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Registration No. 333-
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As filed with the Securities and Exchange Commission on May 3, 1999
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AMERITRADE HOLDING CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE
(State or Other Jurisdiction of Incorporation or Organization)
47-0642657
(I.R.S. Employer Identification No.)
4211 SOUTH 102ND STREET, OMAHA, NEBRASKA 68127
(Address of Principal Executive Offices) (Zip Code)
AMERITRADE HOLDING CORPORATION
ASSOCIATES 401(K) PROFIT SHARING PLAN AND TRUST
(Full Title of the Plan)
ROBERT T. SLEZAK
AMERITRADE HOLDING CORPORATION
4211 SOUTH 102ND STREET
OMAHA, NEBRASKA 68127
(Name and Address of Agent for Service)
(402) 331-7856
(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to Be to Be Price Per Offering Registration
Registered Registered Share 1/ Price 1/ Fee
- -
- -------------------------------------------------------------------------------
Class A Common
Stock, $.01 par value 7,000,000 Shares $123.625 $865,375,000 $240,574.25
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1/ In accordance with Rule 457(h)(1), the offering price of the Class A
Common Stock was computed upon the basis of the average of the high and
low sale prices of the shares of Class A Common Stock on The Nasdaq
Stock Market on April 29, 1999.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have heretofore been filed by Ameritrade
Holding Corporation (the "Company") with the Securities and Exchange Commission
(the "Commission"), are incorporated by reference herein and shall be deemed to
be a part hereof:
(a) The Company's Annual Report on Form 10-K for the year ended
September 25, 1998 filed with the Commission on December 21,
1998 (as amended by an amendment thereto filed with the
Commission on January 20, 1999) under the Securities Exchange
Act of 1934, as amended (the "Exchange Act");
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended December 31, 1998 filed with the Commission on February
12, 1999 under the Exchange Act; and
(c) The description of the Company's Class A Common Stock, par
value $.01 per share (the "Class A Stock"), contained in the
Company's Registration Statement on Form 8-A filed with the
Commission on February 21, 1997 under the Exchange Act.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated herein by reference and shall be deemed a part hereof from the date
of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Pursuant to the provisions of the Delaware General Corporation Law (the
"DGCL"), the Company has adopted provisions in its Certificate of Incorporation
and Bylaws, which (i) require the Company to indemnify its directors and
officers to the fullest extent permitted by law and (ii) eliminate the personal
liability of its directors to the Company or its stockholders for monetary
damages for breach of their duty of due care, except (a) for any breach of the
duty of loyalty; (b) for acts or omissions not in good faith or which involve
intentional misconduct or knowing violations of law; (c) for liability under
Section 174 of the DGCL (relating to certain unlawful dividends, stock
repurchases or stock redemptions); or (d) for any transaction from which the
director derived any improper personal benefit.
The Company also maintains insurance on its directors and officers,
which covers liabilities under the federal securities laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
2
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ITEM 8. EXHIBITS.
See Exhibit Index.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment
to this registration statement:
(i) To include any prospectus required by
section 10(a)(3) of the Securities Act of
1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the registration statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the registration
statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information
required to be included in a post-effective
amendment by those paragraphs is contained in
periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section
13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any
liability under the Securities Act, each such
post-effective amendment shall be deemed to be a
new registration statement relating to the
securities offered therein, and the offering of
such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities
being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
3
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jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
4
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Omaha, State of Nebraska, on April 30, 1999.
AMERITRADE HOLDING CORPORATION
By: /s/ J. Joe Ricketts
-----------------------------------------
J. Joe Ricketts
Chairman and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints J.
Joe Ricketts and Robert T. Slezak, or either of them, such person's true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on April 30, 1999.
/s/ J. Joe Ricketts
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J. Joe Ricketts
Director, Chairman and Chief Executive Officer
(Principal Executive Officer)
/s/ Robert T. Slezak
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Robert T. Slezak
Director, Chief Financial Officer,
Vice President and Treasurer
(Principal Financial and Accounting Officer)
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Gene L. Finn
Director
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David L. Garrison
Director
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Thomas Y. Hartley
Director
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/s/ Joseph A. Konen
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Joseph A. Konen
Director
/s/ Charles L. Marinaccio
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Charles L. Marinaccio
Director
/s/ Mark L. Mitchell
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Mark L. Mitchell
Director
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John W. Ward
Director
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EXHIBIT INDEX
Exhibit Description
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4.1 Form of Certificate for Class A Stock (filed as Exhibit Number 4.1 to
the Company's Registration Statement on Form S-1 (File No. 333-17495),
and incorporated herein by reference).
4.2 Ameritrade Holding Corporation Associates 401(k) Profit Sharing Plan
and Trust.
23.1 Consent of Deloitte & Touche LLP.
24.1 Power of Attorney (appears on the signature page of this Registration
Statement).
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EXHIBIT 4.2
AMERITRADE HOLDING CORPORATION ASSOCIATES
401(K) PROFIT SHARING PLAN AND TRUST
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EXHIBIT 4.2
AMERITRADE HOLDING CORPORATION ASSOCIATES
401(K) PROFIT SHARING PLAN AND TRUST
THIS AGREEMENT, hereby made and entered into this thirtieth
day of April, 1999, by and between Ameritrade Holding Corporation (herein
referred to as the "Employer"), INTRUST Bank, N.A. (herein referred to as the
"Trustee" effective May 1, 1999), and John Joe Ricketts and Marlene M. Ricketts
(herein referred to as the "Trustee" for the period beginning January 1, 1997
and ending April 30, 1999).
W I T N E S S E T H:
WHEREAS, the Employer heretofore established a Profit Sharing
Plan and Trust effective January 19, 1981, (hereinafter called the "Effective
Date") known as Ameritrade Holding Corporation Associates Profit Sharing Plan
and Trust and which plan shall hereinafter be known as Ameritrade Holding
Corporation Associates 401(k) Profit Sharing Plan and Trust (herein referred to
as the "Plan") in recognition of the contribution made to its successful
operation by its employees and for the exclusive benefit of its eligible
employees; and
WHEREAS, under the terms of the Plan, the Employer has the
ability to amend the Plan, provided the Trustee joins in such amendment if the
provisions of the Plan affecting the Trustee are amended;
NOW, THEREFORE, effective January 1, 1997, and May 1, 1999,
except as otherwise provided, the Employer and the Trustee in accordance with
the provisions of the Plan pertaining to amendments thereof, hereby amend the
Plan in its entirety and restate the Plan to provide as follows:
ARTICLE I
DEFINITIONS
1.1 "Act" means the Employee Retirement Income Security Act of 1974, as it may
be amended from time to time.
1.2 "Administrator" means the Employer unless another person or entity has been
designated by the Employer pursuant to Section 2.2 to administer the Plan on
behalf of the Employer.
1.3 "Affiliated Employer" means any corporation which is a member of a
controlled group of corporations (as defined in Code Section 414(b)) which
includes the Employer; any trade or business (whether or not incorporated) which
is under common control (as defined in Code Section 414(c)) with the Employer;
any organization (whether or not incorporated) which is a member of an
affiliated service group (as defined in Code Section 414(m)) which includes the
Employer; and any other entity required to be aggregated with the Employer
pursuant to Regulations under Code Section 414(o).
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1.4 "Aggregate Account" means, with respect to each Participant, the value of
all accounts maintained on behalf of a Participant, whether attributable to
Employer or Employee contributions, subject to the provisions of Section 9.2.
1.5 "Anniversary Date" means December 31st.
1.6 "Beneficiary" means the person to whom the share of a deceased Participant's
total account is payable, subject to the restrictions of Sections 6.2 and 6.5.
1.7 "Code" means the Internal Revenue Code of 1986, as amended or replaced from
time to time.
1.8 "Compensation" with respect to any Participant means such Participant's
wages as defined in Code Section 3401(a) and all other payments of compensation
by the Employer (in the course of the Employer's trade or business) for a Plan
Year for which the Employer is required to furnish the Participant a written
statement under Code Sections 6041(d), 6051(a)(3) and 6052. Compensation must be
determined without regard to any rules under Code Section 3401(a) that limit the
remuneration included in wages based on the nature or location of the employment
or the services performed (such as the exception for agricultural labor in Code
Section 3401(a)(2)).1.8 p.2
For purposes of this Section, the determination of
Compensation shall be made by:
(a) including amounts which are contributed by the
Employer pursuant to a salary reduction agreement and which
are not includible in the gross income of the Participant
under Code Sections 125, 402(e)(3), 402(h)(1)(B), 403(b) or
457(b), and Employee contributions described in Code Section
414(h)(2) that are treated as Employer contributions.
For a Participant's initial year of participation,
Compensation shall be recognized for the entire Plan Year.
Compensation in excess of $150,000 shall be disregarded. Such
amount shall be adjusted for increases in the cost of living in accordance with
Code Section 401(a)(17), except that the dollar increase in effect on January 1
of any calendar year shall be effective for the Plan Year beginning with or
within such calendar year. For any short Plan Year the Compensation limit shall
be an amount equal to the Compensation limit for the calendar year in which the
Plan Year begins multiplied by the ratio obtained by dividing the number of full
months in the short Plan Year by twelve (12).
For purposes of this Section, if the Plan is a plan described
in Code Section 413(c) or 414(f) (a plan maintained by more than one Employer),
the limitation applies separately with respect to the Compensation of any
Participant from each Employer maintaining the Plan.
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If, in connection with the adoption of this amendment and
restatement, the definition of Compensation has been modified, then, for Plan
Years prior to the Plan Year which includes the adoption date of this amendment
and restatement, Compensation means compensation determined pursuant to the Plan
then in effect.
1.9 "Contract" or "Policy" means any life insurance policy, retirement income
or annuity policy or annuity contract (group or individual) issued pursuant to
the terms of the Plan.
1.10 "Deferred Compensation" with respect to any Participant means the amount of
the Participant's total Compensation which has been contributed to the Plan in
accordance with the Participant's deferral election pursuant to Section 4.2
excluding any such amounts distributed as excess "annual additions" pursuant to
Section 4.10(a).
1.11 "Early Retirement Date." This Plan does not provide for a retirement date
prior to Normal Retirement Date.1.11 p.3
1.12 "Elective Contribution" means the Employer contributions to the Plan of
Deferred Compensation excluding any such amounts distributed as excess "annual
additions" pursuant to Section 4.10(a). In addition, any Employer Qualified
Non-Elective Contribution made pursuant to Section 4.1(c) and Section 4.6(b)
which is used to satisfy the "Actual Deferral Percentage" tests shall be
considered an Elective Contribution for purposes of the Plan. Any contributions
deemed to be Elective Contributions (whether or not used to satisfy the "Actual
Deferral Percentage" tests) shall be subject to the requirements of Sections
4.2(b) and 4.2(c) and shall further be required to satisfy the nondiscrimination
requirements of Regulation 1.401(k)-1(b)(5), the provisions of which are
specifically incorporated herein by reference.
1.13 "Eligible Employee" means any Employee.1.13 p.3
Employees who are Leased Employees within the meaning of Code
Sections 414(n)(2) and 414(o)(2) shall not be eligible to participate in this
Plan.
Employees who are nonresident aliens (within the meaning of
Code Section 7701(b)(1)(B)) and who receive no earned income (within the meaning
of Code Section 911(d)(2)) from the Employer which constitutes income from
sources within the United States (within the meaning of Code Section 861(a)(3))
shall not be eligible to participate in this Plan.
Employees of Affiliated Employers shall not be eligible to
participate in this Plan unless such Affiliated Employers have specifically
adopted this Plan in writing.
1.14 "Employee" means any person who is employed by the Employer or Affiliated
Employer. Employee shall include Leased Employees within the meaning of Code
Sections 414(n)(2) and 414(o)(2) unless such Leased Employees are covered by a
plan described in Code Section 414(n)(5) and such Leased Employees do not
constitute more than 20% of the recipient's non-highly compensated work force.
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1.15 "Employer" means Ameritrade Holding Corporation and any successor which
shall maintain this Plan; and any predecessor which has maintained this Plan.
The Employer is a corporation, with principal offices in the State of Nebraska.
In addition, where appropriate, the term Employer shall include any
Participating Employer (as defined in Section 11.1) which shall adopt this Plan.
1.16 "Excess Aggregate Contributions" means, with respect to any Plan Year, the
excess of the aggregate amount of the Employer matching contributions made
pursuant to Section 4.1(b) and any qualified non-elective contributions or
elective deferrals taken into account pursuant to Section 4.7(c) on behalf of
Highly Compensated Participants for such Plan Year, over the maximum amount of
such contributions permitted under the limitations of Section 4.7(a) (determined
by reducing contributions made on behalf of Highly Compensated Participants in
order of the actual contribution ratios beginning with the highest of such
ratios).
1.17 "Excess Compensation" with respect to any Participant means the
Participant's Compensation which is in excess of the Taxable Wage Base. For any
short year, the Taxable Wage Base shall be reduced by a fraction, the numerator
of which is the number of full months in the short year and the denominator of
which is twelve (12).
1.18 "Excess Contributions" means, with respect to a Plan Year, the excess of
Elective Contributions used to satisfy the "Actual Deferral Percentage" tests
made on behalf of Highly Compensated Participants for the Plan Year over the
maximum amount of such contributions permitted under Section 4.5(a) (determined
by reducing contributions made on behalf of Highly Compensated Participants in
order of the actual deferral ratios beginning with the highest of such ratios).
Excess Contributions shall be treated as an "annual addition" pursuant to
Section 4.9(b).
1.19 "Excess Deferred Compensation" means, with respect to any taxable year of a
Participant, the excess of the aggregate amount of such Participant's Deferred
Compensation and the elective deferrals pursuant to Section 4.2(f) actually made
on behalf of such Participant for such taxable year, over the dollar limitation
provided for in Code Section 402(g), which is incorporated herein by reference.
Excess Deferred Compensation shall be treated as an "annual addition" pursuant
to Section 4.9(b) when contributed to the Plan unless distributed to the
affected Participant not later than the first April 15th following the close of
the Participant's taxable year. Additionally, for purposes of Sections 9.2 and
4.4(f), Excess Deferred Compensation shall continue to be treated as Employer
contributions even if distributed pursuant to Section 4.2(f). However, Excess
Deferred Compensation of Non-Highly Compensated Participants is not taken into
account for purposes of Section 4.5(a) to the extent such Excess Deferred
Compensation occurs pursuant to Section 4.2(d).
1.20 "Fiduciary" means any person who (a) exercises any discretionary authority
or discretionary control respecting management of the Plan or exercises any
authority or control respecting management or disposition of its assets, (b)
renders investment advice for a fee or other compensation, direct or indirect,
with respect to any monies or other property of the
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Plan or has any authority or responsibility to do so, or (c) has any
discretionary authority or discretionary responsibility in the administration of
the Plan.
1.21 "Fiscal Year" means the Employer's accounting year of 12 months commencing
on January 1st of each year and ending the following December 31st.
1.22 "Forfeiture" means that portion of a Participant's Account that is not
Vested, and occurs on the last day of the Plan Year in which the Participant
incurs five (5) consecutive 1-Year Breaks in Service. In addition, the term
Forfeiture shall also include amounts deemed to be Forfeitures pursuant to any
other provision of this Plan.
1.23 "Former Participant" means a person who has been a Participant, but who has
ceased to be a Participant for any reason.
1.24 "415 Compensation" with respect to any Participant means such Participant's
wages as defined in Code Section 3401(a) and all other payments of compensation
by the Employer (in the course of the Employer's trade or business) for a Plan
Year for which the Employer is required to furnish the Participant a written
statement under Code Sections 6041(d), 6051(a)(3) and 6052. "415 Compensation"
must be determined without regard to any rules under Code Section 3401(a) that
limit the remuneration included in wages based on the nature or location of the
employment or the services performed (such as the exception for agricultural
labor in Code Section 3401(a)(2)).
For Plan Years beginning after December 31, 1997, for purposes
of this Section, the determination of "415 Compensation" shall include any
elective deferral (as defined in Code Section 402(g)(3)), and any amount which
is contributed or deferred by the Employer at the election of the Participant
and which is not includible in the gross income of the Participant by reason of
Code Sections 125 or 457.
If, in connection with the adoption of this amendment and
restatement, the definition of "415 Compensation" has been modified, then, for
Plan Years prior to the Plan Year which includes the adoption date of this
amendment and restatement, "415 Compensation" means compensation determined
pursuant to the Plan then in effect.
1.25 "414(s) Compensation" with respect to any Participant means such
Participant's "415 Compensation" paid during a Plan Year. The amount of "414(s)
Compensation" with respect to any Participant shall include "414(s)
Compensation" for the entire twelve (12) month period ending on the last day of
such Plan Year.
For purposes of this Section, the determination of "414(s)
Compensation" shall be made by including amounts which are contributed by the
Employer pursuant to a salary reduction agreement and which are not includible
in the gross income of the Participant under Code Sections 125, 402(e)(3),
402(h)(1)(B), 403(b) or 457(b), and Employee contributions described in Code
Section 414(h)(2) that are treated as Employer contributions.
<PAGE> 7
"414(s) Compensation" in excess of $150,000 shall be
disregarded. Such amount shall be adjusted for increases in the cost of living
in accordance with Code Section 401(a)(17), except that the dollar increase in
effect on January 1 of any calendar year shall be effective for the Plan Year
beginning with or within such calendar year. For any short Plan Year the "414(s)
Compensation" limit shall be an amount equal to the "414(s) Compensation" limit
for the calendar year in which the Plan Year begins multiplied by the ratio
obtained by dividing the number of full months in the short Plan Year by twelve
(12).
If, in connection with the adoption of this amendment and
restatement, the definition of "414(s) Compensation" has been modified, then,
for Plan Years prior to the Plan Year which includes the adoption date of this
amendment and restatement, "414(s) Compensation" means compensation determined
pursuant to the Plan then in effect.
1.26 "Highly Compensated Employee" means, for Plan Years beginning after
December 31, 1996, an Employee described in Code Section 414(q) and the
Regulations thereunder, and generally means an Employee who performed services
for the Employer during the "determination year" and is in one or more of the
following groups:1.26 p.6
(a) Employees who at any time during the
"determination year" or "look-back year" were "five percent
owners" as defined in Section 1.32(c).
(b) Employees who received "415 Compensation" during
the "look-back year" from the Employer in excess of $80,000.
The "determination year" shall be the Plan Year for which
testing is being performed, and the "look-back year" shall be the immediately
preceding twelve-month period.
For purposes of this Section, the determination of "415
Compensation" shall be made by including amounts which are contributed by the
Employer pursuant to a salary reduction agreement and which are not includible
in the gross income of the Participant under Code Sections 125, 402(e)(3),
402(h)(1)(B), 403(b) or 457(b), and Employee contributions described in Code
Section 414(h)(2) that are treated as Employer contributions. Additionally, the
dollar threshold amount specified in (b) above shall be adjusted at such time
and in the same manner as under Code Section 415(d), except that the base period
shall be the calendar quarter ending September 30, 1996. In the case of such an
adjustment, the dollar limit which shall be applied is the limit for the
calendar year in which the "look-back year" begins.
In determining who is a Highly Compensated Employee, Employees
who are non-resident aliens and who received no earned income (within the
meaning of Code Section 911(d)(2)) from the Employer constituting United States
source income within the meaning of Code Section 861(a)(3) shall not be treated
as Employees. Additionally, all Affiliated Employers shall be taken into account
as a single employer and Leased Employees within the meaning of Code Sections
414(n)(2) and 414(o)(2) shall be considered Employees unless such Leased
Employees are covered by a plan described in Code Section 414(n)(5) and are not
covered in any qualified plan maintained by the Employer. The exclusion of
Leased Employees for this purpose shall be applied on a uniform and consistent
basis for all of the
<PAGE> 8
Employer's retirement plans. Highly Compensated Former Employees shall be
treated as Highly Compensated Employees without regard to whether they performed
services during the "determination year."
1.27 "Highly Compensated Former Employee" means a former Employee who had a
separation year prior to the "determination year" and was a Highly Compensated
Employee in the year of separation from service or in any "determination year"
after attaining age 55. Notwithstanding the foregoing, an Employee who separated
from service prior to 1987 will be treated as a Highly Compensated Former
Employee only if during the separation year (or year preceding the separation
year) or any year after the Employee attains age 55 (or the last year ending
before the Employee's 55th birthday), the Employee either received "415
Compensation" in excess of $50,000 or was a "five percent owner." For purposes
of this Section, "determination year," "415 Compensation" and "five percent
owner" shall be determined in accordance with Section 1.26. Highly Compensated
Former Employees shall be treated as Highly Compensated Employees. The method
set forth in this Section for determining who is a "Highly Compensated Former
Employee" shall be applied on a uniform and consistent basis for all purposes
for which the Code Section 414(q) definition is applicable.
1.28 "Highly Compensated Participant" means any Highly Compensated Employee who
is eligible to participate in the Plan.
