<PAGE> 1
File No.333___________
As filed with the Securities and Exchange Commission on December 23, 1996.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
-----------------------------------------
CHEMFIRST INC.
(Exact name of issuer as specified in its charter)
MISSISSIPPI 64-0679456
(State of Incorporation) (I.R.S. Employer ID Number)
700 NORTH STREET
JACKSON, MISSISSIPPI 39202
(Address of Principal Executive Offices) (Zip Code)
CHEMFIRST INC.
401(K) SAVINGS PLAN
(Full Title of the Plan)
JAMES L. MCARTHUR, SECRETARY
CHEMFIRST INC.
P. O. BOX 1249
JACKSON, MISSISSIPPI 39215-1249
(601) 948-7550
(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------
Title of Amount Proposed Proposed Maxi- Amount of
Securities to to be Maximum Offering mum Aggregate Registration
be Registered Registered(1) Price Per Share(2) Offering Price Fee
======================================================================================
<S> <C> <C> <C> <C>
Common Stock 1,000,000 $21.82 $21,817,700 $6,611.42
par value $1.00
</TABLE>
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to
be offered and sold pursuant to the Plan.
(2) Estimated solely for calculation of the registration fee pursuant to Rule
457 under the Securities Act of 1933. The Company's stock is not currently
publicly traded, therefore, the proposed maximum offering price per share
has been calculated based on the following formula. Pursuant to the
Company's S-1 Registration Statement (file number 333-15789), shares of
the Company's stock are being distributed to shareholders of First
Mississippi Corporation. Immediately thereafter, First Mississippi
Corporation shares of Common Stock will be converted into shares of
Mississippi Chemical Corporation pursuant to a merger described in such
S-1 Registration Statement. The registration fee is based on the December
18, 1996 closing price of First Mississippi Corporation Common Stock,
reduced by the fractional share value of Mississippi Chemical Corporation
Common Stock based on its December 18, 1996 closing price.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference
The following documents filed with the Commission by ChemFirst Inc.
(the "Company") are incorporated herein by reference: (1) the
Company's Registration Statement on Form S-1, dated November 18, 1996
(the "S-1 Registration Statement"); (2) the description of the
Company's Common Stock contained in the Company's Registration
Statement on Form 8-A filed on December 9, 1996 (which is incorporated
by reference to the S-1 Registration Statement); and (3) the Annual
Report on Form 11-K for the ChemFirst Inc. 401(k) Savings Plan ("the
Plan") for the plan year ended June 30, 1995. All documents filed
hereafter by the Company or the Plan pursuant to Section 13, 14 or
15(d) of the Securities Exchange Act of 1934 prior to the termination
of the offering hereunder shall be deemed to be incorporated by
reference into this Prospectus and to be a part hereof from the date
of filing of such documents.
ITEM 4. Description of Securities
Not applicable.
ITEM 5. Interests of Named Experts and Counsel
The consolidated financial statements and financial statement
schedules of the Company and subsidiaries as of June 30, 1996 and
1995, as well as the Annual Report on Form 11-K for the Plan as of
June 30, 1995, and 1994, and for each of the years in the three-year
period ended June 30, 1996, which are incorporated herein by
reference, have been incorporated herein in reliance upon the reports,
also incorporated herein by reference, of KPMG Peat Marwick LLP,
independent certified public accountants, and upon the authority of
said firm as experts in accounting and auditing. To the extent that
KPMG Peat Marwick LLP audits and reports on financial statements of
the Company and subsidiaries and the Plan issued at future dates, and
consents to the use of their reports thereon, such financial
statements also will be incorporated herein by reference in reliance
upon their reports and said authority.
ITEM 6. Indemnification of Directors and Officers
Subarticle E of Article 8 of the Mississippi Business Corporation Act
("MBCA") empowers a Mississippi corporation to indemnify against
liability an individual who is made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, formal or informal (a "Proceeding"),
-2-
<PAGE> 3
because such person is or was a director. To be eligible for
indemnification, the director must have conducted himself in good
faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the corporation and, with respect to
any criminal action or proceeding, had no reasonable cause to believe
such person's conduct was unlawful. Liability indemnified against
includes the obligation to pay a judgment, settlement, penalty, fine
or reasonable expenses incurred with respect to a Proceeding. The MBCA
precludes a corporation from indemnifying a director in connection
with a Proceeding by or in the right of the corporation in which the
director was adjudged liable to the corporation or in connection with
any other Proceeding charging improper personal benefit to a director,
whether or not involving action in the director's official capacity,
in which the director was adjudged liable on the basis that personal
benefit was improperly received by the director.
Subarticle E further provides that if a director is wholly successful,
on the merits or otherwise, in the defense of any Proceeding to which
he was a party because he is or was a director, the corporation must
indemnify him against reasonable expenses incurred in connection with
the Proceeding. Also, a court may order a company to indemnify a
director if it determines the director is fairly and reasonably
entitled to indemnification in view of all of the relevant
circumstances. Subarticle E also allows corporations to indemnify
officers, employees or agents to the same extent as directors, and
provides for mandatory or court-ordered indemnification for these
persons as described above. Finally, the MBCA allows corporations to
purchase and maintain insurance on behalf of directors, officers,
employees or agents against liability asserted against or incurred by
him in that capacity or arising from his status as such, whether or
not the corporation would have the power to indemnify such person
against liability under Subarticle E.
The Company's Bylaws provide for indemnification of Company's officers
and directors to the fullest extent allowed by Mississippi law and
further permit such indemnification with respect to other employees
and agents. The Company entered into indemnification agreements with
certain of its officers and its directors. The effect of these
agreements is to add to the indemnification rights otherwise granted a
contractual right to such indemnification.
The Company will have directors' and officers' liability insurance
which protects each director or officer from certain claims and suits,
including shareholder derivative suits, even where the director may be
determined to not be entitled to indemnification under the MBCA and
claims and suits arising under the Securities Act. The policy may also
afford coverage under circumstances where the facts do not justify a
finding that the director or officer acted in good faith and in a
manner that was in or not opposed to the best interests of the
Company.
The foregoing represents a summary of the general effect of the MBCA,
the Company's Articles of Incorporation and Bylaws and directors' and
officers' liability insurance coverage for purposes of general
description only.
-3-
<PAGE> 4
ITEM 7. Exemption from Registration Claimed
Not applicable.
ITEM 8. Exhibits
In lieu of certain exhibit requirements, the Company will submit or
has submitted the Plan and any amendment thereto to the Internal
Revenue Service ("IRS") in a timely manner and has made or will make
all changes required by the IRS in order to qualify the Plan.
4.1 Amended and Restated Articles of Incorporation of the Company
are incorporated by reference to Exhibit 3.1 of the Company's
S-1 Registration Statement (file number 333-15789).
4.2 Bylaws of the Company are incorporated by reference to
Exhibit 3.2 of the Company's S-1 Registration Statement (file
number 333-15789).
4.3 Rights Agreement dated as of October 30, 1996, by and between
the Company and KeyCorp Shareholder Services, Inc. is
incorporated by reference to Exhibit 4 of the Company's S-1
Registration Statement (file number 333-15789).
4.4 The Company's 401(k) Savings Plan.
5.3 Determination letter dated April 24, 1996 from the IRS
regarding the Company's 401(k) Savings Plan.
23.1 Consent of KPMG Peat Marwick LLP.
ITEM 9. Undertakings
(a) The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing,
-4-
<PAGE> 5
any increase or decrease in volume of securities
offered (if the total dollar value of securities
offered would not exceed that which was registered)
and any deviation from the low or high end of the
estimated maximum offering range may be reflected in
the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a
20 percent change in the maximum aggregate offering
price set forth in the "Calculation of Registration
Fee" table in the effective registration statement.
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the registration statement or any material change to
such information in the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Company hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the Company's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing
provisions, or otherwise, the Company has been advised that in the
opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the Company of expenses incurred or paid by a director, officer or
controlling person of the Company in the successful defense of any
action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being
registered, the
-5-
<PAGE> 6
Company will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
-6-
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Company certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Jackson, State of Mississippi, on December 23,
1996.
CHEMFIRST INC.
BY: /s/ J. Kelley Williams
-----------------------------
J. Kelley Williams, President
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 indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ J. Kelley Williams Chairman of the Board December 23, 1996
- -------------------------- of Directors, Chief Executive
J. Kelley Williams Officer (Principal Executive
Officer)
/s/ Thomas G. Tepas President and December 23, 1996
- -------------------------- Chief Operating Officer
Thomas G. Tepas
/s/ R. Michael Summerford Vice President and Chief December 23, 1996
- --------------------------
R. Michael Summerford Financial Officer
(Principal Financial Officer)
/s/ Troy B. Browning Controller December 23, 1996
- -------------------------- (Principal Accounting Officer)
Troy B. Browning
/s/ Richard P. Anderson Director December 23, 1996
- --------------------------
Richard P. Anderson
/s/ Paul A. Becker Director December 23, 1996
- --------------------------
Paul A. Becker
/s/ James W. Crook Director December 23, 1996
- --------------------------
James W. Crook
/s/ Michael J. Ferris Director December 23, 1996
- --------------------------
Michael J. Ferris
</TABLE>
-7-
<PAGE> 8
<TABLE>
<S> <C> <C>
/s/ James E. Fligg Director December 23, 1996
- --------------------------
James E. Fligg
/s/ Robert P. Guyton Director December 23, 1996
- --------------------------
Robert P. Guyton
/s/ Charles P. Moreton Director December 23, 1996
- --------------------------
Charles P. Moreton
/s/ Paul W. Murrill Director December 23, 1996
- --------------------------
Paul W. Murrill
/s/ William A. Percy, II Director December 23, 1996
- --------------------------
William A. Percy, II
/s/ Dan F. Smith Director December 23, 1996
- --------------------------
Dan F. Smith
/s/ Leland R. Speed Director December 23, 1996
- --------------------------
Leland R. Speed
/s/ R. Gerald Turner Director December 23, 1996
- --------------------------
R. Gerald Turner
</TABLE>
<PAGE> 9
Index to Exhibits
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
4.1 Amended and Restated Articles of Incorporation of the Company are
incorporated by reference to Exhibit 3.1 of the Company's S-1
Registration Statement (file number 333-15789).
4.2 Bylaws of the Company are incorporated by reference to Exhibit 3.2 of
the Company's S-1 Registration Statement (file number 333-15789).
4.3 Rights Agreement dated as of October 30, 1996, by and between the
Company and KeyCorp Shareholder Services, Inc. is incorporated by
reference to Exhibit 4 of the Company's S-1 Registration Statement
(file number 333-15789).
4.4 The Company's 401(k) Savings Plan.
5.3 Determination letter dated April 24, 1986 from the IRS regarding the
Company's 401-K Savings Plan.
23.1 Consent of KPMG Peat Marwick LLP.
</TABLE>
<PAGE> 1
EXHIBIT 4.4
FIRST MISSISSIPPI CORPORATION
401(K) SAVINGS PLAN
as amended and restated
effective August 1, 1996
<PAGE> 2
PREAMBLE
The purpose of this Plan and Trust is to provide, in accordance with its
provisions, a defined contribution plan providing retirement and other related
benefits for those Employees of the Employer who are eligible to participate
hereunder. This document is a complete amendment and restatement of the First
Mississippi Corporation 401(k) Savings Plan, which was originally effective as
of July 1, 1974.
It is intended that the Plan qualify for approval under Sections 401 and 410
through 417 of the Internal Revenue Code. It is intended that the Trust qualify
for approval under Section 501 of the Code. It is further intended that the
Plan comply with the provisions of the Employee Retirement Income Security Act
of 1974 (ERISA). In case of any ambiguity in the Plan's language, it will be
interpreted to accomplish the Plan's intent of qualifying under the Code and
complying with ERISA.
This Plan and Trust is exclusively for the benefit of the eligible Employees
and their Beneficiaries. Neither the Employer, the Plan Administrator nor the
Trustee will apply or interpret the terms of the Plan in any manner that
permits discrimination in favor of Highly Compensated Employees. All Employees
under similar circumstances will be treated alike.
The undersigned Employer and Trustee hereby adopt this restatement of the First
Mississippi Corporation 401(k) Savings Plan to be effective as of August 1,
1996.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE NO.
--------
<S> <C>
ARTICLE 1 - DEFINITIONS 1-1
ARTICLE 2 - PARTICIPATION 2-1
ARTICLE 3 - PARTICIPANT ACCOUNTS 3-1
ARTICLE 4 - ACCOUNTING AND VALUATION 4-1
ARTICLE 5 - RETIREMENT BENEFITS 5-1
ARTICLE 6 - DEATH BENEFIT 6-1
ARTICLE 7 - LIMITATIONS ON BENEFITS 7-1
ARTICLE 8 - MISCELLANEOUS 8-1
ARTICLE 9 - ADMINISTRATION 9-1
ARTICLE 10 - AMENDMENT OR TERMINATION OF PLAN 10-1
ARTICLE 11 - TRUSTEE AND TRUST FUND 11-1
</TABLE>
<PAGE> 4
ARTICLE 1
DEFINITIONS
As used in this document, unless otherwise defined or required by the context,
the following terms have the meanings set forth in this Article 1. Some of the
terms used in this document are not defined in Article 1, but for convenience
are defined as they are introduced in the text.
1.01 Account
Account means a separate account maintained for each Participant
reflecting applicable contributions, applicable forfeitures, investment
income (loss) allocated to the account and distributions.
1.02 Accounting Date, Valuation Date
The term Accounting Date means the last day of each Accounting Period and
any other days within the Accounting Period upon which, consistent with
established methods and guidelines, the Plan Administrator applies the
accounting procedures specified in Section 4.02. The term Valuation Date,
unless otherwise specified, means any business day on which the New York
Stock Exchange is open.
1.03 Accounting Period
Accounting Period means each of the 3-month periods which end on March
31st, June 30th, September 30th and December 31st.
1.04 Accrued Benefit
A Participant's Accrued Benefit means the total value, as of a given date,
of his Accounts determined as of the Valuation Date immediately preceding
the date of determination. A Participant's Accrued Benefit will not be
reduced solely on account of any increase in the Participant's age or
service or on account of an amendment to the Plan.
A Participant's Vested Accrued Benefit is equal to his Vested Percentage
of that portion of his Accrued Benefit which is subject to the Vesting
Schedule plus 100% of the remaining portion of his Accrued Benefit.
1.05 Beneficiary
Beneficiary means the person, persons, trust or other entity who is
designated to receive any amount payable upon the death of a Participant.
1.06 Cash-Out Distribution
Cash-Out Distribution means, as described in Article 5, a distribution to
a Participant upon termination of employment of his Vested Accrued
Benefit.
1.07 Code and ERISA
Code means the Internal Revenue Code of 1986, as it may be amended from
time to time, and all regulations issued thereunder. Reference to a
section of the Code includes that section and any comparable section or
sections of any future legislation that amends, supplements or supersedes
such section and any regulations issued thereunder.
ERISA means Public Law No. 93-406, the Employee Retirement Income Security
Act of 1974, as it may be amended from time to time, and all regulations
issued thereunder. Reference to a section of ERISA includes that section
and any comparable section or sections of any future legislation that
amends, supplements or supersedes such section and any regulations issued
thereunder.
1-1
<PAGE> 5
1.08 Compensation
Except where otherwise specifically provided in this Plan, Compensation
means Aggregate Compensation as defined in Section 7.03(a), excluding
payments for overtime work in excess of the regularly scheduled work
period, expense or other allowances, bonuses, and shift differential pay .
Compensation also includes any amounts contributed by the Employer or any
Related Employer on behalf of any Employee pursuant to a salary reduction
agreement which are not includable in the gross income of the Employee due
to Code Section 125, 402(e)(3), 402(h) or 403(b).
Notwithstanding the foregoing, for all purposes under this Plan,
Compensation in excess of the Statutory Compensation Limit will be
disregarded. For purposes of applying this compensation limit, a Family
Member of a Highly Compensated Employee is subject to the single aggregate
compensation limit imposed on the Highly Compensated Employee if the
Family Member is either the Employee's spouse or is a lineal descendant
who has not attained the age of 19 by the end of the Plan Year.
Statutory Compensation Limit means $150,000 ($200,000 for Plan Years
beginning before 1994), as adjusted in accordance with Code Section
401(a)(17)(B).
1.09 Effective Date The Effective Date of the Plan is July 1, 1974.
Except as specified elsewhere in this document, the effective date of this
restatement of the Plan is August 1, 1996.
Sections 1.12, 1.18, 1.32, 1.33, 1.36, and Article 7 are effective January
1, 1987.
Section 4.05 is effective January 1, 1987.
1.10 Eligible Employee Classification
An Eligible Employee Classification is a classification of Employees, the
members of which are eligible to participate in the Plan. The Plan covers
all employee classifications except Leased Employees, Temporary Employees
and any employee covered by a collective bargaining agreement, except as
otherwise provided in any applicable collective bargaining agreement.
Temporary Employee is a classification established by the employer to
designate Employees who are expected to work less than 1,000 hours during
an eligibility Computation Period.
1.11 Eligible Participant
All Participants are Eligible Participants.
1.12 Employee
(a) In General
An Employee is any person who is employed by the Employer or a
Participating Employer.
(b) Leased Employee
A Leased Employee means any person who, pursuant to an agreement
between the Employer or any Related Employer ("Recipient Employer")
and any other person ("leasing organization"), has performed services
for the Recipient Employer on a substantially full-time basis for a
period of at least one year and such services are of a type
historically performed by employees in the business field of the
Recipient Employer.
Any Leased Employee will be treated as an Employee of the Recipient
Employer; however,
1-2
<PAGE> 6
contributions or benefits provided by the leasing organization which
are attributable to the services performed for the Recipient Employer
will be treated as provided by the Recipient Employer. If all Leased
Employees constitute less than 20% of the Employer's
non-highly-compensated work force within the meaning of Code Section
414(n)(1)(C)(ii), then the preceding sentence will not apply to any
Leased Employee if such Employee is covered by a money purchase
pension plan ("Safe Harbor Plan") which provides: (1) a nonintegrated
employer contribution rate of at least 10% of compensation, (2)
immediate participation, and (3) full and immediate vesting.
Years of Eligibility Service for purposes of eligibility to
participate in the Plan and Years of Vesting Service for purposes of
determining a Participant's Vested Percentage include service by an
Employee as a Leased Employee.
1.13 Employer
The Employer and Plan Sponsor is First Mississippi Corporation. A
Participating Employer is any organization which has adopted this Plan and
Trust in accordance with Section 8.07.
The term Predecessor Employer means any prior employer to which the
Employer is the successor, including any Predecessor Employer for which
the Employer maintains the obligations of a Predecessor Plan established
by the Predecessor Employer. Service with a Predecessor Employer will be
included as Service with the Employer for purposes of determining
Eligibility under this Plan, unless it is determined that the Company
and/or business organization is not a Portability Group Member.
Service with a Predecessor Employer for purposes of determining Years of
Vesting Service shall be determined as a part of the merger, acquisition,
and/or adoption agreement.
1.14 Employment Commencement Date
The date an Employee first performs an Hour of Service for the Employer is
his Employment Commencement Date.
1.15 Entry Date
Entry Date means the first day of the month which coincides with or next
follows the date upon which the eligibility requirements are met.
1.16 Fiscal Year
Fiscal Year means the taxable year of the Plan Sponsor. The Fiscal Year of
the Plan Sponsor is the 12 month period beginning January 1 and ending
December 31.
1.17 Forfeiture
The term Forfeiture refers to that portion, if any, of a Participant's
Accrued Benefit which is in excess of his Vested Accrued Benefit following
the termination of the Participant's employment.
A Forfeiture is considered to occur as of the earlier of (a) the date of
the occurrence of the fifth of 5 consecutive One Year Breaks-in-Service or
(b) the date a Cash-Out Distribution occurs in accordance with the
provisions of Article 5.
1.18 Highly Compensated Definitions
(a) Compensation
For purposes of this Section, Compensation means Aggregate
Compensation as defined in Section 7.03(a) plus amounts contributed
by the Employer pursuant to a salary reduction agreement which are
excludable from the gross income of the Employee under Code Section
1-3
<PAGE> 7
125, 402(e)(3), 402(h) or 403(b). Compensation in excess of the
Statutory Compensation Limit will be disregarded.
(b) Determination Year
Determination Year means the Plan Year for which the determination of
who is Highly Compensated is being made.
(c) Family Member
Family Member means an Employee who is the spouse, a lineal ascendant
or descendant, or the spouse of a lineal ascendant or descendant of:
o a 5-percent owner (within the meaning of Code Section
416(i)) of the Employer or any Related Employer who is an
active or former Employee; or
o a Highly Compensated Employee who is one of the 10 most
highly compensated employees ranked on the basis of
Compensation paid by the Employer during the Determination
Year or the Lookback Year.
For purposes of this Section, the Family Member and the Highly
Compensated Employee will be considered one Employee. A Family
Member's Compensation and benefits will be aggregated with those of
the Highly Compensated Employee irrespective of whether the Family
Member would otherwise be treated as a Highly-Compensated Employee or
is in a category of Employees which may be excluded in determining
the number of Employees in the Top-Paid Group.
If an Employee is required to be aggregated as a member of more than
one family group, all eligible employees who are members of those
family groups which include that employee will be aggregated as one
family group.
For purposes of applying the compensation limit under Code Section
401(a)(17), a Family Member is subject to the single aggregate
compensation limit imposed on the Highly Compensated Employee if the
Family Member is either the Employee's spouse or is a lineal
descendant who has not attained the age of 19 by the end of the Plan
Year.
(d) Highly Compensated Employee
Highly Compensated Employee means any individual who is a Highly
Compensated Active Employee or a Highly Compensated Former Employee
within the meaning of Code Section 414(q) and the regulations
thereunder.
(e) Highly Compensated Active Employee
Highly Compensated Active Employee means any individual who during
the Determination Year or the Lookback Year:
(1) Was at any time a 5-percent Owner (within the meaning of Code
Section 416(i)) of the Employer or any Related Employer;
(2) Received Compensation from the Employer and all Related
Employers in excess of $75,000 (or any greater amount determined
by regulations issued by the Secretary of the Treasury under
Code Section 415(d));
(3) Received Compensation from the Employer and all Related
Employers in excess of $50,000 (or any greater amount determined
by regulations issued by the Secretary of the Treasury under
Code Section 415(d)) and was in the Top-Paid Group of Employees;
or
1-4
<PAGE> 8
(4) Was an Officer of the Employer or any Related Employer (as that
term is defined in the regulations under Code Section 416(i))
and received Compensation greater than 50% of the Defined
Benefit Dollar Limit described in Section 7.03(f) for the
applicable year. For this purpose, if no Officer received enough
Compensation to be a Highly Compensated Employee under the
preceding sentence, the highest-paid Officer will be treated as
a Highly Compensated Employee. The maximum number of Officers
who will be treated as Highly Compensated Active Employees under
this paragraph is equal to 10% of all Employees determined
without regard to statutory or other exclusions, subject to a
minimum of 3 Employees and a maximum of 50 Employees.
No individual described in subparagraphs (2), (3) or (4) above will
be treated as a Highly Compensated Active Employee for the
Determination Year unless he (i) was a Highly Compensated Active
Employee for the Lookback Year (or would have been except that he was
not among the 100 most highly compensated Employees of the Employer
and all Related Employers for the Lookback Year) or (ii) was among
the 100 most highly compensated Employees of the Employer and all
Related Employers for the Determination Year.
(f) Highly Compensated Former Employee
Highly Compensated Former Employee means any Former Employee who had
a Separation Year (within the meaning of Treasury Regulation Section
1.414(q)-1T Q&A-5) and was a Highly Compensated Active Employee for
either the Separation Year or any Determination Year ending on or
after the Employee's 55th birthday.
(g) Highly Compensated Group
Highly Compensated Group means all Highly Compensated Employees.
(h) Lookback Year
Lookback Year means the 12-month period immediately preceding the
Determination Year.
(i) Non-Highly Compensated Employee
Non-Highly Compensated Employee means an Employee who is neither a
Highly Compensated Employee nor a Family Member.
(j) Non-Highly Compensated Group
Non-Highly Compensated Group means all Non-Highly Compensated
Employees.
