<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 19, 1996.
Registration No. 333-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------
WYNDHAM HOTEL CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 75-263-6072
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
2001 BRYAN STREET
SUITE 2300
DALLAS, TEXAS 75201
(Address of Principal Executive Offices) (Zip Code)
----------------
WYNDHAM EMPLOYEE SAVINGS & RETIREMENT PLAN
(Full title of the plan)
CARLA S. MORELAND, ESQ.
VICE PRESIDENT - GENERAL COUNSEL
AND SECRETARY
WYNDHAM HOTEL CORPORATION
2001 BRYAN STREET
SUITE 2300
DALLAS, TEXAS 75201
(214) 863-1000
(Name and address, including zip code, and telephone number, including area
code, of agent for service)
----------------
Copy to:
KENT JAMISON
LOCKE PURNELL RAIN HARRELL
(A PROFESSIONAL CORPORATION)
2200 ROSS AVENUE
SUITE 2200
DALLAS, TEXAS 75201
(214) 740-8000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================================================
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price per Aggregate Offering Registration Fee *
Share * Price*
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par 500,000 shares $21.375 $10,687,500 $3,685
value
=========================================================================================================================
</TABLE>
* Estimated solely for the purpose of calculating the registration fee. This
fee was calculated pursuant to Rule 457(c) and (h) under the Securities Act of
1933, as amended, on the basis of the average of the high and low prices for
the Common Stock of the Company on the New York Stock Exchange on July 15,
1996.
In addition, pursuant to Rule 416 under the Securities Act of 1933, as
amended, this Registration Statement also covers (i) shares of Common Stock of
the Company issuable to prevent dilution resulting from stock splits, stock
dividends or similar transactions and (ii) an indeterminate amount of interests
in the employee benefit plan described herein to be offered or sold pursuant to
the plan described herein.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
The information specified by Item 1 of Part I of Form S-8 is omitted
from this filing in accordance with the provisions of Rule 428 under the
Securities Act of 1933, as amended (the "Securities Act"), and the introductory
note to Part I of Form S-8. The document(s) containing the information
specified in Part I will be sent or given to employees as specified by Rule
428(b)(1).
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The information specified by Item 2 of Part I of Form S-8 is omitted
from this filing in accordance with the provisions of Rule 428 under the
Securities Act, and the introductory note to Part I of Form S-8. The
document(s) containing the information specified in Part I will be sent or
given to employees as specified by Rule 428(b)(1).
I-1
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents set forth below are hereby incorporated by reference in
this Registration Statement. All documents subsequently filed by Wyndham Hotel
Corporation, a Delaware corporation (the "Company"), and the Wyndham Employee
Savings & Retirement Plan (the "Plan") pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), prior to the filing of a post-effective amendment that indicates that
the securities offered hereby have been sold or which deregisters the
securities offered hereby then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part
hereof commencing on the respective dates on which such documents are filed.
(1) The Company's prospectus filed May 22, 1996 and
relating to the Form S-1 Registration Statement (Registration Number
333-2214) pursuant to Rule 424(b) under the Securities Act.
(2) All other reports filed pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by
the document referred to in (1) above.
(3) The description of the Company's Common Stock
contained in the Company's Form 8-A Registration Statement filed with
the Commission pursuant to the Exchange Act, including any amendments
or reports filed for the purposes of updating such description.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL")
provides, in effect, that any person made a party to any action by reason of
the fact that he is or was a director, officer, employee or agent of the
Company may and, in certain cases, must be indemnified by the Company against,
in the case of a non-derivative action, judgments, fines, amounts paid in
settlement and reasonable expenses (including attorneys' fees) incurred by him
as a result of such action, and in the case of a derivative action, against
expenses (including attorneys' fees), if in either type of action he acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Company. This indemnification does not apply, in a
derivative action, to matters as to which it is adjudged that the director,
officer, employee or agent is liable to the Company, unless upon court order it
is determined that, despite such adjudication of liability, but in view of all
the circumstances of the case, he is fairly and reasonably entitled to
indemnity for expenses, and, in a non-derivative action, to any criminal
proceeding in which such person had reasonable cause to believe his conduct was
unlawful.
Article 15 of the Company's Amended and Restated Certificate of
Incorporation provides that no director or former director of the Company shall
be liable to the Company or its stockholders for monetary damages for breach of
fiduciary duty as a director to the fullest extent permitted by Delaware law.
II-1
<PAGE> 4
Article 16 of the Company's Amended and Restated Certificate of
Incorporation provides that the Company shall indemnify any and all of its
directors and officers, or former directors and officers, or any person who may
have served at the Company's request as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise.
Reference is made to the underwriting agreements filed as Exhibits
1.1(a) and 1.1(b) to the Company's Registration Statement on Form S-1
(Registration No. 333-2214), pursuant to which the underwriters have agreed to
indemnify officers and directors of the Company against certain liabilities
under the Securities Act.
The Company has entered into Indemnification Agreements with each
director of the Company. Pursuant to such agreements, the Company will, to the
extent permitted by applicable law, indemnify such directors against all
expenses, judgments, fines and penalties incurred in connection with the
defense or settlement of any actions brought against them by reason of the fact
that they were directors of the Company or assumed certain responsibilities at
the direction of the Company. The Company has also purchased directors and
officers liability insurance in order to limit its exposure to liability for
indemnification of directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
EXHIBIT NUMBER DESCRIPTION
-------------- -----------
4.1 Amended and Restated Certificate of Incorporation of
the Company (incorporated by reference to Exhibit 3.1
to the Company's Registration Statement on Form S-1
(Registration Number 333-2214) (the "Form S-1")).
4.2 Amended and Restated Bylaws of the Company
(incorporated by reference to Exhibit 3.2 to the
Form S-1).
23.1 Consent of Coopers & Lybrand L.L.P.
24 Power of Attorney (included on the signature page of
this Registration Statement).
99 Form of Wyndham Employee Savings & Retirement Plan.
The Company hereby undertakes that it will submit or has submitted the
Plan and any amendments thereto to the Internal Revenue Service (the "IRS") in
a timely manner and has made or will make all changes required by the IRS in
order to qualify the Plan under Section 401 of the Internal Revenue Code.
ITEM 9. UNDERTAKINGS.
(a) The Company 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 (the
"Act");
II-2
<PAGE> 5
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the Registration Statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the Registration
Statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the Registration
Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required
to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed
with or furnished to the Securities and Exchange
Commission by the Company pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934
(the "Exchange Act") that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Act, each such post-effective amendment
shall be deemed to be a new registration statement
relating to the securities offered therein, and the
offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(4) That, for purposes of determining any liability under
the Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the
Registration Statement shall be deemed to be a new
registration statement relating to the securities
offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona
fide offering thereof.
(5) Insofar as indemnification for liabilities arising
under the Act may be permitted to directors, officers
and controlling persons of the Company pursuant to
the foregoing provisions, or otherwise, the Company
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 Company of
expenses incurred or paid by a director, officer or
controlling person of the Company 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 Company 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.
II-3
<PAGE> 6
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints James D. Carreker, Anne L. Raymond and
Carla S. Moreland, each of them or any one of them, as his or her true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, to execute in the name and on behalf of such person, in any and
all capacities, any or all amendments (including post-effective amendments) to
this Registration Statement now or hereafter filed by or on behalf of Wyndham
Hotel Corporation (the "Company") covering securities issued or issuable under
or in connection with the Company's Employee Savings & Retirement Plan (as now
or hereafter amended) and to file the same, with all exhibits thereto, and
other documents required in connection therewith, with the Securities and
Exchange Commission and any state or other securities authority, granting unto
said attorneys-in-fact and agents, and each of them or any 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 such person might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, and each of them or any
one of them, or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company 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 Form S-8
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Dallas, State of Texas, on the 30th day of
June, 1996.
WYNDHAM HOTEL CORPORATION
By: /s/ James D. Carreker
----------------------------------
James D. Carreker
President, Chief Executive Officer
and Director
II-4
<PAGE> 7
Pursuant to the requirements of the Securities Act of 1933, this Form
S-8 Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ James D. Carreker President, Chief Executive Officer and June 30, 1996
- ---------------------------------- Director (Principal Executive Officer)
James D. Carreker
/s/ Anne L. Raymond Executive Vice President, June 30, 1996
- ---------------------------------- Chief Financial Officer and Director
Anne L. Raymond (Principal Financial Officer)
/s/ John P. Klumph Vice President-Corporate Controller June 30, 1996
- ---------------------------------- (Principal Accounting Officer)
John P. Klumph
Director June ___, 1996
- ----------------------------------
Harlan R. Crow
/s/ Daniel A. Decker Director June 26, 1996
- -----------------------------------
Daniel A. Decker
Director June ___, 1996
- ----------------------------------
Susan T. Groenteman
/s/ Robert A. Whitman Director June 30, 1996
- ----------------------------------
Robert A. Whitman
/s/ James C. Leslie Director June 30, 1996
- ----------------------------------
James C. Leslie
/s/ Philip J. Ward Director June 27, 1996
- ----------------------------------
Philip J. Ward
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, the
trustee (or other persons who administer the Plan) has duly caused this Form
S-8 Registration Statement to be signed on behalf of the Plan by the
undersigned, thereunto duly authorized, in the City of Dallas, State of Texas,
on the 17th day of July, 1996.
WYNDHAM EMPLOYEE SAVINGS &
RETIREMENT PLAN
By: Wyndham Hotel Corporation
Plan Administrator of the Wyndham
Employee Savings & Retirement Plan
By: /s/ John Klumph
-------------------------------
Printed Name: John Klumph
Title: Vice President-Corporate
Controller
II-5
<PAGE> 8
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
NUMBERED
EXHIBIT NUMBER DESCRIPTION PAGE
-------------- ----------- --------------
<S> <C> <C>
4.1 Amended and Restated Certificate of Incorporation of the Company (incorporated by N/A
reference to Exhibit 3.1 to the Company's Registration Statement on Form S-1
(Registration Number 333-2214) (the "Form S-1"))
4.2 Amended and Restated Bylaws of the Company (incorporated by reference to Exhibit N/A
3.2 to the Form S-1)
23.1 Consent of Coopers & Lybrand L.L.P.
24 Power of Attorney (included on the signature page of this Registration Statement)
99 Form of Wyndham Employee Savings & Retirement Plan
</TABLE>
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
Wyndham Hotel Corporation on Form S-8 (SEC File No. 333-____) of our reports
dated March 8, 1996 and February 27, 1996, on our audits of the financial
statements and schedule of Wyndham Hotel Corporation and Garden Hotel Associates
L.P., respectively as of December 31, 1995 and 1994, and for the years ended
December 31, 1995, 1994 and 1993, appearing in the registration statement on
Form S-1 (SEC File No. 333-2214) of Wyndham Hotel Corporation filed with the
Securities and Exchange Commission pursuant to the Securities Act of 1933.
/s/ COOPERS & LYBRAND L.L.P.
Dallas, Texas
July 18, 1996
<PAGE> 1
EXHIBIT 99
NON-STANDARDIZED PROFIT SHARING/THRIFT PLAN WITH 401(k) FEATURE
ADOPTION AGREEMENT NUMBER 004
This Adoption Agreement when executed by the Employer and accepted by the
Administrator, and the Trustee, if applicable, and accepted by Connecticut
General Life Insurance Company establishes the Employer's Plan and Trust, if
applicable, for the benefit of its eligible Employees and their Beneficiaries.
The terms of the Connecticut General Life Insurance Company Defined
Contribution Plan are expressly incorporated therein and shall form a part
hereof as fully as if set forth herein except that if more than one election is
provided, only that election made by the Employer shall be so incorporated. The
terms of the Plan so incorporated together with the terms of this Adoption
Agreement shall constitute the sole terms of the Employer's Plan and Trust, if
applicable, and no further trust instrument or other instrument of any nature
whatsoever shall be required. The Employer's participation under the Plan shall
be subject to all the terms set forth therein and in this Adoption Agreement.
Name of Employer (Legal Name):
Wyndham Hotel Company LTD. a Texas Limited Partnership
------------------------------------------------------
Address:
Street 2001 Bryan Street
-----------------------------------------------
City Dallas State Texas Zip 75201
--------------------------------------------------
Type of Business:
Hotel Management
------------------------------------------------------
Classification of Business: Employer Tax Status:
Corporation Tax Year Ends 12 31
----- ----- ---
X Partnership Month Day
-----
S Corporation
-----
Sole Proprietorship Tax Basis: Cash
----- -------
Other Accrual
----- -------
----------------
----------------
----------------
-1-
<PAGE> 2
Name of Sponsoring Organization:
Connecticut General Life Insurance Company
P.O. Box 2975
Hartford, CT 06104
Authorized Representative:
Director of Underwriting
(203) 725-2004
Plan Name: Wyndham Employee Savings & Retirement Plan
--------------------------------------------
I. COMPENSATION, Section 1.13
A. Compensation means:
---(1) 415 safe harbor compensation. (See Section 5.8(b)(4) of
Basic Plan Document 02 for the complete definition of this
term.)
---(2) Wages, Tips, and Other Compensation Box on Form W-2. (See
Section 5.8(b)(1) of Basic Plan Document 02 for the
complete definition of this term.)
X (3) Modified Wages, Tips, and Other Compensation Box on Form
--- W-2. (See Section 5.8(b)(2) of Basic Plan Document 02 for
the complete definition of this term.)
---(4) Section 3401(a) wages. (W-2 wages for purposes of income
tax withholding at the source. See Section 5.8(b)(3) of
Basic Plan Document 02 for the complete definition of this
term.)
---(5) Regular or base salary or wages. (See Section 1.13(a) of
Basic Plan Document 02 for the complete definition of this
term.)
---(6) Regular or base salary or wages plus (x) overtime and/or
(x) bonuses. (See Section 1.13(b) of Basic Plan Document 02
for the complete definition of this term.)
Notes: (i) If option (1), (2), (3) or (4) is
elected, you must elect the same
definition of Compensation in Section XX.
C. of this Adoption Agreement.
(ii) Option (5) or (6) may not be elected
by an integrated plan.
(iii) Use of option (5) or (6) requires that
the employer satisfy a compensation
nondiscrimination test.
-2-
<PAGE> 3
I. COMPENSATION (CONT'D)
B. Compensation shall be determined over the following applicable period:
X (1) The Plan Year.
---
(2) A 12 consecutive month period beginning on ________ and ending
--- with or within the Plan Year.
(3) The Plan Year. However, for the Plan Year in which an Employee's
--- participation begins, the applicable period is the portion of the
Plan Year during which the Employee is eligible to participate
in the Plan.
C. Compensation SHALL NOT SHALL X include Employer contributions, made
--- ---
pursuant to a salary deferral agreement, which are not includable in the
gross income of the Employee under section 125, 402(a)(8), 402(h) or
403(b) of the Code.
D. The highest annual Compensation to be used in determining allocations to
a Participant's Account shall be $__________. (Enter dollar amount if
less than the $200,000 indexed amount.)
E. The following shall be selected, and shall be effective in lieu of all
other selections in Section I, in the event an integrated contribution
formula is selected, or if the Plan is top-heavy.
(1) Compensation shall be determined over the following applicable period:
(a) The Plan Year.
---
(b) A 12 consecutive month period beginning on ___________ and
--- ending with or within the Plan Year.
X (c) The Plan Year. However, for the Plan Year in which an
--- Employee's participation begins, the applicable period is the
portion of the Plan Year during which the Employee is
eligible to participate in the Plan.
(2) Compensation SHALL NOT SHALL X include Employer contributions,
--- ---
made pursuant to a salary deferral agreement, which are not
includable in the gross income of the Employee under section 125,
402(a)(8), 402(h) or 403(b) of the Code.
-3-
<PAGE> 4
II. CONTRIBUTION PERIOD, SECTION 1.17
The regular Contribution Period for Matching Contributions shall be:
(a) Annual.
---
(b) Monthly.
---
X (c) 4-Weekly.
---
The regular Contribution Period for Nonelective Contributions shall be:
(a) Annual.
---
(b) Monthly.
---
(c) 4-Weekly.
---
The regular Contribution Period for Elective Deferral Contributions,
Required Employee Contributions and/or Voluntary Employee Contributions
shall be:
(a) Monthly.
---
X (b) 4-Weekly.
---
- -------------------------------------------------------------------------------
III. EARLY RETIREMENT BY PARTICIPANTS, SECTION 1.20
Early Retirement by Participants is:
X (a) Not permitted.
---
(b) Permitted. Participants will have a Vesting Percentage of 100% as
---
of
Age _______ (50-64) _________ Years of Service
(Note: Age only or age and years may be selected.)
-4-
<PAGE> 5
IV. EFFECTIVE DATE, SECTION 1.22
The adoption of the CONNECTICUT GENERAL LIFE INSURANCE COMPANY
Non-Standardized Profit Sharing/Thrift Plan with 401(k) Feature shall:
(a) Establish a new Plan effective as of
--- ------------------------
Month Day Year
X (b) Constitute an amendment and restatement in its entirety of a
--- previously established Qualified Plan of the Employer which
was effective 3/31/91 (hereinafter called the "Effective
-------
Date"). The effective date of this amendment and restatement
is 4/1/95.
------
- --------------------------------------------------------------------------------
V. ELIGIBILITY REQUIREMENTS, SECTION 2.5(a), 3.1
A. To become a Participant an Employee must meet the following
requirements:
X (1) Service Requirement.
---
1 Year(s) of Service. (Not to exceed 1 Year if the Plan
---
provides for graded vesting; not to exceed 2 Years if the
Plan provides full and immediate vesting upon participation.
If the Year(s) of Service selected is or includes a
fractional year, a Participant will not be required to
complete any specified number of Hours of Service to receive
credit for such year. If an annual Entry Date is chosen in
Section VI, the Service Requirement may not exceed 1/2 Year
or 1-1/2 years respectively.)
X (2) Age Requirement.
---
The minimum attained age is 21 years. (Not greater than 21
----
years except if an annual Entry Date is chosen in Section
VI, minimum attained age may not exceed 20-1/2 years.
Employees who were employed on or before the initial Effective Date
of the Plan or the effective date of the amendment and restatement
of the Plan, as indicated in Section IV of the Adoption Agreement,
SHALL NOT X SHALL be immediately eligible without regard to
--- ---
any Age and/or Service requirements specified under this
subparagraph A.
-5-
<PAGE> 6
V. ELIGIBILITY REQUIREMENTS (CONT'D)
B. Job Class Requirement.
An Employee must be a member of one or more of the following selected
classifications:
X (1) Salaried.
---
X (2) Hourly.
---
X (3) Clerical.
---
X (4) Employees whose employment is governed by a collective
--- bargaining agreement represented by the following union:
Warehouse Employees Local #169 .
--------------------------------------
X (5) Other:
---
See Attachment #1
--------------------------------------
--------------------------------------
--------------------------------------.
C. Additional Requirement.
An Employee must be in the following designated division(s) of
--- the Employer:
-------------------------------------
-------------------------------------
-------------------------------------.
D. To become a Participant an Employee must NOT be a member of the
following groups:
(1) Employees included in a unit of Employees covered by a
--- collective bargaining agreement between the Employer and
employee representatives, if retirement benefits were the
subject of good faith bargaining and if two percent or less of
the Employees of the Employer who are covered pursuant to that
agreement are professionals as defined in section 1.410(b)-9(g)
of the proposed regulations. For this purpose, the term
"employee representatives" does not include any organization
more than half of whose members are Employees who are owners,
officers, or executives of the Employer.
X (2) Employees who are nonresident aliens and who receive no earned
--- income from the Employer which constitutes income from sources
within the United States.
-6-
<PAGE> 7
ATTACHMENT #1
(TO THE WYNDHAM EMPLOYEE SAVING AND RETIREMENT PLAN)
V.B.5. For purposes of determining eligibility under the Plan, an
Employee shall also include any person who is a common-law
employee subject to control and supervision by Wyndham Hotel
Company, Ltd. (or a member of a controlled group of corporations
or trades or businesses under common control with Wyndham Hotel
Company, Ltd.) in accordance with the terms of a management
contract entered into with Wyndham Hotel Company, Ltd.
For purposes of determining eligibility under this Plan, Employees
included in any unit of Employees not covered by a collective
bargaining agreement named in Section V.B.(4) of this Adoption
Agreement shall not be eligible to participate in this Plan.
<PAGE> 8
V. ELIGIBILITY REQUIREMENTS (CONT'D)
(3) Employees covered by the following designated qualified
--- employee benefit plan(s):
--------------------------------------------
--------------------------------------------.
- --------------------------------------------------------------------------------
VI. ENTRY DATE, SECTION 1.28
An Employee who meets the eligibility requirements may become a
Participant on the Effective Date, or thereafter:
(a) Immediately.
---
(b) The first day of any month.
---
X (c) Quarterly, (i.e., 3 months apart) on each
---
1 1 , or 4 1 , or
-------- ------- ------- -------
Month Day Month Day
7 1 , or 10 1 .
-------- ------- ------- -------
Month Day Month Day
(d) Semiannually, (i.e., 6 months apart) on each
--- , or
-------- ------- ------- -------.
Month Day Month Day
(e) Annually, on each
--- ------- -------.
Month Day
- --------------------------------------------------------------------------------
-7-
<PAGE> 9
VII. NORMAL RETIREMENT AGE, SECTION 1.48
X (a) The date the Participant attains age 65 (not to exceed 65).
--- ----
(b) The later of:
---
(i) The date the Participant attains age ____ (not to exceed 65).
(ii) The _____ (not to exceed 5th) anniversary of the participation
commencement date. If, for Plan Years beginning before January
1, 1988, Normal Retirement Age was determined with reference to
the anniversary of the participation commencement date (more
than 5 but not to exceed 10 years), the anniversary date for
Participants who first commenced participation under the plan
before the first Plan Year beginning on or after January 1,
1988, shall be the earlier of (A) the tenth anniversary of the
date the Participant commenced participation in the Plan (or
such anniversary as had been elected by the Employer, if less
than 10) or (B) the fifth anniversary of the first day of the
first Plan Year beginning on or after January 1, 1988. The
participation commencement date is the first day of the first
Plan Year in which the Participant commenced participation in
the Plan.
- -------------------------------------------------------------------------------
VIII. PLAN ADMINISTRATOR, SECTION 1.55
NAME:
Wyndham Hotel Company, LTD., a Texas Limited Partnership
--------------------------------------------------------
--------------------------------------------------------
ADDRESS:
2001 Bryan Street
-------------------------------------------------------
STREET
Dallas, Texas 75201
-------------------------------------------------------
CITY STATE ZIP
- -------------------------------------------------------------------------------
IX. PLAN YEAR, SECTION 1.56
The Plan Year will mean:
(a) The 12-consecutive month period commencing on ______________ and
---
each anniversary thereof except that the first Plan Year will
commence on ________________.
(Note: This first Plan Year election may be made only for new
plans.)
X (b) The 12-consecutive month period commencing on 1/1
--- -------------
and each anniversary thereof.
-8-
<PAGE> 10
X. NON-TRUSTEED, TRUST, AND TRUSTEE, SECTION 1.47, 1.65, 1.66
The Plan is:
(a) Non-Trusteed;
---
X (b) Trusteed and the Trustee(s) is (are):
---
Name: Title:
CG Trust Co.
--------------------------------------------- --------------------
--------------------------------------------- --------------------
--------------------------------------------- --------------------
Address:
------------------------------------------------------------
Street
Chicago Illinois
------------------------------------------------------------
City State Zip
-9-
<PAGE> 11
XI. VESTING PERCENTAGE, SECTION 1.69
The Vesting Schedule, based on number of Years of Service, shall be as
follows:
(a) Years of Service Percentage
--- No Requirement 100%
(b) Years of Service Percentage
--- 0-3 Years 0%
3 Years 100%
X (c) Years of Service Percentage
--- 1 Year 20%
2 Years 40%
3 Years 60%
4 Years 80%
5 Years 100%
(d) Years of Service Percentage
--- 0-3 Years 0%
3 Years 20%
4 Years 40%
5 Years 60%
6 Years 80%
7 Years 100%
(e) Years of Service Percentage
--- 0-2 Years 0%
2 Years 20%
3 Years 40%
4 Years 60%
5 Years 80%
6 Years 100%
(f) Years of Service Percentage
--- 0-5 Years 0%
5 Years 100%
(g) Years of Service Percentage
--- 1 Year 25%
2 Years 50%
3 Years 75%
4 Years 100%
(h) Other
---
Years of Service Percentage
---------------- ----------
---------------- ----------
---------------- ----------
---------------- ----------
---------------- ----------
---------------- ----------
---------------- ----------
(Note: (h) must be at least as liberal as (a) through (g).)
- ------------------------------------------------------------------------------
-10-
<PAGE> 12
XII. HOURS OF SERVICE, SECTION 2.3
Hours of Service shall be determined:
X (a) On the basis of actual hours for which an Employee is paid or
--- entitled to payment.
(b) On the basis of days worked. An Employee shall be credited with
--- ten (10) Hours of Service if, under Section 2.3 of the Plan,
such Employee would be credited with at least one (1) Hour of
Service during the day.
(c) On the basis of weeks worked. An Employee shall be credited with
--- forty-five (45) Hours of Service if, under Section 2.3 of the
Plan, such Employee would be credited with at least one (1) Hour
of Service during the week.
(d) On the basis of semimonthly payroll periods. An Employee shall
--- be credited with ninety-five (95) Hours of Service if, under
Section 2.3 of the Plan, such Employee would be credited with at
least one (1) Hour of Service during the semimonthly payroll
period.
(e) On the basis of months worked. An Employee shall be credited
--- with one-hundred-ninety (190) Hours of Service if, under Section
2.3 of the Plan, such Employee would be credited with at least
one (1) Hour of Service during the month.
XIII. EXCLUDED YEARS OF SERVICE, SECTION 2.8
The Vesting Percentage shall be based on all Years of Service (i.e.,
completion of 1000 Hours of Service) except that the following periods
shall be excluded:
(a) Years of Service prior to the time the Participant attained age
--- 18.
(b) Years of Service during which the Employer did not maintain the
--- Plan or a predecessor plan.
(c) Years of Service during which a Participant elected not to
--- contribute to a Plan which required Employee Contributions.
X (d) None of the above.
---
XIV. SERVICE WITH OTHER EMPLOYER(S)
An Employee's service with the following subsidiary or affiliated
employer(s) shall be considered as Service for the purpose of this
Plan.
See Attachment #2
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-11-
<PAGE> 13
ATTACHMENT #2
(TO THE WYNDHAM EMPLOYEE SAVINGS & RETIREMENT PLAN)
XIV. Up to five (5) years of service with Predecessor Employers will be
considered as service with the Employer for all purposes under this
Plan. Predecessor Employer means Trammell Crow Company, the former
employer of employees at the Inn at Semi-ah-Moo, the Checkers
properties, and Dallas Market Center Development Company ("DMC Devco");
provided, however, former employees of DMC Devco shall receive credit
under the Plan for their service with DMC Devco only if such employees
are employed by DMC Devco on December 31, 1995.
<PAGE> 14
XV. SOCIAL SECURITY INTEGRATION LEVEL, SECTION 1.62
X not integrated with Social Security
---
The Social Security Integration Level is:
(a) $_________ (not to exceed the Taxable Wage Base).
---
(b) The Taxable Wage Base in effect on the first day of the Plan Year.
---
(c) ____% of Taxable Wage Base (not to exceed 100%)
---
XVI. CONTRIBUTIONS, SECTION 4.2, 4.8
A. (1) Elective Deferral Contributions
Elective Deferral Contributions will NOT be allowed.
---
Each Participant MAY elect to have his Compensation actually paid
during the Plan Year reduced by:
(a) %
---
X (b) up to 15 %.
--- -----
(c) from ______% to _______%.
---
(d) up to the maximum percentage allowable, not to exceed the
limits of sections 402(g) and 415 of the Code.
Cash bonuses paid within 2-1/2 months after the end of the Plan
Year SHALL NOT SHALL X be subject to the salary deferral
---- -----
election.
(2) Modification, Section 4.2(j)(7) or 4.4 (j)(7)
A Participant may change the amount of Elective Deferral
Contributions that the Participant makes to the Plan (complete
(a), (b) or (c)):
(a) ____ per calendar year (may not be less frequent than once).
---
(b) ____ As of the following date(s) (day/month): 1/1, 4/1,
--- --------------
7/1, 10/1
-----------------------------------------------------------
----------------------------------------------------------.
(c) At any time during the calendar year.
---
B. Required Employee Contributions
X Required Employee Contributions will NOT be made.
---
Required Employee Contributions WILL be made as a condition of
receiving an Employer contribution in the amount of
(a) ____% of Compensation actually paid during the
---
Contribution Period.
(b) Not less than_____%, nor more than _____% of Compensation
---
actually paid during the Contribution Period.
-12-
<PAGE> 15
XVI. CONTRIBUTIONS (CONT'D)
C. Matching Contributions
The Employer will NOT make Matching Contributions
---
For each $1.00 of either Elective Deferral Contributions or Required
Employee Contributions, as selected above, the Employer will
contribute and allocate to each Participant's Matching Contribution
Account an amount equal to:
X (1) $ .25 (e.g., $.50).
--- -------
(2) A discretionary percentage, to be determined by the Employer.
---
The Matching Contribution on behalf of a Participant shall not
exceed:
(1) $_______ for the Plan Year.
---
X (2) 1 % of Participant's Compensation for the Contribution
--- --------
Period.
(3) N/A
---
In addition, at the end of the Plan Year, the Employer may contribute
Additional Matching Contributions to be allocated in the same
proportion that the Matching Contribution made on behalf of each
Participant during the Plan Year bears to the Matching Contribution
made on behalf of all Participants during the Plan Year.
X Yes
---
No
---
D. Nonelective Contributions
(1) Will NOT be made.
---
(2) The contribution for each Contribution Period shall be __%
--- of Considered Net Profits.
(3) The contribution for each Contribution Period shall be __%
--- of Compensation.
(4) For each Contribution Period the Employer will contribute an
--- amount equal to $____________ for each Participant.
X (5) Discretionary.
---
(Note: Complete the following only if (3), (4) or (5) above is
selected.)
Nonelective Contributions SHALL NOT X SHALL ___ be based upon
---
Considered Net Profits.
(Note: If you choose to make a Nonelective Contribution, each
Employee eligible to participate in the Plan and who satisfies the
Allocation Requirements of Section XVIII or XIX, MUST be given an
allocation, regardless of whether they make Elective Deferral
Contributions.)
-13-
<PAGE> 16
XVI. CONTRIBUTIONS (CONT'D)
E. Voluntary Employee Contributions
X (1) Voluntary Employee Contributions will NOT be permitted.
---
(2) Voluntary Employee Contributions WILL be permitted up to
--- _____% of Compensation (not to exceed 10%) actually paid
during the Plan Year.
F. Rollover Contributions
(1) Rollover Contributions will NOT be permitted.
---
X (2) Rollover Contributions WILL be permitted.
---
- -------------------------------------------------------------------------------
XVII. ALLOCATION FORMULA FOR NONELECTIVE CONTRIBUTION, SECTION 4.2(f)
(Note: Complete only if response to Section XVI D. is (2) or (5).)
The Nonelective Contribution will be allocated to Participants who
meet the requirements of Section XVIII or XIX as follows:
X (a) In the same ratio as each Participant's Compensation
--- bears to the total Compensation of all Participants.
(b) Integrated with Social Security. (Select one of the
--- following.)
Step-Rate Method
---
For each Plan Year, the Employer will contribute an amount
equal to _____% of each Participant's Compensation up to the
Social Security Integration Level, plus _____% of each
Participant's Compensation in excess of the Social Security
Integration Level. However, in no event will the excess
contribution percentage exceed the amount specified in
Section 4.2(f)(3)(B) of the Plan.
Maximum Disparity Method
---
For each Plan Year, the Employer's Nonelective Contribution
shall be allocated in the manner stated in the Section
4.2(f)(4) of the Plan in order to maximize permitted
disparity.
- -------------------------------------------------------------------------------
-14-
<PAGE> 17
XVIII. ANNUAL ALLOCATION REQUIREMENTS, SECTION 4.2(g)
An allocation of the annual Nonelective Contribution, annual Matching
Contribution and/or Additional Matching Contribution made by the Employer
will be made to each Participant who:
X (1) Is a Participant on any day during the Plan Year regardless of
--- Hours of Service credited during the Plan Year.
(2) Is credited with 1,000 Hours of Service in the Plan Year for
--- which the contribution is made.
(3) Is a Participant on the last day of the Plan Year.
