As filed with the Securities and Exchange Commission on October 6, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PEOPLES-SIDNEY FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 31-1499862
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
101 E Court Street, Sidney, Ohio 45365
(Address of principal executive offices) (Zip Code)
PEOPLES FEDERAL SAVINGS & LOAN ASSOCIATION OF SIDNEY
401(k) RETIREMENT PLAN
(Full title of the plan)
Jeffrey M. Werthan, P.C.
Beth A. Freedman, Esq.
Robert E. Fitzgerald, Esq.
Silver, Freedman & Taff, L.L.P.
(a limited liability partnership including professional corporations)
1100 New York Ave., N.W.
Washington, D.C. 20005
(Name and address of agent for service)
(202) 414-6100
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
maximum maximum
Title of securities Amount to be offering price aggregate Amount of
to be registered registered per share offering price registration fee
---------------- ---------- -------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 23,000 shares(1) $16.50(2) $379,500(2) $115.00(2)
Interests in Savings Plan(3) N/A(3) N/A N/A N/A(3)
- ---------
(1) Estimated maximum aggregate number of shares of Peoples - Sidney Financial
Corporation ("Peoples") common stock purchasable with employee and employer
contributions under the Plan during the next 60 months.
(2) Estimated in accordance with Rule 457(h), solely for the purpose of
calculating the registration fee at $16.50 per share, which was the average
of the high and low prices of the Peoples common stock on October 3, 1997,
as reported on the Nasdaq National Market.
(3) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended, this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein. In accordance with Rule 457(h)(2) no separate fee
calculation is made for plan interests.
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form
S-8 will be sent or given to participants in the Peoples Federal Savings & Loan
Association of Sidney 401(k) Retirement Plan (the "Plan") as specified by Rule
428(b)(1) promulgated by the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act").
Such documents are not being filed with the Commission, but constitute
(along with the documents incorporated by reference into the Registration
Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Certain Documents by Reference.
The following documents previously or concurrently filed by
Peoples-Sidney Financial Corporation (the "Company") with the Commission are
hereby incorporated by reference in this Registration Statement and the
Prospectus to which this Registration Statement relates (the "Prospectus"),
which Prospectus has been or will be delivered to the participants in the Plan
covered by this Registration Statement:
(a) The Company's Registration Statement on Form S-1 (Registration
No. 333-20461) filed with the Commission on January 27, 1997
and as amended on March 12, 1997;
(b) All reports filed by the Company pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"); since the filing of the Registration
Statement on Form S-1 referred to in (a) above.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date hereof,
and prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed incorporated by reference into this
Registration Statement and the Prospectus and to be a part hereof and thereof
from the date of the filing of such documents. Any statement contained in the
documents incorporated, or deemed to be incorporated, by reference herein or in
the Prospectus shall be deemed to be modified or superseded for purposes of this
Registration Statement and the Prospectus to the extent that a statement
contained herein or therein or in any other subsequently filed document which
also is, or is deemed to be, incorporated by reference herein or therein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement and the Prospectus.
The Company shall furnish without charge to each person to whom the
Prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the documents incorporated by reference, other than exhibits to
such documents (unless such exhibits are specifically incorporated by reference
to the information that is incorporated). Requests should be directed to
Corporate Secretary, Peoples Federal Savings & Loan Association of Sidney, 101
E. Court Street, Sidney Ohio 45365 telephone number (937) 492-6129.
All information appearing in this Registration Statement and the
Prospectus is qualified in its entirety by the detailed information, including
financial statements, appearing in the documents incorporated herein or therein
by reference.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
<PAGE>
Item 6. Indemnification of Directors and Officers.
Article ELEVENTH of the Company's Certificate of Incorporation provides
for indemnification of directors and officers of the Registrant against any and
all liabilities judgments, fines and reasonable settlements, costs, expenses and
attorneys' fees incurred in any actual, threatened or potential proceeding,
except to the extent that such indemnification is limited by Delaware law and
such law cannot be varied by contract or bylaw. Article ELEVENTH also provides
for the authority to purchase insurance with respect thereto.
Section 145 of the General Corporation Law of the State of Delaware
authorizes a corporation's board of directors to grant indemnity under certain
circumstances to directors and officers, when made, or threatened to be made,
parties to certain proceedings by reason of such status with the corporation,
against judgments, fines, settlements and expenses, including attorneys' fees.
In addition, under certain circumstances such persons may be indemnified against
expenses actually and reasonably incurred in defense of a proceeding by or on
behalf of the corporation. Similarly, the corporation, under certain
circumstances, is authorized to indemnify directors and officers of other
corporations or enterprises who are serving as such at the request of the
corporation, when such persons are made, or threatened to be made, parties to
certain proceedings by reason of such status, against judgments, fines,
settlements and expenses, including attorneys' fees; and under certain
circumstances, such persons may be indemnified against expenses actually and
reasonably incurred in connection with the defense or settlement of a proceeding
by or in the name of such other corporation or enterprise. Indemnification is
permitted where such person (i) was acting in good faith, (ii) was acting in a
manner he reasonably believed to be in or not opposed to the best interests of
the corporation or other corporation or enterprise, as appropriate, (iii) with
respect to a criminal proceeding, had no reasonable cause to believe his conduct
was unlawful, and (iv) was not adjudged to be liable to the corporation or other
corporation or enterprise (unless the court where the proceeding was brought
determines that such person is fairly and reasonably entitled to indemnity).
Unless ordered by a court, indemnification may be made only following a
determination that such indemnification is permissible because the person being
indemnified has met the requisite standard of conduct. Such determination may be
made (i) by a majority vote of the Directors of the Company who are not parties
to such action, suit or proceeding, even though such directors constitute less
than a quorum, or (ii) if there are no such directors, or if such directors so
direct, by independent legal counsel in a written opinion, or (iii) by the
Stockholders.
Section 145 also permits expenses incurred by directors and officers in
defending a proceeding to be paid by the corporation in advance of the final
disposition of such proceedings upon the receipt of an undertaking by the
director or officer to repay such amount if it is ultimately determined that he
is not entitled to be indemnified by the corporation against such expenses.
Under a directors' and officers' liability insurance policy, directors
and officers of the Company are insured against certain liabilities, including
certain liabilities under the Securities Act.
Item 7. Exemption from Registration Claimed.
Not Applicable.
<PAGE>
Item 8. Exhibits.
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<CAPTION>
Regulation Reference to
S-K Prior Filing or
Exhibit Exhibit Number
Number Document Attached Hereto
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<S> <C> <C>
4 Instruments defining the rights of security holders, including
indentures 1
4.1 Certificate of Incorporation of Peoples-Sidney Financial Corp. 1
4.2 Bylaws of Peoples-Sidney Financial Corp. 1
4.3 Specimen form of common stock certificate of Peoples-Sidney Financial 1
Corp.
4.4 Peoples Federal Savings & Loan Association of Sidney 401(k) Attached as Exhibit 4.4
Retirement Plan
5 Opinion of Silver, Freedman & Taff, L.L.P. Attached as Exhibit 5
23.1 Consent of Silver, Freedman & Taff, L.L.P. Contained in Exhibit 5
(Included in Exhibit 5)
23.2 Consent of Crowe, Chizek and Company LLP Attached as Exhibit 23.2
1. Filed as an Exhibit to the Company's Form S-1 Registration Statement filed
January 27, 1997 (Registration No.333-20461) and as amended on March 12,
1997 and hereby incorporated by reference in accordance with Item 601 of
Regulation S-K.
</TABLE>
The Company hereby undertakes that it will submit or has submitted the
Plan and any amendment thereto to the Internal Revenue Service (the "IRS") in a
timely manner and has made or will make all changes required by the IRS in order
to qualify the Plan under Section 401 of the Internal Revenue Code of 1986, as
amended.
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 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.
<PAGE>
(2) That, for the purpose of determining any
liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that is 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 Sidney, State of Ohio, on the 6th day of
October, 1997.
PEOPLES-SIDNEY FINANCIAL
CORPORATION
Date: October 6, 1997 By: /s/Douglas Stewart
------------------
Douglas Stewart
President, Chief Executive Officer
and Director
(Duly Authorized Representative)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
By:/s/ Douglas Stewart By: /s/James W. Kerber
------------------- ------------------
Douglas Stewart James W. Kerber
President, Chief Executive Officer Director
and Director
(Duly Authorized Representative)
Date: October 6, 1997 Date: October 6, 1997
By: /s/ Richard T. Martin By: /s/ John W. Sargeant
--------------------- --------------------
Richard T. Martin John W. Sargeant
Chairman of the Board Director
Date: October 6, 1997 Date: October 6, 1997
By: /s/ Robert W. Bertsch By: /s/ Debra A. Geuy
--------------------- -----------------
Robert W. Bertesch Debra A. Geuy
Director Treasurer
(Principal Financial and
Accounting Officer)
Date: October 6, 1997 Date: October 6, 1997
By:
/s/Harry N. Faulkner
--------------------
Harry N. Faulkner
Director
Date: October 6, 1997
<PAGE>
SIGNATURES
The Plan. Pursuant to the requirements of the Securities Act of 1933,
the trustees (or other persons who administer the employee benefit plan) have
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto, duly authorized, in the City of Springfield, State of
Ohio on the 6th day of October, 1997.
PEOPLES FEDERAL & LOAN
ASSOCIATION OF SIDNEY
401(k) RETIREMENT PLAN
/s/Jennifer Coors
----------------------
Jennifer Coors
Security National Bank and
Trust Co.
Trustee of the Peoples Federal
Savings & Loan Association
of Sidney 401(k) Retirement Plan
Date: October 6, 1997
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PEOPLES-SIDNEY FINANCIAL CORPORATION
<PAGE>
EXHIBIT INDEX
Exhibit
Number
------
4.4 Peoples Federal Savings & Loan Association of Sidney 401(k)
Retirement Plan
5 Opinion of Silver, Freedman & Taff, L.L.P.
23.1 Consent of Silver, Freedman & Taff, L.L.P. (included in Exhibit 5)
23.2 Consent of Crowe, Chizek and Company LLP
EXHIBIT 4.4
<PAGE>
PEOPLES FEDERAL SAVINGS & LOAN ASSOCIATION OF SIDNEY
401(k) RETIREMENT PLAN
<PAGE>
PROTOTYPE CASH OR DEFERRED PROFIT-SHARING PLAN
AND TRUST/CUSTODIAL ACCOUNT
Sponsored By
SECURITY NATIONAL BANK AND TRUST CO.
Springfield, Ohio
BASIC PLAN DOCUMENT #04
February 1993
Copyright 1993 THE McKAY HOCHMAN COMPANY, INC.
<PAGE>
THIS DOCUMENT IS COPYRIGHTED UNDER THE LAWS OF THE UNITED STATES. USE,
DUPLICATION OR REPRODUCTION, INCLUDING THE USE OF ELECTRONIC MEANS, IS
PROHIBITED BY LAW WITHOUT THE EXPRESS CONSENT OF THE AUTHOR.
TABLE OF CONTENTS
PARAGRAPH
ARTICLE I
DEFINITIONS
1.1 Actual Deferral Percentage
1.2 Adoption Agreement
1.3 Aggregate Limit
1.4 Annual Additions
1.5 Annuity Starting Date
1.6 Applicable Calendar Year
1.7 Applicable Life Expectancy
1.8 Average Contribution Percentage (ACP)
1.9 Average Deferral Percentage (ADP)
1.10 Break In Service
1.11 Code
1.12 Compensation
1.13 Contribution Percentage
1.14 Custodian
1.15 Defined Benefit Plan
1.16 Defined Benefit (Plan) Fraction
1.17 Defined Contribution Dollar Limitation
1.18 Defined Contribution Plan
1.19 Defined Contribution (Plan) Fraction
1.20 Designated Beneficiary
1.21 Disability
1.22 Distribution Calendar Year
1.23 Early Retirement Age
1.24 Earned Income
1.25 Effective Date
1.26 Election Period
1.27 Elective Deferral
1.28 Eligible Participant
1.29 Employee
1.30 Employer
1.31 Entry Date
1.32 Excess Aggregate Contributions
1.33 Excess Amount
1.34 Excess Contribution
1.35 Excess Elective Deferrals
1.36 Family Member
1.37 First Distribution Calendar Year
1.38 Fund
1.39 Hardship
1.40 Highest Average Compensation
1.41 Highly Compensated Employee
1.42 Hour Of Service
1.43 Key Employee
1.44 Leased Employee
1.45 Limitation Year
1.46 Master Or Prototype Plan
<PAGE>
1.47 Matching Contribution
1.48 Maximum Permissible Amount
1.49 Net Profit
1.50 Normal Retirement Age
1.51 Owner-Employee
1.52 Paired Plans
1.53 Participant
1.54 Participant's Benefit
1.55 Permissive Aggregation Group
1.56 Plan
1.57 Plan Administrator
1.58 Plan Year
1.59 Present Value
1.60 Projected Annual Benefit
1.61 Qualified Deferred Compensation Plan
1.62 Qualified Domestic Relations Order
1.63 Qualified Early Retirement Age
1.64 Qualified Joint And Survivor Annuity
1.65 Qualified Matching Contribution
1.66 Qualified Non-Elective Contributions
1.67 Qualified Voluntary Contribution
1.68 Required Aggregation Group
1.69 Required Beginning Date
1.70 Rollover Contribution
1.71 Salary Savings Agreement
1.72 Self-Employed Individual
1.73 Service
1.74 Shareholder Employee
1.75 Simplified Employee Pension Plan
1.76 Sponsor
1.77 Spouse (Surviving Spouse)
1.78 Super Top-Heavy Plan
1.79 Taxable Wage Base
1.80 Top-Heavy Determination Date
1.81 Top-Heavy Plan
1.82 Top-Heavy Ratio
1.83 Top-Paid Group
1.84 Transfer Contribution
1.85 Trustee
1.86 Valuation Date
1.87 Vested Account Balance
1.88 Voluntary Contribution
1.89 Welfare Benefit Fund
1.90 Year Of Service
ARTICLE II
ELIGIBILITY REQUIREMENTS
2.1 Participation
2.2 Change In Classification Of Employment
2.3 Computation Period
2.4 Employment Rights
2.5 Service With Controlled Groups
2.6 Owner-Employees
2.7 Leased Employees
2.8 Thrift Plans
<PAGE>
ARTICLE III
EMPLOYER CONTRIBUTIONS
3.1 Amount
3.2 Expenses And Fees
3.3 Responsibility For Contributions
3.4 Return Of Contributions
ARTICLE IV
EMPLOYEE CONTRIBUTIONS
4.1 Voluntary Contributions
4.2 Qualified Voluntary Contributions
4.3 Rollover Contribution
4.4 Transfer Contribution
4.5 Employer Approval Of Transfer Contributions
4.6 Elective Deferrals
4.7 Required Voluntary Contributions
4.8 Direct Rollover of Benefits
ARTICLE V
PARTICIPANT ACCOUNTS
5.1 Separate Accounts
5.2 Adjustments To Participant Accounts
5.3 Allocating Employer Contributions
5.4 Allocating Investment Earnings And Losses
5.5 Participant Statements
ARTICLE VI
RETIREMENT BENEFITS AND DISTRIBUTIONS
6.1 Normal Retirement Benefits
6.2 Early Retirement Benefits
6.3 Benefits On Termination Of Employment
6.4 Restrictions On Immediate Distributions
6.5 Normal Form Of Payment
6.6 Commencement Of Benefits
6.7 Claims Procedures
6.8 In-Service Withdrawals
6.9 Hardship Withdrawal
ARTICLE VII
DISTRIBUTION REQUIREMENTS
7.1 Joint And Survivor Annuity Requirements
7.2 Minimum Distribution Requirements
7.3 Limits On Distribution Periods
7.4 Required Distributions On Or After The Required
Beginning Date
7.5 Required Beginning Date
7.6 Transitional Rule
7.7 Designation Of Beneficiary For Death Benefit
7.8 Nonexistence Of Beneficiary
7.9 Distribution Beginning Before Death
7.10 Distribution Beginning After Death
7.11 Distribution Of Excess Elective Deferrals
7.12 Distributions of Excess Contributions
7.13 Distribution Of Excess Aggregate Contributions
<PAGE>
ARTICLE VIII
JOINT AND SURVIVOR ANNUITY REQUIREMENTS
8.1 Applicability Of Provisions
8.2 Payment Of Qualified Joint And Survivor Annuity
8.3 Payment Of Qualified Pre-Retirement Survivor Annuity
8.4 Qualified Election
8.5 Notice Requirements For Qualified Joint And Survivor
Annuity
8.6 Notice Requirements For Qualified Pre-Retirement
Survivor Annuity
8.7 Special Safe-Harbor Exception For Certain Profit-
Sharing Plans
8.8 Transitional Joint And Survivor Annuity Rules
8.9 Automatic Joint And Survivor Annuity And Early
Survivor Annuity
8.10 Annuity Contracts
ARTICLE IX
VESTING
9.1 Employee Contributions
9.2 Employer Contributions
9.3 Computation Period
9.4 Requalification Prior To Five Consecutive One-Year
Breaks In Service
9.5 Requalification After Five Consecutive One-Year
Breaks In Service
9.6 Calculating Vested Interest
9.7 Forfeitures
9.8 Amendment Of Vesting Schedule
9.9 Service With Controlled Groups
ARTICLE X
LIMITATIONS ON ALLOCATIONS
AND ANTIDISCRIMINATION TESTING
10.1 Participation In This Plan Only
10.2 Disposition Of Excess Annual Additions
10.3 Participation In This Plan And Another Master and
Prototype Defined Contribution Plan, Welfare
Benefit Fund Or Individual Medical Account
Maintained By The Employer
10.4 Disposition Of Excess Annual Additions Under Two
Plans
10.5 Participation In This Plan And Another Defined
Contribution Plan Which Is Not A Master Or
Prototype Plan
10.6 Participation In This Plan And A Defined Benefit Plan
10.7 Average Deferral Percentage (ADP) Test
10.8 Special Rules Relating To Application Of ADP Test
10.9 Recharacterization
10.10 Average Contribution Percentage (ACP) Test
10.11 Special Rules Relating To Application Of ACP Test
<PAGE>
ARTICLE XI
ADMINISTRATION
11.1 Plan Administrator
11.2 Trustee/Custodian
11.3 Administrative Fees And Expenses
11.4 Division Of Duties And Indemnification
ARTICLE XII
TRUST FUND/CUSTODIAL ACCOUNT
12.1 The Fund
12.2 Control Of Plan Assets
12.3 Exclusive Benefit Rules
12.4 Assignment And Alienation Of Benefits
12.5 Determination Of Qualified Domestic Relations Order
(QDRO)
ARTICLE XIII
INVESTMENTS
13.1 Fiduciary Standards
13.2 Funding Arrangement
13.3 Investment Alternatives Of The Trustee
13.4 Duties Of The Custodian
13.5 Participant Loans
13.6 Insurance Policies
13.7 Employer Investment Direction
13.8 Employee Investment Direction
ARTICLE XIV
TOP-HEAVY PROVISIONS
14.1 Applicability Of Rules
14.2 Minimum Contribution
14.3 Minimum Vesting
14.4 Limitations On Allocations
ARTICLE XV
AMENDMENT AND TERMINATION
15.1 Amendment By Sponsor
15.2 Amendment By Employer
15.3 Termination
15.4 Qualification Of Employer's Plan
15.5 Mergers And Consolidations
15.6 Resignation And Removal
15.7 Qualification Of Prototype
ARTICLE XVI
GOVERNING LAW
<PAGE>
PROTOTYPE CASH OR DEFERRED PROFIT-SHARING PLAN AND TRUST/CUSTODIAL
ACCOUNT
Sponsored By
SECURITY NATIONAL BANK AND TRUST CO.
The Sponsor hereby establishes the following Prototype Retirement Plan and
Trust/Custodial Account for use by those of its customers who qualify and wish
to adopt a qualified retirement program. Any Plan and Trust/Custodial Account
established hereunder shall be administered for the exclusive benefit of
Participants and their beneficiaries under the following terms and conditions:
ARTICLE I
DEFINITIONS
1.1 Actual Deferral Percentage The ratio (expressed as a percentage and
calculated separately for each Participant) of:
(a) the amount of Employer contributions [as defined at
(c) and (d)] actually paid over to the Fund on behalf
of such Participant for the Plan Year to
(b) the Participant's Compensation for such Plan Year.
Compensation will only include amounts for the period
during which the Employee was eligible to
participate.
Employer contributions on behalf of any Participant shall include:
(c) any Elective Deferrals made pursuant to the
Participant's deferral election, including Excess
Elective Deferrals, but excluding Elective Deferrals
that are either taken into account in the
Contribution Percentage test (provided the ADP test
is satisfied both with and without exclusion of these
Elective Deferrals) or are returned as excess Annual
Additions; and
(d) at the election of the Employer, Qualified
Non-Elective Contributions and Qualified Matching
Contributions.
For purposes of computing Actual Deferral Percentages, an Employee who would be
a Participant but for the failure to make Elective Deferrals shall be treated as
a Participant on whose behalf no Elective Deferrals are made.
1.2 Adoption Agreement The document attached to this Plan by which an Employer
elects to establish a qualified retirement plan and trust/custodial account
under the terms of this Prototype Plan and Trust/Custodial Account.
1.3 Aggregate Limit The sum of:
(a) 125 percent of the greater of the ADP of the
non-Highly Compensated Employees for the Plan Year or
the ACP of non-Highly Compensated Employees under the
Plan subject to Code Section 401(m) for the Plan Year
beginning with or within the Plan Year of the cash or
deferred arrangement as described in Code Section
401(k) or Code Section 402(h)(1)(B), and
<PAGE>
(b) the lesser of 200% or two percent plus the lesser of
such ADP or ACP.
Alternatively, the aggregate limit can be determined by substituting "the lesser
of 200% or 2 percent plus" for "125% of" in (a) above, and substituting "125%
of" for "the lesser of 200% or 2 percent plus" in (b) above.
1.4 Annual Additions The sum of the following amounts credited to a
Participant's account for the Limitation Year:
(a) Employer Contributions,
(b) Employee Contributions (under Article IV),
(c) forfeitures,
(d) 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 (these
amounts are treated as Annual Additions to a Defined
Contribution Plan though they arise under a Defined
Benefit Plan), and
(e) amounts derived from contributions paid or accrued
after 1985, in taxable years ending after 1985, which
are either attributable to post-retirement medical
benefits allocated to the account of a Key Employee,
or to a Welfare Benefit Fund maintained by the
Employer, are also treated as Annual Additions to a
Defined Contribution Plan. For purposes of this
paragraph, an Employee is a Key Employee if he or she
meets the requirements of paragraph 1.43 at any time
during the Plan Year or any preceding Plan Year.
Welfare Benefit Fund is defined at paragraph 1.89.
Excess amounts applied in a Limitation Year to reduce Employer contributions
will be considered Annual Additions for such Limitation Year, pursuant to the
provisions of Article X.
1.5 Annuity Starting Date The first day of the first period for which an amount
is paid as an annuity or in any other form.
1.6 Applicable Calendar Year The First Distribution Calendar Year, and in the
event of the recalculation of life expectancy, such succeeding calendar year. If
payments commence in accordance with paragraph 7.4(e) before the Required
Beginning Date, the Applicable Calendar Year is the year such payments commence.
If distribution is in the form of an immediate annuity purchased after the
Participant's death with the Participant's remaining interest, the Applicable
Calendar Year is the year of purchase.
1.7 Applicable Life Expectancy Used in determining the required minimum
distribution. The life expectancy (or joint and last survivor expectancy)
calculated using the attained age of the Participant (or Designated Beneficiary)
as of the Participant's (or Designated Beneficiary's) birthday in the Applicable
Calendar Year reduced by one for each calendar year which has elapsed since the
<PAGE>
date life expectancy was first calculated. If life expectancy is being
recalculated, the Applicable Life Expectancy shall be the life expectancy as so
recalculated. The life expectancy of a non-Spouse Beneficiary may not be
recalculated.
1.8 Average Contribution Percentage (ACP) The average of the Contribution
Percentages for each Highly Compensated Employee and for each non-Highly
Compensated Employee.
1.9 Average Deferral Percentage (ADP) The average of the Actual Deferral
Percentages for each Highly Compensated Employee and for each non-Highly
Compensated Employee.
1.10 Break In Service A 12-consecutive month period during which an Employee
fails to complete more than 500 Hours of Service.
1.11 Code The Internal Revenue Code of 1986, including any amendments.
1.12 Compensation The Employer may select one of the following three safe-harbor
definitions of Compensation in the Adoption Agreement. Compensation shall only
include amounts earned while a Participant if Plan Year is chosen as the
applicable computation period.
(a) Code Section 3401(a) Wages. Compensation is defined as wages
within the meaning of Code Section 3401(a) for the purposes of
Federal income tax withholding at the source but determined
without regard to any rules that limit the remuneration
included in wages based on the nature or location of the
employment or the services performed [such as the exception
for agricultural labor in Code Section 3401(a)(2)].
(b) Code Section 6041 and 6051 Wages. Compensation is defined as
wages as defined in Code Section 3401(a) and all other
payments of compensation to an Employee by the Employer (in
the course of the Employer's trade or business) for which the
Employer is required to furnish the employee a written
statement under Code Section 6041(d) and 6051(a)(3).
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)].
(c) Code Section 415 Compensation. For purposes of applying the
limitations of Article X and Top-Heavy Minimums, the
definition of Compensation shall be Code Section 415
Compensation defined as follows: a Participant's Earned
Income, wages, salaries, and fees for professional services
and other amounts received (without regard to whether or not
an amount is paid in cash) for personal services actually
rendered in the course of employment with the Employer
maintaining the Plan to the extent that the amounts are
includible in gross income [including, but not limited to,
commissions paid salesmen, Compensation for services on the
basis of a percentage of profits, commissions on insurance
premiums, tips, bonuses, fringe benefits and reimbursements or
other expense allowances under a nonaccountable plan (as
described in Regulation 1.62-2(c)], and excluding the
following:
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1. Employer contributions to a plan of deferred
compensation which are not includible in the
Employee's gross income for the taxable year in which
contributed, or Employer contributions under a
Simplified Employee Pension Plan or any distributions
from a plan of deferred compensation,
2. Amounts realized from the exercise of a non-qualified
stock option, or when restricted stock (or property)
held by the Employee either becomes freely
transferable or is no longer subject to a substantial
risk of forfeiture,
3. Amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified stock
option; and
4. other amounts which received special tax benefits, or
contributions made by the Employer (whether or not
under a salary reduction agreement) towards the
purchase of an annuity contract described in Code
Section 403(b) (whether or not the contributions are
actually excludible from the gross income of the
Employee).
For purposes of applying the limitations of Article X and Top-Heavy Minimums,
the definition of Compensation shall be Code Section 415 Compensation described
in this paragraph 1.12(c). Also, for purposes of applying the limitations of
Article X, Compensation for a Limitation Year is the Compensation actually paid
or made available during such Limitation Year. Notwithstanding the preceding
sentence, Compensation for a Participant in a defined contribution plan who is
permanently and totally disabled [as defined in Code Section 22(e)(3)] is the
Compensation such Participant would have received for the Limitation Year if the
Participant had been paid at the rate of Compensation paid immediately before
becoming permanently and totally disabled. Such imputed Compensation for the
disabled Participant may be taken into account only if the participant is not a
Highly Compensated Employee [as defined in Code Section 414(q)] and
contributions made on behalf of such Participant are nonforfeitable when made.
If the Employer fails to pick the applicable period in the Adoption Agreement,
the Plan Year shall be used. Unless otherwise specified by the Employer in the
Adoption Agreement, Compensation shall be determined as provided in Code Section
3401(a) [as defined in this paragraph 1.12(a)]. In nonstandardized Adoption
Agreement 002, the Employer may choose to eliminate or exclude categories of
Compensation which do not violate the provisions of Code Sections 401(a)(4),
414(s) the regulations thereunder and Revenue Procedure 89-65.
Beginning with 1989 Plan Years, the annual Compensation of each Participant
which may be taken into account for determining all benefits provided under the
Plan (including benefits under Article XIV) for any year shall not exceed
$200,000, as adjusted under Code Section 415(d). In determining the Compensation
of a Participant for purposes of this limitation, the rules of Code Section
414(q)(6) shall apply, except in applying such rules, the term "family" shall
include only the Spouse of the Participant and any lineal descendants of the
Participant who have not attained age 19 before the end of the Plan year. If, as
<PAGE>
a result of the application of such rules the adjusted $200,000 limitation is
exceeded, then (except for purposes of determining the portion of Compensation
up to the integration level if this Plan provides for permitted disparity), the
limitation shall be prorated among the affected individuals in proportion to
each such individual's Compensation as determined under this section prior to
the application of this limitation.
If a Plan has a Plan Year that contains fewer than 12 calendar months, then the
annual Compensation limit for that period is an amount equal to the $200,000 as
adjusted for the calendar year in which the Compensation period begins,
multiplied by a fraction the numerator of which is the number of full months in
the Short Plan Year and the denominator of which is 12. If Compensation for any
prior Plan Year is taken into account in determining an Employee's contributions
or benefits for the current year, the Compensation for such prior year is
subject to the applicable annual Compensation limit in effect for that prior
year. For this purpose, for years beginning before January 1, 1990, the
applicable annual Compensation limit is $200,000.
Compensation shall not include deferred Compensation other than contributions
through a salary reduction agreement to a cash or deferred plan under Code
Section 401(k), a Simplified Employee Pension Plan under Code Section
402(h)(1)(B), a cafeteria plan under Code Section 125 or a tax-deferred annuity
under Code Section 403(b). Unless elected otherwise by the Employer in the
Adoption Agreement, these deferred amounts will be considered as Compensation
for Plan purposes. These deferred amounts are not counted as Compensation for
purposes of Articles X and XIV. When applicable to a Self-Employed Individual,
Compensation shall mean Earned Income.