(k) Top-Paid Group
Top-Paid Group means those individuals who are among the top 20
percent of Employees of the Employer and all Related Employers when
ranked on the basis of Compensation received during the year. In
determining the number of individuals in the Top-Paid Group (but not
the identity of those individuals), the following individuals may be
excluded:
(1) Employees who have not completed 6 months of Service by the end
of the year. For this purpose, an Employee who has completed One
Hour of Service in any calendar month will be credited with one
month of Service;
(2) Employees who normally work fewer than 17 1/2 hours per week;
(3) Employees who normally work fewer than 6 months during any year.
For this purpose, an Employee who has worked on one day of a
month is treated as having worked for the whole month;
(4) Employees who have not reached age 21 by the end of the year;
1-5
<PAGE> 9
(5) Nonresident aliens who received no earned income (which
constitutes income from sources within the United States) within
the year from the Employer or any Related Employer; and
(6) Employees covered by a collective bargaining agreement
negotiated in good faith between the employee representatives
and the Employer or a group of employers of which the Employer
is a member if (i) 90% or more of all employees of the Employer
and all Related Employers are covered by collective bargaining
agreements, and (ii) this Plan covers only Employees who are not
covered under a collective bargaining agreement.
1.19 Hour of Service
An Hour of Service means:
(a) Each hour for which an Employee is paid, or entitled to payment, for
the performance of duties for the Employer. These hours will be
credited to the Employee for the computation period in which the
duties are performed;
(b) Each hour for which an Employee is paid, or entitled to payment, by
the Employer on account of a period of time during which no duties
are performed (irrespective of whether the employment relationship
has terminated) due to vacation, holiday, illness, incapacity
(including disability), layoff, jury duty, military duty or leave of
absence. No more than 501 Hours of Service will be credited under
this paragraph for any 12-month period. Hours under this paragraph
will be calculated and credited pursuant to Section 2530.200b-2 of
the Department of Labor Regulations which are incorporated herein by
this reference; and
(c) Each hour for which back pay, irrespective of mitigation of damages,
is either awarded or agreed to by the Employer. The same Hours of
Service will not be credited both under paragraphs (a) or (b), as the
case may be, and under this paragraph (c). These hours will be
credited to the Employee for the computation period or periods to
which the award or agreement pertains rather than the computation
period in which the award, agreement or payment is made.
Hours of Service for all Employees will be determined on the basis of
actual hours for which an Employee is paid or is entitled to payment.
Hours of Service will be credited for employment with any Related Employer
or any Predecessor Employer. Hours of Service will be credited for any
individual considered an employee under Code Section 414(n) or 414(o) and
the regulations thereunder.
Solely for purposes of determining whether a One Year Break-in-Service has
occurred, a Participant who is absent from work on an authorized Leave of
Absence or by reason of the Participant's pregnancy, birth of the
Participant's child, placement of a child with the Participant in
connection with the adoption of such child, or for the purpose of caring
for such child for a period immediately following such birth or placement,
will receive credit for the Hours of Service which otherwise would have
been credited to the Participant but for such absence. The Hours of
Service credited under this paragraph will be credited in the Plan Year in
which the absence begins if such crediting is necessary to prevent a One
Year Break-in-Service in such Plan Year; otherwise, such Hours of Service
will be credited in the following Plan Year. The Hours of Service credited
under this paragraph are those which would normally have been credited but
for such absence; in any case in which the Plan Administrator is unable to
determine such hours normally credited, 8 Hours of Service per day will be
credited. No more than 501 Hours of Service will be credited under this
paragraph for any 12-month period. The Date of Severance is the second
anniversary of the date on which the absence begins. The period between
the initial date of absence and the first anniversary of
1-6
<PAGE> 10
the initial date of absence is deemed to be a period of Service. The
period between the first and second anniversaries of the initial date of
absence is neither a period of service nor a period of severance.
1.20 Investment Fund
An Investment Fund means any portion of the assets of the Trust Fund which
the Plan Administrator designates as an Investment Fund and for which the
Plan Administrator maintains a set of accounts separate from the remaining
assets of the Trust Fund.
(a) Specific Investment Fund means an Investment Fund which is designated
as a Specific Investment Fund by the Plan Administrator in a manner
and form acceptable to the Trustee.
(b) General Investment Fund means all assets of the Trust Fund excluding
the assets of any Specific Investment Funds.
1.21 Leave of Absence
An authorized Leave of Absence means a period of time of one year or less
granted to an Employee by the Employer due to illness, injury, temporary
reduction in work force, or other appropriate cause or due to military
service during which the Employee's reemployment rights are protected by
law, provided the Employee returns to the service of the Employer on or
before the expiration of such leave, or in the case of military service,
within the time his reemployment rights are so protected or within 60 days
of his discharge from military service if no federal law is applicable.
All authorized Leaves of Absence are granted or denied by the Employer in
a uniform and nondiscriminatory manner, treating Employees in similar
circumstances in a like manner.
If the Participant does not return to active service with the Employer on
or prior to the expiration of his authorized Leave of Absence he will be
considered to have had a Date of Severance as of the earlier of the date
on which his authorized Leave of Absence expired, the first anniversary of
the last date he worked at least one hour as an Active Participant, or the
date on which he resigned or was discharged.
1.22 Reserved
1.23 Normal Retirement Age
A Participant's Normal Retirement Age is age 65.
1.24 Normal Retirement Date
A Participant's Normal Retirement Date is the date on which the
Participant attains Normal Retirement Age.
1.25 One Year Break-in-Service
One Year Break-in-Service means any 365-day period following a
Participant's Date of Termination in which an Employee does not complete
at least one Hour of Service.
1.26 Participant
The term Participant means an Employee or former Employee who is eligible
to participate in this Plan and who is or who may become eligible to
receive a benefit of any type from this Plan or whose Beneficiary may be
eligible to receive any such benefit.
(a) Active Participant means a Participant who is currently an Employee
in an Eligible Employee Classification.
(b) Disabled Participant means a Participant who has terminated his
employment with the
1-7
<PAGE> 11
Employer due to his Disability and who is receiving or is entitled to
receive benefits from the Plan.
(c) Retired Participant means a Participant who has terminated his
employment with the Employer after meeting the requirements for his
Normal Retirement Date and who is receiving or is entitled to receive
benefits from the Plan.
(d) Vested Terminated Participant means a Participant who has terminated
his employment with the Employer and who has a nonforfeitable right
to all or a portion of his or her Accrued Benefit and who has not
received a distribution of the value of his or her Vested Accrued
Benefit.
(e) Inactive Participant means a Participant who has (i) interrupted his
status as an Active Participant without becoming a Disabled, Retired
or Vested Terminated Participant and (ii) has a non-forfeitable right
to all or a portion of his Accrued Benefit and has not received a
complete distribution of his benefit.
(f) Former Participant means a Participant who has terminated his
employment with the Employer and who currently has no nonforfeitable
right to any portion of his or her Accrued Benefit.
1.27 Payroll Withholding Agreement
If a written Payroll Withholding Agreement is required pursuant to the
provisions of Article 3, then each Participant who elects to participate
in the Plan will file such agreement on or before the first day of the
payroll period for which the agreement is applicable (or at some other
time as specified by the Plan Administrator). Such agreement will be
effective for each payroll period thereafter until modified or amended.
The terms of such agreement will provide that the Participant agrees to
have the Employer withhold, each payroll period, any whole percentage of
his Compensation (or such other amount as allowed by the Plan
Administrator under rules applied on a uniform and nondiscriminatory
basis), not to exceed the limitations of Article 7. In consideration of
such agreement, the Employer periodically will make a contribution to the
Participant's proper Account(s) in an amount equal to the total amount by
which the Participant's Compensation from the Employer was reduced during
applicable payroll periods pursuant to the Payroll Withholding Agreement.
Notwithstanding the above, Payroll Withholding Agreements will be governed
by the following general guidelines:
(a) A Payroll Withholding Agreement will apply to each payroll period
during which an effective agreement is on file with the Employer.
Upon termination of employment, such agreement will become void.
(b) The Plan Administrator will establish and apply guidelines concerning
the frequency and timing of amendments or changes to Payroll
Withholding Agreements. Notwithstanding the foregoing, a Participant
may revoke his Payroll Withholding Agreement at any time and
discontinue all future withholding.
(c) The Plan Administrator may amend or revoke its Payroll Withholding
Agreement with any Participant at any time, if the Employer
determines that such revocation or amendment is necessary to insure
that a Participant's Annual Additions for any Plan Year will not
exceed the limitations of Article 7 or to insure that the
requirements of Sections 401(k) and 401(m) of the Code have been
satisfied with respect to the amount which may be withheld and
contributed on behalf of the Highly Compensated Group.
1-8
<PAGE> 12
(d) Except as provided above, a Payroll Withholding Agreement may not be
revoked or amended by the Participant or the Employer.
1.28 Plan, Plan and Trust, Trust
The terms Plan, Plan and Trust and Trust mean First Mississippi
Corporation 401(k) Savings Plan. The Plan Identification Number is 002.
The Plan is a profit sharing plan.
The term Predecessor Plan means any qualified plan previously established
and maintained by the Employer and to which this Plan is the successor.
1.29 Plan Administrator
The Plan Administrator is the Employee Benefit Committee.
1.30 Plan Year
The Plan Year is the 12 month period beginning January 1 and ending
December 31.
Prior to July 1, 1996, Plan Year means the 12 month period beginning July
1 and ending June 30. The period beginning July 1, 1996 and ending
December 31, 1996 is a short Plan Year.
The Limitation Year coincides with the Plan Year.
1.31 Portability Group Member
A Portability Group Member shall mean the Company and any business
organization with which the Company has agreed to recognize the
portability of either service or benefits, or both, with respect to
employees whose employment is transferred between such Portability Group
Members.
1.32 Qualified Annuity Definitions
(a) Annuity Starting Date
Annuity Starting Date means (i) the first day of the first period for
which an amount is payable as an annuity, or (ii) in the case of a
benefit not payable in the form of an annuity, the first day on which
all events have occurred which entitled the Participant to such
benefit.
(b) Qualified Election
(1) In General
Qualified Election means a written waiver of a Qualified Joint
and Survivor Annuity or a Qualified Survivor Annuity. The waiver
must be consented to by the Participant's spouse with such
written consent witnessed by a representative of the Plan
Administrator or a notary public. The spouse's consent must
include the designation of a specific Beneficiary and the form
of payment which cannot be changed without the consent of the
spouse. Such consent will not be required if the Participant
establishes to the satisfaction of the Plan Administrator that
such written consent may not be obtained because there is no
spouse, the spouse cannot be located or other circumstances that
may be prescribed by Treasury Regulations. Any consent which is
required under this Section will be valid only with respect to
the spouse who signs the consent (or in the event of a deemed
Qualified Election, the designated spouse). Additionally, any
revocation of a prior waiver may be made by a Participant
without the consent of the spouse at any time before the Annuity
Starting Date; however, any waiver of a Qualified Joint and
Survivor Annuity or a Qualified Survivor Annuity which follows
such revocation must be in writing and must be consented to by
the
1-9
<PAGE> 13
Participant's spouse. The number of waivers or revocations of
such waivers will not be limited.
(2) Qualified Joint and Survivor Annuity Notices
Not more than 90 days nor less than 30 days before the
Participant's Annuity Starting Date, the Plan Administrator will
provide the Participant a written explanation of:
o the terms and conditions of a Qualified Joint and
Survivor Annuity;
o the Participant's right to make and the effect of a
Qualified Election to waive the Qualified Joint and
Survivor Annuity form of benefit;
o a general description of the eligibility conditions
and other material features of the optional forms of
benefit and sufficient additional information to
explain the relative values of the optional forms of
benefit available;
o the rights of the Participant's spouse; and
o the right to make, and the effect of, a revocation of
a previous Qualified Election to waive the Qualified
Joint and Survivor Annuity.
(3) Qualified Survivor Annuity Notices
The election period to waive the Qualified Survivor Annuity
begins on the first day of the Plan Year in which the
Participant attains age 35 and ends on the date of the
Participant's death. If a Vested Terminated Participant
separates from service before the beginning of the election
period, the election period begins on the date of separation
from service.
The Plan Administrator will, within the applicable notice
period, provide each Participant a written explanation of the
Qualified Survivor Annuity containing comparable information to
that required under the provisions of Section 1.32(b)(2). For
purposes of this paragraph, the term "applicable notice period"
means whichever of the following periods ends last:
o the period beginning with the first day of the Plan
Year in which the Participant attains age 32 and
ending with the close of the Plan Year preceding the
Plan Year in which the Participant attains age 35;
o the period beginning two years before and ending 12
months after the individual becomes a Participant;
o the period beginning two years before and ending 12
months after the joint and survivor rules become
effective for the Participant; or
o the period beginning one year before and ending 12
months after the Participant separates from service
before attaining age 35.
A Participant who will not have attained age 35 as of the end of
any current Plan Year may make a special Qualified Election to
waive the Qualified Survivor Annuity for the period beginning on
the date of the election and ending on the first day of the Plan
Year in which the Participant attains age 35. The Election will
not be valid unless the Participant receives a written
explanation of the Qualified Survivor Annuity in terms
comparable to the explanation required above. Qualified Survivor
Annuity coverage will automatically resume as of the first day
of the Plan Year in which the
1-10
<PAGE> 14
Participant attains age 35. Any new waiver on or after that date
will be subject to the full requirements of this Section
1.32(b).
(c) Qualified Joint and Survivor Annuity
A Qualified Joint and Survivor Annuity means an annuity which is
purchased from an Insurer and which is payable for the life of
the Participant with a survivor annuity for the life of his
Surviving Spouse in an amount which is 50% of the amount payable
during the joint lives of the Participant and his spouse. The
amount of the Qualified Joint and Survivor Annuity will be the
amount of benefit which can be purchased from an Insurer with
the Participant's Vested Accrued Benefit.
(d) Qualified Life Annuity
A Qualified Life Annuity means an annuity which is purchased
from an Insurer and which is payable for the lifetime of the
Participant with payments terminating upon the death of the
Participant. The amount of the Qualified Life Annuity will be
the amount of benefit which can be purchased from an Insurer
with the Participant's Vested Accrued Benefit.
(e) Qualified Survivor Annuity
A Qualified Survivor Annuity which a Surviving Spouse will be
eligible to receive under the provisions of Section 6.02 means a
monthly benefit payable for the remaining lifetime of the
Surviving Spouse. The amount of the Qualified Survivor Annuity
benefit will be the amount of benefit which can be purchased
from an Insurer with the Participant's Vested Accrued Benefit.
If the Participant's Vested Accrued Benefit is $3,500 or less,
the Plan Administrator will direct the immediate distribution of
the Participant's Vested Accrued Benefit to the Surviving
Spouse. If the Participant's Vested Accrued Benefit at the time
of any distribution exceeds $3,500, the Vested Accrued Benefit
at any later time will be deemed to exceed $3,500. The Surviving
Spouse may elect to receive the Qualified Survivor Annuity as a
lump sum.
1.33 Related Employer
The terms Related Employer and Affiliated Employer are used
interchangeably and mean any other corporation, association, company or
entity on or after the Effective Date which is, along with the Employer, a
member of a controlled group of corporations (as defined in Code Section
414(b)), a group of trades or businesses which are under common control
(as defined in Code Section 414(c)), an affiliated service group (as
defined in Code Section 414(m)), or any organization or arrangement
required to be aggregated with the Employer by Treasury Regulations issued
under Code Section 414(o).
1.34 Required Beginning Date
A Participant's Required Beginning Date for the commencement of benefit
payments from the Plan is the April 1 immediately following:
o the later of 1989 or the calendar year in which he attained age
70-1/2 if he attained age 70-1/2 after December 31, 1987;
o the calendar year in which he attains age 70-1/2 if he is or was
a Five Percent Owner at any time during the Plan Year ending
with or within the calendar year in which he attains age 66-1/2
or any later Plan Year; or
o the later of the calendar year in which he attains age 70-1/2 or
the calendar year in which he retires for any other Participant.
1-11
<PAGE> 15
1.35 Surviving Spouse
Surviving Spouse means a deceased Participant's spouse who was married to
the Participant on the Participant's date of death. The Plan Administrator
and the Trustee may rely conclusively on a Participant's written statement
of his marital status. Neither the Plan Administrator nor the Trustee is
required at any time to inquire into the validity of any marriage, the
effectiveness of a common-law relationship or the claim of any alleged
spouse which is inconsistent with the Participant's report of his marital
status and the identity of his spouse.
1.36 Top-Heavy Definitions
(a) Aggregate Account
Aggregate Account means, with respect to each Participant, the value
of all accounts maintained on behalf of the Participant, whether
attributable to Employer or Employee contributions, used to determine
Top-Heavy Plan status under the provisions of a defined contribution
plan. A Participant's Aggregate Account as of the Determination Date
will be the sum of:
o the balance of his Account(s) as of the most recent
valuation date occurring within a 12-month period ending on
the Determination Date (excluding any amounts attributable
to deductible voluntary employee contributions); plus
o contributions that would be allocated as of a date not
later than the Determination Date, even though those
amounts are not yet made or required to be made; plus
o any Plan Distributions made within the Plan Year that
includes the Determination Date or within the four
preceding Plan Years.
(b) Aggregation Group
Aggregation Group means either a Required Aggregation Group or a
Permissive Aggregation Group as hereinafter determined.
(1) Required Aggregation Group
Each plan of the Employer in which a Key Employee is a
Participant, and each other plan of the Employer which enables
any plan in which a Key Employee participates to meet the
requirements of Code Section 401(a)(4) or 410, will be
aggregated and the resulting group will be known as a Required
Aggregation Group.
Each plan in the Required Aggregation Group will be considered a
Top-Heavy Plan if the Required Aggregation Group is a Top-Heavy
Group. No plan in the Required Aggregation Group will be
considered a Top-Heavy Plan if the Required Aggregation Group is
not a Top-Heavy Group.
(2) Permissive Aggregation Group
The Employer may also include any other plan not required to be
included in the Required Aggregation Group, provided the
resulting group (to be known as a Permissive Aggregation Group),
taken as a whole, would continue to satisfy the provisions of
Code Sections 401(a)(4) and 410.
Only a plan that is part of the Required Aggregation Group will
be considered a Top-Heavy Plan if the Permissive Aggregation
Group is a Top-Heavy Group. No plan in the Permissive
Aggregation Group will be considered a Top-Heavy Plan if the
Permissive Aggregation Group is not a Top-Heavy Group.
1-12
<PAGE> 16
Only those plans of the Employer in which the Determination
Dates fall within the same calendar year will be aggregated in
order to determine whether the plans are Top-Heavy Plans.
(c) Determination Date
Determination Date means the last day of the preceding Plan
Year, or, in the case of the first Plan Year, the last day of
the first Plan Year.
(d) Key Employee
Key Employee means any Employee or former Employee (and his
Beneficiary) who, at any time during the Plan Year or any of the
preceding four Plan Years, was:
(1) A "Five Percent Owner" of the Employer. "Five Percent
Owner" means any person who owns (or is considered as
owning within the meaning of Code Section 318) more than 5%
of the value of the outstanding stock of the Employer or
stock possessing more than 5% of the total combined voting
power of all stock of the Employer. If the Employer is not
a corporation, Five Percent Owner means any person who owns
more than 5% of the capital or profits interest in the
Employer. In determining percentage ownership hereunder,
Related Employers will be treated as separate Employers; or
(2) A "One Percent Owner" of the Employer having Compensation
from the Employer of more than $150,000. "One Percent
Owner" means any person who owns (or is considered as
owning within the meaning of Code Section 318) more than 1%
of the value of the outstanding stock of the Employer or
stock possessing more than 1% of the total combined voting
power of all stock of the Employer. If the Employer is not
a corporation, One Percent Owner means any person who owns
more than 1% of the capital or profits interest in the
Employer. In determining percentage ownership hereunder,
Related Employers will be treated as separate Employers.
However, in determining whether an individual has
Compensation of more than $150,000, Compensation from each
Related Employer will be taken into account.
(3) One of the 10 Employees having Compensation not less than
the Defined Contribution Dollar Limit (as defined in
Section 7.03(j) for the Plan Year) who owns (or is
considered as owning within the meaning of Code Section
318) both greater than 1/2% interest and the largest
interests in all Employers required to be aggregated under
Code Sections 414(b), (c), (m) and (o);
(4) An officer (within the meaning of the regulations under
Code Section 416) of the Employer having Compensation
greater than 50% of the Defined Benefit Dollar Limit as
defined in Section 7.03(f) for the Plan Year;
For purposes of this Section, Compensation means Aggregate
Compensation as defined in Section 7.03(a) plus any amounts
contributed by the Employer pursuant to a salary reduction
agreement which are excludable from the gross income of the
Employee under Code Section 125, 402(e)(3), 402(h) or 403(b).
Compensation in excess of the Statutory Compensation Limit is
disregarded.
(e) Non-Key Employee
Non-Key Employee means any Employee (and his Beneficiaries) who
is not a Key Employee.
(f) Plan Distributions
Plan distributions include distributions made before January 1,
1984, and distributions under a terminated plan which, if it had
not been terminated, would have been required to be included in
an aggregation group. However, distributions made after the
valuation date
1-13
<PAGE> 17
and before the Determination Date are not included to the extent
that they are already included in the Participant's Single Sum
Benefit as of the valuation date.
With respect to "unrelated" rollovers and plan-to-plan transfers
(those which are both initiated by an employee and made from a
plan maintained by one employer to a plan maintained by another
employer), if such a rollover or plan-to-plan transfer is made
from this Plan, it will be considered as a distribution for
purposes of this Section. If such a rollover or plan-to-plan
transfer is made to this Plan, it will not be considered as part
of the Participant's Single Sum Benefit. However, an unrelated
rollover or plan-to-plan transfer accepted before January 1,
1984, will be considered as part of the Participant's Single Sum
Benefit.
With respect to "related" rollovers and plan-to-plan transfers
(those which are either not initiated by an employee or are made
from one plan to another plan maintained by the same employer),
if such a rollover or plan-to-plan transfer is made from this
Plan, it will not be considered as a distribution for purposes
of this Section. If such a rollover or plan-to-plan transfer is
made to this Plan, it will be considered as part of the
Participant's Single Sum Benefit.
(g) Present Value of Accrued Benefit
In the case of the defined benefit plan, a Participant's Present
Value of Accrued Benefit, for Top-Heavy determination purposes,
will be determined using the following rules:
(1) The Present Value of Accrued Benefit will be determined as
of the most recent "valuation date" within a 12-month
period ending on the Determination Date.
(2) For the first Plan Year, the Present Value of Accrued
Benefit will be determined as if (A) the Participant
terminated service as of the Determination Date; or (B) the
Participant terminated service as of the valuation date,
but taking into account the estimated Present Value of
Accrued Benefits as of the Determination Date.
(3) For any other Plan Year, the Present Value of Accrued
Benefit will be determined as if the Participant terminated
service as of the valuation date.
(4) The valuation date must be the same date used for computing
the defined benefit plan minimum funding costs, regardless
of whether a calculation is performed that plan year.
(5) A Participant's Present Value of Accrued Benefit as of a
Determination Date will be the sum of:
o the present value of his Accrued Benefit
determined using the actuarial assumptions which
are specified below; plus
o any Plan Distributions made within the Plan Year
that includes the Determination Date or within the
four preceding Plan Years; plus
o any employee contributions, whether voluntary or
mandatory. However, amounts attributable to
qualified voluntary employee contributions, as
defined in Code Section 219(e)(2) will not be
considered to be a part of the Participant's
Present Value of Accrued Benefit.
For purposes of this Section, the present value of a
Participant's Accrued Benefit will be equal to the greater
of the present value determined using the actuarial
1-14
<PAGE> 18
assumptions which are specified for Actuarial Equivalent
purposes or the present value determined using the
"Applicable Interest Rate." The Applicable Interest Rate is
the rate or rates that would be used by the Pension Benefit
Guaranty Corporation for a trusteed single-employer plan to
value a Participant's or Beneficiary's benefit on the date
of distribution (the "PBGC Rate"). If the present value
using the PBGC Rate exceeds $25,000, the Applicable
Interest Rate is 120% of the PBGC Rate. However, the use of
120% of the PBGC Rate will never result in a present value
less than $25,000.
(6) Solely for the purpose of determining if this Plan (or any
other plan included in a Required Aggregation Group of
which this Plan is a part) is Top- Heavy, the Accrued
Benefit of any Employee other than a Key Employee will be
determined under
(A) the method, if any, that uniformly applies for accrual
purposes under all plans maintained by the Employer or
any Related Employer, or
(B) if there is no such method, as if the benefit accrued
no more rapidly than the slowest accrual rate
permitted under the fractional accrual rate of Code
Section 411(b)(1)(C).