---
(4) Is credited with 1,000 Hours of Service in the Plan Year for
--- which the contribution is made and is a Participant or the
last day of the Plan Year.
(Note: If (2), (3) or (4) above is selected, nondiscrimination testing
for participation and coverage could be affected.)
(5) In addition, an allocation of the annual Nonelective
--- Contribution, annual Matching Contribution and Additional
Matching Contribution made by the Employer will be made on behalf
of any Participant who retires, dies or becomes disabled during
the Plan Year, regardless of the number of Hours of Service
credited to such Participant and regardless of whether or not
such Participant is a Participant on the last day of the Plan
Year.
- --------------------------------------------------------------------------------
XIX. NONACCRUAL ALLOCATION REQUIREMENTS, SECTION 4.2(g)
An allocation of the nonannual Matching Contribution or nonannual
Nonelective Contribution made by the Employer will be made to each
Participant who:
X (1) Is a Participant on any day of the Contribution Period.
---
(2) Is a Participant as of the last day of the Contribution Period.
---
(3) In addition, an allocation of the nonannual Matching
--- Contribution or nonannual Nonelective Contribution made by the
Employer will be made on behalf of any Participant who retires,
dies, or becomes disabled during the Contribution Period,
regardless of whether or not such Participant is a Participant as
of the last day of the Contribution Period.
(Note: If (2) above is selected, nondiscrimination testing for
participation and coverage could be affected.)
- --------------------------------------------------------------------------------
-15-
<PAGE> 18
XX. LIMITATIONS ON ALLOCATIONS, ARTICLE 5
If you maintain, or at any time maintained, another qualified retirement
plan in which any Participant in this Plan is (or was) a Participant or
could possibly become a Participant, you must complete Part A or B of
this section. You must also complete Part A of this section if you
maintain a welfare benefit fund, as defined in section 419(e) of the
Code, or an individual medical account, as defined in section 415(1)(2)
of the Code, for which amounts are treated as Annual Additions with
respect to any Participant in this Plan.
A. If the Participant is covered by another qualified defined
contribution plan maintained by the Employer, other than a Master
or Prototype plan:
X (1) N/A. The Employer has no other defined contribution plan(s).
---
___ (2) The provisions of Section 5.5 of the Plan will apply, as if
the other plan were a Master or Prototype plan.
___ (3) Provide the method under which the plans will limit total
Annual Additions to the Maximum Permissible Amount, and will
properly reduce any Excess Amounts, in a manner that
precludes Employer discretion.
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------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
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B. If the Participant is or ever has been a Participant in a qualified
defined benefit plan maintained by the Employer:
X (1) N/A. The Employer has no defined benefit plan(s).
---
___ (2) In any Limitation Year, the Annual Additions credited to the
Participant under this Plan may not cause the sum of the
Defined Benefit Plan Fraction and the Defined Contribution
Fraction to exceed 1.0. If the Employer contributions that
would otherwise be allocated to the Participant's account
during such year would cause the 1.0 limitation to be
exceeded, the allocation will be reduced so that the sum of
the fraction equals 1.0. Any contributions not allocated
because of the preceding sentence will be allocated to the
remaining Participants under the allocation formula under
the Plan. If the 1.0 limitation is exceeded because of an
Excess Amount, such Excess Amount will be reduced in
accordance with Section 5.4 of the Plan.
___ (3) Provide the method under which the Plan involved will
satisfy the 1.0 limitation in a manner that precludes
Employer discretion.
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-16-
<PAGE> 19
XX. LIMITATIONS ON ALLOCATIONS, (CONT'D)
C. Compensation will mean all of each Participant's:
X (1) 415 safe-harbor compensation.
---
(2) Wages, Tips, and Other Compensation Box on
--- Form W-2.
(3) Modified Wages, Tips, and Other Compensation Box
--- on Form W-2.
(4) Section 3401(a) wages.
---
XXI. LIMITATION YEAR, SECTION 5.8(i)
The Limitation Year shall be:
(a) The Calendar Year.
---
X (b) A 12-month period coinciding with the Plan Year.
---
(c) A 12-month period beginning on
--- ------- -------.
Month Day
(Note: If (b) or (c) is selected, a Board of Directors' resolution
is necessary.)
XXII. LIFE INSURANCE, SECTION 7.1
X (a) Participants may NOT elect to purchase Life Insurance.
---
(b) Participants MAY elect to purchase Life Insurance.
---
(Note: If (b) is selected, the Plan must be Trusteed.)
XXIII. FORFEITURES, SECTION 10.1, 10.4
Forfeitures will occur upon a:
(a) 1-Year Break-in-Service (Cash-Out Method).
---
X (b) 5 consecutive 1-Year Breaks-in-Service.
---
Forfeitures will be:
X (a) Used as an Employer Credit.
---
(b) Reallocated to Participants' Accounts.
---
(Note: If (b) immediately above is selected and the Plan provides
Matching Contributions, the Actual Contribution Percentage Test
will be affected.)
-17-
<PAGE> 20
XXIV. INVESTMENT OF PARTICIPANT'S ACCOUNT, SECTION 6.1
___ (a) The Participant shall NOT have the authority to direct the
investment of contributions made by the Employer.
X (b) The Participant SHALL have authority to direct the investment
--- of contributions made by the Employer.
XXV. WITHDRAWALS PRECEDING TERMINATION, ARTICLE 11
A. Required Employee Contributions
___ (1) Withdrawal of Required Employee Contributions will NOT be
allowed.
___ (2) Withdrawal of Required Employee Contributions WILL be
allowed.
On the date the withdrawal election becomes effective, the
Participant will have his contributions suspended pursuant to the
terms of Article IV of the Plan for:
___ (1) N/A
___ (2) 6 months.
___ (3) 12 months.
___ (4) 24 months.
Required Employee Contributions may be withdrawn each:
___ (1) 6 months.
___ (2) 12 months.
___ (3) Other ______________.
B. Voluntary Employee Contributions
___ (1) Withdrawal of Voluntary Employee Contributions will NOT be
allowed.
___ (2) Withdrawal of Voluntary Employee Contributions WILL be
allowed.
Voluntary Employee Contributions may be withdrawn each:
___ (1) 6 months.
___ (2) 12 months.
___ (3) Other ______________.
C. Elective Deferral Contributions
X (1) Withdrawal of Elective Deferral Contributions will NOT be
--- allowed.
___ (2) Withdrawal of Elective Deferral Contributions WILL be
allowed.
(Note: Participant must have attained age 59-1/2.)
-18-
<PAGE> 21
XXV. WITHDRAWALS PRECEDING TERMINATION (CONT'D)
D. Employer Contributions (Matching and/or Nonelective Contributions)
X (1) Withdrawal of the vested portion of Employer contributions,
--- pursuant to Section 11.3 of the Plan, will NOT be allowed.
(2) Withdrawal of the vested portion of Employer contributions,
--- pursuant to Section 11.3 of the Plan, WILL be allowed.
If withdrawals of Employer contributions are permitted, the Participant
must satisfy one of the following conditions:
(Note: You may select one or both. If both are selected, withdrawals may
be taken upon satisfaction of either condition, not both.)
(1) The Participant must have been an Active Participant in the Plan
--- for no less than 60 months.
(2) The Participant must have attained the age of 59-1/2.
---
On the date the withdrawal election under (1) immediately above becomes
effective, such Participant will have his contributions suspended
pursuant to the terms of Article IV for:
(1) N/A
---
(2) 6 months.
---
(3) 12 months.
---
(4) 24 months.
---
Employer contributions may be withdrawn each:
(1) 6 months.
---
(2) 12 months.
---
(3) Other ________________.
---
E. Serious Financial Hardship - Elective Deferral Contributions
(1) Withdrawal for Serious Financial Hardship will NOT be allowed.
---
X (2) Withdrawal for Serious Financial Hardship WILL be allowed.
---
F. Serious Financial Hardship - Other than Elective Deferral Contributions
X (1) Withdrawal for Serious Financial Hardship will NOT be allowed.
---
(2) Withdrawal for Serious Financial Hardship WILL be allowed.
---
G. Rollover Contributions
(1) Withdrawal of Rollover Contributions will NOT be allowed.
---
X (2) Withdrawal of Rollover Contributions WILL be allowed.
---
-19-
<PAGE> 22
XXV. WITHDRAWALS PRECEDING TERMINATION (CONT'D)
If this is a readoption of an existing plan, the following withdrawal
option may apply.
H. Qualified Voluntary Employee Contributions (QVEC/IRP Contributions)
(a) Withdrawal of QVEC/IRP Contributions will NOT be allowed.
---
(b) Withdrawal of QVEC/IRP Contributions WILL be allowed.
---
- --------------------------------------------------------------------------------
XXVI. LOANS TO PARTICIPANTS, ARTICLE 12
Loans to Participants are:
(Note: If loans are permitted, the Plan must be Trusteed.)
(a) Not Permitted.
---
X (b) Permitted.
---
- --------------------------------------------------------------------------------
XXVII. JOINT AND SURVIVOR BENEFITS, ARTICLE 9
A. Distribution Forms
X (1) Cash Only
---
(2) Cash and Annuity
---
B. Qualified Preretirement Survivor Annuity, Section 9.3
(1) 100% Qualified Preretirement Survivor Annuity.
---
(2) 50% Qualified Preretirement Survivor Annuity.
---
- --------------------------------------------------------------------------------
XXVIII. TOP-HEAVY PROVISIONS, SECTION 20.2, 20.3
A. When a non-Key Employee is a Participant in both this Plan and a
defined benefit plan maintained by the Employer, indicate which
method shall be utilized to avoid duplication of Top-Heavy minimum
benefits. (Select one of the following.)
X (1) N/A. The Employer has no other plan(s).
---
(2) A minimum non-integrated allocation of contributions and
--- Forfeitures equal to ______% (not less than 5) of each
non-Key Employee's Compensation, as defined in Section
20.2(b) of the Plan, will be allocated to the non-Key
Employee's Participant Account in this Plan, as specified in
the Plan.
-20-
<PAGE> 23
XXVII. TOP-HEAVY PROVISIONS (CONT'D)
(3) A minimum non-integrated allocation of contributions and
--- Forfeitures equal to 7-1/2% of each non-Key Employee's
Compensation, as defined in Section 20.2(b) of the Plan, will
be allocated to the non-Key Employee's Participant Account in
this Plan, as specified in the Plan. (The Defined Benefit and
Defined Contribution Fractions will be computed using 125% if
this choice is selected, for all Plan Years in which this Plan
is Top-Heavy, but not Super Top-Heavy.)
(4) Enter the name of the plan(s) and specify the method under which
--- the plans will provide Top-Heavy Minimum Benefits for non-Key
Employees that will preclude Employer discretion and avoid
inadvertent omissions (include any adjustments required under
Code section 415(e)).
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
(Note: Complete B. only if response to A. is (2), (3) or (4).)
B. Present value: For purposes of establishing present value to
compute the Top-Heavy Ratio, any benefit shall be discounted only
mortality and interest based on the following:
Interest rate: _______% Mortality Table: ________
Valuation date: For purposes of computing the Top-Heavy Ratio, the
valuation date shall be ______________ of each year.
C. Where a non-Key Employee is a Participant in this Plan and a
Participant in another defined contribution plan(s) of the Employer,
indicate which plan will be utilized to provide the minimum Top-Heavy
contribution to avoid duplication of the Top-Heavy minimum
contribution. (Select one of the following.)
X (1) N/A. The Employer has no other plan(s).
---
(2) The minimum allocation shall be as provided in Section
--- 20.2(a) of the Plan.
(3) The minimum allocation applicable to Top-Heavy plans will be
--- met in the other defined contribution plan. (Enter the name
of the plan(s).)
______________________________
______________________________
-21-
<PAGE> 24
XVIII. TOP-HEAVY PROVISIONS (CONT'D)
D. The Vested Interest of each Participant in his Participant's Account
attributable to Employer contributions shall be determined on the
basis of the following:
(Section 1 or 2.)
--- (1) 100% vesting after _____ (not to exceed 3) Years of Service.
X (2) 20 % vesting after 1 Year of Service.
--- -----
40 % (not less than 20) vesting after 2 Years of Service.
-----
60 % (not less than 40) vesting after 3 Years of Service.
-----
80 % (not less than 60) vesting after 4 Years of Service.
-----
100 % (not less than 80) vesting after 5 Years of Service.
-----
100% vesting after 6 Years of Service.
If the vesting schedule under the Plan shifts in or out of the above
schedule for any Plan Year because of the Plan's Top-Heavy status, such
shift is an amendment to the vesting schedule and the election in
Section 17.1 of the Plan applies.
- -------------------------------------------------------------------------------
XXIX. OTHER ADOPTING EMPLOYER(S), SECTION 22.2
The following Adopting Employer(s) also adopt this Plan and have
executed this Adoption Agreement:
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
(Note: Adopting Employers are limited to entities defined in Section
22.2 of the Plan.)
-22-
<PAGE> 25
The Employer hereby adopts the Connecticut General Life Insurance Company
Defined Contribution Prototype Profit Sharing/Thrift Plan with 401(k) Feature,
including all elections made in this Non-Standardized Adoption Agreement, and
the Employer agrees to be bound by all the terms of the Plan and by all the
terms of this Adoption Agreement and of the Annuity Contract. The Employer
further agrees that it will furnish promptly all information required by the
Trustee, if applicable, the Plan Administrator and the Insurance Company in
order to carry out their functions. The Employer shall notify the Trustee, if
applicable, the Plan Administrator and the Insurance Company promptly of any
changes in the status of the Employer which might affect the Employer's duties
and responsibilities hereunder.
The elections under this Adoption Agreement may be changed by the Employer from
time to time by a written instrument signed by the Employer, the Plan
Administrator and the Trustee, if applicable, and accepted by the Sponsor. The
Employer consents to the exercise by the Sponsor of the right to amend the Plan
and the Annuity Contract from time to time as it may deem necessary or
advisable.
By signing this Adoption Agreement, the Employer specifically acknowledges that
the Insurance Company has no authority: (1) to answer legal questions and that
all such questions shall be answered by legal counsel for the Employer; and (2)
to make determinations involved in the administration of the Plan and that all
such determinations shall be answered by the Employer's Plan Administrator or
other designated representative.
Upon execution of this Adoption Agreement by the Employer, the Plan shall be
effective with respect to that Employer as of the Effective Date specified
herein, provided the Plan Administrator and the Trustee, if applicable, shall
then or thereafter execute this Adoption Agreement to signify their acceptance
of their duties and responsibilities hereunder and provided further, the
Sponsor will indicate its acceptance of the Employer in accordance with its
usual rules and practices.
The adopting Employer may not rely on an opinion letter issued by the National
Office of the Internal Revenue Service as evidence that the Plan is qualified
under Internal Revenue Code section 401. In order to obtain reliance with
respect to plan qualification, the Employer must apply to the appropriate key
district office for a determination letter.
Connecticut General Life Insurance Company will inform the Employer of any
amendments made to the Plan or of the discontinuance or abandonment of such
Plan.
CAUTION: You should very carefully examine the elections you have made in this
Adoption Agreement and discuss them with your legal counsel. Failure to
properly fill out the Adoption Agreement may result in disqualification of your
plan.
-23-
<PAGE> 26
This Adoption Agreement may only be used in conjunction with Basic Plan
Document Number 02.
(Note: The Employer, Plan Administrator and Trustee, if applicable, must all
sign below.)
Executed at Dallas, TX , this 29th day of December , 1995
---------------- ---------- ----------------
Wyndham Hotel Company, LTD., a Texas Limited Partnership
---------------------------------------------------
(Employer's Exact Name)
By: Wyndham Hotel Management Corporation, Its General Partner
/s/ D. G. SWEENEY By (ILLEGIBLE)
- ---------------------------------------------------------------------------
(Witness)
Treasurer of General Partner
----------------------------------------------------
(Title)
----------------------------------------------------
(Additional Adopting Employer's Exact Name)
By
- -----------------------------------------------------------------------------
(Witness)
------------------------------------------------------
(Title)
------------------------------------------------------
(Additional Adopting Employer's Exact Name)
By
- -----------------------------------------------------------------------------
(Witness)
------------------------------------------------------
(Title)
ACCEPTED this day of , 19 .
------ ----------- ------
By
- ------------------------------------------------------------------------------
(Witness) (Administrator)
By
- ------------------------------------------------------------------------------
(Witness) (Administrator)
By
- -------------------------------------------------------------------------------
(Witness) (Administrator)
-24-
<PAGE> 27
By
- -------------------------------------------------------------------------------
(Witness) (Trustee)
By
- -------------------------------------------------------------------------------
(Witness) (Trustee)
By
- -------------------------------------------------------------------------------
(Witness) (Trustee)
ACCEPTED this day of , 19 .
------- ----------- ------
CONNECTICUT GENERAL LIFE INSURANCE COMPANY
By:
-------------------------------------------
(Authorized Representative)
-25-
<PAGE> 28
AMENDMENT TO THE ADOPTION AGREEMENT
TO THE
WYNDHAM EMPLOYEE SAVINGS & RETIREMENT PLAN
WHEREAS, Wyndham Hotel Company, LTD., a Texas limited partnership
(hereinafter referred to as the "Employer") previously established the Wyndham
Employee Savings & Retirement Plan (as restated effective April 1, 1995)
(hereinafter referred to as the "Plan"), for the benefit of its eligible
employees and their beneficiaries; and
WHEREAS, the Employer reserved the right to amend the Plan under the terms
thereof; and
WHEREAS, the Employer desires to amend the Plan's Adoption Agreement to
permit the Employer to make Matching Contributions and Nonelective
Contributions at the end of each calendar quarter;
NOW, THEREFORE, effective April 1, 1995, the Adoption Agreement is hereby
amended as follows:
Article II of the Adoption Agreement for the Plan is hereby deleted, and
the following Article II is inserted in lieu thereof:
"II. CONTRIBUTION PERIOD, SECTION 1.17
The regular Contribution Period for Matching Contributions shall
be:
(a) Annual.
---
(b) Monthly.
---
(c) 4-Weekly.
---
X (d) Quarterly.
---
The regular Contribution Period for Nonelective Contributions
shall be:
(a) Annual.
---
(b) Monthly.
---
(c) 4-Weekly.
---
X (d) Quarterly.
---
<PAGE> 29
The regular Contribution Period for Elective Deferral
Contributions, Required Employee Contributions and/or
Voluntary Employee Contributions shall be:
(a) Monthly.
---
X (b) 4-Weekly."
---
IN WITNESS WHEREOF, the Employer, the Administrator and the Trustee
have hereunto affixed their signatures.
EMPLOYER:
WYNDHAM HOTEL COMPANY, LTD., a
Texas limited partnership
By: /s/ JOHN KLUMPH
--------------------------------
Title: Treasurer of General Partner
-----------------------------
PLAN ADMINISTRATOR:
Wyndham Hotel Company, LTD., a Texas
limited partnership
By: /s/ JOHN KLUMPH
--------------------------------
Title: Treasurer of General Partner
-----------------------------
TRUSTEE:
C.G. Trust Company
By:
--------------------------------
Title:
----------------------------
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<PAGE> 30
CONNECTICUT GENERAL LIFE INSURANCE COMPANY
DEFINED CONTRIBUTION PLAN
BASIC PLAN DOCUMENT NUMBER 02
<PAGE> 31
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ARTICLE CONTENTS PAGE
<S> <C> <C>
I Definitions 1
II Service 16
III Eligibility, Enrollment and Participation 21
IV Contributions and Allocations 24
V Limitations on Allocations 50
VI Annuity Contract and Participant's Account 59
VII Life Insurance Policies 60
VIII Distribution of Benefits 63
IX joint and Survivor Annuity Requirements 73
X Termination of Employment 79
XI Withdrawals 82
XII Loans to Participants 86
XIII Fiduciary Duties and Responsibilities 88
XIV The Plan Administrator 89
XV Participants' Rights 91
XVI The Insurance Company 93
XVII Amendment or Termination of the Plan 94
XVIII Substitution of Plans 97
XIX Miscellaneous 98
XX Top-Heavy Provisions 101
XXI Trust Agreement 106
XXII Adopting Employer 111
</TABLE>
<PAGE> 32
CONNECTICUT GENERAL LIFE INSURANCE COMPANY
GROUP PENSION PROTOTYPE PLAN
BASIC PLAN DOCUMENT NUMBER 02
The Plan set forth herein may be adopted by an Employer and accepted by the
Plan Administrator and, if applicable, the Trustee by executing an Adoption
Agreement, which together shall constitute the Employer's Plan, for the
exclusive benefit of its eligible Employees and their Beneficiaries, as fully
as if set forth in said Adoption Agreement; provided, however, no Employer may
adopt this Plan except with the consent of Connecticut General Life Insurance
Company.
ARTICLE I
DEFINITIONS
1.1 ACCRUED BENEFIT. The term Accrued Benefit means the value on any
applicable date of the Participant's Account and if applicable, of any
Life Insurance Policies on his life.
1.2 ACTIVE PARTICIPANT. The term Active Participant means any Participant
who performs duties as an Employee for the Employer and is not an
Inactive Participant.
1.3 ACTUAL DEFERRAL PERCENTAGE. The term Actual Deferral Percentage (ADP)
shall mean, for a specified group of Participants for a Plan Year, the
average of the ratios (calculated separately for each Participant in
such group) of (1) the amount of Employer contributions actually paid to
the Trust or Insurance Company on behalf of such Participant for the
Plan Year to (2) the Participant's Compensation for such Plan Year.
Employer contributions on behalf of any Participant shall include: (1)
any Elective Deferral Contributions made pursuant to the Participant's
deferral election, including Excess Elective Deferral Contributions of
Highly Compensated Employees, but excluding Elective Deferral
Contributions that are taken into account in the Average Contribution
Percentage (ACP) Test (provided the ADP test is satisfied both with and
without exclusion of these Elective Deferral Contributions); and (2) if
elected by the Employer in the Adoption Agreement, Qualified Nonelective
Contributions and Qualified Matching Contributions. For purposes of
computing the Actual Deferral Percentages, an Employee who would be a
Participant but for the failure to make Elective Deferral Contributions,
shall be treated as a Participant on whose behalf no Elective Deferral
Contributions are made.
1.4 ADDITIONAL MATCHING CONTRIBUTIONS. The term Additional Matching
Contributions shall mean discretionary contributions made to the Plan by
the Employer, as authorized by its Board of Directors by resolution.
Additional Matching Contributions' shall be treated as Matching
Contributions for nondiscrimination testing and allocation purposes.
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<PAGE> 33
1.5 ADOPTION AGREEMENT. The term Adoption Agreement means the prescribed
agreement by which the Employer adopts this Plan, and which sets forth
the elective provisions of this Plan specified by the Employer.
1.6 AGGREGATE LIMIT. The term Aggregate Limit shall mean the sum of (i) 125
percent of the greater of the ADP of the non-Highly Compensated
Employees for the Plan Year or the ACP of 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 CODA and (ii) the
lesser of 200% or two plus the lesser of such ADP or ACP. ""Lesser" is
substituted for "" greater" in ""(i)", above, and ""greater" is
substituted for ""lesser" after ""two plus the in ""(ii)" if it would
result in a larger Aggregate Limit.
1.7 ANNUITY. The term Annuity means a series of payments made over a
specified period of time which, for a Fixed Annuity are equal, specified
amounts, and which for a Variable Annuity increase or decrease to
reflect changes in investment performance of the underlying portfolio.
1.8 ANNUITY CONTRACT. The term Annuity Contract means the group annuity
contract form issued by the Insurance Company to fund the benefits
provided under this Plan, as such contract may be amended from time to
time in accordance with the terms thereof. The Employer will specify in
its Adoption Agreement the types of investments available under this
Plan.
1.9 AVERAGE CONTRIBUTION PERCENTAGE (ACP). The term Average Contribution
Percentage shall mean the average of the Contribution Percentages of the
Eligible Participants in a group.
1.10 BENEFICIARY. The term Beneficiary means the beneficiary or beneficiaries
entitled to any benefits under a Participant's Account hereunder upon
the death of a Participant or Beneficiary or an alternate payee pursuant
to a Qualified Domestic Relations Order as defined in section 414(p) of
the Code. If any Life Insurance Policy is purchased on the life of a
Participant hereunder, the Beneficiary under such Policy shall be
designated separately therein. Beneficiary designations are subject to
the terms of Article IX. A designated Beneficiary must be an individual.
1.11 BOARD OF DIRECTORS. The term Board of Directors means the Employer's
board of directors or other comparable governing body.
1.12 CODE. The term Code means the Internal Revenue Code of 1986, as amended
from time to time.
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<PAGE> 34
1.13 COMPENSATION. The term Compensation shall mean Compensation as that term
is defined in section 5.8(b) of the Plan. For any self-employed
individual covered under the Plan, Compensation will mean earned income.
Compensation shall include only that Compensation which is actually paid
to the Participant during the applicable period. Except as provided
elsewhere in this Plan, the applicable period shall be the period
elected by the Employer in the Adoption Agreement. If the Employer makes
no election, the applicable period shall be the Plan Year.
In lieu of the definition of Compensation in Section 5.8(b) of the Plan,
for purposes of allocating contributions, an Employer may elect in the
Adoption Agreement to use one of the following alternative definitions
of Compensation:
(a) Regular or base salary or wages. Regular or base salary or wages
(excluding overtime and bonuses) received during the applicable
period by the Employee from the Employer. This definition may not
be used by integrated or standardized plans.
(b) Regular or base salary wages plus overtime and/or bonuses. Regular
or base salary or wages, plus either or both overtime and/or
bonuses, as elected by the Employer in the Adoption Agreement,
received during the applicable period by the Employee from the
Employer. This definition may not be used by integrated or
standardized plans.
Notwithstanding the above, 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 sections 125,
402(a)(8), 402(h) or 403(b) of the Code.
For years beginning after December 31, 1988, the annual Compensation of
each Participant taken into account under the Plan for any year shall
not exceed $200,000. This limitation shall be adjusted by the Secretary
at the same time and in the same manner as under section 415(d) of the
Code, (unless a lesser amount is elected by the Employer in the Adoption
Agreement) except that the dollar increase in affect on January 1 of any
calendar year is effective for years beginning in such calendar year and
the first adjustment to the $200,000 limitation is effected on January
1, 1990. If a plan determines Compensation on a period of time that
contains fewer than 12 calendar months, then the annual Compensation
limit is an amount equal to the annual Compensation limit for the
calendar year in which the compensation period begins multiplied by the
ratio obtained by dividing the number of full months in the period of
12.
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<PAGE> 35
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 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 year. If, as a
result of the application of such rules the adjusted $200,000 limitation
is exceeded, then (except for purposes of determining the portion of
Compensation up to the integration level if this Plan provides for
permitted disparity), 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.
If Compensation for any prior Plan Year is taken into account in
determining an Employee's contributions or benefits for the current
year, the Compensation for such prior year is subject to the applicable
annual Compensation limit in effect for that prior year. For this
purpose, for years beginning before January 1, 1990, the applicable
annual Compensation limit is $200,000.
1.14 CONSIDERED NET PROFITS. The term Considered Net Profits means the entire
amount of the accumulated or current operating profits (excluding
capital gains from the sale or involuntary conversion of capital or
business assets) of the Employer after all expenses and charges other
than (1) the Employer contribution to this and any other qualified plan,
and (2) federal or state or local taxes based upon or measured by
income, as determined by the Employer, either on an estimated basis or a
final basis, in accordance with the generally accepted accounting
principles used by the Employer. When the amount of Considered Net
Profits has been determined by the Employer, and the Employer
contribution made on the basis of such determination, for any Plan Year,
such determination and contribution shall be final and conclusive and
shall not be subject to change because of any adjustments in income or
expense which may be required by the Internal Revenue Service or
otherwise. Such determination and Contribution shall not be open to
question by any Participant either before or after the Employer
contribution has been made.
In the case of an entity that is a non-profit entity, including a
government body, the term Considered Net Profits shall mean the entire
amount of the accumulated or current operating surplus (excluding
capital gains from the sale or involuntary conversion of capital or
business assets) of the Employer after all expenses and charges other
than (1) the contribution made by the Employer to the Plan, and (2)
federal or state or local taxes based upon or measured by income, in
accordance with the generally accepted accounting principles used by the
Employer.
A state or local government or political subdivision thereof, or any
agency or instrumentality thereof, or any organization exempt from tax
under Subtitle A of the Code, may not elect a 401(k) option in the
Adoption Agreement.
1.15 CONTRIBUTION PERCENTAGE. The term Contribution Percentage shall mean the
ratio (expressed as a percentage) of the Participant's Contribution
Percentage Amounts to the Participant's Compensation for the Plan Year
(whether or not the Employee was a Participant for the entire Plan
Year).
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<PAGE> 36
1.16 CONTRIBUTION PERCENTAGE AMOUNTS. The term Contribution Percentage Amount
shall mean the sum of the Employee Contributions, Matching
Contributions, Qualified Matching Contributions and Qualified
Nonelective Contributions (to the extent not taken into account for
purposes of the ADP test) made under the Plan on behalf of the
Participant for the Plan Year. Such Contribution Percentage Amounts
shall include forfeitures of Excess Aggregate Contributions or Matching
Contributions allocated to the Participant's Account that shall be taken
into account in the year in which such forfeiture is allocated. The
Employer may elect to use Elective Deferrals in the Contribution
Percentage Amounts so long as the ADP test (as defined in section 4.5
(a)) is met before the Elective Deferrals are used in the ACP test (as
defined in section 4.5(c)) and continues to be met following the
exclusion of those Elective Deferrals that are used to meet the ACP
test.
1.17 CONTRIBUTION PERIOD. The term Contribution Period means that regular
period (not less than four weeks nor more than one year) specified by
the Employer in its Adoption Agreement for which the Employer shall make
Employer contributions, if any, and that regular period (either monthly
or every four weeks) specified by the Employer in its Adoption Agreement
for which Participants may make Employee Contributions, if any. In the
case of a Small Case Product Profit Sharing Plan, the Contribution
Period shall always be annual. The first Contribution Period may be an
irregular period, not longer than one month, commencing not prior to the
Effective Date.
1.18 DISABILITY. The term Disability means a Participant's incapacity to
engage in any substantial gainful activity because of a medically
determinable physical or mental impairment which 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 12 months. The performance and degree
of such impairment shall be supported by medical evidence.
1.19 DISABILITY RETIREMENT DATE. The term Disability Retirement Date means
the first day of the month after the Administrator has determined that a
Participant's incapacity is a Disability. A Participant who retires from
the Service of the Employer as of his Disability Retirement Date shall
have a Vesting Percentage of 100% and shall receive a distribution of
the entire value of his Participant's Account and any policies on his
life, or the values thereof, as of his Disability Retirement Date,
subject to the provisions of Article VIII and Article IX.
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<PAGE> 37
1.20 EARLY RETIREMENT DATE. If the Employer has specified in its Adoption
Agreement that Early Retirement is permitted, then the term Early
Retirement Date means the first day of the month coinciding with or next
following the date a Participant is separated from Service with the
Employer for any reason other than death or Disability, provided that on
such date the Participant has attained the conditions specified by the
Employer in its Adoption Agreement and has not attained his Normal
Retirement Age. A Participant who retires from the Service of the
Employer on his Early Retirement Date shall have a Vesting Percentage of
100% and shall receive a distribution of the entire value of his
Participant's Account and any policies on his life, or the values
thereof, as of his Early Retirement Date, subject to the provisions of
Article VIII and Article DC.
If a Participant separates from Service before satisfying the age
requirement for Early Retirement, but has satisfied the service
requirement, the Participant shall be 100% vested and will be entitled
to elect an Early Retirement benefit upon satisfaction of such age
requirement.
1.21 EARNED INCOME. The term Earned Income means the net earnings from
self-employment in the trade or business with respect to which the Plan
is established, for which personal services of the individual are a
material income- producing factor. Net earnings will be determined
without regard to items not included in gross income and the deductions
allocable to such items. Net earnings are reduced by contributions by
the Employer to a qualified plan to the extent deductible under section
404 of the Code.
Net earnings shall be determined with regard to the deductions allowed
to the taxpayer by section 164(f) of the Code for taxable years
beginning after December 31, 1989.
1.22 EFFECTIVE DATE. The term Effective Date means the date specified by the
Employer in its Adoption Agreement as the Effective Date of the Plan
applicable to the Employer.