1.29 "Hour of Service" means (1) each hour for which an Employee is directly or
indirectly compensated or entitled to compensation by the Employer for the
performance of duties (these hours will be credited to the Employee for the
computation period in which the duties are performed); (2) each hour for which
an Employee is directly or indirectly compensated or entitled to compensation by
the Employer (irrespective of whether the employment relationship has
terminated) for reasons other than performance of duties (such as vacation,
holidays, sickness, jury duty, disability, lay-off, military duty or leave of
absence) during the applicable computation period (these hours will be
calculated and credited pursuant to Department of Labor regulation 2530.200b-2
which is incorporated herein by reference); (3) each hour for which back pay is
awarded or agreed to by the Employer without regard to mitigation of damages
(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). The same Hours of
Service shall not be credited both under (1) or (2), as the case may be, and
under (3).
Notwithstanding the above, (i) no more than 501 Hours of
Service are required to be credited to an Employee on account of any single
continuous period during which the Employee performs no duties (whether or not
such period occurs in a single computation period); (ii) an hour for which an
Employee is directly or indirectly paid, or entitled to payment, on account of a
period during which no duties are performed is not required to be credited to
the Employee if such payment is made or due under a plan maintained solely for
the purpose of complying with applicable worker's compensation, or unemployment
compensation or disability insurance laws; and (iii) Hours of Service are not
required to be
<PAGE> 9
credited for a payment which solely reimburses an Employee for medical or
medically related expenses incurred by the Employee.
For purposes of this Section, a payment shall be deemed to be
made by or due from the Employer regardless of whether such payment is made by
or due from the Employer directly, or indirectly through, among others, a trust
fund, or insurer, to which the Employer contributes or pays premiums and
regardless of whether contributions made or due to the trust fund, insurer, or
other entity are for the benefit of particular Employees or are on behalf of a
group of Employees in the aggregate.
For purposes of this Section, Hours of Service will be
credited for employment with other Affiliated Employers. The provisions of
Department of Labor regulations 2530.200b-2(b) and (c) are incorporated herein
by reference.
1.30 "Income" means the income or losses allocable to Excess Deferred
Compensation, Excess Contributions or Excess Aggregate Contributions which
amount shall be allocated in the same manner as income or losses are allocated
pursuant to Section 4.4(e).
1.31 "Investment Manager" means an entity that (a) has the power to manage,
acquire, or dispose of Plan assets and (b) acknowledges fiduciary responsibility
to the Plan in writing. Such entity must be a person, firm, or corporation
registered as an investment adviser under the Investment Advisers Act of 1940, a
bank, or an insurance company.
1.32 "Key Employee" means an Employee as defined in Code Section 416(i) and the
Regulations thereunder. Generally, any Employee or former Employee (as well as
each of his Beneficiaries) is considered a Key Employee if he, at any time
during the Plan Year that contains the "Determination Date" or any of the
preceding four (4) Plan Years, has been included in one of the following
categories:
(a) an officer of the Employer (as that term is
defined within the meaning of the Regulations under Code
Section 416) having annual "415 Compensation" greater than 50
percent of the amount in effect under Code Section
415(b)(1)(A) for any such Plan Year.
(b) one of the ten employees having annual "415
Compensation" from the Employer for a Plan Year greater than
the dollar limitation in effect under Code Section
415(c)(1)(A) for the calendar year in which such Plan Year
ends and owning (or considered as owning within the meaning of
Code Section 318) both more than one-half percent interest and
the largest interests in the Employer.
(c) 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 five
percent (5%) of the outstanding stock of the Employer or stock
possessing more than five percent (5%) of the total combined
voting power of all stock of the Employer or, in the case of
an
<PAGE> 10
unincorporated business, any person who owns more than five
percent (5%) of the capital or profits interest in the
Employer. In determining percentage ownership hereunder,
employers that would otherwise be aggregated under Code
Sections 414(b), (c), (m) and (o) shall be treated as separate
employers.1.32(c) p.9
(d) a "one percent owner" of the Employer having an
annual "415 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 one percent (1%) of the outstanding stock of the
Employer or stock possessing more than one percent (1%) of the
total combined voting power of all stock of the Employer or,
in the case of an unincorporated business, any person who owns
more than one percent (1%) of the capital or profits interest
in the Employer. In determining percentage ownership
hereunder, employers that would otherwise be aggregated under
Code Sections 414(b), (c), (m) and (o) shall be treated as
separate employers. However, in determining whether an
individual has "415 Compensation" of more than $150,000, "415
Compensation" from each employer required to be aggregated
under Code Sections 414(b), (c), (m) and (o) shall be taken
into account.
For purposes of this Section, the determination of "415
Compensation" shall be made by including amounts which are contributed by the
Employer pursuant to a salary reduction agreement and which are not includible
in the gross income of the Participant under Code Sections 125, 402(e)(3),
402(h)(1)(B), 403(b) or 457(b), and Employee contributions described in Code
Section 414(h)(2) that are treated as Employer contributions.
1.33 "Late Retirement Date" means the first day of the month coinciding with or
next following a Participant's actual Retirement Date after having reached his
Normal Retirement Date.
1.34 "Leased Employee" means, for Plan Years beginning after December 31, 1996,
any person (other than an Employee of the recipient) who pursuant to an
agreement between the recipient and any other person ("leasing organization")
has performed services for the recipient (or for the recipient and related
persons determined in accordance with Code Section 414(n)(6)) on a substantially
full time basis for a period of at least one year, and such services are
performed under primary direction or control by the recipient employer.
Contributions or benefits provided a Leased Employee by the leasing organization
which are attributable to services performed for the recipient employer shall be
treated as provided by the recipient employer. A Leased Employee shall not be
considered an Employee of the recipient:
<PAGE> 11
(a) if such employee is covered by a money
purchase pension plan providing:
(1) a non-integrated employer contribution rate of at
least 10% of compensation, as defined in Code Section
415(c)(3), but including amounts which are
contributed by the Employer pursuant to a salary
reduction agreement and which are not includible in
the gross income of the Participant under Code
Sections 125, 402(e)(3), 402(h)(1)(B), 403(b) or
457(b), and Employee contributions described in Code
Section 414(h)(2) that are treated as Employer
contributions.
(2) immediate participation; and
(3) full and immediate vesting; and
(b) if Leased Employees do not constitute more
than 20% of the recipient's non-highly compensated work
force.
1.35 "Non-Elective Contribution" means the Employer contributions to the Plan
excluding, however, contributions made pursuant to the Participant's deferral
election provided for in Section 4.2 and any Qualified Non-Elective Contribution
used in the "Actual Deferral Percentage" tests.
1.36 "Non-Highly Compensated Participant" means any Participant who is not a
Highly Compensated Employee. However, for the Plan Year prior to the first Plan
Year of this amendment and restatement, for the purposes of Section 4.5(a) and
Section 4.6, if the prior year testing method is used, a Non-Highly Compensated
Participant shall be determined using the definition of highly compensated
employee in effect for the preceding Plan Year.
1.37 "Non-Key Employee" means any Employee or former Employee (and his
Beneficiaries) who is not a Key Employee.
1.38 "Normal Retirement Age" means the Participant's 65th birthday, or his 5th
anniversary of joining the Plan, if later. A Participant shall become fully
Vested in his Participant's Account upon attaining his Normal Retirement Age.
1.39 "Normal Retirement Date" means the first day of the month coinciding with
or next following the Participant's Normal Retirement Age.1.39 p.1
1.40 "1-Year Break in Service" means the applicable computation period during
which an Employee has not completed more than 500 Hours of Service with the
Employer. Further, solely for the purpose of determining whether a Participant
has incurred a 1-Year Break in Service, Hours of Service shall be recognized for
"authorized leaves of absence" and "maternity and paternity leaves of absence."
Years of Service and 1-Year Breaks in Service shall be measured on the same
computation period.
<PAGE> 12
"Authorized leave of absence" means an unpaid, temporary
cessation from active employment with the Employer pursuant to an established
nondiscriminatory policy, whether occasioned by illness, military service, or
any other reason.
A "maternity or paternity leave of absence" means, for Plan
Years beginning after December 31, 1984, an absence from work for any period by
reason of the Employee's pregnancy, birth of the Employee's child, placement of
a child with the Employee in connection with the adoption of such child, or any
absence for the purpose of caring for such child for a period immediately
following such birth or placement. For this purpose, Hours of Service shall be
credited for the computation period in which the absence from work begins, only
if credit therefore is necessary to prevent the Employee from incurring a 1-Year
Break in Service, or, in any other case, in the immediately following
computation period. The Hours of Service credited for a "maternity or paternity
leave of absence" shall be those which would normally have been credited but for
such absence, or, in any case in which the Administrator is unable to determine
such hours normally credited, eight (8) Hours of Service per day. The total
Hours of Service required to be credited for a "maternity or paternity leave of
absence" shall not exceed 501.
1.41 "Participant" means any Eligible Employee who participates in the Plan and
has not for any reason become ineligible to participate further in the Plan.
1.42 "Participant Direction Procedures" means such instructions, guidelines or
policies, the terms of which are incorporated herein, as shall be established
pursuant to Section 4.12 and observed by the Administrator and applied to
Participants who have Participant Directed Accounts.
1.43 "Participant's Account" means the account established and maintained by the
Administrator for each Participant with respect to his total interest in the
Plan and Trust resulting from the Employer Non-Elective Contributions.
A separate accounting shall be maintained with respect to that
portion of the Participant's Account attributable to Employer matching
contributions made pursuant to Section 4.1(b), Employer discretionary
contributions made pursuant to Section 4.1(d) and any Employer Qualified
Non-Elective Contributions.
1.44 "Participant's Combined Account" means the total aggregate amount of each
Participant's Elective Account and Participant's Account.
1.45 "Participant's Directed Account" means that portion of a Participant's
interest in the Plan with respect to which the Participant has directed the
investment in accordance with the Participant Direction Procedure.
1.46 "Participant's Elective Account" means the account established and
maintained by the Administrator for each Participant with respect to his total
interest in the Plan and Trust resulting from the Employer Elective
Contributions used to satisfy the "Actual Deferral Percentage" tests. A separate
accounting shall be maintained with respect to that portion of the
<PAGE> 13
Participant's Elective Account attributable to such Elective Contributions
pursuant to Section 4.2 and any Employer Qualified Non-Elective Contributions.
1.47 "Plan" means this instrument, including all amendments thereto.
1.48 "Plan Year" means the Plan's accounting year of twelve (12) months
commencing on January 1st of each year and ending the following December 31st.
1.49 "Qualified Non-Elective Contribution" means any Employer contributions made
pursuant to Section 4.1(c) and Section 4.6(b) and Section 4.8(f). Such
contributions shall be considered an Elective Contribution for the purposes of
the Plan and may be used to satisfy the "Actual Deferral Percentage" tests or
the "Actual Contribution Percentage" tests.
1.50 "Regulation" means the Income Tax Regulations as promulgated by the
Secretary of the Treasury or his delegate, and as amended from time to time.
1.51 "Retired Participant" means a person who has been a Participant, but who
has become entitled to retirement benefits under the Plan.
1.52 "Retirement Date" means the date as of which a Participant retires for
reasons other than Total and Permanent Disability, whether such retirement
occurs on a Participant's Normal Retirement Date or Late Retirement Date (see
Section 6.1).
1.53 "Super Top Heavy Plan" means a plan described in Section 9.2(b).
1.54 "Taxable Wage Base" means, with respect to any Plan Year, the contribution
and benefit base in effect under Section 230 of the Social Security Act at the
beginning of the Plan Year.
1.55 "Terminated Participant" means a person who has been a Participant, but
whose employment has been terminated other than by death, Total and Permanent
Disability or retirement.
1.56 "Top Heavy Plan" means a plan described in Section 9.2(a).
1.57 "Top Heavy Plan Year" means a Plan Year during which the Plan is a Top
Heavy Plan.
1.58 "Total and Permanent Disability" means a physical or mental condition of a
Participant resulting from bodily injury, disease, or mental disorder which
renders him incapable of continuing any gainful occupation and which condition
constitutes total disability under the federal Social Security Acts.1.58 p.12
1.59 "Trustee" means the person or entity named as trustee herein or in any
separate trust forming a part of this Plan, and any successors.
<PAGE> 14
1.60 "Trust Fund" means the assets of the Plan and Trust as the same shall exist
from time to time.
1.61 "USERRA" means the Uniformed Services Employment and Reemployment Rights
Act of 1994. Notwithstanding any provision of this Plan to the contrary,
effective December 12, 1994, contributions, benefits and service credit with
respect to qualified military service will be provided in accordance with Code
Section 414(u).
1.62 "Valuation Date" means the Anniversary Date and such other date or dates
deemed necessary by the Administrator. The Valuation Date may include any day
during the Plan Year that the Trustee, any transfer agent appointed by the
Trustee or the Employer and any stock exchange used by such agent are open for
business.
1.63 "Vested" means the nonforfeitable portion of any account maintained on
behalf of a Participant.
1.64 "Year of Service" means the computation period of twelve (12) consecutive
months, herein set forth, during which an Employee has at least 1000 Hours of
Service.1.64 p.13
For purposes of eligibility for participation, the initial
computation period shall begin with the date on which the Employee first
performs an Hour of Service. The participation computation period beginning
after a 1-Year Break in Service shall be measured from the date on which an
Employee again performs an Hour of Service. The participation computation period
shall shift to the Plan Year which includes the anniversary of the date on which
the Employee first performed an Hour of Service. An Employee who is credited
with the required Hours of Service in both the initial computation period (or
the computation period beginning after a 1-Year Break in Service) and the Plan
Year which includes the anniversary of the date on which the Employee first
performed an Hour of Service, shall be credited with two (2) Years of Service
for purposes of eligibility to participate.
For vesting purposes, the computation periods shall be the
Plan Year, including periods prior to the Effective Date of the Plan.
The computation period shall be the Plan Year if not otherwise
set forth herein.
Notwithstanding the foregoing, for any short Plan Year, the
determination of whether an Employee has completed a Year of Service shall be
made in accordance with Department of Labor regulation 2530.203-2(c). However,
in determining whether an Employee has completed a Year of Service for benefit
accrual purposes in the short Plan Year, the number of the Hours of Service
required shall be proportionately reduced based on the number of full months in
the short Plan Year.
Years of Service with any Affiliated Employer shall be
recognized.
<PAGE> 15
ARTICLE II
ADMINISTRATION
2.1 POWERS AND RESPONSIBILITIES OF THE EMPLOYER
(a) In addition to the general powers and
responsibilities otherwise provided for in this Plan, the
Employer shall be empowered to appoint and remove the Trustee
and the Administrator from time to time as it deems necessary
for the proper administration of the Plan to ensure that the
Plan is being operated for the exclusive benefit of the
Participants and their Beneficiaries in accordance with the
terms of the Plan, the Code, and the Act. The Employer may
appoint counsel, specialists, advisers, agents (including any
nonfiduciary agent) and other persons as the Employer deems
necessary or desirable in connection with the exercise of its
fiduciary duties under this Plan. The Employer may compensate
such agents or advisers from the assets of the Plan as
fiduciary expenses (but not including any business (settlor)
expenses of the Employer), to the extent not paid by the
Employer.
(b) The Employer shall establish a "funding policy
and method," consistent with the objectives of this Plan and
with the requirements of Title I of the Act.i.e., or shall
appoint a qualified person to do so. The Employer or its
delegate shall communicate such needs and goals to the
Trustee.
(c) The Employer shall periodically review the
performance of any Fiduciary or other person to whom duties
have been delegated or allocated by it under the provisions of
this Plan or pursuant to procedures established hereunder.
This requirement may be satisfied by formal periodic review by
the Employer or by a qualified person specifically designated
by the Employer, through day-to-day conduct and evaluation, or
through other appropriate ways.
2.2 DESIGNATION OF ADMINISTRATIVE AUTHORITY
The Employer shall be the Administrator. The Employer will
appoint any person, including, but not limited to, the Employees of the
Employer, to perform the duties of the Administrator. Any person so appointed
shall signify his acceptance by filing written acceptance with the Employer.
Upon the resignation or removal of any individual performing the duties of the
Administrator, the Employer may designate a successor.
2.3 POWERS AND DUTIES OF THE ADMINISTRATOR
The primary responsibility of the Administrator is to
administer the Plan for the exclusive benefit of the Participants and their
Beneficiaries, subject to the specific terms of the Plan. The Administrator
shall administer the Plan in accordance with its terms and shall have the power
and discretion to construe the terms of the Plan and to determine all questions
arising in connection with the administration, interpretation, and application
of the Plan. Any such determination by the Administrator shall be conclusive and
binding upon all persons.
<PAGE> 16
The Administrator may establish procedures, correct any defect, supply any
information, or reconcile any inconsistency in such manner and to such extent as
shall be deemed necessary or advisable to carry out the purpose of the Plan. The
Administrator shall have all powers necessary or appropriate to accomplish his
duties under this Plan.
The Administrator shall be charged with the duties of the
general administration of the Plan, including, but not limited to, the
following:
(a) the discretion to determine all questions
relating to the eligibility of Employees to participate or
remain a Participant hereunder and to receive benefits under
the Plan;
(b) to compute, certify, and direct the Trustee with
respect to the amount and the kind of benefits to which any
Participant shall be entitled hereunder;
(c) to authorize and direct the Trustee with respect
to all nondiscretionary or otherwise directed disbursements
from the Trust;
(d) to maintain all necessary records for the
administration of the Plan;
(e) to conclusively interpret the provisions of the
Plan and to make and publish such rules for regulation of the
Plan as are consistent with the terms hereof;
(f) to determine the size and type of any Contract to
be purchased from any insurer, and to designate the insurer
from which such Contract shall be purchased;
(g) to compute and certify to the Employer and to the
Trustee from time to time the sums of money necessary or
desirable to be contributed to the Plan;
(h) to consult with the Employer and the Trustee
regarding the short and long-term liquidity needs of the Plan
in order that the Trustee can exercise any investment
discretion in a manner designed to accomplish specific
objectives;
(i) to prepare and implement a procedure to notify
Eligible Employees that they may elect to have a portion of
their Compensation deferred or paid to them in cash;
(j) to assist any Participant regarding his rights,
benefits, or elections available under the Plan.
<PAGE> 17
2.4 RECORDS AND REPORTS
The Administrator shall keep a record of all actions taken and
shall keep all other books of account, records, policies, and other data that
may be necessary for proper administration of the Plan and shall be responsible
for supplying all information and reports to the Internal Revenue Service,
Department of Labor, Participants, Beneficiaries and others as required by law.
2.5 APPOINTMENT OF ADVISERS
The Administrator, or the Trustee, may appoint counsel,
specialists, advisers, agents (including nonfiduciary agents) and other persons
as the Administrator or the Trustee deems necessary or desirable in connection
with their respective duties under the Plan.
2.6 PAYMENT OF EXPENSES
All expenses of administration may be paid out of the Trust
Fund unless paid by the Employer. Such expenses shall include any expenses
incident to the functioning of the Administrator, or any person or persons
retained or appointed by any Named Fiduciary incident to the exercise of their
duties under the Plan, including, but not limited to, fees of accountants,
counsel, Investment Managers, agents (including nonfiduciary agents) appointed
for the purpose of assisting the Administrator or the Trustee in carrying out
the instructions of Participants as to the directed investment of their accounts
and other specialists and their agents, and other costs of administering the
Plan. Until paid, the expenses shall constitute a liability of the Trust Fund.
2.7 CLAIMS PROCEDURE
Claims for benefits under the Plan may be filed in writing
with the Administrator. Written notice of the disposition of a claim shall be
furnished to the claimant within 90 days but no later than 180 days if special
circumstances exist after the application is filed. In the event the claim is
denied, the reasons for the denial shall be specifically set forth in the notice
in language calculated to be understood by the claimant, pertinent provisions of
the Plan shall be cited, and, where appropriate, an explanation as to how the
claimant can perfect the claim will be provided. In addition, the claimant shall
be furnished with an explanation of the Plan's claims review procedure.
2.8 CLAIMS REVIEW PROCEDURE
Any Employee, former Employee, or Beneficiary of either, who
has been denied a benefit by a decision of the Administrator pursuant to Section
2.7 shall be entitled to request the Administrator to give further consideration
to his claim by filing with the Administrator (on a form which may be obtained
from the Administrator) a request for a hearing. Such request, together with a
written statement of the reasons why the claimant believes his claim should be
allowed, shall be filed with the Administrator no later than 60 days after
receipt of the written notification provided for in Section 2.7. The
Administrator
<PAGE> 18
shall then conduct a hearing within the next 60 days, at which the claimant may
be represented by an attorney or any other representative of his choosing and at
which the claimant shall have an opportunity to submit written and oral evidence
and arguments in support of his claim. At the hearing (or prior thereto upon 5
business days written notice to the Administrator) the claimant or his
representative shall have an opportunity to review all documents in the
possession of the Administrator which are pertinent to the claim at issue and
its disallowance. Either the claimant or the Administrator may cause a court
reporter to attend the hearing and record the proceedings. In such event, a
complete written transcript of the proceedings shall be furnished to both
parties by the court reporter. The full expense of any such court reporter and
such transcripts shall be borne by the party causing the court reporter to
attend the hearing. A final decision as to the allowance of the claim shall be
made by the Administrator within 60 days of receipt of the appeal (unless there
has been an extension of 60 days due to special circumstances, provided the
delay and the special circumstances occasioning it are communicated to the
claimant within the 60 day period). Such communication shall be written in a
manner calculated to be understood by the claimant and shall include specific
reasons for the decision and specific references to the pertinent Plan
provisions on which the decision is based.
