As filed with the Securities and Exchange Commission on March __, 1999
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
TRAVEL SERVICES INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
FLORIDA 52-2030324
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
--------------------
220 CONGRESS PARK DRIVE
DELRAY BEACH, FLORIDA 33445
(561) 266-0860
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
--------------------
TRAVEL SERVICES INTERNATIONAL, INC.
401(K) RETIREMENT PLAN
(Full title of the Plan)
---------------------
JOSEPH V. VITTORIA
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
TRAVEL SERVICES INTERNATIONAL, INC.
220 CONGRESS PARK DRIVE
DELRAY BEACH, FLORIDA 33445
(561) 266-0860
(Name and address, including zip code, and telephone
number, including area code, of agent for service)
--------------------
COPIES TO:
ROBERT G. ROBISON, ESQ. SUZANNE B. BELL, ESQ.
MORGAN, LEWIS & BOCKIUS LLP SENIOR VICE PRESIDENT AND GENERAL COUNSEL
101 PARK AVENUE TRAVEL SERVICES INTERNATIONAL, INC.
NEW YORK, NEW YORK 10178 220 CONGRESS PARK DRIVE
(212) 309-6000 DELRAY BEACH, FLORIDA 33445
(561) 266-0860
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CALCULATION OF REGISTRATION FEE(1)
============================================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES TO AMOUNT TO BE OFFERING AGGREGATE OFFERING REGISTRATION FEE
BE REGISTERED REGISTERED (1) PRICE PER SHARE PRICE (2) (3)
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$0.01 per share 1,000,000 $10.9375 $10,937,500 $3,040.62
==============================================================================================================================
</TABLE>
(1) This Registration Statement covers shares of Common Stock of Travel Services
International, Inc. that may be offered or sold pursuant to the Travel
Services International, Inc. 401(k) Retirement Plan (the "Plan"). Pursuant
to Rule 416(c) under the Securities Act of 1933, as amended (the "Securities
Act"), this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the Plan. In addition, pursuant
to Rule 457(h)(2) under the Securities Act, no registration fee is required
with respect to such interests in the Plan. This Registration Statement also
relates to an indeterminate number of shares of Common Stock that may be
issued upon stock splits, stock dividends or similar transactions in
accordance with Rule 416 under the Securities Act.
(2) Estimated pursuant to paragraphs (c) and (h) of Rule 457 under the
Securities Act solely for the purpose of calculating the registration fee,
based upon the average of the reported high and low sales prices for a share
of Common Stock on March 24, 1999, as reported on the Nasdaq Stock Market.
(3) Calculated pursuant to Section 6(b) of the Securities Act as follows:
proposed maximum aggregate offering price multiplied by .000278.
<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 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 Introductory Note to Part I of
Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed with the Securities and
Exchange Commission (the "Commission") by Travel Services International, Inc.,
(the "Company"), are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998, filed with the Commission on March 30, 1999.
(b) The description of the Common Stock contained in the Company's
Registration Statement on Form S-1 (File No. 333-56567), filed with the
Commission on July 15, 1998, including any amendments or reports filed for the
purpose of updating any such description.
In addition, all reports and other documents subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act, as amended (the "Exchange Act") prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
filing of such reports and documents.
Any statement contained herein, or in a document, all or a portion of which
is incorporated or deemed to be incorporated by reference herein, shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
EXPERTS
The consolidated financial statements of the Company included in the
Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1998
and incorporated by reference in this Registration Statement have been audited
by Arthur Andersen LLP, independent public accountants, as indicated in their
report dated February 12, 1999, and are included herein in reliance upon the
authority of said firm as experts in accounting and auditing in giving said
reports. The financial statement of Lexington Services Associates, Ltd. at
December 31, 1997 and for the year then ended appearing in the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1998 and incorporated
by reference in this Registration Statement have been audited by Ernst & Young
LLP, independent auditors, as indicated in their report dated April 17, 1998
(except Note 6, as to which the date is June 1, 1998), and incorporated herein
by reference. Such financial statements are incorporated herein by reference
in reliance upon their report given upon the authority of such firm as experts
in accounting and auditing.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company has authority under Section 607.0850 of the Florida Business
Corporation Act to indemnify its directors and officers to the extent provided
in such statute. In general, Florida law permits a Florida corporation to
indemnify its directors, officers, employees and agents, and persons serving at
the corporation's request in such capacities for another enterprise, against
liabilities arising from conduct that such persons reasonably believed to be in,
or not opposed to, the best interests of the corporation and, with respect to
any criminal action or proceeding, had no reasonable cause to believe their
conduct was unlawful.
The provisions of the Florida Business Corporation Act that authorize
indemnification do not eliminate the duty of care of a director, and in
appropriate circumstances equitable remedies such as injunctive or other forms
of nonmonetary relief will remain available under Florida law. In addition, each
director will continue to be subject to liability for (a) violations of the
criminal law, unless the director had reasonable cause to believe his conduct
was lawful or had no reasonable cause to believe his conduct was unlawful; (b)
deriving an improper personal benefit from a transaction; (c) voting for or
assenting to an unlawful distribution; and (d) willful misconduct or a conscious
disregard for the best interests of the Company in a proceeding by or in the
right of the Company to procure a judgment in its favor or in a proceeding by or
in the right of a shareholder. The statute does not affect a director's
responsibilities under any other law, such as the federal securities laws or
state or federal environmental laws.
Article VII of the Company's articles of incorporation (the "Florida
Articles") states that: "A director shall not be personally liable to the
Corporation [i.e., the "Company"] or the holders of shares of capital stock or
any other person for monetary damages for any statement, vote, decision, act or
failure to act, for which such liability is precluded or otherwise eliminated
under Section 607.0831 or otherwise under the Florida Business Corporation Act.
If the Florida Business Corporation Act is hereafter amended to authorize the
further or broader elimination or limitation of the personal liability of
directors, then the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the Florida Business
Corporation Act, as so amended. No repeal or modification of this Article VII
shall adversely affect any right of or protection afforded to a director of the
Corporation existing immediately prior to such repeal or modification." Article
VIII of the Company's Florida Articles states that: "The Corporation shall
indemnify and may advance expenses to, and may purchase and maintain insurance
on behalf of, its officers and directors to the fullest extent permitted by law
as now or hereafter in effect. Without limiting the generality of the foregoing,
the Bylaws may provide for indemnification and advancement of expenses to
officers, directors, employees and agents on such terms and conditions as the
board may from time to time deem appropriate or advisable." In addition, the
Company's Bylaws further provide that the Company shall indemnify its officers,
directors, advisory directors and employees to the fullest extent permitted by
law.
The Company will enter into indemnification agreements with each of its
executive officers, its advisory director and directors which indemnifies such
person to the fullest extent permitted by its Florida Articles, its Bylaws and
under the Florida Business Corporation Act. The Company also maintains directors
and officers liability insurance.
ITEM 7. EXEMPTION FROM REGISTRATION.
Not applicable.
ITEM 8. EXHIBITS.(1)
EXHIBIT DESCRIPTION
------- -----------
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Ernst & Young LLP.
24 Powers of Attorney (included on signature pages hereof).
99.1 Travel Services International, Inc. 401(k) Retirement Plan,
effective as of July 1, 1998.
II-2
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99.2 Resolution of the Board of Directors of Travel Services
International, Inc., adopting the Travel Services
International, Inc. 401(k) Retirement Plan.
- ------------
(1) In lieu of an opinion of counsel concerning compliance with the requirements
of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), and that the Plan is qualified under Section 401 of the Internal
Revenue Code of 1986, as amended (the "Code") the Company hereby undertakes
that it will submit the Plan and any amendments thereto to the Internal
Revenue Service ("IRS") in a timely manner and it will make all changes as
required by the IRS in order to qualify the Plan.
II-3
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ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this 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 this Registration
Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule
424(b) of the Securities Act if, in the aggregate, the changes
in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration
statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in the Registration Statement;
PROVIDED, HOWEVER, that the undertakings set forth in paragraphs (a)(1)(i) and
(a)(1)(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the Company pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the Company's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Company of expenses incurred or paid by a director,
officer or controlling person of the Company in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Company will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-4
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Delray Beach, State of Florida, on March __, 1999.
TRAVEL SERVICES INTERNATIONAL, INC.
BY: /s/ JILL M. VALES
-------------------------------------------------
JILL M. VALES
SENIOR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
POWERS OF ATTORNEY
Each person whose signature appears below hereby authorizes, appoints and
constitutes Joseph V. Vittoria and Jill M. Vales each of them singly, his or her
true and lawful attorneys-in-fact with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities to sign and file any and all amendments to this report with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, and he or she hereby ratifies and confirms
all that said attorneys-in-fact or any of them, or their substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirement of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ JOSEPH V. VITTORIA Chairman of the Board, March 29, 1999
- ------------------------- Chief Executive Officer,
Joseph V. Vittoria Director
(Principal Executive Officer)
/s/ JILL M. VALES Senior Vice President, March 29, 1999
- ------------------------- Chief Financial Officer
Jill M. Vales (Principal Financial and
Principal Accounting Officer)
/s/ ROBERT G. FALCONE Director March 29, 1999
- -------------------------
Robert G. Falcone
/s/ WAYNE HELLER Director March 29, 1999
- -------------------------
Wayne Heller
II-5
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SIGNATURE TITLE DATE
--------- ----- ----
/s/ IMAD KHALIDI Director March 29, 1999
- -------------------------
Imad Khalidi
/s/ JOHN W. PRZYWARE Director March 29, 1999
- -------------------------
John W. Przyware
/s/ ELAN J. BLUTINGER Director March 29, 1999
- -------------------------
Elan J. Blutinger
/s/ D. FRASER BULLOCK Director March 29, 1999
- -------------------------
D. Fraser Bullock
/s/ TOMMASSO ZANZOTTO Director March 29, 1999
- -------------------------
Tommasso Zanzotto
Pursuant to the requirements of the Securities Act of 1933, the
representative for the Plan Administrator has caused this registration statement
to be signed on its behalf by the undersigned, thereunder duly authorized, in
the City of Delray Beach, State of Florida on March , 1999.
Travel Services International, Inc.
401(k) Retirement Plan
By: /s/ LISA DIBONA
---------------------------------
Lisa DiBona
Representative for the
Plan Administrator
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EXHIBITS INDEX
EXHIBIT DESCRIPTION
------- -----------
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Ernst & Young LLP.
24 Powers of Attorney (included on signature pages hereof).
99.1 Travel Services International, Inc. 401(k) Retirement Plan,
effective as of July 1, 1998.
99.2 Resolution of the Board of Directors of Travel Services
International, Inc., adopting the Travel Services
International, Inc. 401(k) Retirement Plan.
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of Travel Services
International, Inc. of our reports dated February 12, 1999 included (or
incorporated by reference) in Travel Services International, Inc. Form 10-K, for
the year ended December 31, 1998, and to all references to our firm included in
this Registration Statement.
ARTHUR ANDERSEN LLP
West Palm Beach, Florida
March 30, 1999
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Form S-8
Registration Statement of Travel Services International, Inc. of our report
dated April 17, 1998 (except Note 6, as to which the date is June 1, 1998) with
respect to the financial statements of Lexington Services Associates, LTD, for
the year ended December 31, 1997, incorporated by reference in Travel Services
International, Inc.'s Form 10-K for the year ended December 31, 1998.
ERNST & YOUNG LLP
Dallas, Texas
March 30, 1999
EXHIBIT 99.1
CONNECTICUT GENERAL LIFE INSURANCE COMPANY
DEFINED CONTRIBUTION PLAN
BASIC PLAN DOCUMENT NUMBER 03
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BASIC PLAN DOCUMENT 03
TABLE OF CONTENTS
SECTION CONTENTS PAGE
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ARTICLE I - DEFINITIONS
1.1 Accrued Benefit ....................................................... 1
1.2 Additional Matching Contributions ..................................... 1
1.3 Adoption Agreement .................................................... 1
1.4 Alternate Payee ....................................................... 1
1.5 Annuity ............................................................... 1
1.6 Annuity Contract ...................................................... 1
1.7 Annuity Starting Date ................................................. 1
1.8 Beneficiary ........................................................... 1
1.9 Board of Directors .................................................... 2
1.10 CODA ................................................................. 2
1.11 Code ................................................................. 2
1.12 Compensation ......................................................... 2
1.13 Considered Net Profits ............................................... 5
1.14 Contribution Period .................................................. 5
1.15 Davis-Bacon Act ...................................................... 6
1.16 Disability ........................................................... 6
1.17 Disability Retirement Date ........................................... 6
1.18 Early Retirement Date ................................................ 6
1.19 Earned Income ........................................................ 6
1.20 Effective Date ....................................................... 7
1.21 Elective Deferral Contributions ...................................... 7
1.22 Employee ............................................................. 7
1.23 Employee Contributions ............................................... 7
1.24 Employer ............................................................. 7
1.25 Entry Date ........................................................... 8
1.26 ERISA ................................................................ 8
1.27 Fiduciary ............................................................ 8
1.28 Forfeiture ........................................................... 8
1.29 Highly Compensated Employee .......................................... 8
1.30 Insurance Company .................................................... 11
1.31 Late Retirement Date ................................................. 11
1.32 Leased Employee ...................................................... 11
1.33 Life Annuity ......................................................... 12
1.34 Life Insurance Policy ................................................ 12
1.35 Matching Contributions ............................................... 12
1.36 Money Purchase Pension Contributions ................................. 12
1.37 Named Fiduciary ...................................................... 12
1.38 Nonelective Contributions ............................................ l2
1.39 Non-Trusteed ......................................................... 13
1.40 Normal Retirement Age ................................................ 13
1.41 Normal Retirement Date ............................................... l3
1.42 Owner-Employee ....................................................... 13
1.43 Participant .......................................................... l3
1.44 Participant's Account ................................................ 13
1.45 Participant's Employer Stock Account ................................. 14
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1.46 Partner .............................................................. 14
1.47 Partnership .......................................................... 14
1.48 Person ............................................................... 15
1.49 Plan ................................................................. 15
1.50 Plan Administrator ................................................... 15
1.51 Plan Year ............................................................ 15
1.52 Prevailing Wage Law .................................................. 15
1.53 Prior Employer Contributions ......................................... 15
1.54 Prior Required Employee Contributions ................................ 15
1.55 Prior Voluntary Employee Contributions ............................... 15
1.56 QDRO ................................................................. 15
1.57 Qualified Matching Contributions ..................................... 15
1.58 Qualified Nonelective Contributions .................................. 15
1.59 QVEC Contributions ................................................... 16
1.60 Required Employee Contributions ...................................... 16
1.61 Rollover Contribution ................................................ 16
1.62 Salary Deferral Agreement ............................................ 16
1.63 Self-Employed Individual ............................................. 16
1.64 Serious Financial Hardship ........................................... 16
1.65 Shareholder-Employee ................................................. 16
1.66 Social Security Integration Level .................................... 16
1.67 Social Security Taxable Wage Base .................................... 16
1.68 Sponsoring Organization .............................................. 16
1.69 Spouse ............................................................... l7
1.70 Straight Life Annuity ................................................ 17
1.71 Termination of Employment ............................................ 17
1.72 True-Up Contributions ................................................ 17
1.73 Trust ................................................................ 17
1.74 Trustee .............................................................. 17
1.75 Vested Interest ...................................................... 17
1.76 Vesting Percentage ................................................... 18
1.77 Voluntary Employee Contributions ..................................... 18
ARTICLE II - GENERAL PROVISIONS
2A. SERVICE
2A.1 Service .............................................................. 19
2A.2 Absence from Employment .............................................. 19
2A.3 Hour of Service ...................................................... 19
2A.4 1-Year Break-in-Service .............................................. 20
2A.5 Year(s) of Service ................................................... 2O
2A.6 Determining Vesting Percentage ....................................... 21
2A.7 Excluded Years of Service for Vesting ................................ 22
2A.8 Change in Plan Years ................................................. 22
2A.9 Elapsed Time ......................................................... 23
2A.10 Excluded Periods of Service for Vesting ............................. 24
2B. ELIGIBILITY, ENROLLMENT AND PARTICIPATION
2B.1 Eligibility .......................................................... 24
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2B.2 Enrollment ........................................................... 24
2B.3 Reemployed Participant ............................................... 25
2B.4 Eligible Class ....................................................... 25
2B.5 Waiver of Participation .............................................. 25
2B.6 Trades or Businesses Controlled by Owner-Employees ................... 25
2C. CONTRIBUTIONS AND ALLOCATIONS
2C.1 Profit Sharing/Thrift Plan with 401(k) Feature ....................... 26
2C.2 Money Purchase Pension Plan .......................................... 34
2C.3 Rollover Contributions ............................................... 37
2C.4 Contributions Subject to Davis-Bacon Act ............................. 37
2C.5 QVEC Contributions ................................................... 37
ARTICLE III - DISTRIBUTIONS
3A. TIMING AND FORM OF BENEFITS
3A.1 Payment of Benefits .................................................. 38
3A.2 Commencement of Benefits ............................................. 40
3A.3 From Life Insurance Policies ......................................... 41
3A.4 Nontransferable ...................................................... 41
3A.5 Alternate Payee Special Distribution ................................. 41
3B. MINIMUM DISTRIBUTION REQUIREMENTS
3B.1 Definitions .......................................................... 41
3B.2 Distribution Requirements ............................................ 43
3B.3 Death Distribution Provisions ........................................ 44
3B.4 Transitional Rule .................................................... 45
3C. JOINT AND SURVIVOR ANNUITY REQUIREMENTS
3C.1 Applicability ........................................................ 47
3C.2 Definitions .......................................................... 47
3C.3 Qualified Joint and Survivor Annuity ................................. 48
3C.4 Qualified Preretirement Survivor Annuity ............................. 48
3C.5 Notice Requirements .................................................. 48
3C.6 Safe Harbor Rules .................................................... 49
3C.7 Transitional Rules ................................................... 50
3D. TERMINATION OF EMPLOYMENT
3D.1 Distribution ......................................................... 52
3D.2 Repayment of Prior Distribution ...................................... 53
3D.3 Life Insurance Policy ................................................ 54
3D.4 No Further Rights or Interest ........................................ 54
3D.5 Forfeiture ........................................................... 54
3D.6 Lost Participant ..................................................... 55
3D.7 Deferral of Distribution ............................................. 55
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3E. WITHDRAWALS
3E.1 Withdrawal - Employee Contributions .................................. 55
3E.2 Withdrawal - Elective Deferral Contributions ......................... 56
3E.3 Withdrawal - Employer Contributions .................................. 56
3E.4 Withdrawal for Serious Financial Hardship of Contributions Other than
Elective Deferral Contributions ...................................... 57
3E.5 Withdrawal for Serious Financial Hardship of Elective Deferral
Contributions ........................................................ 57
3E.6 Withdrawal - QVEC Contributions and Rollover Contributions ........... 58
3E.7 Notification ......................................................... 58
3E.8 Vesting Continuation ................................................. 59
3E.9 Withdrawal - Participant's Employer Stock Account .................... 59
3E.10 Withdrawal by Terminated Participants ............................... 59
3F. DIRECT ROLLOVERS
3F.1 Definitions .......................................................... 59
3F.2 Direct Rollovers ..................................................... 59
ARTICLE IV - LEGAL LIMITATIONS ON CONTRIBUTIONS
4A. NONDISCRIMINATION TESTS
4A.1 Definitions .......................................................... 61
4A.2 Actual Deferral Percentage Test ...................................... 62
4A.3 Special Rules - ADP Test ............................................. 62
4A.4 Actual Contribution Percentage Test .................................. 63
4A.5 Special Rules - ADP/ACP Tests ........................................ 64
4B. LIMITATIONS ON ALLOCATIONS
4B.1 Definitions .......................................................... 65
4B.2 Basic Limitation ..................................................... 69
4B.3 Estimated Maximum Permissible Amount ................................. 70
4B.4 Actual Maximum Permissible Amount .................................... 70
4B.5 Participants Covered by Another Prototype Defined
Contribution Plan .................................................... 70
4B.6 Participants Covered by Non-Prototype Defined Contribution Plan ...... 71
4B.7 Participants Covered by Defined Benefit Plan ......................... 71
4C. TREATMENT OF EXCESSES
4C.1 Definitions .......................................................... 72
4C.2 Excess Elective Deferral Contributions ............................... 72
4C.3 Excess Annual Additions .............................................. 73
4C.4 Excess Contributions ................................................. 74
4C.5 Excess Aggregate Contributions ....................................... 75
ARTICLE V - PARTICIPANT PROVISIONS
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5A. ANNUITY CONTRACT AND PARTICIPANT'S ACCOUNT
5A.1 Participant's Account ................................................ 76
5A.2 Investment Transfers ................................................. 76
5A.3 Participant's Account Valuation ...................................... 76
5B. LIFE INSURANCE POLICIES
5B.1 Optional Purchase of Life Insurance .................................. 77
5B.2 Premiums on Life Insurance Policies .................................. 77
5B.3 Limitations on Premiums .............................................. 77
5B.4 Disposal ............................................................. 77
5B.5 Rights under Policies ................................................ 78
5B.6 Loans ................................................................ 78
5B.7 Conditions of Coverage ............................................... 78
5B.8 Policy Not Yet in Force .............................................. 78
5B.9 Value of Policy ...................................................... 78
5B.10 Dividends ........................................................... 78
5B.11 Distribution ........................................................ 78
5B.12 Application ......................................................... 78
5C. LOANS
5C.1 Loans to Participants ................................................ 79
5C.2 Loan Procedures ...................................................... 80
5D. PARTICIPANTS' RIGHTS
5D.1 General Rights of Participants and Beneficiaries ..................... 80
5D.2 Filing a Claim for Benefits .......................................... 80
5D.3 Denial of Claim ...................................................... 80
5D.4 Remedies Available to Participants ................................... 81
5D.5 Limitation of Rights ................................................. 81
5D.6 100% Vested Contributions ............................................ 81
5D.7 Reinstatement of Benefit ............................................. 81
5D.8 Non-Alienation ....................................................... 82
ARTICLE VI - OVERSEER PROVISIONS
6A. FIDUCIARY DUTIES AND RESPONSIBILITIES
6A.1 General Fiduciary Standard of Conduct ................................ 83
6A.2 Service in Multiple Capacities ....................................... 83
6A.3 Limitations on Fiduciary Liability ................................... 83
6A.4 Investment Manager ................................................... 83
6B. THE PLAN ADMINISTRATOR
6B.1 Designation and Acceptance 83
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6B.2 Duties and Responsibility ............................................ 83
6B.3 Special Duties ....................................................... 84
6B.4 Expenses and Compensation ............................................ 84
6B.5 Information from Employer ............................................ 84
6B.6 Administrative Committee; Multiple Signatures ........................ 84
6B.7 Resignation and Removal; Appointment of Successor .................... 84
6B.8 Investment Manager ................................................... 85
6B.9 Delegation of Duties ................................................. 85
6C. TRUST AGREEMENT
6C.1 Creation and Acceptance of Trust ..................................... 85
6C.2 Trustee Capacity; Co-Trustees ........................................ 85
6C.3 Resignation and Removal; Appointment of Successor Trustee ............ 85
6C.4 Taxes, Expenses and Compensation of Trustee .......................... 86
6C.5 Trustee Entitled to Consultation ..................................... 86
6C.6 Rights, Powers and Duties of Trustee ................................. 86
6C.7 Evidence of Trustee Action ........................................... 88
6C.8 Investment Policy .................................................... 88
6C.9 Period of the Trust .................................................. 89
6D. THE INSURANCE COMPANY
6D.1 Duties and Responsibilities .......................................... 89
6D.2 Relation to Employer, Plan Administrator and Participants ............ 89
6D.3 Relation to Trustee .................................................. 89
6E. ADOPTING EMPLOYER
6E.1 Election to Become Adopting Employer ................................. 89
6E.2 Definition ........................................................... 90
6E.3 Effective Date of Plan ............................................... 90
6E.4 Forfeitures .......................................................... 90
6E.5 Contributions ........................................................ 90
6E.6 Expenses ............................................................. 90
6E.7 Substitution of Plans ................................................ 90
6E.8 Termination of Plans ................................................. 90
6E.9 Amendment ............................................................ 90
6E.10 Plan Administrator's Authority ...................................... 90
ARTICLE VII - SPECIAL CIRCUMSTANCES WHICH MAY AFFECT THE PLAN
7A. TOP-HEAVY PROVISIONS
7A.1 Definitions .......................................................... 91
7A.2 Minimum Allocation ................................................... 93
7A.3 Minimum Vesting Schedule ............................................. 94
7B. AMENDMENT, TERMINATION OR MERGER OF THE PLAN
7B.1 Amendment of Elections under Adoption Agreement by Employer .......... 95
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7B.2 Amendment of Plan, Trust, and Form of Adoption Agreement ............. 96
7B.3 Conditions of Amendment .............................................. 96
7B.4 Termination of the Plan .............................................. 96
7B.5 Full Vesting ......................................................... 96
7B.6 Application of Forfeitures ........................................... 96
7B.7 Merger with Other Plan ............................................... 97
7B.8 Transfer from Other Plans ............................................ 97
7B.9 Transfer to Other Plans .............................................. 97
7B.10 Approval by the Internal Revenue Service ............................ 97
7B.11 Subsequent Unfavorable Determination ................................ 98
7C. SUBSTITUTION OF PLANS
7C.1 Substitution of Plans ................................................ 98
7C.2 Transfer of Assets ................................................... 98
7C.3 Substitution for Pre-Existing Master or Prototype Plan ............... 99
7C.4 Partial Substitution or Partial Transfer of the Plan or Assets ....... 99
ARTICLE VIII - MISCELLANEOUS
8.1 Nonreversion ......................................................... 100
8.2 Gender and Number .................................................... 100
8.3 Reference to the Internal Revenue Code and ERISA ..................... 100
8.4 Governing Law ........................................................ 100
8.5 Compliance with the Internal Revenue Code and ERISA .................. 100
8.6 Contribution Recapture ............................................... 100
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CONNECTICUT GENERAL LIFE INSURANCE COMPANY
DEFINED CONTRIBUTION PLAN
BASIC PLAN DOCUMENT NUMBER 03
The Plan set forth herein may be adopted by an Employer and accepted by the
Plan Administrator and, if applicable, the Trustee by executing an Adoption
Agreement, which together shall constitute the Employer's Plan, for the
exclusive benefit of its eligible Employees and their Beneficiaries, as
fully as if set forth in said Adoption Agreement; provided, however, no
Employer may adopt this Plan except with the consent of Connecticut General
Life Insurance Company.
ARTICLE I - DEFINITIONS
1.1 ACCRUED BENEFIT. The term Accrued Benefit means the value of the
Participant's Account on any applicable date.
1.2 ADDITIONAL MATCHING CONTRIBUTIONS. The term Additional Matching
Contributions means additional discretionary Matching Contributions
made to the Plan by the Employer, as authorized by its Board of
Directors by resolution. Additional Matching Contributions shall be
treated as Matching Contributions for nondiscrimination testing and
allocation purposes.
1.3 ADOPTION AGREEMENT. The term Adoption Agreement means the prescribed
agreement by which the Employer adopts this Plan, and which sets forth
the elective provisions of this Plan as specified by the Employer.
1.4 ALTERNATE PAYEE. The term Alternate Payee means a person, other than
the Participant, identified under a QDRO to be a recipient of part or
all of the Participant's benefit under the Plan.
1.5 ANNUITY. The term Annuity means a series of payments made over a
specified period of time.
1.6 ANNUITY CONTRACT. The term Annuity Contract means the group annuity
contract form issued by the Insurance Company to fund the benefits
provided under this Plan, as such contract may be amended from time to
time in accordance with the terms thereof. The Employer will specify
and communicate to its Employees the types of investments available
under this Plan and Annuity Contract.
1.7 ANNUITY STARTING DATE. The term Annuity Starting Date means the first
day of the first period for which an amount is paid as an Annuity or
any ocher form.
1.8 BENEFICIARY. The term Beneficiary means the beneficiary or
beneficiaries entitled to any benefits under a Participant's Account
hereunder upon the death of a Participant, Beneficiary or Alternate
Payee pursuant to a QDRO. If any Life Insurance Policy is purchased on
the life of a Participant hereunder, the Beneficiary under such Policy
shall be designated separately therein. However, any such Beneficiary
designation shall be subject to the terms of Section 3C.
A Participant's Beneficiary shall be his Spouse, if any, unless the
Participant designates a person or persons other than his Spouse as
Beneficiary with his Spouse's written consent. A Participant may
designate a Beneficiary on the form approved by the Plan
Administrator.
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If any distribution is made to a Beneficiary in the form of an
Annuity, and if such Annuity provides for a death benefit, then such
Beneficiary shall also have a right to designate a beneficiary and to
change that beneficiary from time to time. As an alternative to
receiving the benefit in the form of an Annuity, the Beneficiary may
elect to receive a single cash payment or any other form of payment
provided by the Employer's election in the Adoption Agreement.
If no Beneficiary has been designated pursuant to the provisions of
this Section, or if no Beneficiary survives the Participant and he has
no surviving Spouse, then the Beneficiary under the Plan shall be the
deceased I,articipant's surviving children in equal shares or, if
there are no surviving children, the Participants estate. If a
Beneficiary dies after becoming entitled to receive a distribution
under the Plan but before distribution is made to him in full, and if
no other Beneficiary has been designated to receive the balance of the
distribution in that event, the estate of the deceased Beneficiary
shall be the Beneficiary for the balance of the distribution.
If the Employer so elects in the Adoption Agreement, an Alternate
Payee and/or Beneficiary shall be allowed to direct the investment of
his segregated portion of the Participant's Account, pursuant to
Section SA. An individual who is designated as an Alternate Payee in a
QDRO relating to a Participant's benefits under this Plan shall be
treated as a Beneficiary hereunder, to the extent provided by such
order.
1.9 BOARD OF DIRECTORS. The term Board of Directors means the Employer's
board of directors or other comparable governing body.
1.10 CODA. The term CODA means cash or deferred arrangement as described in
Code section 401 (k) and the regulations thereunder.
1.11 CODE. The term Code means the Internal Revenue Code of 1986, as
amended from time to time.
1.12 COMPENSATION. The term Compensation means Compensation as defined
below. For any Self-Employed Individual covered under the Plan,
Compensation shall mean Earned Income. Compensation shall include only
that Compensation which is actually paid to the Participant during the
applicable 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.
An Employer may elect in the Adoption Agreement to use one of the
following definitions of Compensation for purposes of allocating all
contributions:
(a) WAGES, TIPS, AND OTHER COMPENSATION BOX ON FORM W-2. (Information
required to be reported under Code sections 6041, 6051 and 6052).
Wages within the meaning of Code section 3401(a) and all other
payments of compensation to an Employee by the Employer (in the
course of the Employer's trade or business) for which the
Employer is required to furnish the Employee a written statement
under Code sections 6041(d), 6051(a)(3), and 6052. Compensation
must be determined without regard to any rules under Code section
3401(a) that limit the remuneration included in wages based on
the nature or location of the employment or the services
performed (such as the exception for agricultural labor in Code
section 3401 (a)(2)).
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(b) SECTION 3401(A) WAGES. Wages as defined in Code 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 Code section 3401(a)(2)).
(c) 415 SAFE-HARBOR COMPENSATION. 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
includable in gross income (including, but not limited to,
commissions paid salesmen, compensation for services on the basis
of a percentage of profits, commissions on insurance premiums,
tips, bonuses, fringe benefits, and reimbursements or other
expense allowances under a nonaccountable plan as described in
Code section 1.62-2(c)), and excluding the following:
(1) Employer contributions to a plan of deferred compensation
which are not includable 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;
(2) Amounts realized from the exercise of a non-qualified stock
option, or when restricted stock (or property) held by the
Employee either becomes freely transferable or is no longer
subject to a substantial risk of forfeiture;
(3) Amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified stock
option; and
(4) Other amounts which received special tax benefits, or
contributions made by the Employer (whether or not under a
salary reduction agreement) towards the purchase of an
annuity contract described in Code section 403(b) (whether
or not the contributions are actually excludable from the
gross income of the Employee).
(d) MODIFIED WAGES, TIPS, AND OTHER COMPENSATION BOX ON FORM W-2.
Compensation as defined in subsection (a) above, but reduced by
all of the following items (even if includable in gross income):
reimbursements or other expense allowances, fringe benefits (cash
or noncash), moving expenses, deferred compensation, and welfare
benefits. This definition may not be used by standardized plans
or plans using a contribution or allocation formula that is
integrated with Social Security.
(e) MODIFIED SECTION 3401(A) WAGES. Compensation as defined in
subsection (c) above, but reduced by all of the following items
(even if includable in gross income): reimbursements or other
expense allowances, fringe benefits (cash or noncash), moving
expenses, deferred compensation, and welfare benefits. This
definition may not be used by standardized plans or plans using a
contribution or allocation formula that is integrated with Social
Security.
(f) MODIFIED 415 SAFE-HARBOR COMPENSATION. Compensation as defined in
subsection (d) above, but reduced by all of the following items
(even if
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includable in gross income): reimbursements or other expense
allowances, fringe benefits (cash or noncash), moving expenses,
deferred compensation, and welfare benefits. This definition may
not be used by standardized plans or plans using a contribution
or allocation formula that is integrated with Social Security.
(g) REGULAR OR BASE SALARY OR WAGES. Regular or base salary or wages
(excluding overtime and bonuses) received during the applicable
period by the Employee from the Employer. This definition may not
be used by standardized plans or plans using a contribution or
allocation formula that is integrated with Social Security.
(h) REGULAR OR BASE SALARY WAGES PLUS OVERTIME AND/OR BONUSES.
Regular or base salary or wages, plus either or both overtime
and/or bonuses, as elected by the Employer in the Adoption
Agreement, received during the applicable period by the Employee
from the Employer. This definition may not be used by
standardized plans or plans using a contribution or allocation
formula that is integrated with Social Security.
(i) A REASONABLE ALTERNATIVE DEFINITION OF COMPENSATION, as that term
is used in Code section 414(s)(3) and the regulations thereunder,
provided that the definition does not favor Highly Compensated
Employees and satisfies the nondiscrimination requirements under
Code section 414(s). This definition may not be used by
standardized plans or plans using a contribution or allocation
formula that is integrated with Social Security.
Notwithstanding the above, if elected by the Employer in the Adoption
Agreement, Compensation shall include any amount which is contributed
by the Employer pursuant to a salary reduction agreement and which is
not includable in the gross income of the Employee under Code sections
125, 402(e)(3), 402(h)(1)(B) or 403(b).
For years beginning on or after January 1, 1989, and before January 1,
1994, the annual Compensation of each Participant taken into account
for determining all benefits provided under the Plan for any Plan Year
shall not exceed $200,000. This limitation shall be adjusted by the
Secretary at the same time and in the same manner as under Code
section 415(d) (unless a lesser amount is elected by the Employer in
the Adoption Agreement), 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.
For Plan Years beginning on or after January 1, 1994, the annual
Compensation of each Participant taken into account for determining
all benefits provided under the Plan for any Plan Year shall not
exceed $150,000, as adjusted for increases in the cost-of-living in
accordance with Code section 401(a)(17)(B). The cost-of-living
adjustment in effect for a calendar year applies to any Determination
Period beginning in such calendar year.
If a Determination Period consists of 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 the 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
limit, the rules of Code section 414(q)(6) shall apply, except in
applying such rules, the
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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 limit is exceeded, then
(except for purposes of determining the portion of Compensation up to
the integration level if this Plan uses a contribution or allocation
formula that is integrated with Social Security), the limit 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 limit.
If Compensation for any prior Determination Period is taken into
account in determining an Employee's contributions or benefits for the
current year, the Compensation for such prior Determination Period is
subject to the applicable annual compensation limit in effect for that
prior period. For this purpose, in determining allocations in Plan
Years beginning on or before January 1, 1989, the annual compensation
limit in effect for Determination Periods before that date 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.
1.13 CONSIDERED NET PROFITS. The term Considered Net Profits means the
entire amount of the accumulated or current operating profits
(excluding capital gains from the sale or involuntary conversion of
capital or business assets) of the Employer after all expenses and
charges other than (1) the Employer contribution to this and any other
qualified plan, and (2) federal, state or local taxes based upon or
measured by income, as determined by the Employer, either on an
estimated basis or a final basis, in accordance with the generally
accepted accounting principles used by the Employer. When, for any
Plan Year, the amount of Considered Net Profits has been determined by
the Employer, and the Employer contribution made on the basis of such
determination, such determination and contribution shall be final and
conclusive and shall not be subject to change because of any
adjustments in income or expense which may be required by the Internal
Revenue Service or otherwise. Such determination and contribution
shall not be open to question by any Participant either before or
after the Employer contribution has been made.
In the case of an Employer that is a non-profit entity, the term
Considered Net Profits means the entire amount of the accumulated or
current operating surplus (excluding capital gains from the sale or
involuntary conversion of capital or business assets) of the Employer
after all expenses and charges other than (1) the contribution made by
the Employer to the Plan, and (2) federal, state or local taxes based
upon or measured by income, in accordance with the generally accepted
accounting principles used by the Employer.
1.14 CONTRIBUTION PERIOD. The term Contribution Period means that regular
period, specified by the Employer in its Adoption Agreement, for which
the Employer shall make Employer contributions, if any, and that
regular period specified by the Employer in its Adoption Agreement,
for which Participants may make Employee Contributions, if any, and
Elective Deferral Contributions, if any. The first Contribution Period
may be an irregular period, not longer than one month, commencing not
prior to the Effective Date. However, the first Contribution Period
for Elective Deferral Contributions may not commence before the later
of the Plan's Effective Date or adoption date.
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1.15 DAVIS-BACON ACT. The term Davis-Bacon Act means the Davis-Bacon Act
(40 U.S.C. section 276(a) ET SEQ., as amended from time to time),
which guarantees minimum wages to laborers and mechanics employed on
Federal government contracts for the construction, alteration, or
repair of public buildings or works. The minimums are the amounts
found by the Secretary of Labor to be prevailing for similar workers
in the area in which the work is to be done.
The term "wages" as used in the Davis-Bacon Act includes, in addition
to the basic hourly rate of pay, contributions irrevocably made to
trustees for pension benefits for laborers and mechanics employed on
Federal government contracts and the cost of other fringe benefits.
However, overtime pay is to be computed only on the basis of the basic
hourly rate of pay.
1.16 DISABILITY. The term Disability means a Participant's incapacity to
engage in any substantial gainful activity because of a 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 12 months. The performance and
degree of such impairment shall be supported by medical evidence. All
Participants in similar circumstances shall be treated alike.
If elected by the Employer in the Adoption Agreement, nonforfeitable
contributions will be made to the Plan on behalf of each disabled
Participant who is not a Highly Compensated Employee (within the
meaning of Section 1.29 of the Plan).
1.17 DISABILITY RETIREMENT DATE. The term Disability Retirement Date means
the first day of the month after the Plan Administrator has determined
that a Participant's incapacity is a Disability. A Participant who
retires from the Service of the Employer as of his Disability
Retirement Date shall have a Vesting Percentage of 100% and shall be
entitled to receive a distribution of the entire value of his
Participant's Account and any Life Insurance Policies, or the values
thereof, as of his Disability Retirement Date, subject to the
provisions of Section 3A and Section 3C.
1.18 EARLY RETIREMENT DATE. If the Employer has specified in its Adoption
Agreement that Early Retirement is permitted, then the term Early
Retirement Date means the first day of the month coinciding with or
next following the date a Participant is separated from Service with
the Employer for any reason other than death or Disability, provided
that on such date the Participant has attained . the conditions
specified by the Employer in its Adoption Agreement and has not
attained his Normal Retirement Age. A Participant who retires from the
Service of the Employer on his Early Retirement Date shall have a
Vesting Percentage of 100% and shall be entitled to receive a
distribution of the entire value of his Participant's Account and any
Life Insurance Policies, or the values thereof, as of his Early
Retirement Date, subject to the provisions of Section 3A and Section
3C.
If a Participant separates from Service before satisfying the age
requirement for Early Retirement, but has satisfied the Service
requirement, the Participant shall be 100% vested as of his
Termination of Employment date, but he will not be eligible for a
distribution of the entire value of his Participant's Account until
satisfying such age requirement.
1.19 EARNED INCOME. The term Earned Income means the net earnings from
self-employment in the trade or business with respect to which the
Plan is established, and for which the personal services of the
individual are a material
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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
made by the Employer to a qualified plan to the extent deductible
under Code section 404.
Net earnings shall be determined with regard to the deductions allowed
to the taxpayer by Code section 164(f) for taxable years beginning
after December 31, 1989.
1.20 EFFECTIVE DATE. The term Effective Date means the date specified by
the Employer in its Adoption Agreement as the Effective Date of the
Plan.
1.21 ELECTIVE DEFERRAL CONTRIBUTIONS. The term Elective Deferral
Contributions means contributions made by the Employer to the Plan at
the election of the Participant, in lieu of cash compensation, and
shall include contributions made pursuant to a Salary Deferral
Agreement or other deferral mechanism.
With respect to any taxable year, a Participant's elective deferral is
the sum of all Employer contributions made on behalf of such
Participant pursuant to an election to defer under any CODA, any
simplified employee pension cash or deferred arrangement as described
in section 402(h)(1)(B), any eligible deferred compensation plan as
described in section 457, any plan described in section 501(c)(18),
and any Employer contributions made on the behalf of a Participant for
the purchase of an annuity contract under section 403(b) pursuant to a
salary reduction agreement.