1.13 Contribution Percentage The ratio (expressed as a percentage and calculated
separately for each Participant) of:
(a) the Participant's Contribution Percentage Amounts [as
defined at (c)-(f)] for the Plan Year, to
(b) the Participant's Compensation for the Plan Year.
Compensation will only include amounts for the period
during which the Employee was eligible to
participate.
Contribution Percentage Amounts on behalf of any Participant shall include:
(c) the amount of Employee Voluntary Contributions,
Matching Contributions, and Qualified Matching
Contributions (to the extent not taken into account
for purposes of the ADP test) made under the Plan on
behalf of the Participant for the Plan Year,
(d) forfeitures of Excess Aggregate Contributions or
Matching Contributions allocated to the Participant's
account which shall be taken into account in the year
in which such forfeiture is allocated,
(e) at the election of the Employer, Qualified
Non-Elective Contributions, and
<PAGE>
(f) the Employer also may elect to use Elective Deferrals
in the Contribution Percentage Amounts so long as the
ADP test is met before the Elective Deferrals are
used in the ACP test and continues to be met
following the exclusion of those Elective Deferrals
that are used to meet the ACP test.
Contribution Percentage Amounts shall not include Matching Contributions,
whether or not Qualified, that are forfeited either to correct Excess Aggregate
Contributions, or because the contributions to which they relate are Excess
Deferrals, Excess Contributions, or Excess Aggregate Contributions.
1.14 Custodian The Sponsor of this Prototype Plan, or if applicable, an
affiliate or successor, shall serve as Custodian, if a Custodian is appointed in
the Adoption Agreement.
1.15 Defined Benefit Plan A Plan under which a Participant's benefit is
determined by a formula contained in the Plan and no individual accounts are
maintained for Participants.
1.16 Defined Benefit (Plan) Fraction A fraction, the numerator of which is the
sum of the Participant's Projected Annual Benefits under all the Defined Benefit
Plans (whether or not terminated) maintained by the Employer, and the
denominator of which is the lesser of 125 percent of the dollar limitation
determined for the Limitation Year under Code Sections 415(b) and (d) or 140
percent of the Highest Average Compensation, including any adjustments under
Code Section 415(b).
Notwithstanding the above, if the Participant was a Participant as of the first
day of the first Limitation Year beginning after 1986, in one or more Defined
Benefit Plans maintained by the Employer which were in existence on May 6, 1986,
the denominator of this fraction will not be less than 125 percent of the sum of
the annual benefits under such plans which the Participant had accrued as of the
close of the last Limitation Year beginning before 1987, disregarding any
changes in the terms and conditions of the plan after May 5, 1986. The preceding
sentence applies only if the Defined Benefit Plans individually and in the
aggregate satisfied the requirements of Section 415 for all Limitation Years
beginning before 1987.
1.17 Defined Contribution Dollar Limitation Thirty thousand dollars ($30,000) or
if greater, one-fourth of the defined benefit dollar limitation set forth in
Code Section 415(b)(1) as in effect for the Limitation Year.
1.18 Defined Contribution Plan A Plan under which individual accounts are
maintained for each Participant to which all contributions, forfeitures,
investment income and gains or losses, and expenses are credited or deducted. A
Participant's benefit under such Plan is based solely on the fair market value
of his or her account balance.
1.19 Defined Contribution (Plan) Fraction A Fraction, the numerator of which is
the sum of the Annual Additions to the Participant's account under all the
Defined Contribution Plans (whether or not terminated) maintained by the
Employer for the current and all prior Limitation Years (including the Annual
Additions attributable to the Participant's nondeductible Employee contributions
to all Defined Benefit Plans, whether or not terminated, maintained by the
Employer, and the Annual Additions attributable to all Welfare Benefit Funds, as
defined in paragraph 1.89 and individual medical accounts, as defined in Code
<PAGE>
Section 415(l)(2), maintained by the Employer), and the denominator of which is
the sum of the maximum aggregate amounts for the current and all prior
Limitation Years of service with the Employer (regardless of whether a Defined
Contribution Plan was maintained by the Employer). The maximum aggregate amount
in the Limitation Year is the lesser of 125 percent of the dollar limitation
determined under Code Sections 415(b) and (d) in effect under Code Section
415(c)(1)(A) or 35 percent of the Participant's Compensation for such year.
If the Employee was a Participant as of the end of the first day of the first
Limitation Year beginning after 1986, in one or more Defined Contribution Plans
maintained by the Employer which were in existence on May 6, 1986, the numerator
of this fraction will be adjusted if the sum of this fraction and the Defined
Benefit Fraction would otherwise exceed 1.0 under the terms of this Plan. Under
the adjustment, an amount equal to the product of (1) the excess of the sum of
the fractions over 1.0 times (2) the denominator of this fraction will be
permanently subtracted from the numerator of this fraction. The adjustment is
calculated using the fractions as they would be computed as of the end of the
last Limitation Year beginning before 1987, and disregarding any changes in the
terms and conditions of the Plan made after May 6, 1986, but using the Section
415 limitation applicable to the first Limitation Year beginning on or after
January 1, 1987. The Annual Addition for any Limitation Year beginning before
1987, shall not be re-computed to treat all Employee Contributions as Annual
Additions.
1.20 Designated Beneficiary The individual who is designated as the beneficiary
under the Plan in accordance with Code Section 401(a)(9) and the regulations
thereunder.
1.21 Disability An illness or injury of a potentially permanent nature, expected
to last for a continuous period of not less than 12 months, certified by a
physician selected by or satisfactory to the Employer, which prevents the
Employee from engaging in any occupation for wage or profit for which the
Employee is reasonably fitted by training, education or experience.
1.22 Distribution Calendar Year A calendar year for which a minimum distribution
is required.
1.23 Early Retirement Age The age set by the Employer in the Adoption Agreement
(but not less than 55), which is the earliest age at which a Participant may
retire and receive his or her benefits under the Plan.
1.24 Earned Income Net earnings from self-employment in the trade or business
with respect to which the Plan is established, determined without regard to
items not included in gross income and the deductions allocable to such items,
provided that personal services of the individual are a material
income-producing factor. Earned income shall be reduced by contributions made by
an Employer to a qualified plan to the extent deductible under Code Section 404.
For tax years beginning after 1989, net earnings shall be determined taking into
account the deduction for one-half of self-employment taxes allowed to the
Employer under Code Section 164(f) to the extent deductible.
1.25 Effective Date The date on which the Employer's retirement plan or
amendment to such plan becomes effective. For amendments reflecting statutory
and regulatory changes post Tax Reform Act of 1986, the Effective Date will be
the earlier of the date upon which such amendment is first administratively
applied or the first day of the Plan Year following the date of adoption of such
amendment.
<PAGE>
1.26 Election Period The period which begins on the first day of the Plan Year
in which the Participant attains age 35 and ends on the date of the
Participant's death. If a Participant separates from service prior to the first
day of the Plan Year in which age 35 is attained, the Election Period shall
begin on the date of separation, with respect to the account balance as of the
date of separation.
1.27 Elective Deferral Employer contributions made to the Plan at the election
of the Participant, in lieu of cash Compensation. Elective Deferrals shall also
include contributions made pursuant to a Salary Savings Agreement or other
deferral mechanism, such as a cash option contribution. With respect to any
taxable year, a Participant's Elective Deferral is the sum of all Employer
contributions made on behalf of such Participant pursuant to an election to
defer under any qualified cash or deferred arrangement as described in Code
Section 401(k), any simplified employee pension cash or deferred arrangement as
described in Code Section 402(h)(1)(B), any eligible deferred compensation plan
under Code Section 457, any plan as described under Code Section 501(c)(18), and
any Employer contributions made on the behalf of a Participant for the purchase
of an annuity contract under Code Section 403(b) pursuant to a Salary Savings
Agreement. Elective Deferrals shall not include any deferrals properly
distributed as Excess Annual Additions.
1.28 Eligible Participant Any Employee who is eligible to make a Voluntary
Contribution, or an Elective Deferral (if the Employer takes such contributions
into account in the calculation of the Contribution Percentage), or to receive a
Matching Contribution (including forfeitures) or a Qualified Matching
Contribution. If a Voluntary Contribution or Elective Deferral is required as a
condition of participation in the Plan, any Employee who would be a Participant
in the Plan if such Employee made such a contribution shall be treated as an
Eligible Participant even though no Voluntary Contributions or Elective
Deferrals are made.
1.29 Employee Any person employed by the Employer (including Self-Employed
Individuals and partners), all Employees of a member of an affiliated service
group [as defined in Code Section 414(m)], Employees of a controlled group of
corporations [as defined in Code Section 414(b)], all Employees of any
incorporated or unincorporated trade or business which is under common control
[as defined in Code Section 414(c)], Leased Employees [as defined in Code
Section 414(n)] and any Employee required to be aggregated by Code Section
414(o). All such Employees shall be treated as employed by a single Employer.
1.30 Employer The Self-Employed Individual, partnership, corporation or other
organization which adopts this Plan including any firm that succeeds the
Employer and adopts this Plan. For purposes of Article X, Limitations on
Allocations, Employer shall mean the Employer that adopts this Plan, and all
members of a controlled group of corporations [as defined in Code Section 414(b)
as modified by Code Section 415(h)], all commonly controlled trades or
businesses [as defined in Code Section 414(c) as modified by Code Section
415(h)] or affiliated service groups [as defined in Code Section 414(m)] of
which the adopting Employer is a part, and any other entity required to be
aggregated with the Employer pursuant to regulations under Code Section 414(o).
1.31 Entry Date The date on which an Employee commences participation in the
Plan as determined by the Employer in the Adoption Agreement.
<PAGE>
1.32 Excess Aggregate Contributions The excess, with respect to any Plan Year,
of:
(a) The aggregate Contribution Percentage Amounts taken
into account in computing the numerator of the
Contribution Percentage actually made on behalf of
Highly Compensated Employees for such Plan Year, over
(b) The maximum Contribution Percentage Amounts permitted
by the ACP test (determined by reducing contributions
made on behalf of Highly Compensated Employees in
order of their Contribution Percentages beginning
with the highest of such percentages).
Such determination shall be made after first determining Excess Elective
Deferrals pursuant to paragraph 1.35 and then determining Excess Contributions
pursuant to paragraph 1.34.
Excess Amount The excess of the Participant's Annual Additions for the
Limitation Year over the Maximum Permissible Amount.
1.34 Excess Contribution With respect to any Plan Year, the excess of:
(a) The aggregate amount of Employer contributions
actually taken into account in computing the ADP of
Highly Compensated Employees for such Plan Year, over
(b) The maximum amount of such contributions permitted by
the ADP test (determined by reducing contributions
made on behalf of Highly Compensated Employees in
order of the ADPs, beginning with the highest of such
percentages).
1.35 Excess Elective Deferrals Those Elective Deferrals that are includible in a
Participant's gross income under Code Section 402(g) to the extent such
Participant's Elective Deferrals for a taxable year exceed the dollar limitation
under such Code Section. Excess Elective Deferrals shall be treated as Annual
Additions under the Plan, unless such amounts are distributed no later than the
first April 15th following the close of the Participant's taxable year.
1.36 Family Member The Employee's Spouse, any lineal descendants and ascendants
and the Spouse of such lineal descendants and ascendants.
1.37 First Distribution Calendar Year For distributions beginning before the
Participant's death, the First Distribution Calendar Year is the calendar year
immediately preceding the calendar year which contains the Participant's
Required Beginning Date. For distributions beginning after the Participant's
death, the First Distribution Calendar Year is the calendar year in which
distributions are required to begin pursuant to paragraph 7.10.
1.38 Fund All contributions received by the Trustee/Custodian under this Plan
and Trust/Custodial Account, investments thereof and earnings and appreciation
thereon.
1.39 Hardship An immediate and heavy financial need of the Employee where such
Employee lacks other available resources.
<PAGE>
1.40 Highest Average Compensation The average Compensation for the three
consecutive Years of Service with the Employer that produces the highest
average. A Year of Service with the Employer is the 12-consecutive month period
defined in the Adoption Agreement.
1.41 Highly Compensated Employee Any Employee who performs service for the
Employer during the determination year and who, during the immediate prior year:
(a) received Compensation from the Employer in excess of
$75,000 [as adjusted pursuant to Code Section
415(d)]; or
(b) received Compensation from the Employer in excess of
$50,000 [as adjusted pursuant to Code Section 415(d)]
and was a member of the Top-Paid Group for such year;
or
(c) was an officer of the Employer and received
Compensation during such year that is greater than 50
percent of the dollar limitation in effect under Code
Section 415(b)(1)(A).
Notwithstanding (a), (b) and (c), an Employee who was not Highly Compensated
during the preceding Plan Year shall not be treated as a Highly Compensated
Employee with respect to the current Plan Year unless such Employee is a member
of the 100 Employees paid the greatest Compensation during the year for which
such determination is being made.
(d) Employees who are five percent (5%) Owners at any
time during the immediate prior year or determination
year.
Highly Compensated Employee includes Highly Compensated active Employees and
Highly Compensated former Employees.
Hour Of Servicef Service
(a) Each hour for which an Employee is paid, or entitled
to payment, for the performance of duties for the
Employer. These hours shall be credited to the
Employee for the computation period in which the
duties are performed; and
(b) Each hour for which an Employee is paid, or entitled
to payment, by the Employer on account of a period of
time during which no duties are performed
(irrespective of whether the employment relationship
has terminated) due to vacation, holiday, illness,
incapacity (including disability), layoff, jury duty,
military duty or leave of absence. No more than 501
Hours of Service shall be credited under this
paragraph for any single continuous period (whether
or not such period occurs in a single computation
period). Hours under this paragraph shall be
calculated and credited pursuant to Section
2530.200b-2 of the Department of Labor Regulations
which are incorporated herein by this reference; and
<PAGE>
(c) Each hour for which back pay, irrespective of
mitigation of damages, is either awarded or agreed to
by the Employer. The same Hours of Service shall not
be credited both under paragraph (a) or paragraph
(b), as the case may be, and under this paragraph
(c). These hours shall be credited to the Employee
for the computation period or periods to which the
award or agreement pertains rather than the
computation period in which the award, agreement or
payment is made.
(d) Hours of Service shall be credited for employment
with the Employer and with other members of an
affiliated service group [as defined in Code Section
414(m)], a controlled group of corporations [as
defined in Code Section 414(b)], or a group of trades
or businesses under common control [as defined in
Code Section 414(c)] of which the adopting Employer
is a member, and any other entity required to be
aggregated with the Employer pursuant to Code Section
414(o) and the regulations thereunder. Hours of
Service shall also be credited for any individual
considered an Employee for purposes of this Plan
under Code Section 414(n) or Code Section 414(o) and
the regulations thereunder.
(e) Solely for purposes of determining whether a Break in
Service, as defined in paragraph 1.10, for
participation and vesting purposes has occurred in a
computation period, an individual who is absent from
work for maternity or paternity reasons shall receive
credit for the Hours of Service which would otherwise
have been credited to such individual but for such
absence, or in any case in which such hours cannot be
determined, 8 Hours of Service per day of such
absence. For purposes of this paragraph, an absence
from work for maternity or paternity reasons means an
absence by reason of the pregnancy of the individual,
by reason of a birth of a child of the individual, by
reason of the placement of a child with the
individual in connection with the adoption of such
child by such individual, or for purposes of caring
for such child for a period beginning immediately
following such birth or placement. The Hours of
Service credited under this paragraph shall be
credited in the computation period in which the
absence begins if the crediting is necessary to
prevent a Break in Service in that period, or in all
other cases, in the following computation period. No
more than 501 hours will be credited under this
paragraph.
(f) Hours of Service shall be determined on the basis of
the method selected in the Adoption Agreement.
<PAGE>
1.43 Key Employee Any Employee or former Employee (and the beneficiaries of such
employee) who at any time during the determination period was an officer of the
Employer if such individual's annual compensation exceeds 50% of the dollar
limitation under Code Section 415(b)(1)(A) (the defined benefit maximum annual
benefit), an owner (or considered an owner under Code Section 318) of one of the
ten largest interests in the employer if such individual's compensation exceeds
100% of the dollar limitation under Code Section 415(c)(1)(A), a 5% owner of the
Employer, or a 1% owner of the Employer who has an annual compensation of more
than $150,000. For purposes of determining who is a Key Employee, annual
compensation shall mean Compensation as defined for Article X, but including
amounts deferred through a salary reduction agreement to a cash or deferred plan
under Code Section 401(k), a Simplified Employee Pension Plan under Code Section
408(k), a cafeteria plan under Code Section 125 or a tax-deferred annuity under
Code Section 403(b). The determination period is the Plan Year containing the
Determination Date and the four preceding Plan Years. The determination of who
is a Key Employee will be made in accordance with Code Section 416(i)(1) and the
regulations thereunder.
1.44 Leased Employee 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 of a type historically performed by Employees in the business field
of the recipient Employer.
1.45 Limitation Year The calendar year or such other 12-consecutive month period
designated by the Employer in the Adoption Agreement for purposes of determining
the maximum Annual Addition to a Participant's account. All qualified plans
maintained by the Employer must use the same Limitation Year. If the Limitation
Year is amended to a different 12-consecutive month period, the new Limitation
Year must begin on a date within the Limitation Year in which the amendment is
made.
1.46 Master Or Prototype Plan A plan, the form of which is the subject of a
favorable opinion letter from the Internal Revenue Service.
1.47 Matching Contribution An Employer contribution made to this or any other
defined contribution plan on behalf of a Participant on account of an Employee
Voluntary Contribution made by such Participant, or on account of a
Participant's Elective Deferral, under a Plan maintained by the Employer.
1.48 Maximum Permissible Amount The maximum Annual Addition that may be
contributed or allocated to a Participant's account under the plan for any
Limitation Year shall not exceed the lesser of:
(a) the Defined Contribution Dollar Limitation, or
(b) 25% of the Participant's Compensation for the
Limitation Year.
The compensation limitation referred to in (b) shall not apply to any
contribution for medical benefits [within the meaning of Code Section 401(h) or
Code Section 419A(f)(2)] which is otherwise treated as an Annual Addition under
Code Section 415(l)(1) or 419(d)(2). If a short Limitation Year is created
<PAGE>
because of an amendment changing the Limitation Year to a different
12-consecutive month period, the Maximum Permissible Amount will not exceed the
Defined Contribution Dollar Limitation multiplied by the following fraction:
Number of months in the short Limitation Year divided by 12.
1.49 Net Profit The current and accumulated operating earnings of the Employer
before Federal and State income taxes, excluding nonrecurring or unusual items
of income, and before contributions to this and any other qualified plan of the
Employer. Alternatively, the Employer may fix another definition in the Adoption
Agreement.
1.50 Normal Retirement Age The age, set by the Employer in the Adoption
Agreement, at which a Participant may retire and receive his or her benefits
under the Plan.
1.51 Owner-Employee A sole proprietor, or a partner owning more than 10% of
either the capital or profits interest of the partnership.
1.52 Paired Plans Two or more Plans maintained by the Sponsor designed so that a
single or any combination of Plans adopted by an Employer will meet the
antidiscrimination rules, the contribution and benefit limitations, and the
Top-Heavy provisions of the Code.
1.53 Participant Any Employee who has met the eligibility requirements and is
participating in the Plan.
1.54 Participant's Benefit The account balance as of the last Valuation Date in
the calendar year immediately preceding the Distribution Calendar Year
(valuation calendar year) increased by the amount of any contributions or
forfeitures allocated to the account balance as of the dates in the valuation
calendar year after the Valuation Date and decreased by distributions made in
the valuation calendar year after the Valuation Date. A special exception exists
for the second distribution Calendar Year. For purposes of this paragraph, if
any portion of the minimum distribution for the First Distribution Calendar Year
is made in the second Distribution Calendar Year on or before the Required
Beginning Date, the amount of the minimum distribution made in the second
distribution calendar year shall be treated as if it had been made in the
immediately preceding Distribution Calendar Year.
1.55 Permissive Aggregation Group Used for Top-Heavy testing purposes, it is the
Required Aggregation Group of plans plus any other plan or plans of the Employer
which, when considered as a group with the Required Aggregation Group, would
continue to satisfy the requirements of Code Sections 401(a)(4) and 410.
1.56 Plan The Employer's retirement plan as embodied herein and in the Adoption
Agreement.
1.57 Plan Administrator The Employer.
1.58 Plan Year The 12-consecutive month period designated by the Employer in the
Adoption Agreement.
1.59 Present Value Used for Top-Heavy test and determination purposes, when
determining the Present Value of accrued benefits, with respect to any Defined
Benefit Plan maintained by the Employer, interest and mortality rates shall be
determined in accordance with the provisions of the respective plan. If
applicable, interest and mortality assumptions will be specified in Section 11
of the Adoption Agreement.
<PAGE>
1.60 Projected Annual Benefit Used to test the maximum benefit which may be
obtained from a combination of retirement plans, it is the annual retirement
benefit (adjusted to an actuarial equivalent straight life annuity if such
benefit is expressed in a form other than a straight life annuity or Qualified
Joint and Survivor Annuity) to which the Participant would be entitled under the
terms of a Defined Benefit Plan or plans, assuming:
(a) the Participant will continue employment until Normal
Retirement Age under the plan (or current age, if
later), and
(b) the Participant's Compensation for the current
Limitation Year and all other relevant factors used
to determine benefits under the plan will remain
constant for all future Limitation Years.
1.61 Qualified Deferred Compensation Plan Any pension, profit-sharing, stock
bonus, or other plan which meets the requirements of Code Section 401 and
includes a trust exempt from tax under Code Section 501(a) or any annuity plan
described in Code Section 403(a).
An Eligible Retirement Plan is an individual retirement account (IRA) as
described in Code Section 408(a), an individual retirement annuity (IRA) as
described in Code Section 408(b), an annuity plan as described in Code Section
403(a), or a qualified trust as described in Code Section 401(a), which accepts
Eligible Rollover Distributions. However in the case of an Eligible Rollover
Distribution to a Surviving Spouse, an Eligible Retirement Plan is an individual
retirement account or individual retirement annuity.
1.62 Qualified Domestic Relations Order A QDRO is a signed Domestic Relations
Order issued by a State Court which creates, recognizes or assigns to an
alternate payee(s) the right to receive all or part of a Participant's Plan
benefit and which meets the requirements of Code Section 414(p). An alternate
payee is a Spouse, former Spouse, child, or other dependent who is treated as a
beneficiary under the Plan as a result of the QDRO.
1.63 Qualified Early Retirement Age For purposes of paragraph 8.9, Qualified
Early Retirement Age is the latest of:
(a) the earliest date, under the Plan, on which the
Participant may elect to receive retirement benefits,
or
(b) the first day of the 120th month beginning before the
Participant reaches Normal Retirement Age, or
(c) the date the Participant begins participation.
1.64 Qualified Joint And Survivor Annuity An immediate annuity for the life of
the Participant with a survivor annuity for the life of the Participant's Spouse
which is at least one-half of but not more than the amount of the annuity
payable during the joint lives of the Participant and the Participant's Spouse.
The exact amount of the Survivor Annuity is to be specified by the Employer in
the Adoption Agreement. If not designated by the Employer, the Survivor Annuity
will be 1/2 of the amount paid to the Participant during his or her lifetime.
The Qualified Joint and Survivor Annuity will be the amount of benefit which can
be provided by the Participant's Vested Account Balance.
<PAGE>
1.65 Qualified Matching Contribution Matching Contributions which when made are
subject to the distribution and nonforfeitability requirements under Code
Section 401(k).
1.66 Qualified Non-Elective Contributions Contributions (other than Matching
Contributions or Qualified Matching Contributions) made by the Employer and
allocated to Participants' accounts that the Participants may not elect to
receive in cash until distributed from the Plan; that are nonforfeitable when
made; and that are distributable only in accordance with the distribution
provisions that are applicable to Elective Deferrals and Qualified Matching
Contributions.
1.67 Qualified Voluntary Contribution A tax-deductible voluntary Employee
contribution. These contributions may no longer be made to the Plan.
1.68 Required Aggregation Group Used for Top-Heavy testing purposes, it consists
of:
(a) each qualified plan of the Employer in which at least
one Key Employee participates or participated at any
time during the determination period (regardless of
whether the plan has terminated), and
(b) any other qualified plan of the Employer which
enables a plan described in (a) to meet the
requirements of Code Sections 401(a)(4) or 410.
1.69 Required Beginning Date The date on which a Participant is required to take
his or her first minimum distribution under the Plan. The rules are set forth at
paragraph 7.5.
1.70 Rollover Contribution A contribution made by a Participant of an amount
distributed to such Participant from another Qualified Deferred Compensation
Plan in accordance with Code Sections 402(a)(5), (6), and (7).
An Eligible Rollover Distribution is any distribution of all or any portion of
the balance to the credit of the Participant except that an Eligible Rollover
Distribution does not include:
(a) 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 Participant or the joint lives (or
joint life expectancies) of the Participant and the
Participant's Designated Beneficiary, or for a
specified period of ten years or more;
(b) any distribution to the extent such distribution is
required under Code Section 401(a)(9); and
(c) the portion of any distribution that is not
includible in gross income (determined without regard
to the exclusion for net unrealized appreciation with
respect to Employer securities).
A Direct Rollover is a payment by the plan to the Eligible Retirement Plan
specified by the Participant.
<PAGE>
1.71 Salary Savings Agreement An agreement between the Employer and a
participating Employee where the Employee authorizes the Employer to withhold a
specified percentage of his or her Compensation for deposit to the Plan on
behalf of such Employee.
1.72 Self-Employed Individual An individual who has Earned Income for the
taxable year from the trade or business for which the Plan is established
including an individual who would have had Earned Income but for the fact that
the trade or business had no Net Profit for the taxable year.
1.73 Service The period of current or prior employment with the Employer. If the
Employer maintains a plan of a predecessor employer, Service for such
predecessor shall be treated as Service for the Employer.
Shareholder Employee An Employee or Officer who owns [or is considered as owning
within the meaning of Code Section 318(a)(1)], on any day during the taxable
year of an electing small business corporation (S Corporation), more than 5% of
such corporation's outstanding stock.
1.75 Simplified Employee Pension Plan An individual retirement account which
meets the requirements of Code Section 408(k), and to which the Employer makes
contributions pursuant to a written formula. These plans are considered for
contribution limitation and Top-Heavy testing purposes.
1.76 Sponsor Security National Bank And Trust Co., or any successor(s) or
assign(s).
1.77 Spouse (Surviving Spouse) The Spouse or Surviving Spouse of the
Participant, provided that a former Spouse will be treated as the Spouse or
Surviving Spouse and a current Spouse will not be treated as the Spouse or
Surviving Spouse to the extent provided under a Qualified Domestic Relations
Order as described in Code Section 414(p).
1.78 Super Top-Heavy Plan A Plan described at paragraph 1.81 under which the
Top-Heavy Ratio [as defined at paragraph 1.82] exceeds 90%.
1.79 Taxable Wage Base For plans with an allocation formula which takes into
account the Employer's contribution under the Federal Insurance Contributions
Act (FICA), the maximum amount of earnings which may be considered wages for
such Plan Year under the Social Security Act [Code Section 3121(a)(1)], or the
amount elected by the Employer in the Adoption Agreement.
1.80 Top-Heavy Determination Date For any Plan Year subsequent to the first Plan
Year, the last day of the preceding Plan Year. For the first Plan Year of the
Plan, the last day of that year.
1.81 Top-Heavy Plan For any Plan Year beginning after 1983, the Employer's Plan
is top-heavy if any of the following conditions exist:
(a) If the Top-Heavy Ratio for the Employer's Plan
exceeds 60% and this Plan is not part of any required
Aggregation Group or Permissive Aggregation Group of
Plans.
(b) If the Employer's plan is a part of a Required
Aggregation Group of plans but not part of a
Permissive Aggregation Group and the Top-Heavy Ratio
for the group of plans exceeds 60%.
<PAGE>
(c) If the Employer's plan is a part of a Required
Aggregation Group and part of a Permissive
Aggregation Group of plans and the Top-Heavy Ratio
for the Permissive Aggregation Group exceeds 60%.
1.82 Top-Heavy Ratio
(a) If the Employer maintains one or more Defined
Contribution plans (including any Simplified Employee
Pension Plan) and the Employer has not maintained any
Defined Benefit Plan which during the 5-year period
ending on the Determination Date(s) has or has had
accrued benefits, the Top-Heavy Ratio for this Plan
alone, or for the Required or Permissive Aggregation
Group as appropriate, is a fraction,
(1) the numerator of which is the sum of the
account balances of all Key Employees as of
the Determination Date(s) [including any
part of any account balance distributed in
the 5-year period ending on the
Determination Date(s)], and
(2) the denominator of which is the sum of all
account balances [including any part of any
account balance distributed in the 5-year
period ending on the Determination Date(s)],
both computed in accordance with Code
Section 416 and the regulations thereunder.
Both the numerator and denominator of the Top-Heavy
Ratio are increased to reflect any contribution not
actually made as of the Determination Date, but which
is required to be taken into account on that date
under Code Section 416 and the regulations
thereunder.