<PAGE> 19
ARTICLE III
ELIGIBILITY
3.1 CONDITIONS OF ELIGIBILITY
Any Eligible Employee shall be eligible to participate in
salary reduction and Employer matching contributions hereunder on the date of
his employment with the Employer and attainment of age 21. However, any Eligible
Employee who has completed one (1) Year of Service and attained age 21 shall be
eligible to participate in Employer Qualified Non-Elective Contributions and
Employer discretionary contributions hereunder as of the date he has satisfied
such requirements.
3.2 EFFECTIVE DATE OF PARTICIPATION
An Eligible Employee shall become a Participant effective as
of the first day of the month coinciding with or next following the date on
which such Employee met the eligibility requirements of Section 3.1, provided
said Employee was still employed as of such date (or if not employed on such
date, as of the date of rehire if a 1-Year Break in Service has not occurred).
However, any Eligible Employee hired on or before December 31, 1998, shall
become a Participant effective as of the date on which such Employee met the
eligibility requirements of Section 3.1, provided said Employee was still
employed as of such date.
In the event an Employee who is not a member of an eligible
class of Employees becomes a member of an eligible class, such Employee will
participate immediately if such Employee has satisfied the minimum age and
service requirements and would have otherwise previously become a Participant.
3.3 DETERMINATION OF ELIGIBILITY
The Administrator shall determine the eligibility of each
Employee for participation in the Plan based upon information furnished by the
Employer. Such determination shall be conclusive and binding upon all persons,
as long as the same is made pursuant to the Plan and the Act. Such determination
shall be subject to review per Section 2.8.
3.4 TERMINATION OF ELIGIBILITY
(a) In the event a Participant shall go from a
classification of an Eligible Employee to an ineligible
Employee, such Former Participant shall continue to vest in
his interest in the Plan for each Year of Service completed
while a noneligible Employee, until such time as his
Participant's Account shall be forfeited or distributed
pursuant to the terms of the Plan. Additionally, his interest
in the Plan shall continue to share in the earnings of the
Trust Fund.
<PAGE> 20
(b) In the event a Participant is no longer a member
of an eligible class of Employees and becomes ineligible to
participate, such Employee will participate immediately upon
returning to an eligible class of Employees.
3.5 OMISSION OF ELIGIBLE EMPLOYEE
If, in any Plan Year, any Employee who should be included as a
Participant in the Plan is erroneously omitted and discovery of such omission is
not made until after a contribution by his Employer for the year has been made,
the Employer shall make a subsequent contribution with respect to the omitted
Employee in the amount which the said Employer would have contributed with
respect to him had he not been omitted. Such contribution shall be made
regardless of whether or not it is deductible in whole or in part in any taxable
year under applicable provisions of the Code.
3.6 INCLUSION OF INELIGIBLE EMPLOYEE
If, in any Plan Year, any person who should not have been
included as a Participant in the Plan is erroneously included and discovery of
such incorrect inclusion is not made until after a contribution for the year has
been made, the Employer shall not be entitled to recover the contribution made
with respect to the ineligible person regardless of whether or not a deduction
is allowable with respect to such contribution. In such event, the amount
contributed with respect to the ineligible person shall constitute a Forfeiture
(except for Deferred Compensation which shall be distributed to the ineligible
person) for the Plan Year in which the discovery is made.
ARTICLE IV
CONTRIBUTION AND ALLOCATION
4.1 FORMULA FOR DETERMINING EMPLOYER CONTRIBUTION
For each Plan Year, the Employer shall contribute to the Plan:
(a) The amount of the total salary reduction
elections of all Participants made pursuant to Section 4.2(a),
which amount shall be deemed an Employer Elective
Contribution.
(b) On behalf of each Participant who is eligible to
share in matching contributions for the Plan Year, beginning
July 1, 1999, a discretionary matching contribution equal to a
uniform percentage of each such Participant's Deferred
Compensation, the exact percentage, if any, to be determined
each year by the Employer, which amount, if any, shall be
deemed an Employer Non-Elective Contribution.
Except, however, in applying the matching percentage
specified above, only salary reductions up to a fixed
percentage of compensation or dollar
<PAGE> 21
amount as determined on an annual basis by resolution of the
Board of Directors shall be considered.
(c) On behalf of each Non-Highly Compensated
Participant who is eligible to share in the Qualified
Non-Elective Contribution for the Plan Year, beginning as of
July 1, 1999, a discretionary Qualified Non-Elective
Contribution equal to a uniform percentage of each eligible
individual's Compensation, the exact percentage, if any, to be
determined each year by the Employer. Any Employer Qualified
Non-Elective Contribution shall be deemed an Employer Elective
Contribution.
(d) A discretionary amount, which amount, if any,
shall be deemed an Employer Non-Elective Contribution.
(e) Additionally, to the extent necessary, the
Employer shall contribute to the Plan the amount necessary to
provide the top heavy minimum contribution. All contributions
by the Employer shall be made in cash.
4.2 PARTICIPANT'S SALARY REDUCTION ELECTION
(a) Each Participant may elect to defer beginning as
of July 1, 1999, his Compensation which would have been
received in the Plan Year, but for the deferral election, by
up to 15%. A deferral election (or modification of an earlier
election) may not be made with respect to Compensation which
is currently available on or before the date the Participant
executed such election. For purposes of this Section,
Compensation shall be determined prior to any reductions made
pursuant to Code Sections 125, 402(e)(3), 402(h)(1)(B), 403(b)
or 457(b), and Employee contributions described in Code
Section 414(h)(2) that are treated as Employer contributions.
The amount by which Compensation is reduced
shall be that Participant's Deferred Compensation and be
treated as an Employer Elective Contribution and allocated to
that Participant's Elective Account.
(b) The balance in each Participant's Elective
Account shall be fully Vested at all times and shall not be
subject to Forfeiture for any reason.
(c) Notwithstanding anything in the Plan to the
contrary, amounts held in the Participant's Elective Account
may not be distributable (including any offset of loans)
earlier than:
(1) a Participant's separation from service, Total
and Permanent Disability, or death;
(2) a Participant's attainment of age 59 1/2;
<PAGE> 22
(3) the termination of the Plan without the
establishment or existence of a "successor plan," as
that term is described in Regulation
1.401(k)-1(d)(3);
(4) the date of disposition by the Employer to an
entity that is not an Affiliated Employer of
substantially all of the assets (within the meaning
of Code Section 409(d)(2)) used in a trade or
business of such corporation if such corporation
continues to maintain this Plan after the disposition
with respect to a Participant who continues
employment with the corporation acquiring such
assets; or
(5) the date of disposition by the Employer or an
Affiliated Employer who maintains the Plan of its
interest in a subsidiary (within the meaning of Code
Section 409(d)(3)) to an entity which is not an
Affiliated Employer but only with respect to a
Participant who continues employment with such
subsidiary.
(d) For each Plan Year, a Participant's Deferred
Compensation made under this Plan and all other plans,
contracts or arrangements of the Employer maintaining this
Plan shall not exceed, during any taxable year of the
Participant, the limitation imposed by Code Section 402(g), as
in effect at the beginning of such taxable year. If such
dollar limitation is exceeded, a Participant will be deemed to
have notified the Administrator of such excess amount which
shall be distributed in a manner consistent with Section
4.2(f). The dollar limitation shall be adjusted annually
pursuant to the method provided in Code Section 415(d) in
accordance with Regulations.
(e) In the event a Participant has received a
hardship distribution pursuant to Regulation
1.401(k)-1(d)(2)(iv)(B) from any other plan maintained by the
Employer, then such Participant shall not be permitted to
elect to have Deferred Compensation contributed to the Plan on
his behalf for a period of twelve (12) months following the
receipt of the distribution. Furthermore, the dollar
limitation under Code Section 402(g) shall be reduced, with
respect to the Participant's taxable year following the
taxable year in which the hardship distribution was made, by
the amount of such Participant's Deferred Compensation, if
any, pursuant to this Plan (and any other plan maintained by
the Employer) for the taxable year of the hardship
distribution.
(f) If a Participant's Deferred Compensation under
this Plan together with any elective deferrals (as defined in
Regulation 1.402(g)-1(b)) under another qualified cash or
deferred arrangement (as defined in Code Section 401(k)), a
simplified employee pension (as defined in Code Section
408(k)), a salary reduction arrangement (within the meaning of
Code Section 3121(a)(5)(D)), a deferred compensation plan
under Code Section 457(b), or a trust described in Code
Section 501(c)(18) cumulatively exceed the limitation imposed
by Code Section 402(g) (as adjusted annually in
<PAGE> 23
accordance with the method provided in Code Section 415(d)
pursuant to Regulations) for such Participant's taxable
year, the Participant may, not later than March 1 following
the close of the Participant's taxable year, notify the
Administrator in writing of such excess and request that his
Deferred Compensation under this Plan be reduced by an
amount specified by the Participant. In such event, the
Administrator may direct the Trustee to distribute such
excess amount (and any Income allocable to such excess
amount) to the Participant not later than the first April
15th following the close of the Participant's taxable year.
Any distribution of less than the entire amount of Excess
Deferred Compensation and Income shall be treated as a pro
rata distribution of Excess Deferred Compensation and
Income. The amount distributed shall not exceed the
Participant's Deferred Compensation under the Plan for the
taxable year (and any Income allocable to such excess
amount). Any distribution on or before the last day of the
Participant's taxable year must satisfy each of the
following conditions:
(1) the distribution must be made after the date on
which the Plan received the Excess Deferred
Compensation;
(2) the Participant shall designate the distribution
as Excess Deferred Compensation; and
(3) the Plan must designate the distribution as a
distribution of Excess Deferred Compensation.
Any distribution made pursuant to this Section
4.2(f) shall be made first from unmatched Deferred
Compensation and, thereafter, from Deferred Compensation
which is matched. Matching contributions which relate to
such Deferred Compensation shall be forfeited.
(g) Notwithstanding Section 4.2(f) above, a
Participant's Excess Deferred Compensation shall be reduced,
but not below zero, by any distribution of Excess
Contributions pursuant to Section 4.6(a) for the Plan Year
beginning with or within the taxable year of the Participant.
(h) At Normal Retirement Date, or such other date
when the Participant shall be entitled to receive benefits,
the fair market value of the Participant's Elective Account
shall be used to provide additional benefits to the
Participant or his Beneficiary.
(i) Employer Elective Contributions made pursuant to
this Section may be segregated into a separate account for
each Participant in a federally insured savings account,
certificate of deposit in a bank or savings and loan
association, money market certificate, or other short-term
debt security acceptable to the Trustee until such time as the
allocations pursuant to Section 4.4 have been made.
<PAGE> 24
(j) The Employer and the Administrator shall
implement the salary reduction elections provided for herein
in accordance with the following:
(1) A Participant must make his initial salary
deferral election within a reasonable time, not to
exceed thirty (30) days, after entering the Plan
pursuant to Section 3.2. If the Participant fails to
make an initial salary deferral election within such
time, then such Participant may thereafter make an
election in accordance with the rules governing
modifications. The Participant shall make such an
election by entering into a salary reduction
agreement with the Employer and filing such agreement
with the Administrator. Such election shall initially
be effective beginning the first day of the month
following the acceptance of the salary reduction
agreement by the Administrator, shall not have
retroactive effect and shall remain in force until
revoked.
(2) A Participant may modify a prior election during
the Plan Year and concurrently make a new election by
giving notice to the Administrator within a
reasonable time before the pay period for which such
modification is to be effective. However,
modifications to a salary deferral election shall
only be permitted prior to the beginning of the first
day of the month of a Plan Year. Any modification
shall not have retroactive effect and shall remain in
force until revoked.
(3) A Participant may elect to prospectively revoke
his salary reduction agreement in its entirety at any
time during the Plan Year by providing the
Administrator with notice of such revocation (or upon
such shorter notice period as may be acceptable to
the Administrator). Such revocation shall become
effective as of the beginning of the first pay period
coincident with or next following the expiration of
the notice period. Furthermore, the termination of
the Participant's employment, or the cessation of
participation for any reason, shall be deemed to
revoke any salary reduction agreement then in effect,
effective immediately following the close of the pay
period within which such termination or cessation
occurs.
4.3 TIME OF PAYMENT OF EMPLOYER CONTRIBUTION
The Employer shall generally pay to the Trustee its
contribution to the Plan for each Plan Year within the time prescribed by law,
including extensions of time, for the filing of the Employer federal income tax
return for the Fiscal Year.
However, Employer Elective Contributions accumulated through
payroll deductions shall be paid to the Trustee as of the earliest date on which
such contributions can reasonably be segregated from the Employer general
assets, but in any event within ninety (90) days from the date on which such
amounts would otherwise have been payable to the
<PAGE> 25
Participant in cash. The provisions of Department of Labor regulations
2510.3-102 are incorporated herein by reference. Furthermore, any additional
Employer contributions which are allocable to the Participant's Elective Account
for a Plan Year shall be paid to the Plan no later than the twelve-month period
immediately following the close of such Plan Year.
4.4 ALLOCATION OF CONTRIBUTION, FORFEITURES AND EARNINGS
(a) The Administrator shall establish and maintain an
account in the name of each Participant to which the
Administrator shall credit as of each Anniversary Date all
amounts allocated to each such Participant as set forth
herein.
(b) The Employer shall provide the Administrator with
all information required by the Administrator to make a proper
allocation of the Employer contributions for each Plan Year.
Within a reasonable period of time after the date of receipt
by the Administrator of such information, the Administrator
shall allocate such contribution as follows:
(1) With respect to the Employer Elective
Contribution made pursuant to Section 4.1(a), to each
Participant's Elective Account in an amount equal to
each such Participant's Deferred Compensation for the
year.
(2) With respect to the Employer Matching
Contribution made pursuant to Section 4.1(b), to each
Participant's Account in accordance with Section
4.1(b).
All Participants who have completed more than 500
Hours of Service during the Plan Year and are
actively employed on the last day of the Plan Year
shall be eligible to share in Employer Matching for
the Plan Year.
(3) With respect to the Employer Qualified
Non-Elective Contribution made pursuant to Section
4.1(c), to each Participant's Elective Account when
used to satisfy the "Actual Deferral Percentage"
tests or Participant's Account in accordance with
Section 4.1(c).
Only Non-Highly Compensated Participants who have
completed a Year of Service during the Plan Year and
are actively employed on the last day of the Plan
Year shall be eligible to share in the Qualified
Non-Elective Contribution for the year.
(4) With respect to the Employer Non-Elective
Contribution made pursuant to Section 4.1(d), in the
following manner:
<PAGE> 26
(i) A dollar amount equal to 5.7% of the sum
of each Participant's total Compensation
plus Excess Compensation shall be allocated
to each Participant's Account. If the
Employer does not contribute such amount for
all Participants, each Participant will be
allocated a share of the contribution in the
same proportion that his total Compensation
plus his total Excess Compensation for the
Plan Year bears to the total Compensation
plus the total Excess Compensation of all
Participants for that year.
(ii) The balance of the Employer
Non-Elective Contribution over the amount
allocated above, if any, shall be allocated
to each Participant's Account in the same
proportion that his total Compensation for
the Plan Year bears to the total
Compensation of all Participants for such
year.
No other qualified plan or simplified
employee pension, as defined in Code Section 408(k),
maintained by the Employer shall (A) impute disparity
pursuant to Regulation 1.401(a)(4)-7 for any
Participant and (B) provide for permitted disparity
pursuant to Code Section 401(l).
Additionally, for Plan Years beginning after
December 31, 1994, the cumulative permitted disparity
limit for a Participant is 35 total cumulative
permitted disparity years. Total cumulative permitted
years means the number of years credited to the
Participant for allocation or accrual purposes under
this Plan, any other qualified plan or simplified
employee pension plan (whether or not terminated)
ever maintained by the Employer. For purposes of
determining the Participant's cumulative permitted
disparity limit, all years ending in the same
calendar year are treated as the same year. If the
Participant has not benefited under a Defined Benefit
or Target Benefit Plan for any year beginning after
December 31, 1993, the Participant has no cumulative
disparity limit.
Notwithstanding the preceding paragraphs,
any Participant whose cumulative permitted disparity
limit would exceed 35 will receive the allocation
above by substituting total Compensation for Excess
Compensation.
Only Participants who have completed a Year of
Service during the Plan Year and are actively
employed on the last day of the Plan Year shall be
eligible to share in the discretionary contribution
for the year.
(c) As of each Anniversary Date any amounts which
became Forfeitures since the last Anniversary Date shall be
allocated to Participants' Accounts and used to reduce the
applicable contribution of the Employer
<PAGE> 27
hereunder for the Plan Year in which such Forfeitures occur
in the following manner:
(1) Forfeitures attributable to Employer matching
contributions made pursuant to Section 4.1(b) shall
be used to reduce the Employer contribution for the
Plan Year in which such Forfeitures occur. If no
Employer matching contribution is made during the
Plan Year in which such Forfeitures occur, the
Forfeitures shall be allocated among the
Participants' Accounts of those Participants
otherwise eligible to share in the allocation of
Employer matching contributions in accordance with
Section 4.1(b) based upon the same proportion that
each such Participant's Salary Reduction
Contributions for the Plan Year bears to the total
Participants' Salary Reduction Contributions of all
such Participants for the Plan Year.
(2) Forfeitures attributable to Employer
discretionary contributions made pursuant to Section
4.1(d) shall be allocated among the Participants'
Accounts of Participants otherwise eligible to share
in the allocation of discretionary contributions for
the year in the same proportion that each such
Participant's Compensation for the year bears to the
total Compensation of all such Participants for the
year.
Provided, however, that in the event the
allocation of Forfeitures provided herein shall cause the
"annual addition" (as defined in Section 4.9) to any
Participant's Account to exceed the amount allowable by the
Code, the excess shall be reallocated in accordance with
Section 4.10.
(d) For any Top Heavy Plan Year, Non-Key Employees
not otherwise eligible to share in the allocation of
contributions and Forfeitures as provided above, shall receive
the minimum allocation provided for in Section 4.4(f) if
eligible pursuant to the provisions of Section 4.4(h).
(e) As of each Valuation Date, any earnings or losses
(net appreciation or net depreciation) of the Trust Fund shall
be allocated in the same proportion that each Participant's
and Former Participant's time weighted average nonsegregated
accounts bear to the total of all Participants' and Former
Participants' time weighted average nonsegregated accounts as
of such date. Earnings or losses with respect to a
Participant's Directed Account shall be allocated in
accordance with Section 4.12.
Participants' transfers from other qualified
plans deposited in the general Trust Fund shall share in any
earnings and losses (net appreciation or net depreciation) of
the Trust Fund in the same manner provided above. Each
segregated account maintained on behalf of a Participant shall
be credited or charged with its separate earnings and losses.
<PAGE> 28
(f) Minimum Allocations Required for Top Heavy Plan
Years: Notwithstanding the foregoing, for any Top Heavy Plan
Year, the sum of the Employer contributions and Forfeitures
allocated to the Participant's Combined Account of each
Non-Key Employee shall be equal to at least three percent (3%)
of such Non-Key Employee's "415 Compensation" (reduced by
contributions and forfeitures, if any, allocated to each
Non-Key Employee in any defined contribution plan included
with this plan in a Required Aggregation Group). However, if
(1) the sum of the Employer contributions and Forfeitures
allocated to the Participant's Combined Account of each Key
Employee for such Top Heavy Plan Year is less than three
percent (3%) of each Key Employee's "415 Compensation" and (2)
this Plan is not required to be included in an Aggregation
Group to enable a defined benefit plan to meet the
requirements of Code Section 401(a)(4) or 410, the sum of the
Employer contributions and Forfeitures allocated to the
Participant's Combined Account of each Non-Key Employee shall
be equal to the largest percentage allocated to the
Participant's Combined Account of any Key Employee. However,
in determining whether a Non-Key Employee has received the
required minimum allocation, such Non-Key Employee's Deferred
Compensation and matching contributions needed to satisfy the
"Actual Contribution Percentage" tests pursuant to Section
4.7(a) shall not be taken into account.
However, no such minimum allocation shall be
required in this Plan for any Non-Key Employee who
participates in another defined contribution plan subject to
Code Section 412 included with this Plan in a Required
Aggregation Group.
(g) For purposes of the minimum allocations set forth
above, the percentage allocated to the Participant's Combined
Account of any Key Employee shall be equal to the ratio of the
sum of the Employer contributions and Forfeitures allocated on
behalf of such Key Employee divided by the "415 Compensation"
for such Key Employee.
(h) For any Top Heavy Plan Year, the minimum
allocations set forth above shall be allocated to the
Participant's Combined Account of all Non-Key Employees who
are Participants and who are employed by the Employer on the
last day of the Plan Year, including Non-Key Employees who
have (1) failed to complete a Year of Service; and (2)
declined to make mandatory contributions (if required) or, in
the case of a cash or deferred arrangement, elective
contributions to the Plan.