Elective Deferral Contributions shall not include those contributions
properly distributed as Excess Annual Additions, as defined in Section
4B.1 (g).
1.22 EMPLOYEE. The term Employee means any employee of the Employer
maintaining the Plan or any other employer required to be aggregated
with such Employer under Code sections 414(b), (c), (m), or (o).
The term Employee also includes any Leased Employee deemed to be an
Employee of the Employer in accordance with Code sections 414(n) or
(o).
1.23 EMPLOYEE CONTRIBUTIONS. The term Employee Contributions means
contributions to this Plan or any other plan, that are designated or
treated at the time of contribution as after-tax contributions made by
the Employee and are allocated to a separate account to which
attributable earnings and losses are allocated. Such term includes
Required Employee Contributions, Voluntary Employee Contributions,
Prior Required Employee Contributions, and Prior Voluntary Employee
Contributions.
1.24 EMPLOYER. The term Employer means the employer that adopts this Plan.
In the case of a group of Employers that constitutes a controlled
group of corporations (as defined in Code section 414(b)) or that
constitutes trades or businesses (whether or not incorporated) that
are under common control (as defined in section 414(c)) or that
constitutes an affiliated service group (as defined in section
414(m)), Service with all such employers shall be considered Service
with the Employer for purposes of eligibility and vesting. The term
Employer shall also mean any Adopting Employer as defined in Section
6E.2.
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A state or local government or political subdivision thereof, or any
agency or instrumentality thereof, or any organization exempt from tax
under Subtitle A of the code, may not elect a 401(k) option (CODA) in
the Adoption Agreement.
1.25 ENTRY DATE. The term Entry Date means either the Effective Date or
each applicable date thereafter as specified by the Employer in its
Adoption Agreement, when an Employee who has fulfilled the eligibility
requirements commences participation in the Plan.
If an Employee is not in the active Service of the Employer as of his
initial Entry Date, his subsequent Entry Date shall be the date he
returns to the active Service of the Employer, provided he still meets
the eligibility requirements. If an Employee does not enroll as a
Participant as of his initial Entry Date, his subsequent Entry Date
shall be the applicable Entry Date as specified by the Employer in the
Adoption Agreement when the Employee actually enrolls as a
Participant.
1.26 ERISA. The term ERISA means the Employee Retirement Income Security
Act of 1974 (PL 93-406) as it may be amended from time to time, and
any regulations issued pursuant thereto as such Act and such
regulations affect this plan and Trust.
1.27 FIDUCIARY. The term Fiduciary means any or all of the following, as
applicable:
(a) Any Person who exercises any discretionary authority or control
respecting the management of the Plan or its assets;
(b) Any Person who renders investment advice for a fee or other
compensation, direct or indirect, respecting any monies or other
property of the Plan or has authority or responsibility to do so;
(c) Any Person who has discretionary authority or responsibility in
the administration of the Plan;
(d) Any Person who has been designated by a Named Fiduciary pursuant
to authority granted by the Plan, who acts to carry out a
fiduciary responsibility, subject to any exceptions granted
directly or indirectly by ERISA.
1.28 FORFEITURE. The term Forfeiture means the amount, if any, by which the
value of a Participant's Account exceeds his Vested Interest upon the
occurrence of an immediate Break-in-Service, a 1-Year Break-in-Service
or 5 consecutive 1-Year Breaks-in-Service, as elected by the Employer
in its Adoption Agreement pursuant to Section 3D.5, following such
Participant's Termination of Employment.
1.29 HIGHLY COMPENSATED EMPLOYEE. The term Highly Compensated Employee
includes both Highly Compensated Active Employees and Highly
Compensated Former Employees.
As elected by the Employer in the Adoption Agreement, the method to
determine Highly Compensated Employees shall be:
(a) Traditional Method: A "Highly Compensated Active Employee"
includes any Employee who performs service for the Employer
during the Determination Year and who, during the Look-Back Year;
(1) Received Compensation from the Employer in excess of $75,000
(as ad lusted pursuant to Code section 415(d)); or
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(2) Received Compensation from the Employer in excess of $50,000
(as adjusted pursuant to Code section 415(d)) and was a
member of the top-paid group for such year; or
(3) Was an officer of the Employer and received Compensation
during such year that is greater than 50 percent of the
dollar limitation in effect under Code section 415(b)(1)(A).
The term Highly Compensated Employee also includes: (1) Employees
who are described in the preceding sentence if the term
"Determination Year" is substituted for the term "Look-Back Year"
and who are one of the 100 employees who received the most
Compensation from the Employer during the Determination Year; and
(2) Employees who are 5-percent owners at any time during the
Look-Back Year or Determination Year.
If no offices has satisfied the Compensation requirement of (3)
above during either a Determination Year or Look-Back 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 Look-Back Year shall be the period elected by the Employer in
the Adoption Agreement.
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 Look-Back 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 (a "Top 10
Highly Compensated Employee"), then the family member and the
5-percent owner or Top 10 Highly Compensated Employee shall be
aggregated. In such case, the family member and 5-percent owner
or Top 10 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 10
Highly Compensated Employee. For purposes of this Section, the
term "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 the
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 Code section
414(q) and the regulations thereunder.
For purposes of this definition, Compensation shall mean
compensation as defined in Code section 415(c)(3) except that
elective or salary reduction contributions to a cafeteria plan,
CODA or tax-sheltered annuity shall be included in Compensation.
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(b) SIMPLIFIED METHOD FOR EMPLOYERS IN MORE THAN ONE GEOGRAPHIC AREA:
If elected by the Employer in the Adoption Agreement, the
Traditional Method above will be modified by substituting $50,000
for $75,000 in (1) and by disregarding (2). This simplified
definition of Highly Compensated Employee will apply to Employers
that maintain significant business activities (and employ
Employees) in at least two significant, separate geographic
areas.
(c) ALTERNATIVE SIMPLIFIED METHOD: If elected by the Employer in the
Adoption Agreement, Highly Compensated Employees shall be
determined as follows: A Highly Compensated Active Employee
includes any Employee who performs service for the Employer
during the Determination Year and who:
(1) Is a 5-percent owner; or
(2) Received Compensation from the Employer in excess of $75,000
(as adjusted pursuant to Code section 415(d)); or
(3) Received Compensation from the Employer in excess of $50,000
(as adjusted pursuant to Code section 415(d)) and was a
member of the top-paid group for such year; or
(4) Was an officer of the Employer and received Compensation
during such year that is greater than 50 percent of the
dollar limitation in effect under Code section 415(b)(1)(A).
Under this simplified definition, the look-back provisions of
Code section 414(q) do not apply.
(d) ALTERNATIVE SIMPLIFIED METHOD WITH SNAPSHOT: If the Alternative
Simplified Method of determining Highly Compensated Employees is
selected by the Employer, the Employer may elect in the Adoption
Agreement to substantiate that the Plan complies with the
nondiscrimination requirements on the basis of the Employer's
work force on a single day during the Plan Year, provided that
day is reasonably representative of the Employer's work force and
the Plan's coverage throughout the Plan Year. The day elected by
the Employer and indicated on the Adoption Agreement shall be the
"Snapshot Day."
To apply the Alternative Simplified Method on a snapshot basis:
(1) The Employer determines who is a Highly Compensated Employee
on the basis of the data as of the Snapshot Day, except as
provided in (3) below.
(2) If the determination of who is a Highly Compensated Employee
is made earlier than the last day of the Plan Year, the
Employee's Compensation that is used to determine an
Employee's status must be projected for the Plan Year under
a reasonable method established by the Employer.
(3) If there are Employees not employed on the Snapshot Day who
are taken into account in testing, they must be determined
to be either Highly Compensated Employees or non-Highly
Compensated Employees. In addition to those Employees who
are determined to be Highly Compensated Employees on the
Plan's Snapshot Day, the
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Employer must treat as a Highly Compensated Employee any
eligible Employee for the Plan Year who:
(a) Terminated employment prior to the Snapshot Day and was
a Highly Compensated Employee in the prior Plan Year;
(b) Terminated employment prior to the Snapshot Day and (i)
was a 5-percent owner, or (ii) has Compensation for the
Plan Year greater than or equal to the projected
Compensation of any Employee who is treated as a Highly
Compensated Employee on the Snapshot Day (except for
Employees who are Highly Compensated Employees solely
because they are 5- percent owners or officers), or
(iii) was an officer and has Compensation greater than
or equal to the pro jected Compensation of any other
officer who is a Highly Compensated Employee on the
Snapshot Day solely because that person is an officer;
or
(c) Becomes employed after the Snapshot Day and (i) is a 5-
percent owner, or (ii) has Compensation for the Plan
Year greater than or equal to the projected
Compensation of any Employee who is treated as a Highly
Compensated Employee on the Snapshot Day (except for
Employees who are Highly Compensated Employees solely
because they are 5-percent owners or officers), or
(iii) is an officer and has Compensation greater than
or equal to the projected Compensation of any officer
who is a Highly Compensated Employee on the Snapshot
Day solely because that person is an officer.
1.30 INSURANCE COMPANY. The term Insurance Company means Connecticut
General Life Insurance Company, a legal reserve life insurance company
of Hartford, Connecticut. If any company other than Connecticut
General Life Insurance Company has issued any Life Insurance Policy
held by the Trustee under the Plan, then with respect to such Policy
only and matters pertaining directly thereto, the term Insurance
Company shall be deemed to refer to such other issuing company.
1.31 LATE RETIREMENT DATE. The term Late Retirement Date means the first
day of the month coinciding with or next following the date a
Participant is separated from Service with the Employer after his
Normal Retirement Age, for any reason other than death.
1.32 LEASED EMPLOYEE. The term Leased Employee means any person (other than
an Employee of the recipient Employer) who, pursuant to an agreement
between the recipient Employer and any other person (pleasing
organization"), has performed services for the recipient Employer (or
for the recipient Employer and related persons determined in
accordance with Code section 414(n)(6)) on a substantially full-time
basis for a period of at least one year, and such services are of a
type historically performed by employees in the business field of the
recipient Employer. 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.
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A Leased Employee shall not be considered an Employee of the recipient
Employer if: such employee is covered by a money purchase pension plan
of the leasing organization providing: (a) a nonintegrated employer
contribution rate of at least 10 percent of compensation, as defined
in Code section 415(c)(3), but including amounts contributed by the
employer pursuant to a salary reduction agreement which are excludable
from the Leased Employee's gross income under Code section 125,
section 402(e)(3), section 402(h)(1)(B) or section 403(b), (b)
immediate participation, and (c) full and immediate vesting; and (2)
Leased Employees do not constitute more than 20 percent of the
recipient's non-highly compensated work force.
1.33 LIFE ANNUITY. The term Life Annuity means an Annuity payable over the
life or life expectancy of one or more individuals.
1.34 LIFE INSURANCE POLICY. The term Life Insurance Policy (or Policy)
means a policy of individual life insurance purchased from the
insurance Company on the life of any Participant.
1.35 MATCHING CONTRIBUTIONS. The term Matching Contributions means
contributions made by the Employer to the Plan for a Participant on
account of either Elective Deferral Contributions or Required Employee
Contributions. In addition, any Forfeiture reallocated as a Matching
Contribution shall be considered a Matching Contribution for purposes
of this Plan. If elected by the Employer in the Adoption Agreement,
Matching Contributions shall be made out of Considered Net Profits in
an amount specified by the Employer in its Adoption Agreement for each
$1.00 contributed as either an Elective Deferral Contribution or a
Required Employee Contribution, as further specified by the Employer
in its Adoption Agreement. The term Matching Contributions shall
include Additional Matching Contributions.
Should there be insufficient Considered Net Profits of the Employer
for such Employer contribution, the amount of such Matching
Contributions may be diminished to the amount that can be made from
the Employer's Considered Net Profits.
The Employer may designate at the time of contribution that all or a
portion of such Matching Contributions be treated as Qualified
Matching Contributions.
If elected by the Employer in the Adoption Agreement, Partners shall
not be entitled to receive Matching Contributions. If Partners are
entitled to receive Matching Contributions, such Contributions shall
be considered Elective Deferral Contributions for all purposes under
this Plan.
1.36 MONEY PURCHASE PENSION CONTRIBUTIONS. The term Money Purchase Pension
Contributions means contributions made to the Plan by the Employer in
accordance with a definite formula as specified in the Adoption
Agreement.
1.37 NAMED FIDUCIARY. The term Named Fiduciary means the Administrator and
any other Fiduciary designated by the Employer, and any successor
thereto.
1.38 NONELECTIVE CONTRIBUTIONS. The term Nonelective Contributions means
contributions made to the Plan by the Employer in accordance with a
definite formula as specified in the Adoption Agreement. The Employer
may designate at the time of contribution that the Nonelective
Contribution shall be treated as a Qualified Nonelective Contribution.
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1.39 NON-TRUSTEED. The term Non-Trusteed means that the Employer has
specified in the Adoption Agreement that there will not be a Trust as
a part of the I,lan. Contributions under a Non-Trusteed plan will be
made directly to the insurance Company. If the Employer specifies in
the Adoption Agreement that the Plan is Non-Trusteed, then the terms
and provisions of this Plan relating to the Trust shall be of no force
or effect.
1.40 NORMAL RETIREMENT AGE. The term Normal Retirement Age means the age
selected in the Adoption Agreement. If the Employer enforces a
mandatory retirement age, the Normal Retirement Age is the lesser of
that mandatory age or the age specified in the Adoption Agreement.
Notwithstanding the vesting schedule elected by the Employer in the
Adoption Agreement, an Employee's right to his or her account balance
shall be nonforfeitable upon the attainment of Normal Retirement Age.
1.41 NORMAL RETIREMENT DATE. The term Normal Retirement Date means the
first day of the month coinciding with or next following the date a
Participant attains his Normal Retirement Age. If a Participant
retires from the Service of the Employer on his Normal Retirement
Date, he shall receive a distribution of the entire value of his
Participant's Account, as of his Normal Retirement Date, subject to
the provisions of Section 3A and Section 3C.
1.42 OWNER-EMPLOYEE. The term Owner-Employee means 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.
1.43 PARTICIPANT. The term l~articipant means any person who has a
Participant's Account in the Plan and/or Trust.
If elected by the Employer in the Adoption Agreement, for purposes of
the investment of contributions as described in Section SA, the term
Participant shall include former Participants, Beneficiaries, and
Alternate Payees. Former Participants shall include those Participants
who upon Termination of Employment elected to defer distribution in
accordance with Section 3A of the Plan.
1.44 PARTICIPANT'S ACCOUNT. The term l~articipant's Account means the sum
of the following sub-accounts maintained on behalf of each
Participant.
(a) Money Purchase Pension Contributions, if any, plus any income and
minus any loss thereon;
(b) Nonelective Contributions, if any, plus any income and minus any
loss thereon;
(c) Matching Contributions, if any, plus any income and minus any
loss thereon;
(d) Qualified Nonelective Contributions, if any, plus any income and
minus any loss thereon;
(e) Qualified Matching Contributions, if any, plus any income and
minus any loss thereon;
(f) Prior Employer Contributions, if any, plus any income and minus
any loss thereon;
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(g) Elective Deferral Contributions, if any, plus any income and
minus any loss thereon;
(h) Employee Contributions, if any, plus any income and minus any
loss thereon;
(i) QVEC Contributions, if any, plus any income and minus any loss
thereon.
(j) Rollover Contributions, if any, plus any income and minus any
loss thereon;
A Participant's Account shall be invested in accordance with rules
established by the Plan Administrator that shall be applied in a
consistent and nondiscriminatory manner.
1.45 PARTICIPANT'S EMPLOYER STOCK ACCOUNT. The term Participant's Employer
Stock Account means that portion, if any, of the Participant's Account
which is invested in shares of the Employer's stock. Such
Participant's Employer Stock Account shall be credited with dividends
paid, if any. Such Participant's Employer Stock Account will be valued
on each day that the public exchange, over which the Employer's stock
is traded, is open for unrestricted trading.
Amounts that are invested in the Participant's Employer Stock Account
may be invested in any short term account prior to actual investment
in the Participant's Employer Stock Account.
As elected by the Employer in the Adoption Agreement:
(a) The Trustee will vote the shares of the Employer's stock invested
in the Participant's Employer Stock Account; or
(b) The Trustee will vote the shares of the Employer's stock in
accordance with any instructions received by the Trustee from the
Participant. The Trustee may request voting instructions from the
Participants provided this is done in a consistent and
nondiscriminatory manner.
The ability of a Participant who is subject to the reporting
requirements of section 16(a) of the Securities Exchange Act of 1934
(the "Act") to make withdrawals or investment changes involving the
Participant's Employer Stock Account may be restricted by the Plan
Administrator to comply with the rules under section 16(b) of the Act.
A money purchase pension plan making an initial investment in shares
of the Employer's stock after December 31, 1974, may not acquire
shares to the extent that the aggregate fair market value of the
Employer's stock held by the Plan will exceed 10 percent of the fair
market value of the assets of the Plan.
1.46 PARTNER. The term Partner means a member of a Partnership.
1.47 PARTNERSHIP, The term Partnership means a partnership as defined in
Code section 7701(a)(2) and the regulations thereunder and includes a
syndicate, group, pool, joint venture, or other unincorporated
organization through or by means of which any business, financial
operation, or venture is carried on, and which is not a corporation or
a trust or estate within the meaning of the Code. A joint undertaking
merely to share expenses is not a Partnership. In addition, mere
co-ownership of property which is maintained, kept in repair, and
rented or leased does not constitute a Partnership.
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1.48 PERSON. The term Person means any natural person, partnership,
corporation, trust or estate.
1.49 PLAN. The term Plan means this Connecticut General Life Insurance
Company Defined Contribution Plan and the Adoption Agreement as
adopted by the Employer and as both may be amended from time to time.
1.50 PLAN ADMINISTRATOR. The term Plan Administrator means the Person or
Persons designated by the Employer in its Adoption Agreement and any
successor(s) thereto. If more than one Person shall be designated, the
committee thus formed shall be known as the Administrative Committee
and all references in the Plan to the Plan Administrator shall be
deemed to apply to the Administrative Committee. The Plan
Administrator shall signify in writing his acceptance of his
responsibility as a Named Fiduciary.
1.51 PLAN YEAR. The term Plan Year means the 12-consecutive month period
specified by the Employer in the Adoption Agreement.
If the Plan Year changes to a different 12-consecutive month period,
the first new Plan Year shall begin before the end of the last old
Plan Year. In this event, the period beginning on the first day of the
last old Plan Year and ending on the day before the first day of the
first new Plan Year shall be treated as a short Plan Year for purposes
of determining Highly Compensated Employees, performing the
Nondiscrimination Tests set forth in Section 4A, and applying the
Top-Heavy provisions of Section 7A. However, Service will be credited
in accordance with the provisions of Section 2A.8.
1.52 PREVAILING WAGE LAW. The term Prevailing Wage Law means any statute or
ordinance that requires the Employer to pay its Employees working on
public contracts at wage rates not less than those determined pursuant
to that statute classes of workers in the geographical area where the
contract is performed, including the Davis-Bacon Act and similar
Federal, state, or municipal prevailing wage statutes.
1.53 PRIOR EMPLOYER CONTRIBUTIONS. The term Prior Employer Contributions
means contributions made by the Employer prior to the date indicated
on the Adoption Agreement.
1.54 PRIOR REQUIRED EMPLOYEE CONTRIBUTIONS. The term Prior Required
Employee Contributions means Employee post-tax contributions that the
Employer required as either a condition of participation, or for
receiving an Employer contribution, prior to the date indicated on the
Adoption Agreement.
1.55 PRIOR VOLUNTARY EMPLOYEE CONTRIBUTIONS. The term Prior Voluntary
Employee Contributions means post-tax contributions made voluntarily
by an Employee prior to the date indicated on the Adoption Agreement.
1.56 QDRO. The term QDRO means a Qualified Domestic Relations Order as
determined in accordance with Code section 414(p) and regulations
thereunder.
1.57 QUALIFIED MATCHING CONTRIBUTIONS. The term Qualified Matching
Contributions means Matching Contributions which are subject to the
distribution and nonforfeitability requirements of Code section 401(k)
when made.
1.58 QUALIFIED NONELECTIVE CONTRIBUTIONS. The term Qualified Nonelective
Contributions means Nonelective Contributions made by the Employer and
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allocated to Participants' accounts that the Participants may not
elect to receive in cash until distributed from the plan; that are
nonforfeitable when made; and that are distributable only in
accordance with the distribution provisions that are applicable to
Elective Deferral Contributions and Qualified Matching Contributions.
1.59 QVEC CONTRIBUTIONS. The term QVEC Contributions means voluntary
amounts contributed by the Participant prior to January 1, 1987, which
the Participant designated in writing were eligible for a tax
deduction under Code section 219(a).
QVEC Contributions will be maintained in a separate account, which
will be nonforfeitable (i.e., 100% vested) at all times. The account
will share in the gains and losses under the Plan in the same manner
as described in Section 5A.3 of the Plan.
1.60 REQUIRED EMPLOYEE CONTRIBUTIONS. The term Required Employee
Contributions means Employee post-tax contributions that the Employer
requires either as a condition of participation or for receipt of an
Employer contribution.
1.61 ROLLOVER CONTRIBUTION. The term Rollover Contribution means an amount
representing all or part of a distribution from a pension or profit
sharing plan meeting the requirements of Code section 401(a), which is
eligible for rollover to this Plan in accordance with the requirements
set forth in Code section 402 (including Direct Rollovers) or Code
section 408(d)(3), whichever is applicable.
1.62 SALARY DEFERRAL AGREEMENT. The term Salary Deferral Agreement means an
agreement between a Participant and the Employer to defer receipt of a
portion of the Participant's Compensation by making Elective Deferral
Contributions to the Plan.
1.63 SELF-EMPLOYED INDIVIDUAL. The term Self-Employed Individual means 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 Earned Income but for the fact that the trade or business
had no net profits for the taxable year.
1.64 SERIOUS FINANCIAL HARDSHIP. The term Serious Financial Hardship means
an immediate and heavy financial need of the Participant where such
Participant lacks the available resources to meet the hardship. The
Plan Administrator shall make a determination of whether a Serious
Financial Hardship exists in accordance with the applicable provisions
of Section 3E.
1.65 SHAREHOLDER-EMPLOYEE. The term Shareholder-Employee means an Employee
or officer of an electing small business S corporation who owns (or is
considered as owning within the meaning of Code section 318(a)(1)), on
any day during the taxable year of such corporation, more than 5% of
the outstanding stock of the corporation.
1.66 SOCIAL SECURITY INTEGRATION LEVEL. The term Social Security
Integration Level means the Social Security Taxable Wage Base or such
lesser amount specified by the Employer in the Adoption Agreement. If
the Social Security Taxable Wage Base is amended, the Social Security
Integration Level will be deemed to have been amended.
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1.67 SOCIAL SECURITY TAXABLE WAGE BASE. The term Social Security Taxable
Wage Base means the contribution and benefit base in effect under
section 230 of the Social Security Act at the beginning of the Plan
Year.
1.68 SPONSORING ORGANIZATION. The term Sponsoring Organization means
Connecticut General Life Insurance Company, a legal reserve life
insurance company of Hartford, Connecticut.
1.69 SPOUSE. The term Spouse means the lawful wife of a male Participant,
or the lawful husband of a female Participant. However, a former
Spouse will be treated as the Spouse or surviving Spouse and a current
Spouse will not be treated as the Spouse or surviving Spouse to the
extent provided under a QDRO.
1.70 STRAIGHT LIFE ANNUITY. The term Straight Life Annuity means an annuity
payable in equal installments for the life of the Participant, and
that terminates upon the Participant's death.
1.71 TERMINATION OF EMPLOYMENT. The term Termination of Employment means a
severance of the Employer-Employee relationship which occurs prior to
a Participant's Normal Retirement Age for any reason other than Early
Retirement, Disability, or death.
1.72 TRUE-UP CONTRIBUTIONS. The term True-Up Contributions means Additional
Matching Contributions made to the Plan by the Employer so that total
Matching Contributions for each Participant are calculated on an
annual basis rather than on the basis selected by the Employer in the
Adoption Agreement.
1.73 TRUST. The term Trust means the Trust Agreement if the Employer
specifies in the Adoption Agreement that the Plan is Trusteed. The
Trust Agreement is entered into by the Employer, the Plan
Administrator and the Trustee by completing and signing the Adoption
Agreement, which Trust Agreement forms a part of, and implements the
provisions of the Plan as it applies to the Employer. If the Employer
specifies in the Adoption Agreement that the Plan is Non-Trusteed,
then the terms and provisions of this Plan relating to the Trust shall
be of no force and effect.
1.74 TRUSTEE. The term Trustee means the trustee(s) designated by the
Employer in its Adoption Agreement, if applicable, and any
successor(s) thereto.
1.75 VESTED INTEREST. The term Vested Interest means the nonforfeitable
right to an immediate or deferred benefit on any date in the amount
which is equal to the sum of (a), (b) and (c) below:
(a) The value on that date of that portion of the Participant's
Account that is attributable to and derived from Employee
Contributions, if any;
(b) The value on that date of the portion of the Participant's
Account attributable to Elective Deferral Contributions, if any;
Qualified Nonelective Contributions, if any; QVEC Contributions,
if any; Rollover Contributions, if any; and Qualified Matching
Contributions, if any;
(c) The value on that date of that portion of the Participant's
Account that is attributable to and derived from contributions
made by the Employer (and Forfeitures, if any), multiplied by his
Vesting Percentage determined on the date applicable.
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Employer contributions described in subsection (c), plus the
earnings thereon, shall be, at any relevant time, a part of the
Participant's Vested Interest equal to an amount ("X") determined
by the following formula:
X = P (AB + D) - D
For purposes of applying this formula:
P = The Participant's Vesting Percentage at the relevant time.
AB = The account balance attributable to such contributions,
plus the earnings thereon, at the relevant time.
D = The amount of any distribution.
1.76 VESTING PERCENTAGE. The term Vesting Percentage means the
Participant's nonforfeitable interest in Money Purchase Pension
Contributions, Matching Contributions, Nonelective Contributions, or
Prior Employer Contributions credited to his Participant's Account,
plus any income and minus any loss thereon. The Vesting Percentage for
each such Employer contribution is computed in accordance with one of
the schedules listed below, based on Years of Service with the
Employer, as specified by the Employer in its Adoption Agreement:
(a) 100% full and immediate;
(b) 100% after 3 Years of Service;
(c) 20% per Year of Service, 100% at S Years of Service;
(d) 20% after 3 Years of Service, 20% per Year of Service
thereafter, 100% at 7 Years of Service;
(e) 20% after 2 Years of Service, 20% per Year of Service
thereafter, 100% at 6 Years of Service;
(f) 100% after 5 Years of Service; (g)25% after 1 Year of
Service, 100% after 4 Years of Service; (h) Other.
However, if a Participant dies prior to attaining his Normal
Retirement Age, his Vesting Percentage shall be 100%.
1.77 VOLUNTARY EMPLOYEE CONTRIBUTIONS. The term Voluntary Employee
Contributions means post-tax contributions made voluntarily by an
Employee.
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ARTICLE II - GENERAL PROVISIONS
2A. SERVICE
2A.1 SERVICE. The term Service means active employment with the Employer as
an Employee.
2A.2 ABSENCE FROM EMPLOYMENT. Absence from employment on account of a leave
of absence authorized by the Employer pursuant to the Employer's
established leave-policy will be counted as employment with the
Employer provided that such leave of absence is of not more than two
years' duration. Absence from employment on account of active duty
with the Armed Forces of the United States will be counted as
employment with the Employer. If the Employee does not return to
active employment with the Employer, his Service will be deemed to
have ceased on the date the Plan Administrator receives notice that
the Employee will not return. The Employer's leave policy shall be
applied in a uniform and nondiscriminatory manner to all Participants
under similar circumstances.
For purposes of determining an Employee's eligibility and vesting
status for periods while the Employee is absent from work for reasons
covered under the Family and Medical Leave Act, Service will be
credited in accordance with and to the extent required by the
provisions of the Family and Medical Leave Act.
IF THE EMPLOYER HAS ELECTED IN THE ADOPTION AGREEMENT TO DETERMINE SERVICE
BASED UPON 1,000 HOURS, THEN THE FOLLOWING SECTIONS 2A.3 THROUGH 2A.8 SHALL
APPLY.
2A.3 HOUR OF SERVICE. The term Hour of Service means:
(a) Each hour for which an Employee is directly or indirectly paid,
or entitled to payment, by the Employer for the performance of
duties. These hours shall be credited to the Employee for the
Computation Period or Periods, as defined in Section 2A.5, in
which the duties were performed; and
(b) Each hour for which an Employee is paid or entitled to payment,
by the Employer on account of a period of time during which no
duties are performed (irrespective of whether the employment
relationship has terminated) due to vacation, holiday, illness,
incapacity (including disability), layoff, jury duty, military
duty or leave of absence. No more than 501 Hours of Service will
be credited under this paragraph for a single Computation Period
(whether or not the period occurs in a single Computation
Period). Hours under this paragraph will be calculated and
credited pursuant to section 2530.200b-2 of the Department of
Labor regulations which are incorporated herein by this
reference; and
(c) Each hour for which back pay, irrespective of mitigation of
damages, has been either awarded or agreed to by the Employer.
The same Hours of Service will not be credited under subsection
(a) or subsection (b), as the case may be, and under this
subsection (c). These hours shall be credited to the Employee for
the Computation Period or periods to which the award or agreement
pertains rather than the Computation Period in which the award,
agreement or payment is made; and Hours of Service will be
credited for employment with other members of an affiliated
service group (under Code section 414(m)), a controlled group of
corporations (under Code section 414(b)), or a group of trades or
businesses under common
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control (under Code section 414(c)), of which the adopting
Employer is a member, and any other entity required to be
aggregated with the Employer pursuant to Code section 414(o).
Hours of Service will also be credited for any individual considered
an Employee for purposes of this Plan under Code sections 414(n) or
414(o).
Solely for purposes of determining whether a 1-Year Break-in-Service,
as defined in Section 2A.4, 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, eight (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.
Service shall be determined on the basis of the method selected in the
Adoption Agreement.
2A.4 1-YEAR BREAK-IN-SERVICE. The term 1-Year Break-in-Service means any
Computation Period during which an Employee fails to complete more
than 500 Hours of Service.
2A.5 YEAR(S) OF SERVICE. The term Year(s) of Service means a 1
2-consecutive month period ("Computation Period") during which an
Employee has completed at least 1,000 Hours of Service.
(a) Eligibility Computation Period. For purposes of determining Years
of Service and Breaks-in-Service for eligibility, the
12-consecutive month period shall begin with the date on which
the Employee first performs an Hour of Service for the Employer
and, where additional periods are necessary, succeeding
anniversaries of his employment commencement date. The employment
commencement date is the date on which the Employee first
performs an Hour of Service for the Employer maintaining the
Plan.
(b) Vesting Computation Period. As elected by the Employer in the
Adoption Agreement, for computing Years of Service and
Breaks-in-Service for vesting, the 12-consecutive month period:
(1) Shall be the Plan Year; or
(2) Shall begin with the date on which the Employee first
performs an Hour of Service for the Employer and, where
additional periods are necessary, succeeding anniversaries
of that date.
However, active participation as of the last day of the Plan Year
is not required in order for a Participant to be credited with a
Year of Service for vesting purposes.
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(c) Contribution Computation Period. If the Employer specifies an
annual Contribution Period in its Adoption Agreement for the
purpose of determining a Participant's eligibility to receive a
contribution, the 12-consecutive month period shall be any Plan
Year during which the Participant is credited with at least 1,000
Hours of Service. However, when an Employee first becomes a
Participant or resumes active participation in the Plan following
a 1-Year Break-in-Service on a date other than the first day of
the Plan Year, all Hours of Service credited to the Participant
during that Plan Year, including those Hours credited prior to
the date the Employee enrolls (or reenrolls) as an Participant in
the Plan shall be counted. Furthermore, the Employer may require
in its Adoption Agreement that a Participant be a Participant as
of the last day of the Plan Year in order to be eligible to
receive a contribution for a Plan Year.
(d) If in its Adoption Agreement the Employer permits Early
Retirement, the 12-consecutive month period for determining Early
Retirement shall be the Plan Year. However, active participation
as of the last day of the Plan Year is not required in order for
a Participant to be credited with a Year of Service.
Service with a predecessor organization of the Employer shall be
treated as Service with the Employer for the purposes of subsections
(a), (b) and (d) above in any case in which the Employer maintains the
plan of such predecessor organization. In addition, if elected by the
Employer in the Adoption Agreement, service with a predecessor
organization of the Employer shall be treated as Service with the
Employer, even if the Employer does not maintain the plan of such
predecessor organization.
If elected in the Adoption Agreement, service with a subsidiary or
affiliate of the Employer that is not related to the Employer under
the provisions of Code sections 414(b),-(c) or (m) shall be treated as
Service with the Employer for purposes of (a), (b) and (d) above.
2A.6 DETERMINING VESTING PERCENTAGE. Vesting credit shall be given for each
Year of Service except those periods specifically excluded in the
Adoption Agreement.
If a Participant completes less than 1,000 Hours of Service during a
Plan Year while remaining in the service of the Employer, his Vesting
Percentage shall not be increased for such Plan Year. However, at such
time as the Participant again completes at least 1,000 Hours of
Service in any subsequent Plan Year, his Vesting Percentage shall then
take into account all Years of Service with the Employer except those
specifically excluded in the Adoption Agreement.
If an individual who ceases to be an Employee and is subsequently
rehired as an Employee enrolls (or reenrolls) in the Plan, upon his
participation (or reparticipation) his Vesting Percentage shall then
take into account all Years of Service except those specifically
excluded in the Adoption Agreement.
In the case of a Participant who has ~ consecutive 1-Year
Breaks-in-Service, all Years of Service after such Breaks-in-Service
will be disregarded for the purpose of vesting the Employer-derived
account balance that accrued before such breaks. However, both
pre-break and post-break Service will count for the purpose of vesting
the Employer-derived account balance that accrues after such
Breaks-in-Service. Both accounts will share in the earnings and losses
of the fund.
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<PAGE>
In the case of a Participant who does not have S-consecutive 1-Year
Breaks-in-Service, both the pre-break and post-break Service will
count in vesting both the pre-break and post-break Employer-derived
account balance.
2A.7 EXCLUDED YEARS OF SERVICE FOR VESTING. In determining the Vesting
Percentage of an Employee, all Years of Service with the Employer(s)
maintaining the Plan shall be taken into account, except that the
following periods may be excluded, as specified by the Employer in its
Adoption Agreement:
(a) Years of Service prior to the time a Participant attained age 18;
(b) Years of Service during which the Employer did not maintain the
Plan or a predecessor plan;
(c) Years of Service during a period for which the Employee made no
Required Employee Contributions;
(d) Years of Service prior to any 1-Year Break-in-Service, until the
Employee completes one Year of Service following such 1-Year
Break-in-Service.
(e) In the case of an Employee who has no Vested Interest in Employer
contributions, Years of Service before any period of consecutive
1-Year Breaks-in-Service if the number of such consecutive 1-Year
Breaks-in- Service equals or exceeds the greater of (i) 5, or
(ii) the total number of Years of Service before such break.
For the purposes of this Section, a predecessor plan shall mean a plan
of the Employer that was terminated within five years preceding or
following the Effective Date of this Plan.
2A.8 CHANGE IN PLAN YEARS. If the Plan Year is changed, the following
special rules shall apply.
(a) Vesting Computation Periods. If the Vesting Computation Period is
the Plan Year, Years of Service and 1-Year Breaks-in-Service
shall be measured over two overlapping 12-consecutive month
periods. The first such period shall begin on the first day of
the last old Plan Year and the second such period shall begin on
the first day of the first new Plan Year, thereby creating an
overlap. All Hours of Service performed during the overlap period
must be counted in both Vesting Computation Periods. A
Participant who completes at least 1,000 Hours of Service during
each such period shall be credited with two Years of Service for
Vesting.
(b) Contribution Computation Periods. To determine a Participant's
eligibility to receive a contribution for a short Plan Year, the
1,000 Hours of Service requirement shall be prorated by
multiplying by a fraction, the numerator of which is the number
of full months in the short Plan Year and the denominator of
which is 12.
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<PAGE>
If the Employer has elected in the Adoption Agreement to determine Service
based upon Elapsed Time, then the following Sections 2A.9 and 2A.10 shall
apply.
2A.9 ELAPSED TIME. If the Employer has selected an eligibility requirement
in the Adoption Agreement that is or includes a fractional Year(s) of
Service requirement, the provisions of this Section shall apply.
(a) For purposes of determining an Employee's initial or continued
eligibility to participate in the Plan, or the Participant's
Vested Interest in Employer contributions, an Employee will
receive credit for the aggregate of all time period(s) commencing
with the Employee's first day of employment or reemployment and
ending on the date a Break-in-Service (as defined in this
Section) begins. The first day of employment or reemployment is
the first day the Employee performs an Hour of Service. An
Employee will also receive credit for any Period of Severance of
less than 12-consecutive months. Fractional periods of a year
will be expressed in terms of days.
(b) For purposes of this Section, "Hour of Service" shall mean each
hour for which an Employee is paid or entitled to payment for the
performance of duties for the Employer.
(c) For purposes of this Section, a "Break-in-Service" is a Period of
Severance of at least 12 consecutive months.
(d) A "Period of Severance" is a continuous period of time during
which the Employee is not employed by the Employer. Such period
begins on the date the Employee retires, quits or is discharged,
or if earlier, the 12-month anniversary of the date on which the
Employee was otherwise first absent from Service.
(e) In the case of an individual who is absent from work for
maternity or paternity reasons, the 12-consecutive month period
beginning on the first anniversary of the first day of such
absence shall not constitute a Break-in-Service. 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 the 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.
Each Employee will share in Employer contributions for the period
beginning on the date the Employee commences participation under
the Plan and ending on the date on which such Employee severs
employment with the Employer or is no longer a member of an
eligible class of Employees.
(f) If the Employer is a member of an affiliated service group (under
Code section 414(m)), a controlled group of corporations (under
Code section 414(b)), a group of trades or businesses under
common control (under Code section 414(c)) or any other entity
required to be aggregated with the Employer pursuant to Code
section 414(o), Service will be credited for any employment for
any period of time for any other member of such group. Service
will also be credited for any individual required under Code
section 414(n) or Code section 414(o) to be considered an
Employee of any Employer aggregated under Code sections 414(b),
(c), or (m) of such group.
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<PAGE>
2A.10 EXCLUDED PERIODS OF SERVICE FOR VESTING. In determining the Vesting
Percentage of an Employee, all Periods of Service with the Employer(s)
maintaining the Plan shall be taken into account, except that the
following periods may be excluded, as specified by the Employer in its
Adoption Agreement:
(a) Periods of Service prior to the time a Participant attained age
18;
(b) Periods of Service during which the Employer did not maintain the
Plan or a predecessor plan;
(c) Periods of Service during which the Employee made no Required
Employee Contributions;
(d) Periods of Service prior to any one-year Period of Severance,
until the Employee completes a one-year period of Service
following such Period of Severance;
(e) In the case of an Employee who has no Vested Interest in Employer
contributions, Periods of Service before any Period of Severance
if the number of consecutive one-year Periods of Severance equals
or exceeds the greater of (i) 5, or (ii) the total number of
one-year Periods of Service before such Period of Severance.
For the purposes of this Section, a predecessor plan shall mean a plan
of the Employer that was terminated within five years preceding or
following the Effective Date of this Plan.
2B. ELIGIBILITY, ENROLLMENT AND PARTICIPATION
2B.1 ELIGIBILITY. Each Employee shall be eligible to participate in the
Plan and receive an appropriate allocation of Employer contributions
as of the Entry Date following the day he meets the following
requirements, if any, specified by the Employer in its Adoption
Agreement, relating to:
(a) Required service;
(b) Minimum attained aged
(c) Job class requirements.
In addition to the eligibility conditions stated above, the Employer
may specify in the Adoption Agreement certain groups of Employees who
are not eligible to participate in the Plan.
Notwithstanding the foregoing, if the Employer's Plan as set forth
herein replaces or amends a preceding plan, then those Employees
participating under the Plan as written prior to such replacement or
amendment shall be eligible to be Participants hereunder without
regard to length of Service or minimum attained age otherwise required
herein.
2B.2 ENROLLMENT. Each eligible Employee may enroll as of his Entry Date by
completing and delivering to the plan Administrator an enrollment form
and, if applicable, a payroll deduction authorization and/or a Salary
Deferral Agreement.
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<PAGE>
2B.3 REEMPLOYED PARTICIPANT. In the case of an individual who ceases to be
an Employee and is subsequently rehired as an Employee, the following
provisions shall apply in determining eligibility to again participate
in the Plan:
(a) If the Employee had met the eligibility requirements as specified
in Section 2B.1, such Employee will become a Participant in the
Plan in accordance with Section 2B.2 as of the date he is
reemployed as an Employee.
(b) If the Employee had not formerly met the eligibility requirements
specified in Section 2B.1, such Employee will become a
Participant in the Plan after meeting the requirements of Section
2B.1 in accordance with Section 2B.2.
2B.4 ELIGIBLE CLASS. If a Participant becomes ineligible to participate
because he is no longer a member of an eligible class of Employees,
such Employee shall participate immediately upon his return 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.