(h) Single Sum Benefit
The Single Sum Benefit for any Participant in a defined benefit
pension plan will be equal to his Present Value of Accrued
Benefit. The Single Sum Benefit for any Participant in a defined
contribution plan will be equal to his Aggregate Account.
(i) Top-Heavy Group
Top-Heavy Group means an Aggregation Group in which, as of the
Determination Date, the Single Sum Benefits of all Key Employees
under all plans included in the group exceeds 60% of a similar
sum determined for all Participants.
Super Top-Heavy Group means an Aggregation Group in which, as of
the Determination Date, the sum of (1) the Single Sum Benefits
of all Key Employees under all defined benefit plans included in
the group, plus (2) the Single Sum Benefit of all Key Employees
under all defined contribution plans included in the group
exceeds 90% of a similar sum determined for all Participants.
(j) Top-Heavy Plan
This Plan will be a Top-Heavy Plan for any Plan Year beginning
after December 31, 1983, in which, as of the Determination Date,
the Single Sum Benefits of all Key Employees exceed 60% of the
Single Sum Benefits of all Participants under this Plan.
This Plan will be a Super Top-Heavy Plan for any Plan Year
beginning after December 31, 1983, in which, as of the
Determination Date, the Single Sum Benefits of all Key Employees
exceed 90% of the Single Sum Benefits of all Participants under
this Plan.
If any Participant is a Non-Key Employee for a given Plan Year,
but was a Key Employee for any prior Plan Year, the
Participant's Single Sum Benefit will not be taken into account
for purposes of determining whether this Plan is a Top-Heavy or
Super Top-Heavy Plan (or whether any Aggregation Group which
includes this Plan is a Top-Heavy or Super Top-Heavy Group).
If an individual has performed no services for the Employer at
any time during the 5-year period ending on the Determination
Date, any Single Sum Benefit of such individual will not be
taken into account for purposes of determining whether this Plan
is a Top-Heavy or
1-15
<PAGE> 19
Super Top-Heavy Plan (or whether any Aggregation Group which
includes this Plan is a Top-Heavy Group or Super Top-Heavy
Group).
1.37 Trust Fund, Trust
These terms mean the total cash, securities, real property, insurance
contracts and any other property held by the Trustee.
1.38 Trustee
Effective October 1, 1996, or the first date thereafter that Charles
Schwab Trust Company accepts appointment as Trustee, the Trustee is
Charles Schwab Trust Company or any successor Trustee.
1.39 Vested Percentage
A Participant's Vested Percentage as of a given date will be that
percentage determined in accordance with the Vesting Schedule.
Notwithstanding the preceding, a Participant will be 100% vested upon
reaching his Normal Retirement Age.
1.40 Vesting Schedule
A Participant's Vested Percentage will be 100% upon the completion of 3
Years of Vesting Service. Prior to the completion of 3 Years of Vesting
Service, a Participant's Vested Percentage is zero.
1.41 Written Resolution
The terms Written Resolution and Written Consent are used interchangeably
and reflect decisions, authorizations, etc. by the Employer. A Written
Resolution will be evidenced by a resolution of the Board of Directors of
the Employer.
1.42 Year of Service
(a) Crediting Years of Service
Effective July 1, 1994, Years of Service are determined under the
Elapsed Time Method. Under the Elapsed Time Method, Years of Service
are based upon an Employee's Elapsed Time of employment irrespective
of the number of hours actually worked during such period; a Year of
Service (including a fraction thereof) will be credited for each
completed 365 days of Elapsed Time which need not be consecutive. The
following terms are used in determining Years of Service under the
Elapsed Time Method:
(1) Date of Severance (Termination) - means the earlier of (A) the
actual date an Employee resigns, is discharged, dies or retires,
or (B) the first anniversary of the date an Employee is absent
from work (with or without pay) for any other reason, e.g.,
disability, vacation, leave of absence, layoff, etc.
(2) Elapsed Time - means the total period of service which has
elapsed between a Participant's Employment Commencement Date and
Date of Termination including Periods of Severance where a One
Year Break-in-Service does not occur.
(3) Employment Commencement Date - means the date an Employee first
performs one Hour of Service for the Employer.
(4) One Year Break-in-Service - means any 365-day period following
an Employee's Date of Termination as defined above in which the
Employee does not complete at least one Hour of Service.
(5) Period of Severance - is the time between the actual Date of
Severance as defined
1-16
<PAGE> 20
above and the subsequent date, if any, on which the Employee
performs an Hour of Service.
All periods of employment will be aggregated including Periods of
Severance unless there is a One Year Break-in-Service.
Prior to July 1, 1994, Years of Service are determined under the
Hours of Service Method. Under the Hours of Service Method, a Year of
Service will be credited for each 12 consecutive month Computation
Period during which an Employee is credited with a specified number
of Hours of Service.
Under the Hours of Service Method, a One Year Break-in-Service means
any Computation Period during which an Employee completes 500 or
fewer Hours of Service.
Years of Eligibility Service for purposes of determining eligibility
to participate in the Plan and Years of Vesting Service for purposes
of determining a Participant's Vested Percentage include service with
any organization which is a Related Employer with respect to the
Employer.
(b) For Eligibility Purposes
Effective July 1, 1994, Years of Service for purposes of eligibility
to participate in the Plan are referred to as Years of Eligibility
Service and are determined using the Elapsed Time Method.
All of an Employee's Years of Eligibility Service are taken into
account in determining his eligibility to participate.
Prior to July 1, 1994, Years of Service for purposes of eligibility
to participate in the Plan are referred to as Years of Eligibility
Service and are determined using the Hours of Service Method.
A Year of Eligibility Service is credited for each Computation Period
during which an Employee is credited with at least 1,000 Hours of
Service. The initial Computation Period is the 12 consecutive month
period beginning with the Employee's Employment Commencement Date.
Thereafter, the Computation Period is the Plan Year beginning with
the Plan Year in which the initial Computation Period ends.
(c) For Vesting Purposes
Effective July 1, 1994, Years of Service for purposes of computing a
Participant's Vested Percentage are referred to as Years of Vesting
Service and are determined using the Elapsed Time Method.
Prior to July 1, 1994, Years of Service for purposes of computing a
Participant's Vested Percentage are referred to as Years of Vesting
Service and are determined using the Hours of Service Method.
A Year of Vesting Service is credited for each Plan Year in which an
Employee is credited with at least 1,000 Hours of Service. Only full
Years of Service are credited.
Service shall be disregarded in computing a Participant's Years of
Vesting Service under the Plan for Plan Years during a period prior
to March 1, 1985, for which the Employee was eligible to make basic
contributions (after-tax contributions) but declined to make any such
contributions to the Plan, if such period occurred prior to his
initial date of participation in the Plan.
1-17
<PAGE> 21
Service shall be disregarded in computing a Participant's Years of
Vesting Service for Plan Years during a period on or after March 1,
1985 but before October 1, 1993, for which the Employee was eligible
to direct the Employer to make Salary Deferral Contributions on his
behalf but declined to direct the Employer to make any such
contributions to the Plan; and if such period occurred prior to his
initial date of participation in the Plan.
Service prior to July 1, 1974, shall be disregarded in computing a
Participant's Years of Vesting Service
(d) Loss of Service
If a Participant who is zero percent vested terminates employment and
incurs at least five consecutive One Year Breaks-in-Service, he or
she will lose all prior Eligibility Service and Vesting Service.
1-18
<PAGE> 22
ARTICLE 2
PARTICIPATION
2.01 Participation
An Employee who is a member of an Eligible Employee Classification will
become eligible to participate in the Plan on the Entry Date which
coincides with or next follows the completion of 6 months of employment.
The foregoing paragraph will apply to each Employee, provided that, based
on his rate of hours worked, it is anticipated that he will complete 1,000
or more Hours of Eligibility Service in his initial eligibility
Computation Period as described in Section 1.42(b). If an Employee fails
to become a Participant because it is anticipated that he will not
complete 1,000 or more Hours of Eligibility Service in his initial
eligibility Computation Period then the Employee will become a Participant
on the first Entry Date following the first eligibility Computation Period
in which he completes 1,000 or more Hours of Eligibility Service.
An Employee who is eligible to participate as of the Effective Date or as
of a given Entry Date will automatically become a Participant as of such
date. An Employee who is otherwise eligible to participate may irrevocably
elect not to participate in the Plan. Any election under this paragraph
must be in writing and according to guidelines established by the Plan
Administrator.
2.02 Participation After Reemployment
An Employee who has satisfied all of the eligibility requirements but
terminates employment prior to his Entry Date will participate in the Plan
immediately upon returning to the employ of the Employer.
A Participant or Former Participant who has terminated employment will
participate as an Active Participant in the Plan immediately upon
returning to the employ of the Employer.
2.03 Change in Employment Classification
In the event a Participant becomes ineligible to participate because he is
no longer a member of an Eligible Employee Classification, the Participant
will participate immediately upon his return to an Eligible Employee
Classification.
In the event an Employee who is not a member of an Eligible Employee
Classification becomes a member of such a classification, such Employee
will begin to participate immediately if he has satisfied the eligibility
requirements which are specified in Section 2.01.
2.04 Portability
In the event an individual is transferred to or from employment covered by
this Plan from or to employment covered by another plan, the provisions of
this Section 2.04 shall control in situations where the provisions of this
Section 2.04 are in conflict with any other Section or Sections of the
Plan.
In the event that an individual is transferred from employment covered by
a plan sponsored by a Portability Group Member to employment covered by
this Plan, employment of such individual which is counted for eligibility,
vesting, and/or benefit accrual under the other plan may be counted as
Service for the same purpose under this Plan if provided for by the
acquisition, merger, and/or adoption agreement. Provided, however, that
participation in this Plan shall not commence prior to the date on which
the transfer takes place.
2-1
<PAGE> 23
In the event that an individual is transferred from employment covered by
this Plan to employment covered by a plan sponsored by a Portability Group
Member, employment of such individual which is counted for vesting
purposes under the other plan may be counted as Service for vesting
purposes under this Plan. The individual's Accounts in the Plan shall be
maintained on an inactive basis and will continue to share in the
allocation of investment earnings pursuant to Section 4.02 herof. Except
as otherwise provided in this paragraph, such individual will not share in
the allocation of Company Matching Contributions or Forfeitures under this
Plan after the date of his transfer to employment covered by a Portability
Group Member. In the Plan Year in which such transfer occurs, such
individual shall be entitled to share in the Company Matching
Contributions or Forfeitures under the Portability Group Member's plan.
2-2
<PAGE> 24
ARTICLE 3
PARTICIPANT ACCOUNTS
3.01 Employee Account
Employee Account means the Account of a Participant reflecting applicable
contributions, investment income or loss allocated thereto and
distributions. A Participant's Employee Account is 100% vested at all
times.
(a) Employee Contributions
(1) Amount of Contribution
Each Participant may elect to make an Employee Contribution each
Contribution Period not to exceed 15% of the Participant's
Compensation. Such contribution will be designated as a
percentage of Compensation and will be equal to an even multiple
of 1% or such other amount as allowed by the Plan Administrator.
(2) Payroll Withholding
All Employee Contributions will be made pursuant to a Payroll
Withholding Agreement in accordance with Section 1.27.
(3) Nondiscrimination Requirements
All Employee Contributions are Elective Contributions within the
meaning of Section 4.05(a) and must satisfy the
Nondiscrimination Requirements of Section 4.05.
(4) Excess Deferrals
The maximum amount of Employee Contribution which can be made
under the Plan on behalf of any Participant during any calendar
year will be limited to that amount which would not constitute
an Excess Deferral as defined in Section 4.05. The Plan
Administrator will distribute any Excess Deferral, together with
the income allocable to it, to the Participant no later than
April 15 of the calendar year immediately following the year of
the Excess Deferral. If a Participant notifies the Plan
Administrator before March 1 of any calendar year that Excess
Deferrals have been made on his account for the previous
calendar year by reason of participation in a Cash or Deferred
Arrangement maintained by another employer or employers, and if
the Participant requests that the Plan Administrator distribute
a specific amount to him on account of Excess Deferrals and
certifies that the requested amount is an Excess Deferral, the
Plan Administrator will designate the amount requested together
with the income allocable to it as a distribution of Excess
deferrals and distribute such amount no later than April 15 of
that calendar year. The amount of Excess Deferrals to be
distributed will be reduced by any Excess Contributions
previously distributed or recharacterized with respect to the
Plan Year beginning with or within the calendar year. The amount
of income allocable to the Excess Deferral will be determined as
described in Section 4.05.
(5) Timing of Deposits
The Employer will deposit all Employee Contributions on the
earliest date on which such contributions can reasonably be
segregated from the Employer's general assets, but in no event
later than 30 days after the date on which the amounts withheld
would otherwise have been paid to the Participant in cash.
The Contribution Period for Employee Contributions is each
month.
3-1
<PAGE> 25
(b) Financial Hardship Withdrawals
A Participant may file with the Plan Administrator a written request
to withdraw, in order to avoid or alleviate a Financial Hardship, any
amount not to exceed that portion of his Employee Account which
represents the sum of
o his total Employee Contributions made after 1988, and
o his total Employee Contributions made before 1989 together
with the income earned before 1989 which is allocable to
those Contributions.
The Plan Administrator will allow Financial Hardship withdrawals only
if they are necessary to satisfy a Participant's immediate and heavy
financial need.
(1) Immediate and Heavy Financial Need
A withdrawal will be deemed to be made due to an immediate and
heavy financial need of the Participant if it is made because
of:
o Expenses for medical care described in Code Section
213(d) previously incurred by the Participant, his
spouse or any of his dependents (as defined in Code
Section 152) or necessary for these persons to obtain
medical care described in Code Section 213(d);
o Costs directly related to the purchase (excluding
mortgage payments) of a principal residence for the
Participant;
o Payment of tuition or educational fees for the next 12
months of post-secondary education for the
Participant, his spouse, children or dependents (as
defined in Code Section 152);
o Prevention of the eviction of the Participant from his
principal residence or foreclosure on the mortgage of
the Participant's principal residence.
(2) Necessary To Satisfy Financial Need
No withdrawal may exceed the amount necessary to satisfy the
Participant's immediate and heavy financial need. However, the
amount of an immediate and heavy financial need may include any
amounts necessary to pay any federal, state or local income
taxes or penalties reasonably anticipated to result from the
distribution. The Plan Administrator will allow the withdrawal
if it determines, after a full review of the Participant's
written request and evidence presented by the Participant
showing immediate and heavy financial need as well as the
Participant's lack of other reasonably available resources, that
the withdrawal is necessary to satisfy the need. No withdrawal
will be treated as necessary to the extent it can be satisfied
from other resources which are reasonably available to the
Participant, including those of the Participant's spouse and
minor children. A withdrawal will be treated as necessary to the
extent the Participant demonstrates to the satisfaction of the
Plan Administrator that the need cannot be relieved by any of
the following:
o Reimbursement or compensation by insurance or
otherwise;
o Reasonable liquidation of assets to the extent the
liquidation would not itself cause an immediate and
heavy financial need;
o Cessation of Employee Contributions or Employee
After-tax Contributions (as
3-2
<PAGE> 26
defined in Section 4.05(a)) or both under any plan
maintained by any employer;
o Other distributions or nontaxable (at the time of the
loan) loans from plans maintained by any employer;
o Borrowing from commercial sources on reasonable
commercial terms.
Unless the Plan Administrator has evidence to the contrary, it
may rely upon the Participant's written representation that the
need cannot be relieved by any of the foregoing.
(3) Safe Harbor
The Plan Administrator will not allow any withdrawal until the
Participant has obtained all distributions, other than hardship
distributions, and all nontaxable loans currently available to
the Participant under all plans maintained by the Employer. Upon
the withdrawal of any portion of a Participant's Employee
Account, the Participant will become ineligible for any Elective
Contribution to this Plan or any other plan maintained by the
Employer, or to make any contribution to this Plan or any other
plan maintained by the Employer until the first day of the first
payroll period which begins not less than 12 months following
the date of withdrawal. For this purpose the phrase "any other
plan maintained by the Employer" means all qualified and
nonqualified plans of deferred compensation maintained by the
Employer. The phrase includes stock option, stock purchase, or
similar plans, or a cash or deferred arrangement that is part of
a cafeteria plan within the meaning of Code Section 125. It does
not include the mandatory employee contribution portion of a
defined benefit plan, nor does it include a health or welfare
benefit plan (including one that is part of a cafeteria plan
within the meaning of Code Section 125). Furthermore, the
maximum amount of Employee Contributions which can be made under
the Plan on behalf of any Participant during the calendar year
which follows the calendar year in which the withdrawal was made
will be limited to the amount which would not be treated as an
Excess Deferral for that year reduced by the amount of Employee
Contributions made on behalf of the Participant in the calendar
year of withdrawal.
(c) Distributions
No distribution may be made from the Participant's Employee Account
or any account comprised of Matching Contributions or Nonelective
Contributions which are treated as Elective Contributions in
accordance with the provisions of Section 4.05(h) except under one of
the following circumstances:
o the Participant's retirement, death, disability or
termination of employment;
o the Participant's attaining of age 59 1/2;
o the avoidance or alleviation of a Financial Hardship;
o the termination of this Plan without the establishment of a
successor plan within the meaning of Treasury Regulation
Section 1.401(k)-1(d)(3);
o the sale or other disposition by the Employer of at least
85 percent of the assets used by the Employer in a trade or
business to an unrelated corporation which does not
maintain the plan, but only if the Participant continues
employment with the corporation acquiring the assets and
only if the Employer continues to maintain this Plan; or
3-3
<PAGE> 27
o the sale or other disposition by the Employer of its
interest in a subsidiary to an unrelated entity which does
not maintain the plan, but only if the Participant
continues employment with the subsidiary and only if the
Employer continues to maintain this Plan.
This paragraph does not apply to distributions of Excess Deferrals,
Excess Contributions, or excess Annual Additions.
3.02 Pre 401(k) Account
Pre 401(k) Account means the Account of a Participant reflecting
applicable contributions, investment income or loss allocated thereto and
distributions. A Participant's Pre 401(k) Account is 100% vested at all
times.
(a) Contributions
Prior to April 1, 1994, this account was referred to as the Employee
Nondeferred Account. The Pre 401(k) Account is a frozen account
consisting of Employee After-tax contributions contributed prior to
March 1, 1985 and earnings thereon.
(b) Withdrawals
A Participant may withdraw all or any portion of his Pre 401(k)
Account subject to the limitations of this Section.
3.03 Company Matching Account
Company Matching Account means the Account of a Participant reflecting
applicable contributions, forfeitures, investment income or loss allocated
thereto and distributions. A Participant's Company Matching Account is
subject to the Vesting Schedule.
(a) Company Match Contributions
Each Contribution Period, the Employer will, within the time
prescribed by law for making a deductible contribution, make a
Company Match Contribution to each Eligible Participant's Company
Matching Account in an amount which is determined in accordance with
this Section subject to the limitations of Article 7.
The amount of Company Match Contribution to be made to an Eligible
Participant's Company Matching Account is equal to 100% of that
portion of the Participant's Employee Contribution which is not in
excess of 4% of the Participant's Compensation.
All Company Match Contributions are Matching Contributions within the
meaning of Section 4.05(a) and must satisfy the Nondiscrimination
Requirements of Section 4.05.
(b) Contribution Period
The Contribution Period for Company Match Contributions is each
month.
(c) Application of Forfeitures
Forfeitures from a Participant's Company Matching Account may be used
to pay plan expenses and/or to reduce Company Match Contributions in
the Plan Year in which the Forfeitures are determined to occur.
Notwithstanding the above, amounts forfeited from a Participant's
Company Matching Account prior to July 1, 1996 are added to the
thrifters fund and allocated along with Company Matching
Contributions on the last day of the Plan Year in which the
forfeitures are determined to occur.
3-4
<PAGE> 28
Amounts forfeited prior to July 1, 1996 will be allocated by the
ratio which each Eligible Participant's Compensation bears to the
total Compensation of all Eligible Participants.
(d) Withdrawals
A Participant must take any withdrawals available to him under
Section 3.02(a) and/or Section 3.04(b) before being eligible to make
a Company Matching Account withdrawal.
A Participant will be permitted to make a Company Matching Account
withdrawal if at least one of the following conditions applies:
(1) If the Employee has been a Participant for five or more years
and has a date of participation in the Plan on or after January
1, 1995;
(2) If the Participant has attained age fifty-nine and one-half; or
(3) On account of a Participant's financial need or hardship as that
term is defined in Section 3.01(b)(1).
A Company Matching Account withdrawal will not result in a suspension
of Company Matching Contributions.
A Participant who is eligible to make a withdrawal from his Company
Matching Account may not make a withdrawal from his Company Matching
Account more frequently than once each Plan Year.
3.04 Rollover Account
Rollover Account means the Account of a Participant reflecting applicable
Rollover contributions, investment income or loss allocated thereto and
distributions. A Participant's Rollover Account is 100% vested at all
times.
(a) Rollover Contributions
Rollover Contribution means a contribution to the Plan by a
Participant where such contribution is the result of a prior
distribution from an Individual Retirement Account, an Individual
Retirement Annuity or another qualified plan. Such prior contribution
must be a rollover amount described in Section 402(c)(4) of the Code
or a contribution described in Section 408(d)(3) of the Code.
Each Employee who is a member of an Eligible Employee Classification,
regardless of whether he is a Participant in the Plan, will have the
right to make a Rollover Contribution of cash (or other property of a
form acceptable to the Plan Administrator and the Trustee) into the
Plan from another qualified plan. If the Employee is not a
Participant hereunder, his Rollover Account will constitute his
entire interest in the Plan. In no event will the existence of a
Rollover Account entitle the Employee to participate in any other
benefit provided by the Plan.
If specifically provided for in a Written Resolution, Rollover
Contribution will also mean the amount of assets transferred,
pursuant to Section 10.05, to this Plan from another plan which is
qualified under Code Sections 401(a) and 501(a).
3-5
<PAGE> 29
(b) Withdrawals
A Participant may withdraw all or any portion of his Rollover Account
subject to the limitations of this Section.
3-6
<PAGE> 30
ARTICLE 4
ACCOUNTING AND VALUATION
4.01 General Powers of the Plan Administrator
The Plan Administrator will have the power to establish rules and
guidelines, which will be applied on a uniform and non-discriminatory
basis, as it deems necessary, desirable or appropriate with regard to
accounting procedures and to the timing and method of contributions to
and/or withdrawals from the Plan.
4.02 Valuation Procedure
As of each Valuation Date, the Plan Administrator will determine from the
Trustee the fair market value of Trust assets and will, subject to the
provisions of this Article, determine the allocation of such value among
the Accounts of the Participants; in doing so, the Plan Administrator will
in the following order:
(a) Credit or charge, as appropriate, to the proper Accounts all
contributions, payments, transfers, forfeitures, withdrawals or other
distributions made to or from such Accounts since the last preceding
Valuation Date and that have not been previously credited or charged.
(b) Credit or charge, as applicable, each Account with its pro rata
portion of the appreciation or depreciation in the fair market value
of the Trust Fund since the prior Valuation Date. Such appreciation
or depreciation will reflect investment income, realized and
unrealized gains and losses, other investment transactions and
expenses paid from the Trust Fund.
4.03 Reserved
4.04 Participant Direction of Investment
(a) Application of this Section
Subject to the provisions of this Section, each Participant will have
the right to direct the investment of all of his Accounts among the
Specific Investment Funds which are made available by the Plan
Administrator.
(b) General Powers of the Trustee
The Trustee will have the power to establish rules and guidelines as
it deems necessary, desirable or appropriate with regard to the
directed investment of contributions in accordance with this Section.
Such rules and guidelines are intended to comply with Section 404(c)
of ERISA and the regulations thereunder. Included in such powers, but
not by way of limitation, are the following powers and rights.
(1) To temporarily invest those contributions which are pending
directed investment in a Specific Investment Fund, in the
General Investment Fund or in some other manner as determined by
the Trustee.
(2) To establish rules with regard to the transfer of all or any
part of the balance of an Account or Accounts of a given
Participant from one Investment Fund to another.
(3) To maintain any part of the assets of any Investment Fund in
cash, or in demand or short-term time deposits bearing a
reasonable rate of interest, or in a short-term investment fund
that provides for the collective investment of cash balances or
in
4-1
<PAGE> 31
other cash equivalents having ready marketability, including,
but not limited to, U.S. Treasury Bills, commercial paper,
certificates of deposit, and similar types of short-term
securities, as may be deemed necessary by the Trustee in its
sole discretion.