(i) For the purposes of this Section, "415
Compensation" shall be limited to $150,000. Such amount
shall be adjusted for increases in the cost of living in
accordance with Code Section 401(a)(17), except that the
dollar increase in effect on January 1 of any calendar year
shall be effective for the Plan Year beginning with or
within such calendar year. For any short Plan Year the "415
Compensation" limit shall be an amount equal to the "415
<PAGE> 29
Compensation" limit for the calendar year in which the Plan
Year begins multiplied by the ratio obtained by dividing the
number of full months in the short Plan Year by twelve (12).
(j) Notwithstanding anything herein to the contrary,
Participants who terminated employment for any reason during
the Plan Year shall share in the salary reduction
contributions made by the Employer for the year of termination
without regard to the Hours of Service credited.
(k) If a Former Participant is reemployed after five
(5) consecutive 1-Year Breaks in Service, then separate
accounts shall be maintained as follows:
(1) one account for nonforfeitable benefits
attributable to pre-break service; and
(2) one account representing his status in the Plan
attributable to post-break service.
4.5 ACTUAL DEFERRAL PERCENTAGE TESTS
(a) Maximum Annual Allocation: For each Plan Year
beginning after December 31, 1996, the annual allocation
derived from Employer Elective Contributions to a Highly
Compensated Participant's Elective Account shall satisfy one
of the following tests:
(1) The "Actual Deferral Percentage" for the Highly
Compensated Participant group shall not be more than
the "Actual Deferral Percentage" of the Non-Highly
Compensated Participant group (for the preceding Plan
Year if the prior year testing method is used to
calculate the "Actual Deferral Percentage" for the
Non-Highly Compensated Participant group) multiplied
by 1.25, or
(2) The excess of the "Actual Deferral Percentage"
for the Highly Compensated Participant group over the
"Actual Deferral Percentage" for the Non-Highly
Compensated Participant group (for the preceding Plan
Year if the prior year testing method is used to
calculate the "Actual Deferral Percentage" for the
Non-Highly Compensated Participant group) shall not
be more than two percentage points. Additionally, the
"Actual Deferral Percentage" for the Highly
Compensated Participant group shall not exceed the
"Actual Deferral Percentage" for the Non-Highly
Compensated Participant group (for the preceding Plan
Year if the prior year testing method is used to
calculate the "Actual Deferral Percentage" for the
Non-Highly Compensated Participant group) multiplied
by 2. The provisions of Code
<PAGE> 30
Section 401(k)(3) and Regulation 1.401(k)-1(b) are
incorporated herein by reference.
However, in order to prevent the multiple use of the
alternative method described in (2) above and in Code
Section 401(m)(9)(A), any Highly Compensated
Participant eligible to make elective deferrals
pursuant to Section 4.2 and to make Employee
contributions or to receive matching contributions
under this Plan or under any other plan maintained by
the Employer or an Affiliated Employer shall have a
combination of his Elective Contributions and
Employer matching contributions reduced pursuant to
Section 4.6(a) and Regulation 1.401(m)-2, the
provisions of which are incorporated herein by
reference.
(b) For the purposes of this Section "Actual Deferral
Percentage" means, with respect to the Highly Compensated
Participant group and Non-Highly Compensated Participant group
for a Plan Year, the average of the ratios, calculated
separately for each Participant in such group, of the amount
of Employer Elective Contributions allocated to each
Participant's Elective Account for such Plan Year, to such
Participant's "414(s) Compensation" for such Plan Year. The
actual deferral ratio for each Participant and the "Actual
Deferral Percentage" for each group shall be calculated to the
nearest one-hundredth of one percent. Employer Elective
Contributions allocated to each Non-Highly Compensated
Participant's Elective Account shall be reduced by Excess
Deferred Compensation to the extent such excess amounts are
made under this Plan or any other plan maintained by the
Employer.
Notwithstanding the above, if the prior year
test method is used to calculate the "Actual Deferral
Percentage" for the Non-Highly Compensated Participant group
for the first Plan Year of this amendment and restatement, the
"Actual Deferral Percentage" for the Non-Highly Compensated
Participant group for the preceding Plan Year shall be
calculated pursuant to the provisions of the Plan then in
effect.
(c) For the purposes of Sections 4.5(a) and 4.6, a
Highly Compensated Participant and a Non-Highly Compensated
Participant shall include any Employee eligible to make a
deferral election pursuant to Section 4.2, whether or not such
deferral election was made or suspended pursuant to Section
4.2.
Notwithstanding the above, if the prior year
testing method is used to calculate the "Actual Deferral
Percentage" for the Non-Highly Compensated Participant group
for the first Plan Year of this amendment and restatement, for
purposes of Section 4.5(a) and 4.6, a Non-Highly Compensated
Participant shall include any such Employee eligible to make a
deferral election, whether or not such deferral election was
made or suspended, pursuant to the provisions of the Plan in
effect for the preceding Plan Year.
<PAGE> 31
(d) If the Plan uses the prior year testing method,
the "Actual Deferral Percentage" for the Non-Highly
Compensated Participant group is determined without regard to
changes in the group of Non-Highly Compensated Participants
who are eligible under the Plan in the testing year. However,
if the Plan results from, or is otherwise affected by, a "Plan
Coverage Change" that becomes effective during the testing
year, then the "Actual Deferral Percentage" for the Non-Highly
Compensated Participant group for the prior year is the
"Weighted Average Of The Actual Deferral Percentages For The
Prior Year Subgroups." Notwithstanding the above, if ninety
(90) percent or more of the total number of Non-Highly
Compensated Participants from all "Prior Year Subgroups" are
from a single "Prior Year Subgroup," then in determining the
"Actual Deferral Percentage" for the Non-Highly Compensated
Participants for the prior year, the Employer may elect to use
the "Actual Deferral Percentage" for Non-Highly Compensated
Participants for the prior year under which that single "Prior
Year Subgroup" was eligible, in lieu of using the weighted
averages. For purposes of this Section the following
definitions shall apply:
(1) "Plan Coverage Change" means a change in the
group or groups of eligible Participants on account
of (i) the establishment or amendment of a plan, (ii)
a plan merger, consolidation, or spinoff under Code
Section 414(l), (iii) a change in the way plans
within the meaning of Code Section 414(l) are
combined or separated for purposes of Regulation
1.401(k)-1(g)(11), or (iv) a combination of any of
the foregoing.
(2) "Prior Year Subgroup" means all Non-Highly
Compensated Participants for the prior year who, in
the prior year, were eligible Participants under a
specific Code Section 401(k) plan maintained by the
Employer and who would have been eligible
Participants in the prior year under the plan tested
if the plan coverage change had first been effective
as of the first day of the prior year instead of
first being effective during the testing year.
(3) "Weighted Average Of The Actual Deferral
Percentages For The Prior Year Subgroups" means the
sum, for all prior year subgroups, of the "Adjusted
Actual Deferral Percentages."
(4) "Adjusted Actual Deferral Percentage" with
respect to a prior year subgroup means the Actual
Deferral Percentage for Non-Highly Compensated
Participants for the prior year of the specific plan
under which the members of the prior year subgroup
were eligible Participants, multiplied by a fraction,
the numerator of which is the number of Non-Highly
Compensated Participants in the prior year subgroup
and the denominator of which is the total number of
Non-Highly Compensated Participants in all prior year
subgroups.
<PAGE> 32
(e) For the purposes of this Section and Code
Sections 401(a)(4), 410(b) and 401(k), if two or more plans
which include cash or deferred arrangements are considered one
plan for the purposes of Code Section 401(a)(4) or 410(b)
(other than Code Section 410(b)(2)(A)(ii)), the cash or
deferred arrangements included in such plans shall be treated
as one arrangement. In addition, two or more cash or deferred
arrangements may be considered as a single arrangement for
purposes of determining whether or not such arrangements
satisfy Code Sections 401(a)(4), 410(b) and 401(k). In such a
case, the cash or deferred arrangements included in such plans
and the plans including such arrangements shall be treated as
one arrangement and as one plan for purposes of this Section
and Code Sections 401(a)(4), 410(b) and 401(k). Any adjustment
to the Non-Highly Compensated Participant actual deferral
ratio for the prior year shall be made in accordance with
Internal Revenue Service Notice 98-1 and any superseding
guidance. Plans may be aggregated under this paragraph (e)
only if they have the same plan year. Notwithstanding the
above, for Plan Years beginning after December 31, 1996, if
two or more plans which include cash or deferred arrangements
are permissively aggregated under Regulation 1.410(b)-7(d),
all plans permissively aggregated must use either the current
year testing method or the prior year testing method for the
testing year.
Notwithstanding the above, an employee stock
ownership plan described in Code Section 4975(e)(7) or 409 may
not be combined with this Plan for purposes of determining
whether the employee stock ownership plan or this Plan
satisfies this Section and Code Sections 401(a)(4), 410(b) and
401(k).
(f) For the purposes of this Section, if a Highly
Compensated Participant is a Participant under two or more
cash or deferred arrangements (other than a cash or deferred
arrangement which is part of an employee stock ownership plan
as defined in Code Section 4975(e)(7) or 409) of the Employer
or an Affiliated Employer, all such cash or deferred
arrangements shall be treated as one cash or deferred
arrangement for the purpose of determining the actual deferral
ratio with respect to such Highly Compensated Participant.
However, if the cash or deferred arrangements have different
plan years, this paragraph shall be applied by treating all
cash or deferred arrangements ending with or within the same
calendar year as a single arrangement.
(g) For the purpose of this Section, when calculating
the "Actual Deferral Percentage" for the Non-Highly
Compensated Participant group, the prior year testing method
shall be used. Any change from the current year testing method
to the prior year testing method shall be made pursuant to
Internal Revenue Service Notice 98-1, Section VII (or
superseding guidance), the provisions of which are
incorporated herein by reference.
<PAGE> 33
4.6 ADJUSTMENT TO ACTUAL DEFERRAL PERCENTAGE TESTS
In the event (or if it is anticipated) that the initial
allocations of the Employer Elective Contributions made pursuant to Section 4.4
do (or might) not satisfy one of the tests set forth in Section 4.5(a)for Plan
Years beginning after December 31, 1996, the Administrator shall adjust Excess
Contributions pursuant to the options set forth below:
(a) On or before the fifteenth day of the third month
following the end of each Plan Year, the Highly Compensated
Participant having the largest amount of Elective
Contributions shall have a portion of his Elective
Contributions distributed to him until the total amount of
Excess Contributions has been distributed, or until the amount
of his Elective Contributions equals the Elective
Contributions of the Highly Compensated Participant having the
second largest amount of Elective Contributions. This process
shall continue until the total amount of Excess Contributions
has been distributed. In determining the amount of Excess
Contributions to be distributed with respect to an affected
Highly Compensated Participant as determined herein, such
amount shall be reduced pursuant to Section 4.2(f) by any
Excess Deferred Compensation previously distributed to such
affected Highly Compensated Participant for his taxable year
ending with or within such Plan Year.
(1) With respect to the distribution of Excess
Contributions pursuant to (a) above, such
distribution:
(i) may be postponed but not later than the
close of the Plan Year following the Plan Year
to which they are allocable;
(ii) shall be adjusted for Income; and
(iii) shall be designated by the Employer as
a distribution of Excess Contributions (and
Income).
(2) Any distribution of less than the entire amount
of Excess Contributions shall be treated as a pro
rata distribution of Excess Contributions and Income.
(3) Matching contributions which relate to Excess
Contributions shall be forfeited unless the related
matching contribution is distributed as an Excess
Aggregate Contribution pursuant to Section 4.8.
(b) Within twelve (12) months after the end of the
Plan Year, the Employer may make a special Qualified
Non-Elective Contribution on behalf of Non-Highly Compensated
Participants in an amount sufficient to satisfy (or to prevent
an anticipated failure of) one of the tests set forth in
Section 4.5(a). Such contribution shall be allocated to the
Participant's Elective Account of each Non-Highly Compensated
Participant in the same proportion that each
<PAGE> 34
Non-Highly Compensated Participant's Compensation for the
year bears to the total Compensation of all Non-Highly
Compensated Participants.
However, if the prior year testing method is
used, the special Qualified Non-Elective Contribution shall be
allocated in the prior Plan Year to the Participant's Elective
Account on behalf of each Non-Highly Compensated Participant
who was employed by the Employer on the last day of the prior
Plan Year in the same proportion that each such Non-Highly
Compensated Participant's Compensation for the prior Plan Year
bears to the total Compensation of all such Non-Highly
Compensated Participants for the prior Plan Year. Such
contribution shall be made by the Employer prior to the end of
the current Plan Year.
Notwithstanding the above, for Plan Years
beginning after December 31, 1998, if the testing method
changes from the current year testing method to the prior year
testing method, then for purposes of preventing the double
counting of Qualified Non-Elective Contributions for the first
testing year for which the change is effective, any special
Qualified Non-Elective Contribution on behalf of Non-Highly
Compensated Participants used to satisfy the "Actual Deferral
Percentage" or "Actual Contribution Percentage" test under the
current year testing method for the prior year testing year
shall be disregarded.
(c) If during a Plan Year the projected aggregate
amount of Elective Contributions to be allocated to all Highly
Compensated Participants under this Plan would, by virtue of
the tests set forth in Section 4.5(a), cause the Plan to fail
such tests, then the Administrator may automatically reduce
proportionately or in the order provided in Section 4.6(a)
each affected Highly Compensated Participant's deferral
election made pursuant to Section 4.2 by an amount necessary
to satisfy one of the tests set forth in Section 4.5(a).
4.7 ACTUAL CONTRIBUTION PERCENTAGE TESTS
(a) The "Actual Contribution Percentage" for Plan
Years beginning after December 31, 1996 for the Highly
Compensated Participant group shall not exceed the greater of:
(1) 125 percent of such percentage for the Non-Highly
Compensated Participant group (for the preceding Plan
Year if the prior year testing method is used to
calculate the "Actual Contribution Percentage" for
the Non-Highly Compensated Participant group); or
(2) the lesser of 200 percent of such percentage for
the Non-Highly Compensated Participant group (for
the preceding Plan Year if the prior year testing
method is used to calculate the "Actual Contribution
Percentage" for the Non-Highly Compensated
Participant group), or
<PAGE> 35
such percentage for the Non-Highly Compensated
Participant group (for the preceding Plan Year if
the prior year testing method is used to calculate
the "Actual Contribution Percentage" for the
Non-Highly Compensated Participant group) plus 2
percentage points. However, to prevent the multiple
use of the alternative method described in this
paragraph and Code Section 401(m)(9)(A), any Highly
Compensated Participant eligible to make elective
deferrals pursuant to Section 4.2 or any other cash
or deferred arrangement maintained by the Employer
or an Affiliated Employer and to make Employee
contributions or to receive matching contributions
under this Plan or under any plan maintained by the
Employer or an Affiliated Employer shall have a
combination of his Elective Contributions and
Employer matching contributions reduced pursuant to
Regulation 1.401(m)-2 and Section 4.8(a). The
provisions of Code Section 401(m) and Regulations
1.401(m)-1(b) and 1.401(m)-2 are incorporated herein
by reference.
(b) For the purposes of this Section and Section 4.8,
"Actual Contribution Percentage" for a Plan Year means, with
respect to the Highly Compensated Participant group and
Non-Highly Compensated Participant group (for the preceding
Plan Year if the prior year testing method is used to
calculate the "Actual Contribution Percentage" for the
Non-Highly Compensated Participant group), the average of the
ratios (calculated separately for each Participant in each
group rounded to the nearest one-hundredth of one percent) of:
(1) the sum of Employer matching contributions made
pursuant to Section 4.1(b) on behalf of each such
Participant for such Plan Year; to
(2) the Participant's "414(s) Compensation" for such
Plan Year.
Notwithstanding the above, if the prior year
testing method is used to calculate the "Actual Contribution
Percentage" for the Non-Highly Compensated Participant group
for the first Plan Year of this amendment and restatement, for
purposes of Section 4.7(a), the "Actual Contribution
Percentage" for the Non-Highly Compensated Participant group
for the preceding Plan Year shall be determined pursuant to
the provisions of the Plan then in effect.
(c) For purposes of determining the "Actual
Contribution Percentage", only Employer matching contributions
contributed to the Plan prior to the end of the succeeding
Plan Year shall be considered. In addition, the Administrator
may elect to take into account, with respect to Employees
eligible to have Employer matching contributions pursuant to
Section 4.1(b) allocated to their accounts, elective deferrals
(as defined in Regulation 1.402(g)-1(b)) and qualified
non-elective contributions (as defined in Code Section
401(m)(4)(C)) contributed to any plan maintained by the
Employer.
<PAGE> 36
Such elective deferrals and qualified non-elective
contributions shall be treated as Employer matching
contributions subject to Regulation 1.401(m)-1(b)(5) which
is incorporated herein by reference. However, the Plan Year
must be the same as the plan year of the plan to which the
elective deferrals and the qualified non-elective
contributions are made.
(d) For purposes of this Section and Code Sections
401(a)(4), 410(b) and 401(m), if two or more plans of the
Employer to which matching contributions, Employee
contributions, or both, are made are treated as one plan for
purposes of Code Sections 401(a)(4) or 410(b) (other than the
average benefits test under Code Section 410(b)(2)(A)(ii)),
such plans shall be treated as one plan. In addition, two or
more plans of the Employer to which matching contributions,
Employee contributions, or both, are made may be considered as
a single plan for purposes of determining whether or not such
plans satisfy Code Sections 401(a)(4), 410(b) and 401(m). In
such a case, the aggregated plans must satisfy this Section
and Code Sections 401(a)(4), 410(b) and 401(m) as though such
aggregated plans were a single plan. Any adjustment to the
Non-Highly Compensated Participant actual contribution ratio
for the prior year shall be made in accordance with Internal
Revenue Service Notice 98-1 and any superseding guidance.
Plans may be aggregated under this paragraph (e) only if they
have the same plan year. Notwithstanding the above, for Plan
Years beginning after December 31, 1996, if two or more plans
which include cash or deferred arrangements are permissively
aggregated under Regulation 1.410(b)-7(d), all plans
permissively aggregated must use either the current year
testing method or the prior year testing method for the
testing year.
Notwithstanding the above, an employee stock
ownership plan described in Code Section 4975(e)(7) or 409 may
not be aggregated with this Plan for purposes of determining
whether the employee stock ownership plan or this Plan
satisfies this Section and Code Sections 401(a)(4), 410(b) and
401(m).
(e) If a Highly Compensated Participant is a
Participant under two or more plans (other than an employee
stock ownership plan as defined in Code Section 4975(e)(7) or
409) which are maintained by the Employer or an Affiliated
Employer to which matching contributions, Employee
contributions, or both, are made, all such contributions on
behalf of such Highly Compensated Participant shall be
aggregated for purposes of determining such Highly Compensated
Participant's actual contribution ratio. However, if the plans
have different plan years, this paragraph shall be applied by
treating all plans ending with or within the same calendar
year as a single plan.
(f) For purposes of Sections 4.7(a) and 4.8, a Highly
Compensated Participant and Non-Highly Compensated Participant
shall include any Employee eligible to have Employer matching
contributions (whether or not a deferral election was made or
suspended) or voluntary employee contributions
<PAGE> 37
(whether or not voluntary employee contributions are made)
allocated to his account for the Plan Year.
Notwithstanding the above, if the prior year testing
method is used to calculate the "Actual Contribution
Percentage" for the Non-Highly Compensated Participant group
for the first Plan Year of this amendment and restatement, for
the purposes of Section 4.7(a), a Non-Highly Compensated
Participant shall include any such Employee eligible to have
Employer matching contributions (whether or not a deferral
election was made or suspended) or voluntary employee
contributions (whether or not voluntary employee contributions
are made) allocated to his account for the preceding Plan Year
pursuant to the provisions of the Plan then in effect.
(g) If the Plan uses the prior year testing method,
the "Actual Contribution Percentage" for the Non-Highly
Compensated Participant group is determined without regard to
changes in the group of Non-Highly Compensated Participants
who are eligible under the Plan in the testing year. However,
if the Plan results from, or is otherwise affected by, a "Plan
Coverage Change" that becomes effective during the testing
year, then the "Actual Contribution Percentage" for the
Non-Highly Compensated Participant group for the prior year is
the "Weighted Average Of The Actual Contribution Percentages
For The Prior Year Subgroups." Notwithstanding the above, if
ninety (90) percent or more of the total number of Non-Highly
Compensated Participants from all "Prior Year Subgroups" are
from a single "Prior Year Subgroup," then in determining the
"Actual Contribution Percentage" for the Non-Highly
Compensated Participants for the prior year, the Employer may
elect to use the "Actual Contribution Percentage" for
Non-Highly Compensated Participants for the prior year under
which that single "Prior Year Subgroup" was eligible, in lieu
of using the weighted averages. For purposes of this Section
the following definitions shall apply:
(1) "Plan Coverage Change" means a change in the group or groups of eligible
Participants on account of (i) the establishment or amendment of a plan, (ii) a
plan merger, consolidation, or spinoff under Code Section 414(l), (iii) a change
in the way plans within the meaning of Code Section 414(l) are combined or
separated for purposes of Regulation 1.401(k)-1(g)(11), or (iv) a combination of
any of the foregoing.
(2) "Prior Year Subgroup" means all Non-Highly
Compensated Participants for the prior year who,
in the prior year, were eligible Participants
under a specific Code Section 401(m) plan
maintained by the Employer and who would have
been eligible Participants in the prior year
under the plan tested if the plan coverage
change had first been effective as of the first
day of the prior year instead of first being
effective during the testing year.