If an Employee who is not a member of the eligible class of Employees
becomes a member of the eligible class, such Employee shall
participate immediately if such Employee has satisfied the minimum age
and Service requirements and would have previously become a
Participant had he been in the eligible class. If such Participant
incurs a Break-in-Service, eligibility will be determined under the
Break-in-Service rules of the Plan.
2B.5 WAIVER OF PARTICIPATION. Notwithstanding any provision of the Plan to
the contrary, if Required Employee Contributions are elected by the
Employer in the Adoption Agreement, any Employee in accordance with
the rules of the Plan may decline to become a Participant or cease to
be a Participant by filing a written waiver of participation with the
Plan Administrator in the manner prescribed. Such waiver must be filed
prior to the date such Employee is eligible to become a Participant,
or in the case of a current Participant, in the last month of the Plan
Year immediately preceding the Plan Year for which he wishes to cease
being a Participant.
Any Employee who files such a waiver shall not become a Participant,
or if a current Participant, shall elect to cease to be such as of the
first day of the succeeding Plan Year; and such Employee shall not
receive any additional Compensation or other sums by reason of his
waiver of participation.
Any such waiver may be rescinded by an Employee who is not a Partner
effective on the first day of the first Plan Year following one or
more plan Years commencing after the filing of such waiver in which he
was not a Participant, in which event he shall become a Participant,
or again become a Participant, as the case may be, effective as of
such date. A Partner may make a one-time irrevocable waiver of
participation upon the later of his commencement of employment with
the Employer or the date he is first eligible to participate in the
Plan.
No Employee who is eligible to participate in a standardized plan may
waive participation or voluntarily reduce his or her Compensation for
purposes of this Plan.
2B.6 TRADES OR BUSINESSES CONTROLLED BY OWNER-EMPLOYEES. If this Plan
provides contributions or benefits for one or more Owner-Employees who
control both the business for which this Plan is established and one
or more other trades or businesses, this Plan and any plans
established for other trades or businesses
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<PAGE>
must, when looked at as a single plan, satisfy Code sections 401(a)
and (d) for the Employees of this and all other trades or businesses.
If the Plan provides contributions or benefits for one or more
Owner-Employees who control one or more other trades or businesses,
the employees of the other trades or businesses must be included in a
plan which satisfies Code sections 401(a) and (d) and which provides
contributions and benefits not less favorable than those 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 he does not control 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 he does control must be as favorable as those ~ provided for him
under the most favorable plan of the trade or business which he does
not control.
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
the capital interest or the profits interest in the partnership.
For purposes of the preceding sentence, an Owner-Employee or two or
more Owner-Employees shall be treated as owning any interest in a
Partnership that 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.
2C. CONTRIBUTIONS AND ALLOCATIONS
2C.1 PROFIT SHARING/THRIFT PLAN WITH 401(k) FEATURE.
(a) Contributions - Employer.
For each Plan Year, as specified in the Adoption Agreement, the
Employer shall make one or more of the following contributions.
(1) Elective Deferral Contributions.
(2) Matching Contributions.
(3) Nonelective Contributions.
(b) Contributions - Participant.
For each Plan Year, as specified in the Adoption Agreement, each
Participant may make periodic Required Employee Contributions or
Voluntary Employee Contributions.
For Plans that contain a CODA, a Participant may elect to make a
Voluntary Employee Contribution in a lump sum Such lump sum
Voluntary Employee Contribution may be made (1) as of the
Effective Date, or (2) as elected by the Employer in the Adoption
Agreement. Voluntary Employee Contributions shall be subject to
the terms of Section 4B.
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<PAGE>
(c) Fail-Safe Contribution.
The Employer reserves the right to make a discretionary
Nonelective Contribution to the Plan for any Plan Year, if the
Employer determines that such a contribution is necessary to
ensure the Actual Deferral Percentage test or the Actual
Contribution Percentage test will be satisfied for that Plan
Year. Such amount shall be designated by the Employer at the time
of contribution as a Qualified Nonelective Contribution and shall
be known as a Fail-Safe Contribution.
The Fail-Safe Contribution shall be made on behalf of all
eligible non-Highly Compensated Employees who are Participants
and who are considered under the Actual Deferral Percentage test
or, if applicable, the Actual Contribution Percentage test, and
shall be allocated to the Participant's Account of each such
Participant in an amount equal to a fixed percentage of such
Participant's Compensation. The fixed percentage shall be equal
to the minimum fixed percentage necessary to be contributed by
the Employer on behalf of each eligible non-Highly Compensated
Employee who is a Participant so that the Actual Deferral
Percentage test or, if applicable, the Actual Contribution
Percentage test, is satisfied.
(d) Contributions - Changes.
For each Plan Year, a Participant may change the amount of his
Required Employee Contributions, Voluntary Employee
Contributions, or Elective Deferral Contributions as often as the
Plan Administrator allows (on a consistent and nondiscriminatory
basis), on certain dates prescribed by the Plan Administrator.
(e) Contributions - Timing.
(1) Elective Deferral Contributions shall be paid by the
Employer to the Trust or the Insurance Company, as elected
by the Employer in the Adoption Agreement, but never later
than 90 days following the date of deferral.
(2) Matching Contributions made on other than an annual basis
shall be paid to the Trust or Insurance Company, as elected
by the Employer in the Adoption Agreement. Matching
Contributions, including Additional Matching Contributions,
made on an annual basis shall be paid to the Trust or the
Insurance Company, as applicable, at the end of the Plan
Year, or as soon as possible on or after the last day of
such Plan Year, but in no event later than the date
prescribed by law for filing the Employer's income tax
return, including any extension thereof. To the extent that
Matching Contributions are used to purchase Life Insurance
Policies, then such contributions for any Plan Year may be
paid to the Trust when premiums for such Policies are due
during the Plan Year.
(3) Nonelective Contributions made on other than an annual basis
shall be paid to the Trust or Insurance Company, as
applicable, as elected by the Employer in the Adoption
Agreement. Nonelective Contributions made on an annual basis
shall be paid to the Trust or the Insurance Company, as
applicable, at the end of the Plan Year,
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or as soon as possible on or after the last day of such Elan
Year, but in any event not later than the date prescribed by
law for filing the Employer's income tax return, including
any extension thereof. To the extent that Nonelective
Contributions are used to purchase Life Insurance Policies,
then such contributions for any Plan Year may be paid to the
Trust when premiums for such Policies are due during the
Plan Year.
(4) Employee Contributions shall be transferred by the Employer
to the Trust or the Insurance Company, as elected by the
Employer in the Adoption Agreement, but never later than 90
days following the date such Contributions are made by the
Employee.
(5) The Fail-Safe Contribution for any plan Year as determined
above shall be paid to the Insurance Company at the end of
the Plan Year, or as soon as possible on or after the last
day of such Plan Year, but in no event later than the date
which is prescribed by law for filing the Employer's income
tax return, including any extensions thereof.
(f) Contributions - Allocations.
The allocation of Nonelective Contributions shall be made in
accordance with (1), (2), (3) or (4) below, as specified by the
Employer in the Adoption Agreement.
(1) Formula A: Compensation Ratio- Not Integrated with Social
Security.
The allocation to each Participant shall be made in the
proportion that the Compensation paid to each l~articipant
eligible to receive an allocation bears to the Compensation
paid to all Participants eligible to receive an allocation.
(2) Formula B: Integrated with Social Security - Step Rate
Method.
Base Contribution: An amount equal to a percentage (as
specified in the Adoption Agreement) of the Compensation of
each Participant up to the Social Security Integration
Level;
Excess Contribution: In addition, an amount equal to a
percentage (as specified in the Adoption Agreement) of the
Participant's Compensation which is in excess of the Social
Security Integration Level, subject to the Limitations on
Allocations in accordance with Section 4B. This Excess
Contribution percentage shall not exceed the lesser of:
(A) twice the Base Contribution or
(B) the Base Contribution plus the greater of:
(i) the old age insurance portion of the Old Age Survivor
Disability (OASDI) tax rate; or
(ii) S.7%.
If the Employer has elected in the Adoption Agreement to use
a Social Security Integration Level that in any plan Year is
the greater of $10,000 or 20% but less than 100% of the
Social Security Taxable
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<PAGE>
Wage Base, then the 5.7% limitation specified in
2C.1(f)(2)(B)(ii) shall be adjusted in accordance with the
following table:
If the Social Security Integration Level
Adjust
is more but not more 5.7% to
than than
the greater of $10,000 or 80% of the Social Security 4.3%
20% of the Social Security Taxable Wage Base
Taxable Wage
Base
80% of the Social Security 100% of the Social Security 5.4%
Taxable Wage Taxable Wage Base
Base
In the case of any Participant who has exceeded the
Cumulative Permitted Disparity Limit described in Section
2C. 1 (g), Nonelective Contributions shall be allocated in
an amount equal to the Excess Contribution percentage of two
times such Participant's total Compensation for the Plan
Year.
Any remaining Nonelective Contributions or Forfeitures will
be allocated to each Participant's Account in the ratio that
each Participant's total Compensation for the Plan Year
bears to all Participants' total Compensation for that plan
Year.
(3) Formula B: Integrated with Social Security - Maximum
Disparity Method.
Subject to the Limitations on Allocations specified in
Section 4B, for each Plan Year the allocation to each
Participant shall be made in accordance with the following:
(A) An amount equal to S.7% of the sum of each
Participant's total Compensation plus Compensation that
is in excess of the Social Security Integration Level
shall be allocated to each Participant's Account. If
the Employer does not contribute such amount for all
Participants, an amount shall be allocated to each
Participant's Account equal to the same proportion that
each Participant's total Compensation plus Compensation
that is in excess of the Social Security Integration
Level bears to the total Compensation plus Compensation
in excess of the Social Security Integration Level of
all Participants in the Plan. In the case of any
Participant who has exceeded the Cumulative Permitted
Disparity Limit described in Section 2C. 1 (g), two
times such Participant's total Compensation for the
Plan Year will be taken into account.
If the Employer has elected in the Adoption Agreement
to use a Social Security Integration Level that in any
Plan Year is the greater of $10,000 or 20% but less
than 100% of the Social Security Taxable Wage Base,
then the 5.7% limitation specified in this subsection
shall be ad lusted in accordance with the following
table:
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<PAGE>
If the Social Security Integration Level
Adjust
is more but not more 5.7% to
than than
the greater of $10,000 or 80% of the Social Security 4.3%
20% of the Social Security Taxable Wage Base
Taxable Wage
Base
80% of the Social Security 100% of the Social Security 5.4%
Taxable Wage Taxable Wage Base
Base
(B) The balance of the Nonelective Contribution (if any),
shall be allocated to the Participant's Account in the
proportion that each Participant's Compensation bears
to the total Compensation of all Participants.
(4) Formula C: Flat Dollar Amount.
The allocation to each Participant shall be a flat dollar
amount as elected by the Employer in the Adoption Agreement
Formula C may not be elected under a standardized plan.
(g) Allocation Requirements.
Employer contributions shall be allocated to the accounts of
Participants in accordance with the allocation requirement as
specified by the Employer in its Adoption Agreement. If the
Employer has adopted a standardized plan, the allocation of any
nonannual contribution made by the Employer shall be made to each
Participant who is a Participant on any day of the Contribution
Period regardless of Hours of Service.
Annual Overall Permitted Disparity Limit. Notwithstanding the
preceding paragraph, for any Plan Year this Plan benefits any
l'articipant who benefits under another qualified plan or
simplified employee pension plan, as defined in Code section
408(k), maintained by the Employer that provides for permitted
disparity (or imputes disparity), Employer contributions and
Forfeitures will be allocated to the account of each Participant
who either completes more than 500 Hours of Service during the
Plan Year or who is employed as of the last day of the Plan Year
in the ratio that such Participant's total Compensation bears to
the total Compensation of all Participants.
Cumulative Permitted Disparity Limit. Effective for Plan Years
beginning on or afterlanuary 1, 1995, the Cumulative Permitted
Disparity Limit for a Participant is 35 total cumulative
permitted disparity years. Total cumulative permitted years mean
the number of years credited to the Participant for allocation or
accrual purposes under this Plan, any other qualified plan or
simplified employee pension plan (whether or not terminated) ever
maintained by the Employer. For purposes of determining the
Participant's Cumulative Permitted Disparity Limit, all years
ending in the same calendar year are treated as the same year. If
the Participant has not benefitted under a defined benefit or
target benefit plan for any year beginning on or after January I,
1994, the Participant has no Cumulative Permitted Disparity
Limit.
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<PAGE>
(h) Forfeitures.
Forfeitures will be used in the manner elected in the Adoption
Agreement as follows:
(1) To reduce Employer contributions or pay Plan expenses; or
(2) Allocated in accordance with the allocation formula elected
in the Adoption Agreement; or
(3) First, to reduce Employer contributions or pay Plan
expenses, with any remaining Forfeitures allocated in
accordance with the allocation formula elected in the
Adoption Agreement.
(i) Expenses.
The Employer may contribute to the Plan the amount necessary to
pay any reasonable expenses of administering the Plan. In lieu of
the Employer contributing the amount necessary to pay such
charges, these expenses may be paid from Plan assets.
(j) Special Rules - Elective Deferral Contributions.
(1) Each Participant may elect to defer his Compensation in an
amount specified in the Adoption Agreement, sub sect to the
limitations of this Section. A Salary Deferral Agreement (or
modification of an earlier Salary Deferral Agreement) may
not be made with respect to Compensation which is currently
available on or before the date the Participant executed
such election, or if later, the later of the date the
Employer adopts this CODA, or the date such arrangement
first becomes effective. Any elections made pursuant to this
Section shall become effective as soon as administratively
feasible.
(2) If elected by the Employer in the Adoption Agreement, each
Participant may elect to defer and have allocated for a lean
Year all or a portion of any cash bonus paid during the Plan
Year. A deferral election may not be made with respect to
cash bonuses which are currently available on or before the
date the Participant executed such election.
(3) Elective Deferral Contributions will be allocated to the
Participant's Account and shall be 100 percent vested and
nonforfeitable at all times.
(4) During any taxable year, no Participant shall be permitted
to have Elective Deferral Contributions made under this
loan, or any other qualified plan maintained by the
Employer, in excess of the dollar limitation contained in
Code section 402(g) in effect at the beginning of such
taxable year. If a Participant takes a withdrawal of
Elective Deferral Contributions due to a serious financial
hardship, as provided in Section 3E.S, his Elective Deferral
Contributions for his taxable year immediately following the
taxable year of such distribution may not exceed the Code
section 402(g) limit for such taxable year less the amount
of Elective Deferral Contributions made for the Participant
in the taxable year of the distribution.
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<PAGE>
(5) Elective Deferral Contributions that are not in excess of
the limits described in subsection (4) above shall be sub
ject to the Limitations on Allocations in accordance with
Section 4B.
Elective Deferral Contributions that are in excess of the
limits described in (4) above shall also be subject to the
Section 4B limitations, as further provided in Section 4C.2.
(6) An Employee's eligibility to make Elective Deferral
Contributions under a CODA may not be conditioned upon the
completion of more than one (1) Year-of-Service or the
attainment of more than age twenty-one (21).
(7) A Participant may modify the amount of Elective Deferral
Contributions such Participant makes to the Plan as often as
the Plan Administrator allows, as specified in the Adoption
Agreement, but in no event not less frequently than once per
calendar year. Such modification may be made by filing a
written notice with the Plan Administrator within the time
period prescribed by the Plan Administrator.
(k) Suspension of Contributions.
(1) Elective Deferral Contributions. The following provisions
shall apply with respect to suspension of Elective Deferral
Contributions.
(A) Voluntary Suspension. A Participant may elect to
suspend his Salary Deferral Agreement for Elective
Deferral Contributions by filing a written notice
thereof with the Plan Administrator. Such Contributions
shall be suspended on the date specified in such
notice, which date must be at least 15 days after such
notice is filed. The notice shall specify the period
for which such suspension shall be effective.
(B) Suspension for Leave. A Participant who is absent from
employment on account of an authorized unpaid leave of
absence or military leave shall have his Salary
Deferral Agreement suspended during such leave. Such
suspension of contributions shall be effective on the
date payment of Compensation by the Employer to him
ceases, and shall remain in effect until payment of
Compensation resumes.
(C) Withdrawal Suspension. A Participant who elects a
withdrawal in accordance with Section BE may have his
Elective Deferral Contributions suspended on the date
such election becomes effective. Such suspension shall
remain in effect for the number of months specified
therein.
(D) Non-Elective Suspension. A Participant who ceases to
meet the eligibility requirements as specified in
Section 2B.I but who remains in the employ of the
Employer shall have his Elective Deferral Contributions
suspended, effective as of the date he ceases to meet
the eligibility requirements. Such suspension shall
remain in effect until he again meets such eligibility
requirements.
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The Participant may elect to reactivate his Salary
Deferral Agreement for Elective Deferral Contributions
by filing a written notice thereof with the Plan
Administrator. The Salary Deferral Agreement shall be
reactivated following the expiration of the suspension
period described above.
(2) Required Employee Contributions. The following provisions shall
apply with respect to suspension of Required Employee
Contributions by Participants. In the event that a Participant
suspends his Required Employee Contributions, he shall
automatically have his Voluntary Employee Contributions suspended
for the same period of time.
(A) Voluntary Suspension. A Participant may elect to suspend his
payroll deduction authorization for his Required Employee
Contributions by filing a written notice thereof with the
Plan Administrator. Such notice shall be effective, and his
applicable contributions shall be suspended, on the date
specified in such notice, which date must be at least 15
days after such notice is filed. The notice shall specify
the period for which such suspension shall be effective.
Such period must be a minimum of one month and may extend
indefinitely.
(B) Suspension for Leave. A Participant who is absent from
employment on account of an authorized unpaid leave of
absence or military leave shall have his payroll deduction
authorization for Required Employee Contributions suspended
during such leave. Such suspension of contributions shall be
effective on the date payment of Compensation by the
Employer to him ceases, and shall remain in effect until
payment of Compensation resumes.
(C) Withdrawal Suspension. A Participant who elects a withdrawal
in accordance with Section BE may have his Required Employee
Contributions suspended on the date such election becomes
effective. Such suspension shall remain in effect for the
number of months specified under the provisions of Section
BE.
(D) Involuntary Suspension. A Participant who ceases to meet the
eligibility requirements as specified in Section 2B.1 but
who remains in the employ of the Employer shall have his
Required Employee Contributions suspended, effective as of
the date he ceases to meet the eligibility requirements.
Such suspension shall remain in effect until he again meets
such eligibility requirements.
The Participant may elect to reactivate his payroll deduction
authorization by filing a written notice thereof with the Plan
Administrator. The payroll deduction authorization shall be
reactivated following the expiration of the suspension period
described above.
(3) Voluntary Employee Contributions. The following provisions apply
with respect to suspension of Voluntary Employee Contributions by
Participants.
(A) Voluntary Suspension. A Participant may elect to suspend his
payroll deduction authorization for his Voluntary Employee
Contributions by filing a written notice thereof with the
Plan Administrator. Such notice shall be effective, and his
applicable
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contributions shall be suspended, on the date specified in
such notice, which date must be at least 15 days after such
notice is filed. The notice shall specify the period for
which such suspension shall be effective.
(B) Suspension for Leave. A Participant who is absent from
employment on account of an authorized unpaid leave of
absence or military leave shall have his payroll deduction
order for Voluntary Employee Contributions suspended during
such leave. Such suspension of contributions shall be
effective on the date payment of Compensation by the
Employer to him ceases, and shall remain in effect until
payment of Compensation resumes.
(C) Withdrawal Suspension. A Participant who elects a withdrawal
in accordance with Section BE may have his Voluntary
Employee Contributions suspended on the date such election
becomes effective. Such suspension shall remain in effect
for the number of months specified therein.
(D) Involuntary Suspension. A Participant who ceases to meet the
eligibility requirements as specified in Section 2B.1 but
who remains in the employ of the Employer shall have his
Voluntary Employee Contributions suspended, effective as of
the date he ceases to meet the eligibility requirements.
Such suspension shall remain in effect until he again meets
such eligibility requirements.
The Participant may elect to reactivate his payroll deduction
authorization by filing a written notice thereof with the Plan
Administrator. The payroll deduction authorization shall be
reactivated following the expiration of the suspension period
described above.
2C.2 MONEY PURCHASE PENSION PLAN.
(a) Contributions - Employer. As specified in the Adoption Agreement,
the Employer shall contribute an amount equal to a fixed
percentage of each Participant's Compensation, a flat dollar
amount, or an amount integrated with Social Security in
accordance with (1), (2) or (3) below:
(1) Formula A: Not Integrated with Social Security. An amount
equal to a percentage from 1% to 25% of the Compensation of
each Participant, as elected by the Employer in the Adoption
Agreement, subject to the Limitations on Allocations in
accordance with Section 4B.
(2) Formula B: Flat Dollar Amount. An amount, as elected by the
Employer in the Adoption Agreement. Formula B may not be
elected under a standardized plan.
(3) Formula C: Integrated with Social Security.
Base Contribution: An amount equal to a percentage (as
specified in the Adoption Agreement) of Compensation of each
Participant up to the Social Security Integration Level;
Excess Contribution: In addition, an amount equal to a
percentage (as specified in the Adoption Agreement) of the
Participant's Compensation which is in excess of the Social
Security Integration
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Level, subject to the Limitations on Allocations in
accordance with Section 4B. This Excess Contribution
percentage shall not exceed the lesser of:
(A) twice the Base Contribution or
(B) the Base Contribution
plus the greater of:
(i) old age insurance portion of the Old Age Survivor
Disability (OASDI) tax rate; or
(ii) 5. 7%.
If the Employer has elected in the Adoption Agreement to use
a Social Security Integration Level that in any Plan Year is
the greater of $10,000 or 20% but less than 100% of the
Social Security Taxable Wage Base, then the 5.7% limitation
specified in 2C.2(a)(3)(B)(ii) shall be adjusted in
accordance with the following table:
If the Social Security Integration Level
Adjust
is more but not more 5.7% to
than than
the greater of $10,000 or 80% of the Social Security 4.3%
20% of the Social Security Taxable Wage Base
Taxable Wage
Base
80% of the Social Security 100% of the Social Security 5.4%
Taxable Wage Taxable Wage Base
Base
However, in the case of any Participant who has exceeded the
Cumulative Permitted Disparity Limit described below, the
Employer will contribute for each Participant who either
completes more than 500 Hours of Service during the Plan
Year or is employed on the last day of the Plan Year, an
amount equal to the Excess Contribution percentage
multiplied by the Participant's total Compensation.
Annual Overall Permitted Disparity Limit. Notwithstanding the
preceding provisions of this Section 2C.2(a), for any Plan Year
this Illan benefits any Participant who benefits under another
qualified plan or simplified employee pension plan, as defined in
Code section 408(k), maintained by the Employer that provides for
permitted disparity (or imputes disparity), Employer
contributions and Forfeitures will be allocated to the account of
each Participant who either completes more than 500 Hours of
Service during the Plan Year or who is employed as of the last
day of the Plan Year in the ratio that such Participants total
Compensation bears to the total Compensation of all Participants.
Cumulative Permitted Disparity Limit. Effective for Plan Years
beginning on or after.1anuary 1, 199S, the Cumulative permitted
Disparity Limit for a Participant is 35 total cumulative
permitted disparity years. Total cumulative permitted years mean
the number of years credited to the Participant for allocation or
accrual purposes under this Plan, any other qualified plan or
simplified employee pension plan (whether or not terminated) ever
maintained by the Employer. For purposes of
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determining the Participant's Cumulative Permitted Disparity
Limit, all years ending in the same calendar year are treated as
the same year. If the Participant has not benefitted under a
defined benefit or target benefit plan for any year beginning on
or after January 1, 1994, the Participant has no Cumulative
Permitted Disparity Limit.
(b) Contributions - Participant.
The Plan Administrator will not accept Required Employee
Contributions or Voluntary Employee Contributions that are made
for Plan Years beginning after the Plan Year in which this
document is being adopted by the Employer. Required Employee
Contributions and Voluntary Employee Contributions for Plan Years
beginning after December 31, 1986, but before the Plan Year in
which this document is adopted, will be limited so as to meet the
nondiscrimination test of Code section 40l(m) as provided in
Section 4A.4.
(c) Contributions - Timing.
Contributions made on other than an annual basis shall be paid to
the Trust or Insurance Company, as applicable, not less
frequently than monthly or every four weeks. Contributions made
on an annual basis shall be paid to the Trust or the Insurance
Company, as applicable, at the end of the Plan Year, or as soon
as possible on or after the last day of such Plan Year, but in
any event not later than the date prescribed by law for filing
the Employer's income tax return, including any extension
thereof. To the extent that contributions are used to purchase
Life Insurance Policies, such contributions for any Plan Year may
be paid to the Trust when premiums for such Policies are due
during the Plan Year.
(d) Contributions - Allocation.
Employer Contributions shall be allocated to the Participants'
Account in accordance with the allocation requirements as
specified by the Employer in the Adoption Agreement. If the
Employer has adopted a standardized plan, the allocation of any
nonannual contribution made by the Employer shall be made for
each Participant who is a Participant on any day of the
Contribution Period regardless of Hours of Service.
(e) Forfeitures.
Forfeitures will be used in the manner elected in the Adoption
Agreement as follows:
(1) To reduce Employer contributions or pay Plan expenses; or
(2) Allocated in the same manner elected in the Adoption
Agreement for the allocation of Employer contributions; or
(3) First, to reduce Employer contributions or pay plan
expenses, with any remaining Forfeitures allocated in the
same manner elected in the Adoption Agreement for the
allocation of Employer contributions.
(f) Expenses.
The Employer may contribute to the plan the amount necessary to
pay any applicable expense charges and administration charges. In
lieu of the
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Employer contributing the amount necessary to pay such charges,
these expenses may be paid from lean assets.
2C.3 ROLLOVER CONTRIBUTIONS.
If elected by the Employer in the Adoption Agreement, and without
regard to the limitations imposed under Section 4B, the Plan may
receive Rollover Contributions on behalf of an Employee, if the
Employee is so entitled under Code sections 402(c), 403(a)(4), or
408(d)(3)(A). Contributions may be rolled over either directly or
indirectly, in the form of cash, and may be all or a portion of the
funds eligible for rollover. Receipt of Rollover Contributions shall
be subject to the approval of the Plan Administrator. Before approving
the receipt of a Rollover Contribution, the Plan Administrator may
request any documents or other information from an Employee or
opinions of counsel which the Plan Administrator deems necessary to
establish that such amount is a Rollover Contribution.
If Rollover Contributions are elected by the Employer in the Adoption
Agreement, they may be received from an Employee who is not otherwise
eligible to participate in the Plane Rollover Contributions may be
withdrawn by such Employee pursuant to the provisions of the Adoption
Agreement and Section BE. In addition, such Employee may direct the
investment and transfer of amounts in his Participant's Account
pursuant to the terms of Section 5A. Upon Termination of Employment,
such Employee shall be entitled to a distribution of his Participant's
Account.
2C.4 CONTRIBUTIONS SUBJECT TO DAVIS-BACON ACT.
If the Employer designates under the Adoption Agreement that Employer
contributions are to be made in different amounts for different
contracts sub ject to the Davis-Bacon Act or other Prevailing Wage
Law, the Employer shall file with the Plan Administrator an
irrevocable written designation for each Prevailing Wage Law project,
stating the hourly contribution rate to be contributed to the Plan by
the Employer for each class of Employees working on the pro ject in
order to comply with the Prevailing Wage Law applicable to the
project. The contribution rate designation shall be irrevocable with
respect to work on that project, although the hourly contribution rate
may be increased prospectively by the filing of a new written
contribution rate designation with the Plan Administrator.
2C.5 QVEC CONTRIBUTIONS.
The Plan Administrator will not accept QVEC 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 that will be nonforfeitable at all times. The account will
share in the gains and losses under the Plan in the same manner as
described in Section 5A.3 of the Plan. No part of the QVEC
Contributions portion of the Participant's Account will be used to
purchase Life Insurance Policies. No part of the QVEC Contributions
portion of the Participant's Account will be available for loans.
Subject to Section 3C, Joint and Survivor Annuity Requirements (if
applicable), the Participant may withdraw any part of his QVEC
Contributions by making a written application to the Plan
Administrator.
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<PAGE>
ARTICLE III - DISTRIBUTIONS
3A. TIMING AND FORM OF BENEFITS
3A.1 PAYMENT OF BENEFITS. The rules and procedures for electing the timing
and form of distribution effective for each Participant or Beneficiary
shall be formulated and administered by the Plan Administrator in a
consistent manner for all Participants in similar circumstances. For
money purchase and target benefit plans, the normal form of
distribution shall be a Life Annuity. For a profit sharing plan, the
normal form of distribution shall be cash. For any plan, the
distribution shall be made within an administratively reasonable time
following the date the application for distribution is filed with the
Plan Administrator.
If elected by the Employer in the Adoption Agreement, a Participant,
or his Beneficiary as the case may be, may elect to receive
distribution of all or a portion of his Vested Interest in one or a
combination of the following forms of payment:
(a) Single sum cash payment;
(b) Life Annuity;
(c) Installment Payments (i.e., a series of periodic single-sum cash
payments over time, with no life contingency);
(d) Installment Refund Annuity (i.e., an Annuity that provides for
fixed monthly payments for a period certain of not less than 3
nor more than 15 years. If a Participant dies before the period
certain expires, the Annuity will be paid to the l?articipant's
Beneficiary for the remainder of the period certain. The period
certain shall be chosen by the Participant at the time the
Annuity is purchased with the Participant's Vested Interest. The
Installment Refund Annuity is not a Life Annuity and in no event
shall the period certain extend to a period which equals or
exceeds the life expectancy of the Participant);
(e) Employer stock, to the extent the Participant is invested
therein.
All distributions are subject to the provisions of Section 3C, Joint
and Survivor Annuity Requirements.
If the value of a Participant's Vested Interest has never exceeded
$3,500 at anytime, the Employer shall indicate in the Adoption
Agreement whether a distribution shall be made in the form of a single
sum cash payment upon such Participant's Termination of Employment and
may not be deferred or the Participant may elect to defer distribution
until the April 1 following the calendar year in which he reaches age
70-1/2. If the Employer permits participants to defer such
distributions, failure to make an election will be deemed to be an
election to defer to the April 1 following the calendar year in which
the Participant reaches age 70-1/2.
If the Participant's Vested Interest exceeds (or at the time of any
prior distribution exceeded) $3,500, and such amount is immediately
distributable, the Participant and the Participant's Spouse, if
required, (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 Participantts Spouse, if
required, shall be obtained in writing within the 90-day period ending
on the Annuity
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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.
An account balance is considered 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 Normal Retirement Age or age
62.
Instead of consenting to a distribution, the Participant may elect to
defer the distribution until the April 1 following the calendar year
in which he reaches age 70-1/2. Failure to make an election will be
deemed to be an election to defer to the April 1 following the
calendar year in which he reaches age 70-1/2.
The Plan Administrator shall notify the Participant and the
Participant's Spouse of the right to defer any distribution. Such
notification shall include a general description of the material
features and an explanation of the relative values of the optional
forms of benefit available under the Plan in a manner that would
satisfy the notice requirements of Code section 417(a)(3), and shall
be provided no less than 30 days and no more than 90 days prior to the
Annuity Starting Date.
If the distribution is one to which Code sections 401 (a)(11) and 417
do not apply, such distribution may commence less than 30 days after
the notice required under Code regulation section 1.411(a)-11(c) is
given, provided that:
(a) 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
(b) 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 3C.6 of the Plan, only the Participant
need consent to the distribution of an account balance that is
immediately distributable. Neither the consent of the Participant nor
the Participant's Spouse shall be required to the extent that a
distribution is required to satisfy Code section 401(a)(9) or section
415. 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 Code section
497S(e)(7)), 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 Code section 4975(e)(7), 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.
For purposes of determining the applicability of the foregoing consen
requirements to distributions made before the first day of the first
Plan Year
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beginning after December 31, 1988, the 1,articipant's vested account
balance shall not include amounts attributable to QVEC Contributions
made between December 31, 1981 and January 1, 1987, plus gains and
minus losses thereon ("accumulated QVEC Contributions").
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.
A Participant who terminates employment and does not consent to an
immediate distribution shall have his distribution deferred. Such a
distribution shall commence no later than the April 1 following the
date the Participant attains age of 70-1/2. Loans may not be initiated
for Participants covered by this paragraph except if, after his
Termination of Employment, the Participant is still a
party-in-interest (as defined in ERISA). A Participant who continues
to maintain an account balance under the Plan may elect to withdraw an
amount which is equal to any whole percentage (not to exceed 100%)
from his Participant's Account. Such an election shall be made in
accordance with Section 3E. Such Participant as described herein shall
have the authority to direct the transfer of his Vested Interest in
accordance with Section SA.2. The election to defer distribution may
be revoked at any time by submitting a written request to the Plan
Administrator. Any Forfeiture attributable to withdrawals shall be
subject to the requirements of Sections 3D.1 and 3E.8 of the Plan. A
Participant whose Termination of Employment is on or after his Early
Retirement Date may elect to defer the distribution subject to the
requirements of Section 3B.
3A.2 COMMENCEMENT OF BENEFITS. Unless the Participant elects otherwise,
distribution of benefits will begin no later than the 60th day after
the latest of the close of the Plan Year in which:
(a) The Participant attains age 65 (or Normal Retirement Age, if
earlier);
(b) The 10th anniversary of the year in which the Participant
commenced participation in the Plan occurs; or,
(c) The Participant terminates service with the Employer.
Notwithstanding the foregoing, the failure of a Participant and Spouse
to consent to a distribution, if required, while a benefit is
immediately distributable within the meaning of Section 3A.1 of the
Plan, shall be deemed to be an election to defer distribution to the
date the Participant attains age 70-1/2.
However, in no event shall distribution of that portion of a
Participant's Account attributable to Elective Deferral Contributions,
Qualified Matching Contributions, and Qualified Nonelective
Contributions be made prior to the earliest of the Participant's
Retirement, death, Disability, separation from service, attainment of
age 59-1/2, or, with respect to Elective Deferral Contributions only,
due to Serious Financial Hardship, unless such distribution is made on
account of:
(a) The Employer's sale, to an unrelated entity, of its interest in a
subsidiary (within the meaning of Code section 409(d)(3)), where
the Employer continues to maintain this Plan and the Participant
continues employment with the subsidiary; or
(b) The Employer's sale, to an unrelated corporation, of
substantially all assets (within the meaning of Code section
409(d)(2)) used in its trade or business, where the Employer
continues to maintain this Plan and the
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Participant continues employment with the employer acquiring such
assets; or
(c) The termination of the Plan, as provided in Section 7B, without
the establishment of another defined contribution plan, other
than an employee stock ownership plan (as defined in Code
sections 4975(e) or 409) or a simplified employee pension plan as
defined in Code section 408(k).
All distributions that may be made in accordance with one or more of
the preceding distributable events are subject to the spousal and
Participant consent requirements (if applicable) of Code sections
401(a)(11) and 417. In addition, distributions made after March 31,
1988, which are triggered by any of the events described in the
immediately preceding paragraphs (a), (b), or (c), must be made in a
lump sum.
3A.3 FROM LIFE INSURANCE POLICIES. The Trustee shall arrange with the
Insurance Company any distribution due to any Participant during his
lifetime from any Life Insurance Policy or Policies on his life. The
manner of distribution shall be a transfer of the values of said
Policy or Policies to the Participant's Account for distribution as a
portion thereof in accordance with this Section.
Subject to Section 3C, Joint and Survivor Annuity Requirements, the
Policies on a Participant's life will be converted to cash or an
annuity or distributed to the Participant upon commencement of
benefits.
In the event of any conflict between the terms of this Plan and the
terms of any Life Insurance Policy purchased hereunder, the Plan
provisions shall control.
3A.4 NONTRANSFERABLE. Any annuity contract distributed herefrom must be
nontransferable.
3A.5 ALTERNATE PAYEE SPECIAL DISTRIBUTION. Distributions pursuant to
Section SD.8 may be made without regard to the age or employment
status of the Participant.
3B. MINIMUM DISTRIBUTION REQUIREMENTS
3B.1 DEFINITIONS.
(a) APPLICABLE LIFE EXPECTANCY. The term Applicable Life Expectancy
means 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 so recalculated. The applicable calendar year shall be
the first Distribution Calendar Year, and if Life Expectancy is
being recalculated, such succeeding calendar year.
(b) DESIGNATED BENEFICIARY. The term Designated Beneficiary means the
individual who is designated as the Beneficiary under the Plan in
accordance with Code section 401(a)(9) and the regulations
thereunder. If a Participant's Beneficiary, as determined in
accordance with Section 1.8, is
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his estate, such Participant shall be treated as having no
Designated Beneficiary.
(c) DISTRIBUTION CALENDAR YEAR. The term Distribution Calendar Year
means 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 3B.3 below.
(d) 5-PERCENT OWNER. For purposes of this Section, the term 5-Percent
Owner means a 5-percent owner as defined in Code section 41 6(i)
(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 Employee
attains age 66-lt2 or any later Plan Year.
(e) LIFE EXPECTANCY. The term Life Expectancy means life expectancy
and joint and last survivor expectancy as computed by use of the
expected return multiples in Table V and VI of section 1.72-9 of
the income Tax Regulations.
Unless otherwise elected by the Participant (or Spouse, in the
case of distributions described in Section 3B.3(b)(2)) by the
time distributions are required to begin, Life Expectancies shall
be recalculated annually. Such election shall be irrevocable as
to the l'articipant (or Spouse) and shall apply to all subsequent
years. The Life Expectancy of a non-Spouse Beneficiary may not be
recalculated.
(f) PARTlClPANT'S BENEFIT. The term Participant's Benefit means:
(1) The Participant's Vested Interest 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 Participant's Account 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.
(2) Exception for second Distribution Calendar Year. For
purposes of paragraph (1) 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.
(g) REQUIRED BEGINNING DATE. The term Required Beginning Date means:
(1) General Rule. The first 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.
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(2) Transitional Rules. The Required Beginning Date of a
l~articipant who attains age 70-1/2 beforeJanuary 1, 1988,
shall be determined in accordance with (A) or (B) below:
(A) on-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.
(B) 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:
(i) The calendar year in which the Participant attains
age 70-1/2; or
(ii) The earlier of the calendar year which ends with or
within the Plan Year in which the participant
becomes a 5-Percent Owner, or the calendar year in
which the Participant retires.
The Required Beginning Date of a Participant who is not
a 5-Percent Owner who attained age 70-1/2 during 1988
and who has not retired as of January 1, 1989 is April
1, 1990.
(3) 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 later
year.
3B.2 DISTRIBUTION REQUIREMENTS.
(a) Except as otherwise provided in Section 3C, Joint and Survivor
Annuity Requirements, the requirements of this Section 3B shall
apply to any distribution of a Participant's Accrued Benefit and
will take precedence over any inconsistent provisions of this
Plan. Unless otherwise specified, the provisions of this Section
apply to calendar years beginning after Decem her 31, 1984.
(b) All distributions required under this Section 3B shall be
determined and made in accordance with regulations under section
401(a)(9), including the minimum distribution incidental benefit
requirement of regulations section 1.401(a)(9)-2.
A Participant's entire Vested Interest 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
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(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 Vested 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) If the Participant's entire Vested Interest is to be
distributed over (1) a period not extending beyond the Life
Expectancy of the Participant or the joint life and last
survivor expectancy of the Participant and the Participant's
Designated Beneficiary or (2) a period not extending beyond
the Life Expectancy of the Designated Beneficiary, the
amount required to be distributed for each calendar year,
beginning with distributions for the first Distribution
Calendar Year, must at least equal the quotient obtained by
dividing the Participants benefit by the Applicable Life
Expectancy.
(2) 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.
(3) 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 regulations section
1.401(a)(9)-2, Q&A-4. Distributions after the death of the
Participant shall be distributed using the Applicable Life
Expectancy in Section 3B.2(d)(1) above, as the relevant
divisor without regard to regulations section 1.401
(a)(9)-2.
(4) 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.
(e) 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 Code section 401(a)(9) and the regulations
thereunder.
3B.3 DEATH DISTRIBUTION PROVISIONS, Upon the death of the l~articipant, the
following distribution provisions shall take effect:
(a) Distributions Beginning Before Death. If the Participant dies
after distribution of his entire Vested Interest has begun, the
remaining portion of such entire Vested Interest will continue to
be distributed at least as
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rapidly as under the method of distribution being used prior to
the Participant's death.
(b) Distributions Beginning After Death. If the Participant dies
before distribution of his entire Vested Interest begins,
distribution of the Participant's entire Vested 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 (1) or (2) below:
(1) If any portion of the Participant's entire Vested Interest
is payable to a Designated Beneficiary, distributions may be
made over 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;
(2) If the Designated Beneficiary is the I'articipant's
surviving Spouse, the date distributions are required to
begin in accordance with (1) above shall not be earlier than
the later of (i) December 31 of the calendar year
immediately following the calendar year in which the
Participant died and (ii) 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 3B.3(b) 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 (Z) December 31 of the calendar year which
contains the fifth anniversary of the Participant's date of
death. 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 Vested
Interest must be completed by December 31 of the calendar year
containing the fifth anniversary of the Participant's death and
will be paid in the form of a single sum cash payment.
(c) For purposes of Section 3B.3(b) above, if the surviving Spouse
dies after the Participant, but before payments to such Spouse
begin, the provisions of this Section, with the exception of
paragraph (b)(2) therein, shall be applied as if the surviving
Spouse were the Participant.