1.23 ELECTIVE DEFERRAL CONTRIBUTIONS.The term Elective Deferral Contributions
shall mean contributions made by the Employer to the Plan at the
election of the Participant, in lieu of cash compensation, and shall
include contributions made pursuant to a salary deferral agreement or
other deferral mechanism. With respect to any taxable year, a
Participant's elective deferral is the sum of all Employer contributions
made on behalf of such Participant pursuant to an election to defer
under any CODA as described in section 401 (k) of the Code, any
simplified employee pension cash or deferred arrangement as described in
section 402(h)(1)(B), any eligible deferred compensation plan as
described in section 457, any plan described in section 501(c)(18), and
any Employer contributions made on the behalf of a Participant for the
purchase of an annuity contract under section 403(b) pursuant to a
salary reduction agreement.
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<PAGE> 38
1.24 ELIGIBLE PARTICIPANT. The term Eligible Participant shall mean any
Employee who is eligible to make an Employee Contribution, or an
Elective Deferral Contribution (if the Employer takes such contributions
into account in the calculation of the Contribution Percentage), or to
receive a Matching Contribution (including forfeitures) or a Qualified
Matching Contribution. If an Employee Contribution is required as a
condition of participation in the Plan, any Employee who would be a
Participant in the Plan if such Employee made such a contribution shall
be treated as an Eligible Participant on behalf of whom no Employee
Contributions are made.
1.25 EMPLOYEE. The term Employee means any employee of the Employer
maintaining the Plan or any other employer required to be aggregated
with such Employer under sections 414(b), (c), (m), or (o) of the Code.
The term Employee also includes any Leased Employee deemed to be an
Employee of the Employer in accordance with sections 414(n) or (o) of
the Code.
1.26 EMPLOYEE CONTRIBUTIONS. The term Employee Contributions shall mean
contributions to the Plan or any other plan, that are designated or
treated at the time of contribution as after-tax Employee Contributions
and are allocated to a separate account to which the attributable
earnings and losses are allocated. Such term includes Employee
Contributions applied to the purchase of whole life insurance protection
or survivor benefit protection, Required Employee Contributions,
Voluntary Employee Contributions, and contributions formerly made to
this Plan as Participant VIP Contributions.
1.27 EMPLOYER. The term Employer shall mean the employer that adopts this
Plan. In the case of a group of Employers which constitutes a controlled
group of corporations (as defined in Code section 414(b) as modified by
section 415 (h)) or which constitutes trades or businesses (whether or
not incorporated) which are under common control (as defined in section
414(c) as modified by section 415(h)) or which constitutes an affiliated
service group (as defined in section 414(m)), Service with all such
Employers shall be considered Service with the Employer for purposes of
eligibility and vesting. The term Employer shall also mean any Adopting
Employer as defined in Section 22.2.
1.28 ENTRY DATE. The term Entry Date means either the Effective Date or each
applicable date thereafter as specified by the Employer in its Adoption
Agreement), when an Employee who has fulfilled the eligibility
requirements commences participation in the Plan.
If an Employee is not in the active Service of the Employer as of his
initial Entry Date, his subsequent Entry Date shall be the date he
returns to the active Service of the Employer, provided he still meets
the eligibility requirements. If an Employee does not enroll as a
Participant as of his initial Entry Date, his subsequent Entry Date
shall be the applicable Entry Date as specified by the Employer in the
Adoption Agreement when the Employee actually enrolls as a Participant.
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<PAGE> 39
1.29 ERISA. The term ERISA means the Employee Retirement Income Security Act
of 1974 (PL93-406) as it may be amended from time to time, and any
regulations issued pursuant thereto as such Act and such regulations
affect this Plan and Trust.
1.30 EXCESS AGGREGATE CONTRIBUTIONS. The term Excess Aggregate Contributions
shall mean with respect to any Plan Year the excess of:
(a) The aggregate Contribution Percentage Amounts taken into account in
computing the numerator of the Contribution Percentage actually
made on behalf of Highly Compensated Employees for such Plan Year,
over
(b) The maximum Contribution Percentage Amounts permitted by the ACP
test (determined by reducing contributions made on behalf of Highly
Compensated Employees in order of their Contribution Percentages
beginning with the highest of such percentages). Such determination
shall be made after first determining Excess Elective Deferral
Contributions, pursuant to 4.6(a) and then determining Excess
Contributions pursuant to section 4.6(b).
1.31 EXCESS CONTRIBUTIONS. The term Excess Contributions shall mean, with
respect to any Plan Year, the excess of:
(a) The aggregate amount of Employer contributions actually taken into
account in computing the ADP of Highly Compensated Employees for
such Plan year, over
(b) The maximum amount of such contributions permitted by the ADP test
(determined by reducing contributions made on behalf of Highly
Compensated Employees in order of the ADPS, beginning with the
highest of such percentages).
1.32 EXCESS ELECTIVE DEFERRAL CONTRIBUTIONS. The term Excess Elective
Deferral Contributions shall mean those Elective Deferral Contributions
that are includible in a Participant's gross income under section 402(g)
of the Code to the extent such Participant's Elective Deferral
Contributions for a taxable year exceed the dollar limitation under such
Code section. Excess Elective Deferral Contributions shall be treated as
annual additions under the Plan pursuant to Article V.
1.33 FIDUCIARY. The term Fiduciary means any, or all, of the following, as
applicable:
(a) Any Person who exercises any discretionary authority or control
respecting the management of the Plan or its assets;
(b) Any Person who renders investment advice for a fee or other
compensation, direct or indirect, respecting any monies or other
property of the Plan or has authority or responsibility to do so;
(c) Any Person who has discretionary authority or responsibility in the
administration of the Plan;
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<PAGE> 40
(d) Any Person who has been designated by a Named Fiduciary pursuant to
authority granted by the Plan, who acts to carry out a fiduciary
responsibility, subject to any exceptions granted directly or
indirectly by ERISA.
1.34 FIXED ANNUITY. The term Fixed Annuity means an annuity providing a
series of payments that are payable in specified dollar amounts.
1.35 FORFEITURE. The term Forfeiture means the amount, if any, by which the
value of a Participant's Account plus the value of any Life Insurance
Policies on his life exceeds his Vested Interest upon the occurrence of
a 1-Year Break-in-Service or 5 consecutive 1-Year Breaks-in-Service, as
elected by the Employer in its Adoption Agreement pursuant to Section
10.4, following such Participant's Termination of Employment.
1.36 HIGHLY COMPENSATED EMPLOYEE. The term Highly Compensated Employee
includes highly compensated active employees and highly compensated
former employees.
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; (1) received Compensation from the Employer in
excess of $75,000 (as adjusted pursuant to section 415(d) of the Code)-,
(2) 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 (3) was an officer of the Employer and
received compensation during such year that is greater thin 50 percent
of the dollar limitation in effect under section 415 (b) (1) (A) of the
Code. The term Highly Compensated Employee also includes: (1) employees
who are described in the preceding sentence if the term "determination
year" is substituted for the term "look-back year" and who are one of
the 100 employees who received the most compensation from the Employer
during the determination year; and (2) 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 (3) 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.
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.
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<PAGE> 41
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 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. For purposes of
this section, family member includes the spouse, lineal ascendants and
descendants of the employee or former employee and the spouses of such
lineal ascendants and descendants.
The determination of who is a Highly Compensated Employee, including the
determinations of the number and identity of the employees in the
top-paid group, the top 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.
Determination year shall mean the Plan Year. The look-back year is the
twelve-month period immediately preceding the Plan Year.
For purposes of this definition, Compensation shall mean compensation as
defined in section 415(c)(3) of the Code.
1.37 INACTIVE PARTICIPANT. The term Inactive Participant means any
Participant who does not currently meet the requirements to be an Active
Participant due to a suspension of the performance of duties for the
Employer. In addition, a Participant who ceases to meet the eligibility
requirements in accordance with Section 3.1 shall be considered an
Inactive Participant.
1.38 INSURANCE COMPANY. The term Insurance Company or sponsor means
Connecticut General Life Insurance Company, a legal reserve life
insurance company of Hartford, Connecticut. If any company other than
Connecticut General Life Insurance Company has issued any Life Insurance
Policy held by the Trustee under the Plan, then with respect to such
Policy only and matters pertaining directly thereto, the term Insurance
Company shall be deemed to refer to such other issuing company.
1.39 IRP CONTRIBUTIONS. The term IRP Contributions formally defined as
IRA/VIP or Tax Deductible Qualified Voluntary Employee Contributions
(QVEC), are voluntary amounts paid by the Participant which the
Participant designated in writing are eligible for a tax deduction under
Code section 219.
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<PAGE> 42
1.40 JOINT AND SURVIVOR ANNUITY. The term joint and Survivor Annuity means an
immediate annuity for the life of the Participant with a survivor
annuity for the life of the Participant's spouse which is not less than
one-half, nor greater than, the amount of the annuity payable during the
joint lives of the Participant and the Participant's spouse. The joint
and Survivor Annuity will be the amount of benefit which can be
purchased with the Participant's account balance. The percentage of the
survivor annuity under the plan shall be 50 percent (unless a different
percentage is elected by the Participant).
1.41 LATE RETIREMENT DATE. The term Late Retirement Date means the first day
of the month coinciding with or next following the date a Participant is
separated from Service with the Employer after his Normal Retirement
Age, for any reason other than death.
1.42 LEASED EMPLOYEE. The term Leased Employee means any person (other than
an employee of the recipient) who, pursuant to an agreement between the
recipient and any other person, (.... leasing organization") has
performed services for the recipient (or for the recipient and related
persons determined in accordance with section 414(n)(6) of the Code) on
a substantially full-time basis for a period of at least one year, and
such services are of a type historically performed by employees in the
business field of the recipient employer. Contributions or benefits
provided a Leased Employee by the leasing organization which are
attributable to services performed for the recipient employer shall be
treated as provided by the recipient employer.
A Leased Employee shall not be considered an Employee of the recipient
if: (1) such employee is covered by a money purchase pension plan of the
leasing organization providing: (a) a nonintegrated Employer
contribution rate of at least 10 percent of Compensation, as defined in
section 415 (c) (3) of the Code, 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, section
402(a)(8), section 402(h) or section 403(b) of the Code, (b) immediate
participation, and (c) full and immediate vesting; and (2) Leased
Employees do not constitute more than 20 percent of the recipient's
non-highly compensated work force.
1.43 LIFE INSURANCE POLICY. The term Life Insurance Policy (or Policy) means
a policy of individual life insurance purchased from the Insurance
Company on the life of any Participant.
1.44 MATCHING CONTRIBUTIONS. The term Matching Contributions shall mean
contributions made by the Employer to the Plan on behalf of a
Participant on account of either Elective Deferral Contributions or
Employee Contributions. In addition, any Forfeiture reallocated as a
Matching Contribution shall be considered a Matching Contribution for
purposes of this Plan. Matching Contributions shall be made out of
Considered Net Profits in an amount specified by the Employer in its
Adoption Agreement, for each $1.00 contributed as either an Elective
Deferral Contribution or a Required Employee Contribution, as further
specified by the Employer in its Adoption Agreement.
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<PAGE> 43
Matching Contributions shall be reduced by any Forfeiture available as
an Employer credit, if applicable, in accordance with Section 10.4(b).
Should there be insufficient Considered Net Profits of the Employer for
such Employer contribution, the amount of such Contribution may be
diminished to the amount that can be made from the Employer's Considered
Net Profits.
The Employer may designate at the time of contribution that all or a
portion of such Matching Contribution be treated as Qualified Matching
Contributions.
1.45 NAMED FIDUCIARY. The term Named Fiduciary means the Administrator and
any other Fiduciary designated by the Employer, and any successor
thereto.
1.46 NONELECTIVE CONTRIBUTIONS. The term Nonelective Contributions shall mean
contributions made to the Plan by the Employer in accordance with a
definite formula as specified in the Adoption Agreement. The Employer
may designate at the time of Contribution that the Nonelective
Contribution shall be treated as a Qualified Nonelective Contribution.
1.47 NON-TRUSTEED. The term Non-Trusteed means that the Employer has
specified in the Adoption Agreement that there will not be a Trust as a
part of the Plan. Contributions under a Non-Trusteed plan will be made
directly to the Insurance Company. If the Employer specifies in the
Adoption Agreement that the Plan is Non-Trusteed then the terms and
provisions of this Plan relating to the Trust shall be of no force or
effect.
1.48 NORMAL RETIREMENT AGE. The term Normal Retirement Age means the age
selected in the Adoption Agreement. If the Employer enforces a mandatory
retirement age, the Normal Retirement Age is the lesser of that
mandatory age or the age specified in the Adoption Agreement.
Notwithstanding the vesting schedule elected by the Employer in the
Adoption Agreement, an Employee's right to his or her account balance
shall be nonforfeitable upon the attainment of Normal Retirement Age.
1.49 NORMAL RETIREMENT DATE. The term Normal Retirement Date means the first
day of the month coinciding with or next following the date a
Participant attains his Normal Retirement Age. The Normal Retirement
Date for readopting Small Case Product Employers shall be the date
specified in the Adoption Agreement. If a Participant retires from the
Service of the Employer on this Normal Retirement Date, he shall receive
a distribution of the entire value of his Participant's Account, and any
Policies on his life, or the values thereof, as of his Normal Retirement
Date, subject to the Provisions of Article VIII and Article DC.
1.50 OWNER-EMPLOYEE. The term Owner-Employee means an individual who is a
sole proprietor, or who is a partner owning more than 10 percent of
either the capital or profits interest of the partnership.
1.51 PARTICIPANT. The term Participant means any Employee of the Employer,
who does participate under this Plan in accordance with its provisions
and shall include an Active Participant and an Inactive Participant.
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1.52 PARTICIPANT'S ACCOUNT. The term Participant's Account means the sum of
the following sub-accounts maintained on behalf of each Participant.
(a) Nonelective Contributions, if any, and earnings thereon;
(b) Matching Contributions, if any, and earnings thereon-,
(c) Elective Deferral Contributions, if any, and earnings thereon;
(d) Voluntary Employee Contributions, if any, and earnings thereon;
(e) Qualified Nonelective Contributions, if any, and earnings thereon;
(f) Qualified Matching Contributions, if any, and earnings thereon;
(g) Rollover Contributions, if any, and earnings thereon;
(h) Required Employee Contributions, if any, and earnings thereon;
(i) IRP Contributions, if any, and earnings thereon.
A Participant's Account shall be invested in accordance with rules
established by the Plan Administrator that shall be applied in a
consistent and nondiscriminatory manner.
1.53 PERSON. The term Person means any natural person, partnership,
corporation, trust or estate.
1.54 PLAN. The term Plan means this Connecticut General Life Insurance
Company Defined Contribution Plan and the Adoption Agreement as adopted
by the Employer and as both may be amended from time to time.
1.55 PLAN ADMINISTRATOR. The term Plan Administrator means the Person or
Persons designated by the Employer in its Adoption Agreement and any
successor(s) thereto. If more than one Person shall be designated, the
committee thus formed shall be known as the Administrative Committee and
all references in the Plan to the Plan Administrator shall be deemed to
apply to the Administrative Committee. The Plan Administrator shall
signify in writing his acceptance of his responsibility as a Named
Fiduciary.
1.56 PLAN YEAR. The term Plan Year means the 12-consecutive month period
specified by the Employer in the Adoption Agreement.
If the Plan Year shifts to a new 12-consecutive month period, such new
Plan Year shall begin before the end of the old Plan Year. For purposes
of eligibility and vesting, each Participant shall receive credited
service in each year for the overlap period.
1.57 QUALIFIED MATCHING CONTRIBUTIONS. The term Qualified Matching
Contributions shall mean Matching Contributions which are subject to the
distribution and nonforfeitability requirements under section 401(k) of
the Code when made.
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1.58 QUALIFIED NONELECTIVE CONTRIBUTIONS. The term Qualified Nonelective
Contributions shall mean Nonelective Contributions made by the Employer
and allocated to Participants' accounts that the Participants may not
elect to receive in cash until distributed from the Plan; that are
nonforfeitable when made; and that are distributable only in accordance
with the distribution provisions that are applicable to Elective
Deferral Contributions and Qualified Matching Contributions.
1.59 REQUIRED EMPLOYEE CONTRIBUTIONS. The term Required Contributions means
Employee post-tax contributions that the Employer requires as either a
condition of participation, or of receiving an Employer contribution.
1.60 SELF-EMPLOYED INDIVIDUAL. The term Self-Employed Individual means an
individual who has earned income for the taxable year from the trade or
business for which the Plan is established; also, an individual who
would have earned income but for the fact that the trade or business had
no net profits for the taxable year.
1.61 SERIOUS FINANCIAL HARDSHIP. The term Serious Financial Hardship means an
immediate and heavy financial need of the Participant where such
Participant lacks the available resources to meet the hardship. The Plan
Administrator shall make a determination of whether a Serious Financial
Hardship exists.
1.62 SOCIAL SECURITY INTEGRATION LEVEL. The term Social Security Integration
Level means the amount specified by the Employer in the Adoption
Agreement. If the Taxable Wage Base is amended, the Social Security
Integration Level will be deemed to have been amended.
1.63 TAXABLE WAGE BASE. The term Taxable Wage Base means the contribution and
benefit base in effect under section 230 of the Social Security Act of
the beginning of the Plan Year.
1.64 TERMINATION OF EMPLOYMENT. The term Termination of Employment means a
severance of the Employer-Employee relationship which occurs prior to a
Participant's Normal Retirement Age for any reason other than Early
Retirement, Disability, or death.
1.65 TRUST. The term Trust means the trust agreement if the Employer
specifies in the Adoption Agreement that the Plan is Trusteed. The trust
agreement is entered into by the Employer, the Administrator and the
Trustee by completing and signing the Adoption Agreement, which trust
agreement forms a part of, and implements the provisions of the Plan as
it applies to the Employer. If the Employer specifies in the Adoption
Agreement that the Plan is Non- Trusteed then the terms and provisions
of this Plan relating to the Trust shall be of no force and effect.
1.66 TRUSTEE. The term Trustee means the trustee(s) designated by the
Employer in its Adoption Agreement, if applicable, and any successor(s)
thereto.
1.67 VARIABLE ANNUITY. The term Variable Annuity means an annuity providing a
series of payments that increase or decrease to reflect changes in
investment performance of the underlying portfolio.
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1.68 VESTED INTEREST. The term Vested Interest on any date means the
nonforfeitable right to an immediate or deferred benefit in the amount
which is equal to the sum of (a), (b) and (c) below:
(a) The value on that date of that portion of the Participant's Account
and of any Life Insurance Policies on his life that is attributable
to and derived from Employee Contributions, if any;
(b) The value on that date of the portion of the Participant's Account
attributed to Elective Deferral Contributions, if any; Qualified
Nonelective Contributions, if any; and Qualified Matching
Contributions, if any; and
(c) The value on that date of that portion of the Participant's Account
and of any Life Insurance Policies on his life that is attributable
to and derived from contributions made by the Employer (and
Forfeitures, if any) multiplied by his Vesting Percentage
determined on the date applicable.
1.69 VESTING PERCENTAGE. The term Vesting Percentage means the Participant's
nonforfeitable interest in Matching Contributions or Nonelective
Contributions credited to his Participant's Account plus the earnings
thereon computed as of the date of determining such percentage because
of the occurrence of some event in accordance with one of the schedules
listed below, based on Years of Service with the Employer, as specified
by the Employer in its Adoption Agreement:
(a) 100% full and immediate;
(b) 100% after 3 Years of Service;
(c) 20% per Year of Service, 100% at 5 Years of Service;
(d) 20% after 3 Years of Service, 20% per Year of Service thereafter,
100% at 7 Years of Service;
(e) 20% after 2 Years of Service, 20% per Year of Service thereafter,
100% at 6 Years of Service;
(f) 100% after 5 Years of Service;
(g) 25% after 1 Year of Service, 100% after 4 Years of Service;
(h) Other.
1.70 VOLUNTARY EMPLOYEE CONTRIBUTIONS. The term Voluntary Employee
Contributions means post-tax contributions made voluntarily by an
Employee and any contributions formerly made as Participant VIP
Contributions.
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ARTICLE II
SERVICE
2.1 SERVICE. The term Service means active employment with the Employer as
an Employee.
2.2 ABSENCE FROM EMPLOYMENT. Absence from employment on account of a leave
of absence authorized by the Employer pursuant to the Employer's
established leave policy will be counted as employment with the Employer
provided that such leave of absence is of not more than two years'
duration. Absence from employment on account of active duty with the
Armed Forces of the United States will be counted as employment with the
Employer. If the Employee does not return to active employment with the
Employer, his Service will be deemed to have ceased on the date the
Administrator receives notice that such Employer's leave policy shall be
applied in a uniform and nondiscriminatory manner to all Participants
under similar circumstances.
2.3 HOUR OF SERVICE. The term Hour of Service means a period of Service
during which an Employee shall be credited with one Hour of Service as
described in (a), (b), and (c) below:
(a) Each hour for which an Employee is directly or indirectly paid, or
entitled to payment, by the Employer for the performance of duties.
These hours shall be credited to the Employee for the computation
period or periods in which the duties were 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 or 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 or a single computation period (whether or not
the period occurs in a single computation period). Hours under this
paragraph will be calculated and credited pursuant to section
2530.200b-2 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, has been either awarded or agreed to by the Employer. The
same Hours of Service will not be credited under subsection (a) or
subsection (b), as the case may be, and under this subsection (c).
These hours shall be credited to the Employee for the computation
period or periods to which the award or agreement pertains rather
than the computation period in which the award, agreement or
payment is made; and Hours of Service will be credited for
employment with other members of an affiliated service group (under
Code section 414(m)), a controlled group of corporations (under
Code section 414(b)), or a group of trades or businesses under
common control (under section 414(c) of the Code), of which the
adopting Employer is a member, and any other entity required to be
aggregated with the Employer pursuant to Code section 414(o).
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Hours of Service will also be credited for any individual considered an
Employee for purposes of this Plan under section 414(n) or section
414(o) of the Code.
Solely for purposes of determining whether a Break-in-Service, as
defined in Section 2.4, for participation and vesting purposes has
occurred in a computation period, an individual who is absent from work
for maternity or paternity reasons shall receive credit for the Hours of
Service which would otherwise have been credited to such individual but
for such absence, or in any case in which such hours cannot be
determined, 8 Hours of Service per day of such absence. For purposes of
this paragraph, an absence from work for maternity or paternity reasons
means an absence (1) by reason of the pregnancy of the individual, (2)
by reason of a birth of a child of the individual, (3) by reason of the
placement of a child with the individual in connection with the adoption
of such child by such individual, or (4) for purposes of caring for such
child for a period beginning immediately following such birth or
placement. The Hours of Service credited under this paragraph shall be
credited (1) in the computation period in which the absence begins if
the crediting is necessary to prevent a Break-in-Service in that period,
or (2) in all other cases, in the following computation period.
Service shall be determined on the basis of the method selected in the
Adoption Agreement.
2.4 1-YEAR BREAK-IN-SERVICE. Except as provided in Section 2.6, the term
1-year Break-in-Service means any Plan Year during which an Employee
fails to complete more than 500 Hours of Service.
2.5 YEAR(S) OF SERVICE. The term Year(s) of Service means a 12-consecutive
month period during which an Employee has completed at least 1,000 Hours
of Service.
(a) Eligibility Computation Period. For purposes of determining Years
of Service and Breaks-in-Service for eligibility, the 12-
consecutive month period shall begin with the date on which the
Employee first performed an Hour of Service for the Employer and,
where additional periods are necessary, succeeding anniversaries of
his employment commencement date. The employment commencement date
is the date on which the Employee first performs an Hour of Service
for the Employer maintaining the Plan.
(b) Vesting Computation Period.In computing Years of Service and
Breaks-in-Service for vesting, the 12- consecutive month period
shall be the Plan Year. However, active participation as of the
last day of the Plan Year is not required in order for a
Participant to be credited with a Year of Service for vesting
purposes.
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(c) Contribution Computation Period. If the Employer specifies an
annual Contribution Period in its Adoption Agreement, for the
purpose of determining a Participant's eligibility to receive a
Contribution, the 12- consecutive month period shall be any Plan
Year during which the Active Participant is credited with at least
1,000 Hours of Service. However, when an Employee first becomes a
Participant or resumes active participation in the Plan following a
1-Year Break-in-Service on a date other than the first day of the
Plan Year, all Hours of Service credited to the Participant during
that Plan Year, including those Hours credited prior to the date
the Employee enrolls (or reenrolls) as an Active Participant in the
Plan shall be counted. Furthermore, the Employer may require in
its Adoption Agreement that a Participant be a Participant as of
the last day of the Plan Year in order to be eligible to receive a
contribution for a Plan Year.
(d) If the Employer permits Early Retirement by Participants in its
Adoption Agreement, for the purpose of determining Early Retirement
the 12-consecutive month period shall be the Plan Year. However,
active participation as of the last day of the Plan Year is not
required in order for a Participant to be credited with a Year of
Service.
Service with a predecessor organization of the Employer shall be treated
as Service with the Employer for the purposes of subsections (a), (b)
and (d) above in any case in which the Employer maintains the Plan of
such predecessor organization.
2.6 ELAPSED TIME ELIGIBILITY. If the Employer has selected an eligibility
requirement in the Adoption Agreement that is or includes a fractional
Year(s) of Service requirement, the provisions of this Section shall
apply.
(a) For purposes of determining an Employee's initial or continued
eligibility to participate in the Plan, an Employee will receive
credit for the aggregate of all time period(s) commencing with the
Employee's first day of employment or reemployment and ending on
the date a Break-in-Service (as defined in this Section) begins.
The first day of employment or reemployment is the first day the
Employee performs an Hour of Service. An Employee will also receive
credit for any Period of Severance of less than 12-consecutive
months. Fractional periods of a year will be expressed in terms of
days.
(b) For purposes of this Section, Hour of Service shall mean each hour
for which an Employee is paid or entitled to payment for the
performance of duties for the Employer.
(c) For purposes of this Section, a Break-in-Service is a Period of
Severance of at least 12-consecutive months.
(d) A Period of Severance is a continuous period of time during which
the Employee is not employed by the Employer. Such period begins on
the date the Employee retires, quits or is discharged, or if
earlier, the 12-month anniversary of the date on which the Employee
was otherwise first absent from Service.
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(e) In the case of an individual who is absent from work for maternity
or paternity reasons, the 12-consecutive month period beginning on
the first anniversary of the first day 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 (1) by reason of the pregnancy of the individual, (2) by
reason of the birth of a child of the individual, (3) by reason of
the placement of a child with the individual in connection with the
adoption of such child by such individual, or (4) for purposes of
caring for such child for a period beginning immediately following
such birth or placement.
(f) If the Employer is a member of an affiliated service group (under
Code section 414(m)), a controlled group of corporations (under
Code section 414(b)), a group of trades or businesses under common
control (under Code section 414(c)) or any other entity required to
be aggregated with the Employer pursuant to Code section 414(o),
Service will be credited for any employment for any period of time
for any other member of such group. Service will also be credited
for any individual required under Code section 414(n) or Code
section 414(o) to be considered an Employee of any Employer
aggregated under Code sections 414(b), (c), or (m) of such group.
Service will also be credited for any individual required under
Code section 414(n) or Code section 414(o) to be considered an
Employee of any Employer aggregated under Code sections 414(b),
(c), or (m).
2.7 DETERMINING VESTING PERCENTAGE. Vesting credit shall be given for each
Year of Service except those periods specifically excluded in the
Adoption Agreement.
If a Participant completes less than 1,000 Hours of Service during a
Plan Year while remaining in the Service of the Employer, his Vesting
Percentage shall not be increased for such Plan Year. However, at such
time as the Participant again completes at least 1,000 Hours of Service
in any subsequent Plan Year, his Vesting Percentage shall then take into
account all Years of Service with the Employer except those specifically
excluded in the Adoption Agreement.
If an individual who ceases to be an Employee and is subsequently
rehired as an Employee enrolls (or reenrolls) in the Plan, upon his
participation (or reparticipation) his Vesting Percentage shall then
take into account all Years of Service except those specifically
excluded in the Adoption Agreement.
In the case of a Participant who has 5 consecutive 1-Year
Breaks-in-Service, all Years of Service after such Breaks-in-Service
will be disregarded for the purpose of vesting the Employer-derived
account balance that accrued before such breaks. In the case of a
Participant who has 5 consecutive 1-Year Breaks-in-Service, both
pre-break and post-break service will count for the purpose of vesting
the Employer-derived account balance that accrues after such
Breaks-in-Service. In the case of a Participant who does not have
5-consecutive 1-Year Breaks- in-Service, both the pre-break and
post-break Service will count in vesting both the pre-break and
post-break Employer-derived account balance.
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Separate accounts will be maintained for the Participant's pre-break and
post-break Employer-derived account balance. Both accounts will share in
the earnings and losses of the fund. For purposes of this
subsection,.... Employer-derived account balance" shall mean that
portion of a Participant's Account attributable to (1) Matching
Contributions; (2) Nonelective contributions; (3) Qualified Nonelective
Contributions; or (4) Qualified Matching Contributions.
2.8 EXCLUDED YEARS OF SERVICE. In determining the Vesting Percentage of an
Employee, all Years of Service with the Employer(s) maintaining the Plan
shall be taken into account, except that the following periods may be
excluded, as specified by the Employer in its Adoption Agreement:
(a) Years of Service prior to the time a Participant attained age 18;
(b) Years of Service during which the Employer did not maintain the
Plan or a predecessor plan;
(c) Years of Service during a period for which the Employee made no
Required Contributions;
For the purposes of this Section a predecessor plan shall mean a plan of
the Employer that was terminated within five years preceding or
following the Effective Date of this Plan.
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ARTICLE III
ELIGIBILITY, ENROLLMENT AND PARTICIPATION
3.1 ELIGIBILITY. Each Employee shall be eligible to become a Participant as
of the day he meets the following requirements, if any, specified by the
Employer in its Adoption Agreement, relating to:
(a) Required service;
(b) Minimum attained age;
(c) job class requirements;
In addition to the eligibility conditions stated above, the Employer may
specify in the Adoption Agreement certain groups of Employees who are
not eligible to participate in the Plan.
Notwithstanding the foregoing, if the Employer's Plan as set forth
herein, replaces or amends a preceding plan, then those Employees
participating under the Plan as written prior to such replacement or
amendment, shall be eligible to be Participants hereunder without regard
to length of Service, or minimum attained age otherwise required herein.
3.2 ENROLLMENT A-ND PARTICIPATION. Each eligible Employee may enroll as of
his Entry Date, by completing and delivering to the Plan Administrator
an enrollment form, and if applicable, a payroll deduction
authorization.
3.3 REEMPLOYED PARTICIPANT. In the case of an individual who ceases to be an
Employee and is subsequently rehired as an Employee, the following
provisions shall apply in determining eligibility to again participate
in the Plan:
(a) If the Employee had met the eligibility requirements as specified
in Section 3.1, such Employee will become an Active Participant in
the Plan in accordance with Section 3.2 as of the date he is
reemployed as an Employee.
(b) If the Employee had not formerly met the eligibility requirements
specified in Section 3.1, such Employee will become an Active
Participant in the Plan after meeting the requirements of Section
3.1 in accordance with Section 3.2.
3.4 ELIGIBLE CLASS. If a Participant becomes ineligible to participate
because he is no longer a member of an eligible class of Employees, such
Employee shall participate immediately upon his return to an eligible
class of Employees. If such Participant incurs a Break-in-Service,
eligibility will be determined under the Break-in- Service rules of the
Plan.
If an Employee who is not a member of the eligible class of Employees
becomes a member of the eligible class, such Employee shall participate
immediately if such Employee has satisfied the minimum age and Service
requirements and would have previously become a Participant had he been
in the eligible class. If such Participant incurs a Break-in-Service,
eligibility will be determined under the Break-in-Service rules of the
Plan.
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3.5 WAIVER OF PARTICIPATION. Notwithstanding any provision of the Plan to
the contrary, any Employee in accordance with the rules of the Plan may
decline to become a Participant or cease to be an Active Participant by
filing a written waiver of participation with the Administrator in the
manner it prescribes. Such waiver must be filed prior to the date such
Employee is eligible to become a Participant, or in the case of an
Active Participant, in the last month of the Plan Year immediately
preceding the Plan Year for which he wishes to cease being an Active
Participant.
Any Employee who files such a waiver shall not become a Participant, or
if an Active Participant, shall elect to cease to be such as of the
first day of the succeeding Plan Year; and such Employee shall not
receive any additional Compensation or other sums by reason of his
waiver of participation.
Any such waiver may be rescinded by an Employee effective on the first
day of the first Plan Year following one or more Plan Years commencing
after the filing of such waiver in which he was not an Active
Participant, in which event he shall become a Participant, or again
become an Active Participant, as the case may be, effective as of such
date.
