As filed with the Securities
and Exchange Commission on
January 31, 2000 Registration No. 333-_____________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CTB INTERNATIONAL CORP.
(Exact name of registrant as specified in its charter)
INDIANA 35-1970751
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification
No.)
STATE ROAD 15 NORTH
P.O. BOX 2000
MILFORD, INDIANA 46542-2000
(Address of Principal (Zip Code)
Executive Offices)
CTB, INC. PROFIT SHARING PLAN
(Full title of the plan)
MICHAEL J. KISSANE
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
STATE ROAD 15 NORTH
P.O. BOX 2000
MILFORD, INDIANA 46542-2000
(Name and address of agent for service)
(219) 658-4191
(Telephone number, including area code,
of agent for service)
COPY TO:
JAMES A. ASCHLEMAN
BAKER & DANIELS
300 NORTH MERIDIAN STREET, SUITE 2700
INDIANAPOLIS, INDIANA 46204
(317) 237-0300
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Amount to Proposed maximum Proposed Amount of
Securities be offering price per maximum registration
to be registered share (2) aggregate fee
registered (1) offering
price (2)
<S> <C> <C> <C> <C>
Common 2,000,000 $6.5938 $13,187,600 $3,481.53
Stock, shares
$0.01 par
value
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act
of 1933 (the "Securities Act"), this Registration Statement
also covers an indeterminate amount of interests to be offered
or sold pursuant to the employee benefit plan described herein.
Pursuant to Rule 457(h)(2) under the Securities Act, no
separate fee is required to register such interests.
(2) Estimated solely for purposes of calculating the registration
fee and computed in accordance with Rule 457(c) and (h) under
the Securities Act using the average of the high and low sale
prices of the Common Stock as reported by the NASDAQ National
Market System on January 24, 2000, which was $6.5938 per share.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL
INFORMATION*
*Information required by Part I of Form S-8 to be contained in
the Section 10(a) Prospectus is omitted from this Registration
Statement in accordance with Rule 428 under the Securities Act and
the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by CTB International
Corp. (the "Registrant") with the Securities and Exchange Commission
are incorporated by reference in this Registration Statement:
(1) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1998;
(2) The CTB, Inc. Profit Sharing Plan's Annual Report on Form
11-K for the fiscal year ended December 31, 1998;
(3) The Registrant's Current Report on Form 8-K dated February
10, 1999;
(4) The Registrant's Current Report on Form 8-K dated September
21, 1999;
(5) The Registrant's Quarterly Reports on Forms 10-Q for the
three months ended March 31, 1999, June 30, 1999 and
September 30, 1999; and
(6) The description of the Registrant's Common Stock contained
in the Registrant's Registration Statement on Form S-1
(Registration No. 333-29873) filed with the Securities and
Exchange Commission on August 11, 1997, including any
amendment or report filed for the purpose of updating such
description.
In addition, all documents subsequently filed by the Registrant
or the CTB, Inc. Profit Sharing Plan (the "Plan") pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment which indicates that all securities offered
hereby have been sold or which deregisters all securities offered
hereby then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof
from their respective dates of filing.
The Registrant will promptly provide without charge to each
person to whom a prospectus is delivered a copy of any or all
information that has been incorporated herein by reference (not
including exhibits to the information that is incorporated by
reference unless such exhibits are specifically incorporated by
reference into such information) upon the written or oral request of
such person directed to the Secretary of the Registrant at its
principal offices, State Road 15 North, P.O. Box 2000, Milford, IN
46542, telephone (219) 658-4191.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The following is a summary of the general effect of the
indemnification provisions of the Registrant's Restated Articles of
Incorporation and of the indemnification provided for under Indiana
law. All statements made herein, which are only intended to
summarize the above-referenced provisions, are qualified in their
entirety by reference to the Registrant's Restated Articles of
Incorporation and the Indiana Business Corporation Law (the "IBCL").
The Restated Articles of Incorporation of the Registrant
provide for the mandatory indemnification, to the extent not
inconsistent with applicable law, of an individual who is or was a
director, officer, employee or agent of the Registrant (or who is or
was serving at the request of the Registrant as such for, or as a
manager or fiduciary for, another entity, including an employee
benefit plan) ("Eligible Person"), against reasonable expenses,
counsel fees, judgments, settlements, fines and penalties (including
excise taxes assessed with respect to an employee benefit plan) that
may be incurred by him in connection with or resulting from any
pending, threatened or completed claim, action, suit or proceeding
and all appeals thereof, (whether brought by or in the right of the
Registrant or any other corporation or otherwise) civil, criminal,
administrative or investigative, formal or informal, in which he may
become involved, as a party or otherwise, by reason of his being or
having been an Eligible Person, or by reason of any action taken or
not taken by him in his capacity as an Eligible Person ("Claim"), if
(i) any Claim terminates without any finding of guilt or liability
against the Eligible Person; (ii) a court approves, with knowledge
of the indemnity provided, any settlement of a Claim; (iii) a
reasonable period of time expires after a Claim is made or
threatened without the commencement of an action, suit or
proceeding, and without any payment or promise made to induce a
settlement; or (iv) the Eligible Person is determined to have acted
in good faith and in a manner he reasonably believed to be in the
best interests of the Registrant or at least not opposed to the best
interests of the Registrant (or with respect to an employee benefit
plan, if he reasonably believed he was acting in conformity with
ERISA or if he reasonably believed his actions to be in the
interests of the participants in or beneficiaries of the plan) and,
in addition, with respect to any criminal action or proceeding, he
either had reasonable cause to believe his conduct was lawful or had
no reasonable cause to believe his conduct was unlawful. The
Registrant's Restated Articles of Incorporation empower the
Registrant, under certain circumstances, to advance to an Eligible
Person expenses incurred in connection with an action, suit or
proceeding prior to the final disposition thereof. The Registrant's
Restated Articles of Incorporation also set forth the procedures to
be followed in connection with a claim for indemnification.
Under the IBCL, a corporation may indemnify any individual who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative and whether formal
or informal, by reason of the fact that he is or was a director,
officer, employee or agent of the corporation or, while a director
of a corporation, is or was serving at the request of the
corporation as a director, officer, partner, member, manager,
trustee, employee or agent of another foreign or domestic
corporation, partnership, limited liability company, joint venture,
trust, employee benefit plan or other enterprise, whether for profit
or not, against reasonable expenses (including counsel fees),
judgments, fines (including any excise tax assessed with respect to
an employee benefit plan), penalties and amounts paid in settlement
incurred by him in connection with such action, suit or proceeding
(i) if he acted in good faith, and (ii) in the case of conduct in
his official capacity with the corporation, if he reasonably
believed his conduct was in the best interests of the corporation
or, in all other cases, if he reasonably believed his conduct was at
least not opposed to the best interests of the corporation (or with
respect to an employee benefit plan, if he reasonably believed his
conduct was in the interests of the participants in and
beneficiaries of the plan), and (iii) with respect to any criminal
action or proceeding, if he had reasonable cause to believe his
conduct was lawful or had no reasonable cause to believe his conduct
was unlawful.
The IBCL further provides that a corporation shall, unless
limited by its articles of incorporation, indemnify a director or
officer who was wholly successful, on the merits or otherwise, in
the defense of any action, suit or proceeding to which he was a
party because he is or was a director or officer of the corporation
against reasonable expenses incurred by him in connection therewith.
The IBCL empowers a corporation, under certain circumstances, to
advance to an individual expenses incurred in connection with an
action, suit or proceeding prior to the final disposition thereof.
The IBCL also provides that, unless limited by the corporation's
articles of incorporation, a court of competent jurisdiction may, in
certain cases, order indemnification of a director or officer
irrespective of whether the director or officer met the standards of
conduct set forth above.
In addition, the Registrant has a directors' and officers'
liability policy that insures against certain liabilities, including
liabilities under the Securities Act, subject to applicable
retentions.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The list of Exhibits is incorporated herein by reference to the
Index to Exhibits.
The Registrant hereby undertakes that it will submit or has
submitted the Plan and any amendment thereto to the Internal Revenue
Service ("IRS") in a timely manner and has made or will make all
changes required by the IRS in order to qualify the Plan under
Section 401 of the Internal Revenue Code.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement or any material change to
such information in the Registration Statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) of
this section do not apply if the information required to be
included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to
the Commission by the Registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and
the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
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 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
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 it has reasonable grounds
to believe that it meets all of the requirements for filing on Form
S-8 and has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Milford, State of Indiana, on January 28, 2000.
CTB INTERNATIONAL CORP.
By: /S/ VICTOR A. MANCINELLI
Victor A. Mancinelli
President and Chief
Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed by the following
persons in their respective capacities and on the respective dates
indicated opposite their names. Each person whose signature appears
below hereby authorizes each of Victor A. Mancinelli and Don J.
Steinhilber, each with full power of substitution, to execute in the
name and on behalf of such person any post-effective amendment to
this Registration Statement and to file the same, with exhibits
thereto, and other documents in connection therewith, making such
changes in this Registration Statement as the registrant deems
appropriate, and appoints each of J. Christopher Chocola and Don J.
Steinhilber, each with full power of substitution, attorney-in-fact
to sign any amendment and any post-effective amendment to this
Registration Statement and to file the same, with exhibits thereto,
and other documents in connection therewith.
SIGNATURE TITLE DATE
/S/ VICTOR A. MANCINELLI President, Chief January 28, 2000
Victor A. Mancinelli Executive Officer
and Director
(Principal
Executive Officer)
/S/ DON J. STEINHILBER Vice President and January 28, 2000
Don J. Steinhilber Chief Financial
Officer (Principal
Financial Officer
and Principal
Accounting Officer)
/S/ CARYL M. CHOCOLA Director January 28, 2000
Caryl M. Chocola
/S/ MICHAEL G. FISCH Director January 28, 2000
Michael G. Fisch
/S/ LARRY D. GREENE Director January 28, 2000
Larry D. Greene
/S/ FRANK S. HERMANCE Director January 28, 2000
Frank S. Hermance
/S/ DAVID L. HORING Director January 28, 2000
David L. Horing
/S/ CHARLES D. KLEIN Director January 28, 2000
Charles D. Klein
/S/ J. CHRISTOPHER CHOCOLA Director January 28, 2000
J. Christopher Chocola
/S/ GERARD VAN ROOIJEN Director January 28, 2000
Gerard van Rooijen
<PAGE>
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 Milford,
State of Indiana on January 28, 2000.
CTB, INC. PROFIT SHARING PLAN
By: CTB, Inc. Profit
Sharing Committee
/S/ DON J. STEINHILBER
Don J. Steinhilber, Member
/S/ MICHAEL J. KISSANE
Michael J. Kissane, Member
/S/ MARK W. NEAL
Mark W. Neal, Member
/S/ RICHARD A. VAN PUFFELEN
Richard A. Van Puffelen, Member
<PAGE>
INDEX TO EXHIBITS
Exhibit
NO. DESCRIPTION OF EXHIBIT
4.1 Restated Articles of Incorporation of
the Registrant.
4.2 By-Laws of the Registrant.
4.3 CTB, Inc. Profit Sharing Plan.
23.1 Consent of Deloitte & Touche LLP
24 Powers of Attorney (included on the Signature
Page of the Registration Statement).
EXHIBIT 4.1
RESTATED ARTICLES OF INCORPORATION
OF
CTB INTERNATIONAL CORP.
(FORMERLY KNOWN AS CTB INDIANA CORP.)
CTB Indiana Corp., an Indiana corporation (the "Corporation"),
and the survivor of a merger with CTB International Corp., a
Delaware corporation, effected pursuant to a Plan and Agreement of
Merger dated September 21, 1999, desiring to amend and restate its
Articles of Incorporation pursuant to the Indiana Business
Corporation Law (the "Corporation Law") and to change its name,
submits the following Restated Articles of Incorporation:
ARTICLE I
NAME
The name of the Corporation is CTB International Corp.
ARTICLE II
PURPOSE AND POWERS
SECTION 2.1. PURPOSE OF THE CORPORATION. The purpose for
which the Corporation is formed is to engage in the transaction of
any or all lawful business for which corporations may now or
hereafter be incorporated under the Corporation Law.
SECTION 2.2. POWERS OF THE CORPORATION. The Corporation shall
have (a) all powers now or hereafter authorized by or vested in
corporations pursuant to the provisions of the Corporation Law, (b)
all powers now or hereafter vested in corporations by common law or
any other statute or act and (c) all powers authorized by or vested
in the Corporation by the provisions of these Restated Articles of
Incorporation or by the provisions of its By-Laws as from time to
time in effect.
ARTICLE III
TERM OF EXISTENCE
The period during which the Corporation shall continue is
perpetual.
ARTICLE IV
REGISTERED OFFICE AND AGENT
The street address of the Corporation's registered office at
the time of adoption of these Restated Articles of Incorporation is
State Road 15 North, Milford, Indiana 46542-2000, and the name of
its Resident Agent at such office at the time of adoption of these
Restated Articles of Incorporation is Michael J. Kissane.
ARTICLE V
AUTHORIZED SHARES
SECTION 5.1. AUTHORIZED CLASSES AND NUMBER OF SHARES. The
total number of shares of all classes of capital stock which the
Corporation shall have authority to issue is 44,000,000 shares, of
which 40,000,000 shares shall be common stock, par value $0.01 per
share ("Common Stock"), and 4,000,000 shares shall be preferred
stock, par value $0.01 per share ("Preferred Stock").
SECTION 5.2. GENERAL TERMS OF ALL SHARES. The Corporation
shall have the power to acquire (by purchase, redemption or
otherwise), hold, own, pledge, sell, transfer, assign, reissue,
cancel or otherwise dispose of the shares of the Corporation in the
manner and to the extent now or hereafter permitted by the laws of
the State of Indiana (but such power shall not imply an obligation
on the part of the owner or holder of any share to sell or otherwise
transfer such share to the Corporation), including the power to
purchase, redeem or otherwise acquire the Corporation's own shares,
directly or indirectly, and without pro rata treatment of the owners
or holders of any class or series of shares, unless, after giving
effect thereto, the Corporation would not be able to pay its debts
as they become due in the usual course of business or the
Corporation's total assets would be less than its total liabilities
(calculated without regard to any amounts that would be needed, if
the Corporation were to be dissolved at the time of the purchase,
redemption or other acquisition, to satisfy the preferential rights
upon dissolution of shareholders whose preferential rights are
superior to those of the holders of the shares of the Corporation
being purchased, redeemed or otherwise acquired, unless otherwise
expressly provided with respect to a series of Preferred Stock in
the provisions of these Restated Articles of Incorporation
describing the terms of such series). Shares of the Corporation
purchased, redeemed or otherwise acquired by it shall constitute
authorized but unissued shares, unless prior to any such purchase,
redemption or other acquisition, or within thirty (30) days
thereafter, the Board of Directors adopts a resolution providing
that such shares constitute authorized and issued but not
outstanding shares.
The Board of Directors of the Corporation may dispose of, issue
and sell shares in accordance with, and in such amounts as may be
permitted by, the laws of the State of Indiana and the provisions of
these Restated Articles of Incorporation and for such consideration,
at such price or prices, at such time or times and upon such terms
and conditions (including the privilege of selectively repurchasing
the same) as the Board of Directors of the Corporation shall
determine, without the authorization or approval by any shareholders
of the Corporation. Shares may be disposed of, issued and sold to
such persons, firms or entities as the Board of Directors may
determine, without any preemptive or other right on the part of the
owners or holders of other shares of the Corporation of any class or
kind to acquire such shares by reason of their ownership of such
other shares.
When the Corporation receives the consideration specified in a
subscription agreement entered into before incorporation, or for
which the Board of Directors authorized the issuance of shares, as
the case may be, the shares issued therefor shall be fully paid and
nonassessable.
The Corporation shall have the power to declare and pay
dividends or other distributions upon the issued and outstanding
shares of the Corporation, subject to the limitation that a dividend
or other distribution may not be made if, after giving it effect,
the Corporation would not be able to pay its debts as they become
due in the usual course of business or the Corporation's total
assets would be less than its total liabilities (calculated without
regard to any amounts that would be needed, if the Corporation were
to be dissolved at the time of the dividend or other distribution,
to satisfy the preferential rights upon dissolution of shareholders
whose preferential rights are superior to those of the holders of
shares receiving the dividend or other distribution, unless
otherwise expressly provided with respect to a series of Preferred
Stock in the provisions of these Restated Articles of Incorporation
describing the terms of such series). The Corporation shall have
the power to issue shares of one class or series as a share dividend
or other distribution in respect of that class or series or one or
more other classes or series.
SECTION 5.3. VOTING RIGHTS OF SHARES.
(a) COMMON STOCK. Except as otherwise provided by the
Corporation Law and subject to such shareholder disclosure and
recognition procedures (which may include voting prohibition
sanctions) as the Corporation may by action of its Board of
Directors establish, the Common Stock has unlimited voting rights
and, when validly issued by the Corporation, each outstanding share
of Common Stock shall entitle the record holder thereof to one vote
at all shareholders' meetings on all matters submitted to a vote of
the shareholders of the Corporation.
(b) PREFERRED STOCK. Except as required by the Corporation
Law or by the provisions of these Restated Articles of Incorporation
describing the terms of the Preferred Stock or a series thereof, the
holders of Preferred Stock shall have no voting rights or powers.
When validly issued by the Corporation, shares of Preferred Stock
shall entitle the record holder thereof to vote as and on such
matters, but only as and on such matters, as the holders thereof are
entitled to vote under the Corporation Law or under the provisions
of these Restated Articles of Incorporation describing the terms of
the Preferred Stock or a series thereof (which provisions may
provide for special, conditional, limited or unlimited voting
rights, including multiple or fractional votes per share, or for no
right to vote, except to the extent required by the Corporation Law)
and subject to such shareholder disclosure and recognition
procedures (which may include voting prohibition sanctions) as the
Corporation may by action of the Board of Directors establish.
SECTION 5.4. OTHER TERMS OF COMMON STOCK. The shares of
Common Stock shall be equal in every respect insofar as their
relationship to the Corporation is concerned, but such equality of
rights shall not imply equality of treatment as to redemption or
other acquisition of shares by the Corporation. Subject to the
rights of the holders of any outstanding Preferred Stock, the
holders of Common Stock shall be entitled to share ratably in such
dividends or other distributions (other than purchases, redemptions
or other acquisitions of shares by the Corporation), if any, as are
declared and paid from time to time on the Common Stock at the
discretion of the Board of Directors. In the event of any
liquidation, dissolution or winding up of the Corporation, either
voluntary or involuntary, after payment shall have been made to the
holders of the Preferred Stock of the full amount to which they
shall be entitled under this Article V, the holders of Common Stock
shall be entitled, to the exclusion of the holders of the Preferred
Stock of any and all series, to share, ratably according to the
number of shares of Common Stock held by them, in all remaining
assets of the Corporation available for distribution to its
shareholders.
SECTION 5.5. OTHER TERMS OF PREFERRED STOCK.
(a) Preferred Stock may be issued from time to time in one or
more series, each such series to have such distinctive designation
and such preferences, limitations and relative voting and other
rights as shall be set forth in these Restated Articles of
Incorporation. Subject to the requirements of the Corporation Law
and subject to all other provisions of these Restated Articles of
Incorporation, the Board of Directors of the Corporation may create
one or more series of Preferred Stock and may determine the
preferences, limitations and relative voting and other rights of one
or more series of Preferred Stock before the issuance of any shares
of that series by the adoption of an amendment to these Restated
Articles of Incorporation that specifies the terms of the series of
Preferred Stock. All shares of a series of Preferred Stock must
have preferences, limitations and relative voting and other rights
identical with those of other shares of the same series and, if the
description of the series set forth in these Restated Articles of
Incorporation so provides, no series of Preferred Stock need have
preferences, limitations or relative voting or other rights
identical with those of any other series of Preferred Stock.
Before issuing any shares of a series of Preferred Stock (in
addition to the series authorized at the time of adoption of these
Restated Articles of Incorporation), the Board of Directors shall
adopt an amendment to these Restated Articles of Incorporation,
which shall be effective without any shareholder approval or other
action, that sets forth the preferences, limitations and relative
voting and other rights of the series, and authority is hereby
expressly vested in the Board of Directors by such amendment:
(1) To fix the distinctive designation of such series and
the number of shares which shall constitute such series,
which number may be increased or decreased (but not below
the number of shares thereof then outstanding) from time
to time by action of the Board of Directors;
(2) To fix the voting rights of such series, which may
consist of special, conditional, limited or unlimited
voting rights, including multiple or fractional votes per
share, or no right to vote (except to the extent required
by the Corporation Law);
(3) To fix the dividend or distribution rights of such
series and the manner of calculating the amount and time
for payment of dividends or distributions, including, but
not limited to:
(A) the dividend rate, if any, of such series;
(B) any limitations, restrictions or conditions
on the payment of dividends or other
distributions, including whether dividends or
other distributions shall be noncumulative or
cumulative or partially cumulative and, if so,
from which date or dates;
(C) the relative rights of priority, if any, of
payment of dividends or other distributions on
shares of that series in relation to Common
Stock and shares of any other series of
Preferred Stock; and
(D) the form of dividends or other
distributions, which may be payable at the
option of the Corporation, the shareholder or
another person (and in such case to prescribe
the terms and conditions of exercising such
option), or upon the occurrence of a designated
event in cash, indebtedness, stock or other
securities or other property, or in any
combination thereof,
and to make provisions, in the case of dividends or other
distributions payable in stock or other securities, for
adjustment of the dividend or distribution rate in such
events as the Board of Directors shall determine;
(4) To fix the price or prices at which, and the terms and
conditions on which, the shares of such series may be
redeemed or converted, which may be
(A) at the option of the Corporation, the
shareholder or another person or upon the
occurrence of a designated event;
(B) for cash, indebtedness, securities or other
property or any combination thereof; and
(C) in a designated amount or in an amount
determined in accordance with a designated
formula or by reference to extrinsic data or
events;
(5) To fix the amount or amounts payable upon the shares
of such series in the event of any liquidation,
dissolution or winding up of the Corporation and the
relative rights of priority, if any, of payment upon
shares of such series in relation to shares of Common
Stock and shares of any other series of Preferred Stock;
and to determine whether or not any such preferential
rights upon dissolution need be considered in determining
whether or not the Corporation may make dividends,
repurchases or other distributions;
(6) To determine whether or not the shares of such series
shall be entitled to the benefit of a sinking fund to be
applied to the purchase or redemption of such series and,
if so entitled, the amount of such fund and the manner of
its application;
(7) To determine whether or not the issue of any
additional shares of such series or of any other series in
addition to such series shall be subject to restrictions
in addition to restrictions, if any, on the issue of
additional shares imposed in the provisions of these
Restated Articles of Incorporation fixing the terms of any
outstanding series of Preferred Stock and, if subject to
additional restrictions, the extent of such additional
restrictions; and
(8) Generally to fix the other preferences or rights, and
any qualifications, limitations or restrictions of such
preferences or rights, of such series to the full extent
permitted by the Corporation Law; provided, however, that
no such preferences, rights, qualifications, limitations
or restrictions shall be in conflict with these Restated
Articles of Incorporation or any amendment hereof.
(b) Shares of Preferred Stock of any series that have been
redeemed (whether through the operation of a sinking fund or
otherwise) or purchased by the Corporation, or which, if
convertible, have been converted into shares of the Corporation of
any other class or series, may be reissued as a part of such series
or of any other series of Preferred Stock, subject to such
limitations (if any) as may be specified or provided for in the
provisions of these Restated Articles of Incorporation describing
the terms of any series of Preferred Stock.
SECTION 5.6. TERMS OF THE 6% SERIES A PREFERRED STOCK. Thirty
thousand (30,000) shares of Preferred Stock are hereby designated
"6% Series A Preferred Stock." The powers, designations,
preferences and relative participating, optional and other special
rights, and the qualifications, limitations or restrictions of the
6% Series A Preferred Stock, in addition to those set forth in these
Restated Articles of Incorporation that are applicable to shares of
Preferred Stock of all series, are as follows:
(a) RANK. The 6% Series A Preferred Stock shall, with respect
to dividend rights, rights on redemption and rights on liquidation,
winding up and dissolution, rank prior to all classes of Common
Stock of the Corporation. All of such equity securities of the
Corporation to which the 6% Series A Preferred Stock ranks prior are
collectively referred to herein as the "Junior Stock."
(b) DIVIDENDS.
(1) The holders of 6% Series A Preferred Stock shall be
entitled to receive in preference to the holders of any of
the Junior Stock, out of any funds legally available for
the payment of dividends, noncumulative dividends at the
rate of $60.00 in cash for each share of 6% Series A
Preferred Stock held (determined by multiplying 6% by the
Liquidation Preference, as defined in Section 5.6(c)) per
fiscal year of the Corporation. The rights to such
dividends on the 6% Series A Preferred Stock shall not be
cumulative, and no rights shall accrue to holders of 6%
Series A Preferred Stock by reason of the fact that
dividends on said shares are not declared in any previous
dividend period, nor shall any undeclared or unpaid
dividends bear or accrue interest.
(2) All dividends paid with respect to shares of the 6%
Series A Preferred Stock pursuant to Section 5.6(b)(1)
shall be paid pro rata to the holders entitled thereto.
(3) Holders of shares of the 6% Series A Preferred Stock
shall be entitled to receive the dividends provided for in
Section 5.6(b)(1) in preference to and in priority over
any dividends upon any of the Junior Stock.
(4) Each fractional share of 6% Series A Preferred Stock
outstanding shall be entitled to a ratably proportionate
amount of all dividends accruing with respect to each
outstanding share of 6% Series A Preferred Stock pursuant
to Section 5.6(b)(1).
(c) LIQUIDATION PREFERENCE. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of
the Corporation, the holders of shares of 6% Series A Preferred
Stock then outstanding shall be entitled to be paid out of the
assets of the Corporation available for distribution to its
stockholders an amount equal to $1,000.00 for each share outstanding
(the "Liquidation Preference"), plus an amount equal to all declared
but unpaid dividends thereon to the date fixed for liquidation,
dissolution or winding up before any payment shall be made or any
assets distributed to the holders of any of the Junior Stock.
Except as provided in the preceding sentence, holders of 6% Series A
Preferred Stock shall not be entitled to any distribution in the
event of liquidation, dissolution or winding up of the affairs of
the Corporation. If the assets of the Corporation are not
sufficient to pay in full the liquidation payments payable to the
holders of outstanding shares of 6% Series A Preferred Stock, then
the holders of all such shares shall share ratably in accordance
with the respective amounts to which the holders of outstanding
shares of 6% Series A Preferred Stock would be entitled if all
amounts payable thereon were paid in full.
The liquidation payment with respect to each outstanding
fractional share of 6% Series A Preferred Stock shall be equal to a
ratably proportionate amount of the liquidation payment with respect
to each outstanding share of the 6% Series A Preferred Stock.
(d) REDEMPTION. Upon the occurrence of an Initial Public
Offering (as defined below) or a Change of Control (as defined
below), the 6% Series A Preferred Stock shall be redeemable, at the
option of the Corporation, in whole or in part, from time to time at
a redemption price of $1,000.00 per share of the 6% Series A
Preferred Stock, plus an amount equal to all declared but unpaid
dividends thereon to the date fixed for redemption. "Initial Public
Offering" shall mean the sale of shares of the Corporation's capital
stock to the public pursuant to a registration statement under the
Securities Act of 1933, as amended. "Change of Control" shall mean
any person or group of persons (within the meaning of Section 13 or
14 of the Securities Exchange Act of 1934, as amended) other than
American Securities Capital Partners, L.P. ("ASCP"), investment
funds managed by ASCP or its affiliates, J. Christopher Chocola or
Caryl M. Chocola shall have acquired beneficial ownership or control
of over 15% of the voting stock (on a fully diluted basis) of the
Corporation.
(e) PROCEDURE FOR REDEMPTION.
(1) In the event that fewer than all the outstanding
shares of 6% Series A Preferred Stock are to be redeemed,
the number of shares to be redeemed shall be determined by
the Board of Directors and the shares to be redeemed shall
be selected pro rata based upon the number of outstanding
shares of 6% Series A Preferred Stock held by each holder
thereof prior to the redemption.
(2) In the event the Corporation shall redeem shares of 6%
Series A Preferred Stock, notice of such redemption shall
be given by first class mail, postage prepaid, mailed not
less than 30 days nor more than 60 days prior to the
redemption date, to all holders of record of the shares to
be redeemed at such holder's address as the same appears
on the stock register of the Corporation. Each such
notice shall state: (i) the redemption date; (ii) the
aggregate number of shares of 6% Series A Preferred Stock
to the redeemed and, if less than all the shares held by
such holder are to be redeemed from such holder, the
number of shares to be redeemed from such holder; (iii)
the redemption price; and (iv) the place or places where
certificates for such shares are to be surrendered for
payment of the redemption price.
(3) Notice having been mailed as aforesaid, from and after
the redemption date (unless default shall be made by the
Corporation in providing money for the payment of the
redemption price of the shares called for redemption) said
shares shall no longer be deemed to be outstanding and
shall have the status of authorized but unissued shares of
6% Series A Preferred Stock, and shall not be reissued as
shares of 6% Series A Preferred Stock, and all rights of
the holders thereof as stockholders of the Corporation
(except the right to receive from the Corporation the
redemption price) shall cease. Upon surrender in
accordance with said notice of the certificates for any
shares so redeemed (properly endorsed or assigned for
transfer, if the Board shall so require and the notice
shall so state), such shares shall be redeemed by the
Corporation at the redemption price aforesaid. In the
event fewer than all of the shares represented by any such
certificate are redeemed, a new certificate shall be
issued representing the unredeemed shares without cost to
the holder thereof.
(f) VOTING RIGHTS. The holders of record of shares of 6%
Series A Preferred Stock shall not be entitled to any voting rights
except as otherwise provided by law.
ARTICLE VI
DIRECTORS
SECTION 6.1. NUMBER. The Board of Directors at the time of
adoption of these Restated Articles of Incorporation is composed of
nine (9) members, which number may be changed from time to time by
amendment to the By-Laws, provided that such number shall not be
less than one (1) or more than fifteen (15).
SECTION 6.2. QUALIFICATIONS. Directors need not be
shareholders of the Corporation or residents of this or any other
state in the United States.
SECTION 6.3. VACANCIES. Vacancies occurring in the Board of
Directors shall be filled in the manner provided in the By-Laws or,
if the By-Laws do not provide for the filling of vacancies, in the
manner provided by the Corporation Law. The By-Laws may also
provide that in certain circumstances specified therein, vacancies
occurring in the Board of Directors may be filled by vote of the
shareholders at a special meeting called for that purpose or at the
next annual meeting of shareholders.
SECTION 6.4. LIABILITY OF DIRECTORS. A Director's
responsibility to the Corporation shall be limited to discharging
his or her duties as a Director, including his or her duties as a
member of any committee of the Board of Directors upon which he or
she may serve, in good faith, with the care an ordinarily prudent
person in a like position would exercise under similar
circumstances, and in a manner the Director reasonably believes to
be in the best interests of the Corporation, all based on the facts
then known to the Director.
In discharging his or her duties, a Director is entitled to
rely on information, opinions, reports, or statements, including
financial statements and other financial data, if prepared or
presented by:
(a) One (1) or more officers or employees of the
Corporation whom the Director reasonably believes to be
reliable and competent in the matters presented;
(b) Legal counsel, public accountants or other persons as
to matters the Director reasonably believes are within
such person's professional or expert competence; or
(c) A committee of the Board of which the Director is not
a member if the Director reasonably believes the Committee
merits confidence;
but a Director is not acting in good faith if the Director has
knowledge concerning the matter in question that makes reliance
otherwise permitted by this Section 6.4 unwarranted.
A Director shall not be liable for any action taken as a
Director, or any failure to take any action, unless (a) the Director
has breached or failed to perform the duties of the Director's
office in compliance with this Section 6.4, and (b) the breach or
failure to perform constitutes willful misconduct or recklessness.
SECTION 6.5. FACTORS TO BE CONSIDERED BY BOARD. In
determining whether to take or refrain from taking any action with
respect to any matter, including making or declining to make any
recommendation to shareholders of the Corporation, the Board of
Directors may, in its discretion, consider both the short term and
long term best interests of the Corporation (including the
possibility that these interests may be best served by the continued
independence of the Corporation), taking into account, and weighing
as the Directors deem appropriate, the social and economic effects
thereof on the Corporation's present and future employees, suppliers
and customers of the Corporation and its subsidiaries, the
communities in which offices or other facilities of the Corporation
are located and any other factors the Directors consider pertinent.
SECTION 6.6. REMOVAL OF DIRECTORS. Notwithstanding any other
provisions of the Corporation Law, these Restated Articles of
Incorporation or the By-Laws of the Corporation (and notwithstanding
the fact that some lesser percentage may be specified by law, these
Restated Articles of Incorporation or the By-Laws of the
Corporation), one or more directors of the Corporation may be
removed at any time, with or without cause, by the affirmative vote
of the holders of a majority or more of the outstanding shares of
capital stock of the Corporation entitled to vote generally in the
election of directors (considered for this purpose as one class)
cast at a meeting of the shareholders called for that purpose, or by
a majority vote of the entire Board of Directors. Notwithstanding
the foregoing, and except as otherwise required by law, whenever the
holders of any one or more series of Preferred Stock shall have the
right, voting separately as a class, to elect one or more directors
of the Corporation, the provisions of this Section 6.6 shall not
apply with respect to the director or directors elected by such
holders of Preferred Stock.
SECTION 6.7. ELECTION OF DIRECTORS BY HOLDERS OF PREFERRED
STOCK. The holders of one (1) or more series of Preferred Stock may
be entitled to elect all or a specified number of Directors, but
only to the extent and subject to limitations as may be set forth in
the provisions of these Restated Articles of Incorporation adopted
by the Board of Directors pursuant to Section 5.5 hereof describing
the terms of the series of Preferred Stock.
ARTICLE VII
Provisions for Regulation of Business
AND CONDUCT OF AFFAIRS OF CORPORATION
SECTION 7.1. MEETINGS OF SHAREHOLDERS. Meetings of the
shareholders of the Corporation shall be held at such time and at
such place, either within or without the State of Indiana, as may be
stated in or fixed in accordance with the By-Laws of the Corporation
and specified in the respective notices or waivers of notice of any
such meetings.
SECTION 7.2. MEETINGS OF DIRECTORS. Meetings of the Board of
Directors of the Corporation shall be held at such place, either
within or without the State of Indiana, as may be authorized by the
By-Laws and specified in the respective notices or waivers of notice
of any such meetings or otherwise specified by the Board of
Directors. Unless the By-Laws provide otherwise (a) regular
meetings of the Board of Directors may be held without notice of the
date, time, place or purpose of the meeting and (b) the notice for a
special meeting need not describe the purpose or purposes of the
special meeting.
SECTION 7.3. ACTION WITHOUT MEETING. Any action required or
permitted to be taken at any meeting of the Board of Directors or
shareholders, or of any committee of such Board, may be taken
without a meeting, if the action is taken by all members of the
Board or all shareholders entitled to vote on the action, or by all
members of such committee, as the case may be. The action must be
evidenced by one (1) or more written consents describing the action
taken, signed by each Director, or all the shareholders entitled to
vote on the action, or by each member of such committee, as the case
may be, and, in the case of action by the Board of Directors or a
committee thereof, included in the minutes or filed with the
corporate records reflecting the action taken or, in the case of
action by the shareholders, delivered to the Corporation for
inclusion in the minutes or filing with the corporate records.
Action taken under this Section 7.3 is effective when the last
Director, shareholder or committee member, as the case may be, signs
the consent, unless the consent specifies a different prior or
subsequent effective date, in which case the action is effective on
or as of the specified date. Such consent shall have the same
effect as a unanimous vote of all members of the Board, or all
shareholders, or all members of the committee, as the case may be,
and may be described as such in any document.
SECTION 7.4. BY-LAWS. The Board of Directors shall have the
exclusive power to make, alter, amend or repeal, or to waive
provisions of, the By-Laws of the Corporation by the affirmative
vote of a majority of the entire number of Directors at the time,
except as expressly provided by the Corporation Law. All provisions
for the regulation of the business and management of the affairs of
the Corporation not stated in these Restated Articles of
Incorporation shall be stated in the By-Laws. The Board of
Directors may adopt Emergency By-Laws of the Corporation and shall
have the exclusive power (except as may otherwise be provided
therein) to make, alter, amend or repeal, or to waive provisions of,
the Emergency By-Laws by the affirmative vote of a majority of the
entire number of Directors at the time.
SECTION 7.5. INTEREST OF DIRECTORS.
(a) A conflict of interest transaction is a transaction with
the Corporation in which a Director of the Corporation has a direct
or indirect interest. A conflict of interest transaction is not
voidable by the Corporation solely because of the Director's
interest in the transaction if any one (1) of the following is true:
(1) The material facts of the transaction and the
Director's interest were disclosed or known to the Board
of Directors or a committee of the Board of Directors and
the Board of Directors or committee authorized, approved
or ratified the transaction.
(2) The material facts of the transaction and the
Director's interest were disclosed or known to the
shareholders entitled to vote and they authorized,
approved or ratified the transaction.
(3) The transaction was fair to the Corporation.
(b) For purposes of this Section 7.5, a Director of the
Corporation has an indirect interest in a transaction if:
(1) Another entity in which the Director has a material
financial interest or in which the Director is a general
partner is a party to the transaction; or
(2) Another entity of which the Director is a director,
officer, manager or trustee is a party to the transaction
and the transaction is, or is required to be, considered
by the Board of Directors of the Corporation.
(c) For purposes of Section 7.5(a)(1), a conflict of interest
transaction is authorized, approved or ratified if it receives the
affirmative vote of a majority of the Directors on the Board of
Directors (or on the committee) who have no direct or indirect
interest in the transaction, but a transaction may not be
authorized, approved or ratified under this section by a single
Director. If a majority of the Directors who have no direct or
indirect interest in the transaction vote to authorize, approve or
ratify the transaction, a quorum shall be deemed present for the
purpose of taking action under this Section 7.5. The presence of,
or a vote cast by, a Director with a direct or indirect interest in
the transaction does not affect the validity of any action taken
under Section 7.5(a)(1), if the transaction is otherwise authorized,
approved or ratified as provided in such subsection.
(d) For purposes of Section 7.5(a)(2), a conflict of interest
transaction is authorized, approved or ratified if it receives the
affirmative vote of the holders of shares representing a majority of
the votes entitled to be cast. Shares owned by or voted under the
control of a Director who has a direct or indirect interest in the
transaction, and shares owned by or voted under the control of an
entity described in Section 7.5(b), may be counted in such a vote of
shareholders.
SECTION 7.6. NONLIABILITY OF SHAREHOLDERS. Shareholders of
the Corporation are not personally liable for the acts or debts of
the Corporation, nor is private property of shareholders subject to
the payment of corporate debts.
SECTION 7.7. INDEMNIFICATION OF OFFICERS, DIRECTORS, AND OTHER
ELIGIBLE PERSONS.
(a) To the extent not inconsistent with applicable law, every
Eligible Person shall be indemnified by the Corporation against all
Liability and reasonable Expense that may be incurred by him in
connection with or resulting from any Claim, (1) if such Eligible
Person is Wholly Successful with respect to the Claim, or (2) if not
Wholly Successful, then if such Eligible Person is determined, as
provided in either Section 7.7(f) or 7.7(g), to have acted in good
faith, in what he reasonably believed to be the best interests of
the Corporation or at least not opposed to its best interests and,
in addition, with respect to any criminal claim is determined to
have had reasonable cause to believe that his conduct was lawful or
had no reasonable cause to believe that his conduct was unlawful.
The termination of any Claim, by judgment, order, settlement
(whether with or without court approval) or conviction or upon a
plea of guilty or of nolo contendere, or its equivalent, shall not
create a presumption that an Eligible Person did not meet the
standards of conduct set forth in clause (2) of this subsection (a).
The actions of an Eligible Person with respect to an employee
benefit plan subject to the Employee Retirement Income Security Act
of 1974 shall be deemed to have been taken in what the Eligible
Person reasonably believed to be the best interests of the
Corporation or at least not opposed to its best interests if the
Eligible Person reasonably believed he was acting in conformity with
the requirements of such Act or he reasonably believed his actions
to be in the interests of the participants in or beneficiaries of
the plan.
(b) The term "Claim" as used in this Section 7.7 shall include
every pending, threatened or completed claim, action, suit or
proceeding and all appeals thereof (whether brought by or in the
right of this Corporation or any other corporation or otherwise),
civil, criminal, administrative or investigative, formal or
informal, in which an Eligible Person may become involved, as a
party or otherwise:
(1) by reason of his being or having been an Eligible
Person, or
(2) by reason of any action taken or not taken by him in
his capacity as an Eligible Person, whether or not he
continued in such capacity at the time such Liability or
Expense shall have been incurred.
(c) The term "Eligible Person" as used in this Section 7.7
shall mean every person (and the estate, heirs and personal
representatives of such person) who is or was a Director, officer,
employee, or agent of the Corporation or is or was serving at the
request of the Corporation as a Director, officer, employee, agent,
manager or fiduciary of another foreign or domestic corporation,
partnership, limited liability company, joint venture, trust,
employee benefit plan or other organization or entity, whether for
profit or not. An Eligible Person shall also be considered to have
been serving an employee benefit plan at the request of the
Corporation if his duties to the Corporation also imposed duties on,
or otherwise involved services by, him to the plan or to
participants in or beneficiaries of the plan.
(d) The terms "Liability" and "Expense" as used in this
Section 7.7 shall include, but shall not be limited to, counsel fees
and disbursements and amounts of judgments, fines or penalties
against (including excise taxes assessed with respect to an employee
benefit plan), and amounts paid in settlement by or on behalf of, an
Eligible Person.