(d) For purposes of this Section, distribution of a Participant's
entire Vested Interest pursuant to Section 3B.3(b) is considered
to begin on the Participant's Required Beginning Date (or, if
paragraph (c) above is applicable, the date distribution is
required to begin to the Surviving Spouse). 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.
3B.4 TRANSITIONAL RULE.
(a) Notwithstanding the other requirements of this Section 3B and
subject to the requirements of Section 3C, Joint and Survivor
Annuity Requirements, distribution on behalf of any Employee,
including a 5-l'ercent Owner, may
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be made in accordance with all of the following requirements
(regardless of when such distribution commences):
(1) The distribution by the l~lan is one which would not have
disqualified such Plan under Code section 401(a)(9) as in
effect prior to amendment by the Deficit Reduction Act of
1984.
(2) The distribution is in accordance with a method of
distribution designated by the Employee whose entire Vested
Interest in the Plan is being distributed or, if the
Employee is deceased, by a Beneficiary of such Employee.
(3) Such designation was in writing, was signed by the Employee
or the Beneficiary, and was made beforeJanuary 1, 1984.
(4) The Employee had accrued a benefit under the Plan as of
December 31, 1983.
(5) The method of distribution designated by the Employee or the
Beneficiary specifies the time at which distribution will
commence, the period over which distributions will be made,
and in the case of any distribution upon the Employee's
death, the Beneficiaries of the Employee listed in order of
priority.
(b) A distribution upon death will not be covered by this
transitional rule unless the information in the designation
contains the required information described above with respect to
the distribution to be made upon the death of the Employee.
(c) For any distribution that 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 (a)(1) and (5).
(d) If a designation is revoked, any subsequent distribution must
satisfy the requirements of Code section 401(a)(9) and related
regulations. 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 Code
section 401(a)(9) and related regulations, except for the TEFRA
section 242(b)(2) election. For calendar years beginning after
December 31, 1988, such distributions must meet the minimum
distribution incidental benefit requirements in regulations
section 1.401(a)(9)-2. 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
from one plan to another plan, the rules in Q&A l-2 and Q&A 1-3
shall apply.
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3C. JOINT AND SURVIVOR ANNUITY REQUIREMENTS
3C.1 APPLICABILITY. Except as provided in Section 3C.6, the provisions of
this Section 3C shall apply to any Participant who is credited with at
least one Hour of Service with the Employer on or after August 23,
1984, and such other Participants as provided in Section 3C.7.
3C.2 DEFINITIONS. The following definitions shall apply to this Section 3C.
(a) EARLIEST RETIREMENT AGE. The term Earliest Retirement Age means
the earliest date on which, under the Plan, the Participant could
elect to receive retirement benefits.
(b) ELECTION PERIOD. The term Election Period means 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 he attains age 35, with respect to the
Vested 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 3S
as of the end of any current Plan Year may make a special
Qualified Election to waive the Qualified Preretirement 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 3C.~(a). Except as
provided in Section 3C.6, Qualified Preretirement Survivor
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 3C.
(c) QUALIFIED ELECTION. The term Qualified Election means a waiver of
a Qualified loins and Survivor Annuity or a Qualified
Preretirement 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 beneficiaries, which may not be
changed without spousal consent (or the Spouse expressly permits
designations by the Participant without any further spousal
consent); (c) the Spouse's consent acknowledges the effect of the
election; and (d) the Spouse's consent is witnessed by a Plan
representative or notary public.
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
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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 Section 3C.5 below.
(d) QUALIFIED JOINT AND SURVIVOR ANNUITY. The term Qualified Joint
and Survivor Annuity means 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 percent (unless a different percentage
is elected by the Participant).
(e) VESTED ACCOUNT BALANCE. The term Vested Account Balance means the
aggregate value of the Participant's vested account balances
derived from contributions made by both the Participant and
Employer, whether vested before or upon death, including the
proceeds of insurance contracts, if any, on the Participant's
life and Rollover Contributions. The provisions of this Section
3C shall apply to a Participant who is vested in amounts
attributable to Employer contributions, Employee Contributions
(or both) made under this Plan at the time of death or
distribution.
3C.3 QUALIFIED JOINT AND SURVIVOR ANNUITY. Unless an optional form of
benefit is selected pursuant to a Qualified Election within the 90-day
period ending on the Annuity Starting Date, a married Participant's
Vested Account Balance will be paid in the form of a Qualified Joint
and Survivor Annuity and an unmarried Participant's Vested Account
Balance will be paid in the form of a Life Annuity. The Participant
may elect to have such Annuity distributed upon attainment of the
Earliest Retirement Age under the Plan.
3C.4 QUALIFIED PRERETIREMENT 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 no less than 50 percent (or 100 percent if so elected in
the Adoption Agreement) of the Participant's Vested Account Balance
shall be applied toward the purchase of an Annuity for the life of the
surviving Spouse. If less than 100 percent is selected, then the
remaining portion of the Vested Account Balance shall be paid to the
Participant's Beneficiary. If less than 100 percent of the Vested
Account Balance is paid to the surviving Spouse, the amount of
Employee Contributions allocated to the surviving Spouse will be in
the same proportion as the Employee Contributions bears to the total
Vested Account Balance of the Participant. The surviving Spouse may
elect to have such Annuity distributed within a reasonable period
after the Participant's death.
3C.5 NOTICE REQUIREMENTS.
(a) In the case of a Qualified Joint and Survivor Annuity, the Plan
Administrator shall no less than 30 days and no more than 90 days
prior to
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the Annuity Starting Date provide each Participant with 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
loins and Survivor Annuity.
(b) In the case of a Qualified Preretirement Survivor Annuity, the
plan Administrator shall provide each Participant within the
applicable period (described in subsection (c) below) for such
Participant a written explanation of the Qualified Preretirement
Survivor Annuity in such terms and in such manner as would be
comparable to the explanation provided for meeting the
requirements of Section 3C.5(a) applicable to a Qualified Joint
and Survivor Annuity.
(c) 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 in which the Participant attains age
32 and ending with the close of the Plan Year preceding the Plan
Year in which the Participant attains age 3S; (ii) a reasonable
period ending after the individual becomes a Participant; (iii) a
reasonable period ending after the Qualified Joint and Survivor
Annuity is no longer fully subsidized; (iv) a reasonable period
ending after this Section 3C first applies to the Participant.
Notwithstanding the foregoing, notice must be provided within a
reasonable period ending after separation from Service before
attaining age 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 he attains
age 35, 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 redeterm ined.
(d) Notwithstanding the other requirements of this Section, the
respective notices prescribed by this Section need not be given
to a l~articipant if (1) the Plan "fully subsidizes" the costs of
a Qualified Joint and Survivor Annuity or Qualified Preretirement
Survivor Annuity, and (2) the plan does not allow the Participant
to waive the Qualified Joint and Survivor Annuity or Qualified
Preretirement Survivor Annuity and does not allow a married
Participant to designate a nonspouse Beneficiary. For purposes of
this Section 3C.5(d), a Plan fully subsidizes the costs of a
benefit if no increase in cost or decrease in benefits to the
Participant may result form the Participant's failure to elect
another benefit.
3C.6 SAFE HARBOR RULES.
(a) This Section shall apply to a Participant in a profit sharing
plan, and to any distribution made on or after the first day of
the first plan Year beginning after December 31, 1988, from or
under a separate account
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attributable solely to accumulated QVEC Contributions (as
described in Section 3A.1), and maintained on behalf of a
Participant in a money purchase pension plan (including a target
benefit plan), if the following conditions are met: (1) the
Participant does not or cannot elect payments in the form of a
Life Annuity; and (2) on the death of a Participant, the
Participant's Vested Account Balance will be paid to the
Participant's surviving Spouse, but if there is no surviving
Spouse, or if the surviving Spouse has consented in a manner
conforming to a Qualified Election, then to the Participant's
designated Beneficiary.
(b) The surviving Spouse may elect to have distribution of the Vested
Account Balance commence within the 90-day period following the
date of the Participant's death. The account balance shall be
adjusted for gains or losses occurring after the Participant's
death in accordance with the provisions of the Plan governing the
adjustment of account balances for other types of distributions.
(c) The Participant may waive the spousal death benefit described in
this Section 3C.6 at any time provided that no such waiver shall
be effective unless it satisfies the conditions of Section
3C.2(c) (other than the notification requirement referred to
therein) that would apply to the Participant's waiver of the
Qualified Preretirement Survivor Annuity.
(d) If this Section 3C.6 is operative, then the provisions of this
Section 3C, other than Section 3C.7, shall be inoperative.
This Section 3C.6 shall not be operative with respect to a
Participant in a profit-sharing 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 profit-sharing plan
that is subject to the survivor annuity requirements of Code
sections 401(a)(11) and 417.
(e) For purposes of this Section 3C.6, the term 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 QVEC Contributions (as
described in Section 3A.1). In the case of a profit sharing plan,
the term Vested Account Balance shall have the same meaning as
provided in Section 3C.2(e).
3C.7 TRANSITIONAL RULES.
(a) 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 3C must be given the
opportunity to elect to have the prior Sections of this Section
3C 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 afterJanuary 1, 1976, and such Participant had at
least 10 years of vesting Service when he separated from Service.
(b) Any living Participant not receiving benefits on August 23, 1984,
who was credited with at least one Hour of Service under this
Plan or a predecessor plan on or after September 2, 1974, and who
is not otherwise credited with any Service in a Plan Year
beginning on or afterJanuary 1, 1976, must be given the
opportunity to have his benefits paid in accordance with Section
3C.7(d).
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(c) The respective opportunities to elect (as described in Sections
3C.7(a) and 3C.7(b) above) must be afforded to the appropriate
Participants during the period commencing on August 23, 1984, and
ending on the date benefits would otherwise commence to said
Participants.
(d) Any Participant who has elected pursuant to Section 3C.7(b), and
any Participant who does not elect under Section 3C.7(a), or who
meets the requirements of Section 3C.7(a), except that such
Participant does not have at least 10 years of vesting Service
when he separates from Service, shall have his benefits
distributed in accordance with all of the following requirements
if benefits would have been payable in the form of a Life
Annuity:
(1) Automatic Joint and Survivor Annuity. If benefits in the
form of a Life Annuity become payable to a married
Participant who:
(A) Begins to receive payments under the Plan on or after
Normal Retirement Age; or
(B) Dies on or after Normal Retirement Age while still
working for the Employer; or
(C) Begins to receive payments on or after the Qualified
Early Retirement Age; or
(D) Separates from Service on or after attaining Normal
Retirement Age (or the Qualified Early Retirement Age)
and after satisfying the eligibility requirements for
the payment of benefits under the Plan and thereafter
dies before beginning to receive such benefits;
then such benefits will be received under this Plan in the
form of a Qualified Joint and Survivor Annuity, unless the
Participant has elected otherwise during the Election
Period. The Election Period must begin at least 6 months
before the Participant attains Qualified Early Retirement
Age and end not more than 90 days before the commencement of
benefits. Any election hereunder will be in writing and may
be changed by the Participant at any time.
(2) 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.
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(3) For purposes of this Section 3C.7(d):
(A) 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 Age; or
(iii) The date the Participant begins participation.
(B) 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 3C.2(d).
3D. TERMINATION OF EMPLOYMENT
3D.1 DISTRIBUTION. A Participant who terminates employment shall be
entitled to receive a distribution of his entire Vested Interest. Such
distribution shall be further subject to the terms and conditions of
Section 3C. The method used, as elected by the Employer in the
Adoption Agreement, is one of the following:
(a) Immediate (Cash-Out Method).
If at the time of his Termination of Employment the Participant
is not 100% vested and does not take a distribution from the
portion of his Vested Interest that is attributable to
contributions made by the Employer, the non-vested portion of his
Participant's Account will become a Forfeiture upon the date such
terminated Participant incurs 5 consecutive 1-Year
Breaks-in-Service.
However, if at the time of his Termination of Employment the
Participant is not 100% vested and does take a distribution from
the portion of his Vested Interest that is attributable to
contributions made by the Employer, or if the Participant is 0%
vested, the non-vested portion of his Participant's Account will
become a Forfeiture immediately upon the Participant's
Termination of Employment date.
If a Participant whose non-vested portion of his Participant's
Account became a Forfeiture in accordance with the terms of the
preceding paragraph is later rehired by the Employer and
re-enrolls in the Plan before incurring 5 consecutive 1-Year
Breaks-in-Service, then the amount of the Forfeiture shall be
restored to the Participant's Account by the Employer in
accordance with the repayment provision elected by the Employer
in the Adoption Agreement and described in Section 3D.2..
(b) 1-Year Break-in-Service (Cash-Out Method).
If at the time of his Termination of Employment the Participant
is not 100% vested and does not take a distribution from the
portion of his Vested Interest that is attributable to
contributions made by the Employer, the non-vested portion of his
Participant's Account will become a Forfeiture upon the date such
terminated Participant incurs 5 consecutive 1-Year
Breaks-in-Service.
However, if at the time of his Termination of Employment the
Participant is not 100% vested and does take a distribution from
the portion of his
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Vested Interest that is attributable to contributions made by the
Employer, or if the Participant is 0% vested, the non-vested
portion of his Participant's Account will become a Forfeiture
upon the date such terminated Participant incurs a 1-Year
Break-in-Service.
If a terminated Participant, whose non-vested portion of his
Participant's Account became a Forfeiture in accordance with the
terms of the preceding paragraph, is later rehired by the
Employer and re-enrolls in the Plan before incurring 5
consecutive 1-Year Breaks-in-Service, then the amount of the
Forfeiture shall be restored to the Participant's Account by the
Employer in accordance with the repayment provision elected by
the Employer in the Adoption Agreement and described in Section
3D.2.
(c) 5 Consecutive 1-Year Breaks-in-Service.
If at the time of His Termination of Employment the Participant
is not 100% vested, the non-vested portion of his Participant's
Account will become a Forfeiture upon the date the terminated
Participant incurs 5 consecutive 1-Year Breaks-in-Service.
3D.2 REPAYMENT OF PRIOR DISTRIBUTION.
If a terminated Participant is later rehired by the Employer and
re-enrolls in the Plan, the following Optional Payback or Required
Payback provisions, as elected by the Employer in the Adoption
Agreement, will apply:
(a) Optional Payback:
(1) If the Participant was 0% vested at his Termination of
Employment and did not incur 5 consecutive 1-Year
Breaks-in-Service after such date, the amount which became a
Forfeiture, if any, shall be restored by the Employer at the
time such Participant re-enrolls in the Plan.
(2) If the Participant was vested but not 100% vested at his
Termination of Employment and did not incur 5 consecutive
1-Year Breaks-in- Service after such date, the amount which
became a Forfeiture, if any, shall be restored by the
Employer at the time such Participant re-enrolls in the
Plan. In addition, the Participant may repay the full amount
of the distribution attributable to Employer contributions,
if any, made at his Termination of Employment. Such
repayment of Employer contributions, however, must be made
before the Participant has incurred 5 consecutive 1-Year
Breaks-in- Service following the date he received the
distribution or five years after the Participant is rehired
by the Employer, whichever is earlier.
(3) If the Participant had incurred 5 consecutive 1-Year
Breaks-in- Service after his termination of Employment, the
amount of the Participant's Account that became a Forfeiture
shall remain a Forfeiture and such Participant shall be
prohibited from repaying a distribution made at his
Termination of Employment.
(b) Required Payback:
(1) If the Participant was 0% vested at his Termination of
Employment and did not incur 5 consecutive 1-Year
Breaks-in-Service after such date, the amount which became a
Forfeiture, if any, shall be
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restored by the Employer at the time such Participant
re-enrolls in the Plan.
(2) If the Participant was vested but not 100% vested at his
Termination of Employment and did not incur 5 consecutive
1-Year Breaks-in- Service after such date, the Participant
shall be required to repay the full amount of the
distribution attributable to Employer contributions, if any,
made at his Termination of Employment. Such repayment of
Employer contributions, however, must be made before the
Participant has incurred 5 consecutive 1-Year Breaks-in-
Service following the date he received the distribution or
five years after the Participant is rehired by the Employer,
whichever is earlier.
When the Participant makes such repayment, the amount which
became a Forfeiture, if any, shall be restored by the
Employer at the same time such repayment is made. However,
if the Participant does not repay the distribution made in
accordance with this Section 3D within the period of time
specified above, that Forfeiture shall remain a Forfeiture.
(3) If the Participant had incurred S consecutive 1-Year
Breaks-in- Service after his Termination of Employment, the
amount of the Participant's Account that became a Forfeiture
shall remain a Forfeiture and such Participant shall be
prohibited from repaying the distribution made at his
Termination of Employment.
3D.3 LIFE INSURANCE POLICY. If all or any portion of the value of any Life
Insurance Policy on the Participant's life will become a Forfeiture,
the Participant shall have the right to buy such policy from the
Trustee for the then value of such policy less the value of any Vested
Interest therein, within 30 days after written notice from the Trustee
is mailed to his last known address.
3D.4 NO FURTHER RIGHTS OR INTEREST. A Participant shall have no further
interest in or any rights to any portion of his Participant's Account
that becomes a Forfeiture due to his Termination of Employment once
the Participant incurs 5 consecutive 1-Year Breaks-in-Service in
accordance with Section 2A.4.
3D.5 FORFEITURE. Any Forfeiture arising in accordance with the provisions
of Section 3D. 1 shall be treated as follows:
Any amount of Forfeitures shall be used in accordance with (a), (b),
or (c) below, in the manner set forth in Section 2C.
(a) Employer Credit. Forfeitures shall be used by the Employer to
reduce and in lieu of the Employer contribution next due under
Section 2C, or to pay Plan expenses, at the earliest opportunity
after such Forfeiture becomes available.
(b) Reallocation. Forfeitures shall be allocated in accordance with
the allocation formula of the contributions from which they
arose.
(c) Employer Credit and Reallocation of Remainder. Forfeitures shall
first be used to reduce and in lieu of the Employer contribution
next due under Section 2C, or to pay Plan expenses, at the
earliest opportunity after such Forfeiture becomes available. Any
Forfeitures remaining following use as an Employer credit shall
be allocated in accordance with the allocation formula of the
contributions from which they arose.
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Notwithstanding anything above to the contrary, if Forfeitures
are generated immediately or upon the occurrence of a 1-Year
Break-in-Service, and a former Participant returns to employment
with the Employer after Forfeitures are generated but prior to
the occurrence of 5 consecutive 1-Year Breaks-in-Service,
Forfeitures, if any, will first be used to make whole the
nonvested account of such Participant, equal to the value of the
nonvested account at the time the Participant terminated
employment with the Employer in accordance with the applicable
provisions of Section 3D.2. In the event that the available
Forfeitures are not sufficient to make whole the nonvested
account, the Employer will make an additional contribution
sufficient to make the nonvested account whole.
3D.6 LOST PARTICIPANT. If a benefit is forfeited because the Participant or
Beneficiary cannot be found, as discussed in Section SD.7, such
benefit will be reinstated if a claim is made by the Participant or
Beneficiary.
3D.7 DEFERRAL OF DISTRIBUTION. If elected by the Employer, and as discussed
in Section 3A.1, a Participant who terminates employment and does not
consent to an immediate distribution shall have his distribution
deferred (and may be responsible for all fees and expenses associated
with maintaining his account in a deferred status).
3E. WITHDRAWALS
3E.1 WITHDRAWAL - EMPLOYEE CONTRIBUTIONS.
(a) Required Employee Contributions. If the Employer has elected in
its Adoption Agreement to allow for a withdrawal of Required
Employee Contributions and earnings thereon, then a Participant
may elect to withdraw from his Participant's Account an amount
equal to any whole percentage (not exceeding 100%) of his entire
Vested Interest in his Participant's Account attributable to
Required Employee Contributions plus any income and minus any
loss thereon. On the date the election becomes effective, the
Participant shall be suspended from making any further
contributions to the Plan, and from having any Matching
Contributions made on his behalf for a period, as elected by the
Employer in its Adoption Agreement.
(b) Voluntary Employee Contributions. If the Employer has elected in
its Adoption Agreement to allow for withdrawal of Voluntary
Employee Contributions and earnings thereon, then a Participant
may elect to withdraw from his Participant's Account an amount
which is equal to any whole percentage (not exceeding 100%) of
the entire Vested Interest in his Participant's Account
attributable to Voluntary Employee Contributions plus any income
and minus any loss thereon.
(c) Prior Required Employee Contributions. If the Employer has
elected in its Adoption Agreement to allow for a withdrawal of
Prior Required Employee Contributions and earnings thereon, then
a Participant may elect to withdraw from his Participantts
Account an amount equal to any whole percentage (not exceeding
100%) of his entire Vested Interest in his Participant's Account
attributable to Prior Required Employee Contributions plus any
income and minus any loss thereon.
(d) Prior Voluntary Employee Contributions. If the Employer has
elected in its Adoption Agreement to allow for withdrawal of
Prior Voluntary Employee
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Contributions and earnings thereon, then a Participant may elect
to withdraw from his Participant's Account an amount which is
equal to any whole percentage (not exceeding 100%) of the entire
Vested Interest in his Participant's Account attributable to
Prior Voluntary Employee Contributions plus any income and minus
any loss thereon
If a Participant elects a withdrawal under the provisions of this
Section, he may not elect another withdrawal under this Section for an
additional period specified by the Employer in its Adoption Agreement.
The Participant shall notify the Plan Administrator in writing of his
election to make a withdrawal under this Section. Any such election
shall be effective as of the date specified in such notice, which date
must be at least 15 days after notice is filed.
No Forfeitures will occur solely as a result of an Employee's
withdrawal of Employee Contributions.
3E.2 WITHDRAWAL - ELECTIVE DEFERRAL CONTRIBUTIONS. If the Participant has
attained age 59-1/2, and if selected by the Employer in its Adoption
Agreement, the Participant may elect to withdraw from his
Participant's Account an amount which is equal to any whole percentage
(not exceeding 100%) of his Vested Interest in his Participant's
Account attributable to his Elective Deferral Contributions and
earnings thereon.
The Participant shale notify the Plan Administrator in writing of his
election to make a withdrawal under this Section. Any such election
shall be effective as of the date specified in such notice, which date
must be at least 15 days after notice is filed.
3E.3 WITHDRAWAL - EMPLOYER CONTRIBUTIONS. If the Employer has specified in
its Adoption Agreement that withdrawals of Matching Contributions,
Nonelective Contributions, or Prior Employer Contributions, if
applicable, are permitted' a Participant, who has been a Participant
for at least 60 consecutive months, may elect to withdraw from his
Participant's Account an amount equal to a whole percentage (not to
exceed 100%) of his Vested Interest in his Participant's Account
attributable to Matching Contributions (and reallocated Forfeitures,
if applicable), Nonelective Contributions, (and reallocated
Forfeitures, if applicable), or Prior Employer Contributions (and
reallocated Forfeitures, if applicable), along with earnings. On the
date the election becomes effective, the Participant may be suspended
from making Employee Contributions and Elective Deferral
Contributions, if any, and from having Employer contributions made on
his behalf for a period of time, as selected by the Employer in its
Adoption Agreement. In lieu of or in addition to the 60-months of
participation requirement, the Employer may specify in the Adoption
Agreement that withdrawal of Employer contributions, to the extent
vested, shall be available upon or following the attainment of age
59-1/2.
In the event a Participantts suspension period occurs during a year
(or years) when no Employer contributions are made, such suspension
shall be taken into account when the next Employer contribution(s) is
made.
The Participant shall notify the Plan Administrator in writing of his
election to make a withdrawal under this Section. Any such election
shall be effective as of the date specified in such notice, which date
must be at least 15 days after notice is filed.
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3E.4 WITHDRAWAL FOR SERIOUS FINANCIAL HARDSHIP OF CONTRIBUTIONS OTHER THAN
ELECTIVE DEFERRAL CONTRIBUTIONS. Except as provided in Sections 7B.1
and 7B.7(e), if the Plan is a profit sharing plan or a thrift plan,
and if the Employer has elected in its Adoption Agreement to permit
withdrawals due to the occurrence of events that constitute Serious
Financial Hardships to a Participant, such Participant may withdraw
all or a portion of his Vested Interest (excluding Elective Deferral
Contributions, Qualified Nonelective Contributions, Qualified Matching
Contributions, and earnings on these contributions). Such Serious
Financial Hardship must be shown by positive evidence submitted to the
Plan Administrator that the hardship is of sufficient magnitude to
impair the Participant's financial security. Withdrawals shall be
determined in a consistent and nondiscriminatory manner, and shall not
affect the Participant's rights under the Plan to make additional
withdrawals or to continue to be a Participant.
3E.5 WITHDRAWAL FOR SERIOUS FINANCIAL HARDSHIP OF ELECTIVE DEFERRAL
CONTRIBUTIONS. If the Employer has selected in its Adoption Agreement,
a distribution may be made on account of Serious Financial Hardship if
subparagraphs (a) and (b) of this Section are satisfied. The funds
available for withdrawal shall be the portion of a Participant's
Account attributable to Elective Deferral Contributions, including any
earnings credited to such contributions as of the end of the last Plan
Year ending before July 1, 1989 ("pre-1989 earnings"), and if
applicable, Qualified Matching Contributions credited to the
Participant's Account as of the end of the last Plan Year ending
before July I, 1989, Qualified Nonelective Contributions credited to
the Participant's Account as of the end of the last Plan Year ending
before July 1, 1989, and any pre-1989 earnings attributable to
Qualified Matching Contributions, or Qualified Nonelective
Contributions. Qualified Matching Contributions credited to the
Participant's Account after the end of the last Plan Year ending
before July 1, 1989, Qualified Nonelective Contributions credited to
the l~articipant's Account after the end of the last Plan Year ending
before July 1, 1989, and earnings on Elective Deferral Contributions,
Qualified Matching Contributions, and Qualified Nonelective
Contributions credited after the end of the last Plan Year ending
before July 1, 1989 shall not be eligible for withdrawal under this
Section. For purposes of this Section, a distribution may be made on
account of a hardship only if the distribution is made on account of
an immediate and heavy financial need of the Employee where such
Employee lacks other available resources.
(a) The following are the only financial needs considered immediate
and heavy for purposes of this Section:
(i) Expenses for medical care described in Code section 213(d)
previously incurred by the Employee, the Employee's Spouse,
or any dependents of the Employee (as defined in Code
section 152) or necessary for these persons to obtain
medical care described in Code section 213(d);
(ii) Costs directly related to the purchase of a principal
residence for the Employee (excluding mortgage payments);
(iii) Payments necessary to prevent the eviction of the Employee
from the Employee's principal residence or foreclosure on
the mortgage on that residence; or
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(iv) Tuition payments, related educational fees and amounts
distributed for the payment of room-and-board expenses for
the next 12 months of post-secondary education for the
Employee, his or her Spouse, or any of his or her
dependents.
(b) To the extent the amount of distribution requested does not
exceed the amount required to relieve the Participant's financial
need, such distribution will be considered as necessary to
satisfy an immediate and heavy financial need of the Employee
only if:
(i) The Employee has obtained all distributions, other than
hardship distributions, and all nontaxable loans under all
plans maintained by the Employer;
(ii) All plans maintained by the Employer provide that the
Employee's Elective Deferral Contributions and if
applicable, Employee Contributions, will be suspended for 12
months after the receipt of the hardship distribution;
(iii) The distribution is not in excess of the amount of the
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
(iv) All plans maintained by the Employer provide that the
Employee may not make Elective Deferral Contributions for
the Employee's taxable year immediately following the
taxable year of the hardship distribution in excess of the
applicable limit under Code section 402(g) for such taxable
year less the amount of such Employee's Elective Deferral
Contributions for the taxable year of the hardship
distribution.
3E.6 WITHDRAWAL - QVEC CONTRIBUTIONS and ROLLOVER CONTRIBUTIONS. If
selected by the Employer in its Adoption Agreement, a Participant may
elect to withdraw from his Participant's Account as often during each
Plan Year as elected by the Employer in the Adoption Agreement, any
amount up to 100% of his entire Vested Interest in his Participant's
Account attributable to his QVEC Contributions or Rollover
Contributions along with earnings thereon.
The Participant shall notify the Plan Administrator in writing of his
election to make a withdrawal under this Section. Any such election
shall be effective as of the date specified in such notice, which date
must be at least 15 days after notice is filed.
3E.7 NOTIFICATION. The Participant shall notify the Plan Administrator in
writing of his election to make a withdrawal under Section 3E. Any
such election shall be effective as of the date specified in such
notice, which date must be at least 15 days after such notice is
filed. Payment of the withdrawal shall be subject to the terms and
conditions of Section 3A. All withdrawals made under the provisions of
Section 3E shall be subject to the spousal consent requirements of
Section 3C, as applicable.
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3E.8 VESTING CONTINUATION. In the event a partially vested Participant
takes a withdrawal of less than 100% of his Vested Interest in
accordance with Section 3E.3 or 3E.4 or 3E.5, the remaining portion of
his Participant's Account attributable to Employer contributions shall
vest according to the formula as set forth in Section 3D.1.
3E.9 WITHDRAWAL - PARTICIPANT'S EMPLOYER STOCK ACCOUNT. The ability of a
Participant who is sub ject to the reporting requirements of section 1
6(a) of the Securities Exchange Act of 1934 (the "Act") to make
withdrawals or investment changes involving the Participant's Employer
Stock Account may be restricted by the Plan Administrator to comply
with the rules under section 1 6(b) of the Act.
3E.10 WITHDRAWAL BY TERMINATED PARTICIPANTS. Terminated Participants who
have deferred distribution of their benefit may make withdrawals from
the Plan in the same manner as selected by the Employer in its
Adoption Agreement for withdrawals preceding termination.
3F. DIRECT ROLLOVERS
3F.1 DEFINITIONS.
(a) DIRECT ROLLOVER. The term Direct Rollover means a payment by
the Plan to the Eligible Retirement Plan specified by the
Distributee.
(b) DISTRIBUTEE. The term Distributee means 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 who is the Alternate Payee under a QDRO,
are Distributees with regard to the interest of the Spouse
or former Spouse.
(c) ELIGIBLE RETIREMENT PLAN. The term Eligible Retirement Plan
means an individual retirement account described in Code
section 408(a), an individual retirement annuity described
in Code section 408(b), an annuity plan described in Code
section 403(a), or a qualified plan described in Code
section 401(a), 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 an
individual retirement annuity.
(d) ELIGIBLE ROLLOVER DISTRIBUTION. The term Eligible Rollover
Distribution means any distribution of all or any portion of
the balance to the credit of the Distributee, except that an
Eligible Rollover Distribution does not include: any
distribution that is one of a series of substantially equal
periodic payments (not less frequently than annually) made
for the life (or Life Expectancy) of the Distributee or the
joint lives (or joint life expectancies) of the Distributee
and the Distributee's designated Beneficiary, or for a
specified period of ten years or more; any distribution to
the extent such distribution is required under Code section
401(a)(9); and the portion of any distribution that is not
includable in gross income (determined without regard to the
exclusion for net unrealized appreciation with respect to
employer securities); and any other distribution(s) that is
reasonably expected to total less than $200 during a year.
3F.2 DIRECT ROLLOVERS. This Section applies to distributions made on or
after January 1, 1993. Notwithstanding any provision of the Plan to
the contrary that
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would otherwise limit a Distributee's election under this Section, a
Distributee may elect, at the time and in the manner prescribed by the
loan Administrator, to have any portion of an Eligible Rollover
Distribution that is equal to at least S500 paid directly to an
Eligible Retirement Plan specified by the Distributee in a Direct
Rollover.
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ARTICLE IV - LEGAL LIMITATIONS ON CONTRIBUTIONS
4A. NONDISCRIMINATION TESTS
4A.l DEFINITIONS.
(a) ACTUAL CONTRIBUTION PERCENTAGE. The term Actual Contribution
Percentage (ACP) means the average of the Actual Contribution
Ratios of the Eligible Participants in a group.
(b) ACTUAL CONTRIBUTION RATIO. The term Actual Contribution Ratio
means the ratio (expressed as a percentage) of a Participant's
Contribution Percentage Amounts to that Participant's
Compensation for the Plan Year (whether or not the Employee was a
Participant for the entire Plan Year).
(c) ACTUAL DEFERRAL PERCENTAGE. The term Actual Deferral Percentage
(ADP) means the average of the Actual Deferral Ratios for a
specified group of Participants.
(d) ACTUAL DEFERRAL RATIO. The term Actual Deferral Ratio means the
ratio (expressed as a percentage) of a Participant's Deferral
Percentage Amounts to that Participant's Compensation for such
Plan Year. The Actual Deferral Ratio for an Employee who is
eligible to be a Participant but fails to make Elective Deferral
Contributions shall be zero.
(e) AGGREGATE LIMIT. The term Aggregate Limit means the sum of: (i)
125 percent of the greater of the ADP of the non-Highly
Compensated Employees for the Plan Year or the ACP of non-Highly
Compensated Employees under the plan sub sect to Code section
401(m) for the Plan Year beginning with or within the Plan Year
of the CODA and (ii) the lesser of 200% or two plus the lesser of
such ADr) or ACT'. "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.
(f) CONTRIBUTION PERCENTAGE AMOUNTS. The term Contri button
Percentage Amounts means the sum of the Employee Contributions,
Matching Contributions, Qualified Matching Contributions (to the
extent not taken into account for purposes of the ADP test) and
Qualified Nonelective 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
Elective Deferral Contributions, Excess Contributions, or Excess
Aggregate Contributions. The Employer may elect to use Elective
Deferrals in the Contribution Percentage Amounts as long as the
ADP test (as described in Section 4A.2) is met before the
Elective Deferrals are used in the ACP test (as described in
Section 4A.4) and the ADP test continues to be met following the
exclusion of those Elective Deferrals that are used to meet the
ACP test.
(g) DEFERRAL PERCENTAGE AMOUNTS. The term Deferral Percentage Amounts
means any Elective Deferral Contributions made pursuant to the
Participant's deferral election, including Excess Elective
Deferral Contributions of Highly Compensated Employees, but
excluding Elective Deferral Contributions that are taken into
account in the ACP test
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(provided the ADP test is satisfied both with and without
exclusion of these Elective Deferral Contributions). In addition,
the Employer may choose to make Qualified Nonelective
Contributions and Qualified Matching Contributions.
(h) ELIGIBLE PARTICIPANT. The term Eligible Participant means any
Employee who is eligible to make an Employee Contribution or
Elective Deferral Contribution (if the Employer takes such
contributions into account in the calculation of the Actual
Contribution Ratio), or to receive a Matching Contribution
(including Forfeitures) or a Qualified Matching Contribution. If
an Employee 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 the Required
Employee Contribution shall be treated as an Eligible Participant
on behalf of whom no Employee Contributions are made.
If the Employer has elected in its Adoption Agreement to provide for
Elective Deferral Contributions, then Sections 4A.2 through 4A.5 shall
apply.
4A.2 ACTUAL DEFERRAL PERCENTAGE TEST. The ADI, for Participants who are
Highly Compensated Employees for each Plan Year and the ADP for
Participants who are non-Highly Compensated Employees for the same
Plan Year must satisfy one of the following tests:
(a) The ADP for Participants who are Highly Compensated Employees for
the Plan Year shall not exceed the ADP for Participants who are
non-Highly Compensated Employees for the same Plan Year
multiplied by 1.25; or
(b) The ADP for Participants who are Highly Compensated Employees for
the Plan Year shall not exceed the ADP for Participants who are
non-Highly 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 non-Highly Compensated Employees by more
than two (2) percentage points.
4A.3 SPECIAL RULES - ADP TEST.
(a) The ADP for any Participant who is a Highly Compensated Employee
for the Plan Year and who is eligible to have Elective Deferral
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 accounts
under two or more CODAs maintained by the Employer, shall be
determined as if such Elective Deferral Contributions (and, if
applicable, such Qualified Nonelective Contributions or Qualified
Matching Contributions, or both) were made under a single CODA.
If a Highly Compensated Employee participates in two or more
CODAs that have different Plan Years, such CODAs are treated as a
single CODA with respect to the Plan Years ending with or within
the same calendar year. Notwithstanding the foregoing, certain
plans shall be treated as separate if mandatorily disaggregated
under regulations under Code section 401(k).
(b) If this Plan satisfies the requirements of Code sections 401(k),
401(a)(4), or 410(b) only if aggregated with one or more other
plans, or if one or more other plans satisfy the requirements of
such Code sections only if
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aggregated with this lean, 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 Code section 401(k)
only if they have the same Plan Year.
(c) If a Highly Compensated Employee is subject to the family
aggregation rules of section 414(q)(6) because that Participant
is either a 5-percent owner or one of the top 10 Highly
Compensated Employees, the combined Actual Deferral Ratio for the
family group (which is treated as one Highly Compensated
Employee) must be determined by combining the Elective Deferral
Contributions (and Qualified Nonelective Contributions or
Qualified Matching Contributions, or both, if treated as Elective
Deferral Contributions for purposes of the ADP test), and
Compensation for the Plan Year of all the family members (as
defined in section 414(q)(6)). Such family members shall be
disregarded as separate Employees in determining the ADP for both
Highly Compensated Employees and non-Highly Compensated
Employees.
(d) For purposes of determining the ADP test, Elective Deferral
Contributions, Qualified Nonelective Contributions and Qualified
Matching Contributions must be made before the last day of the 1
2-month period immediately following the Plan Year to which such
contributions relate.
(e) The Employer shall maintain records sufficient to demonstrate
satisfaction of the ADP test and the amount of Qualified
Nonelective Contributions or Qualified Matching Contributions, or
both, used in such test.
(f) The determination and treatment of the Deferral Percentage
Amounts of any Participant shall satisfy such other requirements
as may be prescribed by the Secretary of the Treasury.
(g) If the Employer determines before the end of the Plan Year that
the Plan may not satisfy the ADP test for the Plan Year, the
Employer may require that the amounts of Elective Deferral
Contributions being allocated to the accounts of Highly
Compensated Employees be reduced to the extent necessary to
prevent Excess Contributions from being made to the Plan.
Although the Employer may reduce the amounts of Elective Deferral
Contributions that may be allocated to the Participant's Accounts
of Highly Compensated Employees, the affected Employees shall
continue to participate in the Plan. When the situation that
resulted in the reduction of Elective Deferral Contributions
ceases to exist, the Employer shall reinstate the amounts of
Elective Deferral Contributions elected by the affected
Participants in their Salary Deferral Agreement to the fullest
extent possible.
If the Employer has elected in its Adoption Agreement, to provide for
Employee Contributions and/or Matching Contributions required to be tested
under Code section 401(m), then Sections 4A.4 and 4A.S shall apply.
4A.4 ACTUAL CONTRIBUTION PERCENTAGE TEST. The ACP for Participants who are
Highly Compensated Employees for each Plan Year and the ACP for
Participants who are non-Highly Compensated Employees for the same
Plan Year must satisfy one of the following tests:
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(a) The ACP for Participants who are Highly Compensated Employees for
the Plan Year shall not exceed the ACP for Participants who are
non-Highly Compensated Employees for the same plan Year
multiplied by 1.25; or
(b) The ACP for Participants who are Highly Compensated Employees for
the Plan Year shall not exceed the ACP for Participants who are
non-Highly 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 non-Highly Compensated Employees by more
than two (2) percentage points.
4A.5 SPECIAL RULES - ADP/ACP TESTS.
(a) Multiple Use: If one or more Highly Compensated Employees
participates in both a CODA 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 CODA will be
reduced (beginning with such Highly Compensated Employee whose
Actual Contribution Ratio is the highest) so that the limit is
not exceeded. The amount by which each Highly Compensated
Employee's Contribution Percentage Amounts are 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 both the ADP and ACP of the Highly Compensated
Employees does not exceed 1.25 multiplied by the ADP and ACP of
the non-Highly Compensated Employees.
(b) For purposes of this Section, the Actual Contribution Ratio for
any Participant who is a Highly Compensated Employee and who is
eligible to have Contribution Percentage Amounts allocated to his
account under two or more plans described in Code section 401
(a), or CODAs 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 CODAs that have different
Plan Years, all CODAs ending with or within the same calendar
year are treated as a single CODA. Notwithstanding the foregoing,
certain plans shall be treated as separate if mandatorily
disaggregated under regulations under Code section 401(m).
(c) If this Plan satisfies the requirements of Code sections 401(m),
401(a)(4) or 410(b) only if aggregated with one or more other
plans, or if one or more other plans satisfy the requirements of
such sections of the Code only if aggregated with this Plan, then
this Section shall be applied by determining the Actual
Contribution Ratio 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 Code section 401(m)
only if they have the same Plan Year.
(d) For purposes of determining the Actual Contribution Ratio of a
Participant who is a 5-percent owner or one of the Top 10 Highly
Compensated Employees, the Contribution Percentage Amounts and
Compensation for such Participant shall include the Contribution
Percentage Amounts and Compensation for the Plan Year of family
members (as defined in Code
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section 414(q)(6)). Such family members shall be disregarded as
separate Employees in determining the ACP for Highly Compensated
Employees and non-Highly Compensated Employees.
(e) For purposes of determining the ACP test, Employee Contributions
are considered to have been made in the Plan Year in which
contributed to the Plan. Qualified Matching Contributions and
Qualified Nonelective Contributions are considered made for a
Plan Year if made no later than the end of the 12-month period
beginning on the day after the close of the Plan Year.
(f) The Employer shall maintain records sufficient to demonstrate
satisfaction of the ACP test and the amount of Qualified
Nonelective Contributions or Qualified Matching Contributions, or
both, used in such test.
(g) The determination and treatment of the Contribution l~ercentage
Amounts of any Participant shall satisfy such other requirements
as may be prescribed by the Secretary of the Treasury.