No Employee who is eligible to participate in a standardized plan may
waive participation or voluntarily reduce his/her Compensation for
purposes of this Plan.
3.6 OWNER-EMPLOYEES. If this Plan provides contributions or benefits for one
or more Owner-Employees who control both the business for which this
Plan is established and one or more other trades or businesses, this
Plan and the plan established for 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 this and all other trades or businesses. If the
plan provides contributions or benefits 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 this
Plan.
If an individual is covered as an Owner-Employee under the plans of two
or more trades or businesses which are not controlled and the individual
controls a trade or business, then the contributions or benefits of the
employees under the plan of the trades or businesses which are
controlled must be as favorable as those provided for him under the most
favorable plan of the trade or business which is not controlled.
For purposes of the preceding paragraphs, 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:
(1) own the entire interest in an unincorporated trade or business, or
(2) in the case of a partnership, own more than 50 percent of either
the capital interest or the profits interest in the partnership.
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For purposes of the preceding sentence, 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.
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ARTICLE IV
CONTRIBUTIONS AND ALLOCATIONS
4.1 MONEY PURCHASE PENSION PLAN.
(a) Contributions - Employer. The Employer shall contribute an amount,
as specified in its Adoption Agreement, equal to a fixed percentage
of each Participant's Compensation or a flat dollar amount in
accordance with (1), (2) or (3) below:
(1) Formula A: Not Integrated with Social Security. An amount equal
to a percentage from 1% to 25% of the Compensation of each
Participant, subject to the Limitations on Allocations in
accordance with Article V.
(2) Formula B: Flat Dollar Amount. An amount, as elected by the
Employer in the Adoption Agreement. Formula B may not be
elected by a standardized plan.
(3) Formula C: Integrated with Social Security.
Base Contribution: An amount equal to a percentage (as
specified in the Adoption Agreement) of Compensation of each
Participant up to the Social Security Integration Level;
Excess Contribution: In addition, an amount equal to a
percentage (as specified in the Adoption Agreement) of the
Participant's Compensation which is in excess of the Social
Security Integration Level, subject to the Limitations on
Allocations in accordance with Article V. This Excess
Contribution percentage shall not exceed the lesser of:
(A) twice the Base Contribution or
(B) the Base Contribution plus the greater of:
(i) old age insurance portion of the Old Age Survivor
Disability (OASDI) tax rate; or
(ii) 5.7%.
If the Employer has elected in the Adoption Agreement to
use a Social Security Integration Level that in any Plan
Year is the greater of $10,000 or 20% but less than 100%
of the Taxable Wage Base, then the 5.7% limitation
specified in 4.1(a)(3)(B)(ii) shall be adjusted in
accordance with the following table:
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<TABLE>
<CAPTION>
---------------------------------------------------------------------------------
IF THE SOCIAL SECURITY INTEGRATION LEVEL
---------------------------------------------------------------------
is more but not more
than THAN
---------------------------------------------------------------------
<S> <C> <C>
the greater of $ 10,000 or 80% of the Taxable Wage 4.3%
20% of the Taxable Wage Base
Base
80% of the Taxable Wage 100% of the Taxable 5.4%
Base Wage Base
---------------------------------------------------------------------------------
</TABLE>
(b) Contributions - Participant.
The Plan Administrator will not accept Required Employee
Contributions or Voluntary Employee Contributions which are made
for Plan Years beginning after the Plan Year in which this Plan is
being adopted by the Employer. Required Employee Contributions and
Voluntary Employee Contributions for Plan Years beginning after
December 31, 1986 will be limited so as to meet the
nondiscrimination test of section 401(m) of the Code as provided in
Section 4.5(c).
(c) Contribution - Timing.
Contributions made on other than an annual basis shall be paid to
the Trust or Insurance Company, as applicable, not less frequently
than monthly or every four weeks. Contributions made on an annual
basis shall be paid to the Trust or the Insurance Company, as
applicable, at the end of the Plan Year, or as soon as possible on
or after the last day of such Plan Year, but in any event not later
than the date prescribed by law for filing the Employer's income
tax return, including any extension thereof. To the extent that
contributions are used to purchase Life Insurance Policies, then
such contributions for any Plan year maybe paid to the Trust when
premiums for such Policies are due during the Plan Year.
(d) Contribution - Allocation.
Employer contributions shall be allocated to the accounts of
Participants in accordance with the allocation requirements as
specified by the Employer in the Adoption Agreement. If the
Employer has adopted a Standardized Adoption Agreement, the
allocation of any nonannual contribution made by the Employer shall
be made for each Participant who is a Participant on any day of the
Contribution Period regardless of Hours of Service.
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(e) Forfeitures.
Forfeitures will be used in the manner elected in the Adoption
Agreement as follows:
(1) used to reduce Employer contributions, pay Plan expenses, or
(2) allocated in the same manner elected in the Adoption Agreement
for the allocation of Employer contributions.
(f) Expenses.
The Employer may contribute to the Plan the amount necessary to pay
any applicable expense charges and administration charges. In lieu
of the Employer contributing the amount necessary to pay such
charges, these expenses may be paid from Plan ASSETS.
4.2 PROFIT SHARING/THRIFT PLAN WITH 401(K) FEATURE
(a) Contributions - Employer.
For each Plan Year, as specified in the Adoption Agreement, the
Employer shall make one or more of the following contributions.
(1) Elective Deferral Contributions.
(2) Matching Contributions.
(3) Additional Matching Contributions.
(4) Nonelective Contributions.
(b) Contributions - Participant.
For each Plan Year, as specified in the Adoption Agreement, each
Participant may elect to make Required Employee Contributions
and/or Voluntary Employee Contributions.
(c) Fail-Safe Contribution.
The Employer reserves the right to make a discretionary Nonelective
Contribution to the Plan for any Plan Year, if the Employer
determines that such a contribution is necessary to ensure the
Actual Deferral Percentage Test or the Actual Contribution
Percentage Test will be satisfied for that Plan Year. Such amount
shall be designated by the Employer at the time of contribution as
a Qualified Nonelective Contribution and shall be known as a
Fail-Safe Contribution.
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The Fail-Safe Contribution shall be made on behalf of all eligible
non-Highly Compensated Employees who are Participants and who are
considered under the Actual Deferral Percentage Test or, if
applicable, the Actual Contribution Percentage Test and shall be
allocated to the Participant's Account of each such Participant in
an amount equal to a fixed percentage of such Participant's
Compensation. The fixed percentage shall be equal to the minimum
fixed percentage necessary to be contributed by the Employer on
behalf of each eligible non-Highly Compensated Employee who is a
Participant so that the Actual Deferral Percentage Test or, if
applicable, the Actual Contribution Percentage Test is satisfied.
The Fail-Safe Contribution shall be made on behalf of all eligible
non-Highly Compensated Employees who are Participants and who are
considered under the Actual Deferral Percentage Test or, if
applicable, the Actual Contribution Percentage Test and shall be
allocated to the Participant's Account of each such Participant in
an amount equal to a fixed percentage of such Participant's
Compensation. The fixed percentage shall be equal to the minimum
fixed percentage necessary to be contributed by the Employer on
behalf of each eligible non-Highly Compensated Employee who is a
Participant so that the Actual Deferral Percentage Test or, if
applicable, the Actual Contribution Percentage Test is satisfied.
(d) Contribution - Changes.
For each Plan Year, a Participant may change the amount of his
Required Employee Contributions, Voluntary Employee Contributions
and/or Elective Deferral Contributions as often as the Plan
Administrator allows (on a consistent and nondiscriminatory basis),
on certain dates prescribed by the Plan Administrator.
(e) Contributions - Timing.
(1) Elective Deferral Contributions shall be paid by the Employer
to the Trust or the Insurance Company, not less frequently than
monthly or four weekly, but never later than 90 days following
the date of deferral.
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<PAGE> 59
(2) Matching Contributions made on other than an annual basis shall
be paid to the Trust or Insurance Company, as applicable, not
less frequently than monthly or every four weeks. Matching
Contributions and/or Additional Matching Contributions made on
an annual basis shall be paid to the Trust or the Insurance
Company, as applicable, at the end of the Plan Year, or as soon
as possible on or after the last day of such Plan Year, but in
any event not later than the date prescribed by law for filing
the Employer's income tax return, including any extension
thereof. To the extent that Matching Contributions are used to
purchase Life Insurance Policies, then such contributions for
any Plan year may be paid to the Trust when premiums for such
Policies are due during the Plan Year.
(3) Nonelective Contributions made on other than an annual basis
shall be paid to the Trust or Insurance Company, as applicable,
not less frequently than monthly or every four weeks.
Nonelective Contributions made on an annual basis shall be paid
to the Trust or the Insurance Company, as applicable, at the
end of the Plan Year, or as soon as possible on or after the
last day of such Plan Year, but in any event not later than the
date prescribed by law for filing the Employer's income tax
return, including any extension thereof. To the extent that
Nonelective Contributions are used to purchase Life Insurance
Policies, then such contributions for any Plan year may be paid
to the Trust when premiums for such Policies are due during the
Plan Year.
(4) Employee Contributions shall be transferred by the Employer to
the Trust or the Insurance Company, not less frequently than
monthly or four weekly, but never later than 90 days following
the date such contributions are made by the Employee.
(5) The Fail-Safe Contribution for any Plan Year as determined
above shall be paid to the Insurance Company at the end of the
Plan Year, or as soon as possible on or after the last day of
such Plan Year, but in no event later than the date which is
prescribed by law for filing the Employer's income tax return,
including any extensions thereof.
(f) Contributions - Allocations.
The allocation of Nonelective Contributions shall be made in
accordance with (1), (2), (3) or (4) below, as specified by the
Employer in the Adoption Agreement.
(1) Formula A: Compensation Ratio - Not Integrated with Social
Security.
The allocation to each Participant shall be made in the
proportion that the Compensation paid to each Participant
eligible to receive an allocation bears to the Compensation
paid to all Participants eligible to receive an allocation; or
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(2) Formula B: Flat Dollar Amount.
The allocation to each Participant shall be a flat dollar
amount as elected by the Employer in the Adoption Agreement.
Formula B may not be elected by a standardized plan.
(3) Formula C: Integrated with Social Security - Step Rate Method.
Base Contribution: An amount equal to a percentage (as
specified in the Adoption Agreement) of Compensation of each
Participant up to the Social Security Integration Level; Excess
Contribution: In addition, an amount equal to a percentage (as
specified in the Adoption Agreement) of the Participant's
Compensation which is in excess of the Social Security
Integration Level, subject to the Limitations on Allocations in
accordance with Article V. This Excess Contribution percentage
shall not exceed the lesser of:
(A) twice the Base Contribution or
(B) the Base Contribution plus the greater of:
(i) the old age insurance portion of the Old Age
Survivor Disability (OASDI) tax rate; or
(ii) 5.7%.
If the Employer has elected in the Adoption Agreement to
use a Social Security Integration Level that in any Plan
Year is the greater of $10,000 or 20% but less than 100%
of the Taxable Wage Base, then the 5.7% limitation
specified in 4.2(f)(3)(B)(ii) shall be adjusted in
accordance with the following table:
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------
IF THE SOCIAL SECURITY INTEGRATION LEVEL
---------------------------------------------------------------------
is more but not more
than THAN
---------------------------------------------------------------------
<S> <C> <C>
the greater of $10,000 or 80% of the Taxable Wage 4.3%
20% of the Taxable Wage Base
Base
80% of the Taxable Wage 100% of the Taxable 5.4%
Base Wage Base
---------------------------------------------------------------------------------
</TABLE>
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<PAGE> 61
(4) Formula C: Integrated with Social Security - Maximum Disparity
Method.
Subject to the Limitations on Allocations specified in Article
V, for each Plan Year the contributions shall be allocated in
accordance with the following:
(A) An amount equal to 5.7% of the sum of each Participant's
total Compensation plus Compensation that is in excess of
the Social Security Integration Level shall be allocated
to each Participant's Account. If the Employer does not
contribute such amount for all Participants, an amount
shall be allocated to each Participant's Account equal to
the same proportion that each Participant's total
Compensation plus Compensation that is in excess of the
Social Security Integration Level bears to the total
Compensation plus Compensation in excess of the Social
Security Integration Level of all Participants in the
Plan.
If the Employer has elected in the Adoption Agreement to
use a Social Security Integration Level that in any Plan
Year is the greater of $10,000 or 20% but less than 100%
of the Taxable Wage Base, then the 5.7% limitation
specified in this Section shall be adjusted in accordance
with the following table:
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------
IF THE SOCIAL SECURITY INTEGRATION LEVEL
---------------------------------------------------------------------
is more but not more
than Than
---------------------------------------------------------------------
<S> <C> <C>
the greater of $10,000 or 80% of the Taxable Wage 4.3%
20% of the Taxable Wage Base
Base
80% of the Taxable Wage 100% of the Taxable 5.4%
Base Wage Base
---------------------------------------------------------------------------------
</TABLE>
(B) The balance of the contribution made by the Employer (if
any), shall be allocated to the Participant's Account in
the proportion that each Participant's Compensation bears
to the total Compensation of all Participants.
(g) Allocation Requirements.
Employer contributions shall be allocated to the accounts of
Participants in accordance with the allocation requirement as
specified by the Employer in its Adoption Agreement. If the
Employer has adopted a Standardized Adoption Agreement, the
allocation of any nonannual contribution made by the Employer shall
be made to each Participant who is a Participant on any day of the
Contribution Period regardless of Hours of Service.
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<PAGE> 62
(h) Forfeitures.
Forfeitures will be used in the manner elected in the Adoption
Agreement as follows:
(1) Forfeitures will be used to reduce Employer contributions, pay
Plan expenses, or
(2) Forfeitures will be allocated in accordance with the allocation
formula in the Plan.
(i) Expenses.
The Employer may contribute to the Plan the amount necessary to pay
any applicable expense charges and administration charges. In lieu
of the Employer contributing the amount necessary to pay such
charges, these expenses may be paid from Plan assets.
(j) Special Rules - Elective Deferral Contributions.
(1) Each Participant may elect to defer his Compensation in an
amount specified in the Adoption Agreement, subject to the
limitations of this Section. A deferral election (or
modification of an earlier election) may not be made with
respect to Compensation which is currently available on or
before the date the Participant executed such election, or if
later, the latest of the date the Employer adopts this cash or
deferred arrangement, or the date such arrangement first
becomes effective. Any elections made pursuant to this Section
shall become effective as soon as is administratively feasible.
(2) If elected by the Employer in the Adoption Agreement, each
Participant may elect to defer and have allocated for a Plan
Year all or a portion of any cash bonus attributable to
services performed by the Participant for the Employer during
such Plan Year and which would have been received by the
Participant on or before two and one-half months following the
end of the Plan Year but for the deferral. A deferral election
may not be made with respect to cash bonuses which are
currently available on or before the date the Participant
executed such election. Notwithstanding the foregoing, cash
bonuses attributable to services performed by the Participant
during a Plan Year but which are to be paid to the Participant
later than two and one-half months after the close of such Plan
Year will be subject to whatever deferral election is in effect
at the time such cash bonus would have otherwise been received.
(3) Elective Deferral Contributions will be allocated to the
Participant's Account and shall be one hundred percent (100%)
vested and non-forfeitable at all times.
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<PAGE> 63
(4) No Participant shall be permitted to have Elective Deferral
Contributions made under this plan, or any other qualified plan
maintained by the Employer, during any taxable year, in excess
of the dollar limitation contained in section 402(g) of the
Code in effect at the beginning of such taxable year.
(5) Elective Deferral Contributions which are not in excess of the
limits described in subsection (4) above, shall be subject to
the limitations on allocations in accordance with Article V.
Elective Deferral Contributions which are in excess of the
limits described in (4) above shall also be subject to the
Article V limitations.
(6) An Employee's eligibility to make Elective Deferral
Contributions under a CODA may not be conditioned upon the
completion of more than one (1) Year-of-Service or the
attainment of more than age twenty-one (21).
(7) A Participant may modify the amount of Elective Deferral
Contributions such Participant makes to the Plan as often as
the Administrator allows, as specified in the Adoption
Agreement, but in no event not less frequently than once per
calendar year. Such modification may be made by filing a
written notice with the Administrator within the time period
prescribed by the Administrator.
4.3 PROFIT SHARING PLAN. (Small Case Product)
(a) Contributions - Employer.
For each Plan Year, as specified in the Adoption Agreement, the
Employer shall make Nonelective Contributions.
(b) Contributions - Participant.
The Plan Administrator will not accept Voluntary Employee
Contributions which are made for Plan Years beginning after the
Plan Year in which this Plan is being adopted by the Employer.
Voluntary Employee Contributions for Plan Years beginning after
December 31, 1986 will be limited so as to meet the
nondiscrimination test of section 401(m) of the Code.
(c) Contributions - Timing.
Contributions shall be paid to the Trust or the Insurance Company,
as applicable, at the end of the Plan Year, or as soon as possible
on or after the last day of such Plan Year, but in any event not
later than the date prescribed by law for filing the Employer's
income tax return, including any extension thereof. To the extent
that Nonelective Contributions are used to purchase Life Insurance
Policies, then such contributions for any Plan year may be paid to
the Trust when premiums for such Policies are due during the Plan
Year.
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<PAGE> 64
(d) Contributions - Allocations.
The allocation of Nonelective Contributions shall be made in
accordance with (1) or (2) below, as specified by the Employer in
the Adoption Agreement.
(1) Formula A: Compensation Ratio. The allocation to each
Participant shall be made in the proportion that the
Compensation paid to each Participant eligible to receive an
allocation bears to the Compensation paid to all Participants
eligible to receive an allocation; or
(2) Formula B: Flat Dollar Amount. The allocation to each
Participant shall be a flat dollar amount as elected by the
Employer in the Adoption Agreement. Formula B may not be
elected by a standardized plan.
(e) Allocation Requirements.
Employer contributions shall be allocated to the accounts of
Participants in accordance with the allocation requirement as
specified by the Employer in its Adoption Agreement.
(f) Forfeitures.
Forfeitures will be used in the manner elected in the Adoption
Agreement as follows:
(1) used to reduce Employer contributions, pay Plan expenses, or
(2) allocated in the same manner elected in the Adoption Agreement
for the allocation of Employer contributions. If the Plan is
integrated, forfeitures must be allocated pursuant to the
integrated formula.
(g) Expenses.
The Employer may contribute to the Plan the amount necessary to pay
any applicable expense charges and administration charges. In lieu
of the Employer contributing the amount necessary to pay such
charges, these expenses may be paid from Plan assets.
4.4 THRIFT PLAN WITH 401(k) FEATURE. (SMALL CASE PRODUCT)
(a) Contributions - Employer.
For each Plan Year, as specified in the Adoption Agreement, and
subject to the terms of Article V, the Employer shall make one or
more of the following contributions:
(1) Elective Deferral Contributions
(2) Matching Contributions
(3) Nonelective Contributions
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<PAGE> 65
(b) Contributions - Participant.
For each Plan Year, as specified in the Adoption Agreement, each
Participant may elect to make Employee Contributions.
(c) Fail-Safe Contribution.
The Employer reserves the right to make a discretionary Nonelective
Contribution to the Plan for any Plan Year, if the Employer
determines that such a contribution is necessary to ensure the
Actual Deferral Percentage Test or the Actual Contribution
Percentage Test will be satisfied for that Plan Year. Such amount
shall be designated by the Employer at the time of contribution as
a Qualified Nonelective Contribution and shall be known as a
Fail-Safe Contribution.
The Fail-Safe Contribution shall be made on behalf of all eligible
non-Highly Compensated Employees who are Participants and who are
considered under the Actual Deferral Percentage Test or, if
applicable, the Actual Contribution Percentage Test and shall be
allocated to the Participant's Account of each such Participant in
an amount equal to a fixed percentage of such Participant's
Compensation. The fixed percentage shall be equal to the minimum
fixed percentage necessary to be contributed by the Employer on
behalf of each eligible non-Highly Compensated Employee who is a
Participant so that the Actual Deferral Percentage Test or, if
applicable, the Actual Contribution Percentage Test is satisfied.
(d) Contribution - Changes.
A Participant may change the amount of his Voluntary Employee
Contributions and/or Elective Deferral Contributions as often as
the Plan Administrator allows (on a consistent and
nondiscriminatory basis), on certain dates prescribed by the Plan
Administrator.
(e) Contributions - Timing.
(1) Elective Deferral Contributions shall be paid by the Employer
to the Trust or the. Insurance Company, not less frequently
than monthly or four weekly, but never later than 90 days
following the date of deferral.
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<PAGE> 66
(2) Matching Contributions made on other than an annual basis shall
be paid to the Trust or Insurance Company, as applicable, not
less frequently than monthly or every four weeks. Matching
Contributions made on an annual basis shall be paid to the
Trust or the Insurance Company, as applicable, at the end of
the Plan Year, or as soon as possible on or after the last day
of such Plan Year, but in any event not later than the date
prescribed by law for filing the Employer's income tax return,
including any extension thereof. To the extent that Matching
Contributions are used to purchase Life Insurance Policies,
then such contributions for any Plan year may be paid to the
Trust when premiums for such Policies are due during the Plan
Year.
(3) Nonelective Contributions made on other than an annual basis
shall be paid to the Trust or Insurance Company, as applicable,
not less frequently than monthly or every four weeks.
Nonelective Contributions made on an annual basis shall be paid
to the Trust or the Insurance Company, as applicable, at the
end of the Plan Year, or as soon as possible on or after the
last day of such Plan Year, but in any event not later than the
date prescribed by law for filing the Employer's income tax
return, including any extension thereof To the extent that
Nonelective Contributions are used to purchase Life Insurance
Policies, then such contributions for any Plan year may be paid
to the Trust when premiums for such Policies are due during the
Plan Year.
(4) Employee Contributions shall be transferred by the Employer to
the Trust or the Insurance Company, not less frequently than
monthly or four weekly, but never later than 90 days following
the date such contributions are made by the Employee.
(5) The Fail-Safe Contribution for any Plan Year as determined
above shall be paid to the Insurance Company at the end of the
Plan Year, or as soon as possible on or after the last day of
such Plan Year, but in no event later than the date which is
prescribed by law for filing the Employer's income tax return,
including any extensions thereof
(f) Contributions - Allocations.
The allocation of Nonelective Contributions shall be made in
accordance with (1) or (2) below, as specified by the Employer in
the Adoption Agreement.
(1) Formula A: Compensation Ratio. The allocation to each
Participant shall be made in the proportion that the
Compensation paid to each Participant eligible to receive an
allocation bears to the Compensation paid to all Participants
eligible to receive an allocation or
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<PAGE> 67
(2) Formula B: Flat Dollar Amount. The allocation to each
Participant shall be a flat dollar amount as elected by the
Employer in the Adoption Agreement. Formula B may not be
elected by a standardized plan.
(g) Allocation Requirements.
In the case of a Non-Standardized Plan, Employer contributions
shall be allocated to the accounts of Participants in accordance
with the allocation requirement as specified by the Employer in the
Adoption Agreement. In the case of a Standardized Plan, Employer
contributions shall be allocated to the accounts of Participants
who are Participants on any day of the Contribution Period
regardless of Hours of Service.
(h) Forfeitures.
Forfeitures will be used to reduce Employer contributions or pay
Plan expenses.
(i) Expenses.
The Employer may contribute to the Plan the amount necessary to pay
any applicable expense charges and administration charges. In lieu
of the Employer contributing the amount necessary to pay such
charges, these expenses may be paid from plan assets.
(j) Special Rules - Elective Deferral Contributions.
(1) Each Participant may elect to defer his Compensation in an
amount specified in the Adoption Agreement, subject to the
limitations of this Section. A deferral election (or
modification of an earlier election) may not be made with
respect to Compensation which is currently available on or
before the date the Participant executed such election, or if
later, the latest of the date the Employer adopts this cash or
deferred arrangement, or the date such arrangement first
becomes effective. Any elections made pursuant to this Section
shall become effective as soon as is administratively feasible.
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<PAGE> 68
(2) If elected by the Employer in the Adoption Agreement, each
Participant may elect to defer and have allocated for a Plan
Year all or a portion of any cash bonus attributable to
services performed by the Participant for the Employer during
such Plan Year and which would have been received by the
Participant on or before two and one-half months following the
end of the Plan Year but for the deferral. A deferral election
may not be made with respect to cash bonuses which are
currently available on or before the date the Participant
executed such election. Notwithstanding the foregoing, cash
bonuses attributable to services performed by the Participant
during a Plan Year but which are to be paid to the Participant
later than two and one-half months after the close of such Plan
Year will be subject to whatever deferral election is in effect
at the time such cash bonus would have otherwise been received.
(3) Elective Deferral Contributions will be allocated to the
Participant's Account and shall be one hundred percent (100%)
vested and non-forfeitable at all times.
(4) No Participant shall be permitted to have Elective Deferral
Contributions made under this plan, or any other qualified plan
maintained by the Employer, during any taxable year, in excess
of the dollar limitation contained in section 402(g) of the
Code in effect at the beginning of such taxable year.
(5) Elective Deferral Contributions which are not in excess of the
limits described in subsection (4) above, shall be subject to
the limitations on allocations in accordance with Article V.
Elective Deferral Contributions which are in excess of the
limits described in (4) above shall also be subject to the
Article V limitations.
(6) An Employee's eligibility to make Elective Deferral
Contributions under a CODA may not be conditioned upon the
completion of more than one (1) Year-of-Service or the
attainment of more than age twenty-one (21).
(7) A Participant may modify the amount of Elective Deferral
Contributions such Participant makes to the Plan as often as
the Administrator allows, as specified in the Adoption
Agreement, but in no event not less frequently than once per
calendar year. Such modification may be made by filing a
written notice with the Administrator within the time period
prescribed by the Administrator.
4.5 NONDISCRIMINATION TESTS.
If the Employer has elected in its Adoption Agreement to provide for
Elective Deferral Contributions, then paragraphs (a) and (b) shall
apply.
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<PAGE> 69
(a) Actual Deferral Percentage Test. The Actual Deferral Percentage for
Participants who are Highly Compensated Employees for each Plan
year and the ADP for Participants who are non-Highly Compensated
Employees for the same Plan Year must satisfy one of the following
tests:
(1) The ADP for Participants who are Highly Compensated Employees
for the Plan Year shall not exceed the ADP for Participants who
are non-Highly Compensated Employees for the same Plan year,
multiplied by 1.25; or
(2) The ADP for Participants who are Highly Compensated Employees
for the Plan year shall not exceed the ADP for Participants who
are non-Highly Compensated Employees for the same Plan year,
multiplied by 2.0, provided that the ADP for Participants who
are Highly Compensated Employees does not exceed the ADP for
Participants who are non-Highly Compensated Employees by more
than two (2) percentage points.
(b) Special Rules - ADP
(1) The ADP for any Participant who is a Highly Compensated
Employee for the Plan Year and who is eligible to have Elective
Deferral Contributions (and Qualified Nonelective 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 Deferral
Contributions (and, if applicable, such Qualified Nonelective
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.
(2) If this plan satisfies the requirements of section 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 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.
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<PAGE> 70
(3) For purposes of determining the ADP of a participant who is a
5-percent owner or one of the ten most highly-paid Highly
Compensated Employees, the Elective Deferral Contributions (and
Qualified Nonelective Contributions or Qualified Matching
Contributions, or both, if treated as Elective Deferral
Contributions for purposes of the ADP test) and Compensation of
such Participant shall include the Elective Deferral
Contributions (and, if applicable Qualified Nonelective
Contributions and Qualified Matching Contribution, or both) and
Compensation for the Plan Year of Family Members (as defined in
section 414(q)(6) of the Code). Family Members, with respect to
such Highly Compensated Employees, shall be disregarded as
separate employees in determining the ADP both for Participants
who are non-Highly Compensated Employees and for Participants
who are Highly Compensated Employees.
(4) For purposes of determining the ADP test, Elective Deferral
Contributions, Qualified Nonelective 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.
(5) The Employer shall maintain records sufficient to demonstrate
satisfaction of the ADP test and the amount of Qualified
Nonelective Contributions or Qualified Matching Contributions,
or both, used in such test.
(6) The determination and treatment of the ADP amounts of any
Participant shall satisfy such other requirements as may be
prescribed by the Secretary of the Treasury.
If the Employer has elected in its Adoption Agreement to
provide for Employee Contributions and/or Matching
Contributions, then subparagraphs (c) and (d) shall apply. In
addition, subparagraphs (c) and (d) shall apply to Employee
Contributions and/or Matching Contributions required to be
tested under Code section 401 (m).
(c) Actual Contribution Percentage Test.
The Actual Contribution Percentage for Participants who are Highly
Compensated Employees for each Plan Year and the ACP for
Participants who are non-Highly Compensated Employees for the same
Plan Year must satisfy one of the following tests:
(1) The ACP for Participants who are Highly Compensated Employees
for the Plan Year shall not exceed the ACP for Participants who
are non-Highly Compensated Employees for the same Plan Year
multiplied by 1.25; or
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<PAGE> 71
(2) The ACP for Participants who are Highly Compensated Employees
for the Plan Year shall not exceed the ACP for Participants who
are non-Highly Compensated Employees for the same Plan Year
multiplied by two (2), provided that the ACP for Participants
who are Highly Compensated Employees does not exceed the ACP
for Participants who are non-Highly Compensated Employees by
more than two (2) percentage points.
(d) Special Rules - ADP/ACP.
(1) Multiple Use: If one or more Highly Compensated Employees
participate in a plan or plans subject to both the ADP and ACP
tests, and the sum of the ADP and ACP of those Highly
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 CODA 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 Amount 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.
(2) For purposes of this section, the Contribution Percentage for
any Participant who is a Highly Compensated Employee and who is
eligible to have Contribution Percentage Amounts allocated to
his account under two or more plans described in section 401(a)
of the Code, or arrangements described in section 401(k) of the
Code that are maintained by the Employer, shall be determined
as if the total of such Contribution Percentage Amount 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.
(3) 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 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.
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(4) For purposes of determining the Contribution percentage of a
participant who is a five-percent owner or one of the ten most
highly-paid Highly Compensated Employees, the Contribution
Percentage Amounts and Compensation for such Participant shall
include the Contribution Percentage Amounts and Compensation
for the Plan Year of Family Members (as defined in section
414(q)(6) of the Code). Family Members, with respect to Highly
Compensated Employees, shall be disregarded as separate
employees in determining the Contribution percentage both for
Participants who are non-Highly Compensated Employees and for
Participants who are Highly Compensated Employees.
(5) For purposes of determining the ACP test, Employee
Contributions are considered to have been made in the Plan Year
in which contributed to the Trust. Matching Contributions and
Qualified Nonelective Contributions are considered made for a
Plan Year if made no later than the end of the 12-month period
beginning on the day after the close of the Plan Year.
(6) Matching Contributions that have been made in the applicable
Plan Year and are forfeited either to correct Excess Aggregate
Contributions or because the contributions to which they relate
are Excess Deferrals, Excess Contributions, or Excess Aggregate
Contributions shall not be considered.
(7) The employer shall maintain records sufficient-to demonstrate
satisfaction of the ACP test and the amount of Qualified
Nonelective Contributions or Qualified Matching Contributions,
or both, used in such test.
(8) The determination and treatment of the Contribution Percentage
of any Participant shall satisfy such other requirements as may
be prescribed by the Secretary of the Treasury.
4.6 TREATMENT OF EXCESSES
(a) Excess Elective Deferral Contributions.
(1) In the event that Elective Deferral Contributions made during a
calendar year exceed the limit specified in Section 4.2(j)(4)
or 4.4(j)(4), then the excess amount plus earnings thereon
shall be distributed to the Participant by the April 15
following the calendar year in which such amount was
contributed, provided that the Participant notifies the Plan
Administrator no later than 30 days in advance of his intent to
withdraw such excess deferral, or is deemed to notify the Plan
Administrator. A Participant 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. The spousal consent
provisions of Article IX shall not apply to any distribution of
excess deferrals.
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(2) Excess Elective Deferrals shall be adjusted for any income or
loss for the Employee's tax year. The income or loss allocable
to excess Elective Deferral Contributions is an amount
determined by multiplying the sum of the income or loss
allocable to the Participant's Elective Deferral Contribution
account for the taxable year by a fraction, the numerator of
which is such Participant's excess Elective Deferral
Contributions for the taxable year, and the denominator of
which is equal to the sum of the Participant's account balance
attributable to Elective Deferral Contributions as of the
beginning of the taxable year plus the Participant's Elective
Deferral Contributions for the taxable year. Income for the gap
period (the period from the end of the taxable year to the date
of distribution) shall not be allocated to Excess Elective
Deferral Contributions.
