-4301/T
6/24/92
ATTACHMENT TO MUELLER COMPANY DECATUR PLANT
RETIREMENT SAVINGS AND INVESTMENT PLAN FOR AIW LOCAL 838
1. Notwithstanding Paragraph 6A of the Adoption Agreement, the
minimum Elective Deferrals per Member shall be equal to 13 cents
per hour worked. Additional Elective Deferrals may be made
by each Member from 50 cents per hour worked up to $4.00 per
hour worked, in 25 cent increments. A Member eligible to
receive a lump sum payment from the Employer in lieu of
post-retirement medical benefits may also elect to have the
Employer contribute part or all of such amount to the Plan
as Elective Deferrals.
2. In addition to the Matching Contributions provided in
Paragraph 6C of the Adoption Agreement, the Employer shall
also make an initial Employer Contribution for each Member
who enrolls in the Plan on any of the following dates:
September 1, 1991, January 1, 1992 and July 1, 1992.
Notwithstanding any language to the contrary in Paragraph
6D of the Adoption Agreement or Section 5.05B of the Basic
Plan Document, each Member referred to in the preceding
sentence shall be allocated an initial Employer
Ccontribution of $200.
3. Notwithstanding Paragraph 9 of the Adoption Agreement, each
employee covered by the collective bargaining agreement
with AIW Local 838 who is hired before October 1, 1991 can
enroll in the Plan on September 1, 1991. Each eligible
employee hired after September 1, 1991 who is 55 or older
on date of hire is eligible to enroll in the Plan on the
Entry Date coincident with or immediately following his
date of hire.
4. Notwithstanding Paragraph 10B of the Adoption Agreement, a
Member is always fully vested in the initial Employer
Contribution of $200.
5. Section 2.08 of the Basic Plan Document is amended by
deleting said Section in its entirety and substituting
the following in lieu thereof:
"2.08 'Disability' means any medical determinable physical
or mental impairment of the Member which qualifies the Member
for Social Security disability benefits."
6. Section 4.04B of the Basic Plan Document is amended by
deleting the reference to "fifteen (15) days" and
substituting therefor "thirty (30) days."
7. Section 4.04B of the Basic Plan Document is amended by
adding the following at the end thereof:
"A Member who suspends contributions may resume contributions
as of any
<PAGE>
Entry Date which succeeds the date of suspension by at least
six (6) months, by means of written notice to the Plan
Administrator at least thirty (30) days prior to the date on
which the resumption is to be effective."
8. Section 7.02 of the Basic Plan Document is amended by deleting
the first sentence thereof and by substituting the following in
lieu thereof: "A Member shall be fully vested in all his Accounts
upon attainment of Normal Retirement Age or Early Retirement Age.
A Member attains his Early Retirement Age when the sum of his age
and Years of Vesting Service equals 80."
9. Section 7.05 of the Basic Plan Document is amended by
adding the following sentence at the end thereof:
"A Member who is on layoff status shall not be deemed to have
incurred a termination of employment, but such Member shall not
be eligible to make Elective Deferrals or to receive Matching
Contributions while on layoff status."
2
31778.b1
1993 ADDENDUM
TO
MUELLER COMPANY DECATUR PLANT
AIW LOCAL 838 RETIREMENT SAVINGS AND INVESTMENT PLAN
----------------------------------------------------
The Mueller Company Decatur Plant AIW Local 838 Retirement Savings and
Investment Plan established effective July 1, 1992 by means of the Goodwin,
Procter & Hoar Regional Prototype Non-Standard Profit Sharing Section 401(k)
Plan Basic Plan Document No. 1, Adoption Agreement 002 and Attachment thereto
is hereby further amended as follows:
1. Effective July 1, 1993, the term "Entry Date" shall mean the first day
of each calendar quarter.
2. Effective January 1, 1993, Section 7.05(a) is hereby amended by deleting
the second, third and fourth paragraphs of said Section and substituting in lieu
thereof the following:
"If, upon termination of employment, the value of a Member's vested account
balances derived from Employer and Employee contributions is not greater
than $3,500, the Member shall receive a distribution of the value of his
vested account balances in a lump sum pursuant to the provisions of Section
7.07 within a reasonable time after his termination of employment.
If, upon termination of employment, a Member has no vested interest in his
Matching Account and Employer Account, the Member shall be deemed to have
received a distribution of his interest in such Account as of his
termination date and the non-vested portion of his Matching Account and
Employer Account shall be treated as a forfeiture as of such date and
applied to reduce future Matching
Contributions."
<PAGE>
3. Effective October 1, 1993, Members shall be permitted to borrow from the
Plan pursuant to Section 7.10 of the Basic Plan Document; provided,
however, that Members shall not be permitted to borrow from their Matching
Accounts or their Employer Accounts.
IN WITNESS WHEREOF, the foregoing has been executed by a duly authorized
member on behalf of the Tyco Laboratories, Inc. Retirement Committee this
16 day of December, 1993.
-- --------
TYCO LABORATORIES, INC. RETIREMENT
COMMITTEE
By /s/ John A. Helfrich
-----------------------------------
27247.b1
10/4/93 12:44 pm
JUNE 1994 ADDENDUM
TO MUELLER COMPANY
DECATUR PLANT RETIREMENT SAVINGS
AND INVESTMENT PLAN FOR U.P.I.U. #7838
--------------------------------------
The Mueller Company Decatur Plant AIW Local 838 Retirement Savings and
Investment Plan established effective July 1, 1992 by means of the Goodwin,
Procter & Hoar Regional Prototype Non-Standard Profit Sharing Section 401(k)
Plan Basic Plan Document No. 1, Adoption Agreement 002 and Attachment thereto,
as subsequently amended, is hereby further amended as follows:
1. Effective June 12, 1994, the name of the Plan has been changed to "The
Mueller Company Decatur Plant Retirement Savings and Investment Plan for
U.P.I.U. #7838".
2. Effective June 12, 1994, the Employer's annual Matching Contribution made on
behalf of a Plan Member shall not exceed 200% of such Member's Elective
Deferrals up to $375.
IN WITNESS WHEREOF, the foregoing has been executed by a duly authorized
member on behalf of the Tyco International Ltd. Retirement Committee, this
15th day of November, 1994.
- ---- --------
TYCO INTERNATIONAL LTD.
RETIREMENT COMMITTEE
By: /s/ John A. Helfrich
------------------------
69112.b1
Mueller Co. Chattanooga Plant
Retirement Savings and Invest-
ment Plan For Hourly Employees
Covered by a Collective Bargain-
ing Agreement
ADOPTION AGREEMENT 002
USE ONLY WITH BASIC PLAN
DOCUMENT NO. 01
ADOPTION AGREEMENT
GOODWIN, PROCTER & HOAR REGIONAL PROTOTYPE NON-STANDARD
PROFIT SHARING SECTION 401(k) PLAN
1. THE EMPLOYER (Note: The term "Employer" includes all
Related Employers as defined in Section 2.12
of the Plan)
Name: Tyco Laboratories, Inc. Employer Identification
---------------------- Number:
Address: Tyco Park 04-2297459
------------------- ----------------------
Exeter, NH 03833 Plan Number 028
----------------------------- -------------
(001 or next available
number)
Nature of Business: Fiscal Year Ends:
Manufacturing 6/30
- --------------------------------- ----------------------
Type of Employer:
X corporation partnership
--- ---
sole proprietor other
--- ---
2. THE PLAN
A. The Plan or Amendment adopted by this Adoption
Agreement is effective January 1, 1992. (Should
ordinarily be the first day of a Fiscal Year.)
This adoption is (check one):
(X) An original adoption of an entirely new plan.
<PAGE>
(X) An amendment to and continuation of a plan originally
effective and entitled
--------------- ------------
- --------------------------------------------------------------
- --------------------------------------------------------------
- -------------------------
B. Top-Heavy status (check one):
( ) i. The Plan will always be administered as if it were
top-heavy.
( ) ii. The Employer will determine each year whether or
not the Plan is top-heavy. For purposes of
determining the top-heavy ratio, any benefit
N/A shall be discounted only for mortality and interest based on the
following (complete if you maintain or ever maintained a defined
benefit plan):
Interest rate %
---
Mortality table .
--------------------------------
Valuation date for purposes of computing the top-heavy ratio
shall be of each year.
----------
3. PLAN YEAR, LIMITATION YEAR
The Plan Year shall be the twelve consecutive month period ending on
December 31 of each year. The Limitation Year for all qualified plans of
the Employer shall be the twelve consecutive month period ending on
December 31 of each year.
4. TRUSTEE
The Employer hereby designates the following to act as Trustee under the
Plan:
Mellon Bank, N.A.
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5. PERMISSIBLE INVESTMENTS
The Permissible Investments shall include (check any options you wish to
elect):
( ) A. Such stocks, bonds, or other marketable
securities, including certificates of
participation or shares of any regulated mutual
2
<PAGE>
investment company, trust or fund, put and call
options, certain hedged covered option positions,
limited partnership interests, private letter
stock, as the Trustee from time to time selects;
provided that the Trustee shall not invest in
securities of an Employer; and that the Trustee
may hold funds of the Trust uninvested if and to
the extent it deems advisable from time to time,
and provided further that the Trustee is
authorized to commingle part or all of the assets
of the Trust in one or more trusts, including
trusts of which the Trustee is trustee, whether
now existing or hereafter created, for the
collective investment of funds held under
employees' pension or profit sharing plans or
trusts which are qualified within the meaning of
and exempt from tax under the revenue laws of the
United States, and permitted by existing or future
rulings of the United States Treasury Department
to pool their respective funds in a group trust,
in which event the instrument pursuant to which
such trust is established shall be deemed to be a
part of the Plan.
( ) B. Such guaranteed income contracts and similar
products, if any, whether issued by an insurance
company or other financial institution, as the
Trustee from time to time selects.
( ) C. Such short-term obligations from time to time
selected by the Trustee, including but not limited
to savings accounts, certificates of deposit,
variable demand notes, short-term commercial
paper, U.S. Treasury bills and notes, other
obligations with short maturities on which
interest income may vary from day to day, and
shares of mutual funds investing principally in
the foregoing.
( ) D. Such shares of one or more mutual funds or
interests in other pooled investment funds as the
Trustee from time to time selects.
(X) E. Other: Such shares of one or more mutual funds
and such guaranteed income contracts and similar
products, if any, whether issued by an insurance
company or other financial institution, as the
Plan Administrator for time to time selects.
3
<PAGE>
6. CONTRIBUTIONS AND FORFEITURES
(X) A. Elective Deferrals
------------------
If this paragraph is checked, Elective Deferrals
not in excess of 20% of a Member's Compensation
See shall be contributed to the Trust by the Employer
Attachment in accordance with a Salary Adjustment Agreement
with the Member.
The minimum Elective Deferrals per Member shall be $ per
-------
week/month.
( ) B. Employee Contributions
----------------------
If this paragraph is checked, a Member may contribute up to
% of his Compensation to the Trust on a nondeductible
-----
basis.
The minimum Employee Contributions per Member shall be $ per
-----
week/month.
(X) C. Matching Contributions
----------------------
If this paragraph is checked, the Employer shall make Matching
Contributions to the Trust on behalf of all Members who make
(check (i) or (ii) or both)
(X) (i) Elective Deferrals
( ) (ii) Employee Contributions
to the Trust.
The amount of Matching Contribution shall be
(check one or more below)
(X) (a) 200 percent of the Member's Elective
Deferrals.
( ) (b) percent of the Member's
---------
Employee Contributions.
( ) (c) such amount voted or declared
---------
by the Employer each Fiscal Year.
4
<PAGE>
The Employer shall not match the Member's Elective Deferrals
and/or Employee Contributions in excess of $ 250 , or in excess of
-----
percent of the Member's Compensation.
------
The Matching Contributions
( ) will (X) will not
be limited to the Employer's Net Profits.
(X) D. Employer Contributions
-----------------------
See If this paragraph is checked, the Employer shall
Attachment make Employer Contributions to the Trust each
Fiscal Year in an amount determined as follows:
( ) (i) the amount voted or declared by the
Employer on account of such Fiscal Year.
( ) (ii) % of each eligible Member's
---
Compensation, plus the amount voted or
declared by the Employer on account of
such Fiscal Year.
( ) If this paragraph is checked, a Member is eligible to share in
the allocation of the Employer Contribution for any Plan Year if
he is an Employee on the last day of the Plan Year, or if he died,
retired, became disabled during such Plan Year, or terminated
employment during such Plan Year after being credited with more
than 500 Hours of Service.
The Employer Contributions
( ) will (X) will not
be limited to the Employer's Net Profits.
The Employer Contributions will be allocated to each eligible
Member as follows:
( ) NOT INTEGRATED: The allocation will be made
on a pro rata basis in accordance with each
eligible Member's Compensation.
( ) INTEGRATED: The allocation will be
integrated with Social Security as set forth
in Section 5.05B(b) of the Plan.
5
<PAGE>
( ) E. Qualified Non-Elective Contributions
------------------------------------
( ) If this paragraph is checked, in any Plan Year in which the
Plan cannot satisfy either the ADP or ACP test, the Employer may
make Qualified Non-Elective Contributions to the Trust on behalf
of Non-Highly Compensated Employees in an amount sufficient to
enable the Plan to satisfy such tests.
(X ) F. Forfeitures
-----------
Forfeitures for each Plan Year shall be (check i
or ii)
(X) (i) applied to reduce Matching Contributions for such
Plan Year.
( ) (ii) allocated in the same manner as Employer
Contributions.
( ) G. In any year in which the Plan is or is deemed to
be top-heavy, a minimum contribution in the amount
determined under Section 14.05(a) of the Plan is
required. To avoid inappropriate
N/A omissions or duplication of minimum benefits or contributions if
the Employer maintains more than one plan, the rules checked or
specified below shall apply (check one)
( ) (i) Minimum contributions shall be
provided in this Plan without
regard to the benefits or
contributions provided to the
Member under the Employer's other
plans (subject to the limitations
of Article XII).
( ) (ii) Any Member who is also covered
under the Employer's other defined
contribution plan and who is
employed on the last day of the
Plan Year shall receive minimum
contributions in the amount
determined under Section 14.05(a)
of the Plan under the Employer's
other defined contribution plan
( ) (iii) Any Member who is also covered
under the Employer's defined
benefit plan and who is employed
6
<PAGE>
on the last day of the Plan Year
shall receive minimum contributions
or benefits as follows:
( ) 1. A minimum contribution under
this Plan in an amount equal
to 5% of the Member's
Compensation.
( ) 2. A minimum contribution under
this Plan in an amount equal
to 7.5% of the Member's
Compensation.
( ) 3. A minimum benefit under the
Employer's defined benefit
plan equal to the product of
(a) the Member's average
Compensation for the period of
consecutive years (not
exceeding five) when the
Member had the highest
aggregate Compensation from
the Employer and (b) the
lesser of 2% per year of
service with the Employer or
20%.
( ) 4. A minimum benefit under the
Employer's defined benefit
plan equal to the product of
(a) the Member's average
Compensation for the period of
consecutive years (not
exceeding five) when the
Member had the highest
aggregate Compensation from
the Employer and (b) the
lesser of 3% per year of
service with the Employer or
30%.
Note: The total employer contributions (Elective Deferrals, Matching
Contributions, Employer Contributions and Qualified Non-elective
Contributions) to the Trust each Fiscal Year may generally not exceed
15% of aggregate Members' compensation. The Annual Additions to a
Member's accounts in any Limitation Year cannot exceed the lesser of
$30,000 or 25% of the Member's Compensation.
7
<PAGE>
7. CLAIM FOR EXCESS ELECTIVE DEFERRALS
Members who claim Excess Elective Deferrals pursuant to Section 6.02 of the
Plan for the preceding calendar year must submit their claims in writing to
the Plan Administrator by March 1.
Note: Excess Elective Deferrals distributed after April 15 are not only
includable in the Member's gross income for the year made, but are
also includable in income again in the year distributed.
8. COMPENSATION
Compensation shall mean all of each Member's
(X) W-2 earnings
( ) Compensation (as that term is defined in Section
12.05(c))
which is actually paid to the Member during
(X) the Plan Year.
( ) the calendar year ending with or within the Plan Year.
( ) the Limitation Year ending with or within the Plan
Year.
Compensation
(X) shall include ( ) shall not include
any amount which is contributed by the Employer pursuant to a salary
reduction agreement and which is not includible in the gross income of the
Employee under Section 125, 402(a)(8), 402(h) or 403(b) of the Code.
Compensation
( ) shall include (X) shall not include
any amount paid before the Member becomes eligible to
participate in the Plan.
For an Self-Employed Individual covered under the Plan, Compensation means
Earned Income.
8
<PAGE>
9. MEMBERSHIP/NORMAL RETIREMENT AGE
A. Each Employee will be eligible to become a Member in this plan in
accordance with Article III, except the following (check any options
you wish to elect):
(X) i. Employees who have not attained the age of 21 (cannot
exceed 21).
(X) ii. Employees who have not completed 1 Year of
See Eligibility Service.
Attachment
( ) iii. Employees who have not been employed for at
least 6 months.
( ) iv. Employees covered by a collective bargaining
agreement which does not include this Plan,
if retirement benefits were the subject of
good faith bargaining.
(X) v. Employees employed in the following classes shall be
excluded from eligibility:
--------
( ) hourly-paid employees.
( ) salaried employees.
( ) commissioned employees.
(X) all employees other than employees
covered by a collective bargaining
agreement between Mueller Company
Chattanooga Plant and United
Steelworkers of America Local
No. 3115, International Association of
Machinists and Aerospace Workers
Success Lodge No. 56, International
Association of Machinists and
Aerospace Workers, Pattern Makers
Division, Chattanooga Local Lodge PM
2805, Office and Professional
Employees International Union, AFL-CIO,
CLC, Local No. 179 (Office),
Office and Professional Employees
International Union, AFL-CIO, CLC,
Local No. 179 (Plant Clerks) and
Office and Professional Employees
International Union, AFL-CIO, CLC,
Local No. 179 (Draftsmen).
9
<PAGE>
( ) employees of Related Employers, except
that employees of the following
Related Employers shall be eligible
.
--------------------------------------
( ) leased employees.
( ) all employees other than
--------------
.
--------------------------------------
Note: The term "Employee" includes any employee of the employer maintaining
the plan or of any other employer required to be aggregated under
Section 414(b), (c), (m) or (o) of the Code. Any individual who is a
"leased employee" of any such employer (see Section 2.11 of the Plan)
shall also be considered an Employee.
B. Entry Date is generally defined as the first day of
the Plan Year and the first day of the seventh month
of the Plan Year. Check one of the following options
if you prefer an alternate definition.
( ) If this paragraph is checked, Entry Date shall mean the first
day of the Plan Year, and the first day of the fourth, seventh
and tenth month of the Plan Year.
( ) If this paragraph is checked, Entry Date shall mean the first
day of each payroll period.
C. Normal Retirement Age under the Plan shall be
(check one):
( ) Age 65
( ) Age 62
(X) Other Age 55
------------------------------------------------------
10. VESTING FORMULA
A. The Vesting Formula applicable to Plan Years in which
the Plan is or is deemed to be top-heavy shall be:
(check one)
( ) i. 100% vesting immediately upon participation.
10
<PAGE>
( ) ii. 100% vesting after (not to exceed 3) Years
------
of Vesting Service.
( ) iii. % (zero or higher) vesting after 1 Year of
----
Vesting Service.
N/A
% (20 or higher) vesting after 2 Years of
----
Vesting Service.
% (40 or higher) vesting after 3 Years of
----
Vesting Service.
% (60 or higher) vesting after 4 Years of
----
Vesting Service.
% (80 or higher) vesting after 5 Years of
----
Vesting Service
100% vesting after 6 Years of Vesting Service.
B. (Complete this Paragraph only if you checked Paragraph
2(B)(ii).) The Vesting Formula applicable to Plan
Years in which the Plan is not top-heavy shall be:
(check one)
( ) i. % (zero or higher) vesting after 1 Year of
----
Vesting Service.
% (zero or higher) vesting after 2 Years of
----
Vesting Service.
% (20 or higher) vesting after 3 Years of
----
Vesting Service.
% (40 or higher) vesting after 4 Years of
----
Vesting Service.
% (60 or higher) vesting after 5 Years of
----
Vesting Service
% (80 or higher) vesting after 6 Years of
----
Vesting Service
100% vesting after 7 Years of Vesting Service.
(X) ii. 100% after 5 (not to exceed 5) Years of Vesting
Service.
See
Attachment
11
<PAGE>
11. SERVICE
A. Hours of Service shall be determined for all Employees on the basis of
actual hours for which an Employee is paid or entitled to payment,
unless the following alternative is selected (check if you do not wish
to maintain detailed records of hours paid):
( ) On the basis of weeks worked. An Employee shall
be credited with forty-five (45) hours if under
Section 2.16 of the Plan such Employee would be
credited with at least one Hour of Service
during the week.
( ) On the basis of months worked. An Employee
shall be credited with one hundred-ninety (190)
hours if under Section 2.16 of the Plan such
Employee would be credited with at least one
Hour of Service during the month.
B. (Complete i and ii; 1000 Hours of Service will be
required if the blanks are not completed.)
i. The minimum number of Hours of Service required
for a "Year of Eligibility Service" shall be 1000
ii. The minimum number of Hours of Service required
for a "Year of Vesting Service" shall be 1000.
C. Service for the following Predecessor Employer(s)
shall be treated as service for the Employer:
-------
Mueller Company .
- --------------------------------------------------------------
D. All of an Employee's Years of Vesting Service with the
Employer are counted to determine the vested
percentage in the Employee's Employer Account and
Matching Account except: (check if you wish to elect
this option)
( ) Years of Vesting Service before the Employer
maintained this plan or a predecessor plan.
( ) Years of Vesting Service completed before the
Employee attained age 18.
E. The computation period for determining an Employee's Years of Vesting
Service is the Plan Year unless the following is checked (check if you
wish to elect this option):
12
<PAGE>
(X) For purposes of determining an Employee's Years
of Vesting Service, the computation periods
shall be the Employee's employment years. An
employment year for an Employee is a twelve
consecutive month period beginning on his
employment commencement date. His employment
commencement date is the date on which he first
performed an Hour of Service.
12. INVESTMENT AND WITHDRAWALS: (check any options you wish to
elect)
(X) A. If this paragraph is checked, Members may elect
the investment of their Accounts pursuant to
Effective Section 5.08B of the Plan.
July 1, 1992
( ) B. If this paragraph is checked, Members may make the
following withdrawals pursuant to Section 7.06(b)
of the Plan (check the options you wish to elect):
( ) Withdrawals will be permitted from the
Member's Employee Account and/or
-----------
Rollover Account pursuant to
-------------
Section 7.06(b)(i) of the Plan.
( ) Withdrawals will be permitted from the
Member's Employer Account and/or
------------
Matching Account pursuant to
---------------
Section 7.06(b)(ii) of the Plan; provided
( ) i. the Member has participated in the
Plan for at least sixty (60)
months; or
( ) ii. the Member has attained age
-----
[fill in an age no less than 59-1/2].
( )iii. the Member experiences a
"Financial Hardship" as defined in
Section 7.06(b) of the Plan.
Note: Fully vested Employer Contributions and Matching
Contributions will not be considered Qualified Non-Elective
Contributions and Qualified Matching Contributions, respectively, if
the Employer elects the above withdrawal provision, and such
contributions cannot be used to help the Plan satisfy the ADP or ACP
test.
13
<PAGE>
( ) Withdrawals will be permitted from the
Member's Elective Deferral Account for
purposes of a "Financial Hardship" pursuant
to Section 7.06(b)(iii) of the Plan.
( ) C. If this paragraph is checked, the Trustee shall
invest a portion of the Employer contribution in
Insurance Policies. The percentage of the
Employer contribution allocable to each insurable
Member's Employer Account and Matching Account to
be so invested shall be (complete i, ii or iii):
( ) i. % (not to exceed 25%) in a term life
----
insurance policy.
( ) ii. % (not to exceed 49%) in an ordinary life
----
insurance policy.
( ) iii. (1) % in a term life insurance policy
----
and
(2) % in an ordinary life insurance
----
policy.
The percentage in (1) plus one-half of the percentage in (2)
shall not exceed 25%.
If Paragraph 12(A) has been checked, the percentage
specified above shall constitute the maximum percentage of
the Employer Contribution and Matching Contribution which
each Member may elect to have applied to the purchase of
Insurance Policies.
( ) D. If this paragraph is checked, loans are permitted
under Section 7.10 of the Plan.
Note: Loans may not be made to Owner-Employees of an
---
unincorporated Employer or shareholder-employees of an
Employer which is an S Corporation.
13. FORMS OF DISTRIBUTION
Each Member may choose to have the distribution of his Accounts made under
Section 7.07 of the Plan in accordance with one of the following options (check
any options you wish to offer under the Plan):
14
<PAGE>
(X) A. One lump sum payment in cash or in kind or part in
cash and part in kind.
( ) B. Payments in cash or in kind in annual, quarterly
or monthly installments over a period not
exceeding one of the following periods selected by
the Member:
(i) the life expectancy of the Member;
(ii) the joint life and last survivor expectancy
of the Member and a Designated Beneficiary.
( ) C. Payments in cash or in kind in annual, quarterly
or monthly installments over a period up to 15
years as selected by the Member.
( ) D. Purchase of an immediate nontransferable annuity
which meets the requirements of Section 401(a)(9)
of the Code and the regulations promulgated
thereunder.
14. TIMING OF DISTRIBUTIONS
The distribution of the Member's Accounts whose employment terminates for
reasons other than retirement, disability or death and whose Accounts exceed
$3,500 (insert $3,500 or more) will commence within a reasonable time after
the end of the Plan Year in which the following occurs (check one):
(X) A. The Member's termination of employment.
( ) B. The date the Member attains (or would have
attained) Normal Retirement Age.
( ) C. years from the Member's termination of
-----
employment.
15. LIMITATION ON CONTRIBUTIONS
If the Employer maintains or ever maintained another qualified plan in which
any Member of this Plan is (or was) a participant or could possibly become a
participant, complete this section.
A. If the Member is covered under another qualified defined contribution
plan maintained by the Employer, other than a regional prototype
(check i or ii):
15
<PAGE>
( ) i. The provisions of Section 12.02 will apply
as if the other plan were a regional
prototype plan.
( ) ii. (Provide the method under which the plans
will limit Annual Additions to the Maximum
Permissible Amount, and will properly reduce
any Excess Amounts, in a manner that
precludes Employer discretion)
-----------------------------
- -------------------------------------------------------------------------------
B. If the Member is or has ever been a participant in a defined benefit
plan maintained by the Employer (provide the method under which the
plans will satisfy Section 415(e) of the Code): Any reduction will be
----------------------
made in the defined benefit plan.
----------------------------------------------------------------------
16. ADOPTION BY EMPLOYER AND TRUSTEE(S):
The employer named in Paragraph 1 (the "Employer") hereby adopts the Mueller
Co. Chattanooga Plant Retirement Savings and Investment Plan For Hourly
Employees Covered by a Collective Bargaining Agreement consisting of this
Adoption Agreement and the Goodwin, Procter & Hoar Regional Prototype
Defined Contribution Basic Plan Document.
It is understood that the Employer assumes full responsibility for the legal
and tax aspects of its adoption of this Plan. Failure by the Employer to
complete this Adoption Agreement properly may result in disqualification of the
Plan.
Tyco Laboratories, Inc.
-----------------------
Employer
By: /s/ John A. Helfrich
----------------------
Authorized Signature
Date: April 21, 1993
----------------------
The Employer may not rely on the opinion letter obtained by Goodwin, Procter
& Hoar from the Internal Revenue Service as evidence that the Plan is qualified
under Section 401 of the Internal Revenue Code. In order to obtain reliance with
respect to plan qualification, the Employer must apply to the appropriate key
district office of the Internal Revenue Service for a determination letter.
16
<PAGE>
If the Employer has any questions regarding plan provisions, the procedure
for adoption of this regional prototype plan, and the effect of the notification
letter, please contact a member of the ERISA Department of Goodwin, Procter &
Hoar at Exchange Place, Boston, Massachusetts 02109, or by calling (617)
570-1000.
Goodwin, Procter & Hoar will inform the Employer of any amendments made to
the prototype plan or of the discontinuance or abandonment of the prototype
plan.
ZP-4586/T
7/10/92
ATTACHMENT TO MUELLER CO. CHATTANOOGA PLANT
RETIREMENT SAVINGS AND INVESTMENT PLAN
FOR HOURLY EMPLOYEES COVERED BY A
COLLECTIVE BARGAINING AGREEMENT
1. Notwithstanding Paragraph 6A of the Adoption Agreement, a Member eligible
to receive a lump sum payment from the Employer in lieu of post-retirement
medical benefits may also elect to have the Employer contribute part or all
of such amount to the Plan as Elective Deferrals.
2. In addition to the Matching Contributions provided in
Paragraph 6C of the Adoption Agreement, the Employer shall
also make an initial Employer Contribution for each Member
eligible to enroll in the Plan on January 1, 1992.
Notwithstanding any language to the contrary in Paragraph
6D of the Adoption Agreement or Section 5.05B of the Basic
Plan Document, each Member referred to in the preceding
sentence shall be allocated an initial Employer
Contribution of $100.
3. Notwithstanding Paragraph 9 of the Adoption Agreement, each eligible
employee who is hired before January 1, 1992 can enroll in the Plan on
January 1, 1992. Each eligible employee hired after January 1, 1992 who is
55 or older on date of hire is eligible to enroll in the Plan on the Entry
Date coincident with or immediately following his date of hire.
4. Notwithstanding Paragraph 10B of the Adoption Agreement, a Member is always
fully vested in the initial Employer Contribution of $100.
5. Section 2.08 of the Basic Plan Document is amended by deleting said Section
in its entirety and substituting the following in lieu thereof:
"2.08 'Disability' means any medical determinable physical or mental
impairment of the Member which qualifies the Member for Social Security
disability benefits."
6. Section 4.04B of the Basic Plan Document is amended by
deleting the reference to "fifteen (15) days" and sub-
stituting therefor "thirty (30) days."
7. Section 4.04B of the Basic Plan Document is amended by
adding the following at the end thereof:
<PAGE>
"A Member who suspends contributions may resume contributions as of any
Entry Date which succeeds the date of suspension by at least six (6)
months, by means of written notice to the Plan Administrator at least
thirty (30) days prior to the date on which the resumption is to be
effective."
8. Section 7.05 of the Basic Plan Document is amended by add-
ing the following sentence at the end thereof:
"A Member who is on layoff status shall not be deemed to have incurred a
termination of employment, but such Member shall not be eligible to make
Elective Deferrals or to receive Matching Contributions while on layoff
status."
ZP-4587/T
1993 ADDENDUM
TO
MUELLER CO. CHATTANOOGA PLANT
RETIREMENT SAVINGS AND INVESTMENT PLAN FOR
HOURLY EMPLOYEES COVERED BY A COLLECTIVE BARGAINING AGREEMENT
-------------------------------------------------------------
The Mueller Co. Chattanooga Plant Retirement Savings and Investment Plan
for Hourly Employees Covered by a Collective Bargaining Agreement established
effective January 1, 1992 by means of the Goodwin, Procter & Hoar Regional
Prototype Non-Standard Profit Sharing Section 401(k) Plan Basic Plan Document
No. 1, Adoption Agreement 002 and Attachment thereto is hereby further amended
as follows:
1. Effective July 1, 1993, the term "Entry Date" shall mean the first day
of each calendar quarter.
2. Effective January 1, 1993, Section 7.05(a) is hereby amended by deleting
the second, third and fourth paragraphs of said Section and substituting in lieu
thereof the following:
"If, upon termination of employment, the value of a Member's vested account
balances derived from Employer and Employee contributions is not greater
than $3,500, the Member shall receive a distribution of the value of his
vested account balances in a lump sum pursuant to the provisions of Section
7.07 within a reasonable time after his termination of employment.
If, upon termination of employment, a Member has no vested interest in his
Matching Account and Employer Account, the Member shall be deemed to have
received a distribution of his interest in such Account as of his
termination date and the non-vested portion of his Matching Account and
Employer Account shall be treated as a forfeiture as of such date and
applied to reduce future Matching Contributions."
<PAGE>
4. Effective October 1, 1993, Members shall be permitted to borrow from the
Plan pursuant to Section 7.10 of the Basic Plan Document; provided, however,
that Members shall not be permitted to borrow from their Matching Accounts or
their Employer Accounts.
IN WITNESS WHEREOF, the foregoing has been executed by a duly authorized
member on behalf of the Tyco Laboratories, Inc. Retirement Committee this 16
--
day of December, 1993.
-------
TYCO LABORATORIES, INC. RETIREMENT
COMMITTEE
By /s/ John A. Helfrich
----------------------------------
27248.b1
10/4/93 12:45 pm
Mueller Co. Cleveland
Hourly Retirement Savings
and Investment Plan
ADOPTION AGREEMENT 002
USE ONLY WITH BASIC PLAN
DOCUMENT NO. 01
ADOPTION AGREEMENT
GOODWIN, PROCTER & HOAR REGIONAL PROTOTYPE NON-STANDARD
PROFIT SHARING SECTION 401(k) PLAN
1. THE EMPLOYER (Note: The term "Employer" includes all
Related Employers as defined in Section
2.12 of the Plan)
Name: Tyco International Ltd. Employer Identification
-----------------------
Number
Address Tyco Park 04-2297459
--------- ----------
Exeter, NH 03833 Plan Number 026
---------------- ---------
(001 or next available number)
Nature of Business: Fiscal Year Ends:
Manufacturing 6/30
-------------------- ---------------
Type of Employer:
X corporation partnership
--- ---
sole proprietor other
--- ---
2. THE PLAN
A. The Plan or Amendment adopted by this Adoption Agreement is effective
July 1, 1993. (Should ordinarily be the first day of a Fiscal Year.)
This adoption is (check one):
<PAGE>
( ) An original adoption of an entirely new plan.
(X) An amendment to and continuation of a plan originally effective
January 1, 1991 and entitled Mueller Co. Cleveland Hourly Retirement
--------------- ---------------------------------------
Savings and Investment Plan.
---------------------------
B. Top-Heavy status (check one):
( ) i. The Plan will always be administered as if it were top-heavy.
(X) ii. The Employer will determine each year whether or not the Plan is
top-heavy. For purposes of determining the top-heavy ratio, any
benefit shall be discounted only for mortality and interest based on
the following (complete if you maintain or ever maintained a defined
benefit plan):
Interest rate %
----
Mortality table .
-----------------------------
Valuation date for purposes of computing the top-heavy ratio shall
be of each year.
--------
3. PLAN YEAR, LIMITATION YEAR
The Plan Year shall be the twelve consecutive month period ending on December
31 of each year. The Limitation Year for all qualified plans of the Employer
shall be the twelve consecutive month period ending on December 31 of each
year.
4. TRUSTEE
The Employer hereby designates the following to act as Trustee under the
Plan: Mellon Bank
5. PERMISSIBLE INVESTMENTS
The Permissible Investments shall include (check any options you wish to
elect):
( ) A. Such stocks, bonds, or other marketable securities, including
certificates of participation or shares of any regulated mutual
investment company, trust or fund, put and call
2
<PAGE>
options, certain hedged covered option positions, limited
partnership interests, private letter stock, as the Trustee from
time to time selects; provided that the Trustee shall not invest
in securities of an Employer; and that the Trustee may hold funds
of the Trust uninvested if and to the extent it deems advisable
from time to time, and provided further that the Trustee is
authorized to commingle part or all of the assets of the Trust in
one or more trusts, including trusts of which the Trustee is
trustee, whether now existing or hereafter created, for the
collective investment of funds held under employees' pension or
profit sharing plans or trusts which are qualified within the
meaning of and exempt from tax under the revenue laws of the
United States, and permitted by existing or future rulings of the
United States Treasury Department to pool their respective funds
in a group trust, in which event the instrument pursuant to which
such trust is established shall be deemed to be a part of the Plan.
( ) B. Such guaranteed income contracts and similar products, if any,
whether issued by an insurance company or other financial
institution, as the Trustee from time to time selects.
( ) C. Such short-term obligations from time to time selected by the
Trustee, including but not limited to savings accounts,
certificates of deposit, variable demand notes, short-term
commercial paper, U.S. Treasury bills and notes, other obligations
with short maturities on which interest income may vary from day
to day, and shares of mutual funds investing principally in the
foregoing.
( ) D. Such shares of one or more mutual funds or interests in other
pooled investment funds as the Trustee from time to time selects.
(X) E. Other: Such shares of one or more mutual funds and such guaranteed
income contracts and similar products, if any, whether issued by an
insurance company or other financial institution, as the Plan
Administrator from time to time selects.
6. CONTRIBUTIONS AND FORFEITURES
(X) A. Elective Deferrals
-------------------
If this paragraph is checked, Elective Deferrals not in excess
see of 15% of a Member's Compensation shall be contributed
attachment to the Trust by the Employer in accordance with a Salary Adjustment
Agreement with the Member.
3
<PAGE>
The minimum Elective Deferrals per Member shall be $ per
----
week/month.
( ) B. Employee Contributions
----------------------
If this paragraph is checked, a Member may contribute up to %
----
of his Compensation to the Trust on a nondeductible basis.
The minimum Employee Contributions per Member shall be $ per
----
week/month.
(X) C. Matching Contributions
----------------------
If this paragraph is checked, the Employer shall make Matching
Contributions to the Trust on behalf of all Members who make (check
(i) or (ii) or both)
(X) (i) Elective Deferrals
( ) (ii) Employee Contributions
to the Trust.
The amount of Matching Contribution shall be (check one or more
below)
(X) (a) 300 percent of the Member's Elective Deferrals.
( ) (b) percent of the Member's Employee Contributions.
-------
( ) (c) such amount voted or declared by the Employer each
-------
Fiscal Year.
The Employer shall not match the Member's Elective Deferrals and/or
Employee Contributions in excess of $ , or in excess of 1 percent of
the Member's Compensation.
The Matching Contributions
( ) will (X) will not
be limited to the Employer's Net Profits.
( ) D. Employer Contributions
-----------------------
4
<PAGE>
If this paragraph is checked, the Employer shall make Employer
Contributions to the Trust each Fiscal Year in an amount determined
as follows:
( ) (i) the amount voted or declared by the Employer on account
of such Fiscal Year.
( ) (ii) % of each eligible Member's Compensation, plus the
----
amount voted or declared by the Employer on account of
such Fiscal Year.
( ) If this paragraph is checked, a Member is eligible to share in
the allocation of the Employer Contribution for any Plan Year if he
is an Employee on the last day of the Plan Year, or if he died,
retired, became disabled during such Plan Year, or terminated
employment during such Plan Year after being credited with more than
500 Hours of Service.
The Employer Contributions
( ) will ( ) will not
be limited to the Employer's Net Profits.
The Employer Contributions will be allocated to each eligible Member
as follows:
( ) NOT INTEGRATED: The allocation will be made on a pro rata
basis in accordance with each eligible Member's Compensation.
( ) INTEGRATED: The allocation will be integrated with Social
Security as set forth in Section 5.05B(b) of the Plan.
( ) E. Qualified Non-Elective Contributions
------------------------------------
( ) If this paragraph is checked, in any Plan Year in which the Plan
cannot satisfy either the ADP or ACP test, the Employer may make
Qualified Non-Elective Contributions to the Trust on behalf of
Non-Highly Compensated Employees in an amount sufficient to enable
the Plan to satisfy such tests.
(X) F. Forfeitures
-----------
Forfeitures for each Plan Year shall be (check i or ii)
5
<PAGE>
(X) (i) applied to reduce Matching Contributions for such Plan Year.
( ) (ii) allocated in the same manner as Employer Contributions.
( ) G. In any year in which the Plan is or is deemed to be top-heavy, a
minimum contribution in the amount determined under Section 14.05(a)
of the Plan is required. To avoid inappropriate omissions or
duplication of minimum benefits or contributions if the Employer
maintains more than one plan, the rules checked or specified below
shall apply (check one)
( ) (i) Minimum contributions shall be provided in this Plan
without regard to the benefits or contributions
provided to the Member under the Employer's other plans
(subject to the limitations of Article XII).
( ) (ii) Any Member who is also covered under the Employer's
other defined contribution plan and who is employed on
the last day of the Plan Year shall receive minimum
contributions in the amount determined under Section
14.05(a) of the Plan under the Employer's other defined
contribution plan
( ) (iii) Any Member who is also covered under the Employer's
defined benefit plan and who is employed on the last
day of the Plan Year shall receive minimum
contributions or benefits as follows:
( ) 1. A minimum contribution under this Plan in an
amount equal to 5% of the Member's
Compensation.
( ) 2. A minimum contribution under this Plan in an
amount equal to 7.5% of the Member's
Compensation.
( ) 3. A minimum benefit under the Employer's defined
benefit plan equal to the product of (a) the
Member's average Compensation for the period of
consecutive years (not exceeding five) when the
Member had the highest aggregate Compensation
from the Employer and (b) the lesser of 2% per year
of service with the Employer or 20%.
6
<PAGE>
( ) 4. A minimum benefit under the Employer's defined
benefit plan equal to the product of (a) the
Member's average Compensation for the period of
consecutive years (not exceeding five) when the
Member had the highest aggregate Compensation
from the Employer and (b) the lesser of 3% per year
of service with the Employer or 30%.
Note: The total employer contributions (Elective Deferrals, Matching
Contributions, Employer Contributions and Qualified Non-elective
Contributions) to the Trust each Fiscal Year may generally not exceed
15% of aggregate Members' compensation. The Annual Additions to a
Member's accounts in any Limitation Year cannot exceed the lesser of
$30,000 or 25% of the Member's Compensation.
7. CLAIM FOR EXCESS ELECTIVE DEFERRALS
Members who claim Excess Elective Deferrals pursuant to Section 6.02 of the
Plan for the preceding calendar year must submit their claims in writing to
the Plan Administrator by March 1.
Note: Excess Elective Deferrals distributed after April 15 are not only
includable in the Member's gross income for the year made, but are also
includable in income again in the year distributed.
8. COMPENSATION
Compensation shall mean all of each Member's
(X) W-2 earnings
( ) Compensation (as that term is defined in Section 12.05(c))
which is actually paid to the Member during
(X) the Plan Year.
( ) the calendar year ending with or within the Plan Year.
( ) the Limitation Year ending with or within the Plan Year.
7
<PAGE>
Compensation
(X) shall include ( ) shall not include
any amount which is contributed by the Employer pursuant to a salary reduction
agreement and which is not includible in the gross income of the Employee
under Section 125, 402(a)(8), 402(h) or 403(b) of the Code.
Compensation
( ) shall include (X) shall not include
any amount paid before the Member becomes eligible to participate in the Plan.
For a Self-Employed Individual covered under the Plan, Compensation means
Earned Income.
9. MEMBERSHIP/NORMAL RETIREMENT AGE
A. Each Employee will be eligible to become a Member in this plan in
accordance with Article III, except the following (check any options you
wish to elect):
( ) i. Employees who have not attained the age of (cannot exceed
----
21).
(X) ii. Employees hired after January 1, 1991 who have not completed 1
Year of Eligibility Service.
( ) iii. Employees who have not been employed for at least 6 months.
( ) iv. Employees covered by a collective bargaining agreement which
does not include this Plan, if retirement benefits were the
subject of good faith bargaining.
(X) v. Employees employed in the following classes shall be
excluded from eligibility:
( ) hourly-paid employees.
( ) salaried employees.
( ) commissioned employees.
8
<PAGE>
( ) all employees other than employees covered by a
collective bargaining agreement which includes this
Plan.
( ) employees of Related Employers, except that employees
of the following Related Employers shall be eligible
-----------------------------------
.
----------------------------------------
( ) leased employees.
(X) all employees other than hourly employees employed at
the Cleveland plant of Mueller Company.
Note: The term "Employee" includes any employee of the employer maintaining
the plan or of any other employer required to be aggregated under
Section 414(b), (c), (m) or (o) of the Code. Any individual who is a
"leased employee" of any such employer (see Section 2.11 of the Plan)
shall also be considered an Employee.
B. Entry Date is generally defined as the first day of the Plan Year and
the first day of the seventh month of the Plan Year. Check one of the
following options if you prefer an alternate definition.
( ) If this paragraph is checked, Entry Date shall mean the first day
of the Plan Year, and the first day of the fourth, seventh and
tenth month of the Plan Year.
( ) If this paragraph is checked, Entry Date shall mean the first day
of each payroll period.
C. Normal Retirement Age under the Plan shall be
(check one):
(X) Age 65
( ) Age 62
( ) Other .
--------
10. VESTING FORMULA
A. The Vesting Formula applicable to Plan Years in which the Plan is or is
deemed to be top-heavy shall be: (check one)
9
<PAGE>
( ) i. 100% vesting immediately upon participation.
(X) ii. 100% vesting after 3 (not to exceed 3) Years of Vesting Service.
( ) iii. 0% (zero or higher) vesting after 1 Year of Vesting Service.
20% (20 or higher) vesting after 2 Years of Vesting Service.
40% (40 or higher) vesting after 3 Years of Vesting Service.
60% (60 or higher) vesting after 4 Years of Vesting Service.
100% vesting after 5 Years of Vesting Service.
B. (Complete this Paragraph only if you checked Paragraph 2(B)(ii).) The
Vesting Formula applicable to Plan Years in which the Plan is not
top-heavy shall be: (check one)
( ) i. % (zero or higher) vesting after 1 Year of Vesting Service.
---
% (zero or higher) vesting after 2 Years of Vesting Service.
---
% (20 or higher) vesting after 3 Years of Vesting Service.
---
% (40 or higher) vesting after 4 Years of Vesting Service.
---
% (60 or higher) vesting after 5 Years of Vesting Service
---
% (80 or higher) vesting after 6 Years of Vesting Service
---
100% vesting after 7 Years of Vesting Service.
(X) ii. 100% after 5 (not to exceed 5) Years of Vesting Service.
11. SERVICE
A. Hours of Service shall be determined for all Employees on the basis of
actual hours for which an Employee is paid or entitled to payment,
unless the following alternative is selected (check if you do not wish
to maintain detailed records of hours paid):
( ) On the basis of weeks worked. An Employee shall be credited with
forty-five (45) hours if under Section 2.16 of the Plan such
Employee would be credited with at least one Hour of Service during
the week.
10
<PAGE>
( ) On the basis of months worked. An Employee shall be credited with
one hundred-ninety (190) hours if under Section 2.16 of the Plan
such Employee would be credited with at least one Hour of Service
during the month.
B. (Complete i and ii; 1000 Hours of Service will be required if the blanks
are not completed.)
i. The minimum number of Hours of Service required for a "Year of
Eligibility Service" shall be 1000.
ii. The minimum number of Hours of Service required for a
"Year of Vesting Service" shall be 1000.
C. Service for the following Predecessor Employer(s) shall be treated as
service for the Employer:
Mueller Company .
--------------------------------------------------
D. All of an Employee's Years of Vesting Service with the Employer are
counted to determine the vested percentage in the Employee's Employer
Account and Matching Account except: (check if you wish to elect this
option)
( ) Years of Vesting Service before the Employer maintained this plan
or a predecessor plan.
( ) Years of Vesting Service completed before the Employee attained age
18.
E. The computation period for determining an Employee's Years of Vesting
Service is the Plan Year unless the following is checked (check if you
wish to elect this option):
(X) For purposes of determining an Employee's Years of Vesting Service,
the computation periods shall be the Employee's employment years. An
employment year for an Employee is a twelve consecutive month period
beginning on his employment commencement date. His employment
commencement date is the date on which he first performed an Hour of
Service.
12. INVESTMENT AND WITHDRAWALS: (check any options you wish to elect)
(X) A. If this paragraph is checked, Members may elect the investment of
their Accounts pursuant to Section 5.08B of the Plan.
11
<PAGE>
( ) B. If this paragraph is checked, Members may make the following
withdrawals pursuant to Section 7.06(b) of the Plan (check the
options you wish to elect):
( ) Withdrawals will be permitted from the Member's
----------
Employee Account and/or Rollover Account pursuant
----------
to Section 7.06(b)(i) of the Plan.
( ) Withdrawals will be permitted from the Member's
-----------
Employer Account and/or Matching Account pursuant
--------
to Section 7.06(b)(ii) of the Plan; provided
( ) i. the Member has participated in the Plan for at least
sixty (60) months; or
( ) ii. the Member has attained age [fill in an age no less
---
than 59-1/2].
( )iii. the Member experiences a "Financial Hardship" as
defined in Section 7.06(b) of the Plan.
Note: Fully vested Employer Contributions and Matching Contributions will not be
considered Qualified Non-Elective Contributions and Qualified Matching
Contributions, respectively, if the Employer elects the above withdrawal
provision, and such contributions cannot be used to help the Plan
satisfy the ADP or ACP test.
( ) Withdrawals will be permitted from the Member's Elective
Deferral Account for purposes of a "Financial Hardship"
pursuant to Section 7.06(b)(iii) of the Plan.
( ) C. If this paragraph is checked, the Trustee shall invest a portion of
the Employer contribution in Insurance Policies. The percentage of
the Employer contribution allocable to each insurable Member's
Employer Account and Matching Account to be so invested shall be
(complete i, ii or iii):
( ) i. % (not to exceed 25%) in a term life insurance policy.
----
( ) ii. % (not to exceed 49%) in an ordinary life insurance policy.
----
( ) iii. (1) % in a term life insurance policy and
----
(2) % in an ordinary life insurance policy.
----
12
<PAGE>
The percentage in (1) plus one-half of the percentage in (2)
shall not exceed 25%.
If Paragraph 12(A) has been checked, the percentage specified
above shall constitute the maximum percentage of the Employer
Contribution and Matching Contribution which each Member may
elect to have applied to the purchase of Insurance Policies.
( ) D. If this paragraph is checked, loans are permitted under Section
7.10 of the Plan.
Note: Loans may not be made to Owner-Employees of an unincorporated
---
Employer or shareholder-employees of an Employer which is an S
Corporation.
13. FORMS OF DISTRIBUTION
Each Member may choose to have the distribution of his Accounts made
under Section 7.07 of the Plan in accordance with one of the following options
(check any options you wish to offer under the Plan):
(X) A. One lump sum payment in cash or in kind or part in cash and part in
kind.
( ) B. Payments in cash or in kind in annual, quarterly or monthly
installments over a period not exceeding one of the following
periods selected by the Member:
(i) the life expectancy of the Member;
(ii) the joint life and last survivor expectancy of the Member and
a Designated Beneficiary.
( ) C. Payments in cash or in kind in annual, quarterly or monthly
installments over a period up to 15 years as selected by the Member.
( ) D. Purchase of an immediate nontransferable annuity which meets the
requirements of Section 401(a)(9) of the Code and the regulations
promulgated thereunder.
14. TIMING OF DISTRIBUTIONS
The distribution of the Member's Accounts whose employment terminates
for reasons other than retirement, disability or death and whose
Accounts exceed $3,500 (insert
13
<PAGE>
$3,500 or more) will commence within a reasonable time after the end of
the Plan Year in which the following occurs (check one):
(X) A. The Member's termination of employment.
( ) B. The date the Member attains (or would have attained) Normal
Retirement Age.
( ) C. years from the Member's termination of employment.
----
15. LIMITATION ON CONTRIBUTIONS
If the Employer maintains or ever maintained another qualified plan in which
any Member of this Plan is (or was) a participant or could possibly become a
participant, complete this section.
A. If the Member is covered under another qualified defined contribution
plan maintained by the Employer, other than a regional prototype (check
i or ii):
( ) i. The provisions of Section 12.02 will apply as if the other
plan were a regional prototype plan.
( ) ii. (Provide the method under which the plans will limit Annual
Additions to the Maximum Permissible Amount, and will
properly reduce any Excess Amounts, in a manner that
precludes Employer discretion) .
------------ ----------------
B. If the Member is or has ever been a participant in a defined benefit
plan maintained by the Employer (provide the method under which the
plans will satisfy Section 415(e) of the Code):
-----------------------
----------------------
16. ADOPTION BY EMPLOYER:
The employer named in Paragraph 1 (the "Employer") hereby adopts the Mueller
Co. Cleveland Hourly Retirement Savings and Investment Plan consisting of this
Adoption Agreement and the Goodwin, Procter & Hoar Regional Prototype Defined
Contribution Basic Plan Document.
It is understood that the Employer assumes full responsibility for the legal
and tax aspects of its adoption of this Plan. Failure by the Employer to
complete this Adoption Agreement properly may result in disqualification of the
Plan.
14
<PAGE>
TYCO INTERNATIONAL LTD.
By: /s/ John A. Helfrich
--------------------
Authorized Signature
Date: November 15, 1994
------------------
The Employer may not rely on the opinion letter obtained by Goodwin, Procter &
Hoar from the Internal Revenue Service as evidence that the Plan is qualified
under Section 401 of the Internal Revenue Code. In order to obtain reliance with
respect to plan qualification, the Employer must apply to the appropriate key
district office of the Internal Revenue Service for a determination letter.
If the Employer has any questions regarding plan provisions, the procedure for
adoption of this regional prototype plan, and the effect of the notification
letter, please contact a member of the ERISA Department of Goodwin, Procter &
Hoar at Exchange Place, Boston, Massachusetts 02109, or by calling (617)
570-1000.
Goodwin, Procter & Hoar will inform the Employer of any amendments made to the
prototype plan or of the discontinuance or abandonment of the prototype plan.
15
77904.b1
1993 ADDENDUM
TO
MUELLER CO.
CLEVELAND HOURLY RETIREMENT SAVINGS AND INVESTMENT PLAN
-------------------------------------------------------
The Mueller Co. Cleveland Hourly Retirement Savings and Investment Plan
established effective July 1, 1992 by means of the Goodwin, Procter & Hoar
Regional Prototype Non-Standard Profit Sharing Section 401(k) Plan Basic Plan
Document No. 1, Adoption Agreement 002 and Attachment thereto is hereby further
amended as follows:
1. Effective July 1, 1993, the term "Entry Date" shall mean the first day
of each calendar quarter.
2. Effective July 1, 1993, Section 4.04B is hereby amended by adding the
following to the end thereof:
"A Member who suspends contributions may resume contributions as of any
Entry Date which succeeds the date of suspension by at least six (6)
months, by means of a written notice to the Plan Administrator at least
thirty (30) days prior to the date on which the resumption is to be
effective."
3. Effective January 1, 1993, Section 7.05(a) is hereby amended by deleting
the second, third and fourth paragraphs of said Section and substituting in lieu
thereof the following:
"If, upon termination of employment, the value of a Member's vested account
balances derived from Employer and Employee contributions is not greater
than $3,500, the Member shall receive a distribution of the value of his
vested account balances in a lump sum pursuant to the provisions of Section
7.07 within a reasonable time after his termination of employment.
If, upon termination of employment, a Member has no vested interest in his
Matching Account, the Member shall be deemed to have received a
distribution of his interest in such Account as of his termination date and
the non-vested
<PAGE>
portion of his Matching Account shall be treated as a forfeiture as of
such date and applied to reduce future Matching Contributions."
3. Effective July 1, 1993, withdrawals of a Member's Elective Deferral
Contributions in excess of the minimum one percent (1%) Elective Deferral
Contribution will be permitted from a Member's Elective Deferral Account
pursuant to Section 7.06(b)(i) of the Basic Plan Document. A Member who
withdraws from his Elective Deferral Account shall be prohibited from making
Elective Deferrals in excess of one percent (1%) of his Compensation to the
Trust for the twelve (12) month period following such withdrawal.
4. Effective October 1, 1993, with respect to each Member who elects to
make a hardship withdrawal from his Elective Deferral Account, pursuant to
Section 7.06(b) of the Basic Plan Document, in determining that such Member is
not able to meet his "Financial Hardship" from any other reasonably available
resources, the Plan Administrator may reasonably rely upon the written
certification of the Member given in accordance with the regulations promulgated
under Section 401(k) of the Code. In addition, Section 7.06(b)(iv) of the Basic
Plan is further amended to delete subsections (B) and (D) in their entireties
and to renumber subsection (C) as (B).
4. Effective October 1, 1993, Members shall be permitted to borrow from the
Plan pursuant to Section 7.10 of the Basic Plan Document; provided, however,
that Members shall not be permitted to borrow from their Employer or Matching
Accounts.
<PAGE>
IN WITNESS WHEREOF, the foregoing has been executed by a duly authorized
member on behalf of the Tyco Laboratories, Inc. Retirement Committee this 16
--
day of December, 1993.
-------
TYCO LABORATORIES, INC. RETIREMENT
COMMITTEE
By /s/ John A. Helfrich
-----------------------------------
27236.b1
10/4/93 12:10 pm
Allied Tube & Conduit
Corporation Union
Retirement Savings and
Investment Plan
ADOPTION AGREEMENT 002
USE ONLY WITH BASIC PLAN
DOCUMENT NO. 01
ADOPTION AGREEMENT
GOODWIN, PROCTER & HOAR REGIONAL PROTOTYPE NON-STANDARD
PROFIT SHARING SECTION 401(k) PLAN
1. THE EMPLOYER (Note: The term "Employer" includes all
Related Employers as defined in Section 2.12
of the Plan)
Name: Allied Tube & Conduit Employer Identification
-------------------------
Corporation Number
-------------------------
Address 16,100 South Lathrop 36-2425517
Harvey, IL 60426 ---------------
Plan Number 007
-------------
(001 or next available
number)
Nature of Business: Fiscal Year Ends:
Manufacturing 6/30
---------------------------- ------------------------
Type of Employer:
X corporation partnership
----- ----
sole proprietor other
----- ----
2. THE PLAN
A. The Plan or Amendment adopted by this Adoption
Agreement is effective July 1, 1992. (Should
ordinarily be the first day of a Fiscal Year.)
This adoption is (check one):
( ) An original adoption of an entirely new plan.
<PAGE>
(X) An amendment to and continuation of a plan originally effective
January 1, 1988 and entitled Allied Tube & Conduit Corporation Union
--------------- ---------------------------------------
Employees' Thrift Plan.
-----------------------
B. Top-Heavy status (check one):
( ) i. The Plan will always be administered as if it were
top-heavy.
( ) ii. The Employer will determine each year whether or
not the Plan is top-heavy. For purposes of
determining the top-heavy ratio, any benefit
N/A shall be discounted only for mortality and interest based on the
following (complete if you maintain or ever maintained a defined
benefit plan):
Interest rate %
-----
Mortality table .
-------------------------------
Valuation date for purposes of computing the top-heavy ratio shall
be of each year.
----------------------------
3. PLAN YEAR, LIMITATION YEAR
The Plan Year shall be the twelve consecutive month period ending on
December 31 of each year. The Limitation Year for all qualified plans of the
Employer shall be the twelve consecutive month period ending on December 31
of each year.
4. TRUSTEE
The Employer hereby designates the following to act as
Trustee under the Plan: Mellon Bank
5. PERMISSIBLE INVESTMENTS
The Permissible Investments shall include (check any options you wish to
elect):
( ) A. Such stocks, bonds, or other marketable
securities, including certificates of
participation or shares of any regulated mutual
investment company, trust or fund, put and call
2
<PAGE>
options, certain hedged covered option positions,
limited partnership interests, private letter
stock, as the Trustee from time to time selects;
provided that the Trustee shall not invest in
securities of an Employer; and that the Trustee
may hold funds of the Trust uninvested if and to
the extent it deems advisable from time to time,
and provided further that the Trustee is
authorized to commingle part or all of the assets
of the Trust in one or more trusts, including
trusts of which the Trustee is trustee, whether
now existing or hereafter created, for the
collective investment of funds held under
employees' pension or profit sharing plans or
trusts which are qualified within the meaning of
and exempt from tax under the revenue laws of the
United States, and permitted by existing or future
rulings of the United States Treasury Department
to pool their respective funds in a group trust,
in which event the instrument pursuant to which
such trust is established shall be deemed to be a
part of the Plan.
( ) B. Such guaranteed income contracts and similar
products, if any, whether issued by an insurance
company or other financial institution, as the
Trustee from time to time selects.
( ) C. Such short-term obligations from time to time
selected by the Trustee, including but not limited
to savings accounts, certificates of deposit,
variable demand notes, short-term commercial
paper, U.S. Treasury bills and notes, other
obligations with short maturities on which
interest income may vary from day to day, and
shares of mutual funds investing principally in
the foregoing.
( ) D. Such shares of one or more mutual funds or
interests in other pooled investment funds as the
Trustee from time to time selects.
(X) E. Other: Such shares of one or more mutual funds
and such guaranteed income contracts and similar
products, if any, whether issued by an insurance
company or other financial institution, as the
Employer from time to time selects.
3
<PAGE>
6. CONTRIBUTIONS AND FORFEITURES
(X) A. Elective Deferrals
------------------
If this paragraph is checked, Elective Deferrals not in excess of
20% of a Member's Compensation shall be contributed to the Trust
by the Employer in accordance with a Salary Adjustment Agreement
with the Member.