(e) The term "Wholly Successful" as used in this Section 7.7
shall mean (1) termination of any claim against the Eligible Person
in question without any finding of liability or guilt against him,
(2) approval by a court, with knowledge of the indemnity herein
provided, of a settlement of any Claim, or (3) the expiration of a
reasonable period of time after the making or threatened making of
any Claim without commencement of an action, suit or proceeding,
without any payment or promise made to induce a settlement.
(f) Every Eligible Person claiming indemnification hereunder
(other than one who has been Wholly Successful with respect to any
Claim) shall be entitled to indemnification (1) if special
independent legal counsel, which may be regular counsel of the
Corporation or other disinterested person or persons, in either case
selected by the Board of Directors, whether or not a disinterested
quorum exists (such counsel or person or persons being hereinafter
called the "Referee"), shall deliver to the Corporation a written
finding that such Eligible Person has met the standards of conduct
set forth in Section 7.7(a)(2), and (2) if the Board of Directors,
acting upon such written finding, so determines. The Board of
Directors shall, if an Eligible Person is found to be entitled to
indemnification pursuant to the preceding sentence, also determine
the reasonableness of the Eligible Person's Expenses. The Eligible
Person claiming indemnification shall, if requested, appear before
the Referee, answer questions that the Referee deems relevant and
shall be given ample opportunity to present to the Referee evidence
upon which he relies for indemnification. The Corporation shall, at
the request of the Referee, make available facts, opinions or other
evidence in any way relevant to the Referee's findings that are
within the possession or control of the Corporation.
(g) If an Eligible Person claiming indemnification pursuant to
Section 7.7(f) is found not to be entitled thereto, or if the Board
of Directors fails to select a Referee under Section 7.7(f) within a
reasonable amount of time following a written request of an Eligible
Person for the selection of a Referee, or if the Referee or the
Board of Directors fails to make a determination under Section
7.7(f) within a reasonable amount of time following the selection of
a Referee, the Eligible Person may apply for indemnification with
respect to a Claim to a court of competent jurisdiction, including a
court in which the Claim is pending against the Eligible Person. On
receipt of an application, the court, after giving notice to the
Corporation and giving the Corporation ample opportunity to present
to the court any information or evidence relating to the claim for
indemnification that the Corporation deems appropriate, may order
indemnification if it determines that the Eligible Person is
entitled to indemnification with respect to the Claim because such
Eligible Person met the standards of conduct set forth in Section
7.7(a)(2). If the court determines that the Eligible Person is
entitled to indemnification, the court shall also determine the
reasonableness of the Eligible Person's Expenses.
(h) The rights of indemnification provided in this Section 7.7
shall be in addition to any rights to which any Eligible Person may
otherwise be entitled. Irrespective of the provisions of this
Section 7.7, the Board of Directors may, at any time and from time
to time, (1) approve indemnification of any Eligible Person to the
full extent permitted by the provisions of applicable law at the
time in effect, whether on account of past or future transactions,
and (2) authorize the Corporation to purchase and maintain insurance
on behalf of any Eligible Person against any Liability asserted
against him and incurred by him in any such capacity, or arising out
of his status as such, whether or not the Corporation would have the
power to indemnify him against such Liability or Expense.
(i) Expenses incurred by an Eligible Person with respect to
any Claim may be advanced by the Corporation (by action of the Board
of Directors, whether or not a disinterested quorum exists) prior to
the final disposition thereof upon receipt of an undertaking by or
on behalf of the Eligible Person to repay such amount if he is
determined not to be entitled to indemnification.
(j) The provisions of this Section 7.7 shall be deemed to be a
contract between the Corporation and each Eligible Person, and an
Eligible Person's rights hereunder shall not be diminished or
otherwise adversely affected by any repeal, amendment or
modification of this Section 7.7 that occurs subsequent to such
person becoming an Eligible Person.
(k) The provisions of this Section 7.7 shall be applicable to
Claims made or commenced after the adoption hereof, whether arising
from acts or omissions to act occurring before or after the adoption
hereof.
ARTICLE VIII
APPROVAL OF BUSINESS COMBINATIONS
SECTION 8.1. SUPERMAJORITY VOTE.
(a) The Corporation shall not engage in any business
combination with any interested shareholder for a period of three
(3) years following the time that such shareholder became an
interested shareholder, unless:
(1) Prior to such time the Board of Directors of the
Corporation approved either the business combination or
the transaction which resulted in the shareholder becoming
an interested shareholder;
(2) Upon consummation of the transaction which resulted in
the shareholder becoming an interested shareholder, the
interested shareholder owned voting stock of the
Corporation representing at least 85% of the votes
entitled to be cast by all voting stock of the Corporation
outstanding at the time the transaction commenced,
excluding for purposes of determining the number of shares
outstanding those shares owned (i) by persons who are
directors and also officers of the Corporation and (ii)
employee stock plans of the Corporation or any of its
majority-owned subsidiaries in which employee participants
do not have the right to determine confidentially whether
shares held subject to the plan will be tendered in a
tender or exchange offer; or
(3) At or subsequent to such time, the business
combination is approved by the Board of Directors of the
Corporation and authorized at an annual or special meeting
of shareholders, and not by written consent, by the
affirmative vote of at least sixty-six and two-thirds
percent (66 2/3 %) of the votes entitled to be cast by
the outstanding voting stock which is not owned by the
interested shareholder.
(b) The restrictions contained in subsection 8.01(a) shall not
apply if:
(1) A shareholder becomes an interested shareholder
inadvertently and (i) as soon as practicable divests
itself of ownership of sufficient shares so that the
shareholder ceases to be an interested shareholder; and
(ii) would not, at any time within the 3-year period
immediately prior to a business combination between the
Corporation and such shareholder, have been an interested
shareholder but for the inadvertent acquisition of
ownership;
(2) The business combination is proposed prior to the
consummation or abandonment of and subsequent to the
earlier of the public announcement or the notice required
under this paragraph (2) of a proposed transaction which
(i) constitutes one of the transactions described in the
second sentence of this paragraph (2); (ii) is with or by
a person who either was not an interested shareholder
during the previous three (3) years or who became an
interested shareholder with the approval of the
Corporation's Board of Directors; and (iii) is approved or
not opposed by a majority of the members of the Board of
Directors then in office (but not less than one) who were
directors of the Corporation prior to any person becoming
an interested shareholder during the previous three (3)
years or were recommended for election or elected to
succeed such directors by a majority of such directors.
The proposed transactions referred to in the preceding
sentence are limited to (x) a merger or consolidation of
the corporation (except for a merger in respect of which,
pursuant to IC 23-1-40-3(g) of the Corporation Law, no
vote of the shareholders of the Corporation is required);
(y) a sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of
transactions), whether as part of a dissolution or
otherwise, of assets of the Corporation or of any direct
or indirect majority-owned subsidiary of the Corporation
(other than to any direct or indirect wholly-owned
subsidiary or to the Corporation) having an aggregate
market value equal to 50% or more of either the aggregate
market value of all of the assets of the Corporation
determined on a consolidated basis or the aggregate market
value of all the outstanding stock of the Corporation; or
(z) a proposed tender or exchange offer for 50% or more of
the outstanding voting stock of the Corporation. The
Corporation shall give not less than 20 days' notice to
all interested shareholders prior to the consummation of
any of the transactions described in clause (x) or (y) of
the second sentence of this paragraph (2).
(c) As used in this Section 8.01 only, the term:
(1) "Affiliate" means a person that directly, or
indirectly through one or more intermediaries, controls,
or is controlled by, or is under common control with,
another person.
(2) "Associate," when used to indicate a relationship with
any person, means: (i) any corporation, partnership,
limited liability company or other entity of which such
person is a director, officer or partner or is, directly
or indirectly, the owner of 20% or more of any class of
voting stock; (ii) any trust or other estate in which such
person has at least a 20% beneficial interest or as to
which such person serves as trustee or in a similar
fiduciary capacity; and (iii) any relative or spouse of
such person, or any relative of such spouse, who has the
same residence as such person.
(3) "Business combination," means: (i) any merger or
consolidation of the Corporation or any direct or indirect
majority-owned subsidiary of the Corporation with (A) the
interested shareholder, or (B) with any other corporation,
partnership, limited liability company or other entity if
the merger or consolidation is caused by the interested
shareholder and as a result of such merger or
consolidation subsection (a) of this Section 8.01 is not
applicable to the surviving entity; (ii) any sale, lease,
exchange, mortgage, pledge, transfer or other disposition
(in one transaction or a series of transactions), except
proportionately as a shareholder of the Corporation, to or
with the interested shareholder, whether as part of a
dissolution or otherwise, of assets of the Corporation or
of any direct or indirect majority-owned subsidiary of the
Corporation which assets have an aggregate market value
equal to 10% or more of either the aggregate market value
of all the assets of the Corporation determined on a
consolidated basis or the aggregate market value of all
the outstanding stock of the Corporation; (iii) any
transaction which results in the issuance or transfer by
the Corporation or by any direct or indirect majority-
owned subsidiary of the Corporation of any stock of the
Corporation or of such subsidiary to the interested
shareholder, except: (A) pursuant to the exercise,
exchange or conversion of securities exercisable for,
exchangeable for or convertible into stock of the
Corporation or any such subsidiary which securities were
outstanding prior to the time that the interested
shareholder became such; (B) pursuant to a merger under IC
23-1-40-4 of the Corporation Law; (C) pursuant to a
dividend or distribution paid or made, or the exercise,
exchange or conversion of securities exercisable for,
exchangeable for or convertible into stock of the
Corporation or any such subsidiary which security is
distributed, pro rata to all holders of a class or series
of stock of the Corporation subsequent to the time the
interested shareholder became such; (D) pursuant to an
exchange offer by the corporation to purchase stock made
on the same terms to all holders of said stock; or (E) any
issuance or transfer of stock by the Corporation; provided
however, that in no case under items (C)-(E) of this
subparagraph shall there be an increase in the interested
shareholder's proportionate share of the stock of any
class or series of the Corporation or of the voting stock
of the Corporation; (iv) any transaction involving the
Corporation or any direct or indirect majority-owned
subsidiary of the Corporation which has the effect,
directly or indirectly, of increasing the proportionate
share of the stock of any class or series, or securities
convertible into the stock of any class or series, of the
Corporation or of any such subsidiary which is owned by
the interested shareholder, except as a result of
immaterial changes due to fractional share adjustments or
as a result of any purchase or redemption of any shares of
stock not caused, directly or indirectly, by the
interested shareholder; or (v) any receipt by the
interested shareholder of the benefit, directly or
indirectly (except proportionately as a shareholder of the
Corporation), of any loans, advances, guarantees, pledges
or other financial benefits (other than those expressly
permitted in subparagraphs (i)-(iv) of this paragraph)
provided by or through the Corporation or any direct or
indirect majority-owned subsidiary.
(4) "Control," including the terms "controlling,"
"controlled by" and "under common control with," means
the possession, directly or indirectly, of the power to
direct or cause the direction of the management and
policies of a person, whether through the ownership of
voting stock, by contract or otherwise. A person who is
the owner of 20% or more of the outstanding voting stock
of any corporation, partnership, limited liability company
or other entity shall be presumed to have control of such
entity, in the absence of proof by a preponderance of the
evidence to the contrary. Notwithstanding the foregoing,
a presumption of control shall not apply where such person
holds voting stock, in good faith and not for the purpose
of circumventing this section, as an agent, bank, broker,
nominee, custodian or trustee for one or more owners who
do not individually or as a group have control of such
entity.
(5) "Interested shareholder" means any person (other than
the Corporation and any direct or indirect majority-owned
subsidiary of the Corporation) that (i) is the owner of
15% or more of the outstanding voting stock of the
Corporation, or (ii) is an affiliate or associate of the
Corporation and was the owner of 15% or more of the
outstanding voting stock of the Corporation at any time
within the three-year period immediately prior to the date
on which it is sought to be determined whether such person
is an interested shareholder; and the affiliates and
associates of such person; provided, however, that the
term "interested shareholder" shall not include (x) any
person whose ownership of shares in excess of the 15%
limitation set forth herein is the result of action taken
solely by the Corporation; provided that such person shall
be an interested shareholder if thereafter such person
acquires additional shares of voting stock of the
Corporation, except as a result of further Corporate
action not caused, directly or indirectly, by such person,
(y) American Securities Partners GP (Management) Corp.,
ASP/CTB G.P. Corp. or any of their respective affiliates
or associates or (z) any member of the Caryl M. Chocola
family and their respective affiliates. For the purpose of
determining whether a person is an interested shareholder,
the voting stock of the Corporation deemed to be
outstanding shall include stock deemed to be owned by the
person through application of paragraph (8) of this
subsection but shall not include any other unissued stock
of Corporation which may be issuable pursuant to any
agreement, arrangement or understanding, or upon exercise
of conversion rights, warrants or options, or otherwise.
(6) "Person" means any individual, corporation,
partnership, limited liability company or other entity.
(7) "Stock" means, with respect to any corporation,
capital stock and, with respect to any other entity, any
equity interest.
(8) "Voting stock" means, with respect to any corporation,
stock of any class or series entitled to vote generally in
the election of directors and, with respect to any entity
that is not a corporation, any equity interest entitled to
vote generally in the election of the governing body of
such entity.
(9) "Owner," including the terms "own" and "owned," when
used with respect to any stock, means a person that
individually or with or through any of its affiliates or
associates: (i) beneficially owns such stock, directly or
indirectly; or (ii) has (A) the right to acquire such
stock (whether such right is exercisable immediately or
only after the passage of time) pursuant to any agreement,
arrangement or understanding, or upon the exercise of
conversion rights, exchange rights, warrants or options,
or otherwise; provided, however, that a person shall not
be deemed the owner of stock tendered pursuant to a tender
or exchange offer made by such person or any of such
person's affiliates or associates until such tendered
stock is accepted for purchase or exchange; or (B) the
right to vote such stock pursuant to any agreement,
arrangement or understanding; provided, however, that a
person shall not be deemed the owner of any stock because
of such person's right to vote such stock if the
agreement, arrangement or understanding to vote such stock
arises solely from a revocable proxy or consent given in
response to a proxy or consent solicitation made to ten
(10) or more persons; or (iii) has any agreement,
arrangement or understanding for the purpose of acquiring,
holding, voting (except voting pursuant to a revocable
proxy or consent as described in item (B) of subparagraph
(ii) of this paragraph), or disposing of such stock with
any other person that beneficially owns, or whose
affiliates or associates beneficially own, directly or
indirectly, such stock.
SECTION 8.2. FIDUCIARY OBLIGATIONS UNAFFECTED. Nothing in
this Article VIII shall be construed to relieve any interested
shareholder from any fiduciary duty imposed by law.
SECTION 8.3. ARTICLE VIII NONEXCLUSIVE. The provisions of
this Article VIII are nonexclusive and are in addition to any other
provisions of law or these restated Articles of Incorporation or the
By-Laws of the Corporation relating to business combinations,
interested shareholders or similar matters.
SECTION 8.4. AMENDMENTS. Any amendment to this Article VIII
shall not be effective until twelve (12) months after the adoption
of such amendment and shall not apply to any business combination
with any person who became an interested shareholder on or prior to
such adoption.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. AMENDMENT OR REPEAL. Except as otherwise
expressly provided for in these Restated Articles of Incorporation,
the Corporation shall be deemed, for all purposes, to have reserved
the right to amend, alter, change or repeal any provision contained
in these Restated Articles of Incorporation to the extent and in the
manner now or hereafter permitted or prescribed by statute, and all
rights herein conferred upon shareholders are granted subject to
such reservation.
SECTION 9.2. CAPTIONS. The captions of the Articles and
Sections of these Restated Articles of Incorporation have been
inserted for convenience of reference only and do not in any way
define, limit, construe or describe the scope or intent of any
Article or Section hereof.
SECTION 9.3 ELECTION NOT TO BE GOVERNED BY IC 23-1-42. The
Corporation, pursuant to the provisions of IC 23-1-42-5, hereby
expressly elects not to be governed by the provisions of Chapter 42
of the Corporation Law (IC 23-1-42), regarding control share
acquisitions.
SECTION 9.4. ELECTION NOT TO BE GOVERNED BY IC 23-1-43. The
Corporation, pursuant to the provisions of IC 23-1-43-22(B), hereby
expressly elects not to be governed by the provisions of Chapter 43
of the Corporation Law (IC 23-1-43), regarding business
combinations.
EXHIBIT 4.2
BY-LAWS
OF
CTB INTERNATIONAL CORP.
(formerly CTB Indiana Corp.)
(As Amended December 21, 1999)
ARTICLE I
MEETINGS OF SHAREHOLDERS
SECTION 1.1. ANNUAL MEETINGS. Annual meetings of the
shareholders of the Corporation shall be held on the first Tuesday
of May of each year at such hour and at such place within or without
the State of Indiana as shall be designated by the Board of
Directors. In the absence of designation, the meeting shall be held
at the principal office of the Corporation at 11:00 a.m. (local
time). The Board of Directors may, by resolution, change the date
or time of such annual meeting. If the day fixed for any annual
meeting of shareholders shall fall on a legal holiday, then such
annual meeting shall be held on the first following day that is not
a legal holiday.
SECTION 1.2. SPECIAL MEETINGS. Special meetings of the
shareholders of the Corporation may be called at any time by the
Board of Directors, Chairman of the Board or the President and shall
be called by the Board of Directors if the Secretary receives
written, dated and signed demands for a special meeting, describing
in reasonable detail the purpose or purposes for which it is to be
held, from the holders of shares representing at least twenty-five
percent (25%) of all votes entitled to be cast on any issue proposed
to be considered at the proposed special meeting. If the Secretary
receives one (1) or more proper written demands for a special
meeting of shareholders, the Board of Directors may set a record
date for determining shareholders entitled to make such demand. The
Board of Directors, Chairman of the Board or the President, as the
case may be, calling a special meeting of shareholders shall set the
date, time and place of such meeting, which may be held within or
without the State of Indiana.
SECTION 1.3. NOTICES. A written notice, stating the
date, time and place of any meeting of the shareholders, and, in the
case of a special meeting, the purpose or purposes for which such
meeting is called, shall be delivered or mailed by the Secretary of
the Corporation to each shareholder of record of the Corporation
entitled to notice of or to vote at such meeting no fewer than ten
(10) nor more than sixty (60) days before the date of the meeting.
In the event of a special meeting of shareholders required to be
called as the result of a demand therefor made by shareholders, such
notice shall be given no later than the sixtieth (60th) day after
the Corporation's receipt of the demand requiring the meeting to be
called. Notice of shareholders' meetings, if mailed, shall be
mailed, postage prepaid, to each shareholder at his or her address
shown in the Corporation's current record of shareholders.
Notice of a meeting of shareholders shall be given to
shareholders not entitled to vote, but only if a purpose for the
meeting is to vote on any amendment to the Corporation's Articles of
Incorporation, merger or share exchange to which the Corporation
would be a party, sale of the Corporation's assets or dissolution of
the Corporation. Except as required by the foregoing sentence or as
otherwise required by the Indiana Business Corporation Law or the
Corporation's Articles of Incorporation, notice of a meeting of
shareholders is required to be given only to shareholders entitled
to vote at the meeting.
A shareholder or his or her proxy may at any time waive
notice of a meeting if the waiver is in writing and is delivered to
the Corporation for inclusion in the minutes or filing with the
Corporation's records. A shareholder's attendance at a meeting,
whether in person or by proxy, (a) waives objection to lack of
notice or defective notice of the meeting, unless the shareholder or
his or her proxy at the beginning of the meeting objects to holding
the meeting or transacting business at the meeting, and (b) waives
objection to consideration of a particular matter at the meeting
that is not within the purpose or purposes described in the meeting
notice, unless the shareholder or his or her proxy objects to
considering the matter when it is presented. Each shareholder who
has, in the manner above provided, waived notice or objection to
notice of a shareholders' meeting shall be conclusively presumed to
have been given due notice of such meeting, including the purpose or
purposes thereof.
If an annual or special shareholders' meeting is adjourned
to a different date, time or place, notice need not be given of the
new date, time or place if the new date, time or place is announced
at the meeting before adjournment, unless a new record date is or
must be established for the adjourned meeting.
SECTION 1.4. BUSINESS OF SHAREHOLDER MEETINGS. At each
annual meeting, the shareholders shall elect the Directors and shall
conduct only such other business as shall have been properly brought
before the meeting. To be properly brought before an annual
meeting, business must be (a) specified in the notice of the meeting
(or any supplement thereto) given by or at the direction of the
Board of Directors, (b) otherwise properly brought before the
meeting by or at the direction of the Board of Directors or (c)
otherwise properly brought before the meeting by a shareholder of
the Corporation who (i) was a shareholder of record at the time of
giving the notice provided for in this Section 1.4, (ii) is entitled
to vote at the meeting and (iii) complied with the notice procedures
set forth in this Section 1.4. For business to be properly brought
before an annual meeting by a shareholder, the shareholder must have
given timely notice thereof in writing to the Secretary of the
Corporation at the principal executive office of the Corporation.
To be timely, a shareholder's notice shall be delivered not less
than 60 days nor more than 90 days prior to the annual meeting;
provided, however, that in the event that less than 70 days' notice
or prior public announcement (as defined herein) of the date of the
annual meeting is given or made to shareholders, notice by the
shareholder to be timely must be so received not later than the
close of business on the 10{th} day following the day on which such
notice of the date of the meeting was mailed or such public
announcement was made.
Such shareholder's notice shall set forth as to each
matter the shareholder proposes to bring before the annual meeting
(a) a brief description of the business desired to be brought before
the meeting and the reasons for conducting such business at the
meeting and any material interest in such business of such
shareholder and the beneficial owner, if any, on whose behalf the
proposal is made; (b) as to the shareholder giving the notice and
the beneficial owner, if any, on whose behalf the proposal is made
(i) the name and address of such shareholder, as they appear on the
Corporation's books, and the name and address of such beneficial
owner, (ii) the class and number of shares of the Corporation which
are owned beneficially and of record by such shareholder and such
beneficial owner as of the date such notice is given, and (iii) a
representation that such shareholder intends to appear in person or
by proxy at the meeting to propose such business; (c) in the event
that such business includes a proposal to amend either the Articles
of Incorporation or the By-Laws of the Corporation, the language of
the proposed amendment; and (d) if the shareholder intends to
solicit proxies in support of such shareholder's proposal, a
representation to that effect. The foregoing notice requirements
shall be deemed satisfied by a shareholder if the shareholder has
notified the Corporation of his or her intention to present a
proposal at an annual meeting and such shareholder's proposal has
been included in a proxy statement that has been prepared by
management of the Corporation to solicit proxies for such annual
meeting; provided, however, that if such shareholder does not appear
or send a qualified representative to present such proposal at such
annual meeting, the Corporation need not present such proposal for a
vote at such meeting, notwithstanding that proxies in respect of
such vote may have been received by the Corporation.
Notwithstanding anything in these By-Laws to the contrary, no
business shall be conducted at any annual meeting except in
accordance with this Section 1.4, and the Chairman of the Board,
President or other person presiding at an annual meeting of
shareholders may refuse to permit any business to be brought before
an annual meeting without compliance with the foregoing procedures
or if the shareholder solicits proxies in support of such
shareholder's proposal without such shareholder having made the
representation required by clause (d) of the second preceding
sentence.
For the purposes of this Section 1.4, "public
announcement" shall mean disclosure in a press release reported by
the Dow Jones News Service, Associated Press or comparable national
news service or in a document publicly filed by the Corporation with
the Securities and Exchange Commission pursuant to Sections 13, 14
or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"). In addition to the provisions of this Section 1.4,
a shareholder shall also comply with all applicable requirements of
the Exchange Act and the rules and regulations thereunder with
respect to the matters set forth herein. Nothing in these By-Laws
shall be deemed to affect any rights of the shareholders to request
inclusion of proposals in the Corporation's proxy statement pursuant
to Rule 14a-8 under the Exchange Act.
SECTION 1.5. NOTICE OF SHAREHOLDER NOMINATIONS.
Nominations of persons for election as Directors may be made by the
Board of Directors or by any shareholder who is a shareholder of
record at the time of giving the notice of nomination provided for
in this Section 1.5 and who is entitled to vote in the election of
Directors. Any shareholder of record entitled to vote in the
election of Directors at a meeting may nominate a person or persons
for election as Directors only if timely written notice of such
shareholder's intent to make such nomination is given to the
Secretary of the Corporation in accordance with the procedures for
bringing business before an annual meeting set forth in Section 1.4
of these By-Laws. To be timely, a shareholder's notice shall be
delivered with respect to an election to be held at a meeting of
shareholders, not less than 60 days nor more than 90 days prior to
the meeting; provided, however, that in the event that less than 70
days' notice or prior public announcement (as defined herein) of the
date of the meeting is given or made to shareholders, notice by the
shareholder to be timely must be so received no later than the close
of business on the 10{th} day following the day on which such notice
of the date of the meeting was mailed or such public announcement
was made.
Such shareholder's notice shall set forth: (a) the name
and address of the shareholder who intends to make the nomination,
of the person or persons to be nominated and of the beneficial
owner, if any, on whose behalf the nomination is made; (b) a
representation that the shareholder is a holder of record of stock
of the Corporation entitled to vote at such meeting in such election
and intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice; (c) a
description of all arrangements or understandings between the
shareholder, any such beneficial owner, each nominee and any other
person or persons (naming such person or persons) pursuant to which
the nomination or nominations are to be made by the shareholder; (d)
such other information regarding each nominee proposed by such
shareholder as would have been required to be included in a proxy
statement filed pursuant to the proxy rules of the Securities and
Exchange Commission had each nominee been nominated, or intended to
be nominated, by the Board of Directors; (e) the consent of each
nominee to serve as a Director if so elected; and (f) if the
shareholder intends to solicit proxies in support of such
shareholder's nominee(s), a representation to that effect. The
chairman of any meeting of shareholders to elect Directors and the
Board of Directors may refuse to acknowledge the nomination of any
person not made in compliance with the foregoing procedure or if the
shareholder solicits proxies in support of such shareholder's
nominee(s) without such shareholder having made the representation
required by clause (f) of the preceding sentence. In addition to
the provisions of this Section 1.5, a shareholder shall also comply
with all applicable requirements of the Exchange Act and the rules
and regulations thereunder with respect to the matters set forth
herein.
SECTION 1.6. VOTING. Except as otherwise provided by the
Indiana Business Corporation Law or the Corporation's Articles of
Incorporation, each share of the capital stock of any class of the
Corporation that is outstanding at the record date established for
any annual or special meeting of shareholders and is outstanding at
the time of and represented in person or by proxy at the annual or
special meeting, shall entitle the record holder thereof, or his
proxy, to one (1) vote on each matter voted on at the meeting.
SECTION 1.7. QUORUM. Unless the Corporation's Articles
of Incorporation or the Indiana Business Corporation Law provide
otherwise, at all meetings of shareholders, a majority of the votes
entitled to be cast on a matter, represented in person or by proxy,
constitutes a quorum for action on the matter. Action may be taken
at a shareholders' meeting only on matters with respect to which a
quorum exists; provided, however, that any meeting of shareholders,
including annual and special meetings and any adjournments thereof,
may be adjourned to a later date although less than a quorum is
present. Once a share is represented for any purpose at a meeting,
it is deemed present for quorum purposes for the remainder of the
meeting and for any adjournment of that meeting unless a new record
date is or must be set for that adjourned meeting.
SECTION 1.8. VOTE REQUIRED TO TAKE ACTION. If a quorum
exists as to a matter to be considered at a meeting of shareholders,
action on such matter (other than the election of Directors) is
approved if the votes properly cast favoring the action exceed the
votes properly cast opposing the action, except as the Corporation's
Articles of Incorporation or the Indiana Business Corporation Law
require a greater number of affirmative votes. Directors shall be
elected by a plurality of the votes properly cast.
SECTION 1.9. RECORD DATE. Only such persons shall be
entitled to notice of or to vote, in person or by proxy, at any
shareholders' meeting as shall appear as shareholders upon the books
of the Corporation as of such record date as the Board of Directors
shall determine, which date may not be earlier than the date seventy
(70) days immediately preceding the meeting. In the absence of such
determination, the record date shall be the fiftieth (50{th}) day
immediately preceding the date of such meeting. Unless otherwise
provided by the Board of Directors, shareholders shall be determined
as of the close of business on the record date.
SECTION 1.10. PROXIES. A shareholder may vote his or her
shares either in person or by proxy. A shareholder may appoint a
proxy to vote or otherwise act for the shareholder (including
authorizing the proxy to receive, or to waive, notice of any
shareholders' meeting within the effective period of such proxy) by
signing an appointment form, either personally or by the
shareholders' attorney-in-fact. An appointment of a proxy is
effective when received by the Secretary or other officer or agent
authorized to tabulate votes and is effective for eleven (11) months
unless a longer or shorter period is expressly provided in the
appointment form. The proxy's authority may be limited to a
particular meeting or may be general and authorize the proxy to
represent the shareholder at any meeting of shareholders held within
the time provided in the appointment form. Subject to the Indiana
Business Corporation Law and to any express limitation on the
proxy's authority appearing on the face of the appointment form, the
Corporation is entitled to accept the proxy's vote or other action
as that of the shareholder making the appointment.
SECTION 1.11. REMOVAL OF DIRECTORS. Notwithstanding any
other provision of the Corporation Law, these Bylaws or the Restated
Articles of Incorporation of the Corporation, one or more directors
of the Corporation may be removed at any time, with or without
cause, by the affirmative vote of the holders of a majority or more
of the outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors (considered
for this purpose as one class) cast at a meeting of the shareholders
called for that purpose, or by a majority vote of the entire Board
of Directors. Notwithstanding the foregoing, and except as
otherwise required by law, whenever the holders of any one or more
series of Preferred Stock shall have the right, voting separately as
a class, to elect one or more directors of the Corporation, the
provisions of this Section 1.11 shall not apply with respect to the
director or directors elected by such holders of Preferred Stock.
SECTION 1.12. WRITTEN CONSENTS. Any action required or
permitted to be taken at a shareholders' meeting may be taken
without a meeting if the action is taken by all the shareholders
entitled to vote on the action. The action must be evidenced by one
(1) or more written consents describing the action taken, signed by
all the shareholders entitled to vote on the action, and delivered
to the Corporation for inclusion in the minutes or filing with the
corporate records. Action taken under this Section 1.12 is
effective when the last shareholder signs the consent, unless the
consent specifies a different prior or subsequent effective date, in
which case the action is effective on or as of the specified date.
Such consent shall have the same effect as a unanimous vote of all
shareholders and may be described as such in any document.
SECTION 1.13. PARTICIPATION BY CONFERENCE TELEPHONE. The
President or the Board of Directors may permit any or all
shareholders to participate in an annual or special meeting of
shareholders by, or through the use of, any means of communication,
such as conference telephone, by which all shareholders
participating may simultaneously hear each other during the meeting.
A shareholder participating in a meeting by such means shall be
deemed to be present in person at the meeting.
ARTICLE II
DIRECTORS
SECTION 2.1. NUMBER AND TERMS. The business and affairs
of the Corporation shall be managed under the direction of a Board
of Directors consisting of not less than one (1) or more than
fifteen (15) Directors. The current Board of Directors consists of
nine (9) Directors.
Each Director shall be elected for a term of office to
expire at the annual meeting of shareholders next following his or
her election. Despite the expiration of a Director's term, the
Director shall continue to serve until his or her successor is
elected and qualified, or until the earlier of the Director's death,
resignation, disqualification or removal, or until there is a
decrease in the number of Directors. Any vacancy occurring in the
Board of Directors, from whatever cause arising, shall be filled by
selection of a successor by a majority vote of the remaining members
of the Board of Directors (although less than a quorum); provided,
however, that if such vacancy or vacancies leave the Board of
Directors with no members or if the remaining members of the Board
are unable to agree upon a successor or determine not to select a
successor, such vacancy may be filled by a vote of the shareholders
at a special meeting called for that purpose or at the next annual
meeting of shareholders. The term of a Director elected or selected
to fill a vacancy shall expire at the end of the term for which such
Director's predecessor was elected, or if the vacancy arises because
of an increase in the size of Board of Directors, at the end of the
term specified at the time of election or selection.
The Directors and each of them shall have no authority to
bind the Corporation except when acting as a Board.
SECTION 2.2. QUORUM AND VOTE REQUIRED TO TAKE ACTION. A
majority of the whole Board of Directors shall be necessary to
constitute a quorum for the transaction of any business, except the
filling of vacancies. If a quorum is not present at any meeting of
the Board of Directors, the Directors present may adjourn the
meeting from time to time, without notice other than announcement of
the meeting, until such a quorum is present. Except as otherwise
provided by law, the Corporation's Articles of Incorporation, these
By-Laws or any contract or agreement to which the Corporation is a
party, the affirmative vote of a majority of the Directors present
at any meeting at which there is a quorum shall be the act of the
Board of Directors.
SECTION 2.3. ANNUAL AND REGULAR MEETINGS. The Board of
Directors shall meet annually, without notice, immediately prior to
or following the annual meeting of the shareholders, for the purpose
of transacting such business as properly may come before the
meeting. Other regular meetings of the Board of Directors, in
addition to said annual meeting, shall be held on such dates, at
such times and at such places as shall be fixed by resolution
adopted by the Board of Directors and specified in a notice of each
such regular meeting, or otherwise communicated to the Directors.
The Board of Directors may at any time alter the date for the next
regular meeting of the Board of Directors.
SECTION 2.4. SPECIAL MEETINGS. Special meetings of the
Board of Directors may be called by any member of the Board of
Directors upon not less than twenty-four (24) hours' notice given to
each Director of the date, time and place of the meeting, which
notice need not specify the purpose or purposes of the special
meeting. Such notice may be communicated in person (either in
writing or orally), by telephone, by facsimile, by electronic
communication or by mail, and shall be effective at the earlier of
the time of its receipt or, if mailed, five (5) days after its
mailing. Notice of any meeting of the Board may be waived in
writing at any time if the waiver is signed by the Director entitled
to the notice and is filed with the minutes or corporate records. A
Director's attendance at or participation in a meeting waives any
required notice to the Director of the meeting, unless the Director
at the beginning of the meeting (or promptly upon the Director's
arrival) objects to holding the meeting or transacting business at
the meeting and does not thereafter vote for or assent to action
taken at the meeting.
SECTION 2.5. WRITTEN CONSENTS. Any action required or
permitted to be taken at any meeting of the Board of Directors may
be taken without a meeting if the action is taken by all members of
the Board. The action must be evidenced by one (1) or more written
consents describing the action taken, signed by each Director, and
included in the minutes or filed with the corporate records
reflecting the action taken. Action taken under this Section 2.5 is
effective when the last Director signs the consent, unless the
consent specifies a different prior or subsequent effective date, in
which cases the action is effective on or as of the specified date.
A consent signed under this Section 2.5 shall have the same effect
as a unanimous vote of all members of the Board and may be described
as such in any document.
SECTION 2.6. PARTICIPATION BY CONFERENCE TELEPHONE. The
Board of Directors may permit any or all Directors to participate in
a regular or special meeting by, or through the use of, any means of
communication, such as conference telephone, by which all Directors
participating may simultaneously hear each other during the meeting.
A Director participating in a meeting by such means shall be deemed
to be present in person at the meeting.
SECTION 2.7. COMMITTEES. The Board of Directors may
create one (1) or more committees, including, without limitation, an
Executive Committee and appoint members of the Board of Directors to
serve on them, by resolution of the Board of Directors adopted by a
majority of all the Directors in office when the resolution is
adopted. Each committee may exercise the authority of the Board of
Directors to the extent specified in the resolution. Each committee
may have one (1) or more members, and all the members of such
committee shall serve at the pleasure of the Board of Directors.
SECTION 2.8. LIMITATIONS ON COMMITTEES; NOTICE, QUORUM
AND VOTING.
(a) Neither an Executive Committee nor any other
committee hereafter established may:
(1) authorize dividends or other distributions, except a
committee may authorize or approve a reacquisition of
shares or other distribution if done according to a
formula or method, or within a range, prescribed by the
Board of Directors;
(2) approve or propose to shareholders action that is
required to be approved by shareholders;
(3) fill vacancies on the Board of Directors or on any of
its committees;
(4) except as permitted under Section 2.8(a)(7) below,
amend the Corporation's Articles of Incorporation
under IC 23-1-38-2;
(5) adopt, amend, repeal or waive provisions of these
By-Laws;
(6) approve a plan of merger not requiring shareholder
approval; or
(7) authorize or approve the issuance or sale or a
contract for sale of shares, or determine the
designation and relative rights, preferences and
limitations of a class or series of shares, except
the Board of Directors may authorize a committee (or
an executive officer of the Corporation designated by
the Board of Directors) to take the action described
in this Section 2.8(a)(7) within limits prescribed by
the Board of Directors.
(b) Except to the extent inconsistent with the
resolutions creating a committee, Sections 2.1 through 2.6 of these
By-Laws, which govern meetings, action without meetings, notice and
waiver of notice, quorum and voting requirements and telephone
participation in meetings of the Board of Directors, apply to each
committee and its members as well.
ARTICLE III
OFFICERS
SECTION 3.1. DESIGNATION, SELECTION AND TERMS. The
officers of the Corporation shall consist of the Chairman of the
Board, the President, one or more Vice Presidents, the Chief
Financial Officer, a Treasurer, a Secretary, and such other officers
or agents with such titles and such duties as the Board of Directors
may from time to time determine by resolution creating the office
and defining the duties thereof. In addition, the President may, by
a certificate of appointment creating the office and defining the
duties thereof delivered to the Secretary for inclusion with the
corporate records, from time to time create and appoint such
assistant officers as he or she deems desirable. The officers of
the Corporation shall be elected by the Board of Directors (or
appointed by the President as provided above) and need not be
selected from among the members of the Board of Directors, except
for the Chairman of the Board and the President who shall be members
of the Board of Directors. Any two (2) or more offices may be held
by the same person. All officers shall serve at the pleasure of the
Board of Directors and, with respect to officers appointed by the
President, also at the pleasure of such officer. The election or
appointment of an officer does not itself create contract rights.
SECTION 3.2. REMOVAL. The Board of Directors may remove
any officer at any time with or without cause. An officer appointed
by the President may also be removed at any time, with or without
cause, by such officer. Vacancies in such offices, however
occurring, may be filled by the Board of Directors at any meeting of
the Board of Directors (or by appointment by the President, to the
extent provided in Section 3.1 of these By-Laws).
SECTION 3.3. CHAIRMAN OF THE BOARD. The Chairman of the
Board shall, if present, preside at all meetings of the shareholders
and of the Board of Directors and shall have such powers and perform
such duties as are assigned to him by the Board of Directors.
SECTION 3.4. PRESIDENT. The President shall be the chief
executive and principal policymaking officer of the Corporation.
Subject to the authority of the Board of Directors, he or she shall
formulate the major policies to be pursued in the administration of
the Corporation's affairs. The President shall study and make
reports and recommendations to the Board of Directors with respect
to major problems and activities of the Corporation and shall see
that the established policies are placed into effect and carried
out. In the absence of the Chairman of the Board, the President
shall preside at the meetings of the shareholders and of the Board
of Directors.
SECTION 3.5. CHIEF FINANCIAL OFFICER. The Chief
Financial Officer shall be the chief financial officer of the
Corporation and shall perform all of the duties customary to that
office. He or she shall be responsible for all of the Corporation's
financial affairs, subject to the supervision and direction of the
President, and shall have and perform such further powers and duties
as the Board of Directors may, from time to time, prescribe and as
the President may, from time to time, delegate to him or her.
SECTION 3.6. VICE PRESIDENTS. Each Vice President shall
have such powers and perform such duties as the Board of Directors
may, from time to time, prescribe and as the President may, from
time to time, delegate to him or her.
SECTION 3.7. TREASURER. The Treasurer shall perform all
of the duties customary to that office, shall be the chief
accounting officer of the Corporation and shall be responsible for
all of the Corporation's accounting books and records and preparing
its financial statements, subject to the supervision and direction
of the Chief Financial Officer and the President. The Treasurer
shall submit to the Board of Directors at such times as the Board
may require full statements showing in detail the financial
condition and affairs of the Corporation. He or she shall also be
responsible for causing the Corporation to furnish financial
statements to its shareholders pursuant to IC 23-1-53-1.
SECTION 3.8. SECRETARY. The Secretary shall be the
custodian of the books, papers, and records of the Corporation and
of its corporate seal, if any, and shall be responsible for seeing
that the Corporation maintains the records required by IC 23-1-52-1
(other than accounting records) and that the Corporation files with
the Indiana Secretary of State the biennial report required by IC
23-1-53-3. The Secretary shall be responsible for preparing minutes
of the meetings of the shareholders and of the Board of Directors
and for authenticating records of the Corporation and shall perform
all of the other duties usual in the office of Secretary of a
corporation.
SECTION 3.9. ASSISTANT TREASURERS OR SECRETARIES. The
Assistant Treasurers and the Assistant Secretaries, if any, shall
perform such duties as shall be assigned to them by the Treasurer or
Secretary, or by the President or the Board of Directors.
SECTION 3.10. SALARY. The Board of Directors or any duly
designated committee of the Board of Directors may, at its
discretion, from time to time, fix the salary of any officer by
resolution included in the minute book of the Corporation.
ARTICLE IV
CHECKS
All checks, drafts or other orders for payment of money
shall be signed in the name of the Corporation by such officers or
persons as shall be designated from time to time by resolution
adopted by the Board of Directors and included in the minute book of
the Corporation; and in the absence of such designation, such
checks, drafts or other orders for payment shall be signed by the
President or the Treasurer.
ARTICLE V
LOANS
Such of the officers of the Corporation as shall be
designated from time to time by resolution adopted by the Board of
Directors and included in the minute book of the Corporation shall
have the power, with such limitations thereon as may be fixed by the
Board of Directors, to borrow money in the Corporation's behalf, to
establish credit, to discount bills and papers, to pledge
collateral, and to execute such notes, bonds, debentures or other
evidences of indebtedness, and such mortgages, trust indentures and
other instruments in connection therewith as may be authorized from
time to time by such Board of Directors.