<PAGE> 38
(3) "Weighted Average Of The Actual Contribution
Percentages For The Prior Year Subgroups" means
the sum, for all prior year subgroups, of the
"Adjusted Actual Contribution Percentages."
(4) "Adjusted Actual Contribution Percentage"
with respect to a prior year subgroup means the
Actual Contribution Percentage for Non-Highly
Compensated Participants for the prior year of
the specific plan under which the members of the
prior year subgroup were eligible Participants,
multiplied by a fraction, the numerator of which
is the number of Non-Highly Compensated
Participants in the prior year subgroup and the
denominator of which is the total number of
Non-Highly Compensated Participants in all prior
year subgroups.
(h) For the purpose of this Section, when calculating
the "Actual Contribution Percentage" for the Non-Highly
Compensated Participant group, the prior year testing method
shall be used. Any change from the current year testing method
to the prior year testing method shall be made pursuant to
Internal Revenue Service Notice 98-1, Section VII (or
superseding guidance), the provisions of which are
incorporated herein by reference.
4.8 ADJUSTMENT TO ACTUAL CONTRIBUTION PERCENTAGE TESTS
(a) In the event (or if it is anticipated) that, for
Plan Years beginning after December 31, 1996, the "Actual
Contribution Percentage" for the Highly Compensated
Participant group exceeds (or might exceed) the "Actual
Contribution Percentage" for the Non-Highly Compensated
Participant group pursuant to Section 4.7(a), the
Administrator (on or before the fifteenth day of the third
month following the end of the Plan Year, but in no event
later than the close of the following Plan Year) shall direct
the Trustee to distribute to the Highly Compensated
Participant having the largest amount of contributions
determined pursuant to Section 4.7(b)(2), his Vested portion
of such contributions (and Income allocable to such
contributions) and, if forfeitable, forfeit such non-Vested
Excess Aggregate Contributions attributable to Employer
matching contributions (and Income allocable to such
forfeitures) until the total amount of Excess Aggregate
Contributions has been distributed, or until his remaining
amount equals the amount of contributions determined pursuant
to Section 4.7(b)(2) of the Highly Compensated Participant
having the second largest amount of contributions. This
process shall continue until the total amount of Excess
Aggregate Contributions has been distributed.
If the correction of Excess Aggregate
Contributions attributable to Employer matching contributions
is not in proportion to the Vested and non-Vested portion of
such contributions, then the Vested portion of the
<PAGE> 39
Participant's Account attributable to Employer matching
contributions after the correction shall be subject to Section
6.4(g).
(b) Any distribution and/or forfeiture of less than
the entire amount of Excess Aggregate Contributions (and
Income) shall be treated as a pro rata distribution and/or
forfeiture of Excess Aggregate Contributions and Income.
Distribution of Excess Aggregate Contributions shall be
designated by the Employer as a distribution of Excess
Aggregate Contributions (and Income). Forfeitures of Excess
Aggregate Contributions shall be treated in accordance with
Section 4.4.
(c) Excess Aggregate Contributions, including
forfeited matching contributions, shall be treated as Employer
contributions for purposes of Code Sections 404 and 415 even
if distributed from the Plan.
Forfeited matching contributions that are
reallocated to Participants' Accounts for the Plan Year in
which the forfeiture occurs shall be treated as an "annual
addition" pursuant to Section 4.9(b) for the Participants to
whose Accounts they are reallocated and for the Participants
from whose Accounts they are forfeited.
(d) The determination of the amount of Excess
Aggregate Contributions with respect to any Plan Year shall be
made after first determining the Excess Contributions, if any,
to be treated as voluntary Employee contributions due to
recharacterization for the plan year of any other qualified
cash or deferred arrangement (as defined in Code Section
401(k)) maintained by the Employer that ends with or within
the Plan Year.
(e) If during a Plan Year the projected aggregate
amount of Employer matching contributions to be allocated to
all Highly Compensated Participants under this Plan would, by
virtue of the tests set forth in Section 4.7(a), cause the
Plan to fail such tests, then the Administrator may
automatically reduce proportionately or in the order provided
in Section 4.8(a) each affected Highly Compensated
Participant's projected share of such contributions by an
amount necessary to satisfy one of the tests set forth in
Section 4.7(a).
(f) Notwithstanding the above, within twelve (12)
months after the end of the Plan Year, the Employer may make a
special Qualified Non-Elective Contribution on behalf of
Non-Highly Compensated Participants in an amount sufficient to
satisfy (or to prevent an anticipated failure of) one of the
tests set forth in Section 4.7(a). Such contribution shall be
allocated to the Participant's Account of Non-Highly
Compensated Participant in the same proportion that each
Non-Highly Compensated Participant's Compensation for the Plan
Year bears to the total Compensation of all Non-Highly
Compensated Participants for
<PAGE> 40
the Plan Year. A separate accounting of any special
Qualified Non-Elective Contribution shall be maintained in
the Participant's Account.
However, if the prior year testing method is
used, the special Qualified Non-Elective Contribution shall be
allocated in the prior Plan Year to the Participant's Account
on behalf of each Non-Highly Compensated Participant who was
employed by the Employer on the last day of the prior Plan
Year in the same proportion that each such Non-Highly
Compensated Participant's Compensation for the prior Plan Year
bears to the total Compensation of all such Non-Highly
Compensated Participants for the prior Plan Year. Such
contribution shall be made by the Employer prior to the end of
the current Plan Year. A separate accounting of any special
Qualified Non-Elective Contributions shall be maintained in
the Participant's Account.
Notwithstanding the above, for Plan Years
beginning after December 31, 1998, if the testing method
changes from the current year testing method to the prior year
testing method, then for purposes of preventing the double
counting of Qualified Non-Elective Contributions for the first
testing year for which the change is effective, any special
Qualified Non-Elective Contribution on behalf of Non-Highly
Compensated Participants used to satisfy the "Actual Deferral
Percentage" or "Actual Contribution Percentage" test under the
current year testing method for the prior year testing year
shall be disregarded.
4.9 MAXIMUM ANNUAL ADDITIONS
(a) Notwithstanding the foregoing, the maximum
"annual additions" credited to a Participant's accounts for
any "limitation year" shall equal the lesser of: (1) $30,000
adjusted annually as provided in Code Section 415(d) pursuant
to the Regulations, or (2) twenty-five percent (25%) of the
Participant's "415 Compensation" for such "limitation year."
For any short "limitation year," the dollar limitation in (1)
above shall be reduced by a fraction, the numerator of which
is the number of full months in the short "limitation year"
and the denominator of which is twelve (12).
(b) For purposes of applying the limitations of Code
Section 415, "annual additions" means the sum credited to a
Participant's accounts for any "limitation year" of (1)
Employer contributions, (2) Employee contributions, (3)
forfeitures, (4) 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 (5) amounts derived from
contributions paid or accrued after December 31, 1985, in
taxable years ending after such date, which are attributable
to post-retirement medical benefits allocated to the separate
account of a key employee (as defined in Code Section
419A(d)(3)) under a welfare benefit plan (as defined in Code
Section 419(e)) maintained by the Employer. Except, however,
the "415
<PAGE> 41
Compensation" percentage limitation referred to in paragraph
(a)(2) above shall not apply to: (1) any contribution for
medical benefits (within the meaning of Code Section
419A(f)(2)) after separation from service which is otherwise
treated as an "annual addition," or (2) any amount otherwise
treated as an "annual addition" under Code Section
415(l)(1).
(c) For purposes of applying the limitations of Code
Section 415, the transfer of funds from one qualified plan to
another is not an "annual addition." In addition, the
following are not Employee contributions for the purposes of
Section 4.9(b)(2): (1) rollover contributions (as defined in
Code Sections 402(e)(6), 403(a)(4), 403(b)(8) and 408(d)(3));
(2) repayments of loans made to a Participant from the Plan;
(3) repayments of distributions received by an Employee
pursuant to Code Section 411(a)(7)(B) (cash-outs); (4)
repayments of distributions received by an Employee pursuant
to Code Section 411(a)(3)(D) (mandatory contributions); and
(5) Employee contributions to a simplified employee pension
excludable from gross income under Code Section 408(k)(6).
(d) For purposes of applying the limitations of Code
Section 415, the "limitation year" shall be the Plan Year.
(e) For the purpose of this Section, all qualified
defined contribution plans (whether terminated or not) ever
maintained by the Employer shall be treated as one defined
contribution plan.
(f) For the purpose of this Section, if the Employer
is a member of a controlled group of corporations, trades or
businesses under common control (as defined by Code Section
1563(a) or Code Section 414(b) and (c) as modified by Code
Section 415(h)), is a member of an affiliated service group
(as defined by Code Section 414(m)), or is a member of a group
of entities required to be aggregated pursuant to Regulations
under Code Section 414(o), all Employees of such Employers
shall be considered to be employed by a single Employer.
(g) For the purpose of this Section, if this Plan is
a Code Section 413(c) plan, each Employer who maintains this
Plan will be considered to be a separate Employer.
(h)(1) If a Participant participates in more than one
defined contribution plan maintained by the Employer which
have different Anniversary Dates, the maximum "annual
additions" under this Plan shall equal the maximum "annual
additions" for the "limitation year" minus any "annual
additions" previously credited to such Participant's accounts
during the "limitation year."
(2) If a Participant participates in both a defined
contribution plan subject to Code Section 412 and
a defined contribution plan not subject
<PAGE> 42
to Code Section 412 maintained by the Employer
which have the same Anniversary Date, "annual
additions" will be credited to the Participant's
accounts under the defined contribution plan subject
to Code Section 412 prior to crediting "annual
additions" to the Participant's accounts under the
defined contribution plan not subject to Code
Section 412.
(3) If a Participant participates in more than one
defined contribution plan not subject to Code Section
412 maintained by the Employer which have the same
Anniversary Date, the maximum "annual additions"
under this Plan shall equal the product of (A) the
maximum "annual additions" for the "limitation year"
minus any "annual additions" previously credited
under subparagraphs (1) or (2) above, multiplied by
(B) a fraction (i) the numerator of which is the
"annual additions" which would be credited to such
Participant's accounts under this Plan without regard
to the limitations of Code Section 415 and (ii) the
denominator of which is such "annual additions" for
all plans described in this subparagraph.
(i) Notwithstanding anything contained in this
Section to the contrary, the limitations, adjustments and
other requirements prescribed in this Section shall at all
times comply with the provisions of Code Section 415 and the
Regulations thereunder, the terms of which are specifically
incorporated herein by reference.
4.10 ADJUSTMENT FOR EXCESSIVE ANNUAL ADDITIONS
(a) If, as a result of the allocation of Forfeitures,
a reasonable error in estimating a Participant's Compensation,
a reasonable error in determining the amount of elective
deferrals (within the meaning of Code Section 402(g)(3)) that
may be made with respect to any Participant under the limits
of Section 4.9 or other facts and circumstances to which
Regulation 1.415-6(b)(6) shall be applicable, the "annual
additions" under this Plan would cause the maximum "annual
additions" to be exceeded for any Participant, the
Administrator shall (1) distribute any elective deferrals
(within the meaning of Code Section 402(g)(3)) or return any
Employee contributions (whether voluntary or mandatory), and
for the distribution of gains attributable to those elective
deferrals and Employee contributions, to the extent that the
distribution or return would reduce the "excess amount" in the
Participant's accounts (2) hold any "excess amount" remaining
after the return of any elective deferrals or voluntary
Employee contributions in a "Section 415 suspense account" (3)
use the "Section 415 suspense account" in the next "limitation
year" (and succeeding "limitation years" if necessary) to
reduce Employer contributions for that Participant if that
Participant is covered by the Plan as of the end of the
"limitation year," or if the Participant is not so covered,
allocate and reallocate the "Section 415 suspense account" in
the next "limitation year"
<PAGE> 43
(and succeeding "limitation years" if necessary) to all
Participants in the Plan before any Employer or Employee
contributions which would constitute "annual additions" are
made to the Plan for such "limitation year" (4) reduce
Employer contributions to the Plan for such "limitation year"
by the amount of the "Section 415 suspense account" allocated
and reallocated during such "limitation year."
(b) For purposes of this Article, "excess amount" for
any Participant for a "limitation year" shall mean the excess,
if any, of (1) the "annual additions" which would be credited
to his account under the terms of the Plan without regard to
the limitations of Code Section 415 over (2) the maximum
"annual additions" determined pursuant to Section 4.9.
(c) For purposes of this Section, "Section 415
suspense account" shall mean an unallocated account equal to
the sum of "excess amounts" for all Participants in the Plan
during the "limitation year." The "Section 415 suspense
account" shall not share in any earnings or losses of the
Trust Fund.
4.11 TRANSFERS FROM QUALIFIED PLANS
(a) With the consent of the Administrator, amounts
may be transferred from other qualified plans by Eligible
Employees, provided that the trust from which such funds are
transferred permits the transfer to be made and the transfer
will not jeopardize the tax exempt status of the Plan or Trust
or create adverse tax consequences for the Employer. The
amounts transferred shall be set up in a separate account
herein referred to as a "Participant's Rollover Account." Such
account shall be fully Vested at all times and shall not be
subject to Forfeiture for any reason.
(b) Amounts in a Participant's Rollover Account shall
be held by the Trustee pursuant to the provisions of this Plan
and may not be withdrawn by, or distributed to the
Participant, in whole or in part, except as provided in
Section 6.9 and paragraphs (c) and (d) of this Section.
(c) Except as permitted by Regulations (including
Regulation 1.411(d)-4), amounts attributable to elective
contributions (as defined in Regulation 1.401(k)-1(g)(3)),
including amounts treated as elective contributions, which are
transferred from another qualified plan in a plan-to-plan
transfer shall be subject to the distribution limitations
provided for in Regulation 1.401(k)-1(d).
(d) At Normal Retirement Date, or such other date
when the Participant or his Beneficiary shall be entitled to
receive benefits, the fair market value of the Participant's
Rollover Account shall be used to provide additional benefits
to the Participant or his Beneficiary. Any distributions of
amounts held in a Participant's Rollover Account shall be made
in a manner
<PAGE> 44
which is consistent with and satisfies the provisions of
Section 6.4, including, but not limited to, all notice and
consent requirements of Code Section 411(a)(11) and the
Regulations thereunder. Furthermore, such amounts shall be
considered as part of a Participant's benefit in determining
whether an involuntary cash-out of benefits without
Participant consent may be made.
(e) The Administrator may direct that employee
transfers made after a Valuation Date be segregated into a
separate account for each Participant in a federally insured
savings account, certificate of deposit in a bank or savings
and loan association, money market certificate, or other short
term debt security acceptable to the Trustee until such time
as the allocations pursuant to this Plan have been made, at
which time they may remain segregated or be invested as part
of the general Trust Fund, to be determined by the
Administrator.
(f) For purposes of this Section, the term "qualified
plan" shall mean any tax qualified plan under Code Section
401(a). The term "amounts transferred from other qualified
plans" shall mean: (i) amounts transferred to this Plan
directly from another qualified plan; (ii) distributions from
another qualified plan which are eligible rollover
distributions and which are either transferred by the Employee
to this Plan within sixty (60) days following his receipt
thereof or are transferred pursuant to a direct rollover;
(iii) amounts transferred to this Plan from a conduit
individual retirement account provided that the conduit
individual retirement account has no assets other than assets
which (A) were previously distributed to the Employee by
another qualified plan as a lump-sum distribution (B) were
eligible for tax-free rollover to a qualified plan and (C)
were deposited in such conduit individual retirement account
within sixty (60) days of receipt thereof and other than
earnings on said assets; and (iv) amounts distributed to the
Employee from a conduit individual retirement account meeting
the requirements of clause (iii) above, and transferred by the
Employee to this Plan within sixty (60) days of his receipt
thereof from such conduit individual retirement account.
(g) Prior to accepting any transfers to which this
Section applies, the Administrator may require the Employee to
establish that the amounts to be transferred to this Plan meet
the requirements of this Section and may also require the
Employee to provide an opinion of counsel satisfactory to the
Employer that the amounts to be transferred meet the
requirements of this Section.
(h) This Plan shall not accept any direct or indirect
transfers (as that term is defined and interpreted under Code
Section 401(a)(11) and the Regulations thereunder) from a
defined benefit plan, money purchase plan (including a target
benefit plan), stock bonus or profit sharing plan which would
otherwise have provided for a life annuity form of payment to
the Participant.
<PAGE> 45
(i) Notwithstanding anything herein to the contrary,
a transfer directly to this Plan from another qualified plan
(or a transaction having the effect of such a transfer) shall
only be permitted if it will not result in the elimination or
reduction of any "Section 411(d)(6) protected benefit" as
described in Section 8.1.
4.12 DIRECTED INVESTMENT ACCOUNT
(a) The Administrator shall establish a written
procedure (the Participant Direction Procedures) under which
Participants shall direct the Trustee to invest their accounts
in specific assets, specific funds or other investments
permitted under the Plan and the Participant Direction
Procedures. A Participant shall be entitled to direct the
investments of all of their accounts in accordance with the
Participant Direction Procedures; provided that as soon as
administratively feasible after the termination of employment
of a Participant, the Trustee shall have investment authority
with respect to the nonvested portion of a Participant's
accounts until the earlier of a Participant's rehire or the
date on which such portion is forfeited under the terms of the
Plan. All amounts held in a Participant's accounts other than
the nonvested portion described in the preceding sentence
shall be considered a Participant's Directed Account. The
Trustee shall have no discretion, control or authority with
respect to a Participant's Directed Account. The Administrator
hereby directs the Trustee to only invest each Participant's
Directed Account in accordance with Participant directions
pursuant to the Participant Direction Procedures.
(b) As of each Valuation Date, all Participant
Directed Accounts shall be charged or credited with the net
earnings, gains, losses and expenses as well as any
appreciation or depreciation in the market value using
publicly listed fair market values when available or
appropriate.
(1) To the extent that the assets in a Participant's
Directed Account are accounted for as pooled assets
or investments, the allocation of earnings, gains and
losses of each Participant's Directed Account shall
be based upon the total amount of funds so invested,
in a manner proportionate to the Participant's share
of such pooled investment.
(2) To the extent that the assets in the
Participant's Directed Account are accounted for as
segregated assets, the allocation of earnings, gains
and losses from such assets shall be made on a
separate and distinct basis.
<PAGE> 46
ARTICLE V
VALUATIONS
5.1 VALUATION OF THE TRUST FUND
The Administrator shall direct the Trustee, as of each
Valuation Date, to determine the net worth of the assets comprising the Trust
Fund as it exists on the Valuation Date. In determining such net worth, the
Trustee shall value the assets comprising the Trust Fund at their fair market
value as of the Valuation Date. The Trustee may update the value of any shares
held in the Participant Directed Account by reference to the number of shares
held by that Participant, priced at the market value as of the Valuation Date.
5.2 METHOD OF VALUATION
In determining the fair market value of securities held in the
Trust Fund which are listed on a registered stock exchange, the Administrator
shall direct the Trustee to value the same at the prices they were last traded
on such exchange preceding the close of business on the Valuation Date. If such
securities were not traded on the Valuation Date, or if the exchange on which
they are traded was not open for business on the Valuation Date, then the
securities shall be valued at the prices at which they were last traded prior to
the Valuation Date. Any unlisted security held in the Trust Fund shall be valued
at its bid price next preceding the close of business on the Valuation Date,
which bid price shall be obtained from a registered broker or an investment
banker. In determining the fair market value of assets other than securities for
which trading or bid prices can be obtained, the Trustee may appraise such
assets itself, or in its discretion, employ one or more appraisers for that
purpose and rely on the values established by such appraiser or appraisers.
ARTICLE VI
DETERMINATION AND DISTRIBUTION OF BENEFITS
6.1 DETERMINATION OF BENEFITS UPON RETIREMENT
Every Participant may terminate his employment with the
Employer and retire for the purposes hereof on his Normal Retirement Date.
However, a Participant may postpone the termination of his employment with the
Employer to a later date, in which event the participation of such Participant
in the Plan, including the right to receive allocations pursuant to Section 4.4,
shall continue until his Late Retirement Date.
6.2 DETERMINATION OF BENEFITS UPON DEATH
(a) Upon the death of a Participant before his
Retirement Date or other termination of his employment, all
amounts credited to such Participant's Combined Account shall
become fully Vested. The Administrator shall direct the
Trustee, in accordance with the provisions of Sections 6.5 and
6.6, to distribute the value of the deceased Participant's
accounts to the Participant's Beneficiary.
<PAGE> 47
(b) Upon the death of a Former Participant, the
Administrator shall direct the Trustee, in accordance with the
provisions of Sections 6.5 and 6.6, to distribute any
remaining Vested amounts credited to the accounts of a
deceased Former Participant to such Former Participant's
Beneficiary.
(c) Any security interest held by the Plan by reason
of an outstanding loan to the Participant or Former
Participant shall be taken into account in determining the
amount of the death benefit.
(d) The Administrator may require such proper proof
of death and such evidence of the right of any person to
receive payment of the value of the account of a deceased
Participant or Former Participant as the Administrator may
deem desirable. The Administrator's determination of death and
of the right of any person to receive payment shall be
conclusive.