The minimum Elective Deferrals per Member shall be $ per
------
week/month.
( ) B. Employee Contributions
----------------------
If this paragraph is checked, a Member may contribute up to
% of his Compensation to the Trust on a nondeductible basis.
----
The minimum Employee Contributions per Member shall be $ per
-----
week/month.
(X) C. Matching Contributions
----------------------
If this paragraph is checked, the Employer shall make Matching
Contributions to the Trust on behalf of all Members who make
(check (i) or (ii) or both)
(X) (i) Elective Deferrals
( ) (ii) Employee Contributions
to the Trust.
The amount of Matching Contribution shall be
(check one or more below)
(X) (a) 25% percent of the Member's Elective
--
Deferrals.
( ) (b) percent of the Member's
-------
Employee Contributions.
( ) (c) such amount voted or declared
-------
by the Employer each Fiscal Year.
The Employer shall not match the Member's Elective Deferrals
and/or Employee Contributions in excess of $400, or in excess of
---
percent of the Member's Compensation.
-------
4
<PAGE>
The Matching Contributions
( ) will (X) will not
be limited to the Employer's Net Profits.
( ) D. Employer Contributions
----------------------
If this paragraph is checked, the Employer shall make Employer
Contributions to the Trust each Fiscal Year in an amount
determined as follows:
( ) (i) the amount voted or declared by the
Employer on account of such Fiscal Year.
( ) (ii) % of each eligible Member's
---
Compensation, plus the amount voted or
declared by the Employer on account of
such Fiscal Year.
( ) If this paragraph is checked, a Member is eligible to share in
the allocation of the Employer Contribution for any Plan Year if
he is an Employee on the last day of the Plan Year, or if he died,
retired, became disabled during such Plan Year, or terminated
employment during such Plan Year after being credited with more
than 500 Hours of Service.
The Employer Contributions
( ) will ( ) will not
be limited to the Employer's Net Profits.
The Employer Contributions will be allocated to each eligible
Member as follows:
( ) NOT INTEGRATED: The allocation will be made
on a pro rata basis in accordance with each
eligible Member's Compensation.
( ) INTEGRATED: The allocation will be
integrated with Social Security as set forth
in Section 5.05B(b) of the Plan.
5
<PAGE>
( ) E. Qualified Non-Elective Contributions
------------------------------------
( ) If this paragraph is checked, in any Plan Year
in which the Plan cannot satisfy either the ADP or
ACP test, the Employer may make Qualified Non-Elective
Contributions to the Trust on behalf of Non-Highly Compensated
Employees in an amount
sufficient to enable the Plan to satisfy such
tests.
( ) F. Forfeitures
-----------
Forfeitures for each Plan Year shall be (check i
or ii)
( ) (i) applied to reduce Matching Contributions
for such Plan Year.
( ) (ii) allocated in the same manner as Employer
Contributions.
( ) G. In any year in which the Plan is or is deemed to
be top-heavy, a minimum contribution in the amount
determined under Section 14.05(a) of the Plan is
required. To avoid inappropriate
N/A omissions or duplication of minimum benefits or contributions if
the Employer maintains more than one plan, the rules checked or
specified below shall apply (check one)
( ) (i) Minimum contributions shall be
provided in this Plan without
regard to the benefits or
contributions provided to the
Member under the Employer's other
plans (subject to the limitations
of Article XII).
( ) (ii) Any Member who is also covered
under the Employer's other defined
contribution plan and who is
employed on the last day of the
Plan Year shall receive minimum
contributions in the amount
determined under Section 14.05(a)
of the Plan under the Employer's
other defined contribution plan
( ) (iii) Any Member who is also covered
under the Employer's defined
benefit plan and who is employed on
the last day of the Plan Year shall
receive minimum
6
<PAGE>
contributions or benefits as
follows:
( ) 1. A minimum contribution under this
Plan in an amount equal to 5% of
the Member's Compensation.
( ) 2. A minimum contribution under this
Plan in an amount equal to 7.5% of
the Member's Compensation.
( ) 3. A minimum benefit under the
Employer's defined benefit plan
equal to the product of (a) the
Member's average Compensation for
the period of consecutive years
(not exceeding five) when the
Member had the highest aggregate
Compensation from the Employer and
(b) the lesser of 2% per year of
service with the Employer or 20%.
( ) 4. A minimum benefit under the
Employer's defined benefit plan
equal to the product of (a) the
Member's average Compensation for
the period of consecutive years
(not exceeding five) when the
Member had the highest aggregate
Compensation from the Employer and
(b) the lesser of 3% per year of
service with the Employer or 30%.
Note: The total employer contributions (Elective Deferrals, Matching
Contributions, Employer Contributions and Qualified Non-elective
Contributions) to the Trust each Fiscal Year may generally not exceed
15% of aggregate Members' compensation. The Annual Additions to a
Member's accounts in any Limitation Year cannot exceed the lesser of
$30,000 or 25% of the Member's Compensation.
7
<PAGE>
7. CLAIM FOR EXCESS ELECTIVE DEFERRALS
Members who claim Excess Elective Deferrals pursuant to Section 6.02 of the
Plan for the preceding calendar year must submit their claims in writing to
the Plan Administrator by March 1.
Note: Excess Elective Deferrals distributed after April 15 are not only
includable in the Member's gross income for the year made, but are
also includable in income again in the year distributed.
8. COMPENSATION
Compensation shall mean all of each Member's
(X) W-2 earnings
( ) Compensation (as that term is defined in Section
12.05(c))
which is actually paid to the Member during
(X) the Plan Year.
( ) the calendar year ending with or within the Plan Year.
( ) the Limitation Year ending with or within the Plan
Year.
Compensation
(X) shall include ( ) shall not include
any amount which is contributed by the Employer pursuant to a salary
reduction agreement and which is not includible in the gross income of the
Employee under Section 125, 402(a)(8), 402(h) or 403(b) of the Code.
Compensation
( ) shall include (X) shall not include
any amount paid before the Member becomes eligible to
participate in the Plan.
For an Self-Employed Individual covered under the Plan, Compensation means
Earned Income.
8
<PAGE>
9. MEMBERSHIP/NORMAL RETIREMENT AGE
A. Each Employee will be eligible to become a Member in this plan in
accordance with Article III, except the following (check any options
you wish to elect):
( ) i. Employees who have not attained the age of
(cannot exceed 21).
------
(X) ii. Employees who have not completed 1 Year of Eligibility
Service.
( ) iii. Employees who have not been employed for at
least 6 months.
( ) iv. Employees covered by a collective bargaining
agreement which does not include this Plan,
if retirement benefits were the subject of
good faith bargaining.
( ) v. Employees employed in the following classes
shall be excluded from eligibility:
--------
( ) hourly-paid employees.
( ) salaried employees.
( ) commissioned employees.
(X) all employees other than employees covered by a
collective bargaining agreement which includes this
Plan (Members of United Steel Workers Harvey Locals
6939 or 6939-3).
( ) employees of Related Employers, except
that employees of the following
Related Employers shall be
eligible
-------------------------
.
-----------------------------------
( ) leased employees.
( ) all employees other than
---------
.
-----------------------------------
Note: The term "Employee" includes any employee of the employer maintaining
the plan or of any other employer required to be aggregated under
Section 414(b), (c), (m) or (o) of the Code. Any individual who is a
"leased employee" of any such employer (see Section 2.11 of the Plan)
shall also be considered an Employee.
9
<PAGE>
B. Entry Date is generally defined as the first day of
the Plan Year and the first day of the seventh month
of the Plan Year. Check one of the following options
if you prefer an alternate definition.
( ) If this paragraph is checked, Entry Date shall
mean the first day of the Plan Year, and the
first day of the fourth, seventh and tenth month
of the Plan Year.
( ) If this paragraph is checked, Entry Date shall mean the first
day of each payroll period.
C. Normal Retirement Age under the Plan shall be
(check one):
(X) Age 65
( ) Age 62
( ) Other .
-------
10. VESTING FORMULA
A. The Vesting Formula applicable to Plan Years in which
the Plan is or is deemed to be top-heavy shall be:
(check one)
N/A
( ) i. 100% vesting immediately upon participation.
( ) ii. 100% vesting after (not to exceed 3) Years
-----
of Vesting Service.
( ) iii. 0% (zero or higher) vesting after 1 Year of
Vesting Service.
20% (20 or higher) vesting after 2 Years of
Vesting Service.
40% (40 or higher) vesting after 3 Years of
Vesting Service.
60% (60 or higher) vesting after 4 Years of
Vesting Service.
100% vesting after 5 Years of Vesting Service.
10
<PAGE>
B. (Complete this Paragraph only if you checked Paragraph
2(B)(ii).) The Vesting Formula applicable to Plan
Years in which the Plan is not top-heavy shall be:
(check one)
( ) i. % (zero or higher) vesting after 1 Year of
----
Vesting Service.
% (zero or higher) vesting after 2 Years of
----
Vesting Service.
% (20 or higher) vesting after 3 Years of
----
Vesting Service.
% (40 or higher) vesting after 4 Years of
----
Vesting Service.
% (60 or higher) vesting after 5 Years of
----
Vesting Service
% (80 or higher) vesting after 6 Years of
----
Vesting Service
100% vesting after 7 Years of Vesting Service.
(X) ii. 100% after 0 (not to exceed 5) Years of Vesting
-
Service.
11. SERVICE
A. Hours of Service shall be determined for all Employees on the basis of
actual hours for which an Employee is paid or entitled to payment,
unless the following alternative is selected (check if you do not wish
to maintain detailed records of hours paid):
( ) On the basis of weeks worked. An Employee shall be credited with
forty-five (45) hours if under Section 2.16 of the Plan such
Employee would be credited with at least one Hour of Service
during the week.
( ) On the basis of months worked. An Employee shall be credited
with one hundred-ninety (190) hours if under Section 2.16 of the
Plan such Employee would be credited with at least one Hour of
Service during the month.
11
<PAGE>
B. The minimum number of Hours of Service required for a
"Year of Eligibility Service" shall be 1000.
C. Service for the following Predecessor Employer(s)
shall be treated as service for the Employer:
-----
.
----------------------------------------------------
D. All of an Employee's Years of Vesting Service with the
Employer are counted to determine the vested
percentage in the Employee's Employer Account and
Matching Account except: (check if you wish to elect
this option)
( ) Years of Vesting Service before the Employer
maintained this plan or a predecessor plan.
( ) Years of Vesting Service completed before the
Employee attained age 18.
E. The computation period for determining an Employee's Years of Vesting
Service is the Plan Year unless the following is checked (check if you
wish to elect this option):
( ) For purposes of determining an Employee's Years of Vesting
Service, the computation periods shall be the Employee's
employment years. An employment year for an Employee is a twelve
consecutive month period beginning on his employment commencement
date. His employment commencement date is the date on which he
first performed an Hour of Service.
12. INVESTMENT AND WITHDRAWALS: (check any options you wish to
elect)
(X) A. If this paragraph is checked, Members may elect
the investment of their Accounts pursuant to
Section 5.08B of the Plan.
(X) B. If this paragraph is checked, Members may make the following
withdrawals pursuant to Section 7.06(b) of the Plan (check the
options you wish to elect):
12
<PAGE>
( ) Withdrawals will be permitted from the
Member's Employee Account and/or
----------
Rollover Account pursuant to
------------
Section 7.06(b)(i) of the Plan.
( ) Withdrawals will be permitted from the
Member's Employer Account and/or
----------
Matching Account pursuant to
--------------
Section 7.06(b)(ii) of the Plan; provided
( ) i. the Member has participated in the
Plan for at least sixty (60)
months; or
( ) ii. the Member has attained age
---
[fill in an age no less than 59-1/2].
( )iii. the Member experiences a
"Financial Hardship" as defined in
Section 7.06(b) of the Plan.
Note: Fully vested Employer Contributions and Matching
Contributions will not be considered Qualified Non-Elective
Contributions and Qualified Matching Contributions, respectively, if
the Employer elects the above withdrawal provision, and such
contributions cannot be used to help the Plan satisfy the ADP or ACP
test.
(X) Withdrawals will be permitted from the Member's Elective
Deferral Account for purposes of a "Financial Hardship"
pursuant to Section 7.06(b)(iii) of the Plan.
( ) C. If this paragraph is checked, the Trustee shall
invest a portion of the Employer contribution in
Insurance Policies. The percentage of the
Employer contribution allocable to each insurable
Member's Employer Account and Matching Account to
be so invested shall be (complete i, ii or iii):
( ) i. % (not to exceed 25%) in a term life
----
insurance policy.
( ) ii. % (not to exceed 49%) in an ordinary life
----
insurance policy.
( ) iii. (1) % in a term life insurance policy and
----
13
<PAGE>
(2) % in an ordinary life insurance policy.
----
The percentage in (1) plus one-half of the percentage in (2)
shall not exceed 25%.
If Paragraph 12(A) has been checked, the percentage
specified above shall constitute the maximum percentage of
the Employer Contribution and Matching Contribution which
each Member may elect to have applied to the purchase of
Insurance Policies.
( ) D. If this paragraph is checked, loans are permitted
under Section 7.10 of the Plan.
Note: Loans may not be made to Owner-Employees of an
---
unincorporated Employer or shareholder-employees of an
Employer which is an S Corporation.
13. FORMS OF DISTRIBUTION
Each Member may choose to have the distribution of his Accounts made under
Section 7.07 of the Plan in accordance with one of the following options (check
any options you wish to offer under the Plan):
(X) A. One lump sum payment in cash or in kind or part in
cash and part in kind.
( ) B. Payments in cash or in kind in annual, quarterly
or monthly installments over a period not
exceeding one of the following periods selected by
the Member:
(i) the life expectancy of the Member;
(ii) the joint life and last survivor expectancy
of the Member and a Designated Beneficiary.
( ) C. Payments in cash or in kind in annual, quarterly
or monthly installments over a period up to 15
years as selected by the Member.
( ) D. Purchase of an immediate nontransferable annuity
which meets the requirements of Section 401(a)(9)
of the Code and the regulations promulgated
thereunder.
14
<PAGE>
14. TIMING OF DISTRIBUTIONS
The distribution of the Member's Accounts whose employment terminates for
reasons other than retirement, disability or death and whose Accounts exceed
$3,500 (insert $3,500 or more) will commence within a reasonable time after
the end of the Plan Year in which the following occurs (check one):
(X) A. The Member's termination of employment.
( ) B. The date the Member attains (or would have
attained) Normal Retirement Age.
( ) C. years from the Member's termination of
-----
employment.
15. LIMITATION ON CONTRIBUTIONS
If the Employer maintains or ever maintained another qualified plan in which
any Member of this Plan is (or was) a participant or could possibly become a
participant, complete this section.
A. If the Member is covered under another qualified defined contribution
plan maintained by the Employer, other than a regional prototype
(check i or ii):
(X) i. The provisions of Section 12.02 will apply as if the
other plan were a regional prototype plan.
( ) ii. (Provide the method under which the plans
will limit Annual Additions to the Maximum
Permissible Amount, and will properly reduce
any Excess Amounts, in a manner that
precludes Employer discretion)
----------
.
-------------------------------------------
B. If the Member is or has ever been a participant in a defined benefit
plan maintained by the Employer (provide the method under which the
plans will satisfy Section 415(e) of the Code):
-------------------
--------------------------------------------------------------------
15
<PAGE>
16. ADOPTION BY EMPLOYER:
The employer named in Paragraph 1 (the "Employer") hereby adopts the Allied
Tube & Conduit Corporation Union Retirement Savings and Investment Plan
consisting of this Adoption Agreement and the Goodwin, Procter & Hoar
Regional Prototype Defined Contribution Basic Plan Document.
It is understood that the Employer assumes full responsibility for the legal
and tax aspects of its adoption of this Plan. Failure by the Employer to
complete this Adoption Agreement properly may result in disqualification of the
Plan.
ALLIED TUBE & CONDUIT CORPORATION
By: /s/ John A. Helfrich
------------------------------
Authorized Signature
Date: August 14, 1992
---------------------------
The Employer may not rely on the opinion letter obtained by Goodwin, Procter
& Hoar from the Internal Revenue Service as evidence that the Plan is qualified
under Section 401 of the Internal Revenue Code. In order to obtain reliance with
respect to plan qualification, the Employer must apply to the appropriate key
district office of the Internal Revenue Service for a determination letter.
If the Employer has any questions regarding plan provisions, the procedure
for adoption of this regional prototype plan, and the effect of the notification
letter, please contact a member of the ERISA Department of Goodwin, Procter &
Hoar at Exchange Place, Boston, Massachusetts 02109, or by calling (617)
570-1000.
Goodwin, Procter & Hoar will inform the Employer of any amendments made to
the prototype plan or of the discontinuance or abandonment of the prototype
plan.
ZP-4784/T
6/24/92
16
Exhibit 10.1h1
ATTACHMENT TO ALLIED TUBE & CONDUIT CORPORATION UNION
RETIREMENT SAVINGS AND INVESTMENT PLAN
1. Notwithstanding Paragraph 6C of the Adoption Agreement, no
Matching Contributions will be made for Plan Years beginning
after December 31, 1988.
2. Notwithstanding Paragraph 9 of the Adoption Agreement, each
eligible employee hired after July 1, 1992 who is 55 or
older on his date of hire is eligible to enroll in the Plan
on the first day of the month coincident with or immediately
following completion of his probationary period.
3. Section 2.08 of the Basic Plan Document is amended by
deleting said Section in its entirety and substituting the
following in lieu thereof:
"2.08 'Disability' means any medical determinable physical
or mental impairment of the Member which qualifies the
Member for Social Security disability benefits."
4. Section 4.04B of the Basic Plan Document is amended by
deleting the reference to "fifteen (15) days" and sub-
stituting therefor "thirty (30) days."
5. Section 4.04B of the Basic Plan Document is amended by
adding the following at the end thereof:
"A Member who suspends contributions may resume
contributions as of any Entry Date which succeeds the date
of suspension by at least six (6) months, by means of
written notice to the Plan Administrator at least thirty
(30) days prior to the date on which the resumption is to be
effective."
6. Section 7.05 of the Basic Plan Document is amended by adding
the following sentence at the end thereof:
"A Member who is on layoff status shall not be deemed to
have incurred a termination of employment, but such Member
shall not be eligible to make Elective Deferrals while on
layoff status."
7. Section 7.06 of the Basic Plan Document is amended by
deleting subsection (b)(iv)(B) thereof.
<PAGE>
ATTACHMENT TO ALLIED TUBE & CONDUIT CORPORATION UNION
RETIREMENT SAVINGS AND INVESTMENT PLAN
1. Notwithstanding Paragraph 6C of the Adoption Agreement, no Matching
Contributions will be made for Plan Years beginning after December 31,
1988.
2. Section 2.08 of the Basic Plan Document is amended by deleting said Section
in its entirety and substituting the following in lieu thereof:
"2.08 'Disability' means any medical determinable physical
or mental impairment of the Member which qualifies the
Member for Social Security disability benefits."
3. Section 4.04B of the Basic Plan Document is amended by deleting the
reference to "fifteen (15) days" and substituting therefor "thirty (30)
days."
4. Section 7.05 of the Basic Plan Document is amended by adding the following
sentence at the end thereof:
"A Member who is on layoff status shall not be deemed to have incurred a
termination of employment, but such Member shall not be eligible to make
Elective Deferrals while on layoff status."
5. Section 7.06 of the Basic Plan Document is amended by deleting subsection
(b) (iv) (B) thereof.
1993 ADDENDUM
TO
ALLIED TUBE & CONDUIT CORPORATION
UNION EMPLOYEES' RETIREMENT SAVINGS AND INVESTMENT PLAN
-------------------------------------------------------
The Allied Tube & Conduit Corporation Union Employees' Retirement Savings
and Investment Plan established effective January 1, 1989 by means of the
Goodwin, Procter & Hoar Regional Prototype Non-Standard Profit Sharing Section
401(k) Plan Basic Plan Document No. 1, Adoption Agreement 002 and Attachment
thereto is hereby further amended as follows:
1. Effective October 1, 1993, with respect to each Member who elects to
make a hardship withdrawal from his Elective Deferral Account, pursuant to
Section 7.06(b) of the Basic Plan Document, in determining that such Member is
not able to meet his "Financial Hardship" from any other reasonably available
resources, the Plan Administrator may reasonably rely upon the written
certification of the Member given in accordance with the regulations promulgated
under Section 401(k) of the Code. In addition, Section 7.06(b)(iv) of the Basic
Plan is further amended to delete subsections
(B) and (D) in their entireties and to renumber subsection (C) as (B).
2. Effective October 1, 1993, Members shall be permitted to borrow from the
Plan pursuant to Section 7.10 of the Basic Plan Document; provided, however,
that Members shall not be permitted to borrow from their Matching Accounts or
their Employer Accounts.
<PAGE>
IN WITNESS WHEREOF, the foregoing has been executed by a duly authorized
member on behalf of the Tyco Laboratories, Inc. Retirement Committee this
16 day of December, 1993.
- -- ---------
TYCO LABORATORIES, INC. RETIREMENT
COMMITTEE
By /s/ John A. Helfrich
----------------------------------
Allied Philadelphia Union
Retirement Savings and
Investment Plan
ADOPTION AGREEMENT 002
USE ONLY WITH BASIC PLAN
DOCUMENT NO. 01
ADOPTION AGREEMENT
GOODWIN, PROCTER & HOAR REGIONAL PROTOTYPE NON-STANDARD
PROFIT SHARING SECTION 401(k) PLAN
1. THE EMPLOYER (Note: The term "Employer" includes all
Related Employers as defined in Section 2.12
of the Plan)
Name: Tyco Laboratories, Inc. Employer Identification
-----------------------
Number
Address Tyco Park 04-2297459
--------- ------------------------
Exeter, NH 03833 Plan Number 025
------------------------------ -------------
(001 or next available
number)
Nature of Business: Fiscal Year Ends:
Manufacturing 6/30
------------------------------ ------------------------
Type of Employer:
X corporation partnership
----- -----
sole proprietor other
----- -----
2. THE PLAN
A. The Plan or Amendment adopted by this Adoption
Agreement is effective July 1, 1992. (Should
ordinarily be the first day of a Fiscal Year.)
This adoption is (check one):
( ) An original adoption of an entirely new plan.
<PAGE>
(X) An amendment to and continuation of a plan originally
effective January 1, 1991 and entitled Allied
--------------- ------
Philadelphia Union Retirement Savings and Investment
----------------------------------------------------
Plan.
----
B. Top-Heavy status (check one):
( ) i. The Plan will always be administered as if it were
top-heavy.
( ) ii. The Employer will determine each year whether or
not the Plan is top-heavy. For purposes of
determining the top-heavy ratio, any benefit
N/A shall be discounted only for mortality and
interest based on the following (complete if you
maintain or ever maintained a defined benefit
plan):
Interest rate %
----
Mortality table .
-----------------------------
Valuation date for purposes of computing the
top-heavy ratio shall be of each
----------------
year.
3. PLAN YEAR, LIMITATION YEAR
The Plan Year shall be the twelve consecutive month period
ending on December 31 of each year. The Limitation Year
for all qualified plans of the Employer shall be the twelve
consecutive month period ending on December 31 of each year.
4. TRUSTEE
The Employer hereby designates the following to act as
Trustee under the Plan: Mellon Bank
5. PERMISSIBLE INVESTMENTS
The Permissible Investments shall include (check any
options you wish to elect):
( ) A. Such stocks, bonds, or other marketable
securities, including certificates of
participation or shares of any regulated mutual
investment company, trust or fund, put and call
2
<PAGE>
options, certain hedged covered option positions,
limited partnership interests, private letter
stock, as the Trustee from time to time selects;
provided that the Trustee shall not invest in
securities of an Employer; and that the Trustee
may hold funds of the Trust uninvested if and to
the extent it deems advisable from time to time,
and provided further that the Trustee is
authorized to commingle part or all of the assets
of the Trust in one or more trusts, including
trusts of which the Trustee is trustee, whether
now existing or hereafter created, for the
collective investment of funds held under
employees' pension or profit sharing plans or
trusts which are qualified within the meaning of
and exempt from tax under the revenue laws of the
United States, and permitted by existing or future
rulings of the United States Treasury Department
to pool their respective funds in a group trust,
in which event the instrument pursuant to which
such trust is established shall be deemed to be a
part of the Plan.
( ) B. Such guaranteed income contracts and similar
products, if any, whether issued by an insurance
company or other financial institution, as the
Trustee from time to time selects.
( ) C. Such short-term obligations from time to time
selected by the Trustee, including but not limited
to savings accounts, certificates of deposit,
variable demand notes, short-term commercial
paper, U.S. Treasury bills and notes, other
obligations with short maturities on which
interest income may vary from day to day, and
shares of mutual funds investing principally in
the foregoing.
( ) D. Such shares of one or more mutual funds or
interests in other pooled investment funds as the
Trustee from time to time selects.
(X) E. Other: Such shares of one or more mutual funds
and such guaranteed income contracts and similar
products, if any, whether issued by an insurance
company or other financial institution, as the
Plan Administrator from time to time selects.
3
<PAGE>
6. CONTRIBUTIONS AND FORFEITURES
(X) A. Elective Deferrals
------------------
If this paragraph is checked, Elective Deferrals
not in excess of 10% of a Member's Compensation
shall be contributed to the Trust by the Employer
in accordance with a Salary Adjustment Agreement
with the Member.
The minimum Elective Deferrals per Member shall
be $ per week/month.
-------
( ) B. Employee Contributions
----------------------
If this paragraph is checked, a Member may
contribute up to % of his Compensation to
-------
the Trust on a nondeductible basis.
The minimum Employee Contributions per Member
shall be $ per week/month.
-------
( ) C. Matching Contributions
----------------------
If this paragraph is checked, the Employer shall
make Matching Contributions to the Trust on
behalf of all Members who make (check (i) or (ii)
or both)
( ) (i) Elective Deferrals
( ) (ii) Employee Contributions
to the Trust.
The amount of Matching Contribution shall be
(check one or more below)
( ) (a) percent of the Member's
-------
Elective Deferrals.
( ) (b) percent of the Member's
-------
Employee Contributions.
( ) (c) such amount voted or declared
-------
by the Employer each Fiscal Year.
The Employer shall not match the Member's
Elective Deferrals and/or Employee Contributions
in excess of $ , or in excess of
--------- -------
percent of the Member's Compensation.
4
<PAGE>
The Matching Contributions
( ) will ( ) will not
be limited to the Employer's Net Profits.
( ) D. Employer Contributions
----------------------
If this paragraph is checked, the Employer shall
make Employer Contributions to the Trust each
Fiscal Year in an amount determined as follows:
( ) (i) the amount voted or declared by the
Employer on account of such Fiscal Year.
( ) (ii) % of each eligible Member's
--
Compensation, plus the amount voted or
declared by the Employer on account of
such Fiscal Year.
( ) If this paragraph is checked, a Member is
eligible to share in the allocation of the
Employer Contribution for any Plan Year if he is
an Employee on the last day of the Plan Year, or
if he died, retired, became disabled during such
Plan Year, or terminated employment during such
Plan Year after being credited with more than 500
Hours of Service.
The Employer Contributions
( ) will ( ) will not
be limited to the Employer's Net Profits.
The Employer Contributions will be allocated to
each eligible Member as follows:
( ) NOT INTEGRATED: The allocation will be made
on a pro rata basis in accordance with each
eligible Member's Compensation.
( ) INTEGRATED: The allocation will be
integrated with Social Security as set forth
in Section 5.05B(b) of the Plan.
5
<PAGE>
( ) E. Qualified Non-Elective Contributions
------------------------------------
( ) If this paragraph is checked, in any Plan
Year in which the Plan cannot satisfy either the
ADP or ACP test, the Employer may make Qualified
Non-Elective Contributions to the Trust on behalf
of Non-Highly Compensated Employees in an amount
sufficient to enable the Plan to satisfy such
tests.
( ) F. Forfeitures
-----------
Forfeitures for each Plan Year shall be (check i
or ii)
( ) (i) applied to reduce Matching Contributions
for such Plan Year.
( ) (ii) allocated in the same manner as Employer
Contributions.
( ) G. In any year in which the Plan is or is deemed to
be top-heavy, a minimum contribution in the amount
determined under Section 14.05(a) of the Plan is
required. To avoid inappropriate omissions or
duplication of minimum benefits or contributions
if the Employer maintains more than one plan, the
rules checked or specified below shall apply
(check one)
( ) (i) Minimum contributions shall be
provided in this Plan without
regard to the benefits or
contributions provided to the
Member under the Employer's other
plans (subject to the limitations
of Article XII).
( ) (ii) Any Member who is also covered
under the Employer's other defined
contribution plan and who is
employed on the last day of the
Plan Year shall receive minimum
contributions in the amount
determined under Section 14.05(a)
of the Plan under the Employer's
other defined contribution plan
( ) (iii) Any Member who is also covered
under the Employer's defined
benefit plan and who is employed on
the last day of the Plan Year shall
receive minimum
6
<PAGE>
contributions or benefits as
follows:
( ) 1. A minimum contribution under this
Plan in an amount equal to 5% of
the Member's Compensation.
( ) 2. A minimum contribution under this
Plan in an amount equal to 7.5% of
the Member's Compensation.
( ) 3. A minimum benefit under the
Employer's defined benefit plan
equal to the product of (a) the
Member's average Compensation for
the period of consecutive years
(not exceeding five) when the
Member had the highest aggregate
Compensation from the Employer and
(b) the lesser of 2% per year of
service with the Employer or 20%.
( ) 4. A minimum benefit under the
Employer's defined benefit plan
equal to the product of (a) the
Member's average Compensation for
the period of consecutive years
(not exceeding five) when the
Member had the highest aggregate
Compensation from the Employer and
(b) the lesser of 3% per year of
service with the Employer or 30%.
Note: The total employer contributions (Elective Deferrals,
Matching Contributions, Employer Contributions and
Qualified Non-elective Contributions) to the Trust
each Fiscal Year may generally not exceed 15% of
aggregate Members' compensation. The Annual
Additions to a Member's accounts in any Limitation
Year cannot exceed the lesser of $30,000 or 25% of
the Member's Compensation.
7
<PAGE>
7. CLAIM FOR EXCESS ELECTIVE DEFERRALS
Members who claim Excess Elective Deferrals pursuant to
Section 6.02 of the Plan for the preceding calendar year
must submit their claims in writing to the Plan
Administrator by March 1.
Note: Excess Elective Deferrals distributed after April 15
are not only includable in the Member's gross income
for the year made, but are also includable in income
again in the year distributed.
8. COMPENSATION
Compensation shall mean all of each Member's
(X) W-2 earnings
( ) Compensation (as that term is defined in Section
12.05(c))
which is actually paid to the Member during
(X) the Plan Year.
( ) the calendar year ending with or within the Plan Year.
( ) the Limitation Year ending with or within the Plan
Year.
Compensation
(X) shall include ( ) shall not include
any amount which is contributed by the Employer pursuant to
a salary reduction agreement and which is not includible in
the gross income of the Employee under Section 125,
402(a)(8), 402(h) or 403(b) of the Code.
Compensation
( ) shall include (X) shall not include
any amount paid before the Member becomes eligible to
participate in the Plan.
For an Self-Employed Individual covered under the Plan,
Compensation means Earned Income.
8
<PAGE>
9. MEMBERSHIP/NORMAL RETIREMENT AGE
A. Each Employee will be eligible to become a Member in
this plan in accordance with Article III, except the
following (check any options you wish to elect):
( ) i. Employees who have not attained the age of
(cannot exceed 21).
------
(X) ii. Employees hired after January 1, 1991 who
have not completed 1 Year of Eligibility
Service.
( ) iii. Employees who have not been employed for at
least 6 months.
( ) iv. Employees covered by a collective bargaining
agreement which does not include this Plan,
if retirement benefits were the subject of
good faith bargaining.
( ) v. Employees employed in the following classes
shall be excluded from eligibility:
--------
( ) hourly-paid employees.
( ) salaried employees.
( ) commissioned employees.
(X) all employees other than employees
covered by a collective bargaining
agreement which includes this Plan
(Members of Local 7737 United Steel-
workers).
( ) employees of Related Employers,
except that employees of the
following Related Employers shall be
eligible
--------------------------
.
-----------------------------------
( ) leased employees.
( ) all employees other than
----------
.
-----------------------------------
Note: The term "Employee" includes any employee of the
employer maintaining the plan or of any other
employer required to be aggregated under Section
414(b), (c), (m) or (o) of the Code. Any individual
who is a "leased employee" of any such employer (see
Section 2.11 of the Plan) shall also be considered an
Employee.
9
<PAGE>
B. Entry Date is generally defined as the first day of
the Plan Year and the first day of the seventh month
of the Plan Year. Check one of the following options
if you prefer an alternate definition.
(X) If this paragraph is checked, Entry Date shall
mean the first day of the Plan Year, and the
first day of the fourth, seventh and tenth
month of the Plan Year.
( ) If this paragraph is checked, Entry Date shall
mean the first day of each payroll period.
C. Normal Retirement Age under the Plan shall be
(check one):
(X) Age 65
( ) Age 62
( ) Other .
-------
10. VESTING FORMULA
A. The Vesting Formula applicable to Plan Years in which
the Plan is or is deemed to be top-heavy shall be:
(check one)
( ) i. 100% vesting immediately upon participation.
( ) ii. 100% vesting after (not to exceed 3) Years
----
of Vesting Service.
( ) iii. 0% (zero or higher) vesting after 1 Year of
Vesting Service.
20% (20 or higher) vesting after 2 Years of
Vesting Service.
40% (40 or higher) vesting after 3 Years of
Vesting Service.
60% (60 or higher) vesting after 4 Years of
Vesting Service.
100% vesting after 5 Years of Vesting Service.
10
<PAGE>
B. (Complete this Paragraph only if you checked
Paragraph 2(B)(ii).) The Vesting Formula applicable
to Plan Years in which the Plan is not top-heavy
shall be: (check one)
( ) i. % (zero or higher) vesting after 1 Year of
---
Vesting Service.
% (zero or higher) vesting after 2 Years of
---
Vesting Service.
% (20 or higher) vesting after 3 Years of
---
Vesting Service.
% (40 or higher) vesting after 4 Years of
---
Vesting Service.
% (60 or higher) vesting after 5 Years of
---
Vesting Service
% (80 or higher) vesting after 6 Years of
Vesting Service
100% vesting after 7 Years of Vesting Service.
( ) ii. 100% after 5 (not to exceed 5) Years of Vesting
Service.
11. SERVICE
A. Hours of Service shall be determined for all
Employees on the basis of actual hours for which an
Employee is paid or entitled to payment, unless the
following alternative is selected (check if you do
not wish to maintain detailed records of hours paid):
( ) On the basis of weeks worked. An Employee shall
be credited with forty-five (45) hours if under
Section 2.16 of the Plan such Employee would be
credited with at least one Hour of Service during
the week.
( ) On the basis of months worked. An Employee shall
be credited with one hundred-ninety (190) hours
if under Section 2.16 of the Plan such Employee
would be credited with at least one Hour of
Service during the month.
11
<PAGE>
B. The minimum number of Hours of Service required for a
"Year of Eligibility Service" shall be 1000.
C. Service for the following Predecessor Employer(s)
shall be treated as service for the Employer:
-----
.
----------------------------------------------------
D. All of an Employee's Years of Vesting Service with the
Employer are counted to determine the vested
percentage in the Employee's Employer Account and
Matching Account except: (check if you wish to elect
this option)
( ) Years of Vesting Service before the Employer
maintained this plan or a predecessor plan.
( ) Years of Vesting Service completed before the
Employee attained age 18.
E. The computation period for determining an Employee's
Years of Vesting Service is the Plan Year unless the
following is checked (check if you wish to elect this
option):
( ) For purposes of determining an Employee's Years
of Vesting Service, the computation periods shall
be the Employee's employment years. An
employment year for an Employee is a twelve
consecutive month period beginning on his
employment commencement date. His employment
commencement date is the date on which he first
performed an Hour of Service.
12. INVESTMENT AND WITHDRAWALS: (check any options you wish to
elect)
(X) A. If this paragraph is checked, Members may elect
the investment of their Accounts pursuant to
Section 5.08B of the Plan.
(X) B. If this paragraph is checked, Members may make
the following withdrawals pursuant to Section
7.06(b) of the Plan (check the options you wish
to elect):
12
<PAGE>
( ) Withdrawals will be permitted from the
Member's Employee Account and/or
----------
Rollover Account pursuant to
------------
Section 7.06(b)(i) of the Plan.
( ) Withdrawals will be permitted from the
Member's Employer Account and/or
----------
Matching Account pursuant to
--------------
Section 7.06(b)(ii) of the Plan; provided
( ) i. the Member has participated in the
Plan for at least sixty (60)
months; or
( ) ii. the Member has attained age
--
[fill in an age no less than
59-1/2].
( )iii. the Member experiences a
"Financial Hardship" as defined in
Section 7.06(b) of the Plan.
Note: Fully vested Employer Contributions and Matching
Contributions will not be considered Qualified
Non-Elective Contributions and Qualified Matching
Contributions, respectively, if the Employer elects
the above withdrawal provision, and such contributions
cannot be used to help the Plan satisfy the ADP or
ACP test.
(X) Withdrawals will be permitted from the
Member's Elective Deferral Account for
purposes of a "Financial Hardship" pursuant
to Section 7.06(b)(iii) of the Plan.
( ) C. If this paragraph is checked, the Trustee shall
invest a portion of the Employer contribution in
Insurance Policies. The percentage of the
Employer contribution allocable to each insurable
Member's Employer Account and Matching Account to
be so invested shall be (complete i, ii or iii):
( ) i. % (not to exceed 25%) in a term life
---
insurance policy.
( ) ii. % (not to exceed 49%) in an ordinary life
---
insurance policy.
( ) iii. (1) % in a term life insurance policy
---
and
13
<PAGE>
(2) % in an ordinary life insurance
----
policy.
The percentage in (1) plus one-half of the
percentage in (2) shall not exceed 25%.
If Paragraph 12(A) has been checked, the
percentage specified above shall constitute
the maximum percentage of the Employer
Contribution and Matching Contribution
which each Member may elect to have applied
to the purchase of Insurance Policies.
( ) D. If this paragraph is checked, loans are permitted
under Section 7.10 of the Plan.
Note: Loans may not be made to Owner-Employees of an
---
unincorporated Employer or shareholder-employees of an
Employer which is an S Corporation.
13. FORMS OF DISTRIBUTION
Each Member may choose to have the distribution of his
Accounts made under Section 7.07 of the Plan in accordance with
one of the following options (check any options you wish to
offer under the Plan):
(X) A. One lump sum payment in cash or in kind or part in
cash and part in kind.
( ) B. Payments in cash or in kind in annual, quarterly
or monthly installments over a period not
exceeding one of the following periods selected by
the Member:
(i) the life expectancy of the Member;
(ii) the joint life and last survivor expectancy
of the Member and a Designated Beneficiary.
( ) C. Payments in cash or in kind in annual, quarterly
or monthly installments over a period up to 15
years as selected by the Member.
( ) D. Purchase of an immediate nontransferable annuity
which meets the requirements of Section 401(a)(9)
of the Code and the regulations promulgated
thereunder.
14
<PAGE>
14. TIMING OF DISTRIBUTIONS
The distribution of the Member's Accounts whose employment
terminates for reasons other than retirement, disability or
death and whose Accounts exceed $3,500 (insert $3,500 or
more) will commence within a reasonable time after the end
of the Plan Year in which the following occurs (check one):
(X) A. The Member's termination of employment.
( ) B. The date the Member attains (or would have
attained) Normal Retirement Age.
( ) C. years from the Member's termination of
----
employment.
15. LIMITATION ON CONTRIBUTIONS
If the Employer maintains or ever maintained another
qualified plan in which any Member of this Plan is (or was)
a participant or could possibly become a participant,
complete this section.
A. If the Member is covered under another qualified
defined contribution plan maintained by the Employer,
other than a regional prototype (check i or ii):
(X) i. The provisions of Section 12.02 will apply
as if the other plan were a regional
prototype plan.
( ) ii. (Provide the method under which the plans
will limit Annual Additions to the Maximum
Permissible Amount, and will properly
reduce any Excess Amounts, in a manner that
precludes Employer discretion)
------------
.
-------------------------------------------
B. If the Member is or has ever been a participant in a
defined benefit plan maintained by the Employer
(provide the method under which the plans will
satisfy Section 415(e) of the Code):
---------------
----------------------------------------------------
15
<PAGE>
16. ADOPTION BY EMPLOYER:
The employer named in Paragraph 1 (the "Employer") hereby
adopts the Allied Philadelphia Union Retirement Savings and
Investment Plan consisting of this Adoption Agreement and
the Goodwin, Procter & Hoar Regional Prototype Defined
Contribution Basic Plan Document.
It is understood that the Employer assumes full
responsibility for the legal and tax aspects of its adoption of
this Plan. Failure by the Employer to complete this Adoption
Agreement properly may result in disqualification of the
Plan.
TYCO LABORATORIES, INC.
By: /s/ John A. Helfrich
----------------------------
Authorized Signature
Date: August 14, 1992
--------------------------
The Employer may not rely on the opinion letter obtained by
Goodwin, Procter & Hoar from the Internal Revenue Service as
evidence that the Plan is qualified under Section 401 of the
Internal Revenue Code. In order to obtain reliance with
respect to plan qualification, the Employer must apply to the
appropriate key district office of the Internal Revenue Service
for a determination letter.
If the Employer has any questions regarding plan
provisions, the procedure for adoption of this regional
prototype plan, and the effect of the notification letter,
please contact a member of the ERISA Department of Goodwin,
Procter & Hoar at Exchange Place, Boston, Massachusetts 02109,
or by calling (617) 570-1000.
Goodwin, Procter & Hoar will inform the Employer of any
amendments made to the prototype plan or of the discontinuance
or abandonment of the prototype plan.
ZP-3695/T
6/24/92
16
Exhibit 10.1.i.1
ATTACHMENT TO ALLIED PHILADELPHIA UNION
RETIREMENT SAVINGS AND INVESTMENT PLAN
1. Notwithstanding Paragraph 9 of the Adoption Agreement, each
eligible employee who is hired before January 1, 1991 can
enroll in the Plan on January 1, 1991. Each eligible
employee hired after January 1, 1991 who is 55 or older on
date of hire is eligible to enroll in the Plan on the Entry
Date coincident with or immediately following his date of
hire.
2. Section 2.08 of the Basic Plan Document is amended by
deleting said Section in its entirety and substituting the
following in lieu thereof:
"2.08 'Disability' means any medical determinable physical
or mental impairment of the Member which qualifies the
Member for Social Security disability benefits."
3. Section 4.04B of the Basic Plan Document is amended by
deleting the reference to "fifteen (15) days" and sub-
stituting therefor "thirty (30) days."
4. Section 4.04B of the Basic Plan Document is amended by
adding the following at the end thereof:
"A Member who suspends contributions may resume
contributions as of any Entry Date which succeeds the date
of suspension by at least six (6) months, by means of
written notice to the Plan Administrator at least thirty
(30) days prior to the date on which the resumption is to
be effective."
5. Section 7.05 of the Basic Plan Document is amended by add-
ing the following sentence at the end thereof:
"A Member who is on layoff status shall not be deemed to
have incurred a termination of employment, but such Member
shall not be eligible to make Elective Deferrals while on
layoff status."
6. Section 7.06 of the Basic Plan Document is amended by
deleting subsection (b)(iv)(B) thereof.
Exhibit 10.1i2
1993 ADDENDUM
TO
ALLIED PHILADELPHIA UNION
RETIREMENT SAVINGS AND INVESTMENT PLAN
--------------------------------------
The Allied Philadelphia Union Retirement Savings and Investment Plan
established effective July 1, 1992 by means of the Goodwin, Procter & Hoar
Regional Prototype Non-Standard Profit Sharing Section 401(k) Plan Basic Plan
Document No. 1, Adoption Agreement 002 and Attachment thereto is hereby further
amended as follows:
1. Effective October 1, 1993, with respect to each Member who elects to
make a hardship withdrawal from his Elective Deferral Account, pursuant to
Section 7.06(b) of the Basic Plan Document, in determining that such Member is
not able to meet his "Financial Hardship" from any other reasonably available
resources, the Plan Administrator may reasonably rely upon the written
certification of the Member given in accordance with the regulations promulgated
under Section 401(k) of the Code. In addition, Section 7.06(b)(iv) of the Basic
Plan is further amended to delete subsections (B) and (D) in their entireties
and to renumber subsection (C) as (B).
2. Effective October 1, 1993, Members shall be permitted to borrow from the
Plan pursuant to Section 7.10 of the Basic Plan Document, provided, however,
that Members shall not be permitted to borrow from their Matching Accounts or
their Employer Accounts.
<PAGE>
IN WITNESS WHEREOF, the foregoing has been executed by a duly authorized
member on behalf of the Tyco Laboratories, Inc. Retirement Committee this 16
--
day of December, 1993.
-------
TYCO LABORATORIES, INC. RETIREMENT
COMMITTEE
By /s/ John A. Helfrich
-----------------------------------
Exhibit 10.1j
Anvil Products, Inc. Hourly
Retirement Savings and Investment Plan
ADOPTION AGREEMENT 002
USE ONLY WITH BASIC PLAN
DOCUMENT NO. 01
ADOPTION AGREEMENT
GOODWIN, PROCTER & HOAR REGIONAL PROTOTYPE NON-STANDARD
PROFIT SHARING SECTION 401(k) PLAN
1. THE EMPLOYER (NOTE: The term "Employer" includes all Related
Employers as defined in Section 2.12 of the Plan)
Name: Tyco Laboratories, Inc. Employer Identification Number:
----------------------
Address: Tyco Park 04-2297459
----------------- --------------------------------
Exeter, NH 03833 Plan Number 030
----------------- --------------------
(001 or next available
number)
Nature of Business: Fiscal Year Ends:
Manufacturing 6/30
- -------------------------- --------------------------------
Type of Employer:
X corporation partnership
----- -----
sole proprietor other
- ----- -----
2. THE PLAN
A. The Plan or Amendment adopted by this Adoption Agreement is
effective February 1, 1992. (Should ordinarily be the first
day of a Fiscal Year.)
This adoption is (check one):
(X) An original adoption of an entirely new plan.
<PAGE>
( ) An amendment to and continuation of a plan originally
effective and entitled
---------- ----------------------
-----------------------------------------------
----------.
B. Top-Heavy status (check one):
( ) i. The Plan will always be administered as if it were top-heavy.
(X) ii. The Employer will determine each year whether or not the Plan is
top-heavy. For purposes of determining the top-heavy ratio, any
benefit shall be discounted only for mortality and interest based
on the following (complete if you maintain or ever maintained a
defined benefit plan):
Interest rate 5%
---
Mortalitly table 1984 UP Mortality Tables .
-----------------------------
Valuation date for purposes of computing the top-heavy ratio
shall be December 31 of each year.
--------------
3. PLAN YEAR, LIMITATION YEAR
The Plan Year shall be the twelve consecutive month period ending on
December 31 of each year. The Limitation Year for all qualified plans
of the Employer shall be the twelve consecutive month period ending on
December 31 of each year.
4. TRUSTEE
The Employer hereby designates the following to act as Trustee under the
Plan:
MELLON BANK, N.A.
-----------------------------------------------------------------------
-----------------------------------------------------------------------
5. PERMISSIBLE INVESTMENTS
The Permissible Investments shall include (check any options you wish
to elect):
( ) A. Such stocks, bonds, or other marketable securities,
including certificates of participation or shares of any
regulated mutual
2
<PAGE>
investment company, trust or fund, put and call options,
certain hedged covered option positions, limited partnership
interests, private letter stock, as the Trustee from time to
time selects; provided that the Trustee shall not invest in
securities of an Employer; and that the Trustee may hold
funds of the Trust uninvested if and to the extent it deems
advisable from time to time, and provided further that the
Trustee is authorized to commingle part or all of the assets
of the Trust in one or more trusts, including trusts of
which the Trustee is trustee, whether now existing or
hereafter created, for the collective investment of funds
held under employees' pension or profit sharing plans or
trusts which are qualified within the meaning of and exempt
from tax under the revenue laws of the United States, and
permitted by existing or future rulings of the United States
Treasury Department to pool their respective funds in a
group trust, in which event the instrument pursuant to which
such trust is established shall be deemed to be a part of
the Plan.
( ) B. Such guaranteed income contracts and similar products, if
any, whether issued by an insurance company or other
financial institution, as the Trustee from time to time
selects.
( ) C. Such short-term obligations from time to time selected by
the Trustee, including but not limited to savings accounts,
certificates of deposit, variable demand notes, short-term
commercial paper, U.S. Treasury bills and notes, other
obligations with short maturities on which interest income
may vary from day to day, and shares of mutual funds
investing principally in the foregoing.
( ) D. Such shares of one or more mutual funds or interests in
other pooled investment funds as the Trustee from time to
time selects.
(X) E. Other: Such shares of one or more mutual funds and such
guaranteed income contracts and similar products, if any,
whether issued by an insurance company or other financial
institution, as the Plan Administrator from time to time
selects.
3
<PAGE>
6. CONTRIBUTIONS AND FORFEITURES
(X) A. Elective Deferrals
------------------
If this paragraph is checked, Elective Deferrals not in
excess of 10% of a Member's Compensation shall be
contributed to the Trust by the Employer in accordance with
a Salary Adjustment Agreement with the Member.
The minimum Elective Deferrals per Member shall be $
-------
per week/month.
(X) B. Employee Contributions
----------------------
If this paragraph is checked, a Member may contribute up to
10% of his Compensation to the Trust on a nondeductible
basis.
The minimum Employee Contributions per Member shall be
$ per week/month.
-----
(X) C. Matching Contributions
----------------------
If this paragraph is checked, the Employer shall make
Matching Contributions to the Trust on behalf of all Members
who make (check (i) or (ii) or both)
(X) (i) Elective Deferrals
(X) (ii) Employee Contributions
to the Trust.
The amount of Matching Contribution shall be (check one or
more below)
(X) (a) 100 percent of the Member's Elective
Deferrals.
(X) (b) 100 percent of the Member's Employee
Contributions.
( ) (c) such amount voted or declared by the
---------
Employer each Fiscal Year.
4
<PAGE>
The Employer shall not match the Member's Elective Deferrals
and Employee Contributions in excess of $__________, or in
excess of 1% percent of the Member's Compensation.
--------
The Matching Contributions
( ) will (X) will not
be limited to the Employer's Net Profits.
( ) D. Employer Contributions
----------------------
If this paragraph is checked, the Employer shall make
Employer Contributions to the Trust each Fiscal Year in an
amount determined as follows:
( ) (i) the amount voted or declared by the Employer on
account of such Fiscal Year.
( ) (ii) __% of each eligible Member's Compensation, plus
the amount voted or declared by the Employer on
account of such Fiscal Year.
( ) If this paragraph is checked, a Member is eligible to
share in the allocation of the Employer Contribution for any
Plan Year if he is an Employee on the last day of the Plan
Year, or if he died, retired, became disabled during such
Plan Year, or terminated employment during such Plan Year
after being credited with more than 500 Hours of Service.
The Employer Contributions
( ) will ( ) will not
be limited to the Employer's Net Profits.
The Employer Contributions will be allocated to each
eligible Member as follows:
( ) NOT INTEGRATED: The allocation will be made on a pro
rata basis in accordance with each eligible Member's
Compensation.
( ) INTEGRATED: The allocation will be integrated with
Social Security as set forth in Section 5.05B(b) of the
Plan.
5
<PAGE>
( ) E. Qualified Non-Elective Contributions
------------------------------------
( ) If this paragraph is checked, in any Plan Year in which
the Plan cannot satisfy either the ADP or ACP test, the
Employer may make Qualified Non-Elective Contributions to
the Trust on behalf of Non-Highly Compensated Employees in
an amount sufficient to enable the Plan to satisfy such
tests.
(X) F. Forfeitures
-----------
Forfeitures for each Plan Year shall be (check i or ii)
(X) (i) applied to reduce Matching Contributions for such
Plan Year.
( ) (ii) allocated in the same manner as Employer
Contributions.
(X) G. In any year in which the Plan is or is deemed to be top-
heavy, a minimum contribution in the amount determined under
Section 14.05(a) of the Plan is required. To avoid
inappropriate omissions or duplication of minimum benefits
or contributions if the Employer maintains more than one
plan, the rules checked or specified below shall apply
(check one)
(X) (i) Minimum contributions shall be provided in
this Plan without regard to the benefits or
contributions provided to the Member under
the Employer's other plans (subject to the
limitations of Article XII).
( ) (ii) Any Member who is also covered under the
Employer's other defined contribution plan
and who is employed on the last day of the
Plan Year shall receive minimum contributions
in the amount determined under Section
14.05(a) of the Plan under the Employer's
other defined contribution plan
( ) (iii) Any Member who is also covered under the
Employer's defined benefit plan and who is
employed
6
<PAGE>
on the last day of the Plan Year shall
receive minimum contributions or benefits as
follows:
( ) 1. A minimum contribution under this Plan
in an amount equal to 5% of the Member's
Compensation.
( ) 2. A minimum contribution under this Plan
in an amount equal to 7.5% of the Member's
Compensation.
( ) 3. A minimum benefit under the Employer's
defined benefit plan equal to the
product of (a) the Member's average
Compensation for the period of
consecutive years (not exceeding five)
when the Member had the highest
aggregate Compensation from the Employer
and (b) the lesser of 2% per year of
service with the Employer or 20%.
( ) 4. A minimum benefit under the Employer's
defined benefit plan equal to the
product of (a) the Member's average
Compensation for the period of
consecutive years (not exceeding five)
when the Member had the highest
aggregate Compensation from the Employer
and (b) the lesser of 3% per year of
service with the Employer or 30%.
Note: The total employer contributions (Elective Deferrals, Matching
Contributions, Employer Contributions and Qualified Non-elective
Contributions) to the Trust each Fiscal Year may generally not
exceed 15% of aggregate Members' compensation. The Annual
Additions to a Member's accounts in any Limitation Year cannot
exceed the lesser of $30,000 or 25% of the Member's Compensation.
7
<PAGE>
7. CLAIM FOR EXCESS ELECTIVE DEFERRALS
Members who claim Excess Elective Deferrals pursuant to Section 6.02
of the Plan for the preceding calendar year must submit their claims
in writing to the Plan Administrator by March 1.
Note: Excess Elective Deferrals distributed after April 15 are not
only includable in the Member's gross income for the year
made, but are also includable in income again in the year
distributed.
8. COMPENSATION
Compensation shall mean all of each Member's
(X) W-2 earnings
( ) Compensation (as that term is defined in Section 12.05(c))
which is actually paid to the Member during
(X) the Plan Year.
( ) the calendar year ending with or within the Plan Year.
( ) the Limitation Year ending with or within the Plan Year.
Compensation
(X) shall include ( ) shall not include
any amount which is contributed by the Employer pursuant to a salary
reduction agreement and which is not includible in the gross income of
the Employee under Section 125, 402(a)(8), 402(h) or 403(b) of the
Code.
Compensation
( ) shall include (X) shall not include
any amount paid before the Member becomes eligible to participate in
the Plan.
For an Self-Employed Individual covered under the Plan, Compensation
means Earned Income.
8
<PAGE>
9. MEMBERSHIP/NORMAL RETIREMENT AGE
A. Each Employee will be eligible to become a Member in this plan in
accordance with Article III, except the following (check any
options you wish to elect):
(X) i. Employees who have not attained the age of 21 (cannot
exceed 21).
(X) ii. Employees who have not completed 1 Year of
See Eligibility Service.
Attachment
( ) iii. Employees who have not been employed for at least 6
months.
( ) iv. Employees covered by a collective bargaining agreement
which does not include this Plan, if retirement
benefits were the subject of good faith bargaining.
(X) v. Employees employed in the following classes shall be
excluded from eligibility:
--------
( ) hourly-paid employees.
( ) salaried employees.
( ) commissioned employees.
( ) all employees other than employees covered by a
collective bargaining agreement which includes
this Plan.
( ) employees of Related Employers, except that
employees of the following Related Employers shall
be eligible ____________
_______________________________________.
( ) leased employees.
(X) all employees other than hourly employees
------------------
of Anvil Products, Inc. .
------------------------------
Note: The term "Employee" includes any employee of the employer
maintaining the plan or of any other employer required to be
aggregated under Section 414(b), (c), (m) or (o) of the Code.
Any individual who is a "leased employee" of any such employer
(see Section 2.11 of the Plan) shall also be considered an
Employee.
9
<PAGE>
B. Entry Date is generally defined as the first day of
the Plan Year and the first day of the seventh month
of the Plan Year. Check one of the following options
if you prefer an alternate definition.
( ) If this paragraph is checked, Entry Date shall
mean the first day of the Plan Year, and the
first day of the fourth, seventh and tenth
month of the Plan Year.
( ) If this paragraph is checked, Entry Date shall
mean the first day of each payroll period.
C. Normal Retirement Age under the Plan shall be
(check one):
(X) Age 65
( ) Age 62
( ) Other
----------------------------------------
10. VESTING FORMULA
A. The Vesting Formula applicable to Plan Years in which
the Plan is or is deemed to be top-heavy shall be:
(check one)
( ) i. 100% vesting immediately upon participation.
(X) ii. 100% vesting after 3 (not to exceed 3) Years
--
of Vesting Service.
( ) iii. % (zero or higher) vesting after 1 Year of
---
Vesting Service.
% (20 or higher) vesting after 2 Years of
---
Vesting Service.
% (40 or higher) vesting after 3 Years of
---
Vesting Service.
% (60 or higher) vesting after 4 Years of
---
Vesting Service.
% (80 or higher) vesting after 5 Years of
---
Vesting Service
100% vesting after 6 Years of Vesting Service.
10
<PAGE>
B. (Complete this Paragraph only if you checked
Paragraph 2(B)(ii).) The Vesting Formula applicable
to Plan Years in which the Plan is not top-heavy
shall be: (check one)
( ) i. % (zero or higher) vesting after 1 Year of
---
Vesting Service.
% (zero or higher) vesting after 2 Years of
---
Vesting Service.
% (20 or higher) vesting after 3 Years of
---
Vesting Service.
% (40 or higher) vesting after 4 Years of
---
Vesting Service.
% (60 or higher) vesting after 5 Years of
---
Vesting Service.
% (80 or higher) vesting after 6 Years of
---
Vesting Service.
100% vesting after 7 Years of Vesting Service.
(X) ii. 100% after 5 (not to exceed 5) Years of Vesting
Service.
11. SERVICE
A. Hours of Service shall be determined for all
Employees on the basis of actual hours for which an
Employee is paid or entitled to payment, unless the
following alternative is selected (check if you do
not wish to maintain detailed records of hours paid):
( ) On the basis of weeks worked. An Employee
shall be credited with forty-five (45) hours if
under Section 2.16 of the Plan such Employee
would be credited with at least one Hour of
Service during the week.
( ) On the basis of months worked. An Employee
shall be credited with one hundred-ninety (190)
hours if under Section 2.16 of the Plan such
Employee would be credited with at least one
Hour of Service during the month.
B. (Complete i and ii; 1000 Hours of Service will be
required if the blanks are not completed.)
11
<PAGE>
i. The minimum number of Hours of Service required
for a "Year of Eligibility Service" shall be 1000
ii. The minimum number of Hours of Service required
for a "Year of Vesting Service" shall be 1000.
C. Service for the following Predecessor Employer(s)
shall be treated as service for the Employer:
------
Anvil Products, Inc. (prior to acquisition).
----------------------------------------------------
D. All of an Employee's Years of Vesting Service with
the Employer are counted to determine the vested
percentage in the Employee's Employer Account and
Matching Account except: (check if you wish to elect
this option)
( ) Years of Vesting Service before the Employer
maintained this plan or a predecessor plan.
( ) Years of Vesting Service completed before the
Employee attained age 18.
E. The computation period for determining an Employee's
Years of Vesting Service is the Plan Year unless the
following is checked (check if you wish to elect this
option):
(X) For purposes of determining an Employee's Years
of Vesting Service, the computation periods
shall be the Employee's employment years. An
employment year for an Employee is a twelve
consecutive month period beginning on his
employment commencement date. His employment
commencement date is the date on which he first
performed an Hour of Service.
12. INVESTMENT AND WITHDRAWALS: (check any options you wish to elect)
(X) A. If this paragraph is checked, Members may elect
the investment of their Accounts pursuant to Section
Effective 5.08B of the Plan.
July 1, 1992
(X) B. If this paragraph is checked, Members may make
the following withdrawals pursuant to Section
7.06(b) of the Plan (check the options you wish
to elect):
12
<PAGE>
(X) Withdrawals will be permitted from the
Member's X Employee Account and/or
--------
Rollover Account pursuant to
-------------
Section 7.06(b)(i) of the Plan.