(3) Matching Contributions, as defined in section 1.44, that are
attributable to Excess Elective Deferral Contributions, shall
be forfeited, and as such, shall be applied to reduce Employer
contributions or pay Plan expenses.
(b) Excess Contributions.
(1) Notwithstanding any other provision of this Plan, Excess
Contributions, plus any income and minus any loss allocable
thereto, shall be distributed no later than the last day of
each Plan Year to Participants to whose accounts such Excess
Contributions were allocated for the preceding Plan Year. If
such excess amounts are distributed more than 2-1/2 months
after the last day of the Plan Year in which such excess
amounts arose, a 10 percent excise tax will be imposed on the
Employer maintaining the Plan with respect to such amounts.
Such distributions shall be made to Highly Compensated
Employees on the basis of the respective portions of the Excess
Contributions attributable to each of such Employees.
The distribution of Excess Contributions made to the Family
Members of a family group that was combined for purposes of
determining a Highly Compensated Employee's Actual Deferral
Percentage shall be allocated among the Family Members in
proportion to the Elective Deferral Contribution (including any
amounts required to be taken into account under subparagraphs
(b)(1) and (b)(2) of Section 4.5 of the plan) of each Family
Member that is combined to determine the Actual Deferral
Percentage.
(2) Excess Contributions shall be treated as annual additions under
the Plan in the Plan Year in which they arose.
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(3) Excess Contributions shall be adjusted for any income or loss
for the Plan Year. The income or loss allocable to Excess
Contributions is an amount determined by multiplying the sum of
the income or loss allocable to the Participant's Elective
Deferral Contribution Account (and, if applicable, the
Qualified Nonelective Contribution Account or the Qualified
Matching Contribution Account or both) for the Plan Year, by a
fraction, the numerator of which is such Participant's Excess
Contributions for the Plan Year and the denominator of which is
equal to the sum of the Participant's account balance
attributable to Elective Deferral Contributions (and Qualified
Nonelective Contributions, or Qualified Matching Contributions,
or both, if any of such contributions are included in the ADP
test) as of the beginning of the plan year plus the
Participant's Elective Deferral Contributions for the plan year
(and Qualified Nonelective Contributions, or Qualified Matching
Contributions, or both, if any of such contributions are
included in the ADP test). Income for the gap period (the
period from the end of the Plan Year to the date of
distribution) shall not be allocated to Excess Contributions.
(4) Excess Contributions shall be distributed from the
Participant's Elective Deferral Contribution Account and
Qualified Matching Contribution Account (if applicable) in
proportion to the Participant's Elective Deferral Contributions
and Qualified Matching Contributions (to the extent used in the
ADP test) for the Plan Year. Excess Contributions shall be
distributed from the Participant's Qualified Nonelective
Contribution Account only to the extent that such Excess
Contributions exceed the balance in. the Participant's Elective
Deferral Contribution account and Qualified Matching
Contribution account.
(5) Matching Contributions, as defined in section 1.44, that are
attributable to Excess Contributions, shall be forfeited, and
as such, shall be applied to reduce Employer contributions or
pay Plan expenses.
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(c) Excess Aggregate Contributions.
(1) Notwithstanding any other provision of this Plan, Excess
Aggregate Contributions, plus any income and minus any loss
allocable thereto, shall be forfeited, if forfeitable, or if
not forfeitable, distributed no later than the last day of each
Plan Year to Participants to whose accounts such Excess
Aggregate Contributions were allocated for the preceding Plan
Year. Excess Aggregate Contributions shall be allocated to
participants who are subject to the family member aggregation
rules of section 414(q)(6) of the Code in the manner prescribed
by the regulations. 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 10 percent
excise tax will be imposed on the employer maintaining the Plan
with respect to those amounts. Excess Aggregate Contributions
shall be treated as annual additions under the Plan.
The distribution of Excess Aggregate Contributions made to the
Family Members of a family group that was combined for purposes
of determining a Highly Compensated Employee's Actual
Contribution Percentage shall be allocated among the Family
Members in proportion to the Employee and Matching
Contributions, Qualified Matching Contributions (if any, and if
all amounts therein are not used in -the ADP test) and, if
applicable, Qualified Nonelective Contributions and Elective
Deferral Contributions (including any amounts required to be
taken into account under subparagraphs (d)(1) and (d)(2) of
Section 4.5 of the plan) of each Family Member that is combined
to determine the Actual Contribution Percentage.
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(2) Excess Aggregate Contributions shall be adjusted for any income
or loss for the Plan Year. The income or loss allocable to
Excess Aggregate Contributions is an amount determined by
multiplying the sum of the income or loss allocable to the
Participant's Employee Contribution Account, Matching
Contribution Account, Qualified Matching Contribution Account
(if any, and if all amounts therein are not used in the ADP
test) and, if applicable, Qualified Nonelective Contribution
Account and Elective Deferral Contribution account for the Plan
Year by a fraction, the numerator of which is such
Participant's Excess Aggregate Contributions for the Plan Year,
and the denominator of which is equal to the sum of the
Participant's account balance attributable to Employee
Contributions, Matching Contributions, Qualified Matching
Contributions (if any, and if all amounts therein are not used
in the ADP test) and, if applicable, Qualified Nonelective
Contributions and Elective Deferral Contributions as of the
beginning of the Plan Year plus the Participant's Employee
Contributions, Matching Contributions, Qualified Matching
Contributions (if any, and if all amounts therein are not used
in the ADP test) and, if applicable, Qualified Nonelective
Contributions and Elective Deferral Contributions, for the Plan
Year. Income for the gap period (the period from the end of the
Plan Year to the date of distribution) shall not be allocated
to Excess Aggregate Contributions.
(3) Forfeitures of Excess Aggregate Contributions shall be applied
to reduce Employer contributions or pay Plan expenses.
(4) Excess Aggregate Contributions shall be forfeited, if
forfeitable or distributed on a pro-rata basis from the
Participant's Employee Contribution Account, Matching
Contribution Account, and Qualified Matching Contribution
Account (and, if applicable, the Participant's Qualified
Nonelective Contribution Account or Elective Deferral
Contribution Account, or both).
(5) Matching Contributions, as defined in section 1.44, that are
attributable to Excess Aggregate Contributions, shall be
forfeited, and as such, shall be applied to reduce Employer
contributions or pay Plan expenses.
4.7 IRP CONTRIBUTIONS.
The Plan Administrator will not accept IRP Contributions which are made
for a taxable year beginning after December 31, 1986. Contributions made
prior to that date will be maintained in a separate Account that will be
nonforfeitable at all times. No part of the IRP Contribution portion of
the Participant's Account will be used to purchase life insurance.
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4.8 ROLLOVER CONTRIBUTIONS.
Without regard to the limitations imposed under Article V, if elected by
the Employer in the Adoption Agreement the Employer may receive on
behalf of a Participant all or a portion of the entire amount of (a) any
distribution from a terminated pension or profit sharing plan meeting
the requirements of section 401(a) of the Code; or (b) any lump sum
distribution theretofore received by such Participant from a pension or
profit sharing plan meeting the requirements of section 401(a) of the
Code, provided that the amounts to be rolled over are in no way
attributable to contributions made while a Key Employee in a Top-Heavy
Plan and are attributable solely to Employer contributions and earnings
thereon, earnings on Employee Contributions, and Employee contributions
which were eligible for a tax deduction under section 219 of the Code,
and earnings thereon.
If Rollover Contributions are elected by the Employer in the Adoption
Agreement, they may be received from an Employee who is not otherwise
eligible to participate in the Plan. Rollover Contributions may be
withdrawn by such Employee pursuant to the provisions of the Adoption
Agreement and Article M. In addition, such Employee may direct the
investment and transfer of amounts in his Participant's Account pursuant
to the terms of Article VI. Upon Termination of Employment, such
Employee shall be entitled to a distribution of his Participant's
Account.
4.9 TRANSFERS.
With regard to the Limitations on Allocations imposed in Article V, the
Trustee may receive, directly from another qualified pension or profit
sharing plan meeting the requirements of Code section 401(a), all or
part of the entire amount distributable on behalf of a Participant from
such Plan. Likewise, the Trustee may receive Transfers representing the
assets of any Predecessor plan.
Transfers may be invested in any manner authorized under the provisions
of this Plan.
4.10 SUSPENSION OF REQUIRED EMPLOYEE CONTRIBUTIONS BY PARTICIPANTS.
The following provisions shall apply with respect to suspension of
Required Employee Contributions by Participants. Any reference to
Voluntary Employee Contributions shall apply only if the Participant is
making such Voluntary Employee Contributions. In the event that a
Participant suspends his Required Employee Contributions he shall become
an Inactive Participant for the period of suspension and shall
automatically have his Voluntary Employee Contributions suspended for
the same period of time.
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(a) Voluntary Suspension. An Active Participant may elect to suspend
his payroll deduction order for his Required Employee Contributions
by filing a written notice thereof with the Plan Administrator.
Such notice shall be effective, and his applicable contributions
shall be suspended, on the date specified in such notice, which
date must be at least 15 days after such notice is filed. The
notice shall specify the period for which such suspension shall be
effective. For all but Small Case Product readopting plans, such
period must be a minimum of three months and may extend
indefinitely. For Small Case Product readopting plans, there is no
minimum period and the suspension may extend indefinitely.
(b) Suspension for Leave. A Participant who is absent from employment
on account of an authorized leave of absence or military leave
shall have his payroll deduction order for Required Employee
Contributions suspended during such leave. Such suspension of
contributions shall be effective on the date payment of
Compensation by the Employer to him ceases, and shall remain in
effect until payment of Compensation is resumed.
(c) Withdrawal Suspension. An Active Participant who elects a
withdrawal in accordance with Article XI may have his Required
Employee Contributions suspended on the date such election becomes
effective. Such suspension shall remain in effect for the number of
months specified therein.
(d) Involuntary Suspension. An Active Participant who ceases to meet
the eligibility requirements as specified in Section 3.1 but who
remains in the employ of the Employer, shall have his Required
Employee Contributions suspended, effective as of the date he
ceases to meet the eligibility requirements. Such suspension shall
remain in effect until he again meets such eligibility
requirements.
The Participant may elect to reactivate his payroll deduction order by
filing a written notice thereof with the Plan Administrator. The payroll
deduction order shall be reactivated following the expiration of the
suspension period described above.
4.11 SUSPENSION OF VOLUNTARY EMPLOYEE CONTRIBUTIONS BY PARTICIPANTS. The
following provisions apply with respect to suspension of Voluntary
Employee Contributions by Participants.
(a) Voluntary Suspension. An Active Participant may elect to suspend
his payroll deduction order for his Voluntary Employee
Contributions by filing a written notice thereof with the Plan
Administrator. Such notice shall be effective, and his applicable
contributions shall be suspended, on the date specified in such
notice, which date must be at least 15 days after such notice is
filed. The notice shall specify the period for which such
suspension shall be effective. For all but Small Case Product
readopting plans, such period must be a minimum of three months and
may extend indefinitely. For Small Case Product readopting plans,
there is no minimum period and the suspension may extend
indefinitely.
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(b) Suspension for Leave. A Participant who is absent from employment
on account of an authorized leave of absence or military leave
shall have his payroll deduction order for Voluntary Employee
Contributions suspended during such leave. Such suspension of
contributions shall be effective on the date payment of
Compensation by the Employer to him ceases, and shall remain in
effect until payment of Compensation is resumed.
(c) Withdrawal Suspension. An Active Participant who elects a
withdrawal in accordance with Article XI may have his Voluntary
Employee Contributions suspended on the date such election becomes
effective. Such suspension shall remain in effect for the number of
months specified therein.
(d) Involuntary Suspension. An Active Participant who ceases to meet
the eligibility requirements as specified in Section 3.1 but who
remains in the employ of the Employer, shall have his Voluntary
Employee Contributions suspended, effective as of the date he
ceases to meet the eligibility requirements. Such suspension shall
remain in effect until he again meets such eligibility
requirements.
The Participant may elect to reactivate his payroll deduction order by
filing a written notice thereof with the Plan Administrator. The payroll
deduction order shall be reactivated following the expiration of the
suspension period described above.
4.12 SUSPENSION OF ELECTIVE DEFERRAL CONTRIBUTIONS. The following provisions
shall apply with respect to suspension of Elective Deferral
Contributions.
(a) Elective Suspension. An Active Participant may elect to suspend his
salary deferral agreement for Elective Deferral Contributions by
filing a written notice thereof with the Plan Administrator. The
salary deferral agreement shall be suspended on the date specified
in such notice, which date must be at least 15 days after such
notice is filed. The notice shall specify the period for which such
suspension shall be effective. For all but Small Case Product
readopting plans, such period must be a minimum of three months and
may extend indefinitely. For Small Case Product readopting plans,
there is no minimum period and the suspension may extend
indefinitely.
(b) Suspension for Leave. A Participant who is absent from employment
on account of an authorized leave of absence or military leave
shall have his salary deferral agreement suspended during such
leave. Such suspension of contributions shall be effective on the
date payment of Compensation by the Employer to him ceases, and
shall remain in effect until payment of Compensation is resumed.
(c) Withdrawal Suspension. An Active Participant who elects a
withdrawal in accordance with Article XI may have his salary
deferral agreement suspended on the date such election becomes
effective. Such suspension shall remain in effect for the number of
months specified therein.
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(d) Non-Elective Suspension. An Active Participant who ceases to meet
the eligibility requirements as specified in Section 3.1 but who
remains in the employ of the Employer, shall have his salary
deferral agreement suspended, effective as of the date he ceases to
meet the eligibility requirements. Such suspension shall remain in
effect until he again meets such eligibility requirements.
The Participant may elect to reactivate his salary deferral agreement
for Elective Deferral Contributions by filing a written notice thereof
with the Plan Administrator. The salary deferral agreement shall be
reactivated following the expiration of the suspension period described
above.
4.13 If the plan sponsor is not the Plan Administrator, the sponsor shall:
(a) Maintain records that enable it to monitor the adopting Employer's
compliance with the requirements of section 401(m) of the Code;
(b) Perform the section 401(m) actual contribution percentage test for
the employer on an annual basis; and
(c) Notify the Employer if it is required to correct Excess Aggregate
Contributions.
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ARTICLE V
LIMITATIONS ON ALLOCATIONS
5.1 If the Participant does not participate in, and has never participated
in another qualified plan maintained by the Employer or 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 5.8(a), the amount of Annual Additions
which may be credited to the Participant's Account for any limitation
year will not exceed the lesser of the maximum permissible amount or any
other limitation contained in this Plan. If the Employer contribution
that would other-wise be contributed or allocated to the Participant's
Account would cause the Annual Additions for the limitation year to
exceed the maximum permissible amount, the amount contributed or
allocated will be reduced so that the Annual Additions for the
limitation year will equal the maximum permissible amount.
5.2 Prior to determining the Participant's actual Compensation for the
limitation year, the Employer may determine the maximum permissible
amount for a Participant on the basis of a reasonable estimation of the
Participant's Compensation for the limitation year, uniformly determined
for all Participants similarly situated.
5.3 As soon as administratively feasible after the end of the limitation
year, the maximum permissible amount for the limitation year will be
determined on the basis of the Participant's actual Compensation for the
limitation year.
5.4 If, pursuant to section 5.3 or as a result of the allocation of
Forfeitures, there is an excess amount, the excess will be disposed of
using any of the following methods:
(a) Employee Contributions or Elective Deferral Contributions, or both,
to the extent they would reduce the excess amount, will be returned
to the Participant. The Contributions returned in accordance with
the preceding shall include any gains or losses attributable to
such contributions.
Employee Contributions so returned will be disregarded with respect
to the Actual Contribution Percentage Test. The Elective
Deferral Contributions so returned will be disregarded with respect
to the elective deferral limitation described in Section 4.2(j)(4)
of the plan and the Actual Deferral Percentage Test.
(b) If the Participant is covered by the Plan at the end of the
limitation year, the excess amount in the Participant's Account,
other than Employee Contributions and Elective Deferral
Contributions, will be used to reduce Employer contributions
(including any allocation of Forfeitures) for such Participant in
the next limitation year, and each succeeding limitation year, if
necessary.
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(c) If the Participant is not covered by the Plan at the end of a
limitation year, the excess amount will be held unallocated in a
suspense account. The suspense account will be applied to reduce
future Employer contributions (including allocation of any
Forfeiture) for all remaining participants in the next limitation
year, and each succeeding limitation year if necessary.
(d) If a suspense account is in existence at any time during the
limitation year pursuant to this section, it will not participate
in the allocation of the Trust or Insurance Company's gains and
losses. If a suspense account is in existence at any time during a
particular limitation year, all amounts in the suspense account
must be allocated and reallocated to the Participants' Account
before any Employer or any Employee Contributions may be made to
the Plan for that limitation year. Excess amounts may not be
distributed to Participants or former Participants.
5.5 (a) This Section applies if, in addition to this Plan, the Participant
is covered under another qualified master or prototype defined
contribution plan maintained by the Employer, or 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 5.8(a), during any limitation
year. The Annual Additions which may be credited to a Participant's
account under this Plan for any such limitation year will not
exceed the maximum permissible amount reduced by the Annual
Additions credited to a Participant's Account under the other plans
and welfare benefit funds for the same limitation year. If the
Annual Additions with respect to the Participant under other
defined contribution plans and welfare benefit funds maintained by
the Employer are less than the maximum permissible amount and the
Employer contribution that would other-wise be contributed or
allocated to the Participant's Account under this Plan would cause
the Annual Additions for the limitation year to exceed this
limitation, the amount contributed or allocated will be reduced so
that the Annual Additions under all such plans and funds for the
limitation year will equal the maximum permissible amount. If the
Annual Additions with respect to the Participant under such other
defined contribution plans and welfare benefit funds in the
aggregate are equal to or greater than the maximum permissible
amount, no amount will be contributed or allocated to the
Participant's Account under this Plan for the limitation year.
(b) Prior to determining the Participant's actual compensation for the
limitation year, the Employer may determine the maximum permissible
amount for a Participant in the manner described in Section 5.2.
(c) As soon as is administratively feasible after the end of the
limitation year, the maximum permissible amount for the limitation
year will be determined on the basis of the Participant's actual
Compensation for the limitation year.
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(d) If, pursuant to Section 5.5(c), or as a result of the allocation of
forfeitures, a Participant'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 welfare benefit fund or individual medical account will be
deemed to have been allocated first regardless of the actual
allocation date.
(e) If an excess amount was allocated to a Participant on an allocation
date of this Plan which coincides with an allocation date of
another plan, the excess amount attributed to this Plan will be the
product of:
(1) the total excess amount allocated as of such date, times
(2) The ratio of (i) the annual additions allocated to the
Participant for the limitation year as of such date under this
Plan to (ii) the total annual additions allocated to the
Participant for the limitation year as of such date under this
and all the other qualified master or prototype defined
contribution plans.
(f) Any excess amount attributed to this Plan will be disposed in the
manner described in Section 5.4.
5.6 If the Participant is covered under another qualified defined
contribution plan maintained by the Employer which is not a master or
prototype plan, Annual Additions which may be credited to the
Participant's Account under this Plan for any limitation year will be
limited in accordance with Section 5.5 as though the other plan were a
master or prototype plan unless the employer provides other limitations
in the Limitations on Allocations section of the Adoption Agreement.
5.7 If the Employer maintains, or at any time maintained, a qualified
defined benefit plan covering any Participant in this Plan, the sum of
the Participant's defined benefit plan fraction and defined contribution
plan fraction will not exceed 1.0 in any limitation year. The Annual
Additions which may be credited to the Participant's Account under this
Plan for any limitation year will be limited in accordance with the
Limitations on Allocations section of the Adoption Agreement.
5.8 Definitions. The following definitions apply.for purposes of Article V.
(a) Annual Additions: The sum of the following amounts credited to a
Participant's Account for the limitation year:
(1) All contributions made by the Employer which shall include:
Elective Deferral Contributions;
Matching Contributions;
Nonelective Contributions;
Qualified Nonelective Contributions;
Qualified Matching Contributions;
(2) Employee Contributions;
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(3) Forfeitures; and
(4) Amounts allocated, after March 31, 1984, to an individual
medical account, as defined in section 415 (1) (2) of the Code,
which is part of a pension or annuity plan maintained by the
Employer, are treated as Annual Additions to a defined
contribution plan. Also, 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 internal Revenue Code
section 419A(d)(3), under a welfare benefit fund, as defined in
section 419(e) of the Code, maintained by the Employer, are
treated as Annual Additions to a defined contribution plan.
For this purpose, any excess amount applied under Sections 5.4
or 5.5(f) in the limitation year to reduce Employer
contributions will be considered Annual Additions for such
limitation year.
(b) Compensation: As selected by the Employer in the Adoption
Agreement, Compensation shall mean all of a participant's
(1) Wages, Tips, and Other Compensation Box on Form W-2.
Compensation is defined as wages as defined in Section 3401(a)
and all other payments of compensation to an employee by the
employer (in the course of the employer's trade or business)
for which the employer is required to furnish the employee a
written statement under Section 6041(d) and 6051(a)(3) of the
Code. Compensation must be determined without regard to any
rules under Section 3401(a) that limit the remuneration
included in wages based on the nature or location of the
employment or the services performed (such as the exception for
agricultural labor in Section 3401 (a) (2)).
(2) Modified Wages, Tips, and Other Compensation Box on Form W-2.
Compensation is defined as wages as defined in Section 3401(a)
and all other payments of compensation to an employee by the
employer (in the course of the employer's trade or business)
for which the employer is required to furnish the employee a
written statement under Section 6041(d) and 6051(a)(3) of the
Code. Compensation must be determined without regard to any
rules under Section 3401(a) that limit the remuneration
included in wages based on the nature or location of the
employment or the services performed (such as the exception for
agricultural labor in Section 3401(a)(2)).
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Notwithstanding the foregoing, the compensation described above
shall exclude amounts paid or reimbursed by the Employer for
moving expenses incurred by an Employee, but only to the extent
that at the time of the payment it is reasonable to believe
that these amounts are deductible by the Employee under Section
217 of the Code.
(3) Section 3401(A) wages. Wages as defined in section 3401(a) of
the Code for the purposes of income tax withholding at the
source but determined without regard to any rules that limit
the remuneration included in wages based on the nature or
location of the employment or the services performed (such as
the exception for agricultural labor in section 3401(a)(2) of
the Code).
(4) 415 safe-harbor compensation. Wages, salaries, and fees for
professional services and other amounts received (without
regard to whether or not an amount is paid in cash) for
personal services actually rendered in the course of employment
with the employer maintaining the plan to the extent that the
amounts are includable in gross income (including, but not
limited to, commissions paid salesmen, compensation for
services on the basis of a percentage of profits, commissions
on insurance premiums, tips, bonuses, fringe benefits,
reimbursements and expense allowances), and excluding the
following:
(A) Employer contributions to a plan of deferred compensation
which are not includable 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;
(B) 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;
(C) Amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified stock
option; and
(D) 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 (when ther
or not the amounts are actually excludable from the gross
income of the Employee).
For any Self-Employed Individual, Compensation will mean Earned
Income.
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For limitation years beginning after December 31, 1991, for
purposes of applying the limitations of this article,
Compensation for a limitation year is the Compensation actually
paid or includable in gross income during such limitation year.
Notwithstanding the preceding sentence, Compensation for a
Participant in a defined contribution plan who is permanently and
totally disabled (as defined in section 22(e)(3) of the Code) is
the Compensation such participant would have received for the
limitation year if the Participant had been paid at the rate of
Compensation paid immediately before becoming permanently and
totally disabled; such imputed Compensation for the disabled
Participant may be taken into account only if the Participant is
not a Highly Compensated Employee (as defined in section 414(q) of
the Code) and contributions made on behalf of such Participant are
nonforfeitable when made.
(c) Defined benefit fraction: A fraction, the numerator of which is the
sum of the Participant's projected annual benefits under all the
defined benefit plans (whether or not terminated) maintained by the
Employer, and the denominator of which is the lesser of 125 percent
of the dollar limitation determined for the limitation year under
section 415(b) and (d) of the Code, or 140 percent of the highest
average compensation including any adjustments under section 415(b)
of the Code.
Notwithstanding the above if the Participant was a Participant as
of the first day of the limitation year beginning after December
31, 1986, in one or more 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 percent of the sum of the
annual benefits under such plans which the Participant had accrued
as of the later of the close 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 for
all limitation years beginning before January 1, 1987.
Notwithstanding the foregoing, for any Top-Heavy Plan Year, 100
shall be substituted for 125 unless the extra minimum allocation is
being made pursuant to the Employer's election in the Adoption
Agreement. However, for any Plan Year in which this Plan is a
Super Top-Heavy Plan, 100 shall be substituted for 125 in any
event.
(d) Defined contribution dollar limitation: $30,000 or if greater,
one-fourth of the defined benefit dollar limitation set forth in
section 415 (b) (1) of the Code as in effect for the limitation
year.
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(e) Defined contribution fraction: A fraction, the numerator of which
is the sum of the Annual Additions to the Participant's account
under all the 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 Participant's nondeductible employee contributions to all
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(l)(2) of the
Code, maintained by the Employer), and the denominator of which is
the sum of the maximum aggregate 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 aggregate amount in any limitation year is
the lesser of 125 percent of the dollar limitation determined under
sections 415 (b) and (d) of the Code in effect under sections 415
(c) (1) (A) of the Code or 35 percent of the Participant's
Compensation for such year.
If the employee was a Participant 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
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 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
5, 1986, but using the section 415 limitation applicable to the
first limitation year beginning on or after January 1, 1987.
Notwithstanding the foregoing, for any Top-Heavy Plan Year, 100
shall be substituted for 125 unless the extra minimum allocation is
being made pursuant to the Employer's election in the Adoption
Agreement. However, for any Plan Year in which this Plan is a
Super Top-Heavy Plan, 100 shall be substituted for 125 in any
event.
The Annual Addition for any limitation year beginning before
January 1, 1987 shall not be recomputed to treat all Employee
Contributions as Annual Additions.
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(f) Employer: For purposes of this Article, Employer shall mean the
employer that adopts this Plan, and all members of a controlled
group of corporations (as defined in Code section 414(b) as
modified by section 415 (h)), all commonly controlled trades or
businesses (as defined in Code section 414(c) as modified by
section 415 (h)) or affiliated service groups (as defined in Code
section 414(m)) 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: The excess of the Participant's Annual Additions for
the limitation year over the maximum permissible amount.
(h) Highest Average Compensation: The average compensation for the
three consecutive years of service with the Employer that produces
the highest average. A year of service with the Employer is the
12-consecutive month period defined in Section 1.56.
(i) Limitation Year: A calendar year, or the 12-consecutive month
period elected by the Employer in the Limitation Year section of
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 12-consecutive month period, the new
limitation year must begin on a date within the limitation year in
which the amendment is made.
(j) Master or Prototype Plan: A plan the form of which is the subject
of a favorable opinion letter from the Internal Revenue Service.
(k) Maximum Permissible Amount: The lesser of $30,000 (or, beginning
January 1, 1988, such larger amount determined by the Commissioner
for the limitation year). The maximum Annual Addition that may be
contributed or allocated to a Participant's Account under the Plan
for any limitation year shall not exceed the lesser of:
(a) the defined contribution dollar limitation, or
(b) 25 percent of the Participant's Compensation for the
limitation year.
The Compensation limitation referred to in (b) shall not apply to
any contribution for medical benefits (within the meaning of
section 401(h) or section 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 12-consecutive month
period, the maximum permissible amount will not exceed the defined
contribution dollar limitation multiplied by the following
fraction:
Number of months in the short limitation year
---------------------------------------------
12
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(l) Projected Annual Benefit: 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 Participant
would be entitled under the terms of the Plan assuming:
(1) the Participant will continue employment until normal
retirement age under the Plan (or current age, if later), and
(2) the Participant'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.
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ARTICLE VI
ANNUITY CONTRACT AND PARTICIPANT'S ACCOUNT
6.1 PARTICIPANT'S ACCOUNT. A Participant's Account shall be maintained on
behalf of each Participant until such account is distributed in
accordance with the terms of this Plan.
Each Participant shall have the exclusive authority to direct the
investment of contributions made by the Employee, including Elective
Deferral Contributions, IRP Contributions and Rollover Contributions, if
applicable, from among the investment options selected by the Employer.
The Participant shall elect, by written notice to the Plan
Administrator, to have a minimum of 1% of such amounts invested in one
such investment fund, with the balance invested in multiples of 1%,
among the other such investment funds, such that the total of each
Participant's investment choices as allocated under the terms of the
Plan add up to 100%.
If selected by the Employer in its Adoption Agreement, the Participant
additionally shall have the exclusive authority to direct the investment
of contributions made by the Employer from among the investment choices
selected by the Employer.
The Plan Administrator or the Participant, as the case may be, may
change such amounts as often as the Plan Administrator may allow in
accordance with the terms of the investment funds in which the
Participant's Account is being invested.
6.2 INVESTMENT TRANSFERS. Each Participant shall have the exclusive
authority to direct the transfer of amounts between the investment funds
designated by the Employer, attributable to his Employee Contributions,
including Elective Deferral Contributions, IRP Contributions and
Rollover Contributions, if applicable.
If the Employer selects in its Adoption Agreement to grant the
Participant exclusive authority to direct the investment - of
contributions made by the Employer, the Participant shall also have the
exclusive authority to transfer contributions made by the Employer from
among the investment choices selected by the Employer.
The transfer of amounts between investment funds shall be subject to the
rules of the investment funds in which the Participant's Account is
invested or is to be invested.
6.3 A Participant's Account shall be maintained on behalf of each
Participant until such Account is distributed in accordance with the
terms of this Plan. At least once per year, as of the last day of the
Plan Year, each Participant's Account shall be adjusted, in the ratio
that such amount balance bears to all account balances, for any
earnings, gains, losses, contributions, withdrawals, expenses, and loans
attributable to such Plan Year, in order to obtain a new valuation of
the Participant's Account. The assets of the trust will be valued
annually at fair market value as of the last day of the Plan Year.
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ARTICLE VII
LIFE INSURANCE POLICIES
7.1 OPTIONAL PURCHASE OF LIFE INSURANCE. If the Employer in its Adoption
Agreement shall permit the purchase of life insurance on the lives of
all Participants hereunder, each Active Participant may elect that in
lieu of the entire Contribution on his behalf being credited to his
Participant's Account, a portion of such Contribution shall be applied
to the purchase of a Life Insurance Policy or Policies on his life. The
application for each Policy shall be signed by the Participant and by
the Trustee and shall conform to the requirements of the Insurance
Company, including any requested evidence of insurability, and the
requirements of this section. All Life Insurance Policies shall be
issued so as to permit a common billing date. Any Policy on the life of
a Participant who can qualify for Waiver of Premium thereunder and
Participant Account Contribution Disability Benefits thereunder may
include such benefits if applied for by the Participant. The
Administrator may adopt reasonable rules regarding the purchase of Life
Insurance Policies provided such rules are administered in a consistent
and nondiscriminatory manner. No application shall be made hereunder for
any Life Insurance Policy on the life of a Participant acceptable to the
Insurance Company at standard premium rates for a face amount of less
that $1,000 for the first, or any additional policy issued on the
Participant's life.
7.2 PREMIUMS ON LIFE INSURANCE POLICIES. The premiums on all Life Insurance
Policies on the life of a Participant shall be paid from the portion of
his Participant's Account attributable to contributions made by the
Employer, to the extent sufficient therefor, otherwise in one of the
following manners:
(a) by a loan against the Participant's Policy or Policies, under the
Automatic Premium Loan Provision thereof, or
(b) by payment out of his Participant's Account; or
If the Participant is not acceptable to the Insurance Company as a
standard risk at standard rates, a Policy with the same premium but a
lesser death benefit may be purchased.
7.3 LIMITATIONS ON PREMIUMS. In no case shall the cumulative total premiums
paid on all policies held on the life of a Participant hereunder exceed
an amount equal to the applicable percentage set forth below of all
Contributions (other than Employee Contributions) and Forfeitures
thereto for allocated or currently due on his behalf:
(a) 49% in the case of ordinary life insurance or similar policies.
(b) 25% in the case of term insurance policies or a combination of
policies, with premiums on ordinary life insurance or similar
policies being given half weight.
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If such cumulative total premiums would otherwise exceed this amount,
the necessary steps to avoid this result shall be taken by reduction of
the Participant's life insurance coverage by changing all or a portion
of his coverage to paid-up life insurance or by selling the excess
portion to the Participant.