(b) If the Employer maintains one or more Defined
Contribution Plans (including any Simplified Employee
Pension Plan) and the Employer maintains or has
maintained one or more Defined Benefit Plans which
during the 5-year period ending on the Determination
Date(s) has or has had any accrued benefits, the
Top-Heavy Ratio for any Required or Permissive
Aggregation Group as appropriate is a fraction, the
numerator of which is the sum of account balances
under the aggregated Defined Contribution Plan or
Plans for all Key Employees, determined in accordance
with (a) above, and the Present Value of accrued
benefits under the aggregated Defined Benefit Plan or
Plans for all Key Employees as of the Determination
Date(s), and the denominator of which is the sum of
the account balances under the aggregated Defined
Contribution Plan or Plans for all Participants,
determined in accordance with (a) above, and the
Present Value of accrued benefits under the Defined
Benefit Plan or Plans for all Participants as of the
Determination Date(s), all determined in accordance
<PAGE>
with Code Section 416 and the regulations thereunder.
The accrued benefits under a Defined Benefit Plan in
both the numerator and denominator of the Top-Heavy
Ratio are increased for any distribution of an
accrued benefit made in the 5-year period ending on
the Determination Date.
(c) For purposes of (a) and (b) above, the value of
account balances and the Present Value of accrued
benefits will be determined as of the most recent
Valuation Date that falls within or ends with the
12-month period ending on the Determination Date,
except as provided in Code Section 416 and the
regulations thereunder for the first and second plan
years of a Defined Benefit Plan. The account balances
and accrued benefits of a participant (1) who is not
a Key Employee but who was a Key Employee in a prior
year, or (2) who has not been credited with at least
one hour of service with any Employer maintaining the
Plan at any time during the 5-year period ending on
the Determination Date, will be disregarded. The
calculation of the Top-Heavy Ratio, and the extent to
which distributions, rollovers, and transfers are
taken into account will be made in accordance with
Code Section 416 and the regulations thereunder.
Qualified Voluntary Employee Contributions will not
be taken into account for purposes of computing the
Top-Heavy Ratio. When aggregating plans the value of
account balances and accrued benefits will be
calculated with reference to the Determination Dates
that fall within the same calendar year. The accrued
benefit of a Participant other than a Key Employee
shall be determined under (1) the method, if any,
that uniformly applies for accrual purposes under all
Defined Benefit Plans maintained by the Employer, or
(2) if there is no such method, as if such benefit
accrued not more rapidly than the slowest accrual
rate permitted under the fractional rule of Code
Section 411(b)(1)(C).
1.83 Top-Paid Group The group consisting of the top 20% of Employees when ranked
on the basis of Compensation paid during such year. For purposes of determining
the number of Employees in the group (but not who is in it), the following
Employees shall be excluded:
(a) Employees who have not completed 6 months of Service.
(b) Employees who normally work less than 17-1/2 hours
per week.
(c) Employees who normally do not work more than 6 months
during any year.
(d) Employees who have not attained age 21.
<PAGE>
(e) Employees included in a collective bargaining unit,
covered by an agreement between employee
representatives and the Employer, where retirement
benefits were the subject of good faith bargaining
and provided that 90% or more of the Employer's
Employees are covered by the agreement.
(f) Employees who are nonresident aliens and who receive
no earned income which constitutes income from
sources within the United States.
1.84 Transfer Contribution A non-taxable transfer of a Participant's benefit
directly from a Qualified Deferred Compensation Plan to this Plan.
1.85 Trustee The Sponsor of this Prototype or the individual(s) appointed by the
Employer in the Adoption Agreement.
1.86 Valuation Date The last day of the Plan Year or such other date as agreed
to by the Employer and the Trustee/Custodian on which Participant accounts are
revalued in accordance with Article V hereof. For Top-Heavy purposes, the date
selected by the Employer as of which the Top-Heavy Ratio is calculated.
1.87 Vested Account Balance The aggregate value of the Participant's Vested
Account Balances derived from Employer and Employee contributions (including
Rollovers), whether vested before or upon death, including the proceeds of
insurance contracts, if any, on the Participant's life. The provisions of
Article VIII shall apply to a Participant who is vested in amounts attributable
to Employer contributions, Employee contributions (or both) at the time of death
or distribution.
1.88 Voluntary Contribution An Employee contribution made to the Plan by or on
behalf of a Participant that is included in the Participant's gross income in
the year in which made and that is maintained under a separate account to which
earnings and losses are allocated.
1.89 Welfare Benefit Fund Any fund that is part of a plan of the Employer, or
has the effect of a plan, through which the Employer provides welfare benefits
to Employees or their beneficiaries. For these purposes, Welfare Benefits means
any benefit other than those with respect to which Code Section 83(h) (relating
to transfers of property in connection with the performance of services), Code
Section 404 (relating to deductions for contributions to an Employee's trust or
annuity and Compensation under a deferred payment plan), Code Section 404A
(relating to certain foreign deferred compensation plans) apply. A "Fund" is any
social club, voluntary employee benefit association, supplemental unemployment
benefit trust or qualified group legal service organization described in Code
Section 501(c)(7), (9), (17) or (20); any trust, corporation, or other
organization not exempt from income tax, or to the extent provided in
regulations, any account held for an Employer by any person.
1.90 Year Of Service A 12-consecutive month period during which an Employee is
credited with not less than 1,000 (or such lesser number as specified by the
Employer in the Adoption Agreement) Hours of Service.
<PAGE>
ARTICLE II
ELIGIBILITY REQUIREMENTS
2.1 Participation Employees who meet the eligibility requirements in the
Adoption Agreement on the Effective Date of the Plan shall become Participants
as of the Effective Date of the Plan. If so elected in the Adoption Agreement,
all Employees employed on the Effective Date of the Plan may participate, even
if they have not satisfied the Plan's specified eligibility requirements. Other
Employees shall become Participants on the Entry Date coinciding with or
immediately following the date on which they meet the eligibility requirements.
The Employee must satisfy the eligibility requirements specified in the Adoption
Agreement and be employed on the Entry Date to become a Participant in the Plan.
In the event an Employee who is not a member of the eligible class of Employees
becomes a member of the eligible class, such Employee shall participate
immediately if such Employee has satisfied the minimum age and service
requirements and would have previously become a Participant had he or she been
in the eligible class. A former Participant shall again become a Participant
upon returning to the employ of the Employer at the next Entry Date or if
earlier, the next Valuation Date. For this purpose, Participant's Compensation
and Service shall be considered from date of rehire.
2.2 Change In Classification Of Employment In the event a Participant becomes
ineligible to participate because he or she is no longer a member of an eligible
class of Employees, such Employee shall participate upon his or her return to an
eligible class of Employees.
2.3 Computation Period To determine Years of Service and Breaks in Service for
purposes of eligibility, the 12-consecutive month period shall commence on the
date on which an Employee first performs an Hour of Service for the Employer and
each anniversary thereof, such that the succeeding 12-consecutive month period
commences with the employee's first anniversary of employment and so on. If,
however, the period so specified is one year or less, the succeeding
12-consecutive month period shall commence on the first day of the Plan Year
prior to the anniversary of the date they first performed an Hour of Service
regardless of whether the Employee is entitled to be credited with 1,000 (or
such lesser number as specified by the Employer in the Adoption Agreement) Hours
of Service during their first employment year.
2.4 Employment Rights Participation in the Plan shall not confer upon a
Participant any employment rights, nor shall it interfere with the Employer's
right to terminate the employment of any Employee at any time.
2.5 Service With Controlled Groups All Years of Service with other members of a
controlled group of corporations [as defined in Code Section 414(b)], trades or
businesses under common control [as defined in Code Section 414(c)], or members
of an affiliated service group [as defined in Code Section 414(m)] shall be
credited for purposes of determining an Employee's eligibility to participate.
2.6 Owner-Employees If this Plan provides contributions or benefits for one or
more Owner-Employees who control both the business for which this Plan is
established and one or more other trades or businesses, this Plan and the Plan
established for other trades or businesses must, when looked at as a single
Plan, satisfy Code Sections 401(a) and (d) for the Employees of this and all
other trades or businesses.
<PAGE>
If the Plan provides contributions or benefits for one or more Owner-Employees
who control one or more other trades or businesses, the Employees of the other
trades or businesses must be included in a Plan which satisfies Code Sections
401(a) and (d) and which provides contributions and benefits not less favorable
than provided for Owner-Employees under this Plan.
If an individual is covered as an Owner-Employee under the plans of two or more
trades or businesses which are not controlled, and the individual controls a
trade or business, then the contributions or benefits of the Employees under the
plan of the trades or businesses which are controlled must be as favorable as
those provided for him or her under the most favorable plan of the trade or
business which is not controlled.
For purposes of the preceding sentences, an Owner-Employee, or two or more
Owner-Employees, will be considered to control a trade or business if the
Owner-Employee, or two or more Owner-Employees together:
(a) own the entire interest in an unincorporated trade or
business, or
(b) in the case of a partnership, own more than 50% of
either the capital interest or the profits interest
in the partnership.
For purposes of the preceding sentence, an Owner-Employee, or two or more
Owner-Employees shall be treated as owning any interest in a partnership which
is owned, directly or indirectly, by a partnership which such Owner-Employee, or
such two or more Owner-Employees, are considered to control within the meaning
of the preceding sentence.
2.7 Leased Employees Any Leased Employee shall be treated as an Employee of the
recipient Employer; however, contributions or benefits provided by the leasing
organization which are attributable to services performed for the recipient
Employer shall be treated as provided by the recipient Employer. A Leased
Employee shall not be considered an Employee of the recipient if such Employee
is covered by a money purchase pension plan providing:
(a) a non-integrated Employer contribution rate of at
least 10% of Compensation, [as defined in Code
Section 415(c)(3) but including amounts contributed
by the Employer pursuant to a salary reduction
agreement, which are excludable from the Employee's
gross income under a cafeteria plan covered by Code
Section 125, a cash or deferred profit-sharing plan
under Section 401(k) of the Code, a Simplified
Employee Pension Plan under Code Section 402(h)(1)(B
) and a tax-sheltered annuity under Code Section
403(b)],
(b) immediate participation, and
(c) full and immediate vesting.
This exclusion is only available if Leased Employees do not constitute more than
twenty percent (20%) of the recipient's non-highly compensated work force.
<PAGE>
2.8 Thrift Plans If the Employer makes an election in the Adoption Agreement to
require Voluntary Contributions to participate in this Plan, the Employer shall
notify each eligible Employee in writing of his or her eligibility for
participation at least 30 days prior to the appropriate Entry Date. The Employee
shall indicate his or her intention to join the Plan by authorizing the Employer
to withhold a percentage of his or her Compensation as provided in the Plan.
Such authorization shall be returned to the Employer at least 10 days prior to
the Employee's Entry Date. The Employee may decline participation by so
indicating on the enrollment form or by failure to return the enrollment form to
the Employer prior to the Employee's Entry Date. If the Employee declines to
participate, such Employee shall be given the opportunity to join the Plan on
the next Entry Date. The taking of a Hardship Withdrawal under the provisions of
paragraph 6.9 will impact the Participant's ability to make these contributions.
<PAGE>
ARTICLE III
EMPLOYER CONTRIBUTIONS
3.1 Amount The Employer intends to make periodic contributions to the Plan in
accordance with the formula or formulas selected in the Adoption Agreement.
However, the Employer's contribution for any Plan Year shall be subject to the
limitations on allocations contained in Article X.
3.2 Expenses And Fees The Employer shall also be authorized to reimburse the
Fund for all expenses and fees incurred in the administration of the Plan or
Trust/Custodial Account and paid out of the assets of the Fund. Such expenses
shall include, but shall not be limited to, fees for professional services,
printing and postage. Brokerage commissions may not be reimbursed.
3.3 Responsibility For Contributions Neither the Trustee/Custodian nor the
Sponsor shall be required to determine if the Employer has made a contribution
or if the amount contributed is in accordance with the Adoption Agreement or the
Code. The Employer shall have sole responsibility in this regard. The
Trustee/Custodian shall be accountable solely for contributions actually
received by it, within the limits of Article XI.
3.4 Return Of Contributions Contributions made to the Fund by the Employer shall
be irrevocable except as provided below:
(a) Any contribution forwarded to the Trustee/Custodian
because of a mistake of fact, provided that the
contribution is returned to the Employer within one
year of the contribution.
(b) In the event that the Commissioner of Internal
Revenue determines that the Plan is not initially
qualified under the Internal Revenue Code, any
contribution made incident to that initial
qualification by the Employer must be returned to the
Employer within one year after the date the initial
qualification is denied, but only if the application
for the qualification is made by the time prescribed
by law for filing the Employer's return for the
taxable year in which the Plan is adopted, or such
later date as the Secretary of the Treasury may
prescribe.
(c) Contributions forwarded to the Trustee/Custodian are
presumed to be deductible and are conditioned on
their deductibility. Contributions which are
determined to not be deductible will be returned to
the Employer.
<PAGE>
ARTICLE IV
EMPLOYEE CONTRIBUTIONS
4.1 Voluntary Contributions An Employee may make Voluntary Contributions to the
Plan established hereunder if so authorized by the Employer in a uniform and
nondiscriminatory manner. Such contributions are subject to the limitations on
Annual Additions and are subject to antidiscrimination testing.
4.2 Qualified Voluntary Contributions A Participant may no longer make Qualified
Voluntary Contributions to the Plan. Amounts already contributed may remain in
the Trust Fund/Custodial Account until distributed to the Participant. Such
amounts will be maintained in a separate account which will be nonforfeitable at
all times. The account will share in the gains and losses of the Trust in the
same manner as described at paragraph 5.4 of the Plan. No part of the Qualified
Voluntary Contribution account will be used to purchase life insurance. Subject
to Article VIII, Joint and Survivor Annuity Requirements (if applicable), the
Participant may withdraw any part of the Qualified Voluntary Contribution
account by making a written application to the Plan Administrator.
4.3 Rollover Contribution Unless provided otherwise in the Adoption Agreement, a
Participant may make a Rollover Contribution to any Defined Contribution Plan
established hereunder of all or any part of an amount distributed or
distributable to him or her from a Qualified Deferred Compensation Plan
provided:
(a) the amount distributed to the Participant is
deposited to the Plan no later than the sixtieth day
after such distribution was received by the
Participant,
(b) the amount distributed is not one of a series of
substantially equal periodic payments made for the
life (or life expectancy) of the Participant or the
joint lives (or joint life expectancies) of the
Participant and the Participant's Designated
Beneficiary, or for a specified period of ten years
or more;
(c) the amount distributed is not required under Code
Section 401(a)(9);
(d) if the amount distributed included property such
property is rolled over, or if sold the proceeds of
such property may be rolled over,
(e) the amount distributed is not includible in gross
income (determined without regard to the exclusion
for net unrealized appreciation with respect to
employer securities).
In addition, if the Adoption Agreement allows Rollover Contributions, the Plan
will also accept any Eligible Rollover Distribution (as defined at paragraph
1.70) directly to the Plan.
Rollover Contributions, which relate to distributions prior to January 1, 1993,
must be made in accordance with paragraphs (a) through (e) and additionally meet
the requirements of paragraph (f):
<PAGE>
(f) The distribution from the Qualified Deferred
Compensation Plan constituted the Participant's
entire interest in such Plan and was distributed
within one taxable year to the Participant:
(1) on account of separation from Service, a
Plan termination, or in the case of a
profit-sharing or stock bonus plan, a
complete discontinuance of contributions
under such plan within the meaning of Code
Section 402(a)(6)(A), or
(2) in one or more distributions which
constitute a qualified lump sum distribution
within the meaning of Code Section
402(e)(4)(A), determined without reference
to subparagraphs (B) and (H).
Such Rollover Contribution may also be made through an individual retirement
account qualified under Code Section 408 where the IRA was used as a conduit
from the Qualified Deferred Compensation Plan, the Rollover Contribution is made
in accordance with the rules provided under paragraphs (a) through (e) and the
Rollover Contribution does not include any regular IRA contributions, or
earnings thereon, which the Participant may have made to the IRA. Rollover
Contributions, which relate to distributions prior to January 1, 1993, may be
made through an IRA in accordance with paragraphs (a) through (f) and additional
requirements as provided in the previous sentence. The Trustee/Custodian shall
not be held responsible for determining the tax-free status of any Rollover
Contribution made under this Plan.
4.4 Transfer Contribution Unless provided otherwise in the Adoption Agreement a
Participant may, subject to the provisions of paragraph 4.5, also arrange for
the direct transfer of his or her benefit from a Qualified Deferred Compensation
Plan to this Plan. For accounting and record keeping purposes, Transfer
Contributions shall be treated in the same manner as Rollover Contributions.
In the event the Employer accepts a Transfer Contribution from a Plan in which
the Employee was directing the investments of his or her account, the Employer
may continue to permit the Employee to direct his or her investments in
accordance with paragraph 13.7 with respect only to such Transfer Contribution.
Notwithstanding the above, the Employer may refuse to accept such Transfer
Contributions.
4.5 Employer Approval Of Transfer Contributions The Employer maintaining a
Safe-Harbor Profit-Sharing Plan in accordance with the provisions of paragraph
8.7, acting in a nondiscriminatory manner, may in its sole discretion refuse to
allow Transfer Contributions to its profit-sharing plan, if such contributions
are directly or indirectly being transferred from a defined benefit plan, a
money purchase pension plan (including a target benefit plan), a stock bonus
plan, or another profit-sharing plan which would otherwise provide for a life
annuity form of payment to the Participant.
4.6 Elective Deferrals A Participant may enter into a Salary Savings Agreement
with the Employer authorizing the Employer to withhold a portion of such
Participant's Compensation not to exceed $7,000 per calendar year as adjusted
under Code Section 415(d) or, if lesser, the percentage of Compensation
specified in the Adoption Agreement and to deposit such amount to the Plan. No
Participant shall be permitted to have Elective Deferrals made under this Plan
or any other qualified plan maintained by the Employer, during any taxable year,
<PAGE>
in excess of the dollar limitation contained in Code Section 402(g) in effect at
the beginning of such taxable year. Thus, the $7,000 limit may be reduced if a
Participant contributes pre-tax contributions to qualified plans of this or
other Employers. Any such contribution shall be credited to the Employee's
Salary Savings Account. Unless otherwise specified in the Adoption Agreement, a
Participant may amend his or her Salary Savings Agreement to increase, decrease
or terminate the percentage upon 30 days written notice to the Employer. If a
Participant terminates his or her agreement, such Participant shall not be
permitted to put a new Salary Savings Agreement into effect until the first pay
period in the next Plan Year, unless otherwise stated in the Adoption Agreement.
The Employer may also amend or terminate said agreement on written notice to the
Participant. If a Participant has not authorized the Employer to withhold at the
maximum rate and desires to increase the total withheld for a Plan Year, such
Participant may authorize the Employer upon 30 days notice to withhold a
supplemental amount up to 100% of his or her Compensation for one or more pay
periods. In no event may the sum of the amounts withheld under the Salary
Savings Agreement plus the supplemental withholding exceed 25% of a
Participant's Compensation for a Plan Year. The Employer may also recharacterize
as after-tax Voluntary Contributions all or any portion of amounts previously
withheld under any Salary Savings Agreement within the Plan Year as provided for
at paragraph 10.9. This may be done to insure that the Plan will meet one of the
antidiscrimination tests under Code Section 401(k). Elective Deferrals shall be
deposited in the Trust within 30 days after being withheld from the
Participant's pay.
4.7 Required Voluntary Contributions If the Employer makes a thrift election in
the Adoption Agreement, each eligible Participant shall be required to make
Voluntary Contributions to the Plan for credit to his or her account as provided
in the Adoption Agreement. Such Voluntary Contributions shall be withheld from
the Employee's Compensation and shall be transmitted by the Employer to the
Trustee/Custodian as agreed between the Employer and Trustee/Custodian. A
Participant may discontinue participation or change his or her Voluntary
Contribution percentage by so advising the Employer at least 10 days prior to
the date on which such discontinuance or change is to be effective. If a
Participant discontinues his or her Voluntary Contributions, such Participant
may not again authorize Voluntary Contributions for a period of one year from
the date of discontinuance. A Participant may voluntarily change his or her
Voluntary Contribution percentage once during any Plan Year and may also agree
to have a reduction in his or her contribution, if required to satisfy the
requirements of the ACP test.
4.8 Direct Rollover of Benefits Notwithstanding any provision of the Plan to the
contrary that would otherwise limit a Participant's election under this
paragraph, for distributions made on or after January 1, 1993, a Participant may
elect, at the time and in the manner prescribed by the Plan Administrator, to
have any portion of an Eligible Rollover Distribution paid directly to an
Eligible Retirement Plan specified by the Participant in a Direct Rollover. Any
portion of a distribution which is not paid directly to an Eligible Retirement
Plan shall be distributed to the Participant. For purposes of this paragraph, a
Surviving Spouse or a Spouse or former Spouse who is an alternate payee under a
Qualified Domestic Relations Order as defined in Code Section 414(p), will be
permitted to elect to have any Eligible Rollover Distribution paid directly to
an individual retirement account (IRA) or an individual retirement annuity
(IRA).
The plan provisions otherwise applicable to distributions continue to apply to
Rollover and Transfer Contributions.
<PAGE>
ARTICLE V
PARTICIPANT ACCOUNTS
5.1 Separate Accounts The Employer shall establish a separate bookkeeping
account for each Participant showing the total value of his or her interest in
the Fund. Each Participant's account shall be separated for bookkeeping purposes
into the following sub-accounts:
(a) Employer contributions.
(1) Matching Contributions.
(2) Qualified Matching Contributions.
(3) Qualified Non-Elective Contributions.
(4) Discretionary Contributions.
(5) Elective Deferrals.
(b) Voluntary Contributions (and additional amounts
including required contributions and, if applicable,
either repayments of loans previously defaulted on
and treated as "deemed distributions" on which a tax
report has been issued, and amounts paid out upon a
separation from service which have been included in
income and which are repaid after being re-hired by
the Employer).
(c) Qualified Voluntary Contributions (if the Plan
previously accepted these).
(d) Rollover Contributions and Transfer Contributions.
5.2 Adjustments To Participant Accounts As of each Valuation Date of the Plan,
the Employer shall add to each account:
(a) the Participant's share of the Employer's
contribution and forfeitures as determined in the
Adoption Agreement,
(b) any Elective Deferrals, Voluntary, Rollover or
Transfer Contributions made by the Participant,
(c) any repayment of amounts previously paid out to a
Participant upon a separation from Service and repaid
by the Participant since the last Valuation Date, and
(d) the Participant's proportionate share of any
investment earnings and increase in the fair market
value of the Fund since the last Valuation Date, as
determined at paragraph 5.4.
The Employer shall deduct from each account:
(e) any withdrawals or payments made from the
Participant's account since the last Valuation Date,
and
<PAGE>
(f) the Participant's proportionate share of any decrease
in the fair market value of the Fund since the last
Valuation Date, as determined at paragraph 5.4.
5.3 Allocating Employer Contributions The Employer's contribution shall be
allocated to Participants in accordance with the allocation formula selected by
the Employer in the Adoption Agreement, and the minimum contribution and
allocation requirements for Top-Heavy Plans. Beginning with the 1990 Plan Year
and thereafter, for plans on Standardized Adoption Agreement 001, Participants
who are credited with more than 500 Hours of Service or are employed on the last
day of the Plan Year must receive a full allocation of Employer contributions.
In Nonstandardized Adoption Agreement 002, Employer contributions shall be
allocated to the accounts of Participants employed by the Employer on the last
day of the Plan Year unless indicated otherwise in the Adoption Agreement. In
the case of a non-Top-Heavy, Nonstandardized Plan, Participants must also have
completed a Year of Service unless otherwise specified in the Adoption
Agreement. For Nonstandardized Adoption Agreement 002, the Employer may only
apply the last day of the Plan Year and Year of Service requirements if the Plan
satisfies the requirements of Code Sections 401(a)(26) and 410(b) and the
regulations thereunder including the exception for 401(k) plans. If, when
applying the last day and Year of Service requirements, the Plan fails to
satisfy the aforementioned requirements, additional Participants will be
eligible to receive an allocation of Employer Contributions until the
requirements are satisfied. Participants who are credited with a Year of
Service, but not employed at Plan Year end, are the first category of additional
Participants eligible to receive an allocation. If the requirements are still
not satisfied, Participants credited with more than 500 Hours of Service and
employed at Plan Year end are the next category of Participants eligible to
receive an allocation. Finally, if necessary to satisfy the said requirements,
any Participant credited with more than 500 Hours of Service will be eligible
for an allocation of Employer Contributions. The Service requirement is not
applicable with respect to any Plan Year during which the Employer's Plan is
Top-Heavy.
5.4 Allocating Investment Earnings And Losses A Participant's share of
investment earnings and any increase or decrease in the fair market value of the
Fund shall be based on the proportionate value of all active accounts (other
than accounts with segregated investments) as of the last Valuation Date less
withdrawals since the last Valuation Date. If Employer contributions are made
monthly, quarterly, or on some other systematic basis, the adjusted value of
such accounts for allocation of investment income and gains or losses shall
include one-half the Employer contributions for such period. If contributions
are not made on a systematic basis, it is assumed that they are made at the end
of the valuation period and therefore will not receive an allocation of
investment earnings and gains or losses for such period. Account balances not
yet forfeited shall receive an allocation of earnings and/or losses. Accounts
with segregated investments shall receive only the income or loss on such
segregated investments.
5.5 Participant Statements Upon completing the allocations described above for
the Valuation Date coinciding with the end of the Plan Year, the Employer shall
prepare a statement for each Participant showing the additions to and
subtractions from his or her account since the last such statement and the fair
market value of his or her account as of the current Valuation Date. Employers
so choosing may prepare Participant statements for each Valuation Date.
<PAGE>
ARTICLE VI
RETIREMENT BENEFITS AND DISTRIBUTIONS
6.1 Normal Retirement Benefits A Participant shall be entitled to receive the
balance held in his or her account from Employer contributions upon attaining
Normal Retirement Age or at such earlier dates as the provisions of this Article
VI may allow. If the Participant elects to continue working past his or her
Normal Retirement Age, he or she will continue as an active Plan Participant and
no distribution shall be made to such Participant until his or her actual
retirement date unless the employer elects otherwise in the Adoption Agreement,
or a minimum distribution is required by law. Settlement shall be made in the
normal form, or if elected, in one of the optional forms of payment provided
below.
6.2 Early Retirement Benefits If the Employer so provides in the Adoption
Agreement, an Early Retirement Benefit will be available to individuals who meet
the age and Service requirements. An individual who meets the Early Retirement
Age requirements and separates from Service, will become fully vested,
regardless of any vesting schedule which otherwise might apply. If a Participant
separates from Service before satisfying the age requirements, but after having
satisfied the Service requirement, the Participant will be entitled to elect an
Early Retirement benefit upon satisfaction of the age requirement.
6.3 Benefits On Termination Of Employmentmployment
(a) If a Participant terminates employment prior to
Normal Retirement Age, such Participant shall be
entitled to receive the vested balance held in his or
her account payable at Normal Retirement Age in the
normal form, or if elected, in one of the optional
forms of payment provided hereunder. If applicable,
the Early Retirement Benefit provisions may be
elected. Notwithstanding the preceding sentence, a
former Participant may, if allowed in the Adoption
Agreement, make application to the Employer
requesting early payment of any deferred vested and
nonforfeitable benefit due.
(b) If a Participant terminates employment, and the value
of that Participant's Vested Account Balance derived
from Employer and Employee contributions is not
greater than $3,500, the Participant may receive a
lump sum distribution of the value of the entire
vested portion of such account balance and the
non-vested portion will be treated as a forfeiture.
The Employer shall continue to follow their
consistent policy, as may be established, regarding
immediate cash-outs of Vested Account Balances of
$3,500 or less. For purposes of this Article, if the
value of a Participant's Vested Account Balance is
zero, the Participant shall be deemed to have
received a distribution of such Vested Account
Balance immediately following termination. Likewise,
if the Participant is reemployed prior to incurring 5
consecutive 1-year Breaks in Service they will be
<PAGE>
deemed to have immediately repaid such distribution.
For Plan Years beginning prior to 1989, a
Participant's Vested Account Balance shall not
include Qualified Voluntary Contributions.
Notwithstanding the above, if the Employer maintains
or has maintained a policy of not distributing any
amounts until the Participant's Normal Retirement
Age, the Employer can continue to uniformly apply
such policy.
(c) If a Participant terminates employment with a Vested
Account Balance derived from Employer and Employee
contributions in excess of $3,500, and elects (with
his or her Spouse's consent, if required) to receive
100% of the value of his or her Vested Account
Balance in a lump sum, the non-vested portion will be
treated as a forfeiture. The Participant (and his or
her Spouse, if required) must consent to any
distribution, when the Vested Account Balance
described above exceeds $3,500 or if at the time of
any prior distribution it exceeded $3,500. For
purposes of this paragraph, for Plan Years beginning
prior to 1989, a Participant's Vested Account Balance
shall not include Qualified Voluntary Contributions.
(d) Distribution of less than 100% of the Participant's
Vested Account Balance shall only be permitted if the
Participant is fully vested upon termination of
employment.
(e) If a Participant who is not 100% vested receives or
is deemed to receive a distribution pursuant to this
paragraph and resumes employment covered under this
Plan, the Participant shall have the right to repay
to the Plan the full amount of the distribution
attributable to Employer contributions on or before
the earlier of the date that the Participant incurs 5
consecutive 1-year Breaks in Service following the
date of distribution or five years after the first
date on which the Participant is subsequently
reemployed. In such event, the Participant's account
shall be restored to the value thereof at the time
the distribution was made and may further be
increased by the Plan's income and investment gains
and/or losses on the undistributed amount from the
date of distribution to the date of repayment.
(f) A Participant shall also have the option, to postpone
payment of his or her Plan benefits until the first
day of April following the calendar year in which he
or she attains age 70-1/2. Any balance of a
Participant's account resulting from his or her
Employee contributions not previously withdrawn, if
any, may be withdrawn by the Participant immediately
following separation from Service.
