<PAGE> 1
As Filed with the Securities and Exchange Commission on November 23, 1999
Registration No. 333-_________________
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AmerUs Life Holdings, Inc.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
Iowa 42-1459712
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
699 Walnut Street, Des Moines, Iowa 50309-3948
(Address of principal executive offices) (Zip code)
</TABLE>
All*AmerUs Savings & Retirement Plan
(Full title of the plan)
Joseph K. Haggerty
Senior Vice President and General Counsel
AmerUs Life Holdings, Inc.
699 Walnut Street
Des Moines, Iowa 50309-3948
(Name and address of agent for service)
(515) 362-3688
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===========================================================================================
Proposed Proposed
Title of maximum maximum
securities Amount to offering aggregate Amount of
to be be price per offering registration
registered * registered share (1) price (1) fee
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A
Common
Stock, no 260,000 $22.5625 $5,866,250 $1,630.82
par value ------- ---------- ---------
===========================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration
fee. Such estimate has been calculated pursuant to Rule 457(h) based on the
average of the high and low prices of the Class A Common Stock, no par value,
of AmerUs Life Holdings, Inc., as reported on the New York Stock Exchange on
November 19, 1999.
This Registration Statement incorporates by reference the information contained
in the earlier registration statement relating to the All*AmerUs Savings &
Retirement Plan filed on January 31, 1997, Registration No. 333-20905, as
amended by Post-Effective Amendment No. 1 filed on August 25, 1997.
- ------------------
* In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
<PAGE> 2
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Des Moines, State of Iowa, on November 23, 1999.
AMERUS LIFE HOLDINGS, INC.
By /s/ Roger K. Brooks
------------------------------------
Roger K. Brooks
Chairman, President and Chief
Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned
directors and officers of AmerUs Life Holdings, Inc. hereby constitutes and
appoints Michael G. Fraizer and James A. Smallenberger, and each of them, his
true and lawful attorneys-in-fact and agents, for him and in his name, place
and stead, in any and all capacities, to sign one or more amendments to this
Registration Statement on Form S-8 under the Securities Act, including
post-effective amendments, and other related documents, and to file the same
with the Securities and Exchange Commission under said Act, hereby granting
power and authority to do and perform any and all acts and things requisite and
necessary to be done in and about the premises, as fully as to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents may lawfully do or cause to be done by
virtue thereof.
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following persons in the
capacities and on the dates set forth below.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Roger K. Brooks Chairman, President and November 23, 1999
- ---------------------------------- Chief Executive Officer
Roger K. Brooks (Principal Executive Officer)
and a Director
/s/ Michael G. Fraizer Senior Vice President and November 23, 1999
- ---------------------------------- Chief Financial Officer
Michael G. Fraizer
/s/ Brenda Cushing Vice President and November 23, 1999
- ---------------------------------- Principal Accounting Officer
Brenda Cushing
</TABLE>
- 2 -
<PAGE> 3
<TABLE>
<S> <C> <C>
/s/ John R. Albers Director November 23, 1999
- ----------------------------------
John R. Albers
/s/ Malcolm Candlish Director November 23, 1999
- ----------------------------------
Malcolm Candlish
/s/ Maureen M. Culhane Director November 23, 1999
- ----------------------------------
Maureen M. Culhane
/s/ Thomas F. Gaffney Director November 23, 1999
- ----------------------------------
Thomas F. Gaffney
/s/ Sam C. Kalainov Director November 23, 1999
- ----------------------------------
Sam C. Kalainov
/s/ Ralph W. Laster, Jr. Director November 23, 1999
- ----------------------------------
Ralph W. Laster, Jr.
/s/ John W. Norris, Jr. Director November 23, 1999
- ----------------------------------
John W. Norris, Jr.
/s/ Jack C. Pester Director November 23, 1999
- ----------------------------------
Jack C. Pester
/s/ John A. Wing Director November 23, 1999
- ----------------------------------
John A. Wing
</TABLE>
- 3 -
<PAGE> 4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Plan Administrator has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of Des
Moines, State of Iowa, on November 23, 1999.
ALL*AMERUS SAVINGS & RETIREMENT PLAN
By: AmerUs Benefit and Pension Committee
Plan Administrator
By: /s/ VICTOR N. DALEY
-------------------------------------------
VICTOR N. DALEY
-------------------------------------------
Title: Chairman
-----------------------------------
- 4 -
<PAGE> 5
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description Page
- ------ ----------- ----
<S> <C>
5.1 Opinion of Joseph K. Haggerty, Esq., Senior Vice
President and General Counsel of the Company,
regarding the legality of the securities being registered
hereunder.
23.1 Consent of Joseph K. Haggerty, Esq. (included in the
Opinion filed as Exhibit 5.1).
23.2 Consent of KPMG LLP.
24.1 Power of Attorney (set forth on the signature page of
this Registration Statement).
99.1 All*AmerUs Savings & Retirement Plan (as amended
and restated).
</TABLE>
- 5 -
<PAGE> 1
Exhibit 5.1
November 23, 1999
AmerUs Life Holdings, Inc.
699 Walnut Street
Des Moines, Iowa 50309-3948
Ladies and Gentlemen:
I am Senior Vice President and General Counsel of AmerUs Life
Holdings, Inc. (the "Company") and I have acted as counsel to the Company in
connection with the preparation of the Registration Statement on Form S-8 to be
filed by the Company with the Securities and Exchange Commission (the
"Commission") for the registration under the Securities Act of 1933, as
amended, of shares of the Company's Class A Common Stock (the "Common Stock")
to be issued to employees of the Company and certain of its affiliates under
the All*AmerUs Savings & Retirement Plan (the "Plan").
I have examined the originals, certified copies or copies
otherwise identified to my satisfaction as being true copies of the Plan and
such other documents as I have deemed necessary or appropriate for purposes of
this opinion.
Based on the foregoing, I am of the opinion that the Common
Stock will, when issued, be legally issued, fully paid and non-assessable.
I hereby consent to the filing of this opinion as Exhibit 5.1
to the Registration Statement.
Very truly yours,
/s/ Joseph K. Haggerty
----------------------------------
Joseph K. Haggerty
- 6 -
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITOR
To the Board of Directors and Stockholders
of AmerUs Life Holdings, Inc.:
Ladies and Gentlemen:
We consent to the use of our report incorporated by reference
in this Registration Statement on Form S-8 of AmerUs Life Holdings, Inc.
KPMG LLP
Des Moines, Iowa
November 23, 1999
- 7 -
<PAGE> 1
Exhibit 99.1
December 21, 1998
ALL*AMERUS SAVINGS & RETIREMENT PLAN
Amended and Restated
Generally Effective January 1, 1998
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(1) ACCOUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(2) ACQUISITION LOAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(3) ALLOCATED DIVIDENDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(4) AMVESTORS ESOP PARTICIPANT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(5) AMVESTORS PENSION PARTICIPANT . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(6) ANNUAL ADDITION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(7) ANNUITY STARTING DATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(8) BASIC BEFORE-TAX CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(9) BEFORE-TAX CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(10) BENEFICIARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(11) BOARD OF DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(12) BREAK IN SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(13) CODE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(14) COMMITTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(15) COMPANY STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(16) COMPANY STOCK FUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(17) COMPENSATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(18) COMPUTATION PERIOD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(19) CORE NONELECTIVE CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(20) CORPORATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(21) DEFINED CONTRIBUTION PLAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(22) DEFINED CONTRIBUTION PLAN FRACTION . . . . . . . . . . . . . . . . . . . . . . . . . 9
(23) DEFINED BENEFIT PLAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(24) DEFINED BENEFIT PLAN FRACTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(25) DIRECT ROLLOVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(26) DISABLED or DISABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(27) DISCRETIONARY ALLOCATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(28) DISCRETIONARY CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(29) DISTRIBUTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(30) DISTRIBUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(31) DIVERSIFICATION ACCOUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(32) DIVERSIFICATION PORTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(33) EFFECTIVE DATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
</TABLE>
2
<PAGE> 3
<TABLE>
<S> <C> <C>
(34) ELECTIVE DEFERRAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(35) ELECTIVE TRANSFER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(36) ELIGIBLE EMPLOYEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(37) ELIGIBLE NONELECTIVE CONTRIBUTION
EMPLOYEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(38) ELIGIBLE RETIREMENT PLAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(39) ELIGIBLE ROLLOVER DISTRIBUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(40) EMPLOYEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(41) EMPLOYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(42) EMPLOYING COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(43) EMPLOYING COMPANY ACQUISITION LOAN
CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(44) EMPLOYING COMPANY MATCHING
CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(45) EMPLOYMENT COMMENCEMENT DATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(46) ENTRY DATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(47) ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(48) ESOP CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(49) ESOP FEATURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(50) ESOP FUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(51) ESOP STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(52) EXCESS AGGREGATE CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(53) EXCESS CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(54) EXCESS CORE NONELECTIVE CONTRIBUTION . . . . . . . . . . . . . . . . . . . . . . . . 15
(55) EXCESS DEFERRAL AMOUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(56) FLEXIBLE BENEFIT CREDIT BEFORE-TAX CONTRIBUTION . . . . . . . . . . . . . . . . . . 15
(57) GRANDFATHERED AMVESTORS EMPLOYEE . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(58) GRANDFATHERED AMVESTORS PERCENTAGE . . . . . . . . . . . . . . . . . . . . . . . . . 16
(59) GRANDFATHERED AMVESTORS SUPPLEMENTAL
CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(60) HIGHLY COMPENSATED EMPLOYEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(61) HOUR OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(62) INTERIM BENEFIT SUPPLEMENT EMPLOYEE . . . . . . . . . . . . . . . . . . . . . . . . 18
(63) NTERIM SUPPLEMENTAL CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . 18
(64) INVESTMENT CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(65) INVESTMENT FUNDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(66) INVESTMENT MANAGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(67) JOINT AND SURVIVOR ANNUITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(68) LEVERAGED SHARES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(69) LIMITATION YEAR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(70) LOAN SUSPENSE ACCOUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(71) MATCHING CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(72) MATERNITY OR PATERNITY ABSENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
</TABLE>
3
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<TABLE>
<S> <C> <C>
(73) MONEY PURCHASE PENSION COMPONENT . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(74) MONEY PURCHASE PENSION PLAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(75) NAMED FIDUCIARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(76) 1998 AMENDMENT AND RESTATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(77) NONELECTIVE CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(78) NORMAL RETIREMENT AGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(79) PARTICIPANT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(80) PERIOD OF SEVERANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(81) PLAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(82) PLAN SPONSOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(83) PLAN YEAR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(84) PREDECESSOR PLAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(85) PRE-RETIREMENT SURVIVOR ANNUITY . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(86) PRIOR PLAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(87) PRIOR PLAN PARTICIPANT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(88) PROFIT-SHARING COMPONENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(89) QNEC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(90) QUALIFIED ELECTION PERIOD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(91) QUALIFIED MILITARY SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(92) QUALIFIED PARTICIPANT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(93) QUALIFIED RETIREMENT PLAN LOAN . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(94) REEMPLOYMENT COMMENCEMENT DATE . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(95) REGULAR EMPLOYEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(96) RETIRE or RETIREMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(97) ROLLOVER ACCOUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(98) ROLLOVER CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(99) SECTION 415 COMPENSATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(100) SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(101) SEVERANCE DATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(102) SHARES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(103) SPOUSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(104) STOCK BONUS COMPONENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(105) SUPPLEMENTAL BEFORE-TAX CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . 26
(106) SUPPLEMENTAL PERCENTAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(107) SUSPENSION PERIOD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(108) TERMINATION OF EMPLOYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(109) TRANSFERRED AMOUNTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
(110) TRUST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
(111) TRUST AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
(112) TRUST FUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
(113) TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
(114) UNALLOCATED DIVIDENDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
(115) UNIT or UNIT VALUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
(116) VALUATION DATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
</TABLE>
4
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<TABLE>
<S> <C> <C>
(117) YEAR OF ELIGIBILITY SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
</TABLE>
5
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<TABLE>
<S> <C>
ARTICLE II
EFFECTIVE DATE, ELIGIBILITY, AND PARTICIPATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
(1) EFFECTIVE DATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
(2) ELIGIBILITY AND PARTICIPATION . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE III
CONTRIBUTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
(1) CONTRIBUTION ELECTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
(2) BEFORE-TAX CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
(3) ROLLOVER CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
(4) MATCHING CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
(5) CORE NONELECTIVE CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
(6) INTERIM SUPPLEMENTAL CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . 37
(7) GRANDFATHERED AMVESTORS SUPPLEMENTAL CONTRIBUTIONS . . . . . . . . . . . . . . . . . 37
(8) DISCRETIONARY CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
(9) CONTRIBUTIONS BY EMPLOYING COMPANIES . . . . . . . . . . . . . . . . . . . . . . . . 38
(10) LIMIT ON TOTAL EMPLOYING COMPANY CONTRIBUTIONS . . . . . . . . . . . . . . . . . . 39
(11) PLAN TO PLAN TRANSFER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
(12) NONDISCRIMINATION RULES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
(13) LIMIT ON ELECTIVE DEFERRALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
(14) MAXIMUM ADDITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
(15) COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
(16) HIGHLY COMPENSATED EMPLOYEE STATUS . . . . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE IV
WITHDRAWALS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
(1) HARDSHIP WITHDRAWALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
(2) WITHDRAWALS AFTER AGE 59 1/2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
(3) PROCEDURE FOR WITHDRAWAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
(4) VALUATION PROCEDURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
(5) SPECIAL RULES FOR AMOUNTS ATTRIBUTABLE TO PREDECESSOR PLANS . . . . . . . . . . . . 50
</TABLE>
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ARTICLE V
TRUST FUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
(1) CONTRIBUTIONS AND ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
(2) TRUST FUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE VI
ESOP PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
(1) INVESTMENT OF ESOP CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 54
(2) ACQUISITION LOANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
(3) RELEASE OF COMPANY STOCK FROM LOAN
SUSPENSE ACCOUNTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
(4) PUT OPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
(5) DIVERSIFICATION RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
(6) DIVIDENDS ON SHARES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
(7) VALUATION OF COMPANY STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
(8) TENDER/VOTING OF COMPANY STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
(9) QUALIFICATION OF ESOP FEATURE . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
(10) TERMINATION OF ESOP FEATURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
ARTICLE VII
VESTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
(1) BEFORE-TAX CONTRIBUTIONS AND ROLLOVER CONTRIBUTIONS . . . . . . . . . . . . . . . . 68
(2) MATCHING CONTRIBUTIONS AND NONELECTIVE CONTRIBUTIONS . . . . . . . . . . . . . . . . 68
(3) FORFEITURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
(4) RESTORATION OF FORFEITED AMOUNTS UPON REPAYMENT . . . . . . . . . . . . . . . . . . 71
(5) EFFECTIVE DATE OF VESTING PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . 72
ARTICLE VIII
PARTICIPANT ACCOUNTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
(1) RECORDS, ALLOCATIONS, AND INVESTMENTS . . . . . . . . . . . . . . . . . . . . . . 73
(2) INVESTMENT ELECTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
(3) RESTRICTIONS ON TRANSACTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
(4) CONFIDENTIALITY REGARDING COMPANY STOCK . . . . . . . . . . . . . . . . . . . . . . 78
(5) VALUATION OF ACCOUNTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
</TABLE>
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(6) BENEFICIARIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
ARTICLE IX
ACCOUNT DISTRIBUTION:
TERMINATION; DEATH; TRANSFER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
(1) ELIGIBILITY FOR DISTRIBUTION OF
ACCOUNT: TERMINATION AND DEATH . . . . . . . . . . . . . . . . . . . . . . . . . . 80
(2) ELIGIBILITY FOR DISTRIBUTION OF ACCOUNT:
TRANSFERS OF EMPLOYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
(3) PAYMENT OF PARTICIPANT ACCOUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
(4) MEDIUM OF DISTRIBUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
(5) OTHER DISTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
(6) QUALIFIED DOMESTIC RELATIONS ORDERS . . . . . . . . . . . . . . . . . . . . . . . . 84
(7) ADDITIONAL DISTRIBUTION RULES . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
(8) SPECIAL RULES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
(9) RECOVERY OF PAYMENTS MADE BY MISTAKE . . . . . . . . . . . . . . . . . . . . . . . . 92
(10) SPECIAL RULES FOR CERTAIN DISTRIBUTION
APPLICATIONS SUBMITTED PRIOR TO THE
APPLICABLE EFFECTIVE DATE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
(11) COORDINATION BETWEEN PLANS AND WITH THE APPENDICES . . . . . . . . . . . . . . . . . 93
ARTICLE X
LOANS TO PARTICIPANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
(1) AVAILABILITY OF LOANS TO PARTICIPANTS . . . . . . . . . . . . . . . . . . . . . . . 95
(2) TERMS AND CONDITIONS OF LOANS TO PARTICIPANTS . . . . . . . . . . . . . . . . . . 95
(3) SPECIAL RULES FOR PREDECESSOR PLAN PARTICIPANTS . . . . . . . . . . . . . . . . . . 99
(4) PREEMPTION OF STATE USURY LAWS . . . . . . . . . . . . . . . . . . . . . . . . . . 100
(5) SPECIAL RULE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
ARTICLE XI
ADMINISTRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
(1) COMMITTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
(2) PROCEDURES AND ADMINISTRATION . . . . . . . . . . . . . . . . . . . . . . . . . . 101
(3) ALLOCATION OF RESPONSIBILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . 101
(4) ADMINISTRATIVE POWERS AND DUTIES . . . . . . . . . . . . . . . . . . . . . . . . . 102
(5) DELEGATION OF RESPONSIBILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . 104
(6) COMPENSATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
</TABLE>
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(7) PROVISION OF INFORMATION BY EMPLOYER . . . . . . . . . . . . . . . . . . . . . . . 104
(8) DOCUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
(9) SERVICE OF PROCESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
(10) SCOPE OF AUTHORITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
(11) INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
ARTICLE XII
AMENDMENT, TERMINATION, MERGER,
AND CONSOLIDATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
(1) AMENDMENT OF PLAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
(2) TERMINATION OF PLAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
(3) MERGER, CONSOLIDATION, OR TRANSFER . . . . . . . . . . . . . . . . . . . . . . . . 107
(4) REPRESENTATIONS CONTRARY TO PLAN . . . . . . . . . . . . . . . . . . . . . . . . . 108
ARTICLE XIII
CLAIMS PROCEDURE AND DISPUTED CLAIMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
(1) CLAIMS FOR BENEFITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
(2) REVIEW OF CLAIM DENIALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
(3) MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
(4) EXHAUSTION OF ADMINISTRATIVE REMEDIES . . . . . . . . . . . . . . . . . . . . . . 111
(5) LIMITATION ON ACTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
(6) FEDERAL PREEMPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
(7) NO RIGHT TO JURY TRIAL; EVIDENCE: . . . . . . . . . . . . . . . . . . . . . . . . 111
(8) SCOPE OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
(9) LIMITATION ON DAMAGES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
(10) PARTICIPANT PLAN DATA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
(11) ADVISORS NOT FIDUCIARIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
ARTICLE XIV
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
(1) TOP-HEAVY PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
(2) PROHIBITION AGAINST ALIENATION . . . . . . . . . . . . . . . . . . . . . . . . . . 115
(3) RELATIONSHIP BETWEEN EMPLOYING
COMPANIES AND EMPLOYEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
(4) PARTICIPANTS' BENEFITS LIMITED TO ASSETS . . . . . . . . . . . . . . . . . . . . . 115
(5) TITLES AND HEADINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
(6) GENDER AND NUMBER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
(7) APPLICABLE LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
</TABLE>
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(8) INABILITY TO LOCATE PAYEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
(9) INCOMPETENCE OF PAYEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
(10) DEALING WITH THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
(11) RETURN OF CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
(12) EXPENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
(13) SEPARABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
(14) PARTICIPANTS' PROTECTED RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . 118
(15) CODE SECTION 414(u) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
(16) OFFSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
(17) COMMITTEE AUTHORITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
(18) ACTIONS BY CORPORATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
(19) TREATMENT OF THE PLAN AND THE MONEY
PURCHASE PENSION PLAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
(20) APPENDICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
(21) MULTIPLE EMPLOYER PLAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
ARTICLE XV
ADOPTION AND WITHDRAWAL FROM PLAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
(1) PROCEDURE FOR ADOPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
(2) PROCEDURE FOR WITHDRAWAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
(3) ADOPTION OF PLAN BY UNRELATED EMPLOYER . . . . . . . . . . . . . . . . . . . . . . 121
ARTICLE XVI
SPECIAL EFFECTIVE DATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
(1) HIGHLY COMPENSATED EMPLOYEE STATUS AND
DEFINITION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
(2) NONDISCRIMINATION TESTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
(3) COMPENSATION UNDER CODE SECTION 415 . . . . . . . . . . . . . . . . . . . . . . . 123
(4) CONTRIBUTIONS ON BEHALF OF DISABLED EMPLOYEES . . . . . . . . . . . . . . . . . . 123
(5) LEASED EMPLOYEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
(6) CODE SECTION 414(u) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
(7) OFFSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
(8) DISTRIBUTIONS OF SMALL AMOUNTS . . . . . . . . . . . . . . . . . . . . . . . . . . 124
(9) WITHDRAWAL RESTRICTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
(10) MERGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
(11) COMMITTEE AUTHORITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
(12) EXPLANATION OF ELECTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
(13) MERGER, CONSOLIDATION, OR TRANSFER . . . . . . . . . . . . . . . . . . . . . . . . 125
(14) ESOP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
</TABLE>
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APPENDIX A
EMPLOYING COMPANIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
APPENDIX B
CALCULATION OF SUPPLEMENTAL PERCENTAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
APPENDIX C
CENTRAL LIFE PLAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
APPENDIX D
AMERICAN MUTUAL PLANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
APPENDIX E
IOWA REALTY PLANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
APPENDIX F
FIRST REALTY PLAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
APPENDIX G
EMPLOYEES OF FIRST EDINA MORTGAGE, L.L.C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
APPENDIX H
EMPLOYEES OF AMERUS PROPERTIES AND
IOWA REALTY COMMERCIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
APPENDIX I
EMPLOYEES OF EDINA REALTY HOME SERVICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
APPENDIX J
HOME REAL ESTATE OF OMAHA PLAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
</TABLE>
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ALL*AMERUS SAVINGS & RETIREMENT PLAN
INTRODUCTION
ALL*AMERUS SAVINGS & RETIREMENT PLAN AND ALL*AMERUS SAVINGS & RETIREMENT MONEY
PURCHASE PENSION PLAN DURING 1998.
With respect to the period from January 1, 1998 to December 31, 1998,
this document contains two plans: the All*AmerUs Savings & Retirement Plan
(the "Plan") and the All*AmerUs Savings & Retirement Money Purchase Pension
Plan (the "Money Purchase Pension Plan"). The Money Purchase Pension Plan
shall consist of the Money Purchase Pension Component (which is described in a
subsequent section of this Introduction). The Plan shall consist of all
components contained in this document that are not part of the Money Purchase
Pension Component.
With respect to the period from January 1, 1998 to December 31, 1998,
the term "Plan" is used to refer both to the All*AmerUs Savings & Retirement
Plan and to the All*AmerUs Savings & Retirement Money Purchase Pension Plan
except to the extent that the context indicates otherwise (such as where the
document is distinguishing between the two plans; see, for example, the first
paragraph of this Introduction). For example, references in Article II to the
"Plan" in the context of determining eligibility to participate apply to both
plans.
MERGER OF PLANS
Effective January 1, 1999, the following plans (referred to herein as
the "Prior Plans") are hereby merged into the Plan: the Money Purchase Pension
Plan, the AmVestors Financial Corporation Money Purchase Pension Plan, and the
AmVestors Financial Corporation Employees' Stock Ownership Plan. Accordingly,
as of January 1, 1999, the terms of this Plan document shall apply with respect
to all assets and liabilities in existence with respect to the Prior Plans
immediately before such date. Under such terms, the Money Purchase Pension
Plan shall become a component of the Plan (i.e., the Money Purchase Pension
Component), but such component shall cease to be a separate plan and Article
XIV(19) shall cease to apply. Correspondingly, except as otherwise provided in
this Plan document, as of January 1, 1999, the terms of the Prior Plans, as in
effect immediately before such date, shall cease to apply with respect to such
assets and liabilities.
The terms of this Plan document shall be construed in accordance with
the merger of the Prior Plans into this Plan document. This means that this
Plan document shall be construed to comply with all legal requirements
applicable to such a merger, such
<PAGE> 13
as Code Section 414(l), as reflected in Article XII(3). This Plan document
shall also be construed to comply with all legal requirements applicable to a
merged plan.
In addition to satisfying applicable legal requirements, it is also
intended more broadly that this Plan document shall be treated as a
continuation of the Prior Plans. See, for example, Article I(10) regarding
Beneficiary designations. On the other hand, this continuation concept does
not apply to preserve the terms of the Prior Plans except to the extent
specifically provided for in this Plan document.
SUMMARY OF THE PLAN
The Plan is amended and restated herein, effective as of January 1,
1998 except as otherwise provided herein. As noted, the merger of the Prior
Plans into the Plan is effective as of January 1, 1999. Correspondingly, the
ESOP Feature, which is based on the AmVestors Financial Corporation Employees'
Stock Ownership Plan, is effective as of January 1, 1999.
This Plan document also contains certain amendments to the Plan (and
predecessors of the Plan) with respect to periods of time prior to January 1,
1998. In addition, the Plan document contains similar amendments to the Prior
Plans (and predecessors of the Prior Plans) with respect to periods of time
prior to the January 1, 1999 merger. See Article XVI.
Set forth below is a very brief summary of the Plan as in effect as
of January 1, 1999. This summary should not be relied on since it is quite
general (and thus imprecise) and omits numerous important details and
refinements. The summary is intended solely to provide an overview and
orientation with respect to the provisions of the Plan.
STRUCTURE OF THE PLAN
CONTRIBUTIONS. Very generally, the Plan is structured in the
following manner. Eligible Employees are entitled to elect to have Before-Tax
Contributions made on their behalf up to limits specified in Article III. The
Employing Companies provide a Matching Contribution that is equal to 125% of an
Eligible Employee's Basic Before-Tax Contributions.
In addition, the Employing Companies provide a Core Nonelective
Contribution on behalf of each Eligible Nonelective Contribution Employee that
is generally equal to 4% of the Eligible Nonelective Contribution Employee's
Compensation (but may, under certain circumstances set forth in this document,
be a greater amount). Pursuant to Article III(5) and Article VI(3), this Core
Nonelective Contribution is provided in two ways. First, the Employing
Companies make contributions that are used to repay an Acquisition Loan. These
repayments cause Company Stock to be released from the Loan Suspense Account.
This released Company
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<PAGE> 14
Stock is used to provide at least part of the Core Nonelective Contribution.
To the extent that the Company Stock released from the Loan Suspense Account is
insufficient to provide the full Core Nonelective Contribution, the Employing
Companies make additional contributions.
The Employing Companies also provide two types of supplemental
Nonelective Contributions: Interim Supplemental Contributions and
Grandfathered AmVestors Supplemental Contributions. Interim Supplemental
Contributions are provided on behalf of Eligible Nonelective Contribution
Employees who were, as of December 31, 1995, active participants in a defined
benefit plan described in Appendix B. Grandfathered AmVestors Supplemental
Contributions are provided on behalf of Eligible Nonelective Contribution
Employees who were Employees of AmVestors Financial Corporation on January 1,
1999.
Each Employing Company may, in its sole and absolute discretion, also
make a Discretionary Contribution on behalf of its Eligible Nonelective
Contribution Employees. Any such Discretionary Contribution would be allocated
among the Employing Company's Eligible Nonelective Contribution Employees in
proportion to their Compensation.
INVESTMENT. Under Article VIII, Eligible Employees are entitled to
elect how all contributions (other than contributions that are attributable to
repayments of an Acquisition Loan) are invested by choosing among a menu of
Investment Funds, including a Company Stock Fund that is generally invested in
Company Stock. An Eligible Employee's right to direct investments is, however,
subject to a rule generally limiting investment in Company Stock to 50% of the
value of the Eligible Employee's Account.
Generally, all contributions that are attributable to repayments of an
Acquisition Loan are required to be invested in the ESOP Fund (which is
generally invested in Company Stock), subject to one exception. The exception
is the "diversification" provision in Article VI(5).
As noted, the Company Stock Fund and the ESOP Fund are both generally
invested in Company Stock. One reason for the existence of two separate funds
is to reflect the fact that there are two sets of investment rules governing
amounts held in Company Stock. Amounts invested in Company Stock attributable
to repayments of an Acquisition Loan (i.e., the ESOP Fund) are generally
required to remain invested in Company Stock. On the other hand, all other
amounts invested in Company Stock (i.e., the Company Stock Fund) may be
invested in other Investment Funds pursuant to the Participant's directions.
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<PAGE> 15
COMPONENTS OF THE PLAN
The Plan includes three components: (1) the Profit- Sharing
Component, which is a profit-sharing plan under Code Section 401(a) that
includes a qualified cash or deferred arrangement as defined in Code Section
401(k); (2) the Stock Bonus Component, which is both a stock bonus plan and an
employee stock ownership plan intended to qualify under Code Sections 401(a)
and 4975(e)(7) and is designed to invest primarily in Company Stock; and (3)
the Money Purchase Pension Component, which is a money purchase pension plan
intended to qualify under Code Section 401(a).
MONEY PURCHASE PENSION COMPONENT. Except for amounts attributable to
repayments of an Acquisition Loan, all amounts attributable to Core Nonelective
Contributions, Interim Supplemental Contributions, and Grandfathered AmVestors
Supplemental Contributions are part of the Money Purchase Pension Component.
STOCK BONUS COMPONENT AND THE ESOP FEATURE. The Stock Bonus Component
and the ESOP Feature each consist of all amounts that are invested in the ESOP
Fund.
PROFIT-SHARING COMPONENT. The Profit-Sharing Component consists of
all amounts that are not part of the Money Purchase Pension Component or the
Stock Bonus Component.
The AmVestors Financial Corporation Employees' Stock Ownership Plan
is merged into the Stock Bonus Component and the ESOP Feature and shall be
treated as part of the ESOP Fund, subject to the provisions of the Plan
applicable to the ESOP Fund. The other Prior Plans are merged into the Money
Purchase Pension Component.
Whether a contribution is in the Profit-Sharing Component, the Stock
Bonus Component, or the Money Purchase Pension Component, and whether a
contribution is part of the ESOP Feature, have certain significances set forth
in this document.
MERGER CONTINGENCY
Notwithstanding anything herein to the contrary, if, pursuant to
Article XVI(10), the Money Purchase Pension Plan is not merged into the Plan as
of January 1, 1999, this Introduction and this document shall be deemed to be
revised accordingly. For example, in that case, this document shall continue
to contain two plans as of January 1, 1999 (the Plan and the Money Purchase
Pension Plan) and Article XIV(19) shall continue to apply.
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QUALIFICATION
The Plan is intended to qualify under Code Section 401(a) and to
comply with the provisions of ERISA, the Code, and all other applicable federal
laws and regulations; in addition, the cash or deferred arrangements referred
to above are intended to qualify under Code Section 401(k). For purposes of
qualification under the Code, the Profit-Sharing Component is intended to be a
profit-sharing plan, as that term is used under the Code. However, no
contribution under this Plan shall be conditioned on the existence of profits
of the Corporation, any Employing Company, the Employer, or any other entity or
group of entities. The provisions of the Plan shall be construed to effectuate
the foregoing intentions.
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<PAGE> 17
ARTICLE I
DEFINITIONS
The following words and phrases, when used in this document with an
initial capital letter, shall have the following meanings, unless the context
clearly indicates otherwise.
(1) ACCOUNT:
The individual interest of a Participant in the Trust Fund as
determined as of each Valuation Date.
(2) ACQUISITION LOAN:
A loan or other extension of credit, described in Code Section
4975(d)(3), used to finance the purchase of Company Stock by the
Trustee.
(3) ALLOCATED DIVIDENDS:
Cash dividends on Company Stock that is held in the ESOP Fund and
that is allocated to Participants' Accounts.
(4) AMVESTORS ESOP PARTICIPANT:
An individual who would be a Prior Plan Participant if Section (87)
were revised so that "the AmVestors Financial Corporation Employees'
Stock Ownership Plan" were substituted for "a Prior Plan" each place
it appears.