ARTICLE VI
EXECUTION OF DOCUMENTS
The President or any other officer authorized by the
President or the Board of Directors may, in the Corporation's name,
sign all deeds, leases, contracts or similar documents unless
otherwise directed by the Board of Directors or otherwise provided
herein or in the Corporation's Articles of Incorporation, or as
otherwise required by law.
ARTICLE VII
STOCK
SECTION 7.1. EXECUTION. Certificates for shares of the
capital stock of the Corporation shall be signed by the President
and by the Secretary and the seal of the Corporation (or a facsimile
thereof), if any, may be thereto affixed. Where any such
certificate is also signed by a transfer agent or a registrar, or
both, the signatures of the officers of the Corporation may be
facsimiles. The Corporation may issue and deliver any such
certificate notwithstanding that any such officer who shall have
signed, or whose facsimile signature shall have been imprinted on,
such certificate shall have ceased to be such officer.
SECTION 7.2. CONTENTS. Each certificate issued after the
adoption of these By-Laws shall state on its face the name of the
Corporation and that it is organized under the laws of the State of
Indiana, the name of the person to whom it is issued, and the number
and class of shares and the designation of the series, if any, the
certificate represents, and shall state conspicuously on its front
or back that the Corporation will furnish the shareholder, upon his
or her written request and without charge, a summary of the
designations, relative rights, preferences and limitations
applicable to each class and the variations in rights, preferences
and limitations determined for each series (and the authority of the
Board of Directors to determine variations for future series).
SECTION 7.3. TRANSFERS. Except as otherwise provided by
law or by resolution of the Board of Directors, transfers of shares
of the capital stock of the Corporation shall be made only on the
books of the Corporation by the holder thereof, in person or by duly
authorized attorney, on payment of all taxes thereon and surrender
for cancellation of the certificate or certificates for such shares
(except as hereinafter provided in the case of loss, destruction or
mutilation of certificates) properly endorsed by the holder thereof
or accompanied by the proper evidence of succession, assignment or
authority to transfer, and delivered to the Secretary or an
Assistant Secretary.
SECTION 7.4. STOCK TRANSFER RECORDS. There shall be
entered upon the stock records of the Corporation the number of each
certificate issued, the name and address of the registered holder of
such certificate, the number, kind and class of shares represented
by such certificate, the date of issue, whether the shares are
originally issued or transferred, the registered holder from whom
transferred, and such other information as is commonly required to
be shown by such records. The stock records of the Corporation
shall be kept at its principal office, unless the Corporation
appoints a transfer agent or registrar, in which case the
Corporation shall keep at its principal office a complete and
accurate shareholders' list giving the names and addresses of all
shareholders and the number and class of shares held by each. If a
transfer agent is appointed by the Corporation, shareholders shall
give written notice of any changes in their addresses from time to
time to the transfer agent.
SECTION 7.5. TRANSFER AGENTS AND REGISTRARS. The Board
of Directors may appoint one or more transfer agents and one or more
registrars and may require each stock certificate to bear the
signature of either or both.
SECTION 7.6. LOSS, DESTRUCTION, OR MUTILATION OF
CERTIFICATES. The holder of any of the capital stock of the
Corporation shall immediately notify the Corporation of any loss,
destruction or mutilation of the certificate therefor, and the Board
of Directors may, in its discretion, cause to be issued to him a new
certificate or certificates of stock, upon the surrender of the
mutilated certificate, or, in the case of loss or destruction, upon
satisfactory proof of such loss or destruction. The Board of
Directors may, in its discretion, require the holder of the lost or
destroyed certificate or his legal representative to give the
Corporation a bond in such sum and in such form, and with such
surety or sureties as it may direct, to indemnify the Corporation,
its transfer agents and registrars, if any, against any claim that
may be made against them or any of them with respect to the capital
stock represented by the certificate or certificates alleged to have
been lost or destroyed, but the Board of Directors may, in its
discretion, refuse to issue a new certificate or certificates, save
upon the order of a court having jurisdiction in such matters.
SECTION 7.7. FORM OF CERTIFICATES. The form of the
certificates for shares of the capital stock of the Corporation
shall conform to the requirements of Section 7.2 of these By-Laws
and be in such printed form as shall from time to time be approved
by resolution of the Board of Directors.
ARTICLE VIII
SEAL
The corporate seal of the Corporation shall, if the
Corporation elects to have one, be in the form of a disc, with the
name of the Corporation and "INDIANA" on the periphery thereof and
the word "SEAL" in the center.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. INDIANA BUSINESS CORPORATION LAW. The
provisions of the Indiana Business Corporation law, as amended,
applicable to all matters relevant to, but not specifically covered
by, these By-Laws are hereby, by reference, incorporated in and made
a part of these By-Laws.
SECTION 9.2. FISCAL YEAR. The fiscal year of the
Corporation shall end on December 31 of each year.
SECTION 9.3. AMENDMENTS. These By-Laws may be rescinded,
changed or amended, and provisions hereof may be waived, at any
meeting of the Board of Directors by the affirmative vote of a
majority of the entire number of Directors at the time, except as
otherwise required by the Corporation's Articles of Incorporation,
by the Indiana Business Corporation Law, or by specific sections of
these By-Laws.
SECTION 9.4. DEFINITION OF ARTICLES OF INCORPORATION.
The term "Articles of Incorporation" as used in these By-Laws means
the Articles of Incorporation of the Corporation as from time to
time are in effect.
<PAGE>
EXHIBIT 4.3
PRISM PROTOTYPE RETIREMENT PLAN AND TRUST
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. Unless the context indicates otherwise, the
following terms, when used herein with initial capital letters,
shall have the meanings set forth below:
(A) Accounting Date: The date which is the last business
day of each month of the Employer's Plan Year or such other
date as may be agreed upon between the Employer and the
Trustee, but only if the Employer has specifically requested
the Trustee to prepare an accounting on or before such date.
Notwithstanding the foregoing, the Trustee shall value the
assets held in the Trust on each business day that the Trustee
and the New York Stock Exchange are open for business.
(B) Adoption Agreement: The Adoption Agreement adopting
this Plan which has been executed by the Employer and accepted
by the Trustee, including any amendment thereof, which is
incorporated herein by reference.
(C) Basic Plan Document: This document, which, in
connection with the Adoption Agreement forms the Plan.
(D) Beneficiary: The person or persons to whom a deceased
Participant's benefits are payable under the Plan.
(E) Break In Service: A 12-consecutive month period
during which the Participant does not complete more than one-
half of the Hours of Service with the Employer required for a
Year of Service, as elected in the Adoption Agreement. For
eligibility purposes, the initial 12-consecutive month period
is the period beginning on the Employees date of hire.
Subsequent 12-consecutive month periods for eligibility
purposes will be either the period ending on the annual
anniversary of the Employee's date of hire or the Plan Year, as
selected in the Adoption Agreement. For all other purposes,
the 12-consecutive month period shall be the Plan Year, or
other computation period as selected in the Adoption Agreement.
If the elapsed time method of crediting service is elected in
the Adoption Agreement, "Break In Service" will mean a Period
of Severance of at least 12-consecutive months.
(F) Code: The Internal Revenue Code of 1986, and
amendments thereto.
(G) Committee: The Committee provided for in Article XI,
which shall be a Named Fiduciary as defined in the Employee
Retirement Income Security Act of 1974, as amended ("ERISA").
To the extent that the Employer does not appoint a Committee,
the Employer shall have the duty of the day to day
administration of the Plan and shall be the Named Fiduciary for
that purpose.
(H) Compensation: Compensation shall have the following
various definitions, as may be appropriate within the context
of the Plan:
(1) Compensation as that term is defined in Section
6.6(A) of the Plan. For any Self-Employed Individual covered
under the Plan, Compensation will mean Earned Income.
Compensation shall include only that compensation which is
actually paid to the Participant during the determination
period. Except as provided elsewhere in this Plan, the
determination period shall be the period elected by the
Employer in the Adoption Agreement. If the Employer makes no
election, the determination period shall be the Plan Year. For
purposes of allocations of Employer Profit Sharing or Matching
Contributions, the definition of Compensation in Section
6.6(A)(2)(a) shall be used, as modified in the Adoption
Agreement.
Notwithstanding the above, if elected by the Employer in
the Adoption Agreement, Compensation for allocation purposes
shall include any amount which is contributed by the Employer
pursuant to a salary reduction agreement and which is not
includible in the gross income of the employee under Sections
125, 402(e)(3), 402(h)(1)(B) or 403(b) of the Code.
(2) For years beginning after December 31, 1988, and
prior to January 1, 1994, the annual Compensation of each
Participant taken into account for determining all benefits
provided under the Plan for any determination period shall not
exceed $200,000. This limitation shall be adjusted by the
Secretary at the same time and in the same manner as under
Section 415(d) of the Code except that the dollar increase in
effect on January 1 of any calendar year is effective for plan
years beginning in such calendar year and the first adjustment
to the $200,000 limitation is effective on January 1, 1990.
After December 31, 1993, the annual Compensation of each
Participant taken into account for determining all benefits
provided under the Plan for any determination period shall not
exceed $150,000, or such other lesser amount as may be
specified in the Adoption Agreement. This limitation shall be
adjusted by the Secretary at the same time and in the same
manner as under Section 415(d) of the Code. If a Plan
determines Compensation on a period of time that contains fewer
than 12 calendar months, then the annual Compensation limit is
an amount equal to the annual Compensation limit for the
calendar year in which the Compensation period begins
multiplied by a ratio obtained by dividing the number of full
months in the period by 12.
In determining the Compensation of a Participant for
purposes of this limitation, the rules of Section 414(q)(6) of
the Code shall apply, except in applying such rules, the term
"family" shall include only the Spouse of the Participant and
any lineal descendants of the Participant who have not attained
age 19 before the close of the year. If, as a result of the
application of such rules the adjusted annual compensation
limitation is exceeded, then (except for purposes of
determining the portion of Compensation up to the integration
level if this Plan provides for permitted disparity), the
limitation shall be prorated among the affected individuals in
proportion to each such individual's Compensation as determined
under this Section prior to the application of this limitation.
If compensation for any prior determination period is
taken into account in determining an Employee's allocations or
benefits for the current determination period, 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 compensation limit is $200,000. In addition, in
determining allocations in plan years beginning on or after
January 1, 1994, the annual compensation limit in effect for
determination periods beginning before that date is $150,000.
(I) Disability: The inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than
twelve (12) months. The permanence and degree of such
impairment shall be supported by medical evidence. The
Employer shall determine the existence of a Disability based on
its current disability policy, applied on a uniform and
nondiscriminatory basis.
(J) Earned Income: The net earnings from self-employment
in the trade or business with respect to which the Plan is
established, for which personal services of the individual are
a material income-producing factor. Net earnings will be
determined without regard to items not included in gross income
and the deductions allocable to such items. Net earnings are
reduced by contributions by the Employer to a qualified Plan to
the extent deductible under Section 404 of the Code. Net
earnings shall be determined with regard to the deduction
allowed to the taxpayer by Section 164(f) of the Code for
taxable years beginning after December 31, 1989.
(K) Early Retirement Date: The date specified in the
Adoption Agreement at which a participating Employee may
receive an early retirement benefit.
(L) Effective Date: The date specified in the Adoption
Agreement which shall be the effective date of the provisions
of this Plan, unless modified in Item B(18) of the Adoption
Agreement. If the Plan is a restatement of an existing Plan,
the original effective date of the Plan shall be as specified
in the Adoption Agreement.
(M) Eligible Employee: Any Employee who is eligible to
receive an Employer contribution (including forfeitures), as
defined in Item B(6) of the Adoption Agreement.
(N) Eligibility Computation Period: For purposes of
determining Years of Service and Breaks in Service for purposes
of eligibility, the initial Eligibility Computation Period is
the 12-consecutive month period beginning on the Employee's
Employment Commencement Date.
(1) For plans in which the Eligibility Computation
Periods commence on the 12-consecutive month anniversary
of the Employee's Employment Commencement Date, the
succeeding 12-consecutive month periods commence with the
first anniversary of the Employee's Employment
Commencement Date.
(2) For plans in which the Eligibility Computation
Period shifts to the Plan Year, the succeeding 12-
consecutive month periods commence with the first Plan
Year which commences prior to the first anniversary of the
Employee's Employment Commencement Date regardless of
whether the Employee is entitled to be credited with
number of Hours of Service specified in the Adoption
Agreement during the initial Eligibility Computation
Period. An Employee who is credited with number of Hours
of Service specified in the Adoption Agreement in both the
initial Eligibility Computation Period and the first Plan
Year which commences prior to the first anniversary of the
Employee's initial Eligibility Computation Period will be
credited with two Years of Service for purposes of
eligibility to participate.
Years of Service and Breaks in Service will be
measured on the same Eligibility Computation Period.
(3) Notwithstanding any other provisions of this
section, if the elapsed time method of crediting service
is elected in the Adoption Agreement for purposes of
eligibility, an Employee will receive credit for the
aggregate of all time periods completed (as may be elected
in the Adoption Agreement) beginning with the Employee's
Employment Commencement Date or Reemployment Commencement
Date and ending on the date a Break In Service begins.
The Employee will receive credit for any Period of
Severance of less than 12 consecutive months.
(O) Employee: Any employee, including any Self Employed
Individual, of the Employer maintaining the Plan or of any
other employer required to be aggregated with such Employer
under Sections 414(b), (c), (m) or (o) of the Code.
The term Employee shall also include any Leased Employee
deemed to be an Employee of any Employer described in the
previous paragraph as provided in Sections 414(n) or (o) of the
Code.
(P) Employer: The Employer specified in the Adoption
Agreement and any successor to the business of the Employer
establishing the Plan, which shall be the Plan Administrator
for purposes of Section 3(16) of ERISA, a Named Fiduciary as
defined in ERISA, and which may delegate all or any part of its
powers, duties and authorities in such capacity without ceasing
to be such Plan Administrator.
(Q) Employment Commencement Date: The date on which an
Employee first performs an Hour of Service for the Employer.
(R) Entry Date: The date selected by the Employer in Item
B(6)(d) of the Adoption Agreement, which shall be:
(1) The Effective Date of the Plan, for any Employee
who has satisfied the eligibility requirements set forth
in the Adoption Agreement;
(2) The first day of the month which coincides with
or immediately follows the date on which the Employee
satisfies the eligibility requirements set forth in the
Adoption Agreement;
(3) The first day of the Plan Year or the fourth,
seventh, or tenth month of the Plan Year which coincides
with or immediately follows the date on which the Employee
satisfies such eligibility requirements;
(4) The first day of the Plan Year or the seventh
month of the Plan Year which coincides with or immediately
follows the date on which the Employee satisfies such
eligibility requirements;
(5) The first day of the Plan Year, but only if the
eligibility service requirements specified in Item B(6)(d)
are six months or less; or,
(6) As soon as practicable after the Employee
satisfies such eligibility requirements specified in the
Adoption Agreement, but in no event beyond the date which
would be six months following the date on which the
Employee first completes the eligibility requirements
specified in the Adoption Agreement.
(S) ERISA: The Employee Retirement Income Security Act of
1974, as amended.
(T) Highly Compensated Employee: The term Highly
Compensated Employee includes highly compensated active
employees and highly compensated former employees.
A highly compensated active employee includes any Employee
who performs service for the Employer during the determination
year and who, during the lookback year: (i) received
Compensation from the Employer in excess of $75,000 (as
adjusted pursuant to Section 415(d) of the Code); (ii) received
Compensation from the Employer in excess of $50,000 (as
adjusted pursuant to Section 415(d) of the Code) and was a
member of the top-paid group for such year; or (iii) 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 section 415(b)(1)(A) of the Code. The term
Highly Compensated Employee also includes: (i) Employees who
are both described in the preceding sentence if the term
"determination year" is substituted for the term "lookback
year" and the Employee is one of the 100 Employees who receive
the most compensation from the Employer during the
determination year; and (ii) Employees who are 5 percent owners
at any time during the lookback year or determination year.
If no officer has satisfied the Compensation requirement
of (iii) above during either a determination year or lookback
year, the highest paid officer for such year shall be treated
as a Highly Compensated Employee.
For this purpose, the determination year shall be the Plan
Year. The lookback year shall be the twelvemonth period
immediately preceding the determination year. A highly
compensated former employee includes any Employee who separated
from service (or was deemed to have separated) prior to the
determination year, performs no service for the Employer during
the determination year, and was a highly compensated active
employee for either the separation year or any determination
year ending on or after the Employee's 55th birthday.
If an Employee is, during a determination year or lookback
year, a family member of either a 5 percent owner who is an
active or former employee or a Highly Compensated Employee who
is one of the 10 most Highly Compensated Employees ranked on
the basis of Compensation paid by the Employer during such
year, then the family member and the 5 percent owner or top-ten
Highly Compensated Employee shall be aggregated. In such case,
the family member and 5 percent owner or top-ten Highly
Compensated Employee shall be treated as a single employee
receiving Compensation and Plan contributions or benefits equal
to the sum of such Compensation and contributions or benefits
of the family member and 5 percent owner or top-ten Highly
Compensated Employee.
For purposes of this Section, family member includes the
Spouse, lineal ascendants and descendants of the employee or
former employee and the spouses of such lineal ascendants and
descendants.
The determination of who is a Highly Compensated Employee,
including the determinations of the number and identity of
Employees in the top-paid group, the top 100 Employees, the
number of Employees treated as officers and the Compensation
that is considered, will be made in accordance with Section
414(q) of the Code and the regulations thereunder.
(U) Hour of Service:
(1) 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
(2) 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
2530.200b2 of the Department of Labor Regulations which
are incorporated herein by reference; and
(3) 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 subparagraph (1) or subparagraph (2),
as the case may be, and under this subparagraph (3).
These hours shall be credited to the Employee for the
computation period or periods to which the award or
agreement pertains rather than for the computation period
in which the award, agreement or payment is made.
Hours of Service will be credited for employment with
other members of an affiliated service group (under
Section 414(m)), a controlled group of corporations (under
Section 414(b)), or a group of trades or businesses under
common control (under Section 414(c)) of which the
adopting Employer is a member, and any other entity
required to be aggregated with the Employer pursuant to
Section 414(o).
Hours of Service will also be credited for any
individual considered an Employee for purposes of this
Plan under Sections 414(n) or 414(o).
(4) Where the Employer maintains the Plan of a
predecessor employer, service for such predecessor
employer shall be treated as service for the Employer. If
the Employer does not maintain the Plan of a predecessor
employer, the Plan does not credit service with the
predecessor employer, unless the Employer identifies the
predecessor in its Adoption Agreement and specifies the
purposes for which the Plan will credit service with that
predecessor employer.
(5) Solely for purposes of determining whether a
Break-in-Service, as defined in Section 1.1(E), for
participation and vesting purposes has occurred in a
computation period, an individual who is absent from work
for maternity or paternity reasons shall receive credit
for the Hours of Service which would otherwise have been
credited to such individual but for such absence, or in
any case in which such hours cannot be determined, 8 Hours
of Service per day of such absence. For purposes of this
paragraph, an absence from work for maternity or paternity
reasons means an absence (1) by reason of the pregnancy of
the individual, (2) by reason of a birth of a child of the
individual, (3) by reason of the placement of a child with
the individual in connection with the adoption of such
child by such individual, or (4) for purposes of caring
for such child for a period beginning immediately
following such birth or placement. The Hours of Service
credited under this paragraph shall be credited (1) in the
computation period in which the absence begins if the
crediting is necessary to prevent a Break-in-Service in
that period, or (2) in all other cases, in the following
computation period.
(6) Hours of Service will be determined on the basis
of the method selected in the Adoption Agreement.
(V) Investment Fund: One of the funds provided for in
Section 10.7, and as selected by the Employer, as a Named
Fiduciary, on the Investment Fund Designation portion of the
Adoption Agreement.
(W) 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 Section 414(n)(6)
of the Code) on a substantially full time basis for a period of
at least one year, and such services are of a type historically
performed by employees in the business field of the recipient
employer. Contributions or benefits provided a leased employee
by the leasing organization which are attributable to services
performed for the recipient employer shall be treated as
provided by the recipient employer.
A leased employee shall not be considered an employee of
the recipient if: (i) such employee is covered by a money
purchase pension Plan providing: (1) a nonintegrated employer
contribution rate of at least 10 percent of compensation, as
defined in Section 415(c)(3) of the Code, but including amounts
contributed pursuant to a salary reduction agreement which are
excludable from the employee's gross income under Section 125,
Section 402(e)(3), Section 402(h)(1)(B) or Section 403(b) of
the Code, (2) immediate participation, and (3) full and
immediate vesting; and (ii) leased employees do not constitute
more than 20 percent of the recipient's nonhighly compensated
workforce.
(X) Net Profits: Current and accumulated earnings of the
Employer before Federal and state taxes and contributions to
this and any other qualified Plan, determined by the Employer
in accordance with generally accepted accounting principles.
(Y) Nonhighly Compensated Employee: An Employee of the
Employer who is neither a Highly Compensated Employee nor a
Family Member.
(Z) Normal Retirement Date: The date specified in the
Adoption Agreement at which a participant shall become fully
vested in his account balances, as provided for in this
document.
(AA) Owner-Employee: An individual who is a sole
proprietor, or who is a partner owning more than 10 percent of
either the capital or profits interest of the partnership.
(BB) Paired Plans: The Employer has adopted Plan #001 and
Plan # 003, both using this basic Plan document, which
constitutes a set of "paired plans" as defined by the Internal
Revenue Service in Revenue Procedure 89-9, or any successor
thereto.
(CC) Participant: A person who becomes eligible to
participate in accordance with the provisions of Article II,
and whose participation has not been terminated.
(DD) Permitted Disparity Level: The level selected in the
Adoption Agreement, not to exceed the Taxable Wage Base in
effect at the beginning of the Plan Year. The Taxable Wage
Base is the contribution and benefit base under section 230 of
the Social Security Act at the beginning of the year.
(EE) Period of Service: The period beginning on the
Employee's Employment Commencement Date or Reemployment
Commencement Date, and ending on the date a Period of Severance
begins. The Employee will receive credit for any Period of
Service of less than 12 consecutive months. Fractional periods
of a year will be expressed in days.
(FF) Period of Severance: A continuous period of time
during which the Employee is not employed by the Employer. A
Period of Severance begins on the date the Employee retires,
quits, or is discharged, or dies, or if earlier, the twelve
month anniversary of the date on which the Employee was first
absent from work for any other reason; provided, that if an
Employee is absent from work for any other reason and retires,
quits, is discharged, or dies within 12 months, the Period of
Severance begins on the day the Employee quits, retires, is
discharged, or dies.
(GG) Plan: This Plan established by the Employer as
embodied in this agreement and in the Adoption Agreement, and
all subsequent amendments thereto.
(HH) Plan Year: The 12-consecutive month period
designated by the Employer in the Adoption Agreement. In the
event that the original Effective Date is not the first day of
the Plan Year, the first Plan Year shall be a short Plan Year,
beginning on the original Effective Date, and ending on the
last day of the Plan Year as specified in the Adoption
Agreement.
(II) Qualified Distribution Date: For purposes of Section
7.13, the Qualified Distribution Date, if selected in the
Adoption Agreement, shall be the earliest retirement date
specified in Code Section 414(p) and shall operate to allow a
distribution to an Alternate Payee at the time a domestic
relations order is determined to be qualified.
(JJ) Reemployment Commencement Date: The date on which an
Employee completes an Hour of Service with the Employer after a
Break In Service or a Period of Severance.
(KK) Related Employers: Any employer related to the
Employer as a controlled group of corporations (as defined in
Section 414(b) of the Code), a group of trades or businesses
(whether or not incorporated) which are under common control
(as defined in Section 414(c)) or an affiliated service group
(as defined in Section 414(m) or in Section 414(o) of the
Code). If the Employer is a member of a related group, the
term "Employer" includes the related group members for purposes
of crediting Hours of Service, determining Years of Service and
Breaks in Service under Article II, applying participation and
coverage testing, applying the limitations on allocations in
Section 6.6, applying the top heavy rules and the minimum
allocation requirements of Article IX, the definitions of
Employee, Highly Compensated Employee, Compensation and Leased
Employee, and for any other purpose required by the applicable
Code section or by a Plan provision. However, an Employer may
contribute to the Plan only by signing the Adoption Agreement
or a Participation Agreement to the Employer's Adoption
Agreement. If one or more of the Employer's related group
members become Participating Employers by executing a
Participation Agreement to the Employer's Adoption Agreement,
the term "Employer" includes the participating related group
members for all purposes of the Plan, and "Plan Administrator"
means the Employer that is the signatory to the Adoption
Agreement.
If the Employer's Plan is a standardized Plan, all
Employees of the Employer or of any member of the Employer's
related group, are eligible to participate in the Plan,
irrespective of whether the related group member directly
employing the Employee is a Participating Employer. If the
Employer's Plan is a nonstandardized Plan, the Employer must
specify in Item B(5) of its Adoption Agreement, whether the
Employees of related group members that are not Participating
Employers are eligible to participate in the Plan. Under a
nonstandardized Plan, the Employer may elect to exclude from
the definition of "Compensation" for allocation purposes any
Compensation received from a related employer that has not
executed a Participation Agreement and whose Employees are not
eligible to participate in the Plan.
(LL) Self-employed Individual: An individual who has
Earned Income for the taxable year from the trade or business
for which the Plan is established; also, an individual who
would have had Earned Income but for the fact that the trade or
business had no Net Profits for the taxable year.
(MM) Spouse: The person to whom the Participant is
legally married at the relevant time. Notwithstanding the
foregoing, if selected in the Adoption Agreement, Spouse shall
only refer to an individual to whom a Participant has been
married to for a period of at least one year, ending at the
relevant time.
(NN) Stockholder-Employee: An employee or officer of an
electing small business (Subchapter S) corporation who owns (or
is considered as owning within the meaning of Section 318(a)(1)
of the Code), on any day during the taxable year of such
corporation, more than 5% of the outstanding stock of the
corporation.
(OO) Termination Date: The date on which a Participant's
employment is terminated as provided in Section 5.1.
(PP) Trustee: The entity specified in Item B(17) of the
Adoption Agreement, which shall be any bank or trust company
which is affiliated with KeyCorp. within the meaning of Section
1504 of the Code, each of which with full trust powers, and its
successors by merger or reorganization.
(QQ) Trust Fund: All assets held under the Plan by the
Trustee.
(RR) Valuation Date. The date on which the assets of the
Trust shall be valued, as provided for herein, with earning or
losses since the previous Valuation Date being credited, as
appropriate to Participant accounts. Notwithstanding anything
to the contrary in the Plan, the Valuation date shall be each
business day that the Trustee and the New York Stock Exchange
are each open for business, provided, however, that the Trustee
shall not be obligated to value the Trust in the event, through
circumstances beyond its control, appropriate prices may not be
obtained for the assets held in the Investment Funds.
(SS) Vesting Computation Period. The Vesting Computation
Period shall be the 12-consecutive month period selected by the
Employer in the Adoption Agreement.
(TT) Year of Participation: For purposes of vesting, a
twelve (12) month period in which an Employee has a balance in
an account established under a 401(k)/401(m) arrangement
regardless of whether the Employee is currently making
contributions under the arrangement.
(UU) Year of Service: (i) If the elapsed time method of
crediting service is elected in the Adoption Agreement, a Year
of Service will mean a one-year Period of Service. If the
actual hours method of crediting service is elected in the
Adoption Agreement, a Year of Service will mean a 12-
consecutive month period as specified in the Adoption Agreement
during which the Employee completes the number of Hours of
Service (not to exceed 1000) specified in the Adoption
Agreement.
1.2 GENDER AND NUMBER. Unless the context indicates
otherwise, the masculine shall include the feminine, and the use of
any words herein in the singular shall include the plural and vice
versa.
1.3 CONTROL OF TRADES OR BUSINESSES BY OWNER-EMPLOYEE. If
this Plan provides contributions or benefits for one or more Owner-
Employees who control both the business for which this Plan is
established and one or more other trades or businesses, this Plan
and the Plan established for other trades or businesses must, when
looked at as a single Plan, satisfy Sections 401(a) and (d) for the
employees of this and all other trades or businesses.
If the Plan provides contributions or benefits for one or more
Owner-Employees who control one or more other trades or businesses,
the employees of the other trades or businesses must be included in
a Plan which satisfies Sections 401(a) and (d) and which provides
contributions and benefits not less favorable than provided for
Owner-Employees under this Plan.
If an individual is covered as an Owner-Employee under the
plans of two or more trades or businesses which are not controlled
and the individual controls a trade or business, then the
contributions or benefits of the employees under the Plan of the
trades or businesses which are controlled must be as favorable as
those provided for him under the most favorable Plan of the trade or
business which is not controlled.
For purposes of the preceding paragraphs, an Owner-Employee, or
two or more Owner-Employees, will be considered to control a trade
or business if the Owner-Employee, or two or more Owner-Employees
together:
(1) Own the entire interest in an unincorporated trade or
business, or
(2) In the case of a partnership, own more than 50 percent
of either 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.
ARTICLE II
ELIGIBILITY AND VESTING
2.1 ELIGIBILITY.
(A) Participation. Every Employee who meets the
eligibility requirements specified by the Employer in the
Adoption Agreement shall become eligible to commence
participation in this Plan.
(B) Commencement of Participation.
(1) For purposes of Money Purchase Pension Plans,
Profit Sharing Plans and 401(k) Plans with Profit Sharing
Contributions, each Eligible Employee shall commence
participation on the Entry Date.
(2) For purposes of 401(k) and 401(m) arrangements,
an Eligible Employee may, but is not required to, enroll
as a Participant as of the Entry Date on which such
Employee is initially eligible by filing with the
Committee before such date, an enrollment form prescribed
by the Committee. The time period for filing an
enrollment form shall be determined by the Committee. The
form shall include an authorization and request to the
Employer to deduct from such Participant's Compensation
in each pay period the designated After Tax Contributions,
and/or to reduce such Participant's Compensation in each
pay period by the amount of the designated Before Tax
Contributions.
(C) Years of Service Counted Towards Eligibility. All
Years of Service with the Employer are counted toward
eligibility except the following:
(1) In a Plan which (a) requires an Employee to
complete more than one Year of Service as an eligibility
requirement and (b) provides immediate 100% vesting in a
Participant's Employer Contribution Account after not more
than two (2) Years of Service, if an Employee has a 1year
Break in Service before satisfying the Plan's requirement
for eligibility, service before such break will not be
taken into account.
(2) In the case of a Participant who does not have
any nonforfeitable right to the account balance derived
from Employer contributions, Years of Service before a
period of consecutive 1year Breaks in Service will not be
taken into account in computing eligibility service if the
number of consecutive 1year Breaks in Service i n such
period equals or exceeds the greater of 5 or the aggregate
number of Years of Service. Such aggregate number of
Years of Service will not include any Years of Service
disregarded under the preceding sentence by reason of
prior Breaks in Service.
(3) If a Participant's Years of Service are
disregarded pursuant to the preceding paragraph, such
Participant will be treated as a new Employee for
eligibility purposes. If a Participant's Years of Service
may not be disregarded pursuant to the preceding
paragraph, such Participant shall continue to participate
in the Plan, or, if terminated, shall participate
immediately upon reemployment.
(D) Eligibility Break in Service, One Year Hold-Out Rule.
If the Plan is a nonstandardized Plan, then:
(1) In the case of any Participant who has a 1year
Break in Service or Severance, years of eligibility
service before such break will not be taken into account
until the Employee has completed a Year of Service after
returning to employment.
(2) For plans in which the eligibility computation is
measured with reference to the Employment Commencement
Date, such Year of Service will be measured beginning on
the Employee's Reemployment Commencement Date and, if
necessary, subsequent 12-consecutive month periods
beginning on anniversaries of the Reemployment
Commencement Date.
(3) For plans which shift the Eligibility Computation
Period to the Plan Year, such Year of Service will be
measured by the 12-consecutive month period beginning on
the Employee's Reemployment Commencement Date and, if
necessary, Plan Years beginning with the Plan Year which
includes the first anniversary of the Reemployment
Commencement Date.
(4) If a Participant completes a Year of Service in
accordance with this provision, his or her participation
will be reinstated as a Participant as of the Reemployment
Commencement Date.
(E) Participation Upon Return to Eligible Class.
(1) In the event a Participant is no longer a member
of an eligible class of Employees and becomes ineligible
to participate but has not incurred a Break In Service,
such Employee shall participate immediately upon returning
to an eligible class of Employees. If such Participant
incurs a Break In Service eligibility will be determined
under the Break in Service rules of the Plan.
(2) In the event an Employee who is not a member of
an eligible class of Employees becomes a member of an
eligible class, such Employee will participate immediately
if such Employee has satisfied the minimum age and service
requirements and would have otherwise previously become a
Participant.
2.2 VESTING.
(A) Vesting Schedule. In the case of an Employee who
terminates participation under this Plan for any reason other
than death, Disability, or employment at the Normal Retirement
Date, such Participant, as of the last day of his participation
under this Plan, shall have a vested interest in his Employer
Contribution Account pursuant to the formula specified by the
Employer in the Adoption Agreement.
(B) Vesting Upon Normal Retirement Date. Notwithstanding
the vesting schedule elected by the Employer in Items B(7)(a)
or C(4)(d) of the Adoption Agreement, an Employee's right to
his or her Employer Contribution balance shall be
nonforfeitable at the Employee's Normal Retirement Date.
(C) Vesting Break in Service 1 Year Holdout. In the case
of any Participant who has incurred a 1year Break in Service,
Years of Service before such break will not be taken into
account until the Participant has completed a Year of Service
after such Break in Service.
(D) Vesting for Pre-Break and Post-Break Account. In the
case of a Participant who has 5 or more consecutive 1year
Breaks in Service, all service after such Breaks in Service
will be disregarded for the purpose of vesting the employer-
derived account balance that accrued before such Breaks in
Service. Such Participant's pre-break service will count in
vesting the post-break employer-derived account balance only if
either:
(1) such Participant has any nonforfeitable interest
in the account balance attributable to employer
contributions at the time of separation from service; or
(2) upon returning to service the number of
consecutive 1year Breaks in Service is less than the
number of Years of Service. Separate accounts will be
maintained for the Participant's pre-break and post-break
Employer Contribution Account balance. Both accounts will
share in the earnings and losses of the Trust Fund.
(E) Amendment of Vesting Schedule. If the Plan's vesting
schedule is amended, or the Plan is amended in any way that
directly or indirectly affects the computation of the
Participant's nonforfeitable percentage or if the Plan is
deemed amended by an automatic change to or from a top-heavy
vesting schedule, each Participant with at least three (3)
Years of Service with the Employer may elect within a
reasonable period after the adoption of the amendment or
change, to have the nonforfeitable percentage computed under
this Plan without regard to such amendment or change. For
Participants who do not have at least 1 Hour of Service in any
Plan Year beginning after December 31, 1988, the preceding
sentence shall be applied by substituting "5 Years of Service"
for "3 Years of Service" where such language appears.
This period during which the election may be made shall
commence with the date the amendment is adopted or deemed to be
made and shall end on the latest of:
(1) Sixty (60) days after the amendment is adopted;
(2) Sixty (60) days after the amendment becomes
effective; or
(3) Sixty (60) days after the Participant is issued
written notice of the amendment by the Employer or
Committee.
(F) Amendment Affecting Vested and/or Accrued Benefits.
No amendment to the Plan shall be effective to the extent that
it has the effect of decreasing a Participant's accrued
benefit. Notwithstanding the preceding sentence, a
Participant's account balance may be reduced to the extent
permitted under Section 412(c)(8) of the Code. For purposes of
this paragraph, a Plan amendment which has the effect of
decreasing a Participant's account balance or eliminating an
optional form of benefit, with respect to benefits attributable
to service before the amendment shall be treated as reducing an
accrued benefit. Furthermore, if the vesting schedule of a
Plan is amended, in the case of an Employee who is a
Participant as of the later of the date such amendment is
adopted or the date it becomes effective, the nonforfeitable
percentage (determined as of such date) of such Employee's
Employer-derived accrued benefit will not be less than the
percentage computed under the Plan without regard to such
amendment.
ARTICLE III
CODE 401(k) AND CODE 401(m) ARRANGEMENTS
3.1 PROVISION RELATING TO BOTH BEFORE TAX CONTRIBUTIONS AND
AFTER TAX CONTRIBUTIONS.
(A) Definitions: The following definitions are applicable
to this Article of the Plan.
(1) Actual Deferral Percentage or ADP: for a
specified group of Participants for a Plan Year, the
average of the ratios (calculated separately for each
Participant in such group) of (1) the amount of Employer
contributions actually paid over to the trust on behalf of
such Participant for the Plan Year to (2) the
Participant's Compensation for such Plan Year (whether or
not the Employee was a Participant for the entire Plan
Year, but limited to that portion of the Plan Year in
which the Employee was an Eligible Participant if the
Employer so elects for such Plan Year to so limit
Compensation for all Eligible Employees). Employer
contributions on behalf of any Participant shall include
(1) any Before Tax Contributions made pursuant to the
Participant's deferral election, including Excess Before
Tax Contributions, but excluding Before Tax Contributions
that are taken into account in the Contribution Percentage
test (provided the ADP test is satisfied both with and
without exclusion of these Before Tax Contributions); and
(2) at the election of the Employer, Qualified Nonelective
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 Before Tax Contributions shall be treated as a
participant on whose behalf no Before Tax Contributions
are made.
(2) After Tax Contributions ("Employee
Contributions"): Any 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.
(3) Aggregate Limit: The sum of (i) 125 percent of
the greater of the ADP of the Nonhighly Compensated
Employees for the Plan Year or the ACP of Nonhighly
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 and (ii)
the lesser of 200% or two plus the lesser of such ADP or
ACP. "Lesser" is substituted for "greater" in "(i)",
above, and "greater" is substituted for "lesser" after
"two plus the" in "(ii)" if it would result in a larger
Aggregate Limit.
(4) Average Contribution Percentage or ACP: the
average (expressed as a percentage) of the Contribution
Percentages of the Eligible Participants in a group.
(5) Before Tax Contributions ("Elective Deferrals"):
Employer contributions made to the Plan at the election of
the Participant, in lieu of cash compensation, which shall
include contributions made pursuant to a salary reduction
agreement or other deferral mechanism. With respect to
any taxable year, a Participant's Before Tax Contributions
are 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
Section 401(k) of the Code, 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 457, any Plan as described under Code Section
501(c)(18), and any Employer contributions made on behalf
of a Participant for the purchase of an annuity contract
under Code Section 403(b) pursuant to a salary reduction
agreement.
(6) Contribution Percentage: The ratio (expressed as
a percentage) of the Participant's Contribution Percentage
Amounts to the Participant's Compensation for the Plan
Year (whether or not the Employee was a Participant for
the entire Plan Year, but limited to that portion of the
Plan Year in which the Employee was an Eligible
Participant if the Employer so elects for such Plan Year
to so limit Compensation for all Eligible Employees).
(7) Contribution Percentage Amounts: The sum of the
After Tax 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. Such
Contribution Percentage Amounts shall not include Matching
Contributions that are forfeited either to correct Excess
Aggregate Contributions or because the contributions to
which they relate are Excess Before Tax Contributions,
Excess Contributions or Excess Aggregate Contributions.
If so elected in the Adoption Agreement the Employer may
include Qualified Nonelective Contributions in the
Contribution Percentage Amounts. The Employer also may
elect to use Before Tax Contributions in the Contribution
Percentage Amounts so long as the ADP test is met before
the Before Tax Contributions are used in the ACP test and
continues to be met following the exclusion of those
Before Tax Contributions that are used to meet the ACP
test.
(8) Eligible Participant: Any Employee who is
eligible to make an After Tax Contribution or a Before Tax
Contribution (if the Employer takes such contributions
into account in the calculation of the Contribution
Percentage), or to receive a Matching Contribution
(including forfeitures) or a Qualified Matching
Contribution. If an After Tax Contribution is required as
a condition of participation in the Plan, any Employee who
would be a Participant in the Plan if such Employee made
such a contribution shall be treated as an eligible
Employee on behalf of whom no After Tax Contributions are
made.
(9) Excess Aggregate Contributions: With respect to
any Plan Year, the excess of:
(a) The aggregate Contribution Percentage
Amounts taken into account in computing the numerator
of the Contribution Percentage actually made on
behalf of Highly Compensated Employees for such Plan
Year, over
(b) The maximum Contribution Percentage Amounts
permitted by the ACP test (determined by reducing
contributions made on behalf of Highly Compensated
Employees in order of their Contribution Percentages
beginning with the highest of such percentages).
Such determination shall be made after first
determining Excess Before Tax Contributions pursuant to
Section 3.2(D) and (E) and then determining Excess
Contributions pursuant to section 3.2(F), (G) and (H).
(10) Excess Before Tax Contributions ("Excess
Elective Deferrals"): Those Before Tax Contributions that
are includible in a Participant's gross income under
Section 402(g) of the Code to the extent such
Participant's Before Tax Contributions for a taxable year
exceed the dollar limitation under such Code section.
Excess Before Tax Contributions shall be treated as Annual
Additions under the Plan, unless such amounts are
distributed no later than the first April 15 following the
close of the Participants taxable year. Excess Before Tax
Contributions shall be adjusted for income or loss up to
the end of the taxable year of the Employee, and if
elected in the Adoption Agreement, for the income or loss
attributable to the period from the end of the Employee's
taxable year to the date of distribution (the "Gap
Period"). The income or loss allocable to Excess Before
Tax Contributions is (1) the income or loss allocable to
the Participant's Before Tax Contribution Account for the
taxable year multiplied by a fraction, the numerator of
which is such Participant's Excess Before Tax
Contributions for the year and the denominator is the
Participant's account balance attributable to Before Tax
Contributions without regard to any income or loss
occurring during such taxable year plus, (2) if Gap Period
income or loss applies, ten percent of the amount
determined under (1) multiplied by the number of whole
calendar months between the end of the Participant's
taxable year and the date of distribution, counting the
month of distribution if distribution occurs after the
15th of such month.