<PAGE>
(g) If a Participant ceases to be an active Employee as a
result of a Disability as defined at paragraph 1.21,
such Participant shall be able to make an application
for a disability retirement benefit payment. The
Participant's account balance will be deemed
"immediately distributable" as set forth in paragraph
6.4, and will be fully vested pursuant to paragraph
9.2.
6.4 Restrictions On Immediate Distributions
(a) An account balance is immediately distributable if
any part of the account balance could be distributed
to the Participant (or Surviving Spouse) before the
Participant attains (or would have attained if not
deceased) the later of the Normal Retirement Age or
age 62.
(b) If the value of a Participant's Vested Account
Balance derived from Employer and Employee
Contributions exceeds (or at the time of any prior
distribution exceeded) $3,500, and the account
balance is immediately distributable, the Participant
and his or her Spouse (or where either the
Participant or the Spouse has died, the survivor)
must consent to any distribution of such account
balance. The consent of the Participant and the
Spouse shall be obtained in writing within the 90-day
period ending on the annuity starting date, which is
the first day of the first period for which an amount
is paid as an annuity or any other form. The Plan
Administrator shall notify the Participant and the
Participant's Spouse of the right to defer any
distribution until the Participant's account balance
is no longer immediately distributable. Such
notification shall include a general description of
the material features, and an explanation of the
relative values of, the optional forms of benefit
available under the plan in a manner that would
satisfy the notice requirements of Code Section
417(a)(3), and shall be provided no less than 30 days
and no more than 90 days prior to the annuity
starting date.
(c) Notwithstanding the foregoing, only the Participant
need consent to the commencement of a distribution in
the form of a qualified Joint and Survivor Annuity
while the account balance is immediately
distributable. Furthermore, if payment in the form of
a Qualified Joint and Survivor Annuity is not
required with respect to the Participant pursuant to
paragraph 8.7 of the Plan, only the Participant need
consent to the distribution of an account balance
that is immediately distributable. Neither the
consent of the Participant nor the Participant's
Spouse shall be required to the extent that a
distribution is required to satisfy Code Section
401(a)(9) or Code Section 415. In addition, upon
termination of this Plan if the Plan does not offer
<PAGE>
an annuity option (purchased from a commercial
provider), the Participant's account balance may,
without the Participant's consent, be distributed to
the Participant or transferred to another Defined
Contribution Plan [other than an employee stock
ownership plan as defined in Code Section 4975(e)(7)]
within the same controlled group.
(d) For purposes of determining the applicability of the
foregoing consent requirements to distributions made
before the first day of the first Plan Year beginning
after 1988, the Participant's Vested Account Balance
shall not include amounts attributable to Qualified
Voluntary Contributions.
6.5 Normal Form Of Payment The normal form of payment for a profit- sharing plan
satisfying the requirements of paragraph 8.7 hereof shall be a lump sum with no
option for annuity payments. For all other plans, the normal form of payment
hereunder shall be a Qualified Joint and Survivor Annuity as provided under
Article VIII. A Participant whose Vested Account Balance derived from Employer
and Employee contributions exceeds $3,500, or if at the time of any prior
distribution it exceeded $3,500, shall (with the consent of his or her Spouse)
have the right to receive his or her benefit in a lump sum or in monthly,
quarterly, semi-annual or annual payments from the Fund over any period not
extending beyond the life expectancy of the Participant and his or her
Beneficiary. For purposes of this paragraph, for Plan Years prior to 1989, a
Participant's Vested Account Balance shall not include Qualified Voluntary
Contributions. The normal form of payment shall be automatic, unless the
Participant files a written request with the Employer prior to the date on which
the benefit is automatically payable, electing a lump sum or installment payment
option. No amendment to the Plan may eliminate one of the optional distribution
forms listed above.
6.6 Commencement Of Benefits
(a) Unless the Participant elects otherwise, distribution
of benefits will begin no later than the 60th day
after the close of the Plan Year in which the latest
of the following events occurs:
(1) the Participant attains age 65 (or
normal retirement age if earlier),
(2) the 10th anniversary of the year in
which the Participant commenced
participation in the Plan, or
(3) the Participant terminates Service
with the Employer.
(b) Notwithstanding the foregoing, the failure of a
Participant and Spouse (if necessary) to consent to a
distribution while a benefit is immediately
distributable, within the meaning of paragraph 6.4
hereof, shall be deemed an election to defer
commencement of payment of any benefit sufficient to
satisfy this paragraph.
<PAGE>
6.7 Claims Procedures Upon retirement, death, or other severance of employment,
the Participant or his or her representative may make application to the
Employer requesting payment of benefits due and the manner of payment. If no
application for benefits is made, the Employer shall automatically pay any
vested benefit due hereunder in the normal form at the time prescribed at
paragraph 6.4. If an application for benefits is made, the Employer shall
accept, reject, or modify such request and shall notify the Participant in
writing setting forth the response of the Employer and in the case of a denial
or modification the Employer shall:
(a) state the specific reason or reasons for the denial,
(b) provide specific reference to pertinent Plan
provisions on which the denial is based,
(c) provide a description of any additional material or
information necessary for the Participant or his
representative to perfect the claim and an
explanation of why such material or information is
necessary, and
(d) explain the Plan's claim review procedure as
contained in this Plan.
In the event the request is rejected or modified, the Participant or his or her
representative may within 60 days following receipt by the Participant or
representative of such rejection or modification, submit a written request for
review by the Employer of its initial decision. Within 60 days following such
request for review, the Employer shall render its final decision in writing to
the Participant or representative stating specific reasons for such decision. If
the Participant or representative is not satisfied with the Employer's final
decision, the Participant or representative can institute an action in a federal
court of competent jurisdiction; for this purpose, process would be served on
the Employer.
6.8 In-Service Withdrawals An Employee may withdraw all or any part of the fair
market value of his or her Mandatory Contributions, Voluntary Contributions,
Qualified Voluntary Contributions or Rollover Contributions, upon written
request to the Employer. Transfer Contributions, which originate from a Plan
meeting the safe-harbor provisions of paragraph 8.7, may also be withdrawn by an
Employee upon written request to the Employer. Transfer Contributions not
meeting the safe-harbor provisions may only be withdrawn upon retirement, death,
Disability, termination or termination of the Plan, and will be subject to
Spousal consent requirements contained in Code Sections 411(a)(11) and 417. No
such withdrawals are permitted from a money purchase plan until the participant
reaches Normal Retirement Age. Such request shall include the Employee's
address, social security number, birthdate, and amount of the withdrawal. If at
the time a distribution of Qualified Voluntary Contributions is received the
Participant has not attained age 59-1/2 and is not disabled, as defined at Code
Section 22(e)(3), the Participant will be subject to a federal income tax
penalty, unless the distribution is rolled over to a qualified plan or
individual retirement plan within 60 days of the date of distribution. A
Participant may withdraw all or any part of the fair market value of his or her
pre-1987 Voluntary Contributions with or without withdrawing the earnings
attributable thereto. Post-1986 Voluntary Contributions may only be withdrawn
along with a portion of the earnings thereon. The amount of the earnings to be
withdrawn is determined by using the formula: DA [1-(V / V+E)], where DA is the
distribution amount, V is the amount of Voluntary Contributions and V+E is the
<PAGE>
amount of Voluntary Contributions plus the earnings attributable thereto. A
Participant withdrawing his or her other contributions prior to attaining age
59-1/2, will be subject to a federal tax penalty to the extent that the
withdrawn amounts are includible in income. Unless the Employer provides
otherwise in the Adoption Agreement, any Participant in a profit-sharing plan
who is 100% fully vested in his or her Employer contributions may withdraw all
or any part of the fair market value of any of such contributions that have been
in the account at least two years, plus the investment earnings thereon, after
attaining 59-1/2 without separation from Service. Such Employer contributions
may not have been used to satisfy the antidiscrimination test of Code Section
401(k). Such distributions shall not be eligible for redeposit to the Fund. A
withdrawal under this paragraph shall not prohibit such Participant from sharing
in any future Employer Contribution he or she would otherwise be eligible to
share in. A request to withdraw amounts pursuant to this paragraph must if
applicable, be consented to by the Participant's Spouse. The consent shall
comply with the requirements of paragraph 6.4 relating to immediate
distributions. Elective Deferrals, Qualified Non-elective Contributions, and
Qualified Matching Contributions, and income allocable to each are not
distributable to a Participant or his or her Beneficiary or Beneficiaries, in
accordance with such Participant's or Beneficiary's or Beneficiaries' election,
earlier than upon separation from Service, death, or Disability. Such amounts
may also be distributed upon:
(a) Termination of the Plan without the establishment of
another Defined Contribution Plan.
(b) The disposition by a corporation to an unrelated
corporation of substantially all of the assets
[within the meaning of 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, but only with respect to Employees who
continue employment with the corporation acquiring
such assets.
(c) The disposition by a corporation to an unrelated
entity of such corporation's interest in a subsidiary
[within the meaning of Code Section 409(d)(3)] if
such corporation continues to maintain this plan, but
only with respect to Employees who continue
employment with such subsidiary.
(d) The attainment of age 59-1/2.
(e) The Hardship of the Participant as described in
paragraph 6.9.
All distributions that may be made pursuant to one or more of the foregoing
distributable events are subject to the Spousal and Participant consent
requirements, if applicable, contained in Code Sections 401(a)(11) and 417.
6.9 Hardship Withdrawal If permitted by the Trustee/Custodian and the Employer
in the Adoption Agreement, a Participant may request a Hardship withdrawal prior
to attaining age 59-1/2. If the Participant has not attained age 59-1/2, the
Participant may be subject to a federal income tax penalty. Such request shall
be in writing to the Employer who shall have sole authority to authorize a
hardship withdrawal, pursuant to the rules below. Hardship withdrawals may
include Elective Deferrals regardless of when contributed and any earnings
<PAGE>
accrued and credited thereon as of the last day of the Plan Year ending before
July 1, 1989 and Employer related contributions, including but not limited to
Employer Matching Contributions, plus the investment earnings thereon to the
extent vested. Qualified Matching Contributions, Qualified Non-Elective
Contributions and Elective Deferrals reclassified as Voluntary Contributions
plus the investment earnings thereon are only available for Hardship withdrawal
prior to age 59-1/2 to the extent that they were credited to the Participant's
Account as of the last day of the Plan Year ending prior to July 1, 1989. The
Plan Administrator may limit withdrawals to Elective Deferrals and the earnings
thereon as stipulated above. Hardship withdrawals are subject to the Spousal
consent requirements contained in Code Sections 401(a)(11) and 417. Only the
following reasons are valid to obtain hardship withdrawal:
(a) medical expenses [within the meaning of Code Section
213(d)], incurred or necessary for the medical care,
of the Participant, his or her Spouse, children and
other dependents,
(b) the purchase (excluding mortgage payments) of the
principal residence for the Participant,
(c) payment of tuition and related educational expenses
for the next twelve (12) months of post-secondary
education for the Participant, his or her Spouse,
children or other dependents, or
(d) the need to prevent eviction of the Employee from or
a foreclosure on the mortgage of, the Employee's
principal residence.
Furthermore, the following conditions must be met in order for a withdrawal to
be authorized:
(e) the Participant has obtained all distributions, other
than hardship distributions, and all nontaxable loans
under all plans maintained by the Employer,
(f) all plans maintained by the Employer provide that the
Employee's Elective Deferrals and Voluntary
Contributions will be suspended for twelve months
after the receipt of the Hardship distribution,
(g) the distribution is not in excess of the amount of
the immediate and heavy financial need [(a) through
(d)] above, and
(h) all plans maintained by the Employer provide that an
Employee may not make Elective Deferrals for the
Employee's taxable year immediately following the
taxable year of the hardship distribution in excess
of the applicable limit under Code Section 402(g) for
such taxable year, less the amount of such Employee's
pre-tax contributions for the taxable year of the
hardship distribution.
If a distribution is made at a time when a Participant has a nonforfeitable
right to less than 100% of the account balance derived from Employer
contributions and the Participant may increase the nonforfeitable percentage in
the account:
<PAGE>
(a) A separate account will be established for the
Participant's interest in the Plan as of the time of
the distribution, and
(b) At any relevant time the Participant's nonforfeitable
portion of the separate account will be equal to an
amount ("X") determined by the formula:
X = P [AB + (R X D)] - (R X D)
For purposes of applying the formula: "P" is the nonforfeitable percentage at
the relevant time, "AB" is the account balance at the relevant time, "D" is the
amount of the distribution and "R" is the ratio of the account balance at the
relevant time to the account balance after distribution.
<PAGE>
ARTICLE VII
DISTRIBUTION REQUIREMENTS
7.1 Joint And Survivor Annuity Requirements All distributions made under the
terms of this Plan must comply with the provisions of Article VIII including, if
applicable, the safe harbor provisions thereunder.
7.2 Minimum Distribution Requirements All distributions required under this
Article shall be determined and made in accordance with the minimum distribution
requirements of Code Section 401(a)(9) and the regulations thereunder, including
the minimum distribution incidental benefit rules found at Regulations Section
1.401(a)(9)-2. The entire interest of a Participant must be distributed or begin
to be distributed no later than the Participant's Required Beginning Date. Life
expectancy and joint and last survivor life expectancy are computed by using the
expected return multiples found in Tables V and VI of Regulations Section
1.72-9.
7.3 Limits On Distribution Periods As of the First Distribution Calendar Year,
distributions if not made in a single-sum, may only be made over one of the
following periods (or a combination thereof):
(a) the life of the Participant,
(b) the life of the Participant and a Designated
Beneficiary,
(c) a period certain not extending beyond the life
expectancy of the participant, or
(d) a period certain not extending beyond the joint and
last survivor expectancy of the Participant and a
designated beneficiary.
7.4 Required Distributions On Or After The Required Beginning Date
(a) If a participant's benefit is to be distributed over
(1) a period not extending beyond the life expectancy
of the Participant or the joint life and last
survivor expectancy of the Participant and the
Participant's Designated Beneficiary or (2) a period
not extending beyond the life expectancy of the
Designated Beneficiary, the amount required to be
distributed for each calendar year, beginning with
distributions for the First Distribution Calendar
Year, must at least equal the quotient obtained by
dividing the Participant's benefit by the Applicable
Life Expectancy.
(b) For calendar years beginning before 1989, if the
Participant's Spouse is not the Designated
Beneficiary, the method of distribution selected must
have assured that at least 50% of the Present Value
of the amount available for distribution was to be
paid within the life expectancy of the Participant.
<PAGE>
(c) For calendar years beginning after 1988, the amount
to be distributed each year, beginning with
distributions for the First Distribution Calendar
Year shall not be less than the quotient obtained by
dividing the Participant's benefit by the lesser of
(1) the Applicable Life Expectancy or (2) if the
Participant's Spouse is not the Designated
Beneficiary, the applicable divisor determined from
the table set forth in Q&A-4 of Regulations Section
1.401(a)(9)-2. Distributions after the death of the
Participant shall be distributed using the Applicable
Life Expectancy as the relevant divisor without
regard to Regulations Section 1.401(a)(9)-2.
(d) The minimum distribution required for the
Participant's First Distribution Calendar Year must
be made on or before the Participant's Required
Beginning Date. The minimum distribution for other
calendar years, including the minimum distribution
for the Distribution Calendar Year in which the
Participant's Required Beginning Date occurs, must be
made on or before December 31 of that Distribution
Calendar Year.
(e) If the Participant's benefit is distributed in the
form of an annuity purchased from an insurance
company, distributions thereunder shall be made in
accordance with the requirements of Code Section
401(a)(9) and the Regulations thereunder.
(f) For purposes of determining the amount of the
required distribution for each Distribution Calendar
Year, the account balance to be used is the account
balance determined as of the last valuation preceding
the Distribution Calendar Year. This balance will be
increased by the amount of any contributions or
forfeitures allocated to the account balance after
the valuation date in such preceding calendar year.
Such balance will also be decreased by distributions
made after the Valuation Date in such preceding
Calendar Year.
(g) For purposes of subparagraph 7.4(f), if any portion
of the minimum distribution for the First
Distribution Calendar Year is made in the second
Distribution Calendar Year on or before the Required
Beginning Date, the amount of the minimum
distribution made in the second Distribution Calendar
Year shall be treated as if it had been made in the
immediately preceding Distribution Calendar Year.
7.5 Required Beginning Date
(a) General Rule. The Required Beginning Date of a
Participant is the first day of April of the calendar
year following the calendar year in which the
Participant attains age 70-1/2.
<PAGE>
(b) Transitional Rules. The Required Beginning Date of a
Participant who attains age 70-1/2 before 1988, shall
be determined in accordance with (1) or (2) below:
(1) Non-5-percent owners. The Required Beginning
Date of a Participant who is not a 5-percent
owner is the first day of April of the
calendar year following the calendar year in
which the later of retirement or attainment
of age 70-1/2 occurs. In the case of a
Participant who is not a 5-percent owner who
attains age 70-1/2 during 1988 and who has
not retired as of January 1, 1989, the
Required Beginning Date is April 1, 1990.
(2) 5-percent owners. The Required Beginning
Date of a Participant who is a 5-percent
owner during any year beginning after 1979,
is the first day of April following the
later of:
(i) the calendar year in which the
Participant attains age 70-1/2, or
(ii) the earlier of the calendar year with
or within which ends the plan year in which
the Participant becomes a 5-percent owner,
or the calendar year in which the
Participant retires.
(c) A Participant is treated as a 5-percent owner for
purposes of this Paragraph if such Participant is a
5-percent owner as defined in Code Section 416(i)
(determined in accordance with Code Section 416 but
without regard to whether the Plan is Top-Heavy) at
any time during the Plan Year ending with or within
the calendar year in which such Owner attains age
66-1/2 or any subsequent Plan Year.
(d) Once distributions have begun to a 5-percent owner
under this paragraph, they must continue to be
distributed, even if the Participant ceases to be a
5-percent owner in a subsequent year.
7.6 Transitional Rule
(a) Notwithstanding the other requirements of this
Article and subject to the requirements of Article
VIII, Joint and Survivor Annuity Requirements,
distribution on behalf of any Employee, including a
5-percent owner, may be made in accordance with all
of the following requirements (regardless of when
such distribution commences):
(1) The distribution by the Trust is one which
would not have disqualified such Trust under
Code Section 401(a)(9) as in effect prior to
amendment by the Deficit Reduction Act of
1984.
<PAGE>
(2) The distribution is in accordance with a
method of distribution designated by the
Employee whose interest in the Trust is
being distributed or, if the Employee is
deceased, by a beneficiary of such Employee.
(3) Such designation was in writing, was signed
by the Employee or the beneficiary, and was
made before 1984.
(4) The Employee had accrued a benefit under the
Plan as of December 31, 1983.
(5) The method of distribution designated by the
Employee or the beneficiary specifies the
time at which distribution will commence,
the period over which distributions will be
made, and in the case of any distribution
upon the Employee's death, the beneficiaries
of the Employee listed in order of priority.
(b) A distribution upon death will not be covered by this
transitional rule unless the information in the
designation contains the required information
described above with respect to the distributions to
be made upon the death of the Employee.
(c) For any distribution which commences before 1984, but
continues after 1983, the Employee or the
beneficiary, to whom such distribution is being made,
will be presumed to have designated the method of
distribution under which the distribution is being
made if the method of distribution was specified in
writing and the distribution satisfies the
requirements in subparagraphs (a)(1) and (5) above.
(d) If a designation is revoked, any subsequent
distribution must satisfy the requirements of Code
Section 401(a)(9) and the regulations thereunder. If
a designation is revoked subsequent to the date
distributions are required to begin, the Trust must
distribute by the end of the calendar year following
the calendar year in which the revocation occurs the
total amount not yet distributed which would have
been required to have been distributed to satisfy
Code Section 401(a)(9) and the regulations
thereunder, but for the section 242(b)(2) election of
the Tax Equity and Fiscal Responsibility Act of 1982.
For calendar years beginning after 1988, such
distributions must meet the minimum distribution
incidental benefit requirements in section
1.401(a)(9)-2 of the Income Tax Regulations. Any
changes in the designation will be considered to be a
revocation of the designation. However, the mere
substitution or addition of another beneficiary (one
not named in the designation) under the designation
will not be considered to be a revocation of the
designation, so long as such substitution or addition
<PAGE>
does not alter the period over which distributions
are to be made under the designation, directly or
indirectly (for example, by altering the relevant
measuring life). In the case in which an amount is
transferred or rolled over from one plan to another
plan, the rules in Q&A J-2 and Q&A J-3 of the
regulations shall apply.
7.7 Designation Of Beneficiary For Death Benefit Each Participant shall file a
written designation of beneficiary with the Employer upon qualifying for
participation in this Plan. Such designation shall remain in force until revoked
by the Participant by filing a new beneficiary form with the Employer. The
Participant may elect to have a portion of his or her account balance invested
in an insurance contract. If an insurance contract is purchased under the Plan,
the Trustee must be named as Beneficiary under the terms of the contract.
However, the Participant shall designate a Beneficiary to receive the proceeds
of the contract after settlement is received by the Trustee. Under a
profit-sharing plan satisfying the requirements of paragraph 8.7, the Designated
Beneficiary shall be the Participant's Surviving Spouse, if any, unless such
Spouse properly consents otherwise.
7.8 Nonexistence Of Beneficiary Any portion of the amount payable hereunder
which is not disposed of because of the Participant's or former Participant's
failure to designate a beneficiary, or because all of the Designated
Beneficiaries predeceased the Participant, shall be paid to his or her Spouse.
If the Participant had no Spouse at the time of death, payment shall be made to
the personal representative of his or her estate in a lump sum.
7.9 Distribution Beginning Before Death If the Participant dies after
distribution of his or her interest has begun, the remaining portion of such
interest will continue to be distributed at least as rapidly as under the method
of distribution being used prior to the Participant's death.
7.10 Distribution Beginning After Death If the Participant dies before
distribution of his or her interest begins, distribution of the Participant's
entire interest shall be completed by December 31 of the calendar year
containing the fifth anniversary of the Participant's death except to the extent
that an election is made to receive distributions in accordance with (a) or (b)
below:
(a) If any portion of the Participant's interest is
payable to a Designated Beneficiary, distributions
may be made over the life or over a period certain
not greater than the life expectancy of the
Designated Beneficiary commencing on or before
December 31 of the calendar year immediately
following the calendar year in which the Participant
died;
(b) If the Designated Beneficiary is the Participant's
surviving Spouse, the date distributions are required
to begin in accordance with (a) above shall not be
earlier than the later of (1) December 31 of the
calendar year immediately following the calendar year
in which the participant died or (2) December 31 of
the calendar year in which the Participant would have
attained age 70-1/2.
<PAGE>
If the Participant has not made an election pursuant to this paragraph 7.10 by
the time of his or her death, the Participant's Designated Beneficiary must
elect the method of distribution no later than the earlier of (1) December 31 of
the calendar year in which distributions would be required to begin under this
section, or (2) December 31 of the calendar year which contains the fifth
anniversary of the date of death of the participant. If the Participant has no
Designated Beneficiary, or if the Designated Beneficiary does not elect a method
of distribution, then distribution of the Participant's entire interest must be
completed by December 31 of the calendar year containing the fifth anniversary
of the Participant's death.
For purposes of this paragraph if the Surviving Spouse dies after the
Participant, but before payments to such Spouse begin, the provisions of this
paragraph with the exception of paragraph (b) therein, shall be applied as if
the Surviving Spouse were the Participant. For the purposes of this paragraph
and paragraph 7.9, distribution of a Participant's interest is considered to
begin on the Participant's Required Beginning Date (or, if the preceding
sentence is applicable, the date distribution is required to begin to the
Surviving Spouse). If distribution in the form of an annuity described in
paragraph 7.4(e) irrevocably commences to the Participant before the Required
Beginning Date, the date distribution is considered to begin is the date
distribution actually commences.
For purposes of paragraph 7.9 and this paragraph, if an amount is payable to
either a minor or an individual who has been declared incompetent, the benefits
shall be paid to the legally appointed guardian for the benefit of said minor or
incompetent individual, unless the court which appointed the guardian has
ordered otherwise.
7.11 Distribution Of Excess Elective Deferrals
(a) Notwithstanding any other provision of the Plan,
Excess Elective Deferrals plus any income and minus
any loss allocable thereto, shall be distributed no
later than April 15, 1988, and each April 15
thereafter, to Participants to whose accounts Excess
Elective Deferrals were allocated for the preceding
taxable year, and who claim Excess Elective Deferrals
for such taxable year. Excess Elective Deferrals
shall be treated as Annual Additions under the Plan,
unless such amounts are distributed no later than the
first April 15th following the close of the
Participant's taxable year. A Participant is deemed
to notify the Plan Administrator of any Excess
Elective Deferrals that arise by taking into account
only those Elective Deferrals made to this Plan and
any other plans of this Employer.
(b) Furthermore, a Participant who participates in
another plan allowing Elective Deferrals may assign
to this Plan any Excess Elective Deferrals made
during a taxable year of the Participant, by
notifying the Plan Administrator of the amount of the
Excess Elective Deferrals to be assigned. The
Participant's claim shall be in writing; shall be
submitted to the Plan Administrator not later than
March 1 of each year; shall specify the amount of the
Participant's Excess Elective Deferrals for the
preceding taxable year; and shall be accompanied by
<PAGE>
the Participant's written statement that if such
amounts are not distributed, such Excess Elective
Deferrals, when added to amounts deferred under other
plans or arrangements described in Code Sections
401(k), 408(k) [Simplified Employee Pensions], or
403(b) [annuity programs for public schools and
charitable organizations] will exceed the $7,000
limit as adjusted under Code Section 415(d) imposed
on the Participant by Code Section 402(g) for the
year in which the deferral occurred.
(c) Excess Elective Deferrals shall be adjusted for any
income or loss up to the end of the taxable year,
during which such excess was deferred. Income or loss
will be calculated under the method used to calculate
investment earnings and losses elsewhere in the Plan.
(d) If the Participant receives a return of his or her
Elective Deferrals, the amount of such contributions
which are returned must be brought into the
Employee's taxable income.
7.12 Distributions of Excess Contributions
(a) Notwithstanding any other provision of this Plan,
Excess Contributions, plus any income and minus any
loss allocable thereto, shall be distributed no later
than the last day of each Plan Year to Participants
to whose accounts such Excess Contributions were
allocated for the preceding Plan Year. If such excess
amounts are distributed more than 2-1/2 months after
the last day of the Plan Year in which such excess
amounts arose, a ten (10) percent excise tax will be
imposed on the Employer maintaining the Plan with
respect to such amounts. Such distributions shall be
made to Highly Compensated Employees on the basis of
the respective portions of the Excess Contributions
attributable to each of such Employees. Excess
Contributions shall be allocated to Participants who
are subject to the Family Member aggregation rules of
Code Section 414(q)(6) in the manner prescribed by
the regulations.
(b) Excess Contributions (including the amounts
recharacterized) shall be treated as Annual Additions
under the Plan.
(c) Excess Contributions shall be adjusted for any income
or loss up to the end of the Plan Year. Income or
loss will be calculated under the method used to
calculate investment earnings and losses elsewhere in
the Plan.
(d) Excess Contributions shall be distributed from the
Participant's Elective Deferral account and Qualified
Matching Contribution account (if applicable) in
proportion to the Participant's Elective Deferrals
and Qualified Matching Contributions (to the extent
<PAGE>
used in the ADP test) for the Plan Year. Excess
Contributions shall be distributed from the
Participant's Qualified Non-Elective Contribution
account only to the extent that such Excess
Contributions exceed the balance in the Participant's
Elective Deferral account and Qualified Matching
Contribution account.
7.13 Distribution Of Excess Aggregate Contributions ons
(a) Notwithstanding any other provision of this Plan,
Excess Aggregate Contributions, plus any income and
minus any loss allocable thereto, shall be forfeited,
if forfeitable, or if not forfeitable, distributed no
later than the last day of each Plan Year to
Participants to whose accounts such Excess Aggregate
Contributions were allocated for the preceding Plan
Year. Excess Aggregate Contributions shall be
allocated to Participants who are subject to the
Family Member aggregation rules of Code Section
414(q)(6) in the manner prescribed by the
regulations. If such Excess Aggregate Contributions
are distributed more than 2-1/2 months after the last
day of the Plan Year in which such excess amounts
arose, a ten (10) percent excise tax will be imposed
on the Employer maintaining the Plan with respect to
those amounts. Excess Aggregate Contributions shall
be treated as Annual Additions under the plan.
(b) Excess Aggregate Contributions shall be adjusted for
any income or loss up to the end of the Plan Year.
The income or loss allocable to Excess Aggregate
Contributions is the sum of income or loss for the
Plan Year allocable to the Participant's Voluntary
Contribution account, Matching Contribution account
(if any, and if all amounts therein are not used in
the ADP test) and, if applicable, Qualified
Non-Elective Contribution account and Elective
Deferral account. Income or loss will be calculated
under the method used to calculate investment
earnings and losses elsewhere in the Plan.
(c) Forfeitures of Excess Aggregate Contributions may
either be reallocated to the accounts of non-Highly
Compensated Employees or applied to reduce Employer
contributions, as elected by the employer in the
Adoption Agreement.
(d) Excess Aggregate Contributions shall be forfeited if
such amount is not vested. If vested, such excess
shall be distributed on a pro-rata basis from the
Participant's Voluntary Contribution account (and, if
applicable, the Participant's Qualified Non-Elective
Contribution account, Matching Contribution account,
Qualified Matching Contribution account, or Elective
Deferral account, or both).
<PAGE>
ARTICLE VIII
JOINT AND SURVIVOR ANNUITY REQUIREMENTS
8.1 Applicability Of Provisions The provisions of this Article shall apply to
any Participant who is credited with at least one Hour of Service with the
Employer on or after August 23, 1984 and such other Participants as provided in
paragraph 8.8.