( ) Withdrawals will be permitted from the
Member's Employer Account and/or
-----------
Matching Account pursuant to
----------------
Section 7.06(b)(ii) of the Plan; provided
( ) i. the Member has participated in
the Plan for at least sixty (60)
months; or
( ) ii. the Member has attained age
--
[fill in an age no less than
59-1/2].
( )iii. the Member experiences a
"Financial Hardship" as defined
in Section 7.06(b) of the Plan.
Note: Fully vested Employer Contributions and Matching
Contributions will not be considered Qualified
Non-Elective Contributions and Qualified Matching
Contributions, respectively, if the Employer elects
the above withdrawal provision, and such contributions
cannot be used to help the Plan satisfy the ADP or
ACP test.
(X) Withdrawals will be permitted from the
Member's Elective Deferral Account for
purposes of a "Financial Hardship" pursuant
to Section 7.06(b)(iii) of the Plan.
( ) C. If this paragraph is checked, the Trustee shall
invest a portion of the Employer contribution in
Insurance Policies. The percentage of the
Employer contribution allocable to each insurable
Member's Employer Account and Matching Account to
be so invested shall be (complete i, ii or iii):
( ) i. % (not to exceed 25%) in a term life
---
insurance policy.
( ) ii. % (not to exceed 49%) in an ordinary
---
life insurance policy.
13
<PAGE>
( ) iii. (1) % in a term life insurance policy and
---
(2) % in an ordinary life insurance
---
policy.
The percentage in (1) plus one-half of the percentage in (2)
shall not exceed 25%.
If Paragraph 12(A) has been checked, the percentage
specified above shall constitute the maximum percentage of
the Employer Contribution and Matching Contribution which
each Member may elect to have applied to the purchase of
Insurance Policies.
( ) D. If this paragraph is checked, loans are permitted
under Section 7.10 of the Plan.
Note: Loans may not be made to Owner-Employees of an unincorporated
---
Employer or shareholder-employees of an Employer which is an S Corporation.
13. FORMS OF DISTRIBUTION
Each Member may choose to have the distribution of his Accounts made under
Section 7.07 of the Plan in accordance with one of the following options (check
any options you wish to offer under the Plan):
(X) A. One lump sum payment in cash or in kind or part
in cash and part in kind.
( ) B. Payments in cash or in kind in annual, quarterly
or monthly installments over a period not
exceeding one of the following periods selected
by the Member:
(i) the life expectancy of the Member;
(ii) the joint life and last survivor expectancy
of the Member and a Designated Beneficiary.
( ) C. Payments in cash or in kind in annual, quarterly
or monthly installments over a period up to 15
years as selected by the Member.
14
<PAGE>
( ) D. Purchase of an immediate nontransferable annuity
which meets the requirements of Section 401(a)(9)
of the Code and the regulations promulgated
thereunder.
14. TIMING OF DISTRIBUTIONS
The distribution of the Member's Accounts whose employment terminates for
reasons other than retirement, disability or death and whose Accounts
exceed $3,500 (insert $3,500 or more) will commence within a reasonable
time after the end of the Plan Year in which the following occurs (check
one):
(X) A. The Member's termination of employment.
( ) B. The date the Member attains (or would have
attained) Normal Retirement Age.
( ) C. years from the Member's termination of
----
employment.
15. LIMITATION ON CONTRIBUTIONS
If the Employer maintains or ever maintained another qualified plan in
which any Member of this Plan is (or was) a participant or could possibly
become a participant, complete this section.
A. If the Member is covered under another qualified
defined contribution plan maintained by the Employer,
other than a regional prototype (check i or ii):
(X) i. The provisions of Section 12.02 will apply
as if the other plan were a regional
prototype plan.
( ) ii. (Provide the method under which the plans
will limit Annual Additions to the Maximum
Permissible Amount, and will properly
reduce any Excess Amounts, in a manner that
precludes Employer discretion)
-------------
.
--------------------------------------------
B. If the Member is or has ever been a participant in a
defined benefit plan maintained by the Employer
(provide the method under which the plans will
satisfy Section 415(e) of the Code): Any reduction
-------------
will be made in the defined benefit plan.
--------------------------------------------------
15
<PAGE>
16. ADOPTION BY EMPLOYER AND TRUSTEE(S):
The employer named in Paragraph 1 (the "Employer") hereby adopts the Anvil
Products, Inc. Hourly Retirement Savings and Investment Plan consisting of
this Adoption Agreement and the Goodwin, Procter & Hoar Regional Prototype
Defined Contribution Basic Plan Document.
It is understood that the Employer assumes full responsibility for the
legal and tax aspects of its adoption of this Plan. Failure by the Employer to
complete this Adoption Agreement properly may result in disqualification of the
Plan.
Executed as of February 1, 1992.
Tyco Laboratories, Inc.
--------------------------------
Employer
By: /s/ John A. Helfrich
----------------------------
Authorized Signature
The Employer may not rely on the opinion letter obtained by Goodwin,
Procter & Hoar from the Internal Revenue Service as evidence that the Plan is
qualified under Section 401 of the Internal Revenue Code. In order to obtain
reliance with respect to plan qualification, the Employer must apply to the
appropriate key district office of the Internal Revenue Service for a
determination letter.
If the Employer has any questions regarding plan provisions, the procedure
for adoption of this regional prototype plan, and the effect of the notification
letter, please contact a member of the ERISA Department of Goodwin, Procter &
Hoar at Exchange Place, Boston, Massachusetts 02109, or by calling (617) 570-
1000.
Goodwin, Procter & Hoar will inform the Employer of any amendments made to
the prototype plan or of the discontinuance or abandonment of the prototype
plan.
16
Exhibit 10.1J1
ATTACHMENT TO ANVIL PRODUCTS, INC. HOURLY
RETIREMENT SAVINGS AND INVESTMENT PLAN
1. Notwithstanding Paragraph 6A and B of the Adoption Agreement, a
Member's Elective Deferrals and Employee contributions may not exceed
10% of the Member's Compensation.
2. Notwithstanding Paragraph 9 of the Adoption Agreement, each eligible
employee who is hired before February 1, 1992 can enroll in the Plan
on February 1, 1992. Each eligible employee hired after February 1,
1992 who is 55 or older on date of hire is eligible to enroll in the
Plan on the Entry Date coincident with or immediately following his
date of hire.
3. Section 2.08 of the Basic Plan Document is amended by deleting said
Section in its entirety and substituting the following in lieu
thereof:
"2.08 'Disability' means any medical determinable physical or mental
impairment of the Member which qualifies the Member for Social
Security disability benefits."
4. Section 4.04B of the Basic Plan Document is amended by deleting the
second, third and fourth sentences thereof and substituting therefor
the following:
"A Member may change the amount or percentage rate of his salary
adjustment or suspend his salary adjustment only in accordance with
uniform rules and regulations established by the Plan Administrator."
5. Section 4.05B of the Basic Plan Document is amended by deleting the
second, third and fourth sentences thereof and substituting therefor
the following:
"A Member may change the amount or percentage rate of his Employee
Contributions or suspend his Employee Contributions only in accordance
with uniform rules and regulations established by the Plan
Administrator."
6. Section 7.05 of the Basic Plan Document is amended by adding the
following sentence at the end thereof:
"A Member who is on layoff status shall not be deemed to have
incurred a termination of employment, but such Member shall not be
eligible to make Elective Deferrals, Employee Contributions, or to
receive Matching Contributions while and layoff status."
<PAGE>
7. Section 7.06(b)(i) is amended by deleting the last sentence of said
Section and substituting therefor the following: "Each Member who
withdraws from his Employee Account pursuant to this Section 7.06
(b)(i) shall be prohibited from making Employee Contributions and
Elective Deferrals in excess of one percent (1%) of his Compensation
to the Trust for twelve (12) months. Notwithstanding the foregoing,
Employee Contributions that received a Matching Contribution may not
be withdrawn pursuant to this Section 7.06(b)(i)."
8. Section 7.06(b)(iii) is amended by adding the following at the end
thereof: "Each Member who withdraws from his Elective Deferrals
Account pursuant to this Section 7.06(b)(iii) shall be prohibited from
making employee Contributions and Elective Deferrals in excess of one
percent (1%) of his Compensation to the Trust for twelve (12) months.
Notwithstanding the foregoing, Elective Deferrals that received a
Matching Contribution may not be withdrawn pursuant to this Section
7.06(b)(iii)."
9. Section 7.06(b)(iv) is amended by deleting subsection (B) thereof in
its entirety and renumbering subsections (C) and (D) as (B) and (C).
2
1993 ADDENDUM
TO
ANVIL PRODUCTS, INC.
HOURLY RETIREMENT SAVINGS AND INVESTMENT PLAN
---------------------------------------------
The Anvil Products, Inc. Hourly Retirement Savings and Investment Plan
established effective February 1, 1992 by means of the Goodwin, Procter & Hoar
Regional Prototype Non-Standard Profit Sharing Section 401(k) Plan Basic Plan
Document No. 1, Adoption Agreement 002 and Attachment thereto is hereby further
amended as follows:
1. Effective July 1, 1993, the term "Entry Date" shall mean the first
day of each calendar quarter.
2. Effective January 1, 1993, Section 7.05(a) is hereby amended by
deleting the second, third and fourth paragraphs of said Section and
substituting in lieu thereof the following:
"If, upon termination of employment, the value of a Member's vested
account balances derived from Employer and Employee contributions is not
greater than $3,500, the Member shall receive a distribution of the value of his
vested account balances in a lump sum pursuant to the provisions of Section
7.07 within a reasonable time after his termination of employment.
If, upon termination of employment, a Member has no vested interest in
his Matching Account and Employer Account, the Member shall be deemed to
have received a distribution of his interest in such Account as of his
termination date and the non-vested portion of his Matching Account and
Employer Account shall be treated as a forfeiture as of such date and
applied to reduce future Matching Contributions."
3. Effective October 1, 1993, with respect to each Member who elects
to make a hardship withdrawal from his Elective Deferral Account, pursuant to
Section 7.06(b) of the Basic Plan Document, in determining that such Member is
not able to
<PAGE>
meet his "Financial Hardship" from any other reasonably available resources,
the Plan Administrator may reasonably rely upon the written certification of
the Member given in accordance with the regulations promulgated under Section
401(k) of the Code. In addition, Section 7.06(b)(iv) of the Basic Plan is
further amended to delete subsections (B) and (D) in their entireties and to
renumber subsection (C) as (B).
4. Effective October 1, 1993, Members shall be permitted to borrow
from the Plan pursuant to Section 7.10 of the Basic Plan Document; provided,
however, that Members shall not be permitted to borrow from their Matching
Accounts or their Employer Accounts.
IN WITNESS WHEREOF, the foregoing has been executed by a duly
authorized member on behalf of the Tyco Laboratories, Inc. Retirement
Committee this 16 day of December, 1993.
--- --------
TYCO LABORATORIES, INC. RETIREMENT
COMMITTEE
By /s/John A. Helfrich
--------------------------------
Grinnell Corporation Columbia Plant
Retirement Savings and Investment
Plan For Hourly Employees Covered
by a Collective Bargaining Agreement
ADOPTION AGREEMENT 002
USE ONLY WITH BASIC PLAN
DOCUMENT NO. 01
ADOPTION AGREEMENT
GOODWIN, PROCTER & HOAR REGIONAL PROTOTYPE NON-STANDARD
,
PROFIT SHARING SECTION 401(k) PLAN
1. THE EMPLOYER (Note: The term "Employer" includes all
Related Employers as defined in Section 2.12
of the Plan)
Name: Tyco Laboratories, Inc. Employer Identification
----------------------- Number:
Address: Tyco Park 04-2297459
-------------------- --------------------------
Exeter, NH 03833 Plan Number 029
(001 or next available
number)
Nature of Business: Fiscal Year Ends:
Manufacturing 6/30
- ----------------------------- --------------------------
Type of Employer:
X corporation partnership
- ---- ----
sole proprietor other
- ---- ----
2. THE PLAN
A. The Plan or Amendment adopted by this Adoption
Agreement is effective July 1, 1992. (Should
ordinarily be the first day of a Fiscal Year.)
This adoption is (check one):
(X) An original adoption of an entirely new plan.
<PAGE>
( ) An amendment to and continuation of a plan originally
effective and entitled
------------------ --------
B. Top-Heavy status (check one):
( ) i. The Plan will always be administered as if it
were top-heavy.
( ) ii. The Employer will determine each year whether or
not the Plan is top-heavy. For purposes of
determining the top-heavy ratio, any benefit
N/A shall be discounted only for mortality and
interest based on the following (complete if you
maintain or ever maintained a defined benefit
plan):
Interest rate %
----
Mortality table
-------------------- .
Valuation date for purposes of computing the
top-heavy ratio shall be of each year.
----------
3. PLAN YEAR, LIMITATION YEAR
The Plan Year shall be the twelve consecutive month period
ending on December 31 of each year. The Limitation Year
for all qualified plans of the Employer shall be the twelve
consecutive month period ending on December 31 of each year.
4. TRUSTEE
The Employer hereby designates the following to act as
Trustee under the Plan:
Mellon Bank, N.A.
--------------------------------------------------------
--------------------------------------------------------
5. PERMISSIBLE INVESTMENTS
The Permissible Investments shall include (check any
options you wish to elect):
( ) A. Such stocks, bonds, or other marketable
securities, including certificates of
participation or shares of any regulated mutual
2
<PAGE>
investment company, trust or fund, put and call
options, certain hedged covered option positions,
limited partnership interests, private letter
stock, as the Trustee from time to time selects;
provided that the Trustee shall not invest in
securities of an Employer; and that the Trustee
may hold funds of the Trust uninvested if and to
the extent it deems advisable from time to time,
and provided further that the Trustee is
authorized to commingle part or all of the assets
of the Trust in one or more trusts, including
trusts of which the Trustee is trustee, whether
now existing or hereafter created, for the
collective investment of funds held under
employees' pension or profit sharing plans or
trusts which are qualified within the meaning of
and exempt from tax under the revenue laws of the
United States, and permitted by existing or
future rulings of the United States Treasury
Department to pool their respective funds in a
group trust, in which event the instrument
pursuant to which such trust is established shall
be deemed to be a part of the Plan.
( ) B. Such guaranteed income contracts and similar
products, if any, whether issued by an insurance
company or other financial institution, as the
Trustee from time to time selects.
( ) C. Such short-term obligations from time to time
selected by the Trustee, including but not
limited to savings accounts, certificates of
deposit, variable demand notes, short-term
commercial paper, U.S. Treasury bills and notes,
other obligations with short maturities on which
interest income may vary from day to day, and
shares of mutual funds investing principally in
the foregoing.
( ) D. Such shares of one or more mutual funds or
interests in other pooled investment funds as the
Trustee from time to time selects.
( X ) E. Other: Such guaranteed income contracts and
similar products, if any, whether issued by an
insurance company or other financial institution,
and such shares of one or more mutual funds, as
the Plan Administrator for time to time selects.
3
<PAGE>
6. CONTRIBUTIONS AND FORFEITURES
(X) A. Elective Deferrals
------------------
If this paragraph is checked, Elective Deferrals
not in excess of 20% of a Member's Compensation
shall be contributed to the Trust by the Employer
in accordance with a Salary Adjustment Agreement
with the Member.
The minimum Elective Deferrals per Member shall
be $150 per year.
( ) B. Employee Contributions
----------------------
If this paragraph is checked, a Member may
contribute up to % of his Compensation to
-------
the Trust on a nondeductible basis.
The minimum Employee Contributions per Member
shall be $ per week/month.
-------
(X) C. Matching Contributions
----------------------
If this paragraph is checked, the Employer shall
make Matching Contributions to the Trust on
behalf of all Members who make (check (i) or (ii)
or both)
(X) (i) Elective Deferrals
( ) (ii) Employee Contributions
to the Trust.
The amount of Matching Contribution shall be
(check one or more below)
(X) (a) 200 percent of the Member's Elective
Deferrals.
( ) (b) percent of the Member's
------
Employee Contributions.
( ) (c) such amount voted or
-------
declared by the Employer each Fiscal Year.
4
<PAGE>
The Employer shall not match the Member's
Elective Deferrals and/or Employee Contributions
in excess of $ 150 , or in excess of
------- ------
percent of the Member's Compensation.
The Matching Contributions
( ) will (X) will not
be limited to the Employer's Net Profits.
(X) D. Employer Contributions
----------------------
See If this paragraph is checked, the Employer shall
Attachment make Employer Contributions to the Trust each
Fiscal Year in an amount determined as follows:
(X) (i) the amount voted or declared by the
Employer on account of such Fiscal Year.
( ) (ii) % of each eligible Member's
--
Compensation, plus the amount voted or
declared by the Employer on account of
such Fiscal Year.
( ) If this paragraph is checked, a Member is
eligible to share in the allocation of the
Employer Contribution for any Plan Year if he is
an Employee on the last day of the Plan Year, or
if he died, retired, became disabled during such
Plan Year, or terminated employment during such
Plan Year after being credited with more than 500
Hours of Service.
The Employer Contributions
( ) will (X) will not
be limited to the Employer's Net Profits.
The Employer Contributions will be allocated to
each eligible Member as follows:
( ) NOT INTEGRATED: The allocation will be
See made on a pro rata basis in accordance with
Attachment each eligible Member's Compensation.
( ) INTEGRATED: The allocation will be
integrated with Social Security as set
forth in Section 5.05B(b) of the Plan.
5
<PAGE>
( ) E. Qualified Non-Elective Contributions
------------------------------------
( ) If this paragraph is checked, in any Plan
Year in which the Plan cannot satisfy either the
ADP or ACP test, the Employer may make Qualified
Non-Elective Contributions to the Trust on behalf
of Non-Highly Compensated Employees in an amount
sufficient to enable the Plan to satisfy such
tests.
(X) F. Forfeitures
-----------
Forfeitures for each Plan Year shall be (check i
or ii)
(X) (i) applied to reduce Matching
Contributions for such Plan Year.
( ) (ii) allocated in the same manner as
Employer Contributions.
( ) G. In any year in which the Plan is or is deemed to
be top-heavy, a minimum contribution in the
amount determined under Section 14.05(a) of the
Plan is required. To avoid inappropriate
N/A omissions or duplication of minimum benefits or
contributions if the Employer maintains more than
one plan, the rules checked or specified below
shall apply (check one)
( ) (i) Minimum contributions shall be
provided in this Plan without
regard to the benefits or
contributions provided to the
Member under the Employer's other
plans (subject to the limitations
of Article XII).
( ) (ii) Any Member who is also covered
under the Employer's other defined
contribution plan and who is
employed on the last day of the
Plan Year shall receive minimum
contributions in the amount
determined under Section 14.05(a)
of the Plan under the Employer's
other defined contribution plan
( ) (iii) Any Member who is also covered
under the Employer's defined
benefit plan and who is employed
6
<PAGE>
on the last day of the Plan Year
shall receive minimum
contributions or benefits as
follows:
( ) 1. A minimum contribution under
this Plan in an amount equal
to 5% of the Member's
Compensation.
( ) 2. A minimum contribution under
this Plan in an amount equal
to 7.5% of the Member's
Compensation.
( ) 3. A minimum benefit under the
Employer's defined benefit
plan equal to the product of
(a) the Member's average
Compensation for the period
of consecutive years (not
exceeding five) when the
Member had the highest
aggregate Compensation from
the Employer and (b) the
lesser of 2% per year of
service with the Employer or
20%.
( ) 4. A minimum benefit under the
Employer's defined benefit
plan equal to the product of
(a) the Member's average
Compensation for the period
of consecutive years (not
exceeding five) when the
Member had the highest
aggregate Compensation from
the Employer and (b) the
lesser of 3% per year of
service with the Employer or
3O%.
Note: The total employer contributions (Elective Deferrals,
Matching Contributions, Employer Contributions and
Qualified Non-elective Contributions) to the Trust
each Fiscal Year may generally not exceed 15% of
aggregate Members' compensation. The Annual
Additions to a Member's accounts in any Limitation
Year cannot exceed the lesser of $30,000 or 25% of
the Member's Compensation.
7
<PAGE>
7. CLAIM FOR EXCESS ELECTIVE DEFERRALS
Members who claim Excess Elective Deferrals pursuant to
Section 6.02 of the Plan for the preceding calendar year
must submit their claims in writing to the Plan
Administrator by March 1.
Note: Excess Elective Deferrals distributed after April 15
are not only includable in the Member's gross income
for the year made, but are also includable in income
again in the year distributed.
8. COMPENSATION
Compensation shall mean all of each Member's
(X) W-2 earnings
( ) Compensation (as that term is defined in Section
12.05(c))
which is actually paid to the Member during
(X) the Plan Year.
( ) the calendar year ending with or within the Plan Year.
( ) the Limitation Year ending with or within the Plan
Year.
Compensation
(X) shall include ( ) shall not include
any amount which is contributed by the Employer pursuant to
a salary reduction agreement and which is not includible in
the gross income of the Employee under Section 125,
402(a)(8), 402(h) or 403(b) of the Code.
Compensation
( ) shall include (X) shall not include
any amount paid before the Member becomes eligible to
participate in the Plan.
For an Self-Employed Individual covered under the Plan,
Compensation means Earned Income.
8
<PAGE>
9. MEMBERSHIP/NORMAL RETIREMENT AGE
A. Each Employee will be eligible to become a Member in
this plan in accordance with Article III, except the
following (check any options you wish to elect):
(X) i. Employees who have not attained the age of
21 (cannot exceed 21).
(X) ii. Employees who have not completed 1 Year of
See Eligibility Service.
Attachment
( ) iii. Employees who have not been employed for at
least 6 months.
( ) iv. Employees covered by a collective
bargaining agreement which does not include
this Plan, if retirement benefits were the
subject of good faith bargaining.
(X) v. Employees employed in the following classes
shall be excluded from eligibility:
--------
( ) hourly-paid employees.
( ) salaried employees.
( ) commissioned employees.
(X) all employees other than employees
covered by a collective bargaining
agreement between Grinnell
Corporation Columbia Plant and Glass,
Molders, Pottery, Plastic and Allied
Workers International Union
AFL-CIO-CLE and International
Association of Machinists and
International Association of
Machinists and Aerospace Workers,
Pattern Makers Division, Region 1 and
5, York, L.L.P.M. 2848.
( ) employees of Related Employers,
except that employees of the
following Related Employers shall be
eligible
-------------------------
-----------------------------------.
9
<PAGE>
( ) leased employees.
( ) all employees other than
Note: The term "Employee" includes any employee of the
employer maintaining the plan or of any other
employer required to be aggregated under Section
414(b), (c), (m) or (o) of the Code. Any individual
who is a "leased employee" of any such employer (see
Section 2.11 of the Plan) shall also be considered an
Employee.
B. Entry Date is generally defined as the first day of
the Plan Year and the first day of the seventh month
of the Plan Year. Check one of the following options
if you prefer an alternate definition.
( ) If this paragraph is checked, Entry Date shall
mean the first day of the Plan Year, and the
first day of the fourth, seventh and tenth
month of the Plan Year.
( ) If this paragraph is checked, Entry Date shall
mean the first day of each payroll period.
C. Normal Retirement Age under the Plan shall be
(check one):
( ) Age 65
( ) Age 62
( ) Other 55
10. VESTING FORMULA
A. The Vesting Formula applicable to Plan Years in which
the Plan is or is deemed to be top-heavy shall be:
(check one)
( ) i. 100% vesting immediately upon participation.
( ) ii. 100% vesting after (not to exceed 3) Years
----
of Vesting Service.
10
<PAGE>
( ) iii. __% (zero or higher) vesting after 1 Year of
Vesting Service.
__% (20 or higher) vesting after 2 Years of
Vesting Service.
__% (40 or higher) vesting after 3 Years of
Vesting Service.
__% (60 or higher) vesting after 4 Years of
Vesting Service.
__% (80 or higher) vesting after 5 Years of
Vesting Service
100% vesting after 6 Years of Vesting Service.
B. (Complete this Paragraph only if you checked
Paragraph 2(B)(ii).) The Vesting Formula applicable
to Plan Years in which the Plan is not top-heavy
shall be: (check one)
( ) i. __% (zero or higher) vesting after 1 Year of
Vesting Service.
__% (zero or higher) vesting after 2 Years of
Vesting Service.
__% (20 or higher) vesting after 3 Years of
Vesting Service.
__% (40 or higher) vesting after 4 Years of
Vesting Service.
__% (60 or higher) vesting after 5 Years of
Vesting Service
__% (80 or higher) vesting after 6 Years of
Vesting Service
100% vesting after 7 Years of Vesting Service.
(X) ii. 100% after 5 (not to exceed 5) Years of Vesting
Service.
11
<PAGE>
11. SERVICE
A. Hours of Service shall be determined for all
Employees on the basis of actual hours for which an
Employee is paid or entitled to payment, unless the
following alternative is selected (check if you do
not wish to maintain detailed records of hours paid):
( ) On the basis of weeks worked. An Employee
shall be credited with forty-five (45) hours if
under Section 2.16 of the Plan such Employee
would be credited with at least one Hour of
Service during the week.
( ) On the basis of months worked. An Employee
shall be credited with one hundred-ninety (190)
hours if under Section 2.16 of the Plan such
Employee would be credited with at least one
Hour of Service during the month.
B. (Complete i and ii; 1000 Hours of Service will be
required if the blanks are not completed.)
i. The minimum number of Hours of Service required
for a "Year of Eligibility Service" shall be 1000
ii. The minimum number of Hours of Service required
for a "Year of Vesting Service" shall be 1000.
C. Service for the following Predecessor Employer(s)
shall be treated as service for the Employer:
--------
-------------------------------------------------------
D. All of an Employee's Years of Vesting Service with
the Employer are counted to determine the vested
percentage in the Employee's Employer Account and
Matching Account except: (check if you wish to elect
this option)
( ) Years of Vesting Service before the Employer
maintained this plan or a predecessor plan.
( ) Years of Vesting Service completed before the
Employee attained age 18.
E. The computation period for determining an Employee's
Years of Vesting Service is the Plan Year unless the
following is checked (check if you wish to elect this
option):
12
<PAGE>
(X) For purposes of determining an Employee's Years
of Vesting Service, the computation periods
shall be the Employee's employment years. An
employment year for an Employee is a twelve
consecutive month period beginning on his
employment commencement date. His employment
commencement date is the date on which he first
performed an Hour of Service.
12. INVESTMENT AND WITHDRAWALS: (check any options you wish to
elect)
(X) A. If this paragraph is checked, Members may elect
the investment of their Accounts pursuant to Section
5.08B of the Plan.
( ) B. If this paragraph is checked, Members may make
the following withdrawals pursuant to Section
7.06(b) of the Plan (check the options you wish
to elect):
( ) Withdrawals will be permitted from the
Member's Employee Account and/or
---
Rollover Account pursuant to
----
Section 7.06(b)(i) of the Plan.
( ) Withdrawals will be permitted from the
Member's Employer Account and/or
----
Matching Account pursuant to
----
Section 7.06(b)(ii) of the Plan; provided
( ) i. the Member has participated in
the Plan for at least sixty (60)
months; or
( ) ii. the Member has attained age __
[fill in an age no less than
59-1/2].
( )iii. the Member experiences a
"Financial Hardship" as defined
in Section 7.06(b) of the Plan.
Note: Fully vested Employer Contributions and Matching
Contributions will not be considered Qualified
Non-Elective Contributions and Qualified Matching
Contributions, respectively, if the Employer elects
the above withdrawal provision, and such contributions
cannot be used to help the Plan satisfy the ADP or
ACP test.
13
<PAGE>
( ) Withdrawals will be permitted from the
Member's Elective Deferral Account for
purposes of a "Financial Hardship" pursuant
to Section 7.06(b)(iii) of the Plan.
( ) C. If this paragraph is checked, the Trustee shall
invest a portion of the Employer contribution in
Insurance Policies. The percentage of the
Employer contribution allocable to each insurable
Member's Employer Account and Matching Account to
be so invested shall be (complete i, ii or iii):
( ) i. % (not to exceed 25%) in a term life
----
insurance policy.
ii. % (not to exceed 49%) in an ordinary
----
life insurance policy.
( ) iii. (1) % in a term life insurance policy
----
and
(2) % in an ordinary life insurance
----
policy.
The percentage in (1) plus one-half of the
percentage in (2) shall not exceed 25%.
If Paragraph 12(A) has been checked, the
percentage specified above shall constitute
the maximum percentage of the Employer
Contribution and Matching Contribution
which each Member may elect to have applied
to the purchase of Insurance Policies.
( ) D. If this paragraph is checked, loans are permitted
under Section 7.10 of the Plan.
Note: Loans may not be made to Owner-Employees of an
---
unincorporated Employer or shareholder-employees of an
Employer which is an S Corporation.
13. FORMS OF DISTRIBUTION
Each Member may choose to have the distribution of his
Accounts made under Section 7.07 of the Plan in accordance with
one of the following options (check any options you wish to
offer under the Plan):
14
<PAGE>
(X) A. One lump sum payment in cash or in kind or part
in cash and part in kind.
( ) B. Payments in cash or in kind in annual, quarterly
or monthly installments over a period not
exceeding one of the following periods selected
by the Member:
(i) the life expectancy of the Member;
(ii) the joint life and last survivor expectancy
of the Member and a Designated Beneficiary.
( ) C. Payments in cash or in kind in annual, quarterly
or monthly installments over a period up to 15
years as selected by the Member.
( ) D. Purchase of an immediate nontransferable annuity
which meets the requirements of Section 401(a)(9)
of the Code and the regulations promulgated
thereunder.
14. TIMING OF DISTRIBUTIONS
The distribution of the Member's Accounts whose employment
terminates for reasons other than retirement, disability or
death and whose Accounts exceed $3,500 (insert $3,500 or
more) will commence within a reasonable time after the end
of the Plan Year in which the following occurs (check one):
(X) A. The Member's termination of employment.
( ) B. The date the Member attains (or would have
attained) Normal Retirement Age.
( ) C. years from the Member's termination of
----
employment.
15. LIMITATION ON CONTRIBUTIONS
If the Employer maintains or ever maintained another
qualified plan in which any Member of this Plan is (or was)
a participant or could possibly become a participant,
complete this section.
A. If the Member is covered under another qualified
defined contribution plan maintained by the Employer,
other than a regional prototype (check i or ii):
15
<PAGE>
(X) i. The provisions of Section 12.02 will apply
as if the other plan were a regional
prototype plan.
( ) ii. (Provide the method under which the plans
will limit Annual Additions to the Maximum
Permissible Amount, and will properly
reduce any Excess Amounts, in a manner that
precludes Employer discretion)
-----------
------------------------------------------
B. If the Member is or has ever been a participant in a defined
benefit plan maintained by the Employer (provide the method
under which the plans will satisfy Section 415(e) of the
Code): Any reduction will be made in the defined benefit plan.
------------------------------------------------------
16. ADOPTION BY EMPLOYER AND TRUSTEE(S):
The employer named in Paragraph 1 (the "Employer") hereby adopts the
Grinnell Corporation Columbia Plant Retirement Savings and Investment Plan
For Hourly Employees Covered by a Collective Bargaining Agreement consisting
of this Adoption Agreement and the Goodwin, Procter & Hoar Regional
Prototype Defined Contribution Basic Plan Document.
It is understood that the Employer assumes full responsibility for the legal
and tax aspects of its adoption of this Plan. Failure by the Employer to
complete this Adoption Agreement properly may result in disqualification of the
Plan.
Tyco Laboratories, Inc.
--------------------------------
Employer
By: /s/ John A. Helfrich
-----------------------------
Authorized Signature
Date: April 12, 1993
---------------------------
The Employer may not rely on the opinion letter obtained by Goodwin,
Procter & Hoar from the Internal Revenue Service as evidence that the Plan is
qualified under Section 401 of the Internal Revenue Code. In order to obtain
reliance with respect to plan qualification, the Employer must apply to the
appropriate key district office of the Internal Revenue Service for a
determination letter.
16
<PAGE>
If the Employer has any questions regarding plan
provisions, the procedure for adoption of this regional
prototype plan, and the effect of the notification letter,
please contact a member of the ERISA Department of Goodwin,
Procter & Hoar at Exchange Place, Boston, Massachusetts 02109,
or by calling (617) 570-1000.
Goodwin, Procter & Hoar will inform the Employer of any
amendments made to the prototype plan or of the discontinuance
or abandonment of the prototype plan.
ATTACHMENT TO GRINNELL CORPORATION COLUMBIA PLANT
RETIREMENT SAVINGS AND INVESTMENT PLAN
FOR HOURLY EMPLOYEES COVERED BY A
COLLECTIVE BARGAINING AGREEMENT
1. In addition to the Matching Contribution provided in
Paragraph 6C of the Adoption Agreement, the Employer shall
also make an initial Employer Contribution equal to $100
for each Member who elects to enroll in the Plan on July 1,
1992 and an additional initial Employer Contribution equal
to $200 for each Member whose age plus Years of Vesting
Service equal 80 points or greater and who elects to enroll
in the Plan on July 1, 1992. Any other Employer
Contribution made to the Plan shall be allocated on a per
capita basis to each Participant who is actively employed
on the date of such contribution. The allocation language
set forth herein shall override any language to the
contrary in Paragraph 6D of the Adoption Agreement and
Section 5.05B of the Basic Plan Document.
2. Notwithstanding Paragraph 9 of the Adoption Agreement, each eligible
employee who is hired before July 1, 1992 can enroll in the Plan on July 1,
1992. Each eligible employee hired after July 1, 1992 who is 55 or older on
date of hire is eligible to enroll in the Plan on the Entry Date coincident
with or immediately following his date of hire.
3. Section 2.08 of the Basic Plan Document is amended by deleting said Section
in its entirety and substituting the following in lieu thereof:
"2.08 'Disability' means any medical determinable physical or mental
impairment of the Member which qualifies the Member for Social Security
disability benefits."
4. Section 4.04B of the Basic Plan Document is amended by
deleting the reference to "fifteen (15) days" and sub-
stituting therefor "thirty (30) days."
5. Section 4.04B of the Basic Plan Document is amended by
adding the following at the end thereof:
"A Member who suspends contributions may resume contributions as of any
Entry Date which succeeds the date of suspension by at least six (6)
months, by means of written notice to the Plan Administrator at least
thirty (30) days prior to the date on which the resumption is to be
effective."
<PAGE>
6. Section 7.05 of the Basic Plan Document is amended by add-
ing the following sentence at the end thereof:
"A Member who is on layoff status shall not be deemed to have incurred a
termination of employment, but such Member shall not be eligible to make
Elective Deferrals or to receive Matching Contributions and Employer
Contributions while on layoff status."
Exhibit 10.1k2
1993 ADDENDUM
TO
GRINNELL CORPORATION COLUMBIA PLANT
RETIREMENT SAVINGS AND INVESTMENT PLAN FOR HOURLY
EMPLOYEES COVERED BY A COLLECTIVE BARGAINING AGREEMENT
------------------------------------------------------
The Grinnell Corporation Columbia Plant Retirement Savings and Investment
Plan for Hourly Employees Covered by a Collective Bargaining Agreement
established effective July 1, 1992 by means of the Goodwin, Procter & Hoar
Regional Prototype Non-Standard Profit Sharing Section 401(k) Plan Basic Plan
Document No. 1, Adoption Agreement 002 and Attachment thereto is hereby further
amended as follows:
1. Effective July 1, 1993, the term "Entry Date" shall mean the first day
of each calendar quarter.
2. Effective January 1, 1993, Section 7.05(a) is hereby amended by deleting
the second, third and fourth paragraphs of said Section and substituting in lieu
thereof the following:
"If, upon termination of employment, the value of a Member's vested account
balances derived from Employer and Employee contributions is not greater
than $3,500, the Member shall receive a distribution of the value of his
vested account balances in a lump sum pursuant to the provisions of Section
7.07 within a reasonable time after his termination of employment.
If, upon termination of employment, a Member has no vested interest in his
Matching Account and Employer Account, the Member shall be deemed to have
received a distribution of his interest in such Account as of his
termination date and the non-vested portion of his Matching Account and
Employer Account shall be treated as a forfeiture as of such date and
applied to reduce future Matching Contributions."
<PAGE>
3. Effective October 1, 1993, Members shall be permitted to borrow from the
Plan pursuant to Section 7.10 of the Basic Plan Document; provided, however,
that Members shall not be permitted to borrow from their Matching Accounts or
their Employer Accounts.
IN WITNESS WHEREOF, the foregoing has been executed by a duly authorized
member on behalf of the Tyco Laboratories, Inc. Retirement Committee this 16
--
day of December, 1993.
--------
TYCO LABORATORIES, INC. RETIREMENT
COMMITTEE
By /s/ John A. Helfrich
-----------------------------------
Exhibit 10.1k3
1994 ADDENDUM
TO
GRINNELL CORPORATION COLUMBIA PLANT
RETIREMENT SAVINGS AND INVESTMENT PLAN FOR HOURLY
EMPLOYEES COVERED BY A COLLECTIVE BARGAINING AGREEMENT
------------------------------------------------------
The Grinnell Corporation Columbia Plant Retirement Savings and Investment
Plan for Hourly Employees Covered by a Collective Bargaining Agreement
established effective July 1, 1992 by means of the Goodwin, Procter & Hoar
Regional Prototype Non-Standard Profit Sharing Section 401(k) Plan Basic Plan
Document No. 1, Adoption Agreement 002 and Attachment thereto is hereby further
amended effective October 1, 1994 by adding a provision thereto whereby
withdrawals of a Member's Elective Deferrals in excess of the minimum $150
Elective Deferrals will be permitted from a Member's Elective Deferral Account
pursuant to Section 7.06(b)(iii) of the Basic Plan Document. A Member who
withdraws from his Elective Deferral Account shall be prohibited from making
Elective Deferrals in excess of the amount eligible to receive Matching
Contributions for the twelve (12) month period following such withdrawal.
With respect to each Member who elects to make a hardship withdrawal from
his Elective Deferral Account, pursuant to Section 7.06(b) of the Basic Plan
Document, in determining that such Member is not able to meet his "Financial
Hardship" from any other reasonably available resources, the Plan Administrator
may reasonably rely upon the written certification of the Member given in
accordance with the regulations promulgated under Section 401(k) of the Code. In
addition, Section
<PAGE>
7.06(b)(iv) of the Basic Plan is further amended to delete
subsections (B) and (D) in their entireties and to renumber subsection (C) as
(B).
IN WITNESS WHEREOF, the foregoing has been executed by a duly authorized
member on behalf of the Tyco International Ltd. Retirement Committee this 17
--
day of October, 1994.
--------
TYCO INTERNATIONAL LTD. RETIREMENT
COMMITTEE
By /s/ John A. Helfrich
-----------------------------------
TYCO INTERNATIONAL LTD.
RETIREMENT SAVINGS AND INVESTMENT PLAN
FOR HOURLY EMPLOYEES COVERED BY A
COLLECTIVE BARGAINING AGREEMENT
Amended and Restated as of July 1, 1993
---------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
FORWARD. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . 2
1.01 "AFFILIATED COMPANY" . . . . . . . . . . . . . . . . 2
1.02 "BASIC TAX-DEFERRED CONTRIBUTIONS" . . . . . . . . . 2
1.03 "BENEFICIARY". . . . . . . . . . . . . . . . . . . . 2
1.04 "BREAK IN SERVICE" . . . . . . . . . . . . . . . . . 2
1.05 "CODE" . . . . . . . . . . . . . . . . . . . . . . . 3
1.06 "COMMITTEE". . . . . . . . . . . . . . . . . . . . . 3
1.07 "COMPENSATION" . . . . . . . . . . . . . . . . . . . 3
1.08 "COMPUTATION PERIOD" . . . . . . . . . . . . . . . . 4
1.09 "DISABILITY" . . . . . . . . . . . . . . . . . . . . 4
1.10 "EFFECTIVE DATE" . . . . . . . . . . . . . . . . . . 5
1.11 "ELIGIBLE EMPLOYEE". . . . . . . . . . . . . . . . . 5
1.12 "EMPLOYEE" . . . . . . . . . . . . . . . . . . . . . 5
1.13 "EMPLOYER" . . . . . . . . . . . . . . . . . . . . . 5
1.14 "EMPLOYER ACCOUNT" . . . . . . . . . . . . . . . . . 5
1.15 "EMPLOYER MATCHING CONTRIBUTIONS". . . . . . . . . . 5
1.16 "EMPLOYMENT COMMENCEMENT DATE" . . . . . . . . . . . 5
1.17 "ENTRY DATE" . . . . . . . . . . . . . . . . . . . . 5
1.18 "ERISA". . . . . . . . . . . . . . . . . . . . . . . 6
1.19 "FAMILY MEMBER". . . . . . . . . . . . . . . . . . . 6
1.20 "FORFEITURE DATE". . . . . . . . . . . . . . . . . . 6
1.21 "HIGHLY COMPENSATED EMPLOYEE". . . . . . . . . . . . 6
1.22 "HOUR OF SERVICE". . . . . . . . . . . . . . . . . . 6
1.23 "INVESTMENT FUND" or "INVESTMENT FUNDS". . . . . . . 7
1.24 "NORMAL RETIREMENT DATE" . . . . . . . . . . . . . . 7
1.25 "PARTICIPANT". . . . . . . . . . . . . . . . . . . . 7
1.26 "PLAN" . . . . . . . . . . . . . . . . . . . . . . . 7
1.27 "PLAN ADMINISTRATOR" . . . . . . . . . . . . . . . . 8
1.28 "PLAN SPONSOR" . . . . . . . . . . . . . . . . . . . 8
1.29 "PLAN YEAR". . . . . . . . . . . . . . . . . . . . . 8
1.30 "ROLLOVER ACCOUNT" . . . . . . . . . . . . . . . . . 8
1.31 "ROLLOVER CONTRIBUTIONS" . . . . . . . . . . . . . . 8
1.32 "SUPPLEMENTAL TAX-DEFERRED CONTRIBUTIONS". . . . . . 8
1.33 "TAX-DEFERRED ACCOUNT" . . . . . . . . . . . . . . . 8
1.34 "TAX-DEFERRED CONTRIBUTIONS" . . . . . . . . . . . . 9
1.35 "TRUST". . . . . . . . . . . . . . . . . . . . . . . 9
1.36 "TRUSTEE". . . . . . . . . . . . . . . . . . . . . . 9
(i)
<PAGE>
1.37 "VALUATION DATE" . . . . . . . . . . . . . . . . . . 9
1.38 "VOLUNTARY ACCOUNT". . . . . . . . . . . . . . . . . 9
1.39 "VOLUNTARY TAX-DEFERRED CONTRIBUTIONS" . . . . . . . 9
1.40 "YEAR OF ELIGIBILITY SERVICE". . . . . . . . . . . . 9
1.41 "YEAR OF VESTING SERVICE". . . . . . . . . . . . . . 9
ARTICLE II PLAN PARTICIPATION . . . . . . . . . . . . . . . . 11
2.01 PARTICIPATION. . . . . . . . . . . . . . . . . . . . 11
2.02 CESSATIONS OF PARTICIPATION AND ACTIVE
PARTICIPATION. . . . . . . . . . . . . . . . . . . . 12
2.03 REINSTATEMENT OF ACTIVE PARTICIPATION. . . . . . . . 12
2.04 BREAK IN SERVICE . . . . . . . . . . . . . . . . . . 12
2.05 CHANGES IN EMPLOYMENT STATUS . . . . . . . . . . . . 13
ARTICLE III CONTRIBUTIONS . . . . . . . . . . . . . . . . . . 15
3.01 BASIC TAX-DEFERRED CONTRIBUTIONS . . . . . . . . . . 15
3.03 EMPLOYER MATCHING CONTRIBUTIONS. . . . . . . . . . . 16
3.04 ROLLOVER CONTRIBUTIONS . . . . . . . . . . . . . . . 16
3.05 VOLUNTARY TAX-DEFERRED CONTRIBUTIONS . . . . . . . . 17
3.06 FORFEITURES. . . . . . . . . . . . . . . . . . . . . 18
3.07 DETERMINATION OF CONTRIBUTIONS . . . . . . . . . . . 18
3.08 PAYMENT OF CONTRIBUTIONS . . . . . . . . . . . . . . 18
3.08 FUNDING. . . . . . . . . . . . . . . . . . . . . . . 19
3.08 PROFITS NOT REQUIRED . . . . . . . . . . . . . . . . 19
3.09 ELECTION OF INVESTMENTS. . . . . . . . . . . . . . . 19
ARTICLE IV LIMITATIONS ON CONTRIBUTIONS AND ALLOCATIONS . . . 21
4.01 LIMITATION ON TAX-DEFERRED CONTRIBUTIONS . . . . . . 21
4.02 LIMITATIONS ON ANNUAL ADDITIONS. . . . . . . . . . . 25
ARTICLE V WITHDRAWALS PRIOR TO TERMINATION OF EMPLOYMENT. . . 28
5.01 WITHDRAWALS FROM VOLUNTARY ACCOUNTS. . . . . . . . . 28
5.02 RESUMPTION OF VOLUNTARY TAX-DEFERRED
CONTRIBUTIONS. . . . . . . . . . . . . . . . . . . . 30
5.03 PROCEDURE FOR WITHDRAWAL . . . . . . . . . . . . . . 30
ARTICLE VI VESTING, TERMINATION OF EMPLOYMENT AND
FORFEITURES . . . . . . . . . . . . . . . . . . . . . . . 31
6.01 VESTING. . . . . . . . . . . . . . . . . . . . . . . 31
(ii)
<PAGE>
6.02 TERMINATION OF EMPLOYMENT. . . . . . . . . . . . . . 31
6.03 FORFEITURES. . . . . . . . . . . . . . . . . . . . . 32
ARTICLE VII DISTRIBUTIONS AT RETIREMENT, DEATH OR DISABILITY. 34
7.01 DISTRIBUTIONS AT RETIREMENT. . . . . . . . . . . . . 34
7.02 DISTRIBUTIONS UPON INCURRING DISABILITY. . . . . . . 34
7.03 DISTRIBUTIONS AT DEATH . . . . . . . . . . . . . . . 34
7.04 LOANS TO PARTICIPANTS. . . . . . . . . . . . . . . . 36
ARTICLE VIII ADMINISTRATION . . . . . . . . . . . . . . . . . 39
8.01 ALLOCATION OF RESPONSIBILITY . . . . . . . . . . . . 39
8.02 APPOINTMENT OF PLAN ADMINISTRATOR. . . . . . . . . . 39
8.03 CLAIMS PROCEDURE . . . . . . . . . . . . . . . . . . 40
8.04 RECORDS AND REPORTS. . . . . . . . . . . . . . . . . 40
8.05 POWERS AND DUTIES OF THE PLAN ADMINISTRATOR. . . . . 41
8.06 RULES AND DECISIONS. . . . . . . . . . . . . . . . . 42
8.07 AUTHORIZATION OF BENEFIT PAYMENTS. . . . . . . . . . 42
8.08 APPLICATION AND FORMS FOR BENEFITS . . . . . . . . . 42
8.09 FACILITY OF PAYMENT. . . . . . . . . . . . . . . . . 42
8.10 COMPENSATION OF PLAN ADMINISTRATOR AND PLAN
EXPENSES . . . . . . . . . . . . . . . . . . . . . . 43
8.11 INDEMNIFICATION. . . . . . . . . . . . . . . . . . . 43
ARTICLE IX MISCELLANEOUS. . . . . . . . . . . . . . . . . . . 44
9.01 NONGUARANTEE OF EMPLOYMENT . . . . . . . . . . . . . 44
9.02 RIGHTS OF EMPLOYEES AND BENEFICIARIES. . . . . . . . 44
9.03 NONALIENATION OF BENEFITS. . . . . . . . . . . . . . 44
9.04 DISCONTINUANCE OF EMPLOYER CONTRIBUTIONS . . . . . . 45
9.05 REVERSION TO EMPLOYER. . . . . . . . . . . . . . . . 45
9.06 COMMENCEMENT AND TIMING OF DISTRIBUTIONS . . . . . . 45
9.07 JURISDICTION . . . . . . . . . . . . . . . . . . . . 47
9.08 LEASED EMPLOYEES . . . . . . . . . . . . . . . . . . 48
ARTICLE X AMENDMENTS AND ACTION BY EMPLOYER . . . . . . . . . 49
10.01 AMENDMENTS. . . . . . . . . . . . . . . . . . . 49
10.02 ACTION BY EMPLOYER. . . . . . . . . . . . . . . 49
ARTICLE XI SUCCESSOR EMPLOYER AND MERGER OR CONSOLIDATION
OF PLANS . . . . . . . . . . . . . . . . . . . . 50
11.01 SUCCESSOR EMPLOYER. . . . . . . . . . . . . . . 50
(iii)
<PAGE>
11.02 PLAN ASSETS . . . . . . . . . . . . . . . . . . 50
ARTICLE XII PLAN TERMINATION. . . . . . . . . . . . . . . . . 52
12.01 RIGHT TO TERMINATE. . . . . . . . . . . . . . . 52
12.02 PARTIAL TERMINATION . . . . . . . . . . . . . . 52
12.03 LIQUIDATION OF THE PLAN . . . . . . . . . . . . 52
12.04 MANNER OF DISTRIBUTION. . . . . . . . . . . . . 53
ARTICLE XIII DISCHARGE OF DUTIES BY FIDUCIARIES . . . . . . . 54
ARTICLE XIV DIRECT ROLLOVERS. . . . . . . . . . . . . . . . . 55
14.01 APPLICATION OF THIS ARTICLE . . . . . . . . . . 55
14.02 DEFINITIONS . . . . . . . . . . . . . . . . . . 55
SCHEDULE A . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SCHEDULE B . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SCHEDULE C . . . . . . . . . . . . . . . . . . . . . . . . . . 59
(iv)
<PAGE>
FORWARD
-------
The Grinnell Corporation Retirement Savings and Investment Plan for Hourly
Employees Covered by a Collective Bargaining Agreement (the "Plan") was
established as of September 1, 1992 by Grinnell Corporation (the "Employer"),
for the benefit of certain eligible employees who are covered by collective
bargaining agreements. Effective as of July 1, 1993, the Plan is amended and
restated to permit plan loans, and to make other administrative changes to the
Plan. Effective January 1, 1994, the Plan shall be known as the Tyco
International Ltd. Retirement Savings and Investment Plan for Hourly Employees
Covered by a Collective Bargaining Agreement.
<PAGE>
ARTICLE I
DEFINITIONS
-----------
1.01 "AFFILIATED COMPANY" means (a) a corporation which, together
with the Plan Sponsor, is a member of a controlled group of corporations (as
defined in Section 414(b) of the Code), (b) a trade or business (whether or not
incorporated) which is under common control (as defined in Section 414(c) of the
Code) with the Plan Sponsor (c) a corporation, partnership or other entity
which, together with the Plan Sponsor, is a member of an affiliated service
group (as defined in Section 414(m) of the Code), or (d) an organization which
is required to be aggregated with the Plan Sponsor pursuant to regulations
promulgated under Section 414(o) of the Code. For purposes of determining an
Employee's Hours of Service, Years of Eligibility Service, Years of Vesting
Service and the occurrence of a Break in Service under the Plan, any period of
employment with the Plan Sponsor or with an Affiliated Company shall be
recognized.
1.02 "BASIC TAX-DEFERRED CONTRIBUTIONS" shall mean the contributions
made by the Employer for each Participant pursuant to Section 3.01 of the Plan
which are made on account of a salary reduction agreement with such Participant.
1.03 "BENEFICIARY" shall mean the person(s) or other recipient(s)
entitled in accordance with the provisions of Article VII hereof to receive any
distribution which may become payable under this Plan after the death of a
Participant, and include the surviving spouse of a Participant who is deemed to
be a designated Beneficiary pursuant to Section 7.03(b).
1.04 "BREAK IN SERVICE" shall mean a Computation Period during which
the Employee has not been credited with more than 500 Hours of Service for the
Employer or
2
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any Affiliated Company. Solely for purposes of determining whether a
Break in Service has occurred in a Computation Period, an Employee who is absent
from work by reason of pregnancy, birth or adoption of a child, or for purposes
of caring for such child for a period beginning immediately following such birth
or adoption, shall receive credit for the Hours of Service which would otherwise
have been credited to such Employee but for such absence, or in any case in
which such hours cannot be determined, eight (8) Hours of Service per day of
such absence, provided that the total number of Hours of Service credited under
this paragraph shall not exceed the difference between 501 and the number of
Hours of Service with which such Employee would otherwise have been credited
during the Computation Period for which this paragraph applies. The Hours of
Service credited under this paragraph shall be credited in the first Computation
Period in which such credit is necessary to avoid a Break in Service for such
Computation Period.
1.05 "CODE" shall mean the Internal Revenue Code of 1986, and any
amendments thereto, and any rulings and regulations thereunder.
1.06 "COMMITTEE" shall mean the Retirement Committee appointed
pursuant to Article VIII hereof.
1.07 "COMPENSATION" shall mean direct cash compensation for the
current calendar year paid to a Participant by the Employer for services
rendered and reported on Box 10 of IRS Form W-2, including any amounts which
would have been paid to the Participant as cash compensation but for an election
by such Participant under Section 125 or 401(k) of the Code, but excluding any
other form of direct and indirect remuneration, and other forms of contributions
or benefits under this Plan.
3
<PAGE>
A Participant's Compensation for any Plan Year shall not be taken into
account, to the extent that such Compensation exceeds $200,000, subject to
cost-of-living adjustments made by the Secretary of Treasury or his delegate.
For Plan Years beginning on or after January 1, 1994, the limitation shall be
reduced to $150,000.
In determining the Compensation of a Participant for purposes of this
Compensation limitation, the rules of Section 414(q)(6) of the Code shall apply,
except that in applying such rules, the term "family" shall include only the
spouse of the Participant and any lineal descendants of the Participant who have
not attained age 19 before the close of the Plan Year. If, as a result of the
application of such rules, the adjusted Compensation limitation is exceeded,
then the limitation shall be prorated among the affected individuals in
proportion to each such individual's Compensation as determined under this
section prior to application of the limitation.
1.08 "COMPUTATION PERIOD" shall mean the twelve (12) consecutive
month period commencing on the Employee's Employment Commencement Date (or date
of reemployment in the case of an Employee who is reemployed after incurring one
or more Breaks in Service) and each anniversary thereof.
1.09 "DISABILITY" shall mean a Participant's permanent and total
incapacity of engaging in any employment for the Employer for physical or mental
reasons. Disability shall be deemed to exist only when such Participant meets
either the requirements for disability benefits under the Social Security law
then in effect, or the requirements for disability benefits under the Employer's
long term disability plan.
4
<PAGE>
1.10 "EFFECTIVE DATE" of this restated Plan shall mean July 1, 1993.
The original effective dates of the Plan for each group of Eligible Employees
are set forth in the applicable schedule attached to the Plan.
1.11 "ELIGIBLE EMPLOYEE" shall mean any hourly Employee of an
Employer or an Affiliated Company whose compensation or conditions of employment
are determined by or subject to collective bargaining with a union, and who is
identified on a schedule attached to the Plan.
1.12 "EMPLOYEE" shall mean any individual who is receiving
remuneration for services rendered to Tyco International Ltd., Grinnell
Corporation or any Affiliated Company as a common law employee.
1.13 "EMPLOYER" shall mean Tyco International Ltd., Grinnell
Corporation or any Affiliated Company which adopts this Plan.
1.14 "EMPLOYER ACCOUNT" shall mean that portion of a Participant's
interest in the Plan which is attributable to the Employer Matching
Contributions made on his behalf hereunder.
1.15 "EMPLOYER MATCHING CONTRIBUTIONS" shall mean the contributions
required to be made by the Employer pursuant to Section 3.02. Such contributions
are in addition to the Basic Tax-Deferred Contributions, Supplemental
Tax-Deferred Contributions and Voluntary Tax-Deferred Contributions required to
be made by the Employer pursuant to salary reduction agreements.
1.16 "EMPLOYMENT COMMENCEMENT DATE" shall mean the date the Employee
first performs an Hour of Service for the Employer or an Affiliated Company.
1.17 "ENTRY DATE" shall mean January 1, April 1, July 1 and
October 1.
5
<PAGE>
1.18 "ERISA" shall mean Public Law No. 93-406, the Employee
Retirement Income Security Act of 1974, and any amendments thereto and any
rulings and regulations thereunder.
1.19 "FAMILY MEMBER" shall mean the spouse or lineal ascendants
or descendants (and their spouses) of an Employee who owns (or is considered to
own within the meaning of Section 318 of the Code) more than 5% of the
outstanding stock of the Employer or an Affiliated Company or who is a member of
a group consisting of the ten (10) Highly Compensated Employees paid the
greatest Compensation during the Plan Year.
1.20 "FORFEITURE DATE" shall mean the date the Participant ceases to
be an Employee. A Participant who has no vested interest in his Employer Account
shall be deemed to be cashed-out of his Employer Account on his Forfeiture Date.
1.21 "HIGHLY COMPENSATED EMPLOYEE" shall mean any person who is a
"highly compensated employee" within the meaning of Section 414(q) of the Code
and the regulations promulgated thereunder.
1.22 "HOUR OF SERVICE" shall mean:
(a) Each hour for which an Employee is paid, or entitled to
payment, for the performance of duties for the Employer. These hours shall be
credited to the Employee for the Computation Period in which the duties are
performed;
(b) Each hour for which an Employee is paid, or entitled to
payment, by the 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. No more than
501 Hours of Service shall be credited under this paragraph for any
6
<PAGE>
single continuous period of absence for which no duties are performed (whether
or not such period occurs in a single Computation Period). Hours under this
paragraph shall be calculated and credited pursuant to Section 2530.200b-2(b)
and (c) of the Department of Labor Regulations which are incorporated herein by
this reference;
(c) Each hour for which back pay, irrespective of mitigation
of damages, is either awarded or agreed to by the Employer. The same Hours of
Service shall not be credited both under paragraphs (a) or (b), as the case may
be, and under this paragraph (c). These hours shall be credited to the Employee
for the Computation Period for which the award, agreement or payment is made.
1.23 "INVESTMENT FUND" or "INVESTMENT FUNDS" shall mean such one or
more investment vehicles, including but not limited to mutual funds and
insurance contracts, which the Plan Administrator may from time to time, in its
sole discretion, specify as being available for the investment of Trust assets.
1.24 "NORMAL RETIREMENT DATE" shall mean a Participant's 65th
birthday.
1.25 "PARTICIPANT" shall mean any Eligible Employee who elects
to participate in the Plan in accordance with the provisions of Article II
hereof.
1.26 "PLAN" shall mean the Tyco International Ltd. Retirement
Savings and Investment Plan for Hourly Employees Covered by a Collective
Bargaining Agreement as set forth herein and as amended from time to time
hereafter. The Plan was formally known as the Grinnell Corporation Retirement
Savings and Investment Plan for Hourly Employees Covered by a Collective
Bargaining Agreement.
7
<PAGE>
1.27 "PLAN ADMINISTRATOR" shall mean the Committee, or its
successor(s), who shall have those responsibilities of administering the Plan as
set forth in Article VIII hereof.
1.28 "PLAN SPONSOR" shall mean Grinnell Corporation prior to January
1, 1994 and shall mean Tyco International Ltd. after December 31, 1993.
1.29 "PLAN YEAR" shall mean the twelve (12) month period commencing
on any January 1 and ending on the succeeding December 31.
1.30 "ROLLOVER ACCOUNT" shall mean that portion of a Participant's
interest in the Plan which is attributable to his Rollover Contributions.
1.31 "ROLLOVER CONTRIBUTIONS" shall mean contributions to the Plan
made by a Participant pursuant to Section 3.03 consisting of all or any portion
of (a) any amount received by such Participant from another plan and trust
qualified as an exempt employee benefit plan and trust under Sections 401(a) and
501(a) of the Code, or (b) any amount received by such Participant from an
individual retirement account or individual retirement annuity which consists of
a prior lump sum distribution from a qualified employee benefit plan which but
for such contribution to the Plan, would have been taxable income to such
Employee.
1.32 "SUPPLEMENTAL TAX-DEFERRED CONTRIBUTIONS" shall mean the
contributions made by the Employer for each Participant pursuant to Section 3.02
hereunder which are made on account of a salary reduction agreement with such
Participant.
1.33 "TAX-DEFERRED ACCOUNT" shall mean that portion of a
Participant's interest in the Plan which is attributable to his Basic
Tax-Deferred Contributions and his Supplemental Tax-Deferred Contributions, if
any.
8
<PAGE>
1.34 "TAX-DEFERRED CONTRIBUTIONS" shall mean and include a
Participant's Basic Tax-Deferred Contributions, Supplemental Tax-Deferred
Contributions and Voluntary Tax-Deferred Contributions, collectively.
1.35 "TRUST" means the trust created by an agreement between the
Plan Sponsor and the Trustee for purposes of holding Plan assets.