(11) Excess Contributions: 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 Employee 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
Employee in order of the ADPs, beginning with the
highest of such percentages).
(12) Matching Contributions: An Employer
contribution made to this or any other defined
contribution Plan on behalf of a Participant on account of
an After Tax Contribution made by such Participant, or on
account of a Participant's Before Tax Contribution, under
a Plan maintained by the Employer.
(13) Qualified Matching Contributions: Matching
Contributions which are subject to the distribution and
nonforfeitability requirements under Section 401(k) of the
Code when made. Qualified Matching Contributions shall be
allocated, in the discretion of Employer, to the accounts
of all Employees, or only to the accounts of Non-highly
Compensated Employees.
(14) Qualified Nonelective 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 Before Tax Contributions
and Qualified Matching Contributions. Qualified Non-
elective Contributions shall be allocated, in the
discretion of Employer, to the accounts of all Employees,
or only to the accounts of Non-highly Compensated
Employees.
(B) Nonforfeitability and Vesting. The Participant's
accrued benefits derived from Before Tax Contributions and
After Tax Contributions are nonforfeitable and fully vested.
(C) Notice to Committee. The Committee shall set the time
period during which a Participant may provide written notice to
increase, decrease or terminate Before Tax Contributions and
After Tax Contributions.
(D) Suspension After Receipt of Hardship Distribution. If
the Employer has elected in the Adoption Agreement to have the
"safe harbor" hardship rules apply, an Employee's Before Tax
Contributions and After Tax Contributions shall be suspended
for twelve months after the receipt by such Employee of a
Hardship distribution (as defined in Section 3.9) from this
Plan or any other Plan maintained by the Employer.
(E) Separate Accounts. Separate accounts for Before Tax
Contributions and After Tax Contributions will be maintained
for each Participant. Each account will be credited with the
applicable contributions and earnings thereon.
3.2 BEFORE TAX CONTRIBUTIONS. (ELECTIVE DEFERRALS).
(A) Allocation of Before Tax Contributions. If the
Employer selects Item C(2) in the Adoption Agreement, for each
Plan Year the Employer will contribute and allocate to each
Participant's Before Tax Contribution Account an amount equal
to the amount of the Participant's Before Tax Contributions.
The provisions of the cash or deferred arrangement may be made
effective as of the first day of the Plan Year in which the
cash or deferred option is adopted, however, under no
circumstances may a salary reduction agreement or other
deferral mechanism be adopted retroactively. Before Tax
Contributions must be contributed and allocated to the Plan no
later than thirty (30) days after the close of the Plan Year
for which the contributions are deemed to be made, or such
other time as provided in applicable regulations under the
Code.
(B) Before Tax Contributions Pursuant to a Salary
Reduction Agreement. To the extent provided in the Adoption
Agreement, a Participant may elect to have Before Tax
Contributions made under this Plan. Before Tax Contributions
shall be continuing contributions through payroll deduction
made pursuant to a salary reduction agreement.
(1) Commencement of Before Tax Contributions. An
Employee may elect to commence Before Tax Contributions as
of his or her Entry Date as described in Section 2.1(B).
Such election shall not become effective before the Entry
Date. Such election may not be made retroactively.
(2) Modification and Termination of Before Tax
Contributions. A Participant's election to commence
Before Tax Contributions shall remain in effect until
modified or terminated. A Participant may increase or
decrease his or her Before Tax Contributions as of any
date as selected by the Employer in Item C(3) of the
Adoption Agreement upon notice to the Committee. A
Participant may terminate his or her election to make
Before Tax Contributions as of the Participant's next wage
payment date upon notice to the Committee. Any
Participant who terminates Before Tax Contributions may
elect to recommence making Before Tax Contributions as of
the date selected by the Employer in Item C(3) of the
Adoption Agreement following his or her suspension of
contributions.
(C) Cash bonuses. If Item C(2)(c) of the Adoption
Agreement is selected, a Participant may also enter into a
salary reduction agreement on cash bonuses that, directing that
the amount of such salary reduction be contributed to the Plan
as a Before Tax Contribution, or received by the Participant in
cash. A Participant shall be afforded a reasonable period to
elect to defer amounts described in this Section 3.2 to the
Plan. Such election shall not become effective before the
Participant's Entry Date.
(D) Maximum Amount of Before Tax Contributions. A
Participant's Before Tax Contributions are subject to any
limitations imposed in Item C(2) of the Adoption Agreement,
calculated on an annual basis, and any further limitations
under the Plan. No Participant shall be permitted to have
Before Tax Contributions made under this Plan, or any other
qualified Plan maintained by the Employer, during any taxable
year in excess of the dollar limitation contained in Code
Section 402(g) in effect at the beginning of such taxable year.
Furthermore, if an Employee receives a Hardship distribution
(as defined in Section 3.9, utilizing the "safe harbor" rules)
from this Plan or any other Plan maintained by the Employer,
the Employee may not make Before Tax Contributions for the
Employee's taxable year immediately following the taxable year
of the Hardship distribution in excess of the applicable limit
under Section 402(g) of the Code for such taxable year less the
amount of the Employee's Before Tax Contributions for the
taxable year of the Hardship distribution.
(E) Distribution of Excess Before Tax Contributions. If a
Participant makes Before Tax Contributions to this Plan and to
another Plan, and the Participant has made Excess Before Tax
Contributions to one or more of the plans, the Participant may
assign the amount of any such Excess Before Tax Contributions
among the plans under which such Before Tax Contributions were
made. The Participant may assign to this Plan any Excess
Before Tax Contributions made during a taxable year of the
Participant to this Plan by notifying the Committee on or
before the date specified in the Adoption Agreement of the
amount of the Excess Before Tax Contributions to be assigned to
the Plan. A Participant is deemed to notify the Committee of
any Excess Before Tax Contributions that arise by taking into
account only those Before Tax Contributions made under the Plan
or Plans of this Employer.
Notwithstanding any other provision of the Plan, Excess
Before Tax Contributions, plus any income and minus any loss
allocable thereto, shall be distributed no later than April 15
to any Participant to whose account Excess Before Tax
Contributions were assigned for the preceding year and who
claims Excess Before Tax Contributions for such taxable year.
The Participant's claim shall be in writing; shall be
submitted to the Committee not later than the date elected in
Item CC of the Adoption Agreement; shall specify the amount of
the Participant's Excess Before Tax Contribution for the
preceding calendar year; and shall be accompanied by the
Participant's written statement that if such amounts are not
distributed, such Excess Before Tax Contributions, when added
to amounts deferred under other plans or arrangements described
in Sections 401(k), 408(k), or 403(b) of the Code, will exceed
the limit imposed on the Participant by Section 402(g) of the
Code for the year in which the deferral occurred.
(F) Actual Deferral Percentage. The ADP for Participants
who are Highly Compensated Employees for each Plan Year and the
ADP for Nonhighly Compensated Employees for the same Plan Year
must satisfy one of the following tests:
(1) 1.25 Limit. The ADP for Participants who are
Highly Compensated Employees for the Plan Year shall not
exceed the ADP for Participants who are Nonhighly
Compensated Employees for the same Plan Year multiplied by
1.25; or
(2) 2.0 Limit. The ADP for Participants who are
Highly Compensated Employees for the Plan Year shall not
exceed the ADP for Participants who are Nonhighly
Compensated Employees for the same Plan Year multiplied by
2.0, provided that the ADP for Participants who are Highly
Compensated Employees does not exceed the ADP for
Participants who are Nonhighly Compensated Employees by
more than two (2) percentage points.
(3) Special Rules.
(a) The ADP for any Participant who is a Highly
Compensated Employee for the Plan Year and who is
eligible to have Before Tax Contributions (and
Qualified Nonelective Contributions, or Qualified
Matching Contributions, or both, if treated as
Elective Deferrals for purposes of the ADP test)
allocated to his or her accounts under two or more
arrangements described in Section 401(k) of the Code,
that are maintained by the Employer, shall be
determined as if such Before Tax Contributions (and,
if applicable, such Qualified Nonelective
Contributions or Qualified Matching Contributions, or
both,) were made under a single arrangement. If a
Highly Compensated Employee participates in two or
more cash or deferred arrangements that have
different Plan Years, all cash or deferred
arrangements ending with or within the same calendar
year shall be treated as a single arrangement.
(b) In the event that this Plan satisfies the
requirements of Sections 401(k), 401(a)(4), or 410(b)
of the Code only if aggregated with one or more other
plans, or if one or more other plans satisfy the
requirements of such Sections of the Code only if
aggregated with this Plan, then this section shall be
applied by determining the ADP of Employees as if all
such plans were a single Plan. For Plan Years
beginning after December 31, 1989, plans may be
aggregated in order to satisfy Section 401(k) of the
Code only if they have the same Plan Year.
(c) For purposes of determining the ADP of a
Participant who is a 5percent owner or one of the ten
most highly-paid Highly Compensated Employees, the
Before Tax Contributions (and Qualified Nonelective
Contributions or Qualified Matching Contributions, or
both, if treated as Before Tax Contributions for
purposes of the ADP test) and Compensation of such
Participant shall include the Before Tax
Contributions (and, if applicable, Qualified
Nonelective Contributions) and Compensation for the
Plan Year of Family Members (as defined in Section
414(q)(6) of the Code). Family Members, with respect
to such Highly Compensated Employees, shall be
disregarded as separate employees in determining the
ADP both for Participants who are Nonhighly
Compensated Employees and for Participants who are
Highly Compensated Employees.
(d) For purposes of determining the ADP test,
Before Tax Contributions if treated as Before Tax
Contributions and Qualified Nonelective Contributions
must be made before the last day of the twelvemonth
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 Nonelective
Contributions used in such test.
(f) The determination and treatment of the ADP
amounts of any Participant shall satisfy such other
requirements as may be prescribed by the Secretary of
the Treasury.
(G) Distribution of Excess Contributions. Notwithstanding
any other provision of the 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 Excess Contributions were
allocated for the preceding Plan Year. If such excess amounts
are distributed more than 21/2 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
of Participants who are subject to the Family Member
aggregation rules shall be allocated among the Family Members
in proportion to the Before Tax Contributions (and amounts
treated as Before Tax Contributions) of each Family Member that
is combined to determine the combined ADP.
Excess Contributions (including the amounts
recharacterized) shall be treated as Annual Additions under the
Plan.
(1) Determination of Income or Loss. The Excess
Contributions shall be adjusted for income or loss up to
the date of distribution. The income or loss allocable to
Excess Contributions is (1) the income or loss allocable
to the Participant's Before Tax Contribution Account (and,
if applicable, the Qualified Nonelective Contribution
Account or the Qualified Matching Contribution Account or
both) multiplied by a fraction, the numerator of which is
such Participant's Excess Contribution for the year and
the denominator is the Participant's account balance
attributable to Before Tax Contributions (and Qualified
Non-Elective Contributions or Qualified Matching
Contributions or both, if any of such contributions are
included in the ADP test) without regard to any income or
loss occurring during such taxable year, plus, (2) if Gap
Period income or loss applies, as elected in the Adoption
Agreement, ten percent of the amount determined under (1)
multiplied by the number of whole calendar months between
the end of the Plan Year and the date of distribution,
counting the month of distribution if distribution occurs
after the 15th of such month.
(2) Accounting for Excess Contributions. Excess
Contributions shall be distributed from the Participant's
Before Tax Contribution Account and Qualified Matching
Contribution Account (if applicable) in proportion to the
Participant's Before Tax Contributions and Qualified
Matching Contributions (to the extent used in the ADP
test) for the Plan Year. Excess Contributions shall be
distributed from the participant's Qualified Nonelective
Contribution Account only to the extent that such Excess
Contributions exceed the balance in the Participant's
Before Tax Contribution Account.
(H) Recharacterization. If the Plan permits After Tax
Contributions (Employee Contributions), Excess Contributions
may be recharacterized pursuant to this subsection.
Recharacterized amounts may be used in the Plan from which
Excess Contributions arose or in another Plan of the employer
with the same Plan Year.
(1) Treatment of Amounts Recharacterized. 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 Before
Tax Contributions. Amounts may not be recharacterized by
a Highly Compensated Employee to the extent that such
amount in combination with other After Tax Contributions
made by that Employee would exceed any stated limit under
the Plan on After Tax Contributions.
(2) Timing of Recharacterization. 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.
(I) Adjustments to Before Tax Contribution Percentages.
Anything to the contrary in this Article III notwithstanding,
the Committee shall have the right to reduce the percentages
designated pursuant to Section 3.2(B), of any one or more
Highly Compensated Employees in a manner prescribed or approved
by the Committee to the extent necessary or convenient to
ensure that at least one of the ADP tests set forth in Section
3.2(F) is satisfied, but in no event shall such reduction
result in a percentage less than zero. Any such reduction
shall be effected quarterly, or more frequently as the
Committee may determine and each affected Highly Compensated
Employee shall be deemed to have elected the permissible
percentage determined by the Committee. The Committee may, on
a prospective basis, and subject to the percentage limits of
Section 3.3 below, treat amounts contributed to the Plan
pursuant to a salary reduction agreement as After Tax
Contributions by each affected Highly Compensated Employee;
provided that if any such reduction cannot be so treated
because of the s aid percentage limits or because of the
nondiscrimination requirements of Code Section 401(m) or
otherwise, then the amount of such reduction (and any income
allocable thereto) shall be distributed to each affected Highly
Compensated Employee pursuant to Code Section 401(k)(8) or Code
Section 401(m)(6), if applicable, not later than the close of
the first 21/2 months of the Plan Year following the Plan Year
in which the contribution was made.
3.3 AFTER TAX CONTRIBUTIONS. (EMPLOYEE CONTRIBUTIONS).
(A) Allocation of After Tax Contributions. If the
Employer selects Item C(2)(b) in the Adoption Agreement, the
Employer will deduct from the Participant's pay and allocate to
each Participant's After Tax Contribution Account an amount
equal to the percentage of Compensation authorized by the
Participant as an After Tax Contribution. The Employer shall
transmit After Tax Contributions to the Trustee within thirty
(30) days after the month end in which such deductions are
made.
(B) Employee Authorizes After Tax Contributions. To the
extent provided in the Adoption Agreement, a Participant may
elect to make After Tax Contributions under the Plan.
(1) Election to Make After Tax Contributions. An
Employee may elect to make After Tax Contributions as of
his or her Entry Date as described in Section 2.1(B).
Such election will not become effective before the Entry
Date.
(2) Modification and Termination of After Tax
Contributions. A Participant's election to commence After
Tax Contributions shall remain in effect until modified or
terminated. A Participant may increase or decrease his or
her After Tax Contributions as selected by the Employer in
Item C(3) of the Adoption Agreement upon written notice to
the Committee. A Participant may terminate his or her
election to make After Tax Contributions at any time as of
the Participant's next wage payment date upon written
notice to the Committee. Any Participant who terminates
After Tax Contributions may elect to recommence making
After Tax Contributions as of the date selected by the
Employer in Item C(3) of the Adoption Agreement following
his or her suspension of contributions.
(C) Maximum Amount of After Tax Contributions. A
Participant's After Tax Contributions are subject to any
limitations imposed in Item C(3) of the Adoption Agreement,
calculated on an annual basis, and any further limitations
under the Plan.
(D) Cash Bonuses. If Item C(2)(c) of the Adoption
Agreement is selected, a Participant may also enter into a
salary reduction agreement on cash bonuses, directing that the
amount of such salary reduction be contributed to the Plan as
an After Tax Contribution, or received by the Participant in
cash. A Participant shall be afforded a reasonable period to
elect to defer amounts described in this Section 3.3 to the
Plan. Such election shall not become effective before the
Participant's Entry Date.
3.4 EMPLOYER CONTRIBUTIONS.
(A) Matching Contributions. If elected by the Employer in
the Adoption Agreement, the Employer will or may make Matching
Contributions to the Plan. The amount of such Matching
Contributions shall be calculated by reference to the
Participants' Before Tax Contributions and/or After Tax
Contributions as specified by the Employer in the Adoption
Agreement.
(B) Qualified Matching Contributions. If elected by the
Employer in the Adoption Agreement, the Employer may make
Qualified Matching Contributions to the Plan.
In addition, in lieu of distributing Excess Contributions
as provided in Section 3.2(G) of the Plan, or Excess Aggregate
Contributions as provided in Section 3.5(C) of the Plan, the
Employer may make Qualified Matching Contributions on behalf of
Employees that are sufficient to satisfy either the Actual
Deferral Percentage or the Average Contribution Percentage
test, or both, pursuant to regulations under the Code.
(C) Qualified Nonelective Contributions. If elected by
the Employer in the Adoption Agreement, the Employer may make
Qualified Non-elective Contributions to the Plan.
In addition, in lieu of distributing Excess Contributions
as provided in Section 3.2(G) of the Plan, or Excess Aggregate
Contributions as provided in Section 3.5(C) of the Plan, the
Employer may make Qualified Nonelective Contributions on behalf
of Employees that are sufficient to satisfy either the Actual
Deferral Percentage or the Average Contribution Percentage
test, or both, pursuant to regulations under the Code.
(D) Separate Accounts. An Employer Matching Account shall
be maintained for a Participant's accrued benefit attributable
to Matching Contributions. A Qualified Matching Contribution
Account shall be maintained for a Participant's accrued benefit
attributable to Qualified Matching Contributions. A Qualified
Nonelective Contribution Account shall be maintained for a
Participant's accrued benefit attributable to Qualified
Nonelective Contributions. Such accounts shall be credited
with the applicable contributions, earnings and losses,
distributions, and other adjustments.
(E) Vesting. Matching Contributions will be vested in
accordance with the Employer's election in Items C(4)(d) and
C(4)(e) of the Adoption Agreement. In any event, Matching
Contributions shall be fully vested at Normal Retirement Date,
upon the complete or partial termination of the Plan, or upon
the complete discontinuance of Matching Contributions, as
applicable. Qualified Nonelective Contributions and Qualified
Matching Contributions are nonforfeitable when made.
(F) Forfeitures. Forfeitures of Matching Contributions
shall be used to reduce such contributions, or shall be
allocated to Participants, in accordance with the Employer's
election in Item C(6) of the Adoption Agreement.
(G) Allocation of Discretionary Matching Contributions. If
the Employer selects Item C(4)(b) in the Adoption Agreement,
any discretionary Matching Contributions shall be allocated as
of the allocation date specified in Item C(4)(c)(ii) of the
Adoption Agreement, to the Employer Matching Account of each
Participant who has made Before Tax Contributions and/or After
Tax Contributions eligible for matching. If Item
C(4)(c)(ii)(e) has been selected (imposing a last day of the
Plan Year requirement) the allocation shall be made to a
Participant who (1) if a Participant in a nonstandardized Plan,
is employed or on leave of absence on the last day of the Plan
Year, and (2) if a Participant in a standardized Plan, either
completes more than 500 Hours of service during the Plan Year
or is employed on the last day of the Plan Year. The following
Participants will also share in the Matching Contributions for
the year, if elected in the Adoption Agreement: (1)
Participants in a nonstandardized Plan whose employment
terminated before the end of the Plan Year because of
retirement, death, disability or as specified in the Adoption
Agreement, and (2) Participants in a standardized Plan whose
employment terminated before the end of the Plan Year because
of retirement, death, disability or as specified in the
Adoption Agreement, and completed 500 Hours of Service or less.
Notwithstanding the foregoing, if the Employer makes a
contribution prior to the end of the Plan Year, Participants
shall be entitled to an allocation of that contribution when
made, without regard to any end of the Plan Year requirement.
(H) Limitation on Employer Contributions. The Employer's
contributions for any Plan Year shall not exceed the maximum
amount which the Employer may deduct pursuant to Section 404 of
the Code.
3.5 LIMITATIONS ON AFTER TAX CONTRIBUTIONS (EMPLOYEE
CONTRIBUTIONS) AND MATCHING CONTRIBUTIONS.
(A) Contribution Percentage. The ACP for Participants who
are Highly Compensated Employees for each Plan Year and the ACP
for Participants who are Nonhighly Compensated Employees for
the same Plan Year must satisfy one of the following tests:
(1) 1.25 Limit. The ACP for Participants who are
Highly Compensated Employees for the Plan Year shall not
exceed the ACP for Participants who are Nonhighly
Compensated Employees for the same Plan Year by 1.25, or
(2) 2.0 Limit. The ACP for Participants who are
Highly Compensated Employees for the Plan Year shall not
exceed the ACP for Participants who are Nonhighly
Compensated Employees for the same Plan Year multiplied by
two (2), provided that the ACP for Participants who are
Highly Compensated Employees does not exceed the ACP for
Participants who are Nonhighly Compensated Employees by
more than two (2) percentage points.
(B) Special Rules.
(1) Multiple Use. 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 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 ACP is the
highest) 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 Compensated Employees are determined after any
corrections required to meet the ADP and ACP tests.
Multiple use does not occur if either the ADP and ACP of
the Highly Compensated Employees does not exceed 1.25
multiplied by the ADP and ACP of the Nonhighly Compensated
Employees.
(2) Aggregation of Contribution Percentages. For
purposes of this section, the Contribution Percentage for
any Participant who is a Highly Compensated Employee and
who is eligible to have Contribution Percentage Amounts
allocated to his or her accounts under two or more plans
described in Section 401(a) of the Code, or arrangements
described in Section 401(k) of the Code, that are
maintained by the Employer, shall be determined as if the
total of such Contribution Percentage 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. Notwithstanding
the foregoing, certain plans shall be treated as separate
if mandated to be disaggregated under regulations under
Section 401(m) of the Code.
(3) Aggregation of Plans. In the event that this
Plan satisfies the requirements of Sections 401(m),
401(a)(4) or 410(b) of the Code only if aggregated with
one or more other plans, or if one or more other plans
satisfy the requirements of such sections of the Code only
if aggregated with this Plan, then this section shall be
applied by determining the Contribution Percentage of
Employees as if all such plans were a single Plan. For
Plan Years beginning after December 31, 1989, plans may be
aggregated in order to satisfy Section 401(m) of the Code
only if they have the same Plan Year.
(4) Family Aggregation. 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 Employee shall include
the Contribution Percentage Amounts and Compensation for
the Plan Year of Family Members, as defined in Section
414(q)(6) of the Code. Family Members, with respect to
Highly Compensated Employees, shall be disregarded as
separate employees in determining the Contribution
Percentage both for Participants who are Nonhighly
Compensated Employees and for Participants who are Highly
Compensated Employees.
(5) Time of Contributions. For purposes of
determining the Contribution Percentage test, After Tax
Contributions are considered to have been made in the Plan
Year in which contributed to the Trust. Matching
Contributions and Qualified Nonelective Contributions will
be considered made for a Plan Year if made no later than
the end of the twelvemonth period beginning on the day
after the close of the Plan Year.
(6) Records. The Employer shall maintain records
sufficient to demonstrate satisfaction of the ACP test and
the amount of Qualified Nonelective Contributions or
Qualified Matching Contributions, or both, used in such
test.
(7) Regulations. 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.
(C) Distribution of Excess Aggregate Contributions.
(1) General Rule. 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 Excess Aggregate
Contributions were allocated for the preceding Plan Year.
Excess Aggregate Contributions of Participants who are
subject to the Family Member aggregation rules shall be
allocated among the Family Members in proportion to the
After Tax and Matching Contributions (or amounts treated
as Matching Contributions) of each Family Member that is
combined to determine the combined ACP. If such Excess
Aggregate Contributions are distributed more than 21/2
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.
(2) Determination of Income or Loss. Excess
Aggregate Contributions shall be adjusted for income or
loss up to the date of distribution. The income or loss
allocable to Excess Aggregate Contributions is the sum of:
(1) income or loss allocable to the Participant's After
Tax Contribution Account, Matching Contribution Account,
Qualified Matching Contribution Account, (if any, and if
all amounts therein are not used in the ADP test) and, if
applicable, the Qualified Nonelective Contribution Account
and Before Tax Contribution Account for the Plan Year
multiplied by a fraction, the numerator of which is such
Participant's Excess Aggregate Contributions for the year
and the denominator is the Participant's account
balance(s) attributable to Contribution Percentage Amounts
without regard to any income or loss occurring during such
Plan Year; and (2) ten percent of the amount determined
under (1) multiplied by the number of whole calendar
months between the end of the Plan Year and the date of
distribution, counting the month of distribution if
distribution occurs after the 15th of such month.
(3) Forfeitures of Excess Aggregate Contributions.
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 Item C(6)(c) of the Adoption
Agreement.
(4) Accounting for Excess Aggregate Contributions.
Excess Aggregate Contributions shall be forfeited, if
forfeitable, or distributed on a pro rata basis from the
Participant's After Tax Contribution Account and Matching
Contribution Account and Qualified Matching Contribution
Account (and, if applicable, the Participant's Qualified
Nonelective Contribution Account and Before Tax
Contribution Account, or both).
3.6 NET PROFITS NOT REQUIRED IF SO ELECTED IN ADOPTION
AGREEMENT. If the Employer elects, Matching Contributions may be
made without regard to Net Profits in accordance with Item
C(4)(c)(iii) of the Adoption Agreement. If the Plan is a profit-
sharing Plan, the Plan shall continue to be designed to qualify as a
profitsharing Plan for purposes of Sections 401(a), 402, 412, and
417 of the Code. Net Profits shall not be required for Before Tax
Contributions or After Tax Contributions to be made to the Plan.
3.7 FORM, PAYMENT AND ALLOCATION OF CONTRIBUTIONS. All
contributions under this Article III made for a Plan Year shall be
made in cash, and shall be delivered to the Trustee at such time or
times as shall be agreed upon between the Committee and the Trustee.
The Committee shall instruct the Trustee as to the allocation of
contributions to the Participant's accounts.
3.8 DISTRIBUTION REQUIREMENTS FOR BEFORE TAX CONTRIBUTION
ACCOUNT. Before Tax Contributions, Qualified Nonelective
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, Beneficiary's or Beneficiaries' election, earlier
than upon separation from service, death, disability, or as selected
in the Adoption Agreement. Such amounts may not be distributed
unless in accordance with the Participant's election made pursuant
to rules established by the Committee as authorized in the Adoption
Agreement, and upon:
(A) Termination of the Plan without the establishment of
another defined contribution Plan, other than an employee stock
ownership Plan (as defined in Section 4975(e) or Section 409 of
the Code) or a simplified employee pension Plan as defined in
Section 408(k).
(B) The disposition by a corporation to an unrelated
corporation of substantially all of the assets (within the
meaning of Section 409(d)(2) of the Code) 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 Section 409(d)(3) of the Code) 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 591/2 in the case of a
profitsharing Plan, or the attainment of the Plan's Normal
Retirement Date, if either or both are selected in the Adoption
Agreement.
(E) The Hardship of the Participant as described in
Section 3.9, if selected in the Adoption Agreement.
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 Sections 411(a)(11) and 417 of the Code. In
addition, distributions after March 31, 1988, that are
triggered by any of the first three events above, in Sections
3.8(A), (B) and (C) must be made in a lump sum.
3.9 HARDSHIP DISTRIBUTION.
(A) Amount Available for Withdrawal. Upon the written
request of a Participant received and approved by the
Committee, a Participant may withdraw, in cash, up to one
hundred per cent (100%) of the amount of such Participant's
Before Tax Contributions (and any earnings credited to a
Participant's account as of the end of the last Plan Year
ending before July 1, 1989) or such lesser amount as the
Committee may approve, in the event of Hardship. For purposes
of this Section, Hardship is defined as immediate and heavy
financial need of the Employee where such Employee lacks other
available resources. Hardship distributions are subject to the
spousal consent requirements contained in Sections 411(a)(11)
and 417 of the Code. The Committee is authorized to and shall
request from the Participant making such a request such
evidence as the Committee deems necessary and appropriate to
substantiate a Hardship, the amount of expenses resulting from
such Hardship and the other resources of the Participant
reasonably available to meet such expenses.
(B) Special Rules:
(1) Immediate and Heavy Need. The following are the
only financial needs considered immediate and heavy:
expenses incurred or necessary for medical care, described
in Section 213(d) of the Code, of the Employee, the
Employee's Spouse or dependents; the purchase (excluding
mortgage payments) of a principal residence for the
Employee; payment of tuition and related educational fees
for the next twelve months of post-secondary education for
the Employee, the Employee's Spouse, children or
dependents; or the need to prevent the eviction of the
Employee from, or a foreclosure on the mortgage of, the
Employee's principal residence.
(2) Satisfaction of Need. A distribution will be
considered as necessary to satisfy an immediate and heavy
financial need of the Employee only if:
(a) The Employee has obtained all distributions,
other than Hardship distributions, and all
nontaxable loans under all plans maintained by the
Employer;
(b) All plans maintained by the Employer provide
that the Employee's Before Tax Contributions (and
After Tax Contributions) will be suspended for twelve
months after the receipt of the Hardship
distribution;
(c) The distribution is not in excess of an
immediate and heavy financial need (including amounts
necessary to pay any federal, state or local income
taxes or penalties reasonably anticipated to result
from the distribution); and
(d) All plans maintained by the Employer provide
that the Employee may not make Before Tax
Contributions for the Employee's taxable year
immediately following the taxable year of the
Hardship distribution in excess of the applicable
limit under Section 402(g) of the Code for such
taxable year less the amount of such Employee's
Before Tax Contributions for the taxable year of the
Hardship distribution.
(3) Taxes and Penalties. The amount of an immediate
and heavy financial need may include any amounts necessary
to pay any federal, state or local income taxes or
penalties reasonably anticipated to result from the
distribution.
3.10 WITHDRAWAL OF AFTER TAX CONTRIBUTIONS. Subject to the
provisions of the Plan, in accordance with rules for giving notice
as determined by the Committee, a Participant may withdraw as of the
first Accounting Date subsequent to receipt by the Committee of such
notice:
(A) Maximum Amount. An amount equal to not more than 100%
of the Participant's After Tax Contribution Account determined
as of such Accounting Date. No Participant who has made any
withdrawal of After Tax Contributions in the twelve (12) months
preceding the giving of such notice may make a withdrawal under
this Section. A Participant who makes a withdrawal of After
Tax Contributions shall be required to suspend After Tax
Contributions for a period of six (6) months, commencing with
the effective date of such withdrawal. A Participant may,
pursuant to Article III, elect to commence After Tax
Contributions as of the first day of the first payroll period
of the month following the conclusion of such suspension
period, or the first payroll period of any month thereafter,
upon advance written notice to the Committee.
(B) Minimum Amount. Notwithstanding anything to the
contrary in this Section 3.10, any withdrawal made pursuant to
Section 3.10(A) shall be for a minimum whole dollar amount not
less than Five Hundred Dollars ($500.00); except that if the
amount available for withdrawal is less than Five Hundred
Dollars ($500.00) then the minimum amount of the withdrawal
shall be the amount available.
(C) Forfeitures. No forfeitures will occur solely as a
result of an Employee's withdrawal of After Tax Contributions.
(D) Loan Security. Notwithstanding anything to the
contrary in this Section 3.10, a Participant may not make a
withdrawal pursuant to this Section of any portion of the
Participants vested interest which has been assigned to secure
repayment of a loan in accordance with Section 11.10, below,
until such time as the Committee shall have released said
portion so assigned.
3.11. WITHDRAWAL OF MATCHING CONTRIBUTIONS. Subject to the
provision s of the Plan, in accordance with rules for giving notice
as determined by the Committee, and as elected in the Adoption
Agreement, a Participant may withdraw as of the first Accounting
Date subsequent to receipt by the Committee of such notice:
(A) Maximum Amount. An amount equal to not more than 100%
of the vested amounts in the Participant's Matching
Contribution Account determined as of such Accounting Date. No
Participant who has made any withdrawal of Matching
Contributions in the twelve (12) months preceding the giving of
such notice may make a withdrawal under this Section.
(B) Minimum Amount. Notwithstanding anything to the
contrary in this Section 3.11, any withdrawal made pursuant to
Section 3.11(A) shall be for a minimum whole dollar amount not
less than Five Hundred Dollars ($500.00); except that if the
amount available for withdrawal is less than Five Hundred
Dollars ($500.00) then the minimum amount of the withdrawal
shall be the amount available.
(C) Forfeitures. No forfeitures will occur solely as a
result of an Employee's withdrawal of Matching Contributions.
(D) Loan Security. Notwithstanding anything to the
contrary in this Section 3.11, a Participant may not make a
withdrawal, pursuant to this Section of any portion of the
Participant's vested interest which has been assigned to secure
repayment of a loan in accordance with Section 11.10, below,
until such time as the Committee shall have released said
portion so assigned.
ARTICLE IV
OTHER CONTRIBUTIONS
4.1 EMPLOYER CONTRIBUTIONS.
(A) Money Purchase Pension Plans Only. As elected by the
Employer in the Adoption Agreement, the Employer shall make
contributions to the Plan.
(B) Profit Sharing Plans and 401(k) Plans Only.
(1) Employer Contributions. For each Plan Year, the
Employer, shall or may make contributions to the Plan in
an amount as selected in the Adoption Agreement or
determined by Resolution of the Board of Directors of the
Employer.
(2) Net Profits Not Required if So Elected in
Adoption Agreement. If the Employer elects, Employer
Contributions under a profit sharing Plan may be made
without regard to Net Profits in accordance with Item
B(8)(a)(iii) of the Adoption Agreement. The Plan shall
continue to be designed to qualify as a profitsharing Plan
for purposes of Sections 401(a), 402, 412, and 417 of the
Code.
4.2 SEPARATE ACCOUNTS. An Employer Contribution Account shall
be maintained for each Participant to which will be credited the
employer pension or profit sharing contributions ("Employer
Contributions"). Such accounts shall be credited with the
applicable contributions, earnings and losses, distributions, and
other adjustments.
4.3 VESTING. Employer Contributions will be vested in
accordance with the Employer's election in Item B(7), as applicable,
of the Adoption Agreement. In any event, Employer Contributions
shall be fully vested at Normal Retirement Date, upon the complete
or partial termination of the Plan, and, in profit sharing plans,
upon the complete discontinuance of Employer Contributions.
4.4 LIMITATION ON EMPLOYER CONTRIBUTIONS. The Employer's
Contribution for any Plan Year shall not exceed the maximum amount
which the Employer may deduct pursuant to Section 404 of the Code.
The Employer Contributions shall be payable not later than the time
for filing the Employer's federal income tax return, including
extensions.
4.5 EMPLOYEE CONTRIBUTIONS.
(A) Distributions from Qualified Plans Rollovers.
(1) If the Employer selects Item B(9) in the Adoption
Agreement, an Employee who is entitled to make a rollover
contribution described in Section 402(a)(5), Section
403(a)(4) or Section 408(d)(3) of the Code ("Rollover
Contribution"), may elect, with the approval of the
Committee, to make such a Rollover Contribution to the
Plan. The Employee shall deliver or cause to be
delivered, to the Trustee the cash which constitutes such
Rollover Contribution at such time or times and in such
manner as shall be specified by the Committee. As of the
date of receipt of such property by the Trustee, a
Rollover Account shall be established in the name of the
Employee who has made a Rollover Contribution as provided
in this Section 4.5 and shall be credited with such assets
on such date. A Rollover Contribution shall not be deemed
to be a contribution of such Employee for any purpose of
this Agreement. All Rollover Contributions and the
earnings on these contributions shall be immediately fully
vested and nonforfeitable.
(2) Subject to the provisions of the Plan, on advance
notice given to the Committee in accordance with rules
established by the Committee a Participant in a profit
sharing Plan or 401(k) profit sharing Plan may withdraw
all or any part (in any whole dollar amount specified by
the Participant) of the value of any Rollover Account,
provided no Participant who has made any withdrawal under
Section 4.5(A) during the calendar year in which such
notice is given may make an additional withdrawal under
this Section 4.5(A) during the remainder of such year.
(B) Nondeductible Employee Contributions and Matching
Contributions No Longer Accepted.
(1) This Plan will not accept nondeductible employee
contributions and matching contributions except pursuant
to a 401(m) arrangement described in Article III.
Employee contributions for Plan Years beginning after
December 31, 1986, together with any matching
contributions as defined in Section 401(m) of the Code,
will be limited so as to meet the nondiscrimination test
of Section 401(m).
(2) A separate account will be maintained by the
Trustee for the previously made nondeductible employee
contributions of each Participant.
(3) Employee contributions and earnings thereon will
be nonforfeitable at all times. No forfeitures will occur
solely as a result of an Employee's withdrawal of Employee
contributions.
(C) Deductible Employee Contributions No Longer Accepted.
The Committee will not accept deductible Employee contributions
which are made for a taxable year beginning after December 31,
1986. Contributions made prior to that date will be maintained
in a separate account which will be nonforfeitable at all
times. The account will share in the gains and losses of the
Trust Fund in the same manner as described in Article VI of the
Plan. No part of the deductible voluntary contribution account
will be used to purchase life insurance. Subject to Section
7.10, Joint and survivor annuity requirements (if applicable),
the Participant may withdraw any part of the deductible
voluntary contribution account by making a written application
to the Committee.
4.6 EXCLUSIVE BENEFIT. Except as provided in the Plan, the
Employer has no beneficial interest in the Trust Fund, and no part
of the Trust Fund shall revert or be repaid to the Employer,
directly or indirectly, or diverted to purposes other than for the
exclusive benefit of Participants and their Beneficiaries, except
that (1) any contribution made by the Employer because of a mistake
of fact must be returned to the Employer within one year of the
contribution; (2) in the event the deduction of a contribution made
by the Employer is disallowed under Section 404 of the Code, such
contribution (to the extent disallowed) must be returned to the
Employer within one year of the disallowance of the deduction; and
(3) 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.
4.7 FORM, PAYMENT AND ALLOCATION OF CONTRIBUTIONS.
Contributions made for a Plan Year shall be made in cash; provided,
however, that if the Plan has an Employer Stock Fund, contributions
for the Employer Stock Fund may be made in Employer Stock.
Contributions shall be delivered to the Trustee at such time or
times as shall be agreed upon between the Committee and the Trustee.
The Committee shall instruct the Trustee as to the allocation of
contributions to the Participant's accounts pursuant to the
elections made in the Adoption Agreement. Employer Stock
contributed to the Plan shall be valued at fair market value at the
time of its transfer to the Plan.
4.8 SAFE HARBOR ALLOCATION. Notwithstanding anything to the
contrary in the Adoption Agreement, in the event the requirements of
Code Sections 401(a)(26) or 410(b) are not met during the Plan Year,
Employer Contributions will be allocated to Eligible Employees in
the following order until the applicable requirements are met:
(A) Eligible Employees employed by the Employer on the
last day of the Plan Year and who have completed more than 750
Hours of Service during the Plan Year;
(B) Eligible Employees employed by the Employer on the
last day of the Plan Year and who have completed more than 500
but less than 750 Hours of Service during the Plan Year;
(C) Eligible Employees employed by the Employer on the
last day of the Plan Year and who have completed 500 or fewer
Hours of Service during the Plan Year;
(D) Eligible Employees who have completed 750 or more
Hours of Service during the Plan Year;
(E) Eligible Employees who have completed more than 500
but less than 750 Hours of Service during the Plan Year.
In no event will Employees who have terminated employment
with the Employer during the Plan Year and who have completed
500 or fewer Hours of Service during the Plan Year receive any
allocation of Employer Profit Sharing Contributions.
ARTICLE V
PERIOD OF PARTICIPATION
5.1 TERMINATION DATES. A Participant's Termination Date will
be th e date on which his employment with the Employer is terminated
because of the first to occur of the following events:
(A) Normal Retirement. The Participant retires from the
employ of the Employer upon attaining the Normal Retirement
Date selected in the Adoption Agreement. If the Employer
enforces a mandatory retirement age the Normal Retirement Date
is the date the Participant attains the lesser of that
mandatory age or the age specified in the Adoption Agreement.
(B) Early Retirement. The Participant retires from the
employ of the Employer upon attaining the Early Retirement Date
selected in the Adoption Agreement. If a Participant
terminates employment prior to meeting any minimum age
specified in the Adoption Agreement but after having completed
the specified minimum service requirement, the terminated
Participant shall be entitled to an early retirement benefit
upon attaining the minimum age required.
(C) Late Retirement. The Participant retires from the
employ of the Employer after the Normal Retirement Date. A
Participant who continues to work beyond the Normal Retirement
Date shall continue participation in the Plan on the same basis
as the other Participants.
(D) Disability Retirement. The Participant is terminated
from the employ of the Employer because of Disability, as
determined by the Committee, as defined in Section 1.1(I),
irrespective of his age.
(E) Death. The Participant's death.
(F) Other Termination. The Participant terminates
employment before Normal, Early, Late or Disability Retirement.
If a Participant continues in the employ of the Employer
but no longer is a member of a class of Employees to which the
Plan has been and continues to be extended by the Employer, the
Participant's Termination Date nevertheless will be as stated
above and his or her accounts will be held as stated in Section
5.2.
5.2 RESTRICTED PARTICIPATION. When distribution of part or
all of the benefits to which a Participant is entitled under the
Plan is deferred beyond or cannot be made until after the
Participant's Termination Date, or during any period that a
Participant continues in the employ of the Employer but no longer is
a member of a class of Employees to which the Plan has been and
continues to be extended by the Employer, the Participant, or in the
event of his or her death such Participant's Beneficiary, will be
considered and treated as a Participant for all purposes of the
Plan, except that no share of contributions or forfeitures will be
credited to his or her Accounts (a) for any period such Participant
continues in the employ of the Employer but no longer is a member of
a class of Employees to which the Plan has been and continues to be
extended by the Employer, or (b) after the Participant's Termination
Date.