The payment of life insurance premiums shall be further subject to the
terms and conditions of Article V.
7.4 A Participant who no longer wishes to have any part of his allocable
share of Contributions used to pay the premiums for any Life Insurance
Policy or Policies may withdraw a prior election by written notice to
the Trustee to that effect. Any Policy shall be disposed of in
accordance with its provisions as the Trustee shall direct, and the
Contributions on the Participant's behalf which would otherwise be used
to pay the premiums for said Policy shall thereafter be credited to the
Participant's Account.
7.5 RIGHTS UNDER POLICIES. Each policy shall provide that the Trustee shall
have the right to receive any of all payments that may be due during the
Participant's lifetime. Any death benefit shall be payable directly to
the Beneficiary named in the policy and the Participant shall have the
right, either directly or through the Trustee, to change the Beneficiary
from time to time and to elect settlement options under the policy for
the benefit of the Beneficiary. The Trustee shall have the right to
exercise all other options and privileges contained in the policy and
shall exercise such rights and privileges in a manner consistent with
the terms of the Plan.
7.6 LOANS. No loans shall be made against any of the policies hereunder
either from the Insurance Company or any other source unless such loans
are made in order to pay amounts then due as premiums thereon.
7.7 CONDITIONS OF COVERAGE. Except as may be otherwise provided in any
conditional or binding receipt issued by the Insurance Company, there
shall be no coverage and no death benefit payable under any policy to be
purchased from the Insurance Company until such policy shall have been
delivered and the premium therefor shall have been paid to the Insurance
Company as a premium for that policy. Neither the Employer nor the
Trustee shall have any responsibility as to the effectiveness of any
Life Insurance Policy purchased from the Insurance Company hereunder nor
be under any liability or obligation to pay any amount to any
Participant or his Beneficiary by reason of any failure or refusal by
the Insurance Company to make such payment.
7.8 POLICY NOT YET IN FORCE. If at the death of any Participant, the Trustee
shall be holding any amount intended for the purchase of any Life
Insurance Policy on the Participant's life, but coverage under such
policy shall not yet be in force, the Trustee shall credit such amount
to the Participant's Account to be disposed of as a portion thereof.
7.9 VALUE OF POLICY. The value of any policy on the life of a living
Participant for any purpose under this Plan shall be that amount which
the Insurance Company would pay upon surrender of such policy in
accordance with its usual rules and practices.
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7.10 DIVIDENDS. If dividends are allowed on any Life Insurance Policy, they
shall be used to provide additional benefits under the policy.
7.11 No life insurance protection shall continue in force under the Plan
subsequent to a Participant's retirement or Termination of Employment,
whichever occurs first. As of such date, any Life Insurance Policy shall
be distributed to the Participant in accordance with its terms and the
terms of Section 8.3.
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ARTICLE VIII
DISTRIBUTION OF BENEFITS
8.1 PAYMENT OF BENEFITS. The rules and procedures for electing the timing
and form of distribution effective for each Participant or Beneficiary
shall be formulated and administered by the Plan Administrator in a
consistent manner for all Participants in similar circumstances. The
distribution shall normally be made in the form of an Annuity.
Each Participant may elect a distribution in the form of cash or a
combination of cash and Annuity. All distributions are subject to the
provisions of Article DC, joint and Survivor Annuity Requirements.
If the Participant's Vested Interest exceeds (or at the time of any
prior distribution exceeded) $3500, and such amount is immediately
distributable, the Participant and the Participant's Spouse (or where
either the Participant or the Spouse has died, the survivor) must
consent to any distribution of such account balance. The consent of the
Participant and the Participant's Spouse shall be obtained in writing
within the 90-day period ending on the annuity starting date. The
annuity starting date is the first day of the first period for which an
amount is paid as an annuity or any other form. The Plan Administrator
shall notify the Participant and the Participant's Spouse of the right
to defer any distribution until the Participant's account balance is no
longer immediately distributable. Such notification shall include a
general description of the material features, and an explanation of the
relative values of, the optional forms of benefit available under the
Plan in a manner that would satisfy the notice requirements of section
417(a)(3) of the Code, and shall be provided no less than 30 days and no
more than 90 days prior to the annuity starting date.
Notwithstanding the foregoing, only the Participant need consent to the
commencement of a distribution in the form of a Qualified joint and
Survivor Annuity while the account balance is immediately distributable.
(Furthermore, if payment in the form of a Qualified joint and Survivor
Annuity is not required with respect to the Participant pursuant to
section 9.6 of the Plan, only the Participant need consent to the
distribution of an account balance that is immediately distributable.)
Neither the consent of the Participant nor the Participant's Spouse
shall be required to the extent that a distribution is required to
satisfy section 401(a)(9) or section 415 of the Code. In addition, upon
termination of this Plan if the Plan does not offer an annuity option
(purchased from a commercial provider) and if the Employer or any entity
within the same controlled group as the Employer does not maintain
another defined contribution plan (other than an employee stock
ownership plan as defined in section 4975(e)(7) of the Code), the
Participant's account balance will, without the Participant's consent,
be distributed to the Participant. However, if any entity within the
same controlled group as the Employer maintains another defined
contribution plan (other than an employee stock ownership plan as
defined in section 4975(e)(7) of the Code then the Participant's account
balance will be transferred, without the Participant's consent, to the
other plan if the Participant does not consent to an immediate
distribution.
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For purposes of determining the applicability of the foregoing consent
requirements to distributions made before the first day of the first
Plan Year beginning after December 31, 1988, the Participant's vested
account balance shall not include amounts attributable to accumulated
deductible employee contributions within the meaning of section
72(o)(5)(B) of the Code.
The terms of any annuity contract purchased and distributed by the Plan
to a Participant or Spouse shall comply with the requirements of this
Plan.
An account balance is considered immediately distributable if any part
of the account balance could be distributed to the Participant (or
Surviving Spouse) before the Participant attains or would have attained
if not deceased) the later of Normal Retirement Age or age 62.
8.2 COMMENCEMENT OF BENEFITS. Unless the Participant elects otherwise,
distribution of benefits will begin no later than the 60th day after the
latest of the close of the Plan Year in which:
(a) the Participant attains age 65 (or Normal Retirement Age, if
earlier);
(b) the 10th anniversary of the year in which the Participant commenced
participation in the Plan occurs; or,
(c) the Participant terminates service with the Employer.
Notwithstanding the foregoing, the failure of a Participant and Spouse
to consent to a distribution while a benefit is immediately
distributable, within the meaning of Section 8.1 of the Plan, shall be
deemed to be an election to defer commencement of payment of any benefit
sufficient to satisfy this section.
However, in no event shall distribution of that portion of a
Participant's Account attributable to Elective Deferral Contributions,
Qualified Matching Contributions, and/or Qualified Nonelective
Contributions, be made prior to the earliest of the Participant's
Retirement, death, Disability, Serious Financial Hardship, Termination
of Employment or attainment of age 59-1/2, unless such distribution is
made on account of
(a) The Employer's sale of its interest in a subsidiary and the
Participant continues employment with the subsidiary; or
(b) The Employer's sale of substantially all assets used in its trade
or business and the Participant continues employment with the
employer acquiring such assets or
(c) The termination of the Plan, as provided in Section XVII, without
the establishment of a successor defined contribution plan pursuant
to section 401 (k) (10) (A) (i) of the Code, within the same Plan
Year.
8.3 FROM LIFE INSURANCE POLICIES. The Trustee shall arrange with the
Insurance Company any distribution due to any Participant during his
lifetime from any Life Insurance Policy or Policies on his life. The
manner of distribution shall be a transfer of the values of said Policy
or Policies to the Participant's Account for distribution as a portion
thereof in accordance with this Article.
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Subject to Article IX, joint and Survivor Annuity Requirements, the
contracts on a Participant's life will be converted to cash or an
annuity or distributed to the Participant upon commencement of benefits.
In the event of any conflict between the terms of this Plan and the
terms of any insurance contract purchased hereunder, the Plan provisions
shall control.
8.4 DISTRIBUTION REQUIREMENTS.
(a) Except as otherwise provided in Article IX, joint and Survivor
Annuity Requirements, the requirements of Sections 8.4, 8.6, 8.7
and 8.8 shall apply to any distribution of a Participant's Accrued
Benefit and will 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.
(b) All distributions required under this Article shall be determined
and made in accordance with the Income Tax Regulations under
section 401(a)(9), including the minimum distribution incidental
benefit requirement of section 1.401(a)(9)-2 of the regulations.
The entire interest of a Participant must be distributed or begin
to be distributed no later than the Participant's required
beginning date.
(c) Limits on Settlement Options. Distributions, if not made in a lump
sum, may only be made over one of the following periods:
(1) the life of the Participant,
(2) the life of the Participant and a designated beneficiary,
(3) a period certain not extending beyond the life expectancy of the
Participant, or
(4) a period certain not extending beyond the joint and last
survivor expectancy of the Participant and a designated
beneficiary.
(d) Minimum Amounts to be Distributed.
(1) If the Participant's entire interest is to be distributed over
(1) a period not extending beyond the life expectancy of the
Participant or the joint life and last survivor expectancy of
the Participant and the Participant's designated beneficiary or
(2) 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 Participant's benefit by the
applicable life expectancy.
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(2) For calendar years beginning before January 1, 1989, if the
Participant's Spouse is not the designated beneficiary, the
method of distribution selected must assure that at least 50%
of the present value of the amount available for distribution
is paid within the life expectancy of the Participant.
(3) 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
Participant's benefit by the lesser of (1) the applicable life
expectancy or (2) if the Participant'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
Income Tax Regulations. Distributions after the death of the
Participant shall be distributed using the applicable life
expectancy in section 8.4 (d)(i) above as the relevant divisor.
without regard to regulations section 1.401(a)(9)-2.
(4) The minimum distribution required for the Participant's first
distribution calendar year must be made on or before the
Participant's required beginning date. The minimum distribution
for other calendar years, including the minimum distribution
for the distribution calendar year in which the Employee's
required beginning date occurs, must be made on or before
December 31 of that distribution calendar year.- - - -
(e) Other Forms. If the Participant'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 regulations
thereunder.
8.5 NONTRANSFERABLE. Any annuity contract distributed herefrom must be
nontransferable.
8.6 DEATH DISTRIBUTION PROVISIONS. Upon the death of the Participant, the
following distribution provisions shall take effect:
(a) If the Participant 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 Participant's death.
(b) If the Participant dies before distribution of his interest begins,
distribution of the Participant's entire interest shall be
completed by December 31 of the calendar year containing the fifth
anniversary of the Participant's death except to the extent that an
election is made to receive distributions in accordance with (1) or
(2) below:
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(1) If any portion of the Participant's interest is payable to a
designated Beneficiary, distributions may be made over 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 Participant died;
(2) If the designated Beneficiary is the Participant's Surviving
Spouse, the date distributions are required to begin in
accordance with (1) above shall not be earlier than the later
of (i) December 31 of the calendar year immediately following
the calendar year in which the Participant died and (ii)
December 31 of the calendar year in which the Participant would
have attained age 70-1/2.
If the Participant has not made an election pursuant to this
Section 8.6(b) by the time of his or her death, the Participant's
Designated Beneficiary must elect the method of distribution no
later than the earlier of (1) December 31 of the calendar year in
which distributions would be required to begin under this section,
or (2) December 31 of the calendar year which contains the fifth
anniversary of the date of death of the Participant. If the
Participant has no Designated Beneficiary, or if the designated
beneficiary does not elect a method of distribution, distribution
of the Participant's entire interest must be completed by December
31 of the calendar year containing the fifth anniversary of the
Participant's death.
(c) For purposes of Section 8.6(b), if the Surviving Spouse dies after
the Participant, b ut before payments to such Spouse begin, the
provisions of this Section, with the exception of paragraph (b)(2)
therein, shall be applied as if the Surviving Spouse were the
Participant.
(d) For purposes of this Section, any amount paid to a child of the
Participant 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.
(e) For purposes of this Section, distribution of a Participant's
interest pursuant to Section 8.6(b) is considered to begin on the
Participant's required beginning date (or, if paragraph (c) above
is applicable, the date distribution is required to begin to the
Surviving Spouse). If distribution in the form of an Annuity
irrevocably commences to the Participant before the required
beginning date, the date distribution is considered to begin is the
date distribution actually commences.
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8.7 DEFINITIONS.
(a) Applicable Life Expectancy. The life expectancy (or joint and last
survivor expectancy) calculated using the attained age of the
Participant (or Designated Beneficiary) as of the Participant'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 so recalculated. The applicable calendar year shall
be the first distribution calendar year, and if life expectancy is
being recalculated such succeeding calendar year.
(b) Designated Beneficiary. The individual who is designated as the
beneficiary under the Plan in accordance with section 401 (a) (9)
and the regulations thereunder.
(c) Distribution Calendar Year. A calendar year for which a minimum
distribution is required. For distributions beginning before the
Participant's death, the first distribution calendar year is which
the calendar year immediately preceding the calendar year which
contains the Participant's required beginning date. For
distributions beginning after the Participant's death, the first
distribution calendar year is the calendar year in which
distributions are required to begin pursuant to Section 8.6 above.
(d) Life Expectancy. Life expectancy and-joint and last survivor
expectancy are computed by use of the expected return multiples in
Table V and VI of section 1.72-9 of the Income Tax Regulations.
Unless otherwise elected by the Participant (or Spouse, in the case
of distributions described in Section 8.6(b) (2) by the time
distributions are required to begin,) life expectancies shall be
recalculated annually. Such election shall be irrevocable as to the
Participant (or Spouse) and shall apply to all subsequent years.
The life expectancy of a non-spouse Beneficiary may not be
recalculated.
(e) Participant's Benefit.
(1) 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.
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(2) Exception for second distribution calendar year. For purposes
of paragraph (i) 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.
(f) Required Beginning Date.
(1) General Rule. The first required beginning date of a
Participant is the first day of April of the calendar year
following the calendar year in which the Participant attains
age 70-1/2.
(2) Transitional Rules. The required beginning date of a
Participant who attains age 70-1/2 before January 1, 1988,
shall be determined in accordance with (A) or (B) below:
(A) Non-5-Percent Owners. The required beginning date of a
Participant 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
70-1/2 occurs.
(B) 5-Percent Owners. The required beginning date of a
Participant 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 Participant attains
age 70-1/2, or
(ii) the earlier of the calendar year with or within
which ends the Plan Year in which the Participant
becomes a 5-percent owner, or the calendar year in
which the Participant retires.
The Required Beginning Date of a Participant who is not a
5 -percent owner who attains age. 70-1/2 during 1988 and
who has not retired as of January 1, 1989, is April 1,
1990.
(3) 5-Percent Owner. A Participant is treated as a 5-percent owner
for purposes of this section if such Participant 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
66-1/2 or any subsequent plan year.
(4) Once distributions have begun to a 5-percent owner under this
section, they must continue to be distributed, even if the
Participant ceases to be a 5-percent owner in a subsequent
year.
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8.8 TRANSITIONAL RULE.
(a) Notwithstanding the other requirements of this Article and subject
to the requirements of Article DC, joint and Survivor Annuity
Requirements, distribution on behalf of any employee, including a
5-percent owner, may be made in accordance with all of the
following requirements (regardless of when such distribution
commences):
(1) The distribution by the Plan is one which would not have
disqualified such Plan under section 401(a)(9) of the Code as
in effect prior to amendment by the Deficit Reduction Act of
1984.
(2) 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 is deceased, by a Beneficiary
of such Employee.
(3) Such designation was in writing, was signed by the Employee or
the Beneficiary, and was made before January 1, 1984.
(4) The Employee had accrued a benefit under the Plan as of
December 31, 1983.
(5) 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.
(b) 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
distribution to be made upon the death of the Employee.
(c) 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 (a) (1) and (5).
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(d) If a designation is revoked, any subsequent distribution must
satisfy the requirements of section 401(a)(9) of the Code and the
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 regulations
thereunder, but for the section 242(b)(2) election. For calendar
years beginning after December 31, 1988, such distributions must
meet the minimum distribution incidental benefit requirements in
section 1.401 (a) (9)-2 of the Income Tax 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 from one plan to another plan, the rules in
Q&AJ-2 and Q&AJ-3 shall apply.
8.9 ALTERNATE PAYEE SPECIAL DISTRIBUTION. Distributions pursuant to Section
19.6 may be made without regard to the age or employment status of the
Participant.
8.10 DIRECT ROLLOVERS.
(a) This Section 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
Section, 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,
except as otherwise provided by the Employer's administrative
procedures as permitted by regulations. In addition, a
Distributee's election of a Direct Rollover shall be subject to the
following requirements:
(1) If the Distributee elects to have only a portion of an Eligible
Rollover Distribution paid to an Eligible Retirement Plan in a
Direct Rollover, that portion must be equal to at least $500.
(2) If the entire amount of a Distributee's Eligible Rollover
Distribution is $500 or less, the distribution may not be
divided. Instead, the entire amount must either be paid to the
Distributee or to an Eligible Retirement Plan in a Direct
Rollover.
(3) A Distributee may not elect a Direct Rollover if the
Distributee's Eligible Rollover Distributions during a year are
reasonably expected by the Plan Administrator to total less
than $200 (or any lower minimum amount specified by the Plan
Administrator).
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(4) A Distributee may not elect a Direct Rollover of an Offset
Amount.
(5) A Distributee's election to make or not make a Direct Rollover
with respect to one payment in a series of periodic payments
shall apply to all subsequent payments in the series, except
that a Distributee shall be permitted at any time to change,
with respect to subsequent payments in the series of periodic
payments, a previous election to make or not make a Direct
Rollover. A change of election shall be accomplished by the
Distributee notifying the Plan Administrator of the change.
Such notice must be in the form and manner prescribed by the
Plan Administrator.
(b) Definitions.
(1) Direct Rollover: A Direct Rollover is a payment by the plan to
the Eligible Retirement Plan specified by the Distributee.
(2) 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
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.
(3) 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 an individual
retirement annuity.
(4) 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).
(5) Offset Amount: An Offset Amount is the amount by which a
Participant's Account is reduced to repay a loan from the Plan
(including the enforcement of the Plan's security interest in
the Participant's Account).
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ARTICLE IX
JOINT AND SURVIVOR ANNUITY REQUIREMENTS
9.1 Except as provided with respect to certain plans in Section 9.6, the
provisions of this Article shall apply to any Participant who is
credited with at least one Hour of Service with the Employer on or after
August 23, 1984, and such other Participants as provided in Section 9.7.
9.2 QUALIFIED JOINT AND SURVIVOR ANNUITY. Unless an optional form of benefit
is selected pursuant to a Qualified Election within the 90-day period
ending on the Annuity Starting Date, a married Participant's Vested
Account Balance will be paid in the form of a Qualified Joint and
Survivor Annuity and an unmarried Participant's vested account balance
will be paid in the form of a life Annuity. The Participant may elect to
have such Annuity distributed upon attainment of the Earliest Retirement
Age under the Plan.
9.3 QUALIFIED PRERETIREMENT SURVIVOR ANNUITY. Unless an optional form of
benefit has been selected within the Election Period pursuant to a
qualified election, if a Participant dies before the Annuity Starting
Date then no less than 50 percent (or 100 percent if so elected in the
Adoption Agreement) of the Participant's Vested Account Balance shall be
applied toward the purchase of an Annuity for the life of the Surviving
Spouse. If less than 100 percent is selected, then the remaining portion
of the account balance shall be paid to the Participant's Beneficiary.
To the extent less than 100 percent of the account balance is paid to
the Surviving Spouse, the amount of Employee Contributions allocated to
the Surviving Spouse will be in the same proportion as the Employee
Contributions bears to the total account balance of the Participant. The
Surviving Spouse may elect to have such Annuity distributed within a
reasonable period after the Participant's death.
9.4 DEFINITIONS. The following definitions shall apply to this Article IX.
(a) Election Period: The period which begins on the first day of the
Plan Year in which the Participant attains age 35 and ends on the
date of the Participant's death. If a Participant separates from
service prior to the first day of the Plan Year in which age 35 is
attained, with respect to the account balance as of the date of
separation, the election period shall begin on the date of
separation.
Pre-age 35 waiver: A Participant who will not yet attain age 35 as
of the end of any current Plan Year may make a special Qualified
Election to waive the Qualified Preretirement Survivor Annuity for
the period beginning on the date of such election and ending on the
first day of the Plan Year in which the Participant will attain age
35. Such election shall not be valid unless the Participant
receives a written explanation of the Qualified Preretirement
Survivor Annuity in such terms as are comparable to the explanation
required under section 9.5(a). Qualified Preretirement Survivor
coverage will be automatically reinstated as of the first day of
the Plan Year in which the Participant attains age 35. Any new
waiver on or after such date shall be subject to the full
requirements of this Article.
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(b) Earliest Retirement Age: The earliest date on which, under the
Plan, the Participant could elect to receive retirement benefits.
(c) Qualified Election: A waiver of a Qualified Joint and Survivor
Annuity or a Qualified Preretirement Survivor Annuity. Any waiver
of a Qualified joint and Survivor Annuity or a Qualified
Preretirement Survivor Annuity shall not be effective unless: (a)
the Participant's Spouse consents in writing to the 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
designations by the Participant without any further spousal
consent); (c) the Spouse's consent acknowledges the effect of the
election; and (d) the Spouse's consent is witnessed by a Plan
representative or notary public.
Additionally, a Participant's waiver of the Qualified Joint and
Survivor Annuity shall not be effective unless the election
designates a form of benefit payment which may not be changed
without spousal consent (or the Spouse expressly permits
designations by the Participant without any further spousal
consent). If it is established to the satisfaction of a Plan
representative that there is no Spouse or that the Spouse cannot be
located, a waiver will be deemed a Qualified Election.
Any consent by a Spouse obtained under this provision (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 Participant 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 a
specific form of benefit where applicable, and that the Spouse
voluntarily elects to relinquish either or both of such rights. A
revocation of a prior waiver may be made by a Participant without
the consent of the Spouse at any time before the commencement of
benefits. The number of revocations shall not be limited. No
consent obtained under this provision shall be valid unless the
Participant has received notice as provided in Section 9.5 below.
(d) Qualified Joint and Survivor Annuity: An immediate Annuity for the
life of the Participant with a survivor Annuity for the life of the
Spouse which is not less than 50 percent and not more than 100
percent of the amount of the Annuity which is payable during the
joint lives of the Participant and the Spouse and which is the
amount of benefit which can be purchased with the Participant's
Vested Account Balance. The percentage of the survivor annuity
under the Plan shall be 50 percent (unless a different percentage
is elected by the Employer in the Adoption Agreement).
(e) Spouse (Surviving Spouse): The Spouse or Surviving Spouse of the
Participant, provided that a former spouse will be treated as the
Spouse or Surviving Spouse to the extent provided under a qualified
domestic relations order as described in section 414(p) of the
Code.
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(f) Annuity Starting Date: The first day of the first period for which
an amount is paid as an Annuity or any other form.
(g) Vested Account Balance: The aggregate value of the Participant's
vested account balances derived from contributions made by both the
Participant and Employer, including the proceeds of insurance
contracts, if any, on the Participant's life and Rollover
Contributions. The provisions of this Article shall apply to a
Participant who is vested in amounts attributable contributions
made under this Plan at the time of death or distribution.
9.5 NOTICE REQUIREMENTS.
(a) In the case of a Qualified Joint and Survivor Annuity, the Plan
Administrator shall no less than 30 days and no more than 90 days
prior to the Annuity Starting Date provide each Participant with a
written explanation of: (i) the terms and conditions of a Qualified
Joint and Survivor Annuity; (ii) the Participant'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
Participant'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.
(b) In the case of a Qualified Preretirement Survivor Annuity, the Plan
Administrator shall provide each Participant within the applicable
period for such Participant a written explanation of the Qualified
Preretirement Survivor Annuity in such terms and in such manner as
would be comparable to the explanation provided for meeting the
requirements of Section 9.5(a) applicable to a Qualified Joint and
Survivor Annuity.
(c) The applicable period for a Participant is whichever of the
following periods ends last: (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
ending after the individual becomes a Participant; (iii) a
reasonable period ending after the Qualified joint and Survivor
Annuity is no longer fully subsidized; (iv) a reasonable period
ending after this Article first applies to the Participant.
Notwithstanding the foregoing, notice must be provided within a
reasonable period ending after separation from service before
attaining age 35.
For purposes of applying the preceding paragraph, a reasonable
period ending after the enumerated events described in (ii), (iii)
and (iv) 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 Participant who separates from service
before the Plan Year in which age 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
Participant thereafter returns to employment with the Employer, the
applicable period for such Participant shall be redetermined.
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(d) The Surviving Spouse may elect to have distribution of the vested
account balance commence within the 90-day period following the
date of the Participant's death. The account balance shall be
adjusted for gains or losses occurring after the Participant's
death in accordance with the provisions of the Plan governing the
adjustment of account balances for other types of distributions.
9.6 SAFE HARBOR RULES.
(a) This section shall apply to a Participant in a profit sharing plan,
and to any distribution, made on or after December 31, 1988, from
or under a separate account attributable solely to accumulated
deductible employee contributions, as defined in section
72(o)(5)(B) of the Code, and maintained on behalf of a Participant
in a money purchase pension plan (including a target benefit plan),
if the following conditions are met: (1) the Participant does not
or cannot elect payments in the form of a life annuity; and (2)
with respect to a Participant in a profit sharing plan, the plan is
not a direct or indirect transferee of a defined benefit plan,
money purchase pension, target benefit plan, or a stock bonus or
profit sharing plan which is subject to the survivor annuity
requirements of section 401(a)(11) and section 417 of the Code with
respect to that Participant.
(b) On the death of a Participant, the Participant's vested account
balance will be paid to the Participant's surviving spouse, but if
there is no SURVIVING spouse, or if the surviving spouse has
consented in a manner conforming to a Qualified Election, then to
the Participant's designated Beneficiary. The surviving spouse may
elect to have distribution of the vested account balance commence
within the 90-day period following the date of the Participant's
death. The account balance shall be adjusted for gains or losses
occurring after the Participant's death in accordance with the
provisions of the Plan governing the adjustment of account balances
for other types of distributions.
(c) The Participant may waive the spousal death benefit described in
this Section 9.6 at any time provided that no such waiver shall be
effective unless IT satisfies the conditions of Section 9.4(c)
(other than the notification requirement referred to therein) 'that
would apply to the Participant's waiver of the Qualified
Preretirement Survivor Annuity.
(d) If this Section 9.6 is operative, then the provisions of this
Article, other than Section 9.7, shall be inoperative.
(e) For purposes of this Section 9.6, vested account balance shall
mean, in the case of a money purchase pension plan or a target
benefit plan, the Participant's separate account balance
attributable solely to accumulated deductible employee
contributions within the meaning of section 72(o)(5)(B) of the
Code. In the case of a profit sharing plan, vested account balance
shall have the same meaning as provided in Section 9-4(g).
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9.7 TRANSITIONAL RULES.
(a) Any living Participant not receiving benefits on August 23, 1984,
who would otherwise not receive the benefits prescribed by the
previous sections of this Article must be given the opportunity to
elect to have the prior sections of this Article apply if such
Participant is 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 Participant had at least 10 years
of vesting service when he separated from Service.
(b) Any living Participant not receiving benefits on August 23, 1984,
who was credited with at least one Hour of Service under this Plan
or a predecessor plan on or after September 2, 1974, and who is not
otherwise credited with any Service in A Plan Year beginning on or
after January 1, 1976, must be given the opportunity to have his
benefits paid in accordance with Section 9.7(d).
(c) The respective opportunities to elect (as described in Sections
9.7(a) and 9.7(b) above) must be afforded to the appropriate
Participants during the period commencing on August 23, 1984, and
ending on the date benefits would otherwise commence to said
Participants.
(d) Any Participant who has elected pursuant to Section 9.7(b) of this
Article and any Participant who does not elect under Section 9.7(a)
or who meets the requirements of Section 9.7(a) except that such
Participant does not have at least 10 years of vesting service when
he separates from service, shall have his benefits distributed in
accordance with all of the following requirements if benefits would
have been payable in the form of a life Annuity:
(1) Automatic joint and Survivor Annuity. If benefits in the form
of a life Annuity become payable to a married Participant who:
(A) begins to receive payments under the Plan on or after
Normal Retirement Age; or
(B) dies on or after Normal Retirement Age while still working
for the Employer; or
(C) begins to receive payments on or after the qualified early
retirement age; or
(D) separates from Service on or after attaining Normal
Retirement Age (or the qualified early retirement age) and
after satisfying the eligibility requirements for the
payment of benefits under the Plan and thereafter dies
before beginning to receive such benefits;
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then such benefits will be received under this Plan in the form
of a Qualified Joint and Survivor Annuity, unless the
Participant has elected otherwise during the Election Period.
The Election Period must begin at least 6 months before the
Participant attains qualified early retirement age and end not
more than 90 days before the commencement of benefits. Any
election hereunder will be in writing and may be changed by the
Participant at any time.
(2) Election of early survivor annuity. A Participant who is
employed after attaining the qualified early retirement age
will be given the opportunity to elect, during the Election
Period, to have a survivor Annuity payable on death. If the
Participant elects the survivor Annuity, payments under such
Annuity must not be less than the payments which would have
been made to the Spouse under the Qualified Joint and Survivor
Annuity if the Participant had retired on the day before his or
her death. Any election under this provision will be in writing
and may be changed by the Participant at any time. The Election
Period begins on the later of (1) the 90th day before the
Participant attains the qualified early retirement age, or (2)
the date on which participation begins, and ends on the date
the Participant terminates employment.
(3) For purposes of this Section 9.7(d):
(A) Qualified early retirement age is the latest of:
(i) the earliest date, under the Plan, on which the
Participant may elect to receive retirement
benefits,
(ii) the first day of the 120th month beginning before
the Participant reaches Normal Retirement Age, or
(iii) the date the Participant begins participation.
(B) Qualified Joint and Survivor Annuity is an Annuity for the
life of the Participant with a survivor Annuity for the
life of the Spouse as described in Section 9.4(d).
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ARTICLE X
TERMINATION OF EMPLOYMENT
10.1 DISTRIBUTION. A Participant who terminates employment shall be entitled
to receive a distribution of his entire Vested Interest. Such
distribution shall be further subject to the terms and conditions of
Article DC.
(a) 1-Year Break-in-Service (Cash-Out Method).
The following section (a) shall apply in determining when the
non-vested portion of a Participant's Account becomes a Forfeiture,
unless the provisions of section (b) have been specified by the
Employer in its Adoption Agreement.
If at the time of his Termination of Employment the Participant is
not 100% vested and does not take a distribution from the portion
of his Vested Interest that is attributable to contributions made
by the Employer, the non-vested portion of his Participant's
Account shall be placed in a separate account and will become a
Forfeiture upon the date such terminated Participant incurs 5
consecutive 1-Year Breaks-in-Service.
However, if at the time of his Termination of Employment the
Participant is not 100% vested and does take a distribution from
the portion of his Vested Interest that is attributable to
contributions made by the Employer, or if the Participant is 0%
vested, the non-vested portion of his Participant's Account shall
be placed in a separate account and will become a Forfeiture upon
the date such terminated Participant incurs a 1-Year
Break-in-Service.
If a terminated Participant, whose separate account became a
Forfeiture in accordance with the terms of the preceding paragraph,
is later rehired by the Employer and re-enrolls in the Plan before
incurring 5 consecutive 1-Year Breaks-in-Service, then the amount
of the Forfeiture shall be restored by the Employer.
In addition, such rehired Participant shall be entitled to repay
the distribution that was made at his Termination of Employment
attributable to contributions made by the Employer. Such repayment
must be made before the Participant has incurred 5 consecutive
1-Year Breaks-in-Service following the date he received the
distribution or 5 years after the Participant is reemployed by the
Employer, whichever date is earlier.
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Until the time a reemployed Participant repays the distribution
made at his Termination of Employment in accordance with the
preceding terms of this Section, or if the Participant does not
repay such distribution or had not taken a distribution, the
Participant's vested or nonforfeitable portion of the separate
account established in accordance with this Section shall, at any
relevant time, be equal to an amount determined by the following
formula:
X = P[AB+(R x D)] - (R x D)
For the purposes of applying this formula:
P = The Participant's Vesting Percentage at the relevant time.
AB= The account balance at the relevant time.
R = The ratio of the account balance at the relevant time to the
account balance after the distribution.
D = The amount of the distribution.
(b) 5 Consecutive 1-Year Breaks-in-Service.
As of a Participant's Termination of Employment, he shall be
entitled to receive a distribution of his entire Vested Interest.