The Trustee will not be liable for any loss that results from a
Participant's exercise of control over the investment of the
Participant's Accounts. If the Participant fails to provide adequate
directions, the Plan Administrator will direct the investment of the
Participant's Account. The Trustee will have no duty to review or
make recommendations regarding a Participant's investment directions.
(c) Accounting
The Plan Administrator will maintain a set of accounts for each
Investment Fund. The accounts of the Plan Administrator for each
Investment Fund will indicate separately the dollar amounts of all
contributions made to such Investment Fund by or on behalf of each
Participant from time to time. The Plan Administrator will compute
the net income from investments; net profits or losses arising from
the sale, exchange, redemption, or other disposition of assets, and
the prorata share attributable to each Investment Fund of the
expenses of the administration of the Plan and Trust and will debit
or credit, as the case may be, such income, profits or losses, and
expenses to the unsegregated balance in each Investment Fund from
time to time. To the extent that the expenses of the administration
of the Plan and Trust are not directly attributable to a given
Investment Fund, such expenses, as of a given Valuation Date, will be
prorated among each Investment Fund; such allocation of expenses
will, in general, be performed in accordance with the guidelines
which are specified in this Article.
(d) Future Contributions
Each Participant who chooses to participate in the Plan will elect
the percentage of those contributions (which are subject to
Participant direction of investment) which is to be deposited to each
available Investment Fund. Such election will be in effect until
modified. If any Participant fails to make an election by the
appropriate date, he will be deemed to have elected an Investment
Fund(s) as determined by the Plan Administrator. Elections will be
limited to multiples of one percent (or such other reasonable
increments as determined by the Plan Administrator).
(e) Change in Investment of Past Contributions
A Participant may file an election with the Plan Administrator to
shift the aggregate amount or reasonable increments (as determined by
the Plan Administrator) of the balance of his existing Account or
Accounts which are subject to Participant direction of investment
among the various Investment Funds as of the first day of each
Accounting Period (or such other time or times as determined by the
Plan Administrator). Elections will be limited to multiples of one
percent (or such other reasonable increments as determined by the
Plan Administrator).
(f) Changes in Investment Elections
Elections with respect to future contributions and/or with respect to
changes in the investment of past contributions will be in writing on
a form provided by the Plan Administrator, except that each
Participant may authorize the Plan Administrator in writing on an
authorization form provided by the Plan Administrator to accept such
directions as may be made by the Participant by use of a telephone
voice response system maintained for such purpose.
The Plan Administrator may establish additional rules and procedures
with respect to investment election changes including, for example,
the number of allowed changes per
4-2
<PAGE> 32
specified period, the amount of reasonable fee, if any, which will be
charged to the Participant for making a change, specified dates or
cutoff dates for making a change, etc.
(g) Addition and Deletion of Specific Investment Funds
Specific Investment Funds may be made available from time to time by
the Trustee. Specific Investment Funds, as are from time to time made
available by the Trustee, may be deleted or added from time to time
by the Plan Administrator. The Plan Administrator will establish
guidelines for the proper administration of affected Accounts when a
Specific Investment Fund is added or deleted.
4.05 Nondiscrimination Requirements
(a) Definitions Applicable to the Nondiscrimination Requirements
The following definitions apply to this Section:
(1) Aggregate Limit
With respect to a given Plan Year, Aggregate Limit means the
greater of the sum of [(A) + (B)] or the sum of [(C) + (D)]
where:
(A) is equal to 125% of the greater of DP or CP;
(B) is equal to 2 percentage points plus the lesser of DP or
CP, not to exceed 2 times the lesser of DP or CP;
(C) is equal to 125% of the lesser of DP or CP;
(D) is equal to 2 percentage points plus the greater of DP or
CP, not to exceed 2 times the greater of DP or CP;
DP represents the Deferral Percentage for the Non-highly
Compensated Group eligible under the Cash or Deferred
Arrangement for the Plan Year; and
CP represents the Contribution Percentage for the Non-highly
Compensated Group eligible under the plan providing for the
Employee After-tax Contributions or Employer Matching
Contributions for the Plan Year beginning with or within
the Plan Year of the Cash or Deferred Arrangement.
(2) Cash or Deferred Arrangement (CODA)
A Cash or Deferred Election is any election (or modification of
an earlier election) by an Employee to have the Employer either:
o provide an amount to the Employee in the form of cash
or some other taxable benefit that is not currently
available, or
o contribute an amount to the Plan (or provide an
accrual or other benefit) thereby deferring receipt of
Compensation.
A Cash or Deferred Election will only be made with respect to an
amount that is not currently available to the Employee on the
date of election. Further, a Cash or Deferred Election will only
be made with respect to amounts that would have (but for the
Cash or Deferred Election) become currently available after the
later of the date on which the Employer adopts the Cash or
Deferred Arrangement or the date on which the arrangement first
becomes effective.
4-3
<PAGE> 33
A Cash or Deferred Election does not include a one-time
irrevocable election upon the Employee's commencement of
employment or first becoming an Eligible Employee.
(3) Compensation
For purposes of this Section, Compensation means Aggregate
Compensation as defined in Section 7.03(a) plus amounts
contributed by the Employer pursuant to a salary reduction
agreement which are excludable from the gross income of the
Employee under Code Section 125, 402(e)(3), 402(h) or 403(b).
Compensation in excess of the Statutory Compensation Limit is
disregarded.
The period used to determine an Employee's Compensation for a
Plan Year may be limited to that portion of the Plan Year in
which the Employee was an Eligible Employee, provided that this
method is applied uniformly to all Eligible Employees under the
Plan for the Plan Year.
(4) Contribution Percentage
Contribution Percentage means, for any specified group, the
average of the ratios calculated (to the nearest one-hundredth
of one percent) separately for each Participant in the group, of
the amount of Employee After-tax Contributions and Matching
Contributions which are made by or on behalf of each Participant
for a Plan Year to each Participant's Compensation for the Plan
Year.
For purposes of determining the Contribution Percentage, each
Employee who is eligible under the terms of the Plan to make or
to have contributions made on his behalf is treated as a
Participant. The Contribution Percentage of an eligible Employee
who makes no Employee After-tax Contribution and receives no
Matching Contribution is zero.
For purposes of determining the Contribution Percentage of a
Participant who is a Highly Compensated Employee, the
Compensation of and all Employee Contributions and Matching
Contributions for the Participant include, in accordance with
the provisions of Section 4.05(d), the Compensation of and all
Employee After-tax Contributions and Matching Contributions for
any Family Member of the Participant.
The Contribution Percentage of a Participant who is a Highly
Compensated Employee for the Plan Year and who is eligible to
make Employee After-tax Contributions or receive an allocation
of Matching Contributions (including Elective Contributions and
Nonelective Contributions which are treated as Employee or
Matching Contributions for purposes of the Contribution
Percentage Test) allocated to his accounts under two or more
plans which are sponsored by the Employer will be determined as
if the Employee After-tax and Matching Contributions were made
under a single plan. For purposes of this paragraph, if a Highly
Compensated Employee participates in two or more such plans
which have different Plan Years, all plans ending with or within
the same calendar year will be treated as a single plan.
(5) Contribution Percentage Test
The Contribution Percentage Test is a test applied on a Plan
Year basis to determine whether a plan meets the requirements of
Code Section 401(m). The Contribution Percentage Test may be met
by either satisfying the General Contribution Percentage Test or
the Alternative Contribution Percentage Test.
The General Contribution Percentage Test is satisfied if the
Contribution Percentage for the Highly Compensated Group does
not exceed 125% of the Contribution Percentage
4-4
<PAGE> 34
for the Non-highly Compensated Group.
The Alternative Contribution Percentage Test is satisfied if the
Contribution Percentage for the Highly Compensated Group does
not exceed the lesser of:
o the Contribution Percentage for the Non-highly
Compensated Group plus 2 percentage points, or
o the Contribution Percentage for the Non-highly
Compensated Group multiplied by 2.0.
If (i) one or more Highly Compensated Employees of the Employer
or any Related Employer are eligible to participate in both a
Cash or Deferred Arrangement and a plan which provides for
Employee After-tax Contributions or Matching Contributions, (ii)
the Deferral Percentage for the Highly Compensated Group does
not satisfy the General Deferral Percentage Test, and (iii) the
Contribution Percentage for the Highly Compensated Group does
not satisfy the General Contribution Percentage Test, then the
Contribution Percentage Test will be deemed to be satisfied only
if the sum of the Deferral Percentage and the Contribution
Percentage for the Highly Compensated Group does not exceed the
Aggregate Limit.
The Plan will not fail to satisfy the Contribution Percentage
test merely because all of the Eligible Employees under the Plan
for a Plan Year are Highly Compensated Employees.
(6) Deferral Percentage
Deferral Percentage means, for any specified group, the average
of the ratios calculated (to the nearest one-hundredth of one
percent) separately for each Participant in the group, of the
amount of Elective Contributions which are made on behalf of
each Participant for a Plan Year to each Participant's
Compensation for the Plan Year.
For purposes of determining the Deferral Percentage, each
Employee who is eligible under the terms of the Plan to have
contributions made on his behalf is treated as a Participant.
The Deferral Percentage of an eligible Employee who makes no
Elective Contribution is zero.
For purposes of determining the Deferral Percentage of a
Participant who is a Highly Compensated Employee, the
Compensation of and Elective Contributions for the Participant
include, in accordance with the provisions of Section 4.05(d),
the Compensation and all Elective Contributions for any Family
Member of the Participant.
The Deferral Percentage of a Participant who is a Highly
Compensated Employee for the Plan Year and who is eligible to
have Elective Contributions (including Nonelective Contributions
or Matching Contributions which are treated as Elective
Contributions for purposes of the Deferral Percentage Test)
allocated to his accounts under two or more Cash or Deferred
Arrangements which are maintained by the Employer will be
determined as if the Elective Contributions were made under a
single Arrangement. For purposes of this paragraph, if a Highly
Compensated Employee participates in two or more Cash or
Deferred Arrangements which have different Plan Years, all Cash
or Deferred Arrangements ending with or within the same calendar
year will be treated as a single Arrangement.
4-5
<PAGE> 35
(7) Deferral Percentage Test
The Deferral Percentage Test is a test applied on a Plan Year
basis to determine whether a plan meets the requirements of Code
Section 401(k). The Deferral Percentage Test may be met by
either satisfying the General Deferral Percentage Test or the
Alternative Deferral Percentage Test.
The General Deferral Percentage Test is satisfied if the
Deferral Percentage for the Highly Compensated Group does not
exceed 125% of the Deferral Percentage for the Non-highly
Compensated Group.
The Alternative Deferral Percentage Test is satisfied if the
Deferral Percentage for the Highly Compensated Group does not
exceed the lesser of:
o the Deferral Percentage for the Non-highly Compensated
Group plus 2 percentage points, or
o the Deferral Percentage for the Non-highly Compensated
Group multiplied by 2.0.
If (i) one or more Highly Compensated Employees of the Employer
or any Related Employer are eligible to participate in both a
Cash or Deferred Arrangement and a plan which provides for
Employee After-tax Contributions or Matching Contributions, (ii)
the Deferral Percentage for the Highly Compensated Group does
not satisfy the General Deferral Percentage Test, and (iii) the
Contribution Percentage for the Highly Compensated Group does
not satisfy the General Contribution Percentage Test, then the
Deferral Percentage Test will be deemed to be satisfied only if
the sum of the Deferral Percentage and the Contribution
Percentage for the Highly Compensated Group does not exceed the
Aggregate Limit.
The Plan will not fail to satisfy the Deferral Percentage test
merely because all of the Eligible Employees under the Plan for
a Plan Year are Highly Compensated Employees.
(8) Elective Contribution
Elective Contribution means any contribution made by the
Employer to a Cash or Deferred Arrangement on behalf of and at
the election of an Employee. An Elective Contribution will be
taken into account for a given Plan Year only if:
o The Elective Contribution is allocated to the
Participant's Account as of a date within the Plan
Year to which it relates;
o The allocation is not contingent upon the Employee's
participation in the Plan or performance of services
on any date after the allocation date;
o The Elective Contribution is actually paid to the
trust no later than 12 months after the end of the
Plan Year to which the Elective Contribution relates;
and
o The Elective Contribution relates to Compensation
which either (i) but for the Participant's election to
defer, would have been received by the Participant in
the Plan Year or (ii) is attributable to services
performed by the Participant in the Plan Year and, but
for the Participant's election to defer,
4-6
<PAGE> 36
would have been received by the Participant within two
and one-half months after the close of the Plan Year.
Elective Contributions will be treated as Employer Contributions
for purposes of Code Sections 401(a), 401(k), 402(a), 404, 409,
411, 412, 415, 416, and 417.
(9) Elective Deferral
Elective Deferral means the sum of the following:
o Any Elective Contribution to any Cash or Deferred
Arrangement to the extent it is not includable in the
Participant's gross income for the taxable year of
contribution;
o Any employer contribution to a simplified employee
pension as defined in Code Section 408(k) to the
extent not includable in the Participant's gross
income for the taxable year of contribution;
o Any employer contribution to an annuity contract under
Code Section 403(b) under a salary reduction agreement
to the extent not includable in the Participant's
gross income for the taxable year of contribution;
plus
o Any employee contribution designated as deductible
under a trust described in Code Section 501(c)(18) for
the taxable year of contribution.
(10) Eligible Employee
Eligible Employee means an Employee who is directly or
indirectly eligible to make a Cash or Deferred Election under
the Plan for all or a portion of the Plan Year. An Employee who
is unable to make a Cash or Deferred Election because the
Employee has not contributed to another plan is also an Eligible
Employee. An Employee who would be eligible to make Elective
Contributions but for a suspension due to a distribution, a
loan, or an election not to participate in the Plan, is treated
as an Eligible Employee for purposes of Code Section 401(k)(3)
and 401(m) for a Plan Year even though the Employee may not make
a Cash or Deferred Election due to the suspension. Also, an
Employee will not fail to be treated as an Eligible Employee
merely because the employee may receive no additional Annual
Additions because of Code Section 415(c)(1) or 415(e).
(11) Employee After-tax Contribution
Employee After-tax Contribution means any contribution made by
an Employee to any plan maintained by the Employer or any
Related Employer which is other than an Elective Contribution
and which is designated or treated at the time of contribution
as an after-tax contribution. Employee After-tax Contributions
include amounts attributable to Excess Contributions which are
recharacterized as Employee After-tax Contributions.
(12) Excess Contribution
Excess Contribution means, for each member of the Highly
Compensated Group, the amount of Elective Contribution
(including any Qualified Nonelective Contributions and Qualified
Matching Contributions which are treated as Elective
Contributions) which exceeds the maximum contribution which
could be made if the Deferral Percentage Test were to be
satisfied.
4-7
<PAGE> 37
(13) Excess Aggregate Contribution
Excess Aggregate Contribution means, for each member of the
Highly Compensated Group, the amount of Employee After-tax and
Matching Contributions (including any Qualified Nonelective
Contributions and Elective Contributions which are treated as
Matching Contributions) which exceeds the maximum contribution
which could be made if the Contribution Percentage Test were to
be satisfied.
(14) Excess Deferral
Excess Deferral means, for a given calendar year, that amount by
which each Participant's total Elective Deferrals under all
plans of all employers exceed the dollar limit in effect under
Code Section 402(g) for the calendar year.
(15) Matching Contribution
Matching Contribution means any contribution made by the
Employer to any plan maintained by the Employer or any Related
Employer which is based on an Elective Contribution or an
Employee After-tax Contribution together with any forfeiture
allocated to the Participant's Account on the basis of Elective
Contributions, Employee After-tax Contributions or Matching
Contributions. A Matching Contribution will be taken into
account for a given Plan Year only if:
o The Matching Contribution is allocated to a
Participant's Account as of a date within the Plan
Year to which it relates;
o The allocation is not contingent upon the Employee's
participation in the Plan or performance of services
on any date after the allocation date;
o The Matching Contribution is actually paid to the
Trust no later than 12 months after the end of the
Plan Year to which the Matching Contribution relates;
and
o The Matching Contribution is based on an Elective or
Employee After-tax Contribution for the Plan Year.
Any contribution or allocation, other than a Qualified
Nonelective Contribution, which is used to meet the minimum
contribution or benefit requirement of Code Section 416 is not
treated as being based on Elective Contributions or Employee
After-tax Contributions and therefore is not treated as a
Matching Contribution.
Qualified Matching Contribution means a Matching Contribution
which is 100% vested and may be withdrawn or distributed only
under the conditions described in Treasury Regulation
1.401(k)-1(d).
(16) Nonelective Contribution
Nonelective Contribution means any Employer Contribution, other
than a Matching Contribution, which meets all of the following
requirements:
o The Nonelective Contribution is allocated to a
Participant's Account as of a date within the Plan
Year to which it relates;
o The allocation is not contingent upon the Employee's
participation in the Plan or performance of services
on any date after the allocation date;
4-8
<PAGE> 38
o The Nonelective Contribution is actually paid to the
Trust no later than 12 months after the end of the
Plan Year to which the Nonelective Contribution
relates; and
o The Employee may not elect to have the Nonelective
Contribution paid in cash in lieu of being contributed
to the Plan.
Qualified Nonelective Contribution means a Nonelective
Contribution which is 100% vested and may be withdrawn or
distributed only under the conditions described in Treasury
Regulation 1.401(k)-1(d).
(b) Application of Deferral Percentage Test
All Elective Contributions, including any Elective Contributions
which are treated as Employee After-tax or Matching Contributions
with respect to the Contribution Percentage Test, must satisfy the
Deferral Percentage Test. Furthermore, any Elective Contributions
which are not treated as Employee After-tax or Matching Contributions
with respect to the Contribution Percentage Test must satisfy the
Deferral Percentage Test. The Plan Administrator will determine as
soon as administratively feasible after the end of the Plan Year
whether the Deferral Percentage Test has been satisfied. If the
Deferral Percentage Test is not satisfied, the Employer may elect to
make an additional contribution to the Plan on account of the
Non-highly Compensated Group. The additional contribution will be
treated as a Nonelective Contribution.
If the Deferral Percentage Test is not satisfied after any
Nonelective Contributions, the Plan Administrator may, in its sole
discretion, recharacterize all or any portion of the Excess
Contribution of each Highly Compensated Employee as an Employee
After-tax Contribution if Employee After-tax Contributions are
otherwise allowed by the Plan. If so, the Plan Administrator will
notify all affected Participants and the Internal Revenue Service of
the amount recharacterized no later than the 15th day of the third
month following the end of the Plan Year in which the Excess
Contribution was made. Excess Contributions will be includable in the
Participant's gross income on the earliest date any Elective
Contribution made on behalf of the Participant during the Plan Year
would have been received by the Participant had the Participant
elected to receive the amount in cash. Recharacterized Excess
Contributions will continue to be treated as Employer Contributions
that are Elective Contributions for all other purposes under the
Code, including Code Sections 401(a) (other than 401(a)(4) and
401(m)), 404, 409, 411, 412, 415, 416, 417 and 401(k)(2). With
respect to the Plan Year for which the Excess Contribution was made,
the Plan Administrator will treat the recharacterized amount as an
Employee After-tax Contribution for purposes of the Deferral
Percentage Test and the Contribution Percentage Test and for purposes
of determining whether the Plan meets the requirements of Code
Section 401(a)(4), but not for any other purposes under this Plan.
Therefore, recharacterized amounts will remain subject to the
nonforfeiture requirements and distribution limitations which apply
to Elective Contributions.
If the Deferral Percentage Test is still not satisfied, then after
the close of the Plan Year in which the Excess Contribution arose but
within 12 months after the close of that Plan Year, the Plan
Administrator will distribute the Excess Contributions, together with
allocable income, to the affected Participants of the Highly
Compensated Group to the extent necessary to satisfy the Deferral
Percentage Test. Failure to do so will cause the Plan to not satisfy
the requirements of Code Section 401(a)(4) for the Plan Year for
which the Excess Contribution was made and for all subsequent Plan
Years for which the Excess Contribution remains uncorrected.
4-9
<PAGE> 39
The amount of Excess Contribution to be distributed to a Highly
Compensated Employee for a Plan Year will be reduced by any Excess
Deferrals previously distributed to the Participant for the calendar
year ending with or within the Plan Year in accordance with Code
Section 402(g)(2).
Excess Contributions will be treated as Employer Contributions for
purposes of Code Sections 404 and 415 even if distributed from the
Plan.
(c) Application of Contribution Percentage Test
Employee After-tax Contributions and Matching Contributions,
disregarding any Matching Contributions which are treated as Elective
Contributions with respect to the Deferral Percentage Test, must
satisfy the Contribution Percentage Test. The Plan Administrator will
determine as soon as administratively feasible after the end of the
Plan Year whether the Contribution Test has been satisfied. If the
Contribution Percentage Test is not satisfied, the Employer may elect
to make an additional contribution to the Plan for the benefit of the
Non-Highly Compensated Group. The additional contribution will be
treated as a Nonelective Contribution.
If the Contribution Percentage Test is still not satisfied, then
after the close of the Plan Year in which the Excess Aggregate
Contribution arose but within 12 months after the close of that Plan
Year, the Plan Administrator will distribute (or forfeit, to the
extent not vested) the Excess Aggregate Contributions, together with
allocable income, to the affected Participants of the Highly
Compensated Group to the extent necessary to satisfy the Contribution
Percentage Test. Failure to do so will cause the Plan to not satisfy
the requirements of Code Section 401(a)(4) for the Plan Year for
which the Excess Aggregate Contribution was made and for all
subsequent Plan Years for which the Excess Aggregate Contribution
remains uncorrected.
The determination of any Excess Aggregate Contributions will be made
after the recharacterization of any Excess Contributions as Employee
After-tax Contributions.
Excess Aggregate Contributions, including forfeited Matching
Contributions, will be treated as Employer Contributions for purposes
of Code Sections 404 and 415 even if they are distributed from the
Plan.
Forfeited Matching Contributions that are reallocated to the Accounts
of other Participants are treated as Annual Additions under Code
Section 415 for the Participant whose Accounts they are reallocated
to and for the Participants from whose Accounts they are forfeited.
(d) Family Aggregation
The Deferral Percentage or the Contribution Percentage (the "Relevant
Percentage") for any Highly Compensated Employee who is subject to
the family aggregation rules of Section 1.18(c) will be determined by
combining the Elective Contributions, Employee After-tax
Contributions, Matching Contribution, amounts treated as Elective or
Matching Contributions and Compensation of all the eligible Family
Members.
The determination and correction of Excess Contributions and Excess
Aggregate Contributions of a Highly Compensated Employee whose
Relevant Percentage is determined under the family aggregation rules
is accomplished by reducing the Relevant Percentage as provided for
in Sections 4.05(b) and 4.05(c) and Excess Contributions or Excess
Aggregate Contributions for the family group are allocated among the
Family Members whose contributions were combined to determine the
Relevant Percentage in proportion to the Elective Contributions or
Nonelective and Matching Contributions of each Family Member.
4-10
<PAGE> 40
For all purposes under this Section, the contributions and
compensation of eligible Family Members who are not Highly
Compensated Employees without regard to family aggregation are
disregarded when determining the Relevant Percentage for the
Non-highly Compensated Group.
(e) Reduction of Excess Amounts
The total Excess Contribution or total Excess Aggregate Contribution
will be reduced in a manner so that the Deferral Percentage or the
Contribution Percentage (Relevant Percentage) of the affected
Participant(s) with the highest Relevant Percentage will first be
lowered to a point not less than the level of the affected
Participant(s) with the next highest Relevant Percentage. If further
overall reductions are required to satisfy the relevant test, each of
the above Participants' (or groups of Participants') Relevant
Percentage will be lowered to a point not less than the level of the
affected Participant(s) with the next highest Relevant Percentage,
and so on continuing until sufficient total reductions have occurred
to achieve satisfaction of the relevant test.
(f) Priority of Reductions
The Plan Administrator will determine the method and order of
correcting Excess Contributions and Excess Aggregate Contributions.
The method of correcting Excess Contributions and Excess Aggregate
Contributions must meet the requirements of Code Section 401(a)(4).
The determination of whether a rate of Matching Contribution
discriminates under Code Section 401(a)(4) will be made after making
any corrective distributions of Excess Deferrals, Excess
Contributions and Excess Aggregate Contributions.