1.36 "TRUSTEE" means the trustee duly designated under the trust
agreement and any duly appointed successor trustee or trustees.
1.37 "VALUATION DATE" shall mean the last business day of each month
through September 30, 1993 and from October 1, 1993 onwards, shall mean each
business day of the Plan Year on which the New York Stock Exchange is open or
any other date the Committee shall designate.
1.38 "VOLUNTARY ACCOUNT" shall mean that portion of a Participant's
interest in the Plan which is attributable to his Voluntary Tax-Deferred
Contributions.
1.39 "VOLUNTARY TAX-DEFERRED CONTRIBUTIONS" shall mean the
contributions made by the Employer for each Participant pursuant to Section 3.04
of the Plan which are made on account by a salary reduction agreement with such
Participant.
1.40 "YEAR OF ELIGIBILITY SERVICE" shall mean each Computation
Period, including Computation Periods occurring prior to the Effective Date,
during which an Employee is credited with at least 1,000 Hours of Service with
the Employer.
1.41 "YEAR OF VESTING SERVICE" shall mean each Computation Period,
including Computation Periods occurring prior to the Effective Date, during
which an Employee is credited with at least 1,000 Hours of Service with the
Employer.
9
<PAGE>
Wherever used herein, a pronoun in the masculine gender shall be considered
as including the feminine gender unless the context clearly indicates otherwise.
10
<PAGE>
ARTICLE II
PLAN PARTICIPATION
------------------
2.01 PARTICIPATION. Unless otherwise provided in a schedule attached
to this Plan, each Eligible Employee, including each future Eligible Employee,
shall be eligible to become a Participant in this Plan as of any Entry Date
which coincides with or immediately follows the latest of
(a) the effective date of the adoption of this Plan by the
Employer with respect to the Eligible Employee;
(b) the date the Eligible Employee completes one (1) Year
of Eligibility Service;
(c) the Eligible Employee's 21st birthday; and
(d) the date the Employee becomes an Eligible Employee.
The Plan Administrator shall notify each Eligible Employee on or before the
date he is first eligible to participate, and shall supply each such Eligible
Employee with an application form on which to apply for inclusion in the Plan
and to authorize the Employer to reduce his salary in consideration of the Basic
Tax-Deferred Contributions to be made to the Plan by the Employer on his behalf.
Upon notification of eligibility and receipt of an application, an Eligible
Employee shall have 30 days (or such shorter period as the Plan Administrator
may specify) in which to return the completed application to the Plan
Administrator who shall, in turn, notify the Employer to begin making the
necessary salary adjustments and Basic Tax-Deferred Contributions in accordance
with Article III hereof. If an Eligible Employee should elect not to be included
in the Plan during such period, he may
11
<PAGE>
elect to become a Participant on the Entry Date coincident with or next
following the date he has completed and returned said application to the Plan
Administrator.
Notwithstanding the foregoing, if an Eligible Employee is hired on or after
his 55th birthday or an Employee becomes an Eligible Employee on or after his
55th birthday, he shall be eligible to commence participation in this Plan on
the first Entry Date following his date of hire or the date he becomes an
Eligible Employee.
2.02 CESSATIONS OF PARTICIPATION AND ACTIVE PARTICIPATION. A
Participant shall become an inactive Participant as of his termination of
employment. He shall remain an inactive Participant until the date on which the
balance of his accounts is distributed to him, at which time he shall cease to
be a Participant.
2.03 REINSTATEMENT OF ACTIVE PARTICIPATION. If a Participant becomes
an inactive Participant or ceases to be such altogether and he is subsequently
reemployed by the Employer as an Eligible Employee prior to the date he has
incurred a Break in Service, he shall recommence active participation in this
Plan on his date of reemployment or, if he so elects, on a subsequent Entry Date
provided he agrees to reduce his salary in return for the Employer making
equivalent Basic Tax-Deferred Contributions to the Plan on his behalf.
2.04 BREAK IN SERVICE. The following shall apply to all
Employees or Participants who are reemployed after incurring a Break in Service:
(a) Employees or Participants Who Were Vested In Their
Employer Accounts. With respect to an Employee or Participant who was vested in
his Employer Account prior to his termination of employment, his prior Years of
Vesting Service and Years of Eligibility Service shall be fully restored upon
reemployment.
12
<PAGE>
(b) Employees or Participants Who Were Not Vested In Their
------------------------------------------------------
Employer Accounts. With respect to an Employee or Participant who incurs a Break
- -----------------
in Service and who was not vested in his Employer Account prior to his
termination of employment, his prior Years of Vesting Service and Years of
Eligibility Service shall be fully restored upon reemployment only if the number
of his consecutive Breaks in Service is less than the greater of five (5) or the
aggregate number of Years of Vesting Service before such break. If such
Employee's or Participant's number of consecutive Breaks in Service equals or
exceeds the greater of five (5) or the aggregate number of Years of Vesting
Service before such break, his prior Years of Vesting Service and Years of
Eligibility Service shall be forfeited and he shall be treated as a new Employee
for all purposes of the Plan.
If the prior Years of Vesting Service and Years of Eligibility Service of a
former Employee or Participant are restored pursuant to this Section 2.04, and
such former Employee or Participant otherwise meets the eligibility requirements
set forth in Section 2.01, he shall be eligible to become an active Participant
on his date of reemployment, or if he so elects, on a subsequent Entry Date,
provided he agrees to reduce his salary in return for the Employer making
equivalent Basic Tax-Deferred Contributions to the Plan on his behalf.
2.05 CHANGES IN EMPLOYMENT STATUS. If an Eligible Employee should
transfer his employment from the Employer to a non-participating Affiliated
Company or if an Eligible Employee should change the status of his employment
with the Employer and, in either case, he thereby ceases to be an Eligible
Employee, he shall cease to be an active Participant as of the day on which such
transfer or change in status occurs, but he shall not
13
<PAGE>
be deemed to have terminated his employment and he shall not be entitled to
receive a distribution from the Plan until his actual termination of employment.
14
<PAGE>
ARTICLE III
CONTRIBUTIONS
-------------
3.01 BASIC TAX-DEFERRED CONTRIBUTIONS. Each Participant may make
Basic Tax-Deferred Contributions to the Plan which shall entitle him to be
credited with Employer Matching Contributions. Subject to the limitations set
forth in Article IV, for each Plan Year, the total amount of Basic Tax-Deferred
Contributions which shall be made by or on behalf of each Participant shall be
the amount set forth in the applicable schedule attached to this Plan. A
Participant's Basic Tax-Deferred Contributions shall be credited to his
Tax-Deferred Account.
A Participant may elect to suspend salary reduction pursuant to this
Section 3.01 and the Basic Tax-Deferred Contributions made on his behalf as of
the first day of any month. A Participant's election to suspend such
contributions must be made in writing to the Plan Administrator at least 30 days
prior to the first day of any month in which the suspension is to be made
effective. A Participant who suspends Basic Tax-Deferred Contributions on his
behalf pursuant to the foregoing proviso may elect to resume such contributions
as of any Entry Date which succeeds the date of suspension by at least three (3)
months, by means of written notice to the Plan Administrator given in the manner
required by the Plan Administrator, which may include completion of a new
application and salary reduction agreement as described in Section 2.01, at
least 30 days prior to the date on which the resumption is to be effective.
3.02 SUPPLEMENTAL TAX-DEFERRED CONTRIBUTIONS. Subject to the
limitations set forth in Article IV, a Participant may elect to make
Supplemental Tax-Deferred Contributions to the Plan, which shall entitle him to
be credited with additional
15
<PAGE>
Employer Matching Contributions, to the extent provided in the applicable
schedule attached to this Plan. To make Supplemental Tax-Deferred Contributions
to the Plan, a Participant shall agree to a further reduction in his
Compensation equal to the amount of his Supplemental Tax-Deferred Contributions.
A Participant's Supplemental Tax-Deferred Contributions shall be credited to the
Participant's Tax-Deferred Account.
A Participant may elect to change the percentage rate or amount of his
salary reduction and the corresponding rate of his Supplemental Tax-Dferred
Contributions on his behalf as of any Entry Date. Such election must be made in
writing to the Plan Administrator at least 30 days prior to the date on which
the change is to be made effective. A Participant may elect to suspend salary
reduction and the corresponding rate of his Supplemental Tax-Deferred
Contributions pursuant to the same rules set forth in the second paragraph of
Section 3.01.
3.03 EMPLOYER MATCHING CONTRIBUTIONS. For each Plan Year, Employer
Matching Contributions shall be made on behalf of each Participant who makes a
Basic and/or Supplemental Tax-Deferred Contribution to the Plan during the Plan
Year based on the amount set forth in the applicable schedule attached to this
Plan. Employer Matching Contributions made on behalf of Participant shall be
credited to his Employer Account.
3.04 ROLLOVER CONTRIBUTIONS. With the approval of the Plan
Administrator, each Participant may roll over any Eligible Rollover Distribution
(as defined in Section 14.02(a)) he may have received from another retirement
plan and trust qualified as an exempt employee benefit plan and trust under
Sections 401(a) and 501(a) of the Code. Such Participant may also roll over
distributions from an individual retirement account or individual retirement
annuity which consists of prior lump sum distributions or Eligible
16
<PAGE>
Rollover Distributions from a qualified employee benefit plan and trust,
provided that such funds are transferred to the Plan within 60 days after the
Participant receives them. Notwithstanding the foregoing, no rollover amounts
may be accepted to the extent prohibited by Section 402 or 408 of the Code.
Contributions under this Section 3.03 shall be in cash only, and shall be fully
vested and nonforfeitable at all times. Rollover Contributions shall be credited
to a separate Rollover Account for such Participant. Rollover Contributions
shall not be deemed to be Participant contributions for purpose of the
limitations set forth in Section 4.02.
3.05 VOLUNTARY TAX-DEFERRED CONTRIBUTIONS. If a Participant is
making Basic Tax-Deferred Contributions pursuant to Section 3.01, he may elect
to have the Employer make Voluntary Tax-Deferred Contributions to the Plan on
his behalf each year, but only if such Participant has agreed to a further
reduction in his Compensation equal to the amount of such Voluntary Tax-Deferred
Contributions.
Subject to the limitations set forth in Article IV and except as otherwise
set forth in the applicable schedule attached to this Plan, for each Plan Year,
the amount of Voluntary Tax-Deferred Contributions shall not exceed the amount
set forth in the applicable schedule attached to the Plan. Voluntary
Tax-Deferred Contributions shall be credited to the Participant's Voluntary
Account.
A Participant may elect to change the rate of Voluntary Tax-Deferred
Contributions on his behalf as of any Entry Date; provided, however, that a
Participant may elect to suspend salary reduction pursuant to this Section 3.04
and the Voluntary Tax-Deferred Contributions on his behalf as of the first day
of any month. A Participant's election to change the rate of Voluntary
Tax-Deferred Contributions or to suspend such contributions
17
<PAGE>
must be made in writing to the Plan Administrator at least 30 days prior to the
first day of any month in which the change or suspension is to be made
effective. A Participant who suspends Voluntary Tax-Deferred Contributions on
his behalf pursuant to the foregoing provision may elect to resume such
contributions as of any Entry Date which succeeds the date of suspension by at
least three (3) months, by means of written notice to the Plan Administrator
given in the manner required by the Plan Administrator, which may include
completion of a new application and salary reduction agreement as described in
Section 2.01, at least 30 days prior to the date on which the resumption is to
be effective.
3.06 FORFEITURES. Amounts forfeited under Section 6.03 by
Participants upon termination of their employment with the Employer shall be
reapplied in such a way as to reduce future Employer Matching Contributions
under the Plan.
3.07 DETERMINATION OF CONTRIBUTIONS. The amount of Basic
Tax-Deferred Contributions, Supplemental Tax-Deferred Contributions, Voluntary
Tax-Deferred Contributions, and Employer Matching Contributions shall be subject
to final determination by the Plan Administrator. The amount of such
contributions, as determined by the Plan Administrator, shall be conclusive and
binding on all persons.
3.08 PAYMENT OF CONTRIBUTIONS. The Employer Matching Contributions
for each Plan Year shall be made at such time or times as the Employer
determines but not later than the time required by law in order for the Employer
to obtain a deduction of the amount of such payment for Federal income tax
purposes as determined under the applicable provisions of the Code. All Basic,
Supplemental and Voluntary Tax-Deferred Contributions made with respect to a pay
period shall be paid into the Plan by the Employer no later than 30 days after
the last day of such pay period.
18
<PAGE>
3.08 FUNDING. Grinnell Corporation or an Affiliated Company has
entered into a trust agreement with a Trustee, creating a Trust for the purpose
of holding Plan assets and providing benefits under the Plan. All contributions
under the Plan shall be invested in the Investment Funds and such other
investment vehicles as specifically provided in the trust agreement and shall be
held, managed and disposed of by the Trustee in accordance with the provisions
of the trust agreement for purposes contemplated by the Plan.
3.08 PROFITS NOT REQUIRED. The Employer shall, notwithstanding any
other provision of the Plan, make all contributions to the Plan without regard
to current or accumulated earnings and profits. Notwithstanding the foregoing,
the Plan shall be designated to qualify as a profit-sharing plan for purposes of
Sections 401(a), 402, 412 and 417 of the Code.
3.09 ELECTION OF INVESTMENTS.
(a) Each Participant, including a former Participant whose
account balances are still maintained in the Trust, shall elect the manner of
investment of all amounts standing to the credit of his accounts in the Trust
among the Investment Funds established under the Trust. By such election, the
Participant shall direct the portion of the aggregate amount then credited,
and/or thereafter to be credited, to his accounts which is to be invested by the
Trustee in each of the Investment Funds. The Plan Administrator shall maintain
records of account at all times adequately reflecting each Participant's
interest in each of the Investment Funds.
(b) A Participant may revoke his election as to any amounts
then standing in, and/or thereafter to be credited to, his accounts at such time
or times and in such manner as the Plan Administrator determines on a uniform
basis for all Participants, and may make a
19
<PAGE>
new investment election in accordance with this Section 3.10. Effective October
1, 1993, such investment election charges may be made on a daily basis. In the
event that such a new election causes a transfer of assets from one Investment
Fund to another, the transfer shall be made by the Trustee as soon as reasonably
possible.
(c) To make an investment election, each Participant shall
give notice to the Plan Administrator in such form and at such time as the Plan
Administrator may reasonably require. To be effective, such an investment
election must be in accordance with any and all rules and regulations
established by the Plan Administrator for this purpose.
(d) Any investment election made hereunder shall continue to
be effective until properly revoked by the Participant.
(e) The Employer, the Plan Administrator and the Trustee
shall have no responsibility for the investment elections of the Participants
and shall incur no liability on account of investing the assets of the Trust in
accordance with such directions.
20
<PAGE>
ARTICLE IV
LIMITATIONS ON CONTRIBUTIONS AND ALLOCATIONS
--------------------------------------------
4.01 LIMITATION ON TAX-DEFERRED CONTRIBUTIONS.
(a) The Tax-Deferred Contributions made by the Employer for
each fiscal year shall not exceed that amount which, when added to the Employer
Matching Contributions made by the Employer for that fiscal year, equals the
maximum amount allowable as a deduction by the Employer under Section 404 of the
Code for such fiscal year.
(b) The Tax-Deferred Contributions made by the Employer for
any Participant under this Plan and all other plans maintained by the Employer
or an Affiliated Company for any calendar year shall not exceed $8,994, subject
to cost-of-living adjustments made by the Secretary of Treasury or his delegate
pursuant to Section 402(g)(5) of the Code.
(c) At any time during the Plan Year, the Employer may
suspend or reduce the amount of Tax-Deferred Contributions on a prospective
basis with respect to any Highly Compensated Employee if the Plan Administrator
determines that such suspension or reduction is necessary to cause the test in
either (i) or, to the extent not prohibited by regulations promulgated by the
Secretary of Treasury, (ii) below to be met with respect to Tax-Deferred
Contributions for such Plan Year:
(i) the Actual Deferral Percentage for the Highly
Compensated Employees eligible for Tax-Deferred Contributions is not more
than the Actual Deferral Percentage for all other Employees eligible for
Tax-Deferred Contributions multiplied by 1.25; or
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(ii) the excess of the Actual Deferral Percentage for the
Highly Compensated Employees eligible for Tax-Deferred Contributions over
the Actual Deferral Percentage for all other Employees eligible for
Tax-Deferred Contributions is not more than two (2) percentage points, and
the Actual Deferral Percentage for the Highly Compensated Employees
eligible for Tax-Deferred Contributions is not more than the Actual
Deferral Percentage for all other Employees eligible for Tax-Deferred
Contributions multiplied by two (2).
All determinations required under this subsection (c) shall be made by
the Plan Administrator and its determinations shall be final and binding on
all persons.
(d) For the purposes of subsection (c) above, the "Actual
Deferral Percentage" for a specified group of Employees for a Plan Year shall be
the average of the ratios (calculated separately for each Employee in such group
and expressed as a percentage) of (i) the amount of the Tax-Deferred
Contributions actually paid over to the Plan on behalf of the Employee for such
Plan Year to (ii) the Employee's "total compensation" for such Plan Year. For
purposes of this subsection (d), "total compensation" means the amount of
compensation paid by the Employer to the Participant during the Plan Year (or
portion thereof in which the Participant is eligible to participate in the Plan)
which is subject to withholding and required to be reported on the Participant's
Form W-2 plus the amount which would have been paid to the Participant as cash
compensation but for an election by such Participant under Section 125 or 401(k)
of the Code. The "total compensation" taken into account with respect to a
Participant for any Plan Year shall not exceed $200,000 ($150,000 beginning
January 1, 1994), subject to cost-of-living adjustments made by the Secretary of
Treasury or his delegate.
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(e) In determining the deferral percentage of a Highly
Compensated Employee who has a Family Member who is an Employee, the
Tax-Deferred Contributions made on behalf of such Highly Compensated Employee
and the "total compensation" of such Highly Compensated Employee shall include
the Tax-Deferred Contributions and "total compensation" of the Family Member,
and the Family Member shall not be considered a separate Employee for purposes
of determining the Actual Deferral Percentage for any group under the Plan to
the extent required by Section 414(q) of the Code and the regulations
promulgated thereunder;
(f) In the event Tax-Deferred Contributions actually made on
behalf of Highly Compensated Employees exceed the limitations set forth in
subsection (c) above, the Plan Administrator shall direct the Trustee to reduce
such contributions of such Highly Compensated Employees in order of their
deferral percentages, beginning with the highest of such percentages, to the
extent necessary to cause the Plan to meet such limitations. Such reduction
shall be made first with respect to Voluntary Tax-Deferred Contributions, then
with respect to Supplemental Tax-Deferred Contributions, and then finally with
respect to Basic Tax-Deferred Contributions. Any reduction in Basic or
Supplemental Tax-Deferred Contributions shall also be accompanied by a reduction
of the associated Employer Matching Contributions, if vested. If the Participant
is not vested in the associated Employer Matching Contributions, such
contributions shall be forfeited and shall be applied to reduce future Employer
Matching Contributions. Any Tax-Deferred Contributions so reduced, as adjusted
for income or loss allocable thereto in accordance with Section 4.01(g) below,
shall be distributed to the Highly Compensated Employees on whose behalf such
contributions were made as soon as practicable, but no later than December 31 of
the following Plan Year.
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(g) The income or loss allocable to a Participant's
Tax-Deferred Contributions which exceed the limitation of subsection (c) above
shall be determined by multiplying the investment gain or loss of such
Participant's Tax-Deferred Account or Voluntary Account, whichever is
applicable, for such Plan Year from which such excess Tax-Deferred Contributions
are withdrawn by a fraction. The numerator of this fraction is the amount of the
Participant's excess Tax-Deferred Contributions to be distributed and the
denominator is the amount credited to the Participant's Tax-Deferred Account or
Voluntary Account, whichever is applicable, as of the beginning of the Plan
Year, increased by the Tax-Deferred Contributions allocable to such account for
such Plan Year.
(h) If, during any Plan Year, more than the maximum
permissible amount under Section 402(g) of the Code is allocated pursuant to one
or more cash or deferred arrangements to a Participant's accounts under this
Plan and any other plan described in Sections 401(k), 408(k), or 403(b) of the
Code, the following provisions shall apply:
(i) No later than March 1 of the next succeeding Plan Year,
the Participant may, but is not required to, allocate all or part of such
contributions in excess of the maximum permissible amount ("excess
deferrals") to this Plan. To be effective, such allocation must be in
writing, state that excess deferrals have been made on behalf of such
Participant for the preceding Plan Year, and be submitted to the Plan
Administrator.
(ii) To the extent a Participant timely allocates excess
deferrals to this Plan pursuant to (i) above, the Plan Administrator shall
direct the Trustee to distribute such excess deferrals, adjusted for income
or losses as
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determined in accordance with subsection (h) above, to the
Participant no later than the April 15 following such allocation.
4.02 LIMITATIONS ON ANNUAL ADDITIONS.
(a) All annual additions made under the provisions of
Article III or this Article IV with respect to any Participant in any Limitation
Year shall be limited to the lesser of:
(i) $30,000 (or, if greater, one-fourth of the defined
benefit dollar limitation as set forth in Section 415(b)(1) of the Code,
as adjusted beginning in 1988 pursuant to Section 415(d) of the Code), or
(ii) 25% of the Participant's compensation (determined in
accordance with Treasury Regulations Section 1.415-2(d)(11)(ii)) for such
Limitation Year. For purposes of this Section 4.02, the term "annual
addition" shall mean the sum of:
(A) Tax-Deferred Contributions, excluding amounts
returned to the Participant pursuant to Section 4.01(i), plus
(B) Employer Matching Contributions plus forfeitures.
In any case where a Participant is, or has been, included in a
tax-qualified defined benefit plan of the Employer or any Affiliated Company,
the sum of such Participant's defined benefit plan fraction and defined
contribution plan fraction shall not exceed one (1) for any Limitation Year, and
the annual additions to such Participant's accounts under this Plan shall be
further limited to the extent necessary to comply with such combined plan limit.
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The defined benefit plan fraction of a Participant for any Limitation Year
is a fraction, the numerator of which is the projected annual normal retirement
benefit of such Participant under such defined benefit plan determined as of the
close of such Limitation Year and the denominator of which is the lesser of:
(i) the product of 1.25 multiplied by the dollar limitation in
effect for such Limitation Year under Section 415(b)(1)(A) of the Code; or
(ii) the product of 1.4 multiplied by such Participant's
highest three (3) years' average compensation (as defined by Section 415
of the Code).
The defined contribution plan fraction of a Participant for any Limitation
Year is a fraction, the numerator of which is the aggregate amount as of the
close of such Limitation Year of the annual additions credited to such
Participant's accounts under the Plan and the denominator of which is the sum of
the lesser of the following amounts determined for such Limitation Year and each
prior Limitation Year of Service with the Employer or any Affiliated Company:
(i) the product of 1.25 multiplied by the dollar limitation in
effect for the Limitation Year under Section 415(c)(1)(A) of the Code; or
(ii) the product of 1.4 multiplied by 25% of such Participant's
total compensation (determined in accordance with Treasury Regulations
Section 1.415-2(d)(11)(ii)) for the Limitation Year.
If the foregoing limit is applicable to a Participant for a Limitation Year, the
Plan Administrator shall reduce the annual additions to his accounts in the
following order of priority:
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(1) against the Tax-Deferred Contributions made on
behalf of such Participant, the amount of such reduction to be held
unallocated and applied to reduce future Tax-Deferred Contributions under
the Plan in the succeeding Limitation Year;
(2) against the Employer Matching Contributions
(including forfeitures) made on behalf of the Participant, the amount of
such reduction to be held unallocated and applied to reduce Employer
Matching Contributions to the Plan in the succeeding Limitation Year; and
(3) the Plan Administrator may elect from time to time
to return the Tax-Deferred Contributions to the Participant.
For purposes of this Section 4.02, the Limitation Year shall be the Plan
Year.
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ARTICLE V
WITHDRAWALS PRIOR TO TERMINATION OF EMPLOYMENT
----------------------------------------------
5.01 WITHDRAWALS FROM VOLUNTARY ACCOUNTS. To the extent
permitted in the applicable schedule attached to the Plan, a Participant may, at
any time prior to the distribution of his Voluntary Account, request to withdraw
a cash amount from such accounts. The maximum amount which a Participant may
withdraw from his Voluntary Account pursuant to the rules of this Section 5.01
shall not exceed the amount of his Voluntary Tax-Deferred Contributions plus,
after the Participant has attained age 59-1/2, the earnings attributable to such
amounts. The Participant's request to withdraw must be made in writing to the
Plan Administrator and such request shall specify the amount requested, the
reason for the withdrawal and such additional information as the Plan
Administrator shall require.
The withdrawal of any amount from a Participant's Voluntary Account shall
be subject to the consent of the Plan Administrator. The basis for the Plan
Administrator consenting or refusing to consent to the Participant's request
shall be its determination that the requested withdrawal is necessary to allow
such Participant to meet an immediate and heavy financial need which such
Participant is not able to meet from any other reasonably available resources.
The foregoing standard shall be applied by the Plan Administrator so as to
conform to the requirements of Section 401(k) of the Code. Notwithstanding the
foregoing, a Participant who has attained age 59-1/2 may withdraw a cash amount
equal to all or a specified portion of his Voluntary Tax-Deferred Contributions,
including earnings, without the need to seek the consent of the Plan
Administrator. A distribution shall be
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deemed to be made on account of an immediate and heavy financial need of the
Participant if the distribution is on account of:
(a) Medical expenses described in Section 213(d) of the Code
incurred by the Participant, his spouse or his dependents, or expenses necessary
for these persons to obtain medical care;
(b) Purchase (excluding mortgage payments) of a principal
residence of the Participant;
(c) Payment of tuition and related educational fees for the
next twelve (12) months of post-secondary education for the Participant, his
spouse or his dependents;
(d) The need to prevent eviction of the Participant from
his principal residence or foreclosure on the mortgage of the Participant's
principal residence; or
(e) Any other circumstance deemed by the Internal Revenue
Service to be an immediate and heavy financial need for purposes of Section
401(k) of the Code.
If a Participant has an immediate and heavy financial need as described
above, he may receive a hardship withdrawal not in excess of the amount of the
immediate and heavy financial need (including amounts necessary to pay any
federal, state or local income taxes or penalties reasonably anticipated to
result from the distribution) provided the Plan Administrator determines that
such Participant is not able to meet such need from any other reasonably
available resources. In determining that such Participant is not able to meet
such financial hardship from any other sources, the Plan Administrator may
reasonably rely upon the written certification of the Participant given in
accordance with the regulations promulgated under Section 401(k) of the Code. A
Participant is deemed not able to meet such financial hardship from any other
sources only if:
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(a) The Participant has obtained all distributions, other
than hardship distributions, and all nontaxable loans under all plans maintained
by the Employer;
(b) The distribution is not in excess of the amount of an
immediate and heavy financial need.
5.02 RESUMPTION OF VOLUNTARY TAX-DEFERRED CONTRIBUTIONS.
Any Participant who makes a withdrawal in accordance with this Article V shall
be prohibited from making Voluntary Tax-Deferred Contributions for a period of
twelve (12) months. After the expiration of such period, the Participant may
elect to resume Voluntary Tax-Deferred Contributions in accordance with the
rules set forth in Section 3.04. Amounts withdrawn by a Participant may not be
returned to this Plan.
5.03 PROCEDURE FOR WITHDRAWAL. Each withdrawal pursuant to Section
5.01 shall be made as soon as practicable following the date the Trustee
receives from the Plan Administrator such written notice of withdrawal as shall
be required by the Trustee. The amount to be so withdrawn shall be that
specified in such written notice and shall be limited by the provisions of
Section 5.01. In no event will a Participant be allowed to withdraw any portion
of his Tax-Deferred Account, Rollover Account or Employer Account prior to the
date of the termination of his employment.
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ARTICLE VI
VESTING, TERMINATION OF EMPLOYMENT AND FORFEITURES
--------------------------------------------------
6.01 VESTING.
(a) A Participant shall at all times be 100% vested in his
Tax-Deferred Account, Voluntary Account and Rollover Account.
(b) A Participant's interest in his Employer Account shall
become 100% vested at the earliest of the following dates:
(i) The date the Participant has completed five (5)
Years of Vesting Service.
(ii) The date of the Participant's Normal Retirement
Date.
(iii) The date of the Participant's death.
(iv) The date the Participant incurs a Disability.
(v) The date of termination of this Plan.
6.02 TERMINATION OF EMPLOYMENT. Upon a Participant's termination of
employment with the Employer, he may make a written request to the Plan
Administrator for an immediate single sum cash payment equal to the value of his
Tax-Deferred Account, Voluntary Account and Rollover Account and, if he is
vested pursuant to Section 6.01(b), his Employer Account. The value of the
accounts shall be determined as of a Valuation Date selected by the Plan
Administrator which shall apply on a uniform basis to all Participants in the
same circumstances. Notwithstanding the foregoing, if the value of the
Participant's aggregate vested interest in his accounts under the Plan is not
more than $3,500 upon his termination of employment (or at the time of any prior
distribution to him under the Plan),
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the Plan Administrator shall make an immediate single sum cash payment to such
Participant in an amount equal to such value whether or not the Participant
requests such distribution.
Payment of such accounts shall be made as soon as practicable after the
Trustee receives from the Plan Administrator such written notice of early
distribution as shall be required by the Trustee.
Notwithstanding the foregoing, any distributions made pursuant to this
Section shall be subject to the requirements of Section 9.06.
6.03 FORFEITURES.
(a) If a Participant's termination of employment with the
Employer occurs prior to any of the dates referenced in Section 6.01(b), he
shall be deemed cashed out and shall forfeit the value of his Employer Account
as of the Forfeiture Date. The value of such account shall be determined as of
such Forfeiture Date and, except as provided in Article XII hereof, any amounts
so forfeited by Participants shall be used to offset future Employer Matching
Contributions under the Plan.
(i) If such a Participant subsequently resumes employment
with the Employer before incurring five (5) consecutive Breaks in Service,
the amount previously forfeited from his Employer Account shall be restored
to such account as soon as administratively practical after the Participant
is reemployed. The Employer shall make an additional contribution to the
Plan with respect to the Plan Year of such reemployment to the extent
necessary to effect such restoration.
(ii) If such a Participant subsequently resumes employment
with the Employer after incurring five (5) consecutive Breaks in Service,
any amounts previously forfeited shall not be restored.
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(b) If a fully vested Participant terminates employment with
the Employer and he subsequently resumes active employment with the Employer
prior to receiving a distribution of his Employer Account, such Participant
shall continue to be fully vested in such account on his date of reemployment.
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ARTICLE VII
DISTRIBUTIONS AT RETIREMENT, DEATH OR DISABILITY
------------------------------------------------
7.01 DISTRIBUTIONS AT RETIREMENT. A Participant shall, as of his
retirement on or after his Normal Retirement Date, be entitled to a distribution
of his accounts in a single sum cash payment. The value of the accounts shall be
determined as of a Valuation Date selected by the Plan Administrator which shall
apply on a uniform basis to all Participants in the same circumstances.
Notwithstanding the foregoing, if the value of a Participant's aggregate
vested interest in his accounts under the Plan is not more than $3,500 upon his
Normal Retirement Date, or the date he incurs a Disability (whichever is
applicable), or at the time of any prior distributions to him from the Plan, the
Plan Administrator shall make an immediate single sum cash payment to such
Participant in an amount equal to such value whether or not the Participant
consents to such distribution.
7.02 DISTRIBUTIONS UPON INCURRING DISABILITY. If a Participant
should incur a Disability prior to his Normal Retirement Date, he may elect by
written notice to the Plan Administrator to receive a distribution in accordance
with Section 7.01 at any time after the date he incurs the Disability and prior
to his Normal Retirement Date (provided he is then living). If no such election
is filed, distribution will be made in accordance with Section 7.01 as of the
disabled Participant's Normal Retirement Date.
7.03 DISTRIBUTIONS AT DEATH.
(a) If a Participant should die prior to distribution of his
entire accounts under the Plan, any amount credited to his accounts as of his
date of death (or the undistributed vested balance of his accounts in the case
of a terminated or retired Participant)
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shall be paid in a single sum cash payment to his Beneficiary as soon as
administratively practicable following the date the Participant's death is
reported to the Committee. If the Beneficiary is the Participant's surviving
spouse, distribution shall be made within 90 days of the Participant's death if
reasonably practicable, and otherwise as soon as administratively practicable.
If the Participant had attained his Normal Retirement Date prior to his death,
distribution shall be made no later than 60 days following the close of the Plan
Year in which his death occurs.
(b) Each Participant may designate, at such time and in such
manner as the Committee shall prescribe, a Beneficiary or Beneficiaries to
receive any amount distributable under the Plan after the death of the
Participant. Notwithstanding the foregoing, a Participant's sole Beneficiary
shall be his surviving spouse, if the Participant has a surviving spouse, unless
the Participant has designated another Beneficiary with the written consent of
such spouse (in which consent such Beneficiary is specified by name or class,
and the effect of such consent is acknowledged) witnessed by a notary public or
Plan representative. Any such consent shall be irrevocable. The Committee may,
in its sole discretion, waive the requirement of spousal consent if the
Committee is satisfied that the spouse cannot be located, or if the Participant
can show by court order that he has been abandoned by the spouse within the
meaning of local law, or if otherwise permitted under applicable regulations.
(c) A Participant may, from time to time in such manner as
the Committee shall prescribe, change his designated Beneficiary or
Beneficiaries, but any such designation which has the effect of naming a person
other than the surviving spouse as sole Beneficiary is subject to the spousal
consent requirement of subsection (b) above.
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(d) If a Participant has failed effectively to designate a
Beneficiary to receive the Participant's remaining account balances upon his
death, or a Beneficiary previously designated has predeceased the Participant
and no alternative designation has become effective, such account balances shall
be distributed to any one or more of the surviving members of the Participant's
relatives in the following order of preference: spouse, or in equal shares to
his children, grandchildren, or parents, or his estate.
7.04 LOANS TO PARTICIPANTS. Effective October 1, 1993, upon written
application of an active Participant, the Committee may direct the Trustee to
lend to the Participant such amount or amounts as the Committee may determine
proper from the Participant's accounts in the Plan (other than his Employer
Account), provided that the aggregate amount of all outstanding loans from this
Plan and from any other qualified plan maintained by the Employer or an
Affiliated Company, including accrued interest thereon, shall not exceed the
lesser of (a) $50,000, reduced by any loan repayment made during the one (1)
year period ending on the day before the date such loan is made, (b) 50% of the
Participant's vested interest in his accounts (determined at the time the loan
is made), or (c) the Participant's total account balance less the Employer
Account balance.
Each loan to Participants shall meet the following requirements:
(i) Loans shall be made available to all Participants on a
reasonably equivalent basis.
(ii) Loans shall not be made available to Highly Compensated
Employees in an amount greater than the amount made available to other
Participants.
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(iii) Loans shall be evidenced by the promissory notes of
the Participants, shall be adequately secured and shall bear a reasonable
interest rate. No more than 50% of the vested portion of the Participant's
accounts may be used as security for a loan.
(iv) In the event of default, foreclosure on the note and
attachment of security will not occur until a distributable event occurs
under the Plan.
(v) Each loan shall by its terms require that repayment
(principal and interest) be amortized in level payments, not less
frequently than quarterly, over a period not extending beyond five (5)
years from the date of the loan. If the loan is used to acquire any
dwelling unit which within a reasonable time is to be used (determined at
the time such loan is made) as a principal residence of the Participant,
then the repayment period shall not extend beyond 15 years.
(vi) The minimum loan amount shall be $1,000 and no
Participant may have more than two (2) outstanding loans from this Plan and
any other qualified plan maintained by the Employer or an Affiliated
Company at any time.
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(vii) Each such loan shall be administered in accordance with
the Plan's participant loan policy.
Each such loan shall be deemed to be an investment made at the direction of
such Participant and shall be credited to the separate investment account of the
borrowing Participant. The Participant's accounts (other than his Employer
Account) shall be reduced to the extent necessary to permit the establishment of
a separate loan account for such Participant in the following order:
Tax-Deferred Account, Rollover Account and Voluntary Account. The reduction from
the Investment Funds in each account shall be made on a pro rata basis. All
interest and loan repayments, adjusted for administrative expenses, shall be
credited to such Member's separate loan account. Amounts credited to such
Member's separate loan account as a result of payments of interest and principal
shall be credited to the Participant's accounts in the inverse order used to
fund the loan and shall be reinvested as soon as practicable in the Plan's
Investment Funds in accordance with the investment election of the Participant
for new contributions currently on file with the Committee.
If any part or all of the amount standing to one or more of the
Participant's accounts under the Plan shall become distributable to such
Participant or his Beneficiary while a loan to such Participant under this
Section 7.04 is outstanding, the Committee shall direct the Trustee to apply the
amount of such distribution in payment of the entire outstanding loan principal,
whether or not then due, and any interest theretofore accrued, before
distributing the balance, if any, to the Participant or his Beneficiary.
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ARTICLE VIII
ADMINISTRATION
--------------
8.01 ALLOCATION OF RESPONSIBILITY. The Board of Directors of the
Employer and the Plan Administrator shall have only those specific powers,
duties, responsibilities and obligations as are specifically given them under
this Plan and the trust agreement. In general, the Board of Directors of the
Employer shall have the sole responsibility for the appointment of the
Retirement Committee. The Board of Directors of the Employer and the Plan
Administrator shall each warrant that any directions given, information
furnished or action taken shall be in accordance with the provisions of this
Plan authorizing or providing for such direction, information or action.
8.02 APPOINTMENT OF PLAN ADMINISTRATOR. The Plan shall be
administered by a Retirement Committee which shall consist of three or more
members. Such members shall be appointed by and serve at the pleasure of the
Board of Directors of Grinnell Corporation. All usual and reasonable expenses of
the Committee shall be paid by the Employer. Any members of the Committee who
are Employees of the Employer shall not receive compensation with respect to
their services on the Committee. Any such Employee member shall not be precluded
from participating in this Plan, but shall not be permitted to make any decision
or take any action with respect to his own participation in the Plan.
Any action taken by the Committee shall be by majority rule of the members
of the Committee. The Committee may delegate to any one of their number
authority to sign documents on behalf of the Committee, or to perform
ministerial acts, but no person to whom such authority is delegated shall
perform any act involving the exercise of discretion
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<PAGE>
without first obtaining the approval of the Committee. Any member of the
Committee may resign at any time by providing the Board of Directors of Grinnell
Corporation with written notice of his intent to resign. Such Board of Directors
may remove any member of the Committee at any time by providing such member with
written notification of his removal.
8.03 CLAIMS PROCEDURE. The Plan Administrator shall make all
determinations as to the right of any person to a benefit. Any denial by the
Plan Administrator of the claim for benefits to a Participant, former
Participant or Beneficiary under the Plan shall be stated in writing by it and
delivered or mailed to the Participant, former Participant or Beneficiary; and
such notice shall set forth the specific reasons for the denial, written to the
best of its ability in a manner that may be understood without legal or
actuarial counsel.
Any person whose claim has been denied shall have the opportunity to appeal
such denial by written notification to the Plan Administrator within 60 days
following receipt of notice of denial. Within 60 days following receipt of such
written appeal, the Plan Administrator shall transmit written notification of
its decision regarding the appeal to said person, provided, however, that if the
Plan Administrator determines a hearing shall be necessary, such 60 day period
shall be extended to 120 days.
8.04 RECORDS AND REPORTS. The Plan Administrator shall exercise such
authority and responsibility as it deems appropriate in order to comply with
ERISA, and governmental regulations issued thereunder relating to records of
Participants' Service, benefits and the percentage of such benefits which are
nonforfeitable under the Plan; notifications to Participants; periodic
registration with the Internal Revenue Service; and annual reports to the
Internal Revenue Service and/or the Department of Labor.
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8.05 POWERS AND DUTIES OF THE PLAN ADMINISTRATOR. The Plan
Administrator shall have such duties and powers as may be necessary to discharge
its duties hereunder, including, but not limited to, the following:
(a) To construe and interpret the Plan, decide all questions of
eligibility and determine the amount and time of payment of any benefits
hereunder;
(b) To prescribe procedures to be followed by Participants,
former Participants or Beneficiaries in filing applications for benefits;
(c) To prepare and distribute, in such manner as it determines
to be appropriate, information explaining the Plan;
(d) To receive from the appropriate sources such
information as shall be necessary for the proper administration of the Plan;
(e) To appoint or employ individuals to assist in the
administration of the Plan and any other agents it deems advisable, including
legal counsel;
(f) To select appropriate investment vehicles, including
fixed interest contracts, to constitute the Investment Funds under the Trust for
the investment of plan assets, to permit Participants to direct investment of
their account balances in the Investment Funds, and to prescribe rules and
procedures relating to such directed investment; and
(g) To enter into any and all contracts, fixed interest
contracts, and agreements for carrying out the terms of the Plan and the
administration thereof, to select the Investment Funds available under the Trust
and to do all acts as the Plan Administrator, in its sole discretion, may deem
necessary or appropriate, and all such contracts, agreements, and acts shall be
binding and conclusive on the parties hereto and on the Employees involved.
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Except as provided by Section 10.02, the Plan Administrator shall have no
power to add to, subtract from or modify any of the terms of the Plan, or to
change or add to any benefits provided by the Plan, or to waive or fail to apply
any requirements of eligibility for a benefit under the Plan.
8.06 RULES AND DECISIONS. The Plan Administrator may adopt such
rules as it deems necessary, desirable, or appropriate. All rules and decisions
of the Plan Administrator shall be uniformly and consistently applied to all
Participants in similar circumstances. When making a determination or
calculation, the Plan Administrator shall be entitled to rely upon information
furnished by a Participant or Beneficiary, the legal counsel of the Employer,
the insurance company, or the Trustee.
8.07 AUTHORIZATION OF BENEFIT PAYMENTS. The Plan Administrator shall
issue directions to the appropriate party, including the Trustee, concerning the
payment of all benefits which are to be paid from the assets of the Plan, and
warrants that all such directions are in accordance with the provisions of this
Plan.
8.08 APPLICATION AND FORMS FOR BENEFITS. The Plan Administrator may
require a Participant or Beneficiary to complete and file with it an application
for benefits and all other forms approved by it and furnish all pertinent
information requested by it, including the Participant's or Beneficiary's
current mailing address.
8.09 FACILITY OF PAYMENT. Whenever, in the Plan Administrator's
opinion, a person entitled to receive any benefit hereunder is under a legal
disability or is incapacitated in any way so as to be unable to manage his
financial affairs, the Plan Administrator may cause payments otherwise payable
to such person to be made to such person's legal representative for his benefit.
Any payment of benefits in accordance with the
42
<PAGE>
provisions of this Section 8.09 shall be a complete discharge of any liability
for the making of such payment under the provisions of this Plan. In the event
that a person entitled to receive any benefit hereunder cannot be located after
reasonable efforts of the Plan Administrator, such person's benefit shall be
forfeited, and shall be reapplied in such a way as to offset future Employer
Matching Contributions under this Plan; provided, however, that if such person
subsequently files a claim for benefit with the Plan Administrator, such benefit
shall be restored (by a special Employer contribution) to the value previously
forfeited.
8.10 COMPENSATION OF PLAN ADMINISTRATOR AND PLAN EXPENSES.
The Plan Administrator shall serve without compensation for services as such,
but all expenses of the Plan Administrator in administering the Plan shall
constitute a charge upon the Trust, unless paid by the Employer in its sole
discretion. Such expenses shall include any expenses incident to the functioning
of the Plan and Trust, including, but not limited to, attorneys' fees, fidelity
bonding, accounting and clerical charges, trustee fees, plan investment costs,
recordkeeping fees, consultants' fees and other costs of administering the Plan
and Trust.
8.11 INDEMNIFICATION. The Employer shall indemnify and hold harmless
each member of the Committee from and against any and all claims, losses,
damages, expenses (including reasonable attorneys' fees approved by the
Employer) and liability (including any reasonable amounts paid in settlement
with the Employer's approval) arising from any act or omission of such member,
except when the same is judicially determined to be due to the willful
misconduct of such member.
43
<PAGE>
ARTICLE IX
MISCELLANEOUS
-------------
9.01 NONGUARANTEE OF EMPLOYMENT. Nothing contained in this Plan
shall be construed as a contract of employment between the Employer and any
Employee, or as a right of any Employee to be continued in the employment of the
Employer, or as a limitation of the right of the Employer to discharge any of
its Employees, with or without cause.
9.02 RIGHTS OF EMPLOYEES AND BENEFICIARIES. No Employee or
Beneficiary shall have any right to or interest in any assets of the Plan upon
termination of his employment or otherwise, except as provided from time to time
under this Plan, and then only to the extent of the benefits payable under the
Plan to such Employee or Beneficiary out of such assets. All payments of
benefits as provided for in this Plan shall be made solely out of Plan assets.
9.03 NONALIENATION OF BENEFITS. Benefits payable under this Plan
shall not be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, charge, garnishment, execution, or levy of any
kind, either voluntary or involuntary, including any such liability which is for
alimony or other payments for the support of a spouse or former spouse, or for
any other relative of the Employee, prior to actually being received by the
person entitled to the benefit under the terms of the Plan; and any attempt to
anticipate, alienate, sell, transfer, assign, pledge, encumber, charge or
otherwise dispose of any right to benefits payable hereunder shall be void; and
the Plan assets shall not in any manner be liable for, or subject to, the debts,
contracts, liabilities, engagements or torts of any person entitled to benefits
hereunder; provided, however, that
44
<PAGE>
nothing herein shall restrict or prohibit the creation, assignment, or
recognition of a right to any benefit payable with respect to a Participant
pursuant to a "qualified domestic relations order" (within the meaning of
Sections 401(a)(13)(B) and 414(p) of the Code).
9.04 DISCONTINUANCE OF EMPLOYER CONTRIBUTIONS. In the event of
permanent discontinuance of contributions to the Plan by the Employer, the
accounts of all Participants shall, as of the date of such discontinuance,
become fully vested.
9.05 REVERSION TO EMPLOYER. The Employer has no beneficial
interest in the Plan assets and no part of the Plan assets shall ever revert or
be repaid to the Employer, directly or indirectly, except that
(a) if a contribution is made by the Employer to the Plan by
mistake of fact, such contribution may be returned to the Employer within one
(1) year from the date the contribution is made, or
(b) if the Employer is denied a Federal income tax deduction
with respect to all or any portion of its contribution to the Plan, such
contribution (to the extent disallowed) shall be returned to the Employer within
one (1) year from the date of disallowance, it being the intent that all
contributions to the Plan by the Employer shall be so deductible.
9.06 COMMENCEMENT AND TIMING OF DISTRIBUTIONS.
(a) Any distribution to be made under this Plan to any
Participant shall be made no later than the 60th day following the close of the
Plan Year in which the Participant reaches his Normal Retirement Date or
terminates employment, whichever is later.
45
<PAGE>
(b) Any distribution to be made under this Plan to a
Participant shall begin no later than the April 1 following the close of the
calendar year in which such Participant attains age 70-1/2 (the "Required
Beginning Date").
(c) If the value of a terminated Participant's aggregate
vested interest in his accounts exceeds $3,500, distribution may not be made to
such Participant without his written consent. Distribution may commence less
than 30 days after the notice referred to under Section 1.411(a)-11(c) of the
Income Tax Regulations is given, provided that (i) the Plan Administrator
clearly informs the Participant that the Participant has a right to a period of
at least 30 days after receiving the notice to consider the decision of whether
or not to elect a distribution, and (ii) the Participant, after receiving the
notice, affirmatively elects a distribution. A Participant may also choose to
delay the receipt of his distribution but in no event shall a distribution
commence later then his Required Beginning Date. The value of the Participant's
accounts subject to distribution pursuant to this Section 9.06 shall be
determined as of the Valuation Date selected by the Plan Administrator which
shall apply on a uniform basis to all Participants in the same circumstances.
(d) Notwithstanding any other provision of the Plan, a
Participant's Tax-Deferred Account and Voluntary Account shall not be
distributable prior to his separation from service, Disability, death or
attainment of age 59-1/2, except (i) in cases of hardship as provided in Section
5.01 of the Plan, (ii) upon termination of the Plan without establishment or
maintenance of another defined contribution plan (other than an employee stock
ownership plan as defined in Section 4975(e)(7) of the Code), (iii) upon
disposition by the Employer or an Affiliated Company of substantially all of the
assets used by such corporation in a trade or business, in the case of a
Participant who continues employment
46
<PAGE>
with the corporation acquiring such assets, or (iv) disposition by an Employer
or Affiliated Company of such corporation's interest in a subsidiary, with
respect to a Participant who continues employment with such subsidiary. No
distribution shall be authorized by clauses (ii), (iii) or (iv) above, unless
the distribution qualifies as a "lump sum distribution" within the meaning of
section 401(k)(10)(B) of the Code.
(e) In the event a Participant dies before his Required
Distribution Date, his entire interest shall be paid to his Beneficiary in a
lump sum no later than December 31 of the calendar year containing the fifth
(5th) anniversary of the Participant's death; provided, however, that if the
Beneficiary is the Participant's spouse, the spouse may elect an annuity form of
payment which shall commence no later than December 31 of the calendar year in
which the Participant would have attained age 70-1/2.
If a Participant dies on or after his Required Distribution Date, the
Participant's remaining interest in the Plan shall be distributed at least as
rapidly as under the method of distribution being used as of the date of death.
(f) If, and to the extent that, any portion of a
Participant's vested account balances is payable to a former spouse or dependent
pursuant to a qualified domestic relations order within the meaning of Sections
401(a)(13)(B) and 414(p) of the Code, the provisions of said order shall govern
the distribution thereof. Such an order may provide for payments to a former
spouse or dependent even though the Participant is still employed by the
Employer or is otherwise not eligible for the distribution of benefits under the
Plan.
9.07 JURISDICTION. This Plan shall be construed in accordance with
the laws of the jurisdiction of the State of New Hampshire except to the extent
to which said laws are superseded by Federal law.
47
<PAGE>
9.08 LEASED EMPLOYEES. A "leased employee" shall receive credit for
Hours of Service, Years of Eligibility Service and Years of Vesting Service for
the entire period during which he is a leased employee of the Employer as if he
were an Employee of the Employer; provided, however, that a leased employee
shall not be an Eligible Employee for purposes of participation in the Plan as
long as he remains a leased employee. For purposes of this Section 9.08, the
term "leased employee" means any person (a) who is not an Employee of the
Employer and (b) who pursuant to an agreement between the Employer and any other
person (a "leasing organization") has performed services for the Employer of a
type historically performed by employees in the business field of the Employer
on a substantially full-time basis for a period of at least one (1) year.
Notwithstanding the foregoing, if leased employees constitute less than 20% of
the Employer's non-highly compensated work force within the meaning of Section
414(n)(5) of the Code, a person who is covered by a money purchase pension plan
maintained by the leasing organization which provides a nonintegrated employer
contribution rate of at least ten percent (10%) of compensation, immediate
participation and full and immediate vesting shall not be considered a "leased
employee."
48
<PAGE>
ARTICLE X
AMENDMENTS AND ACTION BY EMPLOYER
---------------------------------
10.01 AMENDMENTS. Subject to the applicable collective bargaining
agreement, the Employer reserves the right to make from time to time any
amendment or amendments to this Plan which do not cause any part of the assets
of the Plan to be used for, or diverted to, any purpose other than the exclusive
benefit of Participants or their Beneficiaries; provided, however, that the
Employer may make any amendment it determines necessary or desirable, with or
without retroactive effect, to comply with the requirements of the Code or of
any other pertinent provision of Federal or State law, or any regulation or
ruling of any duly constituted authority in connection therewith.
10.02 ACTION BY EMPLOYER. Any action by the Employer under this Plan
may be made by resolution of its Board of Directors, or by any person or persons
duly authorized by resolution of said Board to take such action. Each Employer
hereunder shall have and exercise all the rights, powers and duties thereof with
respect to the Plan as applied to itself and its employees and those assets of
the Plan which represent accounts of Participants employed by it. Each Employer
hereby delegates all such rights and powers including amendment or termination
of the Plan, to the Plan Administrator, acting alone, except as such Employer
may exercise the same for itself.
49
<PAGE>
ARTICLE XI
SUCCESSOR EMPLOYER AND MERGER
OR CONSOLIDATION OF PLANS
-------------------------
11.01 SUCCESSOR EMPLOYER. In the event of the dissolution, merger,
consolidation or reorganization of the Employer, provision may be made by which
the Plan will be continued by the successor; and, in that event, such successor
shall be substituted for the Employer under the Plan. The substitution of the
successor shall constitute an assumption of Plan liabilities by the successor
and the successor shall have all the powers, duties and responsibilities of the
Employer under the Plan.
11.02 PLAN ASSETS. In the event of any merger or consolidation of the
Plan with, or transfer in whole or in part of the assets and liabilities of the
Plan to, another plan of deferred compensation maintained or to be established
for the benefit of all or some of the Participants of this Plan, the assets of
this Plan applicable to such Participants shall be transferred to the other plan
only if
(a) each Participant would (if either this Plan or the other
plan then terminated) 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 this Plan had then terminated);
(b) resolutions of the Board of Directors of the Employer
under this Plan, or of any new or successor employer of the affected
Participants, shall authorize such transfer of assets; and in the case of the
new or successor employer of the affected Participants, its resolutions shall
include an assumption of liabilities with respect to such Participant's
inclusion in the new employer's plan; and
50
<PAGE>
(c) such other plan is qualified under Section 401(a) of
the Code.
51
<PAGE>
ARTICLE XII
PLAN TERMINATION
----------------
12.01 RIGHT TO TERMINATE. Subject to the applicable collective
bargaining agreement, in accordance with the procedures set forth in this
Article, the Employer may terminate the Plan at any time. In the event of the
dissolution, merger, consolidation or reorganization of the Employer, the Plan
shall terminate and, subject to Section 9.06(e) of the Plan, the Plan assets
shall be liquidated unless the Plan is continued by a successor to the Employer
in accordance with Section 11.01.
12.02 PARTIAL TERMINATION. Upon termination of the Plan with respect
to a group of Participants which constitutes a partial termination of the Plan,
the Plan Administrator shall allocate and segregate for the benefit of the
Employees then or theretofore employed by the Employer with respect to which the
Plan is being terminated the proportionate interest of such Participants in the
Plan assets. The assets so allocated and segregated shall be used by the Plan
Administrator to pay benefits to or on behalf of Participants in accordance with
Section 12.03.
12.03 LIQUIDATION OF THE PLAN. Upon termination or partial
termination of the Plan, the accounts of all Participants affected thereby shall
become fully vested, and the Plan Administrator shall, subject to the provisions
of the immediately following paragraph, cause the assets remaining in the Plan,
including any forfeitures which shall not have been applied to reduce Employer
Matching Contributions hereunder, to be allocated to the remaining Participants
and Beneficiaries in proportion to their respective Employer Account balances.
52
<PAGE>
In the event that any service charges assessed under this Plan are due and
unpaid as of such Plan termination date, the payment of such charges shall be
satisfied (a) by deducting the required amount from any then unallocated Plan
assets, and/or, if such Plan assets are insufficient to pay the full required
amount, (b) by deducting a pro-rata share of the amount remaining to be paid
from each Participant's Employer Account (if necessary).
12.04 MANNER OF DISTRIBUTION. Upon termination of the Plan, the Plan
Administrator shall direct the Trustee to make distributions to the Participants
or other person or persons entitled thereto in accordance with the provisions of
Article VII, provided, however, that, subject to the provisions of Section
9.06(e) of the Plan, the Plan Administrator may proceed with such distributions
at any time after such termination but prior to the time the Participants would
otherwise become entitled thereto under the Plan.
53
<PAGE>
ARTICLE XIII
DISCHARGE OF DUTIES BY FIDUCIARIES
----------------------------------
The Board of Directors of the Employer and the Plan Administrator and any
other person who, by reason of his involvement in and under this Plan, shall be
deemed to be a fiduciary within the meaning of Title I, Section 3(21) of ERISA,
shall discharge their Plan related duties and responsibilities solely in the
interest of the Participants and their Beneficiaries and with 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 the
conduct of an enterprise of a like character and with like aims.
54
<PAGE>
ARTICLE XIV
DIRECT ROLLOVERS
----------------
14.01 APPLICATION OF THIS ARTICLE. This Article applies to
distributions made on or after January 1, 1993. Notwithstanding any provision of
the Plan to the contrary that would otherwise limit a distributee's election
under this Article, a distributee may elect, at the time and in the manner
prescribed by the Committee, to have any portion of an Eligible Rollover
Distribution from the Plan paid directly to an Eligible Retirement Plan
specified by the distributee in a Direct Rollover.
14.02 DEFINITIONS. Whenever used in this Article or elsewhere in the
Plan, the following words shall have the following meanings:
(a) Eligible Rollover Distribution: An Eligible Rollover
------------------------------
Distribution is any distribution of all or any portion of the balance to the
credit of the distributee, except that an eligible rollover distribution does
not include: any distribution that is one of a series of substantially equal
periodic payments (not less frequently than annually) made for the life (or life
expectancy) of the distributee or the joint lives (or joint life expectancies)
of the distributee and the distributee's designated beneficiary, or for a
specified period of ten years or more; any distribution to the extent such
distribution is required under Section 401(a)(9) of the Code; and the portion of
any distribution that is not includible in gross income (determined without
regard to the exclusion for net unrealized appreciation with respect to employer
securities).
(b) Eligible Retirement Plan: An Eligible Retirement Plan is
------------------------
an individual retirement account described in Section 408(a) of the Code, an
individual retirement annuity described in Section 408(b) of the Code, an
annuity plan described in Section 403(a) of the
55
<PAGE>
Code, or a qualified trust described in Section 401(a) of the Code, that accepts
the distributee's Eligible Rollover Distribution. However, in the case of an
Eligible Rollover Distribution to the surviving spouse, an Eligible Retirement
Plan is an individual retirement account or individual retirement annuity.
(c) Distributee: A distributee includes an Employee or
-----------
former Employee. In addition, the Employee's or former Employee's surviving
spouse and the Employee's or former Employee's spouse or former spouse who is
the alternate payee under a qualified domestic relations order, as defined in
Section 414(p) of the Code, are distributees with regard to the interest of the
spouse or former spouse.
(d) Direct Rollover: A Direct Rollover is a payment by the
---------------
Plan to the Eligible Retirement Plan specified by the distributee.
Executed as of the 28 day of November, 1993 by a duly authorized member
-- --------
of the Retirement Committee.
RETIREMENT COMMITTEE UNDER THE
TYCO INTERNATIONAL LTD. RETIREMENT
SAVINGS AND INVESTMENT PLAN FOR
HOURLY EMPLOYEES COVERED BY A
COLLECTIVE BARGAINING AGREEMENT
By: /s/ John A. Helfrich
----------------------------
56
<PAGE>
SCHEDULE A
----------
Eligible Employees: Employees who are covered by a collective bargaining
------------------
agreement between Grinnell Corporation Cincinnati Plant and the Truckdrivers,
Chauffeurs and Helpers, Local Union 100, an affiliate of the International
Brotherhood of Teamsters Chauffeurs, Warehousemen and Helpers of America.
Effective Date: September 1, 1992.
--------------
Special Eligibility Rule: All Eligible Employees employed on the Effective
------------------------
Date are eligible to become Participants on the Effective Date.
Basic Tax-Deferred Contributions: $150 per year.
--------------------------------
Supplemental Tax-Deferred Contributions: Not Permitted.
---------------------------------------
Voluntary Tax-Deferred Contributions: Up to 10% of Compensation.
------------------------------------
Employer Matching Contributions: The Employer will make Employer Matching
-------------------------------
Contributions equal to $1.00 for each $1.00 of Basic Tax-Deferred Contributions
made by each Participant, up to $150 per Plan Year per Participant.
Withdrawals From Voluntary Accounts: Not Permitted.
-----------------------------------
57
<PAGE>
SCHEDULE B
----------
Eligible Employees: Employees at the Milwaukee plant of Grinnell
------------------
Corporation who are covered by a collective bargaining agreement with Local 601
Steamfitters.
Effective Date: December 31, 1992.
--------------
Special Eligibility Rule: All Members of the Grinnell Milwaukee Union
------------------------
Retirement Savings and Investment Plan on December 31, 1992 shall continue to be
Participants in this Plan on the Effective Date.
Basic Tax-Deferred Contributions: 1% of Compensation.
--------------------------------
Supplemental Tax-Deferred Contributions: Not Permitted.
---------------------------------------
Voluntary Tax-Deferred Contributions: Up to 9% of Compensation.
------------------------------------
Employer Matching Contributions: The Employer will make Employer Matching
-------------------------------
Contributions equal to $1.00 for $1.00 of Basic Tax-Deferred Contributions made
by each Participant.