(5) AMVESTORS PENSION PARTICIPANT:
An individual who would be a Prior Plan Participant if Section (87)
were revised so that "the AmVestors Financial Corporation Money
Purchase Pension Plan" were substituted for "a Prior Plan" each place
it appears.
(6) ANNUAL ADDITION:
Annual addition as defined in Code Section 415(c)(2). In the event
that a contribution is allocated to a Participant's Account because
of an erroneous failure to allocate in a prior Plan Year, such
contribution shall be part of the Participant's Annual Addition for
the Plan Year to which it relates, and not for the Plan Year in which
it is contributed or allocated.
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(7) ANNUITY STARTING DATE:
The first day of the first period for which an amount is paid as an
annuity or any other form.
(8) BASIC BEFORE-TAX CONTRIBUTIONS:
Before-Tax Contributions elected by a Participant pursuant to Article
III(2)(a).
(9) BEFORE-TAX CONTRIBUTIONS:
Before-tax contributions made under a "cash or deferred arrangement"
by the Employing Companies on a Participant's behalf pursuant to an
election by the Participant under which he agrees to have his
Compensation reduced by a specified percentage and the Employing
Companies agree to contribute an amount equal to such reduction to
the Plan as Before-Tax Contributions. All Before-Tax Contributions
shall be identified and separately accounted for either as Basic
Before-Tax Contributions or as Supplemental Before-Tax Contributions.
Before-Tax Contributions are intended to constitute employer
contributions made on an elective basis under a qualified cash or
deferred arrangement within the meaning of Code Section 401(k)(2).
(10) BENEFICIARY:
The person or persons designated by the Participant to receive any
payment from the Trust Fund after the death of a Participant. In the
case of a Participant to whom Article IX(8) applies, a designation of
a beneficiary other than the Participant's Spouse (or a change to a
beneficiary other than the Participant's Spouse) will not be valid
except to the extent permitted under Article IX(8). Such person or
persons shall be designated in a manner prescribed for this purpose
by the Committee and may be changed from time to time in a manner
prescribed for this purpose by the Committee. Any designation or
change in designation shall be effective only upon receipt by the
Committee of such designation or change in designation, provided that
any designation or change in designation shall not be valid if it is
received by the Committee after the death of the Participant. In the
absence of a valid designation, the Beneficiary shall be (a) the
Participant's Spouse or (b) if there is no Spouse surviving the
Participant, the Participant's estate.
With respect to a Prior Plan Participant who does not become an
Eligible Employee hereunder, if a designation of a beneficiary other
than the Participant's Spouse (or a change to a beneficiary other
than the Participant's Spouse) was in effect and valid as of December
31, 1998 under a Prior Plan, such designation shall, with respect to
that portion of his Account attributable to the Prior Plan, be
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<PAGE> 19
treated as in effect and valid under this Plan as of January 1, 1999,
subject to change in the manner set forth in the preceding paragraph
of this Section (10). With respect to any other Prior Plan
Participant, the determination of his Beneficiary shall be made under
the otherwise applicable terms of this Plan.
(11) BOARD OF DIRECTORS:
The Board of Directors of the Corporation, or any delegate of such
Board.
(12) BREAK IN SERVICE:
With respect to any individual, any Computation Period for which the
individual is not credited with more than 500 Hours of Service.
(13) CODE:
The Internal Revenue Code of 1986, as amended from time to time, and
the regulations issued thereunder. A reference to any Section of the
Code shall also be deemed to refer to any applicable successor
statutory provision.
(14) COMMITTEE:
The AmerUs Benefit and Pension Committee.
(15) COMPANY STOCK:
The class A common stock of AmerUs Life Holdings, Inc. (or any
successor entity).
(16) COMPANY STOCK FUND:
The portion of the Trust Fund that is designated by the Committee as
the Company Stock Fund and that is (a) invested in Company Stock, or
(b) treated as part of the Company Stock Fund by the Committee.
(17) COMPENSATION:
Compensation within the meaning of Treasury Regulation Section
1.415-2(d)(11)(i) (or any applicable successor provision) received by
an Employee as an Employee, determined separately for each payroll
period; provided that such compensation shall be increased by any
elective contributions made by the Employer and not includible in
gross income under Code Section 125 or Code Section 402(e)(3);
provided further that Compensation shall not include sign-on bonuses,
long-term incentives, moving expenses, severance payments,
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<PAGE> 20
flexible benefit credits taken in cash, car allowances, fitness
reimbursements, and exam awards. No amount paid to any individual
shall be considered Compensation unless paid during a period when
such individual is an Eligible Employee. Notwithstanding the
preceding provisions of this Section (17), for Plan Years beginning
after December 31, 1988, the total Compensation for any Plan Year
shall not include any amount over $200,000, or effective January 1,
1994, $150,000 (both figures adjusted in accordance with Code
Sections 401(a)(17) and 415(d)).
(18) COMPUTATION PERIOD:
With respect to any individual, each twelve-month period with respect
to which the individual's Hours of Service are computed for purposes
of Section (117).
(19) CORE NONELECTIVE CONTRIBUTIONS:
Allocations made pursuant to Article III(5).
(20) CORPORATION:
AmerUs Life Holdings, Inc. (or any successor entity).
(21) DEFINED CONTRIBUTION PLAN:
Defined contribution plan as defined in Code Section 415(k).
(22) DEFINED CONTRIBUTION PLAN FRACTION:
Defined contribution plan fraction as defined in Code Section 415(e).
(23) DEFINED BENEFIT PLAN:
Defined benefit plan as defined in Code Section 415(k).
(24) DEFINED BENEFIT PLAN FRACTION:
Defined benefit plan fraction as defined in Code Section 415(e).
(25) DIRECT ROLLOVER:
A payment by the Plan to the Eligible Retirement Plan specified by
the Distributee.
(26) DISABLED or DISABILITY:
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<PAGE> 21
Any physical or mental condition that renders an Eligible Employee
incapable of performing the work for which he was employed or similar
work, as certified in writing by a doctor of medicine and as approved
by the Committee.
(27) DISCRETIONARY ALLOCATIONS:
Allocations made pursuant to Article III(8).
(28) DISCRETIONARY CONTRIBUTIONS:
Contributions made pursuant to Article III(8).
(29) DISTRIBUTEE:
This term includes an Employee or former Employee with respect to an
Eligible Rollover Distribution. In addition, the Employee's or
former Employee's surviving spouse and the Employee's or former
Employee's spouse or former spouse who is the alternate payee under a
qualified domestic relations order, as defined in Section 414(p) of
the Code, are Distributees with respect to the interest of the spouse
or former spouse in an Eligible Rollover Distribution.
(30) DISTRIBUTION:
Any payment by the Plan to or on behalf of a Participant or
Beneficiary, including a withdrawal by such Participant or
Beneficiary.
(31) DIVERSIFICATION ACCOUNT:
The portion of a Participant's Account that is attributable to ESOP
Contributions and that is invested in the ESOP Fund.
(32) DIVERSIFICATION PORTION:
With respect to any Participant, the excess (if any) of (a) the sum
of (i) 25% of the number of Shares that have been allocated to his
Diversification Account at any time on or before the date as of which
the Diversification Portion is being determined, and (ii) 25% of the
number of shares of Company Stock (as defined in the AmVestors
Financial Corporation Employees' Stock Ownership Plan, as in effect
as of December 31, 1998) that have been allocated to his Stock
Account (as defined in the AmVestors Financial Corporation Employees'
Stock Ownership Plan, as in effect as of December 31, 1998) at any
time or before the date as of which the Diversification Portion is
being derermined, over (b) the sum of (i) the number of such Shares
with respect to
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<PAGE> 22
which an election has previously been made by the Participant under
Article VI(5), and (ii) the number of shares of Company Stock (as
defined in the AmVestors Financial Corporation Employees' Stock
Ownership Plan, as in effect as of December 31, 1998) with respect to
which a diversification election was previously made by the
Participant under Article 10 (or a predecessor provision) of the
AmVestors Financial Corporation Employees' Stock Ownership Plan. In
interpreting and applying the preceding sentence, the Committee shall
(d) adjust the number of shares of Company Stock described in Section
(32)(a)(ii) and Section (32)(b)(ii) to the extent appropriate to take
into account any period when the stock so described was not stock of
the Corporation; (e) adjust the number of Shares described in Section
(32)(a)(i) to prevent any shares taken into account under Section
(32)(a)(ii) from being taken into account again as Shares under
Section (32)(a)(i); and (f) apply all of the foregoing provisions in
accordance with Code Section 401(a)(28). During the 90-day period
immediately following the close of the last Plan Year in the
Qualified Election Period, the second preceding sentence shall be
applied by substituting "50%" for "25%". For purposes of this
Section (32), any number of Shares shall be rounded to the nearest
whole integer.
(33) EFFECTIVE DATE:
January 1, 1998.
(34) ELECTIVE DEFERRAL:
Elective deferral as defined in Code Section 402(g)(3).
(35) ELECTIVE TRANSFER:
Elective transfer described in Treasury Regulation Section 1.411(d)-4
Q/A-3(b) (or any applicable successor provision).
(36) ELIGIBLE EMPLOYEE:
Any Employee who is eligible to participate under Article II(2).
(37) ELIGIBLE NONELECTIVE CONTRIBUTION EMPLOYEE:
With respect to a Plan Year, an individual who:
(a) Is (i) an Eligible Employee on the last day of the Plan
Year, and (ii) is credited with at least 1,000 Hours of
Service for the Plan Year, or
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<PAGE> 23
(b) (i) died, became Disabled, or Retired during the Plan
Year, and (ii) was an Eligible Employee immediately
before his death, his becoming Disabled, or his
Retirement.
(38) ELIGIBLE RETIREMENT PLAN:
Eligible retirement plan as defined in Code Section 401(a)(31)(D).
(39) ELIGIBLE ROLLOVER DISTRIBUTION:
Eligible rollover distribution as defined in Code Section
401(a)(31)(C).
(40) EMPLOYEE:
An employee of an Employing Company, provided that the following
individuals shall not be Employees:
(a) any employee of an Employing Company the terms of whose
employment are subject to a collective bargaining
agreement between one or more Employing Companies and a
collective bargaining agent, unless the collective
bargaining agreement specifically provides for
participation in this Plan,
(b) any employee of an Employing Company who is neither a
resident nor a citizen of the United States, and
(c) any leased employee (as defined in Code Section 414(n)).
Notwithstanding any provision of the Plan to the contrary, the term
"Employee" shall not include for any purpose of the Plan any
individual except to the extent that such individual is
contemporaneously designated on the Employing Company's records (or
on the records of the Employer on behalf of the Employing Company) as
an employee for all purposes including, without limitation, all
purposes under Subtitle C of the Code. Thus, for example, an
individual who for a Plan Year is not contemporaneously designated on
the Employing Company's records (or on the records of the Employer on
behalf of the Employing Company) as an employee for all purposes
under Subtitle C of the Code shall not be an Employee for any part of
such Plan Year by reason of the fact that at a later time the
individual is retroactively treated as an employee of an Employing
Company for such Plan Year for purposes of Subtitle C of the Code.
As another example, an individual shall not be an Employee if such
individual (i) is contemporaneously designated on the Employing
Company's records (or on the records of the Employer on behalf of the
Employing Company) as an independent contractor or a leased employee
(within the meaning of Code Section
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<PAGE> 24
414(n)), or (ii) is not contemporaneously designated as on the
regular payroll of an Employing Company. The preceding three
sentences of this Section (40) shall apply to an individual without
regard to whether an Employing Company provides remuneration to such
individual and without regard to the manner in which an Employing
Company calculates or provides any such remuneration.
(41) EMPLOYER:
All Employing Companies and all employers required to be aggregated
with any Employing Company under Sections 414(b), (c), (m), or (o) of
the Code, provided that for purposes of Article III(14), the
modifications prescribed by Code Section 415(h) shall apply.
Notwithstanding the foregoing, if an Employing Company ("first
Employing Company") is not required to be aggregated with another
Employing Company ("second Employing Company") under Sections 414(b),
(c), (m), or (o) of the Code, the first Employing Company and all
employers required to be aggregated with the first Employing Company
under Sections 414(b), (c), (m), or (o) of the Code, shall, to the
extent required by law or to the extent the context clearly requires,
be treated as a separate Employer from the second Employing Company
and all employers required to be aggregated with the second Employing
Company under Sections 414(b), (c), (m), or (o) of the Code. See
Article XIV(21).
Subject to the second sentence of the preceding paragraph, the term
"Employer" shall be used throughout this Plan to refer to the
respective Employer entities or to the collective group of Employer
entities or another similar meaning, as determined by the context in
which the term is used. The principle that shall guide the
interpretation of the use of the term "Employer" in this Plan is set
forth in Article XIV(21).
(42) EMPLOYING COMPANY:
(a) The Corporation;
(b) A member (or functional unit of a member) of a controlled
group of corporations, within the meaning of Code Section
414(b), of which the Corporation is a member;
(c) An entity (or functional unit of an entity) under common
control, within the meaning of Code Section 414(c), with
the Corporation; and
(d) Any other entity (or functional unit of an entity).
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<PAGE> 25
Notwithstanding the foregoing, an entity shall be an Employing
Company only to the extent that such entity has adopted the Plan in
accordance with Article XV and has not terminated such adoption
thereunder. The entities that are Employing Companies as of January
1, 1998 (or such other date specified in Appendix A) are set forth in
Appendix A, provided that the terms of Article XV, rather than
Appendix A, shall be controlling with respect to the determination of
whether any entity is an Employing Company.
Except to the extent that the context indicates otherwise, references
to acts by an Employing Company shall be deemed to include acts by
the Corporation on behalf of the Employing Company.
(43) EMPLOYING COMPANY ACQUISITION LOAN CONTRIBUTIONS:
Contributions by the Employing Companies that are made to enable the
Trustee to repay in whole or in part an Acquisition Loan.
(44) EMPLOYING COMPANY MATCHING CONTRIBUTIONS:
Contributions made by the Employing Companies to provide Matching
Contributions either directly or indirectly (as set forth in Article
VI(3)).
(45) EMPLOYMENT COMMENCEMENT DATE:
The date on which an employee first performs an Hour of Service.
(46) ENTRY DATE:
The first day of each calendar month.
(47) ERISA:
The Employee Retirement Income Security Act of 1974, as amended from
time to time, and the regulations issued thereunder. A reference to
any Section of ERISA shall also be deemed to refer to any applicable
successor statutory provision.
(48) ESOP CONTRIBUTIONS:
Employing Company Acquisition Loan Contributions.
(49) ESOP FEATURE:
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<PAGE> 26
That portion of the Plan consisting of an employee stock ownership
plan as defined in Code Section 4975(e)(7). The ESOP Feature
consists of amounts that are invested in the ESOP Fund.
(50) ESOP FUND:
The portion of the Trust Fund that is designated by the Committee as
the ESOP Fund and that is (a) invested in Company Stock or (b)
treated as part of the ESOP Fund by the Committee.
(51) ESOP STOCK:
Company Stock held in the ESOP Fund.
(52) EXCESS AGGREGATE CONTRIBUTIONS:
Excess aggregate contributions as defined in Code Section 401(m)(6).
(53) EXCESS CONTRIBUTIONS:
Excess contributions as defined in Code Section 401(k)(8).
(54) EXCESS CORE NONELECTIVE CONTRIBUTION:
The excess (if any) of (a) the value of the Core Nonelective
Contribution allocated on behalf of an Eligible Nonelective
Contribution Employee for a Plan Year, determined in the manner set
forth in this Section (54), over (b) 4% of the Eligible Nonelective
Contribution Employee's Compensation for the Plan Year. Solely for
purposes of this Section (54), the value of the Core Nonelective
Contribution allocated on behalf of an Eligible Nonelective
Contribution Employee for a Plan Year shall be the value that the
Core Nonelective Contribution actually allocated on behalf of the
Eligible Nonelective Contribution Employee for the Plan Year would
have had if (c) the value of each Share on the date the Core
Nonelective Contribution is allocated were equal to the value
described in the succeeding sentence, and (d) Allocated Dividends
were not used in the manner described in Article VI(6)(a)(ii)(B).
The value described in this sentence is the lowest value of a Share
during the twelve-month period ending on the date the Core
Nonelective Contribution is allocated.
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<PAGE> 27
(55) EXCESS DEFERRAL AMOUNT:
With respect to a Participant, the lesser of (a) the amount by which
a Participant's Elective Deferrals exceed the limit in effect under
Code Section 402(g) for a calendar year, or (b) the amount of the
Participant's Before-Tax Contributions for the calendar year.
(56) FLEXIBLE BENEFIT CREDIT BEFORE-TAX CONTRIBUTION:
Before-Tax Contributions made pursuant to an election by a
Participant under which he agrees to have the portion of his
Compensation attributable to flexible benefit creditss reduced and
the applicable Employing Company agrees to contribute an amount equal
to such reduction to the Plan as Before-Tax Contributions. The
definition of flexible benefit credits in the All*AmerUs Flexible
Benefit Plan is incorporated herein by reference.
(57) GRANDFATHERED AMVESTORS EMPLOYEE:
An Eligible Nonelective Contribution Employee who was an Employee of
AmVestors Financial Corporation on January 1, 1999.
(58) GRANDFATHERED AMVESTORS PERCENTAGE:
With respect to a Grandfathered AmVestors Employee in a Plan Year,
the compensation percentage that would have applied to the
Grandfathered AmVestors Employee in that Plan Year under Section
5.1(a) of the AmVestors Financial Corporation Money Purchase Pension
Plan if the AmVestors Financial Corporation Money Purchase Pension
Plan had continued in effect under the same terms that were in effect
as of December 31, 1998. Thus, for example, if a Grandfathered
AmVestors Employee would not have been an Eligible Participant (as
defined in the AmVestors Financial Corporation Money Purchase Pension
Plan, as in effect as of December 31, 1998) under such plan with
respect to a Plan Year, the Grandfathered AmVestors Percentage for
such Grandfathered AmVestors Employee for such Plan Year is zero.
(59) GRANDFATHERED AMVESTORS SUPPLEMENTAL CONTRIBUTIONS:
Allocations made pursuant to Article III(7).
(60) HIGHLY COMPENSATED EMPLOYEE:
A highly compensated employee as defined in Code Section 414(q). The
Corporation is authorized to make any elections permitted under Code
Section
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<PAGE> 28
414(q), and to modify any election previously made. Except to the
extent prohibited by law, the election made with respect to any Plan
Year need not be made with respect to any subsequent Plan Year. An
election may be made by any written document evidencing the
Corporation's intent to make such election and, with respect to a
Plan Year, may be made at any time at which it is being determined
whether the Plan satisfies the requirements of Code Sections
401(a)(4), 401(k)(3), 401(m)(2), or 410(b) or any other applicable
requirements that require the identification of Highly Compensated
Employees.
(61) HOUR OF SERVICE:
(a) Each hour for which an employee is directly or indirectly
paid or entitled to payment by the Employer: (i) for the
performance of duties; (ii) on account of a period during
which no duties are performed (irrespective of whether
the employment relationship has terminated) due to
vacation, holiday, illness, incapacity (including
disability), layoff, jury duty, military duty, or leave
of absence; or (iii) for which back pay, irrespective of
mitigation of damages, is either awarded or agreed to by
the Employer; provided, however, that no hour shall be
credited as an Hour of Service under more than one of the
preceding clauses.
(b) Notwithstanding anything to the contrary in the
foregoing: (i) not more than 501 Hours of Service shall
be credited to an employee under subsection (a)(ii) or
(a)(iii) on account of any single continuous period
during which the employee performs no duties (whether or
not such period occurs in a single Plan Year); (ii) an
hour for which an employee is directly or indirectly paid
or entitled to payment on account of a period during
which no duties are performed shall not be credited to
such employee if such payment is made or due under a plan
maintained solely for the purpose of complying with any
applicable workers' compensation, disability insurance,
or unemployment compensation law; and (iii) Hours of
Service shall not be credited for a payment which solely
reimburses an employee for medical or medically related
expenses incurred by the employee.
(c) The rules set forth in sections 2530.200b-2(b) and (c) of
the Department of Labor Regulations with respect to
determining Hours of Service for reasons other than the
performance of duties and for crediting Hours of Service
to computation periods are incorporated herein by
reference.
(d) Solely for purposes of determining whether a Break in
Service has occurred, if an individual is absent from
work by reason of such
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<PAGE> 29
individual's pregnancy, the birth of such individual's
child, or the placement of a child with such individual
in connection with adoption by such individual, or if an
individual is absent from work for purposes of caring for
such a child for a period immediately following such
birth or placement, such individual shall be credited
with certain Hours of Service under the following rules.
Credit shall be given under this subsection (d) for the
number of Hours of Service which otherwise would normally
have been credited to such individual but for such
absence (or, if the Committee cannot make this
determination, eight Hours of Service per working day of
absence), up to a total of 501 Hours of Service. Such
Hours of Service shall be credited only to the
Computation Period in which the absence from work begins
if such credit would prevent the individual from
incurring a Break in Service in that Computation Period
or, in any other case, to the immediately following
Computation Period. Notwithstanding the foregoing,
however, credit shall not be given under this subsection
(d) unless the individual furnishes to the Committee such
timely information as the Committee may reasonably
require to establish that the absence is for the
permitted reasons and to establish the length of such
absence. The provisions of this subsection (d) shall not
be construed to limit the number of Hours of Service
which otherwise would be credited to an individual under
the other provisions of this Section (61), provided that
there shall be no duplication of credit.
(e) Notwithstanding anything to the contrary in this Section
(61), an individual shall be credited with Hours of
Service to the extent required by applicable law.
(f) For purposes of this Section, Hours of Service will be
credited for employment with a previous employer of an
Employee but only to the extent and for such purposes as
are expressly provided herein or in a document executed
by the Corporation. With respect to the provision of
such credit, any such document is incorporated herein by
reference.
(62) INTERIM BENEFIT SUPPLEMENT EMPLOYEE:
An Eligible Nonelective Contribution Employee who was, as of December
31, 1995, an active participant in a defined benefit plan described
in Appendix B.
(63) INTERIM SUPPLEMENTAL CONTRIBUTIONS:
Allocations made pursuant to Article III(6).
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(64) INVESTMENT CONTRIBUTIONS:
Matching, Nonelective, Before-Tax, and Rollover Contributions, QNECs,
and Transferred Amounts made on behalf of a Participant.
(65) INVESTMENT FUNDS:
The separate funds, other than amounts held in retirement accounts
described in Article VIII(2)(c)(ii)(B), in which assets of the Trust
may be invested under the applicable provisions of this Plan,
including Article VIII.
(66) INVESTMENT MANAGER:
Investment manager as defined in Section 3(38) of ERISA.
(67) JOINT AND SURVIVOR ANNUITY:
An annuity under which joint and survivor benefits are paid to the
Participant for his life, and, following the Participant's death, are
paid to the Participant's Spouse during the Spouse's lifetime at a
rate equal to fifty percent (50%) of the rate at which such benefits
are payable to the Participant, provided that with respect to a
Participant who is not married on the Annuity Starting Date, the
Joint and Survivor Annuity is a single life annuity payable to the
Participant.
(68) LEVERAGED SHARES:
Shares of Company Stock acquired by the Trustee with the proceeds of
an Acquisition Loan pursuant to Article VI(2).
(69) LIMITATION YEAR:
The Plan Year.
(70) LOAN SUSPENSE ACCOUNT:
The account under which Leveraged Shares are held until released for
allocation pursuant to Article VI(3).
(71) MATCHING CONTRIBUTIONS:
Allocations pursuant to Article III(4).
(72) MATERNITY OR PATERNITY ABSENCE:
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Any period up to two years that begins after December 31, 1984, in
which an employee of the Employer is absent from work by reason of
such employee's pregnancy, the birth of such employee's child, or the
placement of a child with such employee in connection with adoption
by such employee, or for purposes of caring for such a child for a
period immediately following such birth or placement. An absence
shall not be treated as a Maternity or Paternity Absence unless the
Employee furnishes to the Committee such timely information as the
Committee may reasonably require to establish that the absence is for
the permitted reasons and the length of such absence.
(73) MONEY PURCHASE PENSION COMPONENT:
The component of the Plan consisting of a money purchase pension
plan. The Money Purchase Pension Component consists of all
Nonelective Contributions that are made with respect to a period on
or after January 1, 1998, other than (a) Discretionary Allocations
and (b) that portion of the Nonelective Contributions attributable to
Employing Company Acquisition Loan Contributions; provided that, with
respect to the period from January 1, 1998 to December 31, 1998, the
Money Purchase Pension Component shall also not include Nonelective
Contributions provided on behalf of Eligible Nonelective Contribution
Employees described in Section (37)(b).
(74) MONEY PURCHASE PENSION PLAN:
The All*AmerUs Savings & Retirement Money Purchase Pension Plan.
(75) NAMED FIDUCIARY:
Named fiduciary as defined in Section 402(a)(2) of ERISA.
(76) 1998 AMENDMENT AND RESTATEMENT:
This amendment and restatement of the Plan, as executed in 1998.
(77) NONELECTIVE CONTRIBUTIONS:
Allocations pursuant to Sections (5), (6), (7), and (8) of Article
III.
(78) NORMAL RETIREMENT AGE:
With respect to a Participant, the later of (a) the date the
Participant attains age 65, or (b) the fifth anniversary of the date
the Participant commenced participation in the Plan (determined in
accordance with Code Section 411(a)(8)).
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(79) PARTICIPANT:
An Employee (or employee or former employee of the Employer or a
predecessor employer)) (a) with respect to whom an amount has been
credited to his Account, and (b) who continues to have rights or
contingent rights to benefits under this Plan.
(80) PERIOD OF SEVERANCE:
A period of time commencing with an employee's Severance Date and
ending with the date on which he is next credited with an Hour of
Service; provided, however, that a Period of Severance shall not
include (a) any period explicitly included in the definition of
Service, or (b) any period that is a Maternity or Paternity Absence.
(81) PLAN:
The All*AmerUs Savings & Retirement Plan, the terms of which are
herein set forth. With respect to the period from January 1, 1998 to
December 31, 1998, the term "Plan" shall also refer to the All*AmerUs
Savings & Retirement Money Purchase Pension Plan in accordance with,
and to the extent provided in, the Introduction to this document and
Article XIV(19). Accordingly, with respect to the period from
January 1, 1998 to December 31, 1998, all provisions contained in
this document (a) shall apply to the All*AmerUs Savings & Retirement
Plan except to the extent that a provision is expressly limited to
the All*AmerUs Savings & Retirement Money Purchase Pension Plan or
the context indicates otherwise, and (b) shall apply to the
All*AmerUs Savings & Retirement Money Purchase Pension Plan except to
the extent that a provision is expressly limited to the All*AmerUs
Savings & Retirement Plan or the context indicates otherwise.
(82) PLAN SPONSOR:
The Corporation.
(83) PLAN YEAR:
The twelve-month period beginning each January 1 and ending on the
next following December 31.
(84) PREDECESSOR PLAN:
A plan that has been merged, consolidated, or transferred into this
Plan, in whole or in part.
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(85) PRE-RETIREMENT SURVIVOR ANNUITY:
An annuity for the life of the Participant's Spouse.
(86) PRIOR PLAN:
The following shall each be treated as a Prior Plan: the Money
Purchase Pension Plan, the AmVestors Financial Corporation Money
Purchase Pension Plan, and the AmVestors Financial Corporation
Employees' Stock Ownership Plan. Any reference in this Plan to a
Prior Plan, either by use of such term or by use of the name set
forth in the preceding sentence, shall be a reference to such Prior
Plan as in effect as of December 31, 1998, except to the extent
otherwise provided in this Plan or to the extent that the context
clearly indicates otherwise.
(87) PRIOR PLAN PARTICIPANT:
An Employee (or employee or former employee of the Employer or a
predecessor employer) (a) with respect to whom an amount had been
credited to his account under a Prior Plan, and (b) who continued to
have rights or contingent rights to benefits under a Prior Plan as of
December 31, 1998.
(88) PROFIT-SHARING COMPONENT:
The component of the Plan consisting of a profit-sharing plan,
including a qualified cash or deferred arrangement described in Code
Section 401(k). The Profit-Sharing Component consists of all amounts
that are not contained in the Money Purchase Pension Component or the
Stock Bonus Component.
(89) QNEC:
Qualified nonelective contribution as defined in Treasury Regulation
Section 1.401(k)-1(g)(13) (or any applicable successor provision).
(90) QUALIFIED ELECTION PERIOD:
With respect to any Participant, the six-Plan Year period beginning
with the later of (a) the first Plan Year in which the Participant
becomes a Qualified Participant, or (b) the earlier of (i) the Plan
Year that commences January 1, 1999, or (ii) the first day of the
Participant's "diversification election period" under Article 10 (or
a predecessor provision) of the AmVestors Financial Corporation
Employees' Stock Ownership Plan (as in effect on December 31, 1998).
(91) QUALIFIED MILITARY SERVICE:
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<PAGE> 34
Qualified military service as defined in Code Section 414(u)(5).
(92) QUALIFIED PARTICIPANT:
Any Participant or Prior Plan Participant who has (a) attained age
55, and (b) completed at least 10 years of participation under the
Plan (or a Precedessor Plan) determined in accordance with Code
Section 401(a)(28), provided that years of participation under the
Plan (or a Predecessor Plan) prior to the addition of an ESOP feature
shall be taken into account in the same manner as years of
participation after the addition of the ESOP feature, provided
further that no year shall be counted more than once with respect to
any Participant or Prior Plan Participant.
(93) QUALIFIED RETIREMENT PLAN LOAN:
Any loan from this Plan or any other retirement plan of the Employer
that is made to a participant or beneficiary thereunder and that is
subject to Code Section 72(p).
(94) REEMPLOYMENT COMMENCEMENT DATE:
The first date for which an employee is credited with an Hour of
Service for the performance of duties after:
(a) For purposes of determining eligibility to participate in
the Plan, the first Computation Period in which the
employee incurs a Break in Service, or
(b) For purposes of Article VII, a Period of Severance.
(95) REGULAR EMPLOYEE:
Any Employee who is scheduled to work, on a regular basis and for an
indefinite period, at least 20 hours per week for one or more
Employing Companies. The determination as to whether an Employee
meets the requirements of the preceding sentence shall be made as of
the date the Employee is hired (or rehired) as an Employee. An
Employee who was not described in the first sentence of this Section
(95) as of the date of hire or rehire as an Employee shall become a
Regular Employee as of the first day of the first calendar month
beginning after the Committee is notified that the Employee's
schedule has changed so that he is scheduled to work, on a regular
basis and for an indefinite period, at least 20 hours per week for
one or more Employing Companies. An Employee who was described in
the first sentence of this Section (95) as of the
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<PAGE> 35
date of hire or rehire as an Employee shall cease to be a Regular
Employee as of the first day of the first calendar month beginning
after the Committee is notified that the Employee's schedule has
changed so that he is not scheduled to work, on a regular basis and
for an indefinite period, at least 20 hours per week for one or more
Employing Companies.
(96) RETIRE or RETIREMENT:
A Termination of Employment by an Eligible Employee for a reason
other than death on a date that is (a) on or after the date the
Eligible Employee attained age 55, and (b) on or after the date the
Eligible Employee attained five years of Service.
(97) ROLLOVER ACCOUNT:
The portion of an Account reflecting Rollover Contributions made by a
Participant as provided in Article III(3) and as adjusted each
Valuation Date.
(98) ROLLOVER CONTRIBUTION:
A transfer described in Code Section 402(c)(1) or 403(a)(4)(A), a
payment described in Code Section 401(a)(31) or 408(d)(3)(A)(ii), or
an Elective Transfer.
(99) SECTION 415 COMPENSATION:
Section 415 Compensation for a Plan Year shall mean compensation as
defined in Treasury Regulation Section 1.415-2(d)(11)(i) (or any
applicable successor provision) (including amounts paid or reimbursed
by the employer for moving expenses incurred by the employee, but
only to the extent that such amounts are described in Treasury
Regulation Section 1.415- 2(d)(11)(i) (or any applicable successor
provision)); provided that for Plan Years beginning after December
31, 1997, Section 415 Compensation shall also include amounts
described in Code Section 415(c)(3)(D).
(100) SERVICE:
All periods of time from a person's Employment Commencement Date (or
from a subsequent Reemployment Commencement Date) until such person's
next Severance Date, subject to the other provisions of this Section
(100), provided that no period shall be treated as Service under more
than one subsection (or portion thereof) of this Section (100).