4B. LIMITATIONS ON ALLOCATIONS
4B.1 DEFINITIONS. The following definitions apply for purposes of
Section 4B.
(a) ANNUAL ADDITIONS. The term Annual Additions means the sum of the
following amounts credited to a Participants Account for the
Limitation Year:
(1) All contributions made by the Employer which shall include:
Elective Deferral Contributions;
Money Purchase Pension Contributions
Matching Contributions;
Nonelective Contributions;
Qualified Nonelective Contributions;
Qualified Matching Contributions;
Prior Employer Contributions;
(2) Employee Contributions;
(3) Forfeitures; and
(4) Amounts allocated after March 31, 1984 to an individual
medical account, as defined in Code section 415(1)(2), 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
post-retirement medical benefits allocated to the separate
account of a Key Employee as defined in Code section
419A(d)(3), under a welfare benefit fund as defined in Code
section 419(e), maintained by the Employer, are treated as
Annual Additions to a defined contribution plan; and
(5) Allocations under a simplified employee pension plan.
For this purpose, any Excess Annual Additions applied under
Sections 4C.3 or 4B.5(f) in the Limitation Year to reduce
Employer contributions will be considered Annual Additions for
such Limitation Year.
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(b) COMPENSATION. As elected by the Employer in the Adoption
Agreement, the term Compensation means all of a Participant's:
(1) Wages, Tips, and Other Compensation Box on Form W-2.
(Information required to be reported under Code sections
6041, 6051 and 6052). Wages within the meaning of Code
section 3401(a) and all other payments of compensation to an
Employee by the Employer (in the course of the Employer's
trade or business) for which the Employer is required to
furnish the Employee a written statement under Code sections
6041(d), 6051(a)(3), and 6052. Compensation must be
determined without regard to any rules under Code section
3401(a) that limit the remuneration included in wages based
on the nature or location of the employment or the services
performed (such as the exception for agricultural labor in
Code section 3401(a)(2)).
(2) Section 3401(a) wages. Wages as defined in Code 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 Code section
3401(a)(2)).
(3) 415 safe-harbor compensation. 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 includable in gross income
(including, but not limited to, commissions paid salesmen,
compensation for services on the basis of a percentage of
profits, commissions on insurance premiums, tips, bonuses,
fringe benefits, and reimbursements or other expense
allowances under a nonaccountable plan as described in Code
section 1.62-2(c)), and excluding the following:
(A) Employer contributions to a plan of deferred
compensation which are not includable 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;
(B) Amounts realized from the exercise of a non-qualified
stock option, or when restricted stock (or property)
held by the Employee either becomes freely transferable
or is no longer subject to a substantial risk of
forfeiture;
(C) Amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified stock
option; and
(D) 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
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annuity contract described in Code section 403(b)
(whether or not the contributions are actually
excludable from the gross income of the Employee).
For any Self-Employed Individual, Compensation means Earned
Income.
For Limitation Years beginning after December 31, 1991, for
purposes of applying the limitations of this Section 4B,
Compensation for a Limitation Year is the Compensation actually
paid or includable in gross income during such Limitation Year.
Notwithstanding the preceding sentence, Compensation for a
Participant in a defined contribution plan who is permanently and
totally disabled (as defined in Code section 22(e)(3)) is the
Compensation such Participant would have received for the
Limitation Year if the Participant had been paid at the rate of
Compensation paid immediately before becoming permanently and
totally disabled; such imputed Compensation for the disabled
Participant may be taken into account only if the Participant is
not a Highly Compensated Employee and contributions made on
behalf of such Participant are nonforfeitable when made.
(c) DEFINED BENEFIT FRACTION. The term Defined Benefit Fraction means
a fraction, the numerator of which is the sum of the
Participant's Projected Annual Benefits under all the defined
benefit plans (whether or not terminated) maintained by the
Employer, and the denominator of which is the lesser of 125
percent of the dollar limitation determined for the Limitation
Year under Code sections 41S(b) and (d), or 140 percent of the
Highest Average Compensation including any ad justments under
Code section 415(b).
Notwithstanding the above, if the Participant was a l~articipant
as of the first day of the 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 percent of
the sum of the annual benefits under such plans which the
Participant had accrued as of the later of the close of the last
Limitation Year beginning beforeJanuary 1, 1987, disregarding any
changes in the terms and conditions of the Plan after May S.
1986. The preceding sentence applies only if the defined benefit
plans individually and in the aggregate satisfied the
requirements of Code section 415 for all Limitation Years
beginning before January 1, 1987.
Notwithstanding the foregoing, for any Top-Heavy Plan Year, 100
shall be substituted for 125 unless the extra minimum allocation
is being made pursuant to the Employer's election in the Adoption
Agreement. However, for any Plan Year in which this Plan is a
Super Top-Heavy Plan, 100 shall be substituted for 125 in any
event.
(d) DEFINED CONTRIBUTION DOLLAR LIMITATION. The term Defined
Contribution Dollar Limitation means $30,000 or if greater,
one-fourth of the defined benefit dollar limitation set forth in
Code section 415(b)(1) as in effect for the Limitation Year.
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(e) DEFINED CONTRIBUTION FRACTION. The term Defined Contribution
Fraction means 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 Code section 419(e), individual medical accounts,
as defined in Code section 415(1)(2), and simplified employee
pension plans, as defined in Code section 408(k), 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 Code sections 415(b) and (d) in effect under Code section
415(c)(1)(A) or 35 percent of the Participant's Compensation for
such year.
If the Employee was a Participant as of the end of the first day
of the first Limitation Year beginning after December 31, 1986,
in one or more defined contribution plans maintained by the
Employer which were ire 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 beforeJanuary 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 lanuary 1, 1987.
Notwithstanding the foregoing, for any Top-Heavy Plan Year, 100
shall be substituted for 125 unless the extra minimum allocation
is being made pursuant to the Employer's election in the Adoption
Agreement. However, for any Plan Year in which this Plan is a
Super Top-Heavy Plan, 100 shall be substituted for 125 in any
event.
The Annual Additions for any Limitation Year beginning before
January 1, 1987 shall not be recomputed to treat all Employee
Contributions as Annual Additions.
(f) EMPLOYER. For purposes of this Section 4B, the term Employer
means the Employer that adopts this Plan, and all members of a
controlled group of corporations (as defined in Code section
414(b) as modified by section 415(h)), a group of commonly
controlled trades or businesses (as defined in Code section
414(c) as modified by section 415(h)) or affiliated service
groups (as defined in Code section 414(m)) of which the adopting
Employer is a part and any other entity required to be aggregated
with the Employer pursuant to regulations under Code section
414(o).
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(g) HIGHEST AVERAGE COMPENSATION. The term Highest Average
Compensation means the average Compensation for the three
consecutive Years of Service with the Employer that produces the
highest average. A Year of Service with the Employer is the
12-consecutive month period defined in Section 2A.5.
(h) LIMITATION YEAR. The term Limitation Year means a calendar year,
or the 12-consecutive month period elected by the Employer in the
Limitation Year section 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 1
2-consecutive month period, the new Limitation Year must begin on
a date within the Limitation Year in which the amendment is-made.
(i) MASTER OR PROTOTYPE PLAN. The term Master or Prototype Plan means
a plan the form of which is the subject of a favorable opinion
letter from the national office of the Internal Revenue Service.
(j) MAXIMUM PERMISSIBLE AMOUNT. The term Maximum Permissible Amount
means the maximum Annual Additions that may be contributed or
allocated to a l~articipant's Account under the plan for any
Limitation Year, which shall not exceed the lesser of:
(1) The Defined Contribution Dollar Limitation, or
(2) 25 percent of the T,articipant's Compensation for the
Limitation Year.
The Compensation limitation referred to in (2) above, shall not
apply to any contribution for medical benefits (within the
meaning of Code section 401(h) or 419A(f)(2)) which is otherwise
treated as Annual Additions under Code sections 415(1)(1) or
419A(d)(2).
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
(k) PROJECTED ANNUAL BENEFIT. The term Projected Annual Benefit means
the annual retirement benefit (ad lusted 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 lilac assuming:
(1) The Participant will continue employment until Normal
Retirement Age 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.
4B.2 BASIC LIMITATION. If the Participant does not participate in, and has
never participated in another qualified plan or welfare benefit fund
maintained by the Employer, as defined in Code section 419(e), or an
individual medical account, as defined in Code section 415(l)(2),
maintained by the Employer, or a simplified
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employee pension, as defined in Code section 408(k), maintained by the
Employer, which provides Annual Additions as defined in Section 4B.
1(a), 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 contributions 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.
4B.3 ESTIMATED MAXIMUM PERMISSIBLE AMOUNT. Prior to determining the
Participant's actual Compensation for the Limitation Year, the
Employer may determine the Maximum Permissible Amount for a
Participant on the basis of a reasonable estimation of the
Participant's Compensation for the Limitation Year, uniformly
determined for all Participants similarly situated.
4B.4 ACTUAL MAXIMUM PERMISSIBLE AMOUNT. As soon as administratively
feasible after the end of the Limitation Year, the Maximum Permissible
Amount for the Limitation Year will be determined on the basis of the
Participant's actual Compensation for the Limitation Year.
4B.5 PARTICIPANTS COVERED BY ANOTHER PROTOTYPE DEFINED CONTRIBUTION PLAN.
(a) This Section applies if, in addition to this Plan, the
Participant is covered under another qualified Master or
Prototype defined contribution Plan maintained by the Employer,
or a welfare benefit fund, as defined in Code section 419(e),
maintained by the Employer, or an individual medical account as
defined in Code section 415(1)(2), maintained by the Employer, or
a simplified employee pension plan, as defined in Code section
408(k), that provides Annual Additions as defined in Section 4B.
1 (a), during any Limitation Year. The Annual Additions which may
be credited to a Participant's Account under this Plan for any
such Limitation Year will not exceed the Maximum Permissible
Amount reduced by the Annual Additions credited to a
Participant's account under the other qualified Master and
Prototype defined contribution Plans, welfare benefit funds,
individual medical accounts, and simplified employee pension
plans for the same Limitation Year. If the Annual Additions with
respect to the Participant under other qualified Master and
Prototype defined contribution Plans, welfare benefit funds,
individual medical accounts, and simplified employee pension
plans maintained by the Employer are less than the Maximum
Permissible Amount and the Employer contributions that would
otherwise be contributed or allocated to the Participant's
Account under this Plan would cause the Annual Additions for the
Limitation Year to exceed this limitation, the amount contributed
or allocated will be reduced so that the Annual Additions under
all such plans and funds for the Limitation Year will equal the
Maximum Permissible Amount. If the Annual Additions with respect
to the Participant under such other qualified master and
prototype defined contribution plans, welfare benefit funds,
individual medical accounts, and simplified employee pension
plans, in the aggregate are equal to or greater than the Maximum
Permissible Amount, no amount will be contributed or allocated to
the Participant's Account under this Plan for the Limitation
Year.
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(b) Prior to determining the Participant's actual Compensation for
the Limitation Year, the Employer may determine the estimated
Maximum Permissible Amount for a Participant in the manner
described in Section 4B.3.
(c) 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.
(d) If, pursuant to Section 4B.5(c), or as a result of the allocation
of Forfeitures, a Participant's Annual Additions under this Plan
and such other plans would result in Excess Annual Additions as
defined in Section 4C.1(b) for a Limitation Year, the Excess
Annual Additions will be deemed to consist of the Annual
Additions last allocated, except that Annual Additions
attributable to a simplified employee pension plan 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.
(e) If Excess Annual Additions were allocated to a Participant on an
allocation date of this Plan which coincides with an allocation
date of another plan, the Excess Annual Additions attributed to
this Plan will be the product of:
(1) The total Excess Annual Additions allocated as of such date,
multiplied by
(2) 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 the other qualified Master or Prototype
defined contribution Plans.
(f) Any Excess Annual Additions attributed to this Plan will be
disposed of in the manner described in Section 4C.3.
4B.6 PARTICIPANTS COVERED BY NON-PROTOTYPE DEFINED CONTRIBUTION PLAN. If
the Participant is covered under another qualified defined
contribution plan maintained by the Employer which is not a Master or
Prototype Plan, Annual Additions which may be credited to the
Participant's Account under this Plan for any Limitation Year will be
limited in accordance with Section 4B.S as though the other plan were
a Master or Prototype Plan, unless the Employer provides other
limitations in the Limitations on Allocations section of the Adoption
Agreement.
4B.7 PARTICIPANTS COVERED BY DEFINED BENEFIT PLAN. If the Employer
maintains, or at any time maintained, a qualified defined benefit plan
covering any Participant in this Plan, the sum of the Participant's
Defined Benefit Plan Fraction and Defined Contribution Plan Fraction
will not exceed 1.0 in any Limitation Year. The Annual Additions which
may be credited to the Participant's Account under this Plan for any
Limitation Year will be limited in accordance with the Limitations on
Allocations section of the Adoption Agreement.
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4C. TREATMENT OF EXCESSES
4C.1 DEFINITIONS.
(a) EXCESS AGGREGATE CONTRIBUTIONS. The term Excess Aggregate
Contributions means, with respect to any Plan Year, the excess
of:
(1) The aggregate Contribution Percentage Amounts taken into
account in computing the ACP of Highly Compensated Employees
for such Plan Year, over
(2) The maximum Contribution Percentage Amounts permitted by the
ACP test (determined by reducing the Contribution Percentage
Amounts made on behalf of Highly Compensated Employees in
order of their Actual Contribution Ratios beginning with the
highest of such ratios). Such determination shall be made
after first determining Excess Elective Deferral
Contributions, pursuant to Section 4C.2(a) and then
determining Excess Contributions pursuant to Section 4C.4.
(b) EXCESS ANNUAL ADDITIONS. The term Excess Annual Additions means
the excess of the Participant's Annual Additions for the
Limitation Year over the Maximum Permissible Amount.
(c) EXCESS CONTRIBUTIONS. The term Excess Contributions means, with
respect to any Plan Year, the excess of:
(1) The aggregate Deferral Percentage Amounts taken into account
in computing the ADP of Highly Compensated Employees for
such Plan Year, over
(2) The maximum Deferral Percentage Amounts permitted by the ADP
test (determined by reducing the Deferral Percentage Amounts
made on behalf of Highly Compensated Employees in order of
their Actual Deferral Ratios, beginning with the highest of
such ratios).
(d) EXCESS ELECTIVE DEFERRAL CONTRIBUTIONS. The term Excess Elective
Deferral Contributions means those Elective Deferral
Contributions that are includable in a Participant's gross income
under Code section 402(g) to the extent such Participant's
Elective Deferral Contributions for a taxable year exceed the
dollar limitation under such Code section. Excess Elective
Deferral Contributions shall be treated as Annual Additions under
the Plan pursuant to Section 4B, unless such amounts are
distributed in accordance with the provisions of Section 4C.2(a),
below.
4C.2 EXCESS ELECTIVE DEFERRAL CONTRIBUTIONS.
(a) In the event that Elective Deferral Contributions made during a
calendar year exceed the limit specified in Section 2C.1(j)(4),
then the Excess Elective Deferral Coritributions, plus any income
and minus any loss allocable thereto, shall be distributed to the
Participant by the April 15 following the calendar year in which
such amount was contributed, provided that the Participant
notifies the Plan Administrator no later than 30 days in advance
of his intent to withdraw such Excess Elective Deferral
Contributions, or is deemed to notify the Plan Administrator. A
Participant is deemed to notify the Plan Administrator of any
Excess Elective Deferral Contributions that arise by taking into
account only
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those Elective Deferrals made to this Plan and any other plans of
this Employer. The spousal consent provisions of Section 3C shall
not apply to any distribution of Excess Elective Deferral
Contributions.
(b) Excess Elective Deferral Contributions shall be ad lusted for any
income or loss for the Employee's tax year. The income or loss
allocable to excess Elective Deferral Contributions is an amount
determined by multiplying the sum of the income or loss allocable
to the Participant's Elective Deferral Contribution account for
the taxable year by a fraction, the numerator of which is such
Participant's Excess Elective Deferral Contributions for the
taxable year, and the denominator of which is equal to the sum of
the Participant's Account balance attributable to Elective
Deferral Contributions as of the beginning of the taxable year
plus the Participant's Elective Deferral Contributions for the
taxable year. Income for the gap period (the period from the end
of the taxable year to the date of distribution) shall not be
allocated to Excess Elective Deferral Contributions.
(c) Matching Contributions, as defined in Section 1.35, that are
attributable to Excess Elective Deferral Contributions shall be
forfeited, and as such, shall be applied to reduce Employer
contributions or pay Plan expenses.
4C.3 EXCESS ANNUAL ADDITIONS. If, pursuant to Section 4B.4 or as a result
of the allocation of Forfeitures, there are Excess Annual Additions,
the excess will be disposed of using any of the following methods:
(a) Employee Contributions or Elective Deferral Contributions or
both, to the extent they would reduce the Excess Annual
Additions, will be returned to the Participant. The Contributions
returned in accordance with the preceding shall include any gains
or losses attributable to such Contributions.
Employee Contributions so returned will be disregarded with
respect to the ACP test. Elective Deferral Contributions so
returned will be disregarded with respect to the elective
deferral limitation described in Section 2C.1(j)(4) of the Plan
and the ADP test.
(b) If, after the application of paragraph (a), Excess Annual
Additions still exist and the Participant is covered by the Plan
at the end of the Limitation Year, the Excess Annual Additions in
the Participant's Account, other than Employee Contributions and
Elective Deferral Contributions, 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), Excess Annual
Additions still exist and the Participant is not covered by the
Plan at the end of a Limitation Year, the Excess Annual Additions
will be held unallocated in a suspense account. The suspense
account will be applied to reduce future Employer contributions
(including allocation of any Forfeiture) 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 the
Limitation Year pursuant to this Section, it will not participate
in the allocation of the Trust or Insurance Company's gains and
losses. If a suspense account is in
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existence at any time during a particular Limitation Year, all
amounts in the suspense account must be allocated and reallocated
to the Participants' Account before any Employer or Employee
Contributions may be made to the Plan for that Limitation Year.
Except as provided in Section 4C.3(a), Excess Annual Additions
may not be distributed to Participants or former Participants.
4C.4 EXCESS CONTRIBUTIONS.
(a) Notwithstanding any other provision of this Plan, Excess
Contributions, plus any income and minus any loss allocable
thereto, shall be distributed no later than the last day of each
Plan Year to Participants to whose Participants' accounts such
Excess Contributions were allocated for the preceding Plan Year.
If such excess amounts are distributed more than 2-1/2 months
after the last day of the Plan Year in which such excess amounts
arose, a ten 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.
The distribution of Excess Contributions made to the family
members of a family group that was combined for purposes of
determining a Highly Compensated Employee's Actual Deferral Ratio
shall be allocated among the family members in proportion to the
Deferral Percentage Amounts (including any amounts required to be
taken into account under Sections 4A.3(a) and (b) of the Plan) of
each family member that is combined to determine the Actual
Deferral Ratio.
(b) Excess Contributions shall be treated as Annual Additions, as
defined in Section 4B.1, under the Plan in the Limitation Year in
which they arose.
(c) Excess Contributions shall be adjusted for any income or loss for
the Plan Year. The income or loss allocable to Excess
Contributions is an amount determined by multiplying the sum of
the income or loss allocable to the Participant's Account for
Deferral Percentage Amounts for the Plan Year, by a fraction, the
numerator of which is such Participant's Excess Contributions for
the Plan Year and the denominator of which is equal to the sum of
the Participant's Account balance attributable to Deferral
Percentage Amounts as of the beginning of the Plan Year plus the
Participant's Deferral Percentage Amounts for the Plan Year.
income for the gap period (the period from the end of the Plan
Year to the date of distribution) shall not be allocated to
Excess Contributions.
(d) Excess Contributions shall be distributed from the Participant's
Account for Elective Contributions and Qualified Matching
Contributions (if applicable) in proportion to the Participant's
Elective Deferral 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 Account for Elective Contributions and
Qualified Matching Contributions.
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(e) Matching Contributions, as defined in Section 1.35, that are
attributable to Excess Contributions, shall be forfeited, and as
such, shall be applied to reduce Employer contributions or pay
Plan expenses.
4C.5 EXCESS AGGREGATE CONTRIBUTIONS.
(a) Notwithstanding any other provision of this Plan, Excess
Aggregate Contributions, plus any income and minus any loss
allocable thereto, shall be forfeited, if forfeitable, or if not
forfeitable, distributed no later than the last day of each Plan
Year to Participants to whose Participants' Accounts such Excess
Aggregate Contributions were allocated for the preceding Plan
Year. If such Excess Aggregate Contributions are distributed more
than 2-1/2 months after the last day of the Plan Year in which
such excess amounts arose, a ten percent excise tax will be
imposed on the Employer maintaining the Plan with respect to
those amounts.
The distribution of Excess Aggregate Contributions made to the
family members of a family group that was combined for purposes
of determining a Highly Compensated Employee's Actual
Contribution Ratio shall be allocated among the family members in
proportion to the Contribution Percentage Amounts (including any
amounts required to be taken into account under Sections 4A.5 (a)
and (b) of the Plan) of each family member that is combined to
determine the Actual Contribution Ratio.
(b) Excess Aggregate Contributions shall be treated as Annual
Additions, as defined in Section 4B.1, in the Limitation Year in
which they arose.
(c) Excess Aggregate Contributions shall be ad lusted for any income
or loss for the Plan Year. The income or loss allocable to Excess
Aggregate Contributions is an amount determined by multiplying
the sum of the income or loss allocable to the Participant's
Account for Contribution Percentage Amounts for the Plan Year by
a fraction, the numerator of which is such Participant's Excess
Aggregate Contributions for the Plan Year, and the denominator of
which is equal to the sum of the Participant's Account balance
attributable to Contribution Percentage Amounts as of the
beginning of the Plan Year plus the Participant's Contribution
Percentage Amounts for the plan Year. Income for the gap period
(the period from the end of the Plan Year to the date of
distribution) shall not be allocated to Excess Aggregate
Contributions.
(d) Excess Aggregate Contributions shall be forfeited, if
forfeitable, or distributed on a pro-rata basis from the
Participant's Account for Employee Contributions, Matching
Contributions, and Qualified Matching Contributions (and, if
applicable, the Participant's Qualified Nonelective Contributions
or Elective Deferral Contributions, or both).
(e) Forfeitures of Excess Aggregate Contributions shall be applied to
reduce Employer contributions or pay Plan expenses.
(f) Matching Contributions as defined in Section 1.3S that are
attributable to Excess Aggregate Contributions shall be
forfeited, and as such, shall be applied to reduce Employer
contributions or pay Plan expenses.
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ARTICLE V - PARTICIPANT PROVISIONS
5A. ANNUITY CONTRACT AND PARTICIPANT'S ACCOUNT
5A.1 PARTICIPANT'S ACCOUNT. A Participant's Account shall be maintained on
behalf of each Participant until such Account is distributed in
accordance with the terms of this Plan.
Each Participant shall have the exclusive authority to direct the
investment of Employee Contributions, Elective Deferral Contributions,
QVEC Contributions and Rollover Contributions, if applicable, from
among the investment options selected by the Employer.
If selected by the Employer in its Adoption Agreement, the
Participant, Beneficiary and/or Alternate Payee additionally shall
have the exclusive authority to direct the investment of contributions
made by the Employer from among the investment choices selected by the
Employer.
5A.2 INVESTMENT TRANSFERS. Each Participant, Beneficiary, and/or Alternate
Payee shall have the exclusive authority to direct the transfer of
amounts between the investment funds designated by the Employer,
attributable to his Employee Contributions, Elective Deferral
Contributions, QVEC Contributions and Rollover Contributions, if
applicable.
If the Employer selects in its Adoption Agreement to grant the
Participant exclusive authority to direct the investment of
contributions made by the Employer, the Participant, Beneficiary,
and/or Alternate Payee shall also have the exclusive authority to
transfer contributions made by the Employer from among the investment
choices selected by the Employer.
The transfer of amounts between investment funds shall be subject to
the rules of the investment funds in which the Participant's Account
is invested or is to be invested.
The Plan Administrator or the Participant, Beneficiary, and/or
Alternate Payee as the case may be, may change such amounts as often
as the Plan Administrator may allow in accordance with the terms of
the investment funds in which the Participant's Account is being
invested.
The ability of a Participant who is subject to the reporting
requirements of section 16(a) of the Securities and Exchange Act of
1934 (the "Act") to make withdrawals or investment changes involving
the Participant's Employer Stock Account may be restricted by the Plan
Administrator to comply with rules under section 16(b) of the Act.
5A.3 PARTICIPANT'S ACCOUNT VALUATION. A Participant's Account shall be
maintained on behalf of each Participant until such Account is
distributed in accordance with the terms of this Plan. At least once
per year, as of the last day of the Plan Year, each Participant's
Account shall be ad lusted, in the ratio that the Participant's
Account balance bears to all account balances invested into the same
investment vehicle, for any earnings, gains, losses, contributions,
withdrawals, expenses, and loans attributable to such Plan Year, in
order to obtain a new valuation of the Participants Account. The
assets of the Plan will be valued annually at fair market value as of
the last day of each Plan Year.
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5B. LIFE INSURANCE POLICIES
5B.1 OPTIONAL PURCHASE OF LIFE INSURANCE. If the Employer in its Adoption
Agreement shall permit the purchase of life insurance on the lives of
some or all Participants hereunder, each eligible Participant may
elect that a portion of the Contribution made on his behalf shall be
applied to the purchase of a Life Insurance Policy or Policies on his
life. The application for each Policy shall be signed by the
Participant and by the Trustee and shall conform to the requirements
of the Insurance Company, including any requested evidence of
insurability, and the requirements of this Section. All Life Insurance
Policies shall be issued so as to permit a common billing date. Any
Policy on the life of a Participant who can qualify for waiver of
premium thereunder and participant account contribution disability
benefits thereunder may include such benefits if applied for by the
Participant. The Plan Administrator may adopt reasonable rules
regarding the purchase of Life Insurance Policies provided such rules
are administered in a consistent and nondiscriminatory manner. No
application shall be made hereunder for any Life Insurance Policy on
the life of a Participant acceptable to the Insurance Company at
standard premium rates for a face amount of less that $1,000 for the
first, or any additional Policy issued on the Participant's life.
5B.2 PREMIUMS ON LIFE INSURANCE POLICIES. The premiums on all Life
Insurance Policies on the life of a Participant shall be paid from the
portion of his Participant's Account attributable to contributions
made by the Employer, to the extent sufficient therefor, otherwise in
one of the following manners:
(a) By a loan against the Participant's Policy or Policies, under the
automatic premium loan provision thereof, or
(b) By payment out of his Participant's Account.
If the Participant is not acceptable to the Insurance Company as a
standard risk at standard rates, a Policy with the same premium but a
lesser death benefit may be purchased.
5B.3 LIMITATIONS ON PREMIUMS. In no case shall the cumulative total
premiums paid on all Policies held on the life of a Participant
hereunder exceed an amount equal to the applicable percentage set
forth below of all Contributions (other than Employee Contributions)
and Forfeitures theretofore allocated or currently due on his behalf:
(a) 49% in the case of ordinary life insurance or similar policies.
(b) 2S% in the case of term insurance policies or a combination of
policies, with premiums on ordinary life insurance or similar
policies being given half weight.
If such cumulative total premiums would otherwise exceed this amount,
the necessary steps to avoid this result shall be taken by reduction
of the Participant's life insurance coverage by changing all or a
portion of his coverage to paid-up life insurance or by selling the
excess portion to the Participant.
5B.4 DISPOSAL. A Participant who no longer wishes to have any part of his
allocable share of Contributions used to pay the premiums for any Lite
Insurance Policy or Policies may withdraw a prior election by written
notice to the Trustee to that
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effect. Any Policy shall be disposed of in accordance with its
provisions as the Trustee shall direct.
5B.5 RIGHTS UNDER POLICIES. Each Policy shall provide that the Trustee
shall have the right to receive any or all payments that may be due
during the Participant's lifetime. Any death benefit shall be payable
directly to the Beneficiary named in the Policy and the Participant
shall have the right, subject to the terms of Section 3C, either
directly or through the Trustee, to change the Beneficiary from time
to time and to elect settlement options under the policy for the
benefit of the Beneficiary. The Trustee shall have the right to
exercise all other options and privileges contained in the policy and
shall exercise such rights and privileges in a manner consistent with
the terms of the Plan.
5B.6 LOANS. No loans shall be made against any of the Policies hereunder
either from the Insurance Company or any other source unless such
loans are made in order to pay amounts then due as premiums thereon.
5B.7 CONDITIONS OF COVERAGE. Except as may be otherwise provided in any
conditional or binding receipt issued by the Insurance Company, there
shall be no coverage and no death benefit payable under any Policy to
be purchased from the Insurance Company until such Policy shall have
been delivered and the premium therefor shall have been paid to the
Insurance Company as a premium for that Policy. Neither the Employer
nor the Trustee shall have any responsibility as to the effectiveness
of any Life Insurance Policy purchased from the Insurance Company
hereunder nor be under any liability or obligation to pay any amount
to any Participant or his Beneficiary by reason of any failure or
refusal by the Insurance Company to make such payment.
5B.8 POLICY NOT YET IN FORCE. If at the death of any Participant, the
Trustee shall be holding any amount intended for the purchase of any
Life Insurance Policy on the Participant's life, but coverage under
such Policy shall not yet be in force, the Trustee shall credit such
amount to the Participant's Account to be disposed of as a portion
thereof.
5B.9 VALUE OF POLICY. The value of any Policy on the life of a living
Participant for any purpose under this Plan shall be that amount which
the Insurance Company would pay upon surrender of such Policy in
accordance with its usual rules and practices.
5B.10 DIVIDENDS. If dividends are allowed on any Life Insurance Policy,
they shall be used to provide additional benefits under the Policy.
5B.11 DISTRIBUTION. No life insurance protection shall continue in force
under the Plan subsequent to a Participant's retirement or Termination
of Employment, whichever occurs first. As of such date, any Life
Insurance Policy shall be distributed to the Participant in accordance
with its terms and the terms of Section 3C.3.
5B.12 APPLICATION. The Trustee, if the Plan is trusteed, or custodian, if
the Plan has a custodial account, shall apply for and will be the
owner of any Life Insurance Policy purchased under the terms of this
Plan. The Life Insurance T'olicy(ies) must provide that proceeds will
be payable to the Trustee (or custodian, if applicable). However, the
Trustee (or custodian) shall be required to pay over all proceeds of
the Life Insurance Policy(ies) to the Participant's designated
Beneficiary in accordance with the distribution provisions of this
Plan. A Participant's Spouse will be the designated Beneficiary of the
proceeds in all circumstances unless a
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Qualified Election has been made in accordance with Section 3C.2(c),
Joint and Survivor Annuity Requirements, if applicable. Under no
circumstances shall the Trust (or custodial account) retain any part
of the proceeds.
In the event of any conflict between the provisions of this Plan and
any Life Insurance Policies or annuity contracts issued pursuant to
the Plan, the Plan provisions shall control.
5C. LOANS
5C.1 LOANS TO PARTICIPANTS. If the Employer has specified in its Adoption
Agreement that loans are permitted, then the Plan Administrator may
make a bona fide loan to a Participant, in an amount which, when added
to the outstanding balance of all other loans to the Participant from
all qualified plans of the Employer, does not exceed the lesser of
$50,000 reduced by the excess of the Participant's highest outstanding
loan balance during the 12 months preceding the date on which the loan
is made over the outstanding loan balance on the date the new loan is
made, or 50% of the Participant's Vested interest in his Participant's
Account excluding amounts attributable to QVEC Contributions.
Notwithstanding any provision in this paragraph to the contrary, loans
may not exceed a Participant's Vested Interest attributable to such
contributions.
In the event of default, foreclosure on the note and attachment of
security will not occur until a distributable event occurs in the
Plan.
No loans will be made to any Shareholder-Employee or Owner-Employee or
to family members of Shareholder-Employees or Owner-Employees, as
defined in Code section 2G7(c)(4).
The loan shall be made under such terms, security interest, and
conditions as the Plan Administrator deems appropriate, provided,
however, that:
(a) Loans shall be made available to all Participants and
parties-in-interest (as defined in ERISA and including Employees
and Beneficiaries), on a reasonably equivalent basis.
(b) Loans shall not be made available to Highly Compensated Employees
on a basis greater than the basis made available to other
Employees.
(c) Loans must bear a reasonable rate of interest.
(d) Loans are adequately secured.
(e) Unless the provisions of Section 3C.6 apply to a Participant,
loans may be made only after a Participant obtains the consent of
his Spouse, if any, to use his Participant's Account as security
for the loan. Spousal consent shall be obtained no earlier than
the beginning of the 90-day period that ends on the date on which
the loan is to be so secured. The consent must be in writing,
must acknowledge the effect of the loan, and must be witnessed by
a Plan representative or notary public. Such consent shall
thereafter be binding with respect to the consenting Spouse or
any subsequent Spouse with respect to that loan. A new consent
shall be required if the Participant's Account is used for
renegotiation, extension, renewal or other revision of the loan.
(f) Loans must be made in accordance with and sub ject to all of the
provisions of this Section SC.
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If a valid spousal consent has been obtained in accordance with
(e), then, notwithstanding any other provision of this Plan, the
portion of the Participant's Vested Interest 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 Interest in his Participant's Account (determined without
regard to the preceding sentence) is payable to the surviving
Spouse, then the Participant's Account shall be ad lusted by
first reducing the Vested Interest by the amount of the security
used as repayment of the loan, and then determining the benefit
payable to the surviving Spouse.
5C.2 LOAN PROCEDURES. The Plan Administrator shall establish a written
set of procedures, set forth in the summary plan description or
any other established set of procedures, which becomes a part of
such Plan by which all loans will be administered. Such rules,
which are incorporated herein by reference, will include, but not
be limited to the following:
(a) The person or persons authorized to administer the loan
program, identified by name or position;
(b) The loan application procedure;
(c) The basis for approving or denying loans;
(d) Any limits on the types of loans permitted;
(e) The procedure for determining a "reasonable" interest rate;
(f) Acceptable collateral;
(g) Default conditions; and
(h) Steps which will be taken to preserve Plan assets in the
event of default.
5D. PARTICIPANTS' RIGHTS
5D.1 GENERAL RIGHTS OF PARTICIPANTS AND BENEFICIARIES. The loan is
established and the Plan or Trust assets are held for the exclusive
purpose of providing benefits for such Employees and their
Beneficiaries as have qualified to participate under the terms of the
Plan.
5D.2 FILING A CLAIM FOR BENEFITS. A Participant or Beneficiary, or the
Employer acting in his behalf, shall notify the Plan Administrator of
a claim of benefits under the Plan. Such request shall be in writing
to the lilac Administrator and shall set forth the basis of such claim
and shall authorize the Plan Administrator to conduct such
examinations as may be necessary to determine the validity of the
claim and to take such steps as may be necessary to facilitate the
payment of any benefits to which the Participant or Beneficiary may be
entitled under the terms of the Plan.
5D.3 DENIAL OF CLAIM. Whenever a claim for benefits by any Participant or
Beneficiary has been denied by a Plan Administrator, a written notice,
prepared in a manner calculated to be understood by the Participant,
must be provided, setting forth (1) the specific reasons for the
denial; (2) the specific reference to pertinent Plan provisions on
which the denial is based; (3) a description of any additional
material or information necessary for the claimant to perfect the
claim
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and an explanation of why such material or information is necessary;
and (4) an explanation of the Plan's claim review procedure.
5D.4 REMEDIES AVAILABLE TO PARTICIPANTS. A Participant or Beneficiary (1)
may request a review by a Named Fiduciary, other than the Plan
Administrator, upon written application to the Plan; (2) may review
pertinent Plan documents; and (3) may submit issues and comments in
writing to a Named Fiduciary. A Participant or Beneficiary shall have
60 days after receipt by the claimant of written notification of a
denial of a claim to request a review of a denied claim.
A decision by a Named Fiduciary shall be made promptly and not later
than 60 days after the Named Fiduciary's receipt of a request for
review, unless special circumstances require an extension of the time
for processing in which case a decision shall be rendered as soon as
possible, but not later than 120 days after receipt of a request for
review. The decision on review by a Named Fiduciary shall be in
writing and shall include specific reasons for the decision, written
in a manner calculated to be understood by the claimant, and specific
references to the pertinent Plan provisions on which the decision is
based.
A Participant or Beneficiary shall be entitled, either in his own name
or in conjunction with any other interested parties, to bring such
actions in law or equity or to undertake such administrative actions
or to seek such relief as may be necessary or appropriate to compel
the disclosure of any required information, to enforce or protect his
rights, to recover present benefits due to him or to clarify his
rights to future benefits under the Plan.
5D.5 LIMITATION OF RIGHTS. Participation hereunder shall not grant any
Participant the right to be retained in the Service of the Employer or
any other rights or interest in the Plan or Trust fund other than
those specifically herein set forth.
5D.6 100% VESTED CONTRIBUTIONS. Each Participant, regardless of his length
of Service with the Employer, shall be fully vested (100%) at all
times in any portion of his Participant's Account attributable to the
following contributions, as applicable:
(a) Employee Contributions and earnings thereon;
(b) Elective Deferral Contributions and earnings thereon;
(c) Qualified Matching Contributions and earnings thereon;
(d) Qualified Nonelective Contributions and earnings thereon;
(e) Rollover Contributions and earnings thereon;
(f) QVEC Contributions and earnings thereon.
5D.7 REINSTATEMENT OF BENEFIT. In the event any portion of a benefit which
is payable to a Participant or a Beneficiary shall remain unpaid on
account of the inability of the Plan Administrator, after diligent
effort, to locate such Participant or Beneficiary, the amount so
distributable shall be treated as a Forfeiture under Section 3D. If a
claim is made by the Participant or Beneficiary for any benefit
forfeited under this Section, such benefit must be reinstated by the
Employer.
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5D.8 NON-ALIENATION. It is a condition of the Plan, and all rights of each
Participant shall be subject thereto, that no right or interest of any
Participant in the Plan shall be assignable or transferable in whole
or in part, either directly or by operation of law or otherwise,
including, but without limitation, execution, levy, garnishment,
attachment, pledge, bankruptcy or in any other manner, and no right or
interest of any Participant in the Plan shall be liable for or subject
to any obligation or liability of such Participant. The preceding
sentence shall not preclude the enforcement of a federal tax levy made
pursuant to Code section 6331 or the collection by the United States
on a judgement resulting from an unpaid tax assessment.
The preceding paragraph shall also apply to the creation, assignment,
or recognition of a right to any benefit payable with respect to a
Participant pursuant to a domestic relations order, unless such order
is determined to be a QDRO. A domestic relations order entered before
January 1, 1985 will be treated as a QDRO if payment of benefits
pursuant to the order has commenced as of such date, and may be
treated as a QDRO if payment of benefits has not commenced as of such
date, even though the order does not satisfy the requirements of Code
section 414(p).
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ARTICLE VI - OVERSEER PROVISIONS
6A. FIDUCIARY DUTIES AND RESI'ONSIBILITIES
6A.1 GENERAL FIDUCIARY STANDARD OF CONDUCT. Each Fiduciary of the Plan
shall discharge his duties hereunder solely in the interest of the
Participants and their Beneficiaries and for the exclusive purpose of
providing benefits to Participants and their Beneficiaries and
defraying reasonable expenses of administering the Plan. Each
Fiduciary shall act with the care, skill, prudence and diligence under
the circumstances that a prudent man acting in a like capacity and
familiar with such matters would use in conducting an enterprise of
like character and with like aims, in accordance with the documents
and instruments governing this Plan, insofar as such documents and
instruments are consistent with this standard.
6A.2 SERVICE IN MULTIPLE CAPACITIES. Any Person or group of Persons may
serve in more than one Fiduciary capacity with respect to this Plan,
specifically including service both as Trustee and Plan Administrator.
6A.3 LIMITATIONS ON FIDUCIARY LIABILITY. Nothing in this Plan shall be
construed to prevent any Fiduciary from receiving any benefit to which
he may be entitled as a Participant or Beneficiary in this Plan, so
long as the benefit is computed and paid on a basis which is
consistent with the terms of this Plan as applied to all other
Participants and Beneficiaries. Nor shall this Plan be interpreted to
prevent any Fiduciary from receiving any reasonable compensation for
services rendered, or for the reimbursement of expenses properly and
actually incurred in the performance of his duties with the Plan;
except that no Person so serving who already receives full-time pay
from an Employer shall receive compensation from this Plan, except for
reimbursement of expenses properly and actually incurred.
6A.4 INVESTMENT MANAGER. If an Investment Manager has been appointed
pursuant to Section 6B.7 of this Plan, he is required to acknowledge
in writing that he has undertaken a Fiduciary responsibility with
respect to the Plan. The Insurance Company's liability as a Fiduciary
is limited to that arising from its management of any assets of the
Plan held by the Insurance Company in its separate accounts.
6B. THE PLAN ADMINISTRATOR
6B.1 DESIGNATION AND ACCEPTANCE. The Employer shall designate a Person or
Persons to serve as Plan Administrator under the Plan and such
Persons, by joining in the execution of the Adoption Agreement,
accepts such appointment and agrees to act in accordance with the
terms of the Plan.