Withdrawals From Voluntary Accounts: Permitted.
-----------------------------------
58
<PAGE>
SCHEDULE C
----------
Eligible Employees: Employees located at the Armin Poly-Version-New Jersey
- ------------------
location who are covered by a collective bargaining agreement between Armin
Plastics, a division of Tyco International Ltd., and United Auto Workers Local
259. The age 21 requirement found in Section 2.01 of the Plan shall not apply.
Effective Date: January 1, 1994.
--------------
Basic Tax-Deferred Contributions: 1% of Compensation.
--------------------------------
Supplemental Tax-Deferred Contributions: After a Participant has completed
---------------------------------------
five (5) Years of Service, he may make Supplemental Tax-Deferred Contributions
beginning on the Entry Date coincident with or next following his completion of
five (5) Years of Service pursuant to the following table, based on the number
of Years of Service completed by the Participant;
Maximum Supplemental
Years of Service Tax-Deferred Contributions
---------------- --------------------------
5-9 1%
10-14 2%
15-19 3%
20 or more 4%
Voluntary Tax-Deferred Contributions: Up to tax limitations set forth in
------------------------------------
Article IV.
Employer Matching Contributions: The Employer will make Employer Matching
-------------------------------
Contributions equal to the sum of (a) $2.00 for each $1.00 of Basic Tax-Deferred
Contributions made by each Participant, and (b) $1.00 for each $1.00 of
Supplemental Tax-Deferred Contributions made by each Participant.
Withdrawals From Voluntary Accounts: Permitted.
-----------------------------------
59
27789.b2
12/8/93 3:04 pm
<PAGE>
SCHEDULE D
ELIGIBLE EMPLOYEES: Employees located at the Atlanta Regional Distribution
- ------------------
Center who is covered by a collective bargaining agreement between Grinnell
Corporation and Local Union 528. The age 21 requirement found in Section
2.01 of the Plan shall not apply.
EFFECTIVE DATE: July 1, 1994
- --------------
BASIC TAX-DEFERRED CONTRIBUTIONS: $125/year
- --------------------------------
SUPPLEMENTAL TAX-DEFERRED CONTRIBUTIONS: Up to the maximum amount permitted
- ---------------------------------------
under the Code.
VOLUNTARY TAX-DEFERRED CONTRIBUTIONS: Up to the maximum amount permitted
- ------------------------------------
under the Code.
EMPLOYER MATCHING CONTRIBUTIONS: The Employer will make Employer Matching
- -------------------------------
Contributions equal to $2,00 for each $1.00 of Basic Tax-Deferred
Contributions.
WITHDRAWALS FROM VOLUNTARY ACCOUNTS: Permitted
- -----------------------------------
60
<PAGE>
SCHEDULE E
ELIGIBLE EMPLOYEES: Employees located at the Grinnell corporation Fresno
- ------------------
Fabrication Center who is covered by a collective bargaining agreement
between Grinnell corporation and Road Sprinkler Fitters Local Union 669.
All Eligible employees employed on October 1, 1994 are eligible to join the
Plan on such date. All Eligible Employees hired after October 1, 1994 are
eligible to join the Plan on the Entry Date coincident with or after they
meet the eligibility requirements of Section 2.01 of the Plan.
EFFECTIVE DATE: October 1, 1994
- --------------
BASIC TAX DEFERRED CONTRIBUTIONS: $250/year.
- --------------------------------
SUPPLEMENTAL TAX-DEFERRED CONTRIBUTIONS: None.
- ---------------------------------------
VOLUNTARY TAX-DEFERRED CONTRIBUTIONS: Up to the maximum amount permitted
- ------------------------------------
under the Code.
EMPLOYER MATCHING CONTRIBUTIONS: The Employer will make Employer Matching
- -------------------------------
Contributions equal to $3.00 each for $1.00 of Basic Tax-Deferred
Contributions.
WITHDRAWALS FROM VOLUNTARY ACCOUNTS: Permitted.
- -----------------------------------
Exhibit 10.1L1
FIRST AMENDMENT TO
TYCO INTERNATIONAL LTD
RETIREMENT SAVINGS AND INVESTMENT PLAN FOR
HOURLY EMPLOYEES COVERED BY A COLLECTIVE BARGAINING AGREEMENT
A. The Tyco International Ltd. Retirement Savings and Investment Plan For
Hourly Employees Covered By a Collective Bargaining Agreement established as of
September 1, 1992, as amended and restated as of July 1, 1993, is further
amended as follows:
1. Section 1.21 is hereby amended by deleting said Section in its
entirety and substituting the following at the end thereof:
"1.21 "Highly Compensated Employee" shall mean:
(a) any Employee who was, at any time in the look-back year or
determination year, a 5% owner;
(b) any Employee who, in the look-back year:
(i) received in Compensation more than $75,000 (as adjusted by
the Secretary of the Treasury to reflect rises in the cost
of living in accordance with Code Section 415(d)),
(ii) was an officer and received in Compensation more than 50% of
the dollar limitation in effect for such year under Code
Section 415(b)(1)(A); or
(iii) received in Compensation more than $50,000 (as adjusted
by the Secretary of the Treasury to reflect rises in
the cost of living in accordance with Code Section
415(d)) and was among the top 20% of Employees when
ranked on the basis of Compensation paid during such
year.
For purposes of calculating the top 20% of Employees when ranked
on the basis of Compensation paid during the look-back year,
there shall be excluded from the total number of Employees: (A)
Employees with less than six months of Service, (B) Employees who
normally work less than 17 1/2 hours per week, (C) Employees who
normally work less than six months per year, (D) except as
<PAGE>
provided in Treasury Regulations, Employees covered by a
collective bargaining agreement, and (E) Employees who are
nonresident aliens and who receive no earned income from the
Employer that constitutes income from sources within the United
States;
(c) any Employee not described in paragraph (b) above but who is
described in clause (i), (ii) or (iii) of paragraph (b) if the
term "determination year" is substituted for the term "look-back
year," and the Employee is among the 100 Employees who received
the most compensation from the Employer during the determination
year; and
(d) any former Employee who has separated from Service but who was a
Highly Compensated Employee as described in paragraph (a), (b) or
(c) above when he separated from Service or at any time after he
attained age 55.
For purposes of this Section, "Compensation" shall mean the amount paid
during the look-back year or determination year, whichever is applicable,
by the Employer or an Affiliated Company to the Employee for services
rendered (regardless of whether the individual was a Participant at the
time) as reportable to the Federal Government for the purpose of
withholding federal income taxes and increased by any amount to which Code
Sections 125, 402(e)(3), 402(h)(1)(B) or 403(b) apply. Also for purposes of
this Section, no more than 50 Employees or, if lesser, the greater of three
Employees or 10% of Employees shall be treated as officers; however, if no
officer has compensation in excess of the applicable stated dollar amount
above in any year, the officer with the highest Compensation shall be
treated as described in paragraph (b) or (c), as applicable.
For this purpose, the determination year shall be the Plan Year. The
look-back year shall be the 12-month period immediately preceding the
determination year. The Committee may elect to make the look-back year
calculation for a determination on the basis of the calendar year ending
with or within the applicable determination year, as prescribed by Section
414(q) of the Code and the regulations issued thereunder.
For the purpose of this Section 1.21, the Employer and all Affiliated
Companies shall be treated as a single employer."
2
<PAGE>
2. Article III is hereby amended by adding the following Section 3.10 at
the end thereof:
3.10 VALUATION AND ALLOCATION OF TRUST ASSETS
As of each Valuation Date, the Trustee shall determine the net worth of the
Trust and each of the Investment Funds, and the Committee shall adjust the
account balances of each Participant to reflect their proportionate share
of income, losses, appreciation, depreciation and expenses of each
Investment Fund since the last Valuation Date. In determining the net worth
of the Trust and of each Investment Fund, the Trustee shall value the
assets at their fair market value."
3. Section 4.01(d) is hereby amended by adding the following at the end
thereof:
"Tax-Deferred Contributions will be taken into account under the test in
subsection (c) above for a Plan Year only if they are allocated to a
Participant's account as of a date within that Plan Year."
4. Section 4.02 is hereby amended by adding the following at the end
thereof:
"The limitation on annual additions of this Section 4.04 shall apply to all
defined contribution plans (including voluntary employee contribution
accounts in a defined benefit plan and key employee accounts under a
welfare benefit plan described in Section 419 of the Code, as well as
employer contributions allocated to an IRA) of the Employer and all
Affiliated Companies, whether or not terminated, and all such plans shall
be treated as one defined contribution plan for purpose of the limitation
of this Section 4.04."
5. Section 12.03 is hereby amended by deleting the first sentence thereof
and substituting the following in lieu thereof:
"Upon termination or partial termination of the Plan or a complete
discontinuance of contributions, the Employer Accounts of all Participants
affected thereby shall become fully vested, and the Plan Administrator
shall, subject to the provisions of the immediately following paragraph,
cause the assets remaining in the Plan, including any forfeitures which
have not been applied to reduce Employer
3
<PAGE>
Matching Contributions hereunder, to be allocated to the remaining
Participants and Beneficiaries in proportion to their respective Employer
Account balances."
B. The effective date of this First Amendment shall be September 1, 1992.
C. Except as amended herein, the Plan is confirmed in all other respects.
IN WITNESS THEREOF, this First Amendment has been signed and sealed for by
an authorized member of the Retirement Committee this 21 day of February, 1995.
-- --------
RETIREMENT COMMITTEE UNDER
THE TYCO INTERNATIONAL LTD
RETIREMENT SAVINGS AND
INVESTMENT PLAN FOR HOURLY
EMPLOYEES COVERED BY A
COLLECTIVE BARGAINING
AGREEMENT
By: /s/ John A. Helfrich
-----------------------------
94680.b1
GOODWIN, PROCTER & HOAR REGIONAL PROTOTYPE
DEFINED CONTRIBUTION BASIC PLAN DOCUMENT
<PAGE>
TABLE OF CONTENTS
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ARTICLE I PURPOSE; INTERNAL REVENUE SERVICE APPROVAL. . . . . 1
1.01 Purpose. . . . . . . . . . . . . . . . . . . . . . . 1
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1.02 Internal Revenue Service Approval. . . . . . . . . . 1
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1.03 Qualification. . . . . . . . . . . . . . . . . . . . 1
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ARTICLE II DEFINITIONS . . . . . . . . . . . . . . . . . . 2
2.01 "Account". . . . . . . . . . . . . . . . . . . . . . 2
2.02 "Adoption Agreement" . . . . . . . . . . . . . . . . 2
2.03 "Anniversary Date" . . . . . . . . . . . . . . . . . 2
2.04 "Annuity Starting Date". . . . . . . . . . . . . . . 2
2.05 "Basic Plan Document". . . . . . . . . . . . . . . . 2
2.06 "Beneficiary". . . . . . . . . . . . . . . . . . . . 2
2.07 "Compensation" . . . . . . . . . . . . . . . . . . . 2
2.08 "Disability" . . . . . . . . . . . . . . . . . . . . 3
2.09 "Earned Income". . . . . . . . . . . . . . . . . . . 3
2.10 "Effective Date" . . . . . . . . . . . . . . . . . . 4
2.11 "Employee" . . . . . . . . . . . . . . . . . . . . . 4
2.12 "Employer" . . . . . . . . . . . . . . . . . . . . . 5
2.13 "Entry Date" . . . . . . . . . . . . . . . . . . . . 5
2.14 "Excess Compensation". . . . . . . . . . . . . . . . 5
2.15 "Fiscal Year". . . . . . . . . . . . . . . . . . . . 5
2.16 An "Hour of Service". . . . . . . . . . . . . . . . 5
2.17 "Member" . . . . . . . . . . . . . . . . . . . . . . 6
2.18 "Net Profits". . . . . . . . . . . . . . . . . . . . 6
2.19 "Normal Retirement Age". . . . . . . . . . . . . . . 6
2.20 "One-Year Break in Service". . . . . . . . . . . . . 6
2.21 "Owner-Employee" . . . . . . . . . . . . . . . . . . 6
2.22 "Permissible Investment" . . . . . . . . . . . . . . 7
2.23 "Plan" . . . . . . . . . . . . . . . . . . . . . . . 7
2.24 "Plan Administrator" . . . . . . . . . . . . . . . . 7
2.25 "Plan Year". . . . . . . . . . . . . . . . . . . . . 7
2.26 "Self-Employed Individual" . . . . . . . . . . . . . 7
2.27 "Sponsor". . . . . . . . . . . . . . . . . . . . . . 7
2.28 "Taxable Wage Base". . . . . . . . . . . . . . . . . 7
2.29 "Trust". . . . . . . . . . . . . . . . . . . . . . . 7
2.30 "Trustee". . . . . . . . . . . . . . . . . . . . . . 7
2.31 "Valuation Date" . . . . . . . . . . . . . . . . . . 7
2.32 A "Year of Eligibility Service" . . . . . . . . . . 7
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2.33 A "Year of Vesting Service" . . . . . . . . . . . . 7
ARTICLE III MEMBERSHIP. . . . . . . . . . . . . . . . . . . 8
3.01 Satisfaction of Membership Requirements. . . . . . . 8
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3.02 Determination of Satisfaction of Membership
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Requirements by Plan Administrator . . . . . . . . . 8
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3.03 Duration of Membership . . . . . . . . . . . . . . . 8
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3.04 Leaves of Absence, etc.. . . . . . . . . . . . . . . 8
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3.05 Non-Discrimination . . . . . . . . . . . . . . . . . 8
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3.06 Additional Membership Requirements . . . . . . . . . 9
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3.07 Transfer from Eligible Class . . . . . . . . . . . . 9
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3.08 Transfer to Eligible Class . . . . . . . . . . . . . 9
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ARTICLE IV CONTRIBUTIONS TO THE TRUST. . . . . . . . . . . 9
A. FOR STANDARD PROFIT SHARING PLANS . . . . . . . . . . . . 9
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4.01A Contributions Held in Trust . . . . . . . . . . 9
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4.02A Employer Contributions. . . . . . . . . . . . . 9
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4.03A Determination of Contribution . . . . . . . . . 10
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4.04A Payment of Contribution . . . . . . . . . . . . 10
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4.05A Reversion of Certain Employer Contributions . . 10
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4.06A Members' Contributions. . . . . . . . . . . . . 10
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4.07A Rollover Contributions. . . . . . . . . . . . . 10
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B. FOR NON-STANDARD PROFIT SHARING SECTION 401(k) PLANS. . . 11
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4.01B Additional Definitions. . . . . . . . . . . . . 11
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4.02B Salary Adjustment Agreement . . . . . . . . . . 12
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4.03B Contributions Held in Trust . . . . . . . . . . 13
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4.04B Elective Deferrals. . . . . . . . . . . . . . . 13
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4.05B Employee Contributions. . . . . . . . . . . . . 14
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4.06B Matching Contributions. . . . . . . . . . . . . 14
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4.07B Employer Contributions. . . . . . . . . . . . . 14
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4.08B Determination of Contributions. . . . . . . . . 15
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4.09B Payment of Contributions. . . . . . . . . . . . 15
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4.10B Reversion of Certain Employer Contributions . . 15
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4.11B Rollover Contributions. . . . . . . . . . . . . 16
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ARTICLE V MEMBERS' ACCOUNTS; ALLOCATION OF ASSETS AND
CONTRIBUTIONS. . . . . . . . . . . . . . . . . . . . 16
A. FOR STANDARD PROFIT SHARING PLANS . . . . . . . . . . . . 16
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5.01A Members' Accounts . . . . . . . . . . . . . . . 16
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5.02A Delivery of Schedules . . . . . . . . . . . . . 17
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5.03A Election of Investments . . . . . . . . . . . . 17
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5.04A Allocation of Trust Assets. . . . . . . . . . . 18
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5.05A Valuation of Trust. . . . . . . . . . . . . . . 20
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5.06A Distributions and Forfeitures . . . . . . . . . 20
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B. FOR NON-STANDARD PROFIT SHARING SECTION 401(k) PLANS. . . 20
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5.01B Members' Accounts . . . . . . . . . . . . . . . . . 20
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5.02B Allocation of Elective Deferrals. . . . . . . . . . 21
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5.03B Allocation of Employee Contributions. . . . . . . . 21
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5.04B Allocation of Matching Contributions. . . . . . . . 21
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5.05B Allocation of Employer Contribution . . . . . . . . 21
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5.06B Allocation of Rollover Contributions. . . . . . . . 23
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5.07B Allocation of Forfeitures . . . . . . . . . . . . . 23
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5.08B Election of Investments . . . . . . . . . . . . . . 23
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5.09B Allocation of Trust Assets. . . . . . . . . . . . . 24
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5.10B Valuation of Trust. . . . . . . . . . . . . . . . . 24
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5.11B Distributions and Forfeitures . . . . . . . . . . . 24
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ARTICLE VI FOR NON-STANDARD PROFIT SHARING SECTION 401(k)
PLANS - Limitations on Contributions and Allocations. . . 25
6.01 Maximum Amount of Elective Deferrals. . . . . . . . 25
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6.02 Limitation on Elective Deferrals. . . . . . . . . . 26
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6.03 Limitation on Employee Contributions and Matching
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Contributions . . . . . . . . . . . . . . . . . . 28
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6.04 Limitation on Distributions . . . . . . . . . . . . 32
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ARTICLE VII - PAYMENTS TO OR FOR THE ACCOUNTS OF MEMBERS OR
TERMINATED MEMBERS . . . . . . . . . . . . . . 32
7.01 Restrictions on Payments and Distributions. . . . . 32
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7.02 Retirement Benefits . . . . . . . . . . . . . . . . 32
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7.03 Disability Benefits . . . . . . . . . . . . . . . . 33
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7.04 Death Benefits. . . . . . . . . . . . . . . . . . . 33
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7.05 Termination of Employment Prior to Retirement or
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Death . . . . . . . . . . . . . . . . . . . . . . 36
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7.06 Withdrawals . . . . . . . . . . . . . . . . . . . . 38
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7.07 Methods and Timing of Payment . . . . . . . . . . . 41
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7.08 Distribution Requirements . . . . . . . . . . . . . 45
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7.09 Discharge of Trustee's Obligation to Make Payments. 51
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7.10 Loans to Members. . . . . . . . . . . . . . . . . . 51
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ARTICLE VIII - AMENDMENT AND TERMINATION OF PLAN . . . . . . . 53
8.01 Amendment by Sponsor. . . . . . . . . . . . . . . . 53
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8.02 Amendment by Employer . . . . . . . . . . . . . . . 53
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8.03 Limitations on Vesting Amendments . . . . . . . . . 54
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8.04 Termination of Plan . . . . . . . . . . . . . . . . 55
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8.05 Merger or Consolidation . . . . . . . . . . . . . . 55
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8.06 Transfer From Other Plans . . . . . . . . . . . . . 55
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8.07 Termination of Trust. . . . . . . . . . . . . . . . 56
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ARTICLE IX PLAN ADMINISTRATION . . . . . . . . . . . . . . . . 56
9.01 Plan Administrator. . . . . . . . . . . . . . . . . 56
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9.02 Powers of Plan Administrator. . . . . . . . . . . . 56
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9.03 Action by Plan Administrator. . . . . . . . . . . . 56
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9.04 Discretionary Action. . . . . . . . . . . . . . . . 56
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9.05 Employment of Agents. . . . . . . . . . . . . . . . 57
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9.06 Indemnification of Plan Administrator . . . . . . . 57
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9.07 Claims Procedure. . . . . . . . . . . . . . . . . . 57
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ARTICLE X ESTABLISHMENT OF TRUST AND RIGHTS AND DUTIES OF
TRUSTEE . . . . . . . . . . . . . . . . . . . . . 58
10.01 Establishment of Trust. . . . . . . . . . . . . . . 58
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10.02 Powers of Trustee . . . . . . . . . . . . . . . . . 58
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10.03 Investments . . . . . . . . . . . . . . . . . . . . 58
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10.04 Method of Holding and Selling Securities. . . . . . 59
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10.05 Exercise of Voting Rights . . . . . . . . . . . . . 59
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10.06 Power to Borrow . . . . . . . . . . . . . . . . . . 59
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10.07 Reliance on Trustee as Owners . . . . . . . . . . . 59
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10.08 Liquidation of Assets . . . . . . . . . . . . . . . 59
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10.09 Evidence on Which Trustee May Act . . . . . . . . . 59
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10.10 Action by Individual Trustees . . . . . . . . . . . 60
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10.11 Records and Accounting. . . . . . . . . . . . . . . 60
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10.12 Payment of Taxes. . . . . . . . . . . . . . . . . . 60
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10.13 Compensation and Expenses . . . . . . . . . . . . . 61
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10.14 Resignation or Removal of Trustee . . . . . . . . . 61
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10.15 Indemnification of Trustee. . . . . . . . . . . . . 61
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10.16 Successor to Institutional Trustee. . . . . . . . . 61
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10.17 Responsibilities of Trustee . . . . . . . . . . . . 62
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10.18 Allocation and Delegation of Responsibilities . . . 62
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10.19 Investment Manager. . . . . . . . . . . . . . . . . 62
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ARTICLE XI THE EMPLOYER. . . . . . . . . . . . . . . . . . . . 63
11.01 No Contract of Employment . . . . . . . . . . . . . 63
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11.02 No Contract to Maintain Plan. . . . . . . . . . . . 63
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11.03 Liability of an Employer. . . . . . . . . . . . . . 63
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11.04 Action by an Employer . . . . . . . . . . . . . . . 63
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11.05 Successor to Business of an Employer. . . . . . . . 64
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11.06 Dissolution of the Employer . . . . . . . . . . . . 64
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11.07 Plan Covering Owner-Employee. . . . . . . . . . . . 64
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ARTICLE XII LIMITATION ON ALLOCATIONS . . . . . . . . . . . 65
12.01 . . . . . . . . . . . . . . . . . . . . . . . . . . 65
12.02 . . . . . . . . . . . . . . . . . . . . . . . . . . 66
12.03 . . . . . . . . . . . . . . . . . . . . . . . . . . 68
12.04 . . . . . . . . . . . . . . . . . . . . . . . . . . 68
12.05 . . . . . . . . . . . . . . . . . . . . . . . . . . 68
12.06 . . . . . . . . . . . . . . . . . . . . . . . . . . 71
ARTICLE XIII MISCELLANEOUS . . . . . . . . . . . . . . . . . 71
13.01 Spendthrift Provision . . . . . . . . . . . . . . . 71
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13.02 Notices . . . . . . . . . . . . . . . . . . . . . . 72
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13.03 Construction. . . . . . . . . . . . . . . . . . . . 72
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13.04 Impossibility of Performance. . . . . . . . . . . . 72
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13.05 Definition of Words . . . . . . . . . . . . . . . . 72
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13.06 Titles. . . . . . . . . . . . . . . . . . . . . . . 72
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13.07 Conflict with Plan Provisions . . . . . . . . . . . 72
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ARTICLE XIV TOP HEAVY PLANS . . . . . . . . . . . . . . . . 72
14.01 Application of Article. . . . . . . . . . . . . . . 72
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14.02 Definitions . . . . . . . . . . . . . . . . . . . . 73
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14.03 Determination of Top-Heavy Status . . . . . . . . . 75
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14.04 Provisions Applicable When Plan is Not Top-Heavy. . 75
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14.05 Provisions Applicable When Plan is Top-Heavy. . . . 75
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ARTICLE XV LIFE INSURANCE. . . . . . . . . . . . . . . . . . . 77
15.01 Application of Article. . . . . . . . . . . . . . . 77
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15.02 Definitions . . . . . . . . . . . . . . . . . . . . 77
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15.03 Valuation of Trust. . . . . . . . . . . . . . . . . 77
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15.04 Purchase of Insurance . . . . . . . . . . . . . . . 77
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ARTICLE XVI DIRECT ROLLOVERS. . . . . . . . . . . . . . . . 78
16.01 Application of this Article . . . . . . . . . . . . 78
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16.02 Definitions . . . . . . . . . . . . . . . . . . . . 79
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GOODWIN, PROCTER & HOAR REGIONAL PROTOTYPE
DEFINED CONTRIBUTION BASIC PLAN DOCUMENT
ARTICLE I
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Purpose; Internal Revenue Service Approval
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1.01 Purpose. The Employer and the Trustee have adopted the Plan and Trust,
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consisting of this Basic Plan Document and the Adoption Agreement executed by
the Employer and the Trustee, for the purpose of prescribing uniform terms and
conditions under which retirement and other benefits are to be provided from the
Trust Fund to the Employer's Employees. It is intended that the Plan and Trust
shall qualify as an employees' retirement trust within the meaning of Section
401(a) of the Internal Revenue Code of 1986, as amended (the "Code"), and shall
comply with all applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"). So far as possible, the Plan should be
interpreted in a manner consistent with this intent. Except as provided in
Sections 1.03, 4.05A, 4.10B, 6.02 and 6.03 of the Plan, under no circumstances
shall any part of the corpus or income of the Trust, other than such part as may
be required to pay taxes, if any, or administrative expenses of the Plan or
Trust, be used for or diverted to purposes other than for the exclusive benefit
of the Members or their Beneficiaries.
1.02 Internal Revenue Service Approval. Any Employer who adopts only a
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plan established under a Standard Adoption Agreement and Basic Plan Document
No. 01, and who does not and has not in the past maintained any other plan
(including a welfare benefit fund, as defined in Section 419(e) of the Code,
which provides post-retirement medical benefits allocated to separate accounts
for key employees, as defined in Section 419A(d)(3) of the Code, or an
individual medical account, as defined in Section 415(l)(2) of the Code), may
rely on the letter received by the Sponsor from the Internal Revenue Service
determining that the text of the Plan satisfies the requirements of Section
401(a) of the Code and that the text of the Trust satisfies the requirements of
Section 501(a) of the Code. Any other Employer should apply to the Internal
Revenue Service, as soon as reasonably practicable after the Plan is
established, for a determination that the Plan and Trust meet the aforesaid
requirements.
1.03 Qualification. If the Plan fails to attain or retain qualification
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under Sections 401(a) and 501(a) of the Code, the Plan will no longer
participate in this prototype plan and will be considered an individually
designed plan.
Contributions by the Employer to the Trust are conditioned upon the Trust's
initial qualification. In the event that the Commissioner of Internal Revenue
determines that the Plan is not initially qualified under the Code, any
contribution made incident to that initial qualification by the Employer must be
returned to the Employer within one year after the date the initial
qualification is denied, but only if the application for the qualification is
made by the time prescribed by law for filing the Employer's return for the
taxable year in which the Plan is adopted, or such later date as the Secretary
of the Treasury may prescribe.
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ARTICLE II
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Definitions
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Wherever used herein, unless the context clearly indicates otherwise, the
following words shall have the following meanings:
2.01 "Account" means any of the accounts established for a Member in
accordance with Section 5.01A or Section 5.01B, whichever is applicable.
2.02 "Adoption Agreement" means a trust agreement between the Employer and
the Trustee, which incorporates the Basic Plan Document as a part thereof.
2.03 "Anniversary Date" of a Plan means the last day of its Plan Year.
2.04 "Annuity Starting Date" means the first day of the first period for
which an amount is paid as an annuity or any other form.
2.05 "Basic Plan Document" means the "GOODWIN, PROCTER & HOAR REGIONAL
PROTOTYPE DEFINED CONTRIBUTION BASIC PLAN DOCUMENT" as set forth herein or as
the same may be amended from time to time.
2.06 "Beneficiary" means the person or persons designated pursuant to the
provisions of Section 7.04, to receive distributions of such Member's account or
accounts upon his death.
2.07 "Compensation" means either Compensation (as defined in Section
12.05(c)) or W-2 earnings, as elected by the Employer in the Adoption Agreement.
For any Self-Employed Individual covered under the Plan, Compensation means
Earned Income. Compensation shall include only that amount which is actually
paid to the Member during the applicable period. Except as provided elsewhere
herein, the applicable period shall be the Plan Year unless a different period
is elected by the Employer in the Adoption Agreement.
Notwithstanding the foregoing, if elected by the Employer in the Adoption
Agreement, Compensation shall include any amount which is contributed by the
Employer pursuant to a salary reduction agreement and which is not includible in
the gross income of the Employee under Section 125, 402(a)(8), 402(h) or 403(b)
of the Code. If elected by the Employer in the Adoption Agreement, Compensation
shall exclude any amount paid before the Member becomes eligible to participate
in the Plan.
For each Plan Year, the annual Compensation of each Member taken into
account under the Plan for all purposes for any year shall not exceed $200,000,
as adjusted by the Secretary at the same time and in the same manner as under
Section 415(d) of the Code. In determining the Compensation of a Member for
purposes of this limitation, the rules of Section 414(q)(6) of the Code shall
apply, except in applying such rules, the term "family"
2
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shall include only the spouse of the Member and any lineal descendants of the
Member who have not attained age 19 before the close of the year. If, as a
result of the application of such rules the adjusted $200,000 limitation is
exceeded, then (except for purposes of determining Compensation not in excess of
Excess Compensation), the limitation shall be prorated among the affected
individuals in proportion to each such individual's Compensation as determined
under this Section prior to the application of this limitation.
In addition to other applicable limitations set forth in the Plan, and
notwithstanding any other provision of the Plan to the contrary, for Plan Years
beginning on or after January 1, 1994, the annual Compensation of each employee
taken into account under the Plan shall not exceed the OBRA '93 annual
compensation limit. The OBRA '93 annual compensation limit is $150,000, as
adjusted by the Commissioner for increases in the cost of living in accordance
with Section 401(a)(17)(B) of the Code. The cost-of-living adjustment in effect
for a calendar year applies to any period, not exceeding 12 months, beginning in
such calendar year over which compensation is determined (determination period).
If a determination period consists of fewer than 12 months, the OBRA '93 annual
compensation limit will be multiplied by a fraction, the numerator of which is
the number of months in the determination period, and the denominator of which
is 12.
For Plan Years beginning on or after January 1, 1994, any reference in this
Plan to the limitation under Section 401(a)(17) of the Code shall mean the OBRA
'93 annual compensation limit set forth in this provision.
2.08 "Disability" means a Member's inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment that can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than twelve (12) months.
The permanence and degree of such impairment shall be supported by medical
evidence.
2.09 "Earned Income" of a Self-Employed Individual means the net earnings
from self-employment in the Employer's trade or business, for which personal
services of the Self-Employed Individual are a material income-producing factor,
determined without regard to items not included in gross income and the
deductions allocable to such items. In determining Earned Income, such net
earnings are reduced by contributions by the Employer to a qualified plan to the
extent deductible under Section 404 of the Code.
Notwithstanding the foregoing, if the Employer elects in the Adoption
Agreement to include salary reduction amounts in the definition of Compensation,
then contributions made pursuant to a salary reduction agreement which are not
includible in the gross income of the Self-Employed Individual under 402(a)(8)
or 402(h) of the Code shall not be reduced from Earned Income.
Net earnings shall be determined with regard to the deduction allowed to
the Employer by Section 164(f) of the Code for taxable years beginning after
December 31, 1989.
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For each Plan Year, the annual Earned Income of each Member taken into
account under the Plan for any year shall not exceed $200,000, as adjusted by
the Secretary at the same time and in the same manner as under Section 415(d) of
the Code.
In addition to other applicable limitations set forth in the Plan, and
notwithstanding any other provision of the Plan to the contrary, for Plan Years
beginning on or after January 1, 1994, the annual Earned Income of each employee
taken into account under the Plan shall not exceed the OBRA '93 annual
compensation limit. The OBRA '93 annual compensation limit is $150,000, as
adjusted by the Commissioner for increases in the cost of living in accordance
with Section 401(a)(17)(B) of the Code. The cost-of-living adjustment in effect
for a calendar year applies to any period, not exceeding 12 months, beginning in
such calendar year over which compensation is determined (determination period).
If a determination period consists of fewer than 12 months, the OBRA '93 annual
compensation limit will be multiplied by a fraction, the numerator of which is
the number of months in the determination period, and the denominator of which
is 12.
For Plan Years beginning on or after January 1, 1994, any reference in this
Plan to the limitation under Section 401(a)(17) of the Code shall mean the OBRA
'93 annual compensation limit set forth in this provision.
2.10 "Effective Date" means the first day of the first Plan Year commencing
after December 31, 1988, or the date on which the Plan or the amendment,
whichever is applicable, becomes effective as specified in the applicable
Adoption Agreement, whichever is later.
2.11 "Employee" means any person who is employed by the Employer or any
Related Employer, including a Self-Employed Individual. An Employee's employment
shall be deemed to have commenced on the date on which he first performs an Hour
of Service as an Employee.
Any leased employee shall be treated as an Employee and contributions or
benefits provided by the leasing organization which are attributable to services
performed for the Employer or any Related Employer shall be treated as provided
by the Employer. Notwithstanding the foregoing, if such leased employees
constitute less than twenty percent (20%) of the Employer's nonhighly
compensated workforce within the meaning of Section 414(n)(5)(C)(ii) of the
Code, the preceding sentence shall not apply to any leased employee if such
employee is covered by a money purchase pension plan providing: (1) a
non-integrated employer contribution rate of at least ten percent (10%) of
compensation (as defined in Section 415(c)(3) of the Code, but including amounts
contributed pursuant to a salary reduction agreement which are excludable from
the employee's gross income under Sections 125, 402(a)(8), 402(h) or 403(b) of
the Code), (2) immediate participation, and (3) full and immediate vesting. For
purposes of this paragraph, the term "leased employee" means any person (other
than an employee of the Employer) who pursuant to an agreement between the
Employer and any other person ("leasing organization") has performed services
for the Employer (or for the Employer and/or related persons determined in
accordance with Section
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414(n)(6) of the Code) on a substantially full-time
basis for a period of at least one year and such services are of a type
historically performed by employees in the business field of the Employer.
2.12 "Employer" means a self-employed individual, sole proprietor,
partnership, trust, or corporation identified as the Employer in the Adoption
Agreement or any successor to all or a major portion of its business which
pursuant to Section 11.05 adopts the Plan. "Related Employer" means (a) a
corporation which, together with the Employer, is a member of a controlled group
of corporations (as defined in Section 414(b) of the Code), (b) a trade or
business (whether or not incorporated) which is under common control (as defined
in Section 414(c) of the Code) with the Employer, (c) a corporation, a
partnership or other entity which, together with the Employer, is a member of an
affiliated service group (as defined in Section 414(m) of the Code), or (d) any
other entity required to be aggregated with the Employer pursuant to regulations
under Section 414(o) of the Code. When used in this Basic Plan Document, the
terms "an Employer" or "any Employer" refer to the Employer and all Related
Employers.
2.13 "Entry Date" means (a) the first day of the Plan Year and (b) the
first day of the seventh month of the Plan Year, or such other date or dates as
may be specified in the Adoption Agreement.
2.14 "Excess Compensation" means the Member's Compensation in excess of the
Taxable Wage Base.
2.15 "Fiscal Year" of an Employer means a twelve consecutive month period
which is the fiscal year of the Employer as specified in its Adoption Agreement.
2.16 An "Hour of Service" means:
(a) Each hour for which an Employee is paid, or entitled to payment,
for the performance of duties for an Employer or a Related Employer. These hours
shall be credited to the Employee for the computation period in which the duties
are performed;
(b) Each hour for which an Employee is paid, or entitled to payment
by an Employer or a Related 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. No more than
501 Hours of Service will be credited under this paragraph for any single
continuous period (whether or not such period occurs in a single computation
period). Hours under this paragraph shall be calculated and credited pursuant to
Section 2530.200b-2(b) and (c) of the Department of Labor Regulations which are
incorporated herein by this reference;
(c) Each hour for which an Employee would have been credited with an
Hour of Service but for his absence from work by reason of pregnancy, birth or
adoption of
5
<PAGE>
his child, or for purposes of caring for such child during a period
beginning immediately following such birth or adoption. No more than 501 Hours
of Service will be credited under this paragraph for any single continuous
period. Such Hours shall be credited in the computation period during which such
absence begins if such credit is necessary to avoid a One-Year Break in Service
for such year; otherwise, such Hours shall be credited in the immediately
following computation period;
(d) Each hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by an Employer. The same Hours of
Service shall not be credited both under paragraph (a), (b) or (c), as the case
may be, and under this paragraph (d). These hours shall be credited to the
Employee for the computation period to which the award or agreement pertains
rather than the computation period in which the award, agreement or payment is
made;
(e) Each hour (other than those credited under Paragraphs (a), (b),
(c), or (d)) for which an Employee is credited pursuant to Section 3.04 of the
Plan; and
(f) Where the Employer maintains the plan of a predecessor employer
or if a predecessor employer has been designated as such in the Adoption
Agreement, Hours of Service for such predecessor employer shall be treated as
Hours of Service for the Employer. If such predecessor employer was not a
corporation, Hours of Service as an Employee, a sole proprietor or partner of
such predecessor employer shall be treated as Hours of Service for the Employer.
2.17 "Member" means any Employee entitled to participate in the Plan as
determined under Article III.
2.18 "Net Profits" of an Employer means the current and accumulated
earnings as shown by the Employer's books before deducting Federal and state
taxes measured in part or in whole by income and before deducting the
contribution to the Trust and any other qualified plan.
2.19 "Normal Retirement Age" for any Employee means the age set forth in
the Adoption Agreement.
2.20 "One-Year Break in Service" means, with respect to any Employee, a
twelve consecutive month computation period (as specified in the Adoption
Agreement for determining an Employee's Years of Vesting Service) during which
such Employee has not completed more than one-half of the number of Hours of
Service required for a Year of Vesting Service.
2.21 "Owner-Employee" means an individual who is a sole proprietor of an
Employer or who is a partner owning more than ten percent (10%) of either the
capital or profits interest of a partnership which is an Employer.
6
<PAGE>
2.22 "Permissible Investment" means the investments specified in the
Adoption Agreement as available for investment of assets of the Trust.
2.23 "Plan" means the plan established by the Employer under an Adoption
Agreement.
2.24 "Plan Administrator" means the administrator and named fiduciary of
the Plan as identified in Section 9.01.
2.25 "Plan Year" means the Fiscal Year, unless a different twelve
consecutive month period is specified in the Adoption Agreement.
2.26 "Self-Employed Individual" means an individual who has Earned Income
for the taxable year from an Employer, or an individual who would have had such
Earned Income but for the fact that the Employer had no Net Profits for the
taxable year.
2.27 "Sponsor" means Goodwin, Procter & Hoar, and any successor to all or a
major portion of its business.
2.28 "Taxable Wage Base" means the maximum amount of earnings which may be
considered wages for the calendar year containing the first day of the Plan
Year, under Section 3121(a)(1) of the Code.
2.29 "Trust" means the trust established under Article X and an Adoption
Agreement.
2.30 "Trustee" means the financial institution or person or persons who
have executed the Adoption Agreement as trustee or trustees or successor trustee
or trustees, appointed by the Employer and acting as trustee for the purposes of
the Plan.
2.31 "Valuation Date" means any date for revaluation of the Trust and
adjustments of the accounts held thereunder as determined in accordance with
Section 5.04A or Section 5.10B, whichever is applicable.
2.32 A "Year of Eligibility Service" for any Employee of an Employer means
each twelve consecutive month period beginning on the date the Employee first
performs an Hour of Service or any anniversary thereof, during which
twelve-month period he has at least the number of Hours of Service specified in
the Adoption Agreement.
2.33 A "Year of Vesting Service" for any Employee of an Employer means each
twelve consecutive month period during which the Employee is credited with at
least the number of Hours of Service specified in the Adoption Agreement, but
excluding periods of service with the Employer which the Employer specifically
elects to exclude in the Adoption Agreement. Unless otherwise specified in the
Adoption Agreement, the twelve consecutive month period shall be the Plan Year.
7
<PAGE>
ARTICLE III
-----------
Membership
----------
3.01 Satisfaction of Membership Requirements. Each Employee of an Employer
---------------------------------------
who on the Effective Date meets the membership requirements specified in Section
3.06 and in the Adoption Agreement shall become or continue to be a Member on
the Effective Date. Each other Employee of an Employer, including each future
Employee, who meets such membership requirements after the Effective Date shall
become a Member on the later of the date he becomes an Employee and the Entry
Date coincident with or next following the date he meets such membership
requirements.
3.02 Determination of Satisfaction of Membership Requirements by Plan
----------------------------------------------------------------
Administrator. The determination of the membership of an Employee of an
- -------------
Employer shall be made by the Plan Administrator from the Employer's records.
3.03 Duration of Membership. A Member shall cease membership for all
----------------------
purposes of the Plan when he no longer satisfies the membership requirements and
is not eligible and will not become eligible to receive any further benefits
from the Plan on account of his prior employment. A former Member shall again
become a Member when he again becomes an Employee who satisfies the membership
requirements.
3.04 Leaves of Absence, etc. In the case of an Employee who, without pay,
----------------------
leaves an Employer to enter the armed services of the United States of America
and who returns to its employ at or before the expiration of ninety (90) days
after the date on which he is first entitled to be released from active duty in
the armed services (or at such later date as the Employer may approve or as may
be required by law) or in the case of an Employee who is absent from work, with
the approval of an Employer and without pay, by reason of vacation, sickness,
disability, temporary lay-off, jury duty, or leave of absence for other similar
reasons, the Employer shall credit such Employee for such period of absence with
the number of Hours of Service determined by multiplying the number of Hours of
Service in such Employee's last full regular work week immediately preceding
such absence by the duration (in weeks) of such absence. For purposes of
granting leaves of absence, Employees in similar circumstances shall be treated
alike by an Employer in accordance with the standards set forth in Section 9.04.
Nothing herein contained shall restrain an Employer's right to terminate the
employment of any Employee, whether or not during a leave of absence.
3.05 Non-Discrimination. In no event may the membership requirements under
------------------
the Plan be more favorable for Highly Compensated Employees (as defined in
Section 414(q) of the Code) than for other Employees.
8
<PAGE>
3.06 Additional Membership Requirements. An Employee employed in the
----------------------------------
ineligible categories described in paragraphs (a) and (b) below will not be
eligible to become a Member in the Plan:
(a) Employees who are nonresident aliens and who receive no
compensation from the Employer, which constitutes income from sources within the
United States.
(b) If the Adoption Agreement provides that Employees covered by a
collective bargaining agreement which does not include this Plan are excluded
from the Plan, then such exclusion shall be applicable only if retirement
benefits were the subject of good faith bargaining. If this paragraph (b) is
applicable, the term "collective bargaining representative" does not include any
organization more than half of whose members are employees who are owners,
officers, or executives of the Employer.
3.07 Transfer from Eligible Class. In the event a Member is no longer in an
----------------------------
eligible class of Employees, as defined in the Adoption Agreement and Section
3.06, such Member will cease to share in Employer contributions and forfeitures
under Section 5.04A(b) or Sections 5.05B and 5.07B, whichever is applicable, but
shall continue to be treated as an Employee for all other purposes under the
Plan. If such Member returns to an eligible class, such Member shall participate
immediately in the Plan upon returning to such eligible class.
3.08 Transfer to Eligible Class. In the event an Employee who is not a
--------------------------
member of an eligible class of employees, as defined in the Adoption Agreement
and Section 3.06, becomes a member of an eligible class, such Employee shall
become a Member immediately if such Employee has satisfied the otherwise
applicable membership requirements specified in the Adoption Agreement.
ARTICLE IV
----------
Contributions to the Trust
--------------------------
A. FOR STANDARD PROFIT SHARING PLANS
---------------------------------
4.01A Contributions Held in Trust. All contributions made hereunder are
---------------------------
to be held by the Trustee in the Trust in accordance with the provisions of
Article X, and are to be invested and reinvested as provided therein.
4.02A Employer Contributions. For each of its Fiscal Years, an Employer
----------------------
shall, subject to the restrictions set forth in Article XII, pay to the Trustee
from its Net Profits an amount determined in accordance with its Adoption
Agreement; provided, however, that an Employer's contribution paid to the
--------
Trustee for any Fiscal Year shall not exceed the maximum amount permitted as a
Federal income tax deduction for the Employer on account of such contribution
for such Fiscal Year.
9
<PAGE>
Notwithstanding the foregoing, if authorized by the applicable Adoption
Agreement, the Employer may make contributions to the Plan without regard to its
Net Profits. The Plan shall continue to be designed to qualify as a profit
sharing plan for purposes of Sections 401(a), 402, 412 and 417 of the Code.
4.03A Determination of Contribution. The amount of an Employer's
-----------------------------
contribution for each of its Fiscal Years shall be determined by the Employer in
accordance with the terms of this Plan and the applicable Adoption Agreement.
The amount of the contribution, as determined by the Employer, shall be
conclusive and binding on all persons.
4.04A Payment of Contribution. An Employer's contribution to its Trust for
-----------------------
each Fiscal Year of the Employer shall be made within the time required by law
in order to obtain a deduction of the amount of such payment for Federal income
tax purposes for such Fiscal Year, as determined under the applicable provisions
of the Code.
4.05A Reversion of Certain Employer Contributions. All contributions by an
-------------------------------------------
Employer hereunder shall be made upon the condition that such contributions are
fully deductible for Federal income tax purposes. In the event that any such
deduction is disallowed in whole or in part, then the Employer may direct the
Trustee to return such contribution (to the extent disallowed) to the Employer
at any time within the twelve (12) month period commencing on the date of
disallowance. In the event that an Employer shall make a contribution hereunder
on the basis of a mistake of fact, the Employer may direct the Trustee to return
such contribution to the Employer at any time within the twelve (12) month
period commencing on the date of contribution.
4.06A Members' Contributions. Effective with the Plan Year commencing after
----------------------
December 31, 1988, a Member may not make any contributions under the Plan. Any
nondeductible contributions made by Members to the Trust during the Plan Years
beginning after December 31, 1986 but before January 1, 1989 shall comply with
the requirements set forth in Section 401(m) of the Code and the regulations
promulgated thereafter.
4.07A Rollover Contributions. Notwithstanding anything to the contrary
----------------------
elsewhere herein, with the consent of the Plan Administrator, an Employee may
make and the Trustee shall accept contributions of all or any part of (i) any
amount received by such Employee from another plan and trust qualified as an
exempt employee benefit plan and trust under Sections 401(a) and 501(a) of the
Code, or (ii) any amount received by such Employee out of an individual
retirement account or individual retirement annuity which consists solely of
amounts attributable to a prior rollover contribution from a qualified employee
benefit plan which, but for such contribution to the Plan, would have been
taxable income to such Employee. An Employee may make a contribution under this
section whether or not he has satisfied the membership requirements with respect
to age and service specified in the Adoption Agreement. An Employee who makes a
contribution under this Section 4.07A and who does not otherwise qualify as a
Member is, nevertheless, deemed to be a Member for the limited purpose of
administering that contribution. Contributions under this Section 4.07A shall be
made in cash, check, or securities, provided that such securities are
10
<PAGE>
acceptable to the Trustee. All contributions under this Section 4.07A shall be
credited to a separate Rollover Account for such Employee which shall be fully
vested at all times. Rollover contributions pursuant to this Section 4.07A shall
not be deemed to be Member contributions for purposes of Article XII.
B. FOR NON-STANDARD PROFIT SHARING SECTION 401(k) PLANS
----------------------------------------------------
4.01B Additional Definitions
----------------------
(a) "Elective Deferrals" means the contributions made to the Plan by
the Employer pursuant to Section 4.04B of the Plan on behalf of a Member who has
entered into a Salary Adjustment Agreement with the Employer.
(b) "Employee Contributions" means the contributions made to the Plan
by Members pursuant to Section 4.05B of the Plan.
(c) "Employer Contribution" means the contributions made by the
Employer for the Members pursuant to Section 4.07B of the Plan.
(d) "Family Member" includes the spouse, lineal ascendants and
descendants of an Employee or former Employee and the spouses of such lineal
ascendants and descendants.
(e) "Highly Compensated Employees" means either a highly compensated
active employee or a highly compensated former employee.
A highly compensated active employee includes any Employee who performs
service for the Employer during the determination year and who, during the
look-back year: (i) received Compensation from the Employer in excess of $75,000
(as adjusted pursuant to Section 415(d) of the Code; (ii) received Compensation
from the Employer in excess of $50,000 (as adjusted pursuant to Section 415(d)
of the Code) and was a member of the top-paid group for such year; or (iii) was
an officer of the Employer and received Compensation during such year that is
greater than 50 percent of the dollar limitation in effect under Section
415(b)(1)(A) of the Code. The term Highly Compensated Employee also include: (i)
Employees who are both described in the preceding sentence if the term
"determination year" is substituted for the term "look-back year" and the
Employee is one of the one hundred (100) Employees who received the most
Compensation from the Employer during the determination year; and (ii) Employees
who are 5-percent owners at any time during the look-back year or determination
year.
If no officer has satisfied the compensation requirement of (iii) above
during either a determination year or look-back year, the highest paid officer
for such year shall be treated as a Highly Compensated Employee.
11
<PAGE>
For this purpose, the determination year shall be the Plan Year. The
look-back year shall be the twelve-month period immediately preceding the
determination year.
A highly compensated former employee includes any Employee who separated
from service (or was deemed to have separated) prior to the determination year,
performs no service for the employer during the determination year, and was a
highly compensated active employee for either the separation year or any
determination year ending on or after the Employee's 55th birthday.
If an Employee is, during a determination year or look-back year, a Family
Member of either a 5-percent owner who is an active or former Employee or a
Highly Compensated Employee who is one of the ten (10) most Highly Compensated
Employees ranked on the basis of Compensation paid by the Employer during such
year, then the Family Member and the 5-percent owner or top-ten Highly
Compensated Employee shall be aggregated. In such case, the Family Member and
5-percent owner or top-ten Highly Compensated Employee shall be treated as a
single Employee receiving Compensation and plan contributions or benefits equal
to the sum of such Compensation and contributions or benefits of the Family
Member and 5-percent owner or top-ten Highly Compensated Employee.
The determination of who is a Highly Compensated Employee, including the
determinations of the number and identity of Employees in the top-paid group,
the top one hundred (100) Employees, the number of Employees treated as officers
and the Compensation that is considered, will be made in accordance with Section
414(q) of the Code and the regulations thereunder.
(f) "Matching Contributions" means the contributions made by the
Employer pursuant to Section 4.06B of the Plan on behalf of a Member on account
of an Employee Contribution made by such Member, or on account of a Member's
Elective Deferral under this Plan.
(g) "Non-highly Compensated Employee" means any Employee entitled to
participate in the Plan as determined under Article III who is not a Highly
Compensated Employee.
(h) "Salary Adjustment Agreement" means the agreement described in
Section 4.02B and entered into between a Member and the Employer.
4.02B Salary Adjustment Agreement. If an Employer has specified in its
---------------------------
Adoption Agreement that Elective Deferrals may be made to the Trust, each Member
may, but shall not be required to, enter into a Salary Adjustment Agreement with
the Employer under which the Member agrees to reduce his Compensation by a
specified percent or a fixed-dollar amount and the Employer agrees to contribute
such amount on the Member's behalf to the Trust. The terms of such Salary
Adjustment Agreement shall:
12
<PAGE>
(a) specify the percentage or fixed-dollar amount of such Member's
Compensation to be paid by the Employer on the Member's behalf each pay period
to the Trust;
(b) provide that the Plan Administrator may reduce the percentage or
amount in (a) if necessary to assure that the applicable limitations on
contributions and allocations set forth in Articles VI and XII are satisfied for
each Plan Year;
(c) specify the date as of which the Salary Adjustment Agreement
becomes effective, which date shall be the first day of a future pay period; and
(d) set forth such other or additional information as in the opinion
of the Plan Administrator is desirable or necessary for the operation of the
Plan.
An Employee who is a Member on the Effective Date may enter into a
Salary Adjustment Agreement with the Employer at least fifteen (15) days (or
such shorter period as the Plan Administrator allows) prior to the Effective
Date, such Salary Adjustment Agreement to be effective as of the first payroll
period commencing after said date. In the case of any other Employee becoming a
Member for the first time or in the case of a former Employee becoming a Member
upon reemployment, (i) the Plan Administrator shall notify such Employee of his
eligibility to enter into a Salary Adjustment Agreement in advance of the date
on which such Employee becomes a Member and shall forward to such individual a
Salary Adjustment Agreement; and (ii) salary reduction shall commence on behalf
of such Employee with the first pay period commencing after he becomes a Member
if such Employee enters into the Salary Adjustment Agreement with the Employer
at least fifteen (15) days (or such shorter period as the Plan Administrator
allows) prior to the date he becomes a Plan Member. In all cases, the initiative
for applying for salary reduction rests with the individual Employee.
4.03B Contributions Held in Trust. All contributions made hereunder are
---------------------------
to be held by the Trustee in the Trust in accordance with the provisions of
Article X, and are to be invested and reinvested as provided therein.
4.04B Elective Deferrals. Subject to the provisions of Articles VI and XII,
------------------
for each pay period, the Employer shall contribute to the Trust on behalf of
each Member an amount equal to the percentage or fixed-dollar amount of such
Member's Compensation specified in the Salary Adjustment Agreement between the
Employer and such Member. Each Member may elect to increase or decrease the
amount or percentage rate of such Member's salary adjustment only as of the
first day of any future payroll period. Each Member may elect to suspend
completely his salary adjustment as of the first day of any future payroll
period. Each such change or suspension shall be made by written notice filed
with the Plan Administrator at least fifteen (15) days (or such shorter period
as the Plan Administrator allows) prior thereto. No change in or suspension of
the amount or percentage rate of the Member's salary adjustment shall be made at
any other time by the Member and the salary adjustment amount or percentage rate
in force at any time shall continue in force unless and
13
<PAGE>
until changed in accordance with the provisions of the preceding sentences. All
Elective Deferrals under this Section 4.04B shall be recorded in a separate
Elective Deferral Account and shall be fully vested at all times.
4.05B Employee Contributions. If an Employer has specified in its Adoption
----------------------
Agreement that its Employees who are Members may contribute to the Trust, then,
subject to the provisions of Articles VI and XII, each such Member may, but
shall not be required to, contribute to the Trust such amounts in cash as he may
choose. Such amounts shall be nondeductible contributions. Employee
Contributions for each Plan Year may be made by payroll deduction or otherwise,
as permitted by the Employer and the Plan Administrator, and must be made at
such time or times as the Employer shall determine. Each Member may elect to
increase or decrease the amount or percentage rate of his Employee Contributions
only as of the first day of any future payroll period. Each Member may elect to
suspend completely his Employee Contributions as of the first day of any future
payroll period. Each such change or suspension shall be made by written notice
filed with the Plan Administrator at least fifteen (15) days (or such shorter
period as the Plan Administrator allows) prior thereto. No change in or
suspension of the amount or percentage rate of the Member's Employee
Contributions shall be made at any other time by the Member and the amount or
percentage rate of Employee Contributions in force at any time shall continue in
force unless and until changed in accordance with the preceding sentences. All
contributions under this Section 4.05B shall be recorded in a separate Employee
Account and shall be fully vested at all times.
4.06B Matching Contributions. If an Employer has specified in its Adoption
----------------------
Agreement that Matching Contributions will be made to the Trust, then for each
of its Fiscal Years, the Employer shall, subject to the restrictions set forth
in Article XII, pay to the Trustee from its Net Profits an amount determined in
accordance with its Adoption Agreement; provided, however, that the Matching
--------
Contribution paid to the Trustee for any Fiscal Year shall not exceed the
maximum amount permitted as a Federal income tax deduction for the Employer on
account of such contribution for such Fiscal Year. If the foregoing Matching
Contributions are subject to full and immediate vesting and may not be withdrawn
during active employment prior to age 59-1/2, they would be referred to as
Qualified Matching Contributions from time to time.
Notwithstanding the foregoing, if authorized by the applicable Adoption
Agreement, the Employer may make Matching Contributions to the Trust without
regard to its Net Profits. The Plan shall continue to be designed to qualify as
a profit sharing plan for purposes of Sections 401(a), 402, 412 and 417 of the
Code.
4.07B Employer Contributions.
----------------------
(a) For each of its Fiscal Years, an Employer shall, subject to the
restrictions set forth in Article XII, pay to the Trustee from its Net Profits
an amount determined in accordance with its Adoption Agreement; provided,
however, that the Employer Contribution paid to the Trustee for any Fiscal Year
shall not exceed the maximum
14
<PAGE>
amount permitted as a Federal income tax deduction for the Employer on account
of such contribution for such Fiscal Year.
If the foregoing Employer Contributions are subject to full and
immediate vesting and may not be withdrawn during active employment prior to age
59-1/2, they would be referred to as Qualified Non-elective Contributions from
time to time.
(b) If an Employer has specified in its Adoption Agreement that
Qualified Non-Elective Contributions will be made to the Trust, then in lieu of
distributing Excess Contributions as provided in Section 6.02 of the Plan, or
distributing or forfeiting Excess Aggregate Contributions as provided in Section
6.03 of the Plan, the Employer may make a specific Employer Contribution to the
Trust on behalf of Non-highly Compensated Employees in an amount sufficient to
enable the Plan to satisfy either the Average Deferral Percentage test or the
Average Contribution Percentage test, or both, pursuant to regulations under the
Code. Such Employer Contributions are subject to full and immediate vesting and
may not be withdrawn during active employment prior to age 59-1/2 and will be
referred to Qualified Non-elective Contributions from time to time.
(c) Notwithstanding the foregoing, if authorized by the applicable
Adoption Agreement, the Employer may make Employer Contributions to the Trust
without regard to its Net Profits. The Plan shall continue to be designed to
qualify as a profit sharing plan for purposes of Sections 401(a), 402, 412 and
417 of the Code.
4.08B Determination of Contributions. The amount of Employer Contributions
------------------------------
and Matching Contributions for each of its Fiscal Years shall be determined by
the Employer in accordance with the terms of this Plan and the applicable
Adoption Agreement. The amount of the contribution, as determined by the
Employer, shall be conclusive and binding on all persons.
4.09B Payment of Contributions. The Employer Contributions and Matching
------------------------
Contributions to the Trust for each Fiscal Year of the Employer shall be made
within the time required by law in order to obtain a deduction of the amount of
such payment for Federal income tax purposes for such Fiscal Year, as determined
under the applicable provisions of the Code. The Elective Deferrals and Employee
Contributions to the Trust for each calendar month shall be made no later than
thirty (30) days immediately following the calendar month to which such
contributions relate.
4.10B Reversion of Certain Employer Contributions. All contributions by an
-------------------------------------------
Employer hereunder shall be made upon the condition that such contributions are
fully deductible for Federal income tax purposes. In the event that any such
deduction is disallowed in whole or in part, then the Employer may direct the
Trustee to return such contribution (to the extent disallowed) to the Employer
at any time within the twelve (12) month period commencing on the date of
disallowance. In the event that an Employer shall make a contribution hereunder
on the basis of a mistake of fact, the Employer may direct the
15
<PAGE>
Trustee to return such contribution to the Employer at any time within the
twelve (12) month period commencing on the date of contribution.
4.11B Rollover Contributions. Notwithstanding anything to the contrary
----------------------
elsewhere herein, with the consent of the Plan Administrator, an Employee may
make and the Trustee shall accept contributions of all or any part of (a) any
amount received by such Employee from another plan and trust qualified as an
exempt employee benefit plan and trust under Sections 401(a) and 501(a) of the
Code, or (b) any amount received by such Employee out of an individual
retirement account or individual retirement annuity which consists solely of
amounts attributable to a prior rollover contribution from a qualified employee
benefit plan which, but for such contribution to the Plan, would have been
taxable income to such Employee. An Employee may make a contribution under this
section whether or not he has satisfied the membership requirements with respect
to age and service specified in the Adoption Agreement. An Employee who makes a
contribution under this Section 4.11B and does not otherwise qualify as a Member
is, nevertheless, deemed to be a Member for the limited purpose of administering
that contribution. Contributions under this Section 4.11B shall be made in cash,
check, or securities, provided that such securities are acceptable to the
Trustee. All contributions under this Section 4.11B shall be credited to a
separate Rollover Account for such Employee which shall be fully vested at all
times. Rollover contributions pursuant to this Section 4.11B shall not be deemed
to be Member contributions for purposes of Article XII.
ARTICLE V
---------
Members' Accounts; Allocation
of Assets and Contributions
---------------------------
A. FOR STANDARD PROFIT SHARING PLANS
---------------------------------
5.01A Members' Accounts. The Plan Administrator shall maintain an Employer
-----------------
Account for each Member and a Rollover Account for each Member who has
contributed to the Trust pursuant to Section 4.07A. Any rollover contributions
made by a Member as provided in Section 4.07A shall be credited to his Rollover
Account pursuant to Section 5.04A(c). Subject to the provisions of Article XI,
any contributions made by an Employer shall be allocated to the Employer
Accounts of Members pursuant to Section 5.04A(b). If a Member has previously
made deductible and/or nondeductible contributions to the Trust, the Plan
Administrator shall maintain a Deductible Account and/or Nondeductible Account
for each such Member to which the amounts attributable to such contributions
shall be credited. No part of the Deductible Account may be used to purchase
life insurance. All contributions credited to a Member's Rollover Account,
Deductible Account and Nondeductible Account shall be fully vested at all times.