Excess Aggregate Contributions (and any attributable income) will be
corrected first, by distributing any excess Employee After-tax
Contributions (and any attributable income); then by distributing
vested excess Matching Contributions (and any attributable income);
and finally, by forfeiting or distributing non-vested Matching
Contributions (and any attributable income). The Plan will not
distribute Employee After-tax Contributions while the Matching
Contributions based upon those Employee After-tax Contributions
remain allocated.
(g) Income
The income allocable to any Excess Contribution made to a given
Account for a given Plan Year will be equal to the total income
allocated to the Account for the Plan Year, multiplied by a fraction,
the numerator of which is the amount of the Excess Contribution and
the denominator of which is equal to the sum of the balance of the
Account at the beginning of the Plan Year plus the Participant's
Elective Contributions and amounts treated as Elective Contributions
for the Plan Year.
The income allocable to any Excess Aggregate Contribution made to a
given Account for a given Plan Year will be equal to the total income
allocated to the Account for the Plan Year, multiplied by a fraction,
the numerator of which is the amount of the Excess Aggregate
Contribution and the denominator of which is equal to the sum of the
balance of the Account at the beginning of the Plan Year plus the
Participant's Employee After-tax and Matching Contributions and
amounts treated as Employee After-tax and Matching Contributions for
the Plan Year.
Notwithstanding the foregoing, the Plan may use any reasonable method
for computing the income allocable to any Excess Contribution or
Excess Aggregate Contribution provided the method does not violate
Code Section 401(a)(4), is used consistently for all corrective
distributions under the Plan for the Plan Year, and is used by the
Plan for allocating
4-11
<PAGE> 41
income to the Participants' Accounts.
Income includes all earnings and appreciation, including interest,
dividends, rents, royalties, gains from the sale of property, and
appreciation in the value of stocks, bonds, annuity and life
insurance contracts and other property, regardless of whether the
appreciation has been realized.
(h) Treatment as Elective Contributions
The Plan Administrator may, in its discretion, treat all or any
portion of Qualified Nonelective Contributions or Qualified Matching
Contributions or both, whether to this Plan or to any other qualified
plan which has the same Plan Year and is maintained by the Employer
or a Related Employer, as Elective Contributions for purposes of
satisfying the Deferral Percentage Test if they meet all of the
following requirements:
o All Nonelective Contributions, including the Qualified
Nonelective Contributions treated as Elective Contributions
for purposes of the Deferral Percentage Test, satisfy the
requirements of Code Section 401(a)(4);
o Any Nonelective Contributions which are not treated as
Elective Contributions for purposes of the Deferral
Percentage Test or as Matching Contributions for purposes
of the Contribution Percentage Test satisfy the
requirements of Code Section 401(a)(4);
o The Qualified Matching Contributions which are treated as
Elective Contributions for purposes of the Deferral
Percentage Test are not taken into account in determining
whether any Employee After-tax Contributions or other
Matching Contributions satisfy the Contribution Percentage
Test;
o Any Matching Contributions which are not treated as
Elective Contributions for purposes of the Deferral
Percentage Test satisfy the requirements of Code Section
401(m); and
o The plan which includes the Cash or Deferred Arrangement
and the plan or plans to which the Qualified Nonelective
Contributions and Qualified Matching Contributions are made
could be aggregated for purposes of Code Section 410(b).
(i) Treatment as Matching Contributions
The Plan Administrator may, in its discretion, treat all or any
portion of Qualified Nonelective Contributions or Elective
Contributions or both, whether to this Plan or to any other qualified
plan which has the same Plan Year and is maintained by the Employer
or a Related Employer, as Matching Contributions for purposes of
satisfying the Contribution Percentage Test if they meet all of the
following requirements:
o All Nonelective Contributions, including the Qualified
Nonelective Contributions treated as Matching Contributions
for purposes of the Contribution Percentage Test, satisfy
the requirements of Code Section 401(a)(4);
o Any Nonelective Contributions which are not treated as
Elective Contributions for purposes of the Deferral
Percentage Test or as Matching Contributions for purposes
of the Contribution Percentage Test satisfy the
requirements of Code Section 401(a)(4);
o The Elective Contributions which are treated as Matching
Contributions for purposes of the Contribution Percentage
Test are not taken into account in determining
4-12
<PAGE> 42
whether any other Elective Contributions satisfy the
Deferral Percentage Test;
o The Qualified Nonelective Contributions and Elective
Contributions which are treated as Matching Contributions
for purposes of the Contribution Percentage Test are not
taken into account in determining whether any other
contributions or benefits satisfy Code Section 401(a); and
o All Elective Contributions, including those treated as
Matching Contributions for purposes of the Contribution
Percentage Test, satisfy the requirements of Code Section
401(k)(3); and
o The plan that takes Qualified Nonelective Contributions and
Elective Contributions into account in determining whether
Employee After-tax and Matching Contributions satisfy the
requirements of Code Section 401(m)(2)(A) and the plan or
plans to which the Qualified Nonelective Contributions and
Elective Contributions are made could be aggregated for
purposes of Code Section 410(b).
(j) Aggregation of Plans
If the Employer or a Related Employer sponsors one or more other
plans which include a Cash or Deferred Arrangement, the Employer may
elect to treat any two or more of such plans as an aggregated single
plan for purposes of satisfying Code Sections 401(a)(4), 401(k) and
410(b). The Cash of Deferred Arrangements included in such aggregated
plans will be treated as a single Arrangement for purposes of this
Section. However, only those plans that have the same plan year may
be so aggregated.
If the Employer or a Related Employer sponsors one or more other
plans to which Employee After-tax Contributions or Matching
Contributions are made, the Employer may elect to treat any two or
more of such plans as an aggregated single plan for purposes of
satisfying Code Sections 401(a)(4), 401(m) and 410(b). However, only
those plans that have the same plan year may be so aggregated.
Any such aggregation must be made in accordance with Treasury
Regulation 1.401(k)-1(b)(3). For example, contributions and
allocations under the portion of a plan described in Code Section
4975(e)(7) (an ESOP) may not be aggregated with the portion of a plan
not described in Code Section 4975(e)(7) (a non-ESOP) for purposes of
determining whether the ESOP or non-ESOP satisfies the requirements
of Code Sections 401(a)(4), 401(k), 401(m) and 410(b).
Plans that could be aggregated under Code Section 410(b) but that are
not actually aggregated for a Plan Year for purposes of Code Section
410(b) may not be aggregated for purposes of Code Sections 401(k) and
401(m).
4-13
<PAGE> 43
ARTICLE 5
RETIREMENT BENEFITS
5.01 Valuation of Accounts
For purposes of this Article, the value of a Participant's Accrued Benefit
will be determined as of the Valuation Date immediately preceding the date
that benefits are to be distributed.
5.02 Normal Retirement
After an Active Participant reaches his Normal Retirement Date, he may
elect to retire. Upon such retirement he will become a Retired Participant
and his Accrued Benefit will become distributable to him. A Participant's
Accrued Benefit will become nonforfeitable no later than the date upon
which he attains his Normal Retirement Age. The form and timing of benefit
payment will be governed by the provisions of Section 5.05.
5.03 Disability Retirement
In the event of a Participant's termination due to Disability, he will be
entitled to begin to receive a distribution of his Accrued Benefit which
will become nonforfeitable as of his date of termination. The form of
benefit payment will be governed by the provisions of Section 5.05.
Disability shall mean a Participant's total and permanent disability as a
result of a disease or bodily injury which renders the Participant
incapable of engaging in substantial gainful activity, and as a result of
such disability he is qualified for and is receiving either (a) disability
benefits under the Social Security Act or (b) payments (other than
Worker's Compensation or Health Care Benefits) payable directly or
indirectly by the Employer or its' insurer as a result of the
Participant's sickness or injury under any long term disability program
maintained by the Employer.
5.04 Termination of Employment
(a) In General
If a Participant's employment terminates for any reason other than
retirement, death, or disability, his Accrued Benefit will become
distributable to him as of the last day of the month which coincides
with or next follows the last date upon which any contributions on
the Participant's behalf are made to the Trust following the
Participant's date of termination of employment (or as of such
earlier date as determined by the Plan Administrator in a uniform and
nondiscriminatory manner). The form and timing of benefit payment
will be governed by the provisions of Section 5.05.
(b) Cash-Out Distribution
If a Participant terminates employment and receives a distribution
equal to the Vested Percentage of his Company Matching Account, a
Cash-Out Distribution will be deemed to have occurred if the
following conditions are met:
(1) The Participant was less than 100% vested in his Company
Matching Account; and
(2) The entire distribution is made before the last day of the
second Plan Year following the Plan Year in which the
Participant terminated employment.
(c) Restoration of Company Matching Account
If, following the date of a Cash-Out Distribution, a Participant
returns to an Eligible Employee Classification prior to incurring 5
consecutive One Year Breaks-in-Service, then
5-1
<PAGE> 44
the Participant will have the right to repay to the Trustee, within 5
years after his return date, the portion of the Cash-Out Distribution
which was attributable to his Company Matching Account in order to
restore such Account to its value as of the date of the Cash-Out
Distribution.
The Plan Administrator will restore an eligible Participant's Company
Matching Account as of the Accounting Date coincident with or
immediately following the complete repayment of the Cash-Out
Distribution. To restore the Participant's Company Matching Account,
the Plan Administrator, to the extent necessary, will, under rules
and guidelines applied in a uniform and nondiscriminatory manner,
first allocate to the Participant's Company Matching Account the
amount, if any, of Forfeitures which would otherwise be allocated
under Article 3. To the extent such forfeitures for a particular
Accounting Period are insufficient to enable the Plan Administrator
to make the required restoration, the Employer will contribute such
additional amount as is necessary to enable the Plan Administrator to
make the required restoration. The Plan Administrator will not take
into account the allocation under this Section in applying the
limitation on allocations under Article 7.
(d) Non-Vested Participant
If a Participant who is zero percent vested in his Company Matching
Account terminates employment, a Cash-Out Distribution will be deemed
to have occurred as of the Participant's date of termination of
employment.
If the Participant subsequently returns to an Eligible Employee
Classification prior to incurring five consecutive One Year
Breaks-in-Service, then the Participant will immediately become
entitled to a complete restoration of his Company Matching Account as
of the Accounting Date coincident with or next following his date of
re-employment. Such restoration will be made in accordance with the
provisions of Section 5.04(c).
5.05 Form of Benefit Payment
Subject to the provisions of Section 5.06, the Plan Administrator will
direct the Trustee to make the payment of any benefit provided under this
Plan upon the event giving rise to such benefit within 60 days following
the receipt of a Participant's written request for the payment of benefits
on a form provided by the Plan Administrator. The Plan Administrator may
temporarily suspend such processing in the event of unusual or
extraordinary circumstances such as the conversion of Plan records from
one recordkeeper to another.
The form of benefit will be determined as follows:
(a) a Participant who is not married on the date benefits are to commence
will be provided a Qualified Life Annuity, unless a lump sum payment
is elected, under a Qualified Election, by the Participant within the
90-day period which ends on his benefit commencement date.
(b) a Participant who is married on the date benefits commence will be
provided a Qualified Joint and Survivor Annuity unless a lump sum
payment is elected, under a Qualified Election, by the Participant
within the 90-day period which ends on his benefit commencement date.
Within the 90-day period which ends on a married Participant's expected
benefit commencement date, the Plan Administrator will provide each
Participant with a written explanation of:
(a) the terms and conditions of a Qualified Joint and Survivor Annuity;
(b) the Participant's right to make and the effect of a Qualified
Election to waive the
5-2
<PAGE> 45
Qualified Joint and Survivor Annuity form of benefit;
(c) the rights of a Participant's spouse; and
(d) the right to make, and the effect of, a revocation of a previous
Qualified Election to waive the Qualified Joint and Survivor Annuity.
Notwithstanding the above, if a terminated Participant's Vested Accrued
Benefit is $3,500 or less, such Participant's Vested Accrued Benefit shall
be payable in a lump sum of the entire amount of his Vested Accrued
Benefit. If the value of his Vested Accrued Benefit at the time of any
distribution exceeds $3,500, the value of his Vested Accrued Benefit at
any later time will be deemed to also exceed $3,500.
Upon request, the Participant may receive his benefit paid in a series of
substantially equal annual or more frequent installments over a period
certain not extending beyond the earliest of (a) the end of the period
measured by the joint life and last survivor expectancy of the Participant
and his spouse, or (b) twenty (20) years. The Plan Administrator and the
Trustee will have the power to establish rules and guidelines as deemed
necessary or appropriate with regard to the payment of benefits under the
installment payment form.
5.06 Commencement of Benefit
Subject to the provisions of this Article, commencement of a benefit will,
unless the Participant elects otherwise in writing, begin not later than
the 60th day after the later of the close of the Plan Year in which the
Participant attains Normal Retirement Age or the close of the Plan Year
which contains the date the Participant terminates his service with the
Employer.
Payment of a Participant's benefits must begin no later than his Required
Beginning Date.
All distributions required under this Section will be determined and made
in accordance with the regulations issued under Code Section 401(a)(9),
including those dealing with minimum distribution requirements.
Notwithstanding the provisions of Section 5.05, an Active Participant who
has reached his Required Beginning Date will receive an annual
distribution of his Accrued Benefit equal to the minimun required
distribution determined under Code Section 401(a)(9).
For purposes of this Section, life expectancy and joint and last survivor
expectancy are to be computed by the use of the return multiples contained
in Section 1.72-9 of the Income Tax Regulations.
If the Participant dies after distribution of his interest has begun, the
remaining portion of the interest will continue to be distributed at least
as rapidly as under the method of distribution being used before the
Participant's death.
5.07 Directed Transfer of Eligible Rollover Distributions
(a) General
This Section applies to distributions made on or after January 1,
1993. Notwithstanding any provision of the Plan to the contrary that
would otherwise limit a Distributee's election under this Section, a
Distributee may elect, at the time and in the manner prescribed by
the Plan Administrator, to have any portion of an Eligible Rollover
Distribution paid directly to an Eligible Retirement Plan specified
by the Distributee in a Direct Rollover.
5-3
<PAGE> 46
(b) Eligible Rollover Distribution
An Eligible Rollover Distribution is any distribution of all or any
portion of the balance to the credit of the Distributee, except that
an Eligible Rollover Distribution does not include: any distribution
that is one of a series of substantially equal periodic payments (not
less frequently than annually) made for the life (or life expectancy)
of the Distributee or the joint lives (or joint life expectancies) of
the Distributee and the Distributee's designated beneficiary, or for
a specified period of ten years or more; any distribution to the
extent such distribution is required under section 401(a)(9) of the
Code; and the portion of any distribution that is not includible in
gross income (determined without regard to the exclusion for net
unrealized appreciation with respect to employer securities).
(c) Eligible Retirement Plan
An Eligible Retirement Plan is an individual retirement account
described in section 408(a) of the Code, an individual retirement
annuity described in section 408(b) of the Code, or a qualified trust
described in section 401(a) of the Code, that accepts the
Distributee's Eligible Rollover Distribution. However, in the case of
an Eligible Rollover Distribution to the surviving spouse, an
Eligible Retirement Plan is an individual retirement account or
individual retirement annuity.
(d) Distributee
A Distributee includes an Employee or Former Employee. In addition,
the Employee's or Former Employee's surviving spouse and the
Employee's or Former Employee's spouse or former spouse who is the
alternate payee under a qualified domestic relations order, as
defined in section 414(p) of the Code, are Distributees with regard
to the interest of the spouse or former spouse.
(e) Direct Rollover
A Direct Rollover is a payment by the Plan to the Eligible Retirement
Plan specified by the Distributee.
(f) Waiver of 30-Day Notice
If a distribution is one to which Code Sections 401(a)(11) and 417 do
not apply, such distribution may commence less than 30 days after the
notice required under Section 1.411(a)-11(c) of the Income Tax
Regulations is given, provided that:
o the Plan Administrator clearly informs the Participant that
the Participant has a right to a period of at least 30 days
after receiving the notice to consider the decision of
whether or not to elect a distribution (and, if applicable,
a particular distribution option); and
o the Participant, after receiving the notice, affirmatively
elects to receive a distribution.
5.08 Indefinite Layoff
If a full time permanent Employee who is a Participant is indefinitely
laid off due to a lack of work or economic or industrial reasons, his
vested percentage shall be one hundred percent (100%).
Prior to July 1, 1994, if such a Particpant does not receive a
distribution of any part of his Accounts under the Plan until after the
end of the Plan year in which his layoff occurred, he shall be entitled to
share in the allocation of Forfeitures on the last day of the Plan Year
during which such layoff occurred as if:
5-4
<PAGE> 47
(a) he had completed at least 1,000 Hours of Service during such
Plan Year; and
(b) he was an active Participant on the last day of such Plan Year.
After July 1, 1994, Participant's who are indefinitely laid off will not
share in the allocation of Forfeitures on the last day of the Plan Year
during which such layoff occurs.
5-5
<PAGE> 48
ARTICLE 6
DEATH BENEFIT
6.01 Valuation of Accounts
For purposes of this Article, the value of a Participant's Accrued Benefit
will be determined as of the Valuation Date immediately preceding the date
that benefits are to be distributed.
6.02 Death Benefit
(a) Pre-Retirement Death Benefit
In the event of the death of a Participant prior to the date that he
begins to receive a retirement benefit under the Plan, if the
Participant has a Surviving Spouse and if a Beneficiary other than
the Participant's Surviving Spouse has not been designated pursuant
to a Qualified Election, the Participant's Surviving Spouse will be
entitled to receive a Qualified Survivor Annuity.
If a Surviving Spouse does not exist or if a Beneficiary other than
the Participant's Surviving Spouse has been designated pursuant to a
Qualified Election, the Participant's designated Beneficiary will be
entitled to receive the value of the Participant's Accrued Benefit.
(b) Post-Retirement Death Benefit
In the event of the death of a Retired Participant or a Disabled
Participant receiving a benefit, a benefit will be paid to the
Participant's Beneficiary or Surviving Spouse in accordance with the
form of benefit payment elected under the Plan.
6.03 Designation of Beneficiary
Each Participant will be given the opportunity to designate a Beneficiary
or Beneficiaries, and from time to time the Participant may file with the
Plan Administrator a new or revised designation on the form provided by
the Plan Administrator. If a Participant is married, any designation of a
Beneficiary other than the Participant's spouse must be consented to by
the Participant's spouse pursuant to a Qualified Election.
If a Participant dies without designating a Beneficiary, or if the
Participant is predeceased by all designated Beneficiaries and contingent
Beneficiaries, the Plan Administrator will distribute all benefits which
are payable in the event of the Participant's death in the following
manner and to the first of the following (who are listed in order of
priority) who survive the Participant by at least 30 days:
o All to the Participant's Surviving Spouse;
o Equally among the then living children of the Participant (by
birth or adoption);
o Among the Participant's then living lineal descendants, by right
of representation; or
o The Participant's estate.
6-1
<PAGE> 49
ARTICLE 7
LIMITATIONS ON BENEFITS
7.01 Limitation on Annual Additions
The amount of the Annual Addition which may be allocated under this Plan
to any Participant's Account as of any Allocation Date will not exceed the
Defined Contribution Limit (based upon his Aggregate Compensation up to
such Valuation Date) reduced by the sum of any allocations of annual
additions made to Participant's Accounts under this Plan as of any
preceding Allocation Date within the Limitation Year.
If the Annual Addition under this Plan on behalf of a Participant is to be
reduced as of any Allocation Date as a result of the next preceding
paragraph, the reduction will be, to the extent required, effected by
first reducing Participant contributions (which increase the annual
addition), then Forfeitures (if any), and then Employer contributions to
be allocated under this Plan on behalf of the Participant as of the
Allocation Date.
Any necessary reduction will be made as follows:
(a) The amount of the reduction consisting of nondeductible Participant
contributions will be paid to the Participant as soon as
administratively feasible.
(b) The amount of the reduction consisting of any other Participant
contributions will be paid to the Participant as soon as
administratively feasible.
(c) The amount of the reduction consisting of Forfeitures will be
allocated and reallocated to other Accounts in accordance with the
Plan formula for allocating Forfeitures to the extent that such
allocations do not cause the additions to any other Participant's
Accounts to exceed the lesser of the Defined Contribution Limit or
any other limitation provided in the Plan.
(d) The amount of the reduction consisting of Employer contributions will
be allocated and reallocated to other Accounts in accordance with the
Plan formula for Employer Contributions to the extent that such
allocations do not cause the additions to any other Participant's
Accounts to exceed the lesser of the Defined Contribution Limit or
any other limitation provided in the Plan.
(e) To the extent that the reductions described in paragraph (d) cannot
be allocated to other Participant's Accounts, the reductions will be
allocated to a suspense account as Forfeitures and held therein until
the next succeeding Allocation Date on which Forfeitures could be
applied under the provisions of the Plan. All amounts held in a
suspense account must be applied as Forfeitures before any additional
contributions, which would constitute annual additions, may be made
to the Plan. If the Plan terminates, the suspense account will revert
to the Employer to the extent it may not be allocated to any
Participant's Accounts.
(f) If a suspense account is in existence at any time during a Limitation
Year pursuant to this Section, it will not participate in the
allocation of the Trust Fund's investment gains and losses.
7-1
<PAGE> 50
7.02 Where Employer Maintains Another Qualified Plan
(a) Where Employer Maintains Another Qualified Defined Contribution Plan
If the Employer maintains this Plan and one or more other qualified
defined contribution plans, one or more welfare benefit funds (as
defined in Code Section 419(e)), or one or more individual medical
accounts (as defined in Code Section 415(l)(2)), all of which are
referred to in this Article 7 as "qualified defined contribution
plans", the annual additions allocated under this Plan to any
Participant's Accounts will be limited in accordance with the
allocation provisions of this Section 7.02(a).
The amount of the Annual Additions which may be allocated under this
Plan to any Participant's Accounts as of any Allocation Date will not
exceed the Defined Contribution Limit (based upon Aggregate
Compensation up to the allocation date) reduced by the sum of any
allocations of Annual Additions made to the Participant's Accounts
under this Plan and any other qualified defined contribution plans
maintained by the Employer as of any earlier Allocation Date within
the Limitation Year.
If a Allocation Date of this Plan coincides with a Allocation Date of
any other plan described in the above paragraph, the amount of Annual
Additions to be allocated on behalf of a Participant under this Plan
as of such date will be an amount equal to the product of the amount
described in the next preceding paragraph multiplied by a fraction
(not to exceed 1.0), the numerator of which is the amount to be
allocated under this Plan without regard to this Article during the
Limitation Year and the denominator of which is the amount that would
otherwise be allocated on this Allocation Date under all plans
without regard to this Article 7.
If the Annual Addition under this Plan on behalf of a Participant is
to be reduced as of any Allocation Date as a result of the next
preceding two paragraphs, the reduction will be, to the extent
required, effected by first reducing Participant contributions (which
increase the annual addition), then Forfeitures (if any), and then
any Employer contributions, to be allocated under this Plan on behalf
of the Participant as of the Allocation Date.
If as a result of the first four paragraphs of this Section 7.02 the
allocation of additions is reduced, the reduction will be treated in
the manner described in the third paragraph of Section 7.01.
(b) Where Employer Maintains a Qualified Defined Benefit Plan
(1) In General
If the Employer maintains (or has ever maintained), in addition
to this Plan, one or more qualified defined benefit plans, then
for any Limitation Year, the sum of the Defined Benefit Plan
Fraction and the Defined Contribution Plan Fraction will not
exceed 1.0. If, in any Limitation Year, the sum of the Defined
Benefit Plan Fraction and the Defined Contribution Plan Fraction
for a Participant would exceed 1.0 without adjustment to the
amount of the annual benefit that can be paid to the Participant
under the defined benefit plan, then the amount of annual
benefit that would otherwise be paid to the Participant under
the defined benefit plan will be reduced to the extent necessary
to reduce the sum of the Defined Benefit Plan Fraction and the
Defined Contribution Plan Fraction for the Participant to 1.0.
(2) Transition Rule under TRA '86
If a plan was in existence on May 6, 1986, the numerator of the
Defined Contribution Plan Fraction will be reduced (to not less
than zero) as prescribed by the Secretary
7-2
<PAGE> 51
of the Treasury by subtracting the amount required to decrease
the sum of the Defined Contribution Plan Fraction plus the
Defined Benefit Plan Fraction to 1.0. Such amount is determined
(as of the first day of the first Limitation Year beginning on
or after January 1, 1987) as the product of:
(A) The amount by which, without this adjustment, the sum of
the Defined Contribution Plan Fraction plus the Defined
Benefit Plan Fraction exceeds 1.0, multiplied by
(B) The denominator of the Defined Contribution Plan Fraction,
as computed through the last Limitation Year beginning
before January 1, 1987, disregarding any changes in the
terms and conditions of the plan after May 5, 1986.