6B.2 DUTIES AND RESPONSIBILITY. The Plan Administrator shall administer the
Plan for the exclusive benefit of the Participants and their
Beneficiaries in a nondiscriminatory manner subject to the specific
terms of the Plan. The Plan Administrator shall perform all such
duties as are necessary to operate, administer, and manage the Plan in
accordance with the terms thereof. This shall include notification to
the Insurance Company of any adjustment made to a Participant's
Account as a result of Excess Annual Additions as defined in Section
4C.l(b).
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The Plan Administrator shall comply with the regulatory provisions of
ERISA and shall furnish to each Participant (a) a summary plan
description, (b) upon written request, a statement of his total
benefits accrued and his vested benefits if any and (c) the
information necessary to elect the benefits available under the Plan.
The Plan Administrator shall also file the appropriate annual reports
and any other data which may be required by appropriate regulatory
agencies.
Furthermore, the Plan Administrator shall take the necessary steps to
notify the appropriate interested parties whenever an application is
made to the Secretary of the Treasury for a determination letter in
accordance with Code section 7476 as amended.
6B.3 SPECIAL DUTIES. If the Employer that adopts this Plan is not the Plan
Administrator, and the Plan provides for either Employee Contributions
or Matching Contributions to be made, the Plan Administrator shall:
(a) Maintain records that enable it to monitor the adopting
Employer's compliance with the requirements of Code section 401
(m);
(b) Perform the ACI' test, as described in Section 4A.4, for the
Employer on an annual basis; and
(c) Notify the Employer if it is required to correct Excess Aggregate
Contributions.
6B.4 EXPENSES AND COMPENSATION. The expenses necessary to administer the
Plan shall be taken from Participants' Accounts unless paid by the
Employer, including but not limited to those involved in retaining
necessary professional assistance from an attorney, an accountant, an
actuary, or an investment advisor. Nothing shall prevent the Plan
Administrator from receiving reasonable compensation for services
rendered in administering this Plan, provided the Plan Administrator
is not a full-time Employee of any Employer adopting this Plan.
6B.5 INFORMATION FROM EMPLOYER. To enable the Plan Administrator to perform
his functions, the Employer shall supply full and timely information
to the Plan Administrator on all matters relating to this Plan as the
Plan Administrator may require.
6B.6 ADMINISTRATIVE COMMITTEE; MULTIPLE SIGNATURES. In the event that more
than one Person has been duly nominated to serve on the Administrative
Committee and has signified in writing the acceptance of such
designation, the signature(s) of one or more Persons may be accepted
by an interested party as conclusive evidence that the Administrative
Committee has duly authorized the action therein set forth and as
representing the will of and binding upon the whole Administrative
Committee. No Person receiving such documents or written instructions
and acting in good faith and in reliance thereon shall be obliged to
ascertain the validity of such action under the terms of this Plan.
The Administrative Committee shall act by a ma jority of its members
at the time in office, and such action may be taken either by a vote
at a meeting or in writing without a meeting.
6B.7 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. The Plan
Administrator, or any member of the Administrative Committee, may
resign at any time by delivering to the Employer a written notice of
resignation, to take effect at a date specified therein, which shall
not be less than 30 days after the delivery thereof, unless such
notice shall be waived.
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The Plan Administrator may be removed with or without cause by the
Employer by delivery of written notice of removal, to take effect at a
date specified therein, which shall be not less than thirty (30) days
after delivery thereof, unless such notice shall be waived.
The Employer, upon receipt of or giving notice of the resignation or
removal of the Plan Administrator, shall promptly designate a
successor Plan Administrator who must signify acceptance of this
position in writing. In the event no successor is appointed, the Board
of Directors of the Employer will function as the Administrative
Committee until a new Plan Administrator has been appointed and has
accepted such appointment.
6B.8 INVESTMENT MANAGER. The Plan Administrator may appoint, in writing, an
Investment Manager or Managers to whom is delegated the authority to
manage, acquire, invest or dispose of all or any part of the plan or
Trust assets. With regard to the assets entrusted to his care, the
Investment Manager shall provide written instructions and directions
to the Employer or Trustee, as applicable, who shall in turn be
entitled to rely upon such written direction. This appointment and
delegation shall be evidenced by a signed written agreement.
6B.9 DELEGATION OF DUTIES. The Plan Administrator shall have the power, to
the extent permitted by law, to delegate the performance of such
Fiduciary and non-Fiduciary duties, responsibilities and functions as
the Plan Administrator shall deem advisable for the proper management
and administration of the Plan in the best interests of the
Participants and their Beneficiaries.
6C. TRUST AGREEMENT
This agreement entered into by and among the Employer, the plan
Administrator and the Trustee pursuant to the Adoption Agreement completed
and signed by the Employer, the Plan Administrator and Trustee, hereby
establishes the Trust with the following provisions to form a part of and
implement the provisions of the Plan:
6C.1 CREATION AND ACCEPTANCE OF TRUST. The Trustee, by joining in the
execution of the Adoption Agreement, accepts the Trust hereby created
and agrees to act in accordance with the express terms and conditions
herein stated.
6C.2 TRUSTEE CAPACITY; CO-TRUSTEES. The Trustee may be a Bank, Trust
Company or other corporation possessing trust powers under applicable
State or Federal law or one or more individuals or any combination
thereof.
When two or more persons serve as Trustee, they are specifically
authorized, by a written agreement between themselves, to allocate
specific responsibilities, obligations or duties among themselves. An
original copy of such written agreement is to be delivered to the Plan
Administrator.
6C.3 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR TRUSTEE. Any Trustee
may resign at any time by delivering to the plan Administrator a
written notice of resignation, to take effect at a date specified
therein, which shall not be less than 30 days after the delivery
thereof, unless such notice shall be waived.
The Trustee may be removed with or without cause by the Board of
Directors by delivery of a written notice of removal, to take effect
at a date specified therein, which shall not be less than 30 days
after delivery thereof, unless such notice shall be waived.
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In the case of the resignation or removal of a Trustee, the Trustee
shall have the right to a settlement of its account, which may be
made, at the option of the Trustee, either (1) by judicial settlement
in an action instituted by the Trustee in a court of competent
jurisdiction, or (2) by written agreement of settlement between the
Trustee and the Plan Administrator.
Upon such settlement, all right, title and interest of such Trustee in
the assets of the Trust and all rights and privileges under this
Agreement theretofore vested in such Trustee shall vest in the
successor Trustee, and thereupon all future liability of such Trustee
shall terminate; provided, however, that the Trustee shall execute,
acknowledge and deliver all documents and written instruments which
are necessary to transfer and convey the right, title and interest in
the Trust assets, and all rights and privileges to the successor
Trustee.
The Board of Directors, upon receipt of notice of the resignation or
removal of the Trustee, shall promptly designate a successor Trustee,
whose appointment is subject to acceptance of this Trust in writing
and shall notify the Insurance Company in writing of such successor
Trustee.
6C.4 TAXES, EXPENSES AND COMPENSATION OF TRUSTEE. The Trustee shall deduct
from and charge against the Trust fund any taxes paid by it which may
be imposed upon the Trust fund or the income thereof or which the
Trustee is required to pay with respect to the interest of any person
therein.
The Employer shall pay the Trustee annually its expenses in
administering the Trust and a reasonable compensation for its service
as Trustee hereunder if the Trustee is not an Employee of the Plan, at
a rate to be agreed upon from time to time. The reasonable
compensation shall include that for any extraordinary services.
6C.5 TRUSTEE ENTITLED TO CONSULTATION. The Trustee shall be entitled to
advice of counsel, which may be counsel for the Plan or the Employer,
in any case in which the Trustee shall deem such advice necessary.
With the exception of those powers and duties specifically allocated
to the Trustee by the express terms of this Plan, it shall not be the
responsibility of the Trustee to interpret the terms of the Plan or
Trust and the Trustee may request, and is entitled to receive guidance
and written direction from the Plan Administrator on any point
requiring construction or interpretation of the Plan documents.
6C.6 RIGHTS, POWERS AND DUTIES OF TRUSTEE. The Trustee shall have the
following rights, powers, and duties:
(a) The Trustee shall be responsible for the safekeeping and
administering of the assets of this Plan and Trust in accordance
with the provisions of this Agreement and any amendments thereto.
The duties of the Trustee under this Agreement shall be
determined solely by the express provisions of this Agreement and
no other further duties or responsibilities shall be implied.
Subject to the terms of this Plan and Trust, the Trustee shall be
fully protected and shall incur no liability in acting in
reliance upon the written instructions or directions of the Plan
Administrator or a duly designated Investment Manager or any
other Named Fiduciary.
(b) The Trustee shall have all powers necessary or convenient for the
orderly and efficient performance of its duties hereunder,
including but not limited to those specified in this Section. The
Trustee may appoint one or more administrative agents or contract
for the performance of such
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administrative and service functions as it may deem necessary for
the effective installation and operation of the Plan and Trust.
(c) The Trustee shall have the power to collect and receive any and
all monies and other property due hereunder and to give full
discharge and acquittance therefor; to settle, compromise or
submit to arbitration any claims, debts or damages due or owing
to or from the Trust; to commence or defend suits or legal
proceedings wherever, in its judgment, any interest of the Trust
requires it; and to represent the Trust in all suits or legal
proceedings in any court of law or equity or before any other
body or tribunal. It shall have the power generally to do all
acts, whether or not expressly authorized, which the Trustee in
the exercise of its Fiduciary responsibility may deem necessary
or desirable for the protection of the Trust and the assets
thereof.
(d) The Trustee shall make application to the Insurance Company for
the Annuity Contract required hereunder and shall take all
necessary steps to obtain any Life Insurance Policies elected on
the lives of Participants hereunder. In applying for the Annuity
Contract, the Trustee may indicate that, unless it directs the
Insurance Company otherwise, it shall be entitled to receive all
cash payments for further distribution to Participants and
Beneficiaries.
(e) The Trustee may temporarily hold cash balances and shall be
entitled to deposit any such funds received in a bank account or
bank accounts in the name of the Trust in any bank or banks
selected by the Trustee, including the banking department of the
Trustee, pending disposition of such funds in accordance with the
Trust. Any such deposit may be made with or without interest.
(f) The Trustee shall obtain and deal with any Life Insurance
Policies or other assets of this Trust held or received under
this Plan only in accordance with the written directions from the
Plan Administrator. The Trustee shall be under no duty to
determine any facts or the propriety of any action taken or
omitted by it in good faith pursuant to instructions from the
Plan Administrator.
(g) All contributions made to the Trust fund under this Plan shall be
paid by the Trustee to the Insurance Company under the Annuity
Contract within 30 days after the date such contributions were
due under the Plan. However, in lieu of holding any contributions
made to the Trust fund, the Trustee may direct that all such
contributions be made directly to the Insurance Company under the
Annuity Contract or any Life Insurance Policy. The Employer shall
keep the Trustee informed of all contributions made directly to
the Insurance Company in accordance with the Trustee's
instructions.
(h) If the whole or any part of the Trust shall become liable for the
payment of any estate, inheritance, income or other tax which the
Trustee shall be required to pay, the Trustee shall have full
power and authority to pay such tax out of any monies or other
property in its hands for the account of the person whose
interest hereunder is so liable. Prior to making any payment, the
Trustee may require such releases or other documents from any
lawful taxing authority as it shall deem necessary. The Trustee
shall not be liable
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for any nonpayment of tax when it distributes an interest
hereunder on instructions from the Plan Administrator.
(i) The Trustee shall keep a full, accurate and detailed record of
all transactions of the Trust which the Plan Administrator shall
have the right to examine at any time during the Trustee's
regular business hours. Following the close of the fiscal year of
the Trust, or as soon as practical thereafter, the Trustee shall
furnish the Plan Administrator with a statement of account. This
account shall set forth all receipts, disbursements and other
transactions effected by the Trustee during said year.
The Plan Administrator shall promptly notify the Trustee in
writing of its approval or disapproval of the account. The Plan
Administrator's failure to disapprove the account within 60 days
after receipt shall be considered an approval. The approval by
the Plan Administrator shall be binding as to all matters
embraced in any statement to the same extent as if the account of
the Trustee had been settled by judgment or decree of a court of
competent jurisdiction under which the Trustee, Plan
Administrator, Employer and all persons having or claiming any
interest in the Trust were parties; provided, however, that the
Trustee may have its account judicially settled if it so desires.
(j) If, at any time, there shall be a dispute as to the person to
whom payment or delivery of monies or property should be made by
the Trustee, or regarding any action to be taken by the Trustee,
the Trustee may postpone such payment, delivery or action,
retaining the funds or property involved, until such dispute
shall have been resolved in a court of competent jurisdiction or
the Trustee shall have been indemnified to its satisfaction or
until it has received written direction from the Plan
Administrator.
(k) Anything in this instrument to the contrary notwithstanding, it
shall be understood that the Trustee shall have no duty or
responsibility with respect to the determination of matters
pertaining to the eligibility of any Employee to become or remain
a Participant hereunder, the amount of benefit to which any
Participant or Beneficiary shall be entitled hereunder, all such
responsibilities being vested in the Plan Administrator. The
Trustee shall have no duty to collect any contribution from the
Employer and shall not be concerned with the amount of any
contribution nor the application of any contribution formula.
6C.7 EVIDENCE OF TRUSTEE ACTION. In the event that the Trustee comprises
two or more Trustees, then those Trustees may designate one such
Trustee to transmit all decisions of the Trustee and to sign all
necessary notices and other reports on behalf of the Trustee. All
notices and other reports bearing the signature of the individual
Trustee so designated shall be deemed to bear the signatures of all
the individual Trustees and all parties dealing with the Trustee are
entitled to rely on any such notices and other reports as authentic
and as representing the action of the Trustee.
6C.8 INVESTMENT POLICY. This Plan has been established for the sole purpose
of providing benefits to the Participants and their Beneficiaries. In
determining its investments hereunder, the Trustee shall take account
of the advice provided by the Plan Administrator as to funding policy
and the short and long-range needs
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of the Plan based on the evident and probable requirements of the
lilac as to the time benefits shall be payable and the requirements
therefor.
6C.9 PERIOD OF THE TRUST. If it shall be determined that the applicable
State law requires a limitation on the period during which the
Employer's Trust shall continue, then such Trust shall not continue
for a period longer than 21 years following the death of the last of
those Participants including future Participants who are living at the
Effective Date hereof. At least 180 days prior to the end of the
twenty-first year as described in the first sentence of this Section
the Employer, the Plan Administrator and the Trustee shall provide for
the establishment of a successor trust and transfer of Plan assets to
the Trustee. If applicable State law requires no such limitation, then
this Section shall not be operative.
6D. THE INSURANCE COMPANY
6D.1 DUTIES AND RESPONSIBILITIES. The Insurance Company shall issue the
Annuity Contract and any Policies hereunder and thereby assumes all
the duties and responsibilities set forth therein. The terms of the
Annuity Contract may be changed as provided therein without amending
this Plan, provided such changes shall conform (1) to the requirements
for qualification under Code section 401(a), as amended from time to
time and (2) to ERISA, as amended from time to time.
6D.2 RELATION TO EMPLOYER, PLAN ADMINISTRATOR AND PARTICIPANTS. The
Insurance Company may receive the statement of the Plan Administrator
or, if the Plan Administrator so designates, the Employer or the
Trustee, as conclusive evidence of any of the matters decided in the
Plan, and the Insurance Company shall be fully protected in taking or
permitting any action on the basis thereof and shall incur no
liability or responsibility for so doing. The Insurance Company shall
not be required to look into the terms of the Plan, to question any
action by the Employer or the Plan Administrator or any Participant
nor to determine that such action is properly taken under the Plan.
The insurance Company shall be fully discharged from any and all
liability with respect to any payment to any Participant hereunder in
accordance with the terms of the Annuity Contract or of any Policies
under the Plan. The Insurance Company shall not be required to take
any action contrary to its normal rules and practices.
6D.3 RELATION TO TRUSTEE. The Insurance Company shall not be required to
look into the terms of the Plan or question any action of the Trustee,
and the Insurance Company shall not be responsible for seeing that any
action of the Trustee is authorized by the terms hereof. The Insurance
Company shall be under no obligation to take notice of any change in
Trustee until evidence of such change satisfactory to the Insurance
Company shall have been given to the Insurance Company in writing at
its home office.
6E. ADOPTING EMPLOYER
6E.1 ELECTION TO BECOME ADOPTING EMPLOYER. With the consent of the Employer
and Trustee, if any, any employer, which along with the Employer is
included in a group of employers which constitute a controlled group
of corporations (as defined in Code section 414(b)) or which
constitutes trade or businesses (whether or not incorporated) which
are under common control (as defined in section 414(c)) or which
constitutes an affiliated service group as
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defined in section 414(m) and is identified as an Adopting Employer in
the Adoption Agreement, may adopt this Plan and all of its provisions.
6E.2 DEFINITION. Any employer eligible to adopt this Plan under the
provisions of Section 6E.1 and which adopts this Plan and all of its
provisions, shall be known as an Adopting Employer and shall be
included within the term Employer, as defined in Section 1.24.
6E.3 EFFECTIVE DATE OF PLAN. The effective date of the Plan for an Adopting
Employer on other than the date specified in the Adoption Agreement
shall be the first day of the Plan Year in which such Adopting
Employer adopts this Plan.
6E.4 FORFEITURES. Forfeitures of any nonvested portion of a l~articipant's
Account, as selected by the Employer in the Adoption Agreement, shall
be allocated only to other Participants who are employed by the
Adopting Employer who made the contributions to such Participant's
Account, or shall be used as a credit only for such Adopting Employer.
6E.5 CONTRIBUTIONS. All contributions made by an Adopting Employer shall be
determined separately by each Adopting Employer and shall be paid to
and held by the Plan for the exclusive benefit of the Employees of
such Adopting Employer and the Beneficiaries of such Employees,
subject to all the terms and conditions of this Plan. The Plan
Administrator shall keep separate books and records concerning the
affairs of each Adopting Employer and as to the accounts and credits
of the Employees of each Adopting Employer.
6E.6 EXPENSES. Subject to Section 6B.3, the expenses necessary to
administer the Plan of any Adopting Employer shall be taken from
accounts of Participants who are Employees of such Adopting Employer
unless paid for by such Adopting Employer. The expenses necessary to
administer the Plan for each Adopting Employer shall be determined by
the ratio of the value of all Participants' Accounts of such Adopting
Employers to the total value of all Participants' Accounts of each
Adopting Employer.
6E.7 SUBSTITUTION OF PLANS. Subject to the provisions of Section 7C, any
Adopting Employer shall be permitted to withdraw from its
participation in this Plan. The consent of the Employer or any other
Adopting Employer shall not be required.
6E.8 TERMINATION OF PLANS. If any Adopting Employer elects to terminate its
Plan pursuant to Sections 7B.4, 7B.5 and 7B.6, such termination shall
in no way affect the Plan of any other Adopting Employer.
6E.9 AMENDMENT. Amendment of this Plan by the Employer or any Adopting
Employer shall only be by the written consent of the Employer and each
and every Adopting Employer and with the consent of the Trustee, if
any, where such consent is necessary in accordance with the terms of
this Plan.
6E.10 PLAN ADMINISTRATOR'S AUTHORITY. The Plan Administrator shall have
authority to make any and all necessary rules or regulations, binding
upon all Adopting Employers and all Participants, to effectuate the
purpose of this Section 6E.
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ARTICLE VII - SPECIAL CIRCUMSTANCES WHICH MAY AFFECT THE PLAN
7A. TOP-HEAVY PROVISIONS
7A.1 DEFINITIONS.
(a) ANNUAL COMPENSATION. The term Annual Compensation means
Compensation as defined in the Compensation section 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 Code section
125, section 402(e)(3), section 402(h)(1)(B) or section 403(b).
(b) DETERMINATION DATE. The term Determination Date means for any
Plan Year subsequent to the first Plan Year, the last day of the
preceding Plan Year. For the first Plan Year of the Plan, it
means the last day of that year.
(c) DETERMINATION PERIOD. The term Determination Period means the
Plan Year containing the Determination Date and the four
preceding Plan Years.
(d) KEY EMPLOYEE. The term Key Employee means any Employee or former
Employee (and the Beneficiaries of such Employee) who at any time
during the Determination Period was:
(1) An officer of the Employer if such individual's Annual
Compensation exceeds 50 percent of the dollar limitation
under Code section 415(b)(1)(A); or
(2) An owner (or considered an owner under Code section 318) of
one of the ten largest interests in the Employer if such
individual's Annual Compensation exceeds 100 percent of the
dollar limitation under Code section 415(c)(1)(A); or
(3) A 5-percent owner of the Employer; or (4)A 1-percent owner
of the Employer who has Annual Compensation of more than
$150,000.
The determination of who is a Key Employee will be made in
accordance with Code section 416(1)(1) and related regulations.
(e) PERMISSIVE AGGREGATION GROUP. The term Permissive Aggregation
Group means the Required Aggregation Group of plans plus any
other plan or plans of the Employer which, when considered as a
group with the Required Aggregation Group, would continue to
satisfy the requirements of Code sections 401(a)(4) and 410.
(f) PRESENT VALUE. Present Value shall be based only on the interest
and mortality rates specified in the Adoption Agreement.
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(g) REQUIRED AGGREGATION GROUP. The term Required Aggregation Group
means (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 the Employer
which enables a plan described in (1) to meet the requirements of
Code sections 401(a)(4) or 410.
(h) TOP-HEAVY PLAN. For any Plan Year beginning after December 31,
1983, this Plan is Top-Heavy 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.
(i) TOP-HEAVY RATIO. The term Top-Heavy Ratio means:
(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 5-year period ending on the Determination
Date(s) has or has had accrued benefits, the Top-Heavy Ratio
for this Plan alone or for the Required or Permissive
Aggregation Group, as appropriate, is a fraction, the
numerator of which is the sum of the account balances of all
Key Employees as of the Determination Date(s) (including any
part of any account balance distributed in the 5-year period
ending on the Determination Date(s)), and the denominator of
which is the sum of all account balances (including any part
of any account balance distributed in the S-year period
ending on the Determination Date(s)), both computed in
accordance with Code section 416 and related regulations.
Both the numerator and denominator of the Top-Heavy Ratio
are increased to reflect any contribution not actually made
as of the Determination Date, but which is required to be
taken into account on that date under Code section 416 and
related regulations.
(2) If the Employer maintains one or more defined contribution
plans (including any simplified employee pension plans as
defined in Code section 408(k)) and the Employer maintains
or has maintained one or more defined benefit plans, which
during the 5-year period ending on the Determination Date(s)
has or has had any accrued benefits, the Top-Heavy Ratio for
any Required or Permissive Aggregation Group as appropriate
is a fraction, the numerator of which is the sum of account
balances under the aggregated defined contribution plan or
plans for all Key Employees, determined in accordance with
(1) above, and the Present Value of accrued benefits under
the aggregated defined benefit plan or plans
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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
Code section 416 and related regulations. The accrued
benefits under a defined benefit plan in both the numerator
and denominator of the Top-Heavy Ratio are increased for any
distribution of an accrued benefit made in the 5-year period
ending on the Determination Date.
(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 12-month period ending on the
Determination Date, except as provided in Code section 416
and the regulations thereunder for the first and second plan
years of a defined benefit plan. The account balances and
accrued benefits of a I,articipant (l) who is not a Key
Employee but who was a Key Employee in a prior year, or (ii)
who has not been credited with at least one Hour of Service
with any Employer maintaining the Plan at any time during
the 5-year period ending on the Determination Date shall be
disregarded. The calculation of the Top-Heavy Ratio, and the
extent to which distributions, rollovers, and transfers are
taken into account, will be made in accordance with Code
section 416 and the regulations thereunder. QVEC
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 Code
section 411(b)(1)(C).
(j) VALUATION DATE. The term Valuation Date means the date specified
in the Top-Heavy Provisions section of the Adoption Agreement as
of which account balances or accrued benefit are valued for
purposes of calculating the Top-Heavy Ratio.
7A.2 MINIMUM ALLOCATION. For any Plan Year in which the Plan is Top-Heavy,
the following will apply:
(a) Except as otherwise provided in (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 percent of such Participant's Compensation or in
the case where the Employer has no defined benefit plan which
designates this Plan to satisfy Code section 401, the largest
percentage of Employer contributions and Forfeitures, as limited
by Code section 401(a)(17), allocated on behalf of any Key
Employee for that year. The Minimum Allocation is determined
without
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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 (1) the Participant's failure to complete
1,000 Hours of Service (or any equivalent provided in the Plan),
or (2) the Participant's failure to make Required Employee
Contributions to the Plan, or (3) Compensation less than a stated
amount.
(b) For purposes of computing the Minimum Allocation, Compensation
shall mean Compensation as defined in the Compensation section of
the Adoption Agreement as limited by Code section 401(a)(17).
Notwithstanding the above, if elected by the Employer in the
Adoption Agreement, Compensation shall include any amount which
is contributed by the Employer pursuant to a salary reduction
agreement and which is not includable in the Employee's gross
income under Code sections 125, 401 (a)(8), 402(h) or 403(b).
(c) The provision in (a) above shall not apply to any Participant who
was not employed by the Employer on the last day of the Plan
Year.
(d) The provision in (a) above 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 the
Top-Heavy Provisions section 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 Code section 416(b)) may not be forfeited
under Code sections 411(a)(3)(B) or 411(a)(3)(D).
(f) Neither Elective Deferral Contributions nor Matching
Contributions may be taken into account for the purpose of
satisfying this Minimum Allocation Requirement.
7A.3 MINIMUM VESTING SCHEDULE. For any Plan Year in which this Plan is
Top-Heavy, one of the minimum vesting schedules as elected by the
Employer in the Adoption Agreement will automatically apply to the
Plan. The minimum vesting schedule applies to all benefits within the
meaning of Code section 411(a)(7) except those attributable to
Employee Contributions, Elective Deferral Contributions, QVEC
Contributions and Rollover Contributions including benefits accrued
before the effective date of Code section 416 and benefits accrued
before the Plan became Top-Heavy. Further, no decrease in a
Participant's nonforfeitable percentage may occur in the event the
Plan's status as Top-Heavy changes for any Plan Year. However, this
Section does not apply to the account balances of any Employee who
does not have an Hour of Service after the Plan has initially become
Top-Heavy. Such Employee's account balance attributable to Employer
contributions and Forfeitures will be determined without regard to
this Section.
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7B. AMENDMENT, TERMINATION OR MERGER OF THE PLAN
7B.1 AMENDMENT OF ELECTIONS UNDER ADOPTION AGREEMENT BY EMPLOYER. The party
elected by the Employer in the Adoption Agreement shall have the right
from time to time to change the elections under its Adoption Agreement
in a manner consistent with the Plan, provided that such amendment or
modification shall be in accordance with the Board of Director's
resolution, if applicable, that describes the amendment procedure and
provided further that the written amendment or modification is signed
by the party elected by the Employer in the Adoption Agreement. The
amendment must be accepted by the Sponsoring Organization. Upon any
such change in the Elections under the Adoption Agreement, the Plan
Administrator, the Trustee and the Sponsoring Organization shall be
furnished a copy thereof. 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 a top-heavy
vesting schedule, each Participant with at least 3 years of Service
with the Employer may elect, in writing, within a reasonable period
after the adoption of the amendment or change, to have the
nonforfeitable percentage computed under the Plan without regard to
such amendment or change. For Participants who do not have at least l
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.
The period during which the election must be made by the Participant
shall begin no later than the date the Plan amendment is adopted and
end no later than after the latest of the following dates:
(a) The date which is 60 days after the day the amendment is adopted;
(b) The date which is 60 days after the day the amendment becomes
effective; or
(c) The date which is 60 days after the day the Participant is issued
written notice of the amendment by the Employer or Plan
Administrator.
Such written election by a Participant shall be made to the Plan
Administrator, who shall then give written notice to the Insurance
Company.
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 Code section
412(c)(8). 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.
In the event of an amendment to a money purchase pension plan
(including a target benefit plan) to convert it to a profit sharing
plan (including a thrift plan or plan with a 401(k) feature), the
resulting plan shall separately account in each affected Participant's
Account for amounts attributable to coverage under the
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money purchase plan, including future earnings on such amounts. On and
after the date of such amendment, these money purchase plan amounts
shall remain subject to the money purchase plan restrictions on
distribution.
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 Code sections 415 or 416 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
requirements under Code section 412(d), will no longer participate in
this prototype plan and will be considered to have an individually
designed plan.
7B.2 AMENDMENT OF PLAN, TRUST, AND FORM OF ADOPTION AGREEMENT. The
Sponsoring Organization may amend this Plan and Trust, and the form of
the Adoption Agreement, and the Employer in adopting this Plan and the
Plan Administrator and the Trustee in accepting appointment as Plan
Administrator and as Trustee, shall be deemed to have consented to any
such amendment by executing the Adoption Agreement, provided that the
written consent of the Trustee and the Plan Administrator to any
change affecting their duties or responsibilities shall first be
obtained. Upon any such amendment by the Sponsoring Organization, the
Plan Administrator, the Employer and the Trustee shall be furnished
with a copy thereof.
7B.3 CONDITIONS OF AMENDMENT. Neither the Sponsoring Organization nor the
Employer shall make any amendment which would cause the Plan to lose
its status as a qualified plan within the meaning of Code section 401
(a).
7B.4 TERMINATION OF THE PLAN. The Employer intends to continue the Plan
indefinitely for the benefit of its Employees, but reserves the right
to terminate the Plan at any time by resolution of its Board of
Directors. Upon such termination, the liability of the Employer to
make Employer contributions hereunder shall terminate. The Plan shall
terminate automatically upon complete discontinuance of Employer
contributions hereunder, if the Plan is a profit sharing plan or a
thrift plan.
7B.5 FULL VESTING. Upon the termination or partial termination of the Plan,
or upon complete discontinuance of Employer contributions, the rights
of all affected Participants in and to the amounts credited to each
such Participant's Account and to any Policies on each Participant's
life shall be 100% vested and nonforfeitable. Thereupon, each
Participant shall receive a total distribution of his Participant's
Account (including any amounts in the Forfeiture Account allocated in
accordance with Section 7B.6) in accordance with the terms and
conditions of Section 2A. If the Plan terminates, the assets will be
distributed from the Trust as soon as administratively feasible.
7B.6 APPLICATION OF FORFEITURES. Upon the termination of the Plan, any
amount in the Forfeiture account which has not been applied as of such
termination to reduce the Employer contribution, or has not been
allocated as of such termination, shall be credited on a pro-rata
basis to each Participant's Account in the same manner as the last
Employer contribution made under the Plan.
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7B.7 MERGER WITH OTHER PLAN. In the case of any merger with or transfer of
assets or liabilities to any other qualified plan after September 2,
1974:
(a) The sum of the account balances in each plan shall equal the fair
market value (determined as of the date of the merger or transfer
as if the plan had then terminated) of the entire plan assets.
(b) The assets or liabilities of each plan shall be combined to form
the assets of the plan as merged (or transferred), and each
Participant in the plan merged (or transferred) shall have an
account balance equal to the sum of the account balances the
Participant had in the plans immediately prior to the merger (or
transfer).
(c) Immediately after the merger (or transfer), each Participant in
the plan merged (or transferred) shall have an account balance
equal to the sum of the account balances the Participant had in
the plans immediately prior to the merger (or transfer).
(d) Immediately after the merger (or transfer), each Participant in
the plan merged (or transferred) shall be entitled to the same
optional benefit forms as they were entitled to immediately prior
to the merger (or transfer).
(e) In the event of a merger (or transfer) of a money purchase
pension plan (including a target benefit plan) and a profit
sharing plan (including a thrift plan or plan with a 401(k)
feature), the resulting plan shall separately account in each
affected Participant's Account for amounts attributable to
coverage under the money purchase plan, including future earnings
on such amounts. On and after the date of such merger (or
transfer), these money purchase plan amounts shall remain subject
to the money purchase plan restrictions on distribution.
7B.8 TRANSFER FROM OTHER PLANS. If elected in the Adoption Agreement, the
Employer may cause all or any of the assets held in another qualified
pension or profit sharing plan meeting the requirements of Code
section 401 (a) to be transferred to the Plan pursuant to a merger or
consolidation of this Plan with such other plan or for any other
allowable purpose. Upon receipt of such assets, the Plan shall
separately account for such amounts in each affected Participant's
Account. Such transfer shall be made without regard to the Limitations
on Allocations imposed in Section 4B.
7B.9 TRANSFER TO OTHER PLANS. Upon written direction from the Employer, the
Plan shall transfer some or all of the assets held under this lean to
another qualified pension or profit sharing plan meeting the
requirements of Code section 401(a) and sponsored by the Employer.
7B.10 APPROVAL BY THE INTERNAL REVENUE SERVICE. Notwithstanding any other
provisions of this Plan, the Employer's adoption of this Plan is
subject to the condition precedent that the Employer's Plan shall be
approved and qualified by the Internal Revenue Service as meeting the
requirements of Code section 401 (a) and, if applicable, that the
Trust established hereunder shall be entitled to exemption under the
provisions of Code section 501 (a). In the event the Plan initially
fails to qualify and the Internal Revenue Service issues a final
ruling that the Employer's Plan or Trust fails to so qualify as of the
Effective Date, all liability of the Employer to make further Employer
contributions hereunder shall cease. The Insurance Company, Plan
Administrator, Trustee and any other Named Fiduciary shall be notified
immediately by the Employer, in writing, of such
-97-
<PAGE>
failure to qualify. Upon such notification, the value of the
Participants' Accounts, including the then value of any Life Insurance
Policies, shall be distributed in cash subject to the terms and
conditions of Section 5B. That portion of such distribution which is
attributable to l~articipant's Employee Contributions, if anyr shall
be paid to the Participant, and the balance of such distribution shall
be paid to the Employer. Upon the death of any Participant prior to
the actual surrender of a Life Insurance Policy or policies on his
life, the death benefit shall be payable to the T3articipant's
Beneficiary.
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.
7B.11 SUBSEQUENT UNFAVORABLE DETERMINATION. If the Employer is notified
subsequent to initial favorable qualification that the Plan is no
longer qualified within the meaning of Code section 401(a) or, if
applicable, that the Trust is no longer entitled to exemption under
the provisions of Code section 501(a), and if the Employer shall fail
within a reasonable time to make any necessary changes in order that
the Plan shall so qualify, the Participants' Accounts, including any
Life Insurance Policies or the values thereof, shall be fully vested
and nonforfeitable and shall be disposed of in the manner set forth in
Sections 7B.5 and 7B.6 above.
7C. SUBSTITUTION OF PLANS
7C.1 SUBSTITUTION OF PLANS. Subject to the provisions of Section 8.6, the
Employer may substitute an individually designed plan or a master or
another prototype plan for this Plan without terminating this lean as
embodied herein, and this shall be deemed to constitute an amendment
and restatement in its entirety of this Plan as heretofore adopted by
the Employer; provided, however that the Employer shall have certified
to the Insurance Company and the Trustee, if applicable, that this
Plan is being continued on a restated basis which meets the
requirements of Code section 401(a) and ERISA.
Any such changes shall be sub ject to the provisions of Sections 7B. 1
and 7B.2 of the Plan.
7C.2 TRANSFER OF ASSETS. Upon 90 days' written notification from the
Employer and the Trustee (unless the Insurance Company shall accept a
shorter period of notification) that a different plan meeting the
requirements set forth in Section 7C.1 above has been executed and
entered into by the Plan Administrator and the Employer, and after the
Insurance Company and the Trustee have been furnished the Employer's
certification in writing that the Employer intends to continue the
Plan as a qualified plan under Code section 401(a) and ERISA, the
Insurance Company shall transfer the value of all Participants'
Accounts under the Annuity Contract to the Trustee or such person or
persons as may be entitled to receive the same, in accordance with the
terms of the Annuity Contract. The Trustee shall likewise make a
similar transfer, including all Life Insurance Policies, or the values
thereof, to such person or persons as may be entitled to receive same.
The Insurance Company and the Trustee may rely fully on the
representations or directions of the Employer with respect to any such
transfer and shall be fully protected and discharged with respect to
any such transfer made in accordance with such representations,
instructions, or directions.
-98-
<PAGE>
7C.3 SUBSTITUTION FOR PRE-EXISTING MASTER OR PROTOTYPE PLAN. This Plan is
designed:
(a) For adoption by an Employer not previously covered under a master
or prototype plan sponsored by Connecticut General Life Insurance
Company; or
(b) For adoption by an Employer in substitution for a pre-existing
master or prototype plan sponsored by Connecticut General Life
Insurance Company.
If this Plan is adopted in substitution for such a pre-existing master
or prototype plan, it shall be deemed to amend the Employer's prior
Plan in its entirety effective as of the date specified in the
Employer's Adoption Agreement. The Employer's Plan as so amended shall
continue in full force and effect and no termination thereof shall be
deemed to have occurred.
7C.4 PARTIAL SUBSTITUTION OR PARTIAL TRANSFER OF THE PLAN OR ASSETS. In the
event this Plan is adopted as the result of a partial substitution or
partial transfer of the Plan or the assets under the prior Plan as a
result of a merger, spinoff, consolidation or any other allowable
purpose, the Plan and all transactions allowable under it are subject
to the rules established by the Employer to address the orderly
transition of the Plan or assets.
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<PAGE>
ARTICLE VIII - MISCELLANEOUS
8.1 NONREVERSION. This Plan has been adopted by the Employer for the
exclusive benefit of the Participants and their Beneficiaries. Except
as otherwise provided in Section 6C.4 and Section 8.6, under no
circumstances shall any funds contributed hereunder at any time revert
to or be used by the Employer, nor shall any such funds or assets of
any kind be used other than for the benefit of the Participants or
their Beneficiaries.
8.2 GENDER AND NUMBER. When necessary to the meaning hereof, and except
when otherwise indicated by the context, either the masculine or the
neuter pronoun shall be deemed to include the masculine, the feminine,
and the neuter, and the singular shall be deemed to include the
plural.
8.3 REFERENCE TO THE INTERNAL REVENUE CODE AND ERISA. Any reference herein
to any section of the Internal Revenue Code, ERISA, or to any other
statute or law shall be deemed to include any successor law of similar
import.
8.4 GOVERNING LAW. The Plan and Trust, if applicable, shall be governed
and construed in accordance with the laws of the state where the
Employer or Trustee has its principal office in the United States.
8.5 COMPLIANCE WITH THE INTERNAL REVENUE CODE AND ERISA. This Plan is
intended to comply with all requirements for qualification under the
Internal Revenue Code and ERISA, and if any provision hereof is
subject to more than one interpretation or any term used herein is
subject to more than one construction, such ambiguity shall be
resolved in favor of that interpretation or construction which is
consistent with the Plan being so qualified. If any provision of the
Plan is held invalid or unenforceable, such invalidity or
unenforceability shall not affect any other provisions, and this Plan
shall be construed and enforced as if such provision had not been
included.
8.6 CONTRIBUTION RECAPTURE. Notwithstanding any other provisions of this
Plan, (1) in the case of a contribution which is made by an Employer
by a mistake of fact, Section 8.1 shall not prohibit the return of
such contribution to the Employer within one year after the payment of
the contribution, and (2) if a contribution is conditioned upon the
deductibility of the contribution under Code section 404, then, to the
extent the deduction is disallowed, Section 8.1 shall not prohibit the
return to the Employer of such contribution (to the extent disallowed)
within one year after the disallowance of the deduction. The amount
which may be returned to the Employer is the excess of (1) the amount
contributed over (2) the amount that would have been contributed had
there not occurred a mistake of fact or a mistake in determining the
deduction. Earnings attributable to the excess contribution may not be
returned to the Employer, but losses attributable thereto must reduce
the amount to be so returned. Furthermore, if the withdrawal of the
amount attributable to the mistaken contribution would cause the
balance of any Participant's Account to be reduced to less than the
balance which would have been in the Participant's Account had the
mistaken amount not been contributed, then the amount to be returned
to the Employer would have to be limited so as to avoid such
reduction.
-100-
<PAGE>
In the event that the Commissioner of the 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.
Notwithstanding the above, any excess or returned contribution shall
not be returned to the Employer if the Employer has taken Davis-Bacon
Act credit for such contribution. These excess or mistaken
contributions shall be paid to the Employee for whom such credit is
taken.
-101-
<PAGE>
NON-STANDARDIZED PROFIT SHARING/THRIFT PLAN WITH 401(K) FEATURE
ADOPTION AGREEMENT NUMBER 001-03
This Adoption Agreement, when executed by the Employer and accepted by the Plan
Administrator, and the Trustee, if applicable, and accepted by Connecticut
General Life Insurance Company, establishes the Employer's Plan and Trust, if
applicable, for the benefit of its eligible Employees and their Beneficiaries.
The terms of the Connecticut General Life Insurance Company Defined Contribution
Plan are expressly incorporated therein and shall form a part hereof as fully as
if set forth herein except that if more than one election is provided, only that
election made by the Employer shall be so incorporated. The terms of the Plan so
incorporated together with the terms of this Adoption Agreement shall constitute
the sole terms of the Employer's Plan and Trust, if applicable, and no further
trust instrument or other instrument of any nature whatsoever shall be required.
The Employer's participation under the Plan shall be subject to all the terms
set forth therein and in this Adoption Agreement.
/arrow/ NOTE: SECTION 414(D) GOVERNMENTAL PLANS AND SECTION 414(E) NONELECTING
CHURCH PLANS THAT DO NOT WISH to PROVIDE ERISA-REQUIRED BENEFITS SHOULD NOT
ADOPT THIS DOCUMENT.
- --------------------------------------------------------------------------------
Plan Document GENERAL INFORMATION
Section
- --------------------------------------------------------------------------------
Legal Name of Employer: TRAVEL SERVICES INTERNATIONAL, INC.