(e) The Beneficiary of the death benefit payable
pursuant to this Section shall be the Participant's spouse.
Except, however, the Participant may designate a Beneficiary
other than his spouse if:
(1) the spouse has waived the right to be the
Participant's Beneficiary, or
(2) the Participant is legally separated or has been
abandoned (within the meaning of local law) and the
Participant has a court order to such effect (and
there is no "qualified domestic relations order" as
defined in Code Section 414(p) which provides
otherwise), or
(3) the Participant has no spouse, or
(4) the spouse cannot be located.
In such event, the designation of a Beneficiary
shall be made on a form satisfactory to the Administrator. A
Participant may at any time revoke his designation of a
Beneficiary or change his Beneficiary by filing written
notice of such revocation or change with the Administrator.
However, the Participant's spouse must again consent in
writing to any change in Beneficiary unless the original
consent acknowledged that the spouse had the right to limit
consent only to a specific Beneficiary and that the spouse
voluntarily elected to relinquish such right. In the event
no valid designation of Beneficiary exists at the time of
the Participant's death, the death benefit shall be payable
to his estate.
(f) Any consent by the Participant's spouse to waive
any rights to the death benefit must be in writing, must
acknowledge the effect of such waiver, and be witnessed by a
Plan representative or a notary public. Further,
<PAGE> 48
the spouse's consent must be irrevocable and must
acknowledge the specific nonspouse Beneficiary.
6.3 DETERMINATION OF BENEFITS UPON TERMINATION
(a) If a Participant's employment with the Employer
is terminated for any reason other than death, Total and
Permanent Disability or retirement, such Participant shall be
entitled to such benefits as are provided hereinafter pursuant
to this Section 6.3.
Distribution of the funds due to a
Terminated Participant shall be made on the occurrence of an
event which would result in the distribution had the
Terminated Participant remained in the employ of the Employer
(upon the Participant's death, Total and Permanent Disability
or Normal Retirement). However, at the election of the
Participant, the Administrator shall direct the Trustee to
cause the entire Vested portion of the Terminated
Participant's Combined Account to be payable to such
Terminated Participant. Any distribution under this paragraph
shall be made in a manner which is consistent with and
satisfies the provisions of Section 6.4, including, but not
limited to, all notice and consent requirements of Code
Section 411(a)(11) and the Regulations thereunder.
If the value of a Terminated Participant's
Vested benefit derived from Employer and Employee
contributions does not exceed $5,000 ($3,500 for Plan Years
beginning prior to August 6, 1997) and has never exceeded
$5,000 ($3,500 for Plan Years beginning prior to August 6,
1997) at the time of any distribution prior to March 22, 1999,
the Administrator shall direct the Trustee to cause the entire
Vested benefit to be paid to such Participant in a single lump
sum.
(b) The Vested portion of any Participant's Account
shall be a percentage of the total amount credited to his
Participant's Account determined on the basis of the
Participant's number of Years of Service according to the
following schedule:
<PAGE> 49
Vesting Schedule
Years of Service Percentage
Less than 2 0 %
2 20 %
3 40 %
4 60 %
5 80 %
6 100 %
(c) Notwithstanding the vesting schedule above,
the Vested percentage of a Participant's Account shall not
be less than the Vested percentage attained as of the later
of the effective date or adoption date of this amendment and
restatement.
(d) Notwithstanding the vesting schedule above,
upon the complete discontinuance of the Employer
contributions to the Plan or upon any full or partial
termination of the Plan, all amounts credited to the account
of any affected Participant shall become 100% Vested and
shall not thereafter be subject to Forfeiture.
(e) The computation of a Participant's
nonforfeitable percentage of his interest in the Plan shall
not be reduced as the result of any direct or indirect
amendment to this Plan. For this purpose, the Plan shall be
treated as having been amended if the Plan provides for an
automatic change in vesting due to a change in top heavy
status.
(f)(1) If any Former Participant shall be reemployed
by the Employer before a 1-Year Break in Service occurs, he
shall continue to participate in the Plan in the same manner
as if such termination had not occurred.
(2) If any Former Participant is reemployed after
a 1-Year Break in Service has occurred, Years of
Service shall include Years of Service prior to his
1-Year Break in Service subject to the following
rules:
(i) Any Former Participant who under the
Plan does not have a nonforfeitable right to
any interest in the Plan resulting from
Employer contributions shall lose if his
consecutive 1-Year Breaks in Service equal
or exceed the greater of (A) five (5) or (B)
the aggregate number of his pre-break Years
of Service;
(ii) After five (5) consecutive 1-Year
Breaks in Service, a Former Participant's
Vested Account balance attributable to
pre-break service shall not be increased as
a result of post-break service;
<PAGE> 50
(iii) If a Former Participant is reemployed
by the Employer, he shall participate in the
Plan immediately on his date of reemployment;
iv) If a Former Participant (a 1-Year Break
in Service previously occurred, but employment
had not terminated) is credited with an Hour
of Service after the first eligibility
computation period in which he incurs a 1-Year
Break in Service, he shall participate in the
Plan immediately.
(g) In determining Years of Service for purposes of
vesting under the Plan, Years of Service prior to the vesting
computation period in which an Employee attained his
eighteenth birthday shall be excluded.
6.4 DISTRIBUTION OF BENEFITS
(a) The Administrator, pursuant to the election of
the Participant, shall direct the Trustee to distribute to a
Participant or his Beneficiary any amount to which he is
entitled under the Plan in one lump-sum payment or in a series
of periodic payments not exceeding the life expectancy of the
Participant or the joint and last survivor life expectancy of
the Participant and his Beneficiary, in cash or in property.
(b) Any distribution to a Participant who has a
benefit which exceeds, or has ever exceeded, $5,000 ($3,500
for Plan Years beginning prior to August 6, 1997) at the time
of any distribution prior to March 22, 1999 shall require such
Participant's consent if such distribution occurs prior to the
later of his Normal Retirement Age or age 62. With regard to
this required consent:
(1) The Participant must be informed of his right to
defer receipt of the distribution. If a Participant
fails to consent, it shall be deemed an election to
defer the distribution of any benefit. However, any
election to defer the receipt of benefits shall not
apply with respect to distributions which are
required under Section 6.4(c).
(2) Notice of the rights specified under this
paragraph shall be provided no less than 30 days and
no more than 90 days before the date the distribution
commences.
(3) Consent of the Participant to the distribution
must not be made before the Participant receives the
notice and must not be made more than 90 days before
the date the distribution commences.
(4) No consent shall be valid if a significant
detriment is imposed under the Plan on any
Participant who does not consent to the
distribution.
<PAGE> 51
Any such distribution may commence less than 30 days
after the notice required under Regulation 1.411(a)-11(c) is
given, provided that: (1) the 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 (2) the
Participant, after receiving the notice, affirmatively elects
a distribution.
(c) Notwithstanding any provision in the Plan to the
contrary, for Plan Years beginning after December 31, 1996,
the distribution of a Participant's benefits shall be made in
accordance with the following requirements and shall otherwise
comply with Code Section 401(a)(9) and the Regulations
thereunder (including Regulation 1.401(a)(9)-2), the
provisions of which are incorporated herein by reference:
(1) A Participant's benefits shall be distributed or
must begin to be distributed to him not later than
April 1st of the calendar year following the later of
(i) the calendar year in which the Participant
attains age 70 1/2 or (ii) the calendar year in which
the Participant retires, provided, however, that this
clause (ii) shall not apply in the case of a
Participant who is a "five (5) percent owner" at any
time during the Plan Year ending with or within the
calendar year in which such owner attains age 70 1/2.
Such distributions shall be equal to or greater than
any required distribution.
(2) Distributions to a Participant and his
Beneficiaries shall only be made in accordance with
the incidental death benefit requirements of Code
Section 401(a)(9)(G) and the Regulations thereunder.
(d) For purposes of this Section, the life expectancy
of a Participant and a Participant's spouse may, at the
election of the Participant or the Participant's spouse, be
redetermined in accordance with Regulations. The election,
once made, shall be irrevocable. If no election is made by the
time distributions must commence, then the life expectancy of
the Participant and the Participant's spouse shall not be
subject to recalculation. Life expectancy and joint and last
survivor expectancy shall be computed using the return
multiples in Tables V and VI of Regulation 1.72-9.
(e) The restrictions imposed by this Section shall
not apply if a Participant has, prior to January 1, 1984, made
a written designation to have his retirement benefit paid in
an alternative method acceptable under Code Section 401(a) as
in effect prior to the enactment of the Tax Equity and Fiscal
Responsibility Act of 1982. Any such written designation made
by a Participant shall be binding upon the Plan Administrator
notwithstanding any contrary provision of Section 6.4.
<PAGE> 52
(f) All annuity Contracts under this Plan shall be
non-transferable when distributed. Furthermore, the terms of
any annuity Contract purchased and distributed to a
Participant or spouse shall comply with all of the
requirements of the Plan.
(g) If a distribution is made at a time when a
Participant is not fully Vested in his Participant's Account
and the Participant may increase the Vested percentage in such
account:
(1) a separate account shall be established for the
Participant's interest in the Plan as of the time
of the distribution; and
(2) at any relevant time, the Participant's Vested
portion of the separate account shall be equal to an
amount ("X") determined by the formula:
X equals P(AB plus (R x D)) - (R x D)
For purposes of applying the formula: P is the Vested
percentage at the relevant time, AB is the account
balance at the relevant time, D is the amount of
distribution, and R is the ratio of the account
balance at the relevant time to the account balance
after distribution.
6.5 DISTRIBUTION OF BENEFITS UPON DEATH
(a) The death benefit payable pursuant to Section 6.2
shall be paid to the Participant's Beneficiary in one lump-sum
payment or in a series of periodic payments not exceeding the
life expectancy of the Participant or the joint and last
survivor life expectancy of the Participant and his
Beneficiary in cash or in property subject to the rules of
Section 6.5(b).
(b) Notwithstanding any provision in the Plan to the
contrary, distributions upon the death of a Participant shall
be made in accordance with the following requirements and
shall otherwise comply with Code Section 401(a)(9) and the
Regulations thereunder. If it is determined pursuant to
Regulations that the distribution of a Participant's interest
has begun and the Participant dies before his entire interest
has been distributed to him, the remaining portion of such
interest shall be distributed at least as rapidly as under the
method of distribution selected pursuant to Section 6.4 as of
his date of death. If a Participant dies before he has begun
to receive any distributions of his interest under the Plan or
before distributions are deemed to have begun pursuant to
Regulations, then his death benefit shall be distributed to
his Beneficiaries by December 31st of the calendar year in
which the fifth anniversary of his date of death occurs.
<PAGE> 53
However, the 5-year distribution requirement
of the preceding paragraph shall not apply to any portion of
the deceased Participant's interest which is payable to or for
the benefit of a designated Beneficiary. In such event, such
portion may, at the election of the Participant (or the
Participant's designated Beneficiary be distributed over a
period not extending beyond the life expectancy of such
designated Beneficiary provided such distribution begins not
later than December 31st of the calendar year immediately
following the calendar year in which the Participant died.
However, in the event the Participant's spouse (determined as
of the date of the Participant's death) is his Beneficiary,
the requirement that distributions commence within one year of
a Participant's death shall not apply. In lieu thereof,
distributions must commence on or before the later of: (1)
December 31st of the calendar year immediately following the
calendar year in which the Participant died; or (2) December
31st of the calendar year in which the Participant would have
attained age 70 1/2. If the surviving spouse dies before
distributions to such spouse begin, then the 5-year
distribution requirement of this Section shall apply as if the
spouse was the Participant.
(c) Subject to the spouse's right of consent afforded
under the Plan, the restrictions imposed by this Section shall
not apply if a Participant has, prior to January 1, 1984, made
a written designation to have his death benefits paid in an
alternative method acceptable under Code Section 401(a) as in
effect prior to the enactment of the Tax Equity and Fiscal
Responsibility Act of 1982.
6.6 TIME OF SEGREGATION OR DISTRIBUTION
Except as limited by Sections 6.4 and 6.5, whenever the
Trustee is to make a distribution the distribution may be made as soon as is
practicable. However, unless a Former Participant elects in writing to defer the
receipt of benefits (such election may not result in a death benefit that is
more than incidental), the payment of benefits shall occur not later than the
60th day after the close of the Plan Year in which the latest of the following
events occurs: (a) the date on which the Participant attains the earlier of age
65 or the Normal Retirement Age specified herein; (b) the 10th anniversary of
the year in which the Participant commenced participation in the Plan; or (c)
the date the Participant terminates his service with the Employer.
6.7 DISTRIBUTION FOR MINOR BENEFICIARY
In the event a distribution is to be made to a minor, then the
Administrator may direct that such distribution be paid to the legal guardian,
or if none, to a parent of such Beneficiary or a responsible adult with whom the
Beneficiary maintains his residence, or to the custodian for such Beneficiary
under the Uniform Gift to Minors Act or Gift to Minors Act, if such is permitted
by the laws of the state in which said Beneficiary resides. Such a payment to
the legal guardian, custodian or parent of a minor Beneficiary shall fully
discharge the Trustee, Employer, and Plan from further liability on account
thereof.
<PAGE> 54
6.8 LOCATION OF PARTICIPANT OR BENEFICIARY UNKNOWN
In the event that all, or any portion, of the distribution
payable to a Participant or his Beneficiary hereunder shall, at the later of the
Participant's attainment of age 62 or his Normal Retirement Age, remain unpaid
solely by reason of the inability of the Administrator, after sending a
registered letter, return receipt requested, to the last known address, and
after further diligent effort, to ascertain the whereabouts of such Participant
or his Beneficiary, the amount so distributable shall be treated as a Forfeiture
pursuant to the Plan. In the event a Participant or Beneficiary is located
subsequent to his benefit being reallocated, such benefit shall be restored
unadjusted for earnings or losses.
6.9 PRE-RETIREMENT DISTRIBUTION
At such time as a Participant shall have attained the age of
59 1/2 years, the Administrator, at the election of the Participant, shall
direct the Trustee to distribute all or a portion of the amount then credited to
the Participant's Elective Contribution, Matching Contribution, and Rollover
Accounts maintained on behalf of the Participant. However, no distribution from
these Participant Accounts shall occur prior to 100% vesting. In the event that
the Administrator makes such a distribution, the Participant shall continue to
be eligible to participate in the Plan on the same basis as any other Employee.
Any distribution made pursuant to this Section shall be made in a manner
consistent with Section 6.3, including, but not limited to, all notice and
consent requirements of Code Section 411(a)(11) and the Regulations thereunder.
Notwithstanding the above, pre-retirement distributions from a
Participant's Elective Contribution and Rollover Accounts shall not be permitted
prior to the Participant attaining age 59 1/2 except as otherwise permitted
under the terms of the Plan.
6.10 QUALIFIED DOMESTIC RELATIONS ORDER DISTRIBUTION
All rights and benefits, including elections, provided to a
Participant in this Plan shall be subject to the rights afforded to any
"alternate payee" under a "qualified domestic relations order." Furthermore, a
distribution to an "alternate payee" shall be permitted if such distribution is
authorized by a "qualified domestic relations order," even if the affected
Participant has not separated from service and has not reached the "earliest
retirement age" under the Plan. For the purposes of this Section, "alternate
payee," "qualified domestic relations order" and "earliest retirement age" shall
have the meaning set forth under Code Section 414(p).
ARTICLE VII
TRUSTEE
7.1 BASIC RESPONSIBILITIES OF THE TRUSTEE
(a) The Trustee shall have the following categories
of responsibilities:
<PAGE> 55
(1) To invest Plan assets in accordance with Section 4.12
of the Plan;
(2) At the direction of the Administrator, to pay
benefits required under the Plan to be paid to
Participants, or, in the event of their death, to
their Beneficiaries; and
(3) To maintain records of receipts and disbursements
and furnish to the Employer and/or Administrator for
each Plan Year a written annual report per Section
7.7.
(b) In the event that the Trustee shall be subject to
direction by a Participant under Section 4.12, or the
Employer, or the Administrator, or an Investment Manager with
respect to the investment of any or all Plan assets, the
Trustee shall have no liability with respect to the investment
of such assets, but shall be responsible only to execute such
investment instructions as so directed.
(1) The Trustee shall be entitled to rely fully on
the written instructions of a Participant, or the
Employer, or the Administrator, or any Fiduciary or
nonfiduciary agent of the Employer, in the discharge
of such duties, and shall not be liable for any loss
or other liability, resulting from such direction (or
lack of direction) of the investment of any part of
the Plan assets.
(2) The Trustee may delegate the duty to execute such
instructions to any nonfiduciary agent, which may be
an affiliate of the Trustee or any Plan
representative.
(3) Any costs and expenses related to compliance
with the Participant's directions shall be borne by
the Participant's Directed Account, unless paid by
the Employer.
(c) If there shall be more than one Trustee, they
shall act by a majority of their number, but may authorize one
or more of them to sign papers on their behalf.
7.2 INVESTMENT POWERS AND DUTIES OF THE TRUSTEE
(a) In accordance with Section 4.12, the Trustee
shall invest and reinvest the Trust Fund to keep the Trust
Fund invested without distinction between principal and
income and in such securities or property, real or personal,
wherever situated, including, but not limited to, stocks,
common or preferred, bonds and other evidences of
indebtedness or ownership, and real estate or any interest
therein. In making such investments, the Trustee shall not
<PAGE> 56
be restricted to securities or other property of the
character expressly authorized by the applicable law for
trust investments.
(b) The Trustee may employ a bank or trust company
pursuant to the terms of its usual and customary bank agency
agreement, under which the duties of such bank or trust
company shall be of a custodial, clerical and record-keeping
nature.
(c) In accordance with Section 4.12, the Trustee may
from time to time transfer to a common, collective, pooled
trust fund or money market fund maintained by any corporate
Trustee or affiliate thereof hereunder, all or such part of
the Trust Fund, and such part or all of the Trust Fund so
transferred shall be subject to all the terms and provisions
of the common, collective, pooled trust fund or money market
fund which contemplate the commingling for investment purposes
of such trust assets with trust assets of other trusts. The
Trustee may transfer any part of the Trust Fund intended for
temporary investment of cash balances to a money market fund
maintained by INTRUST Bank, N.A. or its affiliates. The
Trustee may, from time to time, withdraw from such common,
collective, pooled trust fund or money market fund all or such
part of the Trust Fund as the Trustee may deem advisable.
7.3 OTHER POWERS OF THE TRUSTEE
The Trustee, in addition to all powers and authorities under
common law, statutory authority, including the Act, and other provisions of the
Plan, shall have the following powers and authorities, to be exercised in
accordance with Section 4.12 of the Plan:
(a) To receive and hold all contributions paid to it
under the Plan; provided, however, that the Trustee shall have
no duty to require any contributions to be paid to it or to
determine that the contributions received by it comply with
the provisions of the Plan;
(b) To receive amounts transferred to the
Plan from any other trust forming a part of a plan
qualified under Section 401(a) of the Code;
(c) To purchase, or subscribe for, any
securities or other property and to retain the same.