This subparagraph applies only if the defined benefit plans
individually and in the aggregate satisfied the requirements of
Code Section 415 for all Limitation Years beginning before
January 1, 1987.
(3) Transition Rule under TEFRA
In the case of a plan which met the limitation of Section 415 of
the Code for the last Limitation Year beginning before January
1, 1983, the numerator of the Defined Contribution Plan Fraction
will be reduced (to not less than zero) as prescribed by the
Secretary of the Treasury by subtracting the amount required to
decrease the sum of the Defined Contribution Plan Fraction plus
the Defined Benefit Plan Fraction to 1.0. Such amount is
determined (as of the first day of the first Limitation Year
beginning on or after January 1, 1983) as the product of:
(A) The amount by which, without this adjustment, the sum of
the Defined Contribution Plan Fraction plus the Defined
Benefit Plan Fraction exceeds 1.0, multiplied by
(B) The denominator of the Defined Contribution Plan Fraction,
as computed through the last Limitation Year beginning
before January 1, 1983.
7.03 Definitions Applicable to Article 7
(a) Aggregate Compensation
Aggregate Compensation means a Participant's earned income, wages,
salaries, and fees for professional services, and other amounts
received for personal services actually rendered in the course of
employment with the employer maintaining the plan (including, but not
limited to, commissions paid to salesmen, compensation for services
on the basis of a percentage of profits, commissions on insurance
premiums, tips and bonuses), and excluding the following:
o Employer contributions to a plan of deferred compensation
which are not included in the employee's gross income for
the taxable year in which contributed or employer
contributions under a simplified employee pension plan to
the extent the contributions are deductible by the
employee, or any distributions from a plan of deferred
compensation;
o Amounts realized from the exercise of a nonqualified stock
option, or when restricted stock (or property) held by the
employee either becomes freely transferable or is no longer
subject to a substantial risk of forfeiture;
o Amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified stock
option; and
7-3
<PAGE> 52
o Other amounts which received special tax benefits, or
contributions made by the employer (whether or not under a
salary reduction agreement) toward the purchase of an
annuity described in Code Section 403(b) (whether or not
the amounts are actually excludable from the gross income
of the employee).
Aggregate Compensation excludes any amounts contributed by the
Employer or any Related Employer on behalf of any Employee pursuant
to a salary reduction agreement which are not includable in the gross
income of the Employee due to Code Section 125, 402(e)(3), 402(h) or
403(b).
Aggregate Compensation in excess of the Statutory Compensation Limit
is disregarded.
Aggregate Compensation for any Limitation Year is the Aggregate
Compensation actually paid or includable in gross income in such
year.
(b) Allocation Date
Allocation Date means the date with respect to which all or a portion
of employer contributions, employee contributions or forfeitures or
both are allocated to participant accounts under a defined
contribution plan.
(c) Annual Additions
For Plan Years beginning after December 31, 1986, Annual Additions
are the sum of the following amounts allocated to any defined
contribution plan maintained by the Employer (including voluntary
contributions to any defined benefit plan maintained by the Employer)
on behalf of a Participant for a Limitation Year:
o All Employee and Employer contributions;
o All reallocated forfeitures;
o Amounts allocated after March 31, 1984, to an individual
medical account, as defined in Code Section 415(l)(2) which
is part of a pension or annuity plan maintained by the
Employer, and amounts derived from contributions paid or
accrued after December 31, 1985, in taxable years ending
after that date, which are attributable to post-retirement
medical benefits required by Code Section 401(h)(6) to be
allocated to the separate account of a Key Employee under a
welfare benefit plan (as defined in Code Section 419(e))
maintained by the Employer.
Contributions or forfeitures will be treated as Annual Additions
regardless of whether they constitute Excess Deferrals, Excess
Contributions or Excess Aggregate Contributions within the meaning of
the regulations under Code Section 401(k) or 401(m) and regardless of
whether they are corrected through distribution or
recharacterization. Excess deferrals distributed in accordance with
Treasury Regulation 1.402(g)-1(e)(2) or (3) are not Annual Additions.
The Annual Addition for any Limitation Year beginning before January
1, 1987, will not be recomputed to treat all Employee After-tax
Contributions as Annual Additions.
(d) Annual Benefit
Annual Benefit means a benefit payable annually in the form of a
straight life annuity (with no ancillary benefits) under a plan to
which employees do not contribute and under which no rollover
contributions are made.
7-4
<PAGE> 53
(e) Defined Benefit Compensation Limit
The Defined Benefit Compensation Limit is equal to 100% of the
Participant's average Aggregate Compensation for the three
consecutive calendar years (or other twelve consecutive month periods
adopted by the Employer pursuant to a Written Resolution and applied
on a uniform and consistent basis) of service during which the
Participant had the greatest Aggregate Compensation.
Where the annual benefit is payable to a Participant in a form other
than a straight life annuity or a Qualified Joint and Survivor
Annuity, the Defined Benefit Compensation Limit will be the Actuarial
Equivalent of a straight life annuity beginning at the same age. No
adjustment is required for the following: pre-retirement disability
benefits, pre-retirement death benefits and post-retirement medical
benefits. For purposes of this paragraph, the interest rate used in
adjusting the Defined Benefit Compensation Limit will be the greater
of (1) 5%, or (2) the post-retirement interest rate specified in the
plan for Actuarial Equivalent purposes.
Where the annual benefit is payable to a Participant who has fewer
than 10 years of service with the Employer or any Related or
Predecessor Employer, the Defined Benefit Compensation Limit will be
multiplied by a fraction, the numerator of which is the Participant's
number of years of service with the Employer or Related or
Predecessor Employer, and the denominator of which is 10.
With regard to a Participant who has separated from service with a
nonforfeitable right to an Accrued Benefit, the Defined Benefit
Compensation Limit will be adjusted effective January 1 of each
Calendar year. For any Limitation Year beginning after the separation
occurs, the Defined Benefit Compensation Limit will be equal to the
Defined Benefit Compensation Limit which was applicable to the
Participant in the Limitation Year in which he separated from service
multiplied by a fraction, the numerator of which is the Defined
Benefit Dollar Limit for the Limitation Year in which the Defined
Benefit Compensation Limit is being adjusted and the denominator of
which is the Defined Benefit Dollar Limit for the Limitation Year in
which the Participant separated from service.
(f) Defined Benefit Dollar Limit
The Defined Benefit Dollar Limit is equal to $90,000 for calendar
years 1984 through 1987. As of January 1, 1988 and as of January 1 of
each subsequent calendar year, the dollar limitation (described in
Code Section 415(b)(1)(A)) as determined by the Secretary of the
Treasury for that calendar year will become effective as the Defined
Benefit Dollar Limit for the calendar year. For calendar years
between 1976 and 1983, the Defined Benefit Dollar Limit is $75,000 as
adjusted by the Secretary of the Treasury under Code Section 415(d)
for that calendar year. The Defined Benefit Dollar Limit for a
calendar year applies to Limitation Years ending with or within that
calendar year.
Where the annual benefit is payable to a Participant in a form other
than a straight life annuity or a Qualified Joint and Survivor
Annuity, the Defined Benefit Dollar Limit will be the Actuarial
Equivalent of a straight life annuity beginning at the same age. No
adjustment is required for the following: pre-retirement disability
benefits, pre-retirement death benefits, and post-retirement medical
benefits. For purposes of this paragraph, the interest rate used for
adjusting the Defined Benefit Dollar Limit will be the greater of (1)
5%, or (2) the post-retirement interest rate specified for Actuarial
Equivalent purposes.
Where the annual benefit is payable to a Participant who has fewer
than 10 years of participation in the Plan, the Defined Benefit
Dollar Limit will be multiplied by a fraction, the numerator of which
is the Participant's number of years (or part thereof) of
7-5
<PAGE> 54
participation in the Plan, and the denominator of which is 10. To the
extent provided by the Secretary of the Treasury, this paragraph will
be applied to each change in the benefit structure of the Plan.
For a benefit commencing before a Participant's Social Security
Retirement Age but at or after age 62, the Defined Benefit Dollar
Limit will be adjusted in a manner which is consistent with the
reduction for old-age insurance benefits commencing before Social
Security Retirement Age under the Social Security Act. The reduction
will be 5/9 of 1% for each of the first 36 months and 5/12 of 1% for
each additional month (up to 24 months) by which benefits commence
before the month of the Participant's Social Security Retirement Age.
The Defined Benefit Dollar Limit for a benefit commencing before age
62 will be adjusted to the Actuarial Equivalent of the Defined
Benefit Dollar Limit for a benefit commencing at age 62 based on an
interest rate equal to the greater of (1) 5%, or (2) the interest
rate specified in the plan for determining actuarial equivalence for
early retirement.
For a benefit commencing after a Participant's Social Security
Retirement Age, the Defined Benefit Dollar Limit will be adjusted to
the actuarial equivalent of the Defined Benefit Dollar Limit for a
benefit commencing at the Participant's Social Security Retirement
Age. For purposes of this paragraph, the interest rate used for
adjusting the Defined Benefit Dollar Limit will be the lesser of (1)
5%, or (2) the interest rate specified in the plan for determining
actuarial equivalence for early retirement.
(g) Defined Benefit Limit
The Defined Benefit Limit is the lesser of the Defined Benefit Dollar
Limit or the Defined Benefit Compensation Limit.
(h) Defined Benefit Plan Fraction Denominator
The Defined Benefit Plan Fraction Denominator with respect to any
Participant is the lesser of (1) the product of the Defined Benefit
Dollar Limit multiplied by 1.25, or (2) the product of the Defined
Benefit Compensation Limit multiplied by 1.4. However, for purposes
of determining the Defined Benefit Plan Fraction Denominator, "years
of service with the Employer or any Related or Predecessor Employer"
will be substituted for "years of participation in the Plan" wherever
it appears in Section 7.03(f).
(i) Defined Benefit Plan Fraction
The Defined Benefit Plan Fraction is a fraction determined as of the
close of a Limitation Year, the numerator of which is the Projected
Annual Benefit payable to a Participant under this Plan and the
denominator of which is the Defined Benefit Fraction Denominator. If
a Participant has participated in more than one defined benefit plan
maintained by the Employer, the numerator of the Defined Benefit Plan
Fraction is the sum of the projected annual benefits payable to the
Participant under all of the defined benefit plans, whether or not
terminated.
(j) Defined Contribution Limit
The Defined Contribution Limit for a given Limitation Year is equal
to the lesser of (1) the Defined Contribution Compensation Limit,
which is 25% of Aggregate Compensation applicable to the Limitation
Year, or (2) the Defined Contribution Dollar Limit, which, for
calendar years after 1983 is the greater of $30,000 or one-fourth of
the Defined Benefit Dollar Limit for the Limitation Year, and for
calendar years between 1976 and 1983 is one-third of the Defined
Benefit Dollar Limit. If a short Limitation Year is created because
of an amendment changing the Limitation Year to a different 12
consecutive month period, the Defined Contribution Dollar Limit is
multiplied by a fraction, the numerator of which is equal to the
number of months in the short Limitation Year and the denominator
7-6
<PAGE> 55
of which is 12.
(k) Defined Contribution Plan Fraction
The Defined Contribution Plan Fraction is a fraction determined as of
the close of a Limitation Year, the numerator of which is the sum of
the Annual Additions to the Participant's Accounts under all defined
contribution plans of the Employer for the current and all prior
Limitation Years and the denominator of which is the sum of the
Annual Additions which would have been made for the Participant for
the current and all prior Limitation Years (for all prior years of
service with the Employer or any predecessor Employer) if in each
Limitation year the Annual Additions equaled the lesser of (1) the
product of the Defined Contribution Compensation Limit for the
Limitation Year multiplied by 1.4, or (2) the product of the Defined
Contribution Dollar Limit for the Limitation Year multiplied by 1.25.
The aggregate amount in the numerator of this fraction due to years
beginning before January 1, 1976 may not exceed the aggregate amount
in the denominator of this fraction for all such years.
For purposes of this Section 7.03(k), the Annual Addition for any
Limitation Year beginning before January 1, 1987 will not be
recomputed to treat all Employee After-tax Contributions as Annual
Additions.
(l) Employer
The Employer is the Employer that adopts this Plan together with all
Related Employers. For this purpose, the definition of Related
Employer in Section 1.33 of this Plan is modified by Code Section
415(h).
(m) Limitation Year
The Limitation Year will be the 12 consecutive month period which is
specified in Article 1 of this Plan and which is adopted for all
qualified plans maintained by the Employer pursuant to a Written
Resolution adopted by the Employer. In the event of a change in the
Limitation Year, the additional limitations of Treasury Regulation
Section 1.415-2(b)(4)(iii) will also apply.
(n) Projected Annual Benefit
For purposes of this Section, a Participant's Projected Annual
Benefit is equal to the annual benefit to which a Participant in a
defined benefit Plan would be entitled under the terms of the plan
based on the following assumptions:
o The Participant will continue employment until reaching
normal retirement age as determined under the terms of the
plan (or current age, if that is later);
o The Participant's compensation for the Limitation Year
under consideration will remain the same for all future
years;
o All other relevant factors used to determine benefits under
the plan for the Limitation Year under consideration will
remain constant for all future Limitation Years; and
o The benefits resulting from any Participant Contributions
or Rollover Contributions are disregarded.
(o) Social Security Retirement Age
Social Security Retirement Age means age 65 for a Participant born
before January 1, 1938; age 66 for a Participant born after December
31, 1937, but before January 1, 1955; and age 67 for a Participant
born after December 31, 1954.
7-7
<PAGE> 56
(p) Transition Rule Under TRA '86
If at the beginning of the first Limitation Year beginning after
December 31, 1986, an Employee was a Participant in a defined benefit
plan of the Employer or any Related Employer that was in existence on
May 6, 1986, the Defined Benefit Dollar Limit for that Participant is
the greater of the Defined Benefit Dollar Limit described above or
the Participant's Current Accrued Benefit on that date determined
without regard to changes in the terms and conditions of the Plan or
cost-of-living increases occurring after May 5, 1986. This Section
7.03(p) applies only if all defined benefit plans maintained by the
Employer and all Related Employers, individually and in the
aggregate, satisfied the requirements of Code Section 415 for all
Limitation Years beginning before January 1, 1987.
(q) Transition Rule Under TEFRA
The Defined Benefit Dollar Limit for a Participant in a defined
benefit plan of the Employer or any Related Employer that was in
existence on July 1, 1982, will not be less than the protected
current accrued benefit, payable annually, provided under question
T-3 of Internal Revenue Service Notice 83-10.
7.04 Effect of Top-Heavy Status
(a) General
Notwithstanding the provisions of Section 7.03, "1.0" will be
substituted for "1.25" wherever it appears in Sections 7.03(h) and
7.03(k) for any Limitation Year in which the Plan is found to be
Top-Heavy for the Plan Year which coincides with or ends within such
Limitation Year.
(b) Non-application
If the Plan is not determined to be Super Top-Heavy, then for the
Plan Year which coincides with or ends within a Limitation Year, the
following will apply:
(1) Any Non-Key Employee who is a Participant in both this Plan and
a defined benefit plan maintained by the Employer or a Related
Employer will be entitled to a minimum accrued benefit under the
defined benefit plan equal to the greater of the accrued benefit
provided under the defined benefit plan or a monthly benefit in
the form of a straight life annuity (with no ancillary benefits)
commencing at normal retirement date equal to the Participant's
average monthly compensation (which means the average rate of
Aggregate Compensation during the five consecutive years, as
defined for purposes of determining average monthly
compensation, in which the Participant had the highest Aggregate
Compensation) multiplied by the lesser of (A) 3% for each year
of benefit service performed while actually participating in the
plan during a Plan Year in which the plan is determined to be
Top-Heavy, or (B) 30%.
A Participant will not be required to be employed on the last
day of a Plan Year in order to be entitled to the benefit
provided by this Section 7.04(b). The defined benefit plan may
not satisfy the requirements of this Section 7.04(b) through
Employer contributions to Social Security.
(2) Section 7.04(a) will not apply for such Limitation Year.
7-8
<PAGE> 57
ARTICLE 8
MISCELLANEOUS
8.01 Employment Rights of Parties Not Restricted
The adoption and maintenance of this Plan will not be deemed a contract
between the Employer and any Employee. Nothing in this Plan will give any
Employee or Participant the right to be retained in the employ of the
Employer or to interfere with the right of the Employer to discharge any
Employee or Participant at any time, nor will it give the Employer the
right to require any Employee or Participant to remain in its employ, or
to interfere with any Employee's or Participant's right to terminate his
employment at any time.
8.02 Alienation
(a) General
No person entitled to any benefit under this Plan will have any right
to sell, assign, transfer, hypothecate, encumber, commute, pledge,
anticipate or otherwise dispose of his interest in the benefit, and
any attempt to do so will be void. No benefit under this Plan will be
subject to any legal process, levy, execution, attachment or
garnishment for the payment of any claim against such person.
(b) Exceptions
Section 8.02(a) will not apply to the extent a Participant or
Beneficiary is indebted to the Plan under the provisions of the Plan.
At the time a distribution is to be made to or for a Participant's or
Beneficiary's benefit, the portion of the amount distributed which
equals the indebtedness will be withheld by the Trustee to apply
against or discharge the indebtedness. Before making a payment,
however, the Participant or Beneficiary must be given written notice
by the Plan Administrator that the indebtedness is to be so paid in
whole or part from his Participant's Accrued Benefit. If the
Participant or Beneficiary does not agree that the indebtedness is a
valid claim against his Vested Accrued Benefit, he will be entitled
to a review of the validity of the claim in accordance with
procedures established by the Plan Administrator.
Section 8.02(a) will not apply to a qualified domestic relations
order (QDRO) as defined in Code Section 414(p), and those other
domestic relations orders permitted to be so treated by the Plan
Administrator under the provisions of the Retirement Equity Act of
1984. The Plan Administrator will establish a written procedure to
determine the qualified status of domestic relations orders and to
administer distributions under such qualified orders. Further, to the
extent provided under a QDRO, a former spouse of a Participant will
be treated as the spouse or Surviving Spouse for all purposes under
the Plan. Where, however, because of a QDRO, more than one individual
is to be treated as a Surviving Spouse, the total amount to be paid
in the form of a Qualified Survivor Annuity or the survivor portion
of a Qualified Joint and Survivor Annuity may not exceed the amount
that would be paid if there were only one Surviving Spouse. All
rights and benefits, including elections, provided to a Participant
under this Plan will be subject to the rights afforded to any
alternate payee as such term is defined in Code Section 414(p).
This Plan specifically permits distribution to an alternate payee
under a QDRO (without regard to whether the Participant has attained
his or her earliest retirement age as that term is defined under Code
Section 414(p)) in the same manner that is provided for a Vested
Terminated Participant.
8-1
<PAGE> 58
8.03 Qualification of Plan
The Employer will have the sole responsibility for obtaining and retaining
qualification of the Plan under the Code with respect to the Employer's
individual circumstances.
8.04 Construction
To the extent not preempted by ERISA, this Plan will be construed
according to the laws of the state in which the Employer's principal place
of business is located. Words used in the singular will include the
plural, the masculine gender will include the feminine, and vice versa,
whenever appropriate.
8.05 Named Fiduciaries
(a) Allocation of Functions
The authority to control and manage the operation and administration
of the Plan and Trust created by this instrument will be allocated
between the Plan Sponsor, the Trustee, and the Plan Administrator,
all of whom are designated as Named Fiduciaries with respect to the
Plan and Trust as provided for by Section 402(a)(2) of ERISA. The
Plan Sponsor reserves the right to allocate the various
responsibilities for the present execution of the functions of the
Plan, other than the Trustee's responsibilities, among its Named
Fiduciaries. Any person or group of persons may serve in more than
one fiduciary capacity with regard to the Plan.
(b) Responsibilities of the Plan Sponsor
The Plan Sponsor, in its capacity as a Named Fiduciary, will have
only the following authority and responsibility:
o To appoint or remove the Plan Administrator and furnish the
Trustee with certified copies of any resolutions of the
Plan Sponsor with regard thereto;
o To appoint and remove the Trustee;
o To appoint a successor Trustee or additional Trustees;
o To communicate information to the Plan Administrator and
the Trustee as needed for the proper performance of the
duties of each;
o To appoint an investment manager (or to refrain from such
appointment), to monitor the performance of the investment
manager so appointed, and to terminate such appointment
(more than one investment manger may be appointed and in
office at any time); and
o To establish and communicate to the Trustee a funding
policy for the Plan.
(c) Limitation on Obligations of Named Fiduciaries
No Named Fiduciary will have authority or responsibility to deal with
matters other than as delegated to it under this Plan or by operation
of law. A Named Fiduciary will not in any event be liable for breach
of fiduciary responsibility or obligation by another fiduciary
(including Named Fiduciaries) if the responsibility or authority of
the act or omission deemed to be a breach was not within the scope of
the Named Fiduciary's authority or delegated responsibility.
(d) Standard of Care and Skill
The duties of each fiduciary will be performed with the care, skill,
prudence and diligence under the circumstances then prevailing that a
prudent person acting in a like capacity and familiar with such
matters would use in the conduct of an enterprise of like
8-2
<PAGE> 59
character and with like objectives.
8.06 Status of Insurer
The term Insurer refers to any legal reserve life insurance company
licensed to do business in the state within which the Employer maintains
its principal office. The Insurer will file such returns, keep such
records, make such reports and supply such information as required by
applicable law or regulation.
8.07 Adoption and Withdrawal by Other Organizations
(a) Procedure for Adoption
Subject to the provisions of this Section 8.07, any organization now
in existence or hereafter formed or acquired, which is not already a
Participating Employer under this Plan and which is otherwise legally
eligible may, in the future, with the consent and approval of the
Plan Sponsor, by formal Written Resolution (referred to in this
Section as an Adoption Resolution), adopt the Plan and Trust hereby
created for all or any classification of persons in its employment
and thereby, from and after the specified effective date, become a
Participating Employer under this Plan. Such consent will be effected
by and evidenced by a formal Written Resolution of the Plan Sponsor.
The Adoption Resolution may contain such specific changes and
variations in Plan terms and provisions applicable to the adopting
Participating Employer and its Employees as may be acceptable to the
Plan Sponsor and the Trustee. However, the sole, exclusive right of
any other amendment of whatever kind or extent to the Plan is
reserved to the Plan Sponsor. The Adoption Resolution will become, as
to the adopting organization and its Employees, a part of this Plan
as then amended or thereafter amended. It will not be necessary for
the adopting organization to sign or execute the original or then
amended Plan and Trust Agreement or any future amendment to the Plan
and Trust Agreement. The effective date of the Plan for the adopting
organization will be that stated in the Adoption Resolution and from
and after such effective date the adopting organization will assume
all the rights, obligations and liabilities as a Participating
Employer under this Plan. The administrative powers of and control by
the Plan Sponsor as provided in the Plan, including the sole right of
amendment or termination of the Plan, of appointment and removal of
the Plan Administrator and the Trustee, and of appointment and
removal of an investment manager will not be diminished by reason of
the participation of the adopting organization in the Plan.
(b) Withdrawal
Any Participating Employer may withdraw from the Plan at any time,
without affecting the Plan Sponsor or other Participating Employers
not withdrawing, by complying with the provisions of the Plan. A
withdrawing Participating Employer may arrange for the continuation
by itself or its successor of this Plan in separate forms for its own
employees, with such amendments, if any, as it may deem proper, and
may arrange for continuation of the Plan by merger with an existing
plan and transfer of plan assets. The Plan Sponsor may, it its
absolute discretion, terminate a Participating Employer's
participation at any time when in its judgment the Participating
Employer fails or refuses to discharge its obligations under the
Plan.