16
<PAGE>
The Plan Administrator shall determine to which of the foregoing accounts
the amounts held in accounts maintained under a predecessor plan shall be
allocated, based on the nature of the contributions originally credited to such
predecessor plan accounts.
5.02A Delivery of Schedules. As soon as practicable after the end of each
---------------------
Plan Year, an Employer shall deliver to the Plan Administrator a schedule
prepared as follows:
(a) FOR PLANS NOT INTEGRATED WITH SOCIAL SECURITY
---------------------------------------------
If a non-integrated formula has been selected in Paragraph 6 of the
Adoption Agreement, the schedule shall show the name of each person who was a
Member during such Plan Year, and opposite the name of each such Member, the
amount of Compensation paid to him by the Employer during such Plan Year.
Notwithstanding the foregoing, if the Employer has selected Paragraph 6(D) in
its Adoption Agreement, the schedule shall only show the name of each Member who
meets the requirements specified in such Paragraph of the Adoption Agreement.
(b) FOR PLANS INTEGRATED WITH SOCIAL SECURITY
-----------------------------------------
If an integrated formula has been selected in Paragraph 6 of the
Adoption Agreement, the schedule shall show the name of each person who was a
Member during such Plan Year, and opposite the name of each such Member the
amount of Compensation and Excess Compensation, if any, paid to him by the
Employer during such Plan Year. Notwithstanding the foregoing, if the Employer
has selected Paragraph 6(D) in its Adoption Agreement, the schedule shall only
show the name of each Member who meets the requirements specified in such
Paragraph of the Adoption Agreement.
(c) At or before the time of any payment by an Employer of rollover
contributions pursuant to Section 4.07, the Employer shall deliver to the Plan
Administrator a schedule showing the name of each Member who made a contribution
hereunder and the amount of the Member's rollover contribution. The schedule
shall also contain each Member's investment election made pursuant to Section
5.03A of this Article, if applicable, and such other information as the Plan
Administrator may reasonably require for the proper administration of the Plan.
5.03A Election of Investments.
-----------------------
(a) If an Employer has specified in its Adoption Agreement that
Members may elect to direct the investment of their Accounts, each such Member
shall elect the manner of investment of all amounts which have been contributed
to the Trust by or on the behalf of such Member, and such amounts shall
thereupon be invested separately for the benefit of such Member; provided,
however, that the Member's investment direction shall be limited to Permissible
Investments, other than collectibles within the meaning of Section 408(m)(2) of
the Code. The assets which are invested at the direction of a Member shall be
segregated into separate accounts for such Member. The Plan Administrator shall
maintain
17
<PAGE>
records of account at all times adequately reflecting each Member's
interest in his separate accounts. Notwithstanding the foregoing, the Trustee
may invest on an interim basis amounts credited to the Accounts of a Member in
such short-term liquid Permissible Investments as are selected by the Trustee on
a uniform basis for such purpose.
(b) To make an investment election, each Member shall give written
notice to the Plan Administrator or his delegate, which notice shall be in such
form and given at such time as the Trustee may reasonably require. To be
effective, such an investment election must be in accordance with any and all
rules and regulations established by the Trustee for this purpose. Any
investment election made hereunder shall continue to be effective until properly
revoked by the Member. If at any time there shall be no investment election in
effect with respect to a Member's interest in all or any portion of his
accounts, or if there shall be an investment election which is, in the opinion
of the Trustee, unclear, the Plan Administrator shall specify a "default
election" to the Trustee, under which the Trustee shall invest such interest
without liability for loss of income or appreciation, pending receipt of proper
instructions or clarification.
(c) The Employer, the Plan Administrator, and the Trustee shall have
no responsibility for the investment elections of the Members and shall incur no
liability on account of investing the assets of the Trust in accordance with
such directions.
(d) Notwithstanding anything to the contrary elsewhere herein, the
Employer may, but is not required to, pay any expenses incurred as the result of
a Member's individual investment election. To the extent that the Employer does
not pay such expenses, they will be charged against the accounts of the Member
making the election as provided in Section 5.04A.
5.04A Allocation of Trust Assets. As of each Anniversary Date of the Trust
and as of any other date which the Plan Administrator in its discretion may
determine (any of which dates is herein referred to as a "Valuation Date"), the
Plan Administrator shall adjust the accounts of Members to reflect the total net
worth of the assets of the Trust. As of each Valuation Date which is an
Anniversary Date, the Plan Administrator shall allocate the assets of the Trust
in accordance with subsections (a), (b), and (c) below, and as of each other
Valuation Date in accordance with subsections (a) and (c) below only:
(a) Income, Appreciation, and Depreciation.
--------------------------------------
(i) PLANS THAT DO NOT PERMIT ELECTION OF
------------------------------------
INVESTMENTS BY MEMBERS -
----------------------
Except as otherwise provided in Section 7.10, the Plan
Administrator shall adjust all Accounts of Members to reflect income,
gains, losses, appreciation and depreciation of the Trust by allocating to
such accounts, in the proportion that each such account balance prior to
such adjustment bears to the total of all such account balances in the
Trust, an amount equal to the total net worth of the assets of
18
<PAGE>
the Trust determined as of such Valuation Date reduced by or disregarding
(A) the total of all rollover (and Member) contributions to the Trust since
the last Valuation Date, and (B) an amount equal to the total of all
Employer contributions and forfeitures with respect to the Plan Year which
is current or ended on such Valuation Date.
(ii) PLANS THAT DO PERMIT ELECTION OF INVESTMENTS
--------------------------------------------
BY MEMBERS -
----------
The Plan Administrator shall adjust the separate Accounts of each
Member to reflect income, gains, losses, appreciation and depreciation of
the assets of each such separate Account since the last Valuation Date.
(b) Allocation of Employer Contributions and Forfeitures.
----------------------------------------------------
(i) PLANS NOT INTEGRATED WITH SOCIAL SECURITY -
-----------------------------------------
If the allocation of Employer contributions is not integrated
with Social Security, the Plan Administrator shall, after making the
adjustments and credits required by subsection (a), and subject to the
limitations imposed by Article XII, credit to the Employer Account of each
Member listed on the schedule furnished by the Employer pursuant to Section
5.02A(a) that portion of the Employer contribution and forfeitures for such
Plan Year which bears the same ratio to the total amount of such
contribution and forfeitures as the Compensation shown for such Member on
the schedule furnished by the Employer pursuant to Section 5.02A(a) bears
to the total Compensation shown on said schedule for all such Members.
(ii) PLANS INTEGRATED WITH SOCIAL SECURITY -
-------------------------------------
If an integrated formula has been selected in Paragraph 6 of the
Adoption Agreement, after making the adjustments and credits required by
subsection (a), the Plan Administrator shall, subject to the limitations
imposed by Article XII, credit to the Employer Account of each Member
listed on the schedule furnished by the Employer pursuant to Section
5.02A(b) a portion of the Employer contribution and forfeitures for such
Plan Year on the following basis:
FIRST, an amount equal to X percent times the Member's
Compensation for such Plan Year; and
SECOND, the lesser of (i) an amount equal to X percent times the
Member's Excess Compensation for such Plan Year or (ii) an amount
representing the Member's pro rata share of the balance of the Employer
contributions and forfeitures, if any, when allocated to all Members in
proportion to their Excess Compensation for such Plan Year; and
19
<PAGE>
THIRD, an amount representing the Member's pro rata share of the
balance of the Employer contributions and forfeitures, if any, when
allocated to Members' Employer Accounts in proportion to their Compensation
for such Plan Year.
For purposes of the foregoing, the maximum value of X% shall be 5.7%.
In any Plan Year in which the Plan is top-heavy, the minimum value of X% shall
be 3%.
(c) Rollover Contributions. After making the adjustments and credits
----------------------
required by subsections (a) and (b), where applicable, the Plan Administrator
shall credit to the Rollover Account of each Member the amount of his rollover
contributions for such Plan Year as shown on the schedule furnished by the
Employer pursuant to Section 5.02A(c).
5.05A Valuation of Trust. As of each Valuation Date, the Trustee shall
------------------
determine and report to the Plan Administrator the net worth of the Trust, by
evaluating all of its assets and liabilities as of that date. In determining the
net worth of the Trust, the Trustee shall exclude any amounts segregated into
separate accounts held by the Trustee for Members who have borrowed from the
Trust pursuant to Section 7.10, if any, and shall value assets of the Trust at
their fair market value. In the case of assets with no readily ascertainable
fair market value, the Trustee shall determine the said value on any reasonable
basis it may deem appropriate. If Members can direct investment of their
accounts pursuant to Section 5.03A, the Trustee shall determine and report to
the Plan Administrator the net worth of each Member's separate account as of the
Valuation Date.
5.06A Distributions and Forfeitures. Whenever the Trustee shall make any
-----------------------------
distribution to or on behalf of a Member from any of his accounts in accordance
with the provisions of Article VII, the amount so distributed shall be based
upon the value of such account as of the Valuation Date coincident with or next
preceding the date of such distribution, and shall thereupon be charged against
such account. Whenever a Member shall forfeit all or any portion of the amount
standing to the credit of his Employer Account in accordance with the provisions
of Section 6.05A, the amount so forfeited shall be charged against his Employer
Account.
B. FOR NON-STANDARD PROFIT SHARING SECTION 401(k) PLANS
----------------------------------------------------
5.01B Members' Accounts. The Plan Administrator shall maintain an Elective
-----------------
Deferral Account for each Member on whose behalf Elective Deferrals have been
contributed to the Trust pursuant to Section 4.04B, an Employee Account for each
Member who has contributed to the Trust pursuant to Section 4.05B, a Matching
Account for each Member on whose behalf Matching Contributions have been
contributed to the Trust pursuant to Section 4.06B, an Employer Account for each
Member on whose behalf Employer Contributions have been contributed to the Trust
pursuant to Section 4.07B(a), and a Rollover Account for each Employee who has
contributed to the Trust pursuant to Section 4.11B. The Plan Administrator shall
also maintain a Qualified Non-elective Contribution Account for each Member on
whose behalf Qualified Non-elective Contributions have been contributed to the
20
<PAGE>
Trust pursuant to Section 4.07B(b). If the Employer Contributions under Section
4.07B(a) also qualify as Qualified Non-elective Contributions, then the Plan
Administrator shall only maintain one Qualified Non-elective Contribution
Account for each Member for purpose of holding Employer Contributions made
pursuant to both Sections 4.07B(a) and (b).
5.02B Allocation of Elective Deferrals. At the time of payment of Elective
--------------------------------
Deferrals to the Trust pursuant to Section 4.04B, the Employer shall deliver to
the Plan Administrator a schedule showing the name of each Member for whom
Elective Deferrals are included in such payment and the amount of Elective
Deferrals made on behalf of each such Member. Subject to the provisions of
Articles VI and XII, the Plan Administrator shall allocate to the Elective
Deferral Account of each Member listed on such schedule the amount of Elective
Deferrals made on his behalf to the Trust as shown therein.
5.03B Allocation of Employee Contributions. At the time of payment of
------------------------------------
Employee Contributions to the Trust pursuant to Section 4.05B, the Employer
shall deliver to the Plan Administrator a schedule showing the name of each
Member whose Employee Contributions are included in such payment and the amount
of Employee Contributions made by each such Member. Subject to the provisions of
Articles VI and XII, the Plan Administrator shall allocate to the Employee
Account of each Member listed on such schedule the amount of his Employee
Contributions as shown therein.
5.04B Allocation of Matching Contributions. At the time of payment of
------------------------------------
Matching Contributions to the Trust pursuant to Section 4.06B, the Employer
shall deliver to the Plan Administrator a schedule showing the name of each
Member for whom Matching Contributions are included in such payment and the
amount of Matching Contributions for each such Member as determined by the
Adoption Agreement. The Members who are entitled to receive Matching
Contributions shall be those Members on whose behalf Elective Deferrals have
been made and/or those Members who have made Employee Contributions. Subject to
the provisions of Articles VI and XII, the Plan Administrator shall allocate to
the Matching Account of each Member listed on such schedule the amount of
Matching Contributions made on his behalf to the Trust as shown therein.
5.05B Allocation of Employer Contribution. As soon as practicable after
-----------------------------------
the end of each Plan Year, an Employer shall deliver to the Plan Administrator a
schedule prepared as follows:
(a) FOR PLANS NOT INTEGRATED WITH SOCIAL SECURITY
---------------------------------------------
If a non-integrated formula has been selected in Paragraph 6(D) of
the Adoption Agreement, the schedule shall show the name of each person who was
a Member during such Plan Year, and opposite the name of each such Member, the
amount of Compensation paid to him by the Employer during such Plan Year.
Notwithstanding the foregoing, if so provided in Paragraph 6(D) of the Adoption
Agreement, the schedule shall only show the name of each Member who meets the
requirements specified in such Paragraph of the Adoption Agreement. Subject to
the provisions of Articles VI and XII, the
21
<PAGE>
Plan Administrator shall credit to the Employer Account of each Member listed on
the schedule that portion of the Employer Contributions for such Plan Year which
bears the same ratio to the total Employer Contributions as the Compensation
shown for such Member bears to the total Compensation of all Members shown on
said schedule.
(b) FOR PLANS INTEGRATED WITH SOCIAL SECURITY
-----------------------------------------
If an integrated formula has been selected in Paragraph 6(D) of the
Adoption Agreement, the schedule shall show the name of each person who was a
Member during such Plan Year, and opposite the name of each such Member the
amount of Compensation and Excess Compensation, if any, paid to him by the
Employer during such Plan Year. Notwithstanding the foregoing, if so provided in
Paragraph 6(D) of the Adoption Agreement, the schedule shall only show the name
of each Member who meets the requirements specified in such Paragraph of the
Adoption Agreement. Subject to the provisions of Articles VI and XII, the Plan
Administrator shall credit to the Employer Account of each Member listed on the
schedule a portion of the Employer Contributions on the following basis:
FIRST, an amount equal to X percent times the Member's
Compensation for such Plan Year; and
SECOND, the lesser of (i) an amount equal to X percent times the
Member's Excess Compensation for such Plan Year or (ii) an amount
representing the Member's pro rata share of the balance of the Employer
Contributions, if any, when allocated to all Members in proportion to their
Excess Compensation for such Plan Year; and
THIRD, an amount representing the Member's pro rata share of the
balance of the Employer Contributions, if any, when allocated to Members'
Employer Accounts in proportion to their Compensation for such Plan Year.
For purposes of the foregoing, the maximum value of X% shall be 5.7%. In
any Plan Year in which the Plan is top-heavy, the minimum value of X% shall be
3%.
(c) At the time of payment of Employer Contributions to the Trust
pursuant to Section 4.07B(b), the Employer shall deliver to the Plan
Administrator a schedule showing the name of each Non-highly Compensated
Employee who was a Member during the Plan Year, and opposite the name of each
such Member, the amount of Compensation paid to him by the Employer during such
Plan Year. Subject to the provisions of Articles VI and XII, the Plan
Administrator shall allocate to the Qualified Non-elective Account of each
Member listed on such schedule that portion of such Employer Contribution for
such Plan Year which bears the same ratio to the total amount of such
contribution as the Compensation shown for such Member on such schedule bears to
the total Compensation shown on such schedule for all such Members who are
Non-highly Compensated Employees.
22
<PAGE>
5.06B Allocation of Rollover Contributions. At the time of payment of
------------------------------------
rollover contributions to the Trust pursuant to Section 4.11B, the Employer
shall deliver to the Plan Administrator a schedule showing the name of each
Employee whose rollover contributions are included in such payment and the
amount of rollover contributions made by each such Member. The Plan
Administrator shall allocate to the Rollover Account of each Member listed on
such schedule the amount of his rollover contributions as shown therein.
5.07B Allocation of Forfeitures. The amounts forfeited by terminated
-------------------------
Members pursuant to Sections 6.03 and 7.05 in any Plan Year shall be allocated
to Members' Employer Accounts in the same manner as the allocation of Employer
Contributions under Section 5.05B(a) for such Plan Year; provided, however, that
if so elected by the Employer in the Adoption Agreement, the amount of
forfeitures for any Plan Year shall be used to reduce Matching Contributions for
such Plan Year.
5.08B Election of Investments.
------------------------
(a) If an Employer has specified in its Adoption Agreement that
Members may elect to direct the investment of their Accounts, each such Member
shall elect the manner of investment of all amounts which have been contributed
to the Trust by or on the behalf of such Member, and such amounts shall
thereupon be invested separately for the benefit of such Member; provided,
however, that the Member's investment direction shall be limited to Permissible
Investments, other than collectibles within the meaning of Section 408(m)(2) of
the Code. The assets which are invested at the direction of a Member shall be
segregated into separate accounts for such Member. The Plan Administrator shall
maintain records of account at all times adequately reflecting each Member's
interest in his separate accounts. Notwithstanding the foregoing, the Trustee
may invest on an interim basis amounts credited to the Accounts of a Member in
such short-term liquid Permissible Investments as are selected by the Trustee on
a uniform basis for such purpose.
(b) To make an investment election, each Member shall give written
notice to the Plan Administrator or his delegate, which notice shall be in such
form and given at such time as the Trustee may reasonably require. To be
effective, such an investment election must be in accordance with any and all
rules and regulations established by the Trustee for this purpose. Any
investment election made hereunder shall continue to be effective until properly
revoked by the Member. If at any time there shall be no investment election in
effect with respect to a Member's interest in all or any portion of his
accounts, or if there shall be an investment election which is, in the opinion
of the Trustee, unclear, the Plan Administrator shall specify a "default
election" to the Trustee, under which the Trustee shall invest such interest
without liability for loss of income or appreciation, pending receipt of proper
instructions or clarification.
(c) The Employer, the Plan Administrator, and the Trustee shall have
no responsibility for the investment elections of the Members and shall incur no
liability on account of investing the assets of the Trust in accordance with
such directions.
23
<PAGE>
(d) Notwithstanding anything to the contrary elsewhere herein, the
Employer may, but is not required to, pay any expenses incurred as the result of
a Member's individual investment election. To the extent that the Employer does
not pay such expenses, they will be charged against the Accounts of the Member
making the election as provided in Section 5.09B.
5.09B Allocation of Trust Assets. As of each Anniversary Date of the Trust
--------------------------
and as of any other date which the Plan Administrator in its discretion may
determine (any of which dates is herein referred to as a "Valuation Date"), the
Plan Administrator shall adjust the Accounts of Members to reflect the total net
worth of the assets of the Trust.
(a) PLANS THAT DO NOT PERMIT ELECTION OF INVESTMENTS
------------------------------------------------
BY MEMBERS -
----------
Except as otherwise provided in Section 7.10, the Plan Administrator
shall adjust all Accounts of Members to reflect income, gains, losses,
appreciation and depreciation of the Trust by allocating to such accounts,
in the proportion that each such account balance prior to such adjustment
bears to the total of all such account balances in the Trust, an amount
equal to the total net worth of the assets of the Trust determined as of
such Valuation Date reduced by or disregarding (i) one-half of the total of
all Elective Deferrals and Employee Contributions to the Trust since the
last Valuation Date, and (ii) an amount equal to the total of all Employer
Contributions, Matching Contributions, and forfeitures with respect to the
Plan Year which is current or ended on such Valuation Date.
(b) PLANS THAT DO PERMIT ELECTION OF INVESTMENTS BY
-----------------------------------------------
MEMBERS -
-------
The Plan Administrator shall adjust the separate Accounts of each
Member to reflect income, gains, losses, appreciation and depreciation of
the assets of each such separate account since the last Valuation Date.
5.10B Valuation of Trust. As of each Valuation Date, the Trustee shall
------------------
determine and report to the Plan Administrator the net worth of the Trust, by
evaluating all of its assets and liabilities as of that date. In determining the
net worth of the Trust, the Trustee shall exclude any amounts segregated into
separate accounts held by the Trustee for Members who have borrowed from the
Trust pursuant to Section 7.10, if any, and shall value assets of the Trust at
their fair market value. In the case of assets with no readily ascertainable
fair market value, the Trustee shall determine the said value on any reasonable
basis it may deem appropriate. If Members can direct investment of their
accounts pursuant to Section 5.08B, the Trustee shall determine and report to
the Plan Administrator the net worth of each Member's separate account as of the
Valuation Date.
5.11B Distributions and Forfeitures. Whenever the Trustee shall make any
-----------------------------
distribution to or on behalf of a Member from any of his Accounts in accordance
with the
24
<PAGE>
provisions of Article VII, the amount so distributed shall be based upon the
value of such Account as of the Valuation Date coincident with or next preceding
the date of such distribution, and shall thereupon be charged against such
Account. Whenever a Member shall forfeit all or any portion of the amount
standing to the credit of his Employer Account and Matching Account in
accordance with the provisions of Section 7.05, the amount so forfeited shall be
charged against his Employer Account and Matching Account, respectively.
ARTICLE VI
----------
FOR NON-STANDARD PROFIT SHARING SECTION 401(k) PLANS
----------------------------------------------------
Limitations on Contributions
and Allocations
----------------------------
6.01 Maximum Amount of Elective Deferrals. For each calendar year, the
------------------------------------
Elective Deferrals made on behalf of any Member under this Plan and all other
plans maintained by the Employer with a cash or deferred feature shall not
exceed the dollar limitation contained in Section 402(g) of the Code in effect
at the beginning of such calendar year. Other plans maintained by the Employer
include any simplified employee pension cash or deferred arrangement as
described in Section 402(h)(1)(B) of the Code, any eligible deferred
compensation plan under Section 457 of the Code, any plan as described in
Section 501(c)(18) of the Code and any employer contributions made on behalf of
a Member for the purchase of an annuity contract under Section 403(b) of the
Code pursuant to a salary reduction agreement. If, during any calendar year,
more than the maximum permissible amount under Section 402(g) of the Code is
allocated pursuant to one or more cash or deferred arrangements to a Member's
accounts under the Plan and any other plan described in Sections 401(k), 408(k),
403(b), 457, or 501(c)(18) of the Code, the following provisions shall apply:
(a) No later than March 1 of the next succeeding calendar year, the
Member may, but is not required to, assign all or part of such contributions in
excess of the maximum permissible amount (hereinafter "Excess Elective
Deferrals") to the Plan. To be effective, such allocation must be in writing,
state that Excess Elective Deferrals have been made on behalf of such Member for
the preceding calendar year, and be submitted to the Plan Administrator. A
Member is deemed to notify the Plan Administrator of any Excess Elective
Deferrals that arise by taking into account only those Elective Deferrals made
to this Plan and any other plans of this Employer.
(b) To the extent a Member timely assigns Excess Elective Deferrals
to the Plan pursuant to (a) above, the Plan Administrator shall direct the
Trustee to distribute such Excess Elective Deferrals adjusted for income or loss
allocable thereto to the Member no later than the April 15 following such
assignment.
25
<PAGE>
(c) Excess Elective Deferrals shall be adjusted for any income or
loss up to the date of distribution. The income or loss allocable to Excess
Elective Deferrals is defined as the income or loss allocable to the Member's
Elective Deferral Account for the taxable year multiplied by a fraction, the
numerator of which is such Member's Excess Elective Deferrals for the year and
the denominator is the Member's account balance attributable to Elective
Deferrals without regard to any income or loss occurring during such taxable
year.
6.02 Limitation on Elective Deferrals.
---------------------------------
(a) For each Plan Year, the Elective Deferrals of the Members who are
considered Highly-Compensated Employees for such Plan Year shall be limited to
the extent determined to be necessary by the Plan Administrator so as to insure
that the test in either (i) or (ii) below is met for such Plan Year.
(i) The Average Deferral Percentage (hereinafter "ADP") of the
Members who are considered Highly Compensated Employees for the Plan Year
is not more than the ADP of Members who are Non-highly Compensated
Employees for the same Plan Year multiplied by 1.25; or
(ii) The ADP of the Members who are considered Highly Compensated
Employees for the same Plan Year is not more than two (2)
percentage points greater than the ADP of all other Members who are
Non-highly Compensated Employees for the same Plan Year and the ADP of the
Members who are considered Highly Compensated Employees is not more than
the ADP of all other Members who are Non-highly Compensated Employees
multiplied by two (2).
For purposes of this Section 6.02(a), "Average Deferral Percentage"
of a specified group of Members for a Plan Year shall be the average of the
ratios (calculated separately for each Member in such group) of (1) the amount
of the employer contributions actually paid over to the Trust on behalf of such
Member for such Plan Year to (2) the Member's Compensation for the Plan Year,
other than Compensation earned while the Employee was not eligible to become a
Member (if such exclusion is permitted by law). For purposes of this Section
6.03, employer contributions on behalf of any Member shall include (A) any
Elective Deferrals made pursuant to the Member's Salary Adjustment Agreement,
including Excess Elective Deferrals, but excluding Elective Deferrals that are
taken into account in the Contribution Percentage Test (provided the ADP test is
satisfied both with and without exclusion of these Elective Deferrals); and (B)
Qualified Non-Elective Contributions and Qualified Matching Contributions, if
any. For purposes of computing Average Deferral Percentages, an Employee who
would be a Member but for the failure to make Elective Deferrals shall be
treated as a Member on whose behalf no Elective Deferrals are made.
(b) Special Rules:
(i) The ADP for any Member who is a Highly Compensated Employee
for the Plan Year and who is eligible to have Elective Deferrals (and
26
<PAGE>
Qualified Non-elective Contributions or Qualified Matching Contributions,
or both, if treated as Elective Deferrals for purposes of the ADP test)
allocated to his accounts under two or more arrangements described in
Section 401(k) of the Code, that are maintained by the Employer, shall be
determined as if such Elective Deferrals (and, if applicable, such
Qualified Non-elective Contributions or Qualified Matching Contributions,
or both) were made under a single arrangement. If a Highly Compensated
Employee participates in two or more cash or deferred arrangements that
have different Plan Years, all cash or deferred arrangements ending with or
within the same calendar year shall be treated as a single arrangement.
(ii) In the event that this Plan satisfies the requirements of
Sections 401(k), 401(a)(4), or 410(b) of the Code only if aggregated with
one or more other plans, or if one or more other plans satisfy the
requirements of such sections of the Code only if aggregated with this
Plan, then this Section 6.02 shall be applied by determining the ADP of
Employees as if all such plans were a single plan. For Plan Years beginning
after December 31, 1989, plans may be aggregated in order to satisfy
section 401(k) of the Code only if they have the same Plan Year.
(iii) For purposes of determining the ADP of a Member who is a
5-percent owner or one of the ten (10) most highly-paid Highly Compensated
Employees, the Elective Deferrals (and Qualified Non-elective Contributions
or Qualified Matching Contributions, or both, if treated as Elective
Deferrals for purposes of the ADP test) and Compensation of such Member
shall include the Elective Deferrals (and, if applicable, Qualified
Non-elective Contributions and Qualified Matching Contributions, or both)
and Compensation for the Plan Year of his Family Members. Such Family
Members shall be disregarded as separate Employees in determining the ADP
both for Members who are Non-highly Compensated Employees and for Members
who are Highly Compensated Employees.
(iv) For purposes of determining the ADP test, Elective
Deferrals, Qualified Non-elective Contributions and Qualified Matching
Contributions must be made before the last day of the twelve-month period
immediately following the Plan Year to which contributions relate.
(v) The Employer shall maintain records sufficient to
demonstrate satisfaction of the ADP test and the amount of Qualified
Non-elective Contributions or Qualified Matching Contributions, or both,
used in such test.
(vi) The determination and treatment of the ADP amounts of any
Member shall satisfy such other requirements as may be prescribed by the
Secretary of the Treasury.
(c) If, for any Plan Year, the Plan Administrator shall determine the
aggregate amount of employer contributions actually taken into account in
computing the ADP of Highly Compensated Employees for such Plan Year exceeds the
maximum amount
27
<PAGE>
of such contributions permitted by the ADP test set forth in (a) above, the Plan
Administrator shall reduce such excess contributions made on behalf of Highly
Compensated Employees in order of their ADPs, beginning with the highest of such
percentages (hereinafter "Excess Contributions"). For each Highly Compensated
Employee who is so affected, the Plan Administrator shall reduce amounts
credited to his Elective Deferral Account and Matching Account (if applicable)
in proportion to the Member's Elective Deferrals and Qualified Matching
Contributions (to the extent used in the ADP test) for the Plan Year. If the
Member's Excess Contributions exceed the balance in the Member's Elective
Deferral Account and Matching Account, the Plan Administrator shall also reduce
amounts from his Qualified Non-elective Contribution Account. In the event any
such Highly Compensated Employee is subject to the Family Member aggregation
rules of Section 414(q)(6) of the Code, the Excess Contributions shall be
allocated to such Highly Compensated Employee in the manner prescribed by the
regulations. Such Excess Contributions, plus any income and minus any loss
allocable thereto, shall be distributed to each affected Highly Compensated
Employee no later than the last day of the Plan Year following the Plan Year in
which such Excess Contributions were made. If Excess Contributions are
distributed more than two and one-half (2-1/2) months after the last day of the
Plan Year in which such excess amounts arose, a ten percent (10%) excise tax
shall be imposed on the Employer maintaining the Plan with respect to such
amounts. Excess Contributions shall be treated as Annual Additions under the
Plan. Notwithstanding the foregoing, the Excess Contributions that would
otherwise be distributed to a Member under this Section 6.02(c) shall be reduced
in the manner prescribed by regulations by the amount of Excess Deferrals, if
any, distributed to the Member for the Plan Year under Section 6.01.
(d) Excess Contributions shall be adjusted for any income or loss up
to the date of distribution. The income or loss allocable to Excess
Contributions is defined as the income or loss allocable to the Member's
Elective Deferral Account (and, if applicable, the Qualified Non-elective
Contribution Account or the Matching Account or both) for the Plan Year
multiplied by a fraction, the numerator of which is such Member's Excess
Contributions for the year and the denominator is the Member's account balance
attributable to Elective Deferrals (and Qualified Non-Elective Contributions or
Qualified Matching Contributions, or both, if any of such contributions are
included in the ADP test) without regard to any income or loss occurring during
such Plan Year.
6.03 Limitation on Employee Contributions and Matching Contributions.
---------------------------------------------------------------
(a) For each Plan Year, the Average Contribution Percentage
(hereinafter "ACP") for the Members who are considered Highly Compensated
Employees for the Plan Year may not exceed the greater of (i) 1.25 times the ACP
of all other Members who are Non-Highly Compensated Employees for the same Plan
Year, or (ii) the lesser of two (2) times the ACP of all such other Members, or
such ACP plus two (2) percentage points.
For purposes of this Section 6.03(a):
28
<PAGE>
(i) "Average Contribution Percentage" of a specified group of
Members for a Plan Year shall be the average of the ratios (expressed as a
percentage and calculated separately for each Member in such group) of (A)
the Contribution Percentage Amounts to the Member's Compensation for the
Plan Year, other than Compensation earned while the Employee was not
eligible to become a Member (if such exclusion is permitted by law). For
purposes of computing Actual Contribution Percentages, each Employee who is
eligible to make Employee Contributions or Elective Deferrals or to receive
a Matching Contributions shall be taken into account, whether or not he is
actually making, or entitled to receive, such contributions to the Trust.
(ii) The Contribution Percentage Amounts shall be the sum of Employee
Contributions, Matching Contributions and Qualified Matching Contributions
(to the extent not taken into account for purposes of the ADP test) made
under the Plan on behalf of the Member for the Plan Year. Such Contribution
Percentage Amounts shall also include forfeitures of Excess Aggregate
Contributions or Matching Contributions allocated to the Member's Matching
Account which shall be taken into account in the year in which such
forfeiture is allocated. The Plan Administrator may elect to include
Qualified Non-elective Contributions in the Contribution Percentage
Amounts. The Plan Administrator also may elect to use Elective Deferrals in
the Contribution Percentage Amounts so long as the ADP test is met before
the Elective Deferrals are used in the ACP test and continues to be met
following the exclusion of those Elective Deferrals that are used to meet
the ACP test.
(iii) "Aggregate Limit" shall mean the greater of:
(A) The sum of (1) 125 percent of the greater of the ADP of
the Non-highly Compensated Employees for the Plan Year or the ACP of
the Non-highly Compensated Employees under the Plan subject to Code
Section 401(m) for the Plan Year beginning with or within the Plan
Year of the cash or deferred arrangement and (2) the lesser of 200%
or two (2) percentage points plus the lesser of such ADP or ACP.
(B) The sum of (1) 125 percent of the lesser of the ADP of
the Non-highly Compensated Employees for the Plan Year or the ACP of
the Non-highly Compensated Employees under the Plan subject to Code
Section 401(m) for the Plan Year beginning with or within the Plan
Year of the cash or deferred arrangement and (2) the lesser of 200%
or two (2) percentage points plus the greater of such ADP or ACP.
(b) Special Rules:
(i) Multiple Use: If one or more Highly Compensated Employees
participate in both a cash or deferred arrangement and a plan subject to
the ACP test maintained by the Employer and the sum of the ADP and ACP of
those Highly
29
<PAGE>
Compensated Employees subject to either or both tests exceeds
the Aggregate Limit, then the ACP of those Highly Compensated Employees who
also participate in a cash or deferred arrangement will be reduced
(beginning with such Highly Compensated Employee whose ACP is the highest)
so that the limit is not exceeded. The amount by which each Highly
Compensated Employee's Contribution Percentage Amounts is reduced shall be
treated as an Excess Aggregate Contribution. The ADP and ACP of the Highly
Compensated Employees are determined after any corrections required to meet
the ADP and ACP tests. Multiple use does not occur if both the ADP and ACP
of the Highly Compensated Employees does not exceed 1.25 multiplied by the
ADP and ACP of the Non-highly Compensated Employees, or if the alternative
limit (the lesser of 200% or two (2) percentage points plus the ADP or ACP
of the Non-Highly Compensated Employees) is only used once.
(ii) For purposes of this Section 6.03, the Contribution
Percentage for any Member who is a Highly Compensated Employee and who is
eligible to have Contribution Percentage Amounts allocated to his accounts
under two or more plans described in Section 401(a) of the Code, or
arrangements described in Section 401(m) of the Code that are maintained by
the Employer, shall be determined as if the total of such Contribution
Percentage Amounts was made under each plan. If a Highly Compensated
Employee participates in two or more cash or deferred arrangements that
have different plan years, all cash or deferred arrangements ending with or
within the same calendar year shall be treated as a single arrangement.
(iii) In the event that this Plan satisfies the requirements of
Sections 401(m), 401(a)(4) or 410(b) of the Code only if aggregated with
one or more other plans, or if one or more other plans satisfy the
requirements of such sections of the Code only if aggregated with this
plan, then this Section 6.03 shall be applied by determining the
Contribution Percentage of Employees as if all such plans were a single
plan. For Plan Years beginning after December 31, 1989, plans may be
aggregated in order to satisfy Section 401(m) of the Code only if they have
the same Plan Year.
(iv) For purposes of determining the Contribution Percentage of a
Member who is a 5-percent owner or one of the ten (10) most highly-paid
Highly Compensated Employees, the Contribution Percentage Amounts and
Compensation of such Member shall include the Contribution Percentage
Amounts and Compensation for the Plan Year of his Family Members. Such
Family Members shall be disregarded as separate Employees in determining
the Contribution Percentage both for Members who are Non-highly Compensated
Employees and for Members who are Highly Compensated Employees.
(v) For purposes of determining the Contribution Percentage
test, Employee Contributions are considered to have been made in the Plan
Year in which contributed to the Trust. Matching Contributions, Qualified
Matching Contributions and Qualified Non-elective Contributions will be
considered made for a Plan Year if
30
<PAGE>
made no later than the end of the twelve-month period beginning on the day
after the close of the Plan Year.
(vi) The Employer shall maintain records sufficient to
demonstrate satisfaction of the ACP test and the amount of Qualified
Non-elective Contributions or Qualified Matching Contributions, or both,
used in such test.
(vii) The determination and treatment of the Contribution
Percentage of any Member shall satisfy such other requirements as may be
prescribed by the Secretary of the Treasury.
(c) If for any Plan Year, the Plan Administrator shall determine that
the aggregate Contribution Percentage Amounts taken into account in computing
the ACP of Highly Compensated Employees for such Plan Year exceeds the maximum
amount permitted by the ACP test in (a) above, the Plan Administrator shall
reduce such excess contributions made on behalf of Highly Compensated Employees
in order of their Contribution Percentages, beginning with the highest of such
percentages (hereinafter "Excess Aggregate Contributions"). The foregoing
determination shall be made after first determining Excess Elective Deferrals
pursuant to Section 6.01, and then determining Excess Contributions pursuant to
Section 6.02. For each Highly Compensated Employee who is so affected, the Plan
Administrator shall reduce, on a pro rata basis, amounts credited to his
Employee Account and Matching Account (and, if applicable, his Non-elective
Contribution Account or Elective Deferral Account, or both). In the event any
such Highly Compensated Employee is subject to the Family Member aggregation
rules of Section 414(q)(6) of the Code, the Excess Aggregate Contributions shall
be allocated to such Highly Compensated Employee in the manner prescribed in the
regulations. The Excess Aggregate Contribution which is attributable to Employee
Contributions, fully vested Matching Contributions (and, if applicable,
Qualified Non-elective Contributions and Elective Deferrals), plus any income
and minus any loss allocable thereto, shall be distributed no later than the
last day of the Plan Year following the Plan Year in which such Excess Aggregate
Contributions were made. If such Excess Aggregate Contributions are distributed
more than 2-1/2 months after the last day of the Plan Year in which such excess
amounts arose, a ten percent (10%) excise tax shall be imposed on the Employer
maintaining the Plan with respect to those amounts. Excess Aggregate
Contributions which are attributable to Matching Contributions which are not
fully vested, plus any income and minus any loss allocable thereto, shall be
forfeited and shall be reallocated as provided in Section 5.07B. Excess
Aggregate Contributions shall be treated as Annual Additions under the Plan.
(d) Excess Aggregate Contributions shall be adjusted for any income
or loss up to the date of distribution. The income or loss allocable to Excess
Aggregate Contributions is defined as the income or loss allocable to the
Member's Employee Account, Matching Account (to the extent amounts therein are
not used in the ADP test) and, if applicable, Qualified Non-elective
Contribution Account and Elective Deferral Account for the Plan Year multiplied
by a fraction, the numerator of which is such Member's Excess Aggregate
Contributions for the year and the denominator is the Member's account balances
31
<PAGE>
attributable to Contribution Percentage Amounts without regard to any income or
loss occurring during such Plan Year.
6.04 Limitation on Distributions. Notwithstanding anything to the contrary
---------------------------
elsewhere herein, the amounts credited to a Member's Elective Deferral Account,
Qualified Non-Elective Contribution Account and Matching Account (if Matching
Contributions are considered to be Qualified Matching Contributions) shall not
be distributable to a Member or his Beneficiary until the Member separates from
service on account of retirement, disability, death or termination of employment
(pursuant to Sections 7.02 through 7.05) or upon the occurrence of one of the
following events:
(a) Termination of the Plan without the establishment of another
defined contribution plan.
(b) The disposition by a corporation to an unrelated corporation of
substantially all of the assets (within the meaning of Section 409(d)(2) of the
Code) used in a trade or business of such corporation if such corporation
continues to maintain this Plan after the disposition, but only with respect to
Employees who continue employment with the corporation acquiring such assets.
(c) The disposition by a corporation to an unrelated entity of such
corporation's interest in a subsidiary (within the meaning of Section 409(d)(3)
of the Code) if such corporation continues to maintain this Plan, but only with
respect to Employees who continue employment with such subsidiary.
(d) The attainment of age fifty-nine and one-half (59-1/2) by the
Member.
(e) The hardship of the Member as described in Section 7.06.
ARTICLE VII
-----------
Payments to or for the Accounts of
Members or Terminated Members
-----------------------------
7.01 Restrictions on Payments and Distributions. No money or other property
------------------------------------------
of the Trust shall be paid out or distributed by the Trustee except (a) for the
purchase or other acquisition of investments; (b) for defraying the expenses,
including taxes, if any, or administering the Plan and Trust as elsewhere herein
provided; (c) for the return of contributions pursuant to Section 1.03, Article
IV or Article VI, or (d) for the purpose of making distributions to or for the
account of Members upon the written direction of the Plan Administrator in
accordance with the rules set forth below.
7.02 Retirement Benefits. A Member shall be fully vested in all his
-------------------
Accounts upon attainment of Normal Retirement Age. Upon retirement of a Member,
which shall be
32
<PAGE>
deemed to mean any termination of his employment with an Employer at or after
his reaching Normal Retirement Age, the full amount of such Member's Accounts
shall then become distributable to such Member pursuant to Sections 7.07 and
7.08.
7.03 Disability Benefits. If the Plan Administrator shall determine, on the
-------------------
basis of such medical evidence as it may reasonably require, that a Member is
totally disabled from continuing in the employ of the Employer by reason of
Disability, the full amount of such Member's Accounts shall then become
distributable to such Member pursuant to Sections 7.07 and 7.08. The Plan
Administrator's determination as to whether a Member has become totally disabled
from continuing in the employ of the Employer by reason of Disability shall be
conclusive and binding upon all persons.
7.04 Death Benefits.
--------------
(a) Death of Member Who Has Not Elected Annuity Form of Payment. If a
-----------------------------------------------------------
Member has not elected an annuity form of benefit payment pursuant to Option D
of Section 7.07, then upon his death prior to his Annuity Starting Date, the
full amount of such Member's Accounts shall be distributable to the surviving
spouse of such Member pursuant to Sections 7.07 and 7.08; provided, however,
that such Accounts shall be distributable in accordance with paragraph (c),
below, instead of this paragraph (a), if there is no surviving spouse or if the
Member has elected to designate a non-spousal Beneficiary in a writing which
satisfies either of the following conditions:
(i) (A) The Member's surviving spouse has consented in writing to
such election; (B) the election designates a specific Beneficiary,
including any class of Beneficiaries or any contingent Beneficiaries which
may not be changed without spousal consent (or the spouse expressly permits
designation by the Member without any further spousal consent); (C) the
spouse's consent acknowledges the effect of the election, and (D) the
spouse's consent has been witnessed by a Plan representative or a notary
public; or
(ii) It is established to the satisfaction of the Plan
Administrator that the consent of the surviving spouse could not have been
obtained because there is no spouse, because the spouse cannot be located,
or because of other circumstances prescribed by regulations issued under
Section 417(a)(2) of the Code.
(b) Death of Member Who Has Elected Annuity Form of Payment. If a
-------------------------------------------------------
Member has elected an annuity form of benefit payment pursuant to Option D of
Section 7.07, then upon his death prior to his Annuity Starting Date, one-half
of such Member's Accounts shall be applied toward the purchase of a
nontransferable annuity for the life of the surviving spouse of such Member. The
surviving spouse may elect to have such annuity distributed within a reasonable
period after the Member's death and may also elect distribution of such amount
in any other form permissible under Sections 7.07 and 7.08. The remainder of
such Member's Accounts shall be
33
<PAGE>
distributable in accordance with paragraph (c); provided, however, that the full
amount of such Accounts shall be distributable in accordance with paragraph (c)
instead of this paragraph (b) if there is no surviving spouse or if the Member
has elected to waive the surviving spouse annuity in a writing which satisfies
either of the following conditions:
(i) (A) The Member's surviving spouse has consented in writing to
such election; (B) the election designates a specific Beneficiary,
including any class of Beneficiaries or any contingent Beneficiaries, which
may not be changed without spouse consent (or the spouse expressly permits
designation by the Member without any further spousal consent); (C) the
spouse's consent acknowledges the effect of the election; and (D) the
spouse's consent has been witnessed by a plan representative or a notary
public; or
(ii) It is established to the satisfaction of the Plan
Administrator that the consent of the surviving spouse could not have been
obtained because there is no spouse, because the spouse cannot be located,
or because of other circumstances prescribed by regulations issued under
Section 417(a)(2) of the Code.
A Member's waiver of the surviving spouse annuity must be made during
an election period beginning on the first day of the Plan Year in which the
Member attains age thirty-five (35) and ending on the date of the Member's
death; provided, however, that in the case of a Member who separates from
service prior to the first day of the Plan Year in which age thirty-five (35) is
attained, the applicable period shall begin on the date of such separation from
service. The Plan Administrator shall provide each Member, within the applicable
period for such Member, a written explanation of the terms and conditions of the
surviving spouse annuity; the Member's right to make and the effect of an
election to waive it; the rights of the Member's spouse; and the right to make,
and the effect of, a revocation of a previous election to waive the surviving
spouse annuity.
The applicable period for a Member is whichever of the following
period ends last: (1) the period beginning with the first day of the Plan Year
in which the Member attains age thirty-two (32) and ending with the close of the
Plan Year preceding the Plan Year in which the Member attains age thirty-five
(35); (2) a reasonable period after the individual becomes a Member; and (3) a
reasonable period ending after this Section 6.04(b) first applies to the Member.
Notwithstanding the foregoing, notice must be provided within a reasonable
period ending after separation from service in the case of a Member who
separates from service before attaining age thirty-five (35).
For purposes of applying the preceding paragraph, a reasonable period
ending after the enumerated events described in (2) and (3) above is the end of
the two-year period beginning one year prior to the date the applicable event
occurs, and ending one year after that date. In the case of a Member who
separates from service before the Plan Year in which age thirty-five (35) is
attained, notice shall be provided within the two-year period beginning one year
prior to separation and ending one year after separation. If such a Member
thereafter returns to employment with the Employer, the applicable period for
such Member shall be redetermined.
34
<PAGE>
No consent obtained pursuant to this Section 7.04(b) shall be valid
unless the Member has received notice as provided in the preceding paragraphs.
If the amount to be applied toward the purchase of an annuity is less
than or equal to $3,500, the Plan Administrator shall distribute such entire
amount to the surviving spouse in a lump sum in lieu of the purchase of an
annuity.
Any living Member not receiving benefits on August 23, 1984 and who
would otherwise not be covered under this paragraph (b) must be given the
opportunity to elect to have this paragraph (b) apply if such Member was
credited with at least one Hour of Service under this Plan or a predecessor plan
in a plan year beginning on or after January 1, 1976, and such Member had at
least ten (10) Years of Vesting Service when he separated from service.
(c) Payments To Designated Beneficiary. Each Member shall have the
----------------------------------
right to designate one or more Beneficiaries, including contingent
Beneficiaries, entitled to receive the amount payable on behalf of such Member
under the provisions of this paragraph (c) in the event of his death. Such
designation shall be made in writing in such manner as the Plan Administrator
shall determine. The Plan Administrator shall maintain a file of such
designations. A Member may change such designation from time to time subject to
paragraph (a), (b) and (d), and may revoke such designation. Upon the death of
any Member, the entire portion of such Member's Accounts which is subject to
this paragraph (c) (or in the case of a terminated or retired Member who has not
been paid in full, the undistributed balance of his accounts) shall then be
distributable to such Member's Beneficiary or Beneficiaries pursuant to Sections
7.07 and 7.08. If a Member dies without having designated a Beneficiary, or if
none of the designated Beneficiaries survives the Member, or if the Plan
Administrator is in doubt as to the effective status of a Beneficiary
designation, the surviving spouse shall be deemed to be the Beneficiary if
living with such Member at the time of his death; otherwise the duly appointed
executor or administrator of the estate of such Member shall be deemed to be his
Beneficiary. If a Beneficiary entitled to receive any amount payable in behalf
of a Member under the Plan dies prior to having received the entire amount, the
undistributed balance shall be distributed to such deceased Beneficiary's
estate.
(d) Any consent by a spouse under Section 7.04(a)(i) or (b)(i) (or
establishment that the consent of a spouse may not be obtained) shall be
effective only with respect to such spouse. A consent that permits designations
by the Member without any requirement of further consent by such spouse must
acknowledge that the spouse has the right to limit consent to a specific
Beneficiary, and that the spouse voluntarily elects to relinquish such rights. A
revocation of any such Beneficiary designation may be made by a Member at any
time prior to the commencement of benefits, without the consent of the spouse.
The number of revocations shall not be limited. A former spouse shall be treated
as a surviving spouse to the extent benefits must be paid to such former spouse
upon the Member's death pursuant to a Qualified Domestic Relations Order, except
that no consent
35
<PAGE>
shall be required from such former spouse with respect to the
designation of a Beneficiary to receive benefits not subject to said order.
7.05 Termination of Employment Prior to Retirement or Death.
------------------------------------------------------
(a) Severance Benefits. In the event that a Member's employment with
------------------
an Employer is terminated under circumstances other than as provided for under
Sections 7.02 through 7.04, such Member shall be entitled to a severance benefit
equal to the full amount standing to the credit of such Member's Accounts other
than his Employer Account and Matching Account (if any) plus a percentage of the
amount standing to the credit of his Employer Account and Matching Account (if
any) as determined by the vesting provisions specified in the Adoption
Agreement. The vested benefit determined in accordance with the foregoing
sentence shall never be adjusted on account of any Years of Vesting Service
which the Member might complete upon reemployment by an Employer after a Break
in Service, except as provided in Section 7.05(c).
If, upon termination of employment, the value of a Member's vested
account balances derived from Employer and Employee contributions is not greater
than $3,500, the Member shall receive a distribution of the value of his vested
account balances in a lump sum pursuant to the provisions of Section 7.07 within
a reasonable time after his termination of employment, and the nonvested portion
of his Accounts shall be treated as a forfeiture and reallocated pursuant to the
provisions of Section 5.04A(b) or Section 5.07B, whichever is applicable, as of
the end of the Plan Year of distribution. For this purpose, if the value of a
Member's vested account balance is zero, the Member shall be deemed to have
received a distribution of such vested account balance as of his termination
date. A Member's vested account balance shall not include accumulated deductible
employee contributions within the meaning of Section 72(o)(5)(B) of the Code for
Plan Years beginning prior to January 1, 1989.
If, upon termination of employment, the value of a Member's vested
account balances derived from Employer and Employee contributions is greater
than $3,500 and he elects, in accordance with the requirements of Section
7.07(c), to receive the entire value of his vested account balances in a lump
sum, the nonvested portion of his Accounts shall be treated as a forfeiture and
reallocated pursuant to the provisions of Section 5.04(b) or Section 5.07B,
whichever is applicable, as of the end of the Plan Year of distribution.
In all other cases, the non-vested portion of a Member's Accounts
shall be treated as a forfeiture and reallocated pursuant to the provisions of
Section 5.04A(b) or Section 5.07B, whichever is applicable, as of the end of the
Plan Year in which such Member incurs five (5) consecutive One-Year
Breaks-in-Service.
(b) Reemployment. If a former Member is reemployed, he shall become a
------------
Member immediately upon reemployment, and all his prior Years of Vesting Service
shall be restored.
36
<PAGE>
If any other former Member who is not fully vested in his Accounts at
termination of employment is reemployed after incurring five (5) consecutive
One-Year Breaks-in-Service, he shall have no right to any forfeited account
balance. Any undistributed vested portion of his Employer Account shall be held
in a separate vested Employer Account, and future Employer contributions on his
behalf shall be credited to a new Employer Account. Any undistributed vested
portion of his Matching Account shall be held in a separate vested Matching
Account, and future Matching Contributions on his behalf shall be credited to a
new Matching Account.
The following provisions shall apply with respect to a former Member
who is not fully vested in his Accounts at termination of employment, who does
not incur a One-Year Break-in-Service until after the first day of the Plan Year
commencing after December 31, 1984, and who is reemployed before he incurs five
(5) consecutive One-Year Breaks-in-Service:
(i) If no amounts have been forfeited from his Employer Account
and Matching Account (if any), the amounts remaining in his Employer
Account and Matching Account shall be restored to his credit, and the
portion of his Employer Account and Matching Account to which he will be
entitled upon subsequent termination of employment will be based on his
aggregate Years of Vesting Service before and after the break.
(ii) If the non-vested portion of the Member's Employer Account
and Matching Account (if any) has been forfeited, he shall have the right
to repay to the Plan the full amount of any prior distribution to the
extent such distribution was attributable to Employer contributions and
Matching Contributions. Such repayment must be made on or before the
earlier of five (5) years after the first date on which the Member is
subsequently reemployed by the Employer, or the close of the first period
of five (5) consecutive One-Year Breaks in Service following the date of
distribution. Upon such repayment, the amount of any such repayment plus
the value of the forfeited portion of such Accounts as of the date of
forfeiture shall be credited to such Accounts.
(iii) If the Member is deemed to receive a distribution from his
Employer Account and Matching Account (if any) pursuant to Section 7.05(a),
and his entire Employer Account and Matching Account (if any) have been
forfeited, upon the reemployment of such Member, the value of his Employer
Account and Matching Account (if any) as of the date of the forfeiture
shall be restored to his credit.
(iv) The previously forfeited amount shall be funded by
forfeitures from other accounts, Employer contributions, or any combination
thereof at the Employer's discretion. Such restoration shall not be treated
as an annual addition under Article XII, and such Employer contributions
may be made even if there are no Net Profits. Any Employer contributions to
which such Member becomes entitled after reemployment shall be credited to
his Employer Account. Any Matching
37
<PAGE>
Contributions to which such Member becomes entitled after reemployment
shall be credited to his Matching Account. The portion of such Accounts to
which he will be entitled upon subsequent termination of employment will be
based upon his aggregate Years of Vesting Service before and after the
break.
If such a Member incurred a One-Year Break in Service in the Plan
Year immediately prior to the Plan Year commencing after December 31, 1984, his
right to restoration of prior Years of Service shall be determined in accordance
with the rules of the above provisions of this Section 6.05(b) but substituting
the phrase "a One-Year Break-in-Service" for the phrase "five (5) consecutive
One-Year Breaks-in-Service" wherever it appears.
(c) Determination by Plan Administrator. The determination of the
-----------------------------------
amount to which a terminated Member is entitled in accordance with the foregoing
rules shall be made by the Plan Administrator (subject to the provisions of
Section 9.04), and his determination shall be conclusive and binding upon all
persons.
7.06 Withdrawals.
(a) FOR STANDARD PROFIT SHARING PLANS.
---------------------------------
(i) If the Adoption Agreement specifies that withdrawals may be
made pursuant to Section 7.06(a)(i), each Member may elect, at such time
and in such manner as the Plan Administrator may prescribe, but not more
than once in any twelve (12) month period, to withdraw from his Accounts
(other than his Employer Account), up to the amount of such total account
balances. The amount of any withdrawal pursuant to this Section 7.06(a)(i)
shall be allocated to and charged against the Member's interest in his
Accounts, in accordance with Section 5.06A. If the Member has more than one
Account from which he can make a withdrawal under this Section 7.06(a)(i),
the Member shall direct the Plan Administrator as to the order of the
withdrawal.
(ii) If the Adoption Agreement specifies that withdrawals may be
made pursuant to Section 7.06(a)(ii), each Member who is 100% vested in his
Employer Account under Section 7.05(a) and who has satisfied the
requirements set forth in the Adoption Agreement may elect, at such time
and in such manner as the Plan Administrator may prescribe, but not more
than once in any twelve (12) month period, to withdraw any amount from his
Employer Account, up to the amount of such total account balance; provided
that no such withdrawal shall be permitted until the full amount standing
to the credit of such Member's other Accounts has been withdrawn.
(b) FOR NON-STANDARD PROFIT SHARING SECTION 401(k)
----------------------------------------------
PLANS.
-----
38
<PAGE>
(i) If the Adoption Agreement specifies that withdrawals may be
made pursuant to Section 7.06(b)(i) of the Plan, each Member may elect, at
such time and in such manner as the Plan Administrator may prescribe, but
not more than once in any twelve (12) month period, to withdraw from his
Employee Account and/or Rollover Account, up to the amount of such total
account balances. The amount of any withdrawal pursuant to this Section
7.06(b)(i) shall be allocated to and charged against the Member's interest
in his Employee Account, and/or Rollover Account in accordance with Section
5.11B. If withdrawals are permitted from both accounts, a Member may choose
to withdraw from his Employee Account before withdrawing from his Rollover
Account, or vice versa. Each Member who withdraws from his Employee Account
pursuant to this Section 7.06(b)(i) shall be prohibited from making
Employee Contributions to the Trust for six (6) months, and shall be
prohibited from receiving Matching Contributions during such period.
(ii) If the Adoption Agreement specifies that withdrawals may be
made pursuant to Section 7.06(b)(ii), each Member who is 100% vested in his
Employer Account and/or Matching Account under Section 7.05(a) and who has
---
satisfied the requirements set forth in the Adoption Agreement may elect,
at such time and in such manner as the Plan Administrator may prescribe,
but not more than once in any twelve (12) month period, to withdraw any
amount from his Employer Account and/or Matching Account, up to the amount
of such total account balances.
(iii) If the Adoption Agreement specifies that hardship
withdrawals may be made pursuant to Section 7.06(b)(iii), each Member may
request at such time and in such manner as the Plan Administrator may
prescribe, to withdraw all or any portion of his Elective Deferral Account
in order to meet a "Financial Hardship;" provided that effective on and
after January 1, 1989, no such withdrawal can exceed the aggregate amount
of his Elective Deferrals contributed to the Plan to that date of
withdrawal plus the earnings credited to his Elective Deferrals Account as
of December 31, 1988 (if any), reduced by prior withdrawals; and provided,
further, that no such withdrawal shall be permitted until the full amount
permitted to be withdrawn under Section 7.06(b)(i) and (ii) has been
withdrawn.
For purposes of this Section 7.06(b)(iii), Financial Hardship
shall mean an immediate and heavy financial need which such Member is not
able to meet from any other reasonably available resources. Notwithstanding
the foregoing, in the case of a request to withdraw pursuant to this
Section 7.06(b)(iii) by a Member who has attained age fifty-nine and
one-half (59-1/2), the Plan Administrator's consent need not be based on a
determination of Financial Hardship. The determination that the Member is
faced with a Financial Hardship and of the amount required to meet such
Financial Hardship which is not reasonably available from other resources
of the Member shall be made by the Plan Administrator in accordance with
uniform and non-discriminatory standards and policies which shall be
adopted by the Plan Administrator and consistently applied to each
application for a withdrawal pursuant to this Section 7.06(b)(iii). An
immediate and heavy financial need will be deemed to
39
<PAGE>
exist only with respect to: (1) expenses incurred or necessary for medical
care of the Member or the Member's spouse or any dependent of the Member
(as defined in Section 213(d) of the Code), (2) the purchase (excluding
mortgage payments) of a principal residence for the Member, (3) payment of
tuition and related educational fees for the next twelve (12) months of
post-secondary education for the Member, or the Member's spouse, children
or dependents, and (4) the need to prevent an eviction or mortgage
foreclosure on the Member's principal residence. If a Member has an
immediate and heavy financial need as described above, he may receive a
hardship withdrawal provided the Plan Administrator determines that
such Member is not able to meet such need from any other reasonably
available resources.
(iv) A distribution shall be considered as necessary to satisfy
an immediate and heavy financial need of the Member only if:
(A) The Member has obtained all distributions, other than
hardship distributions, and all nontaxable loans under all plans
maintained by the Employer;
(B) All plans maintained by the Employer provide that the
Member's Elective Deferrals (and Employee Contributions) will be
suspended for twelve months after the receipt of the hardship
distribution;
(C) The distribution is not in excess of the amount of an
immediate and heavy financial need (including amounts necessary to
pay any federal, state or local income taxes or penalties reasonably
anticipated to result from the distribution); and
(D) All plans maintained by the Employer provide that the
Member may not make Elective Deferrals for the Member's taxable year
immediately following the taxable year of the hardship distribution
in excess of the applicable limit under Section 402(g) of the Code
for such taxable year less the amount of such Member's Elective
Deferrals for the taxable year of the hardship distribution.
(c) A Member wishing to make a withdrawal shall make written
application to the Plan Administrator stating the amount he wishes to withdraw,
and such other information as the Plan Administrator may require. The Trustee
shall make payment to such Member of the amount the Plan Administrator
determines shall be withdrawn in accordance with the foregoing rules. The Plan
Administrator's determination shall be conclusive and binding on all persons.
(d) No forfeitures shall occur solely as a result of a Member making
a withdrawal pursuant to the provisions of this Section 7.06.
40
<PAGE>
(e) All withdrawals are subject to written spousal consent (in a form
which complies with Section 7.07(b)) in the case of a Member who has elected to
receive an annuity form of benefit payment pursuant to Option D of Section 7.07.
7.07 Methods and Timing of Payment.
-----------------------------
(a) Whenever a Member's Accounts become distributable pursuant to
this Section to such Member or his designated Beneficiary or other person,
distribution of the Accounts shall be made by the payment or commencement of
payments under such of the following options which have been selected by the
Employer in the Adoption Agreement and as such Member or his Beneficiary shall
have designated by a written election filed with the Plan Administrator within
ninety (90) days of his Annuity Starting Date provided that in the absence of
--------
such election validly made, the distribution shall be made pursuant to Option A.