ARTICLE VI
ACCOUNTING
6.1 ACCOUNTS ESTABLISHED. There shall be established and
maintained for each Participant such accounts as are applicable, to
reflect such Participant's interest in each Investment Fund.
All income, expenses, gains and losses attributable to each
account shall be separately accounted for. The interest of each
Participant in the Trust Fund at any time shall consist of the
amount credited to his or her accounts as of the last preceding
Valuation Date plus credits and minus debits to such accounts since
that date.
6.2 EMPLOYER CONTRIBUTIONS CONSIDERED MADE ON LAST DAY OF PLAN
YEAR. Unless otherwise elected in the Adoption Agreement, for
purposes of this Article VI, the Employer's Contribution under
Article IV will be considered to have been made on the last day of
the Plan Year for which contributed.
6.3 ACCOUNTING STEPS. As of each Valuation Date, the Trustee
shall:
(A) Charge to the prior account balances all previously
uncharged payments or distributions made from Participants'
accounts since the last preceding Valuation Date.
(B) Adjust the net credit balances in Participants'
accounts upward or downward, pro rata, so that the total of
such net credit balances will equal the then adjusted net worth
of the Trust Fund;
(C) Allocate and credit Employer Contributions and any
forfeitures (as described in Section 7.3) that are to be
allocated and credited as of that date in accordance with
Sections 6.5 and 6.6.
Notwithstanding the preceding, the Trustee shall be
authorized to utilize such other method of accounting for the
gains or losses experience by the Trust as may accurately
reflect each Participant's interest therein.
6.4 ALLOCATION OF EMPLOYER CONTRIBUTIONS.
(A) Discretionary Profit Sharing Contributions.
(1) Nonstandardized Plans. If the Plan is a
nonstandardized Plan, Employer Contributions for the Plan
Year shall be allocated among and credited to the Employer
Contribution Accounts of each Participant, including a
Participant on leave of absence, who is entitled to
receive a contribution as elected by the Employer in the
Adoption Agreement, pursuant to the formula elected by the
Employer in Item B(8)(b) of the Adoption Agreement If
elected in the Adoption Agreement, Participants whose
employment terminated because of retirement, death or
disability before the end of the Plan Year will share in
the contributions for the year if elected in the Adoption
Agreement.
(2) Standardized Plans. Employer Contributions for
the Plan Year shall be allocated among and credited to the
Employer Contribution Account of each Participant who
either completes more than 500 Hours of Service during the
Plan Year (or such lesser number of Hours of Service as
may be specified in the Adoption Agreement) or is employed
on the last day of the Plan Year pursuant to the formula
elected by the Employer in Item B(8)(b) of the Adoption
Agreement. If elected in the Adoption Agreement,
Participants whose employment terminated before the end of
the Plan Year because of retirement, death or disability
will share in the contributions for the year if elected in
the Adoption Agreement.
(B) Money Purchase Pension Plans. Employer Contributions
will be made and allocated to the Employer Contribution
Accounts of Participants for the Plan Year as elected in the
Adoption Agreement. Sections 6.4(A)(1) and (2) above also
apply to the Money Purchase Pension Plans.
(C) Paired Plans. Notwithstanding anything in the Plan to
the contrary, if the Employer maintains two plans which are
Paired Plans, only one may contain an allocation, as elected in
the Adoption Agreement, utilizing permitted disparity as
defined in Code Section 401(l).
6.5 ALLOCATION OF FORFEITURES. As elected in Items B(11)
and/or C(6) of the Adoption Agreement, as of the last day of the
Plan Year, any forfeitures which arose under the Plan during that
year shall be used to: (i) pay the expenses of the Plan; (ii) reduce
Employer Contributions; or, (iii) be allocated to Participants
accounts, as may be selected in the Adoption Agreement. Forfeitures
under (iii) shall be allocated as provided in Section 6.4.
6.6 LIMITATION ON ALLOCATIONS.
(A) Definitions: For purposes of limiting allocations
pursuant to this section, the following definitions shall
apply:
(1) Annual Additions: The sum of the following
amounts credited to a Participant's account for the
Limitation Year:
(a) Employer Contributions;
(b) Employee Contributions;
(c) forfeitures;
(d) amounts allocated, after March 31, 1984, to
an individual medical account, as defined in Section
415 (l)(2) of the Code, which is part of a pension
or annuity Plan maintained by the Employer are
treated as Annual Additions to a defined
contribution Plan. Also amounts derived from
contributions paid or accrued after December 31,
1985, in taxable years ending after such date, which
are attributable to postretirement medical benefits,
allocated to the separate account of a Key Employee,
as defined in Section 419A(d)(3) of the Code, under
a welfare benefit fund, as defined in Section 419(e)
of the Code, maintained by the Employer are treated
as Annual Additions to a defined contribution Plan;
and,
(e) allocations under a simplified employee
pension.
For this purpose, any Excess Amount applied under
Sections 6.6(B)(4) or 6.6(C)(6) in the Limitation Year to
reduce Employer Contributions will be considered Annual
Additions for such Limitation Year.
(2) Compensation: Compensation as described below,
interpreted consistently with the provisions of Code
Section 414(s) and the regulations issued thereunder, as
may be selected by the Employer, and uniformly applied for
testing purpose:
(a) W-2 Compensation (Wages, Tips, and Other
Compensation required to be reported under Sections
6041, 6051, and 6052 of the Code, as reported on Form
W-2). Compensation is defined as wages within the
meaning of 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 Sections 6041(d), 6051(a)(3)
and 6052 of the Code. Compensation must be
determined without regard to any rules under Section
3401(a) that limit the remuneration included in wages
based on the nature or location of the employment or
the services performed (such as the exception for
agricultural labor in Section 3401(a)(2).
(b) Withholding Compensation (Section 3401(a)).
Compensation is defined as wages within the meaning
of Section 3401(a) for the purposes of income tax
withholding at the source but determined without
regard to any rules that limit the remuneration
included in wages based on the nature or location of
the employment or the services performed (such as the
exception for agricultural labor in Section
3401(a)(2)).
(c) Section 415 safe-harbor compensation.
Compensation is defined as 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 salesman, 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 1.622(c)), and excluding the following:
(i) 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 to the extent such contributions
are deductible by the Employee, or any
distributions from a Plan of deferred
compensation;
(ii) amounts realized from the exercise of
a nonqualified stock option, or when
restricted stock (or property) held by an
Employee becomes freely transferable or is no
longer subject to a substantial risk of
forfeiture;
(iii) amounts realized from the sale,
exchange or other disposition of stock acquired
under a qualified stock option; and
(iv) 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 Section 403(b) of
the Code (whether or not the contributions are
actually excludable from the gross income of
the Employee).
Notwithstanding anything in the definitions of
Compensation preceding, at the discretion of the Employer,
uniformly applied, Compensation shall, for purposes of ADP
and ACP testing as provided for in Article III, include
amounts not currently includible in income pursuant to
Code Sections 125, 402(a)(8), 402(h) and 403(b). For
allocation purposes, such amounts shall be includible as
elected in the Adoption Agreement.
For any self-employed Individual, Compensation will
mean Earned Income.
For Limitation Years beginning after December 31,
1991, for purposes of applying the limitations of Section
6.6, 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 Section
22(e)(3) of the Code) is the Compensation such Participant
would have received for the Limitation Year if the
Participant had been paid at the rate of Compensation paid
immediately before becoming permanently and totally
disabled; such imputed compensation for the disabled
Participant may be taken into account only if the
Participant is not a Highly Compensated Employee, (as
defined in Section 414(q) of the Code), and contributions
made on behalf of such Participant are nonforfeitable when
made.
(3) Defined Benefit Fraction: A fraction, the
numerator of which is the sum of the Participant's
Projected Annual Benefits under all the defined benefit
plans (whether or not terminated) maintained by the
Employer, and the denominator of which is the lesser of
125 percent of the dollar limitation determined for the
Limitation Year under Sections 415(b) and (d) of the Code
or 140 percent of the Participant's Highest Average
Compensation, including any adjustments under Section
415(b) of the Code.
Notwithstanding the above if the Participant was a
participant as of the first day of the first Limitation
Year beginning after December 31, 1986, in one or more
defined benefit plans maintained by the Employer which
were in existence on May 6, 1986, the denominator of this
fraction will not be less than 125 per cent 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 January 1, 1987, disregarding any changes
in the terms and conditions of the Plan after May 5,
1986. The preceding sentence applies only if the defined
benefit plans individually and in the aggregate satisfied
the requirements of Section 415 for all Limitation Years
beginning before January 1, 1987.
(4) Defined Contribution Dollar Limitation: For
purposes of calculating the Maximum Permissible Amount:
$30,000 or, if greater, one-fourth of the defined benefit
dollar limitation set forth in Section 415(b)(1) of the
Code as in effect for the Limitation Year.
(5) Defined Contribution Fraction: A fraction, the
numerator of which is the sum of the Annual Additions to
the Participant's accounts under all the defined
contribution plans (whether or not terminated) maintained
by the Employer for the current and all prior Limitation
Years, (including the Annual Additions attributable to the
Participant's nondeductible employee contributions to all
defined benefit plans, whether or not terminated,
maintained by the Employer, and the Annual Additions
attributable to all welfare benefit funds, as defined in
Section 419(e) of the Code, individual medical accounts,
as defined in Section 415(l)(2) of the Code, and
simplified employee pension, maintained by the Employer),
and the denominator of which is the sum of the maximum
aggregate amounts for the current and all prior Limitation
Years of service with the Employer (regardless of whether
a defined contribution Plan was maintained by the
Employer). The maximum aggregate amount in any Limitation
Year is the lesser of 125 percent of the dollar limitation
determined under Sections 415(b) and (d) of the Code in
effect under Section 415(c)(1)(A) of the Code or 35
percent of the Participant's Compensation for such year.
If the Employee was a participant as of the end of
the first day of the first Limitation Year beginning after
December 31, 1986, in one or more defined contribution
plans maintained by the Employer which were in existence
on May 6, 1986, the numerator of this fraction will be
adjusted if the sum of this fraction and the Defined
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 January
1, 1987, and disregarding any changes in the terms and
conditions of the Plan made after May 5, 1986, but using
the Section 415 limitation applicable to the first
Limitation Year beginning on or after January 1, 1987.
The Annual Addition for any Limitation Year beginning
before January 1, 1987, shall not be recomputed to treat
all Employee contributions as Annual Additions.
(6) Employer: For purposes of this Section 6.6: the
Employer that adopts this Plan, and all members of a
controlled group of corporations (as defined in section
414(b) of the Code as modified by Section 415(h), all
commonly controlled trades or businesses (as defined in
Section 414(c) as modified by Section 415(h)) or
affiliated service groups (as defined in Section 414(m))
of which the adopting Employer is a part, and any other
entity required to be aggregated with the Employer
pursuant to regulations under Section 414(o) of the Code.
(7) Excess Amount: The excess of the Participant's
Annual Additions for the Limitation Year over the Maximum
Permissible Amount.
(8) Highest Average Compensation: For purposes of
calculating the Defined Benefit Fraction, the average
compensation for the three (3) consecutive Years of
Service with the Employer that produces the highest
average. A Year of Service with the Employer is the
twelve-consecutive month period defined in Item B(4)(j) of
the Adoption Agreement.
(9) Limitation Year: A calendar year or any other 12
consecutive month period elected in Item B(4)(d) of the
Adoption Agreement. All qualified plans maintained by the
Employer must use the same Limitation Year. If the
Limitation Year is amended to a different 12-consecutive
month period, the new Limitation Year must begin on a date
within the Limitation Year in which the amendment is made.
(10) Master or Prototype Plan: A Plan the form of
which is the subject of a favorable opinion letter from
the Internal Revenue Service.
(11) 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 percent of the Participant's Compensation
for the Limitation Year.
The Compensation limitation referred to in (b) shall
not apply to any contribution for medical benefits (within
the meaning of Section 401(h) or Section 419A(f)(2) of the
Code) which is otherwise treated as an Annual Addition
under Section 415(l)(1) or 419A(d)(2) of the Code.
If a short Limitation Year is created because of an
amendment changing the Limitation Year to a different 12-
consecutive month period, the Maximum Permissible Amount
will not exceed the Defined Contribution Dollar Limitation
multiplied by the following fraction:
NUMBER OF MONTHS IN THE SHORT LIMITATION YEAR
12
(12) Projected Annual Benefit: For purposes of
calculating the Defined Benefit Fraction: the annual
retirement benefit (adjusted to an actuarially equivalent
straight life annuity if such benefit is expressed in a
form other than a straight life annuity or qualified joint
and survivor annuity) to which the Participant would be
entitled under the terms of the Plan, assuming: (1) the
Participant will continue employment until Normal
Retirement Date under the Plan, (or current age, if
later), and (2) the Participant's Compensation for the
current Limitation Year and all other relevant factors
used to determine benefits under the Plan will remain
constant for all future Limitation Years.
(B) Annual Addition Limitations:
(1) If the Participant does not participate in, and
has never participated in another qualified Plan or
welfare benefit fund, as defined in Section 419(e) of the
Code maintained by the Employer, or an individual medical
account, as defined in Section 415(l)(2) of the Code,
maintained by the Employer, or a simplified employee
pension, as defined in Section 408(K) of the Code,
maintained by the Employer which provides an Annual
Addition as defined in Section 6.6(E), 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.
(2) Prior to determining the Participant's actual
Compensation for the Limitation Year, the Employer may
determine the Maximum Permissible Amount for a Participant
on the basis of a reasonable estimation of the
Participant's Compensation for the Limitation Year,
uniformly determined for all Participants similarly
situated.
(3) 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.
(4) If pursuant to Section 6.6(B)(3) or as result of
the allocation of forfeitures, there is an Excess Amount,
the excess will be disposed of as follows:
(a) Any nondeductible voluntary employee
contributions, to the extent they would reduce the
Excess Amount, will be returned to the Participant.
(b) If after the application of paragraph (a) 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.
(c) If after the application of paragraph (a) an
Excess Amount still exists, and the Participant is
not covered by the Plan at the end of a Limitation
Year, the Excess Amount will be held unallocated in a
suspense account. The suspense account will be
applied to reduce future Employer Contributions
(including allocation of any forfeitures) for all
remaining Participants in the next Limitation Year
and each succeeding Limitation Year, if necessary.
(d) If a suspense account is in existence at any
time during a Limitation Year pursuant to this
Section 6.6(A), it will not participate in the
allocation of the trust's 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.
(C) Multiple Plan Limitation.
(1) This Section 6.6(C) applies if, in addition to
this Plan, the Participant is covered under another
qualified Master or Prototype defined contribution Plan
maintained by the Employer, a welfare benefit fund, as
defined in Section 419(e) of the Code maintained by the
Employer, or an individual medical account, as defined in
Section 415(l)(2) of the Code, maintained by the Employer,
or a simplified employee pension maintained by the
employer which provides an Annual Addition as defined in
Section 6.6(A) during any Limitation Year. The Annual
Additions which may be credited to a Participant's
accounts under this Plan for any such Limitation Year
shall not exceed the Maximum Permissible Amount reduced by
the Annual Additions credited to a Participant's accounts
under the other qualified master and prototype defined
contribution plans, welfare benefit funds, individual
medical accounts, and simplified employee pensions for the
same Limitation Year. If the Annual Additions with
respect to the Participant under other qualified master
and prototype defined contribution plans and welfare
benefit funds, individual medical accounts, and simplified
employee pension, maintained by the Employer are less than
the Maximum Permissible Amount and the contributions that
would otherwise be contributed or allocated to the
Participant's Employer Contribution 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
qualified master and prototype defined contribution plans,
welfare benefit funds individual medical accounts, and
simplified employee pension, in the aggregate are equal to
or greater than the Maximum Permissible Amount, no amount
will be contributed or allocated to the Participant's
Employer Contribution Account under this Plan for the
Limitation Year.
(2) Prior to determining the Participant's actual
Compensation for the Limitation Year, the Employer may
determine the Maximum Permissible Amount for a Participant
in the manner described in Section 6.6(B)(2).
(3) 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.
(4) If, pursuant to Section 6.6(C)(3) or as a result
of the allocation of forfeitures, a Participant's Annual
Additions under this Plan and all other plans result in an
Excess Amount for a Limitation Year, the Excess Amount
shall be deemed to consist of the amounts last allocated,
except that Annual Additions attributable to a simplified
employee pension will be deemed to have been allocated
first, followed by annual additions to a welfare benefit
fund or individual medical account regardless of the
actual allocation date.
(5) 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 (i) the Annual Additions
allocated to the Participant for the Limitation Year
as of such date under this Plan to (ii) the total
Annual Additions allocated to the Participant for the
Limitation Year as of such date under this and all
other qualified Master or Prototype defined
contribution plans.
(6) Any Excess Amount attributed to this Plan should
be disposed of as provided in Section 6.6(C)(4).
(D) 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 accounts under this Plan for any
Limitation Year will be limited in accordance with Section
6.6(C) (16) as though the Plan were a Master or Prototype Plan
unless the Employer provides other limitations in Item B(12) of
the Adoption Agreement.
(E) If the Employer maintains, or at any time maintained,
a qualified defined benefit Plan covering any Participant in
this Plan, the sum of the Participant's Defined Benefit Plan
Fraction and Defined Contribution Plan Fraction will not exceed
1.0 in any Limitation Year. The Annual Additions which may be
credited to the Participant's accounts under this Plan for any
Limitation Year will be limited in accordance with Item B(12)
of the Adoption Agreement.
6.7 REPORTS TO PARTICIPANTS. The Committee shall cause
reports to be made at least annually to each Participant and to the
Beneficiary of each deceased Participant as to the value of each
such Participant's accounts, as of an appropriate preceding
Valuation Date.
ARTICLE VII
PAYMENT OF ACCOUNT BALANCES
7.1 TERMINATION OF EMPLOYMENT UPON DISABILITY OR DEATH. A
Participant shall become fully vested in his or her Employer
Contribution Accounts if the Participant becomes Disabled under
Sections 5.1(A), (B), (C) or (D) or dies while still employed. The
accounts of a Participant who retires becomes Disabled or dies will
become distributable to the Participant or to his or her Spouse or
Beneficiary. If distributed immediately, subject to Section 7.4,
the distributable balance, after adjustments, will be determined as
soon as practicable following the receipt by the Trustee of written
notice of the Participant's termination from the Committee.
7.2 TIMING FOR DETERMINING ACCOUNT BALANCE UPON TERMINATION OF
EMPLOYMENT PRIOR TO RETIREMENT, DISABILITY OR DEATH. If a
Participant terminates employment with the Employer before
retirement under Sections 5.1(F) the vested portion of the
Participant's Employer Contribution Account and/or Matching Account
shall be determined and such Participant's accounts will be
distributable to the Participant. If distributed immediately,
subject to Section 7.4, the distributable balance, after
adjustments, will be determined as soon as practicable following
receipt by the Trustee of written notice of the Participant's
termination from the Committee. The account balance shall be
distributable at such time as elected in the Adoption Agreement, but
in no event shall an account balance not be distributable later than
the Participant's Normal Retirement Date.
7.3 VESTING ON DISTRIBUTION BEFORE BREAK-IN-SERVICE; CASH-
OUTS.
(A) If an Employee terminates service, and the value of
the Employee's vested account balance derived from Employer and
Employee contributions is not greater than $3,500, the Employee
will receive a distribution of the value of the entire vested
portion of such account balances, and Rollover Account balance,
if any. The nonvested portion will be treated as a forfeiture.
For purposes of this Section 7.3, if the value of an Employee's
vested account balance is zero, the Employee shall be deemed to
have received a distribution of such vested account balance. A
Participant's vested account balance shall not include
accumulated deductible employee contributions within the
meaning of Section 72(o)(5)(B) of the Code for Plan Years
beginning prior to January 1, 1989.
(B) If an Employee terminates service, and elects, in
accordance with the requirements of Section 7.4, to receive the
value of the Employee's vested account balance, the nonvested
portion will be treated as a forfeiture. If the Employee
elects to have distributed less than the entire vested portion
of the balance in the Employer Contribution Account, the part
of the nonvested portion that will be treated as a forfeiture
is the total nonvested portion multiplied by a fraction, the
numerator of which is the amount of the distribution
attributable to Employer Contributions and the denominator of
which is the total value of the vested balance in the Employer
Contribution Account.
(C) If an Employee receives a distribution pursuant to
this Section 7.3 and the Employee resumes employment covered
under this Plan, the Employee's Employer Contribution Account
and/or Matching Account balance will be restored to the amount
on the date of distribution if the Employee repays to the Plan
the full amount of the distribution attributable to Employer
contributions before the earlier of 5 years after the first
date on which the Participant is subsequently reemployed by the
Employer, or the date the Participant incurs five (5)
consecutive one (1) year Breaks in Service following the date
of the distribution. If an Employee is deemed to receive a
distribution pursuant to this Section 7.3, and the Employee
resumes employment covered under this Plan before the date the
Participant incurs five (5) consecutive one (1) year Breaks in
Service, upon the reemployment of such Employee, the Employer
Contribution Account balance and/or Matching Account balance of
the Employee will be restored to the amount on the date of such
deemed distribution.
7.4 RESTRICTIONS ON IMMEDIATE DISTRIBUTIONS.
(A) 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 the Participant's Spouse (or where either the Participant
or the Spouse has died, the survivor) must consent to any
distribution of such account balance. The consent of the
Participant and the Participant's Spouse shall be obtained in
writing within the 90day period ending on the annuity starting
date. The annuity starting date is the first day of the first
period for which an amount is paid as an annuity or any other
form. The Committee shall notify the Participant and the
Participant's Spouse of the right to defer any distribution
until the Participant's account balance is no longer
immediately distributable. Such notification shall include a
general description of the material features, and an
explanation of the relative values of, the optional forms of
benefit available under the Plan in a manner that would satisfy
the notice requirements of Section 417(a)(3), and shall be
provided no less than 30 days and no more than 90 days prior to
the annuity starting date. However, distribution may commence
less than 30 days after the notice described in the preceding
sentence is given, provided the distribution is one to which
sections 401(a)(11) and 417 of the Internal Revenue Code do not
apply, 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 the participant, after
receiving the notice, affirmatively elects a distribution.
Notwithstanding the foregoing, only the Participant need
consent to the commencement of a distribution in the form of a
Qualified Joint and Survivor Annuity while the account balance
is immediately distributable. (Furthermore, if payment in the
form of a Qualified Joint and Survivor Annuity is not required
with respect to the Participant pursuant to Section 7.10 of the
Plan, only the Participant need consent to the distribution of
an account balance that is immediately distributable. Neither
the consent of the Participant nor the Participant's Spouse
shall be required to the extent that a distribution is required
to satisfy Section 401(a)(9) or Section 415 of the Code. In
addition, upon termination of this Plan if the Plan does not
offer an annuity option (purchased from a commercial provider),
and if the Employer or any entity within the same controlled
group as the Employer does not maintain another defined
contribution Plan (other than an employee stock ownership Plan
as defined in Section 4975(e)(7) of the Code), the
Participant's account balance will, without the Participant's
consent, be distributed to the Participant. However, if any
entity within the same controlled group as the Employer
maintains another defined contribution Plan (other than an
employee stock ownership Plan as defined in Section 4975(e)(7)
of the Code) then the Participant's account balance will be
transferred, without the Participant's consent, to the other
Plan if the Participant does not consent to an immediate
distribution.
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 Date or age 62.
(B) For purposes of determining the applicability of the
foregoing consent requirements to distributions made before the
first day of the first Plan Year beginning after December 31,
1988, the Participant's vested account balance shall not
include amounts attributable to accumulated deductible employee
contributions within the meaning of Section 72(o)(5)(B) of the
Code.
7.5 COMMENCEMENT OF BENEFITS. Unless the Participant elects
otherwise, payments will be made or commence to a Participant by the
Trustee, as directed by the Committee, no later than the sixtieth
(60th) day after the latest of the close of the Plan Year in which
(1) the Participant attains age sixty-five (65) (or Normal
Retirement Date; if earlier); (2) occurs the tenth (10th)
anniversary of the year in which the Participant commenced
participation in the Plan; or (3) the Participant terminates his or
her service with the Employer.
Notwithstanding the foregoing, the failure of a Participant and
Spouse to consent to a distribution while a benefit is immediately
distributable, within the meaning of Section 7.4 of the Plan, shall
be deemed to be an election to defer commencement of payment of any
benefit sufficient to satisfy this section.
7.6 TIMING AND MODES OF DISTRIBUTION.
(A) General Rules.
(1) Subject to Section 7.10, Joint and Survivor
Annuity Requirements, the requirements of this Section 7.6
shall apply to any distribution of a Participant's
interest and will take precedence over any inconsistent
provisions of this Plan. Unless otherwise specified, the
provisions of this Section 7.6 apply to calendar years
beginning after December 31, 1984.
(2) All distributions required under this Section 7.6
shall be determined and made in accordance with the Income
Tax Regulations under Section 401(a)(9), including the
minimum distribution incidental benefit requirement of
Section 1.401(a)(9)2 of the regulations.
(3) The normal form of payment for a profit-sharing
Plan satisfying the requirements of Section 7.10(F) hereof
shall be a single sum with no option for annuity payments;
provided, however, that distributions may be made:
(a) In installment payments, if the Employer has
elected installment payments in Item B(10)(a) of the
Adoption Agreement;
(b) Through such other form of benefit as may be
identified in Item B(10)(a) of the Adoption
Agreement, which shall be available to Participants
as an optional form of benefit payment, and shall
preclude Employer discretion;
(c) Through such other form of benefits as may
be required to be protected as Section 411(d)(6)
protected benefits.
(B) Required Beginning Date. The entire interest of a
Participant must be distributed or begin to be distributed no
later than the Participant's required beginning date.
(C) Limits on 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):
(1) the life of the Participant,
(2) the life of the Participant and a designated
Beneficiary,
(3) a period certain not extending beyond the life
expectancy of the Participant, or
(4) a period certain not extending beyond the joint
and last survivor expectancy of the Participant and a
designated Beneficiary.
(D) Determination of Amount to be Distributed Each Year.
If the Participant's interest is to be distributed in other
than a single sum, the following minimum distribution rules
shall apply on or after the required beginning date:
(1) Individual Account.
(a) If a Participant's benefit is to be
distributed over:
(i) 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
(ii) 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 January
1, 1989, if the Participant's Spouse is not the
designated beneficiary, the method of distribution
selected must assure that at least 50% of the present
value of the amount available for distribution is
paid within the life expectancy of the Participant.
(c) For calendar years beginning after December
31, 1988, the amount to be distributed each year,
beginning with distributions for the first
distribution calendar year shall not be less than the
quotient obtained by dividing the Participant's
benefit by the lesser of (1) the applicable life
expectancy or (2) if the Participant's Spouse is not
the designated Beneficiary, the applicable divisor
determined from the table set forth in Q&A4 of
Section 1.401(a)(9)2 of the Income Tax Regulations.
Distributions after the death of the Participant
shall be distributed using the applicable life
expectancy in Section (1)(a) above 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
Employee's required beginning date occurs, must be
made on or before December 31 of that distribution
calendar year.
(2) Other Forms. If the Participant's benefit is
distributed in the form of an annuity purchased from an
insurance company, distributions thereunder shall be made
in accordance with the requirements of Section 401(a)(9)
of the Code and the regulations thereunder.
(E) Death Distribution Provisions
(1) 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.
(2) 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 and (2) December 31 of the calendar year in
which the Participant would have attained age 70-
1/2.
If the Participant has not made an election
pursuant to this Section 7.6(E)(2) 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 in which contains
the fifth anniversary of the date of death of the
Participant. If the Participant has no designated
Beneficiary, or if the designated Beneficiary does
not elect a method of distribution, distribution of
the Participant's entire interest must be completed
by December 31 of the calendar year containing the
fifth anniversary of the Participant's death.
(3) Surviving Spouse's Death. For purposes of
Section (E)(2) above, if the surviving Spouse dies after
the Participant, but before payments to such Spouse begin,
the provisions of Section (E)(2) with the exception of
paragraph (b) therein, shall be applied as if the
surviving Spouse were the Participant.
(4) Minor Beneficiary. For purposes of this Section
(E), any amount paid to a child of the Participant will be
treated as if it had been paid to the surviving Spouse if
the amount becomes payable to the surviving Spouse when
the child reaches the age of majority.
(5) Distribution Considered to Begin on Required
Beginning Date. For the purposes of this Section (E),
distribution of a Participant's interest is considered to
begin on the Participant's required beginning date (or, if
Section (E)(3) above is applicable, the date distribution
is required to begin to the surviving Spouse pursuant to
Section (E)(2) above). If distribution in the form of an
annuity irrevocably commences to the Participant before
the required beginning date, the date distribution is
considered to begin is the date distribution actually
commences.
(F) Definitions.
(1) Applicable life expectancy: The life expectancy
(or joint and last survivor expectancy) calculated using
the attained age of the Participant (or designated
Beneficiary) as of the Participant's (or designated
Beneficiary's) birthday in the applicable calendar year
reduced by one for each calendar year which has elapsed
since the date life expectancy was first calculated. If
life expectancy is being recalculated, the applicable life
expectancy shall be the life expectancy as so
recalculated. The applicable calendar year shall be the
first distribution calendar year, and if life expectancy
is being recalculated such succeeding calendar year.
(2) Designated Beneficiary: The individual who is
designated as the Beneficiary under the Plan in accordance
with Section 401(a)(9) and the proposed regulations
thereunder.
(3) Distribution calendar year: A calendar year for
which a minimum distribution is required. For
distributions beginning before the Participant's death,
the first distribution calendar year is the calendar year
immediately preceding the calendar year which contains the
Participant's required beginning date. For distributions
beginning after the Participant's death, the first
distribution calendar year is the calendar year in which
distributions are required to begin pursuant to Section
(E) above.
(4) Life expectancy: Life expectancy and joint and
last survivor expectancy are computed by use of the
expected return multiples in Tables V and VI of Section
1.729 of the Income Tax Regulations.
Unless otherwise elected by the Participant (or
Spouse, in the case of distributions described in Section
(E)(2)(b) above) by the time distributions are required to
begin, life expectancies shall be recalculated annually.
Such election shall be irrevocable as to the Participant
(or Spouse) and shall apply to all subsequent years. The
life expectancy of a non-spouse Beneficiary may not be
recalculated.
(5) Participant's benefit:
(a) The account balance as of the last valuation
date in the calendar year immediately preceding the
distribution calendar year (valuation calendar year)
increased by the amount of any contributions or
forfeitures allocated to the account balance as of
dates in the valuation calendar year after the
valuation date and decreased by distributions made in
the valuation calendar year after the valuation
date.
(b) Exception for second distribution calendar
year. For purposes of paragraph (a) above, if any
portion of the minimum distribution for the first
distribution calendar year is made in the second
distribution calendar year on or before the required
beginning date, the amount of the minimum
distribution made in the second distribution
calendar year shall be treated as if it had been
made in the immediately preceding distribution
calendar year.
(6) 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.
(b) Transitional rules. The required beginning
date of a Participant who attains age 70-1/2 before
January 1, 1988, shall be determined in accordance
with (1) or (2) below:
(i) 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.
(ii) 5-percent owners. The required
beginning date of a Participant who is a 5-
percent owner during any year beginning after
December 31, 1979, is the first day of April
following the later of:
(a) the calendar year in which the
participant attains age 70-1/2, or
(b) the earlier of the calendar year
with or within which ends the Plan Year in
which the Participant becomes a 5percent
owner, or the calendar year in which the
Participant retires.
The required beginning date of a
Participant who is not a 5percent owner who
attains age 70-1/2 during 1988 and who has not
retired as of January 1, 1989, is April 1, 1990.
(c) 5-percent owner. A Participant is treated
as a 5-percent owner for purposes of this Section if
such Participant is a 5-percent owner as defined in
Section 416(i) of the Code (determined in accordance
with Section 416 but without regard to whether the
Plan is top-heavy) at any time during the Plan Year
ending with or within the calendar year in which such
owner attains age 661/2 or any subsequent Plan Year.
(d) Once distributions have begun to a 5-percent
owner under this Section, they must continue to be
distributed, even if the Participant ceases to be a
5-percent owner in a subsequent year.
(G) Transitional Rule.
(1) Distributions to 5-percent Owners.
Notwithstanding the other requirements of this Section 7.6
and subject to the requirements of Section 7.10, Joint and
Survivor Annuity Requirements, distributions 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):
(a) The distribution by the plan is one which
would not have disqualified such plan under Section
401(a)(9) of the Internal Revenue Code as in effect
prior to amendment by the Deficit Reduction Act of
1984.
(b) The distribution is in accordance with a
method of distribution designated by the Employee
whose interest in the plan is being distributed or,
if the Employee is deceased, by a Beneficiary of
such Employee.
(c) Such designation was in writing, was signed
by the Employee or the Beneficiary, and was made
before January 1, 1984.
(d) The Employee had accrued a benefit under the
Plan as of December 31, 1983.
(e) 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.
(2) Distribution on Death. 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.
(3) Designation of Distribution Method. For any
distribution which commences before January 1, 1984, but
continues after December 31, 1983, the Employee, or the
Beneficiary, to whom such distribution is being made, will
be presumed to have designated the method of distribution
under which the distribution is being made if the method
of distribution was specified in writing and the
distribution satisfies the requirements in subsections
(G)(1)(a) and (e).
(4) Revocation of Designations. If a designation is
revoked any subsequent distribution must satisfy the
requirements of Section 401(a)(9) of the Code and the
regulations thereunder. If a designation is revoked
subsequent to the date distributions are required to
begin, the plan must distribute by the end of the calendar
year following the calendar year in which the revocation
occurs the total amount not yet distributed which would
have been required to have been distributed to satisfy
Section 401(a)(9) of the Code and the regulations
thereunder, but for the Section 242(b)(2) election. For
calendar years beginning after December 31, 1988, such
distributions must meet the minimum distribution
incidental benefit requirements in Section 1.401(a)(9)2 of
the Income Tax Regulations. Any changes in the
designation will be considered to be a revocation of the
designation. However, the mere substitution or addition
of another Beneficiary (one not named in the designation)
under the designation will not be considered to be a
revocation of the designation, so long as such
substitution or addition does not alter the period over
which distributions are to be made under the designation,
directly or indirectly (for example, by altering the
relevant measuring life). In the case in which an amount
is transferred or rolled over from one Plan to another
Plan, the rules in Q&A J2 and Q&A J3 shall apply.
7.7 DESIGNATION OF BENEFICIARY.
(A) Default Beneficiary. In the case of a Participant who
is married, the Participant's Beneficiary shall be the
Participant's Spouse, but if the Participant's Spouse consents
as provided in this Section 7.7, or if the Participant is not
married, then the Participant shall have the right to designate
that after such Participant's death such Participant's accounts
shall be distributed to a designated Beneficiary or
Beneficiaries.
(B) Spousal Consent. Any consent of a Spouse given
pursuant to this Section must be in writing and given prior to
the death of the Participant. Such consent must acknowledge
the effect of the Participant's Beneficiary designation, the
identity of any non-Spouse Beneficiary, including any class of
Beneficiaries and contingent Beneficiaries, and the consent
must be witnessed by a Plan representative or a Notary Public.
The Participant may not subsequently change the designation of
his or her Beneficiary unless his Spouse consents to the new
designation in accordance with the requirements set forth in
the preceding sentence. The consent of a Participant's Spouse
shall not be required if the Participant establishes to the
satisfaction of the Committee that consent may not be obtained
because there is no Spouse, the Spouse cannot be located or
because of such other circumstances as the Secretary of the
Treasury may prescribe by regulations. A Spouse's consent
shall be irrevocable. Any consent by a Spouse, or
establishment that the consent of the Spouse may not be
obtained, shall be effective only with respect to that Spouse.
(C) Changing Beneficiaries. Subject to Subparagraphs (A)
and (B) above, the Participant's designation of Beneficiary may
be made, changed or revoked by the Participant at any time by a
written instrument, in form satisfactory to the Committee, and
shall become effective only when executed by such Participant
(and, if applicable, consented to by the Participant's Spouse
as set forth in Section 7.7(B)) and filed with the Committee
prior to such Participant's death. If all of the Beneficiaries
named in such designation shall have predeceased such
Participant, or die prior to complete distribution of the
Participant's accounts, or if such Participant fails to execute
and file a designation and is not survived by a Spouse the
payment of such Participant's accounts shall be made pursuant
to the Plan and to such Beneficiaries as required by state law.
Neither the Employer, the Committee, nor the Trustee, shall
have any duty to see that such Participant, any Spouse or any
Beneficiary executes and files any such designation with the
Committee.
7.8 OPTIONAL FORMS OF BENEFIT. The optional forms of benefit
provided by this Plan are not subject to Employer discretion and are
made available to all Participants on a nondiscriminatory basis.
The optional forms of benefit are described in Articles III and VII,
as may be selected in the Adoption Agreement. If selected in Item
B(13) of the Adoption Agreement, the Employer may attach to the Plan
a list of the Section "411(d)(6) protected benefits" that must be
preserved from a individually designed Plan or other prototype Plan
which this Plan amends.
7.9 DISTRIBUTION UPON DISABILITY. In the event of the
Disability of the Participant, the Trustee, following receipt of
notification of such Disability from the Committee, shall make
distributions from the Account.
7.10 JOINT AND SURVIVOR ANNUITY REQUIREMENTS.
(A) Application. The provisions of this Section 7.10
shall apply to a ny Participant who is credited with at least
one Hour of Service with the Employer on or after August 23,
1984, and such other Participants as provided in Section
7.10(G).
(B) Qualified Joint and Survivor Annuity. Unless an
optional form of benefit is selected pursuant to a Qualified
Election within the ninety-day period ending on the Annuity
Starting Date, a married Participant's Vested Account Balance
will be paid in the form of a Qualified Joint and Survivor
Annuity and an unmarried Participant's Vested Account Balance
will be paid in the form of a life annuity. The Participant
may elect to have such annuity distributed upon attainment of
the Earliest Retirement Age under the Plan.
(C) 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 the Annuity Starting Date then the Participant's Vested
Account Balance shall be applied toward the purchase 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.
(D) Definitions.
(1) Election period: The period which begins on the
first day of the Plan Year in which the Participant
attains age 35 and ends on the date of the Participant's
death. If a Participant separates from service prior to
the first day of the Plan Year in which age 35 is
attained, with respect to the account balance as of the
date of separation, the election period shall begin on the
date of separation.
Pre-age 35 waiver: A Participant who will not yet
attain age 35 as of the end of any current Plan Year may
make a special Qualified Election to waive the Qualified
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 Preretirement Survivor Annuity in such terms as
are comparable to the explanation required under Section
7.10(E). Qualified Preretirement 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 Section 7.10.
(2) Earliest retirement age: The earliest date on
which, under the Plan, the Participant could elect to
receive retirement benefits.
(3) Qualified Election: A waiver of a Qualified
Joint and Survivor Annuity or a Qualified Pre-Retirement
Survivor Annuity. Any waiver of a Qualified Joint and
Survivor Annuity or a Qualified Preretirement Survivor
Annuity shall not be effective unless: (a) the
Participant's Spouse consents in writing to the election;
(b) the election designates a specific Beneficiary
including any class of Beneficiaries or any contingent
Benefici aries, which may not be changed without spousal
consent (or the Spouse expressly permits designations by
the Participant without any further spousal consent); (c)
the Spouse's consent acknowledges the effect of the
election; and (d) the Spouse's consent is witnessed by a
Plan representative or Notary Public. Additionally, a
Participant's waiver of the Qualified Joint and Survivor
Annuity shall not be effective unless the election
designates a form of benefit payment which may not be
changed without spousal consent (or the spouse expressly
permits designations by the Participant without any
further spousal consent). If it is established to the
satisfaction of a Plan representative that there is no
Spouse or that the Spouse cannot be located, a waiver will
be deemed a Qualified Election.
Any consent by a Spouse obtained under this provision
(or establishment that the consent of a Spouse may not be
obtained) shall be effective only with respect to such
Spouse. A consent that permits designations by the
Participant without any requirement of further consent by
such Spouse must acknowledge that the Spouse has the right
to limit consent to a specific Beneficiary, and a specific
form of benefit where applicable, and that the Spouse
voluntarily elects to relinquish either or both of such
rights. A revocation of a prior waiver may be made by a
Participant without the consent of the Spouse at any time
before the commencement of benefits. The number of
revocations shall not be limited. No consent obtained
under this provision shall be valid unless the Participant
has received notice as provided in Paragraph (E) below.
(4) Qualified Joint and Survivor Annuity: An
immediate annuity for the life of the Participant with a
survivor annuity for the life of the Spouse which is not
less than 50 percent and not more than 100 percent of the
amount of the annuity which is payable during the joint
lives of the Participant and the Spouse and which is the
amount of benefit which can be purchased with the
Participant's vested account balance. The percentage of
the survivor annuity under the Plan shall be 50%.
(5) 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 the 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 Section
414(p) of the Code.
(6) Annuity Starting Date: The first day of the
first period for which an amount is payable as an annuity
or any other form.
(7) 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. The provisions of
this Section 7.10 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.
(E) Notice Requirements.
(1) Qualified Joint and Survivor Annuity. In the
case of a Qualified Joint and Survivor Annuity as
described in Section 7.10(B), the Committee 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: (i) the terms and conditions of a
Qualified Joint and Survivor Annuity; (ii) the
Participant's right to make and the effect of an election
to waive the Qualified Joint and Survivor Annuity form of
benefit; (iii) the rights of a Participant's Spouse; and
(iv) the right to make, and the effect of, a revocation of
a previous election to waive the Qualified Joint and
Survivor Annuity.
(2) Qualified Pre-Retirement Survivor Annuity. In
the case of a Qualified Pre-Retirement Survivor Annuity as
described in Section 7.10(C), the Committee 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 Section 7.10(E) applicable
to a Qualified Joint and Survivor Annuity.