Such distribution shall be further subject to the terms and
conditions of Article IX.
If at the time of his Termination of Employment the Participant is
not 100% vested, the non-vested portion of his Participant's
Account shall be placed in a separate account and will become a
Forfeiture upon the date the terminated Participant incurs 5
consecutive 1-Year Breaks-in-Service.
If a terminated Participant is later rehired by the Employer and
re-enrolls in the Plan prior to incurring 5 consecutive 1-Year
Breaks-in-Service, his vested or nonforfeitable portion of this
separate account shall, at any relevant time, be equal to an amount
("X") determined by the following formula:
X = P [AB + (R x D)] - (R x D)
For the purposes of applying this formula:
P = The Participant's Vesting Percentage at the relevant time.
AB= The account balance at the relevant time.
R = The ratio of the account balance at the relevant time to the
account balance after the distribution.
D = The amount of the distribution.
10.2 LIFE INSURANCE POLICY. If all or any portion of the value of any Life
Insurance Policy on the Participant's life will become a Forfeiture, the
Participant shall have the right to buy such Policy from the Trustee for
the then value of such Policy less the value of any Vested Interest
therein, within 30 days after written notice from the Trustee is mailed
to his last known address.
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10.3 NO FURTHER RIGHTS OR INTEREST. A Participant shall have no further
interest in or any rights to any portion of his Participant's Account
that becomes a Forfeiture due to his Termination of Employment once the
Participant incurs 5 consecutive 1-Year Breaks-in-Service in accordance
with Section 2.4.
10.4 FORFEITURE. Any Forfeiture arising in accordance with the provisions of
Section 10.1 shall be treated as follows:
Any amount of Forfeitures shall be used in accordance with (a) or (b)
below, in the manner set forth in Article IV.
(a) Reallocation. Forfeitures shall be allocated in accordance with the
allocation formula of the Plan.
(b) Employer Credit. Forfeitures shall be used by the Employer to
reduce and in lieu of the Employer contribution next due under
Article IV, or to pay Plan expenses, at the earliest opportunity
after such Forfeiture becomes available.
Notwithstanding anything to the contrary, if Forfeitures are generated
upon the occurrence of a 1-Year Break-in- Service, and if a former
Participant returned to employment with the Employer after the
occurrence of a 1-Year Break-in-Service and prior to the occurrence of 5
consecutive 1-Year Breaks-in-Service Forfeitures, if any, will first be
used to make whole the nonvested account of the Participant, equal to
the value of the nonvested account at the time the Participant
terminated Service with the Employer. In the event that the available
Forfeitures are not sufficient to make whole the nonvested account, the
Employer will make an additional contribution sufficient to make the
nonvested account whole.
10.5 If a benefit is forfeited because the Participant or Beneficiary cannot
be found, such benefit will be reinstated if a claim is made by the
Participant or Beneficiary.
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ARTICLE la
WITHDRAWALS
11.1 WITHDRAWAL-EMPLOYEE CONTRIBUTIONS.
(a) Required Employee Contributions. If the Employer has elected in its
Adoption Agreement to allow for a withdrawal of Required Employee
Contributions and earnings thereon, then a Participant may elect to
withdraw from his Participant's Account an amount equal to a
percentage of Required Employee Contributions. On the date the
election becomes effective, the Participant shall be suspended from
making any further contributions to the Plan, and from having' any
Matching Contributions made on his behalf for a period, as elected
by the Employer in its Adoption Agreement.
(b) Voluntary Employee Contributions. If the Employer has elected in
ITS Adoption Agreement to allow for withdrawal of Voluntary
Employee Contributions and earnings thereon, then a Participant may
elect to withdraw from his Participant's Account an amount which is
equal to any whole percentage (not exceeding 100%) of the value of
that portion of his Participant's Account attributable to Voluntary
Employee Contributions and earnings thereon.
If a Participant elects a withdrawal under the provisions of this
section, he may not elect another withdrawal under this section for an
additional period specified by the Employer in its Adoption Agreement.
The Participant shall notify the Plan Administrator in writing of his
election to make a withdrawal under this Section. Any such election
shall be effective as of the date specified in such notice, which date
must be at least 15 days after notice is filed.
No Forfeitures will occur solely as A result of an Employee's withdrawal
of Employee Contributions.
11.2 WITHDRAWAL - ELECTIVE DEFERRAL CONTRIBUTIONS. If the Participant has
attained the age of 59-1/2, and if selected by the Employer in its
Adoption Agreement, the Participant may elect to withdraw from his
Participant's Account an amount which is equal to any whole percentage
(not exceeding 100%) of his Vested Interest in his Participant's Account
attributable to his Elective Deferral Contributions and earnings
thereon.
The Participant shall notify the Plan Administrator in writing of his
election to make a withdrawal under this Section. Any such election
shall be effective as of the date specified in such notice, which date
must be at least 15 days after notice is filed.
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11.3 WITHDRAWAL - EMPLOYER CONTRIBUTIONS. If the Employer has specified in
its Adoption Agreement that withdrawals of Matching Contributions and
Nonelective Contributions, if applicable, are permitted, a Participant
who has been an Active Participant for at least 60 consecutive months
may elect to withdraw from his Participant's Account an amount equal to
a whole percentage (not to exceed 100%) of his Vested Interest in his
Participant's Account attributable to Matching Contributions (and
Forfeitures, if applicable) and Nonelective Contributions, if applicable
along with earnings. On the date the election becomes effective, the
Participant shall be suspended from making Employee Contributions and
Elective Deferral Contributions, if any, and from having Employer
Contributions made on his behalf for a period of time, as selected by
the Employer in its Adoption Agreement. In lieu of the 60-month of
Participation requirement, the Employer may specify in the Adoption
Agreement that withdrawal of contributions made by the Employer, to the
extent vested, shall be available upon or following the attainment of
age 59-1/2.
In the event a Participant's suspension period occurs during a year (or
years) when no Employer contributions are made, such suspension shall be
taken into account when the next Employer contribution(s) is made.
The Participant shall notify the Plan Administrator in writing of his
election to make a withdrawal under this Section. Any such election
shall be effective as of the date specified in such notice, which date
must be at least 15 days after notice is filed.
11.4 WITHDRAWAL FOR SERIOUS FINANCIAL HARDSHIP OF CONTRIBUTIONS OTHER THAN
ELECTIVE DEFERRAL CONTRIBUTIONS. If the plan is a profit sharing plan or
a thrift plan, and if the Employer has elected in its Adoption Agreement
to permit withdrawals due to the occurrence of events that constitute
Serious Financial Hardships to a Participant, such Participant may
withdraw all or a portion of his Vested Interest (excluding Elective
Deferral Contributions, Qualified Nonelective Contributions, Qualified
Matching Contributions, and earnings). Such Serious Financial Hardship
must be shown by positive evidence submitted to the Plan Administrator
that the hardship is of sufficient magnitude to impair the Participant's
financial security. Withdrawals shall be determined in a consistent and
nondiscriminatory manner, and shall not affect the Participant's rights
under the Plan to make additional withdrawals or to continue to be an
Active Participant.
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11.5 WITHDRAWAL FOR SERIOUS FINANCIAL HARDSHIP OF ELECTIVE DEFERRAL
CONTRIBUTIONS. If the Employer has selected in its Adoption Agreement, a
distribution may be made on account of Serious Financial Hardship if
subparagraphs (a) and (b) of this section are satisfied. The funds
available for withdrawal shall be the portion of a Participant's Account
attributable to Elective Deferral Contributions, including pre-1989
earnings on such contributions, and if applicable, the remainder of the
vested portion of his Participant's Account excluding Qualified Matching
Contributions, Qualified Nonelective Contributions, and any earnings
attributable to Qualified Matching Contributions, and/or Qualified
Nonelective Contributions. Post-1988 earnings on Elective Deferral
Contributions shall also be excluded. For purposes of this section, a
distribution may be made on account of a hardship only if the
distribution both is made on account of an immediate and heavy financial
need of the employee and is necessary to satisfy the financial need.
(a) The following are the only financial needs considered immediate and
heavy for purposes of this section:
(i) Expenses for medical care described in section 213(d) of the
Code previously incurred by the Employee, the Employee's
spouse, or any dependents of the Employee (as defined in
section 152 of the Code) or necessary for these persons to
obtain medical care described in section 213(d) of the Code;
(ii) Payment of tuition and related educational fees for the next
12 months of post-secondary education for the Employee, his
or her spouse, children, or dependents (as defined in section
152 of the Code);
(iii) Costs directly related to the purchase of a principal
residence for the Employee (excluding mortgage payments); or
(iv) Payments necessary to prevent the eviction of the Employee
from the Employee's principal residence or foreclosure on the
mortgage on that residence.
(b) To the extent the amount of distribution requested does not exceed
the amount required to relieve the Participant's financial need,
such distribution will be considered as necessary to satisfy an
immediate and heavy financial need of the Participant only if:
(i) The Participant has obtained all distributions, other than
hardship distributions, and all nontaxable loans under all
plans maintained by the Employer;
(ii) All plans maintained by the Employer provide that the
Participant's Elective Deferral Contributions and if
applicable, Employee Contributions, will be suspended for 12
months after the receipt of the hardship distribution.
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(iii) All plans maintained by the Employer provide that the
Participant may not elect Elective Deferral Contributions for
the Participant'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 Participant's Elective
Deferral Contributions for the taxable year of the hardship
distribution.
11.6 WITHDRAWAL - IRP CONTRIBUTIONS and ROLLOVER CONTRIBUTIONS. If selected
by the Employer in its Adoption Agreement, a Participant may elect to
withdraw from his Participant's Account once during each Plan Year, any
amount up to 100% of the value of that portion of his Participant's
Account attributable to his IRP Contributions and/or Rollover
Contributions along with earnings.
The Participant shall notify the Plan Administrator in writing of his
election to make a withdrawal under this Section. Any such election
shall be effective as of the date specified in such notice, which date
must be at least 15 days after notice is filed.
11.7 NOTIFICATION. The Participant shall notify the Administrator in writing
of his election to make a withdrawal under Article M. Any such election
shall be effective as of the date specified in such notice, which date
must be at least 15 days after such notice is filed. Payment of the
withdrawal shall be subject to the terms and conditions of Article VIII.
All withdrawals made under the provisions of Article XI shall be subject
to the spousal consent requirements of Article DC, as applicable.
11.8 VESTING CONTINUATION. In the event a partially vested Participant takes
a withdrawal of less than 100% of his Vested Interest in accordance with
Section 11.3 or 11.4 or 11.5, the remaining portion of his Account
attributable to Employer contributions shall vest according to the
formula as set forth in Section 10.1.
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ARTICLE XII
LOANS
12.1 LOANS TO PARTICIPANTS. If the Employer has specified in its Adoption
Agreement that loans are permitted, then the Plan Administrator may make
a bona fide loan to a Participant, in an amount which, when added to the
outstanding balance of all other loans to the Participant from all
qualified plans of the Employer, does not exceed the lesser of $50,000
reduced by the excess of the Participant's highest outstanding loan
balance during the 12 months preceding the date on which the loan is
made over the outstanding loan balance on the date the new loan is made,
or 50% of the Participant's Vested Interest in his Participant's
Account. Notwithstanding any provision in this paragraph to the
contrary, loans may not exceed a Participant's Vested Interest
attributable to such contributions.
In the event of default, foreclosure on the note and attachment of
security will not occur until a distributable event occurs in the Plan.
No loans will be made to any shareholder-employee or Owner Employee. For
purposes of this requirement, a shareholder employee means an employee
or officer of an electing small business (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 5% of the outstanding stock of the corporation.
The loan shall be made under such terms, security interest, and
conditions as the Plan Administrator deems appropriate, provided,
however, that all loans granted hereunder:
(a) are available to all Participants and Beneficiaries, who are
parties-in-interest (as defined in ERISA), on a reasonably
equivalent basis; and
(b) are not made available to Highly Compensated Employees on a basis
greater than the basis made available to other Employees; and
(c) bear a reasonable rate of interest; and
(d) are adequately secured; and
(e) unless the provisions of Section 9.6 apply to a Participant, are
made only after a Participant obtains the consent of his spouse, if
any, to use his Participant's Account as security for the loan.
Spousal consent shall be obtained no earlier than the beginning of
the 90-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
Participant's Account is used for renegotiation, extension, renewal
or other revision of the loan; and
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(f) are made in accordance with and subject to all of the provisions of
this Article.
If a valid spousal consent has been obtained in accordance with (e),
then, notwithstanding any other provision of this Plan, the portion of
the Participant's vested account balance used as a security interest
held by the Plan by reason of a loan outstanding to the Participant
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 Participant'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.
12.2 LOAN PROCEDURES. The Plan Administrator shall establish a written set of
procedures, set forth in the summary plan description or any other
established set of procedures, which becomes a part of such Plan by
which all loans will be administered. Such rules, which are incorporated
herein by reference, will include, but not be limited to the following:
(a) the person or persons authorized to administer the loan program,
identified by name or position;
(b) the loan application procedure;
(c) the basis for approving or denying loans;
(d) any limits on the types of loans permitted;
(e) the procedure for determining a ""reasonable" interest rate;
(f) acceptable collateral;
(g) default conditions; and
(h) steps which will be taken to preserve plan assets in the event of
default.
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ARTICLE XIII
FIDUCIARY DUTIES AND RESPONSIBILITIES
13.1 GENERAL FIDUCIARY STANDARD OF CONDUCT. Each Fiduciary of the Plan shall
discharge his duties hereunder solely in the interest of the
Participants and their Beneficiaries and for the exclusive purpose of
providing benefits to Participants and their Beneficiaries and defraying
reasonable expenses of administering the Plan. Each Fiduciary shall act
with the care, skill, prudence and diligence under the circumstances
that a prudent man acting in a like capacity and familiar with such
matters would use in conducting an enterprise of like character and with
like aims, in accordance with the documents and instruments governing
this Plan, insofar as such documents and instruments are consistent with
this standard.
13.2 SERVICE IN MULTIPLE CAPACITIES. Any Person or group of Persons may serve
in more than one Fiduciary capacity with respect to this Plan,
specifically including service both as Trustee and Administrator.
13.3 LIMITATIONS ON FIDUCIARY LIABILITY. Nothing in this Plan shall be
construed to prevent any Fiduciary from receiving any benefit to which
he may be entitled as a Participant or Beneficiary in this Plan, so long
as the benefit is computed and paid on a basis which is consistent with
the terms of this Plan as applied to all other Participants and
Beneficiaries. Nor shall this Plan be interpreted to prevent any
Fiduciary from receiving any reasonable compensation for services
rendered, or for the reimbursement of expenses properly and actually
incurred in the performance of his duties with the Plan; except that no
Person so serving who already receives full-time pay from an Employer
shall receive compensation from this Plan, except for reimbursement of
expenses properly and actually incurred.
13.4 INVESTMENT MANAGER. If an Investment Manager has been appointed pursuant
to Section 14.7 of this Plan, he is required to acknowledge in writing
that he has undertaken a Fiduciary responsibility with respect to the
Plan. The Insurance Company's liability as a Fiduciary is limited to
that arising from its management of any assets of the Plan held by the
Insurance Company in its Separate Account.
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ARTICLE NW
THE PLAN ADMINISTRATOR
14.1 DESIGNATION AND ACCEPTANCE. The Employer shall designate a Person or
Persons to serve as Plan Administrator under the Plan and such Person,
by joining in the execution of the Adoption Agreement, accepts such
appointment and agrees to act in accordance with the terms of the Plan.
14.2 DUTIES AND RESPONSIBILITY. The Plan Administrator shall administer the
Plan for the exclusive benefit of the Participants and their
Beneficiaries in a nondiscriminatory manner subject to the specific
terms of the Plan. The Plan Administrator shall perform all such duties
as are necessary to operate, administer, and manage the Plan in
accordance with the terms thereof This shall include notification to the
Insurance Company of any adjustment made to a Participant's Account as a
result of excess amounts as defined in Section 5.5 (f).
The Plan Administrator shall comply with the regulatory provisions of
ERISA and shall furnish to each Participant (a) a summary plan
description, (b) upon written request, a statement of his total benefits
accrued and his vested benefits if any and (c) the information necessary
to elect the benefits available under the Plan. The Plan Administrator
shall also file the appropriate annual reports and any other data which
may be required by appropriate regulatory agencies.
Furthermore, the Plan Administrator shall take the necessary steps to
notify the appropriate interested parties whenever an application is
made to the Secretary of the Treasury for a determination letter in
accordance with Code section 7476 as amended.
14.3 EXPENSES AND COMPENSATION. The expenses necessary to administer the Plan
shall be taken from Participants' Accounts unless paid by the Employer,
including but not limited to those involved in retaining necessary
professional assistance from an attorney, an accountant, an actuary, or
an investment advisor. Nothing shall prevent the Plan Administrator from
receiving reasonable compensation for services rendered in administering
this Plan, provided the Plan Administrator is not a full-time Employee
of any Employer adopting this Plan.
14.4 INFORMATION FROM EMPLOYER. To enable the Plan Administrator to perform
his functions, the Employer shall supply full and timely information to
the Administrator on all matters relating to this Plan as the Plan
Administrator may require.
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14.5 ADMINISTRATIVE COMMITTEE; MULTIPLE SIGNATURES. In the event that more
than one Person has been duly nominated to serve on the Administrative
Committee and has signified in writing the acceptance of such
designation, the signature(s) of one or more Persons may be accepted by
an interested parry as conclusive evidence that the Administrative
Committee has duly authorized the action therein set forth and as
representing the will of and binding upon the whole Administrative
Committee. No Person receiving such documents or written instructions
and acting in good faith and in reliance thereon shall be obliged to
ascertain the validity of such action under the terms of this Plan. The
Administrative Committee shall act by a majority of its members at the
time in office and such action may be taken either by a vote at a
meeting or in writing without a meeting.
14.6 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. The Plan
Administrator, or any member of the Administrative Committee, may resign
at any time by delivering to the Employer a written notice of
resignation, to take effect at a date specified therein, which shall not
be less than 30 days after the delivery thereof, unless such notice
shall be waived.
The Plan Administrator may be removed with or without cause by the
Employer by delivery of written notice of removal, to take effect at a
date specified therein, which shall be not less than thirty (30) days
after delivery thereof, unless such notice shall be waived.
The Employer, upon receipt of or giving notice of the resignation or
removal of the Plan Administrator, shall promptly designate a successor
Plan Administrator who must signify acceptance of this position in
writing. In the event no successor is appointed, the Board of Directors
of the Employer will function as the Administrative Committee until a
new Plan Administrator has been appointed and has accepted such
appointment.
14.7 INVESTMENT MANAGER. The Plan Administrator may appoint, in writing, an
Investment Manager or Managers to whom is delegated the authority to
manage, acquire, invest or dispose of all or any part of the Plan, or
Trust assets. With regard to the assets entrusted to his care, the
Investment Manager shall provide written instructions and directions to
the Employer or Trustee, as applicable, who shall in turn be entitled to
rely upon such written direction. This appointment and delegation shall
be evidenced by a signed written agreement.
14.8 DELEGATION OF DUTIES. The Plan Administrator shall have the power, to
the extent permitted by law, to delegate the performance of such
Fiduciary and non-Fiduciary duties, responsibilities and functions as
the Administrator shall deem advisable for the proper management and
administration of the Plan in the best interests of the Participants and
their Beneficiaries.
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ARTICLE XV
PARTICIPANTS' RIGHTS
15.1 GENERAL RIGHTS OF PARTICIPANTS AND BENEFICIARIES. The Plan is
established and the Plan or Trust assets are held for the exclusive
purpose of providing benefits for such Employees and their Beneficiaries
as have qualified to participate under the terms of the Plan.
15.2 FILING A CLAIM FOR BENEFITS. A Participant or Beneficiary or the
Employer acting in his behalf, shall notify the Administrator of a claim
of benefits under the Plan. Such request shall be in writing to the
Administrator and shall set forth the basis of such claim and shall
authorize the Administrator to conduct such examinations as may be
necessary to determine the validity of the claim and to take such steps
as may be necessary to facilitate the payment of any benefits to which
the Participant or Beneficiary may be entitled under the terms of the
Plan.
15.3 DENIAL OF CLAIM. Whenever a claim for benefits by any Participant or
Beneficiary has been denied by a Plan Administrator, a written notice,
prepared in a manner calculated to be understood by the Participant,
must be provided, setting forth (1) the specific reasons for the denial;
(2) the specific reference to pertinent Plan provisions on which the
denial is based; (3) a description of any additional material or
information necessary for the claimant to perfect the claim and an
explanation of why such material or information is necessary; and (4)
an explanation of the Plan's claim -review procedure.
15.4 REMEDIES AVAILABLE TO PARTICIPANTS. A Participant or Beneficiary (1) may
request a review by a Named Fiduciary, other than the Plan
Administrator, upon written application to the Plan; (2) may review
pertinent Plan documents; and (3) may submit issues and comments in
writing to a Named Fiduciary. A Participant or Beneficiary shall have 60
days after receipt by the claimant of written notification of a denial
of a claim to request a review of a denied claim.
A decision by a Named Fiduciary shall be made promptly and not later
than 60 days after the Named Fiduciary's receipt of a request for
review, unless special circumstances require an extension of the time
for processing in which case a decision shall be rendered as soon as
possible, but not later than 120 days after receipt of a request for
review. The decision on review by a Named Fiduciary shall be in writing
and shall include specific reasons for the decision, written in a manner
calculated to be understood by the claimant, and specific references to
the pertinent Plan provisions on which the decision is based.
A Participant or Beneficiary shall be entitled, either in his own name
or in conjunction with any other interested parties, to bring such
actions in law or equity or to undertake such administrative actions or
to seek such relief as may be necessary or appropriate to compel the
disclosure of any required information, to enforce or protect his
rights, to recover present benefits due to him or to clarify his rights
to future benefits under the Plan.
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15.5 LIMITATION OF RIGHTS. Participation hereunder shall not grant any
Participant the right to be retained in the Service of the Employer or
any other rights or interest in the Plan or Trust fund other than those
specifically herein set forth.
15.6 PARTICIPANT CONTRIBUTIONS. Each Participant, regardless of his length of
Service with the Employer, shall be fully vested (100%) at all times in
any portion of his Participant's Account attributable to the following
contributions, as applicable:
(a) Employee Contributions and earnings thereon;
(b) Rollover Contributions and earnings thereon;
(c) IRP Contributions and earnings thereon.
15.7 MERGERS OR TRANSFERS. In the case of any merger with or transfer of
assets or liabilities to any other qualified plan after September 2,
1974, the following conditions must be met:
(a) The sum of the account balances in each plan shall equal the fair
market value (determined as of the date of the merger or transfer
as if the plan had then terminated) of the entire plan assets.
(b) The assets of each plan shall be combined to form the assets of the
plan as merged (or transferred) and each Participant in the plan
merged (or transferred) shall have an Account balance equal to the
sum of the Account balances the Participant had in the plans
immediately prior to the merger (or transfer).
(c) Immediately after the merger (or transfer), each Participant in the
plan merged (or transferred) shall have an Account balance equal to
the sum of the Account balances the Participant had in the plans
immediately prior to the merger (or transfer).
(d) Immediately after the merger (or transfer) each Participant in the
plan merged (or transferred) shall be entitled to the same optional
benefit forms as they were entitled to immediately prior to the
merger (or transfer).
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ARTICLE XVI
THE INSURANCE COMPANY
16.1 DUTIES A-ND RESPONSIBILITIES. The Insurance Company shall issue the
Annuity Contract and any Policies hereunder and thereby assumes all the
duties and responsibilities set forth therein. The terms of the Annuity
Contract may be changed as provided therein without amending this Plan,
provided such changes shall conform (1) to the requirements for
qualification under Code section 401(a), as amended from time to time
and (2) to ERISA, as amended from time to time.
16.2 RELATION TO EMPLOYER, PLAN ADMINISTRATOR AND PARTICIPANTS. The Insurance
Company may receive the statement of the Plan Administrator or, if the
Plan Administrator so designates, the Employer or the Trustee, as
conclusive evidence of any of the matters decided in the Plan and the
Insurance Company shall be fully protected in taking or permitting any
action on the basis thereof and shall incur no liability or
responsibility for so doing. The Insurance Company shall not be required
to look into the terms of the Plan as to question any action by the
Employer or the Plan Administrator or any Participant nor to determine
that such action is properly taken under the Plan. The Insurance Company
shall be fully discharged from any and all liability with respect to any
payment to any Participant hereunder in accordance with the terms of the
Annuity Contract or of any Policies under the Plan. The Insurance
Company shall not be required to take any action contrary to its normal
rules and practices.
16.3 RELATION TO TRUSTEE. The Insurance Company shall not be required to look
into the terms of the Plan or question any action of the Trustee and the
Insurance Company shall not be responsible for seeing that any action of
the Trustee is authorized by the terms hereof. The Insurance Company
shall be under no obligation to take notice of any change in Trustee
until evidence of such change satisfactory to the Insurance Company
shall have been given to the Insurance Company in writing at its home
office.
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ARTICLE XVII
AMENDMENT OR TERMINATION OF THE PLAN
17.1 AMENDMENT OF ELECTIONS UNDER ADOPTION AGREEMEN BY EMPLOYER. The Employer
shall have the right from time to time to change the elections under its
Adoption Agreement in a manner consistent with the Plan, by a written
instrument signed by the Employer, the Plan Administrator and the
Trustee and accepted by the Sponsor. Upon any such change in the
Elections under the Adoption Agreement the Plan Administrator, the
Trustee and the Sponsor shall be furnished a copy thereof If the Plan's
vesting schedule is amended, or the Plan is amended in any way that
directly or indirectly affects the computation of the Participant's
nonforfeitable percentage or if the Plan is deemed amended by an
automatic change to or from a top-heavy vesting schedule, each
Participant with at least 3 years of service with the employer may
elect, in writing, within a reasonable period after the adoption of the
amendment or change, to have the nonforfeitable percentage computed
under the Plan without regard to such amendment or change. For
Participants who do not have at least I hour of service in any Plan Year
beginning after December 31, 1988, the preceding sentence shall be
applied by substituting.... 5 years of service" for.... 3 years of
service" where such language appears.
The period during which the election must be made by the Participant
shall begin -no later than the date the Plan amendment is adopted and
end no later than after the latest of the following dates:
(a) The date which is 60 days after the day the amendment is adopted;
(b) The date which is 60 days after the day the amendment becomes
effective;
(c) The date which is 60 days after the day the Participant is issued
written notice of the amendment by the Employer or Plan
Administrator.
Such written election by a Participant shall be made to the
Administrator, who shall then give written notice to the Insurance
Company.
No amendment to the Plan shall be effective to the extent that it has
the effect of decreasing a Participant's Accrued Benefit.
Notwithstanding the preceding sentence, a Participant'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 Participant's 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 a plan is amended, in
the case of an Employee who is a Participant 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.
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An adopting Employer may amend the Plan by adding overriding plan
language to the adoption agreement where such language is necessary to
satisfy Code section 415 or 416 because of the required aggregation of
multiple plans under these sections. An adopting Employer may amend the
Plan by adding language to allow the Plan to operate under a waiver of
the minimum funding requirements.
17.2 AMENDMENT OF PLAN, TRUST, AND FORM OF ADOPTION AGREEMENT. The Sponsor
may amend this Plan and Trust, and the form of the Adoption Agreement,
and the Employer in adopting this Plan and the Plan Administrator and
the Trustee in accepting appointment as Plan Administrator and as
Trustee, shall be deemed to have consented to any such amendment by
executing the Adoption Agreement, provided that the written consent of
the Trustee and the Plan Administrator to any change affecting their
duties or responsibilities shall first be obtained. Upon any such
amendment by the Sponsor, the Plan Administrator, the Employer and the
Trustee shall be furnished with a copy thereof.
The Employer may (1) change the choice of options in the Adoption
Agreement, (2) add overriding language in the Adoption Agreement when
such language is necessary to satisfy section 415 or section 416 of the
Code because of the required aggregation of multiple plans, and (3) add
certain model amendments published by the Internal Revenue Service which
specifically provide that their adoption will not cause the Plan to be
treated as individually designed. An Employer that amends the Plan for
any other reason, including a waiver of the minimum funding requirements
under section 412(d) of the Code, will no longer participate in this
prototype plan and will be considered to have an individually designed
plan.
17.3 CONDITIONS OF AMENDMENT. Neither the sponsor nor the Employer shall make
any amendment which would cause the Plan to lose its status as a
qualified plan within the meaning of section 401(a) of the Code.
17.4 TERMINATION OF THE PLAN. The Employer intends to continue the Plan
indefinitely for the benefit of its Employees, but reserves the right to
terminate the Plan at any time by resolution of its Board of Directors.
Upon such termination, the liability of the Employer to make Employer
contributions hereunder shall terminate. The Plan shall terminate
automatically upon complete discontinuance of Employer contributions
hereunder, if the Plan is a Profit Sharing Plan or a Thrift Plan.
17.5 FULL VESTING. Upon the termination or partial termination of the Plan,
or upon complete discontinuance of Employer contributions, the rights of
all affected Participants in and to the amounts credited to each such
Participant's Account and to any Policies on each Participant's life
shall be 100% vested and nonforfeitable. Thereupon, each Participant
shall receive a total distribution of his Participant's Account
(including any amounts in the Forfeiture Account allocated in accordance
with Section 17.6) in accordance with the terms and conditions of
Article VIII. If the Plan terminates, the assets will be distributed
from the Trust as soon as administratively feasible.
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17.6 APPLICATION OF FORFEITURES. Upon the termination of the Plan, any amount
in the Forfeiture Account which has not been applied as of such
termination to reduce the Employer contribution or has not been
allocated as of such termination shall be credited on a pro-rata basis
to each Participant's Account of the then Active Participants in the
same manner as the last Employer contribution made under the Plan.
17.7 APPROVAL BY THE INTERNAL REVENUE SERVICE. Notwithstanding any other
provisions of this Plan, the Employer's adoption of this Plan is subject
to the condition precedent that the Employer's Plan shall be approved
and qualified by the Internal Revenue Service as meeting the
requirements of Code section 401 (a) and, if applicable, that the Trust
established hereunder shall be entitled to exemption under the
provisions of Code section 501 (a). In the event the Plan initially
fails to qualify and the Internal Revenue Service issues a final ruling
that the Employer's Plan or Trust fails to so qualify as of the
Effective Date, all liability of the Employer to make further Employer
contributions hereunder shall cease. The Insurance Company, Plan
Administrator, Trustee and any other Named Fiduciary shall be notified
immediately by the Employer, in writing, of such failure to qualify.
Upon such notification, the value of the Participants' Accounts and the
then value of any Life Insurance Policies shall be distributed in cash
subject to the terms and conditions of Article VII. That portion of such
distribution which is attributable to Participant's Employee
Contributions, if any, shall be paid to the Participant, and the balance
of such distribution shall be paid to the Employer. Upon the death of
any Participant prior to the actual surrender of a Life Insurance Policy
or Policies on his life, the death benefit shall be payable to the
Participant's Beneficiary.
If the Employer's Plan fails to attain or retain qualification, such
Plan will no longer participate in this prototype plan and will be
considered an individually designed plan.
17.8 SUBSEQUENT UNFAVORABLE DETERMINATION. If the Employer is notified
subsequent to initial favorable qualification that the Plan is no longer
qualified within the meaning of Code section 401(a) or, if applicable,
that the Trust is no longer entitled to exemption under the provisions
of Code section 501(a), and if the Employer shall fail within a
reasonable time to make any necessary changes in order that the Plan
shall so qualify, the Participants' Accounts and any Life Insurance
Policies or the values thereof shall be fully vested and nonforfeitable
and shall be disposed of in the manner set forth in Sections 17.5 and
17.6 above.
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ARTICLE XVIII
SUBSTITUTION OF PLANS
18.1 SUBSTITUTION OF PLANS. Subject to the provisions of Section 15.7 the
Employer may substitute an individually designed plan or a master or
another prototype plan for this Plan without terminating this Plan as
embodied herein and this shall be deemed to constitute an amendment and
restatement in its entirety of this Plan as heretofore adopted by the
Employer; provided, however that the Employer shall have certified to
the Insurance Company and the Trustee, if applicable, that this Plan is
being continued on a restated basis which meets the requirements of
Internal Revenue Code section 401(a) and ERISA.
Any such changes shall be subject to the provisions of Sections 17.1 and
17.2 of the Plan.