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(a) If an employee of the Employer quits, is discharged, or
retires, and then performs an Hour of Service within twelve
(12) months after his Severance Date, the Period of Severance
shall be included in Service. Notwithstanding the foregoing,
if an employee of the Employer quits, is discharged, or
retires during an absence (with or without pay) of twelve (12)
months or less for any reason other than quitting, discharge,
retirement, or death, the Period of Severance shall be
included in Service only if he performs an Hour of Service
within twelve (12) months after the date he was first absent.
(b) Service shall include:
(i) Service credited under the terms of a Predecessor
Plan (unless lost under the Predecessor Plan's terms);
(ii) Any service credited under an Appendix to this Plan;
(iii) Periods of employment with a predecessor to the
Employer to the extent that the periods are credited
under a plan of the predecessor that is continued by
the Employer or to the extent otherwise required by
law;
(iv) A leave of absence approved by the Employer in
writing; provided, however, that if an individual
does not return from leave, his Service shall only
include the first year of leave; and
(v) A period of employment in a uniformed service (as
defined in the Uniformed Services Employment and
Reemployment Rights Act of 1994), if the Participant
was an Employee before his employment in the
uniformed service and he returns to employment with
the Employer before his reemployment rights under the
statute expire.
(c) To the extent required by law, Service shall not be considered
interrupted by, and/or shall include, Qualified Military
Service and/or leaves of absence.
(d) In the case of an employee of the Employer who incurs a Period
of Severance, and who immediately before such Period of
Severance has not met the requirements for a vested benefit,
and who again becomes an employee of the Employer, Service
shall not include any Service before such Period of Severance
if the length of the Period of Severance equals or exceeds the
greater of (i) five (5) years, or (ii) the length of the
employee's Service before the Period of Severance.
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(e) Non-successive periods of Service and less than whole month
periods of Service shall be aggregated on the basis that 30
days of Service equals one whole month of Service.
(101) SEVERANCE DATE:
The earlier of:
(a) The date on which an employee has a termination of employment
with respect to the Employer by reason of a discharge, quit,
retirement, or death, provided that the determination as to
whether an employee has had a termination of employment shall
be determined under the rules applicable for purposes of Code
Section 401(a), or
(b) The date 12 months after the date on which an employee of the
Employer first becomes absent from the service of the Employer
(with or without pay) for any other reason.
(102) SHARES:
Shares of Company Stock.
(103) SPOUSE:
The lawful female wife of a male Participant, or the lawful male
husband of a female Participant, on the date of the Participant's
death, except that for purposes of Article IX(3)(c) and all Plan
provisions related to Joint and Survivor Annuities, an individual
shall only be a Spouse if such individual was the lawful female wife
of a male Participant or the lawful male husband of a female
Participant as of the Annuity Starting Date. A former spouse will be
treated as the Spouse and a current spouse will not be treated as the
Spouse to the extent provided under a qualified domestic relations
order (within the meaning of Code Section 414(p)). If, pursuant to
the preceding sentence, more than one individual is treated as a
Spouse of a Participant, the total amount to be paid in the form of a
Pre-Retirement Survivor Annuity, in the form of the survivor portion
of a Joint and Survivor Annuity, or in any other form shall not
exceed the amount that would be paid if there were only one Spouse,
determined in accordance with Code Sections 401(a)(13) and 414(p).
(104) STOCK BONUS COMPONENT:
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<PAGE> 38
The component of the plan consisting of a stock bonus plan under Code
Section 401(a) and constituting the ESOP Feature. The Stock Bonus
Component consists of all amounts invested in the ESOP Fund.
(105) SUPPLEMENTAL BEFORE-TAX CONTRIBUTIONS:
Before-Tax Contributions elected by a Participant pursuant to Article
III(2)(b).
(106) SUPPLEMENTAL PERCENTAGE:
The percentage determined under Appendix B.
(107) SUSPENSION PERIOD:
With respect to any Eligible Employee, the twelve-month period that
commences on the date of a withdrawal by such Eligible Employee under
Article IV(1).
(108) TERMINATION OF EMPLOYMENT:
Termination of employment from the Employer, subject to the following
provisions:
(a) With respect to Before-Tax Contributions (and the
earnings attributable thereto) and QNECs (and the
earnings attributable thereto), the term "Termination of
Employment" shall mean a separation from the service
(within the meaning of Code Section 401(k)(2)(B)(i)(I))
of the Employer, provided that an event described in Code
Section 401(k)(10)(A)(ii) or (iii) (taking into account
Code Section 401(k)(10)(B) and (C)) shall be treated as a
separation from the service of the Employer for this
purpose.
(b) An event shall not be treated as a Termination of
Employment with respect to that portion of a
Participant's Account that, in connection with such
event, is transferred from the Plan to another plan,
which other plan is qualified under Code Section 401(a)
or 403(a) and is maintained by the employer by which the
Participant becomes employed in connection with the
event. For purposes of this subsection (b), a transfer
shall not include an Elective Transfer, but shall include
a merger or consolidation of any part of this Plan with a
plan described in the preceding sentence.
(109) TRANSFERRED AMOUNTS:
Amounts transferred to the Trustee pursuant to Article III(11).
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(110) TRUST:
The trust or trusts under which the assets of the Plan are held and
invested, provided that where necessary or appropriate in context,
such term shall refer to all or fewer than all of such trusts.
(111) TRUST AGREEMENT:
The agreement or agreements pursuant to which the Trust Fund is held,
provided that where necessary or appropriate in context, such term
shall refer to all or fewer than all of such agreements.
(112) TRUST FUND:
A term used to refer to assets held in the Trust under the Plan.
(113) TRUSTEE:
The trustee or trustees of the Trust, provided that where necessary
or appropriate in context, such term shall refer to all or fewer than
all of such trustees.
(114) UNALLOCATED DIVIDENDS:
Cash dividends on Leveraged Shares that are not allocated to a
Participant's Account.
(115) UNIT OR UNIT VALUE:
The method by which the value of a Participant's Account is measured,
as described in Article VIII(5).
(116) VALUATION DATE:
The close of business on the day on which a transaction is processed.
(117) YEAR OF ELIGIBILITY SERVICE:
(a) With respect to any individual, a period of twelve
consecutive months (1) during which the individual
completes 1,000 or more Hours of Service and (2) that
ends on (A) the individual's first anniversary of his
Employment Commencement Date (or Reemployment
Commencement Date, if applicable), (B) the last day of
the Plan Year that contains the individual's first
anniversary of his
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Employment Commencement Date (or Reemployment
Commencement Date, if applicable), or (C) the last day of
any subsequent Plan Year. A Year of Eligibility Service
is deemed completed as of the close of the last day of
the twelve-month period that comprises such year.
(b) Any service otherwise creditable for purposes of Article
II to a period prior to January 1, 1998 (determined under
the terms of the Plan in effect prior to January 1, 1998)
shall be so credited (but only to the extent such service
is not otherwise creditable under Section (117)(a)).
(c) Any service creditable to an individual for eligibility
purposes as of December 31, 1998 under a Prior Plan
(without regard to whether such individual participated
in a Prior Plan as of December 31, 1998 or as of any
prior date) shall be credited for purposes of Article II
(but only to the extent that such service is not
otherwise creditable under Section (117)(a)).
(d) In the case of an employee of the Employer who incurs one
or more consecutive Breaks in Service, who immediately
before such Breaks in Service has not met the
requirements for a vested benefit, and who again becomes
an employee of the Employer, service before such Breaks
in Service shall be disregarded for all purposes in
determining the employee's Years of Eligibility Service
if the number of consecutive Breaks in Service equals or
exceeds the greater of (i) five or (ii) the number of the
employee's Years of Eligibility Service before the Breaks
in Service.
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ARTICLE II
EFFECTIVE DATE, ELIGIBILITY, AND PARTICIPATION
(1) EFFECTIVE DATE:
The Plan, as amended and restated herein, is effective as of January
1, 1998, or such other date as indicated herein. Article XVI
contains additional provisions regarding the effective date of this
1998 Amendment and Restatement.
(2) ELIGIBILITY AND PARTICIPATION:
(a) Each Employee who was eligible to participate in the Plan
immediately before the Effective Date shall be an
Eligible Employee as of the Effective Date. In the case
of an Employee who was eligible to participate in a Prior
Plan as of December 31, 1998, such Employee shall be an
Eligible Employee as of January 1, 1999.
(b) A Regular Employee who does not qualify under subsection
(a) shall be eligible to participate in the Plan as of
the first Entry Date coincident with or next following
the later of (i) the Effective Date, or (ii) the date he
becomes a Regular Employee (or becomes a Regular Employee
again in the case of a former Regular Employee).
(c) Each Employee who has not become eligible to participate
in the Plan pursuant to subsections (a) or (b) shall be
eligible to participate as of the first Entry Date
following his completion of one Year of Eligibility
Service, provided that he is then an Employee.
(d) Notwithstanding the foregoing, if a former Employee is
reemployed as an Employee and, as of the date of such
reemployment, is credited with at least one Year of
Eligibility Service, such Employee shall be eligible to
participate in the Plan as of the later of (i) the Entry
Date described in subsection (c), or (ii) the date of his
reemployment as an Employee.
(e) Participation in this Plan is voluntary. Any Eligible
Employee may become a Participant as of the date
specified in Article III(1)(c) (or in other provisions of
Article III) by properly following the enrollment
procedures established by the Committee.
(f) (i) Any Eligible Employee shall be eligible to participate in
the Plan with respect to making a Rollover Contribution.
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<PAGE> 42
(ii) Any individual who has an Account under the Plan by
reason of a transfer, merger, or consolidation described
in Article III(11) shall be a Participant with respect to
such Transferred Amount, provided that the determination
of whether an individual is an Eligible Employee shall be
made without regard to this subsection (f)(ii).
(g) Notwithstanding anything herein to the contrary, an
individual shall cease to be eligible to participate
under the Plan as of the date that he ceases to be an
Eligible Employee. See Article IX(2) with respect to the
treatment of an individual who ceases to be an Eligible
Employee but remains employed by the Employer.
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<PAGE> 43
ARTICLE III
CONTRIBUTIONS
(1) CONTRIBUTION ELECTIONS:
(a) Except as otherwise provided herein, this Section (1)
applies only to Before-Tax Contributions other than
Flexible Benefit Credit Before-Tax Contributions.
Flexible Benefit Credit Before-Tax Contributions are
subject to (i) the terms of the All*AmerUs Flexible
Benefit Plan, the applicable terms of which are
incorporated herein by reference, and (ii) subsections
(f) and (g).
(b) (i) Except as otherwise provided in subsection
(b)(ii), an Eligible Employee must enter
into an agreement in a form acceptable to
the Committee under which he elects
Before-Tax Contributions (see Section (2)),
in order to have such contributions
credited to his Account. Subject to the
limitations set forth in this Article III,
the Eligible Employee's contribution
election must specify the percentage of the
Eligible Employee's Compensation to be
contributed to the Trust Fund as Before-Tax
Contributions. The elected percentage must
be in multiples of 1% of Compensation. An
Eligible Employee may elect Supplemental
Before-Tax Contributions only if the Basic
Before-Tax Contributions that will be made
on his behalf are at the maximum level
permitted under Section (2)(a) of this
Article III.
(ii) Effective as of January 1, 1999, this
subsection (b)(ii) shall apply to:
(A) Any individual who becomes an
Eligible Employee for the first time
on a date after December 31, 1998;
(B) Any individual who had been an
Eligible Employee and becomes an
Eligible Employee again on a date
after December 31, 1998; and
(C) Any individual who is an Eligible
Employee on December 31, 1998, but
who has not had Before-Tax
Contributions made on his behalf
with respect to any period after
June 30, 1996 and before January 1,
1999.
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Except as otherwise provided in this
subsection (b), any individual to whom this
subsection (b)(ii) applies shall be deemed to
have entered into an agreement under which he
elects to have Basic Before-Tax Contributions
made on his behalf in an amount equal to 2%
of his Compensation for each pay period.
Such deemed election shall be effective:
(D) Within an administratively
reasonable time after the date the
individual becomes an Eligible
Employee, in the case of an
individual described in subsection
(b)(ii)(A);
(E) Within an administratively
reasonable time after the date the
individual becomes an Eligible
Employee again, in the case of an
individual described in subsection
(b)(ii)(B); or
(F) As of January 1, 1999, in the case
of an individual described in
subsection (b)(ii)(C), provided that
to the extent that a suspension
described in Article IV(1)(d)(ii) is
applicable to a contribution
election, the effective date of such
deemed election shall be the first
day after the expiration of the
Suspension Period.
(iii) For all purposes under this Plan, a deemed
election under subsection (b)(ii) shall be
treated in the same manner as an actual
election under subsection (b)(i) to have
Before-Tax Contributions made on his behalf.
Thus, for example, a deemed election shall
remain in effect as provided in subsection
(d) until the Eligible Employee changes or
suspends the election as provided in
subsection (e). Notwithstanding the
foregoing, an individual shall not be treated
as having made a deemed election under
subsection (b)(ii) if such individual makes
(A) an actual election under subsection
(b)(i) to have Before-Tax Contributions made
on his behalf, or (B) an actual election in a
form acceptable to the Committee under which
he elects not to have Before-Tax
Contributions made on his behalf. In order
for such an actual election to prevent an
individual from being treated as having made
a deemed election under subsection (b)(ii),
the Committee must receive notice of such
actual election, in accordance with
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<PAGE> 45
procedures established by the Committee,
within an administratively reasonable time
prior to the date on which his Compensation
would first be reduced pursuant to the deemed
election; provided that for this purpose, an
actual election not to have Before-Tax
Contributions made on his behalf must be made
on or after January 1, 1999.
(iv) The Committee shall provide such notice and
take such other actions to ensure that
individuals described in subsection (b)(ii)
have an effective opportunity to make an
actual election described in subsection
(b)(iii).
(c) An Eligible Employee's contribution election shall become
effective as follows:
(i) If an Employee is an Eligible Employee
immediately before and as of the Effective
Date, a contribution election in effect
immediately before the Effective Date shall
remain in effect until such time as it is
changed or suspended in accordance with the
terms of this Plan.
(ii) The contribution election of an Eligible
Employee who:
(A) has suspended contributions
either voluntarily or as a result
of a suspension described in
Article IV(1)(d)(ii); or
(B) meets the eligibility
requirements of Article II (other
than an Eligible Employee
described in subparagraph (i)
above);
shall be effective within an
administratively reasonable time after such
election is received by the Committee,
provided the election is submitted in
accordance with the Committee's procedures,
and provided further, to the extent that a
suspension described in Article
IV(1)(d)(ii) is applicable to a
contribution election, the effective date
of such election shall not be before the
expiration of the Suspension Period.
(d) Subject to the limitations set forth in this Article III,
an Eligible Employee's contribution election shall remain
in effect until the Eligible Employee changes or suspends
the election as provided in subsection (e) of this
Section (1). If an individual ceases to be an
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<PAGE> 46
Eligible Employee, his contribution election will be
terminated, and no further Before-Tax Contributions will
be made under this Article III to the Plan on his behalf
unless and until he again becomes an Eligible Employee
and a new election becomes effective. In the event of an
adjustment in Compensation, the dollar amount of
contributions shall thereafter be automatically adjusted
in accordance with the percentages set forth in the
contribution election which is in effect at the time the
adjustment in Compensation is made.
(e) An Eligible Employee may suspend or change the level of
Before-Tax Contributions effective within an
administratively reasonable time after the Committee
receives notice, in accordance with the procedures
established by the Committee, of such suspension or
change. A contribution election, as so modified, shall
thereafter remain in effect as provided in subsection
(d).
(f) Any Before-Tax Contributions made pursuant to an Eligible
Employee's contribution election shall be paid into the
Trust Fund for investment according to the investment
options selected by the Eligible Employee pursuant to
Article VIII.
(g) Notwithstanding anything herein to the contrary, the
effective date of a contribution election (under
subsection (c)) or a contribution modification election
(under subsection (e)) shall be delayed for any reasons
that are appropriate in the sole and absolute discretion
of the Committee, taking into account its duties under
ERISA. Such a reason could include, for example, a
technological malfunction affecting the implementation of
contribution elections and/or contribution modification
elections. In the case of a delay pursuant to this
subsection (g), the effective date of an affected
contribution election or contribution modification
election shall be within an administratively reasonable
time after the first date on which the reason for the
delay no longer applies.
(h) For purposes of all Plan provisions relating to
contribution elections, any individual who shall become
an Eligible Employee as of a specified date shall, during
the period prior to such date, be entitled to make,
suspend, or change his contribution election effective as
of such date in the same manner and subject to the same
rules as apply to Eligible Employees.
(2) BEFORE-TAX CONTRIBUTIONS:
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<PAGE> 47
Before-Tax Contributions consist of Basic Before-Tax Contributions
and Supplemental Before-Tax Contributions. An Eligible Employee may
elect with respect to any pay period:
(a) Basic Before-Tax Contributions up to a limit of 4% of his
Compensation for such pay period, and
(b) Supplemental Before-Tax Contributions up to a limit equal
to the sum of (i) 11% of his Compensation for such pay
period, and (ii) any Flexible Benefit Credit Before-Tax
Contribution made on his behalf with respect to such pay
period.
Notwithstanding the foregoing, an Eligible Employee may not have
Supplemental Before-Tax Contributions contributed with respect to a
pay period unless the Eligible Employee's Basic Before-Tax
Contributions with respect to such pay period equal 4% of his
Compensation for such pay period.
Accordingly, with respect to an Eligible Employee, a Flexible Benefit
Credit Before-Tax Contribution made with respect to a pay period
shall be treated as a Basic Before-Tax Contribution to the extent
that Before-Tax Contributions for the pay period on behalf of the
Eligible Employee are less than 4% of the Eligible Employee's
Compensation for the pay period. All other Flexible Benefit Credit
Before-Tax Contributions shall be treated as Supplemental Before-Tax
Contributions.
(3) ROLLOVER CONTRIBUTIONS:
(a) The Committee may in its sole and absolute discretion
permit an Eligible Employee to make one or more Rollover
Contributions to the Trust Fund. For purposes of making
a decision as to whether to permit a Rollover
Contribution by an Eligible Employee, the Committee may
in its sole and absolute discretion require the Eligible
Employee or other parties to provide such information or
documentation as the Committee deems appropriate. The
Committee may but is not required to establish such rules
and procedures as it deems appropriate with respect to
the manner in which it will exercise its sole and
absolute discretion under this Section (3)(a).
(b) A Rollover Contribution with respect to an Eligible
Employee shall be credited to the Account of such
Eligible Employee. No Matching Contributions will be
made with respect to a Rollover Contribution.
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<PAGE> 48
(4) MATCHING CONTRIBUTIONS:
Subject to the limitations set forth in this Article III, with
respect to a Plan Year, the Employing Companies shall cause a
Matching Contribution to be allocated to the Account of each Eligible
Employee in an amount equal to 125% of the Basic Before-Tax
Contributions made on behalf of such Eligible Employee.
(5) CORE NONELECTIVE CONTRIBUTIONS:
(a) Subject to the limitations set forth in this Article III,
with respect to a Plan Year, the Employing Companies
shall cause a Core Nonelective Contribution to be
allocated to the Account of each Eligible Nonelective
Contribution Employee in an amount equal to the greater
of (i) 4% of such Eligible Nonelective Contribution
Employee's Compensation for the Plan Year, or (ii) the
amount described in Section (5)(b).
(b) With respect to an Eligible Nonelective Contribution
Employee, the amount described in this Section (5)(b) is
the sum of (i) the value of the Shares that, for the Plan
Year, have been released from the Loan Suspense Account
in accordance with Article VI(3)(b) and that are
allocated to the Account of the Eligible Nonelective
Contribution Employee in accordance with Article
VI(3)(e)(i), and (ii) the excess of (A) 4% of the
Eligible Nonelective Contribution Employee's Compensation
for the Plan Year, over (B) the portion of the total
Employing Company Acquisition Loan Contributions for the
Plan Year that bears the same relationship to all of such
Employing Company Acquisition Loan Contributions for the
Plan Year as the Eligible Nonelective Contribution
Employee's Compensation for the Plan Year bears to the
total Compensation of all Eligible Nonelective
Contribution Employees for the Plan Year. For purposes
of subparagraph (B), the amount of the Employing Company
Acquisition Loan Contributions shall be the amount of
such contributions determined as if no Acquisition Loans
had been made on or after October 1, 1998.
(6) INTERIM SUPPLEMENTAL CONTRIBUTIONS:
Subject to the limitations set forth in this Article III, with
respect to a Plan Year, the Employing Companies shall cause an
Interim Supplemental Contribution to be allocated to the Account of
each Interim Benefit Supplement Employee in an amount equal to the
excess of (a) the Supplemental Percentage of such Interim Benefit
Supplement Employee's Compensation for the Plan Year over (b) the sum
of the Excess Core
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<PAGE> 49
Nonelective Contribution and the Discretionary Allocation allocated
on behalf of such Interim Benefit Supplement Employee for the Plan
Year.
(7) GRANDFATHERED AMVESTORS SUPPLEMENTAL CONTRIBUTIONS:
Subject to the limitations set forth in this Article III, with
respect to a Plan Year, the Employing Companies shall cause a
Grandfathered AmVestors Supplemental Contribution to be allocated to
the Account of each Grandfathered AmVestors Employee in an amount
equal to the excess (if any) of (a) the Grandfathered AmVestors
Percentage of the Grandfathered AmVestors Employee's Compensation for
the Plan Year over (b) the sum of (i) 4% of such Grandfathered
AmVestors Employee's Compensation for the Plan Year and (ii) the
Discretionary Allocation allocated on behalf of such Grandfathered
AmVestors Employee with respect to the Plan Year.
(8) DISCRETIONARY CONTRIBUTIONS:
Subject to the limitations set forth in this Article III, with
respect to a Plan Year, each Employing Company may make a
Discretionary Contribution on behalf of the Eligible Nonelective
Contribution Employees. The board of directors of the Employing
Company may, in its sole and absolute discretion, make a separate
determination for each Plan Year as to (a) whether to make a
Discretionary Contribution and (b) if so, the amount of such
Discretionary Contribution. If a Discretionary Contribution is made
by an Employing Company with respect to a Plan Year, such
Discretionary Contribution shall be allocated among the Eligible
Nonelective Contribution Employees in proportion to the Compensation
received from the Employing Company in that Plan Year by each
Eligible Nonelective Contribution Employee.
(9) CONTRIBUTIONS BY EMPLOYING COMPANIES:
With respect to each Plan Year, each Employing Company shall
contribute its share of the total amount needed to cause the total
Employing Company Acquisition Loan Contribution to be made and to
cause all of the Core Nonelective Contributions, Interim Supplemental
Contributions, and Grandfathered AmVestors Supplemental Contributions
to be allocated on behalf of Eligible Nonelective Contribution
Employees. The share contributed by each Employing Company shall
bear the same relationship to the total of all such contributions as
(a) the Compensation paid in the Plan Year by all Employing Companies
to the Employing Company's Eligible Nonelective Contribution
Employees bears to (b) the total Compensation paid in the Plan Year
by all Employing Companies to all Eligible Nonelective Contribution
Employees. For purposes of the preceding sentence, an Employing
Company's Eligible Nonelective Contribution Employees shall be those
Eligible Nonelective Contribution Employees who are on the regular
payroll
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<PAGE> 50
of such Employing Company on (c) the last day of the Plan Year or (d)
in the case of an Eligible Nonelective Contribution Employee
described in Article I(37)(b), the last day in the Plan Year before
the Employee dies, becomes Disabled, or Retires.
(10) LIMIT ON TOTAL EMPLOYING COMPANY CONTRIBUTIONS:
Notwithstanding anything herein to the contrary, the total amount of
contributions made by the Employing Companies to provide Matching
Contributions, Nonelective Contributions, and Before-Tax
Contributions for a taxable year may be limited in any manner
determined by the Employing Companies in order to prevent any such
contributions from being nondeductible for such taxable year under
Section 404 of the Code or under any other applicable provisions of
the Code.
(11) PLAN TO PLAN TRANSFER:
(a) With respect to any Employee (or employee or former
employee of the Employer or a predecessor employer), the
Committee may in its sole and absolute discretion permit
the Trustee to accept, as part of the Trust Fund, assets
and liabilities that are (i) transferred from a plan
qualified under Code Section 401(a) or 403(a) or (ii)
received as a result of a merger or consolidation of such
a plan into this Plan.
(b) If such assets are allocable to current Participants in
the Plan, they shall be credited to Participants'
Accounts in accordance with applicable law, as directed
by the Committee. If such assets are allocable to an
individual who is not a Participant, such individual
shall be treated as a Participant only to the extent
necessary to administer this Plan with respect to such
assets.
(c) Any Participant for whom such a transfer, merger, or
consolidation is made shall be entitled to receive
amounts attributable to the benefits accrued under the
first plan in any optional form of payment available to
the Participant under that plan to the extent required by
Code Section 411(d)(6). Except as otherwise provided in
this Plan, optional forms of payment otherwise available
under this Plan shall also be available to such
Participant with respect to such amounts without regard
to whether such Participant was an Employee at any time.
For this latter purpose, amounts attributable to the
first plan shall be treated in the same manner as
analogous amounts attributable to this Plan. Except as
otherwise provided in this Plan, amounts attributable to
the first plan shall also be treated in the same manner
as analogous amounts attributable to this Plan for all
other purposes under this Plan,
39
<PAGE> 51
including, for example, Section (14) and Article VII.
(d) In the case of such a transfer, merger, or consolidation,
amounts attributable to the benefits accrued under the
first plan shall be held and administered in accordance
with applicable law. To the extent required to comply
with applicable law, the provisions of such first plan,
including without limitation provisions regarding
withdrawal restrictions and spousal consent to
Distributions, shall be incorporated by reference into
this Plan. On the other hand, provisions of such first
plan that are not required to comply with applicable law,
such as provisions regarding spousal consent to
Distributions under a plan to which Code Section
401(a)(11) does not apply, shall not be incorporated
herein by reference, but rather shall cease to apply
except as otherwise provided herein.
(e) Any contributions made under this Plan (along with income
earned under this Plan) shall be paid only in the
distribution forms available under Articles IV and IX,
and any distribution form available under the first plan
that is not available under this Plan shall be deemed to
be eliminated prospectively under this Plan, effective on
the day the transfer becomes effective.
(f) This Section (11) does not apply to any Rollover
Contribution to which Section (3) applies.
(12) NONDISCRIMINATION RULES:
This Section (12) shall only apply to the extent required by law.
(a) Contributions and forfeitures under the Plan shall
satisfy the actual deferral percentage test set forth in
Code Section 401(k)(3) and the contribution percentage
test set forth in Code Section 401(m)(2) (taking into
account all applicable rules as of the effective date of
such rules, including the rules under Code Section
401(m)(9) regarding multiple use of the alternative
limitation and the rules regarding aggregation of plans
and contributions), as incorporated herein by reference.
Any initial violation of the rule regarding multiple use
of the alternative limitation shall be deemed to be an
initial violation of the contribution percentage test
(rather than a violation of the actual deferral
percentage test) and accordingly shall be corrected in
the manner set forth in Section (12)(c).
(b) In the event that contributions under the Plan initially
fail to satisfy the actual deferral percentage test set
forth in Code Section 401(k)(3),
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<PAGE> 52
such failure shall be corrected by the distribution,
within the period set forth in Code Section 401(k)(8), of
Excess Contributions (adjusted by any income or loss
attributable to such Excess Contributions) to the
Participants to whom such Excess Contributions are
distributable under Code Section 401(k)(8). Any previous
distributions of Excess Deferral Amounts pursuant to
Section (13) shall be taken into account, in accordance
with applicable law, in determining the amount of Excess
Contributions for purposes of this Section (12)(b).
With respect to any Participant, the Excess Contributions
that are distributed shall be deemed to consist first of
Supplemental Before- Tax Contributions; and second, after
all such Supplemental Before-Tax Contributions have been
distributed, Basic Before-Tax Contributions.
Notwithstanding anything herein to the contrary, if a
Basic Before-Tax Contribution is distributed to a
Participant, the Matching Contribution allocated with
respect to such Basic Before-Tax Contribution shall be
forfeited except to the extent that such Matching
Contribution would be distributed pursuant to Section
(12)(c).
(c) In the event that contributions and forfeitures under the
Plan initially fail to satisfy the contribution
percentage test set forth in Code Section 401(m)(2), such
failure shall, except as otherwise provided in this
Section (12)(c), be corrected by the distribution, within
the period set forth in Code Section 401(m)(6), of Excess
Aggregate Contributions (adjusted by any income or loss
attributable to such Excess Aggregate Contributions) to
the Participants to whom such Excess Aggregate
Contributions are distributable under Code Section
401(m)(6). If a Forfeitable Matching Contribution would
be distributed under this Section (12)(c) but for this
sentence, such Matching Contribution shall be forfeited.
For purposes of the preceding sentence, a Forfeitable
Matching Contribution is a Matching Contribution that is
not vested under Article VII(2) as of the last day of the
Plan Year for which the Matching Contribution is
allocated.
(d) In the event that contributions and forfeitures under the
Plan initially fail to satisfy both the actual deferral
percentage test and the contribution percentage test, the
correction described in Section (12)(b) with respect to
the actual deferral percentage test shall apply first.
(e) For purposes of this Section (12), the determination of
the income or loss attributable to Excess Contributions
or Excess Aggregate Contributions shall be made in
accordance with Article VIII, provided that there shall
only be taken into account income or loss for the Plan
41
<PAGE> 53
Year to which the Excess Contribution or Excess Aggregate
Contribution (as the case may be) relates.
(f) Distributions under this Section (12) shall be made
notwithstanding any other provision of the Plan.
(g) Notwithstanding anything herein to the contrary, with
respect to any Plan Year, the Employing Companies may, in
their sole and absolute discretion, make QNECs. Any such
QNECs shall be allocated among the Accounts of all
Eligible Nonelective Contribution Employees in proportion
to their Compensation for the Plan Year, except to the
extent that the Employing Companies elect to allocate the
QNECs only among specific Employees that they designate.
Any such QNECs shall be taken into account for purposes
of applying this Section (12).
(h) For purposes of the tests in Code Sections 401(k)(3) and
401(m)(2) (taking into account all applicable rules as of
the effective dates of such rules, including the rules
under Code Section 401(m)(9) and the rules regarding the
aggregation of plans and contributions), as set forth in
this Section (12), Internal Revenue Service guidance that
has been or shall be issued under the applicable Code
Sections is hereby incorporated by reference, subject to
any applicable effective dates and transition rules
contained therein.
(13) LIMIT ON ELECTIVE DEFERRALS:
(a) With respect to any Participant, the sum, for a calendar
year, of (i) Before-Tax Contributions under this Plan,
and (ii) Elective Deferrals under all other plans,
contracts, or arrangements maintained by the Employer,
shall not exceed the limit in effect for such year under
Code Section 402(g).
(b) If, notwithstanding the prohibition in Section (13)(a), a
Participant has exceeded the limit on Elective Deferrals
set forth in Code section 402(g) for a calendar year, the
Participant may request a distribution of any or all of
his Excess Deferral Amount, adjusted by income or loss
attributable thereto for the calendar year. Such request
must be made in a manner prescribed by the Committee no
later than the following March 1. Such request shall
include the Participant's statement of the Participant's
Excess Deferral Amount and the portion of such Excess
Deferral Amount requested to be distributed from the
Plan. The Committee may require further information or
evidence from the Participant to establish the foregoing.
However, with respect to an Excess Deferral Amount that
exists taking into account solely
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<PAGE> 54
Elective Deferrals under plans, contracts, and
arrangements of the Employer, the Employer may submit the
request to the Committee and such request may be
submitted on or before the following April 15.
Any Excess Deferral Amount for which a request is
properly submitted under the preceding paragraph, and the
income or loss attributable thereto for the calendar year
to which the Excess Deferral Amount relates, shall be
distributed no later than April 15 of the immediately
succeeding calendar year, notwithstanding any other
provisions of the Plan. The determination of income or
loss attributable to Excess Deferral Amounts shall be
made in accordance with Article VI.
A distribution made under this Section (13)(b) may be
made prior to the expiration of the calendar year to
which the excess deferral relates, but in no event
earlier than the date on which the Plan received the
excess deferral.
Any distribution made under this Section (13)(b) shall be
designated in a manner prescribed by the Committee as a
distribution of excess deferrals; the request submitted
by the Participant or the Employer shall be deemed to be
a designation by the Participant of the distribution as a
distribution of excess deferrals.