- --------------------------------------------------------------------------------
Address: 220 CONGRESS PARK DRIVE, SUITE 300
City: DELRAY BEACH State: FL Zip: 33445
- --------------------------------------------------------------------------------
Plan Name: TRAVEL SERVICES INTERNATIONAL, INC. 401(K)
RETIREMENT PLAN
- --------------------------------------------------------------------------------
Plan Number: 001
/arrow/ TO BE ASSIGNED BY THE EMPLOYER.
FOR EXAMPLE: 001, 002, AND SO ON.
- --------------------------------------------------------------------------------
Employer's EIN: 52-2030324
- --------------------------------------------------------------------------------
Classification of Business:
[X] C Corporation [ ] S Corporation [ ] Partnership
[ ] Sole Proprietorship
[ ] Tax-Exempt/Nonprofit Organization
[ ] Other: ____________________________________________
- --------------------------------------------------------------------------------
-1-
<PAGE>
- --------------------------------------------------------------------------------
Plan Document GENERAL INFORMATION
Section
- --------------------------------------------------------------------------------
Employer Tax Status:
Tax Year Ends (MM/DD): DECEMBER 31
Tax Basis: [ ] Cash [X] Accrual
- --------------------------------------------------------------------------------
1.20 Effective Date
The adoption of the CONNECTICUT GENERAL LIFE INSURANCE
COMPANY Non-Standardized Profit Sharing/Thrift Plan with
401(k) Feature shall:
[X] A. Establish a new Plan effective as of (MM/DD/YY):
JULY 1, 1998
[ ] B. Constitute an amendment and restatement in its
entirety of a previously established Qualified
Plan of the Employer which was effective ________
(hereinafter called the "Effective Date"). The
effective date of this amendment and restatement
is __________ .
- --------------------------------------------------------------------------------
Merger Data
This Plan includes funds from a prior or coincidental
merger of a:
[ ] A. Money Purchase Plan
[ ] B. Target Benefit Plan
[X] C. Not Applicable
- --------------------------------------------------------------------------------
Sponsoring Organization:
Connecticut General Life Insurance Company
P. O. Box 2975
Hartford, CT 06104
860.534.2298
- --------------------------------------------------------------------------------
-2-
<PAGE>
TABLE OF CONTENTS
ARTICLE PAGE
I. Nontrusteed, Trust, and Trustee.............................. 4
II. Plan Administrator........................................... 4
III. Plan Year.................................................... 5
IV. Compensation................................................. 6
V. Highly Compensated Employee.................................. 7
VI. Service...................................................... 8
VII. Eligibility Requirements..................................... 10
VIII. Entry Date................................................... 13
IX. Vesting...................................................... 15
X. Contributions................................................ 18
XI. Contribution Period.......................................... 28
XII. Allocation of Contributions.................................. 29
XIII. Limitations on Allocations................................... 31
XIV. Investment of Participant's Accounts......................... 32
XV. Life Insurance............................................... 32
XVI. Employer Stock............................................... 33
XVII. Withdrawals Preceding Termination............................ 34
XVIII. Loans to Participants, Beneficiaries and Parties-in-Interest. 38
XIX. Retirement and Disability.................................... 39
XX. Distribution of Benefits..................................... 40
XXI. Qualified Preretirement Survivor Annuity..................... 41
XXII. Amendment of the Plan........................................ 41
XXIII. Top-Heavy Provisions......................................... 42
XXIV. Other Adopting Employer...................................... 44
-3-
<PAGE>
- --------------------------------------------------------------------------------
Plan Document I. NONTRUSTEED, TRUST, AND TRUSTEE
Section
- --------------------------------------------------------------------------------
/arrow/ THE PLAN MUST HAVE A TRUSTEE IF THE EMPLOYER HAS ELECTED EMPLOYER STOCK,
LOANS, INVESTMENT IN LIFE INSURANCE, AND/OR Any INVESTMENT OTHER THAN THROUGH A
CONTRACT WITH CONNECTICUT GENERAL LIFE INSURANCE COMPANY.
/arrow/ IF THE PLAN IS TRUSTEED, THE EMPLOYEE MUST APPLY FOR A TRUST TAX
IDENTIFICATION NUMBER, UNLESS THE TRUST ALREADY HaS OBTAINED ONE, EVEN IF CG
TRUST COMPANY HAS BEEN APPOINTED AS THE PLAN'S TRUSTEE.
- --------------------------------------------------------------------------------
The Plan is:
1.39 [ ] A. Nontrusteed.
- --------------------------------------------------------------------------------
1.73, 1.74 [ ] B. Trusteed and Trustees are:
Trustee(s)
Name(s): _______________________________________
_______________________________________
Address: _______________________________________
________________________________________________
City: ____________ St: ___________ Zip: ________
Trust EIN: _______
- --------------------------------------------------------------------------------
1.73, 1.74 [X] C. Trusteed and CG Trust Company has been appointed
as the Plan's Trustee.
Trust
Name: CG Trust Company
Address: 525 West Monroe St., Suite 1900
Chicago, IL 60661-3629
Employer's Trust EIN: TBD
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Plan Document II. PLAN ADMINISTRATOR
Section
- --------------------------------------------------------------------------------
1.50 The Plan Administrator is:
Name: PLAN SPONSOR, TRAVEL SERVICES INTERNATIONAL,
INC.
Address: 220 CONGRESS PARK DRIVE, SUITE 300
City: DELRAY BEACH State: FL Zip: 33445
- --------------------------------------------------------------------------------
-4-
<PAGE>
- --------------------------------------------------------------------------------
Plan Document III. PLAN YEAR
Section
- --------------------------------------------------------------------------------
1.51 A. The Plan Year will mean:
[X] 1. The 12-consecutive-month period commencing on
(MM/DD/YY) JANUARY 1, 1998 and each anniversary
thereof except that the first plan year will
commence on (MM/DD/YY) JULY 1, 1998.
THIS ELECTION MAY BE MADE ONLY FOR NEW PLANS.
[ ] 2. The 12-consecutive-month period commencing on
(MM/DD/YY) _______________ and each anniversary
thereof.
- --------------------------------------------------------------------------------
-5-
<PAGE>
- --------------------------------------------------------------------------------
Plan Document IV. COMPENSATION
Section
- --------------------------------------------------------------------------------
/arrow/ (I) ELECTION OF OPTIONS 1-6 BELOW DOES NOT REQUIRE A SEPARATE
NONDISCRIMINATION TEST.
/arrow/ (II) IF OPTION 1, 2, OR 3 IS ELECTED, YOU MUST ELECT THE SAME
DEFINITION OF COMPENSATION IN SECTION XIII, LIMITATIONS ON
ALLOCATIONS.
/arrow/ (III) OPTIONS 1-6 INCLUDE LUMP SUM AMOUNTS AND/OR CASH BONUSES.
THESE AMOUNTS ARE INCLUDED iN COMPENSATION IN THE YEAR IN
WHICH PAID.
/arrow/ (IV) OPTIONS 4-9 MAY NOT BE ELECTED BY A PLAN THAT USES AN
INTEGRATED ALLOCATION FORMULA.
/arrow/ (IV) THIS COMPENSATION DEFINITION IS FOR PURPOSES OF ALLOCATING
CONTRIBUTIONS UNDER THE PLAN. FOR NONDISCRIMINATION TESTING,
THE EMPLOYER MAY USE ANY DEFINITION OF COMPENSATION THAT IS
BASED UPON CODE SECTION 414(S) OR 415(C)(3). USE OF OPTIONS
7, 8, OR 9 FOR NONDISCRIMINATION TESTING REQUIRES THAT THE
EMPLOYER SATISFY A SEPARATE COMPENSATION NONDISCRIMINATION
TEST.
- --------------------------------------------------------------------------------
A. Indicate the number of the Compensation definition
that will be used for allocating each type of
contribution.
Elective Deferral Contributions: 1
Matching Contributions: 1
Nonelective Contributions: 1
Employee Contributions: _____
1.12 For purposes of allocating contributions,
Compensation means:
1.12(a) 1. Wages, Tips and Other Compensation Box on Form
W-2.
1.12(b) 2. Section 3401(a) wages.
1.12(c) 3. 415 safe-harbor compensation.
1.12(d) 4. Modified Wages, Tips, and Other Compensation Box
on Form W-2.
1.12(e) 5. Modified section 3401(a) wages.
1.12(f) 6. Modified 415 safe-harbor compensation.
1.12(g) 7. Regular or base salary or wages.
1.12(h) 8. Regular or base salary or wages plus 9 overtime
and/or 9 bonuses.
1.12(i) 9. A "reasonable alternative definition of
Compensation," as that term is used under Code
section 414(s)(3) and the regulations
thereunder.
The definition of Compensation is:
/arrow/ LUMP SUM AMOUNTS AND/OR CASH BONUSES MAY
BE EXCLUDED ONLY IF SPECIFIED IN THIS
DEFINITION. ALSO SEE NOTE (V) ABOVE.
- --------------------------------------------------------------------------------
-6-
<PAGE>
Plan Document IV. COMPENSATION
Section
- --------------------------------------------------------------------------------
1.12 B. Compensation shall be determined over the following
determination period:
[X] 1. The Plan Year.
[ ] 2. A 12-consecutive-month period beginning on
(MM/DD) and ending with or within the Plan Year.
For Employees whose date of hire is less than 12
months before the end of the designated 12-month
period, Compensation will be determined over the
Plan Year.
[ ] 3. The Plan Year. However, for the Plan Year in
which an Employee's participation begins, the
applicable period is the portion of the Plan
Year during which the Employee is eligible to
participate in the Plan.
- --------------------------------------------------------------------------------
1.12 C. Compensation shall/shall not include Employer
contributions made pursuant to a salary reduction
agreement, which are not includable in the gross income
of the Employee under Code Section 125, 402(e)(3),
402(h)(1)(B) or 403(b).
[X] Shall [ ] Shall Not
- --------------------------------------------------------------------------------
1.12 D. The highest annual Compensation to be used in
determining allocations to a Participant's Account
shall be:
$_________
/arrow/ ENTER AN AMOUNT IF LESS THAN THE $150,000 (AS
INDEXED) LIMITATION ON COMPENSATION.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Plan Document V. HIGHLY COMPENSATED EMPLOYEE
Section
- --------------------------------------------------------------------------------
1.29 A. Highly Compensated Employees shall be determined using:
1.29(a) [X] 1. The Traditional Method.
1.29(b) [ ] 2. The Simplified Method for Employers in more than
one geographical area.
1.29(c) [ ] 3. The alternative Simplified Method.
1.29(d) [ ] 4. The alternative Simplified Method with Snapshot
Day basis.
The Snapshot Day is ____________ (fill in).
- --------------------------------------------------------------------------------
-7-
<PAGE>
Plan Document V. HIGHLY COMPENSATED EMPLOYEE
Section
- --------------------------------------------------------------------------------
1.29(a) B. If A.1. or A.2. is chosen above, the Look-Back Year
shall be:
[ ] 1. The 12-month period immediately preceding the
Determination Year.
[X] 2. The calendar year ending with or within the
Determination Year.
/arrow/ IF B.2. IS SELECTED AND THE DETERMINATION YEAR
(PLAN YEAR) IS THE CALENDar YEAR, THEN THE LOOK-BACK
YEAR IS THE SAME 12-MONTH PERIOD AS THE DETERMINATION
YEAR. THIS AVOIDS HAVING TO LOOK BACK AT DATA FROM A
PRIOR YEAR.
/arrow/ HOWEVER, IF THE DETERMINATION YEAR IS NOT THE
CALENDAR YEAR, THE DETERMINATION YEAR CALCULATION MUST
BE MADE ON THE BASIS OF A LAG PERIOD (THE PERIOD RUNNING
FROM THE END OF THE LOOK-BACK YEAR TO THE END OF THE
DETERMINATION YEAR), WITH THE APPLICABLE DOLLAR AMOUNTS
ADJUSTED ON A PRO RATA BASIS FOR THE NUMBER OF MONTHS IN
THE LAG PERIOD.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Plan Document VI. SERVICE
Section
- --------------------------------------------------------------------------------
/arrow/ CHECK OFF APPROPRIATE BASIS FOR DETERMINING SERVICE.
- --------------------------------------------------------------------------------
2A.3, 2A.9 A. Hours of Service or Elapsed Time
1. Years of Service shall be determined on the following
basis:
a. Eligibility: [ ] Hours of Service
[X] Elapsed Time
b. Vesting: [X] Hours of Service
[ ] Elapsed Time
c. Allocation of Contributions: [X] Hours of Service
[ ] Elapsed Time
2. If service is based on Hours of Service, Hours shall
be determined on the basis of:
[X] a. Actual hours for which paid or entitled to
payment.
[ ] b. Days Worked (10 Hours of Service).
[ ] c. Weeks Worked (45 Hours of Service).
[ ] d. Semimonthly payroll periods (95 Hours of
Service).
[ ] e. Months Worked (190 Hours of Service).
/arrow/ FOR OPTIONS B, C, D, AND E: IF THE EMPLOYEE
WOULD BE CREDITED WIth 1 HOUR OF SERVICE DURING THE
PERIOD, THE EMPLOYEE SHALL BE CREDITED WITH THE NUMBER
OF HOURS OF SERVICE INDICATED IN PARENTHESES.
- --------------------------------------------------------------------------------
-8-
<PAGE>
- --------------------------------------------------------------------------------
Plan Document VI. SERVICE
Section
- --------------------------------------------------------------------------------
B. Service with other employers.
1.24 1. Service with members of the Employer's controlled
group of corporations, affiliated service group, or
group of business under common control ("controlled
group").
/arrow/ SERVICE FOR AN EMPLOYER WHILE THE EMPLOYER IS
PART OF THE CONTROLLED GROUP MUST BE TAKEN INTO
ACCOUNT.
a. Service with a member of the controlled group
prior to it becoming part of the controlled group
will be included for all purposes.
[X] Yes [ ] No
2A.5 2. Service with a predecessor organization.
/arrow/ SERVICE WITH A PREDECESSOR ORGANIZATION OF
THE EMPLOYER MUST BE TAKEN INTO ACCOUNT IF THE
EMPLOYER MAINTAINS THE PLAN OF THE PREDECESSOR
ORGANIZATION.
a. Service with a predecessor organization will be
included for all purposes even if the Employer
does not maintain the plan of the predecessor
organization.
[X] Yes [ ] No
2A.5 3. Service with the following subsidiary(ies) or
affiliated organization, not related to the Employer
under the rules of Code sections 414(b), (c) or (m),
shall be considered Service for all purposes of this
plan:
_____________________________________________________
_____________________________________________________
_____________________________________________________
/arrow/ SERVICE CREDITED UNDER 1.A, 2.A AND 3 MUST APPLY TO
ALL SIMILARLY SITUATed EMPLOYEES, MUST BE CREDITED FOR A
LEGITIMATE BUSINESS REASON, AND MUST NOT BY DESIGN OR
OPERATION DISCRIMINATE SIGNIFICANTLY IN FAVOR OF HIGHLY
COMPENSATED EMPLOYEES.
- --------------------------------------------------------------------------------
-9-
<PAGE>
- --------------------------------------------------------------------------------
Plan Document VII. ELIGIBILITY REQUIREMENTS
Section
- --------------------------------------------------------------------------------
/arrow/ CHECK OR FILL OUT APPROPRIATE REQUIREMENTS FOR EACH TYPE OF CONTRIBUTION
IN THE PLAN.
- --------------------------------------------------------------------------------
2A.5(a), 2B.1 A. Eligibility Requirements
1. If Employer is a Partnership or Sole Proprietorship:
Self-Employed Individuals are eligible to participate in
the Plan.
[ ] Yes [ ] No
2. Immediate Participation.
/arrow/ NO AGE OR SERVICE REQUIREMENT.
[ ] Elective Deferral Contributions
[ ] Matching Contributions
[ ] Nonelective Contributions
[ ] Employee Contributions
3. Service Requirement.
/arrow/ NOT TO EXCEED 1 YEAR IF GRADED VESTING; NOT TO
EXCEED 2 YEARS IF 100% IMMEDIATE VESTING. NOT TO EXCEED
2 YEAR IF GRADED VESTING OR 12 YEARS IF 100% IMMEDIATE
VESTING IF ANNUAL ENTRY DATE IS CHOSEN IN SECTION VIII
"ENTRY DATE." NOT TO EXCEED 1 YEAR FOR ELECTIVE DEFERRAL
CONTRIBUTIONS.
[X] Elective Deferral Contributions:
1/2 (indicate number of years)
[X] Matching Contributions:
1/2 (indicate number of years)
[X] Nonelective Contributions:
1/2 (indicate number of years)
[ ] Employee Contributions:
______ (indicate number of years)
/arrow/ FILL IN THE BLANK(S) ABOVE WITH THE
AMOUNT OF SERVICE REQUIRED. ANY SERVICE
REQUIREMENT NOT IN UNITS OF WHOLE YEARS REQUIRES
SERVICE FOR ELIGIBILITY TO BE DETERMINED BASED
ON ELAPSED TIME (SEE SECTION VI.A.1.A).
4. Age Requirement.
/arrow/ NOT GREATER THAN 21 YEARS. IF ANNUAL ENTRY DATE
IS CHOSEN IN SECTION VIII "ENTRY DATE," NOT GREATER THAN
202 YEARS.
[ ] Elective Deferral Contributions:
______ (indicate minimum age)
[ ] Matching Contributions:
______ (indicate minimum age)
[ ] Nonelective Contributions:
______ (indicate minimum age)
[ ] Employee Contributions:
______ (indicate minimum age)
5. Employees who were employed on or before the initial
Effective Date of the Plan or the Effective Date of the
amendment and restatement of the Plan, as indicated on
page 2, shall/shall not be immediately eligible without
regard to any Age and/or Service requirements specified
in 2 or 3 above.
[X] Shall [ ] Shall Not
-10-
<PAGE>
- --------------------------------------------------------------------------------
Plan Document VII. ELIGIBILITY REQUIREMENTS
Section
- --------------------------------------------------------------------------------
2B.1 B. Job Class Requirements
An Employee must be a member of one or more of the
following selected classifications:
1. No Job Class Requirements:
[X] Elective Deferral Contributions
[X] Matching Contributions
[X] Nonelective Contributions
[ ] Employee Contributions
2. Salaried:
[ ] Elective Deferral Contributions
[ ] Matching Contributions
[ ] Nonelective Contributions
[ ] Employee Contributions
3. Hourly:
[ ] Elective Deferral Contributions
[ ] Matching Contributions
[ ] Nonelective Contributions
[ ] Employee Contributions
4. Clerical:
[ ] Elective Deferral Contributions
[ ] Matching Contributions
[ ] Nonelective Contributions
[ ] Employee Contributions
5. Employees whose employment is government by a
collective bargaining agreement represented by the
following union: _____________
[ ] Elective Deferral Contributions
[ ] Matching Contributions
[ ] Nonelective Contributions
[ ] Employee Contributions
6. Other (fill in): _____________
[ ] Elective Deferral Contributions
[ ] Matching Contributions
[ ] Nonelective Contributions
[ ] Employee Contributions
/arrow/ "PART-TIME" EMPLOYEES MAY NOT BE EXCLUDED.
- --------------------------------------------------------------------------------
-11-
<PAGE>
- --------------------------------------------------------------------------------
Plan Document VII. ELIGIBILITY REQUIREMENTS
Section
- --------------------------------------------------------------------------------
2B.1 C. Additional Requirements
An Employee must be in the following designated
division(s) of the Employer:
________________________________________________________
________________________________________________________
[ ] Elective Deferral Contributions
[ ] Matching Contributions
[ ] Nonelective Contributions
[ ] Employee Contributions
- --------------------------------------------------------------------------------
2B.1 D. An Employee must not be a member of any one of the
following groups:
1. Union.
/arrow/ EMPLOYEES WHO ARE MEMBERS OF A UNION ARE DEFINED
AS: EMPLOYEES INCLUDED IN A UNIT OF EMPLOYEES COVERED BY
A COLLECTIVE BARGAINING AGREEMENT BETWEEN THE EMPLOYER
AND EMPLOYEE REPRESENTATIVES, IF RETIREMENT BENEFITS
WERE THE SUBJECT OF GOOD FAITH BARGAINING AND IF TWO
PERCENT OR LESS OF THE EMPLOYEES OF THE EMPLOYER WHO ARE
COVERED PURSUANT TO THAT AGREEMENT ARE PROFESSIONAL
EMPLOYEES AS DEFINED IN SECTION 1.410(B)-9 OF THE
REGULATIONS. FOR THIS PURPOSE, THE TERM "EMPLOYEE
REPRESENTATIVES" DOES NOT INCLUDE ANY ORGANIZATION MORE
THAN HALF OF WHOSE MEMBERS ARE EMPLOYEES WHO ARE OWNERS,
OFFICERS, OR EXECUTIVES OF THE EMPLOYER, UNLESS THE
COLLECTIVE BARGAINING AGREEMENT PROVIDES FOR COVERAGE
UNDER THE PLAN.
[X] Elective Deferral Contributions
[X] Matching Contributions
[X] Nonelective Contributions
[ ] Employee Contributions
2. Nonresident aliens (within the meaning of Code section
7701(b)(1)(B)) who receive no earned income (within the
meaning of Code section 911(d)(2)) from the Employer
that constitutes income from sources within the United
States (within the meaning of Code section 861(a)(3)).
[X] Elective Deferral Contributions
[X] Matching Contributions
[X] Nonelective Contributions
[ ] Employee Contributions
- --------------------------------------------------------------------------------
-12-
<PAGE>
Plan Document VII. ELIGIBILITY REQUIREMENTS
Section
- --------------------------------------------------------------------------------
3. Employees covered by the following designated qualified
employee benefit plans:
________________________________________________________
________________________________________________________
[ ] Elective Deferral Contributions
[ ] Matching Contributions
[ ] Nonelective Contributions
[ ] Employee Contributions
- --------------------------------------------------------------------------------
1.15 E. The Plan covers Employees whose conditions of employment
are mandated under the Davis-Bacon Act.
[ ] Yes [X] No
- --------------------------------------------------------------------------------
Plan Document VIII. ENTRY DATE
Section
- --------------------------------------------------------------------------------
/arrow/ CHECK THE APPROPRIATE REQUIREMENT FOR ENTRY DATe.
- --------------------------------------------------------------------------------
1.25 A. Immediately.
[ ] Elective Deferral Contributions
[ ] Matching Contributions
[ ] Nonelective Contributions
[ ] Employee Contributions
- --------------------------------------------------------------------------------
1.25 B. The first day of any month.
[ ] Elective Deferral Contributions
[ ] Matching Contributions
[ ] Nonelective Contributions
[ ] Employee Contributions
- --------------------------------------------------------------------------------
1.25 C. Quarterly (that is, three months apart) on each:
(MM/DD) JANUARY 1, or (MM/DD) APRIL 1, or
(MM/DD) JULY 1, or (MM/DD) OCTOBER 1.
/arrow/ FILL IN DATEs.
[X] Elective Deferral Contributions
[X] Matching Contributions
[X] Nonelective Contributions
[ ] Employee Contributions
- --------------------------------------------------------------------------------
-13-
<PAGE>
Plan Document VIII. ENTRY DATE
Section
- --------------------------------------------------------------------------------
1.25 D. Semiannually (that is, six months apart) on each:
(MM/DD) __________, or (MM/DD) __________.
/arrow/ FILL IN DATEs.
[ ] Elective Deferral Contributions
[ ] Matching Contributions
[ ] Nonelective Contributions
[ ] Employee Contributions
- --------------------------------------------------------------------------------
1.25 E. Annually, on each (MM/DD) __________.
/arrow/ FILL IN DATE.
[ ] Elective Deferral Contributions
[ ] Matching Contributions
[ ] Nonelective Contributions
[ ] Employee Contributions
- --------------------------------------------------------------------------------
1.25 F. The first day nearest to the date(s) selected in B, C, D
or E above, whether before or after that date, that the
Participant meets the Eligibility Requirements.
[ ] Elective Deferral Contributions
[ ] Matching Contributions
[ ] Nonelective Contributions
[ ] Employee Contributions
/arrow/ ALLOWS RETROACTIVE ENTRY INTO THE PLAN. THIS MAY
HAVE AN EFFEct ON VARIOUS NONDISCRIMINATION TESTS FOR
THE PLAN.
- --------------------------------------------------------------------------------
-14-
<PAGE>
- --------------------------------------------------------------------------------
Plan Document IX. VESTING
Section
- --------------------------------------------------------------------------------
1.76 A. Vesting Percentage
The Vesting Schedule, based on number of Years or
Periods of Service, shall be as indicated below.
Indicate the number of the vesting schedule that applies
to any Nonelective Contributions, Matching
Contributions, and Prior Employer Contributions. The
vesting schedules are depicted in 1 through 8, below.
Nonelective Contributions are subject to vesting
schedule: 7
Matching Contributions are subject to vesting
schedule: 7
Prior Employer Contributions are subject to vesting
schedule: ______
1. Immediately = 100%
2. 0-3 Years = 0%
3 Years = 100%
3. 1 Year = 20%
2 Years = 40%
3 Years = 60%
4 Years = 80%
5 Years = 100%
4. 0-3 Years = 0%
3 Years = 20%
4 Years = 40%
5 Years = 60%
6 Years = 80%
7 Years = 100%
5. 0-2 Years = 0%
2 Years = 20%
3 Years = 40%
4 Years = 60%
5 Years = 80%
6 Years = 100%
6. 0-5 Years = 0%
5 Years = 100%
7. 1 Year = 25%
2 Years = 50%
3 Years = 75%
4 Years = 100%
- --------------------------------------------------------------------------------
-15-
<PAGE>
- --------------------------------------------------------------------------------
Plan Document IX. VESTING
Section
- --------------------------------------------------------------------------------
8. Other. Must be at least as liberal as #4 or #6 above.
______ = ______
______ = ______
______ = ______
______ = ______
______ = ______
______ = ______
______ = ______
- --------------------------------------------------------------------------------
2A.5(b) B. The vesting computation period shall be based on the
Employee's service in the:
[X] Plan Year [ ] Employment year
- --------------------------------------------------------------------------------
2A.7, 2A.10 C. Excluded Years or Periods of Service.
The vesting percentage shall be based on all Years of
Service (i.e., completing 1000 hours of Service) or
Periods of Service (i.e., Elapsed Time), EXCEPT that the
following shall be excluded:
Years or Periods of Service:
[ ] 1. Prior to the time the Participant attained age
18.
[ ] 2. During which the Employer did not maintain the
plan or predecessor plan.
[ ] 3. During which the Participant elected not to
contribute to a plan which required Employee
Contributions.
[ ] 4. Rule of Parity (Elapsed Time).
/arrow/ RULE OF PARITY (ELAPSED TIME): IN THE
EVENT A REEMPLOYED EMPLOYee HAS NO VESTED
INTEREST IN EMPLOYER CONTRIBUTIONS AT THE TIME
THE BREAK OCCURRED, AND HAS SINCE INCURRED 5
CONSECUTIVE 1-YEAR BREAKS-IN-SERVICE, AND HAS A
PERIOD OF SEVERANCE WHICH EQUALS OR EXCEEDS HIS
PRIOR PERIOD OF SERVICE, SUCH PRIOR SERVICE MAY
BE DISREGARDED.
[ ] 5. Rule of Parity (Hours of Service).
/arrow/ RULE OF PARITY (HOURS OF SERVICE): YEARS
OF SERVICE PRIOR TO A BREAK-IN-SERVICE MAY BE
DISREGARDED IF THE PARTICIPANT HAD NO VESTED
INTEREST IN EMPLOYER CONTRIBUTIONS AT THE TIME
THE BREAK OCCURRED, AND THE PARTICIPANT HAS SINCE
INCURRED 5 CONSECUTIVE 1-YEAR BREAKS-IN-SERVICE,
AND THE NUMBER OF CONSECUTIVE 1-YEAR
BREAKS-IN-SERVICE IS AT LEAST AS GREAT AS THE
YEARS OF SERVICE BEFORE THE BREAK OCCURRED.
[ ] 6. Prior to any 1-Year Break-in-Service until the
Employee completes a Year of Service following
reemployment.
[X] 7. None of the above.
- --------------------------------------------------------------------------------
-16-
<PAGE>
- --------------------------------------------------------------------------------
Plan Document IX. VESTING
Section
- --------------------------------------------------------------------------------
3D.1, 3D.2, D. Forfeitures.
2A.7, 2A.10
1. Forfeitures will occur:
[ ] a. Immediately.
[ ] (1) Optional Payback Method.
[ ] (2) Required Payback Method.
[X] b. Upon a 1-Year Break-in-Service.
[ ] (1) Optional Payback Method.
[X] (2) Required Payback Method.
[ ] c. Upon 5 consecutive 1-Year Breaks-in-Service.
2. Forfeitures will be:
[X] a. Used as an Employer Credit.
[ ] b. Reallocated to Participants' Accounts.
[ ] c. Used as an Employer Credit and then, to the
extent any Forfeitures remain, reallocated to
Participants' Accounts.
/arrow/ IF CHOICE IX.D.2.B OR C IS SELECTED AND THE
PLAN PROVIDES MATCHING CONTRIBUTIONS, THE ACTUAL
CONTRIBUTION PERCENTAGE (ACP) TEST WILL BE AFFECTED.
- --------------------------------------------------------------------------------
-17-
<PAGE>
- --------------------------------------------------------------------------------
Plan Document X. CONTRIBUTIONS
Section
- --------------------------------------------------------------------------------
2C.1(k)(1) A. Elective Deferral Contributions
1. Availability/Amount
[ ] Not Available under the Plan.
[X] Available under the Plan (complete the
following).
Each Participant MAY elect to have his
Compensation actually paid during the Plan Year
reduced by:
[ ] a. __________%.
[ ] b. up to ___________%.
[X] c. from 1% to 20%.
[ ] d. up to the maximum percentage allowable,
not to exceed the limits of Code sections
402(g) and 415.
/arrow/ LUMP SUM AMOUNTS AND/OR CASH BONUSES MUST BE
SUBJECT TO THE SALAry DEFERRAL ELECTION UNLESS THE
DEFINITION OF COMPENSATION IN SECTION IV.A.9 HAS BEEN
ELECTED AND THESE AMOUNTS HAVE BEEN SPECIFICALLY
EXCLUDED FROM THAT COMPENSATION DEFINITION. LUMP SUM
AMOUNTS AND CASH BONUSES ARE DEFERRED UPON AND TESTED
IN THE PLAN YEAR IN WHICH PAID.
2. Modification
A Participant may change the amount of
Elective Deferral Contributions the
Participant makes to the Plan (complete a and
b):
[X] a. FOUR per calendar year (may not be
less frequent than once).
[X] b. As of the following date(s) (MM/DD):
JANUARY 1
APRIL 1
JULY 1
OCTOBER 1
- --------------------------------------------------------------------------------
-18-
<PAGE>
- --------------------------------------------------------------------------------
Plan Document X. CONTRIBUTIONS
Section
- --------------------------------------------------------------------------------
B. Required Employee Contributions
2C.1(b) 1. Availability/Amount
[X] Not Available under the Plan.
[ ] Available under the Plan and must be made as a
condition of receiving an Employer Contribution.
/arrow/ REQUIRED EMPLOYEE CONTRIBUTIONS ARE NOT
AVAILABLE UNLESS ELECTIVE DEFERRal CONTRIBUTIONS ARE
AVAILABLE.
Required Contributions shall be in the amount of:
[ ] a. ___________% of Compensation actually paid
during the Contribution Period.
2C.1(k)(1) [ ] b. Not less than ___________% nor more than
___________% of Compensation actually paid
during the Contribution Period.
2. Modification
A Participant may suspend Required Employee
Contributions for a minimum period of:
[ ] a. 1 month
[ ] b. 2 months
[ ] c. 3 months
/arrow/ THE SUSPENSION PERIOD MAY BE OF INDEFINITE
DURATION. A PARTICIPANT'S REENTRY INTO THE PLAN
SHALL BE AS OF THE FIRST ENTRY DATE FOLLOWING THE
END OF THE SUSPENSION PERIOD.
- --------------------------------------------------------------------------------
-19-
<PAGE>
- --------------------------------------------------------------------------------
Plan Document X. CONTRIBUTIONS
Section
- --------------------------------------------------------------------------------
2C.1 C. Matching Contributions
Availability/Amount
[ ] Not Available under the Plan.
[X] Available under the Plan (elect one from option 1
and, if applicable, elect one from option 2).
1. [ ] a. Matching Contributions SHALL be based upon a
percentage of Considered Net Profits.
[X] b. Matching Contributions SHALL NOT be based upon
a percentage of Considered Net Profits.
2. Partnership Plans.
[ ] a. The Employer SHALL make Matching Contributions
to Partners.
/arrow/ MATCHING CONTRIBUTIONS TO PARTNERS ARE
TREATED IN ALL RESPECTS AS ELECTIVE DEFERRAL
CONTRIBUTIONS.
[ ] b. The Employer SHALL NOT make Matching
Contributions to Partners.
For each $1.00 of either Elective Deferral Contributions
or Required Employee Contributions, as selected above,
the Employer will contribute and allocate to each
Participant's Matching Contribution Account an amount
equal to:
[ ] 1. $______________ (e.g., $.50).
[X] 2. A discretionary percentage, to be determined by
the Employer.
/arrow/ IF OPTION 2 IS ELECTED, THE AMOUNT OF THE
DISCRETIONARY PERCENTAGE SHOULD BE DETERMINED BY
AN ANNUAL BOARD OF DIRECTORS RESOLUTION SETTING
THE PERCENTAGE.
[ ] 3. Graded Match.
/arrow/ IF A OR B IS ELECTED, THE MINIMUM AND
MAXIMUM PERCENTAGES MUST BE WITHIN THE PARAMETERS
OF THE ELECTIVE DEFERRAL ELECTION IN SECTION X.A
OR THE REQUIRED EMPLOYEE CONTRIBUTION ELECTION IN
SECTION X.B OF THIS ADOPTION AGREEMENT.
/arrow/ PERCENTAGES FOR HIGHER AMOUNTS MUST BE
LOWER THAN THE PERCENTAGES FOR LOWer AMOUNTS. FOR
EXAMPLE: 100% OF THE FIRST $500, PLUS 75% OF THE
NEXT $500, PLUS 50% OF THE NEXT $500.
[ ] a. Graded based upon the dollar amount of
each Participant's Elective Deferral
Contributions or Required Employee
Contributions as follows:
________% of the first $________ plus
________% of the first $________ plus
________% of the first $________ plus
________% of the next $________.
- --------------------------------------------------------------------------------
-20-
<PAGE>
- --------------------------------------------------------------------------------
Plan Document X. CONTRIBUTIONS
Section
- --------------------------------------------------------------------------------
[ ] b. Graded based upon the percentage of
Compensation of each Participant's
Elective Deferral Contribution or Required
Employee Contribution as follows:
________% of the first ________% plus
________% of the next ________% plus
________% of the next ________% plus
________% of the next ________%.
/arrow/ IF 3.A OR B IS ELECTED, ADDITIONAL
TESTING WILL BE REQUIRED TO PROVE THAT THE
DIFFERENT CONTRIBUTIONS ARE AVAILABLE ON A
NONDISCRIMINATORY BASIS.
[ ] 4. Separate specific dollar amounts for different
employees (e.g., employees in different job
classifications):
/arrow/ THIS OPTION IS AVAILABLE ONLY FOR PLANS
COVERING EMPLOYEES WHOSE CONDITIONS OF EMPLOYMENT
ARE MANDATED UNDER THE DAVIS-BACON ACT.
$________ (e.g., $.50) to employees in ________
(fill in)
$________ (e.g., $.50) to employees in ________
(fill in)
$________ (e.g., $.50) to employees in ________
(fill in)
$________ (e.g., $.50) to employees in ________
(fill in)
$________ (e.g., $.50) to employees in ________
(fill in)
Additional Formulas (fill in below):
/arrow/ FORMULAS MUST BE THE SAME TYPE AS ABOVE.
_________________________________________________
_________________________________________________
_________________________________________________
/arrow/ IF 4 IS SELECTED, ADDITIONAL TESTING
WILL BE REQUIRED TO PROVE THAT The DIFFERENT
CONTRIBUTIONS ARE AVAILABLE ON A
NONDISCRIMINATORY BASIS.
- --------------------------------------------------------------------------------
-21-
<PAGE>
- --------------------------------------------------------------------------------
Plan Document X. CONTRIBUTIONS
Section
- --------------------------------------------------------------------------------
[ ] 5. Different graded matches for different employees
(e.g., employees in different job
classifications, divisions, organizations,
members of a controlled group of corporations,
etc.):
/arrow/ THIS OPTION IS AVAILABLE ONLY FOR PLANS
COVERING EMPLOYEES WHOse CONDITIONS OF EMPLOYMENT
ARE MANDATED UNDER THE DAVIS-BACON ACT.
/arrow/ PERCENTAGES FOR HIGHER AMOUNTS MUST BE
LOWER THAN THE PERCENTAGES For LOWER AMOUNTS. FOR
EXAMPLE: 100% OF THE FIRST $500, PLUS 75% OF THE
NEXT $500, PLUS 50% OF THE NEXT $500.
[ ] a. Graded based upon the dollar amount of
Elective Deferral Contributions or
Required Contributions of each Participant
as follows:
Employees in ___________ (fill in)
________% of the first $________ plus
________% of the next $________ plus
________% of the next $________ plus
________% of the next $________.
Employees in ___________ (fill in)
________% of the first $________ plus
________% of the next $________ plus
________% of the next $________ plus
________% of the next $________.
Employees in ___________ (fill in)
________% of the first $________ plus
________% of the next $________ plus
________% of the next $________ plus
________% of the next $________.
Additional Formulas (fill in below):
/arrow/ FORMULAS MUST BE THE SAME TYPE
AS ABOVE.
_______________________________________
_______________________________________
_______________________________________
- --------------------------------------------------------------------------------
-22-
<PAGE>
- --------------------------------------------------------------------------------
Plan Document X. CONTRIBUTIONS
Section
- --------------------------------------------------------------------------------
[ ] b. Graded based upon the percentage of
compensation of the Elective Deferral
Contributions or Required Contributions of
each Participant as follows:
/arrow/ THIS OPTION IS AVAILABLE ONLY FOR
PLANS COVERING EMPLOYEES WHOSE CONDITIONS
OF EMPLOYMENT ARE MANDATED UNDER THE
DAVIS-BACON ACT.
/arrow/ MATCHING PERCENTAGES FOR HIGHER
COMPENSATION PERCENTAGES MUst BE LOWER
THAN MATCHING PERCENTAGES FOR LOWER
COMPENSATION PERCENTAGES. FOR EXAMPLE:
100% OF THE FIRST 3%, PLUS 75% OF THE NEXT
2%, PLUS 50% OF THE NEXT 2%.
Employees in ___________ (fill in)
________% of the first ________% plus
________% of the next ________% plus
________% of the next ________% plus
________% of the next ________%.
Employees in ___________ (fill in)
________% of the first ________% plus
________% of the next ________% plus
________% of the next ________% plus
________% of the next ________%.
Employees in ___________ (fill in)
________% of the first ________% plus
________% of the next ________% plus
________% of the next ________% plus
________% of the next ________%.
Additional Formulas (fill in below):
/arrow/ FORMULAS MUST BE THE SAME TYPE
AS ABOVE.
_______________________________________
_______________________________________
_______________________________________
/arrow/ IF 5.A OR B IS SELECTED, ADDITIONAL TESTING WILL
BE REQUIRED TO PROVE THAT THE DIFFERENT CONTRIBUTIONS
ARE AVAILABLE ON A NONDISCRIMINATORY BASIS.
- --------------------------------------------------------------------------------
-23-
<PAGE>
Plan Document X. CONTRIBUTIONS
Section
- --------------------------------------------------------------------------------
The Elective Deferral or Required Employee
Contributions, upon which Matching Contributions are
made by the Employer, shall not exceed:
[ ] 1. $__________ for the Plan Year.
[ ] 2. __________% of Participant's Compensation for the
Contribution Period.
[X] 3. N/A.
True-Up Contributions:
The Employer may/may not contribute a True-Up
Contribution for each Participant at the end of the Plan
Year so that the total Matching Contribution for each
Participant is calculated on an annual basis.
[X] May [ ] May not
Additional Matching Contributions:
In addition, at the end of the Plan Year, the Employer
may contribute Additional Matching Contributions to be
allocated in the same proportion that the Matching
Contribution made on behalf of each Participant during
the Plan Year bears to the Matching Contribution made on
behalf of all Participants during the Plan Year.
[X] Yes [ ] No
- --------------------------------------------------------------------------------
-24-
<PAGE>
- --------------------------------------------------------------------------------
Plan Document X. CONTRIBUTIONS
Section
- --------------------------------------------------------------------------------
2C.1 D. Nonelective Contributions
/arrow/ IF YOU CHOOSE TO MAKE A NONELECTIVE
CONTRIBUTION, EACH EMPLOYEE ELIGIBLE to PARTICIPATE IN
THE PLAN AND WHO SATISFIES THE ANNUAL ALLOCATION
REQUIREMENT OF SECTION XII.A OR XII.B MUST BE GIVEN AN
ALLOCATION, REGARDLESS OF WHETHER THEY MAKE ELECTIVE
DEFERRAL CONTRIBUTIONS.
Availability/Amount
[ ] Not Available under the Plan.
[X] Available under the Plan (complete the
following).