(c) Adoption Contingent Upon Initial and Continued Qualifications
The adoption of this Plan by an organization as provided is hereby
made contingent and subject to the condition precedent that said
adopting organization meets all the statutory requirements for
qualified plans, including, but not limited to, Sections 401(a) and
501(a) of the Internal Revenue Code for its Employees. If the Plan or
the Trust, in its operation, becomes disqualified, for any reason, as
to the adopting organization and its Employees, the portion of the
Plan assets allocable to them will be segregated as soon as
8-3
<PAGE> 60
is administratively feasible, pending either the prompt (1)
requalification of the Plan as to the organization and its employees
to the satisfaction of the Internal Revenue Service so as not to
affect the continued qualified status thereof as to other Employers,
(2) withdrawal of the organization from this Plan and a continuation
by itself or its successor of its plan separately from this Plan, or
by merger with another existing plan, with a transfer of its said
segregated portion of Plan assets, or (3) termination of the Plan as
to itself and its Employees.
8.08 Employer Contributions
Employer contributions made to the Plan and Trust are made and will be
held for the sole purpose of providing benefits to Participants and their
Beneficiaries.
In no event will any contribution made by the Employer to the Plan and
Trust or income therefrom revert to the Employer except as provided in
Section 7.01(e) or as provided below.
(a) Any contribution made to the Plan and Trust by the Employer because
of a mistake of fact may be returned to the Employer within one year
of such contribution.
(b) Notwithstanding any other provision of the Plan and Trust, if the
Internal Revenue Service determines initially that the Plan, as
adopted by the Employer, does not qualify under applicable sections
of the Code and applicable Treasury Department Regulations, and the
Employer does not wish to amend this Plan and Trust so that it does
qualify, the value of all assets will be distributed by the Trustee
to the Employer within one year after the date such initial
qualification is denied. Thereafter, the Employer's participation in
this Plan and Trust will be considered rescinded and of no force or
effect.
(c) Any contribution made by the Employer will be conditioned on the
deductibility of such contribution and may be refunded to the
Employer, to the extent the contribution is determined not to be
deductible, within one year after such determination is made.
8-4
<PAGE> 61
ARTICLE 9
ADMINISTRATION
9.01 Plan Administrator
The Plan Administrator will have the responsibility for the general
supervision and administration of the Plan and will be a fiduciary of the
Plan. The Employer may, by Written Resolution, appoint one or more
individuals to serve as Plan Administrator. If the Employer does not
appoint an individual or individuals as Plan Administrator, the Employer
will function as Plan Administrator. The Employer may at any time, with or
without cause, remove an individual as Plan Administrator or substitute
another individual therefor.
9.02 Powers and Duties of the Plan Administrator
The Plan Administrator will be charged with and will have delegated to it
the power, duty, authority and discretion to interpret and construe the
provisions of this Plan, to determine its meaning and intent and to make
application thereof to the facts of any individual case; to determine in
its discretion the rights and benefits of Participants or the eligibility
of Employees; to give necessary instructions and directions to the Trustee
and the Insurer as herein provided or as may be requested by the Trustee
and the Insurer from time to time; to resolve all questions of fact
relating to any of the foregoing; and to generally direct the
administration of the Plan according to its terms. All decisions of the
Plan Administrator in matters properly coming before it according to the
terms of this Plan, and all actions taken by the Plan Administrator in the
proper exercise of its administrative powers, duties and responsibilities,
will be final and binding upon all Employees, Participants and
Beneficiaries and upon any person having or claiming any rights or
interest in this Plan. The Employer and the Plan Administrator will make
and receive any reports and information, and retain any records necessary
or appropriate to the administration of this Plan or to the performance of
duties hereunder or to satisfy any requirements imposed by law. In the
performance of its duties, the Plan Administrator will be entitled to rely
on information duly furnished by any Employee, Participant or Beneficiary
or by the Employer or Trustee.
9.03 Actions of the Plan Administrator
The Plan Administrator may adopt such rules as it deems necessary,
desirable or appropriate with respect to the conduct of its affairs and
the administration of the Plan. Whenever any action to be taken in
accordance with the terms of the Plan requires the consent or approval of
the Plan Administrator, or whenever an interpretation is to be made of the
terms of the Plan, the Plan Administrator will act in a uniform and
non-discriminatory manner, treating all Employees and Participants in
similar circumstances in a like manner. If the Plan Administrator is a
group of individuals, all of its decisions will be made by a majority
vote. The Plan Administrator will have the authority to employ one or more
persons to render advice or services with regard to the responsibilities
of the Plan Administrator, including but not limited to attorneys,
actuaries, and accountants. Any persons employed to render advice or
services will have no fiduciary responsibility for any ministerial
functions performed with respect to this Plan.
9.04 Reliance on Plan Administrator and Employer
Until the Employer gives notice to the contrary, the Trustee and any
persons employed to render advice or services will be entitled to rely on
the designation of Plan Administrator that has been furnished to them. In
addition, the Trustee and any persons employed to render advice or
services will be fully protected in acting upon the written directions and
instructions of the Plan Administrator made in accordance with the terms
of this Plan. If the Plan Administrator is a group of individuals, unless
otherwise specified, any one of such individuals will be authorized to
sign documents on behalf of the Plan Administrator and such authorized
signatures will be recognized by all person dealing with the Plan
Administrator.
9-1
<PAGE> 62
The Trustee and any persons employed to render advice or services may take
cognizance of any rules established by the Plan Administrator and rely
upon them until notified to the contrary. The Trustee and any persons
employed to render advice or services will be fully protected in taking
any action upon any paper or document believed to be genuine and to have
been properly signed and presented by the Plan Administrator, Employer or
any agent of the Plan Administrator acting on behalf of the Plan
Administrator.
9.05 Reports to Participants
The Plan Administrator will report in writing to a Participant his Accrued
Benefit under the Plan and the Vested Percentage of such benefit when the
Participant terminates his employment or requests such a report in writing
from the Plan Administrator. To the extent required by law or regulation,
the Plan Administrator will annually furnish to each Participant, and to
each Beneficiary receiving benefits, a report which fairly summarizes the
Plan's most recent report.
9.06 Bond
The Plan Administrator and other fiduciaries of the Plan will be bonded to
the extent required by ERISA or other applicable law. No additional bond
or other security for the faithful performance of any duties under this
Plan will be required.
9.07 Compensation of Plan Administrator
The Compensation of the Plan Administrator will be left to the discretion
of the Plan Sponsor; no person who is receiving full pay from the Employer
will receive compensation for services as Plan Administrator. All
reasonable and necessary expenses incurred by the Plan Administrator in
supervising and administering the Plan will be paid from the Plan assets
by the Trustee at the direction of the Plan Administrator to the extent
not paid by the Plan Sponsor.
9.08 Claims Procedure
The Plan Administrator will make all determinations as to the rights of
any Employee, Participant, Beneficiary or other person under the terms of
this Plan. Any Employee, Participant or Beneficiary, or person claiming
under them, may make claim for benefit under this Plan by filing written
notice with the Plan Administrator setting forth the substance of the
claim. If a claim is wholly or partially denied, the claimant will have
the opportunity to appeal the denial upon filing with the Plan
Administrator a written request for review within 60 days after receipt of
notice of denial. In making an appeal the claimant may examine pertinent
Plan documents and may submit issues and comments in writing. Denial of a
claim or a decision on review will be made in writing by the Plan
Administrator delivered to the claimant within 60 days after receipt of
the claim or request for review, unless special circumstances require an
extension of time for processing the claim or review, in which event the
Plan Administrator's decision must be made as soon as possible thereafter
but not beyond an additional 60 days. If no action on an initial claim is
taken within 120 days, the claims will be deemed denied for purposes of
permitting the claimant to proceed to the review stage. The denial of a
claim or the decision on review will specify the reasons for the denial or
decision and will make reference to the pertinent Plan provisions upon
which the denial or decision is based. The denial of a claim will also
include a description of any additional material or information necessary
for the claimant to perfect the claim and an explanation of the claim
review procedure herein described. The Plan Administrator will serve as an
agent for service of legal process with respect to the Plan unless the
Employer, through written resolution, appoints another agent.
If a Participant or Beneficiary is entitled to a distribution from the
Plan, the Participant or Beneficiary will be responsible for providing the
Plan Administrator with his current address. If the Plan Administrator
notifies the Participant or Beneficiary by registered mail
9-2
<PAGE> 63
(return receipt requested) at his last known address that he is entitled
to a distribution and also notifies him of the provisions of this
paragraph, and the Participant or Beneficiary fails to claim his benefits
under the Plan or provide his current address to the Plan Administrator
within one year after such notification, the distributable amount will be
forfeited and used to reduce the cost of the Plan. If the Participant or
Beneficiary is subsequently located, such benefit will be restored.
9.09 Liability of Fiduciaries
Except for a breach of fiduciary responsibility due to gross negligence or
willful misconduct, the Plan Administrator will not incur any individual
liability for any decision, act, or failure to act hereunder. The Plan
Administrator may engage agents to assist it and may engage legal counsel
who may be counsel for the Employer. The Plan Administrator will not be
responsible for any action taken or omitted to be taken on the advice of
counsel.
If there is more than one person serving as a fiduciary in any capacity
(for example, co-Trustees), each will use reasonable care to prevent the
other or others from committing a breach of this Plan. Nothing contained
in this Section will preclude any agreement allocating specific
responsibilities or obligations among the co-fiduciaries provided that the
agreement does not violate any of the terms and provisions of this Plan.
In those instances where any duties have been allocated between
co-fiduciaries, a fiduciary will not be liable for any loss resulting to
the Plan arising from any act or omission on the part of another
co-fiduciary to whom responsibilities or obligations have been allocated
except under the following circumstances:
o If he participates knowingly in, or knowingly undertakes to
conceal, an act or omission of a co-fiduciary knowing the act or
omission is a breach; or
o If by his failure to comply with his specific responsibilities
which give rise to his status as a fiduciary, he has enabled the
other fiduciary to commit a breach; or
o If he has knowledge of a breach by a co-fiduciary, unless he
makes reasonable efforts under the circumstances to remedy the
breach.
9.10 Expenses of Administration
The Employer does not and will not guarantee the Plan assets against loss.
The Employer may in its sole discretion, but will not be obligated to, pay
the ordinary expenses of establishing the Plan, including the fees of
consultants, accountants and attorneys in connection therewith. The
Employer may, in its sole discretion (but will not be obligated to), pay
other costs and expenses of administering the Plan, the taxes imposed upon
the Plan, if any, and the fees, charges or commissions with respect to the
purchase and sale of Plan assets. Unless paid by the Employer, such costs
and expenses, taxes (if any), and fees, charges and commissions will be a
charge upon Plan assets and deducted by the Trustee.
9.11 Distribution Authority
If any person entitled to receive payment under this Plan is a minor,
declared incompetent or is under other legal disability, the Plan
Administrator may, in its sole discretion, direct the Trustee to:
o Distribute directly to the person entitled to the payment;
o Distribute to the legal guardian or, if none, to a parent of the
person entitled to payment or to a responsible adult with whom
the person entitled to payment maintains his residence;
9-3
<PAGE> 64
o Distribute to a custodian for the person entitled to payment
under the Uniform Gifts to Minors Act if permitted by the laws
of the state in which the person entitled to payment resides; or
o Withhold distribution of the amount payable until a court of
competent jurisdiction determines the rights of the parties
thereto or appoints a guardian of the estate of the person
entitled to payment.
If there is any dispute, controversy or disagreement between any
Beneficiary or person and any other person as to who is entitled to
receive the benefits payable under this Plan, or if the Plan Administrator
is uncertain as to who is entitled to receive benefits, or if the Plan
Administrator is unable to locate the person who is entitled to benefits,
the Plan Administrator may with acquittance interplead the funds into a
court of competent jurisdiction in the judicial district in which the
Employer maintains its principal place of business and, upon depositing
the funds with the clerk of the court, be released from any further
responsibility for the payment of the benefits. If it is necessary for the
Plan Administrator to retain legal counsel or incur any expense in
determining who is entitled to receive the benefits, whether or not it is
necessary to institute court action, the Plan Administrator will be
entitled to reimbursement from the benefits for the amount of its
reasonable costs, expenses and attorneys' fees incurred.
9-4
<PAGE> 65
ARTICLE 10
AMENDMENT OR TERMINATION OF PLAN
10.01 Right of Plan Sponsor to Amend or Terminate
The Plan Sponsor reserves the right to alter, amend, revoke or terminate
this Plan. No amendment will deprive any Participant or Beneficiary of
any vested right nor will it reduce the present value (determined upon an
actuarial equivalent basis) of any Accrued Benefit to which he is then
entitled with respect to Employer contributions previously made, except
as may be required to maintain the Plan as a qualified plan under the
Code. No amendment will change the duties or responsibilities of the
Trustee without its express written consent thereto.
A plan amendment which has the effect of (a) eliminating or reducing an
early retirement benefit or a retirement-type subsidy, or (b) eliminating
an optional benefit form, will, with respect to benefits attributable to
service before the amendment be treated as reducing Accrued Benefits. In
the case of a retirement-type subsidy, the preceding sentence will apply
only with respect to a Participant who satisfies (either before or after
the amendment) the preamendment conditions for the subsidy. In general, a
retirement-type subsidy is a subsidy that continues after retirement but
does not include a disability retirement benefit, a medical benefit, a
social security supplement, a pre-retirement death benefit, or a plant
shutdown benefit (that does not continue after retirement).
A minimum Accrued Benefit value will apply if this Plan is or becomes a
successor to a profit sharing plan, a defined contribution pension plan,
a target benefit plan, or a defined benefit pension plan which was fully
insured, or any plan under which the accrued benefit of a Participant was
determined as a lump sum or account balance. The actuarial equivalent
value of a Participant's Accrued Benefit will not be less than the
actuarial equivalent value of his Accrued Benefit on the Effective Date
of the Plan.
10.02 Allocation of Assets Upon Termination of Plan
If this Plan is revoked or terminated (in whole or in part) or if
contributions are completely discontinued the Accounts of all affected
Participants will become non-forfeitable. The Employer will then arrange
for allocation of all assets among Participants so affected by the total
or partial termination in accordance with the requirements of all
applicable law and the regulations and requirements of the Internal
Revenue Service. All allocated amounts will be retained in the Plan to
the credit of the individual Participants until distribution as directed
by the Employer. Distribution to Participants may be in the form of cash
or other Plan assets or partly in each.
10.03 Exclusive Benefit
At no time will any part of the principal or income of the Plan assets be
used or diverted for purposes other than the exclusive benefit of
Participants in the Plan and their Beneficiaries, nor may any portion of
the Plan assets revert to the Employer except as provided in Sections
7.01(e) and 8.08.
10.04 Failure to Qualify
Notwithstanding any of the foregoing provisions, if this Plan, upon
adoption by the Employer, is submitted to the Internal Revenue Service
which then determines that the Plan as initially adopted by the Employer
is not a qualified plan under the Code, the Employer may elect to
terminate this Plan by giving written notice thereof. Such termination
will have the same effect as if the Plan were never adopted, all policies
and contracts will be cancelled, and all contributions, to the extent
recoverable from the Trustee, will be returned to their
10-1
<PAGE> 66
source. If any amendment to this Plan is submitted to the Internal
Revenue Service within the period allowed under Code Section 401(b) which
then determines that the Plan as amended is not a qualified plan under
the Code, the Employer may cancel or modify any or all provisions of the
amendment retroactive to the effective date of the amendment in order to
maintain the qualified status of the Plan, whereupon written notice
thereof will be furnished to all affected Employees, Participants and
Beneficiaries.
10.05 Mergers, Consolidations or Transfers of Plan Assets
In the event this Plan is merged or consolidated with another plan which
is qualified under Code Sections 401(a) (and 501(a) if applicable), or in
the event of a transfer of the assets or liabilities of this Plan to
another plan which is qualified under Code Sections 401(a) (and 501(a) if
applicable), the benefit which each Participant would be entitled to
receive under the successor plan or other plan if it were terminated
immediately after the merger, consolidation or transfer will be equal to
or greater than the benefit which the Participant would have received
immediately before the merger, consolidation or transfer if this Plan had
then terminated.
Any transfer of assets and/or liabilities to (or from) this Plan from (or
to) another plan qualified under Code Sections 401(a) (and 501(a) if
applicable) will be evidenced by a Written Resolution by the Plan Sponsor
of each affected plan which specifically authorizes such transfer of
assets and/or liabilities.
10.06 Effect of Plan Amendment on Vesting Schedule
No amendment to the Vesting Schedule will deprive a Participant of his
nonforfeitable right to his Vested Accrued Benefit as of the date of the
amendment. Further, if the Vesting Schedule of the Plan is amended, or if
the Plan is amended in any way that directly or indirectly affects the
computation of a Participant's non-forfeitable percentage, each
Participant with at least 3 Years of Vesting Service as of the last day
of the election period described below may elect, within a reasonable
period after the adoption of the amendment, to have his Vested Percentage
computed under the Plan without regard to such amendment. The period
during which such election may be made will commence with the date the
amendment is adopted and will end 60 days after the latest of:
(a) the date the amendment is adopted;
(b) the date the amendment becomes effective; or
(c) the date the Participant is issued written notice of the amendment
by the Employer.
10-2
<PAGE> 67
ARTICLE 11
TRUSTEE AND TRUST FUND
11.01 Acceptance of Trust
The Trustee, by signing this Agreement, accepts this Trust and agrees to
perform the duties of the Trustee in accordance with the terms and
conditions set forth herein.
11.02 Trust Fund
(a) Purpose and Nature
The Trustee will establish and maintain a Trust Fund for purposes
of providing a means of accumulating the assets necessary to
provide the benefits which become payable under the Plan. The
Trustee will receive, hold and invest all contributions made by the
Employer, any Participating Employers, and the Participants,
including the investment earnings thereon. The Trust Fund arising
from such contributions and earnings will consist of all assets
held by the Trustee under the Plan and Trust. All benefits payable
under the Plan will be paid by the Trustee from the Trust Fund.
Any person having any claim under the Plan will look solely to the
assets of the Trust Fund for satisfaction. In no event will the
Plan Administrator, the Employer, any Employees, any officer of the
Employer or any agents of the Employer or the Plan Administrator be
liable in their individual capacities to any person whomsoever,
under the provisions of this Plan and Trust, except as provided by
law.
The Trust Fund will be used and applied only in accordance with the
provisions of the Plan and Trust, to provide the benefits thereof,
and no part of the corpus or income of the Trust Fund will be used
for, or diverted to, purposes other than for the exclusive benefit
of the Participants or their Beneficiaries entitled to benefits
under the Plan, except to the extent specifically provided
elsewhere herein.
(b) Investments
The Trustee will invest the Trust Fund in accordance with the
investment policy for the Trust Fund considering the fiduciary
requirements of law, the objectives of the Plan, and the liquidity
needs of the Plan.
(c) Reserved
(d) Operation of Trust Fund
The Trust Fund will be maintained in accordance with the accounting
requirements of the Plan. No Participant will have any right to any
specific asset or any specific portion of the Trust Fund prior to
distribution of benefits. Withdrawals from the Trust Fund will be
made to provide benefits to Participants and Beneficiaries in the
amounts specified by the Plan, and to pay expenses authorized by
the Plan Administrator.
(e) Plan Sponsor Direction of Investment
The Plan Sponsor will have the right to direct the Trustee with
respect to the investment and reinvestment of assets comprising the
Trust Fund. The Trustee and the Plan Sponsor (or the Plan
Administrator or an Investment Committee appointed by the Plan
Sponsor) will execute a letter of agreement as a part of this Plan
containing such conditions, limitations and other provisions they
deem appropriate before the Trustee will follow any Plan Sponsor
direction with respect to the investment or reinvestment of any
part of the Trust Fund.
11-1
<PAGE> 68
(f) Combined Trust Fund for Collective Investment Purposes
At the Plan Sponsor's direction, the Trustee, for collective
investment purposes, may combine into a single fund the Trust
created under this Plan with the Trust created under any other
qualified retirement plan maintained by the Plan Sponsor. The Plan
Sponsor will ensure that records of the combined fund are
maintained in such a manner as to properly reflect each
Participant's Accrued Benefit under the Plan(s) in which he is a
Participant.
11.03 Receipt of Contributions
The Trustee will be accountable to the Employer for the funds contributed
to it, but will have no duty to see that the contributions received
comply with the provisions of the Plan. The Trustee will not be obligated
to collect any contributions from the Employer or the Participants.
11.04 Powers of the Trustee
Subject to the provisions and limitations contained elsewhere in this
Plan, the Trustee will have full discretion and authority with regard to
the investment of the Trust Fund. The Trustee is authorized and
empowered, but not by way of limitation, with the following powers,
rights and duties:
(a) To invest any part or all of the Trust Fund in any common or
preferred stocks, open-end or closed-end mutual funds, United
States retirement plan bonds, corporate bonds, debentures,
convertible debentures, commercial paper, U.S. Treasury bills, book
entry deposits with the United States Federal Reserve Bank or
System, Master Notes or similar arrangements sponsored by the
Trustee or any other financial institution as permitted by law,
improved or unimproved real estate situated in the United States,
mortgages, notes or other property of any kind, real or personal,
as a prudent man would so invest under like circumstances with due
regard for the purposes of this Plan;
(b) To maintain any part of the assets of the Trust Fund in cash, or in
demand or short-term time deposits bearing a reasonable rate of
interest (including demand or short-term time deposits of or with
the Trustee), or in a short-term investment fund or in other cash
equivalents having ready marketability, including, but not limited
to, U.S. Treasury Bills, commercial paper, certificates of deposit
(including such certificates of deposit of or with the Trustee),
and similar types of short-term securities, as may be deemed
necessary by the Trustee in its sole discretion;
(c) To manage, sell, contract to sell, grant options to purchase,
convey, exchange, transfer, abandon, improve, repair, insure, lease
for any term even though commencing in the future or extending
beyond the term of the Trust, and otherwise deal with all property,
real or personal, in such manner, for such considerations and on
such terms and conditions as the Trustee will decide;
(d) To credit and distribute the Trust as directed by the Plan
Administrator or any agent of the Plan Administrator. The Trustee
will not be obliged to inquire as to whether any payee or
distributee is entitled to any payment or whether the distribution
is proper or within the terms of the Plan, or as to the manner of
making any payment or distribution. The Trustee will be accountable
only to the Plan Administrator for any payment or distribution made
by it in good faith on the order or direction of the Plan
Administrator or any agent of the Plan Administrator;
(e) To borrow money, assume indebtedness, extend mortgages and encumber
by mortgage or pledge;
11-2
<PAGE> 69
(f) To compromise, contest, arbitrate, or abandon claims and demands,
in its discretion;
(g) To have with respect to the Trust all of the rights of an
individual owner, including the power to give proxies, to
participate in any voting trusts, mergers, consolidations or
liquidations, and to exercise or sell stock subscriptions or
conversion rights;
(h) To hold any securities or other property in the name of the Trustee
or its nominee, or in another form as it may deem best, with or
without disclosing the trust relationship;
(i) To perform any and all other acts in its judgment necessary or
appropriate for the proper and advantageous management, investment
and distribution of the Trust;
(j) To retain any funds or property subject to any dispute without
liability for the payment of interest, and to decline to make
payment or delivery of the funds or property until final
adjudication is made by a court of competent jurisdiction;
(k) To file all tax forms or returns required of the Trustee;
(l) To begin, maintain or defend any litigation necessary in connection
with the administration of the Plan, except that the Trustee will
not be obligated to or required to do so unless indemnified to its
satisfaction; and
(m) To keep any or all of the Trust property at any place or places
within the United States or abroad, or with a depository or
custodian at such place or places; provided, however, that the
Trustee may not maintain the indicia of ownership of any assets of
the Plan outside the jurisdiction of the District Courts of the
United States, except as may be expressly authorized in U.S.
Treasury or U.S. Department of Labor regulations.
11.05 Investment in Common or Collective Trust Funds
Notwithstanding the provisions of Section 11.04, the Plan Sponsor
specifically authorizes the Trustee to invest all or any portion of the
assets comprising the Trust Fund in any common or collective trust fund
which at the time of the investment provides for the pooling of the
assets of plans qualified under Code Section 401(a). The authorization
applies only if such common or collective trust fund: (a) is exempt from
taxation under Code Section 584 or 501(a); (b) if exempt under Code
Section 501(a), expressly limits participation to pension and profit
sharing trusts which are exempt under Code Section 501(a) by reason of
qualifying under Code Section 401(a); (c) prohibits that part of its
corpus or income which equitably belongs to any participating trust from
being used for or diverted to any purposes other than for the exclusive
benefit of the Employees or their Beneficiaries who are entitled to
benefits under such participating trust; (d) prohibits assignment by
participating trust of any part of its equity or interest in the group
trust; and (e) the sponsor of the group trust created or organized the
group trust in the United States and maintains the group trust at all
times as a domestic trust in the United States. The provisions of the
common or collective trust fund agreement, as amended by the Trustee from
time to time, are by this reference incorporated within this Plan and
Trust. The provisions of the common or collective trust fund will govern
any investment of Plan assets in that fund. This provision constitutes
the express permission required by Section 408(b)(8) of ERISA.