8.2 Payment Of Qualified Joint And Survivor Annuity Unless an optional form of
benefit is selected pursuant to a Qualified Election within the 90-day period
ending on the Annuity Starting Date, a married Participant's Vested Account
Balance will be paid in the form of a Qualified Joint and Survivor Annuity and
an unmarried Participant's Vested Account Balance will be paid in the form of a
life annuity. The Participant may elect to have such annuity distributed upon
attainment of the Early Retirement Age under the Plan.
8.3 Payment Of Qualified Pre-Retirement Survivor Annuity Unless an optional form
of benefit has been selected within the Election Period pursuant to a Qualified
Election, if a Participant dies before benefits have commenced then the
Participant's Vested Account Balance shall be paid in the form of an annuity for
the life of the Surviving Spouse. The Surviving Spouse may elect to have such
annuity distributed within a reasonable period after the Participant's death.
A Participant who does not meet the age 35 requirement set forth in the Election
Period as of the end of any current Plan Year may make a special qualified
election to waive the qualified Pre-retirement Survivor Annuity for the period
beginning on the date of such election and ending on the first day of the Plan
Year in which the Participant will attain age 35. Such election shall not be
valid unless the Participant receives a written explanation of the Qualified
Pre-retirement Survivor Annuity in such terms as are comparable to the
explanation required under paragraph 8.5. Qualified Pre-retirement Survivor
Annuity coverage will be automatically reinstated as of the first day of the
Plan Year in which the Participant attains age 35. Any new waiver on or after
such date shall be subject to the full requirements of this Article.
8.4 Qualified Election A Qualified Election is an election to either waive a
Qualified Joint and Survivor Annuity or a qualified pre-retirement survivor
annuity. Any such election shall not be effective unless:
(a) the Participant's Spouse consents in writing to the
election;
(b) the election designates a specific beneficiary,
including any class of beneficiaries or any
contingent beneficiaries, which may not be changed
without spousal consent (or the Spouse expressly
permits designations by the Participant without any
further spousal consent);
(c) the Spouse's consent acknowledges the effect of the
election; and
(d) the Spouse's consent is witnessed by a Plan
representative or notary public.
<PAGE>
Additionally, a Participant's waiver of the Qualified Joint and Survivor Annuity
shall not be effective unless the election designates a form of benefit payment
which may not be changed without spousal consent (or the Spouse expressly
permits designations by the Participant without any further spousal consent). If
it is established to the satisfaction of the Plan Administrator that there is no
Spouse or that the Spouse cannot be located, a waiver will be deemed a Qualified
Election. Any consent by a Spouse obtained under this provision (or
establishment that the consent of a Spouse may not be obtained) shall be
effective only with respect to such Spouse. A consent that permits designations
by the Participant without any requirement of further consent by such Spouse
must acknowledge that the Spouse has the right to limit consent to a specific
beneficiary, and a specific form of benefit where applicable, and that the
Spouse voluntarily elects to relinquish either or both of such rights. A
revocation of a prior waiver may be made by a Participant without the consent of
the Spouse at any time before the commencement of benefits. The number of
revocations shall not be limited. No consent obtained under this provision shall
be valid unless the Participant has received notice as provided in paragraphs
8.5 and 8.6 below.
8.5 Notice Requirements For Qualified Joint And Survivor Annuity In the case of
a Qualified Joint and Survivor Annuity, the Plan Administrator shall, no less
than 30 days and no more than 90 days prior to the Annuity Starting date,
provide each Participant a written explanation of:
(a) the terms and conditions of a Qualified Joint and
Survivor Annuity;
(b) the Participant's right to make and the effect of an
election to waive the Qualified Joint and Survivor
Annuity form of benefit;
(c) the rights of a Participant's Spouse; and
(d) the right to make, and the effect of, a revocation of
a previous election to waive the Qualified Joint and
Survivor Annuity.
8.6 Notice Requirements For Qualified Pre-Retirement Survivor Annuity In the
case of a qualified pre-retirement survivor annuity as described in paragraph
8.3, the Plan Administrator shall provide each Participant within the applicable
period for such Participant a written explanation of the qualified
pre-retirement survivor annuity in such terms and in such manner as would be
comparable to the explanation provided for meeting the requirements of paragraph
8.5 applicable to a Qualified Joint and Survivor Annuity. The applicable period
for a Participant is whichever of the following periods ends last:
(a) the period beginning with the first day of the Plan
Year in which the Participant attains age 32 and
ending with the close of the Plan Year preceding the
Plan Year in which the Participant attains age 35;
(b) a reasonable period ending after the individual
becomes a Participant;
<PAGE>
(c) a reasonable period ending after this Article first
applies to the Participant. Notwithstanding the
foregoing, notice must be provided within a
reasonable period ending after separation from
Service in the case of a Participant who separates
from Service before attaining age 35.
For purposes of applying the preceding paragraph, a reasonable period ending
after the events described in (b) and (c) is the end of the two-year period
beginning one-year prior to the date the applicable event occurs, and ending
one-year after that date. In the case of a Participant who separates from
Service before the Plan Year in which age 35 is attained, notice shall be
provided within the two-year period beginning one year prior to separation and
ending one year after separation. If such a Participant subsequently returns to
employment with the Employer, the applicable period for such Participant shall
be re-determined.
8.7 Special Safe-Harbor Exception For Certain Profit-Sharing Plans
(a) This paragraph shall apply to a Participant in a
profit-sharing plan, and to any distribution, made on
or after the first day of the first plan year
beginning after 1988, from or under a separate
account attributable solely to Qualified Voluntary
contributions, as maintained on behalf of a
Participant in a money purchase pension plan,
(including a target benefit plan) if the following
conditions are satisfied:
(1) the Participant does not or cannot elect
payments in the form of a life annuity; and
(2) on the death of a Participant, the
Participant's Vested Account Balance will be
paid to the Participant's Surviving Spouse,
but if there is no Surviving Spouse, or if
the Surviving Spouse has consented in a
manner conforming to a Qualified Election,
then to the Participant's Designated
Beneficiary.
The Surviving Spouse may elect to have distribution of the
Vested Account Balance commence within the 90-day period
following the date of the Participant's death. The account
balance shall be adjusted for gains or losses occurring after
the Participant's death in accordance with the provisions of
the Plan governing the adjustment of account balances for
other types of distributions. These safe-harbor rules shall
not be operative with respect to a Participant in a
profit-sharing plan if that plan is a direct or indirect
transferee of a Defined Benefit Plan, money purchase plan, a
target benefit plan, stock bonus plan, or profit-sharing plan
which is subject to the survivor annuity requirements of Code
Section 401(a)(11) and Code Section 417, and would therefore
have a Qualified Joint and Survivor Annuity as its normal form
of benefit.
<PAGE>
(b) The Participant may waive the spousal death benefit
described in this paragraph at any time provided that
no such waiver shall be effective unless it satisfies
the conditions (described in paragraph 8.4) that
would apply to the Participant's waiver of the
Qualified Pre-Retirement Survivor Annuity.
(c) If this paragraph 8.7 is operative, then all other
provisions of this Article other than paragraph 8.8
are inoperative.
8.8 Transitional Joint And Survivor Annuity Rules Special transition rules apply
to Participants who were not receiving benefits on August 23, 1984.
(a) Any living Participant not receiving benefits on
August 23, 1984, who would otherwise not receive the
benefits prescribed by the previous paragraphs of
this Article, must be given the opportunity to elect
to have the prior paragraphs of this Article apply if
such Participant is credited with at least one Hour
of Service under this Plan or a predecessor Plan in a
Plan Year beginning on or after January 1, 1976 and
such Participant had at least 10 Years of Service for
vesting purposes when he or she separated from
Service.
(b) Any living Participant not receiving benefits on
August 23, 1984, who was credited with at least one
Hour of Service under this Plan or a predecessor Plan
on or after September 2, 1974, and who is not
otherwise credited with any Service in a Plan Year
beginning on or after January 1, 1976, must be given
the opportunity to have his or her benefits paid in
accordance with paragraph 8.9.
(c) The respective opportunities to elect [as described
in (a) and (b) above] must be afforded to the
appropriate Participants during the period commencing
on August 23, 1984 and ending on the date benefits
would otherwise commence to said Participants.
8.9 Automatic Joint And Survivor Annuity And Early Survivor Annuity Any
Participant who has elected pursuant to paragraph 8.8(b) and any Participant who
does not elect under paragraph 8.8(a) or who meets the requirements of paragraph
8.8(a), except that such Participant does not have at least 10 years of vesting
Service when he or she separates from Service, shall have his or her benefits
distributed in accordance with all of the following requirements if benefits
would have been payable in the form of a life annuity.
(a) Automatic Joint and Survivor Annuity. If benefits in
the form of a life annuity become payable to a
married Participant who:
(1) begins to receive payments under the Plan on
or after Normal Retirement Age, or
(2) dies on or after Normal Retirement Age while
still working for the Employer, or
<PAGE>
(3) begins to receive payments on or after the
Qualified Early Retirement Age, or
(4) separates from Service on or after attaining
Normal Retirement (or the Qualified Early
Retirement Age) and after satisfying the
eligibility requirements for the payment of
benefits under the Plan and thereafter dies
before beginning to receive such benefits,
then such benefits will be received under this Plan in the
form of a Qualified Joint and Survivor Annuity, unless the
Participant has elected otherwise during the Election Period.
The Election Period must begin at least 6 months before the
Participant attains Qualified Early Retirement Age and end not
more than 90 days before the commencement of benefits. Any
election will be in writing and may be changed by the
Participant at any time.
(b) Election of Early Survivor Annuity. A Participant who
is employed after attaining the Qualified Early
Retirement Age will be given the opportunity to
elect, during the Election Period, to have a survivor
annuity payable on death. If the Participant elects
the survivor annuity, payments under such annuity
must not be less than the payments which would have
been made to the Spouse under the Qualified Joint and
Survivor Annuity if the Participant had retired on
the day before his or her death. Any election under
this provision will be in writing and may be changed
by the Participant at any time. The Election Period
begins on the later of:
(1) the 90th day before the Participant attains
the Qualified Early Retirement Age, or
(2) the date on which participation begins, and
ends on the date the Participant terminates
employment.
8.10 Annuity Contracts Any annuity contract distributed under this Plan must be
nontransferable. The terms of any annuity contract purchased and distributed by
the Plan to a Participant or Spouse shall comply with the requirements of this
Plan.
<PAGE>
ARTICLE IX
VESTING
9.1 Employee Contributions A Participant shall always have a 100% vested and
nonforfeitable interest in his or her Elective Deferrals, Voluntary
Contributions, Qualified Voluntary Contributions, Rollover Contributions, and
Transfer Contributions plus the earnings thereon. No forfeiture of Employer
related contributions (including any minimum contributions made under paragraph
14.2) will occur solely as a result of an Employee's withdrawal of any Employee
contributions.
9.2 Employer Contributions A Participant shall acquire a vested and
nonforfeitable interest in his or her account attributable to Employer
contributions in accordance with the table selected in the Adoption Agreement,
provided that if a Participant is not already fully vested, he or she shall
become so upon attaining Normal Retirement Age, Early Retirement Age, on death
prior to normal retirement, on retirement due to Disability, or on termination
of the Plan.
9.3 Computation Period The computation period for purposes of determining Years
of Service and Breaks in Service for purposes of computing a Participant's
nonforfeitable right to his or her account balance derived from Employer
contributions shall be determined by the Employer in the Adoption Agreement. In
the event a former Participant with no vested interest in his or her Employer
contribution account requalifies for participation in the Plan after incurring a
Break in Service, such Participant shall be credited for vesting with all
pre-break and post-break Service.
9.4 Requalification Prior To Five Consecutive One-Year Breaks In Service The
account balance of such Participant shall consist of any undistributed amount in
his or her account as of the date of re-employment plus any future contributions
added to such account plus the investment earnings on the account. The Vested
Account Balance of such Participant shall be determined by multiplying the
Participant's account balance (adjusted to include any distribution or redeposit
made under paragraph 6.3) by such Participant's vested percentage. All Service
of the Participant, both prior to and following the break, shall be counted when
computing the Participant's vested percentage.
9.5 Requalification After Five Consecutive One-Year Breaks In Service If such
Participant is not fully vested upon re-employment, a new account shall be
established for such Participant to separate his or her deferred vested and
nonforfeitable account, if any, from the account to which new allocations will
be made. The Participant's deferred account to the extent remaining shall be
fully vested and shall continue to share in earnings and losses of the Fund.
When computing the Participant's vested portion of the new account, all
pre-break and post-break Service shall be counted. However, notwithstanding this
provision, no such former Participant who has had five consecutive one-year
Breaks in Service shall acquire a larger vested and nonforfeitable interest in
his or her prior account balance as a result of requalification hereunder.
9.6 Calculating Vested Interest A Participant's vested and nonforfeitable
interest shall be calculated by multiplying the fair market value of his or her
account attributable to Employer contributions on the Valuation Date preceding
distribution by the decimal equivalent of the vested percentage as of his or her
<PAGE>
termination date. The amount attributable to Employer contributions for purposes
of the calculation includes amounts previously paid out pursuant to paragraph
6.3 and not repaid. The Participant's vested and nonforfeitable interest, once
calculated above, shall be reduced to reflect those amounts previously paid out
to the Participant and not repaid by the Participant. The Participant's vested
and nonforfeitable interest so determined shall continue to share in the
investment earnings and any increase or decrease in the fair market value of the
Fund up to the Valuation Date preceding or coinciding with payment.
9.7 Forfeitures Any balance in the account of a Participant who has separated
from Service to which he or she is not entitled under the foregoing provisions,
shall be forfeited and applied as provided in the Adoption Agreement. A
forfeiture may only occur if the Participant has received a distribution from
the Plan or if the Participant has incurred five consecutive 1-year Breaks in
Service. Furthermore, a Highly Compensated Employee's Matching Contributions may
be forfeited, even if vested, if the contributions to which they relate are
Excess Deferrals, Excess Contributions or Excess Aggregate Contributions.
9.8 Amendment Of Vesting Schedule No amendment to the Plan shall have the effect
of decreasing a Participant's vested interest determined without regard to such
amendment as of the later of the date such amendment is adopted or the date it
becomes effective. Further, if the vesting schedule of the Plan is amended, or
the Plan is amended in any way that directly or indirectly affects the
computation of any Participant's nonforfeitable percentage or if the Plan is
deemed amended by an automatic change to or from a Top-Heavy vesting schedule,
each Participant with at least three Years of Service with the Employer may
elect, within a reasonable period after the adoption of the amendment, to have
his or her nonforfeitable percentage computed under the Plan without regard to
such amendment. For Participants who do not have at least one Hour of Service in
any Plan Year beginning after 1988, the preceding sentence shall be applied by
substituting "Five Years of Service" for "Three Years of Service" where such
language appears. The period during which the election may be made shall
commence with the date the amendment is adopted and shall end on the later of:
(a) 60 days after the amendment is adopted;
(b) 60 days after the amendment becomes effective; or
(c) 60 days after the Participant is issued written
notice of the amendment by the Employer or the
Trustee/Custodian. If the Trustee/Custodian is asked
to so notify, the Fund will be charged for the costs
thereof.
No amendment to the Plan shall be effective to the extent that it has the effect
of decreasing a Participant's accrued benefit. Notwithstanding the preceding
sentence, a Participant's account balance may be reduced to the extent permitted
under section 412(c)(8) of the Code (relating to financial hardships). For
purposes of this paragraph, a Plan amendment which has the effect of decreasing
a Participant's account balance or eliminating an optional form of benefit, with
respect to benefits attributable to service before the amendment, shall be
treated as reducing an accrued benefit.
9.9 Service With Controlled Groups All Years of Service with other members of a
controlled group of corporations [as defined in Code Section 414(b)], trades or
businesses under common control [as defined in Code Section 414(c)], or members
of an affiliated service group [as defined in Code Section 414(m)] shall be
considered for purposes of determining a Participant's nonforfeitable
percentage.
<PAGE>
ARTICLE X
LIMITATIONS ON ALLOCATIONS
AND ANTIDISCRIMINATION TESTING
10.1 Participation In This Plan Only If the Participant does not participate in
and has never participated in another qualified plan, a Welfare Benefit Fund (as
defined in paragraph 1.89) or an individual medical account, as defined in Code
Section 415(l)(2), maintained by the adopting Employer, which provides an Annual
Addition as defined in paragraph 1.4, the amount of Annual Additions which may
be credited to the Participant's account for any Limitation Year will not exceed
the lesser of the Maximum Permissible Amount or any other limitation contained
in this Plan. If the Employer contribution that would otherwise be contributed
or allocated to the Participant's account would cause the Annual Additions for
the Limitation Year to exceed the Maximum Permissible Amount, the amount
contributed or allocated will be reduced so that the Annual Additions for the
Limitation Year will equal the Maximum Permissible Amount. Prior to determining
the Participant's actual Compensation for the Limitation Year, the Employer may
determine the Maximum Permissible Amount for a Participant on the basis of a
reasonable estimate of the Participant's Compensation for the Limitation Year,
uniformly determined for all Participants similarly situated. As soon as is
administratively feasible after the end of the Limitation Year, the Maximum
Permissible Amount for the Limitation Year will be determined on the basis of
the Participant's actual Compensation for the Limitation Year.
10.2 Disposition Of Excess Annual Additions If, pursuant to paragraph 10.1 or as
a result of the allocation of forfeitures, there is an Excess Amount, the excess
will be disposed of under one of the following methods as determined in the
Adoption Agreement. If no election is made in the Adoption Agreement then method
"(a)" below shall apply.
(a) Suspense Account Method
(1) Any nondeductible Employee Voluntary,
Required Voluntary Contributions and
unmatched Elective Deferrals to the extent
they would reduce the Excess Amount will be
returned to the Participant. To the extent
necessary to reduce the Excess Amount,
non-Highly Compensated Employees will have
all Elective Deferrals returned whether or
not there was a corresponding match.
(2) If after the application of paragraph (1) an
Excess Amount still exists, and the
Participant is covered by the Plan at the
end of the Limitation Year, the Excess
Amount in the Participant's account will be
used to reduce Employer contributions
(including any allocation of forfeitures)
for such Participant in the next Limitation
Year, and each succeeding Limitation Year if
necessary;
(3) If after the application of paragraph (1) an
Excess Amount still exists, and the
Participant is not covered by the Plan at
the end of the Limitation Year, the Excess
Amount will be held unallocated in a
<PAGE>
suspense account. The suspense account will
be applied to reduce future Employer
contributions (including allocation of any
forfeitures) for all remaining Participants
in the next Limitation Year, and each
succeeding Limitation Year if necessary;
(4) If a suspense account is in existence at any
time during the Limitation Year pursuant to
this paragraph, it will not participate in
the allocation of investment gains and
losses. If a suspense account is in
existence at any time during a particular
Limitation Year, all amounts in the suspense
account must be allocated and reallocated to
Participants' accounts before any Employer
contributions or any Employee Contributions
may be made to the Plan for that Limitation
Year. Excess amounts may not be distributed
to Participants or former Participants.
(b) Spillover Method
(1) Any nondeductible Employee Voluntary,
Required Voluntary Contributions and
unmatched Elective Deferrals to the extent
they would reduce the Excess Amount will be
returned to the Participant. To the extent
necessary to reduce the Excess Amount,
non-Highly Compensated Employees will have
all Elective Deferrals returned whether or
not there was a corresponding match.
(2) Any Excess Amount which would be allocated
to the account of an individual Participant
under the Plan's allocation formula will be
reallocated to other Participants in the
same manner as other Employer contributions.
No such reallocation shall be made to the
extent that it will result in an Excess
Amount being created in such Participant's
own account.
(3) To the extent that amounts cannot be
reallocated under (1) above, the suspense
account provisions of (a) above will apply.
10.3 Participation In This Plan And Another Master and Prototype Defined
Contribution Plan, Welfare Benefit 10.3 Or IParticipation In This Plan And
Another Master and Prototype Defined Contribution Plan, Welfare Benefit Fund Or
Individual Medical Account Maintained By The Employer The Annual Additions which
may be credited to a Participant's account under this Plan for any Limitation
Year will not exceed the Maximum Permissible Amount reduced by the Annual
Additions credited to a Participant's account under the other Master or
Prototype Defined Contribution Plans, Welfare Benefit Funds, and individual
medical accounts as defined in Code Section 415(l)(2), maintained by the
Employer, which provide an Annual Addition as defined in paragraph 1.4 for the
<PAGE>
same Limitation Year. If the Annual Additions, with respect to the Participant
under other Defined Contribution Plans and Welfare Benefit Funds maintained by
the Employer, are less than the Maximum Permissible Amount and the Employer
contribution that would otherwise be contributed or allocated to the
Participant's account under this Plan would cause the Annual Additions for the
Limitation Year to exceed this limitation, the amount contributed or allocated
will be reduced so that the Annual Additions under all such plans and funds for
the Limitation Year will equal the Maximum Permissible Amount. If the Annual
Additions with respect to the Participant under such other Defined Contribution
Plans and Welfare Benefit Funds in the aggregate are equal to or greater than
the Maximum Permissible Amount, no amount will be contributed or allocated to
the Participant's account under this Plan for the Limitation Year. Prior to
determining the Participant's actual Compensation for the Limitation Year, the
Employer may determine the Maximum Permissible Amount for a Participant in the
manner described in paragraph 10.1. As soon as administratively feasible after
the end of the Limitation Year, the Maximum Permissible Amount for the
Limitation Year will be determined on the basis of the Participant's actual
Compensation for the Limitation Year.
10.4 Disposition Of Excess Annual Additions Under Two Plans If, pursuant to
paragraph 10.3 or as a result of forfeitures, a Participant's Annual Additions
under this Plan and such other plans would result in an Excess Amount for a
Limitation Year, the Excess Amount will be deemed to consist of the Annual
Additions last allocated except that Annual Additions attributable to a Welfare
Benefit Fund or Individual Medical Account as defined in Code Section 415(l)(2)
will be deemed to have been allocated first regardless of the actual allocation
date. If an Excess Amount was allocated to a Participant on an allocation date
of this Plan which coincides with an allocation date of another plan, the Excess
Amount attributed to this Plan will be the product of:
(a) the total Excess Amount allocated as of such date,
times
(b) the ratio of:
(1) the Annual Additions allocated to the
Participant for the Limitation Year as of
such date under the Plan, to
(2) the total Annual Additions allocated to the
Participant for the Limitation Year as of
such date under this and all the other
qualified Master or Prototype Defined
Contribution Plans.
Any Excess Amount attributed to this Plan will be disposed of in the manner
described in paragraph 10.2.
10.5 Participation In This Plan And Another Defined Contribution Plan Which Is
Not A Master Or Prototype Plan If the Participant is covered under another
qualified Defined Contribution Plan maintained by the Employer which is not a
Master or Prototype Plan, Annual Additions which may be credited to the
Participant's account under this Plan for any Limitation Year will be limited in
accordance with paragraphs 10.3 and 10.4 as though the other plan were a Master
or Prototype Plan, unless the Employer provides other limitations in the
Adoption Agreement.
<PAGE>
10.6 Participation In This Plan And A Defined Benefit Plan If the Employer
maintains, or at any time maintained, a qualified Defined Benefit Plan covering
any Participant in this Plan, the sum of the Participant's Defined Benefit Plan
Fraction and Defined Contribution Plan Fraction will not exceed 1.0 in any
Limitation Year. For any Plan Year during which the Plan is Top-Heavy, the
Defined Benefit and Defined Contribution Plan Fractions shall be calculated in
accordance with Code Section 416(h). The Annual Additions which may be credited
to the Participant's account under this Plan for any Limitation Year will be
limited in accordance with the provisions set forth in the Adoption Agreement.
10.7 Average Deferral Percentage (ADP) Test With respect to any Plan Year, the
Average Deferral Percentage for Participants who are Highly Compensated
Employees and the Average Deferral Percentage for Participants who are
non-Highly Compensated Employees must satisfy one of the following tests:
(a) Basic Test - The Average Deferral Percentage for
Participants who are Highly Compensated Employees for
the Plan Year is not more than 1.25 times the Average
Deferral Percentage for Participants who are
non-Highly Compensated Employees for the same Plan
Year, or
(b) Alternative Test - The Average Deferral Percentage
for Participants who are Highly Compensated Employees
for the Plan Year does not exceed the Average
Deferral Percentage for Participants who are
non-Highly Compensated Employees for the same Plan
Year by more than 2 percentage points provided that
the Average Deferral Percentage for Participants who
are Highly Compensated Employees is not more than 2.0
times the Average Deferral Percentage for
Participants who are non-Highly Compensated
Employees.
10.8 Special Rules Relating To Application Of ADP Test
(a) The Actual Deferral Percentage for any Participant
who is a Highly Compensated Employee for the Plan
Year and who is eligible to have Elective Deferrals
(and Qualified Non-Elective Contributions or
Qualified Matching Contributions, or both, if treated
as Elective Deferrals for purposes of the ADP test)
allocated to his or her accounts under two or more
arrangements described in Code Section 401(k), that
are maintained by the Employer, shall be determined
as if such Elective Deferrals (and, if applicable,
such Qualified Non-Elective Contributions or
Qualified Matching Contributions, or both) were made
under a single arrangement. If a Highly Compensated
Employee participates in two or more cash or deferred
arrangements that have different Plan Years, all cash
or deferred arrangements ending with or within the
same calendar year shall be treated as a single
arrangement.
<PAGE>
(b) In the event that this Plan satisfies the
requirements of Code Sections 401(k), 401(a)(4), or
410(b), only if aggregated with one or more other
plans, or if one or more other plans satisfy the
requirements of such Code Sections only if aggregated
with this Plan, then this Section shall be applied by
determining the Actual Deferral Percentage of
Employees as if all such plans were a single plan.
For Plan Years beginning after 1989, plans may be
aggregated in order to satisfy Code Section 401(k)
only if they have the same Plan Year.
(c) For purposes of determining the Actual Deferral
Percentage of a Participant who is a 5-percent owner
or one of the ten most highly-paid Highly Compensated
Employees, the Elective Deferrals (and Qualified
Non-Elective Contributions or Qualified Matching
Contributions, or both, if treated as Elective
Deferrals for purposes of the ADP test) and
Compensation of such Participant shall include the
Elective Deferrals (and, if applicable, Qualified
Non-Elective Contributions and Qualified Matching
Contributions, or both) for the Plan Year of Family
Members as defined in paragraph 1.36 of this Plan.
Family Members, with respect to such Highly
Compensated Employees, shall be disregarded as
separate Employees in determining the ADP both for
Participants who are non-Highly Compensated Employees
and for Participants who are Highly Compensated
Employees. In the event of repeal of the family
aggregation rules under Code Section 414(q)(6), all
applications of such rules under this Plan will cease
as of the effective date of such repeal.
(d) For purposes of determining the ADP test, Elective
Deferrals, Qualified Non-Elective Contributions and
Qualified Matching Contributions must be made before
the last day of the twelve-month period immediately
following the Plan Year to which contributions
relate.
(e) The Employer shall maintain records sufficient to
demonstrate satisfaction of the ADP test and the
amount of Qualified Non-Elective Contributions or
Qualified Matching Contributions, or both, used in
such test.
(f) The determination and treatment of the Actual
Deferral Percentage amounts of any Participant shall
satisfy such other requirements as may be prescribed
by the Secretary of the Treasury.
10.9 Recharacterization If the Employer allows for Voluntary Contributions in
the Adoption Agreement, a Participant may treat his or her Excess Contributions
as an amount distributed to the Participant and then contributed by the
Participant to the Plan. Recharacterized amounts will remain nonforfeitable and
subject to the same distribution requirements as Elective Deferrals. Amounts may
not be recharacterized by a Highly Compensated Employee to the extent that such
<PAGE>
amount in combination with other Employee Contributions made by that Employee
would exceed any stated limit under the Plan on Voluntary Contributions.
Recharacterization must occur no later than two and one-half months after the
last day of the Plan Year in which such Excess Contributions arose and is deemed
to occur no earlier than the date the last Highly Compensated Employee is
informed in writing of the amount recharacterized and the consequences thereof.
Recharacterized amounts will be taxable to the Participant for the Participant's
tax year in which the Participant would have received them in cash.
10.10 Average Contribution Percentage (ACP) Test If the Employer makes Matching
Contributions or if the Plan allows Employees to make Voluntary Contributions
the Plan must meet additional nondiscrimination requirements provided under Code
Section 401(m). If Employee Contributions (including any Elective Deferrals
recharacterized as Voluntary Contributions) are made pursuant to this Plan, then
in addition to the ADP test referenced in paragraph 10.7, the Average
Contribution Percentage test is also applicable. The Average Contribution
Percentage for Participants who are Highly Compensated Employees for each Plan
Year and the Average Contribution Percentage for Participants who are Non-Highly
Compensated Employees for the same Plan Year must satisfy one of the following
tests:
(a) Basic Test - The Average Contribution Percentage for
Participants who are Highly Compensated Employees for
the Plan Year shall not exceed the Average
Contribution Percentage for Participants who are
non-Highly Compensated Employees for the same Plan
Year multiplied by 1.25; or
(b) Alternative Test - The ACP for Participants who are
Highly Compensated Employees for the Plan Year shall
not exceed the Average Contribution Percentage for
Participants who are non-Highly Compensated Employees
for the same Plan Year multiplied by two (2),
provided that the Average Contribution Percentage for
Participants who are Highly Compensated Employees
does not exceed the Average Contribution Percentage
for Participants who are non-Highly Compensated
Employees by more than two (2) percentage points.