18.2 TRANSFER OF ASSETS. Upon 90 days' written notification from the Employer
and the Trustee (unless the Insurance Company shall accept a shorter
period of notification) that a different plan meeting the requirements
set forth in Section 18.1 above has been executed and entered into by
the Administrator and the Employer, and after the Insurance Company and
the Trustee have been furnished the Employer's certification in writing
that the Employer intends to continue the Plan as a qualified plan under
Internal Revenue Code section 401(a) and ERISA, the Insurance Company
shall transfer the value of all Participants' Accounts under the Annuity
Contract in accordance with the terms of the Annuity Contract, to the
Trustee or such person or persons as may be entitled to receive the
same, and the Trustee shall likewise make a similar transfer, including
all Life Insurance Policies, or the values thereof, to such person or
persons as may be entitled to receive same. The Insurance Company and
the Trustee may rely fully on the representations or directions of the
Employer with respect to any such transfer and shall be fully protected
and discharged with respect to any such transfer made in accordance with
such representations, instructions, or directions.
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ARTICLE
MISCELLANEOUS
19.1 NONREVERSION. This Plan has been adopted by the Employer for the
exclusive benefit of the Participants and their Beneficiaries. Except as
other-wise provided in Section 17.7 and Section 19.9, under no
circumstances shall any funds contributed hereunder at any time revert
to or be used by the Employer, nor shall any such funds or assets of any
kind be used other than for the benefit of the Participants or their
Beneficiaries.
19.2 GENDER AND NUMBER. When necessary to the meaning hereof, and except when
other-wise indicated by the context, either the masculine or the neuter
pronoun shall be deemed to include the masculine, the feminine, and the
neuter, and the singular shall be deemed to include the plural.
19.3 REFERENCE TO THE INTERNAL REVENUE CODE AND ERISA. Any reference herein
to any section of the Internal Revenue Code, ERISA, or to any other
statute or law shall be deemed to include any successor law of similar
import.
19.4 GOVERNING ]LAW. The Plan and Trust, if applicable, shall be governed and
construed in accordance with the laws of the state where the Employer or
Trustee has its principal office.
19.5 COMPLIANCE WITH THE INTERNAL REVENUE CODE AND ERISA. This Plan is
intended to comply with all requirements for qualification under the
Internal Revenue Code and ERISA, -and if any provision hereof is subject
to more than one interpretation or any term used herein is subject to
more than one construction, such ambiguity shall be resolved in favor of
that interpretation or construction which is consistent with the Plan
being so qualified. If any provision of the Plan is held invalid or
unenforceable, such invalidity or unenforceability shall not affect any
other provisions, and this Plan shall be construed and enforced as if
such provision had not been included.
19.6 NON-ALIENATION. It is a condition of the Plan, and all rights of each
Participant shall be subject thereto, that no right or interest of any
Participant in the Plan shall be assignable or transferable in whole or
in part, either directly or by operation of law or otherwise, including,
but without limitation, execution, levy, garnishment, attachment,
pledge, bankruptcy or in any other manner, and no right or interest of
any Participant in the Plan shall be liable for or subject to any
obligation or liability of such Participant. The preceding sentence
shall also apply to t he creation, assignment, or recognition of a right
to any benefit payable with respect to a Participant pursuant to a
domestic relations order, unless such order is determined to be
qualified domestic relations order, as defined in Code section 414(p). A
domestic relations order entered before January 1, 1985, will be treated
as a qualified domestic relations order if payment of benefits pursuant
to the order has commenced as of such date, and may be treated as a
qualified domestic relations order if payment of benefits has not
commenced as of such date, even though the order does not satisfy the
requirements of Code section 414(p).
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19.7 SUBSTITUTION FOR PRE-EXISTING MASTER OR PROTOTYPE PLAN. This Plan is
designed:
(a) For adoption by an Employer not previously covered under a master
or prototype plan sponsored by Connecticut General Life Insurance
Company; or
(b) For adoption by an Employer in substitution for a pre-existing
master or prototype plan sponsored by Connecticut General Life
Insurance Company.
If this Plan is adopted in substitution for such a pre-existing master
or prototype plan, it shall be deemed to amend the Employer's prior plan
in its entirety effective as of the date specified in the Employer's
Adoption Agreement. The Employer's plan as so amended shall continue in
full force and effect and no termination thereof shall be deemed to have
occurred.
19.8 The Trustee shall apply for and will be the owner of any Life Insurance
Policy purchased under the terms of this Plan. The Life Insurance
Policy(ies) must provide that proceeds will be payable to the Trustee.
However, the Trustee shall be required to pay over all proceeds of the
Life Insurance Policy(ies) to the Participant's designated beneficiary
in accordance with the distribution provisions of this Plan. A
Participant's spouse will be the designated Beneficiary of the proceeds
in all circumstances unless a qualified election has been made in
accordance with Section 9.4(c), joint and Survivor Annuity Requirements.
Under no circumstances shall the Trust retain any part of the proceeds.
In the event of any conflict between the provisions of this Plan and any
Life Insurance Policies or annuity contracts issued pursuant to the
Plan, the Plan provisions shall control.
19.9 CONTRIBUTION RECAPTURE. Notwithstanding any other provisions of this
Plan, (1) in the case of a contribution which is made by an Employer by
a mistake of fact, Section 19.1 shall not prohibit the return of such
contribution to the Employer within one year after the payment of the
contribution, and (2) if a contribution is conditioned upon the
deductibility of the contribution under Code section 404, then, to the
extent the deduction is disallowed, Section 19.1 shall not prohibit the
return to the Employer of such contribution (to the extent disallowed)
within one year after the disallowance of the deduction. The amount
which may be returned to the Employer is the excess of (1) the amount
contributed over (2) the amount that would have been contributed had
there not occurred a mistake of fact or a mistake in determining the
deduction. Earnings attributable to the excess contribution may not be
returned to the Employer, but losses attributable thereto must reduce
the amount to be so returned. Furthermore, if the withdrawal of the
amount attributable to the mistaken contribution would cause the balance
of the individual account of any Participant to be reduced to less than
the balance which would have been in the account had the mistaken amount
not been contributed, then the amount to be returned to the Employer
would have to be limited so as to avoid such reduction.
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In the event that the Commissioner of the Internal Revenue determines
that the Plan is not initially qualified under the Internal Revenue
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 is 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 XX
TOP-HEAVY PROVISIONS
20.1 DEFINITIONS.
(a) Key Employee: Any Employee or former Employee (and the
Beneficiaries of such Employee) who at any time during the
determination period was:
(1) an officer of the Employer if such individual's annual
compensation exceeds 50 percent of the dollar limitation
under Code section 415(b)(1) (A),
(2) an owner (or considered an owner under Code section 318) of
one of the ten largest interests in the Employer if such
individual's compensation exceeds 100 percent of the dollar
limitation under section 415(c)(1) (A) of the Code,
(3) a 5-percent owner of the Employer, or
(4) a 1-percent owner of the Employer who has an annual
compensation of more than $150,000.
Annual Compensation means Compensation as defined in section
415(c)(3) of the Code, but including amounts contributed by the
Employer pursuant to a salary reduction agreement which are
excludible from the Employee's gross income under section 125,
section 402(a)(8), section 402(h) or section 403(b) of the Code.
The determination period is the Plan Year containing the
determination date and the four preceding Plan Years. The
determination of who is a Key Employee will be made in accordance
with Code section 416(i)(1) and the regulations thereunder.
(b) Top-Heavy Plan: For any Plan Year beginning after December 31,
1983, this Plan is Top-Heavy if any of the following conditions
exists:
(1) If the Top-Heavy Ratio for this Plan exceeds 60 percent and
this Plan is not part of any required aggregation group or
permissive aggregation group of plans.
(2) If this Plan is a part of a required aggregation group of
plans but not part of a permissive aggregation group and the
Top-Heavy Ratio for the group of plans exceeds 60 percent.
(3) If this Plan is a part of a required aggregation group and
part of a permissive aggregation group of plans and the
Top-Heavy Ratio for the permissive aggregation group exceeds
60 percent.
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(c) Top-Heavy Ratio:
(1) If the Employer maintains one or more defined contribution
plans (including any Simplified Employee Pension Plan) and
the Employer has not maintained any defined benefit plan
which during the 5-year period ending on the determination
date(s) has or has had accrued benefits, the Top-Heavy Ratio
for this Plan alone or for the required or permissive
aggregation group as appropriate is a fraction, the numerator
of which is the sum of the account balances of ALL Key
Employees as of the determination date(s) (including any part
of any account balance distributed in the 5-year period
ending on the determination date(s)), and the denominator of
which is the sum of all account balances (including any part
of any account balance distributed in the 5-year period
ending on the determination date(s)), both computed in
accordance with Code section 416 and the regulations
thereunder. Both the numerator and denominator of the
Top-Heavy Ratio are increased to reflect any contribution not
actually made as of the determination date, but which is
required to be taken into account on that date under Code
section 416 and the regulations thereunder.
(2) If the Employer--maintains one or more defined contribution
plans (including any Simplified Employee Pension Plan) and
the Employer maintains or has maintained one or more defined
benefit plans which during the 5-year period ending on the
determination date(s) has or has had any accrued benefits,
the Top-Heavy Ratio for any required or permissive
aggregation group as appropriate is a fraction, the numerator
of which is the sum of account balances under the aggregated
defined contribution plan or plans for all Key Employees,
determined in accordance with (1) above, and the present
value of accrued benefits under the aggregated defined
benefit plan or plans for all Key Employees as of the
determination date(s), and the denominator of which is the
sum of the account balances under the aggregated defined
contribution plan or plans for all Participants, determined
in accordance with (1) above, and the present value of
accrued benefits under the defined benefit plan or plans for
all Participants as of the determination date(s), all
determined in accordance with Code section 416 and the
regulations thereunder. The accrued benefits under a defined
benefit plan in both the numerator and denominator of the
Top-Heavy Ratio are increased for any distribution of an
accrued benefit made in the 5-year period ending on the
determination date.
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(3) For purposes of (1) and (2) 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 12-month period ending on the
determination date, except as provided in Code section 416
and the regulations thereunder for the first and second plan
years of a defined benefit plan. The account balances and
accrued benefits of a Participant (i) who is not a Key
Employee but who was a Key Employee in a prior year, or (ii)
who has not been credited with at least one Hour of Service
with any Employer maintaining the Plan at any time during the
5-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 made in accordance with Code
section 416 and the regulations thereunder. Deductible
employee contributions will not be taken into account for
purposes of computing the Top-Heavy Ratio. 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
Participant other than a Key Employee shall be determined
under (a) the method, if any, that uniformly applies for
accrual purposes under all defined benefit plans maintained
by the Employer, or (b) if there is no such method, as if
such benefit accrued not more rapidly than the slowest
accrual rate permitted under the fractional rule of section
411(b)(1)(C) of the Code.
(d) Permissive aggregation group: The required aggregation group of
plans plus any other plan or plans of the Employer which, when
considered as a group with the required aggregation group, would
continue to satisfy the requirements of Code sections 401 (a) (4)
and 410.
(e) Required aggregation group: (1) Each qualified plan of the employer
in which at least one Key Employee participates or participated at
any time during the determination period (regardless of whether the
plan has terminated), and (2) any other qualified plan of the
Employer which enables a plan described in (1) to meet the
requirements of Code sections 401(a)(4) or 410.
(f) Determination date: 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, the last day of that year.
(g) Valuation date: The date specified in Section 6.3 as of which
account balances or accrued benefit are valued for purposes of
calculating the Top-Heavy Ratio.
(h) Present Value: Present Value shall be based only on the interest
and mortality rates specified in the Adoption Agreement.
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20.2 MINIMUM ALLOCATION. For any Plan Year in which the Plan is Top-Heavy,
the following will apply:
(a) Except as otherwise provided in (c) and (d) below, the Employer
contributions and Forfeitures allocated on behalf of any
Participant who is not a Key Employee shall not be less than the
lesser of three percent of such Participant's compensation or in
the case where the employer has no defined benefit plan which
designates this Plan to satisfy Code section 401, the largest
percentage of employer contributions and forfeitures, as a
percentage of the first $200,000 of the Key Employee's
Compensation, 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 Participant would not
otherwise be entitled to receive an allocation, or would have
received a lesser allocation of the year because of (1) the
Participant's failure to complete 1,000 Hours of Service (or any
equivalent provided in the Plan), or (2) the Participant's failure
to make mandatory employee contributions to the plan, or (3)
Compensation less than a stated amount.
(b) For purposes of computing the minimum allocation, Compensation
shall mean Compensation as defined in Section 5.8(b) of the Plan.
Notwithstanding the above, 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 sections 125, 401(a)(8), 402(h) or 403(b) of the
Code.
(c) The provision in (a) above shall not apply to any Participant who
was not employed by the Employer on the last day of the Plan Year.
(d) The provision in (a) above shall not apply to any Participant to
the extent the Participant is covered under any other plan or plans
of the Employer and the Employer has provided in the Top-Heavy
Provisions section of the Adoption Agreement that the minimum
allocation or benefit requirement applicable to Top-Heavy plans
will be met in the other plan or plans.
(e) The minimum allocation required (to the extent required to be
nonforfeitable under Code section 416(b)) may not be forfeited
under Code sections 411(a)(3)(B) or 411(a)(3)(D).
(f) Neither Elective Deferral Contributions nor Matching Contributions
may be taken into account for the purpose of satisfying the minimum
Top-Heavy contribution requirement.
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20.3 MINIMUM VESTING SCHEDULE. For any Plan Year in which this Plan is
Top-Heavy, one of the minimum vesting schedules as elected by the
Employer in the adoption agreement will automatically apply to the Plan.
The minimum vesting schedule applies to all benefits within the meaning
of Code section 411(a)(7) except those attributable to Employee
Contributions, including benefits accrued before the effective date of
Code section 416 and benefits accrued before the Plan became Top-Heavy.
Further, no decrease in a Participant's nonforfeitable percentage may
occur in the event the Plan's status as Top-Heavy changes for any Plan
Year. However, this section does not apply to the account balances of
any Employee who does not have an Hour of Service after the Plan has
initially become Top-Heavy and such Employee's account balance
attributable to Employer contributions and Forfeitures will be
determined without regard to this section.
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ARTICLE XXI
TRUST AGREEMENT
This AGREEMENT entered into by and among the Employer, the Administrator and
the Trustee pursuant to the Adoption Agreement completed and signed by the
Employer, the Administrator and Trustee, hereby establishes the Trust with the
following provisions to form a part of and implement the provisions of the
Plan:
21.1 CREATION AND ACCEPTANCE OF TRUST. The Trustee, by joining in the
execution of the Adoption Agreement, accepts the Trust hereby created
and agrees to act in accordance with the express terms and conditions
herein stated.
21.2 TRUSTEE CAPACITY; CO-TRUSTEES. The Trustee may be A Bank, Trust Company
or other corporation possessing TRUST powers under applicable State or
Federal law or one or more individuals or any combination thereof.
When two or more persons serve as Trustee, they are specifically
authorized, by a written agreement between themselves, to allocate
specific responsibilities, obligations or duties among themselves. An
original copy of such written agreement is to be delivered to the
Administrator.
21.3 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR TRUSTEE. Any Trustee
may resign at any time by delivering to the Administrator a written
notice of resignation, to take effect at a date specified therein, which
shall not be less than 30 days after the delivery thereof, unless such
notice shall be waived.
The Trustee may be removed with or without cause by the Board of
Directors by delivery of a written notice of removal, to take effect at
a date specified therein, which shall not be less than 30 days after
delivery thereof, unless such notice shall be waived.
In the case of the resignation or removal of a Trustee, the Trustee
shall have the right to a settlement of its account, which may be made,
at the option of the Trustee, either (1) by judicial settlement in an
action instituted by the Trustee in a court of competent jurisdiction,
or (2) by written agreement of settlement between the Trustee and the
Administrator.
Upon such settlement, all right, title and interest of such Trustee in
the assets of the Trust and all rights and privileges under this
Agreement theretofore vested in such Trustee shall vest in the successor
Trustee, and thereupon all future liability of such Trustee shall
terminate; provided, however, that the Trustee shall execute,
acknowledge and deliver all documents and written instruments which are
necessary to transfer and convey the right, title and interest in the
Trust assets, and all rights and privileges to the successor Trustee.
The Board of Directors, upon receipt of notice of the resignation or
removal of the Trustee, shall promptly designate a successor Trustee,
whose appointment is subject to acceptance of this Trust in writing and
shall notify in writing the Insurance Company of such successor Trustee.
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21.4 TAXIES, EXPENSES AND COMPENSATION OF TRUSTEE. The Trustee shall deduct
from and charge against the Trust fund any taxes paid by it which may be
imposed upon the Trust fund or the income thereof or which the Trustee
is required to pay with respect to the interest of any person therein.
The Employer shall pay the Trustee annually its expenses in
administering the Trust and a reasonable compensation for its service as
Trustee hereunder if the Trustee is not an Employee of the Plan, at a
rate to be agreed upon from time to time. The reasonable compensation
shall include that for any extraordinary services.
21.5 TRUSTEE ENTITLED TO CONSULTATION. The Trustee shall be entitled to
advice of counsel, which may be counsel for the Plan or the Employer, in
any case in which the Trustee shall deem such advice necessary. With the
exception of those powers and duties specifically allocated to the
Trustee by the express terms of this Plan, it shall not be the
responsibility of the Trustee to interpret the terms of the Plan or
Trust and the Trustee may request, and is entitled to receive guidance
and written direction from the Administrator on any point requiring
construction or interpretation of the Plan documents.
21.6 RIGHTS, POWERS AND DUTIES OF TRUSTEE. The Trustee shall have the
following rights, powers, and duties:
(a) The Trustee shall be responsible for the safekeeping and
administering of the assets of this Plan and Trust in accordance
with the provisions of this Agreement and any amendments thereto.
The duties of the Trustee under this Agreement shall be determined
solely by the express provisions of this Agreement and no other
further duties or responsibility shall be implied. Subject to the
terms of this Plan and Trust, the Trustee shall be fully protected
and shall incur no liability in acting in reliance upon the written
instructions or directions of the Administrator or a duly
designated Investment Manager or any other Named Fiduciary.
(b) The Trustee shall have all powers necessary or convenient for the
orderly and efficient performance of its duties hereunder,
including but not limited to those specified in this Section. The
Trustee may appoint one or more administrative agents or contract
for the performance of such administrative and service functions as
it may deem necessary for the effective installation and operation
of the Plan and Trust.
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(c) The Trustee shall have the power to collect and receive any and all
monies and other property due hereunder and to give full discharge
and acquittance therefor; to settle, compromise or submit to
arbitration any claims, debts or damages due or owing to or from
the Trust; to commence or defend suits or legal proceedings
wherever, in its judgment, any interest of the Trust requires it;
and to represent the Trust in all suits or legal proceedings in any
court of law or equity or before any other body of tribunal. It
shall have the power generally to do all acts, whether or not
expressly authorized, which the Trustee in the exercise of its
Fiduciary responsibility may deem necessary or desirable for the
protection of the Trust and the assets thereof.
(d) The Trustee shall make application to the Insurance Company for the
Annuity Contract required hereunder and shall take all necessary
steps to obtain any Life Insurance Policies elected on the lives of
Participants hereunder. In applying for the Annuity Contract, the
Trustee may indicate that, unless it directs the Insurance Company
otherwise, it shall be entitled to receive all cash payments for
further distribution to Participants and Beneficiaries.
(e) The Trustee may temporarily hold cash balances and shall be
entitled to deposit any such funds received in a bank account or
bank accounts in the name of the Trust in any bank or banks
selected by the Trustee, including the banking department of the
Trustee, pending disposition of such funds in accordance with the
Trust. Any such deposit may be made with or without interest.
(f) The Trustee shall obtain and deal with any Life Insurance Policies
or other assets of this Trust held or received under this Plan only
in accordance with the written directions from the Administrator.
The Trustee shall be under no duty to determine any facts or the
propriety of any action taken or omitted by it in good faith
pursuant to instructions from the Administrator.
(g) All Contributions made to the Trust fund under this Plan shall be
paid by the Trustee to the Insurance Company under the Annuity
Contract within 30 days after the date such Contributions were due
under the Plan. However, in lieu of holding any Contributions made
to the Trust fund, the Trustee may direct that all such
Contributions be made directly to the Insurance Company under the
Annuity Contract or any Life Insurance Policy. The Employer shall
keep the Trustee informed of all Contributions made directly to the
Insurance Company in accordance with the Trustee's instructions.
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(h) If the whole or any part of the Trust shall become liable for the
payment of any estate, inheritance, income or other tax which the
Trustee shall be required to pay, the Trustee shall have full power
and authority to pay such tax out of any monies or other property
in its hands for the account of the person whose interest hereunder
is so liable. Prior to making any payment, the Trustee may require
such releases or other documents from any lawful taxing authority
as it shall deem necessary. The Trustee shall not be liable for any
nonpayment of tax when it distributes an interest hereunder on
instructions from the Administrator.
(i) The Trustee shall keep a full, accurate and detailed record of all
transactions of the Trust which the Administrator shall have the
right to examine at any time during the Trustee's regular business
hours. Following the close of the fiscal year of the Trust, or as
soon as practical thereafter, the Trustee shall furnish the
Administrator with a statement of account. This account shall set
forth all receipts, disbursements and other transactions effected
by the Trustee during said year.
The Administrator shall promptly notify the Trustee in writing of
its approval or disapproval of the account. The Administrator's
failure to disapprove the account within 60 days after receipt
shall be considered an approval. The approval by the Administrator
shall be binding as to all matters embraced in any statement to the
same extent as if the account of the Trustee had been settled by
judgment or decree of a court of competent jurisdiction under which
the Trustee, Administrator, Employer and all persons having or
claiming any interest in the Trust were parties; provided, however,
that the Trustee may have its account judicially settled if it so
desires.
(j) If, of any time, there shall be a dispute as to the person to whom
payment or delivery of monies or property should be made by the
Trustee, or regarding any action to be taken by the Trustee, the
Trustee may postpone such payment, delivery or action, retaining
the funds or property involved, until such dispute shall have been
resolved in a court of competent jurisdiction or the Trustee shall
have been indemnified to its satisfaction or until it has received
written direction from the Administrator.
(k) Anything in this instrument to the contrary notwithstanding, it
shall be understood that the Trustee shall have no duty or
responsibility with respect to the determination of matters
pertaining to the eligibility of any Employee to become or remain a
Participant hereunder, the amount of benefit to which any
Participant or Beneficiary shall be entitled hereunder, all such
responsibilities being vested in the Administrator. The Trustee
shall have no duty to collect any Contribution from the Employer
and shall not be concerned with the amount of any Contribution nor
the application of the Contribution formula.
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<PAGE> 141
21.7 EVIDENCE OF TRUSTEE ACTION. In the event that the Trustee comprises two
or more Trustees, then those Trustees may designate one such Trustee to
transmit all decisions of the Trustee and to sign all necessary notices
and other reports on behalf of the Trustee. All notices and other
reports bearing the signature of the individual Trustee so designated
shall be deemed to bear the signatures of all the individual Trustees
and all parties dealing with the Trustee are entitled to rely on any
such notices and other reports as authentic and as representing the
action of the Trustee.
21.8 INVESTMENT POLICY. This Plan has been established for the sole purpose
of providing benefits to the Participants and their Beneficiaries. In
determining its investments hereunder, the Trustee shall take account of
the advice provided by the Administrator as to funding policy and the
short and long-range needs of the Plan based on the evident and probable
requirements of the Plan as to the time benefits shall be payable and
the requirements therefor.
21.9 PERIOD OF THE TRUST. If it shall be determined that the applicable State
law requires a limitation on the period during which the Employer's
Trust shall continue, then such Trust shall not continue for a period
longer than 21 years following the death of the last of those
Participants including future Participants who are living at the
Effective Date hereof. At least 180 days prior to the end of the
twenty-first year as described in the first sentence of this Section the
Employer, the Administrator and the Trustee shall provide for the
establishment of a successor trust and transfer of Plan assets to the
trustee. If applicable State law requires no such limitation then this
Section-shall not be operative.
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<PAGE> 142
ARTICLE =I
ADOPTING EMPLOYER
22.1 ELECTION TO BECOME ADOPTING EMPLOYER. With the consent of the Employer
and Trustee, if any, any employer, which along with the Employer is
included in a group of employers which constitute a controlled group of
corporations (as defined in Code section 414(h) as modified by section
415(h)) or which constitutes trade or businesses (whether or not
incorporated) which are under common control (as defined in section
414(c) as modified by section 415(h)) or which constitutes an
affiliated service group as defined in section 414(m) and is identified
as an Adopting Employer in the Adoption Agreement, may adopt this Plan
and all of its provisions.
22.2 DEFINITION. Any employer eligible to adopt this Plan under the
provisions of Section 22.1 and which adopts this Plan and all of its
provisions shall be known as an Adopting Employer and shall be included
within the term Employer, as defined in Section 1.27.
22.3 EFFECTIVE DATE OF PLAN. The effective date of the Plan for an Adopting
Employer on other than the date specified in the Adoption Agreement
shall be the first day of the Plan Year in which such Adopting Employer
adopts this plan.
22.4 FORFEITURES. Forfeitures of any nonvested portion of a Participant's
Account, as selected by the Employer in the Adoption Agreement, shall
be allocated only to other Participants who are employed by the
Adopting Employer who made the contributions to such Participant's
Account, or shall be used as a credit only for such Adopting Employer.
22.5 CONTRIBUTIONS. All contributions made by an Adopting Employer shall be
determined separately by each Adopting Employer and shall be paid to
and held by the Plan for the exclusive benefit of the Employees of such
Adopting Employer and the Beneficiaries of such Employees, subject to
all the terms and conditions of this Plan. The Administrator shall keep
separate books and records concerning the affairs of each Adopting
Employer and as to the accounts and credits of the Employees of each
Adopting Employer.
22.6 EXPENSES. Subject to Section 14.3, the expenses necessary to administer
the Plan of any Adopting Employer shall be taken from accounts of
Participants who are Employees of such Adopting Employer unless paid
for by such Adopting Employer. The expenses necessary to administer the
Plan for each Adopting Employer shall be determined by the ratio of the
value of all Participants' Accounts of such Adopting Employers to the
total value of all Participants' Accounts of each Adopting Employer.
22.7 SUBSTITUTION OF PLANS. Subject to the provisions of Section 15.7, and
Article XVIII, any Adopting Employer shall be permitted to withdraw
from its participation in this Plan. The consent of the Employer or any
other Adopting Employer shall not be required.
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<PAGE> 143
22.8 TERMINATION OF PLANS. If any Adopting Employer elects to terminate its
Plan pursuant to Sections 17.4, 17.5 and 17.6, such termination shall
in no way affect the Plan of any other Adopting Employer.
22.9 AMENDMENT. Amendment of this Plan by the Employer or any Adopting
Employer shall only be by the written consent of the Employer and each
and every Adopting Employer and with the consent of the Trustee, if
any, where such consent is necessary in accordance with the terms of
this Plan.
22.10 ADMINISTRATOR'S AUTHORITY. The Administrator shall have authority to
make any and all necessary rules or regulations, binding upon all
Adopting Employers and all Participants, to effectuate the purpose of
this Article.
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<PAGE> 144
AMENDMENT TWO TO THE ADOPTION AGREEMENT
TO THE
WYNDHAM EMPLOYEE SAVINGS & RETIREMENT PLAN
WHEREAS, Wyndham Hotel Corporation, a Delaware corporation
(hereinafter referred to as the "Employer") previously established the Wyndham
Employee Savings & Retirement Plan (as restated effective April 1, 1995)
(hereinafter referred to as the "Plan"), for the benefit of its eligible
employees and their beneficiaries; and
WHEREAS, the Employer reserved the right to amend the Plan under the
terms thereof; and
WHEREAS, the Employer desires to amend the Plan's Adoption Agreement
to permit the investment of Plan assets in common stock of Wyndham Hotel
Corporation, and to make certain other revisions;
NOW, THEREFORE, effective as of the dates specified below, the
Adoption Agreement for the Plan is hereby amended as follows:
A. Effective as of May 21, 1996, the Employer Designation section on page
one of the Adoption Agreement for the Plan is hereby deleted, and the
following new Employer Designation section is inserted in lieu
thereof:
"NAME OF EMPLOYER (LEGAL NAME):
Wyndham Hotel Corporation, a Delaware corporation
-------------------------------------------------
ADDRESS:
2001 Bryan Street
-----------------------------------------------------------------
CITY: Dallas STATE: Texas ZIP: 75201
-----------------------------------------------------------------
TYPE OF BUSINESS: EMPLOYER TAX STATUS:
Hotel Management TAX YEAR ENDS 12 31
---------------------------- ----- ----
MONTH YEAR
CLASSIFICATION OF BUSINESS:
X Corporation
-----
Partnership
-----
S Corporation
-----
<PAGE> 145
Sole Proprietorship
-----
Other ____________________"
-----
B. Effective as of May 21, 1996, Article VII of the Adoption Agreement
for the Plan is hereby deleted, and the following Article VII is
inserted in lieu thereof:
"VII. PLAN ADMINISTRATOR, SECTION 1.55
NAME:
Wyndham Hotel Corporation, a Delaware corporation
ADDRESS:
2001 Bryan Street
----------------------------------------------------
CITY: Dallas STATE: Texas ZIP: 75201 "
----------------------------------------------------
C. Effective as of July 22, 1996, Article XXIV of the Adoption Agreement
for the Plan is hereby deleted, and the following Article XXIV is
inserted in lieu thereof:
"XXIV. INVESTMENT OF PARTICIPANT'S ACCOUNT, SECTION 6.1
(a) The Participant shall NOT have the authority to direct the
--- investment of contributions made by the Employer.
X (b) The Participant SHALL have the authority to direct the
--- investment of contributions made by the Employer.
(Note: Complete the following only if (b) above is selected.)
X (c) The Participant may direct the investment of contributions made
--- by the Employer in Qualifying Employer Securities, within the
meaning of Section 407(d)(5) of ERISA, in accordance with the
following (Choose (1) or (2) below):
X (1) Up to 100% of a Participant's Account may be invested
--- in Qualifying Employer Securities, subject to the
rules and regulations established by the Plan
Administrator, the Trustee and/or the Plan Sponsor.
(2) Investment in Qualifying Employer Securities will not
--- be allowed.
If the Employer selects (1) in paragraph (c) above, then
voting and tender offer rights with respect to Qualifying
Employer Securities shall be delegated and exercised as
follows (choose one):
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<PAGE> 146
(1) The Plan Administrator shall direct the Trustee as to
--- the voting of all Qualifying Employer Securities and
as to all rights in the event of a tender offer
involving such Qualifying Employer Securities.
X (2) Each Participant shall be entitled to direct the Plan
--- Administrator as to the voting and tender offer
rights involving Qualifying Employer Securities held
in such Participant's Account, and the Plan
Administrator shall follow or cause the Trustee to
follow such Participant directions. If a Participant
fails to provide the Plan Administrator with
directions as to the voting or tender offer rights,
the Plan Administrator shall exercise those rights as
it determines in its discretion and shall direct the
Trustee accordingly. The Plan Administrator shall
provide to Participants copies of all notices,
prospectuses, financial statements, proxies, and
proxy- soliciting materials relating to Qualifying
Employer Securities held in such Participant's
Account and shall establish reasonable procedures and
rules for the exercise by Participants of voting and
tender offer rights referred to herein.
If the Employer selects (1) in paragraph (c) above, the term
"Qualifying Employer Securities" shall refer to the common
stock of Wyndham Hotel Corporation."
D. Effective as of May 21, 1996, Article XXIX of the Adoption Agreement
for the Plan is hereby deleted, and the following Article XXIX is
inserted in lieu thereof:
"XXIX OTHER ADOPTING EMPLOYER(S), SECTION 22.2
The following Adopting Employer(s) also adopt this Plan and have
executed this Adoption Agreement:
Wyndham Hotel Management Corporation, a Texas corporation, and its
payroll subsidiaries ________________________________________________
______________________________________________________________________"
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<PAGE> 147
IN WITNESS WHEREOF, the Employer, the Plan Administrator, and each
Adopting Employer have affixed their signatures.
EMPLOYER:
WYNDHAM HOTEL CORPORATION, a Delaware
corporation
By:
--------------------------------------
Title:
-----------------------------------
PLAN ADMINISTRATOR:
WYNDHAM HOTEL CORPORATION, a Delaware
corporation
By:
--------------------------------------
Title:
-----------------------------------
ADOPTING EMPLOYER:
WYNDHAM HOTEL MANAGEMENT CORPORATION, a
Texas corporation
By:
--------------------------------------
Title:
-----------------------------------
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