The Excess Deferral Amount shall be reduced in accordance
with Treasury Regulation Section 1.402(g)-1(e)(6) (or any
applicable successor provision).
(14) MAXIMUM ADDITIONS:
(a) Notwithstanding anything contained herein to the
contrary, the Annual Addition of a Participant for any
Plan Year shall not exceed the limits set forth under
Code Sections 415(c)(1) and 415(d).
(b) If a Participant's projected Annual Addition for a Plan
Year would exceed the limitations of subsection (a), the
necessary reductions in Annual Additions shall be made
pursuant to Article III(15) and in the following order:
first, under this Plan, and secondly, under any other
Defined Contribution Plan. Any reductions required under
this Plan to satisfy the limitations of subsection (a)
shall be made first, by reducing the amount of the
Participant's Supplemental Before-Tax Contributions;
second, by reducing the amount of the Participant's Basic
Before-Tax Contributions, which shall similarly reduce
the amount of related Matching Contributions; third, by
reducing the
43
<PAGE> 55
Participant's Nonelective Contributions that are a part
of the Profit-Sharing Component; fourth, by reducing the
Participant's Nonelective Contributions that are a part
of the Stock Bonus Component; and fifth, by reducing the
Participant's Nonelective Contributions that are part of
the Money Purchase Pension Component.
(c) With respect to a Plan Year, if a Participant has at any
time been a Participant in any Defined Benefit Plan
maintained by the Employer, the sum of the Defined
Benefit Plan Fraction and the Defined Contribution Plan
Fraction for such Participant shall not exceed the limit
(if applicable with respect to such Plan Year) set forth
in Code Sections 415(e) and 415(d) (including any
applicable transition rules under Code Section 415(e)).
If the limitations of this subsection (c) are exceeded,
the Participant's projected annual benefit under the
Defined Benefit Plan shall be reduced in accordance with
the terms thereof to the extent necessary to satisfy this
limit. If after such reduction, the limitations of this
subsection (c) are still exceeded, then the Participants'
Annual Addition will be reduced to the extent necessary
in accordance with subsection (b) or (d) (as applicable).
(d) If, notwithstanding subsections (a) through (c), the
Annual Addition to a Participant's Account for any Plan
Year would cause the limitations contained in subsection
(a) or (c) to be exceeded as a result of the allocation
of forfeitures, a reasonable error in estimating a
Participant's Compensation, a reasonable error in
determining the amount of Elective Deferrals that may be
made with respect to any Participant under the limits of
Code Section 415, or other circumstances which the
Internal Revenue Service deems sufficient to invoke the
rules of this provision, then such Annual Addition shall
be reduced, but only to the extent necessary to satisfy
such limitations, in the following manner and in the
following order:
(i) The first reduction shall consist of
Supplemental Before-Tax Contributions
included in such Annual Addition, which
together with any earnings attributable
thereto, shall be returned to such
Participant.
(ii) The second reduction shall consist of Basic
Before-Tax Contributions included in such
Annual Addition, which, together with any
earnings attributable thereto, shall be
returned to such Participant; and the
Participant's Account shall also be reduced
by the amount of related Matching
Contributions, including any earnings
attributable thereto.
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<PAGE> 56
(iii) The third reduction shall consist of
Nonelective Contributions that are part of
the Profit-Sharing Component and that are
included in such Annual Addition (and any
earnings attributable thereto).
(iv) The fourth reduction shall consist of
Nonelective Contributions that are a part
of the Stock Bonus Component and that are
included in such Annual Addition (and any
earnings attributable thereto).
(v) The fifth reduction shall consist of
Nonelective Contributions that are a part
of the Money Purchase Pension Component and
that are included in such Annual Addition
(and any earnings attributable thereto).
(e) Any reduction of Matching Contributions or Nonelective
Contributions under subsection (d)(ii), (iii), (iv), or
(v), shall be treated in accordance with Treasury
Regulation Section 1.415-6(b)(6)(ii) (or any applicable
successor provision).
(f) For purposes of applying this Section (14), a
Participant's compensation shall be such Participant's
Section 415 Compensation.
(15) COMPLIANCE:
Notwithstanding anything herein to the contrary, the Committee shall,
on a prospective basis, reject any election under Section (2) or
reduce the amount of Before-Tax Contributions elected (and the
corresponding Matching Contributions), even if such election has
already become effective, to the extent that the Committee, in its
sole and absolute discretion, deems it necessary or appropriate to
ensure that contributions under the Plan comply with the rules set
forth in Sections (12), (13), or (14), or otherwise to ensure the
Plan's qualified status or to ensure that the Plan's cash or deferred
arrangement is qualified under Code Section 401(k).
The Committee's authority under the preceding paragraph to reject or
reduce an election based on the rules set forth in Section (12) or on
other nondiscrimination rules shall apply not only to Highly
Compensated Employees but also to Eligible Employees that the
Committee considers in its sole and absolute discretion to be
similarly situated. For example, an individual who is first employed
by the Employer in the current Plan Year may not be a Highly
Compensated Employee but the Committee may, in its sole and absolute
discretion, consider him to be similarly situated with respect to
Highly Compensated Employees if, inter alia,
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<PAGE> 57
such individual's rate of base pay equals or exceeds the dollar
amount in effect in the preceding Plan Year under Code Section
414(q)(1)(B)(i).
Any reduced election under the first paragraph of this Section (15)
shall be subject to all otherwise applicable requirements, including
those set forth in Section (1)(b), provided that a reduced election
attributable to the limits set forth in Sections (13)(a) or (14)
shall only be subject to such requirements to the extent required by
law.
All acts of the Committee under this Section (15) shall be made in a
manner permitted under the Code and ERISA.
(16) HIGHLY COMPENSATED EMPLOYEE STATUS:
Notwithstanding anything herein to the contrary, for purposes of all
provisions of the Code that refer to the definition of "highly
compensated employee" contained in Code Section 414(q), the
definition in this Plan of "highly compensated employee" shall be the
definition contained in Article I(60).
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ARTICLE IV
WITHDRAWALS
(1) HARDSHIP WITHDRAWALS:
(a) (i) A Participant may, on account of hardship,
withdraw any portion of his Account
attributable to (A) Rollover Contributions,
(B) Before-Tax Contributions (but not the
earnings credited thereto as of a date on
or after January 1, 1989), or (C) Matching
Contributions. A Participant shall be
deemed to have incurred a hardship only if
he demonstrates to the satisfaction of the
Committee that the distribution is on
account of an immediate and heavy financial
need of the Participant and is necessary to
satisfy the need. The amount withdrawn may
not exceed the portion of the Participant's
Account attributable to the amounts
described in the first sentence of this
subsection (a)(i) reduced by any previous
withdrawals and outstanding loans with
respect to such amounts. In determining
the existence of a hardship and the amount
required to be distributed to meet the need
created by the hardship, the Committee
shall act on the basis of such information
and evidence as it shall require from the
Participant.
(ii) Any withdrawal under this Section (1) shall
be made: first, from the portion of his
Account attributable to Rollover
Contributions; second, from the portion of
his Account equal to the earnings credited
as of December 31, 1988 attributable to
Before-Tax Contributions; third, from the
portion of his Account equal to
Supplemental Before-Tax Contributions;
fourth, from the portion of his Account
equal to Basic Before-Tax Contributions;
and fifth, from the portion of his Account
attributable to Matching Contributions.
(b) A request for a withdrawal will be considered to be on
account of an immediate and heavy financial need if the
withdrawal is for:
(i) unreimbursable expenses for medical care
(as defined in Code Section 213(d))
previously incurred by the Participant, the
Participant's spouse, or any dependents (as
defined in Code Section 152) of the
Participant, or
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necessary for these persons to obtain
medical care described in Code Section
213(d);
(ii) costs directly related to the purchase of a
principal residence for the Participant
(excluding mortgage payments);
(iii) payments for tuition, related educational
fees, and room and board expenses for the
next 12 months of post-secondary education
for the Participant or the Participant's
spouse, children, or dependents (as defined
in Code Section 152); or
(iv) payments necessary to prevent the
Participant's eviction from his principal
residence or foreclosure on the mortgage on
the Participant's principal residence.
(c) A withdrawal will be considered necessary to satisfy an
immediate and heavy financial need if:
(i) the distribution is not in excess of the
amount of the immediate and heavy financial
need (including, to the extent requested by
the Participant, any amounts necessary to
pay any income taxes or penalties
reasonably anticipated to result from the
distribution); and
(ii) the Participant has obtained all
distributions, other than hardship
distributions, and all nontaxable (at the
time of the loan) loans currently available
under all plans maintained by the Employer.
(d) In the event of a hardship withdrawal by a Participant
under this Section (1):
(i) the sum, for the following taxable year, of
the Before-Tax Contributions made on behalf
of the Participant under the Plan and other
elective before-tax contributions made on
behalf of the Participant under any other
plan maintained by the Employer shall not
exceed the applicable limit under Code
Section 402(g) for such following year,
reduced by the sum, for the year in which
the hardship withdrawal was made, of the
Participant's Before-Tax Contributions and
other elective before-tax contributions
made on behalf of the
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Participant under any other plan maintained
by the Employer; and
(ii) until the end of the twelve-month period
beginning on the date of such hardship
withdrawal, the Participant shall not be
permitted to make Before-Tax Contributions
to the Plan or to make elective before-tax
contributions or employee after-tax
contributions to any other plan maintained
by the Employer. For purposes of this
subsection (d)(ii), the term "any other
plan maintained by the Employer" shall mean
any qualified or nonqualified plan of
deferred compensation maintained by the
Employer and shall include a stock option,
stock purchase, or similar plan, or a cash
or deferred arrangement that is part of a
cafeteria plan (within the meaning of Code
Section 125) but shall not include a
mandatory employee contribution portion of
a defined benefit plan or a health or
welfare benefit plan (including one that is
part of a cafeteria plan within the meaning
of Code Section 125).
(e) With respect to any Participant, a hardship withdrawal
may only be made under this Section (1) in a Plan Year
if:
(i) The amount of such hardship withdrawal
equals or exceeds the lesser of (A) $1,000
or (B) the portion of the Participant's
Account attributable to (I) Rollover
Contributions, (II) Before-Tax
Contributions (but not the earnings
credited thereto as of a date on or after
January 1, 1989), and (III) Matching
Contributions, and
(ii) The Participant has not previously received
a withdrawal under this Section (1) during
the same Plan Year.
(2) WITHDRAWALS AFTER AGE 59 1/2:
(a) (i) Any Participant who has attained the age of
59 1/2 may withdraw any portion of his
Account attributable to (1) Rollover
Contributions, (2) Before-Tax
Contributions, and (3) Matching
Contributions.
(ii) Any withdrawal under this Section (2) shall
be made: first, from the portion of his
Account attributable to amounts described
in Article IV(1)(a) (applying the
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ordering rules of Article IV(1)(a)(ii));
and second, from the earnings credited as
of a date on or after January 1, 1989
attributable to Before-Tax Contributions.
(b) With respect to any Participant, a withdrawal may only be made
under this Section (2) if no withdrawal has been made under
this Section (2) within the immediately preceding six months.
(3) PROCEDURE FOR WITHDRAWAL:
A Participant may withdraw amounts under this Article IV only upon
following procedures established by the Committee. Withdrawals shall
be distributed within an administratively reasonable time after
completion of such procedures and, in the case of a withdrawal on
account of hardship, the determination of a hardship in accordance
with the Plan's normal processing standards. In the event that the
portion of the Participant's Account from which the withdrawal is
made (as set forth in Sections (1)(a)(ii) and (2)(a)(ii)) is invested
in more than one Investment Fund at the time of any withdrawal, the
amount withdrawn shall be charged to each Investment Fund in
proportion to the value of the investment of such portion of his
Account in such Investment Fund on such processing date, provided
that if the Participant specifically designates the Investment Funds
to be charged, the amount withdrawn shall be charged to Investment
Funds in accordance with the Participant's designation. For purposes
of the preceding sentence, a retirement account described in Article
VIII(2)(c)(ii)(B) shall be treated as an Investment Fund. Any amount
distributed under this Article IV shall be distributed in cash,
provided that with respect to amounts withdrawn from the ESOP
Feature, the Participant may elect to have all or part of such
distribution made in Shares (with fractional Shares paid in cash).
(4) VALUATION PROCEDURES:
Each withdrawal under this Article IV shall be charged to the
Participant's Account on the day on which the withdrawal request is
processed in accordance with the Plan's procedures.
(5) SPECIAL RULES FOR AMOUNTS ATTRIBUTABLE TO PREDECESSOR PLANS:
The following rules shall apply with respect to withdrawals under
this Article IV:
(a) All withdrawals by a Participant under Article IV shall,
to the extent consistent with the terms of this Plan, be
made first from amounts attributable to the Predecessor
Plans with respect to such Participant until all such
amounts have been withdrawn.
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(b) Amounts withdrawn from the portion of a Participant's
Account attributable to a Predecessor Plan shall be
withdrawn under the ordering rules applicable under such
Predecessor Plan, which rules are incorporated herein by
reference.
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ARTICLE V
TRUST FUND
(1) CONTRIBUTIONS AND ASSETS:
(a) All contributions under the Plan shall be paid into the
Trust.
(b) Contributions made by an Employing Company to provide
Matching Contributions and Nonelective Contributions for
a Plan Year shall be paid to the Trust by such Employing
Company at the time or times determined by the Employing
Company in its sole and absolute discretion, provided
that such payments shall be made no later than the time
prescribed by law (including extensions) for filing the
federal income tax return with respect to the Employing
Company for the taxable year of the Employing Company
with or within which the Plan Year ends. Before-Tax
Contributions shall be transferred to the Trust Fund
within the time period required by law.
(c) The Trust Fund will be held, invested, and disbursed by
the Trustee acting in accordance with the provisions of
the Plan and the Trust Agreement, provided that in the
case of any conflict or other inconsistency between the
Plan and the Trust Agreement, the Plan shall control.
All benefits payable hereunder will be paid from the
Trust Fund.
(d) Notwithstanding anything herein to the contrary, to the
extent provided in the Trust Agreement, some or all of
the Trust Fund may be held in a group trust, provided
that the group trust and the group trust instrument
satisfy all applicable requirements such that:
(i) The group trust is exempt from taxation
under Code Section 501(a) with respect to
its funds that equitably belong to
participating trusts described in Code
Section 401(a), and
(ii) The status of individual trusts as
qualified under Code Section 401(a) and
exempt from taxation under Code Section
501(a) will not be affected by the pooling
of their funds in the group trust.
In the event that any part of the Trust Fund is held in a
group trust pursuant to this subsection (d), (A) the
group trust instrument is adopted as a part of this Plan
with respect to such part of the Trust
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Fund, and (B) all references in this Plan to the Trust,
Trust Agreement, or the Trustee shall be deemed to be
references to the group trust, the group trust agreement,
or the group trust trustee to the extent indicated by the
context and consistent with the terms of the group trust
instrument.
(2) TRUST FUND:
(a) Except as otherwise provided herein, the Committee may,
in its sole and absolute discretion, from time to time
appoint an Investment Manager or Managers or name a
fiduciary to direct the Trustee with respect to the
investment of all or any part of the Trust Fund. The
Trust Fund is for the exclusive benefit of Participants
and their Beneficiaries, provided that it may also be
used (i) to pay any reasonable expenses (including
Trustee fees and expenses) arising from the
administration and operation of the Plan and Trust
(including reimbursement of the Employing Companies for
their advancement of any such expenses), and (ii) for any
other purpose permitted by ERISA, the Code, and other
applicable laws.
(b) No person shall have any interest in or right to the
Trust Fund or any part thereof, except as expressly
provided in the Plan.
(c) No liability for payments under the Plan shall be imposed
upon the Committee, the Corporation, the Employing
Companies, the Employer, or the employees, officers,
directors, or stockholders of any of the foregoing,
except as, and only to the extent, expressly provided by
law, and none of the foregoing nor any fiduciary
guarantees against investment loss or asset depreciation.
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ARTICLE VI
ESOP PROVISIONS
(1) INVESTMENT OF ESOP CONTRIBUTIONS:
ESOP Contributions shall be wholly invested in the ESOP Fund, except
as otherwise provided by reason of an investment under Section (5).
(2) ACQUISITION LOANS:
The Corporation may direct the Trustee to incur one or more
Acquisition Loans from time to time to finance the acquisition of
Leveraged Shares or to repay a prior Acquisition Loan.
(3) RELEASE OF COMPANY STOCK FROM LOAN SUSPENSE ACCOUNTS:
(a) The Employing Companies shall contribute an amount
sufficient to enable the Trustee to pay any currently
maturing obligation under an Acquisition Loan, without
regard to the Employing Companies' accumulated earnings
and profits, but taking into account any use of Allocated
Dividends to make payments on the Acquisition Loan under
Section (6).
(b) Any Leveraged Shares shall initially be credited to the
Loan Suspense Account and shall be released from such
Loan Suspense Account in accordance with Treasury
Regulation Section 54.4975-7(b)(8)(i) (or any applicable
successor provision). Notwithstanding the foregoing, in
the event that an Acquisition Loan is repaid with the
proceeds of a subsequent Acquisition Loan ("Substitute
Loan"), such repayment shall not operate to release all
such Shares from the Loan Suspense Account, but, rather,
such release shall be based on the application of
Treasury Regulation Section 54.4975-7(b)(8)(i) (or any
applicable successor provision) to such Substitute Loan.
(c) If at any time there is more than one Acquisition Loan
outstanding, separate accounts shall be established under
the Loan Suspense Account for each such Acquisition Loan.
Each Acquisition Loan for which a separate account is
maintained shall be treated separately for purposes of
the provisions governing the release of Shares from the
Loan Suspense Account under this Section (3).
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(d) If Allocated Dividends are used under Section (6) to make
principal and/or interest payments on an Acquisition
Loan, as soon as administratively reasonable following
the release of Leveraged Shares from the Loan Suspense
Account as a result of such payments, all or a portion of
the total number of Shares so released shall be allocated
to Participants' Accounts under Section (6). The Shares
released by reason of the use of Unallocated Dividends to
repay an Acquisition Loan shall be allocated among
Accounts pursuant to subsection (e) below.
(e) This subsection (e) shall apply to all Leveraged Shares
that have been released from the Loan Suspense Account as
a result of loan amortization payments made during the
Plan Year other than such Leveraged Shares that will be
allocated pursuant to Section (6).
(i) This paragraph (i) shall apply to Leveraged
Shares to which this subsection (e) applies
and that have been released from the Loan
Suspense Account as a result of loan
amortization payments that are made during
the Plan Year and that would have been made
during the Plan Year if no Acquisition
Loans had been made on or after October 1,
1998. Such Leveraged Shares shall be
allocated with respect to such Plan Year
and only on behalf of Eligible Nonelective
Contribution Employees. For any Plan Year,
the portion of such Leveraged Shares
allocated to the Account of an Eligible
Nonelective Contribution Employee shall
bear the same relationship to the total
number of all Leveraged Shares allocated
under this paragraph (i) as the Eligible
Nonelective Contribution Employee's
Compensation for the Plan Year bears to the
total Compensation of all Eligible
Nonelective Contribution Employees for the
Plan Year, provided that allocations under
this paragraph (i) shall be subject to the
limits and provisions of Article III.
(ii) (A) This paragraph (ii) shall apply
to all Leveraged Shares to which
this subsection (e) applies other
than the Leveraged Shares to
which paragraph (i) applies.
Except as otherwise provided in
this Plan, for any Plan Year,
such Leveraged Shares shall be
used to provide the Interim
Supplemental Contributions
described in Article III(6) and
the Grandfathered AmVestors
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Supplemental Contributions described in
Article III(7).
(B) To the extent that the Leveraged
Shares to which this paragraph
(ii) applies are not sufficient
to provide all Interim
Supplemental Contributions and
all Grandfathered AmVestors
Supplemental Contributions
described in Article III(6) and
(7) for a Plan Year, the portion
of such Leveraged Shares used to
provide Interim Supplemental
Contributions shall bear the same
relationship to the total of the
Leveraged Shares to which this
paragraph (ii) applies as the
value of all Interim Supplemental
Contributions for the Plan Year
bears to the sum of the value of
all Interim Supplemental
Contributions and all
Grandfathered AmVestors
Supplemental Contributions for
the Plan Year. For any Plan
Year, the number of Leveraged
Shares allocated under this
paragraph (ii)(B) to any Interim
Benefit Supplement Employee shall
bear the same relationship to the
total number of Leveraged Shares
allocated under this paragraph
(ii)(B) as the value of the
Interim Supplemental Contribution
for such Interim Benefit
Supplement Employee bears to the
total value of all Interim
Supplemental Contributions for
all Interim Benefit Supplement
Employees.
(C) To the extent that the Leveraged
Shares to which this paragraph
(ii) applies are not sufficient
to provide all Interim
Supplemental Contributions and
all Grandfathered AmVestors
Supplemental Contributions
described in Article III(6) and
(7) for a Plan Year, the portion
of such Leveraged Shares used to
provide Grandfathered AmVestors
Supplemental Contributions shall
bear the same relationship to the
total of the Leveraged Shares to
which this paragraph (ii) applies
as the value of all Grandfathered
AmVestors Supplemental
Contributions for the Plan Year
bears to the sum of the value of
all Interim Supplemental
Contributions and all
Grandfathered AmVestors
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Supplemental Contributions for
the Plan Year. For any Plan
Year, the number of Leveraged
Shares allocated under this
paragraph (ii)(C) to any
Grandfathered AmVestors Employee
shall bear the same relationship
to the total number of Leveraged
Shares allocated under this
paragraph (ii)(C) as the value of
the Grandfathered AmVestors
Supplemental Contribution for
such Grandfathered AmVestors
Employee bears to the total value
of all Grandfathered AmVestors
Supplemental Contributions for
all Grandfathered AmVestors
Employees.
(D) To the extent that the value of
the Leveraged Shares to which
this paragraph (ii) applies
exceeds the value of all Interim
Supplemental Contributions and
Grandfathered AmVestors
Supplemental Contributions for a
Plan Year, such Leveraged Shares
shall be used, under principles
similar to those set forth in
paragraph (ii)(B) and (C), to
provide Matching Contributions
for such Plan Year to the extent
such Matching Contributions have
not been previously provided.
(E) For a Plan Year, to the extent
that the number of Leveraged
Shares to which this paragraph
(ii) applies exceeds the number
of Leveraged Shares used under
subparagraphs (A), (B), (C), and
(D), such excess Leveraged Shares
shall be allocated with respect
to such Plan Year and only on
behalf of Eligible Nonelective
Contribution Employees. For any
Plan Year, the portion of such
Leveraged Shares allocated to the
Account of an Eligible
Nonelective Contribution Employee
shall bear the same relationship
to the total number of all
Leveraged Shares allocated under
this subparagraph (E) as the
Eligible Nonelective Contribution
Employee's Compensation for the
Plan Year bears to the total
Compensation of all Eligible
Nonelective Contribution
Employees for the Plan Year,
provided that allocations under
this
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subparagraph (E) shall be subject
to the limits and provisions of
Article III.
(f) All Leveraged Shares that have not been released from the
Loan Suspense Account shall be invested in the ESOP Fund.
(4) PUT OPTION:
(a) Except as provided in Treasury Regulation Section
54.4975-7(b)(9) (or any applicable successor provision)
and subsection (b), or as otherwise required by law, no
securities acquired with the proceeds of an Acquisition
Loan may be subject to a put, call, or other option, or
buy-sell or similar arrangement while held by and when
distributed from the Plan, whether or not the Plan at
that time contains an ESOP Feature.
(b) A Share acquired with the proceeds of an Acquisition Loan
must be subject to a put option if the Share is not
readily tradable on an established market (within the
meaning of Code Section 409(h)). Such put options shall
be subject to the provisions of this Section (4) and,
notwithstanding anything herein to the contrary, all
other applicable provisions of law. The put option must
be exercisable only by a participant, by the
participant's donees, or by a person (including an estate
or its distributee) to whom the security passes by reason
of a participant's death. (Under this subsection (b),
"participant" means a participant and beneficiaries of
the participant under the ESOP Feature.) The put option
must permit a participant to put the security to the
Corporation. Under no circumstances may the put option
bind the Plan. However, it shall grant the Plan an option
to assume the rights and obligations of the Corporation
at the time that the put option is exercised. If it is
known at the time a loan is made that Federal or state
law will be violated by the Corporation's honoring such
put option, the put option must permit the security to be
put, in a manner consistent with such law, to a third
party (e.g., an affiliate of the Corporation's or a
shareholder other than the Plan) that has substantial net
worth at the time the loan is made and whose net worth is
reasonably expected to remain substantial.
(c) A put option described in subsection (b) shall be
exercisable during the 60-day period which begins on the
date the security subject to the put option is
distributed by the Plan. If such a put option is not
exercised within such 60- day period, the put option
shall be exercisable for an additional 60-day period in
the following plan year, in accordance with applicable
law.
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(d) The provisions of this subsection (d) shall apply to a
put option described in subsection (b).
(i) A put option is exercised by the holder
notifying the Corporation in writing that
the put option is being exercised.
(ii) The period during which a put option is
exercisable does not include any time when
a distributee is unable to exercise it
because the party bound by the put option
is prohibited from honoring it by
applicable Federal or state law.
(iii) The price at which a put option must be
exercisable is the value of the security,
determined in accordance with Treasury
Regulation Section 54.4975-11(d)(5) (or
any applicable successor provision), Code
Section 401(a)(28)(C), and other applicable
laws.
(iv) The provisions for payment under a put
option must meet the following
requirements:
(A) In the case of a distribution
within 1 taxable year to the
recipient of the balance to the
credit of the recipient's
Account, there must be adequate
security and a reasonable
interest rate with respect to any
deferral of payments and payments
must be made at least as rapidly
as substantially equal periodic
payments (not less frequently
than annually) over a period
beginning within 30 days after
the date the put option is
exercised and ending not more
than 5 years after such date.
(B) In the case of a distribution not
subject to subparagraph (A),
payment under the put option must
be completed within 30 days after
the date the put option is
exercised.
(v) Payment under a put option may be
restricted by the terms of a loan,
including one used to acquire a security
subject to a put option, made before
November 1, 1977. Otherwise, payment under
a put option must not be restricted by the
provisions of a loan or any other
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arrangement, including the terms of the
employer's articles of incorporation,
unless so required by applicable state law.
(e) Except as otherwise permitted in Treasury Regulation
Section 54.4975-11(a)(3)(ii) (or any applicable successor
provision), the protections and rights described in
subsections (a) through (d) are nonterminable and thus
shall continue to exist if the Acquisition Loan is repaid
or the Plan ceases to contain an ESOP Feature.
(5) DIVERSIFICATION RIGHTS:
(a) With respect to a Qualified Participant, during the
90-day period immediately following the close of each
Plan Year in the Qualified Election Period, the Qualified
Participant shall be entitled to one election to invest
the Diversification Portion of his Diversification
Account in any Fund other than the ESOP Fund. Except as
otherwise provided in rules prescribed by the Committee,
such election shall be made under the rules of Article
VIII. Any amount that has been reinvested in a Fund other
than the ESOP Fund pursuant to this Section (5) may be
further reinvested in other Funds under the generally
applicable rules of Article VIII.
(b) Any amount that is reinvested in an Investment Fund other
than the ESOP Fund pursuant to this Section (5) is, by
virtue of such reinvestment, transferred from the Stock
Bonus Component to the Profit-Sharing Component.
(c) This Section (5), and the definitions of the terms used
herein, are intended to comply with Code Section
401(a)(28) and shall be interpreted accordingly.
(6) DIVIDENDS ON SHARES:
(a) (i) Allocated Dividends with respect to Shares
in the Company Stock Fund shall be retained
in the Account of the applicable
Participant, subject to the otherwise
applicable provisions of this Plan.
(ii) Allocated Dividends with respect to Shares
in the ESOP Fund shall, in the sole and
absolute discretion of the Corporation, be,
in whole or in part, (A) retained in the
Account of the applicable Participant,
subject to the
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otherwise applicable provisions of this
Plan, or (B) used, consistent with Code
Section 404(k) and to the extent permitted
by law, to make principal and/or interest
payments on an Acquisition Loan. The
Corporation may determine how Allocated
Dividends with respect to Shares in the
ESOP Fund may be applied up to the time
when the dividends are finally allocated to
the Accounts of Participants. Dividends
may not be used for payment of an
Acquisition Loan unless, without regard to
Matching Contributions or Nonelective
Contributions, Company Stock allocated in a
Plan Year to the Account of each
Participant who would have otherwise been
credited with the value of such dividends
has a fair market value not less than the
amount of such dividends that would have
been otherwise allocated in such Plan Year
for the benefit of the Participant.
Accordingly, if Allocated Dividends are
used to make principal and/or interest
payments on an Acquisition Loan, Company
Stock released in a Plan Year pursuant to
such payments (and pursuant to
contemporaneous and subsequent payments, if
necessary) shall be allocated under this
Section (6) to Participants whose Accounts
would otherwise have been credited with
such Allocated Dividends until allocations
of Company Stock in the Plan Year with
respect to each such Participant (without
regard to Matching Contributions or
Nonelective Contributions) equal the amount
of Allocated Dividends that would have been
credited to his Account in the Plan Year
(such allocations to be made on a pro rata
basis until the total amount required is
allocated).
(b) An Allocated Dividend shall be treated as made with
respect to a Share in the ESOP Fund if and only if such
Share were held in the ESOP Fund on the record date for
such Allocated Dividend. Correspondingly, an Allocated
Dividend shall be treated as made with respect to a Share
in the Company Stock Fund if and only if such Share were
held in the Company Stock Fund on the record date for
such Allocated Dividend.
(c) Unallocated Dividends may , in the sole and absolute
discretion of the Corporation, be used, in whole or in
part, to repay an Acquisition Loan the proceeds of which
were used to acquire the Leveraged Shares to which the
Unallocated Dividends relate. The Leveraged Shares
released from the Loan Suspense Account due to any such
repayment shall be allocated as described under Section
(3).
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(7) VALUATION OF COMPANY STOCK:
For purposes of this Plan, Company Stock shall be valued in such
manner and as of each Valuation Date or such other dates as may be
prescribed by the Committee in its sole and absolute discretion,
provided that such valuation shall comply with applicable law.
(8) TENDER/VOTING OF COMPANY STOCK:
(a) Tender for Stock. All tender or exchange decisions with
respect to Company Stock held in the Plan shall be made
in accordance with the following provisions of this
Section (8):
(i) In the event an offer is received by the
Plan (including a tender offer for Shares
subject to Section 14(d)(1) of the
Securities Exchange Act of 1934 or subject
to Rule 13e-4 promulgated under that Act,
as those provisions may from time to time
be amended) to purchase or exchange Shares
held by the Plan (an "Offer"), the
Committee will notify each Participant who
has part or all of his Account invested in
the ESOP Fund or the Company Stock Fund of
the terms of the Offer as soon as
practicable after its commencement and will
furnish each Participant with a form by
which he may instruct the Trustee
confidentially whether or not to tender or
exchange Shares allocated to his
Participant's Account. The materials
furnished to the Participants shall include
(A) a notice from the Committee that the
Trustee will not tender or exchange Shares
(allocated or unallocated) for which timely
instructions are not received by the
Trustee and (B) related documents provided
generally to the shareholders of the
Corporation pursuant to the Securities
Exchange Act of 1934. The Committee and
the Trustee may also provide Participants
with such other material concerning the
Offer as the Trustee or the Committee in
its sole and absolute discretion determine
to be appropriate, provided, however, that
prior to any distribution of materials by
the Committee, the Trustee shall be
furnished with complete copies of all
materials. The Corporation and the
Committee will cooperate with the Trustee
to ensure that Participants receive the
requisite information in a timely manner.
Notwithstanding anything contained herein
to the contrary, in the event an Offer is
issued by a person or
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entity other than the Corporation, prior to
distributing materials under this Section
(8), the Committee may require that the
issuer advance sufficient funds as are
necessary to cover the cost of the
distributing materials to, and soliciting
responses from, Participants.
(ii) The Trustee shall tender or not tender
Shares or exchange Shares allocated to a
Participant's Account (including fractional
Shares to 1/10th of a Share) only to the
extent instructed by the Participant. If
tender or exchange instructions for Shares
allocated to a Participant's Account are
not timely received by the Trustee, the
Trustee will treat non-receipt as a
direction not to tender or exchange such
Shares.