11.06 Investment in Insurance Company Contracts
The Trustee may invest any portion of the Trust Fund in a deposit
administration, guaranteed investment or similar type of investment
contract (hereinafter referred to as Contract); provided, however, that
no such Contract may provide for an optional form of benefit which would
not be provided for under the provisions hereof. The Trustee will be the
complete and
11-3
<PAGE> 70
absolute owner of Contracts held in the Trust Fund.
The Trustee may convert from one form to another any Contract held in the
Trust Fund; designate any mode of settlement; sell or assign any Contract
held in the Trust Fund; surrender for cash any Contract held in the Trust
Fund; agree with the insurance company issuing any Contract to any
release, reduction, modification or amendment thereof; and, without
limitation of any of the foregoing, exercise any and all of the rights,
options and privileges that belong to the absolute owner of any Contract
held in the Trust Fund that are granted by the terms of any such Contract
or by the terms of this Agreement.
The Trustee will hold in the Trust Fund the proceeds of any sale,
assignment or surrender of any Contract held in the Trust Fund and any
and all dividends and other payments of any kind received in respect to
any Contract held in the Trust Fund.
No insurance company which may issue any Contract based upon the
application of the Trustee will be responsible for the validity of this
Plan, be required to look into the terms of this Plan, be required to
question any act of the Plan Administrator or the Trustee hereunder or be
required to verify that any action of the Trustee is authorized by this
Plan. If a conflict should arise between the terms of the Plan and any
such Contract, the terms of the Plan will govern.
11.07 Fees and Expenses from Fund
The Trustee will be entitled to receive reasonable annual compensation as
may be mutually agreed upon from time to time between the Plan Sponsor
and the Trustee. The Trustee will pay all expenses reasonably incurred by
it in its administration and investment of the Trust Fund from the Trust
Fund unless the Plan Sponsor pays the expenses. No person who is
receiving full pay from the Plan Sponsor will receive compensation for
services as Trustee.
11.08 Records and Accounting
The Trustee will keep full and complete records of the administration of
the Trust Fund which the Employer and the Plan Administrator may examine
at any reasonable time. As soon as practical after the end of each Plan
Year and at such other reasonable times as the Employer may direct, the
Trustee will prepare and deliver to the Employer and the Plan
Administrator an accounting of the administration of the Trust, including
a report on the fair market value of all assets of the Trust Fund.
11.09 Distribution Directions
If no one claims a payment or distribution made from the Trust, the
Trustee will notify the Plan Administrator and will dispose of the
payment in accordance with the subsequent direction of the Plan
Administrator.
11.10 Third Party
No person dealing with the Trustee will be obliged to see to the proper
application of any money paid or property delivered to the Trustee, or to
inquire whether the Trustee has acted pursuant to any of the terms of the
Plan. Each person dealing with the Trustee may act upon any notice,
request or representation in writing by the Trustee, or by the Trustee's
duly authorized agent, and will not be liable to any person whomsoever in
so doing. The certification of the Trustee that it is acting in
accordance with the Plan will be conclusive in favor of any person
relying on the certification.
11.11 Professional Agents, Affiliates and Arbitration
11-4
<PAGE> 71
(a) Professional Agents
The Trustee may employ and pay from the Trust Fund reasonable
compensation to agents, attorneys, accountants and other persons to
advise the Trustee as in its opinion may be necessary. The Trustee
may delegate to any agent, attorney, accountant or other person
selected by it any non-Trustee power or duty vested in it by the
Plan; the Trustee may act or refrain from acting on the advice or
opinion of any agent, attorney, accountant or other person so
selected.
(b) Use of Affiliates
(1) Charles Schwab Trust Company (CSTC) is authorized to contract
or make other arrangements with The Charles Schwab
Corporation, Charles Schwab & Co., Inc., their affiliates and
subsidiaries, successors and assigns (collectively referred
to as Schwab), and any other organizations affiliated with or
subsidiaries of CSTC or related entities, for the provision
of services to the Trust Fund or Plan, except where such
arrangements are prohibited by law or regulation. As used
below, authorized person means any person whose authorization
is required pursuant to the provision of any prohibited
transaction exemption otherwise applicable.
(2) CSTC is authorized to place securities orders, settle
securities trades, hold securities in custody and other
related activities on behalf of the Trust Fund through or by
Schwab whenever possible unless the authorized person
specifically instructs the use of another Broker. Trades and
related activities conducted through the Broker will be
subject to fees and commissions established by the Broker,
which may be paid from the Trust Fund or netted from the
proceeds of trades.
(3) Trades will not be executed through Schwab unless the Plan
Administrator and the authorized person have received
disclosure concerning the relationship of Schwab to CSTC, and
the fees and commissions which may be paid to Schwab, CSTC
and any affiliate or subsidiary of any of them as a result of
using Schwab to execute trades or for other services.
(4) CSTC is authorized to disclose such information as is
necessary to the operation and administration of the Trust
Fund to Schwab and to such other persons or organizations
that CSTC determines have a legitimate business purpose for
obtaining such information.
(5) At the direction of the authorized person, CSTC may purchase
shares of regulated investment companies (or other investment
vehicles) advised by Schwab or CSTC ("Schwab Funds"), except
to the extent that such investment is prohibited by law or
regulation. Schwab Fund shares may not be purchased for or
held by the Trust Fund unless the Plan Administrator has
received disclosure concerning the relationship of Schwab or
CSTC to the Schwab Funds, and any fees which may be paid to
such entities.
(6) To the extent permitted under applicable laws, CSTC may
invest in deposits, long and short term debt instruments,
stocks and other securities, including those of CSTC or
Schwab.
(7) CSTC and Schwab are authorized to tape record conversations
between CSTC or Schwab and persons acting on behalf of the
Plan or a Participant in order to verify data on
transactions.
11-5
<PAGE> 72
(c) Arbitration
Any dispute under this agreement will be resolved by submission of
the issue to a member of the American Arbitration Association who
is chosen by the Employer and the Trustee. If the Employer and the
Trustee cannot agree on such a choice, each will nominate a member
of the American Arbitration Association, and the two nominees will
then select an arbitrator. Expenses of the arbitration will be paid
as decided by the arbitrator.
11.12 Valuation of Trust
The Trustee will value the Trust Fund as of the last day of each Plan
Year to determine the fair market value of the Trust, and the Trustee
will value the Trust Fund on such other date(s) as may be necessary to
carry out the provisions of the Plan.
11.13 Liability of Trustee
The Trustee will be liable only for the safeguarding and administration
of the assets of this Trust Fund in accordance with the provisions hereof
and any amendments hereto and no other duties or responsibilities will be
implied. The Trustee will not be required to pay any interest on funds
paid to or deposited with it or to its credit under the provisions of
this Trust, unless pursuant to a written agreement between the Employer
and the Trustee. The Trustee will not be responsible for the adequacy of
the Trust Fund to meet and discharge any liabilities under the Plan and
will not be required to make any payment of any nature except from funds
actually received as Trustee. The Trustee may consult with legal counsel
(who may be legal counsel for the Employer) selected by the Trustee and
will be fully protected for any action taken, suffered or omitted in good
faith in accordance with the opinion of said legal counsel. It will not
be the duty of the Trustee to determine the identity or mailing address
of any Participant or any other person entitled to benefits hereunder,
such identity and mailing addresses to be furnished by the Employer, the
Plan Administrator or an agent of the Plan Administrator. The Trustee
will be under no liability in making payments in accordance with the
terms of this Plan and the certification of the Plan Administrator or an
agent of the Plan Administrator who has been granted such powers by the
Plan Administrator.
Except to the extent required by any applicable law, no bond or other
security for the faithful performance of duty hereunder will be required
of the Trustee.
11.14 Removal or Resignation and Successor Trustee
A Trustee may resign at any time upon giving 30 days prior written notice
to the Plan Sponsor or, with the consent of the Plan Sponsor, a Trustee
may resign with less than 30 days prior written notice.
The Plan Sponsor may remove a Trustee by giving at least 30 days prior
written notice to the Trustee.
Upon the removal or resignation of a Trustee, the Plan Sponsor will
appoint and designate a successor Trustee which will be one or more
individual successor Trustees or a corporate Trustee organized under the
laws of the United Sates or of any state thereof with authority to accept
and execute trusts. Any successor Trustee must accept and acknowledge in
writing its appointment as a successor Trustee before it can act in such
capacity.
Title to all property and records or true copies of such records
necessary to the current operation of the Trust Fund held by the Trustee
hereunder will vest in any successor Trustee acting pursuant to the
provisions hereof, without the execution or filing of any further
instrument. Any resigning or removed Trustee will execute all instruments
and do all acts necessary to vest such title in any successor Trustee of
record. Each successor Trustee will have, exercise and enjoy all the
powers, both discretionary and ministerial, herein conferred upon his
predecessor. No successor Trustee will be obligated to examine the
accounts,
11-6
<PAGE> 73
records and acts of any previous Trustee or Trustees, and each successor
Trustee in no way or manner will be responsible for any action or
omission to act on the part of any previous Trustee.
Any corporation which results from any merger, consolidation or purchase
to which the Trustee may be a party, or which succeeds to the trust
business of the Trustee, or to which substantially all the trust assets
of the Trustee may be transferred, will be the successor to the Trustee
hereunder without any further act or formality with like effect as if the
successor Trustee had originally been named Trustee herein; and in any
such event it will not be necessary for the Trustee or any successor
Trustee to give notice thereof to any person, and any requirement,
statutory or otherwise, that notice will be given is hereby waived.
11.15 Appointment of Investment Manager
One or more Investment Managers may be appointed by the Plan Sponsor (or
the Plan Administrator) to exercise full investment management authority
with respect to all or a portion of the Trust assets. Authorized payment
of the fees and expenses of the Investment Manager(s) may be made from
the Trust assets. For purposes of this agreement, any Investment Manager
so appointed will, during the period of his appointment, possess fully
and absolutely those powers, rights and duties of the Trustee (to the
extent delegated by the Plan Sponsor or the Plan Administrator) with
respect to the investment or reinvestment of that portion of the Trust
assets over which the Investment Manager has investment management
authority. The Investment Manager must be one of the following:
(a) Registered as an investment advisor under the Investment Advisors
Act of 1940;
(b) A bank, as defined in the Investment Advisors Act of 1940; or
(c) An insurance company qualified to manage, acquire, or dispose of
such Plan assets under the laws of more than one state.
Any Investment Manager will acknowledge in writing to the Plan Sponsor or
the Plan Administrator and to the Trustee that he or it is a fiduciary
with respect to the Plan. During any period of time when the Investment
Manager is so appointed and serving, and with respect to those assets in
the Plan over which the Investment Manager exercises investment
management authority, the Trustee's responsibility will be limited to
holding such assets as a custodian, providing accounting services,
disbursing benefits as authorized, and executing such investment
instructions only as directed by the Investment Manager. The Trustee will
not be responsible for any acts or omissions of the Investment Manager.
Any certificates or other instruments duly signed by the Investment
Manager (or the authorized representative of the Investment Manager),
purporting to evidence any instruction, direction or order of the
Investment Manager with respect to the investment of those assets of the
Plan over which the Investment Manager has investment management
authority, will be accepted by the Trustee as conclusive proof thereof.
The Trustee will also be fully protected in acting in good faith upon any
notice, instruction, direction, order, certificate, opinion, letter,
telegram or other document believed by the Trustee to be genuine and from
the Investment Manager (or the authorized representative of the
Investment Manager). The Trustee will not be liable for any action taken
or omitted by the Investment Manager or for any mistakes of judgment or
other action made, taken or omitted by the Trustee in good faith upon
direction of the Investment Manager.
11.16 Loans to Participants
The Plan Administrator may authorize the Trustee to lend on a
nondiscriminatory basis to a Participant an amount from the Plan as
specified herein; provided, a reasonable rate of interest will be charged
on the loan, the loan will be secured by 50% of the Participant's
11-7
<PAGE> 74
Vested Accrued Benefit in the Plan, and provision for repayment will be
made. All loans will be subject to the approval of the Plan Administrator
which will investigate each application for a loan. The Plan
Administrator will prescribe such rules as may be necessary to provide
guidelines as to under which circumstances and for what purpose loans
will be permitted.
The Plan Administrator will prescribe guidelines as to which Account or
Accounts loans may be made from. Each loan made to a Participant will be
made from the Participant's allowable Account or Accounts. All interest
and principal repayments will be credited to the Participant's Account
from which the loan was made.
In addition to any additional rules and regulations as the Plan
Administrator may adopt all loans will comply with the following terms
and conditions:
(a) Only Active and Inactive Participants will be eligible to apply for
a loan. Each application for a loan will be made in writing to the
Plan Administrator, whose action thereon will be final.
(b) Each loan will be made against collateral being the assignment of
50% of the borrower's entire right, title and interest in and to
the Trust Fund, supported by the borrower's promissory note for the
amount of the loan, including interest payable to the order to the
Trustee, and any additional security deemed necessary to adequately
secure the Loan. If a person fails to make a required payment
within 90 days of the due date set forth in the loan agreement, the
loan will be in default. There will be no foreclosure against a
Participant's Accrued Benefit prior to his becoming entitled to a
distribution of benefits in accordance with the terms of this Plan.
All loans will become due and payable in full upon the termination
of a Participant's employment. If a Participant with an outstanding
loan terminates employment and becomes entitled to a distribution
of benefits from the Plan, then the outstanding balance of the
unpaid loan plus any accrued interest thereon will be deducted from
the amount of otherwise distributable benefits and the
Participant's promissory note will be distributed to the
Participant.
(c) The principal repayment will be amortized over the fixed life of a
loan with installments of principal and interest to be paid not
less often than quarterly. The period of repayment for each loan
will be arrived at by mutual agreement between the Plan
Administrator and the borrower, but in no event will such period
exceed a reasonable period of time. The period of repayment will in
no event exceed 5 years unless the loan is to be used to acquire,
construct, reconstruct or substantially rehabilitate any dwelling
unit which, within a reasonable period of time, is to be used as a
principal residence of the Participant or a member of the family
(spouse, brother, sister, ancestor, or lineal descendants) of the
Participant.
(d) The minimum amount of any loan is equal to $1,000.
(e) The maximum amount of any loan is such that when the amount of the
loan is added to the outstanding balance of all other loans made to
the Participant from the Plan (and any other plans maintained by
the Employer or any Related Employer) the total does not exceed the
lesser of:
(1) 50% of the Participant's Vested Accrued Benefit; or
(2) $50,000, reduced by the amount, if any, of the highest
balance of all outstanding loans to the Participant during
the one-year period ending on the day prior to the day on
which the loan in question is made.
11-8
<PAGE> 75
(f) Each loan will bear interest at a rate equal to the prime rate
which is published in the Wall Street Journal as being
representative of the base rate on corporate loans at large U.S.
money center commercial banks on the date on which the loan is
made, plus 1 percentage point.
(g) A Participant may have no more than three loans outstanding at any
time.
(h) Each loan will require the Participant (and, if the Participant is
married, the Participant's spouse) to consent to the loan and the
possible reduction in the Participant's Accrued Benefit. Such
consent must be made in writing within the 90-day period before the
making of the loan.
(i) No loan will be permitted to a Participant in a year in which he is
either an Owner-Employee or Shareholder-Employee as defined in Code
Section 4975(d).
The spousal consent must meet requirements which are comparable to
the requirements described in Code Section 417(a)(2). Any security
interest held by the Plan by reason of an outstanding loan is taken
into account in determining the value of a Qualified Survivor
Annuity. However, in the event a Participant defaults on a loan,
the security interest in the loan will be deducted from the
Qualified Survivor Annuity.
11-9
<PAGE> 76
ARTICLE 12
PROVISIONS RELATING TO EMPLOYER STOCK
12.01 Type of Employer Stock
The Trustee will, to the extent practical based on the Participant's
election, invest that portion of the Trust fund so elected by
Participants, in Class A Common Stock of the Employer or any
Participating Employer (Employer Stock) which includes treasury stock
which has been purchased by the Employer. For purposes of determining
Voting Rights under Section 12.02, Employer Stock shall include Employer
Stock and any shares of Getchell Gold Corporation stock held in the Trust
Fund.
12.02 Voting Rights
(a) In General
Voting rights with respect to shares of Employer Stock held in the
Trust Fund shall be voted by the Trustee in such manner as may be
determined by the respective Participants, with respect to all
matters requiring shareholder approval.
With respect to shares of Employer Stock in the Trust Fund which
are allocated to Participants who fail to give directions to the
Trustee, such shares shall be voted by the Trustee based on the
voting directions of those Participants who issued directions with
respect to Employer Stock allocated to their Accounts. The number
of non-voted shares to be voted in a particular manner shall be
determined by multiplying the total number of such shares by a
fraction, the numerator of which is the number of allocated shares
directed to be voted in such manner, and the denominator of which
is the total number of allocated shares directed to be voted in any
manner with respect to the matter at issue.
The Retirement Plan Committee may establish such rules and
guidelines as it deems necessary to properly effect the provision
of this section.
(b) Tender Offers
Each Participant, or, in the event of his death, his Beneficiary,
shall have the right, to the extent of the number of full shares of
Employer Stock in his account, to direct the Trustee in writing as
to the manner in which to respond to a tender or exchange offer
with respect to shares of such Employer Stock.
The Employere shall utilize its best efforts to timely distribute
or cause to be distributed to each Participant (or Beneficiary)
such information as will be distributed to shareholders of the
Employer in connection with any such tender or exchange offer.
The Trustee shall, with respect to all Employer Stock held in the
Trust Fund, accept or reject the terms of any tender offer and,
accordingly, tender Employer Stock held by the Trustee in the Trust
Fund in accordance with the terms and provisions of any tender
offer, or not tender such Employer Stock, as directed by the
respective Participants (or Beneficiaries). With respect to shares
of Employer Stock which are allocated to Participants who have not
given directions, the Trustee shall not tender any shares of
Employer Stock with respect to which such Participants (or
Beneficiaries) have the right of direction.
The Retirement Plan Committee may establish such rules and
guidelines as it deems
12-1
<PAGE> 77
appropriate to properly effect the provisions of this Section.
12.03 Special Provisions Applicable to Employer Securities
In accordance with Rule 16(b)-3 adopted by the Securities and Exchange
Commission, the following provisions shall apply with respect to
purchases, sales and allocations to participant accounts of Employer
Securities, notwithstanding anything else to the contrary in this Plan or
in any rules adopted hereunder:
(a) Annual Limit on Shares Acquired or Awarded
The Plan shall not acquire or award to Participants in any fiscal
year of the Plan more than 2% of the outstanding shares of Common
Stock of the Company or more than 2% of the outstanding shares of
Common Stock of FirstMiss Gold, in each case based on the number of
such shares outstanding as of the beginning of each such fiscal
year; and
(b) Fiduciary Duties with regard to Prices and Values
The Trustee and other Plan Fiduciaries shall act in accordance with
their fiduciary duties in determining the prices at which the
Trustee shall purchase Employer securities and in determining the
value used in allocating such securities to Participant Accounts.
12-2
<PAGE> 78
IN WITNESS WHEREOF, this instrument has been executed by the duly authorized
and empowered officers of the Employer, this 19th day of December, 1996.
First Mississippi Corporation
By: James K. Williams, Chief Executive Office
-----------------------------------------
The Trustee agrees to continue to serve as Trustee under the terms of this
instrument.
By: Charles Schwab Trust Company
-----------------------------------------
<PAGE> 79
FIRST AMENDMENT TO THE
FIRST MISSISSIPPI CORPORATION 401(K) SAVINGS PLAN
AS AMENDED EFFECTIVE AUGUST 1, 1996
AND, EFFECTIVE DECEMBER 23, 1996, TO BE KNOWN AS THE
CHEMFIRST INC. 401(K) SAVINGS PLAN
This Amendment, effective December 23, 1996, is made by First Mississippi
Corporation, the Plan Sponsor, and by ChemFirst Inc. the Plan Sponsor.
WHEREAS, First Mississippi Corporation has previously established the First
Mississippi Corporation 401(k) Savings Plan for the benefit of eligible
employees and their beneficiaries; and
NOW, THEREFORE, pursuant to Plan Section 10.01, the following amendment is
hereby made and shall be effective December 23, 1996:
The first sentence of Plan Section 1.13 is amended to read:
Employer
Effective December 23, 1996, the Employer and Plan Sponsor is
ChemFirst Inc.
The first sentence of Plan Section 1.28 is amended to read:
Plan, Plan and Trust, Trust
The terms Plan, Plan and Trust and trust mean the ChemFirst Inc.
401(k) Savings Plan.
IN WITNESS WHEREOF, the Plan Sponsor, First Mississippi Corporation, and the
successor Plan Sponsor, ChemFirst Inc. have caused this instrument to be
executed as of the date specified below.
PLAN SPONSOR:
First Mississippi Corporation
Dated: 12/20/96 By: Thomas G. Tepas
-------------------------- -------------------------------
SUCCESSOR PLAN SPONSOR:
ChemFirst Inc.
Dated: 12/20/96 By: Thomas G. Tepas
-------------------------- -------------------------------
Accepted by the Trustee:
Charles Schwab Trust Company
Dated: 12/20/96 By: Charles Schwab Trust Company
-------------------------- -------------------------------
<PAGE> 1
EXHIBIT 5.3
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
P. O. BOX 1055
ATLANTA, GA 30370-0000
Employer Identification Number:
Date: April 24, 1996 64-0354930
File Folder Number:
640000276
FIRST MISSISSIPPI CORPORATION Person to Contact:
700 NORTH STREET EP/EO CUSTOMER SERVICE UNIT
JACKSON, MS 39215-1249 Contact Telephone Number:
(410) 962-6058
Plan Name:
FIRST MISSISSIPPI CORPORATION
401(K) SAVINGS PLAN
Plan Number: 002
Dear Applicant:
We have made a favorable determination on your plan, identified above,
based on the information supplied. Please keep this letter in your permanent
records.
Continued qualification of the plan under its present form will depend
on its effect in operation. (See section 1.401-1(b)(3) of the Income tax
Regulations.) We will review the status of the plan in operation periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some features that may effect the qualified
status of your employee retirement plan, and provides information on the
reporting requirements for your plan. It also describes some events that
automatically nullify it. It is very important that you read the publication.
This letter relates only to the status of your plan under the Internal
Revenue Code. It is not a determination regarding the effect of other federal
or local statues.
This determination letter is applicable for the amendment(s) adopted
on June 13, 1994.
This plan has been mandatorily disaggregated, permissively aggregated,
or restructured to satisfy the nondiscrimination requirements.
This letter is issued under Rev. Proc. 93-39 and considers the
amendments required by the Tax Reform Act of 1986 except as otherwise specified
in this letter.
<PAGE> 2
This plan satisfies the nondiscriminatory current availability
requirement of section 1.401(a)(4)-4(b) of the regulations with respect to
those benefits, rights, and features that are currently available to all
employees in the plan's coverage group. For this purpose, the plan's coverage
group consists of those employees treated as currently benefiting for purposes
of demonstrating that the plan satisfies the minimum coverage requirements of
section 410(b) of the Code.
This letter may not be relied upon with respect to whether the plan
satisfies the qualification requirements as amended by the Uruguay Round
Agreements Act, Pub. L. 103-465.
If you have questions concerning this matter, please contact the
person whose name and telephone number are shown above.
Sincerely yours,
Paul M. Herrington
District Director
Enclosures:
Publication 794
Reporting & Disclosure Guide
for Employee Benefit Plans
<PAGE> 1
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
___________________:
We consent to the use of our report dated September 6, 1996 on the
consolidated financial statements of ChemFirst Inc. and subsidiaries as of June
30, 1996 and 1995, and for each of the years in the three-year period ended
June 30, 1996, incorporated by reference herein, and to the use of our report
dated November 15, 1996 on the Financial Statements of the ChemFirst Inc.
401"k" Saving Plan as of June 30, 1995 and 1994 and for each of the years in
the three year period ended June 30, 1995, incorporated herein by reference,
and to the reference to our firm under the heading "Experts" in the Prospectus.
/s/ KPMG Peat Marwick LLP
- -------------------------
KPMG Peat Marwick LLP
Jackson, Mississippi
December 23, 1996