The applicable period for a Participant is whichever
of the following periods ends last: (i) the period
beginning with the first day of the Plan Year preceding
the Plan Year in which the Participant attains age thirty-
two (32) and ending with the close of the Plan Year in
which the Participant attains age thirty-five (35); (ii) a
reasonable period ending after the individual becomes a
Participant; (iii) a reasonable period ending after
Section 7.10(E)(3) ceases to apply to the Participant; and
(iv) a reasonable period ending after Section 7.10 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 thirty-five (35).
For purposes of applying the preceding paragraph, a
reasonable period ending after the enumerated events
described in (ii), (iii) and (iv) is the end of the two-
year period beginning one year prior to the date the
applicable event occurs, and ending one year after that
date. In the case of a Participant who separates from
service before the Plan Year in which age 35 is attained,
notice shall be provided within the two-year period
beginning one-year prior to separation and ending one year
after separation. If such a Participant thereafter
returns to employment with the Employer, the applicable
period for such participant shall be redetermined.
(3) Subsidized Annuity Distributions.
Notwithstanding the other requirements of this Section
7.10(E), the respective notices prescribed by this Section
7.10(E) need not be given to a Participant if (1) the Plan
"fully subsidizes" the cost of a Qualified Joint and
Survivor Annuity or Qualified Pre-Retirement Survivor
Annuity, and (2) the Plan does not allow the Participant
to waive the Qualified Joint and Survivor Annuity or
Qualified Pre-Retirement Survivor Annuity and does not
allow a married Participant to designate a non-Spouse
Beneficiary. For purposes of this Section 7.10(E), a Plan
fully subsidizes the cost of a benefit if no increase in
cost, or decrease in benefits to the Participant may
result from the Participant's failure to elect another
benefit.
(F) Safe harbor rules.
(1) Application. This Section shall apply to a
Participant in a profitsharing Plan, and to any
distribution, made on or after the first day of the first
Plan Year beginning after December 31, 1988, from or under
a separate account attributable solely to accumulated
deductible employee contributions, as defined in Section
72(o)(5)(B) of the Code, and maintained on behalf of a
Participant in a money purchase pension Plan, (including a
target benefit Plan) if the following conditions are
satisfied: (1) the Participant does not or cannot elect
payments in the form of a life annuity, and (2) on the
death of the 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 already 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 90day 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. This Section 7.10(F) shall
not be operative with respect to a Participant in a
profitsharing Plan if the Plan is a direct or indirect
transferee of a defined benefit Plan, money purchase Plan,
a target benefit Plan, stock bonus, or profitsharing Plan
which is subject to the survivor annuity requirements of
Section 401(a)(11) and Section 417 of the Code. If this
Section 7.10(F) is operative, then the provisions of this
Section 7.10, other than in Section 7.10(G), shall be
inoperative.
(2) Waiver. The Participant may waive the spousal
death benefit described in this section at any time
provided that no such waiver shall be effective unless it
satisfies the conditions of Section 7.10(D)(3) (other than
the notification requirement referred to therein) that
would apply to the Participant's waiver of the Qualified
Preretirement Survivor Annuity.
(3) Vested Account Balance. For purposes of this
Section 7.10(F), vested account balance shall mean, in the
case of a money purchase pension Plan or a target benefit
Plan, the Participant's separate account balance
attributable solely to accumulated deductible employee
contributions within the meaning of Section 72(o)(5) (B)
of the Code. In the case of a profitsharing Plan, vested
account balance shall have the same meaning as provided in
Section 7.10(D)(7).
(G) Transitional Rules.
(1) Any living Participant not receiving benefits on
August 23, 1984, who would otherwise not receive the
benefits prescribed by the previous sections of this
Section 7.10 must be given the opportunity to elect to
have the prior sections of this Section 7.10 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 ten (10) years of vesting service
when he or she separated from service.
(2) Any living Participant not receiving benefits on
August 23, 1984 who was credited with at least one Hour of
Service under this Plan or 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 Section 7.10(G)(4).
(3) The respective opportunities to elect (as
described in Section 7.10(G)(1) and (2) 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 these Participants.
(4) Any Participant who has elected pursuant to
Section 7.10(G)(2) and any Participant who does not elect
under Section 7.10(G)(1) or who meets the requirements of
Section 7.10(G)(1) except that such Participant does not
have at least ten (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 of 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:
(i) begins to receive payments under the
Plan on or after Normal Retirement Date; or
(ii) dies on or after Normal Retirement
Date while still working for the Employer; or
(iii) begins to receive payments on or
after the Qualified Early Retirement Age; or
(iv) separates from service on or after
attaining Normal Retirement Date (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
An nuity, unless the Participant has elected
otherwise during the election period. The election
period must begin at least 6 months before the
Participant attains Qualified Early Retirement Age
and end not more than 90 days before the
commencement of benefits. Any election hereunder
will be in writing and may be changed by the
Participant at any time.
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.
c) For purposes of this Section 7.10(G)(4):
(i) Qualified Early Retirement Age is the latest
of: (i) the earliest date, under the Plan, on which
the Participant may elect to receive retirement
benefits, (ii) the first day of the 120th month
beginning before the Participant reaches Normal
Retirement Date, or (iii) the date the Participant
begins participation.
(ii) Qualified Joint and Survivor Annuity is an
annuity for the life of the participant with a
survivor annuity for the life of the Spouse as
described in Section 7.10(D)(4).
(H) Nontransferability. Any annuity distributed from the
Plan must be nontransferable.
(I) Incorporation of Terms. 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.
7.11 DISTRIBUTIONS TO QUALIFIED PLANS. In the event a former
Employee whose accounts have not been fully distributed becomes an
active participant in a Plan qualified under Section 401(a) of the
Code, the Committee may direct the Trustee to transfer the amount in
such Participant's account(s) to any such Plan provided the Plan to
receive such transfers authorizes accepting the transfer, provides
that assets transferred shall be held in a separate account and
requires that the assets transferred shall not be subject to any
forfeiture provisions.
7.12 PROFIT SHARING PLANS AND 401(K) PROFIT SHARING PLANS ONLY
WITHDRAWAL OF EMPLOYER CONTRIBUTIONS. Subject to the provisions of
the Plan, in accordance with rules for giving notice as determined
by the Committee, and as elected in the Adoption Agreement, a
Participant may withdraw as of the first Accounting Date subsequent
to receipt by the Committee of such notice:
(A) An amount equal to not more than 100% of the
Participant's Employer Contribution Account determined as of
such Accounting Date. No Participant who has made any
withdrawal of Employer Contributions in the twelve (12) months
preceding the giving of such notice may make a withdrawal under
this Section.
(B) Notwithstanding anything to the contrary in this
Section 7.12, any withdrawal made pursuant to Section 7.12(A)
shall be for a minimum whole dollar amount not less than Five
Hundred Dollars ($500.00); except that if the amount available
for withdrawal is less than Five Hundred Dollars ($500.00) then
the minimum amount of the withdrawal shall be the amount
available.
(C) No forfeitures will occur solely as a result of an
Employee's withdrawal of Employer Contributions.
(D) Notwithstanding anything to the contrary in this
Section 7.12, a Participant may not make a withdrawal, pursuant
to this Section of any portion of the Participant's vested
interest which has been assigned to secure repayment of a loan
in accordance with Section 10.10, below, until such time as the
Committee shall have released said portion so assigned.
7.13. PROHIBITION AGAINST ALIENATION.
(A) Except as provided in Sections 401(a)(13) and 414(p)
of the Code, no benefit or interest available under this Plan
will be subject to assignment or alienation, either voluntarily
or involuntarily.
(B) The preceding sentence 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 the Committee determines that such
order is a qualified domestic relations order, as defined in
Section 414(p) of the Code, or any domestic relations order
entered before January 1, 1985.
(C) All rights and benefits, including elections, provided
to a Participant in this Plan shall be subject to the rights
afforded to any "alternate payee" under a "qualified domestic
relations order." Furthermore, an immediate distribution to an
"alternate payee" shall be permitted if such distribution is
authorized by a "qualified domestic relations order," even if
the affected Participant has not reached the "earliest
retirement age" under the Plan, provided that in no event will
any such distribution accelerate the repayment of any loan made
to the affected Participant under the Plan, unless such
Participant consents thereto in writing. For purposes of this
Section 7.13, "alternate payee," "qualified domestic relations
order" and "earliest retirement age" shall have the meaning set
forth under Code Section 414(p), unless a Qualified
Distribution Date has been selected in the Adoption Agreement,
in which case the earliest retirement age shall be the date on
which the domestic relations order is determined to be
qualified.
7.14 MISSING PARTICIPANT OR BENEFICIARY. Each Participant
and/or each Beneficiary must file with the Committee from time to
time in writing his or her post office address and each change of
post office address. Any communication, statement or notice
addressed to a Participant and/or Beneficiary at such last post
office address filed with the Committee or if no address is filed
with the Committee then at the last post office address as shown on
the Employer's records, will be binding on the Participant and/or
Beneficiary for all purposes of the Plan. Neither the Committee nor
the Trustee shall be required to search for or locate a Participant
or Beneficiary.
Any other provision of the Plan to the contrary
notwithstanding, if any application for a benefit has not been filed
by a Participant otherwise eligible therefor within ninety (90) days
after the Plan Year in which occurred his or her termination date,
the Committee shall mail to such Participant and/or Beneficiary at
his or her last known address an application for benefit and a
reminder that he or she is eligible for such benefit. If such
application is not filed with the Committee in accordance with the
provisions of the Plan within ninety (90) days after it is so mailed
to such Participant or his or her termination date, whichever is
later, the benefit shall be forfeited and shall be used to reduce
future Employer Contributions as though the Participant were not
vested in his or her accounts as of the end of said ninety (90) day
period. Upon the subsequent filing of an application therefor by
the Participant and/or his Beneficiary, such accounts shall be
immediately reinstated pursuant to this provision as though the
Participant were 100% vested in his or her accounts in an amount
equal to the cash value of the accounts on the date forfeited. To
the extent forfeited amounts are not available, the Employer shall
contribute the amount required to reinstate the Participant's
account balance.
7.15 LIMITATION ON CERTAIN DISTRIBUTIONS. Notwithstanding
anything contained herein to the contrary, the Trustee may, in its
discretion, delay satisfying requests for distributions for up to
one year where distributions require amounts to be withdrawn from
the Guaranteed Investment Contract Fund; provided, however, that in
no event shall the Trustee delay distributions to a Participant
beyond the legally required time for distribution as set forth in
Section 7.5.
7.16 FORM OF DISTRIBUTIONS AND WITHDRAWALS. The Trustee shall
make all distributions and withdrawals under the Plan, including
Hardship withdrawals, other withdrawals while the Participant is
still employed, and distributions upon retirement, disability, death
and separation from service, pro rata, from all accounts and
Investment Funds, as follows:
(A) In a Plan with no Employer Stock Fund, all withdrawals
and distributions under the Plan shall be made in cash.
(B) In a Plan with an Employer Stock Fund:
(1) Withdrawals and distributions under the Plan
from the other Investment Fund(s) shall be made in cash.
(2) Withdrawals and distributions under the Plan from
the Employer Stock Fund may be made in cash or in full
shares of Employer Stock, with any fractional share paid
in cash, as elected by the Participant. For the cash
portion of any distribution or withdrawal, the Participant
will receive the cash proceeds from the sale of shares of
Employer Stock as of the sale date.
ARTICLE VIII
DIRECT ROLLOVERS
8.1 GENERAL. This Article applies to distributions made on or
after January 1, 1993. Notwithstanding any provision of the Plan to
the contrary that would otherwise limit a distributee's election
under this Article, a distributee may elect, at the time and in the
manner prescribed by the Plan administrator, to have any portion of
an eligible rollover distribution paid directly to an eligible
retirement Plan specified by the distributee in a direct rollover.
8.2 DEFINITIONS.
(A) Eligible rollover distribution: An eligible rollover
distribution is any distribution of all or any portion of the
balance to the credit of the distributee, except that an
eligible rollover distribution does not include: any
distribution that is one of a series of substantially equal
periodic payments (not less frequently than annually ) made for
the life (or life expectancy) of the distributee or the joint
lives (or joint life expectancies) of the distributee and the
distributee's designated Beneficiary, or for a specified period
of ten years or more; any distribution to the extent such
distribution is required under section 401(a)(9) of the Code;
and the portion of any distribution that is not includible in
gross income (determined without regard to the exclusion for
net unrealized appreciation with respect to employer
securities).
(B) Eligible retirement Plan: An eligible retirement Plan
is an individual retirement account described in section 408(a)
of the Code, an individual retirement annuity described in
section 408(b) of the Code, an annuity Plan described in
section 403(a) of the Code, or a qualified trust described in
section 401(a) of the Code, that accepts the distributee's
eligible rollover distribution. However, in the case of an
eligible rollover distribution to the surviving spouse, an
eligible retirement Plan is an individual retirement account or
individual retirement annuity.
(C) Distributee: A distributee includes an Employee or
former Employee. In addition, the Employee's or former
Employee's surviving Spouse and the Employee's or former
Employee's Spouse or former Spouse who is the alternate payee
under a qualified domestic relations order, as defined in
section 414(p) of the Code, are distributees with regard to the
interest of the Spouse or former Spouse.
(D) Direct Rollover: A direct rollover is a payment by
the Plan to the eligible retirement Plan specified by the
distributee.
(E) Waiver of Notice. If a distribution is one to which
Sections 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.
ARTICLE IX
TOP-HEAVY PROVISIONS
9.1 USE OF TOP-HEAVY PROVISIONS. If the Plan becomes a Top-
heavy Plan in any Plan Year after December 31, 1983, the provisions
of this Article IX will supersede any conflicting provision in the
Plan or the Adoption Agreement. The Committee has sole
responsibility to make the determination as to the top-heavy status
of the Plan.
9.2 TOP-HEAVY DEFINITIONS.
(A) 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 Section 415(b)(1)(A) of the Code, an owner (or
considered an owner under Section 318 of the Code) of one of
the ten largest interests in the Employer if such individual's
Compensation exceeds 100% of the dollar limitation under
Section 415(c)(1)(A) of the Code, a 5 per cent owner of the
Employer, or a 1 per cent owner of the Employer who has an
annual Compensation of more than $150,000. Annual compensation
means compensation as defined in Item B(4)(a) of the Adoption
Agreement, but including amounts contributed by the Employer
pursuant to a salary reduction agreement which are excludable
from the Employee's gross income under Section 125, Section
402(e)(3), Section 402(h)(1)(B) or Section 403(b) of the Code.
The determination period is the Plan Year containing the
Determination Date and the 4 preceding Plan Years.
The determination of who is Key Employee will made by the
Committee in accordance with Section 416(i)(1) of the Code and
the regulations thereunder.
(B) Top-heavy Plan: This Plan, for any Plan Year
beginning after December 31, 1983, if any of the following
conditions exists:
(1) If the Top-heavy Ratio for this Plan exceeds 60
percent and this Plan is not part of any Required
Aggregation Group or Permissive Aggregation Group of
plans.
(2) If this Plan is a part of a Required Aggregation
Group of plans but not part of a Permissive Aggregation
Group and the Top-heavy Ratio for the group of plans
exceeds 60 percent.
(3) If this Plan is a part of a Required Aggregation
Group and part of a Permissive Aggregation Group of plans
and the Top-heavy Ratio for the Permissive Aggregation
Group exceeds 60 percent.
(C) Top-heavy Ratio: For purposes of determining if the
Plan is a Top-heavy Plan:
(1) If the Employer maintains one or more defined
contribution plans (including any Simplified employee
pension Plan) and the Employer has not maintained any
defined benefit Plan which during the 5year period ending
on the Determination Date(s) has or has had accrued
benefits, the Top-heavy Ratio for this Plan alone or for
the Required or Permissive Aggregation Group as
appropriate is a fraction, the numerator of which is the
sum of the account balances of all Key Employees as of the
Determination Date(s) (including any part of any account
balance distributed in the 5year period ending on the
Determination Date(s)), and the denominator of which is
the sum of all account balances (including any part of any
account balance distributed in the 5year period ending on
the Determination Date(s), both computed in accordance
with Section 416 of the Code 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
Section 416 of the Code and the regulations thereunder.
(2) If the Employer maintains one or more defined
contribution plans (including any Simplified Employee
Pension Plan) and the Employer maintains or has maintained
one or more defined benefit plans which during the 5year
period ending on the Determination Date(s) has or has had
any accrued benefits, the Top-heavy Ratio for any Required
or Permissive Aggregation Group as appropriate is a
fraction, the numerator of which is the sum of account
balances under the aggregated defined contribution plan or
plans for all Key Employees determined in accordance with
(1) above, and the Present Value of accrued benefits under
the aggregated defined benefit plan or plans for all Key
Employees as of the Determination Date(s), and the
denominator of which is the sum of the account balances
under the aggregated defined contribution plan or plans
for all Participants, determined in accordance with (1)
above, and the Present Value of accrued benefits under the
defined benefit plan or plans for all Participants as of
the Determination Date(s), all determined in accordance
with Section 416 of the Code and 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 five-year period ending on the Determination Date.
(3) For purposes of (1) and (2) above, the value of
account balances and the Present Value of accrued benefits
will be determined as of the most recent Valuation Date
that falls within or ends with the 12month period ending
on the Determination Date, except as provided in Section
416 of the Code 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
(a) who is not a Key Employee but who was a Key Employee
in a prior year, or (b) who has not been credited with at
least one Hour of Service with any Employer maintaining
the Plan at any time during the five-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 Section 416
of the Code and the regulations thereunder. Voluntary
deductible employee contributions will not be taken into
account for purposes of computing the Top-heavy Ratio.
When aggregating plans the value of account balances and
accrued benefits will be calculated with reference to the
Determination Dates that fall within the same calendar
year.
The accrued benefit of a Participant other than a Key
Employee shall be determined under (a) the method, if any,
that uniformly applies for accrual purposes under all
defined benefit plans maintained by the Employer, or (b)
if there is no such method, as if such benefit accrued not
more rapidly than the slowest accrual rate permitted under
the fractional rule of Section 411(b)(1)(C) of the Code.
(D) Permissive Aggregation Group: The Required
Aggregation Group of plans plus any other Plan or plans of the
Employer which, when considered as a group with the Required
Aggregation Group, would continue to satisfy the requirements
of Section 401(a)(4) and Section 410 of the Code.
(E) Required Aggregation Group: (1) Each qualified Plan
of the Employer in which at least one Key Employee participates
or participated at any time during the determination period
(regardless of whether the Plan has terminated), and (2) any
other qualified Plan of Employer which enables a Plan described
in (1) to meet the requirements of Section 401(a)(4) or Section
410 of the Code.
(F) Determination Date: For purposes of determining if
there is a Key Employee and for calculating the Top-heavy
Ratio: 1) for any Plan Year subsequent to the first Plan Year,
the last day of the preceding Plan Year, and 2) for the first
Plan Year of the Plan, the last day of that year.
(G) Valuation Date: The date specified in Item B(14)(c)
of the Adoption Agreement as of which account balances or
accrued benefits are valued for purposes of calculating the
Top-heavy Ratio.
(H) Present Value: Present Value shall be based only on
the interest and mortality rates specified in the Adoption
Agreement.
9.3 MINIMUM ALLOCATION.
(A) Except as otherwise provided in Section 9.3(C) and (D)
below, the Employer Contributions and forfeitures allocated on
behalf of any Participant who is not a Key Employee shall not
be less than the lesser of three per cent (3%) of such
Participant's Compensation or in the case where the Employer
has no defined benefit Plan which designates this Plan to
satisfy Section 401 of the Code, the largest percentage of
Employer contributions and forfeitures, as a percentage of the
Key Employee's Compensation, as limited by Section 401(a)(17)
of the Code, allocated on behalf of any Key Employee for that
year. The minimum allocation is determined without regard to
any Social Security contribution. This minimum allocation
shall be made even though, under other Plan provisions, the
Participant would not otherwise be entitled to receive an
allocation or would have received a lesser allocation for the
year because of (i) such Participants failure to complete 1,000
Hours of Service (or any other equivalent provided in the Plan)
or (ii) the Employee's failure to make mandatory contributions
or (iii) Compensation less than a stated amount.
(B) For purposes of computing the minimum allocation,
Compensation shall mean Compensation as defined in Section
6.6(A) as limited by Section 401(a)(17) of the Code.
(C) Section 9.3(A) shall not apply to any Participant who
was not employed by the Employer on the last day of the Plan
Year.
(D) Section 9.3(A) shall not apply to any Participant to
the extent the Participant is covered under any other plan or
plans of the Employer and the Employer has provided in Item
B(14) of the Adoption Agreement that the minimum allocation or
benefit requirement applicable to Top-heavy Plans will be met
in the other plan or plans.
(E) The minimum allocation required (to the extent
required to be nonforfeitable under Section 416(b) of the Code)
may not be forfeited under Section 411(a)(3)(B) or Section
411(a)(3)(D) of the Code.
(F) For each Plan Year in which the Paired Plans are Top-
heavy, the Top-heavy requirements set forth in Article VIII of
the Plan and Item B(14) of the Adoption Agreement shall apply.
(G) Neither Before Tax Contributions nor Matching
Contributions may be taken into account for the purpose of
satisfying the minimum Top-heavy contribution requirements.
9.4 MINIMUM VESTING SCHEDULES. For any Plan Year in which
this Plan is a Top-heavy Plan, the vesting schedule elected by the
Employer in Item B(14) and/or C(4)(d) of the Adoption Agreement will
automatically apply to the Plan. The minimum vesting schedule
applies to all benefits within the meaning of Section 411(a)(7) of
the Code except those attributable to Employee contributions,
including benefits accrued before the effective date of Section 416
and benefits accrued before the Plan became a Top-heavy Plan.
Further, no decrease in a Participant's nonforfeitable percentage
may occur in the event the Plan's status as a Top-heavy Plan changes
for any Plan Year. However, this Section 9.4 does not apply to the
account balance of any Employee who does not have an Hour of Service
after the Plan has initially become a Top-heavy Plan and such
Employee's account balance attributable to employer contributions
and forfeitures will be determined without regard to this Section
9.4.
ARTICLE X
TRUSTEE
10.1 TRUSTEE. The Trustee shall receive, hold, invest,
administer and distribute the Trust Fund in accordance with the
provisions of the Plan as herein set forth.
10.2 RECORDS AND ACCOUNTS OF TRUSTEE. The Trustee shall
maintain accurate and detailed records and accounts of all its
transactions of the Trust Fund, which shall be available at all
reasonable times for inspection or audit by any person designated by
the Employer and by any other person or entity to the extent
required by law.
10.3 REPORTS TO EMPLOYER. As soon as practicable following the
close of each accounting period and following the effective date of
the termination of the Plan, the Trustee shall file a written report
with the Employer. The report shall set forth all transactions with
respect to the Trust Fund during the period listing the Trust Fund
assets with their market value as of the close of the period covered
by the report.
10.4 POWERS OF TRUSTEE. The Trustee shall administer the Trust
Fund as a nondiscretionary Trustee, and the Trustee shall not have
any discretion or authority with regard to the investment of the
Trust Fund and shall act solely as a directed Trustee of the fund
contributed to it. The Trustee, as a nondiscretionary Trustee, as
may be directed by the Employer (or the Participants to the extent
provided herein) is authorized and empowered, by way of limitation,
with the following powers, rights and duties, each of which the
Trustee shall exercise in a nondiscretionary manner as directed in
accordance with the direction of the Employer (or the Participants)
as a Named Fiduciary (except to the extent that Plan assets are
subject to the control and management of a properly appointed
Investment Manager):
(A) At the direction of the Named Fiduciary, to sell,
write options on, convey or transfer, invest and reinvest any
part thereof in each and every kind of property, whether real,
personal or mixed, tangible or intangible, whether income or
non-income producing and wherever situated, including, but not
limited to, time deposits (including time deposits in the
Trustee or its affiliates, or any successor thereto, if the
deposits bear a reasonable rate of interest), fee simple,
leasehold or lesser estates in real estate, shares of common
and preferred stock, mortgages, bonds, leases, notes,
debentures, equipment or collateral trust certificates, rights,
warrants, convertible or exchangeable, and other corporate,
individual or government securities or obligations, annuity,
retirement or other insurance contracts, mutual funds
(including funds for which the Trustee or its affiliates serve
as investment advisor), units of group or collective trusts
established to permit the pooling of funds of separate pension
and profit sharing trusts, provided the Internal Revenue
Service has ruled such group 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
in units of any other common, collective or commingled trust
fund heretofore or hereafter established and maintained by the
Trustee or its affiliates; as long as the Trustee holds any
units hereunder, the instrument establishing such common trust
fund (including all amendments thereto) shall be deemed to have
been adopted and made a part of this Plan, and such other
investments as the Named Fiduciary shall direct the Trustee to
invest Plan assets or hold as an Investment Fund for the
investment of Plan assets pursuant to Participant direction.
(B) At the direction of the Named Fiduciary, to sell,
convert, redeem, exchange, grant options for the purchase or
exchange of, or otherwise dispose of any property held
hereunder, at public or private sale, for cash or upon credit
with or without security, without obligation on the part of any
person dealing with the Trustee to see to the application of
the proceeds of or to inquire into the validity, expediency, or
propriety of any such disposal;
(C) At the direction of the Named Fiduciary, to manage,
operate, repair, partition and improve and mortgage or lease
(with or without an option to purchase) for any length of time
any property held in the Trust Fund; to renew or extend any
mortgage or lease, upon such terms as the Trustee may deem
expedient; to agree to reduction of the rate of interest on
any mortgage; to agree to any modification in the terms of any
lease or mortgage, or of any guarantee pertaining to either of
them; to exercise and enforce any right of foreclosure; to bid
in property on foreclosure; to take a deed in lieu of
foreclosure with or without paying consideration therefor and
in connection therewith to release the obligation on the bond
secured by the mortgage; and to exercise and enforce in any
action, suit or proceeding at law or in equity any rights,
covenants, conditions, or remedies with respect to any lease or
mortgage or to any guarantee pertaining to either of them or to
waive any default in the performance thereof;
(D) In accordance with the direction of a Named Fiduciary,
to vote, personally or by general or limited proxy, any shares
of stock or other securities held in the Trust Fund, provided
that all voting rights pertaining to shares of any financial
institution in the state where the Trustee is located shall be
exercised by the trustee only if and as directed in writing by
the Committee; provided further, that the Trustee and the
Employer may agree in writing that such voting rights be passed
through to the Participant's in proportion to their interest in
the Investment Funds, to delegate discretionary voting power to
the trustees of a voting trust for any period of time; and to
exercise or sell, personally or by power of attorney, any
conversion or subscription or other rights appurtenant to any
securities or other property held in the Trust Fund;
(E) As may be directed by the Named Fiduciary, to join in
or oppose any reorganization, recapitalization, consolidation,
merger or liquidation, or any Plan therefor, or any lease (with
or without an option to purchase), mortgage or sale of the
property of any organization the securities of which are held
in the Trust Fund; to pay from the Trust Fund any assessments,
charges, or compensation specified in any Plan of
reorganization, recapitalization, consolidation, merger or
liquidation; to deposit any property with any committee or
depository; and to retain any property allotted to the Trust
Fund in any reorganization, recapitalization, consolidation,
merger or liquidation;
(F) In accordance with the written instructions of a Named
Fiduciary, to settle, compromise or commit to arbitration any
claim, debt or obligation of or against the Trust Fund; to
enforce or abstain from enforcing any right, claim, debt, or
obligation; and to abandon any property determined by it to be
worthless;
(G) As may be directed by the Named Fiduciary, to continue
to hold any property of the Trust Fund, whether or not
productive of income; to reserve from investment and keep
unproductive of income, without liability for interest, such
cash as it deems advisable and, consistent with its obligations
as Trustee hereunder, to hold such cash in a demand deposit in
the Trustee bank, its affiliates, or any successor thereto;
(H) To hold property of the Trust Fund in its own name, or
in the name of nominee, without disclosure of this trust, or in
bearer form so that it may pass by delivery, and to deposit
property with any depository, but no such holding or depositing
shall relieve the Trustee of its responsibility for the safe
custody and disposition of the Trust Fund in accordance with
the provisions of this agreement as may be directed by the
Named Fiduciary, and the Trustee's records shall at all times
show that such property is part of the Trust Fund;
(I) As directed by the Named Fiduciary, to make, execute
and deliver, as Trustee, any deeds, conveyances, leases (with
or without option to purchase), mortgages, options, contracts,
waivers, or other instruments that the Trustee shall deem
necessary or desirable in the exercise of its powers under this
agreement;
(J) To employ, at the expense of the Employer or the Trust
Fund, agents and delegate to them such duties as the Trustee
sees fit; the Trustee shall not be responsible for any loss
occasioned by any such agents selected by it with reasonable
care; the Trustee may consult with legal counsel (who may be
counsel for the Employer) concerning any questions which may
arise with reference to its power or duties under this Plan,
and the written opinion of such counsel shall be full and
complete protection with respect to any action taken or not
taken by the Trustee in good faith and in accordance with the
written opinion of such counsel;
(K) To pay out of the Trust Fund any taxes imposed or
levied with respect to the Trust Fund and may contest the
validity or amount of any tax, assessment, penalty, claim or
demand respecting the Trust Fund; however, unless the Trustee
shall have first been indemnified to its satisfaction, it shall
not be required to contest the validity of any tax, or to
institute, maintain or defend against any other action or
proceeding either at law or in equity;
(L) To make loans to Participants in accordance with
policies established by the Committee and in accordance with
the terms of the Plan and the and to segregate or otherwise
identify property of the Trust Fund as directed by the
Committee for such purpose including providing collateral for
loans made pursuant to the Plan.
10.5 TRUSTEE'S FEES AND EXPENSES. The Trustee shall be
entitled to receive reasonable fees for its services hereunder in
accordance with its schedule of fees then in effect and shall be
entitled to receive reimbursement for all reasonable expenses
incurred by it in the administration of this Plan. Except to the
extent that the Employer shall pay such fees and expenses, they
shall be charged to and collected by the Trustee from each
Participant's accounts. The Trustee's fees and expenses for
extraordinary services in connection with any Participant's accounts
may be charged to and collected by the Trustee from such accounts.
10.6 TRUSTEE MAY RESIGN OR BE REMOVED. The Trustee may resign
by written notice to the Employer which shall be effective sixty
(60) days after delivery unless the Trustee and the Employer agree
to an earlier effective date. The Trustee may be removed by the
Employer by written notice to the Trustee which shall be effective
sixty (60) days after delivery unless the Trustee and the Employer
agree to an earlier effective date. Prior to the effective date of
such resignation or removal, the Employer shall amend its Plan to
eliminate any reference to the PRISM<reg-trade-mark> Prototype
Retirement Plan and Trust, and appoint a new trustee. The Trustee
shall deliver the Trust Fund to its successor on the effective date
of resignation or removal, or as soon after such effective date as
practicable. However, the Trustee may first subtract any amounts
owed it from the Trust Fund for compensation, expenses and taxes
due.
If the Employer fails to so amend the Plan and appoint a
successor trustee within the sixty (60) days, or longer period as
the Trustee permits in writing, the Trustee shall apply to a court
of competent jurisdiction for appointment of a successor trustee.
10.7 SEPARATE INVESTMENT FUNDS.
(A) The assets of the Trust Fund shall be held in such
number of Investment Funds as the Employer and the Trustee may
agree, plus an Employer Stock Fund if selected by the Employer
in the Adoption Agreement, as the Employer shall designate in
writing on the Investment Fund Designation form affixed to the
Adoption Agreement. Such Investment Funds shall be selected by
the Employer from among the funds offered by the Trustee for
use as Investment Funds in the PRISM<reg-trade-mark> Prototype
Retirement Plan & Trust. The Trustee reserves the right to
change the funds available for use as Investment Funds in the
PRISM<reg-trade-mark> Prototype Retirement Plan & Trust, from
time to time, and the Employer agrees to execute an amended
Investment Fund Designation form to reflect any such changes as
may impact the Investment Funds available to the Employer's
Plan. The Employer hereby acknowledges that, available as
Investment Funds are interests in registered investment
companies (i.e. mutual funds) for which the sponsoring
organization, 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 acknowledges that it, as Named Fiduciary, has the sole
responsibility for selection of the Investment Funds offered
under the Plan, and it has done so on the basis of the
Employer's determination, after due inquiry, of the
appropriateness of the selected Investment Funds as vehicles
for the investment of Plan assets pursuant to the terms of the
Plan, considering all relevant facts and circumstances,
including but not limited to (i) the investment policy and
philosophy of the Employer developed pursuant to ERISA Section
402(b)(1); (ii) the Participants, including average level of
investment experience and sophistication; (iii) the ability of
Participants, using an appropriate mix of Investment Funds, to
diversify the investment of Plan assets held for their benefit;
(iv) the ability of Participants to, utilizing an appropriate
mix of Investment Funds, to structure an investment portfolio
within their account in the Plan with risk and return
characteristics within the normal range of risk and return
characteristics for individuals with similar investment
backgrounds, experience and expectations; and, (v) in making
the selection of Investment Funds, the Employer did not rely on
any representations or recommendations from the Trustee or any
of its employees, except as may have been provided through
written materials, including marketing materials provided by
the various sponsors or distributors of the Investment Funds,
and that the Investment Fund selection has not be influenced,
approved, or encouraged through the actions of the Trustee or
its employees.
For purposes of the Plan, "Employer Stock" shall mean
common stock listed on a recognized securities exchange issued
by an Employer of Employees covered by the Plan or by an
affiliate of such Employer and which shall be a "qualifying
employer security" as defined in ERISA. The Employer Stock
Fund shall be invested and reinvested in shares of Employer
Stock, which stock shall be purchased by the Trustee to the
extent not contributed to the Plan by the Employer, except for
amounts which may reasonably be expected to be necessary to
satisfy distributions to be made in cash. No Employer Stock
shall be acquired or held in any Investment Fund other than the
Employer Stock Fund. Up to 100% of the assets of the Trust Fund
may be invested in Employer Stock.
All contributions shall be allocated by the Trustee to the
Plan's Investment Funds specified by the Employer. Dividends,
interest and other distributions shall be reinvested in the
same Investment Fund from which received.
Employers sponsoring 401(k) profit sharing plans may elect
to determine the Investment Funds, including an Employer Stock
Fund, if applicable, into which Matching Contributions and/or
Employer Contributions will be invested and/or into which
Participants may not direct contributions. By making these
designations, the Employer shall be deemed to have advised the
Trustee in writing regarding the retention of investment
powers.
Notwithstanding the foregoing provisions of this Section
10.7(A), the Trustee may, in its discretion, accept certain
investments which have been, and are, held as part of the Trust
Fund prior to the date the Employer adopted this Plan. Such
investments shall be considered investments directed by the
Employer or an Investment Committee for the Plan ("I nvestment
Committee"), if one is acting. The Trustee shall hold,
administer and dispose of such investments in accordance with
directions to the Trustee contained in a written notice from
the Employer or Investment Committee. Any such notice shall
advise the Trustee regarding the retention of investment powers
by the Employer or the Investment Committee and shall be of a
continuing nature or otherwise, and may be revoked in writing
by the Employer or Investment Committee.
The Trustee shall not be liable but shall be fully
protected by reason of its taking or refraining from taking any
action at the direction of the Employer or Investment
Committee, nor shall the Trustee be liable but shall be fully
protected by reason of its refraining from taking any action
because of the failure of the Employer or the Investment
Committee to give a direction or order. The Trustee shall be
under no duty to question or make inquiry as to any direction,
notification or order or failure to give a direction,
notification or order by the Employer or the Investment
Committee. The Trustee shall be under no duty to make any
review of investments directed by the Employer or Investment
Committee acquired for the Trust Fund and under no duty at any
time to make any recommendation with respect to disposing of or
continuing to retain any such investments. While the Employer
may direct the Trustee with respect to Plan investments, the
Employer may not (1) borrow from the Fund or pledge any assets
of the Fund as security for a loan; (2) buy property or assets
from or sell property or assets to the Fund; (3) charge any fee
for services rendered to the Fund; or (4) receive any services
from the Fund on a preferential basis.
The Employer hereby indemnifies and holds the Trustee or
its nominee harmless from any and all actions, claims, demands,
liabilities, losses, damages or reasonable expenses of
whatsoever kind and nature in connection with or arising out of
(1) any action taken or omitted in good faith or any investment
or disbursement of any part of the Trust Fund made by the
Trustee in accordance with the directions of the Employer or
the Investment Committee or any inaction with respect to any
Employer or Investment Committee directed investment or with
respect to any investment previously made at the direction of
the Employer or Investment Committee in the absence of
directions from the Employer or Investment Committee therefor,
or (2) any failure by the Trustee to pay for any property
purchased by the Employer or the Investment Committee for the
Trust Fund by reason of the insufficiency of funds in the Trust
Fund.
Anything hereinabove to the contrary notwithstanding, the
Employer shall have no responsibility to the Trustee under the
foregoing indemnification if the Trustee knowingly participated
in or knowingly concealed any act or omission of the Employer
or Investment Committee knowing that such act or omission
constituted a breach of fiduciary responsibility, or if the
Trustee fails to perform any of the duties undertaken by it
under the provisions of this Plan, or if the Trustee fails to
act in conformity with the directions of an authorized
representative of the Employer or the Investment Committee.
(B) Each Participant shall by such mechanism as may be
agreed upon between the Trustee and Employer, direct that the
contributions made to his or her accounts for which the
Participant may direct investments, as selected by the Employer
in the Adoption Agreement, be invested in one or more of the
Investment Funds, including the Employer Stock Fund, if
applicable. At the time an Employee becomes eligible for the
Plan, he or she shall specify the percentage of his or her
accounts (expressed in percentage increments as may be agreed
to between the Employer and the Trustee) to be invested pro
rata in each such Investment Fund.
(C) Upon prior written notice to the Trustee, or other
form of notice acceptable to the Trustee, a Participant may
change an investment direction with respect to future
contributions. Through acceptable notice to the Trustee, the
Participant may elect to transfer all or a portion of such
Participant's interest in each Investment Fund (based on the
value of such interest on the Valuation Date immediately
preceding such election), including an Employer Stock Fund, if
applicable, to any other of the Investment Funds selected by
the Employer so that the Participant's interest in the said
Investment Funds immediately after the transfer is allocated in
percentage increments as may be agreed to by the Employer and
the Trustee.
Notwithstanding any Participant's election to change
Investment Funds, the Trustee may, in its discretion, delay
satisfaction of requests to change from a guaranteed investment
contract fund for up to one year, or delay satisfaction of
changes in Investment Funds pending settlement of prior changes
in Investment Funds.
(D) The Employer will be responsible when transmitting
Employer and Employee 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.
(F) In a 401(k) profit sharing Plan where the Employer has
elected to invest a portion or all of the Matching
Contributions and/or Employer Contributions in the Employer
Stock Fund, then the following shall apply:
If selected by the Employer in the Adoption Agreement, a
Participant who is fifty-five (55) years of age or older and
who is 100% vested in his Matching Contribution account and/or
Employer Contribution account may elect to have the Employer
Stock (and any earnings thereon) attributable to such Matching
Contributions and/or Employer Contributions diversified in the
other Investment Funds under the Plan in accordance with the
following rules and limitations. The amount of Employer Stock
which may be diversified each Plan Year shall be determined in
accordance with the following schedule:
If the age attained by the then the percent of the
Participant during the number of whole shares
Plan Year is: (rounded to the nearest
whole number) credited to
the Participants' Matching
Account and/or Employer
Contribution Account on the
last day of the preceding
Plan Year which may be
diversified pursuant to the
rules below may not exceed
55 25%
56 25%
57 30%
58 40%
59 50%
60 60%
61 70%
62 80%
63 90%
64 100%
The election to diversify may only be made once each
Plan Year. The election may be made in any month by
providing notice to the Committee in accordance with the
frequency selected by the Employer for other Investment
Fund changes under the Plan. Each election to make a
transfer pursuant to this Section shall specify the
Investment Fund(s) into which the shares subject to
diversification will be reinvested so that the
Participant's interest in the said Investment Fund(s),
immediately after the transfer, is allocated in increments
as may be allowed by the Trustee. Thereafter, the
Participant's interest in said Investment Fund(s) shall be
subject to transfer in accordance with this Section.
(G) Forfeitures arising under the Plan will be invested in
an Investment Fund as may be selected in the discretion of the
Employer.
(H) In the event the Trust holds life insurance, the
following restrictions shall apply:
(1) Limitations on Premium Payments
(a) If ordinary or whole life insurance
contracts are purchased on the life of a Participant,
less than one-half of the insured Participant's
current allocation of contributions will be used to
pay premiums attributable to such insurance.
Ordinary or whole life insurance contracts are those
with both nondecreasing benefits and nonincreasing
premiums.
(b) If term or universal life insurance
contracts are purchased, no more than one-quarter of
the insured Participant's current allocation of
contributions will be used to pay premiums
attributable to such insurance.
(c) If a combination of ordinary or whole life
insurance contracts and term or universal life
insurance contracts are purchased, the sum of one-
half of the ordinary life insurance premiums and all
other life insurance premiums will not exceed one-
fourth of the aggregate employer contributions
allocated to any participant.
(2) The Plan Administrator will direct the Trustee to
convert the entire value of any life insurance contract at
or before the Participant's actual retirement or
distribution on termination of employment, but not later
than the Participant's Required Beginning Date to provide
cash values or retirement annuity income, or, subject to
the Joint and Survivor Annuity waiver requirements of
Section 7.10, the Plan Administrator may direct the
Trustee to distribute the insurance contract directly to
the Participant.
(3) The Trustee, at the direction of the Employer
shall be entitled to exercise all rights and options with
respect to any such life insurance contracts held by the
Plan.
10.8 REGISTRATION, DISTRIBUTION AND VOTING OF EMPLOYER STOCK
AND PROCEDURES REGARDING TENDER OFFERS.