(iii) A Participant who has ESOP Stock allocated
to his Participant's Account and who is
entitled to direct the Trustee whether or
not to tender or exchange Shares allocated
to his Participant's Account shall
separately direct the Trustee with respect
to the tender or exchange of a portion of
the Shares that are not allocated to any
Participant's Account. Such direction
shall be with respect to the number of
unallocated Shares multiplied by a
fraction, the numerator of which is the
number of Shares of ESOP Stock allocated to
the Participant's Account and the
denominator of which is the total number of
Shares of ESOP Stock allocated to the
Accounts of all Participants. Fractional
Shares shall be rounded to the nearest
1/10th of a Share. If tender or exchange
instructions for Shares not allocated to a
Participant's Account are not timely
received by the Trustee, the Trustee will
treat non-receipt as a direction to not
tender or exchange such Shares.
(iv) In the event, under the terms of an Offer
or otherwise, any Shares tendered for sale
or exchange pursuant to such Offer may be
withdrawn from such Offer, the Trustee
shall follow instructions respecting the
withdrawal of the securities from the Offer
in the same manner and the same proportion
as shall be timely received by the Trustee
from the Participants entitled under this
Section (8) to give instructions for the
sale or exchange of securities pursuant to
such Offer.
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(v) (A) In the event that an Offer for
fewer than all of the Shares held
by the Plan is received, a
Participant who has been
allocated Shares subject to such
Offer shall be entitled to direct
the Trustee as to the acceptance
or rejection of the Offer (as
provided by paragraphs (i)-(iv)
of this Section (8)(a)) with
respect to the largest portion of
the Company Stock allocated to
his Participant's Account as may
be possible, given the total
number or amount of Shares that
may be sold or exchanged pursuant
to the Offer, based upon the
instructions received from all
other Participants who timely
submit instructions pursuant to
this Section (8) to sell or
exchange Shares pursuant to such
Offer, each on a pro rata basis
in accordance with the number or
amount of such Shares allocated
to the Participant's Account that
the Participant instructs the
Trustee to tender or exchange.
(B) In the case of an Offer described
in subparagraph (A), the
provisions of paragraph (iii)
shall apply to the portion of the
Shares that are not allocated to
any Participant's Account, except
that the reference in the second
sentence of paragraph (iii) to
"the number of unallocated
Shares" shall be deemed to be
instead a reference to the excess
(if any) of (I) the number of
Shares for which the Offer is
made (the "Number of Offer
Shares") over (II) the number of
Shares for which there has been
an acceptance under subparagraph
(A) (the "Number of Allocated
Shares Accepted"). This
subparagraph (B) shall apply if
and only if the Number of Offer
Shares exceeds the Number of
Allocated Shares Accepted.
(vi) In the event an Offer is received and
instructions are solicited from
Participants pursuant to paragraphs (i)-(v)
of this Section (8)(a) regarding such
Offer, and prior to termination of such
Offer, another Offer is received by the
Plan for the securities subject to the
first Offer, the Committee shall use its
best efforts under the circumstances to
solicit instructions from the Participants
(A) with respect to securities tendered for
sale or exchange
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pursuant to the first Offer, whether to
withdraw such tender, if possible, and, if
withdrawn, whether to tender securities
withdrawn for sale or exchange pursuant to
the second Offer and (B) with respect to
securities not tendered for sale or
exchange pursuant to the first Offer,
whether to tender such securities for sale
or exchange pursuant to the second Offer.
The Trustee shall follow all instructions
received in a timely manner from
Participants in the same manner and in the
same proportion as provided in paragraphs
(i)-(v) of this Section (8)(a). With
respect to any further Offer for any
Company Stock received by the Plan and
subject to any earlier Offer (including
successive Offers from one or more existing
offerors), the Committee and the Trustee
shall act in the same manner as described
above.
(vii) A Participant's instructions to tender or
exchange Shares will not be deemed a
withdrawal or suspension from the Plan or a
forfeiture of any portion of the
Participant's interest in the Plan.
Participants are designated Named
Fiduciaries for purposes of making tender
or exchange decisions with respect to (A)
Shares in their Diversification Account,
and (B) Shares that are not allocated to
any Participant's Account.
(viii) Cash received in exchange for tendered
Shares will be credited to the Account of
the Participant whose Shares were tendered
or the Loan Suspense Account from which
Shares were tendered and will, pursuant to
directions from the Committee, be used by
the Trustee to purchase Company Stock, as
soon as practicable. In the interim, the
Trustee will, pursuant to directions from
the Committee, invest such cash in
short-term investments permitted under the
Trust.
(ix) The instructions received by the Trustee
from Participants shall be held by the
Trustee in strict confidence and shall not
be divulged or released to any person,
including directors, officers, or employees
of the Employer, except as otherwise
provided herein or required by law. The
Trustee may retain the services of a third
party to tabulate Participant directions
and to perform such other ministerial tasks
as it deems are appropriate.
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(b) Voting of Stock. Voting rights on Shares held by the
Plan shall be exercised in accordance with the following
provisions of this Section (8):
(i) As soon as practicable before each annual
or special shareholders' meeting of the
Corporation, the Committee or the Trustee
shall furnish each Participant with a copy
of the proxy solicitation material sent
generally to shareholders, together with
forms requesting confidential instructions
on how the Shares allocated to a
Participant's Account are to be voted. The
Corporation and the Committee shall
cooperate with the Trustee to ensure that
Participants receive the requisite
information in a timely manner. The
materials furnished to the Participants
shall include a notice that allocated
Shares for which timely instructions are
not received by the Trustee will be voted
by the Trustee in proportion to the
allocated Shares as to which instructions
have been received. Notwithstanding
anything contained herein to the contrary,
in the event a person or entity other than
the Corporation solicits proxies from
shareholders of the Corporation, prior to
distributing materials under this Section
(8)(b), the Committee may require that the
proxy solicitor advance sufficient funds as
are necessary to cover the cost of the
distributing materials to, and soliciting
instructions from, Participants.
(ii) With respect to all corporate matters
submitted to shareholders, all Shares
allocated to Participants' Accounts shall
be voted in accordance with the directions
of Participants as given to the Trustee. A
Participant shall be entitled to direct the
voting of Shares (including fractional
shares to 1/10th of a share) allocated to
his Participant's Account. Any allocated
Shares for which no timely instructions
have been received by the Trustee shall be
voted by the Trustee in proportion to the
allocated Shares as to which instructions
have been received.
(iii) A Participant who has ESOP Stock allocated
to his Participant's Account and who is
entitled to vote on matters presented for a
vote by the stockholders under Section
(8)(b)(ii) above with respect to Shares
allocated to his Account shall separately
direct the Trustee with respect to the vote
of a portion of the Shares that are
unallocated to any Participant's Account.
Such direction shall be with
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respect to the number of votes equal to the
total number of votes attributable to
Shares not allocated to any Participant's
Account multiplied by a fraction, the
numerator of which is the number of votes
attributable to ESOP Stock allocated to the
Participant's Account and the denominator
of which is the total number of votes
attributable to the ESOP Stock allocated to
the Accounts of all Participants. Any
unallocated Shares for which no timely
instructions have been received by the
Trustee shall be voted by the Trustee in
proportion to the unallocated Shares as to
which instructions have been received.
Fractional Shares shall be rounded to the
nearest 1/10th of a Share.
(iv) The instructions received by the Trustee
from Participants shall be held by the
Trustee in strict confidence and shall not
be divulged or released to any person
including directors, officers, or employees
of the Employer, except as otherwise
provided herein or required by law. The
Trustee may retain the services of a third
party to tabulate Participant directions
and to perform such other ministerial tasks
as it deems are appropriate.
(c) Beneficiary. In the case of a deceased Participant, this
Section (8) shall apply to the Participant's Beneficiary.
(d) Rights With Respect To Other Securities. The Committee
shall have sole and absolute discretion with respect to
voting, tendering, and other rights for any securities
held by the Plan other than Company Stock.
(9) QUALIFICATION OF ESOP FEATURE:
In the event that an ESOP Contribution is conditioned upon initial
qualification of the ESOP Feature under Code Section 401(a) and the
ESOP Feature does not so qualify, the contribution, net of any losses
attributable thereto and together with any earnings thereon, may, to
the extent permitted by law, be returned to the applicable Employing
Companies within one year after the denial of qualification.
(10) TERMINATION OF ESOP FEATURE:
Upon a complete termination of the Plan or the ESOP Feature, any
unallocated Leveraged Shares shall be sold to the Corporation or on
the open market. The
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proceeds of such sale shall be used to satisfy any outstanding
Acquisition Loan and the balance of any funds remaining shall be
allocated to each Participant's Account under the rules set forth in
Article VI(3)(e).
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ARTICLE VII
VESTING
(1) BEFORE-TAX CONTRIBUTIONS AND ROLLOVER CONTRIBUTIONS:
Each Participant shall at all times have a vested interest in the
portion of his Account balance attributable to Before-Tax
Contributions and Rollover Contributions.
(2) MATCHING CONTRIBUTIONS AND NONELECTIVE CONTRIBUTIONS:
(a) A Participant shall not have a vested interest in the
portion of his Account attributable to Matching
Contributions or Nonelective Contributions except as
specifically provided herein.
(b) Each Participant shall have a fully vested interest in
the portion of his Account balance attributable to
Matching Contributions and Nonelective Contributions as
of the earliest of the following dates:
(i) the first date on or after he attains
Normal Retirement Age on which he is an
employee of the Employer;
(ii) the date on which he becomes Disabled,
provided that he was an Employee on the day
immediately before such date; or
(iii) the date on which he has a Termination of
Employment by reason of his death.
(c) Each Participant who does not otherwise have a vested
interest in the portion of his Account balance
attributable to Matching Contributions under this Article
VII shall have a fully vested interest in such portion
upon his completion of one year of Service.
(d) Each Participant who does not otherwise have a vested
interest in the portion of his Account balance
attributable to Nonelective Contributions under this
Article VII shall have a fully vested interest in such
portion upon his completion of five years of Service.
(e) (i) This Section (2) shall apply separately to
any amount that is attributable to a plan
described in Article III(11)(a) and that is
treated as attributable to Matching
Contributions or Nonelective Contributions
pursuant to Article III(11)(c). The
vesting percentage applicable to
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<PAGE> 81
such an amount shall be the greater of (A)
the vesting percentage determined under
Sections (2)(b), (c), (d), and (e)(ii) or
(B) the vesting percentage applicable to
such amount under the plan immediately
prior to the transfer, merger, or
consolidation described in Article
III(11)(a).
(ii) Notwithstanding anything herein to the
contrary, a Designated AmVestors Employee
shall have his vested interest in the
portion of his Account balance attributable
to Nonelective Contributions determined
under the following schedule:
<TABLE>
<CAPTION>
Service (in years) Vesting Percentage
------------------ ------------------
<S> <C>
0 0
1 0
2 0
3 20%
4 40%
5 100%
</TABLE>
For purposes of this subsection (e)(ii), a
Designated AmVestors Employee is an
individual who was an employee of AmVestors
Financial Corporation on January 1, 1999 or
is described in the last sentence of this
Section (2)(e)(ii). Notwithstanding the
foregoing, to the extent required by law,
the vesting percentage of any individual
described in the last sentence of this
Section (2)(e)(ii) shall not be less than
the greater of (A) the vesting percentage
of such individual under the AmVestors
Financial Corporation Money Purchase
Pension Plan determined as if such plan had
continued in effect under the same terms
that were in effect as of December 31,
1998, or (B) the vesting percentage of such
individual under the AmVestors Financial
Corporation Employees' Stock Ownership Plan
determined as if such plan had continued in
effect under the same terms that were in
effect as of December 31, 1998. An
individual is described in this sentence
if, as of December 31, 1998, he (C) was a
participant in the AmVestors Financial
Corporation Money Purchase Pension Plan or
the AmVestors Financial Corporation
Employees' Stock Ownership Plan, and (D)
had three
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years of service as determined under Code
Section 411(a)(10) and under the terms of
such plans; provided that Section
(2)(e)(ii)(A) shall only apply to an
individual who would be described in this
sentence if there were no references in
this sentence to the AmVestors Financial
Corporation Employees' Stock Ownership
Plan; provided further that Section
(2)(e)(ii)(B) shall only apply to an
individual who would be described in this
sentence if there were no reference to the
AmVestors Financial Corporation Money
Purchase Pension Plan.
(f) If (i) a distribution is made to a Participant of an
amount attributable to Matching Contributions or
Nonelective Contributions, and (ii) such distribution is
made at a time when the Participant can increase his
vesting percentage in the portion of his Account
attributable to Matching Contributions or Nonelective
Contributions, the Plan shall comply with the
requirements of Treasury Regulation Section
1.411(a)-7(d)(5)(iii)(B) (or any applicable successor
provision).
(g) Notwithstanding anything in this Plan to the contrary, no
Distribution or loan shall be made to a Participant or
his Beneficiary of any amount that is not vested, and
this Plan shall be construed accordingly.
(3) FORFEITURES:
(a) A Participant who incurs a Period of Severance that
equals or exceeds five years shall, as of the last day of
the fifth year of such Period of Severance, forfeit any
portion of his Account balance in which he does not then
have a vested interest (unless such portion is sooner
forfeited under this Section (3)).
(b) A Participant who has a Termination of Employment and
receives a distribution of the entire portion of his
Account balance in which he has a vested interest shall,
immediately following such distribution and to the extent
permitted by law, forfeit the portion of his Account
balance in which he does not then have a vested interest.
For this purpose, a Participant who has a Termination of
Employment and does not have a vested interest in any
portion of his Account balance shall be deemed to have
received a distribution of zero dollars ($0), which
distribution shall be treated as a distribution of the
entire portion of his Account balance in which he has a
vested interest.
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(c) Forfeitures under this Plan or a Prior Plan shall be used
to offset amounts that the Employing Companies would
otherwise contribute to the Plan.
(d) Notwithstanding anything herein to the contrary, a
portion of a Participant's Account that would be vested
but for this subsection (d) (together with any income
attributable to such portion) shall be forfeited (i) to
the extent provided in Article III(12)(b) and Article
III(12)(c), (ii) to the extent that such portion is
attributable to a Matching Contribution that relates to
an Excess Deferral Amount distributed under Article
III(13), provided that this Article VII(3)(d)(ii) shall
not apply to the extent that such Matching Contribution
would be distributed pursuant to Article III(12)(c), and
(iii) to the extent otherwise provided for in other
provisions of this Plan. A forfeiture under the
preceding sentence shall occur as of the date determined
by the Committee in its sole and absolute discretion,
subject to the provisions of applicable law.
(e) With respect to any Participant, the portion of any
forfeiture under this Plan that is derived from an
Investment Fund shall bear the same relationship to the
total forfeiture as the amount invested in such
Investment Fund on behalf of the Participant bears to the
amount invested in all Investment Funds on behalf of the
Participant. For purposes of this subsection (e), a
retirement account described in Article VIII(2)(c)(ii)(B)
shall be treated as an Investment Fund.
(4) RESTORATION OF FORFEITED AMOUNTS UPON REPAYMENT:
(a) If, with respect to a participant under this Plan or a
Prior Plan, a forfeiture occurred under this Plan or a
Prior Plan by reason of a distribution to such
participant, and such former participant is subsequently
reemployed as an Employee, such former participant shall
have the right, under procedures prescribed by the
Committee, to make a lump sum repayment of the entire
amount distributed, provided that such repayment must be
made before the earlier of (i) five years after the first
date after the distribution on which the former
participant is reemployed as an Employee, or (ii) the
completion of a five-year Period of Severance after the
date of the distribution. In the case of a deemed
distribution of zero dollars ($0) under the Plan or a
Prior Plan, Section (4)(a)(i) shall not apply, the
"distribution" in Section (4)(a)(ii) shall be deemed to
have occurred upon the participant's termination of
employment, and the "repayment" shall be deemed to occur
upon the participant's reemployment as an Employee.
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<PAGE> 84
(b) If the repayment described in subsection (a) is made, the
forfeited amounts, at the value as of the date of
distribution, shall be restored to the former
participant's Account by the Employing Companies without
regard to the deductibility of such contributions under
Code Section 404 (notwithstanding anything herein to the
contrary).
(c) Except for purposes of Articles III and VI (and related
provisions) and except as the context indicates
otherwise, the amount repaid by the participant and the
amount restored by the Employing Companies shall be
treated under this Plan as if they were contributed to
the Trust Fund on the day when repaid and on the day when
restored.
(5) EFFECTIVE DATE OF VESTING PROVISIONS:
Except to the extent required by law, the provisions of this Article
VII shall not apply to a Participant prior to the date that such
Participant has at least one Hour of Service on or after January 1,
1999. To the extent that this Article VI does not apply to a
Participant, vesting shall be determined under the provisions of this
Plan (and/or a Prior Plan, as the case may be) that would have been
applicable but for the merger of the Prior Plans into this Plan and
this 1998 Amendment and Restatement.
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ARTICLE VIII
PARTICIPANT ACCOUNTS
(1) RECORDS, ALLOCATIONS, AND INVESTMENTS:
(a) (i) An Account shall be established for each
Participant. The Committee shall keep
appropriate books and records showing the
respective interests of all the
Participants hereunder, or the Committee
may delegate that responsibility to the
Trustee or to a third party recordkeeper.
(ii) The Committee shall have the authority, in
its sole and absolute discretion, to (A)
designate funds as Investment Funds, (B)
add or delete Investment Funds, and (C)
prescribe any necessary or appropriate
rules regarding the availability of
Investment Funds. For example, the
Committee has the authority to prescribe
rules limiting the availability of an
Investment Fund prior to the liquidation of
the Plan's investment in such Investment
Fund. Another example of the Committee's
authority is that the availability of an
Investment Fund to one or more Participants
may be limited in any ways permissible
under applicable law.
The ESOP Fund and the Company Stock Fund
shall be included among the Investment
Funds.
(iii) The Plan is generally intended to
constitute a plan described in ERISA
Section 404(c) and Labor Regulation Section
2550.404c-1 (or any applicable successor
provision) with respect to all amounts
allocated to Participants' Accounts other
than amounts that are in any
Diversification Account. The Plan shall be
interpreted and construed in accordance
with this intent; provided that the only
effect of any failure to comply with ERISA
Section 404(c) or Labor Regulation Section
2550.404c-1 (or any applicable successor
provision) with respect to a transaction
shall be that the limited relief provided
by such provisions shall not apply to such
transaction. To the extent that the Plan
is intended to constitute a plan described
in ERISA Section 404(c) and Labor
Regulation Section 2550.404c-1 (or any
applicable successor provision), the
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fiduciaries of the Plan may be relieved of
liability for any losses which are the
direct and necessary result of investment
instructions given.
(b) Matching, Nonelective, Before-Tax, and Rollover
Contributions, QNECs, and Transferred Amounts made by or
on behalf of a Participant shall be allocated to the
Participant's Account in a manner consistent with
applicable requirements.
(2) INVESTMENT ELECTIONS:
(a) Except as otherwise provided in this Plan, each
Participant must elect, at the time the Participant's
Account is established, the Investment Fund or Funds in
which Investment Contributions will be invested. Such
election must be made in increments of 1%.
(b) Notwithstanding any other provision of this Article VIII,
to the extent directed to do so by the Committee (which
directions shall be determined by the Committee in its
sole and absolute discretion), the Trustee shall invest
amounts in money market funds, checking accounts, or the
like, pending investment or disbursement or as is
necessary to satisfy the liquidity requirements of the
Trust.
(c) (i) Except as otherwise provided in this Plan,
a Participant may elect to change the
Investment Funds in which future Investment
Contributions will be invested, subject to
the same 1%-increment rule set forth in
Section (2)(a).
(ii) (A) Except as otherwise provided in
this Plan, a Participant may
elect to change the Investment
Funds in which his Account is
invested. Such election is not
required to correspond in any
fashion with the election in
effect with respect to the
Participant under subsection (a)
or (c)(i). Such an election must
be made in increments of 1%.
(B) Except as otherwise provided in
this Plan, a Participant may
elect to transfer amounts from
the Investment Funds in which his
Account is invested to a
retirement account designated by
the Committee.
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(I) The amount transferred pursuant
to this Section (2)(c)(ii)(B)
may not exceed the excess of
(1) 50% of the portion of his
Account that is vested over (2)
the portion of his Account that
is already invested, at the
time of the transfer, in a
retirement account designated
by the Committee pursuant to
this Section (2)(c)(ii)(B).
(II) The Committee shall have the
authority, in its sole and
absolute discretion, to (1)
designate one or more
retirement accounts, (2) add or
delete retirement accounts, (3)
not have any retirement
accounts available under this
Section (2)(c)(ii)(B), and (4)
prescribe any necessary or
appropriate rules regarding the
availability, maintenance, or
operation of retirement
accounts, provided that any
retirement account designated
by the Committee shall (a)
permit the Participant to
direct investments within such
retirement account, subject to
such restrictions as determined
by the Committee in its sole
and absolute discretion, and
(b) contain such terms and
safeguards as to ensure
compliance with applicable law.
(III) The Committee's authority under
Section (2)(c)(ii)(B)(II)(4)
shall include, for example, the
authority to prescribe (1)
requirements regarding the
minimum amount transferred to,
or held in, a retirement
account designated by the
Committee, (2) rules for
determining which types of
Investment Contributions are
treated as invested in the
retirement account, (3) rules
regarding the extent to which
withdrawals, partial
distributions, or Plan loans
shall be made from a retirement
account or from Investment
Funds, and (4) rules regarding
the
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conditions for transferring
funds from a retirement account
to another retirement account
or to one or more Investment
Funds.
(iii) Any change or transfer pursuant to this
subsection (c) is to be made by application
to the Committee in a manner designated by
the Committee for that purpose. Any change
of Investment Funds for future
contributions under subsection (c)(i) will
be effective within an administratively
reasonable time after receipt of the
Participant's investment election change in
accordance with the procedures established
by the Committee. Reinvestment of all or
part of an existing Account balance will be
effective in accordance with the procedures
established by the Committee.
(d) (i) (A) A Participant shall not be
permitted to elect to invest any
portion of his Investment
Contributions or his Account in
the ESOP Fund. Notwithstanding
anything herein to the contrary,
except as otherwise provided in
Article VI(5) or Article
VI(8)(a), amounts attributable to
ESOP Contributions shall, without
regard to any election by a
Participant, be invested in the
ESOP Fund, may not be reinvested
in any other Investment Fund or
transferred to a retirement
account, and shall be disregarded
in applying all other provisions
of this Section (2) (other than
Section (2)(b) or (2)(f)).
(B) The rules of paragraph (i)(A)
shall not apply to the Company
Stock Fund. Accordingly, for
example, a Participant may elect
to invest any portion of his
Investment Contributions (other
than amounts required to be
invested in the ESOP Fund) in the
Company Stock Fund under the
rules otherwise applicable under
Section (1) and this Section (2).
Also, for example, amounts that
are invested in the Company Stock
Fund may be reinvested, under the
rules otherwise applicable under
Section (1) and this Section (2),
in another Investment Fund (other
than the ESOP Fund) at
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the direction of the Participant
to whose Account such amounts are
allocated.
(ii) A Participant shall not be permitted to
transfer any portion of his Account from
one Investment Fund to another Investment
Fund or to a retirement account to the
extent that such transfer is inconsistent
with the terms of the transferor Investment
Fund.
(e) Subject to Article VI, if a Participant does not in a
timely manner designate one or more Investment Funds for
amounts to be allocated to his Account or designates one
or more Investment Funds that are not available for
investment by him hereunder, such amounts shall be
invested pursuant to a default procedure determined by
the Committee, subject to reinvestment under Section (1)
and this Section (2).
(f) A Participant shall not be permitted to elect to have
Investment Contributions invested in the Company Stock
Fund or to have any portion of his Account invested in
the Company Stock Fund to the extent that such an
election would cause the total value of his investments
in the ESOP Fund and the Company Stock Fund to exceed, or
further exceed, 50% of the value of his Account,
determined in a manner established by the Committee. To
the extent that a Participant makes an election with
respect to Investment Contributions that is prohibited by
this subsection (f), the Investment Contributions at
issue shall be invested pursuant to subsection (e). To
the extent that a Participant makes an election with
respect to his Account that is prohibited by this
subsection (f), such election shall be void and have no
effect.
(g) With respect to the Account of any Participant (other
than such portion of his Account that is invested in a
retirement account pursuant to Section (2)(c)(ii)(B)),
amounts attributable to each different type of Investment
Contribution listed in Article I(64) shall be invested in
the same Investment Fund or Funds as all other types of
Investment Contributions and in the same proportions.
(3) RESTRICTIONS ON TRANSACTIONS:
(a) Notwithstanding anything to the contrary in Section (1)
or (2), the Trustee, the Committee, or any Investment
Manager may limit the daily volume of transactions with
respect to any Investment Fund or decline to carry out
any investment direction in order to act consistently
with its responsibilities under all applicable laws or to
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avoid a prohibited transaction or the generation of
taxable income to the Trust. The Trustee, the Committee,
or any Investment Manager also may not complete a Plan
transaction on the day such transaction would otherwise
be completed under this Plan for other reasons that are
appropriate in the sole and absolute discretion of the
Trustee, the Committee, or the Investment Manager, taking
into account their duties under ERISA. Such a reason
could include, for example, a suspension of trading in an
asset important to one of the Investment Funds or a major
disruption of a securities market. Restrictions under
this subsection (a) may apply to any transaction under
the Plan, including transfers between Investment Funds,
transfers to or from retirement accounts described in
Section (2)(c)(ii)(B), withdrawals, loans, and
distributions.
If a transaction that is consistent with applicable law
and with the provisions of this Plan is not completed on
the day that it would otherwise have been completed under
the Plan, the transaction shall be completed as soon as
administratively practicable.
(b) In addition, notwithstanding anything herein to the
contrary, transactions by a Participant or Participants
may be restricted to the extent deemed necessary or
appropriate, in the sole and absolute discretion of the
Corporation, to comply with applicable laws, including
but not limited to the federal securities laws. These
restrictions could, for example, limit transfers of
Account balances into or out of the Company Stock Fund or
ESOP Fund. Also, the portion of such a restricted
Participant's Account that is invested in the Company
Stock Fund or the ESOP Fund shall not be available for
withdrawal prior to the Participant's death or
Termination of Employment or for a loan under Article X.
(4) CONFIDENTIALITY REGARDING COMPANY STOCK:
Information relating to the purchase, holding, and sale of Company
Stock, and the exercise of voting, tender, and similar rights with
respect to Company Stock shall be held by the Trustee in strict
confidence and shall not be divulged or released to any person,
including directors, officers, or employees of the Employer, except
as otherwise provided herein or required by law. The Trustee may
retain the services of a third party to tabulate Participant
directions and to perform such other ministerial tasks as it deems
are appropriate.
(5) VALUATION OF ACCOUNTS:
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<PAGE> 91
(a) As of any applicable date, the value of each Account
shall be expressed in terms of Units in the applicable
Investment Fund. The Unit Value shall be determined
separately for each Investment Fund. The Unit Value of
any Investment Fund shall be determined by dividing the
market value of the assets in the Investment Fund by the
total number of Units in the Investment Fund.
(b) All deposits made to an Investment Fund shall be
converted into Units by dividing the dollar amount of
such deposit by the value of one Unit in the Investment
Fund determined as of the Valuation Date on which the
deposits are made.
(6) BENEFICIARIES:
Under rules determined by the Committee, in the case of a deceased
Participant, this Article VII shall apply to the Participant's
Beneficiary.
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ARTICLE IX
ACCOUNT DISTRIBUTION:
TERMINATION; DEATH; TRANSFER
(1) ELIGIBILITY FOR DISTRIBUTION OF ACCOUNT: TERMINATION AND DEATH:
(a) Except as otherwise provided herein, a Participant shall
be eligible to receive the entire amount to the credit of
his Account in the event of the Participant's Termination
of Employment, provided that an event shall not
constitute a Termination of Employment with respect to
any part of the Participant's Account unless such event
is a Termination of Employment with respect to a
Participant's entire Account. For this purpose, a
Participant's Account shall not be treated as including
any amounts previously transferred or distributed, even
if such transfer or distribution is made after or on
account of the same event.
(b) In the event of the death of a Participant, payment of
such Participant's Account shall be made to his
Beneficiary.
(2) ELIGIBILITY FOR DISTRIBUTION OF ACCOUNT: TRANSFERS OF EMPLOYMENT:
(a) If an Eligible Employee remains employed by the Employer
but ceases to be an Eligible Employee, no further
contributions shall be made to the Plan by or on behalf
of such individual with respect to periods during which
he is not an Eligible Employee. During the period during
which such individual remains employed by the Employer,
he shall not be treated as having had a Termination of
Employment for purposes of the distribution provisions of
this Plan.
(b) If a Participant remains employed by the Employer but
ceases to be an Eligible Employee, the Account of such
Participant may, in the sole and absolute discretion of
the Committee, be transferred (other than in an Elective
Transfer) to another plan maintained by the Employer,
provided that such plan is qualified under Code Section
401(a) or 403(a).
(c) This subsection (c) shall only apply to a Participant who
is among a group of individuals who by reason of the same
event all (i) cease to be employed by the Employer and
(ii) become employed by another employer for whom they
are performing substantially the same services that they
performed for the Employer. The Account of a
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Participant to whom this subsection (c) applies shall be
transferred, in whole or in part, to a plan maintained by
such new employer if (A) such plan is qualified under
Code Section 401(a) or 403(a), and (B) such transfer is
provided for in a document (such as a purchase agreement
in the case of a sale by the Employer of the assets of a
trade or business) setting forth the legal and
contractual obligations of the parties involved in the
event. The transfer may be an Elective Transfer or a
transfer that is not an Elective Transfer, as provided
for in the document described in the preceding sentence.
(3) PAYMENT OF PARTICIPANT ACCOUNT:
(a) In General.
This Section (3) shall apply except to the extent
otherwise provided in this Plan.
(b) Lump Sum Payment.
A Participant who is eligible for a distribution from the
Plan pursuant to Section (1) may elect to receive a
distribution by making an application therefor to the
Committee in a manner designated by the Committee. In
such application, the Participant may elect to receive a
distribution of his entire Account as a lump sum as soon
as practicable after the application is received by the
Committee and in accordance with the Plan's normal
processing standards and procedures. The Valuation Date
for the distribution will be the day on which the
Participant's payment record is processed for
distribution by the Committee.
(c) Installment Payments.
In the application described in subsection (b), a
Participant who is eligible for a distribution from the
Plan pursuant to Section (1) may elect to have his
Account paid to him in:
(i) Monthly, quarterly, or annual installments,
over a period designated by the
Participant, provided that such period
shall not exceed the life expectancy of the
Participant (determined in the manner set
forth under Code Section 401(a)(9) except
that a single determination shall be made
for the year in which distributions
commence (or the prior year to the extent
required by Code Section 401(a)(9)); or
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(ii) Monthly, quarterly, or annual installments
in a dollar amount designated by the
Participant, provided that the entire
remaining portion of his Account shall be
distributed within the 60-day period ending
on the last day of the Participant's life
expectancy (determined in the manner set
forth under Code Section 401(a)(9) except
that a single determination shall be made
for the year in which distributions
commence (or the prior year to the extent
required by Code Section 401(a)(9)).
Any election under Section (3)(c)(i) or (3)(c)(ii) may
not be modified by the Participant except to the extent
permitted under Section (3)(d).
(d) Installment Payment Methodology.
Installment payments described in subsection (c) shall be
subject to the following provisions:
(i) The first monthly, quarterly, or annual
payment under subsection (c) will be made
as soon as practicable after the
Participant's application is received by
the Committee.
(ii) This paragraph (ii) shall apply to payments
made under subsection (c)(i). The amount of
each monthly payment, if applicable, will
be determined by dividing the value of the
Participant's Account balance by the number
of months remaining in the payment
schedule. The amount of each quarterly
payment, if applicable, will be determined
by dividing the value of the Participant's
Account balance by the number of quarters
remaining in the payment schedule. The
amount of each annual payment, if
applicable, will be determined by dividing
the value of the Participant's Account
balance by the number of years remaining in
the payment schedule.
(iii) A Participant who elects the installment
option may elect to receive a lump sum
distribution of the balance of his Account
at any time.
(iv) In the event the Participant dies prior to
a complete distribution of his Account, the
balance of his Account shall be paid in a
single sum payment to his Beneficiary
within an administratively reasonable time
after such death.
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(v) All payments under this subsection (d)
shall be valued as of the day on which the
payment is processed for distribution by
the Committee.
(e) Annuity Payments.
In the application described in subsection (b), a
Participant who is eligible for a distribution from the
Plan pursuant to Section (1) may elect to have his
account paid to him in a Joint and Survivor Annuity or in
a single life annuity.