The Contribution for each Contribution Period shall be:
[ ] 1. ___________% of Considered Net Profits.
[ ] 2. ___________% of Compensation of each Participant.
[ ] 3. The Employer will contribute an amount equal to
$___________ for each Participant.
[X] 4. Discretionary.
/arrow/ IF OPTION 4 IS ELECTED, THE AMOUNT OF THE
DISCRETIONARY CONTRIBUTION SHOULD be DETERMINED BY AN
ANNUAL BOARD OF DIRECTORS RESOLUTION SETTING A FIXED
AMOUNT OF CONTRIBUTION OR A FORMULA BY WHICH A FIXED
AMOUNT CAN BE DETERMINED.
[ ] 5. The Employer will contribute an amount equal to
$___________/hour or unit of each Participant
(indicate dollar or cents amount).
/arrow/ OPTION 5 MAY BE CHOSEN ONLY FOR EMPLOYEES WHO
ARE SUBJECT TO A COLLECTIVE BARGAINING AGREEMENT.
[ ] 6. ___________% of Considered Net Profits to
___________ (fill in)
___________% of Considered Net Profits to
___________ (fill in)
___________% of Considered Net Profits to
___________ (fill in)
___________% of Considered Net Profits to
___________ (fill in)
___________% of Considered Net Profits to
___________ (fill in)
/arrow/ FILL IN JOB CLASSIFICATION.
- --------------------------------------------------------------------------------
-25-
<PAGE>
- --------------------------------------------------------------------------------
Plan Document X. CONTRIBUTIONS
Section
- --------------------------------------------------------------------------------
Additional Formulas (fill in below):
/arrow/ FORMULAS MUST BE THE SAME TYPE AS ABOVE.
_________________________________________________
_________________________________________________
_________________________________________________
[ ] 7. ___________% of Considered Net Profits to
___________ (fill in)
___________% of Considered Net Profits to
___________ (fill in)
___________% of Considered Net Profits to
___________ (fill in)
___________% of Considered Net Profits to
___________ (fill in)
___________% of Considered Net Profits to
___________ (fill in)
/arrow/ FILL IN JOB CLASSIFICATION.
Additional Formulas (fill in below):
/arrow/ FORMULAS MUST BE THE SAME TYPE AS ABOVE.
_________________________________________________
_________________________________________________
_________________________________________________
/arrow/ OPTIONS 6 AND 7 MAY BE SELECTED ONLY WHEN
A PLAN COVERS EMPLOYEES WHOSE CONDITIONS OF
EMPLOYMENT ARE MANDATED UNDER THE DAVIS-BACON
ACT.
/arrow/ IF OPTION 6 OR 7 IS SELECTED, SUBSECTION
A.1 (COMPENSATION to COMPENSATION ALLOCATION)
MUST BE CHOSEN IN SECTION XIII, "ALLOCATION OF
CONTRIBUTIONS."
/arrow/ IF OPTIONS 6 OR 7 IS SELECTED, ADDITIONAL
TESTING WILL BE REQUIRED tO PROVE THAT THE
DIFFERENT CONTRIBUTIONS ARE AVAILABLE ON A
NONDISCRIMINATORY BASIS.
Nonelective Contributions shall/shall not be based on
Considered Net Profits.
/arrow/ "SHALL" MUST BE CHOSEN IF OPTION 1 IS SELECTED.
[ ] Shall [X] Shall not
- --------------------------------------------------------------------------------
-26-
<PAGE>
- --------------------------------------------------------------------------------
Plan Document X. CONTRIBUTIONS
Section
- --------------------------------------------------------------------------------
2C.1(b) E. Voluntary Employee Contributions
Availability/Amount
[X] Not Available under the Plan.
[ ] Available under the Plan (complete the
following).
[ ] Voluntary Employee Contributions SHALL be
permitted up to _________% of Compensation
actually paid during the Plan Year.
[ ] Voluntary Employee Contributions made in a
Lump Sum SHALL be permitted.
/arrow/ VOLUNTARY EMPLOYEE CONTRIBUTIONS ARE NOT
AVAILABLE UNLESS ELECTIVE DEFERRAL CONTRIBUTIONS ARE
AVAILABLE
- --------------------------------------------------------------------------------
2C.3 F. Rollover Contributions
Availability
[X] 1. Rollover Contributions out of the Plan are always
available.
[X] Cash only.
[ ] Cash and Loan Notes from this and/or a
prior plan.
[X] 2. Rollover Contributions into the Plan:
[ ] Not Available under the Plan.
[X] Available under the Plan (complete the
following).
Cash Only or Cash and Loan Notes:
[X] Cash only.
[ ] Cash and Loan Notes from prior
plan.
Rollover contributions into the Plan may
be made by:
[X] Both eligible Employees and
Employees who would be eligible
except they do not yet meet the
Plan's age and/or service
requirement.
[ ] Eligible Employees only.
- --------------------------------------------------------------------------------
-27-
<PAGE>
- --------------------------------------------------------------------------------
Plan Document X. CONTRIBUTIONS
Section
- --------------------------------------------------------------------------------
7B.8, 7B.9 G. Transfers of Account Balances
Availability
[X] 1. Transfers of Account Balances out of the Plan are
always available.
[X] 2. Transfers of Account Balances into the Plan:
[ ] Not Available under the Plan.
[X] Available under the Plan.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Plan Document XI. CONTRIBUTION PERIOD
Section
- --------------------------------------------------------------------------------
1.14 A. The regular Contribution Period (by contribution type)
shall be:
/arrow/ FOR 1 AND 2 BELOW, "OTHER" CONTRIBUTION PERIOD
MAY NOT BE LONGER THAN ANNUAL, BUT MAY BE SHORTER THAN
4-WEEKLY.
/arrow/ FOR 3 BELOW, "OTHER" CONTRIBUTION PERIOD MAY NOT
BE LONGER THAN MONTHLY, BUT MAY BE SHORTER THAN
4-WEEKLY.
1. Matching Contributions:
[X] Annual [ ] 4-Weekly
[ ] Monthly [ ] Other (specify)______.
2. Nonelective Contributions:
[X] Annual [ ] 4-Weekly
[ ] Monthly [ ] Other (specify)______.
3. Elective Deferral Contributions, Required Employee
Contributions, and/or Voluntary Employee
Contributions:
/arrow/ ANNUAL CONTRIBUTION PERIOD IS NOT AVAILABLE
FOR CONTRIBUTIONS IN #3.
[ ] Monthly [ ] 4-Weekly
[X] Other (specify) WEEKLY.
- --------------------------------------------------------------------------------
-28-
<PAGE>
- --------------------------------------------------------------------------------
Plan Document XII. ALLOCATION OF CONTRIBUTIONS
Section
- --------------------------------------------------------------------------------
2C.1(f) A. Allocation Formula for Nonelective Contribution
Complete the following ONLY if Section X.D is 1, 4, 6 or
7.
/arrow/ IF SECTION X.D IS 6 OR 7, THE COMPENSATION TO
COMPENSATION ALLOCATION FORMUla (1 BELOW) MUST BE
CHOSEN.
The Nonelective Contribution will be allocated to
Participants who meet the requirements of Section XII.B
or C as follows:
[X] 1. Compensation to Compensation:
In the same ratio as each Participant's
Compensation bears to the total Compensation of
all Participants.
[ ] 2. Integrated with Social Security:
a. Choose one of the following methods:
[ ] Step-Rate Method
For each Plan year, the Employer will
contribute an amount equal to _______% of
each Participant's Compensation up to the
Social Security Integration Level, plus
________% of each Participant's
Compensation in excess of the Social
Security Integration Level. However, in no
event will the Excess Contribution
percentage exceed the amount specified in
Section 2C.1(f)(2)(B) of the Plan.
[ ] Maximum Disparity Method
For each Plan Year, the Employer's
Nonelective Contribution shall be
allocated in the manner stated in Section
2C.1(f)(3) of the Plan in order to
maximize permitted disparity.
b. Social Security Integration Level:
[ ] i. $_________ (not to exceed the Social
Security Taxable Wage Base).
[ ] ii. The Social Security Taxable Wage Base
in effect on the first day of the
Plan Year.
[ ] iii. _________% of the Social Security
Taxable Wage Base (not to exceed
100%).
- --------------------------------------------------------------------------------
-29-
<PAGE>
- --------------------------------------------------------------------------------
Plan Document XII. ALLOCATION OF CONTRIBUTIONS
Section
- --------------------------------------------------------------------------------
2C.1(g) B. Annual Allocation Requirements
An allocation of the annual Nonelective Contribution,
annual Matching Contribution, and/or Additional Matching
Contribution made by the Employer will be made to each
Participant who:
[ ] 1. Is a Participant on ANY day during the Plan Year
regardless of Service credited during the Plan
Year.
[ ] 2. Is credited with a Year of Service in the Plan
Year for which the contribution is made.
[ ] 3. Is a Participant on the last day of the Plan
Year.
[X] 4. Is credited with a Year of Service in the Plan
Year for which the contribution is made and is a
Participant on the last day of the Plan Year.
In addition, an allocation will be made by the Employer
on behalf of any Participant who retires, dies or
becomes disabled during the Plan Year, regardless of the
number of Hours of Service credited to such Participant
and regardless of whether such Participant is a
participant on the last day of the Plan Year.
Annual Nonelective Contribution [X] Yes [ ] No
Annual Matching Contribution [X] Yes [ ] No
Additional Matching Contribution [X] Yes [ ] No
- --------------------------------------------------------------------------------
2C.1(g) C. Nonannual Allocation Requirement
An allocation of the nonannual Matching Contribution or
nonannual Nonelective Contribution made by the Employer
will be made to each Participant who:
[ ] 1. Is a Participant on any day of the Contribution
Period.
[ ] 2. Is a Participant as of the last day of the
Contribution Period.
In addition, an allocation will be made by the Employer
on behalf of any Participant who retires, dies, or
becomes disabled during the Contribution Period,
regardless of whether such Participant is a Participant
as of the last day of the Contribution Period.
Nonannual Nonelective Contribution [ ] Yes [ ] No
Nonannual Matching Contribution [ ] Yes [ ] No
- --------------------------------------------------------------------------------
-30-
<PAGE>
- --------------------------------------------------------------------------------
Plan Document XIII. LIMITATIONS ON ALLOCATIONS
Section
- --------------------------------------------------------------------------------
4B A. If any Participant is covered by another qualified
defined contribution plan maintained by the Employer,
other than a Master or Prototype plan:
/arrow/ COMPLETE PART A IF YOU: (1) MAINTAIN, OR AT ANY
TIME MAINTAINED, ANOTHer QUALIFIED RETIREMENT PLAN IN
WHICH ANY PARTICIPANT IN THIS PLAN IS, WAS, OR COULD BE,
A PARTICIPANT; OR (2) MAINTAIN A CODE SECTION 415(L)(2)
INDIVIDUAL MEDICAL ACCOUNT, FOR WHICH AMOUNTS ARE
TREATED AS ANNUAL ADDITIONS FOR ANY PARTICIPANT IN THIS
PLAN.
[ ] 1. N/A. The Employer has no other defined
contribution plan(s).
[X] 2. The provisions of Section 4B.5 of the Plan will
apply, as if the other plan were a Master or
Prototype plan.
[ ] 3. The plans will limit total Annual Additions to
the Maximum Permissible Amount, and will reduce
any Excess Amounts in a manner that precludes
Employer discretion, in the following manner:
_________________________________________________
_________________________________________________
- --------------------------------------------------------------------------------
4B B. If any Participant is or ever has been a Participant in
a qualified defined benefit plan maintained by the
Employer:
/arrow/ COMPLETE PART B IF YOU MAINTAIN, OR AT ANY TIME
MAINTAINED, ANOTHER QUALIFIed RETIREMENT PLAN IN WHICH
ANY PARTICIPANT IN THIS PLAN IS, WAS, OR COULD BE A
PARTICIPANT.
[X] 1. N/A. The Employer has no defined benefit plan(s).
[ ] 2. In any Limitation Year, the Annual Additions
credited to the Participant under this Plan may
not cause the sum of the Defined Benefit Plan
Fraction and the Defined Contribution Fraction to
exceed 1.0. If the Employer contributions that
would otherwise be allocated to the Participant's
account during such year would cause the 1.0
limitation to be exceeded, the allocation will be
reduced so that the sum of the fraction equals
1.0. Any contributions not allocated because of
the preceding sentence will be allocated to the
remaining Participants according to the Plan's
allocation formula. If the 1.0 limitation is
exceeded because of an Excess Amount, such Excess
Amount will be reduced in accordance with Section
4B.4 of the Plan.
[ ] 3. Provide the method under which the Plan involved
will satisfy the 1.0 limitation in a manner that
precludes Employer discretion ___________________
_________________________________________________
- --------------------------------------------------------------------------------
-31-
<PAGE>
- --------------------------------------------------------------------------------
Plan Document XIII. LIMITATIONS ON ALLOCATIONS
Section
- --------------------------------------------------------------------------------
C. Compensation will mean all of each Participant's:
/arrow/ EVERYONE MUST COMPLETE SECTION C. IF OPTION 1,
2, OR 3 WAS SELECTED IN SECTIon IV.A., YOU MUST MAKE THE
SAME SELECTION HERE.
4B.1(b)(1) [X] 1. Wages, Tips, and Other Compensation Box on Form
W-2.
4B.1(b)(2) [ ] 2. Section 3401(a) wages.
4B.1(b)(3) [ ] 3. 415 safe-harbor compensation.
- --------------------------------------------------------------------------------
4B.1(h) D. The Limitation Year shall be:
/arrow/ EVERYONE MUST COMPLETE SECTION D.
[ ] 1. The Calendar Year.
[X] 2. The 12-month period coinciding with the Plan
Year.
[ ] 3. The 12-month period beginning on (MM/DD): _______
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Plan Document XIV. INVESTMENT OF PARTICIPANT'S ACCOUNTS
Section
- --------------------------------------------------------------------------------
5A.1 A. The Participant shall/shall not have the authority to
direct the Investment of Contributions made by the
Employer.
[X] Shall [ ] Shall Not
- --------------------------------------------------------------------------------
5A.1 B. If SHALL is elected above, complete the following.
Those having authority to direct the investment of the
Participant's Account are (choose all that apply):
[X] 1. Participants who are active Employees.
[X] 2. Participants who are former employees and
continue to maintain an account in the Plan or
Trust.
[X] 3. Beneficiaries.
[X] 4. Alternate Payees.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Plan Document XV. LIFE INSURANCE
Section
- --------------------------------------------------------------------------------
5B.1 A. Available as a Participant investment:
[ ] Yes [X] No
- --------------------------------------------------------------------------------
-32-
<PAGE>
- --------------------------------------------------------------------------------
Plan Document XV. LIFE INSURANCE
Section
- --------------------------------------------------------------------------------
B. If yes is elected above, Life Insurance shall be
available to:
[ ] 1. All Participants.
[ ] 2. Only to the specified group of Participants (fill
in below):
_________________________________________________
_________________________________________________
_________________________________________________
/arrow/ IF SUBSECTION 2 IS CHECKED, SEPARATE
NONDISCRIMINATION TESTING WILL BE REQUIRED.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Plan Document XVI. EMPLOYER STOCK
Section
- --------------------------------------------------------------------------------
/arrow/ BEFORE ELECTING EMPLOYER STOCK AS AN INVESTMENT OPTION, YOU SHOULD
CONSULT YOUR LEGAL COUNSEL ON ANY FEDERAL OR STATE SECURITIES LAW REQUIREMENTS
ARISING FROM OFFERING EMPLOYER STOCK AS AN INVESTMENT OPTION UNDER YOUR PLAN AND
WHETHER USE OF THIS DOCUMENT IS APPROPRIATE FOR YOU UNDER THOSE LAWS. NEITHER
CONNECTICUT GENERAL LIFE INSURANCE COMPANY NOR ANY OF ITS EMPLOYEES CAN ADVISE
YOU ON THESE MATTERS.
- --------------------------------------------------------------------------------
1.45 A. Investment in Employer Stock is:
[X] Permitted.
[ ] Not Permitted.
/arrow/ YOU MUST COMPLETE THE FOLLOWING SUBSECTIONS B
AND C IF INVESTMENT IN EMPLOYer STOCK IS PERMITTED AND
PARTICIPANTS HAVE THE AUTHORITY TO DIRECT THE INVESTMENT
OF EMPLOYER CONTRIBUTIONS.
- --------------------------------------------------------------------------------
1.45 B. Investment in Employer Stock within the Plan by officers
or directors of the Employer or by an individual who
owns more than 10% of the Employer's Stock is:
[X] Permitted.
[ ] Not Permitted.
- --------------------------------------------------------------------------------
1.45 C. The Trustee:
[ ] 1. Will vote the shares of the Employer Stock.
[X] 2. Will vote the shares of the Employer Stock in
accordance with any instructions received by
the Trustee from the Participant.
/arrow/ OPTION 2 MUST BE SELECTED IF CG TRUST COMPANY
IS THE TRUSTEE.
[ ] 3. May request voting instructions from the
Participants.
- --------------------------------------------------------------------------------
-33-
<PAGE>
- --------------------------------------------------------------------------------
Plan Document XVII. WITHDRAWALS PRECEDING TERMINATION
Section
- --------------------------------------------------------------------------------
/arrow/ COMPLETE ONLY THE SECTIONS FOR THE TYPE OF CONTRIBUTIONS IN YOUR PLAN.
- --------------------------------------------------------------------------------
3E.1(a) A. Withdrawal of Required Employee Contributions.
/arrow/ WITHDRAWAL MAY BE FOR ANY REASOn.
[X] Not Available under the Plan.
[ ] Available under the Plan.
If available, Required Employee Contributions may
be withdrawn:
[ ] Once each 6 months.
[ ] Once each 12 months.
[ ] Other (specify) ________________.
The Contribution suspension period following a
withdrawal of Required Employee Contributions shall
be:
/arrow/ YOU MUST CHOOSE ONE OF THE SUSPENSION
PERIODS SHOWN. RELATED EMPLOYer CONTRIBUTIONS WILL
BE SUSPENDED FOR THE SAME PERIOD.
[ ] 6 Months.
[ ] 12 Months.
[ ] 24 Months.
- --------------------------------------------------------------------------------
3E.1(b) B. Withdrawal of Voluntary Employee Contributions.
/arrow/ WITHDRAWAL MAY BE FOR ANY REASOn.
[X] Not Available under the Plan.
[ ] Available under the Plan.
If available, Voluntary Employee Contributions may
be withdrawn:
[ ] Once each 6 months.
[ ] Once each 12 months.
[ ] Other (specify) ________________.
- --------------------------------------------------------------------------------
-34-
<PAGE>
- --------------------------------------------------------------------------------
Plan Document XVII. WITHDRAWALS PRECEDING TERMINATION
Section
- --------------------------------------------------------------------------------
C. Withdrawal of Elective Deferral Contributions.
[ ] Not Available under the Plan.
[X] Available under the Plan.
If available, select the conditions for withdrawal:
3E.2 [X] Withdrawal upon Participant's attainment
of age 59-1/2.
3E.5 [X] Withdrawal for Serious Financial Hardship.
/arrow/ IF A PARTICIPANT MAKES A WITHDRAWAL OF
ELECTIVE DEFERRAL CONTRIBUTIONS DUE TO A SERIOUS
FINANCIAL HARDSHIP, THE PARTICIPANT MUST BE SUSPENDED
FROM MAKING ANY ADDITIONAL ELECTIVE DEFERRAL
CONTRIBUTIONS FOR A PERIOD OF 12 MONTHS.
- --------------------------------------------------------------------------------
D. Withdrawal of Employer Contributions (Matching,
Nonelective and/or Prior Employer Contributions).
[ ] Not Available under the Plan.
[X] Available under the Plan.
/arrow/ IF PRIOR EMPLOYER CONTRIBUTIONS ARE MONEY
PURCHASE PLAN CONTRIBUTIONS, THEY May NOT BE WITHDRAWN.
If available, select the conditions for withdrawal:
3E.3 [X] 1. Withdrawal upon Participant's attainment of
age 59-1/2.
Available from:
[X] a. Matching Contributions.
[X] b. Nonelective Contributions.
[ ] c. Prior Employer Contributions.
- --------------------------------------------------------------------------------
-35-
<PAGE>
- --------------------------------------------------------------------------------
Plan Document XVII. WITHDRAWALS PRECEDING TERMINATION
Section
- --------------------------------------------------------------------------------
3E.3 [ ] 2. Withdrawals to active Participants who have
been Participants for a minimum of 60
consecutive months.
Available from:
[ ] a. Matching Contributions.
[ ] b. Nonelective Contributions.
[ ] c. Prior Employer Contributions.
Frequency of withdrawal:
[ ] Once each 6 months.
[ ] Once each 12 months.
[ ] Other (specify) _____________.
Suspension Period following withdrawal:
[ ] N/A.
[ ] 6 months.
[ ] 12 months.
[ ] 24 months.
3E.4 [X] 3. Withdrawal for Serious Financial Hardship.
Available from:
[X] a. Matching Contributions.
[X] b. Nonelective Contributions.
[ ] c. Prior Employer Contributions.
Prior Employer Contributions are
contributions made to the Plan by the
Employer prior to the Plan's original
conversion and/or restatement on ______
(fill in date).
- --------------------------------------------------------------------------------
-36-
<PAGE>
- --------------------------------------------------------------------------------
Plan Document XVII. WITHDRAWALS PRECEDING TERMINATION
Section
- --------------------------------------------------------------------------------
3E.6 E. Withdrawal of Rollover Contributions:
[ ] Not Available under the Plan.
[X] Available under the Plan.
If available, Rollover Contributions may be
withdrawn:
[ ] Once per Plan Year.
[ ] Every 6 Months.
[ ] Every 3 Months.
[ ] Every Month.
[X] Anytime.
- --------------------------------------------------------------------------------
3E.6 F. Withdrawal of Qualified Voluntary Employee Contributions
(QVEC Contributions)
/arrow/ APPLICABLE ONLY IF THIS IS A READOPTION OF AN
EXISTING PLAN. IF SELECTEd, CONTRIBUTIONS MAY BE
WITHDRAWN FOR ANY REASON.
[X] Not Available under the Plan.
[ ] Available under the Plan.
If available, Rollover Contributions may be
withdrawn:
[ ] Once per Plan Year.
[ ] Every 6 Months.
[ ] Every 3 Months.
[ ] Every Month.
[ ] Anytime.
- --------------------------------------------------------------------------------
-37-
<PAGE>
- --------------------------------------------------------------------------------
Plan Document XVII. WITHDRAWALS PRECEDING TERMINATION
Section
- --------------------------------------------------------------------------------
3E.1(c) G. Withdrawal of Prior Required Employee Contributions:
/arrow/ WITHDRAWAL MAY BE FOR ANY REASOn.
[X] Not Available under the Plan.
[ ] Available under the Plan.
If available, Prior Required Employee
Contributions may be withdrawn:
[ ] Once every 6 Months.
[ ] Once each 12 months.
[ ] Other (specify) ______________.
Prior Required Employee Contributions are posttax
contributions made by Employees in order to receive an
Employer contribution and which were made before the
Plan's original conversion and/or restatement on (fill
in date).
- --------------------------------------------------------------------------------
3E.1(d) H. Withdrawal of Prior Voluntary Employee Contributions:
/arrow/ WITHDRAWAL MAY BE FOR ANY REASON AND MAY BE
TAKEN AT ANY TIME
[X] Not Available under the Plan.
[ ] Available under the Plan.
Prior Voluntary Employee Contributions are voluntary
contributions made by Employees prior to these types of
contributions being eliminated as a plan option on (fill
in date).
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Plan Document XVIII. LOANS TO PARTICIPANTS, BENEFICIARIES AND
Section PARTIES-IN-INTEREST
- --------------------------------------------------------------------------------
5C A. Loans are permitted.
[X] Yes
/arrow/ IF YES, PLAN MUST BE TRUSTEed
[ ] No
- --------------------------------------------------------------------------------
-38-
<PAGE>
- --------------------------------------------------------------------------------
Plan Document XVIII. LOANS TO PARTICIPANTS, BENEFICIARIES AND
Section PARTIES-IN-INTEREST
- --------------------------------------------------------------------------------
5C B. Loans are available only from the following sources:
/arrow/ QUALIFIED VOLUNTARY EMPLOYEE CONTRIBUTIONS (QVEC
CONTRIBUTIONS) MAY NOT BE TAKEN IN a LOAN.
[X] All Sources.
[ ] List Sources:
_________________________________________________
_________________________________________________
_________________________________________________
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Plan Document XIX. RETIREMENT AND DISABILITY
Section
- --------------------------------------------------------------------------------
1.40 A. Normal Retirement Age is:
[X] 1. The date the Participant attains age 65 (not to
exceed 65).
[ ] 2. The later of:
a. The date the Participant attains age _______
(not to exceed 65), or
b. The _________ (not to exceed 5th) anniversary
of the Participation Commencement Date.
/arrow/ NOTE REGARDING 2.B ABOVE: IF, FOR PLAN
YEARS BEGINNING BEFOre JANUARY 1, 1988, NORMAL
RETIREMENT AGE 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. THE PARTICIPATION COMMENCEMENT
DATE IS THE FIRST DAY OF THE FIRST PLAN YEAR IN
WHICH THE PARTICIPANT COMMENCED PARTICIPATION IN
THE PLAN.
- --------------------------------------------------------------------------------
-39-
<PAGE>
- --------------------------------------------------------------------------------
Plan Document XIX. RETIREMENT AND DISABILITY
Section
- --------------------------------------------------------------------------------
1.18 B. Early Retirement by Participants
1. Early Retirement by Participants is:
[ ] a. Not Permitted.
[X] b. Permitted. Subject to the following
conditions:
[ ] i. Age ___________ (not to exceed 65).
[ ] ii. Years of Service ______________.
[X] iii. Age 55 (not to exceed 65) and 4 Years
of Service.
[ ] iv. Age ___________ (not to exceed 65)
and ___________ Years of
Participation.
- --------------------------------------------------------------------------------
1.16 C. Disability
1. The Employer shall/shall not make contributions on
behalf of disabled Participants who are Nonhighly
Compensated Employees on the basis of the
Compensation each 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.
[X] Shall [ ] Shall Not
/arrow/ ALL SUCH CONTRIBUTIONS ARE 100% VESTED AND
NONFORFEITABLE WHEN MADE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Plan Document XX. DISTRIBUTION OF BENEFITS
Section
- --------------------------------------------------------------------------------
3A.1 A. Distribution of benefits should be in the form of (check
all that apply):
[X] 1. Single Sum.
[X] 2. Life Annuity.
[X] 3. Installment Payments.
[ ] 4. Installment Refund Annuity.
[X] 5. Employer Stock, to the extent the Participant
is invested therein.
- --------------------------------------------------------------------------------
B. Distribution Timing
[ ] 1. All Participants may elect to defer their
distributions.
[X] 2. Participants who terminate employment and
whose account balances never exceeded $3,500
shall receive an immediate, lump sum cash
distribution.
- --------------------------------------------------------------------------------
-40-
<PAGE>
- --------------------------------------------------------------------------------
Plan Document XX. DISTRIBUTION OF BENEFITS
Section
- --------------------------------------------------------------------------------
C. Expenses - Deferred Participants.
1. Participants who elect to defer distribution of their
benefits shall/shall not pay for all fees associated
with administration of their deferral payment.
[X] Shall [ ] Shall Not
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Plan Document XXI. QUALIFIED PRERETIREMENT SURVIVOR ANNUITY
Section
- --------------------------------------------------------------------------------
3C.4 The Qualified Preretirement Survivor Annuity shall be:
/arrow/ 100% IS REQUIRED FOR PLANS ALLOWING ONLY SINGLE
SUM DISTRIBUTIONs.
[X] 100% to the surviving spouse.
[ ] 50% to the surviving spouse.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Plan Document XXII. AMENDMENT TO THE PLAN
Section
- --------------------------------------------------------------------------------
7B A. The party having the authority to amend the Adoption
Agreement is the:
[ ] 1. Trustee(s).
/arrow/ TRUSTEE(S) CANNOT BE CHOSEN IF THE TRUSTEE IS
THE CG TRUST.
[X] 2. Plan Administrator.
[ ] 3. Plan Committee.
[ ] 4. Designated Representative of the Employer.
- --------------------------------------------------------------------------------
-41-
<PAGE>
- --------------------------------------------------------------------------------
Plan Document XXIII. TOP-HEAVY PROVISIONS
Section
- --------------------------------------------------------------------------------
7A.1(i) A. Method to be used to avoid duplication of Top-Heavy
Minimum benefits when a non-Key Employee is a
Participant in both this Plan and a defined benefit plan
maintained by the Employer (select one response):
[X] 1. N/A. The Employer has no other plan(s).
[ ] 2. Single Plan Minimum Top-Heavy Allocation. A
minimum Top-Heavy contribution will be allocated
to each non-Key Employee's Participant Account in
an amount equal to:
[ ] a. The lesser of 3% of Compensation or the
highest percentage allocated to any Key
Employee.
[ ] b. ___________% of Compensation (must be at
least 3%).
[ ] 3. Multiple Plans Top-Heavy Allocation. In order to
satisfy Code sections 415 and 416, and because of
the required aggregation of multiple plans, a
minimum Top-Heavy contribution will be allocated
to each non-Key Employee in an amount equal to:
[ ] a. Not Applicable. No other plan was in
existence prior to the Effective Date of
this Adoption Agreement.
[ ] b. 5% of Compensation, to be provided in a
defined contribution plan of the Employer.
[ ] c. 7-1/2% of Compensation, to be
nonintegrated, and provided in this Plan.
/arrow/ IF C IS CHOSEN, FOR ALL PLAN YEARS IN
WHICH THIS PLAN IS TOP-HEAvy (BUT NOT SUPER
TOP-HEAVY), THE DEFINED BENEFIT AND DEFINED
CONTRIBUTION FRACTIONS SHALL BE COMPUTED USING
125%.
[ ] 4. Enter the name of the plan(s) and specify the
method under which the plan(s) will provide
Top-Heavy Minimum Benefits to non-Key Employees
[include any adjustments required under Code
section 415(e)]:
_________________________________________________
_________________________________________________
_________________________________________________
/arrow/ IF 4 IS SELECTED, THE METHOD SPECIFIED MUST
PRECLUDE EMPLOYER DISCRETION And INADVERTENT OMISSIONS.
- --------------------------------------------------------------------------------
-42-
<PAGE>
- --------------------------------------------------------------------------------
Plan Document XXIII. TOP-HEAVY PROVISIONS
Section
- --------------------------------------------------------------------------------
7A.1 B. Present Value: In order to establish the present value
to compute the Top-Heavy Ratio, any benefit shall be
discounted only for mortality and interest, based on:
/arrow/ COMPLETE B ONLY IF RESPONSE TO A IS 2, 3, OR 4.
FILL IN ALL BLANKs.
[ ] 1. Interest Rate ___________%.
[ ] 2. Mortality Table __________.
[ ] 3. Valuation Date __________.
- --------------------------------------------------------------------------------
7A.2 C. Where a non-Key Employee is a Participant in this and
another defined contribution plan(s) of the Employer,
choose which plan will provide the minimum Top-Heavy
contribution:
[ ] 1. N/A. The Employer has no other plan.
[X] 2. The minimum allocation will be met in this Plan.
[ ] 3. The minimum allocation will be met in the other
defined contribution plan. Enter the name of the
plan:
_________________________________________________
- --------------------------------------------------------------------------------
7A.3 D. Top-Heavy Vesting Schedule. In the event the plan
becomes Top-Heavy, the vesting schedule shall be:
/arrow/ MUST MEET ONE OF THE SCHEDULES BELOW AND MUST BE
AT LEAST AS LIBERAL AS The VESTING SCHEDULE ELECTED IN
SECTION IX.A.
[ ] 1. 100% vesting after (not to exceed 3) years of
Service.
[ ] 2. ___________% vesting after 1 Year of Service.
___________% (not less than 20) vesting after 2
Years of Service.
___________% (not less than 40) vesting after 2
Years of Service.
___________% (not less than 60) vesting after 2
Years of Service.
___________% (not less than 80) vesting after 2
Years of Service.
100% vesting after 6 Years of Service
[X] 3. Same vesting schedule(s) as elected in Adoption
Agreement Section IX (already meets Top-Heavy
minimum vesting requirements).
/arrow/ IF THE VESTING SCHEDULE UNDER THE PLAN SHIFTS
INTO THE ABOVE SCHEDULE FOR Any PLAN YEAR BECAUSE OF THE
PLAN'S TOP-HEAVY STATUS, SUCH SHIFT IS AN AMENDMENT TO
THE VESTING SCHEDULE AND THE ELECTION PROVISIONS IN
SECTION 7B.1 OF THE PLAN SHALL APPLY.
/arrow/ THE TOP-HEAVY VESTING SCHEDULE WILL REMAIN IN
EFFECT EVEN IF THE PLAN CEASES to BE TOP HEAVY.
- --------------------------------------------------------------------------------
-43-
<PAGE>
- --------------------------------------------------------------------------------
Plan Document XXIV. OTHER ADOPTING EMPLOYER
Section
- --------------------------------------------------------------------------------
6E.1, 6E.2 A. The following Adopting Employer(s) also adopt this plan
and have executed this Adoption Agreement:
/arrow/ FILL IN BELOW THE NAMES AND THE EMPLOYER
IDENTIFICATION NUMBERS (EINS) of ADOPTING
EMPLOYERS.
/arrow/ MUST MEET REQUIREMENTS OF PLAN DEFINITION
OF EMPLOYER, PLAN SECTION 1.24.
_________________________________________________
_________________________________________________
_________________________________________________
- --------------------------------------------------------------------------------
-44-
<PAGE>
The Employer hereby adopts the Connecticut General Life Insurance Company
Defined Contribution Prototype Profit Sharing/Thrift Plan with 401(k) Feature,
including all elections made in this Non-Standardized Adoption Agreement, and
the Employer agrees to be bound by all the terms of the Plan and by all the
terms of this Adoption Agreement and of the Annuity Contract. The Employer
further agrees that it will furnish promptly all information required by the
Trustee, if applicable, the Plan Administrator and the Insurance Company in
order to carry out their functions. The Employer shall notify the Trustee, if
applicable, the Plan Administrator and the Insurance Company promptly of any
changes in the status of the Employer which might affect the Employer's duties
and responsibilities hereunder.
The elections under this Adoption Agreement may be changed by the Employer from
time to time by a written instrument signed by the Employer, the Plan
Administrator and the Trustee, if applicable, and accepted by the Plan Sponsor.
The Employer consents to the exercise by the Plan Sponsor of the right to amend
the Plan and the Annuity Contract from time to time as it may deem necessary or
advisable.
By signing this Adoption Agreement, the Employer specifically acknowledges that
the Insurance Company has no authority: (1) to answer legal questions and that
all such questions shall be answered by legal counsel for the Employer; and (2)
to make determinations involved in the administration of the Plan and that all
such determinations shall be answered by the Employer's Plan Administrator or
other designated representative.
Upon execution of this Adoption Agreement by the Employer, the Plan shall be
effective with respect to that Employer as of the Effective Date specified
herein, provided the Plan Administrator and the Trustee, if applicable, shall
then or thereafter execute this Adoption Agreement to signify their acceptance
of their duties and responsibilities hereunder and provided further, the Plan
Sponsor will indicate its acceptance of the Employer in accordance with its
usual rules and practices.
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 Internal Revenue Code section 401. In order to obtain reliance with
respect to plan qualification, the Employer must apply to the appropriate key
district office for a determination letter.
Connecticut General Life Insurance Company will inform the Employer of any
amendments made to the Plan or of the discontinuance or abandonment of such
Plan.
CAUTION: You should very carefully examine the elections you have made in this
Adoption Agreement and discuss them with your legal counsel. Failure to properly
fill out the Adoption Agreement may result in disqualification of your plan.
This Adoption Agreement may only be used in conjunction with Basic Plan Document
Number 03.
(Note: The Employer, Plan Administrator and Trustee, if applicable, must all
sign below.)
Executed at Delray Beach, FL, this 8th day of September, 1998.
Employer's Exact Name: Travel Services International, Inc.
Witness: /s/ Lisa DiBona By: /s/ Jill M. Vales
Title: Sr. Vice Pres. & C.F.O.
Additional Adopting Employer's Exact Name: N/A
Witness: ___________________________ By: ___________________________________
Title: ___________________________________
-45-
<PAGE>
Additional Adopting Employer's Exact Name: -----
Witness: ___________________________ By: ___________________________________
Title: ___________________________________
Additional Adopting Employer's Exact Name: -----
Witness: ___________________________ By: ___________________________________
Title: ___________________________________
Additional Adopting Employer's Exact Name: -----
Witness: ___________________________ By: ___________________________________
Title: ___________________________________
ACCEPTED this 8th day of September, 1998.
Witness: /s/ Lisa Di Bona By (Plan Administrator): /s/ Jill M. Vales
Witness: ________________________ By (Plan Administrator): _________________
Witness: ________________________ By (Plan Administrator): _________________
Witness: ________________________ By (Trustee): _______________________
Witness: ________________________ By (Trustee): _______________________
Witness: ________________________ By (Trustee): _______________________
ACCEPTED this 1st day of October, 1998.
CONNECTICUT GENERAL LIFE INSURANCE COMPANY
By (Authorized Representative): /s/ B Oliver
----------------
-46-
<PAGE>
APRIL 1, 1999
AMENDMENT
TO
TRAVEL SERVICES INTERNATIONAL, INC. 401(K) RETIREMENT PLAN
The Travel Services International, Inc. 401(k) Retirement Plan, maintained
througha adoption of the Connecticut General Life Insurance Company Defined
Contribution Prototype Profit Sharing/Thrift Plan with 401(k) Feature, Basic
Plan Document 03, by execution of a Non-Standardized Adoption Agreement Number
001-03 effective July 1, 1998, is hereby amended as follows:
1. Effective April 1, 1999, the Adoption Agreement is amended by replacing
current pages 33 and 40 with revised pages 33 and 40 dated April 1,
1999, as attached to and made part of this Amendment.
Note: The Employer must execute the Amendment as provided below. The Plan
Administrator (if different than the Employer) and the Trustee(s) must sign the
second page of the Amendment as indicated to show acceptance. This Amendment
must be accepted by Connecticut General Life Insurance Company as Plan Sponsor.
EXECUTED AT ________________________, this 29 day of March, 1999
Travel Services International, Inc.
Witness: /s/ Lisa Di Bona By: /s/ Jill M. Vales
Title: Sr. Vice Pres.
-1-
<PAGE>
April 1, 1999 Amendment to
Travel Services International, Inc. 401(k) Retirement Plan
ACCEPTED this 29 day of March, 1999
Witness: /s/ Lisa Di Bona By: /s/ Jill M. Vales
----------------------------------
Plan Administrator
-2-
EXHIBIT 99.2
MINUTES OF A MEETING
OF THE BOARD OF DIRECTORS
OF
TRAVEL SERVICES INTERNATIONAL, INC.
(Held on April 29, 1998)
WHEREAS, the Board of Directors (the "Board") believes that it is in
the interest of Travel Services International, Inc. (the "Company") to provide
certain benefits to employees of the Company and its subsidiaries in order to
attract, motivate and retain qualified personnel;
WHEREAS, the Company had engaged a consultant to review and analyze the
types of benefits that can be provided and management, together with such
consultant, has recommended the adoption of a 401(k) Retirement Plan;
WHEREAS, the terms and provisions of the 401(k) Retirement Plan have
been presented to the Board at this meeting;
NOW, THEREFORE, BE IT RESOLVED, that The Travel Services International,
Inc. 401(k) Retirement Plan (the "401(k) Plan"), substantially in the form
presented to the Board, be and hereby is adopted, to be effective as of July 1,
1998;
RESOLVED FURTHER, that The Travel Services International, Inc. 401(k)
Retirement Plan Trust"), substantially in the form presented to the Board, be
and hereby is adopted effective as of July 1, 1998;
RESOLVED FURTHER, that CIGNA be and hereby is approved effective as of
July 1, 1998 to provide investment and administrative services related to the
401(k) Plan;
RESOLVED FURTHER, that John DeLano, Robert Falcone and Jill Vales be,
and each of them hereby is, appointed as a member of the "Retirement Plan
Committee" to administer the 401(k) Plan effective as of July 1, 1998;
RESOLVED FURTHER, that the qualified Domestic Relations Order Policy,
Loan Policy and Investment Policy, substantially in the form presented to the
Board, be and hereby is adopted effective as of July 1, 1998;
<PAGE>
RESOLVED FURTHER, that for purposes of the limitations on contributions
and benefits under the 401(k) Plan, prescribed by Section 415 of the Internal
Revenue code, the "limitation year" shall be the calendar year;
RESOLVED FURTHER, that shares of the Company's Common Stock will be
offered as an investment option to participants effective as of October 1, 1998
and that the Company will take such step as management, in its discretion, deems
necessary or desirable in order to register the shares of Common Stock so
offered;
RESOLVED FURTHER, that the Company will match participant contributions
for the period from July 1, 1998 to December 31, 1998, for all participants
actively employed on December 31, 1998, at a rate of 25% of the first 6% of
compensation contributed by the participant; and
RESOLVED FURTHER, that the Chief Financial Officer of the Company be
and hereby is authorized to take any further steps necessary to implement the
401(k) Plan and to secure a favorable determination letter from the Internal
Revenue Service.
/s/ SUZANNE B. BELL, ESQ.
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Secretary of the Meeting