In conjunction with the purchase of securities,
margin accounts may be opened and maintained;
(d) To sell, exchange, convey, transfer, grant
options to purchase, or otherwise dispose of any
securities or other property held by the Trustee,
by private contract or at public auction. No person
dealing with the Trustee shall be bound to see to
the application of the purchase money or to inquire
into the validity, expediency, or propriety of any
such sale or other disposition, with or without
advertisement;
<PAGE> 57
(e) To vote upon any stocks, bonds, or other
securities; to give general or special proxies or
powers of attorney with or without power of
substitution; to exercise any conversion privileges,
subscription rights or other options, and to make any
payments incidental thereto; to oppose, or to consent
to, or otherwise participate in, corporate
reorganizations or other changes affecting corporate
securities, and to delegate discretionary powers, and
to pay any assessments or charges in connection
therewith; and generally to exercise any of the
powers of an owner with respect to stocks, bonds,
securities, or other property. However, the Trustee
shall not vote proxies relating to securities for
which it has not been assigned full investment
management responsibilities. In those cases where
another party has such investment authority or
discretion, the Trustee will deliver all proxies to
said party who will then have full responsibility for
voting those proxies;
(f) To cause any securities or other property
to be registered in the Trustee's own name or in the
name of one or more of the Trustee's nominees, and
to hold any investments in bearer form, but the
books and records of the Trustee shall at all times
show that all such investments are part of the Trust
Fund;
(g) To borrow or raise money for the purposes
of the Plan in such amount, and upon such terms
and conditions, as the Trustee shall deem advisable;
and for any sum so borrowed, to issue a promissory
note as Trustee, and to secure the repayment thereof
by pledging all, or any part, of the Trust Fund;
and no person lending money to the Trustee shall be
bound to see to the application of the money lent
or to inquire into the validity, expediency, or
propriety of any borrowing;
(h) To keep such portion of the Trust Fund
in cash or cash balances as the Trustee may, from
time to time, deem to be in the best interests of the
Plan, without liability for interest thereon;
i) To accept and retain for such time as
the Trustee may deem advisable any securities or
other property received or acquired as Trustee
hereunder, whether or not such securities or other
property would normally be purchased as investments
hereunder;
(j) To make, execute, acknowledge, and deliver
any and all documents of transfer and conveyance
and any and all other instruments that may be
necessary or appropriate to carry out the powers
herein granted;
(k) To settle, compromise, contest, abandon,
or submit to arbitration any claims, debts, or
damages due or owing to or from the
<PAGE> 58
Plan, to commence or defend suits or legal or
administrative proceedings, and to represent the
Plan in all suits and legal and administrative
proceedings;
(l) To employ suitable agents and counsel
who may also be employed by the Administrator or
Employer and to pay their reasonable expenses and
compensation, and such agent or counsel may or may
not be agent or counsel for the Employer;
(m) To apply for and procure from responsible
insurance companies, to be selected by the
Administrator, as an investment of the Trust Fund
such annuity, or other Contracts (on the life of any
Participant) as the Administrator shall deem proper;
to exercise, at any time or from time to time,
whatever rights and privileges may be granted under
such annuity, or other Contracts; to collect,
receive, and settle for the proceeds of all such
annuity or other Contracts as and when entitled to do
so under the provisions thereof;
(n) To invest funds of the Trust in time
deposits or savings accounts bearing a reasonable
rate of interest in the Trustee's bank;
(o) To invest in Treasury Bills and other
forms of United States government obligations;
(p) To invest in shares of investment
companies registered under the Investment Company Act
of 1940, including any money market fund advised by
or offered through INTRUST Bank, N.A.;
(q) To sell, purchase and acquire put or call
options if the options are traded on and purchased
through a national securities exchange registered
under the Securities Exchange Act of 1934, as
amended, or, if the options are not traded on a
national securities exchange, are guaranteed by a
member firm of the New York Stock Exchange;
(r) To deposit monies in federally insured
savings accounts or certificates of deposit in banks
or savings and loan associations;
(s) To pool all or any of the Trust Fund, from
time to time, with assets belonging to any other
qualified employee pension benefit trust created by
the Employer or an affiliated company of the
Employer, and to commingle such assets and make joint
or common investments and carry joint accounts on
behalf of this Plan and such other trust or trusts,
allocating undivided shares or interests in such
investments or accounts or any pooled assets of the
two or more trusts in accordance with their
respective interests;
<PAGE> 59
(t) To appoint a nonfiduciary agent or gents
to assist the Trustee in carrying out any investment
instructions of Participants and of any Investment
Manager or Fiduciary, and to compensate such
agent(s) from the assets of the Plan, to the extent
not paid by the Employer;
To retain any funds or property subject to any
dispute without liability for the payment of interest, or to
decline to make payment or delivery thereof until final
adjudication is made by a court of competent jurisdiction;
To pay any estate, inheritance, income, or other tax,
charge or assessment attributable to any benefit which, in the
the Trustees' opinion, they shall or may be required to pay
out of such benefit; and to require before making any payment
such release or other document from any taxing authority and
such indemnity from the intended payee as the Trustee shall
deem necessary for its protection;
To furnish the Administrator with such information in
the Trustees' possession as the Administrator may need for tax
or other purposes, including information necessary to comply
with Section 103 of the Act;
(x) To do all such acts and exercise all such rights
and privileges, although not specifically mentioned herein, as
the Trustee may deem necessary to carry out the purposes of
the Plan.
(y) For the purposes of satisfying the requirements
of Department of Labor Prohibited Transaction Class Exemption
77-4 in connection with the purchase or sale of shares of the
INTRUST Funds Trust by the Trustee, the Employer acknowledges
that it has received the prospectus for the INTRUST Funds
Trust together with the other information required by such
exemption, and approves the purchase and sale of shares of
INTRUST Funds Trust. If the rate of investment advisory fees
or other fees charged by INTRUST Funds Trust and paid by the
Plan are increased after execution of this document, the
Employer shall be notified of any such change in writing and
must provide written approval to the continued holding of any
shares of INTRUST Funds Trust acquired by the Plan prior to
such change.
7.4 LOANS TO PARTICIPANTS
(a) The Trustee is directed to make loans to
Participants and Beneficiaries under the following
circumstances: (1) loans shall be made available to all
Participants and Beneficiaries on a reasonably equivalent
basis; (2) loans shall not be made available to Highly
Compensated Employees in an amount greater than the amount
made available to other Participants and Beneficiaries; (3)
loans shall bear a reasonable rate of interest; (4) loans
shall be adequately secured; and (5) shall provide for
repayment over a reasonable period of time.
<PAGE> 60
(b) Loans made pursuant to this Section (when added
to the outstanding balance of all other loans made by the Plan
to the Participant) shall be limited to the lesser of:
(1) $50,000 reduced by the excess (if any) of the
highest outstanding balance of loans from the Plan to
the Participant during the one year period ending on
the day before the date on which such loan is made,
over the outstanding balance of loans from the Plan
to the Participant on the date on which such loan was
made, or
(2) one-half (1/2) of the present value of the
non-forfeitable accrued benefit of the Participant
under the Plan.
For purposes of this limit, all plans of the
Employer shall be considered one plan. Additionally, with
respect to any loan made prior to January 1, 1987, the $50,000
limit specified in (1) above shall be unreduced. Only two
outstanding loans will be allowed for each Participant. The
rate of interest charged should be published Wall Street
Journal Prime Rate plus one percent.
(c) Loans shall provide for level amortization with
payments to be made not less frequently than quarterly over a
period not to exceed five (5) years. However, loans used to
acquire any dwelling unit which, within a reasonable time, is
to be used (determined at the time the loan is made) as a
principal residence of the Participant shall provide for
periodic repayment over a reasonable period of time that may
exceed five (5) years. For this purpose, a principal residence
has the same meaning as a principal residence under Code
Section 1034. Notwithstanding the foregoing, loans made prior
to January 1, 1987 which are used to acquire, construct,
reconstruct or substantially rehabilitate any dwelling unit
which, within a reasonable period of time is to be used
(determined at the time the loan is made) as a principal
residence of the Participant or a member of his family (within
the meaning of Code Section 267(c)(4)) may provide for
periodic repayment over a reasonable period of time that may
exceed five (5) years. Additionally, loans made prior to
January 1, 1987, may provide for periodic payments which are
made less frequently than quarterly and which do not
necessarily result in level amortization. Loan repayments will
be suspended under this Plan as permitted under Code Section
414(u)(4).
(d) Any loans granted or renewed on or after the last
day of the first Plan Year beginning after December 31, 1988
shall be made pursuant to a Participant loan program. Such
loan program shall be established in writing and must include,
but need not be limited to, the following:
<PAGE> 61
(1) the identity of the person or positions
authorized to administer the Participant loan
program;
(2) a procedure for applying for loans;
(3) the basis on which loans will be approved or
denied;
(4) limitations, if any, on the types and amounts
of loans offered;
(5) the procedure under the program for determining
a reasonable rate of interest;
(6) the types of collateral which may secure a
Participant loan; and
(7) the events constituting default and the steps
that will be taken to preserve Plan assets.
Such Participant loan program shall be contained
in a separate written document which, when properly
executed, is hereby incorporated by reference and made a
part of the Plan. Furthermore, such Participant loan program
may be modified or amended in writing from time to time
without the necessity of amending this Section.
7.5 DUTIES OF THE TRUSTEE REGARDING PAYMENTS
At the direction of the Administrator, the Trustee shall, from
time to time, in accordance with the terms of the Plan, make payments out of the
Trust Fund. The Trustee shall not be responsible in any way for the application
of such payments.
7.6 TRUSTEE'S COMPENSATION AND EXPENSES AND TAXES
The Trustee shall be paid such reasonable compensation as
shall from time to time be agreed upon in writing by the Employer and the
Trustee. An individual serving as Trustee who already receives full-time pay
from the Employer shall not receive compensation from the Plan. In addition, the
Trustee shall be reimbursed for any reasonable expenses, including reasonable
counsel fees incurred by it as Trustee. Such compensation and expenses shall be
paid from the Trust Fund unless paid or advanced by the Employer. All taxes of
any kind and all kinds whatsoever that may be levied or assessed under existing
or future laws upon, or in respect of, the Trust Fund or the income thereof,
shall be paid from the Trust Fund. The Trustee is authorized to pay from the
Trust Fund all of the Trustee's expenses, taxes and charges (including fees of
persons employed by them in accordance herewith) incurred in connection with the
collective, administration, management, investment, protection and distribution
of the Trust Fund to the extent they are not paid directly by the Employer.
7.7 ANNUAL REPORT OF THE TRUSTEE
<PAGE> 62
Within a reasonable period of time after the later of the
Anniversary Date or receipt of the Employer contribution for each Plan Year, the
Trustee shall furnish to the Employer and Administrator a written statement of
account with respect to the Plan Year for which such contribution was made
setting forth:
(a) the net income, or loss, of the Trust Fund;
(b) the gains, or losses, realized by the Trust Fund
upon sales or other disposition of the assets;
(c) the increase, or decrease, in the value of the
Trust Fund;
(d) all payments and distributions made from the
Trust Fund; and
(e) such further information as the Trustee and/or
Administrator deems appropriate. The Employer, forthwith upon
its receipt of each such statement of account, shall
acknowledge receipt thereof in writing and advise the Trustee
and/or Administrator of its approval or disapproval thereof.
Failure by the Employer to disapprove any such statement of
account within thirty (30) days after its receipt thereof
shall be deemed an approval thereof. The approval by the
Employer of any statement of account shall be binding as to
all matters embraced therein as between the Employer and the
Trustee to the same extent as if the account of the Trustee
had been settled by judgment or decree in an action for a
judicial settlement of its account in a court of competent
jurisdiction in which the Trustee, the Employer and all
persons having or claiming an interest in the Plan were
parties; provided, however, that nothing herein contained
shall deprive the Trustee of its right to have its accounts
judicially settled if the Trustee so desires.
7.8 AUDIT
(a) If an audit of the Plan's records shall be
required by the Act and the regulations thereunder for any
Plan Year, the Administrator shall direct the Trustee to
engage on behalf of all Participants an independent qualified
public accountant for that purpose. Such accountant shall,
after an audit of the books and records of the Plan in
accordance with generally accepted auditing standards, within
a reasonable period after the close of the Plan Year, furnish
to the Administrator and the Trustee a report of his audit
setting forth his opinion as to whether any statements,
schedules or lists that are required by Act Section 103 or the
Secretary of Labor to be filed with the Plan's annual report,
are presented fairly in conformity with generally accepted
accounting principles applied consistently. All auditing and
accounting fees shall be an expense of and may, at the
election of the Administrator, be paid from the Trust Fund.
(b) If some or all of the information necessary to
enable the Administrator to comply with Act Section 103 is
maintained by a bank,
<PAGE> 63
insurance company, or similar institution, regulated and
supervised and subject to periodic examination by a state or
federal agency, it shall transmit and certify the accuracy
of that information to the Administrator as provided in Act
Section 103(b) within one hundred twenty (120) days after
the end of the Plan Year or by such other date as may be
prescribed under regulations of the Secretary of Labor.
7.9 RESIGNATION, REMOVAL AND SUCCESSION OF TRUSTEE
(a) The Trustee may resign at any time by delivering
to the Employer, at least thirty (30) days before its
effective date, a written notice of his resignation.
(b) The Employer may remove the Trustee at any time
by delivering to the Trustee at his last known address, at
least thirty (30) days before its effective date, a written
notice of his removal; provided, however that the Employer may
remove the Trustee without advance notice, for cause.
(c) Upon the death, resignation, incapacity, or
removal of any Trustee, a successor may be appointed by the
Employer; and such successor, upon accepting such appointment
in writing and delivering same to the Employer, shall, without
further act, become vested with all the estate, rights,
powers, discretions, and duties of his predecessor with like
effect as if he were originally named as a Trustee herein.
Until such a successor is appointed, the remaining Trustee or
Trustees shall have full authority to act under the terms of
the Plan.
(d) The Employer may designate one or more successors
prior to the death, resignation, incapacity, or removal of a
Trustee. In the event a successor is so designated by the
Employer and accepts such designation, the successor shall,
without further act, become vested with all the estate,
rights, powers, discretions, and duties of his predecessor
with the like effect as if he were originally named as Trustee
herein immediately upon the death, resignation, incapacity, or
removal of his predecessor.
(e) Whenever any Trustee hereunder ceases to serve as
such, he shall furnish to the Employer and Administrator a
written statement of account with respect to the portion of
the Plan Year during which he served as Trustee. This
statement shall be either (i) included as part of the annual
statement of account for the Plan Year required under Section
7.7 or (ii) set forth in a special statement. Any such special
statement of account should be rendered to the Employer no
later than the due date of the annual statement of account for
the Plan Year. The procedures set forth in Section 7.7 for the
approval by the Employer of annual statements of account shall
apply to any special statement of account rendered hereunder
and approval by the Employer of any such special statement in
the manner provided in Section 7.7 shall have the same
<PAGE> 64
effect upon the statement as the Employer's approval of an
annual statement of account. No successor to the Trustee
shall have any duty or responsibility to investigate the
acts or transactions of any predecessor who has rendered all
statements of account required by Section 7.7 and this
subparagraph.
7.10 TRANSFER OF INTEREST
Notwithstanding any other provision contained in this Plan,
the Trustee at the direction of the Administrator shall transfer the Vested
interest, if any, of such Participant in his account to another trust forming
part of a pension, profit sharing or stock bonus plan maintained by such
Participant's new employer and represented by said employer in writing as
meeting the requirements of Code Section 401(a), provided that the trust to
which such transfers are made permits the transfer to be made.
7.11 DIRECT ROLLOVER
(a) 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 Administrator, to have any
portion of an eligible rollover distribution that is equal to
at least $500 paid directly to an eligible retirement plan
specified by the distributee in a direct rollover.
(b) For purposes of this Section the following
definitions shall apply:
(1) 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 Code Section 401(a)(9); the portion of
any other distribution that is not includible in
gross income (determined without regard to the
exclusion for net unrealized appreciation with
respect to employer securities); any hardship
distribution described in Code Section
401(k)(2)(B)(i)(IV) after December 31, 1999; and any
other distribution that is reasonably expected to
total less than $200 during a year.
(2) An eligible retirement plan is an individual
retirement account described in Code Section 408(a),
an individual retirement annuity described in Code
Section 408(b), an annuity plan described in Code
Section 403(a), or a qualified trust described in
Code Section 401(a),
<PAGE> 65
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.
(3) 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 Code Section 414(p), are
distributees with regard to the interest of the
spouse or former spouse.
(4) A direct rollover is a payment by the Plan to the
eligible retirement plan specified by the
distributee.
7.12 EMPLOYER SECURITIES AND REAL PROPERTY
The Trustee shall be empowered to acquire and hold "qualifying
Employer securities" and "qualifying Employer real property," as those terms are
defined in the Act, provided, however, that the Trustee shall not be permitted
to acquire any qualifying Employer securities or qualifying Employer real
property if, immediately after the acquisition of such securities or property,
the fair market value of all qualifying Employer securities and qualifying
Employer real property held by the Trustee hereunder should amount to more than
100% of the fair market value of all the assets in the Trust Fund.
7.13 INDEMNIFICATION OF TRUSTEE
The Employer shall indemnify and hold harmless the Trustee and
its respective officers, directors, employees and agents from and against any
and all damages (including without limitation amounts paid in settlement),
fines, losses, costs, liabilities, interest and reasonable attorneys' fees that
result from or relate to any Claims (as defined below) that relate to or arise
out of Trustee's being or having been Trustee of the Plan (hereinafter
collectively referred to as the "Trustee Liabilities") (whether or not it is
Trustee at the time any such Trustee Liabilities are asserted or incurred);
provided, however, that the foregoing indemnification shall not apply to matters
as to which Trustee breached its fiduciary duties under ERISA, unless such
breach either: (i) was performed (or not performed) in accordance with the
direction or written reports of the Employer, the Administrator, or any person
engaged by the Employer or Administrator for such purpose (including, but not
limited to, directions or written reports from an Investment Manager); (ii) was
caused by the Employer's or the Administrator's violation of applicable law or
their respective duties undertaken with respect to the Plan and Trust
(including, but not limited to, their fiduciary duties under ERISA), or (iii)
was performed (or not performed) as a result of complying with the provisions of
Section 4.12. For purposes of this Section, "Claims" shall mean any actions,
causes of action, claims, demands, suits, proceedings, disputes, citations,
summons, subpoenas, inquiries or investigations of any nature whatsoever,
whether or not in law, in equity or in any civil, criminal or regulatory
proceeding.
<PAGE> 66
ARTICLE VIII
AMENDMENT, TERMINATION AND MERGERS
8.1 AMENDMENT
(a) The Employer shall have the right at any time to
amend the Plan, subject to the limitations of this Section.
However, any amendment which affects the rights, duties or
responsibilities of the Trustee and Administrator, other than
an amendment to remove the Trustee or Administrator, may only
be made with the Trustee's and Administrator's written
consent. Any such amendment shall become effective as provided
therein upon its execution. The Trustee shall not be required
to execute any such amendment unless the Trust provisions
contained herein are a part of the Plan and the amendment
affects the duties of the Trustee hereunder.
(b) No amendment to the Plan shall be effective if it
authorizes or permits any part of the Trust Fund (other than
such part as is required to pay taxes and administration
expenses) to be used for or diverted to any purpose other than
for the exclusive benefit of the Participants or their
Beneficiaries or estates; or causes any reduction in the
amount credited to the account of any Participant; or causes
or permits any portion of the Trust Fund to revert to or
become property of the Employer.
(c) Except as permitted by Regulations, no Plan
amendment or transaction having the effect of a Plan amendment
(such as a merger, plan transfer or similar transaction) shall
be effective to the extent it eliminates or reduces any
"Section 411(d)(6) protected benefit" or adds or modifies
conditions relating to "Section 411(d)(6) protected benefits"
the result of which is a further restriction on such benefit
unless such protected benefits are preserved with respect to
benefits accrued as of the later of the adoption date or
effective date of the amendment. "Section 411(d)(6) protected
benefits" are benefits described in Code Section 411(d)(6)(A),
early retirement benefits and retirement-type subsidies, and
optional forms of benefit.
8.2 TERMINATION
(a) The Employer shall have the right at any time to
terminate the Plan by delivering to the Trustee and
Administrator written notice of such termination. Upon any
full or partial termination, all amounts credited to the
affected Participants' Combined Accounts shall become 100%
Vested as provided in Section 6.4 and shall not thereafter be
subject to forfeiture, and all unallocated amounts shall be
allocated to the accounts of all Participants in accordance
with the provisions hereof.
<PAGE> 67
(b) Upon the full termination of the Plan, the
Employer shall direct the distribution of the assets of the
Trust Fund to Participants in a manner which is consistent
with and satisfies the provisions of Section 6.4.
Distributions to a Participant shall be made in cash or in
property or through the purchase of irrevocable
nontransferable deferred commitments from an insurer. Except
as permitted by Regulations, the termination of the Plan shall
not result in the reduction of "Section 411(d)(6) protected
benefits" in accordance with Section 8.1(c).
8.3 MERGER OR CONSOLIDATION
This Plan and Trust may be merged or consolidated with, or its
assets and/or liabilities may be transferred to any other plan and trust only if
the benefits which would be received by a Participant of this Plan, in the event
of a termination of the plan immediately after such transfer, merger or
consolidation, are at least equal to the benefits the Participant would have
received if the Plan had terminated immediately before the transfer, merger or
consolidation, and such transfer, merger or consolidation does not otherwise
result in the elimination or reduction of any "Section 411(d)(6) protected
benefits" in accordance with Section 8.1(c).
ARTICLE IX
TOP HEAVY
9.1 TOP HEAVY PLAN REQUIREMENTS
For any Top Heavy Plan Year, the Plan shall provide the
special vesting requirements of Code Section 416(b) pursuant to Section 6.3 of
the Plan and the special minimum allocation requirements of Code Section 416(c)
pursuant to Section 4.4 of the Plan.
9.2 DETERMINATION OF TOP HEAVY STATUS
(a) This Plan shall be a Top Heavy Plan for any Plan
Year in which, as of the Determination Date, (1) the Present
Value of Accrued Benefits of Key Employees and (2) the sum of
the Aggregate Accounts of Key Employees under this Plan and
all plans of an Aggregation Group, exceeds sixty percent (60%)
of the Present Value of Accrued Benefits and the Aggregate
Accounts of all Key and Non-Key Employees under this Plan and
all plans of an Aggregation Group.
If any Participant is a Non-Key Employee for
any Plan Year, but such Participant was a Key Employee for any
prior Plan Year, such Participant's Present Value of Accrued
Benefit and/or Aggregate Account balance shall 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
Group). In addition, if a Participant or Former Participant
has not performed any services
<PAGE> 68
for any Employer maintaining the Plan at any time during the
five year period ending on the Determination Date, any
accrued benefit for such Participant or Former Participant
shall not be taken into account for the purposes of
determining whether this Plan is a Top Heavy or Super Top
Heavy Plan.
(b) This Plan shall be a Super Top Heavy Plan for any
Plan Year in which, as of the Determination Date, (1) the
Present Value of Accrued Benefits of Key Employees and (2) the
sum of the Aggregate Accounts of Key Employees under this Plan
and all plans of an Aggregation Group, exceeds ninety percent
(90%) of the Present Value of Accrued Benefits and the
Aggregate Accounts of all Key and Non-Key Employees under this
Plan and all plans of an Aggregation Group.