Notwithstanding the foregoing, if a Member's aggregate vested account balances
are $3,500 or less, such Accounts shall be distributed pursuant to Option A.
Option A: One lump sum payment in cash or in kind or part in cash and part
--------
in kind.
Option B: Payments in cash or in kind in annual, quarterly or monthly
--------
installments over a period not exceeding one of the following
periods selected by the Member:
(i) the life expectancy of the Member;
(ii) the joint life and last survivor expectancy of the Member and
a Designated Beneficiary.
The amount of each payment shall be equal to the total amount in
the Accounts remaining to be distributed under this Option B to
such Member or his Beneficiary divided by the number of payments
remaining to be made under this Option B, inclusive of the current
payment.
Option C: Payments in cash or in kind in annual, quarterly or monthly
--------
installments over a period up to fifteen (15) years as selected by
the Member.
Option D: Purchase of an immediate nontransferable annuity contract which
--------
meets the requirements of Section 401(a) of the Code and the
regulations promulgated thereunder.
(b) If an unmarried Member elects to receive his accounts pursuant to
Option D, the normal form of annuity contract shall provide for payments to the
Member for life. If a married Member elects to receive his accounts pursuant to
Option D, the normal
41
<PAGE>
form of annuity contract shall provide for reduced payments for his life with
payments continuing after his death to his spouse for her life equal to at least
fifty percent (50%) but not more than one hundred percent (100%) of the amounts
payable during their joint lives.
The normal form of payment shall not apply if the Member has effectively
designated, within the ninety-day period ending on the Annuity Starting Date, an
optional form of annuity benefit payment in a writing which satisfies either of
the following conditions:
(i) (A) The Member's spouse consents in writing to such election;
(B) the election designates a form of benefit payment which may not be changed
without spousal consent (or the spouse expressly permits designations by the
Member without any further spousal consent); (C) the spouse's consent
acknowledges the effect of the election; and (D) the spouse's consent has been
witnessed by a Plan representative or a notary public; or
(ii) It is established to the satisfaction of the Plan Administrator
that the spouse's consent cannot be obtained because there is no spouse,
because the spouse cannot be located, or because of other circumstances
prescribed by regulations issued under Section 417(a)(2) of the Code.
Any consent by a spouse obtained under this Section 7.07(b) (or
establishment that the consent of a spouse may not be obtained) shall be
effective only with respect to such spouse. A consent that permits designations
by the Member without any requirement of further consent by such spouse must
acknowledge that the spouse has the right to limit consent to a specific form of
benefit, and that the spouse voluntarily elects to relinquish such right. A
Member may revoke an election of an optional form of benefit without the consent
of his spouse at any time prior to the Annuity Starting Date. The number of
revocations shall not be limited. No spousal consent obtained under this
provision shall be valid unless the Member has received notice as provided in
the paragraph below.
The Plan Administrator shall provide each Member no less than thirty (30)
days and no more than ninety (90) days prior to the Annuity Starting Date a
written explanation of (i) the terms and conditions of a qualified joint and
survivor annuity; (ii) the Member's right to make and the effect of an election
to waive the qualified joint and survivor annuity form of benefit; (iii) the
rights of a Member's spouse; and (iv) the right to make, and the effect of, a
revocation of a previous election to waive the qualified joint and survivor
annuity.
(c) Whenever during any Plan Year, the amount standing to the credit of a
Member's Accounts becomes distributable upon his retirement, disability or death
as provided in Sections 7.02 through 7.04, the Plan Administrator shall direct
the Trustee to distribute such Accounts within a reasonable time after the end
of the Plan Year in which such retirement, disability or death occurs. If the
amount standing to the credit of a Member's Accounts becomes distributable upon
a Member's termination of employment as provided in Section 7.05, the Plan
Administrator shall direct the Trustee to distribute such
42
<PAGE>
Accounts in accordance with the provisions of the Adoption Agreement.
Notwithstanding the foregoing, if a Member's aggregate vested account balances
to be distributed upon disability or severance under Section 7.03 or 7.05 are
greater than $3,500, such Accounts shall not be distributed in whole or in part
until the Member reaches the later of Normal Retirement Age or age 62, unless
the Member consents in writing to such earlier distribution. In the event the
Member has elected an annuity form of benefit payment pursuant to Option D, the
Member's spouse must also consent in writing to any distribution before the
Member reaches the later of Normal Retirement Age or age 62.
(d) In no event shall the distribution of a Member's Accounts, unless the
Member otherwise elects, begin later than the sixtieth (60th) day after the
close of the Plan Year in which the later of the following events occurs:
(i) the Member's Normal Retirement Age; or
(ii) the Member's termination of service with the Employer.
Notwithstanding anything to the contrary elsewhere herein, if the amount of the
payment required to commence on the date determined under this Section cannot be
ascertained by such date, such payment may be postponed as long as it is made no
later than sixty (60) days after the earliest date on which the amount of such
payment can be ascertained, and, if distribution is not to be made in a single
sum, is made retroactive to the date otherwise required by this Section.
Notwithstanding the foregoing, the failure of a Member and spouse to consent to
a distribution while a benefit is immediately distributable, within the meaning
of Section 7.07(b), shall be deemed to be an election to defer commencement of
payment of any benefit sufficient to satisfy this Section.
(e) Notwithstanding any other provision hereof, any part of a Member's
account balances which are payable to an alternate payee pursuant to the terms
of a Qualified Domestic Relations Order shall be paid in the amount, form, and
manner provided therein, and shall not be subject to any other provision of this
Article VII regarding distributions.
(i) The term "Qualified Domestic Relations Order" means any
judgment, decree, or order (including approval of a property settlement
agreement) which is made pursuant to a State domestic relations law (including
a community property law) and relates to the provision of child support,
alimony payments, or marital property rights to a spouse, former spouse,
child, or other dependent of a Member, and which satisfies all of the
following requirements:
(A) The order creates or recognizes the existence of an
alternate payee's right to, or assigns to an alternate payee the right to
receive all or a portion of the benefits payable with respect to the
Member under the Plan.
(B) The order clearly specifies the name and the last known
mailing address (if any) of the Member and the name and mailing address
of
43
<PAGE>
each alternate payee, the amount or percentage of the Member's account
balances to be paid by the Plan to each alternate payee, or the manner in
which such amount or percentage is to be determined, the number of
payments or period to which such order applies, and each plan to which
such order applies.
(C) The order does not require the Plan to provide any type or
form of benefit, or any option, not otherwise provided under the Plan,
does not require the Plan to provide benefits in excess of the Member's
account balances, and does not require the payment of benefits to an
alternate payee which are required to be paid to another alternate payee
under another order previously determined to be a Qualified Domestic
Relations Order. In the case of any payment before a Member has separated
from service, the order shall not fail to meet the first requirement of
this paragraph (C) solely because such order requires payment to the
alternate payee before the date on which the Member would have become
entitled to receive a benefit under the Plan, or in any form in which
benefits may be paid under the Plan other than in the form of a joint and
survivor annuity as defined with respect to the alternate payee and his
or her subsequent spouse.
(D) The order is entered on or after January 1, 1985, or the
order was entered prior to such date and the Plan Administrator is paying
benefits pursuant to such order on such date or has acknowledged in
writing prior to January 1, 1985 that the Plan will honor the order.
(ii) The Plan Administrator shall establish reasonable procedures to
determine the qualified status of domestic relations orders and to administer
distributions under such Qualified Domestic Relations Orders. Upon receipt by
the Plan Administrator of a domestic relations order, the Plan Administrator
shall promptly notify the Member and any other alternate payee of the receipt
of such order and the Plan's procedures for determining the qualified status
of such order. Within a reasonable period after receipt of such order, the
Plan Administrator shall determine whether such order is a Qualified Domestic
Relations Order and notify the Member and each alternate payee of such
determination. During the period in which the Plan Administrator is
determining whether the order is qualified (and during any subsequent legal
challenges to such determination), any amounts which would have been payable
to the alternate payee during such period shall be separately accounted for in
the Trust, which shall be paid to the appropriate parties if a determination
is made within eighteen (18) months after receipt of the order. If the issue
of qualification of the order is not resolved within eighteen (18) months
after receipt of the order, the segregated amounts (plus interest thereon, if
any) shall be paid to the person or persons who would have been entitled to
such amounts if there had been no order. Any subsequent determination with
respect to such order shall be applied prospectively only.
(iii) The term "alternate payee" means any spouse, child, or other
dependent of a Member who is recognized by a domestic relations order as
having a
44
<PAGE>
right to receive all, or a portion of, the benefits payable under the
Plan with respect to such Member.
7.08 Distribution Requirements.
-------------------------
(a) General Rules.
-------------
(i) The requirements of this Section 7.08 shall apply to any
distribution of a Member's interest and shall take precedence over any
inconsistent provisions of this Plan. Unless otherwise specified, the
provisions of this Section apply to calendar years beginning after December
31, 1984.
(ii) All distributions required under this Section shall be
determined and made in accordance with Section 401(a)(9) of the Code and the
proposed regulations promulgated thereunder, including the minimum
distribution incidental benefit requirement of Section 1.401(a)(9)-2 of the
proposed regulations.
(b) Required Beginning Date. The entire interest of a Member must be
-----------------------
distributed or begin to be distributed no later than the Member's Required
Beginning Date.
(c) Limits on Distribution Periods. As of the first Distribution
------------------------------
Calendar Year, distributions, if not made in a single sum, may only be made over
one of the following periods (or a combination thereof):
(i) the life of the Member,
(ii) the life of the Member and a Designated Beneficiary,
(iii) a period certain not extending beyond the life expectancy of
the Member, or
(iv) a period certain not extending beyond the joint and last
survivor expectancy of the Member and a Designated Beneficiary.
(d) Determination of Amount to be Distributed Each Year. If the Member's
---------------------------------------------------
interest is to be distributed in other than a single sum, the following minimum
distribution rules shall apply on or after the Required Beginning Date:
(i) If a Member's benefit is to be distributed over (A) a period not
extending beyond the life expectancy of the Member, or the joint life and last
survivor expectancy of the Member and the Member's Designated Beneficiary or
(B) a period not extending beyond the life expectancy of the Designated
Beneficiary, the amount required to be distributed for each calendar year,
beginning with distributions for the first Distribution Calendar Year, must at
least equal the quotient obtained by dividing the Member's benefit by the
Applicable Life Expectancy.
45
<PAGE>
(ii) For calendar years beginning before January 1, 1989, if the
Member's spouse is not the Designated Beneficiary, the method of distribution
selected must assure that at least fifty percent (50%) of the present value of
the amount available for distribution is paid within the life expectancy of
the Member.
(iii) For calendar years beginning after December 31, 1988, the
amount to be distributed each year, beginning with distributions for the first
Distribution Calendar Year, shall not be less than the quotient obtained by
dividing the Member's benefit by the lesser of (1) the Applicable Life
Expectancy, or (2) if the Member's spouse is not the Designated Beneficiary,
the applicable divisor determined from the table set forth in Q&A-4 of Section
1.401(a)(9)-2 of the proposed regulations. Distributions after the death of
the Member shall be distributed using the Applicable Life Expectancy in
Section 7.08(d)(i) above as the relevant divisor without regard to proposed
regulations Section 1.401(a)(9)-2.
(iv) The minimum distribution required for the Member's first
Distribution Calendar Year must be made on or before the Member's Required
Beginning Date. The minimum distribution for other calendar years, including
the minimum distribution for the Distribution Calendar Year in which the
Member's Required Beginning Date occurs, must be made on or before December 31
of that Distribution Calendar Year.
(v) If the Member's benefit is distributed in the form of an annuity
purchased from an insurance company, distributions thereunder shall be made in
accordance with the requirements of Section 401(a)(9) of the Code and the
proposed regulations promulgated thereunder.
(e) Death Distribution Provisions.
-----------------------------
(i) Distribution beginning before death. If the Member dies after
distribution of his interest has begun, the remaining portion of such interest
will continue to be distributed at least as rapidly as under the method of
distribution being used prior to the Member's death.
(ii) Distribution beginning after death. If the Member dies before
----------------------------------
distribution of his interest begins, distribution of the Member's entire
interest shall be completed by December 31 of the calendar year containing the
fifth anniversary of the Member's death except to the extent that an election
is made to receive distributions in accordance with (A) or (B) below:
(A) if any portion of the Member's interest is payable to a
Designated Beneficiary, distributions may be made over the life or over a
period certain not greater than the life expectancy of the Designated
Beneficiary commencing on or before December 31 of the calendar year
immediately following the calendar year in which the Member died;
46
<PAGE>
(B) if the Designated Beneficiary is the Member's surviving
spouse, the date distributions are required to begin in accordance with
(A) above shall not be earlier than the later of (1) December 31 of the
calendar year immediately following the calendar year in which the Member
died, and (2) December 31 of the calendar year in which the Member would
have attained age seventy and one-half (70-1/2).
If the Member has not made an election pursuant to Section 7.07(a)
by the time of his death, the Member's Designated Beneficiary must elect the
method of distribution no later than the earlier of (A) December 31 of the
calendar year in which distributions would be required to begin under this
Section, or (B) December 31 of the calendar year which contains the fifth
anniversary of the date of death of the Member. If the Member has no
Designated Beneficiary, or if the Designated Beneficiary does not elect a
method of distribution, distribution of the Member's entire interest must be
completed by December 31 of the calendar year containing the fifth anniversary
of the Member's death.
(iii) For purposes of (ii) above, if the surviving spouse dies after
the Member, but before payments to such spouse begin, the provisions of
subsection (ii), with the exception of subsection (ii)(B) therein, shall be
applied as if the surviving spouse were the Member.
(iv) For purposes of this Section 7.08(e), any amount paid to a
child of the Member will be treated as if it had been paid to the surviving
spouse if the amount becomes payable to the surviving spouse when the child
reaches the age of majority.
(v) For the purpose of this Section 7.08(e), distribution of a
Member's interest is considered to begin on the Member's Required Beginning
Date (or, if subsection (iii) above is applicable, the date distribution is
required to begin to the surviving spouse pursuant to subsection (ii) above).
If distribution in the form of an annuity irrevocably commences to the Member
before the Required Beginning Date, the date distribution is considered to
begin is the date distribution actually commences.
(f) Definitions
-----------
(i) Applicable Life Expectancy. The life expectancy (or joint and
--------------------------
last survivor expectancy) calculated using the attained age of the Member (or
Designated Beneficiary) as of the Member's (or Designated Beneficiary's)
birthday in the Applicable Calendar Year reduced by one for each calendar year
which has elapsed since the date life expectancy was first calculated. If life
expectancy is being recalculated, the Applicable Life Expectancy shall be the
life expectancy as so recalculated. The applicable calendar year shall be the
first Distribution Calendar Year, and if life expectancy is being recalculated
each succeeding calendar year. If annuity payments commence before the
Required Beginning Date, the applicable
47
<PAGE>
calendar year is the year such payments commence. If distribution is in the
form of an immediate annuity purchased after the Member's death with the
Member's remaining interest, the applicable calendar year is the year of
purchase.
(ii) Designated Beneficiary. The individual who is designated as
----------------------
the beneficiary under the Plan in accordance with Section 401(a)(9) of the
Code and the proposed regulations promulgated thereunder.
(iii) Distribution Calendar Year. A calendar year for which a
--------------------------
minimum distribution is required. For distributions beginning before the
Member's death, the first Distribution Calendar Year is the calendar year
immediately preceding the calendar year which contains the Member's Required
Beginning Date. For distributions beginning after the Member's death, the
first distribution calendar year is the calendar year in which distributions
are required to begin pursuant to subsection (e) above.
(iv) Life Expectancy. Life expectancy and joint and last survivor
---------------
expectancy are computed by use of the expected return multiples in Tables V
and VI of Section 1.72-9 of the Income Tax Regulations.
Life expectancies shall be recalculated annually only if
specifically elected by the Member (or spouse, in the case of distributions
described in subsection (e)(ii)(B) above) by the time distributions are
required to begin. Such election shall be irrevocable as to the Member (or
spouse) and shall apply to all subsequent years. The life expectancy of a
nonspouse beneficiary may not be recalculated.
(v) Member's benefit.
----------------
(A) The account balance as of the last valuation date in the
calendar year immediately preceding the Distribution Calendar Year
(valuation calendar year) increased by the amount of any contributions or
forfeitures allocated to the account balance as of dates in the valuation
calendar year after the valuation date and decreased by distributions
made in the valuation calendar year after the valuation date.
(B) For purposes of paragraph (A) above, if any portion of the
minimum distribution for the first Distribution Calendar Year is made in
the second Distribution Calendar Year on or before the Required Beginning
Date, the amount of the minimum distribution made in the second
Distribution Calendar Year shall be treated as if it had been made in the
immediately preceding Distribution Calendar Year.
(vi) Required beginning date.
-----------------------
48
<PAGE>
(A) General rule. The Required Beginning Date of a Member is
------------
the first day of April of the calendar year following the calendar year
in which the Member attains age seventy and one-half (70-1/2).
(B) Transitional rules. The Required Beginning Date of a Member
------------------
who attained age seventy and one-half (70-1/2) before January 1, 1988,
shall be determined in accordance with (1) or (2) below:
(1) Non-5-percent owners. The Required Beginning Date of a
--------------------
Member who is not a 5-percent owner is the first day of April of the
calendar year following the calendar year in which the later of
retirement or attainment of age seventy and one-half (70-1/2)
occurs.
(2) 5-percent owners. The Required Beginning Date of a
----------------
Member who is a 5-percent owner during any year beginning after
December 31, 1979, is the first day of April following the later of:
(i) the calendar year in which the Member
attained age seventy and one-half (70-1/2), or
(ii) the earlier of the calendar year with or within
which ends the Plan Year in which the Member becomes a
5-percent owner, or the calendar year in which the Member
retires.
The required beginning date of a Member who is not a 5-percent owner who
attained age 70-1/2 during 1988 and who has not retired as of January 1,
1989, is April 1, 1990.
(C) 5-percent owner. A Member is treated as a 5-percent owner
---------------
for purposes of this Section if such Member is a 5-percent owner as
defined in Section 416(i) of the Code (determined in accordance with
Section 416 but without regard to whether the Plan is top-heavy) at any
time during the Plan Year ending with or within the calendar year in
which such owner attains age sixty-six and one-half (66-1/2) or any
subsequent Plan Year.
(D) Once distributions have begun to a 5-percent owner under
this Section, they must continue to be distributed, even if the Member
ceases to be a 5-percent owner in a subsequent year.
(g) Notwithstanding the requirements set forth in the foregoing
provisions of this Section 7.08, and subject to the requirements of Section
7.04(a) and (b), distribution on behalf of any Member may be made in accordance
with a method of distribution which satisfies the following requirements
(regardless of when such distribution commences):
49
<PAGE>
(i) The distribution is one which would not have disqualified the
Plan under Section 401(a) as in effect prior to amendment by the Deficit
Reduction Act of 1984.
(ii) The distribution is in accordance with a method of distribution
designated by the Employee whose interest in the trust is being distributed
or, if the Employee was deceased, by a Beneficiary of such Employee.
(iii) Such designation was in writing, was signed by the
Employee or the Beneficiary, and was made before January 1, 1984.
(iv) The Employee had accrued a benefit under the Plan as of
December 31, 1983.
(v) The method of distribution designated by the Employee or the
Beneficiary specifies the time at which distribution will commence, the period
over which distributions will be made, and in the case of any distribution
upon the Employee's death, the beneficiaries of the Employee listed in order
of priority.
A distribution upon death will not be covered by this transitional rule unless
the information in the designation contains the required information described
above with respect to the distributions to be made upon the death of the
Employee.
For any distribution which commences before January 1, 1984, but
continues after December 31, 1983, the Employee or the Beneficiary to whom such
distribution is being made will be presumed to have designated the method of
distribution under which the distribution is being made if the method of
distribution was specified in writing and the distribution satisfies the
requirements in subsections (i) through (v) above.
If a designation is revoked, any subsequent distribution must satisfy the
requirements of Section 7.08 above and Section 401(a)(9) of the Code and the
proposed regulations thereunder. If a designation is revoked subsequent to the
date distributions are required to begin, the Plan must distribute by the end of
the calendar year following the calendar year in which the revocation occurs the
total amount not yet distributed which would have been required to have been
distributed to satisfy Section 401(a)(9) of the Code and the proposed
regulations thereunder, but for the Section 242(b) election. For calendar years
beginning after December 31, 1988, such distributions must meet the minimum
distribution incidental benefit requirements of Section 1.401(a)(9)-2 of the
proposed regulations. Any changes in the designation will be considered to be a
revocation of the designation. However, the mere substitution or addition of
another Beneficiary (one not named in the designation) under the designation
will not be considered to be a revocation of the designation, so long as such
substitution or addition does not alter the period over which distributions are
to be made under the designation, directly or indirectly (for example, by
altering the relevant measuring life). In the case in which an amount is
transferred or rolled
50
<PAGE>
over from one plan to another plan, the rules in Q & A J-2 and Q & A J-3 of the
proposed regulations under Section 401(a)(9) of the Code shall apply.
7.09 Discharge of Trustee's Obligation to Make Payments. Whenever the Trustee
--------------------------------------------------
is required to make any payment or payments to any person in accordance with the
provisions of this Article VII or Article VIII, the Plan Administrator shall
notify the Trustee in writing of such person's last known address as it appears
in the Plan Administrator's records; and the obligation of the Trustee, Plan
Administrator, and Employer to make such payment or payments shall be fully
discharged by mailing the same to the address specified by the Plan
Administrator.
7.10 Loans to Members. If an Employer has specified in its Adoption Agreement
----------------
that loans may be made pursuant to this Section 7.10, then upon written
application of a Member, the Plan Administrator may direct the Trustee to lend
to the Member such amount or amounts as the Plan Administrator may determine,
provided that the aggregate amount of all outstanding loans, including accrued
interest thereon, shall not exceed the lesser of (a) $50,000 reduced by the
excess (if any) of the highest outstanding balance of loans during the one year
period ending on the day before the loan is made, over the outstanding balance
of loans from the Plan on the date the loan is made, or (b) fifty percent (50%)
of the sum of the vested portion of the Member's Accounts. For the purpose of
the above limitation, all loans from all plans of the Employer and any Related
Employers are aggregated.
Each loan to Members shall meet the following requirements:
(i) Loans shall be made available to all Members on a reasonably
equivalent basis.
(ii) Loans shall not be made available to Highly Compensated Employees
(as defined in Section 414(q) of the Code) in an amount greater than the amount
made available to other Members.
(iii) Loans shall be evidenced by the promissory notes of the Members,
shall be adequately secured and shall bear a reasonable interest rate. No more
than fifty percent (50%) of the vested portion of the Member's Accounts may be
used as security for a loan.
(iv) In the event of default, foreclosure on the note and attachment of
security will not occur until a distributable event occurs under the Plan.
(v) Each loan shall by its terms require that repayment (principal and
interest) be amortized in level payments, not less frequently than quarterly,
over a period not extending beyond five (5) years from the date of the loan,
unless such loan is used to acquire any dwelling unit which within a reasonable
time is to be used (determined at the time such loan is made) as a principal
residence of the Member.
51
<PAGE>
(vi) No loans shall be made to a Member who is an Owner-Employee or a
shareholder-employee. For purposes of this requirement, a shareholder-employee
means an employee or officer of a Subchapter S corporation who owns (or is
considered as owning within the meaning of Section 318(a)(1) of the Code), on
any day during the taxable year of such corporation, more than five percent (5%)
of the outstanding stock of such corporation.
(vii) If a Member has elected to receive an annuity form of benefit
payment pursuant to Option D of Section 7.07, such Member must obtain the
consent of his spouse, if any, to the use of his Accounts as security for the
loan. Spousal consent shall be obtained no earlier than the beginning of the
ninety-day period that ends on the date on which the loan is to be so secured.
The consent must be in writing, must acknowledge the effect of the loan, and
must be witnessed by a Plan representative or notary public. Such consent shall
thereafter be binding with respect to the consenting spouse or any subsequent
spouse with respect to that loan. A new consent shall be required if the
Member's Accounts are used for renegotiation, extension, renewal, or other
revision of the loan.
Each loan made hereunder shall be deemed to be a separate investment and shall
be credited to a separate loan account for the benefit of the borrowing Member,
in which event all payments of interest and principal shall be credited to such
Member's account. If an Employer has specified in its Adoption Agreement that
Members may elect the investment of their accounts, then the borrowing Member's
other investments in the Trust shall be reduced in accordance with such Member's
instructions to the extent necessary to permit the establishment of the separate
loan account for such Member. Amounts credited to such Member's separate loan
account as a result of payments of interest and principal shall be reinvested as
soon as practicable in accordance with the Member's investment elections
pursuant to Article V. If an Employer has not specified in its Adoption
Agreement that Members may elect the investment of their accounts, then the Plan
Administrator shall reduce the borrowing Member's accounts in the general
investments of the Trust to the extent necessary to permit the establishment of
a separate loan account for such Member. Amounts credited to such Member's
separate loan account as a result of payments of interest and principal shall be
reinvested as soon as practicable by the Trustee in accordance with the
provisions of Section 10.03.
If any part or all of the amount standing to the account of a Member shall
become distributable to such Member or his Beneficiary while a loan to such
Member under this Section is outstanding, the Trustee may apply the amount of
such distribution in payment of the entire outstanding loan principal, whether
or not then due, and any interest theretofore accrued, before distributing the
balance, if any, to the Member or his Beneficiary.
Notwithstanding any other provision of this Plan, the portion of the Member's
vested account balance used as a security interest held by the Plan by reason of
a loan outstanding to the Member shall be taken into account for purposes of
determining the amount of the account balance payable at the time of death or
distribution, but only if the reduction is used as repayment of the loan. If
less than 100% of the Member's vested account balance (determined without regard
to the preceding sentence) is payable to the surviving spouse, then the account
balance shall be adjusted by first reducing the vested account balance by the
amount of the security used as repayment of the loan, and then determining the
benefit payable to the surviving spouse.
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ARTICLE VIII
------------
Amendment and Termination of Plan
---------------------------------
8.01 Amendment by Sponsor. The Employer delegates power to the Sponsor to
--------------------
amend this Plan at any time and from time to time, provided that:
(a) The duties or liabilities of the Trustee, Plan Administrator or the
Employer shall be increased only upon sixty (60) days' prior written notice to
the Trustee, Plan Administrator or the Employer respectively, unless such
amendment is made in order to comply with the requirements of the Code and
regulations and rulings of the Internal Revenue Service thereunder, or
applicable regulations of any other governmental authority; and
(b) No amendment shall cause or permit any assets of the Trust to be
diverted to purposes other than for the exclusive benefit of the eligible
Employees of the Employer which established the Trust or their Beneficiaries or
estates or would cause any reduction in the amount theretofore credited to any
Member or would cause or permit any portion of the assets of the Trust to revert
or become the property of the Employer.
8.02 Amendment by Employer. No Employer which has adopted this Plan by means
---------------------
of a Adoption Agreement shall have authority to amend the Plan in any way except
as provided in this Article VIII, nor shall any such amendment become effective
and binding upon the Trustee until a properly executed copy of such amendment
has been delivered to and accepted by the Trustee.
(a) Elective Provisions. An Employer may amend the elective provisions of
-------------------
the Adoption Agreement establishing its Trust at any time and from time to time
or discontinue or terminate the Trust by delivering to the Trustee a copy of an
amendment or discontinuance or termination certified by a duly authorized person
on behalf of the Employer; provided, however, that, except as provided in
--------
Section 1.02 and Article XII, the Employer shall have no power to amend or
terminate the Trust in such manner as would cause or permit (i) any of the
assets of the Trust to be diverted to purposes other than for the exclusive
benefit of the eligible Employees of the Employer or their Beneficiaries or
estates; (ii) any reduction in the amount theretofore credited to any Member;
(iii) any portion of the assets of the Trust to revert to or become the property
of the Employer; (iv) the elimination or reduction of an optional form of
benefit; and (v) the duties or liabilities of the Trustee to be increased
without its written consent. If the Employer amends any provision other than the
elective provisions of the Adoption Agreement for any reason, except as provided
in Section 8.02(b) and except to add certain model amendments published by the
Internal
53
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Revenue Service which specifically provide that their adoption will not
cause the Plan to be treated as individually designed, its Trust will be deemed
to be an individually designed plan and may no longer participate in a prototype
established under this Basic Plan Document.
(b) Permissible Employer Amendments. Notwithstanding the foregoing, the
-------------------------------
Employer will be permitted to amend the provisions of the Plan by adding
appropriate language to its Adoption Agreement if required to preserve the
qualified status of the Plan under any of the following circumstances:
(i) The Employer maintains or had maintained another qualified plan
(other than a standard plan established under this Basic Plan Document) and
wishes to provide particular provisions to define the method by which such
plan or plans shall be aggregated with this Plan for purposes of Sections 415
and/or 416 of the Code.
(ii) The Employer maintains another qualified plan (other than a
standard plan established under this Basic Plan Document) and wishes to
provide the minimum benefits required by Section 416 of the Code under such
other plan rather than under this Plan.
Any Plan containing such an amendment may not rely on the Sponsor's opinion
letter but must be submitted to the Internal Revenue Service as described in
Section 1.02.
8.03 Limitations on Vesting Amendments. Notwithstanding anything to the
---------------------------------
contrary elsewhere herein or in the Adoption Agreement, no amendment to the
vesting provisions specified in the Adoption Agreement shall deprive a Member of
his nonforfeitable rights to benefits accrued to the date of the amendment.
Further, if such vesting provisions are amended, or if the Plan is amended in
any way that directly or indirectly affects the computation of a Member's
nonforfeitable percentage, or if the Plan is deemed amended by an automatic
change to or from a top-heavy vesting schedule, each Member with at least three
(3) Years of Vesting Service with the Employer may elect, within a reasonable
period after the adoption of the amendment, to have his nonforfeitable
percentage computed under the Plan without regard to such amendment. The period
during which the election may be made shall commence with the date the amendment
is adopted and shall end on the latest of:
(i) sixty (60) days after the amendment is adopted;
(ii) sixty (60) days after the amendment becomes effective; or
(iii) sixty (60) days after the Member is issued written notice of
the amendment by the Employer.
No amendment to the Plan shall be effective to the extent that it has the effect
of decreasing a Member's accrued benefit. Notwithstanding the preceding
sentence, a Member's account balance may be reduced to the extent permitted
under Section 412(c)(8) of the Code. For purposes of this paragraph, a plan
amendment which has the effect of decreasing a Member's
54
<PAGE>
account balance or eliminating an optional form of benefit, with respect to
benefits attributable to service before the amendment, shall be treated as
reducing an accrued benefit. Furthermore, if the vesting schedule of the Plan is
amended, in the case of an Employee who is a Member as of the later of the date
such amendment is adopted or the date it becomes effective, the nonforfeitable
percentage (determined as of such date) of such Employee's employer-derived
accrued benefit will not be less than the percentage computed under the Plan
without regard to such amendment.
8.04 Termination of Plan. In the event of termination or partial termination
-------------------
(within the meaning of Section 411(d)(3) of the Code) by an Employer of the
Plan, or complete discontinuance of contributions thereto by the Employer, the
rights of all Members (or, in the case of a partial termination, the Members
affected thereby) to amounts theretofore credited to their Accounts under the
Plan shall be fully vested and nonforfeitable. Upon any such termination or
discontinuance, the Trustee shall hold the assets of the Trust in accordance
with the provisions of the Plan and distribute such assets from time to time to
Members entitled thereto in accordance with such provisions; provided that the
Plan Administrator may, in connection with such termination or discontinuance,
direct the Trustee to apply the amount standing to the credit of a Member's
Accounts for his benefit, pursuant to one or more options specified and selected
in accordance with Section 7.07, within a reasonable time after such termination
or discontinuance. In the event that the Employer shall terminate the Trust at
any time prior to the complete distribution of all property held by the Trustee
pursuant to such provisions, the Trustee shall (a) reduce to cash all or any
part of the Trust; (b) pay the liabilities, if any, of the Trust; (c) value the
remaining assets of the Trust as of the date of termination and adjust Members'
account balances in the same manner as provided in Article V; and (d) distribute
the assets of the Trust in cash or in kind or partly in cash and partly in kind
to and among the Members in liquidation in proportion to the amounts standing to
the credit of their respective accounts under the Trust as of the termination
date; provided that no person in the event of termination shall be required to
accept distribution in any form other than cash.
8.05 Merger or Consolidation. The Plan shall not be merged or consolidated
-----------------------
with any other plan or trust, nor shall the assets or liabilities accrued under
the Plan be transferred to any other plan or trust, unless the benefit under
such successor plan or trust, if it were to terminate immediately after such
merger, consolidation or transfer, of each Member under the Plan would be at
least as great as the benefit to which such Member would have been entitled had
the Plan terminated immediately prior to such merger, consolidation or transfer.
The foregoing limitation shall be applied in accordance with regulations
promulgated under Section 414(1) of the Code.
8.06 Transfer From Other Plans. With the approval of the Trustee, the Employer
-------------------------
may have assets of any other plan maintained by it, or by a predecessor employer
identified in the Adoption Agreement, which satisfies the requirements of
Section 401(a) of the Code transferred to the Trust and consolidated with assets
of this Plan. Any such transfer shall be accompanied by the transfer of such
existing records and information as determined by the Trustee to be necessary
for the proper administration of this Plan.
55
<PAGE>
8.07 Termination of Trust. The Trust shall in any event terminate whenever all
--------------------
property under the Trust held by the Trustee shall have been distributed in
accordance with the terms of the Plan.
ARTICLE IX
----------
Plan Administration
-------------------
9.01 Plan Administrator. For purposes of ERISA, each Employer shall serve as
------------------
the "Plan Administrator" with respect to the Plan of said Employer, unless the
Employer shall specifically designate an individual or individuals (who may also
be the Trustee) to act as Plan Administrator. The appointment of such individual
or individuals shall become effective upon acceptance of such appointment, and
shall continue until resignation or removal by the Employer. The Trustee shall
accept and may rely upon a certification by the Employer as to the identity of
the Plan Administrator.
9.02 Powers of Plan Administrator. The Plan Administrator is hereby vested
----------------------------
with all powers and authority necessary in order to carry out its duties and
responsibilities in connection with the administration of the Plan as herein
provided, and is authorized to make such rules and regulations as it may deem
necessary to carry out the provisions of said Plan. The Plan Administrator shall
determine any question arising in the administration, interpretation and
application of the Plan, including any question submitted by the Trustee on a
matter necessary for it properly to discharge its duties and the decision of the
Plan Administrator shall be conclusive and binding on all persons.
9.03 Action by Plan Administrator. If there is more than one individual acting
----------------------------
as Plan Administrator then the Plan Administrator shall act by a majority of
their number at the time in office and such action may be taken either by vote
at a meeting or in writing without a meeting. The Plan Administrator may by such
majority action authorize any one or more of their number to execute any
document or documents or to take any other action on behalf of the Plan
Administrator, and in such event any one of their number may certify in writing
to any person the taking of such action and the name or names of the individual
so authorized, including himself. Any such person shall be protected in
accepting and relying upon any such document or certificate and is released from
inquiry into the authority of any of such individuals.
9.04 Discretionary Action. Wherever under the provisions of this Agreement the
--------------------
Plan Administrator is given any discretionary power or powers, such power or
powers shall not be exercised in such manner as to cause any discrimination in
favor of or against any Employee or class of Employees. Any discretionary action
taken by the Plan Administrator hereunder shall be consistent to the maximum
extent practicable with any prior discretionary action taken by it under similar
circumstances and to this end the Plan Administrator shall keep a record of all
discretionary action taken by them under any provision hereof.
56
<PAGE>
9.05 Employment of Agents. The Plan Administrator may employ agents,
--------------------
including, but not limited to, investment counsel, custodians, accountants or
attorneys, to perform such services and duties in connection with the
administration of the Trust as they may direct. The compensation of such agents
shall be an expense chargeable to the Employer in accordance with Section 10.13.
The Plan Administrator shall be fully protected in acting upon the advice of any
such agent, in whole or in part, and shall not be liable for any act or omission
of any such agent, the Plan Administrator's only duty being to use reasonable
care in the selection of any such agent.
9.06 Indemnification of Plan Administrator. If the Plan Administrator is not
-------------------------------------
the Employer, the Employer shall indemnify and hold harmless the Plan
Administrator from any and all claims, loss, damages, expenses (including
reasonable counsel fees approved by the Employer) and liability (including any
reasonable amounts paid in settlement with the Employer's approval), arising
from any act or omission of such Plan Administrator, except when the same is
judicially determined to be due to the wilful misconduct or gross negligence of
such Plan Administrator.
9.07 Claims Procedure.
-----------------
(a) All claims for benefits or for determination of the qualified status
of a domestic relations order under this Plan shall be filed in writing with the
Plan Administrator in accordance with such procedures as the Plan Administrator
shall reasonably establish.
(b) The Plan Administrator shall, within ninety (90) days of submission
of a claim, provide adequate notice in writing to any claimant whose claim has
been denied. Such notice shall contain the specific reason or reasons for the
denial and references to specific Plan provisions on which the denial is based.
The Plan Administrator will also provide the claimant with a description of any
material or information which is necessary in order for the claimant to perfect
his claim and an explanation of why such material or information is necessary.
If special circumstances require an extension of time for processing the claim,
the Plan Administrator shall furnish the claimant a written notice of such
extension prior to the expiration of the ninety (90) day period. The extension
notice shall indicate the reasons for the extension and the expected date for a
final decision, which date shall not be more than one hundred and eighty (180)
days from the initial claim.
(c) The Plan Administrator shall, upon written request by a claimant
submitted to the Plan Administrator within sixty (60) days of the claimant's
receipt of the notice that his claim had been denied, afford a reasonable
opportunity to such claimant, for a full and fair review by the Plan
Administrator of the decision denying the claim. The Plan Administrator will
afford the claimant the opportunity to review pertinent documents and to submit
issues and comments in writing. The claimant shall have the right to be
represented.
(d) The Plan Administrator shall, within sixty (60) days of receipt of a
request for a review, render a written decision on the review. If special
circumstances require extra time for the Plan Administrator to review the
decision, the Plan Administrator
57
<PAGE>
will attempt to complete the review as soon as practicable, and in no event will
the Plan Administrator take more than one hundred and twenty (120) days to send
the claimant a written notice of the decision on review.
ARTICLE X
---------
Establishment of Trust and
Rights and Duties of Trustee
----------------------------
10.01 Establishment of Trust. The Employer by the execution of the Adoption
----------------------
Agreement establishes a retirement plan trust for the benefit of its eligible
Employees, to receive contributions made under the Plan.
(a) If the Plan is established under an Adoption Agreement which names an
individual or individuals as Trustee, there shall be any number of Trustees of
the Trust any or all of whom may be officers or employees of the Employer or any
other corporation or individuals. The Trustee(s) shall be appointed by the
Employer.
(b) If the Plan is established under an Adoption Agreement which names a
bank or qualified financial institution as Trustee, the Trustee shall be such
bank or qualified financial institution as may be named as Trustee in the
Adoption Agreement.
10.02 Powers of Trustee. It shall be the duty of the Trustee to receive all
-----------------
contributions which shall be made to the Trust and, subject to the provisions of
Article V relating to Members' investment directions and this Article, to hold,
invest and reinvest such funds in the Trust, and to make payments therefrom in
accordance with the written directions of the Plan Administrator. The Trustee
shall have no responsibility for the correctness under the terms of the Plan or
Trust of any written directions which it receives from the Plan Administrator.
10.03 Investments. The Trustee shall invest and reinvest the funds of the
-----------
Trust and keep the same invested in Permissible Investments, without distinction
between principal and income, in accordance with the investment directions
submitted by the Members pursuant to Article V, if applicable, and otherwise in
its own discretion. Unless the Member otherwise directs, earnings or other
proceeds generated by a Permissible Investment shall be reinvested in accordance
with such uniform procedure as may be established with respect to such
Permissible Investment. If any investment directions are not received from the
Plan Administrator as required, or if received, are unclear in the opinion of
the Trustee or its agent, all or a portion of the assets of the Trust may be
held uninvested without liability for loss of income or appreciation and without
liability for interest, pending receipt of proper orders or clarification, or
such assets may be invested on an interim basis in such short-term liquid
Permissible Investments as are selected by the Trustee on a uniform basis for
such purpose.
58
<PAGE>
10.04 Method of Holding and Selling Securities. The Trustee may keep any or
----------------------------------------
all securities or other property in the name of some other person, firm or
corporation or in its own name without disclosing fiduciary capacity. The
Trustee may sell at public auction or by private contract, redeem, or otherwise
realize upon, any securities, investments or other property forming a part of
the Trust and for such purposes may execute such instruments and writings and do
such things as it shall deem proper.
10.05 Exercise of Voting Rights. The Trustee is hereby authorized to vote any
-------------------------
stock, bonds or other securities of any corporation, association or trust at any
time comprising the Trust or otherwise consent to or request any action on the
part of such corporation, association or trust, and to give general or special
proxies or powers of attorney, with or without power of substitution, and to
participate in reorganizations, recapitalizations, consolidations, mergers and
similar transactions with respect to such securities; to deposit such stocks or
other securities in any voting trust, or with any protective or like committee,
or with a trustee, or with depositaries designated thereby; and generally to
exercise any of the powers of an owner with respect to such stocks or other
securities or property comprising the Trust which the Trustee deems to be for
the best interests of the Trust to exercise.
10.06 Power to Borrow. When instructed by the Plan Administrator, the Trustee
---------------
is hereby authorized to borrow money for the purposes of the Trust upon such
terms and conditions as the Plan Administrator may determine, and for any amount
so borrowed to issue the promissory note of the Trustee and to secure the
repayment thereof by pledge, mortgage or hypothecation of all or any part of the
property of the Trust, and no person loaning money to the Trustee shall be bound
to see to the application of the money loaned or to inquire into the validity of
any such borrowing.
10.07 Reliance on Trustee as Owners. No person dealing with the Trustee shall
-----------------------------
be required to take any notice of this Agreement, but all persons so dealing
shall be protected in treating the Trustee as the absolute owner with full power
of disposition of all the property of the Trust, and all persons dealing with
the Trustee are released from inquiry into the decision or authority of the
Trustee and from seeing to the application of the property paid or delivered to
the Trustee.
10.08 Liquidation of Assets. The Trustee shall not be required to make any
---------------------
payments hereunder in excess of the net realizable value of the assets of the
Trust at the time of such payment. The Trustee shall not be required to make any
payments in cash unless there shall be in the Trust at the time an amount of
cash sufficient for the purpose. In case of such deficiency in cash, the Trustee
shall take such action as to the disposition of securities or other property
forming a part of the Trust as will provide the amount of cash necessary for
such payments.
10.09 Evidence on Which Trustee May Act. In taking any action or determining
---------------------------------
any fact or question which may arise under the Trust, the Trustee may, with
respect to the affairs of the Employer or its Employees, rely upon any statement
by the Employer with respect thereto. In the event that any dispute may arise
regarding the payment of any sums or
59
<PAGE>
regarding any act to be performed by the Trustee, the Trustee may in its sole
discretion retain such payment or postpone the performance of such act until
actual adjudication of such act shall have been made in a court of competent
jurisdiction, or until it shall have been indemnified against loss to its
satisfaction; provided, however, that in the event of any such dispute, the
Trustee may rely upon and act in accordance with any directions received from
the Plan Administrator.
10.10 Action by Individual Trustees. If there is more than one Trustee, then
-----------------------------
the Trustees shall act by a majority of their number at the time in office and
such action may be taken either by vote at a meeting or in writing without a
meeting. The Trustees may by such majority action authorize any one or more of
their number to execute any document or documents or to take any other action on
behalf of the Trustees, and in such event any one of the Trustees may certify in
writing to any person the taking of such action and the name or names of the
Trustee or Trustees so authorized, including himself. Any such person shall be
protected in accepting and relying upon any such document or certificate and is
released from inquiry into the authority of any of the Trustees.
10.11 Records and Accounting. The Trustee shall keep accurate and detailed
----------------------
records of its transactions hereunder, and all its accounts, books and records
relating thereto shall be open at all reasonable times to the inspection of the
Employer and its authorized representatives. The Trustee shall render in
writing, at least once each twelve (12) months, accounts of its transactions
under the Trust to the Employer and the Employer may approve such accounts of
the Trustee by an instrument in writing delivered to the Trustee. In the absence
of the filing in writing with the Trustee by the Employer of exceptions or
objections to any such account within sixty (60) days after the receipt by the
Employer of any such account, the Employer shall be deemed to have approved such
account; and in such case, or upon the written approval of the Employer of any
such account, the Trustee shall be released, relieved and discharged by the
Employer with respect to all matters and things set forth in such account. In
any proceeding instituted by the Trustee or the Employer respecting an
accounting, only the Employer and/or the Trustee shall be the necessary parties.
The Trustee shall from time to time make such other reports and furnish such
other information concerning the Trust to the Employer as it may in writing
reasonably request.
10.12 Payment of Taxes. Upon direction of the Employer, the Trustee shall pay
----------------
out of the Trust any and all taxes of any and all kinds, including without
limitation property taxes and income taxes levied or assessed under existing or
future laws upon or in respect of the Trust or any monies, securities or other
property forming a part thereof or the income therefrom subject to the terms of
any agreements or contracts made with respect to trust investments which make
other provision for such tax payments. The Trustee may assume that any taxes
assessed on or in respect of the Trust or its income are lawfully assessed
unless the Employer shall in writing advise the Trustee that in the opinion of
counsel for the Employer which established the Trust such taxes are or may be
unlawfully assessed. In the event that the Employer shall so advise the Trustee,
the Trustee will, if so requested in writing by the Employer which established
the Trust, contest the validity of such taxes in any manner deemed appropriate
by the Employer or its counsel but at the expense of the Trust;
60
<PAGE>
or the Employer may itself contest the validity of any such taxes at the expense
of the Trust and in the name of the Trustee; and the Trustee agrees to execute
all documents, instruments, claims and petitions necessary or advisable in the
opinion of the Employer or its counsel for the refund, abatement, reduction or
elimination of any such taxes.
10.13 Compensation and Expenses. If the Trustee is a bank or other financial
-------------------------
institution other than an Employer, the Trustee shall be entitled to reasonable
compensation for its services. The rate of compensation as initially agreed upon
with the Employer shall continue in effect until written notice by the Trustee
of any change therein. Unless otherwise determined by the Employer, any
individual Trustees shall serve without compensation for their services as such.
Except as otherwise provided in Section 5.03A or Section 5,08B, whichever is
applicable, all expenses of the Trustee and Plan Administrator may be paid by
the Employer in its sole discretion and unless or until so paid shall constitute
a charge upon the Trust. Such expenses shall include any expenses incident to
the functioning of the Plan and Trust, including, but not limited to, attorneys'
fees and the compensation of other agents, accounting and clerical charges,
expenses, if any, of being bonded as required by ERISA, and other costs of
administering the Plan and Trust.
10.14 Resignation or Removal of Trustee. Any Trustee acting hereunder may
---------------------------------
resign at any time upon written notice to the Employer and to any remaining
Trustees, and the Employer may remove any Trustee at any time upon written
notice to such Trustee and any remaining Trustees. If any Trustee shall die,
resign, be removed or for any other reason cease to be Trustee, the Employer
shall appoint a successor Trustee or Trustees. In the absence of such
appointment, (a) the remaining Trustee or Trustees, if any, shall exercise all
of the powers of the Trustee or (b) if there are no remaining Trustees, the
prior Trustee shall continue to serve until the assets of the Trust have been
transferred to any qualified financial institution selected by such prior
Trustee to act as interim Trustee. The appointment of a successor Trustee shall
be effective upon written notification to the Employer of the acceptance of such
appointment.
10.15 Indemnification of Trustee. The Employer shall indemnify and hold
--------------------------
harmless any Trustee from any and all claims, loss, damages, expenses (including
reasonable counsel fees approved by the Employer) and liability (including any
reasonable amounts paid in settlement with the Employer's approval), arising
from any act or omission of such Trustee, (including, without limitation, any
act or omission which results from a direction given by the Plan Administrator
or the Employer or from any service provider to the Plan) except when the same
is judicially determined to be due to the gross negligence or wilful misconduct
of such Trustee.
10.16 Successor to Institutional Trustee. Any entity into which an
----------------------------------
institutional Trustee may merge or with which it may be consolidated or any
entity resulting from any such merger or consolidation shall be the successor of
such institutional Trustee hereunder without the necessity for execution or
filing of any additional instrument or the performance of any further act.
61
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10.17 Responsibilities of Trustee. The Trustee shall be responsible only for
---------------------------
the management and disbursement of amounts actually contributed to the Trust.
The Trustee shall have no responsibility for determining the correctness of the
amount of any contributions, or for the failure of an Employer to make the
contributions provided for in the Adoption Agreement, for the correctness of any
disbursement made, or other action taken, pursuant to the written directions of
the Plan Administrator, or for any act or omission of any service provider to
the Plan.
10.18 Allocation and Delegation of Responsibilities. The named fiduciary with
---------------------------------------------
respect to the Plan and Trust within the meaning of Section 402 of ERISA shall
be the Plan Administrator. The responsibilities of the Employer, the Plan
Administrator, the Investment Manager and Trustee shall be allocated as provided
herein and in the Adoption Agreement, and each shall have only those
responsibilities and obligations that are specifically imposed upon him by this
Plan and the Adoption Agreement. It is intended that each such person shall be
responsible for the proper exercise of his own powers, duties, responsibilities
and obligations under the Plan and shall not be responsible for any act or
omission of any other person. Each such person shall be entitled to delegate all
or any part of his responsibilities and obligations to any other person or
entity. In the event of any such delegation, (a) the person making such
delegation shall not be liable for any act or omission of the person to whom the
responsibility has been delegated as long as the selection and retention of such
person is prudent and (b) the person to whom the powers and obligations are
delegated shall be responsible only for the proper exercise of the powers,
duties, responsibilities and obligations that have been specifically delegated
to him.
10.19 Investment Manager. The Employer from time to time may appoint one or
------------------
more Investment Managers (as that term is defined in Section 3(38) of ERISA) to
manage (including the power to acquire and dispose of) all or any portion of the
assets of the Trust and such Investment Manager (or any designee thereof) may
also act as custodian of assets of the Trust. The Employer shall enter into a
written management agreement with the Investment Manager and shall retain the
right to remove and discharge the Investment Manager by written notice to the
Investment Manager and the Trustee. The Investment Manager shall be entitled to
reasonable compensation for its services and such compensation shall be an
expense payable in accordance with Section 10.13. The rate of compensation as
initially agreed upon with the Employer shall continue in effect until written
notice by the Investment Manager of any change therein. The Employer shall
notify the Trustee of the appointment of any Investment Manager by delivery to
the Trustee of an executed copy of the agreement under which such Investment
Manager was appointed together with a written acknowledgment by such Investment
Manager that it is (a) a fiduciary with respect to the Plan, (b) bonded as
required by ERISA, and (c) is either (i) registered as an investment advisor
under the Investment Advisers Act of 1940, or (ii) a bank as defined in such
Act, or (iii) an insurance company qualified to perform investment management
services under the laws of more than one State of the United States.
The Investment Manager shall have the authority to exercise all of the powers
of the Trustee hereunder with respect to assets under its control but only to
the extent that such
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powers relate to the investment of such assets. The Trustee shall carry out the
written instructions of the Investment Manager with respect to the management
and investment of the assets of the Trust and shall not incur any liability on
account of its compliance with such instructions. The Trustee shall not incur
any liability on account of its failure to exercise any of the powers delegated
to the Investment Manager because of the failure of such Investment Manager to
give instructions for the management of the assets under the control of such
Investment Manager. The Trustee shall be under no duty to question the
Investment Manager, nor to review any securities or other property acquired or
retained at the direction of the Investment Manager, nor to make any suggestions
to the Investment Manager in connection therewith.
ARTICLE XI
----------
The Employer
------------
11.01 No Contract of Employment. The Plan shall not be construed as creating
-------------------------
any contract of employment between the Employer which established the Plan and
any Member, eligible Employee, or other person, and nothing herein contained
shall give any person the right to be retained in the employ of the Employer or
otherwise restrain the Employer's right to deal with its employees, including
Members and eligible Employees, and their hiring, discharge, layoff,
compensation, and all other conditions of employment in all respects as though
the Plan did not exist.
11.02 No Contract to Maintain Plan. An Employer, by the establishment of the
----------------------------
Plan, shall not be deemed to have entered into an agreement to maintain the Plan
or to make any future contributions thereto or reimbursement of expenses
incurred thereunder. Each contribution by an Employer to its Plan shall be
voluntary, and an Employer shall have the right to suspend payment of its
contributions, and no Member or any other person shall have any cause or right
of action against an Employer by reason of failure by the Employer to make
contributions to the Trust, or by reason of any action by the Employer in
terminating the Plan.
11.03 Liability of an Employer. Subject to any Employer's agreement to
------------------------
indemnify the Plan Administrator and/or individual Trustees as provided in
Sections 9.06 and 10.15 and except as otherwise required by applicable federal
law, neither the Employer nor any person acting in behalf of the Employer shall
be liable for any act or omission on the part of a Plan Administrator selected
by the Employer or any Trustee, or for any act performed or the failure to
perform any act by any person with respect to the Plan or the Trust, the
Employer's only duty being to use reasonable care in the selection of the Plan
Administrator and Trustee.
11.04 Action by an Employer. Whenever under the terms of the Plan or Trust an
---------------------
Employer (other than a Self-Employed Individual) is permitted or required to
take any action, such action shall be taken by the Board of Directors of the
Employer, or by any duly
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authorized officer or partner of the Employer. In such
event any such officer or partner may certify to the Trustee or any other person
the taking of such action and the name or names of the officers or partners so
authorized, including himself. The execution of any direction, document, or
certificate in behalf of an Employer by any of its officers or partners shall
constitute his certification of his authority with respect thereto, and the
Trustee, or other person shall be protected in accepting and relying upon any
such direction, document, or certificate and is released from inquiry into the
authority of any officer or partner of the Employer.
11.05 Successor to Business of an Employer. Unless the Plan be sooner
------------------------------------
terminated, a successor to the business of the Employer, by whatever form or
manner resulting, may continue the Employer's Plan by executing an appropriate
supplementary agreement, and such successor shall ipso facto succeed to all the
rights, powers and duties of the Employer thereunder. The employment of any
Employee who has continued in the employ of such successor shall not be deemed
to have been terminated or severed for any purposes hereunder.
11.06 Dissolution of the Employer. In the event that the Employer is
---------------------------
dissolved by reason of bankruptcy or insolvency or otherwise, without any
provision being made for the continuance of its Plan by a successor to the
business of the Employer, each Plan Member shall be fully vested, and the
Trustee shall proceed in the same manner as though the Plan had been terminated
by such Employer as provided in Section 8.04.
11.07 Plan Covering Owner-Employee.
-----------------------------
(a) If contributions or benefits are provided under the Plan for one or
more Owner-Employees who control both an Employer and one or more other trades
or businesses, the Plan and the plan established for the other trades or
businesses must, when looked at as a single plan, satisfy Sections 401(a) and
(d) of the Code for the employees of the Employer and all such other trades or
businesses.
(b) If contributions or benefits are provided under the Plan for one or
more Owner-Employees who control one or more other trades or businesses, the
employees of the other trades or businesses must be included in a plan which
satisfies Sections 401(a) and (d) of the Code and which provides contributions
and benefits not less favorable than provided for Owner-Employees under the
Plan.
(c) If a Member is covered as an Owner-Employee under the plans of two or
more trades or businesses which are not controlled and the Member controls a
trade or business, then the contributions or benefits of the employees under the
plan of the controlled trade or business must be as favorable as those provided
for the Owner-Employee under the most favorable plan of the trade or business
which is not controlled.
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(d) For purposes of paragraphs (a), (b) and (c), an Owner-Employee, or
two or more Owner-Employees, will be considered to control a trade or business
if the Owner-Employee, or two or more Owner-Employees together:
(i) own the entire interest in an unincorporated trade or business,
or
(ii) in the case of a partnership, own more than fifty percent (50%)
of either the capital interest or the profits interest in the partnership.
For purposes of this paragraph (d), an Owner-Employee, or two or more
Owner-Employees shall be treated as owning any interest in a partnership which
is owned, directly or indirectly, by a partnership which such Owner-Employee, or
such two or more Owner-Employees, are considered to control within the meaning
of the preceding sentence.
ARTICLE XII
-----------
Limitation on Allocations
-------------------------
12.01 (This Section applies only to a Member who does not participate in, and
has never participated in, any other qualified plan maintained by the Employer,
a welfare benefit fund, as defined in Section 419(e) of the Code, maintained by
the Employer, or an individual medical account, as defined in Section 415(1)(2)
of the Code, maintained by the Employer which provides an Annual Addition as
defined in Section 12.05.)
(a) The amount of the Annual Additions which may be allocated under the
Plan to the Member's accounts for any Plan Year shall not exceed the Maximum
Permissible Amount. If the Employer contribution that would otherwise be
contributed or allocated to the Member's accounts would cause the Annual
Additions for the Plan Year to exceed the Maximum Permissible Amount, the amount
contributed or allocated shall be reduced so that the Annual Additions for the
Plan Year will equal the Maximum Permissible Amount.
(b) Prior to determining the Member's Compensation for the Limitation
Year, the Employer may determine the Maximum Permissible Amount for a Member on
a basis of a reasonable estimation of the Member's Compensation for the
Limitation Year, uniformly determined for all Members similarly situated. As
soon as administratively feasible after the end of the Limitation Year, the
Maximum Permissible Amount will be determined on the basis of the Member's
actual Compensation for the Limitation Year. If, as a result of allocation of
forfeitures or a reasonable error in estimating a Member's Compensation, the
Annual Additions under the Plan on behalf of a Member is to be reduced as of any
Allocation Date, such reduction shall be made in the following order:
(i) The Member's voluntary nondeductible contributions be
reduced and the full amount of such reduction shall be returned to him in
cash;
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(ii) The Elective Deferrals allocated to his Elective Deferral
Account shall be reduced;
(iii) The Matching Contributions and forfeitures allocated to
his Matching Account shall be reduced; and
(iv) The Employer Contributions and forfeitures allocated to his
Employer Account shall be reduced.
(c) Any reduction required pursuant to clauses (ii) and (iii) of
subsection (b) shall be held in a suspense account and applied to reduce the
Member's Elective Deferrals and Matching Contributions for the next Limitation
Year. Any reduction required pursuant to clause (iv) of subsection (b) shall be
reallocated to other Members' Accounts in accordance with the provisions of
Section 5.07B to the extent that such allocations do not cause the Annual
Additions to any such other Members' accounts to exceed the lesser of the
Maximum Permissible Amount or any other limitation provided in the Plan. If a
Member is not covered by the Plan at the end of the Limitation Year, the
reduction required by clauses (ii) and (iii) of subsection (b) shall be
allocated to a suspense account as a forfeiture. To the extent that the
reduction in clause (iv) of subsection (b) cannot be allocated to other Members'
Accounts, it shall be allocated to a suspense account as a forfeiture. All
amounts allocated to a suspense account shall be held therein until the next
succeeding date on which forfeitures could be applied under the Plan. All
amounts held in such suspense account during any Limitation Year shall be
allocated to Members' Accounts before any Employer contributions and any Member
contributions may be made to the Plan for such Limitation Year. In the event of
termination of the Plan the suspense account shall revert to the Employer to the
extent it cannot be allocated to any Member's Account. If a suspense account is
in existence at any time during the Plan Year, it shall not participate in the
allocation of the Trust's investment gains and losses pursuant to Section
5.04A(a) or Section 5.09B, whichever is applicable. 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 reallocated to Members' Accounts before
any Employer or any Employee contributions may be made to the Plan for that
Limitation Year. Excess amounts may not be distributed to Members or former
Members.
(d) Notwithstanding any other provision in subsections (a) through (c),
the Employer shall not contribute any amount that would cause an allocation to
the suspense account as of the date the contribution is allocated. If the
contribution is made prior to the date as of which it is to be allocated, then
such contribution shall not exceed an amount that would cause an allocation to
the suspense account if the date of contribution were an Allocation Date.
12.02 (This Section applies only to a Member who, in addition to the Plan, is
covered during any Limitation Year under another qualified regional prototype
defined contribution plan maintained by the Employer, a welfare benefit fund, as
defined in Section 419(e) of the Code, maintained by the Employer, or an
individual medical account, as defined in Section
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415(1)(2) of the Code, maintained by the Employer which provides an Annual
Addition as defined in Section 12.05.)
(a) The Annual Additions which may be allocated under the Plan to any
Member's accounts for any Limitation Year shall not exceed the Maximum
Permissible Amount reduced by the Annual Additions previously credited to such
Member's accounts under the other plans or welfare benefit funds for the same
Limitation Year.