10.11 Special Rules Relating To Application Of ACP Test
(a) If one or more Highly Compensated Employees
participate in both a cash or deferred arrangement
and a plan subject to the ACP test maintained by the
Employer and the sum of the ADP and ACP of those
Highly Compensated Employees subject to either or
both tests exceeds the Aggregate Limit, then the ADP
or ACP of those Highly Compensated Employees who also
participate in a cash or deferred arrangement will be
reduced (beginning with such Highly Compensated
Employee whose ADP or ACP is the highest) as set
forth in the Adoption Agreement so that the limit is
not exceeded. The amount by which each Highly
Compensated Employee's Contribution Percentage
Amounts is reduced shall be treated as an Excess
Aggregate Contribution. The ADP and ACP of the Highly
<PAGE>
Compensated Employees are determined after any
corrections required to meet the ADP and ACP tests.
Multiple use does not occur if both the ADP and ACP
of the Highly Compensated Employees does not exceed
1.25 multiplied by the ADP and ACP of the non-Highly
Compensated Employees.
(b) For purposes of this Article, the Contribution
Percentage for any Participant who is a Highly
Compensated Employee and who is eligible to have
Contribution Percentage Amounts allocated to his or
her account under two or more plans described in Code
Section 401(a), or arrangements described in Code
Section 401(k) that are maintained by the Employer,
shall be determined as if the total of such
Contribution Percentage Amounts was made under each
Plan. If a Highly Compensated Employee participates
in two or more cash or deferred arrangements that
have different plan years, all cash or deferred
arrangements ending with or within the same calendar
year shall be treated as a single arrangement.
(c) In the event that this Plan satisfies the
requirements of Code Sections 401(a)(4), 401(m), or
410(b) only if aggregated with one or more other
plans, or if one or more other plans satisfy the
requirements of such Code Sections only if aggregated
with this Plan, then this Section shall be applied by
determining the Contribution Percentage of Employees
as if all such plans were a single plan. For plan
years beginning after 1989, plans may be aggregated
in order to satisfy Code Section 401(m) only if the
aggregated plans have the same Plan Year.
(d) For purposes of determining the Contribution
percentage of a Participant who is a five-percent
owner or one of the ten most highly-paid, Highly
Compensated Employees, the Contribution Percentage
Amounts and Compensation of such Participant shall
include the Contribution Percentage Amounts and
Compensation for the Plan Year of Family Members as
defined in Paragraph 1.36 of this Plan. Family
Members, with respect to Highly Compensated
Employees, shall be disregarded as separate Employees
in determining the Contribution Percentage both for
Participants who are non-Highly Compensated Employees
and for Participants who are Highly Compensated
Employees. In the event of repeal of the family
aggregation rules under Code Section 414(q)(6), all
applications of such rules under this Plan will cease
as of the effective date of such repeal.
(e) For purposes of determining the Contribution
Percentage test, Employee Contributions are
considered to have been made in the Plan Year in
which contributed to the trust. Matching
<PAGE>
Contributions and Qualified Non-Elective
Contributions will be considered made for a Plan Year
if made no later than the end of the twelve-month
period beginning on the day after the close of the
Plan Year.
(f) The Employer shall maintain records sufficient to
demonstrate satisfaction of the ACP test and the
amount of Qualified Non-Elective Contributions or
Qualified Matching Contributions, or both, used in
such test.
(g) The determination and treatment of the Contribution
Percentage of any Participant shall satisfy such
other requirements as may be prescribed by the
Secretary of the Treasury.
(h) Qualified Matching Contributions and Qualified
Non-Elective Contributions used to satisfy the ADP
test may not be used to satisfy the ACP test.
<PAGE>
ARTICLE XI
ADMINISTRATION
11.1 Plan Administrator The Employer shall be the named fiduciary and Plan
Administrator. These duties shall include:
(a) appointing the Plan's attorney, accountant, actuary,
or any other party needed to administer the Plan,
(b) directing the Trustee/Custodian with respect to
payments from the Fund,
(c) communicating with Employees regarding their
participation and benefits under the Plan, including
the administration of all claims procedures,
(d) filing any returns and reports with the Internal
Revenue Service, Department of Labor, or any other
governmental agency,
(e) reviewing and approving any financial reports,
investment reviews, or other reports prepared by any
party appointed by the Employer under paragraph (a),
(f) establishing a funding policy and investment
objectives consistent with the purposes of the Plan
and the Employee Retirement Income Security Act of
1974, and
(g) construing and resolving any question of Plan
interpretation. The Plan Administrator's
interpretation of Plan provisions including
eligibility and benefits under the Plan is final, and
unless it can be shown to be arbitrary and capricious
will not be subject to "de novo" review.
11.2 Trustee/Custodian The Trustee/Custodian shall be responsible for the
administration of investments held in the Fund. These duties shall include:
(a) receiving contributions under the terms of the Plan,
(b) making distributions from the Fund in accordance with
written instructions received from an authorized
representative of the Employer, and
(c) keeping accurate records reflecting its
administration of the Fund and making such records
available to the Employer for review and audit.
Within 90 days after each Plan Year, and within 90
days after its removal or resignation, the
Trustee/Custodian shall file with the Employer an
accounting of its administration of the Fund during
<PAGE>
such year or from the end of the preceding Plan Year
to the date of removal or resignation. Such
accounting shall include a statement of cash receipts
and disbursements since the date of its last
accounting and shall contain an asset list showing
the fair market value of investments held in the Fund
as of the end of the Plan Year. The value of
marketable investments shall be determined using the
most recent price quoted on a national securities
exchange or over the counter market. The value of
non-marketable investments shall be determined in the
sole judgement of the Trustee/Custodian which
determination shall be binding and conclusive. The
value of investments in securities or obligations of
the Employer in which there is no market shall be
determined in the sole judgement of the Employer and
the Trustee/Custodian shall have no responsibility
with respect to the valuation of such assets. The
Employer shall review the Trustee/Custodian's
accounting and notify the Trustee/Custodian in the
event of its disapproval of the report within 90
days, providing the Trustee/Custodian with a written
description of the items in question. The
Trustee/Custodian shall have 60 days to provide the
Employer with a written explanation of the items in
question. If the Employer again disapproves, the
Trustee/Custodian shall file its accounting in a
court of competent jurisdiction for audit and
adjudication.
(d) employing such agents, attorneys or other
professionals as the Trustee may deem necessary or
advisable in the performance of its duties.
The Trustee's/Custodian's duties shall be limited to those described above. The
Employer shall be responsible for any other administrative duties required under
the Plan or by applicable law.
11.3 Administrative Fees And Expenses All reasonable costs, charges and expenses
incurred by the Trustee/Custodian in connection with the administration of the
Fund and all reasonable costs, charges and expenses incurred by the Plan
Administrator in connection with the administration of the Plan (including fees
for legal services rendered to the Trustee/Custodian or Plan Administrator) may
be paid by the Employer, but if not paid by the Employer when due, shall be paid
from the Fund. Such reasonable compensation to the Trustee/Custodian as may be
agreed upon from time to time between the Employer and the Trustee/Custodian and
such reasonable compensation to the Plan Administrator as may be agreed upon
from time to time between the Employer and Plan Administrator may be paid by the
Employer, but if not paid by the Employer when due shall be paid by the Fund.
The Trustee shall have the right to liquidate trust assets to cover its fees.
Notwithstanding the foregoing, no compensation other than reimbursement for
expenses shall be paid to a Plan Administrator who is the Employer or a
full-time Employee of the Employer. In the event any part of the Trust/Custodial
Account becomes subject to tax, all taxes incurred will be paid from the Fund
unless the Plan Administrator advises the Trustee/Custodian not to pay such tax.
<PAGE>
11.4 Division Of Duties And Indemnification
(a) The Trustee/Custodian shall have the authority and
discretion to manage and govern the Fund to the
extent provided in this instrument, but does not
guarantee the Fund in any manner against investment
loss or depreciation in asset value, or guarantee the
adequacy of the Fund to meet and discharge all or any
liabilities of the Plan.
(b) The Trustee/Custodian shall not be liable for the
making, retention or sale of any investment or
reinvestment made by it, as herein provided, or for
any loss to, or diminution of the Fund, or for any
other loss or damage which may result from the
discharge of its duties hereunder except to the
extent it is judicially determined that the
Trustee/Custodian has failed to exercise the care,
skill, prudence and diligence under the circumstances
then prevailing that a prudent person acting in a
like capacity and familiar with such matters would
use in the conduct of an enterprise of a like
character with like aims.
(c) The Employer warrants that all directions issued to
the Trustee/Custodian by it or the Plan Administrator
will be in accordance with the terms of the Plan and
not contrary to the provisions of the Employee
Retirement Income Security Act of 1974 and
regulations issued thereunder.
(d) The Trustee/Custodian shall not be answerable for any
action taken pursuant to any direction, consent,
certificate, or other paper or document on the belief
that the same is genuine and signed by the proper
person. All directions by the Employer, Participant
or the Plan Administrator shall be in writing. The
Employer shall deliver to the Trustee/Custodian
certificates evidencing the individual or individuals
authorized to act as set forth in the Adoption
Agreement or as the Employer may subsequently inform
the Trustee/Custodian in writing and shall deliver to
the Trustee/Custodian specimens of their signatures.
(e) The duties and obligations of the Trustee/Custodian
shall be limited to those expressly imposed upon it
by this instrument or subsequently agreed upon by the
parties. Responsibility for administrative duties
required under the Plan or applicable law not
expressly imposed upon or agreed to by the
Trustee/Custodian, shall rest solely with the
Employer.
(f) The Trustee shall be indemnified and saved harmless
by the Employer from and against any and all
liability to which the Trustee/Custodian may be
subjected, including all expenses reasonably incurred
in its defense, for any action or failure to act
<PAGE>
resulting from compliance with the instructions of
the Employer, the employees or agents of the
Employer, the Plan Administrator, or any other
fiduciary to the Plan, and for any liability arising
from the actions or non-actions of any predecessor
Trustee/Custodian or fiduciary or other fiduciaries
of the Plan.
(g) The Trustee/Custodian shall not be responsible in any
way for the application of any payments it is
directed to make or for the adequacy of the Fund to
meet and discharge any and all liabilities under the
Plan.
<PAGE>
ARTICLE XII
TRUST FUND/CUSTODIAL ACCOUNT
12.1 The Fund The Fund shall consist of all contributions made under Article III
and Article IV of the Plan and the investment thereof and earnings thereon. All
contributions and the earnings thereon less payments made under the terms of the
Plan, shall constitute the Fund. The Fund shall be administered as provided in
this document.
12.2 Control Of Plan Assets The assets of the Fund or evidence of ownership
shall be held by the Trustee/Custodian under the terms of the Plan and
Trust/Custodial Account. If the assets represent amounts transferred from
another trustee/custodian under a former plan, the Trustee/Custodian named
hereunder shall not be responsible for the propriety of any investment under the
former plan.
12.3 Exclusive Benefit Rules No part of the Fund shall be used for, or diverted
to, purposes other than for the exclusive benefit of Participants, former
Participants with a vested interest, and the beneficiary or beneficiaries of
deceased Participants having a vested interest in the Fund at death.
12.4 Assignment And Alienation Of Benefits No right or claim to, or interest in,
any part of the Fund, or any payment from the Fund, shall be assignable,
transferable, or subject to sale, mortgage, pledge, hypothecation, commutation,
anticipation, garnishment, attachment, execution, or levy of any kind. The
Trustee/Custodian shall not recognize any attempt to assign, transfer, sell,
mortgage, pledge, hypothecate, commute, or anticipate the same, except to the
extent required by law. The preceding sentences shall also apply to the
creation, assignment, or recognition of a right to any benefit payable with
respect to a Participant pursuant to a domestic relations order, unless such
order is determined to be a qualified domestic relations order, as defined in
Code Section 414(p), or any domestic relations order entered before January 1,
1985 which the Plan attorney and Plan Administrator deem to be qualified.
12.5 Determination Of Qualified Domestic Relations Order(QDRO) A Domestic
Relations Order shall specifically state all of the following in order to be
deemed a Qualified Domestic Relations Order ("QDRO"):
(a) The name and last known mailing address (if any) of
the Participant and of each alternate payee covered
by the QDRO. However, if the QDRO does not specify
the current mailing address of the alternate payee,
but the Plan Administrator has independent knowledge
of that address, the QDRO will still be valid.
(b) The dollar amount or percentage of the Participant's
benefit to be paid by the Plan to each alternate
payee, or the manner in which the amount or
percentage will be determined.
(c) The number of payments or period for which the order
applies.
(d) The specific plan (by name) to which the Domestic
Relations Order applies.
<PAGE>
The Domestic Relations Order shall not be deemed a QDRO if it requires the Plan
to provide:
(e) any type or form of benefit, or any option not
already provided for in the Plan;
(f) increased benefits, or benefits in excess of the
Participant's vested rights;
(g) payment of a benefit earlier than allowed by the
Plan's earliest retirement provisions or in the case
of a profit-sharing plan, prior to the allowability
of in-service withdrawals, or
(h) payment of benefits to an alternate payee which are
required to be paid to another alternate payee under
another QDRO.
Promptly, upon receipt of a Domestic Relations Order ("Order") which may or may
not be "Qualified", the Plan Administrator shall notify the Participant and any
alternate payee(s) named in the Order of such receipt, and include a copy of
this paragraph 12.5. The Plan Administrator shall then forward the Order to the
Plan's legal counsel for an opinion as to whether or not the Order is in fact
"Qualified" as defined in Code Section 414(p). Within a reasonable time after
receipt of the Order, not to exceed 60 days, the Plan's legal counsel shall make
a determination as to its "Qualified" status and the Participant and any
alternate payee(s) shall be promptly notified in writing of the determination.
If the "Qualified" status of the Order is in question, there will be a delay in
any payout to any payee including the Participant, until the status is resolved.
In such event, the Plan Administrator shall segregate the amount that would have
been payable to the alternate payee(s) if the Order had been deemed a QDRO. If
the Order is not Qualified, or the status is not resolved (for example, it has
been sent back to the Court for clarification or modification) within 18 months
beginning with the date the first payment would have to be made under the Order,
the Plan Administrator shall pay the segregated amounts plus interest to the
person(s) who would have been entitled to the benefits had there been no Order.
If a determination as to the Qualified status of the Order is made after the
18-month period described above, then the Order shall only be applied on a
prospective basis. If the Order is determined to be a QDRO, the Participant and
alternate payee(s) shall again be notified promptly after such determination.
Once an Order is deemed a QDRO, the Plan Administrator shall pay to the
alternate payee(s) all the amounts due under the QDRO, including segregated
amounts plus interest which may have accrued during a dispute as to the Order's
qualification.
Unless specified otherwise in the Adoption Agreement, the earliest retirement
age with regard to the Participant against whom the order is entered shall be
the date the order is determined to be qualified. This will only allow payouts
to alternate payee(s) and not the Participant.
<PAGE>
ARTICLE XIII
INVESTMENTS
13.1 Fiduciary Standards The Trustee/Custodian shall invest and reinvest
principal and income in the same Fund in accordance with the investment
objectives established by the Employer, provided that:
(a) such investments are prudent under the Employee
Retirement Income Security Act of 1974 and the
regulations thereunder,
(b) such investments are sufficiently diversified or
otherwise insured or guaranteed to minimize the risk
of large losses, and
(c) such investments are similar to those which would be
purchased by another professional money manager for a
like plan with similar investment objectives.
13.2 Funding Arrangement The Employer shall, in the Adoption Agreement, appoint
the Sponsor or an individual or individuals to serve as Trustee of the Fund. If
the Sponsor is not named Trustee, the Sponsor will serve as Custodian under the
Plan as provided at paragraph 13.4 herein.
13.3 Investment Alternatives Of The Trustee As Trustee, the Sponsor shall
implement an investment program based on the Employer's investment objectives
and the Employee Retirement Income Security Act of 1974. In addition to powers
given by law, the Trustee may:
(a) invest the Fund in any form of property, including
common and preferred stocks, exchange traded put and
call options, bonds, money market instruments, mutual
funds (including funds for which the Trustee or its
affiliates serve as investment advisor), savings
accounts, certificates of deposit, Treasury bills,
insurance policies and contracts, or in any other
property, real or personal, having a ready market
including securities issued by the Trustee and/or
affiliates of the Trustee. The Trustee may invest in
its own deposits and, if applicable, those of
affiliates, which bear a reasonable interest rate. No
portion of any Qualified Voluntary Contribution, or
the earnings thereon, may be invested in life
insurance contracts or, as with any
Participant-directed investment, in tangible personal
property characterized by the IRS as a collectible,
(b) transfer any assets of the Fund to a group or
collective trust established to permit the pooling of
funds of separate pension and profit-sharing trusts,
provided the Internal Revenue Service has ruled such
group or collective trust to be qualified under Code
Section 401(a) and exempt under Code Section 501(a)
(or the applicable corresponding provision of any
other Revenue Act) or to any other common,
collective, or commingled trust fund which has been
<PAGE>
or may hereafter be established and maintained by the
Trustee and/or affiliates of the Trustee. Such
commingling of assets of the Fund with assets of
other qualified trusts is specifically authorized,
and to the extent of the investment of the Fund in
such a group or collective trust, the terms of the
instrument establishing the group or collective trust
shall be a part hereof as though set forth herein,
(c) invest up to 100% of the Fund in the common stock,
debt obligations, or any other security issued by the
Employer or by an affiliate of the Employer within
the limitations provided under Sections 406, 407, and
408 of the Employee Retirement Income Security Act of
1974 and further provided that such investment does
not constitute a prohibited transaction under Code
Section 4975. Any such investment in Employer
securities shall only be made upon written direction
of the Employer who shall be solely responsible for
propriety of such investment,
(d) hold cash uninvested and deposit same with any
banking or savings institution, including its own
banking department,
(e) join in or oppose the reorganization,
recapitalization, consolidation, sale or merger of
corporations or properties, including those in which
it is interested as Trustee, upon such terms as it
deems wise,
(f) hold investments in nominee or bearer form,
(g) vote proxies and, if appropriate, pass them on to any
investment manager which may have directed the
investment in the equity giving rise to the proxy,
(h) exercise all ownership rights with respect to assets
held in the Fund.
13.4 Duties Of The Custodian As Custodian, the Sponsor shall be depository of
all or part of the Fund and shall, at the direction of the Trustee hold any
assets received from the Trustee or its agents. The Custodian shall receive and
deliver assets as instructed by the Trustee or its agents. To the extent that
the Custodian holds title to Plan assets and such ownership requires action on
the part of the registered owner, such action will be taken by the Custodian
only upon receipt of specific instructions from the Trustee or its agents.
Proxies shall be voted by or pursuant to the express direction of the Trustee or
authorized agent of the Trustee. As Custodian, the Sponsor shall not give any
investment advice, including any opinion on the prudence of directed
investments. The Employer and Trustee and the agents thereof assume all
responsibility for adherence to fiduciary standards under the Employee
Retirement Income Security Act of 1974 (ERISA) and all amendments thereof, and
regulations thereunder.
<PAGE>
13.5 Participant Loans If agreed upon by the Trustee and permitted by the
Employer in the Adoption Agreement, a Plan Participant may make application to
the Employer requesting a loan from the Fund. The Employer shall have the sole
right to approve or disapprove a Participant's application provided that loans
shall be made available to all Participants on a reasonably equivalent basis.
Loans shall not be made available to highly compensated employees [as defined in
Code Section 414(q)] in an amount greater than the amount made available to
other Employees. Any loan granted hereunder shall be made subject to the
following rules:
(a) No loan, when aggregated with any outstanding
Participant loan(s), shall exceed the lesser of (i)
$50,000 reduced by the excess, if any, of the highest
outstanding balance of loans during the one year
period ending on the day before the loan is made,
over the outstanding balance of loans from the Plan
on the date the loan is made or (ii) one-half of the
fair market value of a Participant's vested account
balance built up from Employer Contributions,
Voluntary Contributions, and Rollover Contributions.
If the Participant's vested account balance is
$20,000 or less, the maximum loan shall not exceed
the lesser of $10,000 or 100% of the Participant's
vested account balance. For the purpose of the above
limitation, all loans from all plans of the Employer
and other members of a group of employers described
in Code Sections 414(b), 414(c), and 414(m) are
aggregated. An assignment or pledge of any portion of
the Participant's interest in the Plan and a loan,
pledge, or assignment with respect to any insurance
contract purchased under the Plan, will be treated as
a loan under this paragraph.
(b) All applications must be made on forms provided by
the Employer and must be signed by the Participant.
(c) Any loan granted hereunder shall bear interest at a
rate reasonable at the time of application,
considering the purpose of the loan and the rate
being charged by representative commercial banks in
the local area for a similar loan unless the Employer
sets forth a different method for determining loan
interest rates in its loan procedures. The loan
agreement shall also provide that the payment of
principal and interest be amortized in level payments
not less frequently than quarterly.
(d) The term of such loan shall not exceed five years
except in the case of a loan for the purpose of
acquiring any house, apartment, condominium, or
mobile home (not used on a transient basis) which is
used or is to be used within a reasonable time as the
principal residence of the Participant. The term of
such loan shall be determined by the Employer
considering the maturity dates quoted by
representative commercial banks in the local area for
a similar loan.
<PAGE>
(e) The principal and interest paid by a Participant on
his or her loan shall be credited to the Fund in the
same manner as for any other Plan investment. If
elected in the Adoption Agreement, loans may be
treated as segregated investments of the individual
Participants. This provision is not available if its
election will result in discrimination in operation
of the Plan.
(f) If a Participant's loan application is approved by
the Employer, such Participant shall be required to
sign a note, loan agreement, and assignment of
one-half of his or her interest in the Fund as
collateral for the loan. The Participant, except in
the case of a profit-sharing plan satisfying the
requirements of paragraph 8.7 must obtain the consent
of his or her Spouse, if any, within the 90 day
period before the time his or her account balance is
used as security for the loan. A new consent is
required if the account balance is used for any
renegotiation, extension, renewal or other revision
of the loan, including an increase in the amount
thereof. The consent must be written, must
acknowledge the effect of the loan, and must be
witnessed by a plan representative or notary public.
Such consent shall thereafter be binding with respect
to the consenting Spouse or any subsequent Spouse.
(g) If a valid Spousal consent has been obtained, then,
notwithstanding any other provision of this Plan, the
portion of the Participant's vested account balance
used as a security interest held by the Plan by
reason of a loan outstanding to the Participant shall
be taken into account for purposes of determining the
amount of the account balance payable at the time of
death or distribution, but only if the reduction is
used as repayment of the loan. If less than 100% of
the Participant's vested account balance (determined
without regard to the preceding sentence) is payable
to the surviving Spouse, then the account balance
shall be adjusted by first reducing the vested
account balance by the amount of the security used as
repayment of the loan, and then determining the
benefit payable to the Surviving Spouse.
(h) The Employer may also require additional collateral
in order to adequately secure the loan.
(i) A Participant's loan shall immediately become due and
payable if such Participant terminates employment for
any reason or fails to make a principal and/or
interest payment as provided in the loan agreement.
If such Participant terminates employment, the
Employer shall immediately request payment of
principal and interest on the loan. If the
Participant refuses payment following termination,
the Employer shall reduce the Participant's vested
<PAGE>
account balance by the remaining principal and
interest on his or her loan. If the Participant's
vested account balance is less than the amount due,
the Employer shall take whatever steps are necessary
to collect the balance due directly from the
Participant. However, no foreclosure on the
Participant's note or attachment of the Participant's
account balance will occur until a distributable
event occurs in the Plan.
(j) No loans will be made to Owner-Employees (as defined
in paragraph 1.51) or Shareholder-Employees (as
defined in paragraph 1.74), unless an exemption from
the prohibited transactions rules is first obtained
from the Department of Labor.
13.6 Insurance Policies If agreed upon by the Trustee and approved by the
Employer in the Adoption Agreement, Employees may elect the purchase of life
insurance policies under the Plan. If elected, the maximum annual premium for a
whole life policy shall not exceed 50% of the aggregate Employer contributions
allocated to the account of a Participant. For profit-sharing plans the 50% test
need only be applied against Employer contributions allocated in the last two
years. Whole life policies are policies with both nondecreasing death benefits
and nonincreasing premiums. The maximum annual premium for term contracts or
universal life policies and all other policies which are not whole life shall
not exceed 25% of aggregate Employer contributions allocated to the account of a
Participant. The two year rule for profit-sharing plans again applies. The
maximum annual premiums for a Participant with both a whole life and a term
contract or universal life policies shall be limited to one-half of the whole
life premiums plus the term premium but shall not exceed one-half of the whole
life premium plus the term premium shall not exceed 25% of the aggregate
Employer contributions allocated to the account of a Participant, subject to the
two year rule for profit-sharing plans. Any policies purchased hereunder shall
be held subject to the following rules:
(a) The Trustee shall be applicant and owner of any
policies issued hereunder.
(b) All policies or contracts purchased hereunder, shall
be endorsed as nontransferable, and must provide that
proceeds will be payable to the Trustee; however, the
Trustee shall be required to pay over all proceeds of
the contracts to the Participant's Designated
Beneficiary in accordance with the distribution
provisions of this Plan. Under no circumstances shall
the Trust retain any part of the proceeds.
(c) Each Participant shall be entitled to designate a
beneficiary under the terms of any contract issued
hereunder; however, such designation will be given to
the Trustee which must be the named beneficiary on
any policy. Such designation shall remain in force,
until revoked by the Participant, by filing a new
beneficiary form with the Trustee. A Participant's
Spouse will be the Designated Beneficiary of the
proceeds in all circumstances unless a Qualified
Election has been made in accordance with paragraph
<PAGE>
8.4. The beneficiary of a deceased Participant shall
receive in addition to the proceeds of the
Participant's policy or policies, the amount credited
to such Participant's investment account.
(d) A Participant who is uninsurable or insurable at
substandard rates, may elect to receive a reduced
amount of insurance, if available, or may waive the
purchase of any insurance.
(e) All dividends or other returns received on any policy
purchased hereunder, shall be applied to reduce the
next premium due on such policy, or if no further
premium is due, such amount shall be credited to the
Fund as part of the account of the Participant for
whom the policy is held.
(f) If Employer contributions are inadequate to pay all
premiums on all insurance policies, the Trustee may,
at the option of the Employer, utilize other amounts
remaining in each Participant's account to pay the
premiums on his respective policy or policies, allow
the policies to lapse, reduce the policies to a level
at which they may be maintained, or borrow against
the policies on a prorated basis, provided that the
borrowing does not discriminate in favor of the
policies on the lives of Officers, Shareholders, and
highly compensated Employees.
(g) On retirement or termination of employment of a
Participant, the Employer shall direct the Trustee to
cash surrender the Participant's policy and credit
the proceeds to his or her account for distribution
under the terms of the Plan. However, before so
doing, the Trustee shall first offer to transfer
ownership of the policy to the Participant in
exchange for payment by the Participant of the cash
value of the policy at the time of transfer. Such
payment shall be credited to the Participant's
account for distribution under the terms of the Plan.
All distributions resulting from the application of
this paragraph shall be subject to the Joint and
Survivor Annuity Rules of Article VIII, if
applicable.
(h) The Employer shall be solely responsible to see that
these insurance provisions are administered properly
and that if there is any conflict between the
provisions of this Plan and any insurance contracts
issued hereunder that the terms of this Plan will
control.
13.7 Employer Investment Direction If agreed upon by the Trustee and approved by
the Employer in the Adoption Agreement, the Employer shall have the right to
direct the Trustee with respect to investments of the Fund, may appoint an
investment manager (registered as an investment advisor under the Investment
Advisors Act of 1940) to direct investments, or may give the Trustee sole
investment management responsibility. The Employer may purchase and sell
<PAGE>
interests in a registered investment company (i.e., mutual funds) for which the
Sponsor, its parent, affiliates, or successors, may serve as investment advisor
and receive compensation from the registered investment company for its services
as investment advisor. The Employer shall advise the Trustee in writing
regarding the retention of investment powers, the appointment of an investment
manager, or the delegation of investment powers to the Trustee. Any investment
directive hereunder shall be made in writing by the Employer or investment
manager, as the case may be. In the absence of such written directive, the
Trustee shall automatically invest the available cash in its discretion in an
appropriate interim investment until specific investment directions are
received. Such instructions regarding the delegation of investment
responsibility shall remain in force until revoked or amended in writing. The
Trustee shall not be responsible for the propriety of any directed investment
made hereunder and shall not be required to consult with or advise the Employer
regarding the investment quality of any directed investment held hereunder. If
the Employer fails to designate an investment manager, the Trustee shall have
full investment authority. If the Employer does not issue investment directions,
the Trustee shall have authority to invest the Fund in its sole discretion.
While the Employer may direct the Trustee with respect to Plan investments, the
Employer may not:
(a) borrow from the Fund or pledge any of the assets of
the Fund as security for a loan,
(b) buy property or assets from or sell property or
assets to the Fund,
(c) charge any fee for services rendered to the Fund, or
(d) receive any services from the Fund on a preferential
basis.
13.8 Employee Investment Direction If agreed to by the Trustee and approved by
the Employer in the Adoption Agreement, Participants shall be given the option
to direct the investment of their personal contributions and their share of the
Employer's contribution among alternative investment funds established as part
of the overall Fund. Unless otherwise specified by the Employer in the Adoption
Agreement, such investment funds shall be restricted to funds offered by the
Trustee. If investments outside the Trustee's control are allowed, Participants
may not direct that investments be made in collectibles, other than U.S.
Government or State issued gold and silver coins. In this connection, a
Participant's right to direct the investment of any contribution shall apply
only to selection of the desired fund. The following rules shall apply to the
administration of such funds.