(f) Limits on Distributions during Reemployment.
Notwithstanding the foregoing, no distribution shall be
made pursuant to this Section (3) (other than payments
under an annuity contract previously distributed under
Section (4)(b)) if, at the time such distribution would
be made, the Participant has been reemployed by the
Employer as an Employee. Any further distribution shall
be deferred until the Participant again qualifies for
such a distribution under the terms of the Plan.
(g) Death Benefits.
In the event of the death of a Participant prior to his
Annuity Starting Date, all amounts credited to his
Account shall be distributed in a single payment to his
Beneficiary within an administratively reasonable time
after such death.
(4) MEDIUM OF DISTRIBUTION:
(a) All distributions shall be made in cash. Notwithstanding
the preceding, if a Participant or Beneficiary whose
Account includes an interest in the ESOP Feature so
elects in the manner prescribed therefor by the
Committee, distribution of all or part of such interest
shall be in Shares (with fractional Shares paid in cash);
provided that any amount paid as an annuity shall be paid
only in cash.
(b) Where a distribution is made with respect to a
Participant's Account in the form of an annuity described
in Section (3)(e), (8)(a), or (8)(e) an annuity contract
shall be purchased from a life insurance company and such
contract shall be distributed. The cost of such contract
and all costs related to the purchase of the contract
shall be charged against the Participant's vested
Account. The insurance company from which
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the contract is purchased shall be the insurance company
designated in writing (i) by the Participant in the case
of an annuity described in Section (3)(e) or (8)(e), or
(ii) by the Spouse in the case of an annuity described in
Section (8)(a). Any such designation and purchase shall
be made in accordance with applicable law. If a valid
designation of an insurance company is not made in a
timely fashion by the Participant or the Spouse, as the
case may be, the Committee shall designate the insurance
company. The terms of any annuity contract purchased and
distributed by the Plan shall comply with the applicable
requirements of this Plan, the Code, ERISA, and other
applicable laws. Distribution of all or a part of a
Participant's Account with one or more annuity contracts
shall, with respect to such portion of the Participant's
Account, constitute a complete acquittal and discharge of
every liability under the Plan and Trust with respect to
such Participant and with respect to any person whose
rights are derived from the rights of such Participant.
(5) OTHER DISTRIBUTIONS:
In the event that a loan made to a Participant under Article X is in
default and the Committee determines, under terms that are
incorporated herein by reference, that it is necessary for a
distribution to be made under the Plan in order to cure such default
and that such a distribution could be made under applicable law, the
Committee, with notice to the Participant, shall cause a distribution
to be made on behalf of the Participant under the Plan which shall be
applied by the Committee to the unpaid balance of the loan, including
accrued interest. Such distribution shall be charged against the
security for the loan, as determined under Article X(2)(h). Any such
distribution shall be subject to whatever restrictions and other
rules are applicable under Article IV, Article IX, or other Plan
provisions, as the case may be, except to the extent that the context
clearly indicates otherwise, provided that, solely for purposes of
such a distribution, amounts attributable to Discretionary
Allocations shall be treated as withdrawable under Article IV by any
Participant who has attained the age of 59 1/2. For purposes of this
Section (5), a loan made to a Participant shall be treated as in
default if the Participant fails to make three consecutive monthly
payments, except as otherwise provided in rules determined by the
Committee that are incorporated herein by reference.
(6) QUALIFIED DOMESTIC RELATIONS ORDERS:
The Plan shall comply with any order determined by the Committee to
be a qualified domestic relations order (within the meaning of Code
Section 414(p)). Notwithstanding the foregoing, a payment under a
qualified domestic relations order may commence at the time set forth
in the order, even if such time would
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be earlier than the date on which the amount would otherwise be
payable to the Participant under the Plan.
The Committee shall establish reasonable procedures consistent with
applicable rules to determine the qualified status of domestic
relations orders and to administer distributions under such qualified
domestic relations orders (or the segregation of amounts pending
determination of such status).
(7) ADDITIONAL DISTRIBUTION RULES:
(a) Distributions of Small Amounts.
(i) If a Participant has a Termination of
Employment, and the value of his Account
exceeds $3,500 (determined as of such times
and in such manner as are required by Code
Section 411(a)(11)), his Account will not
be distributed to him without his written
consent except as otherwise provided in
this Article IX. Notwithstanding anything
in this Plan to the contrary (including,
without limitation, Section (8)), if a
Participant has a Termination of
Employment, and the value of his Account
does not exceed $3,500 (determined as of
such times and in such manner as are
required by Code Sections 411(a)(11) and
417), his Account shall be distributed in a
single sum without his consent within an
administratively reasonable time.
(ii) Effective as of January 1, 1998, Section
(7)(a)(i) shall be applied by substituting
"$5,000" for "$3,500" wherever it appears.
(b) Distribution Due Date.
(i) Commencement of Distributions. The
distribution of a Participant's Account
shall begin, if it has not previously
begun, within an administratively
reasonable period after the later of (A)
the Participant's Termination of
Employment, or (B) the Participant's
attainment of age 65. If a distribution
commences to a Participant who has not made
an election of a form of distribution under
Section (3), the Participant shall be
deemed to have elected to receive such
distribution in the form of a Joint and
Survivor Annuity.
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<PAGE> 98
(ii) Legally Required Provision. The
distribution of the Participant's Account
shall begin not later than the sixtieth day
after the close of the Plan Year in which
the latest of the following dates occurs:
(A) the date on which the Participant
attains age 65;
(B) the tenth anniversary of the year
in which the Participant
commenced participation in the
Plan; or
(C) the date on which the Participant
has a Termination of Employment.
(c) Minimum Distribution Requirements.
(i) A Participant's entire vested interest
under this Plan must be distributed,
beginning not later than the required
beginning date (as defined in Code section
401(a)(9) (subject to applicable provisions
of law regarding effective dates and
transition rules)), over a period no longer
than: (A) the life of the Participant, (B)
the lives of the Participant and a
designated beneficiary, (C) the life
expectancy of the Participant, or (D) the
life expectancy of the Participant and a
designated beneficiary.
(ii) If a Participant dies after distributions
to him have commenced, the Participant's
remaining benefits shall be distributed at
least as rapidly as under the method of
distribution being used as of the date of
the Participant's death.
(iii) If a Participant dies before distributions
to him have commenced, the Participant's
remaining benefits shall (A) be distributed
in their entirety by December 31 of the
calendar year which contains the fifth
anniversary of the death of the
Participant, or (B) be distributed over a
period no longer than the life (or life
expectancy) of a designated beneficiary.
The determination of whether Section
(7)(c)(iii)(A) or (7)(c)(iii)(B) shall
apply shall depend on which is consistent
with the benefits payable under the Plan
without regard to this Section (7)(c).
Distributions described in Section
(7)(c)(iii)(B) shall commence no later than
December 31 of the calendar year
immediately
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following the calendar year of the
Participant's death except to the extent
provided under Code Section 401(a)(9).
(iv) The determination of whether life
expectancies of Participants and their
spouses shall be recalculated under the
regulations issued under Code Section
401(a)(9) shall depend on whether such
recalculation is consistent with the
benefits payable under the Plan without
regard to this Section (7)(c).
(v) The benefits of any Participant must
conform to the incidental death benefit
requirements of Code Section 401(a)(9).
(vi) The provisions of this Section (7)(c) shall
be applied in accordance with regulations
issued under Code Section 401(a)(9) and
shall override any inconsistent
distribution options contained in this
Plan.
(d) Rollovers to Other Plans.
(i) Notwithstanding any provision of the Plan
to the contrary that would otherwise limit
a Distributee's election under this Section
(7)(d), a Distributee may elect at the time
and in the manner prescribed by the
Committee, to have any portion of an
Eligible Rollover Distribution paid
directly to an Eligible Retirement Plan
specified by the Distributee in a Direct
Rollover, provided that no election shall
be available in the circumstances described
in Treasury Regulation Section
1.401(a)(31)-1 Q/A- 11 (or any applicable
successor provision).
(ii) For purposes of Section (7)(d)(i), the
following rules apply:
(A) In the sole and absolute
discretion of the Committee, a
Direct Rollover may be made by
any means permitted by Treasury
Regulation Section 1.401(a)(31)-1
Q/A-3, Q/A-4 (or any applicable
successor provision).
(B) The Committee may, in its sole
and absolute discretion, require,
as a condition of making a
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Direct Rollover, that the
Distributee electing the Direct
Rollover provide such information
or documentation as is permitted
under Treasury Regulation Section
1.401(a)(31)-1 Q/A-6 (or any
applicable successor provision).
(C) The Committee may establish a
deadline for a Distributee to
elect a Direct Rollover, which
deadline shall comply with all
applicable requirements under the
Code. To the extent permitted by
law, such deadline may vary
depending on the circumstances of
the Distributee (such as whether
Section (7)(c) applies to the
Participant).
If a Distributee does not make
any election by the applicable
deadline, the Distributee shall
be deemed to have elected not to
have a Direct Rollover made.
(D) Subject to the other requirements
set forth in this Section (7)(d),
a Distributee may elect to have
all or any portion of his
Eligible Rollover Distribution
paid directly to an Eligible
Retirement Plan specified by the
Distributee in a Direct Rollover,
provided that if a Distributee
elects to have only a portion of
his Eligible Rollover
Distribution paid in such manner,
such election shall only be
permitted if the value of the
portion is equal to or greater
than $500.
(E) Any election to have a Direct
Rollover made with respect to an
Eligible Rollover Distribution
must specify a single Eligible
Retirement Plan to which the
Direct Rollover shall be made.
(F) For purposes of this Plan, a
Direct Rollover with respect to a
Distributee shall be treated as a
distribution or withdrawal with
respect to such Distributee.
(G) If an Eligible Rollover
Distribution is one payment in a
series of periodic payments, and
the Distributee elects to have
some or all of such
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Eligible Rollover Distribution
paid to an Eligible Retirement
Plan specified by the Distributee
in a Direct Rollover, such
election shall apply to all
subsequent payments in the
series; provided that the
Distributee is permitted at any
time to change the election with
respect to subsequent payments in
the series; provided further that
any such change shall be treated
as an election subject to this
Section (7)(d)(ii)(G).
(iii) The provisions of this Section (7)(d) shall
apply only to distributions made after
December 31, 1992 and only to the extent
required by the plan qualification rules of
Section 401(a) of the Code.
(e) Investment Funds.
In the event that the portion of the Participant's
Account from which a distribution is made is invested in
more than one Investment Fund at the time of such
distribution, the amount distributed shall be charged to
each Investment Fund in proportion to the value of the
investment of such portion of his Account in such
Investment Fund, provided that if the Participant
specifically designates the Investment Funds to be
charged, the amount distributed shall be charged to
Investment Funds in accordance with the Participant's
designation. For purposes of this subsection (e), a
retirement account described in Article VIII(2)(c)(ii)(B)
shall be treated as an Investment Fund.
(8) SPECIAL RULES:
This Section (8) shall apply notwithstanding any other provision of
this Plan to the contrary.
(a) Pre-Retirement Survivor Annuity.
Unless otherwise elected as provided below, a Participant
who dies before the Annuity Starting Date and who has a
Spouse shall have his Account paid to his Spouse in the
form of a Pre-Retirement Survivor Annuity. Unless the
Spouse elects an earlier distribution, payment of the
Pre-Retirement Survivor Annuity will begin within an
administratively reasonable time after the later of (i)
the date the Participant would have attained age 65, or
(ii) the date that is 90 days after the death of the
Participant. If a Participant, on the date of his
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death, does not have a Spouse, distribution of the
Participant's Account shall be made without regard to
this Section (8).
(b) Waiver of Pre-Retirement Survivor Annuity.
(i) An election to waive the Pre-Retirement
Survivor Annuity before the Participant's
death must be made by the Participant
during the election period in writing and
on a form prescribed therefor by the
Committee, and shall require the Spouse's
irrevocable consent as provided in Section
(8)(g).
(ii) Notwithstanding the terms of any waiver
regarding the form of death benefit, if the
Spouse has not, at the time of the
Participant's death, properly consented to
a non-Spouse Beneficiary, the Spouse may
elect on a form prescribed therefor by the
Committee (A) to begin receiving the
Pre-Retirement Survivor Annuity within a
reasonable time following the later of the
Participant's death or the Spouse's
election, or (B) to receive a single sum
distribution of the Participant's Account
within a reasonable time following the
later of the Participant's death or the
Spouse's election. Any written election
described in this Section (8)(b)(ii) must
be obtained not more than ninety (90) days
before distribution begins and shall be
made in accordance with the provisions of
this Section (8). If a Spouse's election
is not received by the later of (C) the
date the Participant would have attained
age 65 or (D) the date that is ninety (90)
days after the Participant's death,
distribution of the Pre-Retirement Survivor
Annuity will begin within an
administratively reasonable time after the
later of such dates.
(c) Election Period.
The election period to waive the Pre-Retirement Survivor
Annuity shall begin on the first day of the Plan Year in
which the Participant attains age 35 and shall end on the
date of the Participant's death. An earlier waiver (with
Spousal consent) may be made, but such waiver shall
become invalid at the beginning of the Plan Year in which
the Participant attains age 35. When a Participant
separates from service prior to the beginning of the
election period, the election period shall begin on the
date of separation from service.
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(d) Notice of Election Rights.
The Committee shall provide Participants with an
explanation of the election that meets the requirements
of Code Section 417(a)(3)(B).
(e) Joint and Survivor Annuity.
Unless otherwise elected as provided below, a Participant
who does not die before the Annuity Starting Date shall
receive his Account in the form of a Joint and Survivor
Annuity, provided that this subsection (e) shall not
apply to a withdrawal under Article IV except to the
extent required by law. The Joint and Survivor Annuity
shall begin within a reasonable time after the
Participant's Annuity Starting Date.
(f) Election to Waive Joint and Survivor Annuity.
An election to waive the Joint and Survivor Annuity must
be made by the Participant during the election period in
writing on a form prescribed therefor by the Committee
with the consent of the Participant's Spouse. An
election to designate a Beneficiary or form of benefits
may not be changed without Spousal consent. An unmarried
Participant may elect in writing during the election
period on a form prescribed therefor by the Committee to
waive the Joint and Survivor Annuity. An election may be
revoked by the Participant in writing without the consent
of the Spouse at any time during the election period.
The number of revocations shall not be limited. Any new
election must comply with the requirements of this
paragraph.
(g) Spousal Consent.
Spousal consent will be valid only if (i) it is in
writing on a form prescribed therefor by the Committee,
(ii) the Spouse's consent acknowledges the effect of the
consent, and (iii) the Spouse's signature is witnessed by
a Plan representative or a notary public and is
acknowledged in writing by such witness on a form
prescribed therefor by the Committee. Notwithstanding
this consent requirement, if the Participant establishes
to the satisfaction of the Committee that such written
consent cannot be obtained because:
(A) there is no Spouse;
(B) the Spouse cannot be located; or
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(C) of other circumstances that may
be prescribed by Treasury
Regulations;
the Participant's waiver under Section (8)(f) or Section
(8)(b), whichever is applicable, will be considered
valid. Any consent under this provision will be valid
only with respect to the Spouse who signs the consent and
only with respect to the Beneficiary and, in the case of
an election to waive the Joint and Survivor Annuity, form
of benefit designated in that consent. A consent under
this provision may not be revoked. If the existence of a
Spouse is uncertain or if the validity of Spousal consent
is unclear, the Committee shall withhold payment of
benefits until such determination is made. The Committee
in its sole and absolute discretion may refuse to
recognize a Spousal consent if it believes for any reason
that the consent is invalid.
(h) Election Period.
The election period to waive the Joint and Survivor
Annuity is the ninety (90) day period ending on the
Annuity Starting Date (except to the extent otherwise
provided in Code Section 417(a)(7)). A payment shall not
be considered to occur after the Annuity Starting Date
when actual payment is reasonably delayed for calculation
of the benefit amount.
(i) Notice of Election Rights.
The Committee shall provide the Participant with an
explanation of the election which meets the requirements
of Code Section 417(a)(3)(A) (taking into account Code
Section 417(a)(7)).
(j) Effect of Waiver.
If a proper waiver is executed under Section (8)(f) with
respect to a Participant, the Participant's Account shall
be distributed under the provisions of this Article VII
without regard to this Section (8).
(k) Small Amounts.
If the value of a Participant's Account is $3,500 or less
(determined as of such times and in such manner as are
required by Code Section 417), this Section (8) shall not
apply with respect to such Participant. Effective as of
January 1, 1998, this Section (8)(k) shall be applied by
substituting "$5,000" for "$3,500".
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(9) RECOVERY OF PAYMENTS MADE BY MISTAKE:
Notwithstanding anything in this Plan to the contrary, any person or
entity is entitled to only those Distributions or other payments to
which he is entitled under the terms of the Plan and applicable law,
and shall promptly return any payment, or portion thereof, made by
mistake of fact or law. The Committee may offset the future benefits
of any person or entity who fails to return an erroneous Distribution
or other payment, in addition to pursuing any other remedies provided
by law.
(10) SPECIAL RULES FOR CERTAIN DISTRIBUTION APPLICATIONS SUBMITTED PRIOR
TO THE APPLICABLE EFFECTIVE DATE:
Any distribution made after December 31, 1997 with respect to a
distribution application that had been submitted to the Committee on
or before December 31, 1997 shall be made pursuant to the Plan as in
effect on the applicable date prior to the Effective Date. Any
distribution made after December 31, 1998 with respect to a
distribution application that had been submitted to the appropriate
person or persons with respect to a Prior Plan on or before December
31, 1998, shall be made pursuant to the applicable Prior Plan as in
effect on the applicable date prior to January 1, 1999. Any deemed
election under a provision similar to the last sentence of Section
(7)(b)(i) shall, for purposes of this Section (10), be treated as a
distribution application that was submitted to the Committee on the
date of such deemed election.
(11) COORDINATION BETWEEN PLANS AND WITH THE APPENDICES:
(a) Coordination Between the Plan and the Money Purchase
Pension Plan. Except to the extent
otherwise required by law, the Plan and the
Money Purchase Pension Plan shall be
treated as a single plan for purposes of
this Article VII. Accordingly, for example,
any election of a form of distribution
under Section (3) shall apply both to the
Plan and to the Money Purchase Pension
Plan.
(b) Coordination With the Appendices.
(i) All provisions of this Plan shall apply to
distributions under the Appendices except
for provisions that (A) are not required by
law, (B) are inconsistent with the
Appendices, and (C) are not, in context,
intended to override the Appendices.
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(ii) If an amount attributable to a Predecessor
Plan is distributed to a Participant or
Beneficiary in a form that is different
from the form or forms applicable with
respect to the remainder of his Account,
the amount attributable to the Predecessor
Plan shall be disregarded in applying
Section (3) to the remainder of his
Account.
(iii) Notwithstanding anything in the Appendices
to the contrary, no distribution under
Article IX shall commence or be made to a
Participant unless a distribution of all
other amounts then available to the
Participant under Article IX commences or
is made at the same time.
(iv) Notwithstanding anything in the Appendices
to the contrary, no distribution of amounts
attributable to a Predecessor Plan shall
commence or be made to a Participant in any
form unless a distribution of all other
amounts then available to the Participant
under Article IX in the same form commences
or is made in the same form.
(v) Article IX shall be construed in a manner
so as to effectuate the purposes of this
Section (11) and the Appendices.
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ARTICLE X
LOANS TO PARTICIPANTS
(1) AVAILABILITY OF LOANS TO PARTICIPANTS:
(a) The Committee shall provide for the availability of loans
from the Plan to Employees who have Accounts thereunder
and to any other Participant or Beneficiary (in the case
of a deceased Participant) who is a party in interest
within the meaning of Section 3(14) of ERISA. The loans
shall be made pursuant to the provisions and limitations
of this Article X. References in this Article X to a
"Participant" shall be deemed to be references also to a
Beneficiary (in the case of a deceased Participant)
except to the extent that the context or applicable law
indicates otherwise.
(b) The Committee may establish rules, which are incorporated
herein by reference, governing loans, provided that such
rules are not inconsistent with the provisions of this
Article X or applicable laws. These rules may limit the
number of loans a Participant may receive, require
payment of loan processing fees by the Participant
(either directly or out of his Account), or establish any
other requirements the Committee determines to be
necessary or desirable.
(2) TERMS AND CONDITIONS OF LOANS TO PARTICIPANTS:
Any loan under this Article X shall satisfy the following
requirements:
(a) Amount of Loan.
At the time a loan is made, the principal amount of the
loan, plus the outstanding balance (principal plus
accrued interest) due on any other loans to the
Participant from the Plan, shall not exceed the least of
(i) $50,000, (ii) one-half of the value of the
Participant's vested Account, or (iii) the portion of the
Participant's vested Account that is not attributable to
Core Nonelective Contributions, Interim Supplemental
Contributions, or Grandfathered AmVestors Supplemental
Contributions. With respect to any loan under this
Article X, the $50,000 limit set forth in Section
(2)(a)(i) shall be reduced by the sum of (iv) the
outstanding balance due on all Qualified Retirement Plan
Loans to the Participant other than loans from the Plan,
and (v) the excess (if any) of (A) the highest
outstanding balance of all Qualified Retirement Plan
Loans to the Participant during the one-year period
ending on the day before the date on which the loan is
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made over (B) the outstanding balance of Qualified
Retirement Plan Loans to the Participant on the date on
which the loan is made.
At the time a loan is made, the principal amount of the
loan shall not be less than $1,000.
(b) Source of Loan.
Each loan shall be treated as an investment of the
Borrower's Account. Any loan to a Participant shall be
made from amounts in the Participant's Account that are
described in the following sentence and shall be made in
the order set forth therein. Any loan shall be made from
amounts attributable to: first, Before-Tax
Contributions; second, vested Matching Contributions;
third, Rollover Contributions; fourth, after-tax employee
contributions to a Predecessor Plan; and fifth,
Discretionary Allocations. Loan repayments shall be
credited in the reverse order.
For purposes of this Section (2)(b), an amount
attributable to a Predecessor Plan shall be treated in
the same manner as if the contribution from which the
amount is derived were made to this Plan. Thus, for
example, an amount attributable to a rollover
contribution to a Predecessor Plan shall be treated as an
amount attributable to a Rollover Contribution for
purposes of this Section (2)(b).
(c) Investment Funds.
In the event that the portion of the Participant's
Account from which the loan is made (as set forth in
Article X(2)(b)) is invested in more than one Investment
Fund at the time of such loan, the amount loaned shall be
charged to each Investment Fund in proportion to the
value of the investment of such portion of his Account in
such Investment Fund on such processing date, provided
that if the Participant specifically designates the
Investment Funds to be charged, the amount loaned shall
be charged to Investment Funds in accordance with the
Participant's designation. For purposes of the preceding
sentence, a retirement account described in Article
VIII(2)(c)(ii)(B) shall be treated as an Investment Fund.
Amounts paid by a Participant to the Plan as repayments
of a loan shall be allocated to Investment Funds in
accordance with the Participant's existing investment
allocations for future contributions.
(d) Application for Loan.
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The Participant must apply for a loan in the manner
specified by the Committee.
(e) Length of Loan.
(i) (A) The Participant shall be required
to repay the loan in
approximately equal installments
of principal and interest over
not longer than 5 years, or such
shorter period as the Committee
may designate. The 5-year (or
shorter) limit shall not apply to
any loan the proceeds of which
are applied by the Participant to
acquire or construct any dwelling
unit that is to be used within a
reasonable time after the loan is
made as the principal residence
of the Participant. In the
latter case, the loan shall be
for a maximum of 15 years.
(B) No loan shall be made to any
Participant to the extent that
the Committee determines, in its
sole and absolute discretion,
that there is a substantial
possibility that the loan would
be viewed by the Internal Revenue
Service as an artifice to extend
the repayment period of a
previous loan beyond the
applicable maximum period set
forth in paragraph (e)(i)(A).
(ii) (A) Except as otherwise provided in
paragraph (ii)(B), the principal
amount of the loan, together with
all accrued interest, shall
immediately become due when the
Participant is no longer employed
by an Employing Company and is no
longer a party in interest under
Section 3(14) of ERISA.
(B) Paragraph (ii)(A) shall not apply
to a Participant who ceases to be
employed by an Employing Company
by reason of (I) the indefinite
closure of an office location, or
(II) the elimination of the
Participant's position.
(f) Prepayment.
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A Participant shall be permitted at any time to prepay a
loan in whole or in part without penalty. If a
Participant makes a partial prepayment with respect to a
loan, all of the original terms of the loan, including
without limitation the repayment period and the interest
rate, shall remain the same, but the amount of each of
the approximately equal repayment installments that are
subsequently required shall be adjusted to take into
account the partial prepayment.
(g) Notes, Interest, and Withholding.
The Committee may require that the loan be evidenced by a
promissory note executed by the Participant and delivered
to the Trustee. The loan shall bear interest at a rate
equal to the prime rate for loans charged by AmerUs Bank
of Des Moines, Iowa, on the first business day of the
month in which the loan is made, except that if the
Committee establishes different rules for determining the
interest rate (any which rules are incorporated herein by
reference), the interest rate shall be determined under
such rules. For this purpose, the Committee will use a
rate of interest which provides the Plan with a return
commensurate with the interest rates charged by persons
in the business of lending money for loans under similar
circumstances. Negotiation of a loan check shall be
deemed to be consent to the terms of the loan and the
related promissory note. Repayment of principal and
payment of interest will be made in installments not less
frequently than quarterly and normally will be effected
through payroll withholding, and the Participant shall
execute any necessary documents to accomplish this as a
condition to approval of the loan. In circumstances
where payroll withholding is not possible or
administratively practical, repayments shall be made by
check in monthly installments, except that if the
Committee establishes different rules for the making of
such repayments (any which rules are incorporated herein
by reference), repayments shall be made under such rules.
(h) Security.
The loan shall be secured by an assignment of the
Participant's right, title, and interest in and to his
Account in the Plan, provided that the amount of such
security shall at all times be equal to the outstanding
amount of the loan. The initial source of such security
shall be determined under the loan source rules of
Section (2)(b) as of the date of the loan; the source of
any subsequent increase or decrease in the
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amount of the security shall be determined pursuant to
such loan source rules as of the date of such increase or
decrease.
Amounts held as security for a loan shall not be
available for withdrawal or distribution except to the
extent that such amounts are applied to the unpaid
balance of the loan (including accrued interest) pursuant
to applicable provisions of this Plan.
(i) One Loan Per Plan Year.
No loan shall be made during a Plan Year to any
Participant who has received another loan under this
Article VIII during the same Plan Year; any application
for such a loan shall be void.
(j) Other Terms and Conditions.
The Committee shall fix such other terms and conditions
of the loan as it deems necessary to comply with legal
requirements, to maintain the qualification of the Plan
and Trust under Section 401(a) of the Code, to qualify
the loan as exempt from the prohibited transaction rules
of the Code or ERISA, or to prevent the treatment of the
loan for tax purposes as a distribution to the
Participant, which other terms and conditions are
incorporated herein by reference. The Committee, in its
sole and absolute discretion, may for any reason fix
other terms and conditions of the loan, not inconsistent
with the provisions of this Article VIII, which other
terms and conditions are incorporated herein by
reference.
(k) No Prohibited Transactions.
No loan shall be made unless such loan is exempt from the
tax imposed on prohibited transactions by Section 4975 of
the Code (or would be exempt from such tax if the
Participant were a disqualified person as defined in
Section 4975(e)(2) of the Code) by reason of Section
4975(d)(1) of the Code.
(3) SPECIAL RULES FOR PREDECESSOR PLAN PARTICIPANTS:
(a) Notwithstanding anything herein to the contrary, if any
loan from a Predecessor Plan to a participant or
beneficiary with respect to such Predecessor Plan is
outstanding as of December 31, 1998 (or such later date
as is established under Section (1)(b)), such loan shall
be maintained by this Plan, but may not be extended,
refinanced, renegotiated, renewed, or modified in any way
after December 31,
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1998 (or such later date as is established under Section
(1)(b)) except to the extent permitted under the terms of
this Article X. Except as otherwise provided in rules
established under Section (1)(b), any such loan shall be
maintained pursuant to the provisions of the applicable
Predecessor Plan, which are incorporated herein by
reference, and by the other documents applicable to such
loan, which are also incorporated herein by reference to
the extent required by law.
(4) PREEMPTION OF STATE USURY LAWS:
In any action to collect payments due under a Plan loan or to
foreclose on a security interest for a Plan loan, no party may
interpose state usury laws as a defense to nonpayment or foreclosure.
All such laws shall be deemed to be preempted by ERISA Section 514 to
the extent that they purport to relate to the Plan and loans
hereunder.
(5) SPECIAL RULE:
Loans under this Article X shall comply with the Soldiers' and
Sailors' Civil Relief Act of 1940, to the extent that such Act is
applicable.
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ARTICLE XI
ADMINISTRATION
(1) COMMITTEE:
The Corporation shall appoint a Committee to administer the Plan,
which Committee shall be the "administrator" and a "named fiduciary"
of the Plan (as such terms are defined in ERISA). Each member of the
Committee shall serve until the appointment of his successor unless
earlier removed by the Corporation for any or no reason. In the
event of a vacancy in the membership of the Committee, the remaining
members of the Committee may exercise any and all of the powers,
authority, duties, and discretion of the Committee during such
vacancy. A Participant may be a member of the Committee, but no
member of the Committee shall vote or otherwise participate in any
decision with respect to a matter that relates only to himself or any
of his rights or benefits under the Plan.
(2) PROCEDURES AND ADMINISTRATION:
The Committee shall meet upon such notice and at such places and
times as it may from time to time determine. A majority of the
Committee shall have the power to act with or without a meeting, and
the concurrence or dissent of any member may be registered by
telephone, e-mail, fax, wire, cablegram, letter, or other means
previously approved by the Committee. The Committee may appoint a
chairman and a secretary (who may or may not be a member of the
Committee). The Committee shall keep records of all its actions and
copies of all notices, certifications, and instructions sent to it by
the Corporation, the Trustee, or any other person. The Committee
may, by a written instrument signed by all its members and filed with
the Trustee, designate one or more of its members as having authority
to sign all papers and documents on its behalf. The Trustee may rely
upon any notice, instruction, or certification by the Committee
without inquiry into the acts or omissions of the Committee.
(3) ALLOCATION OF RESPONSIBILITIES:
The Board, the Corporation, the Employing Companies, the Committee,
the Trustees, and any Investment Manager possess specified powers,
duties, responsibilities, and obligations under the Plan and the
Trust Agreement. Except to the extent inconsistent with applicable
law, it is intended under the Plan and the Trust Agreement that each
entity shall be responsible solely for the proper exercise of its own
functions and shall not be responsible for any act or failure to act
of another. To the maximum extent permitted by law, all entities
described in
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the second preceding sentence, other than the Trustee and any
Investment Manager, shall, with respect to their acts and omissions
under the Plan and the Trust Agreement, be deemed to be acting in
their "settlor" capacity, as opposed to their fiduciary capacity.