(c) Aggregate Account: A Participant's Aggregate
Account as of the Determination Date is the sum of:
(1) his Participant's Combined Account balance as of
the most recent valuation occurring within a twelve
(12) month period ending on the Determination Date;
(2) an adjustment for any contributions due as of the
Determination Date. Such adjustment shall be the
amount of any contributions actually made after the
Valuation Date but due on or before the Determination
Date, except for the first Plan Year when such
adjustment shall also reflect the amount of any
contributions made after the Determination Date that
are allocated as of a date in that first Plan Year.
(3) any Plan distributions made within the Plan Year
that includes the Determination Date or within the
four (4) preceding Plan Years. However, in the case
of distributions made after the Valuation Date and
prior to the Determination Date, such distributions
are not included as distributions for top heavy
purposes to the extent that such distributions are
already included in the Participant's Aggregate
Account balance as of the Valuation Date.
Notwithstanding anything herein to the contrary, all
distributions, including distributions made prior to
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,
will be counted. Further, distributions from the Plan
(including the cash value of life insurance policies)
of a Participant's account balance because of death
shall be treated as a distribution for the purposes
of this paragraph.
(4) any Employee contributions, whether voluntary or
mandatory. However, amounts attributable to tax
deductible qualified voluntary employee
contributions shall not be considered to be a part
of the Participant's Aggregate Account balance.
<PAGE> 69
(5) with respect to unrelated rollovers and
plan-to-plan transfers (ones which are both initiated
by the Employee and made from a plan maintained by
one employer to a plan maintained by another
employer), if this Plan provides the rollovers or
plan-to-plan transfers, it shall always consider such
rollovers or plan-to-plan transfers as a distribution
for the purposes of this Section. If this Plan is the
plan accepting such rollovers or plan-to-plan
transfers, it shall not consider such rollovers or
plan-to-plan transfers as part of the Participant's
Aggregate Account balance. However, rollovers or
plan-to-plan transfers accepted prior to January 1,
1984 shall be considered as part of the Participant's
Aggregate Account balance.
(6) with respect to related rollovers and
plan-to-plan transfers (ones either not initiated by
the Employee or made to a plan maintained by the same
employer), if this Plan provides the rollover or
plan-to-plan transfer, it shall not be counted as a
distribution for purposes of this Section. If this
Plan is the plan accepting such rollover or
plan-to-plan transfer, it shall consider such
rollover or plan-to-plan transfer as part of the
Participant's Aggregate Account balance, irrespective
of the date on which such rollover or plan-to-plan
transfer is accepted.
(7) For the purposes of determining whether two
employers are to be treated as the same employer in
(5) and (6) above, all employers aggregated under
Code Section 414(b), (c), (m) and (o) are treated as
the same employer.
(d) "Aggregation Group" means either a Required
Aggregation Group or a Permissive Aggregation Group as
hereinafter determined.
(1) Required Aggregation Group: In determining a
Required Aggregation Group hereunder, each plan of
the Employer in which a Key Employee is a participant
in the Plan Year containing the Determination Date or
any of the four preceding Plan Years, and each other
plan of the Employer which enables any plan in which
a Key Employee participates to meet the requirements
of Code Sections 401(a)(4) or 410, will be required
to be aggregated. Such group shall be known as a
Required Aggregation Group.
In the case of a Required Aggregation Group, each
plan in the 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.
<PAGE> 70
(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, taken as a whole, would continue
to satisfy the provisions of Code Sections 401(a)(4)
and 410. Such group shall be known as a Permissive
Aggregation Group.
In the case of a Permissive Aggregation Group, 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.
(3) Only those plans of the Employer in which the
Determination Dates fall within the same calendar
year shall be aggregated in order to determine
whether such plans are Top Heavy Plans.
(4) An Aggregation Group shall include any terminated
plan of the Employer if it was maintained within the
last five (5) years ending on the Determination Date.
(e) "Determination Date" means (a) the last day of
the preceding Plan Year, or (b) in the case of the first Plan
Year, the last day of such Plan Year.
(f) Present Value of Accrued Benefit: In the case of
a defined benefit plan, the Present Value of Accrued Benefit
for a Participant other than a Key Employee, shall be as
determined using the single accrual method used for all plans
of the Employer and Affiliated Employers, or if no such single
method exists, using a method which results in benefits
accruing not more rapidly than the slowest accrual rate
permitted under Code Section 411(b)(1)(C). The determination
of the Present Value of Accrued Benefit shall be determined as
of the most recent Valuation Date that falls within or ends
with the 12-month period ending on the Determination Date
except as provided in Code Section 416 and the Regulations
thereunder for the first and second plan years of a defined
benefit plan.
(g) "Top Heavy Group" means an Aggregation Group in
which, as of the Determination Date, the sum of:
(1) the Present Value of Accrued Benefits of Key
Employees under all defined benefit plans included in
the group, and
(2) the Aggregate Accounts of Key Employees under all
defined contribution plans included in the group,
<PAGE> 71
exceeds sixty percent (60%) of a similar sum
determined for all Participants.
ARTICLE X
MISCELLANEOUS
10.1 PARTICIPANT'S RIGHTS
This Plan shall not be deemed to constitute a contract between
the Employer and any Participant or to be a consideration or an inducement for
the employment of any Participant or Employee. Nothing contained in this Plan
shall be deemed to give any Participant or Employee the right to be retained in
the service of the Employer or to interfere with the right of the Employer to
discharge any Participant or Employee at any time regardless of the effect which
such discharge shall have upon him as a Participant of this Plan.
10.2 ALIENATION
(a) Subject to the exceptions provided below, no
benefit which shall be payable out of the Trust Fund to any
person (including a Participant or his Beneficiary) shall be
subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance, or charge, and any
attempt to anticipate, alienate, sell, transfer, assign,
pledge, encumber, or charge the same shall be void; and no
such benefit shall in any manner be liable for, or subject to,
the debts, contracts, liabilities, engagements, or torts of
any such person, nor shall it be subject to attachment or
legal process for or against such person, and the same shall
not be recognized by the Trustee, except to such extent as may
be required by law.
(b) This provision shall not apply to the extent a
Participant or Beneficiary is indebted to the Plan, as a
result of a loan from the Plan. At the time a distribution is
to be made to or for a Participant's or Beneficiary's benefit,
such proportion of the amount distributed as shall equal such
loan indebtedness shall be paid by the Trustee to the Trustee
or the Administrator, at the direction of the Administrator,
to apply against or discharge such loan indebtedness. Prior to
making a payment, however, the Participant or Beneficiary must
be given written notice by the Administrator that such loan
indebtedness is to be so paid in whole or part from his
Participant's Combined Account. If the Participant or
Beneficiary does not agree that the loan indebtedness is a
valid claim against his Vested Participant's Combined Account,
he shall be entitled to a review of the validity of the claim
in accordance with procedures provided in Sections 2.7 and
2.8.
(c) This provision shall not apply to a "qualified
domestic relations order" defined in Code Section 414(p),
and those other domestic relations orders permitted to be so
treated by the Administrator under the provisions of
<PAGE> 72
the Retirement Equity Act of 1984. The Administrator shall
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 "qualified domestic relations
order," a former spouse of a Participant shall be treated as
the spouse or surviving spouse for all purposes under the
Plan.
10.3 CONSTRUCTION OF PLAN
This Plan and Trust shall be construed and enforced according
to the Act and the laws of the State of Nebraska, other than its laws respecting
choice of law, to the extent not preempted by the Act.
10.4 GENDER AND NUMBER
Wherever any words are used herein in the masculine, feminine
or neuter gender, they shall be construed as though they were also used in
another gender in all cases where they would so apply, and whenever any words
are used herein in the singular or plural form, they shall be construed as
though they were also used in the other form in all cases where they would so
apply.
10.5 LEGAL ACTION
In the event any claim, suit, or proceeding is brought
regarding the Trust and/or Plan established hereunder to which the Trustee, the
Employer or the Administrator may be a party, and such claim, suit, or
proceeding is resolved in favor of the Trustee, the Employer or the
Administrator, they shall be entitled to be reimbursed from the Trust Fund for
any and all costs, attorney's fees, and other expenses pertaining thereto
incurred by them for which they shall have become liable.
10.6 PROHIBITION AGAINST DIVERSION OF FUNDS
(a) Except as provided below and otherwise
specifically permitted by law, it shall be impossible by
operation of the Plan or of the Trust, by termination of
either, by power of revocation or amendment, by the happening
of any contingency, by collateral arrangement or by any other
means, for any part of the corpus or income of any trust fund
maintained pursuant to the Plan or any funds contributed
thereto to be used for, or diverted to, purposes other than
the exclusive benefit of Participants, Retired Participants,
or their Beneficiaries.
(b) In the event the Employer shall make an excessive
contribution under a mistake of fact pursuant to Act Section
403(c)(2)(A), the Employer may demand repayment of such
excessive contribution at any time within one (1) year
following the time of payment and the Trustees shall return
such amount to the Employer within the one (1) year period.
Earnings of the Plan
<PAGE> 73
attributable to the excess contributions may not be returned
to the Employer but any losses attributable thereto must
reduce the amount so returned.
10.7 BONDING
Every Fiduciary, except a bank or an insurance company, unless
exempted by the Act and regulations thereunder, shall be bonded in an amount not
less than 10% of the amount of the funds such Fiduciary handles; provided,
however, that the minimum bond shall be $1,000 and the maximum bond, $500,000.
The amount of funds handled shall be determined at the beginning of each Plan
Year by the amount of funds handled by such person, group, or class to be
covered and their predecessors, if any, during the preceding Plan Year, or if
there is no preceding Plan Year, then by the amount of the funds to be handled
during the then current year. The bond shall provide protection to the Plan
against any loss by reason of acts of fraud or dishonesty by the Fiduciary alone
or in connivance with others. The surety shall be a corporate surety company (as
such term is used in Act Section 412(a)(2)), and the bond shall be in a form
approved by the Secretary of Labor. Notwithstanding anything in the Plan to the
contrary, the cost of such bonds shall be an expense of and may, at the election
of the Administrator, be paid from the Trust Fund or by the Employer.
10.8 EMPLOYER'S AND TRUSTEE'S PROTECTIVE CLAUSE
Neither the Employer, the Administrator, nor the Trustee, nor
their successors shall be responsible for the validity of any Contract issued
hereunder or for the failure on the part of the insurer to make payments
provided by any such Contract, or for the action of any person which may delay
payment or render a Contract null and void or unenforceable in whole or in part.
10.9 INSURER'S PROTECTIVE CLAUSE
Any insurer who shall issue Contracts hereunder shall not have
any responsibility for the validity of this Plan or for the tax or legal aspects
of this Plan. The insurer shall be protected and held harmless in acting in
accordance with any written direction of the Trustee, and shall have no duty to
see to the application of any funds paid to the Trustee, nor be required to
question any actions directed by the Trustee. Regardless of any provision of
this Plan, the insurer shall not be required to take or permit any action or
allow any benefit or privilege contrary to the terms of any Contract which it
issues hereunder, or the rules of the insurer.
10.10 RECEIPT AND RELEASE FOR PAYMENTS
Any payment to any Participant, his legal representative,
Beneficiary, or to any guardian or committee appointed for such Participant or
Beneficiary in accordance with the provisions of the Plan, shall, to the extent
thereof, be in full satisfaction of all claims hereunder against the Trustee and
the Employer, either of whom may require such Participant, legal representative,
Beneficiary, guardian or committee, as a condition precedent to such
<PAGE> 74
payment, to execute a receipt and release thereof in such form as shall be
determined by the Trustee or Employer.
10.11 ACTION BY THE EMPLOYER
Whenever the Employer under the terms of the Plan is permitted
or required to do or perform any act or matter or thing, it shall be done and
performed by a person duly authorized by its legally constituted authority.
10.12 NAMED FIDUCIARIES AND ALLOCATION OF RESPONSIBILITY
The "named Fiduciaries" of this Plan are (1) the Employer, (2)
the Administrator and (3) the Trustee. The named Fiduciaries shall have only
those specific powers, duties, responsibilities, and obligations as are
specifically given them under the Plan or as accepted by or assigned to them
pursuant to any procedure provided under the Plan, including but not limited to
any agreement allocating or delegating their responsibilities, the terms of
which are incorporated herein by reference. In general, unless otherwise
indicated herein or pursuant to such agreements, the Employer shall have the
duties specified in Article II hereof, as the same may be allocated or delegated
thereunder, including but not limited to the responsibility for making the
contributions provided for under Section 4.1; and shall have the authority to
appoint and remove the Trustee and the Administrator; to formulate the Plan's
"funding policy and method"; and to amend or terminate, in whole or in part, the
Plan. The Administrator shall have the responsibility for the administration of
the Plan, including but not limited to the items specified in Article II of the
Plan, as the same may be allocated or delegated thereunder. The Trustee shall
have the responsibility to invest Plan assets in accordance with Section 4.12
and to perform the express duties allocated to it under the Plan. Each named
Fiduciary warrants that any directions given, information furnished, or action
taken by it shall be in accordance with the provisions of the Plan, authorizing
or providing for such direction, information or action. Furthermore, each named
Fiduciary may rely upon any such direction, information or action of another
named Fiduciary as being proper under the Plan, and is not required under the
Plan to inquire into the propriety of any such direction, information or action.
It is intended under the Plan that each named Fiduciary shall be responsible for
the proper exercise of its own powers, duties, responsibilities and obligations
under the Plan as specified or allocated herein. No named Fiduciary shall
guarantee the Trust Fund in any manner against investment loss or depreciation
in asset value. Any person or group may serve in more than one Fiduciary
capacity. In the furtherance of their responsibilities hereunder, the "named
Fiduciaries" shall be empowered to interpret the Plan and Trust and to resolve
ambiguities, inconsistencies and omissions, which findings shall be binding,
final and conclusive.
10.13 HEADINGS
The headings and subheadings of this Plan have been inserted
for convenience of reference and are to be ignored in any construction of the
provisions hereof.
10.14 APPROVAL BY INTERNAL REVENUE SERVICE
<PAGE> 75
(a) Notwithstanding anything herein to the contrary,
contributions to this Plan are conditioned upon the initial
qualification of the Plan under Code Section 401. If the Plan
receives an adverse determination with respect to its initial
qualification, then the Plan may return such contributions to
the Employer within one year after such determination,
provided the application for the determination is made by the
time prescribed by law for filing the Employer's return for
the taxable year in which the Plan was adopted, or such later
date as the Secretary of the Treasury may prescribe.
(b) Notwithstanding any provisions to the contrary,
except Sections 3.5, 3.6, and 4.1(e), any contribution by the
Employer to the Trust Fund is conditioned upon the
deductibility of the contribution by the Employer under the
Code and, to the extent any such deduction is disallowed, the
Employer may, within one (1) year following the disallowance
of the deduction, demand repayment of such disallowed
contribution and the Trustee shall return such contribution
within one (1) year following the disallowance. Earnings of
the Plan attributable to the excess contribution may not be
returned to the Employer, but any losses attributable thereto
must reduce the amount so returned.
ARTICLE XI
PARTICIPATING EMPLOYERS
11.1 ADOPTION BY OTHER EMPLOYERS
Notwithstanding anything herein to the contrary, with the
consent of the Employer and Trustee, any other corporation or entity, whether an
affiliate or subsidiary or not, may adopt this Plan and all of the provisions
hereof, and participate herein and be known as a Participating Employer, by a
properly executed document evidencing said intent and will of such Participating
Employer.
11.2 REQUIREMENTS OF PARTICIPATING EMPLOYERS
(a) Each such Participating Employer shall be
required to use the same Trustee as provided in this Plan.
(b) The Trustee may, but shall not be required to,
commingle, hold and invest as one Trust Fund all contributions
made by Participating Employers, as well as all increments
thereof. However, the assets of the Plan shall, on an ongoing
basis, be available to pay benefits to all Participants and
Beneficiaries under the Plan without regard to the Employer or
Participating Employer who contributed such assets.
<PAGE> 76
(c) The transfer of any Participant from or to an
Employer participating in this Plan, whether he be an Employee
of the Employer or a Participating Employer, shall not affect
such Participant's rights under the Plan, and all amounts
credited to such Participant's Combined Account as well as his
accumulated service time with the transferor or predecessor,
and his length of participation in the Plan, shall continue to
his credit.
(d) All rights and values forfeited by termination of
employment shall inure only to the benefit of the Participants
of the Employer or Participating Employer by which the
forfeiting Participant was employed, except if the Forfeiture
is for an Employee whose Employer is an Affiliated Employer,
then said Forfeiture shall inure to the benefit of the
Participants of those Employers who are Affiliated Employers.
Should an Employee of one ("First") Employer be transferred to
an associated ("Second") Employer which is an Affiliated
Employer, such transfer shall not cause his account balance
(generated while an Employee of "First" Employer) in any
manner, or by any amount to be forfeited. Such Employee's
Participant Combined Account balance for all purposes of the
Plan, including length of service, shall be considered as
though he had always been employed by the "Second" Employer
and as such had received contributions, forfeitures, earnings
or losses, and appreciation or depreciation in value of assets
totaling the amount so transferred.
(e) Any expenses of the Trust which are to be paid by
the Employer or borne by the Trust Fund shall be paid by each
Participating Employer in the same proportion that the total
amount standing to the credit of all Participants employed by
such Employer bears to the total standing to the credit of all
Participants.
11.3 DESIGNATION OF AGENT
Each Participating Employer shall be deemed to be a party to
this Plan; provided, however, that with respect to all of its relations with the
Trustee and Administrator for the purpose of this Plan, each Participating
Employer shall be deemed to have designated irrevocably the Employer as its
agent. Unless the context of the Plan clearly indicates the contrary, the word
"Employer" shall be deemed to include each Participating Employer as related to
its adoption of the Plan.
11.4 EMPLOYEE TRANSFERS
It is anticipated that an Employee may be transferred between
Participating Employers, and in the event of any such transfer, the Employee
involved shall carry with him his accumulated service and eligibility. No such
transfer shall effect a termination of employment hereunder, and the
Participating Employer to which the Employee is transferred shall thereupon
become obligated hereunder with respect to such Employee in the same manner as
was the Participating Employer from whom the Employee was transferred.
<PAGE> 77
11.5 PARTICIPATING EMPLOYER CONTRIBUTION
Any contribution subject to allocation during each Plan Year
shall be allocated only among those Participants of the Employer or
Participating Employer making the contribution, except if the contribution is
made by an Affiliated Employer, in which event such contribution shall be
allocated among all Participants of all Participating Employers who are
Affiliated Employers in accordance with the provisions of this Plan. On the
basis of the information furnished by the Administrator, the Trustee shall keep
separate books and records concerning the affairs of each Participating Employer
hereunder and as to the accounts and credits of the Employees of each
Participating Employer. The Trustee may, but need not, register Contracts so as
to evidence that a particular Participating Employer is the interested Employer
hereunder, but in the event of an Employee transfer from one Participating
Employer to another, the employing Employer shall immediately notify the Trustee
thereof.
11.6 AMENDMENT
Amendment of this Plan by the Employer at any time when there
shall be a Participating Employer hereunder shall only be by the written action
of each and every Participating Employer and with the consent of the Trustee
where such consent is necessary in accordance with the terms of this Plan.
11.7 DISCONTINUANCE OF PARTICIPATION
Any Participating Employer shall be permitted to discontinue
or revoke its participation in the Plan. At the time of any such discontinuance
or revocation, satisfactory evidence thereof and of any applicable conditions
imposed shall be delivered to the Trustee. The Trustee shall thereafter
transfer, deliver and assign Contracts and other Trust Fund assets allocable to
the Participants of such Participating Employer to such new Trustee as shall
have been designated by such Participating Employer, in the event that it has
established a separate pension plan for its Employees, provided however, that no
such transfer shall be made if the result is the elimination or reduction of any
"Section 411(d)(6) protected benefits" in accordance with Section 8.1(c). If no
successor is designated, the Trustee shall retain such assets for the Employees
of said Participating Employer pursuant to the provisions of Article VII hereof.
In no such event shall any part of the corpus or income of the Trust as it
relates to such Participating Employer be used for or diverted to purposes other
than for the exclusive benefit of the Employees of such Participating Employer.
11.8 ADMINISTRATOR'S AUTHORITY
The Administrator shall have authority to make any and all
necessary rules or regulations, binding upon all Participating Employers and all
Participants, to effectuate the purpose of this Article.
<PAGE> 78
IN WITNESS WHEREOF, this Plan has been executed the day and
year first above written. Signed, sealed, and delivered in the presence of:
Signed, sealed, and delivered
in the presence of:
Ameritrade Holding Corporation
By /s/ Robert T. Slezak
--------------------------------------
EMPLOYER
INTRUST Bank, N.A.
By /s/ Stuart Goodwin
--------------------------------------
TRUSTEE
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Ameritrade Holding Corporation on Form S-8 of our reports dated October 27,
1998, incorporated by reference in the Annual Report on Form 10-K of Ameritrade
Holding Corporation for the year ended September 25, 1998.
/s/ Deloitte & Touche LLP
- ------------------------------
DELOITTE & TOUCHE LLP
Omaha, Nebraska
April 30, 1999