(a) At the time an Employee becomes eligible for the
Plan, he or she shall complete an investment
designation form stating the percentage of his or her
contributions to be invested in the available funds.
(b) A Participant may change his or her election with
respect to future contributions by filing a new
investment designation form with the Employer in
accordance with the procedures established by the
Plan Administrator.
<PAGE>
(c) A Participant may elect to transfer all or part of
his or her balance from one investment fund to
another by filing an investment designation form with
the Employer in accordance with the procedures
established by the Plan Administrator.
(d) The Employer shall be responsible when transmitting
Employee and Employer contributions to show the
dollar amount to be credited to each investment fund
for each Employee.
(e) Except as otherwise provided in the Plan, neither the
Trustee, nor the Employer, nor any fiduciary of the
Plan shall be liable to the Participant or any of his
or her beneficiaries for any loss resulting from
action taken at the direction of the Participant.
<PAGE>
ARTICLE XIV
TOP-HEAVY PROVISIONS
14.1 Applicability Of Rules If the Plan is or becomes Top-Heavy in any Plan Year
beginning after 1983, the provisions of this Article will supersede any
conflicting provisions in the Plan or Adoption Agreement.
14.2 Minimum Contribution Notwithstanding any other provision in the Employer's
Plan, for any Plan Year in which the Plan is Top-Heavy or Super Top-Heavy, the
aggregate Employer contributions and forfeitures allocated on behalf of any
Participant (without regard to any Social Security contribution) under this Plan
and any other Defined Contribution Plan of the Employer shall be lesser of 3% of
such Participant's Compensation or the largest percentage of Employer
contributions and forfeitures, as a percentage of the first $200,000, as
adjusted under Code Section 415(d), of the Key Employee's Compensation,
allocated on behalf of any Key Employee for that year.
Each Participant who is employed by the Employer on the last day of the Plan
Year shall be entitled to receive an allocation of the Employer's minimum
contribution for such Plan Year. The minimum allocation applies even though
under other Plan provisions the Participant would not otherwise be entitled to
receive an allocation, or would have received a lesser allocation for the year
because the Participant fails to make Mandatory Contributions to the Plan, the
Participant's Compensation is less than a stated amount, or the Participant
fails to complete 1,000 Hours of Service (or such lesser number designated by
the Employer in the Adoption Agreement) during the Plan Year. A Paired
profit-sharing plan designated to provide the minimum Top-Heavy contribution
must do so regardless of profits. An Employer may make the minimum Top-Heavy
contribution available to all Participants or just non-Key Employees.
For purposes of computing the minimum allocation, Compensation shall mean
Compensation as defined in paragraph 1.12(c) of the Plan.
The Top-Heavy minimum contribution does not apply to any Participant to the
extent the Participant is covered under any other plan(s) of the Employer and
the Employer has provided in Section 11 of the Adoption Agreement that the
minimum allocation or benefit requirements applicable to Top-Heavy Plans will be
met in the other plan(s).
If a Key Employee makes an Elective Deferral or has an allocation of Matching
Contributions made to his or her account, a Top-Heavy minimum will be required
for non-Key Employees who are Participants, however, neither Elective Deferrals
by nor Matching Contributions to non-Key Employees may be taken into account for
purposes of satisfying the top-heavy Minimum Contribution requirement.
14.3 Minimum Vesting For any Plan Year in which this Plan is Top-Heavy, the
minimum vesting schedule elected by the Employer in the Adoption Agreement will
automatically apply to the Plan. If the vesting schedule selected by the
Employer in the Adoption Agreement is less liberal than the allowable schedule,
the schedule will automatically be modified. If the vesting schedule under the
Employer's Plan shifts in or out of the Top-Heavy schedule for any Plan Year,
such shift is an amendment to the vesting schedule and the election in paragraph
9.8 of the Plan applies. The minimum vesting schedule applies to all accrued
benefits within the meaning of Code Section 411(a)(7) except those attributable
to Employee contributions, including benefits accrued before the effective date
<PAGE>
of Code Section 416 and benefits accrued before the Plan became Top-Heavy.
Further, no reduction in vested benefits may occur in the event the Plan's
status as Top-Heavy changes for any Plan Year. However, this paragraph does not
apply to the account balances of any Employee who does not have an Hour of
Service after the Plan initially becomes Top-Heavy and such Employee's account
balance attributable to Employer contributions and forfeitures will be
determined without regard to this paragraph.
14.4 Limitations On Allocations In any Plan Year in which the Top-Heavy Ratio
exceeds 90% (i.e., the Plan becomes Super Top-Heavy), the denominators of the
Defined Benefit Fraction (as defined in paragraph 1.16) and Defined Contribution
Fraction (as defined in paragraph 1.19) shall be computed using 100% of the
dollar limitation instead of 125%.
<PAGE>
ARTICLE XV
AMENDMENT AND TERMINATION
15.1 Amendment By Sponsor The Sponsor may amend any or all provisions of this
Plan and Trust/Custodial Account at any time without obtaining the approval or
consent of any Employer which has adopted this Plan and Trust/Custodial Account
provided that no amendment shall authorize or permit any part of the corpus or
income of the Fund to be used for or diverted to purposes other than for the
exclusive benefit of Participants and their beneficiaries, or eliminate an
optional form of distribution. In the case of a mass-submitted plan, the
mass-submitter shall amend the Plan on behalf of the Sponsor.
15.2 Amendment By Employer The Employer may amend any option in the Adoption
Agreement, and may include language as permitted in the Adoption Agreement,
(a) to satisfy Code Section 415, or
(b) to avoid duplication of minimums under Code Section
416
because of the required aggregation of multiple plans.
The Employer may add certain model amendments published by the Internal Revenue
Service which specifically provide that their adoption will not cause the Plan
to be treated as an individually designed plan for which the Employer must
obtain a separate determination letter.
If the Employer amends the Plan and Trust/Custodial Account other than as
provided above, the Employer's Plan shall no longer participate in this
Prototype Plan and will be considered an individually designed plan.
15.3 Termination Employers shall have the right to terminate their Plans upon 60
days notice in writing to the Trustee/Custodian. If the Plan is terminated,
partially terminated, or if there is a complete discontinuance of contributions
under a profit-sharing plan maintained by the Employer, all amounts credited to
the accounts of Participants shall vest and become nonforfeitable. In the event
of a partial termination, only those who are affected by such partial
termination shall be fully vested. In the event of termination, the Employer
shall direct the Trustee/Custodian with respect to the distribution of accounts
to or for the exclusive benefit of Participants or their beneficiaries. The
Trustee/Custodian shall dispose of the Fund in accordance with the written
directions of the Plan Administrator, provided that no liquidation of assets and
payment of benefits, (or provision therefor), shall actually be made by the
Trustee/Custodian until after it is established by the Employer in a manner
satisfactory to the Trustee/Custodian, that the applicable requirements, if any,
of the Employee Retirement Income Security Act of 1974 and the Internal Revenue
Code governing the termination of employee benefit plans, have been or are
being, complied with, or that appropriate authorizations, waivers, exemptions,
or variances have been, or are being obtained.
15.4 Qualification Of Employer's Plan If the adopting Employer fails to attain
or retain Internal Revenue Service qualification, such Employer's Plan shall no
longer participate in this Prototype Plan and will be considered an individually
designed plan.
<PAGE>
15.5 Mergers And Consolidations
(a) In the case of any merger or consolidation of the
Employer's Plan with, or transfer of assets or
liabilities of the Employer's Plan to, any other
plan, Participants in the Employer's Plan shall be
entitled to receive benefits immediately after the
merger, consolidation, or transfer which are equal to
or greater than the benefits they would have been
entitled to receive immediately before the merger,
consolidation, or transfer if the Plan had then
terminated.
(b) Any corporation into which the Trustee/Custodian or
any successor trustee/custodian may be merged or with
which it may be consolidated, or any corporation
resulting from any merger or consolidation to which
the Trustee/Custodian or any successor
trustee/custodian may be a party, or any corporation
to which all or substantially all the trust business
of the Trustee/Custodian or any successor
trustee/custodian may be transferred, shall be the
successor of such Trustee/Custodian without the
filing of any instrument or performance of any
further act, before any court.
15.6 Resignation And Removal The Trustee/Custodian may resign by written notice
to the Employer which shall be effective 60 days after delivery. The Employer
may discontinue its participation in this Prototype Plan and Trust/Custodial
Account effective upon 60 days written notice to the Sponsor. In such event the
Employer shall, prior to the effective date thereof, amend the Plan to eliminate
any reference to this Prototype Plan and Trust/Custodial Account and appoint a
successor trustee or custodian or arrange for another funding agent. The
Trustee/Custodian shall deliver the Fund to its successor on the effective date
of the resignation or removal, or as soon thereafter as practicable, provided
that this shall not waive any lien the Trustee/Custodian may have upon the Fund
for its compensation or expenses. If the Employer fails to amend the Plan and
appoint a successor trustee, custodian, or other funding agent within the said
60 days, or such longer period as the Trustee/Custodian may specify in writing,
the Plan shall be deemed individually designed and the Employer shall be deemed
the successor trustee/custodian. The Employer must then obtain its own
determination letter.
15.7 Qualification Of Prototype The Sponsor intends that this Prototype Plan
will meet the requirements of the Code as a qualified Prototype Retirement Plan
and Trust/Custodial Account. Should the Commissioner of Internal Revenue or any
delegate of the Commissioner at any time determine that the Plan and
Trust/Custodial Account fails to meet the requirements of the Code, the Sponsor
will amend the Plan and Trust/Custodial Account to maintain its qualified
status.
<PAGE>
ARTICLE XVI
GOVERNING LAW
Construction, validity and administration of the Prototype Plan and
Trust/Custodial Account, and any Employer Plan and Trust/Custodial Account as
embodied in the Prototype document and accompanying Adoption Agreement, shall be
governed by Federal law to the extent applicable and to the extent not
applicable by the laws of the State/Commonwealth in which the principal office
of the Sponsor is located.
<PAGE>
PART I - SECTION 401(a)(17) LIMITATION
[MAY BE ADOPTED BY DEFINED CONTRIBUTION
AND DEFINED BENEFIT PLANS]
In addition to other applicable limitations set forth in the Plan, and
notwithstanding any other provision of the Plan to the contrary, for Plan Years
beginning on or after January 1, 1994, the annual Compensation of each Employee
taken into account under the Plan shall not exceed the OBRA '93 annual
compensation limit. The OBRA '93 annual compensation limit is $150,000, as
adjusted by the Commissioner for increases in the cost of living in accordance
with Section 401(a)(17)(B) of the Internal Revenue Code. The cost-of-living in
effect for a calendar year applies to any period, not exceeding 12 months, over
which Compensation is determined (determination period) beginning in such
calendar year. If a determination period consists of fewer than 12 months, the
OBRA '93 annual compensation limit will be multiplied by a fraction, the
numerator of which is the number of months in the determination period, and the
denominator of which is 12.
For Plan Years beginning on or after January 1, 1994, any reference in this
Plan to the limitation under Section 401(a)(17) of the Code shall mean the OBRA
'93 annual compensation limit set forth in this provision.
If Compensation for any prior determination period is taken into account in
determining an Employee's benefits accruing in the current Plan Year, the
Compensation for that prior determination period is subject to the OBRA '93
annual compensation limit in effect for that prior determination period. For
this purpose, for determination periods beginning before the first day of the
first Plan Year beginning on or after January 1, 1994, the OBRA '93 annual
compensation limit is $150,000.
<PAGE>
MODEL AMENDMENT
Revenue Procedure 93-47
(This model amendment allows Participants receiving distribution from
safe-harbored profit sharing plans to waive the 30-day period required under the
Unemployment Compensation Act of 1992. Non-safe harbored plans must still
provide notice not less than 30 days and not more than 90 days prior to the
distribution.)
If a distribution is one to which Section 401(a)(11) and 417 of the Internal
Revenue Code do not apply, such distribution may commence less than 30 days
after the notice required under Section 1.411(a)-11(c) of the Income Tax
Regulations is given, provided that:
(1) the plan administrator clearly informs the Participant that the
Participant has a right to a period of at least 30 days after
receiving the notice to consider the decision of whether or not to
elect a distribution (and, if applicable, a particular
distribution option), and
(2) the Participant, after receiving the notice, affirmatively elects
a distribution.
<PAGE>
MODEL AMENDMENTS
Revenue Procedure 96-49
AMENDMENT 1
The following model amendment may be used to amend plans to provide for the
requirements of USERRA and Section 414(u) of the Code.
"Notwithstanding any provisions of this plan to the contrary, contributions,
benefits and service credit with respect to qualified military service will be
provided in accordance with Section 414(u) of the Internal Revenue Code."
AMENDMENT 2
The following model amendment may be used to amend plans that provide for loans
to participants, it the sponsor chooses to suspend loan repayments during
participants' periods of military service.
"Loan repayments will be suspended under this plan as permitted under Section
414(u) of the Internal Revenue Code."
<PAGE>
Prototype Cash or
Deferred Profit-
Sharing Plan #002
NONSTANDARDIZED
ADOPTION AGREEMENT
PROTOTYPE CASH OR DEFERRED PROFIT-SHARING
PLAN AND TRUST/CUSTODIAL ACCOUNT
Sponsored by
SECURITY NATIONAL BANK AND TRUST COMPANY
The Employer named below hereby establishes a Cash or Deferred Profit-Sharing
Plan for eligible Employees as provided in this Adoption Agreement and the
accompanying Basic Prototype Plan and Trust/Custodial Account Basic Plan
Document #04.
1. EMPLOYER INFORMATION
NOTE: If multiple Employers are adopting the Plan, complete
this section based on the lead Employer. Additional
Employers may adopt this Plan by attaching executed
signature pages to the back of the Employer's Adoption
Agreement.
(a) NAME AND ADDRESS:
PEOPLES FEDERAL SAVINGS & LOAN ASSOC. OF SIDNEY
101 E COURT ST
P O BOX 727
SIDNEY, OH 45365
(b) TELEPHONE NUMBER: (937)492-6129
(c) TAX ID NUMBER: 34-4327402
(d) FORM OF BUSINESS:
[ ] (i) Sole Proprietor
[ ] (ii) Partnership
[X] (iii) Corporation
[ ] (iv) "S" Corporation (formerly known as Subchapter S)
[ ] (v) Other: ______________
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Prototype Cash or
Deferred Profit-
Sharing Plan #002
(e) NAME OF INDIVIDUAL AUTHORIZED TO ISSUE
INSTRUCTIONS TO THE TRUSTEE/CUSTODIAN:
DOUGLAS STEWART, DAVID R FOGT
(f) NAME OF PLAN: PEOPLES FEDERAL SAVINGS & LOAN ASSOCIATION OF
SIDNEY,
401K RETIREMENT PLAN
(g) THREE DIGIT PLAN NUMBER
FOR ANNUAL RETURN/REPORT: 002
2. EFFECTIVE DATE
(a) This is a new Plan having an effective date of January 1, 1997.
(b) This is an amended Plan.
The effective date of the original Plan was _________.
The effective date of the amended Plan is _________ .
(c) If different from above, the Effective Date for the Plan's
Elective Deferral provisions shall be _________.
3. DEFINITIONS
(a) "Collective or Commingled Funds" (Applicable to institutional
Trustees only.) Investment in collective or commingled funds as
permitted at paragraph 13.3(b) of the Basic Plan Document #04
shall only be made to the following specifically named fund(s):
Funds made available after the execution of this Adoption
Agreement will be listed on schedules attached to the end of this
Adoption Agreement.
(b) "Compensation" Compensation shall be determined on the basis of
the:
[x] (i) Plan Year.
2
<PAGE>
Prototype Cash or
Deferred Profit-
Sharing Plan #002
[ ] (ii) Employer's Taxable Year.
[ ] (iii) Calendar Year.
Compensation shall be determined on the basis of the following
safe-harbor definition of Compensation in IRS Regulation Section
1.414(s)-1(c):
[ ] (iv) Code Section 6041 and 6051 Compensation,
[x] (v) Code Section 3401(a) Compensation, or
[ ] (vi) Code Section 415 Compensation.
Compensation [x] shall [ ] shall not include Employer
contributions made pursuant to a Salary Savings Agreement which
are not includable in the gross income of the Employee for the
reasons indicated in the definition of Compensation at 1.12 of
the Basic Plan Document #04.
For purposes of the Plan, Compensation shall be limited to
$__________, the maximum amount which will be considered for Plan
purposes. [If an amount is specified, it will limit the amount of
contributions allowed on behalf of higher compensated Employees.
Completion of this section is not intended to coordinate with the
$200,000 of Code Section 415(d), thus the amount should be less
than $200,000 as adjusted for cost-of-living increases.]
(iii) Exclusions From Compensation:
(1) overtime.
(2) bonuses.
(3) commissions.
(4) _______________
Type of Contribution(s) Exclusion(s)
Elective Deferrals [Section 7(b)] _________
Matching Contributions [Section 7(c)] _________
Qualified Non-Elective Contributions [Section 7(d]
and Non-Elective Contributions [Section 7(e)] _________
3
<PAGE>
Prototype Cash or
Deferred Profit-
Sharing Plan #002
(c) "Entry Date"
[ ] (i) The first day of the Plan Year nearest the date
on which an Employee meets the eligibility
requirements.
[ ] (ii) The earlier of the first day of the Plan Year or
the first day of the seventh month of the Plan
Year coinciding with or following the date on
which an Employee meets the eligibility
requirements.
[ ] (iii) The first day of the Plan Year following the
date on which the Employee meets the eligibility
requirements. If this election is made, the
Service requirement at 4(a)(ii) may not exceed
1/2 year and the age requirement at 4(b)(ii) may
not exceed 20-1/2.
[ ] (iv) The first day of the month coinciding with or
following the date on which an Employee meets
the eligibility requirements.
[X] (v) The first day of the Plan Year, or the first
day of the fourth month, or the first day of the
seventh month or the first day of the tenth
month, of the Plan Year coinciding with or
following the date on which an Employee meets
the eligibility requirements.
(d) "Hours of Service" Shall be determined on the basis of the method
selected below. Only one method may be selected. The method
selected shall be applied to all Employees covered under the Plan
as follows:
[x] (i) On the basis of actual hours for which an
Employee is paid or entitled to payment.
[ ] (ii) On the basis of days worked.
An Employee shall be credited with ten (10)
Hours of Service if under paragraph 1.42 of the
Basic Plan Document #04 such Employee would be
credited with at least one (1) Hour of Service
during the day.
[ ] (iii) On the basis of weeks worked.
An Employee shall be credited with forty-five
(45) Hours of Service if under paragraph 1.42 of
the Basic Plan Document #04 such Employee would
be credited with at least one (1) Hour of
Service during the week.
[ ] (iv) On the basis of semi-monthly payroll periods.
4
<PAGE>
Prototype Cash or
Deferred Profit-
Sharing Plan #002
An Employee shall be credited with ninety-five
(95) Hours of Service if under paragraph 1.42 of
the Basic Plan Document #04 such Employee would
be credited with at least one (1) Hour of
Service during the semi-monthly payroll period.
[ ] (v) On the basis of months worked.
An Employee shall be credited with
one-hundred-ninety (190) Hours of Service if
under paragraph 1.42 of the Basic Plan Document
#04 such Employee would be credited with at
least one (1) Hour of Service during the month.
(e) "Limitation Year" The 12-consecutive month period commencing on
JANUARY 1 and ending on DECEMBER 31.
If applicable, the Limitation Year will be a short Limitation
Year commencing on _____________ and ending on ______________.
Thereafter, the Limitation Year shall end on the date last
specified above.
(f) "Net Profit"
[x] (i) Not applicable (profits will not be required for
any contributions to the Plan).
[ ] (ii) As defined in paragraph 1.49 of the Basic Plan
Document #04.
[ ] (iii) Shall be defined as:
____________________________________
(Only use if definition in paragraph 1.49 of the Basic
Plan Document #04 is to be superseded.)
(g) "Plan Year" The 12-consecutive month period commencing on JANUARY
1 and ending on DECEMBER 31.
If applicable, the Plan Year will be a short Plan Year commencing
on ___________ and __________ ending on. Thereafter, the Plan
Year shall end on the date last specified above.
(h) "Qualified Early Retirement Age" For purposes of making
distributions under the provisions of a Qualified Domestic
Relations Order, the Plan's Qualified Early Retirement Age with
regard to the Participant against whom the order is entered [x]
shall
5
<PAGE>
Prototype Cash or
Deferred Profit-
Sharing Plan #002
[ ] shall not be the date the order is determined to be
qualified. If "shall" is elected, this will only allow payout to
the alternate payee(s).
(i) "Qualified Joint and Survivor Annuity" The safe-harbor provisions
of paragraph 8.7 of the Basic Plan Document #04 [x] are [ ] are
not applicable. If not applicable, the survivor annuity shall be
% (50%, 66-2/3%, 75% or 100%) of the annuity payable during the
lives of the Participant and Spouse. If no answer is specified,
50% will be used.
(j) "Taxable Wage Base" [paragraph 1.79]
[x] (i) Not Applicable - Plan is not integrated with
Social Security.
[ ] (ii) The maximum earnings considered wages for such
Plan Year under Code Section 3121(a).
[ ] (iii) _____% (not more than 100%) of the amount
considered wages for such Plan Year under Code
Section 3121(a).
[ ] (iv) $__________, provided that such amount is not in
excess of the amount determined under paragraph
3(j)(ii) above.
[ ] (v) For the 1989 Plan Year $10,000. For all
subsequent Plan Years, 20% of the maximum
earnings considered wages for such Plan Year
under Code Section 3121(a).
NOTE: Using less than the maximum at (ii) may result
in a change in the allocation formula in Section
7.
(k) "Valuation Date(s)" Allocations to Participant Accounts will be
done in accordance with Article V of the Basic Plan Document #04:
(i) Daily (v) Quarterly
(ii) Weekly (vi) Semi-Annually
(iii) Monthly (vii) Annually
(iv) Bi-Monthly
Indicate Valuation Date(s) to be used by specifying option from
list above:
6
<PAGE>
Prototype Cash or
Deferred Profit-
Sharing Plan #002
Type of Contribution(s) Valuation Date(s)
----------------------- -----------------
After-Tax Voluntary Contributions [Section 6] ___
Elective Deferrals [Section 7(b)] (i)
Matching Contributions [Section 7(c)] (i)
Qualified Non-Elective Contributions [Section 7(d)] (i)
Non-Elective Contributions [Section 7(e), (f) and (g)] (i)
Minimum Top-Heavy Contributions [Section 7(i)] (i)
(l) "Year of Service"
(i) For Eligibility Purposes: The 12-consecutive month period
during which an Employee is credited with 1000 (not more
than 1,000) Hours of Service.
(ii) For Allocation Accrual Purposes: The 12-consecutive month
period during which an Employee is credited with 501 (not
more than 1,000) Hours of Service.
(iii) For Vesting Purposes: The 12-consecutive month period
during which an Employee is credited with 1000 (not more
than 1,000) Hours of Service.
4. ELIGIBILITY REQUIREMENTS
(a) Service:
[ ] (i) The Plan shall have no service requirement.
[x] (ii) The Plan shall cover only Employees having
completed at least one [not more than three (3)]
Years of Service. If more than one (1) is
specified, for Plan Years beginning in 1989 and
later, the answer will be deemed to be one (1).
NOTE: If the eligibility period selected is less than one year,
an Employee will not be required to complete any
specified number of Hours of Service to receive credit
for such period.
7
<PAGE>
Prototype Cash or
Deferred Profit-
Sharing Plan #002
(b) Age:
[ ] (i) The Plan shall have no minimum age requirement.
[x] (ii) The Plan shall cover only Employees having
attained age 21 (not more than age 21).
(c) Classification:
The Plan shall cover all Employees who have met the age and
service requirements with the following exceptions:
[x] (i) No exceptions.
[ ] (ii) The Plan shall exclude Employees included in a
unit of Employees covered by a collective
bargaining agreement between the Employer and
Employee Representatives, if retirement benefits
were the subject of good faith bargaining. For
this purpose, the term "Employee Represen
tative" does not include any organization more
than half of whose members are Employees who are
owners, officers, or executives of the Employer.
[ ] (iii) The Plan shall exclude Employees who are
nonresident aliens and who receive no earned
income from the Employer which constitutes
income from sources within the United States.
[ ] (iv) The Plan shall exclude from participation any
nondiscriminatory classification of Employees
determined as follows:
____________________________________
(d) Employees on Effective Date:
[ ] (i) Not Applicable. All Employees will be required
to satisfy both the age and Service requirements
specified above.
[X] (ii) Employees employed on the Plan's Effective Date
do not have to satisfy the Service requirements
specified above.
[ ] (iii) Employees employed on the Plan's Effective Date
do not have to satisfy the age requirements
specified above.
8
<PAGE>
Prototype Cash or
Deferred Profit-
Sharing Plan #002
5. RETIREMENT AGES
(a) Normal Retirement Age:
If the Employer imposes a requirement that Employees retire upon
reaching a specified age, the Normal Retirement Age selected
below may not exceed the Employer imposed mandatory retirement
age.
[x] (i) Normal Retirement Age shall be 65 (not to exceed
age 65).
[ ] (ii) Normal Retirement Age shall be the later of
attaining age (not to exceed age 65) or the (not
to exceed the 5th) anniversary of the first day
of the first Plan Year in which the Participant
commenced participation in the Plan.
(b) Early Retirement Age:
[ ] (i) Not Applicable.
[x] (ii) The Plan shall have an Early Retirement Age of
55 (not less than 55) and completion of 5 Years
of Service.
6. EMPLOYEE CONTRIBUTIONS
[x] (a) Participants shall be permitted to make Elective
Deferrals in any amount from 1 % up to 15 % of
their Compensation.
If (a) is applicable, Participants shall be permitted to
amend their Salary Savings Agreements to change the
contribution percentage as provided below:
[ ] (i) On the Anniversary Date of the Plan,
[ ] (ii) On the Anniversary Date of the Plan and
on the first day of the seventh month of
the Plan Year,
[ ] (iii) On the Anniversary Date of the Plan and
on the first day following any Valuation
Date, or
[x] (iv) Upon 30 days notice to the Employer.
[ ] (b) Participants shall be permitted to make after tax
Voluntary Contributions.
9
<PAGE>
Prototype Cash or
Deferred Profit-
Sharing Plan #002
[ ] (c) Participants shall be required to make after tax
Voluntary Contributions as follows (Thrift
Savings Plan):
[ ] (i) % of Compensation.
[ ] (ii) A percentage determined by the Employee
on his or her enrollment form.
[x] (d) If necessary to pass the Average Deferral
Percentage Test, Participants [ ] may [x] may
not have Elective Deferrals recharacterized as
Voluntary Contributions.
NOTE: The Average Deferral Percentage Test will apply to
contributions under (a) above. The Average Contribution
Percentage Test will apply to contributions under (b) and
(c) above, and may apply to (a).
7. EMPLOYER CONTRIBUTIONS AND ALLOCATION THEREOF
NOTE: The Employer shall make contributions to the Plan in
accordance with the formula or formulas selected below.
The Employer's contribution shall be subject to the
limitations contained in Articles III and X. For this
purpose, a contribution for a Plan Year shall be limited
for the Limitation Year which ends with or within such
Plan Year. Also, the integrated allocation formulas below
are for Plan Years beginning in 1989 and later. The
Employer's allocation for earlier years shall be as
specified in its Plan prior to amendment for the Tax
Reform Act of 1986.
(a) Profits Requirement:
(i) Current or Accumulated Net Profits are required for:
[ ] (A) Matching Contributions.
[ ] (B) Qualified Non-Elective Contributions.
[ ] (C) discretionary contributions.
(ii) No Net Profits are required for:
[x] (A) Matching Contributions.
[x] (B) Qualified Non-Elective Contributions.
10
<PAGE>
Prototype Cash or
Deferred Profit-
Sharing Plan #002
[x] (C) discretionary contributions.
NOTE: Elective Deferrals can always be contributed regardless of
profits.
[ ] (b) Salary Savings Agreement:
The Employer shall contribute and allocate to each Participant's
account an amount equal to the amount withheld from the
Compensation of such Participant pursuant to his or her Salary
Savings Agreement. If applicable, the maximum percentage is
specified in Section 6 above.
An Employee who has terminated his or her election under the
Salary Savings Agreement other than for hardship reasons may not
make another Elective Deferral:
[ ] (i) until the first day of the next Plan Year.
[x] (ii) until the first day of the next valuation period.
[ ] (iii) for a period of ______ month(s) (not to exceed 12
months).
[X] (c) Matching Employer Contribution [See paragraphs (h) and
(i)]:
[X] (i) Percentage Match: The Employer shall contribute
and allocate to each eligible Participant's
account an amount equal to 50% of the amount
contributed and allocated in accordance with
paragraph 7(b) above and (if checked) ____% of [
] the amount of Voluntary Contributions made in
accordance with paragraph 4.1 of the Basic Plan
Document #04. The Employer shall not match
Participant Elective Deferrals as provided above
in excess of $________ or in excess of 6% of the
Participant's Compensation or if applicable,
Voluntary Contributions in excess of $__________
or in excess of ____% of the Participant's
Compensation. In no event will the match on both
Elective Deferrals and Voluntary Contributions
exceed a combined amount of $________ or ____%.
[ ] (ii) Discretionary Match: The Employer shall
contribute and allocate to each eligible
Participant's account a percentage of the
Participant's Elective Deferral contributed and
allocated in accordance with paragraph 7(b)
above. The Employer shall set such percentage
prior to the end of the Plan Year. The Employer
shall not match Participant Elective Deferrals
in excess of $________ or in excess of ____% of
the Participant's Compensation.