(A) All voting rights on shares of Employer Stock held in
the Employer Stock Fund shall be exercised by the Trustee only
as directed by the Participants acting in their capacity as
"Named Fiduciaries" (as defined in Section 402 of the Act) in
accordance with the following provisions of this Section
10.8(A):
(1) As soon as practicable before each annual or
special shareholders' meeting of the Employer, the Trustee
shall furnish to each Participant sufficient copies of the
proxy solicitation material sent generally to
shareholders, together with a form requesting confidential
instructions on how the shares of Employer Stock allocated
to such Participant's account, and, separately, such
shares of Employer Stock as may be unallocated
("Unallocated Shares") or allocated to Participant
accounts but for which the Trustee does not receive timely
voting instruction from the Participant ("Non-Directed
Shares"), (including fractional shares to 1/1000th of a
share) are to be voted. The direction with respect to
Non-Directed Shares and Unallocated Shares shall apply to
such number of votes equal to the total number of votes
attributable to Non-Directed Shares and Unallocated Shares
multiplied by a fraction, the numerator of which is the
number of shares of Employer Stock credited to the
Participant's account and the denominator of which is the
total number of shares credited to the accounts of all
such Participants who have timely provided directions to
the Trustee with respect to Non-Directed Shares and
Unallocated Shares under this Section 10.8(A)(1). The
Employer and the Committee will cooperate with the Trustee
to ensure that Participants receive the requisite
information in a timely manner. The materials furnished
to the Participants shall include a notice from the
Trustee that the Trustee will vote any shares for which
timely instructions are not received by the Trustee as may
be directed by those voting Participants, acting in their
capacity as Named Fiduciaries of the Plan as provided
above. Upon timely receipt of such instructions, the
Trustee shall vote the shares as instructed. The
instructions received by the Trustee from Participants or
Beneficiaries shall be held by the Trustee in strict
confidence and shall not be divulged or released to any
person including directors, officers or employees of the
Employer, or of any other company, except as otherwise
required by law.
(2) With respect to all corporate matters submitted
to shareholders, all shares of Employer Stock shall be
voted only in accordance with the directions of such
Participants as Named Fiduciaries as given to the Trustee
as provided in Section 10.8(A)(1). With respect to shares
of Employer Stock allocated to the account of a deceased
Participant, such Participant's Beneficiary, as Named
Fiduciary, shall be entitled to direct the voting of
shares of Employer Stock as if such Beneficiary were the
Participant.
(B) All tender or exchange decisions with respect to
Employer Stock held in the Employer Stock Fund shall be made
only by the Participants acting in their capacity as Named
Fiduciaries with respect to the Employer Stock allocated to
their accounts in accordance with the following provisions of
this Section 10.8(B):
(1) In the event an offer shall be received by the
Trustee (including a tender offer for shares of Employer
Stock subject to Section 14(d)(1) of the Securities
Exchange Act of 1934 or subject to Rule 13e4 promulgated
under that Act, as those provisions may from time to time
be amended) to purchase or exchange any shares of Employer
Stock held by the Trust, the Trustee will advise each
Participant who has shares of Employer Stock credited to
such Participant's account in writing of the terms of the
offer as soon as practicable after its commencement and
will furnish each Participant with a form by which he may
instruct the Trustee confidentially whether or not to
tender or exchange shares allocated to such Participant's
account, and, separately, Unallocated Shares and Non-
Directed Shares (including fractional shares to 1/1000th
of a share). The directions with respect to Non-Directed
Shares and Unallocated Shares shall apply to such number
of Non-Directed Shares and Unallocated Shares equal to the
total number of Non-Directed Shares and Unallocated Shares
multiplied by a fraction, the numerator of which is the
number of shares of Employer Stock credited to the
Participant's account and the denominator of which is the
total number of shares credited to the accounts of all
such Participants who have timely provided directions to
the Trustee with respect to Non-Directed Shares and
Unallocated Shares under this Section 10.8(B). The
materials furnished to the Participants shall include (i)
a notice from the Trustee that, except as provided in this
Section 10.8(B), the Trustee will not tender or exchange
any shares for which timely instructions are not received
by the Trustee and (ii) such related documents as are
prepared by any person and provided to the shareholders of
the Employer pursuant to the Securities Exchange Act of
1934. The Committee and the Trustee may also provide
Participants with such other material concerning the
tender or exchange offer as the Trustee or the Committee
in its discretion determines to be appropriate; provided,
however, that prior to any distribution of materials by
the Committee, the Trustee shall be furnished with
sufficient numbers of complete copies of all such
materials. The Employer and the Committee will cooperate
with the Trustee to ensure that Participants receive the
requisite information in a timely manner.
(2) The Trustee shall tender or not tender shares or
exchange shares of Employer Stock (including fractional
shares to 1/1000th of a share) only as and to the extent
instructed by the Participants as Named Fiduciaries as
provided in Section 10.8(B)(1). With respect to shares of
Employer Stock allocated to the account of a deceased
Participant, such Participant's Beneficiary, as a Named
Fiduciary, shall be entitled to direct the Trustee whether
or not to tender or exchange such shares as if such
Beneficiary were the Participant. If tender or exchange
instructions for shares of Employer Stock allocated to the
account of any Participant are not timely received by the
Trustee, the Trustee will treat the nonreceipt as a
direction not to tender or exchange such shares. The
instructions received by the Trustee from Participants or
Beneficiaries shall be held by the Trustee in strict
confidence and shall not be divulged or released to any
person, including directors, officers or employees of the
Employer, or of any other company, except as otherwise
required by law.
(3) In the event, under the terms of a tender offer
or otherwise, any shares of Employer Stock tendered for
sale, exchange or transfer pursuant to such offer may be
withdrawn from such offer, the Trustee shall follow such
instructions respecting the withdrawal of such securities
from such offer in the same manner and the same proportion
as shall be timely received by the Trustee from the
Participants, as Named Fiduciaries, entitled under this
Section 10.8(B) to give instructions as to the sale,
exchange or transfer of securities pursuant to such offer.
(4) In the event an offer shall be received by the
Trustee and instructions shall be solicited from
Participants pursuant to Section 10.8(B)(13) regarding
such offer, and prior to termination of such offer,
another offer is received by the Trustee for the
securities subject to the first offer, the Trustee shall
use its best efforts under the circumstances to solicit
instructions from the Participants to the Trustee (i) with
respect to securities tendered for sale, exchange or
transfer pursuant to the first offer, whether to withdraw
such tender, if possible, and, if withdrawn, whether to
tender any securities so withdrawn for sale, exchange or
transfer pursuant to the second offer and (ii) with
respect to securities not tendered for sale, exchange or
transfer pursuant to the first offer, whether to tender or
not to tender such securities for sale, exchange or
transfer pursuant to the second offer. The Trustee shall
follow all such instructions received in a timely manner
from Participants in the same manner and in the same
proportion as provided in Section 10.8(B)(13). With
respect to any further offer for any Employer Stock
received by the Trustee and subject to any earlier offer
(including successive offers from one or more existing
offerors), the Trustee shall act in the same manner as
described above.
(5) A Participant's instructions to the Trustee to
tender or exchange shares of Employer Stock will not be
deemed a withdrawal or suspension from the Plan or a
forfeiture of any portion of the Participant's interest in
the Plan. Funds received in exchange for tendered shares
will be credited to the account of the Participant whose
shares were tendered and will be used by the Trustee to
purchase Employer Stock, as soon as practicable. In the
interim, the Trustee will invest such funds in short-term
investments permitted under the Plan, and in the same
manner in which forfeited amounts are invested.
(6) In the event the Employer initiates a tender or
exchange offer, the Trustee may, in its sole discretion,
enter into an agreement with the Employer not to tender or
exchange any shares of Employer Stock in such offer, in
which event, the foregoing provisions of this Section
10.8(B) shall have no effect with respect to such offer
and the Trustee shall not tender or exchange any shares of
Employer Stock in such offer.
(C) The Trustee acting with respect to the Employer Stock
Fund may with the consent of the Committee designate any
Employee or other Trustee as agent to solicit the instructions
to vote provided for in Subsection (A) of this Section, and
shall be held harmless in relying upon such agent's written
advice as to how shares are to be voted, and said Trustee may,
with the consent of the Committee, designate any Employee as
agent to solicit instructions from Participants regarding such
a tender offer, as required under Subsection (B) above, and
shall be held harmless in relying upon such agent's written
advice as to whether shares of Employer Stock are to be
tendered.
(D) The Employer shall be responsible for complying with
applicable federal and state securities laws and regulations.
10.9 VALUATION OF INVESTMENT FUNDS AND ACCOUNTS.
(A) As of each Valuation Date, the Trustee shall determine
the fair market value of each Investment Fund, including an
Employer Stock Fund, if any, being administered by the Trustee.
With respect to each such Investment Fund, the Trustee shall
determine (a) the change in value between the current Valuation
Date and the then last preceding Valuation Date, (b) the net
gain or loss resulting from expenses paid (including fees and
expenses, if any, which are to be charged to such Fund) and (c)
realized and unrealized gains and losses.
The transfer of funds to or from an Investment Fund
pursuant to Section 10.7(C) and payments, distributions and
withdrawals from an Investment Fund to provide benefits under
the Plan for Participants or Beneficiaries shall not be deemed
to be gains, expenses or losses of an Investment Fund.
After each Valuation Date, the Trustee shall allocate the
net gain or loss of each Investment Fund as of such Valuation
Date to the accounts of Participants participating in such
Investment Fund on such Valuation Date. Contributions,
forfeitures and rollovers received and credited to
Participants' accounts as of such Valuation Date, or as of any
earlier date since the last preceding Valuation Date shall not
be considered in allocating gains or losses allocated to
Participants' accounts.
(B) The reasonable and equitable decision of the Trustee
as to the value of each Investment Fund, including an Employer
Stock Fund, if any, and of any account as of each Valuation
Date shall be conclusive and binding upon all persons having
any interest, direct or indirect, in the Investment Funds or in
any account.
ARTICLE XI
ADMINISTRATION
11.1 COMMITTEE MEMBERSHIP. The Employer shall appoint a
Committee which shall consist of at least one member. The
Committee members will be named in the Adoption Agreement and may
be, but are not required to be, Employees of the Employer. All
members of the Committee shall serve at the pleasure of the
Employer. In the event that the Committee has more than one member,
one member shall serve as Chairman and one as Secretary. Any member
of the Committee may resign by notice in writing to the Employer.
Any vacancy in the Committee shall be filled by the Employer as soon
as practicable after a vacancy. If the Employer does not designate
a Committee, the Employer shall assume all of the duties of the
Committee.
11.2 POWERS AND DUTIES OF COMMITTEE. The Committee shall have
all powers and duties and only the powers and duties as are
specifically conferred upon it by this Plan or as the Employer may
delegate to or impose upon it consistent with the provisions of this
Plan, ERISA and the Code. Without limiting the generality of the
foregoing, the Committee shall have the following powers and duties:
(A) to interpret and construe the terms and provisions of
this Plan and to decide any questions which may arise
hereunder, including but not limited to
(1) the amount of a Participant's Compensation,
(2) a Participant's Years of Service,
(3) the age of any person who might be entitled to
receive benefits,
(4) the right of any person to receive benefits,
(5) the amount of any benefits to be paid to any
persons;
(B) to cause to be maintained all necessary records and
accounts under this Plan and to keep in convenient form any
data as may be necessary for valuation of the assets and
liabilities;
(C) to rely upon the records of the Employer or upon any
certificate, statement or other representation made to it by a
Participant, a Beneficiary, the authorized representative of
the Participant or Beneficiary, or the Trustee concerning any
fact required to be determined under any of the provisions of
this Plan, and the Committee shall not be required to make
inquiry into the propriety of any action by the Employer or the
Trustee;
(D) to give written notice to a Participant, a
Beneficiary, or the authorized representative of the
Participant or Beneficiary, of the amount of benefits payable
under this Plan;
(E) to make and enforce any rules, not inconsistent with
this Plan, as it shall deem necessary or proper for the
efficient administration of this Plan;
(F) to have and exercise such other authority as it deems
necessary to carry out the purposes and provisions of this
Plan, provided that any act of discretion permitted shall be
exercised in a uniform nondiscriminatory manner with respect to
individuals in like or similar circumstances;
(G) to adopt rules and guidelines for the administration
of this Plan, provided that they are not inconsistent with the
terms of this Plan and are uniformly applicable to all persons
similarly situated and to delegate in accordance with Section
11.8 such functions and duties as the Committee deems
advisable;
(H) to establish a funding policy and investment
objectives consistent with the purposes of the Plan and the
requirements of law;
(I) to employ such attorneys, accountants and agents as it
shall determine to assist it in carrying out its duties
hereunder.
Except as otherwise provided in this Plan or determined by
the Employer, any action or determination taken or made by the
Committee or any interpretation or construction made by the
Committee shall be final and shall be binding upon all persons.
The Committee shall at all times exercise the power and
authority given to it under this Plan in a fair, reasonable and
nondiscriminatory manner.
11.3 ACTIONS OF THE COMMITTEE. Any act authorized or required
to be taken by the Committee shall be taken by a decision of the
majority of the members acting at the time. Any decision of the
Committee may be expressed by a vote at a Committee meeting or in
writing, signed by all members of the Committee, without a meeting.
All allocation statements, notices, directions, approvals,
instructions and all other communications required or authorized to
be given by the Committee under this Plan shall be in writing and
signed by a majority of the members of the Committee. The Committee
may, however, by an instrument in writing signed by all the members
and filed with the Trustee, designate one or more if its members as
having the authority to sign all such communications on behalf of
the Committee. Until notified in writing to the contrary, the
Trustee shall be fully protected in acting in accordance with all
communications which it considers genuine and to have been signed on
behalf of the Committee by the members authorized to sign
communications. If at any time for any reason the Committee shall
be unable to act with respect to any matter, the Employer shall act
with respect to that matter and its action shall be final and it
shall be binding upon all persons.
11.4 RESIGNATION, REMOVAL AND DESIGNATION OF SUCCESSORS. Any
member of the Committee may resign at any time and any member may be
removed by the Employer with or without cause. In case of
resignation, death, removal or inability or failure for any cause of
any member of the Committee to serve or to continue to serve, a
successor shall be appointed by the Employer. The Committee shall
promptly notify the Trustee of any change in its membership.
11.5 COMMITTEE REVIEW. If any Participant, Spouse,
Beneficiary, or other authorized representative of a Participant,
Spouse or Beneficiary shall file an application with the Committee
for benefits under the Plan and the application is denied, in whole
or in part, such applicant shall be notified of the denial in
writing within ninety (90) days of receipt of the claim. The notice
to the applicant shall state that the Committee has denied the
application pursuant to the exercise of its discretionary powers.
This notice shall set forth the specific reasons for the denial,
specific reference to pertinent Plan provisions upon which the
denial is based, a description of any additional information needed
to perfect the claim with an explanation of why it is necessary and
an explanation of procedure for appeal.
Any Participant, Spouse, Beneficiary, or other authorized
representative of the Participant, Spouse or Beneficiary whose
application for benefits has been denied may, within sixty (60) days
after receiving the notification, make a written application to the
Committee to review the denial. The applicant may request that the
review be made by written statements sub mitted by the applicant and
the Committee, at a hearing, or by both. Any hearing shall be held
in the main offices of the Employer on a date and time as the
Employer shall designate with at least seven (7) days notice to the
applicant unless the applicant accepts shorter notice. Within sixty
(60) days after the review has been completed, the Employer shall
render a written decision and shall send a copy to the applicant.
This decision shall include specific reasons for the decision, as
well as specific references to the pertinent Plan provisions upon
which the decision is based.
If the Participant, Spouse, Beneficiary, or other authorized
representative of a Participant, Spouse or Beneficiary does not file
written notice with the Employer at the times set forth above, the
individual shall have waived all benefits under this Plan other than
as set forth in the notice from the Committee.
11.6 RECORDS. The Committee shall keep or cause to be kept
records of all meetings, proceedings and actions held, undertaken or
performed by it and shall furnish to the Employer reports as the
Employer may request.
11.7 COMPENSATION. The members of the Committee shall serve
without compensation for services as such, but all reasonably
incurred fees and expenses shall be paid by the Employer.
11.8 DESIGNATION OF NAMED FIDUCIARIES AND ALLOCATION OF
RESPONSIBILITY AMONG FIDUCIARIES. The Employer, the Committee and
the Trustee shall be "Named Fiduciaries" with respect to this Plan
as that term is defined in ERISA. The Named Fiduciaries shall have
only those specific powers, duties, responsibilities and obligations
as are given to them under this Plan. The Named Fiduciaries may
designate any person or persons as a fiduciary and may delegate to
such person or persons any one or more of their powers, functions,
duties and responsibilities with respect to the Plan as set forth in
this Plan, authorizing or providing for such direction, information
or action. Any such designation shall be made in writing and shall
become effective upon written acceptance. No such designation or
delegation by the Employer or the Committee of any of its powers,
authority or responsibilities to the Trustee shall become effective
unless such designation or delegation shall first be accepted by the
Trustee in a writing signed by it and delivered to the Employer or
the Committee, as applicable. Furthermore, each Named Fiduciary may
rely upon any such direction, information or action of another Named
Fiduciary as being proper under this Plan and is not required to
inquire into the propriety of any such direction, information or
action. It is intended that under this Plan each Named Fiduciary
shall be responsible for the proper exercise of its own powers,
duties, responsibilities and obligations and shall not be
responsible for act or failure to act of another fiduciary.
11.9 NOTICE BY COMMITTEE OR EMPLOYER. Any communication or
notice to any person by the Committee or the Employer shall be in
writing and may be given by delivery to the person or by first
class mail with postage prepaid addressed to the person at the last
address on file with the Committee or the Employer. Any notice
delivered as provided above shall be deemed to have been given when
delivered, and any notice mailed as provided above shall be deemed
to have been given when mailed.
11.10 LOANS TO PARTICIPANTS.
(A) (1) In accordance with Section 11.8 above, the
Committee is hereby designated as the named fiduciary with
sole authority and responsibility to approve or deny loans
and, except as provided in subsections (G) and (H) of this
Section, collect unpaid loans, in accordance with the
provisions of this Section 11.10. This Section 11.10
shall apply if the Employer is eligible to and elects Item
B(16) of the Adoption Agreement.
(2) Subject to the consent of the Committee, loans
may be made upon approval of the written application of a
Participant or Beneficiary submitted to the Committee.
Such application shall be submitted during a specified
period established by the Committee prior to the date the
loan is to be made. The Committee shall notify the
Participant or Beneficiary whether the loan has been
approved or denied. Loans shall be made available to all
Participants and Beneficiaries on a reasonably equivalent
basis, except that no loans will be made to any
Stockholder -Employee or Owner-Employee and no loan shall
be made to any Participant which the Committee, upon
reviewing the Participant's written application determines
may be reasonably expected to be unable to repay the loan.
Loans shall not be made available to Highly Compensated
Employees (as defined in Section 414(q) of the Code) in an
amount greater than the amount made available to other
Employees. Except for loans made prior to the date this
Plan is adopted, a Participant or Beneficiary shall have
no more than five loans outstanding at any given time.
(3) All loans will be adequately secured and will
bear a reasonable rate of interest. Rates of interest
will be determined daily by the Trustee for Plan loans.
The Committee will determine the minimum loan amount for
the Plan.
(B) In reviewing and approving or denying loan
applications hereunder, the Committee shall bear sole
responsibility for ensuring compliance with all applicable
federal or state laws and regulations, including the federal
Truth In Lending Act (15 U.S.C. Section1601 et seq.), and Equal
Credit Opportunity Act (15 U.S.C. Section 1691 et seq.). The
Committee shall upon request supply the Trustee with evidence
that it has complied with such federal or state law.
(C) Notwithstanding Section 7.13 above, each loan made
hereunder shall be secured by a written assignment, in favor of
the Plan, of that portion of the Participant's accounts which
the Committee determines to be necessary to adequately secure
repayment of the loan.
(D) A Participant must obtain the consent of his or her
Spouse, if any, to use the account balance as security for the
loan. Spousal consent shall be obtained no earlier than the
beginning of the ninety (90) day period that ends on the date
the loan is to be so secured. The consent must be in writing
and must be witnessed by a Plan representative or Notary
Public. Such consent shall thereafter be binding with respect
to the consenting spouse or any subsequent spouse with respect
to that loan. A new consent shall be required if the account
balance is used for renegotiation, extension, renewal, or other
revision of the loan.
Notwithstanding the preceding paragraph, no spousal
consent is required for the use of the account balance as
security for a Plan loan to the Participant under a safe-harbor
profit sharing Plan as described in Section 7.10(F).
(E) No loan shall be approved by the Committee to any
Participant or Beneficiary in any amount which exceeds the
lesser of
(1) $50,000, reduced by the excess (if any) of
(a) the highest outstanding balance of loans
from the Plan during the one-year period ending on
the day before the date on which such loan was made,
over,
(b) the outstanding balance of loans from the
Plan on the date on which such loan was made, or
(2) fifty percent (50%) of the present value of the
Participant's nonforfeitable accrued benefit.
For purposes of the above limitation, all loans from
all plans of the Employer and other members of a group of
employers described in Sections 414(b), (c), (m) and (o)
of the Code are aggregated.
The term of the loan shall be determined by the
Committee. Furthermore, any loan shall, by its terms
require that repayment (principal and interest) be
amortized in level payments, not less frequently than
quarterly over a period not extending beyond five years
from the date of the loan, except that the Committee, in
its discretion, may permit a repayment period in excess of
five years for loans made to a Participant or Beneficiary
used to acquire a dwelling unit which, within a reasonable
time (determined at the time the loan is made) will be
used as a principal residence of the borrower.
An assignment or pledge of any portion of the
participant's interest in the Plan will be treated as a
loan under this paragraph.
(F) Each loan hereunder shall be made pro rata from the
borrowing Participant's available accounts and Investment
Funds. Loan repayments shall generally be made via payroll
deduction, except that the repayment of outstanding principal
at maturity, in the event the loan is called, or in the event
the Participant chooses to prepay the loan shall be made in
such manner as the Committee shall determine. Loan repayments
and interest thereon shall be credited to the Investment Funds
and accounts in accordance with current elections. No loan
shall be considered a general investment of the Trust Fund.
Each loan shall be evidenced by a written agreement, evidencing
the Participant's obligation to repay the borrowed amount to
the Plan, in such form and with such provisions consistent with
this Section 11.10 as is acceptable to the Trustee. All loan
agreements shall be deposited with the Trustee.
(G) In the event a Participant does not repay the
principal of such loan or interest thereon at such times as are
required by the terms of the loan or if the Participant ceases
to be an Employee while such Participant has a loan made
hereunder which is outstanding, the Committee, in its
discretion, may direct the Trustee to take such action as the
Committee may reasonably determine, including:
(1) demand repayment of the loan and, subject to
Section 10.4(K), institute legal action against the
Participant to enforce collection of any balance due from
the Participant, or
(2) demand repayment of the loan, and charge the
total amount of the unpaid loan and unpaid interest
against the balance credited to the Participant's vested
account balance which was assigned as security for the
loan and reduce any payment or distribution from the Trust
Fund to which the Participant or the Participant's
Beneficiary may become entitled to the extent necessary to
discharge the obligation on the loan.
Notwithstanding the foregoing provisions of this Paragraph
(G), in the event of default, foreclosure on the note and
attachment of security will not occur until a distributable
event occurs in the Plan.
(H) In the event the Committee fails or refuses for any
reason to direct the Trustee as provided in Paragraph (G) above
or if the Trustee otherwise reasonably concludes that the
collectibility of a loan hereunder is in jeopardy, the Trustee
is authorized to take such action as it may reasonably
determine to enforce repayment and satisfaction of the loan.
The Employer shall be responsible for costs and expenses
incurred in collecting any loan balance.
(I) In the event that the amount of any payment or
distribution from the Trust Fund is insufficient to repay the
balance due on any loan, the Participant shall be liable for
and continue to make repayments on such balance.
(J) If a valid spousal consent has been obtained in
accordance with Paragraph (D), 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.
ARTICLE XII
FAILURE TO ATTAIN OR RETAIN QUALIFIED STATUS
12.1 FAILURE TO QUALIFY AS A PROTOTYPE. This Plan is
established with the intent that it shall qualify under Section 401
of the Code and that it shall comply with ERISA and all other
applicable laws, regulations and rulings. It may be modified and
amended retroactively, if necessary, to secure such qualification.
Should the Internal Revenue Service determine that this Plan does
not qualify under the Code or any statute of similar import, or
fails or refuses to issue an opinion, and if the Plan is not
amended, as required to qualify, before the time allowed by law for
the Employer to file its corporate federal tax return for the
taxable year in which the Effective Date occurs, the Plan shall be
considered to be rescinded and of no force and effect. Any assets
attributable to contributions made by the Employer shall be returned
to the Employer by the Trustee as soon as administratively feasible.
The Employer shall refund to the Participant any contributions made
by the Participant to the Plan.
12.2 FAILURE OF EMPLOYER TO ATTAIN OR RETAIN QUALIFICATION. If
the Employer's Plan fails to attain or retain qualification, such
Plan will no longer participate in this prototype Plan and will be
considered an individually designed Plan.
ARTICLE XIII
MISCELLANEOUS
13.1 EMPLOYER ACTION. Except as may be specifically provided
herein, any action required or permitted to be taken by the Employer
may be taken on behalf of the Employer by any officer of the
Employer.
13.2 NO GUARANTEE OF INTERESTS. Neither the Trustee, the
Employer nor any other named fiduciary in any way guarantees the
Trust Fund from loss or depreciation, nor do they guarantee any
payment to any person. The liability of the Trustee, the Employer
and a named fiduciary to make any payments hereunder is limited to
the available assets of the Trust Fund.
13.3 EMPLOYMENT RIGHTS. The Plan is not a contract of
employment. Participation in the Plan will not give any Participant
the right to be retained in the Employer's employ, nor any right or
claim to any benefit under the Plan, unless the right or claim has
specifically accrued under the Plan.
13.4 INTERPRETATIONS AND ADJUSTMENTS. To the extent permitted
by law, an interpretation of the Plan and a decision on any matter
within a named fiduciary's discretion made in good faith is binding
on all persons. A misstatement or other mistake of fact shall be
corrected when it becomes known and the person responsible shall
make such adjustment on account thereof as he or she considers
equitable and practicable.
13.5 UNIFORM RULES. In the administration of the Plan, uniform
rules will be applied to all Participants similarly situated.
13.6 EVIDENCE. Evidence required of anyone under the Plan may
be by certificate, affidavit, document or other information which
the person acting on it considers pertinent and reliable and signed,
made or presented by the proper party or parties.
13.7 WAIVER OF NOTICE. Any notice required under the Plan may
be waived by the person entitled to notice.
13.8 CONTROLLING LAW. The law of the state where the Trustee
is located shall be the controlling state law in all matters
relating to the Plan and shall apply to the extent that it is not
preempted by the laws of the United States of America.
13.9 TAX EXEMPTION OF TRUST. The trust herein created is
designated as constituting a part of a Plan intended to qualify
under Sections 401(a) of the Code and to be tax-exempt under Section
501(a) of the Code.
13.10 COUNTERPARTS. The Plan may be executed in two or
more counterparts, any one of which will be an original without
reference to the others.
13.11 ANNUAL STATEMENT OF ACCOUNT. The assets of the Trust
Fund will be valued annually at fair market as of the last day of
each Plan Year. On such date the earning and losses of the Trust
Fund will be allocated to each Participant's accounts in the ratio
that such account balance bears to all account balances. The
Trustee will deliver to the Employer a statement of each
Participant's account balances as of the last day of Plan Year.
13.12 NO DUTY TO INQUIRE. No person shall have any duty to
make any inquiry as to the application or use of the Trust Fund, or
any part thereof, or to inquire into the validity, expediency or
propriety of any matter or thing done or proposed to be done by the
Trustee.
13.13 INVALIDITY. In case any provisions of this Plan
shall be invalid, this fact shall not affect the validity of any
other provision.
13.14 TITLES. Titles to Articles and Sections are for
convenience only and shall have no bearing upon the construction or
interpretation of this Plan.
13.15 NO DUTY OF TRUSTEE TO COLLECT CONTRIBUTIONS. The
Trustee shall be accountable for all contributions received but
shall have no duty to require any contributions to be delivered or
to determine if the contributions received comply with the Plan or
with any Board of Directors resolution of the Employer providing for
contributions.
13.16 TRUSTEE DISTRIBUTES BY COMMITTEE DIRECTION. The
Trustee shall make distributions only through Committee direction.
The Trustee shall have no responsibility to see how distributions
are applied or to ascertain whether the Committee's directions
comply with the Plan. Notwithstanding anything in the Plan to the
contrary, payments made in accordance with these provisions will
continue only so long as amounts remain in the Participant's
accounts.
ARTICLE XIV
AMENDMENT OR TERMINATION
14.1 AMENDMENT BY THE SPONSOR. Society National Bank, the
sponsoring organization, reserves the right without being required
to obtain the approval of the Employer to amend any part of the Plan
from time to time, subject to the provisions of Article XII, Section
14.2 and the following:
(A) Except as provided in Section 14.1(B) and (C), no
amendment shall become effective until at least thirty (30)
days' prior written notice (unless the Employer agrees to
shorter notice) has been given to the Employer, nor shall any
such amendment reduce Participants' benefits to less than the
benefits to which they would have been entitled if they had
resigned from the employ of the Employer on the effective date
of the amendment;
(B) An amendment of the Plan and Trust which the sponsor
deems necessary to enable the Plan and Trust to meet the
requirements of Section 401(a) of the Code may be made
effective as of the date the Plan and Trust was established by
the sponsor or as of any subsequent date;
(C) An amendment of the Plan and Trust to conform the Plan
and Trust to any change in the law, regulations or rulings of
the United States may take effect as of the date such amendment
is required to be effective. Any amendment executed pursuant
to the provisions of this Section 14.1 shall be executed by an
authorized officer of the sponsor, or its successor. For
purposes of this Section 14.1, the Employer shall be deemed to
have been furnished a copy of any amendment on the business day
next following the mailing by the sponsor or the Trustee.
14.2 AMENDMENT BY ADOPTING EMPLOYER. The Employer may (1)
change the choice of options in the Adoption Agreement, (2) add
overriding language in the Adoption Agreement when such language is
necessary to satisfy Section 415 or Section 416 of the Code because
of the required aggregation of multiple plans, and (3) add certain
model amendments published by the Internal Revenue Service which
specifically provide that their adoption will not cause the Plan to
be treated as individually designed. An Employer that amends the
Plan for any other reason, including a waiver of the minimum funding
requirement under Section 412(d) of the Code, will no longer
participate in this Master or Prototype Plan and will be considered
to have an individually designed Plan.
14.3 VESTING PLAN TERMINATION. In the event of termination or
partial termination of the Plan, the account balance of each
affected Participant will be nonforfeitable.
14.4 VESTING COMPLETE DISCONTINUANCE OF CONTRIBUTIONS. In the
event of a complete discontinuance of contributions under the Plan,
the account balance of each affected Participant will be
nonforfeitable.
14.5 PLAN MERGER MAINTENANCE OF BENEFIT. In the event of a
merger or consolidation with, or transfer of assets to any other
Plan, each Participant will receive a benefit immediately after the
merger, consolidation or transfer (if the Plan then terminated)
which is at least equal to the benefit the Participant was entitled
to immediately before such merger, consolidation or transfer (if the
Plan had then terminated).
14.6 DIRECT TRANSFER. In its discretion, the Trustee may
accept the direct transfer of Plan assets from the trustee of other
retirement plans described in Code Section 401(a). If the Plan
receives a direct transfer of elective deferrals (or amounts treated
as elective deferrals) under a Plan with a Code Section 401(k)
arrangement, the distribution restrictions of Code Sections
401(k)(2) and (10) continue to apply to those transferred elective
deferrals.
14.7 TERMINATION OF PARTICIPATION BY EMPLOYER. The Employer
expects to continue its participation in this Plan indefinitely but
reserves the right to terminate this Plan as to its Employees at any
time by written instrument filed with the Trustee. In the event of
such termination, partial termination or complete discontinuance of
contributions, or termination as provided in Section 13.3, the
account balance of each affected Participant will be nonforfeitable.
Distribution to Participants who have theretofore become entitled to
the payment of any benefits hereunder or to Spouses or Beneficiaries
of deceased Participants shall be made in the same manner as if the
Employer's participation had not terminated or contributions had not
been discontinued.
The account(s) of each such Participant, in the event of
payment in other than a single sum, need not be converted into cash,
but may continue to remain in the trust, with a right and obligation
thereafter to participate in the net earnings, losses, taxes and
expenses of the trust.
If any Participant shall die after the termination of the
Employer's participation and before all of said Participant's
interest has been paid, then, upon the written direction of
Employer, the entire undistributed portion shall be paid in a single
sum to the Participant's Beneficiary.
In the event of complete discontinuance of contributions, the
Employer shall terminate this Plan as to its Employees and each
Participant's interest shall be distributed to such Participant.
14.8 NOTICE OF AMENDMENT, TERMINATION OR PARTIAL TERMINATION.
The Committee will notify affected Participants of an amendment,
termination or partial termination of the Plan within a reasonable
time.
14.9 SUBSTITUTION OF TRUSTEE. Any corporation or association
into which the Trustee may be converted, merged or with which it may
be consolidated, or any corporation or association resulting from
any conversion, merger, reorganization or consolidation to which the
Trustee may be a party, shall be the successor of the Trustee
hereunder without the execution or filing of any instrument or the
performance of any further act.
ARTICLE XV
DISCHARGE OF DUTIES BY FIDUCIARIES
15.1 DISCHARGE OF DUTIES. Subject to the provisions of
Articles IX and X, the Named Fiduciaries and any other fiduciary
shall discharge their respective duties set forth in the Plan solely
in the interest of the Participants and their Spouses and
Beneficiaries and:
(A) for the exclusive purpose of:
(1) providing benefits to Participants and their
Spouses and Beneficiaries; and
(2) defraying reasonable expenses of administering
the Plan;
(B) with the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent person acting in a
like capacity and familiar with such matters would use in the
conduct of an enterprise of a like character and with like
aims; and
(C) by diversifying the investments of the Plan so as to
minimize the risk of large losses, unless under the
circumstances it is clearly prudent not to do so.
ARTICLE XVI
AMENDMENT AND CONTINUATION OF ORIGINAL PLAN
16.1 AMENDMENT AND CONTINUATION. Notwithstanding any of the
foregoing provisions of the Plan to the contrary, an Employer which
has previously established a profit sharing Plan and trust or money
purchase pension Plan and trust, as applicable, (the "Original
Plan") may, in accordance with the provisions of the Original Plan,
amend and continue that Plan in the form of this Plan and Trust and
become an Employer hereunder, subject to the following:
(A) Subject to the conditions and limitations of the Plan,
each person who is a Participant or former Participant under
the Original Plan immediately prior to the Effective Date of
the amendment and continuation thereof in the form of this Plan
will continue as a Participant under this Plan;
(B) The words "Original Plan" shall be substituted for the
word "Plan" where the word appears in Section 2.2 of the Plan;
(C) No election may be made in the Adoption Agreement if
such election will reduce the benefits of a Participant under
the Original Plan to less than the benefits to which he would
have been entitled if he had resigned from the employ of the
Employer on the date of the amendment and continuation of the
Original Plan in the form of this Plan;
(D) The amounts, if any, credited to a Participant's or
former Participant's accounts, immediately prior to the
Effective Date of the amendment and continuation of the
Original Plan in the form of this Plan shall constitute the
opening balances in his or her accounts, as appropriate, under
this Plan and Trust;
(E) Amounts being paid to a former Participant or
Beneficiary in accordance with the provisions of the Original
Plan shall continue to be paid in accordance with such
provisions; and
(F) Any Beneficiary designation in effect under the
Original Plan immediately before its amendment and continuation
in the form of this Plan shall be deemed to be a valid
Beneficiary designation filed with the Employer under Section
7.7 of this Plan, to the extent consistent with the provisions
of this Plan, unless and until the Participant or former
Participant revokes such Beneficiary designation or makes a new
Beneficiary designation under this Plan.
IN WITNESS WHEREOF, Society National Bank has established this
prototype Plan as of the 24th day of March, 1995.
SOCIETY NATIONAL BANK
By:
Title: Senior Vice President and
General Counsel
<PAGE>
03/24/95 Basic Plan Document # 05
Plan # 002
IRS Letter Serial No.: D363689a
PRISM PROTOTYPE RETIREMENT PLAN & TRUST
Section 401(k) Profit Sharing Plan
(Nonstandardized)
Adoption Agreement(1)
The Employer (2), designated below, hereby establishes a profit-
sharing plan (optionally including a cash or deferred arrangement
(as defined in Section 401(k) of the Internal Revenue Code)) for all
Eligible Employees as defined in this Adoption Agreement pursuant to
the terms of the PRISM<reg-trade-mark> PROTOTYPE RETIREMENT PLAN &
TRUST BASIC PLAN DOCUMENT # 05.
A. EMPLOYER INFORMATION:
1. NAME: CTB, INC.
2. ADDRESS: P.O. BOX 2000
3. ADDRESS: MILFORD, IN 46542
4. ATTENTION: DON STEINHILBER TELEPHONE:219-658-4191
5. EMPLOYER TAXPAYER IDENTIFICATION NUMBER (3): 35-1970753
B. BASIC PLAN PROVISIONS:
1. PLAN NAME (SELECT ONE):
A. [ ] This plan is established effective __________
___ , 19__, (the "Effective Date") as a profit
sharing plan and trust (optionally with a "cash
or deferred arrangement" as defined in Code
Section 401(k)) to be known as Plan and
Trust (the "Plan") in the form of the
PRISM<reg-trade-mark> PROTOTYPE RETIREMENT PLAN
& TRUST.
B. [X] This plan is an amendment and restatement in the
form of the PRISM<reg-trade-mark> PROTOTYPE
RETIREMENT PLAN & TRUST, effective 01/01, 2000,
(the "Effective Date") of the CTB, INC. PROFIT
SHARING Plan and Trust (the "Plan"), originally
effective as of 11/01, 1979 (the "Original
Effective Date").
2. EMPLOYER'S THREE DIGIT PLAN NUMBER: 001
3. COMMITTEE MEMBERS (4):
4. DEFINITIONS:
A. COMPENSATION for allocation purposes:
I Will be determined over the following applicable
period (select only one):
(A) [ ] the Plan Year
(B) [X] the period of Plan participation
during the Plan Year
(C) [ ] a consecutive 12 month period
commencing on _____________ and ending
with, or within, the Plan Year.
II [X] If selected, Compensation will include
Employer contributions made pursuant to a
Salary Reduction Agreement, or other
arrangement, which are not includible in
the gross income of the Employee under
Sections 125, 402(e)(3), 402(h)(1)(B) or
403(b) of the Internal Revenue Code.
III Shall NOT include (select as many as desired):
(A) [X] Bonuses
(B) [ ] Commissions
(C) [X] Taxable fringe benefits identified
below:
BENEFITS PAID FROM GROUP OR WELFARE
BENEFIT PLANS, CONTRIBUTIONS TO
DEFERRED COMPENSATION PLANS, STOCK
OPTIONS
(d) [X] Other items of remuneration identified
below:
TERMINATION PAY
IV Shall be limited to $ , which shall be the
maximum amount of compensation considered for
plan allocation purposes (but not for testing
purposes), and may not be an amount in excess of
the Internal Revenue Code Section 401(a)(17)
limit in effect for the Plan Year (5). If no
amount is specified, Compensation shall be
limited to the Internal Revenue Code Section
401(a)(17) amount, as adjusted by the Secretary
of the Treasury from time to time.
B. EARLY RETIREMENT DATE:
I [ ] is not applicable to this Plan
II [X] is the latter of the date on which the
Participant attains age 60 (not less than
55) and the date on which the Participant
completes _____ Years of Service.
C. HOUR OF SERVICE shall be determined on the basis of
the method selected below. Only one method may be
selected. The method shall be applied to all
Employees covered under the Plan as follows (select
only one):
I [X] On the basis of actual hours for which an
Employee is paid, or entitled to be paid.
II [ ] On the basis of days worked. An Employee
shall be credited with ten (10) Hours of
Service if under Section 1.1(U) of the Plan
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 Section 1.1(U) of
the Plan 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. An Employee shall be credited
with ninety-five (95) Hours of Service if
under Section 1.1(U) of the Plan 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 Section
1.1(U) of the Plan such Employee would be
credited with at least one (1) Hour of
Service during the month.
D. LIMITATION YEAR shall mean the 12 month period
commencing on JANUARY 1 and ending on DECEMBER 31.
E. NORMAL RETIREMENT DATE for each Participant shall
mean (select one):
I [X] the date the Participant attains age: 65
(not to exceed 65)
II [ ] the latter of the date the Participant
attains age (not to exceed 65) or the
(not to exceed 5th) anniversary of the
participation commencement date. If for
the Plan Years beginning before January 1,
1988, Normal Retirement Date was determined
with reference to the anniversary of the
participation commencement date (more than
5 but not to exceed 10 years), the
anniversary date for Participants who first
commenced participation under the Plan
before the first Plan Year beginning on or
after January 1, 1988 shall be the earlier
of (A) the tenth anniversary of the date
the Participant commenced participation in
the Plan (or such anniversary as had been
elected by the employer, if less than 10)
or (B) the fifth anniversary of the first
day of the first Plan Year beginning on or
after January 1, 1988. Notwithstanding any
other provisions of the Plan, the
participant commencement date is the first
day of the first Plan Year in which the
Participant commenced participation in the
Plan.
F. PERMITTED DISPARITY LEVEL, for purposes of allocating
Employer Contributions, shall mean (select only one):
I [X] Not applicable - the Plan does not use
permitted disparity.