(4) ADMINISTRATIVE POWERS AND DUTIES:
The Committee shall have the power to take all actions that it
determines, in its sole and absolute discretion, are necessary or
appropriate to carry out the provisions of the Plan, including, but
not limited to, the following powers and duties:
(a) To construe and interpret the provisions of the Plan and
to make rules and regulations under the Plan to the
extent deemed advisable by the Committee;
(b) To determine and decide all questions as to eligibility
for participation and benefits under the Plan and as to
the rights of Participants and Beneficiaries under the
Plan, and to render and review decisions respecting
claims for (or denials of claims for) benefits under the
Plan;
(c) To file or cause to be filed all such annual reports,
returns, schedules, descriptions, financial statements,
and other statements as may be required by any federal or
state statute, agency, or authority within the time
prescribed by law or regulation for filing such
documents;
(d) To furnish or make available for examination such
instruments, reports, notices, statements, descriptions,
and other documents to Employees, Participants,
Beneficiaries, and other individuals as may be required
by any federal or state statute or regulation in such
places, in such manner, and within the time prescribed
for furnishing or making available such documents and to
furnish the Employer with information required for tax or
other purposes;
(e) To determine such facts, and to obtain from any person
such information, as shall be necessary for the proper
administration of the Plan;
(f) To determine the amount, manner, and time of payment of
benefits under the Plan;
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(g) To appoint and retain agents, counsel, and accountants,
who may also serve the Company in similar capacities, for
the purpose of properly administering the Plan, and, when
required to do so by law or otherwise, to engage an
independent qualified public accountant to prepare an
audited financial statement of the Plan's operations;
(h) To communicate to the Trustee all information, and to
execute and deliver to the Trustee such forms and
documents, as may be required to carry out the provisions
of the Plan;
(i) To direct the Trustee with respect to the crediting and
debiting of amounts under Article VIII and to direct the
Trustee to distribute assets or funds of the Plan to
Participants and Beneficiaries in accordance with the
provisions of the Plan;
(j) To construe any uncertain terms and to correct any
defect, supply any omission, or reconcile any
inconsistency that may appear in the Plan in such manner
and to such extent as the Committee shall deem necessary
or appropriate to accomplish the purposes of the Plan;
(k) To determine from time to time an investment policy of
the Plan, consistent with the objectives of the Plan and
the requirements of ERISA, to the extent any assets of
the Plan are invested other than under the direction of
Participants;
(l) To authorize in writing the investment by the Trustee of
the Trust assets in accordance with the provisions of the
Trust Agreement and this Plan (including, to the extent
applicable, the investment policy described in subsection
(k));
(m) To authorize the Trustee to appoint and to remove an
ancillary trustee with respect to specified investments
of the Trust which may have a situs in a jurisdiction in
which the Trustee is not qualified to act, when necessary
or appropriate under applicable local law;
(n) To appoint (or remove) an Investment Manager or Managers,
each of whom will have full power and authority to
manage, acquire, or dispose (or to direct the Trustee
with respect to management, acquisition, or disposition)
of any Trust assets under its control;
(o) To authorize in writing all disbursements by the Trustee
from the Trust;
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(p) To do such other acts as are necessary or appropriate to
administer the Plan in accordance with its provisions or
as may be provided for or required by law.
The Committee shall have sole and absolute discretion in the exercise
of all of its powers and duties under this Section (3).
(5) DELEGATION OF RESPONSIBILITIES:
The Committee may create any subcommittee and grant to such
subcommittee any powers and responsibilities of the Committee under
this Plan. In addition, the Committee shall have the power to
delegate specified responsibilities under the Plan to employees of
the Employer or to other individuals or entities who shall serve at
the pleasure of the Committee. Any such person may resign by
delivering written notice to the Committee or be removed from his
designated responsibilities by written notice from the Committee.
Vacancies created by resignation, death, removal, or other causes may
be filled by the Committee or the assigned responsibilities may be
reabsorbed or redelegated by the Committee.
(6) COMPENSATION:
Except as otherwise provided in ERISA Section 412, no bond or other
security shall be required of any member of the Committee. The
members of the Committee shall serve without compensation for their
services as such, except that the properly incurred expenses of any
member of the Committee not otherwise reimbursed shall be reimbursed
pursuant to Article XIV(12).
(7) PROVISION OF INFORMATION BY EMPLOYER:
The Employer shall timely provide to the Committee all information
that the Committee deems necessary for the administration of the
Plan, including (but not limited to) information regarding the name,
date of birth, date of employment, compensation, leaves of absence,
term of service, and date of termination of employment of each
Employee who is or may be eligible to become a Participant under the
Plan.
(8) DOCUMENTS:
The Committee may require that any Participant or Beneficiary execute
and deliver any document or receipt that the Committee determines
necessary or appropriate to ensure proper payment of any benefit
under the Plan.
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(9) SERVICE OF PROCESS:
The Committee is designated as the agent for the service of legal
process on the Plan.
(10) SCOPE OF AUTHORITY:
It is intended that in exercising the powers granted in this Article
XI (including without limitation all powers and duties described in
Section (3)) and in all other parts of this Plan, the Committee shall
have the broadest discretion permitted by law. It is further
intended that, to the maximum extent permitted by law, any records,
decisions, determinations, or other acts made pursuant to such powers
by the Committee shall be final and binding on all persons. In the
event that any record, decision, determination, or other act referred
to in the prior sentence is the subject of judicial review, it is
intended that the Court shall give deference to such record,
decision, determination, or other act to the maximum extent permitted
by law.
(11) INDEMNIFICATION:
To the extent permitted by law, and subject to any agreement between
an Employing Company and an individual described in this Section
(10), the Employing Companies (a) shall jointly and severally
indemnify and hold harmless any employee of the Employer, any member
of the Committee, and any member of the board of directors of any
entity within the Employer, against any and all claims, losses,
damages, expenses, and liabilities (including reasonable expenses
incurred in defending against same) arising from any act or failure
to act that constitutes or is alleged to constitute a prohibited
transaction or a breach of such person's responsibilities in
connection with the Plan or Trust under ERISA or any other law,
unless the same is determined to be due to gross negligence, willful
misconduct, or willful failure to act. An Employing Company shall
have the right to control any controversy where the Employing Company
may be required to indemnify any individual under this Section. It
is contemplated that one or more Employing Companies may, if they so
desire, purchase insurance to cover their potential liability
hereunder.
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ARTICLE XII
AMENDMENT, TERMINATION, MERGER, AND CONSOLIDATION
(1) AMENDMENT OF PLAN:
(a) The Corporation may at any time amend any or all
provisions of this Plan in any respect (including
retroactively) to the maximum extent permitted by law.
Such an amendment may be made at any time by written
instrument identified as an amendment of the Plan
effective as of a specified date (or dates) and such
amendment shall be binding on all Employing Companies,
Participants, Beneficiaries, and other individuals and
entities.
(b) Notwithstanding anything to the contrary in Section
(1)(a), the vesting provisions of the Plan shall not be
amended so as to result in the vested percentage of the
Account balance of any Participant, determined as of the
later of the adoption date or effective date of such
amendment, being less than his vested percentage computed
under the Plan without regard to such amendment. If an
amendment to the Plan changes or adds any vesting
schedule hereunder, each Participant having at least
three years of Service will be permitted to elect, within
a reasonable period after the adoption of such amendment,
to have his vested percentage computed under the Plan
without regard to such amendment, unless such
Participant's vested percentage under the Plan, as
amended, cannot at any time be less than such percentage
computed without regard to such amendment. The
Committee, as soon as practicable after the adoption of
an amendment described in the preceding sentence, shall
provide a true copy of such amendment to each Participant
entitled to make an election, together with an
explanation of the effect of the amendment, the
appropriate form upon which the Participant may make an
election to remain under the vesting schedule provided
under the Plan prior to the amendment, and notice of the
time within which the Participant must make an election
to remain under the prior vesting schedule. The
Participant must file his election with the Committee
within 60 days of the latest of the adoption of the
amendment, the effective date of the amendment, and his
receipt of a copy of the amendment. For purposes of this
Section (1)(b), an amendment to the vesting schedule
includes any Plan amendment that directly or indirectly
affects the computation of the portion of a Participant's
Account attributable to Matching Contributions and
Nonelective Contributions in which he has a vested
interest.
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(2) TERMINATION OF PLAN:
(a) The Corporation expects to continue the Plan
indefinitely. However, the Corporation shall, to the
maximum extent permitted by law, have the right at any
time to terminate the Plan (including retroactively) in
whole or in part by suspending or discontinuing
contributions hereunder in whole or in part, or to
otherwise terminate the Plan (including retroactively).
In accordance with any amendment to the Plan that may be
adopted in connection with any such termination, the
Corporation may after such termination continue the Plan
and Trust in effect for the purpose of making
distributions under the Plan as they become payable, or
may authorize the distribution of all or any part of the
assets of the Trust Fund as to which the Plan has been
terminated. In the event of termination, the Committee
shall continue to administer the Plan and the Trustee
shall continue to administer the Trust as herein provided
for application and disbursement in accordance with the
Plan.
(b) Upon the termination or partial termination of the Plan
or upon the complete discontinuance of contributions (all
within the meaning of Section 411(d)(3) of the Code),
each affected Participant shall have a vested interest in
his Account as of the effective date of the termination
or discontinuance; provided, however, that a
Participant's recourse for satisfaction of such rights
shall be limited to the assets of the Plan. To the
extent permitted by the Code and ERISA, any amount held
in a suspense account pursuant to Treasury Regulation
Section 1.415-6(b)(6) (or any applicable successor
provision) shall revert to the Employer upon termination
of the Plan.
(3) MERGER, CONSOLIDATION, OR TRANSFER:
In the case of any merger or consolidation of the Plan with, or in
the case of any transfer of assets or liabilities of the Plan to, any
other plan, each Participant and Beneficiary in the Plan must be
entitled to receive a benefit immediately after the merger,
consolidation, or transfer, that satisfies the requirements of Code
Section 414(l). In the case of a merger of the Plan with one or more
other defined contribution plans, the first sentence of this Section
(3) shall be treated as satisfied if the following safe harbor
requirements are met:
(a) The sum of the account balances in each plan equals the
fair market value (determined as of the date of the
merger) of the entire plan assets;
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(b) The assets of each plan are combined to form the assets
of the plan as merged; and
(c) Immediately after the merger, each participant in the
plan as merged has an account balance equal to the sum of
the account balances the participant had in the plans
immediately prior to the merger.
In the case of a transfer of assets or liabilities of the Plan to any
other plan, such transfer shall be treated as a spinoff of a plan
with the transferred assets and/or liabilities and a merger of such
spunoff plan with the transferee plan. In the case of such a
spinoff, the first sentence of this Section (3) shall be treated as
satisfied if after the spinoff the following safe harbor requirements
are met:
(d) The sum of the account balances for each of the
participants in the resulting plans equals the account
balance of the participant in the plan before the
spinoff; and
(e) The assets in each of the plans immediately after the
spinoff equals the sum of the account balances for all
participants in that plan.
For purposes of subsections (a) and (e) above, the reference to
"account balances" shall include all separately maintained accounts
(whether called an account or not) in any plan referred to; for
example, with respect to the Plan, such term shall include, but shall
not be limited to, Accounts, the Loan Suspense Account, any suspense
account maintained under Article III(14)(e), any unallocated account
in which forfeitures may be held temporarily pending timely
allocation, and any segregated amount or other account maintained
pursuant to a qualified domestic relations order (within the meaning
of Code Section 414(p)) or pursuant to Article IX(6).
No merger, consolidation, or transfer shall take place if such
merger, consolidation, or transfer would cause this Plan to cease to
be a qualified plan.
(4) REPRESENTATIONS CONTRARY TO PLAN:
Except as otherwise provided in this Plan, no person or entity,
including any employee, officer, or director of the Employer, has
authority to alter, vary, or modify the terms of the Plan, except in
writing through the Plan's formal amendment procedures set forth in
this Article X. No representation contrary to the terms of the Plan
and the formal amendments thereto shall be binding on the Plan, the
Trust, the Trustee, the Committee, the Employer, or any other person
or entity.
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ARTICLE XIII
CLAIMS PROCEDURE AND DISPUTED CLAIMS
(1) CLAIMS FOR BENEFITS:
(a) It shall not be necessary for a Participant or
Beneficiary entitled to receive a benefit hereunder to
file a claim for such benefit with any person in order to
receive such benefit. However, any Participant or
Beneficiary who believes that he is entitled to receive a
benefit hereunder and has not received or begun receiving
a distribution of such benefit or who believes that he is
entitled to a benefit hereunder in excess of the benefit
which he has received or begun receiving, may file a
written claim for such benefit or increased benefit with
the Committee at any time up to the last day of the
12-month period that begins on the earlier of (i) the
date on which the claimant learned of facts sufficient to
enable the claimant to formulate such claim, or (ii) the
date on which the claimant reasonably should have been
expected to learn of facts sufficient to enable the
claimant to formulate such claim. Such written claim
shall set forth the Participant's or Beneficiary's name
and address and shall include a statement of the facts
and a reference to the pertinent provisions of the Plan
upon which such claim is based. A claimant who does not
timely and properly file his claim as herein required
shall to the extent permitted by law be conclusively
deemed to have waived any right to the benefit or
increased benefit not provided.
(b) Within 90 days after such claim is filed, the Committee
shall provide the claimant with written notice of its
decision with respect to such claim. If such claim is
denied in whole or in part, the Committee shall, in such
written notice to the claimant, set forth in a manner
calculated to be understood by the claimant the specific
reason or reasons for denial; specific references to
pertinent provisions of the Plan upon which the denial is
based; a description of any additional material or
information necessary for the claimant to perfect his
claim and an explanation as to why such material or
information is necessary; an explanation of the
provisions for review of claim denials set forth in this
Article XIII; and a statement that if the claimant fails
to seek review of the claim denial under this Article
XIII within the 60-day period described in Section (2),
he shall, to the extent permitted by law, be conclusively
deemed to have waived any right to contest in any forum
the determination of the Committee. If special
circumstances require additional time, the Committee may
extend the period allowed for notice of its decision
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by a period not to exceed 90 days. Written notice of
such extension, stating the circumstances requiring the
extension and the date by which a final decision is
expected, shall be provided to the claimant before the
expiration of the initial 90-day period. With respect to
any claim under this Section (1), in the event that the
Committee fails to provide the written notice described
in this Section (1)(b) within the time period described
herein, the claimant's claim shall be deemed to be denied
by the Committee.
(2) REVIEW OF CLAIM DENIALS:
A Participant or Beneficiary whose claim for benefits has
been denied may appeal such denial to the Committee and
receive a full and fair review of his claim by filing
with the Committee a written application for review at
any time within 60 days after the Committee gives him the
written notice of denial of his claim provided for in
Section (1) or, if no such notice has been given to the
Participant, within 60 days after the end of the 90-day
(or extended) period described in Section (1)(b). A
Participant or Beneficiary who submits a timely written
application for review shall be entitled to review any
and all documents pertinent to his claim and may submit
issues and comments to the Committee in writing. In the
sole and absolute discretion of the Committee, a hearing
may be held. Not later than 60 days after receipt of a
written application for review, the Committee shall give
the claimant written notice of its decision on review,
which shall set forth in a manner calculated to be
understood by the claimant specific reasons for its
decision and specific references to the pertinent
provisions of the Plan upon which the decision is based.
If special circumstances, including (but not limited to)
the need for a hearing as determined by the Committee,
shall require additional time for making a decision on
review, the period for decision may be extended by not
more than 60 days. Written notice of such extension,
stating the circumstances requiring the extension and the
date by which a final decision is expected, shall be
provided to the claimant before the expiration of the
initial 60-day period. With respect to any appeal under
this Section (2), in the event that the Committee fails
to provide the written notice described in this Section
(2) within the time period described herein, the appeal
shall be deemed to be denied. The decision of the
Committee, shall, to the maximum extent permitted by law,
be final and binding on all parties. A claimant who
shall not timely file his written application for review
as required shall, to the maximum extent permitted by
law, be
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conclusively deemed to have waived any right to
contest in any forum the initial determination of the
Committee.
(3) MISCELLANEOUS:
Any act permitted or required to be taken by a Participant or
Beneficiary by this Article XIII may be taken for and on behalf of
such Participant or Beneficiary by such Participant's or Beneficiary's
duly authorized representative. Any fees or expenses charged or
incurred by such representative shall be the liability of the
Participant or Beneficiary, and not the liability of the Employer, the
Plan, the Trust, the Committee, or any other person. Any claim,
notice, application, or other writing permitted or required to be
filed with, provided, or given to a party by this Article XIII shall
be deemed to have been filed, provided, or given when deposited in the
United States mail, postage prepaid, and properly addressed to the
party to whom it is to be provided or given or with whom it is to be
filed. Any such notice, application, or other writing directed to a
Participant or Beneficiary shall be deemed properly addressed if
directed to the address set forth in the written claim filed by such
Participant or Beneficiary.
(4) EXHAUSTION OF ADMINISTRATIVE REMEDIES:
No legal action to recover Plan benefits or to enforce or to clarify
rights under the Plan shall be commenced under Section 502(a)(1)(B) of
ERISA, or under any other provisions of law, whether or not statutory,
unless and until the claimant first shall have exhausted the claims
and appeal procedures available to the claimant hereunder in Sections
(1), (2), and (3). A claimant must raise all issues and present all
theories relating to his claim to the Committee at one time.
Otherwise, the claimant shall be deemed to have abandoned forever all
issues and theories not raised and presented to the Committee.
(5) LIMITATION ON ACTIONS:
Any suit brought to contest a decision of the Committee shall be filed
in a court of competent jurisdiction within one (1) year from receipt
of written notice of the Committee's final decision or from the date
the appeal is deemed denied, and any suit not filed within this
one-year limitation period shall be dismissed by the court.
(6) FEDERAL PREEMPTION:
All state law causes of action that arise out of or relate to the Plan
or to entitlement to rights or benefits under the Plan shall be deemed
to have been preempted by Section 514 of ERISA.
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(7) NO RIGHT TO JURY TRIAL; EVIDENCE:
In any suit contesting a decision of the Committee, all issues of fact
shall be tried by the court and not by a jury. No evidence may be
introduced in court which was not previously presented to the
Committee and no evidence may be introduced to modify or contradict
the terms of the Plan document.
(8) SCOPE OF REVIEW:
The Committee shall have full discretionary authority to interpret and
apply the terms of the Plan document and other relevant documents and
relevant provisions of law. Consistent with the provisions of Article
XI(10), this grant of authority shall be construed to be as broad as
permitted by law and shall include the authority to find facts, to
reach conclusions of law, to interpret and apply ambiguous terms, and
to supply missing terms reasonably necessary to resolution of claims
and appeals.
No finding of fact by the Committee shall be set aside by a court
unless the party contesting the finding shall prove by clear and
convincing evidence that the finding is arbitrary and capricious. No
conclusion of law reached by the Committee shall be reversed by a
court unless the party contesting the conclusion shall demonstrate
that the Committee is guilty of manifest disregard of law.
(9) LIMITATION ON DAMAGES:
In any suit over Plan benefits or rights, recovery shall be limited to
the amount of benefits found due, without interest, or to specific
enforcement of rights established under the Plan, and shall not
include any other damages whether denominated incidental, special,
consequential, collateral, compensatory, exemplary, punitive or
whatever.
(10) PARTICIPANT PLAN DATA:
The Committee may issue, or cause to be issued, from time to time,
statements to Employees, Participants, and Beneficiaries, indicating
eligibility, Service, or other data regarding their Plan benefits. If
any such individual wishes to challenge the accuracy of such data or
of any other information issued in response to a request within the
terms of Section 105(a) or 209(a)(1) of ERISA, the individual shall do
so in the manner and within the time limits set forth above in this
Article XIII.
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<PAGE> 125
(11) ADVISORS NOT FIDUCIARIES:
The Committee and other Plan fiduciaries may solicit the advice of
attorneys, actuaries, accountants, consultants, and other
professionals and may rely upon their advice in the performance of
duties under the Plan. No such advisor shall be considered a
fiduciary by virtue of having advised a fiduciary but shall be a
fiduciary only to the extent he expressly accepts that role.
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<PAGE> 126
ARTICLE XIV
MISCELLANEOUS
(1) TOP-HEAVY PROVISIONS:
The following provisions shall become effective in any Plan Year
subsequent to the 1983 Plan Year in which this Plan is a Top-Heavy
Plan.
(a) Top-Heavy Plan Status.
This Plan will be a Top-Heavy Plan for a given Plan Year
if as of the last day of the preceding Plan Year either
of the following situations occur:
(i) The ratio of the Accrued Benefits of
Participants in this Plan who are Key
Employees to the Accrued Benefits for all
Participants in this Plan exceeds
six-tenths (.6), or
(ii) This Plan is part of a Required Aggregation
Group, and the ratio of the Accrued
Benefits of Participants in any of the
aggregated plans who are Key Employees to
the Accrued Benefits of all Participants in
the aggregated plans exceeds six-tenths
(.6).
Notwithstanding anything in this subsection (a) to the
contrary, this Plan shall not be a Top-Heavy Plan in any
Plan Year in which this Plan is part of a Required or
Permissive Aggregation Group which is not Top-Heavy.
Neither shall this Plan be a Top-Heavy Plan if it is part
of a Permissive Aggregation Group which is Top-Heavy but
this Plan is not required to be part of a Required
Aggregation Group.
(b) Definitions.
"Key Employee" means a key employee as defined in Section
416(i) of the Code.
"Accrued Benefit" means the account balance of the
Participant in this Plan or any other defined
contribution plan of the Employer and in the case of a
defined benefit plan of the Employer, the Accrued Benefit
as defined under such plan, including any distribution
from the plan within the five-year period ending on the
last day of the preceding Plan Year. If any individual
has not received any Compensation from the Employer
(other than benefits under the Plan) at any time during
the
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<PAGE> 127
five-year period ending on the last day of the preceding
Plan Year, any Accrued Benefit for such individual shall
not be taken into account.
"Required Aggregation Group" means all of the qualified
plans of the Employer in which a Key Employee is a
Participant, or which are necessary for such a plan to
satisfy the requirements of Sections 401(a)(4) or 410 of
the Code.
"Permissive Aggregation Group" means all of the plans of
the Employer which are included in the Required
Aggregation Group plus any plans of the Employer which
are not included in the Required Aggregation Group, but
which satisfy the requirements of Sections 401(a)(4) and
410 of the Code when considered together with the
Required Aggregation Group.
(c) Minimum Benefit.
The yearly minimum contribution to this Plan for an
employee with respect to Plan Years during which this
Plan is Top-Heavy, shall be equal to the lesser of (i) 3%
of the Participant's compensation (as determined under
Code Section 416(i)) for such Plan Year; or (ii) the
highest percentage of compensation (as determined under
Code Section 416(i)) allocated on behalf of a Key
Employee to this Plan in the form of Before-Tax
Contributions, QNECs, Matching Contributions, or other
Employer contributions. The minimum contribution shall
be made regardless of whether the Employee was a
Participant in the Plan during such Top-Heavy Plan Years
provided that he was eligible to participate. However,
if any employee eligible to participate in this Plan
receives the minimum benefit required under Section 416
of the Code under any defined benefit plan maintained by
the Employer, this subsection (c) shall not be applicable
with respect to such employee.
If the Money Purchase Pension Component is granted a
minimum funding standard waiver under Code Section 412(d)
for a Plan Year, the minimum amount required to be
allocated under the Money Purchase Pension Component to
each Participant (without regard to the waiver) shall be
credited to the portion of the Participant's Account
under the Money Purchase Pension Component. The Account
balance shall be adjusted to reflect the credit in
accordance with Revenue Ruling 78-223.
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<PAGE> 128
(d) Excessively Top-Heavy Plan.
In the event the ratio described in subsection (a) of
this Article XIV(1) exceeds nine-tenths (.9), then the
definitions of the Defined Benefit Plan Fraction and the
Defined Contribution Plan Fraction shall be modified in
accordance with Code Section 416(h). For any Limitation
Year in which the Plan is a Top-Heavy Plan, but not a
plan to which this subsection (d) applies, the percentage
described in the minimum contribution provision of
subsection (c) shall be 4% in lieu of 3% indicated
therein.
(2) PROHIBITION AGAINST ALIENATION:
Except as otherwise provided in this Plan, no Participant or
Beneficiary shall have any right to withdraw, assign (either at law
or in equity), pledge, transfer, appropriate, encumber, commute,
alienate, or anticipate his interest in the Plan and Trust, or any
payments to be made hereunder, and no benefits, payments, rights, or
interest of such a person under the Plan shall be in any way subject
to any legal or equitable process to levy or execute upon, charge,
garnish, or attach the same for payment of any claim against such
person, nor shall any such person have any right of any kind
whatsoever with respect to the Plan and Trust, or any estate or
interest therein, or with respect to any other property or rights,
other than the right to receive such distributions as are made out of
the Trust, as and when the same are or shall become due and payable
under the terms of the Plan. Any attempt to transfer, pledge, or
levy upon or otherwise alienate an interest of a Participant or
Beneficiary shall be invalid except as otherwise provided in this
Plan.
(3) RELATIONSHIP BETWEEN EMPLOYING COMPANIES AND EMPLOYEES:
The adoption and maintenance of the Plan shall not be deemed to
constitute or modify a contract between any Employer and any Employee
or Participant or to be a consideration or inducement for or
condition of the performance of services by any person. Nothing
herein contained shall be deemed to give to any Employee or
Participant the right to continue in the service of any Employer, to
interfere with the right of an Employer to discharge any Employee or
Participant at any time, or to give an Employer the right to require
an Employee or Participant to remain in its service or to interfere
with his right to terminate his service at any time.
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<PAGE> 129
(4) PARTICIPANTS' BENEFITS LIMITED TO ASSETS:
Each Participant by his participation in the Plan and Trust, shall be
conclusively deemed to have agreed to look solely to the Trust Fund,
and not to any other person, entity, or assets for the payment of any
benefit to which he may be entitled by reason of his participation,
and to have consented to all of the terms and conditions of the Plan,
as the same may be amended from time to time, and shall be bound
thereby with the same force and effect as if he were a party to this
Plan.
(5) TITLES AND HEADINGS:
The titles and headings of the articles and sections in this Plan are
placed herein for convenience of reference only, and in case of any
conflicts, the text of this Plan, rather than the titles or headings,
shall control.
(6) GENDER AND NUMBER:
The masculine pronoun, wherever used herein, shall include the
feminine pronoun, and the singular shall include the plural, except
where the context requires otherwise.
(7) APPLICABLE LAW:
The provisions of this Plan shall be construed according to the laws
of the State of Iowa, except to the extent that they are preempted by
ERISA or by other federal law. The Plan is intended to comply with
ERISA and the Code.
(8) INABILITY TO LOCATE PAYEE:
Anything to the contrary herein notwithstanding, if the Committee is
unable, after a reasonable effort, to locate any Participant or
Beneficiary to whom an amount is distributable hereunder, such amount
shall be forfeited. Notwithstanding the foregoing, however, such
amount shall be reinstated, by means of an additional contribution by
the applicable Employing Company or Companies if and when a valid
claim for the forfeited amount is subsequently made by such
Participant or Beneficiary or if the Committee receives proof of
death of such person, satisfactory to the Committee; in such case,
payment of the reinstated amount shall be made in accordance with the
provisions of this Plan. No such additional contribution shall
reduce the contributions otherwise required under this Plan. Any
benefits lost by reason of applicable state law relating to escheat
or abandoned property shall be considered forfeited but shall not be
subject to reinstatement.
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<PAGE> 130
(9) INCOMPETENCE OF PAYEE:
In the event any benefit is payable to a minor or incompetent, to a
person otherwise under legal disability, or to a person who, in the
sole judgment of the Committee is by reason of advanced age, illness,
or other physical or mental incapacity incapable of handling the
disposition of his property, the Committee may direct the Trustee to
apply the whole, or any part of such benefit, directly to the care,
comfort, maintenance, support, education, or use of such person, or
pay or distribute the whole or any part of such benefit to (a) the
parent of such person, (b) the guardian, committee, or other legal
representative, wherever appointed, of such person, (c) the person
with whom such person resides, (d) any person having the care and
control of such person, or (e) such person personally. The receipt
by the person to whom any such payment or distribution is so made
shall constitute a full and complete discharge of the rights of
affected Participants, former Participants, and Beneficiaries under
the Plan.
(10) DEALING WITH THE TRUSTEE:
No person dealing with the Trustee shall be obliged to see to the
application of any property paid or delivered to the Trustee or to
inquire into the expediency or propriety of any transaction or the
Trustee's authority to consummate the same, except as may
specifically be required of such person under ERISA.
(11) RETURN OF CONTRIBUTIONS:
(a) All contributions to the Plan are expressly conditioned
on the initial qualification of the Plan under Section
401 of the Code, and if such qualification shall be
denied, the Employing Companies shall be entitled to
receive a return of contributions made after the
effective date of such denial, net of any losses
attributable thereto and together with any earnings
thereon, as soon as practicable but in any event within
one year after the denial of qualification of the Plan.
(b) The Employing Companies' contributions to the Plan are
conditioned upon the deductibility of such contributions
under Section 404 of the Code for the taxable year for
which made, and the Employing Companies shall be entitled
to receive a return of any contribution, net of any
losses attributable thereto, to the extent deduction of
such contribution is disallowed, within one year after
such disallowance.
(c) If a contribution is made to the Plan by an Employing
Company by a mistake of fact, the Employing Company shall
be entitled to receive a return of such contribution, net
of any losses attributable thereto, within one year after
the making of such contribution.
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<PAGE> 131
(12) EXPENSES:
All reasonable expenses of administering and operating the Plan and
Trust (including Trustee fees and expenses) shall be paid from the
assets of the Trust Fund except to the extent paid by the Employing
Companies, provided that the Employing Companies shall be reimbursed
from the Trust Fund for any such expenses that are paid by the
Employing Companies under an arrangement pursuant to which the Trust
Fund shall reimburse the Employing Companies. Expenses that are paid
from the assets of the Trust Fund shall be, to the extent necessary,
charged to Participants' Accounts in a manner determined by the
Committee in its sole and absolute discretion, provided that such
manner shall comply with applicable law.
(13) SEPARABILITY:
If any provision of this Plan is found, held, or deemed to be void,
unlawful, or unenforceable under any applicable statute or other
controlling law, the remainder of this Plan shall continue in full
force and effect.
(14) PARTICIPANTS' PROTECTED RIGHTS:
In addition to all rights expressly provided under this document, a
Participant or Beneficiary shall have such rights as are required to
be provided to such person by reason of Code Section 411(d)(6). Any
Plan provision in conflict with the preceding sentence shall be void
to the extent of such conflict.
(15) CODE SECTION 414(u):
(a) Notwithstanding any provision of this Plan to the
contrary, contributions, benefits, and service credit
with respect to qualified military service will be
provided in accordance with Code Section 414 (u).
(b) Loan repayments will be suspended under this Plan as
permitted under Code Section 414(u)(4).
(16) OFFSETS:
The Plan shall apply any offset described in Code Section
401(a)(13)(C) in the manner described therein.
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<PAGE> 132
(17) COMMITTEE AUTHORITY:
The Committee shall comply with all requirements of applicable law
with respect to Distributions and is authorized to do so in any
manner determined by the Committee in its sole and absolute
discretion. Thus, for example, the Committee is authorized to act in
any manner that complies with Treasury Regulation Section
1.411(a)-11(c)(2) (or any applicable successor provision) and, as
provided in Section (8)(i), is authorized to act in any manner that
complies with Code Section 417(a)(3)(A) (taking into account Code
Section 417(a)(7)) (to the extent applicable under the law).
(18) ACTIONS BY CORPORATION:
(a) All powers, authority, and duties that are provided to
the Corporation under this Plan may be exercised on
behalf of the Corporation by any officer of the
Corporation or by the Committee.
(b) Any exercise of a power, authority, or duty under this
Plan by an officer of the Corporation or by the Committee
on behalf of the Corporation shall be treated as an
exercise of such power, authority, or duty by the
Corporation without regard to whether such exercise was
authorized or approved by the Board of Directors,
provided that (i) this subsection (b) shall not apply to
the extent inconsistent with applicable law, (ii) an
amendment of the Plan that increases the rate of benefit
accrual under the Plan or increases the cost of the Plan
to the Employing Companies must be authorized or approved
by the Board of Directors unless the Board of Directors
delegates this authority in writing to the Committee, or
unless the Plan amendment is required by the Code, ERISA,
or other applicable law, and (iii) the termination of the
Plan and the appointment and removal of members of the
Committee must be authorized or approved by the Board of
Directors.
(c) Except to the extent inconsistent with applicable law,
any exercise of a power, authority, or duty by the
Committee pursuant to this Section (18) shall be treated
as an action taken on behalf of the Corporation in its
"settlor" capacity and shall not be treated as taken in
the Committee's capacity as the "administrator" or a
"named fiduciary" of the Plan (as such terms are defined
in ERISA).
(19) TREATMENT OF THE PLAN AND THE MONEY PURCHASE PENSION PLAN:
Notwithstanding any provision in this document to the contrary, the
provisions of this Section (19) shall apply.
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<PAGE> 133
(a) Prior to the January 1, 1999 merger of the Money Purchase
Pension Plan into the Plan:
(i) No assets of the Money Purchase Pension
Plan shall be available to provide benefits
under the Plan;
(ii) No assets of the Plan shall be available to
provide benefits under the Money Purchase
Pension Plan;
(iii) The Money Purchase Pension Plan and the
Plan shall each constitute a "single plan"
within the meaning of Treasury Regulation
Section 1.414(1)-1(b)(1) (or any applicable
successor provision).
(b) To the extent not inconsistent with the provisions of
Article XIV(19)(a) and applicable law, assets of the Plan
and assets of the Money Purchase Pension Plan may be held
in the same trust.