11
<PAGE>
Prototype Cash or
Deferred Profit-
Sharing Plan #002
[ ] (iii) Tiered Match: The Employer shall contribute and
allocate to each Participant's account an amount
equal to ____% of the first ____% of the
Participant's Compensation, to the extent
deferred.
____% of the next ____% of the Participant's
Compensation, to the extent deferred.
____% of the next ____% of the Participant's
Compensation, to the extent deferred.
NOTE: Percentages specified in (iii) above may not increase as
the percentage of Participant's contribution increases.
[ ] (iv) Flat Dollar Match: The Employer shall contribute
and allocate to each Participant's account $ if
the Participant defers at least 1% of
Compensation.
[ ] (v) Percentage of Compensation Match: The Employer
shall contribute and allocate to each
Participant's account % of Compensation if the
Participant defers at least 1% of Compensation.
[ ] (vi) Proportionate Compensation Match: The Employer
shall contribute and allocate to each
Participant who defers at least 1% of
Compensation, an amount determined by
multiplying such Employer Matching Contribution
by a fraction the numerator of which is the
Participant's Compensation and the denominator
of which is the Compensation of all Participants
eligible to receive such an allocation. The
Employer shall set such discretionary
contribution prior to the end of the Plan Year.
[ ] (vii) Qualified Match: Employer Matching Contributions
will be treated as Qualified Matching
Contributions to the extent specified below:
[ ] (A) All Matching Contributions.
[ ] (B) None.
[ ] (C) ____% of the Employer's
Matching Contribution.
[ ] (D) Up to ____% of each
Participant's Compensation.
12
<PAGE>
Prototype Cash or
Deferred Profit-
Sharing Plan #002
[ ] (E) The amount necessary to meet the
[ ] Average Deferral Percentage
(ADP) Test, [ ] Average
Contribution Percentage (ACP)
Test, [ ] Both the ADP and ACP
Tests.
(viii) Computation Period: The time
period upon which matching
contributions will be based
shall be
[ ] (A) weekly
[ ] (B) bi-weekly
[ ] (C) semi-monthly
[x] (D) monthly
[ ] (E) quarterly
[ ] (F) semi-annually
[ ] (G) annually
(ix) Eligibility for Match: Employer
Matching Contributions, whether
or not Qualified, will only be
made on Employee Contributions
not withdrawn prior to the end
of the [X] valuation period [ ]
Plan Year.
[x] (d) Qualified Non-Elective Employer Contribution - [See
paragraphs (h) and (i)] These contributions are fully vested when
contributed.
The Employer shall have the right to make an additional
discretionary contribution which shall be allocated to each
eligible Employee in proportion to his or her Compensation as a
percentage of the Compensation of all eligible Employees. This
part of the Employer's contribution and the allocation thereof
shall be unrelated to any Employee contributions made hereunder.
The amount of Qualified non-Elective Contributions taken into
account for purposes of meeting the ADP or ACP test requirements
is:
[ ] (i) All such Qualified non-Elective Contributions.
[ ] (ii) The amount necessary to meet [ ] the ADP test,
[ ] the ACP test, [x] Both the ADP and ACP tests.
13
<PAGE>
Prototype Cash or
Deferred Profit-
Sharing Plan #002
Qualified non-Elective Contributions will be made to:
[ ] (iii) All Employees eligible to participate.
[x] (iv) Only non-Highly Compensated Employees eligible
to participate.
[x] (e) Additional Employer Contribution Other Than Qualified
Non-Elective Contributions - Non-Integrated [See paragraphs (h)
and (i)]
The Employer shall have the right to make an additional
discretionary contribution which shall be allocated to each
eligible Employee in proportion to his or her Compensation as a
percentage of the Compensation of all eligible Employees. This
part of the Employer's contribution and the allocation thereof
shall be unrelated to any Employee contributions made hereunder.
[ ] (f) Additional Employer Contribution - Integrated Allocation
Formula [See paragraphs (h) and (i)]
The Employer shall have the right to make an additional
discretionary contribution. The Employer's contribution for the
Plan Year plus any forfeitures shall be allocated to the accounts
of eligible Participants as follows:
(i) First, to the extent contributions and forfeitures are
sufficient, all Participants will receive an allocation
equal to 3% of their Compensation.
(ii) Next, any remaining Employer Contributions and
forfeitures will be allocated to Participants who have
Compensation in excess of the Taxable Wage Base (excess
Compensation). Each such Participant will receive an
allocation in the ratio that his or her excess
compensation bears to the excess Compensation of all
Participants. Participants may only receive an allocation
of 3% of excess Compensation.
(iii) Next, any remaining Employer contributions and
forfeitures will be allocated to all Participants in the
ratio that their Compensation plus excess Compensation
bears to the total Compensation plus excess Compensation
of all Participants. Participants may only receive an
allocation of up to 2.7% of their Compensation plus
excess Compensation, under this allocation method. If the
Taxable Wage Base defined at Section 3(j) is less than or
equal to the greater of $10,000 or 20% of the maximum,
the 2.7% need not be reduced. If the amount specified is
greater than the greater of $10,000 or 20% of the maximum
Taxable Wage Base, but not more than 80%, 2.7% must be
reduced to 1.3%. If the amount
14
<PAGE>
Prototype Cash or
Deferred Profit-
Sharing Plan #002
specified is greater than 80% but less than 100% of the
maximum Taxable Wage Base, the 2.7% must be reduced to
2.4%.
NOTE: If the Plan is not Top-Heavy or if the Top-Heavy minimum
contribution or benefit is provided under another Plan
[see Section 11(c)(ii)] covering the same Employees,
sub-paragraphs (i) and (ii) above may be disregarded and
5.7%, 4.3% or 5.4% may be substituted for 2.7%, 1.3% or
2.4% where it appears in (iii) above.
(iv) Next, any remaining Employer contributions and
forfeitures will be allocated to all Participants
(whether or not they received an allocation under the
preceding paragraphs) in the ratio that each
Participant's Compensation bears to all Participants'
Compensation.
[ ] (g) Additional Employer Contribution-Alternative Integrated
Allocation Formula. [See paragraph (h) and (i)]
The Employer shall have the right to make an additional
discretionary contribution. To the extent that such contributions
are sufficient, they shall be allocated as follows:
______% of each eligible Participant's Compensation plus ____% of
Compensation in excess of the Taxable Wage Base defined at
Section 3(j) hereof. The percentage on excess compensation may
not exceed the lesser of (i) the amount first specified in this
paragraph or (ii) the greater of 5.7% or the percentage rate of
tax under Code Section 3111(a) as in effect on the first day of
the Plan Year attributable to the Old Age (OA) portion of the
OASDI provisions of the Social Security Act. If the Employer
specifies a Taxable Wage Base in Section 3(j) which is lower than
the Taxable Wage Base for Social Security purposes (SSTWB) in
effect as of the first day of the Plan Year, the percentage
contributed with respect to excess Compensation must be adjusted.
If the Plan's Taxable Wage Base is greater than the larger of
$10,000 or 20% of the SSTWB but not more than 80% of the SSTWB,
the excess percentage is 4.3%. If the Plan's Taxable Wage Base is
greater than 80% of the SSTWB but less than 100% of the SSTWB,
the excess percentage is 5.4%.
NOTE: Only one plan maintained by the Employer may be
integrated with Social Security.
15
<PAGE>
Prototype Cash or
Deferred Profit-
Sharing Plan #002
(h) Allocation of Excess Amounts (Annual Additions)
In the event that the allocation formula above results in an
Excess Amount, such excess shall be:
[ ] (i) placed in a suspense account accruing no gains
or losses for the benefit of the Participant.
[x] (ii) reallocated as additional Employer contributions
to all other Participants to the extent that
they do not have any Excess Amount.
(i) Minimum Employer Contribution Under Top-Heavy Plans:
For any Plan Year during which the Plan is Top-Heavy, the sum of
the contributions and forfeitures as allocated to eligible
Employees under paragraphs 7(d), 7(e), 7(f), 7(g) and 9 of this
Adoption Agreement shall not be less than the amount required
under paragraph 14.2 of the Basic Plan document #04. Top-Heavy
minimums will be allocated to:
[ ] (i) all eligible Participants.
[x] (ii) only eligible non-Key Employees who are
Participants.
(j) Return of Excess Contributions and/or Excess Aggregate
Contributions:
In the event that one or more Highly Compensated Employees is
subject to both the ADP and ACP tests and the sum of such tests
exceeds the Aggregate Limit, the limit will be satisfied by
reducing the:
[ ] (i) the ADP of the affected Highly Compensated
Employees.
[ ] (ii) the ACP of the affected Highly Compensated
Employees.
[x] (iii) a combination of the ADP and ACP of the affected
Highly Compensated Employees.
8. ALLOCATIONS TO TERMINATED EMPLOYEES
[ ] (a) The Employer will not allocate Employer related
contributions to Employees who terminate during a Plan
Year, unless required to satisfy the requirements of Code
Section 401(a)(26) and 410(b). (These requirements are
effective for 1989 and subsequent Plan Years.)
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Prototype Cash or
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[ ] (b) The Employer will allocate Employer matching and other
related contributions as indicated below to Employees who
terminate during the Plan Year as a result of:
Matching Other
[ ] [ ] (i) Retirement.
[ ] [ ] (ii) Disability.
[ ] [ ] (iii) Death.
[ ] [ ] (iv) Other termination of employment
provided that the Participant
has completed a Year of Service
as defined for Allocation
Accrual Purposes.
[ ] [ ] (v) Other termination of employment
even though the Participant has
not completed a Year of Service.
[ ] [ ] (vi) Termination of employment (for
any reason) provided that the
Participant had completed a Year
of Service for Allocation
Accrual Purposes.
9. ALLOCATION OF FORFEITURES
NOTE: Subsections (a), (b) and (c) below apply to forfeitures
of amounts other than Excess Aggregate Contributions.
(a) Allocation Alternatives:
If forfeitures are allocated to Participants, such
allocation shall be done in the same manner as the
Employer's contribution.
[ ] (i) Not Applicable. All contributions are
always fully vested.
[ ] (ii) Forfeitures shall be allocated to
Participants in the same manner as the
Employer's contribution.
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Prototype Cash or
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If allocation to other Participants is selected, the
allocation shall be as follows:
[1] Amount attributable to Employer
discretionary contributions and
Top-Heavy minimums will be
allocated to:
[ ] all eligible Participants
under the Plan.
[ ] only those Participants
eligible for an
allocation of Employer
contributions in the
current year.
[ ] only those Participants
eligible for an
allocation of matching
contributions in the
current year.
[2] Amounts attributable to Employer
Matching contributions will be
allocated to:
[ ] all eligible Participants.
[ ] only those Participants
eligible for allocations
of matching contributions
in the current year.
[x] (iii) Forfeitures shall be applied to reduce
the Employer's contribution for such
Plan Year.
[ ] (iv) Forfeitures shall be applied to offset
administrative expenses of the Plan. If
forfeitures exceed these expenses,
(iii) above shall apply.
(b) Date for Reallocation:
NOTE: If no distribution has been made to a former Participant,
sub-section (i) below will apply to such Participant even
if the Employer elects (ii), (iii) or (iv) below as its
normal administrative policy.
[ ] (i) Forfeitures shall be reallocated at the end of
the Plan Year during which the former
Participant incurs his or her fifth consecutive
one year Break In Service.
[ ] (ii) Forfeitures will be reallocated immediately (as
of the next Valuation Date).
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Prototype Cash or
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[ ] (iii)Forfeitures shall be reallocated at the end of
the Plan Year during which the former Employee
incurs his or her (1st, 2nd, 3rd, or 4th)
consecutive one year Break In Service.
[x] (iv) Forfeitures will be reallocated immediately (as
of the Plan Year end).
(c) Restoration of Forfeitures:
If amounts are forfeited prior to five consecutive 1-year Breaks
in Service, the Funds for restoration of account balances will be
obtained from the following resources in the order indicated
(fill in the appropriate number):
[1] (i) Current year's forfeitures.
[2] (ii) Additional Employer contribution.
[-] (iii) Income or gain to the Plan.
(d) Forfeitures of Excess Aggregate Contributions shall be:
[x] (i) Applied to reduce Employer contributions.
[ ] (ii) Allocated, after all other forfeitures under the
Plan, to the Matching Contribution account of
each non-highly compensated Participant who made
Elective Deferrals or Voluntary Contributions in
the ratio which each such Participant's
Compensation for the Plan Year bears to the
total Compensation of all Participants for such
Plan Year. Such forfeitures cannot be allocated
to the account of any Highly Compensated
Employee.
Forfeitures of Excess Aggregate Contributions will be so applied
at the end of the Plan Year in which they occur.
10. CASH OPTION
[ ] (a) The Employer may permit a Participant to elect to defer
to the Plan, an amount not to exceed % of any Employer
paid cash bonus made for such Participant for any year. A
Participant must file an election to defer such
contribution at least fifteen (15) days prior to the end
of the Plan Year. If the Employee fails to make such an
election, the entire Employer paid cash bonus to which
the Participant would be entitled shall be paid as cash
and not to the Plan. Amounts
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Prototype Cash or
Deferred Profit-
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deferred under this section shall be treated for all
purposes as Elective Deferrals. Notwithstanding the
above, the election to defer must be made before the
bonus is made available to the Participant.
[x] (b) Not Applicable.
11. LIMITATIONS ON ALLOCATIONS
[ ] This is the only Plan the Employer maintains or ever maintained,
therefore, this section is not applicable.
[X] The Employer does maintain or has maintained another Plan
(including a Welfare Benefit Fund or an individual medical
account (as defined in Code Section 415(l)(2)), under which
amounts are treated as Annual Additions) and has completed the
proper sections below.
Complete (a), (b) and (c) only if the Employer maintains or ever
maintained another qualified plan, including a Welfare Benefit
Fund or an individual medical account [as defined in Code Section
415(l)(2)] in which any Participant in this Plan is (or was) a
participant or could possibly become a participant.
(a) If the Participant is covered under another qualified Defined
Contribution Plan maintained by the Employer, other than a Master
or Prototype Plan:
[X] (i) the provisions of Article X of the Basic Plan
Document #04 will apply, as if the other plan
were a Master or Prototype Plan.
[ ] (ii) Attach provisions stating the method under which
the plans will limit total Annual Additions to
the Maximum Permissible Amount, and will
properly reduce any Excess Amounts, in a manner
that precludes Employer discretion.
(b) If a Participant is or ever has been a participant in a Defined
Benefit Plan maintained by the Employer:
Attach provisions which will satisfy the 1.0 limitation of Code
Section 415(e). Such language must preclude Employer discretion.
The Employer must also specify the interest and mortality
assumptions used in determining Present Value in the Defined
Benefit Plan.
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Prototype Cash or
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(c) The minimum contribution or benefit required under Code Section
416 relating to Top-Heavy Plans shall be satisfied by:
[ ] (i) this Plan.
[x] (ii) PEOPLES-SIDNEY FINANCIAL CORPORATION
EMPLOYEE STOCK OWNERSHIP PLAN
(Name of other qualified plan of the Employer).
[ ] (iii) Attach provisions stating the method under which
the minimum contribution and benefit provisions
of Code Section 416 will be satisfied. If a
Defined Benefit Plan is or was maintained, an
attachment must be provided showing interest and
mortality assumptions used in the Top-Heavy
Ratio.
12. VESTING
Employees shall have a fully vested and nonforfeitable interest in any
Employer contribution and the investment earnings thereon made in
accordance with paragraphs (select one or more options) [ ] 7(c), [ ]
7(e), [ ] 7(f), [ ] 7(g) and [ ] 7(i) hereof. Contributions under
paragraph 7(b), 7(c)(vii) and 7(d) are always fully vested. If one or more
of the foregoing options are not selected, such Employer contributions
shall be subject to the vesting table selected by the Employer.
Each Participant shall acquire a vested and nonforfeitable percentage in
his or her account balance attributable to Employer contributions and the
earnings thereon under the procedures selected below except with respect
to any Plan Year during which the Plan is Top-Heavy, in which case the
Two-twenty vesting schedule [Option (b)(iv)] shall automatically apply
unless the Employer has already elected a faster vesting schedule. If the
Plan is switched to option (b)(iv), because of its Top-Heavy status, that
vesting schedule will remain in effect even if the Plan later becomes
non-Top-Heavy until the Employer executes an amendment of this Adoption
Agreement indicating otherwise.
(a) Computation Period:
The computation period for purposes of determining Years of
Service and Breaks in Service for purposes of computing a
Participant's nonforfeitable right to his or her account balance
derived from Employer contributions:
[ ] (i) shall not be applicable since Participants are
always fully vested,
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Prototype Cash or
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[ ] (ii) shall commence on the date on which an Employee
first performs an Hour of Service for the
Employer and each subsequent 12-consecutive
month period shall commence on the anniversary
thereof, or
[x] (iii) shall commence on the first day of the Plan Year
during which an Employee first performs an Hour
of Service for the Employer and each subsequent
12-consecutive month period shall commence on
the anniversary thereof.
A Participant shall receive credit for a Year of Service if he or she
completes at least 1,000 Hours of Service [or if lesser, the number of
hours specified at 3(l)(iii) of this Adoption Agreement] at any time
during the 12-consecutive month computation period. Consequently, a Year
of Service may be earned prior to the end of the 12-consecutive month
computation period and the Participant need not be employed at the end of
the 12-consecutive month computation period to receive credit for a Year
of Service.
(b) Vesting Schedules:
NOTE: The vesting schedules below only apply to a Participant
who has at least one Hour of Service during or after the
1989 Plan Year. If applicable, Participants who separated
from Service prior to the 1989 Plan Year will remain
under the vesting schedule as in effect in the Plan prior
to amendment for the Tax Reform Act of 1986.
(i) Full and immediate vesting.
Years of Service
1 2 3 4 5 6 7
- - - - - - -
(ii) ___% 100%
(iii) ___% ___% 100%
(iv) ___% 20% 40% 60% 80% 100%
(v) ___% ___% 20% 40% 60% 80% 100%
(vi) 10% 20% 30% 40% 60% 80% 100%
(vii) 20% 40% 60% 80% 100%
---- ---- ---- ----
(viii) % % % % % % 100%
---- ---- ---- ---- ---- ----
NOTE: The percentages selected for schedule (viii) may not be
less for any year than the percentages shown at schedule
(v).
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Prototype Cash or
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[ ] All contributions other than those which are fully vested
when contributed will vest under schedule above.
[X] Contributions other than those which are fully vested
when contributed will vest as provided below:
Vesting
Option Selected Type Of Employer Contribution
--------------- -----------------------------
VII 7(c) Employer Match on Salary Savings
VII 7(c) Employer Match on
Employee Voluntary
VII 7(e) Employer Discretionary
7(f) & (g) Employer Discretionary -
Integrated
(c) Service disregarded for Vesting:
[x] (i) Not Applicable. All Service shall be considered.
[ ] (ii) Service prior to the Effective Date of this Plan
or a predecessor plan shall be disregarded when
computing a Participant's vested and
nonforfeitable interest.
[ ] (iii) Service prior to a Participant having attained
age 18 shall be disregarded when computing a
Participant's vested and nonforfeitable
interest.
13. SERVICE WITH PREDECESSOR ORGANIZATION
For purposes of satisfying the Service requirements for eligibility, Hours
of Service shall include Service with the following predecessor
organization(s):
(These hours will also be used for vesting purposes.)
14. ROLLOVER/TRANSFER CONTRIBUTIONS
(a) Rollover Contributions, as described at paragraph 4.3 of the
Basic Plan Document #04, [x] shall [ ] shall not be permitted. If
permitted, Employees [x] may [ ] may not make Rollover
Contributions prior to meeting the eligibility requirements for
participation in the Plan.
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Prototype Cash or
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(b) Transfer Contributions, as described at paragraph 4.4 of the
Basic Plan Document #04 [ ] shall [x] shall not be permitted. If
permitted, Employees [ ] may [x] may not make Transfer
Contributions prior to meeting the eligibility requirements for
participation in the Plan.
NOTE: Even if available, the Employer may refuse to accept such
contributions if its Plan meets the safe-harbor rules of
paragraph 8.7 of the Basic Plan Document #04.
15. HARDSHIP WITHDRAWALS
Hardship withdrawals, as provided for in paragraph 6.9 of the Basic Plan
Document #04, [X] are [ ] are not permitted.
16. PARTICIPANT LOANS
Participant loans, as provided for in paragraph 13.5 of the Basic Plan
Document #04, [ ] are [X] are not permitted. If permitted, repayments of
principal and interest shall be repaid to [ ] the Participant's segregated
account or [ ] the general Fund.
17. INSURANCE POLICIES
The insurance provisions of paragraph 13.6 of the Basic Plan Document #04
[ ] shall [x] shall not be applicable.
18. EMPLOYER INVESTMENT DIRECTION
The Employer investment direction provisions, as set forth in paragraph
13.7 of the Basic Plan Document #04, [ ] shall [x] shall not be
applicable.
19. EMPLOYEE INVESTMENT DIRECTION
(a) The Employee investment direction provisions, as set forth in
paragraph 13.8 of the Basic Plan Document #04, [X] shall [ ]
shall not be applicable.
If applicable, Participants may direct their investments:
[X] (i) among funds offered by the Trustee.
[ ] (ii) among any allowable investments.
(b) Participants may direct the following kinds of contributions and
the earnings thereon (check all applicable):
[X] (i) All Contributions
[ ] (ii) Elective Deferrals
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Prototype Cash or
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[ ] (iii) Employee Voluntary Contributions (after-tax)
[ ] (iv) Employee Mandatory Contributions (after-tax)
[ ] (v) Employer Qualified Matching Contributions
[ ] (vi) Other Employer Matching Contributions
[ ] (vii) Employer Qualified Non-Elective Contributions
[ ] (viii) Employer Discretionary Contributions
[ ] (ix) Rollover Contributions
[ ] (x) Transfer Contributions
[ ] (xi) All of above which are checked, but only to the
extent that the Participant is vested in those
contributions.
NOTE: To the extent that Employee investment direction was
previously allowed, the Trustee shall have the right to
either make the assets part of the general Trust, or
leave them as separately invested subject to the rights
of paragraph 13.8.
20. EARLY PAYMENT OPTION
(a) A Participant who separates from Service prior to retirement,
death or Disability [x] may [ ] may not make application to the
Employer requesting an early payment of his or her vested account
balance.
(b) A Participant who has attained age 59-1/2 and who has not
separated from Service [x] may [ ] may not obtain a distribution
of his or her vested Employer contributions. Distribution can
only be made if the Participant is 100% vested.
(c) A Participant who has attained the Plan's Normal Retirement Age
and who has not separated from Service [x] may [ ] may not
receive a distribution of his or her vested account balance.
NOTE: If the Participant has had the right to withdraw his or
her account balance in the past, this right may not be
taken away. Notwithstanding the above, to the contrary,
required minimum distributions will be paid. For timing
of distributions, see item 21(a) below.
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Prototype Cash or
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21. DISTRIBUTION OPTIONS
(a) Timing of Distributions:
In cases of termination for other than death, Disability or
retirement, benefits shall be paid:
[ ] (i) As soon as administratively feasible, following
the close of the valuation period during which a
distribution is requested or is otherwise
payable.
[ ] (ii) As soon as administratively feasible following
the close of the Plan Year during which a
distribution is requested or is otherwise
payable.
[X] (iii) As soon as administratively feasible, following
the date on which a distribution is requested or
is otherwise payable.
[ ] (iv) As soon as administratively feasible, after the
close of the Plan Year during which the
Participant incurs consecutive one-year Breaks
in Service.
[ ] (v) Only after the Participant has achieved the
Plan's Normal Retirement Age, or Early
Retirement Age, if applicable.
In cases of death, Disability or retirement, benefits shall be
paid:
[ ] (vi) As soon as administratively feasible, following
the close of the valuation period during which a
distribution is requested or is otherwise
payable.
[ ] (vii) As soon as administratively feasible following
the close of the Plan Year during which a
distribution is requested or is otherwise
payable.
[X] (viii) As soon as administratively feasible, following
the date on which a distribution is requested or
is otherwise payable.
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Prototype Cash or
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Sharing Plan #002
(b) Optional Forms of Payment:
[x] (i) Lump Sum.
[x] (ii) Installment Payments.
[ ] (iii) Life Annuity*.
[ ] (iv) Life Annuity Term Certain*.
Life Annuity with payments guaranteed for years
(not to exceed 20 years, specify all
applicable).
[ ] (v) Joint and [ ] 50%, [ ] 66-2/3%, [ ] 75% or [ ]
100% survivor annuity* (specify all applicable).
[ ] (vi) Other form(s) specified: _______________________
*Not available in Plan meeting provisions of paragraph 8.7 of
Basic Plan Document #04.
(c) Recalculation of Life Expectancy:
In determining required distributions under the Plan,
Participants and/or their Spouse (Surviving Spouse) [ ] shall [x]
shall not have the right to have their life expectancy
recalculated annually.
If "shall",
[ ] only the Participant shall be recalculated.
[ ] both the Participant and Spouse shall be recalculated.
[ ] who is recalculated shall be determined by the Participant.
22. SPONSOR CONTACT
Employers should direct questions concerning the language contained in and
qualification of the Prototype to:
JENNIFER COORS
(Job Title) TRUST ADMINISTRATOR
(Phone Number) 513-324-6950
In the event that the Sponsor amends, discontinues or abandons this
Prototype Plan, notification will be provided to the Employer's address
provided on the first page of this Agreement.
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Prototype Cash or
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23. SIGNATURES:
Due to the significant tax ramifications, the Sponsor recommends that
before you execute this Adoption Agreement, you contact your attorney or
tax advisor, if any.
(a) EMPLOYER:
Name and address of Employer if different than specified in
Section 1 above.
This agreement and the corresponding provisions of the Plan and
Trust/Custodial Account Basic Plan Document #04 were adopted by
the Employer the 26th day of March, 1997.
Signed for the Employer by: Douglas Stewart
Title: President-CEO
Signature: /s/Douglas Stewart
The Employer understands that its failure to properly complete
the Adoption Agreement may result in disqualification of its
Plan.
Employer's Reliance: The adopting Employer may not rely on an
opinion letter issued by the National Office of the Internal
Revenue Service as evidence that the Plan is qualified under Code
Section 401. In order to obtain reliance with respect to Plan
qualification, the Employer must apply to the appropriate Key
District Office for a determination letter.
This Adoption Agreement may only be used in conjunction with
Basic Plan Document #04.
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Prototype Cash or
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Sharing Plan #002
[x] (b) TRUSTEE:
Name of Trustee:
SECURITY NATIONAL BANK AND TRUST CO.
The assets of the Fund shall be invested in accordance with
paragraph 13.3 of the Basic Plan Document #04 as a Trust. As
such, the Employer's Plan as contained herein was accepted by the
Trustee the 26th day of March, 1997.
Signed for the Trustee by: JENNIFER COORS
Title: TRUST ADMINISTRATOR
Signature: /s/Jennifer Coors, Trust Administrator
[ ] (c) CUSTODIAN:
Name of Custodian:
The assets of the Fund shall be invested in accordance with
paragraph 13.4 of the Basic Plan Document #04 as a Custodial
Account. As such, the Employer's Plan as contained herein was
accepted by the Custodian the ___day of _________, 19__ .
Signed for the Custodian by:
Title:
Signature:
(d) SPONSOR:
The Employer's Agreement and the corresponding provisions of the
Plan and Trust/Custodial Account Basic Plan Document #04 were
accepted by the Sponsor the 26th day of March, 1997.
Signed for the Sponsor by: JENNIFER COORS
Title: TRUST ADMINISTRATOR
Signature: /s/Jennifer Coors
30
EXHIBIT 5
<PAGE>
October 6, 1997
Board of Directors
Peoples-Sidney Financial Corp.
101 E. Court Street
Sidney, Ohio 45365
Members of the Board:
We have acted as counsel to Peoples-Sidney Financial Corp. (the
"Company") in connection with the preparation and filing with the Securities and
Exchange Commission of a registration statement on Form S-8 under the Securities
Act of 1933 (the "Registration Statement") relating to 23,000 shares of the
Company's Common Stock, par value $.01 per share (the "Common Stock"), to be
offered pursuant to the Peoples Federal Savings & Loan Association of Sidney
401(k) Retirement Plan (the "Plan"), and related interests in the Plan.
In this connection, we have reviewed originals or copies, certified or
otherwise identified to our satisfaction, of the Company's Certificate of
Incorporation, Bylaws, resolutions of its Board of Directors and such other
documents and corporate records as we deem appropriate for the purpose of
rendering this opinion.
Based upon the foregoing, it is our opinion that the shares of Common
Stock to be offered by the Company will be, when and if issued, sold and paid
for as contemplated by the Plan, legally issued, fully paid and non-assessable
shares of Common Stock of the Company.
We hereby consent to the inclusion of our opinion as Exhibit 5 of this
Registration Statement. In giving this consent, we do not admit that we are
within the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
/s/ SILVER, FREEDMAN & TAFF, L.L.P.
-----------------------------------
SILVER, FREEDMAN & TAFF, L.L.P.
EXHIBIT 23.2
<PAGE>
ACCOUNTANTS' CONSENT
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of Peoples-Sidney Financial Corporation, for Peoples Federal Savings &
Loan Association of Sidney 401(k) Retirement Plan of our report dated July 11,
1997 on the consolidated financial statements of Peoples-Sidney Financial
Corporation as of June 30, 1997 and 1996 and for each of the three years in the
period ended June 30, 1997, which report is included in and incorporated by
reference in the Annual Report on Form 10-KSB of Peoples-Sidney Financial
Corporation for the year ended June 30, 1997.
/s/ Crowe, Chizek and Company LLP
---------------------------------
Crowe, Chizek and Company LLP
Columbus, Ohio
October 6, 1997