If the Annual Additions with respect to the Member under such other
defined contribution plans, welfare benefit funds and individual medical
accounts are less than the Maximum Permissible Amount, and the Employer
contribution that would otherwise be contributed or allocated to the Member's
accounts under this Plan would cause the Annual Additions for the Limitation
Year to exceed this limitation, the amount contributed or allocated shall be
reduced so that the Annual Additions under all such plans, funds and individual
medical accounts for the Limitation Year will equal the Maximum Permissible
Amount. If the Annual Additions with respect to such Member under such other
defined contribution plans, welfare benefit funds and individual medical
accounts in the aggregate are equal to or greater than the Maximum Permissible
Amount, no amount may be contributed or allocated to the Member's accounts under
the Plan for the Limitation Year.
(b) If, as a result of allocation of forfeitures or a reasonable error in
estimating a Member's compensation (under a method uniformly determined for all
Members similarly situated), a Member's Annual Additions under this Plan and
such other plans would result in an Excess Amount for a Limitation Year, the
Excess Amount will be deemed to consist of the Annual Additions last allocated,
except that Annual Additions attributable to a welfare benefit fund or an
individual medical account will be deemed to have been allocated first
regardless of the actual Allocation Date. If an Allocation Date of the Plan
coincides with an Allocation Date of any other defined contribution plan
described in subsection (a), the amount of Annual Additions to be allocated on
behalf of a Member under the Plan as of such date shall be an amount equal to
the product of the amount to be allocated under the Plan without regard to this
Article multiplied by the lesser of one (1) or a fraction, the numerator of
which is the amount described in subsection (a) during the Limitation Year and
the denominator of which is the amount that would otherwise be allocated on this
Allocation Date under all plans without regard to this Article.
(c) If the Annual Additions under the Plan on behalf of a Member is to be
reduced as of any Allocation Date as a result of subsections (a) and (b), such
reduction shall be effected in the manner described in Section 12.01(b).
(d) If as a result of subsections (a) and (b) the allocation of Annual
Additions is reduced, such reduction shall be treated in the manner described in
Section 12.01(c).
(e) Notwithstanding any other provision in subsections (a) through (d),
the Employer shall not contribute any amount that would cause an allocation to
the suspense
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account as of the date the contribution is allocated. If the contribution is
made prior to the date as of which it is to be allocated, then such contribution
shall not exceed an amount that would cause an allocation to the suspense
account if the date of contribution were an Allocation Date.
12.03 (This Section applies only to a Member who participates in one or more
qualified defined contribution plans maintained by the Employer other than a
regional prototype plan.)
(a) Annual Additions allocated under the Plan to any Member's accounts
shall be limited in accordance with the allocation provisions of Section 12.02
as though the other plan were a regional prototype plan, unless the Employer
specifically provides other limitations in the Adoption Agreement.
12.04 (This Section applies only to an Employer which, in addition to the
Plan, maintains or at any time maintained, a qualified defined benefit plan
covering any Member.)
(a) The sum of the Member's Defined Benefit Plan Fraction and Defined
Contribution Plan Fraction shall not exceed 1.0 in any Limitation Year. The
Annual Additions which may be credited to the Member's accounts under this Plan
for any Limitation Year shall be limited in accordance with the limitations
specifically provided by the Employer in the Adoption Agreement.
12.05 For purposes of this Article, the following terms shall be defined
as follows:
(a) "Allocation Date" means the date with respect to which all or a
portion of Employer contributions, Member contributions, or forfeitures are
allocated to Members' accounts.
(b) "Annual Additions" means, with respect to any Member, the sum, for
the Limitation Year, of (i) all Employer contributions allocated to his account;
(ii) all forfeitures allocated to his account; (iii) all Member's nondeductible
contributions allocated to his account, (iv) contributions allocated after March
31, 1984, to an individual medical benefit account, as defined in Section
415(1)(2) of the Code, maintained for such Member under a pension or annuity
plan sponsored by an Employer, (v) Excess Elective Deferrals, (vi) Excess
Contributions, (vii) Excess Aggregate Contributions, and (viii) amounts derived
from contributions paid or accrued after December 31, 1985, in taxable years
ending after such date, which are attributable to post-retirement medical
benefits allocated to the separate account of a key employee, as defined in
Section 419A(d)(3) of the Code, under a welfare benefit fund, as defined in
Section 419(e) of the Code, maintained by the Employer. For the purpose of this
Article, amounts allocated to the Member's account from a suspense account shall
also be treated as Annual Additions.
(c) "Compensation" means a Member's earned income, wages, salaries, and
fees for professional services and other amounts received for personal services
actually
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rendered in the course of employment with the Employer maintaining the Plan
(including, but not limited to commissions paid salesmen, compensation for
services on the basis of a percentage of profits, commissions on insurance
premiums, tips and bonuses), and excluding the following:
(i) Employer contributions to a plan of deferred compensation which
are not includible in the Employee's gross income for the taxable year in
which contributed, or Employer contributions under a simplified employee
pension plan to the extent such contributions are deductible by the Employee,
or any distributions from a plan of deferred compensation;
(ii) Amounts realized from the exercise of a non-qualified stock
option, or when restricted stock (or property) held by the Employee either
becomes freely transferable or is no longer subject to a substantial risk of
forfeiture;
(iii) Amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified or incentive stock option; and
(iv) Other amounts which received special tax benefits, or
contributions made by the Employer (whether or not under a salary reduction
agreement) towards the purchase of an annuity described in Section 403(b) of
the Code (whether or not the amounts are actually excludable from the gross
income of the Employee).
For purposes of applying the limitations of this Article, Compensation
for a Limitation Year is the Compensation actually paid or includible in gross
income during such year.
(d) "Defined Benefit Fraction" means a fraction, the numerator of which
is the sum of the Member's Projected Annual Benefits under all qualified defined
benefit plans (whether or not terminated) maintained by the Employer, and the
denominator of which is the lesser of 100% of the dollar limitation in effect
for the Limitation Year under Section 415(b)(1)(A) of the Code or 140% of the
Member's average Compensation for the highest three (3) consecutive calendar
years during which the Member was an active Member in such plan, including any
adjustments under Section 415(b) of the Code.
Notwithstanding the above, if the Member was a Member as of the first day
of the first Limitation Year beginning after December 31, 1986, in one or more
qualified defined benefit plans maintained by the Employer which were in
existence on May 6, 1986, the denominator of this fraction will not be less than
125% of the sum of the annual benefits under such plans which the Member had
accrued as of the later of the end of the last Limitation Year beginning before
January 1, 1987, disregarding any changes in the terms and conditions of the
Plan after May 5, 1986. The preceding sentence applies only if the defined
benefit plans individually and in the aggregate satisfied the requirements of
Section 415 of the Code as in effect for all Limitation Years beginning before
January 1, 1987.
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(e) "Defined Contribution Fraction" means a fraction, the numerator of
which is the sum of the Annual Additions to the Member's accounts under all
qualified defined contribution plans (whether or not terminated) maintained by
the Employer for the current and all prior Limitation Years (including the
Annual Additions attributable to the Member's nondeductible employee
contributions to all qualified defined benefit plans, whether or not terminated,
maintained by the Employer, and the Annual Additions attributable to all welfare
benefit funds, as defined in Section 419(e) of the Code, and individual medical
accounts, as defined in Section 415(1)(2) of the Code, maintained by the
Employer), and the denominator of which is the sum of the Maximum Permissible
Amounts for the current and all prior Limitation Years of service with the
Employer (regardless of whether a defined contribution plan was maintained by
the Employer). The Maximum Permissible Amount in any Limitation Year is the
lesser of 100% of the dollar limitation in effect under Section 415(c)(1)(A) of
the Code or thirty-five percent (35%) of the Member's Compensation for such
year.
If the Employee was a Member as of the end of the first day of the first
Limitation Year beginning after December 31, 1986, in one or more defined
contribution plans maintained by the Employer which were in existence on May 6,
1986, the numerator of this fraction will be adjusted if the sum of this
fraction and the Defined Benefit Fraction would otherwise exceed 1.0 under the
terms of this Plan. Under the adjustment, an amount equal to the product of (1)
the excess of the sum of the fractions over 1.0 times (2) the denominator of
this fraction will be permanently subtracted from the numerator of this
fraction. The adjustment is calculated using the fractions as they would be
computed as of the later of the end of the last Limitation Year beginning before
January 1, 1987, and disregarding any changes in the terms and conditions of the
Plan made after May 6, 1986, but using the Section 415 limitation applicable to
the first Limitation Year beginning on or after January 1, 1987. The Annual
Additions for any Limitation Year beginning before January 1, 1987 shall not be
recomputed to treat all employee contributions as Annual Additions.
(f) "Employer" means the Employer that adopts this Plan, and all members
of a controlled group of corporations (as defined in Section 414(b) of the Code
as modified by Section 415(h)), all commonly controlled trades or businesses (as
defined in Section 414(c) of the Code as modified by Section 414(h)) or
affiliated service groups (as defined in Section 414(m) of the Code) of which
the adopting Employer is a part, and any other entity required to be aggregated
with the Employer pursuant to regulations under Section 414(o) of the Code.
(g) "Excess Amount" means the excess of the Member's Annual Additions for
the Limitation Year over the Maximum Permissible Amount.
(h) "Limitation Year" means the Plan Year (or any other twelve (12)
consecutive-month period adopted for all plans of the Employer and specified in
the Adoption Agreement). All qualified plans maintained by the Employer must use
the same Limitation Year. If the Limitation Year is amended to a different
twelve consecutive-month period, the
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new Limitation Year must begin on a date within the Limitation Year in which the
amendment is made.
(i) "Maximum Permissible Amount" means, with respect to any Member for a
Limitation Year, the lesser of (1) $30,000 or if greater, one-fourth of the
defined benefit dollar limit set forth in Section 415(b)(1) or (2) twenty-five
percent (25%) of the Member's Compensation for the Limitation Year. The
Compensation limitation referred to in (2) shall not apply to any contribution
for medical benefits (within the meaning of Section 401(h) or 419A(f)(2) of the
Code which is otherwise treated as an Annual Addition under Section 415(1)(1) or
419A(d)(2) of the Code. If a short Limitation Year is created because of an
amendment changing the Limitation Year to a different twelve consecutive-month
period, the Maximum Permissible Amount shall not exceed the amount set forth in
(1) multiplied by the following fraction:
Number of months in the short Limitation Year
---------------------------------------------
Twelve (12)
(j) "Projected Annual Benefit" means the annual retirement benefit
(adjusted to an actuarially equivalent straight life annuity if such benefit is
expressed in a form other than a straight life annuity or qualified joint and
survivor annuity) to which the Member would be entitled under the terms of the
plan assuming:
(i) the Member will continue employment until normal retirement
age under the plan (or current age, if later), and
(ii) the Member's Compensation for the current Limitation Year and
all other relevant factors used to determine benefits under the plan will
remain constant for all future Limitation Years.
12.06 It shall be the responsibility of the Employer and the Plan
Administrator to insure that the limitations imposed by this Article are fully
complied with at all times. The Trustee shall have no responsibility with
respect to insuring such compliance and shall be under no obligation whatsoever
to take any action to determine whether in fact the limitations of this Article
are being fully complied with at all times.
ARTICLE XIII
------------
Miscellaneous
-------------
13.01 Spendthrift Provision. Beneficial interests of Members or their
---------------------
Beneficiaries in the Trust shall not be assignable nor subject to attachment nor
receivership, nor shall they pass to any trustee in bankruptcy or be reached or
applied by any legal process for the payment of any obligations of any such
person, except obligations of a Member to the Trust in connection with any
outstanding loans to such Member pursuant to Section 7.10.
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Notwithstanding the foregoing, the provisions of this Section 13.01 shall not
preclude the Trustee from complying with a Qualified Domestic Relations Order as
defined in Section 7.07(e) of the Plan.
13.02 Notices. All notices required to be given by the Trustees to an
-------
Employer shall be deemed to have been given when mailed to the address of the
Employer indicated by the Trustee's records. All notices required to be given to
the Trustee by an Employer shall be deemed to have been given when mailed to the
address indicated by the Employer's records.
13.03 Construction. In any question of interpretation or other matter of
------------
doubt, an Employer, the Plan Administrator and the Trustee may rely upon the
opinion or counsel for the Employer or any other attorney at law designated by
the Employer with the approval of the Trustee. The provision of this Plan and
Trust shall be construed, administered and enforced according to ERISA and the
laws of the Commonwealth of Massachusetts. All contributions to the Trust shall
be deemed to be made in the Commonwealth of Massachusetts.
13.04 Impossibility of Performance. In case it becomes impossible for an
----------------------------
Employer, the Plan Administrator, or the Trustee to perform any act under the
Plan or Trust, that act shall be performed which in the judgment of the Plan
Administrator or Trustee will most nearly carry out the intent and purpose of
the Plan or Trust. All parties to the applicable Adoption Agreement or in any
way interested in the Plan or Trust shall be bound by any acts performed under
such condition.
13.05 Definition of Words. Feminine or neuter pronouns shall be substituted
-------------------
for those of the masculine form, and the plural shall be substituted for the
singular, in any place or places herein where the context may require such
substitution or substitutions.
13.06 Titles. The titles of articles and sections are included only for
------
convenience and shall not be construed as a part of this Plan or in any respect
affecting or modifying its provisions.
13.07 Conflict with Plan Provisions. In the event that any contract or other
-----------------------------
arrangement which is entered into pursuant to the Plan or Trust conflicts in any
manner with the provisions of the Plan and Trust, then the provisions of the
Plan and Trust shall control.
ARTICLE XIV
-----------
Top Heavy Plans
---------------
14.01 Application of Article. This Article XIV will apply to a Non
----------------------
Standard Profit-Sharing Section 401(k) Plan provided, however, that Section
14.05 shall also apply to a Standard Profit Sharing Plan.
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14.02 Definitions. When used in this Article XIV, the following terms
-----------
shall have the indicated meanings:
(a) "Determination Date" means, for any Plan Year subsequent to the first
Plan Year, the last day of the preceding Plan Year, and for the first Plan Year,
the last day of that year.
(b) "Key Employee" means any Employee or former Employee who at any time
during the Plan Year containing the Determination Date or the four preceding
Plan Years was:
(i) an officer of an Employer, whose Compensation for such Plan Year
exceeds 50% of the dollar limitation in effect under Section 415(b)(1)(A) for
any such Plan Year;
(ii) one of the ten (10) Employees having Compensation for such Plan
Year in excess of the Maximum Permissible Amount defined in Section
12.05(i)(1) of the Plan and owning (or considered as owning under Section 318
of the Code) the largest interests in an Employer;
(iii) a five-percent owner of an Employer;
(iv) a one percent owner of an Employer, whose Compensation
for such Plan Year exceeds $150,000;
(v) a Beneficiary of a Key Employee.
For this purpose, Compensation means Compensation as defined in Section
12.05(c), but including amounts contributed by the Employer pursuant to a salary
reduction agreement which are excludable from the Employee's gross income under
Section 125, 402(a)(8), 402(h) or 403(b) of the Code.
The determination of who is a Key Employee shall be made in accordance
with Section 416(i)(1) of the Code and the regulations thereunder.
(c) "Permissive Aggregation Group" means the Required Aggregation Group
plus any other plan or plans (including terminated plans) of an Employer which,
when considered as a group with the Required Aggregation Group, would continue
to satisfy the requirements of Sections 401(a)(4) and 410 of the Code.
(d) "Present Value" means actuarial present value based only on the
interest and mortality rates specified in the Adoption Agreement.
(e) "Required Aggregation Group" means (i) each qualified plan of an
Employer in which at least one Key Employee participates or participated at any
time during
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the determination period (regardless of whether the plan has terminated), and
(ii) any other qualified plan (including terminated plans) of an Employer which
enables a plan described in (i) to meet the requirements of Sections 401(a)(4)
or 410 of the Code.
(f) "Top Heavy Ratio" means the percentage determined as follows:
(i) If the plan or group of plans being tested includes one or more
defined contribution plans (including any Simplified Employee Pension Plan)
and no defined benefit plan which during the five-year period ending on the
Determination Date(s) has or has had accrued benefits, the Top-Heavy Ratio is
a fraction, the numerator of which is the sum of the account balances of all
Key Employees as of the Determination Date (including any part of any account
balance distributed in the five (5) year period ending on the Determination
Date), and the denominator of which is the sum of all account balances
(including any part of any account balance distributed in the five (5) year
period ending on the Determination Date) of all participants as of the
determination date. Both the numerator and denominator of the Top-Heavy Ratio
are increased to include any contribution which is due but unpaid as of the
Determination Date, and to exclude Deductible Account balances and any
Rollover Account balances accepted from a plan of an unrelated employer after
December 31, 1983.
(ii) If the plan or group of plans being tested includes one or more
defined contribution plans (including any Simplified Employee Pension Plan)
and one or more defined benefit plans which during the five (5) year period
ending on the Determination Date(s) has or has had any accrued benefits, the
Top-Heavy Ratio is a fraction, the numerator of which is the sum of account
balances under the defined contribution plans for all Key Employees and the
present value of accrued benefits under the defined benefit plans for all Key
Employees, and the denominator of which is the sum of the account balances
under the defined contribution plans for all participants and the present
value of accrued benefits under the defined benefit plans for all
participants. Both the numerator and denominator of the Top-Heavy Ratio are
increased to include any distribution of an account balance or an accrued
benefit made in the five (5) year period ending on the Determination Date and
any contribution due but unpaid as of the Determination Date, and to exclude
any Rollover Account balances accepted from a plan of an unrelated employer
after December 31, 1983.
(iii) For purposes of (i) and (ii) above, the value of account
balances and the present value of accrued benefits will be determined as of
the most recent valuation date that falls within or ends with the twelve (12)
month period ending on the Determination Date, except as provided in Section
416 of the Code and regulations thereunder for the first and second years of a
defined benefit plan. The account balances and accrued benefits of a Member
(A) who is not a Key Employee but who was a Key Employee in a prior year, or
(B) who has not performed one (1) Hour of Service for the Employer at any time
during the five-year period ending on the Determination Date, will be
disregarded. The calculation of the Top-Heavy Ratio, and the extent to which
distributions, rollovers, and transfers are taken into account will be
74
<PAGE>
made in accordance with Section 416 of the Code and the regulations
thereunder. When aggregating plans the value of account balances and accrued
benefits will be calculated with reference to the Determination Dates that
fall within the same calendar year. The accrued benefit of a Member, other
than a Key Employee, shall be determined under (1) the method, if any, that
uniformly appears for accrual purposes under all defined benefit plans
maintained by the Employer, or (2) if there is no such method, as if such
benefit accrued not more rapidly than the slowest accrual rate permitted
under the fractional method of Section 411(b)(1)(C) of the Code.
(g) "Valuation Date" means the date elected by the Employer in the
Adoption Agreement as of which account balances or accrued benefits are valued
for purposes of calculating the Top-Heavy Ratio.
14.03 Determination of Top-Heavy Status. For any Plan Year, the Plan is
---------------------------------
top-heavy if any of the following conditions exists:
(a) The Top-Heavy Ratio for this Plan exceeds sixty percent (60%) and
this Plan is not part of any Required Aggregation Group or Permissive
Aggregation Group.
(b) The Plan is part of a Required Aggregation Group but not part of a
Permissive Aggregation Group and the Top-Heavy Ratio for such group exceeds
sixty percent (60%).
(c) The Plan is part of a Required Aggregation Group and/or a Permissive
Aggregation Group and the Top-Heavy Ratio for each such group exceeds sixty
percent (60%).
14.04 Provisions Applicable When Plan is Not Top-Heavy. For any Plan Year in
------------------------------------------------
which the Plan is not Top-Heavy, and for any Plan Year in which the Top-Heavy
Ratio does not exceed 90% and each Member who is employed on the last day of the
Plan Year receives a minimum allocation of Employer contributions and
forfeitures equal to seven and one-half percent (7 1/2%) of his Compensation, or
receives a minimum benefit under the Employer's defined benefit plan equal to
the product of (a) the Member's average Compensation for the period of
consecutive years (not exceeding five) when the Member had the highest aggregate
Compensation from the Employer and (b) the lesser of three percent (3%) per year
of service or thirty percent (30%) as elected by the Employer in the Adoption
Agreement, 125% shall be substituted for 100% in Sections 12.05(d) and 12.05(e).
14.05 Provisions Applicable When Plan is Top-Heavy. The following
--------------------------------------------
provisions shall apply for any Plan Year in which the Plan is Top-Heavy or is
deemed to be Top-Heavy:
(a) Minimum Allocation.
-------------------
(i) For any Plan Year in which this Plan is top-heavy or deemed to
be top-heavy, the Employer contributions and forfeitures allocated pursuant to
Section
75
<PAGE>
5.04A(b)(ii) and Paragraph 6 of the Adoption Agreement shall be
adjusted to the extent necessary to provide that the Employer contributions
and forfeitures allocated on behalf of any Member and who is employed on the
last day of the Plan Year shall not be less than the lesser of three percent
(3%) of such Member's Compensation (as defined in Section 12.05(c)) or in the
case where the Employer has no defined benefit plan which designates this Plan
to satisfy Section 401 of the Code and this Plan is not integrated with Social
Security, the largest percentage of Employer contributions (including Elective
Deferrals and Matching Contributions) and forfeitures, as a percentage of the
Key Employee's Compensation (as defined in Section 12.05(c)), allocated on
behalf of any Key Employee for that year. The minimum allocation is determined
without regard to any Social Security contribution. This minimum allocation
shall be made even though, under other plan provisions, the Member would not
otherwise be entitled to receive an allocation. Neither Elective Deferrals nor
Matching Contributions may be taken into account for the purpose of satisfying
this minimum top-heavy allocation requirement. The minimum allocation required
(to the extent required to be nonforfeitable under Section 416(b) of the Code)
may not be forfeited under Section 411(a)(3)(B) or 411(a)(3)(D) of the Code.
(ii) The provision in (i) above shall not apply to any Member to the
extent the Member is covered under any other plan or plans of the Employer and
the Employer has provided in the Adoption Agreement that the minimum
allocation or benefit requirement applicable to top-heavy plans will be met in
the other plan or plans.
(b) Minimum Vesting. For any Plan Year in which this Plan is top-heavy or
---------------
deemed to be top-heavy, one of the minimum vesting schedules as elected by the
Employer in the Adoption Agreement shall automatically apply to the Employer and
Matching Account of each Member of the Plan who has an Hour of Service after the
Plan becomes top-heavy or is deemed to be top-heavy if the minimum vesting
schedule provides faster vesting than the regular vesting schedule specified by
the Employer in its Adoption Agreement. The minimum vesting schedule applies to
the entire Employer and Matching Account of the Member, including benefits
accrued before the effective date of Section 416 and benefits accrued before the
Plan became top-heavy.
In the event the Plan ceases to be top-heavy for any subsequent Plan Year, the
vested percentage of any Member who terminated after the Plan has ceased to be
top-heavy shall be determined in accordance with the regular vesting schedule
specified by the Employer in its Adoption Agreement except that (i) the vested
percentage of a Member shall not be less than the vested percentage which the
Member had achieved under the minimum top-heavy schedule as of the last day of
the Plan Year for which the Plan was top-heavy and (ii) the vested percentage of
a Member who had been credited with three (3) or more Years of Vesting Service
as of the last day of the Plan Year for which the Plan was top-heavy shall
always be determined under the minimum top-heavy vesting schedule if such
schedule provides faster vesting than the regular vesting schedule specified by
the Employer in its Adoption Agreement.
76
<PAGE>
ARTICLE XV
----------
Life Insurance
--------------
15.01 Application of Article. This Article shall apply when the Plan
----------------------
allows investment in life insurance.
15.02 Definitions. Whenever used in this Article, unless the context clearly
-----------
indicates otherwise, the following words shall have the following meanings:
(a) "Insurer" means the insurance company or companies designated
by the Plan Administrator.
(b) "Insurance Policy" means any life insurance policy issued to the
Trustee by an Insurer under the terms of the Plan.
15.03 Valuation of Trust. In determining the net worth of the assets of the
------------------
Trust under Article V, the Trustee shall exclude the value of any Insurance
Policies held for Members.
15.04 Purchase of Insurance.
---------------------
(a) If the Employer has specified in the Adoption Agreement that Members
may direct the Trustee to invest a portion of their accounts (other than the
Deductible Account) in life insurance, the Trustee shall apply to the Insurer
designated by the Plan Administrator for an ordinary life insurance policy
and/or a term life insurance policy for each Member who is insurable and from
whom the Trustee has received written instructions to make such investment. The
face amount of any such Insurance Policy shall be determined by each Member
subject to the limits specified in the Adoption Agreement.
(b) The Trustee shall apply a specified percentage of the Employer
contribution for or on behalf of the Member to the annual premium for the
Insurance Policy as directed by such Member in writing. The balance of the
Employer's contribution and voluntary contributions shall be invested pursuant
to Section 10.03. The Trustee, at the written direction of the Member, shall
apply to the Insurer for a decrease in, or for additional, coverage on the life
of a Member, as necessary to comply with the percentage(s) specified in the
Adoption Agreement. Except as otherwise permitted by the Trustee, the due date
of the annual premium shall be the same for all Insurance Policies held for
Members in the Plan. Each Insurance Policy shall be a contract between an
Insurer and the Trustee, and shall name the Trustee as the owner reserving to
the Trustee all rights, options and benefits provided by the Insurance Policy or
permitted by such insurer, except the right to designate or change the
beneficiary, which shall be exercised by the Member in accordance with Section
7.04 hereof, and subject to all the requirements and conditions set forth
therein; provided however, that the last paragraph of Section 7.04(a) shall
apply to a profit sharing
77
<PAGE>
plan unless the Member's spouse is the Beneficiary of any Insurance Policy
purchased in accordance with this Article.
(c) In no event shall any Insurance Policy provide for an automatic
premium loan for the payment of any portion of the life insurance premium. Each
Insurance Policy shall be restrictively endorsed, to provide that the contract
is not transferable and may not be sold, assigned, discounted or pledged as
collateral for a loan or as security for the performance of an obligation or for
any other purpose to any person other than the Trustee. The Trustee shall
annually pay insurance premiums on behalf of insured Members on any policy held
hereunder as each annual premium date falls due. Dividends, if any, on a policy
shall be used to reduce the premium payable. If at any time the specified
percentage of the Employer's contribution and voluntary contributions is
insufficient to pay the premium due, the Trustee shall, in the absence of
directions from the Member to apply to the Insurer for a decrease in coverage,
continue the policy as a paid-up policy and all subsequent contributions shall
be invested pursuant to Section 10.03.
(d) Any Insurance Policy purchased by the Trustee under this Section
15.04 with respect to any Member shall be deemed the separate property of the
account of such Member and shall not participate in the allocation of income,
appreciation or depreciation of the assets of the Trust pursuant to Sections
5.03A and 5.04A or Sections 5.08B and 5.09B, whichever are applicable. Upon the
retirement, termination of employment, or death of a Member, the net proceeds of
any Insurance Policy held by the Trustee on his life shall be converted to cash
or an annuity and distributed in accordance with Article VII.
(e) In the event of any conflict between the terms of this Plan and the
provisions of any Insurance Policy issued hereunder, the terms of the Plan shall
control.
(f) The Insurer shall not be considered to be a party to the agreement
between the Employer and the Trustee and shall be fully protected in assuming
that the Trustee is as shown on the latest notification received at its home
office. The Insurer shall be protected in acting in accordance with any written
direction of the Trustee and shall have no duty to see to the application of
funds paid by it to the Trustee, nor shall it be required to question any
actions directed by the Trustee.
(g) For purposes of this Article, ordinary life insurance policies are
policies with both non-decreasing death benefits and non-increasing premiums.
Any other life insurance policy is a term life insurance policy.
ARTICLE XVI
-----------
Direct Rollovers
----------------
16.01 Application of this Article. This Article applies to distributions made
---------------------------
on or after January 1, 1993. Notwithstanding any provision of the Plan to the
contrary that would
78
<PAGE>
otherwise limit a distributee's election under this Article, a distributee may
elect, at the time and in the manner prescribed by the Plan Administrator, to
have any portion of an eligible rollover distribution paid directly to an
eligible retirement plan specified by the distributee in a direct rollover.
16.02 Definitions. Whenever used in this Article, the following words
-----------
shall have the following meanings:
(a) Eligible rollover distribution: An eligible rollover distribution is
------------------------------
any distribution of all or any portion of the balance to the credit of the
distributee, except that an eligible rollover distribution does not include: any
distribution that is one of a series of substantially equal periodic payments
(not less frequently than annually) made for the life (or life expectancy) of
the distributee or the joint lives (or joint life expectancies) of the
distributee and the distributee's designated beneficiary, or for a specified
period of ten years or more; any distribution to the extent such distribution is
required under section 401(a)(9) of the Code; and the portion of any
distribution that is not includible in gross income (determined without regard
to the exclusion for net unrealized appreciation with respect to employer
securities).
(b) Eligible retirement plan: An eligible retirement plan is an
------------------------
individual retirement account described in section 408(a) of the Code, an
individual retirement annuity described in section 408(b) of the Code, an
annuity plan described in section 403(a) of the Code, or a qualified trust
described in section 401(a) of the Code, that accepts the distributee's eligible
rollover distribution. However, in the case of an eligible rollover distribution
to the surviving spouse, an eligible retirement plan is an individual retirement
account or individual retirement annuity.
(c) Distributee: A distributee includes an employee or former employee.
-----------
In addition, the employee's or former employee's surviving spouse and the
employee's or former employee's spouse or former spouse who is the alternate
payee under a qualified domestic relations order, as defined in section 414(p)
of the Code, are distributees with regard to the interest of the spouse or
former spouse.
(d) Direct rollover: A direct rollover is a payment by the Plan to the
--------------
eligible retirement plan specified by the distributee.
72598.b1
3/25/95
79
Exhibit 10.2a
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
G.P.O. BOX 1680
BROOKLYN, NY 11202
Employer Identification Number:
Date: JUL 7 1995 04-2297459
File Folder Number:
023000079
TYCO INTERNATIONAL LTD. Person to Contact:
THREE TYCO PARK RUDOLPH GEORGE
EXETER, NH 03833 Contact Telephone Number:
(718) 488-2428
Plan Name:
TYCO INTERNATIONAL LTD RETIREMENT
SAVINGS AND INVESTMENT PLAN
Plan Number: 008
Dear Applicant:
We have made a favorable determination on your plan, identified above,
based on the information supplied. Please keep this letter in your
permanent records.
Continued qualification of the plan under its present form will depend
on its effect in operation. (See section 1.401-1(b)(3) of the Income Tax
Regulations.) We will review the status of the plan in operation
periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some features that may affect the
qualified status of your employee retirement plan, and provides information on
the reporting requirements for your plan. It also describes some events that
automatically nullify it. It is very important that you read the
publication.
This letter relates only to the status of your plan under the Internal
Revenue Code. It is not a determination regarding the effect of other
federal or local statutes.
This determination letter is applicable for the amendment(s) adopted on
December 19,1988.
This determination letter is also applicable for the amendment(s)
adopted on January 17,1992.
This plan has been mandatorily disaggregated, permissively aggregated,
or restructured to satisfy the nondiscrimination requirements.
This letter is issued under Rev. Proc. 93-39 and considers the
amendments required by the Tax Reform Act of 1986 except as otherwise
specified in this letter.
This plan satisfies the nondiscriminatory current availability
requirements of section 1.401(a)(4)-4(b) of the regulations with respect to
those benefits, rights, and features that are currently available to all
employees in the plan's coverage group. For this purpose, the plan's coverage
group consists of those employees treated as currently benefiting for purposes
of demonstrating that the plan satisfies the minimum coverage requirements of
section 410(b) of the Code.
<PAGE>
-2-
TYCO INTERNATIONAL LTD.
This plan also satisfies the requirements of section 1.401(a)(4)-4(b)
of the regulations with respect to the specific benefits, rights, or
features for which you have provided information.
This letter may not be relied upon with respect to whether the plan
satisfies the qualification requirements as amended by the Uruguay Round
Agreements Act, Pub. L. 103-465.
The information on the enclosed addendum is an integral part of this
determination. Please be sure to read and keep it with this letter.
We have sent a copy of this letter to your representative as indicated
in the power of attorney.
If you have questions concerning this matter, please contact the person
whose name and telephone number are shown above.
Sincerely yours,
/s/ Herbert J.Huff
Herbert J.Huff
District Director
Enclosures:
Publication 794
Reporting & Disclosure Guide
for Employee Benefit Plans
Addendum
<PAGE>
-3-
TYCO INTERNATIONAL LTD.
This determination letter is also applicable for the amendments adopted on
December 29,1994.
Exhibit 10.2b
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
G.P.O. BOX 1680
BROOKLYN, NY 11202
Employer Identification Number:
Date: JUL 7 1995 04-1837620
File Folder Number:
020000223
SIMPLEX TECHNOLOGIES INC Person to Contact:
THREE TYCO PARK RUDOLPH GEORGE
EXETER, NH 03833-0000 Contact Telephone Number:
(718) 488-2428
Plan Name:
SIMPLEX HOURLY EMPLOYEES RETIREMENT
SAVINGS AND INVESTNENT PLAN
Plan Number: 004
Dear Applicant:
We have made a favorable determination on your plan, identified above,
based on the information supplied. Please keep this letter in your
permanent records.
Continued qualification of the plan under its present form will depend
on its effect in operation. (See section 1.401-1(b)(3) of the Income Tax
Regulations.) We will review the status of the plan in operation
periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some features that may affect the
qualified status of your employee retirement plan, and provides information
on the reporting requirements for your plan. It also describes some events
that automatically nullify it. It is very important that you read the
publication.
This letter relates only to the status of your plan under the Internal
Revenue Code. It is not a determination regarding the effect of other
federal or local statutes.
This determination letter is applicable for the amendment(s) adopted on
January 17, 1992.
This determination letter is also applicable for the amendment(s)
adopted on April 20, 1992.
This plan has been mandatorily disaggregated, permissively aggregated,
or restructured to satisfy the nondiscrimination requirements.
This letter is issued under Rev. Proc. 93-39 and considers the
amendments required by the Tax Reform Act of 1986 except as otherwise
specified in this letter.
This plan satisfies the nondiscriminatory current availability
requirements of section 1.401(a)(4)-4(b) of the regulations with respect
to those benefits, rights, and features that are currently available to all
employees in the plan's coverage group. For this purpose, the plan's coverage
group consists of those employees treated as currently benefiting for purposes
of demonstrating that the plan satisfies the minimum coverage rquirements of
section 410(b) of the Code.
<PAGE>
-2-
SIMPLEX TECHNOLOGIES INC
This plan also satisfies the requirements of section 1.401(a)(4)-4(b)
of the regulations with respect to the specific benefits, rights, or
features for which you have provided information.
This letter may not be relied upon with respect to whether the plan
satisfies the qualification requirements as amended by the Uruguay Round
Agreements Act, Pub. L. 103-465.
The information on the enclosed addendum is an integral part of this
determination. Please be sure to read and keep it with this letter.
We have sent a copy of this letter to your representative as indicated
in the power of attorney.
If you have questions concerning this matter, please contact the person
whose name and telephone number are shown above.
Sincerely yours,
/s/ Herbert J. Huff
Herbert J. Huff
District Director
Enclosures:
Publication 794
Reporting & Disclosure Guide
for Employee Benefit Plans
Addendum
<PAGE>
-3-
SIMPLEX TECHNOLOGIES INC
This determination letter is also applicable for the amendments adopted
on August 5,1994
Exhibit 10.2c
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
G.P.O. BOX 1680
BR00KLYN, NY 11202
Employer Identification Number:
Date: MAR 2 1995 04-2297459
File Folder Number:
023000079
TYCO INTERNATIONAL LTD Person to Contact:
ONE TYCO PARK CYNTHIA GAMBLE
EXETER, NH 03833 Contact Telephone Number:
(516) 683-5393
Plan Name: ARMIN
RETIREMENT SAVINGS AND INVESTMENT
PLAN FOR CERTAIN NON-UNION HOURLY
Plan Number: 006
Dear Applicant:
We have made a favorable determination on your plan, identified
above, based on the information supplied. Please keep this letter in
your permanent records.
Continued qualification of the plan under its present form will
depend on its effect in operation. (See section 1.401-1(b)(3) of the
Income Tax Regulations.) We will review the status of the plan in
operation periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some features that may affect the qualified
status of your employee retirement plan, and provides information on the
reporting requirements for your plan. It also describes some events that
automatically nullify it. It is very important that you read the
publication.
This letter relates only to the status of your plan under the
Internal Revenue Code. It is not a determination regarding the effect
of other federal or local statutes.
This determination is subject to your adoption of the proposed
amendments submitted in your letter dated 2-15-95. The proposed
amendments should be adopted on or before the date prescribed by the
regulations under Code section 401(b).
This determination letter is applicable for the amendment(s)
adopted on 9-17-92.
This determination letter is also applicable for the amendment(s)
adopter on 8-26-94.
This determination letter is applicable for the plan adopted on
12-19-88.
This plan satisfies the minimum coverage and nondiscrimination
requirements of sections 410(b) and 401(a)(4) of the Code because the plan
benefits highly compensated employees. This letter may not be relied on with
respect to the aforementioned requirements of the Code for any plan year in
which the plan benefits any highly compensated employees.
<PAGE>
-2-
TYCO INTERNATIONAL LTD
We have sent a copy of this letter to your representative as indicated
in the power of attorney.
If you have questions concerning this matter, please contact the person
whose name and telephone number are shown above.
Sincerely yours,
/s/ Herbert J. Huff
Herbert J. Huff
District Director
Enclosures:
Publication 794
Reporting & Disclosure Guide
for Employee Benefit Plans
Exhibit 10.2d
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
G.P.O. BOX 1680
BROOKLYN, NY 11202
Employer Identification Number:
Date: FEB 22 1995 05-0346132
File Folder Number:
023000274
GRINNELL CORPORATION Person to Contact:
THREE TYCO PARK JEANNE CRONIN
EXETER, NH 03833 Contact Telephone Number:
(617) 565-7771
Plan Name:
GRINELL CORPORATION HOURLY
RETIREMENT SAVINGS & INVESTMENT PL
Plan Number: 022
Dear Applicant:
We have made a favorable determination on your plan, identified above,
based on the information supplied. Please keep this letter in your
permanent records.
Continued qualification of the plan under its present form will depend
on its effect in operation. (See section 1.401-1(b)(3) of the Income Tax
Regulations.) We will review the status of the plan in operation
periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some features that may affect the
qualified status of your employee retirement plan, and provides information
on the reporting requirements for your plan. It also describes some events
that automatically nullify it. It is very important that you read the
publication.
This letter relates only to the status of your plan under the Internal
Revenue Code. It is not a determination regarding the effect of other
federal or local statutes.
This determination letter is applicable for the amendment(s) adopted on
March 19, 1990.
This determination letter is also applicable for the amendment(s)
adopted on January 17, 1992.
This letter is issued under Rev. Proc. 93-39 and considers the
amendments required by the Tax Reform Act of 1986 except as otherwise
specified in this letter.
The information on the enclosed addendum is an integral part of this
determination. Please be sure to read and keep it with this letter.
We have sent a copy of this letter to your representative as indicated
in the power of attorney.
<PAGE>
-2-
GRINNELL CORPORATION
If you have questions concerning this matter, please contact the person
whose name and telephone number are shown above.
Sincerely yours,
/s/ Herbert J. Huff
Herbert J. Huff
District Director
Enclosures:
Publication 794
Reporting & Disclosure Guide
for Employee Benefit Plans
Addendum
<PAGE>
-3-
GRINNELL CORPORATION
This determination letter applies to the amendments adopted Nov. 14,
1994 and Nov. 15, 1994.
This determination letter applies to the following controlled group
members: Allied Tube and Condit Corp., Ludlow Corp., Mueller Co., Simplex
Wire and Cable Co., Tyco Laboratories, Inc. and Wormald U.S., Inc.
Exhibit 10(2)(e)
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
G.P.O. BOX 1680
BROOKLYN, NY. 11202 Employer Identification Number:
01-2297859
File Folder Number:
Date: FEB 16 1993 113021188
Person to Contact:
SANDRA JORDAN
TYCO LABORATORIES INC. Contact Telephone Number:
ONE TYCO PARK (617) 565-7805
EXETER, NH 03833 Plan Name:
MUELLER COMPANY DECATUR PLANT
RETIREMENT SAVINGS AND INV PLAN
Plan Number: 027
Dear Applicant:
We have made a favorable determination on your plan, identified above,
based on the information supplied. Please keep this letter in your
permanent records.
Continued qualification of the plan under its present form will depend
on its effect in operation. (See section 1.401-1(b)(3) of the Income Tax
Regulations.) We will review the status of the plan in operation
periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some features that may affect the
qualified status of your employee retirement plan, and provides information
on the reporting requirements for your plan. It also describes some events
that automatically nullify it. It is very important that you read the
publication.
This letter relates only to the status of your plan under the Internal
Revenue Code. It is not a determination regarding the effect of other
federal or local statutes.
This determination is subject to your adoption of the proposed
amendments submitted in your letter dated January 12, 1993. The proposed
amendments should be adopted on or before the date prescribed by the
regulations under Code section 901(b).
This plan applies only to employees who can retire and obtain benefits
during the term for which it is drawn; no other employees are considered
covered. Therefore, the provisions of Code section 404 will be applied only
to covered employees.
This determination letter is also applicable for the amendment(s) adopted
on August 14, 1992.
This determination letter is applicable for the plan adopted on
September 23, 1991.
This letter does not constitute a determination that your plan
satisfies the requirements of Code section 401(a)(26).
This letter is based upon the certification and demonstrations you
sub-
<PAGE>
-2-
TYCO LABORATORIES INC.
mitted pursuant to Revenue Procedure 91-66. Therefore, the certification
and demonstrations are considered an integral part of this letter.
Accordingly, YOU MUST KEEP A COPY OF THESE DOCUMENTS AS A PERMANENT RECORD
OR YOU WILL NOT BE ABLE TO RELY ON THE ISSUES DESCRIBED IN REVENUE
PROCEDURE 91-66.
The information on the enclosed addendum is an integral part of this
determination. Please be sure to read and keep it with this letter.
We have sent a copy of this letter to your representative as indicated
in the power of attorney.
If you have questions concerning this matter, please contact the
person whose name and telephone number are shown above.
Sincerely yours,
/s/ Thomas E. Grace
Thomas E. Grace
Acting District Director
Enclosures:
Publication 794
PW8A 515
Addendum
<PAGE>
-3-
TYCO LABORATORIES INC.
This plan also satifies the requirements of Code section 401(a)(31).
Exhibit 10.2f
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
G.P.O. BOX 1680
BROOKLYN, NY 11202
Employer Identification Number:
04-2297459
Date: FEB 16 1993 File Folder Number:
113021188
Person to Contact:
SANDRA JORDAN
TYCO LABORATORIES Contact Telephone Number:
ONE TYCO PARK (617)565-7805
EXETER, NH 03833 Plan Name:
MUELLER CO. CHATIANOOGA PLANT
RET SAVINGS & INV PLAN FOR HOURLY
Plan Number: 028
Dear Applicant:
We have made a favorable determination on your plan, identified above,
based on the information supplied. Please keep this letter in your
permanent records.
Continued qualification of the plan under its present form will depend
on its effect in operation. (See section 1.401-1(b)(3) of the Income Tax
Regulations.) We will review the status of the plan in operation
periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some features that may affect the
qualified status of your employee retirement plan, and provides information
on the reporting requirements for your plan. It also describes some events
that automatically nullify it. It is very important that you read the
publication.
This letter relates only to the status of your plan under the Internal
Revenue Code. It is not a determination regarding the effect of other
federal or local statutes.
This determination is subject to your adoption of the proposed
amendments submitted in your letter dated January 12, 1993. The proposed
amendments should be adopted on or before the date prescribed by the
regulations under Code section 401(b).
This plan applies only to employees who can retire and obtain benefits
during the term for which it is drawn; no other employees are considered
covered. Therefore, the provisions of Code section 404 will be applied only
to covered employees.
This determination letter is applicable for the plan adopted on August
14, 1992.
This letter does not constitute a determination that your plan
satisfies the requirements of Code section 401(a)(26).
This letter is based upon the certification and demonstrations you
submitted pursuant to Revenue Procedure 91-66. Therefore,the certification
and demonstrations are considered an integral part of this letter.
Accordingly, YOU MUST KEEP A COPY OF THESE DOCUMENTS AS A PERMANENT RECORD
OR YOU WILL NOT
<PAGE>
-2-
TYCO LABORATORIES INC.
BE ABLE TO RELY ON THE ISSUES DESCRIBED IN REVENUE PROCEDURE 91-66.
The information on the enclosed addendum is an integral part of this
determination. Please be sure to read and keep it with this letter.
We have sent a copy of this letter to your representative as indicated
in the power of attorney.
If you have questions concerning this matter, please contact the
person whose name and telephone number are shown above.
Sincerely yours,
/s/ Thomas E. Grace
Thomas E. Grace
Acting District Director
Enclosures:
Publication 794
PW8A 515
Addendum
<PAGE>
-3-
TYCO LABORATORIES INC.
This plan also satisfies the requirements of Code section 401(a)(31).
<PAGE>
NOTICE TO APPLICANT CONCERNING LIMITATION
UPON SCOPE OF DETERMINATION LETTER
EFFECTIVE JANUARY 1, 1993, ALL QUALIFIED PLANS, INCLUDING THE PLAN
IDENTIFIED IN THE ENCLOSED DETERMINATION LETTER, MUST COMPLY WITH SECTION
401(a)(31) OF THE CODE.
IN GENERAL, SECTION 401(a)(31) REQUIRES PLANS TO PERMIT
PARTICIPANTS TO ELECT TO HAVE AN ELIGIBLE RETIREMENT DISTRIBUTION PAID
DIRECTLY TO AN ELIGIBLE RETIREMENT PLAN IN A DIRECT ROLLOVER. THIS
REQUIREMENT APPLIES TO DISTRIBUTIONS MADE ON OR AFTER JANUARY 1, 1993.
BECAUSE THE APPLICATION FOR THIS DETERMINATION LETTER WAS SUBMITTED TO
THE SERVICE BEFORE JANUARY 1, 1993, THE SERVICE DID NOT REVIEW THE PLAN
IDENTIFIED THEREIN FOR COMPLIANCE WITH SECTION 401(A)(31).
ACCORDINGLY, THE SCOPE OF THIS DETERMINATION LETTER DOES NOT EXTEND TO
THE PLAN'S COMPLIANCE WITH SECTION 401(a)(31), AND THIS DETERMINATION
LETTER MAY NOT BE RELIED UPON WITH RESPECT TO THAT ISSUE.
FOR MORE DETAILS, PLEASE SEE REVENUE PROCEDURE 93-12, 1993-3 I.R.B.
(JANUARY 19, 1993).
Exhibit 10.2g
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
G.P.O. BOX 1680
BROOKLYN, NY 11202
Employer Identification Number:
Date: MAR 2 1995 04-2297459
File Folder Number:
023000079
TYCO INTERNATIONAL LTD Person to Contact:
ONE TYCO PARK CYNTHIA GAMBLE
EXETER, NH 03833 Contact Telephone Number:
(516) 683-5393
Plan Name: MUELLER CLEVELAND
HOURLY RETIREMENT SAVINGS AND
INVESTMENT PLAN
Plan Number: 026
Dear Applicant:
We have made a favorable determination on your plan, identified
above, based on the information supplied. Please keep this letter in
your permanent records.
Continued qualification of the plan under its present form will
depend on its effect in operation. (See section 1.401-1(b)(3) of the
Income Tax Regulations.) We will review the status of the plan in
operation periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some features that may affect the
qualified status of your employee retirement plan, and provides information
on the reporting requirements for your plan. It also describes some events
that automatically nullify it. It is very important that you read the
publication.
This letter relates only to the status of your plan under the
Internal Revenue Code. It is not a determination regarding the effect
of other federal or local statutes.
This determination letter is applicable for the amendments(s)
adopted on 08-14-92.
This determination letter is also applicable for the amendment(s)
adopted on 12-16-93 & 11-15-94.
This determination letter is applicable for the plan adopted
on 1-3-91.
This plan satisfies the minimum coverage and nondiscrimination
requirements of sections 410(b) and 401(a)(4) of the Code because the
plan benefits highly compensated employees. This letter may not be
relied on with respect to the aforementioned requirements of the Code
for any plan year in which the plan benefits any highly compensated
employees.
We have sent a copy of this letter to your representative as
indicated in the power of attorney.
<PAGE>
-2-
TYCO INTERNATIONAL LTD
If you have questions concerning this matter, please contact the person
whose name and telephone number are shown above.
Sincerely yours,
/s/ Herbert J. Huff
Herbert J. Huff
District Director
Enclosures:
Publication 794
Reporting & Disclosure Guide
for Employee Benefit Plans
Exhibit 10.2h
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
P O BOX A-3617 DPN20-6
CHICAGO, IL 60690
Employer Identification Number:
36-2425517
Date: DEC 11 1992 File Folder Number:
360000392
Person to Contact:
JOSEPH SALEMI
ALLIED TUBE AND CONDUIT CORPORATION Contact Telephone Number:
14100 SOUTH LATHROP (312)886-9587
HARVEY, IL 60426 Plan Name:
UNION RETIREMENT SAVINGS AND
INVESTMENT PLAN
Plan Number: 007
Dear Applicant:
We have made a favorable determination on your plan, identified above,
based on the information supplied. Please keep this letter in your
permanent records.
Continued qualification of the plan under its present form will depend
on its effect in operation. (See section 1.401-1(b)(3) of the Income Tax
Regulation.) We will review the status of the plan in operation
periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some features that may affect the
qualified status of your employee retirement plan, and provides information
on the reporting requirements for your plan. It also describes some events
that automatically nullify it. It is very important that you read the
publication.
This letter relates only to the status of your plan under the Internal
Revenue Code. It is not a determination regarding the effect of other
federal or local statutes.
This determination letter is applicable for the amendment(s) adopted
on August 14, 1992.
This letter is based upon the certification and demonstrations you
submitted pursuant to Revenue Procedure 91-66. Therefore, the
certification and demonstrations are considered an integral part of this
letter, Accordingly, YOU MUST KEEP A COPY OF THESE DOCUMENTS AS A
PERMANENT RECORD OR YOU WILL NOT BE ABLE TO RELY ON THE ISSUES DESCRIBED IN
REVENUE PROCEDURE 91-66.
Sections 4.03 and 4.04 of Rev. Proc. 91-66 place limitations upon the
plan years for which this letter may be relied upon as to whether the plan
meets the requirements of Code section 401(a)(4).
<PAGE>
-2-
ALLIED TUBE AND CONDUIT CORPORATION
If you have questions concerning this matter, please contact the
person whose name and telephone number are shown above.
Sincerely yours,
/s/Marilyn W. Day
Marilyn W. Day
District Director
Enclosures#
Publication 794
PWMA 515
Exhibit 10.2i
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
G.P.O. BOX 1680
BROOKLYN, NY 11202 Employer Identification Number:
01-2297459
Date: Feb. 16, 1993 File Folder Number:
113021188
Person to Contact:
SANDRA JORDAN
TYCO LABORATORIES INC Contact Telephone Number:
ONE TYCO PARK (617) 565-7805
EXETER, NH 03833 Plan Name:
ALLIED PHILADELPHIA UNION
RET SAVINGS AND INVESTMENT PLAN
Plan Number: 025
Dear Applicant:
We have made a favorable determination on your plan, identified above,
based on the information supplied. Please keep this letter in your
permanent records.
Continued qualification of the plan under its present form will depend
on its effect in operation. (See section 1.401-1(b)(3) of the Income Tax
Regulations.) We will review the status of the plan in operation
periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some features that may affect the
qualified status of your employee retirement plan, and provides information
on the reporting requirements for your plan. It also describes some events
that automatically nullify it. It is very important that you read the
publication.
This letter relates only to the status of your plan under the Internal
Revenue Code. It is not a determination regarding the effect of other
federal or local statutes.
This determination is subject to your adoption of the proposed
amendments submitted in your letter dated January 12, 1993. The proposed
amendments should be adopted on or before the date prescribed by the
regulations under Code section 401)b).
This plan applies only to employees who can retire and obtain benefits
during the term for which it is drawn; no other employees are considered
covered. Therefore, the provisions of Code section 404 will be applied
only to covered employees.
This determination letter is applicable for the amendment(s) adopted
on August 14, 1992.
This determination letter is applicable for the plan adopted on
January 03, 1991.
This letter does not constitute a determination that your plan
satisfies the requirements of Code section 401(a)(26).
This letter is based upon the certification and demonstrations you
sub-
<PAGE>
-2-
TYCO LABORATORIES INC.
mitted pursuant to Revenue Procedure 91-66. Therefore, the certification
and demonstrations are considered an integral part of this letter.
Accordingly, YOU MUST KEEP A COPY OF THESE DOCUMENTS AS A PERMANENT RECORD
OR YOU WILL NOT BE ABLE TO RELY ON THE ISSUES DESCRIBED IN REVENUE
PROCEDURE 91-66.
The information on the enclosed addendum is an integral part of this
determination. Please be sure to read and keep it with this letter.
We have sent a copy of this letter to your representative as indicated
in the power of attorney.
If you have questions concerning this matter, please contact the
person whose name and telephone number are shown above.
Sincerely yours,
/s/Thomas E. Grace
Thomas E. Grace
Acting District Director
Enclosures:
Publication 794
PW8A 515
Addendum
<PAGE>
-3-
TYCO LABORATORIES INC.
This plan also satisfies the requirements or Code section 401(a)(31).
Exhibit 10.2j
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
G.P.O. BOX 1680
BROOKLYN, NY 11202
Employer Identification Number:
Date: Mar 2 1995 04-2297459
File Folder Number:
023000079
TYCO INTERNATIONAL LTD Person to Contact:
ONE TYCO PARK CYNTHIA GAMBLE
EXETER, NH 03833 Contact Telephone Number:
(516) 683-5393
Plan Name: ANVIL
HOURLY RETIREMENT SAVINGS AND
INVESTMENT PLAN
Plan Number: 030
Dear Applicant:
We have made a favorable determination on your plan, identified above,
based on the information supplied. Please keep this letter in your
permanent records.
Continued qualification of the plan under its present form will depend
on its effect in operation. (See section 1.401-1(b) (3) of the Income Tax
Regulations.) We will review the status of the plan in operation
periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some features that may affect the
qualified status of your employee retirement plan, and provides information
on the reporting requirements for your plan. It also describes some events
that automatically nullify it. It is very important that you read the
publication.
This letter relates only to the status of your plan under the Internal
Revenue Code. It is not a determination regarding the effect of other
federal or local statutes.
This determination letter is applicable for the amendment(s) adopted
on December 16, 1993.
This determination letter is applicable for the plan adopted on
February 1, 1992.
This plan satisfies the minimum coverage and nondiscrimination
requirements of sections 410(b) and 401(a)(4) of the Code because the plan
benefits no highly compensated employees. This letter may not be relied on
with respect to the aforementioned requirements of the Code for any plan
year in which the plan benefits any highly compensated employees.
This letter is issued under Rev. Proc. 93-39 and considers the
amendments required by the Tax Reform Act of 1986 except as otherwise
specified in this letter.
We have sent a copy of this letter to your representative as indicated
in the power of attorney.
<PAGE>
-2-
TYCO INTERNATIONAL LTD
If you have questions concerning this matter, please contact the
person whose name and telephone number are shown above.
Sincerely yours,
/s/ Herbert J. Huff
Herbert J. Huff
District Director
Enclosures:
Publication 794
Reporting & Disclosure Guide
for Employee Benefit Plans
Exhibit 10.2K
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
G.P.O. BOX 1680
BROOKLYN, NY 11202
Employer Identification Number:
01-2297459
Date: FEB 16 1993 File Folder Number:
113021188
Person to Contact:
SANDRA JORDAN
TYCO LABORATORIES Contact Telephone Number:
ONE TYCO PARK (617) 565-7805
EXETER, NH 03833 Plan Name:
GRINNELL CORPORATION OF COLUMBIA
RETIREMENT SAVINGS AND
Plan Number: 029
Dear Applicant:
We have made a favorable determination on your plan, identified above,
based on the information supplied. Please keep this letter in your
permanent records.
Continued qualification of the plan under its present form will depend
on its effect in operation. (See section 1.401-1(b)(3) of the Income Tax
Regulations.) We will review the status of the plan in operation
periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some features that may affect the
qualified status of your employee retirement plan, and provides information
on the reporting requirements for your plan. It also describes some events
that automatically nullify it. It is very important that you read the
publication.
This letter relates only to the status of your plan under the Internal
Revenue Code. It is not a determination regarding the effect of other
federal or local statutes.
This determination is subject to your adoption of the proposed
amendments submitted in your letter dated January 12, 1993. The proposed
amendments should be adopted on or before the date prescribed by the
regulations under Code section 401(b).
This plan applies only to employees who can retire and obtain benefits
during the term for which it is drawn; no other employees are considered
covered. Therefore, the provisions of Code section 404 will be applied only
to covered employees.
This determination letter is applicable for the plan adopted on August
14, 1992.
This letter does not constitute a determination that your plan
satisfies the requirements of Code section 401(a)(26).
This letter is based upon the certification and demonstrations you
submitted pursuant to Revenue Procedure 91-66. Therefore,the certification
and demonstrations are considered an integral part of this letter.
Accordingly, YOU MUST KEEP A COPY OF THESE DOCUMENTS AS A PERMANENT RECORD
OR YOU WILL NOT
<PAGE>
-2-
TYCO LABORATORIES INC.
BE ABLE TO RELY ON THE ISSUES DESCRIBED IN REVENUE PROCEDURE 91-66.
The information on the enclosed addendum is an integral part of this
determination. Please be sure to read and keep it with this letter.
We have sent a copy of this letter to your representative as indicated
in the power of attorney.
If you have questions concerning this matter, please contact the
person whose name and telephone number are shown above.
Sincerely yours,
/s/ Thomas E. Grace
Thomas E. Grace
Acting District Director
Enclosures:
Publication 794
W8A 515
Addendum
<PAGE>
-3-
TYCO LABORATORIES INC.
This plan also satisfies the requirements of Code section 401(a)(31).
Exhibit 10.21
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
G.P.O. BOX 1680
BROOKLYN, NY 11202
Employer Identification Number:
Date: MAR 2 1995 04-2297459
File Folder Number:
023000079
TYCO INTERNATIONAL LTD Person to Contact:
ONE TYCO PARK CYNTHIA GAMBLE
EXETER, NH 03833 Contact Telephone Number:
(516) 683-5393
Plan Name: TYCO CRA
RETIREMENT SAVINGS AND IVESTMENT
PLAN FOR HOURLY EMPLOYEES
Plan Number: 031
Dear Applicant:
We have made a favorable determination on your plan, identified above,
based on the information supplied. Please keep this letter in your
permanent records.
Continued qualification of the plan under its present form will depend
on its effect in operation. (See section 1.401-1(b)(3) of the Income Tax
Regulations.) We will review the status of the plan in operation
periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some features that may affect the
qualified status of your employee retirement plan, and provides information
on the reporting requirements for your plan. It also describes some events
that automatically nullify it. It is very important that you read the
publication.
This letter relates only to the status of your plan under the Internal
Revenue Code. It is not a determination regarding the effect of other
federal or local statutes.
This determination is subject to your adoption of the proposed
amendment submitted in your letter dated 2-15-95. The proposed amendments
should be adopted on or before the date prescribed by the regulations under
Code section 401(b).
This determination letter is applicable for the amendment(s) adopted on
11-28-94.
This determination letter is applicable for the plan adopted on
9-1-92.
This plan satisfies the minimum coverage and nondiscrimination require-
ments of sections 410(b) and 401(a)(4) of the Code because the plan
benefits only collectively bargained employees or employees treated as
collectively bargained employees.
We have sent a copy of this letter to your representative as indicated
in the power of attorney.
<PAGE>
-2-
TYCO INTERNATIONAL LTD
If you have questions concerning this matter, please contact the
person whose name and telephone number are shown above.
Sincerely yours,
/s/ HERBERT J. HUFF
Herbert J. Huff
District Director
Enclosures:
Publication 794
Reporting & Disclosure Guide
for Employee Benefit Plans
EXHIBIT 23.1(b)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement of Tyco International Ltd. on Form S-8 of our reports dated August 1,
1995 on our audit of the consolidated financial statements and financial
statement schedule of Tyco International Ltd. as of and for the years ended June
30, 1995 and 1994.
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
December 8, 1995
EXHIBIT 23.1(c)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our reports dated August 3, 1993 appearing
on pages 20 and S-2 of Tyco International Ltd.'s Annual Report on Form 10-K for
the year ended June 30, 1995.
PRICE WATERHOUSE LLP
Boston, Massachusetts
December 8, 1995