(20) APPENDICES:
The Appendices to this Plan shall for all purposes be treated as a
part of this Plan. All provisions of this Plan shall apply with
respect to the Appendices except for provisions that (a) are not
required by law, (b) are inconsistent with the Appendices, and (c)
are not, in context, intended to override the Appendices.
(21) MULTIPLE EMPLOYER PLAN:
To the extent that more than one Employer (within the meaning of the
second sentence of Article I(41)) has adopted this Plan (and has not
terminated such adoption), this Plan shall be treated as a plan
described in Code Section 413(c). Notwithstanding the foregoing,
this Plan document shall be construed, and the Plan shall be
operated, as if all Employers (including Employers that may be
separate under the second sentence of Article I(41)) were a single
Employer, except to the extent that the law requires otherwise or to
the extent that the context clearly requires otherwise.
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ARTICLE XV
ADOPTION AND WITHDRAWAL FROM PLAN
(1) PROCEDURE FOR ADOPTION:
Subject to Section (3), any entity described in Article I(42)(b), (c),
or (d) may adopt the Plan for the benefit of its Employees as of a
date specified, provided that no such adoption shall be effective
until such adoption has been approved by the Committee. Any entity
that adopts the Plan in accordance with this Article XIII agrees to be
bound by all the terms, provisions, conditions, and limitations of the
Plan and the accompanying Trust Agreement which are pertinent to any
entity defined as an Employing Company in the Plan. Such entity
further agrees that the Corporation and/or the Committee shall act for
the entity and its Employees, Participants, and Beneficiaries under
the provisions of the Plan and the Trust Agreement. Such entity
further agrees to furnish from time to time such information with
reference to its Employees as may be required by the Committee.
(2) PROCEDURE FOR WITHDRAWAL:
Any Employing Company (other than the Corporation) may, subject to
such conditions as may be imposed by the Corporation, terminate its
adoption of the Plan. Upon discontinuance of an Employing Company's
participation in the Plan, the Committee may, in its sole and absolute
discretion, cause a determination to be made of the equitable part of
the Plan assets held on account of Participants of the withdrawing
Employing Company and their Beneficiaries. The Committee may, in its
sole and absolute discretion, direct the Trustee to transfer assets
representing such equitable part to a separate fund for the plan of
the withdrawing Employing Company. Such withdrawing Employing Company
may thereafter exercise, in respect of such separate fund, all the
rights and powers reserved to the Corporation with respect to Plan
assets. The plan of the withdrawing Employing Company shall, until
amended by the withdrawing Employing Company, continue with the same
terms as the Plan herein, except that with respect to the separate
plan of the withdrawing Employing Company, the words "Employer,"
"Employing Company," and "Corporation" shall thereafter be considered
to refer only to the withdrawing Employing Company. Any transfer of
assets under this Section (2) shall be effected in a manner that
complies with Article XII(3).
(3) ADOPTION OF PLAN BY UNRELATED EMPLOYERS:
Companies that are not described in Article I(42)(b) or (c) may adopt
the Plan only if authorized to do so by the Corporation. Such
authorization may extend to an individual company or to a group of
related companies. Any such
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company that is authorized to adopt the Plan for the benefit of its
Employees shall do so in accordance with Section (1). Any company
that adopts the Plan in accordance with this Section (3) and Section
(1) shall be deemed to be an Employing Company hereunder and shall be
subject to all terms of the Plan applicable to an Employing Company.
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ARTICLE XVI
SPECIAL EFFECTIVE DATES
Except as otherwise provided in this Plan, this 1998 Amendment and
Restatement shall be effective as of January 1, 1998.
Notwithstanding anything in this Plan or the Predecessor Plans to the
contrary, the Plan and each Predecessor Plan are hereby amended as follows,
provided that, in the case of any Predecessor Plan with a Plan Year or
Limitation Year that is not the calendar year, a reference to a January 1 date
in Sections (1)-(5), (8), and (12) shall be deemed to be a reference to the
first day on which the applicable change in the law applied to such Predecessor
Plan:
(1) HIGHLY COMPENSATED EMPLOYEE STATUS AND DEFINITION:
Article III(16) and Article I(60) shall apply to this Plan and all
Predecessor Plans as of January 1, 1997.
(2) NONDISCRIMINATION TESTING:
(a) Article III(12)(h) shall apply to the Plan and all
Predecessor Plans as of January 1, 1997.
(b) As of January 1, 1997, the Plan and all Predecessor Plans
shall reflect the modifications to Code Sections
401(k)(8) and 401(m)(6) set forth in section 1433(e) of
the Small Business Job Protection Act of 1996, which
modifications are also contained in Article III(12)(b)
and (c).
(3) COMPENSATION UNDER CODE SECTION 415:
As of January 1, 1998, the Plan and all Predecessor Plans shall
reflect the modifications to Code Section 415 set forth in section
1434 of the Small Business Job Protection Act of 1996, which
modifications are also contained in Article I(99) and Article
III(14).
(4) CONTRIBUTIONS ON BEHALF OF DISABLED EMPLOYEES:
As of January 1, 1997, the Plan and all Predecessor Plans shall
reflect the modifications to Code Section 415 set forth in section
1446 of the Small Business Job Protection Act of 1996, which
modifications are also contained in Article III(14).
(5) LEASED EMPLOYEES:
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<PAGE> 137
As of January 1, 1997, the Plan and all Predecessor Plans shall
reflect the modifications to Code Section 414(n) set forth in section
1454 of the Small Business Job Protection Act of 1996.
(6) CODE SECTION 414(u):
Article XIV(15) shall apply to this Plan and all Predecessor Plans as
of December 12, 1994.
(7) OFFSETS:
Article XIV(16) shall apply to the Plan and all Predecessor Plans
with respect to judgments, orders, and decrees issued, and settlement
agreements entered into, on or after August 5, 1997.
(8) DISTRIBUTIONS OF SMALL AMOUNTS:
Article IX(7)(a) and Article IX(8)(k) shall apply to the Plan and all
Predecessor Plans as of January 1, 1998.
(9) WITHDRAWAL RESTRICTIONS:
Article IV(1)(e) and Article IV(2)(b) shall apply to the Plan as of
January 1, 1999.
(10) MERGER:
As provided in the Introduction to this Plan, the merger of the Money
Purchase Pension Plan, the AmVestors Financial Corporation Money
Purchase Pension Plan, and the AmVestors Financial Corporation
Employees' Stock Ownership Plan into this Plan is effective as of
January 1, 1999. This January 1, 1999 effective date shall also
apply to all other provisions of the Plan that are based on such
merger, such as other provisions relating to the Prior Plans.
Notwithstanding anything herein to the contrary, the merger of the
Money Purchase Pension Plan and the AmVestors Financial Corporation
Money Purchase Pension Plan into the Plan as of January 1, 1999 is
contingent on the issuance by the Internal Revenue Service of a
favorable determination letter with respect to the qualified status
of this Plan, which letter (a) shall include consideration of such
merger and this 1998 Amendment and Restatement and (b) may be issued
after January 1, 1999. Accordingly, if such a letter is not issued
within the remedial amendment period (as defined under Code Section
401(b)) applicable to this 1998 Amendment and Restatement, the merger
shall be deemed not to have occurred, provided that if such a merger
is deemed not to have occurred, the merger of the AmVestors Financial
Corporation Money Purchase
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<PAGE> 138
Pension Plan into the Money Purchase Pension Plan shall be deemed to
have occurred as of January 1, 1999.
(11) COMMITTEE AUTHORITY:
Article XIV(17) shall apply to this Plan and all Predecessor Plans as
of the earliest date permitted by applicable law, determined
separately with respect to each aspect of Article XIV(17).
(12) EXPLANATION OF ELECTION:
As of January 1, 1997, Article IX(8)(i) shall apply to the Plan and
shall apply to any Predecessor Plan to which Code Section 401(a)(11)
applied in whole or in part.
(13) MERGER, CONSOLIDATION, OR TRANSFER:
Article XII(3) shall apply to the Plan and all Predecessor Plans as
of January 1, 1998.
(14) ESOP:
The ESOP Feature and the Stock Bonus Component shall apply to the
Plan as of January 1, 1999. This January 1, 1999 effective date
shall also apply to all other provisions of the Plan that are based
on the provisions of the ESOP Feature or the Stock Bonus Component,
such as other provisions relating to the ESOP Fund.
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<PAGE> 139
IN WITNESS WHEREOF, AmerUs Life Holdings, Inc. has caused
this instrument to be executed on this ____ day of ____________, 1998.
<TABLE>
<S> <C>
AMERUS LIFE HOLDINGS, INC.
By:
-------------------------------
Title: Chairperson, AmerUs Benefit and Pension Committee
-------------------------------------------------
WITNESS:
- ------------------------
</TABLE>
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<PAGE> 140
APPENDIX A:
EMPLOYING COMPANIES
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------
First subsequent date (if
First date on or after January 1, any) on which the employer
1998, on which the employer is an ceased to be an Employing
Name of Employing Company Employing Company Company
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C>
Edina Realty Mortgage, formerly known as 1/1/98 3/31/98
First Edina Mortgage L.L.C.
- -----------------------------------------------------------------------------------------------------------
Home Real Estate 1/1/98 5/8/98
- -----------------------------------------------------------------------------------------------------------
AmerUs Insurance, Inc. 1/1/98 5/27/98
- -----------------------------------------------------------------------------------------------------------
First Realty, Ltd. 1/1/98 5/27/98
- -----------------------------------------------------------------------------------------------------------
IMO Co., Inc. d/b/a/ Carol Jones, 1/1/98 5/27/98
Realtors
- -----------------------------------------------------------------------------------------------------------
Iowa Realty, Inc. 1/1/98 5/27/98
- -----------------------------------------------------------------------------------------------------------
Iowa Title 1/1/98 5/27/98
- -----------------------------------------------------------------------------------------------------------
Midland Escrow Services, Inc. 1/1/98 5/27/98
- -----------------------------------------------------------------------------------------------------------
AmerUs Direct 1/1/98 7/31/98
- -----------------------------------------------------------------------------------------------------------
AmerUs Bank 1/1/98 7/31/98
- -----------------------------------------------------------------------------------------------------------
AmerUs Investment Services 1/1/98 7/31/98
- -----------------------------------------------------------------------------------------------------------
AmerUs Group, Co. 1/1/98
- -----------------------------------------------------------------------------------------------------------
AmerUs Life Holdings, Inc. 1/1/98
- -----------------------------------------------------------------------------------------------------------
AmerUs Life Insurance Company 1/1/98
- -----------------------------------------------------------------------------------------------------------
AmerUs Mortgage, Inc. 1/1/98
- -----------------------------------------------------------------------------------------------------------
AmerUs Properties 1/1/98
- -----------------------------------------------------------------------------------------------------------
Delta Life and Annuity 4/1/98
- -----------------------------------------------------------------------------------------------------------
AmerUs Capital Management 8/1/98
- -----------------------------------------------------------------------------------------------------------
AmerUs Home Equity 8/1/98
- -----------------------------------------------------------------------------------------------------------
AmVestors Financial Corporation 1/1/99
- -----------------------------------------------------------------------------------------------------------
</TABLE>
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<PAGE> 141
APPENDIX B
CALCULATION OF SUPPLEMENTAL PERCENTAGE
With respect to a Plan Year, each Eligible Nonelective Contribution
Employee who was an active participant in the American Mutual Life
Insurance Company Pension Plan, as amended and restated effective
December 31, 1995 (the "DB Plan"), on December 31, 1995, may have an
Interim Supplemental Contribution made on his behalf. A Participant's
Interim Supplemental Contribution for a Plan Year is the product of
the Participant's Supplemental Percentage as determined below and the
Participant's Compensation for the Plan Year as determined in this
Plan.
The actuarial assumptions for determining the Supplemental Percentage
are as follows:
(a) Compensation is projected using a 4.5% salary scale;
(b) The taxable wage base is assumed to increase 4.0% per year;
(c) The Participant's accounts in any defined contribution plan
are assumed to accrue 8.0% interest per year;
(d) Conversion of a DC Plan account balance at age 65 to an annual
benefit is accomplished by using the 1983 GAM mortality table
(50% male/50% female) and 8% interest; and
(e) Conversion of a DB Plan benefit to a single sum is
accomplished using the 1983 GAM mortality table (50% male/50%
female), and the annual interest rate on 30-year Treasury
securities for August 1995 (6.86%).
The procedure for determining the Supplemental Percentage is as
follows:
FIRST STEP. The first step is to determine the retirement benefit
that a Participant would have received had the DB Plan (and any
nonqualified plan of deferred compensation) covering that Participant
not been frozen on December 31, 1995, and had the American Mutual and
Central Life defined contribution plans which covered that Participant
on December 31, 1995 ("DC Plans") remained in effect. This
calculation is made as follows:
(a) The Participant's Compensation at age 64 is projected;
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(b) The amount of annual retirement income the Participant would
have received as a life annuity beginning at age 65 from the
DB Plan, the DC Plans, and nonqualified plans of deferred
compensation covering the Participant is determined by
assuming the Participant remained covered under those plans
until age 65, and assuming further that the provisions of such
plans remained unchanged until the Participant's 65th
birthday. For this purpose, it is assumed that a Participant
covered under the American Mutual Plans described in Appendix
D would receive a Company contribution equal to 4.5% of
Compensation for each Plan Year until the Participant's 65th
birthday, and Participants covered under the Central Life
Plans described in Appendix C would receive an Employer
contribution equal to 3.0% of Compensation until the
Participant's 65th birthday.
(c) The result in (b) is divided by the result in (a).
SECOND STEP. The second step is to determine the retirement benefit
that a Participant would receive under this Plan, the frozen DB Plan
which covered him and any nonqualified plan of deferred compensation,
if there were no Interim Benefit Supplement. This calculation is made
as follows:
(a) The amount of annual retirement income the Participant would
have received as a life annuity beginning at age 65 is
determined, assuming that he received Employer contributions
equal to 9.0% of Compensation to his Accounts under this Plan
beginning on January 1, 1996, and ending on the Participant's
65th birthday.
(b) The amount of annual retirement income the Participant would
have received from a life annuity beginning at age 65 is
determined, assuming that he had transferred the single-sum
value of his accrued benefit under the DB Plan to this Plan,
transferred any "defined benefit" nonqualified plan balance to
a nonqualified defined contribution plan and had not made
withdrawals from the account holding such transferred amount.
(c) The sum of (a) and (b) is divided by the Participant's
projected Compensation at age 64.
THIRD STEP. The third step is to determine the Supplemental
Percentage. This calculation is performed as follows:
(a) The result of the Second Step is subtracted from the First
Step. If the result is 0 or less, the Supplemental Percentage
is 0.
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(b) If (a) is greater than 0, the percentage of age 64
Compensation that is provided by a 1% Supplemental Percentage
is determined.
(c) Divide (a) by (b). This is the Supplemental Percentage.
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APPENDIX C
CENTRAL LIFE PLAN
C.01 BACKGROUND:
Prior to January 1, 1996, certain Plan Participants were covered by
the American Mutual Life Insurance Company Flexible Savings Plan
("Central Life Plan"). The accounts Participants had under the Central
Life Plan have been transferred to this Plan. This Appendix contains
special rules that apply to Participants who were participants in the
Central Life Plan.
C.02 SERVICE:
Years of service credited under the Central Life Plan as of December
31, 1995, shall be credited under this Plan.
C.03 ACCOUNTS:
Accounts transferred from the Central Life Plan shall be administered
under this Plan as follows:
(a) A Participant's Central Life Plan Salary Reduction Account
shall be treated in the same manner as Before-Tax
Contributions;
(b) A Participant's Central Life Plan Matching Account shall be
treated in the same manner as Matching Contributions;
(c) A Participant's Central Life Plan Profit-Sharing Account shall
be treated in the same manner as Discretionary Allocations;
and
(d) A Participant's Central Life Plan Rollover Account shall be
treated in the same manner as Rollover Contributions.
C.04 INVESTMENT OPTIONS:
Funds invested in the options available under the Central Life Plan
may remain invested in those options. However, any change in
investments is restricted to Investment Funds available under the
Plan.
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APPENDIX D
AMERICAN MUTUAL PLANS
D.01 BACKGROUND:
Prior to January 1, 1996, certain Plan Participants were covered by
the American Mutual Life Insurance Company Employee's Savings Plus
Plan and the American Mutual Life Insurance Company Employee's
Progress Sharing Plan ("American Mutual Plans"). The accounts
Participants had under the American Mutual Plans have been transferred
to this Plan. This Appendix contains special rules that apply to
Participants who were participants in the American Mutual Plans.
D.02 SERVICE:
Periods of employment which constitute years of Service under the
American Mutual Plans shall be credited under this Plan. However,
there shall be no double service credit for any single period of
employment.
D.03 ACCOUNTS:
Accounts transferred from the American Mutual Plans shall be
administered under this Plan as follows:
(a) A Participant's Employer Contribution Account under the
Savings Plus Plan shall be treated in the same manner as
Before-Tax Contributions;
(b) A Participant's Employer Contribution Account under the
Progress Sharing Plan shall be treated in the same manner as
Discretionary Allocations;
(c) A Participant's Employee Rollover Contribution Account under
the Savings Plus Plan shall be treated in the same manner as
Rollover Contributions; and
(d) A Participant's Employee After-Tax Account under the Savings
Plus Plan shall be maintained as a separate subaccount under
this Plan. A Participant always shall be 100% vested in that
subaccount, and may make withdrawals from this subaccount at
any time. However, a Participant shall not be permitted to
repay amounts withdrawn from the subaccount.
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D.04 INVESTMENT OPTIONS:
Funds invested in the options available under the American Mutual
Plans may remain invested in those options. However, any change in
investments is restricted to Investment Funds available under the
Plan.
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APPENDIX E
IOWA REALTY PLANS
E.01 BACKGROUND:
Prior to January 1, 1996, some Plan Participants were covered by the
Iowa Realty Company, Inc. Profit Sharing Plan, the Iowa Realty
Company, Inc. Money Purchase Pension Plan, and the Iowa Realty Co.,
Inc. Employee's 401(k) Savings Plan ("Iowa Realty Plans").
Participants' accounts under the Iowa Realty Plans ("Iowa Realty
Accounts") have been transferred to this Plan. This Appendix contains
special rules that apply to Participants who were participants in the
Iowa Realty Plans. Section references are to this Plan.
E.02 ACCOUNTS:
Iowa Realty Accounts shall be administered as follows, except as
otherwise provided in this Appendix E:
(a) A Participant's Elective Deferral Contribution Account under
the Iowa Realty 401(k) Plan shall be treated like Before-Tax
Contributions;
(b) A Participant's Discretionary Contribution Account under the
Iowa Realty Profit Sharing Plan shall be treated like
Discretionary Allocations;
(c) A Participant's Rollover Contribution Accounts under the Iowa
Realty 401(k) and Profit Sharing Plans shall be treated like
Rollover Contributions; and
(d) A Participant's Account under the Iowa Realty Money Purchase
Pension Plan shall be maintained as a separate subaccount
("Pension Account") under this Plan. No distributions may be
made from the Pension Account before a Participant's
Termination of Employment or death, unless distributions are
required under Article IX(7)(c).
E.03 INVESTMENT SELECTIONS:
Accounts from the Iowa Realty Plans may remain invested as before.
However, any change is restricted to Investment Funds available under
this Plan.
E.04 ADDITIONAL FORMS OF BENEFIT:
A Participant may designate that his Iowa Realty Accounts shall be
payable in any of the forms described in Article IX(3), or in one of
the following: single
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life annuities of five, ten, or fifteen years; survivorship life
annuities with installment refund and survivor percentages of 50,
66-2/3, or 100; fixed period annuities for any period of whole months
which is not less than 60 and does not exceed the life expectancy of
the Participant and his Beneficiary.
The annuity provider shall be selected as provided in Article
IX(4)(b).
Elections under this Section E.04 shall require spousal consent.
E.05 REPAYMENT OF DISTRIBUTIONS:
Notwithstanding Article VII(4), a Participant described in Section
E.01, who has forfeited a portion of his Employer-derived Account and
returns to the employ of the Employer, shall have his Employer-derived
Account balance restored no later than:
(a) The date specified in Article VII(4); or
(b) The close of the Break Period specified in Section E.07(b).
E.06 VESTING:
Any Employee who was previously covered under the Iowa Realty Profit
Sharing Plan or the Iowa Realty Money Purchase Plan or both on
December 31, 1995 will become fully vested on January 1, 1996 in the
balance of his or her Account attributable to participation in either
the Iowa Realty Profit Sharing Plan or the Iowa Realty Money Purchase
Plan.
E.07 YEARS OF SERVICE:
Periods of employment which constitute years of Service under the Iowa
Realty Plans shall be credited under this Plan for all purposes.
However, there shall be no duplicate service credit for any single
period of employment.
For purposes of Section E.06, the following rules shall apply,
notwithstanding anything in Article I or Article VII to the contrary:
(a) A Participant shall receive credit for a "Year of Service," if
he earns 1,000 Hours of Service during a Plan Year. If the
Participant fails to earn the requisite Hours of Service, he
shall receive no service credit for employment during that
Plan Year.
(b) If a Participant returns to the employ of the Employer after a
Break Period:
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(1) Years of Service earned prior to the break will be
ignored, unless the Participant was vested in some
portion of his Employer-derived Account; and
(2) Years of Service earned after the break will be
ignored for purposes of determining the vested
portion of his pre-break, Employer-derived Account.
"Break Period" means a period of five consecutive Plan Years in each
of which the Participant fails to earn more than 500 Hours of Service.
(c) For purposes of determining when a Break Period begins, Hours
of Service shall include hours a Participant would have earned
if he had not been absent on account of a maternity or
paternity leave described in Article I(72). The Hours of
Service shall be credited to the Plan Year in which the leave
begins, if the Break Period would begin in that Plan Year.
Otherwise, the Hours of Service shall be credited to the
following Plan Year.
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APPENDIX F
FIRST REALTY PLAN
F.01 BACKGROUND:
Prior to January 1, 1996, some Plan Participants were covered by the
First Realty, Ltd. Select Savings Plan ("First Realty Plan"). The
accounts Participants had under the First Realty Plan have been
transferred to this Plan. This Appendix contains special rules that
apply to Participants who were participants in the First Realty Plan.
Section references are to this Plan.
F.02 ACCOUNTS:
Accounts from the First Realty Plan shall be administered as follows:
(a) A Participant's Elective Deferral Contribution Account under
the First Realty Plan shall be treated like Before-Tax
Contributions;
(b) A Participant's Matching Contribution Account under the First
Realty Plan shall be treated like Matching Contributions;
(c) A Participant's Discretionary Contribution Account under the
First Realty Plan shall be treated like Discretionary
Allocations; and
(d) A Participant's Voluntary Contribution Account under the First
Realty Plan shall be maintained as a separate subaccount under
this Plan. A Participant shall be fully vested in that
subaccount and may make withdrawals at any time. However, a
Participant shall not be permitted to repay amounts withdrawn
from that subaccount.
F.03 INVESTMENT SELECTIONS:
Accounts from the First Realty Plan may remain invested as before.
However, any change is restricted to Investment Funds available under
this Plan.
F.04 REPAYMENT OF DISTRIBUTIONS:
Notwithstanding Article VII(4), a Participant described in Section
F.05 who has forfeited a portion of his Employer-derived Account and
returns to the employ of an Employer (or Affiliated Company), shall
have his Employer-derived Account balance restored no later than:
(a) The date specified in Article VII(4); or
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(b) The close of the Break Period specified in Section F.06(b).
F.05 VESTING:
Notwithstanding Article VII(2)(d), a Participant previously covered
under the First Realty Plan shall vest in his Basic and Profit-Sharing
Accounts according to the following schedule:
<TABLE>
<CAPTION>
Years of Service Vested Percentage
---------------- -----------------
<S> <C>
Less than 2 0%
2 33.33%
3 66.67%
4 or more 100%
</TABLE>
If a Participant has a Termination of Employment before becoming fully
vested, the non-vested portion of his Account shall be forfeited at
the time described in Article VII(3)(b). Forfeitures shall be used to
reduce Employer contributions in the Plan Year in which they arise.
F.06 YEARS OF SERVICE:
Periods of employment which constitute Years of Service under the
First Realty Plan shall be credited under this Plan. However, there
shall be no duplicate Service for any single period of employment.
For purposes of Section F.06, the following rules shall apply,
notwithstanding anything in Article I or Article VII to the contrary:
(a) A Participant shall receive credit for a "Year of Service," if
he earns 1,000 Hours of Service during a Vesting Computation
Period. If the Participant fails to earn the requisite Hours
of Service, he shall receive no service credit for employment
during that Vesting Computation Period. "Vesting Computation
Period," for this purpose, means the one-year period from July
1 to June 30.
(b) If a Participant returns to the employ of the Employer after a
Break Period:
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(1) Years of Service earned prior to the break will be
ignored, unless the Participant was vested in some
portion of his Employer-derived Account; and
(2) Years of Service earned after the break will be
ignored for purposes of determining the vested
portion of his pre-break, Employer-derived Account.
"Break Period" means a period of five consecutive Vesting Computation
Periods in each of which the Participant fails to earn more than 500
Hours of Service.
(c) For purposes of determining when a Break Period begins, Hours
of Service shall include hours a Participant would have earned
if he had not been absent on account of a maternity or
paternity leave described in Article I(72). The Hours of
Service shall be credited to the Vesting Computation Period in
which the leave begins, if the Break Period would begin in
that Plan Year. Otherwise, the Hours of Service shall be
credited to the following Vesting Computation Period.
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APPENDIX G
EMPLOYEES OF FIRST EDINA MORTGAGE, L.L.C.
G.01 Any Participant who was an employee of First Edina Mortgage, L.L.C.
(now known as Edina Realty Mortgage) prior to November 1, 1996, shall
have his Years of Service determined pursuant to Section 7.3 of the
Edina Financial Services, Inc. and Subsidiaries Retirement Plan and
Trust in effect on November 1, 1996.
G.02 Compensation for any Participant who was an employee of First Edina
Mortgage, L.L.C. prior to November 1, 1996, shall include his
compensation in 1996 as defined in Section 2.1(10) of the Edina
Financial Services, Inc. and Subsidiaries Retirement Plan and Trust in
effect on November 1, 1996.
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APPENDIX H
EMPLOYEES OF AMERUS PROPERTIES
AND IOWA REALTY COMMERCIAL
H.01 BACKGROUND:
Certain employees of AmerUs Properties and Iowa Realty Commercial, an
AmerUs Company, who are Participants in the Plan shall become
employees (the "Transferring Employees") of Welsh Companies ("Welsh"),
and the account balances of the Transferring Employees shall be
distributed to the Transferring Employee in accordance with such
Employee's direction.
H.02 VESTING:
Notwithstanding anything contained to the contrary in Article VII(2),
each employee who's position is being eliminated from AmerUs
Properties and Iowa Realty Commercial, an AmerUs Company, as a result
of the Welsh acquisition, shall be fully vested in his Account balance
effective on the date of acquisition.
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APPENDIX I
EMPLOYEES OF EDINA REALTY HOME SERVICES
I.01 Notwithstanding anything contained to the contrary in Article I(100),
"Years of Service" for any Participant who was an employee of Edina
Financial Services, Inc. d/b/a Edina Realty Home Services on or after
November 1, 1996 shall include such Participant's Years of Service
credited under the Edina Financial Services, Inc. and Subsidiaries
Retirement Plan and Trust; provided that no period of Service shall be
taken into account more than once.
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APPENDIX J
HOME REAL ESTATE OF OMAHA PLAN
J.01 BACKGROUND:
Prior to January 1, 1998, certain Plan Participants were covered by
the HOME Real Estate Retirement Savings Plan (the "HOME Plan"). The
accounts Participants had under the HOME Plan have been transferred to
this Plan. This Appendix contains special rules that apply to
Participants who were participants in the HOME Plan.
J.02 SERVICE:
Years of service credited under the HOME Plan as of December 31, 1997,
shall be credited under this Plan.
J.03 ACCOUNTS:
Accounts transferred from the HOME Plan shall be administered under
this Plan as follows:
(a) A Participant's HOME Plan Elective Deferral Account shall be
treated in the same manner as Before-Tax Contributions;
(b) A Participant's HOME Plan Matching Account shall be treated in
the same manner as Matching Contributions;
(c) A Participant's HOME Plan Profit-Sharing Account shall be
treated in the same manner as Discretionary Allocations; and
(d) A Participant's HOME Plan Rollover Account shall be treated in
the same manner as Rollover Contributions.
J.04 CONTRIBUTIONS:
Notwithstanding anything contained in this Plan to the contrary, the
following rules shall apply with respect to any Participant who is an
Employee of HOME Real Estate Company (a "Home Participant").
(a) Home Participants shall not be eligible to receive Core
Nonelective Contributions pursuant to Article III(5) or
Interim Supplemental Contributions pursuant to Article III(6).
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(b) In lieu of the Matching Contribution specified in Article
III(4) of the Plan, HOME shall contribute on behalf of each of
the Home Participants a Matching Contribution equal to 50% of
such Participant's Before-Tax Contributions, to the extent the
Participant's Before-Tax Contributions do not exceed 6% of the
Participant's Compensation, determined separately with respect
to each payroll period. Such Matching Contributions shall be
made each pay period on behalf of each such Participant who
has made Before-Tax Contributions during the pay period.
J.05 ADDITIONAL FORMS OF BENEFIT:
A Participant may designate that his Account shall be payable in any
of the forms described in Article IX(3), or in one of the following:
single life annuities of five, ten, or fifteen years; survivorship
life annuities with installment refund and survivor percentages of 50,
66-2/3, or 100; fixed period annuities for any period of whole months
which is not less than 60 and does not exceed the life expectancy of
the Participant and his Beneficiary.
The annuity provided shall be selected as provided in Article
IX(4)(b).
Elections under this Section J.05 shall require spousal consent.
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APPENDIX K
EMPLOYEES OF AMERUS MORTGAGE, INC.
K.01 BACKGROUND:
Certain employees of AmerUs Mortgage, Inc. ("AmerUs Mortgage") and
Edina Realty Mortgage (also known as First Edina Mortgage L.L.C.) (the
"Companies") who are Participants in the Plan terminated employment
with the Companies as a result of the dissolution of the joint venture
formed between AmerUs Mortgage and Edina Financial Services, Inc (the
"Terminated Employees").
K.02 VESTING:
Notwithstanding anything contained to the contrary in paragraphs (b),
(c) and (d) of Section 7.02 of the Plan, each Terminated Employee's
Period of Service shall include such employee's severance period and
stay bonus period, if any.
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APPENDIX L
EMPLOYEES OF DELTA LIFE CORPORATION
L.01 BACKGROUND:
Prior to April 1, 1998, certain Plan Participants were covered by the
Delta 401(k) Plan (the "Delta Plan"). The accounts Participants had
under the Delta Plan have been transferred to this Plan. This
Appendix contains special rules that apply to participants who were
participants in the Delta Plan.
L.02 SERVICE:
Years of service credited under the Delta Plan as of April 1, 1998
shall be credited under this Plan.
L.03 ACCOUNTS:
Accounts transferred from the Delta Plan shall be administered under
this Plan as follows:
(a) A Participant's Delta Plan Elective Account shall be treated in
the same manner as a Pretax Account;
(b) A Participant's Delta Plan Matching Account, if any, shall be
treated in the same manner as a Matching Account;
(c) A Participant's Delta Plan Profit Sharing Account, if any, shall
be treated in the same manner as a Profit Sharing Account; and
(d) A Participant's Delta Plan Rollover Account, if any, shall be
treated in the same manner as a Rollover Account.
L.04 ADDITIONAL FORMS OF BENEFIT:
In addition to the forms of distribution described in Section 9.03, a
married Participant may designate that his Account shall be payable in
a joint and survivor annuity with survivor percentages of 75 or 100.
The annuity provider shall be selected by the Participant as provided
in Section 9.03.
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APPENDIX M
CERTAIN EMPLOYEES OF THE AMERUS GROUP
TAX COMPLIANCE DEPARTMENT
M.01 BACKGROUND:
Certain employees of the AmerUs Group Tax Compliance department, who
are Participants in the Plan, shall become Terminated Employees due to
the AmerUs Group's partnership with Ernst & Young ("E&Y"). The
account balances of the Terminated Employees shall be distributed to
the Terminated Employee in accordance with such Employee's direction.
M.02 VESTING:
Notwithstanding anything contained to the contrary in Article VII(2),
each employee who's position is being eliminated from the AmerUs Group
Tax Compliance department as a result of the E&Y partnership, shall be
fully vested in his Account balance effective on the Terminating
Employee's termination date with the AmerUs Group.
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