II [ ] The Taxable Wage Base, which is the
contribution and benefit base under section
230 of the Social Security Act at the
beginning of the year.
III [ ] % (not greater than 100%) of the
Taxable Wage Base as defined in B(4)(f)(ii)
above.
IV [ ] $ , provided that the amount does not
exceed the Taxable Wage Base as defined in
B(4)(f)(ii) above.
G. PLAN YEAR shall mean (select and complete only one of
the following):
I [ ] the 12-consecutive month period which
coincides with the Limitation Year. The
first Plan Year shall be the period
commencing on the Effective Date and ending
on the last day of the Limitation Year.
II [ ] the 12-consecutive month period commencing
on , 19 , and each annual anniversary
thereof.
III [X] the calendar year (January 1 through
December 31).
H. QUALIFIED DISTRIBUTION DATE, for purposes of making
distributions under the provisions of a Qualified
Domestic Relations Order (as defined in Internal
Revenue Code Section 414(p)), [X] SHALL [ ] SHALL NOT
be the date the order is determined to be qualified.
If SHALL is selected, the Alternate Payee will be
entitled to an immediate distribution of benefits as
directed by the Qualified Domestic Relations Order.
If SHALL NOT is selected, the Alternate Payee may
only take a distribution on the earliest date that
the Participant is entitled to a distribution.
I. SPOUSE:
[ ] If selected, Spouse shall mean only that person
who has actually been the Participant's spouse
for at least one year.
J. YEAR OF SERVICE shall mean:
I For ELIGIBILITY purposes (select one of the
following): N/A
(A) [ ] the 12 consecutive months during which
an Employee is credited with
(not more than 1000) Hours of Service.
(B) [ ] a Period of Service (using the elapsed
time method of counting Service, as
described in Section 1.1(N)(3) of the
Plan).
II For ALLOCATION accrual purposes (select one of
the following):
(A) [X] the 12 consecutive months during which
an Employee is credited with 1000
(not more than 1000) Hours of Service.
(B) [ ] a Period of Service (using the elapsed
time method of counting Service, as
described in Section 1.1(N)(3) of the
Plan).
III For VESTING service purposes (select one of the
following):
(A) [ ] the 12 consecutive months during which
an Employee is credited with
(not more than 1000) Hours of Service.
(B) [X] a Period of Service (using the elapsed
time method of counting Service, as
described in Section 1.1(N)(3) of the
Plan).
IV For purpose of computing Years of Service in
plans where Year of Service is defined in terms
of Hours of Service), the consecutive 12 month
period shall be:
(A) For ELIGIBILITY purposes, the first Year of
Service shall be computed using the 12
month period commencing on the Employee's
date of hire and ending on the first annual
anniversary of the Employee's date of hire
(the "Initial Computation Period"). In the
event an employee does not complete an
eligibility Year of Service during this
initial computation period, the computation
period shall be (select only one):
(1) [ ] the period commencing on each
annual anniversary of the
Employee's date of hire and
ending on the next annual
anniversary of the Employee's
date of hire.
(2) [ ] the Plan Year, commencing with
the Plan Year in which the
Initial Computation Period ends.
(B) For VESTING purposes, Years of Service
shall be computed on the basis of:
(1) [ ] the period commencing on each
annual anniversary of the
Employee's date of hire and
ending on the next annual
anniversary of the Employee's
date of hire.
(2) [ ] the Plan Year, commencing with
the first Plan Year an Employee
completes an Hour of Service.
(C) For ALLOCATION accrual purposes, Year of
Service shall be computed on the basis of
the Plan Year.
V [ ] For ELIGIBILITY purposes, Years of Service
with the following Predecessor Employers
shall count in fulfilling the eligibility
requirements for this Plan:
_______________________
vi [X] For VESTING purposes, Years of Service with
the following Predecessor Employers shall
count for purposes of determining the
nonforfeitable amount of a Participant's
account: Staco, Inc., and Sibley
Industries, Inc.
5. COVERAGE:
This Plan is extended by the Employer to the following
Employees who have met the eligibility requirements
(select as many as appropriate):
I [ ] All Employees
II [ ] Salaried Employees
III [ ] Sales Employees
IV [ ] Hourly Employees
V [ ] Leased Employees
VI [ ] All Employees except (select
as applicable):
(A) [ ] those who are members of a unit of
Employees covered by a collective
bargaining agreement between the
Employer and Employee representatives,
if retirement benefits were the
subject of good faith bargaining and
if two percent or less of the
Employees who are covered pursuant to
that agreement are professionals as
defined in Section 1.410(b)-9 of the
Regulations. For this purpose, the
term "Employee representative" does
not include any organization more than
half of whose members are Employees
who are owners, officers, or
executives of the Employer.
(B) [ ] those who are nonresident aliens
(within the meaning of Internal
Revenue Code Section 7701(b)(1)(B))
and who receive no earned income
(within the meaning of Internal
Revenue Code Section 911(d)(2)) from
the Employer which constitutes income
from sources within the United States
(within the meaning of Internal
Revenue Code Section 861(a)(3)).
VII [ ] Union Employees (who are members of the
following unions or union affiliates:
___________________
VIII [X] Other Employees, described as follows:
All Employees except: Leased Employees; 5%
owners receiving minimum Distributions;
Employees subject to collective bargaining
in vi(a) above; Independent Contractors;
Temporary employees working less than 1000
hours, and Non Resident Aliens who receive
no earned U.S. income.
6. ELIGIBILITY:
An Employee covered by the Plan may become a Participant
upon completion of the following eligibility requirements:
A. SERVICE (6):
I [X] There shall be no minimum service
requirement for an Employee to become a
Participant.
II [ ] The Employee must complete ___ of Service
(not more than 2 years) to be a Participant
for purposes of receiving allocations of
Employer Profit Sharing Contributions.
B. AGE:
I [ ] There shall be no minimum age requirement
for an Employee to become a Participant.
II [X] The Employee must attain age 18 (not more
than 21) to be a Participant in the Plan.
C. WAIVER OF AGE AND SERVICE REQUIREMENTS:
i [ ] Notwithstanding the provisions of Items
B(6)(a) and (b), Employees who have not
satisfied the age and service requirements,
but would otherwise be eligible to
participate in the plan, shall be eligible
to participate on the Effective Date.
II [ ] For new Plans, notwithstanding the
provisions of Items B(6)(a) and (b),
Employees who have not satisfied the age
and service requirements, but would
otherwise be eligible to participate in the
plan, shall be eligible to participate on
the Effective Date.
D. ENTRY DATES:
Upon completion of the eligibility requirements, an
Employee shall commence participation in the Plan
(select only one):
I [X] As soon as practicable under the payroll
practices utilized by the Employer, and
consistently applied to all Employees, or
if earlier, the first day of the Plan Year
(7).
II [ ] As of the first day of the month following
the completion of the eligibility
requirements.
III [ ] As of the earliest of the first day of the
Plan Year, fourth, seventh or tenth month
of the Plan Year next following completion
of the eligibility requirements.
IV [ ] As of the earliest of the first day of the
Plan Year or seventh month of the Plan Year
next following completion of the
eligibility requirements.
V [ ] As of the first day of the Plan Year next
following completion of the eligibility
requirements (may only be selected if the
eligibility year of service requirement is
6 months or less).
7. VESTING:
A. The percentage of a Participant's Employer
Contribution Account (attributable to Employer Profit
Sharing Contributions) to be vested in him or her
upon termination of employment prior to attainment of
the Plan's Normal Retirement Date shall be (8):
COMPLETED YEARS OF SERVICE
1 2 3 4 5 6 7
I [ ] _____ 100%
II [ ] _____ _____ 100%
III [ ] _____ 20% 40% 60% 80% 100%
IV [X] 0% 0% 20% 40% 60% 80% 100%
V [ ] 10% 20% 30% 40% 60% 80% 100%
VI [ ] _____ _____ _____ _____ 100%
VII [ ] _____ _____ _____ _____ _____ _____ 100%
VII [ ] Full and immediate vesting upon entry
into the Plan (9)
Notwithstanding anything to the contrary in the
Plan, the amount inserted in the blanks above
shall not exceed the limits specified in Code
Section 411(a)(2).
B. For purposes of computing a Participant's vested
account balance, Years of Service for vesting
purposes [X] SHALL [ ] SHALL NOT include Years of
Service before the Employer maintained this Plan or
any predecessor plan, and [ ] SHALL [X] SHALL NOT
include Years of Service before the Employee attained
age 18.
C. Notwithstanding the provisions of this Item B(7)(c)
of the Adoption Agreement, a Participant shall become
fully vested in his Participant's Employer
Contribution if:(10)
I [ ] the Participant's job is eliminated without
the Participant being offered a comparable
position elsewhere with the Employer.
II [ ] for such reason as is described below:
______________
8. EMPLOYER PROFIT SHARING CONTRIBUTIONS:
A. CONTRIBUTIONS:
I [X] In its discretion, the Employer may
contribute Employer Profit Sharing
Contributions to the Plan.
II [ ] The Employer shall contribute Employer
Profit Sharing Contributions to the Plan in
the amount of ____% of the Compensation of
all Eligible Participants under the Plan.
III [X] If selected, the Employer may make Employer
Profit Sharing Contributions without regard
to current or accumulated Net Profits of
the Employer for the taxable year ending
with, or within the Plan Year.
IV [ ] If selected, the Employer may designate all
or any part of the Employer Profit Sharing
Contributions as Qualified Nonelective
Contributions, provided, however, that
contributions so designated will be subject
to the same vesting, distribution, and
withdrawal restrictions as Before Tax
Contributions (11).
B. ALLOCATIONS:
Employer Profit Sharing Contributions shall be
allocated to the accounts of eligible Participants
according to the following selected allocation
formula:
I [X] The Employer Profit Sharing Contributions
shall be allocated to each eligible
Participant's account in the ratio which
the Participant's Compensation bears to the
Compensation of all eligible Participants.
Employer Profit Sharing Plan Contributions,
shall be allocated to the accounts of
Participants who have completed a Year of
Service (12) (select one):
(A) [ ] as of the last day of the month
preceding the month in which the
contribution was made.
(B) [ ] as of the last day of the Plan quarter
preceding the quarter in which the
contribution was made.
(C) [X] as of the last day of the Plan Year.
II [ ] The Employer Profit Sharing Contributions
shall be allocated in accordance with the
following formula:
(A) If the Plan is Top-Heavy, the contribution
shall be first credited to each eligible
Participant's Account in the ratio which
the Participant's Compensation bears to the
total Compensation of all eligible
Participants, up to 3% of each
Participant's Compensation.
(B) If the Plan is Top-Heavy, any Employer
Profit Sharing Contribution remaining after
the allocation in (a) above shall be
credited to each eligible Participant's
account in the ratio which the
Participant's Excess Compensation (13)
bears to the total Excess Compensation of
all eligible Participants, up to 3% of each
eligible Participant's Excess Compensation.
(C) Any contributions remaining after the
allocation in (b) above shall be credited
to each eligible Participant's account in
the ratio which the sum of the
Participant's total Compensation and Excess
Compensation bears to the sum of the total
Compensation and Excess Compensation of all
eligible Participants, up to an amount
equal to the maximum Excess Percentage
times the sum of the Participant's
Compensation and Excess Compensation. If
the Plan is Top-Heavy, the maximum Excess
Percentage is [___] % (insert percentage).
If the Plan is not Top-Heavy, the maximum
Excess Percentage is ____% (insert
percentage, which shall not exceed the
prior Excess Percentage limitation
specified by more than 3).
NOTE: If the Permitted Disparity Level defined at
Item B(4)(f) is the Taxable Wage Base
(which is the contribution and benefit base
under section 230 of the Social Security
Act at the beginning of the year), then the
maximum Excess Percentage should be 2.7% if
the Plan is Top-Heavy and 5.7% if the Plan
is not Top-Heavy.
If the Permitted Disparity Level defined at
Item B(4)(f) is greater than 80% but less
than 100% of the Taxable Wage Base, then
the maximum Excess Percentage should be
2.4% if the Plan is Top-Heavy and 5.4% if
the Plan is not Top-Heavy.
If the Permitted Disparity Level defined at
Item B(4)(f) is greater than the greater of
$10,000 or 20% of the Taxable Wage Base,
but not more than 80%, then the maximum
Excess Percentage should be 1.3% if the
Plan is Top-Heavy and 4.3% if the Plan is
not Top-Heavy.
(D) Any remaining Employer Profit Sharing
Contribution shall be allocated among
eligible Participants' accounts in the
ratio which the Participant's Compensation
bears to the total Compensation of all
Participants.
III [X] If selected, and the Employer has elected
to allocate Employer Profit Sharing Plan
Contributions as of the last day of the
Plan Year, a Participant must be employed
by the Employer on the last day of the Plan
Year in order to receive an allocation
(14).
IV [ ] A Participant who terminates before the end
of the period for which contributions are
allocated shall share in the allocation of
Employer Profit Sharing Contributions if
termination of employment was the result of
(select all that apply):
(A) [ ] retirement
(B) [ ] disability
(C) [ ] death
(D) [ ] other, as specified below:
____________________
9. ROLLOVER & TRANSFER CONTRIBUTIONS (SELECT ONE):
A. [ ] Subject to policies, applied in a consistent and
nondiscriminatory manner, adopted by the
Committee, each Employee, who would otherwise be
eligible to participate in the Plan except that
such Employee has not yet met the eligibility
requirements, and each Participant may make a
Rollover Contribution as described in Internal
Revenue Code Sections 402(a)(5), 403(a)(4) or
408(d)(3).
B. [X] Subject to policies, applied in a consistent and
nondiscriminatory manner, adopted by the
Committee, each Participant may make a Rollover
Contribution as described in Internal Revenue
Code Sections 402(a)(5), 403(a)(4) or 408(d)(3).
C. [ ] No Employee shall make Rollover Contributions to
the Plan.
10. DISTRIBUTIONS:
a. DISTRIBUTIONS UPON SEPARATION FROM SERVICE:
The Normal Form of Benefit under the Plan shall be a
single lump sum distribution, made [X] (if selected)
as soon as administratively practical after receipt
of a distribution request from a Participant entitled
to a distribution or [ ] (if selected) upon the
Participant's attainment of the Plan's Early
Retirement Date or the Plan's Normal Retirement Date,
whichever is earlier.
In addition to the Normal Form of Benefit, the
Participant shall be entitled to select from among
the following optional forms of benefit specified by
the employer (select as many as apply):
I [X] Installment payments
PARTICIPANTS MAY RECEIVE THEIR BENEFIT IN
ROUGHLY EQUAL MONTLY, QUARTERLY OR ANNUAL
INSTALLMENTS PAYABLE OVER A PERIOD NOT TO
EXCEED THE PARTICIPANT'S LIFE EXPECTANCY OR
THE JOINT LIFE EXPECTANCIES OF THE
PARTICIPANT AND HIS OR HER DESIGNATED
BENEFICIARY.
ii [X] Such other forms as may be specified below:
PARTICIPANTS MAY RECEIVE A DISTRIBUTION OF
EMPLOYER STOCK IN-KIND.
B. IN-SERVICE DISTRIBUTIONS (SELECT AS MAY BE
APPROPRIATE):
I [X] There shall be no in-service distribution
of Participant account balances derived
from Employer Profit Sharing Contributions.
II [ ] Participants may request an in-service
distribution of their account balance
attributable to Employer Profit Sharing
Contributions, for the following reasons:
(A) [ ] For purposes of satisfying a
financial hardship, as determined
in accordance with the uniform
nondiscriminatory policy of the
Committee;
(B) [ ] Attainment of age 59 1/2 by the
Participant; or
(C) [ ] Attainment of the Plan's Normal
Retirement Date by the
Participant.
11. FORFEITURES:
A. Forfeitures of amounts attributable to Employer
Profit Sharing Contributions shall be reallocated as
of:
I [ ] the last day of the Plan Year in which the
Forfeiture occurred.
II [X] the last day of the Plan Year following the
Plan Year in which the Forfeiture occurred.
III [ ] the last day of the Plan Year in which the
Participant suffering the Forfeiture has
incurred five consecutive One Year Breaks
in Service.
B. Forfeitures of Employer Profit Sharing Contributions
shall be reallocated as follows:
I [ ] Not applicable as Employer Profit Sharing
Contributions are always 100% vested and
nonforfeitable.
II [ ] Used first to pay the expenses of
administering the Plan, and then allocated
pursuant to one of the following two
options (15):
III [X] Forfeitures shall be allocated to
Participant's accounts in the same manner
as Employer Profit Sharing Contributions,
Employer Matching Contributions, Qualified
Nonelective Contributions or Qualified
Matching Contributions, in the discretion
of the Employer, for the year in which the
Forfeiture arose.
IV [ ] Forfeitures shall be applied to reduce the
Employer Profit Sharing Contributions,
Employer Matching Contributions, Qualified
Nonelective Contributions or Qualified
Matching Contributions, in the discretion
of the Employer, for the Plan Year
following the Plan Year in which the
Forfeiture arose.
12. LIMITATIONS ON ALLOCATIONS:
If the Employer maintains or ever maintained another
qualified retirement plan in which any Participant in this
Plan is (or was) a participant, or could possibly become a
participant, the Employer must complete the following:
A. If the Participant is covered under another qualified
defined contribution plan maintained by the Employer
other than a Master or Prototype Plan:
I [ ] The provisions of this Plan shall apply as
if the other plan were a Master or
Prototype plan; or,
II [ ] The following provisions will be effective
to limit the total Annual Additions to the
Maximum Permissible Amount, and will
properly reduce any Excess Amounts, in a
manner that precludes Employer discretion:
B. If the Participant is or ever has been a participant
in a qualified defined benefit plan maintained by the
Employer, the following provisions will be effective
to satisfy the 1.0 limitation of Internal Revenue
Code Section 415(e), in a manner that precludes
Employer discretion:
13. INTERNAL REVENUE CODE SECTION 411(D)(6) PROTECTED
BENEFITS:
[ ] If selected, the Plan has Internal Revenue Code
Section 411(d)(6) Protected Benefits from a prior
plan that this Plan amends, that must be protected.
14. TOP-HEAVY PLAN PROVISIONS:
For each Plan Year in which the Plan is a Top-Heavy Plan
the following provisions will apply:
A. The percentage of a Participant's Employer
Contribution Account to be vested in him upon
termination of employment prior to retirement shall
be:
I [X] a percentage determined in accordance with
the following schedule:
YEARS OF SERVICE PERCENTAGE
Less than two 0
Two but less
than three 20
Three but less
than four 40
Four but less
than five 60
Five but less
than six 80
Six or more 100;
II [ ] 100% vesting after (not to exceed 3)
Years of Service; provided, however, that
Years of Service may not exceed two (2) if
the service requirement for eligibility
exceeds 1 year; or
III [ ] computed in accordance with the vesting
schedule selected by the Employer in Items
B(7)(a) or C(4)(d), as long as the benefits
under the vesting schedule in Items B(7)(a)
or C(4)(d) vest at least as rapidly as the
two options specified in this Item
B(14)(a), above.
If the vesting schedule under the Plan shifts in or
out of the schedules above for any Plan Year because
of the Plan's Top-Heavy status, such shift is an
amendment to the vesting schedule and the election in
Section 2.2 of the Basic Plan Document applies.
B. For purposes of minimum Top-Heavy allocations,
contributions and forfeitures equal to ____% (not
less than 3%) of each Non-key Employee's Compensation
will be allocated to each Participant's Contribution
Account when the Plan is a Top-Heavy Plan, except as
otherwise provided in the Basic Plan Document. This
Item 14 will not apply to any Participant to the
extent the Participant is covered under any other
plan or plans of the Employer and the Employer
completes the following: (Insert the name of the
plan or plans which will meet the minimum allocation
or benefit requirement applicable to Top-Heavy
plans.)
C. The Valuation Date as of which account balances or
accrued benefits are valued for purposes of computing
the Top-Heavy Ratio shall be the last day of each
Plan Year.
D. If the Employer maintains or has ever maintained one
or more defined benefit plans which have covered or
could cover a Participant in this Plan, complete the
following:
Present Value: For purposes of establishing Present
Value to compute the Top-Heavy Ratio, any benefit
shall be discounted only for mortality and interest
based on the following:
Interest rate ____% Mortality table
15. INVESTMENTS:
A. Investments made pursuant to the investment direction
provisions of the Basic Plan Document shall be made
into any appropriate Investment Fund as selected by
the Employer. In addition, investment of Plan assets
is expressly authorized, as required by Revenue
Ruling 81-100, in each of the following common or
collective funds sponsored by the Trustee, or an
affiliate of the Trustee (16):
KEY TRUST COMPANY EB MANAGED GUARANTEED
INVESTMENT CONTRACT FUND, THE KEY TRUST COMPANY
MULTIPLE INVESTMENT TRUST FOR EMPLOYEE BENEFIT
TRUSTS, AND OTHER COLLECTIVE TRUSTS EXEMPT FROM
TAX UNDER IRC SECTION 501 AND AS DESCRIBED IN
REV. RUL. 81-100. _
B. [X] If selected, an Employer Stock Fund shall be
available as an Investment Fund pursuant to the
terms of the Basic Plan Document.
[X] If selected, and an Employer Stock Fund is
available as an Investment Fund,
Participants will have the right,
notwithstanding any other provisions of the
Plan, to direct that a portion of the Plan
assets held for their benefit and invested
in the Employer Stock Fund be diversified
pursuant to the provisions of Section
10.7(F) of the Basic Plan Document.
C. Participants may make changes of existing account
balances and future contributions from among the
Investment Funds offered:
I [X] Once during each business day that the
Trustee and the New York Stock Exchange are
open.
II [ ] Once during each calendar month.
III [ ] Once during each quarter of the Plan Year.
IV [ ] Once during each rolling day period.
D. [ ] If selected, the Participant shall be restricted
in making changes of existing account balances
from any Investment Fund, as specified in the
terms or conditions of such Investment Fund, and
the Employer shall attach an addendum specifying
such restriction.
E. The Participant will designate into which Investment
Funds all contributions to their accounts are made,
EXCEPT the following:
I [ ] Employer Profit Sharing Contributions
II [ ] Employer Mandatory Matching Contributions
III [ ] Employer Discretionary Matching
Contributions
IV [ ] Qualified Matching Contributions
V [ ] Qualified Nonelective Contributions
F. [ ] If selected, and to the extent a selection is
made above, the Employer shall attach an
Investment Direction Addendum specifying how the
contributions so specified shall be invested
among the Investment Fund.
G. [ ] If selected, the Participant shall be restricted
in the use of the Employer Stock Fund as an
Investment Fund for designating the investment
of contributions in the Participant's account,
as follows:
I [ ] The Participant may not direct the
investment of Plan assets held in their
account into the Employer Stock Fund.
II [ ] The Participant may direct ____% of the
following contributions into the Employer
Stock Fund:
(A) [ ] Employer Profit Sharing Contributions
(B) [ ] Employer Mandatory Matching
Contributions
(C) [ ] Employer Discretionary Matching
Contributions
(D) [ ] Qualified Matching Contributions
(E) [ ] Qualified Nonelective Contributions
III [ ] ____% of the following contributions will
be invested into the Employer Stock Fund,
with the balance invested among:
(A) [ ] the other Investment Funds, including
the Employer Stock Fund
(B) [ ] the other Investment Funds, NOT
including the Employer Stock Fund
16. LOANS (SELECT ONE):
A. [ ] Loans may be made from the Plan in accordance
with the Basic Plan Document and such policies
and procedures as the Committee may adopt and
apply on a consistent and nondiscriminatory
basis (17).
B. [X] No loans shall be made from the Plan.
17. TRUSTEE:
The Trustee of this Plan shall be KEY TRUST COMPANY OF
INDIANA, NA (a bank or trust company affiliated with
KeyCorp within the meaning of Internal Revenue Code
Section 1504).
18. EFFECTIVE DATE ADDENDUM:
[X] If selected, the following provisions shall have the
specified effective dates (which are different from
the date specified in Item B(1)):
An Employee who has, pursuant to the terms of the
Plan effective prior to January 1, 2000, elected to
not participate in the Plan, may continue to waive
his or her participation in the Plan after January 1,
2000. No Employee who becomes eligible to
participate in the Plan after January 1, 2000 may
waive participation in the Plan.
C. SECTION 401(K) PLAN PROVISIONS:
1. Service:
An Eligible Employee shall be required to fulfill the
following eligibility service requirements in order to
participate in the Plan through a salary reduction
agreement and for purposes of receiving an allocation of
Employer Matching Contributions:
A. [X] The Employee must complete 1 Day of Service (not
more than 1 year) to be a Participant for
purposes of receiving allocations of Employer
Matching Contributions.
B. [X] The Employee must complete 0 DAY of Service (not
more than 1 year) to be a Participant for
purposes of entering into a Salary Reduction
Agreement and having Employee Before Tax
Contributions or Employee After Tax
Contributions contributed to the Plan on the
Employee's behalf.
2. EMPLOYEE SALARY DEFERRALS:
A. [X] Participants shall be entitled to enter into a
Salary Reduction Agreement providing for Before
Tax Contributions to be made to the Plan.
I The minimum Before Tax Contribution shall be 1 %
of the Participant's Compensation.
II The maximum Before Tax Contribution shall be 16
% of the Participant's Compensation.
B. [ ] Participants shall be entitled to enter into a
Salary Reduction Agreement providing for After
Tax Contributions to be made to the Plan.
I The minimum After Tax Contribution shall be
____% of the Participant's Compensation.
II The maximum After Tax Contribution shall be
____% of the Participant's Compensation.
III [ ] If selected, notwithstanding the above, a
Participant shall not be able to enter into
a Salary Reduction Agreement providing for
After Tax Contributions to be made to the
Plan unless the Participant has entered
into a Salary Reduction Agreement that
provides for Before Tax Contributions to be
made to the Plan in an amount of at least
____% of the Participant's Compensation.
C. [X] If selected, a Participant shall be entitled to
enter into a Salary Reduction Agreement
providing that any extraordinary item of
compensation, not yet payable (including
bonuses), be withheld from the Participant's
Compensation and contributed to the Plan as
either a Before Tax Contribution, or After Tax
Contribution (provided such contributions are
authorized above, and to the extent that such
contribution, when aggregated with either the
Participants other Before Tax Contributions or
After Tax Contributions do not exceed the
limitations specified above, on an annual
basis).
3. CONTRIBUTION CHANGES:
A. Participants may increase or decrease the amount of
contributions made to the Plan pursuant to a Salary
Reduction Agreement once each:
I [ ] Plan Year
II [ ] Semi-annual period, based on the Plan Year
III [ ] Quarter, based on the Plan Year
IV [ ] Month
V [X] Other, as specified below (provided that it
is at least once per year):
PAY PERIOD PRIOR TO PAY PERIOD INTENDED TO
BE CHANGED
B. Claims for returns of Excess Before Tax Contributions
for the Participant's preceding taxable year must be
made in writing, and submitted to the Committee by
MARCH1 (specify a date between March 1 and April 15).
(18)
4. EMPLOYER MATCHING CONTRIBUTIONS (19):
A. MANDATORY MATCHING CONTRIBUTIONS:
The Employer shall make contributions to the Plan, in
an amount as specified below:
I [ ] An amount, equal to ____% of each
Participant's Before Tax Contributions,
however, no match shall be made on
Participant's Before Tax Contributions in
excess of ____% (or $____) of the
Participant's Compensation.
II [ ] An amount, equal to ____% of each
Participant's After Tax Contributions, but
not to exceed ____% of the Participant's
Compensation, or $ ____ .
III [ ] An amount, equal to ____% of each
Participant's contributions made pursuant
to a Salary Reduction Agreement (including
both Before Tax Contributions and After Tax
Contributions), but only if the Participant
has entered into a Salary Reduction
Agreement providing for Before Tax
Contributions of at least ____% of the
Participant's Compensation, but not to
exceed ____% of the Participant's
Compensation, or $____
IV [ ] An amount equal to the sum of the
following:
(A) ____% of the first ____% of the
Participant's Compensation
deferred pursuant to a Salary
Reduction Agreement; plus,
(B) ____% of the next ____% of the
Participant's Compensation
deferred pursuant to a Salary
Reduction Agreement; plus,
(C) ____% of the next ____% of the
Participant's Compensation
deferred pursuant to a Salary
Reduction Agreement, but not to
exceed ____% of the Participant's
Compensation, or $____
V [ ] An amount equal to $____ each Participant
who enters into a Salary Reduction
Agreement providing [ ] for Before Tax
Contributions, [ ] After Tax Contributions,
or [ ] either Before Tax Contributions or
After Tax Contributions (or a combination
of both) equal to or exceeding ____% of the
Participant's Compensation. Such
contributions shall be made and allocated:
(A) [ ] only during the first Plan Year the
Plan is in effect, or if a
restatement, for the first Plan Year
beginning with, or containing the
restatement Effective Date.
(B) [ ] each Plan Year that a Participant has
in force a Salary Reduction Agreement
meeting the criteria specified above.
(C) [ ] during the first Plan Year that the
Participant participates through a
Salary Reduction Agreement meeting the
criteria specified above.
B. DISCRETIONARY MATCHING CONTRIBUTIONS:
[X] The Employer shall make contributions to the
Plan, in an amount determined by resolution of
the Board of Directors on an annual basis. The
Board resolution shall provide for the
percentage and/or amount of Before Tax
Contributions and/or After Tax Contributions to
be matched and the maximum percentage and/or
amount of Before Tax Contributions and/or After
Tax Contributions eligible for matching.
C. ALLOCATION OF MATCHING CONTRIBUTIONS:
Employer Matching Contributions shall be allocated
pursuant to the terms of the Basic Plan Document,
notwithstanding the foregoing:
I [ ] A Participant who terminates before the end
of the period for which contributions are
allocated shall share in the allocation of
Employer Matching Contributions if
termination of employment was the result of
(select all that apply):
(A) [ ] retirement
(B) [ ] disability
(C) [ ] death
(D) [ ] other, as specified below:
II [X] Employer Matching Contributions shall be
allocated to the accounts of Participants
(select one):
(A) [ ] as of each pay period for which a
contribution was made pursuant to a
Salary Reduction Agreement.
(B) [ ] semi-monthly.
(C) [ ] as of the last day of the month
preceding the month in which the
contribution was made.
(D) [ ] as of the last day of the Plan quarter
preceding the quarter in which the
contribution was made.
(E) [X] as of the last day of the Plan year.
iii [X] If selected, the Employer may make Employer
Matching Contributions without regard to
current or accumulated Net Profits of the
Employer for the taxable year ending with,
or within the Plan Year (20).
D. The percentage of a Participant's Employer Matching
Contribution Account (21) (attributable to Employer
Matching Contributions) to be vested in him or her
upon termination of employment prior to attainment of
the Plan's Normal Retirement Date shall be (22):
COMPLETED YEARS OF SERVICE
1 2 3 4 5 6 7
I [ ] _____ 100%
II [ ] _____ _____ 100%
III [ ] _____ 20% 40% 60% 80% 100%
IV [X] 0% 0% 20% 40% 60% 80% 100%
V [ ] 10% 20% 30% 40% 60% 80% 100%
VI [ ] _____ _____ _____ _____ 100%
VII [ ] _____ _____ _____ _____ _____ _____ 100%
VII [ ] Full and immediate vesting upon entry
into the Plan
Notwithstanding anything to the contrary in the
Plan, the amount inserted in the blanks above
shall not exceed the limits specified in Code
Section 411(a)(2).
E. Notwithstanding the provisions of this Item C(4)(e)
of the Adoption Agreement, a Participant shall become
fully vested in his Participant's Employer Matching
Contribution Account if (23):
I [ ] the Participant's job is eliminated without
the Participant being offered a comparable
position elsewhere with the Employer.
II [ ] for such reason as is described below:
__________________
F. CORRECTIVE CONTRIBUTIONS:
I [X] If selected, the Employer shall be
authorized to make Qualified Matching
Contributions, subject to the terms of the
Basic Plan Document, in an amount
determined by resolution of the Board of
Directors on an annual basis.
II [X] If selected, the Employer shall be
authorized to make Qualified Nonelective
Contributions, subject to the terms of the
Basic Plan Document, in an amount
determined by resolution of the Board of
Directors on an annual basis.
5. GAP EARNINGS:
[ ] If selected, Gap Earnings, as defined in Section
3.2(G)(1) of the Basic Plan Document, will be
calculated for Excess Elective Deferrals, Excess
Contributions and Excess Aggregate Contributions, and
refunded to the Participant as provided for in
Article III of the Basic Plan Document.
6. FORFEITURES:
A. Forfeitures of amounts attributable to Employer
Matching Contributions shall be reallocated as of:
I [ ] the last day of the Plan Year in which the
Forfeiture occurred.
II [X] the last day of the Plan Year following the
Plan Year in which the Forfeiture occurred.
III [ ] the last day of the Plan Year in which the
Participant suffering the Forfeiture has
incurred the fifth consecutive One Year
Break in Service.
B. Forfeitures of Employer Matching Contributions shall
be reallocated as follows:
I [ ] Not applicable as Employer Matching
Contributions are always 100% vested and
nonforfeitable.
II [ ] Used first to pay the expenses of
administering the Plan, and then allocated
pursuant to one of the following two
options:
III [X] Forfeitures shall be allocated to
Participant's accounts in the same manner
as Employer Profit Sharing Contributions,
Employer Matching Contributions, Qualified
Nonelective Contributions or Qualified
Matching Contributions, in the discretion
of the Employer, for the year in which the
Forfeiture arose.
IV [ ] Forfeitures shall be applied to reduce the
Employer Profit Sharing Contributions,
Employer Matching Contributions, Qualified
Nonelective Contributions or Qualified
Matching Contributions, in the discretion
of the Employer, for the Plan Year
following the Plan Year in which the
Forfeiture arose.
C. Forfeitures of Excess Aggregate Contributions shall
be:
I [ ] Applied to reduce Employer contributions
for the Plan Year in which the excess
arose, but allocated as below, to the
extent the excess exceeds Employer
contributions for the Plan Year, or the
Employer has already contributed for such
Plan Year.
II [X] Allocated after all other forfeitures under
the Plan:
(A) [X] to the Matching Contribution account
of each Non-highly Compensated
Participant who made Before Tax
Contributions or After Tax
Contributions in the ratio which each
such Participant's Compensation for
the Plan Year bears to the total
Compensation of all such Participants
for the Plan Year; or,
(B) [ ] to the Matching Contribution account
of each Non-highly Compensated
Eligible Participant in the ratio
which each Eligible Participant's
Compensation for the Plan Year bears
to the total Compensation of all
Eligible Participants for the Plan
Year.
7. IN-SERVICE DISTRIBUTIONS (SELECT AS MAY BE APPROPRIATE):
A. [ ] There shall be no in-service distribution of
Participant account balances derived from Before
Tax Contributions (including Qualified
Nonelective Contributions and Qualified Matching
Contributions treated as Before Tax
Contributions under the terms of the Basic Plan
Document), or Employer Matching Contributions.
B. [ ] Participants may request an in-service
distribution of their account balance
attributable to Employer Matching Contributions,
for the following reasons:
I [ ] For purposes of satisfying a financial
hardship, as determined in accordance with
the uniform nondiscriminatory policy of the
Committee;
II [ ] Attainment of age 59 1/2 by the
Participant; or
III [ ] Attainment of the Plan's Normal Retirement
Date by the Participant.
c. [X] Participants may request an in-service
distribution of their account balance
attributable to Employee Before Tax
Contributions, for the following reasons:
I [ ] For purposes of satisfying a financial
hardship, as determined by the facts and
circumstances of an Employee's situation,
in accordance with the provisions of
Section 3.9 of the Basic Plan Document;
II [X] For purposes of satisfying a financial
hardship, using the "safe harbor"
provisions of Section 3.9 of the Basic Plan
Document.
III [X] Attainment of age 59 1/2 by the
Participant; or
IV [ ] Attainment of the Plan's Normal Retirement
Date by the Participant.
<PAGE>
NOTICE: 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 the provisions of Section
401 of the Internal Revenue Code. In order to obtain reliance with
respect to the Plan's qualification, the Employer must apply to the
Key District Office of the Internal Revenue Service for a
determination letter.
This Adoption Agreement may only be used in conjunction with Basic
Plan Document # 05.
This Plan document may only be used under the express authority of
KeyCorp, its subsidiaries and affiliates, and is not effective as
completed until executed by a duly authorized officer of KeyCorp,
one of its subsidiaries or affiliates, and approved by KeyCorp's
counsel.
KeyCorp, as sponsor, may amend or discontinue this prototype plan
document upon proper notification to all adopting Employers pursuant
to Revenue Ruling 89-13.
Failure to properly fill out an Adoption Agreement may result in
disqualification of the Plan, and adverse tax consequences to the
Employer and Plan Participants.
This Plan is sponsored by:
KeyCorp, on behalf of its operating subsidiaries,
banking and trust company affiliates
127 Public Square
Cleveland, Ohio 44114
(800) 982-3811
<PAGE>
IN WITNESS WHEREOF, the Employer and the Trustee, by their
respective duly authorized officers, have caused this Adoption
Agreement to be executed on this 31ST day of DECEMBER, 1999.
EMPLOYER: CTB, INC.
By: /s/ Don J. Steinhilber
Title: VP & CFO
TRUSTEE: Key Trust Company of Indiana, NA
By: /s/ George M. Newsham
Title: Assistant Vice President
and
By: /s/ Elaine Duncan
Title: Vice President
Approved on Behalf of Trustee:
Initials: ED Date: 1/6/00
<PAGE>
Footnotes:
(1) Footnotes in this Adoption Agreement are not to be construed as
part of the Plan provisions but are explanatory only. To the
extent a footnote is inconsistent with the provisions of the
Basic Plan Document or applicable law, the provisions of the
Plan shall be construed in conformity with the Basic Plan
Document or law.
(2) Terms that are capitalized are defined in the
PRISM<reg-trade-mark> PROTOTYPE RETIREMENT PLAN & TRUST BASIC
PLAN DOCUMENT.
(3) The Plan will have an individual TIN, distinct from the
Employer TIN.
(4) Committee members direct the day to day operation of the Plan.
Committee members serve at the pleasure of the Employer. See
Section 11.4 for changes in Committee membership. If no
Committee members are specified, the Employer shall assume
responsibility for the operations of the Plan.
(5) If no amount is specified, the maximum amount of Compensation
allowed under Code Section 401(a)(17) (the "$150,000 limit"
("$200,000 limit" prior to the Plan Year beginning before
January 1, 1994)), as adjusted from time to time, shall be
used.
(6) If a fractional year is elected, the elapsed time method of
computing service shall be used for the fractional year.
Eligibility provisions for optional cash or deferred
arrangements are contained in Item C of this Adoption
Agreement.
(7) Notwithstanding the foregoing, an Employee who has met the
eligibility requirements may not enter the Plan later than six
months following the date on which the Employee first completes
the eligibility requirements.
(8) Notwithstanding the selection made in this Item B(7)(a), a
Participant shall be fully vested in his or her Employer
Contribution Accounts if the Participant dies or becomes
Disabled while in the employ of the Employer.
(9) If more than one Year of Service is an eligibility requirement,
Item viii MUST be selected.
(10) The provisions of this section will be administered by the
Employer on a consistent and nondiscriminatory basis.
(11) Amounts designated as Qualified Nonelective Contributions will
be allocated pursuant to Section 3.1(A)(14) of the Basic Plan
Document.
(12) In the event contributions are allocated on a basis other than
a full plan year, the Year of Service shall be based on the
elapsed time method of calculation, and a Participant shall be
deemed to have completed an appropriate Period of Service for
allocation purposes if the Participant has completed a pro-rata
Period of Service corresponding to the interval on which
contributions are allocated.
(13) Excess Compensation means a Participant's Compensation in
excess of the Permitted Disparity Level specified in the
Definitions section of this Adoption Agreement.
(14) This option shall only be effective if Item 8(b)(i)(c) has been
selected. Even if this Item is selected, the provisions of
Section 4.8 of the Basic Plan Document may supersede this
requirement if necessary to satisfy Code Sections 401(a)(26)
and 410(b).
(15) If this option is selected, iii or iv MUST be selected to
reallocate Forfeitures of Employer Profit Sharing Contributions
REMAINING after expenses of administering the Plan have been
paid.
(16) This Item is for use in identifying collective trust funds,
which, pursuant to Revenue Ruling 81-100 must be specifically
referenced in the Plan. Actual Investment Funds are referenced
on the Investment Fund Designation form attached to this
Adoption Agreement.
(17) If this option is selected, the Employer must establish
appropriate procedures for implementation of the Plan's loan
program.
(18) The date specified is for the refund of amount deferred in
excess of the Code Section 402(g) limit (the $7,000 limit) for
the Participant's taxable year.
(19) The Employer shall have the right to designate all, or any
portion of Employer Matching Contributions as Qualified
Matching Contributions, which shall then be subject to the same
vesting, distribution, and withdrawal restrictions as Before
Tax Contributions.
(20) Net Profits will never be required for the contribution of
Before Tax Contributions, After Tax Contributions, Qualified
Nonelective Contributions or Qualified Matching Contributions.
(21) Notwithstanding anything in the Adoption Agreement to the
contrary, amounts in a Participant's account attributable to
Before Tax Contributions, Qualified Nonelective Contributions,
and Qualified Matching Contributions shall be 100% vested and
nonforfeitable at all time.
(22) Notwithstanding the selection made in this Item B(7)(b), a
Participant shall be fully vested in his or her Employer
Contribution Accounts if the Participant dies or becomes
Disabled while in the employ of the Employer.
(23) The provisions of this section will be administered by the
Employer on a consistent and nondiscriminatory basis.
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of CTB International Corp. on Form S-8 of our reports dated March 8, 1999,
appearing in and incorporated by reference in the Annual Report on Form 10-
K of CTB International Corp. for the year ended December 31, 1998.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Chicago, Illinois
January 28, 2000
<PAGE>
